### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT KNOXVI LLE Ja nuary 27, 200 4 S es sio n

STA TE OF TEN NES SEE v. BO BBY JOE GENT RY

Direc t Appeal from the Cr im inal Cou rt for K nox Coun ty No. 72766 Richard Baumgar tner, Judge

No. E2003-01069-CC A-R3- CD May 6, 2004

A Knox C ounty

jury convicted the Def

endant, Bobby J oe Gentry
, of ag g ravated ra pe, and the trial

c ou rt se nte nc e d th e De fe nd ant as a re pe a t vi ole nt o ff e nd e r t o li fe in p ri so n w ith ou t th e po ssi bil ity of pa ro le . T he De fe nd a nt a

pp e a ls, c on te nd ing that: ( 1) the e vid e nc e is i ns uf fi cie nt to su pport hi s conviction; (2) the trial court e rre d when it failed to dismiss the indictment; (3) the tria l court er red when it cha

rg ed the jury

on the eleme nts of ag g ravated ra pe and ag g ravated sexual battery and on the culpable mental state; (4) he wa s denied e ffe cti ve assistanc e of c ounsel; (5) Te nnessee Code Annotated se ction 40-35-120 ( 1997 ), u nder w hich the De fenda nt was sentenc ed as a violent offe nder, is unconstitutional; and (6) the trial court erre d when it found that the D efe ndant qualified as a violent off

ender pursuant to Tenne ssee Code Annotated sec tion 40-35-120. Finding no

re ve rs ibl e e rr or , w e a ff

ir m th e tr ia l c ou rt ’s jud g me nt.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Cr im inal Cou rt A ff irm ed

R OB E R T W. W EDEMEYER , J
., delivere d the opinion of the court, in which G AR Y R. W ADE , P.J
., and A L AN E. G L EN N , J ., joined.

Russ Gre ene (at t rial) and Mike G. Nassios (at hearing on the motion for new trial and on appe al), K n o x v i l l e , T e n n e s s e e , f

o r t h e ap p e l l a n t , B o b b y J o e G e n tr y.

Paul G . Su mme rs , At torne y Ge ne ra l a nd Re po rt e r; Da vid H. F ind le y , As sis ta nt A tto rn e y Ge ne ra l; Randall E. Nichols, District Attorney Gene ral; James N. Ramsey , District At t o rn ey Gene ral Pro Tem; and Jan Hicks, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

. Opin ion I. F ac ts

Th is c a se ari se s ou t of

a n a g g ra vate d r ape of

the vic tim . In M arc h o f 2 00 1, the Kn ox Cou nty Gra nd J ury

indicted the De fenda nt f

or one count of ag g ravated rape and two counts of r ape, and the indictment was sig ned by the Knox C ounty

District Attorney

Gene ral, Randa ll E. Nichols. On Aug ust 9, 2001, the trial court wa s petitioned to recuse Gene ral Nic hol s an d ap p o i n t a District-2-

At torne y Ge ne ra l Pro Te m bec a us e Ge ne ra l Nic ho ls ha d pre vio us ly re pr e se nte d the De fe nd a nt w hil e the g ener al was in private pra ctice. T he t ri al court gr anted this petition and appointed Ande rson Cou nty Di stric t A tto rn e y

Ge ne ra l Jam e s Ra mse y

a s D ist ri c t A tto rn e y

Ge ne ra l Pr o Te m to pr os e c ute this case.

A. Evidence P rese nted at Trial

The following evidenc e wa s prese nted at the Def endant’ s trial. The victim testified that she was born in 1985 a nd that in Ma rch of 2001 she was living in Clax ton, Tennesse e, with her fathe r, stepmother, and sister . The victim, who wa s fiftee n y ear s old at the time, stat ed that she met the Def endant in J an u ar y o r Februa ry of 2001 throug h her c ousin, Christi ne Medlin, whom the Def endant wa s dating at the time. The vic tim stated that, prior to Ma rch of 2001, she had se en the Def endant e very

wee kend or e very

other we ekend at Medlin’s apartment, located in Knoxvill e, and she and the Def

endant “ g ot along g reat.” The victim testified that, on Saturday , Marc h 10, 2001, she

c a lle d M e dli n a nda sk e d if sh e c ou ld go to Med li n’ s a pa rt me nt and

sp e ndthe nig ht. Th e vic tim stated that Medlin told her that she w as g oing out with a f riend, but she would ha ve the De fenda nt come g et the victim and take her to the apartment. The victim testified t hat t he Defenda nt picked her up betwee n 3:30 p.m. and 4:30 p.m ., and the two we nt to the liquor store wher e the De fenda nt bo ug ht v od ka

a ndthe n to the g ro c e ry sto re wh e re the De fe nd a nt b ou g ht o rang e jui c e . T he vic tim stated that they

then went to Medlin’s a

partment, whe re the victim talked on the phone to friends and lis te ne d to mus ic un til Me dli n c a me ho me wi th h e r f ri e nd , St a c y

Part on , at aro un d 8 :30 p. m.

The victim testified that, af ter Medlin came home, she sat on the floor while Medlin, Parton and the De fenda nt were on the couc h. She said that she drew pi cture s and that they wer e “just j oking around, w atching TV, and listening to music” for a pproxi mately

two hours. The vic tim st ated that she g ot tired and that Medlin, Parton a nd the Def endant went into the bedroom. She said that she laid down on the couc h in the living roo m t o go t o s l eep at around 11:30 p.m. wea ring a “bla ck sports bra with a bla ck shirt over it, panties, and som e beige shorts” and cover ed by a blanke t. The victim testified that, when she went to sle ep, she was in the living room by herse lf and that she ha d the te le vis ion on . T he vic tim state d th a t th e ne xt thi ng that sh e re me mbe rs wa s th a t sh e “ fe lt

so me thi ng , a ndI

wo ke up , a nd[the De fe nd a nt] w a s [o]n the fl oo r b e sid e the c ou c h. ” Th e vic tim testified t hat, at this time, the Defenda nt “had his fing er up me” and did not say anything. She state d that it felt like a scr ap e o r a p i n ch and that she turne d over a way from the De fenda nt and started
y elling f or Medlin. The victim state d that the Def endant sa id, “What are y ou doing? W hat ar e y ou tripping on? Sit down. L eave them alone.” The victim said that she we nt to Medlin’s bedroom and Medlin asked he r wha t was wrong beca use she wa s crying, and t h e v i ct i m told her wha t the De fe nd a nt h a d d on e . T he vic tim te sti fi e d th a t Me dli n a nd P art on , who w a s in the be dr oo m w ith Medlin at the time, both g ot up and took the victim back to her house.

The victim testified that Parton and Me dlin took her home at about 3: 45 a.m. and that, on the way home, she c alled her

pare nts from Medlin’s ce ll phone and told them she wa s coming home and neede d to talk to them. She said that, when she a rrived at home, she told her pa rents what had happene d. The victim said t hat s he and her father then l eft in her father ’s car, followed by Parton-3-

and Medlin in Parton’s car, and went to Medlin’s apartment, wher e they called the police and w aited outside until pol ice a

rrived.

The victim stated that, on Mar ch 12, 2001, she w ent to the crisis center a nd was e x amined by Pe nn y Mc Do na ld. Th e vic tim

te sti fi e d th a t th e e xami natio n w a s “ ve ry pa in ful.” Th e vic tim stated that “[McDona ld] had to check me down t here beca use of what he did, and about a . . . f ew centimeter s in, she pushed on this one part, and it hurt so bad.” The victim stated that she ha d never been sor e in her

vag ina bef

ore be ing attacked by

the Def endant.

On cr oss-examinat i o n, the victim stated that she wa s fiftee n at the time of the r ape. T he victim stated that, befor e this incident, the De fenda nt had neve r made any overture s or “of

f-c olor”
comments to her. She stated t hat, when she woke up, the Def endant wa s sitti ng next t o the couc h with his hand up throug h the leg of her shorts and inside her vag ina. The vic tim st ated that, be fore the inc ide nt, sh e ma de a ph on e c a ll to a fr ie nd na me d J on a than, wh o w a s a lso fi ft e e n. Th e vic tim
st at ed t h at s h e met J onathan two we eks bef ore the incident and that he had since moved from the

are a. The victim also sa id that she may have talked on the phone with a man name d Casey , who was

e i g h t e e n o r

n i n e t e e n a n d w h o m s h e k n e w t h r o u g h f r i e n d s

. T h e v i c t i m s t a t e d t h a t , i n t h e t h r e e d a ys befor e the incide nt, she did not have a ny kind of sexual penetration at all.

Christine Jessica Medlin, the victim’s cousin, testified that she lived in Knoxvil le with the Def endant in Mar ch of 2001. Me dlin testified that the apartment in which the couple lived had one be dr oo m, andne ith e r s he no r the De fe nd a nt w e re e mpl oy ed a t th e tim e of the inc ide nt. Me dli n stated that she a nd the victim were cousins and that they had a g ood relationship. She said that, on Marc h 10, 2001, she we nt to a wedding with her friend Parton, whom she had know n for approximately

one month. Medlin testified that, befor e g oing to the wedding , the victim called a nd said that she wanted t o come over, so Medlin made arrang ements for the Def endant to pick up the victim from the victim’s house and bring he r to Medlin’s apa rtment. Medlin said that she and Parton

re t u rn ed fr o m t h e we d d i n g b et we en 8 : 0 0 p

. m

. an d 9 : 0 0 p

. m

. t h at ev en i n g an d t h at , at t h e w ed d i n g, she did not consume any alcohol. Medlin stated that, whe n she re turned fr om the wedding , the Def endant wa s drinking vodka and orang e jui ce. She said that she, P arton a nd the Def endant we nt to bed at around 12:30 a.m. t hat evening and t hat, when they went to bed, the victim was in the living

room.

Medlin testified that the nex t thing that she remembere d was the victim calling her na me and crying. Me dlin said that, when she hear d the victim, she told her to come in the be droom, and the victim told her that “she woke up to [ the Def endant] touching her.” She said that, prior to this, she last saw the De fenda nt asleep in the be d with her a nd Parton. Medlin s t at ed t h at t h e three we re stric tly sle e pin g a ndthat th e re was “no th in g s e xua l” g oin g on be tw e e n th e m. M e dli n s ta te d th a t, when the victim came into her room, the vi ctim was cry ing and “shaken up” and could “hardly talk.” Medlin stated that, af

ter the vic tim tol d her w hat had ha ppened, she g ot dressed a nd she and Parton took the victim home. Medlin said that, as t hey wer e leaving, she saw the D efe ndant ly ing on the couch, and he did not say anything to them as the y left.-4-

Medlin stated that, as they wer e driving the vi ctim home, t he victim called her father, a nd the victim’s father

and stepmother w ere awa ke and wa iting for

them when they

arrived. Medlin said that she told th e v i ct i m’s fathe r what had happe ned, and the n all of them drove straig ht to Medlin’s apartment in Knox ville. Medlin testified t hat t he victim ’s father called t he poli ce from outside her apartment, and she a nd Parton went into the apa rtment to wait for the police and found the De fenda nt aslee p on the couc h. Medlin said that she and Parton waited in the bedroom for the police to ar

rive, while the victim and her

fathe r wa ited outside.

On cr oss-examination, Medlin testified t hat s he met P arton fr om a telephone dating service
, and Parton wa s listed in the lesbian section of the s ervic e. Medlin stated t hat neither she nor Parton dr a nk on the da y

of the ra pe . She a lso sa id that she wa s “se e ing ” Part on a t the tim e of the inc ide nt, and the De fenda nt had a pr ob l em with her re lationship with P arton. Medlin stated that she knew J onathan throug h the victim, but that he had never stay ed at her apartment. She also said that she knew a man named Ca sey

throug h the victim and the victim’s father. Medlin ex plained that Casey

was a “f riend of the family ’s” a nd came over to the a partment “ from time to time” to visit, but he had neve r stay ed at the a

partment. Meldin testified that she dated Parton for almost a y ear , but that they broke up in September. Medlin said that, when she was dating the Def endant, they

would arg ue beca use he dr ank too much and he had a ba d temper.

J ennife r Uthe, the victim’s stepmother, testified that, bef ore Ma rch 11, 2001, she did not know the De fenda nt personally , but knew of him as he r ni ece ’s boy friend. J ennife r Uthe testified that, during the ea

rly mornin g h o u rs of March 11, 2001, the vic tim called her crying and sounded “hy sterica l.” She said that she could not understand the victim clea rly and then the victim ga ve the phone to M ed l i n

. J ennife r Uthe state d that, shortly there afte r, the victim ca me home and w as “[h] y sterica l, crying, [and] upset.” She said that the vi ctim told them that the Defenda nt had touched he r. Jenn if

e r U the te sti fi e d tha t her hu sb a nd , the vic tim , Med lin a nd Part on the n le ft

the ho us e wh ile she stay ed home. On cross-examination, J ennife r Uthe testified t hat s he had met J onathan, who w as t h e v i c t i m ’ s f

r i e n d

. S h e a l s o s t a t e d t h a ts h e k n e w C a s e y.

Michae l Uthe, the victim’s fa ther, testified tha t on, Ma rch 11, 2001, his wife woke him up

a t aro un d 5 :00 a .m. He state d th a t, w he n th e vic tim arrive d a t the ho us e , sh e app e are d “ [v]e ry up se t, crying, [and] shaky ,” and she told him that “she had bee n violated” by the Def endant. Micha el Uthe stated that he the n took the victim back to Medlin’s apa rtment and c alled t h e poli ce f rom his car
, which wa s parke d outside the apartment. He stated that he took the victim to the ra pe crisis center on Monday , Marc h 12, 2001, beca use i t was closed on Sunday

. On cr oss-examination, Michael Uthe stated that he knew J onathan, who w as the victim’s friend, and he also knew Case y Maxey , who was a fa milyfriend.

Penelope Mc Donald testified that she is the sexual a ssault nur se examiner coordinator at the Sex ual Assault Crisis Center and that he r org anization works collaborativ el y wi t h l ocal law enfor ceme nt in Knox ville as part of a sexual assault response t ea m

. M cD onald testified that she examined the victim in March of 2001 afte r Kathy Pappas, a police office r with the Knoxvi lle Police De pa rt me nt, c a lle d to make the vic tim a n a pp oin tme nt. Mc Do na ld s ta te d th a t, a ft e r s pe akin g wi thDeoxyribonucleic acid. 1

-5- Of fi c e r P app a s, sh e int e rv ie we d th e vic tim a ndthe n c on du c te d a

fo re ns ic e xami natio n. Mc Do na ld testified that the victim told her that she “ was spending the nig ht w i t h h er co u sin and had be en [woken] up i n the middle of the nig ht, and her cousin’s boy friend had his ha nd in her pa nts and was fon dl in g he r. ” She a lso sa id that th e vic tim c omp la ine d o f s ome dis c omf ort in he r p ri vate pa

rt s. McDona ld expl ained that, be cause the victim stated that s h e h ad b een digitally penetr ated, McDona ld did not collect any specimens f

rom the victim’s g enital ar ea. Mc Donald stated tha t she perf o r me d a p e lv ic e xa m o f th e v ic ti m a n d s h e f o u n d a s ma ll la c e r a ti o n o f th e la b iaminora and a bruise rig ht next to that same laceration. McDona ld testified that, when she perf ormed this part of the examination, the victim complained that it was very painful. McDona ld opined that the injuries

wer e “a cute” injuries, meaning that they wer e still in t he ea

rly stag es of he aling and we re not ve ry old. McDonald e x plained that the injuries oc curr ed within the pre vious 72 hours of t he examination. She stated that the injuries we re c onsistent with the penetration by a finge r. On c ross-examination, McDona ld admit t ed t h at another instrument, other than a fing er, c ould cause a similar bruise. McDona ld also stated that the De fenda nt’s fing erna ils had not been tested f or DNA evidenc e.

