### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON April 2000 Session
STATE OF TENNESSEE v. JAMES RA YMOND SNIDER
Appeal from the Circuit Court for Madison County No. 98-630 Roy B. Morgan, Judge

No. W1999-01849-CCA-R3-CD - Decided August 18, 2000

The defendant was found g uilt y of rape of a child and aggravated sexual battery. He appealed, arguing that the evidence was insufficient to support a guilty ve

rdict and that the

trial court erre

d in allowing the victim’s mother to testify to

hearsay stateme

nts made by the vict

im, in prohibiting the defendant from questioning th

e victim’s mother a

bout s exual abuse

in her childhood, a

nd in sentencing the defendant in an excessive manner on the rape conviction. We concl ude tha t these issues are without

merit and affirm

the judgment of the

trial court. Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed

A LAN E. G LENN , J., delivered the opinion of the court, in which D AVID H. W ELLES and D AVID G. H AYES , JJ., joined.

Steve McEwen, Mountain City, Tennesse

e (on appeal); Ge

orge Morton Googe

, District Public Defender; and Stephen Spracher, Assistant Public Defender (at trial and on appeal) for the

appellant, James Raymond Snider.

Pau l G. Summers, Attorney General and Reporter; Tara B. Hinkle, Assistant Attorney General ; James G. Woodall, District Attorney General; and Jody S. Pickens, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION The defendant, James Raymond Snider, was indicted for two counts of rape of a child less than thirteen years of

age in violation of Tennessee Code Annotated § 39-13-522. After a two-day jury trial, the defendant was convicted of rape of a child, a Class A felony, and aggravated sexual battery, a Class B felony. The jury assessed a fine of $50,000 for the rape conviction and $25,000 for the aggravated sexual battery conviction. The defendan t wa s sentenced to twenty-two years incarceration

for the rape and eight years for the aggra v ated sexual battery, to be served concurrently. On appeal, the de

fendant raises t

he following four

issues:1 It is the pr actice of this cour

t to use onl

y the ini tials , rather

than the name,

of a chil

d victim t

o protect t

he victim' s identi

ty.
2 The medical rec ords from th e victim's vi sits to t he clinic were admitt

ed through the testi

mony of Joyce Springfield, one o f the clinic's nurses.
-2-

I. Whether

the evidence is legally sufficien t to support the guilty verdict against the defendant for rape of a child and aggravated sex

ual assault;

II. Whether

the trial court erred by al lowing the victim' s moth er, Martha Stoots, to testify as to statements made t o her by the alleged victim, R.S.; 1

III. Whether

the trial court err ed by ruling it irrelevant

and, therefore, prohibiting the defendant from questioning Martha Stoots about sexual a

busecommitted against

her in her childhood; and

IV. Whether the sentence imposed for the rape conviction was excessive. After careful review of the record and the law, we affirm the judgment of the trial court.
FACTS

The victim, R.S., was tak en to the Care South Bemis Clinic by he r mother, Martha

Stoots. 2 Mary Ann Bond, a family nurse pr actitioner at the

clinic, testified

that she remembe

red seeing R.S. for the first time on Ma

y 11, 1998, with comp

laints of burning upon urination and drops of blood
o n tissue paper and in her underwear. Bond examined R.S.'s genital area and did not notice an y vaginal discharge or blood. When she attempted to do a urinalysis, R.S. began to cry, and, at that point, her mother told

Bond that she thought her daughter had been the victim of sexual molestation. When Bond con ducted an external examination of R.S.'s genitals, she noticed a small abrasion aroundthe clitoral area, which was not bleeding at the time. The child's hymen was intact and there
were no abrasions aro

und the hymen or the

vaginal opening. Fr

om what s he found during the examination, Bond testified that she could not tell what caused the abrasion in the clitoral area. Upon cross-examination, Bond stated that the initial history she got from R.S. and her mothe r was that R.S. hurt herse

lf on a tire swing. The references to sexual molestation did not come up until Bond attempted to get a

urinalysis from R.S. At that point, R.S. became very upset, and her mother3 At a later point in her testi

mony, Mrs. Stoots

stated that it

was May 9, 1998, that she fou nd bloo d on the toilet.

4 On direct examination, Mrs. Stoots refer

red to Mary Flowers as a physici an, but on cr oss-examinat

ion, it was revealed that Ms. Flowers is not a physician but a nurse practitioner.
-3- then said she thought her daughter had been molested by a family friend. Bond testified that the abrasion she found on R.S.'s clitoral area could be co nsi stent with a tire swing injury or sexual molestation, as this type of abrasion occurs when the clitoral area is stimulated or roughly rubbed. The next witness called by the State was the victim's mother, Ma

rtha Stoots. She testified that R.S. was eight year

s old at the time of tr

ial. Mrs. Stoots stated that R.S. is the oldest of her three children and that she, her husband, and the children live in her home. She identified the defendant
as a family friend whom she had known for five or six years. The de f endant was at her home a number of times and even s

lept there on occ

asion. In May 1998,

the defendant ha

d his computer

in the Stoots' den.

Mrs. Stoots remembered that, on May 8, 1998, 3 seven-year-o ld R.S. was acting "funny" and kept going to the bathroo

m. Mrs. Stoots stood by the ba throom door and wa

ited for R.S. to

come out. When she entered

the bathroom, Mrs.

Stoots saw blood on the co mmode seat. She took

R.S. into the bedroom and asked her what happened. After speaking with her daughter, Mrs. St oots became concerned and called Mary Flowers, a friend and her husband's nurse practitioner. 4 Flowers
came to the house

and talked to and examined R.S. The child was subsequently taken to Care South Clinic.

