State of Tennessee v. James William Mabe

10/18/2017

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs May 10, 2017

STATE OF TENNESSEE v. JAMES WILLIAM MABE

Appeal from the Circuit Court for Warren County

No. 15-CR-521 Larry B. Stanley, Jr., Judge

No. M2016-02096-CCA-R3-CD

The Defendant, James William Mabe, was found guilty by a Warren County Circuit Court

jury of three counts of attempted rape of a child, a Class B felony, and three counts of

aggravated sexual battery, a Class B felony. See T.C.A. §§ 39-13-522 (2014) (child rape);

39-12-101 (2014) (attempt); 39-13-504 (2014) (aggravated sexual battery). The trial court

merged the attempted child rape convictions with the aggravated sexual battery convictions

and imposed eleven-year sentences for each conviction. The court ordered partial

consecutive sentences, for an effective twenty-two-year sentence at 100% service. On

appeal, the Defendant contends that (1) the evidence is insufficient to support his

convictions, (2) the trial court erred by failing to require the State to make an election of the

offenses, (3) the trial court erred by failing to instruct the jury on the lesser included offenses

of child rape; and (4) his sentence is excessive. We affirm the judgments of the trial court.

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

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which NORMA

MCGEE OGLE and ALAN E. GLENN, JJ., joined.

Brandon J. Cox (on appeal), Smithville, Tennessee, and Daniel Barnes (at trial), Sparta,

Tennessee, for the appellant, James William Mabe.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel; Lisa

S. Zavogiannis, District Attorney General; and Tom Miner, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

This case involves allegations of inappropriate sexual contact between the victim and

the Defendant, the victim’s then-stepfather. At the trial, the victim’s father, a county

correction officer, testified that the victim was eight years old at the time of the March 2016

trial and that he and the victim’s mother had two additional children. He said that he and the

victim’s mother married in 1989 and divorced in 2011. He said that he remarried in 2011

and that his current wife had children from a previous marriage. He said the victim’s mother

married the Defendant sometime after the 2011 divorce. The victim’s father said that during

the divorce proceedings, he and the victim’s mother agreed to share custody of the victim

and that the arrangement worked well for everyone. He said that, additionally, he always

picked up the victim from her mother’s home when the victim’s mother needed and that if he

were working, the victim’s stepmother, picked up and dropped off the victim.

The victim’s father testified that on January 8, 2015, the victim was scheduled to go to

her mother’s home for a few hours and that the victim’s stepmother drove the victim to the

agreed-upon location. He said he was scheduled to pick up the victim after he left work. He

said that after the victim’s stepmother dropped off the victim, the victim’s stepmother called

him at work. He said that she asked him to go to the investigator’s office and that she was

already there with an investigator when he arrived. He said that she and the investigator told

him that the victim had disclosed earlier that the Defendant had “molested or raped” the

victim. He said that he took the victim to the sheriff’s office, the Child Advocacy Center

(CAC), and Our Kids Center.

The victim’s father testified that he discussed the allegations with the victim’s mother

and that the victim’s mother did not believe the victim. He said that as a result, he was

concerned the victim would continue to have contact with the Defendant, and he obtained an

order of protection prohibiting the victim’s mother and the Defendant from having contact

with the victim. He said that the victim’s mother was prohibited from having contact with

the victim initially but that at the time of the trial, the victim’s mother was allowed

supervised visitation with the victim. He said the supervised visits were ordered at the

request of the Department of Children’s Services (DCS).

The victim’s father testified that the victim had changed since she disclosed the

allegations. He said that the victim began knocking on his bedroom door at night, crying and

scared. He said that this initially occurred five or six nights weekly and lasted for a long

period of time. He said the victim said she was scared of the Defendant and feared what

might happen if she returned to her mother’s home.

On cross-examination, the victim’s father testified that although the custody

arrangement was for equally shared custody, any deviation from the parenting plan involved

the victim’s coming to his home. He said that the victim’s mother mostly did not work but

that she had worked between late 2013 and the end of 2014. He said the victim disclosed the

allegations on January 8, 2015, and that the victim immediately went to the CAC and to Our

Kids Center the following week. He said that the victim never had difficulty sleeping before

her disclosure but that she had difficulty afterward.

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The victim’s father testified about a previous incident in which Terry Steele and the

victim were “playing,” that Mr. Steele pinched the victim’s buttocks, that the victim reported

feeling uncomfortable due to the pinch, and that the victim’s father discussed it with Mr.

Steele. The victim’s father said that Mr. Steele apologized. The victim’s father did not

know about the victim’s accusing the boys from Mr. Steele’s neighborhood of “pinning her

down on the bed.” The victim’s father agreed that the victim accused a boy at her school of

pinching or slapping her buttocks, that the victim’s father talked to the victim’s teacher, that

the boy was “notorious for doing that” to several children, and that the victim’s father told

the victim to “slap” the boy and report it to her teacher in the future. He said the incident

resolved itself.

The victim’s stepmother testified that she worked as a hospice nurse and as a part-

time jail nurse. She said that she and the victim had a good relationship and that they had

never had a “big blow-up,” although the victim’s stepmother did not always agree with the

victim’s decisions. The victim’s stepmother said that on January 8, 2015, around 4:00 or

5:00 p.m., she drove the victim to meet the victim’s mother in order for the victim to spend a

few hours with the victim’s mother before the victim’s mother went to work that evening.

The victim’s stepmother recalled that her son went with them and that her son was the first

person to mention someone had inappropriately touched the victim. The victim’s stepmother

said that the victim’s mother was not at the meeting location and that while they waited, the

victim saw a “semi truck,” which the victim thought belonged to the Defendant. The

victim’s stepmother assured the victim that if the Defendant were with the victim’s mother,

the victim did not have to go with the victim’s mother because of an order of protection the

victim’s mother obtained against the Defendant after a domestic incident unrelated to this

case. The victim’s stepmother said that her son stated that the victim had told him that the

Defendant had placed the Defendant’s hands down the victim’s pants while she was napping

and “touched” the victim’s “privates.” The victim’s stepmother said that the victim shook

her head at her stepbrother as though she did not want her stepbrother to say anything about

the incident. The victim’s stepmother said that she asked the victim if those events occurred

and that the victim shook her head indicating yes. The victim’s stepmother recalled that the

victim was nervous and embarrassed, that the victim’s stepmother asked if it felt as though

anything “went inside of her body,” and that the victim said she felt a finger and burning.

The victim’s stepmother said she asked the victim how many times this occurred, that the

victim would not answer the question directly, and that the victim said this occurred when

the victim lived at Mr. Steele’s home and at the home across from the “cattle barn or the

cows.” The victim’s stepmother said that the victim’s mother arrived before the victim could

provide any additional information. The victim’s stepmother said that she encouraged the

victim not to mention to the victim’s mother what they had discussed until the victim’s

stepmother could talk to the victim’s father because the victim’s mother feared what might

happen. She said she felt powerless to prevent the victim from going with the victim’s

mother because the Defendant and the victim’s father were not there.

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The victim’s stepmother testified that after the victim left with the victim’s mother,

she contacted Warren County Sheriff’s Investigator Travis Thaxton. She said that at

Investigator Thaxton’s request, she met him at the sheriff’s office, that she called the

victim’s father and requested he come to the investigator’s office, and that she told the

victim’s father what the victim reported earlier that day. She said that a city police officer

came to the sheriff’s office and completed a police report and that afterward, the victim’s

father drove to pick up the victim. The victim’s stepmother said that the officer scheduled an

appointment at the CAC for the next day.

The victim’s stepmother testified that on January 9, 2015, the victim underwent a

forensic interview at the CAC and that the victim was examined physically at Our Kids

Center approximately two weeks later. The victim’s stepmother said that she provided the

victim’s medical history to the nurse practitioner who examined the victim and that about

four years earlier, the victim experienced a thirty-minute seizure at home, received treatment

from a neurologist, had not experienced any additional seizures, and no longer took

medication. The victim’s stepmother said that the victim did not have memory problems and

that the seizure occurred when the victim was in preschool. Based upon the victim’s

disclosure, the victim’s stepmother also reported to the nurse practitioner that digital

penetration occurred on more than one occasion and that the victim was shown pornography.

