State v. Frank Kenneth Talley

• Court: Court of Criminal Appeals of Tennessee
• Decided: September 17, 1999
• Docket: 01C01-9612-CC-00524
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED MAY SESSION, 1998 September 17, 1999

Cecil Crowson, Jr. STATE OF TENNESSEE, ) Appellate Court Clerk C.C.A. NO. 01C01-9612-CC-00524 ) Appellee/Cross-Appellant, ) ) ) RUTHERFORD COU NTY VS. ) ) HON. J.S. DANIEL FRANK KENNETH TALLEY, ) JUDGE ) Appellant/Cross-Appellee ) (Direct Appeal - Rape)

FOR THE APPELLANT: FOR THE APPELLEE:

SCOTT DANIEL JOHN KNOX WALKUP 401 W . Main St. Attorney General and Reporter Murfreesboro, TN 37133-0960 KAREN M. YACUZZO Assistant Attorney General 425 Fifth Avenu e North Nashville, TN 37243-0493

BILL WHITESELL District Attorney General

PAU L A. HO LCO MBE , III Assistant District Attorney Rutherford County Judicial Bldg. Murfreesboro, TN 37130

OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE OPINION

The appellant, Frank Kenneth T alley, Jr., was convicted b y a Rutherford

Coun ty jury of three (3) counts of rape, a Class B felony. Th e trial court

sentenced Appella nt as a R ange II Multiple Offender to concurrent sentences of

thirteen (13) years for each offense. On appeal, Appellant raises several issues

for our review:

(1) whether the indictme nt failed to se t forth the es sential elem ents of the crime because it does not aver a culpable mental state;

(2) whether the eviden ce wa s sufficie nt to es tablish Appe llant’s guilt beyond a reaso nable d oubt;

(3) wheth er the tr ial cou rt prop erly denied the admission of evidence regardin g the victim ’s psycho logical trea tment;

(4) whether the trial court erred in allowing the prosecution to ask leadin g que stions and th ereby denie d App ellant a fair trial;

(5) whether the court erred in allowing the state to introduce the medical report of the victim’s emergency room visit and allowing such repo rt to be passed to the jury;

(6) wheth er the tr ial cou rt erred in admitting a photographic line-up;

(7) whether the trial court erred in ruling that the prose cution could cross-examine Appellant as to his prior conviction for the offense of assault with intent to rob , if Appellant chose to testify;

(8) whether the court erred in allowing the state to inform the jury that Appellant had provided a list of alibi witnesses;

(9) whether the court erred in overruling defense counsel’s objection and allow ing the pro secuto r to state to the jury th at wha t the victim told another person was hearsay; and

(10) whether the trial court denied Appellant a fair trial b y allege dly biased rulings during closing argument which unfairly favored the prosecution.

-2- The state also appeals, claiming that the trial cour t erred in se ntencing Appella nt.

After a thorough review of the record before this Court, we affirm the judgment

of the trial cou rt.

FACTS

On April 23, 19 95, D.M.’s 1 car broke down in the parking lot of Kroger

grocery store in Murfre esbo ro. A m an, late r identified as the appellan t,

approached D.M. and offered his assistance. After examining the vehicle,

Appellant told D.M. that he needed to take a friend ho me, bu t would re turn with

tools to fix the c ar.

W h ile Appellant was gone, another man, Jerry Goodrich, stopped and

offered his assistanc e with th e ma lfunctio ning ve hicle. A ppella nt even tually

returned, and he an d Good rich were able to re pair D.M.’s car. Appellant offered

to follow D.M. halfway home in case her vehicle stopped again. Instead,

Appe llant followed D.M. all of th e way to h er apartm ent.

W hen they arrived at D.M.’s home, Appellant asked if he could use her

restroom. D.M. agreed. Upon entering the apartm ent, D.M . offered A ppellant a

beer in gratitude for his assistance in repairing her car. He took the beer, sipped

it and went to the restroom. Appellant then walked into the kitchen, where D.M.

was putting away groceries, and grabbed her around her neck from behind. As

he dragged her into the bedroom, the victim asked what he was doing. Appellant

replied, “[i]f you just be quiet and don’t fight me, I won’t hurt you.” Appellant took

D.M. into the bedroom, put her on the bed, and wrapped the covers around her

head. The victim begged Appellant to stop and, although she did not see

Appellant with a weapon, believed that App ellant mig ht “blow [he r] brains ou t.”

1 It is the policy of this Court not to reveal the names of victims of sex crimes.

-3- Appellant again sta ted that he would n ot hurt her if she did not fight him. The

victim begged Appellant to rem ove the covers from h er hea d, and he eve ntually

comp lied.

Appellant pulled off D.M.’s clothing and, over a period las ting ap proxim ately

forty-five (45) min utes, pen etrated her vaginally, forced her to perform oral sex

on him, and the n performe d oral sex on he r. Howeve r, Appella nt did not e jaculate

as a result of these acts. Appellant then apolo gized for his behavior and left the

victim’s home. Before he drove away, however, D.M. observed and wrote down

the licens e plate nu mber fro m the ve hicle App ellant was driving.

Subseq uently, D.M. called her son, Joshua, and informed him about the

incident. Joshua called the law enforcement authorities, and when the police

arrived at the victim’s home, she gave them a description of Appellant as well as

his license plate number. The victim was then taken to the emergency room.2

The police ran a check on the license plate number provided by D.M., and

the vehicle was registe red to L izzie McGowen, the aunt of Appellant’s wife. The

officers went to Appellant’s home and confronted him with the charges against

him. Appellant’s wife told the officers, “[Appellant] couldn ’t have done it. He was

with me all day.” App ellant also d enied the allegation s mad e by the victim .

The next morning, the victim identified Appellant from a photographic line-

up. Appellant wa s arrested an d gave a statement to police officers wherein he

admitted assisting D.M. with her car the previous day, but denied following her

to her ho me.

Authorities later recovered Appellant’s fingerprints from a beer bottle found

in the victim ’s hom e.

2 No semen or other physical evidence was found as a result of the victim’s physical examination at the hospital. However, the nurse who exam ined the victim observed red m arks on the victim’s forearm s and left low er leg.

-4- Appe llant’s wife, Belinda Talley, testified for the defense a t trial. She

stated that Ap pellan t had b een in her presence the entire day, with the exception

of appro ximate ly forty-five (45) m inutes to an h our wh en Ap pellan t left his fa mily

to pick up food. T he defense also presente d the testimon y of other family

members, who testified as to Appellant’s whereabouts during the day of April 23.

Appe llant did not tes tify at trial.

