State of Tennessee v. Danny Ray Smith

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

October 19, 2010 Session

STATE OF TENNESSEE v. DANNY RAY SMITH

Appeal from the Criminal Court for Davidson County

No. 2005-C-2438 Steve R. Dozier, Judge

No. M2009-02275-CCA-R3-CD - Filed April 13, 2011

The Defendant, Danny Ray Smith, was convicted of four counts of aggravated sexual battery,

a Class B felony, and three counts of rape of a child, a Class A felony. See Tenn. Code Ann.

§§ 39-13-504, 522. In this appeal as of right, the Defendant contends that (1) the trial court

erred by allowing the victim to testify about instances of sexual contact between her and the

Defendant other than those charged in the indictment; (2) the trial court erred by allowing a

videotape of the victim’s forensic interview to be played for the jury; (3) the trial court erred

by allowing the State to cross-examine the Defendant about an expunged criminal conviction;

(4) the evidence was insufficient to sustain the Defendant’s conviction on count two of the

indictment because the State’s proof materially varied from the allegations in the indictment;

(5) the trial court erred in denying the Defendant’s motion for a judgment of acquittal on

counts two, six, and seven; (6) the trial court erred by denying the Defendant’s motion for

a new trial which was based on newly discovered evidence; and (7) the trial court erred by

imposing partial consecutive sentences. Following our review, we affirm the judgments of

the trial court.

Tenn. R. App. 3 Appeal as of Right; Judgments of the Criminal Court are Affirmed.

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which T HOMAS T. W OODALL

and R OBERT W. W EDEMEYER, JJ., joined.

Dawn Deaner, District Public Defender; Jeffrey A. DeVasher, Assistant Public Defender (on

appeal); Jason Gichner, Assistant Public Defender (at trial); and Sharon Ruiz, Assistant

Public Defender (at trial), for the appellant, Danny Ray Smith.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulaney Faughn, Assistant

Attorney General; Victor S. Johnson, District Attorney General; Sharon Reddick, Assistant

District Attorney General; and Brian Keith Holmgren, Assistant Attorney General, for the

appellee, State of Tennessee.

OPINION

FACTUAL BACKGROUND

I. Procedural History

This case has a long and complex procedural history. The allegations leading up to

the Defendant’s trial were made in January 2005. However, the Defendant was not tried until

four years later in January 2009. The indictment alleges that the Defendant committed one

count of aggravated sexual battery and one count of rape of a child “on a day in December,

2004.” The indictment also alleges that the Defendant committed two other counts of rape

of a child and three other counts of aggravated sexual battery “on a date between January 1,

1999 and[] December 31, 2004.” In January 2006, the State filed a bill of particulars alleging

the following:

COUNT 1: The nature of the alleged acts forming the basis for the count of

Aggravated Sexual Battery. The count relates to an incident in which the

Victim, [L.H.]1 (dob [sic] [19]92), was touched in a sexual manner by the

defendant. The defendant placed his hand on the breast of the victim. This

contact took place under the clothing and is believed to have occurred in

December 2004. The defendant told her not to tell anyone or he would take

her far away or that he would hurt her.

The location of the alleged incident is believed to have occurred at a residence

at . . . Netherlands Drive, Hermitage, TN.

....

COUNT 2: The nature of the alleged acts forming the basis for the count of

Rape of a Child. This count, as do all other counts, relate to the Victim [L.H.].

The defendant rubbed the Victim’s vagina, both inside and out, with his penis.

The acts that form this count occurred at the same place and time as those of

Count 1.

1

This court refers to rape victims by their initials.

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COUNT 3: The nature of the alleged acts forming the basis for the count of

Rape of a Child. The alleged actions took place between 1 January 1999 and

1 December 2004. The Victim was eating cereal in the kitchen of her house.

The defendant entered the room wearing a towel, pulled her head back, and

placed his penis insider her mouth. He stopped when he heard the brother of

the victim. This is believed to be the first time the defendant ever did anything

of a sexual nature with the Victim.

It is believe the location of Count 3 occurred at . . . Belgium Court, Nashville,

TN.

COUNT 4: The Nature of the alleged acts forming the basis of this count of

Rape of a Child and Counts 5-7 all occurred at the same time. The mother of

the Victim was out of town and her brothers were asleep. The Defendant took

her to his room and placed his penis in her mouth.

It is unclear at this time the location of the incidents that form Counts 4-7.

COUNTS 5-7: The nature of the alleged acts forming the basis of the three

counts of Aggravated Sexual Battery. The defendant rubbed the buttocks and

breast of the Victim. He also placed his penis on the outside of the Victim’s

vagina, but is not believed to have penetrated her. The Defendant ejaculated

on the floor on this occasion and subsequently wiped it up with a towel.

Shortly after the bill of particulars was filed, the State also provided notice that it was

seeking to use the Defendant’s prior conviction for attempted bribery of a public servant as

impeachment evidence pursuant to Tennessee Rule of Evidence 609.

Between the time of these initial filings and the trial date, both the original prosecutor

and defense counsel had left the case. Shortly before trial, the State filed an amended bill of

particulars alleging the following:

COUNT 1: The nature of the alleged acts forming [] the count of Aggravated

Sexual Battery. The count relates to an incident in which the victim, [L.H.]

(dob [sic] [19]92), was touched in a sexual manner (i.e. breasts, outside her

genitals, with his penis, and with his hand) by the defendant. The contact

occurred on a date around Christmas of 2004 after the victim had returned

from a trip to Walmart [sic] with her mother and her mother had left again

leaving the victim in the home with the defendant . . . .

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It is believe[d] the location of the incident was the family’s home on

Netherlands Drive in Davidson County.

COUNT 2: The nature of the alleged acts forming the basis for the count of

Rape of a Child. Refers to the same incident as that of count 1 and relates to

the defendant touching the victim on the inside of her genitals with his penis.

COUNT 3: The nature of the alleged acts forming the basis for the count of

Rape of a Child. The alleged act [took] place between January 1, 1999 and

December 1, 2004. The victim was eating cereal in the kitchen of her house.

The defendant entered the room, pulled her head back, and place[d] his penis

in her mouth. This is believed to be the first time the defendant ever did

anything of a sexual nature with the victim.

It is believed the location of the incident was the family’s home on Belgium

Court in Davidson County.

COUNT 4: The nature of the alleged acts forming the basis of the count of

Rape of a Child. Refers to an incident that occurred [when] the mother of the

victim was out of town, most likely in July of 2004. The defendant took the

victim into his room and place[d] his penis in her mouth.

It is believe[d] the location of this incident was the family’s home on

Netherlands Drive in Davidson County.

COUNT 5: The nature of the alleged act forming the basis of the count of

aggravated sexual battery. Refers to an incident wherein the defendant

required the victim to look at a pornographic magazine and then required her

to masturbate his penis.

It is believe[d] the location of the incident was the family’s home on Baton

Rouge in Davidson County.

COUNTS 6-7: The nature of the alleged acts forming the [basis] of these

counts of Aggravated Sexual Battery. Refers to [two] separate acts of multiple

incidences of sexual contact between the defendant and the victim over the

time frame of January 1999 and 2004. These counts refer to the defendant

touching the victim’s breasts, buttocks, and genitals with his hand, touching

her genitals on the outside with his penis, and having her touch his penis with

her hand.

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The location of the incidents would have been the family’s home on Baton

Rouge, Andrew Jackson, or Netherlands in Davidson County.

