           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT KNOXVILLE            FILED
                        SEPTEMBER 1998 SESSION
                                                      January 6, 1999

                                                     Cecil Crowson, Jr.
                                                     Appellate C ourt Clerk

STATE OF TENNESSEE,              )
                                 )   C.C.A. NO. 03C01-9801-CC-00029
           Appellee,             )
                                 )   ANDERSON COUNTY
VS.                              )
                                 )   HON. JAMES B. SCOTT, JR.,
ROSCOE H. WOODS,                 )   JUDGE
                                 )
           Appellant.            )   (Rape)



FOR THE APPELLANT:                   FOR THE APPELLEE:


JERRY SHATTUCK                       JOHN KNOX WALKUP
101 South Main St.                   Attorney General & Reporter
Clinton, TN 37716
                                     TODD R. KELLEY
                                     Asst. Attorney General
                                     John Sevier Bldg.
                                     425 Fifth Ave., North
                                     Nashville, TN 37243-0493

                                     JAMES N. RAMSEY
                                     District Attorney General

                                     JAN HICKS
                                     Asst. District Attorney General
                                     Rm. 127
                                     Anderson County Courthouse
                                     Clinton, TN 37716




OPINION FILED:____________________



AFFIRMED


JOHN H. PEAY,
Judge
                                      OPINION



              A jury convicted the defendant of three counts of raping his daughter.

Following a sentencing hearing, the defendant was sentenced to concurrent sentences

of eight years on counts one and two and ten years on count three. The defendant now

appeals, raising the following issues for review:

       I. Whether the evidence is insufficient to support the jury’s verdict because
       there was no evidence to corroborate the victim’s version of events and no
       evidence that the victim told anyone of the abuse, which would corroborate
       her credibility; and

       II. Whether the trial court erred in failing to grant the defendant a new trial,
       that is:

              A. Whether the jury’s verdict is contrary to the weight of the
              evidence;

              B. Whether the trial court erred in allowing the victim to
              testify she had told a friend about the rapes two years after
              they occurred;

              C. Whether the trial court erred in excluding the testimony of
              Dr. Ira Lew, a psychiatrist who treated the victim, on the basis
              of psychiatrist/patient privilege under T.C.A. § 24-1-207;

              D. Whether the trial court erred in allowing the State to
              impeach the credibility of defense witness Josh Woods, the
              victim’s twin brother;

              E. Whether the trial court erred in allowing the State to
              impeach Josh Woods’ testimony through the rebuttal
              testimony of Mark Jones;

              F. Whether the trial court erred in allowing the State to
              impeach the credibility of defense witness Paula Woods, the
              victim’s stepmother;

              G. Whether the trial court erred in not instructing the jury, as
              the defense requested, to consider the fact that the victim
              failed to report the rapes immediately after they occurred;
              and

              H. Whether the jury’s verdict was the result of passion,
              prejudice, or caprice?

Finding no merit to the defendant’s arguments, we affirm.

                                              2
                     In 1989, after the defendant divorced his first wife, he was awarded custody

of his two children, the victim J.W.1 and her twin brother Josh. In 1992, the defendant

remarried, and by May 1993, he, J.W., and Josh had moved into their new home with the

defendant’s new wife, Paula Woods, and her two daughters from a prior marriage. J.W.

testified that around midnight one evening in November 1993, the defendant asked her

to watch television with him downstairs. According to J.W., he eventually undressed her,

performed oral sex on her, and forced her to reciprocate. J.W. also testified that one

evening in the spring of 1994, the defendant woke her in her bedroom at night and told

her to come downstairs with him to watch television. According to J.W., he placed her

on the floor, and the two engaged in mutual oral sex. J.W. further testified that later that

spring, the defendant again woke her in her bedroom at night and touched her breasts,

stomach, and in between her legs. According to J.W., he then undressed her and

performed oral sex on her, but when he attempted to penetrate her, she pushed him off

of her.



                     J.W., who was thirteen years old at the time of these incidents, testified that

none of this contact was consensual. Over objection, she also testified she first told a

friend of these incidents approximately two years after they occurred. She then told her

friend’s mother, another friend, and her psychologist. In July 1996, she reported the

incidents to the authorities.



