             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT JACKSON

                           SEPTEMBER 1997 SESSION
                                                        FILED
                                                         January 15, 1998

STATE OF TENNESSEE,                )                    Cecil Crowson, Jr.
                                   )                    Appellate C ourt Clerk
                    APPELLEE,      )
                                   )          No. 02-C-01-9612-CR-00447
                                   )
                                   )          Shelby County
v.                                 )
                                   )          W. Fred Axley, Judge
                                   )
                                   )          (Rape)
COLLIER V. HARRIS,                 )
                                   )
                   APPELLANT.      )



FOR THE APPELLANT:                      FOR THE APPELLEE:

W. Mark Ward                            John Knox Walkup
Assistant Public Defender               Attorney General & Reporter
201 Poplar Avenue, Suite 2-01           500 Charlotte Avenue
Memphis, TN 38103                       Nashville, TN 37243-0497
(Appeal Only)
                                        Kenneth W. Rucker
Ronald S. Johnson                       Assistant Attorney General
Assistant Public Defender               450 James Robertson Parkway
201 Poplar Avenue, Suite 2-01           Nashville, TN 37243-0493
Memphis, TN 38103
(Trial Only)                            William L. Gibbons
                                        District Attorney General
OF COUNSEL:                             201 Poplar Avenue, Suite 3-01
                                        Memphis, TN 38103
A C Wharton, Jr.
Chief Public Defender                   Edgar A. Peterson, IV
201 Poplar Avenue, Suite 2-01           Assistant District Attorney General
Memphis, TN 38103                       201 Poplar Avenue, Suite 3-01
                                        Memphis, TN 38103




OPINION FILED:______________________________


CONVICTION AFFIRMED; REMANDED FOR A NEW SENTENCING HEARING


Joe B. Jones, Presiding Judge
                                   OPINION

       The appellant, Collier V. Harris (defendant), was convicted of rape, a Class B felony,

by a jury of his peers. The trial court, finding the defendant to be a multiple offender,

imposed a Range II sentence consisting of confinement for twenty (20) years in the

Department of Correction. This sentence is to be served consecutively to a sentence for

felony murder in an unrelated case. The defendant presents four issues for review. He

contends the trial court committed error of prejudicial dimensions by (a) ruling the state

could impeach the defendant with a prior conviction for first degree murder; (b) allowing the

state to introduce the testimony of two other women who were also raped by the

defendant; (c) instructing the jury it could consider the two rapes to show intent, motive,

guilt, and knowledge; and (d) finding him to be a multiple offender and imposing a Range

II sentence. After a thorough review of the record, the briefs submitted by the parties, and

the law governing the issues presented for review, it is the opinion of this court that the

defendant’s conviction for rape should be affirmed. However, this cause is remanded to

the trial court for a new sentencing hearing for the reasons set forth in this opinion.

       The defendant does not challenge the sufficiency of the evidence. However, a

recitation of the salient facts is necessary for an understanding of the issues presented for

review.

       The victim, Angela Phillips, lived in a subdivision near the intersection of Navy Road

and Bethel Road in Millington, Tennessee. During the early morning hours of October 11,

1993, the victim walked to a nearby service station to purchase a bag of potato chips. The

defendant, whom she had observed driving through her neighborhood on prior occasions,

offered her a ride from the service station to her home. She did not know the defendant.

While she only lived a short distance from the station, she accepted the defendant’s

invitation because it was raining and cold.

       The defendant drove his vehicle away from the victim’s residence. He subsequently

drove his vehicle to Center College Road, drove into a field, and parked behind a grove of

trees. He exited the vehicle, walked to the passenger side of the vehicle, and pulled the

victim from the vehicle. He then placed his arm around her neck and began squeezing.


                                              2
The victim became dizzy and began losing her breath. The defendant told the victim to pull

her pants down. He then forced her to bend over in front of him. He told the victim, “I’m

going to teach you bitches something.” The defendant then vaginally penetrated the victim

with his reproductive organ from behind her as he held her neck.

      Subsequently, the victim was taken by law enforcement authorities to the Memphis

Sexual Assault Resource Center. A nurse took samples of the fluids from the genital area

of the victim’s body. Later, blood and hair samples were taken from the defendant. All of

the samples were submitted by the authorities for DNA testing. The samples taken from

the victim revealed the presence of sperm. The DNA profile of the sperm found in the

victim was consistent with the DNA profile of the defendant. The DNA expert testified the

profile for the sperm found in the victim occurs with a frequency of approximately one in

467 million Caucasians and one in 50 million African-Americans. The defendant is an

African-American.

