### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE A pr il 7, 200 4 S es sio n

ST A TE OF TE N N ES SE E v

. M IC HA EL WA R D , II

Direc t Appeal from the Cr im inal Cou rt for Coffee County Nos. 30, 857 L. Craig Johnson , Judge

No. M2003- 00734-CCA -R3-C D - F iled Jun e 22, 2004

The De fendant, Michael Ward, II , was c onvicted by a jury o f at t empt ed sec ond deg ree murder, ag g ravated spou s al rape, espe cially ag g ravated kidnapping , ag g ravated robbe ry , and ag g ravated burg lary . I n this direct appe al, the De fendant raises five issues: (1) whether the evidenc e is sufficie nt to sustain his five convictions; (2) whe ther double je opardy bars multiple convictions that all require proof of the eleme nt of serious bodily injury ; (3) whe ther the trial court err ed by admitting evide nce of the De fendant’s prior bad acts; (4) whether the Defenda nt was prejudiced by the S tate’s f ailure to provide him with discovery items; and (5) whe ther the Defe ndant is entitled to a new tria l based on the cumulative e ffe ct of the a lleg ed trial e rror s. We affirm the judg ments of the trial c ourt.
Tenn. R. App . P . 3 Appeal as of Right; Judgme nts of

the Circ uit Court Aff

irm ed

D AVI D H. W EL L ES , J ., delivere d the opinion of the court, in which A L AN E. G L EN N and R OB E R T W. W EDEMEYER , J J ., joined.

A n t h o n y A v e r y , K n o x v i l l e , T e n n e s s e e , f o r t h e ap p e l l a n t , M i c h a e l W ar d
, II.

Paul G . Su mme rs , A tto rn e y Ge ne ra l a ndRe po rt e r; El iza be th Ma rn e y , As sis ta nt A tto rn e y

Ge ne ra l; C. Mic ha e l L a y ne , Di stric t Attorne y Ge ne ra l; a nd Jaso n Pon de r, As sis ta nt D ist ri c t A tto rn e y

Ge ne ra l, for the a ppellee, State of

Tenne ssee.

OP IN ION

The victim, Michelle Ward, w as mar ri ed t o t he De fendant on November 9, 1997. They separ ated in Aug ust of 2000. Th e De fe n d ant moved out, leaving Ms. Ward to carefor he r three children and the Def

endan t ’s son. I n October of 2000, Ms. Ward obtained an order of protec tion ag ainst the Def

endant whic h prohibited direc t communication betwe en them and w hich also denie d the Def endant a cce ss to Ms. Ward’s residenc e. Ms. War d moved to a new residenc e in November of 2000. Ms. Ward t estified that the Defenda nt violated t he orde r of pr otection numerous times by calling her, spy ing on he r, following her, and threatening her. H e told her that he wante d to ge t back-2-

toge ther with her

and that he w as addr essing his problems with medication an d t h er apy . On one

occa sion, while Ms. Ward was returning home from shopping, she noticed someone in the back of her van. When she g ot home, she and he r sister, Ashley Cupp, ope ned the back of the van and f ound the De fe nd a nt. He g ot o ut o f the va n a nd wa lke d a way fr om the m. He la te r r e turne d to the ir ho me y elling pr ofanities and de manding that Ms. Ward g ive him his son, which she ultimately did. Approxim ately thirty minutes later, the Def endant r eturne d and apolog ized, say ing “ he just wanted [Ms . Ward] back in his life, and he w as g oing to do whatever it took.”
On the nig ht before the attac k that is the s ubject of this appeal, the D efe ndant sent Ms. Ward

sever al elec tronic pag es using a numeric code that they devised while they wer e mar ried. Ac cording to Ms. W ard, the pag es read, “‘Till death do us part” and “Death by rape .” Ms. Ward did not take the pa g e s se ri ou sly

be c aus e sh e wa s a c c us tom e d to his thr e a ts.
On the next day , November 20, 2000, the Def

endant c alled Ms. Ward at he r off i ce in the

early afte rnoon. He apolog ized for the pag es and said that he had a che mical imbalance . He a ssured her that he was in ther apy and he w ould work hi s problems out so that he could be good to her and the c hil dr e n. A fe w minu te s af te r 10: 00 that eve nin g , M s. War d ma de a trip t o h e r o ld r e sid e nc e to do laundry

and make telephone c alls because her washing machine and phone we re stil l located the re . A s sh e wa s a

bo ut t o le a ve thr ou g h th e fr on t do or , s ome on e fo rc e d th e do or c los e d. She fe lt

a n a rm g o a ro un d h e r n e c k a ndfo rc e he r i nto “ a he a dlo c k p os iti on .” Th e n s he fe lt s e ve ra l bl ow s to the lef t s id e o f h e r h e a d

. Sh e y e ll e d f o r th e D e f

e n d a n t to s to p , b u t h e d id n o t. Sh e u r ina ted and collapsed to he r knee s. The Defendant forc ed Ms. Ward onto her ba ck and planted his knees on he r chest while he continued hitting her in the he ad with his fists. The victim testified that “he looke d rig ht at me in my

ey es, and the n he starte d to choke me.” The victim ke pt say ing their daug hter’s

na me , h op ing to “ sn ap [th e De fe nd a nt] o ut o f i t.” Ev e ntu a lly the vic tim

los t c on sc iou sn e ss.
When she reg ained c onsciousness, s he was still on the floor, but the De fendant had re moved her pants and was “ pulling [her] up onto [ her] knees.” As he did so, he told her to not make a sound,

a nd he hit he r a fe w mor e tim e s in the he a d. Th e De fe nd a nt the n a na lly pe ne tr a te d th e vic tim

wi th his pe nis f

or thirty seconds or a minute. The Def endant then rolled her onto he r bac k and climbed

on top of he r. Ms. War d kic ke d him
, bu t that “ jus t ma de him ma dd e r. ” I n h e r w or ds , “ He tol d me he wa s g oing to kill me, and he put his arms and his hands ar ound my neck, and that time, I wanted him to jus t finish it, j ust go, but I just went unconscious. I didn’t die.”

