            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT KNOXVILLE              FILED
                            NOVEMBER 1996 SESSION         January 26, 1998

                                                         Cecil Crowson, Jr.
                                                          Appellate C ourt Clerk



STATE OF TENNESSEE,                  )     C.C.A. NO. 03C01-9606-CC-00237
                                     )
      Appellee                       )     RHEA COUNTY
                                     )
v.                                   )     HON. THOMAS W. GRAHAM,
                                     )     JUDGE
BILL SANDELL,                        )
                                     )     aggravated sexual battery
      Appellant                      )




For the Appellant:                   For the Appellee:

Philip A. Condra                     Charles W. Burson
District Public Defender             Attorney General & Reporter

B. Jeffrey Harmon                    Elizabeth T. Ryan
Assistant Public Defender            Assistant Attorney General
P.O. Box 220                         450 James Robertson Parkway
204 Betsy Pack Dr.                   Nashville, TN 37243-0493
Jasper, TN 37347

                                     James Michael Taylor
                                     District Attorney General

                                     Will Dunn
                                     Assistant District Attorney General
                                     265 Third Ave., Ste. 300
                                     Dayton, TN 37321




OPINION FILED ________________________



AFFIRMED



JOHN K. BYERS
SENIOR JUDGE
                                       OPINION


       The defendant was indicted for rape of a child and convicted of the lesser

included offense of aggravated sexual battery. He was sentenced to ten years in

prison and was fined $25,000.00, which the trial judge reduced to $10,000.00

because of the defendant’s indigency.

       On appeal, the defendant challenges the trial court’s method of impanelling

the jury as inconsistent with Rule 24 of Tennessee Rules of Criminal Procedure, the

trial court’s denial of a mistrial when testimony of a continuing pattern of molestation

was given, the trial court’s admission of testimony as to the victim’s “fresh complaint”

and the trial court’s imposition of a ten-year sentence and a $10,00.00, alleging that

the punishment is excessive.

       We affirm the judgment of the trial court.

       The defendant lived with his wife, Tammy, and her children, Gary Barnes and

the victim. The victim was 12 years of age. On October 4, 1992, the defendant

gave his wife some Valium, and she fell asleep in the living room. After his wife fell

asleep, the defendant came to the victim’s room. He pulled down her jogging pants

and underwear. He then told her to pull up her underwear and walk through the

living room to the washer and dryer. The victim testified that he placed her seated

on top of the washing machine, pulled down her pants and underwear again, pulled

down his pants and placed his penis almost completely into her vagina. At this

point, the victim’s brother returned to the trailer and defendant stopped, telling her to

go into her mother’s bedroom and pretend she had fallen asleep there.

       Standing in front of the washer, a person can view the front door and the

living room, where the victim’s mother was sleeping. A door opposite the washer

and dryer leads to Tammy Sandell’s bedroom. After Gary Barnes came into the

trailer, the defendant announced that it was bedtime and that the victim needed to

go to her own bedroom. She walked through the living room to her bedroom, and




                                           2
her brother noticed that she seemed upset. He asked her whether anything was

wrong, but she told him that nothing was wrong, she was just sleepy.

       The next day, the victim told her friend, Ladawya Morgan, what the defendant

had done to her the night before. She then talked with a teacher, Amy Bauer, about

what had happened. As a result of these conversations, the victim decided to tell

her mother what had happened. Ladawya Morgan went to the victim’s home with

her after school to lend her support. However, when they reached the victim’s

home, Tammy Sandell was not there.

       The victim told her brother what had happened. He went to his grandparent’s

house and got a pistol. When the defendant and Tammy Sandell returned home,

Gary Barnes pointed the pistol at the defendant. His uncle took the gun away from

him, and he went back to his grandparent’s house and called the police. In the

meantime, the victim, Ladawya, Tammy Sandell and the defendant went inside the

trailer. The defendant and the victim talked privately for a time, and she testified

that he threatened her father and her mother. When the officer arrived, he

suggested that everyone go to the Sheriff’s office and make a report. The

defendant, Tammy Sandell, Ladawya and the victim all traveled to the police station

in the defendant’s truck.

