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 aggravated sexual battery of a foster child who was in his care. He appeals this conviction,

alleging various errors in evidentiary admissions, impermissible comment 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; Judgment of the Criminal Court is Affirmed as Modified, Remanded.

JAMES CURWOOD WITT,JR.,J., delivered the opinion of the court, in which DAVID H. WELLES and

THOMAS T. WOODALL, JJ., joined.

William D. Massey, Lorna S. McClusky, for the Appellant, Robert D. Walsh.

Paul G. Summers, Attorney General & Reporter; Mark E. Davidson, Assistant Attorney General;

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

in the Shelby County Criminal Court. He was thereafter sentenced by the trial court to serve ten

years at 100 percent. In this direct appeal, he raises challenges to the admission of evidence, to the

trial court’s alleged commentary on a defense witness’s testimony, and to the trial court’s

determination that the offense occurred after July 1, 1995 and therefore required 100 percent

sentence service. We have heard the parties’ oral arguments and have reviewed the record, the

briefs and the applicable law. We conclude 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 an
1

It is the policy of this court to avoid use of the names o f minor victims of sex crimes.

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offender to which 100 percent service of sentence applies, and we therefore 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 offense as recorded on the judgment form.

In the light most favorable to the state, the evidence at trial demonstrated the

following. Around Christmas 1994, the eight-year-old victim1

 and her four-year-old sister were

placed as foster children in the home of Robert and Lou Walsh. The victim was unable to provide

a precise time frame, but approximately six months later, in the summertime, the defendant had a

sexually oriented conversation with the victim in which he told her that it would be permissible

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

sexual relations with an animal. In her testimony, the victim recounted that “pretty close” in time

after this conversation, the defendant rubbed the victim up and down along his body until he

ejaculated. The victim testified that after this incident, the defendant 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

on her. He attempted vaginal penetration on one occasion, anally penetrating her in the process. 

The victim testified that the defendant said 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 together.

In December 1996, the victim and her sister returned to the home of their biological

mother. The victim did not report the abuse until approximately eleven months later, and an

investigation commenced. During the investigation, the victim gave at least two statements

implicating the defendant to child welfare and law enforcement officials.

To counter the state’s evidence, the defendant presented proof aimed at showing that

the victim was sexually knowledgeable beyond her years as well as untruthful. The defense

attempted to highlight alleged inconsistencies between the victim’s prior statements and her trial

testimony. The defense also presented proof to counter various claims made by the victim, such as

that she had been alone 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 the 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 backyard pool. 

The defendant testified and flatly denied any sexual misconduct with the victim.

Three character witnesses testified on behalf of the defendant before the trial court exercised its

discretion to limit further cumulative proof of this nature.

The jury considered two charges against the defendant – one count of aggravated

sexual battery for a specifically-described masturbation incident and one count of rape of a child for
2

Although this statement is somewhat ambiguous in itself, it is apparent upon review of the record that the

defense was requesting an instruction that the limited purpose of the evidence was to show that the victim had made prior

consistent statements.

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the attempted vaginal penetration that resulted in anal penetration. After deliberating, the jury

returned a guilty verdict for aggravated 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 occurred after July 1, 1995, thereby mandating 100

percent service of this sentence.

The defendant then filed this appeal.

I

The first issue we consider is whether the trial court properly admitted the testimony

of social worker Carol Smith regarding a recorded statement she took from the victim and the

admission of an audiotape of the interview.

On direct 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 acknowledged talking to other individuals, as well, and answering their questions

the same way.

On cross-examination, the victim was asked several questions about a prior statement

she had given to Sergeant White of the Sheriff’s Department. Counsel read questions and answers

to the witness and asked her whether she had given the answers reflected in the statement. The

overall tenor of cross-examination was an attempt to discredit 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 court 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 admissible as prior consistent statements to

rehabilitate the victim after her credibility had been attacked on cross-examination. The defense

asked for a limiting instruction that the evidence could be considered “only for rebuttal 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 statement the victim gave to Sergeant White in Ms. Smith’s presence less than a week
3

The transcript itself was never admitted into evidence.

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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 wealth

of detail in her statements. On cross-examination, defense counsel asked for a copy of the tape

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 travel to her office to retrieve the tape and so that the defense

could review it. 

