      IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT JACKSON

                           MAY 1998 SESSION           FILED
                                                         July 24, 1998

                                                      Cecil Crowson, Jr.
                                                      Appellate C ourt Clerk
STATE OF TENNESSEE,      )
                         ) C.C.A. No. 02C01-9709-CC-00354
     Appellee,           )
                         ) Henry County
V.                       )
                         ) Honorable Julian P. Guinn, Judge
                         )
FRED BRYAN LINGENFELTER, ) (Rape, Sexual Battery, Incest (3 counts))
                         )
     Appellant.          )




FOR THE APPELLANT:                    FOR THE APPELLEE:

Guy T. Wilkinson                      John Knox Walkup
District Public Defender              Attorney General & Reporter

W. Jeffery Fagan                      Elizabeth T. Ryan
Assistant District Attorney General   Assistant Attorney General
117 North Forrest Avenue              425 Fifth Avenue North
P.O. Box 663                          2d Floor, Cordell Hull Building
Camden, TN 38320                      Nashville, TN 37243-0493

                                      Robert “Gus” Radford
                                      District Attorney General
                                      111 Church Street
                                      P.O. Box 686
                                      Huntingdon, TN 38344-0686

                                      Todd Rose
                                      Assistant District Attorney General
                                      Paris, TN 38242


OPINION FILED: ___________________


AFFIRMED

PAUL G. SUMMERS,
Judge
                                   OPINION



       The appellant, Fred B. Lingenfelter, was convicted by a jury of three

counts of incest, one count of sexual battery, and one count of rape. He was

sentenced concurrently to three years for each count of incest, one year for

sexual battery, and ten years for rape. He appeals, challenging the sufficiency of

the evidence and the propriety of certain evidentiary rulings. We affirm the

judgment of the trial court.



       The victim is the appellant’s stepdaughter. She was eighteen years old

when the appellant committed the offenses against her. The victim testified that

in October of 1995, the appellant entered her bedroom, pulled back her bed

covers, and began to undress her. The appellant told her that he wanted to

show her how much he loved her. When the victim said ”No,” the appellant

became angry. He went to his room and retrieved a gun. He returned naked.

He placed the gun to the victim’s vagina and threatened to shoot her if she did

not “show him that she loved him.” The appellant vaginally penetrated the victim.



       The victim testified that the appellant forced her to have sex in December

1995. After this incident, the victim tried to move out of her parent’s home.

When the victim discussed the move with the appellant, he put a gun to her

chest. The appellant told the victim if she was going to mess up her life, then he

was going to kill her. The victim testified that the appellant told her to make the

right decision and stay with him. The victim testified that she stayed with the

appellant and her mother so that the appellant would not shoot her.



       In January 1996, the appellant threatened the victim with a knife, stating

that she did not respect her body. The victim testified that the appellant placed

the knife close to her breast and vagina. The appellant was angry because the




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victim had been dating a fourteen-year-old boy. The victim testified that the

appellant did not want her to date “at all.”



       In late January, the appellant awoke the victim and told her that he was

going to take pictures of her. The appellant took pictures of the victim naked and

pictures depicting the appellant vaginally penetrating the victim. The appellant

threatened to show the pictures to the victim’s family if she told anyone about

them. The appellant had sexual intercourse with the victim without her consent

on three occasions in January 1996.



       In March 1996, the victim moved out of her parent’s house. She went to

live with her boyfriend, Mike. Shortly thereafter, the victim and her boyfriend

moved to the victim’s parents home because they had no place to go. They

shared the same bed. The appellant did not like Mike because he was married,

used drugs, and “the law was hunting him.” The appellant, however, found Mike

employment. In April, the victim reported the alleged rapes to the authorities and

sought a protective order against him.



       The appellant testified at trial. He admitted that he was the only father

that the victim had ever known. He admitted that he and the victim had sexual

intercourse, but he claimed that it was consensual. The appellant denied that he

had sexual intercourse with the victim in October, but admitted that they had

“foreplay.” The appellant admitted having sex with the victim in December, but

he claimed that it was consensual. He admitted that he had sexual intercourse

with the victim on three separate occasions in January. The appellant testified

that his sexual relationship with the victim grew out of a very close friendship. He

testified that the victim was “starting to look into sexual activity. And she made

the comment a couple of times about me being handsome and that she wished

she could find a boy that was at least active and strong and not just a pot-bellied




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piece of mush, which I’m not.” He testified that he was proud that a young lady

could look upon him as desirable.



          The appellant testified that the victim asked him if she was always

going to be a “fat, pudgy little kid.” He testified that he took photographs of the

victim nude to show her how beautiful she was, and that things just “got out of

hand.” He testified that he hid the pictures from his wife because “he was not

really proud of them.”



       Investigator William Gary Vandiver took a statement from the appellant.

Investigator Vandiver testified that the appellant stated that “things were done

that were not right,” that things started “out of curiosity on her part,” and that he

was “trying to be a good father and show her how things were done.” The

appellant stated that the victim consented to “everything that was done.”



       The victim’s mother testified that she and the appellant had been married

thirteen years. She testified that the appellant expressed an unusual interest in

being in the bathroom when the victim took a shower. Mrs. Lingenfelter testified

that she caught the appellant masturbating at the foot of the victim’s bed while

the victim slept. She told the appellant that the pictures that he took of the victim

looked like pornography, “photos that someone would take and look at later.”

