### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs N ovembe

r 26, 2002

STATE OF TENN ESSEE v. RAND ALL SCOTT

Direct Appeal from the Criminal Court for Davidson County No. 96-C-1362 Cheryl Blackburn, Judge

No. M2001-02911-CCA-R3-CD - F iled October 28, 2003

A Davidson

County jury convicte d the def

endant, R andall Sc ott, of rape of a chil d and aggravated sexual battery. This Court aff irmed the defendant’s convictions upon his direct appeal, see State v. Randall Scott , No. 01C01-9708-CR-00334, 1999 WL 547460, a t *14 (T enn. Crim. App. at Nashville , July

28, 1999) , but the Te

nnessee Supreme Court rev ersed a

nd reman ded the c ase for a

new trial, see State v. Sc ott , 33 S.W.3d 746 (Tenn. 2000). At the conclus ion of t he defendant’s second trial, a second Davidson County jury conv icted the defendant of rape of a child and aggravated

sexual battery, and the trial c ourt subseque ntl y ordere d the defendant to serve an aggr egate thirty -five-y

ear sen tence f or his convi ction s. The defend ant no w brin gs the instant direct appeal of his convictions and sentence alleging five grounds of error. The de fendant argues that the trial court (1) erroneously admitted the evide nce that the victim identified the defendant as her perpetrator

in the first trial, (2) erroneously admitted certain he ars ay testimony as an adoptive admission by a

party opponent , (3) er

roneousl y instructed the jury that they could draw aninference of guilt if they conclude d that the defendant had concealed or destroyed or ha

d attempted to destroy

or conceal evidence

of his crime, (4) failed to separate the def endant’s charges for ra

pe of a child and aggravated

sexual battery , as w as required by law, and (5) ordered the defenda nt to serve an excessive sentence. After a thorough review of the defe ndant’s claims and the record, we find that several of the defendant’s allegations were pr eviously determined by

this Court pursuant t

o his first direct appeal and that none of his claims merit relief.

Tenn. R. App.P. 3 Appe al as of Right ; Judgme nt of the Tri al Court is

Affirme d.

J ERRY L. S MITH , J. , deli vered the opinion of the court, in which D AVID G. H AYES and N ORMA M C G EE O GLE , JJ., joined.

Jeffrey A. DeVa sher, As sistant Pub lic Defe nder, (o n appea

l), and J. Mic

hael Engle, Assist

ant Public Defend er, (at trial), f or the ap pellant, Randall Sc ott.

Paul G. Summers, Attorney Gene ral & Reporter; Elizabeth

B. Marney , Assistan

t Attorne y General ; Vict or S. Johnson, Di strict Att orney Genera l; Bill Reed and Rog er Moore , Assistan t Distric t Attorneys Gene

ral, for the appellee, State of Tennessee

.1 It i s the policy of th is Court to ref rain f rom refer

ring t o chil d abuse vic tims by name.

-2- OPINION

Factua l Background

At approximately dusk on April 7, 1995, the victim, L.M.F., 1 who was nine-y ears-old at the t ime of the incident and who was living at 1044 Chickamauga Avenue in Nashville, Tennessee, walkedfrom her residence to a nearby Revco Drug Store to purchase some ea rrings. D uring her walk to the Revco, she saw the defendant leave his re sidence at 1042 Chickamauga Avenue and walk towards the Revco, as well. The victim recognized the defendant

because she had seen him in her neighborhood several times. She testified that he was wea ring a red ta

nk top and

jean shor ts with carpen ter pock ets.

The victim entered the store and purchas ed some earrings and candy . The defendant purchased

a bottle of malt liquor and some cigarettes and exited the store befor e the victim. After the victim exited the store and was preparing to cross the street, the de fendant stopped the oncoming traffic, allowing her to cross. As the victim approached a n alley on Chickamaug a Avenue, the defendant grabbed the victim from behind, covered her mouth, and steered her into the alley. The victim attempted to flee from the defendant , but the defendant thwarted the victim’s escape by throwing a rock

at the vic tim, hitting

her in he r back. T he defe ndant the n ordere d the vict

im to lie do wn and removed his shorts and the victim’s shorts and underpants. The defenda nttouched t

h e victim on he

r stomach and her v agina a

nd then pe

netrate d her ana

lly with his pen

is.

