State v. Dishman

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
NOVEMBER 1997 SESSION
April 23, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
)
APPELLEE, )
) No. 03-C-01-9610-CR-00361
)
) Sullivan County
v. )
) Frank L. Slaughter, Judge
)
) (Aggravated Rape)
BENJAMIN F. DISHMAN, )
)
APPELLANT. )
FOR THE APPELLANT: FOR THE APPELLEE:
Leslie S. Hale John Knox Walkup
Assistant Public Defender Attorney General & Reporter
P.O. Box 839 425 Fifth Avenue, North
Blountville, TN 37617 Nashville, TN 37243-0497
OF COUNSEL: Peter M. Coughlan
Assistant Attorney General
Stephen M. Wallace 450 James Robertson Parkway
District Public Defender Nashville, TN 37243-0493
P.O. Box 839
Blountville, TN 37617 H. Greeley Wells, Jr.
District Attorney General
P.O. Box 526
Blountville, TN 37617-0526
Teresa K. Murray-Smith
Assistant District Attorney General
P.O. Box 526
Blountville, TN 37617-0526
Barry P. Staubus
Assistant District Attorney General
P.O. Box 526
Blountville, TN 37617-0526
OPINION FILED:___________________________
AFFIRMED
Joe B. Jones, Presiding Judge
OPINION
The appellant, Benjamin F. Dishman (defendant), was convicted of aggravated rape,
a Class A felony, by a jury of his peers. The trial court found the defendant was a multiple
offender and imposed a Range II sentence consisting of confinement for forty (40) years
in the Department of Correction. In this court, the defendant presents six basic issues for
review. He contends (1) the indictment is defective because it fails to allege the mens rea
required to commit aggravated rape, (2) the evidence is insufficient, as a matter of law, to
support his conviction, (3) the trial court erred by not requiring the state to elect the offense
it would prosecute, (4) the trial court erred by refusing to instruct the jury on the defenses
of voluntary intoxication and ignorance or mistake of fact, (5) the trial court erred by
instructing the jury regarding the elements of aggravated rape and lesser included
offenses, and (6) the trial court erred by limiting his cross-examination of the victim. After
a thorough review of the record, the briefs submitted by the parties, and the law governing
the issues presented for review, it is the opinion of this court that the judgment of the trial
court should be affirmed.
The victim was a member of a church ministry which counseled prison inmates.
She met the defendant when he was confined by the Department of Correction. She
visited him in prison, talked to him on the telephone, and wrote to him. When the
defendant was having problems regarding his parole, the victim took steps to assist him.
Subsequently, the defendant was released, and he lived temporarily in the victim’s
residence.
The victim, fifty-one years of age and the mother of a teenager, lived in Bristol,
Tennessee. She planned to attend a Thanksgiving program and dinner at her church on
the evening of November 18, 1995. The defendant called and asked the victim to come
to his residence in Johnson City because he wanted to talk to her. They discussed the
Thanksgiving card the victim had sent to the defendant. However, she refused to meet the
defendant in Johnson City because she wanted to attend the Thanksgiving dinner at the
church.
The defendant, who had a motor vehicle, drove to the victim’s residence. He
2
entered the victim’s residence with a cup filled with an alcoholic beverage. The victim did
not allow anyone to drink alcoholic beverages in her residence. She took the cup and put
it in the kitchen. The victim testified the defendant was not intoxicated while he was inside
her residence.
While the victim was sitting at a table in her kitchen, the defendant grabbed her
throat and pulled her out of the chair. He then grabbed her by the hair. He “steered” the
victim down a hallway leading to her bedroom. When they arrived in the bedroom, the
defendant threw the victim on the bed. He then stated: “You bitch, take your clothes off.”
The victim testified she was terrified. She was afraid of the defendant due to his
mannerisms and the way he was acting. She removed her clothing.
The victim was lying on the bed. The defendant unzipped his pants and got on top
of the victim. He penetrated her vagina with his reproductive organ. Subsequently, he
grabbed the victim by the hair and required her to perform fellatio upon him. Finally, he
made the victim get on her hands and knees and he penetrated the victim’s vagina with his
reproductive organ from behind her.
The defendant turned the victim on her back and straddled her chest. He asked
her: “Bitch, where’s your money?” She did not have any money in her residence. The
defendant struck the victim on her face three or four times with his fist. The defendant
subsequently left the residence.
The victim testified she was “knocked out” after being struck by the defendant. She
felt she was near death. Her eyes were not focusing. She stated that “my eyeballs wanted
to go up in my eyes, in my head.” She sustained bruises and had knots on her head. The
bridges between her teeth were loosened, and she had sores in her mouth. She could not
work for two months. She began having nightmares following the events in question. A
doctor testified the victim had “[t]ears or injuries that are readily apparent to the naked eye”
at the opening of the vagina. The doctor also found an irritation or inflammation of the
tissues inside her vagina. He opined this was consistent with recent sexual activity.
A police officer observed the defendant walking along the shoulder of a roadway in
Kingsport. The defendant was staggering into a lane of traffic. The officer stopped and
talked to the defendant. According to the officer, the defendant told him he had been to
3
see his girlfriend in Bristol, and was going to Johnson City. While it was quite cold outside,
the defendant was not wearing a coat. He had an odor of an intoxicating beverage on his
breath. The defendant admitted he had consumed four drinks of an alcoholic beverage
at a friend’s house in Bristol. He had been walking three and one-half hours. The officer
arrested the defendant for public drunkenness and transported him to the Kingsport City
Jail.
While at the jail, the officer observed the defendant had a scratch under his right eye
and a scratch on his hand in the area of his knuckles. When the defendant’s shoes were
removed, there were several long hairs “stringing” from his socks and shoes.
I.
The defendant contends the indictment in this case is fatally defective because it
fails to allege the mens rea, an essential element of aggravated rape. He argues this
defect had the effect of “depriving the trial court of jurisdiction and rendering the appellant’s
conviction void.” The defendant predicates his argument upon this court’s opinion in State
v. Roger Dale Hill, Sr.,Wayne County No. 01-C-01-9508-CC-00267, 1996 WL 346941(Tenn. Crim. App., Nashville, June 20, 1996), and other opinions of this court. The State
of Tennessee contends the indictment is valid.
The indictment charges the offense of aggravated rape. It alleges the defendant “on
or about November 18, 1995 in the State and County aforesaid and before the finding of
this Indictment did unlawfully, feloniously, and by force sexually penetrate [the victim] and
did cause [the victim] bodily injury by striking her about the head and face. . . .”
The supreme court resolved this issue in State v. Hill, 954 S.W.2d 725 (Tenn. 1997).
