State of Tennessee v. Roger Dean Guin

12/15/2023

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs April 25, 2023

STATE OF TENNESSEE v. ROGER DEAN GUIN

Appeal from the Criminal Court for Knox County

No. 118055 Scott Green, Judge

No. E2022-00391-CCA-R3-CD

The defendant, Roger Dean Guin, appeals his Knox County Criminal Court jury

convictions of aggravated sexual battery, rape of a child, assault, rape, incest, and sexual

battery by an authority figure, arguing that the trial court erred by denying his motion to

suppress his statement and that the evidence was insufficient to support his convictions.

Because the State’s elections in Counts 8, 9, and 10 were insufficient to protect the

defendant’s right to a unanimous jury verdict and to protect against violations of the

principles of double jeopardy, we vacate those convictions and remand for a new trial on

those counts. We also remand the case to the trial court for entry of corrected judgments

in Counts 3, 5, and 7 reflecting the merger of those convictions into Counts 2, 4, and 6

respectively and reflecting the proper misdemeanor classification and sentences. We

reverse the conviction in Count 1 and affirm the trial court’s judgments in all other respects.

Tenn. R. App. P. 3; Judgments of the Criminal Court Affirmed in Part; Reversed in

Part; Vacated and Remanded in Part

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which TIMOTHY L.

EASTER, and TOM GREENHOLTZ, JJ., joined.

J. Liddell Kirk, Madisonville, Tennessee (on appeal), and Robin Vargas, Blaine, Tennessee

(at trial), for the appellant, Roger Dean Guin.

Jonathan Skrmetti, Attorney General and Reporter; Abigail H. Rinard, Assistant Attorney

General; Charme P. Allen, District Attorney General; and Rachel Lambert and Jordan

Murray, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

The Knox County Grand Jury charged the defendant by presentment with

one count of aggravated sexual battery, two counts of rape of a child, two counts of rape,

one count of sexual battery by an authority figure, and four counts of incest.

At the November 2021 trial, the victim, who was 18 at the time of trial,

testified that she was born on June 19, 2003. She said that in 2013, the defendant, who was

dating the victim’s mother at the time, moved into the Knoxville home that the victim

shared with her mother and siblings. The victim’s mother and the defendant married in

2017, and the defendant moved out of the home sometime around the “end of 2018,

beginning of 2019.” The victim said that the defendant had a position of authority over her

and her siblings with their being expected to obey him and his being permitted to discipline

them. She said that the defendant “was a lot nicer to me” than to her siblings and “would

always kiss me and hug me.” The victim said that after the defendant moved in, her mother

had to “restart her chemo[therapy] treatment” for leukemia, which treatments caused her

to “[]sleep a lot of the time.”

The victim recalled an occasion sometime during 2013, in which her “whole

family was in the living room watching a movie” when the defendant began “scratching

my back.” He told her “that my skin was soft. And then proceeded to put his hands around

my waistband and touched my butt” inside her clothing. During a second incident also in

2013, the victim was in her bedroom (“bedroom 1”) that she shared with her two sisters

when the defendant “came in and put his hands” “inside” her “vaginal area.” The victim

said that she moved into another bedroom (“bedroom 2”) in the house in 2015, and the

defendant came into that room and touched her in the same way that he did in [bedroom

1].” The victim said that the defendant repeated this conduct “[a]lmost every night” while

the defendant lived in the home and while the victim was ages 10 through 15.

The victim recalled an occasion in which the victim accompanied the

defendant in the car “to get food” when the defendant “put his hand on my thigh and told

me . . . that if I had told anybody, we would get in trouble.” The victim understood him to

mean his “[t]ouching my vaginal area.” The victim said that “generally,” the defendant

touched her vaginal area and other parts of her body over her clothing “anywhere” in the

house, including “the living room.” When asked whether this conduct occurred when she

was younger than or older than 13 years old, the victim replied, “I’d say both.”

On another occasion, the victim was up at night caring for her mother who

was sleeping after a chemotherapy treatment when the defendant, who “had gotten drunk,”

told her to go to another room in the house. She went to the room that was a guest room at

the time (“bedroom 3”) and “laid on the bed about to go to sleep” when the defendant “had

come in there with just his boxers on and a beer and . . . his phone in his hand.” The

defendant “started touching me” and put his penis in her “vaginal area,” which she said

“hurt.” The victim could not remember exactly when this incident occurred but estimated

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that it was approximately two years before the defendant moved out in 2018, when the

victim was somewhere between the ages of 13 through 15. She also said that bedroom 3

had been her brother’s room before he moved out at age 18. She said that she was four

years younger than her brother.

The victim said that she did not report any of these incidents because she was

scared of the defendant, she had seen him be physically violent with her mother, and the

defendant had said that there would be bad consequences if she called the police about the

violence. The victim said that when she was a junior in high school, she told her boyfriend

about the defendant’s sexual abuse, and her boyfriend reported it to the police. When the

police came to her home to investigate, she disclosed the abuse and also reported it in a

recorded interview with the Department of Children’s Services (“DCS”).

During cross-examination, the victim acknowledged that during an interview

with DCS in 2018, she denied having been touched sexually. She said that she did not

disclose the abuse at that time because the defendant drove her to DCS that day and had

told her, “Make sure not to say something.” The victim also said that she had “been through

DCS up and down” and neither liked nor trusted them.

