           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT KNOXVILLE
                               Assigned on Briefs February 19, 2015

               STATE OF TENNESSEE v. KENNETH DUANE HALL

                       Appeal from the Criminal Court for Knox County
                          No. 98674 Mary Beth Leibowitz, Judge


                     No. E2014-02078-CCA-R3-CD - Filed June 30, 2015


The Defendant, Kenneth Duane Hall, was found guilty by a Knox County Criminal Court
jury of rape, a Class B felony. See T.C.A. § 39-13-503 (2014). The trial court sentenced the
Defendant to twelve years’ confinement at 100% service as a violent offender. On appeal,
he contends that (1) the evidence is insufficient to support his conviction and (2) the trial
court erred by admitting evidence related to domestic violence. We affirm the judgment of
the trial court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

R OBERT H. M ONTGOMERY, J R., J., delivered the opinion of the court, in which N ORMA
M CG EE O GLE and D. K ELLY T HOMAS, J R., JJ., joined.

Keith Lee Lieberman (on appeal, at sentencing, and at motion for new trial) and Mitch
Harper (at trial), Knoxville, Tennessee, for the appellant, Kenneth Duane Hall.

Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Senior Counsel; Randall
E. Nichols, District Attorney General; and Leslie Nassios, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                                  OPINION

       At the trial, L.B.1 testified that she was an alcoholic and that her problems with
alcohol developed later in life. At the time of the trial, she had sought treatment for her
addiction and was undergoing therapy. She said that at the time she met the Defendant, she
was not sober. During their fourteen-month relationship, she worked at a department store



       1
           It is this court’s policy to refer to victims of sexual assault by their initials.
and performed odd jobs with the Defendant. L.B. and the Defendant worked as part of the
cleanup crew at Thompson-Bowling Arena and Neyland Stadium.

        L.B. testified that she and the Defendant were each homeless when they met in April
or May 2010. L.B. lived under a bridge behind Keener Lighting Company, but she
eventually found housing through Helen Ross McNabb Center. She obtained an apartment
at Isabella Towers on May 13, 2011, and on May 22, she and the Defendant moved furniture
into her apartment. She said that the following day, the Defendant woke up “ranting” about
L.B.’s not appreciating him. She said the Defendant slit the cushions on the sofa, smashed
the television, and verbally belittled and degraded her. The Defendant told her, “You’re just
like the rest of them b------. You don’t appreciate anything.” Although L.B. did not recall
what she said to the Defendant, she recalled the Defendant’s saying, “Just because you get
this apartment don’t think that you run everything.” She replied, “Well, God runs things, and
all I ask is that you respect my apartment.” She said the Defendant threw a drink on her, hit
her on the back of the head with his fist, dragged her to the floor by her hair, and choked her
with his hands. L.B. thought the Defendant was going to kill her.

        L.B. testified that the Defendant abruptly stopped the attack and that she crawled to
the foot of the bed after catching her breath. She said they exchanged words, and the
Defendant pushed her on the bed. She said, “[He] tried to remove my shorts, which he did,
and I was trying to fight him off.” She told the Defendant, “No, stop; don’t do this.” She
said that the Defendant penetrated her vagina with his penis, that he got up and pulled up his
pants, and that he left after taking her only apartment key. She thought the Defendant stayed
periodically with another woman.

        L.B. testified that she called 9-1-1 and that she went to the hospital because she
thought she had a concussion and broken fingers. At the hospital, she told the investigating
officer that she was unsure if she wanted to prosecute the Defendant. She denied calling the
officer after the night of the incident. She said a Sexual Assault Crisis Center (Center)
employee photographed the bruises while she was at the hospital and asked if she wanted a
rape kit examination performed. L.B. said that she refused the examination because she had
consensual sex with the Defendant recently and because she did not want “to be invaded
again” after being raped. She denied having any genital injuries. She said that she did not
have a concussion and that her fingers were badly bruised but not broken.

       L.B. testified that she returned home after leaving the hospital and that she next saw
the Defendant one or two days later when he returned. She said the Defendant had the same
demeanor, degraded her, and was belligerent. She allowed the Defendant to stay at her
apartment because she feared him, she had low self-esteem, and he controlled her apartment
key, money, and telephone. She said the Defendant always possessed her cell phone,

                                              -2-
monitored her calls, and called some of the telephone numbers to determine to whom she
spoke. She was too afraid to call the investigating officer when the Defendant returned to
her apartment. She said that she had been to the emergency room on three previous
occasions because of the Defendant’s physical abuse.

