# FILED
December 10, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE NOVEMBER 1998 SESSION

STATE OF TENN ESSEE, ) ) NO. 01C01-9709-CC-00385 Appellee, ) ) HUMPHREYS COUNTY VS. ) ) HON. ROBERT E. BURCH, JEREMY AMIS , ) JUDGE ) Appellant. ) (Aggravate d Sexual B attery)

FOR THE APPELLANT : SHIPP R. WEEMS District Public Defender ROBERTH. STOVALL, JR. (At Trial) Assistant District P ublic Defender P.O. Box 160 Charlotte, TN 37036-0160 GREGORY D. SMITH (On Appeal) 1 Public Square, Suite 321 Clarksville, TN 37040 FOR THE APPEL LEE : JOHN KNOX WALKUP Attorney General and Repor ter CLI NTO N J. MOR GAN Assistant Attorney Gener al Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 DAN MITCHUM ALSOBROOKS District Attorney General GEORGE SEXTON Assistant

DistrictAttorney

General County Courthouse, 2nd Fl oor Court Square Waverly, TN 37185

OPINION FI LED:

AFFIRMED
JOE G. RILEY, JUDGE1 It is this Court’s policy not to reveal the names of minor victims of sexual abuse. 2 OPINION

A Humphreys County jur y found defendant guilty of agg ravated sexual battery of atwelve-year- old girl, a Class B

felony. He was sentenced as a v iolent 100% offender to twelve year s in the Department of Correction. Defendant raises the following issues on appeal:

(1) whether the trial cour t e rre d in admitting the test imonyof two witnesses under the “excited utterance” exception to th e hearsay rule; and (2) whether the sentence is excessive. This Court finds no revers ible error and affirms the tri al court’s judgment.

FACTS

In October 1996, T.B., 1 age twelve, met defendant, a ge twenty-two , at th e home of an acquaintance. During the course of their meeting, they agreed to “be boyfriend and girlfrien d.” Defe ndant to ld T.B.’s friend, H.J., to le ave the room. T.B. and defendant were alone in theroom for approximately an hour-and-a-half during which time he trie

d to convin ce T.B. to hav e sex with him. After s ome time , sh e finally “gave in” and, accor ding toT.B.’s testimony, defendant sexually penetrated her. It lasted about five minutes before T.B., crying, asked him to stop. The defendant complied. When T.B. came out of the room upset, H.J. ask ed her what was wrong and T.B. told her what

happened. Another friend, J.C., t estified that T.B. was upset and crying when he arrived at the h ouse a few mi nutes afterward. Upon leav ing the residence, and while still ups et and crying, T.B. told J.C. that defendant did something she did not want him to do. The defense presented no proof at trial.

EXCITED UTTERANCE3 Defendant objected to theadmission of H.J.’s and J.C.’s testimony regarding T.B.’s statements tothem. The state argued that the statements were admissible under the excited utterance ex ception to the hearsay rule. The trial court conducted jury-out hearings with regard to this testimony and found the statements admissible under Tenn. R. Evid. 803(2)

.

A. Tenn. R. Evid. 803(2) excludes from the hearsay rule any “statement relating to a s tartling event or condition made while the declarant was under the stre ss o f excitement

caused by the event or c ondition.” In ord er for a statement to be admissible under the excited utteranc e exception to the hearsay rule, the proponent of the statement must establish: (1) the occur rence ofa startling event or condition; (2) the statement relate d t o that startling event or condition; and (3) the declarant
was under the stress of excit ement when the statement was made

. See N. Cohen et al., Tennessee Law of Evidence § 803(2).2 (3d e d. 1995). Furthermore, the fact that a statement is in respons e to a question does

n ot necessarily exclude it from the excited utterance ex ception. State v. Smith , 857 S.W.2d 1, 9 (Tenn. 1993); see also State v. Reginald L. Edmonds , C.C.A. No. 02C01-9708-CC-00334, Benton County (Tenn. Crim. App. filed August 25, 1998, at Jackson).

