         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT KNOXVILLE         FILED
                          AUGUST 1998 SESSION          January 8, 1999

                                                     Cecil Crowson, Jr.
                                                      Appellate C ourt Clerk
STATE OF TENNESSEE,                   )
                                      )    NO. 03C01-9708-CC-00367
      Appellee,                       )
                                      )    ANDERSON COUNTY
VS.                                   )
                                      )    HON. JAMES B. SCOTT, JR.,
JEFFREY R. ALLEN and                  )    JUDGE
 JENNINGS MICHAEL COEN,               )
                                      )
      Appellants.                     )    (Attempted Rape)



FOR THE APPELLANTS:                        FOR THE APPELLEE:

CHRISTOPHER VAN RIPER                      JOHN KNOX WALKUP
(Attorney for Appellant Allen)             Attorney General and Reporter
300 Market Street, Suite 200
Clinton, TN 37716                          MICHAEL J. FAHEY, II
                                           Assistant Attorney General
NANCY MEYER                                Cordell Hull Building, 2nd Floor
(Attorney for Appellant Coen)              425 Fifth Avenue North
Asst. District Public Defender             Nashville, TN 37243-0493
101 S. Main St., Suite 450
Clinton, TN 37716                          JAMES N. RAMSEY
                                           District Attorney General

                                           JAN HICKS
                                           Assistant District Attorney General
                                           127 Anderson County Courthouse
                                           Clinton, TN 37716




OPINION FILED:



REVERSED AND REMANDED



JOE G. RILEY,
JUDGE
                                     OPINION



       The defendants, Jeffrey R. Allen and Jennings Michael Coen, appeal as

of right their convictions of attempted rape by an Anderson County jury. Allen

was sentenced to ten (10) years as a Range III, persistent offender. Coen was

sentenced to four (4) years as a Range I, standard offender. On appeal, the

appellants raise the following issues for review:


              (1) whether the proof adduced at trial was sufficient to
              sustain the attempted rape convictions;

              (2) whether the defendants were denied exculpatory
              evidence;

              (3) whether the trial court erred in denying a new trial
              based on newly discovered evidence;

              (4) whether the trial court properly instructed the jury
              on the lesser offense of attempted rape;

              (5) whether the trial court erred instructing the jury as
              to the release eligibility date for Allen;

              (6) whether Allen was properly classified as a
              persistent offender; and

              (7) whether facsimiles of certified judgments were
              properly admitted in Allen’s sentencing hearing.


Upon an extensive review of the record, we REVERSE the judgment of the trial

court and REMAND for a new trial.



                                          I.



       The victim lived in a duplex apartment. Her neighbor, Jerry Wilcox, invited

co-workers from a local restaurant to his apartment for a party on August 23,

1994. One of the defendants, Jennings Michael “Mike” Coen, was a co-worker

of Wilcox and attended the party with his friend Jeffrey Allen, the other

defendant. The victim arrived at the party at approximately 1:00 a.m.



       The party was noisy, and neighbors called the police several times to

                                          2
complain. After several visits by officers, the party ended. Everyone left the

apartment except for Wilcox, the victim, and a friend of Wilcox’s, Brian Fisher.

Wilcox and Fisher decided to buy more beer. They left the victim alone in the

apartment. As he was leaving, Wilcox noticed the defendants standing by

Coen’s car.



       According to the victim, the defendants then re-entered the apartment and

accosted the victim. They forced her into Wilcox’s bedroom, and while Allen

held her down, Coen removed her shorts and underwear. The victim informed

the defendants that she was menstruating, and Coen responded by pulling out

the victim’s tampon and throwing it across the room. Allen placed his hand over

the victim’s mouth in order to quiet her cries for help. The victim testified she bit

Allen’s hand in an attempt to free herself. The victim further testified that both of

the defendants attempted to force her to perform oral sex, and that both

penetrated her vagina and anus with their fingers.



       When Wilcox returned, he noticed the door to his bedroom was closed.

Initially thinking the defendants and the victim were engaged in a voluntary

sexual encounter, Wilcox did nothing. However, shortly thereafter, W ilcox heard

the victim scream. He forced open the door to his bedroom and found Allen

sitting on the floor, holding his hand over the victim’s mouth. Coen, who had

been blocking the door, stated to Wilcox, “We’re going to teach the whore a

lesson.”



       Wilcox retreated to the kitchen to enlist the aid of Fisher. Wilcox returned

to the bedroom with Fisher, again having to force it open. Wilcox told the

defendants to leave, which they did. On their way out, the defendants instructed

Wilcox to remain quiet about the incident.



