### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON November 7, 2000 Session
STATE OF TENNESSEE v. ROBERT D . WALSH Appeal from the Criminal Court for Shelby County No. 98-04576 W. Fred Axley, Judge

No. W1999-01473-CCA-R3-CD - Filed January 30, 2001

The defendant, Robert

D. Walsh, was convicted after a jury trial in the Shelby County Criminal court of the aggra

vated sexual batte

ry of a fost

er child who was in his care. He appeals this conviction, alleging various errors i

n evidentiary

admissions, impermi

ssible c omment on the evidence by the trial court, and improper sentencing. We modify the defendant’s sentence to Range I classification and remand for correction of a clerical error in the judgment form. Otherwise , the judgment

of the trial court is affirmed. Tenn. R. App. P. 3; Ju

dgment of the Crim

inal Court is Affirme

d as Modified, Reman

ded.
J AMES C URWOOD W ITT , J R ., J., delivered the op inion of the court,

in which D AVID H. W ELLES and T HOMAS T. W OODALL , JJ., joined. William D. Massey, Lorna S. McClusky, for the Appellant, Robert D. Walsh.
Paul G. Summers, Attorne y General & Reporter; Mar

k E. Davidson, Assis

tant At torney Gen

eral; William L. Gibbons, District Attorney General; Julie Mosley, Assistant District Attorney

General, for the Appellee, State of Tennessee.
OPINION

Robert D. Walsh stands convicted of aggravated sexual battery of a foster child who lived in his home from 1994 until 1996. He received his conviction at the conclusion of

a jury trial inthe Shelby County Criminal Court. He was therea fter sen tenced by the trial court to serve ten years at 100 percent. I

n this direct appeal, he raises challenges to the admission of evidence, to the tria l court’s alleged commentary on a defense witness’s testimony , and to the trial court’s det erminationthat the offense occurred after July 1, 1995 and therefore required 1 00 percen t sentence service. We have heard the parties’ oral arguments and have reviewed th e record, the briefs and the applicab

le la w. We conc lude that no error requiring reversal occurred during the defendant’s trial. However, we do find error in the trial court’s classification of the defendant as an1 It is the policy of this court to avoid use of the names o f minor victims of sex crimes.
-2- offender to which 100 percent service of sentence applies, and wetherefore modify the defendant’s sentence to Range I service at 30 percent. We also remand for correction of a clerical error in the date of the offe

nse as recorde

d on the judgment f

orm.
Inthe light most favorable to the state, the evidence at trial demonstrated the following. Around Christmas 1994, the eight-y ear-old victim 1 and her four-year -old si ster were placed as foster childre

n in the home of Robert and

Lou Walsh. The victim was unable to provide
a precis e t ime frame, but approximately six months later, in the summertime, the defendant had a sexually oriented conversation with the victim in whi ch he told her that

it would be permissi

ble under the Bible for him to have sexual relations with her, although it would be wrong for him to have sexual relations wi

th an animal. I

n her testimony

, the victim

recounted that “

pretty clos

e” in time after this conve rsat ion, the defendant rubbed the victim up and down along his body until he ejaculated. The victim testified that after this incident, the d

efendant asked

the victim

to touch his private parts “[m]aybe

a couple of weeks after he had first done it to me.” Over time, the defendant engaged in various acts of fondling the victim, having her masturbate him, and performing oral sex
onher. He attem pted vagi nal pe netration on one occasion, anally penetrating her in the proc ess. The victim testified tha

t the defendant sa

id they both would go to jail if she told anyone about the sexual acts. The defendant also told the victim that he would marry her when she was older

and his wife was dead, and they would have children togethe r.
InDecember 1996, the victim and her sister returned to the home of their biological mother. The v ictim did not report the abuse until approximately eleven months later, and an investigation

commenced. Duri

ng the investig

ation, the victim g

ave at least two st

atements implicating the de

fendant to child w

elfare and law

enforcement of

ficials.

To counter the state’s evidence, the defendant presented proof aimed at showing that the vic tim was sex ual ly kn owl edge abl e beyo nd her years as well as untruthf

ul. The defense attempted to highlight alleged inconsistencies between the victim’s pr ior statem ents and her trial tes tim ony. The defense also presented proof to counter various claims made by the victim, such as that she had been alon

e with the defendant

in his bedroom, that the defendant’s wife often slept on the living room sofa and not in the bed with the defendant, that t he victim and the defendant were sometimes alone together, that the defendant bathed the victim, and that the victim and the defendant went swimming alone together after dark in the backy ard pool.
The defendant testified an d fl atl y d enied any s exual misconduct wit

h the victim. Three character witn

esses testified on

behalf of the def

endant before th

e tria l co urt exercised its discretion to limit further cumulative proof of this nature.

