State of Tennessee v. Evangeline Combs and Joseph D. Combs

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

April 23, 2002 Session

STATE OF TENNESSEE v. EVANGELINE COMBS and

JOSEPH D. COMBS

Consolidated Direct Appeal from the Criminal Court for Sullivan County

Nos. S41,992 & S41,993 R. Jerry Beck, Judge

No. E2000-02801-CCA-R3-CD

No. E2000-02800-CCA-R3-CD

September 25, 2002

The Defendants, Joseph D. Combs and Evangeline Combs (husband and wife), were charged by

presentment returned by a Sullivan County grand jury with numerous offenses: Joseph Combs was

indicted for one count of especially aggravated kidnapping, two counts of aggravated assault, one

count of aggravated perjury, one count of aggravated rape, and seven counts of rape. Evangeline

Combs was indicted for one count of especially aggravated kidnapping, three counts of aggravated

assault, two counts of assault, and four counts of aggravated child abuse. Following the close of all

proof, the trial court dismissed one count of aggravated assault in the presentment against both

Defendants and three counts (one for aggravated assault and two for simple assault) against

Evangeline, finding the offenses in these four counts were barred by the statute of limitations.

Following deliberation, the jury found Defendant Evangeline Combs guilty of especially aggravated

kidnapping and four counts of aggravated child abuse, and not guilty of one count of aggravated

assault. Defendant Joseph Combs was found guilty of especially aggravated kidnapping, aggravated

assault, aggravated perjury, and aggravated rape, in addition to seven counts of rape. Evangeline

Combs received a sentence of 65 years, and Joseph Combs received an effective sentence of 114

years. The Defendants, represented by different counsel, filed separate notices of appeal. Thereafter,

the two cases were consolidated to form the instant appeal which presents the following issues: (1)

whether the trial court properly conducted voir dire proceedings; (2) whether the trial court erred by

allowing the State to amend the presentment for especially aggravated kidnapping; (3) whether the

State properly complied with Defendants’ request for a bill of particulars regarding the charge of

especially aggravated kidnapping; (4) whether the trial court improperly admitted evidence of prior

bad acts; (5) whether the evidence was sufficient to support the Defendants’ convictions; (6) whether

the trial court’s instructions to the jury included all appropriate lesser-included offenses; (7) whether

the trial court failed to fully and properly instruct the jury concerning the especially aggravated

kidnapping charge; (8) whether the trial court erred by failing to merge the convictions for certain

offenses; and (9) whether the sentences imposed on both Defendants were proper. Defendant Joseph

Combs additionally presents the issue of whether seven of his eight rape convictions should be

reversed because the State failed to allege sufficient facts in the presentment to properly toll the

statute of limitations for these offenses. After a thorough review of the record, we reverse Defendant

Joseph Combs’ conviction for aggravated perjury and remand the matter for a new trial on that

charge. In all other respects, we affirm the judgments of the trial court as modified.

Tenn. R. App. 3 Appeal as of Right;

Judgments of the Criminal Court Affirmed in Part, Reversed in Part, and Modified in Part.

THOMAS T. WOODA LL, J., delivered the opinion of the court, in which JERRY L. SMITH, J., joined.

GARY R. WADE, P.J., filed a separate concurring opinion.

Stephen M. Wallace, District Public Defender; Terry L. Jordan, Assistant Public Defender; and

Joseph F. Harrison, Assistant Public Defender, Blountville, Tennessee, for the appellant, Evangeline

Combs; and Richard A. Spivey, Kingsport, Tennessee, for the appellant, Joseph D. Combs.

Paul G. Summers, Attorney General and Reporter; Peter M. Coughlan, Assistant Attorney General;

H. Greeley Wells, Jr., District Attorney General; and Barry Staubus, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

FACTUAL BACKGROUND

On February 18, 1997, the Bristol Tennessee Fire Department was alerted that a 911 call for

assistance was received from the Emanuel Baptist Church (“EBC”) located on Weaver Pike in

Bristol, Tennessee. Timothy Estes, James Gouge, and Jewel Rogers, paramedics with the Bristol

Fire Department, arrived at EBC at approximately 11:10 a.m. to discover a nineteen-year-old

woman, later identified as the victim, Esther Combs, laying on the back seat of a van in the parking

lot of the church. Estes testified at trial that Esther was demonstrating “seizure-like activity” and

“thrashing about,” with her arms and legs waving when he found her. Although she was awake and

talking, Estes believed that she was not coherent or aware of her surroundings.

Defendant Joseph Combs was present when the paramedics arrived. He told Estes that Esther

was initially discovered in the bathroom. The family removed her from the bathroom, placed her

in the van, and then telephoned 911. Estes asked Joseph to show him where they discovered her.

Joseph unlocked the door to a yellow building nearby. They entered a foyer, traveled through a

second door and proceeded through the fellowship hall. Estes testified that the hall was windowless

and contained two or three sofa beds, flanked by a regular wall and two large plastic sheets. Clothes

and trash were strewn about the floor, with pathways formed between the piles of debris. Estes

found nothing extraordinary in the bathroom and returned to the parking lot. Meanwhile, James

Gouge, another paramedic, had been working with Esther. Gouge testified that he asked a young

man who was sitting on the other side of the seat near Esther’s head how long she had been like this.

The young man turned away and said nothing. Gouge repeated the question, but again received no

answer. When Estes returned, the paramedics transported Esther to Wellmont Bristol Regional

Medical Center (“Medical Center”).

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Esther turned away from the paramedics and curled up into a fetal position on the way to the

Medical Center. As she did this, her shirt raised a bit. Estes and Gouge observed scars on her back.

When Gouge and Estes lifted the shirt a bit further, they noted additional scarring. Her hands, arms,

chin, and forehead were also scarred. The paramedics reported their observations to the medical

personnel once they arrived at the hospital and to the deputy police chief when they returned to the

fire station. Estes testified that, during his seventeen years as a paramedic, he had never before

observed that many scars on a single person.

Esther Combs arrived at the Medical Center at approximately 11:30 a.m. Dr. Gregory Allen

Gerlock, the emergency room physician on duty at that time, was the first person to examine her.

At trial, he described Esther’s initial condition as “acutely ill” and somewhat delirious. Her vital

signs were stable, but Dr. Gerlock was concerned about her “mentation” and the “numerous scars

all across her body.” He testified that there were “scars on top of scars all over” but, given the

emergency nature of the encounter and the number of scars, it was not practical to map them during

the exam. Unable to extract any coherent answers or information from Esther regarding her

condition, Dr. Gerlock asked Joseph Combs whether he knew how she had acquired the marks on

her body. Joseph responded, “What marks?” When Dr. Gerlock replied, “All the scars over her

body,” Joseph informed him that Esther “falls a lot.” At trial, the prosecutor asked Dr. Gerlock

whether, based on his experience and training, he considered the explanation received from Joseph

Combs (i.e., that the injuries were caused by falls) to be consistent with the scars and condition of

Esther’s body. Dr. Gerlock responded negatively. Joseph had also informed Dr. Gerlock that Esther

was “adopted.” However, Dr. Gerlock claimed that he was extremely vague concerning any

additional information, such as where the adoption occurred or any other specific details.

Terri Matney, also on duty in the Medical Center’s emergency room on February 18, 1997,

testified that Esther was “real hysterical” when she arrived. She appeared disoriented and confused

and kept repeating, “I’m sorry. Don’t hurt me. I made the coffee.” Matney tried, unsuccessfully,

to calm her down. The medical staff then pumped her stomach. Matney observed scars “from head

to toe” on Esther’s neck, front side, arms, back, and legs. She had never before seen a patient with

that many scars. Emergency room nurse Vickie Lee Blaylock was responsible for taking blood

pressure readings on Esther. At trial, Blaylock testified that each time she touched Esther’s arm,

Esther would say, “I’m sorry. Don’t hurt me. I’ll be good,” over and over again. Blaylock

corroborated Matney’s observation, i.e., that Esther was thrashing, screaming, and crying--in a state

of delirium--when she initially arrived at the hospital. Blaylock said that later, when Esther calmed

down, she became combative only when someone touched her.

Dr. Gerlock treated Esther until her condition stabilized, at which point he recommended that

she be admitted into the hospital. Esther was transferred to the Cardiac Intensive Care Unit

(“CICU”) of the Medical Center. Elizabeth Owens Cribb, the assistant nurse manager for the

Critical Care Division, was instructed to take photographs of the scars on Esther’s body. She did so

on February 18, 1997, the day Esther arrived at the hospital. Cribb testified at trial that Esther’s body

presented layers of scar tissue along the inside of her thighs and her back, neck, forehead, and chin.

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Esther was drifting in and out of consciousness during the photograph session. Later, when Esther

became coherent, Cribb heard her ask for her family.

Dr. Jennifer Quesenberry Stiefel was the resident physician in charge of Esther’s care at the

Medical Center. Dr. Stiefel’s initial evaluation took place in the emergency room, shortly after

Esther arrived. She described Esther’s condition at that time as “critical.” Her eyes were closed and

she was moaning. Verbal communication was not possible. Dr. Stiefel spoke with Joseph Combs,

who related the following information: Esther had gone to bed at approximately 3:00 a.m. that

morning, complaining only of a mild headache and some abdominal pain. Later that morning, at

approximately 11:00 a.m., they discovered her crumpled on the bathroom floor. Dr. Stiefel asked

Joseph whether Esther had a history of medical or behavioral problems. Joseph reported no

problems, other than some fainting and dizzy spells over the last two or three years, but reported that

Esther had never been evaluated by a physician. When asked whether there was a chance that Esther

had ingested any substance, e.g., household chemicals, alcohol, et cetera, capable of altering her

mental status, he replied negatively.

When Esther became able to converse intelligibly, she informed Dr. Stiefel that she recalled

going to bed at approximately 3:00 a.m. on February 18, 1997, and waking up in the Medical Center

three days later. Dr. Stiefel testified that Esther denied drinking antifreeze and, when she asked

Esther how she had managed to accumulate so many scars, her answer was nearly identical to that

later received from both parents: “I’m a clumsy person. I play rough and I fall a lot.”

Dr. Stiefel ordered a variety of tests performed in an effort to accurately determine the cause

of Esther’s abnormal mental condition, including an arterial blood gas test. The gas test revealed

a condition called metabolic acidosis, which indicated that the patient’s blood was highly acidic.

With this information, Dr. Stiefel narrowed the problem down to approximately five potential

disease processes, one of them being ethylene glycol poisoning, and started Esther on an ethanol drip

with bicarbonate, the treatment of choice when ethylene glycol ingestion is suspected. Over time,

Esther’s condition began to improve.

Dr. Kenneth Emile Ferslew, an expert in the area of pharmacology and toxicology, testified

that ethylene glycol, the chemical compound commonly known as antifreeze, is toxic if ingested.

If the toxin is not removed from the person’s system, two things typically occur. First, the central

nervous system is depressed, the effect of which resembles alcohol intoxication. Second, the liver

metabolizes the compound to form various acids, or metabolites, including oxalic acid. In a period

of two to three days, the oxalic acid will bind with calcium to form calcium oxalate crystals, which

causes kidney failure. If left untreated, death usually occurs within several days of ingestion. After

reviewing the hospital records and studying the symptoms presented by Esther on February 18, 1997,

Dr. Ferslew concurred with Dr. Steifel’s opinion that she was suffering from ethylene glycol

poisoning and concluded that she was also treated appropriately. During cross-examination, Dr.

Ferslew was asked whether a specific test for ethylene glycol poisoning existed and whether it was

performed in this case. Dr. Ferslew replied that such a test existed but, according to the medical

records, it was not performed. On redirect, he explained that this was because the Medical Center

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did not have the ability to perform the test on site and it would have taken several days to get the

results back. In a case where the symptoms of ethylene glycol toxicity are observed, as in this case,

a confirmation test would be senseless because the phase of renal toxicity, which then causes death,

would already have occurred.

With regard to Esther’s physical state, Dr. Steifel’s “head to toe” examination revealed the

following: Esther was responsive to tactile stimulation, i.e., any type of touch would startle her. Old

scars ran the length of her body, front and back, with the area of greatest concentration being the

back and buttocks. The length of the scars varied and they appeared to be distributed horizontally.

Many overlapped each other. None of the scars were recent, and the causative injuries appeared to

have occurred at different times. In response to questions about the origins of Esther’s scars,

Evangeline Combs informed Dr. Stiefel that “Esther was a very clumsy child. She played rough.

She fell a lot. And she was a very active child.” Evangeline claimed that Esther had been born with

clubbed feet, which contributed to her clumsiness. An examination of Esther’s feet revealed “no

clubbing,” however. Dr. Stiefel also reported that Esther’s teeth were in “horrible” condition. She

had multiple dental caries (also known as “cavities”), a severe overbite, and clearly had received no

dental care in recent years. Dr. Stiefel noted that, at approximately 90 pounds, Esther was emaciated

and underweight for her height and build. She was also unable to fully extend her left arm, due to

an injury of some kind. A pelvic examination revealed that her hymenal ring was intact with smooth

borders--a finding she claimed was not inconsistent with penile penetration of her vagina.

The prosecutor asked Dr. Stiefel if, based upon her experience and training and within a

reasonable degree of medical certainty, she could state whether the scars observed on Esther’s back

were self-inflicted. Dr. Stiefel responded that those scars did not fit the pattern or typical distribution

shape of self-inflicted scars. When asked the same question concerning the scars on Esther’s head

and scalp, Dr. Stiefel replied it was “possible,” but “highly unlikely” that the causative injuries were

self-inflicted. As for the other scars, Dr. Stiefel testified that the appearance of some were consistent

with burn injuries; others appeared linear, which would be consistent with cuts made into the flesh.

Burn wounds were located on Esther’s arms, thighs, and backside. Dr. Stiefel was informed by

Evangeline that these wounds were the result of cooking accidents, as Esther frequently prepared

family meals. Dr. Stiefel testified that, all things considered, the scars on Esther’s body were

inconsistent with the personal/medical history provided by Evangeline and Joseph Combs.

Dr. Stiefel learned that Esther was adopted at the approximate age of five or six months and

that she had lived with the Combs family since that time. Esther had never attended public school.

Rather, she had been home-schooled, as were the other Combs children. Evangeline claimed that

Esther had the equivalent of a 12th grade education and was preparing to take the “GED” exam.

As for Esther’s employment status, Dr. Stiefel was informed that Esther’s job was to care for the

children in the church nursery and work for her father, performing cleaning services and secretarial

duties at the church.

Susan Francis Early, a clinical social worker employed by the Medical Center, was asked to

investigate the suspicions of abuse prompted by Esther’s condition. Early testified that her first visit

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with Esther occurred on February 19, 1997, while Esther was still in the hospital. Early noted the

scars on her face, abdomen, breast, and back. She recalled that the scars on her back were thick and

raised approximately 1/4 inch above her skin, running in a “sideways” direction from the base of

her neck to her buttocks. Sections of hair were missing from the top of Esther’s head. Early

questioned both Evangeline and Joseph Combs as to the origin of the scars on Esther’s body.

Initially, neither defendant would respond to her question. Later, Evangeline informed Early that

Esther “fell a lot and was clumsy.” Esther was discharged on February 25, 1997. Prior to Esther’s

departure, Early informed her that the Department of Human Services operated an adult protective

services program and that the program was responsible for investigating suspected cases of abuse

and/or neglect concerning adults over the age of 18. Esther told Early that she wanted to return to

her family and subsequently did so.

Debbie Richmond-McCauley, a detective with the Bristol, Tennessee Police Department, was

also alerted to the possibility that Esther was a victim of abuse. Detective McCauley arrived at the

Medical Center during the evening on February 18, 1997. Esther was unclothed and semi-conscious.

McCauley noted the scarring on Esther’s face, neck, chest, inner thighs, back, buttocks, arms, hands,

and legs. She took photographs. When Esther regained consciousness, McCauley questioned her

about the scars and showed her the photographs. Esther would not look at them or make eye contact

with her. During their meetings, Esther experienced periods of shaking and stuttering; her right leg

shook very rapidly.