        L.B. testified that the Defendant stayed at her apartment until July 2011, although she
asked him several times to leave after the alleged rape and that the Defendant always replied
that he would leave when he was ready, that she was his property, and that their relationship
was over when he said it was over. She said that the abuse leading up to the end of their
relationship became more severe and frequent. She recalled the Defendant’s hitting and
stabbing her, burning her with a cigarette, and cutting her hair with a butcher knife. She
denied calling the police on those occasions and said she “made up [her] mind . . . to get
away one way or another.” L.B. realized she could not “fix” the Defendant’s rage.

       L.B. testified that in August 2011, she asked Carolyn Moore from the Center to help
her obtain an order of protection. After L.B. obtained an order of protection against the
Defendant, she spoke to Ms. Moore about reporting the rape that occurred in May. She said
Ms. Moore spoke to the investigating officer, who told Ms. Moore it was still possible to
pursue charges against the Defendant. L.B. provided a statement to the officer, and a warrant
was issued for the Defendant’s arrest. She admitted she cared about the Defendant and said
her feelings for him also played a role in her hesitation to prosecute.

        On cross-examination, L.B. testified that because the Defendant took her apartment
key on the day of the incident, her door remained unlocked while she was treated at the
hospital. She said that although the Defendant returned with her apartment key a couple of
days later, the Defendant maintained control of the key. She said the Defendant brought the
television to her apartment before he destroyed it on the morning of the incident.

       L.B. testified relative to the previous incidents of physical abuse that she never called
the police. She said in that June 2010, she was taken to the hospital and stayed overnight
because of vaginal tearing she suffered after having consensual sex with the Defendant.
Hospital staff advised her and the Defendant to refrain from sexual relations for two weeks.
She did not recall the sexual assault nurse’s telling her on the day of the incident that
previous consensual sexual encounters were irrelevant for purposes of the rape kit
examination.

      On redirect examination, L.B. testified that in addition to the Defendant’s stabbing
and cutting her hair with a knife before the incident in this case, in January 2011 the
Defendant hit her in the face, breaking four bones. She required eye surgery to repair the



                                              -3-
damage. She admitted she told hospital staff that she had been mugged. L.B. also said she
was treated at the hospital after the Defendant bit her forehead during another incident.

      On recross-examination, L.B. testified that the corrective eye surgery occurred in
February but that she was uncertain if the Defendant took her to the hospital. She said,
though, it would not have been unusual for the Defendant to have been with her.

        Glenna Ford, a sexual assault nurse examiner at the Center, testified that the victim’s
left finger and upper and lower lips were bruised. The victim also displayed redness,
swelling, and scarring around her right eyebrow, cheek, neck, and left ankle. Photographs
of the injuries were received as exhibits.

       On cross-examination, Ms. Ford testified that she did not perform the victim’s sexual
assault examination. She said the examining nurse responded to the hospital after the Center
received a telephone call. She said if a victim told an examining nurse that she had
consensual sex two days before an alleged assault, the nurse would document the information
and provide the victim with information relative to the sexual assault examination.

       On redirect examination, Ms. Ford testified that it was common for a victim to be
reluctant to submit to an examination because of the trauma. She said that had the victim
complained of vaginal pain, she would have been examined for trauma but that the victim
did not complain of vaginal pain.

       The hospital medical records were received as an exhibit. The records reflect that the
victim reported that her boyfriend assaulted and raped her inside her apartment. The
examination showed facial, scalp, and hand contusions but no broken bones. She was
prescribed pain medication and instructed to return to the emergency room if her condition
worsened.

        Knoxville Police Investigator Brian Moran testified that he responded to the hospital
regarding an alleged rape complaint on May 22, 2011. He said the victim reported that her
boyfriend, the Defendant, assaulted and raped her inside her apartment. He said that the
victim was unsure whether she wanted to prosecute the Defendant and that he told the victim
to call him after her release from the hospital. She did not contact him, and he unsuccessfully
attempted to contact the victim twice after the incident occurred.

      Investigator Moran testified that the victim contacted him in August 2011 about
prosecuting the Defendant. He said that in his experience, victims of domestic assault and
rape were commonly reluctant to prosecute their attackers.



                                              -4-
       On cross-examination, Investigator Moran testified that if a victim were to choose not
to prosecute an offender, the police department would not move forward. He said he did not
formally interview an identified attacker unless he was certain a prosecution would occur.
He stated that if the victim had stated at the hospital she intended to prosecute the Defendant,
he would have proceeded with his investigation. He said the case was inactive until the
victim contacted him.

