State of Tennessee v. Jonathan Kyle Hulse

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

December 13, 2011 Session

STATE OF TENNESSEE v. JONATHAN KYLE HULSE

Appeal from the Criminal Court for Washington County

No. 35271 Robert E. Cupp, Judge

No. E2011-01292-CCA-R3-CD - Filed March 19, 2013

The Defendant, Jonathan Kyle Hulse, was found guilty by a Washington County Criminal

Court jury of aggravated rape, a Class A felony; especially aggravated kidnapping, a Class

A felony; and unauthorized use of a vehicle, a Class A misdemeanor. See T.C.A. §§ 39-13-

502 (2010) (aggravated rape), 39-13-305 (2010) (especially aggravated kidnapping), 39-14-

106 (2010) (unauthorized use of a vehicle). He was sentenced as a violent offender to

twenty-nine years for each of the Class A felonies and to eleven months and twenty-nine days

for the misdemeanor. The trial court ordered that the felony convictions be served

consecutively, for an effective fifty-eight-year sentence. On appeal, the Defendant contends

that (1) the evidence is insufficient to support the especially aggravated kidnapping

conviction, (2) his dual convictions for aggravated rape and especially aggravated kidnapping

violate due process principles, and (3) the trial court erred in admitting evidence of the

deceased victim’s statements about the crimes as excited utterances. We affirm the

judgments of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which J AMES C URWOOD W ITT,

J R., and J OHN E VERETT W ILLIAMS, JJ., joined.

T. Craig Smith, Johnson City, Tennessee, for the appellant, Jonathan Kyle Hulse.

Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant

Attorney General; Tony Clark, District Attorney General; and Erin D. McArdle and Dennis

Dwayne Brooks, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

At the time of the trial, the victim was deceased. Emily Upright testified that she was

familiar with the Defendant because she saw him in her neighborhood around the time of the

crimes. She thought he may have been staying with his father, who lived in the

neighborhood. She said the Defendant’s father’s residence was across the road and four

trailers away.

Ms. Upright testified that after midnight on August 29, 2008, her dog began barking

and that she heard a sound like a truck driving into her trailer. She and her brother went

outside and found the naked victim on the ground near her porch about one-half under her

trailer. She said that her trailer’s paneling was pushed under and that it had not been this way

previously. She said that the naked Defendant stood about fifteen feet away facing her and

the woman on the ground but that he fled in the direction of his father’s trailer when she

looked at him. She said the victim was screaming and appeared to have been stabbed several

times. Regarding the victim’s face, Ms. Upright said, “I’ve never seen anybody look that bad

in my life.” She said the victim’s injuries appeared fresh. She gave the victim a blanket.

The victim could not move but was shaking, was weak and in shock, and had lost a large

amount of blood. She said the victim stated that she had been raped and that the rapist cut

her hair. Ms. Upright said the victim acted as if she thought the Defendant was going to kill

her. After Ms. Upright called 9-1-1, the police and an ambulance arrived.

Ms. Upright testified that it was dark outside when she encountered the victim and

saw the Defendant. She said she opened a window after it was light outside and saw a

boxcutter in the front yard in front of the window. She notified the police, who responded

to the scene. She said that the boxcutter was not her brother’s or hers and that tools in her

house were locked away because she had a child. She identified photographs of the damaged

underpinning of her trailer, towels she gave the victim, and the victim’s blood on her steps.

On cross-examination, Ms. Upright testified that she sometimes saw the Defendant

near another trailer when she went to the mailbox. She estimated that she saw him fifteen

to twenty times in the two months before the crimes. She said he played basketball with his

brother outside. She said that they waved at each other and that the Defendant seemed

pleasant. She did not know if the victim injured her face on the underpinning but said the

victim stated she had been stabbed in the stomach. She said the victim stated that she did not

know who stabbed her because the victim had just met him. She said the victim pointed to

the Defendant’s father’s trailer as the location of the crimes. She said that the victim stated

that the man cut her hair and that the victim’s hair was jagged. She acknowledged that she

did not identify the Defendant that night and said she was not sure. She said that after she

calmed down, she concluded that the man she saw was the Defendant. She acknowledged

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that the victim never made a statement that she believed the Defendant would kill her. She

acknowledged that the lighting was not good that night. She said that she had her house

lights, porch light, and some street lights were lit.

On redirect examination, Ms. Upright testified that the Defendant ran as soon as she

and her brother opened the door. She said the victim stated that she had driven her car to the

trailer park. She identified a photograph of the victim depicting the condition of the victim’s

face when Ms. Upright found her.

Johnson City Police Patrol Officer Nigel McQueen testified that he responded after

midnight on August 29, 2008, to a call regarding a rape. He said that when he arrived, the

victim was wrapped in a blanket and that both were covered in blood. He described her as

“balled-up.” He said that she was screaming loudly that she had been raped. He said it was

obvious she had been physically assaulted with a sharp object. He could not tell whether she

was wearing any clothes. He spoke with her briefly until the medical personnel arrived. The

victim told him that she drove to the trailer park in her blue Chevrolet Cavalier with her

assailant. The officers searched for the car, but it was not in the neighborhood and a

“BOLO” was ordered.

On cross-examination, Officer McQueen testified that he did not recall whether he

was told to respond to a rape or an assault. He said that when he arrived, a crowd had

gathered. He said the victim did not identify by name the person she said raped her. He said

that to his knowledge, she did not make any statements about being cut or stabbed or about

her hair being cut. He said he did not pay attention to the underpinning on Ms. Upright’s

trailer. He said that to his knowledge, the victim did not make any statements about hitting

or falling into the underpinning. He had very limited contact with the Uprights but did not

recall them saying anything about the victim’s falling into the trailer. He said it took about

ten minutes for him to arrive at the scene. On redirect examination, Officer McQueen stated

that his responsibilities at the scene did not include taking full statements and that the

investigative unit would have been responsible for taking statements.

Washington County Sheriff’s Deputy David Cate testified that on August 29, 2008,

around 1:00 a.m., he was responding to a call regarding a prowler when he found the

Defendant sitting alone on the side of the road in a blue Chevrolet Cavalier. He checked the

Defendant’s identification but did not recall what the Defendant said. He said that he

smelled alcohol on the Defendant and that he took the Defendant into custody. He said that

when they “ran the tag [number for the Cavalier,] . . . it came back to switched tags[.]” He

gave the VIN to another officer, and they determined that the car was not registered to the

Defendant. He identified a photograph of the Cavalier. He learned later that Johnson City

authorities wanted the Defendant for rape, and Officer Nikki Salyer transported the

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Defendant to the police department. He identified the Defendant as the person he saw in the

Cavalier.