The jury co nsidered two charges against the defendant – one count of agg ravated sexual battery

for a specifica

lly-descr ibed masturbation

incident and one c

ount of rape of a

child for2 Although this s tatement is somewh

at ambigu

ous in i tself , it is appa rent up on review of the record that the defense was requesti

ng an instr

uction that

the limit ed purpose of the evi

dence was to show t

hat the victi m had made prior consistent statements.
-3- the attempted vagina l penetratio n that resulted in anal penetration. After deliberating, the jury returned a guilty verdict for agg ravated sexual battery and a not guilty verdict for rape of a child.
At the subsequent sentencing hearing, the trial court imposed a mid-range sentence of ten years. The court found that the offense occurr ed after July 1, 1995, thereby mandating 100 percent service of this sentence.

The defendant th

en filed this appe

al.

I
The first issue we con

sider iswhether the tria

l court properly

admitted the testimony of social worker Carol Smith regarding a r ecorded sta

tement she took from the victim and the admission of an audiotape of the interview.

Ondirect examination, the victim testified that she had talked with Ms. Smith after first reporting the abuse. She testified that the questions Smith asked were basically the same as the
ones asked by the prosecutor at trial, and that to the best of her memory, she

had answered them the same way. She acknowledg ed talking to othe

r individuals, as we

ll, and answering their questions the sam e way.
O ncross-examination, the victim was asked several questions about a prior s tatemen t she had given to Serg

eant White

of the Sheriff’s Department. Counsel read questions and answers to the witness and

a sked her whether she had given the answers reflected in the statement. The overall tenor of cross-examination

was an attempt to di

scredit the victim

by inquiry about purported inconsistencies in the details of her testimony.

Later during its case-in- chief, the state called Carol Adams of the Department of Children’s Services to the stand. On a defense hearsay objection, the cour t conducted a jury -out hearing and determined that Ms. Smith’s testimony regarding the victim’s prior statements to her about the defendant’s

sexual abuse of the

victim was admissibl

e as prior consist

e nt statem ents to rehabilitate

the victim after her credibility had be en attacked on cross-examinat

ion. The defense asked for a limiting instruction that the evidence could be considered “only for re buttal and not for the truth.” 2 The court

agreed to give such an instruction; however, the instruction as requested was never given.
After

the court ruled that Ms. Smith’s testimony was admissible to rehabilitate the victim after impeachment, Ms. Smith proceeded to testify about the statement the victim gave to her,
as well as the stateme

nt the victim

gave to Sergeant White in Ms. Smith’s presence less than a week3 The transcript itself was never admitt

ed into evidence.
-4- later. Ms. Smith testified that the victim made corrections to a written version of one of the two statements,

that the victim was consistent in both interviews, and that the victim provided a w ealth of d etail in her state

ments. On cross-e

xamination, defens

e counsel asked f

or a copy of

th e tap e recording of her interview with the victim. When the witness said she did not have it with her, court
was recessed so that

the witness could tr

avel to her offic

e to retrieve the

tape and so

that the defense could review it.

When cross-examina

tion resumed, defense couns el inquired at length about variation s between the ta pe and the transcription of it. The witness acknowledged that there were variance s and explained that she d

id notherself prepare the transcribed version. Defense counsel procee ded to inquire about specific variances between the transcript and the tape itself as well as specific factual assertions o f the victim in her prior statement to the witness. Counsel also inquired about the victim’s statements during the interview with

Sergeant White. O

n redirect, th

e state moved

to introdu ce t he tape recording of the victim’s interview with Ms. Smith on the basis that the implication from cross-examination was that things had been omitted from the transcription of the tape. The defense beg

an stating an obje

ction to the admissio

n of the tape but the

n with dr ew it. However, before the tape was played

for the ju

ry, the d efense objected that “there are things that weren’t testified in here

that’s on the tape.” The court overruled the objection, finding that the defense had placed the tape’s cont ents at issue by questioning whether there were inconsistent sta tem ent s of

the vic tim on t he t ape. The reaf ter , th e ta pe w as p laye d fo r th e ju ry.
At the concl usion of Ms. Smith’s testimony, the court instructed the jury that her testimony about the statement

taken by Sergeant White, the transcript of the interview from which Ms. Smith testified, 3 and the t ape of the inte rview “are not offered for the truth of the matters contained therein, but are

offered to show that such interviews and/or statements cause

d this witness to take further action.” The defense objected to the instruction, although the precise basis of the objectionis unclear from the record. The same instruction was given at the close of proof, and no further objection was made.

Inhis brief, the defendant has failed to cite any authority whatsoever for

the position he advances reg

arding the admissibility of this evidence. For this reason, the issue is waived. Tenn. R. App. P. 27(a)(7); Tenn. R. Ct. Crim. App. 10(b).

