# FILED

October 24, 1997 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE AUGUST 1997 SESSIO N STATE OF TENN ESSEE ) C.C.A. No. 01 C01-9607-CR-00320 ) ) SUMNER COUNTY VS. ) ) HON. JANE WHEATCRAFT STANLEY LA

WSON ) JUDGE ) ) (Incest)

FOR THE APPELLANT: FOR THE APPEL LEE: JOHN E. HERBISON JOHN KNOX WALKUP Attorney at Law Attorney General & Repor ter 2016 Eight Avenue South Nashville, Tennessee 37204 DARYL J. BRAND Assistant Attorney Gener al 450 James Robertson Parkwa y Nashville, Tennessee 37243 SALLIE WADE BROWN Assistant District A

ttorney General 113 West Main Street Gallitin, Tennessee, 37066

OPINION FILED:___________________

AFFIRMED

JOE H. WALKER, III Sp. JUDGE2 OPINION The defendant appeals a jury ver dict finding him guilty

of twenty-five counts of incest. The defendant was sentenc ed to seven years on each count, with counts one through ten to be served consecutively, and the others to be run concurrently. The jury assessed fines of ten thou sand dol lars per co unt. The court red uced the fines to two thousand dollars per count.

The defendant presents the following issues for consideration: 1. Whether the proof was insufficient as a matter of law to sustain a conv iction, in that the defendant was conv icted on the uncorroborated te stimony of an accomplice; and whether the trial co urt erred through its instructions by submit ting to the jury the question of whether the v ictim was an accomplic e so as to require corr

oboration of her testimo ny. 2. Whether t he admis

sion of a redacte d versi on of an au dio tape record ing of a conversation between the defendant and the victim was error. 3. Whether the trial court erroneously permitte d the victim to testify from notes. 4. Whether the trial court erred by allowing a statement of the d efendant to be submitt ed to the jury. 5. Whether the trial court erroneously excluded cross examinat ion of the victim concerning certain prior statements. 6. Whether t he tria l court erroneo usly pe rmitted

the jur y to tak e transc ripts o

f a tape recorded conversati on between the defendant and victi m into the jury room duri ng deliberations. 7. Whether the trial court erroneously ordered consecutive sent encing as to ten counts of the indictment; and whether this was a harsher eff ective sentence on retrial, violating due process.3 Procedural Background The defendant was indicted on tw enty-six counts of inc

est, alleging that he sexually penetrated hi s adopted daughter, on twenty -six specified dates. The c ase was tried, with the state di smissing one count of the indic tment. The jury found the defendant guilty on the remaini ng twenty-five c ounts. After a sentencing hear ing, the defendant was sentenced to six years in prison on eac h count, with ten of the sentenc es to be se rved conse cutively, a nd the ot hers to ru n concurr ently. The def endant f iled a pet ition fo r post-co nviction r elief, a lleging ine ffecti ve assistance of counsel. After a hear ing, the petition was sustained, and the convicti ons were set aside, and the defendant was granted a new trial. The defendant moved to suppress certai n statements he made in a tape recorded conversation w ith the victim, and after an e videntiary hearing , the motion was denied, with the court pr oposing certain redacti ons. As redacted, the tape and transcription of the conver sation were admitted into evidence at trial, and s ubmitted to the jury. The jury at re-trial

found the defendant guilty on all twenty five counts of incest.

Factual Background

The defendant was the step father of the v ictim, and adopted her when s he was four years old. The acts of incest alleged in the indictment occurred when the victim was fifteen years of age, and i n the ninth grade. The victim lived w

ith her mother, the defendant, and her y ounger brother, who was the son of the victi m’s mother and the defendant. The family l ived in a double wide trailer on fourtee n acres in Sumner Co unty. At the time of most of the incidents of inc est, the victim’s mother would not be at home. The victim’s mother worked at a store in Nashville, and usually spent the entire weekend in Nashvil le, staying at her ow n mother’s home. Most of the acts o f incest4

occurred during those w eekends. One act (count 22) oc curred while the mother was at home but asleep. The younger brother w as usually at home, but sle pt in another room of the trailer

