IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs August 16, 2005
STATE OF TENNESSEE v. ROBERT K. WARD
Direct Appeal from the Circuit Court for Sevier County
No. 9429 Rex Henry Ogle, Judge
No. E2004-01665-CCA-R3-CD - Filed December 29, 2005
The Defendant was convicted of aggravated rape, and the trial court sentenced him to sixty years,
as a Range III, persistent, violent offender. The Defendant appeals, contending that: (1) the trial
court erred when it denied his motion to suppress his written statement to the police; (2) the record
contains insufficient evidence to support his conviction; (3) the trial court improperly commented
upon the testimony of a witness; and (4) the trial court improperly sentenced him. After reviewing
the record and the applicable law, we conclude that there exists no reversible error. Accordingly,
we affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which THOMAS T. WOODALL, J.,
joined. JOSEPH M. TIPTON , J., delivered a separate concurring opinion.
James R. Hickman, Jr., Sevierville, Tennessee, for the Appellant, Robert K. Ward.
Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
Al C. Schmutzer Jr., District Attorney General; and Joseph A. Baker, Assistant District Attorney
General, for the Appellee, State of Tennessee.
Opinion
I. Facts
The following evidence was presented at the Defendant’s trial for the aggravated rape of
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L.B., the victim: L.B. testified that the Defendant is married to her sister, T. W., and that she baby-
sat for their son, N.W., quite often. On the day of this crime, but before it occurred, L.B. had taken
N.W. to the Defendant’s apartment after baby-sitting him. She said that, earlier, she had seen her
brother’s car and her friends, Susan and Marty, at the Defendant’s apartment. She said that she
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In order to protect the privacy of the victim and her family, we will use initials instead of names where
appropriate to do so.
walked with N.W. into the Defendant’s apartment while her son slept in the car. She testified that,
while she was inside the apartment, the Defendant approached her, put his arms around her, and
asked for a hug. She tried to push the Defendant away, and she said, “No leave me alone.” L. B.
testified that she started struggling, and the Defendant picked her up, and threw her onto his sofa,
where he continued to force himself on her while hitting her across the face and jerking at her
clothes. L.B. testified that N.W. watched these events while sitting at a nearby table.
L.B. said the Defendant forced her onto the ground while she struggled and fought to get
away. She testified that the Defendant got on top of her, kissed her, tried to take off her clothes, and
he clutched her throat while she screamed and struggled. She said that the Defendant let go of her
throat, but he continued to pull at her clothes and hair. At one point, she got up from the floor, but
the Defendant grabbed the back of her neck and forced her onto the ground. She testified the
Defendant forcefully pushed her into the ground, and she cut her arm while struggling against him.
She said that she tried to get N.W. to go for help, and N.W. came over and yelled at the Defendant.
L.B. said the Defendant grabbed her and tried to force her into the bedroom while she held
onto the doorway and tried to fight against him. She explained that the Defendant aggressively
picked her up and dragged her into the bedroom. When the Defendant got her into the bedroom, he
pushed her onto a small, unmade bed, pulled off her underwear, and pulled her to the edge of the
bed. She said the Defendant then penetrated her vagina with his mouth while she screamed, cried,
and begged him to stop. She said the Defendant penetrated her anus and her vagina with his fingers,
and then he stopped because he saw blood. She said she asked the Defendant to leave her alone.
L.B. said that she never consented to any sexual penetration by the Defendant. The Defendant then
brought her a towel, and he followed her as she went into the bathroom. L.B. said that she got
dressed, ran outside, and locked herself in the car. She said that the Defendant approached the
passenger’s side door and asked her not to call the police. L.B. testified that her brother then came
up to her car, she told him that the Defendant had raped her, and her brother called the police.
L.B. identified photographs that a police officer took of her after this incident occurred. She
said that the photographs showed that there were bruises on her face, an abrasion on her forehead,
her eyes and neck were swollen, her left arm was bleeding, and her upper lip was bleeding. She
testified that these photographs showed injuries she sustained from the Defendant, and they
accurately depicted her condition on the day of the incident. On cross-examination, L.B. testified
that she had not used any intoxicants on the day of the incident or before testifying at trial. She said
that she was presently taking an anti-depressant, Paxcil CR, as prescribed by her doctor.
Susan Hedrick, a friend of the Defendant’s wife, testified that she knew L.B. as T.W.’s sister.
Hedrick explained that she was better friends with T.W. than she was with L.B. Hedrick testified
that, on the day of the incident, she had been at the Defendant’s apartment, and she went for a walk
with her husband and L.B.’s brother. When she returned to the apartment, she saw L.B. sitting in
her car and the Defendant standing next to the vehicle. Hedrick said that L.B. was crying
hysterically, and, after L.B. explained what had happened, they called the police. On cross-
examination, Hedrick testified that she was on her walk for over an hour. She said that, when they
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found the victim at the Defendant’s apartment, the victim’s car door was closed, and the side
window was open about three inches.
