        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                              December 13, 2011 Session

            STATE OF TENNESSEE v. JONATHAN KYLE HULSE

               Appeal from the Criminal Court for Washington County
                         No. 35271 Robert E. Cupp, Judge




                No. E2011-01292-CCA-R3-CD - Filed March 19, 2013


The Defendant, Jonathan Kyle Hulse, was found guilty by a Washington County Criminal
Court jury of aggravated rape, a Class A felony; especially aggravated kidnapping, a Class
A felony; and unauthorized use of a vehicle, a Class A misdemeanor. See T.C.A. §§ 39-13-
502 (2010) (aggravated rape), 39-13-305 (2010) (especially aggravated kidnapping), 39-14-
106 (2010) (unauthorized use of a vehicle). He was sentenced as a violent offender to
twenty-nine years for each of the Class A felonies and to eleven months and twenty-nine days
for the misdemeanor. The trial court ordered that the felony convictions be served
consecutively, for an effective fifty-eight-year sentence. On appeal, the Defendant contends
that (1) the evidence is insufficient to support the especially aggravated kidnapping
conviction, (2) his dual convictions for aggravated rape and especially aggravated kidnapping
violate due process principles, and (3) the trial court erred in admitting evidence of the
deceased victim’s statements about the crimes as excited utterances. We affirm the
judgments of the trial court.

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

J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which J AMES C URWOOD W ITT,
J R., and J OHN E VERETT W ILLIAMS, JJ., joined.

T. Craig Smith, Johnson City, Tennessee, for the appellant, Jonathan Kyle Hulse.

Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant
Attorney General; Tony Clark, District Attorney General; and Erin D. McArdle and Dennis
Dwayne Brooks, Assistant District Attorneys General, for the appellee, State of Tennessee.
                                          OPINION

        At the time of the trial, the victim was deceased. Emily Upright testified that she was
familiar with the Defendant because she saw him in her neighborhood around the time of the
crimes. She thought he may have been staying with his father, who lived in the
neighborhood. She said the Defendant’s father’s residence was across the road and four
trailers away.

        Ms. Upright testified that after midnight on August 29, 2008, her dog began barking
and that she heard a sound like a truck driving into her trailer. She and her brother went
outside and found the naked victim on the ground near her porch about one-half under her
trailer. She said that her trailer’s paneling was pushed under and that it had not been this way
previously. She said that the naked Defendant stood about fifteen feet away facing her and
the woman on the ground but that he fled in the direction of his father’s trailer when she
looked at him. She said the victim was screaming and appeared to have been stabbed several
times. Regarding the victim’s face, Ms. Upright said, “I’ve never seen anybody look that bad
in my life.” She said the victim’s injuries appeared fresh. She gave the victim a blanket.
The victim could not move but was shaking, was weak and in shock, and had lost a large
amount of blood. She said the victim stated that she had been raped and that the rapist cut
her hair. Ms. Upright said the victim acted as if she thought the Defendant was going to kill
her. After Ms. Upright called 9-1-1, the police and an ambulance arrived.

        Ms. Upright testified that it was dark outside when she encountered the victim and
saw the Defendant. She said she opened a window after it was light outside and saw a
boxcutter in the front yard in front of the window. She notified the police, who responded
to the scene. She said that the boxcutter was not her brother’s or hers and that tools in her
house were locked away because she had a child. She identified photographs of the damaged
underpinning of her trailer, towels she gave the victim, and the victim’s blood on her steps.

        On cross-examination, Ms. Upright testified that she sometimes saw the Defendant
near another trailer when she went to the mailbox. She estimated that she saw him fifteen
to twenty times in the two months before the crimes. She said he played basketball with his
brother outside. She said that they waved at each other and that the Defendant seemed
pleasant. She did not know if the victim injured her face on the underpinning but said the
victim stated she had been stabbed in the stomach. She said the victim stated that she did not
know who stabbed her because the victim had just met him. She said the victim pointed to
the Defendant’s father’s trailer as the location of the crimes. She said that the victim stated
that the man cut her hair and that the victim’s hair was jagged. She acknowledged that she
did not identify the Defendant that night and said she was not sure. She said that after she
calmed down, she concluded that the man she saw was the Defendant. She acknowledged

                                              -2-
that the victim never made a statement that she believed the Defendant would kill her. She
acknowledged that the lighting was not good that night. She said that she had her house
lights, porch light, and some street lights were lit.

        On redirect examination, Ms. Upright testified that the Defendant ran as soon as she
and her brother opened the door. She said the victim stated that she had driven her car to the
trailer park. She identified a photograph of the victim depicting the condition of the victim’s
face when Ms. Upright found her.

       Johnson City Police Patrol Officer Nigel McQueen testified that he responded after
midnight on August 29, 2008, to a call regarding a rape. He said that when he arrived, the
victim was wrapped in a blanket and that both were covered in blood. He described her as
“balled-up.” He said that she was screaming loudly that she had been raped. He said it was
obvious she had been physically assaulted with a sharp object. He could not tell whether she
was wearing any clothes. He spoke with her briefly until the medical personnel arrived. The
victim told him that she drove to the trailer park in her blue Chevrolet Cavalier with her
assailant. The officers searched for the car, but it was not in the neighborhood and a
“BOLO” was ordered.

        On cross-examination, Officer McQueen testified that he did not recall whether he
was told to respond to a rape or an assault. He said that when he arrived, a crowd had
gathered. He said the victim did not identify by name the person she said raped her. He said
that to his knowledge, she did not make any statements about being cut or stabbed or about
her hair being cut. He said he did not pay attention to the underpinning on Ms. Upright’s
trailer. He said that to his knowledge, the victim did not make any statements about hitting
or falling into the underpinning. He had very limited contact with the Uprights but did not
recall them saying anything about the victim’s falling into the trailer. He said it took about
ten minutes for him to arrive at the scene. On redirect examination, Officer McQueen stated
that his responsibilities at the scene did not include taking full statements and that the
investigative unit would have been responsible for taking statements.

       Washington County Sheriff’s Deputy David Cate testified that on August 29, 2008,
around 1:00 a.m., he was responding to a call regarding a prowler when he found the
Defendant sitting alone on the side of the road in a blue Chevrolet Cavalier. He checked the
Defendant’s identification but did not recall what the Defendant said. He said that he
smelled alcohol on the Defendant and that he took the Defendant into custody. He said that
when they “ran the tag [number for the Cavalier,] . . . it came back to switched tags[.]” He
gave the VIN to another officer, and they determined that the car was not registered to the
Defendant. He identified a photograph of the Cavalier. He learned later that Johnson City
authorities wanted the Defendant for rape, and Officer Nikki Salyer transported the

                                              -3-
Defendant to the police department. He identified the Defendant as the person he saw in the
Cavalier.