Additionally, the Defendant filed a proposed order of expungement for his conviction of

attempted bribery of a public official prior to trial, while the State’s Rule 609 notice was

pending. Without knowing about the Defendant’s pending charges in the present matter, an

Assistant District Attorney and the judge in the attempted bribery case signed the order.

Accordingly, the State filed a notice to use the expunged conviction as a prior bad act for

impeachment purposes pursuant to Tennessee Rule of Evidence 608.

II. State’s Evidence at Trial

At trial, the victim, L.H., testified that she was born in 1992, and that she was less

than 13 years old when the Defendant had sexual contact with her. During the time period

listed in the indictment, L.H. lived with her mother, her two brothers, and the Defendant.

The Defendant began living with L.H. and her family in 1997, and in 2001, the Defendant

married L.H.’s mother. L.H.’s mother testified that she first met the Defendant while he was

coaching her son’s football team. L.H.’s mother testified that all of her children loved the

Defendant like a father and that there were no conflicts between the Defendant and L.H.

L.H. testified that during the time period listed in the indictment, her family lived in four

different residences: a duplex located on Belgium Court, a residence located on Baton

Rouge,2 another residence located on Andrew Jackson, and a home on Netherlands Drive.3

L.H. testified that the first sexual encounter with the Defendant she could remember

occurred at the Belgium Court duplex when she was six or seven years old. L.H. testified

that the Defendant came into the room and “put his hand down [her] pants and rubbed on

[her] vagina” until she woke up. L.H. and her mother testified that L.H. shared a bedroom

with her brothers at that duplex and that L.H. slept on the top bunk, while her brothers slept

on the bottom bunk. L.H. testified that she could remember two or three other instances

where the Defendant engaged in sexual contact with her at that duplex. L.H. told the jury

that one morning she was eating cereal when the Defendant came into the kitchen wearing

only a towel. L.H.’s brothers were upstairs getting ready for school, and L.H.’s mother had

already left for work. The Defendant grabbed L.H.’s hair, pulled her hair back, and then

“stuck his penis in [her] mouth.” The Defendant quickly removed his penis “put his towel

2

L.H.’s uncle lived with the family at the Baton Rouge residence in a downstairs “den.”

3

L.H.’s mother provided corresponding dates for when the family lived in each residence: Belgium Court

from May 1998 to May 1999, Baton Rouge from May 1999 to May 2000, Andrew Jackson from May 2000

to February 2002, and Netherlands Drive from February 2002 to the time of trial.

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back on and went upstairs like nothing ever happened.” Similarly, L.H.’s mother testified

that the Defendant would often pull her hair during sex.

L.H. testified that while her family was moving to the residence at Baton Rouge, the

Defendant went back to the duplex “to get more stuff” and insisted that she go with him.

Once at the duplex, the Defendant forced L.H. to perform fellatio on him. When she

finished, he picked a “sucker” up from the floor and “tried to give” it to her “as an award.”

L.H. also testified that while living at the Baton Rouge residence, the Defendant took her

downstairs to her uncle’s room, showed her a pornographic magazine, and forced her to

masturbate him while they looked at the magazine. L.H.’s mother testified that her brother

kept a basket full of pornographic magazines when he lived with them at the Baton Rouge

residence and that the children were not allowed in his room. On another occasion, at the

Baton Rouge home, L.H. was home sick from school when the Defendant forced her to

perform fellatio on him.

L.H. testified that after the family moved to the Andrew Jackson home, the Defendant

began to show her pornographic videos. On one occasion, the Defendant sat in a pink chair

in L.H.’s room and forced her to sit in his lap and masturbate him while they watched a

pornographic video. L.H.’s mother testified that at the Andrew Jackson residence, L.H. had

a table with two pink chairs and a combination television and VCR. L.H.’s mother also

testified that she knew the Defendant kept pornographic videotapes with the family’s home

movies. On another occasion at the Andrew Jackson home, L.H. was asleep in her room with

her little brother sleeping on a trundle bed next to her. The Defendant entered the room and

removed L.H.’s clothes. The Defendant then rubbed his penis on the outside of L.H.’s

vagina until he ejaculated on her bed and left the room. L.H. also testified that one day at the

Andrew Jackson house, her brothers had a friend over when the Defendant made them lunch.

After making lunch, the Defendant took her into a bathroom, where he made her masturbate

him until he ejaculated. The Defendant then sent L.H. to the kitchen to have lunch with the

other children.

L.H. testified that once the family moved to the Netherlands Drive house, the

Defendant began to show her pornography on the computer. L.H.’s mother testified that she

knew the Defendant kept pornography on the computer. L.H. told the jury that she “usually”

had to masturbate the Defendant until he ejaculated when they viewed pornography on the

computer. L.H. testified that this happened “a lot” and that sometimes the Defendant would

rub the outside of her vagina with his hand while they viewed the pornography. L.H.

testified about several other incidents that occurred while her family was living at the

Netherlands Drive house. L.H. testified that on one occasion, the Defendant rubbed his penis

on the outside of her vagina and sniffed a substance in a bottle labeled “Rush.” L.H. also

testified that the Defendant had a secret compartment in his dresser where he kept a pair of

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handcuffs and that on one occasion, he handcuffed her to her bed and rubbed his penis on the

outside of her vagina until he ejaculated. L.H.’s mother testified that there was a hidden

compartment in the dresser and that she found a yellow sock among the Defendant’s

clothing. L.H. also recalled that on one occasion the Defendant asked her, “Who’s your

daddy” while he rubbed his penis on her. L.H.’s mother testified that the Defendant would

ask her “Who’s your daddy” while they had sex and that there was no reason for L.H. to have

known that phrase.

L.H. told the jury that while she was living at Netherlands Drive her mother went on

an overnight business trip. The Defendant took L.H. into her mother’s bedroom where he

forced her to perform fellatio on him and then he rubbed his penis on the outside of her

vagina until he ejaculated. L.H. testified that this incident “took a lot longer than most of the

times.” On another occasion, when L.H. was home after school, the Defendant performed

cunnilingus on her. L.H. testified that while the Defendant performed cunnilingus on her,

her mother called the Defendant on his cell phone. The Defendant answered the phone and

was out of breath. The Defendant told her mother that he was “not trying to get off of the

phone.” L.H.’s mother testified that during her relationship with the Defendant, she only

went on one out of town business trip. L.H.’s mother recalled that while she was on that trip,

she called the Defendant, the Defendant answered the phone and seemed like he was out of

breath. The Defendant tried to hurry her off the phone. L.H.’s mother testified that this

occurred in July 2004.

L.H. testified that the last incident occurred around Christmas 2004. L.H., her mother,

and her step-sister had gone to Wal-Mart when L.H. began to feel ill. Her mother brought

her back home, where she was left alone with the Defendant. L.H. testified that the

Defendant entered her room, took her clothes off, and rubbed his penis on the outside of her

vagina. L.H. screamed for help, and the Defendant said, “Nobody is going to help you . . .

[n]obody can hear you[,] [j]ust shut up.” L.H. cried while the Defendant continued to rub

his penis on her. L.H.’s mother testified that when she returned home from Wal-Mart, L.H.

had been crying and that when she asked L.H. what was wrong, L.H. became so upset she

began throwing up.

In January 2005, L.H. was playing on a trampoline in her front yard with two friends.