M.H., the brother of L.B. and T.W., testified that when he saw his sister in her car, he walked
up to her, and she seemed distraught. The trial court asked M.H. to repeat himself, and M.H.
reiterated that his sister seemed distraught. He said he asked his sister what was wrong, and she told
him that the Defendant had raped her. No objections were made, but the trial court explained to the
jury, sua sponte, that M.H.’s testimony fell within the excited utterance exception to the hearsay rule.
M.H. said the Defendant was standing near the passenger’s side of his sister’s car when she said that
he had raped her. M.H. said he looked at his sister closely, and he noticed that she was swelling and
that some of her hair had been pulled out. He said that he then called the police, and they arrived
a few minutes later.
Officer Sam Hinson, a detective with the Sevierville Police Department, testified that he
received a call reporting that a rape had occurred. He said that he instructed a patrol officer to detain
the Defendant and to have the victim transported to the hospital emergency room. He said that he
went to the emergency room, obtained an oral statement from the victim, took photographs of the
victim, and had the hospital nurses perform a sexual assault evidence collection kit on the victim.
The officer testified that the photographs that he took of the victim contained images of substantial
bruising to her left eye and cheek bone, swelling on the left side of her face, an abrasion on her neck,
a laceration on her elbow, an abrasion on her left arm, a “busted” lip, and discoloration around her
eyes. Officer Hinson also described a photograph that he took while in the Defendant’s apartment.
He explained that the photograph showed “blood on the mattress that [was] smeared or wiped off.”
The photographs were admitted into evidence.
Officer Hinson testified that the results collected from the sexual assault evidence collection
kit included lachrymose, a component of saliva, found in vaginal swabs in the victim’s underwear
and that other DNA tests were inconclusive. The officer said that he did not know of any other
substance besides saliva in which lachrymose could be found. He explained that no tests were
performed on the bloodstained mattress, but he had “been on the job long enough to know blood”
and what it looked like. Officer Hinson testified that he could not prove how long the alleged blood
had been on the mattress.
Officer Hinson also testified that, after obtaining a statement from, and photographing L.B.,
he interviewed and obtained a statement from the Defendant. The following Statement, given by the
Defendant and typed by Officer Hinson, was admitted into evidence:
I have been advised of my Miranda Rights and this is a voluntary statement. It is
Sunday, February 24 and I am at the Sevierville Police Department. Earlier this
evening my sister in law, [L.B.], came to my apartment at 240 Hardin Lane to drop
off [N.W.], my son. I had taken some Valium and drank some Long Island Iced Tea.
I had also smoked two marijuana joints earlier. I was feeling pretty intoxicated. I
tried to talk to her but she would not listen. We got in an argument. We were both
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yelling and screaming. She raised her hand like she was going to hit me. I got mad
and smacked her. She fell down. When she was down she was kicking at me and I
smacked her with an open hand a couple of times. I just wanted her to listen to me
and quit screaming at me. I was upset. She got up to go in the bathroom and look
at her face. I was hollering at her but she wouldn’t listen to me. We were fighting
as we went into the bedroom. She smacked me and scratched me and I smacked her
back. Once we were in the bedroom I took her pants down. I asked her why she
didn’t like me like she said before. When her pants were down I asked her if I could
touch her and see how beautiful she was. She said she was on her period. I said
okay. She said this couldn’t happen because you’re my brother in law. I asked her
if I could taste her she laid back. I licked her vagina. At some point I fingered her,
I’m not sure when. She said I was hurting her and had hurt her face. I stopped and
realized what had happened. We got up together and went to the bathroom. I helped
her clean up. She got dressed and we talked in the bathroom for a couple of minutes.
She leaned on me and started crying. I said [L.B.], what have I done, I’m sorry.
Please forgive me. Then we walked out together and we talked in her car for a few
minutes. Then her brother walked up. I am still feeling a buzz. I am pretty high. I
do not know exactly what I’m doing at this point in time. I’m not sure I’m doing the
right thing here.
Before signing this statement, the Defendant wrote, “I am still not sure of what’s happening with all
this.”
T.W., the Defendant’s wife and L.B.’s sister testified that L.B. and the Defendant never liked
each other. She testified that, in the past, L.B. had asked the Defendant for favors such as helping
her move, and cleaning out her garage.
Based upon this evidence, the jury convicted the Defendant of aggravated rape.
II. Analysis
On appeal the Defendant contends that: (1) the trial court erred when it denied his motion to
suppress his written statement to the police; (2) the record contains insufficient evidence to support
his conviction; (3) the trial court improperly commented upon the testimony of a witness; and (4)
the trial court improperly sentenced him.