       On cross-examination, Deputy Cate testified that he saw the Defendant in the Cavalier
near the house where a prowler had been reported. He said that the report was of a white
male without a shirt but that there was no description of a car.

        Washington County Sheriff’s Investigator Nikki Salyer testified that she was working
as a patrol officer on August 29, 2008, when she and another officer responded to a call
regarding a prowler. She said she spoke with the people who made the call. When Deputy
Cate notified her that he found a person, she left the house to assist him. She identified the
Defendant as the person whom Deputy Cate had detained. She thought that the Defendant
told them he was out of gas and that he knocked on the door to try to get help. She said the
Defendant was wearing pants but no shirt. She said that they learned that the Defendant was
a suspect in a crime in Johnson City and that she took him to the Johnson City Police
Department.

       Johnson City Police Investigator Bob Odom testified that he began working on the
case the next morning and went to Ms. Upright’s trailer to collect evidence. He said there
was blood on the steps, bloody towels on the porch and in the front yard, and a boxcutter in
the grass. He photographed the items and collected them. He identified the photographs he
took and the evidence he collected. He said the boxcutter’s blade was not protruding and did
not recall whether the boxcutter had a blade when he collected it. On cross-examination, he
stated that he spoke with the Uprights when he collected the evidence but did not take
statements from them. He did not know whether testing was done on the boxcutter or the
towels.

        Dr. Illuri Reddy testified as an expert in emergency medicine. She said the victim was
brought to the emergency room after midnight on August 29, 2008. She said the victim was
covered in blood from head to toe. Dr. Reddy said that the victim had bruises on the left side
of her face, that her eyelid was almost closed, and that she cried and was anxious. She said
she asked the victim what happened. She said the victim told her that she gave a friend and
the friend’s friend a ride. She said the victim dropped off her friend and took the friend’s
friend home. She said that she helped him get his groceries to the door and that when she
turned to go to her car, he pulled her into the house by her hair, beat her, and raped her.

       Dr. Reddy testified that she examined the victim. She described the victim’s injuries:
extensive bruising of the face, especially the left side, left eye, left side of the forehead, and
middle of the forehead and nose; cuts on the thighs; hemorrhage inside the left eye; and
bruising around the upper thighs and vaginal area. She identified photographs of the victim’s

                                               -4-
injuries. She said she ordered a CAT scan to determine if the victim had head or face
fractures. She said the scan revealed multiple fractures around the eyes and broken nasal
bones. She said the victim had a cut that required stitches. She said a rape kit was
performed. She said the victim received pain medication and was admitted to the hospital
for observation. She said the victim was 5'1" or 5'2" and weighed 110 or 115 pounds. She
said her diagnoses were: physical and sexual assault, multiple facial fractures, head injury,
and multiple lacerations.

        On cross-examination, Dr. Reddy testified that none of the evidence collected for the
rape kit was retained by the hospital and that everything collected was sent away. She said
that bruising on the upper thighs could indicate forceful or vigorous sexual intercourse. She
said that most of the blood on the victim’s body probably came from the victim’s face
because facial cuts bleed a lot. She said that facial lacerations could be caused by a blow
from a fist. She said that a patient’s history of the injury is often used to determine how
facial lacerations were inflicted. She said that after she asked the victim what happened, the
victim said, “I was beat up.” She asked the victim who injured her, and the victim gave her
an account of the events that resulted in her injuries. She said the victim could not name her
assailant but identified him as a male friend of a female friend.

       Dr. Reddy testified that she was unaware if the victim was taking Valium and Lortab.
She said it would have been difficult to determine if the victim was under the influence
because the victim was very agitated. She said she ordered a routine drug test, but none was
completed because the victim was unable to give a urine specimen. She said a rape kit was
used to determine whether a patient had been involved in sexual intercourse and to obtain a
DNA profile of the other person.

        Johnson City Medical Center Nurse Gail Vestal testified that she assisted Dr. Reddy
in the emergency room on August 29, 2008, when the victim was treated. She described the
victim as tearful, upset, and scared. She said the victim was covered in blood and had a
blanket covering her. She said the victim had an avulsion on her head above her eye. She
said a rape kit involved pubic combings, collecting underwear, a pelvic exam, collecting a
cervical and vaginal sample with a swab, collecting a sample from the anal area if the
patient’s history required it, and inspecting for injuries. She said the victim was frightened
and cried the entire time, three to four hours.

       On cross-examination, Nurse Vestal testified that the victim was unable to provide a
urine sample. She said that a blood sample was taken if a doctor ordered it. She said that
drug tests were given based on the doctor’s evaluation of the patient.




                                             -5-
       The victim’s medical records were received by stipulation as an exhibit. They reflect
that the victim recounted details of the crimes to several physicians who recorded her
statements in their reports. One of these reports states:

       The patient reports that they went out the day on the 29th on her way back
       home, a friends of hers, Jerry, and another male that was a friend of Jerry’s that
       she basically did not know, asked her to give them a ride back home. The
       patient agreed to do so and first she dropped her friend Jerry at his house, and
       then went ahead and took the other man to his house. When they got to the last
       guy’s house, he asked her to help with some groceries, bringing in next to his
       door’s apartment. She did so and at that moment he grabbed her around her
       neck and threatened to kill her. He pushed her inside the house and asked her
       to take her clothes off, threatening her with a knife, and stated that he would
       kill her if she did not do so. The patient was subsequently raped by this guy
       who beat her up with his own hands and hitting her head toward the concrete.
       The patient was able later on to leave the man’s house after the sexual assault
       and asked a neighbor for help.

A second report states:

       Patient . . . was admitted last night after [an] assault, including a sexual assault.
       She reports running out of a house, being captured, and drug back down by her
       feet, and striking her face on cement.

Dr. Reddy’s emergency room notes state:

       As per [patient] was in Keystone area with a friend who wanted her to give a
       ride to alleged assailant. [Patient] states she took the assailant to his trailer &
       walked him to it & turned to return to her car when he pulled her back inside
       by her hair & beat h[er] and raped her [illegible] away & ran to the neighbors
       & called 911[.]

