State v. Bacon
Opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED JULY SESSION, 1997 January 8, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9608-CR-00308 )
Appellee, )
)
) SULLIVAN COUNTY
VS. )
) HON. FRANK L. SLAUGHTER ROBERT BACON, ) JUDGE )
Appe llant. ) (Rape)
ON APPEAL FROM THE JUDGMENT OF THE CRIMINAL COURT OF SULLIVAN COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
JAMES A. NIDIFFER JOHN KNOX WALKUP 201 W. W atauga Avenue Attorney General and Reporter P.O. Box 118 Johnson City, TN 37605 TIMOTHY F. BEHAN Assistant Attorney General 425 5th Avenu e North
Nashville, TN 37243
GREELEY W ELLS
District Attorney General
TERESA MURRAY-SMITH
Assistant District Attorney General Blountville, TN 37617
OPINION FILED ________________________
CONVICTION AFFIRMED; REMANDED FOR FURTHER SENTENCING PROCEEDINGS
DAVID H. WELLES, JUDGE
OPINION
This is an appeal as of right pursuant to Rule 3 of the Tennessee Rules of Appe llate Procedure. The D efenda nt, Robert Bacon, was convicted by a Sullivan Coun ty jury of rape.1 He was sentenced as a Range I, standard offender to eight years and fined twenty-five hundred dollars ($2500.00). He was ord ered to serve his sen tence in com mun ity corre ctions . The Defe ndan t now a ppea ls his conviction raising ten issues for review:
(1) Tha t the eviden ce is insuffic ient to sup port a verd ict of guilt;
(2) that the verdict is against the weight of the evidence and the trial cou rt erred by failing to gran t a new trial;
(3) that the S tate failed to disclose exculpa tory eviden ce prior to the trial;
(4) that the trial court erred by admitting hearsay evidence under the excited utterance exception;
(5) that the trial court erred by failing to suppress tape-recorded telephone conversations between the victim and the Defe ndant;
(6) that the trial court erred by failing to submit to the jury transcripts of the tape-recorded telephone conversations;
(7) that the indictm ent wa s fatally d efective beca use it did not allege the requisite mens rea for rape;
(8) that the court failed to timely rule upon the Defendant’s motio ns, de nying h im a fu ll and fa ir trial;
(9) that the trial court erred by failing to gran t the D efend ant’s motio ns for a mistria l;
(10) that the trial cou rt erred by allow ing the jury to su bmit questions for a witness.
The State appeals the trial court’s p lacing the Defen dant in co mm unity corrections. We affirm the Defendant’s conviction for rape, but reverse and
1 Tenn. Code Ann. § 39-13-503.
remand to the trial court for further proceedings to properly determine the manner of service of the sentence.
The State presented the following proof at trial. Lisa Harwood, the victim, testified that she was twenty-nine years old and married with three children. The youngest was three weeks old at the time of trial. She testified that her husband, Mike Harwood, and the Defendant had been friends since childhood. She met the Defen dant once when she was fifteen or sixteen and he visited her home briefly on two occa sions prio r to the incide nts in que stion. Th e Defe ndant a nd Mr. Harwood worked at the same company as truck drivers. In the past, both of the Harwood s had invited the D efendant an d his wife over for dinner, bu t this never occurred.
Mrs. Harwood testified that on March 28th, 1995, a Tuesday, between 8:00 and 9:00 a.m., she called the Defendant to invite him and his wife over for dinner that next weekend. She did not recall whether she and the Defendant discussed the fact that Mr. Harwood was go ne on a work trip. After the phone conversation, she took a shower and dressed her children. Approximately forty-five minutes after she hung up the phone, or between 10:15 and 11:00 a.m., the Defendant showed up at her hom e unanno unced. Mrs . Harwood w as in the bathroom brushing her teeth and her five-year-old tried to open the door. Mrs. Harwood then went to the door to unlock it. When she saw the Defendant she was not surprised because he was a friend. The Defendant stated that he was getting a part for his motorcycle near her home, so he stopped by. Mrs. Harwood did not see a motorcycle, but did notice the Defendant’s red truck parked in the driveway. The Defe ndan t cam e in the trailer an d the tw o talke d in the kitchen while Mrs.
Harwood finished cleaning up. He discussed where Mr. Harwood was traveling and showed Mrs. Harwood a map. The Defendant talked about religion and apolog ized for his behavio r on the p revious S aturday n ight.
He had visited the Harwoods, also unannounced, on the previous Saturday, March 25, 1995. He arrived at approximately 6:30 to 7:00 p.m. The family was going to the store, but decided to stay at home after the Defendant arrived. The Defe ndan t and M r. Harw ood w ent to th e store while Mrs. Harwood stayed and ba thed the children. The two men returned within an hour and the Defendant heate d a froz en din ner in the microwave. Both were drinking beer and sitting in the kitche n. At som e point, Mrs. Harwood sat with them and talked, but she continued to work around the house. She noticed that the men rented a pay-per-view movie on television and ha d move d into the living room to watch it. The movie appeared to be women modeling lingerie. The men le ft briefly to buy more beer. At approximately 11:00 p.m., Mr. Harwood decided to take a shower because he had just returned from a trip. Mrs. Harwood testified that she sat on a loveseat in the living room and the Defendant continued to sit in a chair and watch the movie. Mrs . Harwood got up and the Defendant grabbed her and asked her to touch him and she pulled away, saying that it was not going to happen.
Mrs. Harwood testified that she was upset and nervous and went into the kitchen. She went back through the living room to go outside, at which point the Defendant grabbed her again and expose d his pen is. He kep t asking h er to touch his penis because he needed som eone to help him ou t. He ask ed her to touch it either “one more time” or “one time.” Mrs. Harwood told him to stop
because her hu sban d wou ld soon finish his shower. She testified that she did not call out to her hu sband becau se he h ad bee n drinking and sh e wante d to avoid a fight. The Defendant appeared to be intoxic ated. They heard the bathroom door open and th e Def enda nt pulle d up h is pants . The D efend ant sta ted: “H e’ll never know. I’m good at this.” Mr. Harwood returned to the living room and encouraged the Defendant to stay because he had been drinking. The Defendant declined and left after a few minutes.
Mrs. Harwood later told her husband what the Defendant had done. The next morning, a Sunday, the Defendant telephoned the Harwoods and apologized for his behavior. He blam ed it on marital problems and that he prayed abou t it and the Lord had forgiven him. Mrs. Harwood testified that he seemed sincere and very believable.
On Tuesda y, the 28th, after the Defenda nt sho wed u p at the Harw ood’s residence, he and Mrs. Harwood talked. The Defendant was wearing sweatpants and a leather jacket. Mrs. Harwood was wearing a white tee shirt, black pants, and had a towel on her head because her hair was s till wet. Mr s. Har wood ’s father came and picked up her five-year-old daughter to spend Tuesday night with them . Her tw o-yea r-old w as still in the hom e, but fell asle ep. Mrs. Harwood and the Defendant sat in the living room at approxim ately 12:0 0 to 12:30 p.m. to watch televisio n. She testified that she sat in a chair next to the bar while the Defenda nt chose to stan d near her.
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED JULY SESSION, 1997 January 8, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9608-CR-00308 )
Appellee, )
)
) SULLIVAN COUNTY
VS. )
) HON. FRANK L. SLAUGHTER ROBERT BACON, ) JUDGE )
Appe llant. ) (Rape)
ON APPEAL FROM THE JUDGMENT OF THE CRIMINAL COURT OF SULLIVAN COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
JAMES A. NIDIFFER JOHN KNOX WALKUP 201 W. W atauga Avenue Attorney General and Reporter P.O. Box 118 Johnson City, TN 37605 TIMOTHY F. BEHAN Assistant Attorney General 425 5th Avenu e North
Nashville, TN 37243
GREELEY W ELLS
District Attorney General
TERESA MURRAY-SMITH
Assistant District Attorney General Blountville, TN 37617
OPINION FILED ________________________
CONVICTION AFFIRMED; REMANDED FOR FURTHER SENTENCING PROCEEDINGS
DAVID H. WELLES, JUDGE
OPINION
This is an appeal as of right pursuant to Rule 3 of the Tennessee Rules of Appe llate Procedure. The D efenda nt, Robert Bacon, was convicted by a Sullivan Coun ty jury of rape.1 He was sentenced as a Range I, standard offender to eight years and fined twenty-five hundred dollars ($2500.00). He was ord ered to serve his sen tence in com mun ity corre ctions . The Defe ndan t now a ppea ls his conviction raising ten issues for review:
(1) Tha t the eviden ce is insuffic ient to sup port a verd ict of guilt;
(2) that the verdict is against the weight of the evidence and the trial cou rt erred by failing to gran t a new trial;
(3) that the S tate failed to disclose exculpa tory eviden ce prior to the trial;
(4) that the trial court erred by admitting hearsay evidence under the excited utterance exception;
(5) that the trial court erred by failing to suppress tape-recorded telephone conversations between the victim and the Defe ndant;
(6) that the trial court erred by failing to submit to the jury transcripts of the tape-recorded telephone conversations;
(7) that the indictm ent wa s fatally d efective beca use it did not allege the requisite mens rea for rape;
(8) that the court failed to timely rule upon the Defendant’s motio ns, de nying h im a fu ll and fa ir trial;
(9) that the trial court erred by failing to gran t the D efend ant’s motio ns for a mistria l;
(10) that the trial cou rt erred by allow ing the jury to su bmit questions for a witness.