       The victim identified the defendant as the person who had raped her. The state

presented two other women who testified the defendant raped them. One was raped on

November 21, 1993, and the other was raped in June of 1991.

       The defendant did not testify in support of his defense. Nor did he present any other

witnesses.

                                             I.



       The State of Tennessee gave the defendant notice it would use his prior convictions

to impeach him if he opted to testify during the trial. See Tenn. R. Evid. 609(a)(3). The

notice alleged the following convictions would be used to impeach the defendant: assault,

unlawful possession of a controlled substance, possession of a weapon, and murder in the

perpetration of a theft. When the state rested its case-in-chief, the trial court conducted

what is commonly referred to as a “Morgan hearing.”

       The assistant district attorney general candidly admitted the three misdemeanor

convictions could not be used to impeach the defendant. However, he argued the felony

murder conviction could be used to impeach the defendant if he testified during the trial.

The defendant objected to the use of this felony conviction to impeach him. He argued



                                             3
rape and murder in the perpetration of a felony were both crimes of violence; and the

probative value of this conviction for impeachment purposes was far outweighed by its

prejudicial effect. The trial court, stating the underlying crime was theft, ruled the state

could use the conviction to impeach the defendant.

       In this court, the defendant contends “the trial judge erred in that the probative value

of the first degree murder conviction on the issue of Appellant’s credibility did not outweigh

the unfair prejudicial effect that allowance of the impeachment would have had on the

substantive issues of identity and consent.” He argues a conviction for first degree murder

has “little probative value” and “little or no bearing on credibility” because the mens rea

requirement for this offense is “recklessness.” The state contends the trial court properly

ruled that the first degree murder conviction could be used to impeach the defendant if he

opted to testify during the trial.



                                               A.



       The State of Tennessee must establish certain prerequisites before it may use a

prior conviction to impeach an accused in a criminal prosecution. In State v. Farmer, 841

S.W.2d 837 (Tenn. Crim. App.), per. app. denied (Tenn. 1992), this court said:


               The State may use a prior adult conviction to impeach the
               testimony of an accused in a criminal prosecution if: (a) the
               conviction was for a crime that is punishable by death or
               imprisonment in excess of one (1) year or a misdemeanor
               involving dishonesty or false statement, Tenn. R. Evid.
               609(a)(2), (b) less than ten (10) years has elapsed between
               the date the accused was released from confinement and the
               commencement of the prosecution, Tenn. R. Evid. 609(b), (c)
               the State gives reasonable written notice of the particular
               conviction or convictions it intends to use to impeach the
               accused prior to trial, Tenn. R. Evid. 609(a)(3), and (d) the trial
               court finds that the probative value of the felony or
               misdemeanor on the issue of credibility outweighs its unfair
               prejudicial effect on the substantive issues. Tenn. R. Evid.
               609(a)(3).


841 S.W.2d at 839.

       In this case, the parties agree the first three prerequisites set forth in Farmer, i.e.,

requirements (a) through (c), have been satisfied. Thus, this court must determine whether



                                               4
the trial court reasonably concluded that the probative value of the prior felony murder

conviction on the question of the defendant’s credibility outweighed its prejudicial effect

upon the substantive issues presented by the evidence: the identity of the defendant as

the person who raped the victim and the consent of the victim to the sexual penetration.



                                              B.



       It is a well-established rule of law that the question of whether a prior conviction can

be used to impeach the accused addresses itself to the sound discretion of the trial court.

State v. Sheffield, 676 S.W.2d 542, 548-49 (Tenn. 1984); State v. Roberts, 943 S.W.2d

403, 408 (Tenn. Crim. App.), per. app. denied (Tenn. 1996);           State v. Wiggins, 729

S.W.2d 291, 295 (Tenn. Crim. App.), per. app. denied (Tenn. 1987). An appellate court

will not interfere with the exercise of this discretion absent clear abuse appearing on the

face of the record. See State v. Van Tran, 864 S.W.2d 465, 477 (Tenn.1993), cert. denied,

511 U.S. 1046, 114 S.Ct. 1577, 128 L.Ed.2d 220 (1994); State v. Harris, 839 S.W.2d 54,

73 (Tenn. 1992), cert. denied, 507 U.S. 954, 113 S.Ct. 1368, 122 L.Ed.2d 746 (1993);

State v. Baker, 751 S.W.2d 154, 163 (Tenn. Crim. App.), per. app. denied (Tenn. 1987).

