1 The indictment charges the defendant with "attempt rape" and the judgment entered by the

trial court on that charge contains the same language. 

### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE STATE OF TENNESSEE v. WADE HENRY ALLEN MARSH Direct Appeal from the Criminal Court for Hamilton County Nos. 214480, 218867 Stephen M. Bevil, Judge

No. E1998-00057-CCA-R3-CD - Decided May 8, 2000

The defendant, Wade Henry All en Marsh, was convicted of one count of rape and one count of attemptedrape. In this appeal, he challenges the sufficiency of

the evidence and argues that the trial court erred by refusing to allow testimony that the victim had a sexually transm

itted disease

at the time of the offenses and by allowing the state to cross-examine about his sexual battery guilty plea involving the same victim. Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed
W ADE , P.J., delivered the opinion of the court, in which WELLES and H AYES , JJ., joined.
Ardena J. Garth, District

Public Defender, 11 th Judicial District (on appeal), Donna Robinson Miller, AssistantDistri ct Pu blic Defender ( on appeal), and C

hristian J. Coder, A

ssistant District Pub

lic Defender (at trial), Chattanooga, Tennessee, for the appellant, Wade Henr y Allen Marsh.
Paul G. Summers, Attorney General & Reporter, Elizabeth Marney, Assistant Attor ney Gen eral, WilliamH. Cox, District Attorney General, and Claire H

. Brant, Assistant Di strict Attorney Ge

neral, for the appellee, State of Tennessee.
OPINION

The defendant, Wade Henry Allen Marsh, was convicted of rape and attempted rape. 1 The trial court imposed concurrent sentences of ten years forthe rape and five years for the attemptedrape. In this appeal of right, the defendant challenges the sufficiency of the evidence and asserts that the tr

ial court erred

by disallowing evid

ence that the vic

tim had a sexually

transmitted disease at the time of the offenses and by allowing the state to cross-examine about a prior guilt y plea to a sexual battery charge involving the same victim. We find no error and

affirm the judgment of the trial court.2 It

is the policy of this court not to reveal the name of a minor who has been the victim of a sex crime.
-2-

In 1995, the fifteen

-year-old victim 2 lived with Pat

ricia Ball, a social worker at Bethel BibleVillage and a friend of her mother. Because sheobjected to many of the Ball household r

ules, the victim moved to the residence of the def endant, her natural father. At the time, the defendant shared a residencewith his girlfriend, her daughter from a previous relationship, and a son born to the defendant and his girlfriend. Before Christmas, about one month after the victim's arrival, the defendant asked the victim

into his bedroom to watch television. When the victim lay on the bed, the defendant tried

to kiss her on the mou

th u sing his tongue. When the victim objected, the defendant pe rsisted and then removed her pants and panties. The defendant attempted to ha v e intercourse but failed. The defendant then performed oral sex on the victim and asked that she do the sa me. The victim refused. When the defendant's girlfriend returned to the residence, t h e defendant quickly put his clothes back on and instructed the victim not to tell anyone wha t h ad happened. There were no other sex ua l encounters between the defendant and the victim. The following summer, the defendant insisted that the victim move out of his home. The victim did not report the incident to authorities until Jan uar y of 1997, when she informed a friend and a teacher.
I The defendant maintains that the evidence is insuf ficient to support h

is convictions because the victim did not testify thathe used force. T he state asserts t

hat the victim

did not consent to the encounter and that force was present.

On appeal, the state

is entitled to the str

ongest legitimate

view of the evidence and all inferences which might be drawn therefrom. State v. Cabbage , 571 S.W.2d 832, 836 (Tenn.1978). The credibility of the witnesses, the weight to be give n t heir testimony, and the reconciliation of conflicts in the evidence are matters entrusted exclusively to the jury as the trier of fact. Byrg e v. State , 575 S.W.2d 292, 295 (Te nn. Crim. App. 1978) . The relevant qu estion is whether, after reviewing the evidence in the light most favorable to the state, any rational trier of fact could have found

the essential elements of

the crime beyond a

reasonable doub

t. Tenn. R. App. P. 13(e); State v. Williams , 657 S.W.2d 405, 41 0 (Tenn.1983). This court may neither reweigh nor reevaluate the

evidence; nor ma

y this court substitut

e its inference

s for those

drawn by the trier of fact. Liakas v. State , 199 Tenn. 298, 286 S.W.2d 856, 859 (Tenn.1956). The evidence is sufficient when a rational trier of fact

could conclude th

at the defendan

t is guilty beyond a r

easonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979). The defendant has the burden of demonstrating that the evidence is not sufficient w hen there is a c hallenge to the sufficiency of the evidence. State v. Tuggle , 639 S.W.2d 913, 914 (Tenn.1982).

