State of Tennesse v. Jonathan Mitchell Grimes

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

February 3, 2015 Session Heard at Memphis1

STATE OF TENNESSEE v. JONATHAN MITCHELL GRIMES

Appeal from the Circuit Court for Gibson County

No. H8987 Clayburn L. Peeples, Judge

No. W2014-00786-CCA-R3-CD - Filed June 26, 2015

______________________

The defendant, Jonathan Mitchell Grimes, was indicted by the Gibson County Grand Jury

in count 1 for rape of a child and in count 2 for aggravated sexual battery of a child under

the age of thirteen. At trial, the State dismissed count 2. The jury subsequently

convicted the defendant in count 1 of the lesser included offense of aggravated sexual

battery, and he was sentenced to ten years at one hundred percent release eligibility. On

appeal, the defendant argues: (1) the evidence is insufficient to sustain his conviction; (2)

the trial court erred in allowing evidence of uncharged crimes, wrongs, or acts under Rule

403 and Rule 404(b) of the Tennessee Rules of Evidence; (3) the trial court erred in

allowing the victim to testify after speaking with prosecutors during a break at trial; and

(4) the State‟s bill of particulars did not provide adequate notice to him of the time frame

for the charged offense, and there was a fatal variance between the bill of particulars and

the evidence presented at trial. Upon review, we affirm the judgment of conviction,

vacate the judgment forms in counts 1 and 2, and remand the case for entry of correct

judgment forms.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed;

Case Remanded

JOHN EVERETT WILLIAMS J., delivered the opinion of the court, in which ROGER A.

PAGE, J., joined. CAMILLE R. MCMULLEN, J., filed a separate opinion concurring in part

and dissenting in part.

Beau E. Pemberton, Dresden, Tennessee, for the defendant, Jonathan Mitchell Grimes.

Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant

Attorney General; Garry G. Brown, District Attorney General; and Edward L. Hardister

1

Oral Argument was heard in this case on February 3, 2015, at the Cecil C. Humphreys School of

Law at the University of Memphis in Memphis, Tennessee, as a part of the S.C.A.L.E.S (Supreme Court

Advancing Legal Education for Students) project.

and Jason Scott, Assistant District Attorneys General, for the Appellee, State of

Tennessee.

OPINION

Trial. This case concerns allegations by the victim that the defendant, her

stepfather, molested her. The defendant was subsequently indicted for rape of a child and

aggravated sexual battery.

The thirteen-year-old victim testified that when she was eight years old, she

moved to Medina, Tennessee, where she lived with her mother, brother, and grandmother

for approximately a year and a half. She remembered having her ninth birthday while

they lived in Medina. The victim said that her mother and the defendant began dating

some time during that time period and that the defendant moved in with her family

shortly after her family moved to Medina.

The victim recalled an incident during the time period that they lived in Medina

when the defendant was tickling her and her brother and the defendant touched her

vagina on the outside of her underwear. She stated that she was wearing a skirt at the

time of this incident. When this incident occurred, her mother was standing at the door,

and her brother was being tickled as well. The victim did not immediately tell anyone

about this incident. In addition, the victim said that each night the defendant would tuck

her into bed, he would touch her “private spot.” On one particular night, the defendant

placed his hand under her clothes and penetrated her vagina with his finger. When this

occurred, she rolled over, and the defendant stopped touching her. She said the defendant

penetrated her vagina with his finger on only one occasion. The victim told her brother

about these incidents of abuse, and when the defendant deployed to Iraq, she told her

mother that the defendant had been touching her inappropriately. When the victim‟s

mother confronted the defendant about the victim‟s accusations, the defendant denied any

abuse. The victim said her mother never contacted the police about the defendant‟s abuse

of her.

On a different occasion, the victim awoke to discover that she was on top of the

defendant and that her pants had been pulled down. When she pulled her pants up, the

defendant asked her what was wrong, and she told him she was scared of monsters and

returned to her room. On a different occasion, the defendant told her that he wanted to

tickle her naked, so he took her to the room she shared with brother, placed her on the top

bunk, removed her clothing, and tickled her naked after blocking the door with his foot so

that her brother could not get into the room. She explained that the defendant was able to

tickle her on the bed and still have his foot blocking the door because the room was very

small. During this incident, the victim screamed for her brother, told the defendant to

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stop, and covered her body with the sheets as her brother tried to get in the room. The

defendant finally stopped touching her and left the room. When her brother gained entry

into the room, she told him what the defendant had done to her moments before. The

victim said that after she told her brother about the defendant‟s abuse, her brother

disclosed this abuse to a school counselor. The victim later told this counselor that she

had been abused by the defendant.

The victim stated that when the defendant returned home from military

deployment, they moved to a house in Milan, Tennessee, where the victim lived from age

nine to age ten. She stated that there were other incidents involving the defendant that

occurred after the family moved to Milan. On one occasion, when her mother was at

work, the defendant tried to make her try on old clothing and told her that she had to

disrobe completely. When she refused, he spanked her. She then told the defendant,

“I‟m going to get you back.” She explained that this meant she was “going to tell on

him.” However, she acknowledged that by the time her family moved to Milan, she had

already told her mother about the defendant‟s abuse of her in Medina, even though her

mother “didn‟t do anything.” On another occasion, when the victim was nine years old

and her mother was at work, the defendant helped her get conditioner out of her hair and

“stroked parts of [her] body.” She said, “[the defendant] was just taking the sponge and

was scrubbing me on my stomach and then he went down to my private part, of course,

and he said you need to wash it.” The victim said she told him to get away and was

unsure whether she told her mother about that incident.

On still another occasion, when they were playing “cops and robbers,” the

defendant tied the victim‟s hands to the bedpost and pulled down her pants against her

will and then walked away. The victim stated that the defendant did not touch her

inappropriately during the incident. Her brother, who had been trying to get into the

defendant‟s bedroom, was able to enter the room and free her. The victim also recalled

an incident when the defendant bent over to help her with her homework and placed his

elbow on her pants so that his elbow was in contact with her vagina. She said she pushed

him away because she did not “want anything touching [her] there[.]” In addition, the

victim recalled an incident, although she did not know her age at the time, when the

defendant instructed her to masturbate in the shower, and she complied. The victim

stated she watched movies containing sexual content with the defendant and her family.

She denied watching these movies with the defendant alone.

The victim stated that she had never been molested by any adult other than the

defendant. She acknowledged that although she threatened to get the defendant back

when he spanked her, her brother was the one who disclosed the defendant‟s abuse of her

to the school counselor. She explained that when she made that statement about getting

the defendant back, she meant that she was going to tell someone about his abuse of her

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with the hope that they could stop it. The victim asserted that she had told the truth about

what the defendant had done to her. She denied confusing the defendant with someone

else who had touched her inappropriately.

