State v. Hodge

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED
OCTOBER SESSION, 1997 May 26, 1998

Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9704-CC-00160
)
Appellee, )
)
) SEVIER COUNTY
VS. )
) HON . BEN W. HO OPE R, II
KEITH E. HODGE, ) JUDGE
)
Appe llant. ) (Direct Appeal - Aggravated Rape and
) Aggr avate d Se xua l Bat tery)

FOR THE APPELLANT: FOR THE APPELLEE:

CHARLES I. POOLE JOHN KNOX WALKUP
133 Commerce Street Attorney General and Reporter
Sevierville, TN 37862
MARVIN E. CLEMENTS, JR.
Assistant Attorney General
425 Fifth Avenu e North
Nashville, TN 37243

AL SCHMUTZER, JR.
District Attorney General

STEVEN R. HAWKINS
Sevier County Courthouse
Sevierville, TN 37862

OPINION FILED ________________________

REVERSED AND REMANDED

JERRY L. SMITH, JUDGE
 OPINION

On Augus t 20, 1996 a Sevier C ounty jury c onvicted Appella nt, Keith

Hodge, of nine co unts of aggravated rape and two counts of aggravated sexual

battery. After a sentencing hearing, the trial court sen tenced Appella nt to twenty

years imprisonment for each aggravated rape conviction and ten years

imprisonment for each aggravated sexual battery conviction. Three of the twenty

year senten ces we re to be served consecutively, all other sentences were to be

served concurrently, for an aggregate sentence of sixty years to be served as a

Range I stand ard offe nder. A fter the tr ial court denied Ap pellant’s motion for a

new trial, Appellant filed this appeal, challenging the judgment of the trial cou rt.

In this appeal, Ap pellant presen ts several issues for re view, specifically:

1) wheth er the tr ial cou rt erred in failing to advise the jury th at the Sta te
had mad e an e lection of whic h alleg ation of sexual abus e it wou ld rely
upon in its proof for each of the several charges set out in the ind ictmen t;
2) whether the trial court committed reversible error by failing to advise the
jury that they must reach a unanimous verdict as to one particular incident
for each of the cou nts set forth in the indictm ent;
3) whether the trial court erred in permitting the introduction of evidence
of uncharged illegal sexual contact prior to the time period alleged in the
indictment between Appellant and the victim in this case, Tina Helton
Mullinex;
4) whether the State’s closing argum ent wh ich con tained the “m issing
witness argument,” references to uncharged criminal conduct, and the
prosecutor’s p ersonal beliefs an d opinions co nstituted reversible error;
5) whether the trial court erred in permitting the introduction of the victim’s
prior consistent statements; and,
6) whether the trial court erred at the sentencing hearing in permitting the
testimony of three women who testified Appellant had abused each of
them.

After a careful review of the record, we must reverse the judgment of the

trial cou rt and re man d this ca se for a new tria l.

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 FACTS

Appellant and the victim, Tina Helton Mullinex, had a len gthy history before

the prosecution of this case. Appellant was married to Ms. Mullinex’s aunt, and

had three children with her: Linda, Michael, and Teresa. T eresa and Tina were

very close frien ds, a relationship that was shaped in p art by the fact Teresa was

disabled. Tere sa wa s born with a condition which caused h er bones to b e very

brittle and to break easily. Because of this condition, she was confined to a

whee lchair and needed constant care. Ms. Mullinex spent every summer from the

time she was five years old until she was twelve with Appellant’s family, visiting

her cou sin Tere sa.

According to the State’s theory, Appellant began abusing Ms. Mullinex

when she was five or six years old, touching her breasts and kissing her. Ms.

Mullinex related that in 1982 or 1983 when she was 5 or 6, Appellant forced her

to watch a pornographic movie entitled “Dr. Storm” with him, during which he

forced her to to uch h im and he touched her. Ms. Mullinex testified that Appellant

abused her almost every day when she was in his ho me. S he rec alled s pecific

instances (though she wa s unab le to provide dates) when he abused her during

the summ ers of 1984, 1986, 1988, 1989 and during the Thanksgiving holiday of

1987.

