# FILED
March 24, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE NOVEMBER 1998 SESSION

STATE OF TENN ESSEE, ) No. 03C01-9807-CC-00238 ) Appellee ) ) Blount County vs. ) ) Honorable D. Kel ly Thomas, Jr., Ju dge CHESLEY RANDELL THOMPSON, ) ) (Rape of Child) Appellant. )

FOR THE APPE LLANT: FOR THE APPELLEE: HUBERT PATTY JOHN KNOX WALKUP Attorney at Law Attorney General & Repor ter P.O. Box 5449 Maryville, TN 378

02 R. STEPHEN JOBE Assistant Attorney Gener al Criminal Justice Div

ision 425 Fifth Ave. North 2d Floor, Cordell Hull Bldg. Nashville, TN 37243-0493 MICHAEL L. FLYNN District Attorney General KI RK AN DR EWS LISA McKENZIE Assistant District A

ttorneys General 363 Court St. Maryville, TN 378

04

OPINION FILED: ____________________
CONVICTION A FFIRMED; SENTENCE VA CATED; REMA

NDED
JAMES CURWOOD W ITT, JR. JUDGE2 OPINION A jury in the B lount Cou nty Circuit Court con vi cted the defendant, Chesley Randell Thompson, of ra pe of child, a Class A felony. The trial court sentenced him to serve twenty-three years in the Department of Correction. In this direct appeal, the defendant raises numerous issues including the s ufficiency of the evidence. After reviewing the record, the

parties’ briefs, and the a pplicabl e law, we affirm the defendant’s conviction. However, because the trial court appl ied 1995 sentencing revisions to Tennessee C ode Annotated section 40-35-210(c ) to determine the defendant’s sentence, we rem an ded the case to the trial cour t for resentencing.

The defendant’s brief lis ts twenty-t hree issu es for revi ew. However, the brief fails to include

legal arguments wi

th appropriatecitations to the record and to relevan t legal authorities in fourteen of the issues. Those issues are waiv ed

. See Tenn. Ct . Crim. App. R. 10(b). We briefly di scuss those issues at the conclusion of this opinion. We resolve the following issues:

1. Whether the evidence is s u fficient to convict the defendant of rape of a chil d. 2. Whether the trial court shou ld have grante d the defendant’s motion to suppress his stateme nt s to the police because they were obtained under duress. 3. Whether the trial court erred b y fai ling to instruct th e jury on the lesser i ncluded offenses of rape of a child. 4. Whether P am ela Dickey’s testi mony should have been excluded as privileged communication. 5. Whether the trial court shou ld have excluded the hearsay testimony of Duane Sm i th because it was neither a proper rebuttal nor impeachment. 6. Whet her the trial court sho uld have excluded Dete c tive Long’s hearsay te stimony

in which he repeated th e victim’s statements.1 We resolve eight issues rather than nine because defendant’s

issues number 6 and 7 are identi cal.

2 The record does not disclose ex actly how the authorities learned of the victim’s abuse. In e arly 1997, the Department of Hu man Services placed the

3 7. Whether the trial court erred by sending a written sup plemental jury instruc tion to the jury rather than retu rning the juryto open court. 8 Whether the trial cour t u sed improper enhancementfactors and f ailed to apply appropriate mitigat ing factors i n enhancing the defendant’s sentence. 1 We begin with a discussion of the facts pr esented at trial.

On August 4, 1997, the defendant was indicted for rape o f a child. See Tenn. Code Ann . § 39-13-522 (1997). The victim, who was 11 1⁄2 years old at the time the offense occurred in S eptem ber, 1994, is the defendant’s daughter. According to her trial t estimo ny, one day shortly after school began in the fall o f 199 4, s he was lying on th e waterbed in her parents’ bedroom. Her mother, the defendant’s wife, was

at work. The victim w as wearing a night gown, and at on e point she had worn panties. Later her panties were gone. She remembered that herfather had his head between her legs and his mouth and tongue wer e on her vagina. She said that she just laid there on the bed and l ooked out the window while this occurre

d.

On cross examination, the victim testified that she did not tell the state tha t the incident occurred in September. She knew that it happened i n 1994 because of where they lived. On redirect , she testified that, although she couldn’t remember

an exact date, the event occurred six months after her

eleventh birthday and just after

she had started back to school forthe year. Her birth date is March 26, 1983. Sh e would ha ve been 11 1⁄2 in September, 1994, the date contained in the amended indictment. Shefurther testified that her father had never penetrated her sexually and that she was a virgin. She stated that shehoped to go home once the trial was over. 2victim in foster care. At the time of trial, her pare nts were still marr ied and lived together along with

the victim’s younger brother.

4 The state called Duane Smith, an investigator

for the Department

of Children’s Services who inte rviewedthe victim in February of 1997. He testi fied that the victim told him that she was 11 1⁄2 years ol d when her father performed cunnilingus on her.

James Long, an investigator from the Blount

C ounty Sheriff’s Department, interviewed the defendant on February 11, 1997, February 21, 1997, and March 4, 1997. At first, the defendant said that he couldn’t remember performing cunnilingus on his daughter. Finally on March 4, when his wif e an d a DHS social worker w

ere present, he admitted that he had licked and kissed his daughter’s genitals.

According to Pamela Dickey, a prog ram director for the PASAC Sex Abuse Treatment Program in Kn oxville, the defen dant wa s a member

of a counseling group which sh e se rved as therapist. In the group, the defendant described how he had touched, kissed and licked his daughter’s private parts.

The defense presented nowitnesses, and the jury returned a verdict of guilty on the singl e count of rape of a child.