When the victim was asked if she remembered having hallucinations about bugs

being on her in the hospital even though there were no bugs, she stated, “Really, I don‟t

even know what was going on then.” She stated that her babysitter did not show her

pornographic movies; instead, she remembered “picking [the disks] up and thinking it

was a movie and putting them in.” She did not recall going to Pathways in 2006 for

treatment for anxiety after the pornographic movies. The victim remembered “going to

the doctors about the bugs and . . . seeing the movies, but that‟s all.” She acknowledged

that she did not inform the forensic interviewer or the district attorney about the incident

in which the defendant tied her to a bed. However, she asserted that she told the forensic

interviewer she could not remember everything that happened and was going to tell her

about the incidents she remembered. The victim acknowledged telling the defendant on

several occasions that she was going to get him back. She said she began to dislike the

defendant when he began disciplining her and her brother and spanking them. She added,

“I started not feeling comfortable with all that he‟d been doing, touching me and hitting

us and stuff, so I just started not liking him.”

The victim‟s twelve-year old brother testified that he recalled an incident in

Medina when the defendant and his sister were in a bedroom and he could not get in the

bedroom. He stated that the victim was yelling his name, and he could not get inside the

room because the defendant had braced his foot on the door. He said that when the

defendant left the room, he ran inside, and the victim was okay. The victim‟s brother

also recalled an incident in Milan when the defendant and the victim were alone in a

locked room. He explained that that they were playing hide and seek. The victim had

gone into another room to hide, and he heard her start yelling. Because he was unable to

open the door, he hid, and when the defendant left the room, he went inside. He said the

victim “was tied up and her pants were down.” He said that although her pants were

down, her panties were not down. He stated that “[the victim‟s] eyes were tied with some

kind of cloth and her arms were tied with a belt.” He also said “[h]er feet were tied with

a belt.”

Heather Gordon, a Child Protective Services Investigator with the Department of

Children‟s Services in Gibson County, investigated the case involving the victim. She

contacted law enforcement, who did an initial interview of the victim. Because the

victim disclosed that she had been sexually abused in the initial interview, Gordon set up

a forensic interview with the victim.

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The defendant testified that he never sexually abused or inappropriately touched

the victim in any way. He met the victim‟s mother in spring 2007, and they married in

February 2008. The defendant said he was deployed to Iraq from the middle of May

2007 to February 2008, when he returned home for two weeks and married the victim‟s

mother before returning to Iraq until June 2008.

During his deployment, the defendant called home, and the victim‟s mother, who

by that time was his wife, informed him that the victim had accused him of “touching her

inappropriately.” He replied, “That‟s not possible. I‟ve been in Iraq since right after

Mother‟s Day.” The defendant said that as he and the victim‟s mother asked the victim

questions about her abuser, the victim disclosed that the person who touched her

inappropriately drove a red car. The defendant said he had always driven a white truck.

The victim‟s mother acknowledged that she had an ex-boyfriend who drove a red car, and

by the end of the conversation, the defendant and the victim‟s mother believed that the

ex-boyfriend was responsible for the victim‟s abuse. The defendant acknowledged that

neither he nor the victim‟s mother ever contacted the police about pressing charges

against the person they believed was responsible for molesting the victim.

The defendant stated that he returned from Iraq in June 2008 and moved into the

family‟s trailer in Medina. He lived with the family in Medina from June 2008 to

November 2008, when the defendant and the family moved into a house in Milan. At the

end of 2008, Niva Abiles moved in with the family because she was having a difficult

time financially.

The defendant said that when he began dating the victim‟s mother, he learned that

the victim “had been shown pornographic images by her babysitter and had been treated

at Pathways for anxiety because of the pornography.” He also learned that the victim in

2006 “had a hallucinogenic episode where she was treated at the McKenzie Hospital and

during this episode she had stripped all of her clothes off and was looking for bugs that

were on her[,] and the nurse . . . state[d] in her report that there were no bugs

[any]where.”

The defendant stated that he could not recall the incident described by the victim

that allegedly occurred in Medina when she awoke on top of him with her pants down.

He stated, “I‟m a heavy sleeper so I do not recall her ever being on top of me.” The

defendant said he would sometimes return home from work at 3:00 a.m. and find the

victim in his and his wife‟s bed, and he would move the victim to her own bed. The

defendant acknowledged that he bathed the victim, although he denied touching her

inappropriately while doing so. He said he bathed her because he had gotten a phone call

from his wife, the victim‟s mother, who told him that the victim had been smelling bad

and that he needed to show her how to clean herself. He stated that the victim‟s mother

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was unable to teach the victim how to bathe because she was at work. The defendant

denied touching the victim inappropriately or sexually while he was teaching her how to

bathe. He admitted that he showed the victim how to bathe after the victim accused him

of molesting her.

The defendant acknowledged that he frequently played a tickling game with the

victim and her brother in which he would grab them by their ankles, hold them up, and

tickle their stomach or under their arms. Although he said the victim liked the game at

first, she “would say her pants were falling down and she was uncomfortable and I would

let her go.” The defendant said, “[N]ormally that would end that play episode, „cause . . .

it‟s kind of hard to continue when you‟ve already been accused [of touching her

inappropriately] and you just don‟t want to even be close to it.” He acknowledged that he

might have accidentally touched the victim‟s vagina while he was tickling her, but he

denied tickling her for “sexual gratification or arousal.” He admitted that he continued to

tickle the victim after the victim accused him of sexually abusing her.

The defendant asserted that he would not have been able to brace his foot against

the door of the victim‟s bedroom in Medina if he was standing by her bed. He

acknowledged that he disciplined the victim and her brother when he returned from his

deployment in Iraq by yelling at them, grounding them, taking away their video games,

and spanking them. He stated that it did not make him feel uncomfortable to discipline

the victim after she had made allegations of sexual abuse against him. The defendant

denied sexually abusing the victim while spanking her.

The defendant said that the victim did not like being disciplined. He recalled an

incident when his friend Theodore Smith was at his house playing video games and he

told the victim to clean up her clothes and toys, and the victim refused. When the victim

became defiant, he spanked her on her bottom, and the victim told him, “I‟ll get you back

for this. I‟ll get you back.” The defendant said that approximately one week after the

victim made this statement, he was arrested for abusing the victim. He said he believed

the victim testified dishonestly about the abuse because she did not like him. He also

asserted that the victim‟s brother testified falsely because he did not like him either. The

defendant denied watching pornography with the victim. He also denied telling the

victim to masturbate in the shower. He claimed that the victim‟s mother or the victim‟s

grandmother usually tucked the children into bed. The defendant stated that although he

recalled putting handcuffs on the victim and her brother while playing “cops and

robbers,” he denied molesting the victim during this game.