. The defendant would block the doorw ays to prevent the brother from observing the sexual activities . On one of the occasions the brothe r was outside playi ng, and the defendant locked him out of the trailer. On another occasion, the brother walked into the defendant’s bedroom during anal incest of the victim, and the defendant tried to cover up the victim so that the brother would not see her. At the trial, the victim described in detail the s exual activities that occurred on each of the twenty-five d ates specified in the indictment.She testified that she had independent r

ecollectio n of the event s, although

she used note

s formulated fr

om a calender to help keep straight which events occurred on which precise dates. The victim related that on s everal occasions she w ould watch x-rated v

ideos with the defendant, and the defendant would hav e the victim act out fantasies for him. On certain occasions the defendant w ould argue with the v

ictim about playing the

stereo too loudly, or going

out with boys, or meet ing friends. After those arg uments the defendant wou ld engage i n incest with the vi ctim. The victim recounted the numerous instances, by specific date, on which the defendant sexually penetrated her vaginally, orally, and anally.On at least one occasion the

sexual intercourse w

as extremel

y painful to

the victi m. The victim requested that the defendant stop ha ving sex with her and simply act as her “daddy,” and he ag reed. Shortly after that pr omise, they were wrestling on the bed and the defendant began feeling her and then engaged her in sex . On several other occasions the vic tim discussed with the defendant stopping the sexual encount ers, but t he relati onship co ntinued sexually. In March, 1993, because the v ictim was late for her pe riod, the defendant purchased an over-the-co unter pregnancy test k it. When the results were negativ e, the defendant celebrated with inces t on the victim. Shortl

y after that, the victi m told her guidance co unselor in h igh school about the sex

with her a

doptive fath er. The vic tim was then interview

ed by a sexual abuse couns elor from the Tennessee Department of5

Human Services. The complai nts were reported to a det ective with the Sumner County Sheriff’s Department, who requested that the victim wear a concealed microph one while speaking with her adoptive father. The victim c alled the defendant, and arranged a time and place for a meeting. At the deputy’s suggesti on, the victim told the defendant that she had run away, but that they needed to meet and talk. They arranged to meet at a local restaurant. The deputies were present at the restaurant, and monitored and r ecorded the conversation between th e victim and the defendant. After hear ing the conversation through the concealed microph one, the deputies confronted the defendant, and r ead him the Miranda

warnings, and trans ported him to the sheriff’s department.The defendant was again advised of his Miranda warnings, and signed a waiver of those warnings. The defendant w as asked if he knew why they wanted to talk to him and he answered “a problem inv olving my daughter.” The detective asked the de fendant if he knew what

the allega

tions wer

e, and the defend ant responded , I believ e it’s about

me molesting or raping my daughter. The defendant then request ed an attorney, and the questioning ended.

Sufficiency of the Proof - A

ccomplice

The defendant maintains that th e evidence is insufficient as a matter of law in that the defendant was convic ted on the uncorroborated testi mony of an accomplice. The defendant further submits that the tri al court erred through i ts instructions by submitting to the jury

the question of whether the victim was an accompl ice so as to require co rroborat ion of he r testimo ny. Accomplice An accomplice is one who k nowingly, vol untarily, and with common intent unites with the principal offender i n the commission of a crime. Conner v. State , 531 S.W.2d 119 (Tenn. Crim. App. 1975). The tes t is whether or not the alleged accomplice can be indicted for the offense. If, howeve r, the witnesses’ par ticipation in the crime i s the result of force, coercion, duress, or undue influe nce so that the participant does not act6

voluntarily, w

ith the same intent as the princ ipal, then the witness i s not an accomplice. Henley v. State , 489 S.W.2d 53 (Tenn. Crim. App. 1972); State v. Green , 915 S.W.2d 827 (Tenn. Crim. App. 1995). If the offense of incest is committed without the victim’s consent, then corroboration of the vict im’s testimony is not r equired. Scott v. State , 207 Tenn. 151, 338 S.W.2d 581 (196 0). This court finds that there w as sufficient evidence in the r ecord to submit to the jury the question w

hether the victim consented,and thus was an accomplice

. The victim testified that she wanted “a daddy,” and the defendant would not be that for her. She felt hurt by all of the acts of incest, whi ch she described in grea t detail. She wanted him to be her dad ins tead of doing what he did to her. She and her father had heated discussions about the s exual relations he w