Another report states:

       [The victim] stated that she picked up by assailant and one other male to give
       a ride at home when the victim arrived at assailant trailer they pushed her
       down so she fell down and hit her face on the step although she denies any loss
       of conscious level at that time and after that they pushed her inside and she
       alleged that they did the physical and sexual assault with her.



                                                -6-
       Johnson City Police Investigator Teresa Campbell testified that she was working as
a patrol officer on August 29, 2008, when she was dispatched to respond to an alleged rape.
She was assigned to be the primary investigator. She and Investigator Richardson went to
the emergency room and spoke with the victim. She said that a rape kit was performed while
she was there and that she waited outside the examination area for the rape kit. She said she
assisted Investigator Richardson take photographs of the victim.

        Investigator Campbell testified that she and Investigator Richardson went to the
Defendant’s trailer. She said there were several pieces of mail addressed to the Defendant
in a drawer in the bedroom. She said they took photographs inside the trailer. She said there
were bedrooms on either end of the trailer with an open living room and kitchen near the
front door. Using photograph exhibits, she pointed to blood on a mattress and a clump of
reddish-blonde hair on a comforter. She said that the clump of hair resembled the victim’s
hair. She said a pair of jeans that “had been shucked inside-out” with underwear inside them
and a pair of tennis shoes were on the floor in the bedroom. She said a pair of men’s boxer
shorts were also in the bedroom. A bottle of lubricant was on the side of the bed. She said
that a bra was on a tennis shoe and that both were underneath a blanket. She said that
samples were collected of wet blood on the mattress. She identified as exhibits the clothing
and lubricant collected in the Defendant’s bedroom. She identified mail that contained the
Defendant’s return address using the address of the trailer.

       Investigator Campbell identified a photograph depicting the victim’s car, which the
Defendant had driven. She said that the car had blood on the driver’s door armrest and
handle. She collected samples from the car. She said she collected a buccal swab sample
from inside the Defendant’s jaw.

        Investigator Campbell testified that she interviewed the Defendant at about 4:00 a.m.
at the police department. She said the interview was recorded. She thought he wore jeans
and a t-shirt. She said that she collected the Defendant’s jeans as evidence and that there
were specks of blood on them.

        The video recording of the Defendant’s interview was played. In it, the Defendant
said the victim approached him and a couple he knew in a bar and that she left with him
voluntarily after he asked if she wanted to go to his house to drink beer. He identified the
other couple as Crystal Chadwick and her boyfriend, David. He said he drank eight beers
at the bar. He said the victim drank one or two beers at his house. He said that after he told
her he would buy her some crack, she was “all over” him. He said he pretended to make a
telephone call to have someone bring crack to the house. He said that she got on top of him
as he sat in a recliner and that he suggested they go to the bedroom, where they had sex. He
said that afterwards, he told her he was not buying her any crack. He said she became angry

                                             -7-
and cut him with his red boxcutter that was on a table in his house. He said he pushed her
away, smacked the boxcutter from her hand, and hit her face. He thought the victim might
have cut his arm. He said he took the victim’s car keys and left because he was scared. He
denied raping the victim or cutting her hair. He said he was drunk and did not remember
everything.

        On cross-examination, Investigator Campbell testified that she did not recall the rape
kit’s results. She said there were nine places from which blood was collected from the
mattress. She thought it would be difficult for the victim to have “shucked” her pants off in
the manner they were found. She acknowledged that other officers were in the Defendant’s
home before she arrived and the photographs were taken. She did not know why she never
tried to locate the couple from the bar. She did not recall the victim’s identifying her attacker
by name when she spoke to the victim at the hospital. She said the victim claimed to have
picked up two people and dropped off one before taking the Defendant home. She said she
checked a name the victim provided in order to see where the person lived. She said the
person lived in the area where the victim claimed to have dropped off someone. She did not
recall finding a bag of groceries at the Defendant’s house but did not recall the victim’s
telling her about the groceries. She acknowledged that the victim may have said this to
another officer. On redirect examination, she said she had a heavy caseload in 2008. She
said it was common for officers to enter a crime scene to assess it without disturbing it.

        Investigator Bob Odom was recalled and testified that he did not move the boxcutter
before photographing it. He said that after he photographed it, he moved it to show its size
better, placed a scale next to it, and photographed it again. He said the blade was visible
after he moved it. On cross-examination, he said he retracted the blade for safety after
photographing the knife.

       Tennessee Bureau of Investigation Special Agent Bradley Everett testified as an
expert in DNA profiling and serology. He said that the jeans previously identified as the
Defendant’s contained the Defendant’s DNA. He said that the boxcutter contained a mixture
of DNA. He said that he obtained a partial profile of the major contributor and that it was
consistent with the victim’s DNA. The probability of another individual’s DNA having the
same profile was one in 24,870 in the African-American population, one in 9588 in the
Caucasian population, one in 10,390 in the Southeastern Hispanic population, and one in
7943 in the Southwestern Hispanic population.

       Agent Everett testified that the victim’s DNA was on two towels submitted for testing
but that there was no semen on them. Testing of samples from the victim’s car indicated the
presence of human blood with a DNA profile that was consistent with the Defendant’s DNA.
Testing of samples from the Defendant’s mattress indicated the presence of the victim’s and

                                               -8-
the Defendant’s DNA profiles. He said the probability of an unrelated person having the
same DNA profile as either the victim or the Defendant from the African-American,
Caucasian, Southeastern Hispanic, or Southwestern Hispanic populations exceeded the world
population. A sample from the victim’s vagina contained sperm cells, but upon DNA testing,
he could not exclude the Defendant as being a possible contributor of the genetic material.
He said he did not find any semen in the victim’s oral and anal samples.

        On cross-examination, Agent Everett testified that DNA could be recovered from
bodily fluids or, on occasion, from an object a person had touched. He agreed that it was
easier to obtain DNA from a fluid. With respect to the boxcutter, he said that a decision must
be made between searching for fingerprint evidence and searching for DNA evidence. The
boxcutter was tested for DNA evidence at the request of the local police.

       Cindy Simms, the victim’s cousin, testified that she and the victim were best friends.
She said the victim was forty-four when she passed away. She said that she learned of the
crimes when her sister called her and that she visited the victim the morning after the victim
was released from the hospital. She said this was one day after the crimes. She said the
victim was staying with the victim’s sister, Linda Mays. She said that when she saw the
victim’s injuries, she thought she would lose consciousness. She said she hugged the victim,
who said, “He hurt me. He hurt me bad.” She said that they embraced and that the victim
shook hard and cried so much that she had difficulty understanding the victim. She said she
took a long time calming the victim enough to be able to understand her. She said she
encouraged the victim to talk about what happened for the victim’s benefit. Ms. Simms said
she only understood “bits and pieces” because the victim was distraught and childlike.