E venif the issue were properly before us, we would be unper suaded o f reversibl e error.
A witness’s prior consistent statements are inad missi ble as corroborative evidence of the witness’s te

stimony unles s there has been an i mpe achi ng at tac k on the wit nes s’s tes tim ony. State v. Meeks , 867 S.W.2d 361, 374 (Tenn. C rim. App. 1993) . When a witness’s credibility has been impeached

with a prior inconsistent statement, a prior statement that is consistent with her trial testimony may be used to corroborate the te stimony and thereby rehabilitate her c redibility. Id.4 In his brief, the defendant a rgues that trial counsel was under a mis taken i mpression

that a pa

rticul ar portion of the prior statement was inconsis tent, when in fact,

it was not. Therefore, he reasons, the v ictim was neve r actually impeached. Although we question the so undness o f this argument, it is unn ecessary that we devote len gthy analysis to it. An attempt to impeach a witness is not requir ed to be successful before a prior consistent s tatement will be admitt ed. Rather, wha t is critical

is whether

the attempt wa s made. See State v. Da niel D. Naug hton, Sr. , No. 02C01-9612-CR00449, slip op. at 9 (T enn. Crim. A pp., Jackso n, Mar. 1 8, 1998 ), perm. app. denied (Tenn. 1 998). In this c ase, i t is abunda ntly clear from the entire record that t he defense theory was that the victim was no t truthful in her claim of sexual abuse at the han

ds of the defendan

t and that port

ions of her

testimony were inconsistent with her prior statements and other evidence. In closing argum ent, counsel w ent so far as to use the word s “inconsistenc y” and “inco nsistencies” in describing the vic

tim’s testi mony and her

prior statements

and argued that

the inconsisten cies amou nted to reaso nable doubt. Because it is apparent that an attempt was made to i

mpeach the v

ictim w ith pu rported inconsist

encies, her credibility was su bject to reh abilitation via he r prior con sistent statement. See id.

5 Only the audiotape is properly before this court. The transcription was not received in evidence at the trial. It was recei

ved in evi

dence at t

he motion f

or new tri

al heari ng, but t hat exhi bit was n ot transmitted to th is court as a part of the appellate record. A document which purports to be a copy of the t

ranscripti

on appears in the a

ppellate record as
an attachment to a memor andum in su pport of the motion for n ew trial. How ever, the do cument whic h was actually received by the trial court is not before us, and as su ch the purported co py of the tr anscription is before us as an attachment to a pleadin g, but not as ev idence. See Tenn. R. App. P. 24(a) (appell ate record shall

contain “t

he original of any exhibit

s filed i n the tria l court”); State v. M arvin Ka le Ferguson , No. 03C01-9406 -CR-00234, slip op. at 6 (Tenn. Crim. Ap p., Knoxvill

e, July 12, 1995) (exh

ibits to a pleadi

ng are not

evidence o f facts contained therein), perm. app. denied (Tenn. 1995). -5- This was a case in

which the victim’s

credibility

was essential to

the state’s case, and for that reason, the defense mounted a s trong atta ck. The victim was

subjected to rig

orous crossexamination about, among othe r subjects, incons

istencies b etween her testimony and her prior statement to Sergeant White . Once this cross- examination had tak

en place, the sta

te was entitled to rehabilitate the victim’s credibility by demonstrating that she had made a prior statement that was consistent with her trial testimony. See id

. Thatevidence came in the form of Ms. Smith’s testimo ny about the victim’s prior statements. We see no error in the admission of Ms. Smith’s testimony for the pu

rpose of r ehab ili tat ing t he v ict im’ s cr edi bil ity. 4 Cf. State v. Livingston , 907 S.W.2d 392, 398 (Tenn. 1995) (after victim’s credibility was attacked by inquiring whether

she had told a different story to mother and aunt, victim’s cousin’s testimony a bout what victim told her about sexual enco unter s with defendant was admissible for corroboration as prior consistent statement); State v. James Webb , No. 02C01-9512-CC-00383, slip op. at 16-17 (Tenn. Crim. App., Jackson, Feb. 27, 1 997) (DHS employ ee’s testimony

about victim’s prio

r report of sexual

abuse admissible

as prior consistent statement aft er victim w as cross-examine d on issues pertain

ing to truthfulness

of her accusation against defendant and questioning suggested sexual activity with other individuals), perm. app. denied (Tenn. 1997).
The question which remains is whether the audiotape of the interview with Sergeant White was properly

admitted. In hi

s cross-examinatio

n of Ms. Smith, defen

se counsel inquire

d in great detail about certain portions of the audiotapewhich apparently were not transcribed. 5 As part of the effort to

demonstrate the victim’s purported inconsistencies, defense counsel made much of6 Obviou sly, the victi m is not responsi

ble for any var

iance between the transcript and tape. However, the manner in which coun sel presented the absence s from the transc ript h ighligh ted purported inconsistencies. For example, the victim testified that

she wore a one-piece bathing suit and that s he was not allow ed to wear a two-piece bathing suit. The transcr iption was consisten t. Howeve r, counsel’s questioning of Ms. Sm ith suggested tha t the victim had first sa id in her statemen t that she wore a two-piece b athing suit but then said she wor e a one-pie ce bathing su it.