Her friends were complaining “about how their [lives] [were] terrible” when L.H. became

upset and started crying. L.H. then told them about what the Defendant had done to her over

the past several years. L.H. made her friends promise not to tell anyone about the

Defendant’s sexual abuse. L.H.’s friend and neighbor, N.W.,4 returned to her home and told

4

All minors involved in this case will be referred to by their initials in order to protect their privacy.

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her mother. N.W.’s mother then called the police. L.H. testified that she never wanted to

call the police or tell her mother because she was scared of the Defendant.

One of the first police officers to speak with L.H. was Officer Craig Christie of the

Metropolitan Police Department (MPD). L.H. at first denied that the Defendant had done

anything to her because she was scared, but she eventually admitted to Officer Christie that

the Defendant had sexually abused her. Officer Christie testified that he was not trained to

interview the victim; therefore, he only asked general questions to determine if a detective

should be called. L.H.’s mother was not at the home when the police first arrived. After she

arrived and was told why the police were there, L.H.’s mother began to cry and “got really

mad, very angry.” L.H. tried “to calm her mother down,” telling her that it was okay and that

everything would be fine. Officer Christie recalled that they were not at the house long

before L.H., her mother, and her brothers were taken to the police station.

Detective Ken Potter of the MPD testified that he interviewed L.H. and her mother

at the police station. Detective Potter spoke with L.H.’s mother alone and testified that she

was “appropriately upset” and told him that she believed L.H. because she “had an attitude

but she was honest.” Detective Potter asked L.H.’s mother if the Defendant did or said

anything unusual when they had sexual intercourse. L.H.’s mother told Detective Potter that

the Defendant would rub his penis on her genitals and say, “Who’s your daddy.” Detective

Potter then interviewed L.H. and asked her what the Defendant would say to her during

sexual encounters. L.H. told Detective Potter that the Defendant would say, “Who’s your

daddy” and threaten to hurt her or take her away if she ever told anyone about what he had

done.

Detective Potter testified that the purpose of his interview with the victim was to

confirm the allegations and determine whether a forensic interview conducted by an expert

in child sexual abuse was needed. Detective Potter told the jury that his interview with the

victim was not intended to be thorough and that it was common for more details to come out

in the forensic interview or at trial. During the interview, L.H. told Detective Potter that the

Defendant had licked and felt her breasts and vagina and that he had felt her buttock. L.H.

also told Detective Potter that the Defendant made her masturbate his penis, perform fellatio

on him, and the Defendant would rub his penis on her vagina. When asked by Detective

Potter how many times this had happened to her, L.H. responded that it had happened “5,000

times or more.” L.H. testified that she meant it had happened so many times she could not

remember an exact number, and Detective Potter testified that is what he understood her to

mean. L.H. also told Detective Potter that she did not know how to describe the Defendant’s

penis but that the Defendant did ejaculate.

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After his interview with L.H., Detective Potter spoke with L.H.’s mother and she

agreed to conduct a “controlled phone call or a pretext phone call” with the Defendant.

L.H.’s mother called the Defendant, while Detective Potter recorded the conversation.

During the controlled call, L.H.’s mother confronted the Defendant with L.H.’s allegation.

The Defendant “adamantly denied that the allegations were true.” The Defendant stated that

he was only alone with L.H. a few times and that he never had the opportunity to commit the

alleged acts. However, L.H.’s mother testified that she worked full-time but that the

Defendant did not always work and had opportunities to be alone with L.H. During the

controlled call, L.H.’s mother also confronted the Defendant about showing pornography to

L.H. The Defendant suggested that L.H. may have walked in while he was viewing

pornography but that he did not show it to her. Toward the end of the conversation, the

Defendant asked L.H.’s mother if he could go home or if he would be arrested when he got

there.

Detective Potter admitted that no physical evidence was ever collected in this case.

Detective Potter also admitted that no witness involved in the case had ever suspected the

Defendant of raping L.H. prior to her allegations. On cross-examination, Detective Potter

also acknowledged that during his interview with L.H., she did not tell him about several of

the specific instances she testified about at trial. However, Detective Potter reiterated that

the purpose of his interview was to simply verify the allegations, not to get specific details

of each offense. Detective Potter also testified that since 2005 no one had ever came forward

alleging that L.H. had lied about the allegations.

Frankie Cowan testified that she was the former clinical direct of the Nashville Child

Advocacy Center, where she served as a child therapist and supervised other therapists and

forensic interviewers. In January 2005, a forensic interview of L.H. was conducted by

Jennifer Hastings. Ms. Cowan supervised the interview. Ms. Cowan testified that a forensic

interviewer is not trained to obtain every detail of the abuse but that they only determine if

harm was done to the child. During the interview, the forensic interviewer asks broad

questions followed by more detailed questions. The forensic interviewer does not ask the

victim “to tell me everything that has ever happened to you of a sexual nature,” nor does the

interviewer tell the child that it is important to tell everything that happened. Ms. Cowan

testified that it is not unusual for a child to give more information or detail after the forensic

interview.

During Ms. Cowan’s testimony, the jury was shown a videotape of L.H.’s forensic

interview. The interviewer asked L.H. what the Defendant did, and after a long pause, L.H.

said that the Defendant would rub her vagina, buttock, and breasts and that the Defendant

would lick her vagina. The interviewer then asked L.H. to tell her about the last time it

happened. L.H. told the interviewer about the incident after her trip to Wal-Mart and said

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that the Defendant “whooped” her when she started screaming and then rubbed her vagina

with his penis. The interviewer asked L.H. to tell her about the first time and L.H. described

the incident when she was eating breakfast and the Defendant stuck his penis in her mouth.

L.H. then told the interviewer that when she lived “in the white house,” the Defendant made

her watch a pornographic movie while her brother played a video game in the other room.

L.H. told the interviewer that the Defendant showed her the movie in her room, on her

television, while they sat in a pink chair and he touched her vagina under her clothes.

The interviewer asked L.H. if the Defendant ever made her touch any part of his body.

L.H. responded that “sometimes” the Defendant told her to touch his penis and “sometimes”

he told her to put his penis in her mouth. L.H. also told the interviewer that the Defendant

showed her another pornographic film while they lived “at the white house” but that she

could not remember if he touched her. The interviewer asked L.H. if she could remember

any other times the Defendant touched her. L.H. told her that her mother had been out of

town for a work trip and that while they were in his bedroom, the Defendant put his penis in

her mouth, rubbed her breast and buttock with his hands, and rubbed his penis on her vagina

until “white stuff came out.” L.H. also said that sometimes the Defendant would say,

“Who’s your daddy” but that the Defendant never put his penis insider her vagina.

L.H. admitted during her testimony that she did not tell Officer Christie, Detective

Potter, or the forensic interviewer about several of the incidents she had testified about at

trial. These incidents included, the first incident she remembered, the incident that occurred

during the move from the duplex to Baton Rouge, that the Defendant had shown her

pornographic magazines, that the Defendant had shown her pornography on the computer,

the incident that occurred with her little brother in the room, and the incident with the

handcuffs. L.H. also admitted that she had told the forensic interviewer that the breakfast

incident was her first sexual contact with the Defendant. However, L.H. testified that even

though she did not tell the police or the forensic interviewer everything, she had told them

everything she could think of. L.H. also testified that she did not offer information if she was

not specifically asked about it.

