# FILED
January 15, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON SEPTEMBER 1997 SESSION

STATE OF TENNESSEE, ) ) APPELLEE, )

) No. 02-C-01-9612-CR-0 0447 ) ) Shelby County v. ) ) W. Fred A xley, Judge ) ) (Rape) COLLIER V. HARRIS, ) ) APPELLANT. )

FOR THE APPE LLANT: FOR THE APPELLEE: W. Mark W ard John Knox Walkup Assistant Public Defender Attorney General & Repor ter 201 Poplar Avenue, Suite 2-01 500 Charlotte Avenue Memphis, TN 38103 Nashville, TN 37243-0497 (Appeal Only) Kenneth W. Rucker Ronald S. Johnson Assistant Attorney Gener al Assistant Public Defender 450 James Robertson Parkwa y 201 Poplar Avenue, Suite 2-01 Nashville, TN 37243-0493 Memphis, TN 38103 (Trial On ly) William L. Gibbons District Attorney General OF COUNSEL: 201 Poplar Avenue, Suite 3-01 Memphis, TN 38103 A C Wharton, Jr. Chief Public Defender Edgar A. Peterson, IV 201 Poplar Avenue, Suite 2-01 Assistant District A ttorney General Memphis, TN 38103 201 Poplar Avenue, Suite 3-01 Memphis, TN 38103

OPINION FILED:______________________________ CONVICTION AFFIRMED; REMANDED FOR A NEW SENTENCING HEARING Joe B. Jones, Pre siding Judge2 

## O P I N I O N

The appellant, Collier V. H arris (defendant), was c onvicted of rape, a Class B fe lony, bya jury of his peers. The tr ial court, finding the defendant to be a mult iple offender, imposed a Range II sentence consisting of c onfinement for twenty (20) y ears in the Departmentof Correction. This sentence is to be served consecutiv

ely to a sentence for felony murder in an unrelated case. The defendant pre sents four issues for review. He
con tends the trial court committed er ror of prejudicial dimensi ons by (a) ruling the stat e could impeach the defendant with a pri or conviction for first degree murder; (b) allowing the state to introd uce the t estimon y of two othe r women who were also raped by the defendant; (c) i ns tructing the jury it could consider the tw o rapes to show intent, moti ve, guilt, and knowledge; and (d) finding him to b e a multiple of fender and im posing a Range II sentence. After a thorou gh review of the record , the briefs submitted by the pa rties, and the law governing

the issues presented for rev iew, it is the opini on of this court t hat the defendant’s conviction for rape should be affirmed. However, thi s cause is remanded to the trial court for a new sentencing hearing for th e reasons set forth in this opi nion. The defend ant does not chall enge the s uffici ency of th e evidenc e. Howeve r, a recitation of the salient facts is necessary for an understandingof the issues presented for review. The victim, Angela Phil lips, lived in a subdi vision near the inters

ection of Navy Road and Bethel Road in Milling ton, Tennessee. During the ear ly morning hours of October 11, 1993, the victim walked to a nearby service station to purchase a bag of potato chips. The defendant, whom she had observed driv ing through her

neighborhood on prior occasions, offered her a ride from the servi ce station toher home. She did not know th e defendant. While she only lived a short distance from the station, she accepted th e defendant’s invitation because it w

as raining and cold. The defendant drove his vehicle away from the victim’s residence. He subsequently drove his vehicle to Center College Road, drove into a field, and parkedbehind a grove of trees. He exited the v

ehicle, walked to the pas senger side of the vehicl e, and pulled the victim from the vehicle. He then pl aced his arm aroun d her ne ck and began sque ezing.3

The victim became dizz y and began losing her

breath. The defendant told the victim to pull her pants down. He then forced her to bend over in front of him. He told the victim, “I’m going to teach you bitches somethi ng.” The defendant then vaginally penetrated thevictim with his reproductive organ from behind her as he held her neck. Subseque ntly, the victim was tak en by law enforcement authorities to the Memphis Sexual Assault Resource Center. A nurs e took samples of the fluids from the genital area of the victim’s body. Later, blood and hair samples were taken from the defendant. All of the samples were submitted by the authorities for DNA tes ting. The samples taken from the victim revealed the presence of sperm. The DNA profile of the sperm found in the victim wasconsistent withthe DNA profile of the defendant. The DNA expert testified the profile for the s perm fo und in th e victim oc curs with a f requency of app roximately one in 467 mil lion Caucasians and one in 50 mill ion African-Americans. The defendant i s an African-American. T he vi ctim identified the defendant as the pers on who had raped her. The state presented two other women who testified the defendant raped them. Onewas raped on November 21, 1993, and the other was raped in June of 1991. The defendant did not testify in support of his defense. Nor did he present any other witnesses. I.