On cross-examination, Deputy Cate testified that he saw the Defendant in the Cavalier

near the house where a prowler had been reported. He said that the report was of a white

male without a shirt but that there was no description of a car.

Washington County Sheriff’s Investigator Nikki Salyer testified that she was working

as a patrol officer on August 29, 2008, when she and another officer responded to a call

regarding a prowler. She said she spoke with the people who made the call. When Deputy

Cate notified her that he found a person, she left the house to assist him. She identified the

Defendant as the person whom Deputy Cate had detained. She thought that the Defendant

told them he was out of gas and that he knocked on the door to try to get help. She said the

Defendant was wearing pants but no shirt. She said that they learned that the Defendant was

a suspect in a crime in Johnson City and that she took him to the Johnson City Police

Department.

Johnson City Police Investigator Bob Odom testified that he began working on the

case the next morning and went to Ms. Upright’s trailer to collect evidence. He said there

was blood on the steps, bloody towels on the porch and in the front yard, and a boxcutter in

the grass. He photographed the items and collected them. He identified the photographs he

took and the evidence he collected. He said the boxcutter’s blade was not protruding and did

not recall whether the boxcutter had a blade when he collected it. On cross-examination, he

stated that he spoke with the Uprights when he collected the evidence but did not take

statements from them. He did not know whether testing was done on the boxcutter or the

towels.

Dr. Illuri Reddy testified as an expert in emergency medicine. She said the victim was

brought to the emergency room after midnight on August 29, 2008. She said the victim was

covered in blood from head to toe. Dr. Reddy said that the victim had bruises on the left side

of her face, that her eyelid was almost closed, and that she cried and was anxious. She said

she asked the victim what happened. She said the victim told her that she gave a friend and

the friend’s friend a ride. She said the victim dropped off her friend and took the friend’s

friend home. She said that she helped him get his groceries to the door and that when she

turned to go to her car, he pulled her into the house by her hair, beat her, and raped her.

Dr. Reddy testified that she examined the victim. She described the victim’s injuries:

extensive bruising of the face, especially the left side, left eye, left side of the forehead, and

middle of the forehead and nose; cuts on the thighs; hemorrhage inside the left eye; and

bruising around the upper thighs and vaginal area. She identified photographs of the victim’s

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injuries. She said she ordered a CAT scan to determine if the victim had head or face

fractures. She said the scan revealed multiple fractures around the eyes and broken nasal

bones. She said the victim had a cut that required stitches. She said a rape kit was

performed. She said the victim received pain medication and was admitted to the hospital

for observation. She said the victim was 5'1" or 5'2" and weighed 110 or 115 pounds. She

said her diagnoses were: physical and sexual assault, multiple facial fractures, head injury,

and multiple lacerations.

On cross-examination, Dr. Reddy testified that none of the evidence collected for the

rape kit was retained by the hospital and that everything collected was sent away. She said

that bruising on the upper thighs could indicate forceful or vigorous sexual intercourse. She

said that most of the blood on the victim’s body probably came from the victim’s face

because facial cuts bleed a lot. She said that facial lacerations could be caused by a blow

from a fist. She said that a patient’s history of the injury is often used to determine how

facial lacerations were inflicted. She said that after she asked the victim what happened, the

victim said, “I was beat up.” She asked the victim who injured her, and the victim gave her

an account of the events that resulted in her injuries. She said the victim could not name her

assailant but identified him as a male friend of a female friend.

Dr. Reddy testified that she was unaware if the victim was taking Valium and Lortab.

She said it would have been difficult to determine if the victim was under the influence

because the victim was very agitated. She said she ordered a routine drug test, but none was

completed because the victim was unable to give a urine specimen. She said a rape kit was

used to determine whether a patient had been involved in sexual intercourse and to obtain a

DNA profile of the other person.

Johnson City Medical Center Nurse Gail Vestal testified that she assisted Dr. Reddy

in the emergency room on August 29, 2008, when the victim was treated. She described the

victim as tearful, upset, and scared. She said the victim was covered in blood and had a

blanket covering her. She said the victim had an avulsion on her head above her eye. She

said a rape kit involved pubic combings, collecting underwear, a pelvic exam, collecting a

cervical and vaginal sample with a swab, collecting a sample from the anal area if the

patient’s history required it, and inspecting for injuries. She said the victim was frightened

and cried the entire time, three to four hours.

On cross-examination, Nurse Vestal testified that the victim was unable to provide a

urine sample. She said that a blood sample was taken if a doctor ordered it. She said that

drug tests were given based on the doctor’s evaluation of the patient.

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The victim’s medical records were received by stipulation as an exhibit. They reflect

that the victim recounted details of the crimes to several physicians who recorded her

statements in their reports. One of these reports states:

The patient reports that they went out the day on the 29th on her way back

home, a friends of hers, Jerry, and another male that was a friend of Jerry’s that

she basically did not know, asked her to give them a ride back home. The

patient agreed to do so and first she dropped her friend Jerry at his house, and

then went ahead and took the other man to his house. When they got to the last

guy’s house, he asked her to help with some groceries, bringing in next to his

door’s apartment. She did so and at that moment he grabbed her around her

neck and threatened to kill her. He pushed her inside the house and asked her

to take her clothes off, threatening her with a knife, and stated that he would

kill her if she did not do so. The patient was subsequently raped by this guy

who beat her up with his own hands and hitting her head toward the concrete.

The patient was able later on to leave the man’s house after the sexual assault

and asked a neighbor for help.

A second report states:

Patient . . . was admitted last night after [an] assault, including a sexual assault.

She reports running out of a house, being captured, and drug back down by her

feet, and striking her face on cement.

Dr. Reddy’s emergency room notes state:

As per [patient] was in Keystone area with a friend who wanted her to give a

ride to alleged assailant. [Patient] states she took the assailant to his trailer &

walked him to it & turned to return to her car when he pulled her back inside

by her hair & beat h[er] and raped her [illegible] away & ran to the neighbors

& called 911[.]

Another report states:

[The victim] stated that she picked up by assailant and one other male to give

a ride at home when the victim arrived at assailant trailer they pushed her

down so she fell down and hit her face on the step although she denies any loss

of conscious level at that time and after that they pushed her inside and she

alleged that they did the physical and sexual assault with her.