Theodore Smith, who had served in the military with the defendant, testified that

he had been friends with the defendant for the last four years. Smith said he was present

on one occasion when the defendant disciplined the victim by spanking her with an open

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palm, and the victim told the defendant, “I‟m going to get you back for that.” He

witnessed the defendant‟s arrest for abusing the victim approximately one week later.

Matthew Schwarz testified that he had known the defendant for seven years, had

worked with him, and had shared an apartment and house with him. He opined that the

defendant had been honest about his involvement with the victim.

Neva Abiles testified that she lived with the defendant, his wife, and his wife‟s

children from December 2009 to March 2010, when the defendant was arrested. During

this time period, she did not observe the defendant physically disciplining the victim,

although she saw him take away games and send the victim to her room. Abiles stated

that the victim did not react well to being disciplined.

ANALYSIS

I. Sufficiency of the Evidence. The defendant argues that the evidence is

insufficient to sustain his aggravated sexual battery conviction. He claims that the

victim‟s testimony, without other proof, is insufficient to establish the elements of the

offense beyond a reasonable doubt and that the evidence presented at trial failed to show

that his conduct was for the purpose of sexual arousal or gratification. The defendant

also claims the proof was insufficient because “[t]he record . . . does not indicate which

incident or incidents of conduct the State relies on to support [his] conviction.” Because

the State properly identified its election offense and because the proof established the

elements of aggravated sexual battery beyond a reasonable doubt, the defendant is not

entitled to relief.

When considering the sufficiency of the evidence on appeal, the State is entitled to

the strongest legitimate view of the evidence and all reasonable inferences which may be

drawn from that evidence. State v. Davis, 354 S.W.3d 718, 729 (Tenn. 2011) (citing

State v. Majors, 318 S.W.3d 850, 857 (Tenn. 2010)). When a defendant challenges the

sufficiency of the evidence, the standard of review applied by this court is “whether, after

reviewing the evidence in the light most favorable to the prosecution, any rational trier of

fact could have found the essential elements of the crime beyond a reasonable doubt.”

Jackson v. Virginia, 443 U.S. 307, 319 (1979). Similarly, Rule 13(e) of the Tennessee

Rules of Appellate Procedure states, “Findings of guilt in criminal actions whether by the

trial court or jury shall be set aside if the evidence is insufficient to support the finding by

the trier of fact of guilt beyond a reasonable doubt.”

“Because a verdict of guilt removes the presumption of innocence and raises a

presumption of guilt, the criminal defendant bears the burden on appeal of showing that

the evidence was legally insufficient to sustain a guilty verdict.” State v. Hanson, 279

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S.W.3d 265, 275 (Tenn. 2009). Guilt may be found beyond a reasonable doubt where

there is direct evidence, circumstantial evidence, or a combination of the two. State v.

Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990) (citing State v. Brown, 551

S.W.2d 329, 331 (Tenn. 1977); Farmer v. State, 343 S.W.2d 895, 897 (Tenn. 1961)).

The standard of review for sufficiency of the evidence “„is the same whether the

conviction is based upon direct or circumstantial evidence.‟” State v. Dorantes, 331

S.W.3d 370, 379 (Tenn. 2011) (quoting Hanson, 279 S.W.3d at 275). The jury as the

trier of fact must evaluate the credibility of the witnesses, determine the weight given to

witnesses‟ testimony, and reconcile all conflicts in the evidence. State v. Campbell, 245

S.W.3d 331, 335 (Tenn. 2008) (citing Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim.

App. 1978)). Moreover, the jury determines the weight to be given to circumstantial

evidence and the inferences to be drawn from this evidence, and the extent to which the

circumstances are consistent with guilt and inconsistent with innocence are questions

primarily for the jury. Dorantes, 331 S.W.3d at 379 (citing State v. Rice, 184 S.W.3d

646, 662 (Tenn. 2006)). When considering the sufficiency of the evidence, this court

shall not reweigh the evidence or substitute its inferences for those drawn by the trier of

fact. Id.

Aggravated sexual battery is defined as “unlawful sexual contact with a victim by

the defendant or the defendant by a victim [where] . . . [t]he victim is less than thirteen

(13) years of age.” T.C.A. § 39-13-504(a)(4) (2006). “„Sexual contact‟ includes the

intentional touching of the victim‟s, the defendant‟s, or any other person‟s intimate parts

. . . if that intentional touching can be reasonably construed as being for the purpose of

sexual arousal or gratification[.]” Id. § 39-13-501(6) (2006). “„Intimate parts‟ includes

the primary genital area, groin, inner thigh, buttock or breast of a human being[.]” Id. 39-

13-501(2) (2006). “The requirement of a particular purpose, to arouse or gratify sexual

desire, distinguishes the crime of sexual battery from an ordinary assault and from non-

criminal touching or contact.” State v. Santos Medardo Funes Romero, No. E2013-

02137-CCA-R3-CD, 2014 WL 7010815, at *16 (Tenn. Crim. App. Dec. 12, 2014) (citing

State v. Anthony Lee Hill, No. E2003-02998-CCA-R3-CD, 2005 WL 623244, at *5

(Tenn. Crim. App. Mar. 17, 2005)). The aggravated sexual battery statute does not

require that the defendant become sexually aroused or gratified by the sexual contact,

only that the touching can be “„reasonably construed as being for the purpose of sexual

arousal or gratification.‟” State v. Mahlon Johnson, No. W2011-01786-CCA-R3-CD,

2013 WL 501779, at *12 (Tenn. Crim. App. Feb. 7, 2013) (quoting State v. Roy

Chisenhall, No. M2003-00956-CCA-R3-CD, 2004 WL 12177118, at *3 (Tenn. Crim.

App. June 3, 2004)).

First, the defendant argues that the victim‟s testimony, without other proof, is

insufficient to establish the elements of the offense beyond a reasonable doubt. He

asserts that there were no “medical records, law enforcement testimony, physical

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evidence, or any other relevant evidence at trial to support [the] indictment or to

corroborate the testimony presented through [the State‟s] witnesses.” He also argues that

the victim‟s brother and Heather Gordon, the Department of Children‟s Services

investigator, failed to provide “any substantial proof” of the “required statutory elements”

for aggravated sexual battery. Here, the victim testified about one incident in Medina,

Tennessee, when the defendant digitally penetrated her vagina, and she rolled over,

which caused the defendant to stop. Initially, we note that the testimony of a victim,

alone, is sufficient to sustain a conviction for aggravated sexual battery. See State v.

Smith, 42 S.W.3d 101, 106 (Tenn. Crim. App. 2000); State v. Russell Victor McCollum,

No. M2012-00941-CCA-R3-CD, 2014 WL 1102012, at *6 (Tenn. Crim. App. Mar. 20,

2014). Moreover, we conclude that the victim‟s brother‟s and Gordon‟s testimony, as we

will explain below, provided circumstantial evidence corroborating the victim‟s testimony

regarding the charged offense.