B. We co nclude that the trial court did not err in admitting the victim’s statements to H.J. and J.C. as excited utter ances under Tenn. R. Evid. 803(2). A twenty-two-year-old man convince d a twel ve-year-old girl to have sexual contact with him. After a short time, she became understandab ly upset and asked him to st op. When she left the room crying, H.J. asked her what was wro ng. Sh e immediately replied that she had sex with the defendant. Shortly thereafter, while still upset and crying, T.B. made a similar statement to J.C. This sexual activity

for T.B., a twelve-y

ear-old girl, cert

ainly qualified a

s a startling event; her st atemen ts to H.J. and J.C. relat ed to that event; and, even4

assuming the sexual activity occurred early within the 1-1/2 hour period T.B. and the defendant were alone, she was obviously distres sed b y the event and was still under the stress of the event w hen she told H.J. an d J.C. what occurred. The statements were admissibl e. This issue is without merit.

SENTENCING

The trial court app lied three enhancing factors and one mitigating factor to def endant’s conduct. The result was the maximum twelve-year sentence to b e served as a violent offender at 100% in the Department of Correction. Defendant asserts that the sentence is excessive.

A. Firstly, we note the pre-sentence r eport is not a

part ofthe record. We must, therefore, pres ume that the trial court’s rulings are supported by the evidence. State v. Jerry Hil bert Carter , C.C.A. No. 03C01-9603-CC-00102, Greene C ounty (Tenn. Crim. A pp. filed March 4, 1997, at Knox ville); see also State v. Oody , 823 S.W.2d 554, 559 (Tenn. Cr im. App. 1991). Nevertheles s, we elect to address the issue.

B. Ourrevie w of the sentence imposed by the trial court is de novo with a presumption that the determinations of the tri al court are correct. Tenn. Code Ann. § 40-35-401(d); State v. Byrd , 861 S.W.2d 377, 379 (Tenn. Crim. App. 1993). The presumption of correctness which a ttaches to the trial court's ac tion is conditioned upon an affirmative showing in the record that the trial court considered the sentencing principles and all relevant facts and circumstances. State v. Ashby , 823 S.W.2d 166, 169 (Tenn 1991). In this instance, it is clear fro m the r ecord that the trial judge properly2 The trial court r ecited prior con

victions for felon

y theft, misde

meanor theft, passing worthless checks, contributing to the delinquency of a minor, disorder ly conduct and traffic off

enses. 5 considered all appropriate sentencing principles and relev ant facts and circumstances. As such, the presumption of corr ectness attaches to

the trial court’s determinations.

C. At sentencing, the state pres ented evidence of defendant’s criminal h istory, argued for the appl ic ation of three enhancing factors, and recommended the maximum sen tence. The defense put on no proof, but argued for the application of three mitigating factors and requested a mid-range sentence o f nine years. The trial court recited and reviewed all senten cing principles. It then found that three enhancing factors appli ed: (1) th e defendan t has a previous histor y of criminal convictions or cri minal behavior in addition to those necessary to establish the appropriate range; 2 (2) the defendant has a previous history of unwilli ngness to comply with the conditions of rel ease in the community; and (3) the felony was committed while on probation. Tenn. Code Ann. § 40-35-114 (1 ), (8), (1 3) . We presume these factors are applic able in the absence of the pre-sente nce report. The trial court refused to find that defendant’s youth caused him to lack substantial judgment in committing the crim e. See

Tenn. Code Ann. § 40-35- 113(6). It also fo und the p roof con trary t o the asser tion that the crime was committed under such unusual circumstances that it w as unlikely that

a sustained intentto violate the law motivated thecriminal conduct. See Tenn. Code Ann. § 40- 35-113(11). These findings ar e supported by the record. The trial court did, how

ever, find that

the defendant’s conduct neither caused
nor threatene d serio us bodily injury. See Tenn. Code Ann. § 40-35-113(1). But, this mitigating factor

was not given si gnificant weight. The w eight to be given

each factor is left to the sound discreti on of the trial court. State v. Moss , 727 S.W.2d 229, 238 (Tenn. 1986); State v. Leggs , 955 S.W.2d 845, 84 8 (T enn . Crim. App. 1997).6 D. In reviewing the s

entence de novo

with the atta ched pr esumption of correctne ss, this Court concludes that the tr ial court properly applied both enhancementand mitigating factors and pr operly evaluated the r

elevant facts and circumstances

in conjunction with the

sentencing principles. Accordingly, this court will not disturb the twelve-year s entence received by the defendant.

CONCLUSION
Based upon the foregoing, w e AFFIRM the judgment of the trial cour t.

____________________________ JOE G. RILEY, JUDGE

CONCUR:

____________________________ PAUL G. SUMM ERS, JUDGE

____________________________ L.T. LAFFER

TY, SENIOR JUDGE