The State appeals the trial court’s p lacing the Defen dant in co mm unity corrections. We affirm the Defendant’s conviction for rape, but reverse and
1 Tenn. Code Ann. § 39-13-503.
remand to the trial court for further proceedings to properly determine the manner of service of the sentence.
The State presented the following proof at trial. Lisa Harwood, the victim, testified that she was twenty-nine years old and married with three children. The youngest was three weeks old at the time of trial. She testified that her husband, Mike Harwood, and the Defendant had been friends since childhood. She met the Defen dant once when she was fifteen or sixteen and he visited her home briefly on two occa sions prio r to the incide nts in que stion. Th e Defe ndant a nd Mr. Harwood worked at the same company as truck drivers. In the past, both of the Harwood s had invited the D efendant an d his wife over for dinner, bu t this never occurred.
Mrs. Harwood testified that on March 28th, 1995, a Tuesday, between 8:00 and 9:00 a.m., she called the Defendant to invite him and his wife over for dinner that next weekend. She did not recall whether she and the Defendant discussed the fact that Mr. Harwood was go ne on a work trip. After the phone conversation, she took a shower and dressed her children. Approximately forty-five minutes after she hung up the phone, or between 10:15 and 11:00 a.m., the Defendant showed up at her hom e unanno unced. Mrs . Harwood w as in the bathroom brushing her teeth and her five-year-old tried to open the door. Mrs. Harwood then went to the door to unlock it. When she saw the Defendant she was not surprised because he was a friend. The Defendant stated that he was getting a part for his motorcycle near her home, so he stopped by. Mrs. Harwood did not see a motorcycle, but did notice the Defendant’s red truck parked in the driveway. The Defe ndan t cam e in the trailer an d the tw o talke d in the kitchen while Mrs.
Harwood finished cleaning up. He discussed where Mr. Harwood was traveling and showed Mrs. Harwood a map. The Defendant talked about religion and apolog ized for his behavio r on the p revious S aturday n ight.
He had visited the Harwoods, also unannounced, on the previous Saturday, March 25, 1995. He arrived at approximately 6:30 to 7:00 p.m. The family was going to the store, but decided to stay at home after the Defendant arrived. The Defe ndan t and M r. Harw ood w ent to th e store while Mrs. Harwood stayed and ba thed the children. The two men returned within an hour and the Defendant heate d a froz en din ner in the microwave. Both were drinking beer and sitting in the kitche n. At som e point, Mrs. Harwood sat with them and talked, but she continued to work around the house. She noticed that the men rented a pay-per-view movie on television and ha d move d into the living room to watch it. The movie appeared to be women modeling lingerie. The men le ft briefly to buy more beer. At approximately 11:00 p.m., Mr. Harwood decided to take a shower because he had just returned from a trip. Mrs. Harwood testified that she sat on a loveseat in the living room and the Defendant continued to sit in a chair and watch the movie. Mrs . Harwood got up and the Defendant grabbed her and asked her to touch him and she pulled away, saying that it was not going to happen.
Mrs. Harwood testified that she was upset and nervous and went into the kitchen. She went back through the living room to go outside, at which point the Defendant grabbed her again and expose d his pen is. He kep t asking h er to touch his penis because he needed som eone to help him ou t. He ask ed her to touch it either “one more time” or “one time.” Mrs. Harwood told him to stop
because her hu sban d wou ld soon finish his shower. She testified that she did not call out to her hu sband becau se he h ad bee n drinking and sh e wante d to avoid a fight. The Defendant appeared to be intoxic ated. They heard the bathroom door open and th e Def enda nt pulle d up h is pants . The D efend ant sta ted: “H e’ll never know. I’m good at this.” Mr. Harwood returned to the living room and encouraged the Defendant to stay because he had been drinking. The Defendant declined and left after a few minutes.
Mrs. Harwood later told her husband what the Defendant had done. The next morning, a Sunday, the Defendant telephoned the Harwoods and apologized for his behavior. He blam ed it on marital problems and that he prayed abou t it and the Lord had forgiven him. Mrs. Harwood testified that he seemed sincere and very believable.
On Tuesda y, the 28th, after the Defenda nt sho wed u p at the Harw ood’s residence, he and Mrs. Harwood talked. The Defendant was wearing sweatpants and a leather jacket. Mrs. Harwood was wearing a white tee shirt, black pants, and had a towel on her head because her hair was s till wet. Mr s. Har wood ’s father came and picked up her five-year-old daughter to spend Tuesday night with them . Her tw o-yea r-old w as still in the hom e, but fell asle ep. Mrs. Harwood and the Defendant sat in the living room at approxim ately 12:0 0 to 12:30 p.m. to watch televisio n. She testified that she sat in a chair next to the bar while the Defenda nt chose to stan d near her.
Mrs. Harwood turned away to put down her drink and the Defendant got on the chair. He put his legs on the arm s of the chair, grabb ed he r arms , and to ld
her he wa nted h er to “su ck his d ick.” Mr s. Har wood said “no.” The D efend ant’s crotch area was near her face. While holding her wrists, the Defendant then pulled down his sw eatpants with h is thumbs a nd expose d his penis. Mrs . Harwood testified that she pulled h er wrists away an d tried to h it him. The Defendant then grabbed h er arm s and pinne d them to the c hair arm s with h is knees on her elbows . The D efenda nt tried to forc e his pen is in her m outh with his hands. Mrs. Harwood kept telling him no and the Defendant stated: “You know you want to do this. You know this is really what you want to do.” He pulled her hair and pushed his penis in her mouth. Mrs. Harwood estimated that it was in her m outh fo r three minu tes. Up on he aring a neigh bor pu ll a car in the driveway , the Defe ndant s topped , pulled his p ants up and stated : “This does n’t change anything. We can still be friends. I’ll call you later.” He then left. After the Defen dant left, Mrs. H arwood went into the bathroom to throw up. She sat down, wondering what happened and feeling shocked that her husband’s friend did such an act. She eventually called her neighbor, Wanda Lucas, at approximate ly 6:00 p.m. Ms. Lucas came to Mrs. Harwood’s trailer, heard her story and told her to call the police.
After being interviewed by Detective Ty Boomershine of the Sullivan Coun ty Sheriff’s Department, she agreed to tape-record telephone calls to the Defen dant. Recordings of two calls were played for the jury at trial. Mrs. Harwood testified that s he did no t ask nor did she give permission to the Defenda nt to do any acts to her.
On cross-examination, Mrs. Harwood testified that she talked on the telephone with the Defendant on a number of occasions. He would ask about her
husb and’s work trips an d wou ld ask fo r inform ation th at mig ht ass ist him with his upcoming trips. Mrs. Harwood admitted that on the Saturday evening when the Defendant was visiting, she drank two sips of her h usba nd’s beer and consumed one alcoholic b everage of som e type. She admitted to stating in the preliminary hearing that she drank half a beer and a glass of wine. She denied assisting the men order the pay-per- view mo vie on televis ion. Mrs. Harwood testified that Mr. Harwood and the Defendant went back to the bedro om, b ut she did not go back there. She stated that her husband told her later that he showed their sexual devices and g ave a p air of m en’s red underwear to the Defendant. She admitted owning a pink rubber penis, but denied that it had a nickname of “Pinky.” Mrs. Harwood testified that the Defendant began discussing his sexual frustrations with his wife and she suggested he talk to his pastor. She denied making any sexual co mm ents to the Defen dant.