One night in the summer of 1984, Ms. Mullinex was sleeping on a pallet on

the floor of Teresa’s room, when Appellant came into the room and laid down on

the pallet behind her. Appellant began kissing her; he pulled her clothing down

half-way and inserted his finger into her vagina. Ms. Mullinex testified that she

remembered that on this night, Teresa woke up and asked her father what he

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was doing and that Appellant replied that he was checking the air in Tere sa’s

wheelc hair tires. T eresa te stified that sh e did not re call such an incide nt.

Ms. Mulline x testified that du ring the sum mer o f 1985 , Appe llant wo uld

make her mee t him in the garage after everyone else in the house was asleep.

He would pull his pants half-way down and make her stimulate his penis, he

would then make her perform fellatio, instructing her to “lick back and forth on it.”

When he ejaculated, he would either put his semen on his stomach and make her

wipe it off or p ut it on her s tomac h and h e would wipe it off.

She also relate d that in the summ er of 198 6, Appe llant told her to come

into his bedroom. When she met him there, he took off her clothes and started

kissing her. They both performed oral sex on each other. In the summer of 1987,

the abuse co ntinued as be fore, only Appellant attempted intercourse with Ms.

Mullinex. She told App ellant that it hu rt, and he quit, thoug h a little o f his pe nis did

enter her vagin a. During Than ksgiving o f 1987, M s. Mullinex’s family cam e to

Appellant’s house to celebrate the holiday. Ms. Mullinex slept on the floor on a

pallet between the living room and the den with her cousin Lee Ann. After

everyone was in bed, Appellant laid down beside her and put his finger in her

vagina. Ms. Mullinex pinched Lee Ann until Lee Ann woke up and saw what was

happening.

In the summer of 1988, Appellant had a mattress in the garage where he

would meet Ms. M ullinex. H e pen etrated her with his fingers and his penis, and

made her pe rform fellatio. W hile this was happening the res t of the fa mily wa s in

the house, unaware of the events taking place in the garage. In the summer of

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1989, Appellant would meet Ms. Mullinex in the garage or the basement and

continue ab using her.

It was not until after the su mme r of 1989 that Ms. Mullinex informed an

adult about the abuse. Sometime in the fall of 1989, Ms. Mullinex told a counselor

at her scho ol, a Ms. C lemen s, abou t the abus e. No inve stigation was made

regardin g the com plaint.

I. ELECTION OF OFFENSES

In his first allegation of error, Appellant argues that the trial c ourt er red in

failing to inform the jury that the State had made an election as to which set of

facts it would use to support each count of the indictment. The trial court ruled

that the Sta te, throu gh its prese ntation of pro of, had m ade an election a s to

spec ific incidents of abuse upon w hich the ju ry would b e aske d to find Appellant

guilty of aggravated rape. W e disa gree. B ecau se ele ction in volves Appe llant’s

constitutional rights to protection against double jeopardy and to a unanimous

jury verdict, we will consider the issue of election under the doctrine of plain error

even though the issue was not presented on appea l. See State v. Leath, C.C.A.

No.01-C01-9511-CC-00393, Macon C ounty (Ten n. Crim. App., Nashville,

February 10 , 1998)(holding that error involving election is plain e rror).

The right to jury unanimity involves not only the requirement that the jury

be unanim ous as to which offense constitutes the crime for whic h a de fenda nt is

convicted, but also the right to unanimity among the jury members as to the

spec ific act which constituted the offens e. State v. Brown, 823 S.W.2d 576, 582

(Tenn. Crim. App. 1991). A trial court has the duty of requiring the State to elect

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the particular act upon which it relies for conviction and to instruct the jury so that

the verdict of ea ch juror w ill be united a s to one o ffense. Burlison v. State, 501

S.W.2d 801, 804 (Tenn. 1973). When the State presents proof on many offenses

within an alleged time period, but neglects election, the jury is allowed to “reach

into the brimming bag of offenses and pu ll out one fo r each co unt.” Leath, C.C.A.

