# FILED
April 23, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIM INAL APPEALS OF TENNESSEE AT KNOXVILLE NOVEMBER 1997 SESSION

STATE OF TENNESSEE, ) ) APPELLEE, )

) No. 03-C-01-9610-CR-0 0361 ) ) Sullivan County v. ) ) Frank L. Slaughte r, Judge ) ) (Aggravated Rape) BENJAMIN F. DISHMAN, ) ) APPELLANT. )

FOR THE APPE LLANT: FOR THE APPELLEE: Leslie S. Hale John Knox Walkup Assistant Public Defender Attorney General & Repor ter P.O. Box 839 425 Fifth Avenue, North Blountville, TN 37617 Nashville, TN 37243-0497 OF COUNSEL: Peter M. Coughlan Assistant Attorney Gener al Stephen M. Wallace 450 James Robertson Parkwa y District Public Defender Nashville, TN 37243-0493 P.O. Box 839 Blountville, TN 37617 H. Greeley Wells, Jr. District Attorney General P.O. Box 526 Blountville, TN 37617-0526 Teresa K. Murray-Smith Assistant District A

ttorney General P.O. Box 526 Blountville, TN 37617-0526 Barry P. Staubus Assistant District A

ttorney General P.O. Box 526 Blountville, TN 37617-0526

OPINION FILED:___________________________ AFFIRMED Joe B. Jones, Pre siding Judge2 

## O P I N I O N

The appell ant, Benjamin F. Dishman (defendant ), was convicted of aggravated rape,
a Class A felony, by a j ury ofhis peers. The trial court found the defendant was a multiple offenderand imposed a Range II sentence consisting of confinement f or forty (40) years in the Department of Correction. In this court, the defendant present s six basic issues

for review. He contends (1) the indic tment is defective because it fails to allege the mens rea required to commit aggravated rape, (2) the evidence is insufficient, as a matter of law, to support his conviction, (3) the trial court erred b

ynot requiring the state to elect the offense it would prosecute, (4) the trial court erred by refusing to instruct the jury on the defenses of voluntary intoxication and ignorance or mistake of fact, (5) the trial court erre d b y inst ructing the jury regarding the elements of aggravated rape and lesser included offenses, and (6) the trial court erred by limiting his cross-examination of the v ictim. After
a thorough review of the record, the briefs submitted by the parties, and the law governi ng the issues presented for rev iew, it is the opini on of this court that the judgment of the trial court should be affirmed. The victim was amember o f a church ministry which counseled prison inmates. She met the d efenda nt when he was confi ned by the Departmen t of Correction. She visited him in prison, talked to hi m on the telephone, a nd wrote tohim. When the defendant was havi ng problems regarding his parol e, the victim to ok steps to a

ssist him. Subseque ntly, the defendant was released, and he lived temporarily in the victim’s residence. The victim, fifty-one y

ears of age and the mother of a teenager, lived in Bristol , Tennessee. She planned to attend a Thanksgiv ing program and dinner at her church on the evening of November 18,1995. The defendant called and askedthe victi m to come to his res idence in Johnson City because he wanted to talk to her. They discussed the Thanksgivingcard the victim had sent to the defendant. However, s he refused to meet the defendant in Johnson City because she wanted to attend the Thanksg iving dinner at the church. The defendant, who had a motor vehic le, dr ove to t he victim’s residence. He3

entered the victim’s residence with a cup filled with an alcoholic beverage. The victim did not allow anyone

to drink alcoholic bev

erages in her residence . She took the cup andput it in the kitchen. The

victim testified the defendant w as not intoxicated whi le he was inside her residence. Wh ile the victim was sitting at a table in her kitchen, the defendant grabbed her throatand pulled her out of the chair. He then grabbed her by the hair. He “steered” the victim down a hallway l eading to he r bedroom. When they arrived in the be droom, the defendant threw the victim on the bed. He then stated: “You bitc h, take your clothes off.” The victim testified she w as terrified. She was afrai d of the defendant due to his mannerisms an d the way he was acting. Sh e removed her clot hing. The victim was ly

ing on thebed. The defendant unzippedhis pants and got on top of the victim. He penetrated her vagina wi th his reproductive or gan. Subsequently, he grabbed the victim by the hai r an d required her to perform fell atio upon him. Finally,he made the victim get on her hands and knees and he penetrated the victim’s vagina with his reproductive organ from behind her. The defendant turned the victim on her back and straddl ed her chest. He asked her: “Bitch, where’s y

our money?” She did not hav e any money in her residen ce. The defendant struck the victim on her face three or four times with his fist. The defend ant subsequently left the res idence. The victim testified she

was “knocked out” after being struck by the defendant

. She felt she was near death. Her eyes were not focusing. She s tated that “my eyeballs

wanted to go up in my eyes, i n my head.” She sustained bruises and had knots on her head. The bridgesbetween her teeth were loosened, and she had sores in her mouth. She could not work for two months. She began having nig htmares following the ev ents in question. A doctor testified the victim had “[t]ears or injuries that are readi ly apparent to the naked ey e” at the opening of the vagina. The doctor als o found an irritation or inflammati on of the tissues in side her va gina. He op ined this was consist ent with re cent sexu al activity. A police officer observed the defendantwalking along the shoulder of a roadway in Kingsport. The defenda nt wa s staggering into a lane of traffic. The officer stopped and talked to the defendant. According to the officer, the defendant told him he had been to4

see his girlfriend in Bristol, and was going to Johnson City. While it wasquite cold outside, the defendant was not wearing a coat. He had an odor of an intoxicating beverage on his breath. The defendant admitted he ha d consumed f our drinks of an alcoholic beverage at a friend’s house in Bristol. He had been walking three and one-half hours. The officer arrested the defendant for public drunken ness and transported him to the Kingsport City Jail. While at the jail, the officer observed the def endant h ad a scrat ch under his right eye and a scratch on his hand in the area of his knuckles. When the defendant’s shoes were removed, there were several long hairs “stringing” from his socks and shoes.

I.

The defendant contends t he indictment in this case is fatally defective because it fails to allege the mens rea , a n essential element of aggravated rape. He argues this defect had the effect of “depriving the trial court of jurisdiction and rendering the appellant’s conviction void.” The defendant predicateshis argument upon this cour t’s opinion in State
v. Roger Dale Hill, Sr. ,Wayne County No. 01-C-01-9508 -C C-00267, 1996 WL 346941 (Tenn. Crim. App., Nashvil le, June 20, 1996), and other opinions of this court.The State of Tennessee contends the indictment is valid. The indictment charges the offense of aggravated rape. It alleges the defendant “on
or about November 18, 1995 in the State and County aforesai d and before the finding of this Indictment did unlawfully, feloniously, and by force sexually penetrate [

the victim] and did cause [the victim] bodi ly injury by striking her about the hea d and face. . . .” The supreme

court resolved this issue in State v. Hill , 954 S.W.2d 725 (Tenn. 1997). The court said in ruling:

We hold that for of fenses which neither expressly require nor plainlydispens

e with the req uirement fo ra culpable mental state, an indictment which fails to allege such mental state will be sufficient t o support prosecution and conv iction for that offense so long as: (1) the language of the indictment i s sufficient to meet th e constitutional requirement of notice to the ac cused ofth e charge agains t whic h the accused must defend, adequate basis for entry of a proper judgment, and protection from5 double je opardy; (2) the form of the indictment meets the requi rements of Tenn. Code Ann. § 40-13-202; and (3) the mental statecan be logically i nferred from the conduct alleged. 954 S.W.2d at 726-27. The indictment in this case, l ike the indictment for aggr avated rapein Hill , meets the aforementioned criteria. A defendant who sexually penetrates a victim by force and inflicts bodilyinjury to the

victim must necessarily act int entionally, knowing ly, or recklessl y. Hill , 954 S.W.2d at 729 This issue is without merit.