I. Sufficiency of

the Evidence (Defendant’s Issue No. 18) The defendant now contends that the evidence is insu ffic ient to sustain his conviction. In p articular, he argu es that b ecause the record contains absolutely no evidence of penetration, he c an no t b e c

on vi ct ed of

ra pe . We respectfully disagree.

Whe n an a ccused challenges the sufficie ncy of the evidence, an appellate court’s standard of review i s, whether after consider ing the evidence in3 According to our custom, w e refer to a child who is the victim of sexual ab use by init ials only. 5 the light most favorable to the prosecution, any rati onal trier of fact could have found the essential elements of the crime beyond a re aso nable doubt. Jackson v. Virginia , 443 U.S. 307, 3 17, 99 S. C t. 2781, 2789 (1979); State v. Duncan , 698 S.W.2d 63, 67 (Tenn. 19 85); Tenn. R. App. P. 13(e). Bec ause a jury conviction
removesthe presumption of innoce nce wit h which a defendant is initi ally cloaked and r eplace s it with one of guilt , a convicted defendant has the bur den of demonstrating that the evi dence is insufficient. State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982). On appeal, the state is entitled to the strongest legitimate view
o f t he eviden ce and all reasona ble or legi timate in ference s which may b e drawn therefrom. State v. Harris , 839 S.W.2d 54, 75 (Tenn. 1992).

In determining that sufficie ncy , this court does not rew eigh or reevaluatethe evidence. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). It is the appellate court’s duty to affirm the conviction if the evidence, view ed under these standar ds, was sufficient for any rational trier of fact to have found th e essential elements of the offenses beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 317, 99 S. Ct. 2781, 2 789; State v. Cazes , 875 S.W.2d 253, 259 (Tenn. 1994); Tenn. R. App. P. 13(e)

.

The indictment in this instanc e charged that the

defend ant “on or about September, 1994, did unlawfully and know ingly sexually

penetrate [J.T.], 3 a person less than 13 years of age in v iolation of Tennessee Code Annotated section 39-13-522. . . .” Tennessee Code Annotat ed secti on 39-13-522(a) defines the offense of rape of a child as the “unlaw ful sexual penetration of a v ictim by the defendant or the defendantby a victim, if such victim is less than thirteen (13) years of age.” The legislature has defined sexual penetration as “se xu al intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, howev er slight, of any part of a person’s body or of any object into the genital or anal openings of the6

victim’s, the defend ant’s, or any other p erson’s b ody, but emission of semen is not required[.]”

Tenn. Code Ann. § 39-13-502(7)(1 997). To convict th e defendant for rape of a child, the state must prov e beyond areasonable doubt that he knowingly sexually penetrated a child of less than thirteen years in one of the way s defined by statute.

In viewing the ev idence in the light most fav orable to the state , we are confronted with the evidence pr ovided by the victim a nd the admissions of the defendant to Detective Long and to his therapist. The victim, who was eleven years old at the time of the offense, testified that her father put his head between her legs and placed his mouth a nd tongue on her vagina. In his final interview w ith the police, the defendanttold the detective that he ha d kissed and licked his daughter’s genitals. He also described these actions to his therapi st. The only question that
we must resolve is w hether these actions constitute rape of a child under Tennes see law.

As noted above, rape of a child r equires sexualp enetration. Tenn. Code Ann. § 39-13-522 (1997). Pene trat ion includes cunniling us. Tenn. Code Ann. § 39-13-502(7) (1997). C unnilingus, a sexual activity in w

hich the mouth and tongue are used tostimulate the female genitals, does notrequire that the mouth
or tongue actually penetrat e into the vagina. State v. Ho yt , 928 S.W.2d 935, 942 (Tenn. Crim. App. 1995); State v. Bruce Allan Rud d , No. 03C01-9707-CR-00307, slip op. at 6 (Tenn. Crim. App., Knox ville, Oct. 6, 1998); State v. Michael Warren Evans , No. 02C01-9306-CC-00124, slip op. at 5 (Tenn. Crim. App., Jackson, Mar. 2, 1994), perm. app. denied (Tenn. 1994); State v. Karl E. Vanderbilt , No. 70, slip op. at 6 (Tenn. Crim. App., Jackson, Apr. 8, 1992), perm. app. denied (Tenn. 1992). While touch alone may not c on stitute penetration under Tennessee law, licking clearlydoes. State v. Reginald L. Par ker , No . 02C01-9306-CR-00130, sli p op. at 4 (Tenn. Crim. App., Jack son, Dec . 28, 1994). The defendant admitted that he licked the victim’s gen itals. Thu s, the evidence is more than sufficient for a7

reasonabl e juryto conclude beyond a reasonabl e doubt that the defendant committed rape of a

child as defined by Tennessee st atutes. See Tenn. Code Ann. §§ 39-13-502(7); 39-13-522(a) (1997).

II. Suppression of the Defendant’s Statement

(Defendant’s Issue No. 1)
The defendant’s motion to suppress alleged that the defendant’s statements to the police were not v oluntary but were obt

ained by duress and coercion. Specifically, the defendant contends that he confessed to the police only because he was led to beli eve that if he made a statement his daughter w ould be returned home. He argues that his desire to reunite his family overwhelmed his independentjudgment. At the conclusio n of a pre-trial hearing,the trial court denied the defendant’s motion upon concluding that the defendant was an intellig ent man who made a knowing and vol untary waive r of his constitutional rights. The court found that no one had threatened the defendant or made him any promises. It ruled that a desire to get on e’s family back together does not render a statement involuntary. We agree.