NO.01-C01-9511-CC-00393 at 11 (citing Tidwell v. State, 922 S.W .2d 497 (Tenn.

1996)).

In the matter sub judice, in all but two of the counts, the State either drafted

the indictment to reflect a specific sexual act or presented proof regarding a

spec ific incident when the penetration was said to occur, thereby ensuring a

unanimous jury verdict. However in counts two and four of indictment 6401, which

alleged that Appellant “penetrated” Ms. Mullinex in the summers of 1985 and

1987, respectively, the Sta te failed to elec t, and p resen ted pro of only that m ultiple

incidences occurred during those summers. “A conviction that is not unanimous

as to the defendant’s specific illegal action is no more justifiable than a conviction

by a jury that is not unanimous on a specific count.” Leath, C.C.A. NO.01-C01-

9511-CC-00393 at 11 (citing State v. Brown, 823 S.W.2d 576, 583 (Tenn. Crim.

App. 1991) (quoting United States v. Beros, 833 F.2d 455, 462 (3d C ir. 1987))).

Therefore, we must re verse the judgm ent of the tria l court as to these two counts.

Counts two and four of indictment 5531 both allege:

[T]hat [the defendant] in the s umm er of 19 88 . . . did
unlaw fully and feloniously sexually penetrate . . . [the
victim] a child less that thirteen (13) years of age, by
inserting h is finger into h er vagina . . ..”

However, at trial the State presented proof of only one incident of digital

penetration during the summer of 1988. Although the proof is sufficie nt to su stain

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a single co unt with respect to this incident count four of indictment 5531 must be

reversed and dismissed for insufficient evidence. See, Tenn. R. App. P. 36

II. JURY INSTRUCTIONS ON ELECTION.

As noted earlier, App ellant compla ins that the trial court did no t adeq uately

instruct the jury as to the requirement of unanimity on a particula r set of facts

alleged to constitute the criminal act. Where the State presents evidence of

numerous offenses , the trial court m ust aug ment th e gene ral jury una nimity

instruction to insure th at the jury un derstan ds its duty to agree unanimously to a

particular set of facts. A skeletal jury instruction of unanimity ferments a strong

possibility of a com posite jury verd ict in violation of an appellant’s constitutional

rights. Id. at 12 (citing State v. Brown, 823 S.W .2d at 583 ; State v. Forbes, 918

S.W .2d 431, 447 (Tenn. Crim . App. 1995 )).

In all but counts two a nd four of indictm ent 6401, the S tate through its

presentation of proof elected a specific type of pene tration or inc ident so a s to

ensure a unanimous jury verdict. Therefore, the need to augment the skeletal

unanim ity instruc tion wa s not trig gered. However, it was error to fail to instruct

the jury in accordance with Leath, Brown and Forbes on counts two and four of

indictment 6401. This error also warrants a new trial with respect to those

charges.

III. PRIOR UNCHARGED ILLEGAL CONDUCT

In his next assignm ent of error, Appellant argues that the trial court erred

in allowing the State to present testimony regarding incidents between Appellant

and Ms. Mullinex which were outside the time frame of the indictment. The

earliest date set fo rth in the p resen tmen t again st App ellant is found in Count 1 of

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case no. 64 01 wh ich cha rges A ppella nt with the sexual penetration of Ms.

Mullinex Helton during “the summer of 1984.” However, the State’s first witness,

Tina Helton Mullinex, herself, began the trial recounting an incident which

occurred when she was “five or six”, in 1982 or 1983. She testified that Appellant

forced for to watc h a po rnogr aphic movie entitled “Dr. Storm” and “touched” her

and forced her to “touch” him. The defense made an objection that the incident

she related was outside the scope of the indictment and in violation of the motion

to disclos e unc harge d crim inal conduct and a motion in limine regarding

uncharged sexual conduct. The trial court nevertheless allowed the testimony into

evidence. The State also presented the testimony of Candy Lee Ann Buchanan,

who testified that Appe llant showed her a pornographic video with the same

content as the video Ms. Mullinex testified she was shown at the age of five.

