State of Tennessee v. Mustapha Boutchiche

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

April 29, 2008 Session

STATE OF TENNESSEE v. MUSTAPHA BOUTCHICHE

Direct Appeal from the Criminal Court for Knox County

No. 80258 Richard R. Baumgartner, Judge

No. E2007-00473-CCA-R3-CD- Filed January 12, 2009

The defendant, Mustapha Boutchiche, was convicted of sexual battery, a Class E felony, and

sentenced as a Range I, standard offender to two years in the Department of Correction. On appeal,

he argues that the trial court erred in excluding evidence that the victim was untruthful in a prior

proceeding, admitting the victim’s 9-1-1 phone call, not requiring the State to make an election of

offenses, and ordering that he undergo a psychosexual evaluation prior to sentencing. He also argues

that his sentence was excessive because the trial court enhanced his sentence based on enhancement

factors not proven to a jury beyond a reasonable doubt and denied probation because he refused to

undergo the psychosexual evaluation. We affirm the defendant’s conviction and the trial court’s

denial of probation but modify his sentence to one year.

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

Modified

ALAN E. GLENN , J., delivered the opinion of the court, in which JOSEPH M. TIPTON , P.J., and

THOMAS T. WOODALL , J., joined.

Mark E. Stephens, District Public Defender, and John Halstead, Assistant Public Defender, for the

appellant, Mustapha Boutchiche.

Robert E. Cooper, Jr., Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney

General; Randall E. Nichols, District Attorney General; and Phillip H. Morton, Ta Kisha M.

Fitzgerald, Willie Harper, Del Holley, and Leland Price, Assistant District Attorneys General, for

the appellee, State of Tennessee.

OPINION

FACTS

State’s Proof

The defendant was initially tried in June 2005 for the rape of the victim. The jury could not

reach a unanimous verdict, so the defendant was retried in April 2006. At the second trial, the

victim, A.S.,1 testified that shortly after graduating high school in Texas she got a job selling

magazines door-to-door. In March 2003, she traveled with her manager and some other saleswomen

to Tennessee. Sometime after 5:00 p.m. on March 19, 2003, she went to the Woodview Terrace

Apartments in Knoxville. She was speaking with a man on a balcony when the defendant pulled up

in a green truck and asked to speak to her. She explained that she was selling magazines, and the

defendant said he would like to hear more. She got into the defendant’s truck, and they drove to a

Chick-Fil-A restaurant where the defendant purchased food for her. The victim tried to convince

the defendant to purchase some magazines. She said he agreed to purchase three magazines, and she

began to fill out her receipt book. She attempted to discuss payment, but the defendant told her to

wait until they returned to his apartment.

When they arrived back at the apartment complex, the defendant invited the victim inside

for tea. The victim again attempted to discuss payment of the magazines, and the defendant told her

that he did not have any money with him. As she began to suggest various methods of payment, the

defendant moved closer to her, kissed her, pulled up her dress, and sucked on her breast. She pushed

him away, and he offered her $200 in exchange for oral sex. She refused, telling him, “I’m not a

prostitute. I’m just here trying to sell you magazines.” He increased the price to $500, and she

agreed “at first.” She began to perform oral sex on him, but quickly stopped because she could not

go through with it. She attempted to leave, but the defendant held her down and wedged her into

the corner of a couch. He pulled down her leggings, held her legs above her head, and penetrated

her vagina. After a short time, he stopped. The victim got up, told the defendant, “You just raped

me,” and threatened to call the police. The defendant told her to wait while he retrieved money from

his bedroom. He returned wearing a condom and asked the victim to continue to have sex with him.

She refused and screamed at him, and he told her to leave the apartment.

The victim ran to the front entrance of the parking lot where she was to be picked up by her

manager. He arrived ten to fifteen minutes later, and the victim told him what had happened. He

told her to go to a nearby grocery store and call a more senior manager. After speaking with the

senior manager, she called 9-1-1 and was subsequently transported by ambulance to a hospital where

DNA samples were collected and a physical examination was performed. The victim acknowledged

that she told a nurse and a detective that the oral sex was nonconsensual but said she did so because

she was scared, ashamed, and disgusted with herself. She stated that the first time she told anyone

that the oral sex was consensual was the day before the trial. She said she was now telling the truth

“[b]ecause I want him to pay.”

On cross-examination, the victim acknowledged that she testified in the first trial that the

defendant forced her to perform oral sex. She said she agreed initially to perform the oral sex for

money because she was scared to return to her employers without money for the magazine

subscriptions. She testified that if she filled out a voucher for a magazine subscription and lost the

receipt or did not return with the money, her employers would fine her $100. She stated that when

1

It is the policy of this court to refer to victims of sexual abuse by their initials.

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she left the defendant’s apartment, she told him, “You just raped me. I want that money. If you

don’t give it to me, I’m going to call the police and tell them what you did to me.” She

acknowledged that approximately forty-four minutes elapsed between the time she left the

defendant’s apartment and her 9-1-1 call.

Dr. Qadriyyah Debnam, a Tennessee Bureau of Investigation forensic scientist specializing

in serology and DNA analysis, testified that she found a small amount of sperm in a vaginal swab

taken from the victim. However, she was only able to obtain the victim’s DNA profile from the

vaginal swab. She testified that she found saliva in a swab taken from the victim’s right breast but

could not extract enough DNA to determine its source. She also found saliva in a swab taken from

the victim’s left breast and discovered a partial DNA profile consistent with a mixture of genetic

material from the victim and the defendant. She testified that the probability of obtaining this mixed

profile from unrelated individuals is approximately 1 in 242 for the African-American population,

1 in 381 for the Caucasian population, 1 in 248 for the Southeastern Hispanic population, and 1 in

220 for the Southwestern Hispanic population. In response to a juror’s question, Dr. Debnam

testified that sperm can last in the female body for up to 72 hours.

Betsy Moore, who at the time of the offense worked as a sexual assault nurse examiner,

testified that she examined the victim and did not observe any injuries. She testified that this was

not unusual in a sexual assault case.

Charles Lee, an investigator with the Knoxville Police Department, testified that he spoke

with the victim on March 19, 2003, and that she was visibly upset and crying heavily. He asked her

to show him the defendant’s apartment and describe his vehicle. When he went to the apartment to

speak with the defendant, he discovered that the defendant did not live at the apartment she had

indicated. However, after he left the apartment, he saw a vehicle matching the victim’s description

of the defendant’s vehicle enter the parking lot. Investigator Lee spoke with the defendant, who

invited him to his apartment to speak further. The defendant told Investigator Lee that the victim

came to his apartment selling magazines, he told her he was not interested, and she left. The

defendant stated that he later left the apartment complex to run an errand, and the victim flagged him

down and asked him to take her to a nearby Weigel’s store. The defendant said he took the victim

to Weigel’s but later admitted that he had also taken her to Chick-Fil-A to eat. While at Chick-Fil-A,

the defendant saw the victim filling out the magazine vouchers and provided her a fake name and

address because he did not wish to be responsible for purchasing magazines.

