           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                               FILED
                              AT KNOXVILLE
                                                              October 14, 1999

                            MARCH 1999 SESSION               Cecil Cro wson , Jr.
                                                            Appellate Co urt Clerk


STATE OF TENNESSEE,                      )   C.C.A. 03C01-9807-CC-00249
                                         )   RHE A CO UNT Y CIR CUIT
                                         )
             Appellee,                   )   Hon. Buddy D. Perry, Judge
                                         )
                                     )
                                         )
vs.                                      )   (ATTEMPT TO COMMIT
                                        )    AGGRAVATED RAPE)
                                         )   NO. 14229
                                         )
CARLOS D. MATHIS,                        )
                                         )
             Appe llant.                 )




FOR THE APPELLANT:                           FOR THE APPELLEE:




B. JEFFERY HARMON                            JOHN KNOX WALKUP
Assistant Public Defender                    Attorney General & Reporter
P.O. Box 220
Jasper, TN 37347
                                             ERIK W . DAAB
                                             Assistant Attorney General
                                             425 F ifth Aven ue N orth
                                             2nd Floor, Cordell Hull Bldg.
                                             Nashville, TN 37243

                                             JAMES MICHAEL TAYLOR
                                             District Attorney General

                                             WILL DUNN
                                             Assistant D istrict Attorney
                                             365 Third Avenue, Suite 300
                                             Dayton, TN 37321




OPINION FILED:_________________


REVERSED AND REMANDED




CORNELIA A. CLARK
Special Judge




                                 OPINION



                                    1
          Appellan t appeals a s of right from his conviction for attem pt to com mit

aggravated rape, a Class B felony.           He was sentenced to serve twelve years.

Appellant raises th e followin g issue s for revie w:    (1) the trial c ourt c omm itted pla in

error in failing to give a jury instruction as to alibi; (2) the co urt co mm itted rev ersible

error in failing to give a jury ins truction as to id entity; (3) th e cou rt com mitted plain

error in telling the jury “there are six (6) potential crimes that could have been

com mitted”; and (4) the court erred in sentencing the appellant. Upon review of the

reco rd, we conc lude th at we mus t revers e an d rem and for a n ew tria l.




         On May 1 7, 1997, Rose Runyon, the victim in this case, opened her flower

shop located in Richland Plaza in Dayton, Tennessee, about 8:30 a.m.                         At

appro xima tely 9:00 a .m., a bla ck ma le unkn own to Mrs. Ru nyon e ntered her flower

and gift shop. He indicated he was looking for a late anniversary present for his wife,

having forgo tten th eir anniversary a few days before. He looked around the store for

about twenty to thirty minutes, then selected several stuffed animals for purchase. As

Mrs. Runyon proc eed ed to the re ar of th e stor e to w rap a nd ta pe th e pre sents

selected, the man followed her to get cards to sign. Suddenly he grabbed her from

behind, placed a knife to her throat, and stated, “Be quiet or I’ll kill you.”          As she

struggled, he cut her on the throat, mouth, chin, and neck. He attempted to place duct

tape over her mou th but, because h er face was co vered with blood, the tape did not

stick.   Mrs. Runyon pleaded with the attacker and told him where her cash was

located. The attacker then threw her to the floor and dema nde d th at she undress.

Mrs. Run yon sta ted, “Yo u mig ht as w ell kill me now . I’m no t pulling my clo thes o ff.”

The attacker pulled off her clothing and began to kiss her. He unzipped his pan ts,

grabbed her b reas t, and attem pted to pe netra te he r.        At tha t mom ent, however,

Kenn eth Robbins, a customer, entered the store. The attacker fled through the back

door, leaving behind the gifts he had chosen and a necktie with strips of duct tape on

it. He took his knife with him. Mrs. Runyon was obviously upset and asked Robbins

to stay until the police came.