as engaging her in. Her father had told her to perform these acts, and began to take it for gr anted. The victim described in detail each incident cov ered by each separate count of the indictment. Several of the incidents occurred after the defendant became mad at her. In the incident set out i n count two, the defendant accused her of playing the stereo too loud, got mad, and beg an fighting with her.He tied a door to the bedroom of the victim’s brother, the only other person in the house. He put a chair ag ainst the door, and engaged her in incest activities. In the incident alleged in count four of the indictment, he got x-rated movies for the victim to watch, and performed anal sex on the v ictim. She testified that it hurt real bad. She said something at that time about it. In the incident alleged in count five of the indictment, the de fendant got mad when she had gone out with friends. He yelled at her, an d then had sex with h er using a mirror. On another occasion her father bought her a douche, an d told her to hide it from her mother. On one occasion, s he missed her period, and her father bought a pregnancy test. He w

as afraid she might be pregna nt with his child. On another occasion, the vi ctim had gone out with her friend, Greg, and the defendant got mad at her, and told her to tell anyone who ask ed her out that she7

already had a boyfriend. He covered the windows with towels before engaging her in incest. In the incident set out in count ten, the defendant rented x-rated movies and made her act out parts of the vi deo. In the incid ent set out i n count elev en, the vic

tim had misse

d a 10:00 p.m. curfew, and the defendant became angry, and was not okay until after sex with the victim. In the incident alleged in count twelve, the defendant made the victim put on her mother’s lingerie, and the defendant ripped it off of her before engagi ng her in incest. In the incident alleged in count thirteen, the defend ant made her dance while wearing linger

ie before engaging her i n incest. In the incident alleged in count fifteen, the defendant would not let her go out with her friend Misty, and told her she had to stay home; that he was going to try strawberry jel l on her while engag ing her in incest. In the incident set out in count seventeen, the victim testified that the acts of incest hurt real bad, and she screamed out. The defendant continued to per form the act anyway. In the incident set out in count eighteen, the victim w

as on her period, and the defendant did not want intercour se. He wanted anal inces t, and made her put a towel on the bed. The victim’s br other walked in and the defendant got mad and screamed at him. The defendant was on top of her, and c overed her up. The brother s tarted crying. In the incident set out in count twenty, the defendant was looking out the door to the trailer at her brother while he was outside playing. He required the victim to perform oral sex on him, the n told he r that she could go ou t and pla y. In the incident set out in count twenty-four of the indictment, the victim had asked the defendant if they could stop doing all this, and if he would just be her daddy. They began wrestling on the bed, and the defendant started touching her. The defendant then engaged her in incest

.8

The victim testified that she did not tell anyone because s he was “scared.” She did not want to take her br other’s father away from hi m, and she did not want to hurt her mother. From these circumstances, as well as the position of trust occupied by a parent with respect to a daughter, and the nature of the sexual acts performed, there was sufficient evidence for a reasonabl e trier of fact to find or infer that the victim was not a consenting participant, a nd was thus not an accomplic e. The tria l court cor rectly sub mitted t his issue to the jur y. Corroboration In State v. Delph , slip opinion number 257 (C t. Crim. App. 1986), the appell ant was convicted of inces t on the testimony of his step-daughter, w hich was corroborated by the appellant’s confession. A confession must be considered in connection with all the other evidence to establ ish the defendant’s guilt or innocence. The victim/accomplice’s testimony was corr oborated by the appellant’s confession, and the appellant’s confession was corroborated by the v

ictim/accomplice’s testi mony. Thus while neither her testimony standing alone nor the confession standing alone w ould be sufficient to establish that the appellant h ad committed a crime, these bits of evidence taken together can establis h the crime. In this case, the taped conversation between the defend ant and victim corroborated numerous elements and details of the victim’s testimony. The conversation referred to i ncidences in which x -rated videos wer

e watched, when they acted out what they w

atched. The defendant apologized to the victim. The defendant explained that they w

ere performing these acts beca use he kept telling himsel f that he loved the victim. H e kept living a different l ife because there had been things i n his life, in his younger life, that he never got to experience, and every ti me he got involved w ith someone it was always someone else lying about how they felt about him; and “that’s no excuse...I just w

anted to...for one time...experi ence a loving relati onship.” The defendant acknowledged prior discussions when they had talked about stopping it,and that he had said that they w ere going to stop it. Immediately after discussin g the defendant’s promises to stop the sex ual activities, the v

ictim asked what happened9

Saturday. The defendant replied that was his mistake. Th e defendant said “I didn’t mean to do that, honey...there were things...that you had been saying to me f or the last week or so...and I thought you were throw ing me signals...I mis understood you.” When the victim would ask

why the defendant had sex w ith her, he would apolog ize. When the victim would cr

y that he had hurt her, he w ould acknowledge that fact. When the victim asked him to promi se that we’ll never have to have sex ag ain, he answered no,