To be valid, a waiv

er of one’s constitutional rights and a subsequent statementmust be voluntarily , knowing ly and intelligently made. Miranda v. Arizona , 384 U.S. 436, 479 , 86 S. Ct. 1602, 1630 (1966). This court must examine the totality of

the circumstances surrounding each individual case to determine the question of voluntariness. State v. Van T ran , 864 S.W.2d 465, 472-73 (Tenn. 1993). Factors re leva nt in det ermining whether a defendant v oluntarily made a st atement to the police include (1) the length of time between the a r rest and th e statement; (2) t he occurrence of interveni ng events between the ar rest and the confession; (3) the giv

ing of Miranda

warnings; and (4) the purpose and flagrancy of any official misconduct. Brown v. Illinois , 422 U.S. 590, 603-04, 95 S. Ct.2254, 2261-62 (1975). The overriding question, however, is w hether the behavior of law8

enforcement officia ls served to ove rbear th e defendant’s will to res ist. State v. Kelly , 603 S.W.2d 726, 72 8 (Tenn. 1980).

A trial court’s findings of fact at a hearing on a motion to suppress are binding upon this court unless the evidence in the record preponderatesotherwise. State v. Odom , 928 S.W.2d 18, 23 (Tenn. 1996). The credibility of witnesses

and the resolu tion of conflicts in the evi dence are matters entrusted to the trial judg e . Id. This court must uphold the rul ing of the lower court if it is supported by the “greater weight

” of the evidence. Id

.
Here, the record supports the trial court’s determi nations. Altho ugh the police interview

ed the defendant on February 11, Feb ruary 21, and March 4 of 1997, nothing in the record indicates that he was under arrest during this period of time. The detective testified that he gave the defendant the Miranda warnings prior to each interview and the r ecord contains writt

en waivers executed by the defendant and dated February 11 and 21. The tape of the March 4 interv iew indicates that the defendant reviewed the form he had signed previously

and understood that he was waivinghis constitutional rig hts. The defendant acknowledgedthat he did not want
an at torney present. The record contains no credible proof of official mis conduc t including coercion

or false promises. Nothing i ndicates that the officers’ behav ior
was so overbearing that the defendant’s wil l to ma intain his innocence was overwhelmed. Under these circumstances , the trial court properl y denied the motion to suppress.

III. Failure to Instruct on Lesser-Included Off enses (Defendant’s Issue No. 13)4 The defendant’s brief does not specify w hich lesser included or lesser grade of offense the trial court should have charged. However, the case s he has selected to support his argument involve th e offense of incest. See Tenn. Code Ann. § 39-15-302 (1997). We note that this court has previously determined that incest is not a lesser included offense of rape. See State v. Willie C. Powell , No. 02C01-9210-CR-00246 ( Tenn. Crim. App., Jackson, Feb.9, 1994); State v. John Rickman , No. 03C01-9211-CR-00393 ( Tenn. Crim. App., 9 The trial court instruct ed th e jury on ra pe of a child as defined in Tennessee Code Annotated sections 39-13-501(7) and 39-13-52 2. The court did not instruct on the lesser included offens e of sexua l battery, nor did the trial court instruct the jury on incest. The defendant now contends that the trial court’s fa ilure to charge the jury on any lesser included offense was most prejudicial to the defendant and requires that he be g ranted a new trial.

A trial court has the duty of giving a correct and complete charge of the law applicable to the facts of the case. See e.g. , State v. Teel , 793 S.W.2d 236, 249 (Tenn. 1990); State v. Bryant , 654 S.W.2d 389, 390 (Tenn. 1983). Moreover, the legislature has determi ned that the trial court must charge the jury on applicable lesser included offenseswhether or not they are requested by the defendant. Tenn. Code Ann. § 40-118-110(a) (1997).A lesser offens e, however, need not be
c harged if t he evidence supports only the greater offense or no off ense at all. Moorman v. State , 577 S.W.2d 473, 475 (Tenn. 1978); State v. Tutton , 875 S.W.2d 295, 297 (Tenn. 1993).

The victim testified that the defendant performed cunnilingus on her. The record

contain s no ment ion of any other fo rm of s exu al contact. Pursuant to the definition given in section 39-13-501(7), cunniling us is the equivalent o f sexual penetration. To be convicted of rape of a child, a defendant must unlawfully sexually penetrate a victim who is less than thir teen years of age. Tenn. Code Ann. § 39-13- 522(a) (1997). Either this defendant w as guilty of rape of a chil d as charged or he

was guilty of no offense at all. See State v. Tutton , 875 S.W.2d 295, 297 (Tenn. 1993); Moorman v. State , 57 7 S.W.2d 473, 475 (Tenn. 1978). 4 The lack of anyKnoxville, May 18, 1993); State v. Jerrell C.Livingston , No. 01C01-9012-CR00337 (Tenn. Crim. App., Nashv ille, Sept. 17, 1991). Rape o f a child is defined as an offense against persons in ti tle 39, chapter 13 of Tennessee Code Annotated. Incest, on the other hand, is an of fense against the family and is found in chapter 15 of title 39. Therefore, incest is not a lesser g rade of rape. See State v. Trusty , 919 S.W.2d 305, 311 (Tenn. 1996). The trial court could not have instructed the jury on incest because the defendant had not been indicted for that offense. See Trusty , 919 S.W.2d at 310. 10 instructions on lesser included or lesser grades of rape of a child does not, in this instance, entitle the defendant to a new trial.