Mrs. Stoots remembere d that she saw the b

lood over a week

end and took R.S. to the clinic the very next Monday. She stated that she has noticed changes in her daughter since May 1998, in that the child has nightmares and is very scared and withdrawn. At the time of trial, the child was in counseling.

Over the hearsay objecti

on of defense co

unsel, the trial court allowed Mrs. Stoots to testify
on redirect as to what R.S. told her that caused her to suspect that the defendant had molested her daughter. Mrs.

Stoots testified that R.S. told her that the defendant “caught her going out the den door, pulled her over to

his chair and put his hands in her pants . . . and hurt her.” H er daughter said that “it hap pe ned that day while [the defendant] was there on his computer.” Mrs. Stoots did not question the defendant a

bout this b ut r eported it to the police. R.S. referred to the defendant as “Superman,” which was his CB radio “handle.”

The trial court then c

onducted a jury-

out hearing to dete

rmine if the victim,

R. S., wa s competent

to testify. After the court was satisfied that she was co mpetent to testify, R.S. was questioned by the State. R.S. stated thatshe was eight years old and was in the second grade. She identified the defendant,

whom she calls “Superman,” and stated that he was a friend of her family. The victim remembered that, on a weekend right before school was out the year before, she told

her mother that “Superman” had stuck his finger in her “privates.” She testified that she was in the den at her house when the incident occurred. Her mother, father, and brother were at home at the time,-4-

butonly the defenda

nt was in the room wi

th her. R.S. state

d that she was standing up when the defendant touched her, and she had her clothes on. The defendant also put his han ds inside her clothes and put his finger in her “privates.” She stated that the defendant had done this before but didnot know when that occurred. A lthough she did not c

ry, it hurt when the def

endant did this to her. She stated that it also hurt the previous time

the defendant pu

t his finger inside h

er. The victim denied that the defendant touched her anywhere else on her body. She remembered talking to the doctor about this after she told her mother.

On cross-examination, R.S. testified that there was a tire swing in her yard but denied that she had ever hurt or scraped herself on the swing. R.S. testified that s he was not roughho

using with the defendant when he hurt her. Upon further q uesti oning by defense counsel, R.S. remembered telling the story about wha t happened that d

ay many times and admitted that she really did not remember what happened in the den.

On redirect, R.S. stated that she was telling the truth and remembered the defendant putting his finger in her while in the den that day. She then testified that this had happened onfive different days around the same time period. She denied touching the defendant in any way and stated that

she
was playing with him

but not wrestling. She remembered telling her mother the day in question and remembered telling Lieutenant Arnold what had happened.

John Arnold, a

lieutenant with the Madison County Sheriff’s Department, testified that on May 12, 1998, he took the initial complaint from Mrs. Stoots and conducted aninvestigation, which included interviews with Mrs. Stoots, R.B., and the defendant. At trial, he identified thedefendant and stated that he learned that the defendant’s nickname was “Superman.”Arnold interviewed the defendant at the sheriff’s department on the day of the complaint as well. The officer stated that the defendant came in voluntarily to talk with the authorities.

After the interview, the defendant was taken into custody. Lieutenant Arnold read into the record the admonition and waiver form that was used to advise the defendant of his

constitutional rights prior to

taking a statement from him. The defendant’s signature appeared on the form, which
was witnessed by Lieutenant Arnold and Sergeant Anthony Heavner, and it was noted on the form that he signed it on May 1 2, 1998, at 3:15 p.m. Once he signed the waiver, the defendant gave a statement to the officers in

the presence of

Ms. Woodbury, the secretary in the criminal investigation division. Before signing the statement, the defendant was given an opportunity to review the statement and mak

e any necessar

y changes.

The defendant’s sta

tement, which was

given at 4 : 00 p.m. on May 12, was read into the record. In the statement, t he defendant ad

mitted putting his han

d inside R.S.’s short

s and touching her vagina on the previous Friday or Saturday. He did not remember putting his finger inside her vagina but stated he could

have done it

accidentally. Healso admitted touching her chest and putting R.S.’s hand on his penis out side of his clothes

. The defendant a dmitted touching R.S.

in her vaginal area on another

occasion about tw

o weeks prior to

this incident, but he stated that he did not think he to uch ed her under her clothes. He state

d that he may have

kissed her on the f

orehead while touching her. The defendant ended his statement by admitting that he knew what he was doing was-5-

wrong and did not know why he did it. He expressed remorse and stated that he felt like he needed he lp. The defen dant was arrested that day and charged with the crimes in the indictment. The defendant did not make any corrections to his typed statement and adopted it with his signature. No force or coercion was placed on the defendant to sign the statement, and he always had the option notto sign it. Accor ding to Lieutenant Arnold, the wording of the defendant’s statement was not exactly, word for word, how he answered the questions asked but reflected what the secretary put down based on what she was hearing during the discussion.

Lieutenant

Arnold denied tha

t the defendant w

as promised a

certain bond amount if he signed the statement. He stated that, if asked, the officers would te

ll a person charged with a crime that the judge would be told at ar raignment that the

defendant had c

ooperated but the office rs had no authority to recommend a bond amount. The officer denied that the defendant was told that

his bond might be $50,000-$100,000 without that recommendation, that he woul d sit in jail for up to two years if he could not

make bond, or that he could get a reasonable bond if he signed the statement and could get out of jail to prove his innocence.

The last witness for the Sta

te was David Lloyd Stansell, a relative of the victim’s family. He stated that he was at the Stoots’ home on Saturday around Mother’s Day in 1998. When he arrived at the home, Stansell s

aw the defendan

t’s wrecker pull

ed over to the lef

t side of the lot. Stan

sell had known the defendant for about six or seven months through visiting the Stoots’ home. As Stansell walkedthrough the front

door, the defendant was sitting on the couch facing the television. R.S. was also in the room. Stansell noticed that the defendant looked “like he had seen a ghost, and he was real nervous. . . .” Stansell asked the defendant if something was wrong, and he replied “no.” He identified “Superman” as the defendant.