The parties stipulated to the fact that when the victim spoke with the police

at her home, she alleged that the abuse “had been ongoing for some period of time” and

that there “had been multiple instances.” The victim’s statement “was not limited to just

saying that [the abuse] happened in 2018.”

During redirect examination, the victim testified that she had undergone

more than one forensic interview at the Childhelp facility coordinated by DCS. She

acknowledged that she had been the victim of a separate sexual assault allegation involving

someone other than the defendant. She said that during the forensic interview about that

separate allegation, she denied any sexual abuse despite the abuse by the defendant being

ongoing at that time. The victim reiterated that she “was scared” and that the defendant

was still living with her family at that time and had “told me not to say anything about

him.”

Lieutenant Miranda Spangler testified that she worked in the family crimes

unit at the Knox County Sheriff’s Office (“KCSO”). She testified that she investigated this

case and reviewed the victim’s recorded forensic interview in which the victim disclosed

the defendant’s abuse. Lieutenant Spangler arranged for the victim’s mother to place a

recorded telephone call to the defendant. She said that it was her practice to talk with the

person who was going to place the call about “what we’re going to ask and what we need

to know” from the defendant. The call was placed from Lieutenant Spangler’s office. The

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jury heard the recorded telephone call between the victim’s mother and the defendant.

In that call, the victim’s mother asked the defendant, “Did you ever do

anything inappropriate with [the victim]?” At first the defendant admitted to hugging the

victim and “rubb[ing] her back.” Although the defendant was silent through much of the

conversation, he ultimately admitted to having “touched” the victim. He also admitted that

on one occasion, he entered a room with the victim, pulled down his boxers, pulled down

the victim’s pants, and had sex with the victim. The defendant told the victim’s mother, “I

guess I should have came to you when she wanted attention.”

Lieutenant Spangler acknowledged that she could be heard whispering on

the recording and said that she was directing the victim’s mother on follow-up questions

and what information she needed to obtain.

During cross-examination, Lieutenant Spangler acknowledged that she did

not interview the victim’s boyfriend but explained that the victim disclosed the abuse to

him over a text message and did not deem it necessary to obtain a statement from him. She

said that she did not collect evidence from inside the house because the abuse had occurred

approximately one-and-a-half to two years prior to when she began her investigation. She

acknowledged that she did not interview any of the victim’s siblings or investigate the

victim’s mother’s medical records for her chemotherapy dates to try to determine more-

specific dates of when the incidents of abuse occurred.

On redirect examination, Lieutenant Spangler said that she was not the initial

investigator on this case and that she got the case from Kenneth Aiken. As part of the

investigation, she extracted data from the victim’s cellular telephone.

The State rested.

After a Momon colloquy, the defendant elected neither to testify nor put on

any proof.

On this evidence, the jury convicted the defendant of one count of aggravated

sexual battery, two counts of rape of a child, two counts of rape, one count of sexual battery

by an authority figure, and one count of incest as charged in Count 9. As to the remaining

three incest charges in Counts 3, 5, and 7, the jury convicted the defendant of the lesser

included offenses of assault. After a sentencing hearing, the trial court sentenced the

defendant to an effective sentence of 40 years.

Following a timely but unsuccessful motion for a new trial, the defendant

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filed a notice of appeal.1 In this appeal, the defendant argues that the trial court erred by

denying his motion to suppress his statement made to the victim’s mother and that the

evidence is insufficient to support the convictions. Upon our order for supplemental

briefing, the defendant also argues that the State’s elections of offenses were inadequate

to protect his right to a unanimous jury verdict and to protect against a violation of the

principles of double jeopardy. He also argues that his assault convictions in Counts 3, 5,

and 7 violate the principles of double jeopardy.

I. Motion to Suppress

Before trial, the defendant moved to suppress a statement that he made to

the victim’s mother during a telephone call that was being recorded by law enforcement,

arguing that his statement was involuntary because the victim’s mother, acting as an agent

of the State, was overly coercive. The defendant argued only that the statement was

obtained in violation of his Fifth Amendment privilege against self-incrimination; he did

not raise a Sixth Amendment claim of a violation of his right to counsel or that he was

entitled to Miranda warnings.

During a hearing on the motion to suppress, Lieutenant Spangler testified

that as a detective with the family crimes unit of the KCSO, it was a common practice for

her to attempt to get recorded statements from suspects. In this case, Lieutenant Spangler

had the victim’s mother place a recorded telephone call to the defendant. She said that

before the call, she discussed with the victim’s mother “how she would start the

conversation and kind of where we wanted to go with the conversation.” She told the

victim’s mother that the conversation should be about “trying to get help for her daughter”

and her “want[ing] to know the truth so that she could get her counseling help, whatever

she needed to do for her.” Lieutenant Spangler told the victim’s mother that “we don’t

threaten, we don’t make promises, we don’t do anything like that.” The call was placed

from the lieutenant’s office, and Lieutenant Spangler and another detective were present

during the call. The defendant did not answer the first call, and the victim’s mother “left

a message.” When the defendant called back, the entirety of the conversation was

recorded. Lieutenant Spangler said that during the call, the defendant “admitted to

touching the victim and having sex with her.” Lieutenant Spangler said that during the

call, the victim’s mother made no threats or promises and told the defendant that she

wanted to know what had happened so that she could get help for the victim. She also

said that nothing prevented the defendant from terminating the call.