1

Kathy Papp a s, a n in ve sti g a tor

wi th the Kn oxvil le Pol ic e De pa rt me nt, te sti fi e d th a t th e vic tim

a ndthe vic tim ’s fathe r c a me to the po lic e de pa rt me nt at 9: 40 a .m. on Ma rc h 12, 20 01 , to ta lk w ith

an investigator, and she volunteere d to meet with them. Offic er Pappa s testified that she took the victim t o th e Se xu a l A s s a u lt Cris is Ce n te r

to b e e xa mi n e d

. T h e o f f ic e r s tate d th a t, late r

th at afte rnoon, she a nd another office r went to the Defenda nt’s apartment to transport him to the police station for questioning . Offic er Pappa s stated that the De fenda nt waived his rig hts and that she then asked the Def

endant about the events of t he previous evening

. The officer said that the De fenda nt told h e r th a t h e p ic k e d u p th e v ic ti m f r o m h e r h o me a n d b r o u g h t h e r to h is ap ar tm e n t, w h e r e she talked on the phone and watche d some television until Medlin and Parton returne d. Offic er Pappa s said that the De fenda nt told her that he had not be en drinking and that Medlin wa s a “dr ug user a nd was in re covery and that he was just try ing to ke ep her straig ht and kee p her of

f drug s.” The of

fice r testified that the De fenda nt denied “e verything a nd said that he did not have se x with [ the victim] .” On cross-e x amination, the office r stated that the Def endant told he r that he went to sle ep that nig ht on the sofa in the living room and that the vic tim went to sleep on the floor. The officer testified that the Def endant sa id that, at some point, the victim wanted the sofa, so he switched place s with her.

J ohn L awson, a n office r with the Knox ville Police Depa rtment, testified t hat he was c alled to M e dli n’ s a

pa rt me nt at app ro xima te ly

6:0 0 a .m. on Ma

rc h 1 1, 20 01 . T he of

fi c er te sti fi e d th a t, wh e n h e arrive d, the vic tim , h e r f a the r andMe dli n w e re wa iti ng in the pa rking lot , a ndthe y

a ll

seeme d “upset.” Offic er L awson testified tha t he sent the victim to the police de partment a nd that Offic er Pappa s took over the c ase f rom there

. Stacy Parton testified that she ha d known the De fenda nt for one month prior to the inc ident beca use he w as Medlin’s boy friend. Parton te s t ified that, on Saturday Marc h 10, 2001, she and Medlin went to Parton’s cousin’s w edding and that they came back to the a

partment be tween 8:30 p

. m

. an d 9 : 0 0 p

. m

. P ar t o n s t at ed t h at n ei t h ers h e n o r M ed l i n co n s u m ed an y al co h o l at t h e w ed d i n g.-6-

She said that, afte r she a nd Medlin arrived at the a partment, they

“sat a round,

. . . watche d TV, . . . talked, and went to be d” betwee n 11:00 p.m. and 12:00 a.m. Parton testified that she, Me dlin and the Def endant we nt to bed in the bedroom a nd that the victim was in the living room on the c ouch. P art on tes ti fi e d th a t, a ft e r s he we nt t o s le e p, the ne xt thi ng that sh e re me mbe re d w a s th e vic tim

“ be a tin g on the do or . Sh e wa s c rying a ndup se t.” Part on state d tha t, wh e n she wo ke up , only Me dli n was in the be droom with he r. She said that, afte r the victim c ame into the bedroom, the victim tried to tell them what had happened. Parton said that she told Medlin that they should be quiet and lea ve so that Parton and Medlin could c alm the victim down and understand her better. Parton testified that the Def

endant wa s in the l i v i n g room when the y wer e lea ving. She stated that the De fenda nt asked he r what was wrong with the victim, and she re sponded that she did not know.

Part on state d th at, a ft e r the y le ft Me dli n’ s a

pa rt me nt, the y

we nt t o th e vi cti m’ s p are nts ’ house. She said that, whe n they arrived at the vi ctim’s home, Medlin and the vic tim went into the house and ta lked t o the vi ctim’s fathe r. Parton explained that she and Medlin left i n her c ar a nd that the victim and t he victim ’s father left in his car , and they both drove ba ck to Medlin’s apa rtment and called the police.

The De fenda nt called the vic tim to t estify and she state d that she reme mbere d meeting Casey Maxey at McDona ld’s from time to time and that she would meet him at pl ace s with friends. The

v i c t i m s t a t e d t h a t s h e d i d n o tr e m e m b e r e v e r b e i n g a tM e d l i n ’ s ap ar t m e n ta tt h e s a m e t i m e a s M a x e y, but she was not sure if that was c orre ct. The vic tim admitt ed that she sa id at the pre liminary hearing that her shorts were tight ar ound the waist and tight around the leg s, but de nied that her state ment

wa s a c c ur a te , s ta tin g , “ I

do n’ t w e ar t ig ht c lothe s. Th ey are un c omf orta ble fo r m e .” Th e vic tim
state d th a t sh e ha d s e e n M a xey in the la st f

ive or six mo nth s, bu t th a t sh e no lon g e r s po ke wi th h im be c a us e the y

no lon g e r h a d a nythi ng to t a lk a bo ut.

Ba sed upon the for eg oing e vidence , the jury convicted the Def

endant of ag g ravated ra

pe, and
t h e t ri al co u rt s et a d at e f

o r t h e s en t en ci n g h ea ri n g.

B. Se nt e nc ing He ar ing

On J une 26, 2002, the tria l court held a sentenc ing he aring, af

t er wh i ch it sentenc ed the Def endant to life in prison without the pos sibili ty of parole. The Defendant was repre sented by new

co u n s el at t h e s en t en ci n g h ea ri n g. At the conc lusion of the sentenc ing he aring , the trial court found:

[Th e De fe nd a nt] ha s bee n co nv ic te d in this ca se of a g g ra vate d rape by a jury of his peer s . . . as a c lass-A felony . Section 40-35-120, with re g ard to re peat violent offe nders pr ovides that, “A r epeat violent offende r is a def endant who, under (a )(5)

or (6 ) i s c onvi cte d in thi s st a te a ft e r Jul y 1, 19 95 , o f any

of fe ns e c la ssi fi e d in subdivision (d)(1), as a violent of fense
, and has at least one prior c onviction for an offe n se cla ssified in (d)(1) or (d) (2) a s a violent offe nse, with the exception of robbery by the use of a

deadly wea pon.” . . . (d) (1) include s the convictions of ra pe. I t appe ar s , a n d I f

in d f r o m th e r e c o r d in th is c a u s e [, ] th a t [t h e D e f e n d ant] was-7-

pr e vio us ly

c on vi cted o f t wo c ou nts of ra pe in the Kn ox Cou nty

Cr imi na l Co urt in 19 87 wi th the jud g me nt o f the Cou rt , b e ing ente re d o n Jan ua ry 20 th, 19 87 , in D i v i s i o n IIo f

C r i m i n a l C o u r to f

K n o x C o u n t y.

I further find, based on the rec ord in this cause, tha t [ the Def endant] serve d

a period of inc arc eration resulting f rom that conviction and w as re lease d in 2000–I don’t reme mber the e x act date–in 2000, th at h e wa s relea sed fr om the Tenne ssee De pa rt me nt o f C or

re c tio ns , h is s e nte nc e ha vin g e xpir e d at tha t time

. . . . Un de r this
statut e , th a t se pa

rat e pe ri odof

inc arc e ratio n r e fe rr e d to in ( e )( 2) , in c lud e s in my jud g me nt, a

pe ri od of inc arc e ratio n in the Te nn e sse e De pa rt me nt o f C or

re c tio ns . So I find bey ond a reasonable doubt in this case that [t he Defenda nt] has suffere d two prior convic tions for rape in 1987 in Divisi on I I , Criminal Court, that h e s erved a period of incarc eration in the Tennessee Department of Corre ctions and wa s relea sed i[ n] 2000; that he was char g ed with the agg ravated ra pe of the victim in thi s matter and convic ted of that off

ense in this Court on . . . Ma rc h 1 2 t h o f 2002. Ther efor e, under the statute, as it exis ts today , I find that he is a repeat violent offe nder a nd per
t h e i n s tru ct i o n s

– t h e m an d at o ryi n s tru ct i o n s o f t h at s t at u e– h av i n g m ad e t h at fi n d i n g, the Court is require d to sentence y ou to life imprisonment without the pos sibili ty of parole . That will be t h e judgme nt of the Court. That does not pre clude y our opportunity

to r aise any of these other issues, including attacking this statute at future hearings. . . .

B. Evid ence P rese nted at Mot ion f or Ne w T rial

On Dec ember 12, 2002, and Marc h 10, 2003, the trial court held hearings on the Def endant’ s motion for new tria l at which the De fenda nt was repre sented by new counsel. I n his moti on for ne w trial, the Defenda nt claimed, inter alia, that he rece ived i neff ective assistance of counsel, a nd at the hearing on the motion he called his trial counse l, Russ Greene (“C o u n s el ”), to testify . Counsel testified t hat he has been a li cense d attorney for f ive and a half y ear s and that he primarily prac tices criminal defe nse law. Counsel stated that the f irst time that he met the Def endant wa s in jail after

o n e o f C o u n s el ’s cl i en t s re fe rr ed t h e De fe n d an tt o h i m

. C o u n s el t es t i fi ed t h at , at t h at fi rs tm ee t i n g, he a ndthe De fe nd a nt d iscuss ed th e De fe nd a nt’ s c a se , th a t th e De fe nd a nt w a s c ha rg e d w ith ag g ravated ra

pe and that, if convicted, he would probably be sentenc ed under the “habitual of fende rs act.” Counsel stated that he char g ed the Def endant $3,000 to r epre sent him. Counsel testi fied that the Def endant told him that he did not digitally penetr ate the victim, but that he “rubbe d outside her pants in th e v a g in a ar e a

. ” Co u n s e l s tate d th a t th e D e f e n d a n t w r o te h im le tt e r s c laim in g that the vic tim ha d tw o b oy frie nd s, on e na me d Ca se y Ma xey a ndon e na me d Jon a than. He te sti fi e d th a t,

acc ording to the Defenda nt, Medlin said that the victim’s fathe r had molested the victim. Counsel

a lso te sti fi e d th a t th e De fe nd a nt t oldhim that th e vic tim

ha d c omp la ine d o f r ape prior to this incident, but that the victim’s fathe r did not believe her. Counsel admitted that he did not “follow up” on any

of this information.

Counsel testified that the Defenda nt told him that the vi ctim “ac ted sexywith him” and had-8-

dance d for him, asking him, “Have I shown y ou my

underw ear

lately ? ” Counsel also stated that the Def endant told him that the victim had just broken up wi t h o n e o f h er boy friends a nd that, on the night of the ra

pe, she w as on the phone with one of these boy friends c ry ing. Counsel testified that he tr ie d to fin d J on a than an d Cas e y , but he wa s una ble to loc a te the m. Cou ns e l te sti fi e d th a t he did

no t in te rv ie w the vic tim , th e vic tim ’s ste pmo the r, Me dli n, P art on , Of fi c e r L a ws on or

Nu rs e McDona ld before trial. Counsel stated that Officer L awson’s note s from the victim’s initial statement indicate d that the victim said that the Def endant “ felt her

up” in quotes, but did not indicate that the D efe ndant pene trated he r.

Counsel testified that he ha d his sist er, a nurse pr actitioner, r eview Mc Donald’s qualifications, but t hat he did not pay her f or this service . Counsel stat ed that, in hindsight, he should have a sked M cD onald about why she did not photogr aph the injury and should have hired an expert to criticize McDona ld’s investigation. The Def endant of fer ed af fidavi t testimonyof Edwar d L . Cornett, an Emer g ency Depa rtment Phy sician, in which Dr . Cor n et t stated that he

rev ie we d th e Rape Cr isi s Ce nte r r e c or ds a ndthat it app e are d th a t th e Sta te of fe re d n o f

or e ns ic evidenc e to establish the etiolog y of the victim’s phy sical injuri es . The doc tor stated that, base d upon this, if he wer e called to ha ve testified he would ha ve testified that “ within a rea sonable de g ree of medica l certainty

. . . no fore nsic evidenc e wa s collecte d or pre sented to establish a c onnection phy sically

betwee n the individuals in thi s matter.”

Cou ns e l st ate d th a t, e ve n th ou g h the vic tim wo ke up in the mid dle of the nig ht with a “ fr e sh complaint” of r ape, his theory of the c ase w as th at s h e wa s l y i ng and that she w as not aslee p that night. Counsel explained that his theory was that the victim planned this char ade because one of her boy friends actually cre ated the injury
, and she did not want her pare nts to know. Counsel testified that th e vic tim ’s te sti mon y wa s “ un be lie va

ble ” be c a us e he r s ho rt s w e re tig ht o n h e r andsh e wo uld have be en aw akene d had the Defe ndant put his hands up her shorts. Counsel admitt ed that, bef ore the tr ia l, h e ne ve r s a w the sh orts that th e vic tim wa s w e ari ng on the nig ht o f theinc ide nt.

Counsel stated that he did not reme mber the D efe ndant telling him that the shorts pre sented at trial we re not the shorts that the victim was wea ring on the nig ht of the ra pe. Counsel admitted that, in his opening state ment, he s ai d
, “Y o u are g oing to he ar a bout discrepa ncies” and “y ou’re g oing to he ar ab o u t b o y friends,” but that he pre sented no proof of any boy friend or

discrepa ncy during the trial. Counsel testified that the Def endant did not take the stand bec ause he would have had to admit that he touche d the victim on the o u t s i d e o f h er clothes, bec ause his two prior r ape convictions would come in a nd beca use he w as being inves t i g ated f or “looking into women’s windows.”

Counsel te stified that he never attempted to c halleng e the constitutionalit y of t h e r epeat vio le nt o ff

e nd e rs statut e

. Cou ns e l als o ad mit te d tha t he n e ve r i nv e sti g a te d to se e if the tw o g uil ty pleas, pre viouslyg iven by the Def endant f or two ra pes, we re pr operly

enter ed.

On cr oss-examination, Couns el testified that, in the D e f e n d an t’ s s ta

te me n t t o p o li c e , he stated that he wa s sleeping on the floor in the l iving room on the night in question and that the vic tim got-9-

up and starte d y elling f

or no appa

rent re ason. He also admitted that Off icer L awson never

testified that the victim state d that the Def endant “fe lt he r up” and that such testimony would not have be en advanta g eous to the De fenda nt. Counsel testif i ed t h at h i s trial tactic w as to impeac h the victim’s

cre dibilit y

not to assert that the De fenda nt was gu i l t y o f s ex ual battery rathe r than ra

pe. Counsel
tes tified that he c ross-examined the victim reg arding the shorts that she wa s wea ring that evening and that he tried to have he r try them on to show how tight they wer e, but the victim testified that she had g ained weig ht sinc e the incident and the court sustained the State’s objecti o n

. C o u n sel
te sti fi e d th a t th e tria l c ou rt ru le d th a t, h a d th e De fe nd a nt te sti fi e d, the Sta te c ou ld n ot i mpe a c h h im with his prior rape convictions, but c ould impeach him with his prior burg lary conviction. Counsel stated that he would have cross-e x amined the victim re g arding her a lleg ed cla im that her father ha d rape d her a nd that another man had r aped he r, but that the trial court limited his questioning of he r sexual hist ory

to the previous 72-hour

period.