7 We have cons idered the p ossibility that the witne ss had the trans cription be fore her and referred to it extensively during her testimony. Howe ver, whether this happened is not evident upon the record before us.

8 Defense counsel laboriously cross-examined Ms. Smith about particulars of t he statement.

It appears tha

t at times, defense co unsel’s questioning tended to confuse th e witness becau

se counsel asked questions in succession whi

ch dealt with unrel

ated aspects of the victim’s prior state ment. This mode of cross-examination obfuscated the rehabilitati ve nature of the w itness’s testimony o n direct abo ut the victim’s prio r statement.
-6- some matters which were on the tape but not part of the transcription. 6 The mode of counsel’s questioning sugge ste d that the transcription was incomplete and somehow misleading. While we do not appreciate

the relevance that defense counsel apparently be lieved existed in the differences between the transcript and the tape of Ms. Smith’s i nterview with the victim, 7 we nevertheless decline to find error in the tape’s admission.

The tape of the interview Ms. Smith conducted with the victim was a prior consistent statement of the vi

ctim. As such, it qua

lified for admissio

n for rehabilitat

ive purposes just a

s Ms. Smith’s testimony did. See State v. Belser , 945 S.W.2d 776, 786-87 (Tenn. Crim. App. 1996) (tape of defendant’s prior consistent statement admissible to rehabilitate his trial testimony after he was impeached

on cross-examination with excerpts from prior s tatements). Additionally, at times counsel’s cross-examination about variances between the transcription and

the taped stateme

nt itself
as well as his questioning about particulars of the victim’s prior statement took portions of her statement out of their overa

ll context. 8 This court

has said that when

cross-examination about a prior statement tends to distort the m

eaning of the sta

tement, the portion

s of th e st atement necessa ry to place the excer

pts in cont

ext may be introduced. See State v. Boyd , 797 S.W.2d 589, 593-94 (Tenn. 1990) (“Where sp

ecific questions

and answe

rs taken o ut of conte

xtdo not convey the true picture of the prior statement alleged to be inconsistent , it is unfair to permit reference to isolated, unexplained respo

nses by the w

itness and there i

s no error in

allowing the statements to be placed incontext.”). The statement wa s properly a

dmitted for rehab

ilitati ve purposes an d to place excerpted portions of the vic

tim’s prior stateme

nt into overall con

text.
The final aspect of thi s issue pertains to the limiting instruction given by the trial court. As discussed above , the proper instr

uction would have b

een that ev idence of the victim’s prior consistent statements could not be considered as evidence of the matters asserted therein but could be considered in evaluating the victim’s credibility. See State v. Livingston , 907 S.W.2d 392, 395 (Tenn. 1995) (child sex abuse victim’s prior statement admissib

le as corrobora

tive evidence if it satisfies prior consistent statement rule, admissible as substantive evidence if it satisfies a hearsay exception). Unfortunately, that instruction was not given. The court did properly instruct the jury that it could not consider the victim’s prior statements as substantive evidence. See id. However, it erroneously

instructed the jury

that the statement

s were admitted to

show what caused

Ms. Smith9 The defendan t claims that by instru cting that the evid ence was ad mitted to show why Ms. Smith took f urther action, the trial court wa s conferring re liability and cred ibilit y on t he statement because the jury migh t infer that Ms. Smith believed the statement and therefore acted upon it. Assuming arguendo that the jury’s thought process is as the defendant posits, we still see no harm. If the jury had been properly in structed, it would have cons idered the eviden

ce as rehabilitative o f the victim ’s credi bilit y. If the jur y used th

e evidence

as theor

ized by t

he defens e, it w

ould be assuming the victim w as credib le and therefore Ms. Smit h took furthe

r action. Ei

ther way, the net result

would be the
same. -7- to take further

action. We hold that

this error was entirely harmless to the defendant. The jury was told not to consider the

evidence substa

ntively . Moreover, the proper use of the evidence, rehabilitating the victim’s cred ib ility, benefitted the state. By the improper por tion of the instruction, only the state, not the defendant, stood to suffer harm. Furthermore, we are at a loss to fathom any harm that the defendant would suffer from considering this evidence as demonstrating what caused Ms. Smith to take further action. 9

II

The defendant raises four evidentiary issues which he acknowledges

are cognizable only as plain error.

As a general proposition, consideration of issues which arenot raised in the trial court proceedings is waived

on appeal. See Tenn. R. App. P. 3(e ), 36(a); State v. Killebrew , 760 S.W.2d 228, 235 (Tenn. Crim. App. 1988) . However, if the error is such that it affects a substantial right and is so egregious that it

strikes at the “fairness, integrity, or public reputation of judicial procee dings,” it may be recognized as plain error. State v. Adkisson , 899 S.W.2d 626, 639 (Te nn. Crim. A pp. 1994); see alsoTenn. R. Crim. P. 52(b).