       Appellate review of this issue is limited to a determination of whether the trial court

abused its discretion by permitting the use of the felony murder conviction to impeach the

defendant. Roberts, 943 S.W.2d at 408. This court is not permitted to re-weigh or

reevaluate the probative value versus the prejudicial effect of the prior conviction on the

substantive issues which must be resolved by the trier of fact. Id.



                                              C.



       The Tennessee Rules of Evidence recognize two classes of prior convictions to

impeach an accused if the prior convictions meet the criteria set forth in Rule 609. The

first class of prior convictions encompasses felony offenses which are punishable by death

or imprisonment in excess of one (1) year. Tenn. R. Evid. 609(a)(2). The second class of

prior convictions includes misdemeanor offenses involving dishonesty or false statement.



                                              5
Id. See Farmer, 841 S.W.2d at 839. There is no requirement that a felony conviction

involve dishonesty or false statement before the conviction may be used to impeach the

accused. State v. Tune, 872 S.W.2d 922, 927 (Tenn. Crim. App.), per. app. denied (Tenn.

1993). In Tune this court said “a crime committed by the accused which is punishable by

death or imprisonment in excess of one year may be admissible in order to attack his

credibility, regardless of whether the crime involved dishonesty or false statements. . . .”

However, both classifications of prior convictions are subject to the probative value versus

prejudicial effect requirement of Rule 609. State v. Jerry Lee Finch, Lauderdale County

No. 02-C-01-9309-CC-00224, 1995 WL 334350 (Tenn. Crim. App., Jackson, June 7,

1995), per. app. denied (Tenn. November 5, 1995).

       The appellate courts have upheld the use of crimes involving violence to impeach

an accused when the prerequisites contained in Rule 609 have been met. In Sheffield, the

supreme court upheld the use of a voluntary manslaughter conviction to impeach the

accused in a capital first degree murder prosecution. 676 S.W.2d at 549-50. In State v.

Ratliff, 673 S.W.2d 884, 885 (Tenn. Crim. App.), per. app. denied (Tenn. 1984), this court

ruled a prior conviction for assault with intent to commit second degree murder could be

used to impeach the accused in a prosecution for concealing stolen property. In State v.

Ronnie Dunn, Washington County No. 03-C-01-9102-CR-00042, 1992 WL 167349 (Tenn.

Crim. App., Knoxville, July 21, 1992), rev’d and modified, Washington County No. 03-S-01-

9211-CR-00104, 1993 WL 339919 (Tenn. Sept. 7, 1993) (modifying the conviction to

second degree murder), this court held the use of a prior first degree murder conviction to

impeach the accused was permissible in a prosecution for felony murder. In State v. Burl

Lakins, Claiborne County No. 32, 1991 WL 84947 (Tenn. Crim. App., Knoxville, May 24,

1991), this court held a prior conviction for second degree murder could be used to

impeach the accused in a prosecution for aggravated assault.

       This court has also upheld the use of crimes involving violence to impeach an

accused charged with a sex-related offense when the prerequisites contained in Rule 609

have been met.       In Wiggins, this court held that prior convictions for voluntary

manslaughter and possession of a controlled substance for resale could be used to

impeach the accused in a prosecution for aggravated rape and aggravated kidnaping. 729



                                             6
S.W.2d at 294. State v. Blanton, 926 S.W.2d 953, 959-60 (Tenn. Crim. App.), per. app.

denied (Tenn. 1996), this court ruled a prior conviction for second degree murder could be

used to impeach Blanton in a prosecution for aggravated sexual battery if he opted to

testify in support of his defense. In State v. Daniel Strong, Davidson County No. 88-82-III,

1989 WL 34942 (Tenn. Crim. App., Nashville, April 12, 1989), per. app. denied (Tenn. July

3, 1989), this court approved the use of a prior conviction for malicious shooting to

impeach an accused in a prosecution for assault with intent to commit murder first degree

and assault with intent to commit rape.



                                             D.



       Neither the Tennessee Rules of Evidence nor the appellate courts have established

a brightline test or rigid guidelines for determining whether the probative value of a prior

conviction outweighs its prejudicial effect upon the substantive issues. Sheffield, 676

S.W.2d at 548-49; Tune, 872 S.W.2d at 927; Wiggins, 729 S.W.2d at 295. In Sheffield,

the supreme court set forth the federal “guidelines that have [e]volved” for determining

whether the probative value of a prior conviction outweighs its prejudicial effect. In holding

that a prior conviction for voluntary manslaughter could be used to impeach the accused

in a capital murder prosecution, the court said:



              While examination of those [federal] factors may be useful to
              trial judges in some cases, we decline to adopt them. We
              think it inappropriate to introduce the rigidity that inevitably
              accompanies the mandated use of express guidelines for the
              exercise of judicial discretion involving the weighing and
              balancing of elusive concepts.