At the conclusion of the proof, the jury conv icted Appellant of three (3)

counts of rape. The trial court sentence d App ellant as a Ran ge II m ultiple

offender to concurrent terms of thirteen (13) years for each offense. From his

convictions and sentences, the Appellant and the State of Ten ness ee brin g this

appe al.

SUFFICIENCY OF THE INDICTMENT

Appellant argues that his convictions are void because the indictment did

not allege a culpable mental state. He claims that the indictment failed to set

forth the esse ntial elements of the offense; as a result, the trial court was

deprived of jurisdiction, and his convictions for rape are void ab initio .

The indictme nt alleged that “on the 23rd da y of April, 1995, . . . Frank

Kenn eth Talley, Jr., us ing force o r coercion to acco mplis h this act, did unlaw fully

sexua lly penetrate . . . [D.M.], in violation of T.C.A. 39-13-503. . .” The language

in the indictment is similar to that in the case of State v. Hill, 954 S.W.2d 725

(Tenn. 1997). In Hill, the Supreme Court was faced with an identical issue and

held that:

for offenses which neither expressly require nor plainly dispense with the requirement for a culpable mental state, an indictment

-5- which fails to allege such m ental state will be sufficient to sup port prosecution and conviction for that offense so long as

(1) the language of the indictment is sufficient to meet the constitutional requirem ents of notice to the accused of the charge against which the ac cuse d mu st defe nd, ad equa te bas is 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 m ental s tate ca n be lo gically inferred from the conduct alleged.

Id. at 726-727.

Under Tenn . Code Ann. § 3 9-13-50 3, the culpable mental state for the

offense of rape is neither sp ecifically stated nor plainly dispensed with. Thus,

proof of “intent,” “knowledge” or “recklessness” will suffice to establish the

culpable m ental state. Ten n. Code A nn. § 39-11-3 01(c).

The indictment in this case provides adequate notice of the charged

offenses as well as a bas is for entry of a proper judgment and protection against

doub le jeopardy. Furthermore, the indictm ent com plies with requirements stated

in Ten n. Co de An n. § 40 -13-2 02. Mo reove r, the m ental s tate ca n be lo gically

inferred from the conduct alleged. “Obviously, the act for which the defen dant is

indicted, ‘unlawfully se xual pen etrat[ing]’ a p erson . . . is committable only if the

principal actor’s mens rea is intentional, knowing , or reckless.” State v. Hill, 954

S.W.2d at 729.

The indictment in the present case clearly meets the requirements set out

in Hill and is, the refore, valid. T his issue is without m erit.

SUFFICIENCY OF THE EVIDENCE

-6- In his next issue, Appellant contends that the evidence is insufficient to

support the jury’s finding of guilt on three (3) counts of rape. Specifically, he

asserts that the victim’s testimony is incredible, and there is little evidence to

corrobo rate her testimony. Furthermore, he claims that the state failed to present

sufficient evidence of force or coercion.

A.

When an appellant challenges the sufficiency of the evidence, this Co urt

is obliged to review th at challen ge acc ording to certain we ll-settled princ iples. A

verdict of guilty by the jury, approved by the trial judge, accredits the testimony

of the State’s witnesses and re solves all conf licts in the testim ony in favor of the

State. State v. Cazes, 875 S.W.2d 253, 259 (Ten n. 1994). Although an accused

is originally cloaked with a presumption of innoc ence , a jury ve rdict rem oves th is

presumption and replaces it with one of guilt. State v. Tug gle, 639 S.W.2d 913,

914 (Tenn. 198 2). Hence, on appeal, the burden of proof rests with Appellant to

demo nstrate the insufficienc y of the con victing evide nce. Id.

On appeal, the state is entitled to the strongest legitimate view of the

evidence as we ll as all rea sona ble and legitimate inferences that may be drawn

therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Where the

sufficiency of the evidence is contested on appeal, the relevant question for the

reviewing court is whether any rational trier of fact could have found the accused

guilty of every element of the offense beyond a reaso nable d oubt. State v. Harris,

839 S.W.2d 54, 75 (Tenn. 1992); Tenn. R. App. P. 13(e). In conducting our

evaluation of the convicting evidence, this Court is precluded from reweighing or

reconsidering the evide nce. State v. Morgan, 929 S.W.2d 380, 383 (Tenn. Crim.

App. 1996). More over, th is Court may not substitute its own inferences “for those

-7- drawn by the trier of fact from circum stantial evidence.” State v. Matthews, 805

S.W .2d 776, 779 (Tenn. Crim . App. 1990 ).

B.

Rape is defin ed as the “unlawful sexual penetration of a victim by the

defendant or of the de fendan t by a victim” a nd “[f]orce o r coercion is used to

accomplish the act.” Tenn. Code Ann. § 39-13-503(a)(1) (1991). Unlawful

sexual penetra tion “me ans se xual interco urse, cunnilingus, fellatio, anal

intercourse, or any oth er intrusion , howeve r slight, of any part of a person’s body

. . . into the genital or anal openings of the victim’s, the defendant’s, or any other

person ’s body . . .” Tenn. Code Ann. § 39-13-501(7) (1991). “Force” means

“compulsion by the use of physical power or violence,” and “coerc ion” is defined

as the “threa t of kidnap ping, exto rtion, force, o r violence to be performed

imm ediate ly or in the future.” Ten n. Code A nn. §§ 39-11 -106(a)(12),

39-13-501 (1) (1991).

The victim testified that Appellant grabbed her around her neck from

behind and dra gged h er into the b edroom . When she asked what he was doing,

Appellant replied, “[i]f you just be quiet and don’t fight me, I won’t hurt you.” The

victim testified that she was frightened and begged Appellant to stop. Appellant

pulled off the victim’s clothing and pene trated her vagina lly, forced her to perform

oral sex on him , and then pe rformed ora l sex on her.

The crux of Appellant’s argument is that the victim’s testimony was

uncorroborated and unbelievable. However, it is well-settled that a defendant can

be convicted of rape based solely upon the uncorroborated testimony of the

victim. State v. McKnight, 900 S.W .2d 36, 48 (T enn. Crim. A pp. 1994).

Furthermore, questions of the weight and credibility of the witnesses’ testimony

are matters entrusted exclusively to the jury as the trier of fact. State v. Goode,

-8- 956 S.W.2d 521, 526 (Tenn. Crim. App. 19 97); State v. Brewer, 932 S.W.2d 1,

19 (Tenn. Crim. App. 1996). The jury obviously accredited the victim’s testimony,

and this C ourt is not a t liberty to overtu rn the jury’s a ssessm ent.

After reviewing the testimony in the light most favorable to the state , we

conclude there is sufficie nt evidence for a rational trier of fact to find that

Appe llant, through force o r coerc ion, un lawfully s exually pene trated th e victim in

three (3) separate instances. 3 This issu e has n o merit.