The court said in ruling:
We hold that for offenses which neither expressly require nor
plainly dispense with the requirement for a culpable mental
state, an indictment which fails to allege such mental state will
be sufficient to support prosecution and conviction for that
offense so long as:
(1) the language of the indictment is sufficient to meet the
constitutional requirement of notice to the accused of the
charge against which the accused must defend, adequate
basis for entry of a proper judgment, and protection from
4
double jeopardy;
(2) the form of the indictment meets the requirements of Tenn.
Code Ann. § 40-13-202; and
(3) the mental state can be logically inferred from the conduct
alleged.
954 S.W.2d at 726-27.
The indictment in this case, like the indictment for aggravated rape in Hill, meets the
aforementioned criteria. A defendant who sexually penetrates a victim by force and inflicts
bodily injury to the victim must necessarily act intentionally, knowingly, or recklessly. Hill,
954 S.W.2d at 729
This issue is without merit.
II.
The defendant contends the evidence is insufficient, as a matter of law, to support
his conviction for aggravated rape. He argues (a) the State of Tennessee failed to prove
“bodily injury was inflicted to accomplish the [requisite] rape,” and (b) he did not possess
the required mens rea to commit the offense.
A.
When an accused challenges the sufficiency of the convicting evidence, this court
must review the record to determine if the evidence adduced at trial is sufficient "to support
the finding by the trier of fact of guilt beyond a reasonable doubt." Tenn. R. App. P. 13(e).
This rule is applicable to findings of guilt based upon direct evidence, circumstantial
evidence, or a combination of direct and circumstantial evidence. State v. Dykes, 803
S.W.2d 250, 253 (Tenn. Crim. App.), per. app. denied (Tenn. 1990).
In determining the sufficiency of the convicting evidence, this court does not reweigh
or reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App.),
per. app. denied (Tenn. 1990). Nor may this court substitute its inferences for those drawn
by the trier of fact from circumstantial evidence. Liakas v. State, 199 Tenn. 298, 305, 286
5
S.W.2d 856, 859, cert. denied, 352 U.S. 845, 77 S.Ct. 39, 1 L.Ed.2d 49 (1956). To the
contrary, this court is required to afford the State of Tennessee the strongest legitimate
view of the evidence contained in the record as well as all reasonable and legitimate
inferences which may be drawn from the evidence. State v. Cabbage, 571 S.W.2d 832,
835 (Tenn. 1978).
Questions concerning the credibility of the witnesses, the weight and value to be
given the evidence, as well as all factual issues raised by the evidence are resolved by the
trier of fact, not this court. Cabbage, 571 S.W.2d at 835. In State v. Grace, 493 S.W.2d
474, 476 (Tenn. 1973), our supreme court said: "A guilty verdict by the jury, approved by
the trial judge, accredits the testimony of the witnesses for the State and resolves all
conflicts in favor of the theory of the State."
Since a verdict of guilt removes the presumption of innocence and replaces it with
a presumption of guilt, the accused, as the appellant, has the burden in this court of
illustrating why the evidence is insufficient to support the verdicts returned by the trier of
fact. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). This court will not disturb a
verdict of guilt due to the sufficiency of the evidence unless the facts contained in the
record are insufficient, as a matter of law, for a rational trier of fact to find that the accused
is guilty beyond a reasonable doubt. Tuggle, 639 S.W.2d at 914.
B.
In the context of this case, the State of Tennessee was required to prove the
following elements to establish the offense of aggravated rape beyond a reasonable doubt:
(a) the defendant unlawfully sexually penetrated the victim and (b) the defendant caused
bodily injury to the victim. Tenn. Code Ann. § 39-13-502(a)(2). The State of Tennessee
proved these elements of aggravated rape beyond a reasonable doubt. Tenn. R. App. P.
13(e); Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1970).
The defendant cites State v. Smith, 891 S.W.2d 922, 928 (Tenn. Crim. App.), per.
app. denied (Tenn. 1994) and State v. Jackson, 670 S.W.2d 634 (Tenn. Crim. App.), per.
app. denied (Tenn. 1984), to support his theory that the infliction of bodily injury is only an
6
element of the offense of aggravated rape when the infliction of bodily injury precedes or
accompanies the penetration. The defendant’s reliance on these cases is misplaced.
Neither case addresses the theory he advances in this case. Nor does the statute support
this theory.
The statute uses the term “accompanied.” It does not state when the “bodily injury”
must be inflicted. In other words, the statute does not state the “bodily injury” must be
inflicted to accomplish the act of penetration. Thus, this court must construe the statute
to determine the intent of the legislature when enacting this statute.
(1)
The polestar of statutory construction is the intent of the legislature when enacting
a statute. Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995). Thus, a court’s role in the
interpretation of a statute is to “ascertain and give effect to the legislative intent without
unduly restricting or expanding a statute’s coverage beyond its intended scope.” Owens,
908 S.W.2d at 926; see Hicks v. State, 945 S.W.2d 706, 707 (Tenn. 1997); State v. Davis,
940 S.W.2d 558, 561 (Tenn. 1997); State v. Sliger, 846 S.W.2d 262, 263 (Tenn. 1995).
The common law rules of construction developed through the years are aids which assist
a court in making this determination. Roberson v. University of Tennessee, 912 S.W.2d
746, 747 (Tenn. Ct. App.), per. app. denied (Tenn. 1995).
The intent of the legislature is to be derived from the face of the statute if the
verbiage contained within the four corners of the statute is plain, clear, and unambiguous.
Austin v. Memphis Publ’g. Co., 655 S.W.2d 146, 149 (Tenn. 1983). In other words,
“[u]nambiguous statutes must be construed to mean what they say.” Roberson, 912
S.W.2d at 747.
(2)
This court is of the opinion the language used by the General Assembly in
proscribing the offense of aggravated rape is clear and unambiguous. The intent of the
General Assembly can readily be determined by a reading of the statute.
7
The statute in question, Tenn. Code Ann. § 39-13-502, provides in part:
(a) Aggravated rape is unlawful sexual penetration of a victim
by the defendant or the defendant by a victim accompanied by
any of the following circumstances:
(1) Force or coercion is used to accomplish the act and the
defendant is armed with a weapon or any article used or
fashioned in a manner to lead the victim reasonably to believe
it to be a weapon;
(2) The defendant causes bodily injury to the victim; . . .
(Emphasis added).
As can be seen from a reading of this statute, the Tennessee General Assembly
made a clear distinction between Tenn. Code Ann. § 39-13-502(a)(1) and (a)(2). Section
39-13-502(a)(1) requires the use of force or coercion to be asserted in order to “accomplish
the act” of sexual penetration before the crime of rape can be elevated to aggravated rape.