On cross-examination, L.H. admitted that a few weeks before she told her friends

about the Defendant’s actions, she told her mother she wanted to live with her biological

father and argued with her mother about it. L.H. testified on redirect-examination that she

wanted to live with her father to get away from the Defendant. L.H.’s mother testified that

L.H. asked to live with her biological father and said that she wanted her biological father

and mother to get back together. Defense counsel questioned L.H. about how the Defendant

would discipline her. L.H. responded by saying that the only discipline the Defendant would

inflict on her was “sexual abuse.” Despite defense counsel’s questioning, L.H. denied that

she had misbehaved at the Wal-Mart and that her mother had taken her back home for the

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Defendant to discipline her. L.H.’s mother also testified that L.H. had not been “acting up”

at the Wal-mart and that she took her home because L.H. felt ill. L.H. admitted on cross-

examination that she had sent the Defendant a Valentine’s Day card after she had accused

him of sexual abuse. L.H. also admitted that after the allegations were made, she hugged the

Defendant and gave him a father’s day gift. L.H. testified that even after all the Defendant

had done to her, she still loved him like a father.

L.H.’s mother testified that L.H. continued to suffer after making these allegations

against the Defendant. Specifically, L.H. was unable to see her step-brothers and this

“devastated” her. Additionally, without the Defendant’s financial support, L.H.’s mother had

to take a second job and was at home less. L.H. was in counseling, including counseling with

Ms. Cowan, and had failed a grade in school. L.H.’s mother also testified that L.H. never

recanted her story. However, L.H.’s mother admitted on cross-examination that neither she

nor her other children ever saw the Defendant act inappropriately around L.H. L.H.’s mother

testified that while the Defendant was in prison, she received a letter from him in which he

told her that things could go back to normal if she and L.H. did not testify. The Defendant

offered to help L.H.’s mother in custody proceedings with L.H.’s biological father if she

helped him in his criminal case.

L.H.’s mother admitted on cross-examination that after L.H. made the allegations

against the Defendant, she remained married to the Defendant for over a year and a half.

Additionally, the Defendant financially supported the family for over two years after the

allegations were made. L.H. and her family continued to have contact with the Defendant

and traveled with him to weekend basketball tournaments and on family vacations. L.H.’s

mother admitted that she only divorced the Defendant after the Department of Children’s

Services (DCS) took her children away for continuing to have contact with the Defendant.

L.H.’s mother also admitted that a week after the allegations were made, she and the

Defendant took a vacation together, but she testified she did it “to get [the Defendant] to

admit to [her] what he had done.” L.H.’s mother testified that she did not continue to see the

Defendant because she did not believe her daughter but that she continued to contact him

because she loved the Defendant. She said that she regrets her actions.

III. State’s Election

At the close of the State’s proof, it made the following elections:

Count One of the Indictment alleges an act of aggravated sexual battery . . .

and refers to the following conduct: the defendant rubbed his penis on [L.H.’s]

vagina in a bedroom of the residence at Netherlands Drive. This happened

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after [L.H.] came home from a trip to Walmart [sic] with her mother. [L.H.]

was crying and screaming and telling the defendant to stop.

Count Two of the Indictment alleges an act of rape of a child . . . and refers to

the following conduct: the defendant committed an act of sexual penetration

against [L.H.], in that he licked her vagina with his tongue in a bedroom of the

residence at Netherlands Drive.

Count Three of the Indictment alleges an act of rape of a child . . . and refers

to the following conduct: the defendant committed an act of sexual penetration

against [L.H.] in that the defendant pulled [L.H.’s] head back by the hair and

placed his penis in the mouth of [L.H.] in the kitchen of the duplex residence

on Belgium Court. [L.H.] indicated [that] this was one of the first incidents of

sexual conduct that she can remember. She described the defendant as

wearing a towel after he had gotten out of the shower.

Count Four of the Indictment alleges an act of rape of a child . . . and refers to

the following conduct: the defendant committed an act of sexual penetration

against [L.H.] in that [he] placed his penis in her mouth in a bedroom of the

residence at Netherlands Drive. [L.H.] indicated that her mother was out of

town and indicated that the defendant also grinded his penis on her vagina

after he had put his penis in her mouth. [L.H.] described that this was one of

the longest incidents of sexual abuse that took place.

Count Five of the Indictment alleges an act of aggravated sexual battery . . .

and refers to the following conduct: the defendant had [L.H.] masturbate his

penis after he showed her pornographic magazines in her uncle’s room in the

residence on Baton Rouge.

Count Six of the Indictment alleges an act of aggravated sexual battery . . . and

refers to the following conduct: the defendant had [L.H.] masturbate his penis

after he showed her a pornographic movie on the VCR in her bedroom in the

residence on Andrew Jackson. [L.H.] described that she was sitting on pink

chairs in her bedroom when this occurred.

Count Seven of the Indictment alleges an act of aggravated sexual battery . .

. and refers to the following conduct: the defendant had [L.H.] masturbate his

penis after he showed her pornographic material on the computer in the living

room of the residence on Netherlands Drive.

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IV. Defendant’s Evidence at Trial

Kenneth Koontz testified that his step-daughter was friends with L.H. in 2005. Mr.

Koontz told the jury that a week or two after L.H. had been interviewed by the police, he

picked L.H. up from the Netherlands Drive residence so she could spend the night with his

step-daughter. On the drive back to his house, Mr. Koontz asked L.H. what she wanted to

do when she grew up. Mr. Koontz testified that L.H. answered that she wanted to be a writer

because she had “the ability to make things up and get people in trouble.” L.H., during her

testimony, denied ever saying this to Mr. Koontz. On cross-examination, Mr. Koontz

admitted that he never contacted the police about L.H.’s alleged statement. Mr. Koontz

admitted that he was a former police officer and understood the exculpatory nature of L.H.’s

alleged statement. Mr. Koontz testified that he did not come forward until he was contacted

by an attorney involved in the case but that he could not remember if the attorney was a

member of the prosecution or the defense team. On cross-examination, Mr. Koontz also

testified that he could not recall telling his ex-wife that the Defendant told him “the worst

[the Defendant] ever did was show [L.H.] pornography.”

The Defendant denied that he ever had any type of “inappropriate relationship” with

L.H. and that he ever had any sexual contact with L.H. The Defendant specifically denied

all of L.H.’s allegations. The Defendant testified that he had “a really good relationship”

with L.H. and her brothers, that he loved them, and that he was fully involved in their lives.

However, the Defendant testified that when he first moved in with L.H.’s mother, there were

“discipline problems” with the children “not minding [their mother].” According to the

Defendant, L.H. “had a little bit of a problem with backtalking” and “didn’t receive

[discipline] very well.” The Defendant testified that L.H. would tell him “that [he] wasn’t

her father and that [he] couldn’t tell her what to do.”

The Defendant testified that everyone in the house slept with their door open and that

he would not wear only a towel around the house. The Defendant also testified that he may

have asked L.H.’s mother “Who’s your daddy” while they were having sex but that “[i]t was

kind of a joke thing.” The Defendant also claimed that it “was a common phrase that

everybody said” and that “[w]e all said it around the house as a joke all of the time.” The

Defendant denied ever showing L.H. pornographic material as well as telling Mr. Koontz that

he had shown L.H. pornographic material. The Defendant claimed that L.H. and her

brothers found the pornographic magazines in their uncle’s bedroom. The Defendant

admitted to viewing pornography on his computer but claimed that it was only after he

moved out of the Netherlands Drive house. The Defendant also claimed that L.H.’s mother

only confronted him about pornographic movies that had been rented from the cable

company and, according to the Defendant, it had been L.H.’s older brother who was renting

those movies. The Defendant denied ever hiding a substance called “Rush” or “Haze” in a

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yellow sock in his bedroom. The Defendant also denied that he laughed during the

controlled phone call with L.H.’s mother. Instead, the Defendant insisted that he was crying

and it only sounded like he was laughing.

