        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT KNOXVILLE             FILED
                         JULY SESSION, 1997          January 8, 1998

                                                Cecil Crowson, Jr.
                                                 Appellate C ourt Clerk
STATE OF TENNESSEE,        )    C.C.A. NO. 03C01-9608-CR-00308
                           )
      Appellee,            )
                           )
                           )    SULLIVAN COUNTY
VS.                        )
                           )    HON. FRANK L. SLAUGHTER
ROBERT BACON,              )    JUDGE
                           )
      Appe llant.          )    (Rape)


                ON APPEAL FROM THE JUDGMENT OF THE
                 CRIMINAL COURT OF SULLIVAN COUNTY


FOR THE APPELLANT:              FOR THE APPELLEE:

JAMES A. NIDIFFER               JOHN KNOX WALKUP
201 W. W atauga Avenue          Attorney General and Reporter
P.O. Box 118
Johnson City, TN 37605          TIMOTHY F. BEHAN
                                Assistant Attorney General
                                425 5th Avenu e North
                                Nashville, TN 37243

                                GREELEY W ELLS
                                District Attorney General

                                TERESA MURRAY-SMITH
                                Assistant District Attorney General
                                Blountville, TN 37617




OPINION FILED ________________________

CONVICTION AFFIRMED; REMANDED FOR
FURTHER SENTENCING PROCEEDINGS

DAVID H. WELLES, JUDGE
                                     OPINION


         This is an appeal as of right pursuant to Rule 3 of the Tennessee Rules of

Appe llate Procedure. The D efenda nt, Robert Bacon, was convicted by a Sullivan

Coun ty jury of rape.1 He was sentenced as a Range I, standard offender to eight

years and fined twenty-five hundred dollars ($2500.00).                He was ord ered to

serve his sen tence in com mun ity corre ctions . The Defe ndan t now a ppea ls his

conviction raising ten issues for review:



                 (1) Tha t the eviden ce is insuffic ient to sup port a verd ict of guilt;
                 (2) that the verdict is against the weight of the evidence and the
                 trial cou rt erred by failing to gran t a new trial;
                 (3) that the S tate failed to disclose exculpa tory eviden ce prior to
                 the trial;
                 (4) that the trial court erred by admitting hearsay evidence under
                 the excited utterance exception;
                 (5) that the trial court erred by failing to suppress tape-recorded
                 telephone conversations between the victim and the Defe ndant;
                 (6) that the trial court erred by failing to submit to the jury
                 transcripts of the tape-recorded telephone conversations;
                 (7) that the indictm ent wa s fatally d efective beca use it did not
                 allege the requisite mens rea for rape;
                 (8) that the court failed to timely rule upon the Defendant’s
                 motio ns, de nying h im a fu ll and fa ir trial;
                 (9) that the trial court erred by failing to gran t the D efend ant’s
                 motio ns for a mistria l;
                 (10) that the trial cou rt erred by allow ing the jury to su bmit
                 questions for a witness.




The State appeals the trial court’s p lacing the Defen dant in co mm unity

corrections. We affirm the Defendant’s conviction for rape, but reverse and




1
    Tenn. Code Ann. § 39-13-503.

                                              -2-
remand to the trial court for further proceedings to properly determine the manner

of service of the sentence.



      The State presented the following proof at trial. Lisa Harwood, the victim,

testified that she was twenty-nine years old and married with three children. The

youngest was three weeks old at the time of trial. She testified that her husband,

Mike Harwood, and the Defendant had been friends since childhood. She met

the Defen dant once when she was fifteen or sixteen and he visited her home

briefly on two occa sions prio r to the incide nts in que stion. Th e Defe ndant a nd

Mr. Harwood worked at the same company as truck drivers. In the past, both of

the Harwood s had invited the D efendant an d his wife over for dinner, bu t this

never occurred.



      Mrs. Harwood testified that on March 28th, 1995, a Tuesday, between 8:00

and 9:00 a.m., she called the Defendant to invite him and his wife over for dinner

that next weekend. She did not recall whether she and the Defendant discussed

the fact that Mr. Harwood was go ne on a work trip. After the phone conversation,

she took a shower and dressed her children. Approximately forty-five minutes

after she hung up the phone, or between 10:15 and 11:00 a.m., the Defendant

showed up at her hom e unanno unced. Mrs . Harwood w as in the bathroom

brushing her teeth and her five-year-old tried to open the door. Mrs. Harwood

then went to the door to unlock it. When she saw the Defendant she was not

surprised because he was a friend. The Defendant stated that he was getting a

part for his motorcycle near her home, so he stopped by. Mrs. Harwood did not

see a motorcycle, but did notice the Defendant’s red truck parked in the driveway.

The Defe ndan t cam e in the trailer an d the tw o talke d in the kitchen while Mrs.

                                         -3-
Harwood finished cleaning up. He discussed where Mr. Harwood was traveling

and showed Mrs. Harwood a map. The Defendant talked about religion and

apolog ized for his behavio r on the p revious S aturday n ight.



      He had visited the Harwoods, also unannounced, on the previous

Saturday, March 25, 1995. He arrived at approximately 6:30 to 7:00 p.m. The

family was going to the store, but decided to stay at home after the Defendant

arrived. The Defe ndan t and M r. Harw ood w ent to th e store while Mrs. Harwood

stayed and ba thed the children. The two men returned within an hour and the

Defendant heate d a froz en din ner in the microwave. Both were drinking beer and

sitting in the kitche n. At som e point, Mrs. Harwood sat with them and talked, but

she continued to work around the house.        She noticed that the men rented a

pay-per-view movie on television and ha d move d into the living room to watch it.

The movie appeared to be women modeling lingerie. The men le ft briefly to buy

more beer. At approximately 11:00 p.m., Mr. Harwood decided to take a shower

because he had just returned from a trip. Mrs. Harwood testified that she sat on

a loveseat in the living room and the Defendant continued to sit in a chair and

watch the movie. Mrs . Harwood got up and the Defendant grabbed her and

asked her to touch him and she pulled away, saying that it was not going to

happen.



      Mrs. Harwood testified that she was upset and nervous and went into the

kitchen. She went back through the living room to go outside, at which point the

Defendant grabbed her again and expose d his pen is. He kep t asking h er to

touch his penis because he needed som eone to help him ou t. He ask ed her to

touch it either “one more time” or “one time.” Mrs. Harwood told him to stop

                                         -4-
because her hu sban d wou ld soon finish his shower. She testified that she did not

call out to her hu sband becau se he h ad bee n drinking and sh e wante d to avoid

a fight. The Defendant appeared to be intoxic ated. They heard the bathroom

door open and th e Def enda nt pulle d up h is pants . The D efend ant sta ted: “H e’ll

never know. I’m good at this.” Mr. Harwood returned to the living room and

encouraged the Defendant to stay because he had been drinking.                    The

Defendant declined and left after a few minutes.



      Mrs. Harwood later told her husband what the Defendant had done. The

next morning, a Sunday, the Defendant telephoned the Harwoods and

apologized for his behavior. He blam ed it on marital problems and that he prayed

abou t it and the Lord had forgiven him. Mrs. Harwood testified that he seemed

sincere and very believable.



      On Tuesda y, the 28th, after the Defenda nt sho wed u p at the Harw ood’s

residence, he and Mrs. Harwood talked. The Defendant was wearing sweatpants

and a leather jacket. Mrs. Harwood was wearing a white tee shirt, black pants,

and had a towel on her head because her hair was s till wet. Mr s. Har wood ’s

father came and picked up her five-year-old daughter to spend Tuesday night

with them . Her tw o-yea r-old w as still in the hom e, but fell asle ep. Mrs. Harwood

and the Defendant sat in the living room at approxim ately 12:0 0 to 12:30 p.m. to

watch televisio n. She testified that she sat in a chair next to the bar while the

Defenda nt chose to stan d near her.



