# FILED
December 3, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT JACKSON MAY SESSION, 1997
STATE OF TENNESSEE, ) C.C.A.NO. 02C01-9603-CR-00095 ) Appellee, ) ) SHELBY COUNTY ) V. ) HON. FRED A XLEY, JUDGE ) COLLIER V. HA RRIS, ) ) (FIR ST DEGREE MURDER I N Appe llant. ) THE PE RPET RATION OF TH EFT)

FOR THE APPELLANT : FOR THE APPELLEE : A. C.WHARTON JOHN KNOX WALKUP Distri ct Public

Defender Attorney General& Reporter W. MARK WARD DEB ORAH A. TULL IS Assistant Pu blic Defende r Assistant Attorney General 147 Jefferson , Suite 900 2nd Floor, Cordel l Hull Bui lding Memphis, TN 38103 425 Fifth Avenue North Nashvill e, TN 37243 JOHN W. PIEROTTI Distri ct Attorney General EDGAR PE TERSON Assistant Distri ct Attorney General LOR RAINE CRAIG Assistant Distri ct Attorney General 201 Poplar Avenue, Ste. 301 Memphis, TN 38103 OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, J UDGE-2- 

# OPINION

The Defendant, Coll ier V. Harris, appeal s as of right from his conv iction of first degree murder committed during the perpetrat ion of theft, in viol ation of Tennessee Code Annotated sect ion 39-13-202(a)(2). The offense occur red on Novem ber 29, 1 992. De fendan t received a senten ce of life imp risonm ent.

Defen dant raise s the follow ing issue s in this app eal: (1) The evidence is insufficient to su pport his convicti on for fi rst degree murde r comm itted in the pe rpetration of theft. (2) Extension of the “felonymurde r” rule to misdemeanor theft violates his rights t

o due process and equal protecti on afforde d him by the Fourteenth Amendment of t he United States Constitut ion. (3) The trialcourt err ed in all owing the State to introduce into evi dence proofthatthevi cti m, prior to her death, c laimed that Defendant had attempted to rape her on the basis that the p roof was hea rsay, irrelevant, improper proof of other crimes, and theprejudicialeffect outweighed any pr

obative value. (4) The trialcourt e rred in allowing the State t o introduce into evi dence proofthat the Defendant had ra ped four other women, as the evidence constit uted improper proof of ot her crimes or bad acts by Defen dant. (5) The trialcourt er re d by ruli ng that in the event Defendant testified, the State could introduce i mpeachment proof by quest ioning t h e Defendant regarding t he four rapes committed byDefendant, when the Defendant had not yet been convic ted of any

charges relating to the rapes. (6) The trial co urt erred by d eclining to g rant App ellant’s req uest to instruct the jury m ore com plete ly on ho w it was to consider circumstant ial evi dence. (7) The trialcourt erred by refusi ng to instruct the jury as to the l esser included or lesser grade offenses of voluntary manslaughter and reckless homici de. (8) The trialcourt err ed by instructing the ju ry that it coul d consider proof of t he other rapes t o show Defendant’s intent and motive.-3- (9) It was error

forthe prosecutor to be all owed to argue to t he jury t hat it conside r evidenc e of other rapes to show D efenda nt’s prope nsity to commit the of

fense of rape. (10) The cumulative effect of the err

ors deprived Defendant of a fair trial.

1. SUFF ICIE NCY OF THE EVI DENCE

When an accused chall enges the suff iciency of the convi cting evi dence, the standard is whe ther, aft er revie wing th e evide nce in the ligh t mos t favora ble to the prosecut ion, any r at ional tr ier of f

act could have found the essent ial eleme nts of the crim e beyon d a reas onable doubt. Jackson v. Virginia , 443 U. S. 307, 319 (1 979). O n app eal, the State i s entitl ed to the st rongest legitimate vi ew of the evidence and all infere nces the refrom. State v. Cabbage , 571 S.W.2d 832, 8 35 (Ten n. 1 978) . Be caus e a verd ict of g uilt removes t he pr esum p tion o f innocence and replaces i t with a pr esumption of gui lt, t he accused has the burden in thi s court of illustrati ng why the evidence is insuf ficien t to support

the verdictreturned by

the tri er of fact. State v. Tug gle , 639 S.W.2d 913, 914 (Tenn. 1982); State v. Grace , 493 S.W .2d 474, 476 (Tenn. 197 3).

Questions concerning the credibil ity of wi tnesses, the weight and value to be given the ev idence, as wel l as all fact ual issues raised by the evidence , are resolved by the tr ier of fac t, not this court. State v. Pappas , 754 S.W.2d 620, 623 (Tenn. Crim. A pp.), perm . to appeal denied , id . (Tenn . 1987). Nor ma y this court reweigh or reevalu ate the ev idence
. Cabbage , 571 S.W .2d at 835
. A jury verdict
a pproved b y the tria l judge accre dits the State’s witnes ses a nd res olves a ll conflicts in fa vor of the S tate. Grace , 493 S.W.2d at 476.-4- S everal witnesse s testified du ring the S tate’s cas e-in-chief. Wa lte r Blaydes met the victi m, Peggy Sue Birkhead, i n June 1991 while sh e worked as
a cashier at

Mapco in Mill ington. As s he was a single mother and he helped her
care for her

five (5) year old son, the two became fr iends. Duri ng the two to three months prior

to the victim ’s dea th, she and B laydes bega n datin g. Both the victim and Blaydes knew Defendant; Defendant is a distant co usin to Blaydes and the victim met Defendant whil e working at Mapco. Approximately two months pri or to her death, t he victi m told Blaydes t hat Defendant was har assing her and t rying to get her to g o out

wit h hi m. Blaydes told Defe ndant “to back off.” T hen, five to six weeks pri or to her deat h, the vi ctim tol d Blaydes that Defe ndant tried to pull her pants off an d rape her.

On November 28, 1992, t he victi m was celebrati ng her birt hday. Blayde s arrivedat her apartment around 7:40 p.m. to takeher to Sonny & Cher’s, a l ocal bar, to me et som e friend s. The victim w as still dr essin g whe n he a rrived. W hile he wai ted, she told him that she had received her ATM card that day , an d h e noticed it ly ing on the table. They l eft and went t o Sonny & Cher’s and various otherbars, then r

eturned to her

home around 12:00 or 12:30 a.m. on November 29, 1992. The victi m had previously given Blaydes a key to her apartment, and he used it to unlock the back door. He stayed approximatel y twenty mi nut es , during which ti me they talked and had sex. W hen B laydes left, the vic tim wa s in bed and h e told h er he w ould c all the next morni ng to make sure she got up for work. He exited through the back d oor an d locked it . Blaydes dr ove home, arrivi ng there at ap proxima tely 1:00 a.m . At th is t ime, he was living wit h Helen Wh itley, his girlfriend o f many ye ars. W hitley was in bed wh en he a rrived.-5- When Blaydes woke up at 6:00 a. m., he tri ed to callthe victi m but got no
answer. He dressed and went to the l ocal Mapco for coffee. Bl aydes stayed at Mapco for approxima tely ten ( 10) minutes vi sitingwith friends, and t hen left f or the victim’s ho me to make sure she was up for work. On his way, he not iced three (3) patrol cars just down the street . Enteri ng through the ba ck door using h is key to unl ock it, h e notic ed tha t no ligh ts were on. Bla ydes s aw the victim lying on the floor, wit h t he body parti ally i n the bathroom and par tially in a hallway. He checked her nude body for a pul se. After not feeli ng any pulse and seeing a telephone cor d wrapped aro und her neck, he l eft and ran down t he street to getthe poli ce. Blaydes t old Offi cerWhite, “I t hink thi s young lady ki lled herself.” The two returned to the victim ’s hom e whe re Offic er W hite ag ain checked fora pulse. Blaydes looke d in her bedro om and noticed that there w ere no linens on t he bed and the matt ress wa s bare. O fficer W hite told him not to touch anything. When the paramedics arri ved, they entered thr ough the front door, but Bla ydes d id not see a nyone u nlock it. Later tha t mornin g, he dro ve to the police statio n where he gave a statem ent. Blaydes was arr ested that day for the victim’s murde r, but charg es were eventua lly dismisse d again st him.