The State of Tennessee gave the defendant notice it would use his prior convictions to impeach him if he opted to testify during the trial. Se e Tenn. R. Evid. 609(a)(3). The notice alleged the following convictions would be used to impeach the defendant: assault, unlawful possession of a controlled substance, possession of a weapon, and murder in the perpetration of a theft. When the sta te rested its case-in-c hief, the trial court conducte d what is commonly referred to as a “Morgan hearing.” The assistant district atto rney general candidl y admitted the three misdem eano r convictions

could not be used to impeach the defendant. However, he argued the felony murder conviction could be used to impeach the defendant if he testified during the trial. The defendant objected to the use of this felony convi ction to impeach him. He arg ued4

rape and murder in the perpetration of a felony were both cri mes of violence; and the probative value of this conviction for impeach ment purposes was far outw eighed by its prejudi c ial effect. The trial court, stating the underlying cri me was theft, ruled the state could use the conviction to impeach the defendant. In this court, the defendant contends “ the trial judge erred in that the probative value of the first degree murder conv iction on theissue of Appellant’s credib ility did not outweigh the unfair prejudicial effect that al lowance of the impeachment woul d have had on t h e substan tive issues of identity and cons ent.” He argues a conv iction forfirst degree murder has “little probative value” and “little or no bearing on credibil ity” beca use the mens rea requirement

for this offense is “recklessness.” The state contends the trial court properly ruled that the first degree murder conviction could be used to impeach the defendant if he opted to testify during the trial.

A.

The State of Tenness

ee must establ ish certai n prerequi sites before it may use a prior conviction to impeach an ac cused in a criminal prosecution. In State v. Farmer , 841 S.W.2d 837 (Tenn. Crim. App.), per . app . denied (Tenn. 1992), this court sai d:

The State may

use a prior adult convicti on to impeach the testimony

of an accused in a criminal pr os e cution if: (a) the conviction was for a c rime that is punishable by death or imprisonment

in excess of one (1) year or a misdemeanor involving dishonesty or false statement , Tenn . R. Evid. 609(a)(2 ), (b) less than ten (10) y ears has elapsed between the date the accused was released from confinement and the commencementof the prosecution, Tenn. R. Evid. 609(b), (c) the State gives reasonable written notice of the particula r convict ion orconvictions it intends to use to impeach the accused prior to trial, Tenn. R.Evid. 609(a)(3), and ( d) the trial court finds that the probative v al ue of the felony or misdemeanor

on the issue of credib ility outweighs its unfair prejudicial effect on the s ubstantive issues. Tenn. R . Evid. 609(a)(3).
841 S.W.2d at 839. In this case, the parties ag ree the first three prereq uisites set forth in Farmer , i.e. , requirements

(a) through (c), have been satisfied. Thus, this court must determine whether5

the trial co urt reasonably concluded that the probative valu e of the prior felony murder
con viction on the question of the defendant’s credibility outweighed its prejudicial eff ect upon the substantive issues presented by the evidenc e: the identity

of the defendant as the person who

raped the victim and the consent o f the victim to the sexual penetration.

B.

It is a well-established r ule of law that the questi on of whether a prior conv iction can be used to impeach theaccused addresses itself to the sound discreti on of the trial court. State v. Sheffield , 676 S.W.2d 542, 548-49 (Tenn. 1984); State v. Roberts , 943 S.W.2d 403, 408 (Tenn. Crim. App.), per . app . denied (Tenn. 1996); State v. Wiggins , 7 2 9 S.W.2d 291, 295 (Tenn. Crim. App.), per . app . denied (Tenn. 1987). An appellatecourt will not interfere withthe exercise of this discretion absent cl ear abuse appearing on the face of the record. See State v. Van Tran , 864 S.W.2d 465, 477 (Tenn.1993), cert
. denied , 511 U.S. 1046, 114 S.Ct. 1577, 128 L.Ed.2d 220 (1994); State v. Harris , 839 S.W.2d 54, 73 (Tenn. 1992), cert
. denied , 507 U.S. 954, 113 S.Ct. 1368, 122 L.Ed.2d 74 6 (1993); State v. Baker , 751 S.W.2d 154, 163 (Tenn. Crim. App.), per . app . denied (Tenn. 1987). Appellate review of this iss ue is limited to a determination of whether the trial court abused its discretion by permitting the use of the felony murder conviction to impeach the defendant. Roberts , 943 S.W.2d at 408. T his court is not permitted to re-w eig h or reevaluate the proba tive value vers us the prejudicial effect of the pri or conviction on the substantive issues w

hich must be resolved by the trier of fact. Id.

