Appeals court concurs with trial judge

Wednesday, November 25, 2009

A Lewisburg man who was convicted in May 2007 on statutory rape charges has lost in his request for a new trial or probation because the Tennessee Court of Criminal Appeals ruled against him, according to the court's opinion issued late last week.

Eric Condrell O'Neal, 30, was found guilty by a Marshall County Circuit Court jury that heard evidence from Carol B. Jean, a Lewisburg detective who subsequently went to work for the Shelbyville Police Department. Her investigation showed that O'Neal took a 15-year-old girl to a motel.

While the appeals court opinion written by Judge Jerry L. Smith includes information that the girl went willingly, the difference in their ages was a factor in the crime.

O'Neal was represented by Don Himmelberg of Nashville during the trial and attorney Hershell D. Koger represented O'Neal for his appeal when the convict said there was insufficient evidence for a conviction and that if he was sentenced, he deserved probation. Assistant District Attorney Eddie Barnard prosecuted O'Neal.

There were two trials for O'Neal. The first ended with a hung jury.

Smith's opinion shows that O'Neal couldn't get the girl's phone number from her, but that he gave her his number and that she called him. She knew why they were going to the motel in Lewisburg, the appeals court judge wrote.

The police investigation began on Jan. 7, 2006, and the motel operator cooperated by providing information from the register about dates the day before and on Nov. 18, 2005.

Koger argued for O'Neal that there was no physical evidence, but Smith wrote that based on previous cases, testimony of a victim is sufficient and that the credibility of the victim's testimony is a question for the jury to decide. The jury deliberated for about two hours.

After the verdict was announced, Circuit Court Judge Robert Crigler raised O'Neal's bond from $12,000 to $36,000 and subsequently sentenced him to one year and nine months for each of the two convictions and that those terms were to be served at the same time.

Crigler's decision against granting probation was substantiated, in part, by O'Neal's previous criminal record, Smith said. Koger had argued that O'Neal deserved another chance because of his "social history."

Smith quoted Crigler as saying that "less restrictive measures than confinement have frequently and recently been applied unsuccessfully to the defendant." O'Neal was on probation for a robbery when he was charged with statutory rape. Previously, he'd been sentenced "for possession of drugs where he had been placed on probation a little over one year before committing the robbery. In addition, (O'Neal) had four suspended sentences between 1997 and 2003," Smith wrote.

Both arguments for O'Neal's appeal are "without merit," the appeals court judge wrote, upholding Crigler's rulings.