IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
SEPTEMBER 1998 SESSION
January 6, 1999
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
) C.C.A. NO. 03C01-9801-CC-00029
Appellee, )
) ANDERSON COUNTY
VS. )
) HON. JAMES B. SCOTT, JR.,
ROSCOE H. WOODS, ) JUDGE
)
Appellant. ) (Rape)
FOR THE APPELLANT: FOR THE APPELLEE:
JERRY SHATTUCK JOHN KNOX WALKUP
101 South Main St. Attorney General & Reporter
Clinton, TN 37716
TODD R. KELLEY
Asst. Attorney General
John Sevier Bldg.
425 Fifth Ave., North
Nashville, TN 37243-0493
JAMES N. RAMSEY
District Attorney General
JAN HICKS
Asst. District Attorney General
Rm. 127
Anderson County Courthouse
Clinton, TN 37716
OPINION FILED:____________________
AFFIRMED
JOHN H. PEAY,
Judge
OPINION
A jury convicted the defendant of three counts of raping his daughter.
Following a sentencing hearing, the defendant was sentenced to concurrent sentences
of eight years on counts one and two and ten years on count three. The defendant now
appeals, raising the following issues for review:
I. Whether the evidence is insufficient to support the jury’s verdict because
there was no evidence to corroborate the victim’s version of events and no
evidence that the victim told anyone of the abuse, which would corroborate
her credibility; and
II. Whether the trial court erred in failing to grant the defendant a new trial,
that is:
A. Whether the jury’s verdict is contrary to the weight of the
evidence;
B. Whether the trial court erred in allowing the victim to
testify she had told a friend about the rapes two years after
they occurred;
C. Whether the trial court erred in excluding the testimony of
Dr. Ira Lew, a psychiatrist who treated the victim, on the basis
of psychiatrist/patient privilege under T.C.A. § 24-1-207;
D. Whether the trial court erred in allowing the State to
impeach the credibility of defense witness Josh Woods, the
victim’s twin brother;
E. Whether the trial court erred in allowing the State to
impeach Josh Woods’ testimony through the rebuttal
testimony of Mark Jones;
F. Whether the trial court erred in allowing the State to
impeach the credibility of defense witness Paula Woods, the
victim’s stepmother;
G. Whether the trial court erred in not instructing the jury, as
the defense requested, to consider the fact that the victim
failed to report the rapes immediately after they occurred;
and
H. Whether the jury’s verdict was the result of passion,
prejudice, or caprice?
Finding no merit to the defendant’s arguments, we affirm.
2
In 1989, after the defendant divorced his first wife, he was awarded custody
of his two children, the victim J.W.1 and her twin brother Josh. In 1992, the defendant
remarried, and by May 1993, he, J.W., and Josh had moved into their new home with the
defendant’s new wife, Paula Woods, and her two daughters from a prior marriage. J.W.
testified that around midnight one evening in November 1993, the defendant asked her
to watch television with him downstairs. According to J.W., he eventually undressed her,
performed oral sex on her, and forced her to reciprocate. J.W. also testified that one
evening in the spring of 1994, the defendant woke her in her bedroom at night and told
her to come downstairs with him to watch television. According to J.W., he placed her
on the floor, and the two engaged in mutual oral sex. J.W. further testified that later that
spring, the defendant again woke her in her bedroom at night and touched her breasts,
stomach, and in between her legs. According to J.W., he then undressed her and
performed oral sex on her, but when he attempted to penetrate her, she pushed him off
of her.
J.W., who was thirteen years old at the time of these incidents, testified that
none of this contact was consensual. Over objection, she also testified she first told a
friend of these incidents approximately two years after they occurred. She then told her
friend’s mother, another friend, and her psychologist. In July 1996, she reported the
incidents to the authorities.
The defendant first argues that the evidence is insufficient to support the
jury’s verdict of guilt on three counts of rape because there was no evidence to
corroborate the victim’s version of events and no evidence that she told anyone of the
abuse soon after it occurred, which the defendant claims would corroborate her
1
Pursuant to the policy of this Court, the name of the minor victim will not be used.
3
credibility. The defendant was indicted for three counts of rape by sexually penetrating
his daughter by means of coercion, in violation of T.C.A. § 39-13-503(a)(1). The victim’s
testimony described three incidents during which the defendant performed oral sex on
her against her will and forced her to reciprocate. Contrary to the defendant’s argument,
neither the victim’s version of events nor her credibility needs to be corroborated in order
to be sufficient. Rather, it was the jury’s duty, and theirs alone, to weigh the victim’s
credibility and decide whether the events she described actually occurred. State v.
Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). The jury decided they did. The evidence
is sufficient to support that determination.