C.

The Tennessee Rules of Evidence recogniz e tw o classes of prior convi ctions to impeach an accused if the prior convictions meet the criteria set forth in Rule 609. The first class of

prior convictions encompasses felony offenses which are punis hable by death
or imprisonment in excess o f one (1) year. Tenn. R. Ev id. 609(a)(2). The second class of prior convictions includes

misdemeanor

offenses involving dis honesty or false statement.6

Id

. See Farmer , 841 S.W.2d at 839. There is no requirement th at a felo ny c onviction involve dishonesty or false statement before the conviction may be used to impea ch the accused. State v. Tune , 872 S.W.2d 922, 927 (Tenn. Crim. App.), per . app . denied (Tenn. 1993). In Tune this court said “a cr

ime committed by the

accused which is puni shable by death o r imprisonment in excess of one year may be admissibl e in order to attack hi s credibili ty, regardless of whether the crime involved dishonesty or false s ta tements. . . .” However, both classifications of prior convictions are subj ect to the probative value versus prejudicial effect requirement of Rule 609. State v. Jerry Lee Finch , Lauderdale County No. 02-C-01-9309-CC-002 24, 1995 WL 334350 (Te nn. Crim. App., Jackson, June 7, 1995), per . app . denied (Tenn. November 5, 1995). The appellat e courts h ave upheld the use of crimes involving violence to impeach
an accused when the prerequisites contained in Rule 609 have been met. In Sheffield , the supremecourt uphe ld the use of a voluntary manslaughter convicti on to impeach the accused in a capital first degree murder prosecution.676 S.W.2d at 549-50. In State v. Ratliff , 673 S.W.2d 884, 885 (Tenn. Crim. App.), per . app . denied (Tenn. 1984), this court ruled a prior convic

tion for assault with intent to commit second degree murder could be used to impeach theaccused in a prosecution for concealing stolen proper ty. In State v. Ronnie Dunn , Washington County No. 03-C-01-9102-CR-00042, 1 992 WL 167349 (Tenn. Crim. App., Knoxville, Ju ly 21, 1992), rev’d and modified , Washington County No. 03-S-01- 9211-CR-00104, 1993 WL 339919 (Tenn. Sept. 7, 19 93) (modifying the conv iction to second degree murder), this c ourt held theuse of a prior first degree murder conviction to impeach the accused was permiss ible in a prosecutionfor felony murder. In State v. Burl Lakins , Claiborne County No.32, 1991 WL 84947 (Tenn. Crim. App., Knoxville, May 24, 1991), this court held a prior conviction for second deg ree murder could be u sed to impeach the accused in a prosecution for aggravated ass ault. This court has also upheld t he use of crimes involving violence to impeach an accused charged with a sex -related offense when the prereq uisites contained in Rule 609 have been met. In Wiggins , this court held that prior convictions for voluntary manslaughter

a nd possession of a controlled subs tance for resale could be used to impeach the accused in a prosecution for aggravated rape and aggravated kidnapi ng. 7297

S.W.2d at 294. State v. Blanton , 926 S.W.2d 953, 959-60 (Tenn. Crim. App.), per . app . denied (Tenn. 1996), this court ruled a prior con viction for second degr

ee murder could be used to impea ch Blant on in a prosecution for agg ravated sexual battery if he opted to testify in support of his defense. In State v. Daniel Strong , Davidson County N o. 88-82-III, 1989 WL 34942 (Tenn. Crim. Ap p., Nashville, April 12, 1989), per . app . denied (Tenn. July 3, 1989), this court ap pro ved the use of a prior conv iction for malicious shooti ng to impeach an accused in a prosecution for assault with intent to commit murder first degree and assault with intent t o commit rape.

D.

Neither the Tennessee Rules of Evidence nor the

appellate courts have est ablished
a brightline test or rigid guidelin es for deter mining whether the probative value of a prior conviction ou tweig hs its prejudicial effect upon the substantive issues. Sheffield , 676 S.W.2d at 548-49; Tune , 872 S.W.2d at 927; Wiggins , 729 S.W.2d at 295. In Sheffield , the supreme court set forth the f ederal “gu idelines that have [e]v olved” for determining whether the probative value of a pri or conviction outwe ighs its prejudicial effect. In holding that a prior conviction for voluntary manslaug hter could be usedto impeach the accused in a capital murder prosecution, the court said:

While examination of tho se [federal] factors may be useful to trial judgesin some c as es , w e d ec li ne

to ad opt t he m. We think it inappropriate to introduce the rigidity that inevitably accompaniesthe mandated use of express guideli nes for the exercise of judicial discretion i nvolving the w eighing and balancing of elusive concepts.
676 S.W.2d at 548. In Wiggins this court, acknowledging the s upreme court’s ruling in Sheffield , stated:
In the final issue, the defendant says that the trial court err ed in permitting evidence of his prior conviction for voluntary manslaughter

and possessi on o f [a] controlled substance for resale. This evidence was admitt ed fo r impeachment purposes. He says that since the se offenses did no t involve dishonesty

or fal s e statement, the prejudicial effect of this8 evidence outweighed probativ e val ue and that the trial jud ge onlygave “lip service” to the law in weighing

prejudicial effect against probative v

alue. . . . * * * * [O]ur Supreme Court h as rejected the adoption of gu ide lines to be followed by trial judges in weighi ng probative value against prejudicial effect with regard to evidence of convictions of crimes that do not involv e dishonesty or false statement

. * * * * We do not find that the trial judge abused his discretion in holding that prob ative value outweighed pr ejudicial effect with regard to evidence of these tw o pr io r c

on vi ct io ns . We therefore overrule this issue.
729 S.W.2d at 294-95. E.

The mere fact a prior conviction of the accused is identical or similar to the off ense forwhich the accused is bein g tried does n ot, as a matter of law, bar the use of the conviction to impeach the accused as a witness. See State v. Miller , 737 S.W.2d 556, 560 (Tenn. Crim. App.), per . app . d enied (Ten n. 1987). Nevertheless,the trial court, when consideringan identical or similar offense, should (a) “assess the similarity between the crime on trial and the crime under lying the impeaching

conviction,” and (b)

“ana lyze th e releva nce the im peaching conviction has to the issue of credibilit y” when weig hing the probative value of the conviction against its prejudicial effect. Farmer , 841 S.W.2d at 839; N. Cohen, et al ., Tennessee Law of Evidence , § 609.9 at 375 (3d ed. 1995). I n this case, the defendant admits the crimes of felony murder and rape are no t identical or similar in nature. However, the defendant asser ts the prejudicial effect of the felony murder conviction outweig hed its probative value because the two offenses are crimes of violence. As previously stated, crimes of violence may be used to impeach an accused in a sex-related offense, w hen, as here, all ofthe prerequisites of Rule 609 are met. Blanton , supra ; Wiggins , supra ; Strong , supra . In s ho rt, when the impeaching offense and the offense for which the accused is being tried are not identical or similar in nature, the mere fact both are crimes of violence will not resul t in the exclusion of the impeaching offense solely on the grounds the two offenses involv e violence. Blanton , 9269

S.W.2d at 959-60. As this court sai d in Blanton and Strong , “felonies of a violent nature reflect on the moral character of a witness,” and, as a r esult, “this evidence is notusually without probative value.” Blanton , 926 S.W.2d at 960; Strong , slip op. at 2. The defendan t’s reliance upon State v. Farmer , supra , and Long v. State , 607 S.W.2d 482, 485-86 (Ten n. C rim. App.), per . app . denied (Tenn. 1980), is misplaced. These cases are distinguis hable upon the facts. Both of these cases involved the

use of identical or simila r offenses, and the offenses had minimal, probati ve value for impeachment purposes.

F.

This court is of the opinion the trial c ourt did notabuse its discretion by ruling the State of Tennessee could use the defen dant’s prior felony murder conviction to impeach him if he had opted to testify in suppo rt of his defense. As previously noted, th e offenses of felony murder and rape are di ssimilar ; and the conviction wa s probative of the defendant’s credibility ifhe had taken the stand and claimed he did not rape the victim, or, in the alternative, if he had claimed the victim cons ented to the sexual penetrati on. While the defendant did not testify or pr esent an y witnesses

in support of his defense, he attempted to establish reasonabl e doubt by cross-exami ning the state’ s witnesses, attempting to discredit the scientific evidence, and arguing the weaknes

ses in the state’s case to the jury during summation. In short, if the defendant had testified he w as not the perpetrator of the rape or, in the alternative, the vi ctim consented to the sexual penetration, these tw o factual issues would hinge primarily upon the cr edibility of the vic

tim and the defendant

albeit there was scientific evidence and pr oof of other similar rapes to establish his guilt. This issue is without merit.

II.

The defendant contends the trial court committed error of prejudicial dimensions by1 This same evi d ence was presented in the defendant’s first degree murde r trial.