Over the next few days, McCauley spoke with the entire Combs family: the parents, Joseph

and Evangeline; Esther’s brothers Jimmy, David and Peter; and her sisters Cindy and Sarah. Joseph

completely disavowed any knowledge of Esther’s scars, claiming that he had never observed any.

According to Joseph, Esther played “rough,” was “very clumsy,” and “fell a lot on the pavement.”

She was outgoing, but did not have a boyfriend or any outside friends. Joseph also claimed that

punishment of the Combs children took the form of restrictions on their television privileges and/or

their liberty (“grounding”) and that he had not spanked any of the children since they were small.

Joseph informed McCauley that Esther was adopted, but he did not recall where the adoption

occurred. Joseph was stuttering and shaking while McCauley questioned him. She asked him to

sign a statement. He refused.

The statements Detective McCauley received from Evangeline Combs were very similar to

Joseph’s, to wit: she had never seen the scars; she was unaware that Esther had any scars; Esther was

clumsy and slow; she fell a lot on pavement; she was outgoing and rough; she cooked a lot, which

may have caused any burns that she suffered; the children had not been spanked since they were very

young; and Esther was adopted. Evangeline did not recall where they had adopted Esther. She told

McCauley that she would find out and give this information to her, but, according to McCauley, this

never happened.

On March 5, 1997, shortly after her release from the hospital, Esther visited Dr. Stiefel for

follow-up care. Joseph and Evangeline Combs accompanied her to Dr. Stiefel’s office, and

Evangeline went with her into the examination room. Esther did not give Dr. Stiefel any new

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information as to the cause of her hospitalization and she reported no additional problems, other than

a recent burn wound on her right third finger. She returned three weeks later, on March 26th. The

burn wound on her finger was healing.

At approximately 8:00 a.m. on March 24, 1997, McCauley accompanied a number of police

officers and firemen with a search warrant for the Emanuel Baptist Church, the location of the

Combs family residence. The search warrant permitted inspection of the premises for safety and fire

code violations. They knocked on the doors and could hear people talking and moving around inside

the building, but no one responded. The officers also telephoned the residence, but no one answered

their calls. After attempting to gain entry for almost three hours, the officers finally forced the doors

open with a crowbar and entered at approximately 11:00 a.m. The entire Combs family was inside

the building and still wearing their sleepwear. Joseph and Evangeline Combs claimed that they did

not hear any knocking on the door and that they were unaware anyone was outside. The police

officers and firemen began an investigation of the interior and took photos which revealed, among

other things, the following conditions: piles upon piles of trash bags, with pathways in between

them; mice in the kitchen, some dead, with mouse feces scattered about; pools of black liquid in and

under the kitchen sink; piles of dirty dishes and spoiled food; a large room with numerous beds and

televisions; cats, birds, and other animals living inside.

On July 28, 1997, Detective McCauley filed a lawsuit on behalf of Esther Combs, the

purpose of which was to appoint a guardian ad litem and conservator to ensure that Esther received

medical care, education, medical insurance, opportunities for employment, a driver’s license, and

other standard personal documentation, such as a birth certificate, Social Security card, et cetera.

In an order dated September 11, 1997, the court appointed attorney David William Tipton to act as

Esther’s guardian ad litem. A hearing date was set for October 3, 1997. On the day of the hearing,

Esther failed to appear. David Tipton, Detective McCauley, and Joseph Combs were present,

however. According to McCauley, Joseph claimed that Esther had run away and that she was

unaware a hearing had been scheduled. Joseph further claimed that, although he had spoken with

her on the phone and seen her during church services, he had no knowledge of her whereabouts at

that time. At trial, David Tipton corroborated McCauley’s testimony, stating that Joseph Combs had

testified that he did not know where Esther Combs was and that he had not seen her in at least a

couple of weeks. Tipton also testified that Joseph was under oath when he made the above

statements. Richard Edward Ladd, Chancellor of the Second Judicial District, presided at the

hearing and similarly testified that Joseph Combs had denied having any knowledge of Esther’s

whereabouts and that he was under oath when he did so.

On October 3, 1997, the entire Combs family drove Esther to the home of Sonja Caroline

Meadows. Meadows testified that they were waiting for her when she arrived home after work at

approximately 5:00 p.m. that afternoon. At Joseph Combs’ request, Meadows had agreed to drive

Esther to a Waffle House restaurant on the interstate near Spartanburg, South Carolina. Meadows

testified that the trip “had something to do with [Esther] appearing in court that day.” Esther brought

with her some clothes, stuffed in plastic grocery bags, and a cellular telephone given to her by Joseph

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Combs. They left at approximately 5:30 p.m. Esther was in “bad shape” during the drive. She cried

frequently and spoke to Joseph numerous times on the telephone.

At approximately midnight, Meadows arrived at the Waffle House restaurant and met

Douglas Carpenter, a personal friend of the Combs family and a pastor at the Palmettoland Baptist

Church near Charleston, South Carolina. Carpenter testified at trial that he had offered to keep

Esther with him and his family for a while “to give her some relief from the pressure cooker.” Via

the media, Carpenter was aware that Joseph Combs was being investigated and that the whole family

was under a great deal of stress. Initially, Joseph declined Carpenter’s offer. Later, Joseph accepted.

Carpenter said he had little knowledge of the court proceedings involving the Combs family; he

knew that Esther was involved in some form or fashion, but he was uncertain to what extent.

Esther stayed with the Carpenter family for approximately four or five weeks. Carpenter

testified that, during this time, there is no question that Joseph or Evangeline Combs knew of

Esther’s whereabouts. Esther spoke with one or both of them at least once a day by telephone.

Carpenter said that Esther occasionally cried, usually at night, and they did their best to console her,

but most of the time she “did real well.” Esther accompanied the Carpenter family on shopping trips

and attended church youth functions with Donna, Douglas Carpenter’s daughter of similar age. The

two girls became good friends. On cross-examination, Carpenter stated that his family did not

restrict Esther in any way during her visit. She appeared to feel very comfortable living with them

and behaved like a “normal teenager.” Occasionally, she would say that she missed her parents and

wanted to go home. She never indicated that she had been abused at home or that she was fearful

of returning there. On redirect, Carpenter admitted that he had observed scars on Esther’s body, but

paid little attention to them because they had “always been there.” He noticed that Esther walked

with a limp, but testified that she did not appear clumsy or fall a lot. In fact, he saw her fall only

once.

The Carpenter family had plans to visit Israel on November 12, 1997. Esther suggested to

them that she stay with her aunt and uncle, Susan and Roger Combs (Joseph Combs’ brother and

sister-in-law) when they left. Joseph Combs agreed. Two or three days before the Carpenters’

departure for Israel, Douglas drove Esther to a Hardee’s restaurant in Denmark, South Carolina.

Roger Combs met him there and then drove Esther to stay with his family at their home in Georgia.

Thereafter, the Carpenter family’s contact with Esther was limited.

Susan Combs testified that Esther appeared very nervous and withdrawn, small and “frail-

looking,” when she arrived at their home in Georgia. Esther also cried a lot, jumped when touched,

and avoided most attempts to make eye contact. She possessed only a few “shabby,” long-sleeved

dresses and a cell phone. She could print, albeit poorly, but was unable to write cursive-style or spell

well. She was also unable to make change with money or drive a car, and she did not have a Social

Security card or driver’s license. She had never heard of Elvis Presley. At first, she also refused to

go outside the house alone. Every three or four days, she talked with one of her parents on the

telephone. After these conversations, she usually appeared upset.

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Susan noticed changes in Esther’s physical appearance and demeanor after she stayed with

them for a while. She had gained weight and changed her attire, e.g., she started wearing jeans and

other styles of pants. She also established eye contact when she communicated with people, seemed

generally happier, and laughed frequently. Although she was reluctant to walk past the edge of the

yard by herself for quite a while, they continuously encouraged her to try and she eventually did so.

Esther telephoned Detective McCauley on February 20, 1998 from Watkinsville, Georgia,

while she was living with Roger and Susan Combs. McCauley drove to Georgia, interviewed Esther,

and took a statement. From there, McCauley went to the Baptist Children’s Home in Indiana, where

she subsequently discovered that the Defendants had never legally adopted Esther. Esther’s natural

mother was Rachel Garcia, a woman who lived in Michigan, north of Detroit. McCauley contacted

Ms. Garcia, who then agreed to a blood test which conclusively proved that she was Esther’s natural

mother.

Dawn Rose Loftis, office manager of the Baptist Children’s Home in Valparaiso, Indiana,

testified that the home functioned as both an adoption agency and a group home facility in 1977 (the

year of Esther’s birth). At trial, Loftis identified the adoption agreement for “baby Garcia” (Esther),

dated March 1, 1978 and signed by Joseph and Evangeline Combs, in which the parties agreed to

adopt the baby girl within six months and also pay a fee to defray the home’s expenses. Loftis

testified that the infant Garcia was given to the Combs before the adoption was finalized. On

September 10, 1980, the home sent a letter to the Combs, at their Indiana address, requesting that

they send a copy of the final decree of adoption. The letter was not returned, and no reply was

forthcoming. The home sent a second letter of request on January 9, 1984. Again, the letter was not

returned and no reply was received. More than ten years later, on March 11, 1994, a third letter was

sent. The letter was returned and stamped: “Forwarding Order Expired.” As of the date of trial, the

file on baby Garcia reflects that the home did not receive a final decree of adoption or any other

communication from the Combs after November 8, 1979.

On March 6, 1998, Detective McCauley brought Esther back to Dr. Stiefel for reexamination.

Approximately one year had transpired since the hospital incident and Esther’s last examination.

Dr. Stiefel noted that Esther had gained a significant amount of weight (approximately 24 pounds)

and appeared “healthy, rosy.” She made eye contact during conversation and the condition of her

teeth had greatly improved. Esther was then-currently experiencing nightmares and pain in various

parts of her body, however. During the appointment, she also admitted that she had suffered

repetitive beatings with baseball bats and electric cords and that she had ingested antifreeze the year

before, in an attempt to commit suicide because she saw “no escape.” Dr. Stiefel’s reexamination

revealed no new or additional scarring on Esther’s body.

During cross-examination at trial, Dr. Stiefel testified that Esther’s March 1998 appointment

was set up by Detective Debbie Richmond-McCauley, who informed her that Esther was then “in

hiding” at the behest of protective services. Dr. Stiefel acknowledged that the February 1997

hospitalization discharge summary stated that Esther had “firmly denied any type of physical abuse

in either the past or the present” and that she had also refused to take advantage of any form of

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protective services. Dr. Steifel also testified that Esther’s family was not present on every occasion

that Esther denied suffering abuse. However, Dr. Stiefel remarked that Esther appeared “extremely

nervous” during their discussions concerning protective service options.

The victim in this case, Esther Combs, testified at trial that she had recently changed the

name on her birth certificate to Elsa Rachel Garcia. (Notwithstanding the name change, in this

opinion we shall refer to her by the name she was called when the offenses in this case were

committed.) At the time of trial, Esther was twenty-two years old (date of birth: November 16,

1977). She had five “siblings” while a member of the Combs family: James was the oldest; Esther

came next; the third oldest was David; then came Cindy, Peter, and Sarah, in that order of age.

Esther testified that both Joseph and Evangeline had informed her that she was adopted by the

Combses at the age of four-and-one-half months. Joseph told her that her mother was Hispanic and

her father was Caucasian.

Esther’s first memories as a child took place when the Combs family lived in Merryville,

Indiana. At that time, Joseph Combs taught at a Bible college for novice pastors. The Combs moved

from Indiana to Florida sometime in 1986, when Esther was six or seven years old. Joseph worked

as a pastor in Florida for a few years. Thereafter, they traveled to various states, evangelizing on the

road and living in a trailer for approximately one and one-half years. In April 1989, the family

settled down in Bristol, Tennessee, where Joseph became the pastor of EBC. They lived in the trailer

for a few more months, then transferred their residence to a yellow building on the church premises,

which also housed the church gymnasium and fellowship hall.

During Esther’s testimony, the State informed the trial court that it was preparing to ask some

questions which concerned only Defendant Evangeline Combs. A hearing ensued outside of the

presence of the jury. Thereafter, the trial court instructed the jury, prior to the victim’s testimony,

that it should consider the upcoming evidence only as to the guilt of Defendant Evangeline until

directed to do otherwise. The jury was also told to consider the evidence of other crimes presented

at trial for the limited purpose of constructing “the complete story” of the crime of especially

aggravated kidnapping, and not as proof of either Defendant’s disposition to commit a similar crime.

As to the other counts, the jury was to consider the evidence in determining only whether Evangeline

possessed “guilty knowledge.”

Following the trial court’s limiting instruction, Esther began with testimony concerning the

wounds and abuse inflicted upon her by Evangeline while the family lived in Indiana. Esther

identified a photograph of herself with large bandages covering both of her hands and arms up to the

elbows. According to Esther, the underlying injuries were burns caused by hot oatmeal. Evangeline

had taken the other children to wash their hands and instructed Esther not to touch the stove while

she was gone. Esther nevertheless stirred the oatmeal in an effort to help, but she dropped the spoon

into the pot in the process. When Evangeline discovered the spoon had fallen into the oatmeal, she

forced Esther’s hands into the hot food until she retrieved it. Her hands and arms were burnt as a

result, and the wounds were very painful. Evangeline bandaged them herself. Esther did not receive

medical treatment. Another time, Evangeline pushed Esther because she was not climbing the stairs

-10-

fast enough. Esther tripped and hit her chin, which left a scar. Esther testified that the scar on her

right hand was caused when Evangeline opened a pair of scissors and used one of the blades to cut

her. An additional scar on her hand was caused when Evangeline held Esther’s hand on a red-hot

stove burner for an extended period of time. The various marks on her chest and another on her left

arm resulted from those occasions when Evangeline would twist and pull Esther’s skin with a pair

of needle-nosed pliers until a chunk of flesh came off. Esther further testified that her front teeth

were in poor condition because they were previously knocked out of her head. This took place after

one of the other children had “turned her in” for jumping on the bed. To teach Esther not to do this

again, Evangeline picked her up by her arm and leg, swung her around, and threw her into the wall.

She hit the wall with her face, and four front teeth fell out. She was not taken to a dentist. Instead,

Evangeline pushed the teeth back into Esther’s head. After a while, they reattached. As an

additional form of punishment, Esther was occasionally forced to sleep naked in the basement of

their Indiana home. It was uncomfortable and very cold in the winter. One of Esther’s earliest

memories was of a time when Evangeline tied her to a high chair and threw her down the stairs. She

recalled tumbling down two flights of stairs and landing in the basement. Evangeline left her there.

No scars resulted from this event, but Esther recalled being “banged up, black and blue” for a while.

Next, Esther testified as to the treatment she received from Evangeline Combs while the

Combs family lived in Clearwater, Florida. Esther first pointed to the photograph of a scar on her

middle finger. According to Esther, this scar was produced when Evangeline placed her hand on the

counter and then hammered this finger until it “busted open.” Another time, Esther was whipped

with a rope because the baby sitter had taught her how to write her name. On yet another occasion,

Evangeline whipped the bottom of Esther’s feet with an electrical cord because she believed Esther

had been kicking the curtains. Other punishments inflicted upon her while in Florida included denial

of food and additional instances of skin removal with the needle-nosed pliers.

Regarding the abuse Esther suffered while the Combs family traveled from state to state in

the trailer home, Esther testified first that Evangeline burned her legs because the baby, Sarah

Combs, had a diaper rash. Because it was Esther’s job to change Sarah’s diapers, Evangeline viewed

Sarah’s rash as proof of Esther’s negligence. Wanting to demonstrate to Esther how a diaper rash

felt, Evangeline burnt the inside of both of her thighs with a curling iron. The wounds were very

painful, and it was difficult for Esther to walk afterward. Evangeline also beat the inside of Esther’s

thighs with a shower brush to make boils. First, she would use water to wet the brush and the inside

of Esther’s thighs. Next she beat the skin until it made boils, and then beat the boils until they broke

open and started bleeding.

