# FILED
September 9, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE APRIL 1998 SESSION

STATE OF TENN ESSEE, ) ) Appellee, ) C.C.A. No. 03C01-9706-CR- 0 019 7 ) vs. ) Hamilton County ) RAY ANTHONY

NELSON, ) Hon. Stephen M. Bevil, J udge ) Appellant. ) (Second Degree Murder) )

FOR THE APPE LLANT: FOR THE APPELLEE: ARDENA J. GA

RTH JOHN KNOX WALKUP District Public Defender Attorney General & Repor ter DONNA ROBI NSON MILLER (on appeal) ELLEN H. POLLACK KARLA M. GOTHA

RD (at trial) Asst. Attorney General Asst. District Public Defenders 425 Fifth Ave. N., 2d Floor 701 Cherry St., Ste. 300 Nashville, TN 37243-0493 Chattanooga, TN 37402 WILLIAM H. COX, III District Attorney General REBECCA A. STERN BATE S BR YAN Asst. District Attor

neys General 600 Market St., Ste. 310 Chattanooga, TN 37402 OPINION FILED:________________ AFFIRMED CURWOOD WITT, JUDGE1 The victim's name is spelled inconsistently in the record. W e use it as it

appears in the indictment. 2 OPINION The defendant, Ray Anthony Nels on, appeals his convicti on of th e seco n d degree murder of Ester L. Williams. 1 He received his conv iction in the Hamilton County Crim inal Cour t at the co nclusion of a trial by a jury of his peers. In this di rect appe al, he rai ses the f ollowing iss ues for o ur review: 1. Whether the evidence sufficiently supports his conviction. 2. Whether the trial court erred i n admitting evidence of his prior abuse of the v

ictim. 3. W heth er

the trial court erred i n allowing Sister Suzanne Repaskyto testify as an expert witness on domestic violence. 4. Whether his sentence of 25 years is exc essive. Followinga review of the recor d and the briefs of theparties, we affirm the judgment of the trial court.

The defendant and the victim were not married and lived together in
an apartment in a Chattanooga housing project. Their relationship of approximately thirteen years was marred by domestic violence, which culminated with the victim's death at the hands of th e de fendant in December 1994. Following the victim's death, the defendant wasindicted for first degree mur der and ultimately conv icted of second degree murder. This appeal followed.

The state’s proof showed that the victi m and the defendant lived together for several years, part o f the time in Ohio and part of the time in Tennessee. The victim ’s two adul t daughte rs both te stified to havi ng witnessed prior instances of the defendant’s physical abuse of the vic t im. A Chattanoo ga mental health worker testified to a history of domestic v iolence in the victim’ s and the defendant’s home. A neighbor, Mack Smith, testif ied that he regularly heard3

noises from the victim’s and the defendant’ s apartment that sound ed like t he defendant beating the victim and that he heard scream ing and crying every night since the defendant’s arrival at the apartment. He testifiedthe defendant was “an awfully strong fell ow.”

Sister Suzanne Repasky , a Catholic nun, testified that she works as a counselor at the Battered Women Shelter in Akr on, Ohio. Sister

Repaskycame into contact with the

victim through the sh elter. When the victim came to the shelter in October 1992, her face was s carred and bruised and s h e had trouble walk ing. She told one of the counselors that sh e had b een beaten with a pipe by her boyfriend. Someone found her lying in a parking lot and took her to the hospital. Hospital personnel referred the victim to the shelter. Sister Repasky testi fied that the victim came back to the s helter on two occasions. When she left the last time, she reported that she was going to Tennessee. A follow up call w as made three months later, and the victim's mother reported that the victim was doing well.

Sister Repasky testified that acc ording toF.B.I. statistics, 50 percent of women in relationships will be hit at least one time. Additionally, there is abuse in 25 percent of

American households. Accord ing to research in the fiel d, 90 to 95 percentof abused individuals are women. Sister Repasky also said that it is somewhat

typical for

abused women to make up reasons other than abuse for their injuries. They are embarrassed, feel g uilty and bl a me themselves for their pli ght. When asked whether this prop osition applied to abused men, as well, Sister Repask ysaid that she did not have en ough knowledge of abused men t o sa y whether they make up reas ons for their injuries.

Detective Mike Mathis of the Chattanooga Police Dep artmen t was dispatched to the victim's home on December 21, 1994. He narrated a video of the2 This cou rt judicia lly knows tha t Decemb er 29, 199 4 was a Thu rsday.
3 This court judicially

knows that the Monday prior to December 21, 1994 (the date on which the v ictim's body was di scovered) was Dec ember 19. 4 crimescene for the jury. He found no si gn of forced entry. The vi ctim's body was in the bedroom in a cha ir. She was on top of some newspaper s, which had no blood on them. However, ther e was blood under the new spapers on the seat

of the chair. Detective Mathis admitted, however, that to his knowledge the "blood" w as never tested. The body was not verystiff, and Det. Mathis opined that it was in the late stages of rigor

mortis. Men's clothes with what appeared to be blood on them
were found lying on a closet floor. Additionally, a pil low, sheet, towel and washcloth had a red substance on them. Th ere was a clipboard on the dresser with notes written to various ind ividuals. Apparen tly, these notes were wr itten to members of the victim's and the defendant's famil ies by the defendant to apologi ze for and/or explain the victim's death. The notes were sig ned "Ray."