The remainder of the defendant’s arguments are not supported by citations
to authority.2 As such, the arguments are waived. Rules of the Court of Criminal
Appeals of Tennessee 10(b); State v. Killebrew, 760 S.W.2d 228, 231 (Tenn. Crim. App.
1988). Even so, we will address why each remaining issue lacks merit.
The defendant argues the trial court should have granted his motion for a
new trial, claiming the jury’s verdict was against the weight of the evidence because the
victim’s testimony and credibility were not corroborated. This issue is nothing but a
restatement of the defendant’s first argument, which we have already concluded lacks
merit.
Next, the defendant argues it was error to allow the victim to testify she had
told a friend about the rapes two years after they occurred because two years is “well
beyond any parameters established by any Tennessee case regarding fresh complaint.”
2
Throu ghout the rema inder of his argum ents, the d efenda nt does provide fo ur citations ---to
T.C.A . § 24-1-2 07; T.C .A. § 63-2 3-107; State v. Lew is, 803 S.W.2d 260 (Tenn. Crim. App. 1990); and
Sum erall v. State , 580 S.W.2d 794 (Tenn. Crim. App. 1978)---but these citations merely represent
general authority that does not specifically support the arguments he makes.
4
The State concedes error apparently on this basis, but argues it was harmless because
it did not affect the outcome of the trial.
As a general rule, evidence that an adult victim of a sexual crime
complained to a third party that the crime occurred is admissible under the fresh
complaint doctrine. See, e.g., State v. Kendricks, 891 S.W.2d 597 (Tenn. 1994). The
details of the complaint are generally not admissible, unless the adult victim’s credibility
has first been attacked. Id. at 606. In cases involving a child victim, however, neither the
fact the child victim complained to a third party nor the details of that complaint are
admissible into evidence under the fresh complaint doctrine. State v. Livingston, 907
S.W.2d 392, 395 (Tenn. 1995). This Court has held that the demarcation line between
“adult victim” and “child victim” is age thirteen. State v. Schaller, 975 S.W.2d 313, 320
(Tenn. Crim. App. 1997). But see State v. Robert J. Burton, Sr., No. 02C01-9507-CC-
00193, Weakley County (Tenn. Crim. App. filed June 10, 1996, at Knoxville)(treating a
thirteen-year-old victim of sexual abuse as a child rather than an adult and thus barring
fresh complaint evidence under Livingston).
Even assuming that it was erroneous to admit J.W.’s “fresh complaint”
testimony, the defendant is not entitled to a reversal. A review of the record reveals that
defense counsel first introduced evidence that J.W. had told a third party about the rapes.
On cross-examination of J.W.’s mother, defense counsel asked her whether the first time
she became aware of the incidents was when J.W. told her in July 1996. In questions
that followed, defense counsel reiterated that J.W. had told her mother about the
incidents. This questioning occurred prior to the testimony about which the defendant
now complains, i.e., J.W.’s testimony that she told a friend the defendant had raped her.
The defendant complains of evidence that J.W. told a third party, her friend, about the
5
rape incidents, but he invited that error by first eliciting similar testimony from another
third party, J.W.’s mother. Moreover, testimony that J.W. confided in a friend was merely
cumulative to the evidence defense counsel had already elicited from J.W.’s mother.
Because of this, J.W.’s testimony that she told her friend about the rapes did not affect
the result of the trial. Thus, any error in admitting this testimony was harmless and does
not warrant reversal. Tenn. R. Crim. P. 52(a); State v. James David Chatman, 01C01-
9501-CC-00024, Montgomery County (Tenn. Crim. App. filed March 25, 1996, at
Nashville)(harmless error where fresh complaint evidence was cumulative).
The defendant next argues that the trial court erred in excluding the
testimony of Dr. Ira Lew on the basis his testimony was privileged. Dr. Lew, a licensed
psychiatrist, had treated J.W. in April 1994 and had written an evaluation report on May
11, 1994. In April 1997, the State subpoenaed Dr. Lew to testify at trial and provided the
defense with a copy of Dr. Lew’s report. Less than a week prior to trial, the defendant
also subpoenaed Dr. Lew. The State did not call Dr. Lew as a witness, but when the
defendant attempted to call him, the State invoked, on J.W.’s behalf, her statutory
privilege to confidential communications with a psychiatrist. See T.C.A. § 24-1-207
(Supp. 1997).
Section 24-1-207 provides, in pertinent part:
(a) Communications between a patient and a licensed physician when
practicing as a psychiatrist in the course of and in connection with a
therapeutic counseling relationship regardless of whether the therapy is
individual, joint, or group, are privileged in proceedings before judicial and
quasi-judicial tribunals. Neither the psychiatrist nor any member of the staff
may testify or be compelled to testify as to such communications or
otherwise reveal them in such proceedings without consent of the patient
except:
(1) In proceedings in which the patient raises the issue of the
patient’s mental or emotional condition . . . .
