State v. Joey Salcido

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

October 17, 2000 Session

STATE OF TENNESSEE v. JOEY L. SALCIDO

Direct Appeal from the Circuit Court for Giles County

No. 8381 Jim T. Hamilton, Judge

No. M1999-00501-CCA-R3-CD - Filed March 8, 2001

Defendant Joey L. Salcido was indicted by the Giles County Grand Jury for three counts of incest

and three counts of rape of a child. Following a jury trial, Defendant was convicted of three counts

of aggravated sexual battery as a lesser-included offense of child rape and acquitted of the charges

of incest. On March 15, 1999, the trial court sentenced Defendant as a violent 100% offender to a

term of twelve years for each of his three convictions and ordered that all sentences be served

consecutively. On April 15, 1999, thirty-one days after Defendant’s judgment was entered,

Defendant filed an untimely motion for new trial. The motion was nevertheless heard on April 19,

1999 and denied on April 20, 1999. On April 23, 1999, Defendant filed a notice of appeal which

was also untimely due to the late filing of Defendant’s motion for new trial. On May 25, 2000,

Defendant filed a motion to waive the timely filing of his notice to appeal and on June 7, 2000, this

Court granted Defendant’s motion. In this appeal Defendant raises the following issues: (1) whether

the Defendant’s conviction of aggravated sexual battery, an offense which was neither charged in

the indictment nor a lesser-included offense of the offenses charged, was error; (2) whether,

assuming aggravated sexual battery is determined to be a lesser-included offense of child rape, the

trial court erred in its jury instruction regarding the mental state necessary to convict him; (3)

whether the trial court erred when it admitted certain evidence over Defendant’s objections; (4)

whether the cumulative effect of the trial court’s errors renders the trial fundamentally unfair so as

to offend Defendant’s due process guarantees; and (5) whether the trial court erred when it imposed

consecutive sentences. Defendant asserts that his first issue concerns subject matter jurisdiction and,

therefore, must be heard by this Court pursuant to Tenn. R. App. P. 13(b). Defendant also urges this

Court to exercise its discretion under Tenn. R. Crim. P. 52(b) or Tenn. R. App. P. 13(b) and consider

the remaining four issues. After a thorough review of the record and applicable law, we find no

errors requiring reversal and affirm the judgment of the trial court.

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

THOMAS T. WOODALL , J., delivered the opinion of the court, in which NORMA MCGEE OGLE and

ROBERT W. WEDEMEYER , JJ., joined.

John E. Herbison, Nashville, Tennessee (on appeal) and Claudia Jack, District Public Defender; and

Robert H. Stovall, Jr., Assistant Public Defender, (at trial) for the appellant, Joey L. Salcido.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General;

Mike Bottoms, District Attorney General; Richard Dunavant, Assistant District Attorney; and Robert

C. Sanders, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

I. Facts

Defendant was charged with committing sexual offenses against his daughter, B.S., during

the months of October and November 1996. (The victim will be referred to herein by her initials.)

Tracy Salcido, the ex-wife of Defendant and mother of B.S., testified that she and Defendant had

separated but were still married when the alleged incidents of sexual abuse occurred. In the fall of

1996, B.S. was six years old and spent nearly every weekend with her father. Tracy testified that,

on a typical weekend, B.S. would stay with Defendant from Friday evening until Monday morning

when she left for school. As a rule, B.S. arrived home “fine and happy” after weekends with her

father. Tracy noticed nothing strange or unusual in B.S.’s behavior during the time of the alleged

abuse and had no personal knowledge that Defendant engaged in any deviant conduct with B.S. On

only one occasion did B.S. ask to go home early from a weekend visit with Defendant. Defendant

had been drinking too much that day, and Tracy believed that this was the reason B.S. made the

request. Tracy did not take B.S. away from Defendant on this occasion, however, and later, she

arrived at home appearing normal, happy, and cheerful.

Tracy testified that after she and Defendant separated, Defendant’s cousin, Monica Dollar,

and her family (Monica’s husband and four sons) moved into Defendant’s double-wide trailer and

lived with him. B.S. and Monica developed a close relationship, and B.S. enjoyed playing with the

four boys during her visits with Defendant.

On November 12, 1996, B.S. informed Tracy that something had occurred between B.S. and

Defendant. Tracy did not testify as to the specifics of her child’s allegations, stating only that B.S.’s

complaint was of a sexual nature and that it involved Defendant. As a result of B.S.’s complaint,

Tracy filed a report with the Department of Children’s Services and started divorce proceedings to

protect her daughter. Divorce papers were delivered to Defendant at work on the day before

Thanksgiving. Defendant found Tracy later that day; he was very angry and wanted to know why

she had filed for divorce. Tracy had promised Defendant that she would talk with him before she

took any steps toward divorce. Tracy replied that she made her promise to Defendant “before [he]

did what [he] did to B.S.” At this, Defendant dropped to his knees, grabbed his head, and started

crying, “Oh my God. What have I done? What have I done?”

On cross-examination, Tracy testified that Defendant’s drinking problem was one of the

reasons she left him. Defendant became easily agitated when drinking, and he would say and do

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things that were unusual for him when he was sober. Tracy testified that when Defendant drank “he

grew horns.” B.S. had also expressed concern regarding Defendant’s drinking and told Tracy that

she wanted him to get help. During redirect examination, the prosecutor asked Tracy whether

Defendant ever physically abused her during the course of their marriage. Tracy answered, “Yes,

he did.”

B.S., Defendant’s daughter, was nine years old at the time of the trial. B.S. testified that she

recalled spending weekends with Defendant when she was six. For instance, B.S. recalled that one

evening when she was too tired to finish watching the Lion King movie, she went to bed. Afterward,

Defendant came to bed, took off both of their clothes, then “got on top of [her] and went up and

down.” B.S. testified that she told her mother about this incident and that similar things had

occurred on the two preceding weekend visits. On the previous occasions, B.S. was asleep but woke

up when Defendant began to undress her. Defendant was usually naked by then. B.S. testified that

after Defendant got on top of her, he put his “private” part, or “pee-pee,” on her “pee-pee.” B.S.

claimed that Defendant put his private part “a little in” and that this hurt her. B.S. would sometimes

cry and holler for help, but nobody came. B.S. also asked Defendant to stop, but he would not. B.S.

testified that Defendant treated her this way a total of fourteen times, but she was too frightened to

tell anyone. B.S. finally confided in her mother because she wanted her mother to find help for her

father.