                                               2
        Mrs. Runyon testified that she carefully looked at her attacker so that she

wou ld be able to identify him in the future. The rooms were well lit. She described the

attacker to po lice as a blac k ma le, app roxim ately five feet s even inche s tall,

app roxim ately twenty-five years old, weighing between one hundred twenty and one

hundred forty po und s, cle an-shaven, and wearing tortoise-shell framed prescription

glass es.




        Prior to Mrs. Runyon’s ultimate identification of the appellant, Dayton Police

Officer Chris Sneed showed her photographs of approximately ten to twelve black

male susp ects, b ut she could not ide ntify an y of them as her a ttacke r. App ellant’s

pho togra ph w as n ot inc lude d in th e arr ay.




        Sho rtly after th e atta ck M rs. Runyon had o ccas ion to d escrib e he r attac ker to

other Richland Plaza store owners. Margaret Philpott, manager of the neighboring

Mou ntain Air Natural Food Shop, responded that a man matching the description of

the attack er ha d com e into h er sto re on the tw o da ys prec eding the a ttack.              She

testified at trial that on May 15, 1997, the same man remained in her store for

appro xima tely forty-five minutes but did not make a purchase. On May 16, he staye d

in the store for approximately one hour, then purchased children’s vitamins with a

chec k. Du ring h er trial tes timon y, she id entifie d the app ellant a s the c heck writer.




        Another Richland Plaza store owner told Mrs. Runyon that a person meeting

the attacker’s description frequented his store. This owner believed that the individual

worked at a local Arby’s Restaurant. About two or three weeks after her attack, Mrs.

Runyon and h er dau ghter vis ited Arb y’s and, u pon o bservin g the a ppellan t there,

imm ediate ly recognized him as her attacker. She called the police and the appellant

was arres ted.




        After the a rrest, O fficer Ch ris Sneed testified that he conducted a search of the

app ellant’s residence and recovered tortoise-shell prescription glasses and duct tape.

Mrs. Runyon later identified the glasses as those worn by he r attac ker. T he a ppe llant,

clean-shaven at the time of arrest, told Officer Sneed that he was five feet six and

one -half inches tall, that he weighed one hundred forty pounds, and was twenty-one




                                                    3
years old. These details fit the general description given by Mrs. Runyon. Sneed also

obtain ed the appellant’s marriage license showing that his wedding anniversary was

May 12, five days b efore the inc ident.                     N o knif e, shirt, o r pan ts ma tching the

description given by the victim were ever found.




           At trial Ros e Run yon iden tified the a ppellan t as her a ttacker.




           The appellant testified in his own behalf and denied committing the offense

charged.        He stated that at th e time of the incide nt he was at his f athe r-in-law ’s

broth er’s house with his wife, attempting to borrow money from his father-in-law. He

testified that he then proce ede d to a f orme r emp loyer’s lo cation in Ch attan oog a to

obta in his pa ychec k. He testified that he had never been in the victim’s store, that he

had bought a present for his wife prior to his anniversary, that he had always weighed

more than 140 pounds, and that he never wore glasses.




           The appe llant’s alibi wa s corro bora ted by his father-in-law, Don Creasman.

Creasman testified that he particularly remembered the day in question because he

had worked the third shift, left work early in the morning, and cashed a check before

drivin g to his brother’s house. He intended to lend the appellant money. Creasman

further testified that his daughter, her two children, and the appellant all were in the

car when they arrived at his brother’s house. His daughter was driving because the

appellant could not d rive a s tick-sh ift. Crea sma n testif ied tha t the ap pella nt was acting

norm ally and showed no unusu al mark s or b lood. The appellant and his family left for

Chattanooga between 9:10 and 9:15 a.m. Creasman also testified that at the time of

the incident the appellant weighed between one hundred seventy and one hundred

seve nty-five p oun ds, an d tha t he n ever w ore g lasse s.




           On     cross-examination, Don             Creasman        admitted     certain     inconsistencies

between his testimony in the first trial1 and the instant trial. For example, at the time of

the first trial he said he had deposited his own paycheck on the day of the attack.

