             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT NASHVILLE               FILED
                         AUGUST 1998 SESSION
                                                          September 23, 1998

                                                          Cecil W. Crowson
                                                         Appellate Court Clerk
STATE OF TENNESSEE,        )
                           )       C.C.A. No. 01C01-9707-CC-00289
            APPELLEE,      )
                           )       Lincoln County
v.                         )
                           )       Honorable Charles Lee, Judge
JOHN R. LEWIS,             )
                           )       (Aggravated Sexual Battery)
            APPELLANT.     )




FOR THE APPELLANT:                 FOR THE APPELLEE:

Randall E. Self                    John Knox Walkup
P. O. Box 501                      Attorney General & Reporter
Fayetteville, TN 37334             425 Fifth Avenue, North
                                   Nashville, TN 37243-0493

                                   Karen M. Yacuzzo
                                   Assistant Attorney General
                                   425 Fifth Avenue, North
                                   Nashville, TN 37243-0493

                                   William M. McCown
                                   District Attorney General
                                   215 East College
                                   Fayetteville, TN 37334

                                   Weakley E. Barnard
                                   Assistant District Attorney General
                                   Marshall County Courthouse, Room 407
                                   Lewisburg, TN 37091




OPINION FILED: _______________________________


AFFIRMED


L. T. LAFFERTY, SPECIAL JUDGE
                                           OPINION



       The defendant, John R. Lewis, was convicted of aggravated sexual battery by a

Lincoln County jury. The trial court imposed a sentence of ten (10) years in the Department

of Correction.



       In this appeal of right, the defendant presents the following issues:

       (1) The court erred in allowing statements of V.B.1 made to medical
           personnel to be admitted into evidence under Rule 803 (4) of the
           Tennessee Rules of Evidence.

       (2) The statements and confessions made by the defendant to
           Detective Doug Borenger were made in violation of the defendant’s
           privilege against self-incrimination.

       (3) The State violated Tennessee Rules of Evidence 608 by asking the
           defendant whether other minor girls were prohibited from coming to
           his home.

       (4) The court erred in sentencing the defendant by enhancing his
           sentence for abusing a position of private trust and by not applying
           as a mitigating factor that the defendant’s criminal conduct neither
           caused nor threatened serious bodily injury and by not considering
           the defendant’s positive contributions to his family and to society or
           affording any weight to the absence of any substantial or relevant
           criminal history.


       We affirm the judgment of the trial court.



                                     HISTORICAL FACTS



       On the evening of November 1, 1996, the victim, V.B., age 9, was a guest in the

defendant’s home. The victim and her brother, J.B., age 12, were spending the night with

the defendant’s two children, L. L., age 8, and B.L., age 12. The victim and the defendant’s

daughter, L. L., went to bed at 8:00 p.m. The victim testified she wore her dad’s t-shirt

which came just below her knees and had on panties. The victim and L. L. slept in a double

bed, with L.L. facing the wall and the victim facing the outside edge.



       1
        In order to protect the identity of minor victims of sexual abuse, it is the policy of this
Court to refer to the victims by their initials. See State v. Schimpf, 782 S.W.2d 186, 188,
n.1 (Tenn. Crim. App. 1989).

                                                2
       The victim testified that in the early morning hours of November 2, 1996, she was

awakened by the defendant, who was kneeling by the bed. The defendant was rubbing the

victim’s t-shirt in the area of her breasts. Then, the defendant reached under the victim’s

t-shirt and began rubbing her breasts in a circular motion. The defendant then moved his

hand down her stomach to her private part and began rubbing the outside of her panties.

The victim testified the defendant then reached inside her panties and “tried to go inside

of me . . . He kind of went up and down, like that.” The victim testified the defendant kissed

her on the mouth with his tongue. The victim was pretending to be asleep during this

episode.



       The victim then rolled over in bed facing L.L. and the wall. The defendant had left

the bedroom. The victim got up and went to the bathroom, locked herself in, and began to

cry. The victim was scared. After five minutes, the victim came out of the bedroom and

saw the defendant sitting in the living room. The defendant asked the victim, “Are you

okay?”, to which the victim did not respond. The victim returned to bed and fell asleep.

Later, when the victim had awakened, the victim asked the defendant if she could call her

mother. The defendant advised her it was too early. Later that day, the victim’s mother

arrived and picked up both her and her brother. They proceeded to Krystal’s. While in the

car, the victim told her mother what had occurred at the defendant’s home.



       Mrs. Sherry Armstrong, mother of V.B., testified she and her ex-husband had two

children, V. B., age 9, and J.B., age 12. The parents had joint custody and, on the

weekend of November 2, 1996, Mrs. Armstrong had custody. On the night of November

1, 1996, Mrs. Armstrong learned she was to pick up her children at 8:00 a.m. on November

2, 1996 at the defendant’s home. Mrs. Armstrong did not know the defendant nor his

family. Mrs. Armstrong arrived at the defendant’s home at 8:00 a.m., but was told by her

son, J.B., that he wanted to stay and see the Tennessee football game and his sister was

asleep.



