      IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT NASHVILLE                FILED
                      SEPTEMBER 1996 SESSION
                                                           May 30, 1997

                                                        Cecil W. Crowson
                                                       Appellate Court Clerk
STATE OF TENNESSEE,             )
                                ) C.C.A. No. 01C01-9512-CC-00404
      Appellee,                 )
                                ) Lawrence County
V.                              )
                                ) Honorable Jim T. Hamilton, Judge
                                )
TERRY ALLEN DOMINY,             ) (Spousal Rape - 3 counts)
                                )
      Appellant.                )




FOR THE APPELLANT:                 FOR THE APPELLEE:

Shara A. Flacy                     Charles W. Burson
District Public Defender           Attorney General & Reporter

William C. Bright                  Michael E. Moore
Assistant Public Defender          Solicitor General
P.O. Box 1208
Pulaski, TN 38478                  Gordon W. Smith
                                   Associate Solicitor General
                                   500 Charlotte Avenue
                                   Nashville, TN 37243-0497

                                   T. Michael Bottoms
                                   District Attorney General
                                   P.O. Box 459
                                   Lawrenceburg, TN 38464

                                   Stella L. Hargrove and
                                   James G. White II
                                   Assistant District Attorneys General
                                   Maury County Courthouse Annex
                                   Columbia, TN 38401




OPINION FILED: ___________________


REVERSED AND REMANDED FOR SENTENCING


PAUL G. SUMMERS,
Judge


                               OPINION
        A jury convicted the appellant, Terry Allen Dominy, of three counts of

aggravated rape. He was sentenced to twenty-five years on each count. The

sentences were ordered to run consecutively. He raises seventeen issues on

appeal. Upon review, we reverse and remand for substitution of three spousal

rape convictions and sentencing.



                                             FACTS



        The appellant asked his wife to have sexual intercourse with his dog. 1

When she refused, he bound her wrists and ankles with duct tape. He placed a

strip of tape across her mouth. He then forced his dog to have sexual

intercourse with his wife.2



        The appellant's wife testified. She stated that the appellant had been

drinking and smoking "dope" prior to the assault. She was "scared." She stated

that the insertion of the dog's penis hurt her vagina. The assault continued for

"ten to fifteen minutes." She further stated that the appellant laughed while his

dog was penetrating her.



        On two other occasions, the appellant forced his wife to have sexual

intercourse with his dog. On the second occasion, the appellant begged his wife

to have sexual intercourse with the dog. She refused, so he slapped her and

bound her with duct tape. Prior to the third assault, the appellant's wife had

hidden the duct tape. The appellant searched for, but was unable to find, the

tape. He then physically and verbally assaulted his wife until she submitted to




        1
         Testimony indicates that the appellant became fetishly aroused when viewing sexual
intercourse between his dog and his wife.

        2
         The appellant manipulated the dog's penis until the dog became aroused. He then placed
the dog's penis inside his wife's vagina.

                                                -2-
having sexual intercourse with his dog. The appellant had sexual intercourse

with the victim after the dog finished.3



                        LIMITED SPOUSAL EXCLUSION TO RAPE



         The appellant argues that the evidence is legally insufficient to support a

conviction for aggravated rape. He maintains that because he was married to

the victim, he cannot be convicted of aggravated rape. The state concedes that

the appellant was married to the victim and that his conviction for aggravated

rape cannot stand. Regrettably, due to these sordid facts, we must agree with

the state's concession.



         Pursuant to Tenn. Code Ann. § 39-13-507(a), one cannot commit

aggravated rape or rape if the victim is his or her legal spouse.4 The appellant is

correct in his contention that Tennessee's spousal exclusion statute provides him

with immunity from both rape and aggravated rape prosecution. The record

contains an abundance of proof showing the appellant and the victim were

married. Moreover, the state stipulates to this fact. Accordingly, the appellant's

convictions for aggravated rape are reversed. We will now address what crimes

the appellant did commit.




                                           SPOUSAL RAPE


         3
         The appellan t gave a statem ent where he adm itted that his wife had se xual intercours e with
his dog. He, however, maintained

         . . . it was a mutual cons ent thing. It was my idea but I didn't force her to do it. W e
         had been drinking and watching a dirty movie and I said something about it. [She]
         said "[t]hat's nasty" and I said nasty is only in your mind, why don't you try it. She
         said okay and she went outside and go t the dog. . . .