When cross-examination resumed, defense counselinquired atlengthabout variations

between the tape and the transcription of it. The witness acknowledged that there were variances

and explained that she did not herself prepare the transcribed version. Defense counsel proceeded

to inquire about specific variances between the transcript and the tape itself as well as specific factual

assertions of the victim in her prior statement to the witness. Counsel also inquired about the

victim’s statements during the interview with Sergeant White. On redirect, the state moved to

introduce the 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 began stating an objection to the admission of the tape but then withdrew it.

However, before the tape was played for the jury, the defense 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 contents at issue by questioning whether there were inconsistent

statements of the victim on the tape. Thereafter, the tape was played for the jury.

At the conclusion 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 tape of the interview “are not offered for the truth of the matters

contained therein, but are offered to show that such interviews and/or statements caused this witness

to take further action.” The defense objected to the instruction, although the precise basis of the

objection is unclear from the record. The same instruction was given at the close of proof, and no

further objection was made.

In his brief, the defendant has failed to cite any authority whatsoever for the position

he advances regarding 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).

Even if the issue were properly before us, we would be unpersuaded of reversible

error.

A witness’s prior consistent statements are inadmissible as corroborative evidence

of the witness’s testimony unless there has been an impeaching attack on the witness’s testimony.

State v. Meeks, 867 S.W.2d 361, 374 (Tenn. Crim. 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 testimony and thereby rehabilitate her credibility. Id.
4

In his brief, the defendant argues that trial counsel was under a mistaken impression that a particular portion

of the prior statement was inconsistent, 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 required to be successful before a prior consistent statement will be admitted.

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, it is

abunda ntly clear from the entire record that the defense theory was that the victim was no t truthful in her claim of sexual

abuse at the hands of the defendant and that portions 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 victim’s testimony 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 impeach the victim with purported inconsistencies, 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 received in evidence at the motion for new trial hearing, but that exhibit was not transmitted to th is court as a part

of the appellate record. A document which purports to be a copy of the transcription appears in the appellate 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 such the purported copy of the transcription is before us as an

attachment to a pleadin g, but not as ev idence. See Tenn. R. App. P. 24(a) (appellate record shall contain “the original

of any exhibits filed in the trial court”); State v. M arvin Ka le Ferguson, No. 03C01-9406 -CR-00234, slip op. at 6 (Tenn.

Crim. Ap p., Knoxville, July 12, 1995) (exhibits to a pleading are not evidence o f facts contained therein), perm. app.

denied (Tenn. 1995).

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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 strong attack. The victim was subjected to rigorous crossexamination about, among other subjects, inconsistencies between her testimony and her prior

statement to Sergeant White. Once this cross-examination had taken place, the state 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. That evidence came in the form of Ms. Smith’s

testimony about the victim’s prior statements. We see no error in the admission of Ms. Smith’s

testimony for the purpose of rehabilitating the victim’s credibility.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 about what victim told her

about sexual encounters 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, 1997) (DHS employee’s testimony about victim’s prior report of sexual abuse

admissible as prior consistent statement after victim was cross-examined on issues pertaining 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 his cross-examination of Ms. Smith, defense counsel inquired in

great detail about certain portions of the audiotape which apparently were not transcribed.5

 As part

of the effort to demonstrate the victim’s purported inconsistencies, defense counsel made much of
6

Obviou sly, the victim is not responsible for any variance between the transcript and tape. However, the manner

in which coun sel presented the absence s from the transc ript highlighted purported inconsistencies. For example, the

victim testified that she wore a one-piece bathing suit and that she was not allow ed to wear a two-piece bathing suit. The

transcription was consisten t. Howeve r, counsel’s questioning of Ms. Smith 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. 

7We have considered 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 the statement. It appears that at

times, defense co unsel’s questioning tended to confuse the witness because counsel asked questions in succession which

dealt with unrelated aspects of the victim’s prior statement. This mode of cross-examination obfuscated the rehabilitative

nature of the w itness’s testimony o n direct abo ut the victim’s prio r statement.

