         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT JACKSON             FILED
                      FEBRUARY 1999 SESSION         March 12, 1999

                                                  Cecil Crowson, Jr.
                                                   Appellate C ourt Clerk
STATE OF TENNESSEE,             )
                                )    NO. 02C01-9804-CR-00114
      Appellee,                 )
                                )    SHELBY COUNTY
VS.                             )
                                )    HON. W. FRED AXLEY,
TOMMY NUNLEY,                   )    JUDGE
                                )
      Appellant.                )    (Aggravated Rape)



FOR THE APPELLANT:                   FOR THE APPELLEE:

BRETT B. STEIN                       JOHN KNOX WALKUP
236 Adams Avenue                     Attorney General and Reporter
Memphis, TN 38103-1922
                                     J. ROSS DYER
                                     Assistant Attorney General
                                     Cordell Hull Building, 2nd Floor
                                     425 Fifth Avenue North
                                     Nashville, TN 37243-0493

                                     WILLIAM L. GIBBONS
                                     District Attorney General

                                     DAVID B. SHAPIRO
                                     Assistant District Attorney General
                                     Criminal Justice Center
                                     201 Poplar Avenue, Suite 301
                                     Memphis, TN 38103-1947




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                             OPINION

         A Shelby County jury convicted defendant, Tommy Nunley, of aggravated

rape, a Class A Felony. The trial court sentenced defendant as a Range I standard

offender to the maximum sentence of twenty-five years. Defendant raises four

issues in this appeal as of right:

         (1)        whether the trial court erred in allowing into evidence a
                    report prepared by the nurse clinician who examined
                    the victim;

         (2)        whether the trial court erred in allowing the nurse
                    clinician to testify that the injuries she observed on the
                    victim were the product of forcible penetration;

         (3)        whether the trial court erred in allowing rebuttal
                    testimony by the victim; and

         (4)        whether the trial court sentenced defendant properly.

We find no reversible error and AFFIRM the judgment and sentence of the trial

court.



                                             I. FACTS

         On January 17, 1996, thirteen-year-old L.L.1 was brought home sick from

school by her uncle. When she arrived at the residence which was shared by

several family members, including the defendant who is her cousin, L.L. went to her

grandmother’s bedroom to rest. About fifteen minutes later, her grandmother and

several family members went to lunch. Only defendant and L.L. remained at the

residence.

         Some minutes later, defendant entered the room where L.L. was resting. He

rubbed her breast and vagina with his hand, and pulled down her pants and

underwear. She tried to get away, but defendant pulled her back by the leg. He

then tore his own shorts to reveal his penis and penetrated her.

         Once finished, defendant remained on top of L.L. for a few moments before

“eas[ing] out” and L.L. saw “white slimy stuff and blood” on the sheets. Defendant




         1
             It is the policy of this Court not to identify minor victims of sexual abuse.

                                                  2
ordered her to go wash. He tried to clean the sheets with a paper towel, then took

the sheets off the bed and put them in the washing machine.

       When defendant took his shower a short time later, L.L. contacted her

mother, Rita Jones, and told her what happened. Jones told her to get out of the

house. L.L. gathered her things to leave and told defendant she was going to a

friend’s house to study. L.L.’s aunt arrived and took L.L. to see her mother.

       Jones called the police, and officers took L.L. to the City of Memphis Sexual

Assault Center where nurse clinician, Elizabeth Thomas, examined her. Thomas’

examination revealed bleeding from the vagina, bruise-like coloration of the skin

around the urethra and hymen, a hematoma on the hymen, two lacerations through

the hymenal tissue, and a third laceration in the posterior fourchette.

       Based upon this evidence, the jury convicted defendant of aggravated rape

as a result of the unlawful and forcible sexual penetration causing bodily injury to

the victim. Tenn. Code Ann. § 39-13-502(a)(2).



                           II. EXAMINATION REPORT

       Defendant assigns as error the admission into evidence of the clinical report

made by Elizabeth Thomas while she examined the victim. First, defendant claims

Thomas used the report solely to refresh her recollection. As such, there would be

no reason for the report’s introduction into evidence. Second, the document

contains words indicating the victim was criminally assaulted, which defendant

claims warrants its exclusion.



