             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                  FILED
                                 AT KNOXVILLE
                                                                  October 18, 1999

                               JUNE SESSION, 1999              Cecil Crowson, Jr.
                                                              Appellate Court Clerk




STATE OF TENNESSEE,              *
                                 *    No. 03C01-9805-CR-00174
      Appellee,                  *
                                 *    KNOX COUNTY
vs.                              *
                                 *    Hon. Richard Baumgartner, Judge
STEVEN OTIS NICELY,              *
                                 *    (Rape of a Child; Agg. Sexual Battery)
      Appellant.                 *



For the Appellant:                    For the Appellee:

Tommy K. Hindman                      Paul G. Summers
and                                   Attorney General and Reporter
Laura E. Metcalf
Attorneys
NationsBank Bldg., Suite 700          Todd R. Kelley
550 Main Avenue                       Assistant Attorney General
Knoxville, TN 37901                   Criminal Justice Division
                                      425 Fifth Avenue North
(ON APPEAL)                           2d Floor, Cordell Hull Building
                                      Nashville, TN 37243-0493

Mark Stephens
Knox County Public Defender           Randall E. Nichols
                                      District Attorney General
John Halstead
Asst. Public Defender                 Charm Knight
1209 Euclid Avenue                    Asst. District Attorney General
Knoxville, TN 37921                   City-County Building
                                      Knoxville, TN 37902
(AT TRIAL)



OPINION FILED:

AFFIRMED



David G. Hayes, Judge
                                                   OPINION



         The appellant, Steven Otis Nicely, was convicted by a jury in the Knox County

Criminal Court of one count rape of a child and one count aggravated sexual

battery.

The trial court imposed a twenty-two year sentence for rape of a child and an eleven

year sentence for aggravated sexual battery. The sentences were ordered to run

concurrently. On appeal, the appellant raises four issues for our review: (1) the

sufficiency of the evidence; (2) whether the jury verdict of rape of a child and

aggravated sexual battery violate the protections of double jeopardy; (3) whether the

trial court improperly limited the cross-examination of specific prior instances of the

victim’s sexual conduct under Tenn. R. Evid. 412(c)(4)(ii); and (4) whether the trial

court erred by refusing to charge the jury with range of punishment.



         After review, we affirm the judgment of the trial court.



                                              BACKGROUND

         In the summer of 1994, N.B.,1 the victim, the victim’s mother, Wilma Faye

Wynn, and the appellant lived in the Karns community of Knox County. Ms. Wynn

and the appellant began their relationship around 1992. In 1994, they began living

together. N.B. was eleven years old and entering the sixth grade at that time.

Although the thirty-seven year old appellant and the victim’s mother were unmarried,

N.B. viewed the appellant as a “father figure.” In September of 1995, the victim

confided in a friend that she and the appellant had been involved in sexual activity.

In January of 1996, the appellant was charged in a two count indictment with rape of

a child and aggravated sexual battery. 2



         1
        It is the policy of this court to re fer to child vic tims of sexua l abuse b y their initials. State
v. Schimpf, 782 S.W .2d 186, 1 88 n.1 (T enn. Cr im. Ap p. 1989) .

         2
         The “open dated” indictment charged both offenses occurred between “__ day of June,
1994, an d on diver s and d iverse da tes betw een that d ate and th e __ day o f Septem ber, 199 5.”

                                                      2
       At trial, she testified, providing no specific dates, that the “touchin’ happened

all the time” in his room, the living room, and the kitchen. She testified that the

appellant had touched her vagina with his penis and his mouth. The victim admitted

that she would go into the appellant’s room because she liked the attention. She

stated that during the incidents of abuse, she remained clothed but the appellant

was unclothed.



       The victim recounted that the first sexual encounter occurred when she and

the appellant were watching television in his bedroom. The appellant began rubbing

her back and eventually removed her bra and began rubbing her stomach and

chest. Frightened, the victim left the room. The appellant followed her outside and

told her that if she told they would both be “in trouble.”



