          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT NASHVILLE         FILED
                           NOVEMBER 1998 SESSION
                                                    December 10, 1998

                                                    Cecil W. Crowson
                                                   Appellate Court Clerk
STATE OF TENNESSEE,                  )
                                     )    NO. 01C01-9709-CC-00385
      Appellee,                      )
                                     )    HUMPHREYS COUNTY
VS.                                  )
                                     )    HON. ROBERT E. BURCH,
JEREMY AMIS,                         )    JUDGE
                                     )
      Appellant.                     )    (Aggravated Sexual Battery)



FOR THE APPELLANT:                        FOR THE APPELLEE:

SHIPP R. WEEMS                            JOHN KNOX WALKUP
District Public Defender                  Attorney General and Reporter

ROBERT H. STOVALL, JR. (At Trial)         CLINTON J. MORGAN
Assistant District Public Defender        Assistant Attorney General
P.O. Box 160                              Cordell Hull Building, 2nd Floor
Charlotte, TN 37036-0160                  425 Fifth Avenue North
                                          Nashville, TN 37243-0493
GREGORY D. SMITH (On Appeal)
1 Public Square, Suite 321                DAN MITCHUM ALSOBROOKS
Clarksville, TN 37040                     District Attorney General

                                          GEORGE SEXTON
                                          Assistant District Attorney General
                                          County Courthouse, 2nd Floor
                                          Court Square
                                          Waverly, TN 37185




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                           OPINION



       A Humphreys County jury found defendant guilty of aggravated sexual

battery of a twelve-year-old girl, a Class B felony. He was sentenced as a violent

100% offender to twelve years in the Department of Correction. Defendant raises

the following issues on appeal:

                 (1) whether the trial court erred in admitting the
                 testimony of two witnesses under the “excited
                 utterance” exception to the hearsay rule; and

                 (2) whether the sentence is excessive.

This Court finds no reversible error and affirms the trial court’s judgment.



                                            FACTS



       In October 1996, T.B.,1 age twelve, met defendant, age twenty-two, at the

home of an acquaintance. During the course of their meeting, they agreed to “be

boyfriend and girlfriend.” Defendant told T.B.’s friend, H.J., to leave the room. T.B.

and defendant were alone in the room for approximately an hour-and-a-half during

which time he tried to convince T.B. to have sex with him. After some time, she

finally “gave in” and, according to T.B.’s testimony, defendant sexually penetrated

her. It lasted about five minutes before T.B., crying, asked him to stop. The

defendant complied.

       When T.B. came out of the room upset, H.J. asked her what was wrong and

T.B. told her what happened. Another friend, J.C., testified that T.B. was upset and

crying when he arrived at the house a few minutes afterward. Upon leaving the

residence, and while still upset and crying, T.B. told J.C. that defendant did

something she did not want him to do.

       The defense presented no proof at trial.



                                   EXCITED UTTERANCE


       1
           It is this Court’s policy not to reveal the names of minor victims of sexual abuse.

                                                2
       Defendant objected to the admission of H.J.’s and J.C.’s testimony regarding

T.B.’s statements to them. The state argued that the statements were admissible

under the excited utterance exception to the hearsay rule. The trial court conducted

jury-out hearings with regard to this testimony and found the statements admissible

under Tenn. R. Evid. 803(2).



                                         A.

       Tenn. R. Evid. 803(2) excludes from the hearsay rule any “statement relating

to a startling event or condition made while the declarant was under the stress of

excitement caused by the event or condition.” In order for a statement to be

admissible under the excited utterance exception to the hearsay rule, the proponent

of the statement must establish: (1) the occurrence of a startling event or condition;

(2) the statement related to that startling event or condition; and (3) the declarant

was under the stress of excitement when the statement was made. See N. Cohen

et al., Tennessee Law of Evidence § 803(2).2 (3d ed. 1995). Furthermore, the

fact that a statement is in response to a question does not necessarily exclude it

from the excited utterance exception. State v. Smith, 857 S.W.2d 1, 9 (Tenn.

1993); see also State v. Reginald L. Edmonds, C.C.A. No. 02C01-9708-CC-00334,

Benton County (Tenn. Crim. App. filed August 25, 1998, at Jackson).



                                         B.

       We conclude that the trial court did not err in admitting the victim’s

statements to H.J. and J.C. as excited utterances under Tenn. R. Evid. 803(2). A

twenty-two-year-old man convinced a twelve-year-old girl to have sexual contact

with him. After a short time, she became understandably upset and asked him to

stop. When she left the room crying, H.J. asked her what was wrong. She

immediately replied that she had sex with the defendant. Shortly thereafter, while

still upset and crying, T.B. made a similar statement to J.C.

