# FILED September 17, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE MAY SESSION, 1998 STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9612- CC-00524 ) Appellee/Cross-Appellant, ) ) ) RUTHERFORD COU NTY VS. ) ) HON. J.S.DANIEL FRANK KENNETH TALLEY, ) JUDGE ) Appellant/Cross-Appellee ) (Direct Appeal- Rape)

FOR THE APPELLANT : FOR THE APPELLEE : SCOTT DANIEL JOHN KNOX WALKUP 401 W . Main St. Attorney Generaland Reporter Murfreesboro, TN 37133-0960 KAREN M. YACUZZO Assistant Attorney General 425 Fifth Avenu e North Nashvill e, TN 37243-0493 BILL WHITESELL Distri ct Attor ney General PAU L A. HO LCO MBE , III Assistant Distri ct Attor ney Rutherford Count

y Judici al Bldg. Murfreesboro, TN 37130

OPINION FILED ________________________ AFFIRMED JERRY L . SMI TH, J UDGE-2- 

# OPINION

The appellant, Frank Kenneth T alley, Jr., was convicted b y a Rutherford Coun ty jury of

three (3) count s of rape, a C lass B felony. Th e trial court sentenced Appella nt as a R ange II Multipl e Offender to concurrent

sentences of thirteen (13) years for each offense. On appeal, Appell ant raises several i ssues for our revi ew: (1) whetherthe indictme nt failed to se t forth the es sential elem ents of the cri me because it does not aver a culpabl e mental state; (2) whether theeviden ce wa s sufficie nt to es tablish Appe llant’s guilt beyond a reaso nable d oubt; (3) wheth er the tr ial cou rt prop erly denied the admission of evidence regardin g the victim ’s psycho logical trea tment; (4) whether the t rial cour t erred i n allowi ng the pr osecut ion to ask leadin g que stions and th ereby denie d App ellant a fair trial; (5) whether the cour

t erred i n allowi ng the state t o introduce the medi c al report of

the vict im’s emergency roo m visit andallowin g such repo rt to be passed to the jury; (6) wheth er the tr ial cou rt erred in admittin g a photographic line-up; (7) whether the trialcourt err ed in ruli ng that the prose cution could cross-examineAppellant as to his pr ior convi ction for theoffense of assault with intent to rob , if Appellant chose to testify; (8) whether the cour

t erred i n a llo wing the state to inform the jury that Appellant had provi ded a list of al ibi witnesses; (9) whetherthe court erred in over ruling def ense counsel’s

objecti on and allow ing the pro secuto r to state to the jury th at wha t the victim told another

person was hearsay; and (10) whether thetrialcourt deni ed Appellant a fair trial b y allege dly bi ase d rulings during cl osing argument whi ch unfairly favored t he prosecution

.1 It i s the poli cy of this Court not t o reveal the names of victi ms of sex crimes. -3- The state al so appeals, cl aiming that the trial cour t erred in se ntencing Appella nt. After a thorough rev iew of the r ecord before t his Court, we affirm the judgment of the trial cou rt. FACTS

On April 23, 19 95, D.M .’s 1 car broke down i n the parki ng lot of Kroger grocery store in Murfre esbo ro. A m an, late r id entifi ed as the appellan t, app roach ed D.M. and offer ed his assistance. After examining t he vehicle, Appellant

tol d D.M. that he needed to take a friend ho me, bu t would re turn with tools to fix the c ar. Whi le Appellant was gone, another man, Jerry Goodri ch, stopped and offered h is assi stanc e with th e ma lfunctio ning ve hicle. A ppella nt even tually returned, and he an d Good rich were able to re pair D.M.’s car. Appellant of fered to follow D.M. half

way home in ca se her vehi cle stopped agai n. Instead, Appe llant followed D.M. all of th e way to h er apartm ent. Wh en they arrived at D.M.’ s home, Appellant asked if he cou ld us e he r restroom. D.M. agreed. Upon entering theapartm ent, D.M . offered A ppellant a beer in gratitude for hi s assistance in repairing her car. He took the beer, sipped it and went

to t he rest roo m. Appellant t hen walked into thekitchen, whereD.M.

was putting away groceri es, and grabbed heraround her nec k fro m behind. As he dragged her into t he bedroom, the victi m asked what he was doing. Appellant replied, “[i] f you just

be quiet and don’ t fight me, I won’t hur

t you.” Appellant t

ook D.M. into the bedroom, put her on t he bed, and wrapped the cover s around her head. The victi m begged Appellant to stop and, al though she did not se e Appellant

with a weapon, believed that App ellant mig ht “blow [he r] brains ou t.”2 No semen or other physi cal evide nce was found as a result of the victi m’s physicalexamination at the hospital. However, the nurse who exam ined the victim observed red m arks on the victim’s forearm s and left low er leg. -4- Appellant

again sta ted that he would n ot hurt her if she di d not figh t him. The victim begged Appellant to rem ove the covers from h er hea d, and he eve ntually comp lied. Appellant

pulled of

f D.M.’s clothi ng and, over a pe riod las ting ap proxim ately forty-five (45) min utes, pen etrate d her vaginal ly, forced her to per form oral sex

on him, and the n performe d oral sex on he r. Howeve r, Appella nt did not e jaculate

as a result of these acts. Appell ant then apolo gized for his behavior and l eft the victim’s home. Before he drove away, however, D.M. observed and wrotedown the licens e plate nu mber fro m the ve hicle App ellant was driving. Subseq uently, D.M . call ed her son, Joshua, and informed hi m about the i nc ident. Joshua called the law enforcement authori ties, and when the police arrivedat the vict im’s home, she gave them a descri ption of Appel lant as wel l as his li cens e pl atenumb er. The v ict im was th en t aken to t he em erg ency roo m. 2 The police r

an a check on the li cense plate number pr ovided by D.M. , and the vehicle was

registe red to L izzie McGowen, the aunt of Appellant’ s wife. The of ficers went to Appell ant’s home and confr onted him wit h the chargesagains t him. Appellant’s wife told the officers, “[Appellant] couldn ’t have done it. He was with me all day.” App ellant also d enied the allegation s mad e by the victim

. The next morning, the vict im identi fied Appellant from a photographi c lineup. Appellant wa s arrested an d gave a statement to policeofficer s wherein he admitted assisting D.M. wit h her car the previous d ay, but den ied foll owing her to her ho me. Authorit ies later r

ecov ere d App ell ant ’s fi ngerpri ntsfrom a beerbottle f ound in the victim ’s hom e.-5- Appe llant’s wife, Bel inda Talley , testified for the def ense a t tr ial. She stated that Ap pellan t had b een in her presence the entir e day, wit h the excepti on of appro ximate ly forty-five (45) m inutes to an h our wh en Ap pellan t left his fa mily to pick up food. T he defense also presente d the testimon y of othe r family members, who testified as to Appellant’ s whereabouts duri ng the day of Apr il 23. Appe llant did not tes tify at trial. At the conclusi on of the proof , the jur y conv ic ted Appellant of three (3) counts of rape. The t rial cour t sent ence d App ell ant as a Ran ge II m ultiple of fenderto concu rr ent terms of

thi rt een ( 13) yea rs f

or e ach offense . Fr

om h i s convicti ons and sentences, t he Appellant an d the State of Ten ness ee brin g this appe al.