1

We note that the defendant’s notice of appeal was late by two days, being due on March 28, 2022.

However, because the State does not address the untimeliness of the notice of appeal and because appellate

counsel was appointed less than two weeks before the notice of appeal was due, we waive the timely filing

requirement in the interests of justice. See Tenn. R. App. P. 4(a).

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In the recorded telephone call, after the victim’s mother asked whether the

defendant had done “anything inappropriate” with the victim, she told him, “I’m not doing

this to try to get you in trouble.” She also said, “I need to know what happened so that I

can talk to [the victim] about it and I can work with her on this and get through this.

Otherwise, I’m going to send her to a counselor and let the counselor deal with it and then

whatever happens, happens.” When the defendant would not answer the victim’s mother’s

questions, she said, “By law, if I send her to a counselor, they have to tell what she tells.

And the amount of stuff she’s told me, I promise you’d get in a lot of trouble if anybody

else finds out.” After a period of silence by the defendant, the victim’s mother said,

“Answer the question. Because I don’t think you’d like for people to be showing up at

your dad’s house and getting your dad all upset about it, would ya? . . . So, you and I talk

about it or it’s going to be worse and the whole damn world’s going to end up knowing

about it.” After another period of silence, she said, “Ok, I guess I’ll have to call your dad

then, huh?” After yet another period of silence by the defendant, the victim’s mother said,

“How do you think Kathy would feel if she ever found out about this? You think she’d let

you see your kids anymore?” And later, “Do we need to end our phone call and I can call

Kathy?” Several times during the conversation, the defendant asked if he could call back

later, but the victim’s mother told him no.

During cross-examination, Lieutenant Spangler acknowledged that during

the telephone conversation, the victim’s mother led the defendant to believe that she was

at home. She said that prior to the call, she and the victim’s mother “had a roleplay of

how she would start the conversation” but that “[m]ost of the stuff that she said, I did not

instruct her to say.” She instructed the victim’s mother to “start the conversation however

you want to, but let’s start it as . . . we need to talk, and we need to talk about how to help

[the victim].” She told the victim’s mother “to put everything in her words.” During the

call, Lieutenant Spangler “wr[o]te down questions to get her back on track” when the

conversation “start[ed] straying away from what we’re trying to achieve.” Lieutenant

Spangler said that the victim’s mother repeatedly told the defendant not to hang up but

reiterated that he could have done so at any time. Lieutenant Spangler acknowledged that

she could be heard whispering on the recording, “Get him to say how old she was when

they had sex.” She said that she also wrote down questions during the conversation that

the victim’s mother should ask.

On redirect examination, Lieutenant Spangler said that she directed the

victim’s mother on “[v]ery little” of the 48-minute conversation.

In its written order denying the defendant’s motion to suppress, the trial

court concluded that the defendant’s statement was voluntary. In this appeal, the

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defendant reasserts his argument that his statement was involuntary because the victim’s

mother was overly coercive.

A trial court’s factual findings on a motion to suppress are conclusive on

appeal unless the evidence preponderates against them. State v. Binette, 33 S.W.3d 215,

217 (Tenn. 2000); State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Thus, questions of

credibility, the weight and value of the evidence, and the resolution of conflicting evidence

are matters entrusted to the trial judge, and this court must uphold a trial court’s findings

of fact unless the evidence in the record preponderates against them. Odom, 928 S.W.2d

at 23; see also Tenn. R. App. P. 13(d). The application of the law to the facts, however,

is reviewed de novo on appeal. State v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998).

As an initial matter, we note that the defendant failed to raise the issue of

suppression in his motion for new trial, and accordingly, he has waived our plenary review

of the issue. See Tenn. R. App. P. 3(e) (“[I]n all cases tried by a jury, no issue presented

for review shall be predicated upon error in the admission or exclusion of evidence . . . or

other ground 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.”).

Whether properly assigned or not, however, this court may, “[w]hen

necessary to do substantial justice, . . . 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.” Tenn. R. App. P. 36(b). This court will grant relief for plain error only when:

(1) the record clearly establishes what occurred in the trial

court; (2) the error breached a clear and unequivocal rule of

law; (3) the error adversely affected a substantial right of the

complaining party; (4) the error was not waived for tactical

purposes; and (5) substantial justice is at stake; that is, the error

was so significant that it “probably changed the outcome of the

trial.”

State v. Hatcher, 310 S.W.3d 788, 808 (Tenn. 2010) (quoting State v. Smith, 24 S.W.3d

274, 282-83 (Tenn. 2000)). The party claiming plain error bears the burden of satisfying

all five criteria as a prerequisite to plain error review. See id. Because each factor must be

established, we need not consider all five factors when a single factor indicates that relief

is not warranted. State v. Fayne, 451 S.W.3d 362, 372 (Tenn. 2014) (citing State v.

Bledsoe, 226 S.W.3d 349, 355 (Tenn. 2007)). “[A]n error would have to [be] especially

egregious in nature, striking at the very heart of the fairness of the judicial proceeding, to

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rise to the level of plain error.” Fayne, 451 S.W.3d at 372 (citation omitted) (alterations in

Fayne).

