State v. Chesley Randell Thompson

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED

NOVEMBER 1998 SESSION

March 24, 1999

Cecil Crowson, Jr.

Appellate C ourt Clerk

STATE OF TENNESSEE, ) No. 03C01-9807-CC-00238

)

Appellee )

) Blount County

vs. )

) Honorable D. Kelly Thomas, Jr., Judge

CHESLEY RANDELL THOMPSON,)

) (Rape of Child)

Appellant. )

FOR THE APPELLANT: FOR THE APPELLEE:

HUBERT PATTY JOHN KNOX WALKUP

Attorney at Law Attorney General & Reporter

P.O. Box 5449

Maryville, TN 37802 R. STEPHEN JOBE

Assistant Attorney General

Criminal Justice Division

425 Fifth Ave. North

2d Floor, Cordell Hull Bldg.

Nashville, TN 37243-0493

MICHAEL L. FLYNN

District Attorney General

KIRK ANDREWS

LISA McKENZIE

Assistant District Attorneys General

363 Court St.

Maryville, TN 37804

OPINION FILED: ____________________

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED

JAMES CURWOOD WITT, JR.

JUDGE

OPINION

A jury in the Blount County Circuit Court convicted the defendant,

Chesley Randell Thompson, of rape of child, a Class A felony. The trial court

sentenced him to serve twenty-three years in the Department of Correction. In this

direct appeal, the defendant raises numerous issues including the sufficiency of the

evidence. After reviewing the record, the parties’ briefs, and the applicable law, we

affirm the defendant’s conviction. However, because the trial court applied 1995

sentencing revisions to Tennessee Code Annotated section 40-35-210(c) to

determine the defendant’s sentence, we remanded the case to the trial court for

resentencing.

The defendant’s brief lists twenty-three issues for review. However,

the brief fails to include legal arguments with appropriate citations to the record and

to relevant legal authorities in fourteen of the issues. Those issues are waived.

See Tenn. Ct. Crim. App. R. 10(b). We briefly discuss those issues at the

conclusion of this opinion. We resolve the following issues:

1. Whether the evidence is sufficient to

convict the defendant of rape of a child.

2. Whether the trial court should have

granted the defendant’s motion to

suppress his statements to the police

because they were obtained under

duress.

3. Whether the trial court erred by failing to

instruct the jury on the lesser included

offenses of rape of a child.

4. Whether Pamela Dickey’s testimony

should have been excluded as privileged

communication.

5. Whether the trial court should have

excluded the hearsay testimony of Duane

Smith because it was neither a proper

rebuttal nor impeachment.

6. Whether the trial court should have

excluded Detective Long’s hearsay

testimony in which he repeated the

victim’s statements.

2

7. Whether the trial court erred by sending a

written supplemental jury instruction to

the jury rather than returning the jury to

open court.

8 Whether the trial court used improper

enhancement factors and failed to apply

appropriate mitigating factors in

enhancing the defendant’s sentence.1

We begin with a discussion of the facts presented at trial.

On August 4, 1997, the defendant was indicted for rape of a child.

See Tenn. Code Ann. § 39-13-522 (1997). The victim, who was 11 ½ years old at

the time the offense occurred in September, 1994, is the defendant’s daughter.

According to her trial testimony, one day shortly after school began in the fall of

1994, she was lying on the waterbed in her parents’ bedroom. Her mother, the

defendant’s wife, was at work. The victim was wearing a night gown, and at one

point she had worn panties. Later her panties were gone. She remembered that

her father had his head between her legs and his mouth and tongue were on her

vagina. She said that she just laid there on the bed and looked out the window

while this occurred.

On cross examination, the victim testified that she did not tell the state

that the incident occurred in September. She knew that it happened in 1994

because of where they lived. On redirect, she testified that, although she couldn’t

remember an exact date, the event occurred six months after her eleventh birthday

and just after she had started back to school for the year. Her birth date is March

26, 1983. She would have been 11 ½ in September, 1994, the date contained in

the amended indictment. She further testified that her father had never penetrated

her sexually and that she was a virgin. She stated that she hoped to go home once

the trial was over.2

1

We resolve eight issues rather than nine because defendant’s

issues number 6 and 7 are identical.

2

The record does not disclose exactly how the authorities learned of

the victim’s abuse. In early 1997, the Department of Human Services placed the

3

The state called Duane Smith, an investigator for the Department of

Children’s Services who interviewed the victim in February of 1997. He testified that

the victim told him that she was 11 ½ years old when her father performed

cunnilingus on her.

James Long, an investigator from the Blount County Sheriff’s

Department, interviewed the defendant on February 11, 1997, February 21, 1997,

and March 4, 1997. At first, the defendant said that he couldn’t remember

performing cunnilingus on his daughter. Finally on March 4, when his wife and a

DHS social worker were present, he admitted that he had licked and kissed his

daughter’s genitals.

According to Pamela Dickey, a program director for the PASAC Sex

Abuse Treatment Program in Knoxville, the defendant was a member of a

counseling group which she served as therapist. In the group, the defendant

described how he had touched, kissed and licked his daughter’s private parts.

The defense presented no witnesses, and the jury returned a verdict

of guilty on the single count of rape of a child.

