         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                               Assigned on Briefs May 14, 2003

                STATE OF TENNESSEE v. JOHNNY D. ROBERTS

                     Appeal from the Criminal Court for Davidson County
                        No. 2001-C-1812    Cheryl Blackburn, Judge



                      No. M2002-02996-CCA-R3-CD - Filed July 30, 2003


The defendant, Johnny D. Roberts, was convicted by a Davidson County Criminal Court jury of
aggravated rape and aggravated sexual battery. The trial court merged the defendant’s convictions
into one conviction for aggravated rape and sentenced him as a Range I, violent offender to twenty-
five years in the Department of Correction. The defendant appeals, claiming that (1) the evidence
is insufficient to support his convictions, (2) the trial court erroneously admitted into evidence a tape
recording and transcript of the victim’s 9-1-1 telephone call to the police, (3) the trial court erred by
failing to declare a mistrial after the prosecutor commented on the defendant’s failure to testify, and
(4) the trial court erred by refusing to apply a mitigating factor in sentencing him. We affirm the
judgment of conviction.

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

JOSEPH M. TIPTON, J., delivered the opinion of the court, in which DAVID H. WELLES and ALAN E.
GLENN, JJ., joined.

Ross E. Alderman, District Public Defender; Jeffrey A. DeVasher, Assistant Public Defender (on
appeal); and Laura Dykes, Deputy Public Defender (at trial), for the appellant, Johnny D. Roberts.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General;
Victor S. Johnson, III, District Attorney General; and Bret Thomas Gunn, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                              OPINION

         This case relates to the defendant’s attacking the victim in the early morning hours of July
28, 2001. The victim testified that she bought a condominium on July 25 and was moving boxes into
it on the night of July 27. She said she arrived at the condo about 10:00 p.m. and started to leave
about 1:00 a.m. on July 28. She said she went from her condo into the adjoining garage where her
car was parked and began to raise the garage door manually. She said that when the bottom of the
garage door was about eye level, she saw the defendant, whom she did not know, standing outside.
She said the defendant raised the door the rest of the way. She said that she asked if she could help
him but that he told her to shut up. She said that she told him to leave but that he entered the garage.
She said he came toward her, pulled down her shorts, and inserted what felt like his fingers into her
vagina. She said that as she tried to get away, they fell to the floor with the defendant on top of her.
She said that she screamed at him to leave but that he kept telling her to shut up. She said she bit
his cheek and ear, scratched him, and kicked him in the chest. She said the defendant bled on her
clothes and on the garage floor. She said he then got up and ran away.

         The victim testified that she took the defendant’s hat and necklace, which he had left behind,
and locked them inside her condo to prevent him from getting them back. She said that she drove
to a Walgreen’s in order to telephone the police because she did not have a telephone in her condo.
She said that Walgreen’s was only about one-half mile away and that she called the police within
five minutes of the attack. She waited at Walgreen’s for the police, and officers arrived a few
minutes later. The victim returned to her condo with the police officers, and the officers collected
her clothes and took photographs of her, her clothes, and the area. She gave a statement to a
detective in the Sex Abuse Unit and had burn marks from the concrete on her elbows and ankles,
scratches on her back, a busted lip, and other bruises. She said she was beaten up and felt as if
something had been put into her vagina. She said she did not go to the hospital for a medical exam
at that time because her attacker only used his hand and there was no semen to obtain. She said that
on July 31, she identified the defendant as her attacker from a photograph array. A few days later,
she went to Dr. Barbara Kent, her personal physician. She said she told Dr. Kent that she was
worried about contracting an infection or a disease from her attacker and that she had experienced
vaginal irritation and discharge since the attack. On cross-examination, the victim testified that the
defendant was not wearing a disguise and did not try to cover his face. She acknowledged that he
was not wearing gloves and did not have a weapon. She also said he did not hit, kick, or choke her
during the attack. She acknowledged that in an earlier statement, she had said the defendant pulled
her shorts down and penetrated her vagina after they had fallen onto the garage floor.