The Defendant admitted on direct examination that he had been employed as a parole

officer and that he lost his job after taking “a check from a family inappropriately” and

cashing the check. The Defendant also admitted on direct examination that when he was

initially asked about the check he denied that he had taken the check. On cross-examination,

the Defendant again admitted that he was fired from his job as a parole officer for taking a

check from the family of a parolee. The Defendant also admitted that when he was shown

the check with his endorsement that he denied taking and signing the check.

The Defendant testified that after L.H. made the allegations against him, he moved

out of the house at Netherlands Drive. However, the Defendant testified that L.H.’s mother

wanted to see him and talk to him. The Defendant and L.H.’s mother went on a vacation

together a few weeks after L.H. had spoken to the police. The Defendant continued to coach

L.H.’s brothers in basketball and continued to referee youth sporting events. The Defendant

testified that after L.H. had gone to the police, he felt guarded around L.H. and no longer felt

comfortable around L.H. The Defendant testified that he and L.H.’s mother spoke to each

other every day for over a year after the allegations were made. The Defendant also

continued to support L.H.’s family financially and had a joint bank account with L.H.’s

mother. The Defendant testified that he helped L.H.’s mother retain an attorney for her

children’s custody proceedings. According to the Defendant, it was only after DCS took

L.H. and her brothers away from their mother that she cut off contact with him.

On cross-examination, the Defendant admitted that he wrote L.H.’s mother a letter

while he was in prison. The Defendant denied that he intended to get L.H. and her mother

not to testify or to lie about what happened. However, the letter proposed that the Defendant

would testify on behalf of L.H.’s mother if she would help him at his criminal trial. The

letter also requested L.H.’s mother to tell the police that she was mistaken about the

information she had provided and that the whole situation was a mistake. In the letter, the

Defendant begged L.H.’s mother “not to let them put [him] in prison for the rest of [his]

life.” The Defendant, in the letter, also denied ever asking L.H.’s mother “Who’s your

daddy.”

The Defendant testified that L.H. never saw him and her mother engaged in sexual

activity. The Defendant told the jury he did not know where L.H. had learned “all of that

specific sexual knowledge.” Instead, the Defendant testified that it was just a coincidence

L.H. knew about hair pulling and his habit of saying, “Who’s your daddy” during sexual

intercourse. The Defendant also claimed that L.H. was motivated to lie about him because

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she wanted “to be with her father and to live with her father which she told her mother that

all of the time.”

Jacob Smith, the Defendant’s son, testified that he lived with the Defendant and

L.H.’s family for half of a school year and that he visited every other weekend. Mr. Smith

testified that he never saw anything inappropriate between the Defendant and L.H.

According to Mr. Smith, the Defendant would discipline L.H., who did not like the

Defendant because of his discipline. Mr. Smith testified that L.H. wanted to live with her

biological father and that she “did not like [the Defendant] at all.”

V. Verdict and Sentencing

Based on the foregoing evidence, the Defendant was convicted of four counts of

aggravated sexual battery, a Class B felony, and three counts of rape of a child, a Class A

felony. A sentencing hearing was held on February 20, 2009, during which L.H.’s mother

testified about the effect the Defendant’s crimes have had on L.H. L.H. failed a grade in

school and does not like to be alone because “it gives her time to think about what had

happened to her.” L.H.’s mother testified that L.H. was afraid that the Defendant would

come and kill her and that L.H. slept with a knife under her bed. L.H. also missed her step-

brothers and had been in counseling. Ms. Cowan testified that she had counseled L.H. for

a period of time and that L.H. had trouble in school, suffered from depression, had disturbing

nightmares, and suffered from “an overall general feeling of fearfulness.” Ms. Cowan also

testified that L.H. suffered from an “overwhelming responsibility and guilt for having been

involved in sexual activity with” the Defendant and the subsequent break-up of their family.

Several members of the Defendant’s family testified at the sentencing hearing. They

all expressed their belief that the Defendant did not commit the crimes. They all also

testified that the Defendant was a good man, that he was a man of good moral character, and

that he had given back to his community by working with children for a long time. The

Defendant’s stepmother testified that the Defendant had served in the military for several

years and was honorably discharged after he injured himself “jumping out of planes.” The

Defendant’s current wife testified that she loved the Defendant and trusted him completely

to live with her 14 year-old daughter.

The trial court issued its sentencing order on March 26, 2009. The Defendant was

classified as a Range I offender. While the State presented several enhancement factors at

the sentencing hearing, the Defendant’s crimes were committed before the 2005 amendments

to the sentencing statute. The Defendant did not file a waiver to be sentenced under the

amended statute, therefore, the Defendant was sentenced under the pre-2005 statute. The

trial court ruled that because the State’s proposed enhancing factors had not been found by

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a jury, it could not consider them. Accordingly, the trial court sentenced the Defendant to

the minimum sentence on each count: eight years for each count of aggravated sexual battery

and fifteen years for each count of rape of a child. The trial court ordered count one and

count four to be served consecutively. The trial court ordered that the remaining charges be

served concurrently, for an effective 23-year sentence to be served at 100 percent. See Tenn.

Code Ann. § 40-35-115(b)(5).

ANALYSIS

I. Evidence of Uncharged Sexual Contact Between the Defendant and L.H.

The Defendant contends that the trial court erred by allowing L.H. to testify about

instances of sexual contact between herself and the Defendant that were not charged in the

indictment or listed in the bill of particulars. The Defendant further contends that most of

L.H.’s testimony was about uncharged offenses and that the jury “heard more testimony

about uncharged acts than it heard about the charges for which the [D]efendant was actually

on trial.” The Defendant argues that the evidence was inadmissible under Tennessee Rule

of Evidence 404(b) and that it did not fall under the narrow exception to Rule 404(b)

enunciated by the Tennessee Supreme Court in State v. Rickman, 876 S.W.2d 824 (Tenn.

1994). The State responds that the trial court properly admitted the evidence under

Rickman’s narrow exception to Rule 404(b). The State argues that the indictment in this case

was not time specific, that the evidence related to sex crimes that occurred during the time

as charged in the indictment, and that it made a proper election at the close of its case-in-

chief.

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of

a person in order to show that person’s actions were in conformity with the character trait.

Tenn. R. Evid. 404(b). This rule “is based on the recognition that such evidence easily

results in a jury improperly convicting a defendant for his or her bad character or apparent

propensity or disposition to commit a crime regardless of the strength of the evidence

concerning the offense on trial.” Rickman, 876 S.W.2d at 828 (citing Anderson v. State, 56

S.W.2d 731 (Tenn. 1933)). The danger of a jury improperly convicting a defendant based

on their character rather than the evidence presented at trial “particularly exists when the

conduct or acts are similar to the crimes on trial.” Id. (citing State v. Parton, 694 S.W.2d

299, 303 (Tenn. 1985)). Accordingly, Rule 404(b) is generally one of exclusion, but

exceptions to the rule may occur when the evidence of the otherwise inadmissible conduct

is offered to prove the motive of the defendant, identity, intent, the absence of mistake or

accident, opportunity, or a common scheme or plan. State v. Tolliver, 117 S.W.3d 216, 230

(Tenn. 2003); State v. McCary, 119 S.W.3d 226, 243 (Tenn. Crim. App. 2003).