Mrs. Harwood saw a pair of red underwear lying by the Defe ndant’s c oat.
She testified that she watch ed approxim ately ten minutes of the lingerie movie while her hu sban d was in the shower. After the Defendant first grabbed her, she went into the kitche n, then again went pa st him to get outside where she was going to wait for her h usban d to get ou t of the sho wer. She called the Defendant to invite him to dinner at Mr. Harwood’s suggestion. Mrs. Harwood testified that she let the Defendant in the trailer on that Tuesday because he had apologized and it seemed sincere and she attributed his behavior to being intoxicated. She admitted that in the preliminary hearing, she had testified that the Defendant had been let in the house by her daughter. She also stated that after the Defendant grabbed her arms and pinned her in the chair, she attempted to kick him in the groin as well as hit him. She ad mitted tha t, as the D efenda nt was a ttempting to
force his penis in her mouth, she was moving her head from side to side and telling him to stop. The Defendant did not force her mouth open, but eventu ally forced his penis in her mouth as she was talking the whole time. The Defendant left her home sometime after 12:00 p.m. She did not call her neighbor until 4:00 or 5:00 p.m. and her neighbor came to her trailer at approximately 7:00 p.m. Mrs. Harwood did not recall whether the Defendant ejaculated in her mouth. She admitted that she did not tell the Defendant he was being tape-recorded when she m ade the telephon e calls to him .
Mrs. Harwood’s father testified that when he went to the trailer to pick up his granddaugh ter, he saw no one but his daughter and granddaughters. He arrived sometime in the m iddle of the morning. He testified that Mr. Harwood has a temper and gets mad.
The State a lso pre sente d the te stimo ny of W anda Luca s, the H arwoo d’s neighbor. Ms. Lucas testified that she lived within the group of four mob ile homes where the Harwood’s lived. Mrs. Harwood telephoned her to come over and she sounded upset. She estimated this was at approximate ly 3:00 p.m . When she arrived, Mrs. Harwood was crying, her eyes were red and she was really nervous and upset. Mrs. Harwood told her that the Defendant forced her to perform oral sex. Ms. Lucas had noticed a red truck at the Harwood’s that day and on the pr evious S aturday. On cross-examination, Ms. Lucas stated that she saw the red truck there after Mrs. Harwood’s father left. Mrs. Harwood described how the incident occurred and that she was pinned in a chair and that the Defendant forced h er to perfo rm oral s ex. Ms. Lucas and her husband encouraged Mrs. Harwood to call the police.
Next, the State presen ted testim ony from Mike H arwood , the victim ’s husband. The Defendant was a childhood friend and coworker of Mr. Harwood. Mike Harwood testified at trial that he helped the Defendant secure a truck driving job at his place of emp loymen t. The Defendant and Mr. Harwood traveled together for work o n two oc casions . They maintaine d a so cial rela tionsh ip in which the Defendant mentioned that he was having some marital problems, but did not elabo rate. Mr. H arwood testified that th e Defe ndant “popp ed in” a t his home at 6:30 or 7:00 p.m . on March 25th, the Saturday before the rape. Harwood and his family, who were leaving to go grocery shopping, decided to stay at home because they had company. Mr. Harwood and the Defendant then decided to get some groceries and a six-pack of beer and return home. The Defendant boug ht froze n dinn ers wh ich he later he ated in the Ha rwood ’s microwave. The Defendant telephoned his wife several times, but could not reach h er.
Mr. Harwood testified that while the two m en talked, Mrs . Harwood did housew ork and cared for the two children. Both men sat and talked in the living room, drank the beer, and decided to rent a pay-per-view movie on television which fea tured wo men m odeling ling erie. There was no actual nud ity nor were sex acts depicted in the film. The men continued to talk while the television was on. Mrs. Harwo od was ba thing and read ying the children for bed. The Defendant told Mr. Harw ood th at he w as ha ving m arital pro blem s bec ause his wife was sexually unresponsive. Mr. Harwood took the Defendant to bedroom to show h im som e sexua l toys or dev ices. Mrs. Harwood was not present in the bedroom at this time. Mr. Harwood gave the Defendant a pair of men’s red novelty briefs with “Home of t he W hopper” em blazoned o n the front. Mr.
Harwood was n ot awa re if his wife knew anything about the men’s conversation or his gift to the De fendan t. The men returned to the living room at which point Mr. Harwood decided to take a shower because he had not cleaned up since returning from his trip. Mrs. Ha rwood wa s in the kitchen. After his shower, Mr. Harwood encouraged the Defendant to stay overnight rather than a llowing him to drive because they both had been drinking. The Defen dant de clined an d left shortly ther eafter.
The Defendant called a few minutes later at Mr. Harwood’s request when he reached his home be cause of Harw ood’s co ncern a bout his d riving safely. Mr. Harwood testified that afterward, his wife said that the Defendant had pulled her toward him a nd asked her to touch him. Mr. Harwood was angry, but excused the Defendant’s actions as alcohol-induced behavior. The Defendant called the next morning and Mr. Harwood mentione d the inapprop riate behavior. The Defendant apologized. Mr. Harwood felt that the Defendant would be less welcome at his home and he did not suggest plans to see him again.
On cross-e xamina tion, Mr. Ha rwood te stified that the Defen dant ca me to his house on Saturday to show off the Defendant’s new truck. The Defendant had met Mrs. Harwo od one time and talked with h er on the teleph one. Mr. Harwood could not recall discussing sexual matters early during the visit on Saturday. They rented the movie on television sometime after 8:00 p.m., the childre n’s bedtime. At some point the men decided to get a second six-pack of beer after drinking the first one. They drank three more, for a total of nine beers between them. Mrs. Harwood took some sips of beer at some point in the evening. He could not rec all whethe r she also drank so me win e or liquor. In
explaining why he took the Defendant back to the bedroom to show him the sexual novelties, Mr. Harwoo d testified: “ I just go t a wild h air. I thou ght ab out it and I said, well, I’ll take him b ack th ere an d sho w him that an d ma ybe it will h elp him out.” He showed the Defendant a rubb er pen is nam ed “P inky” an d gave him the novelty men ’s und erwea r in the hope of improving his sex life. Mrs. Harwood was not in the bedroo m during this e xchange. A fter Mrs. Harwo od told Mr. Harwood what the Defendant did to h er, he c hose not to te lepho ne him immed iately. Mr. Harw ood sta ted that us ually the D efenda nt would c all their home and it would be unusual for his wife to call the Defendant. Mr. Harwood learned about the rape on Tuesday, March 28th after he called hom e from a trip to New Jers ey. On redirect exa mination, M r. Harw ood a dmitte d that h e wou ld request his wife to arrange social engagements over the telephone because he disliked talking on the phone.
Detective Ty Boomershine testified at trial that at approximately 7:30 p.m.
on March 28, 1995, the Sullivan County Sheriff’s Department responded to a report of rape called in by Lis a Har wood . He we nt to he r hom e, loca ted in a sm all trailer park in Kingsport. The detective noticed that both of the victim’s forearms were red and that one arm was beginning to bruise. He could not recall which arm was bruised. As part of the investigation, he returned to Mrs. Harwood ’s home on March 30 to discuss making a ta pe reco rding of a te lephon e call with the Defendant. Detective Boomershine indicated that he needed a tape such that the average person could understand the content of the conversation. With Mrs. Harw ood’s conse nt, she tap ed one call on Ma rch 30, 1995. Detective Boomershine reviewed the tape and asked Mrs. H arwell to ma ke a se cond call, which was recorded on April 4th. On one of the visits subsequent to March 28,
Mrs. Harwood pointed out the bruises on her right arm. On cross-examination, the detective noted that he arrived at the victim’s home on March 28 between 7:40 and 7:45 p.m . He observe d no signs of a struggle within the trailer. Detective Boomershine testified he requested the victim ta pe he r call and that he needed a secon d tape b ecaus e the victim referred to the rape as “it” on the first tape and that was too ambiguous. On cross-examination, the detective stated that he felt the case involve d one pers on’s word against another and that further proof in the form of the tape-recordings would be helpful. He made no suggestions regarding the content of the calls.
At the close of the State’s proof, the Defendant moved for a judgment of acquittal, which was denied.