Next, Esther testified about the wounds and abuse Evangeline inflicted upon Esther while

the family lived in Tennessee. She claimed that one of her arm scars resulted from an incident

occurring on Jimmy Combs’ birthday. Evangeline was angry because the kitchen was not clean, so

she threw a spice bottle through the window and it broke. Evangeline instructed Esther to clean it

up, and Esther thought she complied, but she had missed one rather large piece of glass. To show

Esther what might have happened if one of the younger children had happened upon it, Evangeline

took Esther’s arm and cut it open with the piece of glass. The bleeding was heavy. To stop it,

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Evangeline ran Esther’s arm under water. When this did not stop the bleeding, she stuffed paper

towels into the wound and wrapped bandages around it. One day, after the injured area began to

heal, Evangeline flew into a rage for some reason, grabbed Esther’s arm, and “tore” the wound open

again. The bleeding was profuse. Esther received no medical treatment for either injury.

Another Tennessee incident occurred shortly after Jimmy Combs’ birthday. Esther was

caught looking at a watch that Jimmy had received as a present. To teach her that she must never

touch another person’s property, Evangeline burned Esther’s arm in two places with a curling iron.

On a different occasion, Evangeline beat Esther “all day long” with a water hose for falling asleep

in church, and then shook Esther by her hair until it began to fall out. A photograph which revealed

numerous scars on Esther’s buttocks was presented in court. Esther testified that one of the scars

was caused when Evangeline burned her with the top of an iron because she allowed the spaghetti

to burn. A scar on her shoulder resulted from being struck by Evangeline with a claw hammer, and

additional scars around her mouth and chin were the result of being whipped in that area or having

objects thrown at her by Evangeline. Esther claimed that Evangeline gave her numerous black eyes

during their stay in Tennessee and generally whipped her at least once per day with a coiled metal

cord. When the black eyes were severe, the Combses did not allow her to attend church.

When the State’s evidence regarding Defendant Evangeline Combs had been concluded, the

trial court reemphasized that the evidence must be considered as to her guilt alone. The court then

gave the jury limiting instructions, similar to the instructions previously given for Evangeline, which

concerned the upcoming proof of “other crimes” allegedly committed by Joseph Combs.

Esther began by testifying that, while the family lived in Florida, Joseph “belted” her after

discovering that the babysitter had taught her how to write her name. Joseph informed her that

“Jesus didn’t learn to read or write until he was 12, and that [she] wasn’t going to either.” On

another day, while the family was living in the trailer, Joseph laid her on her back and whipped her

stomach with a type of “flip-flop” sandal because “he heard something about a pink belly.” He did

not stop until Esther could remain perfectly still without crying. In Tennessee, Joseph beat her with

a water hose for falling asleep during church services. He made her take off her clothes first, to

make sure that “he did not miss any inch of [her] skin.” Esther claimed that, later that afternoon, he

also beat her with a belt but she did not recall the reason for it. Esther next identified a photograph

of a hole in the wall of Joseph’s office. She claimed that the hole was created by her head, when

Joseph repeatedly banged it into the wall. Another time, Joseph became angry because the grocery

store was closing and Esther had not yet completed a list of what the family needed. He kneed her

in the stomach and knocked the wind out of her. As she bent over, he went to knee her in the

stomach a second time but missed. He caught her in the eye instead. She fell backward. Her eye

became black and blue and swelled shut. She wore a patch for a long time, but did not receive

medical treatment. At the conclusion of Esther’s testimony concerning Joseph Combs, the trial court

repeated for the jury the limiting instructions previously given them.

Esther also testified as to what specific facts gave rise to the individual counts in the

presentment against Joseph and Evangeline Combs. Concerning count 2, charging both Defendants

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with committing aggravated assault between June 1, 1996 and September 1, 1996, Esther stated that

the incident occurred because Esther had not finished her chores. Earlier in the day, the Combs

family was barbecuing outside because it was summertime. Then it began to rain. They brought the

grill inside, but Esther had not finished cleaning the dishes or the laundry. As punishment, Joseph

took her into the gymnasium and beat her with a rope. Esther was screaming, but Joseph told her

he would not stop beating her until she stopped screaming. She did not stop. Consequently, he

wrapped the rope around her neck and draped her over his back. She recalled that her feet lifted off

of the floor. Evangeline watched the episode. Eventually, Esther passed out. She woke up later on

the floor.

Counts 7 through 10 charged Evangeline Combs alone with committing separate offenses

of aggravated child abuse. The incident giving rise to count 7 occurred in February 1994. Esther

recalled that the other children were making Valentine cards. Evangeline became angry for some

reason and took Esther to the gymnasium to “beat” her. She began by beating Esther’s backside with

a baseball bat, but Esther turned her body and the bat hit her elbow. Esther claimed that it was very

painful and her elbow swelled up, but she received no medical attention. Instead, her arm was placed

in a sling for what seemed to Esther like months. When church members asked questions about

Esther’s arm, Evangeline told them that she sprained her elbow when she swung two gallons of milk.

Esther testified that she was unable to straighten her arm afterward.

Count 8 stemmed from an offense which was alleged to have occurred in November 1994.

Esther recalled that it took place near Thanksgiving Day. She was cleaning out the refrigerator to

create room for the holiday fare. To prevent Esther from disposing of any edible foodstuffs,

Evangeline wanted to check the spoiled food before Esther threw it away. Quite a bit of food had

gone bad. After a while, Evangeline appeared to find the parade of rotten food tiresome. She threw

a wooden shoe at Esther, hitting her above the eye. The wound bled profusely. Evangeline tried to

stop the bleeding because the wound was “right on [her] face where people could see [her] at

church.” She knew Joseph would be upset by this. Unable to check the bleeding, Evangeline got

a sewing needle and began to stitch the wound closed. Esther was in great pain and would not stop

wiggling around, so Evangeline sat on her while stitching the skin together. Again, Esther received

no medical attention. Upon discovering the injury, Joseph restricted her from attending church until

the wound healed. Later, Evangeline removed the stitches and Esther wore a hairstyle with bangs

to cover the forehead scar.

The incident underlying count 9 was alleged to have occurred in September 1994. Esther

testified that Evangeline was using needle nose pliers to construct a Christmas plaque that day. She

called for Esther. When Esther arrived, Evangeline grabbed the skin on Esther’s hip with a pair of

needle nose pliers. She then pulled and twisted Esther’s skin until a chunk came off. Evangeline

called such wounds “marks of the beast.” Esther was unable to recall anything she had done to

deserve punishment on that occasion.

The offense in count 10 allegedly occurred on a day between September 1995 and November

1995. Esther testified that she had a considerable amount of work to do that day and she was running

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behind schedule. Evangeline asked Esther whether she had completed cleaning the kitchen. Esther

told her “yes,” which was untrue. She had planned to finish cleaning the kitchen at a later time, but

Evangeline checked before she had a chance to do so. As punishment for lying, Evangeline made

Esther drape her body over the kitchen window ledge and beat her with a baseball bat. Esther’s body

kept slipping from the window, however. Evangeline recruited Jimmy and David Combs to hold

Esther in place. The boys held her by the feet and hands while Evangeline beat her with the bat.

Esther claimed that the beating broke her tailbone, and she could barely walk. Joseph Combs gave

Esther four Tylenol and four ibuprofen for the pain, and some vitamin E to speed healing. She

received no medical attention.

Count 11 alleged that Joseph Combs committed aggravated perjury on or about October 3,

1997. Esther testified that she was aware Detective Debbie Richmond-McCauley had filed a lawsuit,

because she was present when the police officer delivered Joseph the subpoena. Evangeline Combs

thought the officer’s knock on the door was a UPS delivery. Esther did not open the door, but she

could see that the caller was a police officer, so Joseph answered the door instead. Esther heard

Joseph say, “She’s not here right now, but I’ll give it to her.” When the officer left, Joseph told

Esther that the subpoena required Esther to show up in court because Detective McCauley wanted

her to have a “legal babysitter” to manage her money and other needs. He said, “I don’t think you

need that, do you?” Esther replied, “No,” because she did not understand what was going on.

Joseph told her not to worry about it, because she would be in another county when the court date

arrived and he would report to the court that she had run away. On the court date, Esther was at

Sonja Meadows’ house. Later, Joseph “was laughing at how he had made a fool out of Ms.

[McCauley] and the judge by saying that [Esther] had run away.” From Sonja Meadows’ house,

Esther went to South Carolina because Joseph thought “things were getting a little too hot.” Later,

she stayed with Roger and Susan Combs in Georgia.

Count 12 charged Joseph Combs with committing aggravated rape in April 1989 (Esther was

under thirteen years of age at this time). Esther testified that Joseph made her perform oral sex on

him on a day near Peter Comb’s birthday, April 25th. The Combs family had since settled in Bristol,

Tennessee, but was still living in the trailer at that time. Esther claimed that Joseph called her into

the bedroom of the trailer, closed the door, sat down on the bed and exposed his penis. He then

placed Esther’s hand upon it and told her that “he knew [she] wanted it.” He made her put her head

down and placed his penis into her mouth. She testified that when Joseph was angry with her, he

made her swallow his ejaculate. He called it “sugar water.”

Counts 13 through 19 charged Joseph Combs with the rape of Esther Combs. Count 13

concerns an incident that occurred on November 16, 1990, Esther’s thirteenth birthday. According

to Esther, Joseph informed her that he wanted some coffee that day. She made the coffee and

brought him a cup. He was sitting in a chair in the foyer at the time. He told her that he wanted to

give her a birthday present and closed the doors to the foyer. Esther was then directed to get down

on her knees and perform oral sex on him. Joseph instructed her “how hard and how fast to pump

it” until he “did it in her mouth.” She was not allowed to wash her mouth out afterward.

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Count 14 charged Joseph Combs with the rape of Esther during the summer of 1995. Esther

testified that the kids were playing outside on the day he committed this particular offense.

Evangeline Combs was also outside and Joseph was inside, standing by the door watching everyone.

Joseph called Esther inside to perform oral sex on him. Esther responded that she could not because

the Bible said that it was wrong. Joseph told her that “it was okay with God because [she] was his

adopted daughter, [not] his biological daughter. And that King David had concubines.” He then

placed his penis into her mouth and made her “do it until he went.” This time, she was allowed to

wash her mouth out afterward.

Count 15 alleged that Joseph Combs committed the crime of rape against Esther on June 16,

1991. The date was Evangeline Combs’ birthday. Evangeline had gone to the park with the other

children. Esther remained behind because she had not yet finished cleaning the kitchen when they

departed. Joseph had been at a meeting, but he came home before the rest of the family returned

from the park. He stood before the kitchen window, where he would be able to observe Evangeline’s

return. He had Esther get underneath the counter to perform oral sex on him. Joseph placed his

penis into her mouth until he “went” and told her she was “special.” She was not allowed to rinse

her mouth out.

Count 16 charged Joseph Combs with raping Esther on November 25, 1993. It was

Thanksgiving Day and dinner was nearly ready. Evangeline Combs was in the kitchen, yelling,

because the dishes were not yet cleaned. She kept sending Esther to the front of the building, where

Joseph was sitting in the dark waiting for her, because every five minutes she had to be beaten for

one reason or another. After a while, he appeared to grow tired of whipping her. Since the family

was busy in the kitchen and he was just sitting in the dark, he made Esther perform oral sex on him.

Again, he placed his penis in her mouth and ejaculated. This time he allowed her to wipe her mouth

with his boxer shorts.

Count 17 alleged that Joseph Combs raped Esther on November 16, 1993. It was Esther’s

sixteenth birthday. Esther did not recall where the rest of the family had gone. Joseph was in the

foyer and called her to come in because he had something he wanted to give her for her birthday.

When she arrived, he closed the door and opened his boxer shorts. (According to Esther, Joseph’s

“normal” attire was boxer shorts.) She performed oral sex on him, and he ejaculated into her mouth,

which she was not allowed to wash out.

The incident giving rise to the rape charge in count 18 occurred on February 14, 1991. The

other Combs children were in the kitchen making Valentine’s Day cards, and Evangeline Combs was

busy doing something in the gymnasium. Esther was clearing a table when Joseph told her that he

wanted some coffee. When she brought it to him, he closed the doors and made her perform oral

sex, in a fashion similar to the other instances.

Count 19 alleged that Joseph Combs committed another rape of Esther. The incident

occurred on February 4, 1992. Joseph was in his office and had spilled a “Coke” under his desk.

He instructed Esther to bring him another drink and also clean up what he had spilled. She

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clambered onto the floor underneath his desk. He grabbed her head and made her perform oral sex

on him as he sat in his chair. Esther was still underneath the desk when Evangeline Combs came

into the room. Evangeline demanded to know what Esther was doing down there. Joseph

“composed” himself and Esther resumed cleaning the floor. Joseph was in his boxers, as usual, and

she was not allowed to clean her mouth afterward.

With regard to her life in general, Esther testified that she had never been allowed to visit

other children or go anywhere or do anything without Evangeline, Joseph, or one or more of her

siblings present. Moreover, no visitors were permitted inside the Combs residence at EBC. Joseph

told her that this was because their home was “a mess.” Esther recalled that various church members

had come by at different times to deliver food, but they were either met at the door and not allowed

in, or the Combs family would not answer the door at all and the visitor would eventually leave the

food on the doorstep. On the occasions that Esther was not allowed to attend church services, she

was ordered to stay in a small room near the men’s bathroom. No one stood guard over her, but

Evangeline placed powder in front of the door. Footprints in the powder would reveal any

disobedience. This area by the bathroom was also where Esther slept the majority of the time. She

was not permitted to sleep with the other children because she reportedly “snored really loud” and

“smelled bad.”

Esther did not have a driver’s license, a Social Security number, or any other standard form

of identification. In addition, she was not able to read or write well. The other children participated

in home-schooling sessions, but Esther was not allowed to join the lessons until her chores were

completed, and this did not happen often. At home, Esther was responsible for the laundry and the

ironing, making the beds, cleaning the dishes and the house, cooking the meals, making the grocery

list, and whatever else needed to be done. (Because she could not read or write, she prepared the

grocery list by copying the letters from near-empty packages of food.) Esther claimed that her

siblings had no responsibilities in the way of chores, and Esther did not go to bed until her chores

were completed, normally between 3:30 and 5:00 a.m. The other members of the family usually

retired between midnight and 1:00 a.m., and they arose anywhere between 9:00 and 11:00 a.m. At

whatever time each member of the Combs family got out of bed, Esther was responsible for

preparing that person’s breakfast. If all seven of them got up at different times, she cooked seven

separate breakfasts.

Esther testified that she had been informed several times by both Defendants over the years

that her “purpose in life” was to act as a “servant” to the Combs family. On those occasions she did

not perform this function properly, she was punished. The “normal position” she assumed when

either Defendant beat or whipped her required her to take off all of her clothes, place her hands on

the back of a chair, and bend over.

Esther testified that on February 17, 1997, the day prior to her hospitalization at the Medical

Center, she did not make the coffee “right.” When this occurred, the coffee was thrown in her face

and she was beaten. This particular day was no different. Esther decided she “couldn’t take it

anymore” and “wanted to die.” In the early hours of February 18, 1997, she filled a 24-ounce

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styrofoam cup with antifreeze, drank it, brushed her teeth, and then went to bed. When she awoke,

she was in a bed at the Medical Center. When the prosecutor asked Esther why she failed to report

the many incidents of abuse to any medical personnel or the police officers she had encountered

during her stay at the hospital, Esther replied that she was “scared.” She had previously run away

twice, but she was returned to the Combs both times and severely punished afterward. (Esther was

unable to recall the dates that she ran away.) Consequently, Esther believed the same thing would

happen again. Esther testified that there was no one outside of the Combs’ household to whom she

could turn for help. She recalled someone mentioning “protective custody” while she was in the

hospital, but she did not comprehend what that meant. Approximately one year later, while living

in Georgia with her aunt and uncle, Susan and Roger Combs, Esther decided to telephone Detective

McCauley and report what the Defendants had done to her.

Esther’s first runaway experience involved Officer Vic Jordan, with the Bristol, Virginia

Police Department. Officer Jordan testified that on November 5, 1992, he was summoned to an

“Abco” store because a female had reportedly locked herself in the bathroom and refused to come

out. Officer Jordan arrived at the scene and beat on the door. Someone inside the bathroom

unlocked it. When Jordan entered, he observed a young female standing in the corner, “kind of

“cowed down” and “real timid.” The female was later identified as Esther Combs. Jordan

transported her to the police department, where she was subsequently picked up by Joseph Combs.

