State v. Nelson

FILED
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE
September 9, 1998
APRIL 1998 SESSION
Cecil Crowson, Jr.
Appellate C ourt Clerk

STATE OF TENNESSEE, )
)
Appellee, ) C.C.A. No. 03C01-9706-CR-00197
)
vs. ) Hamilton County
)
RAY ANTHONY NELSON, ) Hon. Stephen M. Bevil, Judge
)
Appellant. ) (Second Degree Murder)
)

FOR THE APPELLANT: FOR THE APPELLEE:

ARDENA J. GARTH JOHN KNOX WALKUP
District Public Defender Attorney General & Reporter

DONNA ROBINSON MILLER (on appeal) ELLEN H. POLLACK
KARLA M. GOTHARD (at trial) Asst. Attorney General
Asst. District Public Defenders 425 Fifth Ave. N., 2d Floor
701 Cherry St., Ste. 300 Nashville, TN 37243-0493
Chattanooga, TN 37402
WILLIAM H. COX, III
District Attorney General

REBECCA A. STERN
BATES BRYAN
Asst. District Attorneys General
600 Market St., Ste. 310
Chattanooga, TN 37402

OPINION FILED:________________

AFFIRMED

CURWOOD WITT, JUDGE
 OPINION

The defendant, Ray Anthony Nelson, appeals his conviction of the

second degree murder of Ester L. Williams. 1 He received his conviction in the

Hamilton County Criminal Court at the conclusion of a trial by a jury of his peers.

In this direct appeal, he raises the following issues for our review:

1. Whether the evidence sufficiently supports his conviction.

2. Whether the trial court erred in admitting evidence of his prior
abuse of the victim.

3. Whether the trial court erred in allowing Sister Suzanne
Repasky to testify as an expert witness on domestic violence.

4. Whether his sentence of 25 years is excessive.

Following a review of the record and the briefs of the parties, we affirm the judgment

of the trial court.

The defendant and the victim were not married and lived together in

an apartment in a Chattanooga housing project. Their relationship of approximately

thirteen years was marred by domestic violence, which culminated with the victim's

death at the hands of the defendant in December 1994. Following the victim's

death, the defendant was indicted for first degree murder and ultimately convicted

of second degree murder. This appeal followed.

The state’s proof showed that the victim and the defendant lived

together for several years, part of the time in Ohio and part of the time in

Tennessee. The victim’s two adult daughters both testified to having witnessed

prior instances of the defendant’s physical abuse of the victim. A Chattanooga

mental health worker testified to a history of domestic violence in the victim’s and

the defendant’s home. A neighbor, Mack Smith, testified that he regularly heard

1
The victim's name is spelled inconsistently in the record. We use it as it
appears in the indictment.

2
noises from the victim’s and the defendant’s apartment that sounded like the

defendant beating the victim and that he heard screaming and crying every night

since the defendant’s arrival at the apartment. He testified the defendant was “an

awfully strong fellow.”

Sister Suzanne Repasky, a Catholic nun, testified that she works as

a counselor at the Battered Women Shelter in Akron, Ohio. Sister Repasky came

into contact with the victim through the shelter. When the victim came to the shelter

in October 1992, her face was scarred and bruised and she had trouble walking.

She told one of the counselors that she had been beaten with a pipe by her

boyfriend. Someone found her lying in a parking lot and took her to the hospital.

Hospital personnel referred the victim to the shelter. Sister Repasky testified that

the victim came back to the shelter on two occasions. When she left the last time,

she reported that she was going to Tennessee. A follow up call was made three

months later, and the victim's mother reported that the victim was doing well.

Sister Repasky testified that according to F.B.I. statistics, 50 percent

of women in relationships will be hit at least one time. Additionally, there is abuse

in 25 percent of American households. According to research in the field, 90 to 95

percent of abused individuals are women. Sister Repasky also said that it is

somewhat typical for abused women to make up reasons other than abuse for their

injuries. They are embarrassed, feel guilty and blame themselves for their plight.

When asked whether this proposition applied to abused men, as well, Sister

Repasky said that she did not have enough knowledge of abused men to say

whether they make up reasons for their injuries.

Detective Mike Mathis of the Chattanooga Police Department was

dispatched to the victim's home on December 21, 1994. He narrated a video of the

3
crime scene for the jury. He found no sign of forced entry. The victim's body was

in the bedroom in a chair. She was on top of some newspapers, which had no

blood on them. However, there was blood under the newspapers on the seat of the

chair. Detective Mathis admitted, however, that to his knowledge the "blood" was

never tested. The body was not very stiff, and Det. Mathis opined that it was in the

late stages of rigor mortis. Men's clothes with what appeared to be blood on them

were found lying on a closet floor. Additionally, a pillow, sheet, towel and washcloth

had a red substance on them. There was a clipboard on the dresser with notes

written to various individuals. Apparently, these notes were written to members of

the victim's and the defendant's families by the defendant to apologize for and/or

explain the victim's death. The notes were signed "Ray."