       Another incident occurred in the living room, when the appellant digitally

penetrated her vagina. She testified that on another occasion he put her hand on

his penis and she masturbated him until he ejaculated. Yet, another offense

occurred in the victim’s brother’s room. The appellant put his hands on her and

asked if she had had sex standing up before. This offense ceased when the victim’s

mother returned home from work.



       The victim testified that on or about September 3, 1995, the appellant got out

of the shower and had a towel wrapped around him. The victim had entered his

room to retrieve a towel for herself. The appellant pulled her onto the bed where

they both began touching each other. The appellant then penetrated the victim’s

vagina with his penis. When she complained that it hurt, he stopped. She stated

that she liked the appellant to fondle her; however, the penetration scared and hurt

her.



       Later that same day, the appellant took the victim and her brother to the lake.


                                          3
The appellant dropped her brother off at the bank with other children while he and

the victim went riding in the boat. The appellant gave the victim a Valium for a

headache. After entering a cove on the lake, the appellant gave the victim a beer.

That evening, when the appellant and her mother were away at a concert, the victim

drank some liquor, locked herself in the bathroom, and passed out. Her brother

called Debbie, their father’s girlfriend, who took the victim to her trailer in Powell. It

was on this occasion that the victim related to Debbie her sexual encounters with

the appellant. Debbie called the victim’s mother and advised what the victim had

told her.



       A few days later, the victim spoke with the Department of Human Services

(DHS). She told the DHS case worker that the appellant had only penetrated her

once. However, she did tell DHS that he had touched her before. DHS referred the

victim to a psychologist at St. Mary’s Hospital. The victim stated that she was very

unhappy at the time because “[e]verything came out.” The victim remained at the

hospital for nine days. After leaving the hospital, the victim was placed in Peninsula

Lighthouse for further treatment for two months. Next, the victim was placed in

PAASAC where she received continued counseling.



       The victim stated that she had never been penetrated before the actions by

the appellant. However, during the time that the appellant was abusing her, she

was digitally penetrated by another boy while they were kissing.



       On cross-examination, the victim stated that her mother drank heavily during

the times of these offenses and they were experiencing various conflicts in their

relationship. The victim’s domicile fluctuated back and forth between living with her

father and mother. She admitted telling the psychologist that she had provoked the

appellant by grabbing his genitals and removing the covers from the bed in which he

was lying. She admitted that her story had changed from the time she talked to


                                           4
DHS and her testimony in court.



        The victim also told the psychologist that she smoked marijuana and that she

heard voices. However, she denied telling the psychologist of any specific instances

of alcohol or marijuana abuse. She stated that the entire time was very confusing

for her, however, she “did not hallucinate and [was] not mental.”



        James Nicely, the appellant’s brother, testified that he talked to the appellant

on two occasions about his sexual involvement with the victim. The appellant told

him that the victim was “comin’ on to him.” On the second occasion, the appellant

asked for his help. The appellant related that the victim had pulled the towel off of

him and climbed on top of him while he was asleep. When he awakened, there was

a wet spot on the sheets. Further, the appellant related that he had performed oral

sex on the victim at the lake.



        Also, testifying for the State was Nancy Jackson, an employee of the Blount

Memorial Emotional Health and Recovery Center, where the appellant had

apparently submitted himself for evaluation and/or counseling. Unfortunately, the

testimony of Ms. Jackson is not included in the record.3 An exhibit to her testimony

includes the following interview notations: “she touches/grabs him in an

inappropriate way for [sic] past year. . . states he allowed her to masturbate him. . .

I am really worried that I might be a child molester.”



        After resting its case-in-chief, the State elected two offenses pursuant to the

requirements of State v. Shelton, 851 S.W.2d 134, 136 (Tenn. 1993). For the rape

of N.B., the State elected the offense on or about September 3 which occurred in


        3
         Volume II of the trial transcript ends with page 172 while volume III begins with page 202,
omitting nearly thirty pages of transcript from the record. From the table of contents, we note that
this contains a large portion of the State’s proof, i.e., the remainder of the cross examination of
James Nicely and the testimony of Nancy Jackson. The obligation of preparing a com plete and
adequ ate reco rd for the is sues p resente d on app eal rests u pon the a ppealing party. See Tenn. R.
App. P. 2 4(b).

