FILED

September 17, 1999

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

MAY SESSION, 1998

STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9612-CC-00524

)

Appellee/Cross-Appellant, )

)

) RUTHERFORD COUNTY

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 General and Reporter

Murfreesboro, TN 37133-0960

KAREN M. YACUZZO

Assistant Attorney General

425 Fifth Avenue North

Nashville, TN 37243-0493

BILL WHITESELL

District Attorney General

PAUL A. HOLCOMBE, III

Assistant District Attorney

Rutherford County Judicial Bldg.

Murfreesboro, TN 37130

OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
-2-

OPINION

The appellant, Frank Kenneth Talley, Jr., was convicted by a Rutherford

County jury of three (3) counts of rape, a Class B felony. The trial court

sentenced Appellant as a Range II Multiple Offender to concurrent sentences of

thirteen (13) years for each offense. On appeal, Appellant raises several issues

for our review:

(1) whether the indictment failed to set forth the essential elem ents

of the crime because it does not aver a culpable mental state;

(2) whether the evidence was sufficient to establish Appellant’s guilt

beyond a reasonable doubt;

(3) whether the trial court properly denied the admission of evidence

regarding the victim’s psychological treatment;

(4) whether the trial court erred in allowing the prosecution to ask

leading questions and thereby denied Appellant a fair trial;

(5) whether the court erred in allowing the state to introduce the

medical report of the victim’s emergency room visit and allowing

such report to be passed to the jury;

(6) whether the trial court erred in admitting a photographic line-up;

(7) whether the trial court erred in ruling that the prosecution could

cross-examine Appellant as to his prior conviction for the offense of

assault with intent to rob, if Appellant chose to testify;

(8) whether the court erred in allowing the state to inform the jury

that Appellant had provided a list of alibi witnesses;

(9) whether the court erred in overruling defense counsel’s objection

and allowing the prosecutor to state to the jury that what the victim

told another person was hearsay; and

(10) whether the trial court denied Appellant a fair trial by allegedly

biased rulings during closing argument which unfairly favored the

prosecution.
1

 It is the policy of this Court not to reveal the names of victims of sex crimes.

-3-

The state also appeals, claiming that the trial court erred in sentencing Appellant.

After a thorough review of the record before this Court, we affirm the judgment

of the trial court.

FACTS

On April 23, 1995, D.M.’s1 car broke down in the parking lot of Kroger

grocery store in Murfreesboro. A man, later identified as the appellant,

approached D.M. and offered his assistance. After examining the vehicle,

Appellant told D.M. that he needed to take a friend home, but would return with

tools to fix the car. 

While Appellant was gone, another man, Jerry Goodrich, stopped and

offered his assistance with the malfunctioning vehicle. Appellant eventually

returned, and he and Goodrich were able to repair D.M.’s car. Appellant offered

to follow D.M. halfway home in case her vehicle stopped again. Instead,

Appellant followed D.M. all of the way to her apartm ent. 

When they arrived at D.M.’s home, Appellant asked if he could use her

restroom. D.M. agreed. Upon entering the apartment, D.M. offered Appellant a

beer in gratitude for his assistance in repairing her car. He took the beer, sipped

it and went to the restroom. Appellant then walked into the kitchen, where D.M.

was putting away groceries, and grabbed her around her neck from behind. As

he dragged her into the bedroom, the victim asked what he was doing. Appellant

replied, “[i]f you just be quiet and don’t fight me, I won’t hurt you.” Appellant took

D.M. into the bedroom, put her on the bed, and wrapped the covers around her

head. The victim begged Appellant to stop and, although she did not see

Appellant with a weapon, believed that Appellant might “blow [her] brains out.”
2

 No semen or other physical evidence was found as a result of the victim’s physical examination

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 stated that he would not hurt her if she did not fight him. The

victim begged Appellant to remove the covers from her head, and he eventually

complied. 

Appellant pulled off D.M.’s clothing and, over a period lasting approximately

forty-five (45) minutes, penetrated her vaginally, forced her to perform oral sex

on him, and then performed oral sex on her. However, Appellant did not ejaculate

as a result of these acts. Appellant then apologized for his behavior and left the

victim’s home. Before he drove away, however, D.M. observed and wrote down

the license plate number from the vehicle Appellant was driving. 

Subsequently, D.M. called her son, Joshua, and informed him about the

incident. Joshua called the law enforcement authorities, and when the police

arrived at the victim’s home, she gave them a description of Appellant as well as

his license plate number. The victim was then taken to the emergency room.2

The police ran a check on the license plate number provided by D.M., and

the vehicle was registered to Lizzie McGowen, the aunt of Appellant’s wife. The

officers went to Appellant’s home and confronted him with the charges against

him. Appellant’s wife told the officers, “[Appellant] couldn’t have done it. He was

with me all day.” Appellant also denied the allegations made by the victim . 

The next morning, the victim identified Appellant from a photographic lineup. Appellant was arrested and gave a statement to police officers wherein he

admitted assisting D.M. with her car the previous day, but denied following her

to her home. 

Authorities later recovered Appellant’s fingerprints from a beer bottle found

in the victim’s home. 
-5-

Appellant’s wife, Belinda Talley, testified for the defense at trial. She

stated that Appellant had been in her presence the entire day, with the exception

of approximately forty-five (45) minutes to an hour when Appellant left his family

to pick up food. The defense also presented the testimony of other family

members, who testified as to Appellant’s whereabouts during the day of April 23.

Appellant did not testify at trial.

At the conclusion of the proof, the jury convicted Appellant of three (3)

counts of rape. The trial court sentenced Appellant as a Range II multiple

offender to concurrent terms of thirteen (13) years for each offense. From his

convictions and sentences, the Appellant and the State of Tennessee bring this

appeal.

SUFFICIENCY OF THE INDICTMENT

Appellant argues that his convictions are void because the indictment did

not allege a culpable mental state. He claims that the indictment failed to set

forth the essential elements of the offense; as a result, the trial court was

deprived of jurisdiction, and his convictions for rape are void ab initio.