The defendant told Investigator Lee that when they returned from Chick-Fil-A, he dropped

the victim off at Weigel’s and returned to his apartment. The defendant said that, a short time later,

the victim knocked on his door demanding that he pay for the vouchers she had filled out. He told

the victim he did not want the magazines, she became upset, he slammed the door, and she left.

Investigator Lee asked the defendant if there had been any sexual contact between him and the

victim, and the defendant replied in the negative.

On cross-examination, Investigator Lee testified that the victim told him that the defendant

forced her to perform oral sex. He said the defendant told him that the victim threatened to call the

police if he did not pay for the magazines.

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Defense Proof

The defendant testified that he was asleep on March 19, 2003, when the victim knocked on

his door. She told him she was selling magazines, and he said he was not interested and went back

to sleep. He later left his apartment to run an errand and saw the victim standing in the parking lot.

She waved to him, he stopped, and she asked if he would give her a ride to Weigel’s. He agreed, and

she got into his truck and began telling him about the magazines. She told him that she was hungry

and had no money, so he offered to buy her some food. The defendant testified that he again told

her that he was not interested in purchasing magazines.

The defendant and the victim went to Chick-Fil-A where the defendant purchased food. As

they sat to eat, the victim asked the defendant his name and began filling out magazine vouchers.

He again told her that he was not interesting in buying any magazines. When she persisted in asking

him to buy magazines, the defendant decided to give her a false name and address so she would

leave him alone. He acknowledged that he signed the vouchers. He said he asked about the price,

but the victim would not disclose it, saying she would “take care” of the price for him. On the way

home, the victim told the defendant that the magazines would cost $92. He told her he could not

afford to pay that much money, and she became upset. He eventually asked her to leave his vehicle,

and she called him an “asshole.”

The defendant returned to his apartment and began to make tea. Fifteen to twenty minutes

later, the victim knocked on the door and was crying, begging him to pay for the magazines. He

invited her inside to calm down. Again, she asked him to pay for the magazines and he refused. The

defendant testified that the victim then offered him sex in exchange for money, and he refused. The

victim then said, “If you don’t give me the money, I’m going to call the police.” The defendant

responded, “Go ahead. Call the police and leave my apartment,” and the victim left. On cross-

examination, the defendant acknowledged that he had previously lied during the course of a criminal

investigation.

Following deliberations, the jury found the defendant guilty of the lesser-included offense

of sexual battery. Before sentencing, the defendant was required by Tennessee Code Annotated

section 39-13-705 to undergo a psychosexual evaluation. On the advice of counsel, the defendant

refused to undergo the evaluation and moved to be excused from participating on the grounds that

doing so would violate his right to due process of law and his privilege against self-incrimination.

The trial court denied the defendant’s motion to be excused but granted permission to seek an

interlocutory appeal to this court. See Tenn R. App. P. 9. This court denied the defendant’s

application for an interlocutory appeal.

At the sentencing hearing, neither the State nor the defendant presented testimony. The State

introduced into evidence the presentence report, which reflected that the defendant had no prior

criminal convictions. The State also introduced a portion of a witness’s testimony from a separate

trial in which the defendant was acquitted of aggravated rape.

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After hearing the arguments of counsel, the trial court sentenced the defendant to two years,

stating:

I remember the facts from the [aggravated rape case in which the defendant

was found not guilty]. And, you know, the jury listened to that case and while they

did not feel there was sufficient proof to find him guilty beyond a reasonable doubt

in that case, and acquitted him and found him not guilty, I think clearly the evidence

in that case indicated that there was some conduct that was inappropriate on [the

defendant’s] behalf. It may not have risen to the level of being a rape charge. In fact,

the jury found that it was not – that there was not sufficient evidence to convict him

beyond a reasonable doubt. But I think there was evidence of inappropriate conduct

in that case. So I think I can consider that. I’m not going to give it a great deal of

weight.

Also, in this particular case, . . . this was a young lady who was out selling

magazines and, you know, the circumstances under which she was working were

deplorable at best, but she was desperate on this particular occasion to make a sale,

and I think [the defendant] took advantage of that. Took advantage of her situation.

And indeed did assault her. And I think the evidence supports that. I think this jury

again was not convinced – I think it was a compromised verdict as is appropriate in

certain circumstances. But I think, again, the conduct was such that it indicated an

assault on a very young woman by an individual who was in a position because of

her circumstances to take advantage of that.

So I think although there’s no magic formula, this is only a one to two year

range of punishment. I think an appropriate sentence is two years to serve as a range

one offender.

The trial court ordered that the defendant serve his sentence in the Department of Correction,

holding that because the defendant refused to complete the required psychosexual evaluation, the

court had no basis on which to grant probation or alternative sentencing.

ANALYSIS

On appeal, the defendant asserts that the trial court erred by refusing to permit him to

impeach the victim with evidence that she lied about her sexual orientation in the first trial in this

case and by permitting the State to play a recording of the victim’s 9-1-1 call to the jury. He also

argues that the court erred in not requiring the State to elect which instance of sexual contact it

wished to prosecute, applying sentencing enhancement factors not found beyond a reasonable doubt

by a jury, and denying him probation on the basis of his refusal to submit to the psychosexual

evaluation. The State concedes that the trial court improperly applied the enhancement factors but

argues that the judgment of the trial court should be affirmed in all other respects. As we will

explain, we agree with the State.

I. Evidentiary Rulings

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A. Exclusion of Evidence Regarding Victim’s Sexual Orientation

The defendant argues that the trial court erred in denying his motion for permission to

question the victim regarding her testimony at the first trial that she told the defendant she was a

lesbian. He asserts that at the hearing on his motion, the victim contradicted this testimony by

admitting that she had sexual intercourse with a man two weeks before her encounter with the

defendant and that the testimony was therefore admissible under Tennessee Rule of Evidence 412

as proof of a specific instance of a victim’s sexual behavior offered by the accused on the issue of

credibility of the victim. He also argues that the evidence was admissible under Tennessee Rule of

Evidence 608(b) as a specific instance of conduct of a witness for the purpose of attacking or

supporting the witness’s character for truthfulness, and under Tennessee Rule of Evidence 616 to

show the victim’s bias against him.

Pursuant to Rule 412, the defendant filed a pretrial motion for permission to cross-examine

the victim about her testimony at the first trial that she was a lesbian. In the hearing on that motion,

the victim acknowledged having testified at the first trial that she told the defendant she was a

lesbian. She further acknowledged that she had engaged in sexual intercourse with a man

approximately two weeks prior to her encounter with the defendant. When asked how she reconciled

that fact with her testimony that she was a lesbian, the victim replied that she considered herself a

lesbian regardless of having had sexual intercourse with a man, adding that she knew “lots of

lesbians that have slept with men.”