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Johnson City Police Investigator Teresa Campbell testified that she was working as

a patrol officer on August 29, 2008, when she was dispatched to respond to an alleged rape.

She was assigned to be the primary investigator. She and Investigator Richardson went to

the emergency room and spoke with the victim. She said that a rape kit was performed while

she was there and that she waited outside the examination area for the rape kit. She said she

assisted Investigator Richardson take photographs of the victim.

Investigator Campbell testified that she and Investigator Richardson went to the

Defendant’s trailer. She said there were several pieces of mail addressed to the Defendant

in a drawer in the bedroom. She said they took photographs inside the trailer. She said there

were bedrooms on either end of the trailer with an open living room and kitchen near the

front door. Using photograph exhibits, she pointed to blood on a mattress and a clump of

reddish-blonde hair on a comforter. She said that the clump of hair resembled the victim’s

hair. She said a pair of jeans that “had been shucked inside-out” with underwear inside them

and a pair of tennis shoes were on the floor in the bedroom. She said a pair of men’s boxer

shorts were also in the bedroom. A bottle of lubricant was on the side of the bed. She said

that a bra was on a tennis shoe and that both were underneath a blanket. She said that

samples were collected of wet blood on the mattress. She identified as exhibits the clothing

and lubricant collected in the Defendant’s bedroom. She identified mail that contained the

Defendant’s return address using the address of the trailer.

Investigator Campbell identified a photograph depicting the victim’s car, which the

Defendant had driven. She said that the car had blood on the driver’s door armrest and

handle. She collected samples from the car. She said she collected a buccal swab sample

from inside the Defendant’s jaw.

Investigator Campbell testified that she interviewed the Defendant at about 4:00 a.m.

at the police department. She said the interview was recorded. She thought he wore jeans

and a t-shirt. She said that she collected the Defendant’s jeans as evidence and that there

were specks of blood on them.

The video recording of the Defendant’s interview was played. In it, the Defendant

said the victim approached him and a couple he knew in a bar and that she left with him

voluntarily after he asked if she wanted to go to his house to drink beer. He identified the

other couple as Crystal Chadwick and her boyfriend, David. He said he drank eight beers

at the bar. He said the victim drank one or two beers at his house. He said that after he told

her he would buy her some crack, she was “all over” him. He said he pretended to make a

telephone call to have someone bring crack to the house. He said that she got on top of him

as he sat in a recliner and that he suggested they go to the bedroom, where they had sex. He

said that afterwards, he told her he was not buying her any crack. He said she became angry

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and cut him with his red boxcutter that was on a table in his house. He said he pushed her

away, smacked the boxcutter from her hand, and hit her face. He thought the victim might

have cut his arm. He said he took the victim’s car keys and left because he was scared. He

denied raping the victim or cutting her hair. He said he was drunk and did not remember

everything.

On cross-examination, Investigator Campbell testified that she did not recall the rape

kit’s results. She said there were nine places from which blood was collected from the

mattress. She thought it would be difficult for the victim to have “shucked” her pants off in

the manner they were found. She acknowledged that other officers were in the Defendant’s

home before she arrived and the photographs were taken. She did not know why she never

tried to locate the couple from the bar. She did not recall the victim’s identifying her attacker

by name when she spoke to the victim at the hospital. She said the victim claimed to have

picked up two people and dropped off one before taking the Defendant home. She said she

checked a name the victim provided in order to see where the person lived. She said the

person lived in the area where the victim claimed to have dropped off someone. She did not

recall finding a bag of groceries at the Defendant’s house but did not recall the victim’s

telling her about the groceries. She acknowledged that the victim may have said this to

another officer. On redirect examination, she said she had a heavy caseload in 2008. She

said it was common for officers to enter a crime scene to assess it without disturbing it.

Investigator Bob Odom was recalled and testified that he did not move the boxcutter

before photographing it. He said that after he photographed it, he moved it to show its size

better, placed a scale next to it, and photographed it again. He said the blade was visible

after he moved it. On cross-examination, he said he retracted the blade for safety after

photographing the knife.

Tennessee Bureau of Investigation Special Agent Bradley Everett testified as an

expert in DNA profiling and serology. He said that the jeans previously identified as the

Defendant’s contained the Defendant’s DNA. He said that the boxcutter contained a mixture

of DNA. He said that he obtained a partial profile of the major contributor and that it was

consistent with the victim’s DNA. The probability of another individual’s DNA having the

same profile was one in 24,870 in the African-American population, one in 9588 in the

Caucasian population, one in 10,390 in the Southeastern Hispanic population, and one in

7943 in the Southwestern Hispanic population.

Agent Everett testified that the victim’s DNA was on two towels submitted for testing

but that there was no semen on them. Testing of samples from the victim’s car indicated the

presence of human blood with a DNA profile that was consistent with the Defendant’s DNA.

Testing of samples from the Defendant’s mattress indicated the presence of the victim’s and

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the Defendant’s DNA profiles. He said the probability of an unrelated person having the

same DNA profile as either the victim or the Defendant from the African-American,

Caucasian, Southeastern Hispanic, or Southwestern Hispanic populations exceeded the world

population. A sample from the victim’s vagina contained sperm cells, but upon DNA testing,

he could not exclude the Defendant as being a possible contributor of the genetic material.

He said he did not find any semen in the victim’s oral and anal samples.

On cross-examination, Agent Everett testified that DNA could be recovered from

bodily fluids or, on occasion, from an object a person had touched. He agreed that it was

easier to obtain DNA from a fluid. With respect to the boxcutter, he said that a decision must

be made between searching for fingerprint evidence and searching for DNA evidence. The

boxcutter was tested for DNA evidence at the request of the local police.

Cindy Simms, the victim’s cousin, testified that she and the victim were best friends.

She said the victim was forty-four when she passed away. She said that she learned of the

crimes when her sister called her and that she visited the victim the morning after the victim

was released from the hospital. She said this was one day after the crimes. She said the

victim was staying with the victim’s sister, Linda Mays. She said that when she saw the

victim’s injuries, she thought she would lose consciousness. She said she hugged the victim,

who said, “He hurt me. He hurt me bad.” She said that they embraced and that the victim

shook hard and cried so much that she had difficulty understanding the victim. She said she

took a long time calming the victim enough to be able to understand her. She said she

encouraged the victim to talk about what happened for the victim’s benefit. Ms. Simms said

she only understood “bits and pieces” because the victim was distraught and childlike.

