### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE September 26,

2000 Session

STATE OF TENNESSEE v. ANTHONY LYNN WYRICK

Appeal from the Criminal Court for Knox County No. 64317 Ray L. Jenkins, Judge

No. E1999-02206-CCA-R3-CD

May 4, 2001

The defendant was convicted of twocounts of aggravat ed rape and sent

enced to concur

rent terms of life without parole as a repeat violent offender. He challenges the sufficiency

of the presentme

nt, the s ufficiency

of the evidence

, the admission of th

e victim’s in-cour

t identification of

him as th e attacker, the exclusion of evidence of a prior false accusation of rape by the victim, his inability

to discover the victim’s rape crisis center file, and the constitutionality of the repeat violent offender
statute under which he was sentenced. Because the defendant should have been allowed to impeach the victim by cross-e

xamining her abou

t the prior false a

ccusation of rap

e, we reverse t

he judgments of conviction and remand the case for a new trial.

Tenn. R. App. P. 3 Appe al as of Right; Judgme

nt of the Criminal C

ourt Reversed;

Case Remanded

J OSEPH M. T IPTON , J., delivered the opinion of the court, in which J ERRY L. S MITH and J AMES C URWOOD W ITT , J R ., JJ., joined.

Laura Rule, Knoxville, Tennessee, attorney for the a ppellant, Anthony Lynn Wy rick.

Paul G. Summers, Attorne y General and Reporter; Eliza

beth B. Marney

, Assis tant Attorney Gener al; Randall E. Nichols, District Attorney General; and Scott Green, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

The defendant, Anth ony Ly nn Wyrick, ap

peals as of righ

t his convictions in th

e Knox County Criminal Court for tw

o counts of agg

ravated rape,

a Class A

felony. Because the defendant was a repeat violent offender, the tri al court sentenced him to concurrent sentences of life without the possibility of parole. See Tenn. Code Ann. § 40-3 5-120. The d efendant con tends the f ollowing:-2-

(1) the presentment is

insufficient bec

ause it fails

to allege his 1987 rape conviction, which is an essential ele ment o f the o ffenses and should be left for the jury’s determination;

(2) th e e vidence is insufficient to support his convictions because the victim’s
tes tim ony i s un corr obo rat ed an d co ntr adi cto ry;

(3) the trial court should have suppressed the victim’s in-court identifi cation of him after she admitted that she was not sure that he was the person who raped her;

(4) the vi ctim’s prio

r false accusation of rape was admissible to impeach her cred ibi lit y;

(5) extrinsic evidence of prior inconsistent statements was admissible to impeach the victim and her fa

mily members ;

(6) he was denied exculpatory evidence because, in reviewin g the victim’s rape cr isis
center file in camera , the trial court did no t comp are the file to the victim’s statements to determine if inconsistencies existed; and

(7) the repeat v

iolent offender

statute is unconstit

utional.

Because the trial court committed harmful error in not allowing the defendant to

cross-examine the victim on the prior false accusation of rape, we reverse the judgments of conviction and remand the case for a new t

rial.

The charges of aggravated rape ag ainst the defendant arose out of LaShonta Harrison’s report that he forced her at

knife-point to perform oral sex and to submit to vaginal intercourse on July 26, 1997. The then twenty-three-y ear-old victim testified

that at the time of the offenses, she had been married to John David Harrison for two months and that they lived at 2307 East Glenwood Avenue in East Knoxville. She said that her husband worked at BW3, a restaurant in the Old City, and that she worked at

Labor World, a temporary employ ment service. She said that on an assignment from Labor World, she worked at the Knoxville Civic Coliseum from 4:00 to 9:00 a.m. on July 26th

. She said she returned to the Coliseum at 3:00 p.m. on the 26th, but she did n ot rememb er when she finished. She said that she spoke with her husband several times that evening and that she called

him from the pay telephone at Labo r World bet ween 12:00 and 1:00 a.m. She said that earlier that evening, she had seen her husband at BW3 and

had asked him to

meet her at Labor

World to walk her home. She said that she was not feeling well that evening and that she waited for

about forty-five minutes before she began walking home alone. She sa

id that it usually

took twenty-

five minutes to walk home.

The victim testified tha

t from Labor Wo

rld , which wa s on the corner of Fifth Avenue and Gay Street, she began walking down Fifth Avenue. She said that a car traveling very

slowly passed-3-

her a couple of times. She said that she saw the car a third time and that the defendant, who was driving, stopped the car and asked her if she wanted a ride. She said that she did not respond and continued walking on Fifth Avenue. She stated that ten to f ifteen minu tes later before she turned
onto Polk Street, the car passed her again. She said that once on Polk, she saw the car driving toward Washington Street. She said that she became scared and that when the car slowed, sheran, jumped a fence, and ran through someone’s yar d to get to Washington Street.

The victim testified tha

t s he enco untered the car again and that th

e defendant go

t out with

a knife in his left handand ordered her into the car, telling her that if she did as he directed, nothing would happen to her. She said that she complied because she thought that he would kill her if she refused. She said that the defendant put her in the passenger’s side of the car and that she did not

run as he walked to the driver’s side because she thought that he would be faster th

an she was. She said that the defenda

nt demanded oral s

ex while driving a

nd pulled down his sho

rts, exposing his penis. She said that she co mplied because he

told her that if

she perfo rmed oral sex, she would not be hur t. She said that she performed oral sex for less than a minute while the defendant held her neck with one han

d, held the knife, and drove. She said that she stopped and tried to open the car door, but the defendant ordered her to lock it. She stated that after she refus ed to cont inue performing oral sex, he stopped the car, got out, pulled her shorts down, and penetrated her vagina withhis penis. She said that he ejaculated on the passenger’s seat. She said that he then told her to get out of the car and that as he drove away, she saw that the car had a Ten nessee handicapped license tag, number UDA-240. She said that she was less than a block from her house when she got
outof the defendant’s car but that she ran in the opposite direction from her house. She said she knockedat a house with lights, but no one answered. She said that she was afraid that the defendant would return because

he had stopped his c

ar. She st

ated that she ran toward another car and screamed and that it stopped. She said that she told the driver that she had just been raped, that he took her to a pay telephone, and that she called 911.

The victim testified that later that day, she began cry ing whenshe identified the defendant’s

car in the impound garage. She said that on September 2, 1997, she met with Detective Clowers and identified the defendant as her attacker f rom a photograph array. She stated that when she first saw the defendant in the courtroom, she had some reservations about whether he was her assailant. She said that the defendant no long er had a mustache

or beard, that his

hair was thinner, and that he had gaine d weight. She said that she looked at the photograph array a gain and, at the time of he r testimony, had no doubt that the defendant was the man who raped her.

On cross-examination

, the victim

testified that she did not recall returning to the Coliseum
at 4:00 p.m. on July 2

6th or getting off at 8:00 p.m. She said that at 1 1:00 p.m., she was at

BW3 waiting for her husband to finish work and that she returned to Labor World with two friends and then called her

husband from there. She said that shecould have passed BW3 on her way home but that her husband was n

o longer there

at that time. She said that due to a misunderstanding, her husband had goneto Weigels, which was not on the way home from Labor World. She admitted that she was mad at her

husband th at evening be cause he want ed to go to a friend’s house to get high on marijuana befor

e they walk

ed home and she did not want to go because she was feeling sick. She-4-

said that she argued with her husband about the rape after she left the ho spital where the rape

ex amination w as performed. Sh e admitted that she

told Detective Clow

ers that her fing

erprints would be inside the car.

David Mason, a postal worker, testified as follows: In July 1997, he lived on Fifth Avenue. At 4:00 a.m. on July 27, 1997, he was driving home when he saw the victim coming toward him and screaming, “Help me.” Hestopped, and she to ld him that she had be

en raped. The vic

tim appeared very scared. He took

her to a pay

telephone at a ne

arby Conoco

gas station and st

ayed with he

r until the police arrived. Jack Price, the records specialist for the 911 system, testified that the dispatcher received a telephone call in the early morning hours of July 27, 1997, and that it sounded as if the person maki ng the call wa s crying.

Officer Chris McCarter of the Knoxville Police Department (KPD ) testified as fol

lows: In the early morning ho urs of J uly 2 7, 1997, he received a dispatch to respond to a rape report. He locatedthe victim with Mr. Mason at a Conoco station, andshe was very upset and was cry ing. The victim said that she hadjust been raped at knife-point and gave him a license tag number, UDA-240, for her assailant’s car. She

described her attacker

as a white male who was six feet tall; weighed

one hundred eighty pounds; had blond hair and a tattoo on his left ar

m; and wore a t-shir

t, blue shorts and a ball cap. An ambulance

transported the v

ictim to Baptist Hos

pital, where she

gave the same de scri ption of her attacker . Around 6:00 or 6:3 0 a.m., Officer McCarter went to

2726 Delrose Avenue, the address he re ceived as that re

la ting to the car bearing the tag number given by the victim, and found a 1990 silver, four-door Nissan. The defendant’s mother, who owned the car, sa id that the defendant

had used the car the previous night. She showed Officer McCarter the building
at the rear of the house where the defendant staye d, but the defendant wa s not there. Officer McCarter searched the immediate area but did not find the defendant. He impounded the car.

Mary Huskey, an emergency

room nurse at Baptist Ho spital, test ified as follows: At 4:40 a.m. on July 27,

1997, she assisted

Dr. Cauble in

treating the victim who complained that she had been raped. She conducted a head to toe examination of the v

ictim and found no br

uises, abrasions,

or tears. A notation on the victim’s chart stated tha t the victim’s vag

inal wash revea

led no mobile or immobile sperm.

Dr. Dan Cauble, an emergency room phy sician, testified as follow s: He saw the victim between4:30 and 5:30 a.m. on July 27, 1997. He took the victim’s history, and she said that she had been raped vaginal

ly and forced to perform oral sex between 4:20 and 4:30 a.m. and that her attacker had used a knife to

force her to

comply. She said that her assailant had not ejaculated in her vagina

or mouth. She reporte

d that she had last e

ngaged in inte

rcourse two day

s earlier. Dr. Ca

ubl e examined the victim, found no bruising or abrasions, and observed no tears or br uising on her genitals. His fin

dings neither ad

ded nor detracte

d from the history

given by th

e victim.

Terry Cl owers, a de tective with the KPD and the lead investigator in the case, testified as follows: In the

early morn

ing of July 27,

1997, he spoke with

the victim

at Baptist Hospital. The victim, who was crying, described her rapist as a white male, possibly six feet tall, weighing about-5-

one hundred eighty

pounds, with blond or

brownish hair. Sh

e said that he wore a t-s

hirt, denim shorts, and a baseball cap. He had a tattoo on his left arm and used a large folding knife with a silver blade. She said he drove a small gray or silver car with the lice

nse plate number UDA

-240. She said that once she saw the l

icense plate, she

recited the numbe

r to herself repea

tedly in orde

r to remember it. On July 28 th, he took

the victim and her husband to view a car that the police were processing in relation to her case. As they drove by the impound garage, the

victim saw the car

with the license plate number UDA-240 and began crying a nd screaming, “There’s the car.” He was not able to take the victim’s statement

at that time becau

se she was too upset. The defendant completed a personal history form at the police department on July 28, 1997, and it revealed that he had a skull tattooed

on his right arm. He said that he resubmitted the physical specimens collected in the investigation for new testing because they came back insufficie ntalthough the initial tests revealed the presence of sperm and he thought that new tests might result in a better finding.

Detective Clowers testified that the victim eve

ntually told h

im that she was suppo

se to work
at Labor World on the night of the offenses but became ill and decided to walk home. He testified about the route taken by

the victim with the aid of a diagram prepared by a KPD crime analysis. The diagram shows that from L

abor World, the vic

tim walked up East

Fifth Avenue and turned

onto Polk Street. Detective Clowers testified that the victim told him that the defendant abducted her on the

corner of Polk and Washington Avenue. The diagram reflects that the defendant raped and sexually assaultedthe victim one bloc k later at the cor

ner of Washington

and Olive Street.

The victim

fled

one block up Washington, turned onto Spruce Street, and went two blocks before encountering the motorist who took her to the Conoco station. Detective Clower s stated that the vic

tim told him that
at one point, when the

defendant appr

oached her in

h is car and tried to pick her up, an AfricanAmericanwoman stepped forward and propositioned the defe nda nt, who decl ine d an d dr ove away. Detective Clowers said that the victim’s husband stated that he was supposed to meet the victim at Weigels that nig

ht.

Detective Clowers also testified as follows: The victim returned to the KPD on September 2, 1997, and looked a

t a photographic

line-up. The victi

m first looked at bla

ck and white photographs and then at color photographs of the same people. Both times, the victim pointed to the defendant’s photograph and said that she was sure that he was the man who had raped her. On the first day of tria

l, the victim

volunteered that when she first saw the defendant in the courtroom, she didnot think that he was her attacker because he was a different weight an d did not have a beard. In the presence of

the district attorn

ey and the d

efense attorne

y, Detectiv

e Clowers showed t

he victim the same photograph array and told her that these wer e the same pictures that she had viewed before. She pointed directly

to the defendant’ s picture and said that she had no doub

t that he was the ra

pist. Detective Clowers agreed that aside from the absence of a scruff y beard and the further receding of his hairline, the defendant looked fairly the same at the time of trial as in the photogra phs.

Gerald Smith, a criminalist with the Knoxville Police Department, t estif ied as follows: Between 6:45 and 7:15 a.m. on

July 27, 1997, he went to 2726 Del rose Avenue and

secured with crime scene tape a 199

0 Nissan Sentra XE

with a handicap lic

ense tag number UDA-240. At the time he arrived, other officers had searched the woods, and they continued to

look for the defendant-6-

du ring the thirty minutes that he was there. Later that morning, he processed the car at the polic e department’s garage. He dusted the enti re car for fing

erprints, collec

ted some partial finger

and palm prints and some smudges, and turned these over to the identification unit. He said that if an occupant

were moving around

or struggling, he would find mostly smudges. He also

said that he would

not expect to collect any prints from the hard plastic of the car door because it was highly textured.

Dan Crenshaw, an expert in fingerprint ident if ication from the K

PD’s criminalistic s unit, testified as follows: He received palm prints from various locations in a Nissan Sentra

XE with the license number UDA-240. The only usable print came from the outside door fram e behind the window on the passenge

r side. He compar

ed the print to those

of the victim and w as not able to identify it as her print.

Tennessee Bureau of Inve stiga tion (TBI) Agent Kelly Smith, a forensic s

cientist, testified as follows: She found no semen o n the fabric

taken from

the car seat. She found semen along the back

seam of the victim’s shorts andon the vaginal swabs collected from the victim, but the DNA from boththe shorts and the swab was insuffic ient to obtain a DNA profile. On cross-examination, she stated that semen degr

ades over time an

d that one possible explanation of the insufficiency of the DNA was degradin g. Another possibility was that the amoun

t of sperm in the sam

ple was too small. The samples were retested in Nashville but the finding was the same – the tests revealed no DNA profile other tha

n the victim’s.

Stan Bunch testified as follows: In 1997, he was the general manager for Labor World, and the victim was one of his employees. On July 26, 19 97, Labor World sent the victim to clean the Knoxville Civic Coliseum. She reported to the Coliseum at 4:00 a.m. and left at 9:00 a.m. for a total of five hours work. She returned to the Coliseum at 4:00 p.m. and worked until 8:00 p.m. for a total of four hours work. The victim was probably scheduled to work at the Coliseum again at midnight

on the 26th

because the Coliseum management prefers to have the same workers, but no recor d exists to show that she was sent back to the Coliseum at that time.