         4
          "A person does not commit [aggravated rape, rape, aggravated sexual battery, sexual
battery, or statutory rape] if the victim is the legal s pouse of the perp etrator. . . ." Tenn. Code Ann. §
39-13-507(a) (1991).

                                                     -3-
      Although the appellant's actions cannot constitute aggravated rape, his

unlawful sexual penetration of a spouse may, however, constitute spousal rape.

Spousal rape is defined as:

      [T]he unlawful sexual penetration of one spouse by the other
      where:
              (A) The defendant is armed with a weapon or any article
      used or fashioned in a manner to lead the victim to reasonably
      believe it to be a weapon;
              (B) The defendant causes serious bodily injury to the
              victim; or
              (C) The spouses are living apart and one (1) of them has
      filed for separate maintenance or divorce.

Tenn. Code Ann. § 39-13-507 (b)(1) (1991).



      The appellant contends that he cannot be convicted of an offense which is

not charged in the indictment or which is not a lesser included offense of the

indicted charge. Because spousal rape is not a lesser included offense of

aggravated rape, he claims that the most he can be convicted of is the lesser

included offense of simple assault. We disagree.



       The appellant is correct in his contention that spousal rape is not a lesser

included offense of aggravated rape. A spousal rape conviction requires proof of

a legal marriage between the accused and the victim, an element not required

for an aggravated rape conviction. However, spousal rape is a lesser grade of

aggravated rape. State v. Trusty, 919 S.W.2d 305, 313-14 (Tenn. 1996). In

Trusty, our Supreme Court held that a lesser grade of an indicted offense may

form the basis for a conviction as long as there is evidence in the record to

support a conviction on the greater offense. Id.



      This Court finds that the appellant can be and is convicted of three counts

of spousal rape. A jury found that the appellant had committed all of the




                                        -4-
elements necessary to constitute aggravated rape by use of a deadly weapon.5

The record contains an abundance of evidence proving the appellant and the

victim were legally married. Furthermore, the state concedes that they were

married. Therefore, we find the appellant guilty of three counts of spousal rape.

We remand to the trial court for sentencing on three counts of spousal rape,

which judgments are substituted for the aggravated rape convictions.



           JUDGMENT OF ACQUITTAL AND DEFENSE INSTRUCTION



        The appellant argues that the trial judge erred in overruling his motion for

judgment on the aggravated rape convictions. The appellant's third issue asserts

that the trial court erred in refusing to instruct the jury that legal marriage was an

absolute defense to aggravated rape. Our reversal of the aggravated rape

convictions renders these issues moot.



                       FAILURE TO SPECIFY MENTAL ELEMENT



        The appellant argues that the indictment failed to specify a requisite

mental element of aggravated rape. He, therefore, contends that the indictment

is invalid and the trial court lacked jurisdiction to try him. We disagree.



        The requisite mental element of aggravated rape is intentional, knowing,

or reckless. Tenn. Code Ann. § 39-11-301(c) (1991). Mental elements may be

implied. See State v. Marshall, 870 S.W.2d 532, 538 (Tenn. Crim. App. 1993)

(holding intention to sell language necessarily implied knowing possession).




        5
          The appellan t on three occasion s, forced a large do g onto his approx imately 68 pound wife.
He manipu lated the dog's penis into her vagina. Th e victim testified that the dog was, appa rently,
angered. The dog attempted to bite the appellant and did scratch the victim. A large dog, under these
circumstances, is quite capable of causing serious bodily injury. A rational trier of fact could, and
indeed did in this cas e, find the dog to be a dan gerous weapo n.

                                                  -5-
       The appellant was charged with three counts of aggravated rape. The

indictment alleged that the appellant:

       did unlawfully, forcibly, or coercively, while armed with a weapon or
       article used or fashioned in a manner to lead [the victim]
       reasonably to believe it to be a weapon, sexually penetrate [the
       victim] in violation of T.C.A. 39-13-502, all of which is against the
       peace and dignity of the State of Tennessee.

One acting forcibly acts intentionally. Accordingly, one could infer from the

language in the indictment that if the appellant forcibly raped the victim, he

intentionally raped the victim. The requisite mental element has been implied.