never. The statements made by the defendant shortl y after his arrest indi cating that he knew the detectives w

anted to ask him about allegati ons about “me molesting and raping my daughter,”

support an inference that could be made by the trier of fact that such conduct had occurred. The appellate courts have addr essed the nature, quality , and sufficiency of the evidence required to c

orroborate the testimony of an a ccomplice on numerous occasions. In Sherrill v. State , 204 Tenn. 427, 321 S.W.2d 811 (1959), the supre me court said: The rule of corroboration as appl ied and used in this State is that there must be some evidence independent of the testi mony of the accomplice. The corroborating evide nce must connect, or tend to connec t the defendant with the commission of the crime charg ed; and, furthermore, the tendency of the corroborative evi dence to connect the defendant must be independent of any testimony of the accomplice. The c orroborative eviden ce must of its own force, independently of the accomplice’ s testimony, tend to connect the defendant with the commission of the crime. This corroborative ev

idence can be direct evi dence, or circumstantial. The corroboration need not of itself be adequate to support a convi ction, but it must be sufficient to meet the requirements of the rule and it is sufficient i f it fairly and legitimately tends to connect the defendant with the commis sion of the crime charged. Sherrill , 204 Tenn. at 435; 321 S.W.2d at 815. The evidence must confirm in some manner that (a) a crime has been committed and (b) the accused committed the crime. State v. Boulton , 214 Tenn. 94, 99; 377 S.W.2d 936, 939 (Tenn. 1964). The evidence corroborating the testimony of an accomplice ma y consist of direct evidence, circumstantial evidence, or a combination of direct and circumstantial evidence. The quantum of evidence necessary to corroborate an accom plice’s10

testimony is not requ ired to be sufficient enough to sup port the accused’s convi ction independent of the accomplice’s test imony. State v. Sparks , 727 S.W.2d 480, 483 (Tenn. 1987). Nor is it required to extend to every portion of the accomplice’s testimony. Stanley v. State , 189 Tenn. 110, 116-17, 222 S .W.2d 384, 387 (1949) . To the contrary, only slight circumstances are required to corroborate an accomplice’s testimony. Sparks 727 S.W.2d at 483; Stanley , 189 Tenn. at 116-17, 222 S.W.2d at 387; Bolton v. State , 591 S.W.2d 446, 448 (Tenn. Crim. App.), per. app. denied (Tenn. 1979). The cor

roborating

evidence i s sufficient i f it connects

the accused w

ith the cri me in question. Stanley v. State , 189 Tenn. at 117, 222 S.W.2d at 387. In this case the defendant acknowledged in his statemen ts a continuing course of conduct to c

orroborate the allegat ions of the v ictim. In State v. McKnight , 900 S.W.2d 36 (Ct. Crim. App. 19 94), a victim/accomplice who was sexuall

y abused by the defendant gav e a detailed description of the defendant’s acts against him. Thi s was corroborated by other victims’ testi mony describing similar patterns of conduct. The entire course of con duct was held to furnish sufficient corroboration, ev en though the testimony of the other victims did not descr

ibe the specific incidents of wh ich the victim/accompli ce complained. In Bethany v. State , 565 S.W.2d 900 (Tenn . Crim. App. 1978), the t estimony of a non-accomplice witness that he saw the defendant commit four of the sex offenses against the victim w

as corroborative ev

idence from which a jury could find that the defendant committed two other offenses in t he same pattern. The defendant in this case corrobor ated some specific incidences t estified to by the victim. This corroboration was in the taped conversation heard by the jury. He also referred to a continuing patt ern of incestuous conduct. His own statements corroborated the existenc e of a sexual relationship, continuing through the i ndictment period and up to shortly before his arrest. The defendant’s statement to the police upon his arrest, further corr oborated these illegal acts. There was sufficient evidenc e before the jury as the tri er of fact to determine that the victim was not an accomplice, and therefore no corr oboration of her testimony11

would be required. Also, there was sufficient evidence before the jury as the trier of fact to determine that her testimony was corroborated if the v ictim was an accomplic e. This issue is without merit.