Michael Chapman, a criminal investigator for the Giles County Sheriff’s Department,

testified that he investigated the allegations against Defendant in November 1996. Chapman

investigated all of the child abuse cases and had done so for a number of years. In Defendant’s case,

Chapman spoke first with B.S. in the company of Ms. Pierce, a member of the Department of

Children’s Services. Thereafter, during the months of January and March 1997, Chapman spoke

with Defendant three times concerning the allegations against him. Defendant claimed to have no

memory of doing the things Chapman said he was accused of and, since he could not remember what

happened, he could neither deny nor admit that the incidents occurred. Chapman did not interview

any of the other persons living in Defendant’s trailer during the time of the alleged offenses.

Chapman concluded his investigation, then presented the matter to the Grand Jury of Giles County

for consideration. At this time, the police discovered that Defendant had quit his job and left the

state. Three months later, Defendant was apprehended in Florida.

Julie Roseoff Williams testified that she worked as a nurse practitioner for “Our Kids Center”

in Nashville, Tennessee. One of the Center’s jobs was to perform medical evaluations on children

who were suspected victims of sexual abuse. The state used the medical reports in the prosecution

of offenders. In November 1996, Williams examined B.S. but discovered nothing abnormal. No

physical signs of penetration such as redness, swelling, or bruising/tearing of the hymen were

evident. Williams testified that these findings did not negate or support the possibility that

penetration occurred, however, because too much time had passed (thirteen days) since the last

incident of abuse. Williams also testified that, according to a report prepared by one of the social

workers at the Center, B.S. exhibited none of the typical emotional or psychological “flags” which

indicated child abuse, but not all children exhibit behavioral signs. In sum, B.S.’s examination

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revealed no physical, psychological or emotional evidence of abuse. The State rested its case-in-

chief at the conclusion of Ms. Williams’ testimony.

Shinar Hurd, a case manager for the Department of Children’s Services, was the first witness

called on behalf of Defendant. Hurd testified that on November 13, 1996, she met with B.S. and

Tracy, her mother, to begin an investigation into Tracy’s allegations of abuse against Defendant. The

interview with B.S. was taped, and a transcript was prepared which Hurd brought with her to court.

When Hurd initially asked B.S. about sexual incidents she had experienced with her father, B.S.

indicated only one but could not tell her when it happened. Later in the interview, B.S. indicated that

multiple abuses occurred on several occasions.

During the trial, the State requested permission to introduce the entire transcript of Hurd’s

interview with B.S. into evidence. The trial court granted the State’s request over Defendant’s

objections. The transcript was read to the jury and revealed, in relevant part, a discussion between

Hurd and B.S. concerning B.S.’s understanding of the difference between “good” and “bad” touches,

e.g., that “bad touches” occur when a person touches another person’s private parts. B.S. disclosed

that she had experienced “bad touches” at her father’s house. B.S. told Hurd that “when [Defendant]

was drunk ... he touched me in my private parts.” B.S. further informed Hurd that Defendant would

take off all his clothes and start “humping” her. Defendant put his “pee-pee” in hers a “bunch of

times” and refused to stop even when she cried. B.S. told Hurd that she felt “hardness” and that his

“pee-pee” was “long.”

Monica Dollar, Defendant’s cousin, testified that she had a close relationship with both

Defendant and B.S. Ms. Dollar and her family lived with Defendant in his trailer during the autumn

months of 1996 when the alleged sexual abuse of B.S. took place. Ms. Dollar testified that

Defendant slept on the couch every night and that she had never discovered Defendant in bed with

B.S. Ms. Dollar claimed that she would have heard shouts or calls for help if they had occurred.

Instead, B.S. always seemed to be a happy child, never hurt or upset in any way. Ms. Dollar testified

that Defendant liked to drink a lot of beer and that, sometimes, he would do or say things while

drinking that he would not remember the next day.

John Dollar, the husband of Defendant’s cousin, testified that he and his family had resided

in Defendant’s trailer during the time that the alleged sexual incidents occurred. Dollar testified that

B.S. would sleep in Defendant’s bedroom on the weekends she came to visit but that Defendant

always slept on the couch, whether or not B.S. was there. Dollar further testified that he had never

discovered Defendant in the same bedroom with B.S. or heard B.S. crying for help. If B.S. had

screamed, Dollar would have heard her because the trailer walls were quite thin. Further, Dollar

never noticed that B.S. appeared to walk funny or be upset or hurt at any time during her visits.

II. Untimely Motion for New Trial

As a preliminary matter, we observe that most of the issues presented in this appeal have

been waived by the untimely filing of Defendant’s motion for new trial.

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In Tennessee, a motion for new trial must be filed “within thirty days of the date the order

of sentence is entered.” Tenn. R. Crim. P. 33(b). This is a mandatory filing period which cannot be

extended. Tenn. R. Crim. P. 45(b). The trial court does not possess jurisdiction over an untimely

filed motion for new trial. State v. Martin, 940 S.W.2d 567, 569 (Tenn. 1997) (citations omitted).

And, “[t]he trial judge's erroneous consideration [and] ruling on a motion for new trial not timely

filed ... does not validate the motion." Id. (citing State v. Dodson, 780 S.W.2d 778, 780 (Tenn.

Crim. App. 1989)). An untimely filed motion for new trial “not only results in the appellant losing

the right to have a hearing on the motion, but it also deprives the appellant of the opportunity to

argue on appeal any issues that were or should have been presented in the motion for new trial.” Id.

(citations omitted).

On appeal, waiver of issues not presented in a timely motion for new trial occurs pursuant

to Tenn. R. App. P. 3(e), which states:

[I]n all cases tried by a jury, no issue presented for review shall be

predicated upon error in the admission or exclusion of evidence, jury

instructions granted or refused, misconduct of jurors, parties, or

counsel, or other action committed or occurring during the trial of the

case, or other ground upon which a new trial is sought, unless the

same was specifically stated in a motion for new trial; otherwise such

issues will be treated as waived.