When Ms. W ard r eg ained c onsciousness the sec ond time, she was na ked on the floor in her van. She hea

rd the Defendant say that he had a plac e picke d out where he wa s g oing to dump her body , and he w ould ge t away with it. The victim looked out the window and saw a sign f or Sewane e; there fore she knew that she was near Monteag le. She found he r clothes on the f loor of her van, but they wer e wet with urine. She testified that the De fendant said he could not believe that she

was a live. He a lso said “he thoug ht for sure he had [her ] that time.” Ms. Ward testified that the Def endant ha d a metal pipe w ith him that was “about two fee t long” and “he avy .” The Def endant th r e a te n e d to h it h e r w ith it

. F o r ab o u t a n h o u r M s

. Wa r d s tay e d d o w n , a n d th e D e f e ndant talked about wher e he was going to bury her. Eve ntually

the victim beg an beg g ing the Def endant to let her-3-

sit up fr on t w ithhim

so the y c ou ld w or

k th ing s o ut. She kis se d a ndhe ld h is h a nd , a nd he le t he r s it in the front seat. Ms. W ard e x plained to him that she nee ded to g et home so her daug hter would not be wo rrie d. Th e De fe nd a nt ap olo g ize d a ndsa id that, i f h e too k h e r h ome , s he wo uldha ve to w a it

un til a ft e r 6 :00 a .m. to c a ll the po lic e so he wo uld ha ve tim e to kill him se lf . M s. War d p ro mis e d to abide by his wishes, and he e ventually let her g o at an automobile body shop. He g ave he r his “84 Lumb e r” c ap, his watc h, his ne c kla c e , a ndhis we dd ing ri ng to g ive to his c hil dr e n “ to r e me mbe r h im by .”

After

the Def endant g ot out, Ms. W ard immediate ly left in her van. She g ot lost, but she eventua lly

g ot home betwee n 3:00 and 3:30 in the morning . Shortlyafte r she g ot home, the Def endant r eturne d in his truck. He stopped in front of her house, honked his horn, and plac ed an object in her

mailbox , which turne d out to be a cassette tape of hi s “last will and testament” and a statement to the victim and their c hildren.
Eventually

the police c ame, a nd Ms. Ward was take n to the emer g ency room, wher e she stay ed for approximately three hours. Mea nwhile, the De fendant called the vic tim’s former residenc e and le ft a messa g e on her answe ring machine. In the messag e, he a pologized and aske d her t o pag e him on the pag er he took from her . I n addition to the pag er, she determined that the De fe nd a nt h a d ta

ke n e ig ht y do ll ars f

ro m he r. Ac tin g on the a dv ic e of po lic e of fi c e rs , th e vic tim

c on ta c te d th e De fe nd a nt andarr a ng e d a me e tin g , a ndthe po lic e app re he nd e d h im.

Ms. War d testified that, afte r the attack, her “whole body hurt.” Her head h u rt an d was swollen, so doctors performed a CAT scan. She w as unable to take a show er for day s beca use of the pa in. Whe n s he fi na lly

did , h e r m oth e r h a d to he lp h e r. She wa s u na ble to w a sh or br

us h he r h a ir beca use her head w as so sore, and she had trouble urinating . Her doctor pre scribed Z o loft for anxietyand depr ession, which we re a ssociated with post-traumatic stress sy ndrome that oc curr ed months after the attack. She was pre scribed Re meron for nightmar es. She had to take Xana x for he r anxiety . I n her w ords,

I wo uld n’ t le a ve my ho us e , a ndI wo uld n’ t g e t in my

c ar. I wa s a fr a id h e wa s inmy
c ar. I c a ll ed th e po lic e de pa

rt me nt o n a

da ily ba sis to s e e if

he wa s st ill in j a il be c aus e I tho ug ht h e wo ulde sc ape , s o they kep t cha ng ing the Z olo ft to P a xil to P ro z ac

. No t h i n g wa s wo rk i n g.

Dr. Christopher Smit h was wor king in the e merg ency

room at Manc hester Me dical Center

on No ve mbe r 2 1, 20 00 , a ndhe tr e a te d th e vic tim . H e e xpla ine d th a t Ms . Wa rdha d “ mul tip le tr auma to h e r f a c e a ndto h e r e xtre mit ie s a nda lot of br uis ing .” She ha d low blo od pr e ssu re , s low , d e lib e rate sp e e c h, a nddim ini sh e d me mory , w hic h a rea ll s ig ns of

sh oc k. She wa s d e pr ess ed anda nxiou s. Th e re we re “ mic ro he mor rh a g e s b e hin d [he r] e y e s that show e d tr auma to the he a d. ” Th e se microhemorr

hag es ar e also c onsistent with having be en choke d. The doctor noted m uch swe lling

a nd br uis ing abo ut Ms. War d’ s f a c e , a ndhe r n e c k mu sc le s w e resp a smi ng , w hic h in dic a te s tr auma to the neck. She c o m p l ai n ed o f p ain i n her a bdomen. Dr. Smith also testified that there was-4-

evidenc e of r ecta l pen et ra t i o n , there was bruising and fe cal mate rial ar ound her r ectum, and the re
wa s tr auma to the va g ina l are a . D r. Smith e xpla ine d th a t se ve rehe a d tr auma a ndbe ing c ho ke d to the p o in t o f u n c o n s c io u s n e s s c a n c au s e a p e r s o n to lo s e c o n tr o l o f th e ir b o w e ls

