            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                    AT NASHVILLE                 FILED
                            SEPTEMBER 1996 SESSION
                                                                    May 30, 1997

STATE OF TENNESSEE,                *                         Cecil W. Crowson
                                           C.C.A. # 01C01-9512-CC-00404
                                                            Appellate Court Clerk
       Appellee,                   *       LAWRENCE COUNTY

VS.                                *       Hon. Jim T. Hamilton, Judge

TERRY ALLEN DOMINY,                *       (Spousal Rape-3 Counts)

       Appellant.                  *




                                DISSENTING OPINION

              I fully agree with the majority's conclusion that our court has the

authority to modify the convictions from aggravated rape to spousal rape. Given

that excellent resolution of the primary issue, it is tempting to concur in the

modification of the convictions without contextualized review of other issues. In my

view, however, there were other errors: (1) by allowing into evidence the full

content of the victim's taped statement; and (2) by refusing to admit evidence that

the victim previously had accused her brother of personally committing this same

unusual crime. Because the legitimacy of the charges depends entirely upon the

credibility of the victim, I cannot conclude that the errors had no effect upon the

verdict. See State v. Kendricks, 891 S.W.2d 597, 604 (Tenn. 1994) (where "[t]he

essential issue was credibility," erroneous introduction of evidence was not

harmless); Tenn. R. App. P. 36(b).



              Initially, the defendant had adequate notice that he faced charges for

spousal rape. The indictments charged aggravated rape. In State v. Trusty, 919

S.W.2d 305 (Tenn. 1996), the defendant was indicted for attempted first degree

murder. Id. at 312. Our supreme court held that "[t]his indictment ... could ... form
the basis for a conviction, if the evidence is sufficient for that offense, for any

offenses which are lesser grades or classes of attempted first degree murder ... or

for any lesser included offenses...." Id. Because spousal rape is a lesser grade

offense of aggravated rape, the indictment charging aggravated rape was sufficient

for a conviction of spousal rape.



                  Furthermore, the majority's modification of the convictions has not

precluded the right to a jury trial. Because the defendant was found guilty of

aggravated rape, the jury determined beyond a reasonable doubt that the sexual

penetration was accompanied by "[f]orce or coercion ... and the defendant [was]

armed with a weapon or any article used or fashioned in a manner to lead the victim

reasonably to believe it to be a weapon." Tenn. Code Ann. § 39-13-502(a)(1).

Spousal rape is the "unlawful sexual penetration of one spouse by the other

[and]...[t]he defendant is armed with a weapon or any article used or fashioned in a

manner to lead the victim to reasonably believe it to be a weapon." Tenn. Code

Ann. § 39-13-507(b)(1)(A). The only remaining element of spousal rape is the legal

marriage. Their marriage certificate was evidence at trial. Thus a modification

rather than a retrial would have been warranted, absent other error. See State v.

Thornton, 730 S.W.2d 309 (Tenn. 1987) (reducing first degree murder conviction to

voluntary manslaughter where evidence insufficient for first degree murder but

overwhelmingly established manslaughter).1



                  The defendant also contended that the trial court erred by allowing the

         1
          The majority concludes the jury found the "elements necessary to constitute aggravated rape
by use of a deadly weapon." slip op. at 5. Neither aggravated rape nor spousal rape requires that the
sexual penetration be achieved by use of a deadly weapon. Both offenses only require that the
"defe nda nt is a rm ed w ith a w eap on or any ar ticle u sed or fas hione d in a m ann er to le ad th e victim
reason ably to believe it to b e a wea pon." Te nn. Cod e Ann. § § 39-13 -502(a) (1), 507(b )(1)(A).
"Dea dly we apo n" is s tatuto rily defin ed as a wea pon that is capa ble of caus ing "d eath or se rious bodily
injury." Tenn. Code Ann. § 39-11-106(5)(A),(B). Thus for spousal rape, it is not necessary that the
dog was capable of causing serious bodily injury or death. All that is necessary is that the victim was
threatened by the dog or reasonably believed she was in danger from the dog.

                                                        2
jury to hear an audiotape of the victim's interview with the Department of Human

Services. The majority concludes "the issues regarding the DHS tape are either

meritless or have been waived." slip op. at 9. On August 2, 1994, more than six

months after the last assault and less than a month after the indictment, the victim

gave a statement to DHS. The defendant used portions of the statement to cross-

examine the victim:

             Q: Didn't you have a conversation, with your mother
             being present, and Mr. Workman and Mrs. Mickie Pierce
             of D.H.S., and it was taped with a tape recorder, and they
             tape recorded what you told them?

             A: (No response)

             Q: Do you remember that happening?

             A: No. I don't remember it.

             Q: Now, when you testified about this February incident,
             you said it happened in the living room on the floor, didn't
             you?