However, a bank videotape showed that he cashed his check the day before this

incide nt. At the second trial he said it w as his wife’s check he cashed in order to get

money for his son- in-law. C reasman also acknowledged that he never raised the alibi


1
    The cas e had first b een tried s ever al m onth s ear lier an d app aren tly resu lted in a m istrial.



                                                         4
defe nse to the p olice d uring their initia l inves tigation .




        App ellant’s uncle -in-law , Clau de C reas man , also te stified a bou t the ev ent. H is

story was consistent with those of his brother a nd th e ap pellan t. How ever, h e cou ld

not remember details about the exact day when the meeting occurred.




        The defense also called Special Agent Forensic Scientist Robert McFadden of

the Tennessee Bureau of Investigation.                 Age nt M cFadden testified that he had

developed three latent prints o n the duc t tape found on the tie which was left at the

scene of the offense. The fingerprints did not match those of either the victim or the

app ellant.




        Kelly 2 Math is, app ellant’s wife, was called by the state as a rebuttal witness.

She identified a statement she gave to police on June 5, 1996, indicating that she and

her husband were home at the time of th e atta ck a nd d id no t leav e the hou se a ll day.

The statement was given before Mrs. Mathis had an opp ortun ity to spe ak w ith

appellant after h is arre st. He r state men t contr asted with the state men t originally given

by appellant that he was in Memphis visiting his mother at the time of the attack.




        Mrs. Mathis explain ed tha t the origin al statem ent wa s incorr ect because she

was scare d an d up set a t the time she gave it. At trial she testified that on the evening

of May 16, she asked her father if she could borrow money so that she and her

husband could go to Chattanooga the next morning to pick up his final paycheck. She

concurred with the testimony of her father that she, her husband, and her two childre n

arrived at Cla ude Cre asm an’s hom e in D ayton, Tennessee, between 9:00 a.m. and

9:30 a.m. H er fath er loa ned them twen ty dollars and they lef t to go to Chattanooga.

She stated that neither she nor her husband had been at Richland Plaza that morning.

She furthe r testif ied th at he r hus ban d ha d no t forg otten their a nniv ersa ry and had

bou ght h er an ang el ring a s a gif t.




2
  In the court reporter’s transcript, Mrs. Mathis’s first name is spelled “Kelli”. However, in her
statement, signed in her own ha nd, Mrs. Mathis spells her nam e “Kelly”.


                                                   5
                                    JURY INSTRUCTIONS

        Appellant raises tw o issues concerning error in the jury instructions: (1) the

failure to instru ct the ju ry as to th e de fens e of a libi, and (2) the failure to instruct the

jury as to identification.




                                            A. ALIBI

        Trial courts have an affirmative duty to instruct the jury on every issue raised

by the proof, including the accused’s theory of defense, and specifically including the

defense of alibi. Poe v. State , 212 T enn. 4 13, 37 0 S.W . 2d 48 8, 491 (Tenn . 1963 ).

See also State v. McPherson, 882 S.W. 2d 365, 374 (Tenn. Crim. App. 1994)(citations

omitted ).   When a defendant pursues an alibi defense at trial, t he trial court must

instruct the jury on the defense when it is “fairly rais ed” b y the ev idenc e. Manning v.

State , 500 S.W. 2d 913, 916 (Tenn. 197 3); Poe, 370 S.W . 2d a t 491 . See also State

v. Hard in, 691 S.W. 2d 578, 581 (Tenn. Crim. App. 1985 ). The duty exists irrespective

of a re que st for th e instru ction b y the de fend ant. Poe, 370 S.W . 2d a t 491 .




        Our Supreme Court has provided three scenarios reflecting when an alibi

defense has b een “fairly raise d”, the reby m aking the ins truction man dato ry. Manning,

500 S.W. 2d at 916. Those scenarios are:




                (1)      where the defendant’s alibi has been corroborated by other

                         credible witnesses;

                (2)      where the victim has been unable to identify the defendant; or

                (3)      whe re the proo f aga inst the defe nda nt is wh olly circu msta ntial.