         Officer Michael Gooch of the Nashville Metropolitan Police Department (Metro Police)
testified that he responded to a report of a woman screaming on the morning of July 28, 2001. He
and another officer went to Walgreen’s and saw the victim, who was upset and had been crying. He
went to the victim’s condominium, secured the crime scene, and requested a K-9 unit, which started
searching the area for the attacker. He said a detective from the Sex Abuse Unit arrived and
questioned the victim. Officer Gooch wrote the incident report in this case. On cross-examination,
he said that according to his report, officers that arrived after him were dispatched to the Walgreen’s
to investigate an attempted rape.

        Detective Marsha Brown of the Metro Police testified that in July 2001, she worked in the
Sex Abuse Unit. She said that she took the victim’s statement and told the victim about possible
medical treatment for her injuries but that the victim declined to go to the hospital. She sent blood
collected at the scene, the victim’s clothing and fingernail scrapings, and a sample of the defendant’s
blood to the Tennessee Bureau of Investigation Crime Laboratory. On cross-examination, she said



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that it was important to perform a medical exam as soon as possible after an attack and that she
explained the importance of an exam to the victim.

       Metro Police Officer George Bouton of the Identification Division testified that he took
photographs and collected fingerprints and a blood sample from the driveway. On cross-
examination, he testified that he did not find any blood in the garage and that he listed the crime as
an attempted rape based on the information he had, although he did not speak with the victim.

        Dr. Barbara Kent testified that she is a licensed physician in Tennessee and that the victim
is her patient. The victim came to her office on August 2, 2001, complaining of vaginal discharge
and possible exposure to disease during an attack that had happened a few days earlier. She
examined the victim and found nothing unusual, except the victim’s complaint of discharge. She
said that the insertion of a finger could have caused the discharge but there was no reason to treat
it. On cross-examination, she testified that she was not able to determine if the victim’s discharge
was more or less than normal but that a pap smear did show vaginal irritation.

        Detective Tom Jones testified that he saw the defendant after the defendant was arrested.
He said the defendant had scratches on his face and elbow and a cut on his right ear.

        Constance Howard, an expert in serology and DNA analysis, testified that the blood on the
victim’s clothing matched the defendant’s DNA profile. She said the statistical probability of an
unrelated, Caucasian individual having the same profile was 1 in 4.8 quadrillion. She was not able
to determine anything from the blood collected in the driveway or from the victim’s fingernail
scrapings. Based upon the evidence, the jury convicted the defendant of aggravated rape and
aggravated sexual battery.

                            I. SUFFICIENCY OF THE EVIDENCE

        The defendant contends that the evidence is insufficient to support his convictions. He
argues that the state failed to prove the element of sexual penetration required for aggravated rape
and the element of sexual contact required for aggravated sexual battery. The state contends that the
evidence is sufficient. We agree with the state.

        Our standard of review when the defendant questions the sufficiency of the evidence 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). 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). Questions about
witness credibility were resolved by the jury. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).




                                                 -3-
        In order to prove the essential elements of aggravated rape as alleged in the indictment, the
state had to prove beyond a reasonable doubt that the defendant unlawfully sexually penetrated the
victim and caused bodily injury. See Tenn. Code Ann. § 39-13-502(a)(2). “Sexual penetration” is
defined as an “intrusion, however slight, of any part of a person’s body . . . into the genital or anal
openings of the victim’s, the defendant’s, or any other person’s body.” Tenn. Code Ann. § 39-13-
501(7). “Bodily injury” is defined as “a cut, abrasion, bruise, burn or disfigurement; physical pain
or temporary illness or impairment of the function of a bodily member, organ, or mental faculty.”
Tenn. Code Ann. § 39-11-106(a)(2).

        To establish the offense of aggravated sexual battery as charged in the indictment, the state
had to prove that “there was unlawful sexual contact with a victim by the defendant” and that “the
defendant caused bodily injury to the victim.” Tenn. Code Ann. § 39-13-504(a)(2). “Sexual
contact” includes the “intentional touching of the victim’s, the defendant’s, or any other person’s
intimate parts, or the intentional touching of the clothing covering the immediate area of the victim’s,
the defendant’s, or any other person’s intimate parts, if that intentional touching can be reasonably
construed as being for the purpose of sexual arousal or gratification.” Tenn. Code Ann. § 39-13-
501(6). “‘Intimate parts’ includes the primary genital area, groin, inner thigh, buttock or breast of
a human being.” Tenn. Code Ann. § 39-13-501(2).