Here, the trial court’s admission of the statement did not breach a clear and

unequivocal rule of law. Generally, “the law provides no protection to a suspect or a

defendant whose trusted . . . confidant ‘has recorded or transmitted the conversations which

are later offered in evidence to prove the State’s case.’” State v. Sanders, 452 S.W.3d 300,

314 (Tenn. 2014) (quoting Clariday v. State, 552 S.W.2d 759, 768 (Tenn. Crim. App.

1976)). In our view, the secretly recorded telephone call placed by the defendant’s wife

was not so deceptive as to overbear the defendant’s will and render his confession

involuntary.2 See State v. Pate, No. M2009-02321-CCA-R3-CD, 2011 WL 6935329, at

*9-10 (Tenn. Crim. App., Nashville, Nov. 22, 2011) (citing State v. Robert Bacon, No.

03C01-9608-CR-00308, 1998 WL 6925, at *12 (Tenn. Crim. App., Knoxville, Jan. 8,

1998); State v. Branam, 855 S.W.2d 563, 568-69 (Tenn. 1993)). Consequently, the

defendant is not entitled to relief on this issue.

II. Election of Offenses

Within the defendant’s challenge to the sufficiency of the evidence, we

perceive two related issues: (1) whether the State’s election of offenses was sufficient to

protect the defendant’s state constitutional right to a unanimous jury verdict and (2)

whether the defendant’s convictions of assault in Counts 3, 5, and 7 violate the defendant’s

state and federal constitutional protections against double jeopardy. The parties did not

raise these issues, and we ordered supplemental briefing to allow the parties an opportunity

to be heard on these matters. See State v. Bristol, 654 S.W.3d 917, 927 (Tenn. 2022)

(“[W]hen an appellate court considers an issue that has not been properly presented, it must

give the parties ‘fair notice and an opportunity to be heard on the dispositive issues.’”

(quoting State v. Harbison, 539 S.W.3d 149, 165 (Tenn. 2018)).

In supplemental briefing, the defendant argues that the State failed to

adequately elect offenses to ensure the defendant’s right to a unanimous jury verdict as to

all counts and that the convictions in Counts 3, 5, and 7 should be dismissed for violation

of the principles of double jeopardy. The State contends that its election of offenses was

2

We need not reach the question whether the defendant’s wife was acting as an agent of the State.

See State v. Willis, 496 S.W.3d 653, 698 (Tenn. 2016) (“In cases that involve suspects making confessions

to friends, relatives, and other associates, the law need not be concerned with whether that confidant could

properly be labeled as a private citizen or an agent of the State.” (quoting State v. Sanders, 452 S.W.3d 300,

311 (Tenn. 2014)); see also State v. Clark, 452 S.W.3d 268 (Tenn. 2014). The issue of the confidant’s

agency only arises when the defendant’s Sixth Amendment right to counsel is at stake, Massiah v. United

States, 377 U.S. 201 (1964) and the right to counsel only attaches when formal charges are initiated, Willis,

496 S.W.3d at 703.

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sufficient and that any error was harmless but concedes that the convictions in Counts 3,

5, and 7 violate the principles of double jeopardy and should be merged into Counts 2, 4,

and 6 respectively.

When the evidence adduced at trial indicates that the defendant has

committed more offenses against the victim than were charged in the indictment, the State

must elect the facts upon which it intends to rely for each count of the indictment in order

to protect “the defendant’s state constitutional right to a unanimous jury verdict by ensuring

that jurors deliberate and render a verdict based on the same evidence.” State v. Johnson,

53 S.W.3d 628, 631 (Tenn. 2001); see also State v. Kendrick, 38 S.W.3d 566, 568 (Tenn.

2001); State v. Brown, 992 S.W.2d 389, 391 (Tenn. 1999); State v. Walton, 958 S.W.2d

724, 727 (Tenn. 1997). The election requirement arises most often when a defendant is

alleged to have performed multiple sexual acts over a lengthy period of time against young

children who are unable to provide the exact date on which any one act occurred. See, e.g.,

Johnson, 53 S.W.3d at 631; Brown, 992 S.W.2d at 391-92. Our supreme court has held

that when an “indictment charges that sex crimes occurred over a span of time, evidence

of unlawful sexual contact between the defendant and the victim allegedly occurring during

the time charged in the indictment is admissible,” but the State “must elect at the close of

its case-in-chief the particular offense for which it is seeking a conviction” in order “to

preserve a criminal defendant’s right under the state constitution to a unanimous jury

verdict” while allowing “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.” State v. Knowles, 470 S.W.3d 416, 423-24 (Tenn. 2015)

(citations omitted). “Any description that will identify the prosecuted offense for the jury

is sufficient. In fulfilling its obligation . . . to ensure that an election occurs, the trial court

should bear in mind that the purpose of election is to ensure that each juror is considering

the same occurrence.” State v. Shelton, 851 S.W.2d 134, 138 (Tenn. 1993) (internal

citations and footnote omitted).

Our supreme court grants 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.” State v. Qualls, 482 S.W.3d

1, 10 (Tenn. 2016) (quoting State v. Rickman, 876 S.W.2d 824, 828 (Tenn. 1994)). “The

election requirement may be satisfied in a variety of ways,” including by having the victim

identify incidents by “a specific month,” type of abuse, or “reference to a meaningful event

in his or her life.” Id. at 10-11.