Pandora Whitley resi ded across the streetfrom Hel en Whit ley . On November 2 8, 1992, Blayd es left Wh itley’s home to pick u p the victim for he r birthday party. D uring th e early morn ing ho urs of N ovem ber 29 , at app roxim ately 1:00 or 1:30 a .m., Pandora Whitleywas up fixi ng formula for her baby when she heard a car pul l up. Thr ough her ki tchen wi ndow, she saw Blaydesget ou t of his van and go into H elen W hitley’s hom e.-6- Helen Wh itley, who ha d marrie d Blayde s by the tim e of t h e trial , testified thatshe heard Blaydes come home a little af ter 1:00 a. m. on November 29, 1992. When she left around 4:00 a.m. to go to work, Blaydes was sleeping.

Officer Ste ven White, patrolman with the Mill ington Poli ce Department, was
on East NationalStreet answer ing a d omest ic viol ence call on November 29, 1992, at app roxim ately 6:3 0 a.m . As he was c omin g bac k out to his car, Blaydes
ran up to him sayi ng, “I think th is girl done k illed herse lf.” Blaydes, w hom W hite knew to be usuall y calm and quiet , was very excited and s hou ting. In fact, Blaydes was so upset that he could not giv e White the vict im’s apart ment numbe r. White followed Bl aydes back to t he apartment, and Bl aydes pointed out where herbody wa s located
. White told Blaydes not to touch anything, and then checked for the v ictim’s pulse. The victi m had a telephone cord wr apped around her neck and her body and was s pattered wi th blood. White felt no pul se and noticed that her sk in was cool. As the bodywas in a stif fened condit ion with t he blood sett ling to the l ower areas of her body, he believed the victim was d ead
. Wh ite noticed t he front door was closed and was surprised when thefiremen
came through it

because he thou ght it was supposed to be loc ked. After other police officers arrive d, W hite took B laydes o ut to his squad car and later foll owed him to the pol ice stat ion.

Lieutenant

Robert Fredres, a fireman with the M illington Fire D epartm ent,
was called to 7708 East Nationalon November 29 , 1992. He enter ed through the front door

which was not l ocked. Since t he victi m was already dead, he was told to leave as his as sistance was no t necess ary.-7- Sergeant Tabrina Estes, assigned to the Detective Divisi on o f the Milli ngton Police D epartm ent, w as called to the vi ctim’s home to i nvestigate a homicide. Wh ile there, sh e photo gr aphed the evide nce an d the ap artmen t. During her invest igation, she noted that portions of an ink p en and its spring were stuck to the vi ctim’s body . The vi cti m had clothi ng lying underneath her. She found a knife stained with blo od an d bloo d spa tters on the wa ll, along wit h several it ems of cloth ing sta ined b y blood and fe ces. T he victim ’s telephone wasfound undern eath a wet sheetin the bat hroom sink. A bent knife was found undern eath the chair i n the hall way, and plast ic pieces of that kni fe were found undern eath the victi m . A bent fork was also found i n a brown box in the hallway. She was unab le to get any f ingerpri nts from the s cene. On the vict im’s tabl e, she found
an envelope for a Money Belt ATM card and a checkbook register, wit h a balance of $32.16. During furt her invest igation at the Fir st Tennessee Bank, shefound
a receipt f rom the ATM booth in t he trash fo r $30.0 0 withd rawn fr om th e victim ’s checking account on November 29, 199 2. The victi m’s ATM card was found by
an unide ntified b ank c ustom er in the front lawn at theFirst Tennessee Bank, and that card was turned over to Sergeant Estes.

Dr. Vilette Hnilica, the medical examinerforShelby County, performed the autopsy on the victim. H er me dic al opini on wa s that th e victim died o f multip le types of i njuries, any one of whic h could have caused her death. None of t he injuri es were old er than a few hou rs, and all occ urred while th e victim was s till alive. Dr. Hnilicasuspected that strangulat ion was the f irst i njury and t he other injuri es occu rred la ter, poss ibly due to a stru ggle. S he tes tified tha t the victim suffered from stra ngulation with a fracture of the hyoi d bone, and such fr actures only occur when tremendous manual force compresses unde rneath the m andib le-8-

and cuts off the blood su pply t o the brain. A hyoid bone frac ture and strangulat ion are “just a part of each other.”

There were many bruis es, abrasi ons and scrapes around t he victi m’s neck, chi n an d upper t runk that r elated to the strangulat ion effort . There were no l igature marks on the v ictim’s body, indicat ing that her stra ngulation was no t c aused by a hanging. Dr. Hnili ca explained that loss o f conscio usnes s from s trangula ti on occurs betwee n thirty (30) seconds and four (4) minutes. When this occurs, a perso n loses h er ability to control the ir bowels a nd blad der. Evidence of fecal stai ning was found around the victi m’s anus, but, as the vict im was nude, no evi dence of uri ne staini ng was found.

The victi m’s liver

was smashed, or actual ly burst , at four (4) differ

ent sites. A massive force with a bl unt object was pr obably appli ed from either the front

or the back to smash the liver. Three (3)pints of fr ee blood was f ound w ithin t he body, ind icating the liver had “ble d out.”

There we re twelve (12 ) individual sta b woun ds to the vi ctim’ s body. Two (2) of the stab wounds went straight through the vict im’s h eart. Fr om her examination, Dr. Hnili ca determined t hat all of the sta b wounds except for one (1)
were cause d by a thre e (3) to fou r (4) inch kn ife blade. These stabbings we re chara cteristic of a si ngle-ed ge blade with the s harp edge bei ng down at theti me of the stabbi ng. One (1) stab wound was differ ent in that it was rounded, poss ibly caused by a pen. The vi ctim lacked def ensive wounds on her hands and forearms, which indica ted tha t she w as no t actively fighting or defe nding herse lf with her han ds and that her bo dy was re latively stationa ry at the ti me of the stabbing s.-9- There was a large bruise to the v ictim’s s ternum area, an appar ent blunt force injury

caused by something such as a knee, hand, boar d or brick. Four (4)
sm all puncture i njuries wer e found on the vi ctim’s back. These were tiny and round, meas uri ng on ly one- hal f ( 1⁄2) i nch or l ess , an d re semb led the edge of
s om ething sharp enterin g into th e skin. She n oticed three (3 ) very sp ecific patternso n the victi m’s forehead, cheek, and the right side of her chest undern eath her breast. Usually those patterned contusi ons ma tch to some object which caused them, but t he autopsy di d no t reveal what object matched these contusions. During the autopsy, Dr. Hnil ica also took acom plete s exual a ssau lt kit from th e vi cti m.