Redacted Version of a Taped Conversation

The defendant filed a motion to suppress the t ape-recorded conversati on with the victim. After a heari ng, the trial court sug gested a redacted versi on of the taped conversation, and allow ed the state to admit the redacted v ersion as a trial ex

hibit, and play the re dacted ve rsion of the tape recordin g for the j ury. The defendant alleges that the admissi on of the tape recording even as redacted, injected “other c rime” evidence into the t rial in violation o f Tenn. R. Evid. 404(b). The court has rev iewed the tape and transcr ipt presented the jury, and finds that as redacted it did not i nclude any explicit references to bad acts of the defendant before the indictment period. The defendant complains that though pri or bad acts were redact ed from the statement, the statement may have included some statements by the defendant responding to the excis ed references by the vic tim to prior bad acts. How ever, the bad acts were unknown to the jury, and the defendant’s r esponses to the redacted prior bad acts also referred to a conti nuing course of sexual co nduct between the defendant and victim, occurring

during the indictment peri od. There were other matters discussed on the tape including the x -rated videos, the brok

en promises to stop having sex, the one particular Saturday ni ght episode, which w ere separate from the redacted port ions of the tape. The court finds that the trial c ourt was very conscientious in efforts to redac t the statement and tape. The defendant had been granted a new trial due to r eferences to prior bad acts, and the tri al court was very careful during the motion hear ing, and during the trial itself, to prohi bit references to prior bad ac ts of the defendant. The court having found that the tape and transcript were properly redacted, also finds that the admission of the redacted tape did not violate Rul e 403, and did not12

violate the constitution al due process guarantees of the Fourteenth Amendment. It is within the discretion of the trial court to determine whether to admit evidence of a tape or transcript of the tape, and that discretion wil l not be disturbed absent abuse. See State v. Elrod , 721 S.W.2d 820, 823 (Tenn.Crim. App. 1986). The tri al court made a finding that the proba tive value of the tape as r edacted outweighed the danger of unfair prejudice. The trial court did not err in admitting the tape recor ding and allowing the jury to use the transcript. See State v. Smith 868 S.W.2d 561 (Ten n. 1993).

Victim’s Use of Written Notes to Refresh Her Recollection

The defendant alleges that the trial court erroneously per

mitted the victim to testify from notes. The trial court had an extensive jury out hearing and determined that the victim had independent recollection. The court allowed the vi ctim to refer to the notes to refresh her memory and keep str aight the dates on which particular events occ

urred. The general rule is that a witness may refer to not es to refresh her recollec tion. State v. Lingrel , 692 S.W.2d 41 (Tenn. Crim. App. 1985). The trial court has wide discretionary authori

ty over the proprie

ty, scope, manner and control of the examination of witnesses. State v. Carpenter , 773 S.W.2d 1 (Tenn . Crim. App. 1989). The defendant complains that th e notes should not have been used as they did not fall within Rule 803( 5) of the Tennessee Rules of Evidenc e. Rule 803(5) applies to a writing show

n to have been made or adopted by the witness when the matt er was fresh in the witness’s memory. Recorded recollection is used in lieu of a witness’ testimony when that w

itness cannot recall the ev ent in any meaningful way. Neil P. Cohen et. al., Tennessee Law of Evidence § 803(5).1 (3d ed. 1995). A writing used to refresh one’s memory is not a hearsay exception, but rather a means to facilitate a witnes s’ testimony when he or she cannot completely remember the details of an event. See Tenn. R. Evid. 612. When a witness’ memor y is refreshed,13

the adverse party may inspect the writing, cross-examine the witness and introduce portions into evidence. Tenn. R. Evid. 612. In this case the victim testified she had independent presen t recollection of all key events, and recal led the specific dates when reminded by her notes w hich she had derived from the calendar. H er use of notes fell under Tenn. R. Ev id. 612. The Advisory Commissi on Comments to Rule 612 sugges t guidelines by w

hich a witness may refresh her memory: “The direct exa miner should lay a foundation for necessity, show the witness the writ ing, take back the wr iting, and ask the wi

tness to testify from refreshed memory.” The witness established that the notes would help her refresh her memory of the dates of the events to which she was testifying. Because they were not taken back, there appears to have been er ror by the manner in w