As a result of the investigation, the police suspected th e de fendant and had an arr est warrant issued. Ther eafter, Det. Mathis learned that the defendant had turned himself in to authorit ies in Birm ingham, A labama. Detective Mathis and Sgt. Jeff Francis inter viewed thedefend ant in the Jeffer son Coun ty, Alabama jail on Frid ay, December 29, 1994. 2 The defendant told the officers that he came home from work on Monday evening 3 and had an argument with the victim because he wanted a dollar to buy some cigarettes. The defendant asked the victim to get some money from relati ves who owed

her money so he could buy the cigarettes. They went to see the rel atives but were unsuc cessful in gett in g any money.

An argument ensued when they gothome. There had been a lot of arguing recently o ver money. The argument escalated to y elling and screaming.5

During the argument, both the victi m and the defendant claimed to have ot her love interests. The victim started to pi ck up atelevision set to throw at the defendant, but the defendant was able to get it away from the vi ctim. The defendant snapped, and a physical fightensued, although the victim did not really fight back. The victim
was "meaner" than usual. Althoug h the defen dant had been able to control his anger in the past, he was unable to do so on this occasion. He had the victim on the floor next to the bed, and he was on top ofher using his knee and pl acing it on different parts of her torso. There was blood c

oming from her face, mouth and
nose. The defendant realized the victim was not able to breathe. He stopped the assault and began tohold her. He said first he thoug ht she was unconscious, an d later, he said he thought she was dead. The defendant implied to the officers that he did not realize how

seriously the vi ctim was hurt until he saw her bleeding and not breathin g. In the s tatement, the defendant said he cleaned the v ictim's body and took off her clothing. He placed the body in a recl iner. He sat in the chair with the body during the nig ht and held it.

The next morning, the d e fendant decided to leave. He cov ered the victim's body with blankets an d placed newspapers under i t. He started out on foot in Chattanooga, and he eventu ally caught a ride w ith an elderly gentl eman who boughthim a bus ticket to Birmingham. He stayed in shelters in Birmingham and disposed of some clothing and his key to the victim's

apartment.

The defendant told the officers that he h ad liv

ed with the vic tim off and
on since 1982. Their relations hip had been riddled with fights and problems. He showed the officers scars from altercations in which the victim st abbed and cut h im. Nevertheless, the defendant claimed to have loved the victim and put up with this.

The defendant made it clear to the officers that

he was the only one6

involved in the victim's death. He cr ied at times during the interview and said he
never meant to kill her . He did n ot mention a "code word" the victim used which indicated she was goi ng to get a knife.

Doctor Fran k King, the Hamilt on County Medical Ex aminer, performed
an autopsy of the vict im's bo dy and determined that she died as a result of blood loss and respiratory insufficiency from multiple blunt trauma injur ies. These injuries included contusions, abrasion s, lacerations, internal hemor rhages and bone frac tures. Doct or King described the ov erall pattern as one of a beating . The victim's body had si gns of defensive injuries.

The contusions were we ll develope d , which means that the vi ctim may have had a period of surviva l bet ween the infliction of the injury and the time of dea th. However, the dev elopment of the contusions could als o result from continuing hemorrhaging after death. Doctor King opined that a person could live hours or even a day or so with the se injuries, provi ded the individual had the will to continue breathing and the body maintainedblood pressure. He further opined that the victim would hav

e had "a good chance for recovery" if she had been taken to an emergency

room.

In his case-in-chief, the defendant took the stand. He testifiedthat he
was 41 years old. He met the victim in 1981, and he began living with the victim and her daughters that year. Their relationship became troubled a few years later when the victi m's daug hters g ot older and left home. The defendant fought with the victim about moral issues related to the victim's daught

ers and what they should be allowed to do. He testified the victim suffere d from phle bitis and had a history of psychiatricproblems. He admitted he had abused the victim but testified that they
were both violent at

times. The trial court admitted photographs of between 17 and4 Later in his testimony, the defendant claimed tha t he and the victim were

going to Ohio together

in January to see his mother and to get married.

7 30 scars which the defendant tes tified were the results of cutting and stabbing injuries i nflicted on hi m over time by the vi ctim.

After the vic tim left Ohio the last time, the defendant remai ned in Ohio fors even mon ths but came t o Chattanoog a at the vic tim’s requ est to resume cohabitation with her

in July 1994. The couple argued frequently about the victim’s irrespon sible use of mone y.

On the day of

t he victim’s death, w

hich the defendant testified was December

19, she and the defendant argued about money owed the victim by

her family members. He told her he was going to leave her after the holiday. The victim said she did not care because she had another boyfriend, and the defe ndant
re sponded that he had two girlfri ends in Ohio and a house in w hich to put

them. 4 The argument escalated into a phy sical confrontation, with the victim moving to pick up a television set. T he defend ant thought the victim w as going to throw the televi sion at him, and he was able to tak e it away from her. The v ictim called th e defendant a name. The defendan t claimed the victim used this name when she
was about to assault him with a kni fe. The vict im started toward the dir ection of kitchen, and the defendant thought shewas going to get a knife. He grabbed her from behind and began beating her. He claimed to remember hittingher two times, then losing his memory till he looked in her eyes and saw that she was "gone." He was sure she

was dead. The defendant placed the victim in a c hair. He held her in his arms, rocked her, and t alked to her

all night. The defendant denied intending to kill the victim when he hit her. He claimed to be very remorseful ov

er her death. Th e defendant went to Birmingham where he essentially lived on the st reets an d sleptat a shelter. He decided to turn himself in and wen t to a municipal building8

and talked to the authorities.