The indictment alleged that “on the 23rd day of April, 1995, . . . Frank

Kenneth Talley, Jr., using force or coercion to accomplish this act, did unlawfully

sexually penetrate . . . [D.M.], in violation of T.C.A. 39-13-503. . .” The language

in the indictment is similar to that in the case of State v. Hill, 954 S.W.2d 725

(Tenn. 1997). In Hill, the Supreme Court was faced with an identical issue and

held that:

for offenses which neither expressly require nor plainly dispense

with the requirement for a culpable mental state, an indictment
-6-

which fails to allege such mental state will be sufficient to support

prosecution and conviction for that offense so long as

(1) the language of the indictment is sufficient to meet the

constitutional requirements of notice to the accused of the charge

against which the accused must defend, adequate basis for entry of

a proper judgment, and protection from double jeopardy;

(2) the form of the indictment meets the requirements of Tenn. Code

Ann. § 40-13-202; and

(3) the mental state can be logically inferred from the conduct

alleged.

Id. at 726-727.

Under Tenn. Code Ann. § 39-13-503, the culpable mental state for the

offense of rape is neither specifically stated nor plainly dispensed with. Thus,

proof of “intent,” “knowledge” or “recklessness” will suffice to establish the

culpable mental state. Tenn. Code Ann. § 39-11-301(c).

The indictment in this case provides adequate notice of the charged

offenses as well as a basis for entry of a proper judgment and protection against

double jeopardy. Furthermore, the indictment complies with requirements stated

in Tenn. Code Ann. § 40-13-202. Moreover, the mental state can be logically

inferred from the conduct alleged. “Obviously, the act for which the defendant is

indicted, ‘unlawfully sexual penetrat[ing]’ a person . . . is committable only if the

principal actor’s mens rea is intentional, knowing, or reckless.” State v. Hill, 954

S.W.2d at 729.

The indictment in the present case clearly meets the requirements set out

in Hill and is, therefore, valid. This issue is without merit.

SUFFICIENCY OF THE EVIDENCE
-7-

In his next issue, Appellant contends that the evidence is insufficient to

support the jury’s finding of guilt on three (3) counts of rape. Specifically, he

asserts that the victim’s testimony is incredible, and there is little evidence to

corroborate her testimony. Furthermore, he claims that the state failed to present

sufficient evidence of force or coercion.

A.

When an appellant challenges the sufficiency of the evidence, this Court

is obliged to review that challenge according to certain well-settled principles. A

verdict of guilty by the jury, approved by the trial judge, accredits the testimony

of the State’s witnesses and resolves all conflicts in the testimony in favor of the

State. State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994). Although an accused

is originally cloaked with a presumption of innocence, a jury verdict rem oves this

presumption and replaces it with one of guilt. State v. Tuggle, 639 S.W.2d 913,

914 (Tenn. 1982). Hence, on appeal, the burden of proof rests with Appellant to

demonstrate the insufficiency of the convicting evidence. Id.

On appeal, the state is entitled to the strongest legitimate view of the

evidence as well as all reasonable and legitimate inferences that may be drawn

therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Where the

sufficiency of the evidence is contested on appeal, the relevant question for the

reviewing court is whether any rational trier of fact could have found the accused

guilty of every element of the offense beyond a reasonable doubt. State v. Harris,

839 S.W.2d 54, 75 (Tenn. 1992); Tenn. R. App. P. 13(e). In conducting our

evaluation of the convicting evidence, this Court is precluded from reweighing or

reconsidering the evidence. State v. Morgan, 929 S.W.2d 380, 383 (Tenn. Crim.

App. 1996). Moreover, this Court may not substitute its own inferences “for those
-8-

drawn by the trier of fact from circumstantial evidence.” State v. Matthews, 805

S.W.2d 776, 779 (Tenn. Crim. App. 1990).

B.

Rape is defined as the “unlawful sexual penetration of a victim by the

defendant or of the defendant by a victim” and “[f]orce or coercion is used to

accomplish the act.” Tenn. Code Ann. § 39-13-503(a)(1) (1991). Unlawful

sexual penetration “means sexual intercourse, cunnilingus, fellatio, anal

intercourse, or any other intrusion, however slight, of any part of a person’s body

. . . into the genital or anal openings of the victim’s, the defendant’s, or any other

person’s body . . .” Tenn. Code Ann. § 39-13-501(7) (1991). “Force” means

“compulsion by the use of physical power or violence,” and “coercion” is defined

as the “threat of kidnapping, extortion, force, or violence to be performed

immediately or in the future.” Tenn. Code Ann. §§ 39-11-106(a)(12),

39-13-501(1) (1991).

 The victim testified that Appellant grabbed her around her neck from

behind and dragged her into the bedroom . When she asked what he was doing,

Appellant replied, “[i]f you just be quiet and don’t fight me, I won’t hurt you.” The

victim testified that she was frightened and begged Appellant to stop. Appellant

pulled off the victim’s clothing and penetrated her vaginally, forced her to perform

oral sex on him, and then performed oral sex on her.

The crux of Appellant’s argument is that the victim’s testimony was

uncorroborated and unbelievable. However, it is well-settled that a defendant can

be convicted of rape based solely upon the uncorroborated testimony of the

victim. State v. McKnight, 900 S.W.2d 36, 48 (Tenn. Crim. App. 1994).

Furthermore, questions of the weight and credibility of the witnesses’ testimony

are matters entrusted exclusively to the jury as the trier of fact. State v. Goode,
3

 Although not raised by either party, we have examined the record and find that 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. Crim. App. 1997); State v. Brewer, 932 S.W.2d 1,

19 (Tenn. Crim. App. 1996). The jury obviously accredited the victim’s testimony,

and this Court is not at liberty to overturn the jury’s assessm ent.

After reviewing the testimony in the light most favorable to the state, we

conclude there is sufficient evidence for a rational trier of fact to find that

Appellant, through force or coercion, unlawfully sexually penetrated the victim in

three (3) separate instances.3

 This issue has no merit.

VICTIM’S MENTAL HEALTH RECORDS

Appellant challenges his convictions on the basis of several rulings by the

trial court denying him access to information and testimony concerning the

victim’s mental health records and history. Appellant alleges that the trial court

erred in refusing to allow Appellant to cross-examine the victim concerning her

mental condition, in refusing the allow into evidence D.M.’s mental health

records, and in quashing a subpoena for Dr. Susan O’Connor, the psychiatrist

who was counseling D.M. Appellant further argues that the trial court erred in

ruling that Appellant could not elicit testimony that D.M. had been receiving

counseling at the Rutherford County Guidance Center.