The crime of rap

e is statutorily def

ined as follows: (a) Rape is unlawful sexual penetration of a victim by t h e defendant or of the defendant bya

victim accompanied by any of the following circums

tances:-3- (1) Force or coe

rcion is used to ac

complish the act; (2) The sex ual penetration is accomplished without the consent of the victim and the defendant knows or has reason to know at the time of the pe

netration that the

victim did not conse

nt; (3) The defendant knows or has reason to know that the victim is mentally defective, mentally incapacitated or physically help

less; or (4) The sexual penetration is accomplished by fraud. Tenn. Code Ann. § 39

-13-503. The inch

oate crime of att

empt is defined as

follows: (a) A person commits criminal attempt who, acting withthe kind of culpability otherwise required for the offense: (1) Intentionally engages in action or caus es a result that would constit u te an offense if the circumstances surrounding the conduct were as the person believes them to be; (2) Acts with intent to cause a result that is an element of the offense, and believes the conduct will cause the result without further conduct on the person's part; or (3) Acts with

intent to complete a

course of action or cause a result tha t would

constitute the offense, under the circumstances surroun ding the conduct as the person believes them to be, and th e conduct constitutes a substantial step toward th e commission of the offense. (b) Conduct doe s not constitute a substantial step under subdivisio n (a )(3) unless the pe rson's entire cou

rse of action is corroborative of the intent to commit the offense. (c) It is no defense

to prosecution for criminal attempt that the offense attempted was actually committed. Tenn. Code Ann. § 39-12-101.

Traditionally, fo

rce has been de

fined as follows:
"Force" means compulsion by the use of physical power or violence andshall be broadly construe d to accomplish the

purposes of this title.
Tenn. Code Ann. § 39-11-106(a)( 12); see also State v. McKnight , 900 S.W.2d 36, 48 (Tenn. Crim. App. 1994).
In this case, there is no evidence of force within the meaning of the term's statutory definition. The victim acknowledged that the defendant said nothing during the encounter. There were no threats of physical harm. She conceded that she did not resist the defendant or try to escape.-4-

While the state contends that the defendant "forced [the victim's] legs apart," the record establishes that the victim stated only that the defendant "opened [her] legs and go

t between her." The state also assertsthat the defenda

nt used force to st

raddle the victim's head while performing oral sex on her. Yet, there was simply no testimony that the defendant used any de gree of for ce in positioning himself in this manner.

In support of his position, the defendant relies on Statev. Watkins , 754 S.W.2d 95 (Tenn. Crim. App. 1988). In Watkins , the defendant was convicted of

rape and incest.

On appeal, this court reversed the rape conviction because there was no evidence

of force agains

t the victim, the defendant's seventeen-year-old daughter; in fact, the victim testified that the defendant had used no force or threats, and conceded that she had offered no resistance.

Historically, proof of force w as re quired to sustain a rape conviction under Tennessee law. See, e.g. , Lundy v. State , 521 S.W.2d 591, 593 (Tenn. Crim. App. 1974) ("Unquestionably, the act to constitute rape must be forcibly done and against the will of the female."). Effective July 1, 1995, however, the Ge

neral Assembly am

ended Tennesse

e's rape statute

so as to include within the definition of rape any sexual penetration without the consent of the victim, whether accomplished by force or not. See Tenn. C od e Ann. § 39-13-503. In view of the amendment, the defendant's relianceon Watkins , a pre-amendment case, is misplaced. Under current law, a

showing of lack of consent by the victim is sufficient to sustain a rape conviction.

In our view, the evidence was suffici ent to establish tha t the defendant se

xually penetrated

the victim without her consent and that he knew or had reason to know

that she did

not consent. According to

the victim, the defendant had asked her to have sex on prior occasions. When he offered to purchase things for her in return for sex, she refused. Furthermore, the victim told the defendant to stop kissing her and refused to perform oral sex. At trial, the victim contended that she was shocked by the occurrence and that she did not want to have sex with the defendant.