Second, the defendant argues that the evidence presented at trial did not show that

his conduct was for the purpose of sexual arousal or gratification. It is well recognized

that a jury may infer intent from circumstantial evidence. See Hall v. State, 490 S.W.2d

495, 496 (Tenn. 1973); see also State v. Hayes, 899 S.W.2d 175, 180 (Tenn. Crim. App.

1995) (“[I]ntent is almost always proven circumstantially.”). Moreover, “jurors may use

their common knowledge and experience in making reasonable inferences from

evidence.” State v. Meeks, 876 S.W.2d 121, 131 (Tenn. Crim. App. 1993) (citing 23A

C.J.S. Criminal Law § 1380). Viewing the evidence in the light most favorable to the

State, we conclude that the proof is sufficient for a rational jury to find that the

defendant‟s touching of the victim‟s intimate parts was intentional and could be

“reasonably construed as being for the purpose of sexual arousal or gratification.” T.C.A.

§ 39-13-501(6). The evidence presented at trial showed that the defendant digitally

penetrated the victim‟s vagina on one occasion in Medina, Tennessee, when the victim

was either eight or nine years old. The victim later informed her mother and brother of

the defendant‟s abuse of her. Although the victim‟s mother confronted the defendant

regarding these allegations, she failed to take any further action. At some later point, the

victim‟s brother told a school counselor that the defendant had sexually abused his sister

and the victim disclosed this abuse to the same counselor. Shortly thereafter, the victim

told law enforcement and a forensic interviewer about the defendant‟s abuse of her. We

conclude that this proof supports the jury‟s determination that the defendant‟s touching of

the victim constituted “sexual contact” for the purpose of the aggravated sexual battery

statute and was sufficient to sustain the defendant‟s conviction.

Finally, the defendant argues that the evidence is insufficient to sustain his

conviction because “[t]he record . . . does not indicate which incident or incidents of

conduct the State relies on to support [his] conviction.” Although the State disclosed that

the charged conduct occurred in Medina, Tennessee, between December 2006 and

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November 2008, the defendant claims that none of the State‟s witnesses gave a time

frame, including the month, week, holiday, etc., that the charged act against the victim

occurred. He also claims that the victim testified about incidents that occurred after the

family moved to Milan and that “the State lumped all of its proof pertaining to sexual

contact between the victim and [him] into one general argument and sought a conviction

on these facts without defining which facts the State was relying upon to secure a

conviction[.]” Lastly, the defendant asserts that the victim‟s testimony as to the time

period of the indicted offense is not credible because she testified that the defendant

moved in with them shortly after they moved to Medina in 2007 while the other evidence

showed that the defendant did not start living with the victim‟s family in Medina until

2008. He contends that this disparity in proof is “particularly troublesome” given that the

State alleged the conduct charged in the indictment occurred “in 2007, long before [the

defendant] came to live with the victim.”

“„[W]hen the evidence indicates [that] the defendant has committed multiple

offenses against a victim, the prosecution must elect the particular offense as charged in

the indictment for which the conviction is sought.‟” State v. Johnson, 53 S.W.3d 628,

635-36 (Tenn. 2001) (quoting State v. Brown, 992 S.W.2d 389, 391 (Tenn. 1999)). The

doctrine of election allows the defendant to prepare for a specific charge, protects the

defendant against double jeopardy, ensures that a trial court is able to review the weight

of the evidence in its role as a thirteenth juror, and allows an appellate court to review the

legal sufficiency of the evidence. Brown, 992 S.W.2d at 391 (citing Tidwell v. State, 922

S.W.2d 497, 500-01 (Tenn. 1996); Burlison v. State, 501 S.W.2d 801, 803 (Tenn. 1973)).

Election also ensures juror unanimity by requiring the jurors to deliberate over and render

a verdict on the same offense. Johnson, 53 S.W.3d at 631 (citing Brown, 992 S.W.2d at

391).

The Tennessee Supreme Court has rejected a general sex crimes exception to Rule

404(b), which allowed evidence of other sex crimes to be admissible if they were for the

purposes of “corroboration, or to show the intimate relations between the parties, or to

show that the defendant had a lustful disposition.” See State v. Rickman, 876 S.W.2d 824,

828 (Tenn. 1994) (citations omitted); State v. Burchfield, 664 S.W.2d 284, 287 (Tenn.

1984). In rejecting the general sex crimes exception, the court recognized that such

evidence “easily results in a jury improperly convicting a defendant for his or her bad

character or apparent propensity or disposition to commit a crime regardless of the

strength of the evidence concerning the offense on trial.” Rickman, 876 S.W.2d at 828

(citing Anderson v. State, 56 S.W.2d 731, 731-32 (Tenn. 1933)). Instead, the court

recognized a narrow, special rule allowing for the admissibility of other sexual crimes

“when an indictment is not time specific and when the evidence relates to sex crimes that

allegedly occurred during the time as charged in the indictment.” Id. at 829; see State v.

Shelton, 851 S.W.2d 134, 136-37 (Tenn. 1993); State v. Brown, 762 S.W.2d 135, 137

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(Tenn. 1988); but see State v. Woodcock, 922 S.W.2d 904, 911 (Tenn. Crim. App. 1995)

(stating that “Rickman leaves no doubt that evidence of a defendant‟s sexual misconduct

not charged in the indictment and not connected to any of the charges in the indictment is

inadmissible during the State‟s case-in-chief under Tennessee Rule of Evidence 404(b)”);

State v. Danny Ray Smith, No. E2012-02587-CCA-R3-CD, 2014 WL 3940134, at *13

(Tenn. Crim. App. Aug. 13, 2014) (concluding that the trial court erred in admitting

evidence of other sexual acts pursuant to the Rickman rule when the State knew it was

going to elect the digital penetration incident as the event for which it was seeking

conviction and when this anticipated election was based on both the victim‟s testimony,

the defendant‟s confession to digitally penetrating the victim, and the inculpatory tracing

on the defendant‟s hand regarding the extent of the penetration); State v. Jeff Carter, No.

M2009-02399-CCA-R3-CD, 2010 WL 5343212, at *9-11 (Tenn. Crim. App. Dec. 16,

2010) (holding that the trial court improperly applied the narrow Rickman rule when

there was one indicted offense, when the State provided a detailed bill of particulars

identifying a single incident, and when the State repeatedly asserted during a motion

hearing that it was going to elect this single incident at the close of its proof).

The rule established in Rickman protects a defendant‟s right to a unanimous jury

verdict and allows “the State some latitude in the prosecution of criminal acts committed

against young children who are frequently unable to identify a specific date on which a

particular offense was committed.” Rickman, 876 S.W.2d at 828 (citing Shelton, 851

S.W.2d at 137). “Unlike evidence of prior crimes excluded by Bunch [v. State, 605

S.W.2d 227, 230 (Tenn. 1980),] and Tenn. R. Evid. 404(a) & (b), evidence of a prior sex

crime that is necessarily included within the charge of the indictment is also necessarily

relevant to the issues being tried and, therefore, is admissible.” Id. at 829 (citing Tenn. R.