John David Harrison testified as follows: In July 1997, he and the victim had been married for two or three months . He worked at BW3 in the Old City. On July 26, 1997, he went to work around4:30 or 5:00 p.m ., leaving the vi ctim at their home. The victim told him that she was working at the Coliseum that e vening and would

be starting aro

und midnight. The v

ictim called him when she finished work

, said she was fee

ling ill, and wante

d him to meet her. Based upon his telephone conversation with the victim, he be lieved that they were to meet at We

igels and walk hometogether. He di

d not recall arg

uing with the victim that evening about him smoking marijuana. He left work around

2:00 or 3:00 a.m. and walked toward Weigels, thinking that he would meet the victim on her way fr

om the Coliseu m. He waited for t he victim at Weige

ls for twenty

or thirty minutes, but she never came. After stopping at a friend’s house, he walked home, arriving around 4:00 a.m. When he g

ot there, the land

lord told him that the

police had been t

here looking fo

r him because the victim had a pr

oblem. He said tha

t if the victim had not had any proble ms, she probably would have arriv

ed home before h

im.-7-

Anonda Joiner, the victim’s younger sister, testified as follows: Despite having the typical problems that sisters have, she and the victim had rem ain ed close. She frequently left her three children, ages six, three, a nd newborn, in th

e victim’s care. She did not know if the victim had a reputation for being truthful or for being dishonest. She discussed the offenses with the victim once bri efl y, but the victim did not feel like discussing them. She remembered telling Mike Cohan, the defendant’s investigator, th at the victim did not s

eem very up

set when they

dis cus sed the case. Instead, the victim seemed w ithdrawn, which sh

e thought to be unu

sual because the v ictim was typically a very

emotional and dramatic person.

Michael Cohan, a private investigator, testified as follows: The de fendant hired him to inve stiga te the case. On May 8, 1998, he spoke with the victim at her home. She said that she initially thought that the defendant had a gun but then realized that he had a knife. She to

ld him that her fingerprints would beinside the defendant’s car because she put her hand on the gearshift handle. She told him that she hit the defendant on the back during the rape. Mr. Co han said that in describing what happened, the victim never mentioned jumping over any

fences, but she did remark that she was able to take care of herself. He admitted that the victim spoke freely with him.

Mr. Cohan said that he spoke with the victim’s husband, who told him that the v ictim said she would be working until 10:00 o r 11:00 p.m. on the evening before the offenses and that she calledher husband at midnight that night. He spoke with Anonda Joi ner, who told him that the victim cried easily. Ms. Joiner told him that the victim’s reac

tion to the offense

s was unusually

flat and that on one occasion, the victim seemed to think that the whole incident was funny. He admitted that while investigating the case, he found nothing to indicate that before the offenses, the victim had a personal ve

ndetta against t

he defendant.

I. SUFFICIENCY OF THE PRESENTMENT

The defendant contend s that the trial court’s failure to dismiss the indictment constitutes plain error because it does not allege an essential element, his 1987 conviction for rape. First, for clarificationpu rpose s, we note that the defendant was c

harged by

presentment, not i

ndictment. However, it does not change the substance of the defendant’s claim.

The defendant maintains that the repeat violent offender statute, Tenn. Code Ann. § 40-35- 120, increases the sentence for aggravated rape beyond the

maximum Class A sentencing range of fifteen to sixty years

to life imprisonment without possibility of parole based upon the existence of prior convictions for violent offenses. He argues that the dramatic increase in his sentence based upon his prior rape conviction essentially serves to convict him of a greater offense without the jury making a factual finding regarding his prior conviction. Thus, he contends, the imposition of a sentence of life without parole based upon his prior rape conviction violates his rights to due pr ocess and a fair trial because the jury was not permittedto find an essential element of the offenses. See Apprendi v. New Jersey , 530 U.S. 466, ___, 120 S. Ct. 2348, 2365 & n.19 (2 000). The state contends that the repeat violent offender statut

e is a recidivist st

atute that does not

create a separate offense but, instead, merely enh

ances punishment f

or those who repe

atedly comm

it violent offenses

.-8-

In Apprendi , the United States Supreme Court struck down a New

Jersey hate

crime statute that provided for

the judge to enhance the de fendant’s sente

nce above the ma

ximum in the range if the crime was racially motivated. 530 U.S. at ___, 120 S. Ct. at 2366. Justice Stevens, writing the leadopinion, which is joined by Justices Souter and Ginsburg, concludes that “[o]ther thanthe fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a r easonable doubt.” Id. at ___, 120 S. Ct. at 2362-63. Justice Tho mas jo ins “the opinion of t he Court in full” but

writes a separa

te concurring opinion advocatin g that those fac

ts that must

be submitted to the jury include the fact of

a prior conviction. Apprendi , 530 U.S. at ___, 120 S. Ct. at 2367-69 (Thomas, J., concurring, joined in part by Scalia, J.). Justice O’Connor, joined by Chief Justice Rehnquist and Justices Kennedy and Breyer, concludes that all sentencing facts, including prior convictions, can be left for the sentencing judge’s determination and do not have to be charged to the jury. Id. at ___, 120 S. Ct. at 1286-87, 1 292. Although the Apprendi Court is split three ways, a majority of the jus tices – the fou r dissenters and the three justices joining in the lead opinion – agree that recidivism is not a fact that

mus t be char ged t o th e ju ry.

In the lead opinion in Apprendi , Justice Stevens states that it “‘is unconstitutional fo r a le g islature to remove from the jury the assessment of facts that increase the pre scribed range of penalties to which a criminal defendant is exposed.’” Id. at ___, 120 S. Ct. at 2363 (quoting Jones

v. United States , 526 U.S. 227, 252, 119 S. Ct. 1215, 1228 ( 1999) (Stevens, J., c oncurring)).

Despite the sweeping nature of this holding, Justice Stevens discusses an exception when the challenged fact that increases the pu

nishment above the

maximum in the range

is a prior conviction. Apprendi , 530 U.S. at ___, 120 S. Ct . at 2362. This excep tion turns upon the Co

urt’s earlier ho

lding in Alamendarez-Torres v. United States
, 523 U.S. 224, 118 S. Ct. 1219 (1998), which involved an alien who p led guilty to entering the country unlawfully after being deported, a crime which c arried a maximum sent ence of t wo years. Because the defendant wa s originally deported for committing three aggravated

felonies, the sta

tute permitted his s

entence to be inc

reased to a maximum o

f twenty years. The Court considered whether the port

ion of the statute

that increased

the sentence created

a sep arat e cri me o r was onl y a penalty provision permitting an enhanced sentence based upon a prior conviction. The Cou rt held that recidivism, “a traditional, if not the most traditional basis for a sentencing court’s increasing an o ffend er’s sentence,” relates only to punishment and not to the nature of the offense. Alamendarez-Torres , 523 U.S. at 243-44, 118 S. Ct. at 1230-31.

In Apprendi , Justice Stevens notes that the holding in Alamendarez-Torres hinged upon the fact that the increased sentence was based upon the defendant’s prior convictions, which had been obtained in proceedings with considerable procedural safeguards. Apprendi , 530 U.S. at ___, 120 S. Ct. at 2361. “Both t he certa inty that pr ocedural safeguards attached to any ‘ fact’ of prior

conv ic tion, and the reality that [the defenda

nt] did not challeng

e the accurac

y of that ‘f

act’ in his
case, mitiga ted the due process and Sixth Amendment concerns otherwise implicated in allowing a judge to determine a ‘fact’ increasing punishment beyond the maximum of the statutory range.” Id. at ___, 120 S. Ct. 2362 (footnote omitted).-9-

The defendant contends that a logical reading of Apprendi reveals that the distinction made for recidivist statutes in Alamendarez-Torres no longe r applies. He relies upon Justice Thomas’s

co ncurring opinion in Apprendi , which parts fro m the lead opinion in

its insistence that

a prio r conviction should be charg ed to the jury

like any othe

r fact that enha

nces the sentenc

e above th

e maximum in the range. Apprendi , 530 U.S. at ___, 120 S. Ct. at 2368-69 (Th

omas, J., concur ring, joined by Scalia, J.). Justice Thomas opposes the holding in Alamendarez-Torres , contending that if a fact provides a legal basis for increasing the defendant’s punishment, it forms an ele ment of the crime even if the particular fact is a traditional basis for increasing the sentence. Id. at ___, 120 S. Ct. at 2379 (Thomas , J., concurring). Although noting that recidivism is a traditional basis for increasing a sentence, Justice Stevens in the lead o pinion em phasizes that a prio r conviction is different from other enhancing facts in that the defendant has already gai ned what he s eeks with regard to the enhancing

fact – a jury’s determination beyond a re asonable doubt

of the conviction’s validity or the procedural equivalent thereof. Apprendi , 530 U.S. at ___, 120 S. Ct. at 2361-62.

In dismissi ng Alamendarez-Torres , the def end ant also relies upon Justice O’Connor’s dissenting opinion in Ap prendi , whi ch finds no distinction between a prior conviction and other sentencing “facts” that enhance the sentence above the maximum in the range. Apprendi
, 530 U.S.
at ___, 120 S. Ct. at 2396 (O’Connor, J., dissenting). Justice O’Connor, joined by Chief Justice Rehnquist

and Justices Kennedy and B reyer, r easons that Alamendarez-Torres repudiated the majority’s holding that an increase in the maximum punishment triggers a co

nstitutional eleme

nts

r ule. Id. at ___, 120 S. Ct. at 2387 (O’Connor, J., dissenting). In other words, Justice O’Conno r would hold that judicial fact finding in sentenc ing should n ot be limited to prior convictions but should be extended to all sentencing facts. See id. at ___, 120 S. Ct. at 1286-87. Need les s to say, Justice O’Connor’s dissen t neither reject

s Alame ndarez-Torres nor suppor ts the defendant’s position on this issue.

Although Justice Stevens indicates that the Court could revisit its holding in AlamendarezTorres
, he continues to recognize the holding in Alamendarez-Torres as a narrow exception to the

ru le that a fact which

serves to enhanc

e the sentence a

bove the maximum in the range must b e charged to the jury a

nd determined bey

ond a reasonable

doubt. Apprendi , 530 U.S. at ___, 120 S. Ct. at 2362. As in Alamenda rez- Torres
, the “fact” in the present case that serves to increase the
sentence abo ve the maximum sixty-year term is the defendant’s 1987 rape conviction. As a pr ior conviction
, this fa ct falls squarely within the exception

recognized by

the Supreme Court in Apprendi

. The defendant enjoyed substantial procedural safeg uards at the time he entered this plea. Furth ermore, as no ted by the state, the defendant does not challenge the validity of his 1987 conviction.

The historical treat

ment of recidivist

statutes in Tennes see supports the exception of prior convictions from the facts that comprise an essential element of the offense. Although a defendant’s
status as a habitual criminal under the former Habitual Criminal Act, which imposed a life sentence base d upon the defendant’s fourth conviction of certain specified felonies, was determined by the jur y, this was not constitutionally compelled but was a function of statute. See Tenn. Code Ann. § 39-1-801 (repealed 1989). Similarly, the legislature requires that a ju

ry determin

e that a defendant-10-

has previously been convicted of the same offense in order to enhance punishment for a subsequent

co nvict ion for that offense. Tenn. Code Ann. § 40-35-203(e). Apparently due to distrust of a powerful judiciary, the legislature transferred sentencing power from the judge to the jury in 1829. See State v. Mackey , 553 S.W.2d 337, 342 (Tenn. 1967), superseded on other grounds by Tenn. R. Crim. P. 37(b) & T.R.A.P. 3(b); see also Public Acts of 1829, ch. 23 § 76 (providing for theswitch
to jury sentencing in two yea rs); 1831 Tenn. Pub. Acts, ch. 83 § 1 (establishing jury sentencing); see also Woods v. State , 130 Tenn. 100, 107, 169 S.W. 558, 559 (Tenn. 1914) (holding that the “right
to have the jury assess the punishment was not a part of the right of trial by jury at common law”). When the legislature enacted t he Ha bitual Criminal Act i n 1932, it specifie

d that the jury

would determine whether a defe ndant was a habitu

al criminal, but it d

id not requir

e that t he habitual criminal accusation be charged in the indictment. 1932 Pub. Acts, ch. 22 §§ 4-6. Our supreme court affirmed this procedure, holding that altho ugh it might be commendable to give the defendant notice of his potential ha

bitual criminal sta

tus in the indictment

, such was not nec

essary bec

ause

in a p rosecution fo r a second or subsequent offense, the fact of a prior conviction, proof of which will autho

rize the impositio

n of an in creased punishment, does not constitute an element of the offense charg ed, and . . . a statement of the fact is not essential to a statement of the “nature and cause of the accusation.”

McCummin gs v. St ate , 175 T enn. 309, 313, 134 S.W.2d 151, 153 (Tenn. 1939) (quoting Tenn. Const. art. I, § 9).

A federal court subsequently held that the procedure descr ibed in the Habitual Criminal Act violated a defendant’s due process rights because it failed to give him any pretrial not ice of

the habitual criminal accusation. Rhea v. Edwards , 136 F. Supp. 671, 682 (M.D. Tenn. 1955), aff’d 238 F.2d 850 (6th Cir. 1956); see Bom ar v. Sta te e x re l Bo yd , 312 S.W.2d 174, 178 (Tenn. 1958) (limiting Rhea

to a ruling on notice under the Habitual Criminal Act). The Rhea court noted that

the Tennessee Legislature had apparently recognized

the problem presented by lack of notice under the Act because it amended

the Act in 1950, requiring that the habitual criminal accusation be included in the indictment for the underlying substantive offense. R hea , 136 F. S upp. at 682-83. De spite these changes, Tennessee courts continued to emphasize that the Habitual Criminal Act did “not
create an independent crime but a status prescribing circumstances under which there is an enhanced penalty for the present crime.” Harrison v. State , 217 Tenn . 31, 34, 39

4 S.W. 2d 713, 71 4 (Tenn. 1965); State v. Duffle
, 665 S.W.2d 402, 404 (Tenn. Crim. App. 1983). Notably, the violent offender
st atute at issue in this case does require the state to provide the defendant pretrial notice that the defendant qualifies for enhanced

punishment under the statute. Tenn. Crim. Ann. § 40-35-120(i)(2). Thus, the history o

f the Habitual Crim

inal Act does not su

ggest that our

courts would treat the fact of a prior conviction as an essential element of the crime.

The defendant argues that the violent offender statute is not a recidivi st statute and that sections 40-35-111 and -112 of the code enco mpass recidivism

while section 40-3 5-120 deals with prior convictions

for specific of

fenses. Initially

, we note that a re

cidivist is a “habit

ual criminal;a criminal repeater.” Black’s Law Dictionary 878 (6th ed. 1991); see also Webster’s Thi rd Ne w-11-

International

Dictio n ary

1895 (1993) (defining recidivist as “one who relapses,” specifically “one who persists in crime,” a habitual criminal). Section 40-35-111 provides the termsof imprisonment and the authorized fines for the various classes of felonies and misdemeanors. Section 40-35-112 gives the possible sentences for each felony classification within each of the three senten

cing ranges. Of the se two sections, on

ly 40-35-11 2 can be construe d as taking into ac

count the defend

ant’ s

comm ission of oth er crimes, and it only does so indirectly bec ause the three sentencing ranges described therein corres

pond to the defend

ant’s classifica

tion as a standard, multiple, persistent, or

career offender. See Tenn. Code Ann. §§ 40-35-105 to -108. The trial co urt d etermines a defendant’s status as a standard, multiple, persistent, or career offender by e xam inin g the number and classification of the defendant’s prior felony convictions. Tenn. Code Ann. §§ 40-35-105( a), -106(a), -107(a), -108(a). The fact that these sections take into account a defendant’s tendency to reoffend does not foreclos

e the possibility that other portions of the sentencing act may also re

late
to recidivism. See
, e .g. , Te nn. Code Ann. 40-35-114(1) (allowing the trial court to enhance the defendant’s sentence based upon its finding that the defenda nt has prior convic

tions in addition to those necessary to establish the sentencing range ). In this respect, we conclude that section 40-35- 120 is a recidivist sta

tute because it imposes a sentence of life imprisonment without the possibility of parole based upon thedefendant’s previous commission of cert ain violent offen

ses in addition to the triggering offense, thereby looking to the defendant’s status as a criminal repeater.