Ms. Simms testified that the victim was hysterical and told her, “He hurt me there.”

She said the victim told her she was raped anally and that this was the most upsetting thing

to the victim. She said the victim expressed shame. She said that she asked the victim if her

assailant was someone the victim knew and that the victim stated she did not know the

person and was giving him a ride home. She said the victim stated that she first gave another

person a ride home, that she drove to the assailant’s house, that she walked to the porch and

handed him something, and that he yanked her inside. Ms. Simms said the victim stated that

the assailant took her keys and threw them and “something else” the victim had, that he

dragged her to another room, that he threatened to cut her with a knife unless she undressed,

and that he cut the victim across her leg to show her that he was serious. Ms. Simms stated

that the victim described “the anal thing” and that the assailant made quick motions on her

back with the knife, laughed, and cut her hair. Ms. Simms said the victim stated that she

realized she would die if she did not do something. Ms. Simms said the victim stated that

she fled when the assailant’s back was turned, that she heard the assailant behind her, that

she knocked on the door of a trailer but no one answered, that she felt something touch her

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hair as she fled to another door, that she knocked on the other door, that the assailant grabbed

her by the ankles, and that her face hit the steps. Ms. Simms said the victim stated that some

of her facial injuries probably came from hitting the steps. Ms. Simms said the victim stated

that her assailant dragged her by her leg on the sidewalk as she scratched and pulled the

ground to try to get away. Ms. Simms said that at this point, the victim was hyperventilating

and that she told the victim not to talk about it anymore because the victim was too upset.

Ms. Simms testified that she maintained contact with the victim until the victim’s

death. She said the victim’s personality changed after the crimes. She said that although the

victim was small in stature, she had been brave until the crimes, after which she was

frightened and physically and mentally “broken.” She said that the victim had been outgoing

and fun-loving but became withdrawn and stayed home more.

Ms. Simms testified that one or two weeks after the crimes, she was at Linda’s house

when the victim awoke from a nightmare. She said the victim screamed and said, “Don’t let

him get me, don’t let him get me.” She said the victim ran into a wall and fell to the ground.

On cross-examination, Ms. Simms testified that the victim did not give her details

about the assailant’s telling the victim to undress other than that he told the victim to remove

her shirt and that he finished undressing her. She said it was possible the assailant caught

the victim after the victim knocked on the first door. She said the victim had no memory

from the time her face hit the steps until she was sitting on the sidewalk. Ms. Simms said the

victim reported that an unknown person helped her.

Kathy Massey, the victim’s sister, testified that she went to the hospital to see the

victim at 3:00 or 4:00 a.m. on the day of the crimes. She said that she was the first family

member to arrive and that a nurse practitioner told her what happened to the victim. She said

that she went into the victim’s room and that the victim cried so hard that the victim could

not talk. She said the victim received medication and fell asleep but awoke crying,

screaming, and fighting. She said that the victim screamed, “Get him off of me,” but that the

victim eventually calmed when she realized Ms. Massey was there. She said the victim

continued this behavior that day and night and the following day. She said the victim also

said, “He’s going to kill me.” She said that the victim’s face was bruised and that several

cuts were on the victim’s legs and back. She said patches of the victim’s hair had been cut.

She said the victim’s hair was “her pride and joy.”

Linda Mays, another of the victim’s sisters, testified that the victim stayed with her

for at least two or three months after being released from the hospital. She said that the

victim had been a sound sleeper before the crimes but that after the crimes, the victim had

nightmares and awoke screaming, crying, and yelling things like “No, no.” Ms. Mays said

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this happened several times. She said that before the crimes, the victim was not fearful and

was outgoing but that afterwards, the victim was scared of the dark and did not want anything

to do with men. She said that if she had company, the victim went to another room. She

thought the victim’s fears might have improved slightly when the victim was with her

husband but that the victim was not the same person after the crimes.

On cross-examination, Ms. Mays testified that the victim came to stay at her house

five to seven days after the crimes. She said the victim’s husband was in jail at the time. She

said that the victim stayed at her house occasionally and that the victim stayed with her for

a couple of nights when the victim’s husband went to jail two or three weeks before the

crimes. She said the victim had stayed in her home on other previous occasions.

Billy Bales, the victim’s widower, testified that he and the victim were together for

fourteen years until her death and that the victim had two children from a previous

relationship. He said he was serving a sentence for a probation violation in the Carter County

Jail when the victim reported being raped. He said the night of the crimes was the first night

he was away from home. He said that after he served his sentence, he and the victim lived

together at their home. He said the victim’s personality changed after the crimes. He said

she was scared, had trouble sleeping, was afraid of the dark, would not go outside, and was

withdrawn and depressed. He said the victim would no longer talk to him when he asked her

what was wrong. He said that their physical relationship changed, that the victim could not

touch or kiss him, and that he could not hug her. He said they were no longer able to have

sexual relations. He said that when he came home three and one-half months after the

crimes, the victim’s physical injuries were healing but that she could not look at herself in

a mirror. He said she removed all of the mirrors in the house. He said she no longer slept

through the night, kept the lights on, and only slept during the day for a time. He said the

victim sometimes jerked and flailed her arms in her sleep and awoke screaming, slapping,

and hitting him. He said that this happened nightly for about one year and that over time, she

became less physical but still awoke in a hysterical state.

Mr. Bales identified a photograph of the victim’s car. He said he paid $700 for it and

installed an ignition that cost $240. He did not recall whether the car was titled in his or the

victim’s name but said it was her car. He identified the victim’s shoes, pants, and underwear

in previously admitted photograph exhibits. He also identified her hair in a photograph.

On cross-examination, Mr. Bales testified that he and the victim had a good

relationship before the crimes. He said that they had separated about one year earlier but that

he felt like they had reconciled. He did not know why the victim was in Johnson City on the

night of the crimes. He said the victim did not want to stay home alone but was not upset

about the underlying crime for his probation violation. He acknowledged that he had

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multiple DUI convictions. He agreed he knew before first seeing the photographs that they

were from the crimes against his wife. The State rested.