Evid. 402). When utilizing the narrow rule in Rickman, “the State must elect at the close

of its proof-in-chief as to the particular incident for which a conviction is being sought.”

Id. However, this court has concluded that the State may effectively elect offenses as late

as its closing arguments after presenting evidence of other sexual crimes pursuant to

Rickman. See State v. Warren Curnutt, No. M2006-00552-CCA-R3-CD, 2007 WL

1482390, at *6 (Tenn. Crim. App. May 22, 2007); State v. James Arthur Kimbrell, No.

M2000-02925-CCA-R3-CD, 2003 WL1877094, at *23 (Tenn. Crim. App. Apr. 15, 2003).

In this case, the indictment alleged that the defendant “upon or after December 1,

2006, in Gibson County, Tennessee, and before the finding of this indictment, did

unlawfully and knowingly sexually penetrate [the victim], a person less than thirteen (13)

years of age and more than three (3) years of age, in violation of T.C.A. § 39-13-522 . . .

.” The bill of particulars stated that the defendant lived with the victim in Medina,

Tennessee, “from December of 2006 until November of 2008” and that during that time

period, the defendant “did digitally penetrate the victim‟s vagina on at least on[e]

occasion” and “did fondle the victim on multiple occasions on her vagina and buttocks.”

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At trial, following the close of all proof in this case, the State identified its election

offense as “the one incident where the victim . . . described [the defendant] tucking her

into bed and reaching underneath her panties and inserting a portion of his finger in her

vagina.” Although the defendant claims that the State failed to identify the conduct relied

upon in the indictment, the record shows that the State made a proper election in this

case. While the victim testified that the defendant inappropriately touched her “private

spot” numerous times while tucking her into bed, the victim only testified about one

incident in which the defendant digitally penetrated her vagina, which caused her to roll

over until he stopped.

As to the defendant‟s claim that none of the State‟s witnesses gave a time frame,

including the month, week, holiday, etc., that the indicted offense occurred, we recognize

that the State is not required to provide a defendant with the specific date that the indicted

offense occurred. The Tennessee Supreme Court, noting the difficulties in applying the

election requirement in child sex abuse cases, held that “a particular offense can often be

identified without a date.” Shelton, 851 S.W.2d at 137. This rule is reiterated in

Tennessee Code Annotated section 40-13-207, which provides:

The time at which the offense was committed need not be stated in the

indictment, but the offense may be alleged to have been committed on any

day before the finding of the indictment, or generally before the finding of

the indictment, unless the time is a material ingredient in the offense.

T.C.A. § 40-13-207; see State v. Byrd, 820 S.W.2d 739, 740 (Tenn. 1991) (“[T]he exact

date, or even the year, of an offense need not be stated in an indictment or presentment

unless the date or time „is a material ingredient in the offense.‟” (quoting T.C.A. § 40-13-

207)); State v. Sowder, 826 S.W.2d 924, 928 (Tenn. Crim. App. 1991) (“The indictment

need not be specific regarding the time or place of the offense[.]”). In Shelton, the court

outlined the various ways in which the State may identify the indicted offense for the

jury:

If, for example, the evidence indicates various types of abuse, the

prosecution may identify a particular type of abuse and elect that offense.

See e.g., State v. Fears, 659 S.W.2d 370, 374 (Tenn. Crim. App. 1983).

Moreover, when recalling an assault, a child may be able to describe unique

surroundings or circumstances that help to identify an incident. The child

may be able to identify an assault with reference to a meaningful event in

his or her life, such as the beginning of school, a birthday, or a relative‟s

visit. Any description that will identify the prosecuted offense for the jury

is sufficient. In fulfilling its obligation under Burlison to ensure that an

election occurs, the trial court should bear in mind that the purpose of

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election is to ensure that each juror is considering the same occurrence. If

the prosecution cannot identify an event for which to ask a conviction, then

the court cannot be assured of a unanimous decision.

Shelton, 851 S.W.2d at 138 (internal footnote omitted). Other than proving the victim‟s

age at the time of the offense, time is not a material ingredient in aggravated sexual

battery, which was the defendant‟s conviction offense. See Jeff Carter, 2010 WL

5343212, at *17. We conclude that the State properly identified the charged offense by

limiting the time period for the offense in the bill of particulars and by making an election

as to a specific incident at trial. The record shows the jury was required to consider the

State‟s elected offense, which was the single incident involving digital penetration of the

victim‟s vagina, and not the other offenses testified to by the victim.

Although the defendant claims the victim‟s testimony as to the time period of the

charged offense is not credible, we reiterate that it was the jury‟s prerogative, as the trier

of fact, to evaluate the credibility of the witnesses, determine the weight given to

witnesses‟ testimony, and reconcile all conflicts in the evidence. See Campbell, 245

S.W.3d at 335 (citing Byrge, 575 S.W.2d at 295). Moreover, this court does not

substitute its inferences for those drawn by the trier of fact. See Dorantes, 331 S.W.3d at

379. The jury in this case accredited the victim‟s testimony over the defendant‟s

testimony and resolved all inconsistencies of the evidence in favor of the State‟s theory

before finding the defendant guilty of the lesser included offense of aggravated sexual

battery in this case. Viewing the evidence in the light most favorable to the State, we

conclude the proof was sufficient to sustain the defendant‟s conviction. Because the State

properly identified the charged offense and because the evidence is sufficient to sustain

the conviction, the defendant is not entitled to relief on this issue.

II. Admission of Evidence of Other Crimes, Wrongs, or Acts. The

defendant argues that the trial court erred in permitting the victim to testify to events that

occurred beyond the trial court‟s jurisdiction and for permitting the State to cross-

examine the defendant about said events. Specifically, he contends that the evidence was

unfairly prejudicial pursuant to Tennessee Rules of Evidence 403 and 404(b) and that the

prejudice outweighed the probative value.

Tennessee Rule of Evidence 404(b) states that “[e]vidence of other crimes,

wrongs, or acts is not admissible to prove the character of a person in order to show

action in conformity with the character trait.” However, such evidence may be

admissible for other purposes, such as illustrating motive, intent, guilty knowledge, the

identity of the defendant, absence of mistake or accident, and common scheme or plan.

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Collard v. State, 526 S.W.2d 112, 114 (Tenn. 1975); Tenn. R. Evid. 404(b) Advisory

Comm‟n Cmt. In order to admit evidence of a prior bad act:

(1) The court upon request must hold a hearing outside the jury‟s presence;

(2) The court must determine that a material issue exists other than conduct

conforming with a character trait and must upon request state on the record

the material issue, the ruling, and the reasons for admitting the evidence;

(3) The court must find proof of the other crime, wrong, or act to be clear

and convincing; and

(4) The court must exclude the evidence if its probative value is outweighed

by the danger of unfair prejudice.