A. Motion to Suppress
The Defendant contends that the trial court erred when it denied his motion to suppress the
written statement that he gave to the police officers. The following evidence was presented at the
hearing on the Defendant’s motion to suppress: Jason Ballard, of the Sevierville Police Department,
who arrested the Defendant on the day of this crime, testified that the Defendant did not appear to
be intoxicated in any way because he did not stumble, have slurred speech, or have bloodshot eyes.
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On cross-examination, the officer testified that he did not recall the exact sequence of events that
occurred when he took the Defendant into custody or if he saw any liquor bottles in the apartment
where the crime took place.
Officer Sam Hinson testified that, after he moved the Defendant from a holding cell to the
officer’s office, he witnessed the Defendant sign an “Admonition and Waiver of Miranda Rights.”
The officer said that he explained to the Defendant every term that was set out in the waiver, and the
Defendant did not have any questions. Officer Hinson explained that he always told defendants that
they have a right to a lawyer and that they do not have to speak to the officer if they so choose. He
said that the Defendant made it very clear that the Defendant was aware of all his rights. Officer
Hinson said that, after he interviewed the Defendant for a period of time, the Defendant decided to
dictate a statement to him. He said that he spoke with the Defendant for a couple of hours before
typing the Defendant’s statement verbatim while the Defendant sat at his desk. Officer Hinson
testified that the Defendant described the events of the day at length and in detail. He said that the
Defendant did not appear to be intoxicated because he was rational and coherent, he never staggered
when walking, he did not slur his speech, and he did not have bloodshot eyes. The officer stated that
he was a graduate of the law enforcement academy where he was trained to detect if someone was
under the influence of intoxicants.
On cross-examination, Officer Hinson testified that the Defendant was initially taken into
custody at around 5:00 p.m., and he was placed in a holding cell while the officer obtained a
statement from the victim. The officer said that he then removed the Defendant from the holding
cell and took him to his office at around 7:40 p.m., where he immediately advised the Defendant of
his Miranda rights. Officer Hinson denied telling the Defendant that he would not talk to him if the
Defendant refused to sign the “Admonition and Waiver of Miranda Rights.” Officer Hinson did not
recall telling the Defendant how long the State would take to find an attorney for the Defendant.
Officer Hinson stated that he did not ask the Defendant if he was on any medication or under
the influence of any drugs because those questions did not seem pertinent. He said that, after the
Defendant said that he took Valium and drank alcohol earlier, he did not stop taking the statement
because the Defendant did not seem intoxicated, and hours had passed since the Defendant had used
any substances. Officer Hinson said that the Defendant had finished making the statement when the
Defendant said, “I’m still feeling a buzz, I’m pretty high.” After the Defendant said that, Hinson
allowed him to read over the statement. Officer Hinson testified that the Sevierville Police
Department did not have the technology to perform Breathalyzer tests and that, when the department
deals with alcohol related charges, the department uses an Intoximeter located at the sheriff’s
department or has blood work performed in the emergency room at the hospital.
The Defendant contends that the trial court erred when it denied his motion to suppress the
statement that he gave to the officers. Specifically, the Defendant alleges that his statement was not
freely given due to his intoxicated state. The Defendant alleges that the officers did not use the
procedural safeguards necessary to ensure that the Defendant’s privilege against self-incrimination
was secure. The Defendant further alleges that the officers were well aware of the Defendant’s
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intoxicated state of mind, but chose to ignore all indications that the he was not acting voluntarily,
knowingly, or intelligently. The State argues that the Defendant failed to show that he actually was
intoxicated when signing the statement, and he voluntarily gave the officers his statement.
The trial court denied the motion to suppress, stating:
The Court must find that based upon the uncontradicted testimony of the two
police officers who observed this [D]efendant, that he was properly Mirandized, he
signed the Miranda Rights advisement. He likewise signed a statement that had been
typed as per his instructions and he likewise made notations himself on that advice
of rights.
The Court finds that the statement in question was completely and totally
voluntary and will be admissible for all lawful purposes at the trial of this case.
The findings of fact made by the trial court at the hearing on a motion to suppress are binding
upon this Court unless the evidence contained in the record preponderates against them. State v.
Ross, 49 S.W.3d 833, 839 (Tenn. 2001). The trial court, as the trier of fact, is able to assess the
credibility of the witnesses, determine the weight and value to be afforded the evidence, and resolve
any conflicts in the evidence. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Where there is
material evidence in the record that supports the findings of fact of the trial court, we are required
to affirm that judgment. State v. Killebrew, 760 S.W.2d 228, 233 (Tenn. Crim. App. 1988). The
application of the law to the facts found by the trial court are questions of law that this court reviews
de novo. State v. Daniel, 12 S.W.3d 420, 423 (Tenn. 2000).