        Carolyn Moore, a client advocate at the Center, testified that the victim’s case was
assigned to her in June 2011. She said advocates were assigned to help victims of sexual
assault regardless of whether a victim chose to prosecute an attacker. She stated that the first
time she called the victim, she heard a male voice in the background saying, “[G]et off the
phone; who are you talking to? Get off the phone.” She said the victim stated that she was
late for an appointment and hung up the phone immediately. Ms. Moore did not have further
contact with the victim until August 2011.

       Ms. Moore testified that the victim contacted her in August 2011 about obtaining an
order of protection and that she assisted the victim in the process. For purposes of the order
of protection, Ms. Moore went to the victim’s apartment to take photographs of the sofa the
victim said the Defendant destroyed with a knife. A photograph of the sofa was received as
an exhibit.

       On cross-examination, Ms. Moore testified that the photograph of the sofa was taken
after August 1, 2011, and possibly in September. She said the sofa was sliced several times
and noted a slice in each cushion and arm.

       Upon this evidence, the Defendant was convicted of rape. This appeal followed.

                                               I

                                Sufficiency of the Evidence

       The Defendant contends that the evidence is insufficient to support his conviction.
He argues the victim’s “scant and questionable” testimony did not provide sufficient
evidence of rape. The State responds that the jury credited the victim’s testimony relative
to the Defendant’s conduct, which provides sufficient evidence to support the conviction.
We agree with the State.

        In determining the sufficiency of the evidence, the standard of review is “whether,
after viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt.”

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Jackson v. Virginia, 443 U.S. 307, 319 (1979); see State v. Vasques, 221 S.W.3d 514, 521
(Tenn. 2007). The State is “afforded the strongest legitimate view of the evidence and all
reasonable inferences” from that evidence. Vasques, 221 S.W.3d at 521. The appellate
courts do not “reweigh or reevaluate the evidence,” and questions regarding “the credibility
of witnesses [and] the weight and value to be given the evidence . . . are resolved by the trier
of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); see State v. Sheffield, 676
S.W.2d 542, 547 (Tenn. 1984).

        “A crime may be established by direct evidence, circumstantial evidence, or a
combination of the two.” State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998); see also State
v. Sutton, 166 S.W.3d 686, 691 (Tenn. 2005). “The standard of review ‘is the same whether
the conviction is based upon direct or circumstantial evidence.’” State v. Dorantes, 331
S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).

       Rape is defined, in relevant part, as the “unlawful sexual penetration of a victim by
the defendant” and “is accomplished without the consent of the victim and the defendant
knows or has reason to know at the time of the penetration that the victim did not consent.”
T.C.A. § 39-13-503(a)(2). Sexual penetration is “sexual intercourse, cunnilingus, fellatio,
anal intercourse, or any other intrusion, however slight, of any part of a person’s body . . .
into the genital or anal openings of the victim’s . . . body, but emission of semen is not
required[.]” Id. § 39-13-501(7) (2010) (amended 2013).

        The record reflects the victim testified that on May 22, 2011, the Defendant awoke
in an agitated state, slit sofa cushions with a knife, smashed a television, and verbally
belittled and degraded the victim. After a verbal exchange, the Defendant threw a drink on
the victim, struck her on the head with his fist, dragged her to the floor by her hair, and
choked her with his hands. Although the Defendant abruptly stopped attacking the victim,
the Defendant pushed the victim onto a bed. The victim testified that the Defendant removed
her shorts, as she attempted to “fight him off.” Although she told the Defendant, “No, stop;
don’t do this,” the Defendant penetrated her vagina with his penis. We conclude that this
evidence is sufficient to support the conviction. The Defendant’s argument focuses on his
belief the victim was not credible, but questions related to witness credibility and the weight
of the evidence were resolved by the jury. The jury’s verdict reflects that it credited the
victim’s testimony that the Defendant penetrated her vagina with his penis and that the
penetration was accomplished without her consent. The Defendant is not entitled to relief
on this basis.




                                              -6-
                                             II

                             Evidence of Domestic Violence

      The Defendant contends that the trial court erred by permitting the State to present
evidence of domestic violence. He argues the probative value of the evidence did not
outweigh its prejudicial effect.

        Relevant evidence is “evidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or less probable than
it would be without the evidence.” Tenn. R. Evid. 401. Relevant evidence, however, “may
be excluded if its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of cumulative evidence.” Tenn. R. Evid. 403.