IV. Privileged Testimony (Defendant’s Issue No. 20) The defendant cont ends that the trial court erred b y admitting into evidence th e defendan t’s statements to his therapist at the PASAC Sex Abuse Treatment Program where he w as voluntarily enr

olled. At trial, Pamela Dickey , who led a group in which the defendant was a member, testified that he had described to the group how he had lic ked and kissed his daughter’s genitals. He argues that pursuantto Jaffee v. Redmond , 5 18 U.S. 1, 116 S. Ct. 1923 (1996) , the privilege protecting confidential communications betw een a psychotherapist and her patient promote sufficiently important inter ests to outweigh t he nee d for the probative evidence the therapist may give at trial.

O ur supreme court has previously addressed this issue in State v

. Smith , 933 S.W.2d 450 (Tenn. 1996). In Smith , the Tennessee Supreme Court

rejected out of hand the argument that the legi slature’s abrogation of the counselor privilege in child sex abuse cas es violates due process under either the federal or state constitutions. State v. Smith , 933 S.W.2d at 457. Conf idential privileges exist at the d iscretion of the legisl ature and the courts. Id . (citations to other auth orit y omitted). Although the legis la ture has provided priv ileges for certain confidenti al relationships, it has expressly abroga ted those privilege s in judicial proce edings11

relating to child sex abuse. Tenn. C ode Ann. § 37-1-614 (1997). A creati on of the legislature, the privilege is undoubtedly s ubject to limitation or r emoval as the legislature deems appropriate. State v. Smith , 933 S.W.2d at 457. Ourlegislature ha s determi ned that

societ y’s interest in expo

sing th e sexua l abuse o f childre n transcendssociety’ s interests in pr otecting the confidentiality of the communications between a counselor and a client. Id . The defendant has suffered no deprivation of his constitutional rig hts by the admission of Ms. Dickey’s testimony

.

V. Prior Consistent Statements (Defendant’s Issue No. 9) The defendant argue s tha t the trial court should h ave excluded the hearsay testimony of Duane

Smith because it was neither proper rebuttal nor proper impeach ment. Th e state contends that his testi mony was a prior cons istent statementand was admissible to r ebut an express or impli ed cha rge of recent fabrication or improper influence or moti ve. Although we agree with the state that Smith’s testimony was properly admitted as a prior con sistent statement, we find that the trial court erred by failing to give the jury a proper instr uction concerning its use. However, the error on this record was harmless.

Smith was the last witness to testify in the state’s case-in-chief. His testimony was very brief. The pertinent portion of his testimony is as follows:

Prosecutor: And in the cou rse of your

job with th e Department of Children’s Services, did you speak with [the vic

tim]? Witness: Yes, I have. Prosecutor: Do you remember on what date - - Defense Counsel: Your Honor ,

is this for the p urpos e o f i mpeach in g t he State’ s witnesses? Court: I’ve alrea dy ruled on this, Mr. P atty. Defense Counsel: All right.5 We note that def ense counsel did not specifically object to Smith’s

testimony as hearsay or as improper impeachment. The trial court appa rently misunderstood the gist of defense coun sel’s question as to the purpose of the testimony. Defense counsel obj ected to the single substantive question as “improper,” and the trial court overruled the obj ection without further comment. See Tenn. R. App. P. 36(a). We choo se, however, to consider the merits of this issue, but remind counsel that for the purposes of appellate rev iew, counsel should state on the record the l egal basis for each objecti on. 12 Prosecutor: On what date did you see her? Witness: On February 7th, 1997. Prosecutor: And where did you see her? Witness: Lanier Elementary School Prosecutor: And what, if a nyt hin g, did

she sayabout a d ate of a happening of cunnilingus - - Defense Counsel: W ell, if You r

H o n o r please, that’s leading and improper. 5 Court: Overruled. Defense Counsel: All right. Prosecutor: You may answer. Witness: Okay. S he stated that

when she was elevenand a half years old that the oral sex took place. The defendant now contends that the witness’s response to the last question is inadmissible hearsay. Under the Ten n essee Rules of Evidence, hearsay is any statement, other than one made by the declarant whi le testifyingat trial or in a h earing, that is offered into ev idence to prove the truth of the matter asserted. Tenn. R. Evid. 801(c). Hearsay statements are not admissible unless (1) the evidentiary rules

create an exception or ( 2) some other law render s the stateme nt admissible. Tenn. R. Evi d. 802, Advisory Commi ssion Comments. In this instance, the witness testified to the victim’s out of court statement during the state’s case in chief. Prior stat ements of witnesses, whethe r consistent or inconsistent

with their t rial testi mony, constitute hearsay if offered for the truth of the matter asserted. State v. Braggs , 604 S.W.2d 883, 885 (Tenn. Crim. Ap p. 1980)13

(citations omitted). In this case, if the state offered the te stimon y as substa ntive eviden ce to prov e the date of the offense, the statement is clear ly hearsay and i nadmissi ble. The state argues that the testimony was admissible as a prior consistent

stat ement of fered to rehabilitate the victim’s testimony after defen se counsel attempted to impeach her st atements during cross-ex amination.

Detective Long testified befor e the victim was cal led to the stand. During cross examination, defense counsel asked him if anyone had ever told him that “Mr. Thompson did that in September of 1994?” The detective r esponded that the victim had stated that “i t occurred in September of 1994.” In response to two additional questions by defense counsel , the detective again as serte d that th e victim had indeed told him that the offense occurr ed in September of 1994.

The victim was the sec ond witness called

by the state. During

direct examination, she testified that the offense occurred on or about September, 1994 whe n she was in the fifth grade and was 11 1⁄2 years old. Defense counsel attempted during cross exami nation to show that the v ictim was not certain as to the time the offense occurred by showing her three photographs takenduring summer and fall of 1994. She testified that wi th respect to two of th e phot ographs, the events had occurred too long ago for her to

remember when they w ere taken. She
was certain, however, that she and her family lived on Calderwood Ave. in Maryville during the fall of 1994 and at the time of the commission of the off ense. She also testified that the state sugg ested the date of September, 1994.