During cross-examination, Officer Jordan read his official report of the incident which stated: “--Vic

Jordan, talked with Esther who said that she had a misunderstanding with her parents, and that’s why

she left home.” Officer Jordan confirmed that the report was an accurate statement of what Esther

had said to him.

Esther’s second runaway incident was reported to the police department by Joseph Combs

on September 29, 1996. It was a Sunday. When Detective Jerry Smeltzer arrived at the Emanuel

Baptist Church to investigate, Joseph told him that Esther had disappeared from the church nursery

during the evening church service. In the nursery, Smeltzer observed a large rocking chair laying

on its side, items from a lady’s handbag strewn about, and two large “gobs” of human hair, one on

a table and the other on the floor near the door. Smeltzer testified that Esther was located in Carter

County at 4:30 a.m. the next morning and returned home. Smeltzer telephoned the church the next

day. A male voice answered. Smeltzer asked to speak with Esther but the man said that this was

not possible. He made two more attempts with similar fruitless results.

The State presented numerous witnesses to testify regarding their contact with the Combs

family and what they had observed concerning the family’s treatment of Esther. In this vein,

Gayland M. Oaks, II, testified that he had known the Combs family for twelve years. He met Joseph

Combs in 1981 at Hyles-Anderson College, where Joseph was “a Bible teacher.” Gayland was one

of his students at the time. Gayland graduated in 1985 and moved to Ohio. Some time later,

Gayland called Joseph (who was living in Florida) to invite him to teach a seminar on family life in

Ohio. Instead, Joseph asked Gayland to serve as his associate pastor in Florida. Gayland accepted.

In Florida, Gayland was responsible for building a music ministry and increasing church attendance,

among other things. His wife, Malinda, babysat the Combs children one day per week from July

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through October 1987, when Malinda became pregnant and Gayland assumed her babysitting

responsibilities. Joseph informed Gayland that only a very few people were permitted to interact

with the Combs children. Thus, he should consider it a “great honor” to be selected.

Gayland watched over the Combs children each Thursday beginning in November 1987, until

May 1988. He arrived at approximately 8:00 a.m. and stayed until somewhere between 8:00 and

10:00 p.m. Joseph told Gayland that he was only responsible for supervising the children, nothing

more, because “Esther would take care of the food, the babies, the diapers, everything.” Gayland

testified that Esther was nine years old at the time and took care of the babies “exceptionally well.”

She brought them their bottles, changed their diapers, and prepared food for all of the other children;

she made “whatever they asked for, whenever they asked for it.” Rarely did the children eat together

or at one time, and they seldom went outdoors during the day. Joseph said that he did not want the

authorities to learn that the children were not enrolled in school.

Gayland also testified that Evangeline and Joseph Combs treated Esther differently from the

other children. Joseph had informed Gayland that Esther Combs’ “purpose in life was to be a servant

. . . that was what God had created her to be.” Consequently, the Combs were training her to do that.

When Joseph and Evangeline returned home on the nights that Gayland babysat, they asked him for

a report of the childrens’ behavior. On those occasions that Gayland reported a child other than

Esther had committed some indiscretion, the Combs would instead punish Esther or send her to the

office. According to Joseph, the office was where the spankings took place. Joseph informed

Gayland that “it was necessary to spank a child through their rebellion . . . [which] meant to spank

them until they stopped resisting you, stopped struggling against you, stopped crying.”

Regarding Esther’s appearance, Gayland testified that she was “very frail, weak, [and]

appeared sickly.” He noticed a scar on her upper lip and another on her hand. She always wore long

dresses which covered most of her body, her arms, and all of her legs. The dresses were often too

big for her. She wore her hair long, with bangs which covered most of her forehead. Her teeth were

“very bad, the worst [he] had ever seen, protruding out of her mouth and in deplorable condition.”

Joseph did not specifically explain to Gayland how Esther had received any of her injuries. He said

only that Esther was “clumsy” and “fell a lot.” Gayland testified that he never personally saw her

act clumsily or fall down, however. In addition, Esther was “the most cooperative and amiable and

pleasant of the children . . . . [I]t was not necessary to ask her to do anything. She did it without

asking.” She was not disobedient to Gayland and, at church, she appeared to obey her parents also.

Gayland never saw Esther playing rough with the other children or injure herself, and he never saw

her apart from the other members of her family. In May 1988, Gayland and his wife returned to

Ohio, after which they had no further contact with the Combs family.

Malinda Oaks, wife of Gayland Oaks, also testified that she had performed babysitting duties

for the Combs family. During one such occasion, Malinda discovered that Esther was unable to

write her name. She was nine years old at the time. Malinda taught Esther to write her name and

also gave her instruction on the alphabet. When Evangeline and Joseph returned home that evening,

Esther showed them what she had written. She was “excited” about her accomplishment, but the

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Combs appeared displeased and sent her to “the office.” When asked to describe Esther’s

appearance, Malinda replied that Esther had scars around her mouth and a broken tooth. Malinda

also reported that she had never noticed Esther to be clumsy, fall frequently, or injure herself.

Kelly Rose Wood testified that she also babysat for the Combs family while they lived in

Florida. It was during the fall of 1986, and Sarah Combs had just been born. One evening, she

observed that Esther had kicked the covers off while sleeping. Wood then noticed that the back of

Esther’s legs were “very, very scarred.” They had “stripes all over the back of them; some old, some

new, some very fresh, just scar upon scar upon scar . . . .” Wood observed that the back of Cindy

Combs’ legs were also visible, and they did not have a single mark on them. Another time, Wood

noted a gouge wound on Esther’s chest. It was a “fresh wound.” Wood also testified that Esther did

not appear to be clumsy and she did not behave in a rebellious manner. Instead, Esther was “very

quiet” and “meek.” She was a small, thin child, and the clothing she wore was very loose, baggy,

and long, so that you did not see much of her. Wood claimed that Mr. and Mrs. Combs treated

Esther very differently from the other children, but she did not elaborate further.

Andy Steven Arnold testified that he knew the Combs family. He regularly attended Sunday

and Wednesday services at EBC from the early months of 1992 until the fall of 1993. Arnold

testified that Esther always wore long dresses with long sleeves and that she did not interact with

other adults or the other children at the church. Instead, Esther was “very withdrawn” and “kept to

herself.” When Arnold attempted to talk to her, she would not make eye contact with him, and she

only spoke when asked a direct question. Evangeline was always nearby. Arnold claimed that

“[Esther] was just never really out of Mrs. Combs’ sight.” On two separate occasions, Arnold

observed that Esther was injured. The first time, her arm was wrapped in gauze and supported by

a sling. The second occasion Esther showed up for church with black eyes and bruises on her face.

Joseph Combs said that Esther “was clumsy, fell down, things of that nature.” Evangeline Combs

gave similar explanations. Esther missed more church services than the other children. The Combs

family usually said that she was “sick.” Arnold also testified that he delivered food to the Combs

family several times, but he was never allowed into their home. Instead, he was instructed to set the

food on a concrete slab at the door of the fellowship hall, knock, and then leave the premises.

Betty Atkinson testified that she played piano during the church services at EBC, beginning

in July 1994. Atkinson also testified that Esther wore long-sleeved clothing and rarely interacted

with anyone outside of the Combs family. Atkinson confirmed that Evangeline Combs was usually

by Esther’s side and that Esther appeared subdued, obedient, and avoided eye contact when spoken

to. As far as Atkinson could tell, Esther was not clumsy and she did not fall a lot. Evangeline

informed Atkinson that Esther loved to serve and this was her life’s purpose, but Esther was

“rebellious.” Atkinson never saw any indication of this, however. To her, Esther appeared “very

sweet . . . [and] obedient to her parents.”

David Lamar Wright attended EBC from 1982 until January 1994. Wright testified that he

became acquainted with the Combs family, including Esther, during this time. He said that Joseph

Combs had characterized Esther as a “rebellious child.”

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Esther Owens, a member of EBC from 1990 to 1993, testified that Esther did not interact

with other members of the church and that she did not recall ever seeing Esther without Evangeline

close by. According to Owens, Esther regularly missed church services. On some of those

occasions, Joseph Combs gave the congregation reasons for her absence, e.g., she had an accident

with her bicycle, lifted a jug of milk, et cetera. Esther looked “[r]eally, really skinny and real bad”

when Owens knew her, and she always wore long dresses with long sleeves. Joseph asked Owens

to bring food to the family on a few occasions, and he always instructed her to leave it on the porch.

He said that someone would come out and pick it up later.

Similar testimony was given by numerous other members of EBS. Leona Dickens, Mary

Johnson, and Donna Sue Hensley attended EBS for forty-four years, forty-five years, and two years,

respectively. Dickens, Johnson and Hensley testified that they observed the Combs family during

church services, and all three noted obvious injuries to various parts of Esther’s body, including her

arm, eyes, and forehead. The three witnesses were also given various explanations by Joseph and/or

Evangeline as to how the injuries were sustained, e.g., Esther was clumsy and fell often. None of

these witnesses had ever observed Esther fall or behave clumsily, however. The witnesses

corroborated the testimony of previous witnesses concerning Esther’s style of dress (long length/long

sleeves) and demeanor. Specifically, they claimed that Esther was different from the other Combs

children in that she appeared frightened, quiet, and generally did not interact with others or make eye

contact during conversation. Johnson testified that instead of playing with other children, Esther

worked. The other Combs children always played. Johnson never saw them do any work. Hensley

similarly testified that the Combs children, save Esther, were allowed to do “pretty much whatever

they wanted.” Esther was responsible for taking care of young Sarah Combs and, whenever the

Combs family attended a social gathering, Esther served the other members of the family their meals.

On the matter of delivering food to the Combs residence, Hensley testified that she performed this

service on more than one occasion, but was never once allowed into the Combs home. Ordinarily,

she would knock on the door and no one answered. After a few minutes, she put the food down and

left. The last time she delivered food, she knocked, left the food, and then drove around the building.

By the time she returned to the door, the food had disappeared.

Dr. Mona Gretel Harlan, a forensic pathologist, testified that she examined Esther on April

4, 1999, at the prosecutor’s request. Her examination revealed the following: The scars on the inside

of Esther’s thighs were consistent with burn wounds. The scars on Esther’s forehead were not

significant in number, but they were layered, some as many as three layers thick, indicating that some

of the newer injuries were inflicted upon existing scars. The broad scar on Esther’s forearm was

consistent with a deep wound which, for some reason, did not heal properly due to reinjury or

infection. When asked whether the cause of the scars could have been accidental trauma, Dr. Harlan

testified affirmatively with regard to Esther’s forehead scars, especially if the injuries occurred when

she was a young child. She said that children have large, heavy heads. Thus, they are prone to tip

over when moving in a forward direction. By contrast, the wounds on Esther’s back, thighs, and

buttocks were not consistent with either self-inflicted or accidentally-caused injuries. In her

summation, Dr. Harlan reported that the majority of Esther’s scars were the result of non-accidental

and non-self-inflicted trauma.

-20-

Dr. Harlan also testified that she was unable to date the causative injuries. However, none

of the observed scars were red at the time of the exam. In other words, the scars had all healed as

much as was possible and none of them appeared to be the result of an injury sustained within the

past year. A careful and thorough count of the scars on Esther’s body revealed 410 discrete scars.

Dr. Harlan stated that during her 25 years of practice, she had never before seen so many individual

scars on one person’s body.

Dr. Henry Nichols testified that he evaluated Esther’s dental condition on May 11, 1998, and,

at that time, her front teeth were “grossly displaced” or “bucktooth exaggerated.” In Dr. Nichols’

opinion, the only reasonable cause of the displacement would be some sort of “traumatic episode,”

i.e., a blow, fall, concussion, or other sort of abrupt physical force contact with the tissue. The

prosecutor asked Dr. Nichols if he could state, within a reasonable degree of medical certainty,

whether the condition of Esther’s front teeth was consistent with complete displacement, followed

by reinsertion of the teeth into the gums. Dr. Nichols responded affirmatively, stating that tooth

displacement to the degree present in Esther’s mouth “just doesn’t occur in nature.” Dr. Nichols

stated that in his twenty years of practice, he had never observed an arrangement of teeth similar to

Esther’s. Moreover, the shape of Esther’s dental arch was not the typical “U” shape, but “terribly

distorted.” The blunted appearance of the roots of Esther’s upper front teeth and the condition of

her lower jaw revealed further evidence of trauma: the top half of one of her lower incisors was

missing and a cyst had formed on the root, without any sign of decay (the typical cause). With the

permission and assistance of Esther’s natural parents, Bill and Rachel Whetstone (formerly Rachel

Garcia), Dr. Nichols treated Esther’s conditions and replaced her two upper front teeth with a

permanent bridge.

Dr. Glenda Jo Fox Ramsey, a radiologist, testified that she evaluated x-rays of Esther’s left

elbow and, in her opinion, the elbow appeared “abnormal.” Specifically, the distal humerus, a

portion of the long bone at the elbow, had not grown properly. The x-ray showed a healed fracture,

caused by some sort of “trauma” (defined by Dr. Ramsey as “an injury, a blow to the bone that’s not

a normal degree of stress”). She further testified that the appearance of the bone indicated an injury

“consistent with being struck by an object such as a [baseball] bat” or the result of a fall. The injury

was not consistent with the action of swinging a gallon milk jug. Dr. Ramsey also testified that x-

rays of Esther’s sacrum (“tailbone”) revealed an abnormal “acute” curvature of the bone, as if it were

“collapsed inward.” Finally, she testified that Esther’s “bone age” was “delayed” by at least three

years, i.e., the development of her bones was significantly slower than her chronological age,

reporting that such “[a] delay in bone age is a common manifestation of malnutrition.”

At the conclusion of the above testimony, the State rested its case. Thereafter, Samuel

Johnson, an acquaintance of Defendant Joseph Combs, testified that he met Joseph at the Hyles-

Anderson Bible College in 1983. Johnson saw him again in Florida in 1986. At that time, Joseph

was starting the Tampa Bay Baptist Church. Johnson became a member and saw the Combs children

regularly (three to five times per week) for the following two-and-one-half years. In addition,

Johnson had stayed as a guest in the Combs’ home for two weeks while he was seeking employment.

Johnson testified that their home was “very normal,” clean, and organized.

-21-

Aaron P. Welch, pastor of the Charles Towne Baptist Temple in South Carolina, testified that

he met Joseph Combs in 1979. Welch was a student of Joseph’s at Hyles-Anderson Bible College

and graduated in 1982. In 1986, he saw Defendant again. Joseph was preparing to move to Florida

at the time. In 1987, Welch arranged to have Joseph come to his church in South Carolina and

preach for him. Thereafter, Welch scheduled Joseph to preach on a regular basis, sometimes as

much as twice a year. When this happened, Joseph stayed for five to six days and brought his family

with him. Welch found the Combs children, including Esther, to be “quiet, well-mannered kids”

who “always dressed very neat.” He described Esther as “real sweet” and “quiet.”

Joseph Henry Esposito, a pastor at Pacific Baptist Church in Long Beach, California, testified

that Joseph Combs was one of his professors at Hyles-Anderson Bible College. In 1986, Esposito

left the college and moved with his wife to Clearwater, Florida, where he worked for one year as an

assistant pastor to Joseph at the Tampa Bay Baptist Church. When he and his wife first arrived, they

were invited to live in the Combs’ home for two weeks until they found a place of their own.

Esposito saw the Combs children often and his wife babysat occasionally. Esposito claimed that the

Combs’ home was “beautiful” and the kids were all “normal, happy children.” During cross-

examination, Esposito testified that he had observed no scars or marks on Esther’s body while in

Florida. He did recall a possible chip in one of her front teeth, however. When asked whether Esther

was ever rebellious, clumsy, or troublesome, Esposito replied negatively. Esposito’s wife, Mary

Jane, also gave testimony which essentially echoed her husband’s statements.