       Tennessee Rule of Evidence 404(b) prohibits the admission of evidence related to
other crimes, wrongs, or acts offered to show a character trait in order to establish that a
defendant acted in conformity with the trait. Tenn. R. Evid. 404(b). Such evidence, though,
“may . . . be admissible for other purposes,” including, but not limited to, establishing
identity, motive, common scheme or plan, intent, or absence of mistake. Id.; see State v.
McCary, 119 S.W.3d 226, 243 (Tenn. Crim. App. 2003). Before a trial court determines the
admissibility of such evidence,

       (1) The court upon request must hold a hearing outside the jury’s presence;

       (2) The court must determine that a material issue exists other than conduct
       conforming with a character trait and must upon request state on the record the
       material issue, the ruling, and the reasons for admitting the evidence;

       (3) The court must find proof of the other crime, wrong, or act to be clear and
       convincing; and

       (4) The court must exclude the evidence if its probative value is outweighed
       by the danger of unfair prejudice.

Tenn. R. Evid. 404(b)(1)-(4). The standard of review is an abuse of discretion, provided a
trial court substantially complies with the procedural requirements. State v. DuBose, 953
S.W.2d 649, 652 (Tenn. 1997); see State v. Electroplating, Inc., 990 S.W.2d 211 (Tenn.
Crim. App. 1998).



                                             -7-
        Before the trial, the State filed a response to the Defendant’s motion for disclosure of
evidence of other crimes, wrongs, and acts pursuant to Tennessee Rule of Evidence 404(b).
The State disclosed that it intended to present evidence that (1) in August 2011, the
Defendant bit the victim on the forehead and was charged with assault, (2) on January 10,
2011, the Defendant hit the victim in the left eye, which broke her orbital bone and required
surgery to repair, (3) before June 19, 2011, the Defendant beat and cut the victim with a
knife, (4) on July 2, 2011, the Defendant hit the victim and created a disturbance that resulted
in a neighbor’s calling 9-1-1, (5) on July 4, 2011, the Defendant beat the victim, burned her
with a cigarette, and assaulted her with a knife, (6) the Defendant beat the victim for the last
time on July 22, 2011, and (7) the Defendant had sexually assaulted the victim on prior
occasions.

       At the motion hearing, trial counsel stated that given the nature of the case, he
anticipated trial testimony relative to the Defendant and the victim’s relationship problems.
Counsel told the trial court that he and the Defendant understood that the items (1) through
(5) would “come to light” during the trial. Counsel objected to the allegation of previous
sexual assaults, beating the victim for the last time, and “those types of things . . . that would
not satisfy the analysis under 404.” The court clarified that counsel was only objecting to
items (6) and (7).

        The prosecutor argued that although all the items were bad act evidence, some of
which occurred before and some after the alleged rape, the evidence was admissible to show
the relationship between the parties. The prosecutor stated that the jury needed to understand
why the victim did not prosecute the Defendant until August 2011, although the incident
occurred in May. The prosecutor stated that the victim would likely be cross-examined about
the delay and that the victim had an explanation. The prosecutor explained that this was a
domestic violence case and that the Defendant was not being prosecuted as a “typical sex
offender.” Relative to any previous sexual assaults, the victim told the prosecutor that the
incident was not the first time the Defendant had “forcibly sexually penetrated her.”
However, the prosecutor withdrew item (7) because the victim was unable to identify specific
dates of any previous sexual assault. Relative to item (6), the prosecutor stated the evidence
was relevant because the victim recalled when she decided she had endured enough abuse
and because the incident resulted in the victim’s prosecuting the Defendant. The prosecutor
claimed the evidence would only be used to show the victim was credible and the reason she
decided to prosecute the Defendant. The prosecutor also stated that, in part, the victim
decided to prosecute because the victim learned the Defendant was accused of raping another
woman. Although the prosecutor did not intend to present such evidence in her case-in-chief,
she stated she would question the victim about the allegation if the door was opened on
cross-examination. The prosecutor instructed the victim not to mention the previous rape
allegation.

                                               -8-
        The trial court found that items (1) through (6) were admissible. Relative to item (6),
the court found that the July 22, 2011 incident of physical abuse completed the story of the
parties in order for the jury to understand what happened and why the victim did not report
the May incident immediately. The court noted the evidence was “part of a pattern.” The
court found that the probative value of the evidence outweighed any prejudicial effect. The
court excluded any evidence related to item (7).

        The Defendant concedes in his brief that trial counsel “for whatever reason . . . did not
appear to object to the introduction of most of this . . . evidence” and requests that this court
consider the issue as a matter of plain error. The State responds that the Defendant is not
entitled to plain error relief because it is unnecessary to do substantial justice.

