             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT NASHVILLE                  FILED
                          MARCH 1998 SESSION
                                                          December 31, 1998

                                                          Cecil W. Crowson
STATE OF TENNESSEE,           )                          Appellate Court Clerk
                              )
             Appellee,        )    No. 01C01-9609-CC-00404
                              )
                              )    Cheatham County
v.                            )
                              )    Honorable Allen W. Wallace, Judge
                              )
TERRY W. SMITH,               )    (Aggravated kidnapping, attempted aggravated
                              )    rape)
                              )
             Appellant.       )


For the Appellant:                 For the Appellee:

G. Kline Preston, IV               John Knox Walkup
Washington Square Two, Suite 416   Attorney General of Tennessee
222 Second Avenue North                   and
Nashville, TN 37201                Lisa A. Naylor
                                   Assistant Attorney General of Tennessee
                                   450 James Robertson Parkway
                                   Nashville, TN 37243-0493

                                   Dan M. Alsobrooks
                                   District Attorney General
                                   Court Square, P.O. Box 580
                                   Charlotte, TN 37036-0580
                                           and
                                   James W. Kirby
                                   Assistant District Attorney General
                                   105 Sycamore Street
                                   Ashland City, TN 37015




OPINION FILED:____________________

AFFIRMED

Joseph M. Tipton
Judge
                                       OPINION



              The defendant, Terry W. Smith, appeals as of right following his

convictions in the Cheatham County Circuit Court for aggravated kidnapping and

attempted aggravated rape, both Class B felonies. He was sentenced as a standard,

Range I offender to ten years confinement in the custody of the Department of

Correction for each conviction, to be served concurrently. On appeal, he presents the

following issues for our review:

              (1) whether the evidence is sufficient to support the
              convictions;

              (2) whether the trial court erred by denying his Motion to
              Suppress the victim’s identification of the defendant in a
              lineup;

              (3) whether the state’s failure to provide the defendant with a
              copy of a videotape until the day of trial violated the
              defendant’s rights to due process and a fair trial;

              (4) whether the state’s failure to conduct an investigation
              violated the defendant’s due process rights;

              (5) whether the trial court erred by allowing the state to present
              evidence of the defendant’s criminal history at trial; and

              (6) whether the trial court erred in sentencing by failing to find
              mitigating factors.

We affirm the judgments of conviction.



              Judy Smith, the victim, testified that on January 1, 1995, she and her

estranged husband, James Smith, saw a movie in the afternoon, ate dinner and

returned to James Smith’s house at about 7:00 p.m. She said she then went to a Shell

station to use a pay telephone to call her babysitter to check on her daughter. She said

James Smith did not have an operable telephone in his apartment. She said the pay

telephone was outside of the Shell station. She said that she got out of her car to use

the telephone, but a man was using it. She said she turned around to walk back to her

car, and she saw the defendant standing next to her car holding a hunting knife with a



                                              2
fixed blade. She said the defendant told her to get in her car and drive. She said she

had to go through the back driver’s side in order to open the front passenger’s door to

let the defendant in her car because the front passenger’s door did not have a handle

on the outside.



             Ms. Smith testified that once inside the car, the defendant ordered her to

drive and gave her directions. She said he eventually directed her to the fairgrounds in

Ashland City and told her to stop. She said he told her to get out, and when she did, he

pushed her down into a mud puddle. She said she stood up, and he told her to take off

her clothes. She said she stripped down to her bra and panties, and he pushed her

down into the mud puddle again. She said he then started to undo his pants and get on

top of her when a car drove by. She said the approaching car scared the defendant,

and he got up, climbed a fence and ran away.



              Ms. Smith said she got into her car and drove to her husband’s house.

She said she was still wearing only her bra and panties. She said she arrived at his

house at 7:30 or 7:45 p.m., and he called an ambulance. She said she went to the

hospital, but she did not explain what had happened to her until about 9:00 or 9:15 p.m.

when she was at the police station. She said she described her attacker to Detective

Marc Coulon and Phyllis Shafer of the Ashland City Police Department. She said she

told them that her attacker was a short black male with a “scruggy” beard, and that he

was wearing a black or dark blue baseball cap with the letter “S” on it and a light

windbreaker jacket.



              Ms. Smith testified that shortly thereafter, she was asked to identify the

attacker from a lineup. She said the lineup consisted of four black males, and they

were standing outside with lights shining on them. She said the officers told her to look

at all four suspects and to be certain she knew which one was the attacker. She said



                                             3
she looked over the men once, then a second time. She said the third time the men

had lights flashing on their faces, and she identified the defendant. She said the

defendant was wearing the same clothing during the lineup as he was wearing when he

attacked her. She said she had no doubt that the defendant was the attacker and that

the officers told her to be certain she made the correct identification. She said none of

the officers did anything to indicate who she should pick. She said that although she

was very emotional, she felt calm when she identified the defendant.



              On cross-examination, Ms. Smith testified that she got a full front view of

the defendant as she was walking to her car at the Shell station. She explained that

she opened the door for the defendant instead of trying to run away because he had a

knife and she was scared. She said the defendant may have threatened to kill her, but

he did not say that he was going to rape her. She said she did not remember if the

other men in the lineup were wearing hats with an “S” on them, although she admitted

that at the preliminary hearing, she testified that the hat was a key factor in her

identification. She said she thought the defendant had a full set of teeth. She said she

could not explain why there did not appear to be any mud on the rear of the jeans she

was wearing when she was pushed into the mud puddle. She testified that the fence

the defendant jumped when he ran away was about as tall as his neck, and it had

barbed wire on top. She said that at the preliminary hearing, she testified that the

defendant was wearing a blue jacket, dark pants, and had no identifiable facial

characteristics. She said that at the lineup, she identified the defendant on her third

look because she wanted to be certain of the identification. She said she remembered

the defendant’s eyes because they looked devious. On recross-examination, Ms. Smith

said that she would have remembered if the defendant had been missing a front tooth.