      Mrs. Harwood turned away to put down her drink and the Defendant got

on the chair. He put his legs on the arm s of the chair, grabb ed he r arms , and to ld

                                          -5-
her he wa nted h er to “su ck his d ick.” Mr s. Har wood said “no.” The D efend ant’s

crotch area was near her face. While holding her wrists, the Defendant then

pulled down his sw eatpants with h is thumbs a nd expose d his penis.             Mrs .

Harwood testified that she pulled h er wrists away an d tried to h it him. The

Defendant then grabbed h er arm s and pinne d them to the c hair arm s with h is

knees on her elbows . The D efenda nt tried to forc e his pen is in her m outh with

his hands. Mrs. Harwood kept telling him no and the Defendant stated: “You

know you want to do this. You know this is really what you want to do.” He

pulled her hair and pushed his penis in her mouth. Mrs. Harwood estimated that

it was in her m outh fo r three minu tes. Up on he aring a neigh bor pu ll a car in the

driveway , the Defe ndant s topped , pulled his p ants up and stated : “This does n’t

change anything. We can still be friends. I’ll call you later.” He then left. After

the Defen dant left, Mrs. H arwood went into the bathroom to throw up. She sat

down, wondering what happened and feeling shocked that her husband’s friend

did such an act.      She eventually called her neighbor, Wanda Lucas, at

approximate ly 6:00 p.m. Ms. Lucas came to Mrs. Harwood’s trailer, heard her

story and told her to call the police.



      After being interviewed by Detective Ty Boomershine of the Sullivan

Coun ty Sheriff’s Department, she agreed to tape-record telephone calls to the

Defen dant.   Recordings of two calls were played for the jury at trial.          Mrs.

Harwood testified that s he did no t ask nor did she give permission to the

Defenda nt to do any acts to her.



      On cross-examination, Mrs. Harwood testified that she talked on the

telephone with the Defendant on a number of occasions. He would ask about her

                                          -6-
husb and’s work trips an d wou ld ask fo r inform ation th at mig ht ass ist him with his

upcoming trips. Mrs. Harwood admitted that on the Saturday evening when the

Defendant was visiting, she drank two sips of her h usba nd’s beer and consumed

one alcoholic b everage of som e type. She admitted to stating in the preliminary

hearing that she drank half a beer and a glass of wine. She denied assisting the

men order the pay-per- view mo vie on televis ion. Mrs. Harwood testified that Mr.

Harwood and the Defendant went back to the bedro om, b ut she did not go back

there. She stated that her husband told her later that he showed their sexual

devices and g ave a p air of m en’s red underwear to the Defendant. She admitted

owning a pink rubber penis, but denied that it had a nickname of “Pinky.” Mrs.

Harwood testified that the Defendant began discussing his sexual frustrations

with his wife and she suggested he talk to his pastor. She denied making any

sexual co mm ents to the Defen dant.



       Mrs. Harwood saw a pair of red underwear lying by the Defe ndant’s c oat.

She testified that she watch ed approxim ately ten minutes of the lingerie movie

while her hu sban d was in the shower. After the Defendant first grabbed her, she

went into the kitche n, then again went pa st him to get outside where she was

going to wait for her h usban d to get ou t of the sho wer. She called the Defendant

to invite him to dinner at Mr. Harwood’s suggestion. Mrs. Harwood testified that

she let the Defendant in the trailer on that Tuesday because he had apologized

and it seemed sincere and she attributed his behavior to being intoxicated. She

admitted that in the preliminary hearing, she had testified that the Defendant had

been let in the house by her daughter. She also stated that after the Defendant

grabbed her arms and pinned her in the chair, she attempted to kick him in the

groin as well as hit him. She ad mitted tha t, as the D efenda nt was a ttempting to

                                           -7-
force his penis in her mouth, she was moving her head from side to side and

telling him to stop. The Defendant did not force her mouth open, but eventu ally

forced his penis in her mouth as she was talking the whole time. The Defendant

left her home sometime after 12:00 p.m. She did not call her neighbor until 4:00

or 5:00 p.m. and her neighbor came to her trailer at approximately 7:00 p.m. Mrs.

Harwood did not recall whether the Defendant ejaculated in her mouth. She

admitted that she did not tell the Defendant he was being tape-recorded when

she m ade the telephon e calls to him .



      Mrs. Harwood’s father testified that when he went to the trailer to pick up

his granddaugh ter, he saw no one but his daughter and granddaughters. He

arrived sometime in the m iddle of the morning. He testified that Mr. Harwood has

a temper and gets mad.



      The State a lso pre sente d the te stimo ny of W anda Luca s, the H arwoo d’s

neighbor. Ms. Lucas testified that she lived within the group of four mob ile

homes where the Harwood’s lived. Mrs. Harwood telephoned her to come over

and she sounded upset. She estimated this was at approximate ly 3:00 p.m .

When she arrived, Mrs. Harwood was crying, her eyes were red and she was

really nervous and upset. Mrs. Harwood told her that the Defendant forced her

to perform oral sex. Ms. Lucas had noticed a red truck at the Harwood’s that day

and on the pr evious S aturday. On cross-examination, Ms. Lucas stated that she

saw the red truck there after Mrs. Harwood’s father left. Mrs. Harwood described

how the incident occurred and that she was pinned in a chair and that the

Defendant forced h er to perfo rm oral s ex. Ms. Lucas and her husband

encouraged Mrs. Harwood to call the police.

                                          -8-
      Next, the State presen ted testim ony from Mike H arwood , the victim ’s

husband. The Defendant was a childhood friend and coworker of Mr. Harwood.

Mike Harwood testified at trial that he helped the Defendant secure a truck driving

job at his place of emp loymen t. The Defendant and Mr. Harwood traveled

together for work o n two oc casions . They maintaine d a so cial rela tionsh ip in

which the Defendant mentioned that he was having some marital problems, but

did not elabo rate. Mr. H arwood testified that th e Defe ndant “popp ed in” a t his

home at 6:30 or 7:00 p.m . on March 25th, the Saturday before the rape.

Harwood and his family, who were leaving to go grocery shopping, decided to

stay at home because they had company. Mr. Harwood and the Defendant then

decided to get some groceries and a six-pack of beer and return home. The

Defendant boug ht froze n dinn ers wh ich he later he ated in the Ha rwood ’s

microwave.     The Defendant telephoned his wife several times, but could not

reach h er.



      Mr. Harwood testified that while the two m en talked, Mrs . Harwood did

housew ork and cared for the two children. Both men sat and talked in the living

room, drank the beer, and decided to rent a pay-per-view movie on television

which fea tured wo men m odeling ling erie. There was no actual nud ity nor were

sex acts depicted in the film. The men continued to talk while the television was

on.   Mrs. Harwo od was ba thing and read ying the children for bed.            The

Defendant told Mr. Harw ood th at he w as ha ving m arital pro blem s bec ause his

wife was sexually unresponsive. Mr. Harwood took the Defendant to bedroom

to show h im som e sexua l toys or dev ices. Mrs. Harwood was not present in the

bedroom at this time. Mr. Harwood gave the Defendant a pair of men’s red

novelty briefs with “Home of t he W hopper” em blazoned o n the front.          Mr.

                                        -9-
Harwood was n ot awa re if his wife knew anything about the men’s conversation

or his gift to the De fendan t. The men returned to the living room at which point

Mr. Harwood decided to take a shower because he had not cleaned up since

returning from his trip. Mrs. Ha rwood wa s in the kitchen. After his shower, Mr.

Harwood encouraged the Defendant to stay overnight rather than a llowing him

to drive because they both had been drinking. The Defen dant de clined an d left

shortly ther eafter.



        The Defendant called a few minutes later at Mr. Harwood’s request when

he reached his home be cause of Harw ood’s co ncern a bout his d riving safely.

Mr. Harwood testified that afterward, his wife said that the Defendant had pulled

her toward him a nd asked her to touch him.        Mr. Harwood was angry, but

excused the Defendant’s actions as alcohol-induced behavior. The Defendant

called the next morning and Mr. Harwood mentione d the inapprop riate behavior.

The Defendant apologized. Mr. Harwood felt that the Defendant would be less

welcome at his home and he did not suggest plans to see him again.