SUFFICI ENCY OF THE I NDICTMENT

Appellant

argues that his

convicti ons are void because the indi ctment did not allege a cul pable mental state. He clai ms that the i ndictment failed to set forth the esse nti al element s of the of fense; as a r

esult, t he trialcourt was deprived of

jurisdi ction, a nd his convi ctions for rape are void ab initio

. The indictme nt alleged that “on the 23rd da y of A pr il, 1995 , . . . Frank Kenn eth Talley, Jr., us ing force o r coercion to acco mplis h this act, did unlaw fully

sexua lly penetrate . . . [D. M.], i n violat ion of T.C.A. 39-13-503. . .” The language in the indictment is si milar to that i n the ca se o f State v. Hill , 954 S.W.2d 725 (Tenn. 1997). In Hill , the Suprem e Court was faced wi th an ident ical i ssue and held that: foroffenses which neither expr essly require nor pl ainly dispense with the requir

em ent for a culpa ble mental state, an in dictment-6- which fails to allege such m ental state will be sufficient to sup port prosecution and convict ion for t hat offense so long as (1 ) the language of the indi ctment is suf ficien t to m eet th e constit utional requirem ents of notice to the accused of t he charge against which the ac cuse d mu st defe nd, ad equa te bas is for entr y of a proper judg ment, and protection from d ouble jeopa rdy; (2) the form of the indi ctment meets the r equirements of

Tenn. Code Ann. § 40-13-202; and (3) the m ental s tate ca n be lo gically in ferred from the conduct alleged. Id. at 726-727. Under Tenn . Code Ann. § 3 9-13-50 3, th e culpable mentalstate for the offense of rape is neither sp ecifically stated nor plainly di spensed with. Thus, p ro of of “intent,” “ knowledge” or “ recklessness” will suffice to establ ish the culpable m ental state. Ten n. Code A nn. § 39-11-3 01(c). The indict ment in this c ase provides ad equate notice of the charged offensesas well as a bas is for entry of a proper j udgment and protect ion against doub le jeopardy. Furthermore, the indictm ent com plies with requirements stated in Ten n. Co de An n. § 40 -13-2 02. Mo reove r, the m ental s tate ca n be lo gic ally inferr ed from the conduct

alleged. “Obviousl y, theact for whi ch the defen dant is indicted, ‘unlawfully se xual pen etrat[ing]’ a p erson . . . is committable onl y if t he principalactor’s mens rea is intentional, knowing , or reckless.” State v. Hill , 954 S.W.2d at 729. The indictment in the pr esent case clearly

meets the requi rements set out in Hill and is, the refore, valid. T his issue is without m erit.

SUFFICI ENCY OF THE EVI DENCE-7- In his next issue, Appell ant contends that the evi dence is insufficient to support the jury’s f inding of guil t on three (3) counts of rape. Speci fically, h e asserts that the v ictim’ s testi mony is incredible, and there is litt le ev ide nce to corrobo rate her testi mony. Furthermore, he claims that the statefailed to present suffic ient evi dence of force or coercio n. A. When an appellant

challenges t he suffi ciency of the evidence, this Co urt is obliged to review th at challen ge acc ording to certain we ll-settled princ iples. A verdictof guil ty by th e jury, approved by t he trialjudge, accr edits th e testimony of the State’ s witnessesand re solves all conf licts in the testim ony in favor of the State. State v. Cazes , 875 S.W.2d 253, 259 (Ten n. 1994). Although an accused is original ly cloaked with a pres umption of innoc ence , a jury ve rdict rem oves th is presumption and replaces i t with one of guilt. State v. Tug gle , 639 S.W.2d 913, 914 (Tenn. 198 2). Hence, on appeal, the burden of proof rests with Appell ant to demo nstrate the insufficienc y of the con victing evide nce. Id. On appeal, the state i s e nt itled t o the strongest legit imate view of the evidence as we ll as all rea sona ble and legit imate inferences that may be drawn t herefr om. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 19 78). Where the sufficiency

of the evidence is contested on appeal, t he relevant question for the reviewi ng court is

whether any r

ational trier

of fact could have fou nd the accused guilty of every element of the of fense beyond a reaso nable d oubt. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992); Tenn. R. App . P. 1 3(e). I n conducting our evaluati on of the convi cting evi dence, thi s Court is pr ecluded from reweighing or reconsideri ng the evide nce. State v. Morgan , 929 S.W.2 d 380 , 38 3 (Te nn. Cri m. App. 1996). More over, th is Court may not substitute i ts own inferences “for those-8-

drawn by the trier

of fact from circum stantial evidence.” State v . Matt hews , 805 S.W .2d 776, 779 (Tenn. Crim . App. 1990 ). B. Rape is defin ed as the “unlawfulsexual penetr ation of a

victi m by the def en dant or of the de fendan t by a victim” a nd “[f]orce o r coercion is used to accomplish the act .” T enn. Code Ann. § 39-13- 503(a)(1) ( 1991). Unlawf ul sexual penetra tion “me ans se xual interco urse, c un niling us, fell atio, anal intercour

se, or any oth er intrusion , howeve r slight, of any part of a person’ s body

. . . into the genit

al or anal openings of the v ictim’s, t he defendant’s, or any other p erson ’s body . . . ” Tenn. Code Ann. § 39-13- 501(7) (1991). “Force” means “compulsion by the use of physical power or vi olence,” and“coerc ion” is defined

as the “threa t of kidnap ping, exto rtion, force, o r violence to be perfor med imm ediate ly or in the future.” Ten n. Code A nn. §§ 39-11 -106(a)(12), 39-13-501 (1) (1991). The victi m testifi ed t hat Appellant gr abbed her around her nec k from behind and dra gged h er into the b edroom

. When she asked what he was doi ng, Appellant

replied, “[i] f you just

be quiet and don’t fi ght me, I won’ t hurt you.” The victim testif ied that s he was frightened and begged Appellant to stop. Appellant pulled off the vict im’s clot hing and pene trated her vagina lly, forced her to perform oral sex on him , and then pe rformed ora l sex on her. The crux of Appel lant’s argument is t hat the vi ctim’s testimony was uncorroborated and unbelieva ble. How ever, it is well- settled that a defenda nt can be convicted of rape based sol ely upon the unco rroborated testimony of the vic ti m. State v. McKnight , 900 S.W .2d 36, 48 (T enn. Crim. A pp. 1994). Furthermore, questionsof the weig ht and credibil ity of the witnes ses’ test imony

are matters entrusted exclus ively to the j ury as the t rier of fact. State v. Goode ,3 Although not raised by

either party, we have examined the recor d and find t hat three (3) separa te convic tions for ra pe are c onstitutiona lly permiss ible in this cas e. See State v. Barney , S.W.2d (Tenn. 1999). -9- 956 S.W.2d 521, 526 (Tenn. Cri m. App. 19 97); State v. Brewer , 932 S.W.2d 1, 19 (Tenn. Crim. App. 1996). The jury obvi ously accredited the victim’s testimony, and this C ourt is not a t liberty to overtu rn the jury’s a ssessm ent. After reviewi ng the test imony in the light most favorabl e t o the state , we conclude there is sufficie nt evid e nce for a rat ional trier of f act to fi nd that Appe llant, through force o r coerc ion, un lawfully s exually pene trated th e victim in three (3) separate instances. 3 This issu e has n o merit.

