### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE July 2000 Session
STATE OF TENNESSEE v. CALVIN OTIS TANKSLEY
Direct Appeal from the Criminal Court for Davidson County

No. 96-C-1239, Seth Norman, Judge

No. M1998-00683-CCA-R3-CD - filed October 4, 2000

The app ell ant , Ca lvi n Ot is T ank sle y, was convicted by a Davidson County Jury of one count of rape of a child and

one count of attempted rape of a child. Based on his classification as a repeat violentoffender, the appellant was sentenced upon each count to two consecutive sentences of life withoutparole. Upon appeal, the appellant raisesthe following issues: (1) whether the evidence was sufficient to support the verd

icts; (2) whether

the court erred

in ruling the defendant’s prior bad acts could be introduced by the State if the defendant presented an alibi defe nse; (3) whether the court erred in allowing the Sta

te to introduce ove

r four hundred pa

irs of women’s und

ergarments

seized from the defendant in an investigation in another county; (4) whether the tr ial court erred in not suppressing the photographic array; and (5) whether the appellant qualified for sentencing asa repeat violent offender. Finding no reversible error, the judgments are affir med. Tenn. R. App. P. 3; Ju

dgment of the Crim

inal Court affirmed.

D A VID G. H A YES , J., delivered the opinion of the court, in which T HOMAS T. WOODALL , J. and N ORMA M C G EE O GLE , J., joined. James Robin McKinney

, Jr., Nashville, Te

nnessee, for the

appellant.

Paul G. Summers, Att

orney Gener

al and Reporter,

Michael Moore, So

licitor General

, Todd R. Kel ley, Assista

nt Attorney General, Victor S. (Torry ) Johnson, III, District Attorney General, and John Zimmermann, Assistant District Attorney General, for the appellee, State of Tennesse e.

OPINION

The appellant, Calvin Otis Tanksley, was indicted for the offenses of rape of a child and the attemptedrape of a c hil d by a Davidson County Grand Jury. T

he State gave no

tice of its intent to seek enha nced punishment as a repeat violent offender under the “three strikes” statute for eac h1 Both rape of a child and attempt ed rape of a c

hild are classi fied as violent offenses. Tenn. Code Ann. § 40-35- 120(b)(1)(F).

2 “Consistent

with our policy,

we will withhol d the iden

tity of young childr en involved in sexual abu se cases.” State v. Schimpf

, 782 S.W.2d 186 , 188 n.1.(Tenn.Crim.App. 1989).
-2- offense. 1 Following his convictions by a jury for both off enses, the trial court sentenced the appellant to two consecutive life sentences without parole, pursuant to Tenn. Code Ann. § 40-35- 120. The appellant has timely appealed to this Court asserting the following errors: (1) the evidence
was insufficient to support the verdict; (2) the trial court erred by ruling that the defendant’s prior bad acts could

be introduced by the State if he provided alibi witnesses; (3) the trial court erred by introducing several hundre d pairs of women’ s undergarmen ts seized from the de

fendant; (4) the trial court erred by

not suppressing the photographic array; and (5) the tr ial court failed to comply

with the requirements of Tenn. Code Ann. § 40-35-120 when it sentenced the defendant to life without parole as a violent offe

nder. Upon revie

w, we affirm the ju dgment of the Criminal Court of Dav ids on C oun ty.

Background

On May 6, 1995, Tanya Brig gs gave her six-year-old niece, B.B., some change and asked

her to go purchase a soft drink from a machine located inside the lau ndr y room of her apartment complex. 2 As B.B. entered the laundry room, she encountere d the appellant

who asked her

“Do you want any panti es?” The appellant the

n grabbed B.B ., put his hand over her mouth, and placed her
on the floor. He pulle

d B.B.’s shorts

and panties down and proceeded to digitally penetrate B.B .’s vagina. The appellant next at tempted to make B.B. perform oral se x upon him. He placed

his penis
on B.B .’s li ps, but she never opened her mouth. The appellant stood B.B. up and she urinated on herself. When he saw through the l aundry roo

m windows that two pe

ople were about t

o enter the building, he placed B.B. back on the floor, told her to pull her pants up, and immediately left the laundry roo