When the State is faced with the “unusual situation” of a victim’s being able

to provide only “generic evidence” of “a pattern of abuse that occurred over an extended

period of time,” the State may rely on a modified unanimity jury instruction “as a substitute

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for the strict election doctrine.”3 Id. at 14-15. However, the reliance upon a modified

unanimity instruction is “limit[ed] . . . to cases involving only generic evidence.” Id. at 16

(emphasis added). When the State “presents non-generic evidence of distinguishable

criminal acts, the prosecution must elect the specific act for which it seeks conviction in a

manner that identifies the prosecuted offense for the jury.” Id. Importantly, when an

election of offenses is required, “[t]he election must be made at the conclusion of the State’s

case-in-chief.” Id. at 10 (citing State v. Rickman, 876 S.W.2d 824, 828 (Tenn. 1994));

Knowles, 470 S.W.3d at 423-24.

Here, with the exception of Counts 8, 9, and 10, the State presented non-

generic evidence of criminal acts and, consequently, was required to make an election at

the close of its case-in-chief. The trial court discussed the State’s elections at the end of

the State’s case-in-chief, but other than assuring the court that it could make sufficient

elections as to each count, the State did not make explicit elections until its closing

arguments.

The defendant did not object to the State’s election of offenses at trial and

did not raise the issue in his motion for new trial. Consequently, our review is limited to

plain error review. Tenn. R. App. P. 36(b); State v. Hatcher, 310 S.W.3d 788, 808 (Tenn.

2010).

“Because the election requirement safeguards a criminal defendant’s

fundamental, constitutional right to a unanimous jury verdict, errors pertaining to the

3

The Tennessee Pattern Jury Instructions provides the following modified unanimity instruction

developed from the language in Qualls:

The state has offered proof in its case in chief of more than one act

allegedly committed [by the defendant][by one for whom the state alleges

the defendant is criminally responsible] which the state alleges constitutes

an element of the offense of _________ as charged in Count _______ of

the indictment. To ensure a unanimous verdict, the State must prove

beyond a reasonable doubt the commission of all of the acts described by

the alleged victim [in that particular count] as occurring within the time

period charged in [that count of] the indictment.

Before you can find the defendant guilty, you must unanimously agree that

the State has proven beyond a reasonable doubt the commission of all of

the acts described by the alleged victim as occurring within the time period

charged in [that count of] the indictment.

7 Tenn. Prac. Pattern Jury Instr. T.P.I.—Crim. 42.25(a).

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sufficiency of the prosecution’s election are subject to plain error review.” Knowles, 470

S.W.3d at 424 (citing Burlison v. State, 501 S.W.2d 801, 804 (Tenn. 1973); Kendrick, 38

S.W.3d at 567; Walton, 958 S.W.2d at 726-27 (Tenn. 1997); State v. Clabo, 905 S.W.2d

197, 204 (Tenn. Crim. App. 1995)). “When applying plain error review,” we are mindful

“that the election requirement is merely a means by which to protect the right to a

unanimous verdict. There is no right to a perfect election, and . . . the election requirement

may be satisfied in a variety of ways.” Knowles, 470 S.W.3d at 424. Importantly, “the

election requirement applies to offenses, not to the facts supporting each element of the

offense.” Id.

Here, the record clearly establishes what occurred in the trial court.

Furthermore, we can think of no tactical reason for the defendant to waive the State’s

obligation to elect offenses. We conclude that substantial justice is at stake in this case and

will address whether the State’s elections were sufficient to protect the defendant’s

constitutional rights as to each charged count.

Count 1 - Aggravated Sexual Battery

As to Count 1, the presentment charged the offense of aggravated sexual

battery of a child less than 13 years old by touching the victim’s “primary genital area” “on

or between” June 19, 2013 and June 18, 2016. The State elected the specific act of the

defendant’s touching the victim’s vagina over her clothing in the living room. The trial

court charged the jury that to find the defendant guilty of Count 1, they must consider only

whether when the victim “was approximately nine, ten, eleven, or twelve years old,” the

defendant “touched [her] vagina with his hand on top of her clothes in the living room.”

In the State’s questioning the victim whether the defendant had ever touched

the victim’s vagina over her clothing, the following exchange occurred:

Q: Okay. Did that happen in your bedroom or some other room

in the house?

A: The—the living room. Sorry.

Q: Okay. So there was a time that you were in the living room

with [the defendant]?

A: It would have—I mean, it was . . .

Q: I’m just asking to try to understand. You’ve talked about

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the incident that he touched you on your butt, the first incident.

A: Uh-huh.

Q: Was there a second incident you’re talking about now where

he also touched your vagina in the living room over your

clothes?

A: No. I was saying in general it would just be anywhere.

Like, out of those rooms I would [indiscernible].

[Q]: I’m sorry. I’m—I don’t think I’m understanding.

[A]: I’m trying to think of a way to put this to make sense of

it.

....

A: Okay. I just said “living room” to give him, like . . . Like,

it would have happened anywhere. Like, out of the rooms I

had already described to you, it happened in all of them.

....

Q: Okay. And the touching I’m specifically asking about now

is—is only an instance where he would have touched you on

your vagina over your clothes.

Do you have a specific memory of that happening and where

that would have happened at?

A: No.