                    A. Use of Report by Elizabeth Thomas

       A report, generally, may be used by a witness for the purpose of refreshing

his or her recollection. See Tenn. R. Evid. 612. A writing used in this manner can

be entered into evidence by the adverse party. Id. However, in the case of a

document kept in the normal course of business, the Rules of Evidence provide a

clear-cut exception to the hearsay rule, making such document admissible. Tenn.

R. Evid. 803(6).



                                         3
       At trial, the prosecution tendered nurse clinician, Elizabeth Thomas, as an

expert witness based upon her background, training, and experience. The defense

did not object, and the trial court declared her to be an expert. Thomas testified that

she examined the victim and simultaneously filled out a report. She made notes in

her own writing and signed the report. Over defendant’s objection, exact copies of

that report were entered into evidence and distributed to the jury. Thomas reviewed

and explained the report and notes line by line.

       It is clear from the record that reports and notes of the type at issue are

routinely made in the normal course of examining victims at the Sexual Assault

Center. Furthermore, it is clear that Thomas used the notes as an aid to the jury’s

understanding of her testimony, not merely to refresh her recollection. The report

and notes, therefore, fall within the exception of Rule 803(6) and were properly

admitted.

       This issue has no merit.



                               B. Report’s Content

       On page two of the examination report, there is the statement that L.L.

“reports vaginal assault (penile) and attempted anal assault by 32 [year old] cousin.”

Defendant avers that admission of this statement is improper.

       Tenn. R. Evid. 803(4) provides that “[s]tatements made for purposes of

medical diagnosis and treatment describing. . . the inception or general character

of the cause or external source thereof insofar as reasonably pertinent to diagnosis

and treatment” are admissible. The statement was properly admitted. See State

v. Stinnett, 958 S.W.2d 329, 332 (Tenn. 1997); State v. McLeod, 937 S.W.2d 867,

869-70 (Tenn. 1996).

       This issue is without merit.



                       III. ULTIMATE ISSUE TESTIMONY

       Nurse Thomas testified about various injuries and abnormal conditions she

witnessed in L.L. and concluded that the injuries were the result of forcible


                                          4
penetration. Defendant argues that the trial court erred by allowing Nurse Thomas

to offer these “ultimate issue” opinions.

       Tennessee’s evidentiary rules provide that expert witnesses may “testify in

the form of an opinion or otherwise.” Tenn. R. Evid. 702. Further, “[t]estimony in

the form of an opinion. . .otherwise admissible is not objectionable because it

embraces an ultimate issue to be decided by the trier of fact.” Tenn. R. Evid. 704.

       The trial court allowed Thomas to testify as an expert without objection.

During the course of questioning, she offered the opinion that “the type of injuries

that I see like this are not only indicative of penetration but painful penetration. . .not

consistent with something that is not forcible. . . .”

       As an expert witness, Thomas is allowed to offer her opinion. That opinion,

otherwise admissible, is not objectionable simply because it addresses an ultimate

issue in the case. Tenn. R. Evid. 704.

       This issue is without merit.



                            IV. REBUTTAL TESTIMONY

       Defendant testified that on the morning in question, he was awakened by a

phone call from a friend. After talking on the phone in his bedroom, he prepared to

go to work. As he left the bedroom, defendant heard the front door close. The

sound surprised him because the door was normally kept closed and locked.

Defendant claimed to have seen somebody running away from the house. He

found L.L. in the bathroom and asked her who left. She responded that nobody left

and started to cry. He further testified that L.L. used the washing machine, not him.

       In response to this testimony, the prosecution recalled L.L. in rebuttal. Her

rebuttal testimony was very short and to the point: (1) there were two phones in the

house, but none in defendant’s room; (2) she did not have a boyfriend at the time,

and there was no boy in the house that day; and (3) she did not use the washing

machine.

       Defendant claims the victim’s rebuttal testimony was improper because it did

nothing but clarify the prosecution’s proof-in-chief. Any competent evidence that



                                            5
explains, directly replies to, or contradicts material evidence introduced by the

defense or brought out on cross-examination is admissible as rebuttal evidence.

See State v. Smith, 735 S.W.2d 831, 835 (Tenn. Crim. App. 1987). The scope of

rebuttal lies within the sound discretion of the trial court. Id. The trial court's

decision regarding the admissibility of rebuttal evidence will not be overturned

absent a clear abuse of discretion. See State v. Scott, 735 S.W.2d 825, 828 (Tenn.

Crim. App. 1987).