Counsel’s untimely filing of a motion for new trial is imputed to the appellant for the purpose of

waiver. See Dodson, 780 S.W.2d at 780; State v. Williams, 675 S.W.2d 499, 501 (Tenn. Crim. App.

1984).

The failure to timely file a motion for new trial does not necessarily deprive this Court of

jurisdiction, however. Dodson, 780 S.W.2d at 780. Instead, our jurisdiction attaches with the

timely filing of a notice of appeal. Tenn. Code Ann. § 40-35-401 (1997). A notice of appeal is

required to be filed with the clerk of the trial court within thirty days after the entry of the judgment

or order from which relief is sought. Tenn. R. app. P. 4(a); State v. Hamlin, 655 S.W.2d 200 (Tenn.

Crim. App. 1983). The time for filing a notice of appeal is tolled by the timely filing of a post-trial

motion for judgment of acquittal, new trial, or arrest of judgment. Tenn. R. App. P. 4(c). In the

event that the time for filing is not tolled and an untimely notice of appeal results, this Court may

nevertheless waive the timely filing of the notice of appeal and address issues which would result

in outright dismissal of the prosecution against the accused. See Dodson, 780 S.W.2d at 780;

Williams, 675 S.W.2d at 501. In addition, this court may review the record for plain errors when

necessary to do substantial justice. Tenn. R. Crim. P. 52(b).

In the instant case, the trial court entered Defendant’s judgment order setting forth his

sentences on March 15, 1999. Thereafter, Defendant filed an untimely motion for new trial on April

15, 1999, more than 30 days after his judgment was entered. Since Defendant failed to timely file

his motion for new trial, the time for filing the notice of appeal was not tolled pursuant to Tenn. R.

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App. P. 4(c). Hence, Defendant’s notice of appeal filed April 23, 1999 was not timely. There are

two remedies available for correcting this procedural fault. An appellant may seek post-conviction

relief pursuant to Tenn. Code Ann. § 40-30-202, and/or file a motion in this Court requesting that

the timely filing of a notice of appeal be waived in the interest of justice. Tenn. Code Ann. § 27-1-

123 (2000); Tenn. R. App. P. 4(a). The record reveals that Defendant filed a motion to waive timely

filing of his notice of appeal on May 25, 2000 and this Court granted Defendant’s motion. We note

that Defendant’s issue that he was convicted of an offense not charged in the indictment is one

which, if meritorious, would result in a reversal and dismissal of the charges. Therefore, it is not

required to be included in a timely filed motion for new trial to be considered on appeal. See State

v. Keel, 882 S.W.2d 410, 416 (Tenn. Crim. App. 1994) (citations omitted). Nor is the sentencing

issue raised by Defendant required to be raised in a motion for new trial in order to be reviewed on

appeal. See State v. Patterson, 966 S.W.2d 435, 440 (Tenn. Crim. App. 1997); Tenn. R. App. P.

3(e). Therefore, we will review the merits of the issues concerning conviction for an offense not

charged in the indictment and sentencing as presented by Defendant. However, the remainder of

Defendant’s issues which, if meritorious, would result in the granting of a new trial and not dismissal

of the prosecution will be waived unless we find that they constitute plain error. Tenn. R. App. P.

3(e); Tenn. R. Crim. P. 52(b); State v. Caughron, 855 S.W.2d 526, 538 (Tenn. 1993).

III. Indictment

Defendant contends that he is entitled to a reversal of his conviction for aggravated sexual

battery because this offense was neither charged in the indictment nor is it a lesser-included offense

of rape of a child, the offense charged, according to our supreme court’s criteria for lesser-included

offenses as set forth in State v. Burns, 6 S.W.3d 453 (Tenn. 1999). We disagree.

The State argues that Defendant was properly convicted of aggravated sexual battery. It

asserts that, although Defendant’s conviction occurred prior to the supreme court’s decision in

Burns, aggravated sexual battery was well-recognized as a lesser-included offense of rape of a child

at the time of Defendant’s arrest and trial. Thus, the State argues, the indictment afforded Defendant

sufficient notice of the charges against him, including aggravated sexual battery, and he was not

deprived of his due process rights.

Aggravated sexual battery requires unlawful “sexual contact” with a victim less than thirteen

(13) years of age. See Tenn. Code Ann. § 39-13-504(4) (1997). Rape of a child requires unlawful

“sexual penetration” of a victim less than thirteen (13) years of age. See id. § 39-13-522. “Sexual

contact” includes the “intentional touching of the victim's, the defendant's, or any other person's

intimate parts, or the intentional touching of the clothing covering the immediate area of the victim's,

the defendant's, or any other person's intimate parts, if that intentional touching can be reasonably

construed as being for the purpose of sexual arousal or gratification”; and, “sexual penetration”

means “sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however

slight, of any part of a person's body or of any object into the genital or anal openings of the victim's,

the defendant's, or any other person's body, but emission of semen is not required.” Id. § 39-13-

501(6), (7).

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The governing standard for determining whether a lesser offense is a lesser-included of

another was established in State v. Burns, 6 S.W.3d 453 (Tenn. 1999). First, we hold that Burns

applies to Defendant’s case. The Burns test has been applied retroactively numerous times. See

State v. Stokes, 24 S.W.3d 303 (Tenn. 2000) (Burns applied to determine lesser-included offense

in case which was in appellate “pipeline” prior to release of supreme court’s Burns opinion); State

v. Jumbo Kuri, No. M1999-00638-CCA-R3-CD, 2000 WL 680373 at *5 (Tenn. Crim. App.,

Nashville, May 25, 2000) no perm. to app. filed (Burns has been applied too many times for its

retroactive effect to cases on direct appeal to be seriously questioned). Hence, the status of

Defendant’s conviction offense as a lesser-included according to pre-Burns standards is not

controlling.