         Viewed in the light most favorable to the state, the evidence shows that the defendant is
guilty of aggravated rape and aggravated sexual battery. The victim’s uncontroverted testimony is
that the defendant entered her garage against her will and penetrated her vagina with his fingers. The
victim also testified that she suffered various injuries during the crimes in question such as burn
marks, scratches, and a busted lip. She said that she fought the defendant and that he bled on her
clothes. Officer Bouton testified that he saw the victim’s injuries and photographed them.
Additionally, Constance Howard, an expert in serology and DNA analysis, testified that the blood
on the victim’s clothing matched the defendant’s DNA profile and that the probability of someone
else having the same profile was extremely remote. Dr. Barbara Kent testified that the victim came
to her a few days after the attack and complained of vaginal discharge subsequent to the attack. Dr.
Kent also said that the insertion of fingers could have caused the discharge. Detective Tom Jones
testified that the defendant had injuries to his face, elbow, and ear. These injuries are consistent with
the victim’s testimony that she bit the defendant on his cheek and ear.

         In challenging the sufficiency of the evidence for the aggravated rape conviction, the
defendant points to inconsistencies between the victim’s testimony and her statement to the police.
The victim’s testimony at trial was that the defendant penetrated her vagina before they fell to the
floor, while her statement to the police was that penetration occurred after they had fallen to the
floor. The defendant claims that the victim altered her trial testimony because it was nearly
impossible for penetration to occur while they struggled on the floor. On cross-examination, the
victim testified that her police statement on the morning of the attack was slightly incorrect because
of her troubled state of mind when she wrote it. We note that the jury heard this testimony and knew
the discrepancies between the victim’s statement and her testimony at trial, yet determined that the



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defendant was guilty. The weight and value to be given to the evidence are resolved by the trier of
fact, not this court. State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987).

         Regarding the defendant’s aggravated sexual battery conviction, he contends that the state
did not prove the element of sexual contact. Specifically, he claims that the evidence does not show
that the contact was for the purpose of sexual arousal or gratification because the defendant made
no sexual remarks to the victim and because “[there] is no evidence that the defendant fondled,
massaged, rubbed, or otherwise manipulated his hands in a sexual manner when he allegedly touched
the victim.” However, the fact that the defendant struggled with the victim, pulled down her shorts,
and inserted his fingers into her vagina belies the defendant’s claim. The evidence was sufficient
for the jury to find beyond a reasonable doubt that the defendant inserted his fingers into the victim
for the purpose of sexual arousal or gratification.

                           II. ADMISSIBILITY OF THE 9-1-1 TAPE

       The defendant contends that the trial court erred in admitting into evidence a tape recording
and transcript of the victim’s telephone call to the police. The state contends that the trial court
properly admitted the evidence. We agree with the state.

        At trial, the prosecutor sought to introduce into evidence a tape recording of the victim’s 9-1-
1 call in which the victim told the police that a man had just attacked and “fingered” her. The
prosecutor argued that the tape was an excited utterance and, therefore, admissible as an exception
to the hearsay rule. The defendant objected, contending that the tape was being offered to
corroborate the victim’s testimony, which had not been attacked; that the prosecutor did not lay the
proper foundation; and that the excited utterance exception to the hearsay rule did not apply. The
trial court allowed the prosecutor to recall the victim in order to lay the proper foundation for the
introduction of the tape and then admitted the tape and its written transcript into evidence.

        Three requirements must be met for a hearsay statement to be admissible as an excited
utterance: (1) there must be a startling event or condition; (2) the statement must relate to the
startling event or condition; and (3) the statement must be made while the declarant is under the
stress or excitement from the event or condition. Tenn. R. Evid. 803(2); State v. Gordon, 952
S.W.2d 817, 820 (Tenn. 1997). The “ultimate test” for determining the admissibility of an excited
utterance is “spontaneity and logical relation to the main event and where an act or declaration
springs out of the transaction while the parties are still laboring under the excitement and strain of
the circumstances and at a time so near it as to preclude the idea of deliberation and fabrication.”
State v. Smith, 857 S.W.2d 1, 9 (Tenn. 1993). Other relevant considerations include: (1) the time
interval between the startling event and the statement; (2) the nature and seriousness of the condition;
(3) the appearance, behavior, outlook, and the circumstances of the declarant, including
characteristics such as age, physical condition, and mental condition; and (4) the contents of the
statement, which may indicate the presence or absence of stress. Gordon, 952 S.W.2d at 820. The
rationale behind the excited utterance exception is that the hearsay statement is reliable because it
is made when time for reflection and possible fabrication are lacking and memory of the event is still


                                                  -5-
fresh in the declarant’s mind. Id. at 819-20 (citing Neil P. Cohen et al., Tennessee Law of Evidence,
§803(2).1, at 532 (3d ed. 1995)).