On redirect, when the s tate asked her if she

remembered talkingto Detective Long and telling him that the incident happened about s ix months after her eleventh birthday, s he said that shecouldn’t remember telling him that it was

six months after he r birthda y. She admitted, however, that she thought that school had just started when the offense occurred.14 As a rule, evidence of a pri or consistent statement may not be used to rehabilitate or bo lster the testimony of an impeac hed witness. State v. Martin , 964 S.W.2d 564, 567 (Tenn. 1998); State v. Braggs , 604 S.W.2d at 885 (citations to other authority omitted). There are two recogniz

ed exceptions to this rul e. First when a witness has bee n challenged on the ground that his trial testimony is a recentfabrication or when the w itness hasan apparen t motive f or testif ying false ly, evidence that a witness gave a similar statement when the motive to give false testimony

did notexist and the effect of the witness’s vers ion of the facts could not be foreseen, is admissible. State v. Carpenter , 773 S.W.2d 1, 10-11 (Tenn. Crim

. App. 1989). Second, when counsel use s prior statements to cross-exami ne a witne ss, and s pecific questions and answ ers that are taken out of contex t so that they do not convey a true picture of the prior statement, the stateme nt itself may be introduced as evidence to allow the statements to be placed in context. State v. Boyd , 797 S.W.2d 589, 593-594 (Tenn. 1990).

In t his case, the first excep tion applies. The victi m made her statementto the D.H .S. worker on Februar y 7, 1997, six months before the defendant was indicted. At th at time, she would not hav e been aware of the ramificationsof her statement. At trial, al though she testifiedon direct examination that the offense occurred in September, 1994 w hen she was 11 1⁄2 year

s old, during cross-examinationshe said that the date had been suggested by the state. Clearly her testimony on direct had been seriously questione d. Although prior

consistent statements have been excluded when they pertain to an ambiguous response regarding the date of an event, see State v. Dane Howell , No. 76 (Tenn. Crim. App., Knoxville, June 15, 1989), J.T.’s credibility was sufficiently challenged to warrant the admission of a prior consist ent statement.

Prior statements of witnesses, how ever, may not be ad mi tted as substan tive evidence. See Sutton v. State , 155 Tenn. 200, 204, 291 S.W. 1069, 1071 (1926); State v. Carpenter , 773 S.W.2d 1, 11 (Tenn. Crim. App. 1989); State15

v. Braggs , 604 S.W.2d at 885. In this case, the trial court gave no instruction to the jurythat the victim’s prior consistent statement about the date of the offense could not be considered as proof that the offense actual ly occurred in September of 1994.

The lack of a jury instru ction was, howev er, completely harmless.See Tenn. R. App. P. 36(b). The date of the offense was not at issue. The defendant did not raise an alibi defense. In fact, he did not deny that he had acted i n the way described by his daughter. He attempted to showthat he was not guilty of rape because penetra tion had not occur red. The victim’s di rect test imony and Detective Long’s response to defense counsel’s q uestions established that the offense occurred just after school started in 1994 when the victim was about 11 1⁄2 years of age. A jury instructi on on the nature and use of a prior c onsistent statement would not have affected the verdict. See State v. Braggs , 604 S.W.2d at 885.

VI. Hear say (Defendant’s Issue No. 8)
The detective who investigated the allegations of child sexual abuse in this case twice testified that the v ictim told him that the incident occurred in September, 1994. The defendant objects to the ad mission of these hearsay statements. We agree that the testimony to whic h the defendantrefers is classic hearsay. See Tenn. R. Evid. 801(c). Ho wever, t he state did not elicit this testimo ny. On cross examination, defense co unsel asked the detective two ti mes if anyone had told him “that Mr. Thompson did that in September of 1994?” Each time, the detective responded that the victim had given him that information. The party responsible for an error is entitled to no relief in this court. Tenn. R. App. P. 36(a). This issue has no mer it.

VII. Supplemental Jury Instruction (Defendant’s Issue No. 14)6 The jury sent two req uests to the judge. The trial record indicates that after retiring to deliberate, the jury asked that they rehear the defen dant’s tape recorded statement. The trial judge brought the jury, the defendant, and the attorneys back into open co urt where the redacted tape was replayed for the jury. The trial cour

t appropriately instr

ucted the jury at that ti me. The defendant does not challenge the tria l court’s actions w ith respect to this communica tion. 16 In thi s issue , the defendant contends that the trial court’s ex parte communication with the jury w as improper and prejudiced his right to a fair trial. The information in the re cord c oncerning the alleged ex parte communication is sparse. The only information ab out th is communication is contained in the transcript

of the hearing on the defendant’s Motion for New Trial. The tr anscript includes a cryptic handwri tten note as an exhibi t. It s ays, “Meaning of word Cunnilingus

from Dictionary.” Benea th this, the trial judg e wrote, “The definition that must be used is in your ins tructions.” His si gnature follows the suppl emental instruction. Because the trial transcri pt cont ains a full record of the dispos ition of another jury re ques t and no record whatsoever of this communication, we must conclude that the trial court res ponded to the jury’s reques t sua sponte and without the prior k

nowled ge of either part y. 6 The discussion held at the hear ing supports this conclusion. The trial cour t stated, “The only communication I had w ith the Jury, other than the initial instruc

tions, is set out in a written question that they sent to me, and I’ve had that -- with my response that I told the lawyers about, that’s been made
an exhibit.” The

trial court’s statement,although not crystal clear, implies that

the trial judge responded to the note and then informed the attorneys about his response.

