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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE JUNE SESSION, 1999

FILED

October 18, 1999 Cecil Crowson, Jr. Appellate Court Clerk

STATE OF TENNESSEE, Appellee, vs. STEVEN OTIS NICELY, Appellant.

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No. 03C01-9805-CR-00174 KNOX COUNTY Hon. Richard Baumgartner, Judge (Rape of a Child; Agg. Sexual Battery)

For the Appellant: Tommy K. Hindman and Laura E. Metcalf Attorneys NationsBank Bldg., Suite 700 550 Main Avenue Knoxville, TN 37901 (ON APPEAL)

For the Appellee: Paul G. Summers Attorney General and Reporter

Todd R. Kelley Assistant Attorney General Criminal Justice Division 425 Fifth Avenue North 2d Floor, Cordell Hull Building Nashville, TN 37243-0493

Mark Stephens Knox County Public Defender John Halstead Asst. Public Defender 1209 Euclid Avenue Knoxville, TN 37921 (AT TRIAL)

Randall E. Nichols District Attorney General Charm Knight Asst. District Attorney General City-County Building Knoxville, TN 37902

OPINION FILED: AFFIRMED

David G. Hayes, Judge

OPINION

The appellant, Steven Otis Nicely, was convicted by a jury in the Knox County Criminal Court of one count rape of a child and one count aggravated sexual battery. The trial court imposed a twenty-two year sentence for rape of a child and an eleven year sentence for aggravated sexual battery. The sentences were ordered to run concurrently. On appeal, the appellant raises four issues for our review: (1) the sufficiency of the evidence; (2) whether the jury verdict of rape of a child and aggravated sexual battery violate the protections of double jeopardy; (3) whether the trial court improperly limited the cross-examination of specific prior instances of the victim's sexual conduct under Tenn. R. Evid. 412(c)(4)(ii); and (4) whether the trial court erred by refusing to charge the jury with range of punishment.

After review, we affirm the judgment of the trial court.

BACKGROUND In the summer of 1994, N.B.,1 the victim, the victim's mother, Wilma Faye Wynn, and the appellant lived in the Karns community of Knox County. Ms. Wynn and the appellant began their relationship around 1992. In 1994, they began living together. N.B. was eleven years old and entering the sixth grade at that time. Although the thirty-seven year old appellant and the victim's mother were unmarried, N.B. viewed the appellant as a "father figure." In September of 1995, the victim confided in a friend that she and the appellant had been involved in sexual activity. In January of 1996, the appellant was charged in a two count indictment with rape of a child and aggravated sexual battery. 2

It is the policy of this court to re fer to child vic tims of sexua l abuse b y their initials. State v. Schimpf, 782 S.W .2d 186, 1 88 n.1 (T enn. Cr im. Ap p. 1989) . The "open dated" indictment charged both offenses occurred between "__ day of June, 1994, an d on diver s and d iverse da tes betw een that d ate and th e __ day o f Septem ber, 199 5."
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At trial, she testified, providing no specific dates, that the "touchin' happened all the time" in his room, the living room, and the kitchen. She testified that the appellant had touched her vagina with his penis and his mouth. The victim admitted that she would go into the appellant's room because she liked the attention. She stated that during the incidents of abuse, she remained clothed but the appellant was unclothed.

The victim recounted that the first sexual encounter occurred when she and the appellant were watching television in his bedroom. The appellant began rubbing her back and eventually removed her bra and began rubbing her stomach and chest. Frightened, the victim left the room. The appellant followed her outside and told her that if she told they would both be "in trouble."

Another incident occurred in the living room, when the appellant digitally penetrated her vagina. She testified that on another occasion he put her hand on his penis and she masturbated him until he ejaculated. Yet, another offense occurred in the victim's brother's room. The appellant put his hands on her and asked if she had had sex standing up before. This offense ceased when the victim's mother returned home from work.

The victim testified that on or about September 3, 1995, the appellant got out of the shower and had a towel wrapped around him. The victim had entered his room to retrieve a towel for herself. The appellant pulled her onto the bed where they both began touching each other. The appellant then penetrated the victim's vagina with his penis. When she complained that it hurt, he stopped. She stated that she liked the appellant to fondle her; however, the penetration scared and hurt her.

Later that same day, the appellant took the victim and her brother to the lake.