I. Sufficiency of the Evidence

(Defendant’s Issue No. 18)

The defendant now contends that the evidence is insufficient to

sustain his conviction. In particular, he argues that because the record contains

absolutely no evidence of penetration, he cannot be convicted of rape. We

respectfully disagree.

When an accused challenges the sufficiency of the evidence, an

appellate court’s standard of review is, whether after considering the evidence in

victim in foster care. At the time of trial, her parents were still married and lived

together along with the victim’s younger brother.

4

the light most favorable to the prosecution, any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307, 317, 99 S. Ct. 2781, 2789 (1979); State v. Duncan, 698

S.W.2d 63, 67 (Tenn. 1985); Tenn. R. App. P. 13(e). Because a jury conviction

removes the presumption of innocence with which a defendant is initially cloaked

and replaces it with one of guilt, a convicted defendant has the burden of

demonstrating that the evidence is insufficient. State v. Tuggle, 639 S.W.2d 913,

914 (Tenn. 1982). On appeal, the state is entitled to the strongest legitimate view

of the evidence and all reasonable or legitimate inferences which may be drawn

therefrom. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992).

In determining that sufficiency, this court does not reweigh or

reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

It is the appellate court’s duty to affirm the conviction if the evidence, viewed under

these standards, was sufficient for any rational trier of fact to have found the

essential elements of the offenses beyond a reasonable doubt. Jackson v. Virginia,

443 U.S. 307, 317, 99 S. Ct. 2781, 2789; State v. Cazes, 875 S.W.2d 253, 259

(Tenn. 1994); Tenn. R. App. P. 13(e).

The indictment in this instance charged that the defendant “on or

about September, 1994, did unlawfully and knowingly sexually penetrate [J.T.],3 a

person less than 13 years of age in violation of Tennessee Code Annotated section

39-13-522. . . .” Tennessee Code Annotated section 39-13-522(a) defines the

offense of rape of a child as the “unlawful sexual penetration of a victim by the

defendant or the defendant by a victim, if such victim is less than thirteen (13) years

of age.” The legislature has defined sexual penetration as “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

3

According to our custom, we refer to a child who is the victim of

sexual abuse by initials only.

5

victim’s, the defendant’s, or any other person’s body, but emission of semen is not

required[.]” Tenn. Code Ann. § 39-13-502(7)(1997). To convict the defendant for

rape of a child, the state must prove beyond a reasonable doubt that he knowingly

sexually penetrated a child of less than thirteen years in one of the ways defined by

statute.

In viewing the evidence in the light most favorable to the state, we are

confronted with the evidence provided by the victim and the admissions of the

defendant to Detective Long and to his therapist. The victim, who was eleven years

old at the time of the offense, testified that her father put his head between her legs

and placed his mouth and tongue on her vagina. In his final interview with the

police, the defendant told the detective that he had kissed and licked his daughter’s

genitals. He also described these actions to his therapist. The only question that

we must resolve is whether these actions constitute rape of a child under

Tennessee law.

As noted above, rape of a child requires sexual penetration. Tenn.

Code Ann. § 39-13-522 (1997). Penetration includes cunnilingus. Tenn. Code

Ann. § 39-13-502(7) (1997). Cunnilingus, a sexual activity in which the mouth and

tongue are used to stimulate the female genitals, does not require that the mouth

or tongue actually penetrate into the vagina. State v. Hoyt, 928 S.W.2d 935, 942

(Tenn. Crim. App. 1995); State v. Bruce Allan Rudd, No. 03C01-9707-CR-00307,

slip op. at 6 (Tenn. Crim. App., Knoxville, Oct. 6, 1998); State v. Michael Warren

Evans, No. 02C01-9306-CC-00124, slip op. at 5 (Tenn. Crim. App., Jackson, Mar.

2, 1994), perm. app. denied (Tenn. 1994); State v. Karl E. Vanderbilt, No. 70, slip

op. at 6 (Tenn. Crim. App., Jackson, Apr. 8, 1992), perm. app. denied (Tenn. 1992).

While touch alone may not constitute penetration under Tennessee law, licking

clearly does. State v. Reginald L. Parker, No. 02C01-9306-CR-00130, slip op. at

4 (Tenn. Crim. App., Jackson, Dec. 28, 1994). The defendant admitted that he

licked the victim’s genitals. Thus, the evidence is more than sufficient for a

6

reasonable jury to conclude beyond a reasonable doubt that the defendant

committed rape of a child as defined by Tennessee statutes. See Tenn. Code Ann.

§§ 39-13-502(7); 39-13-522(a) (1997).

II. Suppression of the Defendant’s Statement

(Defendant’s Issue No. 1)

The defendant’s motion to suppress alleged that the defendant’s

statements to the police were not voluntary but were obtained by duress and

coercion. Specifically, the defendant contends that he confessed to the police only

because he was led to believe that if he made a statement his daughter would be

returned home. He argues that his desire to reunite his family overwhelmed his

independent judgment. At the conclusion of a pre-trial hearing, the trial court denied

the defendant’s motion upon concluding that the defendant was an intelligent man

who made a knowing and voluntary waiver of his constitutional rights. The court

found that no one had threatened the defendant or made him any promises. It ruled

that a desire to get one’s family back together does not render a statement

involuntary. We agree.

To be valid, a waiver of one’s constitutional rights and a subsequent

statement must be voluntarily, knowingly and intelligently made. Miranda v.