The Tennessee Supreme Court has recently adopted this cour t’s standard for evaluating whether an alleged error is proper for notice as pla in error: (a) the record

must clearly

establish what occ

urred in the trial

court; (b) a clear and

unequivocal rule

of law must have be

en breached; (c) a substantia

l right of the ac

cused must have be

en adversely

affected; (d) the accused did not waive the issue for tactical reasons; and (e) consideration of the error is “necessary to do substantial justice.”
State v. Smith , 24 S.W.3d 274, 282-83 (Tenn. 2000 ) (quoting Adkisson , 899 S .W.2 d at 64 1-42) . In Smith , the supreme court emphasized that “all five factors must be established by the recor d before this Court will recognize the existence of plain error, and complete consideration of all the factors is not necessary when it is clear from the record that at lea st one of the f

actors cannot be established.” Id ., 24 S.W.3d at 283.
A.-8- Inthe first plain error issue, the defendant attacks the trial court’s admission, absent objection, of

the victim’s testimony about the time frame of the offense. He claims that the vic

tim
was an incompetent witness who lacked pers onal kn owledge of the facts to which she testified. Spe cif ica lly, he attacks her te

stimony beca

use she responde

d in part to

the state’s questioningabout th e time f rame with phrase

s such as “I th

ink,” “I gu

ess,” “I don’ t really re

member,” and “I

really couldn’t tell you.” T

he d efendant goes on to complain that the state’s leading questioning of the victim in view of her inability

to recall the time frame with precision suggested the desired answers to the victim.

We focu s first on t he Adkisson requirement that a clear and equivocal rule of law muchhave been breached before plain error will be noticed. The defendant posits that the clear and unequivocal rule of law

breached here is that a witness must testify from personal knowledge

. See Tenn. R. Evid. 602. The defendant has failed to convince us, however, that the victim’s testimony
was not based upon her own personal knowledge. Obviously, th e victim perceived the se

xual abuse she suffered

at the hands of the defendant with her own senses. See State v. Boling , 840 S.W.2d 944, 949 (Tenn. Cri m. App. 199 2) (witness is incompe tent unles s he has kno wledge of the facts throu gh
one or more of his five

senses; victim who claimed no recollection of crime met personal kn owledge test). The extent to which her testimony wa

s ambiguous is

relevant to the weight to be afforded her tes tim ony, not its admissibility. See State v. Robinson , 971 S .W.2d 30, 44-45 (Tenn. Crim. App. 1997) (ambiguity

in witness’s identif

ication of defen

dant was matter to

be consi dered by jury

in weighing evidence, rather than a

question of admissibility based upon lack of personal knowledge).
Wi th r espect to the lea

ding question com

ponent of the def

endant’s complai

nt, this court has long recognized the discretion afforded a trial court in allowing leading e xam ination o f minor victims of sex crimes. See, e.g., Swaffor d v. State , 529 S.W.2d 748, 749 (Tenn. Crim. App. 1975).

Because

we are unconvinced that a clear and unequivocal rule of law was breached in this case, plain error analysis must fail. See Smith , 24 S.W.3d at 282-83.

B.

Ina similar vein, the defenda n t challenges as plain error the admission, absent objection, of the victim’s testimony tha t sh e feared for the safety of other foster c hildren in the defendant’s care. The defendant c omplains that this

evidence was irrelevant and unfairly prejudicial and that the victim lacked per sonal knowled ge of the presence of other foster children in the defendant’s home.

The victim testified on direct examination about the presence of other female foster children in the defendant’s home and abo ut her concern for them in the context of explaining her
reasons for ev e ntually coming forward with her accusation aga inst the defendant. Thus, the evidence appears at least margina

lly relevant. The victim’s testimony does not demonstrate lack of personal knowledge; at most, it is ambiguous whether she had personal knowledge that foster children lived10 Other evidence o f record sup ports a conclusion that at least one of the other foster chil dren was placed in the defendan t’s home be fore the victim a nd her sister re turned to their mother ’s care. Fur ther, aft er the vict

im and her

sister returned to their moth

er, there wer

e various vis

its and contac

ts between th

e victim and t

he defendant at which other members of the defendant’s household were present. T he last such co ntact was sho rtly before the vic tim firs t reported the abuse, an d accord ing to the defen dant’s wife’s testimo ny, two of the foste r children we re present fo r this contact.