On cros s-examination, Sta nsell admitted givin

g a statement to the

prosecutor in whi

c h h e stated that the date of the incident was Friday, May 8, and not Saturday, May 9. Stansell said that he knew it was a weekend and that it was May 8, whether that was Friday or Saturda y. The State rested its case.

The de fendant testified in his own behalf. He stated that he drove a wrecker for Highwa y 70 Wrecker Service and worked 8:00 a.m. to 5:00 p.m. Monday through Friday and was on call at night, including weekends. He had known the Stoots family for as long as he could remember, and they were like a sec

ond family

to him. According to the d efendant, the Sto

ots children were

like his littlebrothers and sister. He would wrestle with all three children, let them jump on him, and toss them on the couch, because Mr. Stoots’ condition would not allow him to do that with the children. The children also played this way with James Burrows, who spent a lot of time at the house. When the defendant playe d with the c hildren, he would hold them under their arms or by the legs. He denied ever touching any of the children in a sexual area.

The defendant stated that he had a comput er i n the Stoots’ den, a

nd the children wo

uld roughhouse

with him there as we ll. On Saturday, May 9, 1998, the defendant recalled playing outside for

thirty-five or fo

rty-five minutes o

n a little golf cour

se Mr. Stoots built in

the backyard. Mr. and Mrs. Stoots then t ook the children w

ith them to M cKenzie’s Mar ket. When the Stoot

s5 During James B urrow s’s testimon y, the jury w as told that P amela w as Burro ws’s fianc ee. -6- returned, the defendant had Mrs. Stoots take pictures of him and talked to Mr. Stoots outsidebefore go ing back in side. Mrs. Stoots and R.S. were in the ba

ck bedroom, and th

e defendant told M

rs. Stoots he was leaving to run errands. He mailed some items, ate lunch, handled a couple of wrecker calls, and went home. Ar ound 5:00 or 5:30 p.m. , the defendant lo aded h is bowling ball in the wrecker and went back

over to the Stoots’ house. He estimated his arrival time at 5:15 or 5:30 p.m. A man known as “Fishin

g Dude” and his mo

ther, Mary F lowers, were the re. Others at the

house included James Burrows,

Pamela, 5 and a child who came with Mary Flowers. The defendant stayed for dinner and estimated that he left the Stoots’ home

around 9:15 to

9:45 p.m. to answer

a call to
a wreck scene. He did not reme mber anything diff erent about the Sto

ots’ behavior tow

ard him between 5:30 and 9:00 p.m. Th e first time

he heard about the allegations was when he was arrested on Tuesday.

The defendant described how he was summoned to the main office at work on Tuesday and told by Sergeant Hea

vner that he nee

ded to go downtown w

ith him. Upon arriving at the sheriff’s department,

the defendant was taken to Lieutenant Arnold’s office who told the defendant they had to do some paperwor

k before he coul

d tell him why he was there. Arnold re ad the defendan

t his rights and had him sign the form before he would talk to him about the allegations. The defendant signed t h e form between 3:00 and 3:20 p.m. When Arnold told the defendant that he had been accused of molesting R.S., the defendant initially denied it.

W hen asked by defense

counsel why he ha

d signed a confes sion only forty-fiv e minutes l ater , the defendant explained that he was scared and had already waived his right to an attorney. When told that the Stoots alleged that the molestation occurred on a Friday, the defendant told the officers that they could check with his employer to see that

he was not at work that day. According to the defendant,

Lieutenant Arnold left the room at that point, possibly to talk to the Stoots, and Sergeant Heavner began talking to him. Heavner told the defendant that he needed to help himself, be

cause he could sit in

jail for a year or two before trial and would not be able to prove his innocence. The officer told the defendant

that they [the officers] were trying to help him possibly get his bond set where he could ma

ke bond and prove

that he did not moles

t R.S.

He stated that he was never told he was under arrest during the questioning, but he assumed he was when the officers read him his rights. He testified that h e only signed the c

onfession becau

se he was afraid and

wanted to get a lower bond so he could get out to prove his innocence. The defendant testified that h

e knew the statement was not true when he signed it. He denied doing anything sexual with the Stoots children. On cross-examination, the defendant stated that Lieutenant Arnold read him his rights, and he identified his signa

ture on the waive

r form. The defendant did not remember beingtold that he could have an attorney but admitted that the form stated that he

had that right. He

also identified his signature at the end of his statement given to the officers. He agreed that the officers gave him the statement to review and that he made no changes to it. The defendant admitted telling the sheriff’s-7-

department

the details of

the incident that were contained in his statement but stated at trial that he had lied to get out of jail. At the time he signed the statement, he did not tell the officers that it was a lie or that he was doing so just to get out of jail.

When asked by the prosecutor to explain whe re he got the details in the statement, the defendant testified that Lie

utenant Arnold

had questioned him about the specifics tha

t R.S. had told the offi cer, and he just agreed with what was said. The defendant remembered that Ser gean t Heavner recommended a bond amount that the judge agreed to. He admitted that, in the year since his release fro

m jail, he never we

nt back to see the officers to change his statement or to tell them that he had lied. The defendant testified that R.S. had lied about the events in her trial testimony. The defendant stated hehad repeatedly told the officers

that he did not moles

t R.S. but decided to sign the waiver and statement anyway after being advised of his rights.

