# FILED
May 30, 1997 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE SEPTEMBER 1996 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. No. 01C01-9512- CC-00404 Appellee, ) ) Lawrence County V. ) ) Honorable Jim T . Hamilton, Jud ge ) TERRY ALLEN DOMINY, ) (Spousal Rape - 3 counts) ) Appellant. )

FOR THE APPE LLANT: FOR THE APPELLEE: Shara A. Flacy Charles W. Burson District Public Defender Attorney General & Reporter William C. Bright Michael E. Moore Assistant Public Defender Solicitor General P.O. Box 1208 Pulaski, TN 38478 Gordon W. Smith Associate Solicitor Gener al 500 Charlotte Avenue Nashville, TN 37243-0497 T. Michael B

ottoms District Attorney General P.O. Box 459 Lawrenceburg, TN 38464 Stella L. Hargrove and James G. White II Assistant District A

ttorneys General Maury County Cour

thouse Annex Columbia, TN 38401

OPINION FILED: ___________________
REVERSED AND REMANDED FOR SENTENCING
PAUL G. SUMM ERS, Judge
O P I N I O N1 Testimony indicates that the appellant became fetishly aroused when viewing se xual intercourse between hi s dog and his wife.

2 The appellant manipulated t he dog's penis unti l the dog became aroused. He then placed the dog's penis insi de his wife's vagina. -2- A jury convicted t he appellant, Terry Allen Dominy, of three counts of aggravated rape. He

was sentenced to twenty -five years on each count. The sentences were ordered to run consecutively.He raises seventeen i ssues on appeal. Upon review, we reverse and remand for substitution of three spousal rape convictions and sentencin g.

FACTS
The appellan t asked his wife to have sexual interco urse with his dog. 1 When she refused, he bound her wrists and ankl es with duct tape. He pl aced a strip of tape across her mouth. He then forced his dog to hav e sexual intercourse with his

wife. 2
The appellant's wife testified. She stated that the appellant had been drinking and smoking "dope" prior to the assault. She was "scared." She stated that the insertion of the dog's penis hurt her vagi na. The assault continued for "ten to fifteen minutes." She f urther stated that the appellant laughed while his dog was penetrating her.
On two other occasions, the appellant forced his wife to have sexual interc ourse w ith his dog. On

the seco nd occas ion, the appella nt begg ed his w ife to have sexual interc

ourse with the dog. She refused, so he slapped her and bound her with duct tape. Pr ior to the third assault, the appellant's wife had hidden the duct tape. The appellant se arched for, but was unable to find, the tape. He then physicall y and verbally as

saulted his wife until s he submitted to3 The appellan t gave a statem ent where he adm itted that his wife had se xual intercours e with his dog. He, however, maintai ned

. . . it was a mutual cons ent thing. It was my idea but I didn't force her to do it. W e had been drinking and watch ing a dirty movie and I said something about it . [She] said "[t]hat

's nasty" and I said nasty is onl y in your mind, why don' t you try it . She said okay and she went outside and go t the dog. . . .

4 "A person does not commit [aggravated rape, rape, aggravated sexual battery, sexual battery, or statutory rape] if the victim is the legal s pouse of the perp etrator. . . ." Tenn. Code Ann. § 39-13-507(a) (1991). -3- having sexual intercourse with his dog. The appellant had sexual intercourse with the victim after the dog finished. 3

LIMITED SPOUSA L EXCLUSION TO RA PE
The appellant argues that the ev idence is legally insufficient to support a conviction for aggr

avated rape. He maintains that because he was married to the victim, he cannot be conv icted of aggravated rape . The state concedes that the appellant was married to the victim and that his conviction for aggr

avated rape cannot stand. Regrettably, due to these sordid fact s, we must agree with the state's concession.
Pursuant to Tenn. Code Ann. § 39-13-507(a), one cannot commit aggravated rape or r

ape if the victim is his or her legal spouse. 4 The appellant is correct in his contention that Tennessee's spousal exclusion statut e provides him with immunity from both rape and aggravated rape prosecution. The record contains an abundance of proof sho wing the appellant and the victim were married. Moreover, the state stipulates to this fact. Accordingly, the appellant's convictions for aggr

avated rape are rever

sed. We will now address w hat crimes the appellant did commit.