Notwithstanding mootness, this issue is without merit.



TRIAL JUDGE RESIDING IN HOME OWNED BY PROSECUTING ATTORNEY



       The appellant argues that the trial judge erred in failing to disclose that he

resided, during trial, in a residence owned by the prosecuting attorney. He

contends that the trial judge should have recused himself.



       The prosecuting attorney owned a farm in the area on which there were

apparently four separate residences. The trial judge stayed at one of those

residences during the trial. He paid the utility bill, telephone bill, and cable bill

incurred during his stay.



       Judges are to avoid the appearance of impropriety. Tenn. R. Supr. Ct.,

Rule 10. Residing on a prosecuting attorney's property during trial creates an

appearance of impropriety. Trial judges should refrain from such activity. Even if

the situation is innocent, it appears improper.



       The appellant frames the issue as an abuse of discretion. The appellant,

however, has not provided this Court with a transcript of the recusal motion. We

must presume that the trial court ruled correctly when the record we are




                                           -6-
reviewing is incomplete. State v. Mathews, 805 S.W.2d 776, 784 (Tenn. Crim.

App. 1990). Notwithstanding waiver, we are unable to find, under a plain error

analysis, that the appellant was prejudiced by the trial judge's actions. This issue

is without merit.



                           EVIDENCE OF PRIOR RAPE



       The appellant argues that the trial judge committed reversible error in

refusing to allow a complete offer of proof. We disagree.



       At trial, appellant's counsel moved to offer evidence pursuant to Tenn. R.

Evid., Rule 412. The trial judge permitted the appellant to call several witnesses

in making his offer of proof. The victim was called as a witness. The appellant's

counsel asked her if she was raped by her brothers when she was thirteen years

old. The victim responded affirmatively. Counsel asked her whether a dog was

used in the rape. She again responded affirmatively. Counsel then asked

whether the dog was placed on top of her. The state objected. The court

refused to allow counsel to continue.



       The victim's brothers testified in the appellant's offer of proof. J. B. denied

having knowledge of his sister being raped when she was a teenager. W. B.

also denied having knowledge of the alleged rape. W. B. was then asked

whether his sister would be lying if she said that he raped her with a dog when

she was thirteen. He responded, "I don't know. Did she say that?"



       The appellant maintains that he was erroneously prevented from making a

complete offer of proof. In a related issue, the appellant asserts that he should

have been allowed to offer evidence, pursuant to Tenn. R. Evid., Rule 412(b)

and (c), of the victim's prior rape. He argues that the evidence was both relevant

and admissible as impeachment evidence.



                                         -7-
        Rule 412 permits introduction of a victim's sexual history to prove consent

under very limited circumstances. First, the evidence must be of "specific

instances of [the] victim's sexual behavior . . . with persons other than the

accused." Tenn. R. Evid., Rule 412(c)(4) (emphasis added). Both "instances"

and "persons" are plural. The plural form is significant because Rule 412

requires that the evidence be of a "pattern" of sexual behavior. Accordingly, to

satisfy the stringent requirements of Rule 412, the appellant must proffer

admissible testimony from multiple witnesses relating multiple incidents of sexual

behavior.



        The appellant's offer of proof referred to a single prior incident of sexual

behavior. This single incident did not establish a pattern of conduct as required

by Rule 412. Moreover, the victim testified that the prior sexual behavior was

nonconsensual. Evidence of the prior nonconsensual act did not prove consent

to the instant charged acts. The evidence was, therefore, not admissible as Rule

412 impeachment evidence on the issue of consent.6



                                     PRIOR STATEMENT



        The appellant argues that a statement he made to the police should have

been excluded from trial. He argues that the statement showed a prior bad act

and that the state failed to provide proper notice to introduce the statement. We

disagree.



        The appellant provided the police with a written statement. The statement

was in response to the question, "What can you tell me about the allegations that

you forced your wife to have sex with your dog?" The appellant responded:




        6
         The proffered evidence was also inadmissible to show a propensity to fabricate a complaint
of rape with a dog. Whether sexual contact occurred was not a disputed issue. The appellant
admitted that the sexual behavior occurred. His position, however, was that the sexual behavior was
consensual.

