### IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON Ja nua ry 9, 200 7 S es sio n

STA TE OF TEN NES SEE v. FR AN K BRZ EZ OWSKI

Direc t Appeal from the Circ uit Court for Benton Coun ty No. CR1092 Julian P. G uin n, Jud ge

No. W2005-02619-C CA-R 3-CD - F iled Jun e 1, 2007

The d ef en d an t , Fr ank B rzezowski, was convicted of two counts of ag g ravated assault and thr ee counts of ag g ravated ra

pe and was sentenc ed to an ef fec tive term of twe nty -two y ear s to be serve d at 100%. On appea l, he arg ues t hat: (1) the evidenc e wa s insufficient to support his convictions; (2) the trial court err ed in denying his motion for new t rial; and (3) the trial cour t erre d in its sentencing deter mination. Upon our revie w of the r ecor d and the parties’ brie fs, we a ffirm the de fenda nt’s convictions, but remand f or a ne w sentenc ing he aring

.
Tenn. R. App . P . 3 Appeal as of Right; Judgme nts of

the Circ uit Court Aff

irm ed in Par t; Case Re m anded

J.C. M C L IN , J ., delivere d the opinion of t he court, in which D AVI D G. H AYES and N OR MA M C G EE O G LE , J J ., joined.

Rob e rt T. Ke e ton , I I I , H un tin g do n, Te nn e sse e , f or the a pp e lla nt, F ra nk B rze zow sk i.

Rob e rt E. Coo pe r, Jr., At tor

ne y Ge ne ra l and Re po rt e r; Sop hia S. L e e , Ass ist a nt A tto rn e y Ge ne ra l; G. Robert Radfor d, District Att o rn ey Gene ral; and Elizabeth B oswell, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

BACK GR OUND

On J une 7, 2004, the de fenda nt was indicted on two counts of ag g ravated assault and thr ee counts of ag g ravated ra

pe. A jury

trial was c onducted on Apr il 27 and 28, 2 0 0 5
, fr o m wh i ch we

su mma ri ze t he fo llo wi ngte sti mony

re le va nt t o th is a

pp e a l.

Thomina Alexander, the vic tim, testi fied that she was a forty -six -y ear -old, marr ied woman with an ad u l t d aug hter. Thr oug hout her life, she has battled menta l disorders and suf fer ed fr om anxiety and depr ession. She was hospitalized a couple of times in 1992 and 1993. The last time sheM r. Sho rt ’ s f i rs t nam e ap p ears as D eW ayne and D uane i n t he reco rd. W e ut i l i ze t he spel l i ng ref l ect ed i n t he 1

tria l t ra n sc rip t.

-2- was hospitalized was in 2002. At that time, the victim was separ ated f rom her husba

nd and dea ling wi th t he str e ss of g oin g thr ou g h a div or c e . Sh e ha s b e e n d ia g no se d a s h a vin g pa ra no id s c hizo ph re nia and sever e anxiety

disorder, w hich she mana g es with medications. S he also see s a psy chiatrist, Dr. Donald Gold, on a r eg ular ba sis.

The victi m f

ir s t me t th e d e f

e n d a n t a t th e E lk ’ s L o d g e , a n d th e ir f r ie n d s h ip e v o lv e d into a sexual relationship when the de fenda nt helped her

throug h her ma

rital p ro b l em s

. Be cause the d e f e n d a n t w a s im

p o te n t, th e n a tu

r e o f th e ir p h y s ic a l r e lati o n s h ip in v o lv e d to u c h in g and ora l se x, rathe r than sexual intercour se. She explained that over the course of their r elationship the defe ndant beca me more posse ssive and contro l l i n g an d was “ [i ]nsanely jealous” of

her ma le frie nds. The defe ndant was a

war e of he r mental he alth problems.

The de fenda

nt told the victim he was a volunteer policeman, but she later found out that wa s

no t tr ue

. Th e de fe nd a nt ha d be e n a po lic e of fi c e r b e fo re he mov e d to Te nn e sse e . T he de fe nd a nt t old he r t hat he wa s f

ri e nd s wi th mem be rs of the Ca mde n Po lic e De pa rtme nt a nd B e nto n Co un ty Sheriff’ s Depa

rtment.

On Wednesday , May

28, 2003, the defendant was at t he victim ’s house drinking wine whe n one of he r fr iends, Duane Short, called to tell her that he had boug ht a new c ar. The defe ndant 1
sta rt e d “ a c tin g str a ng e a nd

sc a ry” a nd

sa y ingthat he ha d p e op le “ kn oc ke d o ff . T hat th e y

wo uld jus t dis a pp e a r a nd no bo dy wo uld kn ow wh a t hap pe ne d to the m.” Th e vic tima sk e d M r. Sho rt to c ome pic k h e r u

p and sh ow he r h is n e w c a r. Whe n th e vic tima sk e d th e de fe nd a nt t o le a ve , h e be c a me “ver y , very i rate ” but soon left. Mr. Short pulled into the victim’s drivewa y , and the de fenda

nt pulled in behind him and flashed his he adlig hts. The def endant then pulled out of the drivewa y , and Mr. Short and the victim also left. How ever , the def endant pulled up behind them and chase d them for ten to f

ifteen minutes bef

ore the y lost him . The victim and Mr. Short drove around until about 2:00 a.m. beca

use she was afr aid to r eturn home. She did not tell Mr. Short about he r af fair w ith the defe ndant. When s h e re t urned home , the def endant c alled and c ursed at her for leaving with Mr. Short.

The following morning , Thursday , May 29, 2003, the def

endant came over to the victim’s house and thre atene d to tell her husband that she was having a n aff air. The victim was afr aid that such a r evelation would impair he r chanc e of rec eiving alimony

. The defe ndant left, but then ca lled lat er t h at n ight wa

nting to come to her house. T he def endant a rrived a nd immediately

“we nt berse rk.” H e choke d the victim and held a knif e to her throat threatening to slit it. The defe ndant cut his thumb in t he proc ess, and it bled on the victim’s shirt and the c arpe t.

On Fr iday , Marc h 30, 2003, the defe ndant appea red on the victim’s back por ch and ba ng ed

on the do or to b e le t in . H e a g a in t hr e a te ne d to te ll the vic tim ’s hu sb a nd a bo ut t he ir a ff a ir if sh e did not open the door. The defe ndant promised the victim he would not hur t h er

. Once inside, the-3-

defe ndant beg an ar g uing a bout the victim lea

ving with Mr

. Short on W ednesda y night. While they

we re a rguin g , Mr

. Sho rt

dr op pe d b y

the vic tim ’s ho us e a nd

the de fe nd a nt t

ri e d to sta rt a fi g ht w ith him. Mr. Short tol d the def endant that “ violence doe sn’t solve any thing,” t o wh ich the def

endant replied that “violence solves ever y thing.” The de fe ndant left a fter Mr . Short refuse d to fig ht, and Mr. Short helped the victim c hang e the lock on her door beca use she was afr aid of the de fenda nt and knew he had a ke y

to her house. T he victim said that the def endant a lway s car

ried a g un.

Th e de fe nd a nt c a lle d th e vic timthat ni g ht a ft e r m idn ig ht a nd ke pt h e r o n t he ph on e un til around 4:00 a .m. when he sa id that he was coming over to he r house. When the defe ndant ar rived, he choked her, shoved her on the couch, a nd stuck a silver or

pewter color g un with a small barr el in h e r m ou th, “ bu sti ng ” he r upp e r an d low e r lip s. Th e vic timstr ug g le d a nd so me ho w m a na g e d to

remove the gun from he r mouth. The def endant a sked her

questions about whether Mr. Short touched he r o r h ad s ex wi th her, a nd when she would say

no, the def

endant would sa

y “wr ong

answe r” a nd threaten to shoot her. The defe ndant also slapped he r over her right and left ey es.

After war d, the def

endant made t h e v i ct im go to her bedroom a

nd g et undre ssed. The defe ndant also g ot undresse d, and they sat on the bed and arg ued. One tim e the de fenda nt got mad at the victim and pulled some of he r hair out. The defe ndant let the victim have a cig are tte, but he
g rabbe d it and threatened to burn her, but somehow burned his own finger

. The victim beg an to have diarrhe a and told the de fenda nt she had to g o to the bathroom. She returne d from the bathroom but had to g o once a g ain. The sec ond time, the defe ndant burst into the bathroom and a sked if she w as calling the police. The defe ndant s tood in the bathroom door, and when she finished, the def endant shoved her

and she f ell ag ainst the bathtub.