VICTI M’S MENTAL HE ALTH RECORDS

Appellant

challenges hi s convict ions on the basis of sev eral rul ings by the trialcourt denyi ng him access to i nformation and tes timonyconcerning t he victi m’s mental health records and history. Appellant allege s that the trial court erred in refus ing to a llow Ap pellan t to cros s-exa mine the vic ti m concerning her mental condition , in refusing the allow in to eviden ce D.M .’s menta l health

r ecor ds, and in quashing a subpoena for Dr. Susan O’Connor, the psychiatri st who was counsel ing D.M. A ppella nt furthe r argue s that th e trial co urt erre d in ruling that Appell ant could not el icit te stimony that D.M. had been recei ving counseling a t the Rutherford C ounty Guida nce Cen ter. A. Background Prior to tri al, the defense learnedt hat th e victi m had been receivi ng counseling at the Rutherford County G uidance C enter f or a pproxim ately thirty (30) days prior

to the i ncident on Apri l 23. Appe llan t fil ed a motion for an independentpsychologi cal examination of the victim and req uested that the sta te-10-

produce the vict im’s psychi atric r ecords from the Guidance Center. The t rial court denied Appe ll ant’s moti on for an ind ependent psychol ogical exami nation of the victi m. After conduct ing an in camera inspe ction o f the victim ’s psyc hiatric records, the tri al cou rt also d enied Appellant’s motion for production of those records, finding such rec ords to be irrelevan t. Furthermore , the trial court precluded Appellant f rom cross-examini ng the witnes s as to her mentalconditi on on relevancy

grounds as well . However, t he trialcourt added, “I mean, if you can tie it in and make it relevant, y es, but general fi shing expeditions to embarrass . . . and i ntimidate”

the witnes s would be prohi bited. B. Access to Victi m’s Psychi atric Records Appellant

claims that

he should have been al lowed to exam ine the victim’s psych iatric records for the purpose of

impeaching her, and the tri al court e rred in denying him access to such records. See State v. Barnes , 703 S.W.2d 611, 617 (Tenn.1985) (holding that it is permiss ible “to cro ss-e xamine a k ey accusato ry witness in a cri minal case as to his mental state or condit ion . . . for t he purpose of impeaching the witnes s.”). The trialcourt conducted an in camera inspecti on of D.M.’s mentalhealth records to determine the probative valueof such records. Howeve r, the trialcourt determined that t he informati on contained i n the records

was irrel evant. We agree. The records ind icate th at D.M. sought counseling for anxiety and pa nic att acks . There is no ev idence that D.M. was delusi onal or prone to fabri cation. Nothing in t he records pertained t o D.M.’s cre dibility or t he probative value of her testimony. Our review of the recor

ds shows no information which could reasonabl y have been helpf ul to the defense in chal lenging t he victim’s veracity. The trial court prope rly den ied Ap pellan t acce ss to th e victim ’s confidenti al mental health rec ords. See State v. Middlebrooks , 840 S.W.2d 317, 332-33 (T enn. 1992 ).-11- C. Cro ss-Ex amin ation o f Victim Appellant

also clai ms that he was denied h is right of confront

ation when the court refus ed to allow defens e coun sel to cr oss-e xamin e the vic tim concerning her men tal con dition. H e furthe r argue s that th e trial co urt imp roper ly restri cted his cro ss-exa mina tion of th e victim ’s preliminary hearing testimony and refused to all ow him to cross- examine the victi m regarding her allege d purchases of illegaldrugs.

The confrontat ion clause of the Sixt h Amendment provides two types of pro tection for c riminal de fendan ts: the right to physic ally face thos e who te stify agains t them, a nd the righ t to cross-examinewitnesse s. Penn sylvan ia v. Ritc hie , 480 U. S. 39, 51, 107 S.Ct. 98 9, 998, 9 4 L.Ed.2d 4 0, 53 (19 87). Th e right to cross-examine wit nesse s, howe ver, does not includ e the po wer to require the pre trial disclosure of any and al l information that might be useful in co ntradicting unfavora ble testim ony. Id. , 480 U. S. at 53, 107 S.Ct. at 999 , 94 L.Ed.2d at 54. Therefore, t he right to confront witnessesis sati sfied i f defense counselreceives wi de latit ude at trialto cross-examine, because the confrontat ion clause o nly gu ara ntees “an opportuni ty for effective cross-examination, not cross-examinat ion thatis effective i n whatever way, and to whatever extent, the defense might wish.” Id. (quoting Delaware v. Fensterer , 474 U.S. 1 5, 20, 106 S.C t. 292, 294, 88 L.E d.2d 15, 19 (1 985)). State v. Middlebrooks , 840 S.W.2d at 332-33. The United States Sup reme C ourt has recognized t hat the right to “confr

ont and to cross- e xamine is not abs olute and may, in appropriate cases, bow to accommo date oth er legitima te interests in the criminal trial process .” Cham bers v. M ississi ppi , 410 U.S. 284, 295, 93 S.Ct. 1038, 1046, 35 L. Ed. 297 (1973). For instance, a tri al judge has t he discreti on “to li mit reasonabl y a criminaldefendant’s righ t to cross-ex

amine a witness ‘based on concerns about, among other things, harassment, prej udice, confusion of the issu es, the witnes s’ safet y, or i nterrogat ion that i s repetit ive or only marginally relevan t.’” Michigan v. Lucas , 500 U.S. 145, 149, 11 1 S.Ct. 1743, 1746, 114 L.Ed.2d 205 (1991)(quoting Dela ware v . Van A rsdall , 475 U.S. 673, 679, 106 S .Ct. 1431, 143 5, 89 L.Ed.2d 674 (1986 )).-12- The trial court ruled that Appellant could not cr oss-examine the victi m as to her m ental c onditio n bec ause it was irrelevant. How ever, the tri al court noted thatAppe llant co uld cro ss-exa mine the victim o n her mental state if

it bec ame relevant, but “generalfishing exp editions” d esigne d to em barrass and intim idate the victim wou ld not be a llowed. This ruli ng was en tirely prope r. Michigan v. Lucas , 500 U .S. at 149 , 111 S.C t. at 1746; Chambers v. Missi ssippi , 410 U.S. at 295, 93 S.C t. at 1046. A lthough a crimina l defenda nt h as the right to confront and cross-examinewitnesses agai nst him, t hat right is li mited by Rule 402of the T ennessee Rules of Evi dence in that neither par

ty “may cros s-examine a wit ne s s on matter s that are i rrelevant.” State v . Wil li ams , 929 S.W.2d 385, 389 (Tenn. Crim. App . 1996) (citation om itted). Furthermore, the trial court did not und uly r estri ct the cros s-examinati on regarding the victim’s prelimina ry heari ng testi mony. Defense counsel tho roughl y cross-examined the victim a bout w hy she did no t imm ediate ly call for help duri ng or after t he rape, her abusive past rel ationshi ps, and the inconsi stencies bet ween her testi mony at tri al and her te stimony at t he prelimi nary heari ng. Appellant

likewise ar gues th at the tr ial court erred in excl uding defense questionsto t he vi cti m regar ding all eged s tat ements made by