Trial courts should dis cont inue the practice of communicating with deliberating juries by passing no tes. S tate v. Mays , 677 S.W.2d 476, 479 (Tenn. Crim. App. 1984). To prevent ev en the appearance of judicial partial ity or unfairness, any proceedings involving the jury after it has reti red for deliberations should be conducted in the open court and in the defendant’s presence. State v. Tune , 872 S.W.2d 922, 929 (Tenn. Crim. App. 1993); Smith v. State , 566 S.W.2d 553, 559-560 (Tenn. Crim. App. 1978).The proper method of fielding jury questions17

during deliberations is to rec all the jury, counsel

for both parties, the

defendant, and the co urt rep orter and to resolve the matter on the record. State v. Ma ys , 677 S.W.2d at 479.

The f ail ure to follow the proper pr ocedure, however, is

subject to harmless erro r ana lysis. State v. Tune , 872 S.W.2d at 929; State v. Ma ys , 677 S.W.2d at 4 79. If the defendant has not been prejudiced by an inappropriate response, reversal is not re quired. State v. Tune , 8 72 S.W.2d at 929. The defendant has not indicated how the trial court’s actions resulted in prej udice. Nor have we found any. In this instance, the trial court’s response merely referred the juryback to the original i nstructions. No new or erroneous informati on was included in the supplemental instruction.The inappropriate method of respon ding to the jury’s question c

ould not have affected the verdic t.

IX. Sentencing (Defendant’s Issue No. 23)

In his final issue, the defendant contends that the trial court improperly used two enhancement factors to enhance his sentence bey ond th e statutory minimum and failed to find certain miti gating fa ctors that were support ed by the proof. The state argues tha t, althou gh the reco rd suppo rts the us e of two mitigating factors, the defendant’s twenty -three year sentence shoul d be affirmed.

When an accused challenges the l ength, range, or manner of service of a sentence, it is the duty of this court to co nduct a de novo review with a presumption that the determinations made by the t rial court are correct. Tenn. C ode Ann. § 40-35-401(d)(1997). This presumption is "conditioned upon the affirm ative showing in the record that the trial co urt considered the sentencing principles

and all relevant

facts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn.18

1991). In conducting our rev iew, we must consider all the evidence, th e presentence report, the sentencing pr inciples, theenhancing and mitigating factors, counsels’ arguments, the appellant’s statements, the natu re and character of the offense, and the appellant’s potential for rehabilitation. Tenn. Code Ann.§§ 40-35- 103(5), -210(b) (1997); State v. Ashby , 823 S.W.2d at 169. The defendant hasthe burden of demonstrating that the sentence is improper. Id

. In the event the record fails to demonstrate theappropriate consideration by the trial court, appellate review of the sent enc e is purely de novo . Id . If our review reflects that the trial court properlyconsidered all relev ant fac tor s and the record adequately supports its findings of fact, this court must affirm the sentence evenif we would have pr eferred
a different result. State v. Fletcher , 805 S.W.2d 785, 789 (Te nn. Crim. App. 1991).

In this instance, the trial court found that theevidence supported the application of two enhancement factors: (1) thatthe defendant had a previous historyof criminal behavior, and (2) that the defendant abused a position of private trust. Tenn. Code Ann. §§ 40-35-114(1), (15) (1997). W e find that the record supports the use of both factors in this case.

Testimony

at the sentencing hearing demonstrates that the defendant had a long history of criminal behavio r althou gh he had no prior histor y of convictions

or arrests. A t the sen tencing h earing, De tective Long testified that the victim reported that

the abuse had begun when she w as about five years old. The defendant, in his state ment to t he police, acknowledged that he had engaged in sexual contact with his daughter many times before the final incident in September, 1994. Although, evidence of an arrest or a charge may not, without more, be used to enhance a sentence, State v. Marshall , 870 S.W.2d 532, 542 (Tenn. Crim. App. 1993), the defendant’s admission of many in cidents

of abuse i s suffici ent to ju stify the application of enhancement factor (1)

. State v. Alexander , 957 S.W.2d 1, 7(Tenn. Crim . Ap p. 1997) (proof of defendant’s cocaine pr oblem warrants application of factor (1)); State v. Hunter , 926 S.W.2d 744, 749 (Tenn. Crim.App.7 The defendant had been a pa stor up until the early 1980s. 19 1995) (proof that d efendant sexually abused v ictim as often as twice a w eek supports application of the factor). The trial court did not err in using facto r (1 ) t o enhance the defendant’s sentence.

Factor (15) may be used toenhance a sentence when the defendant abuses a position of public or pri vate trust in the commission of the offense. Tenn. Code Ann. § 40-35-114(15) (1997).As the victim’s father, the defendant was charged with her care and contr ol. His acti ons most certainly vi olated a private trust. See State v. Hayes , 899 S.W.2d 175, 187(Tenn. Crim. App. 1995).