The issue of consent is a question for the jury. Haynes v. State , 540 S.W.2d 277, 278 (Tenn. Crim. App. 1976). Non-resistance is not consent. See Lundy , 521 S.W.2d at 594. Here, the jury accredited the victim's testimony. Consequently, there is sufficient evidence to establish that the defendant knew or shoul d h ave known that his sexual advances upon the victim were not welcome. The same rationale would apply to the attempted rape conviction.
II The defendant next a

sserts that the tria

l court erred by r

efusing to allow evidence that the victim had gonorrhea at the time of the sexual encounter. The state maintains that the defendant has waivedthe issue by failing to comply with

the requirements of the rape shield law. SeeTenn. R. Evid. 412 (d). Our review of the exclusion of

this evidence is su

bject to an abuse o

f discretio

n standard. In our view, the evidence was properly excluded.

Modern rape shield laws attempt to strike a balance between a

sexual offense victim's needfor protection from

unwarranted intrusions into her sexualhistory and a criminal defendant's rightto a fair trial. In State v. Sheline , 955 S.W.2d 42, 46 (Tenn. 1997), our supreme court made-5-

the following obse

rvations regard

ing the role of ra

pe shield laws: Rape shield laws were adopted in response to anachronistic and sexist views that a woman who had sexual relations in the past was more likelyto have co nsent ed to sexual relations with a specific criminal defendant. Those attitudes re sulted in two rape trials

at the same time

–the trial of the defendant and the trial of the rape victim based on her past sexual condu

ct. It has been sa

id that the victim

of a sexual assault is actually assaulted twice – once by the offender and once by the criminal justice sy

s tem. The protections in rape shield laws recognized

that intrusions in

to the irrelevant sexual history of a victim were not only prejudicial and embarrassing but also a practical barrier to many victims reporting s exual crimes. As t

he comments

to Tennessee's rape shield law (Rule 412) observe: [T]he rule . . . takes into a ccount th at the public's interest in prosecuting and

convicting people

guilty of various sexual offe nses is frustrated when sexual assault victims r

efuse t o report the offe

nses or to testify about them at trial beca use of the possible admission of evidence of th e ir sexual history. Moreover, t he rule seeks to minimize the likelihood that evidence of the alleged victim's sexu al history may cause the jury to b

e unfairly preju

diced against the victim.
At the same time, rape shield laws recognize those circumstan

ces in which the admission of such evidence, despite its po tenti ally embarrassing nature, must be ad mitted topreserve an accused's right to a fair trial.
Id. at 44-45 (citations omitted).

Tennesse e's rape shield law is embodied in Rule 412 of the Tennessee Rules o f Evidence, which

provides in pertin

ent part as follow

s: (b) Reputation or Opinion. Reputation or opinion evidence of the sexual behavior

of an all eged vi ctim of such offe nse is inadmissible

unless admitted in acco rdance with the procedur es in subdivision (d) of this rule andrequired by the Tennessee or United States Constitution. (c) Specific Instances of Conduct. Evidence of s pecif ic instances of a victim's sexua l behavior is i

nad missible unless-6- admitted in accordance with the procedures in subdivision (d) of

this rule, and the evid

ence is: (1) Required by the Tennessee or United States Constitution, or (2) Offered by the defendant on the issue of credibili

ty of the victim, providedthe prosecutor or victim has presented evidence as to the victim's sexua

l behavior, and on

ly to the extent nee

ded to rebut the specific evidence presented by the prosecutor or victim, or (3) If the sexual behavior was with the accused, on the issue of consent, or (4) If the sexual behavior was wi th pe rsons other than the accused, (i) to rebut or explain scientific or medica l evidence, or (ii) to prove or explain the source of semen, injury, disease, or knowledge of sexual matters, or (iii) to prove consent if the evi dence is of a pattern of sexua l behavior so distin ctive and so closely resembling the accused's version of th e allegedencounter with th e victim that it tends

to prove that the victim consented to the act charged or behaved in such a manner as to l ead the defendant reasonably to believe that the victim consented.
Tenn. R. Evid. 412(b), (c). "Sexual behavior," as that term is used in Rule 412, is defined to mean "sexual activity

of the alleged

victim other than the sexual act at issue in the case." Tenn. R. Evid. 412(a).
When the defense i nte nds to offer evidence of a victim's prior sexual behavior, whether it is reputation or opinion evidence or evidenc e of s pecific instances of conduct, the defendant must file a written motion which, if sufficient, will lead to a closed hearing on the matter:

(d) Procedures. If a person accused of an offense covered by this Rule intends to offer under subdivision (b) reputation or opinion evidence or under

subdivision (c) specific instances of conduct of the victim, the following procedures apply:-7- (1) The person must file a written motion to offer such evidence. (i) The motion shall be filed no later thanten days before the date

on which the trial is scheduled to begin, except the court may al low th e motion to be made at a later date,

including during tr

ial, if the court determines either that the ev idence is newly discovered

and could

not have been obtained earlier through the exercise of due diligence or that the issue to which such evidence relates has newly arisen in the case. (ii) The motion shall be served on all parties, the prosecuting attor ney, and the victim; service on the victim sha ll be made through the prosecuting attorney's office. (iii) The motion shall be accompanied by a wr itten offer of proof, describing the specific ev idenc e and the purpose f

or introducing it. (2) When a motion required by subdivision (d)(1) is filed and found by the court to comply with the requirements of this rule, the court shall hold a heari

ng inchambers or otherwise out of the hearing of the public

and the jury to determine whet her evidence de

scribed in the motion is admissible. The hearing shall be on the record, but the record shall b e sealed except for the limited purposes of facilitating appellate review, assisting the court or parties in their preparation of the case, and to impeach under subdivision (d)(3)(iii). (3) At this hearing (i) The victim may attend in person, (ii) The parties may call witnesses, including the alleged victim, and offer relevant evidence, and (iii) The accused may testify but the testimony during this hearing may not be used a gains t the accused in the preliminary hearing, trial , or o ther proceeding, except that such testimony may be admissible

to impeach the cr

edibility of the defendant if the defendant e

lects to testify at the preliminary-8- hearing, trial, or other proceeding. (4) If the court dete

rmines that the evidence which the accused seeks to offer satisfies subdivisions (b) or (c ) and that the probative value of the evidence outweighs its unfair prejudice to the victim, the evidence shall be admissible in the proceeding to the extent an order mad e by the court specifies the evidence which may be offered an d areas with respect to wh

ich the alleged vi

ctim ma y b e examined or cross-examined. Tenn. R. Evid. 412(d).

In our view, the res

olution of this

issue depends on whether evidence that the victim had gonorr hea at the time of h er sexual encou

nter with the defe

ndant is evidence

of "s exua l behavior" as defined by Ten nessee Rule of Evi

dence 412. The de

fendant maintain

s that it is not. We disagree. Proof

that a sexual assa

ult v icti m has or has had a s exually transmitte

d disease is evidence of the victim's "sexual behavior" within the meaning of Rule 412. In consequence, the trial court correctly relied upon Rule 412 in determining this issue.

While Rule 412's definition of "sex ual behavi or" does not make specific reference to sexually transmi

tted diseases, it is

broad enough to en

compass them:
This definition [of "sexual behavior"] is quite broad in recognition of the important privacy

interest s and variety in our citizens' sexual lives. The term sexual behavior embraces all types of sexua l conduct, including heterosexual and homosexual behavior. It also deals with sexual intercourse as well as every other variety of sexual expression. It may include fetishes as well as pre- and post- intercourse behavior.
Ne il P. Cohen, et al., Tennessee Law of Evidence § 412.2, at 241 (3d ed. 1995). Indeed, th e Tennessee supreme court has specifically re cognized the bre

adth of Rule

412 in determining t

hat it encompasses conduct that is not necessarily sexual in nature:

Although kissing does not necessarily have a sexual connotation, the trial judge ruled on this testimony under Rule 412. Sexual behavior is defined in

Rule 412 as "sexual activity of the alleged victim other than the sexual act at

issue in the case. " This broad defini tion "deals withsexual inte

rcour se as well as every other variety of sexual expression."
Sheline , 955 S.W.2d at 48 n.6 (citations omitted). Other jurisdictions have treated proof of a victim's sexually transmitted disea

se history as evidence of prior sexual behavior. See, e.g. , State v. Mitchell , 586 N.W.2 d 493, 496 (Iow a 1997) (treatin g evidence that v

ictim tested positive

for gonorrhea s

hortly after sexual assault as evidence of victim's "past sexual behavior" under Iowa Rule of Evidence 412);-9-