       On cross-e xamina tion, Mr. Ha rwood te stified that the Defen dant ca me to

his house on Saturday to show off the Defendant’s new truck. The Defendant

had met Mrs. Harwo od one time and talked with h er on the teleph one. Mr.

Harwood could not recall discussing sexual matters early during the visit on

Saturday. They rented the movie on television sometime after 8:00 p.m., the

childre n’s bedtime. At some point the men decided to get a second six-pack of

beer after drinking the first one. They drank three more, for a total of nine beers

between them. Mrs. Harwood took some sips of beer at some point in the

evening. He could not rec all whethe r she also drank so me win e or liquor. In

                                       -10-
explaining why he took the Defendant back to the bedroom to show him the

sexual novelties, Mr. Harwoo d testified: “ I just go t a wild h air. I thou ght ab out it

and I said, well, I’ll take him b ack th ere an d sho w him that an d ma ybe it will h elp

him out.” He showed the Defendant a rubb er pen is nam ed “P inky” an d gave him

the novelty men ’s und erwea r in the hope of improving his sex life. Mrs. Harwood

was not in the bedroo m during this e xchange. A fter Mrs. Harwo od told Mr.

Harwood what the Defendant did to h er, he c hose not to te lepho ne him

immed iately. Mr. Harw ood sta ted that us ually the D efenda nt would c all their

home and it would be unusual for his wife to call the Defendant. Mr. Harwood

learned about the rape on Tuesday, March 28th after he called hom e from a trip

to New Jers ey. On redirect exa mination, M r. Harw ood a dmitte d that h e wou ld

request his wife to arrange social engagements over the telephone because he

disliked talking on the phone.



       Detective Ty Boomershine testified at trial that at approximately 7:30 p.m.

on March 28, 1995, the Sullivan County Sheriff’s Department responded to a

report of rape called in by Lis a Har wood . He we nt to he r hom e, loca ted in a sm all

trailer park in Kingsport. The detective noticed that both of the victim’s forearms

were red and that one arm was beginning to bruise. He could not recall which

arm was bruised. As part of the investigation, he returned to Mrs. Harwood ’s

home on March 30 to discuss making a ta pe reco rding of a te lephon e call with

the Defendant. Detective Boomershine indicated that he needed a tape such that

the average person could understand the content of the conversation. With Mrs.

Harw ood’s conse nt, she tap ed one call on Ma rch 30, 1995. Detective

Boomershine reviewed the tape and asked Mrs. H arwell to ma ke a se cond call,

which was recorded on April 4th. On one of the visits subsequent to March 28,

                                           -11-
Mrs. Harwood pointed out the bruises on her right arm. On cross-examination,

the detective noted that he arrived at the victim’s home on March 28 between

7:40 and 7:45 p.m .     He observe d no signs of a struggle within the trailer.

Detective Boomershine testified he requested the victim ta pe he r call and that he

needed a secon d tape b ecaus e the victim referred to the rape as “it” on the first

tape and that was too ambiguous. On cross-examination, the detective stated

that he felt the case involve d one pers on’s word against another and that further

proof in the form of the tape-recordings would be helpful.           He made no

suggestions regarding the content of the calls.



      At the close of the State’s proof, the Defendant moved for a judgment of

acquittal, which was denied.



      The Defendant testified in his defense. He testified that he had known

Mike Harwood since childhood and that Harwood got him a job at his place of

emplo ymen t. The D efend ant m et the vic tim once whe n he was a teenager, and

later once at the Harwood’s home. He stated he developed a social relation ship

with the victim over the telephone and that they confided in each other and

discussed sex. On Ma rch 25, 1 995, he stoppe d by the H arwood ’s to show them

his truck. He and Mr. Harwood bought some beer and the Defendant heated a

frozen dinner. The two men and Mrs. Harwood sat at the kitchen table and

talked. Mrs. Ha rwood b egan m aking se xual innue ndoes towards the Defe ndant.

Mrs. Harwood was urging her husband to go out by himself and get some other

alcoh olic drinks because she did not like beer. The Defendant felt that she was

trying to get rid of her husb and.   Both m en went to ge t some m ore beer.




                                        -12-
      The Defen dant testified that the victim drank tw o beers and that they

finished all the beer. The Defendant complained about his sex life and Mrs.

Harwood said that wouldn’t happen if she were his wife. The Defendant testified

that he weighs two hundred pounds and that he drank five beers that night and

was feeling “tipsy.” He testified that Mrs. Harwood urged her husband to show

the Defendant their sex toys. He saw a pink “dildo” that Mrs. Harwood referred

to as “Pinky” and a few other items. They gave him the “W hopper” un derwear.

The Defendant was joking about the rubber penis while Mrs. Harwood stood in

the doorway to the bedroom. Mr. Harwood decided to order a movie and Mrs.

Harwood helped make the call. The movie had women in lingerie and some

nudity an d provoc ative dan cing.



      W hile watching the movie and when Mr. Harwood was in the shower, Mrs.

Harwood said the movie was turning her on. She got up from a chair and the

Defendant exposed himself and she made some comments to him.                   He

encouraged her to touch him at which point Mr. Harwood said: “What’s going on

in there?” After Mr. Harwood took a shower, both of the Harwoods indicated that

the movie was turning them on and the Defendant told them to go into the

bedroom. The Defendant continued to drink and watch the movie. He testified

that the Harwoods returned to the kitchen and Mrs. Harw ood p erform ed fella tio

on her husba nd. The D efendant did n ot have a clear vie w of the m, bu t knew it

was happening because of their pos itions. Later they encouraged the Defendant

to stay, but he refused because he did not feel drunk.



      The Defendant testified that th e Harw oods c alled on S unday m orning to

apologize to him. They invited the Defendant and his wife for dinner sometime.

                                       -13-
Mrs. Harwood then called on Tuesday, the 28 th, whic h was unus ual. Sh e told

him about a frozen dinner and the un derwe ar he le ft. He te stified th at she said

her husband would not care if they got caught doing something sexual togethe r.

After the Defendant arrived unannounced at the Harwo od’s trailer on Tue sday,

Mrs. Harwood asked when her husband would be back from a trip. She closed

the curtains and the blinds on the windows. Mrs. Harwood’s father came and

picked up his granddaughter. The Defendant testified that Mrs. Harwood sat

down in a chair and “was looking at me in such ways like c ome o ver here.” He

stated that he went over to the chair and Mrs. Harwood took his penis in her hand

then performed fellatio.   At one point she hesitated and the Defendant placed

her hand back on his penis. He testified that Mrs. Harwood never said “no” nor

did she a sk him to leave. A car pulled up and Mrs. Harwood stopped, got up to

see who was there, then the two went to the couch a nd continue d the oral sex.

The Defendant testified that he ejaculated and afterwards, Mrs. Harwood stated

“I’m going to want to do this more often.” They talked for a short while, then the

Defen dant left.



      Upon cross-examination, the Defendant admitted he was persistent about

initiating a sexual encounter with the victim. He also admitted that, in a statement

made to Det ective B oom ershin e, he d enied that an ything happened on the

Saturday when Mr. Harwood was in the shower. The Defendant stated that on

the tape-recorded telephone conversations, he denied forcing the victim.

Howeve r, when Mrs. Harwood replied: “But you did,” the Defendant did not

respond. He testified that when the victim said “no” she was still responding

sexually a nd that he did not inte rpret that to mean “stop.” The defense rested.




                                        -14-
      The State recalled Mike Harwood in rebuttal. He testified that he and h is

wife never engaged in sexual activity in the presence of the Defendant. He

denied that he made any “wife swapping” suggestions.



      The jury found th e Defe ndant g uilty of rape a nd set a fin e of $25 00. A

sentencing hearing was held on May 10, 1996, and continued to June 28, 1996.

The Defendant was sentenced to eight years and the $2500 fine was approved.

The Defe ndan t subm itted a m otion fo r new tr ial, whic h was also considered on

June 28th, and de nied. The D efendant as ked for probation, and the trial court

sentenced him to one ye ar in Hay Ho use, a com munity corrections treatment

program. The trial court set a review of the Defendant’s progress for August 30,

1996, at which time the trial judge approved the sentence set on June 28th.