        Ms. Simms testified that the victim was hysterical and told her, “He hurt me there.”
She said the victim told her she was raped anally and that this was the most upsetting thing
to the victim. She said the victim expressed shame. She said that she asked the victim if her
assailant was someone the victim knew and that the victim stated she did not know the
person and was giving him a ride home. She said the victim stated that she first gave another
person a ride home, that she drove to the assailant’s house, that she walked to the porch and
handed him something, and that he yanked her inside. Ms. Simms said the victim stated that
the assailant took her keys and threw them and “something else” the victim had, that he
dragged her to another room, that he threatened to cut her with a knife unless she undressed,
and that he cut the victim across her leg to show her that he was serious. Ms. Simms stated
that the victim described “the anal thing” and that the assailant made quick motions on her
back with the knife, laughed, and cut her hair. Ms. Simms said the victim stated that she
realized she would die if she did not do something. Ms. Simms said the victim stated that
she fled when the assailant’s back was turned, that she heard the assailant behind her, that
she knocked on the door of a trailer but no one answered, that she felt something touch her

                                             -9-
hair as she fled to another door, that she knocked on the other door, that the assailant grabbed
her by the ankles, and that her face hit the steps. Ms. Simms said the victim stated that some
of her facial injuries probably came from hitting the steps. Ms. Simms said the victim stated
that her assailant dragged her by her leg on the sidewalk as she scratched and pulled the
ground to try to get away. Ms. Simms said that at this point, the victim was hyperventilating
and that she told the victim not to talk about it anymore because the victim was too upset.

       Ms. Simms testified that she maintained contact with the victim until the victim’s
death. She said the victim’s personality changed after the crimes. She said that although the
victim was small in stature, she had been brave until the crimes, after which she was
frightened and physically and mentally “broken.” She said that the victim had been outgoing
and fun-loving but became withdrawn and stayed home more.

      Ms. Simms testified that one or two weeks after the crimes, she was at Linda’s house
when the victim awoke from a nightmare. She said the victim screamed and said, “Don’t let
him get me, don’t let him get me.” She said the victim ran into a wall and fell to the ground.

       On cross-examination, Ms. Simms testified that the victim did not give her details
about the assailant’s telling the victim to undress other than that he told the victim to remove
her shirt and that he finished undressing her. She said it was possible the assailant caught
the victim after the victim knocked on the first door. She said the victim had no memory
from the time her face hit the steps until she was sitting on the sidewalk. Ms. Simms said the
victim reported that an unknown person helped her.

       Kathy Massey, the victim’s sister, testified that she went to the hospital to see the
victim at 3:00 or 4:00 a.m. on the day of the crimes. She said that she was the first family
member to arrive and that a nurse practitioner told her what happened to the victim. She said
that she went into the victim’s room and that the victim cried so hard that the victim could
not talk. She said the victim received medication and fell asleep but awoke crying,
screaming, and fighting. She said that the victim screamed, “Get him off of me,” but that the
victim eventually calmed when she realized Ms. Massey was there. She said the victim
continued this behavior that day and night and the following day. She said the victim also
said, “He’s going to kill me.” She said that the victim’s face was bruised and that several
cuts were on the victim’s legs and back. She said patches of the victim’s hair had been cut.
She said the victim’s hair was “her pride and joy.”

        Linda Mays, another of the victim’s sisters, testified that the victim stayed with her
for at least two or three months after being released from the hospital. She said that the
victim had been a sound sleeper before the crimes but that after the crimes, the victim had
nightmares and awoke screaming, crying, and yelling things like “No, no.” Ms. Mays said

                                              -10-
this happened several times. She said that before the crimes, the victim was not fearful and
was outgoing but that afterwards, the victim was scared of the dark and did not want anything
to do with men. She said that if she had company, the victim went to another room. She
thought the victim’s fears might have improved slightly when the victim was with her
husband but that the victim was not the same person after the crimes.

        On cross-examination, Ms. Mays testified that the victim came to stay at her house
five to seven days after the crimes. She said the victim’s husband was in jail at the time. She
said that the victim stayed at her house occasionally and that the victim stayed with her for
a couple of nights when the victim’s husband went to jail two or three weeks before the
crimes. She said the victim had stayed in her home on other previous occasions.

       Billy Bales, the victim’s widower, testified that he and the victim were together for
fourteen years until her death and that the victim had two children from a previous
relationship. He said he was serving a sentence for a probation violation in the Carter County
Jail when the victim reported being raped. He said the night of the crimes was the first night
he was away from home. He said that after he served his sentence, he and the victim lived
together at their home. He said the victim’s personality changed after the crimes. He said
she was scared, had trouble sleeping, was afraid of the dark, would not go outside, and was
withdrawn and depressed. He said the victim would no longer talk to him when he asked her
what was wrong. He said that their physical relationship changed, that the victim could not
touch or kiss him, and that he could not hug her. He said they were no longer able to have
sexual relations. He said that when he came home three and one-half months after the
crimes, the victim’s physical injuries were healing but that she could not look at herself in
a mirror. He said she removed all of the mirrors in the house. He said she no longer slept
through the night, kept the lights on, and only slept during the day for a time. He said the
victim sometimes jerked and flailed her arms in her sleep and awoke screaming, slapping,
and hitting him. He said that this happened nightly for about one year and that over time, she
became less physical but still awoke in a hysterical state.

        Mr. Bales identified a photograph of the victim’s car. He said he paid $700 for it and
installed an ignition that cost $240. He did not recall whether the car was titled in his or the
victim’s name but said it was her car. He identified the victim’s shoes, pants, and underwear
in previously admitted photograph exhibits. He also identified her hair in a photograph.

        On cross-examination, Mr. Bales testified that he and the victim had a good
relationship before the crimes. He said that they had separated about one year earlier but that
he felt like they had reconciled. He did not know why the victim was in Johnson City on the
night of the crimes. He said the victim did not want to stay home alone but was not upset
about the underlying crime for his probation violation. He acknowledged that he had

                                              -11-
multiple DUI convictions. He agreed he knew before first seeing the photographs that they
were from the crimes against his wife. The State rested.