       A neighbor had heard the earlier screaming and called the police. Shortly



                                          3
after the defendants left, police officers arrived at the apartment.



       The medical evidence offered by the state established the presence of

bruising on the victim’s inner thigh. The bruising was probably caused within two

(2) days of the examination. The medical examination did not reveal any

evidence of trauma to the vagina or anus.



       The defense presented the testimony of Coen and several other persons

present at Wilcox’s apartment. Tressa Vowell and Aaron House testified that the

alleged victim was “very drunk” and “very flirtatious” that night. They described

her as wearing “short shorts” and a “tank top” that exposed her breasts. The

witnesses testified that the alleged victim was “flirting with, touching, whispering

things” to males in the apartment. Vowell further testified that she saw bruises

on the victim’s arms and inner thighs that night prior to the alleged sexual attack.

Both Vowell and House testified they remained outside the apartment until

Wilcox returned and heard nothing unusual from inside. Bronson Woods,

another party attendee, testified essentially the same as Vowell and House.



       Defendant Coen testified that after everyone else left the apartment, the

victim waved him into Wilcox’s bedroom where she was kissing Allen. The victim

advised Coen she had a tampon. When Coen removed it, the victim began to

scream that she was being raped. Coen stated he and Allen panicked, and Allen

covered the victim’s mouth. Allen was trapped under the victim at this time. It

was at this time that Wilcox entered the room.



       The jury was charged as to the indicted offense of aggravated rape and

the lesser offenses of attempted aggravated rape, rape, attempted rape and

assault. A guilty verdict was returned for attempted rape.



                                          II.



                                          4
       The defendants initially challenge the sufficiency of the evidence. They

contend no rational trier of fact could have found them guilty of attempted rape

as there was no evidence presented at trial that they were cooperating in an

unlawful attempt to penetrate the victim.



       In determining the sufficiency of the evidence, this Court does not reweigh

or reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.

1978). A jury verdict approved by the trial judge accredits the state's witnesses

and resolves all conflicts in favor of the state. State v. Bigbee, 885 S.W.2d 797,

803 (Tenn. 1994); State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). On appeal,

the state is entitled to the strongest legitimate view of the evidence and all

legitimate or reasonable inferences which may be drawn therefrom. Id. This

Court will not disturb a verdict of guilt due to the sufficiency of the evidence

unless the defendant demonstrates that the facts contained in the record and the

inferences which may be drawn therefrom are insufficient, as a matter of law, for

a rational trier of fact to find the accused guilty beyond a reasonable doubt.

State v. Brewer, 932 S.W.2d 1, 19 (Tenn. Crim. App. 1996). Accordingly, it is

the appellate court's duty to affirm the conviction if the evidence, viewed under

these standards, was sufficient for any rational trier of fact to have found the

essential elements of the offense beyond a reasonable doubt. Tenn. R. App. P.

13(e); Jackson v. Virginia, 443 U.S. 307, 317, 99 S.Ct. 2781, 2789, 61 L. Ed.2d

560 (1979); State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994).



       In order to convict the defendants of attempted rape, the state was

required to prove that the defendants acted with an intent to commit rape and

committed a substantial step towards the unlawful sexual penetration of the

victim through the use of force. Tenn. Code Ann. §§ 39-12-101(a)(3); 39-13-

503(a)(1). Whether a defendant has committed a “substantial step” depends on

the circumstances surrounding the offense. See State v. Reeves, 916 S.W.2d



                                          5
909, 912 (Tenn. 1996).



       In a light most favorable to the state, the evidence showed the defendants

held the victim down, stripped her from the waist down, and then removed her

tampon. According to the victim, both attempted to force her to perform oral sex.

This testimony was sufficient to support the conviction for attempted rape as to

both defendants. There was also testimony from the victim that the defendants

penetrated her vaginally and anally. It is no defense to a prosecution for criminal

attempt that the offense attempted was actually committed. Tenn. Code Ann. §

39-12-101(c).



       Although the testimony presented by the defense was inconsistent with an

attempted rape, it was for the jury to determine the credibility of the witnesses.

In a light most favorable to the state, the evidence was sufficient to support the

convictions.



       This issue is without merit.



                                         III.



                                         A.



