State v. Biggs

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
November 29, 2005 Session

STATE OF TENNESSEE v. KEVIN HUNTER BIGGS

Direct Appeal from the Criminal Court for Hamilton County
No. 244715 Jon Kerry Blackwood, Senior Judge, Sitting by
Designation for the Honorable Stephen M. Bevil

No. E2005-01402-CCA-R3-CD - Filed August 25, 2006

A Hamilton County Criminal Court jury convicted the defendant, Kevin Hunter Biggs, of one count
of aggravated sexual battery, a Class B felony. The trial court sentenced the defendant to eight years
in the Department of Correction to be served at one hundred percent as a child rapist.1 The defendant
appeals, claiming (1) that the successor trial judge was not qualified to act as thirteenth juror; (2) that
the trial court erred in failing to include attempted aggravated sexual battery as a lesser included
offense; (3) that the state withheld exculpatory information from the defendant in violation of Brady
v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963) and Rule 16 of the Tennessee Rules of Criminal
Procedure; (4) that the designated trial judge erred in concluding the defendant’s newly discovered
evidence was not likely to change the result of the trial; and (5) that the trial court erred in admitting
irrelevant and highly prejudicial character and hearsay testimony. Concluding that the successor trial
judge could not act as the thirteenth juror, we reverse the judgment of the trial court and remand the
case for a new trial.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court Reversed and
Remanded

JOSEPH M. TIPTON , J., delivered the opinion of the court, in which GARY R. WADE, P.J., joined.
THOMAS T. WOODALL, J., filed a dissenting opinion.

Leslie A. Cory, Chattanooga, Tennessee, (on appeal); Stuart Brown, Chattanooga, Tennessee, (at
trial), for the appellant, Kevin Hunter Biggs.

Paul G. Summers, Attorney General and Reporter; Blind Akrawi, Assistant Attorney General;
William H. Cox, III, District Attorney General; Mary Sullivan Moore and Yolanda Mitchell,
Assistant District Attorneys General, for the appellee, the State of Tennessee.

1
W e note that the judgment form reflects the defendant was classified as a child rapist, however he should
have been classified as a violent offender. See T.C.A. §§ 39-13-523, 40-35-501(i)(1).
 OPINION

This case relates to the defendant’s being charged with touching a four-year-old relative. A
Hamilton County grand jury indicted the defendant for rape of a child, a Class A felony. The jury
convicted the defendant of the lesser included offense of aggravated sexual battery.

At the trial, Stephanie Howard testified that on November 30, 2002, she and her family went
to the defendant’s house for a belated Thanksgiving dinner. She said that she and the defendant were
related by marriage and that it was a family gathering. She said that everyone was “hanging around”
the kitchen preparing the meal and that the defendant was sitting in the living room. She testified
that her daughter, the four-year-old victim, was also in the living room watching television. She said
the defendant was wearing a bathrobe, as he frequently did around the house. She said she noticed
the living room was quiet and left the kitchen to check on her daughter. She said that when she
entered the living room, she saw her daughter standing on one end of the couch with her pants pulled
down and her vagina exposed. She said the defendant was leaning forward and “his head was
parallel with her [daughter’s] exposed parts.”

Ms. Howard testified that she asked the defendant what he was doing and that he “nearly
flipped off the couch he jumped so hard . . . . He knew he’d been caught.” She said the defendant
replied that he was doing “nothing” to the victim. She said that she did not see the defendant touch
the victim. She said she asked the victim why her pants were down and that the victim said the
defendant told her to take her pants off. She said that she asked the victim what the defendant was
doing to her and that the victim responded, “He licked my fanny.” She said that at that point,
everyone in the house had come into the living room. She said that everyone heard the victim say
that the defendant licked her fanny. She testified that the victim told her she needed to go to the
bathroom and that she went with the victim. She said the defendant denied touching the victim,
repeatedly saying, “I didn’t do it.” She said that the victim could not have “made up” the abuse,
because she “had no knowledge of that type of thing.”

Ms. Howard testified that she, her husband, and the victim left the defendant’s home and
went to Ms. Howard’s parents’ house. She said her husband questioned the victim in the car to try
and determine exactly what had happened. She said that on the following day, she and her husband
returned to the defendant’s house to confront him. She said that she and her husband intended to kill
the defendant and had purchased a 20-gauge shotgun for that purpose.

Ms. Howard testified that they had almost reached the road leading to the defendant’s house
when they saw the defendant driving his truck down the road toward them. She said that her husband
said, “Stop him, stop him” and that she pulled the car into the defendant’s lane and forced the
defendant to stop his truck. She said her husband exited the car and went to the window of the
defendant’s truck. She said the defendant was “double-talking like crazy” and trying to convince her
husband not to kill him. She testified that they eventually agreed to go to the defendant’s house to
talk. She said that the defendant went to the store and that she and her husband went to the
defendant’s house. She said that when the defendant returned to the house approximately forty-five

2
minutes later, he tried to explain to them that he did not do anything to the victim. She said an
argument ensued between the defendant and his wife. She said that the defendant’s wife was “truly
going at him, physically” and that the defendant then left the house. She said, “[W]e talked about it
for just a few minutes and . . . everyone in the household agreed, call the police. So we called the
police.”

On cross-examination, Ms. Howard acknowledged that before she called the police, she had
approximately three beers to calm herself down. She said that she did not call the police, the hospital,
or any crisis center when the incident occurred because she did not know what to do and did not know
anyone who had experience dealing with child sexual abuse. The police report showed that Ms.
Howard did not question her daughter about what had happened until they returned home. The report
did not describe the manner in which Ms. Howard discovered her daughter and the defendant. Ms.
Howard said that the report was incorrect and that she asked the victim what was happening
immediately upon seeing the victim with her pants down. She said that despite the omissions in the
police report, her testimony at the trial was an accurate account of how she found the defendant and
the victim. She said that it was normal for the defendant to wear a robe around the house but that she
did not know the defendant was not wearing anything underneath it until approximately two months
after she gave her statement to the police. She said that she found out that the defendant had exposed
himself to the victim on several different occasions. She said that she learned this information “when
people started talking and people started telling things that had been said to them by [the defendant’s]
wife, who had caught him doing this.”

Geoffrey Howard, the victim’s father, testified that at the time of the incident, he and the
defendant were friends and had been “pretty close” for several years. He said that he worked for the
defendant for approximately one year and that he lived with the defendant while he and his wife were
separated. He said the defendant’s wife, Diane Biggs, was his aunt. He said that on the evening of
the incident, he was in the kitchen at the defendant’s house when his wife began screaming that the
defendant had “touched” the victim. He testified that he “freaked out for a minute and then everybody
ran to the living room and was questioning him what [sic] he had done.” He said that the defendant
denied touching the victim in her vaginal area, claiming that he “licked her belly.” He said the victim
was scared and looked like she was going to cry. He said he took the victim into the kitchen and
asked what the defendant had done to her. He said she responded, “He touched my fanny.” He said
that he asked how the defendant “touched her fanny” and that the victim responded, “His tongue.”