Fin all y, the defendant lik

ens his case to United States v. Rebmann , 226 F.3d 521, 524-25 ( 6th Cir. 2000), which applied Apprendi and held that the fact that a death resulted from drug distribution, which cou ld e nha nce t he d efen dan t’s sen ten ce ab ove the max imu m of twe nty y ears to life imprisonment,

was an element of the offense and must be proven beyond a reasonable doubt. The defendant’s reliance upon Rebmannis misplaced becau se the enhancing

fact in that case

was not a prior conviction and, thus, did not fall into the exception for prior con vic tio ns c reat ed b y Apprendi in response to Alamendarez-Torres . Furthermore, in Rebmann , the court emphasizedthat the statute in question allowed the trial court to determine t h at a deat h res ult ed fr om d rug d ist rib uti on b y a preponderance

o f the evidence standard. The court observed that based upon the evidence in the
case, elevating the standard to that of beyond a reasonable doub

t could have affe

cted the outcome of the case. Rebmann
, 226 F.3d at 522. In this respect, under the repeat violent offender statute, the trial court must find “be

yond a rea

sonable doubt that t

he defendant is a

repeat v io lent offender” before it may impose a life sentence. Tenn. Code Ann. § 40-35-120(g). Thus, the defendant has failedto prove that the presentment in this case was insufficient because it failed to allege his 1987 rape conviction a

s an element of the

offenses.

II. SUFFICIENCY OF THE EVIDENCE

The d efendant contends that the evidence is insufficient to support his convictions for aggravated

rape. Heargues that his c onvictions are ba

sed solely upon the victim’s uncorroborated testimony, which

is so unreliable and contradictory that it provides an unsafe basis f

or the verdict. The state conten

ds that the evidenc

e is sufficient.-12-

Our standar d of review when the defendant questions the sufficiency of the e vidence on appeal is “whether, after viewing the ev idence in the light most favorable to the prosecution, any rational trier of fact co

uld have found the

essential elemen

ts of the crime bey

ond a reasonable doubt.” Jackson v. Virgini a , 443 U.S. 307, 319, 99

S. Ct. 2781, 2789 (1979). This means that we do not reweigh the evidence but presume that the jury has resolved all conflicts in the testimony and drawn all reasonable inferences from the evidence in favor of the state. See Statev. Sheffield , 676 S.W.2d 542, 547 (Tenn. 1984); State v. Ca bbage , 571 S.W.2d 832, 835 (Tenn. 1978).

“Aggravated

rape is unlawful sexual penetration of a victim by a defendant or the defenda nt by a victim accompanied by

. . . [f]orce or coercion . . . used to accomplish the act and the defendant is armed with a weapon . . . .” Tenn. Code Ann. § 39-13-502(a)(1). Sexua l penetratio

n includes sexual intercourse and fellatio. Tenn. Code Ann. § 39-13-501(7).

Taken in the light most fa vorable to the state, the proof at trial reveals that af

ter driving past the victim several times, the defendant got out of his car and ordered

her into the car while wielding

a knife. The victim

testified that she got into the car because she believed that the defendant would kill her if she refused.

The defe ndant beg an driving

, pulled hi s shorts do

wn, and de

manded or

al sex. The victim said that she

complied with

this order becau

se he told he

r that if sh e perfor med oral s

ex, she would not be hurt. While the victim performed oral sex upon the de

fendant, he held

her neck withone hand and continued to hold the knife. When she refused to continue, the defendant ordered her to lock the car door, stopped the car, got out, pulled her shorts down, and penetrated her vagina withhis penis. He ejac

ulated on the passe

nger’s seat. A

fter raping th

e v ictim, the defend

ant told her to get out of the car, and he drov e away. Th

e victim memorized th

e defendant’s li

cense plate number and subsequently identified the car the defendant was driving , as well as the defendant himself, from a photograph array. Mr. Mason, Officer McCarter, and Detective Clowers, all of whomencountered the victim soon after the offenses, described her as ver y ups et or crying. Jack Price tes tified that the victim sounded as if she were crying on the audio tape of the 911 cal l reporting the rapes.

The defendant contends that because the victim’s testimony is uncorroborated and contradictory

, it cannot support h

is convictions. He argues that no physical evidence links him to the rapes or

even proves that a rape occurred. He claims that instead, the lack of physical evidence

–specifically

the TBI’s ina

bility to obtai

n a DNA profile f

rom sperm collect

e d from the vag inal wash and the victim’s shorts, the ab s ence of the victim’s fingerprints or palm prints in the defendant’s car, and the absence of semen on the fabric from

the passenger’s seat – contradicts the victim’s testimony.

T he defendant also ma

intains that the vic

tim’s testimony

is so contradictor

y that it cons

tit ute s

an u nreliable basis for the verdicts against him. He points to the victim’s reservation about hi s identity as her rapist on the day of trial and her inconsistencies reg arding the time she called he r husband, the time she began walking home, and where she was on Fifth Avenue. He contends that the victim testified that she was on her way home from work when the offenses occurred but that she told Detective Clowers that she was suppos e to work that evening, felt ill, and decided to return-13-

home. He also argues that her testimony that she was afraid of him is belied by her failure to take a different route home once she saw his car several times and her refusal to continue oral sex. He claims that her account of the rape is contradicted by her failure to run home or

to a friend’s hous

e and the fact

that she instead ran to the car of a strange man to seek help. He contends that he r testimonythat he co ntinued to drive, held a kn ife, and held her

head to his crotch

is physically impossible. Fin all y, the defendant contends that on one occasion, the victim said that her attacker ejaculated inside of

her and on another occasion, she said that he ejac

ulated on the passe

nger seat. To the contrary, we have reviewed the rec ord, and it does not support this contention.

The state contends that the jury accredited the victim’s testimony that she had b e en raped. It argues t hat although the

TBI was not a

ble to obtain a DNA pro

filefrom the sperm, the presence of sperm on the victim’ s shorts and in the va ginal wash

corroborates the victim’s accusation of rape. It argues that the victim consistently described her attacker on two occasions and selected his picture from two photograph arrays. It maintains that her credibility was unders core d by h er voluntary admission that she had rese rvati ons about the defendant’s identity on the day of tria l and her subsequent

confirmation that

he was her assailant by again selecting his picture from a photograph

arra y. The state argues that the victim consistently identified the license plate number and described the car the defendant used on the night of the offenses. It contendsthat the testimony of Mr. Mason, Officer McCa rter, and Detective Clowers that the victim was visibly upset on the morning of t h e offenses corroborates her testimony.

Gen eral ly, a defendant may be convicted upon the uncorroborated testimony of one witness. See L etner v. State , 512 S.W.2d 643, 649 (T enn. Crim. App. 1974

); see also Shelley v. Stat e , 9 5 Tenn. 152 , 1 55-56, 31 S.W. 492, 493 (1895) (noting that a victim of incest by force is not an accomplice and t

hat a conviction ma

y rest upon su

ch victim’s uncor

roborated testimo

ny); State v. McKnight
, 900 S.W.2d 36, 48 (Tenn. Crim. App. 1994) (holding that a “defendant can be convicted of simple rape based solely upon testimony of the victim”). Howe ver, exceptional circu mstance s may require this court to discredit a witness’s testimony as a matter of law:

[A]ltho ugh as a ge ner al rule a convict ion may rest

upon the testimony

of a single witness, though it be contradicted by others or appear uncer tain or inconsistent,

the ruledoes not apply if the testimony of such single witness is not of a cog ent and conclusive nature, and “if it is so indefinite, contradictory or unreliable that it would be unsafe to rest a conviction thereon.”

Letner
, 5 12 S .W.2d at 649 (citing 23 C.J.S. Criminal Law § 903 (19)). Furthermore, a witness’s contradictory

statements conce

rning the same f

act act to cancel eac h other if the cont radiction is unexplained and no other evidence exists to corroborate either statement. State v. Matthews , 888 S.W.2d 446, 449-50 (Tenn. Crim. App. 1993).

In this case, the victim’s tes ti mony sufficiently sustains the conviction. Although her testimonycontains inconsistencies, the contradictions do not relate to her account of the of fense s themselves. Her initial uncertainty on the da y of trial about the defendant being the man who-14-

attacked her is explained by

the changes in his appearance in the intervening almost two-year period since the offenses. Regarding the position of the defendant’s hands during the first act of rape, the jury could have reasonably believed that the defendant held the steering wheel and the knife with one hand and the victim’s he ad with the other.

Finall y, the defendant’s contentions regarding the appropriatenes s of the victim’s reactions in light of her fear go to the weight of her t estimony, a
matter solely within the province of the jury. See State v. Pappas , 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987) (holding that the credibility and weight to be given to a witness’s testimony are issues to be resolved by the trier of fac t) . The evide nce is sufficient to support the defendant’s convictions for aggravated rape.

III. IN-COURT IDENT IFICATION

The defendant contends that the trial court er ro neously admitted the victim’s in-court id entification of him as the rapist because the unreliability of that identification rendered it more prejudicial than probative. He argues that this court should view the victim’s in-court identification
to be plain error. The state contends that the defendant has waived this issue by failing to object at trial. Alternatively, it argues that the in-court iden

tification was not

unreliable and th

at the jury c

ould have convictedthe defendant even without the in-court identification based upon the victim’s initial ide nti fic ati on o f th e def end ant in a pho togr aph arra y.

The testimony of t

he victim reveals that when she saw the defendant in the courtroom, she told the victim/witness coordinator that she was not sure that the defendant was the man who raped her. The prosecutor brought this to the court’s and defense counsel’s att ention. Defense counsel agreed that the victim could be shown another printout of the photograph arr ay that did no

t contain writing identifying the picture that the victim had selected previously. In the presence of the prosecutor, defense counse l, and Detective

Clowers, the victi

m agai n selected the defendant’s photograph. Detective Clowers testified that the victim pointed directly to the defendant’s picture and said that she had no doubt that he was the man who raped her. The victim testi fied that the defendant no longer had a mustache or beard, that his hair was thinner, and that he had gained w eight since the time of the off

enses. She said tha

t she looked at the p

hotograph arr

ay again and, at the time of her testimony

, had no doubt that th

e defendant was

the man who raped

her. On crossexamination, she agreed tha t Detective Clowe

rs told her that the

se were the sa

me photograp hs

arra nged in t he s ame ord er as the earl ier arra y.

The defendant neve

r objected to

the victim’s identification of the defendant as her attacker during her testimony. A

party who is

“responsible

for an error or who failed to take whatever action

was reasonably

available to prevent or nulli

fy the harm

ful effect of a

n error” is not entitled to relief. T.R.A.P. 36(a). The defe ndant has w aived the issu e of the admissibility of the victim’s in-court identification by failing to make a contemporaneous objection. See State v. Burt on , 751 S.W.2d 440, 448 (Tenn. Crim. App. 1988). The defendant asks us to consider the i dentification to be

plain error.

Init ial ly, we note that this court will

not review an issue for plain error when the defendant has affirmative ly waived the issue rather than simply failed to object. See State v. Adkisson , 899-15-

S.W.2d 626, 641 (Tenn. Crim. App. 1994) (holding that the court will not determin e plain error when the accused

affirmatively “waived the issue for tactical reasons”); see also State v. Smith , 24 S.W.3d 27 4, 282 (Tenn. 2000) (adopting the considerations in Adkisson ). In this case, the prosecutor

informed the court and defense counsel that the victim had expressed reservations about the defendant b eing her att acker. The prosecutor noted that the state could present the original photograph

array that bore the victim’s initials over the defendant’s photograph and the testimony of Detective Clowers, who was present when the vic tim sel ect ed t he d efen dan t’s pic tur e in tha t ar ray. The prosecutor wanted

to confirm with the victim that the person in the ph

otograph was he

r rapist and then to proceed with the trial. At that point, the defe ndant objected to the state showing the victim the original photograph array with the victim’s ini

tials over the def

endant’s picture . The state proposedto reprint the photograp h array without the initials, which the trial court allowed. The victim then selected

the defendant’s photograph in the presence of defense counsel. The defendant made no ot her o bjection about the victim’s identification. The victim testified and identified the defendant as the rapist. The

defendant initia

lly did not cross-examine the victim about this matter. After the trial court excused the victim, defe nse cou nsel asked the court to allow her to recall the victim because counsel had forgotten to question her

about her identification of the defendant at the
start of trial . Defens e counsel then cross-examined the victim about her doubts upon seeing the defendant in the courtroom and what Detective Clowers told her during the subsequent photograph

arra y. Because the defendant assented to the state showing the victim the photograph array after the victim’s initials were removed, the defendant has affirmatively waived this issue. In any event, we notethat counsel made

a thorough cros s-examination of the victim that would bear on the reliability of her in-court identification. We see no plain error.

IV. ADMISS IBILITY O F THE VICTI M’S PRIOR ACC USATION O F RAPE

The defendant contends that the trial court violated his right to due process by excluding evidence that three years bef ore the present o

ffenses, the vic

tim falsely to

ld family members that she had been raped in order to provide an excuse for coming home late. He argues that this evidence

is
notprohibited by

Rule 412, Tenn. R. Evid., because it illustrates the victim’s untruthfulness rather than her past sexual beh

avior. He maintai

ns that the victim’s previous false accusation of ra pe is relevant to her credibility

and to her motive to lie about the present offenses. The state contends that the alleged

prior false accusation is irrelevant and constitutes inadmissible propensity evidence. See Tenn R. Evid. 401, 404(b).

On the morning of the original trial date, the state movedthe court to exclude any questions concerning the victim’s prior sexual behavior under

Rule 412, Tenn. R. Evid., because the defendant had not complied with

the notice requirements of that rule. The defendant responded that he did not intend to ask about the victim’s prior sexual encounters but that he did intend to ask about t he victim’s prior claim

that she had beenraped and subseq uent recanting

of that claim, arg

uing that this related to the victim’s credibility. Defense counsel stated that she learned of

this false claim from several sour ces and that the victim made this claim to get out of trouble when she did not arrive home on time and then re canted before the police were called. Defense counsel arg ued that the defendant gave no notice under Rule 412 because this evidence illustrated the victim’s propensity-16-

to lie rather than her sexual behavior. The state responded that even if not covered by Rule 412, Rule 404(b), Tenn. R. Evid., excluded the evidence because its purpose was to show the witness’s propensity

for a given character trait. The trial court ruled that the evidence was inadmissible due to the defendant’s failure to comply with Rule 412.

Fol lowing a continuance, the defendant appeared again for trial and moved the court t o reconsider

it s earlier ruling, contending that he had now complied with the Rule 412 notice requirements

and that the victim’ s prior false cla imof rape was relev

ant to her credib

ility. Defe

nse counsel stated that the victim’s family members said that she made this prior false accusation when she was seventeen or eighteen years old but that the six-y ear time lapse since th

e false accusa

tion did not exclude the information because the victim could still have thesame pattern of behavior. The
state argued that the

prior false clai

m was irrelevant

and that, if considered a prior bad act by the victim, it would not c

ome in under Rule

404(b), Tenn. R. Evid., because it did not prove anything
ot her than propensity. It argued that in order for the prior false accusation to be admissible under Rule 6 08, Tenn. R. Evid., the court mu st hold a hearing

to determine if a r

easonable fac

tual basis exists for the inquiry and

if the accusation has probative value. The court stated that its earlier ruling would stand.

The resolution of this issue involves the interplay between the evidentiary rules governing relevance and th ose govern ing the impeachment of witnesses. We begin by noting that the defendant’s constitutional right to confron t the witnesses ag

ainst him includes the right to conduct meaningful cross-examination. Pennsylvani a v. Ritchie

, 480 U.S. 39, 51, 107 S. Ct. 989, 998 (1987); State v. Brown , 29 S.W.3d 427, 431 (Tenn. 2000); State v. Middlebrooks , 840 S.W.2d 317, 332 (Tenn. 1992). Denial of the defendant’s right to effective cross-examination is “‘constitutional

error of the first

magnitude’” and may violate the defendant’s right to a fair trial. State v. Hill , 598 S.W.2d 81 5, 819 (Tenn . Crim. App . 1980) (qu oting Davis v. Alaska , 415 U.S. 308, 318, 94 S. Ct. 1105, 1111 (1974)). “The propriety, scope , mann er and control of the cross-examination of witnesses, however , rests within the sound discretion of the trial court.” State v. Dishman , 915 S.W.2d 458, 463 (Tenn. Cri m. App. 1995); Cof

fee v. State , 188 Tenn. 1, 4, 216 S.W.2d 702, 703 (1948). Furthermore, “a defendant’s right to confrontation does not preclude a trial court from imposing limits upon cross-e xamination which tak

e into account s

uch fa ctors as harassm

ent, prejudice, issue confrontation, witnes s sa fety, or merely repe titive or marginally relevant interrogation.” State v. Reid, 882 S.W.2d 423, 430 (Tenn. Crim. App. 1994). This court will not disturb the limits that a trial cour t h as placed upon cross-examination unless the court has unreasonably

restricted the right. Dishman , 915 S.W.2d at 463; Statev. Fowler , 213 Tenn. 239, 253, 373 S.W.2d 460, 466 (1963).