Statev. Gilliland , 902 P.2d 616, 620 (Or. Ct. App. 1995) (excluding victim's statements about prior treatments

for sexually transmitted diseases as eviden ce of victim's "past sexual behavior" under Oregon Evidence Code 412 ); Smith v. State , 737 S.W.2d 910, 915 (Tex. Ct. App. 1987) (analyzing proffered evidence that victim had gonorrhea on date of rape exam as evidence of

victim's "previous sexual conduct" under Te xas rape shield la

w); State v

. Jarry , 641 A.2d 364, 366 (Vt. 1994) (analyzing proffered evidence that victim had chlamydia on d a te of rape exam as evidence of victim's "prior sexual conduct" under Vermont rape shield law).

Furthermore, the trial court did not abuse its discretion by excluding proof that the victim had gonorrhea. Immediately prior to trial, the state

filed a motion to exclude all evidence of the victim's sexual behavior and cited to the defendant's failure to file a Rule 412 motion. The trial court inquired as to whe

ther the defenda

nt intended to intro

duce evidence o

f the victi m's s exual behavior "in any way." In response, defense counsel said, "I – at this point in time I had not planned to introduce any evi dence to her sexual nature." As a result, the trial court sustained the state's motion. On the seco

nd day of trial,

the issue arose again. At that time, the defendant's wife, who was the defendant's girlfriend at the time of the events at issue, testifi e d that the victim had gonorrhea

when she first

moved into the defendant's home. She confirmed that the victim received medical treatment for that condition. The state immediately objected. In a jury-out hearing, defense counsel maintainedthat the evidence was being offered to show that the sexual encounter at issue did not occur. He offered no further explanation.

In this appeal, the defendant, who never contracted gono r rhea, maintains that evidence that the victim had the disease was a circumstance suggesting that no sexual encounter had taken place. In other words, the defendant argues that he would have contracted gonorrhea if he had hadsex with the victim. The only pro of in the record i

s that the victim had the disease in November of 1995, when she moved

into the defendant's residence. There is no evidence with regard to how long the victim had the disease or when she was treated for it. Thatis, there is no direct proof that the victim actually ha

d gonorrhea at th

e time of the sexua

l encounter with th

e defendant. No

r is there any evidence as

to the strain of gon

orrhea the victi

m had, how gonorrh

ea is transmitted, or the rate at which gonorrhea is transmitted from women to men. As such, evidence of the victim's gonorrhea

would have been properly excluded as irrelevant even had the defendant compli ed with Tennessee Rule of Evidence 412. See Tenn. R. Evid. 402; Smith , 737 S.W.2d at 915 (" [The defendant] was not able to pro ve that the mere f

act that the [vic tim] had gonorrhea would have resultedin the transmission of gonorrhea to anyone with whom she had sexualcontact. As a re sult, we cannot say that the evidence of th e [victim's] gonorrhea was material to the fact issue at the trial.").
The defendant r elies o n State v. Fears , 659 S.W.2d 370 (Tenn. Crim. App. 1983). In our view, the ruling in Fears does not support the defendant's argument that the jury should have heard proof of the victim's gonorrhea. In F ears , the defendant was charged with aggravated rape. At trial, the state presen

ted evidence tha

t the defendant a

nd the five-year

-old victim had gonorrhea at the same time. The victim claimed that the defenda

nt put his penis in her vagina and in her mouth. When the victim was e

xamined by a doctor, she was diagnosed with gono

rrhea. A cultur

e also revealed the presence of gonorrhea in the victim's throat. Tw

o days after the v

ictim's diagnosis,

the-10-

defendant sought treatment for gonorrhea.

In Fears , there was medic al evidence intr

oduced at tr

ial establishing, among other things, how one might contr act gonorr hea. Nothing here made the claims of the defense material to the central issue.
III

Finally, the defendant asserts that the trial court erred by allowing thestate to crossexamine him about his prior plea of guilt to a sexual battery charge arising out of a separate

incident with the same victim. The defendant did not make a contemporaneous objection to the testimony even though there was a

bench confere

nce requested b

y the state at the time the proof was offered. Further, the defendant

did not raise the issue in his motion for new trial. As a result, the issue has been waived. SeeTenn. R. App. P. 3(e), 36(a).

Accordingly, the judgment of the trial court is affirmed.