In State v. Rickman, the Sup reme C ourt held that:

testimony of the victim abou t other prior unindicted sex
crimes allegedly committed by the defendant upon the
victim does not corrob orate th e testim ony of th e victim that
he or she suffere d the atta ck for w hich th e defe ndan t is
then being tried . Moreo ver, the prejudice resulting from
such testimony outweighs its probative value.

876 S.W.2d 824, 830 (Tenn. 1994). It is obvious, therefore, that testimony

conce rning the alleged sexual abuse of Ms. Mullinex committed before the

earliest date charged in the indictment was erroneously admitted into evidence.

The holding in Rickman does allow for a narrow exce ption w hich w ould

perm it evidence of unch arged crime s alleg edly committed within the time frame

of events d escribed in an ope n dated indictme nt. Id. at 829. However, Ms.

Buchanan’s testimony regarding the pornographic video she was allegedly shown

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in no way related to the time frame alleged in the indictment and was likewise

improperly admitted into evidence.

The State does not dispute the fact that the admission into evidence of the

testimony described above was error, but the State maintains that the error was

harmless. See Tenn. R. App. P. 36(b); Tenn . R. Crim. P. 52 (a). Because there

is subs tantial e videnc e of Ap pellan t’s guilt in this record, this error, standing

alone, would not warrant a reversal of the convic tions in this cas e. How ever, th is

error coupled with the prosecutor’s improper comments compels us, for the

reasons discussed infra., to afford Appellant a new trial on the remain ing coun ts

against him.

IV. PROSECUTION ARGUMENT

Appellant complains that the State improperly argued the “missing

witness” doctrine, referred to uncharged criminal activity outside the scope of the

indictme nt, and interjected personal beliefs and opinions. In State v. P hilpott, this

Court set ou t factors to be c onsid ered in mak ing the determ ination whether a

prose cutor's improper conduct could have affected the verdict to the prejudice of

the defendant. These factors are as follows:

1. the condu ct com plained o f in light of the fac ts and circumstances of the
case;

2. the curative measures undertaken;

3. the intent of the prosecutor in making the improper remarks;

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 4. the cumulative effect of the improper conduct and any other errors in the
record; and,

5. the relative strength or weak ness o f the case .

State v. Philpott, 882 S.W .2d 394, 408 (Tenn. Crim . App. 1994 )(citing Judge v.

State, 539 S.W .2d 340, 344 (Tenn. Crim . App. 1976 )).We co nsider each

allegation in turn.

A. MISSING WITNESS

Appe llant conte nds tha t the trial court im properly p ermitted the State to

argue the “m issing witnes s argu men t” during closing argum ent. It is w ell

settled that, “As a predicate for comment on a missing witness, the evidence

must s how tha t the witnes s had kn owledg e of ma terial facts, tha t a

relation ship e xists be tween the witn ess a nd the party th at wou ld natu rally

incline the witness to favor the party, and that the missing witness was

available to the proc ess of the Co urt for the trial.” Delk v. S tate, 590 S.W.2d

435, 440 (T enn. 1979 ).

In the matter sub judice, the witness to whom the State made repeated

reference was Peggy Ihsan, who was Appellant’s wife during the years listed

on the ind ictmen ts. During argum ent, whe n the Sta te first mad e referen ce to

Ms. Ihsan, Appellant objected and the trial court gave the following instruction

to the jury:

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 Ladies and gentleme n of the jury, these are
argum ents that you are hearing and have h eard. I w ill tell
you now, and will tell you again in a few minutes, this case
is decided solely on the evidence that comes from the
witness stand. Yo u will notice th at neither of these
attorneys have been sworn, and put on the witness stand.
What they are presenting to you is argument.

Don ’t let me take away from you the fact that
argument is desig ned to be he lpful to you. That’s the
reason we have it. Each side w ants to prese nt to you their
theory of the case. All I wan t you to remem ber is that
argument is not evidence, but it is certainly something that
you should consider in helping decide this case.

