             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT KNOXVILLE                  FILED
                          NOVEMBER 1995 SESSION
                                                            February 27, 1998

                                                            Cecil Crowson, Jr.
                                                            Appellate C ourt Clerk
STATE OF TENNESSEE,            )
                               )
             Appellee,         )   No. 03C01-9501-CR-00012
                               )
                               )   Bradley County
v.                             )
                               )    Honorable R. Steven Bebb, Judge
                               )
ANGELA MANNING,                )    (Especially aggravated kidnapping, especially
                               )    aggravated robbery, aggravated rape (five
             Appellant.        )     counts), especially aggravated burglary,
                               )     conspiracy to commit aggravated burglary,
                               )     theft of property valued over $1000)


For the Appellant:                 For the Appellee:

Ashley L. Ownby                     Charles W. Burson
440 Worth Street, N.W.              Attorney General of Tennessee
P.O. Box 176                               and
Cleveland, TN 37364-0176            Amy L. Tarkington
                                    Assistant Attorney General of Tennessee
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493

                                    Jerry N. Estes
                                    District Attorney General
                                            and
                                    Joseph Rehyansky
                                    Assistant District Attorney General
                                    203 E. Madison
                                    Athens, TN 37303-0647




OPINION FILED:____________________



ESPECIALLY AGGRAVATED KIDNAPPING, ESPECIALLY AGGRAVATED
ROBBERY, AGGRAVATED RAPE, CONSPIRACY TO COMMIT AGGRAVATED
BURGLARY, AND THEFT OF PROPERTY VALUED OVER $1,000 CONVICTIONS
AFFIRMED; ESPECIALLY AGGRAVATED BURGLARY CONVICTION MODIFIED TO
AGGRAVATED BURGLARY


Joseph M. Tipton
Judge
                                       OPINION


             The defendant, Angela Manning, appeals as of right her convictions by a

jury in the Bradley County Criminal Court for especially aggravated kidnapping,

especially aggravated robbery, five counts of aggravated rape, all Class A felonies,

especially aggravated burglary, a Class B felony, conspiracy to commit aggravated

burglary, a Class D felony, and theft of property valued over one thousand dollars, a

Class D felony. As a Range I, standard offender, she received a twenty-five-year

sentence for each of the Class A felonies, a twelve-year sentence and twenty-five-

thousand-dollar fine for the especially aggravated burglary, a four-year sentence and

five-thousand-dollar fine for the conspiracy to commit aggravated burglary, and a four-

year sentence for the theft of property valued over one thousand dollars. All sentences

are to be served concurrently. The defendant contends that:

             (1) the trial court committed reversible error by excluding
             impeachment evidence; and

             (2) the trial court erred by allowing the victim to identify the
             defendant at trial.

We disagree with the defendant’s contentions. However, we recognize, as plain error,

that the defendant’s conviction for especially aggravated burglary is prohibited under

T.C.A. § 39-14-404(d). We reduce the especially aggravated burglary conviction to

aggravated burglary and impose a four-year sentence and ten-thousand-dollar fine for

the conviction.



             This case involves events on the morning of October 31, 1993, at a house

where Faye Watson, her husband and parents resided. Mrs. Watson, a victim of the

offenses, testified that on October 30, 1993, she received a telephone call from

Shannon Blaylock, her former foster son, who asked whether she would be going to

church the next morning. She said that she told him that she was and that he replied

that he may see her there. The victim said that she did not attend church on October



                                             2
31 because she felt sick. She stated that her daughter called her at 10:30 a.m. that

morning, after her parents and husband had left for church. Shortly after she got off the

telephone with her daughter, she was leaving the bathroom of the house on her way to

her bedroom when she heard a noise. She turned and saw a man, whom she later

identified as Scott Minton, in the living room. She also recognized Shannon Blaylock’s

voice coming from another room and noticed that the defendant was also standing in

the living room. She said that both Minton and the defendant had a knife but that

Minton assured her that he only wanted her money and that he would not hurt her. She

said that the defendant followed her and Minton to her bedroom where she gave Minton

approximately two hundred dollars out of her pocketbook and some money from her

piggy bank. She said that the defendant and Minton insisted that there was more

money, but she kept telling them that there was not.



             The victim testified that Minton pushed her from the bedroom into the

living room and that the defendant pulled on her housecoat causing it to unbutton. The

victim testified that the defendant told Minton to burn her and that Minton used a cigar

to burn her several times. She said that Minton burned her three or four times on the

chest, twice on the breasts, once in the middle of her stomach, three times on her

buttocks, once in the center of her back, and once in the center of her right thigh. The

victim said that the defendant and Minton passed a gun back and forth to each other

during the attack and that the defendant burned her face with a cigarette.



             The victim also detailed various sexual assaults on her that were

committed by the defendant and Minton. She said that the defendant ordered Minton to

perform anal sex on her, ordered Minton to make her perform fellatio on him and then

ordered Minton to urinate on her. The victim testified that Minton complied with the

defendant’s orders while the defendant assaulted her with a gun. The victim explained

that while Minton was up at her head the defendant placed the gun into her vagina.



                                            3
The victim said that at one point the defendant dropped her shorts and sat on her face,

forcing her to perform cunnilingus. The victim said that the defendant performed

cunnilingus on her and that someone penetrated her vagina with a can of room

deodorizer. The victim said that the assaults ended when Minton got scared because

the gun discharged, shooting the victim in the leg.



              During cross-examination, the victim was questioned about

inconsistencies between her testimony and prior statements that she had made. She

also admitted that in 1992 she wrote three or four thousand dollars worth of bad checks

to her employer, K-Mart. Although she admitted returning some of the goods she

purchased with the checks for a refund, she said that she could not remember what she

did with the money from the goods because she had a bad calcium problem at the time.

She explained that she had been suffering from a “calcium storm” and that she did not

know what she was doing. She said that as soon as she realized what had happened

she called the head of security for K-Mart.



