# FILED

June 6, 1997 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE DECEMBER 1996 SESSION

STATE OF TENNESSEE, ) NO. 01C01-9511-CC-00390 ) Appellee ) RUTHERFOR D COUNTY ) V. ) HON. J.S. DANIEL, JUD GE ) ELDRED REID ) (Rape and Sent encing) ) Appellant ) )

FOR THE APPELLANT FOR THE APPELLEE Gerald L. Melton John Knox Walkup District Public Defender Attorney General and Repor ter 201 W. Main Street, Suite 101 450 James Robertson Parkwa y Murfreesboro, Tennessee 37130 Nashville, Tennessee 37243-0493 Jeannie A. Kaess Janis L. Turner Assistant Public Defender Assistant Attorney Gener al 201 W. Main Street, Suite 101 450 James Robertson Parkwa y Murfreesboro, Tennessee 37130 Nashville, Tennessee 37243-0493 Russell N. Perkins William C. W hitesell, Jr. Assistant Public Defender District Attorney General 201 W. Main Street, Suite 101 303 Rutherfo rd County Judicial B ldg. Murfreesboro, Tennessee 37130 Murfreesboro, Tennessee 37130 Dale T. Robinson Assistant District A

ttorney General 303 Rutherfo rd County Judicial B ldg. Murfreesboro, Tennessee 37130

OPINION FILED:______

AFFIRMED

William M. Barker, Judge1 Although t he victi m of the rape was not a minor , we have nevert heless chosen to r efer to her

by her in itials o nly. 2 Opinion The Appellant, Eldreid Reid, appeals as of right his conv iction and sentence for one count of rape. He argues on appeal: (1) The trial court erred when it permitted the State to introduce evidence that Dorey H orton’s daughter had charg ed her with assault. (2) The trial court erred in refusing to permit him to elicit certain testimony from Dorey Hor ton and in not allowing

him to make an offer of proof re garding th at testim ony. (3) The trial court erred w hen it prohibited him from intr oducing testimony that the first g rand jury which c onsidered the case returned a no true bill. (4) His sentence is exces sive. We have reviewed the record pres ented in this appeal and find no rev ersible error. Accordingly, w

e affirm the Appellant’s convic tion and sentence. Factual Background On the afternoon of June 13, 1991 , B.C. 1 went to visit hersister and brother-inlaw, Donna and Butch King , in their apartment in Smyrna, Tennessee. The three of them were planning to g o to the Veterans of Foreign Wars (V.F.W.) Club later that evening to celebrate their impending move to Florida. After a short visit, B.C. continued to her own apartment,where she cleaned up and changed clothes. When she returned to the Kings’ apartment, the Appellant was there and Butch King introduced B.C. to the Appellant. At that point, B.C . did not know the Appellant but knew of him as he was dating Dorey Horton, her son’s girlfriend’ s mother and one of Donna King’s best friends. Butch King told the Appellant that they were all going to the V.F.W. Club for

a few drink

s and invited him to joi n them. B.C. and the Kings arri ved at the V.F.W. Club around 7:00 p.m. They ordered drinks and sat down at a t able. Approximately an hour and a half later, the Appell ant joined th em. Arou nd nine o ’clock, Do nna King d ecided th at she wan ted to lea ve3

because she had to go to work early the following morning. B.C., who had just ordered her third drink,wanted to stay a lit tle longer and finish that dr ink. Hearing that B.C. was not ready t