Next, we examine whether aggravated sexual battery is a lesser-included offense of rape of

a child under Burns. Our standard of review of this mixed question of law and fact is de novo with

no presumption of correctness. See Burns, 6 S.W.3d at 461. The Burns test is designed so that

meeting the requirements of any one of the three parts is sufficient to find a lesser-included offense.

However, we shall confine discussion of this matter to determining whether aggravated sexual

battery is a lesser-included offense of rape of a child under part (b). Part (b) of the Burns test

requires that the elements of the lesser-included offense be included in the elements of the charged

offense, differing only in that the lesser-included offense contains a statutory element or elements

establishing (1) a different mental state indicating a lesser kind of culpability; and/or (2) a less

serious risk of harm to the person, property or public interest. Id. at 466-67.

At the outset, we note that the elements of the lesser-included offense, aggravated sexual

battery, are nearly identical to the elements of the charged offense, rape of a child. Aggravated

sexual battery requires unlawful “sexual contact” with a victim less than thirteen (13) years of age.

Rape of a child requires unlawful “sexual penetration” of a victim less than thirteen (13) years of

age. The sole difference between the two offenses lies in the accused’s contact with the victim:

“sexual contact” versus “sexual penetration.” Defendant argues that the definition for “sexual

contact,” i.e., intentional touching for the purpose of sexual arousal or gratification, constitutes an

element of aggravated sexual battery establishing both (1) a mental state indicating a greater, not

lesser, culpability and (2) a greater risk of harm under part (b) of the Burns test and, further, that this

precludes this Court from finding that aggravated sexual battery is a lesser-included offense of rape

of a child.

Unpersuaded by Defendant’s argument, we continue to believe as we did in State v. Gary J.

Greer that “implicit in the Burns decision is the conclusion that the intent to touch a victim’s intimate

parts for the purpose of sexual arousal constitutes a mental state reflecting a lesser degree of

culpability than the reckless, knowing, or intentional commission of sexual penetration for any

reason.” State v. Gary J. Greer, No. M1998-00789-CCA-R3-CD, 2000 WL 284180 at *7, Davidson

County (Tenn. Crim. App., Nashville, March 17, 2000), perm. to app. pending. Aggravated sexual

battery is, therefore, a lesser-included offense of rape of a child under part (b) of the Burns test. See

State v. Douglas Bryan Boruff, No. E1999-00274-CCA-R3-CD, 2000 WL 284186 at *4, Blount

County (Tenn. Crim. App., Knoxville, March 17, 2000), perm to app. pending (“[a]ggravated sexual

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battery is clearly a lesser-included offense of child rape”). Further, we find that Defendant’s

indictment for rape of a child was constitutionally sufficient because it supplied Defendant with

notice of the charges which he must defend and adequate basis for entry of a proper judgment of

conviction. Defendant is not entitled to relief on this issue.

IV. Plain Error

We now consider Defendant’s issues concerning the trial court’s jury instruction and its

admission of evidence which Defendant claims constitute plain error under Tennessee Rule of

Criminal Procedure 52(b). Rule 52(b) recognizes “plain error” and provides that “[a]n error which

has affected the substantial rights of an accused may be noticed at any time, even though not raised

in the motion for a new trial or assigned as error on appeal, in the discretion of the appellate court

where necessary to do substantial justice.” Tenn. R. Crim. P. 52(b); see also Tenn. R.App. P. 13(b).

In State v. Adkisson, 899 S .W.2d 626 (Tenn. Crim. App. 1994), our court set forth the following

factors to consider when determining whether an error constitutes “plain error”:

(a) the record must clearly establish what occurred in the trial court;

(b) a clear and unequivocal rule of law must have been breached;

(c) a substantial right of the accused must have been adversely

affected;

(d) the accused did not waive the issue for tactical reasons; and

(e) consideration of the error is "necessary to do substantial justice."

Id. at 641-42. Clearly, before an error may be recognized pursuant to Rule 52(b), Tenn.R.Crim.P.,

the error must be “plain” and it must affect a “substantial right” of the accused. These terms are not

self-defining. Id. at 639. The Adkisson court continued:

The word “plain” “is synonymous with ‘clear’ or, equivalently

‘obvious’.” A “substantial right” is a right of “fundamental

proportions in the indictment process, a right to the proof of every

element of the offense, and is constitutional in nature.” In short, a

plain error is not just an error that is conspicuous. Rather, it is an

especially egregious error that strikes at “the fairness, integrity or

public reputation of judicial proceedings.”

Id. Rule 52(b), Tenn.R.Crim.P., makes it clear that the plain error rule is not a commonplace

remedy. The intention of the rule is to serve the ends of justice. Therefore, it is invoked “only in

exceptional circumstances [where necessary] to avoid a miscarriage of justice.” Id. (quoting United

States v. Gerald, 624 F.2d 1291, 1299 (5th Cir. 1980)). Appellate courts are advised to use it

sparingly in recognizing errors that have not been raised by the parties or have been waived due to

a procedural default. Id.

“Because the Adkisson test provides a clear and meaningful standard for considering whether

a trial error rises to the level of plain error in the absence of an objection,” the Tennessee Supreme

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Court formally adopted this test when reviewing a record for plain error. State v. Smith, 24 S.W.3d

274, 282-83 (Tenn. 2000). In doing so, it re-emphasized that the presence of all five factors must

be established by the record before the existence of plain error can be recognized and that complete

consideration of all the factors is not necessary when it is clear from the record that at least one of

the factors cannot be established. Id. The supreme court further stated that the “‘plain error’ must

[have been] of such a great magnitude that it probably changed the outcome of the trial.” Id. (citing

Adkisson, 899 S.W.2d at 642).

A. Jury Instruction

Defendant contends that the trial court erred in its jury instruction regarding the mental state

necessary to convict him for the crime of aggravated sexual battery. Defendant argues that the jury

instructions stated that, in order to convict him, it was only necessary for the jury to find that

Defendant acted either intentionally, knowingly, or recklessly when, in fact, it was imperative for

the jury to find that Defendant acted intentionally with respect to his sexual contact with the victim.

Defendant submits that this error is fundamental, plain, and so prejudicial that justice demands he

receive a new trial.