A. Background

Prior to trial, the defense learned that the victim had been receiving

counseling at the Rutherford County Guidance Center for approximately thirty

(30) days prior to the incident on April 23. Appellant filed a motion for an

independent psychological examination of the victim and requested that the state
-10-

produce the victim’s psychiatric records from the Guidance Center. The trial

court denied Appellant’s motion for an independent psychological examination

of the victim. After conducting an in camera inspection of the victim ’s psychiatric

records, the trial court also denied Appellant’s motion for production of those

records, finding such records to be irrelevant. Furthermore, the trial court

precluded Appellant from cross-examining the witness as to her mental condition

on relevancy grounds as well. However, the trial court added, “I mean, if you can

tie it in and make it relevant, yes, but general fishing expeditions to embarrass .

. . and intimidate” the witness would be prohibited.

B. Access to Victim’s Psychiatric Records

Appellant claims that he should have been allowed to exam ine the victim’s

psychiatric records for the purpose of impeaching her, and the trial court erred in

denying him access to such records. See State v. Barnes, 703 S.W.2d 611, 617

(Tenn.1985) (holding that it is permissible “to cross-examine a key accusatory

witness in a criminal case as to his mental state or condition . . . for the purpose

of impeaching the witness.”). The trial court conducted an in camera inspection

of D.M.’s mental health records to determine the probative value of such records.

However, the trial court determined that the information contained in the records

was irrelevant. We agree. The records indicate that D.M. sought counseling for

anxiety and panic attacks. There is no evidence that D.M. was delusional or

prone to fabrication. Nothing in the records pertained to D.M.’s credibility or the

probative value of her testimony. Our review of the records shows no information

which could reasonably have been helpful to the defense in challenging the

victim’s veracity. The trial court properly denied Appellant access to the victim’s

confidential mental health records. See State v. Middlebrooks, 840 S.W.2d 317,

332-33 (Tenn. 1992).
-11-

C. Cross-Examination of Victim

Appellant also claims that he was denied his right of confrontation when

the court refused to allow defense counsel to cross-examine the victim

concerning her mental condition. He further argues that the trial court improperly

restricted his cross-examination of the victim’s preliminary hearing testimony and

refused to allow him to cross-examine the victim regarding her alleged purchases

of illegal drugs.

The confrontation clause of the Sixth Amendment provides

two types of protection for criminal defendants: the right to

physically face those who testify against them, and the right to

cross-examine witnesses. Pennsylvania v. Ritchie, 480 U.S. 39, 51,

107 S.Ct. 989, 998, 94 L.Ed.2d 40, 53 (1987). The right to

cross-examine witnesses, however, does not include the power to

require the pretrial disclosure of any and all information that might

be useful in contradicting unfavorable testimony. Id., 480 U.S. at 53,

107 S.Ct. at 999, 94 L.Ed.2d at 54. Therefore, the right to confront

witnesses is satisfied if defense counsel receives wide latitude at

trial to cross-examine, because the confrontation clause only

guarantees “an opportunity for effective cross-examination, not

cross-examination that is effective in whatever way, and to whatever

extent, the defense might wish.” Id. (quoting Delaware v. Fensterer,

474 U.S. 15, 20, 106 S.Ct. 292, 294, 88 L.Ed.2d 15, 19 (1985)).

State v. Middlebrooks, 840 S.W.2d at 332-33. The United States Supreme Court

has recognized that the right to “confront and to cross- examine is not absolute

and may, in appropriate cases, bow to accommodate other legitimate interests

in the criminal trial process.” Chambers v. Mississippi, 410 U.S. 284, 295, 93

S.Ct. 1038, 1046, 35 L.Ed. 297 (1973). For instance, a trial judge has the

discretion “to limit reasonably a criminal defendant’s right to cross-examine a

witness ‘based on concerns about, among other things, harassment, prejudice,

confusion of the issues, the witness’ safety, or interrogation that is repetitive or

only marginally relevant.’” Michigan v. Lucas, 500 U.S. 145, 149, 111 S.Ct. 1743,

1746, 114 L.Ed.2d 205 (1991) (quoting Delaware v. Van Arsdall, 475 U.S. 673,

679, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674 (1986)).
-12-

The trial court ruled that Appellant could not cross-examine the victim as

to her mental condition because it was irrelevant. However, the trial court noted

that Appellant could cross-examine the victim on her mental state if it became

relevant, but “general fishing expeditions” designed to embarrass and intimidate

the victim would not be allowed. This ruling was entirely proper. Michigan v.

Lucas, 500 U.S. at 149, 111 S.Ct. at 1746; Chambers v. Mississippi, 410 U.S. at

295, 93 S.Ct. at 1046. Although a criminal defendant has the right to confront

and cross-examine witnesses against him, that right is limited by Rule 402 of the

Tennessee Rules of Evidence in that neither party “may cross-examine a witness

on matters that are irrelevant.” State v. Williams, 929 S.W.2d 385, 389 (Tenn.

Crim. App. 1996) (citation omitted).

Furthermore, the trial court did not unduly restrict the cross-examination

regarding the victim’s preliminary hearing testimony. Defense counsel thoroughly

cross-examined the victim about why she did not immediately call for help during

or after the rape, her abusive past relationships, and the inconsistencies between

her testimony at trial and her testimony at the preliminary hearing.

Appellant likewise argues that the trial court erred in excluding defense

questions to the victim regarding alleged statements made by D.M. that she was

buying cocaine for her boyfriend. W e find this contention without merit. Not only

was such questioning irrelevant, but it was clearly designed to harass the victim.

See Tenn. R. Evid. 402 and 403. “While great latitude in the area of

impeachment should be granted, the propriety, scope, and manner of the cross

examination still rest with the discretion of the trial court.” State v. Forbes, 918

S.W.2d 431, 450 (Tenn. Crim. App. 1995). This Court will not disturb

discretionary limits on cross-examination absent a showing of clear and plain
-13-

abuse. Id. The trial court did not abuse its discretion in excluding such

questioning.