Tenn. R. Evid. 404(b)(1)-(4). Our standard of review of the trial court‟s determinations

under Tennessee Rule of Evidence 404(b) is whether the trial court‟s ruling was an abuse

of discretion. State v. Dubose, 953 S.W.2d 649, 652 (Tenn. 1997). However, this

decision is entitled to deference only if the trial court substantially complied with the

procedural requirements of Rule 404(b). Id.

At trial, the victim began to testify about several incidents that occurred in Milan,

Tennessee. Trial counsel objected “to things that are outside this Court‟s jurisdiction.” A

bench conference was held, and the State argued that the incidents were relevant to show

motive. Trial counsel did not argue that the evidence was inadmissible under 404(b) or

ask the court to hold a hearing to determine the admissibility of the testimony. The trial

court found that the evidence was relevant, and trial counsel did not further object.

Initially, the majority notes that a party on appeal is bound to the ground of the

objection that it asserted at trial. See State v. Schiefelbein, 230 S.W.3d 88, 129 (Tenn.

Crim. App. 2007) (citing State v. Adkission, 899 S.W.2d 626, 634-35 (Tenn. Crim. App.

1994); Tenn. R. Evid. 103(a)(1)); see also Tenn. R. App. P. 36(a) (“Nothing in this rule

shall be construed as requiring relief be granted to a party responsible for an error or who

failed to take whatever action was reasonably available to prevent or nullify the harmful

effect of an error.”). Although the defendant initially objected to evidence of acts,

crimes, or wrongs in Milan, he objected on the ground that this evidence was outside the

trial court‟s jurisdiction. Consequently, the defendant has waived any issue regarding the

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admission of this evidence pursuant to Rule 404(b) because he did not object to this

evidence on this ground at trial.

Because the defendant has waived this issue, we may only review it for plain

error.2 This court has held that “rarely will plain error review extend to an evidentiary

issue.” State v. Ricky E. Scoville, No. M2006-01684-CCA-R3-CD, 2007 WL 2600540, at

*2 (Tenn. Crim. App. Sept. 11, 2007). In order to obtain plain error review, the

defendant must show that:

(a) the record clearly establishes what occurred in the trial court; (b) a clear

and unequivocal rule of law was breached; (c) a substantial right of the

accused was adversely affected; (d) the accused did not waive the issue for

tactical reasons; and (e) consideration of the error is “necessary to do

substantial justice.”

State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting Adkisson, 899 S.W.2d at 641-

42). “It is the accused‟s burden to persuade an appellate court that the trial court

committed plain error.” State v. Bledsoe, 226 S.W.3d 349, 355 (Tenn. 2007) (citing

United States v. Olano, 507 U.S. 725, 734 (1993). “[T]he presence of all five factors

must be established by the record before this Court will recognize the existence of plain

error, and complete consideration of all the factors is not necessary when it is clear from

the record that at least one of the factors cannot be established.” Smith, 24 S.W.3d at

283.

The majority concludes that the defendant has not established that plain error

review is warranted. First, while the record clearly establishes what occurred in the trial

court regarding the objection to the Milan incidents, the record is incomplete in regards to

a 404(b) objection. Because trial counsel did not object under 404(b) or request a jury-

out hearing, the trial court was unable to determine whether a material issue other than

conduct conforming with a character trait existed or whether the probative value of the

evidence was outweighed by the danger of unfair prejudice. Second, it is not apparent

that the trial court breached a “clear and unequivocal rule of law” by failing to follow the

procedures of 404(b). The rule states that the trial court must hold a jury-out hearing

2

The majority notes that in his brief, the defendant did not raise the issue of plain error. Instead, he

argued only that the evidence was inadmissible pursuant to Tennessee Rules of Evidence 403 and 404(b).

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upon request. Tenn. R. Evid. 404(b)(1). While a trial court may sua sponte conduct a

hearing, the language of the rule indicates that “the trial court was not obligated to

conduct such a hearing absent a request.” State v. Hall, 958 S.W.2d 679, 707 (Tenn.

1997) (app‟x); see also State v. Jones, 151 S.W.3d 494, 498 n.3 (Tenn. 2004) (declining

to consider whether evidence should have been excluded pursuant to 404(b) when the

defendant failed to request a 404(b) hearing). As the defendant did not request a 404(b)

hearing, the trial court was not obligated to conduct one. Because the defendant has

failed to show that the first two plain error factors are satisfied, we need not consider the

remaining factors. The defendant is not entitled to any relief.

III. State’s Discussion with Victim During a Break in her Testimony. The

defendant argues that the trial court erred in allowing the victim to testify after talking

with the prosecutors during a break at trial. He asserts that the “victim‟s testimony at trial

may have been . . . discussed in the presence of the jury” and that “the victim‟s testimony

may have been unfairly coached or influenced [by the prosecutors] during the lunch

break on the day of trial[.]” The defendant contends that “[t]his type of undue influence

on a material witness, coupled with the witness‟s own uncertain answer on whether it

actually happened” prejudiced him because the victim was the State‟s primary witness.

Moreover, he asserts that the trial court should have instructed the jury to either disregard

anything it may have heard during the beginning of the lunch break or should have

prevented the victim from testifying further if the court believed the victim had discussed

her testimony outside the trial and in the presence of the jury. We conclude that the

defendant has waived this issue for failing to make a contemporaneous objection and that

he is not entitled to plain error review.

During trial, defense counsel asked the victim if there had been times in her life

when she had “made up things that didn‟t really exist.” During the ensuing bench

conference, defense counsel stated that he intended to ask the victim about the times

when she had hallucinations about bugs being on her body. At the jury-out hearing on

this issue, the State said the defense had records showing that the victim received

treatments for these hallucinations approximately a year and a half before the time period

covered by the indictment. However, the State asserted that the victim‟s hallucinations

were not a “made up story” because “if you‟re having a hallucination you‟re believing

what you‟re saying and you‟re telling the truth.” The court replied: “[Defense counsel]

is saying that she was having hallucinations about something happening to her body that

wasn‟t happening. If, in fact, she was doing that within two years of this incident[.] I

think it‟s relevant in a case in which the Defendant says this didn‟t happen.” During this

hearing, defense counsel said he was also going to ask the victim about an incident when

her mother left her with a babysitter who showed her pornographic movies, and her

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mother had to take the victim to a mental health center to receive counseling for anxiety

stemming from the pornography two weeks before the hallucination event. He argued

that this evidence was relevant because it could explain how the victim had knowledge of

sexual matters prior to knowing the defendant, and the court agreed this evidence was

relevant. Because it was nearing noon, counsel for both sides agreed it was appropriate

to take a break for lunch, despite the fact that it was in the middle of the defense‟s cross-

examination of the victim.