Mr. Howard testified that they left the defendant’s home and that on the way home, the victim
repeatedly asked, “Why did he do that to me?” He said that he and his wife went back to the
defendant’s house the day after the incident in order to confront the defendant. He said that he and
his wife wanted to kill the defendant and that they had taken steps toward accomplishing that goal.
He testified that on their way to the defendant’s house, they saw the defendant driving his truck and
that they ran the defendant “out of the road [and] tried to get him out of his truck.” He said the
defendant said, “You can beat the hell out of me if you want to, but I didn’t do anything.” He said
that the defendant then left in his truck and that they went to the defendant’s house. He said that
when the defendant returned home, “[h]e stayed there long enough for [the defendant’s wife] to hear

3
what he done [sic], and everybody started fighting, throwing stuff, and he left.” He said they called
the police that evening while he, his wife, the defendant’s wife, Drew Biggs, Steve Sharp, and Angel
Grimes were there. He said that he had been working for the defendant at the time of the incident but
that he had not returned to work for him since that time.

On cross-examination, Mr. Howard said that when the incident occurred, he never thought
about taking the victim to the hospital or calling 9-1-1. He said they did not call the police until
approximately 5:30 p.m. the day after the incident. He admitted he was drinking on the day they
called the police, but he could not remember exactly what time he started drinking. He admitted that
his statement to the police was not accurate. He said that although his written statement to the police
said that the defendant’s robe was open and the defendant’s penis was visible, he actually meant that
the defendant had a visible erection that could be seen through the robe.

On re-direct examination, Mr. Howard said he never actually threatened to kill the defendant
when he and his wife ran the defendant off the road. On re-cross examination, Mr. Howard admitted
that he and the defendant had “heated words,” that he was angry when they ran the defendant off the
road, and that he tried to pull the defendant out of his truck.

The victim testified that the defendant touched her “fanny.” Using an anatomical diagram of
a child, the victim pointed to the vaginal area of the diagram to show where her fanny was located.
She said that the touching occurred in the living room at the defendant’s house and that the defendant
touched her fanny with his tongue. She said the defendant also touched her fanny with his hand. The
victim said that her panties were pulled down when the defendant touched her and that the defendant
told her not to tell her mother.

On cross-examination, the victim said that before testifying, she spoke to the prosecutor and
to her mother about what had happened. She said that if she got “stuck” telling her story, the
prosecutor would help her out. She also said that her mother helped her remember what happened
and explained to the victim how to tell her story.

Hamilton County Sheriff’s Detective Robert Starnes testified that he responded to the call
from the victim’s parents. He said that when he reached the defendant’s house, the victim’s parents
and the defendant’s wife were present at the scene along with a few other individuals. He said he was
told the abuse had occurred in the living room. He said that the defendant was not present, having
left the scene before the police were called, and that the victim was not present. He said the victim
was later interviewed by a forensic interviewer at the Children’s Advocacy Center in Hamilton
County. He said that Child Protective Services and law enforcement officers observed the interview
via a video monitor.

Detective Starnes testified that there was no visible bruising or injury to the victim’s vaginal
area. He said he did not order a medical examination to be conducted on the victim, because based
on his experience, any delay in obtaining evidence generally results in evidence being destroyed. He
said that the only possible evidence in this case would have been saliva, but that he did not believe

4
any DNA evidence would be available twenty-four hours after the abuse. He said that there is
frequently no physical evidence in child sexual abuse cases.

Rodney Fisher testified that he had been a private investigator for two years, and before that,
he had worked for the United States Marshals Service. He said he was hired by defense counsel to
interview witnesses involved in this case and collect evidence in an effort to determine what
happened. He said he took measurements of the inside and outside of the defendant’s house. He said
the distance from the kitchen to the living room was seventeen feet and eight inches.

Hamilton County Sheriff’s Deputy Robin Langford testified that on December 1, 2002, she
responded to a call at the defendant’s house. She said that when she arrived, the witnesses explained
that they had found the defendant in the living room with the four-year-old victim whose pants were
down. She said that after leaving the defendant’s home and returning to their own house, the victim’s
parents asked the victim about what had happened. She said that it was at that time that the victim
told her parents that the defendant “had touched her private area with his tongue.”

Melanie Barton testified that she worked for the Hamilton County Board of Education,
specifically with special education, mentally retarded, and Down Syndrome children. She said she
also worked with foster children and was a foster parent. She said that on December 1, 2002, the
defendant’s wife called upset and asked Ms. Barton to come to her home. She said she arrived at the
defendant’s home between 9:30 a.m. and 10:00 a.m. She said that about one hour after she arrived,
everyone, except herself, started drinking beer. She said the defendant’s wife and the victim’s parents
explained to her what had happened. She said that she suggested four or five times that they call the
police because they were very upset and threatening to kill the defendant and because of the
possibility that the victim had been abused. She said it was her understanding that the victim’s
mother had taken the victim to the bathroom shortly after the incident and that it was at that time that
the victim said the defendant had licked her fanny.

The jury convicted the defendant of the lesser included offense of aggravated sexual battery.
The trial judge, Judge Stephen M. Bevil, accepted the jury’s verdict. Because of illness, Judge Bevil
was unable to conduct the sentencing hearing and the motion for new trial hearing. Judge Doug
Meyer presided at the sentencing hearing and sentenced the defendant to eight years to be served at
one hundred percent in the Department of Correction. Senior Judge Jon Kerry Blackwood presided
over the motion for new trial hearing and denied the defendant’s motion.

The defendant raises five issues on appeal including (1) whether the successor trial judge
conducting the motion for new trial, who did not preside at the trial, erred in ruling he could
sufficiently familiarize himself with the trial record in order to determine the credibility of the state’s
witnesses and act as thirteenth juror in approving the jury verdict; (2) whether the trial court erred in
failing to include attempted aggravated sexual battery as a lesser included offense in the jury charge;
(3) whether the state’s refusal to provide the defendant with a copy of the victim’s interview at the
Children’s Advocacy Center violated Brady or Rule 16 of the Tennessee Rules of Criminal
Procedure; (4) whether the successor trial judge at the motion for new trial hearing erred in

5
concluding the defendant’s newly discovered evidence was not likely to change the result of the trial;
and (5) whether the trial court erred in admitting irrelevant, highly prejudicial, and impermissible
character and hearsay testimony by Stephanie Howard.

I. THIRTEENTH JUROR

The defendant argues that the successor trial judge at the hearing on the motion for new trial
improperly concluded that he could sufficiently familiarize himself with the record and act as the
thirteenth juror. The defendant argues that in a case such as this, when there is no physical evidence,
the entire role of the trial judge as thirteenth juror is to assess the credibility of witnesses. He
contends it is impossible to make credibility determinations solely from a review of the record. He
asserts that “[w]here credibility is the overriding factor in the determination of guilt or innocence,
only the trial judge can serve as thirteenth juror.” He cites several cases in support of his argument
that conclude that because the judge presiding at the trial did not act as the thirteenth juror, the
conviction should be reversed and the case remanded for a new trial.

The state contends the trial court properly denied the defendant’s motion for a new trial and
properly acted as thirteenth juror. The state asserts the successor judge announced that he reviewed
the entire record and familiarized himself with the record to the extent necessary to serve as the
thirteenth juror. The state asserts the successor judge gave a summary of the witnesses’ testimony
and found that there was no basis to attack the credibility of the witnesses and that none of the
witnesses’ testimony was contradicted. The state also contends that nothing in the record shows that
the trial court was dissatisfied with the guilty verdict reached by the jury. The state asserts that the
trial judge “heard the entire trial, he sat as the [thirteenth] juror, he got to see the credibility of the
witnesses, and he agreed with the verdict.”