With res pect to mitigating factors , the trial court found that th e defendant’s att e mpts to rehabilitate himself w ere worthy of some consi deration. Tenn. Co de A nn. § 40-35-113(13) (1997). The victim testified at the se ntencing hearing that after the incident in September of 1994, he ha d never touched her again. He quit drinking and returned to his church. 7 Before any charge s were made against him, he volunt a rily sought therapy

for his problem. The court, however, rejected the defendant’s arguments that

(1) the d efendant’s conduct neither cause d nor threate ned serio us bodily i njury, Tenn. Code Ann. § 40-35-113(1) (1997); (2) substantial grounds exist tending to excuse or

justify thedefendant’s criminal conduct, Tenn. Code Ann. § 40-35-1 1 3(3) (1997); (3) the defendant was suffering fro m a mental or physical conditio n tha t significantly reduced his culp a bility, Tenn. Code Ann. § 40-35-113(8) (1997); (4) the defendant assisted the authorities, Tenn. Code Ann. § 40-35-113(9) (1997); (5) the de fendant committed the off ense under such unusual circumstances that it is likel y he had no sustained intent to violatethe law. Tenn. Code Ann. § 40- 35-113(11) (1997).8 The trial court apparently believed that this factor was never appropriately applied in child rape cases. 20 The state concedes and we agree that trial court’s refusal to consider mit ig ating factor (1), that the defendant’s c onduct neither caused nor threa tened serious bodily injury

was error. 8 The record contains no evidence indicating

that the victim suffered any bodily injury at all, and the trial court should have giv en th is factor due consideration in its s entencing determination. With respect to the other mitigating factors proposed by the defendant, we find that the evidence in the record does not preponderateagainst the trial court’s findings. The defendant’s abuse of alcohol is not a mitigating factor. See Tenn. Code Ann. § 40-35-113(8). There is
no evidence indicating that h e was helpful to the authorities, and the extended abuse of his daugh ter demo nstrates a sustain ed inten t to violat e the law.

We have, however, found an error in sentencing

that requires that this
case be remanded to the trial court . Rape of a child is a Cla ss A felon y. Tenn

. Code Ann. § 39-13-522 (1997). Range I offenders convic te d of Class A felonies maybe sentenced to no less t han fifteen and no more than twenty-five years. Tenn. Code Ann. § 40-35-112(a)(1) (1997). Before 1995, the pre sumptive sentence for all felonies was the minimum sentence in the range. Tenn. Code Ann. § 40-35- 210(c) (1990) (amended 1995). As o f July 1, 199 5, however , the pres umptive sentence for Classes A and B is the midpoint of the range. Tenn. Code Ann. § 40- 35-210(c) (1997). The defendant committedthe offense for which he was c onvicted in September

of 1994 . He was trie d and con victed in J anuary, 1998 and sentenced in February of that same year. The trial judge mistakenly considered twenty years
as the presumptive minimum sentence. Because this offense occurred before the 1995 amendments took effect, thedefendant is entitled to a presumpti ve minimum sentence of fifteen years. See Frederick R. Porter, No. 03C01-9606-CC-00238,slip op. at 12 fn. 2 (Tenn. Crim. App., Knox ville, Oct. 24, 1997).21 Reducing the minimum sentence from twenty to fifteen years and the inclusion of an additional mitigating factor requires that the trial court reassess the evidence and determine an appropriate sentence. Up on remand, the trial judge shall place on the re cord the findings of fact and the sentenc ing principles that support his new sentencing or der. If either

party appeals from the trial court’s order, the trial court’s complete findings will facili tate any review r

equired i n this co urt.

VIII. Issues that are Waived The defendant inadequately briefed or failed to ad dress thirteen is sues. According to Rule 10(b) of the Rules of the Tennessee Court of Crimina l Appeals, issues that are not s upported by argument, cit ation to authorities, or appropriatereferences to therecord will be treated as waived. We discuss each issue separately but succinctly in numbered order.

A. The Defendant’s Redacted Statement Defendant’s Issues No. 2, 3, and 4 Th e defen dant argues that the redacted version of the defen dant’s
rec orded stat ement should have been exclud ed (1) because the state failed to provi de the defense with a copy in a timely manner; (2) becaus e the redaction altered the meaning of

the tape; and (3) because the redaction amounted to editing by the state.

With respect to the first issue,the defendant cites to three cases that
are onlytangentially relevant to the issue of the state’s timely response. Moreover, if the defendant file d a motio n for discovery purs uant to Rule 16, the record does not include a copy. The defendant has the obligatio n to prepa re a record that allo ws formeaningful ap pellat e review. Tenn. R. App. P. 24(b). When the record lacks evidence necessary for review, this cou rt is precludedfrom considering the issue

. State v. Roberts , 755 S.W.2d 833, 836 (Tenn. Crim. App. 1988).9 The assistant district attorney told the trial court that defense

counsel had not responded to her l etter or telephone calls w hen she requested a date for an exchange of discovery. Six days before trial, the assistant district attorney happened to see defense counse l in the courthouse. She broug ht the packet of material and placed them in his hands. Defense counsel did not dispute the accuracy of her statements. 22

The record in this case, however, indicat es that any delay in the defendant’s receipt of the tape recording was due to defense counsel’s failure to retrieve the discovery packet the district attorney’s offi ce had prepared. 9 The defendant cannot comp lain o f the untimeliness of the state’s response when his own inaction contributed to the delay. Tenn. R. App. P. 36(b).

The brief does not address the latter two issues at

all, and therecord does not contain the original tape. Becaus e we are unable to

compare the redacted version of the tape with the original, we are unable to re nder any de cision concerning the redaction o f the tape.

B. Limitations on Cross Examination of the Victim

(Defendant’s Issue No. 5) The record reflects that the sta te filed a motion in limine seeking t o prevent the defendant from cross examining the victim on her attitude t oward the defendant including whether s he had forgiven him, whether she wanted to see him punished, and whet her she thought he would re-off end. At the mot ions hearing, defense counsel advised the tri al judge that he had no intention of questioning th e victim or other witnesses about such matters. The court granted the motion w ith the caveatthat the defendantwould be entitled to cr oss examine the witness es on any matter raised on direct examination. The defendant has failed to cite to an y specific ins tances in which the trial court inappropriately limited his right to fully cross examine the victim or any other witness. Our r eview of the r

ecord has disclosed none. This issue has no merit.