SPOUSAL RA PE-4- Although the appellant's actions cannot constitute aggravated rape, his unlawful sexual penetrati on of a spouse may, however , constitute spousal rape. Spousal rape is defined as: [T]he unlawful sexual penetr ation of one spouse by the other where: (A) The defendant is armed with a weapon or any article used or fashioned in a manner to lead the victim to reasona bly believe it to be a weapon; (B) The defendant causes serious b odily injury to the victim; or (C) The spouses are liv ing apart and one (1) of them has filed for separate maintenance or di vorce. Tenn. Code Ann. § 39-13-507 (b)(1) (1991).
The appellant contends that he cannot be convicted of an offense which is not charged in the indictment or which is not a le

sser included offense of the indicted charge. Because spousal rape is not a lesse r included offense of aggravated rape, he cl aims that the most he can be conv icted of is the lesser included offense of simple assault. We disagree.
The appellant is correct in his contention that spousal r ape is not a lesser included offense of aggravated r ape. A spousal rape convi ction requires proof of a legal marriage betw

een the accused and the victi m, an element not required for an aggravated rape c onviction. Howev

er, spousal rape is a les ser grade of aggravated rape. State v. Trusty , 919 S.W.2d 305, 313-14 (Tenn. 1996). In Trusty , our Supreme Court held that a lesser grade of an indicted offense may form the basis for a convicti on as long as there is ev idence in the record to support a conviction on t he greater offense. Id

. This Court finds that the appellant can be and is convicted of three counts of spousal rape. A jury found th at the appellant had committed all of the5 The appellan t on three occasion s, forced a large do g onto his approx imately 68 pound wife. He manipu lated the dog's penis into her vagina. Th e victim testified that the dog was, appa rently, angered. The dog attempted t o bite the appell ant and did scratch the victim. A large dog, u nder these circumstances, is quite capable of causing serious b odily injury . A rational t rier of fact could,and indeed did in this cas e, find the dog to be a dan gerous weapo n. -5- elements necessary to cons titute aggravated r

ape by use of a deadly weapon. 5 The record contains an abundance of ev idence proving the appel lant and the victim were legally married. Furthermore, the state concedes that they were married. Therefore, we find the appellant guilty of three counts of spousal rape. We remand to the trial court for sentencing on three counts of spousal rape, which judgments are su bstituted for the aggrav ated rape convictions.

JUDGMENT OF A

CQUITTAL A

ND DEFENSE INSTRUC TION
The appellant argues that the tr ial judge erred in ov

erruling his motion for judgment on the aggrav ated rape convictions. The appellant's third issue as serts that the trial court err

ed in refusing to instruct the jury that legal marriage was an absolute defense to aggrava ted rape. Our reversal of the aggravated rape convictions renders these issues moot.

FAILURE TO SPECIFY MENTAL ELEMENT
The appellant argues that the in dictment failed to specify a r equisite mental element of aggravated r ape. He, therefore, contends that t he indictment is invalid and the tri al court lacked jurisd iction to try him. We disagree.
The requisite m ental elemen t of aggravated rap e is intentiona l, knowing, or reckless. Tenn. Code Ann. § 39-11-301(c) (1991). M ental elements may be implied. See State v. Marshall , 870 S.W.2d 532, 538 (Tenn. Crim. App. 1993) (holding intention to sell language necessarily implied knowing possession).-6- The appellant was charged with three counts of agg ravated rape. The indictment alleged that the appellant: did unlawfully, forcibl

y, or coercively, while armed with a weapon or article us

ed or fashione

d in a manner t

o lead [the v

ictim] reasonably to believe

it to be a weapon, sexual ly penetrate [the victim] in violat ion of T.C.A. 39-13-502, all of w hich is against the peace and dignity of the State of Tennessee. One acting forcibly ac

ts intentionally. Acc

ordingly, one could i nfer from the language in the indictment that if the appellant forcibly raped the victim, he intentionally raped the v ictim. The requisite mental element has been implied. Notwithstanding mootness , this issue is without merit.