D.M. that she was buying coca ine for h er boy friend. W e find th is cont ention withou t merit. N ot only

was such questioni ng irrel evant, but it was cl early desi gned to h ara ss t he v ict im. See Tenn. R. Evid. 402 and 403. “While great latitude in the are a of impeachment should be granted, the propriety, scope, and manner of the cross examination stil l rest with the dis cretion of the tri al court.” State v. Forbes , 918 S.W.2d 431, 450 (Tenn. Cri m. App. 1995) . This Court will not disturb discretionary limits on cross-exa mination ab sent a show ing of clear and p la in-13-

abuse. Id. The trialcou rt did not abuse its discreti on in excluding such questioni ng. D. Motion to Quash Appellant

also clai ms that he was denied his right to co mpulsory process when the trialcourt quashed a subpoena for Dr. Susan O’Connor, the psychiatri st who was counseling the vict im at the Rutherford County Guidance Center. The trialc ourt, after finding that the victim ’s men tal health h istory was irrelevant, excused Dr. O’Connor from testi fying for the defense. Tenn . Code Ann. § 2 4-1-207 (a) provide s, in pertine nt part: [c]ommunicati ons between a patient and a licensed physician when practicing as apsych iatrist in the course of and in connecti on with a therapeuti c counseling r elations hip . . . are priv ileged in proceedingsbefore judici al and quasi- judici al tri bunals. Neit her the psychiatrist

nor any member of the staff may testify or be compelled to testify as to such communications or otherwise re veal the m in such p roceed ings witho ut conse nt of the pa tient excep t: (1) In proceedi ngs in which t he patient raises th e issue of the patient' s mental or emoti onal condit ion; (2) In proceedings for which the psychi atrist was ordered by the trib unal to ex amine the patien t if the patient w as advise d th a t communications to the psychiatrist wou ld not be privi leged, but testimony

as to the communicat ions is admis sible on ly on issues involv ing the pat ient's mental or emoti onal condit ion; and (3) In proc eedings to i nvoluntar ily hospitalizet he patient unde r § 33-6-103 o r § 33-6-104, i f the psychi atrist decides that

the patient is in need o f care an d treatm ent in a res idential facility. U n less otherwise ordered by the co urt, the exce ption is limite d to disclosur

es neces sary to es ta b lish that t he patient poses a substanti al likel ihood of ser io us harm re quiring involuntary hospital izatio n under § 33-6-103 or § 33-6-104. (Emph asis added ). None of the listed exceptions ap ply in this case. Further, the victim clearly did not consent to Dr. O’Conn or testif ying regarding her counseli ng sessions. M or eover, the tri al court pr eviously deemed the vict im’s mental health to be-14-

irrel evant at tri al. Therefore, the tri al court pr operly quashed t he subpoena for Dr. O’Conn or. E. Conclusi on After a careful r

eview of t he victi m’s mental healt h records submit ted under seal to this

Court, we agree with the t rial court that the victim’s psychiatric histo ry had no bearing on hercredibil ity. We, therefore, conclude that Appellant was not denied the opportu nity “to expo se to the ju ry the facts from w hich ju rors ... co uld appro priately draw infer ences relat ing to the reliab ility of the witnes s.” Davis v. Alaska , 415 U.S. 308, 318, 94 S.Ct. 1105, 1111, 39 L.E d.2d 347, 35 5 (1974); see also State v. Middlebrooks , 840 S.W.2d at 333. This issu e is withou t merit.

LEADI NG QUESTIONS

Appellant

asserts t hat he w as denied a fai r tri al when the state asked allege dly i mproper and highl y prejudi cial l eading questi ons of a prosecut ion witness. Gwendolyn Willard, the emergency room nurse who examined D.M. the eveni ng of the ra pe, tes tified tha t she o bserv ed red mark s on th e vic ti m’ s for ear ms and lower left leg. On cross-exam ination, W illard acknowl edged that the victi m did not att ribute the r ed markings on her body to any for

ce that occurred during the r ape. On re-di rect examinat ion, the fo llowing exchange occurred: Q. W ell, she nev e r said that’s what happene d to her, but are they [the ma rk i ngs] not c on sistent

with what happen ed to her?-15- MR. DANIEL: Your Hon or, he i s

leading the witnes s now, and this is his witness. THE COURT: Your response. GEN. HOLCOMBE: I’l l rephras e it. THE COURT: All right. GEN. HOLCOMBE: Y ou s ai d thatyou had her history. And a lthough s h e did n ot lin k these, m y q uest ion is , would you tell us whether o r n o t they are consistent

with that history. MR. DANIEL: Objecti on, yo ur Honor,

you know, anything could be consistent

with a ny thing. I mean tha t doesn’t -- THE COURT: Ov erruled. You ca n

answer. A. They could b e

consistent with this history. The state concedes t hat the fi rst questi on was, in fact, a l eading questi on. The second question, however, was not leading. “A leading question has been defined as one which ‘suggests t he specifi c answer desired.’” N. Cohen, D. Paine & Shepp eard, Tennessee Law of Evidence § 611. 6 (3d ed.1995) ( citati on omitted). The state’s

question, as ulti mately posed, d id notsuggest the answer desired. In any event , Appel lant has not shown how he was prej udiced by the all eged leading q uestions and, ther efore, is no t entitled to relie f. Sta te v

. Caughron , 855 S.W .2d 526, 538 (Tenn. 199 3).4 The trial co urt de nied t he re que st ba sed upon prev ious ruling s co nce rning the vic tim’s psychologi cal state.

5 The redacted version de leted the reference to the Rutherford Coun ty Guidance Center. -16- This issu e is withou t merit.

INTRODUCTI ON OF MEDICAL REPORT

In his next i ssue, Appe llant arg ues th at the tria l court e rred in admitting into evidence the vict im’s emergen cy r oom report. He i nsists t hat the repor t was hearsayand not admissibl e under any of t he hearsay except ions. Furt hermore, he contend s that the trial court erred in pa ssing such re port to the jury. During Gwen dolyn W illard’s testim ony, she utilized th e eme rgency room triageassessment report to refr esh her memory. In t he report, Willard noted t hat the victi m was a patient at the Ruth erford County Guidance Center. During cross-examinat ion, the d efense sought to question Willard about t he Guidance Centernotation 4 and requested t hat the repor t be submitted as a part of the defense offer of

proof regar

ding the vi ctim’s mentalstate. The state suggested thatthe report

be admitted as an exhibi t which woul d not be passed to the jury. Defense counsel repl ied, “[ t]hat’ s fine.”