When asked by the trial court to clarify whether she was testifying that she was bisexual

rather than homosexual, the victim replied:

Well, I suppose if that’s what it means, then yes, I guess I’m bisexual but –

I mean, I really don’t know what to say to that. I mean, I didn’t lie about it. So, I

mean, if that’s what I said [that she was a lesbian], then that’s what I said, and that’s

what I meant. But I didn’t think that it was relevant for [the defendant] to know that

[the fact that she also had had sexual intercourse with a man].

After reviewing the victim’s testimony at the first trial, the trial court denied the defendant’s

motion, stating:

I don’t think that that testimony indicates that she was lying about her sexual

orientation. She’s just saying, “I told him I was a lesbian,” and she was a lesbian,

and she did it so that he wouldn’t get the idea she was there for some purpose other

than to sell him magazines. So I don’t think that that’s . . . a misrepresentation of her

sexual orientation. I mean, she was a lesbian, even if she had – on prior occasions

had sexual relationships with a man.

Tennessee Rule of Evidence 412 generally excludes evidence of specific instances of a sexual

assault victim’s sexual behavior. One exception to the general prohibition is when such evidence

is offered by the defendant on the issue of credibility of the victim, provided the prosecutor or victim

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has presented evidence as to the victim’s sexual behavior, and only to the extent needed to rebut the

specific evidence presented by the prosecutor or victim. The rule provides in pertinent part:

(c) Specific instances of conduct. – Evidence of specific instances of a

victim’s sexual behavior is inadmissible unless admitted in accordance with the

procedures of subdivision (d) of this rule, and the evidence is:

(1) Required by the Tennessee or United States Constitution, or

(2) Offered by the defendant on the issue of credibility of the victim, provided

the prosecutor or victim has presented evidence as to the victim’s sexual behavior,

and only to the extent needed to rebut the specific evidence presented by the

prosecutor or victim, or

(3) If the sexual behavior was with the accused, on the issue of consent, or

(4) If the sexual behavior was with persons other than the accused,

(i) to rebut or explain scientific or medical evidence, or

(ii) to prove or explain the source of semen, injury, disease, or

knowledge of sexual matters, or

(iii) to prove consent if the evidence is of a pattern of sexual

behavior so distinctive and so closely resembling the accused’s

version of the alleged encounter with the victim that it tends to prove

that the victim consented to the act charged or behaved in such a

manner as to lead the defendant reasonably to believe that the victim

consented.

Tenn. R. Evid. 412(c). However, even if the court determines that the evidence satisfies one of these

conditions, it must still determine that its probative value outweighs its unfair prejudice to the victim.

Tenn. R. Evid. 412(d)(4). Rule 412 is a rule of general exclusion, intended to “strike[] a balance

between the paramount interests of the accused in a fair trial and the important interests of the sexual

assault victim in avoiding an unnecessary, degrading, and embarrassing invasion of sexual privacy.”

Tenn. R. Evid. 412, Advisory Commission Cmts. (1991).

We conclude that the trial court properly held that the proffered testimony was inadmissible.

Tennessee Rule of Evidence 412 permits a defendant to introduce specific instances of a victim’s

sexual behavior only if the prosecutor or victim presents evidence during the trial regarding the

victim’s sexual behavior. In the first trial, the State referred in closing argument to the victim’s

testimony that she was a lesbian to argue that the defendant had to be the source of the semen found

in the victim. In the second trial, however, the victim did not testify about her sexual orientation and

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the prosecutor made no reference to it. The evidence was not, therefore, admissible under Rule 412

on the credibility of the victim. Furthermore, given the DNA expert’s testimony that sperm can last

in the female body for only up to 72 hours, evidence that the victim had sexual intercourse with a

man some two weeks prior to the incident was not admissible under Rule 412 to rebut scientific or

medical evidence offered by the State. Thus, the general prohibition against evidence of specific

instances of a victim’s sexual behavior remained in place.

Also, the evidence was inadmissible to impeach the victim’s credibility under Tennessee

Rule of Evidence 608. Tennessee Rule of Evidence 608(b) provides, in pertinent part, that specific

instances of conduct by a witness for the purpose of attacking or supporting the witness’s character

for truthfulness may be inquired into on cross-examination provided that:

(1) The trial court holds a hearing outside the jury’s presence and determines that the

alleged conduct has probative value and that a reasonable factual basis exists for the

inquiry; and

(2) The conduct occurred no more than ten years before the commencement of the

action or prosecution.

The defendant contends that the probative value of evidence that the victim had voluntary

sexual intercourse with a man two weeks prior to her encounter with the defendant “is extremely

high in that it proved [the victim] lied under oath in the first trial against [the defendant].” We

respectfully disagree with the defendant’s characterization of the victim’s testimony as a lie. At the

hearing on the Rule 412 motion, the victim made it clear that she thought of and defined herself as

a lesbian at the time of her encounter with the defendant:

[Defense Counsel]: I take it you testified, recalling, at the prior hearing in this --

prior trial in this matter, June 25th, 2005?

[The Victim]: Yes, sir.

[Defense Counsel]: Do you recall . . . being asked about whether or not you had

talked to [the defendant] about relationships or anything such as that, sex or

anything? Do you recall [counsel for the State] asking you that question?

[The Victim]: Up until recently I didn’t.

[Defense Counsel]: Okay.

[The Victim]: I do now, though.

[Defense Counsel]: Okay. And your answer was, “Yeah. I told him I was a

lesbian.” Do you recall that?

[The Victim]: I do now, yes.

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[Defense Counsel]: And [counsel for the State] asked why you told him you were

a lesbian, and do you recall answering, “Because I was, and you know, I guess I was

letting him know ahead of time that I was just there to sell magazine subscriptions

to him and that’s all.”

[The Victim]: Okay.

[Defense Counsel]: Do you recall that answer?

[The Victim]: Yes, sir.

[Defense Counsel]: So you were testifying that at the time of the events in this case

you were a lesbian?

[The Victim]: Yes, sir.

[Defense Counsel]: Okay. Isn’t it a fact that that’s not true, that at the time of this

case . . . you were not a lesbian. You were bisexual?

[The Victim]: If that’s what I said, then that’s what I said. But at the time I felt that

I was, and I felt that he didn’t need to know that I was interested in men.

[Defense Counsel]: Now, did you tell the state that you had last had sex with a man

about two weeks before this encounter with [the defendant]?

[The Victim]: Yes, sir.

....

[Defense Counsel]: How do you . . . define a lesbian as someone who -- simply who

just prefers women, period?