After the jury retired from the courtroom for lunch, the trial court asked, “What‟s

going on? What is happening?” The record shows the court believed there was some

sort of a problem and asked to speak to counsel for each party during a jury-out hearing.

Upon being summoned, defense counsel stated, “I would assume they‟ve just gotten into

preparing the witness.” The trial court replied, “Well, that‟s one of my fears.” Defense

counsel added, “They have the break now and they know what the questions are that they

wouldn‟t have had otherwise.” The trial court asked the State if there was a problem and

noted that “everybody [was] gathered around this little girl and she‟s still testifying.”

When the court asked if the State was talking to the victim about her testimony, defense

counsel requested that the State disclose the substance of its conversation with the victim.

The State explained that it had asked the victim what she remembered about the bug

hallucinations, and the victim “indicated that she felt that bugs were crawling [on her and

that] she recalled being addressed . . . by someone about the movies she‟d watched.”

Defense counsel stated, “[I]f that‟s the substance of their conversation and that‟s her

testimony then I have no problem with anything.”

When the jury returned to the courtroom following the lunch break, defense

counsel continued its cross-examination of the victim. When counsel asked if anyone

had talked to her during lunch “about the case or [her] testimony,” the victim replied,

“Kind of and kind of not. No, not really.” Defense counsel then asked if anyone had told

her what to say, and she said, “No.” When defense counsel asked if anyone had given

her any suggestions about what to say, she responded, “Like, to tell you the truth. There

really were bugs in the house and I was afraid of bugs and I still am.” When he asked if

the State told her how she needed to answer his questions about the bugs, she stated,

“They just told me that there really were bugs in the house.” Then she said, “„Cause I

knew that I wouldn‟t imagine bugs for no reason.” When the victim was asked if she

remembered complaining that bugs were on her in the hospital even though there were no

bugs, she stated, “Really, I don‟t even know what was going on then.” Defense counsel

then asked the victim if she had a babysitter who showed her pornographic movies, and

the victim said, “I don‟t remember her ever showing them. I just remember picking them

up and thinking it was a movie and putting them in.” The victim did not recall going to

Pathways in 2006 for anxiety after watching the pornographic movies. She remembered

“going to the doctors about the bugs and . . . seeing the movies, but that‟s all.” At the end

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of her re-direct examination, the victim acknowledged meeting with the prosecutors to

talk about the case but asserted that the only thing the prosecutors wanted her to do was

tell the truth.

We note that the defendant failed to make a contemporaneous objection to this

issue at trial. See Tenn. R. App. P. 36(a) (“Nothing in this rule shall be construed as

requiring relief be granted to a party responsible for an error or who failed to take

whatever action was reasonably available to prevent or nullify the harmful effect of an

error.”). The record shows that the defense never objected to the victim continuing to

testify after meeting with the prosecutors. Instead, after the State disclosed the substance

of the conversation, defense counsel asserted that if the content of the conversation was

just as the prosecutor had claimed, then he had “no problem with anything.” The record

also shows that the defense never asked for the trial court to take any curative action.

Because the record shows that the defendant did not make a contemporaneous objection

or request any relief from the court, the issue is waived on appeal unless it constitutes

plain error.

We also agree with the State that this issue does not rise to the level of plain error.

See Tenn. R. App. P. 36(b) (“When necessary to do substantial justice, an appellate court

may consider an error that has affected the substantial rights of a party at any time, even

though the error was not raised in the motion for a new trial or assigned as error on

appeal.”); Adkisson, 899 S.W.2d at 641-42 (establishing the five factors that should be

considered by this court when determining whether an error is “plain error.”).

The record is devoid of any evidence that the victim‟s testimony was discussed in

the presence of the jury, so our consideration is limited to whether the prosecutors unduly

influenced the victim‟s testimony by talking to her during the break in trial. Prosecutorial

misconduct does not constitute reversible error absent a showing that it has affected the

outcome of the trial to the prejudice of the defendant. State v. Bane, 57 S.W.3d 411, 425

(Tenn. 2001) (citing Terry v. State, 46 S.W.3d 147, 156 (Tenn. 2001)). In determining

whether the prosecutor‟s conduct could have affected the verdict to the prejudice of the

defendant, this court should consider the following factors:

1) the conduct complained of, viewed in light of the facts and

circumstances of the case; 2) the curative measures undertaken by the court

and the prosecution; 3) the intent of the prosecutor in making the improper

arguments [or in pursuing the improper conduct]; 4) the cumulative effect

of the improper conduct and any other errors in the record; and 5) the

relative strength and weakness of the case.

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Berry, 141 S.W.3d at 586 (citing State v. Middlebrooks, 995 S.W.2d 550, 560 (Tenn.

1999)). There is nothing in the record that indicates any misconduct on the part of the

prosecutors in this case. The victim testified at trial that the testimony she was providing

to the jury was her own testimony. The defense never requested that the court strike the

victim‟s testimony and never objected to the victim continued testimony. The record

shows that the prosecutors did not tell the victim what to say; instead, the prosecutors told

the victim to tell the truth. See State v. Gary Lee Miller, No. M1998-00788-CCA-R3-

CD, 2000 WL 246452, at *10 (Tenn. Crim. App. Mar. 6, 2000). In addition, the defense,

during its extensive and thorough cross-examination of the victim, was allowed to delve

into whether the prosecutors influenced the victim‟s testimony. As we previously noted,

the defense never asked for any curative action from the court. Id.

We conclude that the defendant has failed to show how this alleged misconduct by

the State affected the outcome of his trial. Because the defendant has failed to show that

a substantial right afforded to him was adversely affected or that consideration of any

error is necessary to do substantial justice, we conclude that the defendant is not entitled

to plain error relief.

IV. Notice Given by State’s Bill of Particulars. The defendant asserts that he

was unable to adequately prepare for trial because the State‟s bill of particulars “lacked

specificity and substance,” particularly on the issue of the time frame for the charged

offense. He also claims that the evidence presented at trial deviated from the information

included in the bill of particulars regarding the charged offense. We conclude that the bill

of particulars properly identified the charged offense in this case and that any variance

between the proof and the indictment and bill of particulars was neither material nor

prejudicial.

First, the defendant asserts, without explanation, that the State could have

narrowed the beginning time frame for the charged conduct in Medina from December

2006 to May 2007, which effectively reduced the time frame for the charged offense by

nearly twenty percent. He states that if he had known of this narrower time frame prior to

trial, he could have used this information to better prepare his defense.