Subsequently during the trial, the sta te requested that a redac ted v ersio n 5 of the recor d be passed to the j ury, and Appellant

objected. The trialcour t overruled Appe llant’s ob jectio n and allowed t he redacted recor

d to be passed. Initially, we note that this i ssue is waived because Appellant failed to make a contemporaneous object ion to theadmission of the exhibit. State v. P hilpott , 882 S.W.2d 394, 405 (Ten n. Cri m. App. 1994); Tenn. R. App. P. 36(a). I ndeed, Appellant act ually cons ented to the report’ s admission i nto evidence.-17- Although Appellant

claims that

he objected to the adm ission of the report, he merely o bjected to the exhib it being pa ssed to the j ury. This Court has previo usly stated th e jury “ is enti tled to r eview those exh ibits which have been admitted as evidence i n th e case.” State v. R ichard A llen Kidd, II , C.C.A. No. 03C01-9607-CC-00272, 1997 WL 789909 at *4, Ande rson C ounty (Ten n. C ri m. App. filed Dec ember 2 3, 1997, at Kn oxville). Furthermore, the hospital records of the vi ctim are admissi ble under Tenn. R. Evid. 803 (4), beca use the report ( 1) was made for the purpos e of medical diagn osis and treatment; (2) descri bes the medical history of the declaran t, i.e., the victim; and (3) is “reaso nably pertinent to diag nosis and trea tment.” State v. Edwards , 868 S.W .2d 682, 699 (Tenn. Crim . App. 1993 ). Nevertheless, Appellant has not demonstrate d how he was prejudi ced by the adm is sion ofthis evi dence. The information contai ned in the re port was presen ted to the jury t hrough the test imony of Willar d, who essenti ally r

ead the rep or t into the rec ord. Th erefore, a ny error in th e adm ission of the report into evidenc e was a t most ha rmless

. See State v. Edwards , 868 S.W.2d at 699. This issu e has n o merit.

PHOTOGRAPHI C LINE- UP

Appellant

claims that

the tri al court erred in allowin g the state to admit t he photo graph ic line-up in which the vict im identi fied Appell ant as the perpetrator of the rape. He argues t hat the li ne-up was irr elevant at

trialbecause he admitted thathe assisted t he victi m with her vehi cle on April23. Further , he asserts that the photographic

line-up was

unduly prej udicial in that the photograph depi cted him as a “perso n accu sed of crim e.”-18- We must note that

Appellant di d not contemporaneousl y obj ect to t he admission of the pho tograph ic line-up. A s such, thi s issue is w aived. State v. Gilmore , 823 S.W .2d 566, 570 (Tenn. Crim . App. 1991 ); Tenn. R. A pp. P. 36(a). Although Appellant insists tha t he did object, such objection was untimely. Defense counsel objected to the admissi on of the li ne-up at the concl usion of t he witness’ testimony. The line-up had al ready been admitted into evi dence, and any objecti on was, at t hat point, too late. Regardless, the photogra phic line-up was properly a dmitt ed. “[T]he dec ision to admit or excl ude evidence i s left to the sound di scretion of the trial judge and the judge’ s decision wi ll not be dis turbed unles s it has b een a rbitrarily exercised .” State v . Davis , 872 S.W .2d 950, 955 (Tenn. Crim . App. 1993 ). Evidence that thevicti m identif ied Appellant as the perpe trator o f a crim e is high ly relevant. Tenn. R. Evid. 401. Furthe rmore, the pro bative value of such evidence outweighs any prejudi cial i mpact. Certai nly, t he jury w as aware that Appel lant had been “accused of c rime,” as he was standing t rial f

or a criminaloffense. This issu e is withou t merit.

APPELLA NT’S PRI OR CONVICTI ONS

I n his ne xt issue Appe llant ch alleng es the trial cou rt’s ruli ng on th e admis sibility of a prior convicti on for

impe achm ent pu rpose s. He a rgues that his prior convicti on for assaul t with i ntent to r ob is similar to ra pe in that b oth offenses involve “assaultive cond uct.” Further, he asserts tha t the probative value of t he prior conv iction on the issue of credibility is sligh t, and therefor e, is out weighed by its prejud icial impac t.-19- Under Rule 609 of the Tennesse e Rules of Evi dence, there ar e s peci fic procedures to be foll owed before pri or convict ions of a criminal accusedmay be admitted into evidencefor impeachment purposes. The state must pr ovide the

accus ed w ith written notice prior to trial of the propo sed impe aching con viction(s). Tenn. R. Evid. 609(a)(3 ). Prior t o the testi mony of the accused, the trial court must determine that the convic tion’s probative value on credibility outw eighs its unfair prejudic ial eff

ect on the substan tive issues

. Id. ; see also State v. Farmer , 841 S.W.2d 837, 839 (Tenn. Cri m. App.1992). I n making such a determinati on, the trial court should “a s sess the simi larit y between the crime on trialand the cri me underlyi ng the impeaching convicti on.” N. Cohen, D. Paine & Sheppeard, TennesseeLaw of Evidence§ 609.9 at p. 376 (3 d ed.19 95). Secondly, t he trial court must “analyze the relev ance the impeachingconviction has to the issue of credibility.” Id. The state gave no tice of its intent to impeach Appellant, should he choose to testify, with a prior c onvictio n in Mic higan of ass ault with the i ntent to r ob. Prior to the defen se proo f, the trial court conducted a jur y-out heari ng to determine the admissi b ilityof Appellant’s prior co nviction for impea chmen t. The trial court found that the off enses w ere inherent ly dif ferent, in that the prior convicti on involved a robbery whereas Appellant was st an ding tri al for a s exual offense. Furthermore, th e trialcourt found that the pr obative value on the i ssue of Appe llant’s credibility outweig hed an y prejudicia l effect. Therefore, the trial court ruled that the state c ould im peac h App ellant w ith the p rior offe nse, if he testif ied. We agree with the tri al court t hat the impeachi ng convicti on was dissimil ar to the present offense of r ape. Despite the viol ence inherent in each offense, one offense is sexual in nature whil e the other i nvolves a r obbery. Never

theless, the fact that the prior offe nse is s imila r to the crime for which a defendant is bei ng-20-

tried does not ne ce ssarily requ ire that it be ex cluded

. State v. Blevins , 968 S.W .2d 888, 893 (Tenn. Crim . App. 1997 ). App ellant’s prior conv iction was highly probative of credib ilit y in that

i t involved robbery which implica tes the critica l elemen t of dishon esty. State v. Carruthers , 676 S.W .2d 935 , 941 (T enn. 19 84); State v. Blevins , 968 S.W.2d at 8 93. Courts of this state h ave held that the o ffenses of burg lary and theft are “highly probative of credi bility ,” because these crimes involve dish onesty. State v. Baker , 956 S.W.2d 8, 15 (Tenn. Crim. App. 1997) (cit ing State v. Crank , 721 S.W.2d 264, 266-67 (Tenn. Crim. App. 1986 ); St ate v. Tune , 872 S.W.2d 922, 927 (Tenn . Crim. A pp. 199 3); State v. Miller , 73 7 S. W.2d 5 56, 560 (Ten n. C ri m. App. 1987 )). Under this Cou rt’s

revi ew, we do not re-evaluate w hether the pro bative value of the defe ndant’s pri or convict ion outweigh s the poss ible prejudicial effect it might ha ve had. State v. Robe rts , 943 S.W.2d 403, 408 (Tenn. Cr im. App. 1996). We may o nly reve rse the decisio n of the trial cou rt if we find that it abus ed its discreti on in admitt ing the conv ictions. Id. ; State v. Tune , 872 S.W.2d at 927. As Appe ll ant’s pri or convict ion of assaul t with i ntent to r ob is probat ive of credibility, the trial c ourt did not abus e its disc retion in ruling th at the s tate co uld impeach Appellant with this prior co nviction, if he chose to tes tify. This issu e is withou t merit.