       At the police station, Officer Charles Byrd spoke to all of the parties as a

group. The victim, who was crying and very upset, told him that nothing had

happened, that she had made it up because she was angry with the defendant.

Officer Byrd and Karen Young, who works for the Department of Human Services,

then spoke with the victim alone in Officer Byrd’s office. She maintained that

nothing had happened. Officer Byrd told everyone that they were free to go.

       The defendant, Tammy Sandell, Ladawya and the victim left the police

station. As they were riding in the truck, either Tammy Sandell or the victim said to

the defendant, “Bill, you done it. You know you did.” The defendant admitted that




                                           3
he had done it and said that he would get his stuff together and leave but “just don’t

go to the law.”

       After dropping off Ladawya, the defendant, Tammy Sandell and the victim

returned to the trailer. The victim’s father, Kenny Caraway, had heard about what

had happened, and he came to the trailer that same evening. He testified that the

defendant told him to “give him two days and not go to the law, give him two days,

he’d get his stuff and be out of here and [he’d] never see his face again.”

       The defendant challenges the trial court’s method of impanelling the jury as

inconsistent with TENN. R. CRIM . P. 24. The trial court seated twelve prospective

jurors in the box and an additional twelve prospective jurors in the first two rows

behind the bar for voir dire. The defendant complains that this is in violation of Rule

24(c), which provides:


               Peremptory Challenge and Procedure for Exercising. -- After
       twelve prospective jurors have been passed for cause, counsel will
       submit simultaneously and in writing, to the trial judge, the name of
       any juror either counsel elects to challenge peremptorily. Upon each
       submission each counsel shall submit either a challenge or a blank
       sheet of paper. Neither party shall make known the fact that the party
       has not challenged. Replacement jurors will then be examined for
       cause and, after passed, counsel will again submit simultaneously,
       and in writing, to the trial judge the name of any juror counsel elects to
       challenge peremptorily. This procedure will be followed until a full jury
       has been selected and accepted by counsel. Peremptory challenges
       may be directed to any member of the jury, and counsel shall not be
       limited to replacement jurors. Alternate jurors will be selected in the
       same manner. The trial judge will keep a list of those challenged and,
       if the same juror is challenged by both parties, each will be charged
       with a challenge. The trial judge shall not disclose to any juror the
       identity of the party challenging him.


       It is the defendant’s burden to prove prejudice in the selection of a jury. State

v. Coleman, 865 S.W.2d 455, 458 (Tenn. 1993). Appellant argues that his ability to

fully examine prospective jurors was hampered by the fact that some of these jurors

were too distant for him to be able to fully gauge their expressions and reactions to

questions. He submitted an affidavit in his motion for new trial in which he testified

that he had measured the distance between the podium where he stood and the




                                           4
second row behind the bar and estimated an average of 27 feet between him and

the farthest prospective jurors. We do not find the defendant was prejudiced by the

distance between the prospective jurors and the questioning attorneys. However,

we do strongly recommend, as the Supreme Court did in Coleman, that the trial

court follow the proper procedure for impanelling juries in the future to avoid

prejudice to the judicial process. See Coleman, 865 S.W.2d at 458.

       The defendant also argues that the trial court erred in denying a mistrial when

witnesses gave testimony implying a continuing pattern of molestation despite the

fact that the State was only prosecuting one occurrence. We find the incidents to

which the defendant refers did not require the trial court to declare a mistrial. The

decision to grant a mistrial is a matter of discretion for the trial court, State v.

McPherson, 882 S.W.2d 365 (Tenn. Crim. App. 1994), which should be exercised

with “the greatest caution” and only in “the most urgent circumstances.” State v.

Witt, 572 S.W.2d 913, 917 (Tenn. 1978)

       The trial court properly provided curative instructions on the two occasions

where witnesses offered spontaneous, nonresponsive testimony which suggested

that there might have been previous sexual molestation of the victim by the

defendant. These curative instructions were well-crafted so they would not highlight

the objectionable testimony. We must assume that the jury followed the instructions

of the trial court. State v. Baker, 751 S.W.2d 154, 164 (Tenn. Crim. App. 1987)

(citing State v. Lawson, 695 S.W.2d 202, 204 (Tenn. Crim. App. 1985).