It is clear from this exchange that the victim clarified that there was not a

specific incident of touching over her clothes that occurred in the living room and that she

did not recall any specific incident. The evidence did not support the State’s election for

the aggravated sexual battery charge in Count 1 because the victim could not recall any

specific incident. Our supreme court has provided an avenue for the State to pursue

convictions of sexual offenses on generic evidence, see Qualls, 482 S.W.3d at 17 (“[T]he

election doctrine may be satisfied in generic evidence cases by the trial court providing a

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modified unanimity instruction that allows a conviction only if the jury unanimously agrees

the defendant committed all the acts described by the victim.”), but here the State chose to

pursue a conviction by electing a specific incident and did not ask the trial court for a

modified unanimity instruction as required by Qualls. Because the victim testified only

that the defendant generally touched her vagina over her clothing on multiple occasions,

the jury could not have rendered a unanimous verdict as to a specific instance of conduct.

Consequently, the evidence did not support the State’s election, and the election was

insufficient to protect the defendant’s right to a unanimous jury. Because, as we will

discuss below, the evidence was insufficient to support the conviction in Count 1, that

count is reversed, and the underlying charge is dismissed.

Counts 2 and 3 - Rape of a Child and Incest

As to Count 2, the presentment charged rape of a child by vaginal penetration

of a child less than 13 years old occurring between June 19, 2013 and June 18, 2016. Count

3 charged incest related to the same conduct charged in Count 2. The State elected the

specific conduct of the defendant’s digital penetration of the victim in bedroom 1 in 2013.

The trial court instructed the jury that to find the defendant guilty of Count 2, they must

consider only whether when the victim “was approximately nine to ten years old during

2013[,] the same year [the defendant] came to reside within the residence,” the defendant

“put his hand inside of [the victim’s] pants and then put his finger inside her vagina” while

the victim was in bedroom 1. The victim’s testimony established that she lived in bedroom

1 when the defendant moved into the house in 2013 and that she moved into bedroom 2

sometime in 2015. The victim could differentiate specific acts of digital penetration only

by location—one incident in bedroom 1 and another incident in bedroom 2. The victim

could not provide more specific details as to when the incident of digital penetration in

bedroom 1 occurred. The State’s electing that the offense occurred in bedroom 1 is

sufficient to guarantee jury unanimity and protect the defendant from double jeopardy in

Counts 2 and 3.

Counts 4 and 5 - Rape of a Child and Incest

As to Count 4, the presentment charged rape of a child by digital penetration

of a child less than 13 years old, occurring between June 19, 2013 and June 18, 2016.

Count 5 charged incest related to the same conduct charged in Count 4. The State elected

the defendant’s digital penetration of the victim in 2015 in bedroom 2. The trial court

instructed the jury that to find the defendant guilty on Count 4, they must consider only

whether when the victim “was approximately twelve years old during 2015,” the defendant

“came into her bedroom, . . . and he put his hand inside of [her] pants and then put his

finger inside of her vagina” while the victim slept in a bunk bed in bedroom 2. The victim’s

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testimony established that she moved into bedroom 2 sometime in 2015 and that the

defendant digitally penetrated her vagina at some point while she lived in bedroom 2. The

victim could not otherwise provide more specific details as to when the incident of digital

penetration in bedroom 2 occurred. The State’s electing an instance of digital penetration

in bedroom 2 is sufficient to differentiate from the incident that occurred in bedroom 1 as

charged in Count 2 and was sufficient to protect the defendant’s right to jury unanimity

and against double jeopardy violations in Counts 4 and 5. The fact that the victim could

not identify a specific time when the digital penetration occurred does not invalidate the

State’s election.

Counts 6 and 7 - Rape and Incest

As to Count 6, the presentment charged rape by vaginal penetration by force

or coercion, occurring between June 19, 2016 and June 18, 2018. Count 7 charged incest

related to the same conduct charged in Count 6. For Count 6, the State elected the single

act of penile penetration that occurred in bedroom 3. The trial court instructed the jury that

to find the defendant guilty of Count 6, they must consider only whether when the victim

“was approximately thirteen, fourteen, or fifteen years old,” the defendant “came into the

bedroom [3] wearing only his boxers and was holding a beer. [The defendant] instructed

[the victim] to lay on her stomach and removed her clothes. [The defendant] then inserted

his penis into [the victim’s] vagina.” This election was sufficient to protect the defendant’s

right to a unanimous jury verdict as to Counts 6 and 7.

Counts 8 and 9 - Rape and Incest

For Count 8, the presentment charged rape by digital penetration by force or

coercion, occurring between June 19, 2016 and June 18, 2018. For this count, the State

elected the “digital penetrations . . . [that] happened on a nightly basis until [the defendant]

moved out. [The defendant] continues coming into [the victim’s] bedroom [2] during . . .

those ages, 14, 13, and he’s still coming into that bedroom, still sticking his finger inside

of her.” The trial court instructed the jury that to find the defendant guilty on Count 8, they

must consider only whether when the victim “was thirteen or fourteen years old,” the

defendant “continued to penetrate her vagina with his finger on an almost nightly basis

until he left the family home in 2018.” In our view, this election was insufficient to protect

the defendant from double jeopardy; although the State elected the victim’s age as 13 or

14 years old, the victim testified to only one specific act of digital penetration occurring in

bedroom 2, and the jury could have considered the same evidence supporting the

conviction in Count 4. Moreover, the generic evidence of almost-nightly digital

penetrations is insufficient to protect the defendant’s right to a unanimous jury verdict, and

the State did not request the modified unanimity instruction under Qualls. Consequently,

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the election was also insufficient as to Count 9.4 The defendant is entitled to a new trial on

Counts 8 and 9.