The defendant admitted that th e v ictim had been in a battered women's shelter in Ohio in the past. He also admitted he had probably hit her first
on at least one of those occasions w hen she wound up in the shelter. He admitted he wa s in a position to get out of the bedroom when the victi m reac hed for th e television set, but he did not leave. He denied ever hitting or raping the victim with
a metal pipe as reported in the victim's medical and shelter records. He cla i med any injury from the

alleged rape with the pipe actually resulted from consensual sex aftera fight. He said no one from the shelter or hospital had ever talked to him about these allegations.

The jury found the d efendant n ot guilty of first d egr ee murder , but it found him guilty of the lesser offense of second degree murder.
Thereafter, the court conducted a sentencing hearing, at w hich the victim's daughters testified they both were unable to wor k due to their distress over theirmother's murde r. Bot h daughters had children w ho were scared and upset since the victim's death. The defendant off ered character references in letter form from a fellow inmate, a childhood Sunday school teacher, two long-time friends, and
a widow for whom the

defendant had done home repairs. Generally, these letters attested to the defendant's uncharacteristic behavior in killin g the victim, his Christian background and his willingness to help others. The trial court foundtwo enhancementfactors, (1) that the defendant had a previous history of cri mina l convictions

or criminal behavior, and (2) that he treated the victim with ex

ceptional cruelty during the offense. See Tenn. Code Ann. § 40-35-114(1), ( 5) (1997). The court found no mitigating factors. Accordingly, it i mposed a sentence of 25 years.9 I In his first issue, the defendant attacks the sufficiency of the convicting evidence. Essentially, he argues that he acted in self defense. When a defendant challengesthe sufficiency of the evidence, an appellate court’s standard of revi ew is, whether after considerin g the evide nce in th e light most favorable to the prosecution, any

rational trier of

fact could have found the essential elements of the crimebeyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 324, 99 S. Ct. 2781, 2791-92 (1979); State v. Duncan , 698 S.W.2d 63, 67 (Tenn. 1985); Tenn. R. App. P. 13(e). This rule is applicable to findings of gui lt based upon direct evid ence, circumstantial evidence, or a combin ation of direct and circumstantial evidence. State v. Dykes , 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990).

In determining the sufficiency of the evidence, this court s houl d not reweigh or ree valuate the evidence. State v. Ma tthews , 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Questions concerning the

credibility of the witnesses, the weight and value of the evid ence, as we ll as all factual issues raised by the evidence are resolved by the trier of fact. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). Nor may this c ourt substitute its inferenc es for those drawn by the trier of fact from th e evidenc e. Liakas v. State , 199 Tenn. 298, 305, 286 S.W.2d 856,859 (1956); Farmer v. State , 574 S.W.2d 49, 51 (Tenn. Crim. App. 1978). On the contrary, this court is required to afford the State of Tenne ssee the st ronges t legitimateview

of the evidence contained in the record as well as all reasonable and legitimateinferen ces which m ay be drawn f rom the evidence. Cabbage , 571 S.W.2d at 835.

In pertinent part, second degr ee murder is "[a] knowing killing of another." Tenn. Code Ann. § 39-13-210(a) (1997). The defendant freely admitted that he and he alone killed the v ictim. Thus, we must determi ne w hether there is10

sufficient evidence that the defendant ac ted knowingly but not in self-defense.

In the light

most favorable to

the state, the evidence str ongly supports that t he defendant acted knowingly . He engaged the vic tim in an argument t ha t escala ted from words to physical force. Rather than walk away when he had th e chance, he stayed in the apartment and brutally assaulted the victim. He continued the assault even tho ugh the victim was not r eally fighting back.It is apparent from the number and severity of the injuries described by Dr. King that the assault was violent and of some duration. The injuries included blows to t he head and cru shingtype injuries to the chest. A fter the defendant incapacitated the victim, he failed to summon medical assistance w hich might have saved

her life.

With respect to the defendant's self-defense c laim, we begin our analysis by noting that self-defense is a general defense under the CriminalCode. See Tenn. Code Ann. §§ 39-11-203(a), - 601, -611 (1997). But see State v. Richard Edward Brown , No. 01C01-9301-CC-00027, sli p op. at 4 (Tenn. Crim. App., Nashville, Aug. 26 , 1993) ( charact erizi ng self defe n se as an affirmative defense), perm. app. denied (T en n. 1993). When a general defense is "fairly raised," the state must disprove its

applicability bey

ond a reasonable doubt. Tenn. Code Ann. §§ 39-11-203(c), (d), -

201(a)(3) (1997); State v. Culp , 900 S.W.2d 707, 710 (Tenn. Crim. App. 1994). Clearly, the j ury found beyond a reasonable doubt that the state had met its burden. See State v. Fugate , 776 S.W.2d 541, 545 (Tenn. Crim. App. 1988) ("Whether a homicide is excusable because done in defense of person presents a classic question for jury determination.") (citations omitted). The record stronglysupports the jury's conclusion. The defendant testified that the victim did not really fight back. The defendant was physicall y strong, and the vi ctim had both physical and mental frailties.11 In the light most favorable to th e state, the proof fails to justify the killing of the victi m and supports a convictio n of murder in the second degree.