[The Victim]: Sure. I don’t know how to explain that. I mean, at the time that’s

what I said. That’s all I felt was important for him to know. Sure, if I had sexual

relations with a man two weeks prior to that, I didn’t think that he needed to know

that.

[Defense Counsel]: Okay. And I’m not disagreeing with that point.

[The Victim]: And I didn’t even remember that incident up until recently.

[Defense Counsel]: But . . . you would agree that whether he needed to know

anything or not on March 19th, 2003, you were not solely a lesbian?

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[The Victim]: At the time I felt I was . . . regardless whether I slept with a man or

not. I mean, I know lots of lesbians that have slept with men.

The record simply does not support the defendant’s claim that the victim lied about her

sexual orientation during the first trial.

Finally, the evidence was also inadmissible under Rule 616. Rule 616 of the Tennessee

Rules of Evidence provides that “[a] party may offer evidence by cross-examination, extrinsic

evidence, or both, that a witness is biased in favor of or prejudiced against a party or another

witness.” The defendant contends that “[t]he fact [the victim] lied while under oath in the first trial

. . . is certainly evidence of bias against” him and argues that he was therefore denied his

constitutional right to confront a witness and to present his defense by the exclusion of the evidence.

The cases the defendant cites in support of this argument, however, are readily

distinguishable from the case at bar. In Olden v. Kentucky, 488 U.S. 227, 109 S. Ct. 480 (1988), the

defendant, an African-American male who was tried for the kidnapping, rape, and sodomy of a

Caucasian female, sought to show that the victim had consented to the sexual encounter but later

“concocted the rape story to protect her relationship with [her African-American boyfriend], who

would have grown suspicious upon seeing her disembark” from the defendant’s vehicle. Id. at 229-

30, 109 S. Ct. at 481-82. Prevented at trial from introducing proof of the victim’s current

cohabitation with that boyfriend, the defendant appealed, arguing that his Sixth Amendment right

to confront witnesses was violated by the trial court’s refusal to allow him to introduce evidence that

would have shown the victim had a motive to lie. Id. at 230, 109 S. Ct. at 482. The Kentucky Court

of Appeals upheld the trial court’s ruling on the basis that, while the evidence was relevant, its

probative value was outweighed by the prejudicial effect that knowledge of the victim’s interracial

living arrangement may have had on the jury. Id. at 230-31, 109 S. Ct. at 482. The United States

Supreme Court reversed, concluding that “[s]peculation as to the effect of jurors’ racial biases cannot

justify exclusion of cross-examination with such strong potential to demonstrate the falsity of [the

victim’s] testimony.” Id. at 232, 109 S. Ct. at 483. Unlike in the case at bar, there was no question

but that the evidence was relevant to show the victim’s prejudice against the defendant. Id.

The excluded evidence in State v. Brown, 29 S.W.3d 427, 434 (Tenn. 2000), was also

unquestionably relevant to the defense. In that case, the defendant appealed the trial court’s denial

of his Rule 412 motion to present hearsay evidence of the minor victim’s prior sexual behavior with

another male “to provide the jury with an alternative explanation” for the tear in the victim’s hymen.

Id. at 429. The court first observed that the evidence was “clearly relevant to rebut the State’s

medical proof . . . and met the threshold admissibility standard of Tennessee Rule of Evidence 412.”

Id. at 434. The court then concluded that, despite the rule against hearsay, the evidence should have

been admitted “to satisfy [the defendant’s] constitutional right to present a defense.” Id. at 436.

The proffered evidence in the present appeal, by contrast, was not relevant to any issue at trial

and failed to meet any of the criteria for admissibility under Rule 412. We conclude, therefore, that

the trial court properly excluded the evidence as irrelevant and inadmissible.

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B. Admission of 9-1-1 Recording

The defendant argues that the trial court erred in admitting a tape recording of the victim’s

9-1-1 call. He claims that the tape was inadmissible as an excited utterance because the victim was

not under the stress of the startling event when she made the call. He further contends that, even if

admissible as an excited utterance, the tape should have been excluded because its probative value

was substantially outweighed by the danger of unfair prejudice. The State responds that the tape

properly was admitted as an excited utterance, and the trial court did not abuse its discretion in

finding that the risk of unfair prejudice did not substantially outweigh the probative value.

On the portion of the recording played for the jury, the victim tells the 9-1-1 operator that she

wants to report a rape. She says she is at a convenience store and the defendant is at his apartment

next door. She states that she does not need an ambulance and just wants the defendant to go to jail.

She describes her appearance to the operator. The operator asks if the defendant attempted to rape

her or actually raped her, and the victim replies that he actually raped her. The operator asks for the

defendant’s name and address, and the victim states that his name is “Malik Celhajb” and that he

lives at 598 Woodview Lane. The victim informs the operator that the rape occurred around 7:25

p.m. The victim’s voice is trembling, and she is crying throughout the entire recording.

Relevant evidence is “evidence having 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. Generally, relevant evidence is admissible and

irrelevant evidence is inadmissible. Tenn. R. Evid. 402. Relevant evidence may be excluded,

however, “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.

Hearsay, an out-of-court statement offered to prove the truth of the matter asserted, is

generally inadmissible. See Tenn. R. Evid. 801-802. However, excited utterances, statements

relating to a startling event or condition made while the declarant was under the stress of excitement

caused by the event or condition, are not excluded by the hearsay rule. Id. R. 803(2). There is a

twofold rationale for admitting excited utterances:

First, since this exception applies to statements where it is likely there was a lack of

reflection--and potential fabrication--by a declarant who spontaneously exclaims a

statement in response to an exciting event, there is little likelihood, in theory at least,

of insincerity. . . . Second, ordinarily the statement is made while the memory of the

event is still fresh in the declarant's mind. This means that the out-of-court statement

about an event may be more accurate than a much later in-court description of it.

State v. Stout, 46 S.W.3d 689, 699 (Tenn. 2001) (citations omitted), superseded by statute on other

grounds as stated in State v. Odom, 137 S.W.3d 572 (Tenn. 2004).

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The first requirement, that there be a startling event or condition, is broadly construed,

encompassing any event “sufficiently startling to suspend the normal, reflective thought processes

of the declarant.” Stout, 46 S.W.3d at 699 (citations omitted). The second requirement, that the

statement relate to the startling event or condition, is satisfied if the statement describes all or part

of the event or condition, or deals with the effect or impact of that event or condition. Id.

“The third requirement, that the statement be made while the declarant is under the stress or

excitement from the event or condition, relates most directly to the underlying rationale for the

exception.” Stout, 46 S.W.3d at 699-700. In State v. Smith, 857 S.W.2d 1, 9 (Tenn. 1993), the

supreme court said that “[t]he ultimate test is spontaneity and logical relation to the main event and

where an act or declaration springs out of the transaction while the parties are still laboring under

the excitement and strain of the circumstances and at a time so near it as to preclude the idea of

deliberation and fabrication.” The time interval between the startling event and the declarant’s

statement is only one consideration in determining whether this third requirement is satisfied and is

not dispositive. “Other relevant circumstances include the nature and seriousness of the event or

condition; the appearance, behavior, outlook, and circumstances of the declarant, including such

characteristics as age and physical or mental condition; and the contents of the statement itself,

which may indicate the presence or absence of stress.” Id. at 700 (citations omitted).