Rule 33(d)2 of the Tennessee Rules of Criminal Procedure provides that a “trial court may
grant a new trial following a verdict of guilty if it disagrees with the jury about the weight of the
evidence.” The rule “is the modern equivalent to the ‘thirteenth juror rule,’ whereby the trial court
must weigh the evidence and grant a new trial if the evidence preponderates against the weight of the
verdict.” State v. Blanton, 926 S.W.2d 953, 958 (Tenn. Crim. App. 1996). Our supreme court has
held that the rule “imposes upon a trial court judge the mandatory duty to serve as the thirteenth juror
in every criminal case, and that approval by the trial judge of the jury’s verdict as the thirteenth juror
is a necessary prerequisite to imposition of a valid judgment.” State v. Carter, 896 S.W.2d 119, 122
(Tenn. 1995).

In this case, the original trial judge was unable to preside over the hearing on the motion for
new trial due to illness. Tennessee Rule of Criminal Procedure 25(b) addresses situations when the
trial judge is unable to perform post-verdict duties due to absence, sickness, death, or other disability.
The rule provides in pertinent part,

2
W e note that the Tennessee Rules of Criminal Procedure were reformatted on July 1, 2006, which changed
Rule 33(f) to Rule 33(d) but did not change the substance of the rule.

6
 (b) After Verdict of Guilt. –

(1) In General. –After a verdict of guilty, any judge regularly presiding
in or who is assigned to a court may complete the court’s duties if the
judge before whom the trial began cannot proceed because of absence,
death, sickness, or other disability.

(2) Granting a New Trial. –The successor judge may grant a new trial
when that judge concludes that he or she cannot perform those duties
because of the failure to preside at the trial or for any other reason.

Tenn. R. Crim. P. 25(b).

Although Rule 33(d) does not explicitly require a statement on the record indicating that the
trial court has carried out its duty as the thirteenth juror, our supreme court has said the duty is
mandatory in every case. State v. Brown, 53 S.W.3d 264, 274 (Tenn. Crim. App. 2000) (citing
Carter, 896 S.W.2d at 122). In this regard, the court has stated that when a trial court overrules a
motion for new trial without comment, an appellate court may presume that the trial court approved
the verdict as the thirteenth juror, even when the weight of the evidence is not raised in the motion.
Carter, 896 S.W.2d at 122. On the other hand, when a trial court comments on the record about its
thirteenth juror determination, the ruling should be clear and unequivocal. State v. Moats, 906
S.W.2d 431, 435 (Tenn. 1995).

This court has previously concluded that “a successor judge’s consideration, pursuant to Rule
25(b) [of the Tennessee Rules of Criminal Procedure] of whether the duties of the original judge can
be met must include an assessment of his or her ability to act as a thirteenth juror, including witness
credibility.” State v. Nail, 963 S.W.2d 761, 765 (Tenn. Crim. App. 1997) (citing State v. Bilbrey, 858
S.W.2d 911, 914 (Tenn. Crim. App. 1993)). “In assessing whether the successor judge can act as
thirteenth juror, the judge would need to determine the extent to which witness credibility was a factor
in the case and the extent to which he had sufficient knowledge or records before him in order to
decide whether the credible evidence, as viewed by the judge, adequately supported the verdict.”
Brown, 53 S.W.3d at 275. If the successor judge is unable to make these determinations, the judge
cannot approve the verdict and a new trial must be granted. Id. (citing Nail, 963 S.W.2d at 766). A
judge who is first exposed to the case when called to preside over a motion for new trial may rule on
the motion if the record is available as long as witness credibility is not an overriding issue. Id.
When witness credibility is the primary issue raised in the motion for new trial, the successor judge
may not approve the judgment and must grant a new trial. Id.

First, we will address the state’s assertion that the original trial judge sat as the thirteenth juror
by agreeing with the verdict. When the jury returned with the verdict, the trial judge asked the jury
foreperson to read the verdict. The trial judge then stated:

7
 If that’s the verdict of each and every one of you on the jury,
would you so indicate by raising your right hand, please? All right.
Thank you. Would you pass those papers for me?

....

All right. Would you stand, please, Mr. Biggs? Mr. Biggs,
based on the finding of the jury that you are guilty of the lesser-
included offense of aggravated sexual battery, it is the judgment of the
Court that you are guilty of aggravated sexual battery.

This court has previously stated that “we may only consider the statements of the trial judge made in
passing on the motion for new trial in our review of the trial judge’s actions as thirteenth juror.” State
v. Dale Nolan, No. 01C01-9511-CC-00387, Sequatchie County, slip op. at 28 (Tenn. Crim. App. June
26, 1997) (citing Cumberland Tel. & Tel. Co. v. Smithwick, 112 Tenn. 463, 467-68, 79 S.W. 803,
804 (1903)). However, we do not believe that Nolan forecloses the satisfaction of the trial court’s
role as thirteenth juror at any time after the verdict other than at the motion for new trial hearing when
a trial court makes a statement that is a clear approval or disapproval of that verdict. See Carter, 896
S.W.2d at 122 (holding the trial court carried out its duty as the thirteenth juror when ruling on the
defendant’s motion for judgment of acquittal). In the present case, though, we do not view the trial
judge’s statement to be an agreement with the jury’s verdict or a clear statement of its approval or
disapproval of the verdict. We conclude that the trial judge’s statement in front of the jury was not
enough to satisfy the judge’s role as the thirteenth juror. See State v. Ernest L. McCormick, No.
01CO1-9502-CC-00027, Rutherford County, slip op. at 9 (Tenn. Crim. App. Oct. 4, 1995)
(concluding that the trial judge acted as thirteenth juror because the judge stated, “I accept that
verdict,” upon the jury’s return of the guilty verdict and the judge stated at the motion for new trial
hearing that he believed the state proved the defendant’s guilt beyond a reasonable doubt).

Next, we address the crux of the defendant’s argument that the successor judge erroneously
concluded that he could sufficiently familiarize himself with the written record in order to act as the
thirteenth juror and approve the jury’s verdict. “Given the statement made by our supreme court
regarding the purpose of the thirteenth juror rule, it is difficult to see how a trial judge who has not
heard the evidence and who has not seen the witnesses can act as the thirteenth juror when weight and
credibility are issues.” Brown, 53 S.W.3d at 275. “When a trial judge is asked to review the weight
and credibility of the evidence as the thirteenth juror based upon a written record, the trial judge ‘is
in no better position to evaluate the weight of the evidence than an appellate court.’” Id. (quoting
Moats, 906 S.W.2d at 435). The appellate courts have no independent authority to act as thirteenth
juror. See State v. Burlison, 868 S.W.2d 713, 719 (Tenn. Crim. App. 1993).

This case involved accusations by the victim and her parents and a denial of any wrongdoing
by the defendant, with no physical evidence present. Witness credibility was an overriding issue in
this case. The jury chose to accredit the testimony of the victim and her parents. However, the
successor judge was not at the trial to see any of the witnesses testify and would have been unable to

8
make a credibility determination from the written record. A successor judge cannot rule on a motion
for a new trial if witness credibility is an overriding issue. See Brown, 53 S.W.3d at 275. We
conclude that the successor judge could not act as the thirteenth juror in this case because credibility
was an overriding issue. We reverse the judgment of the trial court and remand this case for a new
trial.