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The issue of whether to admit evidence of other sexual offenses committed by a

defendant presents unique difficulties under the Rule 404(b) analysis. The Tennessee

Supreme Court explicitly declined to recognize a general “sex crimes” exception to Rule

404(b) that would have allowed evidence of other sexual offenses to be admitted at trial.

Rickman, 876 S.W.2d at 828-29. In declining to adopt this exception, our supreme court

noted that “evidence admitted under a general sex crimes exception is said to be for purposes

of corroboration, or to show the intimate relations between the parties, or to show that the

defendant had a lustful disposition.” Id. at 828. The supreme court held that these

exceptions were not embodied in Rule 404(b) and rejected them in its Rickman opinion. Id.

at 829-30. Instead, “evidence of prior sexual misconduct is governed by the same evidentiary

rules as evidence of other non-sexual misconduct.” Id. at 829.

The supreme court created a narrow “special rule admitting evidence of other sexual

crimes when an indictment charges a number of sexual offenses, but alleges no specific date

upon which they occurred.” Rickman, 876 S.W.2d at 828. This narrow exception applies

“in the prosecution of criminal acts committed against young children who are frequently

unable to identify a specific date on which a particular offense was committed.” Id.

Therefore, “where the indictment charges that sex crimes occurred over a span of time,

evidence of unlawful sexual contact between the defendant and the victim allegedly

occurring during the time charged in the indictment is admissible.” Id. Additionally, “the

State must elect at the close of its proof-in-chief as to the particular incident for which a

conviction is being sought.” Id. at 829. However, when the indictment is date specific, “the

prejudice resulting from such [evidence] outweighs its probative value.” Id. at 830 (citing

State v. Burchfield, 664 S.W.2d 284, 287 (Tenn. 1984)).

The evidence at issue falls within the Rickman exception to Rule 404(b). The

indictment was not time specific and alleged that the charged offenses occurred between

January 1, 1999 and December 31, 2004. The uncharged incidents of sexual abuse that the

victim testified about occurred during that time period. The victim testified that she had

trouble remembering the details and when the individual instances of sexual contact

occurred. The victim also told the police and the forensic interviewer that she could not

remember everything. While the bill of particulars was able to “outline a few details” about

the charged instances of sexual contact, it was also not time specific. See State v. Scott W.

Grammer, No. E2005-02604-CCA-R3-CD, 2007 WL 595908, at *6 (Tenn. Crim. App. Feb.

26, 2007), perm. app. denied (Tenn. June 18, 2007). Furthermore, when determining

whether evidence is admissible under the Rickman exception, “the relevant inquiry is not the

information in the bill of particulars but the information set forth in the indictment.” Id.

(citing Rickman, 876 S.W.2d at 829). The differences between the bill of particulars and the

State’s election of offenses “illustrate[d] the uncertainty on the part of the prosecution and

demonstrate[d] that the State needed the ‘latitude in the prosecution of criminal acts

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committed against young children’ discussed in Rickman.” Id. at *7 (quoting Rickman, 876

S.W.2d at 829). Accordingly, we conclude that the trial court did not err in ruling that the

Rickman exception applied in this case and in admitting L.H.’s testimony regarding other

instances of sexual contact with the Defendant.

II. Use of L.H.’s Forensic Interview as a Prior Consistent Statement

The Defendant contends that the trial court erred by allowing a videotape of L.H.’s

forensic interview to be played for the jury as a prior consistent statement. The Defendant

argues that only a small portion of the videotaped interview was actually consistent with

L.H.’s trial testimony. Therefore, the Defendant contends, the videotape could not be played

as a prior consistent statement and that the videotape improperly bolstered L.H.’s credibility.

The State responds that defense counsel’s cross-examination of L.H. brought her credibility

into question and insinuated that her trial testimony was fabricated. Accordingly, the State

argues, the videotaped interview was a proper prior consistent statement. The State also

responds that any inconsistencies in the interview were used by the Defendant to his

advantaged at trial and that the Defendant cannot show he was prejudiced by the use of the

videotape.

This court has held that “[o]rdinarily, it is impermissible to corroborate a witness’

testimony by evidence of the witness making prior consistent statements, absent an

impeaching attack on that testimony.” State v. Meeks, 867 S.W.2d 361, 374 (Tenn. Crim.

App. 1993) (citing State v. Braggs, 604 S.W.2d 883, 885 (Tenn. Crim. App. 1980)).

However, there are two circumstances in which prior consistent statements may be

admissible. The first is where a prior consistent statement is allowed “to rebut the inference

that the witness’s testimony was a recent fabrication.” State v. Bush, 942 S.W.2d 489, 516

(Tenn. 1997). The second is when a witness’s prior statement is used out of context to cross-

examine the witness. State v. Boyd, 797 S.W.2d 589, 593-94 (Tenn. 1990). Furthermore,

“[t]he impeaching attack on the witness’s credibility need not be successful for admissibility

of a prior consistent statement.” State v. Albert R. Neese, No. M2005-00752-CCA-R3-CD,

2006 WL 3831387, at *6 (Tenn. Crim. App. Dec. 15, 2006), perm. app. denied (Tenn. April

23, 2007). However, a prior consistent statement will not be admissible unless “the witness’

testimony . . . [has] been assailed or attacked to the extent that the witness’ testimony needs

rehabilitating.” State v. Hodge, 989 S.W.2d 717, 725 (Tenn. Crim. App. 1998) (citing State

v. Benton, 759 S.W.2d 427, 434 (Tenn. Crim. App. 1998)).

On cross-examination, defense counsel repeatedly questioned L.H. about whether she

had told the police or the forensic interviewer about several of the incidents of sexual

contact. Defense counsel also questioned L.H. about why she failed to tell the police and the

forensic interviewer about these instances. It is clear from defense counsel’s questioning of

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L.H. that defense counsel was insinuating that L.H.’s testimony was a recent fabrication. In

the videotaped interview, L.H., who was 12 years old, described the incident that occurred

after her mother brought her home from Wal-Mart in December 2004, the incident during

breakfast where the Defendant put his penis in her mouth, and the incident where the

Defendant made L.H. watch a pornographic movie in her room while sitting in a pink chair.

L.H. also described how the Defendant would ask her “Who’s your daddy” and the incident

that occurred while L.H.’s mother was out of town on business. Moreover, before the

videotape was played for the jury, the trial court instructed the jury that it was not substantive

evidence and was to be used only in assessing L.H.’s credibility. This was a proper

instruction “to ensure against the use of the evidence for other than corroborative purposes.”

Neese, 2006 WL 3831387 at *6 (citing State v. Livingston, 907 S.W.2d 392, 398 (Tenn.

1995)). Additionally, to the extent that the interview was inconsistent with L.H.’s trial

testimony, that evidence would only bolster the Defendant’s claims and impinge on L.H.’s

credibility. Accordingly, we conclude that the trial court did not err in allowing a videotape

of L.H.’s forensic interview to be played for the jury.