This in structio n did n ot add ress th e cen tral prob lem w ith the S tate’s

argument. In fact, after the instruction the prosecutor continued to imply that

Appellant’s failure to ca ll Ms. Ihsan was d ue to what he r testimony wo uld have

been. The prosecutor’s argument continued:

Ladies and gentlemen of the jury, I think you can see the
point with regard to that when Mr. Poole stands up and
calls witness after witness after witness that lived in that
house. All I’m a sking is why d idn’t he call the wife that
shared the bedro om w ith this defendant. I don’t know what
she would say, but why didn’t he call her, the one who
shared the bed room w ith this defen dant?

Becau se no p roof had been p resente d that Ms . Ihsan fell into the categ ory of a

missing witne ss, the State’s argu ment clearly co nstituted error.

Concluding that the remarks were in error, we must move to the issue of

harm to Appellant. Considering the Philpott factors one at a time, we begin by

considering the conduct complained of in light of the facts and circumstances

of the case. The prosecutor’s argument regarding the absence of Ms. Ihsan

was significant in light of the facts presented at trial. Ms. Mullinex testified that

much of Appellant’s illegal conduct occurred at night when the rest of the

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household assumed he was asleep in bed with his wife. The defense called

various household members to rebut this notion. The implication that Ms.

Ihsan w as not ca lled beca use sh e would have give n testimo ny adver se to

Appe llant was c lear.

Further, the cura tive measure s undertake n by the trial court were

cursory at best and did not stop the State’s reference to the failure of the

defens e to call Ms . Ihsan. T he cou rt’s instruction to the jury did nothing to

correct the improper argument, but rather highlighted for the jury that such

remarks could be considered in its deliberation.

The prosecutor in this matter clearly knew that his argument was

improper. He realized that no foundation for such an argument had been

made. Surely, in investigating the case during the preparation for trial, the

prosec utor learn ed that M s. Ihsan live d beyon d the jurisd iction of the c ourt.

Even if the State did not have actual knowledge of that fact, the district

attorney certainly was aware that he was required to put forth a showing of the

witness’ availability to the defense before such an argument could properly be

made. Further, the State waited until its final closing, an argument to which the

defense would not have the opportunity to answer, to spring this “missing

witness argument.” Such timing creates at least the appearance of an

intentio nal inte rjection of imp roper argum ent into the trial.

The c umula tive effect of this error mu st be reg arded in conjunc tion with

the other error discussed below in the analysis of Appellant’s issues

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concerning the argument of uncharged criminal conduct and the interjection of

the prosecutor’s personal beliefs and opinions.

B. UNCHARGED CRIMINAL CONDUCT

Appellant also complains that in closing argument the State made

repeated references to prior uncharged conduct outside the scope of the

indictment. Appellant failed to object at trial to the argument regarding the prior

uncha rged co nduct. Therefore, this issue ordinarily would be waived. Tenn.

R. App. P. 36(a). However, in light of our concern that improper argument

prevented Appellant from receiving a fair trial, we address this issue on the

merits. See Tenn. R. Crim. P. 52(b). Appellant specifically contends that the

State erre d in argu ing that:

Tina told you w ith regard to this indictm ent that in the
summer of ‘89 that he showed her a movie, a video.1 She
said the nam e of it was Doctor Sto rm, an d she said it
showed sexua l activity, an d the o ne thin g that s tuck o ut in
her mind, that little girl’s mind, is she said she
remembered a girl being nude, and on all fours on knees
and her hands, and man entering her from behind, and
there were some pearls -- I believe she said pearls -- that
the guy ha d in this girl’s mouth. That stuck out in her mind,
and she remembered that, and said Uncle Keith played
that for her.

As discussed earlier, Appellant objected early in the trial to the

introduction of evidence relating to events outside the time span of the

indictment. The trial court allowed the evidence mentioned in closing argument

into evidence over Appellant’s objection. Because we held that the admission

of this evidence was erroneous, we also hold that it was error to allow

1
Ms. Mullinex actually testified that Appellant showed her the pornographic movie when she was
“five or six” which would have been in 1982 or 1983.