The Fifth Amendment to the United States Constitution provides that “[n]o person . . . shall
be compelled in any criminal case to be a witness against himself . . . .” U.S. Const. amend. V; see
also Malloy v. Hogan, 378 U.S. 1, 6 (1964) (holding that the Fifth Amendment’s protection against
compulsory self-incrimination is applicable to the states through the Fourteenth Amendment); State
v. Matthew Kirk McWhorter, No. M2003-01132-CCA-R3-CD, 2004 WL 1936389, at *41 (Tenn.
Crim. App., at Nashville, Aug. 30, 2004), no Tenn. R. App. P. 11 application filed. Under Article
1, section 9 of the Tennessee Constitution, “in all criminal prosecutions, the accused . . . shall not
be compelled to give evidence against himself.” Tenn. Const. art. I, § 9. “[T]he test of voluntariness
for confessions under Article 1, section 9 is broader and more protective of individual rights than
the test of voluntariness under the Fifth Amendment.” State v. Crump, 834 S.W.2d 265, 268 (Tenn.
1992).
Generally, one must affirmatively invoke these constitutional protections. State v. McCary,
119 S.W.3d 226, 250 (2003). An exception arises, however, when a government agent makes a
custodial interrogation. Id. Statements made during the course of a custodial police interrogation
are inadmissible at trial unless the State establishes that the defendant was advised of his right to
remain silent and his right to counsel and that the defendant then waived those rights. Miranda v.
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Arizona, 384 U.S. 436, 471-75 (1966); see also Dickerson v. United States, 530 U.S. 428, 444
(2000); State v. Holt, No. M2001-00945-CCA-MR- CD, 2002 WL 31465263, at *2 (Tenn. Crim.
App., at Nashville, Nov. 5, 2002) perm. app. denied (Tenn. Feb. 24, 2003). A defendant’s rights to
counsel and against self-incrimination may be waived as long as the waiver is made voluntarily,
knowingly, and intelligently. Miranda, 384 U.S. at 478; State v. Middlebrooks, 840 S.W.2d 317,
326 (Tenn. 1992).
Intoxication or mental unsoundness does not render a confession invalid if the evidence
shows that the confessor was capable of understanding and waiving his or her rights. State v. Bell,
690 S.W.2d 879, 882 (Tenn. Crim. App. 1985); State v. Green, 613 S.W.2d 229, 233 (Tenn. Crim.
App. 1980). If a defendant understands his or her rights and is capable of making a narrative of past
events, then the defendant’s use of alcohol does not prevent the admission of the statement. State
v. Michael Abernathy, No. 03C01-9111-CR-00372, 1992 WL 249575, at *6 (Tenn. Crim. App.,
Knoxville, Oct. 2, 1992), perm. app. denied (Tenn. Dec. 28, 1992). A statement should only be
suppressed when an accused’s faculties are so impaired that the confession cannot be considered the
“product of a free mind and a rational intellect.” Lowe v. State, 584 S.W.2d 239, 241 (Tenn. Crim.
App. 1979).
In the case under submission, we conclude that the evidence in the record does not
preponderate against the findings of the trial court. The Defendant failed to establish that his
statement cannot be considered the “product of a free mind and a rational intellect.” Although the
Defendant stated that he was “still feeling a buzz,” he recounted the events of the crime without
displaying any signs of intoxication. The Defendant stated that he “did not know what was
happening,” but, after he gave Officer Hinson the statement, he displayed the ability to read the
statement, sign it, and write additional language on the statement. None of the officers who
witnessed the Defendant’s behavior before or during the taking of his statement thought that the
Defendant seemed intoxicated. Officer Hinson went through the necessary procedural steps to
ensure that the Defendant understood his rights, reading him each right “line by line.” The
Defendant stated that he understood his rights and the consequences of waiving those rights. Thus,
the Defendant was properly advised of his rights, displayed the capacity to understand those rights,
and was not subject to coercion. The weight of the evidence does not preponderate against the trial
court’s determination that the Defendant’s statement was “completely and totally voluntary.”
Therefore, this Court will not disturb the trial court’s finding that the statement was admissible, and
the Defendant is not entitled to relief on this issue.
B. Sufficiency of the Evidence
The Defendant next contends that the evidence is insufficient to support his conviction for
aggravated rape “because his conviction was based solely upon the victim’s uncorroborated
testimony which was so unreliable and contradictory that it provided an unsafe basis for the verdict.”
The Defendant further claims that the State failed to prove beyond a reasonable doubt that he
sexually penetrated the victim. The State argues that the evidence is sufficient to support the jury’s
verdict. We agree with the State.
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When an accused challenges the sufficiency of the evidence, this Court’s standard of review
is whether, after considering the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Tenn.
R. App. P. 13(e); State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid, 91
S.W.3d 247, 276 (Tenn. 2002)). This rule applies to findings of guilt based upon direct evidence,
circumstantial evidence, or a combination of both direct and circumstantial evidence. State v.
Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999).
