# FILED
January 26, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE NOVEMBER 1996 SESSION

STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9606-CC-00237 ) Appellee ) RHEA COUN TY ) v. ) HON. THOMAS W. GRAHAM, ) JUDGE BILL SANDELL, ) ) aggravated sexual bat tery Appellant )

For the Appellant: For the App ellee: Philip A. Condra Charles W. Burson District Public Defender Attorney General & Repor ter B. Jeffrey Harmon Elizabeth T. Ryan Assistant Public Defender Assistant Attorney Gener al P.O. Box 220 450 James Robertson Parkwa y 204 Betsy Pack Dr. Nashville, TN 37243-0493 Jasper, TN 37347 James Michael Taylor District Attorney General Will Dunn Assistant District A

ttorney General 265 Third Ave., Ste. 300 Dayton, TN 37321

OPINION FILED ________________________

AFFIRMED

JOHN K. BYERS SENIOR JUDGE2 OPINION The defendant was indicted for rape of a c hild and convicted of the les ser included offense of aggravated sexual battery. He was sentenced to ten years in prison and was fined $25,000.00, which the trial judg e reduced to $10,000.00 because of the de fendan t’s indige ncy. On appeal, the defendant challenges t he trial court’s method of impanel ling the jury as inconsist

ent with Rule 24 of Tennessee Rul es of Criminal Procedure, the trial court’s denial o

f a mistrial when testimony of a continuing pattern of molestati on was given, the tr

ial court’s admission of tes timony as to the victi m’s “fresh complaint” and the trial court’s impos ition of a ten-year sentence and a $10,00.00, alleging that the punishment is excessi ve. We affirm the judgment of the trial court. The defendant lived with his wife, Tammy, and her childr en, Gary Barnes and the victim. The victi m was 12 years of age. On October 4, 1992, the defendant gave his wife some Valium, and she fell asleep in the living room. After his wife fell asleep, the defendant came to the vic tim’s room. He pulled dow n her jogging pants and underwear. He then tol d her to pull up her underw ear and walk through t he living room to the w

asher and dryer. The vi ctim testified that he placed her seated on top of the washing machine, pulled down her pants and under wear again, pulled down his pants and placed his penis almost completely into her vagina. At this point, the victim’s br

other returned to the trail er and defendant stopped, telling h er to go into her mother’s bedroom and pretend she had fallen asleep ther e. Standing in front of the washer, a person can view the front door and the living room, whe re the victim’s mother was sleeping. A door opposite the washer and dryer leads to Tammy Sande ll’s bedroom. After Gary Barnes came into the trailer, the defendant announced that i t was bedtime and that the v ictim needed to go to her own bedroom. She walked through the li

ving room to her bedroom, and3

her brother noticed that she s eemed upset. He asked her whe ther anything was wrong, but she told h im that n othing was wrong, she wa s just slee py. The next day, the vict im told her friend, Ladawy a Morgan, what the defendant had done to her the night before. Sh e then talked with a teacher, Amy Bauer, about what had happened. As a result of these conversations, the victim decided to tell her mother what had happened. Ladaw ya Morgan went to the victim’s home with her after school to lend her support. However, when they reached the victim’s home, Tammy Sandell was not ther e. The victim told her brother what had happened. He went to his grandparent’s house and got a pistol. When the defendant and Tammy Sandell returned home, Gary Barnes pointed the pi stol at the defendant. His uncle took the gun away from him, and he went back to his grandparent’s house and call ed the police. In the meantime, the victim, Ladaw ya, Tammy Sandell and the defendant w ent inside the trailer. The defendant and the vi ctim talked privately for a time, and she testified that he threatened her father and her mot her. When the officer arrived, he suggested that every

one go to the Sheriff’s office and make a r eport. The defendant, Tammy Sandell, Ladawya and the victim all trav eled to the police station in the defendant’s truck. At the police station, Officer Charles Byrd spoke to all of the parties as a group. The victim, w