              Officer Scott Davidson of the Ashland City Police Department testified that

at 7:30 p.m. on the night of the incident, the dispatcher reported a possible rape. He



                                             4
said that he and another officer went to the Shell station to look for witnesses and

evidence. He said he then went to the fairgrounds and found a T-shirt and blue jeans

lying in a mud puddle. He said that he secured the scene and waited for other officers

to arrive.



             Officer Ray Morris, also of the Ashland City Police Department, testified

that he met James Smith at Smith’s house. He said the victim was there, wrapped in a

blanket, and she was too upset to talk. He testified that James Smith said the victim

told him that somebody tried to rape her at a pay telephone. Officer Morris said the

victim was screaming and crying, and he could not get her to calm down. He said the

victim appeared to be more composed at the lineup.



             Cindy Mason testified that she was working at the Shell station on the

night of the incident. She said that sometime after dark, three black men came into the

store. She said two of the men were rowdy, and a third man explained that the other

two men were drunk. She said the men were driving a big, old, dark car. She said the

men left but then came back not more than an hour later to get a dollar’s worth of gas.

She said the men were then arrested. She identified the defendant as one of the men

that was allegedly drunk. She admitted that she told her employer she had not seen

anything that night, but she explained that she meant she could not see the victim or

the pay telephone.



              James Smith testified that on the evening of January 1, 1995, the victim

went to the Shell station to use a pay telephone. He said that it was taking longer than

he expected for her to return, and he was beginning to worry about her. He said that

when the victim did return, she was wearing only a bra and panties, and she was

screaming and crying. He said the victim told him she had been raped. He said that he

ran upstairs to call 9-1-1, and the victim was hysterical. He said he had never seen her



                                            5
like that. He said he went with the victim to the hospital and then to the police station.

He said that at the station, the victim described the attacker as a short, heavy black

man wearing a dark hat with an “S” on it. He said the victim became emotional when

she identified the defendant from the lineup. He testified that she threw her arms

around him and shook, saying, “That was him. I know it’s him. That was him.”



              Phyllis Shafer, an administrative assistant with the Ashland City Police

Department, testified that her duties include attending interviews with female victims to

make them more comfortable. She said she went to the medical center to see the

victim, and the victim seemed scared. She said the victim related the following events

to her: A black male put a knife to her, forcing her to get into a car and drive to the

fairgrounds. The man pushed her out of the car into a mud puddle, then told her to

take off her pants. The man threw the pants in a mud puddle and pushed her down

again. He then told her to take off her top, which she did, and he tore or cut her bra.

He pushed her down, stood over her, and started to take off his pants, but a car drove

up, and the man left.



              Ms. Shafer said the victim told her that the man did not penetrate her.

She said the victim described the attacker as a fat black male with a “close-crop type

beard,” wearing glasses and a black or blue cap with an “S” on it. Shafer testified that

she was present when the victim identified the defendant in the lineup. She said the

victim was frightened, and the first time the victim looked, she said “I think that’s him.”

Shafer said Detective Coulon told the victim to be sure, and the victim looked again and

said, “Yes, that’s him, I’m sure of it.” Photographs of the victim taken at the hospital

revealing dirt and a bruise on the victim’s neck and hip were introduced into evidence.

On cross-examination, Shafer said she did not recall the defendant wearing glasses at

the lineup.




                                              6
              Officer David Branson of the Ashland City Police Department testified that

he was not on duty the night of the incident, but he heard about it on his radio. He said

he got in his personal car and went to the fairgrounds to check the scene. He said he

arrived at the fairgrounds at about 8:00 p.m. and left a little after 9:00 p.m. He said he

stayed in his car and positioned the car such that he had a view of the road. He said

that he noticed a car traveling down the road at a high rate of speed, although he did

not know the exact speed because he did not have his radar. He said that about thirty

to forty minutes later, he went to the Shell station to check the scene. He said he saw

the defendant’s car at the Shell station and recognized it as the car that he saw at the

fairgrounds. He said the car was a two-tone black four-door Cadillac. On cross-

examination, Branson admitted that it was rainy and misty that night.



              Detective Marc Coulon of the Ashland City Police Department testified

that he went to the fairgrounds and recovered the victim’s jeans and T-shirt with Officer

Morris. He said the jeans had mud on the leg. He said he then went to the hospital

and talked briefly with the victim. He said the victim was scared and was crying. He

said she gave a brief description of the attacker, and it was essentially the same

description the victim gave later that night at the police station.



              Detective Coulon testified that at the police station, the victim appeared

worried and emotional. He said he interviewed the victim for about an hour because he

wanted to be certain that her version of the events was consistent, and she was telling

the truth. He said she described the attacker as a short, fat, black male with a

“scraggly” beard and a partial mustache, wearing dark clothes and a black cap with an

“S” on it. He said the victim described the attacker at about 9:00 p.m., and he

subsequently put all officers on a lookout for someone matching that description. He

said that shortly thereafter, the defendant and his two brothers were located and

brought to the police station. He said the defendant fit the victim’s description.