       At 1:00 p.m., Mrs. Armstrong picked up her children and proceeded to Krystal’s for



                                              3
lunch. After approximately 15 minutes, Mrs. Armstrong observed her daughter crying. The

victim, V.B., told her mother what had happened at the defendant’s home. Mrs. Armstrong

proceeded to the Fayetteville Police Department and filed a complaint with Officer Karen

Gardner. Ms. Joan Quick, a Department of Human Services (DHS) employee, arrived and

obtained the facts from the victim. Afterwards, Mrs. Armstrong took her daughter to the

Lincoln County Regional Hospital for an examination.



       The State called Ms. Judy Wiser, emergency room nurse, to testify as to her

findings. Ms. Wiser, a licensed practical nurse and employee of the Lincoln Regional

Hospital since 1989, testified she obtained a history from the victim at 5:30 p.m. on

November 2, 1996 for the doctor’s treatment. Ms. Wiser testified she gave this history to

Dr. Patel, and assisted Dr. Patel in his examination of the victim. When asked to relate the

victim’s history, Ms. Wiser testified:

           The child stated to me that on the night of 11/1/96, that she spent
           the night with a friend. And early in the morning of 11/2/96, that the
           friend’s father came into the room where she and the friend were
           asleep, and the father began to touch her on both breasts, and then
           he moved his hand down her stomach, went to her vagina and
           started rubbing her vagina, and then proceeded to stick his finger in
           her vagina, then kissed her by putting his tongue on her mouth, and
           that was stated exactly by the child.



       During the examination of the victim, Ms. Wiser observed some redness at the

entrance of the victim’s vagina, which could be consistent with the child’s story. Also, the

victim complained of burning upon urination. Ms. Wiser testified she observed no tears,

scratches, or bruises at the vaginal entrance, and the redness observed could be caused

by many things. The victim was given no medication or any treatment procedures.



       Dr. Yashwant Patel testified he is a licenced physician and has practiced in Lincoln

County for 20 years. Dr. Patel has experience in the examination of children in abuse

cases. Dr. Patel advised the jury he reviewed the history of the victim, V.B., and, along

with Nurse Wiser, examined the victim at 5:30 p.m. on November 2, 1996. Dr. Patel found

slight irritation in the victim’s vaginal area, which meant redness in the vaginal area on the

left side, but no tears. Dr. Patel found no evidence of penetration. The doctor further


                                              4
testified he found no reason for any medication, but told the victim to follow up treatment,

if needed.



       The State next called Detective Doug Borenger of the Lincoln County Sheriff’s

Department to testify as to the results of his investigation. As the Criminal Investigator for

the Sheriff’s Department, Detective Borenger reviewed the victim’s complaint and the DHS

report. The officer contacted the defendant. The detective and the defendant agreed to

meet on November 8, 1996 at 8:30 a.m; however, the defendant failed to appear.

Detective Borenger called the defendant at his home. The defendant sounded intoxicated

and said he had been drinking. The detective and the defendant rescheduled their

appointment for November 12, 1996.



       On November 12, 1996, Detective Borenger and Special Agent Donna Pence,

Tennessee Bureau of Investigation, interviewed the defendant. Agent Pence advised the

defendant of his rights and the defendant acknowledged this by signing a form. The

defendant denied the incident, stating he had a bad memory, was prone to blackouts, and

had a drinking problem. The defendant had been advised he was not under arrest and,

at the conclusion of the interview, the defendant was permitted to leave.



       Detective Borenger next interviewed the defendant on November 25, 1996 at 3:45

p.m. The defendant had arrived at 1:00 p.m. for an interview by Special Agent Michael

Smith, Tennessee Bureau of Investigation. Agent Mike Smith advised the defendant of his

rights, which he acknowledged by signing a form. At 3:45 p.m., both Detective Borenger

and Agent Smith started an interview with the defendant. Concerning the allegation, the

defendant stated he had gone into the bedroom in the early morning hours of November

2 and had touched the victim’s hair and run his hand down her shoulder, down over her

stomach, and had touched her, in his words, “where the hair grows.”



       Later, the defendant requested to speak to Detective Borenger privately. Both

parties went to a restroom/locker room, used by deputy sheriffs, where the defendant



                                              5
advised the detective he was 47 years old and did not know what a vagina was. After an

explanation of a female’s genital area by Detective Borenger, the defendant slapped his

thigh and said “You mean a p----.” Whereupon, the defendant agreed to talk to Detective

Borenger further. After a re-reading of the rights to the defendant, the defendant gave a

short, written statement. The statement was read to the jury.