III. Evidence that the Defendant Committed Attempted Bribery

The Defendant contends that the trial court erred by allowing the State to cross-

examine him about illegally taking money from a parolee’s family while the Defendant was

employed as a parole officer. The Defendant argues that the State failed to provide a

reasonable factual basis for this inquiry and that the probative value of this evidence was

substantially outweighed by its prejudicial effect. The State responds that a reasonable

factual basis for this inquiry was provided to the trial court and that the evidence was highly

probative of the Defendant’s credibility. Additionally, the State notes that the trial court

properly instructed the jury that this evidence could not be considered as evidence of the

Defendant’s guilt for the charged crimes.

Prior to trial, the State filed notice pursuant to Tennessee Rule of Evidence 609 of its

intent to use evidence of the Defendant’s conviction for attempted bribery of a public servant

as impeachment evidence at trial. After this notice was filed, the Defendant sought and had

his conviction expunged. Accordingly, the State filed a new notice pursuant to Tennessee

Rule of Evidence 608(b) to use evidence of the Defendant’s specific instance of conduct

regarding the attempted bribery as impeachment evidence. During the jury-out hearing on

the issue, the Defendant acknowledged that he had been indicted for bribery of a public

servant and pled guilty to attempted bribery of a public servant. The State also placed on the

record the origin of the information and stated that it had the cashed check with the

Defendant’s endorsement in its possession. The trial court concluded that the probative value

of the testimony regarding the Defendant’s credibility outweighed its prejudicial effect.

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Additionally, the Defendant admitted that he had been fired for taking a check from a

parolee’s family and that he initially denied the allegations during direct examination.

Rule 608(b) “governs the admissibility of prior expunged convictions to impeach a

witness’s testimony.” State v. John C. Cline, No. E2007-01995-CCA-R3-CD, 2008 WL

4915873, at *5 (Tenn. Crim. App. Nov. 17, 2008) (citing cases). Rule 608(b) provides that

“specific instances of conduct of a witness for the purpose of attacking or supporting the

witness’s character for truthfulness” may be inquired into on cross-examination if “the

alleged conduct has probative value and [] a reasonable factual basis exists for the inquiry.”

If the witness is the defendant, the State must provide “reasonable written notice” of its intent

to use the prior bad act as impeachment evidence, and the trial court must determine “that the

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

substantive issues.” Tenn. R. Ev. 608(b)(3). However, “after questioning a witness about

prior bad acts, the defendant cannot prevent proper cross-examination.” State v. Hutchison,

898 S.W.2d 161, 171 (Tenn. 1994) (citing State v. Johnson, 670 S.W.2d 634, 636 (Tenn.

Crim. App. 1984)). Defense counsel questioned the Defendant on this issue and nothing in

the State’s cross-examination exceeded the scope of direct examination. Accordingly, we

conclude that this issue has no merit.

IV. Variation Between State’s Proof and Indictment in Count Two

The Defendant contends that the evidence was insufficient to convict him with regards

to count two of the indictment because the State’s proof at trial materially varied from the

allegations set forth in the indictment. The Defendant argues that the indictment alleges the

offense was committed in December 2004, but that the evidence at trial showed that this

offense occurred in July 2004. Accordingly, the Defendant contends, he was prevented from

preparing an adequate defense because of this material variation between the State’s proof

and the indictment. The State responds that any variance between the date of the offense as

alleged in the indictment and the proof at trial was neither material nor prejudicial.

Unless the time of the offense is a “material ingredient in the offense” an indictment

does not have to provide a specific time. Tenn. Code Ann. § 40-13-207. Instead, “the

offense may be alleged to have been committed on any day before the finding of the

indictment, or generally before the finding of the indictment.” Id. If the dates provided in

the indictment are not essential to proving the offense or providing a defense, then the State

is “‘not required to strictly show that the offense occurred within those dates.’” State v. Jeff

Carter, No. M2009-02399-CCA-R3-CD, 2010 WL 5343212, at *17 (Tenn. Crim. App. Dec.

16, 2010) (quoting State v. Howse, 634 S.W.2d 652, 657 (Tenn. Crim. App. 1982)). Any

“variance between an indictment . . . and the evidence presented at trial is not fatal unless it

is both material and prejudicial.” State v. Shropshire, 45 S.W.3d 64, 71 (Tenn. Crim. App.

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2000). While the State had to prove the victim’s age at the time of the offenses, time was not

a material element of the offenses. See Tenn. Code Ann. §§ 39-13-504, 522. Accordingly,

“any variance between the time alleged in the indictment and the time proven at trial [was]

not a material variance.” Carter, 2010 WL 5343212 at *17 (citing cases).

Additionally, we believe that the Defendant is mistaken about the testimony given at

trial. The Defendant contends in his brief that L.H. testified that the Defendant performed

cunnilingus on her while her mother was out of town and that her mother called during this

incident. During her testimony, L.H. described an incident where the Defendant sexually

assaulted her when her mother was out of town. Once L.H. was finished describing this

incident, the prosecutor asked her if she recalled any other instances that occurred at the

Netherlands Drive residence. L.H. then described an incident where the Defendant

performed cunnilingus on her one afternoon while her mother was still at work. L.H.

testified that during this incident, her mother called. She said that when the Defendant

answered the phone, he was out of breath and tried to rush her mother off the phone. L.H.’s

mother testified that while she was away on business in July 2004, she called the Defendant,

who answered out of breath and tried to rush her off the phone. It was the province of the

jury to resolve any conflict between the testimony of L.H. and her mother. See State v.

Bland, 958 S.W.2d 651, 659 (Tenn. 1997). Based on the foregoing, we conclude that this

issue is without merit.

V. Variance Between the Bill of Particulars and the Proof at Trial

The Defendant contends that the trial court erred in denying his motion for judgment

of acquittal. The Defendant argues that the State’s proof at trial materially varied from the

details found in the bill of particulars for three of the counts. The Defendant contends that

in count two, the bill of particulars alleged the Defendant penetrated L.H.’s vagina with his

penis, while the State’s election alleged the Defendant performed cunnilingus on L.H. The

Defendant also contends that the State’s proof for counts six and seven materially varied

from the bill of particulars because the bill of particulars did not mention that the Defendant

showed pornographic movies and pornography on the computer to L.H. The State responds

that any variance between the bill of particulars and the proof presented at trial was neither

material, nor prejudicial.

As noted above, “[a] variance between an indictment or a subsequent bill of

particulars and the evidence presented at trial is not fatal unless it is both material and

prejudicial.” Shropshire, 45 S.W.3d at 71. When a substantial correspondence exists

between the proof presented at trial and the bill of particulars, the variance is not material.

Id. As long as the bill of particulars informed the defendant “of the charges levied against

him so that he can adequately prepare for trial” and protected the defendant from “subsequent

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prosecution for the same offense” than any variance between it and the proof at trial will not

be material. State v. Ealey, 959 S.W.2d 605, 609 (Tenn. Crim. App. 1997) (quoting State v.

Mayes, 854 S.W.2d 638, 640 (Tenn. 1993)). Additionally, courts have long been “sensitive

to the fact that young children who are victims of child abuse may not be able to testify that

the abuse occurred on a specific date, or provide extensive details in this regard.” State v.

Brown, 992 S.W.2d 389, 391 (Tenn. 1999).

