             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT KNOXVILLE                 FILED
                          AUGUST 1998 SESSION
                                                              April 8, 1999

                                                           Cecil Crowson, Jr.
                                                           Appellate C ourt Clerk
STATE OF TENNESSEE,           )
                              )
             Appellee,        )    No. 03C01-9710-CR-00441
                              )
                              )    Washington County
v.                            )
                              )    Honorable Arden L. Hill, Judge
                              )
JUAN ALFONZO HILL,            )    (Rape of a child)
                              )
             Appellant.       )



For the Appellant:                 For the Appellee:

Fred Lance                         John Knox Walkup
804 West Market Street             Attorney General of Tennessee
Johnson City, TN 37601                    and
                                   Sandy C. Patrick
                                   Assistant Attorney General of Tennessee
                                   425 Fifth Avenue North
                                   Nashville, TN 37243-0493

                                   David E. Crockett
                                   District Attorney General
                                   Route 19, Box 99
                                   Johnson City, TN 37601
                                           and
                                   Joe Crumley
                                   Assistant District Attorney General
                                   P.O. Box 38
                                   Jonesborough, TN 37659




OPINION FILED:____________________


AFFIRMED

Joseph M. Tipton
Judge
                                      OPINION



             The defendant, Juan Alfonzo Hill, appeals as of right following his

conviction by a jury in the Washington County Criminal Court for rape of a child, a Class

A felony. The defendant was sentenced to thirty-five years confinement to be served in

the custody of the Department of Correction as a Range II, multiple offender and was

fined twenty-five thousand dollars. In this appeal, the defendant presents the following

issues for our review:

             (1) whether the trial court erred by allowing extensive
             questioning of the defendant on cross-examination about his
             previous convictions;

             (2) whether the trial court erred by admitting a prejudicial tape-
             recorded conversation between the defendant and the officer
             investigating his case; and

             (3) whether the trial court imposed an excessive sentence.

We affirm the judgment of conviction.



             The record in this case reveals that the defendant lived with the victim,

then seven years old, and the victim’s mother. It reflects that on the night of May 16,

1994, when the defendant and victim were home and the victim’s mother was gone, the

defendant had sexual intercourse with the victim. Before trial, the defendant made a

statement to Sergeant Debbie Barron in which he claimed that as he was falling asleep

on the night of the offense, the victim climbed on top of him and began moving on his

penis with her vagina. He claimed that he did not know why he had an erection but that

when he woke up, he pushed off the victim and told her to go to bed. At trial, however,

the defendant testified that he was with the victim’s mother on the night of May 16 and

was never alone with the victim that night. He denied raping the victim.




                                             2
                               I. IMPEACHMENT EVIDENCE

                The defendant contends that the trial court erred by allowing the state to

cross-examine him extensively about his prior convictions for witness coercion and

assault with intent to commit first degree murder. He argues that the evidence should

have been excluded as prejudicial under Rule 403, Tenn. R. Evid. The state contends

that the convictions were admissible pursuant to Rule 609(a), Tenn. R. Evid. The state

further argues that the defendant opened the door to the extensive questioning when

he testified about the convictions on direct examination and gave self-serving

explanations.



                The trial court has discretion in determining whether the probative value of

a defendant’s prior conviction is outweighed by the prejudicial effect of introducing the

conviction. Only an abuse of that discretion may avail the defendant any relief. State v.

DuBose, 953 S.W.2d 649, 652 (Tenn. 1997).



                The record reflects that pursuant to Rule 609, Tenn. R. Evid., the state

filed notice before trial of its intent to use evidence of the defendant’s prior convictions

to impeach the defendant if he testified. The trial court held a hearing on the issue and

concluded that if the defendant testified, the convictions would be admissible to

impeach his testimony. The trial court further found that the probative value of the

convictions outweighed any prejudicial effect.



                The defendant testified at trial and admitted on direct examination that he

had been convicted for witness coercion and assault with intent to commit first degree

murder. He explained in detail the facts surrounding the incident that formed the basis

for the convictions. On cross-examination, the state went into more detail about the

facts surrounding the previous convictions, and the defendant objected. The trial court

agreed that the state was going into more detail than was necessary for impeachment



                                              3
but concluded that the defendant opened the door for the questions by testifying about

the prior convictions in detail on direct examination.



              First, we note that the trial court properly ruled that the defendant’s

convictions were admissible pursuant to Rule 609, Tenn. R. Evid. We see no abuse of

discretion in this regard. Second, we hold that the trial court did not err by allowing the

state to go into detailed questions about the facts surrounding the convictions, in light of

the defendant’s testimony on direct examination. “‘Irrespective of admissibility under

Rule 609 . . ., a conviction may be used to contradict a witness who ‘opens the door’

and testifies on direct examination that he or she has never been convicted of a crime,

or to counter some other facet of direct testimony.’” State v. Kendricks, 947 S.W.2d

875, 883 (Tenn. Crim. App. 1996) (quoting Cohen, Sheppeard & Paine, Tennessee

Law of Evidence, § 609.1 (3d ed. 1995)).