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The appellant dropped her brother off at the bank with other children while he and the victim went riding in the boat. The appellant gave the victim a Valium for a headache. After entering a cove on the lake, the appellant gave the victim a beer. That evening, when the appellant and her mother were away at a concert, the victim drank some liquor, locked herself in the bathroom, and passed out. Her brother called Debbie, their father's girlfriend, who took the victim to her trailer in Powell. It was on this occasion that the victim related to Debbie her sexual encounters with the appellant. Debbie called the victim's mother and advised what the victim had told her.

A few days later, the victim spoke with the Department of Human Services (DHS). She told the DHS case worker that the appellant had only penetrated her once. However, she did tell DHS that he had touched her before. DHS referred the victim to a psychologist at St. Mary's Hospital. The victim stated that she was very unhappy at the time because "[e]verything came out." The victim remained at the hospital for nine days. After leaving the hospital, the victim was placed in Peninsula Lighthouse for further treatment for two months. Next, the victim was placed in PAASAC where she received continued counseling.

The victim stated that she had never been penetrated before the actions by the appellant. However, during the time that the appellant was abusing her, she was digitally penetrated by another boy while they were kissing.

On cross-examination, the victim stated that her mother drank heavily during the times of these offenses and they were experiencing various conflicts in their relationship. The victim's domicile fluctuated back and forth between living with her father and mother. She admitted telling the psychologist that she had provoked the appellant by grabbing his genitals and removing the covers from the bed in which he was lying. She admitted that her story had changed from the time she talked to

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DHS and her testimony in court.

The victim also told the psychologist that she smoked marijuana and that she heard voices. However, she denied telling the psychologist of any specific instances of alcohol or marijuana abuse. She stated that the entire time was very confusing for her, however, she "did not hallucinate and [was] not mental."

James Nicely, the appellant's brother, testified that he talked to the appellant on two occasions about his sexual involvement with the victim. The appellant told him that the victim was "comin' on to him." On the second occasion, the appellant asked for his help. The appellant related that the victim had pulled the towel off of him and climbed on top of him while he was asleep. When he awakened, there was a wet spot on the sheets. Further, the appellant related that he had performed oral sex on the victim at the lake.

Also, testifying for the State was Nancy Jackson, an employee of the Blount Memorial Emotional Health and Recovery Center, where the appellant had apparently submitted himself for evaluation and/or counseling. Unfortunately, the testimony of Ms. Jackson is not included in the record.3 An exhibit to her testimony includes the following interview notations: "she touches/grabs him in an inappropriate way for [sic] past year. . . states he allowed her to masturbate him. . . I am really worried that I might be a child molester."

After resting its case-in-chief, the State elected two offenses pursuant to the requirements of State v. Shelton, 851 S.W.2d 134, 136 (Tenn. 1993). For the rape of N.B., the State elected the offense on or about September 3 which occurred in

Volume II of the trial transcript ends with page 172 while volume III begins with page 202, omitting nearly thirty pages of transcript from the record. From the table of contents, we note that this contains a large portion of the State's proof, i.e., the remainder of the cross examination of James Nicely and the testimony of Nancy Jackson. The obligation of preparing a com plete and adequ ate reco rd for the is sues p resente d on app eal rests u pon the a ppealing party. See Tenn. R. App. P. 2 4(b).

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the appellant's bedroom the same day that the appellant, the victim, and her brother went to the lake. With regard to the aggravated sexual battery, the State elected the offense which involved masturbation of the appellant; this type of sexual contact occurring only on the one occasion.

The defense presented the testimony of Dr. Jeffrey Davis, a clinical psychologist employed at St. Mary's Health System, who treated the victim. From his report, he testified that the victim and her mother had a "tumultuous" relationship and she felt abandoned by her father. The victim had reported using Valium, alcohol, and marijuana and attempts to overdose on drugs. She told the psychologist that she was experiencing auditory hallucinations in which she heard people swimming and laughing when she stared outside her window. At one point, she said that she saw a giant eraser chasing her around her school classroom. Moreover, she reported seeing "mannequin-like Indians" staring at her.