                     The defendant first argues that the evidence is insufficient to support the

jury’s verdict of guilt on three counts of rape because there was no evidence to

corroborate the victim’s version of events and no evidence that she told anyone of the

abuse soon after it occurred, which the defendant claims would corroborate her



          1
              Pursuant to the policy of this Court, the name of the minor victim will not be used.

                                                          3
credibility. The defendant was indicted for three counts of rape by sexually penetrating

his daughter by means of coercion, in violation of T.C.A. § 39-13-503(a)(1). The victim’s

testimony described three incidents during which the defendant performed oral sex on

her against her will and forced her to reciprocate. Contrary to the defendant’s argument,

neither the victim’s version of events nor her credibility needs to be corroborated in order

to be sufficient. Rather, it was the jury’s duty, and theirs alone, to weigh the victim’s

credibility and decide whether the events she described actually occurred. State v.

Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). The jury decided they did. The evidence

is sufficient to support that determination.



                 The remainder of the defendant’s arguments are not supported by citations

to authority.2      As such, the arguments are waived. Rules of the Court of Criminal

Appeals of Tennessee 10(b); State v. Killebrew, 760 S.W.2d 228, 231 (Tenn. Crim. App.

1988). Even so, we will address why each remaining issue lacks merit.



                 The defendant argues the trial court should have granted his motion for a

new trial, claiming the jury’s verdict was against the weight of the evidence because the

victim’s testimony and credibility were not corroborated. This issue is nothing but a

restatement of the defendant’s first argument, which we have already concluded lacks

merit.



                 Next, the defendant argues it was error to allow the victim to testify she had

told a friend about the rapes two years after they occurred because two years is “well

beyond any parameters established by any Tennessee case regarding fresh complaint.”


         2
          Throu ghout the rema inder of his argum ents, the d efenda nt does provide fo ur citations ---to
T.C.A . § 24-1-2 07; T.C .A. § 63-2 3-107; State v. Lew is, 803 S.W.2d 260 (Tenn. Crim. App. 1990); and
Sum erall v. State , 580 S.W.2d 794 (Tenn. Crim. App. 1978)---but these citations merely represent
general authority that does not specifically support the arguments he makes.

                                                      4
The State concedes error apparently on this basis, but argues it was harmless because

it did not affect the outcome of the trial.



              As a general rule, evidence that an adult victim of a sexual crime

complained to a third party that the crime occurred is admissible under the fresh

complaint doctrine. See, e.g., State v. Kendricks, 891 S.W.2d 597 (Tenn. 1994). The

details of the complaint are generally not admissible, unless the adult victim’s credibility

has first been attacked. Id. at 606. In cases involving a child victim, however, neither the

fact the child victim complained to a third party nor the details of that complaint are

admissible into evidence under the fresh complaint doctrine. State v. Livingston, 907

S.W.2d 392, 395 (Tenn. 1995). This Court has held that the demarcation line between

“adult victim” and “child victim” is age thirteen. State v. Schaller, 975 S.W.2d 313, 320

(Tenn. Crim. App. 1997). But see State v. Robert J. Burton, Sr., No. 02C01-9507-CC-

00193, Weakley County (Tenn. Crim. App. filed June 10, 1996, at Knoxville)(treating a

thirteen-year-old victim of sexual abuse as a child rather than an adult and thus barring

fresh complaint evidence under Livingston).



              Even assuming that it was erroneous to admit J.W.’s “fresh complaint”

testimony, the defendant is not entitled to a reversal. A review of the record reveals that

defense counsel first introduced evidence that J.W. had told a third party about the rapes.

On cross-examination of J.W.’s mother, defense counsel asked her whether the first time

she became aware of the incidents was when J.W. told her in July 1996. In questions

that followed, defense counsel reiterated that J.W. had told her mother about the

incidents. This questioning occurred prior to the testimony about which the defendant

now complains, i.e., J.W.’s testimony that she told a friend the defendant had raped her.

The defendant complains of evidence that J.W. told a third party, her friend, about the



                                              5
rape incidents, but he invited that error by first eliciting similar testimony from another

third party, J.W.’s mother. Moreover, testimony that J.W. confided in a friend was merely

cumulative to the evidence defense counsel had already elicited from J.W.’s mother.

Because of this, J.W.’s testimony that she told her friend about the rapes did not affect

the result of the trial. Thus, any error in admitting this testimony was harmless and does

not warrant reversal. Tenn. R. Crim. P. 52(a); State v. James David Chatman, 01C01-

9501-CC-00024, Montgomery County (Tenn. Crim. App. filed March 25, 1996, at

Nashville)(harmless error where fresh complaint evidence was cumulative).