Crystal Chapman testified for the defense that she had known the Defendant for about

twenty years and that she had dated his brother. She said that on the evening of the offenses,

the Defendant called to invite her and her then-boyfriend, David Murphy, to meet him at a

bar. She said the Defendant was already at the bar when they arrived around 10:00 to 10:30

p.m. She said that a woman arrived about fifteen minutes later and that she and the woman

began a conversation about ten minutes later. While the Defendant, Mr. Murphy, and she

were seated at a booth, the woman asked if she could sit with them. She also said that she

offered for the woman to sit with them. She said that none of them knew the woman, who

was alone. The woman sat next to the Defendant. Ms. Chapman said they were together at

the bar for about one and one-half hours drinking beer. She said that the Defendant invited

them to his house for drinks but that she and Mr. Murphy declined. She was unsure about

the time they left but estimated it was around midnight or 1:00 a.m. She said the Defendant

and the woman left together. She said the woman seemed willing to leave with the

Defendant and did not need coaxing.

On cross-examination, Ms. Chapman testified that she did not know how the

Defendant got to the bar. She thought he arrived shortly before she and Mr. Murphy did.

She did not know that the victim was admitted to the emergency room at 12:54 a.m. She did

not see either the Defendant or the woman after they left together. On redirect examination,

she agreed that they left the bar after midnight and that her time estimate might be inaccurate.

David Murphy testified that he was involved with Ms. Chapman on the night of the

offenses. He said they agreed to meet the Defendant at a bar. He said he had met the

Defendant once before that night and did not really know him. He said that they arrived at

the bar around 10:00 p.m. and that the Defendant was already there or arrived shortly

thereafter. He said he did not drink. He said that the Defendant and Ms. Chapman drank that

night but that he did not think they drank excessively. He said a woman whom none of them

knew joined their group. He said that he and Ms. Chapman left about forty-five minutes after

they arrived. He thought they left before midnight. He said the Defendant and the woman

left together. He said the woman left willingly. He thought Ms. Chapman might have gone

outside with the Defendant and the woman for a few minutes.

On cross-examination, Mr. Murphy testified that he was unsure if the woman was at

the bar the entire forty-five minutes he and Ms. Chapman were there and thought she

probably arrived after they arrived. He said she was petite and seemed nice. He said he was

not drinking or taking drugs that night. He did not remember how the Defendant got to the

bar. He did not think the Defendant was intoxicated.

-12-

After receiving the proof, the jury found the Defendant guilty of the charged offenses

of aggravated rape by vaginal penetration and especially aggravated kidnapping. It found

him guilty of unauthorized use of a vehicle as a lesser included offense of theft of property.

It acquitted him of aggravated rape by anal penetration. After the court imposed an effective

fifty-eight-year sentence, the Defendant appealed.

I & II

The Defendant contends that the evidence is insufficient to support his conviction for

especially aggravated kidnapping. Resolution of the issue involves his contention in a

separate issue that due process principles are violated by convictions for both especially

aggravated kidnapping and aggravated rape. The State contends that the evidence is

sufficient to support the especially aggravated kidnapping conviction and that dual

convictions for especially aggravated kidnapping and aggravated rape are proper. We

conclude that the proof supports a conviction for especially aggravated kidnapping and that

the proof supports dual convictions of especially aggravated kidnapping and aggravated rape.

We also conclude that the jury was not properly instructed that in order to convict the

Defendant of especially aggravated kidnapping, it must find that the Defendant substantially

interfered with the victim’s liberty in a way that was not essentially incidental to the rape but

that the error was harmless beyond a reasonable doubt.

A. Sufficiency of the Evidence

Our standard of review when the sufficiency of the evidence is questioned on appeal

is “whether, after viewing 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, 319 (1979). We do not reweigh the

evidence but presume that the trier of fact has resolved all conflicts in the testimony and

drawn all reasonable inferences from the evidence in favor of the State. See State v.

Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835

(Tenn. 1978). Questions about witness credibility are resolved by the jury. See State v.

Bland, 958 S .W.2d 651, 659 (Tenn. 1997).

Relevant to this case, especially aggravated kidnapping “is false imprisonment . . .

[a]ccomplished with a deadly weapon or by display of an article used or fashioned to lead the

victim to reasonably believe it to be a deadly weapon[.]” T.C.A. § 39-13-305(a)(1) (2010).

“A person commits . . . false imprisonment who knowingly removes or confines another

unlawfully so as to interfere substantially with the other’s liberty.” Id. § 39-13-302(a).

-13-

The Defendant argues that the evidence is insufficient to support the conviction

because his DNA was not identified on the boxcutter. We do not view the lack of DNA

evidence as meaningful. The record reflects that a red boxcutter was found outside Ms.

Upright’s home, where the victim was found and where the Defendant was seen hours

earlier. The Defendant admitted that the boxcutter was his and that he “may have” cut the

victim with it earlier when they were inside the trailer. That said, further analysis is

necessary to address the question of the sufficiency of the evidence.

The victim took the Defendant to his home and helped him carry something to the

door. He pulled her inside, threatened her life, took her car keys, cut her skin and hair with

a boxcutter, beat her, took her into a bedroom, and sexually assaulted her. After the assault,

the naked victim thought the Defendant would kill her and fled outside when the Defendant

turned away. She went to the door of another trailer as the Defendant chased her but was

unable to get help. She ran to Ms. Upright’s home. The Defendant grabbed her ankles,

caused her to fall and strike her head on some stairs, and dragged her by her feet along the

sidewalk. When Ms. Upright came to the door, the victim was about halfway under the

trailer and the trailer’s underpinning was damaged. A naked man, whom Ms. Upright later

identified as the Defendant, was standing about fifteen feet away and fled toward the

Defendant’s home when she saw him. The Defendant left the scene in the victim’s car. A

red boxcutter was found on the ground outside Ms. Upright’s trailer. The victim had

extensive facial bruising and cuts on her legs and back. She had multiple facial fractures

around her eyes and broken bones in her nose.

Were there not a separate aggravated rape charge to consider, we would conclude that

this evidence is sufficient to support the especially aggravated kidnapping conviction.

Because there is an aggravated rape charge, though, resolution of whether the evidence is

sufficient to support the especially aggravated kidnapping conviction is complicated by the

separate charge of aggravated rape. Conviction of both offenses is appropriate only if the

removal or confinement of the victim was not essentially incidental to the victim’s rape.

B. Due Process

As a further component of our sufficiency of the evidence review, we turn to the

Defendant’s due process issue. After the parties filed their briefs and argued this case orally,

our supreme court overruled the existing caselaw providing the due process analysis to be

applied upon appellate review of dual convictions of kidnapping and an accompanying

felony. See State v. White, 362 S.W.3d 559, 578 (Tenn. 2012) (overruling State v.