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some matters which were on the tape but not part of the transcription.6

 The mode of counsel’s

questioning suggested that the transcription was incomplete and somehow misleading. While we

do not appreciate the relevance that defense counsel apparently believed existed in the differences

between the transcript and the tape of Ms. Smith’s interview 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 victim. As such, it qualified for admission for rehabilitative purposes just as 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 statements). Additionally, at times

counsel’s cross-examination about variances between the transcription and the taped statement itself

as well as his questioning about particulars of the victim’s prior statement took portions of her

statement out of their overall context.8 This court has said that when cross-examination about a prior

statement tends to distort the meaning of the statement, the portions of the statement necessary to

place the excerpts in context may be introduced. See State v. Boyd, 797 S.W.2d 589, 593-94 (Tenn.

1990) (“Where specific questions and answers taken out of context do not convey the true picture

of the prior statement alleged to be inconsistent, it is unfair to permit reference to isolated,

unexplained responses by the witness and there is no error in allowing the statements to be placed

in context.”). The statement was properly admitted for rehabilitative purposes and to place excerpted

portions of the victim’s prior statement into overall context.

The final aspect of this issue pertains to the limiting instruction given by the trial

court. As discussed above, the proper instruction would have been that evidence 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 admissible as corroborative 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 statements were admitted to show what caused Ms. Smith
9

The defendan t claims that by instru cting that the evid ence was ad mitted to show why Ms. Smith took further

action, the trial court wa s conferring re liability and cred ibility on the 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 instructed, it would have considered the evidence

as rehabilitative o f the victim’s credibility. If the jury used the evidence as theorized by the defense, it would be

assuming the victim was credib le and therefore Ms. Smith took further action. Either way, the net result would be the

same.

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to take further action. We hold that this error was entirely harmless to the defendant. The jury was

told not to consider the evidence substantively. Moreover, the proper use of the evidence,

rehabilitating the victim’s credibility, benefitted the state. By the improper portion 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 are not 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 proceedings,”

it may be recognized as plain error. State v. Adkisson, 899 S.W.2d 626, 639 (Tenn. Crim. App.

1994); see also Tenn. R. Crim. P. 52(b). 

The Tennessee Supreme Court has recently adopted this court’s standard for

evaluating whether an alleged error is proper for notice as plain error:

(a) the record must clearly establish what occurred in the trial court; 

(b) a clear and unequivocal rule of law must have been breached; 

(c) a substantial right of the accused must have been 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.2d at 641-42). In

Smith, the supreme court emphasized that “all five factors must be established by the record 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 least one of the factors cannot be

established.” Id., 24 S.W.3d at 283.

A.
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In the 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 victim

was an incompetent witness who lacked personal knowledge of the facts to which she testified.

Specifically, he attacks her testimony because she responded in part to the state’s questioning about

the time frame with phrases such as “I think,” “I guess,” “I don’t really remember,” and “I really

couldn’t tell you.” The defendant 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 focus first on the Adkisson requirement that a clear and equivocal rule of law

much have 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, the victim perceived the sexual abuse

she suffered at the hands of the defendant with her own senses. See State v. Boling, 840 S.W.2d 944,

949 (Tenn. Crim. App. 1992) (witness is incompetent unless he has knowledge of the facts through

one or more of his five senses; victim who claimed no recollection of crime met personal knowledge

test). The extent to which her testimony was ambiguous is relevant to the weight to be afforded her

testimony, not its admissibility. See State v. Robinson, 971 S.W.2d 30, 44-45 (Tenn. Crim. App.

1997) (ambiguity in witness’s identification of defendant was matter to be considered by jury in

weighing evidence, rather than a question of admissibility based upon lack of personal knowledge).

With respect to the leading question component of the defendant’s complaint, this

court has long recognized the discretion afforded a trial court in allowing leading examination of

minor victims of sex crimes. See, e.g., Swafford 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.

In a similar vein, the defendant challenges as plain error the admission, absent

objection, of the victim’s testimony that she feared for the safety of other foster children in the

defendant’s care. The defendant complains that this evidence was irrelevant and unfairly prejudicial

and that the victim lacked personal knowledge 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 about her concern for them in the context of explaining her

reasons for eventually coming forward with her accusation against the defendant. Thus, the evidence

appears at least marginally 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 lived
10Other evidence o f record sup ports a conclusion that at least one of the other foster children was placed in the

defendan t’s home be fore the victim a nd her sister re turned to their mother’s care. Further, after the victim and her sister

returned to their mother, there were various visits and contacts between the victim and the defendant at which other

members of the defendant’s household were present. The last such co ntact was sho rtly before the victim first 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.