                                                  5
the appellant’s bedroom the same day that the appellant, the victim, and her brother

went to the lake. With regard to the aggravated sexual battery, the State elected the

offense which involved masturbation of the appellant; this type of sexual contact

occurring only on the one occasion.



      The defense presented the testimony of Dr. Jeffrey Davis, a clinical

psychologist employed at St. Mary’s Health System, who treated the victim. From

his report, he testified that the victim and her mother had a “tumultuous” relationship

and she felt abandoned by her father. The victim had reported using Valium,

alcohol, and marijuana and attempts to overdose on drugs. She told the

psychologist that she was experiencing auditory hallucinations in which she heard

people swimming and laughing when she stared outside her window. At one point,

she said that she saw a giant eraser chasing her around her school classroom.

Moreover, she reported seeing “mannequin-like Indians” staring at her.



       The victim told the psychologist that she felt close to the appellant because

he took care of her mother. She acknowledged that she had been provocative

toward the appellant and that she enjoyed the attention she received from him. The

psychologist opined that possibly the victim had perceived the relationship as a

means to strain the relationship between the appellant and her mother. Davis

diagnosed the victim with major depression, “severe without psychotic features,”

alcohol and cannabis abuse, and post-traumatic stress disorder. The psychologist

recommended that the victim be placed on medication, in-patient treatment, family

intervention, and chemical dependency treatment. Although the psychologist did not

feel that her hallucinations were valid in the “true psychotic sense,” he felt they were

a product of her imagination and fantasy.



       Wilma Wynn, the victim’s mother, testified that her daughter has a history of

lying. Ms. Wynn stated that her daughter expressed much distaste for her new


                                         6
environment in Karns and blamed her mother for her father not being around. She

related that she and the victim’s father were not on good terms because he did not

provide any support for his children. Ms. Wynn testified that her daughter had a

habit of opening the shower door on people, removing covers from the bed while

people were under them, and entering her bedroom. She stated that the appellant

had asked her to lock the bedroom door when she left for work in the mornings.

The appellant also began sleeping in blue jean shorts as opposed to the nude. She

recounted an incident on Valentine’s Day when the appellant had bought her a ruby

ring. The victim became extremely jealous and angry until the appellant also bought

her a ring.



       Ms. Wynn stated that the victim has told her on different occasions that the

appellant sexually abused her. Then, on other occasions, the victim denied that the

appellant abused her. Although her daughter was given a pregnancy test upon

admission to the hospital, no test was performed to determine whether the victim

was sexually active.



       Tiffany Wallace, a friend of the victim, presently incarcerated at the juvenile

detention center, testified that the victim was a chronic liar. She stated that, prior to

the victim’s admission to Lighthouse, she and the victim were taking Valium,

smoking marijuana, and drinking alcohol on a regular basis.



                        I. SUFFICIENCY OF THE EVIDENCE

       First, the appellant challenges the sufficiency of the convicting evidence to

sustain a verdict of guilt for rape of a child and aggravated sexual battery. A jury

conviction removes the presumption of innocence with which a defendant is cloaked

and replaces it with one of guilt, so that on appeal, a convicted defendant has the

burden of demonstrating that the evidence is insufficient. State v. Tuggle, 639

S.W.2d 913, 914 (Tenn. 1982). In determining the sufficiency of the evidence, this


                                          7
court does not reweigh or reevaluate the evidence. State v. Cabbage, 571 S.W.2d

832, 835 (Tenn. 1978). On appeal, the State is entitled to the strongest legitimate

view of the evidence and all reasonable inferences which may be drawn therefrom.