Thomas Edward Boyle testified that he attended Hyles-Anderson Bible College from 1981

to 1984. Joseph Combs was one of his professors. In the fall of 1986, Boyle and his family moved

to Clearwater, Florida, and joined the church that Defendant was pastoring. During the next two

years, Boyle encountered Joseph and his family during church services on Sundays and Wednesdays.

Boyle and his family also visited the Combs several times at their home, which he described as

“clean.” During cross-examination, Boyle said that he noticed Esther’s front teeth were crooked,

and he did not observe any evidence of injuries or clumsy behavior.

Trent Pollack testified that he met Joseph Combs while attending Hyles-Anderson Bible

College. In 1986 or 1987, Pollack and a few other people moved to Florida to start a church.

Pollack was to be the music director, and he lived with the Combs family for approximately one

month upon his arrival. The Combs’ home served as a place for meetings and the headquarters for

the new church. Pollack testified that everyone pitched in to keep the house clean. While in the

Combs home, Pollack did not observe any of the children being singled out for preferential

treatment. He testified that Esther participated in the home schooling process, along with the rest

of the Combs children. During cross-examination, Pollack said that he observed scars on Esther’s

hands and that he had asked Joseph Combs about them. Joseph informed him that Esther had placed

her hands into scalding water and that she appeared to have a high tolerance for pain.

Jeffrey Arnold Coester, a pastor and part-time clothing salesman in Illinois, testified that he

met the Combs family when he visited Bristol, Tennessee, in 1995. Coester testified that the

children, including Esther, were playing sports (basketball and baseball) at the time. According to

-22-

Coester, Esther was dressed “cool and comfortable,” the same as the other children. He also reported

that the other children did not behave differently toward her, and Esther was not asked to run errands

for them. Coester came to Bristol because he was considering joining Joseph Combs’ ministry.

Consequently, he wanted to learn something about the Combs family and spoke with each child

individually for approximately ten minutes. According to Coester, Esther was “very comfortable”

with him, “a little bit shy, but never withdrawn.” During cross-examination, Coester testified that

he had observed scars only on Esther’s face and that he was concerned about the condition of

Esther’s teeth. Coester said that he did not move to Bristol or take the job at EBC, but he gave no

reason for this decision.

Ruby Rhotenberry, a regularly-attending member of EBC from 1967 to 1998, testified that

she saw the Combs children at church services approximately three times a week. Rhotenberry said

that the family, including Esther, appeared “very friendly, happy, always laughing, talking, friendly.”

Rhotenberry claimed that she had “very few” private conversations with Esther, but, when she did,

Esther never reported having been mistreated or sexually abused by either Defendant. During the

trial, Rhotenberry identified eighteen photographs that she personally took of the Combs family on

various occasions. Most of the pictures showed family gatherings, with the majority of the family

present. Our review of this evidence reveals the following: Esther was smiling in all of the

photographs, and at least ten of the pictures show Esther wearing clothes with short sleeves. Her left

elbow and arm appears abnormal and thin. Scarring is apparent on at least one arm in two

photographs, and her front teeth are grossly malaligned. During cross-examination, Rhotenberry

testified that Esther was a thin, frail, well-behaved girl, who was never rebellious or clumsy in her

presence.

Pauline Melvin testified that she was a member of EBC from 1981 until it closed in 1998.

Melvin met the Combs family when they came to the church in 1989, and she usually sat with the

Combs children during church services. Melvin reported that all of the children were “nice” and

“happy” and gave her hugs when they met. During cross-examination, Melvin testified that Esther

was thin, well-behaved, and obedient. In addition, Esther did not fall down frequently or appear

clumsy. Melvin also admitted that she was “not really close” to Esther and that she never saw much

of Esther’s skin exposed, since she usually wore long dresses.

Elizabeth Huff and her husband, Dickie Lee Huff, started attending EBC in 1996. At trial,

Elizabeth testified that she observed the Combs children, including Esther, during church services

and that they were “all friendly” and “gave us a hug on Sunday.” In 1997, the Huffs attended a

dinner function with the Combs family. Esther appeared to be “just fine,” an obedient child, and not

rebellious. Elizabeth acknowledged that she saw Esther only on Sundays. Dickie Lee Huff testified

that the Combs children, including Esther, appeared to be “very happy.” During cross-examination,

Dickie Lee admitted that he also had very little contact with the Combs family, except on Sunday.

Dickie Lee also testified that Esther was thin and wore baggy clothing, but he claimed that she

looked no different from the other Combs children. He never observed Esther falling down or being

clumsy, and he had not observed any scars on her face or body. Dickie Lee admitted that he paid the

bond for Joseph Combs in this case.

-23-

Hilda Jane Combs, Joseph Combs’ mother, testified that prior to 1989, she only saw her son

and his family once or twice a year. After Joseph became the pastor at EBC, she saw the Combs

family more frequently, at least three times a week (at church services) and during visits. Mrs.

Combs testified that all the children seemed “happy,” and Esther “was always smiling.” Mrs. Combs

said that the children “got along fine” and played together, but Esther was a “rough little girl” and

liked to wrestle with the boys. Mrs. Combs further claimed that Esther had a temper and, “if she felt

something wasn’t right, she’d tell you.” Consequently, Mrs. Combs professed confusion as to why

Esther would not tell her if something was wrong. Mrs. Combs was unaware that anything was

amiss until Esther left town. Later, Esther told her that she left because she was afraid of Debbie

Richmond [McCauley] and that she would be placed in an “insane asylum.”

Mrs. Combs testified that Father’s Day 1991 (the day Joseph allegedly committed the rape

in count 15) was special because it fell on Evangeline’s birthday. Mrs. Combs said that the family

gathered at Mrs. Combs’ house for fried chicken after church that day and stayed until the time came

to leave for the evening church service at 6:00 p.m. Mrs. Combs also testified that on Thanksgiving

Day 1993 (the day the rape in count 16 was allegedly committed), the Combs family spent the day

at her house and stayed until 11:00 p.m. During cross-examination, Mrs. Combs claimed to have

no knowledge of any scars on Esther’s body. When asked whether Esther “helped her family out,”

Mrs. Combs replied that she “played too much” to be helpful. Mrs. Combs described Esther as a

smiling, cheerful, obedient child who was always running from place to place, talking to people and

keeping busy.

The other five Combs children, James, David, Cindy, Peter, and Sarah Combs, also testified.

James Jack Combs, the oldest, was the only child legally adopted by the Combs. (David, Cindy,

Peter and Sarah were the Combs’ natural children). At the time of trial, James was twenty-two years

old. James testified that during the time the Combs family lived in the fellowship hall of EBC, an

average day for the household began at approximately 6:00 a.m. on weekdays. On the weekends,

they started their day a little later. James claimed that he did not eat breakfast every morning but

when he did, he fixed it himself or Peter helped him. Esther never prepared his breakfast. Further,

as each Combs child finished the morning meal, that child then carried his or her own dishes to the

kitchen, where Peter, Cindy, Sarah and Esther would rinse them and place them in the dishwasher.

After the children had finished breakfast and dressed, their studies began. Evangeline and Joseph

Combs typically instructed the children for four to five hours. All the children, including Esther,

participated in the instruction. According to James, Esther was able to read and write. He had

previously observed her reading to Peter, writing in the kitchen, and performing mathematical

calculations.

At lunchtime, each of the Combs children usually made his or her own lunch. Each child was

also responsible for performing certain chores around the home. James cared for the dogs and cats.

Esther was responsible for making her own bed and picking up her clothes. She also helped prepare

dinner and clear the table afterward. The job of making a grocery list was assigned to no one in

particular. When someone in the family believed something was needed, the person wrote the name

of the item on a piece of paper attached to the refrigerator. James claimed that Esther did not have

-24-

more chores than the rest of the family, and she did not stay up until 3:00 a.m. to complete the chores

she did have. As far as James knew, no member of the family ever treated Esther as a servant or

believed that she had been born to such a station.

James testified that after the schoolwork and chores were completed, the children were

normally allowed to watch television and movies or play video games. The children were also given

access to computers for using the Internet, playing games, and doing homework. Esther participated

in all of these activities. The family had a telephone, and Esther used that too. The Combs children

recreated together outdoors. They often rode bikes or played basketball, baseball, or Frisbee in the

church parking lot or DeFriece Park, which was located approximately one block away. Esther had

her own bike. The children also went shopping at the mall, out to eat, and to the movies together.

Sometimes their parents or another adult would accompany them on these outings, and sometimes

they went without adult supervision.

James testified that the Combs family ate their evening meal together and that various

members of the family took turns preparing this meal. Esther was not required to complete her

chores or serve everyone at the table before she ate, and she was given the same food as the rest of

the family. At the conclusion of the evening meal, each member of the family brought his or her

own dishes to the kitchen where Peter, Sarah, Cindy, and Esther rinsed them and placed them in the

dishwasher. Evangeline Combs did the family’s laundry and James assisted her. Esther’s chores

did not involve the laundry. When bedtime arrived, the children all slept together in the fellowship

hall, Esther included. James never saw Esther sleeping naked or in a room near the showers. That

room was used to store musical equipment: speakers, amplifiers, keyboard, et cetera.

According to James, punishment of the Combs children usually took the form of some type

of restriction, either of their liberty (“grounding”) or one of their privileges (watching television, et

cetera). Esther’s situation was no different. She was not beaten, whipped, or starved. James did see

Esther suffer injuries, however. On one occasion, he saw Esther get hit in the face with a plastic bat

because she stood on the wrong side of the plate during a baseball game. This resulted in a black

eye and her face was red for a while. Another time, he saw her slip on a base and scrape her knees

on the asphalt parking lot. Yet another injury occurred while the children were assisting their parents

with bringing in the groceries. Esther had been warned not to carry more than one gallon of milk

at a time, but she did not listen. She was carrying two gallons of milk, and the door started to close

on her. In an effort to catch it, she swung the gallons and twisted her arm. Evangeline Combs put

ice on the arm and placed it in a sling. James testified that the rope burn on Esther’s neck was

caused by Esther herself. Esther had placed a rope around her neck to pull a wagon with her friend

in it up and down a steep hill. Her neck became red and Evangeline told her to stop. She did not.

Eventually, she cut her neck. James also claimed that he never saw Esther naked, and he never heard

Esther or anyone else claim that she had been injured, beaten, or molested by either parent. Joseph

Combs’ attorney asked James whether he had witnessed the specific incidents which gave rise to the

charges against the Defendants. In each case, James replied negatively.

-25-

With regard to Esther’s attire, James claimed that no one instructed her how to dress.

Because Esther had a smaller frame than Cindy Combs, she wore Cindy’s hand-me-down dresses.

During church services, Esther would either sit with the family or work in the nursery with other

female church members. The nursery had a door to the outside, whereby one could leave without

passing through the sanctuary. James claimed that he was home but not awake when the family

discovered Esther ill in the bathroom in February 1997. He recalled that she had seemed “normal”

the prior day. James and the rest of the family visited Esther in the hospital at every opportunity.

She was “really, really happy” to see Evangeline and Joseph, and she also appeared “happy” to go

home afterward.

During cross-examination, James testified that he received his driver’s license on the 26th

or 27th of September 1997. He also claimed that, prior to receiving his driver’s license, he did not

drive any vehicle on any public road with one exception: the day he drove a car which he was

considering purchasing. Once licensed, James drove the other Combs children, including Esther,

to the mall and other places. He testified that this happened “on many occasions” before Esther left

town on October 3, 1997.

Joseph David Combs, Jr., commonly known as “David” Combs, was twenty-one years old

at the time of trial and the third oldest child in the Combs family (Esther being the second oldest).

David’s testimony at trial essentially paralleled that of James in all material aspects: David claimed

that Esther slept in the fellowship hall, along with the rest of the children, and that she did not sleep

naked. David also testified that after the Combs children arose at approximately 6:00 a.m., they

fixed their own breakfasts and “the girls” (Esther, Cindy, and Sarah) cleaned up. The children were

home-schooled, every day, from approximately 7:30 a.m. until after noon and Esther regularly

participated. At lunchtime, their mother, Evangeline, fixed sandwiches. Esther and Cindy usually

assisted her. David stated that the evening meal was a “special” time, which Joseph liked the family

to spend together. This meal was usually prepared by Evangeline alone, and the girls cleaned up.

With regard to chores, David testified that each child was assigned individual tasks to

perform. David was responsible for taking out the trash and vacuuming. Esther made her own bed

and helped with the cooking. She did not have more chores to do than the other children, and David

never heard anyone say that Esther’s “purpose” in life was to be a servant. During the children’s

leisure time, Esther enjoyed playing video games and watching television. Most frequently, the

children played basketball, baseball, and rode bikes. Esther joined them frequently, but she played

“rough.” On Friday and Saturday nights, the children frequently went to the mall. Esther went with

them “every time.” David said that they were unaccompanied by their parents on these trips, and

James drove.

According to David, punishment usually involved “grounding.” Occasionally, David was

spanked instead or required to write “stuff” on the chalkboard. David claimed that Esther was not

punished more severely than the other children, and she was not whipped. David recalled four

injuries suffered by Esther while they lived at EBC. The first was a burn that occurred in 1994. The

children had been discussing a story they heard on the news about a child who had seriously burned

-26-

his hand on a stove. Esther told them that a stove would not burn if the hand was removed quickly

enough. As a demonstration, she placed her hand on the stove and burned it. The second injury

resulted from a mishap with her bicycle in 1996. She stepped on the brakes too hard, slid off of the

seat, and landed on the center bar. (She was riding a boy’s bicycle.) The third injury also occurred

in 1996. The children needed keys which were locked inside of Joseph’s office. They tried to break

in through the ceiling, and Esther fell through it. She hit her head on the bookcase and again on the

floor when she landed. The fourth injury came about when David accidentally gave Esther a black

and blue eye with his elbow while playing.

David testified that he had never seen Esther without clothes on and she never complained

of being molested by anyone. Similarly to James, David was asked whether he had witnessed many

of the individual incidents which gave rise to the charges against the Defendants. In each case,

David also replied negatively. Regarding Esther’s style of dress, David implied that long dresses and

sleeves must have been Esther’s choice, since the children were not told what to wear. David also

said that the Combs had three different telephones in their home, and he saw Esther use them. She

also used the computers and had friends with whom she communicated via the Internet. David

claimed to have a “good relationship” with Esther.

David testified that Esther appeared to be “fine” on the day before she was hospitalized. The

next morning, however, one of the other siblings woke him up to come to the bathroom. There he

discovered Esther “sitting on the commode and beating her head against the wall.” He picked her

up, laid her on her bed, and sent one of the other children to inform the Defendants. Later, David

moved her out to the van because the rescue people had not arrived. He estimated that they had been

waiting approximately thirty minutes, and Esther had already stopped breathing three times.

Therefore, the Combs were preparing to drive her to the hospital themselves. He also claimed that

Esther seemed “happy” to return home from the hospital.

During cross-examination, David claimed that James drove the Combs children, including

Esther, to the mall on twenty-five or thirty occasions. When asked how many times the Combs

children were allowed to have friends over to spend the night in the EBC fellowship hall with them,

David replied that this never happened. David also testified that on March 24, 1997, the day the

police and fire department were banging on the fellowship hall doors, he did not hear anything.

When the police and firemen finally entered, the time was 11:00 a.m. and it was a Monday. The

children were all still in their bedclothes and lying around, however, because everyone was ill that

day.

Cindy Combs was twenty years old at the time of trial and the fourth oldest child in the

Combs family. With regard to the children’s sleeping arrangements, preparation of meals, chore

assignments, punishment, and Esther’s frequent participation in home-schooling and playtime, her

testimony essentially mirrored that of her older brothers, James and David. She also testified that

she had never seen Esther without clothes and that she had no knowledge regarding any abuse or

molestation of Esther. With regard to Esther’s injuries, Cindy corroborated David’s testimony that

he accidentally elbowed Esther in the eye while playing. Another time, Cindy saw Esther get hit on

-27-

the forehead with a bat during a baseball game. Cindy was also specifically asked whether she had

witnessed the specific incidents which gave rise to the individual counts against the Defendants. She

replied negatively to all questions.