O n redirect by def

ense counsel, the

defendant state

d that Lieutenant A

rnold had “an atti

t ude ” that frightened him. Ac

cording to the def

endant, Sergean

t Heavner did not s

eem m enacing b ut seemed like he was trying to help thedefendant. When his attorneytook him through the various parts o f his statement, the defendant denied volunteering the information and stated that he was merely responding to Arnold’s specific questions based on details given by R.S. When asked why he told the officers that he had molested R.S. on another occasion approximately two weeks prior to the May 9 incident, the defendant testified that he made up the date after Arnold told him of the allegations of

a second incident. Hestated that he fe lt he had no choice

but to sign the statem

ent, because he thought he would have to stay in jail until the trial if he did not sign. He testified that he offered to take a polygraph test, which was declined. The defendant admitted that he never asked his attorney to change his statement but pled not guilty.

The final witness f

or the defense

was James Burrows who had known the Stoots for about four years. Burrows remembered being at the Stoots’ house on the Saturday before Mother’s Day, May 9. He arrived in the afternoon between 3:00 and 4:00 p.m.. “Fishi

ng Dude,” Mary Flo

wers, Mr. and Mrs. Stoots, and the children were all there. Prior to the alleged molestation, Burrows stated that he had a good relationship with the Stoots children and would roughhouse with them. Burrows remembered

seeing the childrenaroundthe defendant that day and did not notice anything unusual in their actions. How

ever, he did reme

mber th e Stoots telling him on Saturday that they had something to tell him th

at would “blow [his

] mind.” When the de

fendant came ba

ck to the house after Burrows arrived, no one acted differently toward him.

The State calledSergeant Anthony Heavner as a rebuttal witness. He recalled being asked by Lieutenant Arnold to sit in on the defendant’s interview as a witness in May 1998. Heavner was present when the defend

ant’s rights were

read to him

and witnessed the execution of the waiver of rights. Heavner testifi

ed that the defen

dant at first

denied committing the crime but then admitted that he did it. The officer

denied that any promises were made to the defendant in exchange for the statement, nor was the defe ndant told he could

get out of jail or ge

t less of a sentence by signing. According to Heavner, the statement was voluntarily given b

y the defendant a

nd was given to

him to review before he

signed it. The defendant did not indicate to the officers that he wanted to make-8-

any changes to the sta

tement or that it wa

s not true; nor did he

come back in the n

ext year to say it was not true.
On surrebuttal by defense counsel, Heavner remembered that the defenda

nt stated, “I coul

d have accidentally, bu

t it was not intention al” in response to a question asking if he could have accidentally

put his finger in R.S.’s vagina. Heavner also denied that he provided information about bond amounts, but he remembered telling the defendant that the court would be advised of the defendant’s cooperation when bond was set. The officer testified that he told the defendant about the factors that were taken into account by the court in setting bond, but the defendant’s conclusion that he would get a lower bond by signing the statement was the defendant’s own conclusion.
ANALYSIS
I. TESTIMONY OF MARTHA STOOTS

The defendant raises two issues of error in the trial cour t’s handling of Martha Stoots’ testimony. Because this testi mony is potentially

part of the evidence we will look at in assessing the sufficiency of t

he evidence, we

will discuss these tw

o issues first.
A. R.S.’s Statements

The defendant argu

es that the trial c

ourt erred in adm

it ting Mrs . Stoots’s testimony recounting what

her daughter, R.S., told her about being fondled by the defendant. In questioning Mrs. Stoots during cross-examination, the defense appears to have inadvertently elicited testimony that R.S. accused the defendant of molesting her. Th e recordshows that the defendant was attempting to ask for a date when Mrs. Stoots’ suspicions arose when he received the answer

about R.S.’s statements. T

he dialogue betwe

en the defense a

ttorney and the wi

tness follows:
Q. So you didn’t notice anything until S aturday. That’s what you’re saying now.

A. I seen the blood Saturday.
Q. And when did you sta rt to suspect that it

was James Snider that had done something to her?

A. When she [R.S.] told me.

The defendant did not voice a form al he arsay objection, but he did say, “I d

idn’t ask that. I asked you whendid you start to suspect. . . .” At this point, the State objected that the question was askedand answered. T

he judge sustained

the objection, and

th e testimony that R.S. made a statement about the defendant was allowed into evidence.-9-

On redirect, the

prosecutor aske

d the following que

stions:
Q. Mrs. Stoots, Mr. Spracher asked you why your suspicions were raised
on Mr. Sn ider, and you said it was because of what she told you. Was “she” being [R.S.]?

A. Yes. Q. What’d she tell you?

At this point, the defe

nse objected, ba

sed on the fact tha

t th e witness’s answer would be inadmissible

hearsay. Because the defense had asked Mrs. Stoots for the basis of her suspicions on cross-examination, the trial judge allowed the testimony on redirect. The witness then testified:

A. She [R.S .] told me that James Snider caught her going out theden door, pulled her o

ver to his chair a

nd put his hands in he

r pants.

. . . . He pulled her over to his chair and put his hands in her pants and hurt her.

In its brief, the State

argues that the defense not only opened the door to this testimony on cross-examination by asking the witness what caused her to suspect

the defendant but also contends that Mrs. Stoots’s testimony was admissible as an exception to hearsay, an excited utterance.

A trial court’s dec

ision to admit eviden

ce and determine

the scope of red

irect w ill n ot be overturned on appeal absent an abuse of discretion. State v. Bigbee , 885 S.W.2d 797, 806 (Tenn. 1994); State v. Chearis , 995 S.W.2d 641, 645 (Tenn. Crim. App. 1999). After careful ly reviewing the record, we con

clude that the tria

l court did not abuse

its discretion and a

ffir m the trial court’s admission of the testimony regarding what R.S. told her mother about the molestation.