D. Motion to Quash

Appellant also claims that he was denied his right to compulsory process

when the trial court quashed a subpoena for Dr. Susan O’Connor, the psychiatrist

who was counseling the victim at the Rutherford County Guidance Center. The

trial court, after finding that the victim’s mental health history was irrelevant,

excused Dr. O’Connor from testifying for the defense.

Tenn. Code Ann. § 24-1-207(a) provides, in pertinent part:

[c]ommunications between a patient and a licensed physician

when practicing as a psychiatrist in the course of and in connection

with a therapeutic counseling relationship . . . are privileged in

proceedings before judicial and quasi-judicial tribunals. Neither the

psychiatrist nor any member of the staff may testify or be compelled

to testify as to such communications or otherwise reveal them in

such proceedings without consent of the patient except:

(1) In proceedings in which the patient raises the issue of the

patient's mental or emotional condition;

(2) In proceedings for which the psychiatrist was ordered by

the tribunal to examine the patient if the patient was advised that

communications to the psychiatrist would not be privileged, but

testimony as to the communications is admissible only on issues

involving the patient's mental or emotional condition; and

(3) In proceedings to involuntarily hospitalize the patientunder

§ 33-6-103 or § 33-6-104, if the psychiatrist decides that the patient

is in need of care and treatment in a residential facility. Unless

otherwise ordered by the court, the exception is limited to

disclosures necessary to establish that the patient poses a

substantial likelihood of serious harm requiring involuntary

hospitalization under § 33-6-103 or § 33-6-104.

(Emphasis added).

None of the listed exceptions apply in this case. Further, the victim clearly

did not consent to Dr. O’Connor testifying regarding her counseling sessions.

Moreover, the trial court previously deemed the victim’s mental health to be
-14-

irrelevant at trial. Therefore, the trial court properly quashed the subpoena for Dr.

O’Connor.

E. Conclusion

After a careful review of the victim’s mental health records submitted under

seal to this Court, we agree with the trial court that the victim’s psychiatric history

had no bearing on her credibility. We, therefore, conclude that Appellant was not

denied the opportunity “to expose to the jury the facts from which jurors ... could

appropriately draw inferences relating to the reliability of the witness.” Davis v.

Alaska, 415 U.S. 308, 318, 94 S.Ct. 1105, 1111, 39 L.Ed.2d 347, 355 (1974); see

also State v. Middlebrooks, 840 S.W.2d at 333.

This issue is without merit.

LEADING QUESTIONS

Appellant asserts that he was denied a fair trial when the state asked

allegedly improper and highly prejudicial leading questions of a prosecution

witness. Gwendolyn Willard, the emergency room nurse who examined D.M. the

evening of the rape, testified that she observed red marks on the victim’s

forearms and lower left leg. On cross-examination, Willard acknowledged that

the victim did not attribute the red markings on her body to any force that

occurred during the rape. On re-direct examination, the following exchange

occurred:

Q. Well, she never said

that’s what happened to her,

but are they [the markings]

not consistent with what

happened to her?
-15-

MR. DANIEL: Your Honor, he is

leading the witness now, and

this is his witness.

THE COURT: Your response.

GEN. HOLCOMBE: I’l l

rephrase it.

THE COURT: All right.

GEN. HOLCOMBE: You said

that you had her

history. And

although she

did not link

these, m y

q uest ion is ,

would you tell

us whether or

not they are

consistent with

that history.

MR. DANIEL: Objection, your Honor,

you know, anything could be

consistent with anything. I

mean that doesn’t --

THE COURT: Overruled. You can

answer.

A. They could be

consistent with this history.

The state concedes that the first question was, in fact, a leading question.

The second question, however, was not leading. “A leading question has been

defined as one which ‘suggests the specific answer desired.’” N. Cohen, D. Paine

& Sheppeard, Tennessee Law of Evidence § 611.6 (3d ed.1995) (citation

omitted). The state’s question, as ultimately posed, did not suggest the answer

desired. In any event, Appellant has not shown how he was prejudiced by the

alleged leading questions and, therefore, is not entitled to relief. State v.

Caughron, 855 S.W.2d 526, 538 (Tenn. 1993).
4

 The trial co urt de nied the re quest based upon prev ious ruling s concerning the vic tim’s

psychological state.

5

 The redacted version de leted the reference to the Rutherford Coun ty Guidance Center.

-16-

This issue is without merit.

INTRODUCTION OF MEDICAL REPORT

In his next issue, Appellant argues that the trial court erred in admitting into

evidence the victim’s emergency room report. He insists that the report was

hearsay and not admissible under any of the hearsay exceptions. Furthermore,

he contends that the trial court erred in passing such report to the jury.

During Gwendolyn W illard’s testimony, she utilized the emergency room

triage assessment report to refresh her memory. In the report, Willard noted that

the victim was a patient at the Rutherford County Guidance Center. During

cross-examination, the defense sought to question Willard about the Guidance

Center notation4 and requested that the report be submitted as a part of the

defense offer of proof regarding the victim’s mental state. The state suggested

that the report be admitted as an exhibit which would not be passed to the jury.

Defense counsel replied, “[t]hat’s fine.” Subsequently during the trial, the state

requested that a redacted version

5

 of the record be passed to the jury, and

Appellant objected. The trial court overruledAppellant’s objection and allowed the

redacted record to be passed.

Initially, we note that this issue is waived because Appellant failed to make

a contemporaneous objection to the admission of the exhibit. State v. Philpott,

882 S.W.2d 394, 405 (Tenn. Crim. App. 1994); Tenn. R. App. P. 36(a). Indeed,

Appellant actually consented to the report’s admission into evidence.
-17-

Although Appellant claims that he objected to the adm ission of the report,

he merely objected to the exhibit being passed to the jury. This Court has

previously stated the jury “is entitled to review those exhibits which have been

admitted as evidence in the case.” State v. Richard Allen Kidd, II, C.C.A. No.

03C01-9607-CC-00272, 1997 WL 789909 at *4, Anderson County (Tenn. Crim.