. M s

. Wa r d had a poor ra ng e of motion in her upper and lower ex tremities due to tenderness in those are as. The doc tor said that the vi ctim suffe red bruising to her throat, che st, left shoulder, arm, thighs, re ctum, and fa ce, and the br uising to her

fac e wa s acc ompanied by swelling . Dr. Smith testified that all of the victim’s injuries wer e consistent with her explanation of how the Def endant attacked he r. When the doctor

was a sked whe ther there was a subst antial risk that Ms. Ward could have died during the assault and rape , Dr. S mith replied, “Wit h the amount of t rauma , she could have, y es.” On cr oss examination, Dr. Smith said that the victim did not suffe r any broken bone s during the attac k.

Th e vic tim ’s sis te r, As hle y Cup p, te sti fi e d th a t, w he n th e vic tim fi na lly g ot h ome c los e to 4:00 a.m. on November 21, she was “blee ding f rom hea d to toe,” we aring nothing but socks a nd a jacke t, and scre aming
, “I ’m alive.” The victim ha d a black ey e, her body was “ all bruised up,” and blood was “all over he r fa ce.” Ms. Cupp ran to a neig hbor’s house, but no one answe red the door. There fore she drove to the home of Billy Butler
, a police office r from whom she and Ms. Ward were renting their house, a nd called the police. De tective B utler testified that he did not g et out of bed or respond himself be cause he wa s not on dutyand he did not know that the pr oblem had occ urre d at h i s r e n t a l p r o p e r t y.

De te c tiv e Ra y

Ste wa rt , Jr. , a n in ve sti g a tor

wi th the Ma nc he ste r P oli c e De pa rt me nt, responde d to M s

. C u p p ’s ca ll. He testified that “it wa s obvious [ the victim] had sustained a n
e xten siv e be a tin g .” She ha d mark s a ll ov e r he r fa c e a nd ha nd s, he r e y e s we resw oll e n - on e a lmo st shut, her mouth was swollen, a nd she wa s very upset. Detec tive Mark Yother also testified that the vic tim ha d b e e n “ be a te n v e ry

ba dly .” He se arc he d M s. War d’ s v a n a ndfo un d h e r j og g ing pa nts , which we re “ soak ed ” wi t h urine. He also found the De fendant’s ring , watch, ne cklac e, hat, a nd jacke t. Detec tive Yother w as at the vic tim’s former residenc e when the Def endant c alled and le ft a messag e on which he said that “they neede d to talk about what had happene d last night” and aske d the v ic ti m to p a g e h im

. A t th e r e q u e s t o f th e p o li c e o f f ic e r s , M s

. Wa

r d p a g e d th e D e f

endant; he called, and they

ag ree d to meet in Cookeville. On the way th er e, t he police of

fice rs spotted the D e f e n d a n ta n d t o o k

h i mi n t o c u s t o d y.

J oe Miner, a fore nsic scientist w ith the Tennesse e B ureau of Investig ation, testified that the vag inal and ana l swabs that wer e take n from the v i ct i m tested positive for the pr esenc e of se men. The sperm did not match a sample of DNA take n from the victim’s boy friend. Mr . Miner testified that he wa s n ot a

ble to ru le ou t the De fe nd a nt a s a po ssi ble do no r o f the se me n; h ow e ve r, he wa s a lso

u n ab l e to s ay t h at i t wa s , i n fa ct , t h e D ef en d an t ’s s em en

. He d i d t es t i fyt h at , s t at i s t i ca l l y s p ea k i n g, he wa s able to rule out 95 % of the world’s Cauca sian male population as potential donor s based on his a na ly sis of

the va g ina l sw ab. B a se d o n h is ana ly sis of thea na l sw ab, wh ic h w a s a mor e c omp le te sample, he te stified he could r ule out 99.5 % of the population.-5-

Doug las Coulter, the victim’s ex-hu s b and, testi fied on be half of the Def endant. He stated that, on one occasion whil e they wer e married, he and Ms. Ward had a big fig ht. She hit him , and he hit he r b a c k. She re sp on de d b y c a lli ng the po lic e a ndg ot a re str a ini ng or de r a g a ins t hi m.

Jar e d G e nta , a n a c qu a int a nc e of thevic tim, te sti fi e d f

or the De fe nd a nt that he a tte nd e d a pa rty at the victim’s house shortly afte r the attack. He said that the victim ha d small “ lesion” on her e y e, but she otherwise appea

red to be fine. The y

all d ra n k an d s m o k ed marijuana , and Ms. Ward wa s kis sin g so me ma n th a t sh e sa id w a s th e De fe nd a nt’ s b os s. On c ro ss e xami nati on , Mr. Ge nta identified a photog raph of the victim’s former

residenc e as th e location of the party . Howeve r, at the tim e t he party

was supposed to ha ve occ urre d, the victim no longe r lived there , and it was

c o m p l e t e l y e m p t y.