Arizona, 384 U.S. 436, 479 , 86 S. Ct. 1602, 1630 (1966). This court must examine

the totality of the circumstances surrounding each individual case to determine the

question of voluntariness. State v. Van Tran, 864 S.W.2d 465, 472-73 (Tenn.

1993). Factors relevant in determining whether a defendant voluntarily made a

statement to the police include (1) the length of time between the arrest and the

statement; (2) the occurrence of intervening events between the arrest and the

confession; (3) the giving of Miranda warnings; and (4) the purpose and flagrancy

of any official misconduct. Brown v. Illinois, 422 U.S. 590, 603-04, 95 S. Ct. 2254,

2261-62 (1975). The overriding question, however, is whether the behavior of law

7

enforcement officials served to overbear the defendant’s will to resist. State v.

Kelly, 603 S.W.2d 726, 728 (Tenn. 1980).

A trial court’s findings of fact at a hearing on a motion to suppress are

binding upon this court unless the evidence in the record preponderates otherwise.

State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). The credibility of witnesses and

the resolution of conflicts in the evidence are matters entrusted to the trial judge.

Id. This court must uphold the ruling of the lower court if it is supported by the

“greater weight” of the evidence. Id.

Here, the record supports the trial court’s determinations. Although

the police interviewed the defendant on February 11, February 21, and March 4 of

1997, nothing in the record indicates that he was under arrest during this period of

time. The detective testified that he gave the defendant the Miranda warnings prior

to each interview and the record contains written waivers executed by the defendant

and dated February 11 and 21. The tape of the March 4 interview indicates that the

defendant reviewed the form he had signed previously and understood that he was

waiving his constitutional rights. The defendant acknowledged that he did not want

an attorney present. The record contains no credible proof of official misconduct

including coercion or false promises. Nothing indicates that the officers’ behavior

was so overbearing that the defendant’s will to maintain his innocence was

overwhelmed. Under these circumstances, the trial court properly denied the

motion to suppress.

III. Failure to Instruct on Lesser-Included Offenses

(Defendant’s Issue No. 13)

8

The trial court instructed the jury on rape of a child as defined in

Tennessee Code Annotated sections 39-13-501(7) and 39-13-522. The court did

not instruct on the lesser included offense of sexual battery, nor did the trial court

instruct the jury on incest. The defendant now contends that the trial court’s failure

to charge the jury on any lesser included offense was most prejudicial to the

defendant and requires that he be granted a new trial.

A trial court has the duty of giving a correct and complete charge of

the law applicable to the facts of the case. See e.g., State v. Teel, 793 S.W.2d 236,

249 (Tenn. 1990); State v. Bryant, 654 S.W.2d 389, 390 (Tenn. 1983). Moreover,

the legislature has determined that the trial court must charge the jury on applicable

lesser included offenses whether or not they are requested by the defendant. Tenn.

Code Ann. § 40-118-110(a) (1997). A lesser offense, however, need not be

charged if the evidence supports only the greater offense or no offense at all.

Moorman v. State, 577 S.W.2d 473, 475 (Tenn. 1978); State v. Tutton, 875 S.W.2d

295, 297 (Tenn. 1993).

The victim testified that the defendant performed cunnilingus on her.

The record contains no mention of any other form of sexual contact. Pursuant to

the definition given in section 39-13-501(7), cunnilingus is the equivalent of sexual

penetration. To be convicted of rape of a child, a defendant must unlawfully sexually

penetrate a victim who is less than thirteen years of age. Tenn. Code Ann. § 39-13-

522(a) (1997). Either this defendant was guilty of rape of a child as charged or he

was guilty of no offense at all. See State v. Tutton, 875 S.W.2d 295, 297 (Tenn.

1993); Moorman v. State, 577 S.W.2d 473, 475 (Tenn. 1978). 4 The lack of any

4

The defendant’s brief does not specify which lesser included or

lesser grade of offense the trial court should have charged. However, the cases

he has selected to support his argument involve the offense of incest. See

Tenn. Code Ann. § 39-15-302 (1997). We note that this court has previously

determined that incest is not a lesser included offense of rape. See State v.

Willie C. Powell, No. 02C01-9210-CR-00246 (Tenn. Crim. App., Jackson, Feb. 9,

1994); State v. John Rickman, No. 03C01-9211-CR-00393 (Tenn. Crim. App.,

9

instructions on lesser included or lesser grades of rape of a child does not, in this

instance, entitle the defendant to a new trial.

IV. Privileged Testimony

(Defendant’s Issue No. 20)

The defendant contends that the trial court erred by admitting into

evidence the defendant’s statements to his therapist at the PASAC Sex Abuse

Treatment Program where he was voluntarily enrolled. At trial, Pamela Dickey, who

led a group in which the defendant was a member, testified that he had described

to the group how he had licked and kissed his daughter’s genitals. He argues that

pursuant to Jaffee v. Redmond, 518 U.S. 1, 116 S. Ct. 1923 (1996), the privilege

protecting confidential communications between a psychotherapist and her patient

promote sufficiently important interests to outweigh the need for the probative

evidence the therapist may give at trial.

Our supreme court has previously addressed this issue in State v.