As a result of the investigation, the police suspected the defendant

and had an arrest warrant issued. Thereafter, Det. Mathis learned that the

defendant had turned himself in to authorities in Birmingham, Alabama. Detective

Mathis and Sgt. Jeff Francis interviewed the defendant in the Jefferson County,

Alabama jail on Friday, December 29, 1994.2 The defendant told the officers that

he came home from work on Monday evening3 and had an argument with the victim

because he wanted a dollar to buy some cigarettes. The defendant asked the

victim to get some money from relatives who owed her money so he could buy the

cigarettes. They went to see the relatives but were unsuccessful in getting any

money.

An argument ensued when they got home. There had been a lot of

arguing recently over money. The argument escalated to yelling and screaming.

2
This court judicially knows that December 29, 1994 was a Thursday.
3
This court judicially knows that the Monday prior to December 21, 1994
(the date on which the victim's body was discovered) was December 19.

4
During the argument, both the victim and the defendant claimed to have other love

interests. The victim started to pick up a television set to throw at the defendant,

but the defendant was able to get it away from the victim. The defendant snapped,

and a physical fight ensued, although the victim did not really fight back. The victim

was "meaner" than usual. Although the defendant had been able to control his

anger in the past, he was unable to do so on this occasion. He had the victim on

the floor next to the bed, and he was on top of her using his knee and placing it on

different parts of her torso. There was blood coming from her face, mouth and

nose. The defendant realized the victim was not able to breathe. He stopped the

assault and began to hold her. He said first he thought she was unconscious, and

later, he said he thought she was dead. The defendant implied to the officers that

he did not realize how seriously the victim was hurt until he saw her bleeding and

not breathing. In the statement, the defendant said he cleaned the victim's body

and took off her clothing. He placed the body in a recliner. He sat in the chair with

the body during the night and held it.

The next morning, the defendant decided to leave. He covered the

victim's body with blankets and placed newspapers under it. He started out on foot

in Chattanooga, and he eventually caught a ride with an elderly gentleman who

bought him a bus ticket to Birmingham. He stayed in shelters in Birmingham and

disposed of some clothing and his key to the victim's apartment.

The defendant told the officers that he had lived with the victim off and

on since 1982. Their relationship had been riddled with fights and problems. He

showed the officers scars from altercations in which the victim stabbed and cut him.

Nevertheless, the defendant claimed to have loved the victim and put up with this.

The defendant made it clear to the officers that he was the only one

5
involved in the victim's death. He cried at times during the interview and said he

never meant to kill her. He did not mention a "code word" the victim used which

indicated she was going to get a knife.

Doctor Frank King, the Hamilton County Medical Examiner, performed

an autopsy of the victim's body and determined that she died as a result of blood

loss and respiratory insufficiency from multiple blunt trauma injuries. These injuries

included contusions, abrasions, lacerations, internal hemorrhages and bone

fractures. Doctor King described the overall pattern as one of a beating. The

victim's body had signs of defensive injuries.

The contusions were well developed, which means that the victim may

have had a period of survival between the infliction of the injury and the time of

death. However, the development of the contusions could also result from

continuing hemorrhaging after death. Doctor King opined that a person could live

hours or even a day or so with these injuries, provided the individual had the will to

continue breathing and the body maintained blood pressure. He further opined that

the victim would have had "a good chance for recovery" if she had been taken to an

emergency room.

In his case-in-chief, the defendant took the stand. He testified that he

was 41 years old. He met the victim in 1981, and he began living with the victim

and her daughters that year. Their relationship became troubled a few years later

when the victim's daughters got older and left home. The defendant fought with the

victim about moral issues related to the victim's daughters and what they should be

allowed to do. He testified the victim suffered from phlebitis and had a history of

psychiatric problems. He admitted he had abused the victim but testified that they

were both violent at times. The trial court admitted photographs of between 17 and

6
30 scars which the defendant testified were the results of cutting and stabbing

injuries inflicted on him over time by the victim.

After the victim left Ohio the last time, the defendant remained in Ohio

for seven months but came to Chattanooga at the victim’s request to resume

cohabitation with her in July 1994. The couple argued frequently about the victim’s

irresponsible use of money.

On the day of the victim’s death, which the defendant testified was

December 19, she and the defendant argued about money owed the victim by her

family members. He told her he was going to leave her after the holiday. The victim

said she did not care because she had another boyfriend, and the defendant

responded that he had two girlfriends in Ohio and a house in which to put them.4

The argument escalated into a physical confrontation, with the victim moving to pick

up a television set. The defendant thought the victim was going to throw the

television at him, and he was able to take it away from her. The victim called the

defendant a name. The defendant claimed the victim used this name when she

was about to assault him with a knife. The victim started toward the direction of

kitchen, and the defendant thought she was going to get a knife. He grabbed her

from behind and began beating her. He claimed to remember hitting her two times,

then losing his memory till he looked in her eyes and saw that she was "gone." He

was sure she was dead. The defendant placed the victim in a chair. He held her

in his arms, rocked her, and talked to her all night. The defendant denied intending

to kill the victim when he hit her. He claimed to be very remorseful over her death.