The determination of the weight and credibility of the testimony of witnesses and
reconciliation of conflicts in that testimony are entrusted exclusively to the trier of fact. State v.
Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim.
App. 1978); State v. Lon S. Walker, No. 01C01-9711-CR-00535, 1999 WL 219629, at *4 (Tenn.
Crim. App., at Nashville, Apr. 16, 1999), perm. app. denied (Tenn. Oct. 11, 1999). In determining
the sufficiency of the evidence, this Court does not re-weigh or reevaluate the evidence and may not
substitute its inferences for those drawn by the trier of fact from circumstantial evidence. State v.
Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978); Liakas v. State, 286 S.W.2d 856, 859 (Tenn. 1956).
Questions concerning the credibility of the witnesses, the weight and value of the evidence, and all
factual issues raised by the evidence are resolved by the trier of the fact. Liakas, 286 S.W.2d at 859.
This Court must afford the State 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.
Herrod, 754 S.W.2d 627, 632 (Tenn. Crim. App. 1988). It is well-settled law in Tennessee that “the
testimony of a victim, by itself, is sufficient to support a conviction.” State v. Strickland, 885
S.W.2d 85, 87 (Tenn. Crim. App. 1993); State v. Williams, 623 S.W.2d 118, 120 (Tenn. Crim. App.
1981). Because a verdict of guilt removes the presumption of innocence and replaces it with a
presumption of guilt, the accused has the burden in this court of illustrating why the evidence is
insufficient to support the verdict returned by the trier of fact. State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982).
Tennessee Code Annotated section 39-13-502(a) defines aggravated rape as: “[U]nlawful
sexual penetration of a victim by the defendant . . . accompanied by any of the following
circumstances: . . . (2) The defendant causes bodily injury to the victim . . . .” Tenn. Code Ann. §
39-13-502(a)(2) (2003). “‘Sexual penetration’ means sexual intercourse, cunnilingus, fellatio, anal
intercourse, or any other intrusion, however slight, of any part of a person’s body or of any object
into the genital or anal openings of the victim’s, the defendant’s, or any other person’s body, but
emission of semen is not required . . . .” Tenn. Code Ann. § 39-13-501(7) (2003).
After a review of the record, we conclude that the evidence, viewed in the light most
favorable to the state, supports the Defendant’s conviction for aggravated rape. The evidence
established that the Defendant both orally and digitally penetrated the victim. Further, it proved that
the Defendant hit the victim, pulled her hair, clutched her throat and dragged her along the floor.
As a result of the Defendant’s actions, the victim suffered from swollen eyes and neck, and a bloody
upper lip and arm. Accordingly, this evidence clearly shows that the Defendant physically attacked
the victim, penetrated the victim’s vagina and inflicted bodily injury upon the victim. We conclude
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that sufficient evidence was presented to support the jury’s verdict. The Defendant is not entitled
to relief on this issue.
C. Examination of Witness and Sua Sponte Jury Instruction
The Defendant next contends that he was denied due process of law and his right to a fair
trial when the trial court commented sua sponte on hearsay evidence and on the testimony of a State
witness. The State argues that the Defendant did not raise a contemporaneous objection to the jury
charge at trial and did not raise an appropriate objection in his motion for new trial. The State
further argues that the trial court did not engage in constitutionally impermissible judicial
commentary on the evidence when it requested the State’s witness to repeat an answer and then sua
sponte explained a hearsay rule to the jury. We agree with the State.
At trial, M.H. testified that his sister said that the Defendant had raped her, and the defense
made no objection to this testimony. The trial court then, sua sponte, instructed the jury as follows:
Excuse me just a minute. Normally ladies and gentlemen, the statement by his sister
is hearsay. There is an exception to that called an excited utterance. If a person – if,
under the evidence, you found a person who was still laboring under an event, and
that as a consequence of that event they were excited or otherwise distraught or
whatever, and makes some spontaneous statement, he may testify to that.
Certainly she has already testified to that, but it’s for you to determine the
truth of that, whether or not it was made, or the truth of it. That is your sole
discretion. But he can testify to that.
The Tennessee Supreme Court has noted that “propriety, scope, manner, and control of the
examination of witnesses is a matter within the discretion of the trial judge, which will not be
interfered with in the absence of an abuse thereof. A wide discretion in this matter is necessarily left
to the court.” Coffee v. State, 216 S.W.2d 702, 703 (Tenn. 1949). The Court explained that:
“[I]t is well established that in order to clarify matters which appear in doubt, or
which are not brought out by counsel or made clear by the witness and would
otherwise remain obscure, and to develop the facts fully when essential to the
administration of justice, the trial court, at any stage of the examination, may put
questions to the witness for the purpose of eliciting facts bearing on the issue; . . . .”
Id. at 702 (quoting 3 Wharton’s Criminal Evidence § 1264, at 2131-32 (11th ed. 1935).
