# FILED
January 21, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE OCTOBER 1998 SESSION

STATE OF TENN ESSEE, ) ) NO. 01C01-9803-CR-00115 Appellee, ) ) PUTNAM COUNTY VS. ) ) HON. LEON BURNS, JR ., TRACY STEWA

RT MULLINS, ) JUDGE ) Appellant. ) (Aggravate d Sexual B attery)

FOR THE APPELLANT : FRANK LA

NNOM B. KEITH WILLIAMS 102 E. Main Street Lebanon, TN 37087 (On Appeal) DAVID N. BRADY District Public Defender TERRY D. DYCUS H. MARSHALL JUDD Assistant Dist. Public Defenders 215 Reagan Street Cookeville, TN 38501-3404 (At Trial) FOR THE APPEL LEE : JOHN KNOX WALKUP Attorney General and Repor ter KIM R. HELPER Assistant Attorney Gener al Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 WILLIAM E. GIB SON District Attorney General JOHN B. NISBET III SHAWN FRY Assistant

District Attorney

General 145A S. Jefferson Avenue Cookeville, TN 38501-3424

OPINION FI LED:

AFFIRMED

JOE G. RILEY, JUDGE2 OPINION The defendant was charged with one count of aggravated rape; a jury convicted him of aggravated sex ual battery. He was

senten ced as a Range I standard offender to twelve year s in the Department of Correction. In t his direct appeal, the defendant raises the fo llowing issues:

(1 ) whe ther aggravated sex ual battery is a less

er included or lesser gr

ade offense of aggravated rape; (2) whether he receiv ed constitutionally adequate notice of the lesser

charge of aggravated sexual battery since the indictment charged only aggravated rape; (3) whether certain hearsay statements by the victim were properly admit

ted; and (4) whether his sentenc e is excessive. Upon our review of the r ecord, we affirm the judgment of the trial court.

I. FACTS During the early morning hour s of June 22, 1996, the defendant and the victim were riding tog ether in a car with s everal other people. They stopped at a place near the defendant’s mothe r’s hou se, and the defendant and the victim walked together into a wooded ar ea. According to the vi ctim, the defendant insisted
on engaging in sexua l relations. She refused. H e pushed her tothe ground, ripped off her shorts and panties, tore her shirt, and attempted to have in tercour se with her. At one point he threatened her with a small pocketknife. During the s truggle, the defendant hit the victim, pushed her head and f ace in to the ground, and scratched her chest. Although t he defend ant was unable to perform intercourse with the victim, he did penetrate her with his fingers. Eventual ly, the de fendant go t up to urinate and the vic tim ran to a nearby house. The defendant followed her. The victim pounded on the door, and James Qualls let her in; the defendant followed shortly thereafter. The victim attempted to call 911, but the defendant hung up the phone. Qualls separated the two, and the police were eventual ly called. Maxine Qualls, James’ wife, tes tified that the victim w

as “crying

and shaking3

and. . .upset” and said, “[h]e raped me; he raped me.” She described the victim’s appearance as follows:

She had on a pair of bluejean shorts, had the straddle cut out of t hem . They were split up both sides. She had on a sleeveless shirt. It had no buttons. She had a cut or a scratch on the left s ide of her breast. She had grass and weeds in her hair. Mrs. Qualls further testified that the victim w as not wearing underw ear. The police arr ived and t ook the d efenda nt into cu stody. In his statement to Officer Alton C. Allen II, the

defendant admitted that he “wanted some,” but denied i nserti ng his fingers into the v ictim. However, Dr. Wendell Bruce Thomas, who performed an examination upon the vi ctim after the attack, foun d dirt and leaves inside her

vagina. He testified that this was consistent with thevictim bei ng thrown down in a wooded area and h aving one or more finger s inserted into her vag ina.

II. LESSER OFFENSE The defendant first contends that the tri al court erred when it gave the jury
an instruction on aggravated sexual battery. He argues t hat aggra vated sexual battery is neither a lesser includ ed, nor a lesser grade offense of aggr avated rape. The state disagrees. We note that a trial judge “must instruct the jury o n all lesser grades or classes of offenses.” State v. Cleveland , 959 S.W.2d 548, 553 (Tenn. 1997). One offense is a “lesser included” of another “‘only if the elements ofthe greater offense,
as those elements are set forth in the indictment, include but are not congr uent with, all the elements of

the less er.’” Cleveland , 959 S.W .2d at 553 (quot ing State v. Trusty , 9 19 S.W.2d 305, 310 -11 (Tenn. 1996)). A “lesser grade” offense is established by statute. “One need only look to the statutes to determin e w hether
a given offense i s a less er grade or class of the crime charged.” Trusty , 919 S.W.2d at 310. The offense of aggravated sexual battery is committed

when a person has unlawful sexual contact with the victi m b y usi ng force or coercion and a w eapon. See Tenn. Code Ann. § 39-13-504(a)(1 ). Aggravated rape, as charged in the4

instantindictme nt, is com mitted wh en a perso n sexually p enetrat es the vi ctim by using force or coercion and whi le armed with a weapo n. See Tenn. Code Ann. § 39-13-502(a)(1). The evidence in this c ase s upports a charge of aggravated sexual bat tery. Therefore, if aggravated sexu al battery is either a lesser included, or a l esser grade offense of aggravated rape, the trial court did not err by instructing the jury on this offense. As indicated above, aggravated sexual battery is not a lesser

included offense of aggravated rape since it requires an element that ag gravated rape does not: the sexual contact must be for the purpose of sexual arousal or gratification. However, aggravated sexual battery is a lesser grade or class offense of aggravated rape. The sexual assault cri mes are divided into the gra des of aggravated rape, rape, aggravated sexual battery, sexualb attery, and rape of a child. See Tenn. Code Ann. § 39-15-502 through -505,-522; State v. Ealey , 959 S.W.2d 605, 611 n.5 (Tenn. Crim. App. 1997). Because the evidence in this case supports a c harge ofaggravated sexual battery, and since aggravated sex ual bat tery is a lesser g rade or class offense of aggravatedrape, the trial court’s instruction to the jury

was proper. This iss ue is without merit.