Smith, 933 S.W.2d 450 (Tenn. 1996). In Smith, the Tennessee Supreme Court

rejected out of hand the argument that the legislature’s abrogation of the counselor

privilege in child sex abuse cases violates due process under either the federal or

state constitutions. State v. Smith, 933 S.W.2d at 457. Confidential privileges exist

at the discretion of the legislature and the courts. Id. (citations to other authority

omitted). Although the legislature has provided privileges for certain confidential

relationships, it has expressly abrogated those privileges in judicial proceedings

Knoxville, May 18, 1993); State v. Jerrell C. Livingston, No. 01C01-9012-CR-

00337 (Tenn. Crim. App., Nashville, Sept. 17, 1991). Rape of a child is defined

as an offense against persons in title 39, chapter 13 of Tennessee Code

Annotated. Incest, on the other hand, is an offense against the family and is

found in chapter 15 of title 39. Therefore, incest is not a lesser grade of rape.

See State v. Trusty, 919 S.W.2d 305, 311 (Tenn. 1996). The trial court could not

have instructed the jury on incest because the defendant had not been indicted

for that offense. See Trusty, 919 S.W.2d at 310.

10

relating to child sex abuse. Tenn. Code Ann. § 37-1-614 (1997). A creation of the

legislature, the privilege is undoubtedly subject to limitation or removal as the

legislature deems appropriate. State v. Smith, 933 S.W.2d at 457. Our legislature

has determined that society’s interest in exposing the sexual abuse of children

transcends society’s interests in protecting the confidentiality of the communications

between a counselor and a client. Id. The defendant has suffered no deprivation

of his constitutional rights by the admission of Ms. Dickey’s testimony.

V. Prior Consistent Statements

(Defendant’s Issue No. 9)

The defendant argues that the trial court should have excluded the

hearsay testimony of Duane Smith because it was neither proper rebuttal nor proper

impeachment. The state contends that his testimony was a prior consistent

statement and was admissible to rebut an express or implied charge of recent

fabrication or improper influence or motive. Although we agree with the state that

Smith’s testimony was properly admitted as a prior consistent statement, we find

that the trial court erred by failing to give the jury a proper instruction concerning its

use. However, the error on this record was harmless.

Smith was the last witness to testify in the state’s case-in-chief. His

testimony was very brief. The pertinent portion of his testimony is as follows:

Prosecutor: And in the course of your

job with the Department of

Children’s Services, did you

speak with [the victim]?

Witness: Yes, I have.

Prosecutor: Do you remember on what date - -

Defense Counsel: Your Honor,

is this for the

purpose of

im peach ing

the State’s

witnesses?

Court: I’ve already ruled on this, Mr. Patty.

Defense Counsel: All right.

11

Prosecutor: On what date did you see her?

Witness: On February 7th, 1997.

Prosecutor: And where did you see her?

Witness: Lanier Elementary School

Prosecutor: And what, if anything, did

she say about a date of a

happening of cunnilingus - -

Defense Counsel: Well, if Your

H o n o r

please, that’s

leading and

improper.5

Court: Overruled.

Defense Counsel: All right.

Prosecutor: You may answer.

Witness: Okay. She stated that

when she was eleven and a

half years old that the oral

sex took place.

The defendant now contends that the witness’s response to the last

question is inadmissible hearsay. Under the Tennessee Rules of Evidence,

hearsay is any statement, other than one made by the declarant while testifying at

trial or in a hearing, that is offered into evidence to prove the truth of the matter

asserted. Tenn. R. Evid. 801(c). Hearsay statements are not admissible unless (1)

the evidentiary rules create an exception or (2) some other law renders the

statement admissible. Tenn. R. Evid. 802, Advisory Commission Comments. In

this instance, the witness testified to the victim’s out of court statement during the

state’s case in chief. Prior statements of witnesses, whether consistent or

inconsistent with their trial testimony, constitute hearsay if offered for the truth of the

matter asserted. State v. Braggs, 604 S.W.2d 883, 885 (Tenn. Crim. App. 1980)

5

We note that defense counsel did not specifically object to Smith’s

testimony as hearsay or as improper impeachment. The trial court apparently

misunderstood the gist of defense counsel’s question as to the purpose of the

testimony. Defense counsel objected to the single substantive question as

“improper,” and the trial court overruled the objection without further comment.

See Tenn. R. App. P. 36(a). We choose, however, to consider the merits of this

issue, but remind counsel that for the purposes of appellate review, counsel

should state on the record the legal basis for each objection.

12

(citations omitted). In this case, if the state offered the testimony as substantive

evidence to prove the date of the offense, the statement is clearly hearsay and

inadmissible. The state argues that the testimony was admissible as a prior

consistent statement offered to rehabilitate the victim’s testimony after defense

counsel attempted to impeach her statements during cross-examination.

Detective Long testified before the victim was called to the stand.

During cross examination, defense counsel asked him if anyone had ever told him

that “Mr. Thompson did that in September of 1994?” The detective responded that

the victim had stated that “it occurred in September of 1994.” In response to two

additional questions by defense counsel, the detective again asserted that the victim

had indeed told him that the offense occurred in September of 1994.