The defendant went to Birmingham where he essentially lived on the streets and

slept at a shelter. He decided to turn himself in and went to a municipal building

4
Later in his testimony, the defendant claimed that he and the victim were
going to Ohio together in January to see his mother and to get married.

7
and talked to the authorities.

The defendant admitted that the victim had been in a battered

women's shelter in Ohio in the past. He also admitted he had probably hit her first

on at least one of those occasions when she wound up in the shelter. He admitted

he was in a position to get out of the bedroom when the victim reached for the

television set, but he did not leave. He denied ever hitting or raping the victim with

a metal pipe as reported in the victim's medical and shelter records. He claimed

any injury from the alleged rape with the pipe actually resulted from consensual sex

after a fight. He said no one from the shelter or hospital had ever talked to him

about these allegations.

The jury found the defendant not guilty of first degree murder, but it

found him guilty of the lesser offense of second degree murder.

Thereafter, the court conducted a sentencing hearing, at which the

victim's daughters testified they both were unable to work due to their distress over

their mother's murder. Both daughters had children who were scared and upset

since the victim's death. The defendant offered character references in letter form

from a fellow inmate, a childhood Sunday school teacher, two long-time friends, and

a widow for whom the defendant had done home repairs. Generally, these letters

attested to the defendant's uncharacteristic behavior in killing the victim, his

Christian background and his willingness to help others. The trial court found two

enhancement factors, (1) that the defendant had a previous history of criminal

convictions or criminal behavior, and (2) that he treated the victim with exceptional

cruelty during the offense. See Tenn. Code Ann. § 40-35-114(1), (5) (1997). The

court found no mitigating factors. Accordingly, it imposed a sentence of 25 years.

8
 I

In his first issue, the defendant attacks the sufficiency of the convicting

evidence. Essentially, he argues that he acted in self defense. When a defendant

challenges the sufficiency of the evidence, an appellate 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. Jackson v. Virginia, 443 U.S. 307, 324, 99 S. Ct.

2781, 2791-92 (1979); State v. Duncan, 698 S.W.2d 63, 67 (Tenn. 1985); Tenn. R.

App. P. 13(e). This rule is applicable to findings of guilt based upon direct evidence,

circumstantial evidence, or a combination of direct and circumstantial evidence.

State v. Dykes, 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990).

In determining the sufficiency of the evidence, this court should not

reweigh or reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779

(Tenn. Crim. App. 1990). Questions concerning the credibility of the witnesses, the

weight and value of the evidence, as well as all factual issues raised by the

evidence are resolved by the trier of fact. State v. Cabbage, 571 S.W.2d 832, 835

(Tenn. 1978). Nor may this court substitute its inferences for those drawn by the

trier of fact from the evidence. Liakas v. State, 199 Tenn. 298, 305, 286 S.W.2d

856,859 (1956); Farmer v. State, 574 S.W.2d 49, 51 (Tenn. Crim. App. 1978). On

the contrary, this court is required to afford the State of Tennessee the strongest

legitimate view of the evidence contained in the record as well as all reasonable and

legitimate inferences which may be drawn from the evidence. Cabbage, 571

S.W.2d at 835.

In pertinent part, second degree murder is "[a] knowing killing of

another." Tenn. Code Ann. § 39-13-210(a) (1997). The defendant freely admitted

that he and he alone killed the victim. Thus, we must determine whether there is

9
sufficient evidence that the defendant acted knowingly but not in self-defense.

In the light most favorable to the state, the evidence strongly supports

that the defendant acted knowingly. He engaged the victim in an argument that

escalated from words to physical force. Rather than walk away when he had the

chance, he stayed in the apartment and brutally assaulted the victim. He continued

the assault even though the victim was not really fighting back. It is apparent from

the number and severity of the injuries described by Dr. King that the assault was

violent and of some duration. The injuries included blows to the head and crushing-

type injuries to the chest. After the defendant incapacitated the victim, he failed to

summon medical assistance which might have saved her life.

With respect to the defendant's self-defense claim, we begin our

analysis by noting that self-defense is a general defense under the Criminal Code.

See Tenn. Code Ann. §§ 39-11-203(a), -601, -611 (1997). But see State v. Richard

Edward Brown, No. 01C01-9301-CC-00027, slip op. at 4 (Tenn. Crim. App.,

Nashville, Aug. 26, 1993) (characterizing self defense as an affirmative defense),

perm. app. denied (Tenn. 1993). When a general defense is "fairly raised," the

state must disprove its applicability beyond a reasonable doubt. Tenn. Code Ann.

§§ 39-11-203(c), (d), -201(a)(3) (1997); State v. Culp, 900 S.W.2d 707, 710 (Tenn.