       The defendants’ second issue relates to their pre-trial motion for the

disclosure of any exculpatory information contained in records of the victim’s

treatment in mental health institutions. The records were subpoenaed by the

trial court. The trial court placed the records under seal, reviewed them in

camera, and found they could contain exculpatory information. The trial court

asked the prosecuting attorney to review the records in detail for exculpatory

evidence since the trial court did not have sufficient knowledge of the facts to

make a proper determination of relevancy.


                                         6
       The prosecuting attorney did not comply with the trial court’s request,

subsequently citing her concern for the victim’s privacy. Defense counsel

continued to request exculpatory evidence in these records at subsequent

hearings. The prosecuting attorney never examined them. As a result, the

records remained under seal and were never made available to defense counsel.



                                          B.



       Records of patients in mental health facilities are to be kept confidential,

subject to certain exceptions. Tenn. Code Ann. § 33-3-104(10)(A)(Supp. 1998).

One exception allows a court to order disclosure where the failure to make

disclosure would be contrary to public interest or detrimental to either party to the

proceedings. Tenn. Code Ann. § 33-3-104(10)(A)(iv)(Supp. 1998). Due process

requires the disclosure of any exculpatory evidence that might be contained in

such records. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d

215 (1963).



       Before an accused is entitled to relief for the state’s failure to reveal

evidence, the accused must establish several prerequisites: (a) the prosecution

must have suppressed the evidence; (b) the evidence suppressed must have

been favorable to the accused; and (c) the evidence must have been material.

See United States v. Bagley, 473 U.S. 667, 674-75, 105 S. Ct. 3375, 3379-80,

87 L. Ed. 2d 481, 489 (1985); Brady v. Maryland, 373 U.S. at 87, 83 S.Ct. at

1196-97; State v. Edgin, 902 S.W.2d 387, 390 (Tenn. 1995). Evidence is

considered material only if there is a reasonable probability that, had the

evidence been disclosed to the defense, the results of the proceeding would

have been different. Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131

L.Ed.2d 490 (1995); State v. Edgin, 902 S.W.2d at 390.



                                          C.



                                          7
       We have examined the records under seal and conclude they contain

exculpatory evidence of an impeaching nature that is favorable to the

defendants. See United States v. Bagley, 473 U.S. at 674, 105 S.Ct. at 3379, 87

L.Ed.2d at 489. The medical and psychological history of the victim was relevant

to the defense raised by the defendants. The facts of this case as well as the

nature of the records are very similar to those in State v. Brown, 552 S.W.2d 383

(Tenn. 1977). Just as in Brown, the defendants were entitled to see the records.



       Some of the medical records were subpoenaed from private sources.

However, one source, Lakeshore Mental Health Institute, is a state facility. See

Tenn. Code Ann. §§ 4-3-1603(a); 33-2-101(a)(1). Records from this agency

contain exculpatory information. Ordinarily, the trial court has the obligation to

examine the records of private agencies. See State v. Fox, 733 S.W.2d 116,

118 (Tenn. Crim. App. 1987). However, the District Attorney General represents

the state and Lakeshore is a state agency. Brown, 552 S.W.2d at 385. Thus,

the state had a responsibility to examine those records for any exculpatory

evidence upon being requested by the trial court to do so. Id.; see also Foster v.

State, 942 S.W.2d 548, 550 (Tenn. Crim. App. 1996).



       For the above reason, this Court need not address the issue of whether

the trial court had the authority to request that the District Attorney General’s

office review the records of private institutions for exculpatory evidence once

they were subpoenaed and were within the jurisdiction of the court. Regardless,

the trial court could properly request the District Attorney General’s office to

review the records of the state institution for exculpatory information.



       A “hear no evil, see no evil” attitude is inconsistent with prosecutorial

responsibilities. As the United States Supreme Court noted in Kyles v. Whitley,


              . . . a prosecutor anxious about tacking too close to

                                          8
             the wind will disclose a favorable piece of evidence.
             See Agurs, 427 U.S. at 108, 96 S.Ct. 2392, 49
             L.Ed.2d 342 (“[T]he prudent prosecutor will resolve
             doubtful questions in favor of disclosure”). This is as
             it should be. Such disclosure will serve to justify trust
             in the prosecutor as “the representative . . . of a
             sovereignty . . . whose interest . . . in a criminal
             prosecution is not that it shall win a case, but that
             justice shall be done.” Berger v. United States, 295
             U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed.2d 1314 (1935).
             And it will tend to preserve the criminal trial, as
             distinct from the prosecutor’s private deliberations, as
             the chosen forum for ascertaining the truth about
             criminal accusations. See Rose v. Clark, 478 U.S.
             570, 577-78, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986);
             Estes v. Texas, 381 U.S. 532, 540, 85 S.Ct. 1628, 14
             L.Ed.2d 543 (1965); United States v. Leon, 468 U.S.
             897, 900-901, 104 S.Ct. 3405, 82 L.Ed.2d 677
             (1984)(recognizing general goal of establishing
             “procedures under which criminal defendants are
             ‘acquitted or convicted on the basis of all the
             evidence which exposes the truth’”(quoting Alderman
             v. United States, 394 U.S. 165, 175, 89 S.Ct. 961, 22
             L.Ed.2d 176 (1969)). The prudence of a careful
             prosecutor should not therefore be discouraged.