              Ellen Summers, Mrs. Watson’s daughter, testified that she lives next door

to the house where Mrs. Watson resided on the day of the offenses. She said that she

talked to the victim on the telephone at 10:30 that morning and that she did not see a

car drive up to the house that morning and did not hear a gunshot. Mrs. W atson’s

father testified that seven thousand, six hundred dollars was taken from his closet that

day. He said that only his wife knew where he kept the money.



              Roxanne Blackwell, a deputy sheriff with the Bradley County Sheriff’s

Department testified that she was dispatched to go to the victim’s residence a little after

eleven on October 31. She said that when she arrived she found the victim lying on the

living room floor with burns on her face, chest, and buttocks and a gunshot wound in

her leg.



                                              4
             Phillip Matthews, a former detective with the Bradley County Sheriff’s

Department, testified that he met with the victim on October 31 and that she picked the

defendant out of a photograph array. He said that he went to Dayton sometime around

noon or after and that the defendant and some others were taken to the police station

at around 2:00 p.m. or 3:00 p.m. He also testified that he never found any money on

any of the suspects during his investigation of the case.



             Anthony Benefield, a deputy sheriff with the Bradley County Sheriff’s

Department, testified that the victim picked the defendant out of a live lineup, and a

videotape of the lineup was played for the jury. Deputy Benefield also testified that he

interviewed the defendant. A transcript of the interview was introduced into evidence

and an audiotape of the interview was played for the jury. According to the transcript,

the defendant said that she rode to Cleveland with Shannon, Scott, and another person

to get some parts for Scott’s car. She said that they went to a house in Cleveland and

prowled though drawers in the house. She testified that Shannon got excited and told

the others to stop going through drawers. She said that they eventually got back into

the car and Shannon showed them some money.



              The defendant told Benefield that when they arrived at the house, she

asked, “why isn’t she at church?” She said that Shannon responded that he did not

know whether she was at church. The defendant said that she asked Shannon what

they would do if the victim was at church and that Shannon told her that they would wait

for her to return. The defendant admitted entering the house. She said that Shannon

gave her pantyhose that he had found in a drawer and that she held them until he took

them from her and used them to tie the victim’s arms. The defendant said that she

stood over the victim’s face and watched her and Scott. She said that Scott had a

cigarette butt and that he “went crazy.” The defendant said that she could not watch




                                            5
what Scott was doing but that Scott “went wild.” The defendant said that the victim

supposedly had a scar over one of her eyes where she had been burned.



             When asked what else Scott did while they were in the living room, the

following colloquy occurred between the officers and the defendant:

             AM: Just scare her or something like that. Like you know who,
             well wait a minute, you’re not a girl.

             DG: I know . . . .

             AM: Like if you, like some guys they come up and they force
             you to doing stuff and they’ll swing in your face or something
             like that.

             DG: Swing? What?

             AM: Their penis.

             DG: Ok. . . .

             AM: And stuff like that.

             DG: Has that ever happened to you?

             AM: Yes. I didn’t watch, I just turned my head. . . . hold on to
             it for a while, and he looked like he got aggravated and he
             yanked it out of my hand. . . .one of them . . . .

             DG: One of them?

             AM: No, I wouldn’t know what to do with a gun.

             DG: Did you see him do anything to her with the gun?

             AM: . . . . Threatened her and stuff like that.

The defendant said that she was afraid of guns and that she had the gun at one time

but that she gave it to one of the others. She denied shooting the victim.



             On cross-examination, Officer Benefield said that he thought that the

defendant was uneducated but was able to function on her own in society. He also

testified that he never recovered any of the money that was taken from the house.




                                            6
             Detective Robert Dale Hyden testified that law enforcement officers did

not request that a rape kit be performed in this case because there was no information

of genital to genital contact or semen. Detective Hyden said that he took the victim’s

statement at 12:15 p.m. on October 31, and a copy of the statement was admitted into

evidence.



             Dr. Elizabeth Daubner testified that she examined the victim on October

31, 1993. She said that the victim had multiple burns on the left side of her face and

several other burns on the left side of her buttocks and on her anterior chest wall. Dr.

Daubner said that the victim had a total of around ten or twelve burns on her body and

that the burns appeared to have been caused by cigarettes. Dr. Daubner said that the

victim also had a gunshot wound to her left leg. Dr. Daubner said that the victim had an

abrasion on her vaginal vault but did not have any lacerations, tears, or bleeding.



             Dr. Rokeya Farooque, a staff psychiatrist with the Forensics Division of

the Middle Tennessee Mental Health Institute, testified for the defense. He said that

the defendant does not have a mental illness but is of borderline intellectual functioning.

Dr. Farooque explained that the defendant’s spelling, reading, and math skills are

between a third and fifth grade level. Dr. Farooque also stated that the defendant is not

a danger to herself or others due to any mental illness.



              Susan Smith testified that she lives with Scott Minton’s brother, Michael.

She said that the defendant came to her house at around 11:00 a.m. or 11:30 a.m. on

October 31, 1993. She said that the defendant stayed at the house for about an hour.

On cross-examination, Ms. Smith admitted that she told police that the defendant acted

“funny” that morning. Ms. Smith explained that the defendant actually acted shy and

that the defendant always acts funny or shy. Michael Minton also testified that he saw

the defendant as she was leaving his home at around 12:30 p.m. on October 31, 1993.



                                            7
                 I. ADMISSIBILITY OF VICTIM’S PRIOR ACTS

              In her first issue, the defendant contends that the trial court violated her

due process rights by refusing to allow her to present evidence of the victim’s prior acts

to impeach her testimony. The defendant asserts that the victim’s prior acts were

admissible under Rules 404(b) or 608(b)(2), Tenn. R. Evid., and that her defense was

unfairly limited by their exclusion. The state counters that the trial court properly

applied Rules 404 and 608.



              During pretrial hearings, the defendant presented testimony as to the

evidence she intended to present to impeach Mrs. Watson. The defendant presented

proof concerning bad checks Mrs. Watson allegedly wrote in 1989, bad checks Mrs.