       The defendant cites two other incidents which he argues required a mistrial.

One was a question by the attorney general, who asked the victim whether the

defendant had ever threatened her previously, to which the witness did not respond.

Another incident was the victim’s testimony on redirect that she and the defendant

had serious problems. We do not find that this would suggest prior sexual batteries

to the jury, and it is, in fact, very similar to testimony that the defendant elicited in his




                                             5
cross-examination of the victim to demonstrate that the victim and the defendant did

not get along well.

         The defendant also argues that the trial court erred in allowing Ladawya

Morgan Luna, Amy Bauer and Officer Charles Byrd to testify as to the fact and

details of what Tanya told them about what happened the evening before. This

testimony was allowed into evidence on the theory of fresh complaint, which has

since been held not not to apply in cases where a child is the victim of sex abuse.

State v. Livingston, 907 S.W.2d 392 (Tenn. 1995). The state argues that there was

no prejudice to the defendant since the evidence was admissible as corroborative

evidence of prior consistent statements.

         The defendant argues that the prior consistent statement rule should not

apply in this case, since the state first brought out the victim’s inconsistent statement

to Officer Byrd during its direct examination. However, the defendant clearly

attacked the victim’s credibility on cross-examination. Defense counsel asked her

three times if she had lied to Officer Byrd and Ms. Young and then asked if she then

told them “a new story.” He attempted to show that the victim was mad at her step-

father because of disagreements between him and her mother. He attempted to

show that she was frequently in trouble for lying. He also tried to show that the

events on that evening as the victim described them were unlikely, since it took

place not far from where her mother was sleeping and because of the medical

evidence. He asked whether she told her brother the truth when he came home that

night.

         The defendant was clearly attacking the victim’s credibility and suggesting

that she had fabricated her testimony because she was mad at the defendant. The

testimony of Ladawya Morgan Luna and Amy Bauer is clearly admissible for

corroboration of Tanya’s testimony by statements consistent with her testimony

made prior to her inconsistent statement. See State v. Meeks, 867 S.W.2d 361,

374 (Tenn. Crim. App. 1993) cert. denied 114 S. Ct. 1200 (1994). The trial judge




                                            6
gave the jury a limiting instruction, explaining that their testimony as to the facts and

details of what the victim told Ladawya Morgan and Amy Bauer was not evidence

that what the victim said was true, but only evidence as to the victim’s credibility.

Officer Byrd testified that the victim told him that nothing had happened, that she

was mad at the defendant. He did not testify as to anything else the victim told him.

We find this statement did not prejudice the defendant.

         Finally, the defendant objects to the sentence and fine imposed upon him as

excessive. The range for a Range I offender for a Class B felony is eight to twelve

years.

         Review of the length, range or manner of service of a sentence is de novo on

the record, accompanied by a presumption that the determinations of the trial court

are correct. T.C.A. § 40-35-401(d). However, the presumption of correctness only

applies upon an affirmative showing that the trial court considered the relevant

sentencing principles. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The

burden is upon the defendant to show the impropriety of the sentence. T.C.A. § 40-

35-401(d) Sentencing Commission Comments.

         The presumptive sentence in a felony case is the minimum in each range

unless the enhancement factors outweigh the mitigating factors. The court must

start at the minimum sentence and enhance accordingly for the enhancement

factors and reduce accordingly for the mitigating factors. T.C.A. § 40-35-210(c).

The trial court in this case found three enhancement factors applied and gave some

consideration to two mitigating factors.

         The trial court applied as enhancing factors that defendant has a previous

history of criminal convictions or criminal behavior, that the offense involved a victim

and was committed to gratify the defendant’s desire for pleasure or excitement and

that the defendant abused a position of private trust.

         The trial court improperly considered the fact that the offense was committed

to gratify the defendant’s desire for pleasure or excitement as an enhancing factor.