      Detective Borenger agreed at the interview in November, 1996, he and the

defendant had a general discussion about loss of memory, blackouts, and drinking

problems. Detective Borenger also agreed he might have suggested the defendant receive

alcohol abuse treatment, since he had made similar suggestions in his police experience.



      The defendant testified in his own behalf. The defendant related he is a high school

graduate, an Army veteran of thirteen and one-half years, and was presently employed as

an over-the-road truck driver. The defendant is married and has two children.



      The defendant testified he observed the victim and her brother dropped off at his

home, by the children’s father, on the evening of November 2, 1996. The defendant had

been drinking and went to bed between 6:00 and 7:00 p.m. The defendant woke up

between 11:30 p.m. and 12:00 a.m. and went to check on the children, as it was chilly. The

defendant then went in the kitchen and began drinking some beer. The defendant testified

he saw his daughter and the victim in the living room at about 12:00 a.m., and they were

cleaning house. He told them he would give them $1.00, and both girls went back to bed.



      The defendant testified, at about 4:00-4:30 a.m., he went into the girls’ bedroom and

noticed they had no covers over them. The defendant covered them up, while both were

asleep. The defendant testified that V.B. had hair in her eyes, so he reached down and

pushed it away. Further, he stated while he was pulling the covers up, “my hand might

have went down her arms or her deals or whatever.” The defendant returned to the kitchen

and turned the TV on. The defendant testified he saw the victim go to the bathroom and

she was crying. Upon the defendant’s inquiry, the victim stated her stomach hurt. The



                                            6
victim asked to call her real mother, but the defendant refused her, stating it was too early.

Although the victim told the defendant her mother was up that early, the defendant advised

the victim to wait until 7:00. The victim returned to bed. The defendant went to bed at 5:00

and got up between 11:00 a.m. and 12:00 p.m.



       The defendant testified he recalled everything that night and completely denied he

rubbed or touched the child in a sexual manner, nor for any gratification.



       The defendant testified he had several conversations with Detective Doug Borenger.

The defendant testified he met Detective Borenger and Agent Pence on November 12,

1996. Although he does not recall signing a waiver of rights form, he acknowledged his

signature on the form. During this interview, the defendant recalled they discussed his

abuse of alcohol and that he could probably get treatment for it, if put on probation. In this

interview, the defendant informed the officers about touching V.B.’s hair and covering her

arm, but denied telling the officers he touched her breasts. The defendant told Agent

Pence, “I didn’t go into my daughter’s bedroom. I remember walking down the hall and

looking in. I just kind of poked my head in. I did not go in.” When asked about this

inconsistent statement with his testimony of being in the bedroom, the defendant gave a

confusing reply, “Not knowingly, at the time.”



       On November 25, 1996, the defendant agreed to appear at the Lincoln County

Sheriff’s office for the purpose of a polygraph test to be administered by the Tennessee

Bureau of Investigation. At 1:00 p.m., the defendant was interviewed alone by Special

Agent Michael Smith. The defendant acknowledged Agent Smith read to him an advice

of rights, which included the statement the defendant was not under arrest and at any time

he was entitled to cease the interview and free to leave. The defendant signed the form

and submitted to this test.2 The defendant was reinterviewed by Detective Borenger and

Agent Smith at 3:45 p.m.




       2
        The defendant, in the opinion of Agent Smith, was deceptive. The test concluded
at 3:30 p.m.

                                              7
         During this interview, the defendant testified he became scared of Agent Smith, who

had slammed the table with his hand. Also, in this interview the defendant testified he was

denied a Coke, but was allowed to use an adjoining bathroom. After leaving the bathroom,

the defendant entered the lobby of the Sheriff’s office, spoke to his wife, and smoked a

cigarette. The defendant informed his wife, “I ain’t got long, but things don’t looked [sic]

good, and you need to get out here and get a lawyer.” However, upon returning to the

interview room, the defendant did not request a lawyer. Upon the defendant’s return, he

admitted signing a statement, stating he had felt of the victim from the outside, felt her

vaginal area, and went down to the area “where the hair grows.” The defendant testified

he gave this statement because he was scared.



         The defendant corroborated the testimony of Detective Borenger as to what

occurred in the restroom and signed a statement. The defendant believed he could not

leave until he signed that statement. Based upon all of this testimony, the jury found the

defendant guilty as charged.



                                   APPELLATE ISSUES

                                             A.

                        TENNESSEE RULE OF EVIDENCE 803(4)



         The defendant contends the trial court erred in permitting Ms. Judy Wiser, nurse

practitioner, to testify in the presence of the jury as to the statements made by the victim

concerning the facts of the offense. Further, the defendant contends there was no basis

sufficient to support the admission of the victim’s statements to medical personnel under

Rule 803(4), since the statements were made for evaluative purposes only and not for the

purpose of medical diagnosis and treatment. State v. McLeod, 937 S.W.2d 867 (Tenn.