Watson admitted to writing to K-Mart in 1992, and bad checks that Mrs. Watson

allegedly wrote out of her daughter’s checking account in 1992. The defendant also

presented proof relating to Mrs. Watson’s alleged suicide attempts and of her allegedly

fraudulent conduct during her marriages to Stony Jack Anderson.



              At a pretrial hearing, Roy Lee McJunkin, Jr., a loss control manager with

K-Mart, testified about his investigation into checks Mrs. Watson allegedly wrote to K-

Mart in 1989. During his investigation he drove to the K-Mart stores in Athens and East

Ridge and interviewed store employees. He said that an employee in Athens told him

that Mrs. Watson wrote checks for stereo and other equipment and then tried to return

the merchandise for a refund three days later. He said that the East Ridge store was

having the same type of problem and that two people from that store identified Mrs.

Watson as the person who wrote the checks and who also tried to get a refund for

merchandise. Mr. McJunkin said that at one point in his investigation, Mrs. Watson told

him that she could not have written a check or tried to obtain a refund because she was

working at the time. However, when Mr. McJunkin tried to check Mrs. Watson’s




                                              8
timecard for that week he found that it was missing and that the hours she worked had

to be handwritten on the card.



             Bill Matthews of the Athens Police Department testified that he was also

involved in investigating Mrs. W atson for writing bad checks in 1989. He said that two

out of three witnesses identified Mrs. Watson as the person who passed a bad check to

K-Mart by picking her picture out of a photograph lineup. Mr. Matthews said that the

grand jury indicted Mrs. Watson but that the charges were dismissed on May 7, 1992.



             Attorney James F. Logan, Jr., testified that he represented Mrs. Watson

when she was indicted on check charges in Hamilton and McMinn counties. He said

that he consulted a forensic services examiner with the Georgia Bureau of Investigation

(G.B.I.) for an evaluation of the handwriting on the checks that were passed in Hamilton

County. He explained that he consulted the G.B.I. because one of the prosecuting

attorneys had experience with that particular agency. Mr. Logan testified that,

according to one of Mrs. Watson’s time sheets or time cards, it would have been

impossible for her to have traveled to Athens and passed one of the checks. Mr. Logan

did not recall that any of Mrs. Watson’s time cards were missing. He also stated that

Mrs. Watson was with one of her family members at the time one of the checks was

passed. Mr. Logan testified that Mrs. Watson had a facial deformity during the time the

checks were passed but that none of the witnesses who identified her mentioned it.



             Mrs. Watson denied writing the bad checks. She testified that checks that

had been stolen from her were passed in several different stores in 1989 but that only

the K-Mart stores in East Ridge and Athens chose to prosecute her. She stated that

pursuant to her lawyer’s request, she and her husband went to several of the stores

where the checks were passed and asked people who had taken the checks whether

they had ever seen her before. She said that several of the clerks said that they had



                                           9
never seen her before. She stated that she was indicted in McMinn and Hamilton

Counties but denied writing the checks to K-Mart. She explained that the checks were

in her pocketbook when it was stolen. She testified that in 1989 she had proof that she

was working in Bradley County at the time one of the bad checks was passed in

Athens. However, she could not recall what proof she had, and she said that her time

sheet for the week the bad check was passed turned up missing.



             Mrs. Watson said that her beautician could verify that she was receiving a

permanent when one of the checks was passed. Mrs. Watson explained that she did

not tell her attorney about the beautician because she did not want to involve the

beautician unless she was going to trial on the check charges. Mrs. Watson also

testified that she had abnormalities on her face when the 1989 checks were passed.



             Mrs. Watson said that she received reports from the Georgia Bureau of

Investigation that said that her signatures were definitely not on the checks that were

passed in East Ridge. She said that her lawyer sent her a copy of the letter he sent to

McMinn County explaining that the Hamilton County charges had been dropped

because her handwriting was not on the checks and stating that he was sure that the

McMinn County charges would also be dropped.



             Herbert L. Cannon, a loss manager with K-Mart, testified that he

conducted an investigation involving Mrs. Watson in 1992. He testified that Mrs.

Watson wrote fifty-three checks over a three week period in May and June of 1992 for a

total of more than three thousand eight hundred dollars. He said that Mrs. Watson

eventually agreed to pay restitution for the checks.



             Mr. Cannon testified that his investigation began when he received a

phone call from a bank notifying him that K-Mart was having a number of bad checks



                                           10
returned on Mrs. Watson. He said that he talked to Mrs. Watson about some checks

and that she said that she would take care of them, explaining that she had been in the

hospital and a calcium buildup had affected her thinking. When Mr. Cannon discovered

that K-Mart had received fifty-three bad checks totaling more than three thousand eight

hundred dollars, he discussed the situation with Mrs. Watson again. Mrs. Watson told

him that Emory Hospital had placed a lien against her banking account. Mr. Cannon

said that the people at the hospital denied placing a lien against the account for

anything and told him that, with the exception of twenty dollars that the hospital had

written off, Mrs. Watson’s account had been paid in full. Mr. Cannon also testified that

Mrs. Watson told him that two other hospitals had placed liens on her account.

However, he said that the bank on which the checks were drawn denied that there were

any such liens on Mrs. Watson’s account. Mr. Cannon said that when he told Mrs.

Watson that her story did not check out, she replied by saying that she thought she

needed some help and that she believed she had lost some of her ammunition.



             Mr. Cannon explained that based on his training and experience, Mrs.

Watson’s actions were consistent with the perpetration of a fraudulent scheme on K-

Mart. He said that Mrs. Watson used ten different driver’s license numbers to cash the

checks. She told him that she did not have her license with her when she used the

checks and that she would just tell the cashiers a license number. Mr. Cannon testified

that the checks Mrs. Watson wrote to K-Mart in 1992 were written from two different

accounts that had both been closed in 1990. Mr. Cannon said that a lady from the

bank told him that one of the accounts the checks were written on was closed in 1990

because some checks from the account had been stolen and others Mrs. Watson had

written but had not paid. Mr. Cannon said that the bank wrote off around one hundred

eighty-one dollars and closed the account itself.