                                              7
             Detective Coulon testified that he wanted to have six men in the lineup,

but he had only four because he could find only one black male who resembled the

victim’s description in addition to the defendant and his brothers. He said the victim

stayed in the police chief’s office and looked out of a two-by-three foot window into the

parking lot where the lineup occurred. He said he placed the men twenty to twenty-five

feet from the window and parked a patrol car to the right of the window with the

headlights shining on the men in order to recreate the lighting when the incident

occurred. He said he used a spotlight once to shine on each man individually. He said

he instructed the victim to look outside and see if she could identify anybody. He said

the victim became emotional and said, “That’s him. Number three,” meaning the

defendant. He said no identifiable fingerprints were found in the victim’s car.



             On cross-examination, Detective Coulon said the victim did not describe

the defendant as wearing glasses, although he knew that Ms. Shafer reported that the

victim described the attacker as wearing glasses. He said that no knife was found, and

he did not try to get a search warrant for the defendant’s house to look for a knife. He

said the fence at the fairgrounds was about the defendant’s shoulder height with barbed

wire on top. He said he did not check the fence for clothing remnants because he did

not know the defendant had climbed the fence until trial. He said he did not check the

defendant for any wounds. He said he did not do any fingernail tests nor comb the

victim’s car for hair. He admitted that after the defendant was arrested, he told an

employee of the Ashland City newspaper that the investigation was ongoing, but he

explained that he considered the investigation to be ongoing until the trial was

complete. He said that in the lineup, only the defendant wore a hat with an “S” on it.



              On redirect examination, Detective Coulon testified that all the men in the

lineup were wearing the clothes they had on when they were taken into custody. He

said they were wearing dark clothes. He said that the absence of fingerprints was not



                                            8
unusual because fingerprints usually become smudged when the fingers slide across a

surface. He said that he believed it would have been easy to jump the fence at the

fairgrounds.



                Ruth Hunter testified that she is the manager of the Shell station. She

said that the pay telephone is on the side of the building but that it did not work on the

night of the incident and had been inoperable for some time. She said she was called

into work on the night of the incident to retrieve the videotape that was recording inside

the station that night. A portion of the videotape was played for the jury. Hunter

testified that she recognized the defendant in the videotape, and the videotape

registered 8:50 p.m. On cross-examination, Hunter said the time registered on the

videotape may have been one hour ahead or one hour behind because of the daylight

savings time change.



                Detective Coulon testified again and said that he had kept possession of

the videotape from the night he got it from the Shell station. He said that he did not

examine the videotape to see if there were any other black males in the Shell station

that night. He agreed that the videotape showed a black male at 9:48 p.m. then again

at 10:18 p.m. He agreed that the man on the videotape at 10:18 had a white spot in the

middle of his baseball cap. On cross-examination, Detective Coulon said he could not

positively identify the man on the videotape as the defendant. He said that there were

two other black men on the videotape, but they did not match the victim’s description of

the attacker.



                Lenzo Smith, the defendant’s father, testified that his birthday is

December 31, and the family always gathers on New Year’s Day to celebrate. He said

that on January 1, 1995, his family, including the defendant, had dinner together at his

house at about 6:00 p.m. He said that everyone stayed at the table until about 7:30



                                               9
p.m. He said that earlier in afternoon, he, the defendant, and another son started to

drive to Nashville in a white Buick. He said they had to turn around and go back home

when they realized they did not have enough gas. He said that as they were driving

home, he met his daughter by chance at a Pantry store, and she gave him a check for

gas. He said he put gas in the car and went back home. He said that his house is

about twelve miles from Ashland City. He said that the defendant and two of the

defendant’s brothers left the house after 8:00 p.m. to go to Nashville. He said the two

brothers arrived back at the house around midnight.



              On cross-examination, Mr. Smith said his wife left the house that night

before the defendant, and she was also headed to Nashville. He said he was unaware

that his son Richard testified at the preliminary hearing that Richard told a Shell station

employee that he and his brothers had been partying in Nashville and were drunk. He

said that when the defendant left home that night, he was wearing a black Chicago

Bulls jacket, dark jeans, and a cap with “SOX” on it. He said the defendant is about

five-feet, six-inches tall, weighing about two hundred and ten pounds. He said the

defendant does not grow a beard and seldom has to shave, although he usually has a

slight mustache. He said that from looking at the photograph of the defendant in the

lineup, it did not appear that the defendant had a mustache.



              Helen Smith, the defendant’s stepmother, testified that the defendant, her

husband, Richard and Lenzo, Jr. went to Nashville the afternoon of January 1, 1995.

She said her husband did not make it to Nashville because he did not have enough

gas. She said she realized her husband might run out of gas, so she sent his daughter

in that direction with a check for gas money. She said they all ate dinner from about

6:00 to 7:15 p.m. She said she used her son-in-law’s cellular telephone to call her

grandchildren in Nashville. She said she left to go to Nashville around 7:45 to 8:00 p.m.

She testified that the defendant could not have committed the crimes.



                                            10
             On cross-examination, Helen Smith testified that her husband, the

defendant, Richard and Lenzo, Jr. left to go to Nashville at about 4:00 p.m. and

returned around 5:30 p.m. She said it takes about thirty minutes to get from their house

to Ashland City. She said she returned home from Nashville at about 10:00 p.m. that

night, and Richard and Lenzo, Jr. were there. She testified that the defendant was

good natured and had a heart. She admitted that she knew the defendant when he

was arrested twice in 1987 for assault, in 1991 for aggravated assault, and in 1995 for a

drug charge. She said the defendant does not have a full set of teeth.