1996).



         In an out of jury hearing, the State requested the trial court to permit both the

mother, Sherry Armstrong, and Ms. Judy Wiser to testify as to the underlying facts related


                                              8
to them by the victim, V.B. The State contended the statements made to the mother were

admissible under Rule 803(2), Excited Utterance. However, the trial court denied the

State’s request.



       Ms. Judy Wiser testified that she talked to the victim, V.B., on November 2,1996,

in the emergency room of the Lincoln Regional Hospital. Ms. Wiser testified the purpose

of the history was “to help the doctor do his findings and, also, if there’s any legalities

involved.” Ms. Wiser testified she took word for word what the victim said, including the

victim did not complain of any pain at the time of the penetration, but did complain of

burning upon urination. All of this information was given to Dr. Patel for his examination.

Ms. Wiser testified she assisted Dr. Patel in his examination and observed some redness

in the vaginal area. Ms. Wiser agreed with the State’s question that the history taken in

this cause was like any other history on any other examination for the purpose of making

sure that the treatment was accurate and correct. Also, Ms. Wiser testified her nurse’s

notes reflected “Needs to be checked,” which was for the purpose of an evaluation as

opposed to diagnosis and treatment.



       In its ruling, the trial court found the testimony of the victim’s mother significant.

Even if the DHS had not requested a medical examination, the mother believed an

examination was necessary, stating “I was going to take her anyway,” due to the child’s

complaint of irritation in the vaginal area. Further, the trial court found the history taken by

Ms. Wiser was for the doctor’s diagnosis and treatment. The trial court held:

           It gives the doctor, in my mind, when they have the complete picture
           of what had occurred, he has better idea of the length of time that
           was involved, the nature of penetration if there was some action by
           the alleged victim that ceased it, whether or not that could contribute
           to any injuries that she might have sustained.

            So the Court finds that there was a dual purpose in this the
            examination, one of which was a medical purpose, and that it is --
            that the statement was taken for the purpose of diagnosis and
            treatment as well as the collection of evidence. But even so, it is
            admissible.



       Trial courts have broad discretion in determining the admissibility of evidence, and



                                               9
their rulings will not be reversed absent an abuse of discretion. State v. Campbell, 904

S.W.2d 608, 616 (Tenn. Crim. App. 1995); State v. Baker, 785 S.W.2d 132, 134 (Tenn.

Crim. App. 1989), per. app. denied (Tenn. 1990). Rule 803(4) of the Tennessee Rules of

Evidence is an exception to the rule against the admission of hearsay. It permits the

admission of:

           Statements made for purposes of medical diagnosis and treatment
           describing medical history; past or present symptoms, pain, or
           sensations; or the inception or general character of the cause or
           external source thereof insofar as reasonably pertinent to diagnosis
           and treatment.



      In State v. Gordon, 952 S.W.2d 817, 822 (Tenn. 1997) and State v. Stinnett, 958

S.W.2d 329, 331 (Tenn. 1997), the Rule 803(4) exception is predicated on the perception

that statements made for the purpose of medical diagnosis and treatment are reliable and

trustworthy:

           The rationale underlying the hearsay exception for statements made
           for purposes of medical diagnosis and treatment is that the
           declarant’s motive of obtaining improved health increases the
           statement’s reliability and trustworthiness. This motivation is
           considered stronger than the motivation to lie or shade the truth.
           Patients generally go to doctors to receive treatment, and treatment
           usually depends, in part, on what is said; thus the declarant has a
           self-interested motive to tell the truth.


State v. Gordon, 952 S.W.2d at 822 (quoting State v. Barone, 852 S.W.2d 216, 220 (Tenn.

1993)).



       In State v. McLeod, 937 S.W.2d 867, 871 (Tenn. 1996), the supreme court

addressed the rationale above in cases involving children. The supreme court said:

           Courts should not presume that statements made by a child to a
           medical services provider are untrustworthy, merely because there
           is disputable evidence of the child’s motivation to be truthful. Rather,
           the admissibility decision should be based upon a thorough
           examination of all of the circumstances surrounding the statement.
           (emphasis added).



       We find the circumstances surrounding V.B.’s statements are significant. W ithin

fifteen minutes of the victim seeing her mother, the victim told her mother what happened

to her at the defendant’s home. The victim was taken to the Fayetteville Police Department

                                             10
where she gave a statement to officers and a representative of the DHS. All statements

were consistent in what the victim had said happened to her. Between 5:30 and 6:00 p.m.,

approximately thirteen hours after the offense, the victim gave a history of the facts to an

emergency room nurse which was utilized by Dr. Patel in his examination for both

diagnosis and treatment of any possible injuries for this offense. The examining physician

found redness in the vaginal area which was consistent with the victim’s history.