             A: Yes.

             Q: And you told Mrs. Pierce and Mr. Workman back in
             August that it happened on the couch. Do you
             remember telling them that?

             A: Yes. With the dog.

             Q: You didn't tell them anything about it happening on
             the floor, or anything happening on the floor, on the third
             event, in this transcript, did you?

             A: No.

             Q: And when you talked to them, back in August, you
             told about how your husband left you for almost an hour--
             45 minutes each time--and left the house. Got in the car
             and left. And you didn't make any attempt to leave at
             that time, did you?

             A: I went out there in the horse field.

                                            ***
             Q: Isn't it true that you told Mickie Pierce, back in
             August, when you talked about your husband, you said,
             "I tried to scare him, you know?"


                                           3
              A: Yes.

              Q: So, how did you try to scare him? By bringing these
              false charges against him?

                                           ***

              Q: How did you try to scare him? You told Mrs. Pierce
              you tried to scare him. What did you do?

              A: He gonna hit me.

              Q: What did you do to try to scare him?

              A: I can't understand.

              Q: Well. You agree you told her that. You told Mrs.
              Pierce that you tried to scare your husband, Terry, Right?

              A: Yeah, I'm scared of Terry. Yes, I am.



              Later in the trial, when the victim was no longer present, the state

called Mickie Pierce, who conducted the interview. Ms. Pierce authenticated the

audio cassette of the interview, which was then played in its entirety. The

transcription is twenty-eight pages of text. The statement includes her detailed

accounting of each of the three assaults; she did not refer to the occurrences as on

the floor. The victim contended that the defendant routinely raped and beat her

and, on less frequent occasions, attempted to starve her. The interview was

conducted at the request of the District Attorney. Many of the questions suggested

an answer supportive of the state's theory.



              The defendant objected to the tape on hearsay grounds and argued

that, at worst, the jury should be limited to the portions referred to on the prior cross-

examination of the victim. A cross-examination may open the door to other parts of

the statement. In State v. Boyd, 797 S.W.2d 589 (Tenn. 1990), our supreme court

cited the following rule:

              The general rule is, subject to certain exceptions, that

                                            4
                 evidence of prior consistent statements may not be used
                 to rehabilitate an impeached witness. ... The State [is]
                 allowed to place in proper context supposedly
                 inconsistent statements brought into evidence by
                 defendant. Where specific questions and answers taken
                 out of context do not convey the true picture of the prior
                 statement alleged to be inconsistent, it is unfair to permit
                 reference to isolated, unexplained responses by the
                 witness and there is no error in allowing the statements
                 to be placed in context.

Id. at 593-94 (emphasis added). Under this rule, the state should be allowed to

"convey the true picture of the prior statement alleged to be inconsistent"; however,

the rule, in my view, does not form a basis for permitting subjects not a part of the

cross-examination. These facts are almost identical to State v. Braggs, 604 S.W.2d

883 (Tenn. Crim. App. 1980). In Braggs, the defendant cross-examined the victim

with a statement she had given the police;2 thereafter, the assistant district attorney

general "offered the entire statement, which when read in its entirety reflect[ed] no

significant inconsistencies ...." Id. at 885. This court found error:



                       Although prior inconsistent statements of a
                 witness may be admissible for impeachment purposes,


        2
          Neither party has contended the statement was admissible as a fresh complaint. It is doubtful
if this complaint was made soon enough after the attack to so qualify. In State v. Kendricks, 891
S.W.2d 597, 604 (Tenn. 1994), our supreme court held that "Tennessee continues to require the
complaint to be timely ... but whether a complaint [is] timely depends upon an assessment of all the
facts and circumstances." The statement does not need to be spontaneous but it does need to be
timely. Id. A statem ent m ade six m onths a fter the attac k is not tim ely. See Johns on v. State , 296
S.W .2d 832 ( Tenn . 1956) (s tatem ent m ade less than one hour afte r incident w as time ly); Carroll v.
State , 370 S.W.2d 523 (Tenn. 1963) (statement made soon after incident was timely) (both cases
cited with approval in Kendricks, 891 S.W .2d at 605.) See also State v. Brown, 871 S.W.2d 492, 494
(Tenn. Crim. App. 1993) (statement made eleven months after the offense was "stale within the
meaning of fresh complaint.") More importantly, the Kendricks rule is that , "[i] f the q ues tionin g is
clearly leading or overly suggestive, ... the resulting statement would not, in all likelihood, be the
victim's product. Rather it would be questioner's product. In such case, the statement should,
obvious ly, be exclud ed." Kendricks, 891 S.W .2d at 605 . Here, the question s were c learly sugge stive.
For example, the following exchange occurred:

                 Q:   He tied your arms up.
                 A:   Uh-huh.
                 Q:   He tied your ankles.
                 A:   Yeah.
                 Q:   He pushed you on the floor.
                 A:   Yeah.
                 Q:   And he brought the dog in?