o leave, the Appellant offered to st ay with her for a w

hile and then take her back to her car at the Kings’ apartment. B.C. accepted the Appellant’s offer, but before letting the Kings leave the V.F.W. Club, she walked with them to the parking lot where she asked bot h of them if it would be safe for her to r ide with the Appellant. Since the Kings had know n the Appellant for some time, they both responded that it would be all right. B.C. went back inside a nd sat down with the Appe llant and they started tal king about problems she and Dorey Horton were having as a result of their chil dren dating each other. They remained at the Club for another thirty mi nutes before leaving in the Appellant’s car. Upon leaving the V.F.W. Club, the Appellant headed towards the Kings’ apartment, but shortly thereafter, he turned onto Old Nashville Highway telling B.C. that he was taking a l onger route because he wanted to continue talking about the problems she and Dorey Ho rton were having with their childre n. When the Appellant came to Sam Ridley Parkw ay, he turned into an industr ial area unfamiliar to B.C. When B.C. asked him where he was goi ng, he responded that he was only going to turn the car around. When the Appellant kept on dr iving farther into the industrial area, B.C. started protesting and asked him to take her back to her car at the Kin gs’ apartment. Ignoring B.C .’s request, the Appellant continued farther into the indust rial area, and after a few more minutes, h e reached a secluded area w here he stopped the car and parked it. The Appellant started kissing and fondling B.C., and then he lea ned over her and opened the car’s passenger door. He crawled over her and turned her around so that her legs hung out thr ough the passenger side door and her head rested in the driver’s seat. B.C . yelled and screamed at the Appellant in an attempt to get hi m to stop, but her resistance had no effect. Inste ad, the Appellant told her that they were4

going “to have some fun.” Somehow, the Appellant managed to take off B.C.’s pants and panties. B.C. pushed, punched, and scratched the Appellant to g et him to stop, but he held her down by pushing her shoulder against the seat, climbed on top of her, and penetrated her vaginally. The Appellant continued the sexual intercourse until B.C. started yelling

that she could not breathe. Shortly after the intercourse, the Appellant took B.C. to her car at the Kings’ apartment. When B.C. got into her car, her youngest son, who w

as staying with the Kings, came out to see her. At that point, the evening’s events caught up with B.C. and she started crying. On her way home, B.C. and her son stopped by the Hardee’s in Smyrna, where B.C . told her cousin, Cathy Keith, that she had been raped. When B.C. arrived home, she decided that she should go to a rape crisis center and contact the police. When B.C arrived at the police statio n, Detective Laura Williams took her to the Emergency Room for a medical examination and a rape kit.Following the examination, Detective Williams brought B.C. back to th e police station, where B.C. gave a statement regarding what had happened that night. Before leaving, B.C. inquired of Detective Williams w hether she should take out a w arrant against the Appellant, but Detective Williams advised her to wait unt il the police could inv estigate the rape further. The following day, B.C . went to visit the Kings in their apartment. While she was there, Dorey H orton called to talk to Don na King, but she also talke d to B.C. During that convers

ation, Horton told B.C. that she didn’t believe that s he had been raped, but if that were the ca se, B.C. certainly des

erved anything that h ad happened to her. This caused B.C., w ho was already upset fro m having been raped, to los e her temper and she ran over to H orton’s apartment in an attempt to physically confront her. In her attempt to get i nto Horton’s apartment, B.C. damaged Horton’s door. A few days later, Hor

ton took out a warrant ag ainst B.C. charging her with vandalism. B.C. pled g uilty to the charge and paid restitution. Duri ng the following5

weeks, Horton also took out warrants against members of B.C.’s family. The first warrant alleged that B.C.’s son had vandaliz ed Horton’s car, and after a hear ing, he was ordered to pay $60.0 0 in restitution. The second w arrant, which was

dismissed, alleged that B.C.’s oldest son had committed assault against Dorey Horton’s youngest daughter. At some later poi nt in time, Dorey Hor ton took out a warrant ag ainst Donna King charging her with making harassing phone calls. The Appellant was first tried and found guilty of rape in March of 19 92, but this Court reversed his c

onviction in State v. Reid , 882 S.W.2d 423 (Tenn. Crim. App. 1994). The Appellant was tr ied a second time, and again, a jury of his peers conv icted him of rape. After a sentencing hear ing, the trial court s

entenced the Appellant to nine years imprisonment in the Tennessee Department of Correction. I The Appellant first contends that the trial court erred w