Under the United States and Tennessee Constitutions, a defendant has a constitutional right

to trial by jury. U.S. Const. amend. VI; Tenn. Const. Art. I, § 6. In Tennessee, the right to trial by

jury is the right guaranteed to every litigant in jury cases to have the facts involved tried and

determined by twelve jurors. State v. Bobo, 814 S.W.2d 353, 356 (Tenn. 1991) (citing Willard v.

State, 130 S.W.2d 99 (1939)). It follows that the defendant has a right to have “every issue of fact

raised by the evidence and material to his defense submitted to the jury upon proper instructions by

the judge.” State v. Brown, 836 S.W.2d 530, 553 (Tenn.1992) (citations omitted).

In the instant case, the trial court’s initial instructions to the jury were as follows:

For you to find the defendant guilty of this offense, the State must

have proven, beyond a reasonable doubt, the existence of the

following essential elements. One, the defendant had unlawful sexual

contact with the alleged victim, in which the defendant intentionally

touched the alleged victim’s intimate parts or the clothing covering

the immediate area of the alleged victim’s intimate parts. And two,

that the alleged victim was less than 13 years of age. And three, that

the defendant acted either intentionally, knowingly, or recklessly.

Defendant argues that these instructions confused the jury, as shown by the fact that the jury initially

returned with a verdict for a crime which does not exist: reckless sexual battery. However, the trial

court had the following discussion with the jury after it received the improper verdict:

THE COURT: You say that you find the defendant guilty of reckless

sexual battery, innocent of rape and incest. When you say reckless

sexual battery, do you mean aggravated sexual battery? One of the

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other alternatives that you had? You had rape of a child, incest, and

aggravated sexual battery.

THE JURORS: [No response.]

THE COURT: That was the only three choices that you had. Do you

need to go back and talk some more?

THE JURORS: [No response.]

THE COURT: You didn’t have reckless–well, there is no such

charge as reckless sexual battery. You have aggravated sexual battery

in this case.

A JUROR: We read it in there.

A JUROR: Under aggravated, there was intentionally, knowingly,

and recklessly.

THE FORELADY: We considered intentionally and then we

considered knowingly.

A JUROR: Then we settled with reckless.

THE COURT: Those are definitions that have to be used in defining

that charge. That’s not a charge, reckless sexual battery. Aggravated

sexual battery is the charge.

A JUROR: Do you want to go back and talk?

A JUROR: No. I don’t.

A JUROR: Yes. I think we do need to go back and talk.

THE COURT: Yeah, I think you do. Take a look at that charge when

you get back there.

After the jury was sent back for further deliberation, it returned nine minutes later with a verdict

which found Defendant guilty of three counts of aggravated sexual battery and not guilty of rape of

a child and incest.

In State v. Howard, this Court addressed a very similar issue regarding jury instructions. The

trial court had provided incorrect instructions on the elements of aggravated sexual battery and

sexual battery. Although the defendant did not raise the issue at trial or on appeal, we decided to

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address the issue in view of the remand (based on ground that trial court’s failure to instruct on a

lesser-included offense deprived defendant of right to trial by jury). State v. Howard, 926 S.W.2d

579, 587 (Tenn. Crim. App. 1996) (overruled on other grounds in State v. Williams, 977 S.W.2d 101

(Tenn. 1998)).

At the conclusion of the proof at the trial in Howard, the trial court instructed the jury that

aggravated sexual battery included the following elements: (1) the defendant had unlawful sexual

contact with the alleged victim or the alleged victim had unlawful sexual contact with the defendant;

(2) the alleged victim was less than thirteen (13) years of age; and (3) the defendant acted

intentionally, knowingly or recklessly. Id. (emphasis added). This was an important issue because

this Court had previously held that the various elements of aggravated sexual battery contained

different culpable mental states within the same offense. See id. (citing State v. Parker, 887 S.W.2d

825, 827 (Tenn. Crim. App. 1994)). More specifically, we had noted that our statutes plainly

provided that “sexual contact” required “intentional touching” of the victim’s intimate parts or

clothing for the purposes of “sexual arousal or gratification.” Tenn. Code Ann. §§ 39-13-501(6),

(504) (1997). The definition of aggravated sexual battery, however, was silent regarding the

culpable mental state as to the victim’s age. Thus, we determined that under Tenn. Code Ann. § 39-

11-301(c), mere reckless conduct applied (as well as intentional or knowing) to the element

regarding age. Tenn. Code Ann. § 39-11-301(c) (1997); Howard, 926 S.W.2d at 587. We held that

when an offense has different mens rea for separate elements, the trial court has a duty to set forth

the mental state for each element clearly so that the jury can determine whether the state has met its

burden of proof. Howard, 926 S.W.2d at 587.

Similarly to Howard, the trial court in the instant case may arguably have erred when it gave

the jury unclear instructions. Next, we must determine whether the error, if any, rose to the level of

plain error according to the factors set forth in Smith. Recognition of an error does not result in

automatic reversal of a trial court’s judgment since the error may be harmless. Adkisson, 899

S.W.2d at 626. After careful review of the record, we find that any error in Defendant’s jury

instructions did not adversely affect a substantial right of Defendant and, therefore, did not rise to

the level of plain error under Tenn. R. Crim. P. 52(b).

First, we observe that the jury instruction given in Howard is distinguishable from the

charge given in Defendant’s case. From the quoted language above, we observe that part (1) of the

instruction concerning “sexual contact” in Howard omitted any mention of the requisite mens rea.

The trial court in Howard did not give an instruction on the culpable mental state until part (3),

which could be logically construed, then, to pertain to the entire instruction which preceded it. By

contrast, the instruction given in Defendant’s case (regarding “sexual contact”) required the jury to

find that “the defendant had unlawful sexual contact with the alleged victim, in which the defendant

intentionally touched the alleged victim’s intimate parts ....” In the latter case, the word “intentional”

clearly attached to the finding of “sexual contact.” Granted, there is an indication that the jury in

Defendant’s case may have been confused. However, the trial judge had the opportunity to clear up

any confusion prior to the verdict. Aware that reckless sexual battery was “not a charge,” the jury

then retired to deliberate further and returned a verdict of guilty for aggravated sexual battery.