II. LESSER INCLUDED OFFENSES

The defendant next argues that the trial court erred in failing to charge the jury on attempted
aggravated sexual battery as a lesser included offense of rape of a child. The defendant contends that
the evidence supported the charge of attempted aggravated sexual battery and that the trial court was
required to instruct the jury to consider the lesser included offense. The defendant asserts that the trial
court instructed the jury regarding the lesser included offenses of aggravated sexual battery, child
abuse, and assault. He argues that if the trial court found the evidence sufficient to instruct the jury
as to those lesser included offenses, then the evidence was likewise sufficient for a charge of
attempted aggravated sexual battery.

The state contends that because the evidence of the convicting offense shows that the offense
was completed, an instruction on the lesser included offense of attempt was not required. The state
asserts there was no evidence presented that the defendant attempted to lick the victim’s “fanny” but
was unsuccessful in completing the offense. The state contends that reasonable minds could not have
accepted the victim’s testimony as demonstrating mere attempt.

Absent a written request for an instruction on lesser included offenses, the failure of the trial
court to instruct the jury on any lesser included offenses is not available as a ground for relief either
in a motion for new trial or on appeal. T.C.A. § 40-18-110(c). Because the defendant failed to file
a written request asking the trial judge to instruct the jury on the lesser included offense of attempted
aggravated sexual battery, he waived this issue on appeal unless it rises to the level of plain error. See
State v. Page, 184 S.W.3d 223, 226 (Tenn. 2006) (concluding that issues concerning jury instructions
on lesser included offenses which were not requested in writing at the time of trial pursuant to
Tennessee Code Annotated section 40-18-110(c), may still be reviewed on appeal under the plain
error doctrine). Therefore, we must determine if the failure to give an instruction on attempted
aggravated sexual battery rises to the level of plain error.

Rule 52(b) of the Tennessee Rules of Criminal Procedure provides:

(b) Plain Error. – When necessary to do substantial justice, an
appellate court may consider an error that has affected the substantial
rights of an accused at any time, even though the error was not raised
in the motion for a new trial or assigned as error on appeal.

See also T.R.A.P. 36(b). Our supreme court has adopted the factors developed by this court to be
considered

9
 when deciding whether an error constitutes “plain error” in the absence
of an objection at trial: “(a) the record must clearly establish what
occurred in the trial court; (b) a clear and unequivocal rule of law must
have been breached; (c) a substantial right of the accused must have
been adversely affected; (d) the accused did not waive the issue for
tactical reasons; and (e) consideration of the error is necessary to do
substantial justice.”

State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d 626, 641-42
(Tenn. Crim. App. 1994)). In order for this court to reverse the judgment of a trial court, the error
must be “of such a great magnitude that it probably changed the outcome of the [proceedings],” and
“recognition should be limited to errors that had an unfair prejudicial impact which undermined the
fundamental fairness of the trial.” Adkisson, 899 S.W.2d at 642.

In State v. Burns, 6 S.W.3d 453 (Tenn. 1999), our supreme court adopted a modified version
of the Model Penal Code in order to determine what constitutes a lesser included offense:

An offense is a lesser-included offense if:

(a) all of its statutory elements are included within the statutory
elements of the offense charged; or

(b) it fails to meet the definition in part (a) only in the respect that it
contains a statutory element or elements establishing

(1) a different mental state indicating a lesser kind of
culpability; and/or

(2) a less serious harm or risk of harm to the same
person, property or public interest; or

(c) it consists of

(1) facilitation of the offense charged or of an offense
that otherwise meets the definition of lesser-included
offense in part (a) or (b); or

(2) an attempt to commit the offense charged or an
offense that otherwise meets the definition of
lesser-included offense in part (a) or (b); or

10
 (3) solicitation to commit the offense charged or an
offense that otherwise meets the definition of
lesser-included offense in part (a) or (b).

Burns, 6 S.W.3d at 466-67.

If an offense is a lesser included offense, then the trial court must conduct the following
two-step analysis in order to determine if the lesser included offense instruction should be given:

First, the trial court must determine whether any evidence exists that
reasonable minds could accept as to the lesser-included offense. In
making this determination, the trial court must view the evidence
liberally in the light most favorable to the existence of the
lesser-included offense without making any judgments on the
credibility of such evidence. Second, the trial court must determine if
the evidence, viewed in this light, is legally sufficient to support a
conviction for the lesser-included offense.

Id. at 469.

If a trial court improperly omits a lesser included offense instruction, then constitutional
harmless error analysis applies and this court must determine if the error did not affect the outcome
of the trial beyond a reasonable doubt. State v. Ely, 48 S.W.3d 710, 725 (Tenn. 2001). “In making
this determination, a reviewing court should conduct a thorough examination of the record, including
the evidence presented at trial, the defendant’s theory of defense, and the verdict returned by the jury.”
State v. Allen, 69 S.W.3d 181, 191 (Tenn. 2002).

The defendant was charged with the offense of rape of a child. The trial court properly
instructed the jury on aggravated sexual battery as a lesser included offense. See State v. Evans, 108
S.W.3d 231, 237 (Tenn. 2003) (providing that State v. Elkins, 83 S.W.3d 706, 713 (Tenn. 2002),
recognized that aggravated sexual battery is a lesser included offense of rape of a child). Under part
(c) of the Burns test, “an attempt to commit the offense charged or an offense that otherwise meets
the definition of lesser-included offense” is a lesser included offense of the charged offense. Burns,
6 S.W.3d at 466-67. Therefore, attempted aggravated sexual battery is a lesser included offense of
rape of a child.

Having determined that attempted aggravated sexual battery is a lesser included offense of
rape of a child, the next step is to determine if the evidence in the record supports charging the
offense. Aggravated sexual battery, in this instance, is defined as the “unlawful sexual contact with
a victim by the defendant or the defendant by a victim” if “[t]he victim is less than thirteen (13) years
of age.” T.C.A. § 39-13-504(a)(4). Attempt is defined as follows:

11
 (a) A person commits criminal attempt who, acting with the kind
of culpability otherwise required for the offense:

(1) Intentionally engages in action or causes a result that
would constitute an offense if the circumstances
surrounding the conduct were as the person believes
them to be;

(2) Acts with intent to cause a result that is an element of
the offense, and believes the conduct will cause the
result without further conduct on the person’s part; or

(3) Acts with intent to complete a course of action or cause
a result that would constitute the offense, under the
circumstances surrounding the conduct as the person
believes them to be, and the conduct constitutes a
substantial step toward the commission of the offense.

(b) Conduct does not constitute a substantial step under
subdivision (a)(3) unless the person’s entire course of action is
corroborative of the intent to commit the offense.

T.C.A. § 39-12-101(a), (b).

At the trial, the victim testified that the defendant touched her “fanny” with his tongue and
with his hand. Using a diagram, the victim identified her vaginal area as her “fanny.” The victim’s
mother testified that when she entered the living room, she saw that the victim’s pants were pulled
down and that the defendant’s head was parallel to the victim’s vagina. The victim told her mother
that the defendant told her to pull her pants down. The victim then told her mother that the defendant
“licked my fanny.” The defendant denied it saying, “I didn’t do it, I didn’t do it.” The victim’s father
testified that the victim told him that the defendant had touched her “fanny” with his tongue. He said
the defendant’s response was that he did not do anything. When asked if the defendant gave an
explanation about what had happened, both the victim’s mother and father testified that the defendant
said he licked the victim’s belly.