      The Defen dant no w appe als his con viction, raising numerous issues for

review. The State has appealed the Defendant’s sentence, arguing that the trial

court erred by sentencing the Defendant to community corrections.



                           I. Sufficiency of the Evidence



      The Defe ndan t conte nds th at the e videnc e was insuffic ient to supp ort a

verdict of guilt for rape. When an accused challenges the sufficiency of the

convicting evidence, the standard is whether, after reviewing the evidence in the

light most fav orable to the prosecution, any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt. Jackson v.

Virgin ia, 443 U .S. 307, 3 19 (197 9). Que stions co ncernin g the cre dibility of the

witnesses, the weigh t and va lue to b e given the evid ence , as we ll as all factual

                                         -15-
issues raised by the evide nce, are resolved by the trier of fa ct, not this co urt.

State v. Pappas, 754 S .W .2d 62 0, 623 (Ten n. Crim . App. 1 987). N or ma y this

court reweigh or reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832,

835 (T enn. 19 78).



      A jury verd ict app roved by the tr ial judge accredits the State’s witnesses

and resolves all conflicts in fa vor of the S tate. State v. Grace, 493 S.W.2d 474,

476 (Tenn. 1973). On appeal, the State is entitled to the strongest legitimate

view of the evidence and all infere nces the refrom. Cabbage, 571 S.W.2d at 835.

Because a verdict of guilt removes the presumption of innocence and replaces

it with a pres umptio n of guilt, the accused has the burden in this court of

illustrating why the evidence is insufficient to support the verdict returned by the

trier of fact. State v. Tug gle, 639 S.W .2d 913 , 914 (T enn. 19 82); Grace, 493

S.W.2d at 476.



      The victim testified that the Defe ndan t held her down on a chair and forced

his penis into her mouth. She explained that he did not force her mouth open,

but beca use s he wa s talking to him while he attempted to achieve penetration,

he managed to force his penis into her mouth. In order to obtain a conviction for

rape, the State was required to prove that the Defenda nt reck lessly, k nowin gly

or intentio nally sexually penetrated the victim accompanied by force or coercion.

Tenn. Code Ann. §§ 39 -13-5 03(a) ; 39-11 -301( c). Sex ual pe netratio n is “sexual

intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however

slight, of any part of a person's body or of any object into the genital or anal

openings of the victim's, the defendant's, or any other person's body, but

emiss ion of sem en is not re quired.” T enn. C ode An n. § 39-1 3-501(7 ).

                                        -16-
       The Defendant contends that the victim’s account of the rape defies the

“physical facts rule,” and that her testimony should be disregarded and

consequ ently, other witnesses’ corro borative testim ony alo ne ca nnot s uppo rt his

conviction. See State v. Hornsby, 858 S.W.2d 892, 894 (T enn. 19 93); State v.

Watkins, 754 S.W .2d 95, 99 (Tenn . Crim. A pp. 198 8).              W e disagre e. The

physical facts ru le is the princip le that te stimo ny that is entirely irrecon cilable with

the physical evidence may be disreg arded. Hornsby, 858 S.W.2d at 894. T his

includes “events that could not have occurred under the laws of nature,” ho wever,

the facts used must be based on univers al physica l laws and not whe re its

application turns up on calcu lations of u ncertain m atters.          Id. at 894-9 5.    In

criminal cases, th e powe r to disregard testimony should be used sparingly and

“[w]hen the testimony is capable of different interpretations, the matter should be

left for the jury to decide as the sole arbiter of cred ibility.” Id. at 895. W e believe

this is such a case.



       The Defen dant arg ues tha t the acco unt of how the rape occurred was

physic ally imp ossib le. He c onten ds tha t he co uld not have pinned the victim in

a chair and pulled his sweatpants down with his thumbs as the victim testified.

Furthermore, he claims that it was physically impossible for him to achieve

penetration when the victim was thrashing her head about. However, penetration

includes forcing a penis in to som eone’s mouth , however slight that penetration

may be. The victim testified that the Defendant pinned her arms with his legs,

pulled her hair and used his hand to force his penis in her mou th. She also

testified that her mouth was open because she was speaking to the De fendan t.

W e can only conclude tha t a rational juror could ha ve found that the Defendant

was able to force his penis in the victim’s mouth at some point during the

                                            -17-
struggle. This provides sufficient proof th at the D efend ant pe netrate d the vic tim

and nothing indicates that the act was clearly physically impossible to achieve.

This issu e is withou t merit.



                               II. Weight of the Evidence



              Next, the Defendant contends that the trial court erre d by failing to

grant his motio n for a ne w trial. He ar gues th at the we ight of the evidenc e is

contrary to the verdict and th at the tria l judge shou ld have exercis ed his thirteenth

juror power. The Defendant cites to numerous instances of inconsistent and

contradictory testimony from the trial. He charges that the trial court was called

upon to evaluate the credibility and weight of the testimony. He ar gues that this

Court should be dubious of the conviction beyond a reasonable doubt and

rema nd to th e trial co urt to en ter an o rder fo r a new trial.



       The thirteen th juror r ule is ap plicab le to all criminal cases and is embodied

in Rule 33(f) of the Tennessee Rules of Criminal Procedure. It states that “[t]he

trial court may gra nt a new trial following a verdict of gu ilty if it disagrees w ith the

jury about the weight of the evidence.” Tenn. R. Crim. P. 33(f). However, once

the trial court approves the verdict as the thirteenth juror and imposes judgm ent,

the review of the evidence on appeal is quite limited, requiring the accrediting of

the testimony of the witnesses for the state and the resolution of evidentiary

conflicts in favor of the state. State v. Moats, 906 S.W .2d 431, 435 (Tenn. 199 5);

State v. Grace, 493 S.W .2d 474, 476 (Tenn. 197 3); State v. Burlison, 868 S.W.2d

713, 719 (Tenn. Crim. App. 1993 ). The tr ial cou rt need not m ake s tatem ents in

the record of its ap prova l of the ve rdict, rath er, whe n it simply overrules a motion

                                            -18-
for new trial without comment, this Court may presume that the trial court

approved the verdict a s the thirtee nth juror. State v. Carter, 896 S.W.2d 119, 122

(Tenn. 1995). Only when the record contains statements indicating that the trial

judge express ed dissa tisfaction or d isagree ment w ith the weight of the evidence

or the jury’s verd ict, or the trial co urt abso lved itself of or m isconstrued its

thirteenth juror function may this Court reverse the judgm ent and order a new

trial. Moats , 906 S.W .2d at 435 ; Carter, 896 S.W .2d at 122 .



       Here, the trial court ove rruled the Defen dant’s m otion for a n ew trial. The

trial judge explicitly stated: “In my opinion the jury was justified in finding the

Defendant guilty. I approve d the verd ict of the jury an d I decline d as a thirte enth

juror to set aside the ver dict. I’m satisfie d with th e verd ict of the jury in this case.”

Thus, our rev iew is limited to the sufficiency of the evidenc e, Moats , 906 S.W.2d

at 435; Burlison, 868 S.W.2d at 719,               which we have already determined

suppo rts the verd ict in this case . This issu e is withou t merit.



                                   III. Brady Violation



       The Defe ndan t conte nds th at a ne w trial is required becau se the S tate

failed to disclos e excu lpatory eviden ce in violation of Brady v. Maryland, 373 U.S.

83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Specifically, he points out that after

the trial, he became aware that the victim had made allegations of rape against

two men in 1982. T he cha rges we re dism issed afte r a prelimin ary hearin g. He

contends that this is relevant impeachment evidence pursua nt to T enne ssee Rule

of Evidence 608(b) that the victim had “cried wolf” in the past. The Defendant

charges that the State shou ld have know n this information a nd should h ave

                                            -19-
furnished it to him. However, the Defendant has presented n o proof to supp ort

this allegation. Counsel stated at the hearing on the motion for new trial that the

records had be en expu nged. In essen ce, the D efenda nt asserts that the S tate

had a d uty to investig ate the victim .