m. Kimberly Gilkeson and her h

usband, Jimmy Gi

lkeson, lived in

the same apartment complex andhad just parked dir

ectly in fro

nt of the l aundry room. Kimberly parked he r car beside the appellant’s car, which was backed into the pa rking spot. Both K

imberly and

Jimmy immediate

ly noticeda young blond-headed male child, bu ckled into a car seat, in the appellant’s car. As Kimberly was att empting to exit her car, the appellant walked out of the building. Due to the position of Kimberly’scar in relation to the appellant’s c

ar, Kimberly

had to wait for the appellant to get into his car before she could exit her vehicle. The rapist said “hello” or “somethinglike that” to Kimberly, got in his car, and left. Kimberly testified that she made eye contact with the appellant and observed him f

or approximately 15 seconds.

Kimber ly, followed shortly thereafter by

her husband, proc

eeded into the lau

ndry room. When she entered the facility, she found B.B. “hysteric

ally cry ing and upset.” B .B. repeatedly told Kimberly and her husband that “that man tried to kill me.” B.B.’shair was “real disheveled on her-3-

head, kind of

standing up in parts.” There was also change scattered across the floor of the laundry
room. Kimberly and her husband took B.B. back to her aunt’s apa rtment and then returned to the laundry mat. Upon returning, Kimberly noticed a puddle of urine in the floor and wiped it up with a pair of panties she found in the floor of the laundry room. I. Sufficiency of the Evidence

The appellant

asserts that the evidence produced at trial was insuff

icient to support the

guilty verdicts. Specifically, he alleges that “there was no phy sical evidence, either f

ingerprint,DNA, fibers, or any other evidence whatsoever” to link him to the crimes. The appellant further contends that the evidence was deficient because B.B. failed to identify him at trial.

A jury conviction removes the presumption of innocence with which a defendant is cloaked andreplaces it with one of guilt, so that on appeal, a convicted defendant has the burden of demonstrating that the evidence is insufficient. State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982). In determ ining the sufficiency of the evidence, this Court does not reweig h or reevaluat e th e evidence. State v. Ca bbage , 571 S.W.2d 832, 835 (Tenn. 1978). Likewise, it is not the duty of this Courtto revisit questions of witness

credibility on appeal, that function being within the province of the trier of fact. See generally State v. Adkins , 786 S.W.2d 642, 646 (T enn. 1990); State v. Burlison , 868 S.W.2d 713, 718-19 (Tenn. Crim. App. 1993). Instead, the defendant must es

tablish that the evidence pr

esented at trial w

as so deficient that no reasonable trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979); State v. Cazes , 875 S.W.2d 253, 259 (Tenn. 1994), cert. denied , 513 U.S. 1086, 115 S.Ct. 743 (1995); Tenn. R. App. P. 13(e). Mo reover, the State

is entitled to

the strongest legitimate view

of the evidence

and all reasonab

le inferences w

hic h ma y b e drawn therefrom. State v. Harris , 839 S.W.2d 54, 75 (Tenn. 1992), cert denied, 507 U.S. 954, 113 S.Ct. 1368 (1993).

In the present case, both Kimberly and her husband, Jimmy,

identified the ap

pellant from a pre-trial photographic a

rray, and again at trial,

as the same person who was exiting the laundry room immediately

after B.B. wa

s sexually assaulted. No other

person was observed in the laundry room
or in the immediate vic

inity of the v

ictim. The vic

tim’s aunt testi

fied that B.B. returned to her apartment “hysterical” and

had urinated on herself. Such testimony corroborates both the victim’s testimonyand the testimony of Kimberly an

d Jimmy. B.B. i

mmediately t

oldher aunt that “that man had tried to kill her” and subsequently explained that he had touched her private parts.