Gail Delancey, manager at First Tennessee Bank, Milli ngton, test ifiedthat the victi m’s ATM card was brought i n by a customer who found it outside the bank in the gras s. After receivi ng the card, Delancey found out that it was the card of the “gi rl who had been murdered. ” She called the police, an d gave the card to Serge ant Este s. W hile Estes was at the bank inve stigating, t hey went through the trash an d found an ATM receipt for a wit hdrawal of $30. 00 from the victim’s checking account on November 29, 1992. Delancey also gave the police the video f rom the ATM video camera.

Pat Smith, the m anager of elec tronic banking a t the bank, exp lained th e ATM trans actio n recor d of t he vi cti m’s ATM car d for November

29, 199 7. At 5:07:07 a.m., there was an inva lid requ est to w ithdraw funds from th e victim ’s savings account

in the amount of

$36.00. At 5: 07:44 a.m., there was a second request fr

om the same account for t he amount of $32.00. Smith explai ned that reques ts for wit hdrawals are only vali d if i n denomination s o f ten (10) . Various-10-

otherattem p ts were mad e acc ording to the A TM tra nsac tion rec ord, un til a transacti on was c omp leted a t 5:09:4 6 a.m . by a with drawa l from th e victim ’s checking account

in the amount of

$30.00.

Sheila Bramlitt, t he loss prevention off ice r in theCorpo rate Sec urity departmentof First

Tennessee Bank, showed the v ideotape fr om the ATM booth to officer

s of the Mil lington Police Department. Bramlitt noted t hat the Defendant
was the one performing the withdr awal from the v ictim’ s account on thetape, and thathe was standing to the left of the boot h where a person woul d not norm ally stand to complete a transact ion.

Paulette Sutton, supervis or of the fore nsic sero logy lab at th e Unive rsity of Tennessee , rece ived a bed sheet from the vi ctim’s home for analysis . It had yellowi sh-tan stains. Several of the stains tested positi ve for semen and bl ood. W hile none of thestains tested posit ive for urine, t he sheet was wet when i t was found, and if

theshe et h ad be come satura ted en ough with wa ter, then the sta in might not test posit ively for uri ne.
Hoyt Eugene Philli ps, a forens ic scient ist wit h the Tennessee Bur eau of Investi gations(hereinaf ter “TBI”) , testified that he i s a latent fingerprint examin er. In his examinat ion of thetelephone, fork, knives, pen, beer can and envelope, he found a palm print

inconsistent with eitherBlaydes or t he Defendant and ashoe print on the envelop e for the A TM ca rd.

Linda Littlej ohn, also a forensic scienti st with t he TBI, special izes in shoe trackco mpar isons and tr ace evidence. Upon examination of the vict im’s robe,-11-

she determ ined th at the cuts i n the fabri c were inconsi stent wit h the serrated edges of a knife rec overed fro m the vic tim’s apa rtment. When Littlejohn tested Defe ndan t’s shoes, Nike Air Jordans, they matched theshoe print found on the ATM envelop e.

Same ra Zavaro, forensic sci entistwith th e TBI a nd sero logy spe cialist, examined the sexual assault ki t taken fr om the victi m during the autopsy. Wh ile he found the pres ence of semen in the victi m’s saliva and vag ina, the a m ount
was s o small as to make i dentifi cation i mpossible. Human blood staining was found on the clippi ngs from the vi ctim’s l eft hand fi ngernails. Human blood was also found on t he telephone, fork and bent knife.

Anne Montgomery, theAssociate Dir ector of t he Forensics Depart ment for GenTest Labora tories, p erfor med the DN A ana lysis on the se xual as sault k it taken from the victim and the susp ect kits take n from B laydes a nd the D efenda nt. M ontgom ery testified that DNA for eign to th e victi m was found underne ath th e victim’s fingernai ls, and t hat DNA was consistent wi th the Defendant ’s and inconsistent with Blaydes. Blaydes could have been the sperm donor for the
semen stainsfound on the victi m’s sheets, and the vic tim was the match f

or the blood stains on the sh eet. The frequ ency of the particu lar DNA p rofile which match ed the D efenda nt’s DN A is 1 ou t of 426.

Luetric ia Pringle, au nt of the D efenda nt and a distant co usin of Bla ydes, testif ied that she wascalled by Defendant on December 7, 1993 to come to the office of the Distric t Attorney G eneral. The De fendant was th ere on unrelated-12-

charges. When she arrived, the Defendant told her t hat he was “fix ing to si gn a confession saying that [he ] killed th is girl.” Ms . Pring le spe cifically testified that, I can remember him [Defendant]saying somethi ng about the girl b it his penis . And w hen s he bit h is pen is, he ju st wen t wild and started

-- if I r emember the stuff

he was saying, thathe started stabb ing her. And he told m e som eth ing abo ut s he stab bed him in his han d. I don’t know wheth er it was the righ t or the l eft hand . . . I say - - I can remember saying, ‘C ollier, why you didn’t go t o the doctor so you could have something i f she stabbed you in y our hand?’ Or i f she bit you, why you di dn’t go to the doc tor so you could ha ve something. He said, I can remember something -- I can’t remember exactly what it was

about, They

got me, or somethi ng, so I’m going to go ah ead an d sign it. W hile she cou ld n ot r eme mber d iscu ssin g wit h him w hat h e did wit h theATM card at tha t time, Pring le did talk ab out it with him later.
Shelley Totherow, formercoworker of t he victi m at Mapco, testified that the victim came into theMapco early i n November 1992 looking t ired, upset and not well-gr oomed. The vict i m no longe r worke d at Ma pco, b ut cam e by to v isit Totherow. Totherow stated that thevictim alwa ys looked well when she we nt out, but on that day she was wearing no makeup. Al so, the victi m was wearing baggy clothes, which was not theway she typi cally dr essed. When Totherow asked her if something was wrong, she sai d that the n ight befor e she was outwith a group of peop le and tha t Defend ant was in that grou p. Defe ndan t appa rently had left something at her house, an d when the group took her home, the Defendant walked in after h er. The vict im said that Defendant “had her

up against t he refri gerator

or a wall an d was trying to force h imse lf on he r.” The victim planned to tell Blayde s that De fendan t tried to rape her.

