# FILED
March 12, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON FEBRUARY

1999 SESSION

STATE OF TENN ESSEE, ) ) NO. 02C01-9804-CR-00114 Appellee, ) ) SHELBY COUNTY VS. ) ) HON. W. FRED AXLEY, TOMMY NUNLEY, ) JUDGE ) Appellant. ) (Aggravated Rape)

FOR THE APPELLANT : BRETT B. STEIN 236 Adams Avenue Memphis, TN 38103-1922 FOR THE APPEL LEE : JOHN KNOX WALKUP Attorney General and Repor ter J. ROSS DYER Assistant Attorney Gener al Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 WILLIAM L. GIBBONS District Attorney General DAVID B. SHAPIRO Assistant

DistrictAttorney

General Criminal Justice Center 201 Poplar Avenue, Suite 301 Memphis, TN 38103-1947

OPINION FI LED:

AFFIRMED
JOE G. RILEY, JUDGE1 It is the policy of this Court not to identify minor victims of sexual abuse. 2 OPINION A Shelby

County jury c onvict ed defe nda nt, Tommy Nunley, of aggr avated rape, a Class A Fe lony. The trial court sentenced defendant as a Range I standard offenderto the maximum sentence of twenty -five years. Defe ndant raises four issues in this appeal as of r ight: (1) whether

the trial court erred

in allowing into evidence a report prepared by the nurse cl inician who examined the victim; (2) whether

the trial court erred i n allowing the n u rse clinician to testify that the injuri es she observed on the victim were the pr

oduct of forcible penetration; (3) whether

the trial c ou rt erred in allowi ng rebuttal testimony by the vi ctim; and (4) whether th e trial cou rt senten ced def endant p roperly. We find n o r eversible error and AFFIRM the judgment and sent ence of the trial court.

I. FACTS On January 17, 1996, thirteen- year-old L.L. 1 was brought h ome s ick from school byher uncle. When she arrived at the res idence which was s hared by several family members, including the defendant who i s her cousin, L.L. went t o her grandmother’s bedroom to rest. About fifteen minutes later, her grandmother and
severa l family me mbers went to lunch. Only defendant and L.L. remained at the residence. Some minutes later, defendant entered the r oom where L.L. was resting. He rubb ed her breast and vagina with his hand, and pulled down her pants an d underwear. She tried to get away, but defendant p ulled her back by the leg. He then tore his own shorts to reveal his penis and penetrated her. Once finished, defendant remained on top of L.L. for a few moments before “eas[ing] out” and

L.L. saw “whit e slimy stuff and blood” on the sheets. Defendant3

ordered her to go wash. He tried to clean the sheet s with a paper towel, then took the sheets off the bed and put them in the w ashing machine. When defendant took his shower a sh ort time later, L .L. cont acted her mother, Rita Jones, and told her w hat happened. Jones told her to get out of the house. L.L. gathered her things to leave and told defendant she w as going to a friend’s house to study. L.L.’s aunt arrived and took L.L. to see her moth er. Jones called the police, and officers took L.L. to theCity of Memphis Sexual Assault Center where nurse clinician, Elizabeth Thomas, examined her. Thomas’ examination revealed bleedin g f rom the vagina, bruise-like coloration of the skin around the urethra and hymen, a hematoma o n the hymen, two la cerations throu gh the hymenal tissue, and a thi rd laceration in the poster ior fourchette. Based upon this evidence, the juryconvicted defendant of aggrav ated rape
as a result of the u nlawful and fo rcible sexual pene tration causing b odily injur y to the victim. Tenn. Code Ann. § 39-13-502(a)(2).

II. EXAMINATION REPORT Defendant assigns as error the admission into evidence of the clinical report made by Elizabeth

Thomas whil e she examin ed the victim. First,defendant clai ms Thomas used the report solely to refresh her recollecti on. As such, there would be
no reason for the report’s int roduction into evidence. Second, the document contains words indicating the victim was cr iminally assaulted, w

hich defendant claims warrants its

exclusion.
A. Use of Rep

ort by Elizabeth Thomas A report, generally, may be use d by a witness for the purpose of r efreshing his or her recollection. See Tenn. R. Evid. 612. A