514 U.S. at 439-440, 115 S.Ct. at 1568-1569, 131 L.Ed.2d at 509.



      At the very least the District Attorney General’s office should have

examined the Lakeshore records and revealed exculpatory evidence. Likewise,

the trial court should have revealed to defense counsel the Lakeshore and other

records subpoenaed as their impeaching character was evident. The

defendants were in a “catch-22.” The defendants did everything possible to

secure this exculpatory evidence but were unsuccessful.



                                        D.



      Although the evidence was sufficient to support the convictions when

viewed in a light most favorable to the state, we note the case primarily turned on

the credibility of the victim. The medical evidence was inconclusive. According

to the testimony, the bruising could have been caused up to two (2) days before

the examination. Furthermore, there was no medical evidence of trauma to the

vagina or anus. The jury was charged as to aggravated rape, the elements of

                                         9
which were established by the testimony of the victim. The jury was also

charged as to the lesser offenses of attempted aggravated rape, rape, attempted

rape, and assault. Yet, the jury rejected the first three charges and found the

defendants guilty of attempted rape.



       We conclude the reports withheld from the defendants were material.

Admittedly, we do not know if the jury would have reached a different result with

the additional evidence. However, the defendants have shown a reasonable

probability that, had this evidence been disclosed, the results of their trial would

have been different. See Kyles v. Whitley, 514 U.S. at 419; 115 S.Ct. at 1566,

131 L.Ed.2d at 518; State v. Edgin, 902 S.W.2d at 390.



       The trial judge predicted before the trial that these records might contain

exculpatory evidence which could lead to a reversal of a conviction. The trial

judge was correct. The defendants were deprived of evidence material to their

defense. Accordingly, we must reverse and remand for a new trial on the charge

of attempted rape. All records currently under seal shall be disclosed to the

defendants.



                                         IV.



       In their next issue, the defendants contend the trial court erred in failing to

grant a new trial based on newly discovered evidence. We agree.



       Following the trial of this case, but before the hearing on the motion for

new trial, the victim appeared in court for a preliminary hearing on a DUI charge.

At that hearing, the victim’s attorney stated to the court that the victim has had

“no less than six specific diagnoses of a mental health nature,” to include

psychotic behavior. At the hearing on the motion for new trial, defendants

argued this newly discovered evidence warranted a new trial. The trial court



                                         10
disagreed, stating:


             But basically I understand what you are saying to me
             as it relates to this victim, who comes in here with a
             mental profile. As to whether or not that victim’s
             mental profile should be made available so you could
             cross-examine her about maybe any delusions or
             hallucinations or any other reports or anything like
             that. I don’t believe it was available in her file - those
             things are under seal. The court of appeals can look
             at them.



      The issues of failure to divulge exculpatory evidence and newly

discovered evidence are intertwined. The newly discovered evidence is a part of

the same exculpatory evidence sought by the defendants pre-trial. The newly

discovered evidence relating to the psychiatric and mental health history of the

victim was contained in the records under seal.



       In seeking a new trial based on newly discovered evidence, there must be

a showing that defendant and his counsel exercised reasonable diligence in

attempting to discover the evidence, and that neither the defendant nor his

counsel had knowledge of the alleged newly discovered evidence prior to trial.

State v. Nichols, 877 S.W.2d 722, 737 (Tenn. 1994); State v. Singleton, 853

S.W.2d 490, 496 (Tenn. 1993). In addition, there must also be a showing of the

materiality of the testimony, and the trial court must determine whether the result

of the trial would likely be changed if the evidence were produced. Nichols, 877

S.W.2d at 737; Singleton, 853 S.W.2d at 496. The granting or refusal of a new

trial on the basis of newly discovered evidence rests within the sound discretion

of the trial court. State v. Walker, 910 S.W.2d 381, 395 (Tenn. 1995); State v.

Parchman, 973 S.W.2d 607, 610 (Tenn. Crim. App. 1987).