       Crystal Chapman testified for the defense that she had known the Defendant for about
twenty years and that she had dated his brother. She said that on the evening of the offenses,
the Defendant called to invite her and her then-boyfriend, David Murphy, to meet him at a
bar. She said the Defendant was already at the bar when they arrived around 10:00 to 10:30
p.m. She said that a woman arrived about fifteen minutes later and that she and the woman
began a conversation about ten minutes later. While the Defendant, Mr. Murphy, and she
were seated at a booth, the woman asked if she could sit with them. She also said that she
offered for the woman to sit with them. She said that none of them knew the woman, who
was alone. The woman sat next to the Defendant. Ms. Chapman said they were together at
the bar for about one and one-half hours drinking beer. She said that the Defendant invited
them to his house for drinks but that she and Mr. Murphy declined. She was unsure about
the time they left but estimated it was around midnight or 1:00 a.m. She said the Defendant
and the woman left together. She said the woman seemed willing to leave with the
Defendant and did not need coaxing.

       On cross-examination, Ms. Chapman testified that she did not know how the
Defendant got to the bar. She thought he arrived shortly before she and Mr. Murphy did.
She did not know that the victim was admitted to the emergency room at 12:54 a.m. She did
not see either the Defendant or the woman after they left together. On redirect examination,
she agreed that they left the bar after midnight and that her time estimate might be inaccurate.

        David Murphy testified that he was involved with Ms. Chapman on the night of the
offenses. He said they agreed to meet the Defendant at a bar. He said he had met the
Defendant once before that night and did not really know him. He said that they arrived at
the bar around 10:00 p.m. and that the Defendant was already there or arrived shortly
thereafter. He said he did not drink. He said that the Defendant and Ms. Chapman drank that
night but that he did not think they drank excessively. He said a woman whom none of them
knew joined their group. He said that he and Ms. Chapman left about forty-five minutes after
they arrived. He thought they left before midnight. He said the Defendant and the woman
left together. He said the woman left willingly. He thought Ms. Chapman might have gone
outside with the Defendant and the woman for a few minutes.

       On cross-examination, Mr. Murphy testified that he was unsure if the woman was at
the bar the entire forty-five minutes he and Ms. Chapman were there and thought she
probably arrived after they arrived. He said she was petite and seemed nice. He said he was
not drinking or taking drugs that night. He did not remember how the Defendant got to the
bar. He did not think the Defendant was intoxicated.

                                              -12-
        After receiving the proof, the jury found the Defendant guilty of the charged offenses
of aggravated rape by vaginal penetration and especially aggravated kidnapping. It found
him guilty of unauthorized use of a vehicle as a lesser included offense of theft of property.
It acquitted him of aggravated rape by anal penetration. After the court imposed an effective
fifty-eight-year sentence, the Defendant appealed.

                                             I & II

        The Defendant contends that the evidence is insufficient to support his conviction for
especially aggravated kidnapping. Resolution of the issue involves his contention in a
separate issue that due process principles are violated by convictions for both especially
aggravated kidnapping and aggravated rape. The State contends that the evidence is
sufficient to support the especially aggravated kidnapping conviction and that dual
convictions for especially aggravated kidnapping and aggravated rape are proper. We
conclude that the proof supports a conviction for especially aggravated kidnapping and that
the proof supports dual convictions of especially aggravated kidnapping and aggravated rape.
We also conclude that the jury was not properly instructed that in order to convict the
Defendant of especially aggravated kidnapping, it must find that the Defendant substantially
interfered with the victim’s liberty in a way that was not essentially incidental to the rape but
that the error was harmless beyond a reasonable doubt.

                               A. Sufficiency of the Evidence

       Our standard of review when the sufficiency of the evidence is questioned on appeal
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.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). We do not reweigh the
evidence but presume that the trier of fact has resolved all conflicts in the testimony and
drawn all reasonable inferences from the evidence in favor of the State. See State v.
Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835
(Tenn. 1978). Questions about witness credibility are resolved by the jury. See State v.
Bland, 958 S .W.2d 651, 659 (Tenn. 1997).

       Relevant to this case, especially aggravated kidnapping “is false imprisonment . . .
[a]ccomplished with a deadly weapon or by display of an article used or fashioned to lead the
victim to reasonably believe it to be a deadly weapon[.]” T.C.A. § 39-13-305(a)(1) (2010).
“A person commits . . . false imprisonment who knowingly removes or confines another
unlawfully so as to interfere substantially with the other’s liberty.” Id. § 39-13-302(a).




                                              -13-
        The Defendant argues that the evidence is insufficient to support the conviction
because his DNA was not identified on the boxcutter. We do not view the lack of DNA
evidence as meaningful. The record reflects that a red boxcutter was found outside Ms.
Upright’s home, where the victim was found and where the Defendant was seen hours
earlier. The Defendant admitted that the boxcutter was his and that he “may have” cut the
victim with it earlier when they were inside the trailer. That said, further analysis is
necessary to address the question of the sufficiency of the evidence.

        The victim took the Defendant to his home and helped him carry something to the
door. He pulled her inside, threatened her life, took her car keys, cut her skin and hair with
a boxcutter, beat her, took her into a bedroom, and sexually assaulted her. After the assault,
the naked victim thought the Defendant would kill her and fled outside when the Defendant
turned away. She went to the door of another trailer as the Defendant chased her but was
unable to get help. She ran to Ms. Upright’s home. The Defendant grabbed her ankles,
caused her to fall and strike her head on some stairs, and dragged her by her feet along the
sidewalk. When Ms. Upright came to the door, the victim was about halfway under the
trailer and the trailer’s underpinning was damaged. A naked man, whom Ms. Upright later
identified as the Defendant, was standing about fifteen feet away and fled toward the
Defendant’s home when she saw him. The Defendant left the scene in the victim’s car. A
red boxcutter was found on the ground outside Ms. Upright’s trailer. The victim had
extensive facial bruising and cuts on her legs and back. She had multiple facial fractures
around her eyes and broken bones in her nose.

       Were there not a separate aggravated rape charge to consider, we would conclude that
this evidence is sufficient to support the especially aggravated kidnapping conviction.
Because there is an aggravated rape charge, though, resolution of whether the evidence is
sufficient to support the especially aggravated kidnapping conviction is complicated by the
separate charge of aggravated rape. Conviction of both offenses is appropriate only if the
removal or confinement of the victim was not essentially incidental to the victim’s rape.