On Marc h 10, 2003, the trial court conduct ed another hearing to he ar a rg uments and testimonyreg arding whether there was a timely

rec usal by

the District Attorney ’s Off ice. Ge nera l N i c h o l s , t h e D i s tr i c tA t t o r n e y G e n e r a l f o r K n o x C o u n t y, t e s t i f

i e d t h a ti n M a y o f

2 0 0 1 h e h a d t h i r t yone assistant di s trict attorney s g ener al. Gene ral Nic hols said that, before he bec ame the D istrict Attorney , he wa s a criminal court judge in Knox County from J une of 1988 until August of 1992, and that, bef

ore 1988, he was in private prac tice for about ten y ear s. The g ener al tes t i fi ed t hat he

re me mbe re d v e ry

we ll h is r e pr e se ntatio n of th e De fe nd a nt andthat, d uring the c ou rs e of thi s repr esentation, he got t o know t he Defenda nt’s fathe r well. Gene ral Nic hols testified that, after the Def endant wa s rele ased from prison on the convictions for which the g ener al re prese nted him, the Def endant’ s father

called the g ener al and told him t h at t h e Defendant wa s having trouble finding work. The g ener al s tated that he sugg ested to the Defenda nt’s fathe r a couple of pe ople that he kne w would hire people rele ased from prison, and he g ave the Def endant’ s fathe r th ei r n am es and numbers. Ge nera l Nichols stated that, at the time that he had this c onversation with the Defe ndant’s fathe r, Ge nera l Nichols was the District Attorne y Gene ral for

Knox C ounty

. The g ener al testified that, som etime around the Defenda nt’s arr est, he lea rned of the cha rg es ag ainst the Def

endant f rom the new spaper . The g ener al testified tha t W i lliam H. Crabtree had sig ne d th e g e ne ra l’ s na me to the De fe nd a nt’ s in dic tme nt. He sa id that Cr abtr e e a ndJohn Gi ll, bo th of whom work in the g ener al’s off ice, ha d the authority to sign indictments in the g ener al’s abse nce. Ge ne ra l N ic ho ls t e sti fi e d that, wh e n the ind ic tme nt wa s sig ne d, he wa s abs e nt fr om w or k r e g ula rl y beca use he w as ca mpaig ning f or g overnor

. The g ener al testified that he had no rec ollection of the i n d i ct m en to r o f t h e p re l i m i n ar y h ea ri n g.

Ge ne ra l N ic ho ls t e sti fi e d th a t, n orma lly , if the re is a c on fl ic t or a

po te nti a l c on fl ic t w ith his office , someone in his office sends a f orm to the Attorne y Ge n era l’s Confere nce and that, then, WallyKirby , the Executive Direc tor of the Attorne y Gene rals, finds somebody to take the c ase. The g ener al said that t he form was appare ntly sent in this case, and G ener al Ramsy ’s offic e wa s chosen to repre sent the State pro tem. He explained that he had no “ specific rec ollection” about the r ecusa l proce ss in this case

.-10-

On cr oss-examination, the ge nera l testified that he wa s prac ticing with Ra lph H arw ell at the time that he re prese nted the De fenda nt in 1987. Gener al Nichols testified that, whe n he re prese nted the Def endant, the D efe ndant pled g uiltyto two differ ent ra p es

. He s ai d that he believe d that he talked extensively with the Def endant during his r epre sentation of him a nd that he g ot to know the De fe nd a nt’ s f

a the r, wi th w ho m he re ma ins frie nd s. Ge ne ra l N ic ho ls t e sti fi e d th a t th e e vid e nc e in the ca ses for w hich he repr esente d the Def endant was “ very

power ful,” a nd there wer e sig nificant ps y c ho log ic a l in

jurie s to on e of the vic tim s, so he e nc ou ra g e d the De fe nd a nt to ple a d g uil ty . H e sa id that the Def

endant a lso had a sig nificant substanc e abuse problem involving c ocaine

.

Gene ral Nic hols te stified that there was no formal sy stem in place f or his assistants to know whether he had pr eviously

repr es en t ed a p er s on who was g oing to be indicted by the State. The g ener al stated that Kathy

Sellars, who is a secreta

ry for the violent c rimes unit in his office, re quested the Def endant’ s old archive d files from 1987, and thos e files we re de livered be fore the pre liminary he ari ng . H e sa id that, on on e of the fa xes re qu e sti ng thi s in fo rm a tio n, the re wa s a y e llo w s tic ky

no te that said, “Told Kathy to r est unless pro tem appointed notified by Alice.” Gene ral Nic hols testified that “A lic e ” wa s Alic e An n Fe rg us on , who wa s Wally Ki rb y ’s se c re tary . H e sa id that F e rg us on is the one to whom pro te m reque sts go init ially

. The g ener al stated that the note appea red to be written by Ashley J ulian, his secre tary , and that it appea red that “somebody [i n my office ] had . . . found out that I had re prese nted [the Defe ndant] and considere d it to be a potential conf lict of interest, a nd the ball had g otten [rolli ng ] on having a pro te m appointed sometime betwe en his arr est and this date,” wh ic h w a s p ri or

to the pr e lim ina

ry he ari ng . T he g e ne ra l st a te d th a t he didno t th in k that his

re pr e se ntatio n o f the De fe nd a nt i n 1 98 7 p re se nte d a c on fl ic t w ith the pr os e c uti on of thi s c a se be c a us e “ther e’s nothing that I know that added to the prosec ution of this case or de trac ted from it,” but the g ener al admitted that it could have the appea ranc e of impropriety

.

Robert E. Jol l ey t es tified that he is pre sently in private pra ctice, but, at the time of the Def endan t ’s i ndictment, he wa s an assistant district attorney with Gener al Nichols’ of fice . J olley testified that he r epre sented the State at the preliminary hearing in the Def

endant’ s case . He sa id that he wa s awa

re that, prior to the cur

rent rape i n d i ct m en t and subseque nt to the Defe ndant’s two previous ra

pe convic tions, there we re w arr ants for the Def endant tha t i n v o lved a violation of probation and some misdemeanors. J olley said that he did not participate in the se case s beca use he

was re sponsible primaril y fo r homicide a nd violent offense s. He said that, while he does not specific ally

reme mber pre paring for the D efe ndant’s pre liminary hearing, he would have looked at the De fendant’s prior re cord, ta lked to the witnesses be fore prese nting them a nd talked to other
at t o rn ey s i n t h e of

fi ce re gar d i n g t h e cas e. J o l l ey t es t i fi ed t h at , at t h e ti m e of t h e p re l i m i n ar y h ea ri n g, h e w a s u n a w ar e t h a tG e n e r a l N i c h o l s h a d p r e v i o u s l y r e p r e s e n t e d t h e D e f

e n d a n t

. J o l l e y

t e s t i f i e d
, “ It

wa s no t the pr oc e du re in the of fi c e that Ge ne ra l Ni c ho ls wo uld be c on ta c te d a bo ut any of the se c a se s, unless his name had c ome up.” F urther, he said that his handwriting is on the orig inal indictment showing the g rand jury

number on the indictment, a nd it was the pra ctice of the offic e to write tha t number on the indictment be fore it went into the gr and jury room and be fore the prese ntation of the witnesses t o the gra nd jury

. J olley stated t hat he had no persona l rec ollection of spea king w ith the g ener al about this case prior to the indi ctment or afte r t he indi ctment. On cross-examination, J olley testified that he r equeste d that the Def endant’ s bond be ra ised afte r the pre liminary hearing.-11-

Willi a m H . Cr abtr e e te sti fi e d th a t he is a n a ssist ant di stric t a tto rn e y in G e ne ra l N ic ho ls’ of fi c e , an d ha s bee n an AD A sin c e 19 76

. Cr abtr e e te sti fi e d th a t he sig ne d G e ne ra l N ic ho ls’ na me to the Def

endant’ s indictment and that he w as authorized to do so when G ener al Nichols wa s

un a va ila ble . H e sa id that th is i nf

orma tio n is his on ly

re c oll e c tio n o f the De fe nd a nt’ s ca se . On c ro ssexami n at ion, Crabtree testified that he did not know how the D istrict Attorney Gene ral Pro Te m

came to be appointed in this case

.

J ames N. Ramse y , the District Att orney Gene ral in the Seve nth J udicial District, Ander son County , testified that he f irst got notice of the re quest fo r h i s ap p o i n tment as an a ttorney pro tem shortly befor e J une 21, 2001. He testified that, while he did not spec ifically rec all, he thoug ht that he g ot a c a ll o r a fax fro m A lic e F e rg us on re qu e sti ng that he take “ a pr o te m st a tus wi th r e g ardto Randy Nichols.” Ge nera l Ramsey stated that t here was a faxed document dated J une 21, 2001, at 9:4 7 a .m. that in dic a te s th a t he ha d a lr e a dy been c on ta c te d a nda c c e pte d th e pr o te m a ssi g nme nt. The ge nera l testified t hat hi s first and only persona l appea

ranc e in this case w as on Aug ust 9, 2001,

a ndthat, the re a ft e r, he a ssi g ne d the c a se to Jan Hi c ks
, wh o is the c hie f de pu ty dis tr ic t a tto rn e y in h is of fi c e . G e ne ra l Ra mse y state d that he ne ve r ha d a ny c on ve rs a tio ns wi th G e ne ra l N ic ho ls a bo ut this

case befor e the tria l.

Ashley J ulian testified that s h e i s Ge nera l Nichols’ sec reta ry and that she r ecog nized her handwriting on the P ost-I t note on the fax that told Kathy Sellars t o have the Def endant’ s case rese t

un le ss a pr o te m w a s a

pp oin te d. Julia n state d that thePos t- I t no te c ou ld h a ve be e n in re sp on se to th e f a x o r th a t i t c o u ldh a v e b e e n p la c e d o n th e f a x mo n th s a f

te r th e f a x w a s r e c e iv e d

. Julian
te sti fi e d th a t sh e ha d n o r e c oll e c tio n of thi s ca se , b ut that, “ Ty pic a lly wh a t I do is I ty pe up a re qu e st, and then I send a f ax, and I may follow up with a t elephone call say ing that I have se nt them a fa x reque sting a

pro tem . . . .” Julian testified that the date on t he fa x was May 9, 2001, and that she sent a letter

reque sting a

pro tem be a

ppointed on J une 21, 2001

. J u l i an testified that she did not

reme mber who dire cted he r to reque st a pro tem.

I n a written order, the trial court de nied the De fenda n t ’s motion for new tria l, and the Def endant now a

ppeals.

II. Ana lys is

Th e De fe nd a nt n ow app e a ls, c on te nd ing that: (1 ) the e vid e nc e is ins uf fi c ie nt t o s up po rt

his conviction for ag g ravated rape ; ( 2) the trial c ourt err ed whe n it failed to dismiss t he indictment; (3) the trial court erre d when it cha rg ed the jury

on the eleme nts of ag g ravated ra pe and a g g ravated

se xua l batte ry

a ndon the c ulp able me nta l st a te ; ( 4) he wa s d e nie d e ff e c tiv e a ssi sta nc e of

c ou ns e l; (5 ) T e nn e sse e Cod e An no ta te d se c tio n 40 -3 5- 12 0, un de r w hic h th e De fe nd a nt w a s se nte nc e d a s a violent offende r, i s unconstitutional; and (6) the trial c ourt err ed whe n it found that the Def endant qualified a s a violent offe nder pur suant to Tennesse e Code Annota ted sec tion 40-35-120.-12- A. Suf fi ciency of the Evidence

Th e De fe nd a nt co nte nd s tha t the e vid e nc e pr e se nte d at hi s tria l is ins uf fi c ie nt t o s up po rt

his conviction for a g g ravated ra pe. When an ac cused c halleng es the suff iciency of the e vidence , an

app e llate c ou rt ’s sta ndard of rev ie w i s w he the r, a ft e r c on sid e ri ng the e vid e nc e in the lig ht m os t favor able to the pr osecution, any rational trier

of fa ct could have found the e ssential elements of the

c ri me be y on d a re a so na

ble do ub t. Te nn . R. Ap p. P. 1 3( e ); Jac ks on v. Vi rg ini a , 443 U.S. 307, 324 (1979); State v. Smith, 24 S .W.3d 274, 278 (Tenn. 2000). This rule a pplies to findings of g uilt based upon direc t evidence , circ umstantial evidence , or a c ombination of both direct and c ircumstantial

e vid e nc e . St a te v. Pe nd e rg ra ss , 13 S.W .3d 389, 392-93 (Te nn. Crim. App. 1999).

I n d e te rm ini ng the su ff

ic ie nc y of the e vid e nc e , th is Cou rt sh ou ld n ot r e -w e ig h o r re -e va luate t h e e v i d en ce

. S t at e v

. Bu ggs , 995 S.W .2d 102, 105 (Tenn. 1999) ; State v. Matthews

, 805 S.W .2d 776, 779 (Tenn. Crim. App. 1990) . Nor may this Court substitut e its infe renc es for those dr awn by
t h e tri er o f fa ct fr o mt h e e v i d en ce

. Bu ggs , 99 5 S. W.2 d at 10 5; Liaka s v . St a te
, 286 S.W .2d 856, 859 (Tenn. 1956) . Questions conce rning the cr edibilityof the witnesses, the weig ht and value of the evidenc e, as well as all fac tual issues raised by the evidence are r esolved by the trier of

fac t. L iakas

, 286 S.W .2d at 859. This Court must af ford the State of Tenne ssee the strong est leg itimate view of the evidenc e conta ined in the re cord, a s well as all re asonable infere nces w hich may be dra wn from the evidenc e. State v. Evans

, 83 8 S. W.2 d 1 85 , 1 91 (T e nn

. 19 92 ). B e c a us e a ve rd ic t of g uil t a g a ins t a def endant r emoves the presumption of innocenc e and raises a presumption of g uilt, the convicted

c ri min a l de fe nd a nt b e ars the bu rd e n of sho wi ng that the e vid e nc e wa s le g a lly ins uf fi c ie nt t o s us ta in a g uiltyverdic t. I d.

The De fenda nt wa s co n victed of a g g ravated ra pe. Ag g ravated ra

pe is “unlaw ful sexual pe ne tr a tio n o f a

vic tim by the de fe nd a nt .

. . a c c omp a nie d b y a ny of the fo llo wi ng c ir c ums ta nc e s: . . . [t ]he defendant cause s bodilyinjury to the victim . . . .” T enn. C ode Ann. § 39- 13-502 (1997)

. “B odily injury includes a c ut, abra sion, bruise, burn or disfig ureme nt; p h y s ical pain or temporary ill n e s s o r imp a irme n t o f th e f u n c ti o n o f a b o d il y me mb e r , o r g a n , o r me n ta l f a c u lt y

. ” T e nn. Code Ann. § 39-11-106( a)( 2) (1997) . Sex ual P enetr ation means “sexual intercour se, cunnili ng us, fellatio, anal inter course , or any

other intru s i o n , howeve r slight, of any part of a person’ s body

or of a ny

o b j e c ti n t o t h e g e n i t a l o r

a n a l o p e n i n g s o f t h e v i c t i m ’ s , t h e d e f e n d a n t ’ s , o r

a n y o t h e r p e r s o n ’ s b o d y, but emission of semen is not require d.” Te nn. Code Ann. § 39-13- 501(7) ( 1997).