She testified that the appellant responded “No, sir, that’s not why they were

taken.” He said that he had a good reason, but never explained it to his wife.



       The appellant challenges the sufficiency of the evidence. He also argues

that the court should have granted his motion for a judgment of acquittal at the

conclusion of the state’s case. These issues are without merit. In a sufficiency

of the evidence challenge, the relevant question on appellate review is whether,

after viewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime or



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crimes beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979);

State v. Duncan, 698 S.W.2d 63 (Tenn. 1985); T.R.A.P. 13(e).



       In Tennessee, great weight is given to the result reached by the jury in a

criminal trial. A jury verdict accredits the testimony of the state's witnesses and

resolves all conflicts in favor of the state. State v. Williams, 657 S.W.2d 405

(Tenn. 1983). Moreover, a guilty verdict replaces the presumption of innocence

enjoyed at trial with the presumption of guilt on appeal. State v. Grace, 493

S.W.2d 474 (Tenn. 1973). The appellant has the burden of overcoming the

presumption of guilt. Id. On appeal, the state is entitled to the strongest

legitimate view of the evidence and all reasonable inferences which may be

drawn therefrom. State v. Cabbage, 571 S.W.2d 832 (Tenn. 1978).



       The appellant essentially argues that the jury should have believed that

his sexual relationship with the victim was consensual. The appellant contends

that the jury should have discredited the testimony of the victim because it is

unbelievable that the victim would go shopping and bowling with the appellant

during the period of time that he was allegedly raping her. Whether or not the

victim consented to the sexual encounters with the appellant was a credibility

issue for the jury to decide. The jury chose to believe the victim. The state

presented evidence to establish each conviction during its case in chief.



       The appellant argues that the trial court erred in admitting photographs of

the victim. He argues that the probative value of the photographs is substantially

outweighed by the prejudicial effect because “the victim testified herself.” To be

admissible, the court must determine if the evidence is relevant. The evidence

must make the existence of a fact that is of consequence to the determination of

the action more probable or less probable than it would be without the evidence.

Tenn. Rule Evid. 401; see State v. McCary, 922 S.W.2d 511, 515 (Tenn. 1996);

State v. Banks, 564 S.W.2d 947 (Tenn. 1978). If relevant, the court must



                                         -5-
determine whether the probative value of the photographs is substantially

outweighed by the danger of unfair prejudice. Tenn. Rule Evid. 403; McCary, 922

S.W.2d at 515. These determinations and the admissibility of photographs rest

in the sound discretion of the trial judge. McCary, 922 S.W.2d at 515. W e will

not interfere with the discretion of the trial court unless it appears on the face of

the record that the court abused its discretion. Id.



       The appellant filed a motion in limine to prevent the state from introducing

the photographs into evidence. The court allowed the photographs, finding that

they were “pertinent” to proving the issues in the case. The state argues that

the appellant waived this issue by failing to object when the photographs were

introduced into evidence and because the appellant failed to include a transcript

of the hearing on his motion. We disagree. The record is sufficient for us to

address the issue.



       The pictures are relevant to the victim’s credibility which was a primary

issue at trial. The pictures corroborate the victim’s testimony that she and the

appellant had sexual intercourse. To an extent, the photographs are prejudicial

to the appellant. Unfair prejudice means an undue tendency to suggest a

decision on an improper basis. Neil P. Cohen et al., Tennessee Law of

Evidence § 403.5, at 153 (3d ed. 1995). The term includes evidence that

appeals to a jury’s sympathies, sense of horror, or instinct to punish. Id. It

includes evidence that is sensational, shocking, or repulsive. Id. The jury might

be inclined to punish the appellant for taking such lewd photographs of his young

stepdaughter. We cannot conclude, however, that the probative value of the

photographs is substantially outweighed by the danger of unfair prejudice. We

find no abuse of discretion. See State v. Leath, No. 01C01-9511-CC-00393

(Tenn. Crim. App. at Nashville, Feb. 10, 1998).




                                          -6-
       The appellant argues that the trial court erred in allowing the appellant’s

wife to testify that she “caught” the appellant masturbating at the foot of the

victim’s bed while the victim was asleep. He argues that any probative value is

substantially outweighed by the unfair prejudice of the evidence. On cross-

examination, the appellant’s wife testified that the appellant and the victim had a

normal relationship. The state sought to introduce Mrs. Lingenfelter’s testimony

to show that she knew of an incident that would suggest that the appellant’s

relationship with his stepdaughter was abnormal. The court allowed the

evidence. Relevant evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice. Tenn. Rule Evid.

403. Mrs. Lingenfelter’s testimony is relevant to issues of credibility, whether the

appellant had sexual intercourse or sexual contact with his stepdaughter, and

whether the intercourse was consensual. The evidence is prejudicial, but its

probative value is not substantially outweighed by the danger of unfair prejudice.

We find no abuse of discretion.



       The judgment of the trial court is affirmed.




                                               _____________________________
                                               PAUL G. SUMMERS, Judge


CONCUR:




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_____________________________
JOHN H. PEAY, Judge




_____________________________
THOMAS T. W OODALL, Judge




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