The Defendant testified in his defense. He testified that he had known Mike Harwood since childhood and that Harwood got him a job at his place of emplo ymen t. The D efend ant m et the vic tim once whe n he was a teenager, and later once at the Harwood’s home. He stated he developed a social relation ship with the victim over the telephone and that they confided in each other and discussed sex. On Ma rch 25, 1 995, he stoppe d by the H arwood ’s to show them his truck. He and Mr. Harwood bought some beer and the Defendant heated a frozen dinner. The two men and Mrs. Harwood sat at the kitchen table and talked. Mrs. Ha rwood b egan m aking se xual innue ndoes towards the Defe ndant. Mrs. Harwood was urging her husband to go out by himself and get some other alcoh olic drinks because she did not like beer. The Defendant felt that she was trying to get rid of her husb and. Both m en went to ge t some m ore beer.
The Defen dant testified that the victim drank tw o beers and that they finished all the beer. The Defendant complained about his sex life and Mrs. Harwood said that wouldn’t happen if she were his wife. The Defendant testified that he weighs two hundred pounds and that he drank five beers that night and was feeling “tipsy.” He testified that Mrs. Harwood urged her husband to show the Defendant their sex toys. He saw a pink “dildo” that Mrs. Harwood referred to as “Pinky” and a few other items. They gave him the “W hopper” un derwear. The Defendant was joking about the rubber penis while Mrs. Harwood stood in the doorway to the bedroom. Mr. Harwood decided to order a movie and Mrs. Harwood helped make the call. The movie had women in lingerie and some nudity an d provoc ative dan cing.
W hile watching the movie and when Mr. Harwood was in the shower, Mrs.
Harwood said the movie was turning her on. She got up from a chair and the Defendant exposed himself and she made some comments to him. He encouraged her to touch him at which point Mr. Harwood said: “What’s going on in there?” After Mr. Harwood took a shower, both of the Harwoods indicated that the movie was turning them on and the Defendant told them to go into the bedroom. The Defendant continued to drink and watch the movie. He testified that the Harwoods returned to the kitchen and Mrs. Harw ood p erform ed fella tio on her husba nd. The D efendant did n ot have a clear vie w of the m, bu t knew it was happening because of their pos itions. Later they encouraged the Defendant to stay, but he refused because he did not feel drunk.
The Defendant testified that th e Harw oods c alled on S unday m orning to apologize to him. They invited the Defendant and his wife for dinner sometime.
Mrs. Harwood then called on Tuesday, the 28 th, whic h was unus ual. Sh e told him about a frozen dinner and the un derwe ar he le ft. He te stified th at she said her husband would not care if they got caught doing something sexual togethe r. After the Defendant arrived unannounced at the Harwo od’s trailer on Tue sday, Mrs. Harwood asked when her husband would be back from a trip. She closed the curtains and the blinds on the windows. Mrs. Harwood’s father came and picked up his granddaughter. The Defendant testified that Mrs. Harwood sat down in a chair and “was looking at me in such ways like c ome o ver here.” He stated that he went over to the chair and Mrs. Harwood took his penis in her hand then performed fellatio. At one point she hesitated and the Defendant placed her hand back on his penis. He testified that Mrs. Harwood never said “no” nor did she a sk him to leave. A car pulled up and Mrs. Harwood stopped, got up to see who was there, then the two went to the couch a nd continue d the oral sex. The Defendant testified that he ejaculated and afterwards, Mrs. Harwood stated “I’m going to want to do this more often.” They talked for a short while, then the Defen dant left.
Upon cross-examination, the Defendant admitted he was persistent about initiating a sexual encounter with the victim. He also admitted that, in a statement made to Det ective B oom ershin e, he d enied that an ything happened on the Saturday when Mr. Harwood was in the shower. The Defendant stated that on the tape-recorded telephone conversations, he denied forcing the victim. Howeve r, when Mrs. Harwood replied: “But you did,” the Defendant did not respond. He testified that when the victim said “no” she was still responding sexually a nd that he did not inte rpret that to mean “stop.” The defense rested.
The State recalled Mike Harwood in rebuttal. He testified that he and h is wife never engaged in sexual activity in the presence of the Defendant. He denied that he made any “wife swapping” suggestions.
The jury found th e Defe ndant g uilty of rape a nd set a fin e of $25 00. A sentencing hearing was held on May 10, 1996, and continued to June 28, 1996. The Defendant was sentenced to eight years and the $2500 fine was approved. The Defe ndan t subm itted a m otion fo r new tr ial, whic h was also considered on June 28th, and de nied. The D efendant as ked for probation, and the trial court sentenced him to one ye ar in Hay Ho use, a com munity corrections treatment program. The trial court set a review of the Defendant’s progress for August 30, 1996, at which time the trial judge approved the sentence set on June 28th.
The Defen dant no w appe als his con viction, raising numerous issues for review. The State has appealed the Defendant’s sentence, arguing that the trial court erred by sentencing the Defendant to community corrections.
I. Sufficiency of the Evidence
The Defe ndan t conte nds th at the e videnc e was insuffic ient to supp ort a verdict of guilt for rape. When an accused challenges the sufficiency of the convicting evidence, the standard is whether, after reviewing the evidence in the light most fav orable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virgin ia, 443 U .S. 307, 3 19 (197 9). Que stions co ncernin g the cre dibility of the witnesses, the weigh t and va lue to b e given the evid ence , as we ll as all factual
issues raised by the evide nce, are resolved by the trier of fa ct, not this co urt. State v. Pappas, 754 S .W .2d 62 0, 623 (Ten n. Crim . App. 1 987). N or ma y this court reweigh or reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (T enn. 19 78).
A jury verd ict app roved by the tr ial judge accredits the State’s witnesses and resolves all conflicts in fa vor of the S tate. State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). On appeal, the State is entitled to the strongest legitimate view of the evidence and all infere nces the refrom. Cabbage, 571 S.W.2d at 835. Because a verdict of guilt removes the presumption of innocence and replaces it with a pres umptio n of guilt, the accused has the burden in this court of illustrating why the evidence is insufficient to support the verdict returned by the trier of fact. State v. Tug gle, 639 S.W .2d 913 , 914 (T enn. 19 82); Grace, 493 S.W.2d at 476.
The victim testified that the Defe ndan t held her down on a chair and forced his penis into her mouth. She explained that he did not force her mouth open, but beca use s he wa s talking to him while he attempted to achieve penetration, he managed to force his penis into her mouth. In order to obtain a conviction for rape, the State was required to prove that the Defenda nt reck lessly, k nowin gly or intentio nally sexually penetrated the victim accompanied by force or coercion. Tenn. Code Ann. §§ 39 -13-5 03(a) ; 39-11 -301( c). Sex ual pe netratio n is “sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person's body or of any object into the genital or anal openings of the victim's, the defendant's, or any other person's body, but emiss ion of sem en is not re quired.” T enn. C ode An n. § 39-1 3-501(7 ).
The Defendant contends that the victim’s account of the rape defies the “physical facts rule,” and that her testimony should be disregarded and consequ ently, other witnesses’ corro borative testim ony alo ne ca nnot s uppo rt his conviction. See State v. Hornsby, 858 S.W.2d 892, 894 (T enn. 19 93); State v. Watkins, 754 S.W .2d 95, 99 (Tenn . Crim. A pp. 198 8). W e disagre e. The physical facts ru le is the princip le that te stimo ny that is entirely irrecon cilable with the physical evidence may be disreg arded. Hornsby, 858 S.W.2d at 894. T his includes “events that could not have occurred under the laws of nature,” ho wever, the facts used must be based on univers al physica l laws and not whe re its application turns up on calcu lations of u ncertain m atters. Id. at 894-9 5. In criminal cases, th e powe r to disregard testimony should be used sparingly and “[w]hen the testimony is capable of different interpretations, the matter should be left for the jury to decide as the sole arbiter of cred ibility.” Id. at 895. W e believe this is such a case.
The Defen dant arg ues tha t the acco unt of how the rape occurred was physic ally imp ossib le. He c onten ds tha t he co uld not have pinned the victim in a chair and pulled his sweatpants down with his thumbs as the victim testified. Furthermore, he claims that it was physically impossible for him to achieve penetration when the victim was thrashing her head about. However, penetration includes forcing a penis in to som eone’s mouth , however slight that penetration may be. The victim testified that the Defendant pinned her arms with his legs, pulled her hair and used his hand to force his penis in her mou th. She also testified that her mouth was open because she was speaking to the De fendan t. W e can only conclude tha t a rational juror could ha ve found that the Defendant was able to force his penis in the victim’s mouth at some point during the
struggle. This provides sufficient proof th at the D efend ant pe netrate d the vic tim and nothing indicates that the act was clearly physically impossible to achieve. This issu e is withou t merit.