The victim testified that, whe n she woke up during the ni g ht of t he ra pe, the De fenda nt had his hands inside her shorts a nd his finge rs inside her and that she fe l t a “pinch” or “ scra pe”

app ro xima te ly

on e inc h ins ide he r va g ina

. She te sti fi e d that the fe e lin g wa s p a inf ul. Th e vic tim

a lso testified that she ha d n o t h ad s exual contact during the threeday s prior to the ra pe. Nur se Penny McDona ld, who examined the victim subsequent to the rape, testified that he r examination revea led

a la c e ratio n o n th e vic tim ’s la bia min or a that w a s two c e nti me te rs by tw o mi lli me te rs a nda

br uis e

nex t t o the lace ration, both of which w ere in the ear ly stag es of he aling , meaning that they wer e

su ff e re d w ith in the la st 7 2 h ou rs . T he nu rs e a lso te sti fi ed that the vic tim

c omp la ine d o f s ome discomfort in her private parts and, when the nurse pe rformed t he ex amination, “[I ]t was ve ry painful-13-

for the vic tim.” Nurse Mc Donald testified that the vic tim’s injuries were co n s i s t ent wit h the pe ne tr a tio n o f the vic tim ’s va g ina by a fi ng e r. We c on c lud e that th e e vid e nc e wa s su ff ic ie nt t o support the Def

endant’ s conviction for a g g ravated ra pe.

B. I ndic tm e nt

Th e De fe nd a nt c on te nd s that the ind ic tme nt in h is c a se sh ou ld h a ve be e n d ism iss e d b e c a us e Gene ral Nic hols had a c onflict of intere st due to his previous re prese ntation of the De fenda nt in two rape convictions in 1987. The Def endant asserts tha t the Assistant D istrict Attorney , employ ed by Gene ral Nic hols, had broad disc retion in cha rg ing the Def

endant a nd, in fac t, orig inally char g ed the Def endant with rape and then indicted the Def endant f or ag g ravated ra

pe. This broa d discretion, the De fe nd a nt c on te nd s, c omb ine d w ith Ge ne ra l N ic ho ls’ pr e vio us re pr e se ntatio n o f the De fe nd a nt,

cre ated a n actua l conflict and, the ref ore, the indictment should be dis missed. The State c ontends that there was no c onflict bec ause G ener al Nichols did not knowing ly repr esent the S t at e ag ainst the De fe nd a nt andbe c a us e , at th e tim e of the De fe nd a nt’ s in dic tme nt, Ge ne ra l N ic ho ls h a d “ e ff e c tiv e ly
tur n e d o v e r [t h e ] d a y

- to

- d a y o p e r a ti o n o f th e o f f ic e to h is s u b o r d in a te s w h il e

. . . ru n n ing for g overnor .” F urther, the State contends that the g ener al’s repr esenta tion of the Def endant in 1987 had nothing to do with the victim or circ umstances of the instant c ase and, there fore
, the g ener al did not divulge any

privileg ed information. W hen the tria l court over ruled this issue in its ord er on the Def endant’ s motion for new trial, it stated:

Th e re is n o que sti on that it wo uld no t hav e be e n a pp ro pria te fo r G e ne ra l N ic ho ls t o

a c tiv e ly pa rt ic ipate in the pr os e c ut io n of [ the De fe nd a nt], ha vin g pe rs on a lly repr esente d [t he De fenda nt] in the 1980s. Furthe r, even if Gene ral Nichols had not person al ly

participated in the prosec ution of [t he] [ D]efenda nt, the appea ranc e

cre ated by

allowing members of

his st af f t o p ro s ecute the ca se once a conf lict had been ide ntified, would, in this court’s opinion, be inappropriate.

The facts as established in t his case, how ever , establish that all actions take n by the District Attorney ’s Offic e in Knox Countyin handling the preliminary hearing and g rand jury proce eding s wer e done at a time w hen Gene ral Nichols was una war e that [th e De fe nd a nt] h a d b e e n char g e d w ith a nythi ng . B othB ob Jolle y a ndB ill Cr abtr e e te sti fi e d th a t th e y ha d n o c on ve rs a tio n o r i np ut f ro m G e ne ral Ni c ho ls

re g ard ing the c a se

. On c e Ge ne ra l Nic ho ls r e a lize d th a t th e c a se e xiste d, app ro pria te steps wer e take n to remove his office from further involvement a nd [t o] t ransf er the

case to G ener al Ramsey ’s Offic e. [I ] believe
, under the fac ts of this case, that Ge nera l Nichols and his s taff acted properly

. Once they rea liz ed a pote ntial conflict existed, the case was transfe rre d from their office for prosecution by others. [The] Defendant

wa s n ot p re

judi ced in any way

by the lim ite d in vo lve me nt o f the Kn ox Cou nty District Attorney Gene ral’s Office
, and the court there fore conclude s that this is sue is w ith ou t me ri t.

Th is c a se app are ntl y

pr e se nts on e of

fi rs t i mp res sion: A d ist

ri c t a tto rn e y

abs e nt f ro m hi s-14-

o ff i ce d u e t o re s p o n s i b i l i t i es o f agu b er n at o ri al ca m p ai gn al l o ws h i s as s i s t an t d i s tri ct at t o rn eyt o s i gn indictments on his beha lf. The assistant district attorney signs one such indictment f or a def endant whom the district attorney previously

repr esente d fourtee n y ear s befor e the indicted of fense . The district attorney

is then rec used and a pro tem district attorne y g ener al is appointed. We now de te rm ine if

the dis tr ic t a tto rn e y ’s sig natur e , s ig ne d b y his a ssi sta nt, inv a lid a te s th e ind ic tme nt, requiring that it be dismiss ed.

Be cause there is evidence that the Def endant did not raise the a lleg ed def ect in the indictment prior to trial throug h a motion to dism iss the indictm en t , we could conclude that the De fenda nt waived h i s rig ht to complain about the def ect. See Tenn. R. Crim. P. 12(b)(1) & (f) (stating that defe nses and objec tions based on def ects in the indictment must be raised prior to trial or t hey are

c on sid e re d w a ive d) ; se e a lso Pop e v. Sta te , 2 85 S.W. 77 5, 77 6 ( Te nn 19 24 ) ( ma int a ini ng that a defe ct in an indictment ca n be cur ed by the jury ’s verdic t a fter the defe ndant pleads to the indictment and g oes to trial); Jackson v. State, 475 S.W .2d 563, 565 (Tenn. Crim. App. 1 9 7 1) (f inding that objections to the form of the indictment are g ener ally waived by

the def endant g oing to tria l without calling the def

ect to the tria l court’s attention); but see McL ean v. State, 527 S.W.2d 76, 82 (Tenn. 1975) (f inding that a

materia l varianc e in the indictment, betwe en the of fense cha rged and the evidenc e off

ere d, is not normally

waived) . Howeve r, bec ause the Def endant seeming ly

attacks the substance of

the i ndictment, by alleg ing that he was denied a fair trial and due proce ss of law, a nd not its form, we will addre ss this i ssue on its merits.

Th e q u e s ti o n o f th e v a li d it y o f a n in d ic tm e n t is o n e o f la w a n d
, a s s u c h
, o u r r e v ie w is de novo. State v. Hill, 954 S.W .2d 725, 727 (Tenn. 1997) . Under both the United States and the Tenne ssee Constitutions , a cha rg ing instrument, such as an indictment, must inform the a ccuse d of

“ the natur e a nd c a us e of

the a c c us a tio n. ” Se e U. S. Co ns t. ame nd . V I ; T e nn . Co ns t. a rt . I , § 9; S ta te v. Hammonds, 30 S.W .3d 294, 297 (Tenn. 2000) . I n addition, Tennesse e Code Annota ted sec tion 40-13-103 r equire s, “No district attorney g ener al shall pref er a bill of indictment to the g rand jury without a prosecu t o r m ar k ed thereon, unless otherw ise expressly provided by

law.” Further, the indic tm e n t mu s t c o n tain th e s ig n a tu r e o f th e d is tric t a tt o r n e y g e n e r a l. Se e D a v id L o u is Ray bin, T enn esse e Pr

ac tic e Cri mi na l P ra c tic e an d P ro c e du re § 1 6. 14 (1 98 4) . T he Te nn e sse e Sup re me Court has stated:

[A] n indictment is sufficient to satisfy the constitutional g uara ntees of notice to the

acc used if t h e i ndictment contains alleg ations that: (1) ena ble the ac cused to know the a c c us a tio n to wh ic h a ns we r i s r e qu ir e d; ( 2) f urnis h th e tr ia l c ou rt

a n a de qu a te basis for entry of a proper judgme nt; and (3) protec t the accused from a subseque nt prosec ution for the same offe nse.

Hammonds, 30 S.W .3d at 299 (citing Hill, 954 S.W .2d at 727). In Hammonds, the Court announc ed its “relaxation of common law plea ding re q u irements and . . . r eluctanc e to elevate form ove r substance w hen eva luating the sufficie ncy of i ndictments” and stated, “[I ]ndi ctments which a chieve the ov e rridi ng pu rp os e of no tic e to the a c c us e d wi ll be c on sid e re d su ff ic ie nt to sa tis fy

bo th constitutional and statutory require ments.” I d.-15-

The De fenda nt in this case asserts that the indictment a g ainst him should be dism issed based upon prosec utorial misconduct. The Te nnessee Supreme Court has state d:

[D] ismiss al of a n otherwise va lid indictment returned by a gra nd jury is a littl e-use d

reme dy for pr osecutoria l misconduct. United States v. Wil liams, 504 U.S. 36, 54, 11 2 S. Ct

. 1 7 3 5
, 1 7 4 6
, 1 1 8 L

. E d

. 2 d 3 5 2 ( 1 9 9 2 )

. I t m a y b e ap p r o p r iate , h o w e v er, wher e prose cutorial misconduct de ni es a defe ndant the constitutional rig ht to due pr oc e ss. Se e Un ite d St a te s v . Ca rr a sc o, 78 6 F .2 d 1 46 2, 14 55 (9 th C ir

. 19 86 ); Pe op le v. Torre s, 2 4 5 I l l

. App. 3d 297, 184 I ll. Dec. 311, 613 N.E .2d 338, 340 (1993). Moreove r, dismissal of an indictment may be appr op ri at e under a c ourt’s g ener al supervisory

authority wher e prose cutorial mi sconduct, while short of constitutional

e rr o r , h a s p r e

j u d i c e d a d e f e n d a n to r a f f e c t e d t h e c h ar g i n g d e c i s i o n b y t h e g r a n d j u r y. Ba nk of Nova Scotia v. United States, 480 U.S. 250, 108 S. Ct . 2369, 101 L . Ed. 2d 228 (1988).

State v. Culbreath, 30 S.W.3d 309, 317 (Tenn. 2000) . To be e ntitled to the relief that the D efe ndant seeks, he first must prove that the prosec ution eng ag ed in misconduct, and, se cond, he must show that such conduc t infring ed upon his constitutional due proce ss righ t s , p re j u diced him or a ffe cted the cha rg ing de cision by

the g rand jury . I d. Even a ssuming, ar g uendo, that the De fenda nt established that the prosec ution c ommitt ed misconduct, he has failed to e stablish that such alleg ed misconduct in fr i n ged u p o n h i s co n s t i t u t i o n al ri gh t s , p re j u d i ce d h i mo r a ff

ec t ed t h e charg ing de cision. There fore , he cannot be succ essful on the a ppeal of this iss ue.

After revie wing the re cord, we hold that the Def endant ha s not shown that any conduct, or alleg ed misconduct, by

the prosec ution inf

ri n ged upon his constitutional due proce ss rig hts. A citizen has the rig ht to due proce ss of law unde r the F ourtee nth Am en d m ent t o the United States Co n s ti tu ti o n a n d u n d e r

th e “ la w o f

th e lan d ” p r o v is io n o f

ar ti c le I
, s e c ti o n 8 o f

th e T ennesse e Constit ution. The T en n es s ee S u preme Court has rec og nized that “‘due pr ocess . . . c alls for such protec tions as the particula r si tuation demands.’” I d. at 317 (quoting Wil son v. Wi lson, 984 S.W .2d 89 8, 90 2 ( Te nn . 1 99 8) ; Ph ill ips v. Sta te B d. of Re g e nts , 8 63 S .W .2 d 45
, 50 (Te nn . 1 99 3) ). Th is Court should consider three fac tors when deciding whether there has bee n a due pr ocess violation:

(1 ) the private int e re st at st ake ; ( 2) the ri sk of e rr on eous de privatio n o f the int e re st thr ou g h th e pr oc e du re s us e d a nd the pr ob able va lue
, if a ny , o f a dd iti on a l or

su bs titute proce dural saf

eg uards; and f

inally (3) the g overnme nt’s interest, including t he function involved and the fiscal a nd administrative burde ns that th e ad d i tional or substitut e proc edura l require ment would entail.

Wil son, 984 S.W .2d at 902. Afte r considering the se fa ctors, we conclude that the Def endant’ s due proce ss rig hts were not violated. The li b er t y interest at stake is obviouslysignific ant as the De fe nd a nt w a s in dic te d f or a fe lon y of fe ns e ; ho we ve r, the ri sk

of e rr on e ou s d e privatio n o f this interest (the prejudice to the Def endant) is mini mal b ec ause Gener al Nichols, who the D efe ndant alleg es committed misconduct, was r eplac ed by a District Attorney

Gene ral Pro Te m prior to the-16-

Def endant’ s trial. The pa

rticipation of Ge nera l Nichols in t h ep r e

- trial proce ss was extremely limit ed and did not rende r t he proc eeding s fundamenta lly unfair. A s to the third consideration, we note that the De fe nd ant argues th at th e re sh ou ld b e a fo rm a l c on fl ic t sy ste m in pla c e in G e ne ra l N ic ho ls’ of fi c e so that a ny

de fe nd a nt w ho m th e g e ne ra l pr e viou sl y repr e se nte d w ou ld n ot b e su bs e qu e ntl y i n d i cted by

the g ener al’s off

ice. While such a sy stem might be a dvantag eous for the district attorney ’s offic e to avoid potential conf licts, it i s not a nec essity . Acc ording ly
, we conclude that the Def endant ha s not met h i s b u rd en of showing that the alleg ed misconduct by the prosec ution infring ed upon his constitutional rights.

Further, the Def

endant did not show how he wa s prejudice d by the ac tions of the prosec ution. Upon learning that his office w as prose cuting the Def endan t, a district attorney pro tem wa s appointed, and no one in G ener al Nichols’ office was further involved in the Def endant’ s case . The Def en d a n t r e c e iv e d a

f a ir tria l b y a n imp ar ti a l j u r y

. Pr o s e c u ti n g th e D e f e n d a n t w a s a n a s s istant district attorney

who had no knowle dg e g ained by Gene ral Nichols’ pre vious repre sentation of the Def endant. The ref

ore, w e conc lude that the De fenda nt has not shown prejudice

. Finally
, the Defenda nt did not prove that any alleg ed mi sconduct bythe prosec ution affe cted the cha rg ing de cision ag ainst him. Incl u d ed in Counsel’s trial file wa s an I nvestig ative Ac tion Re po rt by Of fi c e r P app a s th a t st a te d:

This investigator contac ted ADA Marsha Mitchell. She was advised by investigator about the ca se, t he evidence, the suspect’s c riminal history , and the a lleg ations that the suspect ha s been looking into fe m al e’ s windows. She was a dvised that the suspect could be a flight risk. She advised to g o ahea d and pick the suspe ct and char g e him with rape

.