We first consider whether the statement on the recording was properly admitted as an excited

utterance. The defendant concedes that the sexual battery was a startling event and that the victim’s

statement related to it, but he argues that the victim was not under the stress of excitement caused

by the startling event because approximately forty-four minutes elapsed between the sexual assault

and her 9-1-1 call. However, as we have set out, the time interval between the startling event and

the statement is but one factor in our analysis. The declarant was an eighteen-year-old woman who

had recently experienced a sexual assault. Throughout the recording, she cried and experienced

difficulty in speaking with the operator, which indicated that she was under great stress when making

the statement. The defendant has not shown that the trial court abused its discretion in admitting the

statement as an excited utterance.

The defendant further argues that even if the statement were admissible as an excited

utterance, the trial court should have excluded it because, in his view, its probative value was

substantially outweighed by the danger of unfair prejudice. He argues that “[t]he only possible

probative information” on the recording is that the defendant gave a false name to the victim and that

the recording is highly prejudicial because the victim was extremely upset and the 9-1-1 operator

displayed sympathy toward her.

However, the State responds, and we agree, that the recording is probative because it allowed

jurors to evaluate the victim’s demeanor after the sexual battery and to judge her credibility. See

State v. Matthew Douglas Cox, No. E1999-00351-CCA-R3-CD, 2000 WL 1562920, at *15 (Tenn.

Crim. App. Oct. 20, 2000), perm. to appeal denied (Tenn. Apr. 9, 2001). There were no witnesses

to the encounter between the defendant and the victim. Therefore, the issue of the victim’s

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credibility was important. The trial court was in the best position to balance the probity and

prejudice of the recording, and the record supports its decision.

II. Election of Offenses

The defendant argues that the trial court erred by not requiring the State to elect the specific

touching required for the sexual battery conviction. He contends that “[t]his Court in its appellate

review cannot be certain that some or all of the jurors did not in fact base their verdict on [the

defendant’s] alleged sucking of [the victim’s] breast, or her voluntarily performing oral sex on him.”

He argues that because these two instances of sexual conduct were consensual, the State was

required to elect that it was seeking a conviction on the vaginal penetration. The State argues that

an election was not required because there was proof of only one offense and the indictment was

specific as to the offense for which the defendant was being charged. We agree with the State.

The Tennessee Constitution safeguards the right of a criminal defendant to a unanimous jury

verdict before a conviction may be imposed. State v. Lemacks, 996 S.W.2d 166, 169-70 (Tenn.

1999). Where the State presents evidence showing that more than one offense occurred, but the

indictment is not specific for which offense the defendant is being tried, it is the responsibility of the

trial court to require the State to elect which offense is being submitted to the jury. Id. at 170; see

also State v. Brown, 823 S.W.2d 576, 583 (Tenn. Crim. App. 1991) (“[I]n cases involving evidence

which shows a real potential that a conviction may occur as a result of different jurors concluding

that the defendant committed different acts, each of which separately showing the commission of

an offense, the trial court must augment the general unanimity instruction to insure that the jury

understands its duty to agree unanimously to a particular set of facts.”).

In State v. Brown, 992 S.W.2d 389, 391 (Tenn. 1999), our supreme court explained the

purpose for requiring an election of offenses:

The requirement of election serves numerous interests: it enables the

defendant to prepare for the specific charge; it protects a defendant against double

jeopardy; it enables the trial judge to review the weight of the evidence in its role as

thirteenth juror; and it enables an appellate court to review the legal sufficiency of

the evidence. See Tidwell [v. State], 922 S.W.2d [497,] 500-01 [(Tenn. 1996)];

Burlison [v. State], 501 S.W.2d [801,] 803 [(Tenn. 1973)]. The most important

interest served by election, however, is to ensure that the jurors deliberate over and

render a verdict based on the same offense[.]

The defendant was originally charged with the aggravated rape of the victim. On June 29,

2005, an agreed order was entered amending the charge to rape. The indictment, as amended, reads

as follows:

THE GRAND JURORS for the State of Tennessee, upon their oaths, present

that MUSTAPHA BOUTCHICHE, ALIAS, heretofore to-wit: on or about the 19th

day of March, 2003, did, unlawfully and knowingly sexually penetrate [the victim],

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without the consent of [the victim], and at the time of penetration the said

MUSTAPHA BOUTCHICHE knew or had reason to know that [the victim] did not

consent to said penetration, in violation of T.C.A. 39-13-503, and against the peace

and dignity of the State of Tennessee.

The trial court instructed the jury on the elements of the offense as well as on the relevant

elements of the lesser-included offenses of aggravated sexual battery, sexual battery, and assault.

After deliberating, the jury convicted the defendant of the lesser-included offense of sexual battery,

which is defined in pertinent part as “unlawful sexual contact with a victim by the defendant . . .

accomplished without the consent of the victim and the defendant knows or has reason to know at

the time of the contact that the victim did not consent.” Tenn. Code Ann. § 39-13-505(a)(2).

The defendant argues that some jurors may have based the conviction of sexual battery on

evidence that the victim performed oral sex on him or that he sucked on her breast, rather than on

the evidence relating to the sexual penetration, thereby denying him of his constitutional right to a

unanimous verdict. However, neither the evidence concerning oral sex nor the evidence concerning

the defendant’s sucking of the victim’s breast would be sufficient for the jury to find that the

defendant committed a sexual battery of the victim. As the State points out, the victim admitted in

her testimony that the oral sex was consensual, and there was no proof that the defendant’s touching

of the victim’s breast was without consent or, if it was, that the defendant knew at the time that it

was without consent.

III. Application of Enhancement Factors

The defendant argues that the trial court erred in sentencing him to two years, the maximum

sentence for a Class E felony, on the basis of two enhancement factors which were not proven to the

jury beyond a reasonable doubt. The State concedes that the enhancement factors were applied

improperly and that the defendant should have been sentenced to the minimum one year. We agree

with the parties and reduce the defendant’s sentence from two years to one year.

When an accused challenges the length and manner of service of a sentence, it is the duty of

this court to conduct a de novo review on the record “with a presumption that the determinations

made by the court from which the appeal is taken are correct.” Tenn. Code Ann. § 40-35-401(d)

(2003). 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). However, the presumption does not apply to the legal

conclusions reached by the trial court in sentencing the accused or to the determinations made by the

trial court which are predicated upon uncontroverted facts. State v. Butler, 900 S.W.2d 305, 311

(Tenn. Crim. App. 1994); State v. Smith, 891 S.W.2d 922, 929 (Tenn. Crim. App. 1994); State v.