Add iti ona lly, the description of the rapist’s car

matched the vehic

le driven by

the appellant. Both Kimberly and Jimmy testified that a y oung blond-headed boy was in the rapist’s car when they arrived at the laundry room. At the time of the incident, the appellant had a child of like description andage. Although the appellant had somewhat changed his appearanc e at the ti me of trial, the physical appearance of

the appellant als

o matched the desc

riptions given by

B.B. and the oth

e r witnesses as that o

f the rapist.-4-

The appellant was co nvicted of r ape of a child an d attempted rape

of a child. In

order to convict the appellant of rape of a child, the jury must find (1) unlawful sexual penetration of a victim by the defendant, a

nd (2) the victim

was less than thirteen years old. Tenn. Code Ann. § 39-13-522. Likewise, “a person commits criminal attempt who, acting with the kind of culpability required

for t he offense ... [a]cts with intent to complete a course of action ... and the condu ct constitutes a substantial step toward the commission of the offense.” Tenn. Code Ann. § 39-1 2-10 1(3). Proof of sexual penetration and attempted sexual penetration was established through the testimony of the six-year -oldvi ctim. The identity of the appellant as the person who committed these crimes was establ ished circ umstantially by the testimony of Kimberly and Jimmy Gilkeson. Circumstantial evid ence alone is sufficient to support a conviction. State v. Buttry , 756 S.W.2d 718, 821 (Tenn. Crim. App. 1998). If a conviction is based purely on circumstantial evidence, however, the facts and circumstances must be so overwhelming as to exclude any other explanation except for the defendant’s guilt. State v. Black , 815 S.W.2d 166, 175 (Tenn. 1991); Statev. Tharpe , 726 S.W.2d 896, 900 (Tenn. 1987). Havingthoroughly reviewed the record, we conclude that the evidence was sufficient to esta

blish the elements o

f the offenses be

yond a rea

sonable doubt.

II. Alibi Defense

The appellant contends that the trial court erred by ruling that the State could introduce
e vidence of the appellant’ s prior bad acts if he introduced an

alibi defense. I

n response, the Sta

te contends that the trial cour t did not err beca

use the appellant

“ mad e identity a central issue by asserting an alibi defense.”

It is well-established, of course, that in a crimina l trial, evid

ence that the defendant has committed some other crime wholly independent of that for which he is charg ed, eventhough it is
a crime of the same character, is usually not admissible because it is irrelevant. Bunch v. State , 605 S .W.2d 227, 229 -230 (Tenn. 1980) ; State v. Parton , 694 S.W.2d 299, 302 (Tenn. 1985). The holdings of both Bunch

and Parton are embodied in the Tennessee Rules of Evidence, Rule 404(a) and 404(b) , and were adopted by the General Assembly , effective January 1, 1990. Rule 404( b ) provides: (b) Other Crim

es, Wrongs,

or Acts. Evidence of

other crimes wro

ngs, or acts is notadmissible to prove the character

of a person in

or der to show action

in conformity

with the character trait . It may, however, be admissible for other purposes. The conditions which must be satisfied before allowing such evidence are:
(1) The court upon request m ust hold a hearing outside thejur y’ s presence; (2) The court must determine that a materi al issu e exists otherthan conduct conforming with a character trait and must upon request state
on the record the material issue, the ruling, and the reasons for admitting the evidence; and-5-

(3) The court mus t exclude the evide nce if its probative value is outweighed by the danger of unfair pre judice.

The general rule excluding evidence of other crimes is based on the recognition that such evidence easily results in a jury improperly convicting a defendant for his or her bad chara cter or apparent propensity

or disposition to commit a cri me regard less of the strength of the evidence concerning the off ense on tri al. State v. Rickman , 876 S.W.2d 824, 828 (T enn. 1994); See also Anderson v. State , 56 S.W.2d 731 (1933). There are, however, exceptions to Rule 404(b). Although Rule 404(b) does no t explicitl y list these exceptions, case law has held that evidence of other crimes may be admissible

to s how (1) mot ive ; (2 ) in ten t; ( 3) gu ilt y kno wle dge; (4) ide nti ty o f the defend ant; (5) absenceof mistake; or (6) a common scheme o r plan for co mmission of two or mor e crimes so related to each other that proof of one tends to establish the othe r. Coll ard v. State , 526 S.W.2d 112, 114 (Tenn. 1975); Sta te v . Ho yt , 928 S.W.2d 935, 944 (Tenn. Crim. App. 1995).

In the present case, the appellant sought to introduce an alibi de fense in response to the allegations made against him. After conducting a Rule 404(b) hearing, the tria l court ruled:

THE COURT: Now if you are contesting, or if you are advancing an a lib i the ory, then tha t pu ts identity right square at issue. And identity is one of the exceptions to 404 that allows evidence of this nature.