After the attack, the victim reported the incide nt t o her father who in turn contacted the police. The victim related the details of her atta ck to a fe malepolice of

ficer a nd was sub sequentl

y transported to General

Hospital for care. The victim was transferred via ambulance f rom General Hospital to Vanderbilt Hospital, where a phy sician put the victim under general anesthesia in order to examine he

r and cr eate a r ape kit. T

he phy sician who exami ned the victim reported that the victim had sustained two injuri es, a welt to her back which was consistent with an injury resulting from a thrown rock, and tears to her anus, which we re caused by penet

ration a nd consist

ent with damage caused by

penile penetration.

Another resident of 1042 Chickamauga Avenue, Te resa Gooch, testified at trial. Ms. Gooch reported that on the day of the inc ident, the defendant left their residence to purc hase some cigarettes for h er grandm other, another resident. However, the def endant was gone for an unusually long amount of time, and when he did return, his shorts were muddied. Ms. G ooch testified that the defendant attempte d to enter the bathro om to chang e his cloth ing, but w as unable

to do so bec ause Ms. Gooch’s mother, a

lso a res ident, wa s in the bathroom. The defendant then changed his clothes in th e h al lw ay, Ms. Gooch assumed, and entered his bedroom, where Ms. Gooc h was seated. Once in the bed room, he p laced hi s soiled sh orts and s hirt part ially under his bed. The police arrived at 1042 Chicka ma uga Avenue shortly thereafter looking for someone matc hing the defendant’s-3-

description. During

their sea rch of the house , Ms. Gooch d irected the police to the defendant’s clothing next

to his bed, which the police seized along with the defendant’s shoes and a pa rtially full malt liquor bottle.

The police sent both the defendant’s and the v ictim ’s clothing to laboratories for DNA testi ng. Lab technicians conc luded that only the victim’s DNA was fo und on the vi ctim ’s clo thin g, buttha t the vict im could not be excluded as the source of DNA on the defendant’ s clothing. No

semen or sperm we

re found on the vic tim’s or de

fendant ’s clothin g nor in t he victim’ s rape kit.
Ricky Knight, Ms. Gooch’s father, also resided at 1042 Chickama uga Avenue. Mr. Knight testified that after the defendant had left to pur chas e cigarettes on the day of the incident and had been gone for an unusually long amount of time, he looked for the defendant on Gallatin Road but failed to find him. When Mr. K night le ft the hou se again

to walk to the nearby

Burger King, he sa

w
a young g irl emerging from an alley an d a man whom he w as unable to identif y be hind her. Ms. Gooch testified that after the defendant returned to their residence, he had a conversation with Mr. Knight th at Ms. Goo ch overh eard. Mr . Knight

told the defendant that he was “pitiful for messing with the little white girl,” to which the defendant responded that “e verybody fool with her.”

Shortly after th e incide nt, the vic tim

failed to identify the de

fendant as her perpetrator in a line-up. However, his appearance on the da y of the lineup was diff

erent from his appearance on the day of the incident. On the day of the incident, the defendant was freshly shaven and worehis hair down in a “Jerry cur

l” style. On the day

of the lineup, the defendant had stubble and was wearing his hair back in a pony

tail. The victim was able to identify the de fendant as her perpetrator at the first trial. Ho wever, the victim was unable to identify the defendant at the second trial and testified that her memory

of her experience as a nine-y ear-old was less clear now with the passage of seven ye ars. Additionally, she assumed that her pe rpetrator’s appearance

had also changed with the passa ge of those seven ye ars. She further affirmed that she had testified truthfully at her firs t trial.

At the conclusion of proof, the jury found the d e fendant guilty of both rape of a child and aggravated

sexual battery. As noted above
, pursuant to a sentencing hearing , the trial court ordered the defendant to serve a thirty -five year a ggregate sentence consisting of consecutive sentences of twenty-five years f

or his rape

of a chil d convict

ion to be se

rved at 1 00% and te

n ye ars for

his aggravated

sexual battery conviction to be ser ved at 30%. As noted earlier, the defendant raises five issues in this appeal; he challenges the propriety of (1) the introduction of the victim’s identification of the defendant

in his first trial, (2) the admission of certain hearsay as an adoptive admission, (3) the jury instruction reg arding concealed evidence, (4) the allowance of two separate convictions for rape of a child and agg

ravated sexual battery , and (5) his sentence.