On redirect, the defendant did voice an objection to Mrs. Stoots’s testimony regarding the content of R.S.’s statements on hearsay grounds. Because the trial court found that the defendant had raised this issue on cross-examination, the State wa s a llowed to further explore R.S.’s sta

tements to her mother as within the scope of redirect.

The purpose of redir

ect examination is

to clarify the witness’s testimony. See Chearis , 995 S.W.2d at 645. Although the Tennessee Rules of Evidence donot address the scope of redirect, it is well-settled in this state that redirect can broach topics raised on cross-examination, even when the particular matters were not raised during direct examination. Statev. Baker , 966 S.W.2d 429, 433 (T enn. Crim. App. 1997). Because no hearsay objection was made by the defense on c ross
examination to Mrs. Stoots’s testi mony referring t

o what R.S. told her,

the trial court did

not abuse its discretion in allowing the State to explore R.S.’s accusations of molestation on redirect.-10-

Even if the defense ha

d not “opened the d

oor” to this testimon

y on cross-examin

ation, Mrs. Stoots’s statements about what R.S. told her would have been admissible for other reasons. The defendant correctly points

out that the “fre

sh complaint”

doctrine has been abandoned in Tennessee in cases involving child sexual abuse; however, this type of stat ement from a child victim is adm issible

as substantive evidence, if it satisfies some hearsay exception, and corrobora tiv e evidence, if it qualifies under the prior consistent statement rule. State v. Livingston , 907 S.W.2d 392, 395 (Tenn. 1995). Tennessee Rule of Evidence 803(2) carves out an exception to hearsay f or statements

“relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” The rationale for admitting these “excited utteran ces” is that reflection and fabrication are not likely when a declarant spontaneously m ake s a statement in response to an exciting event. State v. Gordon , 952 S.W.2d 817, 819 (Tenn. 199 7) (quoting Cohen, Paine & Sheppeard, Tennessee Law of Evidence § 803(2).1 at 532 (3d ed. 1995)). Additionally, such a statement is usually made whe

n an event is still

fresh in the declarant’s mind. Id. Mrs. Stoots’s daught

er said that the a

busehad occurred earlier that same day when she saw the blood on the toilet se

at.
There are three requ

irementsfor hearsay to be admissible as an excited utterance: (1) there must be a startli

ng event or cond ition; (2) the statement must be related to the startling event or condition; and (3) the state ment must

be made while the declarant is under the stress or excitement of the event or condition. Gordon , 952 S.W.2d at 820. Although the startling event is usually the act upon which the legal controversy is based, such as an assault, a subsequent startling event that is related to the prior event can also produce an ex cited ut terance that falls within the exception. Gordon , 952 S.W.2d at 819. For example, a beating victim’s statement could be an excited utterance related to the startling event of seeing the defendant’s picture, even when a significant amount of time has lapsed between the beating and the victim’s seeing the picture. Id. (citing United States v. Napier , 518 F.2d 316 (9 th Cir.), cert. denied , 423 U.S. 895, 96 S. Ct. 196, 46 L. Ed. 2d 128 (1975), in which the victim did not see the picture until after hospitalization). A suspect returning to th e scene of a crime can a

lso be a startli

ng event that spawns excited utterances from a victim. Id. (citations omitted). A child rape victim’s painful ur ination after goin

g home and taking a bath has also been held to be a startling event that spawned an excited

utterance. Gordon , 952 S.W.2d at 821.

The second requirement, tha t the statem ent relate to the s tartling event, is v

ery broadly construedby our courts, because the statement can describe all or part of the event or the impact

of the event on the declarant. Id.

The third requirement, that the declarant be under the stress or excitement of the startling event, relates to the reliability of the statement and the concern that the statement be free from fabrication or reflection. The time interval between the startling event and the statement is only one consideration in determining whether the statement was made under stress or e

xcitement. Id. Other f actors considered by the court are the na

ture and seriousn

ess of the event or

condition; th

e declarant’s circumstanc es, inclu ding age and physical or mental condition; and the nature of the statement itself in indicating the presence or absence of stress or excitement. Id. (quoting Tennessee Law of Evidence

§ 803(2).2, at 534).-11-

In the present case, R.S.’s statements to her mother implicating the defendant as the molester qualify as an excited utter ance. The start

ling event in this

case arose when blood appeared on the commode as the victim was attempti ng to urinate, eve

n though this did not oc

cur immediately

after the molestation but did occur the same day. The young victim’s statements to her mother were the result of seeing the blood on

the toilet; thus, the

statements made to

her mother were

related to the startling event. The record is not well-developed on the extent of R.S.’s stress level when she saw the blood, but her mother testified that she was acting “funny” when she was going in and out of the bathroom, and Nurse Bondtestified that R.S. became very ups

et when she tried

to get a urine samp

le at the clinic on Monday. Considering that the defendant was a close family friend and the young age of the victim, it is not surprising that R.S. would not have acted overly excited at the time that she made the statements to her mother. As our supreme co urt has recogniz

ed, child victims commonly
are reluctant to report sexual offenses and may be unaware of the wrongful nature of the conduct or that it is not normal behavior for an a dult. Liv ingston , 907 S.W.2d at 395. H owever, the time interval between the appearance of the blood on the toilet and the victim’s statements in the bedroom
was very brief, and

whatever stress

she experience

d from seeing the b

lood would sti

ll have bee n present when she told her mother what the defendant had done to her. See , e.g. , Gordon , 952 S.W.2d at 821 (child rape v

ictim still under stress of st

artling event whe

n made statements

to her parents in bedroom a few m inutes after painful urination). Therefore, R.S.’s statements to her mother identifying the defendant a s the perpetrato

r were properl

y admitted into evidence by the trial court.
B. Mrs. Stoots’s C

hildhood Abuse

The defendant’s next assignment of error regarding Mrs. Stoots’stestimony is that the trial court should have allowe

d the defendant to

question Mrs. Stoots c

oncernin g s exual abuse she experienced as a child. In a bench conference, defense counsel explained to the judge that he was trying to s how that Mrs. Stoots had projected her own childhood fears onto her daughter and tha t R.S. was just responding to her mother’s fe ars. The trial jud

ge excluded this e

vidence as irre

levant. From our review of the record, we cannot conclude that the judgeabused his discretion in excluding this evidence.