hen it permitted the State to introduce evidence that Dorey Horton’s daug hter had charged her wi th assault. This issue is without merit. Over the objection of the Appel lant’s counsel, the trial court permitted the State, on cross-examination of Dor ey Horton, to show th at Horton’s daughter, Jenn ifer, took out an assault warrant against her mother two day s before the rape occurred. The Appellant argues that the admis sion of the assault warrant against Horton, his k ey witness, u nduly prej udiced h im by dama ging her cre dibility. Horton’s t estimon y, according to the Appellant,was intended to prove that B.C. fabricated the rape charges to get Horton to drop certain juvenil e charges against her oldest son and to extort money from the Appella nt. The State argues that the evidence of the assault warrant was admissible pursuant to Tennessee Rule of Evidence, Rule 608(b), which provides that a witness’ specific instances of conduct can be introduced if probative of that witness’ truthfulness or untruthfulness. Id . The rule also provides that the trial court, if requested, must hold a hearin g outside the jury’s presence where it must “ determine6

that the alleged conduct has pr obative value and that a r easonable basis exists for the inquiry.” Tenn. R. Evid. 608(b)(1). Here, the trial court made no findings on the record that evidence of the assault warrant was probati

ve of Horton’s truthfulness.The trial court did conduct a brief hearing outside the jury ’s presence, but failed to make any findings on the record that a reasonable factual basis existed for the inquiry or that the alleged conduct’s probative value outw

eighed its prejudicial

effect on the Appellant. We f ail to see that the assault wa rrant, ta ken out a gainst Dor ey Horton t wo days before the rape occurred, had any probative value of any issue in the Appellant’s rape trial. The assault w arrant was irrelev

ant evidence. See Tenn. R. Evid. 608(b); Tenn. R. Evid. 402; State v. Brewer , 932 S.W.2d 1, 22 (Tenn. Crim. App. 1996). Accordingly, we find that the trial court’s admission of testimony regarding the assault warrant against Dor

ey Horton was in er

ror and should have been ex cluded. However, after consi dering the entire recor d in this case, we are satisfied that this error was har

mless. See Tenn. R. App. P. 36(b); Tenn. R. C rim. P. 52(a); see also State v. Gaylor , 862 S.W.2d 546 (Tenn. Crim. App. 1992). “No j udgment of conviction will

be reversed on appeal ex cept for errors which affirmatively appear to have affected the result of the trial on the merits.” Tenn. R. Cr im. P. 52(a). Given the totality of the convicting evidence, it is clear to this Court that the improperly admitted evidence did not affect the result of this trial. Accordi ngly, we find that the Appellant has suffered no prejudice and that the error was harmless.7 II The Appellant next contends that the trial court erred in refusin g to permit him to elicit certain testi mony from Dorey Horton and in not allowing him t o make an offer of proof regarding that testi mony. This issue is w ithout merit. During the Appellant’s direct examination of Dorey Horton, she was asked ho w the event in which the rape warrant was t aken out had affected her personally . The State objected to the question on relevance grounds. Appellant’s counsel responded that it was relevant to show that Horton felt r esponsible for the rape war rant having been taken out. Horton apparently believed that B.C. took out the rape warrant against the Appellant to get even with her for the warrants she had taken out against B.C. and her family. The tri al court sustained the State’ s objection. The trial court has wi de discretion in determini ng whether evidence is relevant and its decision to admit or to exclude evidence will not be reversed unless arbitrarily exercised. State v. Davies , 872 S.W.2d 950, 955 (Tenn. Crim. App. 1993). “‘ Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of th e action more probable or less probable than it would be without the evidence.” Tenn. R. Evid. 401. “All relevant evidence is admissible . . . [but e]v idence which is not r

elevant is not admissibl e.” Tenn. R. Evid. 402; see State v. Forbes , 918 S.W.2d 431, 450 (Tenn. Crim. App. 1995). We do not find that the trial court abused its di scretion in excluding the disputed testimony. How the Appe llant’s rape trial affected H orton had no relevance to the Appellant’s guilt or i nnocence. Horton’s proposed t estimony did not offer any evidence of probative v alue, but rather amounted to no more than speculation and conjecture. At the end of the trial, the Appell ant also requested the tri al court to allow an offer of proof regarding the same evidence, bu t the trial court denied the Appellant’s request. While trial courts should, as a general rule, always allow offers of proo f, this Court has also stated that it is not error to refuse an offer of pr oof if it is clear from the8