Admission of Victim’s Prior Identification of Defendant from First Trial

The defendan t argue s t hat the trial court erred by allowing the state to introduce hearsay evidence of the victim’s identification of the defendant as her perpe trator during the fi rst trial o n-4-

these charges. “‘Hea

rsay ’ is a statement, other than one made by the declarant while testify ing at the trial or hearing, offered in evide nce to prove the truth of the matter asserted.” Tenn. R. Evid. 801(c). As a gene ral rule , hearsa

y is not admissible a t trial except as provided by the r ules of evidence or otherwis e by law. See Tenn. R. Evid. 802. However, “[t]he determination of whether a statement is hearsay and whether

it is admissi

ble through an exception to the hearsay rule is left to the sound discretion of the trial court.” State v. Stout , 46 S .W.3d 689, 697 (Tenn. 2001). As such, this Court will not reverse a trial court’s ruling regarding the admission or exclusion of hearsay e vidence absent a clear showing that the court abused its discre tion. See id.

In the instant case, the trial court found that the victim’s statement of previous identification

was admissible under Tennessee Rule of Evidence 803(1.1), whic h allows admission of “[a] statement of identification of a person made after perc eiving the person if the declarant testifies at the trial or hearing and is subject to cross-examination concer ning the statemen

t.” Tenn . R. Evid. 803(1.1). When ruling on the admiss ibility of this statement of prior identification, the trial court also relied on State v. Stout , 46 S.W.3d 697 (Tenn. 2001). When d iscus sing the admissibility of certain hearsay statem ents unde r Rule 803 (1.1), th

e suprem e court e numerat ed four r equirem ents tha t must be met before the statement could be introduced. See id. at 698. That party see king admission of the statement must establish

(1) that t he decla rant mad e an iden tificatio n of a per son; (2) that t he identi fication

was made

after p erceiving the p erson; (3) that the declarant testified at the hearing or trial in which the prior identification was introduced; and (4) that the declarant was subject to cross-examination about the statement.

Id. The court

als o relied on the discussion of Rule 803(1.1) in the treatise Tennessee Law of Evidence

. This treatise explains the p olicy be hind Rule 803(1.1), stating that the rule allows admission o f a declarant-witness’s prior identification as substantive evide nce because the de clarant

witness is testifying a

nd available for cross-examination at the time of the admission of this pri o r identification. See Neil P. Cohen et al., Tennessee Law of Evidence § 8.05[2] (4 th ed. 2000). According to Tennessee Law on Evidence , this exception is typically used in criminal cases where

a witness makes an out of court identification of the defendant and then later identifies the defe ndant again in court. See id. The witness’s earlier statement of identification may then be admitted under Rule 803(1.1). See id. The earlier identification was made closer in time to the incident for which the defendant is being tried, and the admission of this earlier ide ntification essentially bolsters the credibi lity

of the witness who mad e bot h identifications. See id. However, in this scenario, the authors of Tennessee Law of Evidence opine that there is normally no g reat need for the admission of the e arlier statement of identification since the witness who made the ea rlier identifica tio n identifies the defendant

at trial, as well. See id. Rather, the need for the admission of a statement of earlier identific ation ar

ises when the decl arant- witness e

ither “c annot (or

pretend s to be una

ble to) identify the acc

used in the courtroom.” Id. In such a rare instance, an extreme need for the admission of the out-of-court statement is created. See id.-5-

The facts of the present

case constitute such a rare case necessitating the need for admission of the victim’s earlier statement of identification. The state sought to introduce the victim’s prior statement of identification from the defendant’s first trial after the victim testified during the second trial that she was not able to positively identify the defendant since the

defendant’s appearance had undoubte dly

changed in the seven y

ears between the incident and the curr en t trial . The vic tim testified that when she identified the victim during the last trial, she had been truthful. Thus, since the victim was nine-ye ars-old at the time of the incident and eleven-y ears-old at the time of the

first trial, the trial court reasonably allowed introduction of the victim’s prior identification in light of the fact that at the trial at issue here the now sixteen- year- o ld victim was unable to identify the defenda nt. Moreover, while the statement at issue was introduced at the conclusion of the victim’s te st im on y, the victim

was available for cross-examination by defense counsel about the truthfulness of this prior identification.