We also recognize that the“Sixth Amendment and the Due Process Clause of the Fourteenth Amendment

clearly guarantee a

criminal defend

ant the right to pr

esent a defense which includes the right to present witnesses favorable to the defense.” Brown , 29 S.W.3d at 432; Chambers v. Mississippi
, 410 U.S. 284, 302, 93 S. Ct. 1038, 1049 (1973) (“Few rights are more fundamental than that of an accused to

present wit nesses in h is own defen se.”) Altho ugh this right is critical, at times it “‘must yield to other leg iti mate interests in the criminal trial process,’” including “‘established1 Evidence of specific instances of a victim’s sexual behavior can be admitted if the defend ant follows the prescribed pro cedures in subsection (d) an d if the evidence is:

(1) Requir

ed by the Tenn

essee or Uni

ted Stat es Consti

tution , or

(2) Offered by

the defe ndant on t

he issu e of credibility of t

he victim, provided the prosecuto r or victim has presented evidence as to the victim’s s

exual behavior and only to the extent needed to rebut the specifi c evidence

present ed by the pr

osecutor or victi

m, or

(3) If t he sexual

behavior w as with

the accus

ed, on the

issue of consent, or

(4) If t he sexual

behavior w as with

persons ot

her than the accus

ed, (i) to rebut or explain scienti fic or medical evidence, or (ii) to prove or e

xplain t he source of

semen, i njury, disease , or knowledge of sexual

matters , or (iii) to prove cons

ent if the evi dence is of

a patter n of sexual behavior so distinctive and so closel

y resembl

ing the accused’ s versi

on of the alleged en counter with the victim that

it tends t o prove that

the victi m consented to the a

ct charged or behaved in such a mann er as to lead th e defenda nt reasonab ly to belie ve that t he victim

consente d.

Tenn. R . Evid. 412 (c).

-17- rules of procedure a

nd evidence desi

gned to assure both fair

ness and reliabil

ity in the ascertainment of guilt and innocence.’” Brown , 29 S.W.3d at 432 (quoting Chambers , 410 U.S. at 295, 302, 93 S. C t. at 1046, 1049). With these rights in mind, we turn to the evidentiary rules that gove rn th e admission of an alleged prior false accusation of rape made by the victim in an agg ravated rape

trial.

A. Inadmissibility of a Rape Victim’s Sexual Behavior

Gen eral ly, evidenceof specific instances of an aggravated rape victim’s sexual behavior are inadmissible. Tenn. R. Evid. 412(c). 1 The sexual behavior is “sexual activity of the alleged victim other than the sexual act at issue in the case.” Tenn. R. Evid. 412(a). “This broad definition ‘deals withsexual intercourse as well as every other variety of sexual expression.’” State v. Sheline
, 955 S.W.2d 42, 47 n.6 (Tenn. 1997) (considering the victim’s kissing another person on the evening of the offense under Ru

le 412) (quoting

Neil P. Cohen, et al., Tennessee Law of Evidence § 412.2, at 241 (3d ed. 1995)) . The defendant contends and, at oral argument, the state conceded that the evidence that the defendant sought to introduce did not constitute “sexual behavior” as contemplated under Rule 412. We

agree. Thus, the trial cou rt erred in using

Rule 412 to exclude th

e evidence in question.

B. Proof of Other Crimes, Wrongs, or

Acts to Show Actions

in Conformity

Gen eral ly, a party may

not introduce evid

ence of an in

dividu al’s character or a particular character trait in order to prove that the individual acted in conformity with that character or trait at-18-

a certain time. Ten n. R. Evid. 404(a). I n other words, a pa

rty may not use characte

r evidence to show that a person acted i n a par ticular way because he or she had a propensity to do so. State v. Moore
, 6 S.W.3d 235, 239 (Tenn. 19 99); S tate v. Parton , 694 S.W.2d 299, 304 (Tenn. 1985) (observing that evidence of another crime is not admissible to show that the def e ndant is the kind of person who woul d tend to commit the of fense); State v. Tizard , 897 S.W.2d 732, 743 (Tenn. Crim

. App. 19 94) (noting that character evidence may not be used to show a propensity to act). Sim ila rly, evidence “o f other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformit y with the character trait.” Tenn. R. Evid. 404(b). However, this evidence may be admitted for oth

er purposes if re

levant to some matte

r actually in issue in the case on trial and if its probative value is not outweighed by the dange r of its prejudicial effect. Tenn. R. Evid. 404(b); Howell , 868 S.W.2d at 254. Issues to which such evidence may be relevant include identity, motive, common scheme or plan, intent or the rebuttal of accident or mistake defenses. Tenn.

R. Evid. 404, Advisor

y Commission Comm

ent; P arton , 694 S .W.2d at 302. Admissib ility of other crimes, wro ngs or acts is also contingent upon thetrial court finding by clear and convincing

evidence that the prior crime, wrong or act was actually committed. Parton
, 694 S.W.2d at 303; see , e.g. , State v. Holman , 611 S.W.2d 411, 412-13 (Tenn. 1981). The jury may consider evidence admitted under 404(b) as substantive evidence at trial.

Before the trial court ma

y permit evid

ence of a prior c

rime, wrong or a

ct, t he following procedures must b

e met:

(1) The court upon request must hold a hearing outside of the jury’s pre sence;

(2) The court must dete

rmine that a reas

onable factual b

asis exists for the inq uir y; and

(3) The court

must exclude the evi

dence if its

probative value is outweighed by the danger of unfair prejudice.

Tenn. R. Evid. 404(b). Provided that the trial court ha

s complied with

these procedures, this court will not overturn the trial cour t’s decision to admit or exclude evidence under Rule 404(b), Tenn. R. Evid., absent an abuse of discretion. State v. DuBose , 953 S.W.2d 649, 6 52 (Tenn. 199 7). “However, in view of the strict procedural requirements of Rule 404(b), the decision of the trial court should be afforded no deference unless there has been substantial compliance with the procedural requirements of the Rule.” Id.

In order to prove a prior bad act, the party seeking to introduce the evidence must show that the evidence is r

elevant to some material issue at trial. The defendant contends that the victim’s prior false accusation

of rape is relevan

t to her credibilit

y and that it s

hows her motive to li

e in this

case. Essentially, he argues that the fact that the victim had previously lied about being raped shows that she is lying this time as well. Use of a bad act t o show that the act

or acted in confo

rmity with that act in the present case is typically the very type of evidence

that Rule 404(b) se

eks to exclude. Courts gene ral ly vi ew t his type of p rop ens ity evi dence with disdai n because of its te

ndency to-19-

prejudice the jury against the wi tne ss, and they

approach this ev

idence from the p

osition that it should be excluded. See State v. Rounsaville , 701 S.W.2d 817, 820 (Tenn. 1985) (holding that the “starting point in conside ring test imony regarding prior offenses, when off ered as substantive evidence of guilt and not merely for purposes of impeachme nt, is a rule of exclusion”).

Because of the unique role that the credibili

ty of the vic

tim plays in ma

ny sexual c

rimes
, some jurisdictions have effectively created a special exception to their evidentiary

rules excluding extrinsic evidence of prio

r bad acts in orde

r to admit evidence that the victim has p reviously f

alsely accused someone of a sexual crime. See West v. State , 719 S.W.2d 684, 687 (Ark. 1986) (holding that evidence of prio

r false claim to be

admissible to

discredit the credibility

of the victim as we

ll

as to raise doubt about the truth of the current charg es); People v. Hurlburt
, 333 P.2d 82, 85-87 (C al. Dist. Ct. App. 1958) (adv ocating a liber

al r u le for admitting e

vidence of the vic

tim’s prior false accusations of sexual assault in orde r for the jur y to have suf ficient informat

ion to render a jus

t verdict); Smithv. State
, 377 S.E.2d 158, 160 (Ga. 1989) (holding that prior false accusations of sexual offenses are admissible to attack the victim’s credibility and substantively to prove that the present offense did not ha

ppen); People v. Evans , 40 N.W. 473, 478 (Mich. 1888) (holding that evidence of prior false accusations shows that the victim has a “morbid condition of mind and bod y”

an d helps explain the curre nt charges); Miller v. State , 779 P.2d 87, 90 (Nev. 1989) (creating an exception to r ule prohibiting extrins ic evidence if th

e witness denies f

abrication on cr

ossexamination for evidence of prior false accusati

ons in sexual assault

cases); Statev. Izzi , 348 A.2d 371, 372-73 (R.I. 1975) (holding that the defendant could present extrinsic evidence of similar false accusations against other attendants at the resident i al mental health f

acility); Clinebell v. Commonwealth
, 368 S.E.2d 263, 266 (Va. 1988) (holding that if the vi c tim denies making prior false accusations of sexual assault on cross-examination, the defendant may present extrinsic proof of the accusations); Harriett R. Galvin, Shielding Rape Victims in the State and Federal Courts: A Proposal for the Second Decade , 70 Minn. L. Rev. 763, 861 (1986) (explaining that some courts permit the “false allegation evidence . . . not . . . to impeach the complainant’s general char acter fo r truthfulness,

but instead . . . to show a propensity to charge rape fa lsely .. . [t

hereby] simp

ly ig nor[ing] the fact that admitting evidence under this theory violates the gene ral rule fo rbiddin g evidence of character t

o prove conformin

g conduct”); see also Covington v. State , 703 P.2d 436, 441-42, modified on other grounds on rehearing 711 P.2d 1183 (Alaska Ct. App. 1985) (holding that defen dant see king to present extrinsic evidence of the victim’s prior false accusations of sexual assault must first obtain a jury

-out determinatio

n that the prior ac

cusations are fa

lse); State v. Barber
, 766 P.2d 1288, 1290 (Kan. Ct. App. 1989) (holding that the defendant can cros s-examine victim about prior false accusation, and if the victim denies making the accusation, the defendant may put

on evidence reg

arding the acc

usation); Beck v. State , 824 P.2d 385, 388 (Okla. Crim. App. 1991) (extending the holding in Woods v. State , 657 P.2d 180, 182 ( Okla. C rim. App. 1983), to introduction of extrinsic evidence of a prior false accusation of rape if the victim denies the falsity of the accus ation on cross-examination) . These jurisdictions have primarily focused upon the importance of the victim’s credibility when he or she is the only witness aside from the defendant who can testify

to the events surrounding the offense. Hurlburt
, 333 P.2d at 84; Miller , 779 P.2d at 89. Some jurisdictions have determined that evidence of prior fals e accusations of sexual assault-20-

goes to the victim’s state of mind or motive to make the present charges. West , 719 S.W.2d at 687; Evans , 40 N.W. at 478.

The Texas Cour t of Criminal Appeals has strongly rejected the creation of a per se sex offense exception to the exclusion of extrinsic evidence o f specific conduct for the purpose of
atta cking th e victim’s credibility. Lopez v. State , 18 S.W.3d 220, 225 (Tex. Crim. App. 2000) (ana lyz ing, pursuan t to Rule 608(b), the admission of extrinsic evidence of the victim’s prior, allegedly false accusation of physical abuse). The court reasoned that credibility “of a witness is no more important in sex offenses than in any other case”:

Any case can involve a

swearing matc

h between two witn

esses: an assault in which the defendant and th

e victim are alone

and the defenda

nt threatens the v

ictim with imminent bodily injury; a kidnapping in which the defenda nt restrains the victim

in

an isolated location a

nd the victim event

ually esca pes; a n attempted theft in which the defendant and the victim are alone and the defendant grabs the victim’s purse but is unable to get it away from the victim. In each of these examples, there is no ph ysical evidence and the

re are no additio

nal witnesses to the

crime. In co

ntr ast , although some sex offenses h av e no corroborating physical evidence, many sex offenses do–such as evidence of victim penetration or traces of the attacker’s DNA. So the complainant’s and the defendant’s credibility are no more critical issues in sex offense cases than in any other ty pe of case.

Id. at 224. Furthermore, it viewed the emotional nature of sex offense cases to provide more reason
notto a dmit extri nsic evidence and risk confusing the jury with collateral fac ts. Id. Finally, it reasoned that the “probative value of such evidence flows from the inference it raises as to t h e complainant’s propensity t o make false

claims . . . .” Id. at 225; see Hughes v. Raines , 641 F.2d 790, 793 (9th Cir. 1981) (observing that presenting evidence of a prior false accusation of rape is asking the jury to inf

er that because the

victim made a fals

e accusation be

fore, she is makin

g a false accusation now); State v. Ellsworth , 709 A.2d 768, 772-73 (N.H. 1998) (reasoning that because no clear connection between the motives for the prior accusations of sexual voyeurism and theft and the current charg

e of sexual assault

exists, the only logical relevance of the prior accusatio

ns relate to th e victim’s propensity to lie in violation of Rule 404(b)). Thus, the court rejected a per se sex offense exception to the rule against the admission of extrinsic evidence of specific conduct in favor of a case-by- case examination of the evidence to determine if the Confrontation Clause demanded its admission. Id.

The majority of j urisdic tions that have addressed this issue limit the defendant’s use of evidence of a prior false

accusation to

impeachment similar to Rule 608(b), Tenn. R. Evid. These jurisdictions permit

the defendant to impeach the victim’s credibility with the prior false accusation by cross-examining the victim about it provided the defendant can show that the accusation is

false butdo not permit the defendant to produce substantive evidence of the prior false accusation. Hughes v. Raines , 641 F.2d 790, 792-93 (9th Cir. 1981) (excluding cross-examination of victim on alleged prior false accusation of rape because it amounted to a

general cre

dibility atta

ck on the basis-21-

of an unrelated incident and there was no convincing proof that the accusation was false); Ex parte Lloyd
, 580 So. 2d 1374, 1376 (Ala. 1991) (holding that defendant could cross-examine victim about admitte dly

false prior charges and threats regarding sexual crimes bec ause they were relev

ant t o whether the defendant committed sodomy or if the v ictim was cont inuing a habit of m aking false accusations in order to manipul ate others); People v. Sh

epherd
, 551 P.2d 210, 212-13 (Colo. Ct. App. 1976) (holding that

defendant may

cross-examine the

victim about a prior false accusation of sexual assault if the defendant can show t hat the accusation was f

alse); State v. Kelley , 643 A.2d 854, 857 (Conn. 1994) (holding that without evidence that the prior accusation of sexual assault was false, the proposedcross-examination of the victim on the accusation w as not relevant) ; Lawrence

v. United States , 482 A.2d 374, 377 (D.C. 1984) (holding that Conf

rontation Clause c

ompels crossexamination of

key prosecution witness about prior false accusations of sexual relations to give jury crucial evidence about the witness’s credibi lity); People v. Alexander , 452 N.E.2d 591, 594 (Ill. App. Ct. 1983) (holdin

g t hat defendant could not cross-examine the victim about an alleged prior false accusation of ra

pe because his in

abili ty to show that the acc

usation was false

rendered it irrelevant); State v. Cox , 468 A.2 d 319, 3 23-24 (Md. Ct. Spec. App. 1983) (holding that the defendant could

cross-examine the

victim about a prior accusation but that he would be bound by the victim’s answer) ; Commonwealth v. Bohannon , 378 N.E.2d 987, 991 (Mass. 1978) (holding that defendant should have been allowed to cross-examine victim about prior false accusation of rape because it might have dama

ged the victim’s

credibility

and the defendant

proved in an offer of proof that the accusation w

as false); State v. Caswell , 320 N.W.2d 417, 419 (Minn. 198 2) (holding that the defendant should

have been allowe

d to impeach the victim

with a prior false

accusation but that failure to admit this evidenc e was harmless

beyond a reasonable doubt because of the d

issimilarity betweenthe false claim a nd the current ch

arges and the s

trength of the st

ate’s evidence

); State v. Anderson
, 686 P.2d 193, 199-200 (Mont. 1984) (holding that although vict im can be cross-examined about specific conduct if it goes to her untruthfulness, the fact that the prior accus ation of sexual misconduct

was dismissed does not mean that it was false) ; State v. Scott , 828 P.2d 958, 963 (N .M. Ct. App. 1991) (holding that the defendant may cross-examine victim about a prior

false accusation of rape in order to impeach the witness but that the trial court properly excluded extrinsic evidence); Statev. Baron , 292 S.E.2d 741, 743 (N.C. Ct. App. 1982) (holding that the defendant should have been allowed to

impeach the victim by cross-examining her about prior false accusations of nudity and sexual impropriety

to encourage t

he jury to dis

credit her testim

ony); State v. Kringstad , 353 N.W.2d 302, 311 (N.D. 1984) (holding that defendant could cross-examine the victim about a prior false accusation of rape against her ex-husband if false but that the unsubstantiated testimony of the ex-husband was not sufficien t to prove falsity