II.

The defendant contends the evidence is insufficient, as a matter of law, to support his conviction for aggr

avated rape. He argues (a ) the Stat e of Ten nessee f ailed to p rove “bodilyinjury was infli cted to accomplish the [requis ite] rape,” and (b) he did not possess the required mens rea to commit the offense.

A.

When an accused challenges the sufficiency of the convicting evidence, this court must review the record to determine if the evidence adduced at trial is sufficient "to support the finding by the trier of fact of guilt beyond a reasonable doubt." Tenn. R. App. P. 13(e). This rule is applicabl e to fin dings of guilt based upon di rect evidence, circu mstantial evidence, or a combination of direct and circumstantial evidence. State v. D ykes , 803 S.W.2d 250, 253 (Tenn. Crim. App.), per . app . denied (Tenn. 1990). In determining the sufficiency of the convic ting evidence, this co urt does not reweigh
or reevaluate the evidenc e. State v. Ma tthews , 805 S.W.2d 776, 779 (Tenn. Crim. App.), per . app . denied (Tenn. 1990). Nor may this court s ubstitute its inferen ces for th ose drawn bythe trier of

fact from circumstantial evi dence. Liakas v. State , 199 Tenn. 298, 305, 2866

S.W.2d 856, 859, cert
. denied , 352 U.S. 845, 77 S.Ct. 39, 1 L.Ed.2d 49 (1956). To the contrary, this court is require d to afford the State of Tennessee the stronges t legitimate view of the e v idence contained in the recor d as well as all re

asonable and legitimate inferences which may be dr awn from the evidence. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). Questions concerning the credibi lity of the witnesses , the weight and value t o be given the evidence, as well as all factual issues raised by the evidence are resolved by the trier of fact, not this court. Cabbage , 571 S.W.2d at 835. In State v. Grace , 493 S.W.2d 474, 476 (Tenn. 197

3), our supr

eme court said: "A

guilty verdic

t by the jury, approv

ed by the trial judge, accredits the testimony of the witness es for the St ate and resolves all conflicts in favor of the theory of the State." Since a verdict of guilt removes the pr esumption of innocence and replaces i t with
a presumption of guilt, the accused, as the appellant , has the burd en in this court of illustratingwhy the evidence i s insufficient to support the v erdicts returned by the

trier of fact. State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982).Th is court will not disturb a verdict of guilt due to the sufficiency of the evidence unl ess the facts contained in the record are insuf ficient , as a mat ter of la w, for a rational trier of fact to fin d that the accused is guilty beyond a reasonable doubt. Tuggle , 639 S.W.2d at 914.

B.

In the context of this case, the State of Tenn essee was required t o prove the following elements to establish the offense of aggravated rape beyond a reasonable doubt: (a) the defendant unlawfully sexual ly penetrated the vic tim and (b) the defendant caused bodilyinjury to the

victim. Tenn. Code Ann. § 39-13-502(a)(2). The State o f Tennessee proved these elements of aggravated rape bey

ond a reasonable doubt. Tenn. R. App.P. 13(e); Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (19 70). The defendant cites State v. Smith , 891 S.W.2d 922, 928 (Tenn. Crim. App.), per . app . denied (Tenn. 1994) and State v. Jackson , 670 S.W.2d 634 (Tenn. Crim. App.), per . app . denied (Tenn. 1984), to support his theory that the infliction of bodily injury is only an7

element of the offense of aggravated rape when the infliction of bodily injury precedes or accompanies the penetration. The defendant’s reli ance on these cases is mispla c e d. Neither case addresses the theory he advances in this case.Nor does thestatute support this theo ry. The statute uses the term “accompani ed.” Itdoes not state when the “bodily inj ury” must be inflicted. In other wo rds, the statute does notstate the “bodily inj ury” must be inflicted to accomplish the act of penetration. Thus, th is c o urt must construe the statute to determine the intent of the legi slature when enacting this statute.
(1)

The polestar

of statutory construction is the intent of the legisl ature when enacting
a statute. Owens v. State , 908 S.W.2d 923, 926 (Tenn. 1995). Thus, a court’s r ole in the interpretation of a statute is to “ascertai n and give effect to the legi slati ve i ntent without unduly restricting or ex

panding a statute’s cove rage beyond its intended scope.” Owens , 908 S.W.2d at 926; see Hicks v. State , 945 S.W.2d 706, 707 (Tenn. 1997); State v. Davis , 940 S.W.2d 558, 561 (Tenn. 1997); State v. Sliger , 846 S.W.2d 262, 263 ( Tenn. 1995). The common law rules of construction developed through the years are aids which assist a court in making this det ermination. Roberson v. University of Tennessee , 912 S.W.2d 746, 747 (Tenn. Ct. App.), per . app . denied (Tenn. 1995). The intent o

f the leg islatu re is to

be derived fr

om the face of the statute if the verbiage contained within the four c orners of the statute is plain, clear, and unambiguous. Austin v. Memphis Publ’g. C o ., 655 S.W.2d 146, 14 9 (Tenn. 1983). In other words, “[u]nambi guous stat utes must be construed to mean what they say.” Roberson , 912 S.W.2d at 747. (2)

This court is of the opinion the language used by the General Assembly in proscribingthe offense of aggravated rape is clear and unambiguous. The inte nt of the General Assembly can readi ly be determined by a r eading of the statute.8 The statute in question, Tenn. Code Ann. § 39-13-502, provides in part: (a) Aggravatedrape is unlawful sexualpenetration of a victim bythe defendant or the defenda nt by a victim accompanied by any of the following circumstances: (1) Force or coercion is used to accomplish the act and the defendant is armed wit h a we apon o r any article used or fashioned in a manner

to lead the victim reasona bly to beli eve it to be a weapon; (2) The defendant causes bodily injury to the victim; . . . (Emphasis added). As can be seen from a reading of this statute, the Tenn essee General Assembly made a clear distinction betw een Tenn. Code Ann. § 39-13-502(a)( 1) and (a)(2). Section 39-13-502(a)(1) requires the use of force or coercion to be asserted in order to “accomplish the act” of sexual penetration before the crime of rape can be elevated to ag gravated rape. Section 39 -13-502(a)(2) does not pr ovide that the bodily i njury must be inflicted to “accomplish the act” of sex ual penetration. It was theintent of the General Assembly to place a restraint upon the i nfliction of injury to a rape victim to protect the victim. The restraint is in the form of an elevation of the crime of rapeto aggravated rape if the perpetrator inflicts “bodily injury” as this phrase is defined by statute. If the General As sembly had intended to limit the application of this section to bodily inju ry infli cted before or during the sex ual penetration, the General Assembly would hav

e inserted the samephrase it inserted in § 39-13-5 02(a)(1) , namely, to “accomplish the act” of sex ual penetration.