                                            11
             Mr. Cannon testified that he had heard that Mrs. Watson was suffering

from some physical disorder when she wrote the checks in 1992. Although he said that

he may have noticed that Mrs. Watson’s face was swollen a little during that time, he

did not notice anything unusual about her behavior. He said that he felt that Mrs.

Watson understood what she was doing when she wrote the checks and then sought

refunds. Mr. Cannon also testified that he checked into the 1989 bad check

accusations against Mrs. Watson and learned that bad check charges had been

dropped.



             With respect to the 1992 checks, Mrs. Watson testified that she wrote the

checks during a time that she was having calcium problems and had a tumor on her

parathyroid. She explained that she suffered from calcium storms that prevented her

from knowing what she was doing and that she agreed to pay restitution for the checks.



             Mrs. Watson’s twenty-one-year-old daughter, Jackie Anderson, testified

that when she was nineteen she had quit using her checking account and had left about

twenty dollars in it. She remembered seeing one of her checkbooks hidden in the back

of her mother’s pocketbook. Later, she received approximately thirty letters from

collection agencies where bad checks had been written on the account to K-Mart and

other places. Ms. Anderson testified that she and Mrs. Watson fought over the bad

checks but that Mrs. Watson never admitted to writing them.



             Dr. Thomas Lee Corey, a clinical psychologist, testified concerning past

suicide attempts by Mrs. Watson. He said that he conducted a routine examination on

Mrs. Watson, who was then Mrs. Anderson, pursuant to her admission to a hospital in

1976. He testified that Mrs. Watson told him that she had attempted suicide four times

and that she had been hospitalized for mental problems. He said that he referred to

Mrs. Watson, at the time, as probably attempting to use a very real mental illness in a



                                           12
manipulative manner. He reached this conclusion because he thought that given Mrs.

Watson’s four suicide attempts in relation to her marital problems, she was trying to

make a statement by the suicide attempts. Dr. Corey testified that his examination of

Mrs. Watson lasted about an hour and a half.



              Stoney Jack Anderson testified about several instances of fraudulent

conduct that Mrs. Watson committed while he was married to her from 1963 to 1970

and from 1971 to 1976. He stated that he returned home from overseas in 1975 to find

that a window had been broken in a bedroom. He said that he asked Mrs. Watson what

happened and that she told him that their home had been burglarized. He said that he

eventually found the items that Mrs. Watson reported missing in his Winnebago. He

said that Mrs. Watson had filed an insurance claim on the missing items for ten to

eleven thousand dollars and that he called the police and insurance company and told

them that nothing was missing.



              Mr. Anderson testified that in 1972 or 1973, Mrs. W atson called him while

he was working at a naval base and told him that she had received a call from a man

threatening to kidnap and kill their daughter if they did not pay fifty thousand dollars.

Mr. Anderson explained that he could have paid the fifty thousand dollars at the time

because he had money from the settlement of an accident claim involving his daughter.

Mr. Anderson said that he reported the threatening phone call to the base police, and

the Federal Bureau of Investigation (F.B.I.) was called to investigate. Mr. Anderson

said that he received another threatening call at work and that the caller demanded the

money and said he was serious. The caller told Mr. Anderson that there would be three

incidents that would demonstrate how serious he was.



              Mr. Anderson testified that after he received the threatening call, he called

his wife and told her to remain at the naval hospital until he could get there. He stated



                                             13
that his wife called him back and told him that she could not go anywhere because her

car would not start. Mr. Anderson said that he discovered that someone had pulled the

wire harness out from under her car. He said that he could not find what was wrong

with the car until his wife brought it to his attention. Mr. Anderson also said that Mrs.

Watson sent him to the store one day and that when he returned he found that his utility

building was on fire. The fire department helped him extinguish the fire.



              Mr. Anderson testified that two F.B.I. Agents confronted him and his wife

and accused Mrs. Watson of making the threatening phone calls. The F.B.I. Agents

told them that they had conducted a voice analysis and that Mrs. Watson was the

person making the threatening calls.



              Mr. Anderson also testified that Mrs. Watson burned herself with

cigarettes on two different occasions while they were married. Mr. Anderson said that

the first time occurred in 1970 or 1971 after they had an argument. He said that Mrs.

Watson left the house walking and that when she returned she was accompanied by

the base police. The police ordered him to accompany them and accused him of

beating his wife and burning her with cigarettes. Mr. Anderson said that he turned to

his wife and told her to show her burns if she was burned. He said that Mrs. Watson

raised her blouse and revealed four or five burns on her stomach. Mr. Anderson said

that he was served his divorce papers the next day.



              According to Mr. Anderson, Mrs. Watson burned herself with cigarettes

again in 1976. He said that when he noticed the burns, he told her to “go ahead and

get the divorce.” He said that they got divorced in October 1976.



              Mr. Anderson also testified that Mrs. Watson wrote several bad checks

while they were married. He said that he eventually put all of his money in a checking



                                             14
account that was solely in his name. According to Mr. Anderson, when he returned

from a trip overseas, all of his money was gone, and he had two to three hundred

dollars in overdraft charges on the account. Mr. Anderson stated that he saw copies of

all of the checks that were written on his account and that Mrs. Watson had forged his

name to the checks. He said that he never got the money back because he would not

prosecute his wife.



              The trial court ruled that Mrs. Watson could only be questioned

concerning the checks she admitted to writing to K-Mart in 1992 and the surrounding

circumstances. It ruled that she could not be asked any questions concerning the 1989

checks that were written to K-Mart or the checks written on her daughter’s checking

account. The court ruled that Mr. Anderson’s testimony was not admissible because it

was too remote, too speculative, too conclusive and an attempt to prove prior bad acts

that do not amount to a conviction by extrinsic evidence in violation of Rule 608(b),

Tenn. R. Evid. The court also excluded proof concerning Mrs. Watson’s suicide

attempts as being too remote. The defendant contends that evidence of the victim’s

prior bad acts are admissible under Rules 404(b) and 608, Tenn. R. Evid, and that their

exclusion violated her due process rights.