The defendant argues, as he did a t trial, thatthe victim’s statement was not admissible under 803(1.1) because

the rule does not c ontempla

te the admission of a prior inconsistent statement. The defendant characterizes the victim’ s stateme nt o f prior identific ati on as a prior inconsistent statement based on the victim’s inability to identify the defendant

at his second trial. See Tenn. R. Evid. 613. We disagree. We do not find that the victim’s testimony at the second

trial in which she stated that she was unabl e to id entify the defen dant d ue to a change in his appearance over a signific ant amount of time is inconsistent with her identification of the defendant at his first trial, only two years a

fter the r ape and sexual

battery . Accor

dingly , we find

that Rule 8 03(1.1), which spe cifically contemplates the factual scenario in the instant cas e, see Neil P. Cohen, et al., Tennessee Law of Evidence § 8.05[2] (4 th ed. 2 0 00), is the proper rule governing the admission of the victim’s prior identification of the defendant when she was unab le to identify him at a later c ourt proceeding due to the lap se of fiv e y ears.

Defendant’s Adoptive Admission

The defendant alleges that the trial court e rred by a dmitting Ms. Go och’s t estimony recounting Ricky Knight’s a ccusation of the defendant and the de fendant ’s response to that accusation. The defendant contends that Mr. Kn ig ht ’s ac cu sa ti on is “r an k h ea rs ay” that does not fall within the purvi ew of an

y evidentia

ry rule allo wing its a

dmission. T

he trial court ad

mitt ed Mr. Knight’s statement

and the defendant’s response to the statement under Tenne ssee Rule of Evidence 803(1.2)(B).

Rule 803(1.2)(B) provides a hearsay exception for “a statement in which the party has manifestedan adoption or belief in its truth.” Tenn. R. Evid. 803(1.2)(B). Ms. Gooch testified that she overheard a conversation between Mr. Knight and the defendant that took place shortly after the defendant returned from his errand to Revco. She testified that Mr. Knight told the defendant that he was “pitiful for messing with a little white girl,” to which the defenda nt responded, “whatever,
man, everybody

fool [sic] with her.” We find that the trial court properl y f ound that t

hese sta tements

are admissibl e under the hearsay exceptio n for ado ptive adm issions be cause th

e defen dant’s r

esponse-6-

to Mr. Kn ight’s accusa tion indi cated t hat he was adm itti ng t hat he had indeed “messed with” the victim. See id.

The defenda

nt argu es that the se statem ents are inadmissib le under

Rule 803(1.2) (B) be cause this rule requires that a prerequisite to the admission of the defenda nt’s adoptive admission is that the statement to which the defendant is responding be either non-hearsay

or fall within a recognized exception to the hearsay

rule. He arg

ues that M

r. Knight’s state

ment is ra nk hears ay

and acc ordingl

y bars the admission of the defe ndant’s respons e to that statement. However, we can find no such require ment in either

the text of R

ule 803(1 .2)(B) or in any casela w discussing the a

dmissibility require ments for statements admitted under this rule. See Tenn. R. E vid. 803(1 .2)(B) ; see, e.g., State

v. H e flin , 15 S.W.3d 519 (Tenn. Crim. App. 2000) (finding that a witness’s testimony recounting the defendant’s agreeme

nt to statements made by his co-de fendant was adm issibl e under R ule 803(1.2)(B)); State v. Roland John Welch
, No. 01-C-01-9601-CC-00005 , 1997 WL 414418, at *4 (Tenn. Crim. Ap p . at Nashville, July 23, 1997) (finding that a witness’s testimony recounting the defendant’s co-cons pirator’ s stateme nts expres sing his c

riminal in

tent an d the defendant’s subsequent

silence and transportation of his co-c onspirat

or to the c rimescene was admissible, inter alia , under Rule 803(1. 2)(B)) . Thus, the defenda nt’s arg ument lac ks merit.