The victim rec alled that the de fenda nt then forc ed her bac k into her bedr oom where he slapped he r ar ound and pulled out more of her hair. The defe ndant laid down on the bed, pulled the victim on top of him, and bit her nipples very hard. The victim screamed and be g g ed the de fenda nt to stop. The defe ndant then made the victim lie down on the bed a nd sprea d her le g s. He stuck the
g un in her va g ina and told her he wa s g oing to blow he r aw ay . The de fenda nt made the victim l ay

on he r s ide , a

nd he stu c k th e g un

in h e r r e c tum

wh ic h c a us e d he r to de fe c a te on

the be d. Af

te r t hat, the def endant made t he victim perf orm oral sex on him, but he g ot mad beca use she wa s not acting

e nth us ia sti c a bo ut i t.

The victim testified that af ter the oral sex incident, she curle d up on her side and crie d. The defe ndant put his hand on her le g and aske d her w hat was w rong . All of this occurr ed betwe en 4:30 a.m. and 9:00 a.m. The defe ndant allowed the victim to call her mot h er , wh i ch was pa rt of her morning routine. When h er mother asked he r if something was wr ong , she told her no. B efor e le a vin g , th e de fe nd a nt t old the vic tim

“ I kn ow y ou ha d a pre tty

-- a bit of a ro ug h nig ht la st nig ht. ” B ut, he sa id, “ Iha d to do what I did to show y ou that nobody f[] cks m e over, and to show y ou that y ou can’ t do this to m e, and to show you that Ilove y ou.”-4- And then he sa id, “You better not tell the police what h ap p en ed.” A nd he said, “You be tter not tell any body .”

An d h e sa id, “ I f you

te ll a ny bo dy ,” he sa id, “ y our f

amily ’s liv e s w ill be in dang er.”

And he sa id, “And, any

way , who do y ou think they would believe, you or

m e ?”

An d h e sa id, “ Wel l, I wa s Ce c il Wel ls’ ri g ht- ha nd man a nd

I ’m fr ie nd s w ith all the deputies.”

And he sa i d, “And y ou’ve be en in Western State bef ore.” He sa id, “I f y ou went to the m a

nd told them,” he said, “they will lock y ou up in Western State.”

As he wa s le a vin g the vic tim ’s ho us e , the de fe nd a nt d e mand e d a c op y of the ne w k e y

to h e r h ou se by the af ternoon.

Th e vic timte sti fi e d th a t sh e kn e w the de fe nd a nt wo uld tr y to h ur t he r a g a in o r p e rh a

ps kil l her if he had the ne w key t o h er h o u s e s o s he we nt to her mother’ s house and told her what happene d. The t wo o f them then we nt to the victim’s brother’s house and told him about the

a ssa ult s. Her bro th er urge d h e r t o g o to the ho sp ita l, b ut s he wa s a fr a id t o g o to the ho sp ita l in Camden.

On Monday
, J une 2, 2003, the victim soug ht me dical attention at the hospital in J ac k son. The e x amination reve aled br uises on her ne ck and c hest. A pelvic exam wa s not c onducted at the hospital in J ackson. The next day , Mr. S h o rt and L inda Dotson ac companied the victim to the Be nton County

Sheriff’ s Depa

rtment. Serg eant B ry ant Allen intervie wed t h e v i ct i m and took pic tur e s o f h e r i nju

ri e s. Th e vic tim a dmi tte d tha t sh e did no t te ll Se rg e a nt A lle n a

bo ut h e r a ff

a ir wi th the de fe nd a nt u

nti l a se c on d in te rv ie w. I t w a s a rr a ng e d f or the vi ctim t o g o to the Se xua l A ssa ult Resource Center in Memphis wher e she w as thoroug hly examined.

On cross- e xa mi n a ti o n , th e v ic ti m t e s ti f ie d th a t s h e to o k

me d ic a ti o n to k e e p c a lm
, even tho ug h th e re wa s a per iod of tim e wh e n she did no t take it. Th e vic tima dmi tte d th a t sh e sp e nt m os t of the nights betwee n the assaults and when she r eporte d the incidents to the police in he r home. The victim st a te d th a t o n T h u r s d a y , M a y 2 9 th
, th e d e f e n d a n t to ld h e r th a t h e h a d p la n te d dr u g s in her house the nig ht be fore and that he would call the police and tell the m she had drug s. That nig ht, the defe ndant ca lled her and she begg ed him to remove the drugs. The victim rec alled that the def endant

arr ived with an empty

case and a c ase c ontaining his g uns. The def endant we nt throug hout the vic tim ’s ho us e and

re mov e d b ott le s and

ba g s o f v a ri ou s d

ru g s. Th e de fe nd a nt m a de the vic tim follow him to his hous e, and the n she we nt back home. T he victim said she did not mention the drug incident during her dire ct examination because the prosec utor told her not to beca use the de fenda

nt was not cha

rg ed with any

drug offe nses. The victim admitted that she par ticipated with her

daug hter-5-

in telling a lie that her da

ug hter’s c ar ha d been stolen, w hen it had ac tually been w rec ked.

Dr . Jim Cra ig , an e me rg e nc y ro om p hy sic ian in

Jac ks on , te sti fi e d th a t he tr e a te d th e vic tim

o n J u n e 2
, 2 0 0 3, conce rning her c omplaint of being assaulted. Dr . Craig said that the victim was
cooper ative, but somewhat anxi ous and ner vous. The victim had injuries to h er lip, around her mouth, her right arm, left but tocks, and right breast. The victim also had a n injury to her for ehea d. The victim told Dr. Craig that the person who assaulted her place d a pistol in her vag inal and re ctal

are as, but he did not conduc t a pelvic e x am or c ollect a r ape kit. Dr . Craig said that he re ceive d the victim’s mental health his tory and had the authority

to commit her, if medica lly nece ssary . Howeve r, Dr. Cra ig did not commit the victim or ref er he r for mental t reatment beca use he did not observe a

ny signs that might nece ssitate such t reatment. Dr. Craig contacte d the Camden Police De partment a s part of the hospital’s protocol re g ardingassault complaints. Dr. Cra ig sa id that the victim reported that her w rist had bee n cut, but he appa rently did not indicate an injury to her wr ist on the examination template.

Nurse Ra chell Copeland w ith the Memphis Sex ual Assault Resourc e Center testified that she

saw the vic timon

June 4, 20 03 . T he vic timre lay e d th e even ts of the pr e vio us da y s to Nurs e Cop e land

. Nurs e Cop e land wa s awa re of the vic tim ’s his tor

y of me nta l il lne ss a

nd ha d th e a uth or ity
t o co m m i th er

i f n ec es s ary

. Ho we v er , Nu rs e C o p el an d d et er m i n ed t h at t h e v i ct i m wa s s t ab l e e n o u gh to go home and did not think a medical c ommitm ent was ne eded.

Nurse Copeland conducte d a pelvic exam of t he victim and did not find any injuries to her
vag inal or re ctal area s. Nurse Copeland said that penetr ation does not alwa y s cause injuries. The victim did have bruises on her arms, above her right ey e, on her right breast, and left but tocks. She also had a scratch on her

rig ht hand and a

cut injury

to her lef t wrist.

L awr ence J ames, I I , ag ent and f orensic scientist with the Tennessee Bur eau of I nvestig ation

“ TB I ,” te sti fi e d th a t he inv e sti g a te d th e vic tim ’s ho us e on June 4, 20 03 . A g e nt Ja me s f ound a thi n blood smear of

the def endant’ s blood on t h e d oor fa cing of the victim’s bedr oom, and a c lump of hair be side the ni g ht stand. He found a blood stain on the rear left sleeve of the victim’s g ray t-shirt and the blood matche d the def endant. No DNA evidenc e was found on a black knife re cover ed fr om the defendant’s vehicle. Ag ent J ames analy zed the comforter fr om the victim’s bed and did not find
any semen but did find a blood stain matching the vi ctim. Ag ent J ames re ceive d a Smith & Wesson

. 3 8 c a l i b e r

r e v o l v e r w h i c h h e a n a l y

z e d

. H e d i d

n o ts e e a n y

b l o o d o r s k i n o n t h e g u n , b u th e g ot a partial DN A profile f

rom the bar

rel end and the g rip are a of the g un that matched the victim. Age nt J ames explained that a

partial prof

ile means that more than one pe rson contributed to a mix ture, a

nd in thi s c a se , the vic tim wa s the ma jor DN A c on tr ibutor

. B a se d on his e xpe ri e nc e , Ag e nt Ja me s sa id that a per son just handling a gun would leave no DNA or at most a trac e. He said that the DNAhe

re c ov e re d f

ro m th e we a

po n wa s mor e c on sis te nt w ithmoi st s kin c on ta c t r a the r t

ha n d ry sk in c on ta c t.