ho was crying and

very upset, told hi m that nothing had happened, that she had made it up because s he was angry w ith the defendant. Officer Byrd and Karen Young, who works for the Department of Human Services, then spoke with the vi ctim alone in Officer Byrd’ s office. She maintained that nothing had happened. Officer Byr d told everyone that they were free to go. The defendant, Tammy Sand ell, Ladawya and the victim left the police station. As they wer

e riding in the truck, either Tammy Sandell or the v ictim said to the defendant, “Bill, you done i t. You know you di d.” The defendant admitted that4

he had done it and said that he would get his stuff together an d leave but “just don’t go to the law.” After dropping off Ladawya, the defenda nt, Tammy Sandell and the victim returned to the trailer. The victim’s father, Kenny Caraway, had heard about what had happened, and he came to the trailer that same evening. He tes tified that the defendant told him to “give him two days and not go to the law, give him two days, he’d get his stuff and be out of here and [ he’d] never see his face ag ain.” The defendant challenges the trial court’s method of impanelling the jury as inconsistent with T ENN . R. C RIM . P. 24. The trial court seated twelve prospectiv e jurors in t he box and an addit ional twel ve prospe ctive juro rs in the f irst two rows behind the bar for voir dire . The defendant complains that this is in violation of Rule 24(c), which provides:

Peremptory Challenge and Procedure for Exercisi ng. -- After twelve prospective jurors have been passed for cause, counsel will submit simultaneously and i n writing, to the tr ial judge, the name of any juror either counsel elects to challenge peremptorily. Upon each submission each counsel shall submit either a challenge or a blank sheet of paper. Neither party shall make known the fact that the party has not challenged. Replac ement jurors will t hen be examined for cause an d, afte r passed, counsel wi ll again su bmit simu ltaneou sly, and in writing, to the trial judge the name of any juror counsel elects to challenge peremptorily. This procedure will be followed until a full jury has been selected and accepted by counsel. Peremptory chal lenges may be directed to any member of the jury, and counsel shal l not be limited to replacement juror s. Alternate jurors w

ill be selected in the same manner. The trial judge w ill keep a list of those chal lenged and, if the same juror is challe nged by both parties, eac h will be charged with a challenge. The tr ial judge shall not dis

close to any juror the identity o f the party c

hallenging

him. It is the defendant’s burden to prov e prejudice in the selecti on of a jury. State v. Coleman , 865 S.W.2d 455, 458 (Tenn. 1993). Appellant argues that his ability to fully examine prospective jurors was hampered by the fact that some of these jurors were too distant for him to be able to fully gauge thei r expressions and reac tions to questions. He submitted an a ffidavit in his motion for new trial in which he t

estified that he had measured the distance betw een the podium where he stood and t he5

second row behind the bar an d estimated an average of 27 feet betw een him and the farthest prospective j urors. We do not find the defendant was prejudic ed by the distance between the prospective jurors and the questioning attorneys. However, we do strongly r

ecommend, as the Supreme Court did i n Coleman , that the trial court follow the proper procedure for impanelling juries in the future to avoid prejudice to the judicial process. See Coleman , 865 S.W.2d at 458. The defendant also argues that the tr ial court erred in deny

ing a mistrial whe n witnesses gave tes

timony implying a c

ontinuing pattern of molestation despite the fact that the State was only prosecuting one occurr ence. We find the incidents to which the defendant refers did not require the trial c

ourt to declare a mistrial . The decision to grant a mistr ial is a matter of discreti on for the trial court, State v. McPherson , 882 S.W.2d 365 (Tenn. Crim. App. 1994), whic h should be exercised with “the greatest caution” and only in “the most urgent circumstances.” State v. Witt, 572 S.W.2d 913, 917 (Tenn. 1978) The trial court properly provided curative instructions on the two occasions where witnesses offered s pontaneous, nonresponsive test imony which sugg ested that there might have been pr evious sexual molestat ion of the victim by the defendant. These curative instr uctions were well -crafted so they would not highlight the objectionable testimony. We must assume that the jury followed the instructions of the trial court. State v. Baker , 751 S.W.2d 154, 164 (Tenn. Crim. App. 1987) ( citing State v. Lawson , 695 S.W.2d 202, 20 4 (Tenn. Crim. App. 1985). The defendant cites two other incidents which he argues required a mistrial