THE COURT: What I’m telling you is this: Tha

t if you advance your

theory of alibi, in all probab

ility, this mate

rial is going t o be admissible. Until you open the door it is not admissible.

***

MR. MCKINNEY: Just so I’m clear: Your Honor is go ing t o exclude th e

evidence in their case in c hief, as far as t

h e se specific instances of conduct, unles s I open the door, and Your Honor is going to allow

them to offer it in th

eir rebuttal.

THE COURT: That’s correct. That’s exactly what I’ ll do.

When the trial court substantially complies with the requirements of Rule 404(b), we review the trial
c ourt’s determination for an abuse of discretion. State v. DuBose , 953 S.W.2d 649, 652 (T enn
. 1997).

The State con tends that evidenc e of the appellan

t’s commission of “o

ther crimes” is admissible

under the common scheme or plan exception. In Tenn essee, there are three types of common scheme or plan evidence: (1) offenses that reveal a distinctive design or are so similar as to constitute “signature” crimes; (2) offenses that are part of a la rger , co nti nui ng pl an o r con spi racy;-6-

and(3) offenses that are all part of the same criminal transaction. Sta te v . Ho yt , 928 S.W.2d at 944. “The most common basis for offering evide

nce of a distinctiv

e design is to esta

blish the identity of the perpetrator.” State v. Shirley , 6 S.W.3d 243, 248 (Te nn. 1999); see als o State v. McCary , 922 S.W.2d 511, 514 (Tenn. 1996). If a distinctive design can be shown , the evidence of offenses
co nstitu ting a common scheme or plan are relevant, and therefore, admissible. State v. Shirley , 6 S.W. 3d at 248. Before multiple offenses may be said to be a distinctive design, howe ver, the “modus operandi employed must be so unique and distinctive as to be like a signature.” Id. ; State
v. Carter , 714 S.W.2d 241, 245 (Tenn. 1986). Although the offenses do not have to be identical in every respect, the methods used in committing the offenses must have “such unusual particularities that reasonable men can conc lude tha t it would not likely be employed by different persons.” Id. “Only when the method used

to commit the cr imes is so unique as to be like a signature can the inferenceof iden t ity properly arise.” Id. In the present case, the identity of the ra pist would have become the central issue had the appellant relied upon a def

ense of alibi. The appellant’s alibi was that he met a female friend in a parking lot on May 6, 1995, from 1:45 p.m. to 3:30 p.m. to work on her computer. At tria

l, the State argu

ed that two of the a

ppellant’s past

offenses w ere, in fact, “signature” crimes, and ther efore, admissible

if the appellant u

tilize d an alibi defense. We agree that two of th e appel lant’s past acts were “signature crimes” and find the trial court’s ruling was proper.
The acts which the trial court would have introduced as signature crimes, had the appellant presented his alibi defense, consisted of two prior acts. The appellant pled no-contest on one charge andthe other charg

e was dis missed. The fi rst incident occurred during late afternoon on May 7, 1995, in an apartment complex known as Pheasant Run Apartments. A three-year-old girl had be en playing in front of an apartment building when she was appro a ched by a w hite male who aske

d if she wanted t o go with him to get some hamburgers. She declined the offer. The appellant got out of his car and followed her into the stairwell. The appellant took thevictim farther up the stairwell, removedher panties, and

asked if he “could lick her pee pee.” When the child said no, the appellant digitally penetrated her

with his finger a

nd asked her to tou

ch his genital ar

ea. The child

refused to touch the appellant. The appellant then put her panties back on and left. A five-year-old friend of the victim witnessed the incident. The victim described the rapist as a white male, app roximately six feet tall, with a long, dark ponytai l. She also de scribed th e rapist’s c ar as blue wi th a luggage rack and an antenna. The victim identified the appellant as her rapist in a photo lineup.