State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992), cert. denied, 507 U.S. 954, 113

S.Ct. 1368 (1993). Viewing the evidence under these criteria, it is this court’s

responsibility to affirm the conviction if the proof was sufficient for any rational trier

of fact to have found the essential elements of the offense beyond a reasonable

doubt. Jackson v. Virginia, 443 U.S. 307, 317, 99 S.Ct. 2781, 2789 (1979); State v.

Cazes, 875 S.W.2d 253, 259 (Tenn. 1994), cert. denied, 513 U.S. 1086, 115 S.Ct.

743 (1995); Tenn. R. App. P. 13(e).



       First, within his sufficiency arguments, the appellant contends that the victim

is unbelievable because she changed her testimony concerning (1) the number of

times and the places where the abuse occurred; (2) her alcohol and drug use; and

(3) her previous sexual experiences. Thus, the appellant’s challenge is one of

witness credibility. In essence, the appellant requests that this court trespass upon

the jury’s responsibility to evaluate the credibility of the victim, N.B. It is not the duty

of this court to revisit questions of witness credibility on appeal, that function being

within the province of the trier of fact. See generally State v. Adkins, 786 S.W.2d

642, 646 (Tenn. 1990); State v. Burlison, 868 S.W.2d 713, 718-719 (Tenn. Crim.

App. 1993). Although inconsistencies or inaccuracies may make the witness a less

credible witness, the jury’s verdict will not be disturbed unless the inaccuracies or

inconsistencies are so improbable or unsatisfactory as to create a reasonable doubt

of the appellant’s guilt.   We decline the appellant’s invitation to overturn his

convictions by making a choice different from that of the jury.



       Next, the appellant challenges his conviction for rape of a child. Specifically,

he contends that “the evidence was inconclusive as to whether sexual penetration

even occurred.” He argues that the appellant never mentioned sexual penetration at


                                           8
the hospital, to his father, or to his brother. Moreover, he asserts that penetration

was never proven because no physical examination was performed on the victim.

The State contends that physical evidence is not required for a conviction and the

victim’s testimony of penetration alone was sufficient to support the verdict.



         To support a conviction for rape of a child, the State is required to prove an

“unlawful sexual penetration of a victim by the defendant or the defendant by a

victim, if such victim is less than thirteen (13) years of age.” Tenn. Code Ann. § 39-

13-522(a) (Supp. 1994). In the instant case, the trial court defined sexual

penetration to the jury as “sexual intercourse, cunnilingus, fellatio, anal intercourse,

or any other intrusion, however slight, of any part of a person’s body or any object

into the genital or anal openings of the victim’s, the defendant’s, or any other

person’s body, but emission of semen is not required.” See Tenn. Code Ann. § 39-

13-501(7) (1991).



         This testimony at trial showed the victim, N.B., was twelve years old at the

time of the offense. She testified that the appellant penetrated her vagina with his

penis.4 Therefore, a rational juror could have found that the appellant penetrated

N.B., supporting his conviction for rape of a child. This issue is without merit.



         Moreover, we conclude that the evidence was more than sufficient to find the


         4
         An examination of the record reveals the following testimony during the direct
exam ination of N .B.:
        Q: (Prosecutor) Okay. Tell me how that day started. What do you remember
        about that morning?
        A: (Victim) Goin’ up--or gettin’ up and I think Steve got out of the shower and had
        a towel on and was in his room. I went in his room to get a towel. And he pulled
        me on the bed and started touching me, and I was touching him too. But
        somehow he pulled me on top of him and my clothes [sic] was off and he put it in.
        Q: He put what in where?
        A: He p ut his pen is in my vag ina.
        ...
        Q: Okay. And how did you feel about him putting his penis inside you?
        A: It hurt. I--I--it sca red m e.
        Q: O kay. T his pa rticula r day-- let’s g o bac k to th at pa rticula r day-- he pu t his p enis
        inside you that morning?
        A: Yeah .




                                                        9
appellant guilty beyond a reasonable doubt of aggravated sexual battery. 5 The

victim testified that the appellant placed her hand on his penis and moved it until he

ejaculated.6 Furthermore, the appellant’s admission at Blount Hospital corroborated

this testimony in that, “he allowed her to masturbate him.“ Accordingly, we find the

evidence presented sufficient proof from which a rational juror could reasonably

infer the appellant’s guilt beyond a reasonable doubt. This issue is without merit.