C. Jury Instructions (Defendant’s Issues No. 10, 11)10 “‘Sexual penetration’ means sexual intercourse, cunnilingus,

fellati o, anal i ntercou rse, or any oth er intr

usion, h oweve r slig ht, of any part of a person’s body or of any object into the genital or anal openings of the victim’s, the defendant’s, or any other per son’s body, but emission of s emen is not required; . . .” Tenn. C ode Ann. § 39-13-502(7).
11 Defendant’s argument in its entirety is as follows: It is obvious that this

statue (sic) is uncons

titutional in at least tw

o aspects one being vagueness and th e other being overly broad. There is no way an ordinary person by the reading of this statue (s ic) could be put on notice as to what conduct was governed without going outside the statue (sic) and as in this case where the jury

trying to decide the case wanted some outside information to aide them in determining w hat the statue (sic) meant. O n the question of the statue (sic) being ov

erly broad See Griswold v. Connecticut , 381 U.S. 379, 14 L.Ed. 2d 510. 23

The defendant alleges

that the trial erred by

failing toinstruct the jury on the general rape

charges set out in the

indictment and then instructing the jury
on a special statutory pr o vision. The defendant has not briefed the se issues; therefore, they are wai

ved.

D. The Constitutionality of Tenn . Code Ann. § 39-13-502(7)

(Defendant’s Issue No. 12)
The defendant argues that the legi slative definiti on o f sexual penetration found in Tennessee Code Annotated s ection 39-13-502(7) is v ague and overly broad. 10 The argument in the brief contains three

sentences and makes no att empt to relate to this court the nature of the precise challenge to the st atute. 1 1 The only cite

is to an inapposite

United St ates Sup reme Cou rt case th at is twent ynine pages in length, and the citation does not in clud e a pinpoint cite. The defendant has failed tosupport this issue with argument and the br ief contains no citation to any relevant

legal authority or

an y a pp ro pr ia

te ci ta ti on s to t he

re co rd . We decline to consider the constituti onality of a statute on th e basi s of such an incomplete briefing. The issue is waived pursuant to Ru le 10(b), Rules of the Tennessee Court of Criminal Appeals. See Thomas Calvin Maney, Jr. v. State , No. 03C01-9704-CR-00135, slip op. at 3 (Tenn. Crim. App., Knoxville, March 23, 1998); State v. Reginald Dion Hughes , no number in original, slip op. at 1-2 (Tenn. Cr im. App., Dec. 14, 1988); State v. JerryBates Long , No. 87-72-III, slip op.at 8 (Tenn. Crim. App. May 11, 1988).24 E. Court Officer’s Com munication with the Jury

(Defendant’s Issue No. 15) The defendant has not briefed this issue. The issue is waived.

F. Replaying of

the Redacted Tape fo r the Jury (Defendant’s Issue No. 16) The defendant has not briefed this issue. Th erefore, it is waive d. H owever, the trial transcript discloses that the trial followed the proper proc edur e in granting t he jury’s request to rehear the tape. See State v. Tune , 872 S.W.2d 922, 929 (Tenn. Crim. App. 1993). The c ourt replayedthe tape in open court in the presence of the defendant and the atto rneys. The court also admonished the jurors not to place undue emphasis onthe tape simply because they had heard it twi ce. State v. Smith , 656 S.W.2d 882, 888 (Tenn. Crim.App. 1983). This issue has no merit.

G. The Weight of the Ev idence (Defendant’s Issue No. 17) This court does not r eweigh or reeval uate the evidence. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). Therefore, we have not addressed this issue.

H. Amendment to the Indictment (Defendant’s Issue No. 19) The defendant has not briefed this issue. Th erefore, it is waived

. Tenn. Ct. Crim. App. R. 10(b). Furthermore, the defendant woul d not be entitled to reliefif the issue were proper ly before this court. F ive da ys before trial, the tri al court allowed the state

to amend the indictment to show that the offense occurred in September, 1994 rather than on September 26, 1994. Rule 7(b) of the Tennessee Rules of Criminal Procedure permits the amendment of an indictment without the consent of the defendant “[i]f no additi onal or different offense is thereby charged and no substantial rights of the defendant are thereby prejudiced. . . .” In this instance, the amendment did not allege any additional or different offense. The25

precise date of the offense was n o t a critical matter in this case because the defendant was not

relyingupon an alibi defense. The amendm ent did not result in any prejudice to the defendant’s subs tantial rights. The trial court did not err in permitting the amendment of the indic tment.

I. Jury instructi on as to the Specific T ime Frame (Defendant’s Issue No. 21) Because the defendant has not briefed this issue, the issue is waiv ed. Tenn. R. Ct. Crim. App. 10(b) . Moreover, the recor d does not disclose that the defendant requested any special instruction on this matte r.

J. Prosecutor’s Closing Argument (Defendant’s Issue No. 22) Because the defendant has not briefed this issue, the iss ue is waived. Tenn. R. Ct. Crim. App. 10(b). Fu rthermo re, defense counsel made no contemporaneousobjection during the prosecutor’s closing argument. See Tenn. R. App. P. 36(b).

Conclusion

We have reviewed the record and theapplicable law and hav e found
no error requiring

a r eversal in this case. Therefore, we affirm the defend ant’s conviction for rape ofa child. However, because the trial court began its sentencing determination at the incorrect presumptive minimum sentence, we remand the case to the trial court for res entencing.

______________________________

JAMES CURW OOD WIT T JR., Judge
CONCUR:

______________________________ DAVID H. W ELLES, Judge26

______________________________ L. TERRY LAFFERT Y, Special Judge