Bonestel, 871 S.W.2d 163, 166 (Tenn. Crim. App. 1993), overruled on other grounds by State v.

Hooper, 29 S.W.3d 1, 9 (Tenn. 2000).

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Because, as we will explain, we conclude that the trial court erred in application of certain

of the enhancement factors, our review is de novo, without a presumption of correctness. State v.

Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992). In conducting a de novo review of a

sentence, this court must consider (a) any evidence received at the trial and/or sentencing hearing,

(b) the presentence report, (c) the principles of sentencing, (d) the arguments of counsel relative to

sentencing alternatives, (e) the nature and characteristics of the offense, (f) any mitigating or

enhancement factors, (g) any statements made by the accused in his own behalf, and (h) the

accused’s potential or lack of potential for rehabilitation or treatment. Tenn. Code Ann. §§

40-35-103, -210; State v. Taylor, 63 S.W.3d 400, 411 (Tenn. Crim. App. 2001) (citing Ashby, 823

S.W.2d at 168; State v. Moss, 727 S.W.2d 229 (Tenn. 1986)). The appealing party bears the burden

of showing the sentence is improper. Tenn. Code Ann. § 40-35-401, Sentencing Commission Cmts.;

Ashby, 823 S.W.2d at 169.

The defendant committed the offense in 2003 and was sentenced according to the pre-2005

version of the Tennessee Criminal Sentencing Reform Act. The pre-2005 Sentencing Act permitted

a trial court to increase a defendant’s sentence if it found certain enhancement factors by a

preponderance of the evidence. See Tenn. Code Ann. §§ 40-35-114, -210 (2003) (repealed); State

v. Carico, 968 S.W.2d 280, 287 (Tenn. 1998). However, the United States Supreme Court has held

that any fact other than that of a prior conviction used to enhance a defendant’s sentence must be

proven to a jury beyond a reasonable doubt. Blakely v. Washington, 542 U.S. 296, 301, 124 S. Ct.

2531, 2536 (2004). Subsequently, the Tennessee Supreme Court held that Tennessee’s pre-2005

Sentencing Act ran afoul of Blakely to the extent that it permitted trial courts to enhance a

defendant’s sentence based on judicially-found facts, other than the defendant’s prior convictions.

State v. Gomez, 239 S.W.3d 733, 740 (Tenn. 2007).

The trial court found as enhancement factors that the defendant had a previous history of

criminal convictions or criminal behavior in addition to that necessary to establish the appropriate

range and that the defendant abused a position of private trust. See Tenn. Code Ann. § 40-35-114(2),

(16) (2003). The trial court applied the prior criminal history factor not based upon any prior

criminal convictions, but upon an aggravated rape charge for which the defendant was acquitted.

We recognize that the Tennessee Supreme Court has held that “a sentencing court may apply an

enhancement factor based on facts underlying an offense for which the defendant has been acquitted,

so long as the facts have been established in the record by a preponderance of the evidence.” State

v. Winfield, 23 S.W.3d 279, 283 (Tenn. 2000) (footnote omitted). However, Winfield was decided

four years prior to Blakely. In light of Blakely’s unambiguous holding that any fact other than a

prior conviction used to enhance a defendant’s sentence must be proven to a jury beyond a

reasonable doubt, we decline to follow Winfield. Because the facts underlying the defendant’s

aggravated rape charge were not proven to a jury beyond a reasonable doubt, it was error for the trial

court to consider them in determining the defendant’s sentence.

Nor was the fact of the defendant’s abuse of a position of trust proven to a jury beyond a

reasonable doubt. Thus, there are no mitigating or enhancement factors in the record before us. In

the absence of enhancement or mitigating factors, the presumptive sentence for a Range I offender

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convicted of sexual battery, a Class E felony, is the minimum sentence of one year. Tenn. Code

Ann. § 40-35-210(c) (2003). Therefore, we modify the defendant’s sentence to one year.

IV. Tennessee Code Annotated section 39-13-705 Evaluation

The defendant argues that the psychosexual evaluation required by Tennessee Code

Annotated section 39-13-705 of convicted sexual offenders is designed to elicit incriminating

information and that the requirement to undergo such an evaluation before sentencing violated his

Fifth Amendment privilege against self-incrimination. He further contends that the trial court’s

denial of probation on the basis of his refusal to complete the evaluation impermissibly penalized

the invocation of his privilege against self-incrimination. Citing United States v. Kennedy, 499 F.3d

547, 551-52 (6th Cir. 2007), and Dzul v. State, 56 P.3d 875, 880-81 (Nev. 2002), the State notes that

other jurisdictions have concluded that a defendant’s Fifth Amendment right against self-

incrimination is not violated by a psychosexual evaluation requirement and that the trial court may

properly consider the defendant’s refusal to undergo such an evaluation when setting a sentence. The

State additionally notes that this court concluded in State v. Souder, 105 S.W.3d 602 (Tenn. Crim.

App. 2002), that a trial court may properly consider a defendant’s refusal to answer questions about

a crime as a factor in its determination of whether he has met his burden of demonstrating his

suitability for probation. The State, contends, therefore, that the trial court properly ordered the

defendant to undergo the psychosexual evaluation and denied him probation following his refusal

to submit to the evaluation. As we will explain, we agree with the State.

Tennessee Code Annotated section 39-13-705(a) provides that sex offenders seeking

probation or alternative sentencing must submit to an evaluation:

On and after January 1, 1996, each sex offender who is to be considered for

probation or any other alternative sentencing shall be required to submit to an

evaluation for treatment, risk potential, procedures required for monitoring of

behavior to protect victims and potential victims, and an identification under the

procedures developed pursuant to § 39-13-704(d)(1).

Tennessee Code Annotated section 39-13-704(d)(1) sets out the duties of the sex offender

treatment board:

The [sex offender treatment] board shall develop and prescribe a standardized

procedure for the evaluation and identification of sex offenders. The procedure shall

provide for an evaluation and identification of the offender and recommend behavior

management monitoring and treatment based upon the knowledge that sex offenders

are extremely habituated and that there is no known cure for the propensity to commit

sex abuse. The board shall develop and implement measures of success based upon

a no-cure policy for intervention. The board shall develop and implement methods

of intervention for sex offenders that have as a priority the physical and psychological

safety of victims and potential victims and that are appropriate to the needs of the

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particular offender; provided, that there is no reduction of the safety of victims and

potential victims.