Four young w omen testified as to rapes th ey were subjecte d to by th e Defen dant. Such testi mony was subm itted for p urpos es of p roving Defe ndan t’s-13-

identity, motive, and/

or intent. Anglia Phil lips, a thirt y (30) year

old female, lives in Milli ngton and knows the Defendant. On October 11, 1993, she went

to the Mapco for a snack. She saw Defen dant while at the Mapco, and, as it was raining, she acc epte d Defen dant’s of fer for a ride home. Defendant instead drove Phillips to an open field, nearly a quarter of a mile fr

om the Mapco. When she aske d whe re De fenda nt was going , he rep lied “jus t rid e” and s ped up. Philli ps testified that it was too fast for her to jump out, and she felt like he“was fixi ng to do something any way.” When Defendant pull ed over at t he field , he reached across her and opened her door. Defendant

said he was “go ing to teach these bi tches a less on.” When he came around to the passenger’s side of the car, he snatched her out and gr abbed he r by the neck. He began to have sex with her from behin d, and then s aid “I thin k this co ndom has b ust.” Sh e was able to break awayfrom him at t hat point and run across t he street. Philli ps explained thathis arm was around her neck during the rape and that i f she had not let him do what he wanted she pro bably wo uld have passe d out be cause it w as too much pressu re.
Ange la Arnold, who li ved in military base housi ng in Mill ington, testifi ed that
on November 21, 1993, she saw t he Defendant at a friend’ s home. She already knew the Defendant as a friend ofher husband. That ev ening on her way to her car, the Defendant asked for a ri de home. Arnold agree d and let Defe ndant drive
as she h ad be en drin king. O n their way, Arnold state d her conce rn for a friend whose car she noti ced was not at home. Defendant said he pr obably kne w where her fr iend was an d wo u ld drive her there. Defendant droveto “the t ree” in Edmu nd Orgill Park , but n o one was there. The two got out of the car and-14-

listen ed to the radio. Defendant suddenly tried to kiss Arnol d, and she ref used. Arnold to ld him sh e wante d to go ho me an d tried to op en her c ar door.

Defendant closed the door and then grabbed her around the neck. She blacked out when she could no l onger breathe or see. When Arnold awoke from unconsciousness, Defe ndan t was je rkin g her pan ts dow n beh ind the car wh ile she was on her stomach. When she tri ed to get away, he grabbed her arou nd her neck. She saw red and black and then slipped back into unconsciousness. When she woke u p this t ime, Defendant had uns napped her bodysuit and was having intercourse with he r. Whe n he finally stopped , he said “Y ou wasn’t any good ,” and to ld her to put he r clothe s bac k on. A rnold d resse d and got ba ck in the car. He then pour ed alcohol on her

vaginaand made her dri nk s ome alcoh ol. De fe ndant drove to a st ore nearby and went

inside, but Arnold was i n such a state of shock that

she co uld not run o r scream for hel p. When Defendant returned, he drove around and t hen pulled ove r in a fi eld oftre es. Heasked her “if [she] wan ted to die.” Remembering how he h ad choked her earl ier and fearing thathe would choke her to deat h, she removed her cl othes upon his demand. Defendant raped her twice, wearing a condom both times. Wh en Ar nold to ld him she c ould not do it anymore, he drove her ar ound and then threatened her that “he didn’t want to see the co ps kn ockin g on h is doo r.” W hen A rnold got home, she told her

husband what had happened and he cal led the pol ice.

Dan ielle Fisher

testified that s he resided i n Milli ngton on August 11, 1993. On that date, s he walk ed to the milita ry base to see her boyfri end. Returni ng hom e that evening, she noticed som eone following a pproximate ly fifteen (1 5) fee t b ehind her . She later identified this

man as Defendant in a pol ice li neup.-15-

Defendant grabbed her and put his arms around her throat and mouth, then took her beh ind a hous e in that neighborhood. When she told him he was choking her, he let g o and told he r to take off her c lothes . She re move d the b ottom half of her clothes, and Defenda nt forc e d her to get on her hands and knees. Defendant rap ed he r f rom b ehind, then ejaculated on her buttoc ks and the ground. Followingthe rape, he t ook herto the b ack o f the ho use a nd told her to take off the rest of her clothes. H e used an outside hose to wet down h er shirt and then direc ted her to wipe he rself off. Afterw ards, De fendan t t ook her back to the area of t he rape and to ld her to put he r clothe s in a pile, then to walk back toward the di rection f rom which they had arrived. Defendant vanished and she ran to a house wheresomeone let her cal l the pol ice.

Sara Johnson lived in Mill ington on June 14, 1991. She knew Defendant
as a friend of

a man she was dating . On June 1 4, she was walki ng when Defendant came by and asked if shewanted a ride. After she agr eed, he went to a sto r e for beer and t hen drove to Ri chardson Landing i n nearby Tipton County. Defe ndant pul led over so t hat they coul d go to the bat hroom. After Johnson finis hed and was pulli ng up her pants, Defendant told he r “No, p ull your pants down.” Johnson sai d she knew Defendant was not joking because of the
w a y he said it and the w ay he was a cting. Wh en she turne d to walk awa y, Defendant came up behin d her a nd pu t his arms around her neck. Her eyesight started going blackand closing i n. When she woke up, she was in t he back seat with her pants of

f, ly ing on her ba ck. De fendant was on top of her havi ng intercour

se. When he finished, he got out while she dr

essed. Johnson th ought he would kil l her, but she stil l decli ned when Defend ant deman ded mo re sex. Defendant replied t hat “[she]knew how mean he could get, ” and raped her agai n.-16-

Defendant drove her back i nto Mill ington, saying “You’re going to c all the cop s.” Johnson denied that

she would go to t he police.
The lastwitness fo r the State was Marjori e Featherstone, a sergeant i n the Detective Bureau of theShelby County Sher iff’ s Department. On December 9, 1993, the De fenda nt ask ed to s peak with he r while he was a lready in custody. Defendant told her t hat he got i nto an argument wi th the victi m, she pulled a knife
on him and cut his finger. He then took theknife aw ay from her an d killed her. He stated that he could not r emember how he killed her because it had been so long ago.
The Defe ndan t offered no pro of at trial.

Def endant was c onvicte d of first d egree murd er in the perpe tratio n of a theft. At the ti me the o ffe nse was committed, f irst degr ee murder could be committed by a “reckl ess kill ing of anot her committed i n the perpetr ation of, or attemptto perpetr

ate any fi rst degree murder , arson, r ape, robbery , bu rgl ary, theft , kidnappi ng or aircr aft pir acy.” Tenn. Code Ann. § 39-13-202(a) (2)(Supp. 1990) (emphasis added ) . A perso n com mits theft o f property if, with intent to deprive the owner

of propert

y, the per

son “knowingl y obtains or exercisescontrol
overthe property withou t the owner’s effective consent.” Tenn. Code Ann. § 39- 14-103. In Farm er v. State , 201 Ten n. 10 7, 296 S.W.2d 879, 883 (1956) , the Supr eme Court stated thatto sus tain a convict ion for “ felony” murder, the murder must have been done in pur suance of the unl awful act and must not bemere ly
c ollat eral to it. The “killing must have had an int imate relation and close connection with the f

elony and not besep ara te, dist inct, an d independent f rom it.” Id . (citations om itted).-17- The evidence i n the record i ndicatesthat the victim’s ATM card was lying
on the kitchen table in t he victi m’s apartment when Blaydes arr ived on November 28, 1992. The vict im told Blay des that i t had arri ved that day in the ma il. There is no ev iden ce th at t he ATM card was removed while Blaydes a nd the victim we re out that evening, nor p rior to Blayd es’ departure f rom the vict im’s apart ment around 12:30 a.m. on November 29. Fro m the record , a reas onab le trier of fact could find that

Defendant enter

ed the victim’s apartm ent ea rly in the morning on November 29 and murdered her, first strangli ng her untilshe lost cont rol of her bowe ls and bladder, then stabbi ng her twelve (12) ti mes and crushing her liver. Defendant voluntarily admit ted kil ling thevicti m to two indi viduals, his aunt and a police o fficer.