An attempt instruction is not required if the only proof presented was proof of the completed
crime as opposed to an attempt. See State v. Marcum, 109 S.W.3d 300, 304 (Tenn. 2003); see also
State v. Stokely J. U. Way, No. E2002-00251-CCA-R3-CD, Cocke County, slip op. at 16-17 (Tenn.
Crim. App. Feb. 9, 2004) (concluding attempted rape instruction not necessary because the only
evidence presented was the victim’s testimony that the defendant penetrated her). The victim’s
parents testified that the defendant said he licked the victim’s belly. We conclude this was sufficient
to raise the issue of an attempt. However, we believe it would not lead to a new trial.

12
 The defense theory of the case was that the defendant did not touch the victim, as
demonstrated through the defendant’s closing argument:

And before I start going over the evidence, there are lesser charges.
And the judge will instruct you, you may find one, but you may not
find another. I want to tell you here and today he is either guilty of
rape or he is guilty of nothing. There is no half maybe, there’s no let’s
give him something when there’s not enough evidence to give him
rape. He’s either guilty or he’s not; he either touched that child or he
didn’t.

Additionally, the victim testified that the defendant licked her vagina. The victim’s mother testified
that when she walked into the room her daughter’s pants were down, and the defendant’s head was
parallel with the victim’s vagina. The victim’s parents testified the victim told them that the
defendant had licked her vagina. Therefore, we conclude that beyond a reasonable doubt the failure
to instruct on attempted aggravated sexual battery did not affect the outcome of the trial. The
defendant is not entitled to relief on this issue.

III. BRADY VIOLATION AND
TENNESSEE RULE OF CRIMINAL PROCEDURE 16 VIOLATION

Before trial, the state did not provide the defendant with a copy of the summary of the forensic
interview conducted with the victim at the Children’s Advocacy Center. The defendant asserts that
the summary contained exculpatory evidence and as such, failure to disclose the information
constituted a Brady violation, as well as a violation of Rule 16 of the Tennessee Rules of Criminal
Procedure. Additionally, the defendant argues that he was deprived of an opportunity to investigate
the extent to which the victim’s testimony was tainted as a result of her interview. The state argues
the information was neither exculpatory nor material, and therefore, there was no Brady violation.
The state also argues that pursuant to Rule 16(a)(2) of the Tennessee Rules of Criminal Procedure and
Tennessee Code Annotated section 37-1-612, the information was not discoverable.

The summary of the forensic interview was placed under seal in the trial court and submitted
as part of the record on appeal. Portions of the forensic interview summary were published in the
presentence report and became a public record once the report was filed. The record reflects that the
presentence report was not filed until July 8, 2004, after the trial was concluded. Therefore, the
defendant was unaware of the content of the forensic interview until after the close of proof.

A. Brady Violation

In Brady, the Supreme Court held that “suppression by the prosecution of evidence favorable
to an accused upon request violates due process where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87, 83 S. Ct.
at 1196-97. In order to establish a due process violation under Brady, four prerequisites must be met:

13
 1. The defendant must have requested the information (unless the
evidence is obviously exculpatory, in which case the State is
bound to release the information, whether requested or not);

2. The State must have suppressed the information;

3. The information must have been favorable to the accused; and

4. The information must have been material.

State v. Edgin, 902 S.W.2d 387, 389 (Tenn. 1995); see also, State v. Evans, 838 S.W.2d 185 (Tenn.
1992).

The defendant has the burden of proving a constitutional violation by a preponderance of the
evidence. State v. Spurlock, 874 S.W.2d 602, 610 (Tenn. Crim. App. 1993). Demonstrating a
constitutional violation requires the defendant to show that without the omitted material he has been
denied the right to a fair trial. United States v. Agurs, 427 U.S. 97, 108, 96 S. Ct. 2392, 2399 (1976).

Assuming that the defendant demonstrates the first three elements of a Brady violation, he
must still show the materiality of the omitted material. The United States Supreme Court has held
that “a showing of materiality does not require demonstration by a preponderance that disclosure of
the suppressed evidence would have resulted ultimately in the defendant’s acquittal.” Kyles v.
Whitley, 514 U.S. 419, 434, 115 S. Ct. 1555, 1565-66 (1995) (citing United States v. Bagley, 473
U.S. 667, 682, 105 S. Ct. 3375, 3383-84 (1985)). As stated by the United States Supreme Court:

[The] touchstone of materiality is a “reasonable probability” of
a different result, and the adjective is important. The question is not
whether the defendant would more likely than not have received a
different verdict with the evidence, but whether in its absence he
received a fair trial, understood as a trial resulting in a verdict worthy
of confidence. A “reasonable probability” of a different result is
accordingly shown when the government’s evidentiary suppression
“undermines confidence in the outcome of the trial.”

Kyles, 514 U.S. at 434, 115 S. Ct. at 1566 (citing Bagley, 473 U.S. at 678, 105 S. Ct. at 3381). In
other words, the inquiry is whether we can be confident that the jury’s verdict would have been the
same if the state had disclosed the favorable evidence to the defendant. Id. at 453, 115 S. Ct. at 1575.

In Bagley, the Supreme Court explained that constitutional error results in the withholding of
“material” evidence, and materiality exists when “there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would have been different.” 473
U.S. at 682, 105 S. Ct. at 3383. The “materiality” of suppressed, favorable evidence was discussed
at length in Kyles and Johnson v. State, 38 S.W.3d 52 (Tenn. 2001). Those cases identify four aspects

14
of materiality. First, “a showing of materiality does not require demonstration by a preponderance
that disclosure of the suppressed evidence would have resulted ultimately in the defendant’s
acquittal.” Kyles, 514 U.S. at 434, 115 S. Ct at 1566; see also Johnson, 38 S.W.3d at 58. Second,
when determining the materiality of suppressed information, the trial court should not conduct a
sufficiency of the evidence test. Kyles, 514 U.S. at 434, 115 S. Ct. at 1566; Johnson, 38 S.W.3d at
58. As the Supreme Court stated in Kyles, “One does not show a Brady violation by demonstrating
that some of the inculpatory evidence should have been excluded, but by showing that the favorable
evidence could reasonably be taken to put the whole case in such a different light as to undermine
confidence in the verdict.” Kyles, 514 U.S. at 435, 115 S. Ct. at 1566. Third, once it has been
determined that a constitutional violation occurred, there is no reason to conduct a harmless error
analysis. Id.; Johnson, 38 S.W.3d at 63. Finally, the materiality of the suppressed evidence should
be “considered collectively, not item by item.” Kyles, 514 U.S. at 436, 115 S. Ct. at 1566. This
means the state’s obligation to disclose the evidence is left solely to the prosecutor who has “the
responsibility to gauge the likely net effect of all such evidence and make disclosure when the point
of ‘reasonable probability’ is reached.” Id. at 420, 115 S. Ct. at 1558. Plainly stated, establishing
materiality requires a “showing that the favorable evidence could reasonably be taken to put the whole
case in such a different light as to undermine confidence in the verdict.” Id. at 435, 115 S. Ct. at
1566; see Johnson, 38 S.W.3d at 58.