In my view , the statem ent wou ld not qua lify as a fresh com plaint.

                                                      5
              the general rule, subject to certain exceptions, is that
              evidence of prior consistent statements may not be used
              to rehabilitate the impeached witness.
Id.



              In my view, the state should have been allowed to place the alleged

inconsistencies into context; however, the remaining portions of the statement

should have been excluded as hearsay. "If extrinsic evidence of a prior inconsistent

statement is used, the trial court has the discretion to screen it and excise irrelevant

or otherwise inadmissible portions. This will prevent the jury from being exposed to

inadmissible proof." Neil P. Cohen, Tennessee Law of Evidence, § 613.4 (3d Ed.

1995). The trial court should have redacted significant portions of the tape; it was

error not to do so.



              Next, the defendant argues that he should have been allowed to cross-

examine the victim about a prior claim that her brothers raped her by use of a dog.

The majority has reasoned that the defendant has not established a prior pattern of

conduct and that a "prior nonconsensual act" is not evidence of consent in this case.




              The dispute was whether the rapes ever took place. While

acknowledging that the dog was involved in their sexual activities, the defendant

claimed the victim was a willing participant. The defendant claimed this particular

activity had occurred twice, the last time being four months before the victim claimed

the first assault occurred. The state's case depended upon the credibility of the

victim. Outside of the presence of the jury, the victim testified that when she was

thirteen, one of her brothers forced her to have intercourse with a dog. She also

claimed that her brothers had raped her and that she had become pregnant. Her

brothers denied the accusations. Apparently, the matters were not prosecuted. The

                                           6
trial court refused to allow the defendant to cross-examine the victim about these

prior allegations. The defendant contended that if the victim had made false

allegations in the past against her brothers, those facts would be relevant in this

trial.



              In State v. Reid, 882 S.W.2d 423, 427 (Tenn. Crim. App. 1994), this

court ruled that "it was error for the trial court to prohibit the defendant from cross-

examining the [female] victim" about criminal charges against her son; the victim

had offered to drop the charges against the defendant in exchange for dismissal of

the charges against her son. These facts were adjudged to have possibly motivated

the victim to testify falsely against the defendant. In Reid, the only question was

whether the victim or the defendant had testified truthfully about the events. This

court ruled that because the impeachment of the victim would be so significant to

the issue of guilt that the trial court, when it excluded the evidence, "went beyond

reasonable limits given the importance of the victim as a witness." Id. at 430.



              The policy behind the rape shield statute is to protect victims of rape

from "unnecessary, degrading, and embarrassing invasion of sexual privacy." Tenn.

R. Evid. 412 Advisory Commission Comment [1991]. That legislation must be

considered as a part of my separate analysis. The rationale for the statute does

recognize that there are exceptional circumstances when "the accused can only

have a fair trial if permitted to introduce evidence of the alleged victim's sexual

history." Id. This policy follows that expressed in Olden v. Kentucky, 488 U.S. 227

(1988). In Olden, the defendant wanted to cross-examine the victim about her

relationship with a man. The defendant contended that there was a motive for the

victim to lie in order to protect her present relationship. The trial court denied the

cross-examination and the appellate court affirmed stating that "the petitioner's right


                                            7
to effective cross-examination was outweighed by the danger that revealing [the

victim's] inter-racial relationship would prejudice the jury against her." Id. at 232.

The Supreme Court reversed stating that "[t]he Kentucky Court of Appeals failed to

accord proper weight to petitioner's Sixth Amendment right 'to be confronted with the

witnesses against him.'" Id. at 231.



              In my view, whether or not the victim had been raped before would

have no probative value for the jury in this case; however, the fact that the victim

may have made false accusations in the prior instance goes to the core of her

credibility. There is a likelihood that the defense should have been allowed to cross-

examine the victim about her past allegations. Yet the trial court did not allow the

defense to offer proof outside the jury's presence for the appellate record. This

court has held in the past that trial courts do not have to allow such an offer of proof

where there is no basis to believe that the evidence is relevant. Alley v. State, 882

S.W.2d 810, 816 (Tenn. Crim. App. 1994). If, however, the court cannot

conclusively determine that the evidence is irrelevant, "it is error to exclude any

reasonable offer which demonstrates the ... general import of the excluded

evidence." Id. Because of the possible merit to the claim, I believe the trial court

here should have allowed an offer of proof. In my opinion, the failure to allow that

was error.



              In my opinion, the cumulative effect of the evidentiary errors would

ordinarily warrant a new trial.

                                           __________________________________
                                           Gary R. Wade, Judge




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