676 S.W.2d at 548.

       In Wiggins this court, acknowledging the supreme court’s ruling in Sheffield, stated:



              In the final issue, the defendant says that the trial court erred
              in permitting evidence of his prior conviction for voluntary
              manslaughter and possession of [a] controlled substance for
              resale. This evidence was admitted for impeachment
              purposes. He says that since these offenses did not involve
              dishonesty or false statement, the prejudicial effect of this

                                              7
              evidence outweighed probative value and that the trial judge
              only gave “lip service” to the law in weighing prejudicial effect
              against probative value. . . .

                                           ****

              [O]ur Supreme Court has rejected the adoption of guidelines
              to be followed by trial judges in weighing probative value
              against prejudicial effect with regard to evidence of convictions
              of crimes that do not involve dishonesty or false statement.

                                           ****

              We do not find that the trial judge abused his discretion in
              holding that probative value outweighed prejudicial effect with
              regard to evidence of these two prior convictions. We
              therefore overrule this issue.


729 S.W.2d at 294-95.

                                             E.



       The mere fact a prior conviction of the accused is identical or similar to the offense

for which the accused is being tried does not, as a matter of law, bar the use of the

conviction to impeach the accused as a witness. See State v. Miller, 737 S.W.2d 556, 560

(Tenn. Crim. App.), per. app. denied (Tenn. 1987). Nevertheless, the trial court, when

considering an identical or similar offense, should (a) “assess the similarity between the

crime on trial and the crime underlying the impeaching conviction,” and (b) “analyze the

relevance the impeaching conviction has to the issue of credibility” when weighing the

probative value of the conviction against its prejudicial effect. Farmer, 841 S.W.2d at 839;

N. Cohen, et al., Tennessee Law of Evidence, § 609.9 at 375 (3d ed. 1995).

       In this case, the defendant admits the crimes of felony murder and rape are not

identical or similar in nature. However, the defendant asserts the prejudicial effect of the

felony murder conviction outweighed its probative value because the two offenses are

crimes of violence. As previously stated, crimes of violence may be used to impeach an

accused in a sex-related offense, when, as here, all of the prerequisites of Rule 609 are

met. Blanton, supra; Wiggins, supra; Strong, supra. In short, when the impeaching

offense and the offense for which the accused is being tried are not identical or similar in

nature, the mere fact both are crimes of violence will not result in the exclusion of the

impeaching offense solely on the grounds the two offenses involve violence. Blanton, 926

                                             8
S.W.2d at 959-60. As this court said in Blanton and Strong, “felonies of a violent nature

reflect on the moral character of a witness,” and, as a result, “this evidence is not usually

without probative value.” Blanton, 926 S.W.2d at 960; Strong, slip op. at 2.

       The defendant’s reliance upon State v. Farmer, supra, and Long v. State, 607

S.W.2d 482, 485-86 (Tenn. Crim. App.), per. app. denied (Tenn. 1980), is misplaced.

These cases are distinguishable upon the facts. Both of these cases involved the use of

identical or similar offenses, and the offenses had minimal, probative value for

impeachment purposes.



                                             F.



       This court is of the opinion the trial court did not abuse its discretion by ruling the

State of Tennessee could use the defendant’s prior felony murder conviction to impeach

him if he had opted to testify in support of his defense. As previously noted, the offenses

of felony murder and rape are dissimilar; and the conviction was probative of the

defendant’s credibility if he had taken the stand and claimed he did not rape the victim, or,

in the alternative, if he had claimed the victim consented to the sexual penetration.

       While the defendant did not testify or present any witnesses in support of his

defense, he attempted to establish reasonable doubt by cross-examining the state’s

witnesses, attempting to discredit the scientific evidence, and arguing the weaknesses in

the state’s case to the jury during summation.

       In short, if the defendant had testified he was not the perpetrator of the rape or, in

the alternative, the victim consented to the sexual penetration, these two factual issues

would hinge primarily upon the credibility of the victim and the defendant albeit there was

scientific evidence and proof of other similar rapes to establish his guilt.

       This issue is without merit.



                                             II.



       The defendant contends the trial court committed error of prejudicial dimensions by


                                              9
permitting the State of Tennessee to introduce evidence he had raped two other women

during its case-in-chief. He argues the rapes of these two women were too remote in time

from this case, and the two rapes “were not sufficiently ‘unique’ in their commission so as

to be admissible in the present case.” The State of Tennessee contends the manner in

which the defendant committed the two prior rapes was so unique that the evidence clearly

points to him as the perpetrator.