II. Weight of the Evidence
Next, the Defendant contends that the trial court erre d by failing to grant his motio n for a ne w trial. He ar gues th at the we ight of the evidenc e is contrary to the verdict and th at the tria l judge shou ld have exercis ed his thirteenth juror power. The Defendant cites to numerous instances of inconsistent and contradictory testimony from the trial. He charges that the trial court was called upon to evaluate the credibility and weight of the testimony. He ar gues that this Court should be dubious of the conviction beyond a reasonable doubt and rema nd to th e trial co urt to en ter an o rder fo r a new trial.
The thirteen th juror r ule is ap plicab le to all criminal cases and is embodied in Rule 33(f) of the Tennessee Rules of Criminal Procedure. It states that “[t]he trial court may gra nt a new trial following a verdict of gu ilty if it disagrees w ith the jury about the weight of the evidence.” Tenn. R. Crim. P. 33(f). However, once the trial court approves the verdict as the thirteenth juror and imposes judgm ent, the review of the evidence on appeal is quite limited, requiring the accrediting of the testimony of the witnesses for the state and the resolution of evidentiary conflicts in favor of the state. State v. Moats, 906 S.W .2d 431, 435 (Tenn. 199 5); State v. Grace, 493 S.W .2d 474, 476 (Tenn. 197 3); State v. Burlison, 868 S.W.2d 713, 719 (Tenn. Crim. App. 1993 ). The tr ial cou rt need not m ake s tatem ents in the record of its ap prova l of the ve rdict, rath er, whe n it simply overrules a motion
for new trial without comment, this Court may presume that the trial court approved the verdict a s the thirtee nth juror. State v. Carter, 896 S.W.2d 119, 122 (Tenn. 1995). Only when the record contains statements indicating that the trial judge express ed dissa tisfaction or d isagree ment w ith the weight of the evidence or the jury’s verd ict, or the trial co urt abso lved itself of or m isconstrued its thirteenth juror function may this Court reverse the judgm ent and order a new trial. Moats , 906 S.W .2d at 435 ; Carter, 896 S.W .2d at 122 .
Here, the trial court ove rruled the Defen dant’s m otion for a n ew trial. The trial judge explicitly stated: “In my opinion the jury was justified in finding the Defendant guilty. I approve d the verd ict of the jury an d I decline d as a thirte enth juror to set aside the ver dict. I’m satisfie d with th e verd ict of the jury in this case.” Thus, our rev iew is limited to the sufficiency of the evidenc e, Moats , 906 S.W.2d at 435; Burlison, 868 S.W.2d at 719, which we have already determined suppo rts the verd ict in this case . This issu e is withou t merit.
III. Brady Violation
The Defe ndan t conte nds th at a ne w trial is required becau se the S tate failed to disclos e excu lpatory eviden ce in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Specifically, he points out that after the trial, he became aware that the victim had made allegations of rape against two men in 1982. T he cha rges we re dism issed afte r a prelimin ary hearin g. He contends that this is relevant impeachment evidence pursua nt to T enne ssee Rule of Evidence 608(b) that the victim had “cried wolf” in the past. The Defendant charges that the State shou ld have know n this information a nd should h ave
furnished it to him. However, the Defendant has presented n o proof to supp ort this allegation. Counsel stated at the hearing on the motion for new trial that the records had be en expu nged. In essen ce, the D efenda nt asserts that the S tate had a d uty to investig ate the victim .
First, the State cou nters that the Defendant has waived the issue because he has presented nothing other than the statements of counsel that the victim made a prior rape claim and that statements of counse l are not evidence. Second, the State argues that it had no knowledge of any prior claims by the victim. The State acknowledges a duty to search for information, but that no law requires them to ask the victim about prior claims. Finally, the State claims that such evidence would not be material to the case.
We agree that the allegations contained in pleadings and sta temen ts made by counsel during a hearing or a trial are not e vidence . The same is true with regard to the recitation of facts and argument contained in a brief submitted to this Court. State v. Dykes, 803 S.W .2d 250, 255 (Tenn. Crim . App. 1990 ); State v. Benne tt, 798 S.W.2d 783, 789 (Tenn. Crim. App. 1990). Because the Defendant has presented nothing but the transcript from the motion hearing that contains allegations made by counsel, this issue is waived.
Even if we were to consider this issue as limited to the facts outlined by counsel during the presentation of the motion, we would conclude that it has no merit. Brady requires the State to divulge exculpatory evidence, including that used to impea ch a witne ss. Foster v. S tate, 942 S.W.2d 548, 550 (Tenn. Crim. App. 1996). Yet, there is n o gene ral constitu tional right to discovery in a criminal
case, see We atherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 846, 51 L.Ed.2d 30 (1977), and the State is not obligated to make an investi gation, or to gather evidence, for the defe ndant. See State v. Reynolds, 671 S.W.2d 854, 856 (Tenn . Crim. A pp.198 4).
In Foster, the State had a tape recording in its possession which it failed to review to dete rmine wheth er it contained exculpatory material. This Court has held that Brady also re quires a duty to search possible sou rces of exculpa tory information, yet only for “‘non -trivial prospects’ of material exculpa tory informa tion.” Foster, 942 S.W .2d at 550 . In contrast, the State had no notice of prior claims by the victim and because the records had been expunged, no information was obtainable. Furthermore, we cannot conclude that the State had a duty to cast a dragnet investigation into the victim’s past conduct without being on some notice that “non-trivial” inform ation e xisted. T hus, w e cou ld only conclud e that this iss ue is witho ut merit.
IV. Hearsay Evidence
In his fourth issue, the D efendant arg ues that the trial court erred in admitting the testimony of Wanda Lucas, which violated the hearsay evidence rule. Over defense counsel’s objection, the trial court admitted Ms. Lucas’ testimony under th e excited u tterance exception to the hea rsay rule. T enn. R . Evid. 803(2). An excited utterance is “[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or co ndition.” Tenn. R . Evid. 803(2).
A jury-ou t hearin g was held in which Wanda Lucas testified that the victim telephoned because she needed to talk. Ms. Lucas estimated tha t the victim called sometim e after 2:30 p.m ., but before dark. Howeve r, she did not believe the victim called her as late as 6:00 p.m. Her best estimate of the time when the victim called wa s 3:00 or 3:30 p.m . She came over to see the victim, who was crying, had red eyes an d make up sme ared on he r face. The victim w as very shaky, upset an d confu sed. Ms. Lucas tried to calm her down. Ms. Lucas stated that the victim appeared disoriented and that she was more upset than she had ever seen her. U pon h earing this tes timon y, the tria l court ru led it ad miss ible as an excited utterance.
The test for determining that a statement qualifies as an excited utterance is sponta neity and logical relatio n to the ev ent. State v. S mith, 857 S.W .2d 1, 9 (Tenn. 1993). The declaration mus t arise w hile the perso n is “still laboring under the excitement and strain of the circumstances and at a time so near it as to preclude the idea of delibera tion and fabrication.” Id.; see State v. Kendricks, 891 S.W.2d 597, 604 (Tenn. 1994). Here, the victim reported the incident appro ximate ly three hours after it occurred. She appeared tearful and confused when she first saw Ms. Luc as. Ms. L ucas h elped h er calm down. N either her ability to calm down nor the fact that she did not report the incident for a few hours preclu des a finding that the victim was still suffering from the stress of excitement from the rape. See State v. Smith , 868 S.W.2d 561, 574 (Tenn. 1993); State v. Lavelle Winfrey, C.C.A. No. 02C01-9210-CC-00235, Tipton Coun ty (Tenn . Crim. A pp., Jacks on, Feb . 23, 1994 ), perm. to appeal denied (Tenn. 1994). In Winfrey, the victim reported an attempted rape two hours after it occurred and third-party testimony was admitted under the excited utterance
exception. Here, the victim reported the rape three hours later and appeared very upset and shaky. We cannot conclude that the trial cou rt erred in admitting the statements made by the victim to Wanda Lucas. This issu e is withou t merit.
V. Aud iotape T ranscrip ts
The Defendant next argues that the trial court erred in refusing to admit the transcripts of the two telephone calls of the victim talking with the Defendant. He asserts that the trial court’s failure to allow introduction of the transcripts violates due process becaus e the jury had to rely on “ra mbling and red undan t” conversations that they heard one time.