                                       II. DOUBLE JEOPARDY

         Second, the appellant asserts that the jury’s verdicts of guilty of rape of a

child and aggravated sexual battery violate the principles of double jeopardy

because both charges arose from a single incident, i.e., “the vaginal penetration and

masturbation occurred at the same time and involved the same victim.” He argues

that his convictions stem from “the continuation of one sexual act from penetration

to ejaculation” and as such violate double jeopardy protections against multiple

punishment for the same offense. See State v. Denton, 938 S.W.2d 373, 378

(Tenn. 1996). The appellant’s recitation of the facts claims, “[o]n the morning in

early September, the vaginal penetration occurred first, the defendant stopped when



         5
          In order to suppo rt a convic tion for agg ravated sexua l battery, the Sta te is require d to
prove “unlawful sexual contact with a victim by the defendant or the defendant by a victim” and
that “[t]he victim is less than thirteen (13) years of age.” Tenn. Code Ann. § 39-13-504(a)(4)
(Supp . 1994).

         6
          Q: (P rose cuto r) Ok ay. W ere th ere e ver tim es w hen he wo uld ge t you to touc h him ?
         A: (Victim) Hum, once, and I put my hand on his penis.
         Q: O kay. A nd w hen you pu t your h and on his penis , how did tha t hap pen ? Did
         he ask you to? Did he tell you to? How did that happen?
         A: Just k ind of put m y hand on it and started mov ing it.
         Q: W ho did that? Did he--
         A: Yeah.
         Q: H e or yo u--I’m sorr y.
         A: He did.
         Q: Him or you?
         A: He did.
         Q: Okay. He put his hand where?
         A: No . I put m y hand on him --he put m y hand on him .
         Q: H e put your h and on him ?
         A: Yeah.
         Q: Okay. And by on him do you mean his penis?
         A: Yeah.
         Q: Okay. And once he got you to put your hand on his penis, what did he make
         you do with your hand?
         A: Masturbate--



                                                    10
the victim said it hurt, and she completed the sexual act by masturbating the

defendant. We find no proof in the record to support this factual contention.

Indeed, the record reflects that the battery conviction (masturbation) and the rape

conviction were unrelated and occurred on different dates thus constituting two

separate and distinct crimes. 7 For this reason, we find no further analysis of the

double jeopardy issue necessary. This issue is wholly without merit.



                                         III. RAPE SHIELD LAW

         Next, the appellant asserts that he was denied his right to a fair trial because

the trial court erred by limiting the cross-examination of the victim regarding specific

instances of her prior sexual conduct under Tenn. R. Evid. 412. The appellant

argues that the victim’s sexual experiences from persons other than the appellant

“included heavy petting, masturbation, and digital penetration.” Thus, he contends it

was imperative that he be permitted to show that the victim’s “knowledge of sexual

matters” was obtained from persons other than the accused. See Tenn. R. Evid.



         7
           The record contains no evidence as to the date the sexual contact by masturbation
occ urre d. Th e tes timo ny of th e sex ual ba ttery inv olving ma sturb ation was who lly unre lated in tim e
to the rape which occurred “on the morning of the day in early September, 1995" that the three
went to the lake. As previously noted, the State elected offenses and the trial court charged the
jury (1) as to th e rape c harge,
          For you to find the defendant guilty of this offense, . . ., the State must have
          proven beyond a reasonable doubt the existence of the following essential
          elements:

                  (1) That the defendant had unlawful, sexual penetration of the
                  alleged victim, or the alleged victim had unlawful sexual
                  pen etrat ion of the d efen dan t in the bedr oom of the resid enc e in
                  Knox County, Tennessee, occupied by the Defendant . . . and
                  [the victim] on the morning of the day in early September, 1995,
                  that the Defendant . . ., [the victim], and her younger brother went
                  to the lake .
                  ...

and (2) as to the aggr avate d sex ual ba ttery,

         For you to find the defendant guilty of this offense, . . . , the State must have
         proven beyond a reasonable doubt the existence of the following essential
         elements:

                  (1) That the defendant had unlawful sexual contact with the
                  alleged victim , . . ., specifically being the day the a lleged victim , .
                  . . , masturbated the Defendant . . . until he ejaculated in the
                  bedroom of the residence in Knox County, Tennessee, occupied
                  by the De fendan t . . . and [the victim ].
                  ...