Propriety of Jury Instruction Regarding Concealed Evidence

The defendant argues that the trial cou rt erron eously instructed the jury that if it found that the defendant had indeed conceale d or attempted to conceal evidence of his cr imes, the j ury

could decide wh at wei gh t to give that finding and it could infer guilt from the attempted or actual concealment

of evidence. The defendant objects to this instruction now, as he did at trial, on the basis tha t the instr uction is not supported by the evidenc e introduced at trial. The defendant made this same alle gation o f error in his direct appe al of his first trial. See State v. Ra ndall Scot

t , No. 01C01-9708-CR-00334, 1999 W L 547460, at *14 (Tenn. Crim. App. at Nashville, July 28, 1999). However, in his instant appeal, the defendant seems to assert that Ms. Gooch’s testimony reporting that the defe ndant cha nged f rom his soil ed clothi ng when retu rning f

rom his errand

and put thi s clothing under his bed is substantially differ ent from her testimony a

t his first trial, thus re q uiring

our reconsideration of

the issue. Specifically, the de fendant asserts that

Ms. Gooch testified during cross-examination tha t the de fendant’s clothing was visible to anyone who entered his bedroom, thus makin g a finding that the defendant conceale d or attempted to concealhis clothing insupportable.

The law-of- the-ca se doctrine bars appellate consideration of issues that have been pre viously determinedin an earlier appeal of the same case. See State v. Preston Carter , No. W2000- 02204-SCDDT-D D, 2003 WL 22 146113, at *5 (Tenn., Sep. 18, 2003) (Southwest Reporter cite not y et available) (citi ng State v. Jefferson , 31 S.W.3d 558, 561 (Tenn. 2000)). As in the instantcase, when

an initial appeal results in a remand for a new tri al, in the

new tria l and any subseque nt appea ls, both the trial and

appella te court s are bou

nd by the ear lier app ellate

decisions. See id. Reconsideration of the previously adjudica

ted issue is only warra

nted if, inter ali a , the evidence offered at the sec ond hearing is substantially

different from the evidence offe red at the initial proceeding. See id.-7-

We do not find thatMs. Gooch’s testimony at the second trial substantially differed from her testimonyat

the second trial. During the first trial, Ms. Gooch testified that after the defendant had changed his clothing, he “hid the soiled clothes under the bed.” Randall Sc ott , 1999 WL 547460, at *14. Duri ng the second tria l, Ms. Gooch testified during direct examination that after changing his clothing, the defendant “put [his soiled clothes] up under the bed.” During cross-examination, the following colloquy took plac e between the defense attorney and Ms. Gooch:

Q:

. . . . Now if

I understand y

ou correctly , you are sa

ying that upon c oming back into the room, he hid these clothes that y ou’ve jus t identifi ed under neath the bed? A: Yes, sir. Q: That i s what you are saying? A: Uh-huh (meaning y es). Q: All right, a

nd it was necessar

y f or y ou to pull them out and show them t o the police who couldn’ t see the m otherwi se; is that

right? A: They didn’t let me pull them out. I pointed them out. Q: All right, bu t the police could not see these clothes beca use they wer e hidden? A: I guess not. They asked me where they was at [sic] and I told them up under the bed. Q: Well, th at is wh at I am tr yi ng to un derstan d, ma’am . I wa nt to understand that these thin gs had been hidden underneath the bed or if they were lay ing [sic] out there where the police officers could just look them straight up and

se e t he m; wh ic h w ay? A: Ac tu al ly, it was like underneath, y ou know, half w ay like. You

could see them if you go [sic] in the room and just peep up under

the bed. They w asn’t [sic] all the way

up und er. T hey was [s ic], you now, close by , like up, when you coming t owards. Q: If I

had walk ed into tha

t room, without you helping, and I had looked around that room, would I ha

ve been able to se e those

garme nts that you are te

lling us about? A: Yes, sir, you

would hav e been a

ble to see them.

Ms. Gooch’s testimony

seems to indicate that

the defendant’s clothes were at least pa rtially hidden, b utperhaps visible if one was to “peep up under the bed.” Ms. Gooch did not testify that th e defendant had not hi dden his clothes, and thus w e canno t say that her testimony

“substan tially differed” from her testimony at the de fendant’s first trial. Even assuming, a rguendo , that Ms. Gooch’s te st im on y is su bs ta nt ia ll y di ff er en t f ro m h er ea rl ie r t es ti mo ny thus warr anting our reconsidera tion of this issue, we find that Ms. Gooch’s testimony pre sented enough evidence t o allow the jury to make a f

act-finding as to whether the defe ndant had indeed concealed the clothing that he had worn earlier that day . Accordingly , because the proof was sufficient to support a finding-8-

of concealment, the trial court did not err by instructing the jury on the issue of c oncealment of evidence. See State v. Phipps , 883 S.W.2d 138, 149 (Tenn. Crim. App. 1994). Thus, this issue lacks merit.