The victim’s stepmother testified that she was present during the victim’s examination

at Our Kids Center and that the victim repeated the same allegations the victim made on

January 8, 2015. The victim’s stepmother said that the victim had complained of painful

urination since the victim’s stepmother had known the victim and that the issue was ongoing.

She said that she treated the victim’s complaint with baking soda baths and ointment and

that the problem resolved itself until the victim presented again with the same symptoms.

The victim’s stepmother said that at the time of the trial, the victim complained less

frequently.

On cross-examination, the victim’s stepmother testified that the victim had not taken

seizure medication for approximately two years. She said that when the victim saw the semi-

truck on January 8, the victim became scared. The victim’s stepmother said that the

incidents alleged by the victim occurred in the summer, which was months before the

victim’s disclosure. The victim’s stepmother denied that she told the victim not to report the

allegation to the victim’s mother. The victim’s stepmother said that she told the victim not

to tell her mother that night because the victim said she had told her mother previously, but

her mother did not do anything about the allegation. The victim’s stepmother stated that the

criminal charges related to the order of protection the victim’s mother obtained against the

Defendant were dropped soon after the order was obtained.

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The victim testified that she was age eight and that she was home schooled, although

she went to school the previous year. She said that before the incidents occurred, her mother

lived at Mr. Steele’s home for a while and that the Defendant came there sometimes. She

said that at one point, the victim’s mother lived with the Defendant “close to some cows.”

The victim testified that on the day her stepmother drove her to meet her mother, she

saw a truck she thought belonged to the Defendant because he was a truck driver. She said

she did not expect the Defendant to be there. She said that while they waited for her mother,

her stepbrother told her stepmother that the Defendant had “touched” her, that she told her

stepbrother the Defendant had touched her, and that she did not remember what she told her

stepmother while they were inside the car. The victim did not think she went with her

mother that day and did not recall going to the sheriff’s office. She recalled going to the

CAC and said she went to the CAC for them to “help [her] with the problem . . . [w]hat [the

Defendant] did.” She remembered the interview at the CAC and said the woman showed her

the cameras and the microphone inside the interview room. She said that she watched the

video recording of the interview and that nothing was missing from or changed in the

recording. She said, though, that after watching the recording, she told the prosecutor that

she may have misunderstood the woman who asked questions.

The victim testified that during the interview, she discussed living at Mr. Steele’s

home. She said that when her mother and the Defendant lived at Mr. Steele’s home, she, the

Defendant’s daughter from a previous relationship, her mother, and the Defendant lay in a

bed together at night and that the Defendant “touched” her. She did not recall who she lay

beside but said the Defendant touched her “[f]ront and back.” The victim was shown a

drawing of a girl, displaying the front and back of the body, and was asked to circle the areas

the Defendant touched. The victim circled the genital and buttock areas. She said that she

was unsure with what the Defendant touched her, that she felt something “inside” her

“front,” and that she thought it had to be the Defendant’s hand. The victim said she told her

mother and her stepmother about this incident. The victim said she told her mother about

this incident when she and her mother were “putting up cans” in the refrigerator at Mr.

Steele’s home. The victim said she told her mother that the Defendant “touched” her,

although not where the Defendant touched her.

The victim testified that she did not recall any additional incidents occurring at Mr.

Steele’s home but said that an incident occurred at a place near “where there were cows,”

which she remembered because she and her mother lived next to the cows. She said that at

the home beside the cows, she, the Defendant’s daughter, and the Defendant lay in the

Defendant and the victim’s mother’s bed to take a nap when the victim’s mother was at

work. The victim recalled wearing underwear and a shirt. She said that she awoke from her

nap when the Defendant “touched” her and that the Defendant’s hand was inside the “front”

of her “pants.” She said she felt the Defendant’s hand inside her. When asked if the

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Defendant touched her buttocks during this second incident, she said, “I think both of the

times it was the front.” She thought the Defendant touched her buttocks but was unsure.

The victim testified that another incident occurred in the living room at the home

beside the cows. She said that she and the Defendant were sitting in a rocking and reclining

chair with a purple blanket over them, that they were watching Scooby-Doo, and that she

thought the Defendant’s brothers were there. She said that the Defendant “touched” her

when they were covered by the blanket. She said that the Defendant’s hand went “in her

pants” and on her “front” private area. She denied the Defendant touched her buttocks and

said she did not think anything went inside of her. The victim did not recall any incidents

involving Mr. Steele or a boy at her school.

On cross-examination, the victim testified that she suffered from nightmares that

began a long time ago. She recalled having a seizure but denied she had difficulty sleeping

because of it. She said that when her mother lived at Mr. Steele’s home, the victim, her

mother, the Defendant, and the Defendant’s daughter slept in a large bed and that Mr. Steele

slept in another bedroom. The victim said that sometimes she slept in a Hello Kitty bed. She

recalled the Defendant’s being sick and sleeping with a machine that covered a portion of his

face. Relative to the incident the victim described at Mr. Steele’s home, she thought the

Defendant was awake when he touched her.

The victim testified that when her mother lived at the home near the cows, she and the

Defendant’s daughter slept in the same bed at night but that she slept in her mother’s bed at

naptime. She said that when her mother lived near the cows, the Defendant and “Mr. Earl”

cared for her when her mother was at work. Relative to the incident in which she watched

Scooby-Doo, she thought “a few” of the Defendant’s brothers were there but was unsure of

the number. She said that she was familiar with the Defendant’s truck because he took her to

work with him once when her mother lived at Mr. Steele’s home.

On redirect examination, the victim testified that the Defendant showed her a cell

phone on the same day of the incident that occurred in bed at the home near the cows. She

said that the Defendant showed her a video recording of a man with “his hand under a

[naked] girl’s bottom and she got up and walked away.” She said that the Defendant asked

her to tell him what occurred in the recording. On recross-examination, she stated that she

thought the cell phone belonged to her mother and was blue. She agreed that every time the

Defendant touched her, she was asleep or about to go to sleep.

M’Lee Hudgins, a forensic interviewer with the CAC, testified that she conducted the

victim’s interviews on January 9, 2015, and February 5, 2015. Video recordings of the

interviews were played for the jury.

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In the January 9 recording, the victim stated that her stepmother brought her to the

CAC to talk about the Defendant’s touching her “privates.” The victim said the Defendant

touched her on two occasions, once at her mother’s home and once at Mr. Steele’s home.

She explained that she “felt a finger . . . inside” her “front one.” The victim was shown a

drawing and circled the vaginal area when asked to identify her front one. She said that the

Defendant “rubbed” her “back one,” which she identified as her buttocks, that he touched her

under her clothes with his hands, that she did not feel anything enter her buttocks, and that

this occurred when her mother was at work. She said that a couple days later, she told her

brother about the incident, that he mentioned it to the victim’s stepmother in the car, and that

the victim told her stepmother about the incident. The victim said the incident occurred

when she lay in bed with the Defendant and the Defendant’s daughter at naptime.

The victim explained that one incident occurred when she, the Defendant, and the

Defendant’s daughter were in the Defendant and the victim mother’s bed. The victim said

that she had taken naps with the Defendant previously but that the Defendant had not

touched her. The victim said that the Defendant began touching her when they were taking a

nap and that “he did the front first.” The victim said that it felt as though the Defendant’s

finger was inside her, that it was “going around and around,” and that it felt strange. She

said that after the touching, the Defendant showed her a “gross video” on his cell phone, that

the video showed a naked girl sitting on a sofa with a man touching her “back private part,”

and that the Defendant asked, “Do you think she did not feel good?” The victim said that

she responded, “Whatever,” that she had to say something to the Defendant, and that the

Defendant “would have got on to her” if she did not respond. She said the Defendant’s

daughter was asleep in the bed when the Defendant showed her the video. The victim

thought the Defendant showed her a second video but could not recall its contents. She said

that the Defendant did not say anything when he touched her. She said that she removed her

pants during naptime but wore underwear and a long-sleeve shirt and that the Defendant

removed his black short-sleeve shirt with blue letters but wore shorts or underwear. She

denied touching the Defendant’s body.