State v. Collier V. Harris , Shelby County No.02-C-01-9603-CR-00095 (Tenn. Crim. App., Jackson, December 3, 1997). 10 permitting the State of Tennessee to introdu ce evidence he had rap ed two other women during its case-in-chief. He argues the rapes of these tw o women were too

remote in time from this case, and the two rapes “wer e not sufficiently ‘unique’ in their commissionso as to be admissible in the present case.” The State of Te nnessee contends t he manner in which the defendant committed the two pri or rapeswasso unique that the evidence clearly points to him as the perpetrator. The State of Tennessee gave the defendant noti ce t hat if he opted to testify in support of his defense, the state would us e three prior bad acts, the r ape of three othe r women, to impeach him pursuant to Rule 608(b)(3), Tennessee Rules of Evidence. During the course of the trial, the state advised defense counsel i t was going to present t wo of the
women as part of its ca se -in-chief. A jury-out hearing ensued. The trial court stated in ruling: “I do recall the facts. I’m going to let them tes tify.” 1 The trial court did not st ate the legal basis for admitting this evidence. Furthermore, neither part y requested the

trial court to state the reasons why it was introducing the proof of other crimes.

A.

The State of Tennessee presented two w itnesses, Sarah Johnson and Angela Arnold. Johnson testified the defendant raped her on June 13, 1991. Arnold testified the defendant raped her on November 20, 1993. The defend ant raped the victim in this case on October 11, 1993. Johnson testified shewas wa lking along Navy Road in Millington w hen the defendant stopped and offered her a ride. She had known the defendant for six years. The defen dant turned onto Bethel Road and proceeded to Edmond O rgill Park. They stopped at the park and talked for a peri od of time. The defend an t then drove toward Tipton County. He parked his vehicle in a desolate

area on a back road. Both the defendant and Johnson exit ed the veh icle on their respectiv e sides to urinate. The defenda nt the n walked around the vehi cle and told Johnson to remov e her pants. She11

thoughthe was kidding. When she attempted to walk away, the defendant placed his arm around her neck and squeezed unti l she lost consciou sness. W hen she regained consciousness, she was on the ground near the rear of the defendant’s vehicle. She next remembered bein g in th e back seat of the defendant’s vehicle. Her pants had been removed. The defen dant vaginally penetr ated her in the back seat. He then drove to a boat ramp at RichardsonL anding in Tipton County, an other desolate area, and the defendant raped the v ictim aga in inside the vehicl e. Wh en Johns on refus ed to have intercourse with the defendant, he told her, “You know how I can get it. Don’t make me do it, be that way again.”

The defendant then drove the vic tim to her residence. She arrived home at 3:00 a.m. He threatened her i f she revealed what had occurred. Arnold had known the defendant for approxi mately six months. She h ad gone to
a friend’s apartment after having an ar gument with her husband. When plans to attend a nightclubin Memphi s failed , the def endant a sked Arno ld to take him home . Subsequ ently, the defendant and Arnold discussed the well-being of a mutual friend. The mutual friend’s girlfriend had been killed in a motor v ehicle accident. The defendant told Ar nold their friend
was probably at the “tree” in Edmond Orgill Park.When they arrived at the “tree,” no one was there. They sat on the hood of the vehicle and listened to music. The defendant attempted to kiss her. She resis ted and attempted toget into the vehicle.The defendant shut the door so she could not e nter the vehicle. The defendant then grabbed Arno ld around the neck, applied a choke hold, and Arnold lost consciousnes s. When she regained consciousness, she was lying face down behind the vehicl e. The defendanthad pulled her pa nts down. When Arnold tried to lift hers elf from the ground, the defendan t applied a choke hold a second time and Ar nold again lost conscious ness. When she regained consciousness, the defendant wa s vaginally penetr

ating her. The defendant told her “you’re not any goo d.” He mad e her pou r vodka on t he genita l area of her body. The def endant drove to a store and pur chased a package of condoms. He the n drov e to another desolate location. He asked Arnold if she wanted to die. He placed a condom on his sexual organ an d raped Arnold a second time. O nce he had completed the act, he removed the condom and placed another condom on his sexual organ. He made Arnold geton top of him while he vaginally penetr ated her a third time. Arnol d testified she12

tried to “just get it over with” so she could go home. The defendant drove Arnold’s vehicle to his residence. Before exiting the v ehicle, he threatened Arnold and told her not tocall the police or reveal w

hat had occurred to anyone. T here are numerous similariti es incident to the above rapes and the rap e of th e victim in this case. First, Johnson and Arnold knew the defendant. The victim in this case did not know the defendant by name, but she knew who he was and the type of automobile he drove. He drove thr