); State v. Boggs , 588 N.E.2d 813, 816-17 (Ohio 1992) (holding that the defendant may cross-examine the victim about prior false accusations of rape but is bound by the victim’ s answers); State v. LeCla ir , 730 P.2d 609, 615 (O

r. Ct. App. 1986) (holding that the Confrontation C

lause requires t

hat a defendant be allowed to cross-examine a victim about prior false accusations of rape despite Oregon’s evidentiary rule prohibiting extrinsic evidence or cross-examination of a witness about speci fic instances of

conduct to attack

credibility

); State v. Boiter
, 396 S.E.2d 364, 365 ( S.C. 1990) (holding

that a defendan

t ma y cross-examine the vic tim about a prior false accusati

on of sexual abuse if the trial court determines that the accusation was false, not remote, and similar enough to the current cha rges to be relevant); State v. Sieler , 397 N.W.2d 89, 92 (S.D. 1986) (holding that the defendant can cross-examine the victim

about a prior-22-

accusation of a sexual offense if it was false but that mere denial or arguable falsity of the accusation is not enough); Lopez , 18 S.W.3d at 225 (holding that evidentiary ru le barri ng cross-examination of a witness about specific conduct for the p urpose of attacking the witness’s credibility excludes cross-examination about prior false accusations unless the pr obative value of the evidence outweighs the risks of juror con

fusion); State v

. Olson , 508 N.W.2d 616, 620 (Wis. Ct. App. 1993) (holding that a defendant may cross-examine the vi ct im about a prior false accusation of rape but that the C onfro ntation Clause does not com pel the admission of

extrinsic evidenc

e); see State v. Schwartz mille r , 685 P.2d 830, 833 (Id. 1984) (holding that evidence of prior false accusation of similarconduct is admissib le regarding

the victim’s c

r edibility but the accusation must be “demonstrably

false”); State v. Walton
, 715 N.E.2d 824, 827 (Ind. 1999) (creating an exception for demonstrably

false prior accusations of rape to Ind. E

vid. R. 608(b), which prohibits impeachment of a witness’s cred

ibility by inquiry into s

pecific instanc

es of conduct or

proof by extrinsic evidence); People v. Lippert , 525 N.Y.S.2d 390, 391 (N.Y. App. Div. 1988) (holding that the trial court did not abuse its discretion in refusing to allow the defendant to cross-examine the victim a bout prior accusations of rape when no b asis for believing

those accusation

s to be f alse existed); State v. Demos
, 619 P.2d 968, 970 (Wash. 1980) (declining to reac h issue of whether rape sh

ield statute barred attack on the victim’s cr edibility bas ed upon two argu

ably false prior rape acc

usations because the defendant’s

failure to prove

that the evidence

was false rende

red it irrelevan

t)

.

We note that our supre

me court has sound

ly rejecte d a sex offense

exception to rule

404(b) regarding the state’s ability

to admit evidence of prior crimes or bad acts against the defendant. State

v. Rickman , 8 76 S.W.2d 824, 829 (Tenn. 1994) (holding that the “general rule, which excludes evidence of other crimes o r bad acts as irrelevant a

nd prejudicial wh

en the defendan

t is on trial for

a crime or act of th

e same charact

er remains sound”

); State v. Burchfield
, 664 S.W.2d 284, 287 (Tenn. 1984). The court stressed that the “general rule excluding evidence of other crimes is based

on the recognition

that such evidenc

e easily re sults in a jury improperly convicting a defendant

for his or her bad character or apparent propensity or d isposition to commit a crime regardless of the strength of the evidence concerning the offense on trial.” Ri ckman , 876 S .W.2d at 828. Thus, evidence of sex crimes and acts by the defendant not charged in the

charging inst

rument, if admissible

at all, must be relevant to identity, motive, common scheme or plan, intent or the rebuttal of accident or mistake defenses. Although the evidence in this case goes to the c redib ility of the victim rather thanthe defendant, we see no reason to create a per se sex crime exception because the risk of alienating or confusing the jury is the same.

In this respect, the

federal courts

have held that sub stantive evidenc e of a prior fals

e accusation of a s

exual offense

by the victim o

f a sexual crime

must be relevant to a fact at issue at trial in order to be admissible. United States v. Stamper
, 766 F. Supp. 1396, 1401 (W.D.N.C. 1991); aff’d In re One Fe

male Juvenile Victim

, 959 F.2d 231 (4th C

ir. 1992); see Redmond v. Kingston, Warden
, 240 F.3d 590, 593 (7th Cir. 2001). This view comports with our established case

law under Rule 404(b), Tenn. R. Evid., which per mits evidenc e of a prior bad act if it is relevant to a fact at issue at trial such as motive, identity, common scheme or plan, intent or the rebuttal of accident

or mistake defe nses. Tenn. R. Evid. 404, A dvisory Commis sion Comment; State v. Parton , 694 S.W.2d 299, 302 (Tenn. 1985). In Stamper
, the court held tha t evidence of a r

ape victim’s prior

false-23-

accusation of

rape falls beyond

that evidence proscribed by Rule 404(b), Fed. R. Evid., because the defendant is not seeking merely to show the victim’s propensity to f abricate the present

offense but
wants to show the victim’s “ulterior motive a

nd plan.” 766 F. Sup

p. at 1401. In th

at case , the defendant,

charg ed with sta

tutory rape

, sought to cross-

examine the victim a

nd present extrinsic evidence to prove that in the past, the victim had falsely

accused three

adult men of sexual a

buse in order to move from the home of one biological parent to the other and back agai n and to achi eve ot h er personal goals . The court noted t hat the “‘exposure

of a witness’ motiv

ation in testify

ing is

a proper and important function of the co nstitution ally protected right of cross-examination.’” Id.
at 1400 (quot ing Davis v. Alaska , 415 U.S. 308, 316-17, 94 S. Ct. 1105, 1110 (1974)). Noting the lack of physical

evidence of ra

pe, the court obse

rved that the vict

imwas a crucial or key

witness in the state’s case against the defendant. Id. Thu s, the court h eld that in “order to confront the complainant

effectively

, to elu cid ate the fact s an d le gal i ssu es h ere i n qu est ion ful ly, and to present

a defense in a constitutionally viable trial, Defendant must be all owed to set before the jury the proffered evidence of ulterior motives of the complainant.” Id. Distinguishing th is case from those in which the defend

ant sought only

to impe ach the victim’s c redibility w

ith the prior false accusation, the court

held that the defendant “is entitled to offer the evid

ence necessar

y to prove his theory of the case by showing that complainant’s charge s against him did not evince a single isolated instance of manipulative behavior, butrather were pa rt of an ongoing

scheme or, at lea

st, a scheme revealed by the like motives and modus operandi of schemes past.” Id. at 1402. The court held the evidence admissible under Rule 404(b), Fed. R. Evid. Id. at 1406.

Sim ila rly, in Redmond , the court observ ed that the probat

ive value of showi

n g a past lie about rape to

show that the victim was currently lying wa s outweighed by the prejudicial effect of telling the jury that

the victim “made such a

serious charge falsely.” 240 F.3d at 593. On the other hand, proving prior false accusations in order to show the victim’s motive of getting attention was
notprohibited by evidentiary rules preve nting proof of spe cific inst ances of cond uct through extrinsi c evidence. Id. Even federal c ases discussing a

victim’s prior fa

lse accusation f

rom th e perspective of cro ss-exami nation rather than substantive evidence have noted that the evidentiary rules e xhibit a disdain for the use of specific bad acts to show conforming conduct in the presen t

case. See Boggs v. Collins , 226 F.3d 728, 744 (6th Cir. 2000 ) (obser ving that Rules 404(b) and 608(b), Fed. R. Evid., show a disi ncl ination to use prior bad acts to prove conforming conduct); Hughes , 641 F.2d at 793 (noting that the “rules of evidence reflect a general reluctance to draw an inferencethat because a person may have acted wrongfully on one occasion, he or she also acted wrongfully

on the occasion at issue”). Thus, t he fe deral courts have held that the Confrontation Clause does not require that the defendant be allowed to cross-examine the victim about a p

rior false accusation in order to attack the victim’s credibility generally as opposed to revealing the victim’s motivations for accusing the defendant in the present case. Boggs , 226 F.3d at 739-4 0; United States

v. Bartlett , 856 F.2d 1071,108 9 (8th Cir. 1988); Hughes , 641 F.2d at 793. Like any other prior wrong or act, a victim’s prior false accusation of a sexual offense must relate to a fact at issue at trial in order to be admissible substantively. Otherwise, the relevance of the ev idence stems from its tendency to show that the victim has a propensity to lie, a purpose that directly c onflicts with Rule 404(b), Tenn. R. Evid.-24-

In the present case, the

defendant

apparently seeks to fit the evidence into 404(b) by arguing that it reveals the victim’s motive to lie about rape. With regard to this basis for admissibility, we
notethat at tr

ial, t he defendant only argued that the prior false a ccusation related to the victim’s cred ibi lit y:

We have said a ll along t hat this goes to her credibility, whether or not she is ly ing that this man raped her, that she encountered this man at all. It goes to her cred ibi lit y. And the jury is going to want to know, why w

ould a woman lie about that. Women don’t lie about suc

h things.

We have information

that she has told the

same lie before

to get o ut of trouble, to keep some–to–wh en she came in

after curfew, and her

mother was going
to ground her. Well

, I was raped. We think the jury needs to know that she responds
to coming in like–she was out at four in the morning. We have information that her husband thought th

at she was at work

until midnight.

A lot–this whole

case is going t

o depend on whethe

r this woman is believab

le

or not. And this is a central issue. Would a woman lie ab out this? This woman did. It go es t o he r cre dib ili ty.

The defendant may not argue that evidence is admissible to show a witness’s credibility at trial and then add another basis, that the evidence goes to show the witness’s motive, on appeal. See State v. Miller , 668 S.W.2d 281, 285 (Tenn. 1984).

Before trial, the defendant did not argue that a basis other than credibility existed for admitting the evidenceeven when the state argued that the evidence was inadmissible under

Rule 404(b), Tenn. R. Evid., because it did not prove anything other than propensity. The d efendan t contended

in his motion f

or a new trial that the trial court erroneously suppressed evidence of the victi m’s prior false accusation of rape because that evidence “went to the hear t of Ms. Harrison’ s credibility.” Because the defendant did not raise 404(b) as a bas is for the admissibility of the evidence at

trial, the trial court did

not determine whe

ther the evidenc

e was admissible f

or a purpose other than to show propensity and did not weigh the probative value of the evidence when used for this purpose

against the danger of unfair prejudice. SeeTenn. R. Evid. 404(b). Other than the fact that the hearing on

thi s ma tte r to ok p lac e ou tsi de t he p res ence of t he j ury, there was no compliance withthe procedural a

spects of Rule

404(b). We do not believe that the defendant can now rely on a Rule 404(b) argument. See T.R.A.P. 36(a).

Furthermore, we note that the defendant failed to present clear and convincing proof of the prior false accusation. The defendant presented no proof of the prior false accusation other than his
attorn ey’s bare a llegation that the victim’s family

members said that s

he made this prior

false accusation when she was seventeen or eighteen yea rs old. In spite of the

state’s objection that

this evidence violated 404(b) at both pre trial hearings , the defendant d id not attempt to

have the family members testify abo

ut the prior false

accusation. Where “there was a hearing outside the presence-25-

of the jury, but the trial court failed to determine and state on the record the mater ial issue to which the evidence was re

levant and also fa

ile d to find t hat the probative value of the evidence was not outweighed

by the danger of unfair prejudice, the determination of admissibility will be made by the reviewing court on the evidence presented at the jury out hearing .” Dubose , 953 S.W.2d at 653. Here, the record is devoid of competent evidence clearly and convincingly showing that the prior false accusation of rape occurred and from which the tri

al court or this co

urt could conclude that the evidence was admissible under Rule 404(b).

Nevertheless,

even looking to the merits of the defendant’s argument on appeal, we do not believe he can prevail under Rule 404(b). Before ev idence of a nother crime, act or wrong can be introducedto prove the actor’ s motive in committing the same or similar act in the present case, the motive must be relevant to prove the act. Neil P. Cohen, et al., Tennessee Law of Evidence § 404[9],
at 4 -84 (4th ed. 2000). The defendant c ontends that three

years bef ore the present o

ffense s, th e victim told family members that she had been raped in order to

provide an excuse

for returning h

ome after her curfew and to avoid be ing grounded. He claims that at the time the present offenses allegedly occurred, the victim was angry with her husband bec ause he wanted to smoke marijuana
at a friend’s house

and she wanted him to walk her home. The defendant contends that the v

ictim falsely accused the defendant of raping her in order to make her husba nd regret that he had not walkedhome with her that night. The motivations for making the twoaccusations are not the same. Although it was late when the victim was walking home before th e present offenses, her husband knew that she would be out late because he expec

ted to meet her at We

igels. The victim

stood to suffer no negative repercussions for being out late, and in fact, her husband did not arrive home until after the ra pes had occu rred . Ins tea d, t he d efen dan t su gges ts t hat the vic tim was mot iva ted by a desire for revenge in making the present accusations rather

than by the need for an explanation of her whereabouts or the fear that she would suffer negative conseque nces for being out late. Thus, the alleged previous false accusation is not relevant to prove the victim’s motive to lie in the present

case.

This court has recognized that a victim’s prior fabrications of crimes can be relevant to show that the victim has the ability to fabricate the crimes at issue. State v. Angela Manning , No. 03C01- 9501-CR-00012, Bradley County, slip op. at 17 (Tenn. Crim. App. Feb. 27, 1998); see , e.g. , State

v. Gookins , 637 A.2d 1255, 1258 (N. J. 1994) (proof that

officer falsif

ied breathaly

zer tests in other

cases is relevant to show that the officer had the opportunity to falsify

the test in the present case); Peop le v. Mascarenas , 98 Cal. Rptr. 728, 733-34 (Cal. Ct. App. 1971) (proof that a y oun g prose cution witnes s had stolen and mad e false charg

es to build case ag

ainst another per

son is relevant to show that he may have stolen and fabricated charge in present case because it reveals the potential that the current charges are the product of “y outhful fantas y or [ may] be motivated by malice”). Although a fine distinction, such evidence goes to prove – or rather to disprove – a fact in issue at trial, whether the present offense actually occurr ed. Such proof is admissible under Rule 404(b), unless its probative value is outweighed by the danger of unf air prejudice.