                                       B. Due Process

        As a further component of our sufficiency of the evidence review, we turn to the
Defendant’s due process issue. After the parties filed their briefs and argued this case orally,
our supreme court overruled the existing caselaw providing the due process analysis to be
applied upon appellate review of dual convictions of kidnapping and an accompanying
felony. See State v. White, 362 S.W.3d 559, 578 (Tenn. 2012) (overruling State v.
Richardson, 251 S.W.3d 438 (Tenn. 2008); State v. Fuller, 172 S.W.3d. 533 (Tenn. 2005);
State v. Cozart, 54 S.W.3d 242 (Tenn. 2001); State v. Dixon, 957 S.W.2d 532 (Tenn. 1997);
State v. Anthony, 817 S.W.2d 299 (Tenn. 1991)). Previously, an appellate court was required

                                              -14-
to conduct a due process inquiry in order to determine whether dual convictions were
constitutionally permissible. See, e.g., Richardson, 251 S.W.3d 438. In White, the court said
that a separate appellate due process analysis is not necessary. The court held that the
inquiry “is a question for the jury after the appropriate instructions,” with appellate review
of the sufficiency of the evidence serving as the due process protection. White, 362 S.W.3d
at 577-78. The supreme court provided a jury instruction regarding the “substantial
interference” element of kidnapping:

       To establish whether the defendant’s removal or confinement of the victim
       constituted a substantial interference with his or her liberty, the State must
       prove that the removal or confinement was to a greater degree than that
       necessary to commit the offense of [insert offense], which is the other offense
       charged in this case. In making this determination, you may consider all the
       relevant facts and circumstances of the case, including, but not limited to, the
       following factors:

              • the nature and duration of the victim’s removal or confinement
              by the defendant;

              • whether the removal or confinement occurred during the
              commission of the separate offense;

              • whether the interference with the victim’s liberty was inherent
              in the nature of the separate offense;

              • whether the removal or confinement prevented the victim from
              summoning assistance, although the defendant need not have
              succeeded in preventing the victim from doing so;

              • whether the removal or confinement reduced the defendant’s
              risk of detection, although the defendant need not have
              succeeded in this objective; and

              • whether the removal or confinement created a significant
              danger or increased the victim’s risk of harm independent of that
              posed by the separate offense.

Id. at 580-81 (“We invite the Tennessee Pattern Jury Instruction Committee to promulgate
a pattern jury instruction for those trials in which a defendant is indicted for kidnapping and



                                             -15-
an accompanying felony. Until the development of an appropriate instruction, however, the
language articulated herein shall apply.”) (footnotes omitted).

        Under White, an instruction is required if the proof “fairly raised” a question of
whether there was a kidnapping offense separate from the accompanying felony. See State
v. Bennie Osby, No. W2012-00408-CCA-R3-CD, slip op. at 8 (Tenn. Crim. App. Nov. 2,
2012), perm. app. filed (Tenn. Dec. 11, 2012). In this pre-White case, the jury was not so
instructed. There was evidence that the Defendant pulled the victim into the trailer, took her
car keys, threatened her life, cut her with a knife, chased her as she fled to seek help from
neighbors, grabbed her by her ankles as she attempted to reach Ms. Upright’s door, and
pulled her across the sidewalk. The Defendant argues in his brief that the only facts relevant
to the kidnapping are those occurring before the victim fled the trailer, where the victim said
the rape occurred. We note that kidnapping is a continuous crime. State v. Legg, 9 S.W.3d
111, 117 (Tenn. 1999) (“[A]n act of removal or confinement does not end merely upon the
initial restraint, and a defendant continues to commit the crime [of kidnapping] at every
moment the victim’s liberty is taken.”); see State v. Campbell, 245 S.W.3d 331, 337 (Tenn.
2008) (noting the court’s conclusion in Legg that the crime of kidnapping “continued until
[the victim’s] liberty was restored”). This court has taken an expansive view of kidnapping.
See State v. Evangeline Combs and Joseph D. Combs, Nos. E2000-02801-CCA-R3-CD and
E2000-02800-CCA-R3-CD (Tenn. Crim. App. Sept. 25, 2002) (stating in a case involving
kidnapping arising from seven years of enslavement and torture, “we reject the Defendants’
argument that no confinement was proved because she escaped on three occasions and
voluntarily returned twice”), perm. app. denied (Tenn. Jan. 27, 2003).

        Upon review, we conclude that the facts demonstrate that the Defendant’s actions
fairly raised the issue of whether they were incidental to the aggravated rape. A separate jury
issue was raised regarding whether the offense of especially aggravated kidnapping occurred.
The absence of the White jury instruction was error.

        The question becomes, then, whether the error was harmless beyond a reasonable
doubt. See White, 362 S.W.3d at 580 n.20 (“Because we cannot conclude beyond a
reasonable doubt that the jury verdict would have been the same absent the instructional
error, we cannot find the error harmless.”); Bennie Osby, slip op. at 9 (applying harmless
beyond a reasonable doubt standard to omission of White instruction). Given the evidence
in this case, we conclude that the State’s evidence was so overwhelming as to assure that the
White instructional error was harmless beyond a reasonable doubt. See White, 368 S.W.3d
at 580-81 (concluding that absence of the White instruction was not harmless beyond a
reasonable doubt where there was not overwhelming proof that the victims’ removal or
confinement went beyond that necessary to accomplish the accompanying felonies); see also
Antonio Richardson v. Ronald Colson, Warden, No. 3:12-CV-409 (M.D. Tenn. July 9, 2012)

                                             -16-
(stating that the decision in White was largely dependent on the appellate court’s
determination that the evidence was equivocal regarding whether the victim’s movement or
confinement was essentially incidental to the robbery, whereas the evidence in the case
before the court was not equivocal).

        The facts support a conclusion that the Defendant’s chasing the victim was not in
order to accomplish the rape, which had already occurred, nor was it inherent in the then-
completed aggravated rape. His chasing her kept her from retrieving her car keys, which he
had taken from her and thrown inside his trailer. The facts also support a conclusion that the
Defendant’s actions created significant danger or risk of harm. He chased the victim with
the boxcutter, having already demonstrated his intent and willingness to cut her and having
threatened her life. As the victim reached Ms. Upright’s trailer, the Defendant grabbed her
ankles, causing her to sustain significant injuries to her head, and pulled her down the
sidewalk, preventing her from summoning help. A jury could find that Ms. Upright’s
investigation of the noise she heard outside was a fortuitous intervening circumstance that
frightened the Defendant into abandoning his further removal or confinement of the victim
after the rape. The only reasonable conclusion to be drawn from the evidence is that the
Defendant’s actions were well beyond that necessary to consummate the rape. The lack of
the White instruction was harmless beyond a reasonable doubt.