III. CONSTITUTIONA L ISSUES The defendant next contends that a conv iction for aggravated sexual

battery based upon an indictment for ag gravated rape is unconstitutional unde r both the state and federal constitutions. Specifically, he complains that the indictment failed t o provide him with adeq uate notice of the lesser charg e and fails to protect hi m from double jeopardy.

A. Ad equate Notice Our Supreme Court acknowledg ed that “Tennessee law recognizes tw o types of lesser offenses that may be incl uded in the offense charged in an indictment and,5

may, therefor e, for m the basis for a convicti on: a lesser grade or class of the charged offense and a lesser included off ense.” Trusty , 919 S.W.2d at 310. T hus, notice of the charged offense includes notic e of all lesser included and l esser grade offenses. See State v. Banes , 874 S.W.2d 73, 80 ( T enn. Crim. App. 1993) (“An indictment

charging a greater offense impliedly charges all lesser included offenses forwhich the proof would support a conviction.”) Otherwise, the prosecutor would have to separately charge the accused with every possible lesser gra

de and lesser included offense arguably supported by the evidence. Our consti tutions simply do not impose such a burden. This issue is without merit.
B. Double Jeopardy We further

reject the defendant’s contention that the instant indictment fails to protect him from double jeopardy. The tr ial on the primary char

ge of aggravated rape was also a trial upon all lesser offenses. See State v. Tutton , 875 S.W.2d 295, 297 (Tenn. Crim. Ap p. 1993) (“W hen there is a tria l on a single charge of a felony, there is also a

trial on all lesser

included offenses, ‘as the facts may be.’”) (citation omitted). Any future attempt by the st ate to prosecute him for this offense would be barred by

double jeopardy

principles. See, e.g. , State v. Byrd , 820 S.W.2d 739, 741 (Tenn. 1991). This issue is without merit.

IV. HEARS AY The defendant’s next contention is that the trial court erred in admitting the testimony

of Melinda Kay Qualls wherein she repeats statements of the vi ctim overheard in her parents’ home. During her testimony , Ms. Qualls stated that th e victim said the defendant raped her, that he forced her “to do things,” and that “he
wa s cutting her tryin g to make her do what he w anted her to do.” The defendant contends that “[a]dmission of these prej udicial state ments violated the rules o f evidence.”The trial court allow ed the t es timony based on the excited utterance6

exception to the hearsay ru le. See Tenn. R. Evid. 803(2). The t rial court was correct. An excited utterance is a hearsay statement “rel ating to a startling event or condition made while the declarant was

under the stress of excit ement caused by the event or condition.” Id. Here, the victim’s statements were made immediately following her escap e from th e defen dant and while visibl y u pset from the event. These statements are classic ex amples of excited utteranc es and were properly admitted. This issue is without merit.

V. SENTENCING Finally, the defendant complains that his tw elve-year

sentence is excessiv

e. The trial court imposed

the maximum sentence on the basis of defendant’s cr iminal record which includeda prior rape conviction. See Tenn. Code Ann. § 40-35-114(1) (enhancementis appropriate where the defendant has a previous history of criminal convictions). The defendant offered no proof of mitigating factor s at th e h earing, and the trial court found none. When a defendant challenge s the leng th of his sentenc e, we must conduct
a de novo

review with a presumption of correc tness. Ten n. Code Ann. § 40-35- 401(d). This presumption, howev er, “is conditioned upo n t he affirmative showing in the record that the

trial court considered

the sentencing principles and all relevant facts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). The burden of showing that the se ntence is improper is upon th e defendant. Id. Tenn. Code Ann. § 40-35-210(c) provides that the presumptive sentence is the minimum sentenc

e withi n the ran ge. If there a re enhancing and mitigati ng factors, the court must start at the mini mum sentence in the range and enhanc e the sentence as appropriate for the enhancement f actors and then reduce the sentence within the range as appropriate for the mitigatingfactors. If there are no mitigating factors, the court may set t he senten ce above the minimum in that range but still within the range.7 Defendant’s complaint that the trial court erred by sentenci ng him to the maximum sentence based upon one enhancement factor i s without merit. T h e weight given to enhancement factors is left to the discretion of th e trial court as long
as the trial court complies with the purposes and pri nciples of the s entenc ing act and its findings are supporte d by the record. State v. Moss , 727 S.W.2d 229, 238 (Tenn. 1986); State v. Leggs , 955 S.W.2d 845, 848 (Tenn. Crim. App. 1997). The defendant had a criminal history including a prior conviction for rape. The trial court gave great weight to th is enhancement factor. It did not abuse its discretion in doin g so. This issue is without merit.

VI. CONCLUSION After a careful review of the r ecord, we AFFIRM the judgmen t of the trial court.8 _____ ________________

_______ _ JOE G. RILEY, JUDGE

CONCUR:
(Not Participating) PAUL G. SUMM ERS, JUDGE

JOSEPH M. TIPTON, JUDG E