L inda Genta , the Def

endant’ s sister and friend of the victim, testified that Ms. Ward told her sh e wa s d a tin g her landlo rd , B ill y B utl e r. She a lso te sti fi e d th a t Ms . Wa rdon c e tol d h e r h ow to fabricate e vidence of spousal abuse in or der to be g rante d full custody of childre n in a divorce action. I n f a c t, Ms. Ge nta c la ime d to ha ve se e n th e vic tim br uis e he rs e lf

by hittin g he rs e lf

in the c he e k w ith a toothbrush holder. She also testified that the victim told her that anal sex wa s the best sex she had

ever had beca u s e i t af

forded her “ instant gr atification,” and she e ng ag ed in ana l sex with the Def endant somew hat re g ularly while they

wer e mar ried.

Vi c kie Matth e ws , the De fe nd a nt’ s aun t, te sti fi e d th a t th e De fe nd a nt a rrive d at he r h ou se in Kn oxvil le around 6: 00 or 6: 15 a .m. on the mornin g of No ve mbe r 2 1, 20 00 . Sh e e sti ma te d th a t it would take thre e to three -and- one-ha lf hours to g o from Coffe e County , wher e the crimes occ urre d, to her house in Knoxville. Ms. Matthews also testified that Ms. Ward once told her at a party how to o btain a

fa vo ra ble div or c e . M s. War d a dv ise d h e r t o b ru ise he rs e lf, a c t di ff e re ntl y , a ndte ll p e op le that her husba nd had “g rabbe d” or “ shoved” he r, and she would g et eve rything she wanted.

Th e De f e n d a n t a l s o t e s t i f

i e d

. H e s a i d t h a t M s

. W ar d w a s a h e a v y d r i n k e r a n d t o o k Pa xil. He a lso s a id th a t s h e v io late d th e r e s tr a in in g o r d e r b y c a ll in g h im a n d c o mi n g ar o u n d him. He testified that he eng ag ed in anal sex with the victim while they wer e mar ried, but it was neve r for ced. Th e De fe nd a nt ma int a ine d tha t he wa s sic k on Nov e mbe r 1 9 a nd20 . O n th e nig ht o f the 20 th, Ms. War d c a me to h is h ou se . Ac c or din g to him , the y e ng a g e d in ora l se x, bu t no int e rc ou rs e . L a te r i n his te sti mon y , h e sa id that the y did ha ve se xua l int e rc ou rs e , bu t it wa s c on se ns ual. L a te r that ni g ht, he and Ms. Ward g ot into an arg ument over the custody of the c hildren, and he told her to leave . He te sti fi e d th a t he the n “ pu sh e d” he r o ut the do or . Sh e le ft he r p a g e r at hi s h ou se . T he De fe nd a nt a lso stated that he borrowe d about fifty dollars from Ms. War d, and he g ave he r his hat, jacke t, necklac e, watch, and ring as “collate ral.” Shortly afte r Ms. Ward left, the D efe ndant depa rted for Knoxvi lle.

The De fendant specifica lly testified that he did not try to kill t he victim; he mere ly pushed her out of his house. H e also de nied maki n g an y t h re ats to her. Likewise, he denied taking her any wher e, and stated that he did not g o to her house. H e said that he did not rob her; he “ borrowe d” fifty dollars. Further m o re , he testified that he did not even know how to g et to Monteag le. The De fe nd a nt o pin e d th a t Ms. War d bro ug ht the se c ha rg e s ag a ins t him to g a in an a dv a nta g e ov e r h im-6-

in the ir di vo rce. Ho we ve r, theState int ro du c e d a s a n e xhibi t th e ir mari ta l di sso lut iona g re e me nt, which wa s signe d by

both the Defenda nt and Ms. Ward on November 17, 2000, three day s befor e the attac k.

Th e State c a lle d th e vic tim’s forme r b os s, Tammy Pa tte rs on , a s a

re bu tta l w itn e ss. Ms. Pa tte rs on te sti fi e d th a t th e De fe nd a nt d id v iol a te the or de r o f p ro te c tio n b y c a lli ng a ndsp y ing on Ms. W ard w hil e sh e wa s at w or k. Th e De fe nd a nt’ s b e ha vio r f ri g hte ne d a ll the e mpl oy e e s, a ndMs. Pa tte rs on e ve ntu a lly

ha d h im a

rr e ste d. She a lso te sti fi e d that th e rewa s n o r e la tio ns hip be tw e e n M s. Ward and Detective Billy Butler

. Finally
, she said that when the victim returned to wor k afte r the attack, she was sca

red and embar

rasse d, and she w as “ne ver the same pe rson.”