Count 10 - Sexual Battery by an Authority Figure

As to Count 10, the presentment charged sexual battery by an authority figure

of a child 13 or older but less than 18 by touching the victim’s “primary genital area”

between June 19, 2016 and June 18, 2018. For this count, the State made the following

election:

[T]ake the year 2015.5 That’s the last year that he’s in the home

that’s distinct from any previous count we’ve asked you to look

at. [The victim] told you [the defendant] continues to come

into the bedroom, continues to touch her vagina. . . . [The

defendant is] married to [the victim’s] mother. He’s a

stepparent . . . [with] the right to discipline.”

The trial court instructed the jury that to find the defendant guilty on Count

10, they must consider whether when the victim “was approximately 15 years old,” the

defendant “continued to penetrate her vagina with his finger on an almost nightly basis

until he left the family home in 2018” and whether the defendant was the victim’s

“stepparent and had parental authority over [her] at the time.” Again, we find this election

insufficient to protect the defendant against double jeopardy and to ensure a unanimous

jury verdict. Because the victim could not differentiate specific instances of digital

penetration other than by the two bedrooms, the jury could have considered the same

evidence that supported the conviction in Count 4, and the generic evidence that the digital

penetration occurred on an almost-nightly basis is not sufficient to ensure jury unanimity

as required by our constitution. The defendant is entitled to a new trial on Count 10.

Although we have concluded that the defendant is entitled to a new trial on

Counts 1, 8, 9, and 10, we will consider the sufficiency of the evidence as to all counts to

facilitate further appellate review.

4

The election for Count 9 may be inconsistent with the presentment. The presentment alleges that

the act in Count 9 occurred “on or about June 19, 2016.” Unlike every other count of the presentment,

Count 9 does not allege a range of time, but is essentially time specific. See McCullough v. State, No.

M2004-02430-CCA-R3-PC, 2006 WL 1896362, at *6 n.2 (Tenn. Crim. App. July 7, 2006) (“[T]he

petitioner’s indicment was essentially time specific, alleging that the offense was committed on or about

July 28, 1998.”). The State’s election, however, offers a range from 2016 to 2018. In essence, it expands

the time span set forth in the presentment.

5

It appears that the State misspoke and meant to say 2018, which was the year the defendant moved

out of the victim’s home. This error, however, further convolutes the State’s attempted election.

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III. Sufficiency of the Evidence

Sufficient evidence exists to support a conviction if, after considering the

evidence—both direct and circumstantial—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. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319 (1979);

State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011). This court will neither re-weigh the

evidence nor substitute its inferences for those drawn by the trier of fact. Dorantes, 331

S.W.3d at 379. The verdict of the jury resolves any questions concerning the credibility of

the witnesses, the weight and value of the evidence, and the factual issues raised by the

evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Significantly, this court

must afford the State the strongest legitimate view of the evidence contained in the record

as well as all reasonable and legitimate inferences which may be drawn from the evidence.

Id.

A. Aggravated Sexual Battery

As charged in Count 1, aggravated sexual battery is “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.” T.C.A. § 39-13-504(a)(4). “‘Sexual contact’ includes 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

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

gratification . . . .” Id. § 39-13-501(6). “‘Intimate parts’ includes the primary genital area

. . . of a human being . . . .” Id. § 39-13-501(2) (2010).6

The evidence considered in the light most favorable to the State does not

really establish an offense. The victim could not recall any specific instance, but said that

the offense occurred when she was “both” younger and older than 13 and “in all of the[]”

rooms in the house. We conclude that this evidence is not sufficient to support the

defendant’s conviction for aggravated sexual battery in Count 1. That conviction is

reversed, and the underlying charge is dismissed.

B. Rape of a Child and Related Assault Convictions

As charged in Counts 2 and 4, “[r]ape of a child is the unlawful sexual

6

The definition of “intimate parts” was expanded in July 2013, but the additional terminology is not

relevant here. At all times relevant to this case, the definition included “the primary genital area” as charged

by the State. See T.C.A. § 39-13-501(2) (Supp. 2013).

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penetration of a victim by the defendant . . . if the victim is more than three (3) years of

age but less than thirteen (13) years of age.” Id. § 39-13-522(a) (2010). Our Code defines

“sexual penetration” as “sexual intercourse . . . or any other intrusion, however slight, of

any part of a person’s body or of any object into the genital or anal openings of the victim’s

. . . body.” Id. § 39-13-501(8).

As relevant to the defendant’s convictions of the lesser included offenses of

assault in Counts 3 and 5, “[a] person commits assault who . . . [i]ntentionally or knowingly

causes physical contact with another and a reasonable person would regard the contact as

extremely offensive or provocative.” Id. § 39-13-101(a)(3) (2010).7

The evidence considered in the light most favorable to the State established

that in 2013, when the victim was 9 or 10 years old, the defendant came into bedroom 1

where the victim was in bed and touched her inside her vagina with his hand. This evidence

sufficiently supports the defendant’s conviction of child rape as charged in Count 2. This

evidence also sufficiently supports the conviction of assault as charged in Counts 3 and 5.