11 The defendant claims that the st ate’s motive in elici

ting this evidence “seems t o have been to invite the jury to speculate ab out the safety of the se unidentified children by su ggesting that the d efendant wa s a dangero us child molester at large i n the community .” The defendant does not make an atte mpt to subs

tantiate this asser

tion wi th cit ation to any porti

on of closing argument or other portions of the tri

al record which woul

d lend any credence t

o this all eged motive.
-9- with the defendant. 10 Fin all y, the defendant has cited no decisional authority to support a conclusion that the evidence

was unfairly

prejudicial, and we are unconvinced that it was so. 11

For these reasons, the defendan t has faile d to persuade us that any clear and unequivocal rule of law has been breached. See Adkisson , 899 S.W.2d at 641. Pla inerror analy

sis is therefore inappropriate. See Smith , 24 S.W.3d at 282-83.
C.
The defendant also alleges plain error in allowing the state to ques tion the de fendant’s wife whether she knew that the defendant had asked the victim to fellate him. The defendant’s argument falls far short of the mark in convincing this court that this q

uestioning amoun

ted to plain
error. Most significantly, the defendant has cited no authority whatsoever for the proposition that this questionin

g was improper . As such, he has failed to demonstrate the breach of any cle ar and unequivocal rule of law. See Ad kisso n , 899 S.W.2d at 641. L ikewise, he has th

ereby fai led to identify any substantial right which has been breached. See id. Therefore, w e decline to addr

ess this allegation as a matter of plain error. See Smith , 24S.W.3d at 282-83.

D.
The defen dant’ s fourth and final plain error allegation pertaining to evidentiary matters is that the c ourt improperly allowed the victim’s sister to testify to matters which had no purpose other than to bolste

r the victim’s testi

mo ny. The de fendant complains that the victim’s sister was allowed to testify that she had been told by the vic tim what the defendant had done to the victim, thatshe was present during a “skinny dipping” discussion with the defendant, and that the victim was believable. The defendant claims that the victim’s sister thus had no relevant or material testimony to offer and that she merely provided the state with an “opportunity to place before the jury
aneight year old girl who, as the sister of the alleged victim, might provide a graphic picture of the alleged victim at age eight . . . .”

The victim’s younger sister was as ked near the beginning of her testimony if the victim had told her about what

happened to the vi

ctim, but no hearsay

specifics were

elicited. This query served to establish that

the witness

had some basic knowledge of the matter on trial. Further,12 Although this evidence of sexual miscond uct was n ot th e basis of t he offense f

or which the def

endant was ultimately convicted, i t was present

ed prior to the s

tate’s el ection of off

enses upon which

it sought conv iction. See genera lly State v. Rickman , 876 S.W.2d 824 (Tenn . 1994) (in case i n which charge s

pans a period of ti

me, state may offer evidence o f multiple sex crimes allegedly occurring during t ime frame of indictment so long as it ultima tely elects at close of its pro of-in-ch ief the specific incid ent upon w hich it seeks co nviction). Fo r sex crimes c ommitted by a defendant within the time span o f an indictmen t, Rickman is a limited exception to the general rule of inadmiss

ibili ty of a defenda nt’s other crime s, wrongs or a cts of Tenn essee Rule o f Evidence 404(b)

. Id . at 829. -10- the next question asked was whethe r the defendant h

ad done the same th

ings to the witness , to which the witness rep lied he had n ot. Despit e the defenda nt’s claim that this was imperm issible b olstering, we fail to see evidentiary error in this context.

The victim’s sister also testified briefly about a “skinny dipping” discussion that took place when the defendant, the victim and the witness were in the backyard s wimming pool one evening. On direct examination, the victim testified about sexual misconduct and s kinny dipping that took place when she and the victim were in the pool alone together. She was vigorously crossexamined about when the wading

and swimming pools that the defendant and his wife had in the back yard were obtained and in use, the times of day at which the swimming pool was used, and the lighting and

degree of privacy in the back y ard. She was also asked whether her sister was present durin g the incidents in the pool, and she stated in response that her sister was usually ins ide wit h Mrs. Walsh; however, her sister had stated that she recalled being present on one occasion when the defendant asked the victim to remove her bathing suit. When the victim’s sister was called to the stand, she was asked about this and recounted a discussion during an evening swim with the victim and the defendant in

which the defendant said something about skinny dipping and then explained what it was when the witness asked him.

Again, the defendant claims this was improper bolstering . We view it d iff eren tly. First of all, “bolstering” generally refe rs to the situation in which the state offers a prior consistent statement of the victim to enhance the credibility of her testimony at trial. See, e.g., State v. Hodge , 989 S.W.2d 717, 725 (Tenn . Crim. App. 1998). Wh ile bolstering is a

llowed in

l imited circumstances, see id. , the victim’s sister’s testimony did not encompass a pri or con sistent statement, so a bolstering analysis is inapposite.