L ater , presumably

afte r lea rning all of the fa cts of the c ase, i n cl u d i n g that the victim was injured during the ra

pe, the district attorne y ’s offic e dec ided to indict the Def endant fo r ag g ravated ra

pe. The g ener al testified that, at the time of the De fenda nt’s indictment, he was una war e that his offic e

wa s p ro se c uti ng the De fe nd a nt. Th e re fo re , w e ho ld that the fa c t th a t th e De fe nd a nt w a s u lti ma te ly indicted for a g g ravated ra pe, af ter being char g ed with rape , does not prove that the g ener al’s prior repr esentation of the Def endant in any

way aff ecte d the ch ar gi n g decision by the g rand jury . As further support for this holding, w e note that the jury found the De fenda nt guil t y of all of the elements of a g g ravated ra pe bey ond a r ea s o n ab l e d oubt. Such finding by the jury neg ates a ny arg ument by

the Def endant that he was improperly char g ed with the crime for whic h he wa s

c on vic te d. Ac c or din g ly , w e c on c lud e that th is i ssu e is w ith ou t me ri t.

C. Jury Charge

The De fenda nt next contends that, when the trial court instructed the jury , it “added

a d d i t i o n a l e l e m e n t s t o t h e o f f e n s e s o f A g g r a v a t e d R ap e a n d A g g r a v a t e d S e x u a l B a t t e r y. ” H e s a ys that, to the char g e of a ggra vated r ape, the trial court a dded the e lement of “ knowledg e of the Def endant that the vic tim was mentally defe ctive, m e n ta

ll y in c a p a citated or

phy sically

helpless when-17-

that element is only

rele vant if the De fenda nt was aide d and abe tted by o t h er s

. ” Fu rther, the Def endant c ontends that the court made the same e rror when c harg ing the jury

on ag g ravated sexual battery . There fore , the Def endant c ontends, he wa s convicted of a crime that he wa s not ch ar g ed with. The De fenda nt also contends that the tria l court er red be cause the State cha rg ed that the Def endant a cted “ rec k l essly ” whe n committing this crime and the trial court c harg ed that the Def endant must have acte d either intentionally , knowing ly or r ec k l essl y . Finally , the Def endant

asserts that the trial court e rre d when it did not instruct the jury on voluntary

intox ication.

The State c oncede s that the trial court imprope rly instructed the jury , but states that any err or is harmless. The state asserts that, to find the Defenda nt g uilty of agg ravated rape, t he jurymust find
two elements bey ond a reasonable doubt: (1) that the Defenda nt penetr ated the victim; and (2) that the Def endant c aused bodily

injury to the victim. The trial court’s char g e to the jury require d that it find an additional el em en t b ey ond a re asonable doubt in order to find the D efe ndant g uiltyof ag g ravated ra

pe and, the ref

ore, w as harmless error . As to the mens re a instruction, the State notes that bo th an int e nti on a l or kno wi ng me ns re a inc lud e a re c kle ss m e nta l st a te a nd , a c c or din g ly , a sse rt s that this inst ructional e rror is also harmless. We ag ree with the State on both acc ounts.

1. Aggravat ed Rape and Aggravated Sexual Battery Instr uction

A trial court has the duty
, in c riminal case s, to f ully instruct the jury on the g ener al principles of law r eleva nt to the issues raised by the evidenc e. See State v. B urns, 6 S.W.3d 453, 463 (Tenn. 1999); State v. Har

bison, 704 S.W .2d 314, 319 (Tenn. 1986) ; State v. Elder, 982 S.W .2d 871, 876 (T e nn . Crim. Ap p. 19 98 ). I n o the r w or ds , th e c ou rt mus t in str

uc t the jury on tho se princ ipl e s c los e ly and openly

connec ted with the fa cts befor e the c o u rt, which a re ne cessa

ry for the jury ’s understanding of the c ase. Elder, 982 S.W .2d at 876. Even if a trial court err s when instructing the jury , such instructional error may be found ha

rmless. State v. Wil liams, 977 S.W .2d 101, 104 (Tenn. 1998). A c harg e should be c onsidered pr ejudicially err oneous i f i t fails to fairly submit t he leg al issues or if it misleads the jury as to the applica

ble law. Hodg es, 944 S.W.2d 346, 352 (Tenn. 1997) ;

see a lso St ate v. Ha ll, 958 S.W .2d 679, 696 (Tenn. 1997)

.

With re g a rdto a g g ra vate d r ape , th e tr ia l c ou rt c ha rg e d th e jury

a s f oll ow s:

For y ou to find the defe ndant g uiltyof this offense as cha rg ed in the first count, the State must have prove n bey ond a re asona b l e doubt the existence of the following

e sse nti a l e le me nts ; (1) that the de fenda nt had unlawf ul sex ual pene tr at i o n o f [t he victim]; and (2) that the def endant c aused bodily

injury to [ the victim] ; and (3)( a) tha t the defe ndant knew or had r eason to know that the alleg ed victim was phy sically helpless; or (3) (b) that forc e or c o er ci o n was used to a ccomplish the ac t; and (4) that the de fenda nt acted either intentionally , knowing ly , or re cklessly

.

O n a g g r a v a t e d s e x u a l b a t t e r y, t h e tr i a l c o u r ti n s tru c t e d t h e j u r y:-18-

F or y ou to f indthe de fe nd a nt g uil ty

of [ag g ra vated sex ual ba tte ry ], th e Sta te mus t have pr o v e n b e y o n d a

r e a s o n ab le d o u b t th e e xis te n c e o f th e f o ll o w in g e s s e n tial

e le me nts : (1) that t h e d efe ndant had unlaw ful sexual contact with [the victim] , in which the defe ndant intentionally touched the alleg ed victim’s intimate parts or the cl o t h i ng

co v ering the immediate ar ea of the alleg ed victim’s intimate parts; and ( 2) that the defe ndant caused bodily

injury to the alleg ed victim; and (3)(a) t hat the def endant knew or had re ason to know that [the victim] was phy sically helpless; or (3) (b) that forc e o r c o e r c io n w a s u s e d to a c c o mp li s h th e a c t; a n d ( 4 ) th a t th e d e f e n d a n t a cted

e i t h e r i n t e n t i o n a l l y, k n o w i n g l y o r r e c k l e s s l y.
Ag g ravate d r ape is d e fi ne d b y Te nn e sse e Cod e An no ta te d s e c tio n 3 9- 13 -5 02 a s:

[ U ] n l a w f u l s e x u a l p e n e tr a t i o n o f

a v i c t i mb y t h e d e f

e n d a n to r t h e d e f e n d a n tb y a vic tim a c c omp a nie d b y

a ny of the fo llo wi ng c ir c ums ta nc e s: (1 ) F or c e or c oe rc ion is used to ac complish the act a nd the def endant is ar

med with a we apon .

. . ; (2) The defe ndant causes bodily

injury ; (3) The defe ndant is aided and abetted by one (1) or

mo re oth er pe rso ns ; an d (A ) Forc e or c oerc io n i s u sed to accom pl is h t he act ; o r (B) The de fenda nt knows or has re ason to kn o w t h at the victim is mentally defe ctive,

me nta lly inc apa c itate d o r p hy sic a lly he lpl e ss.
Ag g ravate d s e xua l batte ry is d e fi ne d a s:

[U]nl a wf ul s e xua l c on ta c t with a

vic tim by the de fe nd a nt o r the de fe nd a nt b y a vic tim

a c c omp a nie d b y

a ny of the fo llo wi ng c ir c ums ta nc e s: (1 ) F or c e or c oe rc ion is us e d to

acc omplish t he ac t and the def endant is a

rmed with a wea

pon

. . . ; (2) The defe ndant

cause s bodilyinjury

to the victim; (3) The defe ndant is aided or a betted by one (1)

or m ore o th er pe rso ns ; an d (A ) Forc e or c oerc io n is us ed to accom pl is h t he act ; o r (B) The de fenda nt knows o r h as re ason to know that the victim is mentally defe ctive, mentally incapa citated or phy sically helpless; or (4) The victim is less than thirteen (13) y ear s of ag e.

T en n

. C o d e A n n

. § 3 9 -1 3 -5 0 4 (1 9 9 7 ). Af t erre v i ew i n g t h e i n s tru ct i o n s gi v en t o t h e j u ryb y t h e j u d ge in this case, we note that the trial court improperly instructed the jury

that it must find the additional

e le me nt “ that th e de fe nd a nt kne w o r h a d r e a so n to kn ow that th e a lle g e d v ic tim wa s p hy sic a lly helpless; or that for ce or

coer cion wa s u s ed to acc omplish t he ac t” in order to find the Def

endant g uiltyof ag g ravated ra

pe or a g g ravated sexual battery

. Acc ording ly
, we a g ree with the parties that the trial court erre d when it i nstructed the jury

. Howeve r, we find that this err or was harmless. The
tr i a l c o u r tf

u l l y i n s tru c t e d t h e j u r y o n t h e o f f e n s e s o f a g g r a v a t e d r ap e a n d a g g r a v a t e d s e x u a l b a t t e r y, but added a n element that wa s unnece ssary fo r co n v i ction based upon the indictment in this case

. The jury was informed of the la w and the de finitions pertinent to the Defenda nt’s case , and the jury char g e in fa ct fa vored the Def endant by requiring the State to prove a n additional element that wa s

unnece ssary . We fail to see how the verdic t wo u l d h ave be en any differ ent had the trial court-19-

omitted the additional require ment. See State v. Jones, 889 S.W .2d 225, 2 2 9 (T en n

. Crim. App. 1994) (holding that, when a trial court ma d e an o m i ssion in a jury instruction, “[t] he instruction g iven by the trial court favore d the defense. .

. . Thus, the omission did not aff ect the r esults of the trial.”). T here fore , we c onclude that the jury char g e on the a dditional element was harmless bey ond

a re asonable doubt.

2. Mens Re a Instruction

The De fenda nt c ontends that the trial court erre d beca use the State indicted the Def endant for acting “re cklessly ” when committing this ag g ravated ra pe, and the trial court instructe d the jury that it could find the Defenda nt g uilty of agg ravated rape if it found that the De fenda nt acted e ither intentionally , knowing ly

or re cklessly . Tenne ssee Code An n o tated sec tion 39-11-301(2) ( 1997), states, “When re cklessness suff ices to establish an e lement, that el em en t i s also established if a person a cts intentionally

or knowing ly .” Ac co rd i n gl y , i t matters not whether the jury found the Def endant g uiltybey ond a re asonable doubt of acting with an intentional, knowing or re ckless mens

rea b e c a u s e a ll s u f

f ic e to e s ta

b li s h th e r e c k le s s me n s r e a f o r w h ic h th e D e f

e n d a n t w a s indic ted. Th e re fo re , w e c on c lud e that th is i ssu e is w ith ou t me ri t.

3. Voluntary Intoxication In struct ion

The De fenda nt next contends that the tria l court erre d when it fa iled to instruct the jury on voluntary intox ication. The D efe ndant ar g ues that there was suff icient evidenc e of his intox ication
so as t o war

rant a n instruction. Voluntary intox ication is a def

ense to a criminal off

ense only if the intox ication neg ates the spe cific intent re quired by the crime. State v. Bur

kley
, 804 S.W .2d 458, 461 (Tenn. Crim. App. 1990) . “The two prer equisites for a v o luntary intox ication def

ense a re ( 1) the criminal off

ense ( or a lesser included offe nse) for which the defendant is char g ed requires proof of a spec ific intent; and (2) the evidenc e of the def endant’ s intox ication war rants a jury

instruction.” I d. Proof of spec ific intent is not required to e stablish the offenseof ag g ravat ed ra p e. S t at e v. L ineberry , No . 0 1C 01 -94 12 CC -00 43 9, 19 95 W L 44 16 08 , at *4 (Ten n. Cr im . Ap p. , at Nas hv il le , July 26, 1995), no perm. app. filed (citing Har rell v. State, 593 S.W .2d 664, 670-71 (Te nn. Crim. App. 19 79 ); Te nn . Co de An n. § 3 9- 13 -5 02 (1 99 1 & Sup p. 19 94 )) . T he re fo re , w e fi ndthat th is is su e is wi tho ut m e ri t.

D. Eff ective Assistance of Counsel

The De fenda nt next assert s t h at h e was de nied ef fec tive assistance of counse l prior to and during his trial. The Tenne ssee Supre me Court has held that the issue of ineffe ctive assistanc e of counsel is a mixed question of law and f act a nd, acc ording ly , our re view of t h i s i s sue is de novo. State v. Burns, 6 S.W .3d 453, 461 (Tenn. 1999). Both the Six th A mendment to the United States Con sti tut ion a nd art ic le I , sec tio n 9 of the Te nn e sse e Con sti tut ion g ua rante e a de fe nd a nt i n a

state criminal prose cution the assistance of counse l. State v. Whi te, 114 S.W .3d 469, 475 (Tenn. 2003) (citing Gideon v. Wainwrig ht, 372 U.S. 335, 342 (1963); State v. Northing ton, 667 S.W.2d 57, 60 (Tenn.1984) ); Ba x ter v

. R o s e, 523 S .W.2d 930, 936 (Tenn. 1975). This rig ht to repre sentation-20-

includes the rig ht to “rea sonably eff ective” assistance . Burns, 6 S.W .3d at 461.

I n revie wing a cla im of ineffe ctive assistanc e of c ounsel, this Court must determine w hether the advice g iven or services re ndere d by the attorne y

are within the rang e of competenc e dema nded of attorne y s in crimi n al ca s es

. Ba x ter, 523 S.W.2d at 936. To preva il on a claim of inef fec tive assistance of counsel, a defenda nt must show that “counse l’s repr esenta tion fell below an objec tive
sta nd ardof

re a so na ble ne ss, ” S tr ickla ndv. Was hin g ton , 4 66 U. S. 6 68 , 6 88 (1 98 4) , a ndthat th is perf ormanc e pre

judiced the def

ense, r esulting in a

failure to produce a re liable re sult, id. at 687; Cooper v. State, 849 S.W.2d 744, 747 (Tenn. 1993). To sa tisfy the re quirement of prejudice , a defe ndant must show a re asonab l e p robabili ty that, but for counse l’s unrea sonable e rror , the fa ct finder w ould have ha d rea sonable doubt re g arding the def endant’ s g uilt. S trickland, 466 U.S. at 695. This rea sonable proba

bilitymust be “suffic ient to undermine c onfidenc e in the outcome.” I d. at 694;

see a lso Harris v. St ate, 875 S.W.2d 662, 665 (Tenn. 1994).