In Angela Manning , the victim testified that the defendant and two men entered her home, robbed her, and raped her and that the defendant and one of the men burned her with a cigar and a-26-

cigarette. The defendant so ught to present evidence that the victim engaged in fraudulent conduct during her marriage to her first husband. At a pretrial hearing, the victim’s ex-husband testified that during the time he was married to the victim, he returned home to find a window broken and that the victim told him that their home had been burglarized. The ex-husband testified that the victim had filed an insurance claim for missing items totaling ten to eleven thousand dol lars but that he later discovered

the missing items in his Winnebago. He also testified that the victim claimed that a man had called threatening to kidnap and kill their daughter if he did not pay fifty thousand dollars. He said that he subsequen

tly received a

threatening call and that the caller demanded money a nd claimed
to be serious. The ex-husband said that the FBI determined through voice a

nalysis that t

he victim

was the one making th

e threatening c

alls. Finally, he testified

that the victim burned herself on her stomach with cigarettes and then sought the navy base po li ce, who subsequently accused him of beating the victim and burning her with cigarettes. The defendant argued that this evidenc e was admissible

under Rule 404(b) because it was relevant to the issue of the d

efendant’s gu

ilt. This court determined that th e victim’s false report of a burglary to ga in insurance proceeds, fabricated kidnapping threats to extract money from her husband, and self-inflicte d cigarette burns were probative of her ability

to fabricate the crimes for which the defendant was charged. Nev

ertheless, the factual distinctions between theprior incidents and the offenses at issue in Manning , particularly the lack of

injuries in the claimed burglary and the limited nature of the prior cig arette burns, along withthe fact that the p

rior conduct was

over seventeen

years old, c

aused this court to hold

that the trial court had not abused its discretion in excluding the evidence.

In the present

case, the factual distinctions between the alleged previous accusation of rape and the present

testimony also limit the probative nature of the evidence. As discussed above, the victim had different motives for the two reports of rape. In fact, othe r tha n the timing – both incidentsoccurred late

at night or in the early morning hours – the accounts are dissimilar. I n the first incident, the victim allegedly returned home to tell family me mbers that she was taken

behind

a store and raped. In the present incident, the victim fled the scene of the offe nse, knocked unsuccessfully

on the do ors of the nearest lit houses, ran down the road screaming, and stopped a stranger requesting help . Based upon thes e dissimilarities,

we believe that the potential prejudice of the evidence –

that the jury

would reject the victim’s testimony because it believed that she had a propensity to make false allegations of rape – outweig hs any probative value it may have.

C. Impeaching a Witness with Specific Conduct

Specific instances of

conduct may be used to impeach a witness during cross-examination if the conduct is probat ive of the witness’s cha

racter for trut

hfulness or untrut

hfulness. Tenn. R. Evid. 608(b). If the witness deniesthe conduct, the party proffering the evidence must be satisfied withthat response and

may not seek

to prove the conduct by extrinsic evidence. See Tenn. R. Evid. 608(b). Before

a witness can be q

uestioned about the

specific instanc

e of conduct,

the court, upon request, must

hold a jury-out hearing “to determine that the allege d conduct has probative value and that a reasonable factual basis exists for the inquiry.” Tenn. R. Evid. 608(b)(1).-27-

Prior false reports o f crime are relevant to a witness’s credibility. State v. Walton , 673 S.W.2d 166, 169 (Tenn. Crim. App. 1984) (affirming the state’s cross-examination of the defendant about a prior conviction for violation of a city ordinance prohibiting giving false information to the po lice); see State v. Newsome, 744 S.W. 2d 911, 917 (Tenn. Cri m. App. 198 7) (holdin g that th e victim could be impeached with fa lse reports to polic

e). Similarly

withregard to sexua

l offenses, the fact that a victim previously accused ano ther of raping her is material to her charge of rape against the defendant if proof exists that the victim falsified the prior accusation. See State v. Willis
, 735 S.W.2d 818, 822 (T

enn. Crim. App. 1987). In Willis , the defendant, convicted of aggravated rape, w anted to challenge the victim’s credibility by show ing that she had made false accusations of sexual abuse against another person. In the

defendant’s offer of proof, a social worker testified that the victim had rela

ted that another u

ncle had also sexually abused her but that this complaint was
notinvestigated be

cause it was vag

ue, the victim’s mot

her thought it was false, and the agency’s workload required focus on the defendant’s case. This court observed:

The trial judge ref

used to admit this evidence because it was irrelevant. The allegationhad not been investigat ed a nd there was no proof concerning the
t ruthfulness

of the other allegation. In the absence of proof that she falsified th e othe r allegation , the fact that she accused another person of committing another sexual offense against her is immaterial. It is entirely possible that the child was abusedby more than

one person, and th

is would in no way

reflect adversely upon her cred ibi lit y.

Id. at 822 (emphasis added); see also State v. Charles Ritter , No. 1279, Knox County (Tenn. Crim. App. Feb. 16, 1990), app. denied(Tenn. May 14, 1990) (affirming the trial court’s exclusion of the victim’s p rior sexual abuse by a cousin under the former rape shield statute and noting tha t prior instances of sexual abuse are immaterial and do not reflect negatively upon a victim’s credibility).

However, some factual bas is for the prior fa

lse report must exist

before the part

y seeking to impeach the witness may ask about it. See Tenn. R. Evid. 608(b)(1). The purpose behind requiring

a reasonable

fa ctual basis befor

e permitting an in

quiry about s

pecific instanc

es of conduct “is t

o

ensure that such questions are proposed in good faith, rather than in an effort to

place before the jury unfairly prejudicial information supported only by unreliable rumor s.” State v. Nesbit

, 978 S.W.2d 872, 882 (Tenn. 1998) (discussing the identical requirement under Rule 405(a)(1)-(2) that the trial court, upon request, hold a jury-out hearing to assess the existence of a reasonable factual basis for

an inquiry about a specific instance of conduct). To the extent possible, the pa rty seeking t o introduce the evidence should present extrinsic proof of t

he specific

ins tan ce of con duc t at the jur yout hearing. Id. “If the rea lities of trial make

it impossible to do so, t

he attorney

proposing to ask the question should, at a minimum, clearly state on the record the source and origin of the information underlying the specific instance of conduct about which the inquiry is proposed.” Id.

In Nesbit , the prosecutor solicited from the witness that the defendant’s aunt told him that the defendant alleg

edly engaged in satanic worship. The prosecutor s tated that two or th

ree people had told him that the victim told them that the defendant said that he practiced satanic worship. The-28-

prosecutor

said that the victim’s family related the allegations

of satanic worsh

ip to the defendant’s
aunt after the murder. The court held that this established a reasonable factual basis by identify ing

on the record that the victim was the source and origin of the specific instances of conduct. Id. at 884-85.

In State v. William B. Thurbley , the state sough t to ask defense witnesses who testified about the defendant’s reputation for peacefulness if they had heard that

the defen dant had a ssaulted his exwife. No. 03C01-9709-CC-00414, Sevier County (May 11 , 1999), app. granted

(Tenn. Dec. 13, 1999) (granting pe

rmission to appeal f

or the sole

purpose of remanding the case to the trial court for correctionof the record). In a jury-out he aring, the assistant district attorney stated that he had a factual basis for the inquiry and offered to have the ex-wife testify about the assaults. This court held that the state’s assertion that it had information from the ex-wife ab out the two assaults by the defendant gave a sufficient factual basis for the inquiry

. Id. at 24.

I n the present case, w e question whethe r defense couns

el’s assertions r

egarding the

prior false accusation provide an adequ ate factual bas

is to permit the def

endant to cross-e

xamine th e vi ctim about this specific bad act. Defense counsel stated that she had information from “several sourc

es”

re ga rding the prior false a ccusation and tha

t the victim’s famil

y members sa

id that she made this prior false accusation when she was seventeen or eighteen years old. Although we deduce that the

sources from which the inf ormation stems are

family membe

rs of the victim,

we do not know if the

se

are the family members to whom the victim made the alleged false accusa tion or if these family members learned of the accus at ion from others. This situation is distinct from that in Thurbley where the prosecutor po

inted to a sp ecific perso

n who had first-ha

nd knowledge of

the specific instances of conduct. Nevertheless, this situation is not dramatically different from that in Nesbit
, in which the prosecutor stated that several people had told him that the victim said the defenda

nt told her that he engaged in satanic worship.

In the present case

, defense counsel stated that the victim’s family members related that the

v ictim claimed she had been raped and then recanted the accusation just before the pol ice wer e called. The victim’s recanting of her accusation of rape indicates that it was false. As discussed above, a victim’s prior false accusation of crime is probative of the witness’s character f o r truthfulness

or untruthfulness. The false accusation allegedly occur red whe n the vic tim was
seventeenor eighteen years old, and the victim was twenty-three year s old atthe time of trial. T hus,
t he accusation falls within the ten -year limit

ation set out in Rule 6 08(b)(2). Under

these circumstances,

the probative value of the evidence is not substantially outweighed by its prejudicial effect. See Tenn. R. Evid. 403.

The fact that the vict

im could have bee

n a juvenile

at the time of the a

ccusation also

bears upo n it s ad mis sib ili ty:

Evidence of specific

instances of cond

uct a witness committed while the witness was

a juvenile is generally inadmissible under this rule. The court may, however, allow evidence of such conduct of a witnessother than the accused in a criminal case if the-29-

conduct would be admissible to attac k t he credibility of an adult and the

court is satisfied that admission in evidence is necessary for a fair determination in a civil or criminal p roceeding.

Tenn. R. Evid. 608(c). Here, the conduct would be admissible to attack the credibility of an adult. Thus, the question is whether the evidence is necessary for a fair determination of the defendant’s guilt. In the present case, although the victim’s emotional reaction follow ing the offenses corrobor ates her te stimony that she was raped, the victim’s testimony provides the only evidence linking the defendant to t

he crime. The inv

estigation did not

uncover the victi

m’s fingerprin

ts in the defendant’s car or semen on the passenger

’s seat. Although semen was found in the victim’s vaginal swab and on her shorts,

the sample did not yield a DNA profile. Agent Kelly Smith testified that one possible explanation for this was the fact that semen degrades over time. The victim reported to the emergency

room staff that she

last had sexual inte

r course two day

s before the pre

sent offenses. Through cross-examination of the victim, the de

fendant establis

hed th a t the victim had an opportunity to see

the defendant and to connect him with the car bearing the license plate number UDA-240. This evidence reveals that the admissibility of the prior false accusation was necessary for a fair determina

tion of the case e

ven if the victim wa

s seventeen at the

tim e she made the accusation. Thus, the defendant should have been permitted to cross-examine the victim about the prior false accusation of rape.

The defendant

contends that his inability to impeach the victim’s credibility with her prior false accusation of rape violates his rights under the Confrontation Clause. As discussed above, the defendant’s fundamental rig ht to confront the witnesses against him includes his right to meaningful cross-examination of those witnesses. Ritchie , 480 U.S. 51, 107 S. Ct.

at 998; Brown , 29 S.W.3d
at 431. C ross-ex amination tests not only the witness’s perception and recollection of the account given but alsothe witness’s credibility. Davis , 415 U.S. at 316, 94 S. Ct. at 1110. The attack on a witness’s credibility may be a ge neral attack designed “to aff ord the j ury a basis to infer that the witness’ character is such that he would be less likely than the avera ge trustwor thy citizen to be truthful in his testimony” or a particular

attack that reveals “possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or per sonalities in the case at hand.” Id.

In Davis , the defendant sought to cross-examine the juvenile witness, who testified that he

saw the defendant in t

he area where

the police found th

e stolen safe, wit

h his juvenile adjudication of delinquency

for burglary

in order to show that the witness identified the defendant in order to shift police suspicion away from himself. An Alaska statute prohibited the introduction of a juvenile’s record, and the trial

court restricte

d cross-examinatio

n. Noting that the

juvenile witness’s truthful testimonywas a key e

lement in Alaska’ s case against t h e defendan t, the United States Supreme Courtheld that the exclus

ion of cross-examin

ation of the witnes s in order to show bias and prejudice

was error that affected the defendant’s constitutional rights. Id. at 317, 320, 94 S. Ct. at 1111-12. Furthe r em phasizing the distinction between general and particular credibility a ttacks, Justice Stewart wrote in his concurring opinion:-30- The Court holds that, in the circu mstan ces of this case, the Sixth and Fourteenth A mendments conferred the right to cross-e xamine a particular prosecutio n witness about his delinquen cy adjudica

tion for burglar

y and his stat

us as a probationer. Such cross-examina tion was necessa

ry in this ca

se in order “to

show the existence of possible bias and prejudice . . .,” ante, at 1111. In join ing the Court’s opinion, I would emphasize t ha t the Court neither holds nor suggests that the Consti tutio n confers a right in every case to impeach the general credibility of a witness through cross-examinationabo ut his past delinquency adjudications or criminal convicti

ons.

Id. at 321, 94 S. Ct. at 1112-13 (Stewart, J., concurring). Thus, not every denial of the rig

ht to crossexamine a witness in order to impeach his or her credibility

rises to the level of constitutional error.

In Boggs v. Collins , the Sixth Circuit examined whether the trial court’s refusal to allow the defendant to cross-examine the rape victim about an alleged prior false accusation of rape violated the defendant’s rights under the Confrontation Clause. 226 F.3d 728, 736 (6th Cir. 2000). The court noted the distinction that the Supreme Court made in Davis between general and particular attacks upon a witness’s credibility and held that in cases involving a prior false accusationof rape, crossexamination is “constitutionall y compelled

when it reveals

witness bias or prejudice, but not when it is aimed solely to diminish a witness’s general credibility.” Id. at 737; see also Bartlett , 856 F.2d
at 1089 (holding that the trial court’s exclusion of cross-examination on a prior false accusation of rape did not violate the defendant’s Sixth Amendment rights because the defendant sought to attack the victim’s credibility gene ral ly); Hughes , 641 F.2d at 793 (h olding that the limi

tation on crossexaminati on regard ing the victim’s alleged prior false accusation of rape did not violate the Confrontation Clause because the defendant sought to make a general attack o n the v ictim’s credibility); Olson
, 508 N.W.2d at 620 (holding that the Confrontation Clause did not compel the admiss ion of e xtrinsic evidence of a prior false

accusation of ra

pe especially

when the credibi

lity attack was not “aimed tow

ard revealing

possible biases, pr

ejudices or ulter

ior motives of the w

itness

as they may relate direc

tly to issues or personalities in the case at hand”). On the other hand, several jurisdictions have reached the g eneral conclusi

on that the Confron

tation Clause compe

ls the crossexamination of the victim about a prior false accusati

on of rape without

discussing wheth

er the false accusation represented a g eneral or a par

ticular att ack on the victim’s credibility. See State v. Walton
, 715 N.E.2d 824, 827 (Ind. 1999) (r easoning that the Indiana “ev

identia ryrule preventing evidence of specific acts of untruthfulness must yield to the defendant’s Sixth Amendment right of confrontation”); State v. Barber , 766 P.2d 1288, 1290 ( Kan. Ct

. App. 1989) (citing Davis and holding that the Confrontation Clause permits the creation of a special exception to the evidentiary rulebarring admissionof a witness’s spe cific conduct that tends

to prove a chara

cter trait); State v. Caswell
, 320 N.W.2d 417, 419-20 (Minn. 1982) (holding th at the refusal to a

llow the defenda

nt to impeach the victim

with a prior false accusation of rape was harmless beyond a reasonable doubt due
to the strength of the state’s evidence and the dissimilarity

of the two accusa

tions); State v. LeCla

ir
, 730 P.2d 609, 615 (Or. Ct. App. 1986) (holding that the Confrontation Clause requires that the defendant be allowed t o cross-e xamine the victim about a prior false accusation if the risk of prejudice, confusion, embar rassment, or delay does not substantially outweigh the probative value-31-

of the evidence); Clinebell v. Commonwealth , 368 S.E.2d 263, 266 (Va. 1988) (holding that “in the
context of prosec utions o f sexual offenses, evidentiary constraints must sometimes yield to a defendant’s right of cross-examination” guaranteed by the Sixth Amendment); see also Lawrence

v. United States
, 482 A.2d 374, 377 (D.C. 1984) (reversing be cause the Confro

ntation Clause compels cross-exam i nation of key prosecution witness about prior false accusations of sexual relations to give jury crucial evidence about the witness’s cre dibility). These

cases fail to account for the limitations in Davis

. See Denise R. Johnson, Prior False Allegations of Rape: Falsus in Uno, Falsus in Omnibus , 7 Yal e J.L. & Feminism 243, 262 (1995) (rea soning that cour

ts have mistakenly held th e Conf rontation Clause to require evidence of prior false accusations of sexual assault by classifying

the evidence as relating to the victim’s credibility without distinguishing be twee n general and particular credibility attacks under Davis ). Our supreme court has observed the limitations in Davis in holding that no confrontation issue resulted from a protective order preventing the defendant from impeaching

juvenile witnesse

s with prior juvenil

e convictions in orde

r to attack the witnesses’ credibility generally r ather than to show the witnesse s’ bias or prejudice. State v. Butler
, 626 S.W.2d 6, 10 (Tenn. 1981).