       The State of Tennessee gave the defendant notice that if he opted to testify in

support of his defense, the state would use three prior bad acts, the rape of three other

women, to impeach him pursuant to Rule 608(b)(3), Tennessee Rules of Evidence. During

the course of the trial, the state advised defense counsel it was going to present two of the

women as part of its case-in-chief. A jury-out hearing ensued. The trial court stated in

ruling: “I do recall the facts. I’m going to let them testify.”1 The trial court did not state the

legal basis for admitting this evidence. Furthermore, neither party requested the trial court

to state the reasons why it was introducing the proof of other crimes.



                                               A.



       The State of Tennessee presented two witnesses, Sarah Johnson and Angela

Arnold. Johnson testified the defendant raped her on June 13, 1991. Arnold testified the

defendant raped her on November 20, 1993. The defendant raped the victim in this case

on October 11, 1993.

       Johnson testified she was walking along Navy Road in Millington when the

defendant stopped and offered her a ride. She had known the defendant for six years.

The defendant turned onto Bethel Road and proceeded to Edmond Orgill Park. They

stopped at the park and talked for a period of time. The defendant then drove toward

Tipton County. He parked his vehicle in a desolate area on a back road. Both the

defendant and Johnson exited the vehicle on their respective sides to urinate. The

defendant then walked around the vehicle and told Johnson to remove her pants. She


       1
        This same evidence was presented in the defendant’s first degree murder trial.
State v. Collier V. Harris, Shelby County No. 02-C-01-9603-CR-00095 (Tenn. Crim. App.,
Jackson, December 3, 1997).

                                               10
thought he was kidding. When she attempted to walk away, the defendant placed his arm

around her neck and squeezed until she lost consciousness.             When she regained

consciousness, she was on the ground near the rear of the defendant’s vehicle. She next

remembered being in the back seat of the defendant’s vehicle. Her pants had been

removed. The defendant vaginally penetrated her in the back seat. He then drove to a

boat ramp at Richardson Landing in Tipton County, another desolate area, and the

defendant raped the victim again inside the vehicle. When Johnson refused to have

intercourse with the defendant, he told her, “You know how I can get it. Don’t make me do

it, be that way again.” The defendant then drove the victim to her residence. She arrived

home at 3:00 a.m. He threatened her if she revealed what had occurred.

       Arnold had known the defendant for approximately six months. She had gone to

a friend’s apartment after having an argument with her husband. When plans to attend a

nightclub in Memphis failed, the defendant asked Arnold to take him home. Subsequently,

the defendant and Arnold discussed the well-being of a mutual friend. The mutual friend’s

girlfriend had been killed in a motor vehicle accident. The defendant told Arnold their friend

was probably at the “tree” in Edmond Orgill Park. When they arrived at the “tree,” no one

was there. They sat on the hood of the vehicle and listened to music. The defendant

attempted to kiss her. She resisted and attempted to get into the vehicle. The defendant

shut the door so she could not enter the vehicle. The defendant then grabbed Arnold

around the neck, applied a choke hold, and Arnold lost consciousness. When she

regained consciousness, she was lying face down behind the vehicle. The defendant had

pulled her pants down. When Arnold tried to lift herself from the ground, the defendant

applied a choke hold a second time and Arnold again lost consciousness. When she

regained consciousness, the defendant was vaginally penetrating her. The defendant told

her “you’re not any good.” He made her pour vodka on the genital area of her body.

       The defendant drove to a store and purchased a package of condoms. He then

drove to another desolate location. He asked Arnold if she wanted to die. He placed a

condom on his sexual organ and raped Arnold a second time. Once he had completed the

act, he removed the condom and placed another condom on his sexual organ. He made

Arnold get on top of him while he vaginally penetrated her a third time. Arnold testified she



                                             11
tried to “just get it over with” so she could go home. The defendant drove Arnold’s vehicle

to his residence. Before exiting the vehicle, he threatened Arnold and told her not to call

the police or reveal what had occurred to anyone.