Tape recordings and compared transcripts are admissible and may be presented into evidence by any witness who monitored the conversations if he or she was in a position to identify the dec larant with c ertainty. State v. Jones, 598 S.W .2d 209 , 223 (Te nn. 1980), overruled on other grounds by State v. Shropsh ire, 874 S.W.2d 634, 638 (Tenn. Crim. App. 1993). The trial judge must control the mode and manner of the introduction of evidence to the jury, and has wide latitude and discretion in determining the nature of the evidence to be considered. State v. Elrod, 721 S.W.2d 820, 823 (Tenn. Crim. App. 1986). W e may not disturb the rulings of the trial judge absent an abu se of disc retion. Id. W e find no abuse of discretion in this case. The tape-recorded conversations were clearly admissible because they were authenticated by Mrs. Harwood, who was presen t and pa rticipated in their creation. However, defense counsel attempted to authenticate the transcripts of the calls through D etective Boomershine. Proper authentication of transcripts requires that they be
compared to the tapes and evaluated for their ac curacy. See State v. Cameron, 909 S.W.2d 836, 850 (Tenn. Crim. App. 1995 ); State v. S mith, 656 S.W.2d 882, 888 (Ten n. Crim. App . 1983).
In the case at bar, the trial judge examined the detective regarding the accuracy of the transcripts. Detective Boomershine stated that he or someone at the sheriff’s department reviewed the transcripts for their accuracy. The detective testified that they were accurate “to my know ledge ” but did not cle arly state that he carefully reviewe d the tapes for ac curacy. Apparently, the trial judge was not satisfied that the transcripts were p roper ly authe nticate d and thus, d id not allow their su bmiss ion to the ju ry. We canno t conclude that the trial judge abuse d his discr etion. Th is issue is w ithout me rit.
VI. Motion to Suppress the Tapes
The Defenda nt claims that the trial cou rt erred by failing to grant his motion to suppress the tape-recorded telephone calls between the victim and the Defendant. He argues that the victim acted as an agent of the State and engaged in overreaching police conduct violative of due process and the Fourth and Sixth Amendments to the United States Constitution. We disagree and conclud e that this iss ue is witho ut merit.
The United States Constitution provides no protection for those who volunta rily offer information to a confidant. The Supreme Court has found no violations under the Fourth, Fifth or Sixth Am endm ents. See Clariday v . State,
552 S.W.2d 759, 768 (Tenn. Crim. App. 1976) (citing Hoffa v. United States, 385 U.S. 29 3, 87 S.C t. 408, 17 L .Ed.2d 3 74 (196 6)).
If the law gives no protection to the wrongdoer whose trusted accomplice is or becomes a police agen t, neithe r shou ld it prote ct him when that same agent has recorded or transmitted the conversations which a re later offere d in eviden ce to pro ve the Sta te's case .
Clariday, 552 S.W.2d at 768 (quoting United S tates v. W hite, 401 U.S. 745, 752, 91 S.Ct. 1122, 1126, 28 L.Ed.2d 453 (1971) (plurality opinion)). Nor do the circumstances in this case, although deceptive, rise to the level of implicating notions of fair play as protected by the Fo urteenth Ame ndme nt. See State v. Branam, 855 S.W.2d 563, 568-69 (Tenn. 1993). In fact, the surreptitious recording of conve rsations h as bee n sanc tioned by statute. Tenn. Code Ann. § 39-13-601 (b)(4). “It is lawful . . . for a pe rson ac ting unde r the color o f law to intercept a wire, oral or electronic comm unication , where th e perso n is a party to the comm unication . . . . Tenn. C ode Ann . § 39-13-601(b)(4). The Defendant misplaced his trust in the victim and volunteered incriminating statements. The trial court did not err in denying the Defendant’s motion to suppress the telephone conversations.
VII. Defective Indictment
The Defendant argues that the indictm ent wa s fatally defective because it failed to allege the requisite mens rea. The indictment contains the following language:
The Grand Jurors for Sullivan County, Tennessee, duly empaneled and sworn, upon their oath present that ROBERT BACO N on or about March 28, 1995 in the State and County aforesaid and before the
finding of this In dictm ent did unlaw fully and forcibly s exually penetrate, by inserting his penis into her mouth, Lisa Harwood, in violation of T.C.A. §39-13-503, and Against the peace and dignity of the State of Tennessee.
An indictment or presentment must provide notice of the offense charged, an adequ ate bas is for the en try of a proper judgment, and suitable protection against double jeopardy. State v. T rusty, 919 S.W .2d 305, 310 (Tenn. 199 6); State v. Byrd, 820 S.W .2d 739 , 741 (T enn. 19 91); State v. Lindsay, 637 S.W.2d 886, 890 (T enn. C rim. A pp. 19 82). T he ind ictme nt “mu st state the fac ts in ordin ary and concise language in a manner that would enable a person of common unde rstand ing to k now w hat is intended, and with a deg ree of ce rtainty which would enable the court upon conviction, to pronounce the proper judgm ent.” Tenn. Code Ann. § 40-13-202; Wa rden v. Sta te, 214 Tenn. 391, 381 S.W .2d 244, 245 (1964).
A lawful accusation is an essential jurisdictional elemen t, thus, a prosecution canno t procee d withou t an indictm ent that su fficiently informs the accused of the essential eleme nts of the o ffense. State v. Perkinson, 867 S.W.2d 1, 5 (Ten n. Crim. A pp. 199 2); State v.Morgan, 598 S.W.2d 796, 797 Tenn. Crim. App. 1979). A judgment based on an indictment that does not allege all the essential elements of the offense is a nulli ty. Wa rden v. Sta te, 381 S.W.2d at 245; McCra cken v. S tate, 489 S.W.2d 48, 53 (Tenn. Crim. App . 1972). Furthermore, the Tennessee Code provides that "[i]f the definition of an offense within this title does not plainly dispense with a m ental elem ent, intent, knowledge, or reckles sness s uffices to e stablish th e culpable m ental state ." Tenn . Code Ann. § 3 9-11-30 1(c).
Our su preme court ha s recen tly held that :
for offenses which neither ex pressly re quire no r plainly dispe nse with the requirement for a culpable mental state, an indictment which fails to allege such me ntal state will be sufficient to supp ort prosecution and conviction for that offense so long as
(1) the language of the indictment is sufficient to meet the constitutional requirements of notice to the accused of the charge against which the accused mus t defen d, ade quate basis for entry of a proper judg ment, and protection from d ouble jeopa rdy;
(2) the form of the indictment meets the requirements of Tenn. Code Ann. § 40-13-202; and (3) the me ntal state can be logically inferred from the conduct alleged.
State v. Rog er Da le Hill, Sr., No. 01S 01-970 1-CC -00005 , Wa yne Co unty (Tenn ., Jackson, N ovembe r 3, 1997).
Here, the indictment clearly satisfies the constitutional notice requirem ents.
There was adequate notice that the Defendant was charged with the statu tory offense of rape as codified in Tennessee Code Annotated section 39-13-503 which contains the essential elements of the offense. Here too, is sufficient information by which the trial judge could pronounce judgment for the offense of rape. Finally, the D efenda nt is adeq uately pro tected ag ainst a second prosecution for an offense of rape of the victim occurring on March 28, 1995.
Regarding the second requirement, it is also apparent that the indictment was drafted su ch that a p erson o f ordinary inte lligence could un derstan d with what offense he was charged. The indictment also sufficiently stated the factual circumstances by alleging that the Defendant “did un lawfully a nd forc ibly sexu ally penetrate, by inserting his penis into her mouth, Lisa Harwo od.” It is clear who the victim was and what specific act of forcible sexual penetration the Defendant
was called to defend against. Likewise, the third requirement of the test, that the mental state be logically inferred from the indictment, has been met. The allegation of “force” contemplates a mental state. As defined in the Code, “‘[f]orce’ means compulsion by the use of physical power or violence and shall be broadly c onstrue d to acco mplish th e purpo ses of this title.” T enn. C ode An n. § 39-11-106 (a)(12). Force implies that the power is directed toward an end and without the cons ent of the victim. Lundy v. S tate, 521 S.W.2d 591, 594 (Tenn. Crim. App. 19 74). Th us, the ele ments of the charged offense imply that the Defendant possessed some level of awareness of his actions that would sa tisfy proof of a culpable mental state under section 39-11-301(c). Therefore, we conclude that the indictment in this case adeq uately informed the Defendant of the cha rges ag ainst him and tha t this issue is w ithout me rit.