LIST OF WITNESSES

Appellant

alleges t hat the trial court err ed in all owing the state to inform the jury that App ellant had provided a list of “alibi witne sses.” H e argues that the prose cutor’s statem ent is ana logous to that in State v. Meeks , 876 S.W.2d 121,-21-

129 (Tenn. Crim. App. 1993), where this C our t overtu rned th e defe ndan t’s convicti ons after

finding tha t the state had erroneously referredto the defe nse of alibi contrary to Ten n. R. Crim. P. 1 2.1(f). In Meeks , the defense had fil ed a notice of a pote ntial alib i witnes s, Ron nie A nderson, but withdrew its intent to present an alibi defense duri ng a bench conferenc e at trial. Id. at 128-29. Dur ing cross- examination, the prosecutor questioned Anderson as to whet her he knew that he had been listed as an alibi witness for the d efense

. Id. at 129 . The tr ial cou rt susta ined th e defe ndan t’s objecti on to this

question, but all owed further inquiry into thealibi defense bythe prosecution

. Id. This Court rev ersed the defen dant’s convi ction d u e to a violat ion of Tenn . R. Crim . P. 12.1(f), w hich proh ibits the ad mission into evidence the defendant’s

intent t o rely on t he alibi defen se o nce that i ntention has been withdrawn. Id. at 128-29. Th is Court observed that the error was “ compounded when the State was al lowed in cl osing argument to make adversarialuse of the defendan t’s withdrawal of the alibi defe nse.” Id. at 129. In the case subjudice , Appellant points to a n excha nge be tween th e state and Belinda Talley where the prosecutor asked if she knew Robert Verge. Mrs. Talley respon ded, “ [t]hat’s my d ad. W hich one ? It’s [sic] two R obert Ve rges.” The prosecutor

replied, “[t] his is j ust a li st ofwitnesse s provide d by Mr. D aniel to us.” We find the present case to be disting uisha ble from this Cour t’s hold ing in Meeks

. First, the holdi ng in Meeks was based upon avio lat ion of Tenn . R. Cri m. P. 12.1(f) due to the fact that the defense had wit hdrawn its i ntention t o use an alibi defense at trial . In this case, Appellant had not withdrawn his notice of alibi. Indeed, the defense pr esented testimon y as to Ap pellant’s w hereab outs during the time of t he offenses, and defens e coun sel ma de an a libi argum ent durin g its-22-

closing. Secondly, unlikein Meeks , the prosec ution di d not refer to the wit nesses as “alibi witne sses” bu t merely re ferred to th e list as a “list of w itnesses .” Furthermore, the questi on was an isolated incident in that the prose cutor’s comment was the only one which could vaguel y be construed as commenting on the de fense ’s change in tact ic. We conclude that Appellant

was not prej udiced by the pro secution ’s referenc e to a “list of witn esses.” This issu e is withou t merit.

VICTI M’S HEARSA

Y STATEMENT

In his next issue, Appell ant complains that the state and trial co ur t impro perly cha rac

terize d ce rt ain stateme ntsma de by the victi m to defense witnessesas hear s ay. He argues t hat any statement made by the vic tim is an admis sion and is admis sible as a n adm ission by a party opponent under Tenn. R. Evid. 803( 1.2). We disagree. The parties to a criminalcase are the S tate of Tennessee and the defendant . The vict im is a wit ness, albei t an inter ested one, in the li tigati on. Ther efore, th e victim ’s state men ts do n ot fall under the purv iew of Rule 8 03(1.2). T his issue is without m erit.

CLOSING A RGUMENT

Appellant al so argues that the trial c ourt de nied h im a fair t rial by making improperand bias e d rulings during cl osing argument. Specifically Appel lant allegesthat the tri al court erred i n sustaining the state’s objections to defense

coun sel’s use of the wor ds “preposter

ous” and “I guar

an tee ” during cl osing-23-

argum ent. Furthe rmor e, he c laims that the trial cou rt cut off d efens e cou nsel’s argument in mid-sentence and refused to a llow counselfive seco nds to conclude his final sentence, while gi ving the pr osecution an additio nal thir ty (30) s econds forargum ent. Add itionally, he asse rts that in the state’s cl osing argument, the prosecutor

erroneously

referredt o the defense’ s fail ure to present evidence of motive after t he defense had been precl uded from intr oducing such eviden ce. Finally, he contends that the prosecutor improperl y inject ed his personalopinion into his clos ing arg ume nt. W e will t ake ea ch of these assign men ts of erro r in turn. A. Defen se Closing A rgument Appe llant

claims that

the tri al court erred in sustaining t he stat e’ s objecti ons to defe nse c ouns el’s arg ume nt on th e bas is that defense counsel impro perly asserted his perso nal opinio n. Defense counsel began hi s argument by statingthat theprosecutor “sa id to you [jury] someth ing that is absolutely, in my mind, preposterous.” The state objected, and the t rial cour t sustai ned the objecti on. Subsequently, defense counselstatedon two separate occasions, “I guarantee”in con junc tion with his a rgume nt. The p rosecu tion’s objec tions to such co mm ents we re sustain ed by the trial court. An attorne y shou ld not in ject his p erson al opin io ns in clo sing argu ment. State v. Payne , 791 S .W.2d 10, 20 (T enn.19 90); see also State v. Hicks , 618 S.W.2d 510, 516, 517(Ten n. C ri m. App.1981 ); Sup. Ct. Rule 8 , DR 7-106 (C)(4). Each of these contested s tatements clearly expr essed defense counsel’s opinion

. The trial court pr

operly sustained the state’s objecti ons to these comments. Appellant

further contend s that the trial court show ed part iali ty in l imiting the time defense coun sel was al lowe d to argu e. W e do no t agree. P rior to argum ent, the trialcourt cl early stated that bot h sides would be al lowed only thirty-24-

(30) minute s for argu ment. This was entir ely wit hin the cour

t’s di scretion. Tenn. R. Crim. Pro 29.1(c). Alt hough Appellant complai ns that th e trial court cu t off defense coun sel in mid-sentence withou t allotting any ad ditiona l time to finish h is sentence, the tri al court s imilarly terminated the state’ s ar gument when the pro secu tion’s time had ended. Furthermore, the additi onal thirty (30) se cond s afforded the state fo r its argum ent w as to compen sate for t he time used by defense coun sel’s repeated objec tions and subsequent arguments with the trial court’s rulings. “Trial judges are accor ded wide discr

etion in control of

the argum ent.” State v. Zirkle , 910 S.W .2d 874 , 888 (T enn. C rim. App . 1995). The trialcourt did not abuse its discret ion. This issu e has n o merit.