The victim was the second witness called by the state. During direct

examination, she testified that the offense occurred on or about September, 1994

when she was in the fifth grade and was 11 ½ years old. Defense counsel

attempted during cross examination to show that the victim was not certain as to the

time the offense occurred by showing her three photographs taken during summer

and fall of 1994. She testified that with respect to two of the photographs, the

events had occurred too long ago for her to remember when they were taken. She

was certain, however, that she and her family lived on Calderwood Ave. in Maryville

during the fall of 1994 and at the time of the commission of the offense. She also

testified that the state suggested the date of September, 1994.

On redirect, when the state asked her if she remembered talking to

Detective Long and telling him that the incident happened about six months after

her eleventh birthday, she said that she couldn’t remember telling him that it was six

months after her birthday. She admitted, however, that she thought that school had

just started when the offense occurred.

13

As a rule, evidence of a prior consistent statement may not be used

to rehabilitate or bolster the testimony of an impeached witness. State v. Martin,

964 S.W.2d 564, 567 (Tenn. 1998); State v. Braggs, 604 S.W.2d at 885 (citations

to other authority omitted). There are two recognized exceptions to this rule. First

when a witness has been challenged on the ground that his trial testimony is a

recent fabrication or when the witness has an apparent motive for testifying falsely,

evidence that a witness gave a similar statement when the motive to give false

testimony did not exist and the effect of the witness’s version of the facts could not

be foreseen, is admissible. State v. Carpenter, 773 S.W.2d 1, 10-11 (Tenn. Crim.

App. 1989). Second, when counsel uses prior statements to cross-examine a

witness, and specific questions and answers that are taken out of context so that

they do not convey a true picture of the prior statement, the statement itself may be

introduced as evidence to allow the statements to be placed in context. State v.

Boyd, 797 S.W.2d 589, 593-594 (Tenn. 1990).

In this case, the first exception applies. The victim made her

statement to the D.H.S. worker on February 7, 1997, six months before the

defendant was indicted. At that time, she would not have been aware of the

ramifications of her statement. At trial, although she testified on direct examination

that the offense occurred in September, 1994 when she was 11 ½ years old, during

cross-examination she said that the date had been suggested by the state. Clearly

her testimony on direct had been seriously questioned. Although prior consistent

statements have been excluded when they pertain to an ambiguous response

regarding the date of an event, see State v. Dane Howell, No. 76 (Tenn. Crim. App.,

Knoxville, June 15, 1989), J.T.’s credibility was sufficiently challenged to warrant the

admission of a prior consistent statement.

Prior statements of witnesses, however, may not be admitted as

substantive evidence. See Sutton v. State, 155 Tenn. 200, 204, 291 S.W. 1069,

1071 (1926); State v. Carpenter, 773 S.W.2d 1, 11 (Tenn. Crim. App. 1989); State

14

v. Braggs, 604 S.W.2d at 885. In this case, the trial court gave no instruction to the

jury that the victim’s prior consistent statement about the date of the offense could

not be considered as proof that the offense actually occurred in September of 1994.

The lack of a jury instruction was, however, completely harmless. See

Tenn. R. App. P. 36(b). The date of the offense was not at issue. The defendant

did not raise an alibi defense. In fact, he did not deny that he had acted in the way

described by his daughter. He attempted to show that he was not guilty of rape

because penetration had not occurred. The victim’s direct testimony and Detective

Long’s response to defense counsel’s questions established that the offense

occurred just after school started in 1994 when the victim was about 11 ½ years of

age. A jury instruction on the nature and use of a prior consistent statement would

not have affected the verdict. See State v. Braggs, 604 S.W.2d at 885.

VI. Hearsay

(Defendant’s Issue No. 8)

The detective who investigated the allegations of child sexual abuse

in this case twice testified that the victim told him that the incident occurred in

September, 1994. The defendant objects to the admission of these hearsay

statements. We agree that the testimony to which the defendant refers is classic

hearsay. See Tenn. R. Evid. 801(c). However, the state did not elicit this

testimony. On cross examination, defense counsel asked the detective two times

if anyone had told him “that Mr. Thompson did that in September of 1994?” Each

time, the detective responded that the victim had given him that information. The

party responsible for an error is entitled to no relief in this court. Tenn. R. App. P.

36(a). This issue has no merit.

VII. Supplemental Jury Instruction

(Defendant’s Issue No. 14)

15

In this issue, the defendant contends that the trial court’s ex parte

communication with the jury was improper and prejudiced his right to a fair trial.

The information in the record concerning the alleged ex parte communication is

sparse. The only information about this communication is contained in the

transcript of the hearing on the defendant’s Motion for New Trial. The transcript

includes a cryptic handwritten note as an exhibit. It says, “Meaning of word

Cunnilingus from Dictionary.” Beneath this, the trial judge wrote, “The definition that

must be used is in your instructions.” His signature follows the supplemental

instruction. Because the trial transcript contains a full record of the disposition of

another jury request and no record whatsoever of this communication, we must

conclude that the trial court responded to the jury’s request sua sponte and without

the prior knowledge of either party.6 The discussion held at the hearing supports

this conclusion. The trial court stated, “The only communication I had with the Jury,

other than the initial instructions, is set out in a written question that they sent to me,

and I’ve had that -- with my response that I told the lawyers about, that’s been made

an exhibit.” The trial court’s statement, although not crystal clear, implies that the

trial judge responded to the note and then informed the attorneys about his

response.

Trial courts should discontinue the practice of communicating with

deliberating juries by passing notes. State v. Mays, 677 S.W.2d 476, 479 (Tenn.