                                            7
The offense of aggravated sexual battery requires as an element of the offense that

the touching be for the purpose of sexual arousal or gratification and, therefore, this

intent cannot also be used as an enhancing factor. State v. Kissinger, 922 S.W.2d

482, 486 (Tenn. 1996).

       The state argues that the court could have applied the enhancement factor

that the defendant has a previous history of unwillingness to comply with the

conditions of a sentence involving release into the community, because the

presentence report indicates that the defendant was found in violation of his

probation for an aggravated assault conviction. We agree that this factor applies.

       The trial court considered the fact that defendant’s prior convictions occurred

at a young age as partial mitigation of the enhancement factor of a previous history

of criminal convictions or criminal behavior. He also somewhat considered as a

mitigating factor that the defendant had provided his family with necessities. We do

not find this mitigating factor to be supported by any proof in the record. We agree

with the attorney general’s argument at sentencing that this mitigation factor is

extremely inappropriate considering the victim of this offense was the defendant’s

step-daughter.

       The defendant argues that the trial court erred in failing to consider that the

defendant’s conduct neither caused nor threatened serious bodily injury in mitigation

of his sentence. The state argues that the trial court properly did not apply this

factor because his attempts to penetrate the vagina of the victim, who had not fully

passed through puberty, could have torn her hymenal membrane or caused other

internal damage. The trial court stated that, if this factor did apply, “very, very little

weight” could be accorded to it. We agree.

       We find the balance of the applicable enhancement and mitigating factors is

in favor of enhancement. The record supports the trial court’s sentence of ten

years’ imprisonment.




                                             8
      The defendant also challenges his fine, which is reviewable under the same

standard as a sentence of incarceration. State v. Bryant, 805 S.W.2d 762 (Tenn.

1991). The fine should be based on the factors to be considered in setting the

sentence and upon the defendant’s ability to pay the fine. Bryant, 805 S.W.2d at

766. Although the defendant is indigent, he committed a serious crime and his

sentencing factors balance toward enhancement. W e find that the fine is

appropriate and not excessive.

      We affirm the judgment of the trial court and, finding the defendant to be

indigent, assess the costs of appeal to the State of Tennessee.




                                               John K. Byers, Senior Judge

CONCUR:




Joseph M. Tipton, Judge




Paul G. Summers, Judge




                                         9
              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                   AT KNOXVILLE

                     NOVEMBER 1996 SESSION                           FILED
                                                                             26,
                                                                     January 28, 1998
STATE OF TENNESSEE, )
                    )                                               Cecil Crowson, Jr.
                                                                     Appellate C ourt Clerk
      Appellee,     )               No. 03C01-9606-CC-00237
                    )
                    )               Rhea County
v.                  )
                    )               Honorable Thomas W. Graham, Judge
                    )
BILL SANDELL,       )               (Aggravated sexual battery)
                    )
      Appellant.    )



                                 CONCURRING OPINION



       I concur in the majority opinion’s results and most of its reasoning. However, I

question the extent to which it appears to allow the victim’s previous statements to

others to be admitted into evidence to corroborate her testimony once her credibility

was attacked. It is not every attack on credibility that allows for the use of prior

statements.



       Ordinarily, prior consistent statements of a witness are not admissible to bolster

the witness’ credibility. State v. Braggs, 604 S.W.2d 883, 885 (Tenn. Crim. App. 1980).

Use of such statements has been viewed as cumbersome, a waste of time, confusing

and unduly prejudicial. Without the prohibition, a party could use a parade of witnesses

who heard the witness say something similar, resulting in the jury being influenced to

decide the case on the repetitive nature of or the contents of the out-of-court

statements rather than on the in-court, sworn testimony. See Curtis v. State, 167 Tenn.

430, 437, 70 S.W.2d 364, 366 (1934); Neil P. Cohen, et al., Tennessee Law of

Evidence § 608.11, at 360 (3d ed. 1995). However, once the opponent of a witness



                                             10
brings the issue of credibility to the forefront by attacking or impeaching that witness’

testimony, through cross-examination or other evidence, we allow certain types of

witness rehabilitation to occur through corroborative proof to rebut the attack. A key

component for admissibility, though, is that the prior statement must be relevant to

rebutting the attack.