Crim. App. 1994). Clearly, the jury found beyond a reasonable doubt that the state

had met its burden. See State v. Fugate, 776 S.W.2d 541, 545 (Tenn. Crim. App.

1988) ("Whether a homicide is excusable because done in defense of person

presents a classic question for jury determination.") (citations omitted). The record

strongly supports the jury's conclusion. The defendant testified that the victim did

not really fight back. The defendant was physically strong, and the victim had both

physical and mental frailties.

10
 In the light most favorable to the state, the proof fails to justify the

killing of the victim and supports a conviction of murder in the second degree.

II

In the second issue before the court, the defendant complains of the

trial court's admission of evidence during the state's case-in-chief of alleged prior

abuse the defendant inflicted on the victim. He generally attacks the evidence as

being far more prejudicial than probative. Second, he attacks the court's ruling

allowing the state to cross-examine him about his alleged vaginal and anal rape of

the victim with a metal pipe and further allowing the state to offer corroborative

medical and shelter records as rebuttal evidence. He claims this was a collateral

issue and its admission was violative of his right to due process. The state defends

admission of the alleged prior instances of non-sexual abuse during the state's

case-in-chief to show motive and intent. The state also argues that cross-examining

the defendant about the alleged rape was proper impeachment evidence to rebut

the defendant's claims of self-defense, lack of intent to harm the victim and mistake

or accident. Further, the state argues, even if the sexual assault evidence was

admitted in error, it was harmless error.

In the case at bar, the court conducted a hearing on the issue of

admissibility of the prior abuse evidence before the court seated the jury. The

proposed evidence took two forms. First, the state planned to offer testimony of the

victim's daughters and Sister Repasky. The daughters would testify about their

eyewitness observations of the defendant abusing the victim and the efforts the

daughters exerted to assist their mother in moving from Ohio to Chattanooga on

multiple occasions to get away from the defendant. Sister Repasky would testify

about her observations of the victim's injuries while the victim was at the women's

shelter. Second, the state proposed to offer the records from the victim's medical

11
treatment and women's shelter stays which contained the victim's hearsay

declarations about the defendant's abuse of her.

The defense specifically objected to the admission of two sets of

records from Akron (Ohio) General Medical Center and the Battered Women's

Shelter as proof that the defendant had abused the victim.5 The defense contended

the documentary evidence should not be admitted because (1) the defendant could

not cross-examine the declarant/victim, (2) the medical records reflect the victim's

statement that her assailant was "her boyfriend" without specifically naming the

defendant, although "Ray Nelson, boyfriend" is listed as the victim's next of kin

elsewhere in the medical records, and the victim may have had more than one

boyfriend,6 (3) the victim's alleged statements in the records did not fall into

recognized hearsay exceptions, and (4) the probative value of the evidence was

outweighed by the danger of unfair prejudice. Notably, the defense never

specifically contended at the pretrial hearing that the victim's reports were

inaccurate as to the nature of the injuries inflicted.

The trial court determined the evidence was relevant and probative of

intent, identity and absence of accident. It found the medical records documenting

the victim's reports of the abuse admissible under three hearsay exceptions --

excited utterance, then existing mental, emotional or physical condition, and

statement for purposes of medical diagnosis and treatment. See Tenn. R. Evid.

803(2), (3), (4). On the other hand, the court found the alleged rape with the metal

5
There are records from other service providers documenting reports of
abusive injuries to which the defendant voiced no specific objection. In fact, the
defendant requested, "[I]f the State is allowed to present certain records I would
request that all of the records be introduced."
6
In contrast, in at least some of the records from the Battered Women's
Shelter, the victim identified her abuser as "Ray Nelson."

12
pipe "extremely prejudicial." See Tenn. R. Evid. 403, 404(b)(3). The court ruled

that all of the evidence except the alleged rape with the metal pipe would be

allowed. The court specifically allowed evidence of an alleged beating with a metal

pipe.7 In order to allow admission of the documentary evidence in conformity with

its ruling, the court ordered redaction of references to the alleged rape.

During the defendant's cross-examination, he testified that many of

the situations of domestic abuse which occurred through the years were "mutual-

type" occurrences. Moreover, the defendant denied ever striking the victim with a

pipe. He said the victim would provoke him by urinating on the floor and then come

at him with a knife when he said something about it. Immediately following this

testimony, the state asked the court to revisit its ruling about the alleged pipe rape.

The court decided to allow admission of this evidence in "light of [the defendant's]

response that this . . . was a mutual thing and she started it as much as he did."

When asked about the sexual assault on further cross-examination,

the defendant denied the event. He explained the victim's physical findings

documented in the medical records as resulting from consensual sex, rather than

rape with a pipe. On redirect examination, the defendant said that no one from the

hospital or shelter had ever asked his side of the story regarding the alleged rape.

Following this testimony and a ruling by the trial court, the state

entered into evidence, in unredacted form, the medical and shelter records of the

alleged rape which had previously been introduced in redacted form.