VICTIM’S MENTAL HEALTH RECORDS

Appellant challenges his convictions on the basis of several rulings by the

trial court denying him access to information and testimony concerning the

victim’s mental health records and history. Appellant allege s that the trial court

erred in refus ing to a llow Ap pellan t to cros s-exa mine the victim concerning her

mental condition , in refusing the allow in to eviden ce D.M .’s menta l health

records, and in quashing a subpoena for Dr. Susan O’Connor, the psychiatrist

who was counseling D.M. A ppella nt furthe r argue s that th e trial co urt erre d in

ruling that Appellant could not elicit testimony that D.M. had been receiving

counseling a t the Rutherford C ounty Guida nce Cen ter.

A. Background

Prior to trial, the defense learned that the victim had been receiving

counseling at the Rutherford County G uidance C enter for approxim ately thirty

(30) days prior to the incident on April 23. Appellant filed a motion for an

independent psychological examination of the victim and req uested that the sta te

3 Although not raised by either party, we have examined the record and find that three (3) separa te convic tions for ra pe are c onstitutiona lly permiss ible in this cas e. See State v. Barney, S.W.2d (Tenn. 1999).

-9- produce the victim’s psychiatric records from the Guidance Center. The trial

court denied Appellant’s motion for an independent psychological examination

of the victim. After conducting an in camera inspe ction o f the victim ’s psyc hiatric

records, the trial court also denied Appellant’s motion for production of those

records, finding such rec ords to be irrelevan t. Furthermore , the trial court

precluded Appellant from cross-examining the witness as to her mental condition

on relevancy grounds as well. However, the trial court added, “I mean, if you can

tie it in and make it relevant, yes, but general fishing expeditions to embarrass .

. . and intimidate” the witness would be prohibited.

B. Access to Victim’s Psychiatric Records

Appellant claims that he should have been allowed to exam ine the victim’s

psych iatric records for the purpose of impeaching her, and the trial court e rred in

denying him access to such records. See State v. Barnes, 703 S.W.2d 611, 617

(Tenn.1985) (holding that it is permiss ible “to cross-examine a k ey accusato ry

witness in a criminal case as to his mental state or condition . . . for the purpose

of impeaching the witness.”). The trial court conducted an in camera inspection

of D.M.’s mental health records to determine the probative value of such records.

Howeve r, the trial court determined that the information contained in the records

was irrelevant. We agree. The records indicate that D.M. sought counseling for

anxiety and pa nic attacks. There is no evidence that D.M. was delusional or

prone to fabrication. Nothing in the records pertained to D.M.’s credibility or the

probative value of her testimony. Our review of the records shows no information

which could reasonably have been helpful to the defense in challenging the

victim’s veracity. The trial court prope rly den ied Ap pellan t acce ss to th e victim ’s

confidential mental health rec ords. See State v. Middlebrooks, 840 S.W.2d 317,

332-33 (T enn. 1992 ).

-10- C. Cro ss-Ex amin ation o f Victim

Appellant also claims that he was denied his right of confrontation when

the court refus ed to allow defens e coun sel to cross-e xamin e the vic tim

concerning her men tal con dition. H e furthe r argue s that th e trial co urt imp roper ly

restricted his cro ss-exa mina tion of th e victim ’s preliminary hearing testimony and

refused to allow him to cross-examine the victim regarding her alleged purchases

of illegal drugs.

The confrontation clause of the Sixth Amendment provides two types of pro tection for c riminal de fendan ts: the right to physic ally face thos e who te stify agains t them, a nd the righ t to cross-examine witnesse s. Penn sylvan ia v. Ritc hie, 480 U.S. 39, 51, 107 S.Ct. 98 9, 998, 9 4 L.Ed.2d 40, 53 (19 87). Th e right to cross-examine witnesse s, howe ver, does not includ e the po wer to require the pre trial disclosure of any and all information that might be useful in co ntradicting unfavora ble testim ony. Id., 480 U.S. at 53, 107 S.Ct. at 999, 94 L.Ed.2d at 54. Therefore, the right to confront witnesses is satisfied if defense counsel receives wide latitude at trial to cross-examine, because the confrontation clause only guarantees “an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” Id. (quoting Delaware v. Fensterer, 474 U.S. 1 5, 20, 106 S.C t. 292, 294, 88 L.E d.2d 15, 19 (1 985)).

State v. Middlebrooks, 840 S.W.2d at 332-33. The United States Sup reme C ourt

has recognized that the right to “confront and to cross- e xamine is not abs olute

and may, in appropriate cases, bow to accommodate oth er legitima te interests

in the criminal trial process .” Chambers v. M ississippi, 410 U.S. 284, 295, 93

S.Ct. 1038, 1046, 35 L.Ed. 297 (1973). For instance, a trial judge has the

discretion “to limit reasonably a criminal defendant’s right to cross-examine a

witness ‘based on concerns about, among other things, harassment, prejudice,

confusion of the issues, the witness’ safety, or interrogation that is repetitive or

only marginally relevan t.’” Michigan v. Lucas, 500 U.S. 145, 149, 11 1 S.Ct. 1743,

1746, 114 L.Ed.2d 205 (1991) (quoting Delaware v . Van A rsdall, 475 U.S. 673,

679, 106 S .Ct. 1431, 143 5, 89 L.Ed.2d 674 (1986 )).

-11- The trial court ruled that Appellant could not cross-examine the victim as

to her m ental c onditio n bec ause it was irrelevant. How ever, the trial court noted

that Appe llant co uld cro ss-exa mine the victim on her mental state if it became

relevant, but “general fishing exp editions” d esigne d to em barrass and intim idate

the victim wou ld not be a llowed. This ruling was en tirely prope r. Michigan v.

Lucas, 500 U .S. at 149 , 111 S.C t. at 1746; Chambers v. Mississippi, 410 U.S. at

295, 93 S.C t. at 1046. A lthough a crimina l defenda nt has the right to confront

and cross-examine witnesses against him, that right is limited by Rule 402 of the

Tennessee Rules of Evidence in that neither party “may cross-examine a witness

on matters that are irrelevant.” State v. Williams, 929 S.W.2d 385, 389 (Tenn.

Crim. App . 1996) (citation om itted).

Furthermore, the trial court did not und uly restrict the cross-examination

regarding the victim’s preliminary hearing testimony. Defense counsel thoroughly

cross-examined the victim a bout w hy she did no t imm ediate ly call for help during

or after the rape, her abusive past relationships, and the inconsistencies between

her testimony at trial and her testimony at the preliminary hearing.

Appellant likewise ar gues th at the trial court erred in excluding defense

questions to the victim regarding alleged statements made by D.M. that she was

buying coca ine for h er boy friend. W e find th is cont ention withou t merit. N ot only

was such questioning irrelevant, but it was clearly designed to harass the victim.

