          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                   AT NASHVILLE        FILED
                           OCTOBER 1998 SESSION
                                                        January 21, 1999

                                                       Cecil W. Crowson
                                                      Appellate Court Clerk
STATE OF TENNESSEE,                     )
                                        )    NO. 01C01-9803-CR-00115
      Appellee,                         )
                                        )    PUTNAM COUNTY
VS.                                     )
                                        )    HON. LEON BURNS, JR.,
TRACY STEWART MULLINS,                  )    JUDGE
                                        )
      Appellant.                        )    (Aggravated Sexual Battery)



FOR THE APPELLANT:                           FOR THE APPELLEE:

FRANK LANNOM                                 JOHN KNOX WALKUP
B. KEITH WILLIAMS                            Attorney General and Reporter
102 E. Main Street
Lebanon, TN 37087                            KIM R. HELPER
(On Appeal)                                  Assistant Attorney General
                                             Cordell Hull Building, 2nd Floor
DAVID N. BRADY                               425 Fifth Avenue North
District Public Defender                     Nashville, TN 37243-0493

TERRY D. DYCUS                               WILLIAM E. GIBSON
H. MARSHALL JUDD                             District Attorney General
Assistant Dist. Public Defenders
215 Reagan Street                            JOHN B. NISBET III
Cookeville, TN 38501-3404                    SHAWN FRY
(At Trial)                                   Assistant District Attorney General
                                             145A S. Jefferson Avenue
                                             Cookeville, TN 38501-3424




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                     OPINION

       The defendant was charged with one count of aggravated rape; a jury

convicted him of aggravated sexual battery. He was sentenced as a Range I

standard offender to twelve years in the Department of Correction. In this direct

appeal, the defendant raises the following issues:

              (1) whether aggravated sexual battery is a lesser
              included or lesser grade offense of aggravated rape;

              (2) whether he received constitutionally adequate notice
              of the lesser charge of aggravated sexual battery since
              the indictment charged only aggravated rape;

              (3) whether certain hearsay statements by the victim
              were properly admitted; and

              (4) whether his sentence is excessive.

Upon our review of the record, we affirm the judgment of the trial court.



                                     I. FACTS

       During the early morning hours of June 22, 1996, the defendant and the

victim were riding together in a car with several other people. They stopped at a

place near the defendant’s mother’s house, and the defendant and the victim

walked together into a wooded area. According to the victim, the defendant insisted

on engaging in sexual relations. She refused. He pushed her to the ground, ripped

off her shorts and panties, tore her shirt, and attempted to have intercourse with

her. At one point he threatened her with a small pocketknife. During the struggle,

the defendant hit the victim, pushed her head and face into the ground, and

scratched her chest. Although the defendant was unable to perform intercourse

with the victim, he did penetrate her with his fingers.

       Eventually, the defendant got up to urinate and the victim ran to a nearby

house. The defendant followed her. The victim pounded on the door, and James

Qualls let her in; the defendant followed shortly thereafter. The victim attempted to

call 911, but the defendant hung up the phone. Qualls separated the two, and the

police were eventually called.

       Maxine Qualls, James’ wife, testified that the victim was “crying and shaking



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and. . .upset” and said, “[h]e raped me; he raped me.” She described the victim’s

appearance as follows:

              She had on a pair of blue jean shorts, had the straddle
              cut out of them. They were split up both sides. She
              had on a sleeveless shirt. It had no buttons. She had
              a cut or a scratch on the left side of her breast. She
              had grass and weeds in her hair.

Mrs. Qualls further testified that the victim was not wearing underwear.

       The police arrived and took the defendant into custody. In his statement to

Officer Alton C. Allen II, the defendant admitted that he “wanted some,” but denied

inserting his fingers into the victim. However, Dr. Wendell Bruce Thomas, who

performed an examination upon the victim after the attack, found dirt and leaves

inside her vagina. He testified that this was consistent with the victim being thrown

down in a wooded area and having one or more fingers inserted into her vagina.



                               II. LESSER OFFENSE

       The defendant first contends that the trial court erred when it gave the jury

an instruction on aggravated sexual battery. He argues that aggravated sexual

battery is neither a lesser included, nor a lesser grade offense of aggravated rape.

The state disagrees.

       We note that a trial judge “must instruct the jury on all lesser grades or

classes of offenses.” State v. Cleveland, 959 S.W.2d 548, 553 (Tenn. 1997). One

offense is a “lesser included” of another “‘only if the elements of the greater offense,

as those elements are set forth in the indictment, include but are not congruent with,

all the elements of the lesser.’” Cleveland, 959 S.W.2d at 553 (quoting State v.

Trusty, 919 S.W.2d 305, 310-11 (Tenn. 1996)).           A “lesser grade” offense is

established by statute. “One need only look to the statutes to determine whether

a given offense is a lesser grade or class of the crime charged.” Trusty, 919

S.W.2d at 310.

       The offense of aggravated sexual battery is committed when a person has

unlawful sexual contact with the victim by using force or coercion and a weapon.

See Tenn. Code Ann. § 39-13-504(a)(1). Aggravated rape, as charged in the



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instant indictment, is committed when a person sexually penetrates the victim by

using force or coercion and while armed with a weapon. See Tenn. Code Ann. §

39-13-502(a)(1).

       The evidence in this case supports a charge of aggravated sexual battery.

Therefore, if aggravated sexual battery is either a lesser included, or a lesser grade

offense of aggravated rape, the trial court did not err by instructing the jury on this

offense.