Tennessee Rule of Criminal Procedure 7(c) provides: “On defendant‟s motion, the

court may direct the district attorney general to file a bill of particulars so as to

adequately identify the offense charged.” The purpose of a bill of particulars is to

provide the defendant with enough information to prepare his defense, to avoid

prejudicial surprise at trial, and to preserve a claim of double jeopardy. Byrd, 820 S.W.2d

at 741 (citing State v. Hicks, 666 S.W.2d 54, 56 (Tenn. 1984)). “A bill of particulars is

not a discovery device and is limited to information a defendant needs to prepare a

defense to the charges.” State v. Sherman, 266 S.W.3d 395, 409 (Tenn. 2008) (citing

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Tenn. R. Crim. P. 7(c), Advisory Comm‟n Cmts). “Although a court should make every

effort to see that the prosecution supplies critical information in the bill of particulars, . . .

in cases involving child sexual abuse, the prosecution may be unable to supply specific

dates on which alleged offenses occurred.” State v. Speck, 944 S.W.2d 598, 600 (Tenn.

1997). A conviction will be affirmed “if in the course of the trial it does not appear that

the defendant‟s defense has been hampered by the lack of specificity.” Byrd, 820 S.W.2d

at 742). However, “a conviction must be reversed if trial testimony establishes that the

[S]tate had in its possession, either actually or constructively, additional information that

could have helped pinpoint the nature, time, or place of the offense, and withheld that

information from the defendant.” Id. A “lack of specificity [in a bill of particulars] will

not result in reversible error unless a defendant can prove prejudice.” Sherman, 266

S.W.3d at 409 (citing Speck, 944 S.W.2d at 601; Byrd, 820 S.W.2d at 741).

We conclude that the bill of particulars sufficiently identified the charged offense

in this case. The indictment stated that “upon or after December 1, 2006, in Gibson

County, Tennessee, and before the finding of this indictment, did unlawfully and

knowingly sexually penetrate [the victim], a person less than thirteen (13) years of age

and more than three (3) years of age, in violation of T.C.A. § 39-13-522 . . . .” The bill of

particulars further limited the time period by stating that the defendant lived with the

victim in Medina, Tennessee, “from December of 2006 until November of 2008[.]” The

bill of particulars also limited the type of criminal conduct that occurred during that time

period because it stated that the defendant “did digitally penetrate the victim‟s vagina on

at least on[e] occasion” and “did fondle the victim on multiple occasions on her vagina

and buttocks.” At trial, following the close of all proof in this case, the State identified its

election offense as “the one incident where the victim . . . described [the defendant]

tucking her into bed and reaching underneath her panties and inserting a portion of his

finger into her vagina.” At trial, the victim was unable to pinpoint the exact date that the

defendant moved in with her family to their home in Medina and testified that the

defendant digitally penetrated her some time during the approximately year and a half

that her family lived in Medina. There is no evidence that the State possessed, either

actually or constructively, additional information that could have helped pinpoint the time

of the offense, and withheld that information from the defendant. Moreover, as we will

explain, the defendant is unable to prove that he was prejudiced by any lack of specificity

in the bill of particulars.

The defendant also claims that the evidence presented at trial deviated from the

information included in the bill of particulars regarding the charged offense. We note that

“„[a] variance between an indictment or a subsequent bill of particulars and the evidence

presented at trial is not fatal unless it is both material and prejudicial.” State v.

Shropshire, 45 S.W.3d 64, 71 (Tenn. Crim. App. 2000) (citing State v. Moss, 662 S.W.2d

590, 592 (Tenn. 1984); State v. Ealey, 959 S.W.2d 605, 609 (Tenn. Crim. App. 1997)).

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“A material variance occurs only if the prosecutor has attempted to rely upon theories and

evidence at the trial that were not fairly embraced in the allegations made in the charging

instrument.” Id. (citing State v. Mayes, 854 S.W.2d 638, 640 (Tenn. 1993); Ealey, 959

S.W.2d at 609); see Moss, 662 S.W.2d at 592. Prejudice is demonstrated if a defendant

can show that the indictment did not sufficiently inform him of the charges against him so

that he could adequately prepare his defense without being misled or surprised at trial or

if there is a danger that he may be prosecuted a second time for the same offense. Mayes,

854 S.W.2d at 640 (citing Moss, 662 S.W.2d at 592). “[T]he trial court cannot determine

whether or not the defendant has been hampered in his defense until the court knows

what proof the state will offer as to time and place of the offense, and how this evidence

relates to the actual theory of defense.” Byrd, 820 S.W.2d at 741.

After reviewing the record, we conclude that any variance between the proof and

the indictment and bill of particulars was neither material nor prejudicial. The victim‟s

testimony at trial was consistent with the bill of particulars. Although the victim was

unable to pinpoint the exact date that the defendant moved in with her family to their

home in Medina, she testified that the defendant digitally penetrated her some time

during the approximately year and a half that her family lived in Medina. The defendant

extensively cross-examined the victim at trial. He testified that he did not meet the

victim‟s mother until spring 2007 and presented evidence of the date he moved in with

the victim‟s family and of the lengthy periods of his military deployment, which

precluded his access to the victim. See State v. Everett Russ, No. W2012-00461-CCA-

R3-CD, 2013 WL 6500152, at *3 (Tenn. Crim. App. Dec. 9, 2013) (holding that the

defendant was not deprived of his ability to prepare for trial when the defendant knew the

weekends that the victim visited his house during the dates provided in the bill of

particulars), perm. app. granted, case remanded (Tenn. May 15, 2014), opinion on

remand, 2014 WL 3511051 (Tenn. Crim. App. July 14, 2014). Consequently, any

variance between the bill of particulars and the evidence presented at trial, if such a

variance existed, was neither material nor prejudicial. The defendant was given a time

period for the offense as well as detailed information regarding the location and nature of

the offense, which allowed him to adequately prepare a defense.

We also agree with the State that the defendant is unable to show that he was

prejudiced by the time period stated in the indictment and bill of particulars because his

defense at trial was that he never touched the victim for the purpose of sexual

gratification and that any touching of the victim‟s intimate parts, if it occurred, was

accidental. Because the defendant does not state that a more specific time period in the

indictment or bill or particulars would have changed his defense to his charge, he is not

entitled to relief.

Although we affirm the conviction in this case, we note some significant errors in

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the judgments forms. Specifically, the judgment forms erroneously show that count 1,

which charged the defendant with rape of a child, was dismissed instead of count 2,

which charged him with aggravated sexual battery. Based on the record, the judgment

forms should have shown that the defendant was convicted in count 1 of the lesser

included offense of aggravated sexual battery and that count 2 was dismissed. Although

a corrected judgment form in count 2 was later entered, it was entered for the purpose of

giving the defendant additional pretrial jail credit and did not correct any of the

aforementioned errors. In light of these errors, we vacate the judgments forms in counts

1 and 2.

CONCLUSION

In accordance with the foregoing authorities and reasoning, we affirm the

judgment of conviction, vacate the judgment forms in counts 1 and 2, and remand the

case for the entry of corrected judgments.

_________________________________

JOHN EVERETT WILLIAMS, JUDGE

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