In Boggs , the defendant argued that he wanted

to cross-examine the victim about the prior accusation in order to show that if she lied once about being raped, she would do it again. The court concluded

that the defendant sought to attack the victim’s credib ility generally, theref ore, the Confrontation Clause was not violated:

No matter how central an accuser ’s credi bility is to a c ase – indeed, her

credibility will almost always be the cornerstone of a rape or sexua

l assault case, even if there is physical ev

idence – the Consti

tution does not require that a defendant begiven an opportunity

to wage a general attac

k on credibility

by pointing

to individual instances of past conduct.

226 F.3d at 739-40 (emphasis in original). The court noted that the magistrate had reasoned that the excluded cross-examination went to the victim’s motives in accusing the defendant of rape but that neither the mag istrate nor the defendant had given a motive that would have been revealed by the prior accusation. Id. at 740. The court held that “labeling this general credibility argument to be one of ‘motive’ without

articulating a theory of motive or partiality does not implicate the r

ights carefull

y outlined in Davis .” Id. at 741 (footnote omitted).

In the prese

nt case, the defendant seeks to cross-examine the victim in order to make a general attack upon her credibility. Although the defendant arg ues that the victim’s pri o r false accusation also reveals her motive to lie in this case, as discussed above, the motives behind the two accusations are distinct. Thus , the defendant’ s rights u nder the Confrontation Clause were not violated by his inability to make a genera l attack upon the victim’s credibility by cross-examining her about her prior false accusation of rape.

Nevertheless,

this case is strikingly similar to State v. Dishman , 915 S.W.2d 458 (Tenn. Crim. App. 1995), in which this court held that the circumstances compelled that the defendant be-32-

allowe d full and complete cross-examination of the rape victim. In Dishman , the trial court prohibited the defendant, convicted of aggravated rape and kidnappin g, from impeaching the victim withspecific conduct. T he defendant sought to cross-examine th

e victim about her

participation in

a burglary for which the victim had successfully completed pretrial diversion. This court held that although the victim’s burglary charges were eventually dismissed, the defendant could impeach the victim with this specific conduct under Rule 608(b). Id. at 463. In discussing the harmful effect of this error, we observed that

the convictions for kidnapping and rape depended alm ost entirely upon the truthfulness

of the victim’s tes

timony, much o

f which was uncor

roborated. Bec

ause the credibility of the

vi ctim was a central issue, the victim’s previous participation in a crime involving dishonesty was especially probative. The evidence, if admitted, may have chan ged the results of the tria l. The importance

of a full and compl

ete

cross-ex aminati on, under these circumstances, is so fundamental as to preclude a finding of harmless error

. Id. at 464. Given the circumstances in this case, we believe Dishman provides protection for crossexamination under the defendant’s ri ght t o due process. In this regard, under the circumstances existing in the present case, we conclude under Dishman that the defendant’s ability to conduct a full and complete cross-

examination was so im

portant that due pr

ocess prevents the failure to allow the cross-examination

from being cons

idered harmless

beyond a re

asonable doubt.

V. PRIOR INCONSIST ENT STATEMENTS

The defendant contends that the trialcourt err oneously ruled that he could not present extrinsic evidence of the

victim’s prior inc

onsistent statemen

ts regardin

g wheth er she was on her way to or from work at t

he time of the offe

nses, what time she

left Labor Wor

ld, where she fir

st encountered

the defendant, and whether she fought with the defendant during the rapes. He argues that this evidence wa

s crucial to his de

fense that the vic

tim was not credibl

e. He mainta

ins that although the trial court subsequently reversed this ruling just before he presented his las

t witness, his inability to pr

esent extrinsic

evidence through the victim’s husband and sister violated his righ

ts to due process and equal protection of law. He also claims that the trial court erroneously excluded Mike Cohan’s written r

eports and audiota

pe recordings

of the victim’s pri

or inconsistent sta

tements. He contends that if th

e trial court had

allowed him to imp

each the victim’s testimo ny with this extrinsic evidence, it

is probable that the jury would not have found him guilty of the offenses. The state contends that the trial court cured any mistaken evidentiary ruling by allowing the defendant
to prove the prior in

consistent statements through the testimony of Mike Cohan, the defendant’s investigator. It contends that the d efendant has not

shown that any

prior inconsisten

t statements, other than those pr

oven through Mr.

Cohan, exist.

Initially, we note that the defendant failed to raise this issue in his motion for a new tr ial. In the motion, the defendant challenged only the exclusion of the audiotapes of convers ati ons betweenth e stat e’s witnesses and his private investigator upon the basis that the defendant had2 Rule 608 (b), Ten n R. Evid., p rovides in p ertinent part:

Specific insta

nces of con

duct of a witness for the p urpose o f attacking or sup porting the w itness’s credibility, other than convi ctions of cr

ime as provided i

n Rule 609, may

not be proved by extrinsic evidence. They may, however, if probative of truthf ulness or untruthful

ness and under the following conditions, be inquired int o on cross-examinat

ion of the wi

tness concerni

ng the witn

ess’s chara

cter for truthfulness or un truthfulness or co ncerning the c haracter fo r truthfu lness or untrut hfulne ss of another witne ss as to which the character o f the witness being cross-exam ined has testified

.
-33- violated the reciprocaldiscovery r equirements of Rul

e 16, Tenn. R. Crim. P. I

f a defendant fa

ils to raise anissue alleging error in the exclusion of evidence in the motion for new trial, the defendant waives app ell ate revi ew o f th at i ssu e. T .R. A.P . 3( e). T hus , we exa min e th is i ssu e on ly f or th e presenceof plain error which must be corrected in order to render substantial justice. See Tenn. R. Crim. P. 52(b).

On direct examination

, the victim testifie

d that she called h

er husband from L

abor World between12:00 and 1:00 a.m., waitedfor him for about forty-five minutes, and then began walking home from work alo

ne. She said

that the defendant drove past her twice, then stopped as she was walking on Fifth Avenue ju st before a bridge near

the Knoxville Utility

Board building.

On crossexamination, the victim denied c alling her husba

nd at 11:00 p.m. She stated that she did not know what time she left Labor World. She stated that she did not recall telling Mike Cohan that she first

saw the defendant’s car in front of a card shop on North Fifth Avenue. When questioned about her failure to tell Detective Clowers that she jumped over a fence while fleeing the defendant’s car, the victim stated that she did

not tell Det ective Clowers a number of things because she was fighting with her husband at the time. She admitted that she did not tell Mr. Cohan that she jumped over a fence but stated that she did not go into the details of the rape with him. She stated that she did not recall telling Mr. Cohan that she pounded on the defendant’s back.

Before the defendant began his proof and with the jury out, the state moved the court to direct the defendant to foll

ow Rule 608, Tenn . R. Evid., 2 which it charac terized as prohibit

ing extrinsic evidence of specific instances of conduct. The defendant argued that he was entitled to bring out the victim’s prior inconsistent statements through the testimony of his investigator. The court ruled that Rule 608(b) prevented such testimony and declined to hear any further argument on the issue.

Before the defendant c

alled his last witne

ss, Mike Cohan, and

withthe jury out, the

defendant asked the court about its earlier ruling that he could not introduce the audiotapes of the victim’s conversations with Mr. Cohan. At this time, the court ruled that Mr. Cohan could testify about prior inconsistentstatements the victim made t o him. The state argued that the defendant could not introduce the audiotapes of Mr. Cohan’s conversations with the victim and other witnesses becau

se the defendant had not provided the audiotapes to the state when it moved for reciprocal discovery pretrial. The defendant argued that the state was aware that

the audio taped conversation with the victim existed because defense coun sel had q uestioned the victim about it on cross-examination. He contended that the audio taped conversations with John Harrison and Anonda Joiner were Jencks
mater ial t o which the state was not entitled unless it requested them following the witness’s-34-

tes tim ony. Defense

counsel added “if the Court is ruling that we cannot introduce the tapes, as long

as Mr. Coh an ca n te sti fy a s to what these peop le told him that are

prior inconsisten

t statements to what they’re telling–they’r e saying now, that’s fine. We won’t introduce the tapes.” The stat e responded

that it did not dispute the defendant’s right to prove prior inco nsistent statement s through Mr. Cohan’s testimony but asked the court to instruct the jury that the defe ndant’s impeachment of his own witnesses was not substantive proof. The court agreed to give the instruction.

Mike Coh an testified that he interviewed the victim while investigating the case for the defendant. He said thatthe victim told him tha t on the evening o

f the offenses, s

he had gone to Labor World but felt ill and did not work that evening. He said that she told him she called her husband at 11:00 p.m. He said that the victim said she first saw the defendant when she was on Fifth Avenue in the area of Knoxville Business College and a litt le flower shop. Based upon his own familiarity

with the area, Mr. Cohan stated that Knoxville Business College wa s on North Fifth Avenue, which in tersects with Eas t Fifth Avenue, a

nd that the flower

shop was on East Fi

fth Av enue. Mr. Cohan said that in describing what happened, the victim never mentioned jumping

overany fences . He said that she told him that she hit the defendant on the back during the rape

. He said that a lthough the victim expressed fear of the defendant who had a knife, she did remark that she was able to

take care of herself. He said that he spoke with the victim’s hus

band, John David Harrison, who told him that the v ictim said she would

be working until 1 0:00 or 11:00 p.m.on the evening before the offenses and that she called her

husband at midnight that night. He said that he interviewed

Anonda Joiner, who t

old him that the victi

m cried easily

. Ms. Joiner told him that the victim’s reaction to

the offenses was unusually flat and that on one occasion, the victim seemed t

o think that the whole

incident was funny. Following Mr. Cohan’s testimony, the trial cour t instructed the jury that the out-of-court statements were admitted for the purpose of testing the witness’s credibility and that the statements themselves were not proof.

A party may prove a witness’s prior inconsistent statement

by extrinsic

evidence if the p

arty gives the witness an opportunity to explain or deny the prior inconsistentstatement and the opposing party has the chance to question the witness about the matter or

if “the interests

of justice otherw

ise require.” T enn . R. Evid. 613(b). Although initially the trial court erroneously r uled that the defendant could not prove the victim’s prior inconsistent statements through the testimony of Mike Cohan, the court reversed this ruling before Mr. Cohan testified, and the defendant questioned Mr. Cohan about what the victim told him.

On appeal, the def

endant contends t

h at the trial court erroneously prevented him from presenting extrinsic evidence of the victim’s prior inconsistent statements through the testimony of John David Harrison and Anonda Joiner. Nothing in the record indicates that the defendant intended
to use these witnesse

s to present extrinsic proof of prior inconsistent statements by the victim at trial. The defendant did not question the victim about whether she made inconsistent statements to Mr. Harrison or Ms. Joiner thereby giving her a n opportunity to explain or deny the statements as required by Rule 613. See State v. Martin , 964 S.W.2d 564, 567-68 (Tenn. 1998) (holding that the witness must be afford ed an opportunity to explain or deny the prior inconsistent statement or extrinsic evidence of the

statement is inadmis sible). On the othe r hand, th e de fendant asked bo

th-35-

Mr. Harrison and Ms. Joiner about prior statements they made to Mr. Cohan. The defendant then presented extrinsi c proof thro ugh Mr. Cohan about statements made by Mr. Harrison and Ms. Joiner. We note that the defendant was not entitled to present this extrinsic proof with regard to Ms. Joiner because on direct examination, Ms. Joiner admitted that she told Mr. Cohan that the victim did not

seem upset when discussing the case and that her demeanor was unusual considering her emotional
nature. See id. at

567 (observing that if a witness admits makingthe prior inconsis tent statement, then the statement may not be proven through extrinsic evidence). Thus, the defenda nt’s questioning of the v ictim, Mr. Harrison, Ms. Joiner , and Mr. Cohan is co

nsistent with his arg

ument at trial, urging the court to allow him to use Mr. Cohan to present extrinsic evidence of pr ior inconsistent statements of the victim and the other two witnesses.

The defendant may

not argue to pre

sent extrinsic

evidence through a single witness at trial and then, once the tri

al court has allow

ed the extrinsic pro

of, fault the trial court on appealfor not permitting him to present extrin sic evidence thr

ough differen

t witnesses. See State v. Miller , 668 S.W.2d 281, 285 (Tenn. 1984). The trial court ha d no opportunity

to extend its new ruling regarding the admissibility of extrinsic proof to Mr. Harrison or Ms. Joiner. Furthermore, the defendant made

no proffer of what th ese witnesses would have said that the victim told them. Finally, even if the defendant had intended to have Mr. Harrison or Ms. Joiner testify about prior incons istent statements made by the

victim, the extrinsic proof would have been inadmissible because as discussed above, the defendant failed

to comply with the requirements of Rule 613. See id. at 567-68. The trial court cured its initial error in excluding extrinsic evidenc e by p ermitting Mr. Cohan to testify about the victim’s prior inc

onsistent statemen

ts.

The defendant also

contends that

the trial court sho

uld have admitted M

r. Cohan’s repor

ts and audiotapes of his conversati ons with the victim

but provides no support for this contention other than arguing that the audiotapes and reports constitute “valuable evidenc e” of the victim’s prior inconsistentstatements. The trial court granted the state’s pretrial motion that the defendant not be allowedto introduce docum ents or tangible evidence because he failed to provide reciprocal discovery as required by Rule 16(b), Tenn. R. Crim. P. However, the requirement that the defendant provide reciproc al discov ery does no t extend to “report

s, memoranda, or o

ther internal de

fense documents made by the . . . defendant’s . . . agents in connection with the investigation or defense of the case” or to statements made by witnesses for the state or the defense to the defenda nt’s agents. Tenn. R. Crim. P. 16(b)(2). Here, the defendant included neither the reports nor the audiotapes in the record on appea

l. A defense inve

stigator’s rep

ort of an intervie

w with the victim con

st itute s work product, which is e

xclu ded from r

eciprocal discovery by Rule 16( b)(2). The audiotapes purportedly

contain stat emen ts by the vict im, a witness for th

e state, to the def

endant’s agen

t, his private investigator. As such, they are also excluded from recipr ocal discovery by Rule 16(b)(2)

. Nevertheless,

the defendant questioned Mr. Cohan in detail about his in

terview of the vic

tim. Thus, the exclusion of the aud

iotapes and repo

rts was at most

harmless error. See

Tenn. R. Crim. P. 52(a). The fact that the defendant agreed to present Mr. Cohan’s testimony in lieu of the audiotapes without noting further exception only strengthens our belief that plain error doe s not exist.-36-

VI. DISCOVERY OF SEXUAL ASSAULT CRISIS CENTER RECORDS

The defendant contends that he was entitled to discover the contents of the victim’s file from the Sexual Assault Crisis

Center (SACC) because it contained exculpatory evidence.He argues that the trial court

erred in determining th

at the contents of

the file were not

exculpatory

in its in camera review because it did not c ompare the victim’ s statements in the f ile with other statements

that she made ab out the rapes. He also maintains that because only he knew what other statements by the victim the defense investigation had revealed, the trial court

could not have determined whether the
statements

in the file were e

xculpatory. T

he state contends that when the defendant asked the trial
court to review the file, he failed to tell the court wh at informatio n he thought should or could be material. It argues that the defendant did not have the right to examine all of the confidential i nformation on the chance tha t it might contain in

consistent stateme

nts. Finally, it mainta

ins tha t the defendant has failed to show that he was prejudiced by his inability to look through the file.