However, the trial court “must be careful not to express any thought that might lead the jury to infer
the judge is in favor of or against the defendant in a criminal trial.” State v. Cazes, 875 S.W.2d 253,
260 (Tenn. 1994). In all cases the trial judge must be very careful not to give the jury any impression
9
as to his feelings or to make any statement which might reflect upon the weight or credibility of
evidence or which might sway the jury. State v. Shuttles, 767 S.W.2d 403, 407 (Tenn. 1989).
Hearsay evidence is generally inadmissible due to its unreliable nature. State v. Jimmy Lee
Jones, No. 01C01-9511-CR-00367, 1997 WL 59446, at *4 (Tenn. Crim. App., at Nashville, Feb. 12,
1997), perm. app. denied (Tenn. Jan. 5, 1998); see Tenn. R. Evid. 802. However, the reliability and
circumstantial guarantees of trustworthiness of particular non-testimonial statements have allowed
courts to make limited exceptions to the hearsay rule. See State v. Gomez, 163 S.W.3d 632, 641
(Tenn. 2005). One such exception is the “excited utterance” exception. An excited utterance is
defined as “[a] statement relating to a startling event or condition made while the declarant was
under the stress of excitement caused by the event or condition.” See Tenn. R. of Evid. 803(2).
It is not an abuse of discretion for the trial court to, sua sponte, “require that counsel avoid
compound questions, base his questions on facts in proof, limit hearsay testimony to allowable
exceptions, and permit the witness to finish an answer without interruption.” State v. Alberto Baretta
Estes, No. 02C01-9512-CC-00379, 1997 WL 119510, at *3 (Tenn. Crim. App., at Jackson, Mar.18,
1997), no Tenn. R. App. P. 11 application filed (citing Tenn. R. Evid. 611(a)).
Initially, we note that the appellant waived his right to raise this issue on appeal because he
failed to object to the instruction at trial. Walker, No. 01C01-9711-CR-00535, 1999 WL 219629,
at * 5 (Tenn. Crim. App., at Nashville, Apr. 16, 1999), perm. app. denied (Tenn. Oct. 11, 1999).
Notwithstanding waiver, we find that the Defendant’s arguments are without merit. After our review
of the record, we find no evidence of prejudice due to the trial court’s comment on hearsay and the
question posed to the State’s witness. The jury instruction was perfectly proper in light of the
hearsay testimony that was presented because the trial court correctly instructed the jury as to the
applicable law regarding excited utterances. The trial court acted within its discretion when it
ensured that the jury understood why the testimony was allowed as an exception to the hearsay rule.
Likewise, the trial court acted within its discretion when asking the State’s witness to repeat himself.
Nothing in the record indicates that the trial court’s question or comments caused the jury to infer
that the trial court judge was in favor of or against the Defendant. For the same reasons, we reject
the Defendant’s argument that the trial court committed plain error. See Tenn. R. Crim. P. 52(b).
Therefore, the Defendant is not entitled to relief on this issue.
D. Sentencing
The Defendant next contends that the trial court erred when it enhanced his sentence because:
(1) the State failed to give him the required ten-day notice before trial of its intent to seek sentencing
of the Defendant as a Range III, persistent offender; (2) the trial court considered enhancement
factors that were elements of the crime of aggravated rape or otherwise improper; and (3) that the
trial court’s application of enhancement factors to his sentence is inappropriate in light of Blakely
v. Washington, 542 U.S. 246 (2004). The State argues that it complied with the notice requirement,
that the trial court properly enhanced the Defendant’s sentence, and that the enhancement factors
10
were appropriate under Blakely.
At the sentencing hearing, the parties agreed that the Defendant was a Range III, persistent
offender. The Defendant conceded that the State had filed a motion to seek enhancement and that
he was being convicted of aggravated rape because bodily injury was inflicted upon the victim. After
considering the evidence presented at the sentencing hearing, the trial court found that:
The Defendant has a previous history of criminal convictions in addition to those
necessary to establish the appropriate range, which is, by agreement, Range 3. The
Court finds that the Defendant has a previous history of unwillingness to comply with
his conditions of release into the community. He has several violations of probation
on his record.
The Court notes in passing that this Defendant committed this act in the
presence of minor children. In fact, the victim in this case, I believe, was bringing
his child back home. . . .[H]ad brought them food and was bringing them back home,
to his home, and committed this act.
To be real candid with you, this is one of the most brutal rape cases that this
Court has heard; in its tenor, in the actions, in the dragging of the victim, and in the
presence of these children. The Court finds that there are no mitigating factors.
That this – and that based upon the enhancement factors that this Court has
found, from the totality of the circumstances of the facts in this case, the Court
hereby sentences this Defendant to the maximum term of 60 years.