The victim stated that another incident occurred when the victim’s mother and the

Defendant lived at Mr. Steele’s home, which she said was before the incident at the home

near the cows. She said that the Defendant touched her front part when she lay in bed with

her mother and the Defendant. The victim said the Defendant’s daughter was either sleeping

with them or with Mr. Steele. She said that her stomach hurt, that her mother said she would

rub the victim’s stomach, that the Defendant began rubbing the victim’s stomach instead,

and that the victim did not trust the Defendant. The victim said that the Defendant touched

the “front” inside her clothes and that the Defendant “went way down.” She said that she

“did not hardly remember” whether she felt the Defendant’s finger but said later that “there

was a finger . . . that went inside and did something.” She said it felt as though the finger

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went “around and around.” She said that she thought she was age six at the time of this

incident and that she was age seven at the time of the interview.

The victim stated that the Defendant’s touching her did not feel right but that the

Defendant did not say anything about the incidents. She said she told her mother about the

Defendant’s touching her privates but that her mother acted as though she did not care.

The victim stated that the first incident was at Mr. Steele’s home, that “squirrels

jumped over” his home, and that they lived at Mr. Steele’s home during the summer. She

said that the second incident occurred at another home when it was summer.

During the February 5 forensic interview, the victim stated that “something else came

up” but that she could not remember. She said that other than the two incidents she

discussed in the previous interview, she almost fell asleep in a living room chair while

watching Scooby-Doo, that the Defendant touched her “front private,” that she could not

remember if he touched her under her clothes, that she could not remember if anything

entered her body, and that she did not think the Defendant said anything during the incident.

She described the chair as a rocking chair and said that she and the Defendant were reclined

in it. She said that she and the Defendant lay on their backs and that the Defendant did not

want her to touch his body. She thought her mother was at work but was unsure. She said

that the Defendant wore a black shirt with “blue stuff” on it and that she wore a Barbie shirt

and pants. She said she and the Defendant were under a purple blanket during the incident.

On cross-examination, Ms. Hudgins testified that she was unaware of any additional

allegations of abuse by the victim. Ms. Hudgins had no knowledge about a boy at school

pinching the victim’s buttocks and said the victim mentioned during the interview that Mr.

Steele tickled her. Ms. Hudgins said that determining whether a child had been coached was

a task for experts but that her training included asking enough questions in order for “team

members” to determine whether a child had been coached. On redirect examination, Ms.

Hudgins stated that disclosures of sexual abuse occurred in stages. She said that when a

child had suffered abuse more than once, it sometimes became difficult for the child to

process the incidents and that the child might disclose various incidents at different times.

On recross-examination, she agreed that another explanation for varying stories was that a

child fabricated the allegations.

The victim’s mother testified that the victim was born on September 19, 2007, and

that she and the victim’s father shared custody of their children when they divorced. She

said that she and the Defendant married in February 2011 and that they divorced in July

2015. Relative to the incident the victim described at Mr. Steele’s home, the victim’s mother

said that Mr. Steele was the victim’s great uncle and that she and the Defendant lived with

Mr. Steele twice during their marriage. The victim’s mother recalled living at Mr. Steele’s

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home in June 2011 and between November 2013 and June 2014. She said that between

November 2013 and June 2014, she, the Defendant, the victim, and the Defendant’s daughter

lived at Mr. Steele’s home. The victim’s mother said that during this time, she worked

nights from 11:00 p.m. to 7:00 a.m. and that the Defendant and Mr. Steele cared for the

victim when the victim’s mother worked.

The victim’s mother testified that the Defendant suffered from renal failure, that the

children slept at night when she worked, that the Defendant was capable of caring for the

victim when he was not hospitalized, and that “there on the end,” the Defendant required

assistance bathing. The victim’s mother recalled coming home from work and getting the

victim ready for school and said that Mr. Steele drove the victim to school and that she

picked up the victim from school. The victim’s mother said that during the summer months,

the Defendant cared for the victim and the Defendant’s daughter and that sometimes the

children lay in bed with her to nap.

The victim’s mother testified that when the victim mentioned the home near the cows,

the victim was talking about the home near the stock barn, where they lived between June

2014 and November 2014. The victim’s mother said that she, the Defendant, the victim, and

the Defendant’s daughter lived at the home, that the victim’s mother lost her job due to

illness, and that she began working the day shift on the weekends for a new employer. She

said that when she worked, the Defendant cared for the victim, that she later began working

the night shift, and that their neighbors, Jean and Earl Collins, assisted with childcare,

although the Defendant was the primary care provider when the victim’s mother worked.

The victim’s mother said that the Defendant had a cell phone when they lived at the home

near the cows, that he did not allow her to use his cell phone, and that she did not know the

phone’s contents.

The victim’s mother testified that she learned of the victim’s allegations on January 9,

2015, when a deputy delivered an order of protection preventing her from having contact

with the victim. The victim’s mother said that the allegations were shocking but that she

believed the victim after she and the victim spoke in July 2015. The victim’s mother said

that during the six months between the victim’s allegations and her speaking to the victim,

the victim’s mother questioned the veracity of the allegations because the Defendant always

“petted” the victim and treated the victim more favorably than the Defendant’s daughter.

The victim’s mother said that she expressed her reservations to the DCS investigator and to

law enforcement and that as a result, DCS obtained an order of protection.

The victim’s mother testified that the victim told her that the incidents occurred when

the victim’s mother was at work on the weekends. The victim’s mother said that the victim

reported an incident in which the victim was in a rocking chair watching Scooby-Doo when

they lived at the home near the cows. The victim’s mother said that at the time, they had a

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rocking recliner in the living room, that the victim watched Scooby-Doo movies on a laptop

computer, and that they had a purple throw blanket.

The victim’s mother testified that after speaking with the victim in July 2015, the

victim’s mother confronted the Defendant about the allegations by calling him a child

molester because the victim had alleged that he touched the victim’s private area and

digitally penetrated the victim. She said that the Defendant responded, “God had a big eraser

and he would forgive you for anything.” She said that afterward, she had little contact with

the Defendant. She said that she wanted her visitation rights reinstated and that the decision

to reinstate lay with DCS, not the victim’s father.

On cross-examination, the victim’s mother testified that she worked nights mostly

when she lived at Mr. Steele’s home between November 2013 and June 2014, and that the

Defendant worked for a construction company. She said that the Defendant left for work at

4:00 or 4:30 a.m. and returned home between 6:00 and 7:00 p.m. but that the Defendant

became ill and was admitted into the hospital for treatment periodically. She said that the

Defendant worked for a few months after moving into Mr. Steele’s home before becoming

ill. She recalled the Defendant began sleeping with a “sleep apnea machine” when he

became ill and said he slept on his side and with pillows in front of his stomach. She said

that when the Defendant became extremely ill, she assisted him with dressing and bathing.

She said that before the Defendant became too ill to work, he injured himself at work and

later fell asleep while driving because of accumulated fluid. She agreed the Defendant fell

asleep often as result of his illness and sleep apnea. She said that the Defendant had

difficulty moving around and breathing at times when the fluid accumulation was high.

The victim’s mother testified that when she and the Defendant lived at Mr. Steele’s

home, she had custody of the victim 40% of the time. The victim’s mother said that the

Defendant’s older daughter visited the home when the daughter wanted and that the victim’s

brother visited periodically but did not stay overnight.

The victim’s mother testified that when they lived at the home near the cows, the

victim was in her custody about 50% of the time. She said that the Defendant was in and out

of the hospital and not working at this time. She said that she usually did not take the victim

to Mr. and Mrs. Collins’s home because the victim was asleep when she left for work. The

victim’s mother said that the victim stayed with Mr. and Mrs. Collins infrequently because

the victim usually wanted to go to the victim’s father’s home when the victim’s mother was

at work.

The victim’s mother testified that the Defendant kept his cell phone with him when

the Defendant was hospitalized and that the phone was black with a red case. She said her

phone was white. She agreed the victim had accused others of touching her, including Mr.

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Steele, and that the victim’s mother saw Mr. Steele pinch the victim’s buttocks. The victim’s

mother said that she, the victim’s father, and Mr. Steele discussed the incident immediately.