We will consider the evidence in three categories -- (a) evidence of

7
The alleged beating and alleged rape were part of the same incident.

13
non-sexual abuse about which the defendant did not challenge veracity, (2)

evidence of non-sexual abuse about which the defendant challenged the veracity,

and (2) evidence of sexual abuse.

A

First, we must consider the admissibility of the state’s case-in-chief

evidence of abuse of a non-sexual nature for which the defendant made no veracity

challenge.

As a general proposition, evidence of a defendant's character or a trait

of his character is not admissible to prove that he committed the crime in question.

Tenn. R. Evid. 404. However, evidence of a defendant's prior crimes, wrongs or

acts may be admissible to show such other things as intent, knowledge, identity,

completion of the story, opportunity and preparation. Tenn. R. Evid. 404(b); Neil P.

Cohen, Sarah Y. Sheppeard, and Donald F. Paine, Tennessee Law of Evidence §

404.6 (3d ed. 1995). In order for a defendant's prior crimes, wrongs or acts to be

admitted, the rule specifies three prerequisites:

(1) The court upon request must hold a hearing outside the jury's
presence;
(2) The court must determine that a material issue exists other
than conduct conforming with a character trait and must upon
request state on the record the material issue, the ruling, and
the reasons for admitting the evidence; and,
(3) The court must exclude the evidence if its probative value is
outweighed by the danger of unfair prejudice.

Tenn. R. Evid. 404(b). A fourth prerequisite to admission is that the court find by

clear and convincing evidence the defendant committed the prior crime. Tenn. R.

Evid. 404, Advisory Comm'n Comment; State v. DuBose, 953 S.W.2d 649, 654

(Tenn. 1997); State v. Parton, 694 S.W.2d 299, 303 (Tenn. 1985).

In reviewing a trial court's decision to admit or exclude evidence, an

14
appellate court may disturb the lower court's ruling only if there has been an abuse

of discretion. DuBose, 953 S.W.2d at 652; State v. Baker, 785 S.W.2d 132, 134

(Tenn. Crim. App. 1980). Where, as here, the trial court has been called to pass

upon the admissibility of evidence of other crimes, wrongs or acts under Rule

404(b), its determination is entitled to deference only if it has substantially complied

with the procedural requisites of Rule 404(b). DuBose, 953 S.W.2d at 652.

It is apparent from the record that the trial court held hearings outside

the jury's presence. Tenn. R. Evid. 404(b)(1). Likewise, it determined that a

material issue other than conduct conforming with a character trait of the defendant

existed, and it stated the material issues, its ruling, and its reasons for admitting the

evidence on the record. Tenn. R. Evid. 404(b)(2). The court also assessed, we

believe correctly, the probative value of the evidence versus the danger of unfair

prejudice from its admission. Tenn. R. Evid. 404(b)(3). However, we see no

evidence of record that the trial court determined by clear and convincing evidence

that the defendant committed the prior assaults against the victim. See Tenn. R.

Evid. 404, Advisory Comm'n Comment; DuBose, 953 S.W.2d at 654; Parton, 694

S.W.2d at 303. Therefore, the first question becomes whether there has been

"substantial compliance" with the procedural prerequisites of the rule. See DuBose,

953 S.W.2d at 652.

We hold that there was substantial compliance. Although the trial

court failed to make a finding that the evidence clearly and convincingly showed that

the alleged events occurred, it appears there was no real question in that regard.

The defendant did not contest the veracity of the eyewitnesses' proposed testimony

and voiced no specific objection to the accuracy of victim's injuries as recorded in

the documentary evidence. He admitted to years of abusing the victim during his

testimony. He further admitted some of this abuse had caused the victim to seek

15
hospital treatment and admission to a shelter. His only denial was that he ever hit

or sexually assaulted the victim with a metal pipe. There being no real issue that

the events other than the alleged metal pipe incident actually occurred, we believe

the trial court's findings substantially comply with the procedural prerequisites.

Accordingly, our review of the admission of this evidence is subject to the

deferential abuse of discretion standard.

Moreover, we find no abuse of discretion in the trial court's admission

of the evidence. The testimony during the state's case-in-chief of witnesses who

had seen the defendant physically abuse the victim and who had observed the

victim's physical injuries was relevant and probative of the defendant's intent to

commit the crime of murder. 8 Likewise, the records further documenting these prior

instances of abuse were highly probative. "[V]iolent acts indicating the relationship

between the victim of a violent crime and the defendant prior to the commission of

the offense are relevant to show the defendant’s hostility toward the victim, malice,

intent, and a settled purpose to harm the victim." State v. Smith, 868 S.W.2d 561,

574 (Tenn. 1993); see also State v. Leon Barnett Collier, No. 03C01-9602-CR-

8
On the other hand, we find abuse of discretion in the trial court's
determination that the evidence was admissible on the issue of identity.
Evidence is admissible under Rule 404(b) only where it is probative of "some
matter actually in issue." State v. Howell, 868 S.W.2d 238, 254 (Tenn. 1993)
(citation omitted). There was no material issue of identity at trial. The defendant
gave a pre-trial statement in which he admitted killing the victim. The contested
issue was whether he did so in self defense. However, there is no harm in the
trial court's erroneous ruling because the evidence was otherwise admissible to
show intent.