       It is also significant that the defendant testified he did go into the bedroom and touch

the victim, but denied there was any improper touching. In addressing the trial court’s

denial of a motion to suppress, this Court can consider testimony given at trial. State v.

Johnny M. Henning,         S.W.2d       , No. 02S01-9707-CC-00065, slip op. at 14 (Tenn.,

Jackson, June 22, 1998); State v. Adrian Wilkerson and Steven Murphy, Davidson County

No. 01C01-9610-CR-00419 (Tenn. Crim. App., Nashville, August 26, 1998).



       In conclusion, after consideration of the circumstances surrounding the making of

V.B.’s statements, we find the statements were made for medical diagnosis and treatment.

State v. McLeod, 937 S.W.2d 867, 871 (Tenn. 1996). We affirm the trial court’s denial of

the defendant’s motion to suppress the testimony of the nurse practitioner as to the victim’s

history of this offense.




                                              11
                                           B.

               MOTION TO SUPPRESS DEFENDANT’S CONFESSION



      The defendant complains the trial court erred in not granting his motion to suppress

his confession given to the Lincoln County Sheriff’s Department. The defendant concedes

that his Miranda rights were read to him, but his statement was not freely and voluntarily

given, due to the coercive actions of law enforcement officers.



                                           (1)



      In his testimony, the defendant advised the trial court he talked to Detective Doug

Borenger by phone and arranged an interview for November 8, 1996, but failed to appear

due to intoxication. On November 12, 1996, the defendant testified he met with Detective

Borenger and Special Agent Donna Pence of the Tennessee Bureau of Investigation at the

Lincoln County Sheriff’s Department. The defendant was advised of his Miranda rights by

Agent Pence and signed a form acknowledging the same. The defendant discussed the

accusation of the victim, but could not remember anything about the situation. The

defendant agreed to take a polygraph test which was set up for November 25, 1996. The

defendant was permitted to leave.



      The defendant testified he and his wife arrived at the Lincoln County Sheriff’s

Department on November 25, 1996 at approximately 12:45 p.m. The defendant was taken

to a conference room where he met Special Agent Michael Smith of the Tennessee Bureau

of Investigation. Agent Smith administered the polygraph test. Agent Smith explained to

the defendant how the test would be conducted and read a TBI advice of rights form to

the defendant, which the defendant signed. The defendant testified the polygraph test took

approximately one and one-half hours, during which he had several breaks and talked to

his wife. At the conclusion of the test, the defendant testified he was ready to go, but

Agent Smith said most people wanted to know the results. The defendant testified he was

going to leave and call back about the results, but “they wouldn’t let me leave--it seemed


                                           12
everything turned completely around, he turned into a mad man, as far as I’m concerned.”

The defendant testified Agent Smith became irritated over two questions and the

defendant’s response at the end of the test. Although the defendant was of the impression

he could not leave the interrogation, the defendant did talk to his wife during the break.



       Upon returning to the conference room, the defendant was questioned by Agent

Smith about the defendant’s answers on the test. The defendant did not recall if Detective

Borenger was present. In response to a question, the defendant testified that Agent Smith

stated, “Don’t insult my intelligence” and slammed the table with his fist. The defendant

believed the agent was about to hit him. The defendant testified he wanted to talk to his

wife and get a Coke, but Agent Smith told him to give the money to an officer and she

would get one for him. The defendant was allowed to use the bathroom and, during this

break, he “snuck” out to talk to his wife. Upon the defendant’s return, Agent Smith and

Detective Borenger questioned the defendant, and the defendant admitted touching the

victim’s hair. Agent Smith then said, “take my hand and shake it.”



       The defendant testified he asked to see Detective Borenger in the bathroom as the

defendant was embarrassed over not knowing the term vagina. The defendant described

Detective Borenger’s reply as being “by the legs.” The defendant acknowledged Detective

Borenger wrote something down in the bathroom and he signed it. The defendant testified

that, as he and his wife were leaving the parking lot, Detective Borenger came to the car

and advised the defendant he had forgotten to have the defendant sign the waiver form

for the advice of rights. Also, the defendant testified he did not request an attorney nor was

he under arrest.



       Mrs. Rhonda Lewis, the defendant’s wife, testified she and her husband went to the

Sheriff’s Department on November 25, 1996. Her husband was to take a polygraph test.

Mrs. Lewis saw her husband a total of three times, the last when he snuck out. Her

husband advised her that he felt he could not leave, and that he was going to be arrested.

Her husband did not request an attorney.



                                             13
       Michael Smith, Special Agent for the Tennessee Bureau of Investigation and a

licensed polygraph examiner, testified he met the defendant on November 25, 1996. This

polygraph examination was at the request of the Lincoln County Sheriff’s Department.