                  II. ADMISSION OF TAPE-RECORDED CONVERSATION

              The defendant contends that the trial court erred by admitting into

evidence a tape-recorded conversation between him and Sergeant Debbie Barron. He

argues that in the recording, he revealed irrelevant and prejudicial information about his

being molested as a child, his drug use, and his prior conviction for driving under the

influence (DUI). The state contends that the conversation was probative because the

defendant recanted portions of his previous statement to police and discussed the facts

of the offense.



              At trial, Sergeant Debbie Barron testified that on June 21, 1994, the

defendant made an unsolicited telephone call to her at the police station. Sergeant

Barron explained that at the time of the call, the telephones were automatically

connected to a recorder. She testified that all but the first few words of the

conversation were recorded.



                                             4
              The tape was played for the jury. During the taped conversation, the

defendant told Sergeant Barron that he was under the influence of sleeping pills when

he previously told her that the victim got on top of him and moved up and down on him.

He said that the statement was not true and that he must have been dreaming or

thinking about something else. He also told Sergeant Barron that he had to make up

something to sound good because he was molested as a child and knew how the victim

felt. The defendant also made a reference to the fact that he had previously used

drugs and had a prior DUI charge.



              The trial court has discretion in determining whether evidence meets the

test for relevancy set forth in Rule 402, Tenn. R. Evid. State v. Forbes, 918 S.W.2d

431, 449 (Tenn. Crim. App. 1995). It is also within the trial court’s discretion to

determine the probative value and danger of unfair prejudice regarding the evidence.

State v. Burlison, 868 S.W.2d 713, 720-21 (Tenn. Crim. App. 1993). This court will only

reverse a trial court’s decision if the trial court abused its discretion. State v.

Williamson, 919 S.W.2d 69, 78 (Tenn. Crim. App. 1995).



              First, we conclude that the trial court did not abuse its discretion by

allowing into evidence the portion of the tape in which the defendant referred to his

being molested as a child. The defendant’s statement related to his recantation of his

earlier confession, and the trial court did not abuse its discretion by determining that the

probative value was not outweighed by the danger of unfair prejudice. With respect to

the defendant’s references to his previous drug use and DUI charge, we question their

relevance. The better practice would have been to redact the irrelevant portions of the

tape prior to trial, although we note that there is no evidence in the record to show that

the defendant attempted to do this. Regardless, the admission of these statements

was harmless in light of the evidence against the defendant. T.R.A.P. 36(b); Tenn. R.

Crim. P. 52(a).



                                               5
                                   III. SENTENCING

             The defendant contends that the trial court erred by imposing an

excessive sentence and by ordering that he serve his sentence in the present case and

a previous sentence consecutively. The state contends that the defendant was

properly sentenced.



             At the sentencing hearing, the state produced evidence that the defendant

was on parole from his conviction for assault with intent to commit first degree murder

at the time of the present offense. The state also produced evidence of the defendant’s

previous convictions for coercion of a witness, DUI and driving on a revoked license.

The defendant was sentenced as a Range II, multiple offender subject to a range of

punishment from twenty-five to forty years. The trial court found the following

enhancement factors applicable, as listed in T.C.A. § 40-35-114:

             (1) The defendant has a previous history of criminal
             convictions or criminal behavior in addition to those necessary
             to establish the appropriate range;

             (8) The defendant has a previous history of unwillingness to
             comply with the conditions of a sentence involving release into
             the community;

             (13) The felony was committed while on . . . . [parole]; [and]

             (15) The defendant abused a position of public or private trust
             ....

It sentenced the defendant to thirty-five years confinement in the Department of

Correction, to be served consecutively to his previous sentence for assault with intent to

commit first degree murder.



             Appellate review of sentencing is de novo on the record with a

presumption that the trial court's determinations are correct. T.C.A. § 40-35-401(d). As

the Sentencing Commission Comments to this section note, the burden is now on the

defendant to show that the sentence is improper. This means that if the trial court

followed the statutory sentencing procedure, made findings of fact that are adequately


                                            6
supported in the record, and gave due consideration and proper weight to the factors

and principles that are relevant to sentencing under the 1989 Sentencing Act, we may

not disturb the sentence even if a different result were preferred. State v. Fletcher, 805

S.W.2d 785, 789 (Tenn. Crim. App. 1991).



              However, “the presumption of correctness which accompanies the trial

court's action is conditioned upon the affirmative showing in the record that the trial

court considered the sentencing principles and all relevant facts and circumstances.”