Section 39-13-502(a)(2) does not provide that the bodily injury must be inflicted to
“accomplish the act” of sexual penetration.
It was the intent of the General Assembly to place a restraint upon the infliction of
injury to a rape victim to protect the victim. The restraint is in the form of an elevation of
the crime of rape to aggravated rape if the perpetrator inflicts “bodily injury” as this phrase
is defined by statute. If the General Assembly had intended to limit the application of this
section to bodily injury inflicted before or during the sexual penetration, the General
Assembly would have inserted the same phrase it inserted in § 39-13-502(a)(1), namely,
to “accomplish the act” of sexual penetration.
(3)
This court decided this very issue in State v. Locke, 771 S.W.2d 132, 136 (Tenn.
Crim. App. 1988), per. app. denied (Tenn. 1989). In Locke the defendant was able to enter
the victim’s second story apartment during the early morning hours without awakening the
victim. He penetrated the victim on two or three occasions. The victim subsequently hit
Locke, and he left through a door. When the victim went to a window, she saw Locke and
began screaming loudly. Locke threw a full beer can at the window. He then charged the
window and attempted to open it. The victim ran into her bedroom, slipped into a pair of
8
jeans and a top, exited through a window onto the roof, and jumped to the ground. As a
result, she suffered severe debilitating injuries to her spine and large toe. The defendant
vigorously contended the State of Tennessee failed to establish he caused personal
injuries to the victim within the meaning of the statute. He argued the “personal injuries”
must be caused or inflicted for the purpose of making the victim submit to the unlawful
penetration or while the accused sexually penetrated the victim. This court ruled the
injuries sustained by the victim when she jumped from the roof were properly used to
elevate the rape to aggravated rape. In ruling, this court said:
Whether the serious, debilitating injuries sustained by the
victim to her spine and large toe can be said to have
“accompanied” the unlawful sexual penetration of the victim is
a question of considerable complexity. This issue turns upon
the meaning of the term “accompanied” as used in . . . the
applicable statute . . . .
The word “accompany” encompasses acts or circumstances
which occur before, during and after the consummation of the
unlawful sexual penetration. In Balentine’s Law Dictionary (3d
ed. 1979), it is said the word “accompany,” as used in a
statute, does not necessarily mean “simultaneous,” but may
mean “in relation to, connected with,” or “to follow.” See
Tucker v. Kerner, 186 F.2d 79, 82 (7th Cir. 1950). Black’s Law
Dictionary (5th ed. 1979), referring to Webster’s Dictionary,
defines the word “accompany” as “[t]o occur in association
with.” See United States v. Lee, 131 F.2d 464 (7th Cir. 1942).
771 S.W.2d at 136.
In this case, the defendant penetrated the victim three times in rapid succession,
and, immediately after the third penetration, commenced to beat her unmercifully. It was
clearly the intent of the General Assembly to elevate the offense of rape to aggravated
rape based upon the facts of this case. The bodily injury “accompanied” the rape. The
bodily injury was not, as the defendant urges, required to be inflicted before or during the
sexual penetration.
This issue is without merit.
III.
The defendant contends the trial court committed error of prejudicial dimensions by
refusing to require the State of Tennessee to elect which penetration it would prosecute.
9
The defendant argues he was charged with one count of aggravated rape, but the state
established three separate penetrations of the victim. The State of Tennessee contends
it was not required to make an election in this case. The state argues all three acts of
penetration occurred in succession at the same exact location, and, therefore, constituted
but a single act of aggravated rape.
As a general rule, the trial court is required to make the State of Tennessee elect
the offense it will prosecute when the defendant is charged with one count of aggravated
rape and the evidence establishes two or more acts which could constitute aggravated
rape. State v. Shelton, 851 S.W.2d 134, 137 (Tenn. 1993); Burlison, 501 S.W.2d 801, 804
(Tenn. 1973); State v. Clabo, 905 S.W.2d 197, 204 (Tenn. Crim. App.), per. app. denied
(Tenn. 1995); State v. Hallock, 875 S.W.2d 285, 292-93 (Tenn. Crim. App. 1993), per. app.
denied (Tenn. 1994); State v. Brown, 823 S.W.2d 576, 583 (Tenn. Crim. App. 1991). The
purpose of the election is to ensure the jury’s verdict is unanimous for the same criminal
act. If this rule did not exist, the jurors could vote to convict the defendant, but their verdict
might not be unanimous for the same criminal conduct. Individual jurors could vote to
convict the defendant based upon separate and distinct acts of criminal conduct.
In this case, there were three separate acts of penetration. The victim testified the
defendant vaginally penetrated her while she lay in the bed on her back. When the
defendant lost his erection, he forced the victim to perform fellatio upon him until his
reproductive organ was erect. He then forced the victim to get on her hands and knees.
He again vaginally penetrated her from behind her. The record establishes these three
acts of penetration occurred in rapid succession. Only seconds separated the three
penetrations. Thus, the record supports the conviction of only one aggravated rape
conviction.
In State v. Dan Anderson, Sullivan County No. 929, 1991 WL 42427 (Tenn. Crim.
App., Knoxville, April 1, 1991), Anderson was charged and convicted of one count of
aggravated rape. The evidence established Anderson forced the victim to have both
vaginal and anal intercourse, and perform fellatio upon him. Later, Anderson filed a post-
conviction action. Dan Anderson v. State, Sullivan County No. 03-C-01-9409-CR-00332,
1995 WL 676395 (Tenn. Crim. App., Knoxville, November 15, 1995). In the post-
10
conviction action, Anderson contended in part that trial counsel was ineffective because
counsel failed to require the State of Tennessee to elect which penetration it would
prosecute and seek a conviction. This court held counsel was not ineffective because the
evidence would only support one conviction. In ruling, this court said:
In the case sub judice the appellant was charged in a single
count with one offense of aggravated rape. The record before
us supports the commission of but one offense. Indeed, at the
post-conviction hearing, during opening remarks by appellant’s
counsel, the trial judge stated: “It’s all essentially one
transaction . . . It’s not a situation where he could have been
convicted of three separate offenses of aggravated rape at that
point. It was all essentially one occurrence.” At the conclusion
of the hearing, the judge again observed that the three
instances of penetration in this case were “all part of the same
general transaction.” Thus, a non-unanimous jury verdict
based upon unindicted conduct was not possible.
****
[T]he record supports a conclusion that the penetrations
occurred during a single episode of intercourse and were
motivated by a single basic intent. Thus, the risk of a non-
unanimous jury verdict did not exist, and we cannot conclude
that trial counsel’s failure to require an election of offenses was
deficient representation.