App. filed December 23, 1997, at Knoxville).

Furthermore, the hospital records of the victim are admissible under Tenn.

R. Evid. 803(4), because the report (1) was made for the purpose of medical

diagnosis and treatment; (2) describes the medical history of the declarant, i.e.,

the victim; and (3) is “reasonably pertinent to diagnosis and treatment.” State v.

Edwards, 868 S.W.2d 682, 699 (Tenn. Crim. App. 1993).

Nevertheless, Appellant has not demonstrated how he was prejudiced by

the admission of this evidence. The information contained in the report was

presented to the jury through the testimony of Willard, who essentially read the

report into the record. Therefore, any error in the admission of the report into

evidence was at most harmless. See State v. Edwards, 868 S.W.2d at 699.

This issue has no merit.

PHOTOGRAPHIC LINE-UP

Appellant claims that the trial court erred in allowing the state to admit the

photographic line-up in which the victim identified Appellant as the perpetrator of

the rape. He argues that the line-up was irrelevant at trial because he admitted

that he assisted the victim with her vehicle on April 23. Further, he asserts that

the photographic line-up was unduly prejudicial in that the photograph depicted

him as a “person accused of crim e.”
-18-

We must note that Appellant did not contemporaneously object to the

admission of the photographic line-up. As such, this issue is waived. State v.

Gilmore, 823 S.W.2d 566, 570 (Tenn. Crim. App. 1991); Tenn. R. App. P. 36(a).

Although Appellant insists that he did object, such objection was untimely.

Defense counsel objected to the admission of the line-up at the conclusion of the

witness’ testimony. The line-up had already been admitted into evidence, and

any objection was, at that point, too late.

Regardless, the photographic line-up was properly admitted. “[T]he

decision to admit or exclude evidence is left to the sound discretion of the trial

judge and the judge’s decision will not be disturbed unless it has been arbitrarily

exercised.” State v. Davis, 872 S.W.2d 950, 955 (Tenn. Crim. App. 1993).

Evidence that the victim identified Appellant as the perpetrator of a crime is highly

relevant. Tenn. R. Evid. 401. Furthermore, the probative value of such evidence

outweighs any prejudicial impact. Certainly, the jury was aware that Appellant

had been “accused of crime,” as he was standing trial for a criminal offense.

This issue is without merit.

APPELLANT’S PRIOR CONVICTIONS

In his next issue Appellant challenges the trial court’s ruling on the

admissibility of a prior conviction for impeachment purposes. He argues that his

prior conviction for assault with intent to rob is similar to rape in that both offenses

involve “assaultive conduct.” Further, he asserts that the probative value of the

prior conviction on the issue of credibility is slight, and therefore, is outweighed

by its prejudicial impact. 
-19-

Under Rule 609 of the Tennessee Rules of Evidence, there are specific

procedures to be followed before prior convictions of a criminal accused may be

admitted into evidence for impeachment purposes. The state must provide the

accused with written notice prior to trial of the proposed impeaching conviction(s).

Tenn. R. Evid. 609(a)(3). Prior to the testimony of the accused, the trial court

must determine that the conviction’s probative value on credibility outweighs its

unfair prejudicial effect on the substantive issues. Id.; see also State v. Farmer,

841 S.W.2d 837, 839 (Tenn. Crim. App.1992). In making such a determination,

the trial court should “assess the similarity between the crime on trial and the

crime underlying the impeaching conviction.” N. Cohen, D. Paine & Sheppeard,

Tennessee Law of Evidence § 609.9 at p. 376 (3d ed.1995). Secondly, the trial

court must “analyze the relevance the impeaching conviction has to the issue of

credibility.” Id.

The state gave notice of its intent to impeach Appellant, should he choose

to testify, with a prior conviction in Michigan of assault with the intent to rob. Prior

to the defense proof, the trial court conducted a jury-out hearing to determine the

admissibility of Appellant’s prior conviction for impeachment. The trial court

found that the offenses were inherently different, in that the prior conviction

involved a robbery whereas Appellant was standing trial for a sexual offense.

Furthermore, the trial court found that the probative value on the issue of

Appellant’s credibility outweighed any prejudicial effect. Therefore, the trial court

ruled that the state could impeach Appellant with the prior offense, if he testified.

We agree with the trial court that the impeaching conviction was dissimilar

to the present offense of rape. Despite the violence inherent in each offense, one

offense is sexual in nature while the other involves a robbery. Nevertheless, the

fact that the prior offense is similar to the crime for which a defendant is being
-20-

tried does not necessarily require that it be excluded. State v. Blevins, 968

S.W.2d 888, 893 (Tenn. Crim. App. 1997).

Appellant’s prior conviction was highly probative of credibility in that it

involved robbery which implicates the critical element of dishonesty. State v.

Carruthers, 676 S.W.2d 935, 941 (Tenn. 1984); State v. Blevins, 968 S.W.2d at

893. Courts of this state have held that the offenses of burglary and theft are

“highly probative of credibility,” because these crimes involve dishonesty. State

v. Baker, 956 S.W.2d 8, 15 (Tenn. Crim. App. 1997) (citing State v. Crank, 721

S.W.2d 264, 266-67 (Tenn. Crim. App. 1986); State v. Tune, 872 S.W.2d 922,

927 (Tenn. Crim. App. 1993); State v. Miller, 737 S.W.2d 556, 560 (Tenn. Crim.

App. 1987)).

Under this Court’s review, we do not re-evaluate whether the probative

value of the defendant’s prior conviction outweighs the possible prejudicial effect

it might have had. State v. Roberts, 943 S.W.2d 403, 408 (Tenn. Crim. App.

1996). We may only reverse the decision of the trial court if we find that it abused

its discretion in admitting the convictions. Id.; State v. Tune, 872 S.W.2d at 927.

As Appellant’s prior conviction of assault with intent to rob is probative of

credibility, the trial court did not abuse its discretion in ruling that the state could

impeach Appellant with this prior conviction, if he chose to testify.

This issue is without merit.