11The defendant claims that the state’s motive in eliciting this evidence “seems to 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 in the community.” The defendant does not make an attempt to substantiate this assertion with citation

to any portion of closing argument or other portions of the trial record which would lend any credence to this alleged

motive. 

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with the defendant.10 Finally, 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 defendant has failed to persuade us that any clear and

unequivocal rule of law has been breached. See Adkisson, 899 S.W.2d at 641. Plain error analysis

is therefore inappropriate. See Smith, 24 S.W.3d at 282-83.

C.

The defendant also alleges plain error in allowing the state to question the defendant’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 questioning amounted to plain

error. Most significantly, the defendant has cited no authority whatsoever for the proposition that

this questioning was improper. As such, he has failed to demonstrate the breach of any clear and

unequivocal rule of law. See Adkisson, 899 S.W.2d at 641. Likewise, he has thereby failed to

identify any substantial right which has been breached. See id. Therefore, we decline to address this

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

D.

The defendant’s fourth and final plain error allegation pertaining to evidentiary

matters is that the court improperly allowed the victim’s sister to testify to matters which had no

purpose other than to bolster the victim’s testimony. The defendant complains that the victim’s

sister was allowed to testify that she had been told by the victim what the defendant had done to the

victim, that she 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

an eight 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 asked near the beginning of her testimony if the

victim had told her about what happened to the victim, but no hearsay specifics were elicited. This

query served to establish that the witness had some basic knowledge of the matter on trial. Further,
12Although this evidence of sexual miscond uct was not the basis of the offense for which the defendant was

ultimately convicted, it was presented prior to the state’s election of offenses upon which it sought conviction. See

genera lly State v. Rickman, 876 S.W.2d 824 (Tenn. 1994) (in case in which charge spans a period of time, state may

offer evidence o f multiple sex crimes allegedly occurring during time frame of indictment so long as it ultima tely elects

at close of its proof-in-chief 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 inadmissibility of

a defenda nt’s other crime s, wrongs or a cts of Tenn essee Rule o f Evidence 404(b). Id. at 829.

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the next question asked was whether the defendant had done the same things to the witness, to which

the witness replied he had not. Despite the defendant’s claim that this was impermissible bolstering,

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 swimming pool one

evening. On direct examination, the victim testified about sexual misconduct and skinny 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 yard. She was also asked whether her sister was present

during the incidents in the pool, and she stated in response that her sister was usually inside with

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 differently.

First of all, “bolstering” generally refers 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). While bolstering is allowed in limited

circumstances,see id., the victim’s sister’s testimony did not encompass a prior consistent statement,

so a bolstering analysis is inapposite. 

Rather, this is a situation in which the state properly offered corroborative evidence.

Through the victim, the state offered evidence of sexual misconduct in the swimming pool.12 The

defense challenged various particulars of the victim’s claim through brisk cross-examination. The

state then offered the victim’s sister’s testimony that she was present during an evening swim in

which the defendant discussed skinny dipping. The evidence was relevant and proper.

The defendant also quarrels with the admission of the victim’s sister’s testimony that

her sister was believable. The defense engaged in a searching cross-examination of this witness
13Direct examination is co vered in five p ages of the tran script.

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which spans approximately 22 pages of the transcript.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 never 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-examination, the general tenor of which had been to very thoroughly

question the witness about all aspects of her direct examination testimony, prejudiced the defendant.

Additionally, in the context in which this statement was made, it was not improper character

evidence. See Tenn. R. Evid. 608.

Finally, we are compelled to comment that the defense has failed to substantiate its

claim that the state only offered this witness to inflame the prejudices and sympathies of the jury.

Because we see no error in the admission 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 analysis is therefore

inappropriate. See Smith, 24 S.W.3d at 282-83.

III

Next, the defendant challenges a statement made by the court after the testimony of

the defendant’s wife as an unfair comment on her testimony. The defendant 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, article VI, section 9 of the Tennessee Constitution

declares that trial judges "shall not charge juries with respect to matters of fact, but may state the

testimony and declare the law."