(3)

This court deci ded this very issue in State v. Locke , 771 S.W.2d 132, 136 (Tenn. Crim. App. 1988), per . app . denied (Tenn. 1989). In Locke the defendant was able to enter the victim’s second story apartment during the early morning hours without awakening the victim. He penetrated the victim on two or three occasions. The victim subsequently hit Locke, and he left

through a door. When the victim w ent to a window, she s

aw Locke and began screaming loudly. Locke threw a fu ll beer can at the wind ow. He then charged the window and attempted to open i t. The victim ran into her bedroom, slipped into a pair of9

jeans and a top, exited throu gh a window onto the roof, and jumped tothe ground. As a result, she suffered severe debilitating injuri es to her spine and large toe. The defendant vig orously c ontended the State of Tennessee failed to establ ish he caused personal injuries to the victim within the meaning of the statute. He argued the “personal injuries” must be caused or inflicted for the pur pose of making the victim s ubmit to th e unlaw fu l penetration or while the accused s exually penetrated the v ictim. This court ruled t he injuriessustained by

the victi m when she jumped from the roof were properl y used to elevate the rape to agg ravated rape. In rulin g, this court said:

Whether the seriou s, d ebilitating injurie s sustained by the victim to her spine and larg e toe can be said to have “accompanied”the unlawful sexual penetration of the victim is a question of

considerable complexity

. This issue turns upon the meaning of the term “a cco mpanied” as used in . . . the applicable statute . . . . The word “accompany” encompasses acts o r cir cumstances which occur

before, during and after the consummati on of the unlawful sexual penetration. In Balentine’s Law Dictionary (3d ed. 1979), it is said the w ord “ac company,” as used in a statute, does not necessarily mean “simultaneous,” but may mean “in relation to, connected with,” or “ to follow.” See Tucker v. Kerner , 186 F.2d 79, 82 (7th Cir. 1950)

. Black’s Law Dictionary(5th ed. 1979 ), ref erring to Webster’s Dictionary , defines the word “accompany” as “[t]o occur in association with.” See United States v. Lee , 131 F.2d 464 (7th Cir. 1942). 771 S.W.2d at 136. In this case, the defendan t penetrated the victim thr ee times in rapid successi on, and, immediately after the third penetration, commenced to beat her unmercifully. It was clearlythe inten t of the G eneral As sembly t o elevate the offense of rape to aggravated rape based up on the facts of this case. The bodily i njury “accompanied” the rape. The bodilyinjury was not, as the defendant urges, required to be inflicted before or during the sexual penetration. This issue is without merit.

III.

The defendant contends the trial court committed err or of prejudicial dimensions by refusing to require the State of Tennessee t o elect which penetration it would prosecute.10

The defen dant argues he was charged with one count of aggravated rape, but the st at e established three separate penetrations of the victim. The State of Tennessee contends it was not required to make an election in this c ase. The state argues all three acts of penetration occurred i n successio n at the same exact location, and, ther efore, constituted but a single act of aggr avated rape. As a general rule, the trial court is required to make the State of Tennessee e lect the offense it will prosecute when the defendantis charged with one count of aggravated rape and th e evidence establishes two or mor e acts which could cons titute aggravated rape. State v. Shelton , 851 S.W.2d 134, 137 (Tenn. 1993); Burlison , 501 S.W.2d 801, 804 (Tenn. 1973); State v. Clabo , 905 S.W.2d 197, 204 (Tenn. Crim. App.), per . app . denied (Tenn. 1995); State v. Hallock , 875 S.W.2d 285, 292-93 (Tenn. Crim. App. 1993), per . app . denied (Tenn. 1994); State v. B rown , 823 S.W.2d 576, 583 (Te nn. Crim. App. 1991). The purpose of the election is to ensure the jury’s verdic

t is unanimous for the same crimi nal act. If this rule did not exi st, the jurors could v ote to convict the defendant, but their verdict mightnot be unanimous for t he same criminal conduct. Indi vidual jurors could vote to convict the defendant based upon separ ate and distinct acts of crimi nal conduct. In this case, there were three separateacts of penetration. The victim testified the defendant v aginally penetrated her while she lay in the bed on her back. When the defendant los t his erection, he forced the victim to perform fellatio upo n him until his reproductive organ was erect. He then forced the victim to get on her hands and knees. H e again vagi nally penetrated her from behi nd her. The record establishe s these three acts of penetration occurred in ra pid succession. Only seconds separated the three penetration s. Thus, the record supports the conv iction of only one aggr avated rape conviction. In State v. Dan Anderson , Sullivan County N o. 929, 1991 WL 42427 (Tenn. Crim. App., Knoxville, April 1, 1991), Anders on wa s charged and convicted of one count of aggravatedrape. The evidence esta blished Anderson forced the v ictim to have both vaginal and anal intercourse, and perform fellatio upon him. Later, Anderson filed a postconviction action. Dan Anderson v. State , Sullivan County No. 03-C-01-9409-CR-00332, 1995 WL 676395 (Tenn. Crim. App., Knoxvill e, N o vember 15, 1995). In the post-11

convictio n ac tion, Anderson contended in part that trial counsel was ineff ective because counsel failed to require the State of Tennessee to elect w hich penet ration it would prosecute and seek a conviction. This court held counsel was not ineffective because the evidence would only

support one conviction. In ruling, this cour t said:
In the case sub judice the appellant was charg ed in a single count with one offense of aggravated rape. The record before us supports the commission of but one offense. Indeed, at the post-convictionhearing, during op ening remarks b y appellant’s counsel, the trial judge stated: “ It’s a ll essentially one transaction . . . It’s no t a situation where he co uld have been convicted of three separateoffenses of aggravated rape at that point. It was all essential ly one occurrence.” At the conclusion of the hearing, the jud ge again observed that the thr ee instancesof penetration in this case were “all part of the same general transaction.” Thus, a non-unanimous j ur y verdict based upon unindicted conduct w as not possible. * * * * [T]he record supports a c oncl usion that the penetrations occurred during a single epi sode o f intercourse and were m otivated by a single basic i ntent. Thus, the risk of a no n unanimous jury