LIST OF WITNESSES

Appellant alleges that the trial court erred in allowing the state to inform the

jury that Appellant had provided a list of “alibi witnesses.” He argues that the

prosecutor’s statement is analogous to that in State v. Meeks, 876 S.W.2d 121,
-21-

129 (Tenn. Crim. App. 1993), where this Court overturned the defendant’s

convictions after finding that the state had erroneously referred to the defense of

alibi contrary to Tenn. R. Crim. P. 12.1(f).

In Meeks, the defense had filed a notice of a potential alibi witness, Ronnie

Anderson, but withdrew its intent to present an alibi defense during a bench

conference at trial. Id. at 128-29. During cross-examination, the prosecutor

questioned Anderson as to whether he knew that he had been listed as an alibi

witness for the defense. Id. at 129. The trial court sustained the defendant’s

objection to this question, but allowed further inquiry into the alibi defense by the

prosecution. Id. This Court reversed the defendant’s conviction due to a

violation of Tenn. R. Crim. P. 12.1(f), which prohibits the admission into evidence

the defendant’s intent to rely on the alibi defense once that intention has been

withdrawn. Id. at 128-29. This Court observed that the error was “compounded

when the State was allowed in closing argument to make adversarial use of the

defendant’s withdrawal of the alibi defense.” Id. at 129.

In the case sub judice, Appellant points to an exchange between the state

and Belinda Talley where the prosecutor asked if she knew Robert Verge. Mrs.

Talley responded, “[t]hat’s my dad. Which one? It’s [sic] two Robert Verges.”

The prosecutor replied, “[t]his is just a list of witnesses provided by Mr. Daniel to

us.”

We find the present case to be distinguishable from this Court’s holding in

Meeks. First, the holding in Meeks was based upon a violation of Tenn. R. Crim.

P. 12.1(f) due to the fact that the defense had withdrawn its intention to use an

alibi defense at trial. In this case, Appellant had not withdrawn his notice of alibi.

Indeed, the defense presented testimony as to Appellant’s whereabouts during

the time of the offenses, and defense counsel made an alibi argument during its
-22-

closing. Secondly, unlike in Meeks, the prosecution did not refer to the witnesses

as “alibi witnesses” but merely referred to the list as a “list of witnesses.”

Furthermore, the question was an isolated incident in that the prosecutor’s

comment was the only one which could vaguely be construed as commenting on

the defense’s change in tactic. We conclude that Appellant was not prejudiced

by the prosecution’s reference to a “list of witnesses.”

This issue is without merit.

VICTIM’S HEARSAY STATEMENT

In his next issue, Appellant complains that the state and trial court

improperly characterized certain statements made by the victim to defense

witnesses as hearsay. He argues that any statement made by the victim is an

admission and is admissible as an admission by a party opponent under Tenn.

R. Evid. 803(1.2). We disagree. The parties to a criminal case are the State of

Tennessee and the defendant. The victim is a witness, albeit an interested one,

in the litigation. Therefore, the victim’s statements do not fall under the purview

of Rule 803(1.2). This issue is without merit.

CLOSING ARGUMENT

Appellant also argues that the trial court denied him a fair trial by making

improper and biased rulings during closing argument. Specifically Appellant

alleges that the trial court erred in sustaining the state’s objections to defense

counsel’s use of the words “preposterous” and “I guarantee” during closing
-23-

argument. Furthermore, he claims that the trial court cut off defense counsel’s

argument in mid-sentence and refused to allow counsel five seconds to conclude

his final sentence, while giving the prosecution an additional thirty (30) seconds

for argument. Additionally, he asserts that in the state’s closing argument, the

prosecutor erroneously referred to the defense’s failure to present evidence of

motive after the defense had been precluded from introducing such evidence.

Finally, he contends that the prosecutor improperly injected his personal opinion

into his closing argument. We will take each of these assignments of error in

turn.

A. Defense Closing Argument

Appellant claims that the trial court erred in sustaining the state’s

objections to defense counsel’s argument on the basis that defense counsel

improperly asserted his personal opinion. Defense counsel began his argument

by stating that the prosecutor “said to you [jury] something that is absolutely, in

my mind, preposterous.” The state objected, and the trial court sustained the

objection. Subsequently, defense counsel stated on two separate occasions, “I

guarantee” in conjunction with his argument. The prosecution’s objections to

such comments were sustained by the trial court.

An attorney should not inject his personal opinions in closing argument.

State v. Payne, 791 S.W.2d 10, 20 (Tenn.1990); see also State v. Hicks, 618

S.W.2d 510, 516, 517 (Tenn. Crim. App.1981); Sup. Ct. Rule 8, DR 7-106(C)(4).

Each of these contested statements clearly expressed defense counsel’s opinion.

The trial court properly sustained the state’s objections to these comments.

Appellant further contends that the trial court showed partiality in limiting

the time defense counsel was allowed to argue. We do not agree. Prior to

argument, the trial court clearly stated that both sides would be allowed only thirty
-24-

(30) minutes for argument. This was entirely within the court’s discretion. Tenn.

R. Crim. Pro 29.1(c). Although Appellant complains that the trial court cut off

defense counsel in mid-sentence without allotting any additional time to finish his

sentence, the trial court similarly terminated the state’s argument when the

prosecution’s time had ended. Furthermore, the additional thirty (30) seconds

afforded the state for its argument was to compensate for the time used by

defense counsel’s repeated objections and subsequent arguments with the trial

court’s rulings. “Trial judges are accorded wide discretion in control of the

argument.” State v. Zirkle, 910 S.W.2d 874, 888 (Tenn. Crim. App. 1995). The

trial court did not abuse its discretion.

This issue has no merit.

B. Prosecutorial Misconduct

Appellant also argues that the state committed prosecutorial misconduct

by referring to the lack of proof that the victim had a motive for fabricating the

rape when the defense was precluded from going into possible motives of the

victim. He also claims that the prosecutor improperly asserted his own personal

opinion during closing argument.

1.

In its summation, the defense argued that the victim fabricated the rape in

order to gain sympathy from her estranged boyfriend. In rebuttal, the assistant

district attorney stated:

Now, he wants you to believe that she is an emotional basket

case, that she did this for some m otive. And I submit to you there

really isn’t a motive, and I’m going to come back to this, but let me

ask you this. Did you hear a single witness get up on this stand, in

all the witnesses that you’ve heard, and say she is the type of

person that does this? She’s done this before. She will make up a

wild allegation to get somebody back. Did Jerry Hunter say that?