When the victim w as foun d, th e ATM c ard was m issing. The A TM card
was found in t he grass ou ts ide a branch of the vict im’s bank, and a receipt showing a withdrawalof thir ty doll ars ($30.00)from the victi m’s checking account
w as fou nd in a tras h can. Defendant’ s shoe print was found on the envelope containi ng the ATM card at the victim ’s apartm ent, and a videotapeshown to the jury identified Defendant as t he one using theATM ca rd to withdraw thirty dollars ($30.00 ) from the victim’s acc ount on Novem ber 29, 1 992.

W hile t he proof in t his regard was largely circumstant ial, t he jury acted within its prerog ative in returning a verdict of g uilt. See , e.g. , State v . Matt hews , 805 S.W.2d 776, 779-80 (Tenn. Crim. App . 1990). A crime may be establ ished by the use of circ umsta ntial eviden ce. State v. Tharpe , 726 S.W.2d 896, 899-900 (Tenn. 1987). Upon rev iew, thi s court fi nds thata ration al trier of fa ct cou ld have concluded thatthe De fenda nt killed the victim and did s o in furthera nce of a th eft-18-

on the basis of

this ci rcumstantialevide nce. Be fore the money coul d be withdr awn from the accou nt, the theft of the victi m’s ATM card, which the victim ha d lying on a ta ble in her a partme nt, was ne cessar y. See State v . Wil li ams , C.C.A. No. 02C01-92 09-CR-00220, slip o p. at 11 -12 , Sh elby Cou nty (Ten n. C ri m. App., at Ja ckson , Oct . 12, 1994) (No Ru le 11 applicati on filed). The conduct causing the dea th of the victim must b e done in furth e rance of the underlyi ng cri me and the death must be in consequence of it. Id. , citing Comm onwealth v. Redline , 1 37 A .2d 472, 476 (195 8). The evide nce is suff icient to support t he convicti on beyon d a rea sona ble doubt that Defendant kil led the vi ctim durin g the perpetra tion of a the ft. This issu e is withou t merit.

2. C ONSTITUTI ONALITY OF “ MISDEMEANOR MURDER ”

Defendant argues that the extensi on of the “felony” murd er rule to his convicti on of fir

st degree murder i n the perpetrat ion of misdemeanor theft v iolates the due process and equal pr otection c lauses o f the Fou rteenth Amendment of the Unite d States Constitut ion. Our Supreme Court recently

upheld the constitution ality of this statu te. State v. Walker , 893 S.W.2d 429 (Tenn. 199 5). W hile Defendant chall enges the issue on a s lightl y di fferent basis d ue to h is convicti on of first

degree murder in t he perpetrat ion of a misdemeanor t heft, t he result is the same . The legislative intent of the statute is to be ascertai ned from the natural and ordinary meaning ofthe langu age us ed. Carson Creek Vacation Resorts, Inc. v. State , 865 S.W .2d 1, 2 (T enn. 19 93); National Gas Distributor s, Inc. v. State , 804 S.W.2d 66 (Tenn. 1991). The language of the statute is such thatfirst degree murde r is “[a] reckles s killing of an other co mm itt ed in the perpetrat ion of, or at

tempt to perpetr

ate any . . . theft

. . .” Tenn. Code Ann. § 39--19-

13-202(a)(2 ). Defendant asserts that because t he amount stolen wasonly thirty dollars ($30.0 0), the th eft can not res ult in a felony murder convicti on. The clear and plain meaning of the language i n the stat ute is t hat a reckl ess kill ing committed in the pe rpetrati on of any theft is considered first deg ree murd er, regardless of the monetary value of the propert y which is the subject

of the theft. W hile the term “felony m urder” has long been a term used to describe the statute in question, we note that the term “felonymurder” does not appe ar in thecurrent version of th e Cod e. See Tenn. Code Ann. § 39-13-202. This issue i s without merit.

3. H EARSAY EVI DENCE OF D EFENDANT ’ S ATTEMPTE D RAPE OF V ICTIM

Defendant argues the t rial cour t erred i n admitti ng hearsay evi dence of victim’s clai ms that De fendant attempted to ra pe her prior to he r murder. Specifically, Defen dant arg ues tha t the eviden ce was irrelevant, un duly prejudici al, and th e state of mind excepti on for hearsay was inappli cable.
Blaydes testified that the victim told hi m the Defendant had been haras sing her and, on one oc casion, trie d to pull he r pants off and rape her. Ms. Totherow testif ied that the victim came by her store in early November 1992 and she looked like she had not slept . When Totherow aske d the vic tim if anyt hing was wrong, the victim told her

that Defendant

had foll owed her into her home and pushed her against the wall where he attemptedto rape her. On both occasions, Defendant objected on the basis of hearsay. The t rial cour t ruled such testim ony ad miss ible under the state of mind except ion to thehearsay rul e.-20- Rule 803(3) of t he Tennes see Rules of Evidence est ablishes t he “Then Existi ng Ment al, Em otiona l, or PhysicalCondition” exception t

o the hearsay

rule: A statement of

the decla rant’s then existing sta te of mind, emoti on, sensation, or physical conditi on . . . b ut not inc luding a statement of memory or belief

to prove t he fact remembered or believed unless it relates to th e execu tion, revoca ti on, i dentifi cation, or terms of decla rant’s w ill. Only the declar

ant’s state of mind may be pr oven b y this hear

say exception. See Advisory Commissi on Com men ts to Ru le 803(3), Tenn. R. Evid. At trial, the State relied upo n the cas e of State v. Cravens , 764 S.W.2d 7 54 (Tenn. 1989 )(Tes timon y that vic tim m ade s tatem ent im plicatin g hi s death was adm issible to sho w state of min d of victim , his fear and apprehens ion of deat h, in view of cl aim of defendant that vi ctim was aggressor and t ha t homicide was justifiable.). Defenda nt assert s in his brief tha t Cravens is not app licable, but, rather, the case of State v. S mith , 868 S.W .2d 561 (Tenn . 1993), cert
. denied , 513 U.S. 96 0 (1994 ), is contr olling . (Harmless er ror to admit statements of victi m’s fear of defendant under state of min d hearsay except ion as not directly probative on issue of whether defendant committed murder.) I n this c as e, the State sought to prove t he Defendant guilty of ei ther premeditated and de liberate first degree murder, f irst degr ee murder in the pe rpetrat ion of rape, or first degree murde r in the perp etration of th eft. To prove rape, t he victi m’s state of mind as to her fear o f Defend ant was relevant to th e issue o f consen t. Defense counsel sought to prove t hrough cross-ex amination t hat the vi ctim consented to sex and thatthe doo r to her ap artmen t was no t locked. Evidence of t he prior attempted rape wa s proba tive to the theory of the State’s case-i n-chief. Clearly, the statem ents of the vic ti m to Blaydes and Tother ow fall within thi s hearsay exception.-21- Nevertheless, given the f act that t he jury found the Defendant gui lty of murder in the perpetrati on of a theft r ather than i n the perpetr ation of a rape, any error by the trialcourt in admitti ng this testi mony was harm less. See State v. How ell , No. 03C01-9406-CR-00203, Knox Cou nt y (Tenn. Crim. App., at Knoxville, F eb. 12, 19 96), perm . to appeal denied (Tenn. 199 6).