hich the notes were used. See State v. Dishman , 9 15S. W.2 d 4 58 (Ten n. Cr .A pp . 1 99 5) . We believe, however,any error was har mless. In State v. Elrod, 721 S.W.2d 820 (Ten n.Cr.App. 1986), a State’s witness testified and related the substanc e of his conversation w ith the defendant. He used the transcripts of the tapes to r efresh his recollection. The Court held it is the duty and obligation of the trial j udge to control the method and manner of the submission of evidence to the jury, and he has wide latitude and discretion in determining the nature of the evidence which they are to consider. This dis cretion will not be d isturbed in the absence of some indication of abuse. The propriety, scope, and control of the examination of wi tnesses rest within the sound discretion of the trial court; and this Court w ill not interfere with the exercise of this discretion unless it clearly appears upon the face of the record tha t the trial court abused its discretion w hen ruling. State v. Pendergrass , 795 S.W.2d 150 (Tenn.Cr.App. 1989). In this case, we cannot s ay that the trial judg e abused her discretion. Courts are traditionally given broad discretion in such cases, and witnesses are not held to perfection. A witness may be deemed to testify from memory, hence through present recollec tion refreshed, if he or she refer s to notes for details but remembers the general facts. C ohen et. al. Tennessee Law of Evidence , Sec. 612.1, p.14

401 (3d ed. 199 5), citing U.S. v. Rinke , 778 F.2d 581 (10th Cir. 1985), where a witness referred to notes of telephone calls ; Doty v. Elias , 733 F.2d 720 (1984), wher e witnesses referred to not es of exact dates they w orked at a restaurant. This issue is without merit.

Defendant’s Statement s Made After Arrest

After the defendant was arrested, he was transported to the s heriff’s department where a detective ask

ed him if he knew the nature of the al legations against him. The defendant responded “I believe it’s about me molesting or r aping my daughter.” The defendant acknowledges that he was advised of his Miranda rights prior to making the statement. How ever, he contends that the st atement should have been suppressed, alleging that he was detained an unnecess ary length of time before being taken before a magistrate. The defen dant was given his Miranda warnings when he was arrested, and wa

s promptly transported t o the sheriff’s department, wher e Miranda warnings were again given to the defendant. The defendant signed a waive r form, then made the stateme nts in que stion. Th ose state ments were made app roximate ly fortyfive minutes after his arres t. He then stated he wanted t o consult with an attorne y, and the questioning ceased. Sometime before 9:00 p.m., the night cour t commissioner approved the affidavit of complaint prepared by the detectiv e, and an arrest warrant was issued. The defendant was detained no more than two and half hours before a probable cause determination w as made as to his arrest. When a suspect is detained without being taken before a neutral person w ho explains the process, issues warnings, and assures that constitutional rights are honored, the environment can be i ntimidating, and often geared to producing in the accused a compulsion to confess. Nevertheless, most courts have not adopted a rule of exclusion, but instead r equire exclusion of a c

onfession given during

a period of unnecessary delay only if an examination of the totality of the circumstances reveals that the statement was not v oluntarily giv

en. State v. Huddleston , 924 S.W.2d 666 (Tenn. 1996).15

A detention is unreasonable if “for the purpose of gathering additional evidence to justify the arrest”. County of Riverside v. McLaughlin , 500 U.S. 44, 56; 111 S.Ct. 1661; 114 L.Ed.2d 49 (1991). In this case there was not a significant delay. The delay was not for the purpose of gathering additional ev idence to justify the arr est. The defendant had been arrested based on the allegations of the victim, and the conversation which had been overheard by the law enforcement officers between the victim and the defendant. The defendant was advised of his Miranda rights, and give n an opportunity to make a stat ement. The defendant has made no sho wing that the dete ctives purposely de layed obtaining a probable cause determination. There was no unconstitu tional or illegal delay. This issue is without meri

t.

Cross Examination of the Victim

The defendant alleges that the trial court erroneou sly precluded inquiry on cross examination of the victim c oncerning allegations

that she made false statements to law enforcement authorities inves tigating an incident al leged to have occurred when the victim was eight years old, some seve n years before the incidents alleged in the indictment. In a jury out hearing during cross examination of the victim, the defense couns el proposed to asked the victi m about the incident, to examine the witness on the issue of credibility. Defense c

ounsel proposed in the jury out hearing to the trial

judge that he would desire to cross

examine the victim in

front of the jury concerning the fact that she was a vic

tim of a crime

years befor

e the incide nts alleged in this in dictment. Tha t crime was investigated and a Mr. Maybee was prosecuted by authoriti es in Davidson County concerning that crime. The victim made claim that Jas on Mays was present during one of the crimes perpetrated on her, and she told law enforcement that Jason Mays had been killed in a plane cras h, and that was not true. The c ourt did not allow that l ine of questioning.16

