Taylor v. State , 1979 Tenn. Crim. App. LEXIS 255 ( 1979 )

O’BRIEN, Judge,

concurring.

I concur fully with the majority opinion in this case particularly in view of the fact that defendant submitted no argument to support his assignment of error charging the trial judge with error in instructing the jury as to fresh complaint. In that regard the trial judge instructed the jury as follows:

“If complaint is made soon after the alleged act it tends to strengthen the testimony of the prosecutrix. If no complaint is made, or a long time elapses between the alleged act and her complaint, it tends to weaken her testimony.”

In Phillips v. State, (Tenn.Cr.App. 1/24/78), cert. denied, 5/1/78, cited by defendant, complaint was made re the exact same jury instruction. This court stated the law on the subject and, citing authority, went on to say the following in reference to the objected to jury instruction:

“It is the law of this State that evidence of complaint or lack thereof in a case of rape may be considered by the jury in weighing the truth or falsity of a victim's testimony. Conboy v. State, 2 Tenn.Cr. App. 535, 455 S.W.2d 605, (1970).”

There is no authority for the instructions delivered by the trial judge, not among the cases cited by the State, nor, among the numerous cases we have examined in our own research. It would be better for the trial judge to instruct the jury that they may consider the complaint, or lack thereof, in weighing the credibility of a victim rather than specifically stating that it tends to strengthen or tends to weaken the testimony of the witness. The sufficiency of the evidence is not contested and it is plain that the charge delivered did not affect the verdict of the jury, or the results of the trial. I would strongly recommend to trial judges the options included at footnotes 14 and 15 to Tennessee Pattern Jury Instructions, Criminal, (1978), Number 25.01, Rape, in cases of this nature.