Id. Only when the evide nce fairly raises the defense b y meeting one o f the above

circumstances does the trial cou rt have an u neq uivo cal d uty to in struc t the ju ry.

W here the evidence does not meet these circumstances, the trial court is not required

to give s uch a n instru ction. Almo nrod e v. Sta te, 567 S.W. 2d 184, 186 (Tenn. Crim.

App . 197 8).




                                                6
        The app ellant’s wife, her father and her uncle all testified that appellant was

with them at or sufficiently near the time of the offense to make his commission of it

impossible. Although appellant’s wife admitted that her initial statement to police was

inconsistent with her trial testimony, she explained that she was nervous and upset

when she made the initial statement.          There existed a direct conflict in the factual

testimony of the defense witnesses and the victim. Thus the appellant fairly raised the

defense of alib i and it w as fo r the jur y to eva luate the credibility of witnesses and

decide the factual issue. Because the evidence satisfies th e first Manning prong, we

find that an instruction on the defens e of alibi was warranted, and that failure to give it

cons tituted erro r.




        Finding that the trial court erred in its jury charge by omitting the alibi

instruction, we can not say that it is harm less error. W hen the d efense o f alibi is fairly

raised by the pro of at tria l, the fa ilure so to instru ct the ju ry is reve rsible e rror. Poe,

370 S.W . 2d a t 490 -491 ; See also Manning, 500 S.W. 2d at 916.             When a n alibi i s

supported by the p roof, t he ins truction is f und ame ntal to th e de fens e an d ess ential to

a fair trial. Poe, 370 S.W. 2d at 491. It follows th at the appellant’s conviction must be

revers ed a nd a new trial orde red.




                                    B. IDENTIFICATION

        The app ellant a lso co nten ds tha t the trial c ourt e rred in failing to instru ct the

jury as to identification. In State v. Dyle , 899 S.W.2d 607, 612 (Tenn. 1995), the

Tennessee Supreme Court held that whenever identification is a material issue in a

case, and it is requested b y appe llant’s c oun sel, a s pecif ic new instruc tion on identity

adopted by the co urt must be given.           Failure to give the instruction under those

circumstances cons titutes p lain err or.    Id. at 612 ; State v. Cribbs, 967 S.W.2d 773,

780 (Ten n. 19 98).




        In this case, however, appellant’s counsel did not request that an instruction be

given concerning identity.     Neither was the issue raised in the motion for ne w trial.

Therefore, we m ust de termin e whether the trial court’s failure to give the Dyle

instruction is harmless or prejudicial error. Tenn. R. Crim. P. 52(a) (“No judgment of

conv iction shall b e reve rsed on a ppe al exc ept fo r errors which affirm atively a ppe ar to

have affected the re sult o f the tria l on the merits .”); State v. Cribbs, 967 S.W.2d 773,




                                                7
780 (Ten n. 19 98).

        The victim in this ca se ga ve a d etailed d escrip tion of her attacker almost

imm ediate ly after th e po lice arriv ed. S he te stified that she h ad loo ked c arefu lly at him

so that she would be able to identify him in the future. Her description was consistent

with the appellant’s appearance at the time of his arrest. The victim ultimately made a

positive identification of the appellant when she visited his place of employment, and

aga in at trial. Another nearby business owner identified the appellant as a person who

had loitered in her s tore fo r som e time on th e two days b efore the cr ime. T he vic tim

also ultim ately identified gla sses she c laimed were w orn by he r attacke r and th at were

foun d in his reside nce.




        Notwithstanding that identification testim ony, much of the rest of the proof was

circum stantia l. Because (1) appellant introduced evidence of alibi, (2) no clothes or

knife matching those described by the victim were ever found, and (3) no fingerprints

matching the appellant’s were identified, we would be inclined to fin d tha t the er ror in

failing to give the Dyle instruction, standing alone, did affect the ve rdict in this case.

Having already determined that failure to instruct the jury as to th e defense of alibi

constitutes reversible error, we address this issue separately for the benefit of th e trial

court on re man d. Ta ken to geth er, it is cle ar tha t failure to give the tw o instr uctions

may h ave a ffecte d the verdic t.