W h en e v al u at i n g an i n ef

fe ct i v e a s s i s t an ce o f c o u n s el cl ai m , t h e r ev i ew i n g co u rt s h o u l d j u d ge the attorne y ’s per formanc e within the context of the ca se as a whole, taking into a ccount a ll releva nt

c ir c ums ta nc e s. Str ic kland , 466 U. S. at 690 ; Stat e v. Mit c he ll, 75 3 S.W.2 d 148 , 149 (T e nn . Crim. App. 1988). The revie win g co u rt m u st evaluate the questionable c onduct from the attorney ’s perspe ctive at the time. Strickland, 466 U.S. at 690; Cooper, 849 S.W.2d at 746; Hellard v. State, 629 S.W .2d 4, 9 (Tenn. 1982) . I n doing so, the revie wing court must be hig hly defe rential a nd “should indulge a strong presumption that counsel’s c on d u ct fa l ls within t he wide r ang e of

rea sonable prof

essional assistance .” B urns, 6 S.W .3d at 462. Counsel should not be dee med to have been ine ffe ctive mer ely

beca use a diff ere nt proce dure or

strateg y might have produce d a diffe rent result. Will iams v. State, 599 S.W .2d 276, 279-80 (Te nn. Crim. App. 1980).

The De fenda nt claims that Counsel was ineff ective by : (1) pre senting a def icient and

un re a so na

ble the ory of de fe ns e ; (2) no t hav ing the De fe nd a nt te sti fy that he onl y tou c he d th e vic tim on the outside of her

clot h es an d n o t u n der he r clothes; (3) failing to investiga te the ca se by not interviewing J onathan or

Casey prior to trial; (4) g iving a short, inadequate, opening statement; (5) not interviewing the victim prior to trial or using the informati o n g iven by the Def endant that the vic tim ha d p re vio us ly

re po rt e d a

ra pe a nd her f

a the r d id n ot b e lie ve he r c la im; (6 ) n ot c ro ssexamining Medlin reg arding her a lleg ed ac tiviti es as a prostitute and her coc aine use ; (7) not obtaining and revie wing the R ape Crisis C enter rec ords; (8) f

ailing to inquire about the victim’s emotional history ; and (9) Counsel’s lack of prepa ration, l ack of

contac t with the Defe ndant, fa ilure to notice er

rors in the jury

char g e and f

ailure to investigate t he constitutionalityof the De fenda nt’s prior convic tions.

As stated above , an i n q u i ry i n to the eff ectivene ss of counsel is a two- prong analy sis. The first prong require s that a def endant pr ove that his tri al co u n s el ’s repr esenta tion fell below an objective standa

rd of r easona

bleness, a n d t he sec ond prong require s that the defe ndant show a

rea sonable proba

bilitythat, b u t fo r t h i s defic ient perf ormanc e, the f

act f inder would ha ve had

rea sonable doubt re g arding the petitioner’s g uilt. W e now addre ss whether the Def endant pr oved that Counsel’s repr esentation fell below an obje ctive standa rd of r easona

blen es s fo r an y

of the-21-

a c tio ns a lle g e d b y

the De fe nd a nt.

The De fendan t al l eges that Counsel was ineff ective by prese nting a

defic ient and

unrea sonable theory

of def ense. Co u n s el t estified that his theory of def ense w as to attac k the victim’s cre dibilit y

by showing inconsistencies in her tes t i m o n y an d to sugg est that one of he r boy friends inflicte d her injuries. In revie wing Counsel’s conduct, a “fa ir assessment . . . require s that

every eff ort be made to e liminate the distorting eff ect of hindsight, to r econstruc t the circ umstances of counse l’s challeng ed conduc t, and to evaluate the conduc t from counse l’s perspe ctive at the time.” Nichols v. State, 90 S.W .3d 576, 587 (Tenn. 2002) (citing Strickland, 466 U.S. at 689). The fac t that

a pa rt icul ar s tr a te g y

or ta c tic faile d o r h urt th e de fe ns e do e s n ot, sta nd ing a lon e , e sta bli sh

unrea sonable re prese ntation. Booke r v. State, No. W2003-00961-CCA-R3-PC, 2004 W L 587644, at *4 (Te nn. Crim. App., at J ackson, Ma r. 24, 2004). Def

ere nce to matters of strateg y and tac tical choice s applies only

if the choic es ar e informe d ones base d upon adequate prepa ration. Henley

v. State, 960 S.W .2d 572, 579 (Tenn. 1997) . The De fenda nt contends that C ounsel should have prese nted the theory of defe nse that he rubbed the victim on the outside of her clothes, but that he

never touched he r underneath her clothes. This would have r equire d the Def endant to testify . Had Counsel called the D ef

en d an t t o testify , the Def endant c ould have be en impeac hed by his prior burg laries, his re cent a ctivities looking into t he windows of multiple women a nd by his prior statement to police that he had not touched the victim at al l o n t h e night of the ra pe. Counsel de te rm ine d th a t th e imp e a c hme nt of the De fe nd a nt wo uld do mor e ha rm than th e g oo d th a t w ou ld be done by

his testimony . I n our view, this dec ision byCounsel d o es n o t fa ll below an objec tive
sta nd ardof

re a so na ble ne ss. F urthe r, we c on c lud e that th e e vid e nc e do e s n ot p re po nd e rate a g a ins t the trial court’s finding that Counsel w as not ine ffe ctive in pr oviding a theory of def ense. F urther, even if we de termined that the e vidence did so preponder ate, we could not conclude that the Def endan t p r o v e d th a t h e w a s p r e ju d ic e d b y

th is s tr a te g y

. “ [I ]t

c a n n o t b e s a idth a t i n c o mp e te nt repr esentation has occur

red me rely

beca use other lawy ers, judging from hindsig ht, could have ma de a better choice of tac tics.” He llard v. State, 629 S.W.2d 4, 9 (Tenn. 1982).

Th e De fe nd a nt al so c on te nd s tha t Coun se l wa s ine ff e c tiv e by faili ng to i nv e sti g a te the c a se by no t in te rv ie wi ng Jona than o r C a se y prior to t ri a l. C ou ns e l st a te d th a t the De fe nd a nt w ro te him letter s c laim in g th a t th e v ic ti m h a d tw o b o y f r ie n d s , o n e n a me d Ca s e y M a xe y a n d o n e named Jona than. Coun sel adm it ted that he didno t f oll ow up on a ny

of thi s in fo rm a tio n. Cou ns e l a lso testified that he trie d to find J onat h an an d Casey , but that he was una ble to locate the m. The Def endant ha s provided no evide nce w hich would establish that, if a more thoroug h investigation had bee n conducte d, there is a rea sonable probability “the result of t he proc eeding s would have be en dif f e r e n t

. ” H e h a s n o tp r o v i d e d a n y a d d i t i o n a l i n f

o r m a t i o n t h a tc o u l d h a v e b e e n u s e d t o pr op e rl y impeach the victim. The trial court he ld that Counsel a dequate ly investigated the ca se. Afte r re view,

we fi ndno thi ng wh ic h w ou ld l e a d u s to distu rb the c on c lus ion s of the tr ia l cou rt that an a pp ro pr ia te investigation was conduc ted.

The De fenda nt asserts that Counsel was ineffec tive by g iving a short, inadequate, opening
statement. The Def

endant asserts tha t Counsel promised the jury that it would hea r a bout

“ b o yf r i e n d s ” r e f

e rr i n g t o J o n a t h a n a n d C a s e y a n d t h a t s u c h e v i d e n c e w a s n e v e r p r e s e n t e d t o t h e j u r y.-22-

Counsel testified that his strateg y was to impeac h the victim and call into question her c redibility and to sugg est that the vi ctim’s injury could have been c aused by a boy friend of

the victim rather

than the De fe nd a nt. Th e re are tw o ma jor c a se s in Te nn e sse e de a lin g wi th the failu re of c ou ns e l to fu lf

ill the promises made to the jury during voir dire or opening statement. I n State v. Z immerman, 823 S.W .2d 220, 221 (Tenn. Crim. App.1991), the defe ndant was char g ed with second de g ree murder, and during his opening statement counsel stated, i n acc ordanc e with trial strate g y , that the def endant and a psy cholog ist would testify reg arding the defense of “batter ed wife sy ndrome.” Howeve r, at the conc lusion of the State’s proof, counsel re commended to the de fenda nt that she not testify and rested w ithout presenting the testimony of an e x pert re g arding battere d wife syndrome or a ny additional proof. I d. This court conc luded that coun sel was inef fec tive, stating that “nothing chang ed during the cour se of the trial

. . . . I n other words, there appea rs to ha ve bee n no basis for the sudden c hang e in strateg y .” I d. at 226. I n State v. King , 989 S.W .2d 319, 330 (Tenn. 1999) , the de fe nd ant, who was con vi cte d o f fel on y mu rder , co mp lai ned th at h is cou ns el “ aban do ned th e def e ns e theory of voluntary intox ication afte r having introduced it to the jury during the opening statement.” During King ’s trial, his ex-girlf riend testified for the pr osecution that King had attempted to kill her

w h e n h e w a s s o b e r a n d
, w h il e d o in g s o , r e p e a te d ly a s k e d h e r “ h o w it f e lt to b e d y in g , s o th a t th e n e xt

wo ma n h e kil le d h e wo uldkn ow ho w she fe lt. ” I d. a t 331. At the po st- c on vic tio n h e ari ng , d e fe ns e counsel a sserted that “he de cided to abandon t h e u s e o f v oluntary intox ication to defe nd [t he defe ndant’s] actions afte r the [ex-girlfriend’s] testimony. . . [because the ] t estimony was une x pecte d and deva stating to the a ppellant’s ca se.” I d. Counsel ass er t ed t hat “the the ory of voluntary intox ication was r ender ed futi l e” s o Counsel “re vised the def ense the ory

solely in response to the surprise testimony .” I d. Our supre me court de termined that counsel’s chang e of strateg y during trial did not constitut e inef

fec tive assistance . I d.

Un l i k e t h es e tw o ca s es , i n t h e c as e p re s en t l y b ef o re u s , C o u n s el d i d n o tch an ge h i s s tra t egy during the cour se of t ri al
, rathe r he stuck to it by attacking the cr edibilityof the victim and sug g esting th a t s h e h a d o th e r b o y f r ie n d s

. I n h is o p e n in g s tate me n t, Co u n s e l s tate d th a t th e jur y would “hea

r about boy friends,” and he tried to illicit s uch testimony from the victim and f

rom her family

. His f

a il u r e to il li c it

th is te s ti mo n y

d o e s n o t f

a ll b e lo w th e o b

je c ti v e s tan d ar d of

rea sonablene ss. The evidence does not preponde rate ag ainst the t rial court’s finding that Counsel’s perf ormanc e at tria l was not ineff ective in this reg ard.

The De fenda nt also asserts that Counsel wa s ineffe ctive b eca use he did not interview the victim prior to trial and did not question her about whether she had pr eviously

reported a r ape to he r fat h e r a n d w h e t h e r

h e r f a t h e r b e l i e v e d h e r

c l a i m

. T h e D e f

e n d a n tc o n t e n d s t h a t , w e r e t he se alleg ations true, it would g o to the victim’s cre dibilit y

. Howeve r, Counsel reque sted that the trial

c ou rt a llo w him to de lve int o the vic tim ’s se xua l hi sto ry , a ndthe tr ia l c ou rt sp e c if ic a lly or de re d th a t, beca use the injury o cc u rr ed within 72 hours of the victim being examined by Nurse Mc Donald, Counsel could onl y question the vi ctim about s exual encounte rs wit hin that time frame . There fore
, by order of the trial court, Counsel w as unable to inquire about this a lleg ation, and such a ction on Counsel’s part wa s not ineffe ctive. As to his failure to interview the vic tim, the Def endant ha s not pr ov e d ho w a ny fu rthe r inv e sti g a tio n wo uld ha ve be ne fi tte d him

. Ac c or din g ly , w e c on c lud e that th is iss ue is w ith ou t me ri t.-23-

Th e De fe nd a nt n e xt co nte nd s th a t Co un se l di d n ot a de qu a te ly c ro s s

- e xa min e Me dli n b e c a us e he did not ask h er ab o u t h er a lleg ed ac tiviti es as a prostitute and her

alleg ed coc aine use . At the motion for new trial, the Def endant did not question Counsel w ith r eg ard to Counsel’s decision not
to cr os s- e xami ne Me dli n re g ard ing the se iss ue s. Ac c or din g ly , we a ssu me that th is w a s a str a te g ic decision on Counsel’s part. As previously noted, this court will not “second g uess” the ta ctical a nd
strate gi c d ec i s i o ns of counse l. Cooper, 849 S.W.2d at 746. According ly , we c onclude that the

e vid e nc e do e s no t pr e po nd e rate a g a ins t th e tr ia l c ou rt ’s fi nd ing that Co un se l w a s n ot i ne ff e c tiv e in this reg ard.

The De fenda nt next alleg es that Counsel w as ineffe ctive by not obtaining a nd revie wing the Rape Crisis Center re cords. Counsel testified that he had his sist er, w ho was a nurse pr actitioner,

re vie w the qu a lif

ic a tio ns of

the nu rs e a t the Rape Cr isi s Ce nte r, a ndhis sis te r r e po rt e d th a t th e nu rs e prac titioner perf

orming the victim’s exam was ade quately qualified. At the hea

ring on the motion for ne w trial, the De fenda nt called a repr esenta tive of the rape crisis cente r as a witness who ve rified the qu a lif ic a tio ns of

the nu rs e pr a c tit ion e r w ho pe rf orme d th e vic tim’s e xam. Th is w itn e ss a lso produce d the victim’s rec ords from the rape crisis ce nter, whic h have be en re viewed in c amer a by the trial court and by

this court. The trial c ourt’s, and our, revie w of those recor ds establishes that there was no e vidence contained the rein that would ha ve aide d the Def endant at trial. There fore , the Def endant has not proven that a ny alleg ed inef

fec tive actions by

Counsel in this reg ard pr ejudiced him in any

way

.

The De fenda nt also asserts that Counsel wa s ineffe ctive for failing to inquir e ab o u t the victim’s emotional history . He, howe ver, did not question Counsel about this issue and provides no evidenc e re g arding the victim’s emotional history or how that history

woul d have be en bene ficial to his defense . I n light of this bar e alleg ation, we f ind that this i ssue is without merit.

Finally , the Def

endant a sserts that the cum u la ti v ee f f e c t o f Co u n s e l’s lack of

prepa ration, lac k of conta ct with the Def

endant, f ailure to notice err ors in the jury char g e and failure to investiga te the

c on sti tut ion a lit y of the De fe nd a nt’ s pri or c on vic tio ns c on sti tut e d ine ff e c tiv e a ssi sta nc e of

c ou ns e l. The trial c ourt found that the De fenda nt “offe rs no evidenc e to e s t abli sh that any actions by

trial

c ou ns e l w e re de fi c ie nt o r p re jud ic ia l to h im. ” We c on c lud e that th e e vid e nc e do e s n ot p re po nd e rate ag ainst this finding.