Slip op. at 6-7.
In State v. James Monroe Bost, Davidson County No. 01-C-01-9112-CR-00373,
1992 WL 213374 (Tenn. Crim. App., Nashville, September 3, 1992), Bost was convicted
of aggravated rape, aggravated sexual battery, especially aggravated robbery, and
aggravated robbery. The evidence established the defendant raped the victim after he had
committed the burglary and robbed the victim. He subsequently raised the victim’s
nightshirt and fondled her breasts. On appeal, Bost contended he could not be convicted
of both aggravated rape and aggravated sexual battery because “the lifting of the victim’s
nightshirt and fondling her breasts ‘arose out of the same transaction’ as the vaginal
penetration, and therefore demonstrated the same criminal intent.” This court, finding the
evidence did not support convictions for both aggravated rape and aggravated sexual
battery, said:
We must agree with the appellant’s reasoning. The facts in
this record do not support separate convictions. The fondling
occurred concomitantly with the vaginal rape, and the evidence
here shows it to have been part and parcel of the bestial act.
11
. . . Accordingly, the conviction for aggravated sexual battery
is reversed and dismissed. However, as the evidence amply
supports the aggravated rape conviction, there is no need to
order a remand for a new trial on that count.
Slip op. at 3-4. See State v. Locke, supra.
In this case, the three penetrations occurred in the same bedroom, were part of one
continuous course of conduct, and they occurred in rapid succession. Consequently, the
evidence in this case would only support one conviction. In short, the trial court did not
abuse its discretion by refusing to require the State of Tennessee to elect the offense it
would prosecute and seek a conviction.
This issue is without merit.
IV.
The defendant next contends the trial court erred in failing to instruct the jury on the
general defenses of voluntary intoxication and mistake of fact. The defendant concedes
he did not request general defense instructions at trial. The issue was not raised until the
motion for new trial. Since intoxication and mistake of fact are general defenses that do
not require notice to the state, the defendant argues the trial court’s failure to instruct the
jury on defenses fairly raised by the proof constituted fundamental error.1
1
The cases cited by the defendant do not support the proposition that the trial court’s
failure to instruct on voluntary intoxication constituted fundamental error. In fact, State v.
Norris, 874 S.W.2d 590, 600 (Tenn. Crim. App.), per. app. denied (Tenn. 1993), cited by
the defendant, reaches the opposite result. Id. In Norris, this court concluded it was not
plain error for a trial court to omit an instruction if the defendant failed to object or make a
special request for the instruction. Id. State v. Thompson, 519 S.W.2d 789, 792 (Tenn.
1975), also cited by the defendant, is not relevant to the present case. In Thompson, the
supreme court concluded the failure of a trial court to instruct on the law of circumstantial
evidence constituted fundamental error when all the evidence presented was
circumstantial. The court also stated the failure to instruct on circumstantial evidence did
not constitute reversible error if both direct and circumstantial evidence were presented at
trial. Id. Even by analogy, this holding does not support the proposition that the trial court
committed fundamental error; voluntary intoxication was merely one of many theories
asserted by the defendant.
12
A.
It is the duty of the trial court, without request, to instruct the jury on the rules of law
governing every issue raised by the evidence. See Poe v. State, 212 Tenn. 413, 416, 370
S.W.2d 488, 489 (1963); State v. Locke, 771 S.W.2d 132, 138-39 (Tenn. Crim. App. 1988),
per. app. denied (Tenn. 1989). An accused’s right to a full exposition of the law applicable
to the facts extends to the accused’s theory of defense. Poe, 212 Tenn. at 414-20, 370
S.W.2d at 491; Davis v. State, 64 Tenn. 612 (1875). However, before an accused is
entitled to an instruction on a theory of defense, the defense must be “fairly raised” by the
evidence adduced at trial. Poe, 212 Tenn. at 416, 370 S.W.2d at 489. See State v.
Hardin, 691 S.W.2d 578, 581 (Tenn. Crim. App. 1985) (alibi defense not fairly raised by
the evidence); State v. Mathias, 687 S.W.2d 296, 298 (Tenn. Crim. App.), per. app. denied
(Tenn. 1985) (entrapment defense not fairly raised by the evidence); State v. Chambless,
682 S.W.2d 227, 231-32 (Tenn. Crim. App.), per. app. denied (Tenn. 1984) (temporary
insanity defense not fairly raised by the evidence); Harrell v. State, 593 S.W.2d 664, 672
(Tenn. Crim. App. 1979), per. app. denied (Tenn. 1980) (voluntary intoxication not fairly
raised by the evidence). The question which this court must resolve is whether the
evidence contained in the record “fairly raises” the defenses of voluntary intoxication and
mistake of fact.
B.
The defendant contends he did not possess the mens rea to commit the offense of
aggravated rape because he was highly intoxicated at the time he penetrated the victim.
In support of this argument, the defendant points to the fact he was drinking an alcoholic
beverage when he entered the victim’s residence. He also points to the testimony of
Officer Sean Chambers of the Kingsport Police Department who arrested the defendant
for public drunkenness approximately three and one-half hours after he left the victim’s
residence. The victim testified the defendant brought an alcoholic beverage into her
residence and she took the beverage away from him. She did not allow anyone to drink
alcoholic beverages in her residence. However, she testified the defendant was not
13
intoxicated while he was in her residence.
Whether or not the defense of intoxication is available to this defendant depends
on whether the defendant was intoxicated at the time he committed the rape. The only
evidence in the record regarding whether the defendant was intoxicated at the time of the
rape was the testimony of the victim that the defendant arrived at her home with a drink in
his hand, but that he was not intoxicated. The defense of intoxication was not fairly raised
by the proof.
The record reflects the defendant was able to converse with the victim on the
telephone without difficulty before visiting her home. He was apparently coherent. The
defendant drove to the victim’s home. The victim did not describe any act or conduct which
led her to believe the defendant was intoxicated or which supports the defendant’s
argument that he did not possess the requisite mens rea to commit the offense of
aggravated rape. The victim knew the defendant well, and had seen him both sober and
intoxicated on prior occasions. There is no evidence in the record to contradict the victim’s
assertion that the defendant was not intoxicated at the time the rape took place.
Although a police officer testified the defendant appeared intoxicated when he
observed the defendant on the side of a road in Kingsport, the officer did not encounter the
defendant until three and one-half hours after the commission of the rape. The defendant
could have consumed additional alcoholic beverages between the time he left the victim’s
residence and the time he was arrested in Kingsport.
This issue has no merit.