              On redirect examination, Helen Smith said that the defendant has been

missing a front tooth since he was sixteen. She also said the defendant was not

convicted of any of his previous charges.



              Michael Scales, the defendant’s brother-in-law, testified that he ate dinner

with the family on January 1, 1995. He said he brought his cellular telephone, and the

defendant used the telephone to call the defendant’s sister at 7:21 that night. He said

he knew the time because he asked for it to be made a part of his billing records.



              On cross-examination, Scales testified that he arrived at the house around

6:00 p.m. and ate dinner from 6:15 to 6:30. He said that Mr. Smith, Richard and Lenzo,

Jr. were not there when he arrived but the defendant was. He said he did not

remember when Mr. Smith, Richard and Lenzo, Jr. returned nor did he remember if

Lenzo, Jr. was at the house. He said he also did not remember when the defendant left

the house that night. He said that he saw the defendant at the house the next morning.

After looking at the defendant’s photograph from the lineup, he said it looked like the

defendant had a full set of teeth.




                                            11
                The defendant testified that he went to a gathering for his father on

January 1, 1995. He said that he, his father, and his older brother started out toward

Nashville that afternoon but turned around because they did not have enough gas. He

said they ran into his sister, and she gave them a check for gas money. He said they

went back to the house and ate dinner at about 7:15 p.m. He said he stayed until 9:00

or 9:30 p.m., then left with his two brothers for Nashville to find his nephew. He said

they traveled in a dark green Cadillac. He said they could not find his nephew in

Nashville, and they headed back toward Ashland City. He said they stopped to fix their

car at a Ryder rental truck store, and he knew one of the men working there. He said

the man asked him to go to the Shell station to buy some cigarettes, and he and his

brothers went to the station. He said that while they were there, officers arrived and

arrested him.



                The defendant testified that the officers took him and his brothers to the

police station and had them stand in a lineup. He said he was the only one in the

lineup wearing a hat with “SOX” on it. He also said he was the only chubby man in the

lineup. He said the photograph of him in the lineup does not reflect a beard because

he cannot grow one. He said he might have a mustache in the photograph. He said

that he stayed in jail one month before he was released on bond, meaning that his

brother-in-law could not have seen him the next morning at the house. The defendant

testified that when he was arrested, he was wearing a White Sox hat, a black Chicago

Bulls jacket with a big red bull on the back, blue jeans, and big thick shoes. He said the

barbed wire fence at the fairgrounds came up to his chin, and it would have been very

difficult for him to have jumped it. He said he did not wear glasses and did not drink.

He said he was in the wrong place at the wrong time.



                On cross-examination, the defendant said that he left with his father and

brother to go to Nashville at 3:00 p.m. He said they got back home at about 4:00 p.m.



                                              12
after they realized they had no gas and turned around. He said they ate dinner at about

7:00 p.m. and finished at about 8:00 p.m. He said he and his brothers left to go back to

Nashville at about 9:00 or 9:30 p.m. He said they arrived in Nashville at about 10:00

and stayed until 10:30 p.m. He said they stopped at Ryder at about 11:00 p.m. to fix

the alternator on the Cadillac then went to the Shell station at about 11:15 p.m. He

admitted that he could not explain how he could have been arrested at 9:35 p.m. yet

claim to have been at the Shell station at 11:15 p.m. He admitted that he could not

have gone to Nashville, stayed thirty minutes, then driven back to Ashland City from

9:00 to 9:35.



                The defendant admitted to having hair on his lip, but he said he would not

call it a mustache. He said he heard that Cindy Mason was fired from the Shell station

for selling drugs. He said he had never seen the victim before, but he could not explain

why the victim was able to describe him. He said he had never heard of the fairgrounds

before this case. He said Officer Branson did not see his Cadillac driving past the

fairgrounds that night but that it might have been a man who travels from Ashland City

to Clarksville in a Cadillac.



                           I. SUFFICIENCY OF THE EVIDENCE

                The defendant contends that the evidence is insufficient to support his

convictions for attempted aggravated rape and aggravated kidnapping. With respect to

the attempted aggravated rape conviction, he argues that there is no proof that he

touched the victim in an attempt to penetrate her, and there is no evidence that he took

a substantial step toward the completion of the crime because he did not take off his

clothes, and the victim was still wearing a bra and panties. With respect to the

aggravated kidnapping conviction, the defendant argues that it is not a distinct and

separate offense from attempted aggravated rape. The state argues that the evidence




                                             13
is sufficient to support both convictions and that aggravated kidnapping is a separate

offense from attempted aggravated rape.



                        A. ATTEMPTED AGGRAVATED RAPE

             The defendant argues that the evidence is insufficient to support his

conviction because there is no evidence that he took a substantial step toward the

completion of the crime. He contends that there is no proof that he touched the victim

in an attempt to penetrate her, and neither he nor the victim were unclothed.



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

on appeal is “whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.

2781, 2789 (1979). This means that we do not reweigh the evidence, but presume that

the jury has resolved all conflicts in the testimony and drawn all reasonable inferences

from the evidence in favor of the state. See State v. Sheffield, 676 S.W.2d 542, 547

(Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).



             Tenn. Code Ann. § 39-12-101 defines criminal attempt as follows:

             (a) A person commits criminal attempt who, acting with the
             kind of culpability otherwise required for the offense:

             ...