Cindy testified that on the evening of February 17, 1997 (the day before Esther was taken to

the hospital), she and David, Esther, Peter, and Sarah all began to feel sick and went to bed.

Sometime later, Cindy woke up and saw Esther running in the direction of the bathroom. Cindy ran

after her. She found Esther in the bathroom with the door shut. A few minutes later, she heard a

banging sound. Cindy woke up Peter first. Later, they woke up David, who removed Esther from

the bathroom. Cindy dialed 911. While they were waiting for emergency medical personnel to

arrive, Esther stopped breathing a few times and began to thrash around. The family became nervous

when the ambulance did not come quickly. They moved her to the van for transport to the hospital.

Shortly thereafter, the ambulance arrived.

Peter and Sarah Combs, the second youngest and the youngest of the Combs children,

respectively, gave testimony essentially similar to that related by the three other siblings. Peter,

fifteen years old at the time of trial, testified that Esther was home-schooled, along with the rest of

the children, and that Esther was able to read and write. Peter claimed that he and Esther read books

together and that Esther wrote short stories. According to Peter, Esther slept in the same room as

the other children, she did not serve food to the rest of the family, she was not responsible for

cleaning up after meals, she was not assigned more chores than any other member of the family, and

she was not considered the family servant. Peter further claimed that punishment for all of the

children consisted of “grounding.” He never saw Esther being whipped, beaten, or starved. Esther

was allowed to do the same things the rest of the children did, to wit: she watched television and

movies, played Nintendo, talked on the telephone, went to the mall and the park, rode her bike, and

used the computer to“surf the Web.” Peter claimed that he never heard the Defendants tell her how

to dress, he never saw her unclothed, and she was not told where to sit during church services. In

fact, she sat with a number of different people. As for injuries, Peter said that he witnessed a few.

He saw her injure her hand in January 1997, when hot gravy or grease somehow splashed onto it

while she was removing a roast from the oven. She immediately ran to the sink and washed it off.

Later that evening, her hand was red but she claimed to be “okay.” Another injury occurred in 1994

or 1995, during one of the many baseball games the children played together. Someone threw a bat,

which hit Esther in the face. Esther also occasionally scraped her knees when she played on the

asphalt parking lot. Another time, he watched her zealously scratch mosquito bites until they bled.

Peter recalled that Esther was “very happy” on the day before she went to the hospital in

February 1997. She also appeared “relieved and happy” to see the Defendants when they visited her.

Before she left town to stay at Sonja Meadows’ house, Esther told Peter she was “sick of Debbie

Richmond [McCauley] coming after us, [and] coming after her. She’d seen what Debbie had done

to our family and she was just sick of it. She didn’t want it.” Peter was asked whether he had

witnessed the individual incidents which gave rise to the charges against the Defendants. Peter

responded negatively to all questions.

-28-

The youngest child, Sarah Jane Combs, gave testimony similar to Peter’s and the other

children regarding the sleeping arrangements, mealtime procedures, home-schooling participation,

shared chore assignments, standard punishments, the lack of seating restrictions during church

services, and Esther’s involvement in family playtime. Sarah also claimed that she never saw Esther

unclothed or punished severely. She recalled only two incidents where Esther suffered any injuries.

The first occurred in the kitchen, when Esther broke a plate which cut her arm. The second occurred

during a baseball game, when one of their friends hit the top of Esther’s eye with a baseball bat. It

was an accident. Sarah also claimed that Esther was able to read and write. She explained that

Esther would often read to her, and Sarah observed her compose long stories and poetry.

According to Sarah, the day prior to Esther’s hospitalization in February 1997 was not

unusual. Esther seemed “happy.” While in the hospital, she also seemed “happy” to see the family

when they visited. Esther never complained to Sarah that either Defendant had ever injured her.

When Sarah was asked whether she had witnessed the individual incidents which gave rise to the

charges against the Defendants, she replied negatively regarding all counts.

Mary Ellen Caldwell testified that she was working 7:00 p.m. to 7:00 a.m. as a nurse in the

cardiac intensive care unit at the Medical Center during Esther’s treatment in February 1997.

Caldwell questioned Esther about the numerous scars on her body. Esther responded that she “fell

a lot when [she] was little.” Caldwell recalled the visits by Esther’s family and described them as

“very civil, normal.” Caldwell also recalled speaking to Joseph Combs on the telephone when he

called to inquire about Esther’s condition. He asked Caldwell to tell Esther that “he loved her.”

During cross-examination, Caldwell testified that she observed Esther clutching her stuffed animals

and exhibiting “restless movements” while at the Medical Center. She also moaned loudly and

claimed to have nightmares involving her father.

Donna Sue Tiller also worked as a nurse in the Medical Center’s cardiac intensive care unit

while Esther was a patient. She was scheduled to work only one day during Esther’s stay, from 7:00

p.m. to 7:00 a.m., and she saw Esther’s family during visitation. Tiller said that the other Combs

children were outgoing and friendly. By contrast, Esther would only speak when spoken to, and she

did not initiate conversation. At approximately 4:00 a.m., Esther woke up “whining.” She said she

was “homesick,” missed her “mama,” and wanted to go home. During her bath, Esther told Tiller

that she did most of the cooking at home because she “loved” it. She also said that her siblings had

their own chores to do. During cross-examination, Tiller testified that she asked Esther about the

many scars on her body, but Esther refused to discuss them. According to Tiller, the scars on

Esther’s back and buttocks were too numerous to document.

Defendant Joseph Combs testified that he and his wife adopted their son, James, when he was

only a few days old. Shortly thereafter, Joseph and Evangeline were told they could not have

children, but they wanted additional children for James’ sake. Consequently, they decided to adopt

another child. Joseph conceded that he was familiar with the adoption process, based on his

experience with James, and that he had signed an adoption agreement with the Baptist Children’s

Home (the “Home”) concerning Esther (then “baby Garcia”). Joseph acknowledged that a provision

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in the fourth paragraph of the agreement stated as follows: “We agree to pay the fee of gift to the

Baptist Children’s Home to pay the costs of the Social Services and to help defray the expenses of

the birth and care of the child.” The terms of the fee were yet to be discussed, but it was due before

the adoption was finalized. The Home allowed Joseph and Evangeline to take Esther home for a few

months prior to signing the adoption papers. She was five months old at the time. Joseph signed

the agreement but a few months later, he became “concerned” about the terms. He sought advice

from an attorney named Charles Lee Zandstra, who informed him that he would be required to pay

the Home ten percent of his income for an indefinite period of time once the adoption was finalized.

Joseph called the Home. Whoever answered the telephone (Joseph claimed to not recall the name)

told him to consider the matter further and to “take his time,” because “there was no rush.”

During his testimony, Joseph Combs was shown copies of two letters previously sent to him

by the Home. The first was dated March 31, 1978; the second, January 9, 1994. Both requested that

he send the Home a copy of the adoption decree concerning Esther. Joseph admitted doing nothing

in response to the first letter and claimed that he did not recall receiving the second. When his

attorney asked him why he never legally adopted Esther, Joseph replied that, initially, “it was fear

of financial pressure.” Since he and his wife already had full custody, they were in “no rush.” As

the years rolled by, he feared that “if [they] tried to go forward at that point that [they] would lose

her.” Joseph admitted that Esther did not have a Social Security card, a birth certificate, or a drivers

license while she lived with them.

Joseph testified that the Combs family lived in Indiana for thirteen years. In 1986, they

moved to Clearwater, Florida, because Joseph wanted to start a church there. All of the Combs

children had already been born when they left Indiana except for Sarah, the youngest, who was born

in Florida. Their home in Florida was “very nice”: 2200 square feet, with four bedrooms, 2 1/2

bathrooms, and a pool. Joseph claimed that all of the Combs children were outgoing; they frequently

stopped people on the street to talk with them. Joseph denied that he made any attempts to hide the

children. He also denied that Esther was required to prepare the family’s meals. His wife,

Evangeline, performed that duty. According to Joseph, the relationship between the members of the

Combs family was real close, and the family “did a lot together.” Joseph tried “to expose [the

children] to as many different places and things as possible,” and Esther was not treated any

differently than any other person in the family. Joseph denied using “the office” in the Florida

home as a place to spank Esther. Rather, he claimed that the house did not have an office. The

family lived in Florida for eighteen months.

Joseph refuted the testimony of Malinda Oakes and Esther concerning Esther’s inability to

read and write. He claimed that she knew how to do both before leaving Indiana and her talents

included creative writing. Esther participated in the same home-schooling program as the rest of the

children. Instruction took place from 8:00 a.m. until approximately noon, Monday through Friday.

Joseph admitted that Malinda Oaks had volunteered to help teach the children. Joseph informed her

that this was not necessary, but she could possibly tutor them in some subjects if she liked. In sum,

he did not encourage her or strictly prohibit her from participating. Joseph also claimed that the

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testimony of Rose Kelly Wood, who noticed that the back of Esther’s legs were “very, very scarred,”

was untrue.

In 1988, the Combs family left Florida and traveled from state to state in a “forty-five foot

fifth wheel trailer.” Joseph had received numerous invitations for extended meetings at churches

across the country, and he decided to accept them. Joseph denied giving Esther a “pink belly” during

their travels in the trailer, or at any other time.

In April 1989, the family settled down in Bristol, Tennessee. Joseph assumed the pastorship

of EBC, and the Combs took up residence in the fellowship hall of the church. According to Joseph,

all of the children, including Esther, slept in the fellowship hall. He claimed that Esther interacted

well with the other Combs children. She was “positive,” “cheerful,” and played with all of them.

She also played with some of the children who attended EBC and rode her bike. Esther was not

restricted as to where she did these things. With regard to chore assignments, Joseph testified that

no child was given more to do than any other child and none of them complained. Moreover, he

claimed that Esther was never told that her purpose in life was to be a servant and she was never

treated as such. She did not retire at 3:00 a.m. and she was not forced out of bed at 5:00 a.m. Esther

watched television with the other children and she was never deprived of food. Joseph testified that

Esther was not sick more than the rest of the Combs children; it only appeared that she missed more

church services because she worked in the nursery so frequently.

Regarding Esther’s two attempts to run away, Joseph gave the following explanations: The

first incident followed an argument that occurred between Joseph and his wife. Esther overheard

the argument, misunderstood it, and then decided to take a walk. During her walk, she became

confused as to her whereabouts. She noticed a little store on the roadway and headed for it, but she

became nervous when she saw a police car pull over. Hence, she ducked into the bathroom and

locked the door. Meanwhile, the Combs family was searching everywhere for her. Within a few

minutes of her departure, they realized she was gone. Joseph said that he was “not comfortable”

with the idea of Esther being outside because it was raining and rather windy that evening. When

the police reported that they had found her, Joseph picked her up. The second runaway incident

began with Esther hearing noises during her shift in the church nursery. Esther became frightened

and went outside to investigate. Once outside, she thought someone was chasing her, so she started

running. The next thing she knew, she woke up on Highway 421. She began walking along the

road. A pastor and his wife from Mountain City picked her up and tried to help her. She would not

tell them who she was, so they turned her over to the local authorities. The Combs family learned

she had been found at approximately 3:00 or 4:00 a.m. the next morning and then brought her home.

Joseph testified that on February 17, 1997, the day before Esther was taken to the hospital,

the Combs children had played vigorously all day. Esther was fine, but tired. When evening came,

some of the children did not feel well. Everyone went to bed. The next morning, David alerted he

and Evangeline that Esther was having “some kind of seizure or something.” She was in the

bathroom, “kinda jerking around.” Cindy dialed 911. When it appeared as though she stopped

breathing a few times, and the emergency personnel had not arrived, Joseph was afraid she would

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die any second. The ambulance finally arrived, however, and transported her to the hospital. The

rest of the family followed in a car.

The following morning, Detective Debbie Richmond-McCauley questioned Joseph in an

attempt to determine how Esther had become sick. Joseph testified that McCauley’s questions

concerned only Esther’s then-present condition. She did not ask him about the scars on Esther’s

body and Joseph never told her that Esther was “clumsy” and “fell a lot.” He also denied that he was

ever asked to give or sign a statement. Joseph claimed that he visited Esther in the hospital at every

opportunity and that he and Esther had a “close” relationship. They discussed many personal matters

and he loved her. He thought that she also loved him. Consequently, he was “bewildered” by the

accusations against him.

Joseph recalled when the Bristol Fire Department came to the EBC fellowship hall in March

1997. A day or two later, Cindy, Peter and Sarah Combs (the minor children) were removed from

the custody of the Combs for approximately one year. In June 1997, the family moved to a place just

outside of Bristol. In October 1997, Esther left town. She stayed with Sonja Meadows for a short

time, and then moved to South Carolina. There, she stayed with Reverend Carpenter’s family.

Joseph testified that he was present when Esther left town. He claimed that Esther was “scared” and

“frustrated” by the police driving by the Combs residence and the unfamiliar people dropping by

their home. Esther knew that Joseph had been summoned to go to court. She wanted to leave the

area and asked him to assist her. Joseph agreed to do so.

Following the hearing on October 3, 1997, the Chancery Court for Sullivan County at Bristol,

Tennessee, issued the following court order which was read into evidence during Joseph’s testimony:

Upon Petitioner’s motion for physical and psychiatric examinations and appointment

of guardian ad litem, brought on notice for hearing on October 3rd, 1997, before the

Honorable Richard E. Ladd, Respondent did not appear. Respondent’s caretaker,

Joseph Combs, appeared and testified that after living with him for over nineteen (19)

years, Respondent suddenly left without her [sic] of her plans or whereabouts some

time prior to the service of the instant petition on August the 4th, 1997. Although

Mr. Combs testified that Respondent, Esther Combs, has called him on the telephone

since and has appeared in his Church audience, he has never informed her of this case

and has no idea whatsoever as to her present whereabouts.

Joseph admitted that he had knowledge of Esther’s whereabouts at the time of the hearing

and that his statement to the contrary was untrue. However, Esther’s attorney had informed her that

she was under no duty to appear. Thus, what she did was her choice, and she chose to leave town.

She was no longer a minor, and Joseph was not her caretaker. To avoid doing anything illegal,

Joseph had asked for advice from three different attorneys on this matter. (He did not testify

regarding the substance of such advice.) Joseph said that he and Esther kept in touch via cellular

telephone, but he did not see her again until she testified at trial.

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Concerning the charge of especially aggravated kidnapping (count 1), Joseph testified that

he never confined Esther by a display of deadly weapons and that he never observed Evangeline do

so. The Combs household had three working telephones, and the doors to their residence all locked

from the inside, not the outside. In other words, it was not possible to prohibit anyone from exiting

the Combs residence by locking the doors. Further, Joseph testified that in the period of time from

April 30, 1990 to October 3, 1997, he and Evangeline took frequent trips, during which the children

were left at home without adult supervision. Even when the Defendants were home, the children

were all allowed to come and go as they pleased, within the normal parameters typically allowed

children. Esther never declared a desire to leave home, and, when her hospitalization and the two

runaway incidents were over, she had returned home voluntarily.

With regard to count 2, which alleged that Joseph choked Esther with a rope sometime

between June 1, 1996 and September 1, 1996, Joseph testified that the charge was untrue.

Specifically, Joseph claimed that on March 26, 1996, he underwent surgery to replace the aortic

valve in his heart. As a result, he was incapacitated for a period of time thereafter, e.g., he could not

preach or drive for months, and he often felt dizzy and sick. Full recovery took approximately one

and one-half years. In sum, he asserted that the operation left him so physically weak that he could

not have committed this crime.

With regard to count 15, alleging that Joseph raped Esther on June 16, 1991, Joseph testified

that the family spent the entire day eating fried chicken at his mother’s house. They returned home

in time for the evening service at church. On November 25, 1993, the day Joseph allegedly

committed the crime of rape in count 16, the Combs family had again spent the entire day at his

mother’s house. It was Thanksgiving Day, and the family did not return home until approximately

midnight.

Joseph also denied committing the crimes in the other counts against him. Joseph’s attorney

showed him a photograph of four items (Exhibit 178): an umbrella with some of the spokes exposed,

a piece of wood, a coiled metal wire, and a piece of metal (resembling a bent curtain rod). The items

were discovered by the police investigators at the EBC fellowship hall after the Combs’ departure.