When a defendant challenges the length, range, or manner of service of a sentence, this Court
conducts a de novo review with a presumption that the determinations made by the trial court are
correct. Tenn. Code Ann. § 40-35-401(d) (2003). A defendant who challenges his or her sentence
has the burden of proving the sentence imposed by the trial court is improper. State v. Ashby, 823
S.W.2d 166, 169 (Tenn. 1991). The presumption of correctness is conditioned upon the affirmative
showing in the record that the trial court considered the sentencing principles and all relevant facts
and circumstances. State v. Pettus, 986 S.W.2d 540, 543-44 (Tenn. 1999). When conducting de
novo review, this Court must consider: (1) the evidence, if any, received at the trial and sentencing
hearing; (2) the presentence report; (3) the principles of sentencing and arguments as to sentencing
alternatives; (4) the nature and characteristics of the criminal conduct involved; (5) any mitigating
or statutory enhancement factors; (6) any statement that the defendant made on his own behalf; and
(7) the potential for rehabilitation or treatment. Tenn. Code Ann. § 40-35-210 (2003); Ashby, 823
S.W.2d at 168; State v. Moss, 727 S.W.2d 229, 236-237 (Tenn. 1986). Because our review of the
record indicates that the trial court in the case under submission considered the sentencing principles
and all relevant facts and circumstances, we review its sentencing determinations de novo with a
presumption of correctness.
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Aggravated rape is a Class A felony. Tenn. Code Ann. § 39-13-502(b) (2003). The
sentencing range for a Range III, persistent offender convicted of a Class A felony is forty to sixty
years with the presumptive sentencing starting at the mid-point of fifty years. Tenn. Code Ann. §
40-35-112(c)(1). For the aggravated rape of L.B., the trial court sentenced the Defendant as a Range
III, persistent offender to sixty years of incarceration.
a. Notice of Intent to Seek Enhanced Punishment
The Defendant contends that the trial court erred by sentencing him as a Range III, persistent
offender because the State failed to provide sufficient notice of its intention to seek enhanced
punishment. The State submits that it complied with the notice requirement and that the defendant
acknowledged that he received the notice of intent to seek enhanced punishment. The Defendant
concedes that he did not raise this issue at trial.
In Tennessee, a criminal defendant has the right to receive notice when the State intends to
seek sentencing of a defendant as a multiple, persistent, or career offender. According to Tennessee
Code Annotated section 40-35-202(a) (2003):
If the district attorney general believes that a defendant should be sentenced as a
multiple, persistent or career offender, the district attorney general shall file a
statement thereof with the court and defense counsel not less than ten (10) days
before trial or acceptance of a guilty plea; provided, that notice may be waived by the
defendant in writing with the consent of the district attorney general and the court
accepting the plea.
If notice is filed late or is filed timely but is otherwise defective, the defendant must show
prejudice before the notice will be rendered ineffective. See, e.g., State v. Stephenson, 752 S.W.2d
80, 81 (Tenn. 1988); State v. Debro, 787 S.W.2d 932, 933-34 (Tenn. Crim. App. 1989). Notice of
intent to seek enhanced punishment given as to an offense charged in the original indictment is also
valid notice as to any superceding indictment for the same offense or offenses included in the
original indictment, but is not necessarily valid notice of intent to seek enhanced punishment for new
offenses charged in the superseding indictment. State v. Carter, 121 S.W.3d 579, 585 (Tenn. 2003).
The purposes of the notice requirement are satisfied when the defendant is not misled or surprised
by the State’s decision to seek enhanced sentencing. State v. Chase, 873 S.W.2d 7, 9 (Tenn. Crim.
App. 1993). The Supreme Court of Tennessee has held that:
In the absence of a motion for continuance . . . any objection to the delayed notice by
the State ordinarily should be deemed to have been waived. This result is especially
true . . . where the matter was not even raised in the trial court, at the sentencing
hearing or on the motion for new trial.
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State v. Stephenson, 752 S.W.2d 80, 81 (Tenn. 1988).
In Stephenson, the court also noted that the defendant’s failure to move for a continuance or a
postponement of the trial, as authorized under Tennessee Rule of Criminal Procedure 12.3(a),
indicated that the defendant had received effective notice. Id; Tenn. R. Crim. P. 12.3(a).
The Defendant conceded at his sentencing hearing that he had received notice of the State’s
intent to seek enhanced punishment and told the trial court “the State did file a notice of intent to
seek enhancement. That should be in the Court’s file. I have a copy if the Court would like to
borrow mine.” The Defendant failed to file a motion for continuance or postponement of the trial
and failed to raise the issue in his motion for new trial. We note that a party must take all actions
necessary to have an error corrected at the trial court. Tenn. R. App. P. 36(a).