       Agent Smith explained to the defendant how a polygraph test is conducted.3 The

defendant was advised of his Miranda rights through consent form. The defendant signed

the waiver form, did not request an attorney, and agreed to talk and take the test. Also, the

defendant was advised he was free to leave at any time and signed a form acknowledging

this right. The defendant declined to have the interview and test tape-recorded. During the

pretest interview, Agent Smith and the defendant discussed the meaning and definition of

a vagina. As to the relevant issues, Agent Smith testified the defendant, in the test, denied

touching the victim’s vagina, fondling the victim’s vagina, or inserting his finger in her

vagina. The defendant was given two fifteen-minute breaks, and during the last break,

Agent Smith evaluated the test results.



       Agent Smith testified he and Detective Borenger went over the test results with the

defendant. When Agent Smith informed the defendant he had failed, the defendant

appeared surprised in one way and not in another way. Agent Smith did not recall

specifically striking the desk with his fist, but might have used the term, “Don’t insult my

intelligence.” Agent Smith denied threatening or making any promises to the defendant

for this interview or test. Agent Smith agreed the post-test interview lasted from 3:45 p.m.

to 5:57 p.m., during which the defendant was permitted to take breaks. Agent Smith

agreed he shook hands twice with the defendant, at the inception of the polygraph test and

again when the defendant stated he touched the victim’s hair.



       Detective Borenger testified he first talked to the defendant about an interview on

November 8, 1996, but the defendant failed to appear due to the defendant’s drinking. On

November 12, 1996, Detective Borenger and Agent Pence interviewed the defendant, after




       3
       The defendant had a previous experience with polygraphs in that he had taken one
for employment.

                                             14
an advice of rights and the defendant signing a form. The defendant had no memory of the

accusation of the victim. The defendant agreed to take a polygraph test. The defendant

was given a polygraph test on November 25, 1996 by Agent Michael Smith. Detective

Borenger was not present during the test.



       Detective Borenger testified he saw the defendant, during a break, outside the

department smoking a cigarette and talking to his wife. Detective Borenger saw the

defendant at 3:45 p.m. after the test. During this post-test interview with Agent Smith,

Detective Borenger testified the defendant asked to see his wife. Detective Borenger

responded, “We are getting down to the truth and his wife didn’t have the answer.” The

detective testified he did not refuse the defendant the right to see his wife. Detective

Borenger denied Agent Smith struck the desk with his fist.



       At approximately 5:30 p.m., the defendant requested to see Detective Borenger

privately. The defendant and Detective Borenger went to a restroom/locker room where the

defendant said, “I’m 40 something years old. I don’t know what a vagina is.” After an

explanation by Detective Borenger, the defendant said, “You mean a p----.” Detective

Borenger reread the defendant his Miranda rights and obtained a statement from the

defendant. The defendant told Detective Borenger he went into the bedroom and noticed

the girls did not have blankets on. The defendant felt V.B.’s hair, down her breast, down

her stomach, and down to her area “where the hair grows.” The defendant denied

entering the victim’s panties, but only felt of her from the outside and felt her vaginal area.

The defendant signed the statement and initialed his answer to a question. Detective

Borenger testified he was seeking the truth from the defendant and not a confession.

Detective Borenger testified that he did go out to the defendant’s car and have the

defendant sign the admonition waiver, since the detective had forgotten to have the

defendant do so earlier.



       The trial court set out a findings of fact in which it found there was probable cause

to interview the defendant. The defendant was advised of his constitutional rights under



                                              15
the Fifth Amendment; the defendant voluntarily appeared for a polygraph test in a non-

secured facility; the defendant was advised he was not under arrest and fully advised of

his rights to remain silent and the presence of an attorney; the fact the interview was over

five hours was not in and of itself coercive; and the fact the defendant was able to sneak

out and consult with his wife. The trial court failed to find any facts to support the

defendant’s petition that law enforcement officers used any coercion against the defendant

so as to overbear his will. The court found the defendant’s statement was freely and

voluntarily given.

                                             (2)



       When an accused moves to suppress his statement given to law enforcement

officers, the findings of fact made by the trial court, at the hearing on the motion, are

binding upon this Court unless the evidence contained in the record preponderates against

these findings. State v. Smith, 933 S.W.2d 450, 455 (Tenn. 1996); State v. Odom, 928

S.W.2d 18, 23 (Tenn. 1996); State v. Stephenson, 878 S.W.2d 530, 544 (Tenn. 1994).

The trial court, as the trier of fact, is in the best position to assess the credibility of the

witnesses, determine the weight and value to be afforded the evidence and resolve any

conflicts in the evidence. State v. Odom, 928 S.W.2d at 23. However, this Court is not

bound by the trial court’s conclusions of law. The defendant has the burden of establishing

that the evidence contained in the record preponderates against the findings of fact made

by the trial court. Braziel v. State, 529 S.W.2d 501, 506 (Tenn. Crim. App.), cert. denied

(Tenn. 1975).