       There are numerous similarities incident to the above rapes and the rape of the

victim in this case. First, Johnson and Arnold knew the defendant. The victim in this case

did not know the defendant by name, but she knew who he was and the type of automobile

he drove. He drove through the victim’s neighborhood frequently. Second, all three rapes

originated and/or occurred in a secluded area outside of Millington, Tennessee. Johnson’s

rape originated in Millington, but the actual rape occurred just across the Tipton County line

just north of Millington. Third, all of the rapes occurred late in the evening or during the

early morning hours. Fourth, the defendant always took the victim to a remote area where

there were no dwellings or lights. Fifth, the defendant never attempted to conceal his

identity. Sixth, the defendant used a choke hold to subdue all three victims. The hold

caused two of the victims to lose consciousness. When one of the victims awakened, the

defendant applied the choke hold a second time to subdue the victim. He threatened a

second victim with the choke hold if she did not cooperate. The victim in this case testified

she became dizzy and short of breath, but she did not lose consciousness. While the

victim was unconscious, the defendant would remove the victim’s clothing. Seventh, the

defendant made efforts to avoid leaving semen. In two of the rapes, the defendant wore

a condom. In the Arnold rape, the defendant made the victim wash the genital area of her

body with vodka. Eighth, the defendant instructed the victims not to tell anyone about the

rapes. If the victims revealed the rapes, he threatened to rape them again.



                                             B.



       The admissibility of evidence regarding the Johnson and Arnold rapes involves

Tenn. R. Evid. 404(b). This rule states:


              (b) Other Crimes, Wrongs, or Acts. Evidence of other
              crimes, wrongs, or acts is not admissible to prove the character
              of a person in order to show action in conformity with the
              character trait. It may, however, be admissible for other
              purposes. The conditions which must be satisfied before

                                             12
              allowing such evidence are:

              (1) The court upon request must hold a hearing outside the
              jury’s presence;

              (2) The court must determine that a material issue exists other
              than conduct conforming with a character trait and must upon
              request state on the record the material issue, the ruling, and
              the reasons for admitting the evidence; and

              (3) The court must exclude the evidence if its probative value
              is outweighed by the danger of unfair prejudice.


       In Bunch v. State, 605 S.W.2d 227, 229 (Tenn. 1980), the supreme court said proof

of other crimes may be admitted to establish motive, identity, lack of mistake or accident,

or the existence of a common scheme or plan if (a) relevant to one of these issues and (b)

the probative value of the evidence outweighs the danger of unfair prejudice.

       This court must now determine whether the admission of this evidence was relevant

to establish one of the exceptions to Rule 404(b).



                                             (1)



       During the jury-out hearing pursuant to Rule 404(b), the state discussed all of the

exceptions outlined in Bunch. The state did not indicate which of these exceptions it

contended was relevant in this case. Much of the hearing was spent discussing the

similarities between all three rapes and the uniqueness of the defendant’s conduct during

the rapes. It appears the state ultimately limited the relevance of the evidence to the

exceptions of identity and the presence of a common scheme or plan. This court is of

opinion that the evidence was also relevant on the issues of intent and identity.

       Although the defendant did not testify or present witnesses in support of his

defense, it was his contention the victim in this case consented to the sexual intercourse.

He attempted to establish this through cross-examination. The defendant concedes that

if the evidence of other rapes was properly admitted, it was only admissible to establish his

identity.

       The issue of identity was a major issue during the trial. The victim told the

investigating officers the defendant’s name was “Gary Marvin.” She later discovered this



                                             13
was not the defendant’s name. Much was made of this discrepancy. He also attempted

to discredit the DNA evidence presented by the state that linked him to the rape. During

closing argument, defense counsel told the jury the DNA evidence should be “view[ed] with

caution” in an effort to discredit this scientific evidence.



                                               (2)



       The appellate courts of this state have approved the use of other acts in a rape

prosecution. In White v. State, 533 S.W.2d 735 (Tenn. Crim. App. 1975), cert. denied

(Tenn. 1976), the trial court allowed evidence to establish that White had committed similar

rapes within a two-month period. Id. at 743. The evidence was admitted to establish

White’s identity as well as a course of conduct.           Among the similarities were: the

defendant’s use of a knife, forcing the victims into the backseat of a motor vehicle, forcing

the victims to disrobe, discussion of illicit narcotics with the victims, and allowing the victims

to use a tissue. White also rode in a motor vehicle with the victims, took their purses, and

released the victims on a street. Id. at 738. This court noted the rapes were so “strikingly

similar that there [could] be no other conclusion than the fact that the defendant committed

all three rapes. . . .” Id. at 741.

       In Bunch v. State, the supreme court approved the use of another armed robbery

in a prosecution for armed robbery because this evidence was relevant to the issue of

identity. 605 S.W.2d at 231. The court stated:


               [T]he modus operandi of the other crime and of the crime on
               trial must be substantially identical and must be so unique that
               proof that the defendant committed the other offense fairly
               tends to establish that he also committed the offense with
               which he is charged.