       In light of defendant’s testimony, admission of the victim’s rebuttal testimony

was proper to directly reply to and contradict the defendant’s claims. This issue is

without merit.



                                 V. SENTENCING

       Defendant asserts that the twenty-five year, maximum Range I sentence,

imposed by the trial court is excessive. He argues that the trial court improperly

failed to give any weight to the mitigating factors developed at trial and in the pre-

sentence report.



                              A. Standard of Review

       This Court’s review of the sentence imposed by the trial court is de novo with

a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption

is conditioned upon an affirmative showing in the record that the trial judge

considered the sentencing principles and all relevant facts and circumstances.

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The burden is upon the

appealing party to show that the sentence is improper. Tenn. Code Ann. § 40-35-

401(d) Sentencing Commission Comments. In conducting our review, we are

required, pursuant to Tenn. Code Ann. § 40-35-210, to consider the following

factors in sentencing:

       (1) [t]he evidence, if any, received at the trial and the sentencing
       hearing; (2) [t]he presentence report; (3) [t]he principles of sentencing
       and arguments as to sentencing alternatives; (4) [t]he nature and
       characteristics of the criminal conduct involved; (5) [e]vidence and
       information offered by the parties on the enhancement and mitigating
       factors in §§ 40-35-113 and 40-35-114; and (6) [a]ny statement the

                                          6
       defendant wishes to make in the defendant’s own behalf about
       sentencing.

Tenn. Code Ann. § 40-35-401(d) Sentencing Commission Comments.



                            B. Trial Court’s Findings

       The trial judge found five enhancement factors applicable to its determination

of defendant’s sentence: (1) the victim was particularly vulnerable because of her

age; (2) the defendant treated the victim with exceptional cruelty during the

commission of the offense; (3) the offense involved a victim and was committed to

gratify defendant’s desire for pleasure or excitement; (4) during the commission of

a felony, defendant willfully inflicted bodily injury upon the victim; and (5) defendant

abused a position of public or private trust. See Tenn. Code Ann. § 40-35-114(4),

(5), (7), (12), (15). Conversely, the trial court declined to apply any factors in

mitigation, despite its acknowledgment that defendant had no criminal history.



                             C. Enhancement Factors

       Although defendant does not contest the application of any of the

enhancement factors, we note that two enhancement factors were improperly

applied. The facts are insufficient to establish exceptional cruelty under Tenn. Code

Ann. § 40-35-114(5). See State v. Williams, 920 S.W.2d 247, 259 (Tenn. Crim.

App. 1995).

       Furthermore, the trial court improperly applied the enhancement factor for

willful infliction of bodily injury upon a victim in the commission of a felony. Tenn.

Code Ann. § 40-35-114(12). Since the state relied upon L.L.’s physical injuries as

the basis for the conviction under Tenn. Code Ann. § 39-13-502(a)(2), those same

injuries cannot be used to enhance his sentence. Tenn. Code Ann. § 40-35-114;

State v. Poole, 945 S.W.2d 93, 95 (Tenn. 1997).



                               D. Mitigating Factors

       Defendant claims that there were several factors developed at trial and in the

pre-sentence report that should have mitigated his sentence: defendant graduated

                                           7
from high school; he had no criminal history; and he had an exemplary work history

from the time of his graduation, including twelve years of military service.

       The trial court acknowledged defendant’s lack of criminal history, but did not

find any specific, applicable mitigating factors. Tenn. Code Ann. § 40-35-113. The

refusal to mitigate the sentence based upon these factors was not erroneous. See

generally State v. Robinson, 971 S.W.2d 30, 48 (Tenn. Crim. App. 1997).



                                   E. Sentence

       In conclusion, the trial court properly found and applied more than one

enhancement factor, and no mitigating factors. The mere fact that additional

enhancement factors were improperly applied does not automatically result in the

reduction of defendant’s sentence. See State v. Lavender, 967 S.W.2d 803, 809

(Tenn. 1998). Under our de novo review, we decline to disturb defendant’s twenty-

five year sentence.



                                VI. CONCLUSION

       Based upon the foregoing, we AFFIRM the judgment and sentence imposed

by the trial court.




                                               ____________________________
                                               JOE G. RILEY, JUDGE




CONCUR:




                                         8
____________________________
JOHN H. PEAY, JUDGE



____________________________
JAMES C. BEASLEY, SR., SPECIAL JUDGE




                               9