                                             (3)



        The determination of whether a confession has been obtained improperly, by

coercive or improper inducement, can only be made by examining all of the surrounding

circumstances involving the interrogation leading to the confession or statement. State v.

Monts, 400 S.W.2d 722 (Tenn. 1966). The defendant does not dispute that his Miranda

rights were read to him and he executed a form acknowledging the same. The defendant

does complain the “extensive questioning had already been conducted had the ultimate


                                              16
effect of overbearing the defendant’s will to resist.” Rogers v. Richmond, 365 U.S. 534,

81 S.Ct. 735, 5 L.Ed.2d 760 (1961); State v. Kelly, 603 S.W.2d 726, 727 (Tenn. 1980). In

addition, the defendant argues that his request to see his wife amounted to an invoking of

his right to remain silent. However, the defendant cites no authorities for such claim.



       In determining whether the defendant’s confession was voluntary, this Court must

consider whether the surrounding circumstances indicate that the officer’s conduct

undermined the defendant’s free will and critically impaired his capacity for self-

determination. Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 1879, 6

L.Ed.2d 1037 (1961). Also, coercive police activity is a necessary predicate to finding that

a confession is not “voluntary.” Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 93

L.Ed.2d 473 (1986).



       In summation, we find the evidence does not preponderate against the trial court’s

findings. The defendant was 47 years old at the time of trial, had several prior arrests for

misdemeanors, and had undergone a previous polygraph examination. The record is clear

the defendant was never in custody during any of the interviews. The record is substantial

that he was advised of his rights on at least three occasions. Although the defendant

testified he was refused the right to see his wife, during the post-interview, the defendant

“snuck” out and talked to his wife. The law enforcement officers denied they threatened or

intimidated the defendant. We find no reason to disagree with the findings of the trial court

with respect to the voluntariness of the defendant’s statement.




                                             17
                                              C.

                                  VIOLATION OF RULE 608

                           TENNESSEE RULES OF EVIDENCE



         The defendant contends the State attempted to improperly cross-examine the

defendant as to prior bad acts, thus depriving the defendant of a fair trial due to the highly

inflammatory nature of the misconduct.



         During the State’s cross-examination of the defendant, the following exchange took

place:

             Q.   You’ve told this jury something I didn’t bring up. You’ve
                  told them that V’s stepmama had to call you once before
                  about biting her. Did she? Did she call you and fuss at
                  you?

             A.   Did she do what?

             Q.   Call you and fuss at you about biting V on the chest?

             A.   (No audible response.)

             Q.   Did she do that?

             A.   She told me what V said.

             Q.   Yeah. She wasn’t happy about it either, was she?

             A.   No, she wasn’t.

             Q.   And this was about a year before this happened that
                  we’re here on today, wasn’t it?

             A.   I don’t know.

             Q.   You talked your way out of that one, didn’t you?

             A.   No, I didn’t. I didn’t even get a chance to explain.

             Q.   She told you V couldn’t come over there anymore unless
                  your wife was present in the house, didn’t she?

             A.   (No audible response.)

             Q.   What?

             A.   Something along that line. I can’t remember exactly.

             Q.   Something along that line. That’s not the only little girl
                  that can’t come over to your house, is it?


                                              18
            Mr. Self: Your Honor, I object to the relevance of this question.

            The Court: Approach the bench.

            (At the bench)

            The Court: Where are we going with that last question?

            Mr. Barnard: The -- his sister will not allow her daughters to come
            over to the house. And he was questioned about that by the TBI.
            And he gave an explanation. He said it was because they saw him
            walking around the house naked.

            The Court: I will sustain the objection. Although relevant, the
            prejudicial effect outweighs the probative value and would lead to
            confusion of the issues in front of the jury.

            Mr. Barnard: Yes, sir I understand.

            (Open court.)

            The Court: Sustain the Defendant’s objection. The jury will
            disregard the last question.




       The defendant argues that he was entitled to an out of jury hearing pursuant to Rule

608(b)(3) of the Tennessee Rules of Evidence to determine the admissibility of such

evidence so the defendant could make an intelligent decision to testify in his own behalf.



       Although we agree the State’s question was improper, the trial court promptly

sustained the defendant’s objection and instructed the jury to disregard the question. It is

well settled in this State that a prompt instruction by the trial court, in most cases, cures

any error. State v. Blackmon, 701 S.W.2d 228, 233 (Tenn. Crim. App.), per. app. denied

(Tenn. 1985); State v. Smith, 893 S.W.2d 908, 914 (Tenn. 1994); State v. Melvin, 913

S.W.2d 195, 201 (Tenn. Crim. App.), per. app. denied (Tenn. 1995). The defendant has

failed to establish that the jury did not follow the instruction. There is no merit to this issue.