         The defendant does not contest the first two requirements, but does contend that the victim
was no longer under stress or excitement when making the statement. In support of his argument,
the defendant points to the fact that after the crimes in question, the victim unlocked her door, placed
the defendant’s hat and necklace inside her condo, locked the door again, and drove to a Walgreen’s
to call the police. However, the victim testified that she telephoned the police within five minutes
of being attacked. Moreover, we have listened to the 9-1-1 tape and, although the victim sounded
calm at first, she began crying during the call. We note that the fact that a measure of calm returns
to the declarant does not prevent the application of Tenn. R. Evid. 803(2). See, e.g., State v. Smith,
868 S.W.2d 561, 574 (Tenn. 1993). We conclude that it was reasonable for the trial court to hold
that the victim was operating under stress or excitement at the time of the 9-1-1 call and that the trial
court properly admitted the tape and transcript into evidence.

                                   III. CLOSING ARGUMENT

        The defendant contends that the prosecutor improperly commented on the defendant’s
decision not to testify and that the trial court should have sua sponte granted a mistrial. The state
contends that because the defendant did not request a mistrial, the issue is waived and that, in any
event, the trial court’s curative instruction was sufficient to safeguard the defendant from the
comment’s prejudicial effect, if any. We agree with the state.

        In his closing argument, the prosecutor stated, “Now, let’s talk about what [the victim] did
say, because she’s the only one that gave a version of what happened. She’s the person who told you
what happened.” The defendant objected, arguing that the prosecutor had commented on the
defendant’s right not to testify, and the trial court responded with the following curative instruction:

                All right. Ladies and gentlemen, you are to disregard the last remarks
                of counsel. Again, counsel’s statements are not evidence and are
                intended just to assist you. The defendant is not required to testify
                and you can make no inference from that fact.

        Under the Fifth Amendment, argument regarding the defendant’s failure to testify is
improper. Griffin v. California, 380 U.S. 609, 615, 85 S. Ct. 1229, 1233 (1965). However,
prosecutorial misconduct does not constitute reversible error unless the outcome was affected to the
defendant’s prejudice. State v. Bane, 57 S.W.3d 411, 425 (Tenn. 2001). In Judge v. State, 539
S.W.2d 340, 344 (Tenn. Crim. App. 1976), this court set out the following considerations for
determining whether the state’s conduct or argument could have prejudiced the defendant and
affected the verdict:

                1. The conduct complained of viewed in context and in light of the
                facts and circumstances of the case.


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                2. The curative measures undertaken by the court and the prosecution.

                3. The intent of the prosecutor in making the improper statement.

                4. The cumulative effect of the improper conduct and any other errors
                in the record.

                5. The relative strength or weakness of the case.

See also State v. Buck, 670 S.W.2d 600, 609 (Tenn. 1984) (approving these factors in determining
if the misconduct resulted in reversible error).

        Although we acknowledge the reasonableness of the inference that the defendant draws from
the prosecutor’s comment, we hesitate to say that the prosecutor intended that inference. In any
event, the trial court’s curative instruction was sufficient to correct any possible prejudice that
resulted from the statement. The jury’s compliance with the instruction by the trial court is
presumed. State v. Vanzant, 659 S.W.2d 816 (Tenn. Crim. App. 1983); Frazier v. State, 566 S.W.2d
545 (Tenn. Crim. App. 1977). We conclude that the comment did not affect the verdict and does not
require reversal.

       The defendant also claims that the prosecutor’s statement shifted the burden of proof to the
defense. We disagree. During its instruction to the jury, the trial court stated that the “state has the
burden of proving the guilt of the defendant beyond a reasonable doubt, and this burden never shifts
but remains on the state throughout the trial of the case.” In light of this instruction, the prosecutor’s
comment did not shift the burden of proof in this case. The defendant is not entitled to relief.