6
Id. Here, the defendant claims J.W. put her mental and emotional condition at issue by
testifying she did not report the rape incidents immediately after they occurred because
she was embarrassed, ashamed, and afraid. We disagree. Feeling emotion in response
to a traumatic event does not equate with putting one’s mental or emotional condition at
issue. Thus, contrary to the defendant’s argument, J.W . did not waive her privilege under
§ 24-1-207(a)(1), and the trial court did not err in excluding Dr. Lew’s testimony on this
basis. Moreover, even if the trial court had erred, any error would have been harmless,
as the testimony the defendant sought to elicit from Dr. Lew---such as the fact J.W. had
used alcohol, had been depressed, and had had disciplinary problems with her father---
would have been cumulative to other evidence already presented to the jury. See Tenn.
R. Crim. P. 52(a) (only error that affects the result of the trial warrants reversal).
In the next two issues, the defendant argues the trial court erred in allowing
the State to impeach the credibility of defense witness Josh Woods, the victim’s twin
brother. On direct examination, Josh testified that the defendant disciplined J.W.
because she would not “follow through” with her school work. Josh also testified that
J.W. would confide in him, but she never complained to him that the defendant had
sexually abused her. On cross-examination, the State asked Josh whether in October
1995, he had told Mark Jones, a social worker with the Tennessee Department of Human
Services (now called “Department of Children’s Services”), that the defendant had hit him
in the head four times, retrieved a knife from the kitchen, and hit him again when Josh
asked him for a cigarette. Over defense objection, Josh testified he told Mr. Jones he
was hit only once. The State asked Josh whether he had told Mr. Jones on other
occasions that the defendant had said he wanted to “get rid of” Josh, had fired a gun in
the family’s home and threatened to kill Josh, had threatened to send Josh to a juvenile
delinquent facility, and had threatened to “beat [his] head in.” Josh denied telling Mr.
7
Jones these things. Instead, Josh testified he had a very good relationship with the
defendant and was not afraid the defendant would terminate their relationship if he
testified against him.
To further impeach Josh Woods’ testimony, the State called Mr. Jones.
Defense counsel attempted to invoke, on Josh’s behalf, a statutory privilege to
confidential communications between clients and certified master social workers. See
T.C.A. § 63-23-107 (1997). Because Mr. Jones told the trial court he was not a certified
master social worker, the trial court allowed Mr. Jones to testify. On the witness stand,
Mr. Jones confirmed that Josh had reported incidents of physical abuse by the defendant.
Mr. Jones also testified that on different occasions, Josh had reported that the defendant
said he wanted “to get rid of” Josh, had fired a gun from the house and threatened to kill
him, and had threatened to send Josh to a juvenile delinquent facility and “beat his head
in.” The trial court accompanied this testimony with two limiting instructions to the jury,
telling them that this evidence was not substantive evidence these events occurred, but
rather was for the sole purpose of impeaching Josh’s testimony and testing his credibility.
The defendant first takes issue with the trial court allowing the State to
cross-examine Josh about statements he made to Mr. Jones. He claims this evidence
was irrelevant because the incidents Josh reported occurred two years after the incidents
of rape and two years before trial. We disagree. “Bias is an important ground for
impeachment.” Tenn. R. Evid. 616 cmt. (citing Creeping Bear v. State, 113 Tenn. 322,
87 S.W. 653 (1905)). Evidence of bias is almost always relevant “because the jury, as
finder of fact and weigher of credibility, has historically been entitled to assess all
evidence which might bear on the accuracy and truth of a witness’ testimony.” United
States v. Abel, 469 U.S. 45, 52 (1984). Here, the State attempted to elicit testimony from
8
Josh that he was afraid of the defendant because the defendant had threatened and
abused him. Through this line of questioning, the State attempted to show that because
Josh was afraid of losing a relationship with the defendant, his testimony was biased in
the defendant’s favor. Even though Josh’s testimony on direct examination was of little
probative value, the State was entitled to cross-examine him in an attempt to show bias.
The line of questioning pursued by the State helped accomplish this purpose and was,
therefore, proper evidence of impeachment under Tenn. R. Evid. 616.
The defendant also argues that the trial court erred in allowing the State to
present the testimony of Mr. Jones to rebut Josh’s testimony. The defendant does not
dispute that bias may be proven by extrinsic evidence, as Tenn. R. Evid. 616 expressly
provides. Rather, the defendant argues that the statutory privilege provided for in T.C.A.
§ 63-23-107 “should apply for this social worker [Mr. Jones] as well as a