                                       A. RULE 404(b)

              The defendant contends that the proof she offered regarding prior bad

acts of Mrs. Watson was admissible under Rule 404(b), Tenn. R. Evid. This rule

prohibits the introduction of evidence of other crimes or acts, except when the evidence

of other acts is relevant to a litigated issue, such as identity, intent, or rebuttal of

accident or mistake, and its probative value is not outweighed by the danger of unfair




                                              15
prejudice.1 See Tenn. R. Evid. 404(b), Advisory Commission Comment; State v.

Parton, 694 S.W.2d 299, 303 (Tenn. 1985); State v. Hooten, 735 S.W.2d 823, 824

(Tenn. Crim. App. 1987). When, as in this case, a trial court substantially complies with

the procedural requirements of the rule, its determination will not be overturned absent

an abuse of discretion. See Dubose, 953 S.W.2d at 652.



                   The defendant cites United States v. Cohen, 888 F.2d 770 (11th Cir.

1989), to argue that the victim’s prior involvement in fraudulent schemes and burning

herself with cigarette butts was admissible under Rule 404(b), Tenn. R. Evid., as being

relevant to the issue of the defendant’s guilt. In Cohen, the Eleventh Circuit reversed

the defendants’ convictions for wire fraud, conspiracy, and tax evasion because the trial

court prohibited the defendants from cross-examining a prosecution witness, who was

also involved in the alleged crimes, about a similar fraudulent business transaction that

the witness had conducted. The court reasoned that the standard for admitting

evidence under Rule 404(b), Fed. R. Evid., is relaxed when the evidence is offered by a

criminal defendant. Applying the relaxed standard, the court held that proof of the

witness’ prior bad acts was admissible to show his ability to plan and conduct a

fraudulent scheme without help from the defendants.



                   Although the defendant combines all the instances of the victim’s prior

misconduct to contend that the pattern of fraudulent conduct is admissible under Rule

404(b) to show that the victim is capable of fabricating the alleged crimes, we do not

view the various acts as being part of a common scheme and plan. See State v.

Hallock, 875 S.W.2d 285, 289-90 (Tenn. Crim. App. 1993). Thus, we must examine



                   1
                      W e recog nize that State v. Dubose, 953 S.W.2d 649, 653 (Tenn. 1997), may be read as
indica ting th at Ru le 404 (b) do es no t app ly to ex clud e act s co mm itted b y som eon e oth er tha n the crim inally
accused. However, we do not believe that our supreme court meant to place such a limitation on the rule.
The plain language of Rule 404(b) does not limit its application to the defendant’s prior conduct. Instead,
the ru le app lies to any ev idenc e “of othe r crim es, w rong s, or a cts.” Ten n. R. E vid. 40 4(b) . The rule
recognizes the risk of unfair prejudice that accompanies the introduction of prior bad act evidence and
does not distinguish between bad act evidence that prejudices the defendant and that which prejudices
the state.

                                                            16
each specific instance of conduct separately to determine its admissibility under Rule

404(b). Also, insofar as the defendant is arguing that the proof of the prior acts is

probative solely to impeach the victim’s credibility, Rule 404(b) does not apply. The

admissibility of specific instances of conduct solely to impeach a witness’ credibility is

governed by Rule 608(b), Tenn. R. Evid., which excludes extrinsic evidence of the

conduct.



              In our view, Mrs. Watson’s prior conduct in writing bad checks is only

relevant with respect to her credibility. The fact that Mrs. Watson wrote bad checks in

the past is not relevant to show identity, intent, rebuttal of accident or mistake, or to any

issue other than the victim’s character for untruthfulness. Thus, the trial court was

correct in excluding extrinsic evidence of the conduct. See Tenn. R. Evid. 608(b).



              Likewise, the testimony concerning Mrs. Watson’s prior suicide attempts

was properly excluded under Rule 404(b). Because this proof is solely relevant to Mrs.

Watson’s credibility, its admissibility is governed by Rule 608(b).



              On the other hand, the testimony concerning the victim’s fabrication of a

burglary and of kidnapping threats for financial gain and her burning herself with

cigarettes to blame her husband for the injuries presents a more complex issue. These

specific instances of conduct are not only relevant to impeach the victim’s credibility but

also tend to show that the victim has the ability to fabricate the crimes at issue. See,

e.g., State v. Gookins, 637 A.2d 1255, 1258 (N.J. 1994) (proof that officer falsified

breathalyzer tests in other cases is relevant to show that officer had the opportunity to

falsify test in present case); People v. Mascarenas, 98 Cal. Rptr. 728, 733-34 (Cal. Ct.

App. 1971) (proof that prosecution witness had stolen and made false charges to build

case against another person is relevant to show that he may have stolen and fabricated




                                             17
charge in present case). Such proof is admissible under Rule 404(b), unless its

probative value is outweighed by the danger of unfair prejudice.



             The defendant in this case attempted to present Mr. Anderson’s testimony

concerning Mrs. Watson’s prior false reports of burglary and abuse to show that Mrs.

Watson had the ability to fabricate the alleged crimes. We agree with the defendant

that Mr. Anderson’s proffered testimony that Mrs. Watson falsely reported a burglary of

her home to gain insurance proceeds, fabricated kidnapping threats to get money from

him, and burned herself with cigarette butts on two different occasions is probative of

her ability to fabricate the crimes for which the defendant was charged. However, we

also recognize the factual differences between the prior incidents and the events in this

case. Unlike this case, Mrs. Watson did not receive any injuries when she allegedly

staged a burglary to collect insurance proceeds. Also, unlike the burns Mrs. Watson

suffered in this case, the earlier burns Mrs. Watson inflicted upon herself were limited to

her stomach area. Likewise, the probative value of the testimony is greatly diminished

due to the fact that the prior conduct occurred more than seventeen years before the

offenses in this case. Given these facts, we cannot say that the trial court abused its

discretion by excluding the evidence.