B. ProsecutorialMisconduct Appellant also argues that the state committed prosecutorial misconduct by referri ng to the l ack of proof that the vict im had a motive for fabri cating t he rape when the defense was precluded from going into poss ible moti ves of the vi cti m. He al so c lai ms that the pr osecutor i mproperly asser ted his own per

sonal opinion d uring clos ing argu ment. 1. In its summation, the defense argued that the victi m fabricatedthe rap e in order to gai n sympathy fr om her estrang ed boyfrie nd. In rebuttal, the as sistant distri ct attorney stated:

Now, he wan ts you to beli eve that she i s an emotional bask et case, thatshe d id this for some m otive. And I subm it to you there really isn’t a m otive, and I’m going to come back to t his , bu t l et me ask you this. Did you hear a si ngle witness get up on this sta nd, in all the witnes ses that you’ve h eard, and say she is t he type of person thatdoes this? She’ s done this bef ore. She wil l make up a wild allegat ion to ge t some body ba ck. Did Je rry Hunte r say that? Did Terry Alexander

say that? Did any

one else [say

] that? In all the supposed boyfri ends that she’ s had, this person who goes around6 Emphasis added to point out specif ic portions of prosecuti on’s argument that Appellant

finds objectio nable. -25- doing this t

ype of thi ng, did asing le person get up here and say that’s the k ind ofthing s he’d s ay? N o, they d idn’t. No t a sing le person said that

about her. Not

a singl e perso n said she w ould make some thing like this up. Now , let’s talk abo ut that. The prosecution’ s argument conti nued:

Now, why didn’t she immediately call t he police? Just lik e he wants you to be lieve that the re ough t to be a clima x in eve ry single rape case, even t hough that’s not the law, he wan ts you to say every rape victi m needs to cal l 91 1 im m ediate ly, or eve ry rape victim needs to run right

overand rep ort this. She gave you a very honest answer why sh e didn ’t

. She sa id because ever ybody knows what a rape vict im goes thr ough. And that’ s exactly what she’s gone through; isn’t

it? A lon g prelimin ary heari ng, statements, stayed at the hospital for hours t hat night undergoing a rape examination, had to turn ove r her clothe s, had to tu rn over he r blanket.

. . . .

. . . She sat on t his stand for hours and had to be questioned about every single incident, h ad to bring up pas t boyfriend s, every ty pe of slur that coul d be thrown against her as to why sh e was doing this. She was righ t in not doin g that. Did she do it to be vindic tive? She didn’t even want to cal l the police

. . . . (Emph asis added ). 6 2. Both the state and the d efense are afforde d wide latitude in argu ing the ir

cases to the jury. State v. Bigbee , 885 S.W.2d 797, 809 (Tenn. 1994); State v. Z irk le , 910 S.W.2d at 888. However, when the prosecut ion’s arg ument goes beyond that wid e latitud e afford ed, the test to d eterm ine wh ether r evers al is required is “whether the im propri ety ‘affe cted the ver dict to the prejudi ce of the defen dant.’” State v. Bigbee , 885 S.W.2d at 809 (quoti ng Harring ton v. State , 215 Tenn. 33 8, 385 S.W .2d 758, 759 (1965)). In reviewi ng a claim of prosecutorial misconduct during clo sing argu ment, we are guided by such factors as:-26- 1. The conduct complai ned of viewed in conte xt and in li ght of the facts and ci rcumstances of t he case. 2. The curative m easure s unde rtaken b y the cou rt and the prosec ution. 3. The intent of the prosec ution in m aking the improp er statem ent. 4. The cumulative ef

fect of t he improper cond u ct and any oth er erro rs in the reco rd. 5. The relat ive str

ength or weakness of the case. Judge v. State , 539 S.W .2d 340, 344 (Tenn. Crim . App. 1976 ). 3. Appellant

contends that

the prosecution’s ref

erence to Appellant’s l ack of evidence of motive was improper because he was pr ecluded from introdu cing such evidence by t he trialcourt. Ho wever, co ntrary to Appellant’ s asserti on, the trialc ou rt did not

restri ct the defense’s abil ity to explore t he theory of motive or fabricat ion throu gh witness testimony or ar gument. The tri al court i nformed Appellant

that he woul d be able to cr oss-examine the victi m concerning her mental conditi on, if t hat condit ion w as re levant to the issues at trial . The tri al court mere ly preve nted A ppella nt from delving into the victim’s psych iatric history

as amean s of

emba rrass ing or h ara ssi ng t he v ict im. In any event, the state ’s argument was not directed at the v ict im’ s psychologi cal state, but was in r esponse to defense counsel’s ar gument that the victi m fabri cated the i ncident. The state argued t hat none of t he witnesses supported the defense t heory. “The bounds of proper

argum ent larg ely depend upon the facts

in evidence, the charac ter of t he trial , and the conduct of opposing

co unsel.” State v. Coker , 911 S.W .2d 357 , 368 (T enn. C rim. App

. 1995) . Th e prosecution’s a rgumen t was not imp roper. 4.-27- Appellant

also clai ms that the prosecuti on improperly asserted a per

sonal opinion dur ing its cl osi ng ar gumen t. A lawye r mu st not a ssert his personal opinion as to the cr

edibil ity of

a witness, or as to t he guilt or innocen ce of th e defend ant. State v. Henley , 774 S.W.2d 908, 911 (Tenn. 1989). Furthermore, it is “unprof

essional conduc

t for a p rosecu tor in his arg umen t to the jury to express his or h er pers onal b elief or o pinio n a s to the t ruth or falsity of any testimony or evide nce, or the guilt of the de fendant.” Id. at 911. The prosecutor

improperly

commented upon the vict im’s test imony when he stat ed that she gave“a very honest answer” as he was expressinghi s personal belief as to the t ruth o f he r testi mony. However, t his was an isol ated incident, and taken in context of the argument as a whol e, the comment does not appear to have p rejudiced the App ellant. See State v. Henley , 77 4 S.W.2d at 911

. Moreover, the remaining comments cited by Appellant are not perso na l opinion. The pr osecu tion’s statem ents that thevicti m had to endure slur s to her character

and that she di d not want to call t he police were proper c omm ents based upon fa cts in the re cord. See Coke r v. State , 911 S.W.2d at 368. 5. None of the alleged pro secutorial errors during cl osing argumentappear to have affected the verdi ct to Appellant’s prejud ice and do not warrant a reversal of his convic tions. See State v. Bates , 804 S .W .2d 86 8, 881 (Ten n. 199 1). Th is issue ha s no m erit.

SENTENCING

In its cr oss-appeal, the stateargues that the tri al court erred in sentencing Appellant

to thir tee n (13) years, one year above the minimum sentence for a-28-

Range II offen der of a Cla ss B felony. Specifically, the statecontends that the trialcourt err

ed in fai ling to apply certain enhancement factors. The refore , the state claims that the se ntence wa s too lenient, and A ppellant shou ld have received a sentence in the middl e of the range. A. When a party complai ns of the sentence imposed at trial, we must conduct

a denovoreview wi th a presumption of correctness . Tenn. Code Ann. § 40-35- 401(d). The burden of showing t hat the sentence is improper is upon the appealing party. Te nn. Co de Ann . § 40-35 -401(d) S ente ncing Commission Commen ts. This p resum ption, h owev er, is condi tioned upon an affirmative showing in the record that the tri al court considered thesentencing principl es and all the r elevan t facts and circums tances

. State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991 ). How ever, if the t rial court fails to comply with the statutory principles, there is no presumption of corr ectness and our review is de novo