       First, the State cou nters that the Defendant has waived the issue because

he has presented nothing other than the statements of counsel that the victim

made a prior rape claim and that statements of counse l are not evidence.

Second, the State argues that it had no knowledge of any prior claims by the

victim. The State acknowledges a duty to search for information, but that no law

requires them to ask the victim about prior claims. Finally, the State claims that

such evidence would not be material to the case.



        We agree that the allegations contained in pleadings and sta temen ts

made by counsel during a hearing or a trial are not e vidence . The same is true

with regard to the recitation of facts and argument contained in a brief submitted

to this Court. State v. Dykes, 803 S.W .2d 250, 255 (Tenn. Crim . App. 1990 );

State v. Benne tt, 798 S.W.2d 783, 789 (Tenn. Crim. App. 1990). Because the

Defendant has presented nothing but the transcript from the motion hearing that

contains allegations made by counsel, this issue is waived.



       Even if we were to consider this issue as limited to the facts outlined by

counsel during the presentation of the motion, we would conclude that it has no

merit. Brady requires the State to divulge exculpatory evidence, including that

used to impea ch a witne ss. Foster v. S tate, 942 S.W.2d 548, 550 (Tenn. Crim.

App. 1996). Yet, there is n o gene ral constitu tional right to discovery in a criminal

                                           -20-
case, see We atherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 846, 51 L.Ed.2d

30 (1977), and the State is not obligated to make an investi gation, or to gather

evidence, for the defe ndant.      See State v. Reynolds, 671 S.W.2d 854, 856

(Tenn . Crim. A pp.198 4).



       In Foster, the State had a tape recording in its possession which it failed

to review to dete rmine wheth er it contained exculpatory material. This Court has

held that Brady also re quires a duty to search possible sou rces of exculpa tory

information, yet only for “‘non -trivial prospects’ of material exculpa tory

informa tion.” Foster, 942 S.W .2d at 550 . In contrast, the State had no notice of

prior claims by the victim and because the records had been expunged, no

information was obtainable. Furthermore, we cannot conclude that the State had

a duty to cast a dragnet investigation into the victim’s past conduct without being

on some notice that “non-trivial” inform ation e xisted.    T hus, w e cou ld only

conclud e that this iss ue is witho ut merit.



                               IV. Hearsay Evidence



       In his fourth issue, the D efendant arg ues that the trial court erred in

admitting the testimony of Wanda Lucas, which violated the hearsay evidence

rule. Over defense counsel’s objection, the trial court admitted Ms. Lucas’

testimony under th e excited u tterance exception to the hea rsay rule. T enn. R .

Evid. 803(2). An excited utterance is “[a] statement relating to a startling event

or condition made while the declarant was under the stress of excitement caused

by the event or co ndition.” Tenn. R . Evid. 803(2).




                                          -21-
       A jury-ou t hearin g was held in which Wanda Lucas testified that the victim

telephoned because she needed to talk. Ms. Lucas estimated tha t the victim

called sometim e after 2:30 p.m ., but before dark. Howeve r, she did not believe

the victim called her as late as 6:00 p.m. Her best estimate of the time when the

victim called wa s 3:00 or 3:30 p.m . She came over to see the victim, who was

crying, had red eyes an d make up sme ared on he r face. The victim w as very

shaky, upset an d confu sed. Ms. Lucas tried to calm her down. Ms. Lucas stated

that the victim appeared disoriented and that she was more upset than she had

ever seen her. U pon h earing this tes timon y, the tria l court ru led it ad miss ible as

an excited utterance.



       The test for determining that a statement qualifies as an excited utterance

is sponta neity and logical relatio n to the ev ent. State v. S mith, 857 S.W .2d 1, 9

(Tenn. 1993). The declaration mus t arise w hile the perso n is “still laboring under

the excitement and strain of the circumstances and at a time so near it as to

preclude the idea of delibera tion and fabrication.” Id.; see State v. Kendricks, 891

S.W.2d 597, 604 (Tenn. 1994).              Here, the victim reported the incident

appro ximate ly three hours after it occurred. She appeared tearful and confused

when she first saw Ms. Luc as. Ms. L ucas h elped h er calm down. N either her

ability to calm down nor the fact that she did not report the incident for a few

hours preclu des a finding that the victim was still suffering from the stress of

excitement from the rape. See State v. Smith , 868 S.W.2d 561, 574 (Tenn.

1993); State v. Lavelle Winfrey, C.C.A. No. 02C01-9210-CC-00235, Tipton

Coun ty (Tenn . Crim. A pp., Jacks on, Feb . 23, 1994 ), perm. to appeal denied

(Tenn. 1994). In Winfrey, the victim reported an attempted rape two hours after

it occurred and third-party testimony was admitted under the excited utterance

                                           -22-
exception. Here, the victim reported the rape three hours later and appeared

very upset and shaky. We cannot conclude that the trial cou rt erred in admitting

the statements made by the victim to Wanda Lucas. This issu e is withou t merit.



                             V. Aud iotape T ranscrip ts



       The Defendant next argues that the trial court erred in refusing to admit the

transcripts of the two telephone calls of the victim talking with the Defendant. He

asserts that the trial court’s failure to allow introduction of the transcripts violates

due process becaus e the jury had to rely on “ra mbling and red undan t”

conversations that they heard one time.



       Tape recordings and compared transcripts are admissible and may be

presented into evidence by any witness who monitored the conversations if he

or she was in a position to identify the dec larant with c ertainty. State v. Jones,

598 S.W .2d 209 , 223 (Te nn. 1980), overruled on other grounds by State v.

Shropsh ire, 874 S.W.2d 634, 638 (Tenn. Crim. App. 1993). The trial judge must

control the mode and manner of the introduction of evidence to the jury, and has

wide latitude and discretion in determining the nature of the evidence to be

considered. State v. Elrod, 721 S.W.2d 820, 823 (Tenn. Crim. App. 1986). W e

may not disturb the rulings of the trial judge absent an abu se of disc retion. Id.

W e find no abuse of discretion in this case. The tape-recorded conversations

were clearly admissible because they were authenticated by Mrs. Harwood, who

was presen t and pa rticipated in their creation.        However, defense counsel

attempted to authenticate the transcripts of the calls through D etective

Boomershine.      Proper authentication of transcripts requires that they be

                                         -23-
compared to the tapes and evaluated for their ac curacy. See State v. Cameron,

909 S.W.2d 836, 850 (Tenn. Crim. App. 1995 ); State v. S mith, 656 S.W.2d 882,

888 (Ten n. Crim. App . 1983).



       In the case at bar, the trial judge examined the detective regarding the

accuracy of the transcripts. Detective Boomershine stated that he or someone

at the sheriff’s department reviewed the transcripts for their accuracy. The

detective testified that they were accurate “to my know ledge ” but did not cle arly

state that he carefully reviewe d the tapes for ac curacy. Apparently, the trial judge

was not satisfied that the transcripts were p roper ly authe nticate d and thus, d id

not allow their su bmiss ion to the ju ry. We canno t conclude that the trial judge

abuse d his discr etion. Th is issue is w ithout me rit.



                        VI. Motion to Suppress the Tapes



       The Defenda nt claims that the trial cou rt erred by failing to grant his motion

to suppress the tape-recorded telephone calls between the victim and the

Defendant.     He argues that the victim acted as an agent of the State and

engaged in overreaching police conduct violative of due process and the Fourth

and Sixth Amendments to the United States Constitution.            We disagree and

conclud e that this iss ue is witho ut merit.



       The United States Constitution provides no protection for those who

volunta rily offer information to a confidant. The Supreme Court has found no

violations under the Fourth, Fifth or Sixth Am endm ents. See Clariday v . State,




                                          -24-
552 S.W.2d 759, 768 (Tenn. Crim. App. 1976) (citing Hoffa v. United States, 385

U.S. 29 3, 87 S.C t. 408, 17 L .Ed.2d 3 74 (196 6)).