The victim’s mother agreed that the victim accused Mr. Steele’s neighbors of pinning the

victim on a bed and that the allegation was false. The victim’s mother agreed that the victim

accused a boy at school of slapping the victim’s buttocks and said that she spoke to the

victim’s teacher about the incident. The victim’s mother said that the victim had suffered

nightmares and that the victim might have had a nightmare once every three months when

the victim was at her home. The victim’s mother said that the victim did not wake up

screaming when the victim had a nightmare but told her about it the next morning.

The victim’s mother testified that the Defendant took the victim to work once and that

the victim rode in the dump truck, not a semi-truck. The victim’s mother said that the victim

liked the Defendant and that the victim never showed fear or apprehension when she was

around the Defendant. The victim’s mother said the last time the Defendant and the victim

were alone occurred when the Defendant picked up the victim at the county fair in

September 2014. She said this occurred when they lived at the home near the cows.

Lisa Milam, a forensic social worker at Our Kids Center, testified that the victim was

evaluated on January 21, 2015. Ms. Milam said that a medical history was obtained and that

the victim reported a burning sensation when she urinated. Ms. Milan said that she asked the

victim if anyone had touched her “pee pee” and that the victim initially responded no. Ms.

Milam said, though, that the victim clarified that her stepmother touched her pee pee in order

to put medication on it to make it feel better and that the Defendant had “touched the front

and back but not [her] pee pee.” The victim identified the front as the area from which she

urinated but not her pee pee and said she referred to the area as “monk-monk.” Ms. Milam

said that the victim reported that the Defendant touched her with his hand and finger. The

victim reported that the touching occurred when she lay in bed between the Defendant and

his daughter, that the victim wore a shirt, that the touching occurred under the victim’s

clothes and felt as though the Defendant touched her inside and outside her monk-monk.

Ms. Milan said that the victim reported that the Defendant touched her buttocks but not

inside. The victim denied that the Defendant touched her with any other part of his body and

that any other person had touched her.

Ms. Milam testified that Lori Litrell performed the physical examination and obtained

a medical history from the victim’s stepmother, who reported a history of a seizure but no

history of genital abuse. Ms. Milan said that the victim’s stepmother also reported the victim

had a history of burning with urination, constipation, and itching and redness in the genital

area, which was treated with ointment. Ms. Milan stated that Ms. Litrell’s report showed

that the victim had a normal examination without acute or chronic signs of trauma. Ms.

Milan stated that the finding did not exclude the possibility of sexual abuse and that negative

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findings were expected in the majority of abuse cases. She said that only about seven

percent of children had abnormal physical examinations after an incident of sexual abuse.

The Defendant testified that he did not digitally penetrate the victim or rub her

genitals. He said that he suffered from stage five renal failure and that dialysis kept him

alive. He said that he fell from a silo at work, that he lay on the ground for hours before

anyone found him, and that high blood pressure during this time resulted in kidney damage.

He said that as a result of his condition, he suffered from swelling, could not consume more

than one liter of fluid per day, had decreased sexual desires, and experienced insomnia. He

said he had undergone dialysis four to five times per week since May 2015.

The Defendant testified that when he and the victim’s mother lived at Mr. Steele’s

home, he was in stage four kidney failure, that he slept excessively, and that he retained more

fluid than he had before reaching stage four. He said that at this time, he was unable to bathe

himself, the skin on his legs and feet would “bust” from the swelling, and he was unable to

dress himself. He said that he stopped working in April 2013, about one month before they

moved out of Mr. Steele’s home. He said that just before he stopped working, he fell asleep

while driving his truck and struck another vehicle, which resulted in his sustaining additional

kidney injuries. He recalled sleeping with a pillow on his chest to prevent any injuries if the

victim’s mother kicked him while asleep. He said that he also began sleeping with a sleep

apnea machine and that he slept facing the machine because of the cords. He said that he

suffered cramps in his arms, fingers, legs, and feet, that the cramps kept him awake at night,

and that the cramps caused soreness, making it difficult to walk. The Defendant stated that

immediately after he stopped working and when he lived at Mr. Steele’s home, he spent

more than one month in the hospital to remove excess fluid. He said that after he and the

victim’s mother moved into the home near the cows, he spent fifteen days in the hospital.

The Defendant testified that just before he and the victim’s mother moved out of Mr.

Steele’s home, the Defendant slept in “the big bed in the back” with the victim’s mother and

that the victim and the Defendant’s younger daughter slept in Mr. Steele’s bedroom with Mr.

Steele, although Mr. Steele stayed awake late watching television in the living room. The

Defendant said that after they moved to the home near the cows, the victim did not stay at

the home frequently. He said that his condition worsened after they moved and that he went

to the hospital monthly.

The Defendant testified that the victim’s allegations against the boy at her school and

the boys in Mr. Steele’s neighborhood occurred when the Defendant and the victim’s mother

lived at Mr. Steele’s home. He said that the victim’s allegations against Mr. Steele’s

neighbors appeared false because the victim and the boys mostly played outside and only in

the living room inside the home. The Defendant said that based upon the victim’s mother’s

discussion with the victim’s teacher, the alleged incident with the boy at school did not

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occur. The Defendant said that before his illness prevented him from working, the victim’s

mother was home with the children but that after he was unable to work, she began working.

He recalled that the victim’s mother helped him into bed before she left for work at night

and that the victim and his daughter slept with Mr. Steele because Mr. Steele was able to

help the children if they needed something during the night. The Defendant said that the

victim would “not hardly sleep” in his bedroom “because of the squirrels,” which the victim

thought were “monsters running across the house.” He said that the victim had difficulty

sleeping the entire duration of his relationship with the victim’s mother. He recalled the

victim’s sleeping about three hours per night and waking early.

The Defendant testified that he and the victim’s mother separated one month before

the trial and that the victim’s mother’s position about their relationship changed after

speaking with DCS employees at the courthouse on the day of the DCS hearing. He said he

thought the victim’s mother had been threatened with permanently losing her visitation rights

if she did not say she believed the victim. Relative to the incident at the home near the cows

in which the victim described watching Scooby-Doo and sitting in a living room chair, the

Defendant stated that they did not have a television. He said that the victim’s mother had a

laptop computer, that the computer did not belong to him, and that the victim’s mother

sometimes allowed the victim to watch videos on the computer.

On cross-examination, the Defendant testified that he worked most of the time he and

the victim’s mother lived at Mr. Steele’s home and that he helped paint Mr. Steele’s home

when they moved into the home. He denied, though, that his “ability to do things was . . .

sound” and said that his brothers painted the home with his limited assistance. He said that

he began receiving disability benefits around January 2015 and that his kidney disease

prevented him from working. He said, though, a friend who owned a construction company

offered to allow him to work when he felt well enough. He denied attempting to arrange

employment in an effort to have the GPS monitoring as required as a condition of his pretrial

release removed.

The Defendant testified that he witnessed Mr. Steele’s pinching the victim’s buttocks.

Relative to the victim’s accusation against Mr. Steele’s neighbors, the Defendant said the

allegation was never “proven to be true.” He said the victim’s mother talked to the boys’

grandmother, who said the victim’s allegations were not true. The Defendant did not believe

the victim’s allegations. Relative to the incident with the boy at the victim’s school, the

Defendant said that he did not speak to the teacher, that nobody knew if the victim told the

truth, and that the school would have done something if the boy had a history of

inappropriate conduct.

The Defendant testified that the victim’s mother obtained a divorce because DCS

forced her to file for divorce. He said that he did not realize DCS had forced the divorce

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until the last DCS hearing. He said the victim’s mother continued living with him without

interruption until one or two months before the trial. He clarified that after the victim’s

mother obtained the divorce, the victim’s mother obtained a separate home but that the

victim’s mother continued to stay at his home.

The Defendant disputed taking naps when he and the victim’s mother lived at Mr.

Steele’s home. He said that although he had taken naps, the victim’s mother usually slept

with the children on the bed during the day. He said that he worked during the day through

the week and on Saturdays from the time they moved into Mr. Steele’s home until about one

month before they moved to the home near the cows. He said he also worked occasionally

on Sundays during this time. The Defendant stated that when he and the victim’s mother

lived at the home near the cows from June to November 2014, the victim and his daughter

were at Mr. and Mrs. Collins’s home. He said the children never stayed alone with him.