. One was a question by the attorney general, w ho asked the victim w

hether the defendant had ever threatened her pr eviously, to whi ch the witness did not r espond. Another incident was the v ictim’s testimony on r

edirect that she and the defendant had serious problems. We do not find that this w ould suggest prior s

exual batteries to the jury, and it is, in fact, very similar to testimony that the defendant elicited in his6

cross-examination of the victim to demonstrate that the victim and the defendant did not get along well. The def endant a lso argues that the trial cour t erred in allowing La dawya Morgan Luna, Amy Bauer and O fficer Charles Byrd to tes tify as to the fact and details of what Tanya told them about what happened the evening before. This testimony was allow

ed into evidence on the theory of fresh complaint, which has since been held not not to apply in cases where a chil d is the victim of sex abuse. State v. Livingston , 907 S.W.2d 392 (Tenn. 1995). The state argues that t here was no prejud ice to the defend ant since the evide nce was adm issible as corrobor ative evidence of prior consis tent statements. The defendant argues that the prior consistent statement rule shoul d not apply in this case, si nce the state first brought out the victim’s incons istent statement to Officer Byrd during its direct examination. However, the defendant clearly attacked the victim’s c redibility on cros s-examination. Defense counse l asked her three times if she had lied to Officer Byrd and Ms. Young and then asked if she then told them “a new story .” He attempted to show that the victim was mad at her stepfather because of disagreements betw een him and her mother. He attempted t o show that she was freq uently in trouble for ly ing. He also tried to show that the events on that evening as the victim describe d them were unlikely , since it took place not far from where her mother was sleeping and becaus e of the medical evidence. He asked w hether she told her brother the truth when he came home that night. The defendant was clearly at tacking the victim’ s credibility and s uggesting that she had fabricated her testimony because she was mad at the defendant. The testimony of Ladawya Mor gan Luna and Amy Bauer is cl early admissible for corroboration of Tanya’s tes timony by statements consi stent with her testimony made prior to her inconsis tent statement. See State v. Meeks , 867 S.W.2d 361, 374 (Tenn. Crim. App. 1993) cert. denied 114 S. Ct. 1200 (1 994). The trial ju dge7

gave the jury a l imiting instruction, explaining that their testimony as to the facts and details of what the victim told Ladawya Morgan and Amy Bauer was not evidence that what the victim s

aid was true, but only

evidence as to the vi ctim’s credibility

. Officer Byrd testified that the victim told him that nothi ng had happened, that she was mad at the defendant. He did not testify as to anything

else the victim told hi m. We find this statement did not prejudice the defendant. Finally, the defendant objects to the sentence and fine imposed upon him a s excessive. The range for a Ran ge I offe nder for a Class B f elony is ei ght to twelve years. Review of the length, range or manner of service of a sentence is de novo on the record, accompanied by a presumption that the det erminations of the trial court are correct. T.C.A. § 40-35-401(d). However, the presumption of correctness only applies upon an affirmative show ing that the trial cour

t considered the relevant sentencing principles. State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). The burden is upon the defendant to show the impropriety of the sentence . T.C.A. § 40- 35-401(d) Sentencing Commission Comments. The presump tive sentence in a felony case is the minimum in eac h range unless the enhancement factors outweigh the mitigating fa ctors. The court must start at the minimum sentence and enhanc e accordingly for the en hancement factors and reduce according ly for the mitigating factors. T.C.A. § 40-35-210(c ). The trial co urt in this

case found thr

ee enhancement

factors appl ied and gav e some consideration to two mitigating factors. The trial court applied as en hancing factors that defendant has a pr evious history of criminal convictions or criminal behavior, that the offense involved a victim and was committed to grati fy the defendant’s desire for pleasu re or excitement and that the defendant abused a position of pri vate trust. The trial court improperly considered the fact that the offense w as committed to gratify the defendant’s desi re for pleasure or excitement as an enhancing factor.8

