# FILED
April 29, 1999 Cecil Crowson, Jr. Appellate Court Cle rk IN THE COURT OF CRIMINAL APPEALS

AT JACKSON JANUARY 1999 SESSION
STATE OF TENNESSEE, ) ) C.C.A. No. 02C01-9805-C C-00151 Appellee, ) ) HENRY COUNTY VS. ) ) HON. JULIAN P. GUINN, DONALD RAY SMITH, ) JUDGE ) Appellant. ) (Aggravated Sexual Battery)

OPINION CONCURRING IN PART AND DISSENTING IN PART
I agree with my colleagues’ conclusion that th e pre-trial statements of the alleged victim should not have been treated as substantive evide nce since they did not qualify for admission under any of the hearsay exceptions. However, these statements
were admitted without objection and treated as substantive evidence. I conclude the remedy is a new trial based

upon the erroneous admission of evidence, not

acquittal based upon insufficiency of th e evidence. The trial testimony

of the alleged victim indicates that she advised the District Attorney General’s office several days prior to trial that her pre-trial statements were false. The alleged victim w as called as the state’s fi rst witness and, consistent with her stated intention several days before trial, testified that the alleged incid ent did not
occur. The prosecuto r then covered in detail her prior inconsistent statements. Although a party may impeach that party’s own witness, such impeachment testimony
c an be highly prejudicial and improper. State v. Roy L. Payne , C.C.A. No. 03C01- 9202-CR-45, Washington County (Tenn. Crim. Ap p. filed February 2, 1993, at Knoxville); see

Tenn. R. Evid. 607. When the alleged victim was questioned by the prosecuto rabout her prior inconsistent

statements, there wasno objection or request for an instruction that these prior statements could not be c on sidered as substantive evi dence. No limiting instruction was given. When each of the other three witnesses was ask ed about the2

alleged victim’s prior a ccusatory statements, ther e was no objection or reques t for limiting instructi ons. Again, limiting i nstructions were not giv en. Defendant’s argument to the trial cour t in support of his motion for judgment of acquittal was based upon witness inco nsistencies and reasonable doub t, not that the he arsaystat ements of the alleged victim could not be considered as substantive evidence. Again, in this Court the defendant’s argument is the same. At no time has the defe ndant argued that the hearsay statements of the alleged victim were no t substantive evidence. Furthermore, defendant has n ot argued that the nonsubstantive nature of this ev idence fails to corrobor ate defendant’s confession. When hearsay

evidence is admitted

without proper objections , such testimony maybe properly considered and g iven its natural probativ e effe ct as if it were admissible. State v. Harrington , 627 S.W.2d 345, 348 (Tenn. 1981); State v. Carney , 752 S.W.2d 513, 514-15 (Tenn. Crim. App. 1988). Due to the absence of anobjection and the absence of limiting instructions to the jury, the jury unquestionably considered, and was entitled to consider, these hearsay statements as substantive evidence. The majority concedes, and I agree, that the pre-trial statementsof the victim
are sufficient to corroborate defendant’s confession if they are considered substantive evidence. Since the jur y u ndoubtedly considered the pre- trial statements as substantiv e evi dence due to the absence of limiting instructions, I would find their admission plain error. I do not bel ieve this Court is at l iberty to treat the stateme nts only as non-substantive evidence s o as to require an acquittal. The erroneous admission of evidence in thi s case justif ies a new trial, but does n ot mandate an acquittal. Althoug h the state may not be able to pro ceed with a prosecution upon a remand, this Court should not grant an acquittal under these circumstance s.

____ __ _______________________ _ JOE G. RILEY, JUDGE