We have reviewed the presentence report and the sealed documents containing the original
summary of the forensic interview. A comparison of the summary and presentence report revealed
that, with few exceptions, almost all of the information contained in the summary is also included in
the presentence report.

Based upon information from the interview included in the presentence report, the defendant
contends that the state should have disclosed before the trial that during the forensic interview, the
victim stated that the defendant did not touch her with anything other than with his tongue. At the
trial, the victim testified that the defendant touched her with both his tongue and his hand. The
defendant argues that the jury would not have convicted him of aggravated sexual battery had it
known that he did not touch the victim with his hand. He also argues that he should have been made
aware of the fact that the victim identified her stomach as a place where a “bad touch” occurs, because
this is consistent with his contention that he tickled and blew on her stomach. The defendant argues
that had he known the victim considered her stomach a place where “bad touching” occurred, he
might have developed his explanation of the events that occurred as part of his defense that he did not
touch the victim in a sexual manner.

Although the state’s failure to disclose the summary of the interview precluded the jury from
considering this information, we cannot conclude that the defendant suffered a constitutional
violation. The victim’s statements identify the defendant as the perpetrator who licked her vagina.
Whether the defendant also used his hand to touch the victim is unnecessary for a jury to find the
defendant guilty of aggravated sexual battery. Much of the information in the summary of the
presentence report, including that the victim touched the defendant’s private part “long long ago,” is
extremely inculpatory information that was not developed at the trial. As such, confidence in the

15
verdict is not undermined by the fact that the victim gave conflicting statements about the defendant
touching her vagina with his hand. Accordingly, we hold that the state’s failure to disclose to the
defendant the summary of the forensic interview was not a violation of the defendant’s due process
rights pursuant to Brady. The defendant is not entitled to relief on this issue.

B. Tennessee Rule of Criminal Procedure 16 Violation

The defendant also argues that the state’s failure to disclose the forensic interview summary
violated Rule 16 of the Tennessee Rules of Criminal Procedure which governed pretrial discovery
of evidence. In pertinent part, the rule provided as follows:

(a) Disclosure of Evidence by the State.

(1) Information Subject to Disclosure

....

(C) Documents and Tangible Objects. – Upon
request of the defendant, the state shall permit
the defendant to inspect and copy or
photograph books, papers, documents,
photographs, tangible objects, buildings or
places, or copies or portions thereof, which are
within the possession, custody or control of the
state, and which are material to the preparation
of the defendant’s defense or are intended for
use by the state as evidence in chief at the trial,
or were obtained from or belong to the
defendant.

(D) Reports of Examinations and Tests.– Upon
request of a defendant the state shall permit the
defendant to inspect and copy or photograph
any results or reports of physical or mental
examinations, and of scientific tests or
experiments, or copies thereof, which are
within the possession, custody or control of the
state, the existence of which is known, or by
the exercise of due diligence may become
known, to the district attorney general and
which are material to the preparation of the
defense or are intended for use by the state as
evidence in chief at the trial.

16
 (2) Information Not Subject to Disclosure. – Except as provided
in paragraphs (A), (B), and (D) of subdivision (a)(1), this rule
does not authorize the discovery or inspection of reports,
memoranda, or other internal state documents made by the
district attorney general or other state agents or law
enforcement officers in connection with the investigation or
prosecution of the case, or of statements made by state
witnesses or prospective state witnesses.

Tenn. R. Crim. P. 16(a)(1)(C) & (D), (a)(2) (2004).

Rule 16 allows for pretrial discovery of tangible objects and reports of examinations and tests
but prohibits the pretrial discovery of statements by state witnesses. The defendant claims that the
statements by the victim to the forensic interviewer were not “statements made by [a] state witness”
as contemplated by Rule 16 of the Tennessee Rules of Criminal Procedure and therefore were subject
to disclosure. In this assertion, the defendant is correct.

Tennessee Rule of Criminal Procedure 26.2 governs the production of witness statements.
Rule 26.2 provides that on motion of a party who did not call the witness, the trial court shall order
the opposing party “to produce, for the examination and use of the moving party, any statement of the
witness that is in their possession and that relates to the subject matter of the witness’s testimony.”
Tenn. R. Crim. P. 26.2(a). Under Rule 26.2, the state has no obligation to provide a defendant with
a copy of a witness statement until after the witness has testified. Id.; see also State v. Taylor, 771
S.W.2d 387, 394 (Tenn. 1989) (holding that there is “no constitutional requirement that the State
provide witnesses’ statements prior to trial. The State has no obligation to produce statements of a
witness until the conclusion of the witness’ testimony on direct examination.”). Rule 26.2(f) defines
“statement” as follows:

(1) A written statement that the witness makes and signs, or otherwise
adopts or approves; or
(2) A substantially verbatim, contemporaneously recorded recital of
the witness’s oral statement that is contained in a stenographic,
mechanical, electrical, or other recording or a transcription of such a
statement.

The summary does not meet the definition of a “statement” under Rule 26.2 because it is not
signed or adopted by the victim, and it is not a verbatim recording of what the victim said. As such,
the state had no obligation to produce the summary under Rule 26.2.

However, because Tennessee Code Annotated section 37-1-612 makes reports of child sexual
abuse confidential, we do not reach the question of whether the summary is subject to disclosure
under Rule 16. T.C.A. § 37-1-612(a), (b). Although the statute identifies exceptions to the
prohibition against production of child sexual abuse reports, this court has held that production to

17
individuals accused of child sexual abuse is not among the exceptions. See T.C.A. § 37-1-612(b)(1)-
(7); State v. Gibson, 973 S.W.2d 231, 244 (Tenn. Crim. App. 1997); State v. Clabo, 905 S.W.2d 197,
201 (Tenn. Crim. App. 1995). The defendant, who is accused of child sexual abuse, wanted access
to the interview to obtain inconsistencies in the victim’s statements. However, we conclude that the
defendant was not entitled to those records and that he is not entitled to relief on this issue.

IV. NEWLY DISCOVERED EVIDENCE

The defendant next argues that the trial court erred in denying his motion for new trial based
on newly discovered evidence. He contends that newly discovered evidence that Geoff Howard
purchased a gun on December 3, 2002, indicates that Ms. Howard perjured herself at the trial. He
asserts Ms. Howard testified that because they were extremely upset about what had happened to their
daughter, she and Mr. Howard purchased a gun on December 1, 2002, and went to the defendant’s
house to kill him. The defendant argues that because the only evidence against him is testimonial,
the importance of the witnesses’ credibility is magnified. The defendant argues that the fact that the
Howards falsified a significant aspect of their testimony is relevant because it makes it more probable
that their allegations against the defendant were false. He also contends that the state’s reliance on
this perjured testimony played a major role in the jury’s determination of guilt. The defendant argues
that if he had been able to impeach Ms. Howard’s testimony, the jury might have returned a verdict
of not guilty.

The state responds that the trial court did not abuse its discretion in denying the defendant’s
motion for a new trial. The state contends that the “newly discovered evidence” could have only been
used for impeachment purposes, that it did not meet the standard for newly discovered evidence, and
that it would not have changed the outcome of the trial. The state also contends that Ms. Howard’s
testimony about when she purchased the firearm is irrelevant to the issues at the trial.