The offense of aggravated sexual battery requires as an element of the offense that the touching be for the purpose of sexual arousal or gratification a nd, therefore, this intent cannot also be used as an enh ancing factor. State v. Kissinger , 922 S.W.2d 482, 486 (Tenn. 1996). The state argues that the court could have applied the enhancement factor that the defendant has a previous hi story of unwilling ness to comply with the conditions of a sentence invol ving release into the

community, because the presentence report indicates that the defen dant was found in violation of his probation for an aggravated assault conviction. We agree that this factor applies. The trial court considered the fact that defendant’s prior conv ictions occurred at a young age as partial mitigation of the enhancement fact or of a previous history of criminal convictions or criminal behavior. He also somewhat considered as a mitigating factor that the defendant had provided his family with necessities. We do not find this mitigating factor to be supported by any proof in the record. We agree with the attorney general’s argument at sentencing that this mitigation factor is extremely inappropriate considering the victim of this offense was the def endant’s step-daughter. The defendant argues that the trial court erred in failing to consider that the defendant’s conduct neither caused nor threatened serious bodily injury in mitigat ion of his sentence. The state argues that the trial court properly did not app ly this factor because his attempts to penetrate th e vagina of the victim, who had not fully passed through puberty, c ould have torn her hymenal membrane or caused other internal damage. The trial court stated that, if this fact or did apply, “very, very little weight” could be acc

orded to it. We agree. We find the balance of the applicable enhancement and m itigating factors is in favor of enhancement. The record s upports the trial court’ s sentence of ten years’ imprisonment.9 The defendant al so challeng es his fine, w hich is rev

iewable un der the same standard as a sentence of incarcer ation. State v. Bryant

, 805 S.W.2d 762 (Tenn. 1991). The fine should be based on the factor s to be considered in setti ng the sentence and upon the defendant’s abilit y to pay the fine. Bryant , 805 S.W.2d at 766. Although the defendant is indigent, he comm itted a serious crime and his sentencing factors balance toward enhancement. W e find that the fine is appropriate and not excessi ve. We affirm the judgment of the trial court and, finding the defendant to be indigent, assess the cost s of appeal to the State of Tennessee.

John K. Byers, Sen ior Judge CONCUR:

Joseph M. Tipto n, Judge

Paul G. Summe rs, Judge10 

# FILED
January 28, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk January 26, 1998 IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE NOVEMBER 1996 SESSI ON

STATE OF TENNESSEE, ) ) Appellee, ) No. 03C01-9606-CC-00237

) ) Rhea County v. ) ) Honorable Tho mas W. G raham, Judge ) BILL SANDELL, ) (Aggravate d sexual ba ttery) ) Appellant. )

CONCURRING OPINION

I concur in the majority

opinion’s results and most of its reasoning. How ever, I question the extent to w hich it appears to allow the victim’s prev

ious statements to others to be admitted into evi dence to corroborate her test imony once her credibil ity was attacked. It is not

every attack on cr

edibility that allow

s for the use of prior statements.
Ordinarily, prior

consistent statements of a wi tness are not admissible to bo lster the witness’ credibi lity. State v. Braggs , 604 S.W.2d 883, 885 (Tenn. Crim. App. 1980). Use of such statements has been v iewed as cumbersome, a w aste of time, confusing and unduly prejudicial. Without the prohibition, a party coul d use a parade of witnesses who heard the witness

say something similar, resulting in the jur y being influenced to decide the case on the repetitive nature of or the content s of the out-of-court statements rather than on the in-court, sworn testimony

. See Curtis v. State , 167 Tenn. 430, 437, 70 S.W.2d 364, 366 (1934); Neil P. Cohen, et al., Tennessee Law of Evidence § 608.11, at 360 (3d ed. 1995). However, once the opponent of a witness11

brings the issue of credibility to the forefront by attacking or impeaching that witness’ testimony, through cros s-examination or other ev idence, we allow c

ertain types of witness rehabilitati on to occur through corr oborative proof to rebut the at tack. A key component for admissibility , though, is that the prior statement must be relevant to rebutting the attack.