       As indicated above, aggravated sexual battery is not a lesser included

offense of aggravated rape since it requires an element that aggravated rape does

not: the sexual contact must be for the purpose of sexual arousal or gratification.

However, aggravated sexual battery is a lesser grade or class offense of aggravated

rape. The sexual assault crimes are divided into the grades of aggravated rape,

rape, aggravated sexual battery, sexual battery, and rape of a child. See Tenn.

Code Ann. § 39-15-502 through -505, -522; State v. Ealey, 959 S.W.2d 605, 611

n.5 (Tenn. Crim. App. 1997).

       Because the evidence in this case supports a charge of aggravated sexual

battery, and since aggravated sexual battery is a lesser grade or class offense of

aggravated rape, the trial court’s instruction to the jury was proper. This issue is

without merit.



                          III. CONSTITUTIONAL ISSUES

       The defendant next contends that a conviction for aggravated sexual battery

based upon an indictment for aggravated rape is unconstitutional under both the

state and federal constitutions. Specifically, he complains that the indictment failed

to provide him with adequate notice of the lesser charge and fails to protect him

from double jeopardy.



                                A. Adequate Notice

       Our Supreme Court acknowledged that “Tennessee law recognizes two types

of lesser offenses that may be included in the offense charged in an indictment and,


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may, therefore, form the basis for a conviction: a lesser grade or class of the

charged offense and a lesser included offense.” Trusty, 919 S.W.2d at 310. Thus,

notice of the charged offense includes notice of all lesser included and lesser grade

offenses. See State v. Banes, 874 S.W.2d 73, 80 (Tenn. Crim. App. 1993) (“An

indictment charging a greater offense impliedly charges all lesser included offenses

for which the proof would support a conviction.”) Otherwise, the prosecutor would

have to separately charge the accused with every possible lesser grade and lesser

included offense arguably supported by the evidence. Our constitutions simply do

not impose such a burden.

       This issue is without merit.



                                B. Double Jeopardy

       We further reject the defendant’s contention that the instant indictment fails

to protect him from double jeopardy. The trial on the primary charge of aggravated

rape was also a trial upon all lesser offenses. See State v. Tutton, 875 S.W.2d 295,

297 (Tenn. Crim. App. 1993) (“When there is a trial on a single charge of a felony,

there is also a trial on all lesser included offenses, ‘as the facts may be.’”) (citation

omitted). Any future attempt by the state to prosecute him for this offense would be

barred by double jeopardy principles. See, e.g., State v. Byrd, 820 S.W.2d 739, 741

(Tenn. 1991).

       This issue is without merit.



                                    IV. HEARSAY

       The defendant’s next contention is that the trial court erred in admitting the

testimony of Melinda Kay Qualls wherein she repeats statements of the victim

overheard in her parents’ home. During her testimony, Ms. Qualls stated that the

victim said the defendant raped her, that he forced her “to do things,” and that “he

was cutting her trying to make her do what he wanted her to do.” The defendant

contends that “[a]dmission of these prejudicial statements violated the rules of

evidence.” The trial court allowed the testimony based on the excited utterance


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exception to the hearsay rule. See Tenn. R. Evid. 803(2). The trial court was

correct.

       An excited utterance is a hearsay 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. Here, the victim’s statements were made immediately

following her escape from the defendant and while visibly upset from the event.

These statements are classic examples of excited utterances and were properly

admitted.

       This issue is without merit.



                                  V. SENTENCING

       Finally, the defendant complains that his twelve-year sentence is excessive.

The trial court imposed the maximum sentence on the basis of defendant’s criminal

record which included a prior rape conviction. See Tenn. Code Ann. § 40-35-114(1)

(enhancement is appropriate where the defendant has a previous history of criminal

convictions). The defendant offered no proof of mitigating factors at the hearing,

and the trial court found none.

       When a defendant challenges the length of his sentence, we must conduct

a de novo review with a presumption of correctness. Tenn. Code Ann. § 40-35-

401(d). This presumption, however, “is conditioned upon the affirmative showing

in the record that the trial court considered the sentencing principles and all relevant

facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The

burden of showing that the sentence is improper is upon the defendant. Id.

       Tenn. Code Ann. § 40-35-210(c) provides that the presumptive sentence is

the minimum sentence within the range. If there are enhancing and mitigating

factors, the court must start at the minimum sentence in the range and enhance the

sentence as appropriate for the enhancement factors and then reduce the sentence

within the range as appropriate for the mitigating factors. If there are no mitigating

factors, the court may set the sentence above the minimum in that range but still

within the range.



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         Defendant’s complaint that the trial court erred by sentencing him to the

maximum sentence based upon one enhancement factor is without merit. The

weight given to enhancement factors is left to the discretion of the trial court as long

as the trial court complies with the purposes and principles of the sentencing act

and its findings are supported by the record. State v. Moss, 727 S.W.2d 229, 238

(Tenn. 1986); State v. Leggs, 955 S.W.2d 845, 848 (Tenn. Crim. App. 1997). The

defendant had a criminal history including a prior conviction for rape. The trial court

gave great weight to this enhancement factor. It did not abuse its discretion in doing

so.

         This issue is without merit.



                                  VI. CONCLUSION

         After a careful review of the record, we AFFIRM the judgment of the trial

court.




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                              _____________________________
                              JOE G. RILEY, JUDGE




CONCUR:



 (Not Participating)
PAUL G. SUMMERS, JUDGE




JOSEPH M. TIPTON, JUDGE




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