See Tenn. R. Evid. 402 and 403. “While great latitude in the area of

impeachment should be granted, the propriety, scope, and manner of the cross

examination still rest with the discretion of the trial court.” State v. Forbes, 918

S.W.2d 431, 450 (Tenn. Crim. App. 1995). This Court will not disturb

discretionary limits on cross-exa mination ab sent a show ing of clear and p lain

-12- abuse. Id. The trial court did not abuse its discretion in excluding such

questioning.

D. Motion to Quash

Appellant also claims that he was denied his right to co mpulsory process

when the trial court quashed a subpoena for Dr. Susan O’Connor, the psychiatrist

who was counseling the victim at the Rutherford County Guidance Center. The

trial court, after finding that the victim ’s men tal health h istory was irrelevant,

excused Dr. O’Connor from testifying for the defense.

Tenn . Code Ann. § 2 4-1-207 (a) provide s, in pertine nt part:

[c]ommunications between a patient and a licensed physician when practicing as a psych iatrist in the course of and in connection with a therapeutic counseling relationship . . . are priv ileged in proceedings before judicial and quasi-judicial tribunals. Neither the psychiatrist nor any member of the staff may testify or be compelled to testify as to such communications or otherwise reveal the m in such p roceed ings witho ut conse nt of the pa tient excep t:

(1) In proceedings in which the patient raises the issue of the patient's mental or emotional condition;

(2) In proceedings for which the psychiatrist was ordered by the tribunal to ex amine the patien t if the patient w as advise d that communications to the psychiatrist wou ld not be privileged, but testimony as to the communications is admissible only on issues involving the patient's mental or emotional condition; and

(3) In proceedings to involuntarily hospitalize the patient under § 33-6-103 o r § 33-6-104, if the psychiatrist decides that the patient is in need o f care an d treatm ent in a res idential facility. U nless otherwise ordered by the co urt, the exce ption is limite d to disclosures neces sary to es tablish that the patient poses a substantial likelihood of serious harm re quiring involuntary hospitalization under § 33-6-103 or § 33-6-104.

(Emph asis added ).

None of the listed exceptions ap ply in this case. Further, the victim clearly

did not consent to Dr. O’Connor testif ying regarding her counseling sessions.

Moreover, the trial court previously deemed the victim’s mental health to be

-13- irrelevant at trial. Therefore, the trial court properly quashed the subpoena for Dr.

O’Conn or.

E. Conclusion

After a careful review of the victim’s mental health records submitted under

seal to this Court, we agree with the trial court that the victim’s psychiatric histo ry

had no bearing on her credibility. We, therefore, conclude that Appellant was not

denied the opportu nity “to expo se to the ju ry the facts from w hich ju rors ... co uld

appro priately draw inferences relating to the reliab ility of the witnes s.” Davis v.

Alaska, 415 U.S. 308, 318, 94 S.Ct. 1105, 1111, 39 L.E d.2d 347, 35 5 (1974); see

also State v. Middlebrooks, 840 S.W.2d at 333.

This issu e is withou t merit.

LEADING QUESTIONS

Appellant asserts that he was denied a fair trial when the state asked

allege dly improper and highly prejudicial leading questions of a prosecution

witness. Gwendolyn Willard, the emergency room nurse who examined D.M. the

evening of the ra pe, tes tified tha t she o bserv ed red mark s on th e victim’s

forearms and lower left leg. On cross-exam ination, W illard acknowledged that

the victim did not attribute the red markings on her body to any force that

occurred during the rape. On re-direct examination, the following exchange

occurred:

Q. W ell, she never said that’s what happene d to her, but are they [the ma rkings] not consistent with what happen ed to her?

-14- MR. DANIEL: Your Honor, he is leading the witness now, and this is his witness.

THE COURT: Your response.

GEN. HOLCOMBE: I ’ l l rephras e it.

THE COURT: All right.

GEN. HOLCOMBE: You said that you had her history. And although she did not lin k these, my question is, would you tell us whether o r not they are consistent with that history.

MR. DANIEL: Objection, your Honor, you know, anything could be consistent with anything. I mean tha t doesn’t --

THE COURT: Overruled. You can answer.

A. They could be consistent with this history.

The state concedes that the first question was, in fact, a leading question.

The second question, however, was not leading. “A leading question has been

defined as one which ‘suggests the specific answer desired.’” N. Cohen, D. Paine

& Shepp eard, Tennessee Law of Evidence § 611.6 (3d ed.1995) (citation

omitted). The state’s question, as ultimately posed, did not suggest the answer

desired. In any event, Appellant has not shown how he was prejudiced by the

alleged leading q uestions and, ther efore, is no t entitled to relie f. State v.

Caughron, 855 S.W .2d 526, 538 (Tenn. 199 3).

-15- This issu e is withou t merit.

INTRODUCTION OF MEDICAL REPORT

In his next issue, Appe llant arg ues th at the tria l court e rred in admitting into

evidence the victim’s emergency room report. He insists that the report was

hearsay and not admissible under any of the hearsay exceptions. Furthermore,

he contend s that the trial court erred in pa ssing such re port to the jury.

During Gwen dolyn W illard’s testim ony, she utilized the emergency room

triage assessment report to refresh her memory. In the report, Willard noted that

the victim was a patient at the Ruth erford County Guidance Center. During

cross-examination, the defense sought to question Willard about the Guidance

Center notation4 and requested that the report be submitted as a part of the

defense offer of proof regarding the victim’s mental state. The state suggested

that the report be admitted as an exhibit which would not be passed to the jury.

Defense counsel replied, “[t]hat’s fine.” Subsequently during the trial, the sta te

requested that a redacted versio n 5 of the record be passed to the jury, and

Appellant objected. The trial court overruled Appe llant’s objection and allowed the

redacted record to be passed.

Initially, we note that this issue is waived because Appellant failed to make

a contemporaneous objection to the admission of the exhibit. State v. P hilpott,

882 S.W.2d 394, 405 (Tenn. Crim. App. 1994); Tenn. R. App. P. 36(a). Indeed,

Appellant actually consented to the report’s admission into evidence.

4 The trial co urt de nied t he re que st ba sed upon prev ious ruling s co nce rning the vic tim’s psychological state.

5 The redacted version de leted the reference to the Rutherford Coun ty Guidance Center.

-16- Although Appellant claims that he objected to the adm ission of the report,

he merely o bjected to the exhib it being pa ssed to the jury. This Court has

previo usly stated the jury “is entitled to review those exhibits which have been

admitted as evidence in the case.” State v. R ichard A llen Kidd, II, C.C.A. No.