      If the law gives no protection to the wrongdoer whose trusted
      accomplice is or becomes a police agen t, neithe r shou ld it prote ct him
      when that same agent has recorded or transmitted the conversations
      which a re later offere d in eviden ce to pro ve the Sta te's case .


Clariday, 552 S.W.2d at 768 (quoting United S tates v. W hite, 401 U.S. 745, 752,

91 S.Ct. 1122, 1126, 28 L.Ed.2d 453 (1971) (plurality opinion)). Nor do the

circumstances in this case, although deceptive, rise to the level of implicating

notions of fair play as protected by the Fo urteenth Ame ndme nt. See State v.

Branam, 855 S.W.2d 563, 568-69 (Tenn. 1993).               In fact, the surreptitious

recording of conve rsations h as bee n sanc tioned by statute. Tenn. Code Ann. §

39-13-601 (b)(4). “It is lawful . . . for a pe rson ac ting unde r the color o f law to

intercept a wire, oral or electronic comm unication , where th e perso n is a party to

the comm unication . . . . Tenn. C ode Ann . § 39-13-601(b)(4). The Defendant

misplaced his trust in the victim and volunteered incriminating statements. The

trial court did not err in denying the Defendant’s motion to suppress the telephone

conversations.



                             VII. Defective Indictment



             The Defendant argues that the indictm ent wa s fatally defective

because it failed to allege the requisite mens rea. The indictment contains the

following language:

      The Grand Jurors for Sullivan County, Tennessee, duly empaneled and
      sworn, upon their oath present that ROBERT BACO N on or about
      March 28, 1995 in the State and County aforesaid and before the

                                           -25-
       finding of this In dictm ent did unlaw fully and forcibly s exually penetrate,
       by inserting his penis into her mouth, Lisa Harwood, in violation of
       T.C.A. §39-13-503, and Against the peace and dignity of the State of
       Tennessee.


       An indictment or presentment must provide notice of the offense charged,

an adequ ate bas is for the en try of a proper judgment, and suitable protection

against double jeopardy. State v. T rusty, 919 S.W .2d 305, 310 (Tenn. 199 6);

State v. Byrd, 820 S.W .2d 739 , 741 (T enn. 19 91); State v. Lindsay, 637 S.W.2d

886, 890 (T enn. C rim. A pp. 19 82).      T he ind ictme nt “mu st state the fac ts in

ordin ary and concise language in a manner that would enable a person of

common unde rstand ing to k now w hat is intended, and with a deg ree of ce rtainty

which would enable the court upon conviction, to pronounce the proper

judgm ent.” Tenn. Code Ann. § 40-13-202; Wa rden v. Sta te, 214 Tenn. 391, 381

S.W .2d 244, 245 (1964).



       A lawful accusation is an essential jurisdictional elemen t, thus, a

prosecution canno t procee d withou t an indictm ent that su fficiently informs the

accused of the essential eleme nts of the o ffense. State v. Perkinson, 867 S.W.2d

1, 5 (Ten n. Crim. A pp. 199 2); State v.Morgan, 598 S.W.2d 796, 797 Tenn. Crim.

App. 1979).     A judgment based on an indictment that does not allege all the

essential elements of the offense is a nulli ty. Wa rden v. Sta te, 381 S.W.2d at

245;    McCra cken v. S tate, 489 S.W.2d 48, 53 (Tenn. Crim. App . 1972).

Furthermore, the Tennessee Code provides that "[i]f the definition of an offense

within this title does not plainly dispense with a m ental elem ent, intent,

knowledge, or reckles sness s uffices to e stablish th e culpable m ental state ."

Tenn . Code Ann. § 3 9-11-30 1(c).




                                          -26-
        Our su preme court ha s recen tly held that :

   for offenses which neither ex pressly re quire no r plainly dispe nse with the
   requirement for a culpable mental state, an indictment which fails to allege
   such me ntal state will be sufficient to supp ort prosecution and conviction
   for that offense so long as

        (1) the language of the indictment is sufficient to meet the
        constitutional requirements of notice to the accused of the charge
        against which the accused mus t defen d, ade quate basis for entry of
        a proper judg ment, and protection from d ouble jeopa rdy;
        (2) the form of the indictment meets the requirements of Tenn. Code
        Ann. § 40-13-202; and
        (3) the me ntal state can be logically inferred from the conduct
        alleged.


State v. Rog er Da le Hill, Sr., No. 01S 01-970 1-CC -00005 , Wa yne Co unty (Tenn .,

Jackson, N ovembe r 3, 1997).



        Here, the indictment clearly satisfies the constitutional notice requirem ents.

There was adequate notice that the Defendant was charged with the statu tory

offense of rape as codified in Tennessee Code Annotated section 39-13-503

which contains the essential elements of the offense. Here too, is sufficient

information by which the trial judge could pronounce judgment for the offense of

rape.     Finally, the D efenda nt is adeq uately pro tected ag ainst a second

prosecution for an offense of rape of the victim occurring on March 28, 1995.



        Regarding the second requirement, it is also apparent that the indictment

was drafted su ch that a p erson o f ordinary inte lligence could un derstan d with

what offense he was charged. The indictment also sufficiently stated the factual

circumstances by alleging that the Defendant “did un lawfully a nd forc ibly sexu ally

penetrate, by inserting his penis into her mouth, Lisa Harwo od.” It is clear who

the victim was and what specific act of forcible sexual penetration the Defendant



                                          -27-
was called to defend against. Likewise, the third requirement of the test, that the

mental state be logically inferred from the indictment, has been met.                 The

allegation of “force” contemplates a mental state. As defined in the Code,

“‘[f]orce’ means compulsion by the use of physical power or violence and shall be

broadly c onstrue d to acco mplish th e purpo ses of this title.” T enn. C ode An n. §

39-11-106 (a)(12). Force implies that the power is directed toward an end and

without the cons ent of the victim. Lundy v. S tate, 521 S.W.2d 591, 594 (Tenn.

Crim. App. 19 74). Th us, the ele ments of the charged offense imply that the

Defendant possessed some level of awareness of his actions that would sa tisfy

proof of a culpable mental state under section 39-11-301(c). Therefore, we

conclude that the indictment in this case adeq uately informed the Defendant of

the cha rges ag ainst him and tha t this issue is w ithout me rit.



                   VIII. Trial Court’s Failure to Rule on Motions



       The Defe ndan t alleges that the trial judge never ruled on two issues and

that, as a result, he was prejudiced because he was prevented from developing

a record for app eal. He first con tends that the trial cou rt failed to rule on his

motion to suppress the telephone conversations. The trial court considered the

Defe ndan t’s motion to suppress prior to trial and, as the Defendant suggests, the

trial court did reserve judgment. At the hearing on January 5, 1995, the trial

judge stated: “I’m no t going to sup press anythin g toda y. I’ll rule on it at the trial.”

On the 16th of April, before trial, the D efenda nt again ra ised the m otion. In

reference to the State’s admitting the tapes, the trial court ruled that “[t]hey (the

tapes) w ould be admis sible.”




                                           -28-
       Rule 12(e) of the Tennessee Rules of Criminal Procedure provides that “[a]

motion made before trial shall be determined before trial unless the court, for

good cause, orders that it be deferred for determination at the trial of the general

issue or until after verdict, but no such determ ination sh all be defe rred if a party’s

right to appeal is adve rsely affected.” See State v. Auco in, 756 S.W.2d 705, 709

(Tenn. Crim. A pp. 198 8); Bolton v. S tate, 591 S.W.2d 446, 449 (Tenn. Crim. App.

1979); Feagin s v. State, 596 S.W.2d 108, 109-10 (Tenn . Crim. A pp. 197 9).

“Before trial” mea ns before the da y the tria l is sched uled to be gin. Auco in, 756

S.W .2d at 709 .