Joseph denied using the items to beat or whip Esther. Joseph also denied using Esther’s head to

make the hole in his office wall, as shown in the photograph numbered Exhibit 174. Joseph then

repudiated Esther’s other allegations, to wit: he claimed he did not beat her black and blue with a

water hose as punishment for running away; he did not ever give her a black eye; he was unfamiliar

with the “normal position” she had claimed to assume during beatings; he did not require that Esther

wear certain types of apparel; he did not force her to wear her hair in any particular style; powder

was never placed in front of the door to Esther’s room; the condition of Esther’s front teeth was the

result of a fall, rather than the colliding of her face with a wall; and he did not treat her any

differently than the other Combs children. In addition, Joseph said he never observed his wife,

Evangeline, behave as described by Esther during her testimony.

During cross-examination, Joseph denied that he responded, “What marks?” when Dr.

Gerlock asked him about the scars on Esther’s body. He also denied saying, “She falls a lot,” when

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questioned further. Joseph said that he did not recall meeting Dr. Gerlock. He also did not recall

talking with Susan Early, who previously testified that Joseph had refused to respond to questions

about the origin of Esther’s scars. Joseph explained that he quit answering all questions after talking

with Detective McCauley. Joseph denied telling Dr. Stiefel that Esther had never been to a hospital

or to see a doctor, because this was not a true statement. He also refuted the testimony of Gayland

Oaks, which stated that Joseph had said “it was necessary to spank [a child] through their rebellion

until they stop resisting and crying.” In addition, Joseph disclaimed making the following

statements: (1) God had created Esther to be a servant and he was training her to do so; (2) Esther

was clumsy and fell a lot; (3) it was Esther’s responsibility to care for the younger children; and (4)

he had never seen scars on Esther before. Joseph also claimed that the testimony of Arnold, Owens,

and Hensley, concerning food deliveries to the Combs family, was untrue.

Joseph admitted that the Defendants’ failure to legally adopt Esther prohibited her from

obtaining both a Social Security number and any type of job which required one. Joseph also

testified that he did not have Esther “taken” anywhere, when she left town in October 1997. Instead,

a man named Ricky Martin “took her somewhere and she ended up at Sonja Meadows’ [home].”

Joseph claimed that the record of what was said during the hearing, as reflected by Judge Ladd’s

order, was inaccurate. According to Joseph, his testimony on October 3, 1997, stated that “he wasn’t

sure where she was and [he] had reason to know or to believe that [he] knew where she was.” Next,

Joseph stated that he was asked only whether he had informed Esther about the subpoena, and then

he admitted that he was “fairly confident that she was [with Sonja Meadows]” at that time. He also

admitted arranging Esther’s transportation to South Carolina. He said he did this because he loved

her and she needed his help.

Also during cross-examination, Joseph was shown sixteen photos of the numerous scars

covering Esther’s body. For each photograph, the prosecutor asked whether he could give any

explanation as to the cause of the scar. Joseph claimed to have knowledge regarding only three

scars: a scar on Esther’s left arm was caused when she broke a plate; a scar on her right eyebrow was

caused when she was hit with a baseball bat while playing a game; and another on her forehead was

probably caused when she ran into the television or fell in gravel, he was not certain. As for the

scars on her shoulder, lower back, arms, hands, buttocks, and thighs, Joseph claimed to have no

knowledge of their presence or their origin. Regarding the photographs of places normally covered

by Esther’s clothing, Joseph testified that he could have no knowledge concerning these injuries

since he had never seen her unclothed.

Evangeline Combs did not testify. Following the testimony of Joseph Combs, both

Defendants rested their cases. As rebuttal proof, the State called Ricky Dale Martin, who testified

that he never transported Esther from Bristol to the residence of Sonja Meadows. During cross-

examination, he stated that Esther had never even been in his vehicle. Sonja Meadows then

corroborated Martin’s statement that he did not drive Esther to her house.

Jenny Smeltzer, the director of the 911 Dispatch Unit in Bristol, Tennessee, testified that the

911 system is capable of accurately recording the exact time a call is received and the precise time

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the 911 emergency personnel first arrive at the scene. In this case, the 911 dispatch records reflected

the following: a 911 call was received from EBC at 11:00:18 a.m.; a second call was received from

the same location at 11:04:28 a.m.; the first officer or medical technician arrived at the scene at

11:04:24 a.m.; and the ambulance arrived at 11:09:31. The ambulance arrived nine minutes and

thirteen seconds after the first 911 call was received by the 911 Dispatch Unit.

To rebut the testimony of defense witness Samuel Johnson (who claimed the Combs family

home was “normal”), the State presented the testimony of Franklin C. McCauley, Jr., a Special

Agent, Criminal Investigator with the Tennessee Bureau of Investigation. Agent McCauley said that

he had a telephone conversation with Samuel Johnson in connection with Esther’s case, during

which Johnson informed him that the Combs children were very quiet and did not intermingle with

the other kids. Moreover, Esther did not even intermingle with the other children in the family.

Johnson informed Agent McCauley that he never really spoke to the children or had the opportunity

to get close to them.

Prior to charging the jury, the trial court heard arguments by both parties concerning various

motions, including a motion to dismiss counts 3 through 6 on the ground that the charges were

barred by the statute of limitations. (Count 3 charged both Defendants with aggravated assault;

count 4 charged Evangeline with aggravated assault; and counts 5 and 6 charged Evangeline with

assault.) Following the hearing, the trial court dismissed counts 3 through 6 as barred by the statute

of limitations and instructed the jury concerning the remaining charges. After some deliberation, the

jury convicted Defendant Evangeline Combs of one count of especially aggravated kidnapping and

four counts of aggravated child abuse. The jury found her not guilty of one count of aggravated

assault. Defendant Joseph Combs was convicted of one count each of especially aggravated

kidnapping, aggravated assault, aggravated perjury, and aggravated rape, in addition to seven counts

of rape. Following a sentencing hearing, Evangeline Combs received a sentence of 65 years, and

Joseph Combs received an effective sentence of 114 years.

ANALYSIS

I. Voir Dire Proceedings

Both Defendants contend that the trial court committed errors during the voir dire

examination of two prospective jurors. Specifically, the Defendants argue that the examination of

Hunter Jones revealed that he would be unable to render an impartial verdict. Accordingly, the

Defendants assert that Jones should have been excused “for cause,” and the trial court abused its

discretion by refusing to do so. The Defendants also contend that the trial court limited the scope

of the Defendants’ questions with regard to whether a prospective juror, Misty Bishop, harbored

“suspicions of guilt.” The Defendants maintain that this limitation was improper because it critically

impaired their attorneys’ ability to uncover juror bias. To summarize, the Defendants argue that

these errors require reversal of the judgments in this case because they effectively denied the

Defendants their constitutional right to a fair and impartial jury. We disagree.

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The ultimate goal of voir dire is to see that jurors are competent, unbiased, and impartial, and

the decision of how to conduct voir dire of prospective jurors rests within the sound discretion of

the trial court. State v. Harris, 839 S.W.2d 54, 65 (Tenn. 1992); State v. Simon, 635 S.W.2d 498,

508 (Tenn. 1982). The trial judge’s actions in the conduct of voir dire will not be disturbed unless

there is an abuse of that discretion. State v. Irick, 762 S.W.2d 121, 125 (Tenn. 1988). The Sixth and

Fourteenth Amendments unquestionably guarantee a defendant the right to an impartial jury. See

Wainwright v. Witt, 469 U.S. 412, 105 S. Ct. 844, 83 L. Ed. 2d 841 (1985). The process of voir dire

and the defendant’s use of peremptory challenges is one means to achieve that end. Ross v.

Oklahoma, 487 U.S. 81, 88, 108 S. Ct. 2273, 2278, 101 L. Ed. 2d 80 (1988).

The trial court has wide discretion in ruling upon the qualifications of a juror. State v.

Kilburn, 782 S.W.2d 199, 203 (Tenn. Crim. App. 1989). When the trial court erroneously refuses

to excuse a juror for cause, the error is harmless unless the jury that heard the case was not fair and

impartial. State v. Thompson, 768 S.W.2d 239, 246 (Tenn. 1989). It is well-settled that a defendant

who disagrees with a trial court’s ruling on juror challenges “for cause” must, in order to preserve

the claim that the ruling deprived him of a fair trial, first utilize such peremptory challenges as he

has available to remove the jurors. State v. Howell, 868 S.W.2d 238, 248 (Tenn. 1993). The trial

court’s failure to properly exclude a juror for cause is grounds for reversal only if the defendant has

exhausted all of his peremptory challenges and an incompetent juror is then forced upon him. Ross,

487 U.S. at 89, 108 S. Ct. at 2279; State v. Jones, 789 S.W.2d 545, 549 (Tenn. 1990). In their briefs,

both Defendants claim that they had utilized all peremptory challenges prior to the voir dire

examinations of the jurors in issue. The record does not indicate otherwise, and the State does not

dispute their claim in its brief.

A. Failure to Excuse Hunter Jones for Cause

The Defendants contend that Hunter Jones should have been excused “for cause” because

the voir dire examination revealed that (1) Jones was “intricately related” to numerous prosecution

witnesses through professional and personal relationships, and (2) his employment in an

administrative position with Wellmont Health Systems gave him pre-trial exposure to information

about the trial. The Defendants maintain that both circumstances clearly affected his judgment,

thereby rendering him unable to deliver a fair and impartial verdict.

The record reflects that Hunter Jones, a registered nurse, was also employed as the Director

of Education and Development Services at Wellmont Health System. His duties included setting

up continuing education programs for nurses and other health care professionals. Jones stated that,

in this capacity, he had met or instructed various witnesses whose names were on the State’s

potential witness list. (Two of the witnesses known to Jones did, in fact, testify: Susan Early and

Elizabeth Owen Cribb.) During voir dire, the attorney for Joseph Combs asked Jones whether he

might consider the testimony of those witnesses whom he knew to be more credible than that of the

other witnesses. Jones responded, “No, not necessarily.” Jones claimed that he knew three of the

possible witnesses (Teresa Bott, Susan Early, and Elizabeth Cribb) “fairly well.” He had worked as

a direct supervisor over Bott for two and one-half years, but they did not socialize; Early was the

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social worker assigned to his wife’s case, and they had worked on various committees together; and

Cribb had served on a committee with him. Jones stated that he had not discussed the case with any

of these women and none of them knew he had been called as a potential juror. Jones said that he

had a “pretty close personal relationship” with Early, but he claimed that this would not cause him

to give her testimony additional weight. With regard to any pre-trial knowledge of the case, Jones

testified that the upcoming Combs trial was discussed during a management meeting: management

had instructed the department heads to remind their staff that the trial was pending, that some of the

staff would be witnesses, and that they were not to discuss the case with anyone.

At the conclusion of Jones’ voir dire examination, the attorneys for both Defendants moved

to dismiss Jones “for cause.” As justification for dismissal, the attorneys argued that Jones worked

for the same employer as some of the State’s witnesses and that he was tied too closely to them,

especially Early. The trial judge denied the motion, stating that Jones was “very specific that he

could not overstep any bounds.”

In their briefs, the Defendants cite Rule 24(b)(2) of Tennessee’s Rules of Criminal Procedure,

which provides that any party may challenge a prospective juror for cause if

The prospective juror’s exposure to potentially prejudicial information makes

the person unacceptable as a juror. Both the degree of exposure and the prospective

juror’s testimony as to his or her state of mind shall be considered in determining

acceptability. A prospective juror who states that he or she will be unable to

overcome preconceptions shall be subject to challenge for cause no matter how slight

the exposure. If the prospective juror has seen or heard and remembers information

that will be developed in the course of trial, or that may be inadmissible but is not so

prejudicial as to create a substantial risk that his or her judgment will be affected, the

prospective juror’s acceptability shall depend on whether the testimony as to

impartiality is believed. If the prospective juror admits to having formed an opinion,

he or she shall be subject to challenge for cause unless the examination shows

unequivocally that the prospective juror can be impartial.

(Emphasis added.)

With regard to Jones’ pre-trial knowledge of information relating to the Combs case, we find

the degree of exposure minimal. The defense attorneys’ questions on this matter were cursory and

the details regarding his knowledge remained essentially undeveloped. The record only shows that

a management meeting was held, which resulted in an admonition to the staff to refrain from

discussing the case. Jones was not asked precisely what he heard or from whom he heard it.

According to Rule 24(b)(2), “the prospective juror’s testimony as to his or her state of mind

shall be considered in determining acceptability.” The trial judge found that Jones was “very specific

that he could not overstep any bounds.” We have discovered nothing in the record which casts doubt

on the trial court’s conclusion. The record is also devoid of any indication that Jones’ personal

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and/or professional affiliations with the State’s witnesses would affect his judgment so that he would

be unable to render a fair and impartial verdict in this case. The Defendants argue that the medical

personnel of Wellmont Health Systems comprised a significant portion of the State’s witnesses.

That may be so. However, Jones knew only Early and Cribb, and the testimony of neither witness

was conclusive on any issue at trial. Both testified as to the appearance of scars on Esther’s body,

evidence which was substantiated by photographs and the testimony of numerous other witnesses.

In addition, Early testified that the Defendants were not forthcoming with information regarding the

origin of Esther’s scars, but that Evangeline subsequently informed Early that Esther “fell a lot and

was clumsy.” Again, this testimony was similar in content to that of other witnesses.

B. Limitations on the Scope of Voir Dire

The Defendants also contend that the trial court placed limitations on the scope of their

questions during voir dire, which prevented them from achieving the well-established goals of this

process and also rendered their trial fundamentally unfair. We reject both arguments.

According to the record, Misty Bishop revealed during voir dire that she had been exposed

to some pre-trial publicity via prior conversations with people at work. She claimed that she did not

recall hearing anything about the case on the news and that she had not read the newspaper, but

acknowledged that various co-workers had expressed their opinions to her regarding the Defendants’

guilt. The trial judge asked Bishop whether she had formed an opinion herself. She replied, “I don’t

know that I have enough information. They just told me what they had heard, so I really don’t

know.” The trial judge followed with a pointed question: “[A]s a result of talking with these other

people, these people you work with or anywhere else of any information, did you, yourself, form or

express any opinion as to the innocence or guilt of either Mr. Joseph Combs or Mrs. Evangeline

Combs?” Bishop replied that what she had heard from her co-workers sounded “bad,” but she had

not “heard from any reputable forum other than this person at work.” Consequently, she could not

say that she had “actually formed a strong opinion about it because [she had] not heard any real facts

about it.” Following a few more brief questions, Bishop concluded that she had not “heard enough

to really form an opinion.” The trial judge explained to Bishop that one of his duties was to ensure

“an absolutely even playing field,” and then he asked her the following question: “[I]f you were

selected as a juror and I instructed you that you could not consider any outside information, T.V.,

comments of friends or family, that type of thing . . . . [c]ould you, without doubt, follow that

instruction . . . and not consider anything except the evidence that comes in at trial?” Bishop replied,

“Yes.”

Next, Joseph Combs’ attorney questioned Bishop whether she had a “suspicion” that the

Defendants were guilty. Again, Bishop stated that she did not have enough information to form an

opinion. The attorney then asked whether some degree of evidence was required “to do away with

what [the co-worker] told [her]” and whether the Defendants “would have to prove something to

[her].” Bishop responded that she would need evidence “to see both sides.” Thereafter, the attorney

representing Evangeline Combs asked Bishop similar questions, including whether the information

she previously received had raised a suspicion of guilt in her mind. Bishop replied affirmatively:

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a suspicion of guilt had been raised. The attorney then asked whether it was fair to state that, since

she had this “suspicion,” she was “going to need to hear something from [the Defendants] to prove

they’re innocent.” Bishop replied that this was “probably a fair statement.”

The following colloquy then transpired between Bishop and the trial judge:

[THE COURT]: All right. Let me ask you this, Ms. Bishop.

[BISHOP]: Yes, sir.

[THE COURT]: A defendant, in any criminal case, is not required to prove anything.

[BISHOP]: Yes.