Rather, this is a situation in which the state

properly offered corroborative evidence

. Through the victim, the stat e offered evidence of sexual misconduct in the swimming pool. 12 The defense challenged various particulars of the victim ’s claim th rough brisk cross-examination. The state then offered the victim’s sister’ s testim ony that she w as present during

an evening swim i

n which the defendant discussed skinny dipping. The evidence was re levant and proper.
The defendant also quarrels with the admission of the victim’s sister’s testimony that her sister was believ

able. The defen

se engaged in

a searching c

ross-examinati

on of this wi tness13 Direct exa mination is co vered in five p ages of the tran script.
-11- whichspans approximatel y 22 pages

of the transcrip

t. 13 Near the end of

this probe, counsel asked, “[D]id you ever see him ever [sic] do a bad touch? That you ever saw yourself? Not what somebody told you?” The witness responded, “No, sir. I don’t – I don’t – I neve

r saw him, but I can believe [the victim].” Again, this testimony did not qualify as bolstering. See id. Moreover, we do not see how this response to cross-e xamination, t he general te nor of which had b

een to very

thoroughly question the witness about all aspects of he

r direct examinati

on testimony,

prejudiced the de

fendant. Add iti ona lly, in the context i n which this statement was made, it was not improper character evidence. See Tenn. R. Evid. 608.

Fin all y, we are compelled to comment that the defense has

failed to substanti

ate its cla im t hat the sta te o nly o ffer ed t his wit nes s to inf lam e th e pre jud ice s an d sym pat hie s of the jur y.
Because we see no error in theadmission of the victim’s sister’s testimony, no clear and unequivocal rule of

law has been breached. See Adkisson , 899 S.W.2d at 641. Moreover, no substantial right of the defendant has been affected. See id. Plain error an alysis is t herefore inappropriate. See Smith , 24 S.W.3d at 282-83.

III Next, the defendant challenges a statement made by the c ourt after the testimony of the defendant’s wife as an unfair comment on her testimony. The defe ndant concedes that there was no objection at trial but urges us to grant relief as a matter of plain error.

As the defendant correctly argues, ar ticle VI, section 9 of the Tennessee Constitution declares that trial judges "shall not charge juries with respect to matters of fact, butmay state the testimony and declare the law."

Inthis case, the trial court’s statement in question came at the end of the d ay, just before court was recessed for the evening. The defendant’s wife had be en excused from the stand, six exhibits had been pa

ssed to and viewed by the

jury, and a brief bench conference ha d transpired. The court then said, “Good enough. It’s quitting time. I want you back in here in the morning. See you’re a good jury. You l isten to ev erything. Whether it’s real or not.” The cour

t then went on to instruct the jury when to return and gave the usual admonitions abou t not disc ussing the case and reporting any

irregularitie

s to the court.

Inthese circumstances, we are unpersuaded that the court’s statement was a comment
onthe credibility

of the defendan

t’s wife, the last w

itness of the day

. Moreover, eve

n if it were, the law does not

require that every comment by a judge that is deemed improper result in a reversal. See Tenn. R. App. P. 36(b) ("

A final judgment f

rom which relief

is available and oth

erwise appropriate-12-

shallnot be set aside unless, considering the whole record, error involving a substantial right more probably than not affected the judgment or would result in prejudice to the judicial proc ess.").

For thes e reasons, the defendant has not convinced us that a clear and unequivocal rule of lawwas breached or that a substantial right was affected. See Adkisson , 899 S.W.2d at 641. Plain error review is not appropriate. See Smith , 24 S.W.3d at 282-83.

IV
Fin all y, we consider whether the def enda nt was properly sentenced to 100 percent service of his ten-year sentence, rather tha n 30 percent as a Range I offender.

Tennessee law pro vid es t hat cert ain off ens es, inc lud ing a ggra vat ed s exu al b att ery, whichw ere committed on or after July 1, 1995, require 100 percent service of the resulting sentences,

with no more than fifteen percent reduction for sentenc e credits earned and retained. Tenn. Code Ann. § 40-35-501(i)(1), (2) (Supp. 2000). For offenses committed prior to July 1, 1995,
no such provision existe

d, and therefor

e, the release e

ligibility pe

rcentage wou

ld be determined by the usual Range classification system established by the Criminal Code. See generally Tenn. Code Ann. § 40-35-105 to -108 (1997). For a Range I offender, the r elease eligibility perc entage is 3 0 percent less sentence reduction credits earned and retained. Tenn. Code Ann. § 40-35-501(c) (Supp. 2000). The question here is whether the offense occurred prior to or followi

ng the effecti

ve date of section 40-35-501(i).

At the defendant’s sentencing hearing, the trial court found that the defendant’s offense was committed after the 100 percent provision took effect. The defend ant dis agrees. Resolution of the iss

ue turns entirely

upon the facts pre

sented at trial.