                                                      11
412(c)(4)(ii). In sum, he contends that the victim’s sexual experiences with persons

other than himself would have established that (1) the victim was not sexually naive;

(2) she was sexually curious and aggressive toward the appellant; and (3) she

obtained knowledge independently from the appellant to falsify the allegations

against him.



       Before evidence of specific instances of a victim’s sexual behavior may be

admitted at trial, the accused must file a written motion ten days prior to trial,

accompanied by an offer of proof describing the specific evidence and the purpose

for introducing it. Tenn. R. Evid. 412(d)(1). After notice has been given, the trial

court must conduct a hearing outside the presence of the jury and the public to

determine whether the evidence is admissible. Tenn. R. Evid. 412(d)(2). The trial

court must decide (1) whether the evidence is relevant to the issue of knowledge of

sexual matters and (2) the probative value must outweigh the unfair prejudice to the

victim. Tenn. R. Evid. 412(d)(4). “[T]he evidence shall be admissible in the

proceeding to the extent an order made by the court specifies the evidence which

may be offered and areas with respect to which the alleged victim may be examined

or cross-examined.“ Tenn. R. Evid. 412(d)(4).



         In a pre-trial motion hearing, the appellant requested that he be permitted

to cross-examine the victim at trial concerning specific statements she made to case

workers in a Department of Human Services report. The DHS report attributed

statements to the minor victim which she allegedly made during their investigation of

sexual abuse. The report indicated the following statements: (1) the victim related,

“[w]hen asked for specifics of this incident . . . [victim] said that he [appellant] looked

like everyone else, referring to his privates,” and (2) when asked if she had been

sexually active with a boyfriend, “[s]he stated that she had not had sex but admitted

that there had been heavy petting involving digital penetration with boys fourteen

years old.” (Emphasis added).


                                          12
       At the hearing, the minor victim denied making the statement to DHS that she

had been involved in digital penetration with boys. She admitted that on one

occasion she had been digitally penetrated by a friend after they had kissed. Other

than the DHS report, the appellant offered no other direct proof pertaining to the

victim’s alleged prior sexual experiences.



       On cross-examination at the hearing, N.B. related that she knew about sex

“through school and her friends.” She testified that she had a sex education class in

the fifth grade which occurred prior to any of the offenses involving the appellant.

She stated that the appellant began molesting her prior to the one incident with her

fourteen year old friend. Moreover, the appellant’s digital penetration occurred



before the occurrence with the friend. She further stated that she had never seen

another man’s genitalia before she saw the appellant’s.



       In ruling on the motion, the trial court observed:

                 The issue in this case is, you know, whether or not there was--
       there was sexual penetration of this twelve year old child by Mr. Nicely.
       The basis of that testimony or the basis of that charge is the testimony
       of [victim].
                 Their only way to rebut that is to claim that she for whatever reason is
       either lying or mistaken or is dreaming this up. Of course, I think--well-
       -and the only way that they can do that is to attack the credibility.
                 What I’ve tried to do is fashion the purpose of the rule, and that
       is not to drag out somebody’s sexual history. In my judgment this
       young girl doesn’t have a sexual history other than that she’s engaged,
       . . ., in some petting with a teenage boy that involved . . .digital
       penetration. . . .
                 But the only opportunity they have to question her credibility is
       to show that this is not the exclusive sexual contact that this girl has,
       that she would have another basis of knowledge of what sexual
       contact is. . . .
                 I’m going to allow Mr. Hindman [appellant’s trial counsel] to ask
       this question--write it down-- ”Have you”--referring to [victim]-- ”Have
       you engaged in”--or “Have other individuals, other men, engaged in
       digital penetration with you?” And establish whether it’s prior to or
       after [appellant] had done that and on how many occasions. That will
       be the entire scope of the examination with regard to that.