record that the testimony i s obviously irr elevant evidence. Alley v. State , 882 S.W.2d 810, 816 (Tenn. Crim. App. 1994). Having already c oncluded that the disputed portion of Horton’s testimony was irrelevant, we, therefore, find that the Appe llant’s constitutional right t

o a fair trail was not v

iolated by the trial c

ourt’s refusal to admit the Appellant’s offer of proof. Moreover, the Appellant has failed to show any prejudice, since his counsel stated on the record what Dorey Horton’s anticipated testimony was to be. III The Appellant’s third contenti on is that the trial court erred when it prohibi

ted him from introducing testimony that the first grand jury which considered the case returned a no true bill. Thi s issue is without mer it. B.C. offered grand jury tes timony on two occasions with regard to the r

ape. The first time, the grand jur y returned a no true bil l. The second time, howev er, the grand jury found the evi dence of the Appellant’s rape sufficient to return an indictment. During re-d irect exam ination , the Sta te, in ord er to bols ter B.C.’s credibili ty, elicited testimony to the effect that she had con sistently told several different people what happened to her on the even ing of the rape. As a part of that line of question ing, the State asked B.C. whether she had testified in front o f the grand jury. On re-cross examination, the Appellant’s counsel sought to elicit testimony from B.C. to the effect that the first grand jury had returned a no true bill. The State objected an d after a bench conference, the trial cour t sustained the State’s objection. The Appellant now argues that his right to cross-examination was violated because h e was not allowed to show that the first gr

and jury returned a no tr ue bill. In particular, he contends that since he was not allowed to show that B.C. had testified in front of two grand juries, the jury at the trial was misled as to her cr edibility in that the fir

st grand jury’s r

eturning of the no true bill gave B .C. an incentive to ex aggerate her allegat ions of rape. The propriety, scope, and control of witness cross-examination is within the trial court’s discretion and w ill not be overturned abs ent clear and plain abuse. State v.9

Richardson , 875 S.W.2d 671, 67 5 (Tenn. Crim. App. 1993). It is well-established in Tennessee that the grand jury ’s findings are irrel evant to the trial on the mer its. State v. Oneidas , 635 S.W.2d 516 (Te nn. 1982). The fact that a grand jury does not return a true bill shall not be t aken as an indication that the ac cused is innocent. The grand jury’s indictment is

pure hearsay and only an accusation formed by a gr oup of men and women consi dering ex parteevidence. Montesi v. State , 417 S.W.2d 554, 560 (Tenn. 1967). As it is well-es

tablished in Tennessee that a gr and jury’s findings ar

e irrelevant to the trial on the merits, we decline to find that the tr ial court abused its discretion. Accordingly, w

e find that the Appellant’s consti tutional right to a fair t rial was not violated. IV The Appellant’s fourth and final conte ntion is that the sentence imposed is excessive. This is

sue is without merit. Rape, a Class B f elony, carries a sen tence of eight to twelve years for a Ran ge I standard offender. In this case, the trial court sente nced the Appellant to nine years imprisonment in the Tennessee Depar tment of Correction applyin g two enhancement factors. The trial court found that the victim had suffered physi cal injury whic h was particularly gr

eat from the rape and that the rape w as committed for pleasure or excitement. See Tenn. Code Ann. § 40-35-114(Supp. 1996) ; see also State v. Adams , 864 S.W.2d 31, 34-35 (Tenn. 1993). The Appellant argues that the phy sical injury enhancement factor was not applicable in this situation. He also contends that the rape was not committed for pleasure or excitement bec ause B.C. engaged in sex ual intercourse with

the Appellant to seek revenge again st Dorey Horton. When an Appellant complains of his or her sentence, we must conduct a de

novo review with a presumption of correctness. Tenn.Code Ann. § 40-35-401(d) (1991). The burden of showing that the sentence is improper is upon the appealing10

party. Id , (Sentencing Commission Comments). This presumption, however, is conditioned upon an affirmative show ing in the record that the trial court considered the sentencing principl es and all relevant facts a nd circumstances. State v. Ashby , 823 S.W.2d 166, 16 9 (Tenn. 1991). The minimum sentence within the range is the presumptive senten ce. If there are enhancing and mitigating factors, the court must start at the minim um sentence in the range and enhance the sentence as appropriate for the enhancement factors and then reduce the sentence within the range as appropriat e for the mitigating factors . If there are no mitigating factors, the court may set the sentence above the m inimum in that range but still w

ithin the range. Tenn. Code Ann.§ 40-35-210 (1990). The trial judge has full discretion to determine the weight given to each factor, as long as it does not violate the princ iples of the Sentencing Reform Act