E. Constitution ality of T ennessee Code A nnotated section 40-35-120

The De fenda nt asserts that Tennessee Code Annotated se ction 40-35-120 is unconstitutional for the f ollowing r easons: (1) it violates equal protect i o n l aw s beca use “the L eg islature lac ked a rational ba sis for extending jury determination of rec idivism to some classes of defe ndants but not to others” a nd beca

use “the L eg islatu re lacke d a rational basis to treat ce rtain cla ssifications of ‘violent offe nders’ more fa vorably than others;” and (2) it deprives him of due proc ess as noted by two United States Supreme Court ca s es t h at “prohibit sentencing . . . defe ndants on an e nhance d basis as a r esult of prior c onvictions, without t he jury making such dete rmination.”T ha t C o d e se cti o n stat es: 2

If

t he cri m i nal off

ense f o r whi ch t he d efend ant i s charged carri es an enhanced punis hm ent fo r a se c o n d o r su b se q u e n t vio la tio n o f t h e sa m e o ff e n se the in d ic tm e n t i n a se p a ra te c o u n t sha ll

s peci f y an d cha r ge s uch f act

. I f t he defendan t i s conv i ct ed of t he offens e, t hen t he j ur y mus t f i nd t hat bey ond a r eas onabl e d oubt t he defendan t has b een p r evi ous l y co nv i ct ed t he r equi s i t e number of t i mes for t h e s ame of

fen s e. U pon s u ch f i nd i ng, the de fen dan t s h al l be s u bj ec t t o t h e au t h or i ze d t er ms of im p riso n m e n t f

o r th e felo n ie s a n d m isd e m e a n o rs a s se t f o rth in § 4 0 -3 5 -1 1 1

.
-24- 1. Equ al P rote ction

F ir st, the Def

e nd a nt c on te nd s th a t T e nn e sse e Cod e An no ta te d s e c tio n 4 0- 35 -1 20 is

un c on sti tut ion a l be c a us e it v iol a te s e qu a l pr ote c tio n la ws by e xten din g jury

de te rm inatio n to so me de fe nd a nts a ndno t othe rs a ndby tr e a tin g c e rt a in c la ssi fi c a tio ns of vio le nt of fe nd e rs mor e fa vo ra

bly than o the rs . With r e g ard to his fi rs t ass e rt ion , the De fe nd a nt not e s tha t th e “ re pe a t vi ole nt o ff e nd e rs ”
statut e , a lso c omm on ly

re fe rr e d to a s th e “ thr e e strike s” statut e , s ta te s, in p art , “ Th e c ou rt sh a ll
sentenc e a de fenda nt who has bee n convicted of any offe nse list ed i n s u bdivision (b)(1), (c )(1) or (d )( 1) to i mpriso nme nt f

or lif e wi tho ut the po ssi bil ity

of pa ro le if the c ou rt fi nd s bey on d a re a so na ble doubt that the defe ndant is a re peat violent off ender as def ined in subsection (a) .” Te nn. Code Ann. § 40-35-120( g ). The D efe ndant then ar g ues that th i s statute, which mandates that the trial court d et er mine whether

the def endant is a violent off

ender , constitutionallyconflicts with Tenne ssee Code Annotated se ction 40-35-203( e) ( 1997), which re quires that a jury determine whether

the 2 defe ndant wa s p re v iouslyconvicted of an off ense use d to enhanc e punishment for a second or subsequent violation of the same offen s e, i n v i o l ation of his equal pr otection rig hts. Next , the Def endant c ontends that the violent offe nders statute specific ally exempts t he off

ense of “robbe ry by use of a deadly wea pon” as a prior violent offe nse in determining whether a defe ndant is a re peat violent offende r, there by

trea ting some violent offe nders differe ntly than ot hers, in violation of equal protec tion laws.

Article X I , section 8 and A rticle I , section 8 of the T ennesse e Con s t itution provide for the

e qu a l pr ote c tio n o f l a w pr ov isi on s. Artic le XI , s e c tio n 8 of the Te nn e sse e Con sti tut ion pr ov ide s in pe rt ine nt p art :

Ge neral laws only to be pass ed.-- The L eg islature shall have no pow er to suspend any g ener al l aw for t he benefit of any particula r i ndividual, nor t o pass any law for the be ne fi t of ind ivi du a ls inc on sis te nt wi th the g e ne ra l la ws of the la nd ; no r t o p a ss any la w g r a n ti n g to a n y in d iv id u a l o r in d iv id u a ls
, r ig h ts , p r iv il e g e s , im mu n it ie, or exemptions other than suc h as may be, by the s ame law extended to any member of the community , who may

be able to bring himself within the provisions of such law.

Artic le I , s e c tio n 8 of

the Te nn e sse e Con sti tut ionpr ov ide s a s f oll ow s:

No m an to be distu rbed but b y law .-- That no man shall be ta ken or imprisoned, or disseized of his fre ehold, liberties or privileg es, or outlawed, or exi led, or in any-25-

manner destroy ed or deprived of his life, l iberty or property , but by the judg ment of his peers of

the law of

the land.

Our supre me court has not ed that these two provisions of t he Te nnessee Constit ution provide fo r the e qu a l pr otection of la ws . St a te v. Te ste r, 87 9 S. W.2 d 8 23 , 8 27 (T e nn . 1 99 4) . T he se pr ov isi on s o f the Te nn e sse e Con sti tut ion pr ov ide the sa me pr ote c tio n as the e qu a l pro te c tio n c laus e in the United States Constit ution. I d. Unless the leg islative classification disadvantag es a “ suspect class” or interfe res with the ex erc ise of a “ fundame ntal rig ht,” re quiring strict scrutiny analy sis, the challeng ed st atute is examined under the “rational basis test.” I d. at 828; State v. Price, 124 S.W.3d 135, 138 (Tenn. Crim. App. 2003) . The statute involved in this a ppeal must be analy zed under the “rational basis test.” State v. Wyrick, 62S.W.3d 751, 792 (Tenn. Crim. App. 2001).

The Te nnessee Supreme Court has state d:

Eq ua l pr ote c tio n c on sti tut ion a l pro vis ion s g ua rante e that “ ‘a ll p e rs on s si mil arl y circ umstanced sha ll be treated alike.’” Tennessee Small Sch. Sy s. v. McWherter , 851 S.W. 2d13 9, 15 3 ( Te nn . 199 3) (q uo tin g F .S. Roy ste r Gu a no Co. v. Vi rg ini a , 2 53 U. S. 412, 415, 40 S. Ct . 560, 562, 64 L . Ed. 989 (1920)) . This court has sa id: The initial discr e ti o n to d e te r mi n e w h a t is “ d if f e r e n t” a n d w h a t is “ th e s a me ” r e s id e s in the le g isl a tur e s o f the S tate s, a ndthe le g isl a tur e s a re g ive n c on sid e ra

ble la titud e in de te rm ini ng wh a t g ro up s a re dif fe re nt andwh a t g ro up s a re the sa me

. . . . In mo st instances the judicia l inquiry into the l egi s l at i v e choic e is limit ed to whethe r the classifications have a r easona ble re lationship to a leg itimate state interest.

Sta te v. Rob ins on , 2 9 S. W.3 d 4 76 , 4 80 (T e nn . 2 00 0) . T he de te rm inativ e iss ue is w he the r the fa c ts show some reasonable basis for the disparate state action. Har rison v. Schrade r, 569 S.W .2d 822, 825-26 (Te nn. 1978). Unde r this standard, if some r easonable basis ca n be found f or the classification, or if any state of fac ts ma y be rea sonably be conc eived to justify it, the classification wi ll b e up h e l d

. T e n n e s s e e S m a l l S c h

. S y s , 8 5 1 S

. W

. 2 d a t 1 5 3

- 5 4

. T h e b u r d e n o f s h o w i n g tha t a classification is unreasonable and ar bitrary is placed upon the i ndividual challeng ing the statute, and

“ if a ny state of fa c ts c a n re a so na

bly be c on c e ive d to jus tif

y the c la ssi fi c a tio n or if the re a so na ble ne ss of the c lass if fair ly

debata ble, the statute must be upheld.” I d.

The United States Supreme Court sta ted, “Equa l pr otection does not r equire that all persons be dea lt with identically , but it does require that a distinction made have some rele vance to the purpose f or which the classification is made.” Ba x strom v. Her old, 383 U.S. 107, 133 (1966). Equal protec tion of the law re quires that the state trea t pe rsons under like circ umstances and conditions the

same. Gene sco, I nc. v. Woods, 578 S .W.2d 639, 641 (Tenn. 1979), supersede d on other grounds by Combu sti on En g ’g , Inc

. v. Jac ks on , 70 5 S.W. 2d 65 5 (T e nn

. 19 86 ). F or thi s r e a so n, “ ‘[r ]ec idi vis t statutes do not v i o l ate e ither the e qual protec tion or the due proc ess provisions of the State and Fe dera l Consti tutions.’” Wyrick 62 S.W.3d at 791 (quoting State v. Yar bro, 681 S.W.2d 521, 525 (T e nn . Crim. Ap p. 19 81 )) . In Wy ri c k, thi s Co urt a dd res sed whe the r the vio le nt o ff e nd e r s ta tut e violates equa l protection bec ause it pre vents the t rial court from considering any mitigating fac tors-26-

i n s et t i n g th e d ef

en d an t ’s s en t en ce , s t at i n g:

[T] he repe at violent of

fende r statute trea ts de fenda nts w ho have committe d ei ther two or three of ce rtain spec ified violent offe nses alike in that it imposes a sentenc e of life without par ole for a ll qualify ing de fenda nts. See Te nn. Code Ann. § 40-35- 12 0( g ). Re pe a t vi ole nt o ff e nd e rs are un de r d if

fe re nt c ir c ums ta nc e s th a n d e fe nd a nts who have not committed at least two violent offe nses. Ther efor e equa l protection of the law doe s not require that these two c ateg ories of of fende rs be tre ated a like.

I d. at 792.

We find our hol ding in Wyrick inst ructive to this case and conclude that the violent offender
statut e do es not v iol a te the e qu a l pr ote c tio n o f l a ws a ff or de d b y ou r c on sti tut ion . A s w e state d in Wyrick:

The purpose of the sente ncing statutes is to promote justi ce. T enn. Code Ann. § 40- 35-102. Among the sente ncing principles desig ned to promote that purpose are the p ri n ci p l es o f p re v en t i n g cr i m e a n d p ro m o t i n g r e s p e c t f o r t h e l aw b y

p ro v i d i n g a de te rr e nt t o th os e lik e ly

to v iol a te the la w an d inc arc e ratin g de fe nd a nts wh o c omm it the most se vere offe nses. Tenn. Code Ann. § 40-35- 102(3)( A), (5) . Furthermore , the leg islature has a

leg itimate interest in protec ting citizens fr om c rime as a part of the state’s police power . Motlow v. St ate, 125 Te nn. 547, 566, 145 S.W . 177, 183 (1912). The leg islature’s de cision to impose the very sev er e sentenc e of life imp ri so nme nt w ith ou t th e po ssi bil ity of pa ro le up on tho se c ri min a ls w ho re pe a te dly commit v i o l en t offense s is rationally related to its desire to protec t the public and deter crime. See Tay lor, 628 S.W .2d at 47; see a lso State v. Thompson, 36 S.W .3d 102, 116 (Tenn. Crim. App. 2000). Thus, the re peat violent off ender statute does not violate the def

endant’ s rig ht to equal protec tion of the law.

I d. (par enthetica l information omitted).

I n the c a s eu n d e r submission, the Defe ndant’s first a ssertion is that the repe at violent offe nder statute violates his equal p rot ection rig hts because other statutes require that a jury determine whether a pre vious offense was c ommitt ed and the violent offende r statute mandates that the trial
court m ak e thi s determination. As we stated in Wyrick, “ [r] epeat violent offende rs ar e under dif fe re nt c ir c ums ta nc e s th a n d e fe nd a nts wh o h a ve no t c omm itt e d at le a st t wo vio le nt o ff e ns e s. There fore , the equa l protection of the law does not re quire that these two cate g ories of of fende rs be
treated alike.” I d. There fore , we c onclude that this issue is without merit.

The De fenda nt’s second a ssertion is that the repeat violent off ender statute violates his equal pr ote c tio n rig ht s becaus e it tre a ts s ome vio le nt o ff e nd e rs dif fe re ntl y than o the r v iol e nt o ff

e nd e rs

. Th e De fe nd a nt con te nd s th a t th e statut e re mov e s o ff e nd e rs wh o c omm it r ob be ry wi th a de a dly

we apo n a ndof

fe nd e rs w ho c omm it a g g ra vate d a ssa ult fr om the lis t of

of fe ns e s th a t are us e d to-27-

qu a lif y a de fe nd a nt a s a re pe a t viol e nt of fe nd e r, the re by

tr e a tin g so me vio le nt o ff

e nd e rs dif fe re ntl y from other s. The violent offe nder statute d ef i n es a “repea t violent offende r” in six way s, one of wh ic h is a

de fe nd a nt w ho “ [ h] as a t le a st o ne (1 ) p ri or c on vic tio n f

or a n o ff e ns e c la ssi fi e d in subdivision (d)(1) or ( d)(2) as a violent off ense wi t h the exception of the prior offe nse of r obbery b y u s e of a dea dly

wea pon as listed in § 40-35-118.” T enn. Code Ann. § 40- 35-120(a )(6) . The of fenses li st ed in ( d) (1 ) o f the statut e are : f ir st d e g re e mur de r; se c on d d e g re e mur de r; e sp e c ia lly ag g ravated kidnapping ; e s p e c ia ll y a g g r a v ate d

r o b b e r y ; a g g r a v ate d

r a p e ; a g g r a v ate d

a r s o n ; a g g ravated kidnapping ; rape ; ag g r avate d sexual battery ; espec ially ag g ravated burg lary ; ag g ravated child abuse ; ag g ravated sexual ex ploitation of a minor; or espec ially ag g ravated sexual ex ploitation of a minor. Tenn. Code Ann. § 40- 35-120(d) (1). Sec tion (d)(2) sta tes that offe nses “which we re repe aled on November

1, 1989, and ar e listed in § 40-35-118 a s Class A or B f elonies ag ainst a per son, with the exception of t he offense of robbery by use of a deadly wea pon, are classified a s violent offense s.” Tenn. Code Ann. § 40- 35-120(d) (2).

The off ense of “robbe ry by use of a de adly wea pon” as c odified in the historical sec tion of the Co de 3 9- 2- 50 1 ( 19 82 a ndSup p. 19 88 ) i s n ow c od if ie d in thr e e se pa

rate Cod e pr ov isi on s: Tenne ssee Code A nnotated section 39-13- 401, defining robbery as the “ intentional or knowing theft of prope rty

from the person of

another by violence or

putting the pe rson in fea

r; section 39-13- 402 defining ag g ravated robbe ry as “r obbery

. . . acc omplished with a deadly wea pon

. . . ; or . . . wher e the victim suffer s seri o u s bodily injury ;” and se ction 39-13-403 de fining espec ially ag g ravated robbery as “r obbery

. . . acc omplished w ith a deadly wea pon; and wher e the victim suffer s serious bodily injury .” Te nn. Code Ann. §§ 39-13- 401(a) , -402 (a )( 1 )-(2), -403(a )(1) -(2) . By listi ng

e sp e c ia lly a g g ra vate d r ob be ry in (d )( 1) a nd omi tti ng ro bb e ry by us e of a de a dly we apo n f ro m th e lis t in (d)(2) , the leg islature ensur ed that only offe nders that c ommit robbery wher e the victim suffe red serious bodily

injury would be conside red repe at violent of fende rs under

the violent offe nder statute. Simi larly , the leg islature omitted the crime of ag g ravated assault fr om the list i n (d)( 1) and ag g ravated assault may

be committed when an offe nder “ uses or display s a deadly wea pon” whe n

c o mm itti n g a s s a u lt
, b u t d o e s n o t c o mm it b o d il y in ju r y

. T e n n

. Co d e A n n

. § 3 9

- 1 3

- 1 0 2 ( 1 9 9 7 )

. We

c on c lud e that th e le g isl a tur e ha s a ratio na l bas is fo r tr e a tin g of fe nd e rs wh o in fl ic t se ri ou sly bo dil y inj ury up on a vic tim du ri ng the c omm iss ion of a c ri me dif fe re ntl y fr om tho se wh o c omm it that c ri me while bra ndishing a deadly wea pon, but c ause no phy sical injury to the victim. Further, we c onclude that the leg islature has a

rational ba sis for t reating rapists, who sexuallypenetr ate statutorily define d

are a s o f a vic tim dif fe re nt fr om fe lon s wh os e c ri me s do no t inv olv e su c h a vio la tio n of the vic tim

. Acc ording ly , the Def

en d an t , whose pre vious crimes include r ape, w hich re quires pene trating the vic tim , w a s n ot d e nie d th e e qu a l pr ote c tio n o f l a w. We c on c lud e that th is i ssu e is w ith ou t me ri t.