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In this respect, for the purpose of

meaningful appellate review,

              the trial court must place on the record its reasons for arriving
              at the final sentencing decision, identify the mitigating and
              enhancement factors found, state the specific facts supporting
              each enhancement factor found, and articulate how the
              mitigating and enhancement factors have been evaluated and
              balanced in determining the sentence. T.C.A. § 40-35-210(f)
              (1990).

State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1994).


              Also, in conducting a de novo review, we must consider (1) the evidence,

if any, received at the trial and sentencing hearing, (2) the presentence report, (3) the

principles of sentencing and arguments as to sentencing alternatives, (4) the nature

and characteristics of the criminal conduct, (5) any mitigating or statutory enhancement

factors, (6) any statement that the defendant made on his own behalf and (7) the

potential for rehabilitation or treatment. T.C.A. §§ 40-35-102, -103, -210; see Ashby,

823 S.W.2d at 168; State v. Moss, 727 S.W.2d 229, 236-37 (Tenn. 1986).



              Under the sentencing statute in effect at the time of the offense in the

present case, the sentence to be imposed by the trial court is presumptively the

minimum in the range unless there are enhancement factors present. See T.C.A. § 40-

35-210(c) (1989). Procedurally, the trial court is to increase the sentence within the

range based upon the existence of enhancement factors and then reduce the sentence


                                             7
as appropriate for any mitigating factors. T.C.A. § 40-35-210(d) and (e). The weight to

be afforded an existing factor is left to the trial court's discretion so long as it complies

with the purposes and principles of the 1989 Sentencing Act and its findings are

adequately supported by the record. T.C.A. § 40-35-210, Sentencing Commission

Comments; Moss, 727 S.W.2d at 237; see Ashby, 823 S.W.2d at 169.



              Initially, we note that the defendant has hampered our de novo review in

this case by failing to include the presentence report in the record on appeal. It is

incumbent upon the appellant to prepare a record that conveys a fair, accurate and

complete account of what transpired relative to the issues on appeal. T.R.A.P. 24(b).

In the absence of an appropriate record, we must presume that the trial court’s

determinations are correct. See, e.g., State v. Meeks, 779 S.W.2d 394, 397 (Tenn.

Crim. App. 1988); State v. Beech, 744 S.W.2d 585, 588 (Tenn. Crim. App. 1987).



              The defendant first contends that he received an excessive sentence.

Specifically, he argues that the trial court erred in applying enhancement factor (1) and

by failing to apply in mitigation the fact that his conduct neither caused nor threatened

serious bodily injury. T.C.A. § 40-35-113(1). With respect to the application of

enhancement factor (1), the defendant contends that the state used his conviction for

assault with intent to commit first degree murder, a Class A felony, to establish a higher

sentencing range and separately relied on his conviction for coercion of a witness for

application of enhancement factor (1). He argues that this was improper because the

two convictions were linked together as a single course of conduct. This issue is

without merit. The defendant has two separate convictions for two separate crimes,

and the use of one conviction to establish a higher range and the other conviction to

enhance within that range is proper. Furthermore, the defendant had other convictions

for DUI and driving on a revoked license that would trigger the application of

enhancement factor (1).



                                               8
              The defendant argues that the trial court erred by failing to apply

mitigating factor (1), that the offense neither caused nor threatened serious bodily

injury. T.C.A. § 40-35-113(1). The state concedes that the victim did not suffer serious

bodily injury but argues that the factor should not apply because the defendant’s

conduct threatened serious bodily injury and caused psychological trauma. We

question whether the trial court actually rejected application of mitigating factor (1),

given the fact that the trial court stated that it weighed the mitigating factors raised by

defense counsel. In any event, even with its application, we do not believe it alters the

sentence imposed by the trial court.



              The victim indicated that the sexual penetration was very painful. Her

grandmother testified that the incident and the events surrounding the trial made the

victim nervous, upset, tense and scared. She said that the victim had headaches and

vomiting because of her fear and nervousness. Even if mitigating factor (1) is

applicable, we believe that it is entitled to very little weight, and the thirty-five-year

sentence is supported by the record.



              Finally, the defendant contends that the trial court erred by ordering him to

serve his thirty-five-year sentence consecutively to his previous sentence for assault

with intent to commit first degree murder. We believe that the evidence supports the

trial court’s imposition of a consecutive sentence. The evidence reflects that the

defendant was on parole for the assault conviction when he committed the present

offense. Pursuant to T.C.A. § 40-28-123, the defendant must complete the sentence

for the offense for which he was paroled before serving the subsequent sentence for

the later felony committed while on parole. The defendant’s consecutive sentencing is

mandated by law.




                                               9
              In consideration of the foregoing and the record as a whole, the judgment

of conviction is affirmed.



                                                      __________________________
                                                      Joseph M. Tipton, Judge

CONCUR:



_________________________
Joe G. Riley, Judge



_________________________
Thomas T. W oodall, Judge




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