On redirect examination, the Defendant testified that although it was impossible to

recall the victim’s mother’s work schedule when they lived at Mr. Steele’s home, she worked

five jobs. Relative to Mr. Steele’s neighbors, the Defendant said that the victim alleged the

boys attempted to kiss her when she was at Mr. Steele’s home but that “we” were there and

that the home was small. He said he did not know what occurred at the boys’ grandparents’

home. The Defendant agreed the victim’s mother spoke to the grandparents immediately.

He said that the police never examined his cell phone and that to his knowledge, the police

never examined the victim’s mother’s cell phone.

Earl Collins testified that he lived next door to the Defendant and the victim’s mother

when they lived at the home near the cows and that the victim and the Defendant’s daughter

often stayed at Mr. Collins’s home. He recalled that he and his wife first began babysitting

the children in June 2014. He said that the children came to his home three or four times per

week, that they arrived early in the morning and stayed all day, and that he cared for the

children because the Defendant was unable to care for the children due to the Defendant’s

health and because the victim’s mother worked. Mr. Collins recalled that the victim’s

mother dropped off and picked up the children. He said that the children were never out of

sight when they were at his home. He said the children stayed at his home until the victim’s

mother picked them up and that they never went home during the day. He said he never saw

the Defendant alone with the victim. Mr. Collins said that he and his wife cared for the

children the entire time the Defendant and the victim’s mother lived at the home near the

cows. Mr. Collins denied the victim mentioned the Defendant’s touching her or being afraid

of the Defendant. Mr. Collins denied witnessing any inappropriate behavior or contact

between the Defendant and the victim.

Courtney Mabe, the Defendant’s adult daughter, testified that she and the Defendant

had a good relationship. She said that when she came to visit the Defendant at Mr. Steele’s

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home, she slept on the sofa. Ms. Mabe recalled that her younger sister and the victim slept

together and that the victim sometimes slept with Mr. Steele. She said, though, that the

Defendant and the victim’s mother slept in their bed and that Mr. Steele slept with the victim

and Ms. Mabe’s younger sister. Ms. Mabe said that if the Defendant and the victim’s mother

were gone, the victim and Ms. Mabe’s younger sister slept in the Defendant and the victim’s

mother’s bed.

Ms. Mabe testified that after the Defendant and the victim’s mother moved to the

home near the cows, she visited the Defendant every weekend. She said that she never saw

the victim alone with the Defendant and that she and the victim spent a lot of time together

when they were both at the home. Ms. Mabe babysat the victim when needed and said the

victim never acted “skittish” or scared around the Defendant and did not report any

inappropriate contact with anyone.

On cross-examination, Ms. Mabe testified that she was unsure whether the Defendant

and the victim’s mother worked between November 2013 and June 2014. Ms. Mabe said

that the victim’s mother was always home with the children when the Defendant was home

and that when the Defendant and the victim’s mother were gone, Ms. Mabe cared for the

children or the children went to Mr. Collins’s home. Ms. Mabe said that at the home near

the cows, she slept in the same room with the victim and Ms. Mabe’s younger sister. She

said that the Defendant did not work when they lived at the home near the cows. She said

that Mr. and Mrs. Collins did not care for the victim and Ms. Mabe’s younger sister when

Ms. Mabe was at the home. She said that sometimes the victim went to Mr. and Mrs.

Collins’s home because the victim liked talking to them, even though Ms. Mabe, the victim’s

mother, and the Defendant were home.

Richard Mabe, the Defendant’s brother, testified that he and the Defendant had a good

relationship. Mr. Mabe said that when the Defendant and the victim’s mother lived at Mr.

Steele’s home, Mr. Mabe visited the home often. Mr. Mabe said he visited the home near

the cows a couple of times. He said that he never saw the victim at the home near the cows

but that at Mr. Steele’s home, the victim and the Defendant’s younger daughter played. Mr.

Mabe said he never saw the victim show any fear of the Defendant.

Upon this evidence, the Defendant was convicted of three counts of attempted rape of

a child and three counts of aggravated sexual battery. The trial court merged the attempted

child rape convictions with the aggravated sexual battery convictions and sentenced the

Defendant to an effective twenty-two years’ confinement at 100% service. This appeal

followed.

I & II. Sufficiency of the Evidence & Election of the Offenses

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The Defendant contends that the evidence is insufficient to support his convictions.

He argues that the victim’s trial testimony was inconsistent with her forensic interviews and

other previous statements about the incidents and with her physical examination. In a related

issue, he argues that the State failed to make a proper election of the offenses for any of the

charged offenses. The State responds that the evidence is sufficient to support the

convictions and that the trial court’s instructions to the jury were sufficient to allow the jury

to render unanimous verdicts.

In determining the sufficiency of the evidence, the standard of review is “whether,

after viewing 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); see State v. Vasques, 221 S.W.3d 514, 521

(Tenn. 2007). The State is “afforded the strongest legitimate view of the evidence and all

reasonable inferences” from that evidence. Vasques, 221 S.W.3d at 521. The appellate

courts do not “reweigh or reevaluate the evidence,” and questions regarding “the credibility

of witnesses [and] the weight and value . . . given to the evidence . . . are resolved by the trier

of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); see State v. Sheffield, 676

S.W.2d 542, 547 (Tenn. 1984).

“A crime may be established by direct evidence, circumstantial evidence, or a

combination of the two.” State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998); see State v.

Sutton, 166 S.W.3d 686, 691 (Tenn. 2005). “The standard of review ‘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 State v. Hanson, 279 S.W.3d 265, 275 (Tenn 2009)).

Rape of a child is defined as the “unlawful sexual penetration of a victim by the

defendant or the defendant by a victim, if the victim is more than three (3) years of age but

less than thirteen (13) years of age.” T.C.A. § 39-13-522. Sexual penetration is defined as

“sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however

slight, of any part of a person’s body . . . into the genital or anal openings of the victim’s, the

defendant’s, or any other person’s body, but emission of semen is not required[.]” Id. § 39-

13-501(7) (2014). A defendant commits criminal attempt when he acts “with the kind of

culpability otherwise required for the offense . . . [and] [a]cts with intent to cause a result that

is an element of the offense, and believes the conduct will cause the result without further

conduct on the person’s part[.]” Id. § 39-12-101(a)(2).

Aggravated sexual battery is defined, in relevant part, as “unlawful sexual contact

with a victim by the defendant or the defendant by a victim . . . [when] [t]he victim is less

than thirteen (13) years of age.” Id. § 39-13-504(a)(4). Sexual contact, in relevant part, is

“the intentional touching of the victim’s . . . intimate parts, or the intentional touching of the

clothing covering the immediate area of the victim’s . . . intimate parts, if that intentional

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touching can be reasonably construed as being for the purpose of sexual arousal or

gratification[.]” Id. § 39-13-501(6) (2010) (amended 2013). Intimate parts are “the primary

genital area, groin, inner thigh, buttock or breast of a human being[.]” Id. at (2).

When evidence is presented of multiple offenses that would fit the allegations of the

charge, the State must elect the particular offense for which a conviction is sought, and the

trial court must instruct the jury as to the need for jury unanimity regarding the finding of the

particular offense elected. See, e.g., State v. Brown, 762 S.W.2d 135, 137 (Tenn. 1988);

State v. Walton, 958 S.W.2d 724, 727 (Tenn. 1997). “The purpose of 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.” State v. Shelton, 851 S.W.2d 134, 138 (Tenn. 1993).

This election requirement . . . ensures that a defendant is able to prepare for

and make a defense for a specific charge. Second, election protects a

defendant against double jeopardy by prohibiting retrial on the same specific

charge. Third, it enables the trial court and the appellate courts to review the

legal sufficiency of the evidence. The most important reason for the election

requirement, however, is that it ensures that the jurors deliberate over and

render a verdict on the same offense.

State v. Adams, 24 S.W.3d 289, 294 (Tenn. 2000). The critical reason, however, for the

election is to protect a defendant against “patchwork verdicts.” Shelton, 851 S.W.2d at 137.

[T]he election requirement has been applied almost exclusively in the

sex crimes context, and specifically, when the defendant is alleged to have

committed a series of sexual acts over a lengthy period of time against young

children who are unable to identify the exact date on which any one act was

perpetrated.