C.
The defendant also contends the evidence establishes the victim gave the
defendant the impression she wanted to be intimate with him, and he believed the victim
was consenting to the sexual activities that took place on the date in question. He
therefore argues he was acting upon a mistake of fact. Tenn. Code Ann. § 39-11-502.
The defense of mistake of fact was not fairly raised by the evidence. The victim was
fifty-one years of age; the defendant was thirty-one years of age. While the victim said she
loved the defendant as if he was her child, she did not want to be intimate with him. Nor
14
did she want him to be a lover. Her only motivation in assisting the defendant was to give
him a second chance after his release from the Department of Correction. She provided
him with a place to live for a few days following his release. She fed him. She helped him
obtain forms of identification. She provided him with money to visit his family. Moreover,
the defendant was married when this occurred. There is no evidence in the record
establishing the defendant and the victim had anything more than a platonic friendship.
On November 18, 1995, the defendant grabbed the victim by her throat and pulled
her out of her chair. He grabbed her by the hair and “steered” her down a hallway to her
bedroom. He stated: “You bitch, take your clothes off.” The defendant penetrated the
victim’s vagina, grabbed the victim by the hair and forced her to perform fellatio on him.
He then made the victim get on her hands and knees so he could penetrate her from
behind. The defendant then proceeded to straddle the victim’s chest and struck her three
to four times in the face. The defendant did not testify. Thus, there is no credible view of
the evidence which supports a mistake of fact defense; furthermore, the defendant failed
to request a mistake of fact instruction. The trial court did not err by failing to instruct the
jury on mistake of fact. State v. McPherson, 882 S.W.2d 365 (Tenn. Crim. App.), per.
app. denied (Tenn. 1994).
The defendant cites Jones v. State, 889 S.W.2d 225 (Tenn.), per. app. denied
(Tenn. 1994), for the proposition that mistake of fact was a viable defense to the charge
of aggravated rape in the present case. In Jones, there was sufficient evidence in the
record to support a finding that the defendant had been mistaken regarding the victim’s
age. The victim’s age was not an aggravating factor in the present case; further, there was
no credible view of the evidence which supported the application of a mistake of fact
defense.
This issue has no merit.
V.
The defendant argues that the trial court erred in instructing the jury regarding the
elements of aggravated rape and lesser included offenses. The defendant argues the trial
15
court committed reversible error by instructing the jury it needed to find the defendant used
force or coercion and caused bodily injury to the victim before convicting him of aggravated
rape. The defendant also argues the trial court erred by failing to include the mens rea for
sexual battery in the jury charge and by failing to instruct the jury on the lesser included
offense of aggravated sexual battery.
A.
In criminal cases it is the duty and obligation of a trial judge, without request, to
instruct the jury as to the law applicable to the evidence as well as any issue which the jury
must ultimately decide. Poe v. State, 212 Tenn 413, 416, 370 S.W.2d 488, 489 (1963).
See State v. Harbison, 704 S.W.2d 314, 319 (Tenn.), cert. denied, 476 U.S. 1153, 106
S.Ct. 2261, 90 L.Ed.2d 705 (1986); State v. Thompson, 519 S.W.2d 789, 792 (Tenn.
1975); State v. Elliot, 703 S.W.2d 171, 179 (Tenn. Crim. App.), per. app. denied (Tenn.
1985). The trial judge is said to be “the proper source” from which the jury is to receive the
law, and serves as a witness to the law applicable to the case. State ex rel. Myers v.
Brown, 209 Tenn. 141, 148-49, 351 S.W.2d 385, 388 (1961); Ford v. State, 101 Tenn.
454, 458, 47 S.W. 703, 705 (1898).
Once the trial court has charged the jury on the law governing the case, it is the duty
of the jury to apply the law, as charged, to the facts introduced into evidence. Ford v.
State, supra. As our supreme court said in Ford:
It is the duty of the jury to apply it, under the direction of the
Court, so far as he has directed, to the facts in evidence. They
must treat it as applicable to the facts, and apply it as they
determine the facts to be. The Court is a witness to them what
the law is, and the jury should adjudge it to be as given them
....
101 Tenn. 458, 47 S.W. at 705.
This court must now determine whether the instructions given by the trial court
resulted in reversible error.
B.
The instruction the trial court gave the jury on the charge of aggravated rape was:
16
For you to find the defendant guilty of this crime [aggravated
rape], the State must have proven beyond a reasonable doubt
the existence of the following elements:
(1) that the defendant had unlawful sexual penetration of the
alleged victim or the alleged victim had unlawful
penetration of the defendant; and
(2) that force or coercion was used to accomplish the act; and
(3) that the defendant caused bodily injury to the alleged
victim: (sic) and
(4) that the defendant acted either intentionally or knowingly.
The Tennessee Code defines aggravated rape as:
[U]nlawful sexual penetration of a victim by the defendant or
the defendant by a victim accompanied by any of the following
circumstances:
(1) Force or coercion is used to accomplish the act and the
defendant is armed with a weapon or any article used or
fashioned in a manner to lead the victim reasonably to
believe it to be a weapon;
(2) The defendant causes bodily injury to the victim;
(3) The defendant is aided or abetted by one (1) or more
other persons; and
(A) Force or coercion is used to accomplish the
act; or
(B) The defendant knows or has reason to know that
the victim is mentally defective, mentally
incapacitated or physically helpless;
(4) The victim is less than thirteen (13) years of age.
Tenn. Code Ann. § 39-13-502(a).
The instruction given to the jury by the trial court required the State of Tennessee
to prove additional elements beyond a reasonable doubt before obtaining a conviction for
aggravated rape. Since the instruction given by the trial court had the effect of increasing
the burden on the state, no prejudice inured to the defendant. Therefore, any error
committed by the trial court constituted harmless error. Tenn. R. App. 36(b) and Tenn.
Crim. App. 52(a).
C.
In instructing the jury on the charge of sexual battery, the trial court stated the State
17
of Tennessee was required to prove:
(1) the defendant had unlawful sexual conduct with the
alleged victim or the alleged victim had unlawful sexual
contact with the defendant; and
(2) that force or coercion were [sic] used to accomplish the
act.
The court defined “sexual contact” as including “the intentional touching of the
alleged victim’s, defendant’s or any other person’s intimate parts, or the intentional
touching of the clothing covering the immediate area of the alleged victim’s -- immediate
area of the allege [sic] victim’s, the defendant’s, or any other person’s intimate parts, if the
intentional touching can be reasonably construed as being for the purpose of sexual
arousal or gratification.” The court went on to define “‘intentional’ conduct” or “‘intentional’
result” as an event that occurs “when the defendant wants to do the act or achieve the
result. It is his or her conscientious objective or desire to engage in the conduct or cause
the result.”