      Again, we find the defendants are entitled to a new trial. The defendants

exercised reasonable diligence in seeking this information, but it was denied

them. The case must be remanded for a new trial.




                                         11
                                         V.



       In their fourth issue, the defendants contend the trial court erred in

charging the jury, sua sponte, on the lesser offenses of attempt to commit

aggravated rape and attempt to commit rape.



       A trial judge has a mandatory duty to charge a lesser included offense,

whether requested or not, if the facts so justify. Tenn. Code Ann. § 40-18-

110(a); State v. Jones, 889 S.W.2d 225, 230 (Tenn. Crim. App. 1994). A

defendant can be convicted of “an offense necessarily included in the offense

charged or of an attempt to commit either the offense charged or an offense

necessarily included therein if the attempt is an offense." Tenn. R. Crim. P. 31(c);

State v. Dale Nolan, C.C.A. No. 01C01-9511-CC-00387, Sequatchie County

(Tenn. Crim. App. filed as corrected July 23, 1997, at Nashville).



       The attack upon charging attempted aggravated rape is without merit

since the defendants were not convicted of that offense; thus, they could not

have been prejudiced.



       As to attempted rape, we first note that rape is a proper lesser included

offense of the indicted charge of aggravated rape. Thus, pursuant to Tenn. R.

Crim. P. 31(c), attempted rape may be charged if there is evidence to support a

conviction. We have previously determined the evidence was sufficient to

support the guilty verdict for attempted rape. Thus, attempted rape was properly

charged to the jury.



       This issue is without merit.



                                         VI.




                                         12
       The last three issues presented for review are raised only by the

defendant, Jeffrey Allen. First, the defendant alleges the trial court erroneously

instructed the jury as to range of punishment and minimum release eligibility

dates. Second, the defendant contends the trial court improperly sentenced him

as a Range III, persistent offender. Third, the defendant claims the trial court

erred allowing the state to present facsimiles of certified judgments as proof of

his persistent offender status. Although the issues are pretermitted by our

remand for a new trial, we will address them in the event of an appeal to the

Tennessee Supreme Court.



                                         A.



       Defendant Allen complains the trial court erroneously instructed the jury

as to the range of punishment and minimum release eligibility dates. The trial

court instructed the jury as follows:


              1. Aggravated rape. A penitentiary sentence in the
              penitentiary for fifteen to twenty-five years, and a fine
              may be imposed not to exceed $50,000.

              2. Attempt to commit aggravated rape. A
              penitentiary sentence of eight to twelve years, and a
              fine may be imposed up to $25,000.

              3. Rape. A penitentiary sentence of eight to twelve
              years, and a fine may be imposed up to $25,000.

              4. Criminal attempt to commit rape. A penitentiary
              sentence of three to six years, and a fine may be
              imposed up to $10,000.

              5. Assault, Part A. A jail sentence may be imposed
              on Assault, Part A, of eleven months and twenty-nine
              days, and a fine may be imposed up to $2,500.

              6. Assault, Part B. A jail sentence may be imposed of
              up to six months, and a fine may be imposed not to
              exceed $500.

              You are further informed that the minimum number of
              years a person sentenced to imprisonment for these
              offenses . . . must serve before reaching the earliest
              release eligibility date is:

              1. Aggravated rape: 4.5 years.

                                         13
              2. Criminal attempt to commit aggravated rape: 2.4
              years.

              3. Rape: 2.4 years.

              4. Criminal attempt to commit rape: 2.4 years.

              5. Assault, Part A: Up to seventy-five percent of
              eleven months and twenty-nine days in jail, or two
              hundred, seventy-three days in jail.

              6. Part B. Up to seventy-five percent of one
              hundred, eighty days, or one hundred, thirty-five days
              in jail.


                            1. Range of Punishment



       Defendant Allen was convicted of attempted rape. The trial court’s

instruction regarding the range of punishment for that crime was three (3) to six

(6) years in the penitentiary with a fine up to $10,000. The defendant was

actually facing a much greater sentence as the prosecution had filed a notice to

seek enhanced punishment as a persistent offender based upon Allen’s prior

felony convictions. See Tenn. Code Ann. § 40-35-202. Allen was eventually

found to be a persistent offender, a status which raised the range of possible

punishment to not less than ten (10) years up to fifteen (15) years. Tenn. Code

Ann. § 40-35-112(c)(3).



       The Tennessee Supreme Court has held that whatever rights or benefits

the legislature intended for criminal defendants when it passed Tenn. Code Ann.