SUF F ICIENCY OF THE E VIDENCE The De fendant’s first issue is w hether the evidenc e is sufficie nt to support his convictions fo r a t t em p t ed s ec o n d d egr ee m u rd er , aggr av at ed s p o u s al ra p e, es p ec i al l y aggr av at ed k i d n ap p i n g, ag g ravated robbe ry , and ag g ravated burg lary . Tenne ssee Rule of A ppellate Proc edure 13(e) presc ribes that “[f]indings of g uilt in criminal ac tions whether by the trial court or jury

shall be set aside if the e vidence is insufficient to support the finding s by the trier of

fac t o f gu i l t b ey o n d a

rea sonable doubt.” Aconvicted c riminal defe ndant who challeng es t he sufficiency of the e vidence

on app e a l be ars the bu rd e n o f de mon str a tin g wh y the e vid e nc e is ins uf fi c ie nt to sup po rt

the ve rd ic t, be c aus e a ve rd ic t of g uil t de str oy s th e pr e su mpt ionof inn oc e nc e a nd

imp os e s a pr e su mpt ion of g uil t. See State v. Eva ns, 108 S.W .3d 231, 237 (Tenn. 2003); State v. Carruthe rs, 35 S.W.3d 516, 557-58 (T e n n

. 2 0 0 0 ) ; S t a t e v

. T u g g l e , 6 3 9 S

. W

. 2 d 9 1 3
, 9 1 4 ( T e n n

. 1 9 8 2 )

. T h i s C o u r t m u s t re je c t a convicted c riminal defe ndant’s cha lleng e to the sufficie ncy of the evidenc e if, afte r considering the evidenc e in a lig ht most favorable to the prosec u t i o n , we de termine that a ny rational trier

of fa ct could have found the e ssential elements of t h e crime be y ond a re asonable doubt. See J ackson v. Virg inia, 443 U.S. 307, 319 (1979); State v. Hall, 8 S.W.3d 593, 599 (Tenn. 1999).

On app e a l, the State is e nti tled to th e str on g e st l e g iti ma te vie w o f the e vid e nc e a nda ll

rea sonable a nd leg itimate infere nces which may be dra wn there from. See Ca rruther s, 35 S.W .3d at 558; Hall, 8 S.W .3d at 599. A g uiltyverdic t by the t rier of fac t acc redits t he testimony of the State’s wi tne sse s a ndre so lve s a ll c on fl ic ts in the e vid e nc e in f a vo r o f the pr os e c uti on ’s the ory . Se e State v. Bla nd, 958 S.W .2d 651, 659 (Tenn. 1997) . Questions about the c re d ibilit y of witnesses, the weig ht and value of the evidence, as well as all fac tual issues raised by the evidenc e ar e re solved by the trier of

fac t, and this Court will not re- weig h or re- evaluate the evidenc e. See Evans, 108 S.W .3d at 236; Bla nd, 958 S.W .2d at 659. Nor w ill thi s Court substi tute its own infere nce s d ra wn from circ umstan t i al evidenc e for those draw n by

the trier of

fac t. See Evans, 108 S.W.3d at 236-37; Carruthe rs, 35 S.W.3d at 557.

“Second de g ree murder is [a] knowing killing of anoth er

. ” T en n . Code Ann. § 39-13- 21 0( a )( 1). A pe rs on a tte mpt s to c omm it s e c on d d e g re e mur de r w he n, wi th the int e nt t o c omm it second de g ree murder, that person takes “a substantial step toward the commission of the offe nse.” I d. § 39-12-101( a)( 3).-7-

The e vidence in this case showed that the D efe ndant beat Ms. W ard se vere ly . Twice he choked he r t o the poi nt that she l ost consciousness. As he was choking her, he told her that he w as g oing to kill her. Ms. War d testified that, when she reg ained c onsciousness the sec ond time in her van, she he ard the Def

endant talking to himself about wher e he w ould bury her. H e ex p re s s ed surprise that she was still alive. Furthermore , she testified that, the day befor e t h e at tack, the Def endant se nt her electronic pag es t hat refer red to her death. This evidenc e is sufficie nt to support the Def endant’ s conviction for attempted second de g ree murder.

Next, the Defe ndant cha lleng es his conviction for a g g ravated spousal ra pe. “Ag g ravated spousal ra

pe” is the unlawf

ul sex ual pene tration of one spouse by the oth e r w he re the de fe nd a nt: (A) Knowi n gly

eng ag ed in conduc t that was espe cially crue l, vile and inhumane to the victim during commission of the offe nse; and e ither; (B ) Causes se rious bodily injury to the victim; or (C) I s armed w ith a wea

pon . . . .

I d. § 39-13-507( c)( 1).

Th e De fe nd a nt a

rg ue s tha t hi s c on du c t w a s n e ith e r c ru e l, v ile , o r i nh umane , a ndhe a sse rt s that there is no evidenc e that the victim suff ere d serious bodily

injury or that he e mploy ed a w eapon during the ra

pe. The State conce des that there is no evidence that
, at t h e t i m e of the ra pe, the Def endant wa s armed w ith a wea pon.
First, we disag ree with the Def endant that his conduc t was not “e specia lly crue l, vile and inh umane .” Th e e vid e nc e sh ow e d th a t th e De fe nd a nt g ot o n top of the vic tim a ndc ho ke d h e r u nti l she lost consciousness. When she re g ained consciousness, s he dis cover ed that the Def endant ha d

re mov e d h e r p a nts wh ile sh e wa s u nc on scio us

. Th en he pr oc e e de d to pu ll h e r u p o nto he r kne e s. I n th e pr oc e ss, he thr e a te ne d h e r and hit he r se ve ra l time s in the he a d. Th e De fe nd a nt the n f or c e fu lly eng ag ed in ana l sex with the victim, which resulted in the victim de fec ating on herse lf. Fe ces w as found on the floor

of the house w here the ra pe occ urre d, and a photo gra p h o f such wa s made a n exhibi t at trial. The De fendant then rolled the victim onto her back, g ot on top of her, and choked her a g ain until she lost consciousness. Dr. Smit h testified that the victim’s anus was br uised. The Def endant a rg ues in his bri ef

that his conduct of anally raping the victim cannot be de emed c ruel beca use there was proof

that he and the vi ctim enjoy ed anal sex whil e they wer e mar ried. We ar e not persuade d that the fa ct that they eng ag ed in ana l sex du ri n g t h ei r m ar riag e pre vents the brutal rape of the victim f

rom being char acte rized as “cr uel, vile and inhumane.” The a rg ument is without

me ri t. T he fa c ts i n th is c a se su pp ort a fi nd ing that th e De fe nd a nt tr e a te d the vic tim in an “ e sp e c ia lly

crue l, vile and inhumane” manner

.