605 S.W.2d at 230 (emphasis in original). Among the similarities noted in Bunch: the

robberies were accomplished by two men and one woman, the victims were placed in

restrooms, the two victim businesses were in close proximity, and the robberies occurred

on the same day separated by a few hours. The supreme court further noted:


                [I]t is not necessary that the other crime be identical in every

                                               14
              detail to the offense on trial; it is sufficient if evidence of the
              other crime supports the inference that the perpetrator of it,
              shown to be the defendant, is the same person who committed
              the offense on trial.


605 S.W.2d at 231.

       The same analysis used in determining a 404(b) issue has been used in analyzing

whether severance of similar charges would be proper. State v. Peacock, 638 S.W.2d

837, 840 (Tenn. Crim. App.), per. app. denied (Tenn. 1982) (This court affirmed the denial

of severing several armed robberies and rapes because the crimes were part of a common

scheme or plan. Peacock committed several armed robberies at residences in close

proximity to each other. In each instance, he knocked before entering, demanded money,

drugs and jewelry, forced his victims to disrobe, used a pistol and threatened each victim,

threatened the victims if they looked at his face, and threatened the victims if they called

the police.); State v. Wooden, 658 S.W.2d 553, 557-58 (Tenn. Crim. App.), per. app.

denied (Tenn. 1983) (This court affirmed the joinder of several sex crimes on the grounds

the offenses were similar in modus operandi and occurred within a close proximity of the

time and place. The similarities included: the victims were young white females who lived

in an apartment complex and were alone at the time of the offense; the attacker was in the

apartment when the victim arrived or would enter shortly thereafter; the attacker hid his

face; the attacker performed cunnilingus before penile/vaginal rape; he required the victim

to rub his nipples; and the offenses took place over nineteen months within apartment

complexes in close proximity to each other.); see also State v. Edwards, 868 S.W.2d 682,

693-94 (Tenn. Crim. App.), per. app. denied (Tenn. 1993) (This court upheld the denial of

severance of multiple rape charges based upon the reasoning of Wooden, Peacock, and

Bunch. The victims were white females between the ages of 21 and 24. The attacks

occurred within a two-mile radius at apartment complexes or duplexes. All the victims were

alone and asleep. Each incident involved a burglary before the rape. He usually took

money. All the victims lived on the ground floor. The attacker instructed all the victims to

remain quiet; he rubbed each victim’s breasts and digitally penetrated the victims. The

crimes occurred over a twenty-month period.).

       While the descriptions of the acts committed by the defendant were similar, and



                                              15
though there are some differences in the testimony given by Johnson and Arnold, the

similarities between the offenses far outweigh the minor differences. See State v.

McKnight, 900 S.W.2d 36, 52 (Tenn. Crim. App. 1994), per. app. denied (Tenn. 1995).

       This court must now address the weighing of the probative value versus the unfair

prejudice in the admission of this evidence.



                                            (3)



       Rule 404(b)(3) requires the trial court to weigh the probative value of the other

crimes evidence against the danger of unfair prejudice. The record does not reflect why

the trial court found the testimony given by Johnson and Arnold was probative and why it

outweighed the danger of unfair prejudice to the defendant.

       The factors to be considered when undertaking the weighing process mandated by

Rule 404(b)(3) include the prosecution’s need for the evidence, the likelihood the

defendant committed the other crimes, and the degree of relevance to the issues.

Edwards, 868 S.W.2d at 691. Since the defendant attempted to establish the sexual

intercourse with the victim was consensual, and the defendant made an effort to discredit

the DNA scientific evidence, the state needed this evidence to establish the victim did not

consent to the sexual intercourse with the defendant. The evidence was also needed to

establish the defendant was the person who raped the victim in this case.

       This court concludes the probative value of the evidence admitted in this case far

outweighed the danger of unfair prejudice to the defendant.

       This issue is without merit.



                                             III.



       The defendant contends the trial court committed prejudicial dimensions when

instructing the jury regarding the proof of other crimes, i.e., the rape of the two women who

testified as prosecution witnesses. He argues the instruction should have been limited to

proving his identify, if the evidence was admissible. The record reflects the trial court


                                             16
included the following categories in the instruction in addition to identity: the complete story

of the crime, a scheme or plan, motive, intent, and guilty knowledge.