              The defendant contends that the trial court unfairly limited her defense

and thus violated her due process rights when it excluded proof of Mrs. Watson’s prior

bad acts. We disagree. The proper exclusion of evidence based upon principles of

relevance does not violate a defendant’s due process rights.



                                     B. RULE 608(b)

              The defendant contends that she should have been allowed to question

Mrs. Watson about her prior bad acts under Rule 608(b), Tenn. R. Evid. The state

counters that the trial court properly applied Rule 608.



                                            18
              Under Rule 608(b), Tenn. R. Evid, a party can impeach a witness’

credibility through cross-examination regarding specific instances of conduct under

certain circumstances. The rule forbids the introduction of extrinsic proof solely for the

purpose of impeaching a witness’ credibility but states that a witness may be

questioned regarding specific instances of conduct if the following conditions are

satisfied:

                (1) The court upon request must hold a hearing outside the
              jury’s presence and must determine that the alleged conduct
              has probative value and that a reasonable factual basis exists
              for the inquiry;

               (2) The conduct must have occurred no more than ten years
              before commencement of the action or prosecution, but
              evidence of a specific instance of conduct not qualifying under
              this paragraph (2) is admissible if the proponent gives to the
              adverse party sufficient advance notice of intent to use such
              evidence to provide the adverse party with a fair opportunity to
              contest the use of such evidence and the court determines in
              the interests of justice that the probative value of that
              evidence, supported by specific facts and circumstances,
              substantially outweighs its prejudicial effect . . . .

Although Rule 608(b) requires that the trial court consider the probative value of the

specific instance of conduct towards the witness’ credibility, the rule does not specify

the balancing of probative value versus risk of unfair prejudice that is required when the

witness’ misconduct occurred within ten years of the commencement of the case. See

Herbert ex rel. Herbert v. Brazeale, 902 S.W.2d 933, 939 (Tenn. Ct. App. 1995).



              By contrast, the rule does specify that the probative value of conduct that

occurred more than ten years before the commencement of the prosecution must

substantially outweigh its prejudicial effect. The rule also states that when the witness

to be impeached is the criminally accused, the court must determine that the probative

value of the conduct on the accused’s credibility outweighs its unfair prejudicial effect

on substantive issues. Tenn. R. Evid. 608(b)(2) and (3).




                                            19
              Under Rule 403, Tenn. R. Evid., relevant evidence may be excluded if its

probative value is substantially outweighed by the risk of unfair prejudice. One

approach to dealing with the silence in Rule 608 with respect to the standard for

balancing probative value versus risk of unfair prejudice with regard to recent

misconduct that reflects upon the witness’ credibility is to apply Rule 403 balancing.

See, e.g., King v. Ahrens, 16 F.3d 265, 269 (8th Cir. 1994) (recognizing that Rule 403,

Fed. R. Evid., balancing is an integral step toward a determination of admissibility under

Rule 608(b), Fed. R. Evid.).



              Another approach is to apply even balancing of probative value versus

unfair prejudice. The application of this approach is supported by State v. Morgan, 541

S.W.2d 385 (Tenn. 1976), in which the Tennessee Supreme Court adopted Rule

608(b), Fed. R. Evid., and by the Advisory Commission Comments to the Rule 608,

Tenn. R. Evid. Herbert, 902 S.W.2d at 939; N. Cohen et al., Tennessee Law of

Evidence § 608.6, at 356 (3d ed. 1995). The Morgan court held that “where a witness

is sought to be cross-examined as to specific instances of conduct as contemplated by

Rule 608(b), the Court shall conduct a jury-out hearing for the purpose of determining

that the probative value of such evidence outweighs its prejudicial effect.” 541 S.W.2d

at 390 (emphasis added). Likewise, the Advisory Commission Comment to Rule

608(b), Tenn. R. Evid., states:

                     Part (b) reflects the Supreme Court’s view of
              impeachment by prior bad acts. State v. Morgan, 541 S.W.2d
              385 (Tenn. 1976), incorporated F.R.Evid. 608(b) into
              Tennessee case law. The proposed rule is even more specific
              than the federal version. It requires a jury-out hearing on
              probative value and basis for cross-examination, relatively
              recent misconduct, and notice plus analytical weighing of
              probative value versus unfair prejudice.


              In Herbert, the court of appeals suggested that even balancing of

probative value versus unfair prejudice is preferable “[b]ecause of the high possibility

that the misconduct will be given too much weight by the jury and because of the



                                            20
doubtful probative nature of such evidence.” 902 S.W.2d at 939, (quoting N. Cohen. et

al., Tennessee Law of Evidence § 608.6). We agree with this rationale. W ith these

principles in mind, we must decide whether the trial court erred by preventing the

defendant from cross-examining Mrs. Watson concerning prior bad acts.



                                          1. Bad Check Allegations

                  The defendant contends that the trial court erred by not allowing her to

question Mrs. Watson about the bad checks that were written out of Mrs. Watson’s

account in 1989 and the checks that were written on her daughter’s account. Initially,

we note that Mrs. Watson’s involvement in passing bad checks would be probative of

her credibility. Also, both sets of checks were written within ten years of the

commencement of this case. Thus, the condition in Rule 608(b)(2), Tenn. R. Evid., has

been satisfied, and the trial court should have permitted the defendant to cross-

examine Mrs. Watson about the checks if it found a reasonable factual basis for the

questioning and the probative value of the questioning was not outweighed by the risk

of unfair prejudice. See Tenn. R. Evid. 608(b).