                                         13
       The Confrontation Clause of the Sixth Amendment guarantees the right of the

accused in a criminal prosecution to “be confronted with the witnesses against him.”

Delaware v. Van Arsdall, 475 U.S. 673, 678, 106 S.Ct. 1431, 1435 (1986). “[T]he

main and essential purpose of confrontation is to secure for the opponent the

opportunity of cross-examination.” Id. (citations omitted) (internal quotations

omitted) (emphasis in the original). See also State v. Melvin Edward Henning, No.

02C01-9703-CC-00126 (Tenn. Crim. App. at Jackson, Oct. 24, 1997). “[T]he

Confrontation Clause only guarantees ‘an opportunity for effective cross-

examination, not cross-examination that is effective in whatever way, and to

whatever extent, the defense counsel might wish.’” Pennsylvania v. Ritchie, 480

U.S. 39, 53, 107 S.Ct. 989, 999 (1987) (citation omitted). The propriety, scope,

manner and control of testimony and other evidence, including the scope of cross-

examination, remains within the sound discretion of the trial court, which will not be

reversed absent an abuse of that discretion. See State v. Barnard, 899 S.W.2d

617, 624 (Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1994) (citations

omitted); Tenn. R. Evid. 611(a). We conclude that the trial court achieved the

purpose of the rape shield rule in maintaining “a balance between the paramount

interests of the accused in a fair trial and the important interests of the sexual

assault victim in avoiding an unnecessary, degrading, and embarrassing invasion of

sexual privacy.” Advisory Commission Comments, Tenn. R. Evid. 412. Finding no

abuse of discretion, this issue is without merit.



                   IV. RANGE OF PUNISHMENT INSTRUCTION

       Finally, the appellant argues that the trial court erred by refusing to instruct

the jury with the range of punishment pursuant to Tenn. Code Ann. § 40-35-

201(b)(1) (1997) (repealed 1998) for the charged offenses. Although in State v.

Cook, 816 S.W.2d 322, 326 (Tenn. 1991), our supreme court held that this provision

granted the defendant a statutory right to have the jury informed of the applicable

punishment for the pertinent charges prior to determining guilt or innocence, this


                                          14
statutory right is not absolute. Tenn. Code Ann. § 40-35-201(b)(1) (1997)(repealed

1998) provides in pertinent part:

       In all contested criminal cases, except for capital crimes which are
       governed by the procedures contained in §§ 39-13-204 and 39-13-
       205, upon the motion of either party, filed with the court prior to the
       selection of the jury, the court shall charge the possible penalties for
       the offense charged and all lesser included offenses. (Emphasis
       added).



       In the case sub judice, the appellant concedes that he only requested the

“Truth in Sentencing” instruction following his closing argument. As argued by the

State, the appellant never filed a motion requesting the court to instruct the jury on

the range of punishment for the offenses of rape of a child and aggravated sexual

battery. Therefore, the trial court was not obligated to instruct the jury regarding

range of punishment. See State v. Joanna Gail Rosa, No. 03C01-9707-CR-00261

(Tenn. Crim. App. at Knoxville, Jan. 6, 1999); State v. Marcus A. Velez, No. 01C01-

9611-CC-00488 (Tenn. Crim. App. at Nashville, Jan. 30, 1998), perm. to appeal

denied, (Tenn. Jan. 4, 1999). Accordingly, this issue is without merit.



       For the foregoing reasons, the judgments of conviction for rape of a child and

aggravated sexual battery are affirmed.




                                    ____________________________________
                                    DAVID G. HAYES, Judge




CONCUR:



______________________________________
JOHN H. PEAY, Judge




                                         15
_______________________________________
JOHN EVERETT W ILLIAMS, Judge




                               16