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We are guided by the decision of our supreme court in State v. Garrison, ____ S.W.3d ____

(Tenn. 2000). In Garrison, the trial court had omitted certain statutory language in its instructions

to the jury. On appeal, this Court found that the jury charge omitted an essential element of the

offense, reversed the conviction, and granted the defendant a new trial. The Tennessee Supreme

Court reversed. While the supreme court agreed that the defendant’s rights were violated, it

considered the erroneous instruction to be harmless error.

Although the jury instruction issue before the supreme court concerned an omission rather

than an incorrect instruction, we believe the remarks made by the supreme court are helpful in

evaluating the significance of the error before us. The supreme court remarked that a very limited

class of errors have been found to be “structural,” hence subject to automatic reversal. Garrison,

_____ S.W.3d at _____. Relying on Neder v. United States, the Garrison court found the following

language persuasive:

[A] jury instruction that omits an element of the offense ... differs

markedly from the constitutional violations we have found to defy

harmless-error review. Those cases, we have explained, contain a

“defect affecting the framework within which the trial proceeds,

rather than simply an error in the trial process itself.” Such errors

affect the entire process and necessarily render a trial fundamentally

unfair. Put another way, these errors deprive defendants of “basic

protections” without which “a criminal trial cannot reliably serve its

function as a vehicle for determination of guilt or innocence ... and

no criminal punishment may be regarded as fundamentally fair....

Id. at ___ (quoting Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999))

(emphasis added). Concluding its analysis, the supreme court determined that “the integrity of the

jury as a fact-finding body was not disturbed” but, rather, an impartial jury was required to make its

findings pursuant to imperfect instructions by the trial court. Id. at ___.

In Defendant’s case, we similarly find that the jury instruction error, if any, had no impact

on the integrity of the final verdict. When faced with the fact that “reckless sexual battery” was not

a convictable offense, Defendant’s jury reviewed the instructions and decided that the evidence was

sufficient to establish guilt beyond a reasonable doubt for the crime of aggravated sexual battery.

The instructions given to Defendant’s jury included “intentional” in the definition which pertained

to the element of sexual contact. We believe that Defendant was not deprived of “basic protections”

without which “a criminal trial cannot reliably serve its function as a vehicle for determination of

guilt or innocence . . . .” Id. at ___. Defendant is not entitled to relief on this issue.

B. Admissibility of Evidence

Defendant contends that the trial court erred when it admitted certain evidence over

Defendant’s objections. Specifically, Defendant alleges that the trial court committed prejudicial

and reversible error when it permitted the mother of the victim (Defendant’s ex-wife) to testify

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regarding prior bad acts committed by Defendant and, again, when it allowed a prior statement by

the victim to be read into evidence at trial.

Admissibility, relevance and competency of expert testimony are matters that largely rest

within the discretion of the trial court. See State v. Ballard, 855 S.W.2d 557, 562 (Tenn. 1993). The

admission or exclusion of evidence at trial will not be disturbed on appeal unless discretion was

arbitrarily exercised or abused. See State v. Begley, 956 S.W.2d 471, 475 (Tenn. 1997); State v.

Gray, 960 S.W.2d 598, 606 (Tenn. Crim. App. 1997) (citing State v. Hayes, 899 S.W.2d 175, 183

(Tenn. Crim. App. 1995); State v. Griffis, 964 S.W.2d 577 (Tenn. Crim. App. 1997).

Defendant’s first allegation of error stems from the fact that the trial court permitted Tracy

Salcido, Defendant’s ex-wife and mother of the victim, to testify regarding prior bad acts committed

by Defendant. Defendant claims that allowing Tracy to testify that Defendant had previously abused

her physically during his bouts of drinking constituted plain and prejudicial error.

Tracy was called to testify as a witness for the State. During the trial, the following

testimony was elicited and forms the sole basis for Defendant’s complaint regarding this matter:

DEFENSE (cross-examination): When you left your husband, in the

first part of June, was it basically over his drinking?

TRACY: His drinking and how–what a different man he turned into

when he dranked [sic].

DEFENSE: And Joey had admitted that he had a drinking problem,

had he not?

TRACY: Yes.

DEFENSE: And he was always able to hold down a job, was he not?

TRACY: Yes, he was.

DEFENSE: He always worked 40 hours a week?

TRACY: Yes.

DEFENSE: But Joey, just about every weekend, he would get on a

binge, would he?

TRACY: Just whenever the mood suited him.

DEFENSE: And the mood suited him all the time, didn’t it?

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TRACY: Really, all the time? Well, he drank a lot.

DEFENSE: And that led to great upset on your part and you

ultimately separated in June?

TRACY: Yes, sir.

DEFENSE: And [B.S.] was present when these drinking episodes

took place?

TRACY: Yes, sir.

DEFENSE: Almost stoned, falling down on some occasions?

TRACY: Yes, sir.

DEFENSE: [B.S.] didn’t like that, did she?

TRACY: I don’t guess so. I mean [B.S.] and I never talked about it.

* * *

DEFENSE: Did you hear her make the statement to the department

social worker that the reason she told this story, she just wanted her

dad to get some help for his drinking?

TRACY: I did not hear that statement.

DEFENSE: Has she ever made the statement, and then say get him

help for his drinking problem?

TRACY: Yeah. She would ask me if he were sick [sic], and I would

say, yes, and she would say, “Yeah. He needs some help.”

* * *

STATE (re-direct examination): All right. [Defense counsel] also

asked something about the situation in your marriage and what type

of marriage you had, and that sort of thing. Let me ask you if Joey

Salcido, during the course of that marriage, ever physically abused

you?

TRACY: Yes, he did.

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At this point in the trial, Defendant’s counsel objected on the ground that Defendant’s

relationship with Tracy was not relevant to the charges against him. The jury was removed, and a

brief hearing was conducted during which the State argued that its line of questioning was admissible

because Defendant’s cross-examination had “opened the door” to testimony concerning Defendant’s

behavior while drinking. The trial judge agreed with the State, observing that Defendant had

questioned Tracy concerning “how [Defendant] acted when he got drunk.” The trial judge overruled

Defendant’s objection, after which the jury was readmitted to the courtroom and the following

testimony occurred:

STATE: (re-direct examination continued): Mrs. Tracy, I believe that

you said at some point that when Joey Salcido would drink, he would

be a different person?