Propriety of Separate Convictions for Rape of a Child and Aggravated Sexual Battery

The defendant argues that the trial co urt i mpermissibly allowed the defe ndant to receive separa te convictions for rape of

a child and aggr avated s exual batte

ry , arguing that

allowing separa te

conv ictions for each count violates his due process rights per State v. Anthony , 817 S.W.2d 299 (Tenn. 1991), and his right against double jeopardy . However, the defendant raised this precise issue in his first direct appeal, and this Court found his argument meritless. See State v. Ra ndall Scot

t , No. 01C01-9708-CR-00334, 1999 WL 547460, at *15 (Tenn. Crim. App. at Nashville, July 28, 1999). As discussed supra , this Courtmay theref ore only re

visit this issue if, inter ali a , the evidence in the second trial differs substantially from the evidence presented at the first trial

. See State v. Jefferson , 31 S.W.3d 55 8, 561 (Te nn. 2000) . The vic tim testifi ed at the defenda nt’s firs ttrial that the defenda

nt digita lly p enetra

ted her “ front pr

ivate pa rt” and then “placed his penis inside her anus.” Randall Scott
, 199 9 W L 547 460 , at *16 . In the second trial, the victim testified that the defendant touched her vagina

and stoma

ch and the

n anally penetra ted her. We find the se two tes timonies to be substantially similar, thus barring our re-consideration of this previously determined issue. See Jefferson , 31 S.W.3d at 561.

Sentencing Challenge

The d efenda nt cha llenge s his effect ive th irty-fiv e-year sent ence as exces sive, arguin g that th e trial court erroneously

applied three enhanc ement fa ctors, f ailed to a pply two applic able

mitigating fac tors, and incor

rectly ordere d his sente

nces to be

served c onsecuti vely . In th e defen dant’s f

ir s t direct appeal, he challenge d his sentence as excessive allegi ng the sa

me ground s of err

or, and th is Court found that cha

llenge meritles s. We can findnothing in the record of the defendant’s second trial that warrants a different conclusion.

The defenda

nt challe nges the applica bility of enhan cement factor s (2), (6 ), and (7 ) to his sentenc es. See Tenn. Cod e Ann. § 40 -35-114( 2), (6), (7) (Supp . 2002). I n the def endant’ s first appeal, we found

that the record supported the trial court’s application of enhancement factor (2), that “[t]he defendant has a previous history of criminal convictions or criminal behavior in addition to th os e n ec es sa ry t o estab lish the appropriate range.” Id. § 40-35-114(2). We found that the defendant’s admitted weekly use of illegal drugs for the past twenty years c on stituted cri minal behavi or triggering the applica tion of this factor. See Randall Sc ott , 1999 WL 457460, at *19. During the defendant’s second sentencing hearing, the trial court relied on the def endant’s two previous convictions in addition to those necessary to establish his range. As additional support for the application of this factor, the state introduced evidence that the defendant had continued his drug-9-

use whi le in carce

rated. We

find that t

hese fa cts are sufficie nt to warr

ant the a pplicatio n of this factor.

The defendant also challenges the trial court’s application of enhancement factor (6), that the defendant treated the victim with

exception al cruelty d

uring th e commissi on of his c

rimes. See Tenn. Code Ann. § 40-35-114 (6) (Supp. 2002). In the c ontext of the defenda nt’s firs t appeal
, we found that the application of this factor was supported by the defendant’s use of vulgar languag e when raping the vict im, the vic tim’s testimony that he drag ged her behind the shed in order to rape her, and experts’ testimony indicating that the defendant

used an e xcessive a

mount of f

orce in o rder to a nally penetra te the victim. In the second trial, the victim testified that the defe n dant used u npleasant langua ge when ra

ping he r. An expe

rt recounted tha

t the victi m stated that

the defendant had thrown

a rock at her in order to i mpede her e scape. T here wa s also med

ical test imony that the v ictim sustai ned a deep tear to her anus due to force ful penile penetration. We find that this ev idenc e similarly supports the application of this factor.