On cr oss-examination, Age nt J ames said that it was a possibili ty there would be a g ood DNA result if someone e ng ag ed in dig ital sex and then picke d up a g un. Ag ent J ames stated that he had
no way of controlling what took place in the vi ctim’s house during the f ive day s betwee n the incident-6-

and the day he conducted his investigation of t he victim ’s hous e. Ag ent J ames admitt ed that blood
tr a ns fe rr e d f

ro m a blo od y c ott on ba ll c ould hav e accou nted fo r t he sta in o n th e do or

a nd on the tshirt.

Duane Short testified that he had known t he victim for about twenty -seve n y ear s, and he w ent to her house on Wednesday
, May 28, 2003, around 9:00 p.m. to show her his new car . Be fore they

c ou ld p ull ou t of the vic tim ’s dr ive wa y , a tru c k pull e d in beh ind Mr . Shor t’ s v e hic le a nd

fl a sh e d it s lights. The vehicle then followed Mr. Short and the victim around for about ten minutes. Mr. Short lear ned later that the vehicle belong ed to the def endan t. The victim was af raid to g o home and

seeme d very

nervous a

nd upset.

Mr . Sh or t dr op pe d b y

the vic tim ’s ho us e on May 30 th o n h is w a y to h is b ro the r’ s h ou se beca use he sa w the truc k that had followe d them Wednesday night parke d in her drive way . I n the defe ndant’s presence
, the vi ctim told Mr. S hort that the defendant had planted drugs in her house that Wednesday

night. The defe ndant said to Mr. Short, “ do y ou know what she did. . . . [M]e and her was sitting he re dr inking wine that night when she asked me to le ave to g o riding with [ y ou].” Mr. Short said to the defe ndant, “whe re was y our wife,” and the defe ndant bec ame outra g ed and c ursed at Mr. Short. I n a ra g e, the de fenda nt tried to g et Mr. Short to g o outside and fig ht, and Mr. Short laug hed and sa id he did not have time for that. The de fenda

nt said that “he was going to take ca re of both us, me and he r both,” whic h Mr. S hort took to mean he was g oing to kill them. Mr. Short told the defe ndant that violence did not sett l e any thing, to which the defe ndant re sponded that violence se ttled ever

y thing. The defe ndant finally calmed dow n and w al k ed out. Apparently the de fe nd a nt h a d n ot l e ft

be c a us e he kn oc ke d o n th e do or , w a lke d b a c k in sid e , a nd a sk e d Mr

. Sho rt

if he could he lp him get the ta dpoles out of the victim’s swimming pool. Mr. Short told the defenda nt that he did no t ne e d a ny he lp. Mr

. Sho rt the n w e nt w iththe vic timto g e t ne w l oc ks fo r h e r h ou se and cha ng ed th em . Mr. Short was wor ried a nd contac ted his friend, L inda Dotson, to help the victim, since she wa s terrifie d of the de fenda nt.

Mr

. Sho rt te sti fi e d that he saw the vic tim on Sun da y , June 1s t, a nd sh e wa s h y st eri c a l,

e mot ion a l, a

nd sh a ky . A t so me po int

a ft e r the ra

pe , Ms. Do tso n a rr a ng e d to me e t wi th t he vic tim

. Mr . Sh or t to ok the vic timto the ho sp ita l in Jac ks on a nd the n to the sh e ri ff

’s de pa rtme nt w he re Ms. Do tso n met wi th the m. On c ro ss- e xami natio n, Mr . Shor t r e c a lle d th a t th e de fe nd a nt d id n ot t ry to run him and the victim off the road on Wedne sday night, he just followe d them around. O n redire ct examination, Mr. Short e x plained that he did not take the victim to the local hospital be cause the defe ndant had infor

med the victim that he wa s a police of fice r and w as fr iends with the local police chief

.

L inda Dotson testified that she met with Mr. Short on Sunday , J une 1st and lea rned that the d e f e n d a n t h a d r a

p e d t h e v i c t i m a n d t h a t t h e v i c t i m w a s a f r a i d t o g o t o t h e a

u t h o r i t i e s

. O n M o n d a y, J une 2nd, Ms. Dotson went to the Benton County Sheriff’ s Depa

rtment and spoke w ith a couple of office rs about the victim. Ms. Dotson met with the victim the foll owing morning , and she w as ver y distraug ht and feare d for her l ife and family

. The victim g ave Ms. Dotson it ems from the a ssault and a knife belong ing to the de fenda nt. Ms. Dotson said that when she arr ived at the she riff’ s depar tment-7-

sh e fo un d o ut t

hat th e de fe nd a nt h a d g ive n a box of kn ive s to ea c h of t he of fi c e rs a s g if

ts, a nd tho se knives wer e the sam e as t he one the victim had g iven her . Ms. Dotson collected ha ir from the victim’s house, a t-shirt with blood on it, and the telephone with caller I D. M s

. Do t s o n g ot the victim to g o to the s heriff ’s department wher e the victim met with Serg eant Allen who videotaped the victim’s injuries.

On cross-e x amination, Ms. Dotson said that the victim was wea ring the t-shirt that she took to the police, and the h ai r wa s found in a little clump on the victim’s bed. She believe d the knife

came from the kitche n. Ms. Dotson clarifie d the time l i n e o f ev ents: she went to the she riff’ s depar tment alone the morningof J une 2nd, afte rwa rd she met with the victim and they collecte d the evidenc e, the e vidence was in the victim’s possession that nig ht, and Ms. D otson a nd the victim went to the sheriff

’s depa rtment the next day – J une 3rd. Ms. Dotson did not acc ompany the victim to the hospital in J ackson. Ms. Dotson admitted that she ha d no independe nt, first-hand knowle dg e of the assaults, but she could see the cuts and br uises on the victim’s fac e and body

.

Se r g e a n t B r

y a n t A ll e n w it

h th e B e n to n Co u n ty Sh e r if f ’ s D e p a rtm e n t te s ti f

ie d that on Monday , J une 2nd, he told Ms. Dots o n that she nee ded to have the victim come in and f ile a complaint. That same da y , Serg eant Allen was not ified by J ackson Ma dison County Hospital that the victim had come in a nd complained of

being assaul ted. The vic tim came to the sher iff’s depar tment on J une 3rd, and he rec orded her st atement and videotaped her injuries. Serg eant Allen stated that he r ece ived hair, a knife, a phone with ca ller I D, and a t-shirt from Ms. Dotson. Serg eant Allen said that the knife was not alleg ed to have been use d in the crime, but instead w as a g ift from the def endant to the victim. Serg eant Allen told the victim to g o to the Memphis Sexual Assault and Rape Center

for a complete e x amination.

Serg eant Allen stated that he was familiar w ith the victim before se eing her on June 3rd, and he h a d b e e n p r e s e n t d

u r in g ti me s w h e n h e r me n ta l c o n d it io n w a s a n is s u e

. H e s a id th a t when the victim made the complaint ag ainst the defe ndant, she wa s complet el y d i ffe rent than w hen he ha d

seen her previously

. He noted, “Other than being nervous like any of us would, she was in a g ood state of mind. . . . [S ]he was speaking clea rly and answe red the questions Iasked he r . . . .” Ser g eant Allen explained that they take pe ople to t h e emer g ency room if they

think a person ne eds to be

c omm itt e d o r h os pit a lize d fo r m e nta l r e a so ns , a nd he did no t se e a ne e d to do tha

t w iththe vic tim

. Se rg e a nt A lle n r e c a lled

tha t th e vic timini tia lly

did no t te ll h im that sh e ha d b e e n h a vin g a n a ff a ir with the defe ndant, but she conta cted him about ten da y s later a nd disclosed the af

fair.