ough the victim’s nei ghborhood frequently. Sec ond, all three rapes originated and/or occurred in a secluded area outside of Mill ington, Tennessee. Johnson’s rape originated in Mill ington, but the actual rape occurred just across the Tipton County line just north of Millington. Thir d, al l of the r apes occurred late in the ev ening or during the earlymorning hours. Fourth, the defendant alway s took the victim to a remote area where there were no dwellings or lights. Fifth, t he defendant never attempted to conce al his identity. Sixth, the defendant used a choke hold to subdue all three victims. The hold caused two of the victims to lose consciousness. When one of the victims awakened, the defendant applied the choke hold a second time to sub due the victim. He threatened a second victim with the choke hold if she did not cooperate. The victim in this case testified she became dizzy and shor t of breath, but she did not lose c onsciousness. While the victim was unconscious, the defendant w ould remove thevictim’s clothing. Seventh, the defendant made efforts to avoid leaving semen. In two of the rapes, the defendant wore
a condom. In the Arnold rape, the defendant made the victim wash the genital area of her body with vodka. Eighth, the defendant i nstructed the victims no t to tell anyone

about the rapes. If the victims re vealed the rapes, he threatene d to rape them again.

B.

The admissibility of evi dence regarding the Johns on and Arnold rapes invol ves Tenn. R. Evid. 404(b). This rule states:

(b) Other Crimes, Wrongs, or Acts . Evidence of other crimes, wrongs, or

acts is not

admissible to prove the c haracter o f a person in order to show action in conformity w ith th e charact er

trait. It may, howev er, be admissible for oth e r purposes. The conditions w h ich must be satisfied before13 allowing such ev

idence are: (1) The court upon request must hold a hearin g outside the jury’s presence; (2) The court must determine that a mater ial issueexists other than conduct conforming witha character trait and must upon request state on the record the material issue, the

ruling, and the reasons for admitting the ev idence; and (3) The court must exclude the evidence i f its probative value is outweighed by the danger of unfair prejudice.
In Bunch v. State , 605 S.W.2d 227, 229 (Tenn. 1980), thesupreme court said proof of other crimes may

be admitted to establish motiv e, identity, lack of

mistake or accident,
or the existence of a common scheme or plan if (a) relevant to one of these issues and (b) the probative value of the ev idence outweighs the danger of unfair prejudice. This court must now determine w hether the admission of this ev idence was relevant to establish one of the excepti ons to Rule 404(b).
(1)
During thejury-out hearing p ursuant to Rule 404(b), the state discussed all of the excep tions outlined in Bunch . The state did not indicate which of these exceptions it contended was relevant in th is case. Much of the hearing was spent discussing th e similarities

between all three rapes and the uniqueness of the defendant’s conduc t during the rapes. It ap pears the st ate ultima

tely limited the relevance of the evide nce to the exceptionsof identity and the presence of a common sc heme or plan. This court is of opinion that the evidence was also rel evant on t he issues of inten t and ide ntity. Although the defendant did not testi fyor present witnesses in support of his defense, it was his contention the victim in this case consented to the sex ual intercourse. He attempted to establish this thr ough cross-examinatio n. The defendant concedes that if the evidence of other

rapes was properly admitted, it was only admissible to establish his identity. The i ssue of identi ty was a major iss ue during the trial. The v ictim told the investigating

officers the defendant’s name was “Gary Marvin.” She later discovered this14

was not the defendant’s name. Much was made of this discrepancy. H e also attempted to discredit the DNA ev idence presented by the state that linked hi m to the rape. During closing argument, defense counsel told the jury the DNA evi dence should be “view [ed] with caution” in an effort to discredi t this scientific evi dence.

(2)

The appel late c ourts of this state have appr oved the use of other acts in a rape prosecution. In White v. State , 533 S. W.2 d 735 (Tenn. Crim. App. 1975), cert
. denied (Tenn. 1976), the trial court allowed evi dence to establish that White had committed similar rap es within a two-month pe riod. Id . at 743. The evidence was admitted t o establis h White’s identity as well as acourse of conduct. Among the similari ties were: the defendant’s use of a knife,forcing the victims into the backseat of a motor vehicle, forcing the victims to disrobe, d iscussion of illicit n arcotics with the v ictims, and allowing

the victi ms to use a tissue. White also rode in a motor v ehicle with the

victims, took their purses, and released the victims on a street

. Id . at 738. This court noted the rapes were so “strikingly similar thatthere [could] be no other conclusion than the fact that the defendant committed all three rapes. . . .” Id . at 741. In Bunch v. State , the supreme court approved the use of another armed robbery in a prosec

ution fo r armed robbery because this evidence was relev

ant to the issue of identity. 605 S.W.2d at 231. The court stated:

[T]he modus op erandi of the other crime and of the crime on trial must be substantially identical and must be so unique that proof that the defendant committed the other offense fairl y tends t o establish that he also committ ed the offense with which he is charged.
605 S.W.2d at 230 (emphasis in original ). Among the similarities noted i n Bunch : the robberieswere accomplished by two men and one woman, the v ictimswere placed in restrooms, the two victim businesses were in close proximity, and the robberies occurred on the same day separated by a few hours. The supreme court fur ther noted: [I]t is not necessary

that the other

crimebe identical in every15 detail to the offense on trial; it is s ufficient if evidenc e of the other crime su p ports the inference that the perpet rator of it, shown to be the defendant, is the same

person who committed the offense on trial.
605 S.W.2d at 231. The same analysis used in determining a 404(b) is sue has been used in analyzing whet hers everance of similar char ges would be proper. State v. Peacock , 638 S.W.2d 837, 840 (Tenn. Crim. App.), per . app . denied (Tenn. 1982) (This court affirmed the denial of severing several armed robberies and rapes because the crimes were part of a common schemeor plan. Peacock commit ted se veral armed robberies at residences in close proximity to each other. In each instance, he knocked befo re entering, demandedmoney, drugs and jewelry, forced his victims t o disrobe, u sed a pistol and threatene

d each victim, threatened the victims if they looked at his face, and threatened the victims if they called the police.); State v. Wooden , 658 S. W.2d 553, 557-58 (Tenn. Crim. App.), per . app . denied (Tenn. 1983) (This court affirmed the joinder of several se x crimes on the grounds the offenses were similar in modus operandi and occurred within a close proximity of the time and place. The similar ities incl uded: the vi ctimswere young whi te females who lived in an apartment complex and were alone at the time of the offense; the attacker was in the apartmentwhen the victim arr ived or would enter shortly thereafter; the a t tacker hid his face; the attacker

performed cunnilingus before peni le/vaginal rape; he r equired thevictim to rub his ni pple s; and the offenses took place over nineteen months within apar tment complexesin close proximity to each other.); see also State v. Edwards , 868 S.W.2d 682, 693-94 (Tenn. Crim. App.), per . app . denied (Tenn. 1993) (This court upheld the denial of
severance of multi ple rape charge s based u pon the r

easonin g of Wooden , Peacock , and B unch

. The vi ctims were white females between the ages of 21 and 24. The attacks occurred within a two-mil e radius at apartment complex es or duplexes. All the victims were alone and asleep. Each incident involv ed a burgla ry before the rape. He usual ly took money. All the victims li ved on the ground floor. The att acker instructed all the victims to remain quiet; he rubbed each vi ctim’s breasts and digi tally penet rated the victims. The crimes occurred over a twenty-month period.). While the descriptions of the acts c ommitted by the d efenda nt were similar, and16

though there are so me differences in the testimony g iven by Johnson and Arnol d, the similarit ies between the offenses far outweig h the minor differences. See State v . McKnight , 900 S.W.2d 36, 52 (Tenn. Crim. App. 1994), per . app . denied (Tenn. 1995). This court must now address the weighing of the probative value versus the unfair prejudice in the admission o f this evidence.

(3)

Rule 404(b)(3) requires the trial cou r t to weigh the probativ e value of the other crimes evidence against the danger of unfair prejudice. The record does not reflect w hy the trial court found the testimony given by Johnson and Arnold was probative and why it outweighed the danger of unfair prejudice to the defendant. The factors to beconsidered when undertaki ng the weighing process mandated by Rule 4 04(b)(3) include the pros ecution’s need for the evidenc e, the likelihood th e defendant committed the oth er crimes, and the degree of relevance to the issues. Edwards , 868 S.W.2d at 691. Since the defendan t attempte d to establish the sexual intercourse with the victim was consensual, and the defendant made an effort to discredit the DNA scientific evidence, the state needed this evidence to establish the victi m did not consentto the sexual intercourse w ith the defendant. The evidence w as also needed to establish the defendant was the pe rson who raped the vi ctim in this case. This court concludes

the probative value of the evidence admitted in this case far outweighed the danger of unfair prejudice to the defendant. This issue is without merit.

III.