State v. Johnson, 53 S.W.3d 628, 631 (Tenn. 2001) (citing State v. Brown, 992 S.W.2d 389

(Tenn. 1999)). “[T]he State may introduce evidence of sex crimes allegedly committed

against the victim during the time frame charged in the indictment, but, at the close of the

proof, the State must elect the facts upon which it is relying for conviction.” Id. (citation

omitted). “If a jury is allowed to convict without specific evidence supporting the election,

then the election is superficial and meaningless.” State v. Johnny Lee Hines, No. 01C01-

9709-CC-00405, 1999 WL 33107, at *4 (Tenn. Crim. App. Jan. 27, 1999). “The offense

must be proven in accordance with the election, i.e., to have occurred on [the elected] date

and under [the] circumstances.” State v. Marvin D. Nance, No. E2005-01623-CCA-R3-CD,

2007 WL 551317, at *6 (Tenn. Crim. App. Feb. 23, 2007) (citing Johnny Lee Hines, 1999

WL 33107, at *6), perm. app. denied (Tenn. May 14, 2007). Relative to an election of the

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offenses,

[T]he standard for sufficiency of the evidence applies to the designation of

offenses as though it were an element of the offenses. Not only must the

state’s election identify and distinguish offenses sufficiently to allow the trier

of fact to render discrete and unanimous verdicts on each, the state must . . .

support this election with evidence sufficient for a reasonable trier of fact to

find that the offenses occurred as elected beyond a reasonable doubt.

Johnny Lee Hines, 1999 WL 33107, at *4.

Relative to an election of the offenses, the record reflects that Count 1 of the

indictment read as follows:

THE GRAND JURORS of Warren County, Tennessee, duly impaneled and

sworn, upon their oath, present that: James William Mabe Between the dates

of March 1, 2013 and August 15, 2014, in Warren County, Tennessee and

before the finding of this indictment, did engage in unlawful sexual

penetration of [the victim] . . . a minor child over three (3) years of age but

less than thirteen (13) years of age, constituting the offense of Rape of a Child,

in violation of Tennessee Code Annotated § 39-13-522, a class “A” Felony,

and against the peace and dignity of the State of Tennessee.

The indictment shows that Counts 3 and 5 are identical to Count 1 in all respects except the

alleged date range. Counts 3 and 5 each allege the Defendant committed rape of child

between August 15, 2013, and January 8, 2015.

The record reflects that Count 2 of the indictment read as follows:

THE GRAND JURORS of Warren County, Tennessee, duly impaneled and

sworn, upon their oath, present that: James William Mabe Between the dates

of March 1, 2013 and August 15, 2014, in Warren County, Tennessee and

before the finding of this indictment, did engage in unlawful sexual contact

with [the victim] . . . a child less than thirteen (13) years of age, constituting

the offense of Aggravated Sexual Battery, in violation of Tennessee Code

Annotated § 39-13-504, a class “B” Felony, and against the peace and dignity

of the State of Tennessee.

The indictment shows that Counts 4 and 6 are identical to Count 2 in all respects except the

alleged date range. Counts 4 and 6 each allege the Defendant committed aggravated sexual

battery between August 15, 2013, and January 8, 2015.

-18-

The record does not reflect that the trial court, trial counsel, and the prosecutor

discussed an election of the offenses or the final jury instructions. The trial court, however,

provided the jury with the following instructions before closing arguments:

Count 1, rape of a child, alleged incident happened at the residence of

Terry Steele. You begin by determining whether the defendant is guilty or not

guilty of that charge. If you find guilty, you go to Count 2. If you find not

guilty you go down to the first lesser included offense of attempted rape of a

child. If you find guilty, you go to Count 2 . . . .

Next page we begin with Count 2, aggravated sexual battery. That

again . . . the alleged incident happened at the residence of Terry Steele. You

start with the charged offense of aggravated sexual battery. If guilty, go to the

next count. If not guilty, go to the next lesser included down and so on and so

forth.

. . . [T]hen you would get to Count 3, rape of a child, alleged incident

happened at a residence located [at the home near the cows] when the

defendant and the victim were in a bed together. You proceed in Count 3 just

like you did in Count 1 using the facts that apply to that particular count.

Count 4, aggravated sexual battery, again alleged incident happened at

the residence [located near the cows] when the defendant and the victim were

in bed together.

Count[s] 5 and 6 again rape of a child and aggravated sexual battery.

The allegation there is the alleged incident happened at a residence located

[near the cows] when the defendant and the victim were in a chair together.

So those are the different particular incidences.

The record does not reflect the trial court required the State to make an election of the

offenses. However, an election is only required “when evidence suggests that a defendant

has committed many sexual crimes against a victim.” Shelton, 851 S.W.2d at 137. “[T]he

failure to elect or give an [election of the offense] instruction should not constitute reversible

constitutional trial error if it can be concluded beyond a reasonable doubt that the verdict was

unanimous[.]” State v. Frank Frierson, No. 01C01-9112-CC-00357, 1993 WL 273974, at

*25 (Tenn. Crim. App. July 22, 1993), perm. app. denied (Tenn. Oct. 2, 1995). The victim

testified about three incidents of sexual contact. One incident at Mr. Steele’s home, which

the trial court explained during its final jury instructions related to Counts 1 and 2. The

victim also testified about two incidents at the home near the cows. The first incident

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occurred when the Defendant and the victim were lying in bed, which the trial court

explained were related to Counts 3 and 4. The second incident occurred when the Defendant

and the victim were sitting in a chair, which the trial court explained related to Counts 5 and

6. The victim did not testify about any additional incidents of sexual contact. We note that

the jury verdict forms state that Counts 1 and 2 relate to the “[a]lleged incident . . . at the

residence of Terry Steele,” that Counts 3 and 4 relate to the “[a]lleged incident . . . at a

residence [near the cows] when the Defendant and the victim were in bed together,” and that

Counts 5 and 6 relate to the “alleged incident . . . at a residence [near the cows] when the

Defendant and the victim were in a chair together.” We conclude that the court’s

instructions to the jury and the verdict forms prevented any patchwork verdict and ensured

jury unanimity on each count of the indictment. The jury was provided the factual basis for

each count “to differentiate among the various counts of the same offense[s]” and presented

the “means . . . to make a specific conduct to a specific count.” Tidwell v. State, 922 S.W.2d

947, 501 (Tenn. 1991).

In reaching this conclusion, we have not overlooked the Defendant’s argument that

the State should have elected which offense, rape of a child or aggravated sexual battery

relative to each of the three incidents, the State wished to submit to the jury. In essence, the

Defendant argues that the jury should have been instructed that it “could convict of either

rape of a child or aggravated sexual battery, but not both” relative to each incident. The

Defendant’s argument is misplaced. The purpose of an election of the offenses is to prevent

the State from presenting evidence of multiple incidents that would satisfy the allegation

contained in a single indictment count. An election of the offenses is related to the trial

evidence regarding a particularized incident. In many instances, evidence of multiple

incidents is presented that would satisfy the contents of a single indictment count. The

State’s election in such instances is to inform the jury of which single incident the State

seeks a conviction. Nothing in our jurisprudence prohibits the State from seeking a

conviction based upon alternative theories of how an offense occurred. We note that during

the prosecutor’s closing argument, he addressed each incident separately. The prosecutor

addressed Counts 1 and 2 simultaneously and stated that those counts related to the incident

occurring at Mr. Steele’s home. The prosecutor told the jury that Counts 3 and 4 related to

the incident occurring at the home near the cows when the victim and the Defendant lay in

bed together and that the remaining counts related to the incident occurring at the home near

the cows when the victim and the Defendant sat on a chair.

Relative to sufficiency of the evidence, the record reflects three incidents of sexual

contact. Relative to the incident at Mr. Steele’s home, which pertains to indictment Counts 1

and 2, the victim testified that she, the Defendant’s younger daughter, the victim’s mother,

and the Defendant lay in bed together and that the Defendant touched her “[f]ront and back.”