Serg e a n t A ll e n te s ti f

ie d th a t th e d e f

e n d a n t w a s w e ll

- kn o w n b y s o me o f th e o f f ic e r s a t the sher if f ’ s d e p a rtm e n t a n d e v e n mo r e s o b y th e o f f ic e r s in th e Ca

md e n Po li c e D e p a rtm ent. The defe ndant ca

me to the sherif

f’s de partment late in the afte rnoon on June 3r d an d parke d his car at the re staurant ne x t door

. Serg eant Allen explained that any car in the police depa

rtment parkinglot

wa s su bject to sear ch at any

tim e . T he de fe nd a nt w a s Mirandized and wa ived his rig hts. The d ef en d ant said that he c ould not write very well so Serg eant Allen ta ped the inter

view. Serg eant Al le n re qu e ste d a

nd re c e ive d c on se nt t o s e a rc h th e de fe nd a nt’ s v e hic le fo r w e a po ns , a nd his ve hic le

was later sear ched a second time. The sear ches reve aled three g uns, and the victim identified oneJam es Y eager i s al so ref erred t o as Jam es Jaege r i n t he reco rd. W e ut i l i ze t he spel l i ng f rom hi s d ep o si t i o n, 2

w h ic h is Y e a g e r.

-8- of the g uns as the g un used i n the rapes. A bag of knives was a lso found in the defe ndant’s vehic le.

The ne x t day , Serg eant Allen w as to l d that the def endant wa

nted to speak w ith him aga in, and he c onducted a

second ta ped intervie w. Duringthe interview , Serg eant Allen took pictur es of the de fe nd a nt’ s h a nd

be c a us e the de fe ndant had c ut h is h a nd duri ngthe str

ug g le wi th t

he vic tim

. Both of the defe ndant’s tape d statements and the vide o of the victim’s injuries wer e play ed for the jury . Serg eant Allen stated that the victim ha d red marks on her neck that did not show up well on the video. The victim’s ey elid was y ellow and “ looked like what would e ventually develop into a bruise.” T he prose cutor dire cte d S er g eant Allen’ s attention to a seg ment during the def endant’ s taped inter

view whe re the defe ndant said that he did not rape the victim, and Serg eant Allen stated that the de fe nd a nt ha d not be e n told a t tha t po int that a ra pe a lle g a tio n h a d b e e n ma de a g a ins t hi m.

On cr oss-examination, S erg eant Allen te stified that during the def endant ’s s tatement the defe ndant said that he c ould have g rabbe d the victim’s arm a nd bruised it, but he denied be ating her head a nd fac e and r aping her. The defe ndant told Serg eant Allen in the second interview that he had been ha ving a n aff air with t h e v i ct i m . Serg eant Allen stated that the def endant wa s awa

re that serious alleg ations had bee n broug ht ag ainst him , but rape had not bee n specific ally mentioned. Serg eant Allen r emember ed that the victim told him she had era sed ab o u t fi fty calls off her c aller I D of whic h thirty

had bee n from the de fenda nt.

A de po sit ion take n fr om Jame s Ye a g e r wa s re a d in to e vid e nc e . M r. Ye a g e r w a s unava ila ble 2 during trial bec ause he was wor king in Iraq. V ia his deposition, Mr. Yeag er te stified that he had known the def

endant f or eig ht or nine y ear s and they wer e both g un enthusiasts. At the time the ra pe alleg ations arose , Mr. Yea g er was workingas a de puty at the B enton County

Sheriff’ s Depa

rtment and visited the def

endant while he was in ja il to try and calm him down. Mr. Yea g er next saw the defe ndant at h i s bond hear ing. Mr . Yea g er voluntee red to take possession of the def endant’ s numerous fire arms until the case was re solved to ensure they wer e not da

mag ed. After the def

endant

was re lease d from jail, Mr. Ye ag er ta lked with him by telephone. Du ri n g the conve rsation, the defe ndant mentioned that he ha d hear d that the g uns found in his car w ere g oing to be t es t ed for DN A e vid e nc e . T he de fe nd a nt t old Mr . Y e a g e r t

hat

he did n’ t kn owho w i t w ou ld b e po ssi ble fo r t he re to b e any DNA on

a ny of tho se firea rms. We w ere particula

rly talking about the re volver, the Smith and Wesson .38

re vo lve r. An d he sa id that he ha d cle a ne d tha t g un tho ro ug hly

a nd fo r a bo ut a ha lf hour and that . . . the g un was immaculate, it was in pristine condition, and there was

no thi ngon

it.

On c ro ss- e xami natio n, Mr . Ye a g e r ag re e d tha t th e de fe nd a nt w a s a fa natic a bo ut c le a nin g his
g uns. Mr. Yea g er said that it was his understanding that someone in law enforce ment had told the defe ndant t hat the par

ticular Smith and Wesson .38 was the g un alleg ed to have been use d in the-9-

ra pe s. He st ate d tha t th e de fe nd a nt’ s c omm e nt m ig ht h a ve se e me d inno c uo us to s ome , b ut a s a police off icer , he fe lt the defe ndant’s comment “ might have been some thing.”

Dr. John Mo nette, a psychiatrist, testified for the def ense. D r. Monette testified that he

re vie we d th e vic tim ’s me dic a l r e c or ds fro m the h os pit a l in Jac ks on , th e Se xua l A ssa ult Ce nte r i n Me mph is, a nd

he r p a st p sy c hiatr ic re c or ds . A ft e r r e vie wi nga ll the do c ume nts , D r. Monett e

c on c lud e d th a t th e vic timis “ fr e qu e ntl y ps y c ho tic wi th s e ve re br e a ks wi th r e a lity

. . . . She ha d to be committed judicially

by the cour ts on a number of

occa sions in the past 14 y ear s. She’s also had to be put under c onservatorship.” Dr. Mone tte said that the victim ha s a medical c ondition called patholog ical lying wher e she makes up extraordinary stories that ca

n come a cross a s cre dible. The victim is also paranoid schizophrenic. The two hallmarks of pa ranoid schiz o p h re n i a ar e auditory hallucinations and de lusions.

Dr. Monette testified that the phy sician at the J ackson hospital noted injuries that we re not

no te d b y the Se xua l A ssa

ult Re so ur c e Ce nte r, a nd

the re we re inj ur ie s n ote d b y the Se xua l A ssa

ult Center that we re not noted by the J ackson phy sician. Dr. Mone tte surmised that based on the vic tim ’s me nta l c on dit ion it w a s me dic a lly

po ssi ble that she ma de up the a ssa ult s. Dr . M on e tte sa id that an e xamp le of the vic tim ’s patho log ic a l ly ing wa s her lying a bo ut a ca r be ing sto le n, wh e n in
actua lity her daug hter wre cked it. The rec ords ref lected that the lie about the ca r happe ned af

ter the

ra pe a lle g a tio ns

. Dr . Mon e tte no te d tha t the vic tim ’s le ft e y e in the vid e o lo ok e d n or ma l and sa id that it should not have looked normal if the de fenda nt had “slappe d her a s hard a s he could in her left ey e.” T he rig ht ey e had a very slight y ellow discoloration mea ning it wa s a very old injury . The victim also has a history

of labe ling pe ople in her life as abusive.

On cr oss-examination, Dr. Monette admit t ed t h at he had ne ver tre ated the vic tim and had b a s e d h i s o p i n i o n

s o l e l y o n h i s r e v i e w o f

h e r r e c o r d s a n d

t h e i n f o r m a t i o n c o n c e r

n i n g t h e c a s e

. In

re g a rd to w he the r a cu t on the vic tim ’s wr ist wa s re po rt e d b y the Jac ks on

ph y sic ian, Dr . M on e tte sa id that the phy sician did not mention a cut in his phy sical exam, but he admitted that there was mention of a c ut wrist by

a nurse . Dr. Monette a lso admitted that he was awa re that the vi ctim’s daug hter ha d ple d g uil ty

to d ome sti c a ssa

ult fo r “ be a tin g he r m oth e r f ro m he a d to toe ,” a nd

the re fo re , th e vic tim did not make u p t h at claim. Dr. Mone tte ag ree d that the def endant, dur ing one of the tape d interviews, a dmitte d

to b it ing the victim’s brea st hard, “a ccide ntally ” pulling he r hair out, a nd cutting his hand with his knife, all of which w as consistent with the victim’s rec ollection.