Additionally, we question whether the evidence of the defendant's alleged
prior abuse of the victim was admissible to a claim of absence of mistake or
accident. We do not perceive the defendant's position to have been that he
mistakenly or accidentally killed the victim. See State v. McCary, 922 S.W.2d
511, 514 (Tenn. 1996) (prior bad acts of defendant not admissible to rebut claim
of accident where defendant has not asserted such as a defense). At most, his
evidence is that he did not intend to kill the victim. On appeal, the state has not
defended this ground for admission, and we find it unnecessary to resolve the
issue because the evidence is otherwise admissible to show intent.

16
00072, slip op. at 18 (Tenn. Crim. App., Knoxville, Jan. 13, 1997) (defendant's prior

violent acts toward murder victim relevant and probative of motive and intent), perm.

app. denied (Tenn. 1997).

The high probative value of this evidence was not outweighed by the

danger of unfair prejudice. The jury was properly instructed not to consider the

evidence as indicative that the defendant acted in conformity with a character trait

or his propensity for such action. Significantly, this was not a case in which the

presentation of prior bad act evidence posed the danger that the jury might

improperly conclude that the defendant was the person who committed the crime

in question because he had committed a similar wrong against the victim in the

past. Here the defendant admitted he killed the victim. Moreover, the trial court

correctly found the evidence admissible under exceptions to the hearsay rule. The

trial court acted within its discretion in admitting this evidence.

B

Next, we consider the evidence of prior abuse about which the

defendant mounted a veracity challenge at the pretrial hearing. The evidence to

which the defendant did mount a veracity challenge was that of the alleged assault

with a pipe, both sexual and non-sexual. However, the trial court allowed only the

evidence of the non-sexual pipe assault as part of the state's case-in-chief, and we

consider only the propriety of that evidence in this section of this opinion.

At the pretrial hearing, the defense objected to the admission of the

two sets of medical records from Akron General Medical Center and the Battered

Women's Shelter. The trial court found the evidence material on an issue other

than conduct conforming with a character trait of the defendant, and it found the

probative value greater than the danger of unfair prejudice. However, the court

17
made no finding that the evidence clearly and convincingly established that this

abuse occurred. In the pretrial hearing the defense contended the victim may have

been referring to a boyfriend other than the defendant when she reported to hospital

and shelter personnel that her boyfriend inflicted these injuries. At trial, the

defendant denied inflicting injuries with a metal pipe. Thus, the determination that

the defendant committed the prior acts documented in the medical records was a

contested issue. Given this situation, we do not see substantial compliance with the

procedural prerequisites of Rule 404(b) and DuBose in determining whether the

evidence was admissible during the state's case-in-chief. The question becomes,

then, whether the trial court nevertheless reached the proper conclusion.

In reviewing the medical records from Akron General Medical Center

and the Battered Women's Shelter for the time period relevant to the alleged assault

with the pipe, we find it noteworthy that the victim identified her assailant as her

boyfriend in the hospital records. In another place in the hospital records, she

identified the defendant as her boyfriend. She reported at the Battered Women's

Shelter that she was abused by her boyfriend, with whom she had been involved

for ten years. The information about the length of the victim's relationship with her

boyfriend is consistent with her long-term romantic relationship with the defendant.

We also find it noteworthy that the trial court admitted portions of this evidence

under hearsay exceptions for excited utterance, then existing mental, emotional or

physical condition, and statement for purposes of medical diagnosis and treatment.

A common thread among these three hearsay exceptions is the belief that these

types of statements are trustworthy because of the declarant's frame of mind or

motive in speaking. See generally Neil P. Cohen, Sarah Y. Sheppeard, and Donald

F. Paine, Tennessee Law of Evidence §§ 803(2).1, 803(3).2, 803(4).1 (3d ed.

1995). We believe that the trial court's finding that these statements fit within these

hearsay exceptions affords them an enhanced level of reliability. When this

18
enhanced reliability in the victim's declarations that she received certain injuries at

the hands of her boyfriend is coupled with the strong circumstantial evidence that

the defendant is the boyfriend to whom the victim was referring, the result is clear

and convincing evidence that the defendant committed the prior assault of the

victim.

Had the trial court made an appropriate finding that the defendant's

prior pipe assault of the victim was established by clear and convincing evidence,

this would only buttress its ruling on the admissibility of the pipe assault incident.

The trial court found the evidence of this incident material on an issue other than

conduct conforming with a character trait of the defendant9 and its probative value

was not outweighed by the danger of unfair prejudice. We agree. This was but one

other incident in a long history of violent, abusive behavior by the defendant against

the victim. We fail to see how the evidence of one additional incident of the non-

sexual portion of this alleged assault prejudiced the defendant.