writing used in this manner can be entered into evide nce b y the adverse party

. Id . Howe ver, i n the cas

e of a document keptin the normal course of business, the Rules of Evi dence provide a clear-cut exception to the hearsay rule, making such document admi ssible. Tenn. R. Evid. 803(6).4 At trial, the pros ecu tion tendered nurse clinic ian, Elizabeth Thomas, as an expert witness based upon her background, training, and experience. The defense did not object, and the trial court declared her to be an expert. Thomas testified that she examined the victim and simultaneous ly filled out a report. She made notes in her own writing an d signed the report. Over defendant’s ob jection, exact copies of that report were entered into evidence and distri buted to the jury. Thomas rev iewed and explained the report and n otes line by line. It is clear from the record that reports and notes of th e type at issue are
r outinel ymade in the normal course of examining victims at the Sexual Assault Center. Furthermore, it is cl ear that Thomas used the notes as an aid to the jury’s understanding of her testimony, not merely to refresh her recollection. The report and notes, therefore, fall withi n the excep tion of Rule 803(6) and were properly admitted. This issue has no merit.
B. Report’s Content On page two of the examin ation rep ort, there is the statement that L.L. “reportsvaginal assault (penile) and attempted anal assault by 32 [year old] cousin.” Defendant avers that admission of this statement is improper. Tenn. R. Evid. 803(4) pr ovides that “[s]tatements made for purposes of medical diagnosis andtreatment describing. .

. the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis and treatment” are admissible. The statement was properly admitted. See State
v. Stinnett , 958 S.W.2d 329, 332 (Tenn. 1997); State v. McLeod , 937 S.W.2d 867, 869-70 (Tenn. 1996). This issue is without merit.

III. ULTIMATE ISSUE TESTI MONY Nurse Thomas testified about various i njuriesand abnormal conditions she witnessed in L.L. and concluded that the injuries were the result of forcible5

penetration. Defendant argues that the tri al court erred by all owing Nurse Thomas to offer these “ultimate issue” op inions. Tennessee’s evidentiary rules provide that expert witnesses may “testify in the form of an o pinion or otherwise.” Tenn. R. Evid. 702. Further, “[t]estimony in the form of an opinion. . .otherwis e admissible is not objecti on a ble because it embraces an ultimate issue to be decided bythe trier of fact.” Tenn. R. Evid. 704. The trial court allow

ed Thomas to testify as an exper t without objection. During the course of ques tioning, sheoffered the opinion that “the type of injuries that I see like this are not on ly indicative of penetr ation but painful penetration.

. .not consistent with something that is not forcible. . . .” As an expert witness, Thomas is allowedto offer her opinion. That opinion, otherwise admissible, is not objectionable simply because it addresses an ultimate issue in the case. Tenn. R. Ev id. 704. This issue is without merit.

IV. REBUTTAL TESTIMONY Defendant testified that on the morning i n question, he was awakened by

a phone call from a friend. After talking on the phone in h is bedroom, he prepared to go to work. As he left the bedr oom, defendant hear d the fro nt door close. The sound surprised him because the door was normally kept c

lose d and locked. Defenda n t claimed to have seen somebody running away from the house. He found L.L. in the bathroom and asked her w ho left. She res ponded th at nobody left and started to cry. He fur ther testified that L.L. used the w ashing machine, not

him. In response to this testimony, the pr osecution recalled L.L. in rebuttal. Her rebuttal testimony was ver y short and to the point: ( 1) there were two phones in the house, but none in defendant’s room; (2) s he did not have a boyfriend at the time, and there was no boy in the house that day; and (3) she did not use the washing machine. Defendant claims the victim’s rebuttal testimony w

as improper because it did nothing but clarify the prosecuti on’s proof-in-chief. Any c ompetent evi dence that6

explains, directly replies to, or contradicts material evide nce introduced by the defens e or brought out on cross-examination is admissibl e as rebuttal evidence. See State v. Smith , 735 S.W.2d 831, 83 5 (Tenn. Crim . A pp. 1987). The scope of rebuttal lies wit hin the sou nd discretion of the trial c ourt. Id. The trial court's decision regarding t he admis sibility of rebuttal evidence wi ll not be overturned absenta clear abuse of discretion. See State v. Scott , 735 S.W.2d 825, 828 (Tenn. Crim. App. 1987). In light of defendant’s testimony , admission of thevictim’s rebuttal testimony
was proper to directly reply to and contradict the defendant’s claims. This issue is without merit.