§ 40-35-201(b)(repealed 1998), would be lost if the defendant were sentenced to

a punishment greater than what the jury finding guilt was instructed would be

imposed. State v. Cook, 816 S.W.2d 322, 327 (Tenn. 1991). The Court held

that to deny a defendant this statutory right constitutes prejudice, rendering the

error reversible.



       Thus, the trial court should have instructed the jury that the range of

punishment was three (3) to fifteen (15) years.



                                         14
                            2. Release Eligibility Date



       Similarly, defendant Allen complains the trial court erred in instructing the

jury that the minimum release eligibility date for attempted rape is 2.4 years.

Actually, attempted rape is a Class C felony with a minimum release eligibility

date of 0.9 years less other authorized credits.



       Regardless of the trial court’s error, we find Allen suffered no prejudice in

this regard. Allen was convicted of and sentenced to the lowest felony offered to

the jury. The jury was correctly instructed as to the proper misdemeanor

sentences and rejected them. As the defendant faced a possible release date

earlier than the jury was instructed, we find that he is unable to show prejudice

as a result of the instruction. Tenn. R. App. P. 36(b).



                                         B.



       Defendant Allen further contends the trial court erred in classifying him as

a Range III, persistent offender. Specifically, he contends the trial court

improperly based his persistent offender status on a Giles County theft charge

which was adjudicated after the instant offense was committed.



       The defendant is correct, and the state concedes, that the trial court could

not use his subsequent Giles County conviction to categorize him as a persistent

offender. A “prior conviction” refers to a conviction that has been adjudicated

prior to the commission of the offense for which the sentence is to be imposed.

Tenn. Code Ann. § 40-35-107(b)(1); State v. Blouvett, 904 S.W.2d 111, 113

(Tenn. 1995).



       It is clear the prosecutor intended that the subsequent conviction only be

considered for enhancement purposes under Tenn. Code Ann. § 40-35-114.



                                         15
Use of the conviction for that purpose would be entirely proper. This Court has

previously held that a sentencing court can consider criminal convictions or any

other criminal behavior which occurred prior to the sentencing hearing as

constituting a previous history of criminal convictions or criminal behavior,

regardless of whether the convictions or behavior occurred before or after the

criminal conduct under consideration. State v. Burl Jarrett, C.C.A. No. 02C01-

9710-CC-00418, Hardeman County (Tenn. Crim. App. filed August 21, 1998, at

Jackson); State v. Chad Douglas Poole, C.C.A. No. 02C01-9506-CC-00178,

Hardeman County (Tenn. Crim. App. filed January 31, 1996, at Jackson),

affirmed on other grounds, 945 S.W.2d 93 (Tenn. 1997).



       Firstly, we are unable to definitely determine from the record whether the

trial court applied the Giles County conviction to establish the persistent offender

status. Although it appeared the trial court was adopting the state’s argument,

the trial court at one point stated “it’s not required in the class 3 that this offense

actually have been committed prior to conviction.”



       Secondly, although defendant had seven other prior felony convictions,

three of these were committed on the same date and two others were likewise

committed on the same date. The state was required to prove five or more prior

felony convictions; however, felonies committed as part of a single course of

conduct within twenty-four hours constitute one conviction unless they involve

bodily injury or threatened bodily injury. Tenn. Code Ann. § 40-35-107(a)(1),

(b)(4). All prior offenses were property crimes; thus, the state did not establish

five prior felonies. The state did establish four prior felonies, qualifying

defendant as a Range II, multiple offender.



       Should defendant be convicted upon retrial, the defendant can be

sentenced as a Range III, persistent offender, only if the state properly

establishes the prior convictions in accordance with the dictates of Tenn. Code



                                           16
Ann. § 40-35-107.



                                        C.



       Defendant Allen’s third sentencing issue is whether the trial court

improperly admitted unverified facsimile copies of his prior convictions. The

convictions were also included in the pre-sentence report prepared by the

probation officer.



       Where summary information about the qualifying convictions was

contained in the presentence report but was not otherwise proven by certified

copies of conviction records or otherwise, we have held that the state has proven

range enhancement beyond a reasonable doubt, "'absent a showing that the

report is based on unreliable sources or is otherwise inaccurate.'" State v.

Anthony D. Hines, C.C.A. No. 01C01-9406-CC-00189, Montgomery County

(Tenn. Crim. App. filed May 25, 1995, at Nashville). We also note the probation

officer testified as to the numerous prior convictions. Their accuracy was not

challenged.