verdict did not exi st, and we cannot conclude that trial counsel’s failure to require an election of offenses was deficient representation. Slip op. at 6-7. In State v. James Monroe Bost , Davidson County N o. 01-C-01- 9112-C R-00373, 1992 WL 213374 (Tenn. Crim. App., Nashv ille, September 3, 1992), Bost was convicted of aggravated ra pe, aggravated sexual battery, especially

aggravated robbery, and aggravatedrobbery. The evidence established the defendant raped the victim after he had commi tted the burgla ry and robb ed the vict im. He sub sequentl y raised th e vi ctim’ s nightshirt and fondled her breasts. On appeal, Bost contended he could n ot be convicted of both aggravated rape an d aggravated sexual battery because “the lifting of the victim’s nightshirt and fondling her breasts ‘aro se out of the same transaction’ as the vaginal penetration, and therefore demonstrated the same criminal intent.” Thi s court, finding the evidence did not support convictions for both aggravated rape and aggra vated sexual battery, said:
We must agree with t he appellant’s reasoning. The facts in

this record do not support separate conv ictions. The fondling occurred concomitantly with the vaginal rape, and the evide nc e here shows it to have been p art and parcel of the be stial act.1 The cases cited by the defendant do not support the proposition that the trial court’s failure to instruct on voluntary intoxication constituted fundamental error. In fact, State v. Norris , 874 S.W.2d 590, 600 (Tenn. Crim. App.), per . app . denied (Tenn. 1993), cited by the defendant, reaches the opposite resul t. Id

. In Norris , this court concluded it was not plain error for a trial court to omit an instruction if the defendant failed to object or make a special request for the instruction. Id

. State v. Thompson , 519 S.W.2d 789, 792 (Tenn. 1975), also cited by the defendant, is notrelevant to the present c ase. In Thompson , the supremecourt concluded the failure of a tr ial court to instruct on the l aw of circumstantial evidence constitu ted fun dament al error wh en al l the evidence presented w as circumstantial. The court also statedthe failure to instruct on circumstantial evidence did not constitute reversible error if both direct and circumstantial evidence were p resented at trial. Id

. Even by analogy, this holding does not support the proposition that the trial court committed fundam ental err or; volunt ary intoxi cati on was merely one of many theories asserted by the defendant. 12

. . . Accordingly, the c

onviction for aggrav

ated sexual battery is reversed and dismissed.However, as the ev i dence amply supports the aggravated rape conviction, there i s no need to order a remand for a new tri al on that count. Slip op. at 3-4. See State v. Locke , supra . In this case, the three penetrations occurred in the same bedr oom, were part of one continuous course of conduct, and they occurred in rapid suc cession. Conseque ntly, the evidence in this case would onl y support one conviction. In shor t, the trial court did not abuse its discretion by r efusing to require the Stat e of Tennessee to elect the offense it would prosecute and seek a conviction. This issue is without merit.

IV.

The defendant next contends the trial court erred in failing to ins truct the jury onthe general defenses of voluntary intox ication and mistake of

fact. The defendant concedes he did not request general defense instructions at trial. The issue was not raised until the motion for new trial. Since intoxication and mistake of fact are general defenses that do not require notice to the state, the defendant argues the tr ial court’s failure to instr uct the jury on defenses fairly raised by the proof constituted funda mental error. 113 A.

It is the duty of

the trial court, without request, to i nstruct the jury on the rules of law governingevery

issue raised by the ev

idence. See Poe v. State , 212 Tenn. 413, 416, 370 S.W.2d 488, 489 (1963); State v. Locke , 771 S.W.2d 132, 138-39 (Tenn. Crim. App. 1988), per . app . denied (Tenn. 1989). An accused’s right to a full exposition of

the law applicable to the facts extends to the accused’s theory of defense. Poe , 212 Tenn. at 414-20, 370 S.W.2d at 4 91; Da vis v. State , 64 Tenn. 612 (1875). However, before an accused is entitled to an instruction on a theory of defense, the defense must be “fairly r aised” by the evidence adduced at trial

. Poe , 212 Tenn. at 416, 370 S.W.2d at 489. See State v. Hardin , 691 S.W.2d 578, 581 (Tenn. Crim. App. 1985) (alib i defense not fairly raise d by the evidence); State v. Mathias , 687 S.W.2d 296, 298 (Tenn. Crim. App.), per . app . denied (Tenn. 1985) (entrapment defense not fairly raised by the evidence); State v. Chambless , 682 S.W.2d 227, 231-32 ( Tenn . Crim. App.), per . app . denied (Tenn. 1984) (temporary insanity defense not fairly raised by the evidenc e); Harrell v. State , 593 S.W.2d 664, 672 (Tenn. Crim. App. 1979), per . app . denied (Tenn. 1980) (voluntary intoxica tion not fairly raised by the evidence). The question which this court mus t resolve is whether the evidence contained in the record “fairly raises” the defenses of voluntary intox ication and mistake of fact. B.

The defendant contends he did not possess the mens rea to commit the offense of aggravat ed rape becaus

e he was hig hly intox

icated at the

time he penetrated thevictim. In support of this argument, the defendan t points to the fact he wasdrinking an alcoholic beverage when he entered the vic tim’s residence. He als o points to t he testimon y of Officer Sean Chambers of the Kingsport Police Department who arr ested the defendant forpublic drunke nness appr oximately three and one-half hours after he left the victim’s residence. The victim testified the defendant b rought an alcoholic bev erage int o her residence and she took the beverage away

from him. She did not allow anyone to drink alcoholic beverages in her residence. However, she testif ied t he defendant was not14

intoxicated while he was in her residenc e. Whether or not the defense of intoxicati on is available to this defendant depends
on whether the defendant was intoxica ted at th e time he committed the rape. The only evidence in the record regarding w hether the defendant was intox icated at the time of the rape was the testimony of the victim that the defendant arr ived at her home with

a drink in his hand, but that

he was not intoxicat

ed. The defense of intoxication was not fairly raised by the p roof. The record reflects the defendant w as abl e to con verse with the v ictim on the t elephon e without difficulty before v isiting her home. He w as apparently coherent. The defendant drove to the victi m’s home. The victim did not describe any act or conduct which led her to believe the defendant was in toxicated or which supports the defendant’s argumentthat he did not possess the requis ite mens rea to commit the offense of aggravatedrape. The victim knew the defendant well, and had seen hi m both sober and intoxicated on prior occasions. There is no evidence in the record to contradict the victim’s assertion that the defendant was not intoxicated at the time the rape took place. Although a police officer testified the defendant appeared intoxicated when he observed the defendant on the side of a road in Kingsport, the officer did not encounter the defendant until three and one-half hours after the commission of the rape. The defendant could have consumed additional alcoholic beverages between the time he left the victim’s residence and the time he was arrested in Kingsport

. This issue has no merit. C.