TRIAL JUDGE RESIDING IN HOME OWNE D BY PROSECUTING ATTORNEY
The appellant argues that the tr ial judge erred in faili ng to disclose that he resided, during trial, in a residence owned by the prosecuting attorney. He contends

that the trial j udge sho uld hav

e recus ed himse lf.
The prosecuting attorney owned a farm in the area on which there were apparently four separate residences. The trial judge stayed at one of those residences during the trial. He paid the utility bill, telephone bill, and cable bill incurred during his stay.
Judges are to avoid the appearance of impropriety. Tenn. R. Supr. Ct., Rule 10. Residing on a pr osecuting attorney's property during tr ial creates an appearance of impropriety. Trial judges should refrain from such activity. Even if the situation is innocent, i t appears improper.
The appellant frames the issue as an abus e of discretion. The appellant, however, has not prov

ided this Court with a transcript of the recusal motion. We must presume that the trial cour t ruled correctly w

hen the record we are-7- reviewing is incomplete. State v. Ma thews , 805 S.W.2d 776, 784 (Tenn. Crim. App. 1990). Notwithstandi ng waiver, w e are unable to find, under a plain error analysis, that the appell ant was prejudiced by the trial judge's act ions. This issue is without merit.

EVIDENCE OF PRIOR RA PE
The appellant argues that the trial judge committed reversible error in refusing to allow a compl ete offer of proof. We disagree.
At trial, appellant's counsel moved to offer evidence pursuan t to Tenn. R. Evid., Rule 412. The tri al judge permitted the appell ant to call several w itnesses in making his offer of proof. The victim was called as a witness. The appellan t's counsel asked her if she was raped by her brothers when she was thirteen years old. The victim responded affirmat ively. Counsel as ked her whether a dog w as used in the rape. She again r esponded affirmatively. Couns el then asked whether the dog was placed on top of her. The state objected. Th e court refused to allow counsel to continue.

The victim's brothers t

estified in the appellant's offer of proo f. J. B. denied having knowledge

of his sister being raped when she was a teenag er. W. B. also denied having know ledge of the alleged rape. W. B. was th en asked whether his sister w

ould be lying if she sai d that he raped her with a d og when she was thirteen. He r esponded, "I don't know. Di d she say that?"
The appellan t maintains tha t he was erroneous ly prevented from making a complete offer of proof. In a relat ed issue, the appellant asserts that he should have been allowed to offer ev idence, pursuant to Tenn. R. Ev id., Rule 412(b) and (c), of the victim's

prior rape. He argue

s that the evidence was both relevant and admissible as impeachment ev idence.6 The proffered evidence was also inadmissibl e to show a propensity to fabricate a complaint of rape with a dog. Whether sexual cont act occurred was not a disp uted issue. The appellan t admitted that the sexual behavior occurred. His posi tion, however, was that the sexual behavior was consensual. -8- Rule 412 permits introducti on of a victim's sexual history to prove c

onsent under very limited circumstances. First, the evidence must be of "specific instances of [the] victim's sex ual behavior . . . with persons other than the accused." Tenn. R. Evid., Rule 412(c)(4) (emphasis added). Both "instan ces" and "persons" are plural. The pl ural form is significant because Rule 412 requires that the evi dence be of a "pattern" of sexual behav ior. Accordingly , to satisfy the stringent r

equirements of Rule 412, the appel lant must proffer admissible testimony from mult iple witnesses rela ting multiple incidents

of sexual behavior.
The appellant's offer of proof referred to a si ngle prior incident of sex ual behavior. This singl e incident did not establish a pattern of conduct as requir ed by Rule 412. Moreov

er, the victim testified that the prior sexual beha vior was nonconsensual. Evidence of the pr ior nonconsensual act did not prove consent to the instant charged acts. The evidence was, therefore, not adm issible as Rule 412 impeachment evidence on the is sue of consent. 6

PRIOR STATEMENT
The app ellant ar gues that a statem ent he ma de to the police sh ould have been excluded from trial. He argues that the statement showed a prior bad act
an d t ha t t he stat e f ai le d t o p ro