. The Sentencing Reform Act of 1989 established specifi c procedures which must be foll owed in sentenci ng. These procedures, codifi ed at Tenn. Code Ann. § 40-35-210, mandated t he trialcourt’s considerati on of the fo llowing: (1) The evidence, i f any, r eceived at t he trialand the sentenci ng hearing; (2) [t]he presentence report; (3) [t]he princi ples of sentencing and arg u ments as to sentenc ing alte rnatives; (4) [ t]he nature and c harac teristics of the c rimina l cond uct invo lv ed; (5) [e]vidence and informati on offered by the parti es on the enhancement a nd mitigat ing factors in §§ 40-3 5-113 and 40-35-114; and (6) [a] ny statement t he defenda nt wishes to make in hi s own behalf about

sentencing. Tenn. Code Ann. § 40-35-210(c) further provi des that the minimum sentence within the range is the pre sumptive sentence. The t rial cour t must begin wi th the minimum senten ce an d enhance that sentence to appropri ately r eflect a ny statutory enhan ceme nt factors th at the cou rt f inds t o be present. Tenn. Code7 The trial court also

found as an enhancement facto r “the nat ure and circumstances of the offe nse whic h dea lt with th ree s epa rate p ene tration s of v ariou s type s givin g rise to the offe nse .” Th is enhan cem ent facto r listed is not a s tatutory enh ancem ent facto r and is, the refore, im proper. See State v. Strickl and , 885 S.W .2d 85, 89 (Tenn. Crim . App. 1993). -29- Ann. § 40-35-210( d). After enhancing the sentence, the court must reducethe sentence approp riate to the weight of an y mitigating factors that the court finds. Tenn. Code Ann. § 4 0-35-21 0(e). No par ticular w eight fo r each factor is prescribed by the statu te, as the w eight given to each fa ctor is left to the discreti on of the tri al court as long as thetrialcourt compli es with th e purposes and principl es of the sentencing act and its findi ngs are supported by t he record. State v. Leggs , 955 S.W.2d 845, 848 (Tenn. Crim. App. 1997); State v. Shelton , 854 S.W.2d 116, 123 (Tenn. Cri m. App. 1992); Tenn . Code Ann. § 40-35-210 Sentencing Commission Comm ents. B. The trialcourt foundthat App ellant was a Ran ge II, multipl e offender. The court found as en hanc eme nt facto rs that A ppella nt had a previo us history of criminal behavior i n additi on to thos e necessary to establis h the range, Tenn. Code Ann. § 40-35-114( 1); and A ppellant had a h istory of unw illingness to

com ply with the conditions of a sentence i nvolvi ng releas e in the comm unity, Tenn. Code Ann. § 40-3 5-114(8). 7 The trialcourt rej ected two (2)enhancement factors proposed by t he state: (1) that the o ffense w as com mitted to g ratify Appe llant’s desire for pleasu re or exciteme nt, Tenn. Co de Ann. § 4 0-35-114(7 ); and (2) that

the crime was committed under circ um stan ces under which t he potentialfor bodily injur y to a victi m was great, Tenn. Code Ann. § 40-3 5-114(16). In mitigati on, the trial court foundthat Appell ant had gainf ul employment, was an excellent

worker, had t he support of members of the community, had conducted hims elf as an upstanding c itizen in the pa st and h ad supported hi s family an d8 Neither par ty contests the appl icabil ity of Tenn. Code Ann. §40-35-114(1) and (8) as enhancement factors. We agree. Appellant has a prior r ecord consisti ng of convictions for gr oss sexual impo sition and c riminal tres pass in O hio in addition to his felony c onvictions establishin g him a s a Ran ge II offe nde r. Te nn. C ode Ann . § 40 -35- 114 (1). F urthe rm ore, A ppe llant vio lated paro le on a conv iction in Michigan, demonstr

ating a history of

unwill ingness to comply with t he conditi ons of a sentence i nvolvi ng release into the comm unity. Tenn. Code Ann. § 40-35-114(8 ). -30- church. Tenn. Code Ann. § 40-35-113( 13). After weighing t he enhancement and mitigati ng factors pre sent in this c ase, the tria l court sen tenced Appella nt to concurrent terms of thir teen (13) years for each convicti on of rape.

C. The state c laims that the trial c ourt erro neously fail ed to cons ider t

wo enhancement factors: (1) that t he offense was co mm itted to gratify Appe llant’s desire forpleasure or excitement, Tenn. Code Ann. § 40-35-114(7) ; and (2) t hat the cri me was committed under ci rcumstances under whi ch the potent ial for bodily injury

to a vict im was great, Tenn. Code A nn. § 40-35-11 4(16). 8 We disagree. 1. In State v. Adams , 864 S.W.2d 31, 34-35 (Tenn. 1993), our Suprem e Court rejected the notion that “as a matter of l aw, every r ape is impli citly

committed for the purpose of pl easure or exci tement.” The Court recognized t hat some acts of rape are “simply ac ts of brutality re sulting from hatred o r the des ire to see k revenge, c ontrol, i ntimidate, or are t he product of a misguided desire to j ust abuse another hum an being.” Id. at 35. T he Co urt held that because pleasure

or excitement i s not an essenti al element of the offens e of rape, Tenn. Code Ann. § 40-3 5- 114(7) m ay be us ed to en hance a defen dant’s se ntence for rape. Id. Howeve r, the statehas the burden of dem onstra ting tha t the crim e was sexua lly motivate d. Id. ; see also State v. Hoyt , 928 S.W.2d 935, 949 (Tenn. Cri m. App. 1995).-31- In this case t he State points to the la ck of b rutality in this rap e, App ellant’s inquiry of the vi ctim as to whet her she li ked oral sex, and Appellant’ s apologyto the victi m as evidence that the rape wa s com mitted to satisfy Appellant’s de sire forpleasure an d exc item ent. How ever, this tes timony is s o amb iguous as to Appe llant’s purpose in committ ing this crime, that we a re not prepared to hold the trialjudge in e rror for failing to find that such evidence makes out enhan cement factor (7). T his issue is without m erit.

2. Having just argu ed th at Appellant’s benign behav ior in committing t his rape indicates it was not

a crime of

violence, the State, rather i nconsistent ly, ar gues thatAppellant’ s actions i n holding t he victim around the neck, threateni ng her with injury if sh e did not submit to his advances, and wrapping bedcovers around the victim’s he ad indica te the crime wa s comm itted under circum stances wh ere there was g reat po tential fo r bodily injury to the vi ctim. Tenn. Code Ann. Sec. 40- 3 5-114 (16). Wh ile this behavior is repreh ensible it does no t appear to ha ve subjected the victim to a risk of bodily i njury greater than t hat ordinarily at tendant in a rape. We therefore again decl ine to hol d the tri al court i n error for fail ing to apply this e nhanc emen t factor. Th is issue is w ithout me rit.

D. We find that t h e trialcourt properly rej ected the t wo (2) addit ional enhancement factors proposed by the State when it sentenced Appellant . The state does n ot contes t the applic ability of miti gating fac tors found by

the trial court but suggests tha t such mitigating fac tors are entitled to little we ight. Ho weve r, it9 The App ellant rece ived a very len ient s ente nce . How ever , the w eight to be given applic able mitigati ng factors i s a matter entrust ed to the t rial co urt and we are not ordinari ly fr

ee to second guess tha t decision. -32- is apparent tha t the trial court gave gre at weight to the mit igating factors, as evidenced by Appellant ’s sentence of one (1) year

above the mini mum sentence. This was c ertainly within th e trial co urt’s discretion

. State v. Leggs , 955 S.W.2d at 848. 9

For t he re asonsstated, t he ju dgment of t he trial cour

t is AFFIRMED

.

____________________________________ JERRY L . SMI TH, J UDGE

CONCUR:

___________________________________ GARY R. WADE, PRESI DING J UDGE

___________________________________ DAVID G. HAY ES, J UDGE