Crim. App. 1984). To prevent even the appearance of judicial partiality or

unfairness, any proceedings involving the jury after it has retired for deliberations

should be conducted in the open court and in the defendant’s presence. State v.

Tune, 872 S.W.2d 922, 929 (Tenn. Crim. App. 1993); Smith v. State, 566 S.W.2d

553, 559-560 (Tenn. Crim. App. 1978). The proper method of fielding jury questions

6

The jury sent two requests to the judge. The trial record indicates

that after retiring to deliberate, the jury asked that they rehear the defendant’s

tape recorded statement. The trial judge brought the jury, the defendant, and the

attorneys back into open court where the redacted tape was replayed for the

jury. The trial court appropriately instructed the jury at that time. The defendant

does not challenge the trial court’s actions with respect to this communication.

16

during deliberations is to recall the jury, counsel for both parties, the defendant, and

the court reporter and to resolve the matter on the record. State v. Mays, 677

S.W.2d at 479.

The failure to follow the proper procedure, however, is subject to

harmless error analysis. State v. Tune, 872 S.W.2d at 929; State v. Mays, 677

S.W.2d at 479. If the defendant has not been prejudiced by an inappropriate

response, reversal is not required. State v. Tune, 872 S.W.2d at 929. The

defendant has not indicated how the trial court’s actions resulted in prejudice. Nor

have we found any. In this instance, the trial court’s response merely referred the

jury back to the original instructions. No new or erroneous information was included

in the supplemental instruction. The inappropriate method of responding to the

jury’s question could not have affected the verdict.

IX. Sentencing

(Defendant’s Issue No. 23)

In his final issue, the defendant contends that the trial court improperly

used two enhancement factors to enhance his sentence beyond the statutory

minimum and failed to find certain mitigating factors that were supported by the

proof. The state argues that, although the record supports the use of two mitigating

factors, the defendant’s twenty-three year sentence should be affirmed.

When an accused challenges the length, range, or manner of

service of a sentence, it is the duty of this court to conduct a de novo review 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 considered the sentencing principles and

all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn.

17

1991). In conducting our review, we must consider all the evidence, the

presentence report, the sentencing principles, the enhancing and mitigating factors,

counsels’ arguments, the appellant’s statements, the nature and character of the

offense, and the appellant’s potential for rehabilitation. Tenn. Code Ann. §§ 40-35-

103(5), -210(b) (1997); State v. Ashby, 823 S.W.2d at 169. The defendant has the

burden of demonstrating that the sentence is improper. Id. In the event the record

fails to demonstrate the appropriate consideration by the trial court, appellate review

of the sentence is purely de novo. Id. If our review reflects that the trial court

properly considered all relevant factors and the record adequately supports its

findings of fact, this court must affirm the sentence even if we would have preferred

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

In this instance, the trial court found that the evidence supported the

application of two enhancement factors: (1) that the defendant had a previous

history of criminal behavior, and (2) that the defendant abused a position of private

trust. Tenn. Code Ann. §§ 40-35-114(1), (15) (1997). W e find that the record

supports the use of both factors in this case.

Testimony at the sentencing hearing demonstrates that the defendant

had a long history of criminal behavior although he had no prior history of

convictions or arrests. At the sentencing hearing, Detective Long testified that the

victim reported that the abuse had begun when she was about five years old. The

defendant, in his statement to the police, acknowledged that he had engaged in

sexual contact with his daughter many times before the final incident in September,

1994. Although, evidence of an arrest or a charge may not, without more, be used

to enhance a sentence, State v. Marshall, 870 S.W.2d 532, 542 (Tenn. Crim. App.

1993), the defendant’s admission of many incidents of abuse is sufficient to justify

the application of enhancement factor (1). State v. Alexander, 957 S.W.2d 1,

7(Tenn. Crim. App. 1997) (proof of defendant’s cocaine problem warrants

application of factor (1)); State v. Hunter, 926 S.W.2d 744, 749 (Tenn. Crim. App.

18

1995) (proof that defendant sexually abused victim as often as twice a week

supports application of the factor). The trial court did not err in using factor (1) to

enhance the defendant’s sentence.

Factor (15) may be used to enhance a sentence when the defendant

abuses a position of public or private trust in the commission of the offense. Tenn.

Code Ann. § 40-35-114(15) (1997). As the victim’s father, the defendant was

charged with her care and control. His actions most certainly violated a private

trust. See State v. Hayes, 899 S.W.2d 175, 187(Tenn. Crim. App. 1995).

With respect to mitigating factors, the trial court found that the

defendant’s attempts to rehabilitate himself were worthy of some consideration.

Tenn. Code Ann. § 40-35-113(13) (1997). The victim testified at the sentencing

hearing that after the incident in September of 1994, he had never touched her

again. He quit drinking and returned to his church.7 Before any charges were

made against him, he voluntarily sought therapy for his problem. The court,

however, rejected the defendant’s arguments that

(1) the defendant’s conduct neither caused

nor threatened serious bodily injury,

Tenn. Code Ann. § 40-35-113(1) (1997);

(2) substantial grounds exist tending to

excuse or justify the defendant’s criminal

conduct, Tenn. Code Ann. § 40-35-113(3)

(1997);

(3) the defendant was suffering from a

mental or physical condition that

significantly reduced his culpability,

Tenn. Code Ann. § 40-35-113(8) (1997);

(4) the defendant assisted the authorities,

Tenn. Code Ann. § 40-35-113(9) (1997);

(5) the defendant committed the offense

under such unusual circumstances that it

is likely he had no sustained intent to

violate the law. Tenn. Code Ann. § 40-

35-113(11) (1997).