                                         IV. SENTENCING

        Finally, the defendant contends that his twenty-five-year sentence is excessive because the
trial court failed to consider an applicable mitigating factor regarding his conduct not causing or
threatening serious bodily injury. The state claims that the trial court properly sentenced the
defendant. We conclude that the defendant’s twenty-five-year sentence is proper.

        Appellate review of sentencing is de novo on the record with a presumption that the trial
court’s determinations are correct. Tenn. Code Ann. §§ 40-35-401(d) and -402(d). As the
Sentencing Commission Comments to these sections note, the burden is now on the appealing party
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).




                                                   -7-
        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 mitigation and enhancement
                factors have been evaluated and balanced in determining the sentence.

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. Tenn. Code Ann. §§ 40-35-102,
-103, -210; see Ashby, 823 S.W.2d at 168; State v. Moss, 727 S.W.2d 229 (Tenn. 1986).

        The sentence to be imposed by the trial court for a Class A felony is presumptively the
midpoint in the range when there are no enhancement or mitigating factors present. Tenn. Code
Ann. § 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. Tenn. Code Ann. § 40-35-210(d), (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. Tenn. Code Ann.
§ 40-35-210, Sentencing Commission Comments; Moss, 727 S.W.2d at 237; see Ashby, 823 S.W.2d
at 169.

        No witnesses testified at the sentencing hearing, but a presentence report was admitted into
evidence. According to the report, the defendant has prior convictions for attempted rape, indecent
exposure, assault, burglary, and many other offenses. The report reflects that the defendant
committed some of these offenses while he was on probation and that his probation has been revoked
three times. The trial court found enhancement factor (1), that the defendant has a previous history
of criminal convictions or criminal behavior in addition to those necessary to establish the
appropriate range, and factor (8), that the defendant has a previous history of unwillingness to
comply with the conditions of a sentence involving release in the community, applied to his




                                                  -8-
sentence. See Tenn. Code Ann. § 40-35-114(1), (8) (Supp. 2001) (amended 2002).1 The trial court
stated that factor (1) was entitled to great weight.

        The defendant argued that the trial court should apply mitigating factor (1), that his conduct
neither caused nor threatened serious bodily injury. See Tenn. Code Ann. § 40-35-113(1). The trial
court determined that although the defendant did not cause serious bodily injury, the threat of serious
bodily injury existed because the victim had resisted the attack. Thus, the trial court held that no
mitigating factors applied and sentenced the defendant to twenty-five years, the maximum
punishment in the range.

       On appeal, the defendant does not challenge the applicability of the enhancement factors but
claims that mitigating factor (1) applies to his sentence. We disagree. Tenn. Code Ann. § 39-11-
106(34) states that serious bodily injury involves

                 (A) A substantial risk of death;
                 (B) Protracted unconsciousness;
                 (C) Extreme physical pain;
                 (D) Protracted or obvious disfigurement; or
                 (E) Protracted loss or substantial impairment of a function of a bodily
                 member, organ or mental faculty.

Psychological problems can constitute serious bodily injury. State v. Smith, 910 S.W.2d 457, 461
(Tenn. Crim. App. 1995).

        The defendant notes that the victim’s injuries were not serious and that the record does not
indicate that he, by words or actions, ever threatened serious bodily injury. However, the defendant
penetrated the victim by use of force and physical violence. The victim’s resistance could have
resulted in more serious injuries, but the defendant bears the brunt of the threat of such injuries by
his use of violence. We acknowledge that the defendant ended the attack, but we do not believe that
the evidence preponderates against the trial court’s findings regarding this factor. In any event, we
believe the presence of the two enhancement factors and the significant weight they deserve justify
the imposition of the twenty-five-year sentence.

         Based on the foregoing and the record as a whole, we affirm the judgment of conviction.



                                                              ___________________________________
                                                              JOSEPH M. TIPTON, JUDGE

         1
            The legislature’s 2002 am endment to Tenn. Code Ann. §40-35-114 added as the new enhancement factor (1)
that the “offense was an act of terrorism” b ut changed the existing enhan cement facto rs only in inc reasing their
designating number by one. Thus, former enhancement factor (1) is now enhancement factor (2) and factor (8) is now
factor (9).

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