vi de pr op er noti ce to in tr od uc e t he

stat em en t. We disagree.
The appellant provided the poli ce with a written statement. The statement was in response to the q uestion, "What can you tell me about the alleg ations that you forced your wife to have sex with y our dog?" The appellant responded:-9- Yes, but it was a mutual consent thing. It was my idea but I didn't force her to do it. We had been drinking and w atching a dirty movie and I said something about it. [The victim] said "That's nasty" and I said nasty is only in your mi nd, why don't you tr y it. She said okay and she went outside and got the dog. She laid back on the couch and the dog li cked her and she had an orgasm. Within five minutes I had sex with her. I would rather s he do it with my dog than a friend because the dog don't know any bett er. The first time it happened was at her mother's house on New Year's about four months before we were married. The other time wa s August of 1993 at our house in Leoma. I never forced her to do it. The statement was reduced to writing and introduced at trial.
The statement was admissible as a party-opponent admission . Tenn. R. Evid., Rule 803. Moreo ver, exculpatory

statements, proven false, ev idence a consciousness of guilt. The s tatement was, therefore, both re levant and admissible. This issue is without merit.

VICTIM'S TAPED STATEMENT
The appellant next assigns error in the trial c

ourt's decision to allow the jury to hear an audiotape of the victim's interv iew with the Depar

tment of Human Services (DHS). He argues that the tape w as inadmissible hearsay and contained "prejudicial ass ertions." In the alternativ e, he argues that if the tape had been admissible, certain pr ejudicial information should h ave been redacted.

The record indicates that on cr oss-examination, the appell ant's counsel opened the door for the tape's admissi on. The appellant did not raise o bjections on the grounds that the tape contai ned evidence of prior bad acts or was improper bolstering. M oreover, the appellant's counsel did not request a redaction. Accordingl

y, the issues regar

ding the DHS tape are eith er meritless or have been waived.-10- EXCESSIVE SENTENCE
The appellant argues that his sentence was excessi ve and that consecutive sentences were improper.
The appellant was sentenced on three counts of aggravated rape, a Class A felony. We have reversed those conv ictions and found the appellant gu ilty of three counts of spousal rape. Spous al rape is punishable as a C lass C felony. The case is, therefore, remanded for sentencing on the spousal rape convictions. The trial

court will decide whether the new sentences shall run consecutively.

PHOTOGRAPHS
The appellant next assigns error in the trial j udge's admission of photographs. He argues that the photographs were prejudicial and irrel evant. We disagree.
The admissibility of photogr aphs rests within the s

ound discretion of the trial court. The trial court's decision shall not be overturned unless it affirmatively appears that the admission has affected th e results of the trial. State v. Melson , 638 S.W.2d 342, 365 (Tenn. 1982); see also United States v. Brady , 595 F.2d 359, 361 (6th Cir. 1979). "The trend of mode rn authority is to vest more discretion in the trial

court in this respect." State v. Banks , 564 S.W.2d 947, 949 (Tenn. 1978). Moreover, w e cannot substitute our judg ment for that of the trial court. State v. Weaver , No. 4 (Tenn. Crim. App. Jan. 3, 1985). To overturn in the abse nce of an affirm ative fin ding of a buse of discretio n and pre judice, we merely supplant the trial judge's judgment wi

th that of our own.-11- The appellant has not affirmatively demonstrated that admission of the photographic evidence pr ejudiced the jury's v

erdict. The photographs depic ted the victim's emaciated co ndition. They corroborate d the victim's testimony that the appellant would not let her eat and that she was too w eak to resist the sexual assaults.

Banks recognizes the "policy of liberality in the admission of evidence in both civil and crimi nal cases, including the admission of photographs." Banks , 564 S.W.2d at 949. The trial court weig hs the probative value against prejudicial effect. We can not substitute our judgment for that of the trial court or de clare error absent a finding that the trial judge abused his discretion. Melson , 638 S.W.2d at 365.

We have reviewed both the record an d the photographs. We find neither an abuse of discretion nor prej udice. This issue is dev oid of merit.

EVIDENCE OF THE A LLEGED STARVA

TION
The appellant next assigns error in the trial c

ourt's decision to allow the jury to hear evidence that the appellant withheld food from the victim. He argues (1) that the evidence cons tituted prior bad acts and the state failed to file a written notice of intent to use the evidence, and (2) that the evidence was irrelevant and its probative value was outweighed by the danger of unfair prejudice.

I
The appellant raises the issue of written notice compliance f or the first time on appeal. This issue is waived.-12- II

Evidence of other crimes or wrongs is inadmis

sible to show propensit y. Such evidence may be admiss ible, however, to s how identity, motiv e, common scheme or plan, intent, or rebuttal of accident or mistake . Tenn. R. Evid., Rule 404(b) and Advisory Commission Comments.