The de fenda

nt testified that he and the victim ha d an af fair that lasted a little over thre e y ear s and involved only oral and dig ital contact due to his im potency . The de fenda nt denied eve r striking the victim in the fac e or sticking a g un in her mouth, vag ina, or anus. He did admit to having a “r un in” with Mr. Short beca

use Mr. Short t ried to ag g ravate hi m. The defenda nt said that he deve loped

a loving relationship wit h the victim and tried to help he r. He denied putting a knife to her throat and thre atening to slit it and said that he a ctually cut his hand trying to open a ca ke pac kag e. The defe ndant stated that the vic tim got cotton balls and c leane d up his cut, and she did so on her own beca use she sa w that his hand wa s bleeding

.-10-

The de fenda

nt stated that the vi ctim invited him to her house Fr iday night, May 30th, to have

so me wi ne wi th h e r. Whil e dr ink ingthe wi ne , th e de fe nd a nt t old the vi c timthat he wa s g oin g to have to b re a k o ff

the ir re la tio ns hip be c a

us e he tho ug ht h is wife wa s g e tti ngsu sp ic iou s a nd he did not think he could help her any more. The victim was upset a nd asked w hy

he wa s abandoningher, but she wante d to ha

ve sex one last tim e. Dur ing the ir enc ounter, the de fenda nt bit on the victim’s br e a sts a nd

sh e ins ist e d that he bit e ha rd e r. He sa id t

hat he pr ob a

bly bit ha rd e no ug h to make bit e marks on one br east. When aske d about the wa d of the victim’s hair that wa s pulled out, the defe ndant explained that they wer e lying tog ether

on the bed and when the victim went to g et up, her he a d w a s und e r h is ar

m. Ho we ve r, he sa id that only fo ur or fi ve str a nd s of he r ha ir we re pu lle d o ut. Th e de fe nd a nt s ta te d th a t th e y did no t ha ve a fi g ht o ve r a c ig a re tte . H e sp e c ulate d th a t th e vic tim might have bruised her

arms whe n she pul led away from him while they

wer e cuddling to go to the bathroom. The de fenda

nt did not leave a knif

e at the vi ct i m ’s h ouse. He did not know how the victim’s DNA g ot on his g un, but he said that he picke d up his gun a nd put it in hi s pocket whe n he
g ot dressed a fter the ir sexual encounter

.

The de fenda

nt testified that he was kept in the Be nton County J ail for thre e day s and wa s not allowed to ca ll any one, talk to an attorney , nor wa s he told what he was char g ed with. The def endant said that Serg eant Allen asked about a scr atch on the vic tim and that was why he thoug ht she might have ma de a r ape a ccusation. The d ef en d an t s ai d that he neve r threatened to ruin the vic tim’s divorce . He did not tell the police about the aff air initially beca

use he was ashame d. On the sec ond interview, he decide d he wa nted to come c lean a

nd reve aled the a ffa ir. The de fenda nt noted that the victim had seen his g uns many times and knew he carrie d one. When asked about his conversation with J ames Ye ag er reg arding his gun, the defe ndant explained that he had told Mr. Ye ag er that he had cle aned his g un for purposes of routine maintenanc e. The defenda nt stated t hat he wa s a police office r in Philadelphia for e ight y ear s prior to moving to Te nnessee

.

On cr oss-examination, the defenda nt acknowl e d g e d

th a t h e was a war e of most of the vic tim’s past mental health issues and assumed that she was takingmedications. The de fenda nt said that he

never worke d at the Camden Pol ice Depar tment but that he wor

ked for the sherif f’s de partment, a s

a dispatcher
, jailer, and rese rve office r with a deputy car d. He knew the majority of the off icer s at both depar

tments. W hen aske d why he told the offic er he did not rape the victim, even thoug h rape ha d n e ve r b e e n me nti on e d, he re sp on de d th a t he wa s a sk e d “ ho w s he g ot s c ra tc he d o n h e r a

nu s” so he a ssu me d th e y we re ta lki nga

bo ut a se x off

e ns e . T he de fe nd a nt a dmi tte d th a t du ri ngthe fi rs t interview, he told Serg eant Allen that he had cut his hand shar pening a knife even thoug h there was

no thi ngwr on g wi th usi ng a kn if e to ope n a ce llo ph a ne sn a c k wr a pp e r. He sa id t

hat he c uts him se lf

so fre quently when he shar pens knives that he f

org ot that particular

cut came from a

snack w rappe r. I n response to h i s s t at ement on dire ct examination that he was not allowe d to talk to an attorney wh ile he wa s in

ja il, the de fe nd a nt ad

mit te d tha t his att or

ne y fo un d out he wa s in jail a nd vis ite d h im. The de fenda

nt acknowle dg ed that he told Serg eant Allen that he “f inge red [the victim] hard up the

a ss b e c a us e sh e wa s p iss ing[him ] of f. ” Th e de fe nd a nt a lso a c kn ow le dg e d t hat he nev e r t old Serg eant Allen that he had broken up with the victim and that might have been w hy she broug ht the

a l l e g a t i o n s

. T h e d e f

e n d a n t a d m i t t e d t h a t s e v e r a l h o u r s p a s s e d b e t w e e n h i s s e xu a l e n c ou nte r w ith the victim and when he picked his g un up to ge t dressed a nd leave

.-11-

Carol B rzezowski, the defenda nt’s wife, te stified that she wa s suspicious of the amount of time the defe ndant spent with the victim, but once she sta rt ed t ak i n g an anti-de pressa nt her

su sp ic ion s su

bs ide d. Mr s. B rze zow sk i sa id t hat sh e did

qu e sti on the de fe nd a nt a

bo ut h is tim e wi th the victim beca

use she wa s conce rned that the victim wa s mentally unstable. She bec ame a

war e of the af fair on the day

of the de fenda

nt’s arr aig nment.

Dr . D on a ld G old , a

ps y c hiatr ist , tes tif

ie d in re bu tta l for the state

. Dr . G old state d th a t he is the vi ctim’s psy chiatrist and has been treating her si nce Febr uary 2003. During the time that he has be e n tr e a tin g he r, the vic timha s n ot b e e n h os pit a lize d d ue to h e r m e nta l c on dit ion s. Dr . G old sa id that, by the definitions he is a war e of, the victim does not meet the c riteria f or beingdiag nosed as a patholog ical liar. He stated that there is no formal diag nosis of patholog ical liar in the “ diag nostics of the Ame rica

n Psy chiatric Association,” a nd the victim does not meet the de finition o f p atholog ical liar found in medica l literature

. Dr. Gold testified that he does not re call see ing the term patholog ical liar in any of the victim’s psy chiatric rec ords. I n looking at the victim’s past treatment rec ords, Dr. Gold deter

mined that the victi m h ad b een g iven an incor rec t diag nosis and had bee n rec eiving

me dic a tio ns that w e re ina

pp ro pr ia te fo r h e r p ro ble m. D r

. G old pr e sc ri be d Pr oli xin, a

n a nti -p sy c ho tic

me dic a tio n, and the v ic timwa s c omp lia nt i n ta kin g the me dic a tio n. Th e vic timc a lle d D r. Go ld shortly afte r the ra

pe, and she seeme d distraug ht and upset but totally coher ent.

On cross-e x amination, Dr. Gold admitted that he treated the victim in October 2003 a nd she related that she ha d lied about her daug hter’s c ar b ei n g stolen when it had a ctually been w rec ked. Dr . G old re c a lle d tha t the vic tim tol d the lie be c a us e he r da ug hte r ha d pre ssu

re d he r t o li e . D r. Go ld
state d th a t in

May 20 03 , h e wa s a sk e d to e xami ne th e vi cti m to de te rm ine he r c omp e te nc y in

connec tion with her divorce proce eding s. Dr. Gold sai d t h at he had a copy of the letter

from the lawy er r equesting the examinati o n , an d a h andwr itten draft of the letter he sent bac k in response. Dr . G old a dmi tte d th a t hi s Ma

y 6, 20 03 , le tte r t o the lawy e r s a id t hat th e vic tim“ sti ll m a nif e sts residual de ficits in her a

bility to function and a

pp ear s to be very

fra g ile to stress.” He ag ree d that the victim’s condition was sever e if not properly medicate d and mana g ed and that she had a g reat deal of fea r of be ing a

bandoned.

Upon the conc lusion of the proof, the j ury found the de fenda nt guilty as cha rg ed to all five
counts. After a sentenc ing hear ing, the defe ndant was se ntence d to an ef fec tive term of twe nty -two y ear s serve d at 100%.

AN AL YSI S

The de fenda

nt raises thre e issues on appea l. He cha lleng es the suff iciency of the c onvicting evidenc e, the de nial of a ne w trial, and the sentenc ing de cision of the trial c ourt.