                                   C. Election of Offenses

        As part of our analysis, we have considered whether the State had an obligation to
elect facts upon which it relied as proof of especially aggravated kidnapping based upon a
theory that the proof demonstrated two possible kidnapping episodes. See, e.g., State v.
Brown, 762 S.W.2d 135, 137 (Tenn. 1998) (requiring election of offenses to ensure juror
unanimity); State v. Walton, 958 S.W.2d 724, 727 (Tenn. 1997); State v. Shelton, 851
S.W.2d 134, 136 (Tenn. 1993); Burlison v. State, 501 S.W.2d 801, 804 (Tenn. 1973). As we
have noted, the Defendant argues in his brief for a narrow view of the facts that ignores the
Defendant’s restraint of the victim after she fled his trailer. At oral argument, the Defendant
urged us to consider the events that occurred after the victim fled as a new set of facts
demonstrating an attempted aggravated kidnapping separate from a kidnapping that was
merely incidental to the rape. The State argues in its brief that the evidence is sufficient to
support the especially aggravated kidnapping conviction based upon evidence that the
Defendant threatened the victim with a knife inside the trailer, that he admitted he may have
cut her with a box cutter inside the trailer, and that he chased her when she escaped the trailer
and dragged her down the sidewalk. The State also argues that due process permitted dual
convictions of aggravated rape and especially aggravated kidnapping based upon the
Defendant’s actions after the victim fled the trailer. At oral argument, the State



                                              -17-
acknowledged the inconsistent positions taken in its brief but relied upon the events outside
the trailer as proof of an especially aggravated kidnapping separate from the aggravated rape.

       As we have noted, Tennessee courts take an expansive view of kidnapping. Because
we have concluded that the facts demonstrated a single kidnapping from a continuing course
of conduct, we conclude that there was no issue regarding election of kidnapping offenses.

        In summary, there is sufficient evidence to support a separate conviction of especially
aggravated kidnapping. The lack of a White instruction regarding whether there were
separate offenses of aggravated rape and especially aggravated kidnapping was harmless
beyond a reasonable doubt. The State was not required to elect a set of facts upon which it
relied to support the especially aggravated kidnapping charge. The Defendant is not entitled
to relief.

                                              III

        The Defendant contends that the trial court erred in admitting hearsay testimony
regarding the victim’s statements to Ms. Simms. The State counters that the trial court did
not abuse its discretion in admitting the evidence, but even if it did, the error was harmless
because Ms. Simms’s testimony was “largely cumulative” of other evidence. We conclude
that the trial court erred in admitting the evidence but that the error was harmless.

         “‘Hearsay’ is a statement, other than one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the matter asserted.” Tenn. R. Evid.
801(c). Hearsay is not admissible unless admission is authorized by the evidence rules or by
other controlling provisions of law. Id. at 802. One exception to the hearsay rule is for an
excited utterance, “[a] statement relating to a startling event or condition made while the
declarant was under the stress of excitement caused by the event or condition.” Id. at 803(2).
Our supreme court has stated three prerequisites to admission pursuant to the excited
utterance exception:

       The first requirement is “a startling event or condition” that “‘suspend[s] the
       normal, reflective thought processes of the declarant.’” State v. Stout, 46
       S.W.3d 689, 699 (Tenn. 2001) (quoting State v. Gordon, 952 S.W.2d 817, 820
       (Tenn. 1997)) (other internal quotations omitted) [(abrogated by statute on
       other grounds as stated in State v. Odom, 137 S.W.3d 572, 580-81 (Tenn.
       2004))]. Second, the statement must “relate to” the startling event or
       condition. Id. This broad requirement offers “considerable leeway” such that
       “the statement may describe all or part of the event or condition, or deal with
       the effect or impact of that event or condition.” Gordon, 952 S.W.2d at 820

                                              -18-
       (quotation omitted); [Neil P.] Cohen et al., [Tennessee Law of Evidence (5th
       ed. 2005)] § 8.07[3][c], at 8-76. The third and final requirement dictates that
       the declarant make the statement while “under the stress or excitement from
       the event or condition.” Stout, 46 S.W.3d at 699-700. This requirement
       considers a variety of factors, including the interval of time between the
       startling event and the statement. Id. at 700.

State v. Franklin, 308 S.W.3d 799, 823 (Tenn. 2010) (footnotes omitted).

       The record reflects that the victim’s statements to Ms. Simms were made on two
occasions. First, the victim talked to Ms. Simms shortly after the victim’s hospital release.
Second, Ms. Simms was at Ms. Mays’s house a week or two later when the victim awoke
from a nightmare and made statements.

       Regarding the victim’s statements on the morning after her release from the hospital,
we note that the crimes occurred in the late night hours of August 28, 2008, or the early
morning hours of August 29, 2008. The hospital records reflect that the victim was admitted
on August 29 at 12:54 a.m. and that she was discharged on August 30, 2008 at 2:30 p.m. Ms.
Simms testified that she did not visit the victim at the hospital and that she saw the victim the
morning after the victim’s hospital release. She also said that this was the day after the
victim was attacked. Based upon the hospital records and Ms. Simms’s statement that the
conversation occurred when she visited the victim at Ms. Mays’s house the morning after the
victim’s hospital release, we conclude that the victim’s first statements to Ms. Simms
occurred on the morning of August 31.

        The Defendant argues that the emotional event that precipitated the victim’s
statements about the crimes was the victim’s seeing Ms. Simms. The State contends that the
startling event was the rape and kidnapping. Ms. Simms testified that when she first saw the
victim, she felt as if she would faint. She said that she put her arms around the victim and
that the victim said, “He hurt me. He hurt me bad.” She then testified:

       Q.       Let me slow you down just a second. You come in the door, could you
       tell if there’s anything wrong with [the victim]?

       A.     Oh, yeah. I didn’t recognize her her face was so bad.

       Q.     And how did she react to you coming in, did she see you come in?

       A.     Yes. She went to try to get up and I made it to her and I said, “It’s
       okay. I’m here.” And that’s when she wrapped her arms around me and then

                                              -19-
       she started shaking real bad, crying so bad I couldn’t hardly understand the
       words she would say[.]

The trial court considered the victim’s seeing Ms. Simms to be the startling event that
precipitated the victim’s emotional response and statements. We must defer to the trial
court’s factual findings of predicate facts regarding the application of an exception to the
hearsay rule. State v. Gilley, 297 S.W.3d 739, 761 (Tenn. Crim. App. 2008). The evidence
does not preponderate against the court’s determination in this regard. See id.