After his conviction, the defendant filed a pleading styled “Motion to Prohibit the

Requirements of Tenn. Code Ann. § 39-13-701 through § 39-13-709 From Being Applied to [the

Defendant] Before Sentencing and Before Completion of His Appeals.” The trial court conducted

a hearing on the motion on June 1, 2006. At this hearing, the defendant presented no proof regarding

the format of the psychosexual evaluation. At a further proceeding in the case, the trial court denied

the defendant’s motion, concluding that because the evaluation requirement is mandatory, the court

had no discretion to waive it. The trial court granted the defendant permission to seek an

interlocutory appeal, but this court denied permission to appeal.

The defendant did not undergo the psychosexual examination before sentencing, and the trial

court ordered that he serve his sentence in confinement.

We begin our analysis of this issue by observing that at the hearing on his motion, the

defendant presented no proof regarding the content of the psychosexual evaluation. Thus, although

he asserts that “[t]he Psycho Sexual Examination required under Tenn. Code Ann. 39-13-705

generally requires an offender to talk completely about the offense for which they have been

convicted; talk about their complete prior sexual history; talk about their attitudes and feelings

towards persons who could potentially be victims; and other incriminating areas[,]” he does not

support this general statement with any specific allegation that his psychosexual evaluation would

have required him to answer self-incriminating questions. Therefore, even if we were to decide that

a psychosexual evaluation that requires a defendant to reveal incriminating information infringes

upon his Fifth Amendment rights, we would be unable to conclude that the psychosexual evaluation

in this particular case infringed upon the defendant’s Fifth Amendment privilege against self-

incrimination.

Moreover, we agree with the State that the holding in Mitchell v. United States, 526 U.S.

314, 119 S. Ct. 1307 (1999), cited by the defendant in support of his argument, did not preclude the

trial court from considering the defendant’s refusal to undergo the psychosexual evaluation when

determining whether he was a suitable candidate for probation. In Mitchell, the United States

Supreme Court held that a defendant’s guilty plea does not result in the waiver of the Fifth

Amendment privilege against self-incrimination at sentencing and that the trial court may not draw

negative inferences from a defendant’s invocation of that right when determining facts and

circumstances about the crime that bear upon the severity of the sentence. Id. at 317, 119 S. Ct. at

1309. The Court made it clear that its holding was to be narrowly applied, writing:

The rule against adverse inferences is a vital instrument for teaching that the question

in a criminal case is not whether the defendant committed the acts of which he is

accused. The question is whether the Government has carried its burden to prove its

allegations while respecting the defendant’s individual rights. The Government

retains the burden of proving facts relevant to the crime at the sentencing phase and

cannot enlist the defendant in this process at the expense of the self-incrimination

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privilege. Whether silence bears upon the determination of a lack of remorse, or

upon acceptance of responsibility for purposes of the downward adjustment provided

in § 3E1.1 of the United States Sentencing Guidelines (1998), is a separate question.

It is not before us, and we express no view on it.

Id. at 330, 119 S. Ct. at 1316 (emphasis added).

The Sixth Circuit Court of Appeals relied upon the narrowness of that holding when rejecting

a defendant’s claim that a trial court had violated his Fifth Amendment privilege against self-

incrimination by drawing a negative inference from his refusal to complete a psychosexual

evaluation. The defendant in Kennedy pled guilty to distributing child pornography and was

sentenced by the district court to 87 months imprisonment, followed by a lifetime of supervised

release. Kennedy, 499 F.3d at 551. On appeal, he argued that the district court abused its discretion

and violated his Fifth Amendment rights by considering his unwillingness to complete the

psychosexual examination when setting his sentence. The Sixth Circuit concluded that Mitchell did

not prohibit the district court from considering the defendant’s refusal to complete the examination

in its determination that the 87-month sentence and lifetime of supervised release were necessary to

protect the public:

Given the narrowness of its holding, Mitchell simply does not limit the district

court’s ability to consider a wide variety of “information concerning the background,

character, and conduct” of the defendant in determining an appropriate sentence, 18

U.S.C. § 3661; to “order a study of the defendant,” id. § 3552(b); and, therefore, to

consider the defendant’s refusal to cooperate in assessing what sentence is necessary

“to protect the public from further crimes of the defendant,” id. § 3553(a)(2)(C). In

fact, as Justice Scalia aptly observed, “Few facts available to a sentencing judge . .

. are more relevant to ‘the likelihood that [a defendant] will transgress no more, the

hope that he may respond to rehabilitative efforts to assist with a lawful future career,

[and] the degree to which he does or does not deem himself at war with his society’

than a defendant’s unwillingness to cooperate.” Mitchell, 526 U.S. at 339, 119 S. Ct.

1307 (Scalia, J., dissenting) (quoting Roberts v. United States, 445 U.S. 552, 558,

100 S. Ct. 1358, 63 L. Ed. 2d 622 (1980)).

Id. at 552.

The defendant in Dzul, another of the cases relied upon by the State, argued that his Fifth

Amendment right against self-incrimination was violated when the trial court denied him probation

based on his having maintained his innocence throughout his court-ordered psychosexual evaluation.

Dzul, 56 P.3d at 876. In rejecting his claim, the Nevada Supreme Court distinguished between a

penalty imposed and a benefit denied:

[W]e conclude that probation is a form of leniency and that Dzul was not penalized

in this case for refusing to admit guilt to the underlying offense during his

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psychosexual evaluations. Instead, he was not given a benefit that may be extended

to defendants who accept responsibility for their wrongs. Probation has been

regarded traditionally as a form of leniency. Moreover, “[t]he Fifth Amendment does

not insulate a defendant from all ‘difficult choices’ that are presented during the

course of criminal proceedings, or even from all choices that burden the exercise or

encourage waiver of the Fifth Amendment’s right against self-incrimination.”

Further, presenting a defendant with the choice between admitting responsibility with

a greater chance of receiving a favorable psychosexual evaluation or denying

responsibility with a greater risk of receiving an unfavorable evaluation is consistent

with the historical practice and understanding that a sentence imposed upon a

defendant may be shorter if rehabilitation looks more certain and that confession and

contrition are the first steps along the road to rehabilitation. Rehabilitation is a key

factor in extending leniency to convicted offenders.

Id. at 883 (footnotes omitted).

The grant of probation in Tennessee is, likewise, a benefit or privilege that may be conferred

upon a defendant if he meets his burden of establishing that he is a suitable candidate for such

largesse. State v. Tester, 879 S.W.2d 823, 828 (Tenn. 1994); State v. Correll, 626 S.W.2d 699, 701

(Tenn. 1982). At the time the crime was committed, Tennessee Code Annotated section

40-35-303(a) provided that a defendant shall be eligible for probation, subject to certain exceptions,

if the sentence imposed was eight years or less. Tenn. Code Ann. § 40-35-303(a) (2003). The

defendant is not automatically entitled to probation as a matter of law, see id. § 40-35-303(b), and

the burden is on the defendant to show that the denial of probation was improper, see State v.