7

The defendant had been a pastor up until the early 1980s.

19

The state concedes and we agree that trial court’s refusal to consider

mitigating factor (1), that the defendant’s conduct neither caused nor threatened

serious bodily injury was error.8 The record contains no evidence indicating that the

victim suffered any bodily injury at all, and the trial court should have given this

factor due consideration in its sentencing determination. With respect to the other

mitigating factors proposed by the defendant, we find that the evidence in the record

does not preponderate against the trial court’s findings. The defendant’s abuse of

alcohol is not a mitigating factor. See Tenn. Code Ann. § 40-35-113(8). There is

no evidence indicating that he was helpful to the authorities, and the extended

abuse of his daughter demonstrates a sustained intent to violate the law.

We have, however, found an error in sentencing that requires that this

case be remanded to the trial court. Rape of a child is a Class A felony. Tenn.

Code Ann. § 39-13-522 (1997). Range I offenders convicted of Class A felonies

may be sentenced to no less than fifteen and no more than twenty-five years.

Tenn. Code Ann. § 40-35-112(a)(1) (1997). Before 1995, the presumptive sentence

for all felonies was the minimum sentence in the range. Tenn. Code Ann. § 40-35-

210(c) (1990) (amended 1995). As of July 1, 1995, however, the presumptive

sentence for Classes A and B is the midpoint of the range. Tenn. Code Ann. § 40-

35-210(c) (1997). The defendant committed the offense for which he was convicted

in September of 1994. He was tried and convicted in January, 1998 and sentenced

in February of that same year. The trial judge mistakenly considered twenty years

as the presumptive minimum sentence. Because this offense occurred before the

1995 amendments took effect, the defendant is entitled to a presumptive minimum

sentence of fifteen years. See Frederick R. Porter, No. 03C01-9606-CC-00238, slip

op. at 12 fn. 2 (Tenn. Crim. App., Knoxville, Oct. 24, 1997).

8

The trial court apparently believed that this factor was never

appropriately applied in child rape cases.

20

Reducing the minimum sentence from twenty to fifteen years and the

inclusion of an additional mitigating factor requires that the trial court reassess the

evidence and determine an appropriate sentence. Upon remand, the trial judge

shall place on the record the findings of fact and the sentencing principles that

support his new sentencing order. If either party appeals from the trial court’s order,

the trial court’s complete findings will facilitate any review required in this court.

VIII. Issues that are Waived

The defendant inadequately briefed or failed to address thirteen

issues. According to Rule 10(b) of the Rules of the Tennessee Court of Criminal

Appeals, issues that are not supported by argument, citation to authorities, or

appropriate references to the record will be treated as waived. We discuss each

issue separately but succinctly in numbered order.

A.

The Defendant’s Redacted Statement

Defendant’s Issues No. 2, 3, and 4

The defendant argues that the redacted version of the defendant’s

recorded statement should have been excluded (1) because the state failed to

provide the defense with a copy in a timely manner; (2) because the redaction

altered the meaning of the tape; and (3) because the redaction amounted to editing

by the state.

With respect to the first issue, the defendant cites to three cases that

are only tangentially relevant to the issue of the state’s timely response. Moreover,

if the defendant filed a motion for discovery pursuant to Rule 16, the record does

not include a copy. The defendant has the obligation to prepare a record that allows

for meaningful appellate review. Tenn. R. App. P. 24(b). When the record lacks

evidence necessary for review, this court is precluded from considering the issue.

State v. Roberts, 755 S.W.2d 833, 836 (Tenn. Crim. App. 1988).

21

The record in this case, however, indicates that any delay in the

defendant’s receipt of the tape recording was due to defense counsel’s failure to

retrieve the discovery packet the district attorney’s office had prepared.9 The

defendant cannot complain of the untimeliness of the state’s response when his

own inaction contributed to the delay. Tenn. R. App. P. 36(b).

The brief does not address the latter two issues at all, and the record

does not contain the original tape. Because we are unable to compare the redacted

version of the tape with the original, we are unable to render any decision

concerning the redaction of the tape.

B. Limitations on Cross Examination of the Victim

(Defendant’s Issue No. 5)

The record reflects that the state filed a motion in limine seeking to

prevent the defendant from cross examining the victim on her attitude toward the

defendant including whether she had forgiven him, whether she wanted to see him

punished, and whether she thought he would re-offend. At the motions hearing,

defense counsel advised the trial judge that he had no intention of questioning the

victim or other witnesses about such matters. The court granted the motion with the

caveat that the defendant would be entitled to cross examine the witnesses on any

matter raised on direct examination. The defendant has failed to cite to any specific

instances in which the trial court inappropriately limited his right to fully cross

examine the victim or any other witness. Our review of the record has disclosed

none. This issue has no merit.