                    (3) [a]cts with intent to complete a course of  action
             or cause a result that would constitute the offense, under the
             circumstances surrounding the conduct as the person
             believes them to be, and the conduct constitutes a
             substantial step toward the commission of the offense.

Aggravated rape is defined as “unlawful sexual penetration of a victim by the defendant

or the defendant by a victim accompanied by any of the following circumstances: (1)

Force or coercion is used to accomplish the act and the defendant is armed with a

weapon . . . .” T.C.A. § 39-13-502(a)(1).


                                            14
              We believe that the evidence is sufficient to support the defendant’s

conviction for attempted aggravated rape. Taken in the light most favorable to the

state, the evidence shows that the defendant, brandishing a knife, forced the victim to

drive to a remote location. He then made her get out of her car and take off her

clothes. The defendant then pushed the victim to the ground, tore her bra, and started

to undo his pants. A rational trier of fact could have concluded that the defendant’s

actions showed an intent to commit aggravated rape and constituted a substantial step

toward that end.



                            B. AGGRAVATED KIDNAPPING

              The defendant argues that his conviction for aggravated kidnapping

cannot stand because it is not a separate and distinct offense from attempted

aggravated rape. He contends that our supreme court’s holding in State v. Anthony,

817 S.W.2d 299, 306 (Tenn. 1991), precludes convictions for both offenses because

the detention of the victim in the present case was no more than was necessary to carry

out the attempted aggravated rape. Thus, he argues that the dual convictions violated

his right to due process under both the Tennessee and United States Constitutions.



              The defendant’s reliance on Anthony is misplaced. In Anthony, an armed

robbery and kidnapping case, the court specifically noted that the victims were detained

only briefly, they were not harmed in any way, and they were not taken to a different

location where they might have been subject to additional harm. Id. at 307. The court

stated that if the victims in Anthony had been moved from the scene of the robbery

“under circumstances giving rise to ‘a substantially increased likelihood of harm to the

victims,’” the court’s conclusion may have been different. Id. at 308 (citation omitted).



              The facts of the present case reveal a situation far different from that in

Anthony. Here, unlike in Anthony, the victim was not detained only briefly. On the



                                            15
contrary, she was forced to drive for about fifteen minutes to a remote location where

she was subject to additional harm. The defendant’s passing contention that every

rape involves some degree of detention is immaterial in light of the facts of the present

case. The defendant engaged in far more than mere detention for the sole purpose of

attempting to commit an aggravated rape because he forced the victim to drive to a

completely different location about fifteen minutes away. The aggravated kidnapping

facilitated the attempted aggravated rape rather than being incidental to it. We

conclude that the facts of this case are significantly different from Anthony, and the

defendant’s due process rights were not violated by dual convictions for attempted

aggravated rape and aggravated kidnapping.



                                       II. LINEUP

              The defendant argues that the trial court erred by denying his Motion to

Suppress the victim’s identification of him in a lineup on the night of the offense. He

contends that the lineup was so suggestive that both it and the victim’s subsequent

identification of him at trial were unreliable and violated his due process rights. The

state contends that the procedures used in the lineup were not unnecessarily

suggestive.



              At the suppression hearing, the defendant testified that the lineup

consisted of him, his two brothers, and another black male whom he did not know. He

said the lineup was conducted outside, and he said that an officer kept walking by him.

He also said that an officer pulled down his cap.



              Detective Marc Coulon testified that the victim went through the lineup

twice before she identified the defendant. He said it took the victim about three or four

minutes to identify the defendant, but she did not waver when she identified him.




                                            16
              At the end of the suppression hearing, the trial court denied the

defendant’s motion. The court stated that it was unclear whether an officer touched the

defendant’s cap and when the touching occurred. However, it determined that even if

an officer did touch the defendant’s cap, under the factors set forth in Neil v. Biggers,

409 U.S. 188, 198, 93 S. Ct. 375, 381-82 (1972), the procedures used and the victim’s

identification did not violate the defendant’s due process rights. We agree.



              When the constitutionality of a lineup is challenged, suppression is only

required when there is an unnecessarily suggestive procedure, and the totality of the

circumstances show that the identification was unreliable because of the

suggestiveness. See Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253

(1977). In addition, a subsequent in-court identification is proper unless the pretrial

identification was so suggestive that there is a substantial likelihood of irreparable

misidentification. See Sloan v. State, 584 S.W.2d 461, 466 (Tenn. Crim. App. 1978).



              In Neil v. Biggers, the Supreme Court identified the following factors to be

considered when determining whether an identification is reliable and thus admissible:

              (1) the opportunity of the witness to view the criminal at the
              time of the crime,

              (2) the witness’ degree of attention,

              (3) the accuracy of the witness’ prior description of the criminal,

              (4) the level of certainty demonstrated by the witness at the
              confrontation, and

              (5) the length of time between the crime and the confrontation.

We believe that these factors all favor the reliability of the identification in the present

case.



              The victim had ample opportunity to view the defendant at the time of the

offenses. She testified that she had a full front view of the defendant at the Shell



                                              17
station. In addition, she was held captive by the defendant for about fifteen minutes,

thus allowing her time to view him.



              The victim’s degree of attention is evidenced by the accuracy of her

description, and both of these factors favor admissibility. She described the defendant

as a short, fat black male with a “scruggly” beard, a dark jacket, dark pants, and a hat

with an “S” on it. She also testified that she remembered the defendant’s eyes because

they were squinty and looked devious. The photograph of the defendant made during

the lineup and admitted into evidence at trial reveals that the victim’s description was

accurate.