II In the second issue before the court , the defendant complains of the trial court's admission of evi denc e during the state's case-in-chi ef of alleged prior abuse the defendant inflicted on the victim. He general ly attacks the evide nce as be in g far more prejudicial than pr obative. Second, he attacks the court's ruling allowingthe state to cross-exami ne him about his alleged v aginal and anal rapeof the v ictim w ith a met al pipe an d furthe r allowing th e state to offer co rroborat ive medical and shelter records as rebuttal evid ence. H e claims this was a c ollateral issue and its admission was violative of his r

ight to due process. The stat e defends admission of the alleged prior inst ances of non-sexual abuse duri ng the state's case-in-chief

to show motive and intent. The state also argues that cross-examining the defendant about the alleged rape w as proper

impeachment evidence to rebut the defendant's claimsof self-defense, lack of intent to harm the victim and mistake
or accident. Further, the st ate argues , eve n if the sexual assault ev idence was admitted in error, it was harmless error.

In t he case at b ar, the court conducted a heari ng on the issue of admissibility

of the prior abuse evide nce before the court seated the jury. Th e proposed evidence took two forms. First, the state planned to offer testimony of the victim's daughters and Sister Repas ky. The daughters wou ld testify ab out their eyewitness observations of the defendant abusing the victim andthe efforts the d aughters exerted to assist t heir mother in m oving from Ohio to Chattanooga o n multiple occasion s to get awa y from the defen dant. Si ster Re pasky w ould tes tify about her observations of the victim's injuri es while the victi m was at thewomen's shelter. Second, the state proposed to offer the r ecords from the victim's medical5 There are records from other ser vice providers doc

umenting reports of abusive injuries to w

hich the defendant voiced no speci fic objection. In fact, the defendant requested, "[I]f the Sta te is allowed to present certain records I would request that all of the recor ds be introduced."
6 In contrast, in at least some of the records from the Battered Women's Shelter, the victim ide ntified her abuser as "Ray Nelson." 12 treatmentand women's shelter sta ys which contained the vi ctim's hearsay declarations about the defendant's ab use of her.

The defense specificall y object ed to the admission of two sets of recordsfrom Akron (Ohio) General M edical Cente r a nd the Battered Wom en's Shelter as proofthat the defendant had ab used the vi ctim. 5 The defense contended the documentary evidence shou ld notbe admitted because (1) the defendant could not cross-ex

amine the decl arant/vic tim, (2) the medical records reflect the victim's statementthat her assailant was "h er boyfriend" without s pecifically naming the defendant, although "Ray Nelson, boyfriend" is list ed as the victim's next of kin
e lsewhere in the medical records, and the victim may have had more t han on e boy friend, 6 (3) the victim's al leged statements in the recor ds did not fall into recognizedhearsay exceptions, and (4) t he probative value of the ev idence was outwe ighed by the danger of unfair prej udice. Notably, the defense nev er specifically contended at the pretrial hearing that the victim's reports were inaccurate as to the nature of the i njuries inflicted.

The trial court determined the evidence was relev ant and probative of intent, identity and absence of accident. It found the medical records documenting the victim' s reports of the abuse admissible under three hearsay exceptions -- excited utterance , then existing mental, emoti onal or physical condition, and sta tement fo r purposes of medical diagnos is and treatment. See Tenn. R. Evid. 803(2), (3), (4). On the other hand, the c ourt found the alleged rape with the metal7 The alleged beating and alleged rape were part of the same i ncident. 13 pipe "extremely prejudic ial." See Tenn. R. Evid. 403, 404(b) (3). Th e court ruled that all of the evidence excep t the alleg ed rape with the metal pipe w ould be allowed. The court specifically allow ed evidence of an alleged beating with a metal pipe. 7 In order toallow admission of the documentary evidence in conformity with its ruling, the court

ordered redaction of references t o the alleged rape.
During the defendant's c ross-examination, he testified that many of the situations of domestic abuse which occurred through the years were "mutualtype" occurrences. Moreover, the defendant denied ever strik ing the victim with a pipe. He said the victim would provoke him by urinating on the floor a nd then come at him with a

kni fe when he said something about it. Immediately following this testimo ny, the state asked the court to revisit its r uling about the alleged pipe rape. The court decided to allow admission of this evidence in "light of [the defen dant's] response that this . . . w as a mutual thing and she star ted it as much as he did."

When asked about the sexual assault on further cross-examination, the defendant denied the eve nt. He explained t he victim's physical findings documented in the medical records a s resultin g from con sensual sex, rather than rape with a pipe. On redirect examinati on, the defendant said that no one from the hospital or shelter had ever as ked his side of the story regardin g the alleged rape.
Followingthis testimony and a rul ing by the trial co urt, th e state entered into

evidence, in unredacte d form, the medical and shelter reco rds of the alleged rape which ha

d previous ly been int roduced in r edacted form.