C. Jury Instructions

(Defendant’s Issues No. 10, 11)

9

The assistant district attorney told the trial court that defense

counsel had not responded to her letter or telephone calls when she requested a

date for an exchange of discovery. Six days before trial, the assistant district

attorney happened to see defense counsel in the courthouse. She brought the

packet of material and placed them in his hands. Defense counsel did not

dispute the accuracy of her statements.

22

The defendant alleges that the trial erred by failing to instruct the jury

on the general rape charges set out in the indictment and then instructing the jury

on a special statutory provision. The defendant has not briefed these issues;

therefore, they are waived.

D. The Constitutionality of Tenn. Code Ann. § 39-13-502(7)

(Defendant’s Issue No. 12)

The defendant argues that the legislative definition of sexual

penetration found in Tennessee Code Annotated section 39-13-502(7) is vague and

overly broad.10 The argument in the brief contains three sentences and makes no

attempt to relate to this court the nature of the precise challenge to the statute.11

The only cite is to an inapposite United States Supreme Court case that is twenty-

nine pages in length, and the citation does not include a pinpoint cite. The

defendant has failed to support this issue with argument and the brief contains no

citation to any relevant legal authority or any appropriate citations to the record. We

decline to consider the constitutionality of a statute on the basis of such an

incomplete briefing. The issue is waived pursuant to Rule 10(b), Rules of the

Tennessee Court of Criminal Appeals. See Thomas Calvin Maney, Jr. v. State, No.

03C01-9704-CR-00135, slip op. at 3 (Tenn. Crim. App., Knoxville, March 23, 1998);

State v. Reginald Dion Hughes, no number in original, slip op. at 1-2 (Tenn. Crim.

App., Dec. 14, 1988); State v. Jerry Bates Long, No. 87-72-III, slip op. at 8 (Tenn.

Crim. App. May 11, 1988).

10

“‘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; . . .” Tenn. Code Ann. § 39-13-502(7).

11

Defendant’s argument in its entirety is as follows:

It is obvious that this statue (sic) is unconstitutional in at least two aspects

one being vagueness and the other being overly broad. There is no way an

ordinary person by the reading of this statue (sic) could be put on notice as to

what conduct was governed without going outside the statue (sic) and as in this

case where the jury trying to decide the case wanted some outside information to

aide them in determining what the statue (sic) meant. On the question of the

statue (sic) being overly broad See Griswold v. Connecticut, 381 U.S. 379, 14

L.Ed. 2d 510.

23

E. Court Officer’s Communication with the Jury

(Defendant’s Issue No. 15)

The defendant has not briefed this issue. The issue is waived.

F. Replaying of the Redacted Tape for the Jury

(Defendant’s Issue No. 16)

The defendant has not briefed this issue. Therefore, it is waived.

However, the trial transcript discloses that the trial followed the proper procedure

in granting the jury’s request to rehear the tape. See State v. Tune, 872 S.W.2d

922, 929 (Tenn. Crim. App. 1993). The court replayed the tape in open court in the

presence of the defendant and the attorneys. The court also admonished the jurors

not to place undue emphasis on the tape simply because they had heard it twice.

State v. Smith, 656 S.W.2d 882, 888 (Tenn. Crim. App. 1983). This issue has no

merit.

G. The Weight of the Evidence

(Defendant’s Issue No. 17)

This court does not reweigh or reevaluate the evidence. State v.

Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Therefore, we have not addressed

this issue.

H. Amendment to the Indictment

(Defendant’s Issue No. 19)

The defendant has not briefed this issue. Therefore, it is waived.

Tenn. Ct. Crim. App. R. 10(b). Furthermore, the defendant would not be entitled to

relief if the issue were properly before this court. Five days before trial, the trial

court allowed the state to amend the indictment to show that the offense occurred

in September, 1994 rather than on September 26, 1994. Rule 7(b) of the

Tennessee Rules of Criminal Procedure permits the amendment of an indictment

without the consent of the defendant “[i]f no additional or different offense is thereby

charged and no substantial rights of the defendant are thereby prejudiced. . . .” In

this instance, the amendment did not allege any additional or different offense. The

24

precise date of the offense was not a critical matter in this case because the

defendant was not relying upon an alibi defense. The amendment did not result in

any prejudice to the defendant’s substantial rights. The trial court did not err in

permitting the amendment of the indictment.

I. Jury instruction as to the Specific Time Frame

(Defendant’s Issue No. 21)

Because the defendant has not briefed this issue, the issue is waived.

Tenn. R. Ct. Crim. App. 10(b). Moreover, the record does not disclose that the

defendant requested any special instruction on this matter.

J. Prosecutor’s Closing Argument

(Defendant’s Issue No. 22)

Because the defendant has not briefed this issue, the issue is waived.

Tenn. R. Ct. Crim. App. 10(b). Furthermore, defense counsel made no

contemporaneous objection during the prosecutor’s closing argument. See Tenn.

R. App. P. 36(b).

Conclusion

We have reviewed the record and the applicable law and have found

no error requiring a reversal in this case. Therefore, we affirm the defendant’s

conviction for rape of a child. However, because the trial court began its sentencing

determination at the incorrect presumptive minimum sentence, we remand the case

to the trial court for resentencing.

______________________________

JAMES CURWOOD WITT JR., Judge

CONCUR:

______________________________

DAVID H. WELLES, Judge

25

______________________________

L. TERRY LAFFERTY, Special Judge

26