C

Finally, we must consider the court's ruling allowing the state to cross-

examine the defendant about the alleged pipe rape and offer documentary evidence

in rebuttal.10 The trial court rationalized that this evidence should be admitted in

"light of [the defendant's] response that this . . . was a mutual thing and she started

it as much as he did."

9
For the reasons stated in section II.A. above, we find evidence of this
incident material to show the defendant's intent.
10
The documentary evidence consisted of the medical and shelter records
relevant to the alleged pipe rape. Unlike the copies of these same records
admitted during the state's case-in-chief, the records the court ruled admissible
at this juncture of the trial did not have the references to the alleged rape
redacted.

19
 We disagree with the trial court's decision to allow the cross-

examination and admit the unredacted records. "Relevant evidence" is that

evidence which has "any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than

it would be without the evidence." Tenn. R. Evid. 401. Only relevant evidence is

admissible. Tenn. R. Evid. 402. The defendant's alleged rape of the victim with a

foreign object does nothing to make it more probable or less probable that the victim

engaged in mutual combat with the defendant or that the victim was the first

aggressor in such confrontations.

Moreover, on the issue of whether the victim was the first aggressor

at the time of the fatal conflict, the evidence of the specific incident of rape was not

independently admissible when offered by the state to rebut defense claims that

the victim was the first aggressor. Tenn. R. Evid. 404(a)(2), 405; State v. Ruane,

912 S.W.2d 766, 781 (Tenn. Crim. App. 1995) (evidence of prior violence involving

the victim inadmissible under rules 404(a)(2) and 405 “if offered for anything more

than mere corroboration” of the defendant’s claim that the victim was the first

aggressor); see also State v. Hill, 885 S.W.2d 357, 362 (Tenn. Crim. App. 1994);

State v. Ray, 880 S.W.2d 700, 705-06 (Tenn. Crim. App. 1993). Nor was the

evidence independently admissible as impeachment by contradiction of the

defendant as a witness, as the trial court in its comments seems to suggest.

See Tenn. R. Evid. 403, 607; Neil P. Cohen, Sarah Y. Sheppeard & Donald F.

Paine, Tennessee Law of Evidence, §§ 607.3 (1995) (discussing the Tennessee

“collateral evidence” rule that limits impeachment by fact contradiction on collateral

issues to cross-examination of the witness); State v. Perkinson, 867 S.W.2d 1, 6-7

(Tenn. Crim. App. 1992); State v. Terry Bowen, No. 01C01-9505-CC-00158 (Tenn.

Crim. App., Nashville, Aug. 1, 1996).

20
 However, we are convinced that the admission of this evidence was

harmless error. The defendant admitted he killed the victim. The question for the

jury was not the identity of the killer, but the defendant's mental state at the time of

the crime. The evidence that the defendant's acts were, at a minimum, "knowing"

was overwhelming. The victim's daughters testified about the years of abuse they

witnessed the defendant inflict on the victim. Furthermore, the defendant was

charged with first degree murder, but the jury convicted him of second degree

murder, which undercuts any argument that the jury was so inflamed by this

evidence that it failed to weigh the evidence and return a just verdict.11

III

In his third issue, the defendant alleges that the trial court improperly

allowed Sister Repasky to testify as an expert witness on domestic violence. We

find both parties' contention that Sister Repasky was allowed to testify as an expert

somewhat mystifying. Extensive voir dire was conducted, culminating in the court

ruling that Sister Repasky could testify as an expert on domestic violence but not

battered woman syndrome. However, when the jury returned, the state never

offered Sister Repasky as an expert witness. Moreover, the bulk of Sister

Repasky's testimony concerned factual matters such as the contents of the victim's

shelter records and the witness' recollection of the victim's stays at the shelter. The

state elicited statistical evidence about domestic abuse, and the defense offered no

objection.

11
The defendant also claims the admission of the alleged rape deprived
him of a fair trial under the federal and state constitutions. We find this issue
waived for failure to cite relevant authority addressing the alleged constitutional
deprivation. See Tenn. R. App. P. 27(a)(7); Tenn. R. Ct. Crim. App. 10(b).
However, had the defendant properly presented a question of constitutional
magnitude, we would find the error harmless beyond a reasonable doubt for the
reasons discussed in the text above.

21
 On cross-examination, the defense established that Sister Repasky

could not cite to the source of some of the statistical evidence given during her

direct examination. The defense also asked Sister Repasky questions based upon

her years of experience in dealing with the victims of domestic abuse.

After Sister Repasky testified, the court went so far as to remind the

prosecutor that she had not qualified the witness as an expert, and the prosecutor

indicated she had abandoned more extensive examination of Sister Repasky

because the jury looked tired.