         The question of whether the resulting statements were related to the startling event is
more difficult. Our supreme court has said that although the startling event is typically the
act at issue in the case, a “subsequent startling event or condition which is related to the prior
event can produce an excited utterance.” Gordon, 952 S.W.2d at 820.

        In Gordon, the three-year-old aggravated rape victim cried out in pain on two
occasions when trying to use the restroom. When her mother saw evidence of injury and
blood inside the victim’s vagina, she asked the victim, “Who made you hurt like this?” The
victim identified the defendant. The supreme court said that “the victim’s painful urination
was a sufficiently serious and startling event under the rule.” Id. at 821. After determining
that the evidence met the other criteria for admissibility, it concluded that the trial court did
not abuse its discretion in admitting the evidence. Id. Gordon emphasized that the time
interval between the startling event and the statements is not determinative. Id. at 820.
Rather, the time interval is one consideration in determining if the statement was made under
the stress of excitement. Id.; see also Stout, 46 S.W.3d at 699-700.

        One of the cases upon which Gordon relied was United States v. Napier, 518 F.2d 316
(9th Cir. 1975), in which the victim was kidnapped and severely assaulted, causing brain
damage that hindered her ability to communicate except with simple words and phrases.
About one week after the victim was released from her seven-week hospitalization that
included two brain surgeries, her sister showed her a newspaper article and photograph of
the defendant. Upon seeing the photograph, the victim became distressed and said clearly,
“He killed me, he killed me.” In determining that the trial court properly admitted the
evidence as an excited utterance under Federal Rule of Evidence 803(2), the appellate court
rejected the defendant’s argument that the evidence should have been excluded because it
was not made under the stress of excitement of the assault. Id. at 317-18. Rather, the
evidence that the victim identified the defendant as her assailant was admissible because it
related to the stress of excitement of seeing the photograph. See id.; Gordon, 952 S.W.2d
at 819.




                                               -20-
       In the present case, the startling event that preceded the victim’s statements was the
victim’s seeing Ms. Simms. Although the victim became distraught and made statements
about the rape and kidnapping upon seeing Ms. Simms, unlike Gordon and Napier, there is
nothing in this case linking the startling event to the subject of the statements. In Gordon,
the victim’s painful attempts to use the restroom prompted her to identify the person who
caused the injuries that resulted in her pain. In Napier, the victim’s viewing the defendant’s
photograph related to the defendant’s identity as the person who injured her. Because the
evidence does not demonstrate any connection between the startling event of seeing Ms.
Simms and the subsequent statements about the rape and kidnapping, the evidence should
not have been admitted as an excited utterance.

        The second admission of evidence of this nature involved Ms. Simms’s testimony that
she was present when the victim awoke from a nightmare, screamed, said, “Don’t let him get
me, don’t let him get me,” and fell after running into a wall. Aside from stating that this
statement was made even later than the earlier statements to Ms. Simms, the Defendant does
not explain why this evidence was inadmissible as an excited utterance. We note that the
victim’s statement was made under the stress of excitement of a nightmare. In the context
of the victim’s changes in her sleeping habits and difficulty sleeping following the crimes,
the statement “deal[t] with the effect or impact of the [startling] event or condition.” See
Gordon, 952 S.W.2d at 820. The evidence of the victim’s agitation when she awoke and
made the statement demonstrates that the statement was made while “under the stress or
excitement from the event or condition.” Stout, 46 S.W.3d at 699-700. The trial court did
not err in admitting the evidence as an excited utterance.

        The Defendant argues, though, that the Ms. Simms’s testimony about the victim’s
statements should have been excluded under Tennessee Rule of Evidence 403, which
provides that relevant evidence “may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the
jury[.]” Tenn. R. Evid. 403. Prejudicial evidence is not excluded as a matter of law. State
v. Carruthers, 35 S.W.3d 516, 577 (Tenn. 2000) (citing State v. Gentry, 881 S.W.2d 1, 6
(Tenn. Crim. App. 1993)). The term “undue prejudice” has been defined as “‘[a]n undue
tendency to suggest decision on an improper basis, commonly, though not necessarily, an
emotional one.’” State v. Banks, 564 S.W.2d 947, 951 (Tenn. 1978) (quoting Fed. R. Evid.
403, advisory comm’n notes).

       The Defendant argues that Ms. Simms was “an extremely emotional witness” and that
her testimony “delivered a significant amount of ‘emotionally charged’ testimony to the
jury.” We note that the appellate record does not reflect that Ms. Simms engaged in any
emotionally prejudicial conduct during her testimony, nor did the Defendant make a
contemporaneous objection to her testimony on this basis. With regard to whether her

                                             -21-
testimony about the nightmare and accompanying statement was unfairly prejudicial, we
conclude that the trial court did not abuse its discretion in ruling that the probative value of
the evidence was not substantially outweighed by the danger of unfair prejudice. The
evidence was probative of whether the victim was raped and kidnapped, particularly when
viewed in conjunction with other evidence that she had previously been a sound sleeper but
experienced serious sleep disturbances after the crimes.

       Having concluded that the trial court erred in admitting Ms. Simms’s testimony about
the victim’s statements on August 31 as the victim’s excited utterances but did not err in
admitting Ms. Simms’s testimony about the victim’s excited utterances after awaking from
a nightmare, we will consider whether the evidentiary error was harmful, i.e., an “error
involving a substantial right more probably than not affected the judgment or would result
in prejudice to the judicial process[.]” T.R.A.P. 36(b). The victim’s statements in Ms.
Simms’s testimony were substantially the same as multiple statements the victim gave to
various physicians at the hospital shortly after the crimes. The victim’s medical records were
received as an exhibit and included the physicians’ reports summarizing the victim’s
statements to them about the facts of the crime. The records were properly received as
statements made for the purposes of medical diagnosis and treatment. See Tenn. R. Evid.
803(4). The Rule provides that a statement about the “inception or general character of the
cause or external source thereof insofar as reasonably pertinent to diagnosis and treatment”
is admissible as a hearsay exception. Id. Because Ms. Simms’s testimony about the victim’s
statements on August 31 was the subject of and consistent with other admissible evidence,
we conclude that the error was harmless.

       In consideration of the foregoing and the record as a whole, the judgments of the trail
court are affirmed.

                                            ___________________________________
                                            JOSEPH M. TIPTON, PRESIDING JUDGE




                                              -22-