VIII. Trial Court’s Failure to Rule on Motions
The Defe ndan t alleges that the trial judge never ruled on two issues and that, as a result, he was prejudiced because he was prevented from developing a record for app eal. He first con tends that the trial cou rt failed to rule on his motion to suppress the telephone conversations. The trial court considered the Defe ndan t’s motion to suppress prior to trial and, as the Defendant suggests, the trial court did reserve judgment. At the hearing on January 5, 1995, the trial judge stated: “I’m no t going to sup press anythin g toda y. I’ll rule on it at the trial.” On the 16th of April, before trial, the D efenda nt again ra ised the m otion. In reference to the State’s admitting the tapes, the trial court ruled that “[t]hey (the tapes) w ould be admis sible.”
Rule 12(e) of the Tennessee Rules of Criminal Procedure provides that “[a]
motion made before trial shall be determined before trial unless the court, for good cause, orders that it be deferred for determination at the trial of the general issue or until after verdict, but no such determ ination sh all be defe rred if a party’s right to appeal is adve rsely affected.” See State v. Auco in, 756 S.W.2d 705, 709 (Tenn. Crim. A pp. 198 8); Bolton v. S tate, 591 S.W.2d 446, 449 (Tenn. Crim. App. 1979); Feagin s v. State, 596 S.W.2d 108, 109-10 (Tenn . Crim. A pp. 197 9). “Before trial” mea ns before the da y the tria l is sched uled to be gin. Auco in, 756 S.W .2d at 709 .
Here, the trial court heard arguments on the motion to suppress on January 5, 1995, and made no specific ruling. Defense counsel raised the motion again on the day of trial prior to the jury being empaneled. The trial court ruled at that time that the tapes were admissible. We agree that the trial court should have ruled on the Defendant’s motion prior to the day of trial. However, we see no evidence that the Defendant was prejudiced by the delay. He has preserved the issue for appe al, and we ha ve conside red the m erits of his cla im and co nclude d that the ta pes we re prope rly admitted .
The Defe ndan t also co ntend s that th e trial co urt failed to rule on the admis sibility of the transcripts of the tap e-recorded tele phone calls. Defense counsel reques ted that the y be adm itted. The trial judge exa mined D etective Boomershine and de termine d that they were no t properly a uthentica ted. Although the trial ju dge d id not s tate exp licitly on the record, it is apparent that he did not consider them admissible. Furthermore, the Defendant has not
demonstrated that the trial cour t’s failure to ad mit the tran scripts has prejudiced him. Th is issue is w ithout me rit.
IX. Failure to Grant a Mistrial
The Defendan t first argues that the S tate requ ested a n interlocu tory appeal in the pres ence o f the jury. He claims th at this was prejudicia l to him an d that a mistrial shou ld have been granted. Th e State asse rts that the record reflects that the request w as mad e outside the p resence o f the jury.
The request for appeal arose after the trial judge asked if any member of the jury had a que stion to subm it to Mrs . Harw ood, th e victim , while s he wa s still on the stand testifying. The State requested a jury-out hearing and argued against the trial cour t’s actions. T he State asked for an interlocutory appeal. The jury returned to open court, at which time the trial judge asked if anyone had a question. At that po int, the State again requested an interlocutory appeal, which was overruled. After two other witnesses testified, the State renewed its request for an interlocutory appeal, which was denied. The State then asked for a mistria l, which was denied, and the Defendant asked for a mistrial, which was denied. Becau se the D efenda nt has faile d to cite autho rity to sup port his argum ent, this issue is waived. T enn. C t. Crim. A pp. R. 10 (b); State v. Killebrew, 760 S.W .2d 228 , 231 (T enn. C rim. App . 1988).
Even if we consider the issue on its merits, we cannot conclude that the State enga ged in such conduct that the Defendant was prejudiced. Our review of prosecutoria l misconduct consists of considering five factors to determine
whether the prosecutor’s statem ents affec ted the ve rdict. Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976); State v. Davis , 872 S.W.2d 950, 953- 54 (Tenn . Crim. A pp. 199 3). These are (1) the cond uct co mpla ined o f viewed in the context and in light of the facts and circumstances of the case; (2) any curative measures undertaken by the court and the prosecution; (3) the intent of the prosecutor in making the improper statement; (4) the cumulative effect of the improper conduct and any other errors in the record; and (5) the relative s trength and weakn ess of the case. Judge, 539 S.W.2d at 344. The assistant district attorney had aske d for an interlocutory a ppea l in a jury-out hearing, then interjected the request again in fro nt of the jury. After two witnesses testified, the Defendant asked for a mistrial, which was denied. The trial court issued no curative instructions. The Defendant cites no additional instances of misconduct by the State . There fore, in the c ontext of the entire case, we cannot conclude that the D efenda nt was d enied a fair trial.
The Defendant also charges that a mistrial should have been granted because an agent of the State had contact with the victim before she testified. At the co mm ence men t of the tria l, the rule on sequestration of witnesses was invoked. The victim, Mrs. Harwood, was waiting in the witness’ waiting area for her turn to testify. W hen it w as ap paren t that the victim would b e called n ext to testify, Anna Sue Lavin, a victim advocate employed by the State, had contact with her. A jury-o ut hearin g was h eld. Ms. La vin testified tha t she told th e witness she was next so she could use the restroo m. The victim asked for some tissues, which Ms. Lavin provided. Ms. Lavin told the witness not to be nervous. There was no discuss ion rega rding the testimon y in the cas e. The tr ial court denie d the D efend ant’s m otion fo r a mis trial.
The rule on sequestration of witnesses “is designed to detect falsehood as well as to prevent any witness from coloring his, or her, testimony either purpose ly or through influence by talking to other witnesses and hearing them talk.” Nanc e v. State, 210 Tenn. 328, 333, 358 S.W.2d 327, 329 (1962). If a witness violates the rule and h is or her testimony is material, permitting that witness to testify is not error unless the wronged party can show prejudice . State v. Wicks, 729 S.W.2d 283, 285 (Tenn. Crim. App. 1987). The Defendant has demonstrated no prejudice he has suffered from allow ing the victim to testify after contac t with Ms. La vin, therefor e, this issue is without m erit.
X. The Jury’s Submission of Questions to a Witness
Finally, the Defendant argues that the trial court erred by allowing the jury to submit questions to the victim at the conclusion of her testimony. At the conclusion of questions submitted by counsel, the trial judge examined the victim. After he asked several questions, he recessed the jury to submit any questions they had for the witness. After the jury returned to the courtroom, the trial judge asked the witness two questions: one regarded how long the victim and th e Defendant knew each other, the other clarified whether the Defendant ejaculated in the victim’s mou th. The State re quested an interlocutory appe al, and both the State and the De fendant requ ested a m istrial on this issue, all of which we re denied .
Although we find the trial court’s action s high ly irregu lar, we d o not fin d it to be reversible error in the case sub judice. A trial court judge should exercise his right to call and exam ine a witness w ith great care, and should do so only
when it may be necessary to avoid a miscarriage of justice. Ten n. R. Evid. 614(a); Coffee v. State, 188 Tenn. 1, 216 S.W.2 d 702 (1 948); State v. Brock, 940 S.W .2d 577 , 581 (T enn. C rim. App. 19 96). However, the trial court has discretion to interroga te witness es. Ten n. R. Evid . 614(b). "T he court, must, however, be scrupulously careful not to indicate to the jury its opinion as to the guilt or innocence of the accused, especially in examining the accuse d hims elf, which would be no t only improper, but prejud icial error." Brock, 940 S.W.2d at 581(citation omitted) ; see Tenn. Const. art. VI, §. 9 "[The] trial judge shou ld examine witnesses only in rare instances and then only by a few questions necessa ry to clear up the situation, it being better to suggest to counsel the additiona l informatio n desired , and let him ask the q uestions ." Id.
Here, after the State and defense counsel questioned the witness, the trial judge interrogated the victim on se veral p oints. H e ma de no spec ific comm ents regarding the evid ence , but po intedly question ed the w itness. Wh ile the vic tim was still on the stand, the trial court rece ssed the jury for any individu al jurors to com pile questions for the witness. He instructed the jury not to discuss the case in any way. He stated that any juror who had a question could raise his or her hand and h e wou ld subm it a written question. Two questions were asked. The trial court’s action s were clearly u nusu al, however, we cannot conclude that the trial judge commented on the evidence such tha t it violated the De fenda nt’s rights. In fact, he remarked that “[t]his is a search for the truth.” In Brock, the answers to the trial court’s exa mination of the defe ndant e stablishe d elem ents necessa ry to prove th e State’s case. Brock, 940 S.W.2d 581. Here, ho wever, the jury’s questions only clarified some details about the incident. After
considering the entire record in the case sub judice, we are satisfied that this was harmless error. T.R.A.P. 3 6(b); Tenn. R . Crim. P. 52(a).