We will consider the evidence in three categories -- (a ) ev idence of14

non-sexual abuse about which the defendant did not challenge veracity, (2) evidence of non-sexual abuse about which the def endant c hallenge d the verac ity, and (2) evidence of sexual abuse.

A First, we must consider the admissibility of the state’s ca se- in-chief evidence of abuse o

f a non-sexual nature for w hich the defendant made no veracity challenge.

As a general proposition, evidence of a defendant's character or a trait of his character is not admissible to prove that he committed the cr ime in question. Tenn. R. Evid. 404. How ever, evidence of a defendant's prior crimes , wrong s or acts may be admissible to show such other things as int ent, knowledge, identit y , completion of the story, opportunity and preparation. Tenn. R. Evid. 404(b); Nei l P. Cohen, Sarah Y. Sheppeard, and Donald F. Paine, Tennessee Law of Ev idence § 404.6 (3d ed. 1995). In order for a defendant's prior crimes, wrongs or acts to be admitted, the rule specifies three prerequisites: (1) The court upon request must hold a hearing outside the jury's presence; (2) The court must determine t hat a material issue exists other than conduct conforming with a character

trait and must upon request state on the record the materi al issue, the ruling, and the reasons for admitting the ev idence; and, (3) The court must exclude the e viden ce if its probative value is outweighed by the dang er of unfair prejudice. Tenn. R. Evid. 404(b). A fourth prerequisite to admission is that the court find by clear and convincing evi dence the defendant committed the prior crime. Tenn. R. Evid. 404, Advisory Comm'n C omment; State v. DuBos e , 953 S.W.2d 649, 654 (Tenn. 1997); State v. Parton , 694 S.W.2d 299, 30 3 (Tenn. 1985).

In reviewing a tr

ial court's decision t

o admit or exclude evi dence, an15

appellate court may disturb the lower court's ruling only ifthere has been an abuse of di scr etion. DuBose , 953 S.W.2d at 652; State v. Baker , 785 S.W.2d 132, 134 (Tenn. Crim. App. 1980). Where, as here, the tri al court hasbeen called to pass upon the admissibility of evidence of other crimes, wrongs or acts under Rule 404(b), its determination is entitled to deference only if it has substantially complied with the procedural r

equisites of Rule 404(b). DuBose , 953 S.W.2d at 652.

It is apparent from the

record that the trial court held he arings outside the jury's pre sence. Tenn. R. Evid. 404(b) (1). Likewise, it determined that a material issue other than conduct conforming with a character trait of the defendant existed, and it stated the material iss ues, its ruling, and its reasons for admitting the evidence on the record. Tenn. R. Ev id. 404(b)(2). The court also as sessed, we believe correctly, the probative value of the evidence versus the danger of unfair prejudice from its admiss ion. Tenn. R. Evid. 404(b) (3). However, w e see no evidence of record that the trial court determined by clear and convincing evidence that the defendant committed the prior ass aults against the victi m. See Tenn. R. Evid. 404, Advisory Comm'n Comment; DuBose , 953 S.W.2d at 654; Parton , 694 S.W.2d at 303. Therefo re, t he first question becomes w hether there has been "substantial compliance" with the procedural prerequisi

tes of the rule. See DuBose , 953 S.W.2d at 652.

We hold that there was subs tantial compliance. Although the tr ial court failed to make a finding that the ev idence clearly and conv incingly showed

that the alleged events oc

curred, it appears there was no real question in that regard. The defendant did not contest the veracity of the eyewitnesses' pr oposed testimony and voiced no specific objection to the accuracy of victim's injuries as recorded in the documentary evidence. He admitted to years of abusing the victim during his testimony. He further

admitted some

of this abuse had caused the vi ctim to seek8 On the other hand, we find abuse of discretion in the trial court's

determination that the evidenc e was admissible on the i ssue of identity. Evidence i s admissibl e under Rule 404(b) only

where it i s probativ

e of "some matter actually in iss ue." State v. Howell , 868 S.W.2d 238, 254 (Tenn. 1993) (citation omitted). There w as no material issue of identit y at trial. The defendant gave a pre-trial s

tatement in which he admitted k illing the victi m. The contested issue was whether h e did so in self defense. Howev er, there is no harm in the trial court's erroneous

ruling because the evi dence was otherwise admissible to show intent. Additionally, we q uestion whether the evi dence of the defendant's alleged prior abuse of the victim w as admissible to a claim of absenc e of mistake or accident. We do not perceive the defendant's posi tion to have been that he mistakenly or accidental ly killed the vi ctim. See State v. McCary , 922 S.W.2d 511, 514 (Tenn. 1996) (prior bad acts of def endant not admissible to rebut claim of accident where defendant has not asserted such as a defense). At most, his evidence is that he did not intend to kill the vic tim. On appeal, the state has not defended this ground for admission, and we find it unnecessary to resolve the issue because the evidence i s otherwise admissibl e to show intent.
16 hospital treatment and admission to a shelter. His only denial was that he ever hit
or sexually assa ulted the victim with a metal pipe. There being no real issue that the events other than the alleged metal pi pe incident actually o ccurred, we believe the trial cou rt's findings substantially comply with the procedural prerequisites. Accordin gly, our review of the admissi on of t his evidence is subjec t to the deferential abuse of discretion st andard.
Moreover, we find no abuse of discretion in the trial court's admissi on of the evidence. The testimony during the state's case- in-chief o f witnesses who had seen the defendant physically abuse the victim and w ho had observed the victim's physic