The victim told the psychologist that she felt close to the appellant because he took care of her mother. She acknowledged that she had been provocative toward the appellant and that she enjoyed the attention she received from him. The psychologist opined that possibly the victim had perceived the relationship as a means to strain the relationship between the appellant and her mother. Davis diagnosed the victim with major depression, "severe without psychotic features," alcohol and cannabis abuse, and post-traumatic stress disorder. The psychologist recommended that the victim be placed on medication, in-patient treatment, family intervention, and chemical dependency treatment. Although the psychologist did not feel that her hallucinations were valid in the "true psychotic sense," he felt they were a product of her imagination and fantasy.

Wilma Wynn, the victim's mother, testified that her daughter has a history of lying. Ms. Wynn stated that her daughter expressed much distaste for her new

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environment in Karns and blamed her mother for her father not being around. She related that she and the victim's father were not on good terms because he did not provide any support for his children. Ms. Wynn testified that her daughter had a habit of opening the shower door on people, removing covers from the bed while people were under them, and entering her bedroom. She stated that the appellant had asked her to lock the bedroom door when she left for work in the mornings. The appellant also began sleeping in blue jean shorts as opposed to the nude. She recounted an incident on Valentine's Day when the appellant had bought her a ruby ring. The victim became extremely jealous and angry until the appellant also bought her a ring.

Ms. Wynn stated that the victim has told her on different occasions that the appellant sexually abused her. Then, on other occasions, the victim denied that the appellant abused her. Although her daughter was given a pregnancy test upon admission to the hospital, no test was performed to determine whether the victim was sexually active.

Tiffany Wallace, a friend of the victim, presently incarcerated at the juvenile detention center, testified that the victim was a chronic liar. She stated that, prior to the victim's admission to Lighthouse, she and the victim were taking Valium, smoking marijuana, and drinking alcohol on a regular basis.

I. SUFFICIENCY OF THE EVIDENCE First, the appellant challenges the sufficiency of the convicting evidence to sustain a verdict of guilt for rape of a child and aggravated sexual battery. A jury conviction removes the presumption of innocence with which a defendant is cloaked and replaces it with one of guilt, so that on appeal, a convicted defendant has the burden of demonstrating that the evidence is insufficient. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). In determining the sufficiency of the evidence, this

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court does not reweigh or reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). On appeal, the State is entitled to the strongest legitimate view of the evidence and all reasonable inferences which may be drawn therefrom. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992), cert. denied, 507 U.S. 954, 113 S.Ct. 1368 (1993). Viewing the evidence under these criteria, it is this court's responsibility to affirm the conviction if the proof was sufficient for any rational trier of fact to have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 317, 99 S.Ct. 2781, 2789 (1979); State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994), cert. denied, 513 U.S. 1086, 115 S.Ct. 743 (1995); Tenn. R. App. P. 13(e).

First, within his sufficiency arguments, the appellant contends that the victim is unbelievable because she changed her testimony concerning (1) the number of times and the places where the abuse occurred; (2) her alcohol and drug use; and (3) her previous sexual experiences. Thus, the appellant's challenge is one of witness credibility. In essence, the appellant requests that this court trespass upon the jury's responsibility to evaluate the credibility of the victim, N.B. It is not the duty of this court to revisit questions of witness credibility on appeal, that function being within the province of the trier of fact. See generally State v. Adkins, 786 S.W.2d 642, 646 (Tenn. 1990); State v. Burlison, 868 S.W.2d 713, 718-719 (Tenn. Crim. App. 1993). Although inconsistencies or inaccuracies may make the witness a less credible witness, the jury's verdict will not be disturbed unless the inaccuracies or inconsistencies are so improbable or unsatisfactory as to create a reasonable doubt of the appellant's guilt. We decline the appellant's invitation to overturn his

convictions by making a choice different from that of the jury.

Next, the appellant challenges his conviction for rape of a child. Specifically, he contends that "the evidence was inconclusive as to whether sexual penetration even occurred." He argues that the appellant never mentioned sexual penetration at

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the hospital, to his father, or to his brother. Moreover, he asserts that penetration was never proven because no physical examination was performed on the victim. The State contends that physical evidence is not required for a conviction and the victim's testimony of penetration alone was sufficient to support the verdict.

To support a conviction for rape of a child, the State is required to prove an "unlawful sexual penetration of a victim by the defendant or the defendant by a victim, if such victim is less than thirteen (13) years of age." Tenn. Code Ann.

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