She identified the genital and buttock regions on a diagram during the trial indicating where

the Defendant touched her. She said that although she was unsure, she thought the

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Defendant touched her with his hand and that she felt something “inside” her front. During

the victim’s forensic interview, she provided similar information about this incident. She

stated that the incident occurred when she lay in bed with her mother and the Defendant, that

the Defendant touched her “front” inside her clothes, that the Defendant “went way down,”

and that “there was a finger . . . that went inside and did something.” The victim was age

seven at the time of the interview and thought she was age six at the time of the incident.

The evidence is sufficient to sustain the Defendant’s convictions in Counts 1 and 2.

Relative to the incident at the home near the cows occurring when the Defendant and

the victim lay in bed, which pertains to indictment Counts 3 and 4, the victim testified that

she, the Defendant’s younger daughter, and the Defendant lay in the Defendant and the

victim’s mother’s bed to take a nap while her mother was at work. The victim said that she

wore underwear and a shirt, that the Defendant lay beside her on the bed, and that she awoke

when the Defendant touched her with his hand inside the “front” of her “pants.” She said

that she felt the Defendant’s hand “inside” her and that she thought the Defendant touched

her buttocks once. During the victim’s forensic interview, she provided similar information

about this incident. She stated that when she, the Defendant’s younger daughter, and the

Defendant napped in the Defendant and the victim’s mother’s bed, the Defendant touched

her “front first” and that she felt the Defendant’s finger inside her. We conclude that the

evidence is sufficient to support the convictions in Counts 3 and 4.

Relative to the incident at the home near the cows occurring when the Defendant and

the victim sat on a chair, the victim testified that she and the Defendant sat on a living room

rocking chair with a purple blanket over them, that they watched Scooby-Doo, and that the

Defendant “touched” her when they were covered by the blanket. She said that the

Defendant’s hand went “in her pants” and on her “front” private area but denied that the

Defendant touched her buttocks and placed anything inside her private area. During the

victim’s forensic interview, she provided similar information about this incident. She stated

that this incident occurred when she almost fell asleep watching Scooby-Doo while she and

the Defendant sat on a living room rocking chair. She stated that the Defendant touched her

“front private” area and that she could not remember if the Defendant touched her under her

clothes or if anything entered her body. She stated that she and the Defendant were under a

purple blanket during the incident. We conclude that the evidence is sufficient to support the

convictions in Counts 5 and 6.

In determining the evidence is sufficient to support the Defendant’s convictions, we

have not overlooked his argument that the evidence is insufficient to support his convictions

because the victim provided the only evidence of the defendant’s conduct and because the

victim provided inconsistent statements. The victim’s testimony alone is sufficient to

support the Defendant’s convictions and requires no corroboration. See State v. Smith, 42

S.W.3d 101, 106 (Tenn. Crim. App. 2001); State v. Strickland, 885 S.W.2d 85, 87 (Tenn.

Crim. App. 1993). Furthermore, any inconsistencies in the victim’s testimony and her

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previous statements were resolved by the jury in favor of the State. This court will not

reweigh the evidence or assess witness credibility. See Bland, 958 S.W.2d at 659; Sheffield,

676 S.W.2d at 547.

Likewise, the Defendant argues that no proof shows he touched the victim for the

purpose of sexual gratification relative to the aggravated sexual battery convictions.

However, our courts have determined that the “sexual contact” in the context of sexual

battery does not require “the sexual contact itself be for 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), perm. app. denied (Tenn. Aug. 14, 2013). Rather, “[t]he statute

merely requires touching that can be ‘reasonably construed as being for the purpose of sexual

arousal or gratification.’” Id. (quoting T.C.A. § 39-13-501(6) (2010)). The evidence showed

that the three incidents involved touching the victim’s genital area and buttocks and that the

incidents occurred when the Defendant and the victim lay in bed or sat on a chair covered by

a blanket. The jury could have reasonably construed that the Defendant’s touching was for

the purpose of sexual arousal or gratification. Although the Defendant testified that he did

not touch the victim and that his renal failure and related illnesses decreased his sexual

desires, the jury was free to discredit his testimony. The Defendant is not entitled to relief.

III. Jury Instructions Regarding Lesser Included Offenses

The Defendant contends that the trial court erred by failing to instruct the jury that

aggravated sexual battery was a lesser included offense of the charged offense of rape of a

child pursuant to Tennessee Code Annotated section 40-18-110(f)(3) (Supp. 2016), which

states that aggravated sexual battery is a lesser included offense of rape of a child. Although

the Defendant acknowledges that he failed to comply with the statutory requirement that he

submit a written request for a lesser included offense jury instruction, see T.C.A. § 40-18-

110(a)-(c) (2012), he argues that he is entitled to plain error review.1 The State responds that

the issue is waived because the Defendant failed to request the jury instruction in writing and

because the Defendant failed to raise the issue in his motion for a new trial. Alternatively,

the State argues that a clear and unequivocal rule of the law was not breached.

A criminal defendant has “a right to a correct and complete charge of the law.”

1

We note that the version of Code section 40-18-110 effective at the time of the Defendant’s March 2016 trial did not

state that aggravated sexual battery was a lesser included offense of rape of a child. The 2016 statutory amendment

enumerating aggravated sexual battery as a lesser included offense of rape of a child became effective on July 1, 2016.

On October 22, 2016, our supreme court released its opinion in State v. Howard, 504 S.W.3d 260, 273-75 (Tenn. 2016),

concluding that aggravated sexual battery was a lesser included offense of rape of a child for offenses occurring before

the July 1, 2016 statutory amendment. Howard was released seven months after the Defendant’s trial. Because the

status of whether aggravated sexual battery was a lesser included offense of rape of a child was not apparent at the time

of the trial, the Defendant cannot establish that the omission of the instruction breached a clear and unequivocal rule of

law necessary for plain error relief. See State v. Fayne, 451 S.W.3d 362, 372 (Tenn. 2014).

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Hanson, 279 S.W.3d at 280 (citing State v. Garrison, 40 S.W.3d 426, 432 (Tenn. 2000)). As

a result, a trial court has a duty “to give proper jury instructions as to the law governing the

issues raised by the nature of the proceeding and the evidence introduced at trial.” State v.

Hawkins, 406 S.W.3d 121, 129 (Tenn. 2013) (citing Dorantes, 331 S.W.3d at 390); see State

v. Thompson, 519 S.W.2d 789, 792 (Tenn. 1975). An erroneous jury instruction, though,

may deprive the defendant of the constitutional right to a jury trial. See Garrison, 40 S.W.3d

at 433-34.

When a party fails to make a written request for a lesser included offense instruction,

a trial court may still instruct a jury on the offense. Bryant v. State, 460 S.W.3d 513,

523(Tenn. 2015). A party, however, is “not entitled to such an instruction.” Id. In order for

an appellate court to grant plain error relief,

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

and unequivocal rule of law must have been breached; (c) a substantial right of

the accused must have been 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. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994); see State v. Smith, 24

S.W.3d 274, 282 (Tenn. 2000). All five factors must be shown. Smith, 24 S.W.3d at 283.

“[C]omplete 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.” Id. In order for this court to reverse

the judgment of a trial court, the error must be “of such a great magnitude that it probably

changed the outcome of the trial.” Id.; Adkisson, 899 S.W.2d at 642.

The trial transcript does not reflect any discussion between the trial court and the

parties regarding the trial court’s final instructions to the jury generally, lesser included

offenses specifically, or any requests by the parties. Furthermore, the Defendant’s brief

neither cites to the portion of the record in which jury instructions were discussed nor states

whether lesser included offenses were discussed during the trial. The Defendant has the

burden of preparing a fair, accurate, and complete account of what transpired in the trial

court relative to the issues raised on appeal. See, e.g., State v. Bunch, 646 S.W.2d 158, 160

(Tenn. 1983); see T.R.A.P. 24(b). “When the record is incomplete, or does not contain the

proceedings relevant to an issue, this [c]ourt is precluded from considering the issue.” State

v. Miller, 737 S.W.2d 556, 558 (Tenn. Crim. App. 1987). Likewise, “this [c]ourt must

conclusively presume that the ruling of the trial court was correct in all particulars.” Id.

(citing State v. Jones, 623 S.W.2d 129, 131 (Tenn. Crim. App. 1981); State v. Baron, 659

S.W.2d 811, 815 (Tenn. Crim. App. 1983); State v. Taylor, 669 S.W.2d 694, 699 (Tenn.