Tenness ee Rule of Evidence 401 defines relevant evidence as “evidence having any tendenc y to make the existence of a ny fact t hat is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” While a mother’s own fear may be projected on to her chi ld, the defense did not offer an expert witness to connect Mrs. Stoots’s childhood experience with R.S.’s accusations, which would be required to make such a psychological connection. The defendant was allowed to question Mrs. Stoots about discussions she had with R.S. about the molestation and what she had told he

r about abuse

prevention, which were relevant. Absent any connection between Mrs. Stoots’s childhood experiences and

her daughter’s accusation against the defe ndant, this evidenc

e has no bearing o

n the issues in

the case and does not make any of the issues more or less probable than without that testimony.

Even if the trial court erred in excluding this evidence, any error was harmless. Considering the fact that the def

endant admitte

d m olesting the victim in a statement to police, along with the-12-

testimon y of the vi ctim and her mothe r concerning the

molestation, any te

stimony about Mrs. Sto

ots’ childhood abuse would not likely have changed the jury’s verdict.
II. SUFFICIENCY OF THE EVIDENCE

The defendant contends that no rational trier of fact could have

found him guilty beyond a reasonable

doubt based on the evidence pr oduced at trial. H

e specifically

points tothe uncertainty of R.S.’s testimony as to what happened and the fact that R.S. had talked to her mother numerous times about the incident. According to the defendant, the victim was “brainwashed” into accusing the defendant of sexual abuse. He also points to the inc

onsistencies in

Mrs. Stoots’ behavior, in that she served him dinner after she was convinced that he had molested her daughter and did not take her daughter to a clinic for two days after the alleg ed abuse. Up on our review o f the record, we conclude that the evidence was sufficient to support the defendant’s conviction.

The jury returned a guilty verdict against the defenda nt for one count of rape of a child less than thirteen years of age and one count of aggravated sexual battery. Te nnessee Code Annotated § 39-13-522 (1997) defines rape o f a child as follow

s: (a) Rape of a child is the unlawful sexualpenetration of a victim by the defendant or the

defendant by

a victim, if

such victim is

less than thirteen (13) years of age.

“Sexual penetration” means “sexual int ercourse, cunnilingus, fellatio, anal intercours e, or an y other intrusion, howeve

r slight, of any part of a person’s body or of any object

into the genital or anal openings of t he v ict im’ s, t he d efen dan t’s , or any o the r per son ’s b ody, but emission of semen is not required.” Tenn. Code Ann. § 39-13-501(7) (1997). Aggravated

sexual battery is defined in Tennessee Code Annotated § 39-13-504 (1997) as:
(a) Aggravated sexual

battery is unlawful sexual contact with a victim by the defendant or the defendant by a victim accompanied by any of the following cir

cumstances:

. . . . (4) The victim is less than thirteen (13) years of age.

“Sexual contact” i

s defined in § 39-13-501(6) as including “the intentional touching of the victim’s, the defendant’s, or any other person’s intimate parts, or the intentional touching of the clothing covering the immediate area of the victim’s, the de

fendant’s, or an

y other per

son’s intimate parts, if that intentional touching can be reasonably construed as being for the purpose of sexual arousal or gratification.”-13-

The defendant

is initially cloaked with a presumption of innocence, bu

t this presumption is lost following a jury verdict. Thus, on appeal, the defendant has the bur den to prove that the evidence is insufficient. State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982). We must affirm the conviction, unless the evidence at trial was so deficient that no rational trier of fact could have found all of the essential elemen ts of the convictin

g crime bey

ond a reasonable

doubt. Tenn. R. App. P. 13(e); State v. Cazes , 875 S.W.2d 253, 259 (Tenn. 1994). This applies to conv iction s based on either direct or circumstantial evidence or a combination of the two. State v. Matthews , 805 S.W.2d 776, 779 (Tenn. Crim. App.), perm. app. denied (Tenn. 1990). In determining the sufficiency of the evidence, we do not reweig h th e evi den ce or sub sti tut e ou r ow n in fere nces for tho se o f th e ju ry. Statev. Cabbage , 571 S.W.2d 832, 835 (Tenn. 197 8). In additio n, we give the str

ongest legitima

te view of the evidence and

all reasonable i

nferences to

the State. State v. Harris , 839 S.W.2d 54, 75 (Tenn. 1992), cert. denied , 507 U.S. 954, 113 S. Ct . 1368 (1993). With th

ese principles in

mind, we turn to the evidence. The issues raised by the defendant concerning inconsistenttestimony ar e issues of witness credibility

that we will not disturb on appeal. The jury simply did not believe the def endan t’s version of the events and credited the testimony of the State’s witnesses. I n addition, there was other significant

evidence that pointed to the defendant’s guilt. The statement that the defendant g

ave to police and signed was deta iled and comporte

d with what R.S. told

her mother and te

stified to at trial. In the statement, he

admitted touching

R.S.’s vagina an

d putting her han

d on his ge nitals on one occasion and putting his ha nd on R.S.’s vagina

over her clothes

on a second occa

sion. He also admitted that his finger ma y acciden tally have gone in her vagina