V. SENTENCING Defendant asserts that th e twe nty-five year, max imum Range I sentence, imposed by the trial court is excessive. He argues that the trial court improperly failed to give any w

eight to the mitigating

factors developed at

trial and in the presentence report.

A. Standard o f Review This Court’s review

of the sentence imposed by the trial court is de novo with
a presumption of correctness. Tenn.Code Ann. § 40-35-401(d). This presumption is conditioned upon an affirmative sho wing in the rec

ord that the trial judge considered the sentencing principles and all relevant facts and circumstances. State v. Ashby , 823 S.W.2d 166 , 169 (Tenn. 1991). The burden is upon the appealing party

to show that the sentence is improper. Tenn. Code Ann. § 40-35- 401(d ) Sentencing Commission Comments. In conducting our review, we are required, pursuant to Tenn. Code Ann. § 40-35- 210, to consider the followi ng factors in sent encing: (1) [t]he evidence, if any, recei ved at the trial and the se ntencing hearing; (2) [t]he presentence report; (3) [t]he princ iples ofsentencing and arguments as to sentencing al ter natives; (4) [t]he natur e and characteristics of the criminal cond u ct involved; (5) [e]vidence and information offered by the parties on theenhancement and mitigating factors in §§ 40-35-113 and 40-35-114; and (6) [a]ny statem ent the7 defendant wishes to make in the d efendant ’s own behalf about sentencing. Tenn. Code Ann. § 40-35-401(d) Sent encing Commission Comments.

B. Trial Court’s Fin dings The trial judge found five enhanc ement factors applicable to its det ermination of defendant’s sentence: (1) the victim was particularly vulnerable because of her age; (2) the d efendan t treated the victim w ith exceptional cruelt

y during the commission of the offense; (3) the off ense involved a victim and was committed to gratify defendant’s desire for pleasure or excitement;(4) during the commissi on of
a felony, defendant willfully inflicted bodily injury upon the victim; and(5) defendant abused a position of public or pri vate trust. See

Tenn. Code Ann. § 40-35-114(4), (5), (7), (12 ), (15). C onversely, the trial court declined to apply any factors in mitigation, despite its acknowledgment that defendant had no criminal history.

C. Enhancement Factor s Although defendant does not contest t he application of any of the enhan cement factors, we note that two enhancement factors were improperly applied. The facts are insufficient to establish exceptional cruelty under Tenn. Code Ann. § 40- 35-114(5 ). See State v. Williams , 920 S.W.2d 247, 259 (Tenn. Crim. App. 1995). Furthermore, the trial court impro perly applied the enhancement factor for willful infliction of bodily inj ury upon a victim in the commission of a felony. Tenn. Code Ann. § 40-35-114(12). Since the state relied upon L.L.’s physical injuries as the basis for the conviction under Tenn. Code Ann. § 39-13-502(a)(2), those same injuries cannot be used to enhance his sentence. Tenn. Code Ann. § 40-35-114; State v. Poole , 945 S.W.2d 93, 95 (T enn. 1997).
D. Mitigating Fact

ors Defendant claims that there were several factors developed at trial and in the pre-sentence report that should have mitigat ed his sentence: defendant graduated8

from high school; he had no cri minal history; and he had an exemplarywork history from the time of his graduation, i ncluding twelve years of military s ervice. The trial court acknowledged defendant’s lack of criminalhistory, but did not find any specific, applicabl e mitigating factors. Tenn. Code Ann. § 40-35-113. The refusal to mitigate the sentence based upon these factors was not erroneous. See generally State v. Robinson , 971 S.W.2d 30, 48 (T enn. Crim. App. 1997).

E. Sentence In conclusion, the trial c ourt prop erly fo und and applied more than one enhancementfactor, and no mitigatin g factors. The me re fact that additional enhancement factors were improperly applied does not automatically result in the reduction of defendant’s sentence. See State v. Lavender , 967 S.W.2d 803, 809 (Tenn. 1998). Under our de novo review, we decline to

disturb d efenda nt’s twent yfive year sentence.

VI. CONCLUSION Based upon the fore going, we AFFIRM the judgment and sentence imposed by the trial court.

____________________________ JOE G. RILEY, JUDGE

CONCUR:9

____________________________ JOHN H. PEAY

, JUDGE

____________________________ JAMES C. BEA

SLEY, SR., SPECIAL JUDGE