In determining factual matter s relative to sentencing a defendant, the standard of proo f for the trial court is by preponderance of the evidence. See State Dennis E. Bondon , No. 02C01

- 9809-CR-0028 0, slip op. at 3 (Tenn. Crim. App., Jackson, Dec. 13, 1999) (noting that trial court found facts relative to sentencing by preponderance

of the evidence

); State v. Jeffrey Lynn Cameron , No. 03C01-9410-CR-00390, slip op. at 6 (Tenn. Crim. App., Knoxville, Apr. 15, 1996) (on de novo review, preponderance

of evidence did

not supportapplication of a specified enhancement factor). Onappeal, the reviewing court must indulge a presumption that the trial court’s determinations are correct. Tenn. Code Ann. § 40-35-401(d) (1997). However, the presumption of correctness does notapply (1) to determinations made where the record fails to reveal that the trial court considered the sentencing principles and all relevant facts and c irc umstances; (2) to the trial court’s legal conclusions; and (3) to dete rminatio ns which are predicated upon uncontroverted facts or documentary

evidence. See, e.g., State v. S mith , 898 S.W.2d 742, 745 (Tenn. Crim. App. 1994). Onappeal, “[t]he burden of showing that the sentence is improper is on the appellant. ” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991).14 The state ess ential l y reads the vi ctim’s t estimony as a sequential narration of the various a

cts of sexual miscondu ct. While a reading in this manner would come closer to supp orting a finding by a preponderance of the evidence that the of

fense occurred on or a fter July 1, 1995, we disag ree that t he victim’ s testi

mony was a sequenti

al narration.
-13-

Inthis case, the facts themselves are not in dispute. There is not conflicting evidence to be resolved regarding whether the offense occurr ed o n or after July 1, 1995, such as where one witness testifies that the o ffense occurred prior to that date and another testifies that it occurred later. Rather, the task of the tria l court in this

case was to consider whether all of the evidence supported
a conclusion that the

offense occur

red on or after t

he effective da

te of the 100 percent

service statute. Because the trial court’s determination was predicated upon interpretation of uncontroverted facts,
our review is de novo

. See Smith , 898 S.W.2d at 745; cf. State v. Burns , 6 S.W.3d 453, 461 (Tenn. 1999) (issues involving mixed questions of law and fact are reviewed de novo on appeal).

The defendant was charged with aggra v ated sexual battery of the victim occurring between December 16, 1994 and December 20, 1996. When the state made its election, it did so by specifying

an instance of sexual c ontact wit hout usin g a time period as part of the description of the
occurrenceelec ted. At trial, the victim testified that she and her sister moved in the defendant’s home around Christmas. The proof established that this was in 1994. The victim testified that about six months later in the summertime, the defendant began talking to her about

sex and the Bible. T

his
was the first

thing that the defendant did that made the victim uncomfortable. Incidents of sexual contact followed. The first such inciden t that the victim

recalled in her trial testimony was when the defendant rubbed the victim against his genitals. Although the vict im could not pinpoint a

precise time when the first physical contact occurred, she said that it

was “[p]retty close” to the conversation about the Bible. The victim then recounted a variety of sexual acts to which she was subjected by the defendant, whic

h included fiftee

n to twenty

similar incidents of body rubbing, as well as acts of cunnilingus, multiple acts of digital fondling, attempted vaginal penetration, and anal penetration. The victim also recoun

ted that the defe

ndant asked her t

o touch his private

parts and had guided her inmasturbating him. She said that this occurred “[m]aybe a couple of weeks after he had

first done it to me.”
Relative to the date of the offense, the court found at the sentencing

hearing, “Body rubbing began before July 1, 1995. Masturbation occurred a fter. It’s in the transcript.” Upon de novo review, we are persuaded that the trial court’s finding that the offense occurred on or after July 1, 1995 is unsupported by a preponderance of the evidence. This finding is speculative, at best. The victim’s testimony placesthe Biblical sex conversations in June of 1995. Sexual contact began

“[p]retty close” to these conv ersations. While it is

certain that the incident of aggr a vated

sexual battery

prosecuted in this

case occurre

d after the Bibli

cal sex conversat

ions, nothing in the re cord places the i ncident in chrono

logical context wi

th other acts of se

xual abuse such that i t may be concluded with precision that the offense occurred a fter July 1, 199 5. 1 4 Spe cif ica lly, it is not clear from the record to which of the various acts of sexual abusethe victim
was referring as the one in which the defendant “had first done it to” her which was shortly followed-14-

by the offense on trial. One might conclude t hat the victim was referring to the first time the defendant engaged in“body rubbi

ng.” Equally

, one might concl

ude that the victim w

as referring

to the allegation of a

ttempted vagina

l penetration tha

t resulted in anal p

enetration or to th

e first incident of digital fondling.

Withthe record demonstrating that the defendant is a Range I of fen de r, we must modify the trial court’s imposition of 100 percent service of sentence to 30 perce nt service.
Fin all y, we have discerned an error in

the judgment form which requires correction. See Tenn. R. Crim. P. 36 (clerical mistakes in judgments arecorrectable at any time). The judgment reflects that the offense

occurred “between 12-16-96 & 12-20-96.” The defendant was c

harged with aggravated sexual battery occurring between December 16, 199 4 and December 20, 1996.

For these reasons, we modify the defendant’s sentence to Range I

classification and remand for entry of a

judgment which reflect’s this court’s modification as well for as correction of the clerical error

inthe date of t he offense. I n all other respe

cts, the judgment

of the trial court

is affirmed.

___________________________________ JAMES CURWOOD WITT, JR., JUDGE