       In this case, as the majority opinion points out, the defendant sought to show

that the victim was mad at him because of disagreements between him and her mother.

The defendant’s goal was to show that the victim had a motive to accuse him falsely.

However, the record reflects that the defendant was attempting to show that the motive

existed at the time of the initial accusation and carried forward through the trial. Under

these circumstances, the prior consistent statements did not rebut this attack -- no

statement was shown to have occurred before the motive to fabricate was implied to

have risen. See, e.g., Sutton v. State, 155 Tenn. 200, 204, 291 S.W. 1069, 1070

(1927); Dietzel v. State, 132 Tenn. 47, 72, 177 S.W . 47, 53-54 (1915). In other words,

the testimony and the prior statements would all have occurred with the motive to

fabricate. Thus, the prior statements were not relevant to rebutting the claimed motive

to lie. See State v. Kendricks, 891 S.W.2d 597, 603 (Tenn. 1994).



       Similarly, the fact that the defendant tried to show that the victim frequently lied

and tried to show that the assault did not occur because of its claimed proximity to her

sleeping mother and because of the negative medical evidence does not allow for the

use of the prior statements. In similar fashion to the motive to fabricate, the claim that

the victim is a frequent liar is not rebutted by evidence that she has made a prior

statement consistent with her trial testimony -- evidence of chronic lying would affect the

prior statement, as well. As far as the defendant’s claim that the physical evidence did

not support her testimony about an assault, the evidence of prior consistent statements

would, again, have no relevance to rebutting such a claim.



                                             11
General attacks upon a witness’ credibility do not, by themselves, open the door for

admission of prior consistent statements.



       The pivotal points, though, relate to the evidence -- presented by the

state -- that the victim did not tell her brother and mother of the assault on the night it

occurred and that the victim told Officer Byrd in her first statement to him that nothing

had happened. Initially, I do not believe that the state should be allowed to justify

presenting the victim’s claimed prior consistent statements as corroboration of her

testimony when the state, itself, presents the evidence that would give rise to a question

of the victim’s credibility. On the other hand, and as in this case, when defense counsel

relies upon the evidence that attacks credibility, through cross-examination or

otherwise, then the state may seek to corroborate the victim’s testimony with relevant

prior consistent statements.



       As for the fact that the victim did not tell her brother and mother on the night of

the assault, it brings into play the basic reasoning behind the fresh-complaint doctrine.

That is, to the extent that the victim would be expected to complain immediately to

others about the assault, her lack of complaint could support an inference that the

assault did not happen. To rebut this negative inference, it would be relevant for the

state to show that the defendant had threatened her if she told anyone and that the

next day -- away from the defendant -- she told people at school that the defendant had

raped her. However, disclosure of the details of the assault would not be necessary to

rebut the negative inference.



       As for the victim’s first statement to Officer Byrd that nothing happened, it is a

prior inconsistent statement relative to her trial testimony and the defendant relied upon

that fact in cross-examining her. Therefore, the victim’s statements at school are prior

consistent statements relevant as corroboration to the victim’s testimony, reflecting



                                             12
what she said when the defendant was absent. Similarly, the victim’s complaint of rape

to Officer Byrd in her second statement when she was, again, away from the defendant

is relevant for corroborating her testimony and for placing doubts on her prior claim that

nothing happened. As before, though, I doubt that disclosure of the details of the

assault would be necessary to rebut the negative inferences.



       However, the few details of the offense that were disclosed by the witnesses to

the victim’s prior statements were elicited by the defendant’s cross-examination. Thus,

although the state inappropriately presented the victim’s prior complaints in its direct

examination of her, I do not believe that such evidence more probably than not affected

the verdict to the defendant’s detriment. See T.R.A.P. 36(b). Once the defendant

cross-examined the victim as he did, the corroborating testimony elicited by the state

from the other witnesses was appropriate. Therefore, I concur in affirming the judgment

of conviction.



                                          ___________________________
                                          Joseph M. Tipton, Judge




                                            13