                                         SENTENCING

        For the benefit of the trial court on remand we will also address the alleged

errors in sentencing. The appellant asserts that the trial court erred in imposing the

ma ximu m tw elve -year sen tenc e for this C lass B fe lony.




        W hen an accused challenges the length, range, or manner of service of a

sentence, this court has a duty to conduct a de novo review of th e sentence with the

presumption that the determinations made by the trial court are correct. Tenn. Code

Ann. §40-35-401(d).         If our review reflects that the trial court follow ed the statutory

sentencing proc edu re, imp osed a lawf ul sen tence afte r givin g due consideration and

proper weight to the factors and principles set out under the se nte ncing law, and the

trial cour t’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 re sult.                 State v.




                                                 8
Fletcher, 805 S .W .2d 78 5, 789 (Tenn . Crim. A pp. 19 91).




        How ever, “the presumption of correctness which accomp anies the trial c ourt’s

action is conditioned u pon th e affirm ative sh owing in the rec ord tha t the trial cou rt

considered sente ncing princip les an d all rele vant fa cts and circumsta nces ”. State v.

Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).              In this respect, for the purpose of

meaningful appellate review,




                the trial cou rt mus t place on th e record its reasons for arriving at
        the final sentencing decision, identify the mitigating and enhancement
        factors found, state the specific facts supporting each enhancement factor
        found, and articulate how the mitigating and enhancement factors have
        been evaluated and balanced in determining the sentence. T.C.A. §§40-
        35-21 0(f) (199 0).




State v. Jones, 883 S .W .2d 59 7, 599 (Tenn . 1994 ).




        Under Tenn. Code Ann. §40-35-210 a court at sentencing is requ ired to

consider all the follow ing:    (a) the eviden ce, if any, re ceived at the trial and the

sentencing hearing; (b) the presentence report; (c) the principles of sentencing and

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

conduct involved; (e) evidence and information offered by the parties on the

enhancement and mitigating factors; and (f) any statem ent th e de fend ant w ishes to

make in his own behalf about sentencing. The court can use evidence or information

offered by either party at any phase of the proceeding in determining what

enhancement and mitigating factors apply. The court can also receive information as

to these factors from the presentence report, even though the information was not

asserted by the parties. Tenn. Code Ann. §40-35-207(a)(5 ). Neither party is required

to file a statem ent o f prop osed enh ance men t or mitig ating f actor s unle ss req uired to

do so by the court.     Tenn. Code Ann. §40-35-202(b). However, a court is always

required to consider the existence of these factors in making its sentencing

determinations. Finally, in co nduc ting our de novo review , this co urt is au thorize d to

consider any enhancement or mitigating factors supported by the record, even if not

relied upo n by the trial cou rt. Sta te v. Adams, 864 S.W.2d 31, 34 (Tenn. 1993). The

burden is on the defendant to show that the sentence was im proper.               Sentencing

Com missio n Com men ts, Ten n. Cod e Ann . §40-3 5-401 (d).

        In impos ing its se ntenc e the co urt cons idere d three enhancing factors under


                                              9
T.C.A. §40-35-114: (1) the appellant has a previous history of criminal convictions;

(11) the f elon y resulte d in death or bodily injury and the appellant has previously been

convicted of a felony involving bodily injury; and (20) the appellant w as ad judica ted to

have committed delinquent acts as a juvenile that would constitute a felonies if

committed by an adult.        The trial judge also apparently considered as a mitigating

facto r the fa ct that a ppe llant ha d a g ood work history a nd a willingn ess to work .




        App ellant, as a juvenile, was adjudicated delinquent for committing the

offenses of first degree murder of one woman, and aggravated assault and attempted

aggravated rape of a second woman. He w as co mm itted to th e De partm ent o f Youth

Development until his twenty-first birthday. While at Taft Youth Center, but after he

turned eighteen, appellant was convicted of criminal conspiracy to commit aggravated

riot. He was sentenced to serve a consecutive sentence for this adult offense.