              The defendant next argues that the trial court erred in excluding the

testimony of Dr. Ira Lew on the basis his testimony was privileged. Dr. Lew, a licensed

psychiatrist, had treated J.W. in April 1994 and had written an evaluation report on May

11, 1994. In April 1997, the State subpoenaed Dr. Lew to testify at trial and provided the

defense with a copy of Dr. Lew’s report. Less than a week prior to trial, the defendant

also subpoenaed Dr. Lew. The State did not call Dr. Lew as a witness, but when the

defendant attempted to call him, the State invoked, on J.W.’s behalf, her statutory

privilege to confidential communications with a psychiatrist. See T.C.A. § 24-1-207

(Supp. 1997).



              Section 24-1-207 provides, in pertinent part:

       (a) Communications between a patient and a licensed physician when
       practicing as a psychiatrist in the course of and in connection with a
       therapeutic counseling relationship regardless of whether the therapy is
       individual, joint, or group, are privileged in proceedings before judicial and
       quasi-judicial tribunals. Neither the psychiatrist nor any member of the staff
       may testify or be compelled to testify as to such communications or
       otherwise reveal them in such proceedings without consent of the patient
       except:

              (1) In proceedings in which the patient raises the issue of the
       patient’s mental or emotional condition . . . .



                                             6
Id. Here, the defendant claims J.W. put her mental and emotional condition at issue by

testifying she did not report the rape incidents immediately after they occurred because

she was embarrassed, ashamed, and afraid. We disagree. Feeling emotion in response

to a traumatic event does not equate with putting one’s mental or emotional condition at

issue. Thus, contrary to the defendant’s argument, J.W . did not waive her privilege under

§ 24-1-207(a)(1), and the trial court did not err in excluding Dr. Lew’s testimony on this

basis. Moreover, even if the trial court had erred, any error would have been harmless,

as the testimony the defendant sought to elicit from Dr. Lew---such as the fact J.W. had

used alcohol, had been depressed, and had had disciplinary problems with her father---

would have been cumulative to other evidence already presented to the jury. See Tenn.

R. Crim. P. 52(a) (only error that affects the result of the trial warrants reversal).



              In the next two issues, the defendant argues the trial court erred in allowing

the State to impeach the credibility of defense witness Josh Woods, the victim’s twin

brother.   On direct examination, Josh testified that the defendant disciplined J.W.

because she would not “follow through” with her school work. Josh also testified that

J.W. would confide in him, but she never complained to him that the defendant had

sexually abused her. On cross-examination, the State asked Josh whether in October

1995, he had told Mark Jones, a social worker with the Tennessee Department of Human

Services (now called “Department of Children’s Services”), that the defendant had hit him

in the head four times, retrieved a knife from the kitchen, and hit him again when Josh

asked him for a cigarette. Over defense objection, Josh testified he told Mr. Jones he

was hit only once. The State asked Josh whether he had told Mr. Jones on other

occasions that the defendant had said he wanted to “get rid of” Josh, had fired a gun in

the family’s home and threatened to kill Josh, had threatened to send Josh to a juvenile

delinquent facility, and had threatened to “beat [his] head in.” Josh denied telling Mr.



                                              7
Jones these things. Instead, Josh testified he had a very good relationship with the

defendant and was not afraid the defendant would terminate their relationship if he

testified against him.



              To further impeach Josh Woods’ testimony, the State called Mr. Jones.

Defense counsel attempted to invoke, on Josh’s behalf, a statutory privilege to

confidential communications between clients and certified master social workers. See

T.C.A. § 63-23-107 (1997). Because Mr. Jones told the trial court he was not a certified

master social worker, the trial court allowed Mr. Jones to testify. On the witness stand,

Mr. Jones confirmed that Josh had reported incidents of physical abuse by the defendant.

Mr. Jones also testified that on different occasions, Josh had reported that the defendant

said he wanted “to get rid of” Josh, had fired a gun from the house and threatened to kill

him, and had threatened to send Josh to a juvenile delinquent facility and “beat his head

in.” The trial court accompanied this testimony with two limiting instructions to the jury,

telling them that this evidence was not substantive evidence these events occurred, but

rather was for the sole purpose of impeaching Josh’s testimony and testing his credibility.



              The defendant first takes issue with the trial court allowing the State to

cross-examine Josh about statements he made to Mr. Jones. He claims this evidence

was irrelevant because the incidents Josh reported occurred two years after the incidents

of rape and two years before trial. We disagree. “Bias is an important ground for

impeachment.” Tenn. R. Evid. 616 cmt. (citing Creeping Bear v. State, 113 Tenn. 322,

87 S.W. 653 (1905)). Evidence of bias is almost always relevant “because the jury, as

finder of fact and weigher of credibility, has historically been entitled to assess all

evidence which might bear on the accuracy and truth of a witness’ testimony.” United

States v. Abel, 469 U.S. 45, 52 (1984). Here, the State attempted to elicit testimony from



                                            8
Josh that he was afraid of the defendant because the defendant had threatened and

abused him. Through this line of questioning, the State attempted to show that because

Josh was afraid of losing a relationship with the defendant, his testimony was biased in

the defendant’s favor. Even though Josh’s testimony on direct examination was of little

probative value, the State was entitled to cross-examine him in an attempt to show bias.