. Id . (Sentencing Commission Comments). The Sentencing Act provides that the trial court may enhance a def endant’s sentence if “[t]he personal inj uries inflicted upon . . . the victim [were] par ticularly great . . . .” Tenn. Code Ann. § 40-3 5-114 (6) (Supp. 1996). In this case, however, the only evidence of physi cal injury to B.C. w as a bruise on her back caus ed by a part of the seat belt sticking u p between the seats, a finger nail indentation on one of her shoulders, and pain in one shoul der. We cannot agree with the trial court that the injuries i nflicte d upon B. C. were part icularly gre at. In rea ching tha t conclus ion, we take not e that “r ape is a serious

offense w

hich is injuri ous to th e body a nd mind o f a victim and we can re

asonably conclude that such harm was considered by the legislature in its decision to place such conduc t in one of the higher felony classifications.” State v. Embry , 915 S.W.2d 451, 457 (Tenn. Crim. App. 1995). Accordingly, w

e find that although the vic tim suffered injuries, those inj uries were not “particularly g reat” as contemplated by the statute for enhancement purposes. The trial court also found the enhanc ement factor that “[t]he offense involv ed a victim and was committed to gratify the defendant’s desire for pleasu re or excitement.”11

Tenn. Code Ann. § 40-35-114(7). Si nce pleasure or excitement is not an essential element of rape, that sentence enha ncement factor can appropriately be applied, if proven in a rape case. The State has the burden to prove that the rape was sexually motivated. Adams , 864 S.W.2d at 34-35. We are of the opinion that the State met its burden of proof that the rape was sexually motivate

d to gratify the Appellant ’s desire for pleasure or excitement. The Appellant offered B.C. a ride from the V. F.W. Club, and on the way back to her car, he suddenly turned into an indus trial area and drove to a secluded place. The Appellant then started kissing and fondling the victim, and ev en though she resisted, he continu ed his act ions and made sta tements to the ef fect tha t they were go ing “to have some fu n.” The A ppellan t then lub ricated h imself a nd B.C., u sing lotio n and his o wn saliva, before penetrating B.C. Even though he did not ejaculate, he continued the sexual intercourse unti l B.C. screamed that she coul d not breathe. We find that the trial court appropriately applied this enhancement factor. The Appellant also contends that the trial court erred in n ot considering that he has made many positive cont ributions to his community as a mitigating factor. In that respect, the Appellant arg ues that he has been a member of the National Guard for twelve years, that he volunteered for the Gov ernor’s Inaugurations, that he participated in the Jayc ees and the March of Dimes, that he was a vocational instructor at Kilgor

e High School, and that he co ached T-ball in Dickson C ounty. Community service or contribution is not included in the list of mitigating factors contained in the Sentencing Ac t. The Act, however, pr ovides that the trial c

ourt can consider “[a]ny other fact or consistent with the purposes of this chapter.” Tenn. Code Ann. § 40-35-113(13) (1990). Therefore, it was for the tri al court’s discretion whether to consider the Appellant’s community contributions a mi tigating circumstanc

e and the weight to be giv

en to such evidence. Consi dering the seriousness o f the crime of rape, we do not find that the tr ial court abused its discretion when it gav e the Appellant’s community contr ibutions little wei ght as a mitigating fact or. Although the12

trial court improperly

applied one enhancement factor, we nevertheless conclude that the Appellant’s nine-year sentence is appropriate, g iven the existing enhancement factor. For the reasons stated in this opinion, we affirm the trial court’s judgment in all respects.

__________________________ WILLIAM M. BARKER, JUDGE

CONCUR:

__________________________ PAUL G. SUMMERS, JUD GE

__________________________ JOE G. RILEY, JUDGE