                                                -8-
       Yes, but it was a mutual consent thing. It was my idea but I didn't
       force her to do it. We had been drinking and watching a dirty
       movie and I said something about it. [The victim] said "That's
       nasty" and I said nasty is only in your mind, why don't you try it.
       She said okay and she went outside and got the dog. She laid
       back on the couch and the dog licked her and she had an orgasm.
       Within five minutes I had sex with her. I would rather she do it with
       my dog than a friend because the dog don't know any better. The
       first time it happened was at her mother's house on New Year's
       about four months before we were married. The other time was
       August of 1993 at our house in Leoma. I never forced her to do it.

The statement was reduced to writing and introduced at trial.



       The statement was admissible as a party-opponent admission. Tenn. R.

Evid., Rule 803. Moreover, exculpatory statements, proven false, evidence a

consciousness of guilt. The statement was, therefore, both relevant and

admissible. This issue is without merit.



                         VICTIM'S TAPED STATEMENT



       The appellant next assigns error in the trial court's decision to allow the

jury to hear an audiotape of the victim's interview with the Department of Human

Services (DHS). He argues that the tape was inadmissible hearsay and

contained "prejudicial assertions." In the alternative, he argues that if the tape

had been admissible, certain prejudicial information should have been redacted.



       The record indicates that on cross-examination, the appellant's counsel

opened the door for the tape's admission. The appellant did not raise objections

on the grounds that the tape contained evidence of prior bad acts or was

improper bolstering. Moreover, the appellant's counsel did not request a

redaction. Accordingly, the issues regarding the DHS tape are either meritless or

have been waived.




                                           -9-
                             EXCESSIVE SENTENCE



       The appellant argues that his sentence was excessive and that

consecutive sentences were improper.



       The appellant was sentenced on three counts of aggravated rape, a Class

A felony. We have reversed those convictions and found the appellant guilty of

three counts of spousal rape. Spousal rape is punishable as a Class C felony.

The case is, therefore, remanded for sentencing on the spousal rape

convictions. The trial court will decide whether the new sentences shall run

consecutively.



                                  PHOTOGRAPHS



       The appellant next assigns error in the trial judge's admission of

photographs. He argues that the photographs were prejudicial and irrelevant.

We disagree.



       The admissibility of photographs rests within the sound discretion of the

trial court. The trial court's decision shall not be overturned unless it affirmatively

appears that the admission has affected the results of the trial. State v. Melson,

638 S.W.2d 342, 365 (Tenn. 1982); see also United States v. Brady, 595 F.2d

359, 361 (6th Cir. 1979). "The trend of modern authority is to vest more

discretion in the trial court in this respect." State v. Banks, 564 S.W.2d 947, 949

(Tenn. 1978). Moreover, we cannot substitute our judgment for that of the trial

court. State v. Weaver, No. 4 (Tenn. Crim. App. Jan. 3, 1985). To overturn in

the absence of an affirmative finding of abuse of discretion and prejudice, we

merely supplant the trial judge's judgment with that of our own.




                                         -10-
       The appellant has not affirmatively demonstrated that admission of the

photographic evidence prejudiced the jury's verdict. The photographs depicted

the victim's emaciated condition. They corroborated the victim's testimony that

the appellant would not let her eat and that she was too weak to resist the sexual

assaults.



       Banks recognizes the "policy of liberality in the admission of evidence in

both civil and criminal cases, including the admission of photographs." Banks,

564 S.W.2d at 949. The trial court weighs the probative value against prejudicial

effect. We cannot substitute our judgment for that of the trial court or declare

error absent a finding that the trial judge abused his discretion. Melson, 638

S.W.2d at 365.



       We have reviewed both the record and the photographs. We find neither

an abuse of discretion nor prejudice. This issue is devoid of merit.



                  EVIDENCE OF THE ALLEGED STARVATION



       The appellant next assigns error in the trial court's decision to allow the

jury to hear evidence that the appellant withheld food from the victim. He argues

(1) that the evidence constituted prior bad acts and the state failed to file a

written notice of intent to use the evidence, and (2) that the evidence was

irrelevant and its probative value was outweighed by the danger of unfair

prejudice.



                                          I



       The appellant raises the issue of written notice compliance for the first

time on appeal. This issue is waived.




                                         -11-
                                         II



       Evidence of other crimes or wrongs is inadmissible to show propensity.