The line of questioning pursued by the State helped accomplish this purpose and was,

therefore, proper evidence of impeachment under Tenn. R. Evid. 616.



              The defendant also argues that the trial court erred in allowing the State to

present the testimony of Mr. Jones to rebut Josh’s testimony. The defendant does not

dispute that bias may be proven by extrinsic evidence, as Tenn. R. Evid. 616 expressly

provides. Rather, the defendant argues that the statutory privilege provided for in T.C.A.

§ 63-23-107 “should apply for this social worker [Mr. Jones] as well as a <certified master

social worker’ as mentioned in the statute.” Section 63-23-107(a) expressly provides that

a client’s privilege to confidential communications only protects communications the client

has with either a “certified master social worker, or an independent practitioner of social

work holding a valid certificate or registration.” The record here fails to disclose that Mr.

Jones qualified as either. Accordingly, the trial court did not err in admitting Mr. Jones’

testimony.



              Next, the defendant argues that the trial court erred in allowing the State to

impeach the credibility of defense witness Paula Woods, the victim’s stepmother. On

cross-examination, the State asked Paula whether she had told Pam Breeden in June

1996 that the defendant (Paula’s husband) had abused her for three years. Over

defense objection, Paula initially denied telling Ms. Breeden that, but when asked again,

she stated, “We talked. I mean, I cannot - but I never recall saying that for three years.



                                             9
And it was not physical abuse we were talking of.” The trial court instructed the jury to

consider this evidence only as it related to credibility. On rebuttal, the State called Ms.

Breeden, a police officer, to the witness stand. Ms. Breeden confirmed that in June 1996,

Paula had told her that the defendant had abused her for three years. Ms. Breeden

further confirmed that Paula told her the defendant threatened to accuse Paula of

molesting Josh.



              Similar to his argument with regard to the impeachment of Josh Woods’

testimony, the defendant argues this evidence impeaching Paula Woods was irrelevant

because of the timing of when Paula confided in Ms. Breeden, i.e., that Paula disclosed

events of abuse to Ms. Breeden over two years after the events alleged in the indictment

and more than one year before trial. Again, we disagree. Rule 616 allowed the State to

attempt to elicit evidence that would show Paula’s testimony was biased in the

defendant’s favor because the defendant had abused her for several years and she was

afraid of him. Moreover, once Paula denied telling Ms. Breeden that the defendant had

abused her, the State could introduce Ms. Breeden’s testimony to contradict Paula’s

testimony and show that Paula’s testimony might have been influenced by her fear of the

defendant.    See Graham v. McReynolds, 88 Tenn. 240, 12 S.W. 547, 549

(1889)(extrinsic evidence of bias is properly admitted when the witness denies she was

threatened or her testimony influenced by a party’s actions). Contrary to the defendant’s

contention, we do not find the timing of when Paula confided in Ms. Breeden to destroy

the relevance of the bias shown.



              Next, the defendant argues that the trial court erred in failing to instruct the

jury to consider the fact that J.W. failed to report the rapes immediately after they

occurred. The record reflects that the defendant did not file a written request for such an



                                             10
instruction and instead orally requested an instruction, but then only after the jury had

retired to deliberate. See Tenn. R. Crim. P. 30(a) (providing that a party may make a

special request for jury instructions by filing a written request at or before the close of

evidence and that the court may, in its discretion, entertain special requests until the jury

retires to deliberate). Thus, we find no reversible error. See State v. Mackey, 638

S.W.2d 830, 836 (Tenn. Crim. App. 1982)(no error found where special request was not

made in writing).



              Finally, the defendant argues that he is entitled to a new trial because the

jury’s verdict was the result of passion, prejudice, or caprice. His argument is merely a

rewording of the defendant’s prior argument that the evidence was insufficient because

J.W.’s testimony was not corroborated by a “fresh complaint.” As we have already

determined, this issue lacks merit.



              In sum, we find no merit in the defendant’s arguments. Accordingly, the

judgment of the trial court is affirmed.




                                                  _______________________________
                                                  JOHN H. PEAY, Judge



CONCUR:



______________________________
JOSEPH M. TIPTON, Judge



______________________________
DAVID G. HAYES, Judge



                                             11