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argument regarding this evidence. We must therefore consider the Philpott

factors in dec iding w hethe r this erro r affecte d the re sult of th e trial.

Although this argument by the prosecuting attorney, when taken in the

context of the State’s closing argument as a whole, appears to be an attempt

to recount the evidence presented at trial, the cumulative effect of this error

when viewed in light of the im prope r “miss ing witn ess a rgum ent” se ems fairly

serious. Not only was inadmissible evidence presented to the jury, the

prosecution compounded that error by presenting argument based on that

evidence. The combination of these two improper arguments may have served

to diver t the jury ’s atten tion from adm issible r eliable eviden ce to in adm issible

evidence and speculation.

No curative measures were undertaken by the trial court. This was

perhaps the result of the defense’s failure to object. However, in light of the

trial court’s erroneous admission of evidence regarding the video tape

incident, a ny objec tion by the d efense probab ly would h ave bee n overrule d.

The trial court did not instruct the jury that it should not consider this improper

argument, leaving the impression that this argument was a valid consideration

for the verd ict.

C. PROSECUTOR’S PERSONAL BELIEFS AND OPINIONS

Appellant also alleges that the State improperly interjected the District

Attorney’s personal opinions and feelings into the closing argument. Appellant

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objected twice to the State’s comments and his objections were sustained.

The question presented is whether the argument so tainted the trial that the

verdict cann ot be re lied up on. It is im poss ible to s ay bey ond a reaso nable

doubt th at it did not.

The p ortions of th e prose cutor’s arg umen t to which A ppellant o bjects

came at the end of the State’s initial closing argument: “I don’t know how

man y folks w ere in th e hou se wh en it ha ppen ed. I do n’t kno w if ever ytime little

Teresa was in the bedroom, but I know where Keith Hodge was. Tina told me

where he was when she was abused.” And again in the State’s final closing

argum ent:

I guarantee the City of Gatlinburg gives vacation days... I
believe my dad dy hung the mo on, W e ’ve had our
problems, but I love my daddy, and I would never believe
some thing like that about my daddy. But you know, the
last to know is your family, espec ially when you’re talking
about child sexual abu se. There’s p reachers been guilty of
this, there’s boy scout leaders that have been guilty of
this....W ell, I’ll tell you what’s not rational is child abuse.
You know, that doe sn’t m ake s ense , but I kn ow it
happens....She said, “Tina wen t into the restroom w ith
some boys and come out and said, ‘I gave him a blow
job.’” A twelve ye ar old girl. I think it reflected more on her
than it did little Tina for telling a story like that she took her
to a party like that, her two or thre e or four years olde r.”

Following Ap pellant’s objections, the trial court admon ished the jury

saying:

These are arguments that you are hearing and have
heard. I will tell you now, a nd will tell you again in a few
minutes, this case is decided solely on the evidence that
comes from the witness’ stand . You w ill notice that neither
of these attorneys have been sworn, and put on the
witness stand. W hat they are prese nting to you is
argum ent....A ll I want you to remember is that argum ent is

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not eviden ce, bu t it is certa inly something that you shou ld
consider in helping decide this case.

The law is clear on this point:

(T)he p rosecu tor is an ad vocate, a nd is entitled to
pursue his role with thoroughness and vigor. But, as
set ou t in Just ice So utherla nd’s cla ssic op inion in
Berger v. United States, 295 U.S . 78, 88, 55 S.Ct.
629, 633, 79 L.Ed. 1314 (1935), the prosecutor also
acts [as]:

...the representative not of
an ordinary party to a
controve rsy, but of a
sovereignty whose
obligation to govern
impartially is as compelling
as its obligation to govern at
all; and wh ose intere st,
therefore, in a criminal
prose cution is not th at it
shall win a case, but that
justice shall be done. As
such, he is in a peculiar and
very definite sense the
servant of the law, the two
fold aim of whic h is tha t guilt
shall not escape or
innocence suffer. He may
prosecute with earnestness
and vig or, inde ed he shou ld
do so. But, while he may
strike hard blows, he is not
at liberty to strike foul ones .
It is as mu ch his du ty to
refrain from improper
metho ds calcu lated to
produce a wrongful
conviction as it is to use
every legitim ate me ans to
bring a bout a just on e. It is
fair to say that the average
jury, in a greater or lesser
degree, has confidence that
these obligations, which so
plainly rest upon the
prosecuting attorney, will be
faithfully obse rved.