Such evidence may be admissible, however, to show identity, motive, common

scheme or plan, intent, or rebuttal of accident or mistake. Tenn. R. Evid., Rule

404(b) and Advisory Commission Comments.



       The evidence is admissible under Rule 404(b). The evidence was

relevant to show intent. A reasonable inference exists that the appellant

intentionally starved the victim to keep her weak and undernourished. In a

weakened state, the victim would be unable to resist his assaults. The appellant

has not shown that the trial court abused its discretion in admitting the evidence.



                 EVIDENCE OF THREATS AND VERBAL ABUSE



       The appellant argues that the trial court erred in permitting testimony that

the appellant threatened and verbally abused the victim. Testimony revealed

that the appellant threatened to kill the victim if she sought a divorce. The

appellant asserts that the testimony was inadmissible evidence of other wrongs

because: (1) no written notice was provided, (2) the evidence was within the

purview of Tenn. R. Evid., Rule 404(b), and (3) the probative value was

outweighed by the danger of unfair prejudice.



       We have reviewed the record. No objections were raised concerning

compliance with a written notice requirement. Substantively, we are unable to

state that the trial judge abused his discretion in admitting the evidence.

Moreover, in light of the evidence, error, if any, was harmless. This issue is

without merit.




                                        -12-
                      INTRODUCTION OF THE CALENDAR



       The appellant argues that the trial court erred in permitting the introduction

of the victim's calendar. The victim had inscribed the word "dog" on the dates in

which the alleged sexual assaults occurred. The appellant maintains that

pursuant to Tenn. R. Crim. P., Rule 16, he should have been allowed to examine

the original calendar prior to trial. He also asserts that the evidence is

inadmissible hearsay.



       The state argues that a copy of the original calendar was provided to the

appellant prior to trial. The state alleges that the appellant's trial counsel did not

object to being provided with copies. The record does not indicate that defense

counsel found this arrangement unsatisfactory.



       The appellant has not demonstrated prejudice. The witness testified that

she was raped on the dates marked on the calendar. This issue is without merit.



                           EXCULPATORY EVIDENCE



       The appellant alleges that exculpatory evidence was withheld from the

defense. Specifically, he claims that a videotape depicting the victim and the

dog showed that the dog was not a deadly weapon. He claims that this

videotape was "probably" in the possession of the victim or her family and should

have been turned over to the defense.



       The record is devoid of any proof that the videotape was in either the

state's or the victim's possession. We find no affirmative evidence that the state

suppressed the videotape. The appellant has not demonstrated that the

evidence was favorable. Moreover, we find it questionable whether the evidence

was material. The record shows that a male dog may possess a great



                                         -13-
disposition yet turn dangerously violent when the animal's genitalia are

manipulated in the manner testified to in this case. This issue is without merit.



                    IMPROPER COMMENTS TO THE JURY



      The appellant's last issue argues that the bailiff made improper comments

to the jury during deliberations. While deliberating, the jury requested several

exhibits. Defense counsel objected, and the trial judge denied the jury's request.

The appellant claims that the jury foreperson then informed the jurors that they

could not examine exhibits because the defense had objected.



       The appellant's unfounded assertion appears to be purely speculative.

The claim is not supported by the record. Neither the jury foreperson nor any

juror testified that the foreperson made the objectionable statement. The trial

judge found that the bailiff did not communicate improperly with the jury. The

evidence does not preponderate against this finding. This issue is without merit.



                                   CONCLUSION



      When our General Assembly debated the limited spousal exclusion bill,

we are sure that they never contemplated as bizarre a set of facts as we have

here. One cannot imagine the base, vile, and inhumane acts that the appellant

perpetrated upon his wife. We are also certain that the legislature would want

this type of criminal conduct to be punishable as more than a Class C felony.

Hopefully, our legislature will address this issue and assess an appropriate

penalty for this wicked conduct.



      The appellant is convicted of three counts of spousal rape for the

reproachable crimes he committed against his wife. He will be sentenced for

these crimes by the trial court and judgment will be entered accordingly.


                                        -14-
inadmissable




                                 ________________________________
                                 PAUL G. SUMMERS, Judge


CONCUR:




___________________________
GARY R. WADE, Judge




___________________________
L. T. LAFFERTY, Special Judge




                                -15-