4. S PECIFIC ACT

S OF MISCONDUCT

Defendant argue s the tria l court e rred in pe rmitting fou r wome n to testify regarding rapes co mm itted by the D efenda nt. The tria l court adm itt ed this evidence on the limited ba sis of the crimes’ un iqueness a nd “substan tial identity” to the crime for which D efenda nt was o n trial. Rule 4 04(b) of th e Ten nessee Rules of Evidence provides as fol lows: OtherCrimes, Wrongs, or Acts - Evidence of ot her crimes, wrongs or acts is not

admissible t

o prove thechara cter of a perso n in order to show action in c onformity with the ch aracter tra it. It may, however, be ad mis si ble for other purposes. The conditions which must be satisf ied before al lowing such ev idence are: (1) T he court upon requ est must hold a hearing outsi de the jury’ s presence; (2) The court must determine that a material issue exi sts other t han conduct conforming with the character trait and mustupon request state on the record t he material issue, t he ruling, and the reasons for admitting the evidence; and (3) The cou rt mus t exclud e the e videnc e if its pro bative v alue is outweighed by t he danger of unfa ir prej udice. When evidence that

defendant committed anothe r cri me is offered as p roof of his ident ity as t he perpetrator of the crime in questi on, the “modus operandi of the other crime and of thecrime on trialmust be substanti ally i dentical and must be so uniqu e that p roof tha t the de fenda nt com mitted the oth er offen se fairly-22-

tends to establ ish that he also comm itted the offe nse with w hich he is charge d.” Bunch v. State , 605 S.W.2d 227, 230 (Tenn. 1980). “To be relevant and, therefor e, admissible, it is not nec essary that the oth er crime be ide ntical in every detail to the o ffense on trial; it is suffic ient if

evidence of the other crime su pports the inference that t he perpetrator of i t, shown to be the defendant, i s t he same person wh o comm itted the offense on trial.” Id . at 231.

In the case sub judice , the trial court held a hearing outs ide the presence of the jury

and determine d th at the State was relyi ng on identi ty as a basi s for admissibility. Identi ty had become an issue during voi r dire and ope ning statements. The trialcourt als o listed motive, i ntent, and abs ence of mistake or fact as justification for adm issibility. In describing the uni queness of the rapes, the trialcourt stated as fol lows: T he Defen dant go t these ind ividuals, the se wom en alon e. The y happened in the area of o ur county, t he Milli ngton area. He was either a friend or

had common friends wit h all of these vic

tims except one. Allof t hem k new h im, as in the Peggy Bi rkhead matter. The choke-holds, from beh ind, ch oking the victim s in t o unconsciousness. And in one occasi on, the vict im was coming to, finds herself be hind her car , he beg ins to cho ke her into unconsciousness again. From what the Cour t’s experience i s, and from what the Court’ s heard on the Peggy Birkhead matter , she had come to mo re t han o nce, I s ugge st. And a lso cl eani ng upthecri me scene, as in the crime scen e at Pe ggy B irkhea d, as in t he victim who was raped in the b ack yard of t he apartments. Enough. The re’s certainly e nough for the Co urt to allow th e prose cution to put these wi tnesses on. Not only were there unique characteristics i n the modus operandi of the rapes, but all four women posit ively identified the Defendant as the man who had raped them. In addition to the simil ariti es listed by the trial court , all of the women raped were young, between the ages of eighteen (18) and thirt y (30), an d all of the offens es oc curred during the eve ning h ours in an iso lated lo catio n. Th e-23-

victims’ descript ions o f the acts committed by t he Defendant were si milar, and though there a re som e differe nces in the allegati ons, the simil ariti es outweigh t he differences. See State v. McKnight , 900 S.W.2d 36, 52 (Tenn. Crim. App. 1994).

Even if it were error to admit suc h testimony, any error would be harmless
as Defe ndan t was n ot con victed o f first deg ree m urder in the perpetr ation of rape of the victim . This issu e is withou t merit.

5. I MPEACHMENT BY PRIOR BAD ACTS

Defendant argues th e trialcourt erre d in ruling tha t if Defend ant were to testify, he could be impeached by evidence that he raped the four women. The trialcou r t based its ruling on Rule 608 of the Tennessee Rules of Evi dence. W hile Defen dant arg ued tha t the eviden ce wou ld be irreleva nt and p rejudicial, t h e trialcourt stated: W ell, it would, bu t I don’t kno w of any e xcepti on to t he rule that would prevent i t. It

falls within t he statutor

y defini tion. If the State wishes to pursu e it, I will allow the S tate to do it. The State fol lowed the proper notice pro cedures to t he Defendant and the trialcourt helda hearing on t he conduct’s pr obative value on cred ibility versus its prejudici al effect. See Tenn. R. Evid. 608(b)(3) . H owever, thi s evidence was inadm issible as it does not relate to the Defendant’ s character for tr uthfulness or untruthfulness. Our court has pr eviously held that

specifi c instances of sexual conduct are not probat ive of t ruthful ness or untrut hfulne ss. Sta te v. Ford , 861 S.W.2d 846, 84 9 (Ten n. Crim. A pp. 199 2); State v. Jackson , 697 S.W.2d 366, 371 (Tenn . Crim. A pp. 198 5). The Adviso ry Com miss ion Co mm ent to R ule 608 states: “To the extent

that State v. Caruthers , 676 S.W.2d 935 (Tenn. 1984), can-24-

be construed as al lowing cross-examinat ion abouta prior act of rape to i mpeach, the proposa l [rule] would chang e that result.”
Although the tri al court’ s ruling was in error, we find that this error di d not undu ly prejudice the Defe ndant. A s the four women had al ready test ified regarding the prior acts of rape, the impeachment evidence of these sa me ac ts would not have fur

ther inf luenced the j ury to t he Defen dan t’s detriment. After consideri ng the entir e record in t he case sub judice , we findt his error was harmle ss. Ten n. R. Crim . P. 52(a).

6. JURY INSTRUCTI ONS ON CIRCUMSTANTIAL EVIDENCE

Defendant argues the t rial cour t erred in refusi ng to inst ruct thejury “more completely” on circumstant ial eviden ce. W hile such request was r efused by the trialjudge, the request was never submitted in writ ing as requi red by Rule 30 of the Tenn essee Rules o f Crimina l Proced ure. Abs ent a written reques t, a tri al court’s refusal to g ive a spec ial instruction is not error. State v. Mackey , 638 S.W .2d 830, 836 (Tenn. Crim . App. 1982 ).