Richardson, 251 S.W.3d 438 (Tenn. 2008); State v. Fuller, 172 S.W.3d. 533 (Tenn. 2005);

State v. Cozart, 54 S.W.3d 242 (Tenn. 2001); State v. Dixon, 957 S.W.2d 532 (Tenn. 1997);

State v. Anthony, 817 S.W.2d 299 (Tenn. 1991)). Previously, an appellate court was required

-14-

to conduct a due process inquiry in order to determine whether dual convictions were

constitutionally permissible. See, e.g., Richardson, 251 S.W.3d 438. In White, the court said

that a separate appellate due process analysis is not necessary. The court held that the

inquiry “is a question for the jury after the appropriate instructions,” with appellate review

of the sufficiency of the evidence serving as the due process protection. White, 362 S.W.3d

at 577-78. The supreme court provided a jury instruction regarding the “substantial

interference” element of kidnapping:

To establish whether the defendant’s removal or confinement of the victim

constituted a substantial interference with his or her liberty, the State must

prove that the removal or confinement was to a greater degree than that

necessary to commit the offense of [insert offense], which is the other offense

charged in this case. In making this determination, you may consider all the

relevant facts and circumstances of the case, including, but not limited to, the

following factors:

• the nature and duration of the victim’s removal or confinement

by the defendant;

• whether the removal or confinement occurred during the

commission of the separate offense;

• whether the interference with the victim’s liberty was inherent

in the nature of the separate offense;

• whether the removal or confinement prevented the victim from

summoning assistance, although the defendant need not have

succeeded in preventing the victim from doing so;

• whether the removal or confinement reduced the defendant’s

risk of detection, although the defendant need not have

succeeded in this objective; and

• whether the removal or confinement created a significant

danger or increased the victim’s risk of harm independent of that

posed by the separate offense.

Id. at 580-81 (“We invite the Tennessee Pattern Jury Instruction Committee to promulgate

a pattern jury instruction for those trials in which a defendant is indicted for kidnapping and

-15-

an accompanying felony. Until the development of an appropriate instruction, however, the

language articulated herein shall apply.”) (footnotes omitted).

Under White, an instruction is required if the proof “fairly raised” a question of

whether there was a kidnapping offense separate from the accompanying felony. See State

v. Bennie Osby, No. W2012-00408-CCA-R3-CD, slip op. at 8 (Tenn. Crim. App. Nov. 2,

2012), perm. app. filed (Tenn. Dec. 11, 2012). In this pre-White case, the jury was not so

instructed. There was evidence that the Defendant pulled the victim into the trailer, took her

car keys, threatened her life, cut her with a knife, chased her as she fled to seek help from

neighbors, grabbed her by her ankles as she attempted to reach Ms. Upright’s door, and

pulled her across the sidewalk. The Defendant argues in his brief that the only facts relevant

to the kidnapping are those occurring before the victim fled the trailer, where the victim said

the rape occurred. We note that kidnapping is a continuous crime. State v. Legg, 9 S.W.3d

111, 117 (Tenn. 1999) (“[A]n act of removal or confinement does not end merely upon the

initial restraint, and a defendant continues to commit the crime [of kidnapping] at every

moment the victim’s liberty is taken.”); see State v. Campbell, 245 S.W.3d 331, 337 (Tenn.

2008) (noting the court’s conclusion in Legg that the crime of kidnapping “continued until

[the victim’s] liberty was restored”). This court has taken an expansive view of kidnapping.

See State v. Evangeline Combs and Joseph D. Combs, Nos. E2000-02801-CCA-R3-CD and

E2000-02800-CCA-R3-CD (Tenn. Crim. App. Sept. 25, 2002) (stating in a case involving

kidnapping arising from seven years of enslavement and torture, “we reject the Defendants’

argument that no confinement was proved because she escaped on three occasions and

voluntarily returned twice”), perm. app. denied (Tenn. Jan. 27, 2003).

Upon review, we conclude that the facts demonstrate that the Defendant’s actions

fairly raised the issue of whether they were incidental to the aggravated rape. A separate jury

issue was raised regarding whether the offense of especially aggravated kidnapping occurred.

The absence of the White jury instruction was error.

The question becomes, then, whether the error was harmless beyond a reasonable

doubt. See White, 362 S.W.3d at 580 n.20 (“Because we cannot conclude beyond a

reasonable doubt that the jury verdict would have been the same absent the instructional

error, we cannot find the error harmless.”); Bennie Osby, slip op. at 9 (applying harmless

beyond a reasonable doubt standard to omission of White instruction). Given the evidence

in this case, we conclude that the State’s evidence was so overwhelming as to assure that the

White instructional error was harmless beyond a reasonable doubt. See White, 368 S.W.3d

at 580-81 (concluding that absence of the White instruction was not harmless beyond a

reasonable doubt where there was not overwhelming proof that the victims’ removal or

confinement went beyond that necessary to accomplish the accompanying felonies); see also

Antonio Richardson v. Ronald Colson, Warden, No. 3:12-CV-409 (M.D. Tenn. July 9, 2012)

-16-

(stating that the decision in White was largely dependent on the appellate court’s

determination that the evidence was equivocal regarding whether the victim’s movement or

confinement was essentially incidental to the robbery, whereas the evidence in the case

before the court was not equivocal).

The facts support a conclusion that the Defendant’s chasing the victim was not in

order to accomplish the rape, which had already occurred, nor was it inherent in the then-

completed aggravated rape. His chasing her kept her from retrieving her car keys, which he

had taken from her and thrown inside his trailer. The facts also support a conclusion that the

Defendant’s actions created significant danger or risk of harm. He chased the victim with

the boxcutter, having already demonstrated his intent and willingness to cut her and having

threatened her life. As the victim reached Ms. Upright’s trailer, the Defendant grabbed her

ankles, causing her to sustain significant injuries to her head, and pulled her down the

sidewalk, preventing her from summoning help. A jury could find that Ms. Upright’s

investigation of the noise she heard outside was a fortuitous intervening circumstance that

frightened the Defendant into abandoning his further removal or confinement of the victim

after the rape. The only reasonable conclusion to be drawn from the evidence is that the

Defendant’s actions were well beyond that necessary to consummate the rape. The lack of

the White instruction was harmless beyond a reasonable doubt.