Sexual battery is defined in the Tennessee Code as “unlawful sexual contact with
a victim by the defendant or the defendant by a victim” accompanied by "force or coercion.”
Tenn. Code Ann. § 39-13-505. The statute proscribing the offense of sexual battery does
not contain a culpable mental state.
Tennessee Code Annotated § 39-11-301(b) requires a culpable mental state unless
the definition of the offense dispenses with a mental element. However, the statute also
states “[i]f the definition of an offense within this title does not plainly dispense with a
mental element, intent, knowledge or recklessness suffices to establish the culpable
mental state.”
In this case, the trial court defined the phrase “sexual contact,” and stated the
“sexual contact” requires the touching to be “intentional.” Thus, the culpable mental state
is contained in the jury instructions.
The defendant also contends the failure of the trial court to cross-reference the
definition of “unlawful” from the jury instruction given for aggravated rape when instructing
the jury on sexual battery could have confused the jury. The defendant cites State v.
Cravens, 764 S.W.2d 754, 756 (Tenn. 1989), as authority for this proposition. However,
in Cravens the supreme court noted:
18
In our opinion, all of the elements of each offense should be
described and defined in connection with that offense,
although in Martin we did suggest that there could be cross-
referencing or repetition in connection with the lesser offenses
since jury instructions in felony cases are required by statute
in this state to be written and physically delivered to the jurors
for use in their deliberations.
764 S.W.2d at 756.
It was not necessary to redefine the term “unlawful” because it is a word “in common
use and can be understood by people of ordinary intelligence, [therefore] it is not
necessary, in the absence of anything in the charge to obscure their meaning, for the court
to define or explain the terms.” State v. Raines, 882 S.W.2d 376, 383 (Tenn. Crim. App.),
per. app. denied (Tenn. 1994); State v. Braden, 867 S.W.2d 750, 761 (Tenn. Crim. App.),
per. app. denied (Tenn. 1993). Further, it is generally harmless error where the court
simply fails to repeat a definition already given. State v. Nichols, 877 S.W.2d 722, 735
(Tenn. 1994), cert. denied, 513 U.S. 1114, 115 S.Ct. 909, 130 L.Ed.2d 791 (1995); State
v. Wright, 756 S.W.2d 669, 675 (Tenn. 1988); State v. Laney, 654 S.W.2d 383, 388-89
(Tenn. 1983). Taken as a whole, it is clear the charge adequately defined the crime of
sexual battery.
This issue has no merit.
D.
The defendant next contends the trial court committed error of prejudicial
dimensions by failing to charge the jury on aggravated sexual battery, a Class B felony.
Tenn. Code Ann. § 39-13-504. This court disagrees.
While aggravated sexual battery is a lesser included offense of aggravated rape,
State v. Banes, 874 S.W.2d 73, 79-80 (Tenn. Crim. App. 1993), per. app. denied (Tenn.
1994); State v. Edward Eugene Clark, Hamilton County No. 1066, 1988 WL 90448 (Tenn.
Crim. App., Knoxville, Sept. 1, 1988), the defendant was not entitled to an instruction on
this lesser included offense based upon the evidence. As this court stated in State v.
Wright, 649 S.W.2d 22, 24 (Tenn. Crim. App.), per. app. denied (Tenn. 1983): “The proof
clearly makes out the offense for which the defendant was convicted, and there was no
19
credible view of the evidence under which the defendant could have been found guilty of
a lesser offense.” (emphasis added). But see Johnson v. State, 531 S.W.2d 558, 559
(Tenn. 1975); State v. Atkins, 681 S.W.2d 571, 577 (Tenn. Crim. App. 1984), cert. denied,
470 U.S. 1028, 105 S.Ct. 1395, 84 L.Ed.2d 784 (1985); State v. Roy L. Sherrod, Shelby
County No. 02-C-01-9510-CR-00331, 1996 WL 417661 (Tenn. Crim. App., Jackson, July
26, 1996), per. app. denied (Tenn. 1997).
In Good v. State, 69 Tenn. 293 (1878), the supreme court explained an exception
to the statute requiring instructions on lesser included offenses and lesser grades of
offenses:
This is a wise statute made for the protection of the accused
in all cases in which the facts may demand its application. Its
purpose is to secure to the defendant the benefit of all the law
applicable to the facts of his case, without any request on his
part. It was not intended, however, to call from the court a
charge upon hypothetical questions not suggested by proof.
When it is clear that the grade of offense charged is proved, .
. . to charge the law pertaining to such lesser grades would
simply tend to confuse and mislead the jury, and often result
in verdicts inadequate to the crime actually committed . . . .
When the offense charged is beyond controversy made out
and is complete, it is the duty of the court to confine its charge
to such case . . . [so] that the jury may be enabled to decide
intelligently the single question presented and not be mystified
by abstractions.
Good, 69 Tenn. at 294-95.
In the present case there is no evidence in the record disputing sexual penetration
of the victim occurred. Therefore, no jury charge on sexual battery or aggravated sexual
battery was warranted.
The victim was the only person who gave testimony regarding the rape. The victim
stated the defendant penetrated her three times in three different positions. The defendant
refused to testify. No other evidence was introduced which disputed the victim’s depiction
of the events on November 18, 1995. Since no evidence was introduced disputing sexual
penetration, the jury had to either believe the victim’s version of the events or discredit her
view entirely. The defendant would be guilty of aggravated rape, rape, or no offense. See
State v. Larry Fields, Fayette County No. 11, 1991 WL 35747 (Tenn. Crim. App., Jackson,
Mar. 20, 1991), per. app. denied (Tenn. July 1, 1991); State v. David H. Owen, Knox
20
County No. 1209, 1989 WL 54805 (Tenn. Crim. App., Knoxville, May 26, 1989), per. app.
denied (Tenn. October 1, 1989). Therefore, the trial court’s failure to charge the jury on
the offense of aggravated sexual battery was not error and the charge given on sexual
battery was superfluous.
The issue is without merit.
VI.
The defendant contends the trial court improperly excluded evidence pursuant to
Tennessee’s rape shield provision, Rule 412 of the Tennessee Rules of Evidence. The
defendant argues the trial court erred by ruling that the proffered testimony of three
witnesses was inadmissable to show the victim’s consent to the sexual actions in question.