Furthermore, the evidence in the record indicates that the Defendant had notice of the State’s
intent to seek enhanced punishment. The record shows that the Defendant was indicted for rape on
May 28, 2003, in Indictment number 8924. On January 21, 2004, the State filed a “Notice of Intent
to Seek Enhanced Punishment - Notice of Enhancing Factors.” The record on appeal shows that the
Defendant was sentenced in Indictment number 9429 on May 21, 2004, and that the trial court
dismissed Indictment number 8924 on May 21, 2004. Both indictments were pending at the time
of the Defendant’s trial. Unlike the defendant in Carter, the Defendant in this case was not charged
with a new, separate offense. The Defendant was originally indicted for the rape of L.B. and the
superceding indictment was for the aggravated rape of L.B. The identical dates of the offenses
charged and the circumstances of the offenses charged in both indictments sufficiently placed the
Defendant on notice that the State was seeking to enhance his sentence for the aggravated rape of
L.B., if the Defendant was convicted. Also, in the Defendant’s brief, he acknowledges that he
conceded to his status as a Range III, persistent offender prior to his sentencing hearing for the
conviction in Indictment number 9429. The Defendant explained that, in exchange for a nolle
prosequi on Indictment number 9497 for allegedly raping S.M. in jail, he agreed to concede that he
was a Range III, persistent offender for sentencing purposes in the case under submission. The
Defendant explains that a judgment reflecting this agreement was entered in on May 21, 2004.
Therefore, the Defendant had proper notice of the State’s intention to seek the sentencing of the
Defendant as a Range III, persistent offender. We find that the Defendant is not entitled to relief on
this issue.
b. Enhancement Factors
The Defendant contends that the trial court erred in applying enhancement factor (2), that the
defendant has a previous history of criminal convictions in addition to those necessary to establish
the appropriate range, and enhancement factor (9), that the defendant has a previous history of
unwillingness to comply with the conditions of a sentence involving the release in the community.
See Tenn. Code Ann. § 40-35-114(2) and (9) (2003). Specifically, the Defendant alleges that there
was no documentation produced to prove his convictions or charges for violation of probation and
no witnesses were called to prove the underlying facts to support the grounds for those charges. The
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State contends that the trial court properly applied these two enhancement factors and that the
sentence imposed by the trial court is justified. We agree with the State.
A trial court may rely on the contents of the presentence report where the report indicates that
it is based upon reliable sources or is otherwise accurate. State v. Richard Crossman, No. 01C01-
9311-CR-00394, 1994 WL 548712, at *6 (Tenn. Crim. App., at Nashville, Oct. 6, 1994), perm. app.
denied (Tenn. Jan. 3, 1995). In Crossman, this Court explained that “we do not believe that the
legislature contemplated that a trial court must exclude from the evidence or refuse to consider
information about prior convictions solely because it is only contained in a presentence report.” Id.
In the case under submission, the evidence in the record does not preponderate against the trial
court’s finding that enhancement factors (2) and (9) are applicable. The presentence report contains
reliable evidence of the Defendant’s prior convictions and probation violations. Nothing in the
record suggests that the information in the presentence report is inaccurate. Therefore, the Defendant
is not entitled to relief on this issue.
The Defendant also asserts the trial court erred when considering enhancement factor (7), the
Defendant’s commission of the crime was to gratify the desire for pleasure or excitement, and
enhancement factors (12) and (16), which address the Defendant’s infliction of bodily injury upon
the victim. Specifically, the Defendant asserts that these factors are elements of the offense charged
and cannot be considered for sentencing purposes. The Defendant also argues that use of
enhancement factor (5), that the Defendant treated the victim with exceptional cruelty during the
commission of the offense, was improper. However, a careful reading of the findings of the trial
court indicates to us that, while the trial court commented briefly about the circumstances of the
offense, it actually applied only enhancement factors (2) and (9). Based upon two enhancement
factors and finding no mitigating factors, the trial court enhanced the Defendant’s sentence from fifty
to sixty years.
Having conducted a de novo review of the record with a presumption that the trial court’s
determinations are correct, we find that the trial court properly sentenced the Defendant. Therefore,
the Defendant is not entitled to relief on this issue.
c. Blakely v. Washington
The Defendant contends that his sentence should be reduced to the statutory minimum
because the enhancement factors must be either admitted by the Defendant or found, beyond a
reasonable doubt, by a jury in light of Blakely v. Washington, 542 U.S. 246 (2004). In State v.
Gomez, the Tennessee Supreme Court concluded that Blakely does not apply to Tennessee’s
sentencing scheme because “the Tennessee Criminal Sentencing Reform Act does not authorize a
sentencing procedure which violated the Sixth Amendment right to jury trial.” Gomez, 163 S.W.3d
at 651 n.16. Thus, the Defendant is not entitled to relief on this issue.
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III. Conclusion
In accordance with the foregoing authorities and reasoning, we affirm the judgment of the
trial court.
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ROBERT W. WEDEMEYER, JUDGE
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