The defenda

nt also ch all enges t he trial court’s application of a third factor, factor (7), that the victim suffered

particu larly

great persona l injuries

. See id. § 40-35-114 (7). In the def endant’s first appeal, we uphel d the appl i ca tion of this factor based on the evidence of the victim’s sever e emotional trau ma. We

found that the victim’s inability to articulate the de fendant’s actions and the testimonyof a psycholog ical examiner indicating that the victi m would require much additional therapy supported the application of this factor. I n the secondtrial, some four ye ars later, the victim

was still unable to articulate the nature of the sexual crimes that the defendant performed on her and thereforeresorted to writing down the details of her attack, a llowi ng t he prosecutor to share her writt en responses with the jury. While the state did not introduce e xpert testimony reg ardingth e amount of psycholog ical care that the victim still required, the trial court addressed this issue in its sentencing order. The trial court stated that “while the phy sical wounds to the victim have healed, their impact on the mental state of the victim is still as raw and vic ious as they were over six (6) yearsago.” Based

on the victim’s inability to articulate the details of he r rape and battery

and based

on the trial court’s factual findings reg arding this matter, we find that the trial court correctly applied this fact or to the d

efenda nt’s sente nces.

The defendant further argue s, as he did during his first direct appeal, that the tria l court erroneously f

ailed to apply two mitigating factors. As we stated in our opinion,

The defendant

al so complains that the trial court erred by failing to apply the mitigating circumstance that thedefenda nt did not ha

ve a susta ined inte nt to violat

e the law, but instead committed an impulsive act. See Tenn. Code Ann. § 40-35- 113(11). In our view, this factor is inapplicable . The facts support an inference that the defendant followed

the victim

to the Revc o and then

followed her whe n she lef t. When she tried

to escap e, he sub dued her . These facts suggest there wa s a sustained intentto commit the unlawf ul acts. T he defe ndant als o contend s that his f avorabl e record while incarcerated should be given some weight und er the “ca tch all” provision of T en n. Code Ann. § 40- 35-113(13). That the defendant has a g ood-10-

record of behavior while incarcerated c ould arguably be a mitigating circumstance. In our view, however , it would be entitled to only margina l consideration.

Randal l Scott , 1999 WL 547460, at *21. We find that this analy sis is applicable to the fact s introduced at the second trial, as well. The evidence introduced at the second tr ial similar ly s upports

an inference that the defendant followed the victim into and out of the Revco and used physic al force to thwart her escape. Thus, the trial court’s re fusal to mitigate the defendant’s sentence based on a finding that he committed an i mpuls ive act was proper. Moreover, the de fendant’s use of illegal drugs during h

is incarc eration

reflec ts that his “good” behavioral record was entit led to little

weight
, if any at all. Thus, the de

fendant’s assertion

that the trial court should have applied these two factors in order to lessen his sentence is unpersuasive.

Fi na ll y, the defendant asserts, as he did in his first appeal, that the t ri al court errone ously ordered him to serve his twenty-five- year se ntence for rape of child consecuti vely to his ten-yearsentence for aggravate d se xu al ba tt er y. In the defendant’s f irst appeal, we found that the victim’s

severe emotion al damage coupled with the fa ct that the defenda nt committe d the insta

nt crimeswhile serving a probationary

sentence warranted con secut ive sentencing. See Randall Sc ott , 1999WL 547460, at

*24. In its sentencing orde r after the second trial, the trial court found that consecutive sentences were justified considering that the defenda nt committed the crimes whi le on pro bation, that the vi ctim suffer ed sev ere emo tion al dam age as a result of thedefendant’s action, and in order to protect the public

from the d

efenda nt’s furt her cri minal con duct and t o avoid a depreciation

of the seriousn ess of the offenses. We find that the trial court’s findings when sentencing the defendant for a second time similarly support an imposition of consec utive sentenc es, as the y did when the defendant was sentenced to serve c onsecutive sentences after the first trial.

In sum, the defendant’s sente ncing challenge, which

is virtually id

entical t o his sentencing challen ge that

we addr essed in our disposition of his f irst appe al, lack s merit.

Conclusion

For the fore going

reasons , we fi nd that none of the defendant’s allega tions merit relief. Accordingly , the judgment of the trial court is AFFI RMED.

___________________________________ JERRY L. SMITH, JUDGE