03C01-9607-CC-00272, 1997 WL 789909 at *4, Ande rson C ounty (Tenn. Crim.

App. filed Dec ember 2 3, 1997, at Kn oxville).

Furthermore, the hospital records of the victim are admissible under Tenn.

R. Evid. 803 (4), beca use the report (1) was made for the purpose of medical

diagn osis and treatment; (2) describes the medical history of the declaran t, i.e.,

the victim; and (3) is “reaso nably pertinent to diag nosis and trea tment.” State v.

Edwards, 868 S.W .2d 682, 699 (Tenn. Crim . App. 1993 ).

Nevertheless, Appellant has not demonstrated how he was prejudiced by

the adm ission of this evidence. The information contained in the report was

presen ted to the jury through the testimony of Willard, who essentially read the

report into the rec ord. Th erefore, a ny error in th e adm ission of the report into

evidenc e was a t most ha rmless . See State v. Edwards, 868 S.W.2d at 699.

This issu e has n o merit.

PHOTOGRAPHIC LINE-UP

Appellant claims that the trial court erred in allowing the state to admit the

photo graph ic line-up in which the victim identified Appellant as the perpetrator of

the rape. He argues that the line-up was irrelevant at trial because he admitted

that he assisted the victim with her vehicle on April 23. Further, he asserts that

the photographic line-up was unduly prejudicial in that the photograph depicted

him as a “perso n accu sed of crim e.”

-17- W e must note that Appellant did not contemporaneously object to the

admission of the pho tograph ic line-up. A s such, this issue is w aived. State v.

Gilmore , 823 S.W .2d 566, 570 (Tenn. Crim . App. 1991 ); Tenn. R. A pp. P. 36(a).

Although Appellant insists tha t he did object, such objection was untimely.

Defense counsel objected to the admission of the line-up at the conclusion of the

witness’ testimony. The line-up had already been admitted into evidence, and

any objection was, at that point, too late.

Regardless, the photogra phic line-up was properly admitted. “[T]he

decision to admit or exclude evidence is left to the sound discretion of the trial

judge and the judge’s decision will not be dis turbed unles s it has b een a rbitrarily

exercised.” State v. Davis , 872 S.W .2d 950, 955 (Tenn. Crim . App. 1993 ).

Evidence that the victim identified Appellant as the perpe trator o f a crim e is high ly

relevant. Tenn. R. Evid. 401. Furthe rmore, the pro bative value of such evidence

outweighs any prejudicial impact. Certainly, the jury was aware that Appellant

had been “accused of crime,” as he was standing trial for a criminal offense.

APPELLANT’S PRIOR CONVICTIONS

In his ne xt issue Appe llant ch alleng es the trial cou rt’s ruling on th e

admis sibility of a prior conviction for impe achm ent pu rpose s. He a rgues that his

prior conviction for assault with intent to rob is similar to ra pe in that b oth offenses

involve “assaultive cond uct.” Further, he asserts tha t the probative value of the

prior conviction on the issue of credibility is sligh t, and therefore, is outweighed

by its prejud icial impac t.

-18- Under Rule 609 of the Tennessee Rules of Evidence, there are specific

procedures to be followed before prior convictions of a criminal accused may be

admitted into evidence for impeachment purposes. The state must provide the

accused with written notice prior to trial of the propo sed impe aching con viction(s).

Tenn. R. Evid. 609(a)(3 ). Prior to the testi mony of the accused, the trial court

must determine that the convic tion’s probative value on credibility outw eighs its

unfair prejudicial effect on the substan tive issues . Id.; see also State v. Farmer,

841 S.W.2d 837, 839 (Tenn. Crim. App.1992). In making such a determination,

the trial court should “assess the similarity between the crime on trial and the

crime underlying the impeaching conviction.” N. Cohen, D. Paine & Sheppeard,

Tennessee Law of Evidence § 609.9 at p. 376 (3 d ed.19 95). Secondly, the trial

court must “analyze the relevance the impeaching conviction has to the issue of

credibility.” Id.

The state gave no tice of its intent to impeach Appellant, should he choose

to testify, with a prior c onvictio n in Mic higan of ass ault with the intent to rob. Prior

to the defen se proo f, the trial court conducted a jury-out hearing to determine the

admissibility of Appellant’s prior co nviction for impea chmen t. The trial court

found that the offenses were inherently different, in that the prior conviction

involved a robbery whereas Appellant was standing trial for a sexual offense.

Furthermore, the trial court found that the probative value on the issue of

Appe llant’s credibility outweig hed an y prejudicia l effect. Therefore, the trial court

ruled that the state c ould im peac h App ellant w ith the p rior offe nse, if he testified.

W e agree with the trial court that the impeaching conviction was dissimilar

to the present offense of rape. Despite the violence inherent in each offense, one

offense is sexual in nature while the other involves a robbery. Nevertheless, the

fact that the prior offe nse is s imilar to the crime for which a defendant is being

-19- tried does not necessarily requ ire that it be ex cluded . State v. Blevins, 968

S.W .2d 888, 893 (Tenn. Crim . App. 1997 ).

Appellant’s prior conviction was highly probative of credibility in that it

involved robbery which implicates the critica l elemen t of dishon esty. State v.

Carruthers , 676 S.W .2d 935 , 941 (T enn. 19 84); State v. Blevins, 968 S.W.2d at

893. Courts of this state h ave held that the o ffenses of burg lary and theft are

“highly probative of credibility,” because these crimes involve dish onesty. State

v. Baker, 956 S.W.2d 8, 15 (Tenn. Crim. App. 1997) (citing State v. Crank, 721

S.W.2d 264, 266-67 (Tenn. Crim. App. 1986); State v. Tune, 872 S.W.2d 922,

927 (Tenn . Crim. A pp. 199 3); State v. Miller, 737 S.W.2d 556, 560 (Tenn. Crim.

App. 1987 )).

Under this Court’s review, we do not re-evaluate w hether the pro bative

value of the defendant’s prior conviction outweighs the poss ible prejudicial effect

it might ha ve had. State v. Roberts, 943 S.W.2d 403, 408 (Tenn. Crim. App.

1996). W e may o nly reve rse the decisio n of the trial cou rt if we find that it abused

its discretion in admitting the conv ictions. Id.; State v. Tune, 872 S.W.2d at 927.

As Appe llant’s prior conviction of assault with intent to rob is probative of

credibility, the trial c ourt did not abus e its disc retion in ruling th at the s tate co uld

impeach Appellant with this prior co nviction, if he chose to tes tify.