W e do recognize that this practice on the part of trial judges should be discouraged. It is apparent that such practices place trial judges at a greater risk of appearing biased and potentially placing the jury in a position to beg in deliberations ab out the case p rematurely.
XI. Sentencing
The State has also appealed regarding the Defendant’s sentence. The State argues that the trial court erred by sentencing the Defen dant to co mm unity corrections when he was statutorily ineligible for such a sentencing alternative. The Defendant counters that, although the trial court’s intentions were u nclear, it appears that the trial judge was attempting to sentence him to probation.
The Defendant was convicted of rape, which is a Class B felony. Tenn.
Code Ann. § 3 9-13-50 3(b). Th e range of punish ment fo r a Range I, standard offender is eight (8) to twelve (12) years for the offense. Tenn. Code Ann. § 40- 35-101. A sentencing hearing was held on May 10, 1996. The Defendant submitted mitigating factors which are not reflected in the record, but of which one appea rs to be tha t the Defendant had no prior criminal record. The Defendant argued that the minimum sentence in the ran ge of eight (8) years would be appropriate. The State submitted no enhancement factors, but argued that the facts and circumstances of the crime should support the imposition of a
ten-year (10) sentence. The Defendant also submitted a request for probation.
The Defe ndan t offered witnes ses o n his b ehalf. His wife, Amy Bacon, testified. The trial court took notice that there were a number of other witnesses, but rather than taking more testimony as the Defendant requested, he ordered defense counsel to gather letters from these persons to supplement the presentence report beca use it w as ina dequ ate. T he he aring w as co ntinue d until June 28, 199 6. W ithout refere nce to the senten cing princ iples, the trial judge sentenced the Defen dant to eig ht (8) years as a Ra nge I offen der. Th e State filed an app eal rega rding the senten cing issu e. See State v. Hayes, 894 S.W.2d 298, 30 0 (Ten n. Crim. A pp. 199 4).
When the State challenges the length, range, or the manner of service of a sentence, this co urt has a duty to conduct a de novo review of the sentence with a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-402(d). This presumption is "conditioned upon the affirmative showing in the record that the trial court considered the sentencing principles and all relevant facts and circums tances ." State v. Ashby, 823 S.W.2d 166, 16 9 (Ten n. 1991 ).
In conducting a de novo review of a sentence, this court must consider: (a)
the evidence, if any, received at the trial and the sentencing hearing; (b) the presentence report; (c) the principles o f sentenc ing and argum ents as to sentencing alternatives; (d) the nature and characteristics of the criminal conduct involved; (e) any statutory mitigating or enhancement factors; (f) any statement that the defendant made on his own behalf; and (g) the potential or lack of
potential for rehab ilitation or treatm ent. Ten n. Cod e Ann. §§ 40-35-102, -103, and -21 0; see State v. S mith, 735 S.W .2d 859, 863 (Tenn. Crim . App. 1987 ).
If our review reflects that the trial court followed the statutory sentencing procedure, imposed a lawful sentence after having given due consideration and proper weight to the factors and principals set out under the sentencing law, and that the trial court's findings of fact are adequately supported by the record, then we may not modify the sentence even if we would have preferred a different result. State v. Fletcher, 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).
The record is clear that the trial court failed to apply the sentencing principles and state them on the record, so we must we conduct a de novo review of the Defendant’s sentence. The State challenges only the manner of service of the sentence, therefore, we are satisfied after reviewing the record that the eight-yea r senten ce is app ropriate in th ese circu mstan ces.
Howeve r, the trial court’s treatment of the probation reque st is problematic.
At the June 28 hearing, the trial court considered the presentence report. He also determined that the Defendant’s lack of a prior record could be considered in mitigation and applied two sentence enhancement factors as possible bases to deny probation. These were that the offense was committed to gratify the defen dant’s desire for pleasure or excitement and that he abused a position of private trust. The trial judge ordered the Defendant to spend one (1) year in Hay House, which this Court believes to be a community corrections program . See State v. Boston, 938 S.W .2d 435 , 437 (T enn. C rim. App. 1996 ). He rese t a hearing for August 30, 1996, to review the Defendant’s progress.
At the August 30 hearing, the trial court reviewed a scant, two-paragraph report from N ancy La nthorn, P h.D., which stated basica lly that the Defendant had a better understanding of his circumstances and that his prognosis was good. There were do cume nts reflecting the coun seling ho urs he u nderwe nt. The State offered no evidence or argument. The trial judge then ordered: “This sentence will stay as it wa s.” What the sentence “was” remains a mystery. The judgment form reflects that the Defendant was sentenced to eight years in comm unity corrections and sp ecifies an evaluation in Hay H ouse. There is no referenc e to probatio n in the jud gmen t.
A defe ndan t is eligible for prob ation if th e sen tence impo sed u pon h im or her is eight (8) years or less. Even though probation must be considere d, a defendant is not au toma tically entitled to probation as a matter of law. Fletcher, 805 S.W.2d at 787. Factors such as the defendant's potential for rehabilitation, the nature and seriousness of the offense, and deterrence of others in committing the crime, and whether the record reflects multiple or recent unsuccessful sentencing measures other than confinement, can be used to rebut the presumption that alternative s entenc ing is app ropriate. Id. at 788-89 . Eligibility for sentencing under the Community Corrections Act is set out in Tennessee Code Annotated section 40-36-106(a) and (c), as follows:
(a) An offend er who mee ts all of th e follow ing m inimu m crite ria sha ll be considered eligible for punishment in the community under the provisions of this cha pter:
(1) Person s who, without this option, would be incarcerated in a correctional institution;
(2) Persons who are con victed of pro perty-relate d, or drug/alcohol-related felony offenses or other felony offenses not
involving crimes against the person as provided in title 39, chapter 2, parts 1, 2, 3, 5, 6, and 7;
(3) Persons who are convicted of nonviolent felony offenses;
(4) Persons who are convicted of felony offenses in which the use or possession of a weapon was not involved;
(5) Persons who do not demonstrate a present or past pattern of behavior indicating violence;
(6) Persons who do not demonstrate a pattern of committing violent offenses; and
(7) Persons who are sentenced to incarceration or on escape at the time of consideration will not be eligible.
(c) Felony offenders not otherwise eligible under subsection (a), and who would be usually considered unfit for probation due to histories of chron ic alcohol, drug abuse, or mental health problems, but whose special needs are treatable and could be served best in the com munity rather than in a correctional institution, may be considered eligible for punishm ent in the com munity und er the provisions o f this chapter.
The Defendant is not eligible under subsection (a) because he cannot meet the requirements of subsection (a)(2) of the minimum criteria. As to subsection (a)(2), rape is clearly a felony offense involving a "crime against the person" and is proscribed in title 39, chapter 2, part 5. Furthermore, there is nothing in the record that reflects that the De fendant had a “special need ” under subs ection (c). See Boston, 938 S.W.2d at 439. We do note that subsection (f) provides that a defendant may be sentenced to community corrections as a condition of probation. Tenn. Code Ann. § 40-3 6-106 (f). How ever, w e do n ot belie ve that th is provision waives th e require ments for eligibility for community corrections. Such a practice would undermine the goals of the community corrections programs.
The Defendant concedes that he is no t eligible for community corrections, but claims that the trial court intended to place him on probation. Wh ile there are
indications in the record that the trial judge was considering probation, the judgment reflects a se ntence in comm unity correction s. Because of the apparent contradictions in the record, combined with the Defendant’s ineligibility for comm unity corrections, we are unable to adequately review the manner of service of the sentence. Therefore, we believe that the best course is to remand this case to the trial court for the purpose of properly determining the manner of service o f the sente nce.
The Defendant’s conviction for rape is affirmed. This case is rema nded to the trial court to determine the manner of service of the eight-year sentence.
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DAVID H. WELLES, JUDGE
CONCUR:
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THOMAS T. WOODALL, JUDGE
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JOHN K. BYERS, SENIOR JUDGE
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