The defendant also contends the evidence estab lis h es the victim gave the defendant the impression she wanted to be intimate with him, and he believed the victim
was consenting to the sexual activities t hat took place on the date in question. He therefore argues he was ac ting upon a mistake of fact. Tenn. Code Ann. § 39-11-502. The defense of mistake of fact was not fairly raised by the evidenc

e. The victim was fifty-one years of age; the defendant wa s thirty-one

years of age. While the victim said she loved the defendant as if he was her child, she did not want to be intimate with him. Nor15

did she want him to be a lover. Her

only motiva tion in as sisting th e defen dant was to give him a second chance after his rel ease from the Department of Correction. She provided him with a place to live for a few days following his rele ase. She fed him. She helped him obtain forms of identification. She provided him with money to visit his family. Moreover, th e defendant was married when this occurred. There is no evidence in the record establishing the defendant and the v ictim had anything more than a platonic friendship. On November 18, 1995, the defendant grabbed the victim by her throat and pulled her out of her

chair. He grabbed her by the hair and “steered” her down a hallway to her bedro om. He stated: “You bitch, take your clothes off.” The defend ant penetra ted th e victim’s vagina, grabbed the victim by the hair and forced her to perfor m fellatio on him. He th e n made the victim get on her hands and knees so he could penetr ate her from behind. The defendant then proceeded to straddle the victim’s chest and struck her three to four times in the face. The defendant did not testify. Thus, there is no credible view of the evidence which supports a mistake of fact defense; furthermore, the defendant failed to request a mistake of fact instr uction. The trial court did not err by failing to instruct the juryon mistake of fact. State v. McPherson , 8 82S. W. 2d 365 (Tenn. Crim. App.), per . app . denied (Tenn. 1994). The defendant cites Jones v. St at e , 889 S.W.2d 225 (Tenn.), per . app . denied (Tenn. 1994), for theproposition that mistake of fact w as a viable defense to

the charge of aggravated rape in the present case. In Jon es , ther e was sufficient evidence in the record to suppor

t a finding that the defendant had be en mistaken regarding the victim’s age. The victim’s age w as not an aggravating factor in the present case; further, ther e was no credible view of the evidence which supported the application of a mistake of f act defense. This issue has no merit.

V.

The defendant argues that the trial court erred in instructing the jury regarding the elements of aggravated rape and l esser included offenses. The defendant argues the trial16

court committed reversible er ror by instructing

the jury it needed

to find the defendant used force or coercion andcaused bodily injury to the victim before convicting him of aggravated rape. The defendant also argues the trial court erred b

y failing to include

the mens rea for sexual battery in the jury charge and by failing

to instruct the jury

on th e less er included offen se of aggra vated sexu al batte ry.

A.

In criminal cases it is

the duty and ob ligati on of a trial judge, without request, to instruct the jury as to the law applicable to the ev idence as well as any

issue which the jury must ultimately decide. Poe v. State , 212 Tenn 413, 416, 370 S.W.2d 488, 489 (19 63). See State v. Harbis on , 704 S.W.2d 314, 319 (Tenn.), cert
. denied , 476 U.S. 1153, 106 S.Ct. 2261, 90 L.Ed.2d 705 (1986); State v. Thompson , 519 S.W.2d 789, 792 (Tenn. 1975); State v. Elliot , 703 S.W.2d 171, 179 (Tenn. Crim. App.), p er . app . den ied (Tenn. 1985). The trial judge is sai d to be “the proper source” from which the jury i s to receive the law , and serves as a witness to the law applicabl e to the case. State ex re l. Myers v. Brown , 209 Tenn. 141, 148-49, 351 S.W.2d 385, 388(196 1); Ford v. State , 101 Tenn. 454, 458, 47 S.W. 70 3, 705 (1898). Once the trial court has char ged the jury onthe law

governing the case,it is the duty of the jury to apply the law , as charged, to the facts int roduced into evidence. Ford v. State , supra . As our supreme court sai d in Ford :

It is the dut y of the ju ry to apply it, under the direction of the Court, so far as he has directed, to the facts in evidence. They must treat it as applicable to the facts, and apply it as they determine the facts to be. The Court is a witness to them what the law is, and the jury shoul d adjudge it to be as giv en them

. . . . 101 Tenn. 458, 47 S.W. at 705. This court must now determine whether t he instructions given by the trial court resulted in reversi ble error. B.

The instruction the

trial court gave the jury on the charge of aggravated rape was:17 For you to find the defendant guilty of thi s crime[aggravated rape], the Stat e must ha ve proven beyond a reasonabl e doubt the existence of the following elements: (1) that the defendanthad unlawful sexualpenetration of the alleged victim or t he alleged victim had unl awful penetration of the defendant; and (2) that force or coercion was used to accomplish the act; and (3) that the defendant caused bodily inj ury to th e alleged victim: (sic) and (4) that the defend ant acte d either i ntentio nally or kno wingly. The Tennessee Code defines aggravated rape as:

[U] n lawful sexual penetration of a vi ctim by the defendant or the defendant by a victim accompani ed by any of the following circumstances: (1) Force or coercion is used to ac complish the act and t h e defendant is armed w ith a wea pon or any article used or fashioned in a ma nner to lead the victim r easonably to believe it to be a weapon; (2) The defendant cau ses bodily injury to the victi m; (3) The defendant is aided or abetted by o ne (1) or more other persons; and (A) Force or coercion is used to accomplish the act; or (B) The defend ant knows or has reason to know that the victim is mentally de fe ctive, mentally incapacitated or physically helpless; (4) The victim is les

s than thirteen (13) year s of age. Tenn. Code Ann. § 39-13-502(a). The instruction given to the jury by the trial court r

equired the State of Tennessee to prove additional elements beyond a reasonable doubt before obtaining a convi ction for aggravatedrape. Since the instructi on given by the trial court had the effect of increasing the burden on t he state, no prejudice inured to the defendant. Therefore, any error committed by the trial court c onstituted harmless error. Tenn. R . App. 36(b) and Tenn. Crim. App. 52(a). C.

In instructing the jury

on the charge of sexual battery, the trial co urt stated theState18

of Tennessee was required to prove:

(1) the defendant had unlaw ful sexual conduct with the alleged victim or

the alleged victim had unl awful sexual contact with the defendant; and (2) that force or coercion wer e [sic] used to accomplish the act. The court defined “sexual conta ct” as including “th e intentional tou ching of the alleged victim’s, defen dant’s or any other pers on’s intimate parts, or the intentional touching of the clothing cov ering the immediate area of the al leged victim’s -- immediate
area of the allege [sic] victim’s, the defendant’s, or any other per son’s intimate parts, if the intentional touching can be reasonably construed as being for the purp ose of sexual arousal or gratification.” The c ourt went on to

define “‘intentional’ conduct” or “‘intentional’ result”as an event that occurs “ when the defendant wa nts to do the act or achiev e the result. It is his or

her conscientious objective or desire to engage in the conduct or cause the result.” Sexual battery is define d in the TennesseeCode as “unlawful sex ual contact with
a victim by

the defendant or the defendant by a victim” accompanied by "force or coercion.” Tenn. Code Ann. § 39-13-505. The statute proscribing the offense of sexual battery does not contain a culpable mental sta te. Tennessee Code Annotated § 39-11-301(b) requir es a culpable mental state unless the definition of the offense dispenses with a mental element. However, the statute also states “[i]f t he definition of a n offense within this title d oes not plainly dispense with a mental e lement , intent, knowledge or recklessness suffices to establish the culpable mental state.” In this case, the trial cou rt defined the ph rase “sexu al contact,” and stated the “sexual contact” requires the touching to be “intenti onal.” Thus, the culpable mental state is contained in the jury

instructions. The de fendant a lso contends the failure of the tri al court to cross-referen ce the definition of “unlawful” from the jury instruction g iven for aggravate d rape when instructing the ju ry on sexual battery could have confused the jury. The defendant cites State v. Cravens , 764 S.W.2d 754, 756 (Tenn. 1989), asauthority for this proposition. However, in Cravens

the supreme court noted:19 In our op inion, all of the elements of each offense shoul d be described and defined in connection with that offense, although in Martin we d id sugg est that there could be crossreferencing or repetition in connection with the lesser offenses since j ur y instructions in felony cases are required by

statute in this state to be

written and physically

delivered to the jurors for use in their deliberations. 764 S.W.2d at 756. It was not necessary t

o redefine the term “unlawful” because it is a word “in common
use and can be understood by people of ordinary intelligence, [there f ore] it is not
necessa ry, in the absence of anything i n the charge to obscure their meaning, for the court to define or explain the terms.” State v. Raines , 882 S.W.2d 376, 383 (Te nn. Crim. App.), per . app . denied (Tenn. 1994); State v. Braden , 867 S.W.2d 750, 761 (Tenn. Crim. App.), per . app . denied (Tenn. 1 993). Further, it is generally harmless error where the court simplyfails to

repeat a

defi ni tion already giv

en. State v. Nichols , 877 S.W.2d 722, 735 (Tenn. 1994), cert
. denied , 513 U.S. 1114, 115 S.Ct. 909, 130 L.Ed.2d 79 1 (1995); State
v. Wright , 756 S.W .2 d 669, 675 (Tenn. 1988); State v. Laney , 654 S.W.2d 383, 388-89 (Tenn. 1983). T aken as a wh ole, it is clear the charg e adequately defined the cri me of sexual ba ttery. This issue has no merit.

D.

The defendant next contends the trial court committed err or of prejudicial dimen sions by fa iling to ch arge the ju ry on aggrava ted sexua l battery, a Class B f elony. Tenn. Code Ann. § 39-13-504. This cour t disagrees. While agg ravat ed sexual battery is a lesser included offense of aggr avated rape, State v. Banes , 874 S.W.2d 73, 79-80 (Tenn. Crim. App. 1993), per . app . denied (Tenn. 1994); State v. Edward Eugene Clark , Hamilton County No. 1066,1988 WL 90448 (Tenn. Crim. App., Knoxville, Sept. 1, 1988), the defendant was not entitled to an instruction on this lesser included offense based upon the evidence. As this cou rt s tated in State v. Wright , 649 S.W.2d 22, 24 (Tenn. Crim. App.), per . app . denied (Tenn. 1983): “The proof clearlymakes out the offense fo r which the defendant was convicted, and there was no20

credible view

of the evidence under whi ch the defendant could have beenfound guilty of
a lesser offense.” (emphasis added)

. But see Johnson v. S t ate , 531 S.W.2d 558, 559 (Tenn. 1975); State v. Atkins , 681 S.W.2d 571, 577 (Tenn. Crim. App. 1984), cert. denied , 470 U.S. 1028, 105 S.Ct. 1395, 84 L.Ed.2d 784 (1985); State v. Roy L. Sherrod , Shelby County No. 02-C-01-9510-CR-00331, 1996 WL 417661 (Tenn. Crim. App., Jackson, July 26, 1996), per . app . denied (Tenn. 1997). In Good v. State , 69 Tenn. 293 (1878), the supreme cou rt explained an excepti on to the statute requir in g instructions on less er included offenses and lesser g rades of offenses: Thi s is a wise statute made for the protection of the accused

in all cases in which the facts may demand its application. I ts purpose is to secure to the defendant the benefit of all the law applicable to the facts of his case, without any request onhis part. It was not intended, however, to call from the court a charge upon hypothetical questions not suggeste d by proof. When it is clear that

the grade of offense charged is pr oved,

.

. . to ch arge the law pertaini ng to such lesser gr ades wou l d simplytend to c

onfuse an d mislea

d the jur y, and o ft en r esult in verdicts inadequat

e to the crime actually committed . . . . When the offense charged is beyond co n tr oversy made out and is complete, it is the duty of the court to confine its charge to such case . . . [so] that the jury may be enabl ed to decide intelligentlythe single question pres ented and not be mystified by abstractions. Good , 69 Tenn. at 294-95. In the present case there is no ev idence in therecord disputing sex ual penetration of the victim occurred. Therefore, no jury charge on sexual battery or a

ggravated sexual battery was war

ranted. The victim was the

only person who ga

ve testimony regar

ding the rape. The victim stated the defendant penetrated her three timesin three different positions. The d efendant refused to testif y. No other evidence was introduced whi ch disputed the victim’s depiction of the events on November 18, 1995

. Since no evidence was introduced disputing sex ual penetration, the jury had to either be lieve the victim’ s version of the events or

discredit her view entirely. The defendant woul d be guilty of aggr avated rape, rape, or no offense. See State v. Larry Fields , Fayette County No.11, 1991 WL 35747 (Tenn. Crim. App., Jackson, Mar. 20, 1991), per . app . denied (Tenn. J uly 1 , 1991); Stat e v. David H. Ow en , Knox21

County No. 1209, 1989 WL 54805 (Tenn. Crim. App., Knoxv ille, May 26, 1989), per . app . den ied (Tenn . October 1, 1989). Therefore, the t rial court’s failure to charge the jury on the offense o f agg ravated sexual battery was not error and the c harge given on sex

ual battery was superfluous

. The issue is without meri t.

VI.

The defendant contends the trial court improperl yexcluded evidence purs uant to Tennessee’s rape shield provision, Rule 412 of the Tennessee Ru les of Evi dence. The defendant argues the trial cour t er red by ruli ng that the proffered testimony of thr ee witnesses

was inadmissable to show the victim’ s consent to the sexual actions in question. The de fendant predicates this argument upon the alleged prior sex ual conduct betwee n the victim and the defendant. The defendant also argues this testimony was admissible to imp each the v ictim, either as prior inconsistent statements or as statements demonstrating bias or prejudice sinc e th e v ictim denied prior sex ual conduct with the defendant. Tenn. R. Evid. 613, 61 6. The defendant alleges the trial c ourt’s limitations upon cross-exam ination and impe achment of the vic tim in thi s regard de prive d t he defendant of his right to confrontation and right to a fair trial.

A.