Summers, 159 S.W.3d 586, 599-600 (Tenn. Crim. App. 2004) (citing Ashby, 823 S.W.2d at 169);

see also State v. Baker, 966 S.W.2d 429, 434 (Tenn. Crim. App. 1997) (stating that “[a] criminal

defendant seeking full probation bears the burden on appeal of showing the sentence actually

imposed is improper, and that full probation will be in both the best interest of the defendant and the

public”).

There is no bright line rule for determining when a defendant should be granted probation.

State v. Bingham, 910 S.W.2d 448, 456 (Tenn. Crim. App. 1995), overruled on other grounds by

State v. Hooper, 29 S.W.3d 1, 10-11 (Tenn. 2000). Every sentencing decision necessarily requires

a case-by-case analysis. Id. Factors to be considered include the circumstances surrounding the

offense, the defendant’s criminal record, the defendant’s social history and present condition, the

need for deterrence, the defendant’s potential for rehabilitation or treatment, and the best interest of

the defendant and the public. Souder, 105 S.W.3d at 607; State v. Goode, 956 S.W.2d 521, 527

(Tenn. Crim. App. 1997). A defendant’s failure to accept responsibility for his or her criminal

conduct reflects poorly on rehabilitative potential and is a basis for the denial of probation. See

State v. Zeolia, 928 S.W.2d 457, 463 (Tenn. Crim. App. 1996).

The defendant in Souder, who pled nolo contendere to one count of attempted sexual battery,

argued on appeal that the trial court erred by denying probation, in part, on the fact that he invoked

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his Fifth Amendment privilege against self-incrimination when asked by the prosecutor at sentencing

whether he had molested other children in the past. 105 S.W.3d at 604-05. We affirmed the denial

of probation, concluding that Mitchell does not prohibit a trial court from considering a defendant’s

invocation of his Fifth Amendment privilege against self-incrimination as part of its overall calculus

for determining suitability for probation:

The United States Supreme Court has recently made clear that a criminal

defendant retains his or her right to assert the Fifth Amendment privilege against self-

incrimination during sentencing. See Mitchell v. United States, 526 U.S. 314, 119

S. Ct. 1307, 143 L. Ed. 2d 424 (1999). Moreover, the sentencing court may draw no

adverse inference from the defendant’s silence in determining facts about the crime

which bear upon the severity of the sentence. Id., 526 U.S. at 316-17, 119 S. Ct.

1307. However, the Court specifically declined to opine as to whether the

defendant’s silence may bear upon his or her lack of remorse or acceptance of

responsibility for the crime in setting the defendant’s sentence. Id., 526 U.S. at 330,

119 S. Ct. 1307.

In the case before us, the trial court did not draw any adverse inferences about

the facts of the crime from the Defendant’s refusal to answer the State’s question.

Rather, the trial court included the Defendant’s silence in its overall calculus for

determining whether the Defendant was a suitable candidate for probation. As set

forth above, a criminal defendant’s rehabilitative potential is a factor to be considered

in the grant or denial of probation. Candor is a relevant factor in assessing a

defendant’s potential for rehabilitation, see State v. Dowdy, 894 S.W.2d 301, 306

(Tenn. Crim. App. 1994), and the lack of candor militates against the grant of

probation. See, e.g., State v. Kendrick, 10 S.W.3d [650,] 656 [(Tenn. Crim. App.

1999)]. The burden of proving suitability for probation rests with the defendant.

Tenn. Code Ann. § 40-35-303(b). Accordingly, we conclude that the trial court did

not infringe upon the Defendant’s rights under the Fifth Amendment to the United

States Constitution, or Article I, Section 9 of the Tennessee Constitution, when it

relied, in part, on the Defendant’s assertion of those rights at sentencing, in order to

deny probation. This issue is, therefore, without merit.

Id. at 608.

The defendant seeks to distinguish his case by pointing out that, unlike the defendants in

Souder, Dzul, and Kennedy, he made no admissions of guilt, did not testify at his sentencing hearing,

and never agreed to participate in the psychosexual examination. He contends that “he properly

asserted his [Fifth] Amendment privilege against self-incrimination and made no statements, and

therefore under Mitchell . . . his silence cannot be used against him.” The distinction the defendant

draws, however, has no bearing on the holding in Mitchell. As previously stated, Mitchell held

simply that a trial court may not draw any adverse inferences from a defendant’s silence in

determining facts about the crime which bear upon the severity of the sentence. 526 U.S. at 330, 119

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S. Ct. at 1316. Here, the trial court drew no adverse inferences about the crime from the defendant’s

silence. Instead, the court concluded that it had no choice but to deny probation because the

defendant had not undergone the required psychosexual evaluation and presented no proof regarding

alternative treatment options or his risk to reoffend:

The more troubling aspect of this is the nature in which he should serve this

sentence. Now, [the defendant] has challenged the law in the State of Tennessee that

requires once a person is convicted of a sexual offense that they undergo a

psychosexual evaluation to determine the appropriate manner of service of the

sentence, whether it be probation, and if it is probation whether there should be some

particular treatment modalities that are put in place to address whatever potential

issues there are.

Now, [the defendant] has resisted undergoing that psychosexual evaluation

based on the fact that he claims that it’s unconstitutional for him to go in and

basically incriminate himself. Of course, that is not the law in the State of

Tennessee. And I understand that you intend to challenge that. And I encourage you

to do that. But without the advantage of knowing what, if any, appropriate treatment

would be appropriate for [the defendant] I feel compelled to order that he serve this

sentence, because I don’t know what the alternatives are. I have no alternatives set

before me whether some treatment that would be appropriate could be put in place.

Whether he’s a high risk to reoffend or a low risk to reoffend. All of these things that

a professional is able to glean from their examination and interview with the

defendant.

So I think based on the fact that he has chosen -- which he has the right to do

-- chosen not to undergo this psychosexual evaluation it leaves this Court in a

position of not having any options but to order that this sentence be served in the

State Department of Corrections.

We conclude that the record supports the denial of probation. Because the defendant elected

not to undergo the psychosexual evaluation and presented no other proof at the sentencing hearing,

he failed to meet his burden of demonstrating that he was a suitable candidate for probation. We,

therefore, affirm the trial court’s denial of the defendant’s request for probation. On appeal, the

defendant has asserted that if this court rules against him on his constitutional claims as to

submitting to the sex offender evaluation, that we then remand the matter so that he may submit to

the evaluation and be resentenced. As we have stated, the defendant sought an interlocutory appeal,

prior to his sentencing, presenting this same question. This court denied the interlocutory appeal.

If we remanded this matter so that the defendant could be resentenced, the effect would be the same

as if the interlocutory appeal had been granted. Accordingly, we deny this request.

CONCLUSION

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Based on the foregoing authorities and reasoning, we affirm the defendant’s conviction but

reduce his sentence to one year.

___________________________________

ALAN E. GLENN, JUDGE

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