       This issue is without merit.



       For the reasons outlined in the opinion above, the judgment of the trial

court is REVERSED and the case REMANDED for a new trial on the charge of

attempted rape.



                                                 _________________________
                                                 JOE G. RILEY, JUDGE


CONCUR:




___________________________

                                        17
JOSEPH M. TIPTON, JUDGE




___________________________
THOMAS T. WOODALL, JUDGE




                              18
              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                    AT KNOXVILLE                    FILED
                        AUGUST 1998 SESSION
                                                                      January 8, 1999

                                                                    Cecil Crowson, Jr.
                                                                    Appellate C ourt Clerk
STATE OF TENNESSEE,                )
                            )
       Appellee,            )      No. 03C01-9708-CC-00367
                            )
                            )      Anderson County
v.                          )
                            )       Honorable James B. Scott, Judge
                            )
JEFFREY R. ALLEN and               )       (Attempted Rape)
JENNINGS MICHAEL COEN,             )
                     )
     Appellants.     )



                                 CONCURRING OPINION



       I concur in the results reached and most of the reasoning used in the majority

opinion. However, I question its implication that the district attorney general is

authorized to review medical/mental health records regarding a criminal victim’s

treatment in a state mental health facility without having either prior authorization from

the trial court under T.C.A. § 33-3-104(10)(A)(iv) or prior consent of the victim. The

confidentiality provided by the statute is for the benefit of the mental health patient.

There is no exception for prosecutors when the patient becomes a victim of crime.



       Also, I believe that the cases upon which the majority opinion relies do not

authorize the prosecutor to review a victim’s records that are otherwise privileged by

law. In Foster v. State, 942 S.W.2d 548, 550 (Tenn. Crim. App. 1996), this court noted

that a prosecutor has a duty to search reasonable sources for materially exculpatory

information. However, it said nothing about the prosecutor being allowed to invade

confidential records.




                                             19
       In State v. Brown, 552 S.W.2d 383 (Tenn. Crim. App. 1977), our supreme court

dealt with the then existing statutory privilege regarding communication between

psychiatrist and patient that allowed disclosure in a criminal case if the mental condition

of the patient was an issue or the trial court determined that the interests of justice

required that the privilege be withheld. The state’s primary witness had been

hospitalized for an extended period of time in a state mental health facility. The issue

related to whether the defendant was entitled to discovery of those records. The

records reflected that she had been treated repeatedly for emotional disturbances of

psychotic proportions.



       First, the supreme court determined that the statutory exceptions to the privilege

had been met, partly because the conviction rested upon the testimony of the witness

and her twelve-year-old grandson, and her mental condition would be an issue. It noted

that the psychiatric records had impeachment value. 552 S.W.2d at 385. Then, the

court discussed various options that the trial court had once the defendant’s discovery

motion was presented. Id. at 385-86. Finally, it stated that the trial court should

conduct an in camera inspection of the requested records to determine whether they

have any probative value to the defendant in the preparation of his defense and to the

trial of the case. “The trial judge, in his sound judicial discretion, must be the arbiter of

the probative value -- either as direct evidence or as a source of cross-examination -- of

the findings contained in the report of [the state mental health facility]. Id. at 387.



       I believe that the duty in the present case was upon the trial court to determine

by a review of the records whether disclosure was proper under T.C.A. § 33-3-

104(10)(A)(iv). The statutory confidentiality is for the benefit of the victim, and it does

not depend upon whether the victim received treatment in a private or pubic mental

health facility. In this respect, I do not believe that the trial court can delegate its

responsibility to review the records in any fashion to the prosecutor. Obviously, when



                                              20
the prosecution and the defense cooperate procedurally with the trial court, they may

aid the trial court’s understanding of the relevant issues in the case in order that it may

make a more informed review of the records. However, disclosure of the records to

either side pursuant to the statute must follow -- not precede -- the trial court’s

determination that “disclosure is necessary for the conduct of proceedings before it and

that failure to make such disclosure would be contrary to public interest or to the

detriment of either party to the proceedings.” T.C.A. § 33-3-104(10)(A)(iv).



       As the majority opinion notes, the record reflects that the trial court reviewed the

records and indicated that it believed them to contain exculpatory information, although

it did not know much about the case. Given the nature of the records, I agree with the

majority opinion that the trial court, at that point, should have disclosed the records to

the parties. However, if the trial court was unsure as to the exculpatory nature of the

records, it was not authorized to disclose them to either party. Obviously, under such

circumstances, it is, as a practical matter, the responsibility of the parties to provide the

trial court with sufficient information to allow it to consider the relevance of the

confidential records.