Furt hermor e , th e re is ampl e e vid e nc e that th e De fe nd a nt c aus e d th e vic tim se ri ou s b od ily inj ury . “ ‘S e ri ou s b od ily

inj ury ’ m e a ns bo dil y

inj ury wh ic h in vo lve s:T o c o m m it the c rim e o f t h e ft o f p ro p e rty, o n e m u st in te n d to d e p riv e th e o w n e r o f t h e p ro p e rty a n d kn o w ing ly 1

ex er ci s e con t r ol ov er t h e pr oper t y w i t h ou t t h e own er ’ s c on s en t

. Se e T en n

. Code An n

. § 39- 14- 103.

-8- (A) Asubstantial risk of death; (B ) P ro tr a c te d u nc on sc iou sn e ss; (C) Extreme phy sical pain; (D ) P ro tr a c te d o r o bv iou s d isf ig ur e me nt; (E) Protracted loss or substantial impairment of a function of a

bodily member, org an or me ntal fac ulty .”

I d. § 39-11-106( a)( 34). Dr. Smith testified that there was a substantial risk that Ms. Ward could have died during the ra

pe and the beating s. I n fac t, the Def endant himself wa s surprised to lea rn that she had survived the ordea l. Furthermore , Ms. Ward lost consciousness twice during the violent attack. The sec ond time she rema ined unconsc ious long e noug h for the Def endant to strip her naked, load her into the ba ck of he r van, and beg in his trip to Monte ag le. Finally , Ms. Ward testified about the

e xtre me ph y sic a l pain she su ff e re d at th e De fe nd a nt’ s h a nd s. She wa s u na ble to s ho we r f

or day s. She could not wash or br

ush her ha ir. She had trouble urinating

. She testified t hat her “whole body hurt.” The ref

ore, there was a clea

r showing of serious bodilyinjury , and the e vidence is sufficient to support the Def

endant’ s conviction for a g g ravated spousal ra pe.
Next, the De fendant challeng es his conviction for e specia lly ag g ravated kidnapping , which

ou r c ri min a l c od e de fi ne s a s fa lse imp ri so nme nt that is a c c omp a nie d by the us e or dis play of a de a dly

wea pon or wher e the victim suff ers serious bodily injury

. See id. § 39-13-305( a)( 1), (4) . “A pe rson
c omm its fa lse imp ri so nme nt w ho kn ow ing ly re mov es or con fi ne s a no the r u nla wf ull y so a s to interfe re substantially

with the other’s liberty .” I d. § 39-13-302( a). The Def endant doe s not arg ue that he did not commit false imprisonment. Rather, he arg ues that there was insuffic ient evidenc e that the victim suffer ed serious bodily injury or t hat he used or display ed a de adly wea pon. We have pr e vio us ly

de te rm ine d th a t th e re was amp le evi de nc e of se ri ou s b od ily

inj ury . T he rewa s a lso evidenc e that the De fendant display ed a de adly wea pon during the fa lse imprisonment. Ms. W ard testified that, in the van, the D efe ndant had a metal pi pe with hi m that was “a bout two fee t long” and

“ he a vy ,” a ndthe De fe nd a nt th reaten e d to hit he r w ithit. Th e re fo re , th e e vid e nc e is s uf fi c ie nt t o
s u p p o rt t h e D ef

en d an t ’s co n v i ct i o n fo r e s p ec i al l y aggr av at ed k i d n ap p i n g.

The De fendant was als o co n v i cted of ag g ravated robbe ry . Ag g ravated robbe ry is the “intentional or knowing theft of pr operty from the pe rson o f an o t h er by violence or

putting the 1 person in fe ar,” id. § 39-13-401(a ), that is acc ompanied by the us e or display of a de adly

wea pon or wher e the victim “suff

ers se rious bodily

injury .” I d. § 39-13-402( a).

Ms. War d testified that the Def endant took he r work pa g er and eig hty dollars in cash that was in her poc ket. However, the Def endant testified that he mere ly “borr owed” money

from her , and she left the pag er at his house. There fore , he ar g ues that he did not intend to deprive Ms. Ward of her property . Nev er theless, the jury hear d both the Def

endant’ s and Ms. Ward’s explanations, and ob vio us ly dis c re dit e d th e De fe nd a nt’ s te sti mon y that he “ bo rr ow e d” the mon e y a ndint e nd e d to-9-

re turn th e pa g e r. Th is Cou rt ma y no t r e -e va luate thejury ’s c re dib ili ty de te rm inatio ns . Se e Ev a ns , 108 S.W .3d at 236; Bla nd, 958 S.W .2d at 659.