Suf fi ciency-12-

The de fenda

nt challeng es t he sufficiency of t he convicting evidence

. Specifica lly , he ar g ues that “[g]iven the alleg ed victim[’] s patholog ical ly ing and t he unre liability of the phy sical evide nce,

rea sonable doubt ce rtainly exis ts.”

We beg in our revie w by

reiter ating the well-e stablished rule that once a jury finds a def

endant
g uil ty , h is o r h e r p re su mpt ion of inn oc e nc e is r e mov e d a

nd rep la c e d w itha

pr e su mpt ion

of g uil t. State v. Ev ans , 838 S.W .2d 185, 191 (Tenn. 1992) . There fore , on appea l, the convicted de fenda nt ha s th e burd e n o f d e mon str a tin g to t his c ourt wh y the e vid e nc e wi ll n ot s up po rt the jur y ’s ve rd ic t. Sta te v. C ar ru th e rs , 3 5 S. W.3 d 5 16 , 5 57 -5 8 ( Te nn . 2 00 0) ; Sta te v . Tu gg le , 639 S.W .2d 913, 914 (T e nn . 1 98 2) . T o me e t th is b ur de n, the de fe nd a nt m us t e sta bli sh that no “ ratio na l tr ie r o f f a c t” c ou ld have f ound the essential elements of the crime bey ond a reasonable doubt. J ac k so n v . V irg ini a , 443 U. S. 3 07 , 3 19 (1 97 9) ; State v. Ev ans , 1 08 S.W. 3d 23 1, 23 6 ( Te nn . 2 00 3) ; see Tenn. R. App. P. 13(e)

. I n contra st, the jury ’s verdict approve d by the t rial j udg e accr edits the state’s witnesse s and re solves

a ll c o n f li c ts in f a v o r o f th e state. St atev . H arris , 8 39 S.W. 2d

54 , 7 5 ( Te nn . 1 99 2) . T he state is entitled to the strong est leg itimate view of the evidenc e and a ll reasona ble infer ence s which may be draw n from that evide nce. Car ru the rs , 35 S.W .3d at 558. Questions conce rningthe cr edibility of the wi tne sse s, con fl ict s in tria l te sti mony , th e we ig ht a nd va lue to b e g ive n th e e vid e nc e , a nd a ll fac tual issues raised by

the evidenc e ar e re solved by the trier of

fac t an d n o t t h i s court. State v. B land
, 9 5 8 S. W. 2 d

6 5 1
, 6 5 9 ( T e n n

. 1 9 9 7 )

. We d o n o t a tt e mp t t o r e

- w e ig h o r

r e

- e v a lu a te the evidenc e. Rice
, 184 S.W .3d at 662. L ikewise, we do not replac e the jury ’s infer ence s drawn f rom the circ umstantial evidence with our own infer ence s. Sta te v . R e id
, 91 S.W .3d 247, 2 7 7 (T en n. 2002). These rules ar e applica ble to finding s of g uilt predicate d upon direc t evidence , circ umstantial evidenc e, or a combination of both dir ect and circ u m s t an t i al evidence. Sta te v . P e nd e rg ra ss , 13 S.W .3d 389, 392-93 (Te nn. Crim. App. 1999).

Ag g ravated ra

pe is the “unla

wful sexual penetration of a victim by th e d ef en d an t or the de fe nd a nt b y

a vic tim [wh e n] [ f]o rc e or c oe rc ion is use d to a c c omp lis h th e a c t and the de fe nd a nt i s

a rm e d w itha

we a po n o r a ny a rt ic le us e d or fa sh ion e d in a man ne r to lea d the vic timre a so na bly to believe it to be a

wea pon[.] ” Te nn. Co d e Ann. § 39- 13-502(a )(1) . “‘Sexual penetration’” mea ns sexual interc ourse, cunnilingus, fellatio, anal inter course , or any other intrusion, howeve r slight, of
any part of a person’ s body

or of a ny object into the g enital or a nal opening s of t h e victim’s, the defe ndant’s, or a

ny other pe rson’s body , but emission of s em en i s n o t require d[.] ” Id. § 39-1 3

- 5 0 1 ( 7 )

. A n a s s a

u lt is c o mm itte d

w h e n a n in d iv id

u a l “ [i ]n te n ti o n a ll y

o r kn o w in g ly

cause s

a no the r t o r e a so na

bly fe a r i mmi ne nt bod ily inj ur y .” Te nn . Code Ann. § 39- 13 -1 01 (a )( 1) . An a ssa ult is e le vate d to a g g ra

vate d a ssa

ult if the a ssa ult is co mmi tte d inte nti on a lly or kn ow ing ly

a nd a de a dly

wea pon is display ed or use d. Id. § 39-13-102( a)( 1)(B ).

As not ed ab o v e, the defenda nt challeng es the ve rac ity of the victim’s testimony and the

re lia bil ity of the ph y sic a l e vid e nc e

. The de fe nd a nt a rgue s th a t th e vic tim ’s ve rs ion of the e ve nts la c ks c re dib ili ty

be c a us e sh e is a “ patho log ic a l liar .” Ho we ve r, qu e sti on s c on c e rn ingthe c re dib ili ty of a w itness and the we ight a nd value of

the evidenc e prese nted at trial wer e resolved by the jury as the tr ie r o f f

a c t. B y its ve rd ic t, t

he jur y a c c re dit e d th e vic tim ’s re c oll e c tio n o f the e ve nts

. Th e vic tim testified that the def

endant inser

ted a .38 r evolver

into her vag ina and a

nus while threatening to shoot-13-

her. The def

endant a lso force d the victim to perfor m fellatio while bra

ndishing the .38 r evolver . The victim’s testimony

was c orrobor ated by

TBI Ag ent J ames who te st i fi ed t h at DNA found on the defe ndant’s Smith & Wesson .38 revolver matched the victim’s DNA.

As to the def

endant’ s ag g ravated assault convic tions, the victim t estified that the de fenda nt he ld a kn if e to h e r thr oat a nd thr e a te ne d to sli t it. Th e vic tim sa id that the de fe nd a nt c ut h is thu mb while hol d i n g t h e knife to her throat and g ot blood on the t-shirt she was we aring . Ag ain, DNA

a na ly sis of

the blo od sta in o n th e vic tim ’s sh ir t su pp or te d the vic tim ’s te sti mony . T he vic tima lso
te sti fi e d th a t th e de fe nd a nt p ut a gun in her mouth br uis inghe r l ips a nd

mouth a re a . D r. Cr a ig testified that the victim had abr asions on her lips and around her mouth. The victim further te stified that the def

endant r epeatedly

slapped he r ac ross t h e face, c hoked her , shoved her into a bathtub,

“ y a nk e d” ou t he r h a ir , a

nd bit he r br e a st. Th e de fe nd a nt a c kn ow le dg e d th at he bit the vic tim ’s br e a st and pulled out some of he r hair. Photogra phs and the videotape of the victim’s injuries show that the vic timha d br

uis e s on he r a rm s, bu tto c ks , b ite mark s o n h e r b re a st, a nd a n a br a sio n o n h e r w ri st. I n the light most favor able to the state, we conclude that the evidenc e wa s sufficient to support the defe ndant’s convic tions.

Motion for New Trial

Th e de fe nd a nt n e xt ar g ue s th a t th e tr ia l c ou rt e rr e d in fa ili ng to g ra

nt him a ne w tri a l du e to the insufficie ncy

of the c onvicting e vidence and because of t he st ate’ s failure to provide all of Dr

. Gold’s re cords, spe cifica lly exhibi t 41, which was a n assessment of t h e v i ct im by Dr. Gold that

occur red a fewwee ks prior to the alleg ations of ra pe in this case.

I nitially , we note that the def endant ha s waived this issue for f ailing to include the transc ript from the motion for ne w trial in the re cord on ap p ea l

. I t is the duty of the de fenda

nt to prepar e a

re c or d w hic h c on ve y s a

fa ir , a c c ur a te a nd

c omp le te a c c ount o f w hat tr a ns pir e d in the tr ia l c ourt wi th

re sp e c t to the iss ue s w hic h f or m th e ba sis of his a

pp e a l. Te nn

. R. Ap p. P. 2 4( b) ; State v. Bunc h , 646 S

. W

. 2 d 1 5 8
, 1 6 0 (T en n

. 1 9 8 3 ). W h en t h e re co rd i s i n co mp l et e, o r do es n o t co n t ai n t h e p ro ce ed i n gs rele vant t o an is sue, t his court is prec luded from c onsidering the issue. State v. Hoppe r , 695 S.W .2d 530, 537 (Tenn. Crim. App. 1985)
, perm. app. de nied (Tenn. 1985)

.