        App ellant’s   argume nt     as   to   the    erroneous    application    of   the   three

enhancement facto rs is un clear. H e do es no t spec ifically contest the application of

factors (1) or (20). Indeed he cannot. He has one prior adult conviction and three

very seriou s juve nile ad judica tions, a ll of wh ich wo uld have mandated lengthy prison

sente nces if com mitted by an a dult.




        The state takes the position that the third enhancement factor relied upon by

the trial court is factor (11), which permits enhancement where bodily injury is inflicted

and the d efen dan t has previous ly bee n co nvic ted o f a fe lony in volvin g bo dily inju ry.

The trial cou rt’s state men t on this issue is con fusin g:




        THE COURT: . . . The enh ancin g fac tors a re, at lea st, three . I am goin g
        to refer to them by numbers.

                                                ...

        Number 2. Th e felo ny resu lted in d eath or bo dily injury, and in this case
        bod ily injury, be it minor bodily injury but significant m ental inju ry
        obvio usly, . . .




The app ellant asserts only that psychological or emotional injuries are not

considered enh ance men t facto rs.        W e agree that such emotional injuries, by

themse lves, do not establish any of the enhancement factors contained in T.C.A.

§40-35-114 which would allow for enhancement of the sentence above the



                                                10
pres ump tive m inimu m. State v. Reid , 882 S .W .2d 42 3, 430 (Tenn . Crim. A pp. 19 94).




          To the extent that the court intended to apply factor (11 ), it did so in e rror.

App ellant’s only prior a dult con viction is fo r cons piracy to co mm it aggra vated riot, a

Class A m isdem ean or. W hile he was adjud icated delinq uen t as a ju venile for th e

very serious offenses of first degree murder, attem pt to commit aggravated rape, and

aggravated assault, these juvenile adjudications cannot be utilized to make factor

(11) app licab le. W hen imp osin g se nten ce fo r offe nse s co mm itted o n or a fter J uly 1,

1995, a cou rt may co nsider p rior juvenile offens es on ly under T .C.A. §4 0-35-1 14(20 ).

State v. William Jason McMahan, No. 03C01-9707-CR-00262, Knox County (Tenn.

Crim. App ., at Kn oxville, M arch 31, 19 99); State v. Brent Brown, CCA No. 02C01-

9710-CC-00419, Hardeman County (Tenn. Crim. App., at Jackso n, October 26,

1998 ).




          For a Range I, Standard Offender, the range of punishment upon conviction of

a Clas s B fe lony is e ight (8 ) to twe lve (12 ) years . The min imum sentence within the

range is the presumptive s ente nce. If there are e nha ncing but n o mitig ating f actor s, a

court may set the sentence above the minimum in that range but still within the range.

The weigh t to be g iven e ach f actor is left to th e disc retion of the trial judge. State v.

Shelton, 845 S .W .2d 11 6, 123 (Tenn . Crim. A pp. 19 92).




          The trial court appeared to give the most weight to the serious nature of the

offenses committed while appellant was a juvenile, pointing out that, if he had been

convicted of first degree murder as an adult, the offense before him would never

have occu rred, s ince th e ap pellan t wou ld hav e rem ained in jail.

          Since the court misapplied one enhancement factor, our review is de novo

upon the record. However, a fter conducting that review, we conclude that the trial

court properly sentenced the appellant. Appellant’s record of vi olent behavior against

women from a young age is entitled to great weight. Having found the existence of

two enhancing factors, and only one mitigating factor, we find the record supports the

trial cour t’s judgment that a twelve-year sentence is appropriate. This issue has no

merit.

          For the reasons set forth above, we reverse the judgment of the trial court and

rema nd th is cau se fo r a ne w trial.




                                                11
                                       _________________________________
                                       CORNELIA A. CLARK
                                       SPECIAL JUDGE


_______________________________
GARY R. WADE
PRESIDING JUDGE




_______________________________
NORMA McGEE O GLE
JUDGE




                                  12