LIST OF WITNESSES

Appellant alleges that the trial court erred in allowing the state to inform the

jury that App ellant had provided a list of “alibi witne sses.” He argues that the

prose cutor’s statem ent is ana logous to that in State v. Meeks, 876 S.W.2d 121,

-20- 129 (Tenn. Crim. App. 1993), where this Court overtu rned th e defe ndan t’s

convictions after finding tha t the state had erroneously referred to the defense of

alibi contrary to Ten n. R. Crim. P. 1 2.1(f).

In Meeks, the defense had filed a notice of a pote ntial alib i witnes s, Ron nie

Anderson, but withdrew its intent to present an alibi defense during a bench

conference at trial. Id. at 128-29. During cross-examination, the prosecutor

questioned Anderson as to whether he knew that he had been listed as an alibi

witness for the defense. Id. at 129 . The tr ial cou rt susta ined th e defe ndan t’s

objection to this question, but allowed further inquiry into the alibi defense by the

prosecution. Id. This Court reversed the defendant’s conviction due to a

violation of Tenn . R. Crim . P. 12.1(f), w hich proh ibits the ad mission into evidence

the defendant’s intent to rely on the alibi defense once that intention has been

withdrawn. Id. at 128-29. Th is Court observed that the error was “compounded

when the State was allowed in closing argument to make adversarial use of the

defendan t’s withdrawal of the alibi defe nse.” Id. at 129.

In the case sub judice, Appellant points to a n excha nge be tween th e state

and Belinda Talley where the prosecutor asked if she knew Robert Verge. Mrs.

Talley respon ded, “[t]hat’s my d ad. W hich one ? It’s [sic] two R obert Ve rges.”

The prosecutor replied, “[t]his is just a list of witnesse s provide d by Mr. D aniel to

us.”

W e find the present case to be disting uisha ble from this Cour t’s hold ing in

Meeks. First, the holding in Meeks was based upon a violation of Tenn. R. Crim.

P. 12.1(f) due to the fact that the defense had withdrawn its intention to use an

alibi defense at trial. In this case, Appellant had not withdrawn his notice of alibi.

Indeed, the defense presented testimon y as to Ap pellant’s w hereab outs during

the time of the offenses, and defens e coun sel ma de an a libi argum ent durin g its

-21- closing. Secondly, unlike in Meeks, the prosecution did not refer to the witnesses

as “alibi witne sses” bu t merely re ferred to th e list as a “list of w itnesses .”

Furthermore, the question was an isolated incident in that the prose cutor’s

comment was the only one which could vaguely be construed as commenting on

the de fense ’s change in tactic. We conclude that Appellant was not prejudiced

by the pro secution ’s referenc e to a “list of witn esses.”

VICTIM’S HEARSAY STATEMENT

In his next issue, Appellant complains that the state and trial court

impro perly characterized certain statements made by the victim to defense

witnesses as hearsay. He argues that any statement made by the victim is an

admis sion and is admis sible as a n adm ission by a party opponent under Tenn.

R. Evid. 803(1.2). We disagree. The parties to a criminal case are the State of

Tennessee and the defendant. The victim is a witness, albeit an interested one,

in the litigation. Ther efore, th e victim ’s state men ts do n ot fall under the purview

of Rule 8 03(1.2). T his issue is without m erit.

CLOSING ARGUMENT

Appellant also argues that the trial c ourt de nied h im a fair trial by making

improper and biased rulings during closing argument. Specifically Appellant

alleges that the trial court erred in sustaining the state’s objections to defense

coun sel’s use of the words “preposterous” and “I guarantee” during closing

-22- argum ent. Furthe rmor e, he c laims that the trial cou rt cut off d efens e cou nsel’s

argument in mid-sentence and refused to allow counsel five seconds to conclude

his final sentence, while giving the prosecution an additional thirty (30) seconds

for argum ent. Add itionally, he asserts that in the state’s closing argument, the

prosecutor erroneously referred to the defense’s failure to present evidence of

motive after the defense had been precluded from introducing such evidence.

Finally, he contends that the prosecutor improperly injected his personal opinion

into his clos ing arg ume nt. W e will take ea ch of these assign men ts of erro r in

turn.

A. Defense Closing Argument

Appellant claims that the trial court erred in sustaining the state’s

objections to defe nse c ouns el’s arg ume nt on th e bas is that defense counsel

impro perly asserted his perso nal opinio n. Defense counsel began his argument

by stating that the prosecutor “sa id to you [jury] someth ing that is absolutely, in

my mind, preposterous.” The state objected, and the trial court sustained the

objection. Subsequently, defense counsel stated on two separate occasions, “I

guarantee” in conjunction with his a rgume nt. The p rosecu tion’s objec tions to

such co mm ents we re sustain ed by the trial court.

An attorne y shou ld not in ject his p erson al opin ions in clo sing argu ment.

State v. Payne, 791 S.W.2d 10, 20 (T enn.19 90); see also State v. Hicks, 618

S.W.2d 510, 516, 517 (Tenn. Crim. App.1981 ); Sup. Ct. Rule 8 , DR 7-106 (C)(4).

Each of these contested statements clearly expressed defense counsel’s opinion.

The trial court properly sustained the state’s objections to these comments.

Appellant further contend s that the trial court show ed partiality in limiting

the time defense counsel was allowed to argu e. W e do no t agree. P rior to

argum ent, the trial court clearly stated that both sides would be allowed only thirty

-23- (30) minute s for argu ment. This was entirely within the court’s discretion. Tenn.

R. Crim. Pro 29.1(c). Although Appellant complains that the trial court cu t off

defense coun sel in mid-sentence withou t allotting any ad ditiona l time to finish h is

sentence, the trial court similarly terminated the state’s argument when the

prosecu tion’s time had ended. Furthermore, the additional thirty (30) seconds

afforded the state fo r its argum ent was to compensate for the time used by

defense coun sel’s repeated objections and subsequent arguments with the trial

court’s rulings. “Trial judges are accorded wide discretion in control of the

argum ent.” State v. Zirkle, 910 S.W .2d 874 , 888 (T enn. C rim. App . 1995). The

trial court did not abuse its discretion.

B. Prosecutorial Misconduct

Appellant also argues that the state committed prosecutorial misconduct

by referring to the lack of proof that the victim had a motive for fabricating the

rape when the defense was precluded from going into possible moti ves of the

victim. He also claims that the prosecutor improperly asserted his own personal

opinion d uring clos ing argu ment.

1.

In its summation, the defense argued that the victim fabricated the rap e in

order to gain sympathy from her estrang ed boyfrie nd. In rebuttal, the assistant

district attorney stated:

Now, he wan ts you to believe that she is an emotional basket case, that she did this for some m otive. And I subm it to you there really isn’t a m otive, and I’m going to come back to this, but let me ask you this. Did you hear a single witness get up on this sta nd, in all the witnesses that you’ve heard, and say she is the type of person that does this? She’s done this before. She will make up a wild allegation to get some body ba ck. Did Je rry Hunte r say that? Did Terry Alexander say that? Did anyone else [say] that? In all the supposed boyfriends that she’s had, this person who goes around

-24- doing this type of thing, did a single person get up here and say that’s the kind of thing s he’d s ay? N o, they d idn’t. No t a sing le person said that about her. Not a single perso n said she w ould make some thing like this up. Now , let’s talk abo ut that.