The decision to grant or deny a new trial on the basis of newly discovered evidence is a matter
that rests in the sound discretion of the trial court. State v. Goswick, 656 S.W.2d 355, 358 (Tenn.
1983). However, a new trial is a matter of right only when the defendant establishes (1) reasonable
diligence in seeking newly discovered evidence, (2) the materiality of the evidence, and (3) that the
new evidence is likely to change the result of the trial to one more favorable for the defendant. State
v. Bowers, 77 S.W.3d 776, 784 (Tenn. Crim. App. 2001) (citing State v. Singleton, 853 S.W.2d 490,
496 (Tenn. 1993)). When newly discovered evidence merely tends to contradict or impeach the trial
evidence, a new trial is not always warranted. State v. Sheffield, 676 S.W.2d 542, 544 (Tenn. Crim.
App. 1984). On appeal, our standard of review is abuse of discretion. State v. Meade, 942 S.W.2d
561, 565 (Tenn. Crim. App. 1996).

At the trial, Ms. Howard testified that she was extremely upset by what had happened to her
daughter and that she purchased a shotgun from Benton Shooter Supply with the intent of killing the
defendant. Although a jury may have inferred that the shotgun was purchased the day after the
incident, Ms. Howard never expressly stated that she bought the shotgun on that day. In connection
with his motion for new trial, the defendant submitted an affidavit from his trial attorney declaring

18
that he did not investigate before the trial the Howards’ purchase of a shotgun. The trial attorney
stated that he did not investigate the purchase because he had no knowledge that a shotgun had been
purchased in connection with the defendant’s case and had no reason to anticipate that Ms. Howard
would testify that she purchased a shotgun for the purpose of killing the defendant.

The defendant also submitted an affidavit from a court-appointed private investigator stating
that the investigator had no knowledge of the purchase of the shotgun and had no reason to know a
gun had been purchased in connection with the defendant’s case. After the trial was over, the
investigator retained a copy of the ATF Firearms Transaction Record from Benton Shooter Supply,
which reflected that Mr. Howard purchased a shotgun on December 3, 2002. The defendant also
submitted an affidavit declaring he had no personal knowledge that the Howards had purchased a
shotgun for the purpose of killing him. Testimony at the hearing on the motion for new trial
established that Benton Shooter Supply was not open on Sundays and therefore could not have been
open on December 1, 2002, the day after the incident.

As evident by its denial of the motion for new trial, the trial court did not find the newly
discovered evidence “so crucial to [the defendant's] guilt or innocence” that admitting the evidence
would have resulted in the defendant being acquitted. See Singleton, 853 S.W.2d at 496. We cannot
conclude that the trial court abused its discretion. The defendant is not entitled to relief on this issue.

V. STEPHANIE HOWARD’S TESTIMONY

The defendant asserts that the trial court erred in admitting impermissible character evidence
and hearsay testimony by Stephanie Howard. He argues (1) that Ms. Howard should not have been
allowed to testify regarding the other witnesses’ reactions to the incident, and (2) that Ms. Howard
should not have been allowed to testify regarding an argument that the defendant had with his wife
the day after the incident. He contends that the testimony was introduced for the purpose of showing
that the defendant’s wife believed he was capable of child sexual abuse. He argues that the testimony
was impermissible character evidence under Rule 404(a) of the Tennessee Rules of Evidence. He
contends that the court improperly admitted the evidence under the excited utterance exception to the
hearsay rule. See Tenn. R. Evid. 803(2). He also contends that the testimony was highly prejudicial
and should have been excluded because it was irrelevant to the question of whether the defendant
committed the crime. See Tenn. R. Evid. 403.

The state contends the trial court properly allowed Ms. Howard to testify about the defendant’s
wife’s reaction to hearing that the defendant had molested the victim. The state argues that the
statements by Ms. Howard were not hearsay but that they would have been admissible under the
excited utterance exception to the hearsay rule. The state also contends that Ms. Howard could testify
about the fight between the defendant and his wife because Ms. Howard’s testimony about what she
observed was neither character evidence nor hearsay.

The defendant cites the following portions of the record in support of his argument.

19
[MS. HOWARD]: I said, “What are you doing to my
daughter?” again. He, [said] “Nothing,
nothing.” And I just asked [the victim],
I said, “[victim], why were your pants
down?” And she said, “He told me to
pull them down.” And I said, “Well,
why did he tell you to pull them down,
what did he do? What is he doing to
you?” And she said, “He licked my
fanny.”

[PROSECUTOR]: Now, is everybody else in the house
still in the other room at that point?

[MS. HOWARD]: At that point they’re running from the
kitchen to see what’s going on in the
living room.

[PROSECUTOR]: Okay. So there was enough raised
level in the voices that they became
aware something was happening in the
living room?

[MS. HOWARD]: Yes.

[PROSECUTOR]: So who all came into the living room at
that point?

[MS. HOWARD]: Everybody. Noah came from his
closed door in the bedroom, he’d been
getting dressed, he came from in there.
Diane and Geoff came from the
kitchen. And they were all, everybody
was just stunned, I mean nobody --

[PROSECUTOR]: Okay. Did anybody ask you what was
going on?

[MS. HOWARD]: Yeah, Diane said, “What’s going on?”
You know, what was going on in here.
And I told her what [the victim] had
just said.

20
[PROSECUTOR]: And was Geoff present at that point
when you were telling her what you
had seen and what had just been said?

[MS. HOWARD]: Yes.

[PROSECUTOR]: And so tell me about the reactions of
the different people, just one at a time,
whether you want to start with Geoff or
Diane, tell me how each of them
reacted when they heard this.

[DEFENSE COUNSEL]: Your Honor, objection. They would be
the best witness to be called and told
about how they reacted and what they
said.

[PROSECUTOR]: Well, actually, Your Honor, I’m asking
her to describe what was occurring in
the living room at this point. Not
necessarily what was said, but were
people calm, were they upset, what’s
happening, how people are reacting.

THE COURT: All right. I’ll overrule it, I’ll allow it.
Proceed.

[PROSECUTOR]: Go ahead.

[MS. HOWARD]: My husband was just kind of stunned.
I mean if you’ve ever heard anybody
say that they had the deer in the
headlights look, that was my husband,
he just was, he was mortified. He was
stunned, he was shocked, he was
scared. He was just standing there. I
mean, you know, he was scared.

[PROSECUTOR]: And how was Diane reacting?

[MS. HOWARD]: At first, she was very inquisitive to [the
victim] and to myself and to Kevin.

21
[PROSECUTOR]: So she was asking the two of you
questions?

[MS. HOWARD]: She didn’t say what did you do. “Why
did you do that to her,” is what she said
to Kevin.

[DEFENSE COUNSEL]: Your Honor, again, I’m going to object
to what she said.

[PROSECUTOR]: All right. Sorry , we’ll move on from
that.

THE COURT: All right. Sustain objection.

[PROSECUTOR]: Geoff is just sort of starring, stunned,
and Diane starts asking questions of
everybody, is what’s happening[.]

[MS. HOWARD]: Yes, ma’am.

[PROSECUTOR]: And what’s Noah doing?

[MS. HOWARD]: He’s just standing there. He can’t
believe it either, but -- he does believe
it, but he’s just standing there like --

[DEFENSE COUNSEL]: Your Honor, objection.

THE COURT: Sustain.

[MS. HOWARD]: – he couldn’t believe it was happening
in the house.