C. Election of Offenses

As part of our analysis, we have considered whether the State had an obligation to

elect facts upon which it relied as proof of especially aggravated kidnapping based upon a

theory that the proof demonstrated two possible kidnapping episodes. See, e.g., State v.

Brown, 762 S.W.2d 135, 137 (Tenn. 1998) (requiring election of offenses to ensure juror

unanimity); State v. Walton, 958 S.W.2d 724, 727 (Tenn. 1997); State v. Shelton, 851

S.W.2d 134, 136 (Tenn. 1993); Burlison v. State, 501 S.W.2d 801, 804 (Tenn. 1973). As we

have noted, the Defendant argues in his brief for a narrow view of the facts that ignores the

Defendant’s restraint of the victim after she fled his trailer. At oral argument, the Defendant

urged us to consider the events that occurred after the victim fled as a new set of facts

demonstrating an attempted aggravated kidnapping separate from a kidnapping that was

merely incidental to the rape. The State argues in its brief that the evidence is sufficient to

support the especially aggravated kidnapping conviction based upon evidence that the

Defendant threatened the victim with a knife inside the trailer, that he admitted he may have

cut her with a box cutter inside the trailer, and that he chased her when she escaped the trailer

and dragged her down the sidewalk. The State also argues that due process permitted dual

convictions of aggravated rape and especially aggravated kidnapping based upon the

Defendant’s actions after the victim fled the trailer. At oral argument, the State

-17-

acknowledged the inconsistent positions taken in its brief but relied upon the events outside

the trailer as proof of an especially aggravated kidnapping separate from the aggravated rape.

As we have noted, Tennessee courts take an expansive view of kidnapping. Because

we have concluded that the facts demonstrated a single kidnapping from a continuing course

of conduct, we conclude that there was no issue regarding election of kidnapping offenses.

In summary, there is sufficient evidence to support a separate conviction of especially

aggravated kidnapping. The lack of a White instruction regarding whether there were

separate offenses of aggravated rape and especially aggravated kidnapping was harmless

beyond a reasonable doubt. The State was not required to elect a set of facts upon which it

relied to support the especially aggravated kidnapping charge. The Defendant is not entitled

to relief.

III

The Defendant contends that the trial court erred in admitting hearsay testimony

regarding the victim’s statements to Ms. Simms. The State counters that the trial court did

not abuse its discretion in admitting the evidence, but even if it did, the error was harmless

because Ms. Simms’s testimony was “largely cumulative” of other evidence. We conclude

that the trial court erred in admitting the evidence but that the error was harmless.

“‘Hearsay’ is a statement, other than one made by the declarant while testifying at the

trial or hearing, offered in evidence to prove the truth of the matter asserted.” Tenn. R. Evid.

801(c). Hearsay is not admissible unless admission is authorized by the evidence rules or by

other controlling provisions of law. Id. at 802. One exception to the hearsay rule is for an

excited utterance, “[a] statement relating to a startling event or condition made while the

declarant was under the stress of excitement caused by the event or condition.” Id. at 803(2).

Our supreme court has stated three prerequisites to admission pursuant to the excited

utterance exception:

The first requirement is “a startling event or condition” that “‘suspend[s] the

normal, reflective thought processes of the declarant.’” State v. Stout, 46

S.W.3d 689, 699 (Tenn. 2001) (quoting State v. Gordon, 952 S.W.2d 817, 820

(Tenn. 1997)) (other internal quotations omitted) [(abrogated by statute on

other grounds as stated in State v. Odom, 137 S.W.3d 572, 580-81 (Tenn.

2004))]. Second, the statement must “relate to” the startling event or

condition. Id. This broad requirement offers “considerable leeway” such that

“the statement may describe all or part of the event or condition, or deal with

the effect or impact of that event or condition.” Gordon, 952 S.W.2d at 820

-18-

(quotation omitted); [Neil P.] Cohen et al., [Tennessee Law of Evidence (5th

ed. 2005)] § 8.07[3][c], at 8-76. The third and final requirement dictates that

the declarant make the statement while “under the stress or excitement from

the event or condition.” Stout, 46 S.W.3d at 699-700. This requirement

considers a variety of factors, including the interval of time between the

startling event and the statement. Id. at 700.

State v. Franklin, 308 S.W.3d 799, 823 (Tenn. 2010) (footnotes omitted).

The record reflects that the victim’s statements to Ms. Simms were made on two

occasions. First, the victim talked to Ms. Simms shortly after the victim’s hospital release.

Second, Ms. Simms was at Ms. Mays’s house a week or two later when the victim awoke

from a nightmare and made statements.

Regarding the victim’s statements on the morning after her release from the hospital,

we note that the crimes occurred in the late night hours of August 28, 2008, or the early

morning hours of August 29, 2008. The hospital records reflect that the victim was admitted

on August 29 at 12:54 a.m. and that she was discharged on August 30, 2008 at 2:30 p.m. Ms.

Simms testified that she did not visit the victim at the hospital and that she saw the victim the

morning after the victim’s hospital release. She also said that this was the day after the

victim was attacked. Based upon the hospital records and Ms. Simms’s statement that the

conversation occurred when she visited the victim at Ms. Mays’s house the morning after the

victim’s hospital release, we conclude that the victim’s first statements to Ms. Simms

occurred on the morning of August 31.

The Defendant argues that the emotional event that precipitated the victim’s

statements about the crimes was the victim’s seeing Ms. Simms. The State contends that the

startling event was the rape and kidnapping. Ms. Simms testified that when she first saw the

victim, she felt as if she would faint. She said that she put her arms around the victim and

that the victim said, “He hurt me. He hurt me bad.” She then testified:

Q. Let me slow you down just a second. You come in the door, could you

tell if there’s anything wrong with [the victim]?

A. Oh, yeah. I didn’t recognize her her face was so bad.

Q. And how did she react to you coming in, did she see you come in?

A. Yes. She went to try to get up and I made it to her and I said, “It’s

okay. I’m here.” And that’s when she wrapped her arms around me and then

-19-

she started shaking real bad, crying so bad I couldn’t hardly understand the

words she would say[.]

The trial court considered the victim’s seeing Ms. Simms to be the startling event that

precipitated the victim’s emotional response and statements. We must defer to the trial

court’s factual findings of predicate facts regarding the application of an exception to the

hearsay rule. State v. Gilley, 297 S.W.3d 739, 761 (Tenn. Crim. App. 2008). The evidence

does not preponderate against the court’s determination in this regard. See id.