al inju ries w

as rele vant an d probat ive of t he defe ndant 's intent to commit the crime of murder. 8 Likewise, the records further documenting these prior instancesof abuse were highly probative. "[V]iolent acts indicating the relationship between the victim of

a violent crime and the defendant prior to thecommission of the offense are relevant to show the defendant’s hostility tow ard the victim, malice, intent, and a settled purpose to harm the victi m." State v. Smith , 868 S.W.2d 561, 574 (Tenn. 1993); see a lso State v. Leon Barnett Coll ier , No. 03C01-9602-CR-17

00072, slip op. at 18 (Tenn. Cri m. App., Knoxville, Ja n. 13, 1997) (defendant's prior violent acts towar d murder victim rele vant and p robative o f motive and intent), perm. app. denied (Tenn. 1997).

The high probative value of this evidence was not outw eighed by the danger of unfair preju dice. The jury was properl y instructed not to consi der the evidence as indicative that the defendant acted in conformity witha character trait
or his propensity for such action. Significantly, this was not a ca se in whi ch the presentation of prior bad act evidence pos ed the danger th at the j ury might improperly conclude that the defendant was the person who

committed the

crime in question because he had committed a similar wrong agains t the victim in the past. Here the def end ant admitted he killed the victim. Moreover, the trial court correctlyfound the evidence admissible under excepti ons to the hearsay rule. The trial court acted wi

thin its discretion in admitting this evidenc e.

B Next, we consider the e vide nce of prior abuse about whic h the defendant mounted a veracity challeng e at the pretrial hearing . The evidence to which the defendant did mount a veracity chall enge wasthat of the alleged assault with a pipe, both sexual and non-sexual.However, the tri al court allowed only the evidence of the non-sexual pipe assault as part of t he state 's case-in -chief, and we consider only the propr iety of that evidence in this section of this opinion.

At the pretrial hearing, the defense objected to the admission of the two sets of medical records from Akron General M edical Center and the Battered Women's Shelter. The trial court found the evide nce mater ial on an issue other than co nduct conforming with a ch aracter trait of the defendant, and it found t h e probative value g reater than the danger of unfair prejudice. However, the court18

made no finding that the evidence cle arly and convincingly established that this abuse occurred. In the

pretrial hearing th e defen se conte nded the victim may h ave been referring to a boyfriend other than the defendant when she r eported to hospital and shelter personnel that her boyfriend inflict ed these injuries. At trial,the defendant denied inflicting injuries with a metal pipe. Thus, the determinatio n that the defendant committed the prior acts do cumented in the medical records was a contested issue. Given this s ituation, we do not see substantial compliance with the procedural prerequisites of Ru le 404(b) and DuBose in determining whether the evidence was admissible during the stat e's case-in-chief. The question becomes, then, whether the trial court nevertheless reac hed the proper conclusion.

In reviewing the medi cal records from Akron General Medical Center and the Battered Women's Shelter for the time period relevant to the alleged assault with the pipe, we find it notew orthy that the victi m identi fi ed her assailant as her boyfriend in the hospital records. In another place in the hospit a l records, she identified the defendant as her boyfriend. She reported at the Battered W omen's Shelter that she was abused by he r boyfriend, with w hom she had been involved forten years. The information about the length of the victim's relationship with

her boyfriend is consistent with her long-term romantic relationship with the defendant. We a lso find it noteworthy that the trial court admitted portions of this evidence under hearsay exceptions for excited utterance, then existing mental, emotional or physical condition, and statement for purposes of medical diagnosi s and treatment. A common thread among these three hearsay exceptions is the belief that these types of statements are trustworthy because of the declar ant's frame of mind or motive in speaking. See generally Neil P. Cohen, SarahY. Sheppeard, and Donald F. Paine, Tennessee Law of Evidenc e §§ 803(2).1, 803(3).2, 803(4) .1 (3d ed. 1995). We believe that the trial court's finding that these statements

fit within these hearsay exceptions affords them an enhanced levelof reliability. When this9 For the reasons stated in section II.A. above, we find evidence of this

incident material to show the defendant's intent.
10 The documentary evidence cons isted of the medical and shelter r ecords relevant to the alleged

pipe rape. Unlike the copi es of these same records admitted during the state's case-in-chief, the records the court ruled admissible at this juncture of the trial did not have the references to the alleged rape redacted. 19 enhanced reliability in the victim's declarations that she recei ved certain injuries

at the hands of her boyfriend is coupled with the strong circumstantial evidence that the defendant is the boyfriend to w hom the victim was referr ing, the result is clear and convincing evid ence that the d efen dant committed the prior assault of the victim.

