# FILED
July 24, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON MAY 1998 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. No. 02C01-9709- CC-00354 Appellee, ) ) Henry County V. ) ) Honorable Julia n P. Guinn, Judge ) FRED BRYAN LINGENFELTER, ) (Rape, Sexual Battery, Incest (3 counts)) ) Appellant. )

FOR THE APPE LLANT: FOR THE APPELLEE: Guy T. Wilkinson John Knox Walkup District Public Defender Attorney General & Reporter W. Jeffery Fagan Elizabeth T. Ryan Assistant District A

ttorney General Assistant Attorney Gener al 117 North Forrest Avenu e 425 Fifth Avenue North P.O. Box 663 2d Floor, Cordell Hul l Building Camden, TN 38320 Nashville, TN 37243-0493 Robert “Gus” Radford District Attorney General 111 Church Street P.O. Box 686 Huntingdon, TN 38344-0686 Todd Rose Assistant District A

ttorney General Paris, TN 38242 OPINION FILED: ___________________
AFFIRMED PAUL G. SUMM ERS, Judge-2- O P I N I O N
The appellant, Fred B. Lingenfelte r, was convicted by a jury of three counts of incest, one count of sexua l battery, and one count of rape. He was sentenced concurrently t o three years for each count of incest, one year for sexual battery, and ten years for rape. He appeals , challenging the sufficienc y of the evidence and the proprie ty of certain evidentia ry rulings. We affirm the judgment of the trial court.
The victim is the appellant’s stepdaughter. She was eighteen years old when the appellant committed the offenses against her. The vict im testified that in October of 1995, the appellant enter ed her bedroom, pulled back her bed covers, and began to undre ss her. The appellant told her that he wanted to show her how much he lov ed her. When the victim said ”No,” t he appellant became angry. He we nt to his room and retriev ed a gun. He returned naked. He placed the gun to the victim’s vagina and threatened to shoot her if she did not “show h im that she l oved him.” The appellant vaginall y penetrate

d the victi m.

The victim testified that the appellant forced her to have s ex in December 1995. After this incident, the v ictim tried to move out of her parent’s home. When the victim discussed the move w ith the appellant, he put a gun to her chest. The appellant told the v ictim if she was going

to mess up her life, then he was going to kil l her. The victim testi fied that the appellant told her to make the right decision and stay

with him. The victi m testified that she stayed w ith the appellant and her mother so that th e appellant would not shoot he r.
In January 1996, the appellant threatened the victim w ith a knife, stating that she did not respect her bod y. The victim testified

that the appellant placed the knife close to her breast an d vagina. The appellant w as angry because the-3- victim had been dating a four teen-year-old boy. The victim testified that the appellant did not want her to date “at all.”
In late January, the appell ant awoke the victim an d told her that he was going to take pictures

of her. The appellant took pictur es of the victim naked and pictures depicting the ap pellant vaginally penetrating the victi m. The appellant threatened to show the pictur es to the victim’s family if she told anyone about them. The appellant had sexual i ntercourse with the v ictim without her cons

ent on three occasions in Januar y 1996.

In March 1996, the victi m moved out of her parent’s house. She went to live with her boy

friend, Mike. Shortly

thereafter, the victim and her boyfriend moved to the victim’s parents home because they had no pl ace to go. They shared the same bed. The appellant did not like Mike because he w as married, used drugs, and “the law was hunting him.” The appellant, however, found Mike employment. In April, the v ictim reported the alleg ed rapes to the authorities and sought a protective or

der against him.
The appellant testified at trial . He admitted that he was th e only father that the victim had ever known. He admitted that he an d the victim had sexual intercourse, but he claimed that it was consensual. The appellant denied that he had sexual intercourse w ith the victim in October, but admitted that they had “foreplay.” The appellant admitted having sex w ith the victim in Dec

ember, but he claimed that it was consensual. He admitted that he had sexual intercou rse with the victim on three separate occasions in J anuary. The appellant testified that his sexual relationship with the victim grew out of a very close friendship. He testified that the victim w as “starting to look i nto sexual activity. And she made the comment a couple of times about me being handsome and that she wished she could find a boy that w as at least active and st rong and not just a pot-bell ied-4- piece of mush, which I’m not.” He testified that he was p roud that a young lady could look upon him as desirab le.
The appe llant tes tified t hat the vic tim asked him if sh e was always going to be a “fat, pudgy little kid.” He tes

tified that he took photographs of the victim nude to show her how beautiful she was, an d that things just “g ot out of hand.” He testified that he hid the pictures from his wife because “he was not really proud of them.”
Investigator William Gary Va ndiver took a statement from the appellant. Investigator Vandiv

er testified that the appellant s tated that “things wer

e done that were not right,”

that things started “out of curiosity on her part, ” and that he was “trying t

o be a good father and show her how things were d one.” The appellant stated that the victim consented to “everything that was done.”