The second incident took place during the afternoon of May 27, 1 995, i n an apartment complex known as Wessington House A partments. Several children were playing in the breezewa y of an apartment building when they were approached by a white male who told them that there were clowns, candy, toy

s, and balloons in the laundry room. The five-year-old victim and her three-yearold sister ran to one o

f the two laundry

rooms at the apar

tment complex. The a

ppellant foll

owe d them into the laundry

room and lifted the

victim onto a counte

r. The appellant

pulled her clo

the s over her head, removed her panties, fondled her vaginal area, and “licked her.” The appellant then told the victim to put her panties back on and left the room. The victi

m described her assailant as being older than her mother, approximately six feet tall, with dark hair in a ponytail. The vic tim-7-

described the perpetrator’s car as blue and stated some children were inside the vehicle. Both the victim and her sister identified the appellant as the rapist in a photo lineup. Upon comparing and e

xamining the three

crimes and the me

thods used to commit th

ose crimes, we are convinced that the evidence is so unique as to bear the stamp of the appellant. All three instances took place on the premises of an apartment complex, in either the apa

rtment stairwell
or the apartment

laundry room. All three attacks occurred during af ternoon hours. All of the three victims were females between the ages of three and six. In each ca se, the rapist left in a blue car. All victims were either

offered or promised something immediately before the attack. A ll three cases involved either

digital penetration or oral sex and the ra pist never attem pted s exual inter cours e. In two of the cases, witnesses stated that a child or young c

hildren were pr

esent in the rapis

t’s car while the attack was taking place. Moreover, all three attacks took place in less than a three week period during May of 1995.

In Warren v. State

, 156 S.W.2d 416, 419 (Tenn. 1941), ou r supreme co urt set forth two conditions which must be me t before proof of prior bad acts ca

n be admitted: (1) T

he proof must show “such similarit

y in the ci rcumstances of the commission of the two offenses as to afford evidence of the identity of the offender,” and (2) there must be a genuine issue before the

jury as to the identification of

the accused, such as by denial or the presentment of an alibi witness. “To be relevant and, therefore, admissible, it is not necessary that the other crime be identica

l in every de

tail to the offense on tr

ial; it is sufficien

t if evidence of t

he other crime

supports the inference that the perpetrator

of it, shown to be the

defendant, is the

same person who c

ommitted the offen

se on trial.” Bunch v. State, 605 S.W.2d 227, 231 (Tenn. 1980).

It is clear from the record before us that had the appellant introduced an alibi defense, he would have dir ectly pla ced his identity in question. It is also obvious that the three crimes committed were so similar in m ethod and nature

as to constitute

a “signature.” “The defense of alibi presents an issue of fact

terminable b y the jury, as the exclusive judges of the c redibility of the witnesses testifying in support of that defense and of

the weight to be given their testimony.” White
v. State , 533 S.W.2d 735 , 737 (Tenn . Crim. App. 1975). The trial court did not prevent the appellant from going forward with his alibi defense, but merely rule d that if he did so his prior bad acts would be admissible for purposes of

identity. We c

onclude the trial

court’s ruling w

as correct. Acco rdi ngly, we find that the trial court did not err in ruling that the si gnature crimes could be admitted into evidence if the appellant had placed his identity in question by pr esenting an alibi defense. III. Introduction of Undergarments Into Evidence

The appellant asserts that

the trial court erred by allowing the State to introduce evidence that the defendant had over four hun dred pairs of women’s undergarments in his possession. Spe cif ica lly, he contends that “the undergarments were neither relevant nor probative to the finding of guilt or innocence [and] the introduction of the undergarments had a chilling effect upon the jury.”-8-

In response, the State argues that the collection of women’s undergarment s was relevant to t

he case because the rapist offered B.B. panties before attacking he r.
Relevant e vidence m eans evidence having any tendency to make the existence of any fact that is of consequence

to the de termination of the action more proba

ble or less probab

le than it would be without the evidence. Tenn. R. Evid. 401. Although relevant eviden ce is generall

y admissible pursuant to Rule 402, the evid

ence may st

ill be excluded if its

probative value i

s sub stantially outweighed

by the danger of unfair prejudice to the def endant. Tenn. R. Evid. 402 & 403. The decision of whether theevidence introdu ced is relevant o

r the decision of w

hether the evide

nce is
more prejudicial than probative is left to the discretion of the trial court. State v. Kennedy , 7 S.W.3d 58, 68 (Tenn. Crim. App . 1999); State v. Forbes , 918 S.W .2d 431, 449 (Tenn. Crim. App. 1995); Statev. Burlison , 868 S.W.2d 713, 720-7 21 (Tenn. Crim.App. 1993). In making the se decisions, the trial court must

consider the questions of fact that the jury will have to consider in determining the accused’s gui

lt as well as other evidence that has been introduced during

the course of the

trial. Statev. Kennedy , 7 S.W.3d at 68; State v. Williamson , 919 S.W.2d 69, 78 (Tenn. Crim. App. 1995).