Defendant argues that the S tate ’s case was prove n solely by circumstant ial evi dence, and that fa ilure to give the i nstructi on was reversi ble error . The Defendant requested the trialcourt to c harge the jur y that bef

ore an accused can be convictedof a cri minal offense based solel y on circumstantial evidence, the “facts and circum stances m ust . . . exclude every o t her rea sona ble hyp othes is
save the gu ilt of the d efend ant.” A tria l court h as a du ty to give a co mplete charge of the law a pplicable to the facts of the cas e. State v. Thompson , 519-25-

S.W.2d 789, 792 ( Tenn. 197 5). When all the pr oof is ci rcumstantial , the trial court has a duty to charge the jury as to the l aw of weighingcircumstant ial evidence even if suc h an instru ction is not r eques ted. Id . However, when t he proofin a case consi sts ofboth direct and cir cumstantial evidence an instruc tion
on the law for weighing sol ely circu mst antial p roof must be gi ven only i f the defendantreques ts it. Monts v . State , 214 Tenn. 171, 379 S.W.2d 34, 40 (1964 ).

The proof in this case consists of both di rect and ci rcumstantialevidence. The Defen dant’s sta temen ts to his aunt and a pol ice offi cerare direct evi dence of his gu ilt . As the proof adduced at trialwas both direct and cir cumstantial , the trialcourt did not com mit reversible error by failing to ins tru ct the jury “more completely” on circums tantial evide nce. State v. Teague , 680 S.W.2d 785, 790 (Tenn. 1984), cert
. denied , 493 U.S. 874 (19 89); Thompson , 519 S.W.2d at 792. This issu e has n o merit.

7. L ESSER GRADES/ LESSER INCLUDED OFFENSES

Defendant argues that the tri al court erred by fai ling to instruct the jury on the lesser included/l esse r grade offe nses of voluntary manslaughter and reckl ess homicide. The offense for which Defendant was convi cted occurred in November 1992. Reckless homicide did not become a criminal offenseuntil 1993. Tenn. Code Ann. § 39-13-215, enac ted by Publi c Acts of 1993, ch. 306, § 2. As such, Defendant could not have been convicted of an offense which did not exist at the ti me of his cr iminal conduct . Therefore, there was noerror committed by the tri al court in r

efusing to charge the j ury regardi ng reckless homic ide.-26- A trial court

is not required to instruct th e jury on lesser offens es in circumstanceswhere the evid ence in the re cord w ould not supp ort a convicti on for the lesse r offense

. State v. T rusty , 919 S.W.2d 305, 311 (Tenn. 19 9 6) ; Johnson v. State , 531 S.W.2d 558 (Ten n. 1975); Owen v. State , 188 Tenn. 459, 221 S.W .2d 515 (1949); Powe rs v. State , 117 Ten n. 363, 97 S.W . 815 (1906).
Voluntary manslaughter i s defined as the “ intenti onal or knowing kill ing of another in a state of passion produced by adequ ate provocati on suffic ient to lead
a reasonable pers on to act i n an irrational m anner.” T enn. C ode An n. § 39-13- 211(a )(em phas is added). As set forth above, the proof in thi s case showed that t he vi cti m was killed in a vi olent manner. She was stabbed twelve (12) ti mes, with two (2) of the these w ounds through her hea rt. She received a blu nt t rau ma injury that literall y burst her liver at four (4) sites. She was also str angled sufficiently to fra cture he r hyoid bo ne.

Defendant argues that the proof j ustifi ed a charge of th e lesser grade offense of voluntary man slaughter. He cites t he proof that he had told hi s aunt that he “just went wi ld” and started stabbi ng the victim after she bit his penis.

A s a panel of this court ha s previously stated in re ference to volun tary
mans laughter, “[t] he resentment must bear a reasonable pr

oportional ity to the provocati on and not every provocati on will reducekilling to manslaug hter.” State
v. Thompson , No. 03C01-95 03-C R-00060, sli p op. at 6, Cocke County (Tenn. Cri m. App., at Kno xville, De c. 12, 1 996)( Rule 11 applicat ion denied). In State v. Williams , No. 02C01-9209-CR-00220, Shel by Coun ty (T enn. C rim. App ., Jackson, Oct. 12, 1 994)(N o Rule 1 1 applica tion fi led ), the defendant was-27-

convictedof felo ny mur der of his father, and the offense was committed i n the victim’s home during the perpetrati on of a robber y. The victi m was stabbed sixteen (16) ti mes. Based upon evide nce of a struggle bet ween the defendant and victi m, the defendant argued that

the tri al court err

ed by fail ing to i nstruct t he jury on “manslaughter. ” Noting t hat the trial court provided i nstructi ons on second degree murder and that t he victi m was stabbed sixteen (16) times , our co urt held thatthe proof did n ot warrant an instru ction on either volun tary or involuntary
mans laughte r. State v . Wil li ams , sli p op. at 35.

In the case sub judice , we conclude that the multi ple inj uries inflictedupon the victi m constitute an unreasonably hi gh proporti onality to the “pr

ovocation” relied upon by Defendant, and as a re sult, an instruction on vo luntary manslaughter was not warranted.
Furthermore, we question as to whether vol untary man sl aughter is a lesser grade offense of the cha rge of m urder in the perpetra tion of theft in this case . It is true t ha t our supreme court has stated that “ [v]oluntary manslaughter is a lesser grade of first degree murder un der Tennes see statutes.” Trusty , 919 S.W.2d at 311. However, t he analysis in Trusty was in the context of at tempted premed itated and delibera te first degree mu rder.
Appr oxima tely two months after the supreme court’s opini on in Trusty was filed, our supreme court filed its opini on in State v. Kimbrough , 924 S.W.2d 888 (Tenn. 1996), where t he Court held t hat the offense of “attempted felon y-murder” does not exist

in Tennessee. I ncluded in its analysi s in Kimbrough , ou r su pre me court noted that “felony murder” dif

fers fr om other types of

murder by holdi ng the-28-

defendantstri ct ly li able even when the kil ling i s unintended. The court fur ther quoted from 2 Charles E. Torcia, Wharton’s Criminal Law § 147 at 300-01 (15th ed
. 1994) that “felony-murder” involves “an inte nded felony and an unintended homicide.” Id . at 890.
Voluntary manslaughter req uires proof of an intentional or knowing kil ling. Tenn. Code Ann. § 39-13-211( a). At t he time of Defendant’s offen se, the gravamen of the offens e of fir st degree murder commit ted in theperpetrat ion of theft was an intent to commit theft and a reckless kill ing during the perpetrat ion of t he theft. The Tennessee Supreme Court concluded i n Kimbrough t hat th e offense of “attempt ed felo ny mu rder” doesnot exist in Tennessee because an “attemp t” is an intenti onal act a nd “one cannot intend to accomplish the uni ntended [”felony murder”].” Id . at 892. In ligh t of Kimbrough , we ar e constrainedto conclude tha t under the pa rticular facts of this case, volunta ry manslaughter i s not a lesser grade of murd er in the pe rpetration of a theft.

Also as voluntary manslaughter req uires proof of an intentional or knowing kill ing in a state o f passion caused b y adequ ate prov ocation ( elements not included within the crim e of m urder in the perpetr ation of t heft), neither ca n it be a lesser included offense o f murde r. See Trusty 919 S.W .2d at 311
.

There fore, this issu e is withou t merit.