The defendant predicates this argument upon the alleged prior sexual conduct between
the victim and the defendant. The defendant also argues this testimony was admissible
to impeach the victim, either as prior inconsistent statements or as statements
demonstrating bias or prejudice since the victim denied prior sexual conduct with the
defendant. Tenn. R. Evid. 613, 616. The defendant alleges the trial court’s limitations
upon cross-examination and impeachment of the victim in this regard deprived the
defendant of his right to confrontation and right to a fair trial.
A.
The Tennessee Rape Shield Law, Rule 412 of the Tennessee Rules of Evidence,
governs the procedure to be followed when determining the relevance of a victim’s prior
sexual behavior when the defendant is accused of aggravated rape, aggravated sexual
battery, sexual battery, spousal sexual offenses, or the attempt to commit any such
offense. Tenn. R. Evid. 412. The policy underlying the rule is the striking of “a balance
between the paramount interests of the accused in a fair trial and the important interests
of the sexual assault victim in avoiding an unnecessary, degrading, and embarrassing
invasion of sexual privacy.” Advisory Commission Comments to Tenn. R. Evid 412. The
21
portion of the rule relevant to the present case states:
Evidence of specific instances of a victim’s sexual behavior is
inadmissible unless admitted in accordance with the
procedures in subdivision (d) of this rule, and the evidence is:
(3) If the sexual behavior was with the accused, on the issue
of consent . . . .
Tenn. R. Evid. 412(c)(3). Subdivision (d) of the rule provides the defendant must file a
written motion to offer evidence no later than ten days before trial, except:
the court may allow the motion to be made at a later date,
including during trial, if the court determines either that the
evidence 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.
Tenn. R. Evid. 412(d)(1)(i). The motion must be accompanied by a written offer of proof.
Tenn. R. Evid. 412 (d)(1)(iii). The trial court is required to hold a hearing outside the
presence of the jury to determine the admissibility of the evidence. Evidence of prior
sexual conduct between the victim and the accused will only be admitted into evidence if
the trial court determines (a) the evidence is relevant to the issue of consent and (b) the
probative value of the evidence outweighs its prejudicial effect.
(1)
In the present case, the defendant failed to follow the requirements of Rule 412(d)
because the defendant failed to file a motion for a Rule 412 hearing at least ten days prior
to trial. The defendant served the State of Tennessee with a motion for a Rule 412
hearing during the trial and failed to submit a written offer of proof with the motion. The
defendant failed to serve the victim with a copy of the motion until the trial court required
the defendant to do so. The trial court required defense counsel to use a lunch recess for
the purpose of preparing a written offer of proof which is mandated by the rule.
The trial court exercised great leniency in permitting a Rule 412 hearing. There was
no indication the proffered testimony was newly discovered or the evidence could not have
been obtained earlier through the exercise of due diligence. Defense counsel explained
the lack of notice by stating: “I want the Court to note my objections, that the continuance
22
was denied and that I’m being left in a posture, I have not been able to comply with the
Procedural Evidentiary Rules.” Nevertheless, the trial court allowed a Rule 412 hearing,
stating “[t]his request for a Rule 412 hearing comes late, but I exercise my discretion and
grant the hearing because of the great seriousness of this particular case.”
The policies behind the rape shield law require strict compliance with the procedures
set forth in Tenn. R. Evid. 412(d). “[P]rior sexual behavior with others by the victim is
altogether inadmissable unless there is compliance with Rule 412(d) . . . .” State v.
Stephen Ray Stamps, Henry County No. 02-C-01-9301-CC-00002, 1994 WL 59451 (Tenn.
Crim. App., Jackson, March 2, 1994), per. app. denied (Tenn. July 18, 1994). See State
v. Gussie Willis Vann, Morgan County No. 03-C-01-9504-CR-00111, 1995 WL 548830(Tenn. Crim. App., Knoxville, Sept. 18, 1995). Therefore, the trial court’s exercise of its
discretion was limited to determining whether the testimony presented in the offer of proof
was newly discovered evidence or evidence which could not have been discovered
beforehand with the exercise of due diligence. Tenn. R. Evid. 412(d)(1)(i). The record
does not indicate whether this is what the trial judge meant when he stated he would use
“his discretion.”
This court will now proceed to evaluate the merits of the trial court’s ruling on the
proffered testimony.
(2)
The defendant argues the trial court erred by excluding the testimony of Brenda
Dishman, the defendant’s aunt, Donald Dishman, the defendant’s uncle, and Timothy
Nichols, the husband of the defendant’s cousin, regarding prior acts of sexual conduct
between the victim and the accused. It was offered to establish the victim consented to
the sexual penetration. Tenn. R. Evid. 412(c)(3).
Brenda Dishman testified the victim had visited her home, but she did not know if
the defendant and victim had sexual relations in her home. She was not at home when the
victim visited her home. When Ms. Dishman was questioned regarding whether she had
inquired if the victim had engaged in sexual relations with the defendant, she answered
“No, she volunteered to told [sic] it. Because Ben was married at that time, too, she told
23
that. This particular thing.” Donald Dishman testified the victim had asked him “if all the
Dishmans was [sic] great lovers like Ben.” Timothy Nichols testified the victim spoke with
him on the phone and told him how many times she had sexual relations with the
defendant and gave details about the encounters.
The trial court ruled the proffered testimony was vague and failed to demonstrate
any prior sexual conduct between the defendant and the victim. The trial court stated:
There’s no evidence that this defendant ever had sex with this
victim, Ms. Reed, except on November the 18th, 1995, at
which time, under this evidence, she’s brutally beaten in the
early winter, escaped naked and ran down the street to be
saved by on of her neighbors. But the issue of consent is not
an issue in this case under this ruling.
The defendant contends the proffered testimony of prior sexual conduct is
admissible pursuant to State v. Shockley, 585 S.W.2d 645 (Tenn. Crim. App. 1978).
However, Shockley was decided before the Tennessee Rules of Evidence were adopted.
Further, Shockley addressed a narrow factual scenario falling outside the rape shield law
in effect at the time. The appellant in Shockley did not attempt to introduce prior sexual
activity by the victim in order to demonstrate consent. The appellant sought to introduce
evidence of prior sexual activity during the time in which the victim became impregnated
in order to establish whether the pregnancy was caused by the rape or by other sexual
activity. 585 S.W.2d at 651. The defendant in the present case does not fall within the
narrow exception carved out of the rape shield laws by Shockley. Here, the defendant
attempted to introduce the evidence of prior sexual activity to show consent. The situation
is governed by Rule 412, not Shockley.
“The question of whether evidence is admissible rests within the sound discretion
of the trial court; and this Court will not interfere with the exercise of this discretion unless
clear abuse appears on the face of the record.” State v. Hill, 885 S.W.2d 357, 361 (Tenn.