2. DueP r oc e ss a nd P r ohi bit ion s A ga inst Enha nc e d P unis hm e nt

Th e De fe nd a nt c on te nd s th a t th e vio le nt o ff e nd e r s ta tut e viol ate s his du e pr oc e ss rig hts be c a us e it i s v a g ue a ndov e rb ro a d a ndis c on tr ary to t wo su pr e me c ou rt

c a se s th a t “ pr oh ibi t sentenc ing . . . de fenda nts on an enha nced ba sis as a re sult of prior convic t i o n s, without the jury making such dete rmination.” The D efe ndant contends tha t the lang uag e of the violent offe n der statute is “par t i cu l ar ly

confusing ” and “ [t ]he statutory lang uag e and de finitions failed to provide-28-

adequat e notice to per sons of what c onduct constitutes repe at violent offe nder status.” The Def endant a lso contends that two United States Supreme Court c ases, Ring v. Arizona, 536 U.S. 584 (2002), a nd Appre ndi v. New J er s ey , 530 U.S. 466 (2000), “pr ohibit sentencing defe ndants on an enhanc ed basis as a

result of prior

convictions without the jury making such dete rmination.”

a. Due P r oc e ss

Th e c on sti tut ion s of the Un ite d Stat e s andthe Sta te of Te nn e sse e g ua

rante e de fe nd a nts in a ll criminal ca ses due pr ocess of law and the rig ht to a fair and impartial jury

. State v. Carruthe rs, 35 S.W .3d 516, 559 (Tenn. 2000). When a defe ndant challeng es the c onstitut ionality of a statute, the g ener al principles of

statutory construction apply . Appellate c ourts are char g ed with upholding the constitutionalit y

of statutes wher ever possible. State v. L y ons, 802 S.W .2d 590, 592 (Tenn. 1990)

. I n other wor ds, we are required to indulge every presumption and re solve eve ry doubt in favor of

the constitutionalit y

of the statute whe n revie wing a statute for a possible constitutional infirmity . I d.;

se e a lso I n r e B ur so n, 90 9 S. W.2 d 7 68 , 7 75 (T e nn . 199 5)

. Ge ne ra lly , th e la ng ua g e of a pe na l st a tut e must be clea

r and c oncise to give adequate warning so that individuals m ight a void the prohibited

c on du c t. S e e Sta te v. B oy d, 92 5 S. W.2 d 2 37 , 2 42 -4 3 ( Te nn . Cr im. Ap p. 19 95 ). A s ta tut e is v oid for va g ueness if it is not “ sufficie ntly prec ise to put an individual on notice of pr ohibited activities.” State v. Thomas, 635 S.W .2d 114, 116 (Tenn. 1982); see also State v. Wil kins, 655 S.W .2d 914, 915 (Tenn. 1983)
, supersede d by statute as stated in State v. Dominy , 6 S.W .3d 472 (Tenn. 1999)

.

A criminal statute “shall be construe d acc ording to the fair import of [its] t er ms” when de te rm ini ng i f

i ti s v a g u e

. T e n n

. C o d e A n n

. § 3 9

- 1 1

- 1 0 4

. “ D u e p r o c e s s r e q u i r e s t h a ta s t a tut e provide ‘f air wa rning ’ and pr ohibits hol ding an individual criminally liable for c onduct that a pe rson of c omm on int e lli g e nc e wo uld no t hav e re a so na bly un de rs too d to be pr os c ri be d. ” Sta te v. B ur kh art , 58 S.W .3d 694, 6 9 7 (Tenn. 2001) (citing Gra y ned v. City of Rockfor d, 408 U.S. 104 (1972)). Neve rtheless, the Te nnessee Supreme Court has noted that “absol u te p r e c is io nin

dr a f ti n g p r o h ibitory leg islation is not r equire d since prosec ution c ould the n easily be evade d by scheme s and devic es.” Wil kins, 655 S.W .2d at 916; see also B urkhart, 58 S.W .3d at 697; State v. McDona ld, 534 S.W .2d 65 0, 65 1 ( Te nn . 1 97 6) . T o d e te rm ine wh e the r a statut e is un c on sti tut ion a lly va g ue , a c ou rt sh ou ld

c on s i d e r w h e t h e r t h e s t a t u t e ’ s p r o h i b i t i o n s ar e n o t c l e ar l y d e f i n e d a n d ar e t h u s s u s c e pti ble to differ ent interpre tations reg arding that which the statute actua lly proscribes. State v. Whit ehea d, 43 S.W .3d 921, 928 (Tenn. Crim. App. 2000). There fore
, a statute is not unconstitutionallyv ague “‘w hi ch b y o rderly

proce sses of litigation can be r ender ed suff iciently definite a nd certain for p u rp o s e s o f

j u d i c i a l d e c i s i o n

. ’ ” W i l k i n s , 6 5 5 S

. W

. 2 d a t9 1 ( q u o t i n g D o n a t h a n v

. M c M i n n C o u n t y, 187 Tenn. 220, 228, 213 S.W.2d 173, 176 (1948)).

The De fenda nt contends that the statute is va g ue beca use the define d term “se parate period of inc arc e ratio n, ” wh ic h is us e d to de te rm ine wha t “pri or con vic tio ns ” the of fe nd e r h a s, is constitutionallyvag ue b ec ause it is unclea r whe ther a

defe ndant must serve one period of incar cer ation for his prior c onvictions or two periods of incarc eration. The Def endant a sserts that he wa s twice c o n v i ct ed of ra pe, but was c onfined for one continuous term of incar cer ation. There fore , it is unclear whe ther he serve d “s ep ar at e p eriods of incarc eration” as re quired by the-29-

statute.

Acc ording to Tennesse e Code Annotated sec tion 40-35-120, there are three way s to qualify

a s a re pe a t vi ole nt o ff

e nd e r. Pur su a nt t o s ub div isi on s ( a )( 5) a nd(a )( 6) of the statut e , an of

fe nd e r i s

a re pe a t vi ole nt of

fe nd e r if the of

fe nd e r i s c on vic te d o f any of fe ns e lis te d in (d )( 1) a ndha s a t le a st

on e prior c on vic tio n f

or a ny of fe ns e c la ssi fi e d in (d )( 1) or (d )( 2) , e xce pt r ob be ry

by us e of a de a dly

wea pon, which is listed in the now repe aled statute, Tenne ssee Code Annotated se ction 40-35-118. Subdivis ion (d)(1) lists t he app l i ca b l e offe nses as: first deg ree murder; se cond deg ree murder; espec ially ag g ravated kidnapping ; espec ially ag g ravated robbery ; ag g ravated ra pe; ra pe of a child; ag g ravated ar son; ag g ravated kidnapping ; rape ; ag g ravated sexual battery ; esp ec i al l y ag g ravated burg lary ; ag g ravated child abuse ; ag g ravated sexual e xp lo it ation of a minor; or espe cially

ag g ravated sexual ex ploitation of a minor. Tenn. Code Ann. § 40- 35-120(d) (1). Subdivision (d)(2) state s that “F or purpose s of subdivision (a)(6) , the offe nses which we re r epea led on Novembe r 1
, 1 9 8 9, and

are lis te d in § 40 -3 5- 11 8 as Cla ss A or B fe lon ie s ag a ins t a per so n, wi th the e xce pti on of the of fe ns e of robbe ry

by use of a deadly wea pon, are classified a s violent offense s.” Tenn. Code Ann. § 40- 35- 120(d)( 2).

I n d e te rm ini ng the nu mbe r o f p ri or c on vic tio ns a

de fe nd a nt ha s re c e ive d th e tr ia l c ou rt mus t determine the number c onvictions that qualify as “prior convictions” pur suant to statut e. Te nn. Code An n. § 4 0- 35 -1 20 (e )( 1) (C ). Th e statut e state s:

“Prior convic tion” means a defe ndant serve s and i s re l ea sed fr om a period of inc arc e ratio n f

or the c omm iss ion of

a n o ff e ns e or of fe ns e s so that a

de fe nd a nt mus t: . . .[t ]o qualify under subdivision (a )(5) and (a) (6), at least one (1) separ ate pe riod of incar cer ation for the c ommissi on of a pr edicate offe n s e d es ignated in subdivision (d )( 1) or (d )( 2)
, wi th the e xce pti on of the prior of fe ns e of ro bb e ry by us e of a de a dly

we apo n a s li st ed in § 40- 35 -1 18 , b e fo re c omm itt ing a n o ff e ns e de sig nate d in subdivision (d)(1).

Te nn . Co de An n. § 4 0- 35 -1 20 (e )( 1) (C ). “ ‘S e pa rate pe ri od of inc arc e ratio n’ inc lud e s a se nte nc e to a community

corr ection prog ram pursuant to chapter 36 of this titl e, a se ntence to split confine ment pursuant to § 40-35-306, or a sente nce to a

periodic c onfi n em en t p ursuant to § 40-35-307. . . .” Tenn. Code Ann. § 40- 35-120(e )(2)

.

I n the ca se under

submissi on, the trial court found that the De fenda nt qualified as a repe at violent offende r pursua nt to subdivi sions (a)( 5) and (a) (6) of the statute be cause he wa s convicted of a g g ra vate d r ape a ft e r Jul y 1, 19 95 , w hic h is a vio le nt of fe ns e lis te d in ( d) (1 ), a ndhe ha s a t le a st one prior c onviction for an of fense listed in (d)(1), that being rape . The trial c ourt found “that [ the De fe nd a nt] w a s p re vio us ly c on vic te d of tw o c ou nts of ra pe in the Kn ox Cou nty Cr imi na l Cou rt in 1987 with the judgme nt of the Court, being enter ed on January 20th, 1987, in Division I I of Criminal Court of Knox C ounty ” and that the Def endant “ serve d a period of incar cer ation resulting from that conviction and wa s relea sed in 2000.”W e r ecogn i ze t hat t he D ef endan t l at er ar gu es t hat t he St at e di d not prove t hat he was pre vi ous l y conv i ct ed 3

o f t hese r ap es. T hat argument wi l l be ad d res sed l at er i n t hi s o p i ni o n.

-30- The De fenda nt does not dispute that he was convicted of two previous ra pes, and he doe s 3
not dispute that he wa s sentence d to a prison term for those convictions. The D efe ndant also does not contest that, in this case, the D efe ndant was c onvicted fo r aggr av at ed rape. Rather , what the De fe nd a nt d isp utes is that th e te rm “ se pa rate ” is c on sti tut ion a lly

va g ue . We c on c lud e that th is

arg ume nt i s w ith ou t me ri t. T he statut e re qu ir e s th a t th e Defen dan t be c on vic te d o f any of fe ns e classified in subdivision (d)(1) as a violent off ense a fter 1995. See Tenn. Code Ann. § 40-35-120 (a )( 5) , ( 6)

. He re , the De fe nd a nt wa s c on vic te d of a g g ra vate d ra pe , wh ic h is a n o ff

e ns e c la ssi fi e d in subdivision (d)( 1) as a viol ent offense. Next, the Def endant must have at least one prior convic tion for a n offe nse classified in subdivision (d)( 1) as a viol ent offense. Here, the Def endant ha d two prior convictions for r ape, w hich is an off ense c lassified in (d)( 1) as a violent offense. The De fenda nt

se rv e d o ne te rm

in p ri so n f

or his tw o p re vio us ra

pe c on vic tio ns . T his , h owever, class if ie s a s a “sepa rate period of incar cer ation” beca use it is a period of incar cer ation “sepa rate ” fr om the period of inca rce ration for

the cur rent a g g ravated ra

pe off ense. B eca

use sec tions (a)(5) and (a )(6) require only one prior of

fense , it is clear that whe n the L eg islature used the term “s ep ar at e p eriod of incar cer ation,” it meant a pe riod of inca rce ration separ ate from the period of incar cer ation to which the re peat violent off

ender is being curr ently

sentenc ed. We h o l d t h at t his statute is not

un c on sti tut ion a lly

va g ue , a nd , a c c or din g ly , w e c on c lud e that th is i ssu e is w ith ou t me ri t.

b. P r ohi bit ion s A ga inst Enha nc e d P unis hm e nt

The De fenda nt also contends that two United States Supreme Court ca ses, Ring v. A rizona, 536 U.S. 584 (2002), and Apprendi v. Ne w J erse y , 530 U.S. 466 (2000), “pr ohibit sentencing defe ndants o n an enhanced ba sis as a re sult of prior convictions without the jury making such determination.” I n Appre ndi, the United S tates S upreme Court held, “Other t han the fac t of a prior

c on vic tio n, a ny

fa c t that inc re a se s th e pe na lty fo r a c ri me be y on d th e pr e sc ri be d s ta tut ory ma ximum ” must be determined by the jury

. Appre ndi, 530 U.S. at 490; Wy rick, 62 S.W .3d at 761. I n Ring, the Court ext ended A pprendi by preve nting leg islatures from constructing statutes so that elements of the crime could serve as enha ncer s and then providing separ ate statutes that allowed the trial court
to m ake fa c tua l fin di ngs for se nte nc ing pu rp os e s. Th e re pe a t vi ole nt o ff e nd e r s ta tut e c le arl y pr e sc ri be s th e se nte nc ing of de fe nd a nts on an enh a nc e d b a sis a s a re su lt o f p ri or

c on vic tio ns

. There fore , the statute does not violate Appre ndi or Ring. See Wyrick, 62 S.W.3d at 761 (holding that the repe at violent of

fende rs statute does not violate the holding in Apprendi). A ccor dingly , we conclude that this iss ue is without merit.

F . V iol e nt

Offen de rSt at us

The De fenda nt contends that he doe s not qua lify as a re peat violent off ender pursuant to the
statut e be c a us e the Sta te didno t pr e se nt the sig ne d judg me nt pr ov ing that th e De fe nd a nt p re vio us ly ple d g uil ty

tw ic e to r ape . T he De fe nd a nt ma de thi s obje c tio n at the se nte nc ing he ari ng , a ndthe Sta te-31-

asserted to the court that the signe d minutes of the court were adequate proof of the convictions. The trial court took judicial notice of its own minut es and f

ound that the minutes were adequate proof of the g uilty plea c onvictions. W e conc lude that these minutes we re a dequate evidenc e upon which the tr ia l c ou rt c ou ld fi nd be y on d a re a so na ble do ub t that the De fe nd a nt ha d the re qu isi te pr e dic a te convictions to be consider ed a r epeat violent of fende r. See Te nn. Code Ann. § 40-35- 120(g ). The Def endant, therefor e, qualifies as a repe at vi olent offe nder, and we c onclude that this issue is without merit.

III. Conclusi on

I n acc ordanc e with the for eg oing r easoning and authorities, the judgme nt of the trial court is AFF I RMED.

___________________________________ ROBERT W. WEDEMEYER, J UDGE