In this case, the trial court’s statement in question came at the end of the day, just

before court was recessed for the evening. The defendant’s wife had been excused from the stand,

six exhibits had been passed to and viewed by the jury, and a brief bench conference had 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 listen to everything. Whether it’s real or not.” The court then went on to

instruct the jury when to return and gave the usual admonitions about not discussing the case and

reporting any irregularities to the court.

In these circumstances, we are unpersuaded that the court’s statement was a comment

on the credibility of the defendant’s wife, the last witness of the day. Moreover, even 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 from which relief is available and otherwise appropriate
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shall not 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 process.").

For these reasons, the defendant has not convinced us that a clear and unequivocal

rule of law was 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

Finally, we consider whether the defendant was properly sentenced to 100 percent

service of his ten-year sentence, rather than 30 percent as a Range I offender.

Tennessee law provides that certain offenses, including aggravated sexual battery,

which were committed on or after July 1, 1995, require 100 percent service of the resulting

sentences, with no more than fifteen percent reduction for sentence 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 existed, and therefore, the release eligibility percentage would 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 release eligibility percentage is 30

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 following the effective 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 defendant disagrees.

Resolution of the issue turns entirely upon the facts presented at trial.

In determiningfactualmatters relative to sentencing a defendant, the standard of proof

for the trial court is by preponderance of the evidence. See State Dennis E. Bondon, No. 02C01-

9809-CR-00280, 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 support application of a specified enhancement factor).

On appeal, 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

not apply (1) to determinations made where the record fails to reveal that the trial court considered

the sentencing principles and all relevant facts and circumstances; (2) to the trial court’s legal

conclusions; and (3) to determinations which are predicated upon uncontroverted facts or

documentary evidence. See, e.g., State v. Smith, 898 S.W.2d 742, 745 (Tenn. Crim. App. 1994).

On appeal, “[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).
14The state essentially reads the victim’s testimony as a sequential narration of the various acts of sexual

miscondu ct. While a reading in this manner would come closer to supporting a finding by a preponderance of the

evidence that the offense occurred on or after July 1, 1995, we disagree that the victim’s testimony was a sequential

narration.

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In this case, the facts themselves are not in dispute. There is not conflicting evidence

to be resolved regarding whether the offense occurred on or after July 1, 1995, such as where one

witness testifies that the offense occurred prior to that date and another testifies that it occurred later.

Rather, the task of the trial court in this case was to consider whether all of the evidence supported

a conclusion that the offense occurred on or after the effective date 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 aggravated 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 contact without using a time period as part of the description of the

occurrence elected. 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. This

was the first thing that the defendant did that made the victim uncomfortable. Incidents of sexual

contact followed. The first such incident that the victim recalled in her trial testimony was when the

defendant rubbed the victim against his genitals. Although the victim 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, which included fifteen 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 recounted that the defendant asked her to touch his private parts and had guided her

in masturbating 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 after. 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 places the Biblical sex conversations in June of 1995.

Sexual contact began “[p]retty close” to these conversations. While it is certain that the incident of

aggravated sexual battery prosecuted in this case occurred after the Biblical sex conversations,

nothing in the record places the incident in chronological context with other acts of sexual abuse

such that it may be concluded with precision that the offense occurred after July 1, 1995.14

Specifically, it is not clear from the record to which of the various acts of sexual abuse the victim

was referring as the one in which the defendant “had first done it to” her which was shortly followed
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by the offense on trial. One might conclude that the victim was referring to the first time the

defendant engaged in “body rubbing.” Equally, one might conclude that the victim was referring to

the allegation of attempted vaginal penetration that resulted in anal penetration or to the first incident

of digital fondling. 

With the record demonstrating that the defendant is a Range I offender, we must

modify the trial court’s imposition of 100 percent service of sentence to 30 percent service.

Finally, we have discerned an error in the judgment form which requires correction.

See Tenn. R. Crim. P. 36 (clerical mistakes in judgments are correctable at any time). The judgment

reflects that the offense occurred “between 12-16-96 & 12-20-96.” The defendant was charged with

aggravated sexual battery occurring between December 16, 1994 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 in the date of the offense. In all other respects, the judgment of the trial court is

affirmed.

___________________________________ 

JAMES CURWOOD WITT, JR., JUDGE