[PROSECUTOR]: Okay. And what is [the victim] doing
when this is going on?

[MS. HOWARD]: [The victim] had to go to the bathroom
immediately.

[PROSECUTOR]: Okay.

[MS. HOWARD]: She had to go to the restroom.

22
[PROSECUTOR]: So did someone take her to the
restroom?

[MS. HOWARD]: Yes.

[PROSECUTOR]: Who took her to the restroom?

[MS. HOWARD]: I led her to the restroom, and it was just
right off from the living room area
where we were. So I let her go in there
and I closed the door and I stood
outside the door and waited for her to
finish, and then she was just in there for
a second and came back out.

[PROSECUTOR]: And so, now, during all of this going
on, does the defendant ever say
anything?

[MS. HOWARD]: Not really. Only, “I didn’t do it, I
didn’t do it.”

[DEFENSE COUNSEL]: Your Honor, may I object? Again,
she’s testifying to what he said, and
that’s going to be hearsay, and he’s
going to testify.

[PROSECUTOR]: No, its’s not, Your Honor.

THE COURT: Okay. She can testify as to what he
said. I’ll overrule that objection.

[PROSECUTOR]: All right. If you will continue, what
was the defendant saying?

[MS. HOWARD]: He was saying, “I didn’t do it, I didn’t
do it,” with my four-year-old daughter
standing right there in his face saying,
“Yes, he did, yes, he did.”

[PROSECUTOR]: And did he try to offer any explanation
at any point about what was
happening?

23
[MS. HOWARD]: He did.

[PROSECUTOR]: And what did he say?

[MS. HOWARD]: His first immediate response was, “I
didn’t lick her fanny, I licked her belly,
I licked her belly.” And at that point I,
you know, why is he licking my four-
year-old baby, period.

[PROSECUTOR]: Okay. So did you guys stay there much
longer after this?

[MS. HOWARD]: No.

[PROSECUTOR]: What did you do?

[MS. HOWARD]: I grabbed up my baby and my husband
before my husband grabbed a hold of
him and we got out of there. I was just
mortified. I didn’t know what to do,
what to say. I mean I knew this had
happened, because my four-year-old
daughter could not have made that up.
She had no knowledge of that type of
thing at all.

....

[MS. HOWARD]: When [the defendant] came back, he
came into the living room and he sat
down and he started trying to say that
he didn’t do this, he didn’t do that.
And then he and Diane got into an
argument about it, right in front of both
of us, and she started asking him about
other things.

[DEFENSE COUNSEL]: Your Honor, Your Honor?

[PROSECUTOR]: Okay. So did they end up getting into
a fight?

24
THE COURT: Wait a minute. [The prosecutor],
there’s an objection.

[PROSECUTOR]: Oh, I’m sorry.

[DEFENSE COUNSEL]: May we approach, Your Honor?

THE COURT: You may, yes.

(Thereupon, the following bench conference was had out of hearing of
jury:)

[DEFENSE COUNSEL]: I’m not sure what the total legal
objection is, Your Honor, but she’s
getting into a lot of things that’s going
to–may get into them arguing. And,
also, she’s saying what everybody else
is saying. Let them testify as to
hearsay.

[PROSECUTOR]: If I could respond, Your Honor. First
of all, I’m the one who’s been very
careful to avoid the pornography.

[DEFENSE COUNSEL]: You have. She has.

[PROSECUTOR]: All my witnesses are aware and my
questions are tailored. I’m not going to
be opening the door. Second of all, I
am very clear they can’t testify to what
anybody else said but the defendant,
and I am trying to keep her on track on
just the defendant’s comments, okay?
But the defendant and his wife did get
into a fight and there were things the
defendant said, okay? And I’m not
sure if [defense counsel] is clear, but
the defendant’s statements are not
hearsay.

THE COURT: Yeah, they are statements of an adverse
party, so they can, it is admissible.

25
 [DEFENSE COUNSEL]: I wasn’t aware of that.

THE COURT: Go ahead and proceed. She does
appear to be trying to avoid the hearsay.

[PROSECUTOR]: All my witnesses are aware to stay
away from the pornography, and I’m
trying to keep her on track.

[DEFENSE COUNSEL]: Well, good luck.

[PROSECUTOR]: You know, she has a right to be upset.

(Thereupon, the bench conference was concluded.)

The defendant objected to various parts of Ms. Howard’s testimony on the grounds that the
statements were hearsay. The trial court properly ruled on those objections. The defendant did not
object to the evidence as unfairly prejudicial or as impermissible character evidence. The
admissibility of evidence under Rule 403 of the Tennessee Rules of Evidence is a matter within the
trial court’s discretion and will not be reversed on appeal absent an abuse of that discretion. State v.
Dubose, 953 S.W.2d 648, 652 (Tenn. 1997); see also Tenn. R. Evid. 403 (“Although relevant,
evidence may be excluded if its probative value is substantially outweighed by the danger of unfair
prejudice . . . .”). Hearsay is not admissible unless an exception to the hearsay rule applies. Tenn.
R. Evid. 802.

We also note that the defendant did not refer to excited utterance as grounds for admitting the
testimony as an exception to the rule against hearsay. In order to preserve an issue for appeal, the
defendant must object contemporaneously and identify the reason for his objection. See Tenn. R.
Evid. 103(a)(1) (providing that timely objection for purposes of preserving the issue for appeal must
state “the specific ground of objection if the specific ground was not apparent from the context”). We
have previously held:

The purpose of Rule 103(a)(1) is to enable meaningful
appellate review of a trial court’s evidentiary rulings. According to the
rule, the objecting party has the burden of placing on the record the
reasons for an objection. Tenn. R. Evid. 103(a)(1)&(2). While the
rule provides different requirements for situations in which the
evidence is excluded or admitted, in both instances, the objecting party
has the duty to state the specific basis for the objection.

State v. Dale L. Courtney, No. 03C01-9406-CR-00195, Greene County, slip op. at 5 (Tenn. Crim.
App. Apr. 11, 1995).

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This court further held that:

Good trial practice and the Rules of Evidence demand that
counsel state the basis for an objection when the objection is made and
that opposing counsel be given the opportunity to respond. Not only
does this “make the record” for appellate review, but it encourages
adequate preparation on the part of counsel so that meaningful
objections and responses may be made. Trial judges should encourage
the practice.

Id. slip op. at 6.

The failure to identify the grounds for the objection in this case constitutes waiver. See
T.R.A.P. 36(a), Advisory Commission Comments (“The last sentence of this rule is a statement of
the accepted principle that a party is not entitled to relief if the party invited error, waived an error,
or failed to take whatever steps were reasonably available to cure an error.”); see also State v. Smith,
24 S.W.3d 274, 279-80 (Tenn. 2000); Hill v. State, 513 S.W.2d 142, 143 (Tenn. Crim. App. 1974)
(stating that to allow evidentiary questions to be raised at anytime would “undercut the very function
of the trial process, for it would become a tactical matter of defense to allow a bit of constitutionally
inadmissable evidence into the record, in the hope for an acquittal but secure in the knowledge that
a new trial would result”). Accordingly, the defendant is not entitled to relief on this issue.

CONCLUSION

Based upon the foregoing and the record as a whole, we reverse the judgment of the trial court
and remand the case for a new trial consistent with this opinion.

___________________________________
JOSEPH M. TIPTON, JUDGE

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