when he put his han

d in her shorts. The jury apparently did no t b elieve the defendant’s explanation that he signed the statement admitting to child sexual abuse to get out of jail in

order to prove his innocen

ce. Furthermor

e, Nurse Bondtesti fied that the injury to R.S.’s genitals was consistent with the type of contac t that the defendant admitted to having

with her. The def

endant was allowe

d to vigorously

cross-examine all of the State’s witn

esses, and he gave his version of the facts in his testimony at trial. Giving the Statethe strongest legitimate view of the evidence presented, a rational j uror could have found beyond a reasonable doubt that the defendant intentionally

touched and put his

finger inside R.S.’s vagina (child rape) and touched her vagina two weeks earlier over her clothing (aggravated sexual battery). We cannot find that the evidence was so deficient that i

t did not support the v

erdict. This issue is without merit.-14- III. SENTENCING

In reviewing a sentence, we conduct a de novo review with a presumption of correctness of the trial court’s findings. Tenn. Code Ann. § 40-35-401(d). This presumption is “conditioned upon the affirmative showing in the record that the trial court considered

the sentencing

principles and al

l relevant facts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). Although the basis stated for the trial court’s fi ndings was n ot detailed, we conclude that the trial court properl y cons idered the appro priate factors,

and the presumptio

n of correctnes s applies. Furthermore, the defendant bears the burden of proving that the sentence is improper. State v. Hunter , 926 S.W.2d 744, 748 (Tenn. Crim. App. 1995) , perm
. app
. denied , (Tenn. 1996).

In conducting our de novo review of the se ntences, we m ust consider: (1) the evidence received at trial and at the sentencing hearing; (2) the presentence

report; (3) sente

ncing principle

s; (4) arguments for sentencing alternatives; (5) the nature and characteristics of the criminal conduct in vol ved; (6) any mitigating and enhancing fac tors; (7) the defendant’s statements regarding sentencing; and (8) the defendant’s potential, or lac

k thereof, for r

ehabilitation or tr

eatment. Tenn. Code Ann. § 40-35-102, - 103, -210 (1997); State v. Smith , 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).

For

sentencing purposes, the defendant was classified as a RangeI, standard offender. The Range I sentence for child rape, a Class A felony, is not less than fifteen nor more than twenty-five years. Tenn. Code Ann. § 40-35-112 (a)(1) (1997). The presumptive sentence for a Class A felony is in the midpoint range, which is then adjusted according to the enhancing or mitigating fact ors. § 40-35-210(c)- (e) (1998). On Ma y 7, 1998, the sente

ncin g act was amended to mandate that the trial judge set the sentence at or above the midpoint when only enhancement factors are present. The previous version of this statute made increasing the sentence discretionary. Since the rape took place on May 8 or 9, the rape sentence falls under the new amendment.

The Range I sentence

for aggravated

sexual battery, a

Class B felony, is not

less than eight
nor mor e than twelve years. Tenn. Co de Ann. § 40-35-11 2(a)(2) (1997) . A Class B felony ha s a presumptive sentence of the minimum in the range and i s likewise adjusted for enhancing or
m itigating factors. § 40-35-210(c)-(e) (1997). Since the count involving the aggravated sexual battery occurred before May 7, 1998, the previous version of the sentencing statute applies, which allows the judge to use his or her discretion , rather than making it mandatory, to increase the sentence when only enhancing factors are present. The defendant received the minimum sentence for aggravated sexual battery, and, for obvious reasons, he is not challen ging the lengt h of this sentence.
The presentence report presented at the hearing revealed that the defenda nt had a 19 8 6 conviction for theft under $500 and a 1995 conviction f

or criminal imper

sonation. He had a

twelfth grade education and was employed until he was jailed. T he victim’s impact statement was als

o included. Mrs. Stoots testified at the hearing that her daughter has become very withdrawn, scared, depressed, and anxious since the incident. She also has t rouble sleeping. Mrs. Stoots further testified that the family is heartbroken, and her husband, who is disabled, has panic attacks and stays6 Tenn. Code A nn. § 39 -13-50 4(a) defin es aggrav ated sexu al battery as in volving unlawf ul sexual contact.

“ Sexual contact” under our sta tutes i nvolves int

entional touching t

hat “can be r

easonably cons

trued as be

ing for the (continu ed...)
-15- closed up in the house. Mrs. Stoots stated that she has become very emot ional. She c ould not recommend any possible punishment for the defendant that would make her feel better.

The trial court

sentenced the defendant to twenty-two years and a fine of $50,000 for the rape of a child and eight years and a fine of $25,000 for the aggravated sexual battery. In sentencing the defendant as a Range I standard offender at 100%, the court applied enhancing factor (1) , that "[t]he defendant has a previous history of c riminal convictions or cr iminal behavior in a

ddition to those necessary to establish the appropriate range," and enhancing factor (7), that "[t]he offense involved
a victim and was committed to gratify the defendant's des ire for pleasur

e or excitement, " to the rape sentence. Tenn. Code Ann. § 40-35-114(1), (7) (1997). The court fo und that neit

her mitigating factor (1), that "[t]he d

efendant's crim

inal c onduct neither ca

used nor threate

ned serious bodily injury," nor an unspecified mitigating factor, that the defendant cooperated with police by givinga statement, applied. Tenn. Code Ann. § 40-35-113(1) (1997). The fa ctor conce rning cooperation withthe police falls under the catch-all fa ctor (13), und er which the court can consider any other factor consistent with the

purposes of the se

ntencing act. Tenn. Code Ann. § 40-35-103; -114(13) (1997). A. Enhancing Factor (1)