Had the trial court made an appropria te findi ng that the defendant's prior pipe assault of the v ictim was established by clear and convincing evidence, thi s would only buttress its ruling on the admis sibility of the pipe ass

ault incident

. The trial court found the evid e nce of this incident material on an issue other than conduct conforming with a character trait of the defendant 9 and its probative value
was not outweighed by

the danger of unfair prejudice. We agree. This was but one other incident in a long history of violent, abusive behavior by the defendant against the victim. We fail to see how the e vide nce of one additional incident of the nonsexual portion of this all eged assault prejudiced the defendant.

C Finally, we must consider the court's ruling allowing the state to crossexamine the defenda ntabout the alleged pipe rape and offer docum entary evidence in rebuttal. 10 The tria l court ra tionalized that this evidence should be admitted in "light of [the defendant's] response that this . . . was a mutual thing and she started it as much as he did."20 We disagree with the trial court's decision to allow the crossexamination and admit the unredacted records. "Relevant e vi dence" is that evidence which has "any tendency to make the e xistence of any fact that is of consequence to the determination of the action mor e probable or

less probable than it would bewithout the evidence." Tenn. R. Evid. 401. Only relevant evidence is admissible. Tenn. R. Evid. 402. The defendant's alleged rape of the victim with a foreign object does nothing to make it more probable or less probable that the victim engaged i n mut ual combat with the defendant or that the victim was the first aggressor in such confrontations.

Moreover, on the issueof whether the victim w as the first aggressor at the time of the fatal conflict, the ev idence ofthe specific incident of rape was not independently admissible when offered by the state to rebut d efense c laims that the victim was the first aggressor. Tenn. R. Evid. 404(a)(2), 405; State v. Ruane , 912 S.W.2d 766, 781 (Tenn. Crim. App. 1995) (evidence of prior v iolence involving the victim inadmissible under rules 404(a)(2) a nd 405 “if offered for anything more than mere corroboration” of the d e fendant’s claim that the victim was the first aggressor); see also State v. Hill , 885 S.W.2d 357, 362 (Tenn. Crim. App. 1994); State v. Ray , 880 S.W.2d 700, 705- 06 (Tenn. Cri m. App. 1993). Nor was the evidence independ ent ly admissible as impeach ment by contradiction of the defendant as a witness, as the tr ial court in its comments s eems to suggest. See Tenn. R. Evid. 403, 607; Nei l P. Cohen, Sarah Y. Shepp eard & Donald F. Paine, Tennessee Law of Evidence , §§ 607.3 (1995) (discussi ng the Tennessee “collateral evidence” rule that l imits impeachment by fact contradicti on on collateral issues to cross-examination of the witness); State v. Perkinson , 867 S.W.2d 1, 6-7 (Tenn. Crim. App. 1992); State v. Terry Bow en , No. 01C01-9505-CC-00158 (Tenn. Crim. App., Nashville, Aug. 1, 1996).11 The defendant also claims the admission of the alleged rape depriv ed him of a fair trial under the federal and state constitutions. We find this issue waived for failure to ci

te relevant authority

addressing the alleged constitutional deprivation. See Tenn. R. App. P. 27(a)(7); Tenn. R. Ct. Crim. App. 10(b)

. However, had the defendant pr operly presented a question of constitutional magnitude, we would find the error harmless beyo nd a reasonable doubt for the reasons discussed in the tex t above. 21 However, we ar

e convinced that the admission of this evidence was harmless error. The defendant admitted he killed the victim. The question for the jurywas not the identity of the killer, but the defendant's mental state atthe time of the crime. The evidence that the defendant's acts were,at a minimum, "kn owing"
was overwhelming. The victim's daughters testified about the years of abuse they witnessed the defendant inflict on the victim. Furthermore, the de fenda nt was charged with first degree mur de r, but the jury convic ted him of second degree murder, which unde rcuts any a rgum ent that the jury was so inflamed by this evidence that it failed to w eigh the evidence and return a just verdict. 11

III In his third issue, the defendant al leges that thetrial court improperly allowed Si st er

Re pa sk y t o t esti fy as an expe rt

wi tn es s o n d om esti c vio le nce. We find both parties' contention that Sister Repasky was allowed to testify as an expert somewhat

mystifying. Extensive voir dire was conducted, culminating in the court rulin g that Sister Repasky c ould testify as an expert on domestic violence but no t battered woman syndrome. How ever, when the jur

y returned, the state nev er offered Sister Repasky as an expert witness. M oreover, the bulk of Sister Repasky's testimony concerned factual matters such as the contents of the victim's shelter records a nd the witn ess' reco llection of the vic tim's sta ys at the shelter. The state elicited statistical

evidence about domestic abuse,and the defense offered no objection.22 On cross-examination, the defense established th at Sister Repasky could not cite to the source of some of the s tatistical evidence g iven dur ing h er direct examination. The defense also asked Sister Repask y questions based upon her years of experience in dealing with the victims of domestic abuse.
After Sister Repasky testified, the court went so far as to remind the prosecutor

that she had not qualified the witness as an expert, and the prosecutor indicated she had abandoned more ex

tensiv e exami nation o

f S i ster Repasky because the jury looked ti red.