The prosecution’s argument continued:

Now, why didn’t she immediately call the police? Just like he wants you to be lieve that the re ough t to be a climax in eve ry single rape case, even though that’s not the law, he wan ts you to say every rape victim needs to call 911 immediate ly, or eve ry rape victim needs to run right over and rep ort this. She gave you a very honest answer why sh e didn ’t. She said because everybody knows what a rape victim goes through. And that’s exactly what she’s gone through; isn’t it? A long preliminary hearing, statements, stayed at the hospital for hours that night undergoing a rape examination, had to turn ove r her clothe s, had to tu rn over he r blanket.

....

. . . She sat on this stand for hours and had to be questioned about every single incident, h ad to bring up pas t boyfriend s, every type of slur that could be thrown against her as to why she was doing this. She was righ t in not doin g that. Did she do it to be vindictive? She didn’t even want to call the police. . . .

(Emph asis added ).6

2.

Both the state and the d efense are afforde d wide latitude in argu ing the ir

cases to the jury. State v. Bigbee, 885 S.W.2d 797, 809 (Tenn. 1994); State v.

Zirkle, 910 S.W.2d at 888. However, when the prosecution’s argument goes

beyond that wid e latitud e afford ed, the test to d eterm ine wh ether r evers al is

required is “whether the im propriety ‘affected the verdict to the prejudice of the

defen dant.’” State v. Bigbee, 885 S.W.2d at 809 (quoting Harring ton v. State , 215

Tenn. 33 8, 385 S.W .2d 758, 759 (1965)).

In reviewing a claim of prosecutorial misconduct during clo sing argu ment,

we are guided by such factors as:

6 Emphasis added to point out specific portions of prosecution’s argument that Appellant finds objectionable.

-25- 1. The conduct complained of viewed in conte xt and in light of the facts and circumstances of the case.

2. The curative m easure s unde rtaken b y the cou rt and the prosec ution.

3. The intent of the prosec ution in m aking the improp er statem ent.

4. The cumulative effect of the improper conduct and any oth er erro rs in the reco rd.

5. The relative strength or weakness of the case.

Judge v. State, 539 S.W .2d 340, 344 (Tenn. Crim . App. 1976 ).

3.

Appellant contends that the prosecution’s reference to Appellant’s lack of

evidence of motive was improper because he was precluded from introducing

such evidence by the trial court. Ho wever, co ntrary to Appellant’s assertion, the

trial court did not restrict the defense’s ability to explore the theory of motive or

fabrication through witness testimony or argument. The trial court informed

Appellant that he would be able to cross-examine the victim concerning her

mental condition, if that condition was relevant to the issues at trial. The trial

court mere ly preve nted A ppella nt from delving into the victim’s psych iatric history

as a means of embarrassing or harassing the victim.

In any event, the state’s argument was not directed at the victim’s

psychological state, but was in response to defense counsel’s argument that the

victim fabricated the incident. The state argued that none of the witnesses

supported the defense theory. “The bounds of proper argum ent larg ely depend

upon the facts in evidence, the character of the trial, and the conduct of opposing

counsel.” State v. Coker, 911 S.W .2d 357 , 368 (T enn. C rim. App . 1995). The

prosecution’s a rgumen t was not imp roper.

4.

-26- Appellant also claims that the prosecution improperly asserted a personal

opinion during its closing argument. A lawyer must not assert his personal

opinion as to the credibility of a witness, or as to the guilt or innocence of the

defend ant. State v. Henley, 774 S.W.2d 908, 911 (Tenn. 1989). Furthermore,

it is “unprofessional conduct for a prosecu tor in his arg umen t to the jury to

express his or h er pers onal b elief or o pinion as to the truth or falsity of any

testimony or evide nce, or the guilt of the de fendant.” Id. at 911.

The prosecutor improperly commented upon the victim’s testimony when

he stated that she gave “a very honest answer” as he was expressing his

personal belief as to the truth of her testimony. However, this was an isolated

incident, and taken in context of the argument as a whole, the comment does not

appear to have p rejudiced the App ellant. See State v. Henley, 774 S.W.2d at

911. Moreover, the remaining comments cited by Appellant are not personal

opinion. The pr osecu tion’s statem ents that the victim had to endure slurs to her

character and that she did not want to call the police were proper c omm ents

based upon fa cts in the re cord. See Coke r v. State, 911 S.W.2d at 368.

5.

None of the alleged pro secutorial errors during closing argument appear

to have affected the verdict to Appellant’s prejudice and do not warrant a reversal

of his convic tions. See State v. Bates, 804 S .W .2d 86 8, 881 (Ten n. 199 1). Th is

issue ha s no m erit.

SENTENCING

In its cross-appeal, the state argues that the trial court erred in sentencing

Appellant to thirteen (13) years, one year above the minimum sentence for a

-27- Range II offender of a Class B felony. Specifically, the state contends that the

trial court erred in failing to apply certain enhancement factors. Therefore, the

state claims that the se ntence wa s too lenient, and A ppellant shou ld have

received a sentence in the middle of the range.

When a party complains of the sentence imposed at trial, we must conduct

a de novo review with a presumption of correctness. Tenn. Code Ann. § 40-35-

401(d). The burden of showing that the sentence is improper is upon the

appealing party. Te nn. Co de Ann . § 40-35 -401(d) S entencing Commission

Commen ts. This p resum ption, h owev er, is conditioned upon an affirmative

showing in the record that the trial court considered the sentencing principles and

all the relevant facts and circums tances . State v. Ashby, 823 S.W.2d 166, 169

(Tenn. 1991 ). How ever, if the trial court fails to comply with the statutory

principles, there is no presumption of correctness and our review is de novo.

The Sentencing Reform Act of 1989 established specific procedures which

must be followed in sentencing. These procedures, codified at Tenn. Code Ann.

§ 40-35-210, mandated the trial court’s consideration of the following:

(1) The evidence, if any, received at the trial and the sentencing hearing; (2) [t]he presentence report; (3) [t]he principles of sentencing and arguments as to sentencing alternatives; (4) [t]he nature and c harac teristics of the c rimina l cond uct invo lved; (5) [e]vidence and information offered by the parties on the enhancement and mitigating factors in §§ 40-35-113 and 40-35-114; and (6) [a]ny statement the defendant wishes to make in his own behalf about sentencing.