[THE COURT]: They have no burden in the case. The burden is always upon the State to

prove guilt beyond a reasonable doubt. And this burden of the State, it goes

to each and every element required to make up the offense and a juror must

grant the presumption of innocence to any defendant on trial. Now, can you

do that?

[BISHOP]: I believe so.

[THE COURT]: All right. Now, the reason I asked you that you had indicated you might not

have known that standard, but you say you believe so. Is there any question

about it? If there is, just --

[BISHOP]: I don’t--I don’t think that I would have a problem doing that. Like I said I’ve

not heard any information from a reputable source to tell me the details about

exactly what happened or exactly what went on and I heard this from a co-

worker and I’ve not heard it from the news . . . . As far as believing they’re

innocent until proven guilty, I believe I can--I could say that.

[THE COURT]: Could you tell me you would require the State to do that? To prove the guilt

beyond a reasonable doubt.

[BISHOP]: Right.

[THE COURT]: If they failed to do so, would you acquit the defendants?

[BISHOP]: Yes.

Immediately thereafter, the attorneys for both sides argued that Bishop should be excused

“for cause,” based upon her admission that she had a “suspicion of guilt” which must be “overcome

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by evidence.” In denying the attorneys’ request, the trial judge inferred that Bishop’s equivocal

answers on the issue of suspicion were a result of the way the attorneys’ questions were phrased.

He then made the following comment:

Now, the question that you feel any suspicion, well, I’m sure, probably, I--I think any

damn fool sitting on a jury is going to feel some suspicion. The fact that somebody’s

charged. But the point is how is this going to hurt them, in their deliberations, or

them to function or do their duty.

Following a review of the record, it appears to this Court that Bishop was clearly reluctant

to form an opinion without sufficient information and that the equivocal nature of Bishop’s

responses to questions regarding her own “suspicions of guilt” may have been begged by the

questions put to her. Questions designed or framed to elicit answers which suggest impartiality are

disapproved of by the Advisory Commission. See Tenn. R. Crim. P. 24, Advisory Commission

Comments. In any event, the critical issue is not whether or not a prospective juror harbors a

scintilla of suspicion, but “whether the juror’s views would ‘prevent or substantially impair the

performance of his [or her] duties as a juror in accordance with his [or her] oath.’” Wainwright v.

Witt, 469 U.S. 412, 424, 105 S. Ct. 844, 852, 83 L. Ed. 2d 841 (1985) (this standard does not require

that a juror’s bias be proved with “unmistakable clarity”). The record indicates that after the issue

of “suspicion” was raised, the trial judge informed Bishop of the legal standards involved and the

presumption of innocence due a defendant. The trial judge then questioned Bishop further and,

thereafter, was satisfied that Bishop would be capable of fulfilling the role of an impartial juror in

this case. The trial court’s determinations concerning the fitness and credibility of a potential juror

are accorded great deference. Id. at 426, 105 S.Ct. at 853 (“deference must be paid to the trial judge

who sees and hears the jurors”); State v. Keen, 31 S.W.3d 196, 228 (Tenn. 2000) (because the trial

court has the opportunity to observe the demeanor of prospective jurors and, thus, evaluate their

credibility, its findings are accorded great deference and shall not be set aside unless clearly

erroneous). We find no abuse of discretion by the trial court in this matter.

With regard to the Defendants’ argument that the trial judge improperly limited the scope of

their questions during voir dire, we cannot find any statement by the trial judge in the record which

could be construed to affirmatively restrict or “limit the scope” of the attorneys’ questions.

Moreover, neither Defendant has cited any specific circumstance where the trial judge’s “ruling”

unduly circumscribed their ability to uncover bias. As for the ultimate goal of voir dire--to impanel

jurors who are competent, unbiased, and impartial--we do not find it unsatisfied here.

In summary, we conclude that the trial court did not abuse its discretion in refusing to excuse

either Hunter Jones or Misty Bishop for cause. “Jurors need not be totally ignorant of the facts of

the case on which they sit, and may sit on a case even if they have formed an opinion on the merits

of the case, if they are able to set aside that opinion and render a verdict based on the evidence

presented in court.” State v. Sammons, 656 S.W.2d 862, 869 (Tenn. Crim. App. 1982); see also

Murphy v. Florida, 421 S. Ct. 794, 799-800, 95 S. Ct. 2031, 2035-36, 44 L. Ed. 2d 589 (1975); Irvin

v. Dowd, 366 U.S. 717, 722-23, 81 S. Ct. 1639, 1642-43, 6 L. Ed. 2d 751 (1961); Adams v. State,

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563 S.W.2d 804, 807 (Tenn. 1978). The determination of impartiality is a matter within the

discretion of the trial court, Sammons, 656 S.W.2d at 869, which may be overturned only in cases

of “manifest error.” Patton v. Yount, 467 U.S. 1025, 1031, 104 S. Ct. 2885, 2889, 81 L. Ed. 2d 847

(1984). Since we are unpersuaded that neither Bishop nor Jones was incapable of delivering a fair

and impartial verdict, we also find no reversible error. The Defendants are not entitled to relief on

this issue.

II. Amendment of the Presentment

The Defendants contend that the trial court erred by allowing a non-consensual amendment

to count 1 of the presentment, charging both Defendants with especially aggravated kidnapping,

because the amendment alleged a different offense than that in the original presentment.

Specifically, the Defendants assert that the amendment changed certain essential elements of the

offense and also removed defenses which were theretofore available to them. As a result, they argue

that their substantial rights were affected, in direct contravention of Rule 7(b) of Tennessee’s Rules

of Criminal Procedure, and that the State’s failure to seek grand jury review of the “material

variance” created by said amendment also violated their constitutional rights. We disagree.

According to the record, count 1 of the original presentment charged both Defendants with

committing the offense of especially aggravated kidnapping, Tenn. Code Ann. § 39-13-305, between

November 16, 1989 and October 3, 1997. However, on the date that the offense allegedly

commenced, November 16, 1989, the crime of especially aggravated kidnapping did not yet exist.

Instead, the offense in issue would have been defined in the applicable statute as aggravated

kidnapping, which provided as follows:

A person is guilty of aggravated kidnapping who unlawfully removes or confines

another:

(1) To hold for ransom or reward, or as a shield or hostage;

(2) To facilitate commission of any felony or flight thereafter;

(3) To inflict serious bodily injury on or to terrorize the victim or another;

(4) To interfere with the performance of any governmental function; or

(5) While armed with a deadly weapon.

Tenn. Code Ann. § 39-13-301(a) (Supp. 1989). Subsection (b) of that statute designated aggravated

kidnapping as a Class A felony. Effective April 30, 1990, the statute defining aggravated kidnapping

was amended and the separate offense of especially aggravated kidnapping was created, which is

currently defined as follows:

Especially aggravated kidnapping is false imprisonment, as defined in § 39-13-302

[i.e., the knowing removal or confinement of another unlawfully so as to interfere

substantially with the other’s liberty]:

(1) Accomplished with a deadly weapon or by display of any article used or

fashioned to lead the victim to reasonably believe it to be a deadly weapon;

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(2) Where the victim was under the age of thirteen (13) at the time of the removal or

confinement;

(3) Committed to hold the victim for ransom or reward, or as a shield or hostage; or

(4) Where the victim suffers serious bodily injury.

Tenn. Code Ann. § 39-13-305(a) (1997). Subsection (b)(1) of this statute designates especially

aggravated kidnapping as a Class A felony. Aggravated kidnapping is now a Class B felony. See

Tenn. Code Ann. § 39-13-304(b)(1) (1997).

During a motions hearing on February 3, 2000, the trial court heard arguments from the

Defendants and the State concerning the fact that the time of the offense alleged in count 1

overlapped two different statutes. The State proposed to eliminate the problem in the following

manner: (1) amend the offense commencement date in the presentment from November 16, 1989,

to April 30, 1990, which would move the entire course of conduct of the continuing offense into the

purview of the current statute; (2) delete the language “to terrorize the victim,” which did not exist

in the current statute, (3) delete the reference to the victim’s age at the time of the offense, an

element under the current statute only, and (4) change the cite reference in the presentment to reflect

the current statute code number: Tenn. Code Ann. § 39-13-305. At the conclusion of the hearing,

the trial court permitted the State to amend count 1, over the objection of both Defendants. The trial

court’s order, filed February 7, 2000, stated its findings in this matter as follows: the statutory

language in the presentment and the two statutes involved is concurrent, in that they all describe a

Class A felony; the amendment did not enlarge the time frame of the offense; the amendment deleted

one aggravating circumstance, i.e., the age of the victim, from the presentment; and the language in

the original presentment clearly described the offense of especially aggravated kidnapping.

Accordingly, the court found that “no substantial right of the defendants would be prejudiced” by

the amendment, citing Tenn. R. Crim. P. 7(b).

Rule 7(b) of Tennessee’s Rules of Criminal Procedure, entitled “Amendments of Indictments,

Presentments and Informations,” provides the following:

An indictment, presentment or information may be amended in all cases with the

consent of the defendant. If no additional or different offense is thereby charged and

no substantial rights of the defendant are thereby prejudiced, the court may permit an

amendment without the defendant’s consent before jeopardy attaches.

The amendment of count 1 in this case did not effectively charge the Defendants with an

additional or different offense than that in the original presentment. The deletion of the phrase

concerning “terrorization” of the victim had no substantive effect on the charge. As shown above,

the former statute contained the language “[t]o inflict serious bodily injury on or to terrorize the

victim or another.” Tenn. Code Ann. § 39-13-301 (Supp. 1989). Clearly, this element may be

proven by terrorization of the victim or serious bodily injury, because the two possible circumstances

are connected by the disjunctive term “or.” Serious bodily injury is an element of both the former

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and the latter statutes. Hence, deletion of the phrase concerning terrorization is of no consequence

in this particular case, since serious bodily injury was also alleged in the original presentment.

The Defendants also argue that changing the date of the commencement of the offense in

count 1 from November 16, 1989 to April 30, 1990 removed certain defenses which would have

been available to them under the former statute. However, their argument is based on an assertion

that they can prove they did not terrorize the victim, and we have concluded that whether they can

prove this or not is immaterial, for the reasons given above.

The Defendants also contend that the State’s deletion of the reference to the victim’s age at

the time of the offense prejudiced their case by making unavailable a previously viable defense.

They assert that the confinement of Esther was not unlawful due to their status as “foster parents”

while she was under the age of thirteen. In this argument, Defendants rely on the statutory definition

of “unlawful,” which states the following:

“Unlawful” means, with respect to removal or confinement, one which is

accomplished by force, threat or fraud, or, in the case of a person who is under the

age of thirteen (13) or incompetent, accomplished without the consent of a parent,

guardian or other person responsible for the general supervision of the minor’s or

incompetent’s welfare.

Tenn. Code Ann. § 39-13-301(1997) (this definition is identical in all material aspects to the

definition contained in the former statute. See Tenn. Code Ann. § 39-13-301(b) (1989)).

Apparently, the Defendants believe that the removal or confinement of Esther was, arguably, not

“unlawful” because it was clearly accomplished with their consent, as “other person[s] responsible

for the general supervision of [her] welfare.” Id. Once again, we note the presence of the disjunctive

term “or.” A plain reading of the statute reveals that removal or confinement by force, threat or fraud

remains unlawful, even if accomplished with the consent of a parent, guardian or other person

entrusted with the minor’s care. Moreover, we further note that Esther turned thirteen years of age

on November 16, 1990. Amending the presentment to read April 30, 1990, rather than November

16, 1989, merely reduces the victim’s alleged period of confinement while under the age of thirteen

from one year to approximately six and one-half months, a reduction of five months and two weeks.

Any “defense” arguably available under the old statute would remain not only viable but necessary

under the amended presentment, since the presentment as amended only reduced the period of time

Esther was confined while under thirteen years of age--it did not eliminate it. Nor did it change the

fact that, after Esther turned thirteen, the alleged confinement continued for more than six years and

ten months. See State v. Legg, 9 S.W.3d 111, 117 (Tenn. 1999) (“an act of removal or confinement

does not end merely upon the initial restraint, and a defendant continues to commit the crime at every

moment the victim’s liberty is taken”). In any event, reducing the period of time in the presentment

for the continuing offense of especially aggravated kidnapping did not charge any additional or

different offense. Moreover, no substantial rights of either Defendant were prejudiced. Thus, Rule

7(b) permits the court to allow an amendment without a defendant’s consent before jeopardy

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attaches. Since jeopardy had not attached at the time of the amendment in this case, we find no error.

See Tenn. R. Crim. P. 7(b).

We are also unpersuaded that the State’s failure to seek grand jury review prior to its

amendment of the presentment violated the Defendants’ constitutional rights. Specifically, the

Defendants argue that the amendment infringed upon their right to be indicted by a grand jury under

Article I, section 14 of the Tennessee Constitution, because the crime for which they were convicted

in count 1 constitutes a “material variance” from the offense charged in the presentment. For the

reasons stated above, we have already determined that changing the commencement date of the

offense, along with deleting the reference to the age of the victim and the language involving

terrorization, did not charge an additional or different offense. Analogously, the amendment also

did not constitute a material variance, and we find no constitutional violation. See State v. Kennedy,

10 S.W.3d 280, 284 (Tenn. Crim. App. 1999) (where the date on an indictment was immaterial, and

the indictment as amended did not charge the defendant with a new or additional crime, Article I,

section 14 concerns are not implicated).

Under both the United States and Tennessee Constitutions, an indictment must inform the

accused of “the nature and cause of the accusation.” U.S. Const. amend. VI; see Tenn. Const. art.

I, § 9. In Tennessee, its form must also satisfy the requirements of Tennessee Code Annotated

section 40-13-202, which provides that an indictment

[M]ust state the facts constituting the offense in ordinary and concise language,

without prolixity or repetition, in such a manner as to enable a person of common

understanding to know what is intended, and with that degree of certainty which will

enable the court, on conviction, to pronounce the proper judgment.

The indictment satisfies the constitutional guarantees of notice to the accused “if it provides

sufficient information (1) to enable the accused to know the accusation to which answer is required,

(2) to furnish the court an adequate basis for entry of a proper judgment, and (3) to protect the

accused from double jeopardy.” State v. Hill, 954 S.W.2d 725, 727 (Tenn. 1997) (citations omitted).

In summation, we believe that the allegations in the unamended presentment were quite

sufficient to advise the Defendants of the offense for which they had to defend and for which they

were ultimately convicted. The amendment did not mislead either Defendant as to the charge in

count 1; nor did it destroy any potential defenses. The Defendants are not entitled to relief on this

issue.

III. Bill of Particulars

The Defendants contend that the State failed to properly comply with their requests for a bill

of particulars regarding the charge of especially aggravated kidnapping. Specifically, the Defendants

argue that the State failed to allege in the presentment what specific acts caused the confinement,

when the acts occurred, what specific injuries constituted “serious bodily injury,” and what weapon

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was used to inflict such injury. Accordingly, they assert that the trial court’s denial of their request

for a bill of particulars was error because this information was necessary to diligently prepare a

defense, avoid prejudicial surprise at trial, and preserve a plea of double jeopardy. In response, the

State contends that it gave the Defendants all of the information in its possession concerning the

above circumstances, in accordance with Rules 3(c) and 16 of Tennessee’s Rules of Criminal

Procedure, and, therefore, no error exists. We agree with the State.

The record reflects that the Defendants filed separate motions for a bill of particulars on

February 22, 1999, both requesting various facts and information regarding all of the counts against

each Defendant. On March 24, 1999, the State filed an answer stating that each offense in the

presentment occurred at the facilities at Emmanuel Baptist Church, the time of day of each offense

in the presentment was not known, and the dates of the offenses were contained in the presentment.

With regard to Defendant Joseph Combs’s request for “the manner and means that the State relies

upon to show the guilt of the Defendant” and the names of “any witnesses to each specific count of

the indictment,” the State responded that this data is “beyond the scope and purpose of a bill of

particulars.”

At a subsequent hearing on May 10, 1999, the Defendants requested additional information

concerning the nature of the injuries and which injuries were associated with what specific charges.

Pursuant to an order of the trial court, the State

This text is long and has been trimmed here. Open the source document for the complete record.