I n the present case, we agree that the introduction of women’s undergar ments was no t relevant to the existence of any issue that the jury had to decide and, thus, was improperly admitted. We c onclude , however, that the appellant was not unfairly prejudiced by their admission. Based upon the strength of the remaining proof establishing the appellant’s guilt, we find the introduction of these undergarments harmless. Tenn. R. App. P. 36(b); Tenn. R. Crim. P. 52(a). IV. Photographic Array

The appellant argues that the ph otograp hic array shown to the witness

es was unduly suggestive

andasserts the trial court

erred by not suppressing it. Specifically , the appellant contends that he was the only

person pictured w

ith a pony-ta

il and that his p

ictur e was lighter in color than the other four

pictures. Additionally, the appellant as serts that the photographic array was tainted by the mere

seconds the witne

sses had to witness t

he alleged ass

ailant. Despite the hazards of initial ident ification b y photograph, this procedure has been used widely and effectively in criminal law enforcement, from the standpoint both of appr ehendi ng of fend ers and of sparing i

nnocent suspects

the ignominy

of arrest by

allowing ey

e-witnesses to exonerate them through the s

crutiny of p

hotographs. Simmons v. United States , 390 U.S. 377, 384, 88 S.Ct. 967, 971 (1968). In Simmons , the United States S upreme Court refused to prohibit the employment

of photographic identification and held that “each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedurewas so imp ermis sibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Simmons v. United States , 390 U.S. at 384, 88 S.Ct. at 971. “ A trial court’s finding

that the identific

atio n procedure was not suggestive is conclusive on appeal
un less the evidence preponderates against the judgment.” State v. Davis , 872 S.W.2d 950, 955 (Tenn. Crim. App. 1 993); Chapple v. State, 528 S.W.2d 62, 63 (Tenn. Crim. App. 1975).-9-

In Bolton v. State , 617 S.W.2d 909, 913 (Tenn. Crim. App. 1981), this Court reiterated the five factors to be considered when evaluating the suggestiveness of photog raphic identification:

The test of whether us

e of impermissibly

suggestive ide

ntification proce

dures will require exclusion of a witness’s in-court identification is whether the in-court ident ification is reliabl e under the t otality of the circumstan ces, includ ing th e opportunity

of the witness to view the offender at the time of the crime, the witness’s degree of attention, the accuracy of the prior description of the offender, the

level of certainty of the witness at

the confrontation, and

the length of time

between the cri

me andthe confrontation. Neil v. Biggers , 409 U.S. 188, 199, 93 S.Ct. 375, 382 (1972); Ma nson v. Bra thwaite , 432 U.S. 98, 97 S. Ct. 2 243 (1977); Rippy v. State , 550 S.W.2d 636, 639-640 (Tenn. 1977); State v. Davis , 872 S.W.2d 950, 955-956 (Tenn. Crim. App. 1993).

In the present case, the photographic array consisted of

five photographs of men

of like age. All five
men had characteristics similar to what the witnesses had previously described. All men had short hair on top and long ha

ir in the back whic

h was shoulder len

gth or longer. Although the appellant argues he was the only

person with

a ponytail in

the photograph,

it is not clear from the photograph that the appellant’s hair was in a ponytail. Additionally, the appellant correctly points out that his photograph

is the lightest of the photographs on display, however, the color of all the photographs varied. The appellant als o argues that his

was the only

mugshot. All identi

fying mate

ria l, ex cept the act ual pho tos the mse lve s, w as b loc ked by a flap covering the photographic a

rray. More

over, all pictures did, in fact, appe ar to be mugshot- style pictures. The detec tive never suggested who the appellant might be to the witnesses

when they vi

ewed the photog

raphs. Therefore, we find that the photographic display was not unconstitutionally sugg estive.