Crim. App. 1983)); see State v. Ivy, 868 S.W.2d 724, 728 (Tenn. Crim. App. 1993). Based

upon the record before this court, it is unclear what discussions transpired in the trial court

relative to jury instructions generally and lesser included offenses specifically. The only

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aspect apparent from the record is that, as the Defendant concedes, he did not submit a

written request.

In any event, the Defendant’s motion for a new trial did not allege any error with the

court’s jury instructions. Tennessee Rule of Appellate Procedure 3(e) states, in relevant part,

in all cases tried by a jury, no issue presented for review shall be predicated

upon error in the admission or exclusion of evidence, jury instructions granted

or refused, misconduct of jurors, parties, or counsel, or other action committed

or occurring during the trial of the case, or other grand upon which a new trial

is sought, unless the same was specifically stated in a motion for a new trial;

otherwise such issues will be treated as waived.

As a result, this issue is waived for failure to include the issue in the motion for a new trial.

The State chose to indict the Defendant for two offenses connected to each incident, rape of a

child and aggravated sexual battery, as alternative theories of the crimes. Although the jury

found the Defendant guilty of attempted rape of a child, those convictions merged into the

respective aggravated sexual battery convictions. The Defendant is not entitled to relief on

this basis.

IV. Sentencing

The Defendant contends that his sentences are excessive. He argues that the trial

court abused its discretion by enhancing his sentences from eight to eleven years without

finding the enhancement factors to support it. The Defendant does not challenge the court’s

imposition of partial consecutive service. The State concedes that the court did not explicitly

find enhancement and mitigating factors but argues that the court considered the purposes

and principles of sentencing and did not abuse its discretion.

The presentence report was received as an exhibit and showed the forty-five-year-old

Defendant had previous convictions for misdemeanor theft and felony attempt to sell a

schedule II controlled substance. The Defendant reported an eleventh-grade education and

stated he suffered from stage five renal failure, underwent daily dialysis, and was removed

from the kidney transplant list twice because of his legal problems. The Defendant denied

any previous drug use. The report showed that the Defendant became angry during the

presentence interview when discussing his previous employment and noted that before he

met the victim’s mother, he did not have problems. Relative to this case, the Defendant

reported that he thought he “was done wrong by [the] court and [his] lawyer . . . and going

against [the prosecutor] and the relationship of the [two]. Just because you don’t have the

money to hire a lawyer you get done this way and it’s not fair.” The report showed that

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during the interview, the Defendant “continually disparaged the victim, her family, and the

court system.” The report showed that the Defendant threatened the kill the victim’s father if

presented with the opportunity.

The victim’s father submitted a victim impact statement on behalf of the victim. The

victim’s father stated that the victim had difficulty sleeping and worried about the Defendant.

The victim’s father said that the victim stressed about “small things” and had difficulty

dealing with normal problems. The victim’s father said that the Defendant had changed the

victim and her family. The victim began counseling in March 2015, and her counselor told

the victim’s father that the victim would need continuous counseling for “years to come.”

The victim’s father expressed his anger for the Defendant’s conduct and fear for the future.

He requested the maximum sentence.

The Defendant testified that that he did not threaten to kill the victim’s father during

the presentence investigation. He said, “I’ve never had a cross word with [the victim’s

father,] and I’ve never said nothing about [the victim]. I raised [the victim] as long as me

and her mother were married the best I could.”

Courtney Mabe, the Defendant’s older daughter, testified that the Defendant was not

violent, did not threaten people, and did not exhibit inappropriate sexual behavior in her

presence. She said that the Defendant was a good father and worked hard.

The trial court determined that the Defendant was a Range I, standard offender based

upon his previous convictions. The court considered the presentence report, the trial and

sentencing hearing testimony, the Defendant’s previous convictions, and the arguments of

counsel. The court merged Count 1, attempted rape of a child, into Count 2, aggravated

sexual battery, and sentenced the Defendant to serve eleven years for each count. The court

merged Count 3, attempted rape of a child, into Count 4, aggravated sexual battery, and

sentenced the Defendant to eleven years’ confinement. The court merged Count 5, attempted

rape of a child, into Count 6, aggravated sexual battery, and sentenced the Defendant to serve

eleven years.

In determining whether to impose consecutive sentences, the trial court considered the

trial evidence, the victim impact statement, the relationship between the victim and the

Defendant, and the duration in which the abuse occurred. The court noted that consecutive

service was permitted when a defendant was convicted of two statutory offenses involving

sexual abuse of a minor. The court ordered Count 2 to be served consecutively to Count 4,

for an effective twenty-two-year sentence at 100% service.

This court reviews challenges to the length of a sentence within the appropriate

sentence range “under an abuse of discretion standard with a ‘presumption of

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reasonableness.’” State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). A trial court must

consider any evidence received at the trial and sentencing hearing, the presentence report, the

principles of sentencing, counsel’s arguments as to sentencing alternatives, the nature and

characteristics of the criminal conduct, any mitigating or statutory enhancement factors,

statistical information provided by the Administrative Office of the Courts as to sentencing

practices for similar offenses in Tennessee, any statement that the defendant made on his

own behalf, and the potential for rehabilitation or treatment. State v. Ashby, 823 S.W.2d 166,

168 (Tenn. 1991) (citing T.C.A. §§ 40-35-103 (2014), -210 (2014); State v. Moss, 727

S.W.2d 229, 236 (Tenn. 1986); State v. Taylor, 744 S.W.2d 919 (Tenn. Crim. App. 1987));

see T.C.A. § 40-35-102 (2014).

Likewise, a trial court’s application of enhancement and mitigating factors is

reviewed for an abuse of discretion with “a presumption of reasonableness to within-range

sentencing decisions that reflect a proper application of the purposes and principles of our

Sentencing Act.” Bise, 380 S.W.3d at 706-07. “[A] trial court’s misapplication of an

enhancement or mitigating factor does not invalidate the sentence imposed unless the trial

court wholly departed from the 1989 Act, as amended in 2005.” Id. at 706. “So long as

there are other reasons consistent with the purposes and principles of sentencing, as provided

by statute, a sentence imposed . . . within the appropriate range” will be upheld on appeal.

Id.

The record reflects that the trial court imposed within-range sentences for a Range I,

standard offender convicted of three Class B felony offenses. See T.C.A § 40-35-112(a)(2)

(“A Range I sentence . . .[f]or a Class B felony, not less than eight (8) years nor more than

twelve (12) years[.]”). The Defendant’s eleven-year sentences are within range and are

afforded a presumption of reasonableness. The court stated in making its sentencing

determinations that it considered the presentence report, the trial and sentencing hearing

testimony, the Defendant’s previous convictions, arguments of counsel, the victim impact

statement, the relationship between the victim and the Defendant, and the duration in which

the abuse occurred. Although it is critical for trial courts to place on the record its findings

relative to mitigating and enhancement factors pursuant to Tennessee Code Annotated

section 40-35-210(e), the record supports the length of the Defendant’s sentences. The

record does not reflect that any of the mitigating factors applied in this case, and the

Defendant does not allege that the trial court should have applied any. See id. § 40-35-113.

Relative to enhancement factors, the Defendant had previous convictions for theft and

attempted sale of a controlled substance, which the trial court considered, although the record

does not reflect the court placed significant weight on the Defendant’s criminal history.

However, the Defendant concedes in his brief that the Defendant abused a position of trust

based upon his relationship with the victim. See id. § 40-35-114(14) (“The defendant abused

a position of . . . private trust . . . in a manner that significantly facilitated the commission or

the fulfillment of the offense[.]”). The Defendant was the victim’s then-stepfather, and the

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offenses occurred when the victim had visitation with her mother, the Defendant’s then-wife.

“[A] trial court is free to select any sentence within the applicable range so long as the

length of the sentence is ‘consistent with the purposes and principles of [the Sentencing

Act].’” State v. Carter, 254 S.W.3d 335, 343 (Tenn. 2008). Therefore, we conclude that the

Defendant is not entitled to relief on this basis.

In consideration of the foregoing and the record as a whole, we affirm the judgments

of the trial court.

_____________________________________

ROBERT H. MONTGOMERY, JR., JUDGE

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