Although the trial court allowedthe state to offer Sister Repasky as an expert witness, the state never did so. Because Sister Repasky w as never tendered as an expert witness, we find no justiciable issue in the defendant's claim that the tria l court improperly all owed her to testify as an expert witness. A

dditionally, w e find it noteworthy that the o nly evidence which arguably might require expert qualification (i.e. the statistical evidence and the testimony based upon the witness' experience) was either not objected to or elic ited by the defense.

IV The final issue is whet her t he trial co urt impos ed an exce ssive sentence of 25 years, the maximum sentenc e for second degree murder. In determining whether the trial court has properly sentenced an individual, this court engages in a de novo review of the record with a presumption that the trial court's determinationswere c orr ect. Tenn. Code Ann. § 40-35-401(d) (1997). This presumption is "conditioned upon the affirmative showing in the record that the trial court considered thesent encing principles and al l relevant facts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). In conducting
our de novo review, we must consider the ev idence at sentencing, the presentence23

report, the sentencing pr inciples, thearguments of counsel, the statements of the defendant, the nature and characteristics of the offe nse, any mitig ating an d enhancement fa ctors, and the defendant’s amenability to rehabilitation. Tenn. C od e Ann. §§ 40-35-210(b), 40-35-103( 5) (1997); Ashby , 823 S.W.2d at 168. On appeal, the appellant has the burden of showing that the sentence imposed is im proper . Tenn. Code Ann. § 40-35-401(d), Sentencing Comm'n Comments (1997); Ashby , 823 S.W.2d at 169.

We find that the tria l court conducted its sentenc ing determination under the statutory framework; therefore, its determin ation is entitled to the presumption of correctness.

The defendant contends the trial court erred in failing to f in d any mit igating factors . In his bri ef, the defend ant recit es many f actors he believe s should have been applied. First, the defendant turned himself in, gave a voluntary statement, and cooperated fully with the authorities. See Tenn. Code Ann. § 40-35- 113(13) (1997). The defendant had tremendous remor se and potential for rehabilitation. See Tenn. Code Ann. § 40-35-113(13) (1997). The defendant had received sign if icant prior injury from the victim. See Tenn. Code Ann. § 40-35- 114(3), (4) (1997). The defendant

had positive as pects to his lif e as evidenced by the character reference letter s introduced at the sentencing hearing. Se e Te nn. Code Ann. § 40-35-113(13) (1997). We fail to find m erit in any of these arguments.

Fir st, we disagree that the trial court erred in its deci sion not to mitigate the defendant's sentence because he assi sted the autho rities. The defendant's actions cam e f ar too late to help the vi ctim. By the time he turned himself in, th e victim had been dead for w ell over a week. The defendant had already been identified as the perpetrator, and an arres t warrant had been issued.12 The defendant did not testify at the senten cing hearing; therefore, the

evidence of his alleged remorse came from the trial. 24 Thus, his "cooper

ation" was

of limi ted assistan ce to the authorities. Cf

. State v. Aaron V. Yelloweyes , No. 01C01-9407-CC-00256, sli p op. at 7 (Tenn. Crim. App., Nashville, May 11, 1995) (mit iga ting factor that defendant assisted autho rities in locating or recovering person or property involv ed in crime of slight value where there was delay in defendant's assistance in leading authorities to sit e w here victim's body was

buried), perm. app. denied (Tenn. 1995). But see State v. Gilboy , 857 S.W.2d 884, 889 (Te nn . Crim. App. 1993) (sentence mitigated because defendant assisted authorities).

The trial court rejected the defendant's bid for mitigation bas ed on
remorse and potential for rehabilitati on. The court found the evidence of remorse in credible. 12 Likewise, the court found the defendant's crime was "total l y unnecessary,”

that the defendant was a viol ent man, and there was a leng thy historyof abuse by the defendant against the v ictim. The trial court i s in aposition superior to that of this court to observ e the defendant's mood and man nerisms. State v. Michael Robinson , No. 03C01-9510-CC-00303, slip op. at 24 (Tenn. Cri m. App., Knoxville, June 24, 1 997) , perm. app. denied (Tenn. 1998). We decline to disturb the tria l court's findin g.

The t rial court also rejec ted the defendant's contention that h i s sentence should be mitigated because he had received previous serious injury from the victim. The trial cou rt found that the defendant was a strong man and simply could have ch osen to w alk aw ay fr om the vi ctim. The defendant has failed to overcome the pre sumed correctn ess of this fin ding.

Finally, it is apparent that the tria l court was unpersuaded by the25

defendant's character references. As pr eviously stated, he

found that there was no
reason forthe defendant to have killed the victim. The defendant had abused the victim for years. The defendant had serious character flaws, and the trial court did not err in failing to apply this mitigating factor.

The trial court gave great weight to the two enhancement fac tors i t found, the defendant's past history of criminal behavior and the exceptional cruelty with which the defendant treated the v ictim during the commissi on of her murder. Consideringthe heavy weight afforded these factors and the absence of mitigating factors, we find that the presumed correctness of the maximum sentence imposed by the tria l court ha s not bee n overcom e by eviden ce to the contrary.

In summary , we fin d no err or requ iring

rever sal and a

ff irm th e judgment of the trial court.

_______________________________ CURWOOD WITT, JUDGE
CONCUR:

_____________________________ PAUL G. SUMMERS, JUD GE

_____________________________ JERRY L. SMITH, JUD GE