The De fendant also arg ues that ther e i s i n sufficie nt evidencethat he took Ms. Ward’s property by violence or

forc e. Ag ain, the jury obviously cre dited the t estimony of Ms

. Ward that the Def endant se vere ly

beat a nd choked he r to the point of unconsciousness. When she r ecove red, she had bee n stripped of her clothes, and her mone y and pag er w ere g one. Subsequently , the Def endant

a sk e d h e r t o c on ta c t hi m onhe r p a g e r, wh ic h w a s in his po sse ssi on . T his evi den ce is c le arl y sufficie nt to support the jury ’s finding that the Def endant took her

property by violence or

forc e.

Th e De fe nd a nt a g a in a sse rt s th a t th e rewa s n o e vid e nc e of se ri ou s b od ily

inj ury that w ou ld justify a convic tion for ag g ravated robbe ry . As we ha v e al re ad yfound that there was a bundant

e vid e nc e of the se ri ou s bo dil y inj ury inf lic te d on the vic tim by the De fe nd a nt, we ne e d no t agai n addre ss this contention. The evidenc e is sufficie nt to support the ag g ravated robbe ry conviction.

L ast, the De fendant was convic ted of a g g ravated burg lary

. A person commits agg ravated burg lary who, without the consent of the property owner , enter s or re mains conce aled in a ha bitation and either commits, attempts to commit, or intends to commit a felony , theft, or a ssault. See Tenn. Code Ann. §§ 39-14- 402(a) , 39-13-403( a).

Th e De fe nd a nt arg ue s th a t th e ho us e he e nte re d a nd re ma ine d c on c e a le d info r the pu rp os e of a tta c kin g Ms. War d w a s n ot a ha bit a tio n b e c aus e no on e wa s li vin g in the ho us e a t the tim e . T his

arg ume nt i g no re s th e de fi nit ion of “ ha bit a tio n” se t fo rth in ou r c ri min a l c od e , a s w e ll a s o ur su pr e me court’s opinion in State v. L ang ford, 994 S.W.2d 126, 127-28 (Tenn. 1999). A habitation is “any structure

. . . w h ic h is d e s ig n e d o r a d ap te d f

o r th e o v e r n ig h t a c c o mm o d a ti o n o f p e r s o n s

. ” T e n n. Code Ann. § 39-14- 401(1)( A). Clearly a house is “desig ned . . . for the overnight a ccommodation of per sons.” I d. Furthermore , our supre me court s t at ed that, as of 1989, “[t] here is no longe r a require ment that the structure be occ upied.” L ang ford, 994 S.W.2d at 128.

The Def endant also asserts that the State did not prove that he did not have the consent of the

o w n e r o f t h e p r o p e r t y t o b e i n t h e h o u s e

. “ ‘ O w n e r ’ m e a n s a p e r s o n i n l a w f

u l p o s s e s s i o n o f

p r o p e r t y, whether the possession is actual or c onstructive.” T enn. Code Ann. § 39- 14-401(3) . Although she did not own the house, Ms. Ward was still in lawful possession of the prop erty that she re nted, as she wa s still in the proc ess of moving into the new house. Ms. Ward spe cifica lly testified that she did not invit e the De fendant to her house on the eve ning of the attac k. I ndeed, she had an or der of protec tion which should have ope rate d to keep the Def endant away

from her . This evidence , along with all of the circ umstantial evidence in this ca se re g arding how the De fendant savag ely beat a nd rape d Ms. Ward, clea

rly shows that he did not have consent t o enter her house, and the Defe ndant’s arg ument to the contra

ry is meritless. The evide nce is suff icient to support the Def endant’ s
c on vic tio n f

or a g g ra vate d b ur g lary , a s w e ll a s h is o the r fo ur c on vic tio ns

. Th is i ssu e is w ith ou t me ri t.Se e M al l o y v. H o gan, 37 8 U

. S. 1, 6, 84 S. C t

. 14 8 9
, 14 9 2
, 12 L. E d

. 2d 65 3 (19 6 4 ). 2

T h e D ef

en dan t s ee ms t o a r g u e t h at t h e el eme n t of s er i o us bodi l y i n

j u r y a l s o a ppl i es t o h i s c on v i ct i on for 3

a ttem p te d se c o n d d e g re e m u rd e r. W h ile th e inj u rie s inflicte d up o n M s. W a rd w o u ld c e rta inly sa tisf y the e le m e n t o f a “s ub st ant i al s t ep ” t hat is req ui red, see T enn. C o d e A nn. § 3 9

- 1 2

- 1 0 1 (a)( 3 ), seri o us b o d i l y i njury i t sel f i s no t an el em ent of at t emp t ed s econd d egr ee murder

. Fur t her mo r e, at t emp t ed s econd degr ee murder cont ai ns an el ement t hat t he ot her

cr i mes of

w h i ch t h e D ef

en dan t w as c on v i ct ed do n ot : t h e i n t en t t o c ommi t s ec on d de g r ee mu r der

. Se e i d.

W i t h i n h i s a r g u men t of t h i s i s s u e, t h e D ef en dan t pr es en t s a s u b- ar g u men t t h at , u n der St at e v

. An t h on y , 817 4

S. W

. 2d 299 ( T enn

. 199 1), hi s ot her four conv i ct i ons wer e i nci dent al t o t he cr i me of at t emp t ed s econd degr ee murder

a n d , t h e re fo re , sho u ld b e r e v e r s e d . A s the D e fen d a n t fa iled to ra ise this a rg u m e n t i n his m o tio n fo r a ne w trial, it is

w a ive d . S e e T e n n . R . A p p . P . 3 (e ). E v e n if no t wa ive d , t h e issu e ha s n o m e rit.