TRACY: Yes, sir.

STATE: If you would, explain to us what you mean by that.

TRACY: He would become easily agitated and out of control. He

would say and do things that he normally wouldn’t say and do. I

always used to tell him that morning after that he grew horns.

* * *

STATE: Okay. And I believe that along about the time that we were

taking a break, I had asked you if he had been physically abusive?

TRACY: Yes, sir.

STATE: Is that one of the things that he would do?

TRACY: Yes, sir.

STATE: All right. That’s all.

Defendant argues that the above testimony was allowed into evidence in violation of Tenn.

R. Evid. 404(b).

Tenn. R. Evid. 404(b) states the following:

Evidence of other crimes, wrongs, or acts is not admissible to prove

the character of a person in order to show action in conformity with

the character trait. It may, however, be admissible for other purposes.

The conditions which must be satisfied before allowing such evidence

are:

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(1) The court upon request must hold a hearing outside the

jury's presence;

(2) The court must determine that a material issue exists other

than conduct conforming with a character trait and must upon request

state on the record the material issue, the ruling, and the reasons for

admitting the evidence; and

(3) The court must exclude the evidence if its probative value

is outweighed by the danger of unfair prejudice.

Tenn. R. Evid. 404(b). Tennessee’s rules of evidence recognize that character evidence can be

unnecessarily embarrassing, time consuming, given inappropriate weight, and/or mislead the trier

of fact to punish the defendant for deeds other that those for which he is on trial. See Tennessee Law

of Evidence, § 404.3, Neil P. Cohen (1995). Because of these competing concerns, the rules of

evidence struck a compromise with regard to admissibility of character evidence, making it

admissible only under certain circumstances. Id.

For example, Tennessee Rule of Evidence 404(a) provides, in relevant part, that evidence of

a person's character or a trait of character is not admissible for the purpose of proving action in

conformity with the character or trait on a particular occasion except, inter alia, when evidence of

a pertinent character trait is offered by the accused or by the prosecution to rebut the same. Tenn.

R. Evid. 404(a)(1). As an illustration, the character of the accused is admissible once the defendant

“opens the door” by introducing evidence of his or her own “pertinent” character trait. See

Tennessee Law of Evidence, § 404.3, Neil P. Cohen (1995); State v. West, 844 S.W.2d 144, 149

(Tenn. 1992); State v. Phipps, 883 S.W.2d 138, 152-53 (Tenn. Crim. App. 1994). Until the

defendant takes this step, however, the State cannot introduce evidence of the defendant’s bad

character to prove that the defendant acted in conformity with that character. Various methods exist

by which the defense can “open the door.” Using character witnesses to testify about a particular

character trait of the defendant or cross-examining prosecution witnesses on the pertinent subject

matter are two examples.

We find no error in the trial judge’s decision to admit Tracy’s testimony. Defendant’s

questions concerning whether Defendant had a drinking problem, how he acted when drunk, and

whether drinking was the reason Tracy left Defendant, et cetera, all could reasonably be construed

to have effectively “opened the door” making character evidence admissible under Rule 404(a). See

State v. Phipps, 883 S.W.2d 138, 153 (Tenn. Crim. App. 1994). Moreover, as evidence, Tracy’

statements concerning Defendant’s drunken misbehavior and bad acts were generally repetitive or

cumulative in nature. During Officer Chapman’s testimony, transcripts of the interviews between

Chapman and Defendant were submitted to the jury wherein Defendant admitted that his wife

confronted him with things he had done which “appalled” him and which “he could not believe had

taken place.” Defendant confessed to have no memory of them, however, because he had been drunk

at the time. For the forgoing reasons, we hold that admitting this evidence did not adversely affect

a substantial right of Defendant. Accordingly, under Smith we find no plain error.

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Defendant alleges that the trial court also erred when it admitted the victim’s prior statement

into evidence at trial. Defendant claims that, during the direct examination of the Department of

Children’s Services caseworker, Defendant’s counsel placed in issue only a small portion of the

victim’s statement but, in spite of this, the trial court allowed the entire statement to be read into

evidence during trial which constituted plain and prejudicial error.

Defendant’s complaint concerns the testimony of Shinar Hurd, the case worker who

interviewed B.S. after she complained of being abused by Defendant. The record shows that Hurd’s

testimony on the subject of her interview of B.S., as elicited by defense counsel, indicated that B.S.

had been abused only one time, contradicting B.S.’s prior testimony. During its cross-examination

of Hurd, the State inquired further into the contents of the victim’s statement and Defendant

objected. The trial judge ruled that Defendant had “opened the door” to further testimony

concerning the victim’s statement. Thus, he allowed the victim’s entire sixteen-page statement to

Hurd to be read into the record at trial.

Again, after considering the factors set forth in Smith, we find no evidence of plain error.

Where specific questions and answers taken out of context do not convey the true picture of the prior

statement alleged to be inconsistent, it is unfair to permit reference only to isolated, unexplained

responses by the witness and there is no error in allowing the statements to be placed in context. See

State v. Boyd, 797 S.W.2d 589, 593 (Tenn. 1990) (citing Cole v. State, 498 S.W.2d 915, 917 (Tenn.

Crim. App.1973)). In addition, Defendant’s brief does not contain a citation or a quote that indicates

what specific language Defendant believes constitutes plain and prejudicial error. Issues not

supported by argument or appropriate references to the record will be treated as waived in this Court.

Tenn. R. Ct. Crim. App.10(b); Tenn. R. App. R. 27(g). Defendant is not entitled to relief on these

issues.

C. Cumulative Error

Defendant’s next issue, whether the cumulative effect of the trial court’s errors renders the

trial fundamentally unfair so as to offend Defendant’s due process guarantees, likewise affords no

relief to Defendant. Any and all errors brought to the attention of this Court thus far have been

deemed harmless or nonexistent. This claim has no merit.