Tenn. R. Evid. 608 provides that, absent a showing of necessity to a fair determination of the case, evidence of cond uct committed while the witness was a juvenile is generally not admissible. The court may however allow evidence of such conduct of a witness if the court is satisfied that the adm ission of the evidence is necessary for a fair determination in the proceeding. In this case, the court had a jury out hearing, and determined that the proposed cross examinat ion would not lead to a fair determination in the cri minal proceeding. The trial court determined that the ris k of delving into alleg ations of a prior rape by s omeone else when the vict im was only about eight years old out w

eighed any probative value of a statement she alleg edly made to investigators. The propriety, scope, manner and control of the cross exa mination of witnesses is a matter within the discretion of the trial judge, which will not be interfered with in absence of an abuse thereof. State v. Pendergrass , 795 S.W.2d 150, 156 (Tenn. Crim. App. 1989). Appellate courts may not disturb discretionary limitations on cross examination absent a clear a nd plain abuse of discretion. State v. Richardson , 875 S.W.2d 671, 675 (T enn. Crim. App. 1993), perm. to app. denied. (Te nn. 1994). We conclude that the trial court did not abus e discretion, and properly refused to allow defense counsel to cross examine the victim about statements she allegedly made during an investigation of a rape when she was eight years old.

Exhibits to the Jury Room

The defendant alleges that the trial court erred in permitti ng the jury to take the transcript of the taped conversation between the defe ndant and victim into the jury room during deliberations. Tennessee Rules of Criminal Pr ocedure 30.1 states that the jur y shall take to the jury room all exhi bits received in ev idence for the jury’s ex

amination during delibera tions, un less good cause is sh own for no t taking an exhibit to the jury. The trial court properly instructed the jury to consider the transcript as an aid in understanding the tape, but to l isten to the tape itself as the pr imary evidence. The17

defendant submits the transcript should not have been taken to the jury room because the tape, and not the transcript, is the evidence in this case. However both were marked as exhibits. The rule requiring exhibits to go back to the jury room is mandatory unless the judge determines that an exhibit should not be subm itted to the jury. In this case, the defendant has failed to sho w that the judge committed error. This issue is without merit.

Consecutive Senten ces

The def endant a lleges tha t the tria l court err ed by orde ring conse cutive sentences, and that the defendan t received a harsher effective sentence on re-trial, violating due process. The tria l court sen tenced t he defe ndant to seven years on each o f the twen tyfive convictions, w

ith ten of those sentences to be ser ved consecutively , and the remaind er concur rently. At the sentencing hearing, the trial court heard testimony from the victim concerning her hospitali zations, suicide attempts , and drug problems as a res ult of the continued actions of the defendant. The trial court determined that the defend ant had multiple criminal convictions, and should be sentenced as a Range II offe nder. Incest is a Class C felony (TENN. CODE ANN. 39-15-302), and the minimum sentence for Range II o ffender is six years. The trial court found there w ere no mitigating factors , and that there was an enhancement factor that applied to this case, that the offense involv ed a victim and was committed to gratify the defendant’s desire fo r pleasure or excitement. The trial court sentenced the defendant to one year abov e the minimum sentence for each count. The trial court then determined that TENN. CODE ANN. 40-3 5-115(b)(5) applied to this case. That statute prov ides that consecutive sent encing may be ordered if the defendant

is conv icted of two or more sta

tutory offenses involv

ing sex ual abuse of a minor with consideration of the aggravating circumstances arising from the relationship between the defendant and the victim, the time span of the defendant’s undetected18

sexual activity, the nature and scope of the sexual acts and extent of the residual, physical and mental dama ge to the victim. There was testimony that the defendant began having sex ual relations with th e victim when she w

as only ten years ol d. There had been a few sexual encounters even earlier. The defendant had indicated on the unredacted version of the taped conversation between th e defendant and victim that he thoug ht he began having sex with the victim w

hen he got out of prison in 1986, w hich would make the vi ctim nine years of age. The defendant was convicted of twenty- five statutory offenses inv olving sexual abuse of his daughter when she was fifteen year s of age. The time span of the defendant’s undetected sexual acti vity spanned sever

al years. The nature and sc ope of the sexual acts cover ed a wide range of sexual activity, incl uding intercourse, oral sex, anal sex, dig ital penetration, watchi ng x-rated videos and acting out, requir