In this case, as the majorit y opinion points out, the defendant sought to show that the victim was mad at him because of disagreements betw een him and her mother. The defendant’s goal was to show that the victim had a motiv e to accuse him falsely. However, th e record re flects t hat the d efenda nt was atte mpting to show that t he motive existed at the time of the initial accusation and carried forw ard through the trial. Under these circumstances, the pri or consistent statements did n ot rebut this attack -- n o statement was shown to hav e occurred before the motive t o fabricate was implied to have risen. See , e.g ., Sutton v. State , 155 Tenn. 200, 204, 291 S.W. 1069, 1070 (1927); Dietzel v. State , 132 Tenn. 47, 72, 177 S.W . 47, 53-54 (1915). In other words, the test imony and the prior statements woul d all have occurred w ith the motive to fabrica te. Thus , the prio r stateme nts were no t relevant to rebutt ing the cla imed mot ive to lie. See State v. Kendricks , 891 S.W.2d 597, 60 3 (Tenn. 1994).
Similarly, the fact that the defendant tried to show that the victim frequently lied and tried to show that the as sault did not occur because of its claimed proximity to her sleeping mother and because of the negative medical evidenc e does not allow for the use of the prior statements. In s imilar fashion to the motive to fabricate, the claim that the victim is a frequent liar is not rebutted by

evidence that she has made a pr ior statement consistent with her trial testimony -- evidence of chronic ly ing would affect the prior statement, as well. As far as the defendant’s claim that th e physical evidence did not support her testimony abo ut an assault, the evidence of prior consistent statements would, ag ain, have no

relevance

to rebuttin g such a cl aim.12

General attacks upon a witness’ credibility do not, by themselves, ope n the door for admission of prior consistent statements.

The pivotal points, though, relate to the evidence - - presented by the state -- that the victim did not tell her brother and mother of the assau lt on the night it occurred and that the vic tim told Officer Byrd in her first statement to him that nothing had happe ned. Initially , I do not believ e that th e state s hould be allow ed to jus tify presenting the victi m’s claimed prior consis tent statements as corroborati on of her testimony when the state, itself, presents the evi dence that would giv e rise to a question of the victim’s credibi lity. On the other hand, a nd as in this case, when defense counsel relies upon the evidence that attacks credibility , through cross-exa mination or otherwise, then the state may seek to corroborate the v ictim’s testimony w

ith relevant prior consistent statements

.

As for the fact that the victi m did not tell her brother and mother on the night of the assault, it brings into play the basic reas oning behind the fresh-complaint doctrine. That is, to the extent that the v ictim would be expect

ed to complain immediately to others about the assault, her l ack of complaint could support an inference that the assault did not happen. To rebut thi s negative inference, it would be relevant for the state to show that the defendant had t hreatened her if she told anyone and that the next day -- away

from the defendant -- she told people at school that the defendant had raped her. However , disclosure of the details o f the assault would not be neces sary to rebut the negative inferenc e.
As for the victim’s first statement to Officer Byrd that nothing happ ened, it is a prior inconsistent state ment relative to her tri al testimony and the defendant rel ied upon that fact in cross-examini ng her. Therefore, the vic tim’s statements at school ar e prior consistent statements relev ant as corroboration to the v ictim’s testimony, re

flecting13

what she said when the d efendant was absent. Similarl y, the victim’s c

omplaint of rape to Officer Byrd in her sec ond statement when she was, again, away from the defendant is relevant for corrob

orating her testimony and for placing doubts on her pr ior claim that nothing happened. As before, though , I doubt that disclosure of the de tails of the assault would be necessar y to rebut the negativ

e inferences.

However, the few deta ils of the offense that were disclosed by the witness es to the victim’s prior statements were elicited by the defendant’s cross-examination. Thus, although the state inappropriately presented the victim’s prior complaints in its direct examination of her, I do not beli eve that such evidence mor e probably than not affected the verdict to the defendant’s detriment. See T.R.A.P. 36(b). Once the defendant cross-examined the vi ctim as he did, the corrobor ating testimony elici

ted by the state from the other witnesses w as appropriate. Therefore, I concur in affirming the judgment of conviction.

___________________________ Joseph M. Tipton, Judge