The defendant appeared

for trial on June 1, 1999, and informed the court that the SACC had refused to respond to a

subpoena to bring the victim’s records to court. Upon the defendant’s oral motion, the trial court ordered the SACC to de liver to the court for an in camera review all notes reports, medical records or other information relating to the victim. It examined the records for exculpatory

material and, on June 22, 1999, determined that the records contained none. The trial court sealed the records for appellate review.

Init ial ly, we observe that neither party has stated why the defendant is or is not entitled to the SACC file or if the cont

ents of the file ar

e privile ged. Noth

ing, including t

he contents of the

file itself, indicates whether the SACC is a state agency. See
, e.g. State v. Carter , 682 S.W.2d 224, 226 (Tenn. Crim. App. 1984) (holding that Rule 16, Tenn. R. Crim. P., did

not entitle the def

endant to discover records of a psychologist whom the victim consulted two months following the aggravated rape because these r

ecords were not

in the possession, control, or custody of the state). Nor does the record reflect whether a

psychologist, a psychiatrist, or a ce rtified social worker compiled the file. See Tenn. Code Ann. §§ 24-1-207 (communications between a patient and psychiatri

st in the course of a therape utic counseling relationship are privileged), 63-11-213 (confidential communications bet ween a cl ien t an d a p sych olo gist are p riv ile ged t o th e sam e ex ten t as att orn ey- clien t communications), 63-23-107 (confidentialcommunications between a client and a certified social worker are privileged to the same extent as communications with psychologists and psychiatrists).

In any event,

our review of the

SACC file uncovered only one statement that con

flicted with any of the victim’s sta

tements about the r

apes. The file reveals that on the day of the offenses, the victim stated that at the time of the attack, she was returning from reporting to work to say that she could not work. On direct examination, the victim testified that she was walking home from work when the offenses occurred. Detective Clowers testified that the victim told him that on the night of the offenses, she

was suppose to wor

k at Labor Worl

d but became ill and

decided to walk home. John David Harrison testified that the victim called him when she finished work, said she was feeling ill, and wanted him to meet her. Mike Cohan testified tha t the victim

told him that she had gone to Labor World but

left because she felt ill. Stan Bunch, the manager at Labor World, testified-37-

that the victim

was probably scheduled to work at midnight on the 26thbut that no record existed
to show that she was sent from Labor World to the Coliseum at that time. Thus, the issue of whether the victim was at work b efore she beg

an walking home o

n th e night i n question was thor oughly examined at trial. The defendant suffered no harm from his inability to review the victim’s SACC file.

VII. CONSTITUTIONALITY OF TENN. CODE ANN. § 40-35-120

The defendant challenges the life sentences imposed by the trial court, arguing that

the repeat violen t offender

statute, Tenn. Code Ann. § 40-35-120, is unconstitutional because its caption embraces more than one subject. He also claims that the statute violates his equal protection righ ts by depriving him of the opportunity to present mitigating evidence for the tria l court’s consideration in regard to his se

ntence. He maint

ains that the statut

e is effectively

an ex post factolaw and violates his due process rights because it inflicts a greater punishment upon him based upon an element that

was satisfied prior to the statute’s enactment. The state contends that the statute comports with the requirements of

the United States a

nd Tennessee Cons

titutions.

In 1987, the defendant plead guilty to rape and received a thirteen-y ear sentence. On June 30, 1999, the j ury convicted t he defendant of the prese nt offenses , two count s of aggr av ated rape. Section 40-35-120(a)(5)-(6) provides that a “‘re peat viole nt offend er’ is a de fendant w ho . . . [i]s convictedin this state on or after July 1, 1995, of any offense cla ssified in subdi vision (d)(1) a s a violentoffense; and . . . [h]as at least one (1) prior conviction for an offense classified in subdivision (d)(1) or (d)(2) . . . .” Subdivision (d)(1) lists rape and aggravated rape as violent offenses. Tenn. Code Ann. § 40-35-120(d)(1)(E)
, (I). Thus, the defendant qualifies as a repeat violent offender unde r the statute

because his 1987 conviction for rape and the present convictions for aggrava ted rape are violentoffenses. Although, a s the state correctly notes, the defendant has convictions for three violentcrimes, he does not qualify for repeat violent offender status under the portions of the statute requiring two prior convicti ons in addition to the present

conviction(s) because a prior conviction entails s erving and being released from a period of incarcera tion. Tenn. Code Ann. § 40-3 5

- 120(e)(1). The defendant has served only one period of incarc eration, that imposed for the 1987 rape conviction, even

though he has co

mmitted three viole

nt offenses.

The defendant contends that section 40-35-120 is unconstitutionalund er article II, section 17, of the Tennessee Constitution because its caption – “Repeat violent offenders – ‘Three strikes’”

–embraces those

designated as repeat violent offenders after receiving thre e convictions and those given that status after two convictions. He argues that following the 1995 amendments to the statute, which added the provisions extending the statute to those

defendants with tw

o convictions,

the body of the act became broader than its caption. Noting that the pu rpose of article

II, sect ion 17 is to prevent surprise and fraud, the

defendant contends that the “Three Strikes statute” failed to inform him that a second conviction for a violent offense would result in a sentence of life without parole. The state argues th

at if a caption is r

estricted to

a certain subject, the body of the act must be relevant
to the restrictive p

ortion of the capt

ion. It notes th

at subsections (1) and (2) confer repeat violent offender status based upon c

onvictions for thr

ee violent offen

ses and that s

ubs ections (3 ) through-38-

(6) give that sta

tus to defendants w

ith convictions for

two violent offens

es. Thus, it

contends that a portion of the body of the statute relates to the “Three strikes” in the caption.

“No bill shall become law which embraces more than one subject, that subject to be expressed in the title.” Tenn. Const. art. I I, § 17. The pur

pose of this constitu

tional provision is

to prev ent “‘omnibus bills’ and bills containing hidden provisions of which legislators and other interestedpersons might not have appropriate or fair notice.” State ex rel. Blanton v. Durham , 526 S.W.2d 109, 111 (Tenn. 1975) ( citations omitted); see Tennessee Mun. League v. Thompson , 958 S.W.2d 333, 336 (Tenn. 1977). However, the subsequent co

dification of the b

ill cures any

defects in the caption. State v. Chastain, 871 S.W.2d 661, 666 (Tenn. 1994); Howard v. State , 569 S.W.2d 861, 863 (Tenn. Crim. App. 1978). The 1995 amendments to section 40-35-120 added the subdivisions that apply to the defendant. Se e 1995 Tenn. Pub. Act s, ch. 499, §§ 1-2. T

hese amendments

were codified in

section 40-35-12

0 and became ef

fective July

1, 1995. If any defect in the caption existed, it was cured by this codification.

Next, the defendant cont ends th at the repeat violent offender statute deprives him of the equal protection of law because it prevents the trial court from considering any mitigating factors in setting his sentence. He ar

gues that defe

ndants not classified as repeat violent offender

s, including those facing the death penalty or life imprisonment without parole, have the opportunit

y to present mitigating factors, which could possibly reduce the sentence imposed. See Tenn. Code Ann. §§ 39- 13-204(j), 40-35 -113. The state do es not respond to thi

s argument.

Equal protection of the law requires that the state treat persons under like circumstances and conditions the same. Genesco, Inc. v. Woods , 578 S.W .2d 639, 64 1 (Tenn. 1979), superseded on other grounds by Combustion Eng’g, Inc. v. Jackson
, 705 S.W.2d 655 (Tenn. 1986). For this reason, “[r]ecidivist statutes do not violate either the equal protection or the due process provisions of the State and Federal Constitutions.” State v. Yarbro , 618 S.W.2d 521, 525 (Tenn. Crim. App. 1981) (evaluating enhanced punishm ent for a second

offense of posse

ssion of a controll

ed substance); see also Glasscock v. State

, 570 S.W.2d 35 4, 3 55 (Tenn. Crim. App . 1978) (observin g that the law is well-settled th at the Habitual Criminal Statute does not violate equal protection or due process); Moore v. State
, 563 S.W.2d 215, 218 (Tenn. Crim. App. 1977) (holding that the enhancement of the defendant’s “pres ent punishment . . . because of his status as an habitual criminal violates no constitutional provis ion, State or Federal”). In State v. Taylor , this court held tha t the Class X Felonies Act of 1979 did not violate equal protection because the Act treated all defendants under like circumstances and

conditions alike. 628 S.W.2d 42, 47 (Tenn. Crim. App. 1981). Th e Class X Felonie s Act listed e leven felonies th at were dange

rous to human life a

nd provided that the

se felonies were “determinate in nature, not subject to reduction for good, honor or incentive or other
sentence credit of any

sort, . . . terminate

only after

service of the e

ntire sentence,

and shall not be subject to pretrial diversion.” Id. (citing Tenn. Code Ann. § 39-5403 (rep eal ed 1 989 )). Sim ila rly, the re peat violent offender statute treats defendants who have committed either two or three of certain specified violen

t offenses alike

in that it imp oses a sentence of life without par ole for all qualifying

defendants. See Tenn. Code Ann. § 40-35- 120(g ). Repeat violent offenders are under different circumstances th

an defendants wh

o have not committe

d at least two viole

nt offenses.3 Tenn. Cod e Ann. section 40-35 -203(e) provide s:

If the crimina

l offe nse for which the defendant is charged carries an enhanced punishment f or a second

or subsequent viol

ation of the

same offense,

the indictment in a separate count s hall specify and

charge such fact. If the

defendant is convicted of the offense, then the jury must find that b eyond a re asonable doubt the defendant has been previousl y convicted t

he requisit

e number of times for the same of fense. Upon such findi

ng, the defen

dant shall be subject to th e authorize d term s of imprisonment for the feloni es and mis demeanors as set for th in § 40- 35-111.

-39- Therefore, the equal protection of the law does not require that these two categories of offenders be treated alike.

“Equal protection does no t r equ ire that all persons be dealt with identically, but it does

re quire th at a distinction mad e have some rele

vance to the purp

ose for which the

classification is made .” Baxst

rom v. Herold, 383 U.S. 107, 113, 86 S. Ct. 760, 763 (1966). In the absence of a suspect classification, such as race, or of an intrusion upon a fundamental constitutional right, the challenged

classification mu

st “bear some ra

tional relationshi

p to legitimate

state purposes.” San AntonioIndep. Sch. Dist. v. Rodriguez , 411 U.S. 1, 40, 93 S. Ct. 1278, 1300 (1973). The purpose of the sentencin

g statutes is t

o promote justice. Tenn. Code Ann. § 40-35-102. Among the sentencing principles designed to promote that purpose are the principles of preventing crime and promoting respect for the law by provi

ding a deterre

nt to those likely

to violate

the la w and incarceratingdef

endants who commit the most severe offenses. Tenn. Code Ann. § 40-35- 102(3)(A), (5). Further more, the l egislature h as a legi ti mate interest in protecting citizens from crime as a part of the state’s police power. Motlow v. State , 125 Tenn. 547, 566, 145 S.W. 177, 183 (1912). The legislature’s decision to impose the very severe sentenc e of life imprisonment without possibility

of parol upon those criminals who repeatedly commit violent offenses is rationally related
to its d esire to protect the public and deter crime. See Taylor , 628 S.W.2d at 74 (holding that the “distinction between Class X crimes and other crimes is rational and re asonable”); see also State v. Dee W. Thompson , No. 01C01-9812-CR-00490, Davidson County, slip op. at 25 (Tenn. Crim. App. Mar. 17, 2000) (noting that the repeat violent offender

s statute is “similar

in purpose and ef

fect” to the former Class X Felony Act of 1979). Thus, the repeat violent offende r statute does not violate the defendant’s right to equal protection of the law.

We note that the defendant makes no argument that the legislature lacked a rational basis for extending jury determination of recidivism to some classes of defend ants but not to violent offenders. See Tenn. Code Ann. § 40-35-203(e). 3 In the absence of argument of the par t ies and development

in the record, we decline to address this issue. Se e T.R.A.P. 13(b) (providing that review “generally will extend only to those issues presented for review”).

Fin all y, the defendant contends that the repeat violent offender statute violates his protection against ex post factoapplication of la w and his due proc

ess rights beca

use when he pled g

uilty to rape in 1987, he was not

aware that his 1987 conviction would later expose him to a life sentence. Our Supreme Court has delineated five categories of ex post factolaws:-40-

1. A law which provides for the infliction of punishment upon a person for an a c t done which, when

it was committed, wa

s innocent.

2. A law which agg

ravates a crime

or makes it

greater than w

hen it was committed.

3. A law that changes the punishment or inflicts a greater punishment than the la w annexed to the crime when it was committed.

4. A law that changes the rules of evidence and receives (sic) less or diff ere n t testimonythan was required at the time of the commission of the

offense in order

to convict the offender.

5. Every law which, in relation to the offense or its consequences, alters the situation of a person to his disadvantage.

Statev. Pearson , 858 S.W.2d 879, 882 (Tenn. 1993) (alteration in original) (quoting Miller v. State
, 584 S.W.2d 758, 761 (Tenn. 1979)).

Applying these categories to the defendant’s 1987 rape conviction, the 1987 rape was not an innocent act whencommitted. Furthermore, the repeat violent offender statute neither aggravates the 1987 rape nor attaches a greater punishm ent t o that crime than the one attached when it was committed. The defendant’ s challenge doe s not implicate the r

ules of evidence

in effect at

the time of the 1987 conviction. Thus, we must decide whether the repea t vi olent offender s

tatute disadvantages the defendant in relation to the 1987 rape or its consequences.

Penalty “enhancing sta

tutes only enhance the sentence for the triggering offense, rather than punish prior acts.” State v. Johnson , 970 S.W.2d 500, 505 (Tenn. Crim. App. 1996) (holding that the multiple rapist stat

ute does not opera

te to increase punishment for a prior offense ex post facto butinstead only

enhances the punishment for the triggering offense). Although the repeat violent offender statute looks to prior violent offenses – here the 1987 rape conviction – to determine whether a defendant qualifies as a repeat violent offender, it is the triggering offense – here the two aggravated

rape convictions – for which the life sentenc

e is imposed. See Tenn. Code. Ann. § 40- 35-120(g) (providing that t he “court shall se

nte nce a defe ndant who has been convicted of any offense listed in subdivision (b)(1), (c)(1), or (d) (1) to imprisonment for life without possibility of parole if the court finds beyond a reasonable doubt that the defendant is a repe at violent offender as definedin sub secti on (a) ”). In other words, the s tatute disadvanta

ges the defend

ant in relation to hi

s present offenses rather than his 1987 conviction. Because the re peat violent offe

nder statute was i

n effect before the defendant committed the present offenses, no ex post factoproblem arises.

Th e same reasoning applies to the defendant’s due process argument. The d efendan t summarily

contends that the repeat v iolent offender

act violates his ri

ght to due proce

ss because

he did not kno w at the time he pled guilty to rape in 1987 that this conviction could later be u sed t o qualify him for repeat violent offender status. The portions of the repeat violent offender statute that-41-

apply to the defendant became effective on July 1, 1995. At that point, the defendant was presumed
to be on notice that any subsequent convictions for violent offenses c ould subject him to a life
sentence under the repeat violent offender statute. Notably, the defendant does not argue that he was

unaware at the t ime he p led guilty to rape in 1987 that this conviction could be used to enhance future convictions in any way. We note that had it occurred, the trial court’s failure to advise the defendant that his rape conv

iction resulting f

rom a guilty

plea to rape cou

ld be usedto enhance future convictions is not an error of constitutional dimension. See Blankenship v. Sta te , 858 S.W.2d 897, 905 (Tenn. 1993) Instead, the defendant claims that he did not know at the time he pled guilty that his 1987 conviction could be used to impose a sentence of life imprisonment under the repeat violent offender statute for some later co

nviction. While

that is undoubtedly true because the repeat violent offender statute was not yet enacted, from the point of the repea t violent offender statute’s codification, he was on notice of this possibility. The statute does n ot violate his due pr

ocess rights.

CONCLUSION

Based upon the foregoing reasons and the record as a whole, we hold that the t rial court committed harmful error

in not allowing the

defendant to cro

ss-examine the vict

im on the prior fals

e accusation of rape. Therefore, we reverse the judgments of conviction and remand the case for a new trial.

___________________________________ JOSEPH M. TIPTON, JUDGE