The defendant contends the trial court committed prejudicial dimens ions when instructingthe jury regarding the proof of other

crimes, i.e. , the rape of thetwo women who testified as prosecution witness es. He argues t he instru ction sho uld have been limited to p rovi ng his identify, if the evidence was admissible. The record reflects the trial court17

included the following categories in the instruction in addition to identity: the complete story of the crime, a scheme or plan, moti ve, intent, and guilty

knowledge. The defendant concedes trial counsel did not object to the instruc tion. In addition, trial counsel did not include thi s issue in the motion for a new trial. Since reversal on this issue would result in a new trial, theissue was requir ed to be included in the motion for a
new trial. Nevertheles

s, appellate counsel respect fully requests

this court to

consider this iss ue becau se it constitutes plain error on the face of the record. He cites this court’s opinion in State v. Adkisson , 899 S.W.2d 626 (Ten n. Crim. App. 1994) to support his argument. The State of Tennessee, citing federalcases, contends the failure to raise this issue does not constitute plai n error on the face of record. This court is of the opinionthe defendant has waived this issue. First, the issue w as not raised in the motion for a new tri al. Tenn. R. App. P. 3(e); State v. Keel , 882 S.W.2d 410, 417 (Tenn. Crim. App.), per . app . denied (Tenn. 1994). Second, assuming arguendo this court is willing to consider this issue pursuant to Ru le 13(b), Te nnessee Rules of Appellate Procedure, or Rule 52(b) , Tennessee Rules of Criminal Procedure, neither party has briefed this issue

on the merits. Thus, the issue is waived pursuant to Rule 27(a)(7), Tennessee Rules of Appellate Procedur e. This court parenthetically notes a trial court should li mit the scope of theinstruction
on proof of other

crimes to the specific reas on or reasons for its admissi on into evidence. The remaini ng reas

ons whi ch woul d justify the ad mission of suc h evidence should be deleted from the pattern jury inst ruction. This was not done in this case. However, if this issue was considered onthe merits, this court w ould hold the error was harmless. Tenn. R. App. P. 36(b). This issue is without merit.

IV.

The defendant contends the trial court committed error of prejudici al dimensionsby sentencing him as a multiple offender and imposing a R ange II sentence. He arg ues he is a standard offender, and the sentence imposed should hav e been within Range I. The18

State of Tennessee correctly confesses error. The state agrees the de fendant is a standard offender, and the trial cour t should have imposed a Range I sentence. The record reflects the defendant has been convicted of simple assau lt, two counts of s imple possession of marijuana, and possession of a dangerous weapon, all misdemeanors. He was convicted of murder first degree. The offense occur red on November

29, 1992. He was convicted of the offense on September 25, 1995. He was sentenced to life imprisonment on N ovember 15, 1995. In the context of this case, the phrase “multiple offender” is defin ed in Tenn. Code Ann. § 40-35-106(a)(2)(1990) in the following manner:

(a) A “multiple offender” is a defendant w ho has received: * * * * (2) One (1) Class Aprior felony conviction if the defendant’s convictio n offen se is a Clas s A or B fel ony. (b) In determining the

number of prior convictions a defendant has received: (1) “Prior

conviction” means a convic tion for an offense occurringprior to thecommission of the offense for which the defendant is being sentenced.
Th e Sentenc ing Commission Comments acco mpanying this statute she d light on the meaning of the phrase “prior felony conviction.” The Commission Comments state:

The prior f elonyconvictions used to trigger the multiple offenderstatus mu st have occurred prior to the commission of the offense forwhich the defendant is being sentenced. In this sense, the multiple offender classification is a recidivist provision designed to punish persons who have been previously conv

icted and then commit new cr imes. . . .
In State v. Blouvett, 904 S.W.2d 111 (Tenn. 1995), the Tennessee Supreme Court addressed the precise issue raised by the defendant. Justice Birch, sp eaking for a unanimous court, stated: “[I]t i s clear from the comments [accompanying the applicable
s tatute] that ‘prior conviction’ means a conviction that has been adjudicated prior to t h e commission of the more recent offense for which sentence is to be imposed.” 904 S.W.2d at 113. In other words, before a prior conviction can be used to enhance the sentencing19

range, the offense must have been commit ted and the accused convicted of the offense prior to the commission of the offense for w hich the accused is being sentenced. In this case, the first degr ee murder offense was committed prior to the rape of the
v ictim in this case. However, the defendant was convicted of the murder first degre e offense afterthe commission of the rape. The rape occurred on October 11,1993. The defendant was not convicted of the murder first degree offense until September 25, 1995. Conseque ntly, the murder first degree conv iction could not be used t o enhance the defendant’s sentencing sta tus from a Range

I standa rd offe nderto a Range II multiple offender. This cause is remanded to the trial court for a new sentencing hearing and th e imposition of a Range I sentence. If either party is aggrieved by the sent ence imposed by the trial court on rem and, the agg rieved party may appeal as of ri ght pursuant to Tenn. Code Ann. §§ 40-35-401 or -402.

__________________________ ____ __________________

_ JOE B. JONES, PRESI DING JUDGE

CONCUR:

______________________________________ DAVID H. WELLES, JUDGE

______________________________________ JOE G. RIL EY, JUDGE