The appellant further

asserts that the photographic array was “tainted” because the ident

ifyin g witnesses only saw him for seconds. We disagree. The gene ral rule is that an in-court identification is inadmis sible if it w as tainted by an unconstitutional pretrial identification. State v. Davis , 872 S.W.2d at 956; Holt v. State , 591 S.W.2d 785, 789-790 (Tenn. Crim. App. 1979). Three witnesses identified the appellant from the line-up. One witne ss was the victim. One witness testified that she made eye contact with the appell ant, saw him for approximately fifteen seconds, and exchanged greetings with him. All three witnesses identified the appellant from the line-up within seconds of being given the photographic array. Two of the witnesses testified at trial that the appellant was the person leaving the laundry room on the day in question. “A trial court’s findings upon question of fact on a motion to suppress a

re conclusive on

appeal unless the

evidence is foun

d to preponderat

e against the lower court’s judgment.” State v. Davis , 872 S.W.2d at 956. Consequently, we do not find that the photographic array was tainted or unconstitutionally suggestive.-10- V. Sentencing

The appellant

asserts that the Sta

te failed to comply

with the provisions o

f the “three stri

kes” statute outlined in Tenn. Code Ann. § 40-35-120 et seq. Specifically, he alleges that the State: (1) failedto file timely

notice of his status

as a repeat viole

nt offender; and

(2) failed to

try him within 180 days of arraignment. The appellant also sum

marily asse

rts that he did

not have the prer

equisite convictions required for classification as a repeat violent offender as required by Tenn. Code Ann. § 440-35-120. Moreover, he argues that the two consecutive life without parole sentences are “redundant and excessive.”

A. Classification as a Repeat Violent Offender First, we address the appellant’s issue that he “did not have the prereq ui site convictions classifiedin Te nn. Code Ann. § 40-35-120" and therefore was erroneously found to be a repeat violentoffender. As relevant to this case, the “three-strikes” provision, Tenn. Code Ann. § 40-35- 120(a), defines a repeat violent offender as one who:
(1) Is convicted in th is state on or after July 1, 1994, of any of fens e classified in subdivision (b)(1) as a violent offense; and (2) Has at least two (2) prior convictions for offenses classified in sub d ivision (b)(1) or (b)(2) as a violent offense.

The appellant was convicted of rape of a child and attempted rape of a child, which constitute violent offenses under Section 1 above. See Te nn. C ode Ann. § 40-35-120(b)(1)(F). The appellant was previously

con victed in November 1975, in the Shelby County Criminal Court, of two counts of robbery with a deadly we apon and was again convicted in January 198 1, in the Humphrey s County Circuit Court, for

armed robbery. His convictions for armed robbery in 1975 and robbery by use of
a deadly weapon in 1981 resulted in two separate per iods of incarcer ation and are en

umerated in Tenn. Code Ann. § 40-35-118 as Class B felonies against a person. Accordi ngly, we find the appellant was properly classified as a repeat violent offender under the provisions of Tenn. Code Ann. § 40-35-120(a)(1) & (2). B. 45-Day Rule The appellant next contends that he should n o t have been sentenced as a repeat violent offender because the State failed to give notice of the appellant’s status as a repeat offender within forty-five days of his a

rraignment. I

n response, the Sta

te argues that t

h e appellant wa s properly sentenced and cites to State v. Dee W. Thompson , No. 01C01-9812-00490 (Tenn. Crim . App. at Nashville, Mar.17, 2000), in support of its argument

. Tenn. Code Ann. § 40-35-120(i)(2)(1997) provides:

The district attorney

general shall f

ile a state ment with the court and the d efense counsel wit hin for ty-f ive (45 ) days of the arraignment pursuant to Rule 10 of the Rules of Criminal Procedure that

the de fenda nt is a repe at vio lent o ffend er... If such notice is not filed within forty-five (45) days of such a rraignment, the defendant shall be-11-

granted a continuance so that such defendant will have forty-five (45)days between receipt of notic

e and trial.