       This sexual activity for T.B., a twelve-year-old girl, certainly qualified as a

startling event; her statements to H.J. and J.C. related to that event; and, even


                                          3
assuming the sexual activity occurred early within the 1-1/2 hour period T.B. and the

defendant were alone, she was obviously distressed by the event and was still

under the stress of the event when she told H.J. and J.C. what occurred. The

statements were admissible.

         This issue is without merit.



                                    SENTENCING



         The trial court applied three enhancing factors and one mitigating factor to

defendant’s conduct. The result was the maximum twelve-year sentence to be

served as a violent offender at 100% in the Department of Correction. Defendant

asserts that the sentence is excessive.



                                           A.

         Firstly, we note the pre-sentence report is not a part of the record. We must,

therefore, presume that the trial court’s rulings are supported by the evidence.

State v. Jerry Hilbert Carter, C.C.A. No. 03C01-9603-CC-00102, Greene County

(Tenn. Crim. App. filed March 4, 1997, at Knoxville); see also State v. Oody, 823

S.W.2d 554, 559 (Tenn. Crim. App. 1991). Nevertheless, we elect to address the

issue.



                                           B.

         Our review of the sentence imposed by the trial court is de novo with a

presumption that the determinations of the trial court are correct. Tenn. Code Ann.

§ 40-35-401(d); State v. Byrd, 861 S.W.2d 377, 379 (Tenn. Crim. App. 1993). The

presumption of correctness which attaches to the trial court's action is conditioned

upon an affirmative showing in the record that the trial court considered the

sentencing principles and all relevant facts and circumstances. State v. Ashby, 823

S.W.2d 166, 169 (Tenn 1991).

         In this instance, it is clear from the record that the trial judge properly


                                           4
considered all appropriate sentencing principles and relevant facts and

circumstances. As such, the presumption of correctness attaches to the trial court’s

determinations.



                                           C.

         At sentencing, the state presented evidence of defendant’s criminal history,

argued for the application of three enhancing factors, and recommended the

maximum sentence. The defense put on no proof, but argued for the application

of three mitigating factors and requested a mid-range sentence of nine years.

         The trial court recited and reviewed all sentencing principles. It then found

that three enhancing factors applied: (1) the defendant has a previous history of

criminal convictions or criminal behavior in addition to those necessary to establish

the appropriate range;2 (2) the defendant has a previous history of unwillingness to

comply with the conditions of release in the community; and (3) the felony was

committed while on probation. Tenn. Code Ann. § 40-35-114 (1), (8), (13). We

presume these factors are applicable in the absence of the pre-sentence report.

         The trial court refused to find that defendant’s youth caused him to lack

substantial judgment in committing the crime. See Tenn. Code Ann. § 40-35-

113(6). It also found the proof contrary to the assertion that the crime was

committed under such unusual circumstances that it was unlikely that a sustained

intent to violate the law motivated the criminal conduct. See Tenn. Code Ann. § 40-

35-113(11). These findings are supported by the record.

         The trial court did, however, find that the defendant’s conduct neither caused

nor threatened serious bodily injury. See Tenn. Code Ann. § 40-35-113(1). But,

this mitigating factor was not given significant weight. The weight to be given each

factor is left to the sound discretion of the trial court. State v. Moss, 727 S.W.2d

229, 238 (Tenn. 1986); State v. Leggs, 955 S.W.2d 845, 848 (Tenn. Crim. App.

1997).


         2
         The trial court recited prior convictions for felony theft, misdemeanor theft,
passing worthless checks, contributing to the delinquency of a minor, disorderly conduct
and traffic offenses.

                                            5
                                        D.

      In reviewing the sentence de novo with the attached presumption of

correctness, this Court concludes that the trial court properly applied both

enhancement and mitigating factors and properly evaluated the relevant facts and

circumstances in conjunction with the sentencing principles. Accordingly, this court

will not disturb the twelve-year sentence received by the defendant.



                                  CONCLUSION



       Based upon the foregoing, we AFFIRM the judgment of the trial court.




                                               ____________________________
                                                JOE G. RILEY, JUDGE




CONCUR:




____________________________
PAUL G. SUMMERS, JUDGE




____________________________
L.T. LAFFERTY, SENIOR JUDGE




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