       Five factors are relevant

               when deciding whether an error constitutes “plain error” in the
               absence of an objection at trial: “(a) the record must clearly
               establish what occurred in the trial court; (b) a clear and
               unequivocal rule of law must have been breached; (c) a
               substantial right of the accused must have been adversely
               affected; (d) the accused did not waive the issue for tactical
               reasons; and (e) consideration of the error is ‘necessary to do
               substantial justice.’”

State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d 626,
641-42 (Tenn. Crim. App. 1994)). All five factors must exist in order for plain error to be
recognized. Id. at 283. “[C]omplete consideration of all the factors is not necessary when
it is clear from the record that at least one of the factors cannot be established.” Id. In order
for this court to reverse the judgment of a trial court, the error must be “of such a great
magnitude that it probably changed the outcome of the trial.” Id.; Adkisson, 899 S.W.2d at
642.

       Relative to items (1) through (5) of the State’s response under Tennessee Rule of
Evidence 404(b), the record reflects that trial counsel did not object to the admission of the
evidence and noted that he and the Defendant anticipated its admission at the trial. See Tenn.
R. Evid. 103(a)(1) (“Error may not be predicated upon a ruling which admits . . . evidence
unless a substantial right of the party is affected, and . . . a timely objection . . . appears of
record[.]”). The issue is waived, and we conclude that plain error relief is not necessary
because a clear and unequivocal rule of law was not breached. The trial court substantially
complied with the procedural requirements of Rule 404(b) and concluded that the evidence
was relevant to explain why the victim delayed prosecuting the Defendant and that the

                                               -9-
probative value of the evidence was not outweighed by the danger of unfair prejudice. The
court did not abuse its discretion, and the Defendant is not entitled to relief on this basis.

       Although the record reflects that trial counsel objected to the admission of evidence
related to the last incident of physical abuse in item (6), the record reflects that the trial court
did not abuse its discretion by permitting the State to present such evidence. At the pretrial
hearing, the court determined that the relevant and material issue was the victim’s delay in
prosecuting the Defendant and that the evidence was necessary to show why the victim did
not prosecute the rape immediately. The evidence was only used to show the credibility of
the victim and the reason she ultimately decided to prosecute the Defendant. The court,
likewise, concluded that the probative value of the evidence outweighed the danger of unfair
prejudice. The Defendant is not entitled to relief on this basis.

       Relative to evidence of previous sexual assaults in item (7), the record reflects that the
victim told the prosecutor that the incident at issue was not the first time the Defendant had
“forcibly sexually penetrated her.” However, the prosecutor withdrew her request to present
such evidence because the victim was unable to identify specific dates of any previous sexual
assault. As a result, the trial court excluded any reference to previous sexual assaults. The
Defendant, though, argues that the prosecutor, in direct contravention of the court’s ruling,
questioned the victim about previous sexual assaults, which resulted in the victim’s testifying
that the Defendant previously raped her. However, we conclude that the record reflects
otherwise.

        During the victim’s cross-examination, trial counsel questioned the victim about her
failure to report to the police incidents of physical abuse that resulted in the Defendant’s
injuring her. On redirect examination, the following exchanged occurred:

       Q       Were there other occasions that you were injured by [the Defendant]
               that you didn’t report to the police?

       A       Yes.

       ...

       Q       Okay. Were there occasions prior to May 22nd when you were raped
               that you did not report him injuring you?

       A       Yes.

       Q       Can you tell the jury when?

                                               -10-
       A      No. All I know is I would tell him that he’s hurting me and we would
              not stop.

       Q      I guess you misunderstood me. Were there occasions when you had to
              seek medical treatment as a result of his injuries that you did not report
              to the police?

       A      Yes.

       Q      And can you tell the jury about that?

       A      The previous January he hit me in my face, broke four bones, including
              the – the floor that hold your eyeball up. And I have to have surgery,
              eye surgery.

       Q      And did you tell people at the hospital what happened to you?

       A      No.

       Q      Did you tell them something that didn’t happen to you?

       A      Yes.

       Q      What did you tell them?

       A      Told them that I was mugged.

        The record reflects that the prosecutor did not question the victim about previous
incidents of sexual assault in direct contravention of the trial court’s ruling. We note the
prosecutor willingly withdrew her request to present such evidence at the pretrial hearing.
At the trial, the prosecutor attempted to elicit testimony relative to the Defendant’s injuring
the victim on other occasions to explain why the victim delayed the prosecution. The victim
misunderstood the prosecutor’s question, and the prosecutor immediately clarified her
question for the victim. The Defendant is not entitled to relief on this basis.

        In consideration of the foregoing and the record as a whole, we affirm the judgment
of the trial court.
                                           ____________________________________
                                           ROBERT H. MONTGOMERY, JR., JUDGE

                                             -11-