Crim. App. 1994). No such clear abuse appears on the face of the record in this case.
The trial court heard the defendant’s offer of proof and conducted a proper analysis
pursuant to the rules of evidence.
This issue is without merit.
24
B.
The defendant argues that several portions of testimony and pieces of evidence
from the Rule 412 hearing should have been admitted to show bias or prior inconsistent
statements. Tenn. R. Evid. 613, 616.
(1)
A trial judge must find that evidence is relevant before the evidence is admissible.
The term “relevant evidence” is defined as “evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.” Tenn. R. Evid. 401. In
short, evidence is relevant if it tends to prove a material issue. Advisory Commission
Comments to Tenn. R. Evid. 401. The Tennessee Supreme Court analyzed the competing
interests between a defendant’s right to confrontation and cross-examination and the need
to exclude irrelevant evidence in State v. Sheline, 955 S.W.2d 42 (Tenn. 1997). The court
stated:
The United States Supreme Court has said that “the rights to
confront and cross examine witnesses and to call witnesses in
one’s own behalf have long been recognized as essential to
due process,” and emphasized that the denial or “significant
diminution” of these rights “calls into question the ultimate
integrity of the fact finding process and requires that the
competing interest be closely examined.”
This does not mean that a defendant has a right to present
irrelevant evidence. Moreover, the Supreme Court has
recognized that even the right to present relevant evidence
“may, in an appropriate case, bow to accommodate other
legitimate interests in the criminal trial process.” For instance,
a trial judge has the discretion “to limit reasonably a criminal
defendant’s right to cross-examine a witness ‘based on
concerns about, among other things, harassment, prejudice,
confusion of the issues, the witness’ safety, or interrogation
that is repetitive or only marginally relevant.’”
955 S.W.2d at 47 (citations omitted).
Rule 613 of the Tennessee Rules of Evidence permits the use of prior inconsistent
statements to impeach a witness. The opposing party may interrogate the witness
regarding such statements as long as the witness is “afforded an opportunity to explain or
25
deny the same.” Tennessee Rule of Evidence 616 states “[a] party may offer evidence by
cross-examination, extrinsic evidence, or both, that a witness is biased in favor of or
prejudiced against a party or another witness.”
The determination of the relevance of evidence, as well as the propriety, scope, and
manner of cross-examination, are left to the sound discretion of the trial judge. State v.
Hutchison, 898 S.W.2d 161, 172 (Tenn. 1994), cert. denied, 116 S.Ct. 137, 133 L.Ed.2d
84 (1995); State v. Harris, 839 S.W.2d 54, 72 (Tenn. 1992), cert. denied, 507 U.S. 954,
113 S.Ct. 1368, 122 L.Ed.2d 746 (1993); State v. Leath, 744 S.W.2d 591, 593 (Tenn. Crim.
App. 1987), per. app. denied (Tenn. 1988); Gray v. State, 191 Tenn. 526, 235 S.W.2d 20(1950). Such rulings will not be overturned on appeal absent a clear showing of an abuse
of discretion. State v. Caughron, 855 S.W.2d 526, 541 (Tenn.), cert. denied, 510 U.S. 979,
114 S.Ct. 475, 126 L.Ed.2d 426 (1993); State v. Williamson, 919 S.W.2d 69, 78 (Tenn.
Crim. App. 1995); State v. Hayes, 899 S.W.2d 175, 183 (Tenn. Crim. App.), per. app.
denied (Tenn. 1995).
(2)
The defendant first contends the trial court should not have excluded the testimony
of Brenda Dishman that the victim stated “the best relationship she had with [the
defendant] was when he was in the penitentiary” and she was “hurt” because the
defendant was married. These statements are not inconsistent with prior statements made
by the victim nor are they probative of bias. The victim had counseled the defendant and
assisted with his progress while he was in prison. When he received parole, the victim
provided him with a temporary residence. However, the defendant began drinking and
smoking marijuana, thereby causing a strain on the friendship. The victim did not make
a statement contradicting that she was “hurt” by the defendant’s marriage because she did
not testify regarding how she felt about the defendant’s marriage. Further, both statements
were vague and ambiguous, and were therefore not relevant to the issue of consent.
The defendant next argues it was error for the trial court to exclude a Thanksgiving
card the victim sent to the defendant stating, “I’m glad you came into my life.” The
defendant alleges the card was admissible as a prior inconsistent statement to impeach
26
the victim’s testimony that she only loved the defendant “as a parent would love a child.”
The notation on the Thanksgiving card does not constitute a contradictory statement and
does not indicate the victim and the defendant had a romantic relationship. This piece of
evidence is also irrelevant.
The defendant also argues the trial court should have admitted evidence that the
victim discontinued giving money to the defendant after he was released from prison. He
argues such evidence is relevant to show the victim’s bias after learning the defendant
married another woman. There is no indication in the record that the discontinuation of this
financial support was related to the defendant’s marriage. The defendant had been
released from prison and was able to seek employment and provide for himself. In
addition, whether the victim discontinued providing financial support to the defendant is not
relevant to consent. The trial court did not err in excluding this evidence.
The defendant also sought to introduce allegations made by the victim’s ex-husband
during cross-examination. The victim’s ex-husband alleged she “was in love with an
inmate” in divorce documents. This statement is vague, nonprobative and irrelevant. The
allegation did not specify any particular individual the victim allegedly loved. It is also
hearsay. This evidence was properly excluded.
The defendant argues that statements made by the victim’s ex-husband to the effect
the victim had depleted marital assets by incurring large phone bills should have been
admitted into evidence. Such statements are not relevant to the issue of whether the
victim consented to sexual intercourse with the defendant. They were not admissible to
impeach the victim. She admitted she accepted collect phone calls from the defendant.
The allegations did not sufficiently demonstrate bias.
Finally, the defendant contends the trial court should have permitted testimony by
the defendant’s uncle that he met the victim at a Hardee’s restaurant. The defendant
argues that such testimony would have impeached the credibility of the victim. The victim
testified she did not recall meeting the defendant’s uncle at the restaurant. Such testimony
is completely irrelevant to the material issues of this case. The trial court did not err in
excluding this testimony.
There was no abuse of discretion by the trial court in ruling on the admissibility of
27
evidence. The trial court properly limited the cross-examination of the victim. Tenn. R.
Evid. 611; State v. Lewis, 803 S.W.2d 260, 262 (Tenn. Crim. App. 1990).
This issue has no merit.
________________________________________
JOE B. JONES, PRESIDING JUDGE
CONCUR:
___________________________________
PAUL G. SUMMERS, JUDGE
___________________________________
CURWOOD WITT, JUDGE
28