                  Although the trial court held a hearing on the matter, it did not articulate its

reason for forbidding the defendant from questioning Mrs. Watson about the checks

she was indicted for writing in 1989. With respect to the 1989 checks, the defendant

presented the testimony of Mr. McJunkin and Officer Matthews. Both testified that two

out of three witnesses identified Mrs. Watson as the person who wrote bad checks to K-

Mart for merchandise and then attempted to return the merchandise.2 Although the

state presented some proof to the contrary, we believe that based on the testimony of

Mr. McJunkin and Officer Matthews, the defendant demonstrated that she had a

reasonable basis for questioning Mrs. Watson about the 1989 checks.



                    2
                      Although we recognize that this testimony is hearsay under Tenn. R. Evid. 801, a trial
cou rt is no t bou nd by t he ru les of evide nce whe n it co nsid ers a prelim inary q ues tion o f adm issib ility,
excep t those w ith respec t to privileges. T enn. R. E vid. 104.

                                                           21
               However, we also recognize that Mrs. Watson would have denied writing

the 1989 checks and the checks out of her daughter’s account if the defendant had

cross-examined her about them. Mrs. Watson adamantly denied writing the 1989

checks when she was questioned about them during the pretrial hearings. Given Mrs.

Watson’s denial, we conclude that the trial court acted within its discretion in preventing

the defendant from questioning Mrs. Watson about the checks. See United States v.

Marvin, 720 F.2d 12, 14 (8th Cir. 1983) (upholding trial court’s decision prohibiting

cross-examination regarding insurance fraud after witness denied conduct in jury-out

hearing).



               With respect to the checks that were written on Ms. Anderson’s account,

the trial court stated:

               Now, as far as this young lady’s testimony I don’t know, but
               she didn’t take out any charges, and Mrs. Watson has never
               been convicted of anything. She didn’t see her mother write
               the checks. The checks have not been produced. Nobody
               has said that that’s her signature. It’s evidently not been paid.
               I mean for me to allow you to ask her even under, and of
               course I couldn’t let her testify under 608 as to specific
               instances. I could if I felt the probative value outweighed the
               prejudicial allow you to ask Mrs. Watson about this, but on the
               basis of extrinsic evidence I don’t find anything in her testimony
               other than her supposition that her mother wrote these checks
               to allow you to base that question on. I think that the way you
               are trying to connect is through the checks we have ruled on,
               that she has written bad checks in her life. There’s no
               question about that.

We believe that the trial court acted within its discretion in preventing the defendant

from questioning Mrs. Watson about the checks written out of her daughter’s account.



               Under Rule 608, Tenn. R. Evid, the defendant was not required to prove

conclusively that Mrs. Watson wrote checks out of Ms. Anderson’s account. As

previously discussed, the rule only required the defendant to demonstrate a

“reasonable factual basis” for questioning Mrs. Watson about the checks. In our view,

the defendant met her burden by presenting the testimony of Ms. Anderson. Ms.



                                              22
Anderson testified that she quit using her checking account and left around twenty

dollars in it. Ms. Anderson saw one of her checkbooks in Mrs. Watson’s pocketbook

and later learned that several bad checks had been written on her account. Although

Ms. Anderson’s testimony is not overwhelming proof that Mrs. Watson wrote the

checks, it does provide a reasonable factual basis for the defendant to question Mrs.

Watson about the checks.



             However, similar to questions concerning the 1989 checks, the

undisputed testimony at the pretrial hearings reflects that had the defendant cross-

examined her about the checks written on her daughter’s account, Mrs. W atson would

have adamantly denied writing them. Jackie Anderson testified that she had argued

with Mrs. Watson and that Mrs. Watson denied writing the checks. Given this

testimony, we cannot say that the trial court abused its discretion when it concluded that

the probative value of the questioning did not outweigh the danger of unfair prejudice.



                               2. Prior Suicide Attempts

             The defendant sought to introduce proof that Mrs. Watson was using a

mental illness in a manipulative manner when she tried to commit suicide before her

admission to a hospital in 1976. The trial court excluded any proof of Mrs. Watson’s

prior suicide attempts as being too remote. It is unclear from the record whether the

defendant sought to question Mrs. Watson regarding the prior suicide attempts or

whether the defendant just wanted to present the testimony of Dr. Corey.



             In any event, the defendant was not entitled, under Rule 608, to cross-

examine Mrs. Watson about the prior suicide attempts. The prior suicide attempts

occurred more than seventeen years before the prosecution in this case. Thus, the trial

court acted within its discretion in preventing cross-examination on the subject because




                                           23
the probative value of the evidence did not substantially outweigh its prejudicial effect.

See Tenn. R. Evid. 608(b)(2).



                     3. Fraudulent Conduct During Prior Marriage

              The trial court was also justified in preventing the defendant from

questioning Mrs. Watson about her alleged conduct during her marriage to Stoney Jack

Anderson. The alleged conduct occurred more than seventeen years before the

offenses in this case. Given the remoteness of the conduct, the trial court was justified

in preventing the defendant from questioning Mrs. Watson about it unless its probative

value substantially outweighed its prejudicial effect. See Tenn. R. Evid. 608(b). On the

record before us, we cannot say that the trial court abused its discretion when it

determined that the probative value did not substantially outweigh the prejudicial effect.



                II. VICTIM’S IDENTIFICATION OF DEFENDANT

              Next, the defendant contends that the trial court erred by refusing to

exclude Mrs. Watson’s in-court identification of the defendant. The state counters that

the trial court was correct in concluding that the pretrial identification procedures were

not unduly suggestive and that Mrs. Watson’s in-court identification of the defendant

was therefore proper.



              The defendant made a pretrial motion to suppress Mrs. Watson’s

identification of her. During a hearing on the motion, Officer Anthony Benefield testified

that Officer Hyden went to the hospital and took a statement from Mrs. Watson at 12:15

p.m. on the day of the offenses. Officer Benefield said that at that time Mrs. Watson

described the defendant as being a sixteen or seventeen-year-old white female that

was five feet and six or seven inches tall and weighed around one hundred pounds.

