                      IN THE COURT OF CRIMINAL APPEALS

                                     AT JACKSON                        FILED
                              JANUARY 1999 SESSION
                                                                          April 29, 1999

                                                                       Cecil Crowson, Jr.
                                                                      Appellate Court Clerk
STATE OF TENNESSEE,                        )
                                           )      C.C.A. No. 02C01-9805-CC-00151
              Appellee,                    )
                                           )      HENRY COUNTY
VS.                                        )
                                           )      HON. JULIAN P. GUINN,
DONALD RAY SMITH,                          )      JUDGE
                                           )
              Appellant.                   )      (Aggravated Sexual Battery)



          OPINION CONCURRING IN PART AND DISSENTING IN PART


       I agree with my colleagues’ conclusion that the pre-trial statements of the

alleged victim should not have been treated as substantive evidence since they did not

qualify for admission under any of the hearsay exceptions. However, these statements

were admitted without objection and treated as substantive evidence. I conclude the

remedy is a new trial based upon the erroneous admission of evidence, not acquittal

based upon insufficiency of the evidence.

       The trial testimony of the alleged victim indicates that she advised the District

Attorney General’s office several days prior to trial that her pre-trial statements were

false. The alleged victim was called as the state’s first witness and, consistent with her

stated intention several days before trial, testified that the alleged incident did not

occur. The prosecutor then covered in detail her prior inconsistent statements.

Although a party may impeach that party’s own witness, such impeachment testimony

can be highly prejudicial and improper. State v. Roy L. Payne, C.C.A. No. 03C01-

9202-CR-45, Washington County (Tenn. Crim. App. filed February 2, 1993, at

Knoxville); see Tenn. R. Evid. 607.

       When the alleged victim was questioned by the prosecutor about her prior

inconsistent statements, there was no objection or request for an instruction that these

prior statements could not be considered as substantive evidence.             No limiting

instruction was given. When each of the other three witnesses was asked about the
alleged victim’s prior accusatory statements, there was no objection or request for

limiting instructions. Again, limiting instructions were not given.

       Defendant’s argument to the trial court in support of his motion for judgment of

acquittal was based upon witness inconsistencies and reasonable doubt, not that the

hearsay statements of the alleged victim could not be considered as substantive

evidence. Again, in this Court the defendant’s argument is the same. At no time has

the defendant argued that the hearsay statements of the alleged victim were not

substantive evidence.     Furthermore, defendant has not argued that the non-

substantive nature of this evidence fails to corroborate defendant’s confession.

       When hearsay evidence is admitted without proper objections, such testimony

may be properly considered and given its natural probative effect as if it were

admissible. State v. Harrington, 627 S.W.2d 345, 348 (Tenn. 1981); State v. Carney,

752 S.W.2d 513, 514-15 (Tenn. Crim. App. 1988). Due to the absence of an objection

and the absence of limiting instructions to the jury, the jury unquestionably considered,

and was entitled to consider, these hearsay statements as substantive evidence.

       The majority concedes, and I agree, that the pre-trial statements of the victim

are sufficient to corroborate defendant’s confession if they are considered substantive

evidence.    Since the jury undoubtedly considered the pre-trial statements as

substantive evidence due to the absence of limiting instructions, I would find their

admission plain error. I do not believe this Court is at liberty to treat the statements

only as non-substantive evidence so as to require an acquittal. The erroneous

admission of evidence in this case justifies a new trial, but does not mandate an

acquittal. Although the state may not be able to proceed with a prosecution upon a

remand, this Court should not grant an acquittal under these circumstances.



                                                  ______________________________
                                                  JOE G. RILEY, JUDGE




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