                                               19
                                              D.

                           SENTENCING CONSIDERATIONS



       The defendant insists the trial court erred by enhancing his sentence for abusing a

position of private trust and not applying the mitigating factor that the defendant’s conduct

did not cause nor threaten serious bodily injury. At the sentencing hearing on May 6, 1997,

the State urged the trial court to impose a sentence of twelve years, Range I, standard

offender, based on five enhancement factors. Tenn. Code Ann. § 40-35-114(1), (4), (5),

(7) and (15). The defendant urged the trial court to consider as a mitigating factor the fact

the defendant did not cause nor threaten serious bodily injury to the victim. Tenn. Code

Ann. § 40-35-113(1). Thus, the defendant requested the minimum sentence of eight years.



       When a defendant complains of his or her sentence, we must conduct a de novo

review with a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). Therefore,

the burden of showing that the sentence is improper is upon the appealing party. Id. The

presumption that determinations made by the trial court are correct is conditioned upon an

affirmative showing in the record that the trial court considered the sentencing principles

and all relevant factors and circumstances. State v. Ashby, 823 S.W.2d 166 (Tenn. 1991);

State v. Smith, 898 S.W.2d 742 (Tenn. Crim. App. 1994), per. app. denied (Tenn. 1995).



       If appellate review reflects that the trial court properly considered all relevant facts

and its findings of fact are adequately supported by the record, this Court must affirm the

sentences “even if we would have arrived at a different result.” State v. Fletcher, 805

S.W.2d 785 (Tenn. Crim. App. 1991). In arriving at the proper determination of an

appropriate sentence, the trial court must consider: (1) the evidence at trial and the

sentencing hearing; (2) the presentence report; (3) the principles of sentencing and

arguments as to sentencing alternatives; (4) the nature and characteristics of the criminal

conduct involved; (5) evidence and information offered by the parties on enhancement and

mitigating factors; (6) any statements the defendant wishes to make in the defendant’s

behalf about sentencing; and (7) the potential for rehabilitation or treatment. Tenn. Code


                                             20
Ann. § 40-35-210(a) and (b) (1997); Tenn. Code Ann. § 40-35-103(5); State v. Holland,

860 S.W.2d 53 (Tenn. Crim. App. 1993).



       In this case, the defendant was convicted of aggravated sexual battery, Tenn. Code

Ann. § 39-13-504, and, therefore, was not eligible for any consideration of an alternative

sentence. Tenn. Code Ann. § 40-35-303. Since the trial court considered the sentencing

principles applicable to this offense, we conduct our review with the presumption that the

trial court was correct.



       In determining the appropriate sentence, the trial court referred to the guidelines as

required by the Tennessee Sentencing Act. The trial court found two enhancement factors:

(1) the defendant had a history of criminal convictions, four or five DUI convictions based

on the defendant’s admission in the presentence report, and (2) the defendant abused a

position of private trust. In rejecting the defendant’s request to apply the lack of serious

bodily injury as a mitigating factor, the trial court found the testimony of Mrs. Sherry

Armstrong, the victim’s mother, compelling. Mrs. Armstrong testified her daughter

continues to suffer trauma and that the victim has sought counseling through her school

for this offense. The trial court stated:

            Serious bodily injury does not necessarily mean a cut, abrasions or
            other physical trauma to the body but may also be a mental trauma
            and if there is a protracted loss of a member of a mental faculty in
            the form of trauma there in this court’s mind given the nature of the
            offense as well as the facts of this particular case there was a threat
            of what the law defines as serious bodily injury.



       In assessing the enhancement factors proven by the State, the trial court gave little

weight to the defendant’s history of past convictions, due to their age. The defendant

contends the enhancement factor of the abuse of a private trust is not applicable to him,

in that due to a prior agreement between the victim’s stepmother, the defendant’s wife was

always present when the victim was in the defendant’s home. The trial court rejected this

argument by stating:

            Now, the Court can and in this case does take into consideration the
            circumstances of the offense in determining the method manner and
            degree that the private trust was abused. In that particular situation


                                              21
           or this situation argument the State does have some merit that this
           child in effect felt trapped in the situation that not only did the
           defendant abuse his position by going into the room by committing
           the offense for which he would have not been able to do but was for
           a period of time able to cover up the offense by not allowing the
           child to communicate with or parents or others and I think the Court
           can place a much more significant and greater weight upon 40-35-
           114 (15) than it might in some other cases.



      In conclusion, we find the evidence in this record fully supports the trial court’s

imposition of a ten-year sentence. The judgment of the trial court is affirmed.




                                         ________________________________________
                                         L. T. LAFFERTY, SPECIAL JUDGE



CONCUR:



__________________________________
JOHN H. PEAY, JUDGE



__________________________________
THOMAS T. WOODALL, JUDGE




                                           22