              The defendant complains that the victim’s description was not reliable

because it was inaccurate and inconsistent. He argues that the victim told Phyllis

Shafer that the attacker was wearing glasses and had a full set of teeth, neither of

which accurately describes him. We still believe that under the factors set forth in Neil

v. Biggers, the victim’s identification is reliable. A victim’s description need not be

perfect to be reliable. See State v. Henry Lee Martin, No. 01C01-9411-CR-00397,

Davidson County (Tenn. Crim. App. May 24, 1996), aff’d as modified, 964 S.W.2d 564

(Tenn. 1998) (concluding that, “[a]lthough imperfect, the descriptions the witnesses

gave police are sufficiently consistent with the defendant.”). A comparison of the

victim’s description to the photograph of the defendant before the lineup, combined with

the factors in Neil that favor admissibility, lead us to conclude that the victim’s

description was reliable, and the trial court did not err by denying the Motion to

Suppress.



              The level of certainty of the victim and the length of time between the

crime and the identification also favor admissibility. The victim testified at trial that

when she identified the defendant in the lineup, she was certain that he was the



                                              18
attacker. Detective Coulon testified that the victim never wavered in her identification.

The defendant complains that because the victim did not immediately identify him, her

identification is unreliable. On the contrary, we believe that the victim is to be

commended for realizing the importance of her identification and not jumping to a

rushed decision. In addition, the fact that the identification occurred a mere three hours

after the attack lends credibility to the victim’s identification because the events were

fresh in her mind.



              Finally, the defendant complains that he was the only person in the lineup

wearing a cap with an “S” on it, and an officer pulled down his cap during the lineup.

We are unpersuaded. A review of the photographs of the men in the lineup reveals that

all four men were wearing baseball caps. Although the defendant’s cap appears to be

the only one with a white “S” on it, his cap also has an “O” and an “X” on it, letters which

the victim did not include in her description of the defendant. In addition, one of the

other men in the lineup is wearing a hat with an off-white “S” on it. Although the victim

testified at the preliminary hearing that the hat was a key factor in her identification of

the defendant, she testified at trial that she could not remember whether the other men

in the lineup had hats with an “S” on them. This fact, combined with her testimony that

she remembered the defendant’s squinty eyes, points to the conclusion that the

defendant’s hat was not the sole basis for her identification.



              With respect to the defendant’s contention that an officer pulled down his

hat, we note that there is no evidence that the hat was pulled down during the lineup.

Furthermore, the victim testified that the officers did not do anything to suggest which

man she should pick. We conclude the lineup was not so unnecessarily suggestive that

the defendant’s due process rights were violated.



                                  III. BRADY MATERIAL



                                             19
              The defendant argues that the state failed to produce requested

exculpatory material in violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194

(1963). Specifically, he argues that the state failed to provide a copy of the Shell

station videotape, pictures of the victim’s bruises, and the results of a fingerprint

analysis of the victim’s car performed by the Ashland City Police Department. The state

responds that the defendant had an opportunity to view the videotape and the pictures

before trial. It asserts that the defendant waived any issue respecting the photographs

because he failed to object to their admission at trial and failed to raise the issue in his

Motion for a New Trial. Finally, the state argues that even if the evidence was

wrongfully withheld, the defendant suffered no prejudice.



              In Brady, the United States Supreme Court determined that “suppression

by the prosecution of evidence favorable to an accused upon request violates due

process where the evidence is material either to guilt or punishment, irrespective of

good faith or bad faith of the prosecution.” 373 U.S. at 87, 83 S. Ct. at 1196-97; see

also Hartman v. State, 896 S.W.2d 94 (Tenn. 1995). However, the state is not required

to disclose information that the defendant already possesses or is able to obtain. State

v. Marshall, 845 S.W.2d 228, 233 (Tenn. Crim. App. 1992).



              Before a defendant is entitled to relief under Brady, he must establish that

(1) the prosecution suppressed the evidence, (2) the evidence suppressed was

favorable to the defendant, and (3) the evidence was material. 373 U.S. at 87, 83 S.

Ct. at 1196-97. Evidence is considered material under this standard only if there is a

reasonable probability that had the evidence been disclosed to the defense, the results

of the proceeding would have been different. Kyles v. Whitley, 514 U.S. 419, 433, 115

S. Ct. 1555, 1565 (1995) (citation omitted); State v. Edgin, 902 S.W.2d 387, 390 (Tenn.

1995). In addition, the burden of proving a Brady violation rests with the defendant, and




                                             20
the violation must be proven by a preponderance of the evidence. Edgin, 902 S.W.2d

at 389; State v. Spurlock, 874 S.W.2d 602, 610 (Tenn. Crim. App. 1993).



                                     A. VIDEOTAPE

              First, the defendant argues that the state failed to disclose the existence

of the videotape made at the Shell station on the night of the offense until the day of

trial and that he did not have an adequate amount of time to review the videotape

before trial. He contends that the videotape establishes a time line within which the

defendant was present at the Shell station and could have been used to contradict the

testimony of Cindy Mason. The state asserts that the trial court ordered that the trial be

continued until 1:00 p.m. in order for the defendant to have an opportunity to review the

videotape. The defendant responds that he did not have an opportunity to view the

videotape until 1:00 p.m., which was after Cindy Mason had testified.