-10- VIOLATION OF DOUBLE JEO P ARDY Th e De fe nd a nt’ s se c on d a rg ume nt i s th at do ub leje op ard y princ ipl e s p ro hib it h is mult ipl e convictions for c rimes that re quire proof of t h e element of serious bodilyinjury . The prohibition

a g a ins t do ub le je op ard y

e mbo die d intheF if

th A me nd me nt t o th e Un ite d St a te s Co ns titut ionis applicable to the states throug h the Fourteenth Amendme nt and prote cts criminal def endants fr om 2 being “subjec t for the sa me offe nse to be twice put in jeopardy of life or limb.”

I n State v. Bla ck, 524 S .W.2d 913 (Tenn. 1975) , our supre me court adopted the B lockburg er test for de termining when to sustain multiple convicti o n s which ar e base d upon the same a cts or transac tions. S ee Blockbur g er v. United S tates, 284 U.S. 299, 52 S. Ct. 180, 76 L

. Ed. 306 (1932)

. Th e br oa d q ue sti on is w he the r the of fe ns e s at is su e c on sti tut e the sa me of fe ns e un de r the do ub le jeopar dy clause . The c ourt in Blac k held that multiple convictions do not viol ate double je opardy if “the stat u t o ryelements of the two offe nses ar e diffe rent, a nd neither of fense is included in the other.” I d. at 920 (c iting I annelli v. United States, 420 U.S. 770, 95 S. Ct. 1284, 43 L . Ed. 2d 616 (1975)) . The B lockburg er te st require s that “courts ex amine the of fense s to ascertain ‘whe ther e ach [st atutory ] provisi on require s proof of a fact which the other does not.’” I annelli, 420 U.S. at 786 (q uo tin g B loc kb ur g e r, 28 4 U.S. a t 304)

. Ac c or din g to B loc kb ur g e r, “ [a] sing le a c t may be a n o ff e ns e ag ainst two statutes.” 284 U.S. at 304.

I n this case, e ach of

the three crimes that c ontain the eleme nt of serious bodil y i n j u ry of wh ic h th e De fe nd a nt w a s f ou ndg uil ty

re qu ir e s th e pr oo f o f a

fa c t th a t th e oth e rs do no t. Whil e 3
ag g ravated spousal rape require s proof of serious bodily injury
, it a lso r equire s proof o f s ex ual penetr ation. See Tenn. Code Ann. § 39-13-507( c)( 1). Likewise, e specia lly ag g ravated kidnapping

ma y be pr ov e n b y

e vid e nc e of

se ri ou s b od ily

inj ury , but i t a lso re qu ir e s th a t th e de fe nd a nt f a lse ly imp r i s o n t h e v i c t i m

. S e e i d

. § 3 9

- 1 3

- 3 0 5 ( a )

. F i n a l l y , a r o b b e r y i s a g g r a v a t e d w h e r e t h e v i c t im suffe rs serious bodily

injury , see id. § 39-13- 402(a) , but it a l s o re q u i re s a theft. See id. § 39-13- 401(a) . There fore , althoug h serious bodily injury i s an el em en t of ea ch crime, eac h of the c rimes

re qu ir e s p ro of

of a n a dd iti on a l e le me nt that th e oth e rs do no t. Con se qu e ntl y , the fa c t th a t th e State relied upon the sever e beating a nd choking o f the victim to satisfy the serious bodily

injury require ment o f all three crimes, a s well as to obtain the convic tion for attempted se cond deg ree
mur de r, do e s n ot v iol a te do ub le je op ard y pr ote c tio ns . T his iss ue is w ith ou t me ri t. 4-11- EV ID EN CE OF P RI ORBA D A CT S The De fendant’s third issue is w hether the trial court err ed by admitting evide nce of his prior bad ac ts of violating the or der of protec tion that Ms. W ard took out ag ainst him. The Def en d ant faile d to re g ist e r a

c on te mpo rane ou s o bje c tio n to the a dmi ssi on of thi s e vid e nc e , an d h e faile d to

raise the iss ue in his mot ion fo r a ne w tri a l. Th e re fo re , the iss ue is w a ive d. Se e Te nn . R. Ap p. P. 3(e) , 36(a)

.
STATE ’S F AILURE TO PRODU CE EVIDENCE F ou rth, the De fe nd a nt c omp la ins that he wa s pre jud ic e d by the State ’s failu re to p ro du c e his underw ear

and the meta l pipe with which he threatene d the vi ctim. He conte nds that this failure on the pa rt of the State pr e

jud ic e d h im b e c aus e the rewa s a po ssi bil ity

that, upon i ns pe c tio n, thi s
e vid e nc e mig ht h a ve y ie lde d e xcu lpatory e vid e nc e . T he De fe nd a nt w a ive d th is i ssu e by faili ng to include it in his mot ion for a ne w trial. See Te nn. R. App. P. 3(e).

DEP RIVATION OF A F AIR TRIAL Th e De fe nd a nt’ s f

ina l arg ume nt i s th a t th e c umu la tiv e e ff e c t of a ll the tr ia l e rr or s d e nie d h im

a fair tr ia l. H a vin g fo un d n o e rr or s, we c on c lud e that th is i ssu e is w ith ou t me ri t.

Acc ording ly , the judg ments of the trial c ourt areaff irmed.

___________________________________ DAVID H. WELLES, J UDGE