       The defendant concedes trial counsel did not object to the instruction. In addition,

trial counsel did not include this issue in the motion for a new trial. Since reversal on this

issue would result in a new trial, the issue was required to be included in the motion for a

new trial. Nevertheless, appellate counsel respectfully requests this court to consider this

issue because it constitutes plain error on the face of the record. He cites this court’s

opinion in State v. Adkisson, 899 S.W.2d 626 (Tenn. Crim. App. 1994) to support his

argument. The State of Tennessee, citing federal cases, contends the failure to raise this

issue does not constitute plain error on the face of record.

       This court is of the opinion the defendant has waived this issue. First, the issue was

not raised in the motion for a new trial. Tenn. R. App. P. 3(e); State v. Keel, 882 S.W.2d

410, 417 (Tenn. Crim. App.), per. app. denied (Tenn. 1994). Second, assuming arguendo

this court is willing to consider this issue pursuant to Rule 13(b), Tennessee Rules of

Appellate Procedure, or Rule 52(b), Tennessee Rules of Criminal Procedure, neither party

has briefed this issue on the merits. Thus, the issue is waived pursuant to Rule 27(a)(7),

Tennessee Rules of Appellate Procedure.

       This court parenthetically notes a trial court should limit the scope of the instruction

on proof of other crimes to the specific reason or reasons for its admission into evidence.

The remaining reasons which would justify the admission of such evidence should be

deleted from the pattern jury instruction. This was not done in this case. However, if this

issue was considered on the merits, this court would hold the error was harmless. Tenn.

R. App. P. 36(b).

       This issue is without merit.



                                              IV.



       The defendant contends the trial court committed error of prejudicial dimensions by

sentencing him as a multiple offender and imposing a Range II sentence. He argues he

is a standard offender, and the sentence imposed should have been within Range I. The



                                              17
State of Tennessee correctly confesses error. The state agrees the defendant is a

standard offender, and the trial court should have imposed a Range I sentence.

      The record reflects the defendant has been convicted of simple assault, two counts

of simple possession of marijuana, and possession of a dangerous weapon, all

misdemeanors. He was convicted of murder first degree. The offense occurred on

November 29, 1992. He was convicted of the offense on September 25, 1995. He was

sentenced to life imprisonment on November 15, 1995.

      In the context of this case, the phrase “multiple offender” is defined in Tenn. Code

Ann. § 40-35-106(a)(2)(1990) in the following manner:



             (a) A “multiple offender” is a defendant who has received:

                                          ****

             (2) One (1) Class A prior felony conviction if the defendant’s
             conviction offense is a Class A or B felony.

             (b) In determining the number of prior convictions a defendant
             has received:

             (1) “Prior conviction” means a conviction for an offense
             occurring prior to the commission of the offense for which the
             defendant is being sentenced.


The Sentencing Commission Comments accompanying this statute shed light on the

meaning of the phrase “prior felony conviction.” The Commission Comments state:



             The prior felony convictions used to trigger the multiple
             offender status must have occurred prior to the commission of
             the offense for which the defendant is being sentenced. In this
             sense, the multiple offender classification is a recidivist
             provision designed to punish persons who have been
             previously convicted and then commit new crimes. . . .


       In State v. Blouvett, 904 S.W.2d 111 (Tenn. 1995), the Tennessee Supreme Court

addressed the precise issue raised by the defendant. Justice Birch, speaking for a

unanimous court, stated: “[I]t is clear from the comments [accompanying the applicable

statute] that ‘prior conviction’ means a conviction that has been adjudicated prior to the

commission of the more recent offense for which sentence is to be imposed.” 904 S.W.2d

at 113. In other words, before a prior conviction can be used to enhance the sentencing

                                           18
range, the offense must have been committed and the accused convicted of the offense

prior to the commission of the offense for which the accused is being sentenced.

      In this case, the first degree murder offense was committed prior to the rape of the

victim in this case. However, the defendant was convicted of the murder first degree

offense after the commission of the rape. The rape occurred on October 11, 1993. The

defendant was not convicted of the murder first degree offense until September 25, 1995.

Consequently, the murder first degree conviction could not be used to enhance the

defendant’s sentencing status from a Range I standard offender to a Range II multiple

offender.

      This cause is remanded to the trial court for a new sentencing hearing and the

imposition of a Range I sentence. If either party is aggrieved by the sentence imposed by

the trial court on remand, the aggrieved party may appeal as of right pursuant to Tenn.

Code Ann. §§ 40-35-401 or -402.




                           _________________________________________________
                                     JOE B. JONES, PRESIDING JUDGE



CONCUR:



______________________________________
       DAVID H. WELLES, JUDGE



______________________________________
         JOE G. RILEY, JUDGE




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