              A careful review of the record reveals that when the trial court discovered

that the defendant had not had an opportunity to view the videotape on the morning of

trial, it ordered that the videotape be provided to the defendant and that he have an

opportunity to review the videotape at 1:00 p.m. that day. The trial court stated that, if

necessary, it would continue the trial at that time to allow the defendant to view the

videotape.



              Although the defendant was entitled to view the videotape before trial, we

conclude that he has failed to show how the outcome would have been different had he

been given such an opportunity. He contends that he could have questioned the

credibility of Cindy Mason, and he avers that Ms. Mason’s testimony was the

centerpiece of the state’s proof, aside from the victim. Specifically, he argues that Ms.

Mason testified that the defendant was in the store a little before 8:00 p.m. and then

again a little before 9:00 p.m. He contends that Ruth Hunter’s testimony that she saw



                                            21
the defendant on the videotape only once, at a little before 9:00 p.m., contradicts Ms.

Mason’s testimony. We fail to see how the testimony is contradictory. The fact that Ms.

Hunter only saw the defendant on the videotape once does not necessarily mean that

he was not in the store. In addition, any inconsistencies between the testimony of Ms.

Hunter and Ms. Mason would have been obvious to the jury. These facts, combined

with the other evidence, lead us to conclude that the defendant has failed to show that

he was prejudiced by the denial of access to the videotape until the day of trial.



                            B. PHOTOGRAPHS OF VICTIM

              The defendant also complains that the state failed to disclose

photographs of the victim taken at the hospital after the offense. The photographs

reveal bruising on the victim’s neck and lower back. The defendant claims that he did

not have access to the photographs until the morning of trial. He sought a continuance

that morning because he wanted an expert to review the photographs to determine the

age of the bruises. However, the Motion for a Continuance was denied.



              Initially, the state contends that the defendant has waived this issue

because he failed to object at trial and failed to raise the issue in his Motion for a New

Trial. However, the record reveals that the defendant requested a continuance once he

learned of the photographs, and in his Motion for a New Trial, he argued that the trial

court erred by denying his Motion for a Continuance. We will review the issue.



              The state’s response to the defendant’s Motion for Discovery, filed

November 29, 1995, states that it was “in possession of various photos of the victim.”

Thus, the defendant had ample pretrial notice of the existence of the photographs.

However, the defendant argues that he tried to view the photographs the week before

trial, but he was denied access by Detective Coulon. While we in no way condone the

denial of access to the photographs, we fail to see how access would have rendered a



                                            22
reasonable probability that the results of the trial would have been different. The

defendant sought to seek expert review of the photographs purportedly to determine

whether the bruises were fresh. However, the age of the victim’s bruises holds little

significance in light of the fact that the basis of the aggravated kidnapping and

attempted aggravated rape convictions was the defendant’s use of a deadly weapon,

not serious bodily injury to the victim, and there was no question that the victim was

attacked. We fail to see prejudice to the defendant.



                             C. FINGERPRINT ANALYSIS

              Finally, the defendant argues that the state failed to disclose the results of

a fingerprint analysis of the victim’s car until trial. The state makes no argument in

response. In his request for discovery, the defendant asked that the state provide all

results of scientific tests or experiments, and the state responded that it did not possess

any such items. However, at trial, Detective Coulon testified that a fingerprint analysis

of the victim’s car was performed, but no identifiable prints were discovered. The state

had an obligation to disclose such information to the defendant. In any event, the

existence and results of the analysis were disclosed to the defendant during trial, and

the defendant had an opportunity to cross-examine Detective Coulon about them. The

defendant has failed to show how he was prejudiced by the delayed disclosure.




                                            23
                             IV. FAILURE TO INVESTIGATE

              The defendant argues that he was denied due process because the police

did not adequately investigate the case. He contends that the police did not ask the

victim to participate in voice-identification, that they stopped investigating once they

arrested the defendant, that they did not try to obtain hair from the victim’s car, that they

did not inspect the defendant’s body for wounds, that they searched for the knife only

briefly, and that they did not look for fragments of skin or clothing on the fence. He

argues that the failure to perform all of these tasks, combined with the victim’s

precarious identification, denied him due process under both the United States and

Tennessee Constitutions. The state contends that the police adequately investigated

the case and that the defendant is implicitly arguing that the officers used false

evidence to convict him.



              Initially, we note that the defendant’s failure to raise the issue in his

Motion for a New Trial bars our review of the issue short of the record reflecting plain

error. T.R.A.P. 3(e); T.R.A.P. 52(b). No such error exists. Due process does not

require the police to conduct a particular type of investigation. Rather, the reliability of

the evidence gathered by the police is tested in the crucible of a trial at which the

defendant receives due process.



                V. EVIDENCE OF DEFENDANT’S CRIMINAL RECORD

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

question his stepmother, Helen Smith, regarding his previous criminal charges. He

contends that the questioning was improper and prejudicial, in light of the fact that the

trial court had already granted a Motion in Limine to limit the use of the defendant’s

record. He also argues that he was denied the right to a fair trial because the state did

not disclose before trial the defendant’s criminal record, as he requested. The state




                                             24
argues that the defendant opened the door to the introduction of the evidence by asking

Helen Smith if she thought the defendant could have committed the crimes.



              At the end of her direct examination, Helen Smith testified, upon

questioning by the defendant’s attorney, that she did not believe that the defendant was

capable of committing the offenses. On cross-examination, she stated that the

defendant was good-natured and that he had a heart. The state sought to question Ms.