       Here, the trial court heard arguments on the motion to suppress on

January 5, 1995, and made no specific ruling. Defense counsel raised the

motion again on the day of trial prior to the jury being empaneled. The trial court

ruled at that time that the tapes were admissible. We agree that the trial court

should have ruled on the Defendant’s motion prior to the day of trial. However,

we see no evidence that the Defendant was prejudiced by the delay. He has

preserved the issue for appe al, and we ha ve conside red the m erits of his cla im

and co nclude d that the ta pes we re prope rly admitted .



       The Defe ndan t also co ntend s that th e trial co urt failed to rule on the

admis sibility of the transcripts of the tap e-recorded tele phone calls. Defense

counsel reques ted that the y be adm itted. The trial judge exa mined D etective

Boomershine and de termine d that they were no t properly a uthentica ted.

Although the trial ju dge d id not s tate exp licitly on the record, it is apparent that he

did not consider them admissible.            Furthermore, the Defendant has not




                                           -29-
demonstrated that the trial cour t’s failure to ad mit the tran scripts has prejudiced

him. Th is issue is w ithout me rit.



                            IX. Failure to Grant a Mistrial



       The Defendan t first argues that the S tate requ ested a n interlocu tory appeal

in the pres ence o f the jury. He claims th at this was prejudicia l to him an d that a

mistrial shou ld have been granted. Th e State asse rts that the record reflects that

the request w as mad e outside the p resence o f the jury.



       The request for appeal arose after the trial judge asked if any member of

the jury had a que stion to subm it to Mrs . Harw ood, th e victim , while s he wa s still

on the stand testifying. The State requested a jury-out hearing and argued

against the trial cour t’s actions. T he State asked for an interlocutory appeal. The

jury returned to open court, at which time the trial judge asked if anyone had a

question. At that po int, the State again requested an interlocutory appeal, which

was overruled. After two other witnesses testified, the State renewed its request

for an interlocutory appeal, which was denied. The State then asked for a

mistria l, which was denied, and the Defendant asked for a mistrial, which was

denied.    Becau se the D efenda nt has faile d to cite autho rity to sup port his

argum ent, this issue is waived. T enn. C t. Crim. A pp. R. 10 (b); State v. Killebrew,

760 S.W .2d 228 , 231 (T enn. C rim. App . 1988).



       Even if we consider the issue on its merits, we cannot conclude that the

State enga ged in such conduct that the Defendant was prejudiced. Our review

of prosecutoria l misconduct consists of considering five factors to determine

                                           -30-
whether the prosecutor’s statem ents affec ted the ve rdict. Judge v. State, 539

S.W.2d 340, 344 (Tenn. Crim. App. 1976); State v. Davis , 872 S.W.2d 950, 953-

54 (Tenn . Crim. A pp. 199 3). These are (1) the cond uct co mpla ined o f viewed in

the context and in light of the facts and circumstances of the case; (2) any

curative measures undertaken by the court and the prosecution; (3) the intent of

the prosecutor in making the improper statement; (4) the cumulative effect of the

improper conduct and any other errors in the record; and (5) the relative s trength

and weakn ess of the case. Judge, 539 S.W.2d at 344. The assistant district

attorney had aske d for an interlocutory a ppea l in a jury-out hearing, then

interjected the request again in fro nt of the jury. After two witnesses testified, the

Defendant asked for a mistrial, which was denied. The trial court issued no

curative instructions. The Defendant cites no additional instances of misconduct

by the State . There fore, in the c ontext of the entire case, we cannot conclude

that the D efenda nt was d enied a fair trial.



       The Defendant also charges that a mistrial should have been granted

because an agent of the State had contact with the victim before she testified.

At the co mm ence men t of the tria l, the rule on sequestration of witnesses was

invoked. The victim, Mrs. Harwood, was waiting in the witness’ waiting area for

her turn to testify. W hen it w as ap paren t that the victim would b e called n ext to

testify, Anna Sue Lavin, a victim advocate employed by the State, had contact

with her. A jury-o ut hearin g was h eld. Ms. La vin testified tha t she told th e

witness she was next so she could use the restroo m. The victim asked for some

tissues, which Ms. Lavin provided. Ms. Lavin told the witness not to be nervous.

There was no discuss ion rega rding the testimon y in the cas e. The tr ial court

denie d the D efend ant’s m otion fo r a mis trial.

                                           -31-
       The rule on sequestration of witnesses “is designed to detect falsehood as

well as to prevent any witness from coloring his, or her, testimony either

purpose ly or through influence by talking to other witnesses and hearing them

talk.” Nanc e v. State, 210 Tenn. 328, 333, 358 S.W.2d 327, 329 (1962). If a

witness violates the rule and h is or her testimony is material, permitting that

witness to testify is not error unless the wronged party can show prejudice . State

v. Wicks, 729 S.W.2d 283, 285 (Tenn. Crim. App. 1987). The Defendant has

demonstrated no prejudice he has suffered from allow ing the victim to testify after

contac t with Ms. La vin, therefor e, this issue is without m erit.



              X. The Jury’s Submission of Questions to a Witness



       Finally, the Defendant argues that the trial court erred by allowing the jury

to submit questions to the victim at the conclusion of her testimony. At the

conclusion of questions submitted by counsel, the trial judge examined the victim.

After he asked several questions, he recessed the jury to submit any questions

they had for the witness. After the jury returned to the courtroom, the trial judge

asked the witness two questions: one regarded how long the victim and th e

Defendant knew each other, the other clarified whether the Defendant ejaculated

in the victim’s mou th. The State re quested an interlocutory appe al, and both the

State and the De fendant requ ested a m istrial on this issue, all of which we re

denied .



       Although we find the trial court’s action s high ly irregu lar, we d o not fin d it

to be reversible error in the case sub judice. A trial court judge should exercise

his right to call and exam ine a witness w ith great care, and should do so only

                                          -32-
when it may be necessary to avoid a miscarriage of justice. Ten n. R. Evid.

614(a); Coffee v. State, 188 Tenn. 1, 216 S.W.2 d 702 (1 948); State v. Brock,

940 S.W .2d 577 , 581 (T enn. C rim. App. 19 96). However, the trial court has

discretion to interroga te witness es. Ten n. R. Evid . 614(b).     "T he court, must,

however, be scrupulously careful not to indicate to the jury its opinion as to the

guilt or innocence of the accused, especially in examining the accuse d hims elf,

which would be no t only improper, but prejud icial error." Brock, 940 S.W.2d at

581(citation omitted) ; see Tenn. Const. art. VI, §. 9 "[The] trial judge shou ld

examine witnesses only in rare instances and then only by a few questions

necessa ry to clear up the situation, it being better to suggest to counsel the

additiona l informatio n desired , and let him ask the q uestions ." Id.



       Here, after the State and defense counsel questioned the witness, the trial

judge interrogated the victim on se veral p oints. H e ma de no spec ific comm ents

regarding the evid ence , but po intedly question ed the w itness. Wh ile the vic tim

was still on the stand, the trial court rece ssed the jury for any individu al jurors to

com pile questions for the witness. He instructed the jury not to discuss the case

in any way. He stated that any juror who had a question could raise his or her

hand and h e wou ld subm it a written question. Two questions were asked. The

trial court’s action s were clearly u nusu al, however, we cannot conclude that the

trial judge commented on the evidence such tha t it violated the De fenda nt’s

rights. In fact, he remarked that “[t]his is a search for the truth.” In Brock, the

answers to the trial court’s exa mination of the defe ndant e stablishe d elem ents

necessa ry to prove th e State’s case. Brock, 940 S.W.2d 581. Here, ho wever,

the jury’s questions only clarified some details about the incident.               After




                                          -33-
considering the entire record in the case sub judice, we are satisfied that this was

harmless error. T.R.A.P. 3 6(b); Tenn. R . Crim. P. 52(a).



      W e do recognize that this practice on the part of trial judges should be

discouraged. It is apparent that such practices place trial judges at a greater risk

of appearing biased and potentially placing the jury in a position to beg in

deliberations ab out the case p rematurely.



                                 XI. Sentencing



      The State has also appealed regarding the Defendant’s sentence. The

State argues that the trial court erred by sentencing the Defen dant to co mm unity

corrections when he was statutorily ineligible for such a sentencing alternative.