Did Terry Alexander say that? Did anyone else [say] that? In all the

supposed boyfriends that she’s had, this person who goes around
6

 Emphasis added to point out specific portions of prosecution’s argument that Appellant finds

objectionable.

-25-

doing this type of thing, did a single person get up here and say

that’s the kind of thing she’d say? No, they didn’t. Not a single

person said that about her. Not a single person said she would

make something like this up. Now, let’s talk about that.

The prosecution’s argument continued:

Now, why didn’t she immediately call the police? Just like he

wants you to believe that there ought to be a climax in every single

rape case, even though that’s not the law, he wants you to say every

rape victim needs to call 911 immediately, or every rape victim

needs to run right over and report this. She gave you a very honest

answer why she didn’t. She said because everybody knows what

a rape victim goes through. And that’s exactly what she’s gone

through; isn’t it? A long preliminary hearing, statements, stayed at

the hospital for hours that night undergoing a rape examination, had

to turn over her clothes, had to turn over her blanket.

. . . . 

. . . She sat on this stand for hours and had to be questioned about

every single incident, had to bring up past boyfriends, every type of

slur that could be thrown against her as to why she was doing this.

She was right in not doing that. Did she do it to be vindictive? She

didn’t even want to call the police. . . .

(Emphasis added).6

2.

Both the state and the defense are afforded wide latitude in arguing their

cases to the jury. State v. Bigbee, 885 S.W.2d 797, 809 (Tenn. 1994); State v.

Zirkle, 910 S.W.2d at 888. However, when the prosecution’s argument goes

beyond that wide latitude afforded, the test to determine whether reversal is

required is “whether the impropriety ‘affected the verdict to the prejudice of the

defendant.’” State v. Bigbee, 885 S.W.2d at 809 (quoting Harrington v. State, 215

Tenn. 338, 385 S.W .2d 758, 759 (1965)).

In reviewing a claim of prosecutorial misconduct during closing argument,

we are guided by such factors as:
-26-

1. The conduct complained of viewed in context and in light of the

facts and circumstances of the case.

 

2. The curative measures undertaken by the court and the prosecution. 

3. The intent of the prosecution in making the improper statement. 

4. The cumulative effect of the improper conduct and any other errors in

the record. 

5. The relative strength 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 reference to Appellant’s lack of

evidence of motive was improper because he was precluded from introducing

such evidence by the trial court. However, contrary to Appellant’s assertion, the

trial court did not restrict the defense’s ability to explore the theory of motive or

fabrication through witness testimony or argument. The trial court informed

Appellant that he would be able to cross-examine the victim concerning her

mental condition, if that condition was relevant to the issues at trial. The trial

court merely prevented Appellant from delving into the victim’s psychiatric history

as a means of embarrassing or harassing the victim.

In any event, the state’s argument was not directed at the victim’s

psychological state, but was in response to defense counsel’s argument that the

victim fabricated the incident. The state argued that none of the witnesses

supported the defense theory. “The bounds of proper argum ent largely depend

upon the facts in evidence, the character of the trial, and the conduct of opposing

counsel.” State v. Coker, 911 S.W .2d 357, 368 (Tenn. Crim. App. 1995). The

prosecution’s argument was not improper.

4.
-27-

Appellant also claims that the prosecution improperly asserted a personal

opinion during its closing argument. A lawyer must not assert his personal

opinion as to the credibility of a witness, or as to the guilt or innocence of the

defendant. State v. Henley, 774 S.W.2d 908, 911 (Tenn. 1989). Furthermore,

it is “unprofessional conduct for a prosecutor in his argument to the jury to

express his or her personal belief or opinion as to the truth or falsity of any

testimony or evidence, or the guilt of the defendant.” Id. at 911.

The prosecutor improperly commented upon the victim’s testimony when

he stated that she gave “a very honest answer” as he was expressing his

personal belief as to the truth of her testimony. However, this was an isolated

incident, and taken in context of the argument as a whole, the comment does not

appear to have prejudiced the Appellant. See State v. Henley, 774 S.W.2d at

911. Moreover, the remaining comments cited by Appellant are not personal

opinion. The prosecution’s statem ents that the victim had to endure slurs to her

character and that she did not want to call the police were proper comments

based upon facts in the record. See Coker v. State, 911 S.W.2d at 368.

5.

None of the alleged prosecutorial errors during closing argument appear

to have affected the verdict to Appellant’s prejudice and do not warrant a reversal

of his convictions. See State v. Bates, 804 S.W.2d 868, 881 (Tenn. 1991). This

issue has no merit.

SENTENCING

In its cross-appeal, the state argues that the trial court erred in sentencing

Appellant to thirteen (13) years, one year above the minimum sentence for a
-28-

Range II offender of a Class B felony. Specifically, the state contends that the

trial court erred in failing to apply certain enhancement factors. Therefore, the

state claims that the sentence was too lenient, and Appellant should have

received a sentence in the middle of the range.

A.

When a party complains of the sentence imposed at trial, we must conduct

a de novo review with a presumption of correctness. Tenn. Code Ann. § 40-35-

401(d). The burden of showing that the sentence is improper is upon the

appealing party. Tenn. Code Ann. § 40-35-401(d) Sentencing Commission

Comments. This presum ption, however, is conditioned upon an affirmative

showing in the record that the trial court considered the sentencing principles and

all the relevant facts and circumstances. State v. Ashby, 823 S.W.2d 166, 169

(Tenn. 1991). However, if the trial court fails to comply with the statutory

principles, there is no presumption of correctness and our review is de novo.

The Sentencing Reform Act of 1989 established specific procedures which

must be followed in sentencing. These procedures, codified at Tenn. Code Ann.

§ 40-35-210, mandated the trial court’s consideration of the following:

(1) The evidence, if any, received at the trial and the sentencing

hearing; (2) [t]he presentence report; (3) [t]he principles of

sentencing and arguments as to sentencing alternatives; (4) [t]he

nature and characteristics of the criminal conduct involved; (5)

[e]vidence and information offered by the parties on the

enhancement and mitigating factors in §§ 40-35-113 and 40-35-114;

and (6) [a]ny statement the defendant wishes to make in his own

behalf about sentencing.