The question of whether the resulting statements were related to the startling event is

more difficult. Our supreme court has said that although the startling event is typically the

act at issue in the case, a “subsequent startling event or condition which is related to the prior

event can produce an excited utterance.” Gordon, 952 S.W.2d at 820.

In Gordon, the three-year-old aggravated rape victim cried out in pain on two

occasions when trying to use the restroom. When her mother saw evidence of injury and

blood inside the victim’s vagina, she asked the victim, “Who made you hurt like this?” The

victim identified the defendant. The supreme court said that “the victim’s painful urination

was a sufficiently serious and startling event under the rule.” Id. at 821. After determining

that the evidence met the other criteria for admissibility, it concluded that the trial court did

not abuse its discretion in admitting the evidence. Id. Gordon emphasized that the time

interval between the startling event and the statements is not determinative. Id. at 820.

Rather, the time interval is one consideration in determining if the statement was made under

the stress of excitement. Id.; see also Stout, 46 S.W.3d at 699-700.

One of the cases upon which Gordon relied was United States v. Napier, 518 F.2d 316

(9th Cir. 1975), in which the victim was kidnapped and severely assaulted, causing brain

damage that hindered her ability to communicate except with simple words and phrases.

About one week after the victim was released from her seven-week hospitalization that

included two brain surgeries, her sister showed her a newspaper article and photograph of

the defendant. Upon seeing the photograph, the victim became distressed and said clearly,

“He killed me, he killed me.” In determining that the trial court properly admitted the

evidence as an excited utterance under Federal Rule of Evidence 803(2), the appellate court

rejected the defendant’s argument that the evidence should have been excluded because it

was not made under the stress of excitement of the assault. Id. at 317-18. Rather, the

evidence that the victim identified the defendant as her assailant was admissible because it

related to the stress of excitement of seeing the photograph. See id.; Gordon, 952 S.W.2d

at 819.

-20-

In the present case, the startling event that preceded the victim’s statements was the

victim’s seeing Ms. Simms. Although the victim became distraught and made statements

about the rape and kidnapping upon seeing Ms. Simms, unlike Gordon and Napier, there is

nothing in this case linking the startling event to the subject of the statements. In Gordon,

the victim’s painful attempts to use the restroom prompted her to identify the person who

caused the injuries that resulted in her pain. In Napier, the victim’s viewing the defendant’s

photograph related to the defendant’s identity as the person who injured her. Because the

evidence does not demonstrate any connection between the startling event of seeing Ms.

Simms and the subsequent statements about the rape and kidnapping, the evidence should

not have been admitted as an excited utterance.

The second admission of evidence of this nature involved Ms. Simms’s testimony that

she was present when the victim awoke from a nightmare, screamed, said, “Don’t let him get

me, don’t let him get me,” and fell after running into a wall. Aside from stating that this

statement was made even later than the earlier statements to Ms. Simms, the Defendant does

not explain why this evidence was inadmissible as an excited utterance. We note that the

victim’s statement was made under the stress of excitement of a nightmare. In the context

of the victim’s changes in her sleeping habits and difficulty sleeping following the crimes,

the statement “deal[t] with the effect or impact of the [startling] event or condition.” See

Gordon, 952 S.W.2d at 820. The evidence of the victim’s agitation when she awoke and

made the statement demonstrates that the statement was made while “under the stress or

excitement from the event or condition.” Stout, 46 S.W.3d at 699-700. The trial court did

not err in admitting the evidence as an excited utterance.

The Defendant argues, though, that the Ms. Simms’s testimony about the victim’s

statements should have been excluded under Tennessee Rule of Evidence 403, which

provides that relevant evidence “may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the

jury[.]” Tenn. R. Evid. 403. Prejudicial evidence is not excluded as a matter of law. State

v. Carruthers, 35 S.W.3d 516, 577 (Tenn. 2000) (citing State v. Gentry, 881 S.W.2d 1, 6

(Tenn. Crim. App. 1993)). The term “undue prejudice” has been defined as “‘[a]n undue

tendency to suggest decision on an improper basis, commonly, though not necessarily, an

emotional one.’” State v. Banks, 564 S.W.2d 947, 951 (Tenn. 1978) (quoting Fed. R. Evid.

403, advisory comm’n notes).

The Defendant argues that Ms. Simms was “an extremely emotional witness” and that

her testimony “delivered a significant amount of ‘emotionally charged’ testimony to the

jury.” We note that the appellate record does not reflect that Ms. Simms engaged in any

emotionally prejudicial conduct during her testimony, nor did the Defendant make a

contemporaneous objection to her testimony on this basis. With regard to whether her

-21-

testimony about the nightmare and accompanying statement was unfairly prejudicial, we

conclude that the trial court did not abuse its discretion in ruling that the probative value of

the evidence was not substantially outweighed by the danger of unfair prejudice. The

evidence was probative of whether the victim was raped and kidnapped, particularly when

viewed in conjunction with other evidence that she had previously been a sound sleeper but

experienced serious sleep disturbances after the crimes.

Having concluded that the trial court erred in admitting Ms. Simms’s testimony about

the victim’s statements on August 31 as the victim’s excited utterances but did not err in

admitting Ms. Simms’s testimony about the victim’s excited utterances after awaking from

a nightmare, we will consider whether the evidentiary error was harmful, i.e., an “error

involving a substantial right more probably than not affected the judgment or would result

in prejudice to the judicial process[.]” T.R.A.P. 36(b). The victim’s statements in Ms.

Simms’s testimony were substantially the same as multiple statements the victim gave to

various physicians at the hospital shortly after the crimes. The victim’s medical records were

received as an exhibit and included the physicians’ reports summarizing the victim’s

statements to them about the facts of the crime. The records were properly received as

statements made for the purposes of medical diagnosis and treatment. See Tenn. R. Evid.

803(4). The Rule provides that a statement about the “inception or general character of the

cause or external source thereof insofar as reasonably pertinent to diagnosis and treatment”

is admissible as a hearsay exception. Id. Because Ms. Simms’s testimony about the victim’s

statements on August 31 was the subject of and consistent with other admissible evidence,

we conclude that the error was harmless.

In consideration of the foregoing and the record as a whole, the judgments of the trail

court are affirmed.

___________________________________

JOSEPH M. TIPTON, PRESIDING JUDGE

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