The victim’s mother testified that she and the appellant had been mar ried thirteen years. She testified that the appellant expressed an un usual interest in being in the bathroom when the victim took a show er. Mrs. Lingenfelter t

estified that she caught the appellant masturbating at the f oot of the victim’s bed while the victim slept. She told the appellant that the pictures that he to ok of the victim looked like pornography, “photos that someone would take and look at later.” She testified that the appellant responde d “No, sir, that’s not why they were taken.” He said that he had a good reason, but never ex plained it to his wife.
The appellant challenges the s ufficiency of the evidence. H e also argues that the court should have g ranted his motion for a judgment o f acquittal at the conclusion of the state’s case. These issues are without merit. In a suf ficiency of the evidence challenge, the relevant question on appellate review is whether, after viewing the ev

idence in the light most fav orable to the prosecution, any rational trier of fact could ha ve found the essential elements of the crime or-5- crimes beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307 (1979); State v. Duncan , 698 S.W.2d 63 (Ten n. 1985); T.R.A.P. 13(e).
In Tennessee, great weig ht is given to the re sult reached by the jury in a criminal trial. A j ury verdict accr edits the testimony of the state' s witnesses and resolves all conflict

s in favor of the state. State v. Willia ms , 657 S.W.2d 405 (Tenn. 1983). Moreover, a guilty verdict replaces the presumption of innocence enjoyed at trial wi

th the presumption of guilt on appea l. State v. Grace , 493 S.W.2d 474 (Tenn. 1973). The appellant has the burden of ov ercoming the presumption of guilt. Id. On appeal, the state is entitled to the strongest legitimate view of the evidence and all reasonabl e inferences which may be drawn therefrom. State v. Cabbage , 571 S.W.2d 832 (Te nn. 1978).
The appellant essentially a rgues that the jury s hould have believed that his sexual relationsh ip with the victi m was consensual. The appella nt contends that the jury should have discredited the testimony of the victim because it is unbelievable that the vi ctim would go shopping and bowling wit h the appellant during the period of time that he was allegedly r

aping her. Whether or not the victim consented to the sex ual encounters with the appellant was a credibil ity issue for the jury to deci de. The jury chose to beli eve the victim. The stat e present ed evid ence to e

stabli sh each c

onvict ion duri ng its c

ase in c hief.
The appellant argues that the tr ial court erred in admitt ing photographs of the victim. He argues that the probative value of the photographs is substantially outweighed by the pre

judicial effect because “the v ictim testified herself.” To be admissible, the court must determine if the evidence is relevant. Th e evidence must make the existence of a fact that is of consequence to the determi nation of the action more probable or le ss probable than it woul d be without the evidenc e. Tenn. Rule Evid. 401; see State v. McCary , 922 S.W.2d 511, 51 5 (Tenn. 1996); State v. Banks , 564 S.W.2d 947 (Te nn. 1978). If relevant, the court must-6- determine whether the probative value of the photographs is substantia lly outweighed by the dang er of unfair prejudice. Tenn. Rule Evid. 403; McCary , 922 S.W.2d at 515. The se determinations and the admissibility of photographs rest in the sound discretion of the tr ial judge. McCary , 922 S.W.2d at 515. W e will not interfere with the dis cretion of the trial court unless it appears on the face of the record that the court abuse d its discretion. Id.
The appellant filed a motion in limine to prevent the state from intr oducing the photographs into evid ence. The court allowed the photographs, finding that they were “pertinent” to proving the is sues in the case. The state arg ues that the appellant waived this issue by failing to object when the photographs were introduced into evidence an d because the appellant failed to in clude a transcript of the hearing on his motion. We disagree. The record is sufficient for us to address the issue.
The pictures are relevant to the victim’s credibility which was a primary issue at trial. The pict ures corroborate the vi ctim’s testimony that she and the appellant had sexual inter course. To an extent, the photog raphs are prejudicial to the appellant. Unfair prej udice means an undue tendency to su ggest a decision on an improper basi s. Neil P. Cohen et al., Tennessee Law of Evidence § 403.5, at 153 (3d ed. 1995). The ter m includes evidence that appeals to a jury’s sy

mpathies, sense of horror, or i nstinct to punish. Id. It includes evidence that i s sensational, shocking, or repulsive. Id. The jury might be inclined to punish the appell ant for taking such lew d photographs of his young stepdaughter. We cannot conclude, howev er, that the probative v

alue of the photographs is substantially outwei ghed by th e d an ge r o

f u nf ai r p re

ju di ce . We find no abuse of discretion. See State v. Leath , No. 01C01-9511-CC-00393 (Tenn. Crim. App. at Nashv ille, Feb. 10, 1998)

.-7- The appellant argues that the trial court erred in allowing the appellant’s wife to testify that she “ caught” the appellant masturb ating at the foot of the victim’s bed while the victim was asleep. He argues that any probative value issubstantially outweighed by the unfair prejudice of the evidence. On crossexamination, the appellant’s wife testified that the appell ant and the victim had a normal relationship. The stat e sought to introduce Mrs . Lingenfelter’s testimony to show that she knew of an incident that would suggest that the appellant’s relationship with hi s stepdaughter was abnor mal. The court allowed the evidence. Relevant evidence may be excluded if its probative value is substantially outwei ghed by the danger of unfair pr ejudice. Tenn. Rule Evid. 403. Mrs. Lingenfelter’s testimony is relev

ant to issues of credibilit y, whether the appellant had sexual inter course or sexual contac t with his stepdaughter, and whether the intercourse was consensual. The evi dence is prejudicial, but its probative value is not substantially outw eighed by the danger of unfair prejudice. We find no abuse of discretion.
The judgment of the trial court i s affirmed.

_____________________________ PAUL G. SUMMERS, Ju dge
CONCUR:-8- _____________________________ JOHN H. PEAY, Judge

_____________________________ THOMAS T. W OODALL, Judge