Tenn. Code Ann. § 40-35-210(c) further provides that the minimum sentence

within the range is the presumptive sentence. The trial court must begin with the

minimum sentence and enhance that sentence to appropriately reflect any

statutory enhancement factors that the court finds to be present. Tenn. Code
7

 The trial court also found as an enhancement factor “the nature and circumstances of the

offense which dea lt with th ree s eparate p enetration s of variou s types givin g rise to the offense.” 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.

Strickland, 885 S.W .2d 85, 89 (Tenn. Crim . App. 1993).

-29-

Ann. § 40-35-210(d). After enhancing the sentence, the court must reduce the

sentence appropriate to the weight of any mitigating factors that the court finds.

Tenn. Code Ann. § 40-35-210(e). No particular weight for each factor is

prescribed by the statute, as the weight given to each factor is left to the

discretion of the trial court as long as the trial court complies with the purposes

and principles of the sentencing act and its findings are supported by the record.

State v. Leggs, 955 S.W.2d 845, 848 (Tenn. Crim. App. 1997); State v. Shelton,

854 S.W.2d 116, 123 (Tenn. Crim. App. 1992); Tenn. Code Ann. § 40-35-210

Sentencing Commission Comm ents.

B.

The trial court found that Appellant was a Range II, multiple offender. The

court found as enhancement factors that Appellant had a previous history of

criminal behavior in addition to those necessary to establish the range, Tenn.

Code Ann. § 40-35-114(1); and Appellant had a history of unwillingness to

comply with the conditions of a sentence involving release in the community,

Tenn. Code Ann. § 40-35-114(8). 7 The trial court rejected two (2) enhancement

factors proposed by the state: (1) that the offense was committed to gratify

Appellant’s desire for pleasure or excitement, Tenn. Code Ann. § 40-35-114(7);

and (2) that the crime was committed under circumstances under which the

potential for bodily injury to a victim was great, Tenn. Code Ann. § 40-35-114(16).

In mitigation, the trial court found that Appellant had gainful employment, was an

excellent worker, had the support of members of the community, had conducted

himself as an upstanding citizen in the past and had supported his family and
8

 Neither party contests the applicability of Tenn. Code Ann. §40-35-114(1) and (8) as

enhancement factors. We agree. Appellant has a prior record consisting of convictions for gross 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

offender. Te nn. C ode Ann. § 40-35-114(1). Furthe rmore, Appellant vio lated paro le on a conv iction in

Michigan, demonstrating a history of unwillingness to comply with the conditions of a sentence involving

release into the comm unity. Tenn. Code Ann. § 40-35-114(8 ).

-30-

church. Tenn. Code Ann. § 40-35-113(13). After weighing the enhancement and

mitigating factors present in this case, the trial court sentenced Appellant to

concurrent terms of thirteen (13) years for each conviction of rape.

C.

The state claims that the trial court erroneously failed to consider two

enhancement factors: (1) that the offense was committed to gratify Appellant’s

desire for pleasure or excitement, Tenn. Code Ann. § 40-35-114(7); and (2) that

the crime was committed under circumstances under which the potential for

bodily injury to a victim was great, Tenn. Code Ann. § 40-35-114(16).8 We

disagree.

1.

In State v. Adams, 864 S.W.2d 31, 34-35 (Tenn. 1993), our Supreme Court

rejected the notion that “as a matter of law, every rape is implicitly committed for

the purpose of pleasure or excitement.” The Court recognized that some acts of

rape are “simply acts of brutality resulting from hatred or the desire to seek

revenge, control, intimidate, or are the product of a misguided desire to just

abuse another hum an being.” Id. at 35. The Court held that because pleasure

or excitement is not an essential element of the offense of rape, Tenn. Code Ann.

§ 40-35-114(7) m ay be used to enhance a defendant’s sentence for rape. Id.

However, the state has the burden of demonstrating that the crime was sexually

motivated. Id.; see also State v. Hoyt, 928 S.W.2d 935, 949 (Tenn. Crim. App.

1995).
-31-

In this case the State points to the lack of brutality in this rape, Appellant’s

inquiry of the victim as to whether she liked oral sex, and Appellant’s apology to

the victim as evidence that the rape was committed to satisfy Appellant’s desire

for pleasure and excitement. However, this testimony is so ambiguous as to

Appellant’s purpose in committing this crime, that we are not prepared to hold the

trial judge in error for failing to find that such evidence makes out enhancement

factor (7). This issue is without merit.

2.

Having just argued that Appellant’s benign behavior in committing this rape

indicates it was not a crime of violence, the State, rather inconsistently, argues

that Appellant’s actions in holding the victim around the neck, threatening her

with injury if she did not submit to his advances, and wrapping bedcovers around

the victim’s head indicate the crime was committed under circumstances where

there was great potential for bodily injury to the victim. Tenn. Code Ann. Sec. 40-

35-114(16). While this behavior is reprehensible it does not appear to have

subjected the victim to a risk of bodily injury greater than that ordinarily attendant

in a rape. We therefore again decline to hold the trial court in error for failing to

apply this enhancement factor. This issue is without merit.

D.

We find that the trial court properly rejected the two (2) additional

enhancement factors proposed by the State when it sentenced Appellant. The

state does not contest the applicability of mitigating factors found by the trial court

but suggests that such mitigating factors are entitled to little weight. However, it
9

The Appellant rece ived a very len ient sente nce. How ever, the w eight to be given applic able

mitigating factors is a matter entrusted to the trial court and we are not ordinarily free to second guess that

decision.

-32-

is apparent that the trial court gave great weight to the mitigating factors, as

evidenced by Appellant’s sentence of one (1) year above the minimum sentence.

This was certainly within the trial court’s discretion. State v. Leggs, 955 S.W.2d

at 848.9

For the reasons stated, the judgment of the trial court is AFFIRMED.

____________________________________

JERRY L. SMITH, JUDGE

CONCUR:

___________________________________

GARY R. WADE, PRESIDING JUDGE

___________________________________

DAVID G. HAYES, JUDGE