Tenn. Code Ann. § 40-35-210(c) further provides that the minimum sentence

within the range is the pre sumptive sentence. The trial court must begin with the

minimum sentence and enhance that sentence to appropriately reflect any

statutory enhan ceme nt factors th at the cou rt finds to be present. Tenn. Code

-28- Ann. § 40-35-210(d). After enhancing the sentence, the court must reduce the

sentence approp riate to the weight of an y mitigating factors that the court finds.

Tenn. Code Ann. § 4 0-35-21 0(e). No particular w eight fo r each factor is

prescribed by the statu te, as the w eight given to each fa ctor is left to the

discretion of the trial court as long as the trial court complies with the purposes

and principles of the sentencing act and its findings are supported by the record.

State v. Leggs, 955 S.W.2d 845, 848 (Tenn. Crim. App. 1997); State v. Shelton,

854 S.W.2d 116, 123 (Tenn. Crim. App. 1992); Tenn. Code Ann. § 40-35-210

Sentencing Commission Comm ents.

The trial court found that App ellant was a Ran ge II, multiple offender. The

court found as en hanc eme nt facto rs that A ppella nt had a previo us history of

criminal behavior in addition to those necessary to establish the range, Tenn.

Code Ann. § 40-35-114(1); and Appellant had a h istory of unw illingness to

com ply with the conditions of a sentence involving release in the comm unity,

Tenn. Code Ann. § 40-3 5-114(8). 7 The trial court rejected two (2) enhancement

factors proposed by the state: (1) that the o ffense w as com mitted to g ratify

Appe llant’s desire for pleasu re or exciteme nt, Tenn. Co de Ann. § 4 0-35-114(7 );

and (2) that the crime was committed under circumstances under which the

potential for bodily injury to a victim was great, Tenn. Code Ann. § 40-3 5-114(16).

In mitigation, the trial court found that Appellant had gainful employment, was an

excellent worker, had the support of members of the community, had conducted

hims elf as an upstanding citizen in the past and had supported his family and

7 The trial court also found as an enhancement factor “the nature and circumstances of the offe nse whic h dea lt with th ree s epa rate p ene tration s of v ariou s type s givin g rise to the offe nse .” Th is enhan cem ent facto r listed is not a s tatutory enh ancem ent facto r and is, the refore, im proper. See State v. Strickland, 885 S.W .2d 85, 89 (Tenn. Crim . App. 1993).

-29- church. Tenn. Code Ann. § 40-35-113(13). After weighing the enhancement and

mitigating factors pre sent in this c ase, the tria l court sen tenced Appella nt to

concurrent terms of thirteen (13) years for each conviction of rape.

C.

The state c laims that the trial court erroneously failed to consider two

enhancement factors: (1) that the offense was co mm itted to gratify Appe llant’s

desire for pleasure or excitement, Tenn. Code Ann. § 40-35-114(7); and (2) that

the crime was committed under circumstances under which the potential for

bodily injury to a victim was great, Tenn. Code Ann. § 40-35-11 4(16). 8 W e

disagree.

In State v. Adams, 864 S.W.2d 31, 34-35 (Tenn. 1993), our Suprem e Court

rejected the notion that “as a matter of law, every rape is implicitly committed for

the purpose of pleasure or excitement.” The Court recognized that some acts of

rape are “simply ac ts of brutality re sulting from hatred o r the des ire to seek

revenge, control, intimidate, or are the product of a misguided desire to just

abuse another hum an being.” Id. at 35. T he Co urt held that because pleasure

or excitement is not an essential element of the offense of rape, Tenn. Code Ann.

§ 40-35-114(7) m ay be us ed to en hance a defen dant’s se ntence for rape. Id.

Howeve r, the state has the burden of dem onstra ting tha t the crim e was sexua lly

motivate d. Id.; see also State v. Hoyt, 928 S.W.2d 935, 949 (Tenn. Crim. App.

1995).

8 Neither party contests the applicability of Tenn. Code Ann. §40-35-114(1) and (8) as enhancement factors. We agree. Appellant has a prior record consisting of convictions for gross sexual impo sition and c riminal tres pass in O hio in addition to his felony c onvictions establishin g him a s a Ran ge II offe nde r. Te nn. C ode Ann . § 40 -35- 114 (1). F urthe rm ore, A ppe llant vio lated paro le on a conv iction in Michigan, demonstrating a history of unwillingness to comply with the conditions of a sentence involving release into the comm unity. Tenn. Code Ann. § 40-35-114(8 ).

-30- In this case the State points to the la ck of b rutality in this rap e, App ellant’s

inquiry of the victim as to whether she liked oral sex, and Appellant’s apology to

the victim as evidence that the rape wa s com mitted to satisfy Appellant’s de sire

for pleasure an d excitement. How ever, this tes timony is s o amb iguous as to

Appe llant’s purpose in committing this crime, that we a re not prepared to hold the

trial judge in e rror for failing to find that such evidence makes out enhancement

factor (7). T his issue is without m erit.

Having just argued that Appellant’s benign behavior in committing this rape

indicates it was not a crime of violence, the State, rather inconsistently, argues

that Appellant’s actions in holding the victim around the neck, threatening her

with injury if sh e did not submit to his advances, and wrapping bedcovers around

the victim’s he ad indica te the crime wa s comm itted under circum stances wh ere

there was g reat po tential fo r bodily injury to the victim. Tenn. Code Ann. Sec. 40-

35-114(16). Wh ile this behavior is repreh ensible it does no t appear to ha ve

subjected the victim to a risk of bodily injury greater than that ordinarily attendant

in a rape. We therefore again decline to hold the trial court in error for failing to

apply this e nhanc emen t factor. Th is issue is w ithout me rit.

D.

W e find that the trial court properly rejected the two (2) additional

enhancement factors proposed by the State when it sentenced Appellant. The

state does n ot contes t the applic ability of mitigating factors found by the trial court

but suggests tha t such mitigating fac tors are entitled to little we ight. Ho weve r, it

-31- is apparent tha t the trial court gave gre at weight to the mitigating factors, as

evidenced by Appellant’s sentence of one (1) year above the minimum sentence.

This was c ertainly within th e trial co urt’s discretion . State v. Leggs, 955 S.W.2d

at 848.9

For the reasons stated, the judgment of the trial court is AFFIRMED.

____________________________________ JERRY L. SMITH, JUDGE

CONCUR:

___________________________________ GARY R. WADE, PRESIDING JUDGE

___________________________________ DAVID G. HAYES, JUDGE

9 The App ellant rece ived a very len ient s ente nce . How ever , the w eight to be given applic able mitigating factors is a matter entrusted to the trial court and we are not ordinarily free to second guess that decision.

-32-