Even if the defe ndant had not w aived the issue, the issue is w ithout mer it. First, as deter mined above, the evidenc e wa s sufficient to support the de fenda nt’s convictions. Second, a s

a d dr e s s e d b e l o w , t h e m i s s i n g p s yc h i a t r i c e v a l u a t i o n i s c u m u l a t i v e o f o t h e r e v i d e n c e

. A c c o r d i n g l y,

we c on c lud e the tr ia l c ourt did no t e rr in de nying the de fe nd a nt a ne w tri a l, a

nd he is n ot e nti tle d to relief

.

I n a motion for pre trial discover y , t h e d ef en d an t reque sted a c opy

of Dr. G old’s mental evaluation of the victim taken for the pur pose of de termining the victim’s competenc y to proce ed with her divorc e in Be nton County Chance ry Court. Appar ently
, a copy of t he evaluation was not included in the discovery materia ls sent to the defe nse. Duringcross-e x amination, the following exchang e occ urre d:-14-

[Defense Counsel] : [Y] ou said something just a mo m en t ago about compete ncy

in the divorce proce ss w as resolved. I t’s my rec ollection that she wa s order ed in May

of 2003 to be e x amin ed b y y o u for
purpose of deter

mination to the Chance ry Court w hether she

was c ompetent or not, wa s that done?

[Dr. Gold] : I don’t know that I was orde red, but I cer tainly was reque sted. Ihave a copy of the law y er[’]s letter.

[Defense Counsel] : Why was I not provided that, Dr. G old?

[Dr. Gold] : Idon’t know. I t’s part of he r re cord.

[Defense Counsel] : May Isee the letter?

[Dr. Gold] : You ce rtainly may . Ibroug ht the orig inal letter. . . .

[Defense Counsel] : Did y ou write him a letter back?

[D r

. G o ld ]: Ye s

. I h a v e th e h a n dw r itte n dr a f t w h ic h w a s late r ty

p e d up and sent. . . .

The defenda

nt was provide d a copy

of the e valuation and or der, a nd both were made pa

rt of the re cord. The defe ndant did not move for a continuance to have his ex pert, Dr . Monette, examine the documents.

After the trial, on Aug ust 19, 2005, Dr. Monette filed an aff idavit stating that he had n ot

rec eived Dr . Gold’s May

6, 2003, handwr itten letter “w hich was a n evaluation of

[t he victim and] would have be en ver

y pertinent to my

testimony

in this m atter a s it was the most rece nt examination of [the victim] in the time frame befor e the a lleg ations were made a g ainst [t he def endant].” Dr. Mo ne tte fu

rt he r state d in his a ff

ida vit that the “ [f]a ilure to have su c h a re c e nt le tte r or dia g no sis hamper ed my

ability to properly

prepa re and testify on [t he defenda nt’s] behalf as I had to rely on older re cords not nec essar ily related to the time.”

Upon re view, we note that contra ry to Dr. Monette’ s assertion, t h e “ mo s t r e c e n t e xamination” of the victim appe ars to have occur red on Ma

y 19, 2003, during an ap p o i n t m en t she had with Dr. Gold. Dr. Gold’s pr og ress notes, whic h included notes taken during the May 19th meeting , wer e par

t of the re cord a

nd wer e re viewed by

Dr. Monette pr ior to trial. Moreove r, the infor mation contained in D r

. G o ld ’ s M a y 6
, 2 0 0 3
, le tt e r w a s n o t n e w in f o r mati o n

. D r

. G o ld s tate d in h is le tt e r th a t the

v i ct i m h adre s p o n d ed we l l t o h er m ed i ca t i o n s an d t h at h o s p i t al i z at i o n wa s n o t n ec es s ary ev en t h o u gh the victim manifested r esidual def icits in her ability

to function and wa s fra g ile to stre ss. Dr. Gold’s
tr e a tme nt r e c or ds of

the vic tima re re ple te wi th not a tio ns re g a rd ingthe vic tim ’s de pr e ssi on , s tr e ss, and how she felt unpre pare d to be on her own ag ain.-15-

T h e d e f e n d a n t’ s r e li ance on State v. Collins , 3 5 S. W.3 d 5 82 (T e nn . Cr im. Ap p. 20 00 ), is misplaced. Col lin s involved a prose cutor’s r efusa l to disclose the identity o f a c o n f id ential informant i n defia nce of a cour t order, see id. at 585; wher eas in this case , the information soug ht by the de fe nd a nt w a s in

Dr . G old ’s po sse ssi on

a nd c on tr ol, no t th e state ’s . I t a pp ears th at Dr. Go ld inadve rt en tly

forg ot to send the letter a long w ith his ot her r ecor ds and the prose cutor wa s as unfa m i l i ar wi th the letter a s was def ense c ounsel. Also, in Colli ns , the def endant a lleg ed that the confide ntial informant could provide exculpatory testimony

which would contr adict the charg es ag ainst him, see id. at 583; whe re as in this case, Dr . Gold’s letter did not pre sent any new inf or ma tio n r e g a rd ingthe vic tim ’s me nta l st a te . In o ur vie w, the inf

or ma tion in the le tte r i s cumulative of D r. Monette’ s testimony that the victim had “se vere brea ks with reality ,” is very de pe nd a nt o n othe r pe op le to ca re fo r he r, a nd

is “ su ff e ri ngwi th v e ry

low a uto no my , v e ry

of te n w ith fea rs, par anoid fe ars.” Thus, the trial cour t did not err in deny

ing the defe ndant a ne w trial.

Se nt e nc ing

The de fenda

nt lastly ch al l en ges t he sente ncing decision of the tr ial court. Spec ifically , he
argues that the trial c ourt must have ex p l i ci t l y reje cted the June 7, 2005, sentenc ing a mendment beca use otherw ise he would have re ceive d the minimum s entenc e as “ [t ]here we re no e nhancing fac tors filed in the pre -sentenc e re port . . . , none filed by the prosec ution, nor any specific ally

found by the cour t as enha nceme nt fac tors.”

Appellate r eview of

a cha lleng ed sente n ce i s a de novo r eview of the re cord w ith a
pr e su mpt ion

tha t th e tr ia l c ourt ’s de te rm inatio ns a re c or re c t. T e nn . Co de Ann. § 4 0- 35 -4 01 (d ). Th is presumption of cor

rec tness is conditioned upon the aff irmative showing i n the re cord that the trial
court c onsidered the sentenc ing principles and all rele vant fa cts and c ircumstance s. State v. Pe ttus , 98 6 S. W

. 2 d 5 4 0
, 5 4 3

- 4 4 ( T e n n

. 1 9 9 9 )

. H o w e v e r , i f t h e r e c o r d s h o w s t h a t t h e t r i a l c o u rt f a i l e d to consider the sent en cing principles and a ll releva nt fac ts and circ umstances, then r eview of the challeng ed sentence is purely de novo without the presumption of corre ctness. State v. Ashby , 823 S.W .2d 166, 169 (Tenn. 1991) . On appe al
, t h e d ef endant has the burden of showing that the
sentenc e imposed by

the trial court is im proper . Tenn. Code Ann. § 40- 35-401, Sentenc ing Com mis sio n Co mme nts

.