V. Consecutive Sentencing

Defendant argues the trial court erred when it imposed consecutive sentences. Defendant

further argues that, because the trial court failed to discuss how the statutory criteria contained in

Tenn. Code Ann. § 40-35-115(b)(5) applied to the facts in Defendant’s case, this Court’s review of

the sentence should be de novo without a presumption of correctness.

When an accused challenges the length, range, or the manner of service of a sentence, this

Court has a duty to conduct a de novo review of the sentence with a presumption that the

determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d) (1997). This

presumption is “conditioned upon the affirmative showing in the record that the trial court

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considered the sentencing principles and all relevant facts and circumstances.” State v. Ashby, 823

S.W.2d 166, 169 (Tenn. 1991) (emphasis added). Even though the trial court may well have

considered the sentencing principles as set forth in § 40-35-103, the record does not contain explicit

statements by the trial judge that he did so. For this reason, we review Defendant’s sentence de novo

without a presumption of correctness.

In conducting a de novo review of a sentence, this court must consider (a) the evidence, if

any, received at the trial and the sentencing hearing; (b) the presentence report; (c) the principles of

sentencing and arguments as to sentencing alternatives; (d) the nature and characteristics of the

criminal conduct involved; (e) any statutory mitigating or enhancement factors; (f) any statement that

the defendant made on his own behalf; and (g) the potential or lack of potential for rehabilitation or

treatment. Tenn. Code Ann. §§ 40-35-102, 103, 210 (1997). See State v. Smith, 735 S.W.2d 859,

863 (Tenn. Crim. App. 1987).

If our review reflects that the trial court followed the statutory sentencing procedure, imposed

a lawful sentence after having given due consideration and proper weight to the factors and

principles set out under the sentencing law, and made findings of fact that are adequately supported

by the record, then we may not modify the sentence even if we would have preferred a different

result. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

Non-mandatory consecutive sentencing in this case is governed by Tennessee Code

Annotated section 40-35-115. According to that statute, the trial court may order consecutive

sentencing where a defendant is convicted of more than one criminal offense and the court finds that

one or more of the required statutory criteria exist. Tenn. Code Ann. § 40-35-115(a) (1997); State

v. Black, 924 S.W.2d 912, 917 (Tenn. Crim. App. 1995).

The trial court based its order of consecutive sentencing upon its finding that Defendant’s

criminal actions met the criteria set forth in Tennessee Code Annotated § 40-35-115(b)(5). That

subsection authorizes consecutive sentencing whenever

the defendant is convicted of two (2) or more statutory offenses

involving sexual abuse of a minor with consideration of the

aggravating circumstances arising from

[1] the relationship between the defendant and victim or victims,

[2] the time span of defendant’s undetected sexual activity,

[3] the nature and scope of the sexual acts and

[4] the extent of the residual, physical and mental damage to the

victim or victims . . . .

Tenn.Code Ann. § 40-35-115(b)(5) (1997) (emphasis added). There is no doubt that Defendant was

convicted and sentenced for two or more offenses involving sexual abuse of a minor. With

consideration given to the additional factors, we find that the first and third factors clearly justify

consecutive sentencing.

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Regarding the first factor, the relationship between the defendant and victim, the fact that

Defendant is the victim’s father shows that Defendant used a position of trust to commit his criminal

acts. Defendant was entrusted with, and indeed responsible for, the six-year-old victim’s safe care

and well-being during his visitation with her. The trial court stated that it considered this

circumstance aggravating. We agree. See State v. Lane, 3 S.W.3d 456, 459 (Tenn. 1999)

As for the third factor, the nature and scope of the sexual acts, the trial court found that the

evidence of sexual abuse was significant. The victim testified that her father committed sexual acts

with her “fourteen times,” that he hurt her, and that he refused to stop even when she hollered and

cried. Even though Defendant was not convicted of rape of a child, the testimony of the victim that

Defendant penetrated his daughter with his penis on numerous occasions was sufficiently

aggravating for purposes of imposing consecutive sentences under § 40-35-115(b)(5). The facts

underlying an offense for which a defendant was acquitted may be considered in sentencing so long

as they were established by a preponderance of the evidence. See State v. Winfield, 23 S.W.3d 279,

281 (Tenn. 2000).

Defendant also argues that the trial court’s use of the familial relationship both to enhance

within the range and justify imposing consecutive sentences creates a multiplier effect which is

improper according to sentencing principles. The record shows that the trial court used two

enhancement factors to justify giving Defendant the maximum sentences for a Class B felony in

Range I: factor (1), which applies when the defendant has a previous history of criminal convictions

or criminal behavior in addition to those necessary to establish the appropriate range; and (15), used

when the defendant is found to have abused a position of public or private trust. See Tenn. Code

Ann. § 40-35-114(1), (15) (1997). Defendant claims that the trial court erred when it used his status

as the victim’s father to both apply enhancement factor (15) and also impose consecutive sentences.

This issue has been addressed by this Court on several prior occasions. In State v. Meeks,

this Court held that consideration of prior criminal activity for both enhancement and consecutive

sentencing purposes is permissible. State v. Meeks, 867 S.W.2d 361, 377 (Tenn. Crim. App. 1993);

see also State v. Davis, 825 S.W.2d 109, 113 (Tenn. Crim. App. 1991). Specifically, “[t]here is no

prohibition in the 1989 Sentencing Act against using the same facts and circumstances both to

enhance sentences under applicable enhancement factors and to require those sentences to be served

consecutively.” Meeks, 867 S.W.2d at 377; see also State v. Davis, 757 S.W.2d 11, 13 (Tenn. Crim.

App. 1987).

In light of the above, we affirm the trial court’s decision to impose consecutive sentences.

We find that Defendant’s actions met the criteria set forth in Tenn.Code Ann. § 40-35-115(b)(5) and

that the trial court’s use of Defendant’s relationship to B.S. to both enhance his sentences under

Tenn. Code Ann. § 40-35-114(15) and impose consecutive sentences under Tenn Code Ann. §

40-35-115(b)(5) was not improper. Defendant is not entitled to relief on this issue.

VI. Conclusion

For the forgoing reasons, we AFFIRM the judgment of the trial court.

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____________________________________

THOMAS T. WOODALL, JUDGE

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