In the bill of particulars, counts six and seven refer to multiple instances of sexual

contact between L.H. and the Defendant, including the Defendant “having [L.H.] touch his

penis with her hand.” In the State’s election, count six refers to an incident where the

Defendant made L.H. masturbate him while they watched pornography in her room while

count seven refers to a similar incident while the Defendant showed L.H. pornography on the

computer. The core of the State’s allegations in both counts is that the Defendant forced

L.H. to masturbate him. The fact that the proof at trial showed that this occurred while the

Defendant forced L.H. to watch pornography did not, in any way, hinder the Defendant’s

ability to mount a defense against these charges. See State v. Isaiah Burton, Jr., No. M2005-

00690-CCA-R3-CD, 2006 WL 1896364, at *10 (Tenn. Crim. App. July 7, 2006) perm. app.

denied (Tenn. Nov. 6, 2006) (citing cases). Accordingly, we concluded that the trial court

did not err in denying the Defendant’s motion for judgment of acquittal with respect to

counts six and seven.

With respect to count two, the bill of particulars alleged that the Defendant penetrated

L.H.’s vagina with his penis, but the proof at trial established that the Defendant performed

cunnilingus on L.H. Both the bill of particulars and the State’s election alleged an act of rape

of a child, which occurred in the residence on Netherlands Drive. Rape of a child is defined

as “the 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. § 39-13-522. The

Tennessee Code Annotated defines sexual penetration as “sexual intercourse, cunnilingus,

fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person’s

body or of any object into the genital or anal openings of the victim’s, the defendant’s, or any

other person’s body, but emission of semen is not required.” Tenn. Code Ann. § 39-13-

501(7). The bill of particulars and the proof at trial did not vary in the alleged offense, but

the proof varied in the manner of the offense. Accordingly, we conclude that the variance

was neither material nor prejudicial. See Shropshire, 45 S.W.3d at 71 (finding variance

between bill of particulars alleging that defendant forced victim to touch his penis with her

mouth and proof at trial which showed defendant forced victim to touch his penis with her

hand was neither material nor prejudicial).

VI. Motion for New Trial

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The Defendant contends that the trial court erred by denying his motion for new trial

based on newly discovered evidence. In support of his motion, the Defendant offered an

affidavit from one of L.H.’s brothers. In the affidavit, the brother alleged that his mother

prevented him from speaking with defense counsel, that L.H. “always had a problem with

the truth,” and that L.H. resented the Defendant’s attempts to discipline her. The brother also

alleged that the Defendant never wore a towel around the house, there was no pornography

in the house, and that L.H.’s brother would have been awakened if the Defendant ever came

into the room he shared with his sister. The Defendant argues that this information is

material, it directly challenges L.H.’s credibility, and this testimony would have likely

changed the outcome of the trial. The State responds that the Defendant failed to show he

acted with reasonable diligence to discover this evidence. The State further responds that the

Defendant has failed to show how this evidence would change the results of the trial because

much of the information contained in the affidavit was testified to by other defense witnesses

and because L.H.’s credibility was heavily disputed by the defense at trial.

A trial court’s decision refusing to grant a motion for new trial on the basis of newly

discovered evidence will only be overturned by this court upon a showing of an abuse of

discretion. State v. Caldwell, 977 S.W.2d 110, 117 (Tenn. Crim. App. 1997) (citing Hawkins

v. State, 417 S.W.2d 774, 778 (Tenn. 1967)). As stated in State v. Nichols:

To obtain a new trial on the basis of newly discovered evidence, the defendant

must establish (1) reasonable diligence in seeking the newly discovered

evidence; (2) materiality of the evidence; and (3) that the evidence will likely

change the result of the trial.

877 S.W.2d 722, 737 (Tenn. 1994) (citing State v. Goswick, 656 S.W.2d 355, 358-60 (Tenn.

1983)).

As the trial court noted, the Defendant could have called L.H.’s brother as a witness

at trial. There was no evidence that the Defendant attempted to contact him. Additionally,

all of the information contained in the affidavit had been discussed at trial by other defense

witnesses. For example, both the Defendant and Mr. Smith testified that L.H. resented the

Defendant for disciplining her. Several witnesses also testified that they never saw the

Defendant touch L.H. inappropriately. Defense counsel repeatedly attacked L.H.’s credibility

during the trial, and the Defendant failed to present any evidence that the addition of L.H.’s

brother’s testimony would have altered the outcome of the trial. According, we conclude that

the trial court did not abuse its discretion in denying the Defendant’s motion for new trial.

VII. Consecutive Sentences

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The Defendant contends that the trial court erred in imposing partial consecutive

sentences in this case. The Defendant contends that the State failed to prove L.H. has

suffered from “residual, physical or mental damage” as a result of the Defendant’s actions

as required by Tennessee Code Annotated section 40-35-115(b)(5). The Defendant also

contends that section 40-35-115(b)(5) requires proof of “penile vaginal penetration.” The

Defendant further contends that his sentence was “greater than that deserved for the offenses

committed.” The State responds that all of the requirements of section 40-35-115(b)(5) were

proven at trial and at the sentencing hearing. The State further responds that given the

severity of the offenses committed against L.H., consecutive sentencing was warranted.

An appellate court’s review of sentencing is de novo on the record with a presumption

that the trial court’s determinations are correct. Tenn. Code Ann. § 40-35-401(d). As the

Sentencing Commission Comments to this section note, on appeal the burden is on the

Defendant to show that the sentence is improper. This means that if the trial court followed

the statutory sentencing procedure, made findings of fact that are adequately supported in the

record, and gave due consideration to the factors and principles that are relevant to

sentencing under the 1989 Sentencing Act, the court may not disturb the sentence even if a

different result were preferred. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App.

1991); see also State v. Carter, 254 S.W.3d 335 (Tenn. 2008).

The trial court relied on Tennessee Code Annotated section 40-35-115(b)(5) in

imposing consecutive sentences. This section requires that the defendant be convicted of two

or more statutory offenses involving “sexual abuse of a minor” and that the trial court

consider “the aggravating circumstances arising from the relationship between the defendant

and victim or victims, the time span of defendant’s undetected sexual activity, the nature and

scope of the sexual acts and the extent of the residual, physical and mental damage to the

victim or victims[.]” Tenn. Code Ann. § 40-35-115(b)(5). Nowhere in this section is the term

“sexual abuse” limited to “penile vaginal penetration.” Additionally, this section is based

upon the Tennessee Supreme Court’s decision in State v. Taylor which involved multiple sex

acts including, oral, anal, and vaginal intercourse. 739 S.W.2d 227, 230 (Tenn. 1987).

Accordingly, we conclude that the Defendant’s argument that section 40-35-115(b)(5) does

not apply because there was no evidence of “penile vaginal penetration” is without merit.

Regarding section 40-35-115(b)(5)’s requirement that the trial court consider “the

extent of the residual, physical and mental damage to the victim” we conclude that the trial

court did not err in its decision. The State presented evidence that L.H. had fallen behind in

school; had suffered from nightmares and slept with a knife under her bed; and had suffered

from depression and an overall sense of guilt since reporting her abuse. This evidence, along

with the lengthy period of time the abuse went undetected, the Defendant’s close relationship

to L.H., and the extensive nature of the sexual activity justified the imposition of consecutive

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sentences. Accordingly, we conclude that the trial court did not abuse its discretion in

imposing consecutive sentences.

CONCLUSION

Upon consideration of the foregoing and the record as a whole, the judgments of the

trial court are affirmed.

_________________________________

D. KELLY THOMAS, JR., JUDGE

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