The Defendant counters that, although the trial court’s intentions were u nclear,

it appears that the trial judge was attempting to sentence him to probation.



      The Defendant was convicted of rape, which is a Class B felony. Tenn.

Code Ann. § 3 9-13-50 3(b). Th e range of punish ment fo r a Range I, standard

offender is eight (8) to twelve (12) years for the offense. Tenn. Code Ann. § 40-

35-101.   A sentencing hearing was held on May 10, 1996. The Defendant

submitted mitigating factors which are not reflected in the record, but of which

one appea rs to be tha t the Defendant had no prior criminal record.           The

Defendant argued that the minimum sentence in the ran ge of eight (8) years

would be appropriate. The State submitted no enhancement factors, but argued

that the facts and circumstances of the crime should support the imposition of a




                                        -34-
ten-year (10) sentence. The Defendant also submitted a request for probation.



      The Defe ndan t offered witnes ses o n his b ehalf. His wife, Amy Bacon,

testified. The trial court took notice that there were a number of other witnesses,

but rather than taking more testimony as the Defendant requested, he ordered

defense counsel to gather letters from these persons to supplement the

presentence report beca use it w as ina dequ ate. T he he aring w as co ntinue d until

June 28, 199 6. W ithout refere nce to the senten cing princ iples, the trial judge

sentenced the Defen dant to eig ht (8) years as a Ra nge I offen der. Th e State

filed an app eal rega rding the senten cing issu e. See State v. Hayes, 894 S.W.2d

298, 30 0 (Ten n. Crim. A pp. 199 4).



      When the State challenges the length, range, or the manner of service of

a sentence, this co urt has a duty to conduct a de novo review of the sentence

with a presumption that the determinations made by the trial court are correct.

Tenn. Code Ann. § 40-35-402(d). This presumption is "conditioned upon the

affirmative showing in the record that the trial court considered the sentencing

principles and all relevant facts and circums tances ." State v. Ashby, 823 S.W.2d

166, 16 9 (Ten n. 1991 ).



      In conducting a de novo review of a sentence, this court must consider: (a)

the evidence, if any, received at the trial and the sentencing hearing; (b) the

presentence report; (c) the principles o f sentenc ing and argum ents as to

sentencing alternatives; (d) the nature and characteristics of the criminal conduct

involved; (e) any statutory mitigating or enhancement factors; (f) any statement

that the defendant made on his own behalf; and (g) the potential or lack of

                                         -35-
potential for rehab ilitation or treatm ent. Ten n. Cod e Ann. §§ 40-35-102, -103,

and -21 0; see State v. S mith, 735 S.W .2d 859, 863 (Tenn. Crim . App. 1987 ).



      If our review reflects that the trial court followed the statutory sentencing

procedure, imposed a lawful sentence after having given due consideration and

proper weight to the factors and principals set out under the sentencing law, and

that the trial court's findings of fact are adequately supported by the record, then

we may not modify the sentence even if we would have preferred a different

result. State v. Fletcher, 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).



      The record is clear that the trial court failed to apply the sentencing

principles and state them on the record, so we must we conduct a de novo review

of the Defendant’s sentence. The State challenges only the manner of service

of the sentence, therefore, we are satisfied after reviewing the record that the

eight-yea r senten ce is app ropriate in th ese circu mstan ces.



      Howeve r, the trial court’s treatment of the probation reque st is problematic.

At the June 28 hearing, the trial court considered the presentence report. He

also determined that the Defendant’s lack of a prior record could be considered

in mitigation and applied two sentence enhancement factors as possible bases

to deny probation. These were that the offense was committed to gratify the

defen dant’s desire for pleasure or excitement and that he abused a position of

private trust. The trial judge ordered the Defendant to spend one (1) year in Hay

House, which this Court believes to be a community corrections program . See

State v. Boston, 938 S.W .2d 435 , 437 (T enn. C rim. App. 1996 ). He rese t a

hearing for August 30, 1996, to review the Defendant’s progress.

                                         -36-
      At the August 30 hearing, the trial court reviewed a scant, two-paragraph

report from N ancy La nthorn, P h.D., which stated basica lly that the Defendant had

a better understanding of his circumstances and that his prognosis was good.

There were do cume nts reflecting the coun seling ho urs he u nderwe nt. The State

offered no evidence or argument. The trial judge then ordered: “This sentence

will stay as it wa s.” What the sentence “was” remains a mystery. The judgment

form reflects that the Defendant was sentenced to eight years in comm unity

corrections and sp ecifies an evaluation in Hay H ouse. There is no referenc e to

probatio n in the jud gmen t.



      A defe ndan t is eligible for prob ation if th e sen tence impo sed u pon h im or

her is eight (8) years or less. Even though probation must be considere d, a

defendant is not au toma tically entitled to probation as a matter of law. Fletcher,

805 S.W.2d at 787. Factors such as the defendant's potential for rehabilitation,

the nature and seriousness of the offense, and deterrence of others in committing

the crime, and whether the record reflects multiple or recent unsuccessful

sentencing measures other than confinement, can be used to rebut the

presumption that alternative s entenc ing is app ropriate. Id. at 788-89 . Eligibility

for sentencing under the Community Corrections Act is set out in Tennessee

Code Annotated section 40-36-106(a) and (c), as follows:


      (a) An offend er who mee ts all of th e follow ing m inimu m crite ria sha ll be
      considered eligible for punishment in the community under the
      provisions of this cha pter:

      (1) Person s who, without this option, would be incarcerated in a
      correctional institution;

      (2) Persons who are con victed of pro perty-relate d, or
      drug/alcohol-related felony offenses or other felony offenses not



                                            -37-
      involving crimes against the person as provided in title 39, chapter 2,
      parts 1, 2, 3, 5, 6, and 7;

      (3) Persons who are convicted of nonviolent felony offenses;

      (4) Persons who are convicted of felony offenses in which the use or
      possession of a weapon was not involved;

      (5) Persons who do not demonstrate a present or past pattern of
      behavior indicating violence;

      (6) Persons who do not demonstrate a pattern of committing violent
      offenses; and

      (7) Persons who are sentenced to incarceration or on escape at the
      time of consideration will not be eligible.

      (c) Felony offenders not otherwise eligible under subsection (a), and
      who would be usually considered unfit for probation due to histories of
      chron ic alcohol, drug abuse, or mental health problems, but whose
      special needs are treatable and could be served best in the com munity
      rather than in a correctional institution, may be considered eligible for
      punishm ent in the com munity und er the provisions o f this chapter.


The Defendant is not eligible under subsection (a) because he cannot meet the

requirements of subsection (a)(2) of the minimum criteria. As to subsection

(a)(2), rape is clearly a felony offense involving a "crime against the person" and

is proscribed in title 39, chapter 2, part 5. Furthermore, there is nothing in the

record that reflects that the De fendant had a “special need ” under subs ection (c).

See Boston, 938 S.W.2d at 439. We do note that subsection (f) provides that

a defendant may be sentenced to community corrections as a condition of

probation. Tenn. Code Ann. § 40-3 6-106 (f). How ever, w e do n ot belie ve that th is

provision waives th e require ments for eligibility for community corrections. Such

a practice would undermine the goals of the community corrections programs.



      The Defendant concedes that he is no t eligible for community corrections,

but claims that the trial court intended to place him on probation. Wh ile there are


                                         -38-
indications in the record that the trial judge was considering probation, the

judgment reflects a se ntence in comm unity correction s. Because of the apparent

contradictions in the record, combined with the Defendant’s ineligibility for

comm unity corrections, we are unable to adequately review the manner of

service of the sentence. Therefore, we believe that the best course is to remand

this case to the trial court for the purpose of properly determining the manner of

service o f the sente nce.



      The Defendant’s conviction for rape is affirmed. This case is rema nded to

the trial court to determine the manner of service of the eight-year sentence.



                                ____________________________________
                                DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
THOMAS T. WOODALL, JUDGE


___________________________________
JOHN K. BYERS, SENIOR JUDGE




                                       -39-