Smith regarding whether she knew the defendant when he was arrested twice in 1987

for assault, in 1991 for assault and aggravated assault, and in 1995 for a drug offense

and whether these charges factored into her opinion. The defendant objected, and

following a jury-out hearing, the trial court overruled the objection, finding that the state

could test the witness’ opinion of the defendant’s character. We believe that the trial

court properly allowed the questioning under Rule 405(a), Tenn. R. Evid. The trial court

complied with the procedures of the rule and instructed the jury that the testimony was

not to be considered as substantive evidence but only to test Ms. Smith’s knowledge of

the defendant’s character.



              The defendant claims that he was denied the right to a fair trial because

the state failed to produce his criminal record prior to trial, as he requested. Rule 16

(a)(1)(B), Tenn. R. Crim. P., requires, in pertinent part, that the state furnish the

defendant a copy of the defendant’s prior criminal record that is within the possession,

custody, or control of the state. The defendant filed a discovery request pursuant to

this rule, and the state responded that it did not have any such information. Obviously,

the state was in possession of the defendant’s record because it used the defendant’s

previous arrests at trial to question Ms. Smith’s opinion. However, we do not believe

that the state’s failure to disclose this information resulted in an unfair trial. The state

did not attempt to introduce this evidence as part of its proof, but only used the

evidence to test the credibility of Ms. Smith’s opinion. Also, the trial court gave the jury



                                              25
a cautionary instruction in this regard. In addition, the defendant’s attorney stated at

the jury-out hearing that he was aware of some of the defendant’s criminal record. The

fact that the defendant’s attorney sought to limit the use of his prior criminal record in a

Motion in Limine filed December 5, 1995, presupposes that he had some indication that

the defendant had a criminal record. Under these circumstances, we conclude that the

defendant was not denied a fair trial.



                                    VI. SENTENCING

              The defendant contends that the trial court erred in sentencing by failing

to apply mitigating factors. Specifically, the defendant argues that the trial court should

have considered in mitigation the fact that he voluntarily released the victim, the fact

that the victim suffered no serious bodily injury, the fact that there was no physical proof

that the offense was aggravated, and the fact that he had no prior felony convictions.

The state argues that the defendant was properly sentenced.



              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

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.”



                                             26
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. 1995).


              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 (Tenn. 1986).



              The presumptive sentence for a Class B felony is the minimum sentence

in the range if there are no enhancement or mitigating factors. T.C.A. § 40-35-210(c).

Procedurally, the trial court is to increase the sentence within the range based upon the

existence of enhancement factors and then reduce the sentence 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.



              Before sentencing, the defendant filed a motion to be sentenced as an

especially mitigated offender. At the sentencing hearing, a presentence report was

admitted into evidence. It reflects that the then twenty-six-year-old defendant dropped


                                             27
out of high school in the ninth grade and had no further vocational or educational

training. The report reflects that the defendant had no history of drug or alcohol abuse,

although he did experiment with marijuana at age fourteen. The report reflects that the

defendant is in fair physical health and excellent mental health. It reflects that the

defendant was convicted of driving with a revoked license in 1991 and in 1989, assault

in 1988, and disturbing the peace and assault in 1987.



              The trial court applied the following enhancement factors, as listed in

T.C.A. § 40-35-114:

              (7) The offense involved a victim and was committed to gratify
              the defendant’s desire for pleasure or excitement;

              (10) The defendant had no hesitation about committing an
              offense when the risk to human life was high; and

              (16) The crime was committed under circumstances under
              which the potential for bodily injury to a victim was great.

The trial court applied in mitigation the fact that the defendant had no prior felony

convictions. T.C.A. § 40-35-113(13).



              First, the defendant contends that the trial court erred by not applying in

mitigation the fact that he voluntarily released the victim. See T.C.A. § 39-13-304(b)(2).

The trial court determined that “if the car hadn’t driven up we would have been trying

something very much more serious here than what we are trying.” We conclude that

the trial court’s decision not to apply voluntary release as a mitigating factor was

justified.



              Next, the defendant argues that the trial court should have considered the

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

trial court stated that “to take a lady out there and rip her clothes off and throw her down

in the mud and then she has to go several miles distance in almost a nude condition to

get some help, it may not be serious bodily injury but it’s certainly injury.” Thus, the


                                             28
record indicates that the trial court did not apply this factor in mitigation because the

victim suffered bodily injury. This is not what the statute requires; the injury must be

serious bodily injury. Nevertheless, we believe that the factor is not applicable because

the defendant’s actions in holding a knife to the victim throughout the ordeal show that

his conduct threatened serious bodily injury, thus precluding the application of

mitigating factor (1).



              The defendant also argues that the trial court should have considered in

mitigation the fact that there was no physical proof that the offense was aggravated.

The defendant does not articulate to which offense he is referring. Also, he does not

explain what he means when he says that there was no physical proof that the offense

was aggravated. Because we cannot discern the defendant’s argument from his

cursory statement, and it is not supported by any authority, as required by T.R.A.P.

27(a)(7), we must conclude that the defendant has not shown that it should result in

mitigation.



              Finally, the defendant argues that the trial court should have considered

the fact that he had no prior felony convictions. See T.C.A. § 40-35-113(13). The

record reveals that the trial court did apply this in mitigation. We conclude that a mid-

range sentence of ten years for each conviction was proper.



              In consideration of the foregoing and the record as a whole, we affirm the

judgments of conviction.



                                                         __________________________
                                                         Joseph M. Tipton, Judge




                                             29
CONCUR:

_________________________
David H. Welles, Judge



_________________________
Joe G. Riley, Judge




                            30