                                           ____________________________
                                           Joseph M. Tipton, Judge




                                              21
              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                    AT KNOXVILLE                    FILED
                        AUGUST 1998 SESSION
                                                                      January 8, 1999

                                                                    Cecil Crowson, Jr.
                                                                    Appellate C ourt Clerk
STATE OF TENNESSEE,                )
                            )
       Appellee,            )      No. 03C01-9708-CC-00367
                            )
                            )      Anderson County
v.                          )
                            )       Honorable James B. Scott, Judge
                            )
JEFFREY R. ALLEN and               )       (Attempted Rape)
JENNINGS MICHAEL COEN,             )
                     )
     Appellants.     )



                                 CONCURRING OPINION



       I concur in the results reached and most of the reasoning used in the majority

opinion. However, I question its implication that the district attorney general is

authorized to review medical/mental health records regarding a criminal victim’s

treatment in a state mental health facility without having either prior authorization from

the trial court under T.C.A. § 33-3-104(10)(A)(iv) or prior consent of the victim. The

confidentiality provided by the statute is for the benefit of the mental health patient.

There is no exception for prosecutors when the patient becomes a victim of crime.



       Also, I believe that the cases upon which the majority opinion relies do not

authorize the prosecutor to review a victim’s records that are otherwise privileged by

law. In Foster v. State, 942 S.W.2d 548, 550 (Tenn. Crim. App. 1996), this court noted

that a prosecutor has a duty to search reasonable sources for materially exculpatory

information. However, it said nothing about the prosecutor being allowed to invade

confidential records.




                                             22
       In State v. Brown, 552 S.W.2d 383 (Tenn. Crim. App. 1977), our supreme court

dealt with the then existing statutory privilege regarding communication between

psychiatrist and patient that allowed disclosure in a criminal case if the mental condition

of the patient was an issue or the trial court determined that the interests of justice

required that the privilege be withheld. The state’s primary witness had been

hospitalized for an extended period of time in a state mental health facility. The issue

related to whether the defendant was entitled to discovery of those records. The

records reflected that she had been treated repeatedly for emotional disturbances of

psychotic proportions.



       First, the supreme court determined that the statutory exceptions to the privilege

had been met, partly because the conviction rested upon the testimony of the witness

and her twelve-year-old grandson, and her mental condition would be an issue. It noted

that the psychiatric records had impeachment value. 552 S.W.2d at 385. Then, the

court discussed various options that the trial court had once the defendant’s discovery

motion was presented. Id. at 385-86. Finally, it stated that the trial court should

conduct an in camera inspection of the requested records to determine whether they

have any probative value to the defendant in the preparation of his defense and to the

trial of the case. “The trial judge, in his sound judicial discretion, must be the arbiter of

the probative value -- either as direct evidence or as a source of cross-examination -- of

the findings contained in the report of [the state mental health facility]. Id. at 387.



       I believe that the duty in the present case was upon the trial court to determine

by a review of the records whether disclosure was proper under T.C.A. § 33-3-

104(10)(A)(iv). The statutory confidentiality is for the benefit of the victim, and it does

not depend upon whether the victim received treatment in a private or pubic mental

health facility. In this respect, I do not believe that the trial court can delegate its

responsibility to review the records in any fashion to the prosecutor. Obviously, when



                                              23
the prosecution and the defense cooperate procedurally with the trial court, they may

aid the trial court’s understanding of the relevant issues in the case in order that it may

make a more informed review of the records. However, disclosure of the records to

either side pursuant to the statute must follow -- not precede -- the trial court’s

determination that “disclosure is necessary for the conduct of proceedings before it and

that failure to make such disclosure would be contrary to public interest or to the

detriment of either party to the proceedings.” T.C.A. § 33-3-104(10)(A)(iv).



       As the majority opinion notes, the record reflects that the trial court reviewed the

records and indicated that it believed them to contain exculpatory information, although

it did not know much about the case. Given the nature of the records, I agree with the

majority opinion that the trial court, at that point, should have disclosed the records to

the parties. However, if the trial court was unsure as to the exculpatory nature of the

records, it was not authorized to disclose them to either party. Obviously, under such

circumstances, it is, as a practical matter, the responsibility of the parties to provide the

trial court with sufficient information to allow it to consider the relevance of the

confidential records.



                                           ____________________________
                                           Joseph M. Tipton, Judge




                                              24