ing the victim to dance, and rippi ng off her garments. The extent o f the residual, physical and mental damage to the victim included attempted suicide m ore than once, the victim being adm itted to V anderbi lt Hospita l three tim es, and t he victim d evelopin g a heavy drug abus e problem . The victi m testif ied that she did no t like hers elf. She used to lo ve her father, and now she hated him because of what he had done to her. Because of the aggravating circumstances, TENN. COD E ANN. 40-35-115(b)(5) properly applies as a basis for consecutive sent encing. See State v. Woodcock , 922 S.W.2d 904 (Tenn . Crim App. 1995). The court is further requir ed to determine whether the c onsecutive sentences (1) are reasonably related to the severity of the offenses comm itted; (2) served to protect the public from further criminal conduct by the offender; and (3) ar e congruent with general principles of sent encing. State v. Wilkerson , 905 S.W.2d 933, 939 (Tenn. 1995). The defendant is an offender who has a prior record of criminal activ ity. He was sentenced as a Range II offender. Hi s criminal acts in thi s case were extensi ve. The trial court determined that consecutive sentences are reasonably related to the severity of the offenses committed, and were cong ruent with the general principles of sentencing, and were nec essary to protect the publ ic from further criminal conduc t by19

the offender. The defendant persisted in inces tuous activities w

ith his adopted daughter after promising to cease those activities. The length of time over which these activities continued evidenced a long term pattern of behavior presenting a risk of fu ture repetition. The court properly imposed consecutive sentences. The defendant further alleges that th e sentences were more severe on re-trial, and that the im position of a h arsher sentenc e is unconstitut ional, citing North Carolina v. Pearce , 395 U.S. 812, 89 S.Ct. 2072, 23 L. Ed.2d 656 (1969). In Pearce , the United States Supreme Court held that a harsher sentence af ter a new trial raises a presump tion of “ judicial vindictive ness,” whi ch may be o vercome b y an affi rmative showing on the record of the reasons for the harsher sentenc e. Id at 725-26; See also State v. Gilliam , 901 S.W.2d 385, 392 (Tenn. 1995). In resentencing a defendant, the tr ial court may justify

an increased sentence by affirmatively identifyi ng relevant evidenc e occurring both before and after the original sentencing proceedings. Wasman v. United States , 468 U.S. 559, 569, 104 S.Ct. 3217, 82 L.Ed.2d 424 (1984). State v. Coggins , 1995 Tenn. Crim. App. LEXIS 886 (Ct.Crim.App. 1995). The sentencing judge at re- trial was the same judg e who granted post-conv iction relief, and ordered the new t rial. The record rev eals that the trial judg e reviewed the transcript of the sentencing hearing in the prior p roceedings, and found that the tri al court did not address enhancement facto rs. She considered testimony heard at trial, the pre-sentence report, the t estimony heard at sentencing hearing, and determined that there were no mitig ating factors but an enhancement factor to apply. The trial judge then e nhanced the se ntence one y ear beyond the minimum. The victim testified at the se ntencing hearing on re- trial, but had not testified at the original sentencing hearing. Testimony included the effect the activities had on her which required hospi

talization, and whic

h resulted in suicide att empts and drug problems. The defendant began sexual activities on the v

ictim when she was approximately ten y

ears of age, telling her

that he needed to show her w hat real love is. He told her that it was not wrong for him to show her the right way and not the way it20

had happened with her in the rape. So he was just going to start showing her how it was supposed to be done in the r ight way. He beg an a steady pattern of sexual abuse. As she grew older s he realized that he was supposed to be there for her, to k eep her safe, but not to have sex with her. She grew to hate him. She has required psychiatric treatment. The pre-sent

ence report indicates t hat the defendant was on par ole at the ti me these offenses occurred. To assure that vindictiv eness plays no part, the c ourt in Pearce held that it is presumed that a more severe s entence after re-trial v

iolates due process unless the reasons for imposing the gr eater sentence affirmatively appear and are based upon objective information in the record. Id at 726. In Alabama v. Smith , 490 U.S. 794, 104 L.Ed.2d 865, 109 S.Ct. 22 01 (1989), the c ourt li mited th e applic

ation of Pearce to those situations in which there is a reasonable likel ihood that the increase in sent ence is the product of actual vindicti veness on the part of the sentenci ng authority. 490 U.S. at 799. State v. Kendricks , 1995 Tenn. Crim. App. LEXIS 268 (Ct. Crim. App. 1995). In this case there has been no showing of a reasonable likelihood that the increase in sentence is the product of actual vindictiveness. Ther e is objective information in the record for imposing the g reater sentence on re-tri al. This issue is wi thout merit.21

We therefore AFFIRM the judgment of the trial court.

______________________________ JUDGE

CONCUR:

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