I n conducting our de novo r eview, this cour t must consider (1) the evidenc e rece ived at the

se nte nc inghe a ri ng ; ( 2) the pr e -s e nte nc e re po rt ; (3 ) the pr inc ipl e s o f s e nte nc ing ; ( 4) the a rgume nts of counse l relative to sente ncing alt ernatives; (5) the nature a nd char acte ristics of the cr iminal conduct involved; (6) any applicable mitigating or enhanc ement fac tors; ( 7) any statements made by the def endant in his or her

own beha lf; and (8) the def endant’ s potential o r l ac k o f potential for

re ha bil itatio n or tr e a tme nt. Te nn . Co de Ann. §§ 40 -3 5- 10 3, -2 10 ; Sta te v . I mf e ld , 70 S.W .3d 698, 704 (Tenn. 2002)

. As a Rang e I

offe nder, the defe ndant’s C lass A felony ag g ravated ra

pe convic tions subjected him to a sentence rang ing f rom fiftee n to twenty -five y ear s. See Te nn . Co de Ann. § 3 9- 13 -5 02 ; §It d o es n o t ap p ea r t ha t t he d efen d an t ac t ua l l y exe cu t ed a w rit t en wa i ve r o f his ex p o st f

ac t o p ro t ec t i o ns; 3

howev er , i t i s ev i dent f

r om hi s ar gu ment at s ent enc i ng and on appeal t hat he wi s hed t o be s ent enc ed un der t he amended la w

.
-16- 40 -3 5- 11 2( a )( 1)

. Th e de fe nd a nt’ s Clas s C fe lony a g g ra vate d ass a

ult c on vic tio ns su

bje c te d h im t o a sente nce r ang ing f

rom three to six y ear s. See Tenn. Code Ann. § 39- 13-102; § 40-35-112( a)( 3). I t appea rs t h at t h e trial court and def ense c ounsel verba lly

ag ree d that the def

endant would be
sente n c e d u n d e r th e 2 0 0 5 a me n d me n t t o T e n n e s s e e Co d e A n n o tate d s e c ti o n 4 0

- 3 5

- 2 1 0
, which abolished t he mi dpoint of a rang e as the presumptive minimum sentenc e for a C lass A felony

. See Te nn . Co de Ann. § 4 0- 35 -2 10 , Co mpi le r’ s N ote s. 3

I n s e nte nc ingthe de fe nd a nt, the c ourt state d a s f

oll ow s:

This Court has considered severa l matters in arr iving at what it fee ls to be an
appropr iate sente nce in this c ase. One, I have considere d the number of instances of exceptional crue lty

that the victim was for ced to submit to.

Two, I ’m of the opinio n t h at t h is man took advantag e of his prior police experience and his then re lationship with l aw e nfo rc ement to g ain the victim’s

c on fi de nc e a nd

e xer c ise d a

n[] un c omm on

de g re e of c on tr ol.

Three , I ’ve c onsidered the differ ence s in the defe ndant and th e victim’s mental stability . Ithink the proof wa s more than c lear that the victim was
p a rt i c u l a r l y v u l n e r a

b l e b e c a u s e o f h e r m e n t a l i n s t a

b i l i t y i f n o ta m e n t a l d i s a

b i l i t y.

F our, I ’v e c on sid e re d the us e of a we a po n. An d I ’m

we ll a wa re that th e us e

o f a w e a p o n i s a n e l e m e n to f

b o t h a g g r a v a t e d

r a p e a n d a g g r a v a t e d

[a s s a u lt ]. Howeve r, that statute is draw n in such a manner as to make the use of a wea pon an element whe n it’s used to acc omplish t he crime. I n this inst ance it was used as a tool in two of the three instances of ag g ravated ra

pe.

Five, I ’m of the opinion that t here wer e inj uries experienc ed by the victim of both a phy sical and a

mental nature

.

Th e t r i a l c o u rt t h e n s e n t e n c e d t h e d e f e n d a n t t o f

i v e y e a r s o n e a c h a g g r a v a te d a ssault conviction and twe nty -two y ear s on eac h ag g ravated ra pe convic tion and order ed that the sentenc es b e s e r v e d c o n c u r r e n t l y.

Ag ain, the def

endant a rg ues that bec ause “ [t ]here we re no e nhancingfac tors filed in the pre

sentenc e r e p o rt

. . . , n o n e f il e d b y th e p r o s e c u ti o n , n o r a n y s p e c if ic a ll y f o u n d b y th e court a s

e n h a n c e me n t f

a c to r s , ” h e w a s e n ti tl e d

to th e mi n im

u m s e n te n c e

. We f

ir s t n o te th a t t

h e s tate’s decision not to file a notice to se ek an en hance d sentenc e does not pre clude the tr ial court fr om consideringenhanc ement fa ctors in deter mining the defe ndant’s sente nce. O ur supre me cour t has-17-

held that a tria l court re tains its discre tion to conside r applica ble enha nceme nt and mitigating fac tors

so long as the de fenda

nt’s sentenc e is not enhanc ed beyond the statutory maxi mum. See G raham

v . S tat e , 9 0 S. W.3 d 6 87 , 6 92 (T e nn . 2 00 2) ; se e als o S tat e v . R ay mo nd O. L on g, J r. , No. M2005-0 2 9 6 0

- CC A

- R3

- CD
, 2 0 0 7 WL 5 5 1 3 0 6
, at * 1 4 ( T e n n

. Cr im

. A p p

. , a t N a s h v il le
, F e b . 23, 2007) (noting that the t rial court is not bound by the enhanceme nt fac tors prese nted by the state a nd
may ap p l y

any fac tor that is supported by the evidenc e at the tr ial, the sentenc ing he aring , or the
pre- sentenc e repor

t). Acc ording ly , the trial cour t was fr ee to e nhance the def endant’ s sentence based on the pre sence of any

fac tor supported by

the evidenc e.

The r e c o r d a ls o r e f

le c ts , c o n tr a r

y to th e d e f

e n d a n t’ s a s s e rti o n , th a t th e tr ia l c ourt found enhanc ement fa ctors eve n though it did not ref er t o t h e factors by

statute section number

. Specifica lly , the trial cour t determined that t h e v i ctim was treated with exceptional crue lty , the de fe nd a nt u se d h is r e la tio ns hip wi th l a w e nf or c e me nt to g a in the vic tim ’s c on fi de nc e a nd e xer c ise an uncommon deg ree of control over her, the victim was particula rly vulnera ble due to her

mental instabilit y , a we apon wa s used as a “tool in two of the three instances of ag g ravated ra

pe,” a nd there

wer e phy sical and mental injuries suffe red by the victim. Whil e there are fac ts in the rec ord t hat support the application of some of these fac tors, our revie w is hinde red, fore most, be cause the trial
court did not addre ss w hich enhanc ement fac tors applied to which c onviction. For e x ample, the f act of “e x ceptional c ruelty ” may apply to the defe ndant’s ag g ravated ra pe co n victions, but may

be inapplicable to the defe ndant’s ag g ravated assault convic tions. Also, som e of the fac tors mentioned by the trial court may not be applicable beca use they are inhere nt in the offe nses. “[I ]t is incumbent upon the trial cour

t to specify which enhance ment fac tors apply to eac h sentenc e, and a failure to do so will often result in a re mand.” State v. Crystal Antonette Delane y , No. W2005-01459-CCA-R3-CD, 2006 WL 1215141, at *3 (Te nn . Crim. App., at J ackson, Ma y 5, 2006).

Our r e vie w i s a lso hin de re d b e c a us e the tr ia l c ourt

fa ile d t o st ate th e pr oc e ss b y wh ic h it

arr ived at the se ntence s, i.e. , what sente nce it starte d at, what f acts it relie d on in enhanc ement or mitigation, and how it we ighe d and eva luated the f actor s. Se e Stat e v. P oo le , 945 S.W .2d 93, 96 ( T en n

. 1 9 9 7 ) ( ci t i n g State v. Jone s , 8 83 S.W. 2d

59 7, 60 1 ( Te nn . 1 99 4) ); s e e a l s o S t a t e v . D on ald Luke Seibe r , No. E2004-01794- CCA-R3-CD, 20 0 5 WL 2756055, at *14 (Te nn. Crim. App., at Kn o x v i l l e, Oc t

. 2 5
, 2 0 0 5 ). Ac co rd i n gl y , we ar e co n s t ra i n ed t o re m an d t h e ca s e f o r r e- s en t en ci n g. On re mand, the trial c ourt should specifica lly articulate which enhanc ement factors it finds, which fa c ts i t r e lie s u

po n in su pp or t of e a c h e nh a nc e me nt f

a c tor , w he the r i t f

ind s a ny mit ig a tin g fa c tor s, which fa ctors apply

to which convictions, and howeac h fac tor is weig hed and evaluated in arr iving at the sente nces. Also on rema nd, the t rial court should ensure that the defe ndant prope rly executes

a wa iver of his e x post facto pr otections if he wishe s to be sentenc ed under the amende d sentenc ing
statutes. See Te nn . Co de Ann. § 4 0- 35 -2 10 , Co mpi le r’ s N ote s; see also State v. Timothy R. Bouton
, No. E2005-02294- CCA-R3-CD, 2006 WL 2373471, at *2 (Te nn. Crim. App., at Knoxvi lle, J une 27, 2006) (r emanding for re-se ntencing under the old law or for proper ex ecution of a waiver of e x post facto pr otections).

CO NC LU SION-18-

Ba sed on the for eg oing, w e af firm the def

endant’ s convictions but re m an d fo r a new sentenc ing he aring

.

___________________________________ J .C. McL I

N, J UDGE