The defendant argues that the trial court should have given little weight to enhancing factor (1) regarding the defendant’s previous history of criminal behavior, since the offenses involved were minor misdemeanors. The trial court only enhanced the sentence two years above the presumptive midpoint of twenty years on the child rape conviction using the two enhancing factors it found. Considering that the court did not enh ance the ag gravated sexual battery sentence, even though factor (1) applied, it appears that the trial court gave little weight to the defendant’s previous history of misdemeanors on either charge. The court could have properly given greater w eight to the defendant’s m isdeme anor convictions, as this court has previously allowed relatively minor and unrelated criminal acts, such as driving-related offenses, to be considered in enhancing a sentence. Statev. Walde , No. 03C01-9603-CC-00 109, 1997 WL 789964, at *10 (Tenn. Crim. App., Knoxville, Dec. 23, 1997), perm
. app
. denied , concurring in re sults only (Tenn. 1999) (citations omitted). In any event, it is proper for the trial court

to enhance a sen

tence for prior

misdemeanor conv

ictions, and we see nothing

in the record tha

t would cause us to disturb the trial court’s app lication of this factor. See Stat e v. McKni ght , 900 S.W.2d 36, 54 (Tenn. Crim. App. 1994), perm
. app
. denied , (Tenn. 1995). B. Enhancing Factor (7)

The defendant further challenges the trial court’s application of enhancement factor (7), that the offense was committed for pleasure or excitement. This factor is not applicable to the aggravated sexual battery conviction, since it is already contained in the essential elements of the offense. 6 State6 (...continued)

purpose of sexual arousal or gratification.” Tenn. Code Ann. § 39 -13-501(6) (1997).
-16- v. Kissinger , 922 S.W.2d 482, 489 (Tenn. 1996). On the other h and, rape inv olves sexual penetration, which has no motive component under o ur statutes. Therefore, enhancement factor (7)
can be appliedto the rape convic tion if there is

evidence in the record to support its application. Our review of the record shows that there is. The defendant’s own statement to police indicated that

he touched the child’s chest, kissed her, and put her hand on his penis while touchingher vagina. These
are clearly actions showing arousalor pleasure-seeking. The trial court correctly applied factor (7) to the rape conviction. C. Mitigating Factor (1)

The defendant alleges error by the trial court in ref

using to apply

mitigating factor (1), that the criminal conduct did not cause or threaten serious bodily injury. We agree with the trial court that this mitigating factor was inapplicable. The victim testified at trial that the defendant hurt her when he inserted his finger in her vagina, and the child’s mother

testified that the

victim has become scared, depressed, and anxious since she was molested by the defendant. The child was still in counseling at the time of trial. There was blood f ro m the victim on the toilet seat, although it was notclearly connected to either the victim’s bladder infecti on or the molestatio

n, and there was a small laceration in the victim’s vaginal area that was consistent with digital penetration. Our courts have previously recognized that the rape of a ch

ild is always physically and mentally injurious to the victim, and injuries somewhat similar to these have been held to be serious bodily injur y in child sexual abuse cases for

th e purposes of the statute. See Kissinger , 922 S.W.2d at 487; State v. Edward Earl Huddleston , No. 02C01-9706-CC-00228, 1998 WL 67684, at *3 (Tenn. Crim. App., Jackson, Feb. 20, 1998), perm
. app
. denied , (Tenn. 1998); State v. James Dison , No. 03C01-9602- 00051, 1997 WL 36844, at *18 (Tenn. Crim. App., Knoxville, Jan. 31, 1997), perm
. app
. denie d , (Tenn. 1997). As to the trial court’s finding that the difference in size between the defendant and the victim threatened bodily harm, wehave not found any case law supporting such a finding and decline to so hold in this case.

We also note that this court has actually enhanced sentences for rape and aggravated ra pe of
a child for psycholo

gical injurie s pursuan t to enhancement factor (6), which allows enhancement whe n the injury to

the victim is particularly great. State v. Hunter , 926 S.W.2d 744, 749 (Tenn. Crim. Ap p . 1995), perm
. app
. denied , (Tenn. 1996). In Hunter , the defendant’s sentence was enhanced using factor (6) for penetrating his eight-year-old daughter’s vagina with his finger, when there was evidence presented at trial that the child was depressed and suffered fr

om post-traumatic stress disorder. Id. Considering the tes timony of Mrs. Stoots a

s to the changes in R.S.’s behavior and her need

for counseling after

the molestation, the trial court could have enhanced the sentences using factor (6) as well as the other factors it used, which would have effectively cancelled out any effects of mitigating factor (1). D. Mitigating Factor (13)-17-

The defendant’s fin

al argument that his sent ence should have been mitigated because he cooperated

with authorities is l

ikewise without mer

it. The trial cour

t w as bothered by the defendant’s testimony that the st atement he gave p

olice admitting to th

e molestati on wa s not accurate. The

court noted:

I don’t believe in a

ll fairness today that that should be considered as a mitigating factor. Otherwise, the Court would be finding that you
can tell the poli ce what yo u want to one day and change it the next and yet take credit for i t when it comes to sentencing purposes, and that just does not seem, the Court finds, to be sound logic.

We agree with the trial court’s reasoning and find that it did not abuse its discretion in refusing to apply this factor to

mitigate the sentences. Having found that the trial court correctly applied two enhancing factors and no mitigating factors to the child rape sentence , we affirm the trial court’s twenty-two-year sentence for this offense.
CONCLUSION Based upon our re

view, we affirm

the judgment of the

trial court.

___________________________________ ALAN E. GLENN, JUDGE