8. M OTIVE AND INTENT-29- Defendant argues that the t rial cou rt erred in instru cting th e jury tha t it could consider “c r imes other t han that for which [Defendant

] is on t rial”

as evidence to prove Defendant’s “motive and intent .” The “other crimes”evidence consisted of the testimony of fourwomen who each claimed the Defendan t raped and strangled them. The instructi on the judge gave was as follows: If from the proof

you find t he defendant hascommitted crimes other than that for

which he is on trial, you may not consider such evidence to prove h is dispos ition to commi t su ch acri me as that on trial. This evidence m ay only be con sidered by you for t he limited purpose of dete rminin g whe ther it pro ves: 1) the de fenda nt’s identity; thatis, such evidence may be cons idered by you if i t tends to establish the defen dant’s ide ntity in th e ca se on trial ; 2) motive; thatis, such ev idence may be consider ed by you if it

tends to show a motive of t he defendantfo r the commission of the offense prese ntly charged; 3) the defendant ’s intent; that is, such evidence may be considered by you, if it tends to establish that the defendant actua lly intend ed to c omm it the crim e wit h which he is p resen tly charged. Some evidence of oth er crimes, if conside red by you for an y purpose, must not be consi dered for any purpose other

th an that specifi cally st

ated. Defendant admits that n o objection wa s made at trial regarding this jury instruct ion and tha t the is sue was n ot raise d in his m otion fo r a new trial. Th is issue is, therefor

e, waived pur

suant to Rule 3 of the Tennessee Rules of Appe llate Procedure. Not withstandi ng his failure to addre ss this issu e prior to this time, Defendant

asserts t he charging of the ju ry with th is instruction rises to the level of plain error.

Wh ile appellate courts general ly do not co nsider is sues not rai sed at the tri al court level, if an error affects the “su bstantial rights of an ac cused,” then i t may be noticed at an y time if “necessa ry to do sub stan tia l j usti ce.” Tenn. R. Cri m. Pro. 52(b); State v. Ogle , 666 S.W .2d 58, 60 (Tenn . 1984); State v. Butler ,-30-

795 S.W.2d 680, 683 (Tenn. Crim . App. 1990 ). For a “substan tial right” to have be en affecte d, the e rror m ust ha ve pre judice d the a ppella nt; in oth er wor ds, it must have affected the outcome of t he trial court procee dings. United States v. Olano , 507 U.S. 725 (1993). The Defendant bears the burden of persuasi on, and this burden has not been met. Even if t he trialcourt err ed in chargi ng the jury as to the Defendant’ s motive, i dentity and intent , he was not convic ted of m urder in the perpetrat ion of rape. I f any erro r was committed, i t was harmless beyond a
reason able do ubt. This issue is with out me rit.

9. PRO SEC UTO R’S ARGUMENT

Defendant argues that the trial co urt erred b y allowing th e prose cutor to state in his cl osing argument to the jury that it was to consider

evidence of the otherrapes to sho w Defend ant’s pro pensity to comm it the offens e of rape . In Harrington v. State , 215 Tenn. 338, 385 S. W.2d 758 ( 1965), thetest to be applied by an ap pellate court in reviewi ng instances of improper conduct

was set forth by our supreme court . The question is “whether the im prope r cond uct co uld have affected the verdict to the prejudice of the de fendant.” Id . at 340, 38 5 S.W.2d at 759. I n Judge v. State , 539 S .W .2d 34 0 (Te nn. C rim. A pp. 19 76), this Court noted five factors ge nera lly accepted as those to be consider ed when making the determinati on of whether i mproper conduct af fected the verdict

to the defendant’s prejudice. Those factors are as foll ows: 1. the conduct complained of v iewed in context a nd in light of th e facts and circumstances of the case; 2. the cur ative me asures underta ken by th e trial court a nd th e prosecution ; 3. the intent o f the prose cutor in m aking the improp er statem ent; 4. the cumulative effect of the improper conduct and any other errors in the reco rd; and,-31- 5. the relat ive str

ength or weakness of the case. Id. at 344. The prosecutor’s remarks to which the Defendant objects to are as follows: And now you heard fro m seve ral wom en toda y, A ngela Ar nold, Anglia Phillips, Danielle Fisher, Sara Jo hns on, an d the J udge is going to inst ruct you as t o what you can use their testimony

for. And I believe that one of t hose things that you will be allowed to use that for is motive and intent . What was his motive for coming i n there? What was his intent for comi ng in there? You can al so use it for identity. And it was to rape her. Defendant argue s that th e pros ecuto r’s comm ents about the Defenda nt’s motive and intent ar

e nothing more t han an argument that Defendanthad a p ropens ity to commit other

crimes if

he had committed theprior crimes of rape. No objection was made at tri al regard ing the se co mm ents b y the pr osec utor, so this issu e is waived p ursuan t to Rule 3 of the Te nness ee Ru les of Ap pellate P rocedu re.

Notwithstanding the wai ver, a revi ew of the merit s of thi s issue does not show any prejudice to Def enda nt, in light of facts and circumstances

of the case. Defe ndan t was c onvicte d of m urder in the perpetr ation of theft , and not murder in the perpet ration of rap e. The jury chose not to conv ict the Defendant of murder in the perpetrati on of rape regardless of the pr osecutor’s arguments. Prior to mak ing the sta temen ts regarding motive and intent , the prosec utortold the jury t hat the ju dge would ins tr uct the m as to the l imited nat ure of the f our women’s testi mony, thus the ar gument is not shown t o have been made in bad faith. The judge did l ater inst ruct the j ury, asdiscussed in Defendant’ s issue number eight (8) , that t he evidence of the other r apes was only to be considered f or the li mited purpose of determining whether it proved Defendant’ s motive, intent, or identity. I n the absence of pr oof to the contrary, we must presume that the jury followed thetrial cou rt’s instruction
. See State v. Compton , 642 S.W.2d-32-

745, 746 (Tenn. Crim. App. 1982); Frazier v. S tate , 566 S.W.2d 545, 551 (Tenn. Crim. A pp. 197 7) (citations omitted) . This issu e is withou t merit.

10. CUMU LATIVE E RRORS

The Defendant argues that the cumulative effec t of the errors depriv ed him of a fair trial and justi fies a new trial . The Defendant cites Peop le v. All en , 420 N.W.2d 499 (Mich. 1988) , as authority. Upon review of Allen , we do not find this
case as binding aut hority in Tennessee. This court found on ly one er ror in relati on to the trial court’s ruli ng on impeachment of the Defendant by pri or bad acts, and ruled t he error w as harmless. Any holding that an err or is harmless
nece ssarily con tem plates that an analysi s of the cumulative eff ect of harmless
errors ha s been made
. State v. Ralph Parton , No. 117, sl ip op. at 8, Sevier Coun ty (Tenn. Crim. App ., at Kn oxvil le, Apr. 10, 1991)(Rul e 11 applicat ion denied, Sept. 23, 199 1). Thus there is not such an a ccumu lation of errors in this
c ase capab le of having deprived Defen dant of a fa ir trial. Id . This i ssue i s without m erit.

We affirm the ju dgme nt of the trial co urt.

____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ GARY R. WA DE, Judge-33-

___________________________________ JOHN H. PEAY, Judge