The Tennessee Rape Shield Law, Rule 412 of the Tennessee Rul es of Evidence, governs the procedure to be followe d when determining the r elevance of a victim’s prior
sex ual behavior when the defendant i s accused of aggravated r ape, aggravatedsexua l battery, sexual battery, spousal sexual offenses, or the attempt to com mit any such offense. Tenn. R. Evid. 412. The pol icyunderlying the rule is the striking of “a balance between the paramount interests of the accus ed in a fairtrial and the important inte rests of the sexual assault v ictim in avoiding an unnecessary, degrading , and embarrassing invasion of sexual privacy .” Advisory Commi ssion Commentsto Tenn. R. Evid 412. The22

portion of the rule relevant to the present case states:

Evidence of specific inst ances of a

victim’s sexual behavior is inadmissible unless admitted in accordance with the proceduresin subdivision (d) of this rule, and the evidence is: (3) If the sexual behavior was wi th the accused, on the issue of consent . . . . Tenn. R. Evi d. 412(c

)(3). Subdivision (

d) of t he rule pr ovides the defendant must file a written motion to offer evi dence no later than ten days be fore trial, except: the court may allo w the motion to be made at a later date, including during trial, if the court determines either that the evidence is newly disc overed and could not have been obtained earlier through the ex ercise of due diligence or that the issu e to w hich such evidence relates has newly arisen in the case. Tenn. R. Evid. 412(d)(1) (i). The motion must be accompa nied by a writt en offer o

f proof. Tenn. R. Evid. 412 (d)(1) (iii). The trial cour t is required to hold a he aring outside t he pre sence of the jury to determine the admi ssibility of the evi dence. Evidence of prior sexual conduct between the vic tim and the accused will only be admitted intoevidence if the trial court determines ( a) the evidence is rel evant to the issue of consentand (b) the probative value of the ev idence outweighs its

prejudicial effect.
(1)

In the present

case, the defendant

failed to follow the requi rements of Rule 412(d) because the defendant failed to file a motion for a Rul e 412 hearing at least ten days prior to trial. The defendant served the State of Tennessee with a motion for a Rule 412 hearing during the trial and fail ed to submit a wri tten offer of proof with the motion. The defendant failed to serve the vi ctim with a copy of the motion until the trial court required the defendant to do so. The trial court required defense counsel to use a lunch recess for the purpose of preparing a written offer of proof which is mandate d by the rule. The trial court exercised great leniencyin permitting a Rule 412 hearing. There was
no indication the proffered testimony was newly dis

covered or the evidence could not have been obtained earlier through the ex ercise of due diligence. Defense counsel explained the lack of notic

e by statin g: “I want the Court t o note my

objections, that the continuance23

was denie d and that I’m be ing left in a posture, I hav e not been able to comply w ith the Procedural Evidentiar

y Rules.” Never

theless, the trial court

allowed a Rule 412

hearing, stating “[t]his r

equest for a Rule 412 hear ing comes l ate, but I ex ercise my

discretion and grant the hearing because of the great seriousness of this particular case.” The policies behind the rape shi eld law require str ict compliance with the procedures set forth in Tenn. R. Evid. 412(d). “[P]ri or sexual b ehavior with others by the victim is altogether

inadmissable unless there i s complianc e with Ru le 412(d) . . . .” State v. Ste phen Ray

Stamps , Henry County No. 02-C-01-9301-CC-00002, 1994 WL 59451 (Tenn. Crim. App., Jackson, March 2, 1994) , per . app . denied (Tenn. July 18, 1994). See State
v. Gu ssie Willis Vann , Morgan County No. 03-C-01-9504-CR-00111, 1995 WL 548 83 0 (Tenn. Crim. App., Knoxvil le, Sept. 18, 1995). Therefore, the tr ial cou r t’s exercise of its discretion was limited to determini ng whether the testimony presented in the offer of proof
was newly discover

ed evidence or evidence which could not have been d iscovered beforeh and with th e exercise of due diligence. Tenn. R. Evid. 412(d)(1)(i). The record does not indicate whether thi s is what the trial judge meant when he stated he would use “his discretion.” Thi s court will now

proceed to evaluate the merits of the trial court’s r uling on the proffe red testi mony. (2)

The defendant argues the trial cour t erred by excludi ng the testimony of Brenda Dishman, the defendant’s aunt, Dona ld Dishman, the defendant’s uncle, and Timothy Nichols, the husband of the defendant ’s cousin, regarding prior acts of sexual conduct between the victim and th e accused. It was offered to establish the victim consented to the sexual penetration. Tenn. R. Evid. 412(c)(3). Brenda Dishman testified the vic tim had visited her home, but she did not know

if the defendant and victim had sexual relations in her home. She w as not athome when the victim visited her home. When Ms. Dishman w as questioned regardingwhether she had inquired if the victim had engage d i n sexual relations w ith the defendant, she answered “No, she volunteered to t old [sic] it. Because Ben was married at that time, too, she told24

that. This particular t hing. ” Donald Di shman testified the victim had asked him “if all the Dishmans was [sic] great lovers like Ben.” Timothy Nichols testified the victim spoke wi

th him on the phone and told him how ma ny times she had sexual relations with the defendant and gave details about the encounters. The trial court ruled the proffered testimony was vag ue and failed to demonstrate any prior sexual c

onduct between the defendant and the v ictim. The trial court s

tated: There’s no evidence that this defendant ever had sex with this vic tim, Ms. Reed, except on Nov ember the 18th, 1995, at which time, under thi s evid ence, she’s brutally be aten in the earlywinter, escaped naked and r an down t he stre et to be saved by on ofher neighbors. But the i ssue ofconsent is not an issue in this ca se under this ruli ng.
The defendant contends t he proffered testimony of prior sexual conduct is ad missible pursuant to State v. Shockley, 585 S.W.2d 645 (Tenn. Crim. App . 1978)

. However, Shockley

was decided before the Tennessee Rules of Evidence were adopted. Further, Shockley

addressed a narrow factual scenario falling outside the rape shield law in effect at the time. The appellant in Shockley did not attempt to introduce pr ior se xual activity by the victim in order to demonstrate consent. The appellant sou ght to introduce evidence of prior sexual activity during the time in which the victim became impregnated in order to establish wh ether the pregnancy w as caused by the r

ape orby other sexual activity. 585 S.W.2d at 651. The de fendan t in the present case does not fall within the
narrow except ion carved ou t of the r ape shie ld laws by Shockley . Here, the defendant attempted to introduce the evidence of prior sexual activity

to show consent. The situation is governed by Ru le 412, not Shockley

. “The question of whether evidence is admissible rests within the sound discretion of the trial court; and this Court will not interfere with the exercise of this discretion unless clear abuse appears on the face of the record.” State v. Hill , 885 S.W.2d 357, 361 (Tenn. Crim. App. 1994). No such clear abuse appears on the face of the record in this case. The trial cou rt heard the defendant’s offer of p roof and conducted a proper analysis pursuant to the rules of evi dence. This issue is without merit.25 B.