The evidence is admissible under Rule 404(b). The evi dence was relevant to show int

ent. A reasonable inference ex ists that the appellant intentionally starv

ed the victim to keep her w eak and undernourished. In a weakened state, the vic tim would be unable to resi st his assaults. The appella nt has not shown that the tria l court abused its discr etion in admitting the ev idence.

EVIDENCE OF THREA TS AND VERBA

L ABUSE
The appellant argues that the tr ial court erred in permi

tting testimony that the appellant threatened and ver bally abused the vict im. Testimony revealed that the appellant threatened to ki ll the victim if she soug ht a divorce. The appellant asse rts that the test imony was inadmiss ible evidence of other wrongs because: (1) no written notice was provi ded, (2) the evidence w as within the purview of Tenn. R. Ev id., Rule 404(b), and (3) the probative value w

as outweighed by the dang er of unfair prejudice.

We have reviewed the record. N o objections were rai sed concerning compliance with a wr

itten notice requirement. Substantively, w e are unable to state that the trial judg e abused his discretion in admitting the evidence. Moreover, in light of the evidence, error, if any, was harmless. This issue is without merit.-13- INT ROD UCT ION OF T HE C ALEN DAR
The appellant argues that the tr ial court erred in permi

tting the introduction of the victim's calendar. The victim had inscribed the word "dog" on the dates in which the alleged sex

ual assaults occurred. The appellant maintains that pursuant to Tenn. R. Crim. P., Rule 16, he should have been al lowed to examine the original calendar prior to trial. He also asserts that the evidence is inadmis sible hea rsay.
The state argues that a copy of the original calendar w as provided to the appellant prior to trial . The state alleges that the appellant's trial counsel did not object to being provided with copies. The record does not indicate that defe nse counsel found t his arran gement u nsatisf actory.
The appellant has not demonstrated prej udice. The witness testified that she was raped on the dates mar ked on the calendar. This iss ue is without merit.

EXCULPATORY EVIDENCE
The appellant alleges that ex culpatory evidence w

as withheld from the defense. Specifically, he cl aims that a videotape depicti ng the victim and the dog showed that the dog was not a deadly weapon. He claims that this videotape was "probably" in the possession of the victim or her family and should have been turned over to t he defense.
The record is devoid of any proof that the videotape was in either the state's or the victi m's possession. We find no affirmative evidenc e that the state suppressed the videotape. The appellant has not demonstrated that the evidence was favorable. Moreover, we find it questionable whether the evidence was material. The recor d shows that a male dog may possess a great-14- disposition yet turn dangerously violent when the animal's genitalia are manipulated in the manner testified t o in this case. This iss ue is without merit.

IMPROPER COMMENTS TO THE JURY
The appellant's last issue ar gues that the bailiff made improper comments to the jury during del iberations. While deliberating, the jury requested sev eral exhibits. Defense counsel objected, and the trial judg e denied the jury's req uest. The appellant claims that the jur y foreperson then informed the jur ors that they could not examine exhibits because the defense had objected.
The appellant's unfounded assertion appear s to be purely speculati ve. The claim is not supported by the record. Neither the j ury foreperson nor any juror testified that the foreper son made the objectionable statement. The trial judge found that the bailiff did not communi cate improperly wi th the jury. The evidence does not preponderate against this finding. Thi s issue is without mer it.

CONCLUSION

When our General Assemb ly debated the limited spousal exclusion bill,
we are sure that the y never cont emplate d as bizarre a set of f acts as we h ave here. One cannot imagine the bas e, vile, and inhumane acts th at the appellant perpetrated upon his wife. We are also cer tain that the legislatur

e would want this type of criminal cond uct to be punishable as more than a Class C felony. Hopefully, our legisl ature will address this issue and assess an appr opriate penalty for this wicked conduct.
The appellant is convicted of three counts of spousal rape for the reproachable crimes he committ ed against his wife. H e will be sentenced for these crimes by the tri al court and judgment wi ll be entered accordingl y.-15- inadmissable

________________________________ PAUL G. SUMMERS, Ju dge
CONCUR:

___________________________ GARY R. WADE , Judge

___________________________ L. T. LAFFERTY, Special Judge