Under the Repeat Violent Offender Statute, or “three-strikes” statute, offenders convicted of specified violent offenses who have a record of certain proven predicate convictions qualify for an automatic sentence of life without parole, rather than the variable sentencing under the usual statutory scheme of o ffend er ranges and offense classes. See State v. Dee W. Thompson , No. 01C01-9812- 00490; Tenn. Code Ann. § 40-35-120 (1997). The State is required to filewith the court and the defense counsel a statement that

indicates the defendant is a repeat violent offender within forty-f ive days of the arraignment. Tenn. Code Ann. § 40-35-120(i)(2)(1997). If the notice is not timely filed, the defendant

shall be granted a

continuance so that he has forty-five day s between the date of notice andthe date of trial. Id. If the State f ails to comply

withthe notice requirements, the defendant is not entitled to release from custody or dismissal of the charges. Tenn. Code Ann. 40- 35-120(i)(3).

In the present case, the appellant was originally arraigned on November 29, 1995. The State gavenotice of

the app ell ant ’s s tat us a s a r epea t vi ole nt o ffen der o n Feb ruar y 14, 199 6. C ons equ ent ly, the Statefail ed to file notice w ithin forty-

five days f

rom the date of ar

raignment. The

State acknowledges this untimeliness in its brief. The remedy, however, is not dismissal of the charges or the release of the appellant from custody, but rather

the ass uran ce t hat the app ell ant wil l re cei ve fo rtyfive days between notice and trial. Tenn. Code Ann. § 40-35- 120 (i)(2) & (i)(3) (1997). The appellant received notice on February 14, 1996, and his trial was held on December 7, 199

7. Thus, the defendant

received ample time to prepare after notice was given.Furthermore, the appellant has alleged no prejudice from the untimely delay. “A common thread in each of these cases is the focus
on whether the defendant has been prejudiced by the state’ s defective or delayed notice.” Statev. Dee W. Thompson , No. 01C01-9812-0 0490. The defens

e itself admitted th

at they wer

e “not claim

ing , under these fac

ts, any ultima

te prejudice.” C

onsequently

, this issue is without m

erit. C. 180-Day Rule The appell ant next alleges that the State did not com

ply with the r

equirements set f

orth in Tenn. Code Ann. § 40

-35-120 (I) (1) because

he was not broug

ht to trial within

one hundred eig

hty days of arr

aignment. Tenn.

Code Ann. § 40-35- 120(i)(1)(1997) provides:

A charge as a repeat

violent offender

shall be tried within one hundred eighty (180) days of the arraignment on the indictment pursuant to Rule 1 0 of th e Rules of Criminal Procedure unless delay is caused by: (A) The defendant; (B) An examination for competency ; (C) A competency hearing; (D) An adjudication of incompete ncy for trial; (E) A continuanc

e allowed after

a court’s dete

rminat ion of the defendant’s physical incapacity for a trial; or (F) an interlocutory appeal. Acontinuance may be granted to any party

, including the court, for good cause shown.

The appellant was arraigned on November 29, 1995, and tried on December 7, 1997. Thus, more than
one hundred eighty days e lapsedbetweenarraignment and trial. Once again, however, the appellant alleges no p rej udi ce fr om t his del ay. In Stat e v. Dee W. Thompson , No. 01C01-9812-0 0490, this-12-

Courtconcluded that the one hundred eighty da y rule was not intended to “benefit a defendant,” but merely was

a mechanism where

by society

could be assured of “swift and certain punishment.” See Statev. Wilcoxson , 772 S.W.2d 33 (Tenn. 1989). Wit hout a showing of

prejudice, the a

ppellant is entitled to no relie

f. Therefore,

this issue is also with

out merit.
D. Consecutive Sentences Fin all y, the appellant asserts that the two consecutive sentenceshe received were “redundant andexcessive.” The a

ppellant, howeve

r, failed to cite a

ny authority

to support this position

. Con seq uen tly, this issue is waived. Te nn. R. App. P. 27(a)(4) - (a)(7). The sentencing decision of the trial court is affirmed.

CONCLUSION

The trial court

erred by introducing evidence that the appellant had over four hundred pairs of women’s undergarments in his possession. However, we find this error to be harmless. All other issues are without merit

or are waived. The judgments of conviction and sentences imposed by the Davidson County Criminal Court are affirmed.

___________________________________ DAVID G. HAYES, JUDGE