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 Consequently, improper
suggestions, insinuations,
and especially assertions of
personal knowledge are apt
to carry much weight
against the accused when
they should pro perly carry
none.

Judge v. State, 539 S.W .2d 340, 344 -45 (Tenn . Crim. App. 19 76).

The conduct of the prosecuting attorney went beyond the bounds of

proper argu ment. In light of the trust with w hich the jury views the a ttorneys

for the State, we cannot find that the impermissible comments did not

influence the jury’s verd ict.

In light of the cumulative effect of all the improper remarks made by the

prosecutor during closing argument, we cannot say that these errors did not

impermissibly infect Appellant’s trial with unfair prejudice. Therefore we find

Appellant must be afforded a new trial as to all charges against him.

V. INTRODUCTION OF PRIOR CONSISTENT STATEMENTS

Appellant complains that the trial court erred in admitting the testimony

of two sch ool officials to w hom M s. Mullinex re ported th e abus e by Ap pellant.

It is true that ordinarily prior consistent statement of a witness are not

admis sible to bo lster the witn ess’ cred ibility. State v. Braggs, 604 S.W.2d 883,

885 (Tenn. Crim. App. 1980). However, “prior consistent statements may be

admissible...to rehabilitate a witness when insinuations of recent fabrication

have be en ma de, or wh en delibe rate falseh ood ha s been implied. State v.

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Benton, 759 S.W.2d 427, 433 (Tenn. Crim. App. 1988). Before prior consistent

statements may be admissible, the witness’ testimony must have been

assailed or attacked to the extent that the witness’ testimony needs

rehabilitating . Benton, 759 S.W .2d at 434. In the m atter sub judice, during

cross-examination, the defense repeatedly asked Ms. Mullinex whether she

ever told anyone of the abuse and whether she told all the details she related

at trial to the people she told earlier. The testimony of Mr. Townsend and Ms.

Hughes was properly admitted to show that Tina Helton Mullinex did tell about

the abu se. This issue is with out me rit.

VI. EVIDENCE AT SENTENCING HEARING

Finally, Appellant contends that the trial court erred in receiving

testimony at the sentencing hearing regarding Appellant’s molestation of three

women other than Tina Helton Mullinex. Tennessee Code Annotated §

39-13-204 permits, at a sentencing hearing, evidence "as to any matter that

the court deems relevant to the punishment," including (but not limited to) "the

nature a nd circum stance s of the crim e." State v. Nich ols, 877 S.W.2d 722,

731 (T enn. 1 994). E videnc e is rela tive to the punis hme nt, and thus a dmis sible

at the sentencing hearing, only if it is relevant to an aggravating circumstance,

or to a m itigating facto r raised by the defen dant. State v. Bates, 804 S.W.2d

868 (Ten n. 1991)(citing State v. Cozzolino, 584 S.W.2d 765, 768 (Tenn.

1979)). The testimony of these witnesses was properly admitted to show that

Appe llant had a history of crim inal beha vior in additio n to that ne cessar y to

establish the appropriate range. Tenn. Code Ann. § 40-35-114(1). This issue

is without m erit.

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 Therefore, the judgment of the trial court is reversed and remanded for

a new trial on a ll coun ts exce pt cou nt four o f indictm ent 55 31 wh ich is

dismissed for the reasons stated hereinabove.

____________________________________
JERRY L. SMITH, JUDGE

CONCUR:

___________________________________
GARY R. WADE, PRESIDING JUDGE

___________________________________
DAVID H. WELLES, JUDGE

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