Although the trial court allowed the state to offer Sister Repasky as an

expert witness, the state never did so. Because Sister Repasky was never tendered

as an expert witness, we find no justiciable issue in the defendant's claim that the

trial court improperly allowed her to testify as an expert witness. Additionally, we

find it noteworthy that the only evidence which arguably might require expert

qualification (i.e. the statistical evidence and the testimony based upon the witness'

experience) was either not objected to or elicited by the defense.

IV

The final issue is whether the trial court imposed an excessive

sentence of 25 years, the maximum sentence for second degree murder. In

determining whether the trial court has properly sentenced an individual, this court

engages in a de novo review of the record with a presumption that the trial court's

determinations were correct. Tenn. Code Ann. § 40-35-401(d) (1997). This

presumption 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. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In conducting

our de novo review, we must consider the evidence at sentencing, the presentence

22
report, the sentencing principles, the arguments of counsel, the statements of the

defendant, the nature and characteristics of the offense, any mitigating and

enhancement factors, and the defendant’s amenability to rehabilitation. Tenn. Code

Ann. §§ 40-35-210(b), 40-35-103(5) (1997); Ashby, 823 S.W.2d at 168. On appeal,

the appellant has the burden of showing that the sentence imposed is improper.

Tenn. Code Ann. § 40-35-401(d), Sentencing Comm'n Comments (1997); Ashby,

823 S.W.2d at 169.

We find that the trial court conducted its sentencing determination

under the statutory framework; therefore, its determination is entitled to the

presumption of correctness.

The defendant contends the trial court erred in failing to find any

mitigating factors. In his brief, the defendant recites many factors he believes

should have been applied. First, the defendant turned himself in, gave a voluntary

statement, and cooperated fully with the authorities. See Tenn. Code Ann. § 40-35-

113(13) (1997). The defendant had tremendous remorse and potential for

rehabilitation. See Tenn. Code Ann. § 40-35-113(13) (1997). The defendant had

received significant prior injury from the victim. See Tenn. Code Ann. § 40-35-

114(3), (4) (1997). The defendant had positive aspects to his life as evidenced by

the character reference letters introduced at the sentencing hearing. See Tenn.

Code Ann. § 40-35-113(13) (1997). We fail to find merit in any of these arguments.

First, we disagree that the trial court erred in its decision not to

mitigate the defendant's sentence because he assisted the authorities. The

defendant's actions came far too late to help the victim. By the time he turned

himself in, the victim had been dead for well over a week. The defendant had

already been identified as the perpetrator, and an arrest warrant had been issued.

23
Thus, his "cooperation" was of limited assistance to the authorities. Cf. State v.

Aaron V. Yelloweyes, No. 01C01-9407-CC-00256, slip op. at 7 (Tenn. Crim. App.,

Nashville, May 11, 1995) (mitigating factor that defendant assisted authorities in

locating or recovering person or property involved in crime of slight value where

there was delay in defendant's assistance in leading authorities to site where

victim's body was buried), perm. app. denied (Tenn. 1995). But see State v. Gilboy,

857 S.W.2d 884, 889 (Tenn. Crim. App. 1993) (sentence mitigated because

defendant assisted authorities).

The trial court rejected the defendant's bid for mitigation based on

remorse and potential for rehabilitation. The court found the evidence of remorse

incredible.12 Likewise, the court found the defendant's crime was "totally

unnecessary,” that the defendant was a violent man, and there was a lengthy

history of abuse by the defendant against the victim. The trial court is in a position

superior to that of this court to observe the defendant's mood and mannerisms.

State v. Michael Robinson, No. 03C01-9510-CC-00303, slip op. at 24 (Tenn. Crim.

App., Knoxville, June 24, 1997), perm. app. denied (Tenn. 1998). We decline to

disturb the trial court's finding.

The trial court also rejected the defendant's contention that his

sentence should be mitigated because he had received previous serious injury from

the victim. The trial court found that the defendant was a strong man and simply

could have chosen to walk away from the victim. The defendant has failed to

overcome the presumed correctness of this finding.

Finally, it is apparent that the trial court was unpersuaded by the

12
The defendant did not testify at the sentencing hearing; therefore, the
evidence of his alleged remorse came from the trial.

24
defendant's character references. As previously stated, he found that there was no

reason for the defendant to have killed the victim. The defendant had abused the

victim for years. The defendant had serious character flaws, and the trial court did

not err in failing to apply this mitigating factor.

The trial court gave great weight to the two enhancement factors it

found, the defendant's past history of criminal behavior and the exceptional cruelty

with which the defendant treated the victim during the commission of her murder.

Considering the heavy weight afforded these factors and the absence of mitigating

factors, we find that the presumed correctness of the maximum sentence imposed

by the trial court has not been overcome by evidence to the contrary.

In summary, we find no error requiring reversal and affirm the

judgment of the trial court.

_______________________________
CURWOOD WITT, JUDGE

CONCUR:

_____________________________
PAUL G. SUMMERS, JUDGE

_____________________________
JERRY L. SMITH, JUDGE

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