The defendant argues that several portio ns of testimony and pieces of evidence from the Rule 412 hearing shoul d have been admitted to show bias or prior inconsi stent statements. Tenn. R. Evid. 613,616.
(1)

A trial judge must find that evidence is relevant before the evidence is admissi ble. The term “relevant evi dence” is defined as “evid ence having any tende ncy to make the existence of any fact that is of consequence to th e determination of the action more probable or less probable than it w ould be without the evi dence.” Tenn. R. Evid. 401. In short, evidence is re levant if it tends to prove a material issue. Advisory Commission Comments to Tenn. R. Evid. 401. The Tennessee Supreme Court analyz ed the competing interestsbetween a

defendant’s right to confrontati on and cross-examination and the need to exclude irrelev

ant evidence in State v. Sheline , 955 S.W.2d 42 (Ten n. 1997). The court stated: The United States Supreme Court has said that “the rights to

confrontand cross examine wi tnesses and to call witnesses in one’s own behalf have long been r ecognized as essential to due process,” and emphasized that the denial o r “ significant diminution”of these rights “calls into question the ultimate integrity of the fact finding p rocess and requires tha t the competing interest be closely examined.” This does not mean that a defendant has a rig ht to present irrelevant

evidence. Moreover, the Supreme Court has recognizedtha t ev en the right to present relevant evidence “may, in an appropriate case, bow to accommodate other legitimateinterests in the crimi nal trial process.” For instance, a trial judge has the dis cretion “to limit reas

onably a criminal defendant ’s ri ght to cross-examine a witness ‘based on concerns about, am ong other things, harass ment, prejudice, confusion of the issues, the wit ness’ safety, or interr ogation that is repetitive or only marginally relevant.’” 955 S.W.2d at 47 (citation s omitted). Rule 613 of the Tennessee Rules of Evidence permits the use o f prior inconsistent statements to impeach a witness. The oppo sing party may i nterrog ate the wit ness regardingsuch statements as long as the witness is “afforded an opportunity to explai n or26

deny the same.” Tennessee Rule of Evidence 616 states “[a] party may off er evidence by
cr oss-examination, extrinsic evidence, or both, that a witness is biased in favor o f o r prejudiced against a party or another witness.” The determination of

the relevance of evidence, as well as the propriety, scope , and
manner of cross-examination, are left to the sound discr etion of the trial judge. State v. Hutchison , 898 S.W.2d 161, 172 (Tenn. 1994), cert
. denied , 116 S.Ct. 137, 133 L.Ed.2d 84 (1995); State v. Harris , 839 S.W.2d 54, 72 (Tenn. 1992), cert
. denied , 507 U.S. 954, 113 S.Ct. 1368, 122 L.Ed.2d 746 (1993); State v. Leath , 744 S.W.2d 591, 593 (Tenn . Crim. App. 1987), per . app . denied (Tenn. 1988); Gray v. State , 191 Tenn. 526, 235 S.W.2d 20 (1950). Such rulings will not be overturned on appeal abs ent a clear showing o

f an abuse of discretion. State v. Caughron , 855 S.W.2d 526, 541 (Tenn.), cert
. denied , 510 U.S. 979, 114 S.C t. 4 75, 126 L.Ed.2d 426 (1993); State v. Williamson , 919 S.W.2d 69, 78 (Tenn. Crim. App. 1995); State v. Hayes , 899 S.W.2d 1 75, 183 (Tenn. Crim. App.), per . app . denied (Tenn. 1995). (2)

The defendant first contends the trial court should not have excluded the

testimony
o f Bre nda Dishman that the victi m stated “the best relationshi p she had with [the defendant] was when he was i n the penitentiar y” and she was “hurt” because the defendant was married. These statement s are not inconsistent with prior statements made bythe victim nor are they probative of bias. The vi ctim had counseled the defendant and assis ted with his progress while he was in prison. When he received parole, the victim provided him with a

tem porary residence. Ho wever, the defendant began dr inking and smoking marijuan a, ther eby causing a strain on the friendship. The victim did not make
a statement contradicting tha t she was “hurt” by th e defendant’s marriage because she did not testify regarding how she felt about the defendant’s marr iage. Further, both stat

ements were vague and ambig uous, and were therefore not r elevant to the issue of consent. The defendant next argues it w as error for the trial cour t to exclude a Thanksgivi ng card the victim sent to the defendant stating, “I ’m glad you ca me into my life.” The defendant all eg es the card was admissible as a prior inconsistent statement to impeach27

the victim’s testimony

that she only loved the defendant “as a parent would l ove a child.” The notation on the Thanksgivi ng card doesnot constitute a contradicto ry statement and does not indicate the victi m and the defendant had a romantic relationship. This piece of evidence is also irr

elevant. The defendant also argues the tri al court should have admitted evi dence that the victim discontinued giving money to the defendant after he was r eleased from prison. He argues such evi dence is relevant to show the v ictim’s bias after learni ng the defendant married another woman. There is no indication in the record that the discontinuation of this financial support was related to the defendant’s marriage. The defenda n t had been released from pris o n and was able to seek employ ment and provide for himself. In addition, whether the victim discontinued providing financial support to the defendant is not relevant to consent. The tr ial court did not err i n excluding this ev idence. The def endant al so sought to introduce all egations made by the vi ctim’s ex-husband during cross-ex

ami nation. The victim’s ex-husband alleged she “was i n love with an inmate” in divorce documents. This stat ement is vague, non probative and irrelevant. The allegation did not sp ecify any p articula r individu al the vict im allege dly l oved. Itis also hearsay. This evidenc e was properly ex

cluded. The defen d ant argues that statements made by the victim’s ex-husband to the ef fect the victim had deplet ed marital asse ts by incurring large phone bills should have been admitted into evi dence. Such statements are not re levant to the issue of whe ther the victim consented to sexual intercourse w ith the defendant. They were not admissible to impeach the victim. She admitted s he accepted collect phon e calls from the defendant. The allegations did not sufficiently demonstrate bias. Finally, the defendant contends the trial cour t should have permitted testimony by the defendant’s uncle that he met the victim at a Hardee’s restaur ant. The defendant argues that such testimony would have impeached the credibility of the victim. The victim testified she did not recall meeting the defendant’s uncle at the restaurant. Such testimony is compl etely irrelevant to the material issues of this case. The trial court did n ot err i n excluding this testi mony. There was no abuse of discretion by the trial court i n ruling on the admissibility of28

evidence. The trial c

ourt proper

ly limite d the cross-examinatio n of the victim. Tenn. R. Evid. 611; State v. Lewis , 803 S.W.2d 260, 262 (Tenn. Crim. App. 1990). This issue has no merit.

________________________________________ JOE B. JONES, PRESID ING JUDGE
CONCUR:

___________________________________ PAUL G. SUMMERS, JUD GE

___________________________________ CURWOOD WITT, JUDGE