Officer Benefield said that officers were also looking for someone who could have been

with Shannon Blaylock.


                                             24
              Officer Benefield explained that officers picked up the defendant in Rhea

County. He said that he met up with the defendant at the Rhea County Sheriff’s

Department about 5:00 p.m. on October 31. Officer Benefield said that the defendant

agreed to go to Bradley County. He said that he gave instructions for the defendant to

be photographed while she was in Rhea County but that her picture may have been

taken in Bradley County. In any event, Officer Benefield testified that the defendant

was at the Bradley County Sheriff’s Department at around 9:00 p.m when officers took

photograph arrays to Mrs. Watson’s house and Mrs. W atson picked out the defendant’s

photograph.



              Officer Benefield identified two photograph arrays that were shown to Mrs.

Watson. Each array contains six pictures of white females. Officer Benefield admitted

that he did not tell the defendant that her picture was going to be used in the array. He

said that he also did not tell the defendant that she needed an attorney. He said that

he did not have the defendant sign any waiver of her rights before her picture was taken

because she was not in custody at the time.



              Officer Benefield said that he talked to Mrs. Watson on November 1 and

that she told him that the defendant was ugly and had a possible cleft palate. He said

that Mrs. Watson picked the defendant out of a live lineup at the jail on November 2.



              At the conclusion of proof on the matter, the trial court ruled:

              I am going to provisionally overrule the motion to suppress
              both the line-up, photo and the live line-up. And let me say for
              the record I have looked at all the photo line-ups, . . . but I can’t
              imagine how you could get a fairer group of white females in a
              local jail facility than they were able to compile for purposes of
              this line-up. Also I may commend them on the video taping of
              the line-up. It left no question in the court’s mind about the
              identification and the proper process being used to establish
              the identification of Samuel Scott Minton and Angela Manning
              in the eyes of the victim as the perpetrators or part of the
              perpetrators of the crime for which they are charged.



                                              25
At trial, Mrs. Watson identified the defendant, and the jury viewed the photograph

arrays and the videotaped lineup.



              Although the defendant argues that the trial court should not have allowed

Mrs. Watson to identify the defendant at trial, she has failed to articulate why she

believes that the pretrial identification procedures were unduly suggestive. Instead, she

argues that Mrs. Watson’s identification of her is not credible under a totality of the

circumstances because Mrs. Watson described the defendant in more detail after she

picked the defendant out of a lineup.



              Police first interviewed Mrs. Watson at the hospital at 12:15 p.m., within

two hours of the offenses. We cannot say that the fact that Mrs. Watson only described

the defendant in general terms at that time rendered her later identification of the

defendant unreliable. We have reviewed the photograph array and the lineup and

conclude that they were not unduly suggestive. See, e.g., Simmons v. United States,

390 U.S. 377, 88 S. Ct. 967 (1968). Thus, the trial court did not err by admitting Mrs.

Watson’s identifications of the defendant.



        III. ESPECIALLY AGGRAVATED BURGLARY CONVICTION

              Although not raised by the parties, the defendant’s conviction for

especially aggravated burglary violates T.C.A. § 39-14-404(d). The statute “prohibits

using the same act to prosecute an accused for both especially aggravated burglary

and another offense.” State v. Oller, 851 S.W.2d 841, 843 (Tenn. Crim. App. 1992).

In this case, the defendant was convicted of especially aggravated robbery and

especially aggravated kidnapping based, in part, on the serious bodily injury Mrs.

Watson suffered. Under these circumstances, T.C.A. § 39-14-404(d) prohibits a

conviction for especially aggravated burglary. We recognize this as plain error, see




                                             26
Tenn. R. Crim. P. 52(b), and reduce the defendant’s conviction for especially

aggravated burglary to aggravated burglary.



              Also, we need not remand this case for the imposition of a sentence for

the aggravated burglary conviction because the record before us is sufficient for us to

impose an appropriate sentence. When imposing a sentence, we must consider (1) the

evidence received at the trial and sentencing hearing, (2) the presentence report, (3)

the principles of sentencing and arguments as to sentencing alternatives, (4) the nature

and characteristics of the criminal conduct, (5) any mitigating or statutory enhancement

factors, (6) any statement that the defendant made on his own behalf and (7) the

potential for rehabilitation or treatment. T.C.A. §§ 40-35-102, -103 and -210; see

Ashby, 823 S.W.2d 166, 168 (Tenn. 1991); State v. Moss, 727 S.W.2d 229, 236-38

(Tenn. 1986).



              The only enhancement factor the trial court found relative to the burglary

conviction was T.C.A. § 40-35-114(6), involving particularly great injury to a victim or

particularly great amount of property taken from a victim. The trial court applied factor

(6) because it concluded that the amount of property taken from Henry Farr was

particularly great as it represented his life savings that he had planned to use to pay for

his and his wife’s burial expenses. This factor also applies to enhance the defendant’s

conviction for aggravated burglary based on the injuries Mrs. Watson suffered. The trial

court found no applicable mitigating factors. The record supports the trial court’s

findings and we rely upon them in our consideration of an appropriate sentence for the

defendant as a Range I, standard offender.



              Beginning with the presumptive minimum sentence of three years, see

T.C.A. § 40-35-112(b)(3), -210(c), and applying the applicable enhancement factor, we

conclude that the record supports a four-year sentence for the aggravated burglary



                                            27
conviction, to be served concurrently with the remaining sentences in this case. Also, a

fine of ten thousand dollars is imposed.



             In consideration of the foregoing, the defendant's conviction for especially

aggravated burglary is modified to aggravated burglary and a four-year sentence and

ten-thousand-dollar fine are imposed. The judgments of conviction for especially

aggravated kidnapping, especially aggravated robbery, five counts of aggravated rape,

conspiracy to commit aggravated burglary, and theft of property valued over one

thousand dollars are affirmed.


                                                             Joseph M. Tipton, Judge


CONCUR:




Gary R. Wade, Judge




Joe D. Duncan, Special Judge




                                           28