As we discuss below, Count 3 must merge into Count 2, and Count 5 must merge into

Count 4.

C. Rape and Related Assault and Incest Convictions

As charged in Counts 6 and 8, “[r]ape is unlawful sexual penetration of a

victim by the defendant or of the defendant by a victim” and “[f]orce or coercion is used

to accomplish the act.” T.C.A. § 39-13-503(a)(1). As charged in Count 9, “[a] person

commits incest who engages in sexual penetration as defined in § 39-13-501, with a person,

knowing the person to be, without regard to legitimacy . . . [t]he person’s . . . stepchild.”

Id. § 39-15-302(a)(1). Our Code defines “sexual penetration” as “sexual intercourse . . .

or any other intrusion, however slight, of any part of a person’s body or of any object into

the genital or anal openings of the victim’s . . . body.” Id. § 39-13-501(8).

As relevant to the defendant’s conviction of the lesser included offense of

assault in Count 7, “[a] person commits assault who . . . [i]ntentionally or knowingly causes

physical contact with another and a reasonable person would regard the contact as

extremely offensive or provocative.” Id. § 39-13-101(a)(3) (2010).

Taken in the light most favorable to the State, the evidence established that

in 2016, the defendant had the victim go to bedroom 3 and while she was in bed trying to

7

The assault statute was amended several times during the span of dates at issue in this case;

however, the relevant subsection did not change. See T.C.A. § 39-13-101(a)(3) (2010), (Supp. 2013),

(Supp. 2016), (Supp. 2017).

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sleep, he entered the room wearing only his boxers and put his penis in the victim’s vagina.

This evidence is sufficient to support the defendant’s convictions in Counts 6 and 7. On

another occasion, in 2015 or later, the defendant came into bedroom 2 where the victim

was sleeping and placed his finger inside her vagina. The evidence also showed that the

defendant married the victim’s mother in 2017, becoming the victim’s stepfather. This

evidence sufficiently supports the defendant’s convictions of rape in Count 8 and incest in

Count 9.

D. Sexual Battery by an Authority Figure

As charged in Count 10, “[s]exual battery by an authority figure is unlawful

sexual contact with a victim by the defendant” when “[t]he victim was, at the time of the

offense, thirteen (13) years of age or older but less than eighteen (18) years of age” and

“[t]he defendant had, at the time of the offense, parental . . . authority over the victim and

used the authority to accomplish the sexual contact.” T.C.A. § 39-13-527(a)(1), (3)(B).

“‘Sexual contact’ includes 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 touching can be reasonably construed as being for the purpose of

sexual arousal or gratification . . . .” Id. § 39-13-501(6). “‘Intimate parts’ includes the

primary genital area . . . of a human being . . . .” Id. § 39-13-501(2) (2010).

The evidence, taken in the light most favorable to the State, showed that the

defendant moved into the victim’s home in 2013 and had authority to instruct and discipline

the victim and her siblings. While living in the home, the defendant entered the victim’s

bedroom on an almost nightly basis until he moved out in late 2018 or early 2019, and

inserted a finger into her vagina. This evidence is sufficient to support a conviction for

sexual battery by an authority figure.

III. Merger

Another issue not raised by the parties but subject to plain error review is

whether the defendant’s convictions for assault by extremely offensive or provocative

contact as lesser included offenses of incest in Counts 3, 5, and 7 and the relative

convictions of rape of a child in Counts 2 and 4 and rape in Count 6 violate the principles

of double jeopardy. In supplemental briefing, the defendant argues, and the State concedes,

that the convictions violate the principles of double jeopardy. The defendant contends,

however, that the assault convictions should be dismissed, and the State argues that the

assault convictions should merge into the related convictions of rape of a child and rape.

We need not tarry long over whether the defendant’s dual convictions in

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Counts 2 and 3, Counts 4 and 5, and Counts 6 and 7 violate the principles of double

jeopardy. The State concedes that they do, and it is well-established that assault by

extremely offensive or provocative contact is a lesser-included offense of rape of a child,

State v. Elkins, 83 S.W.3d 706, 711 (Tenn. 2002), and rape by force or coercion or without

consent, State v. Prentis Lee, No. W2015-01538-CCA-R3-CD, 2016 WL 6915582, at *25

(Tenn. Crim. App., Jackson, Nov. 23, 2016) (citations omitted). Here, the defendant’s

convictions for assault by extremely offensive or provocative contact in Counts 3, 5, and 7

arise from the same conduct giving rise to the convictions in Counts 2, 4, and 6

respectively. The proper remedy for dual convictions of which one is a lesser included

offense of the other is merger rather than dismissal of the lesser offense. See State v.

Davidson, 509 S.W.3d 156, 217 (Tenn. 2016) (“Merger is required when a jury returns

guilty verdicts on two offenses, one of which is a lesser-included offense of the other.”

(citation omitted)). Consequently, the defendant’s conviction in Count 3 must merge into

Count 2, Count 5 must merge into Count 4, and Count 7 must merge into Count 6. We

remand the case to the trial court for entry of corrected judgments in Counts 3, 5, and 7

reflecting the proper merger of convictions.

IV. Other Errors

We also note clerical errors in the judgments for the defendant’s assault

convictions in Counts 3, 5, and 7. This court “may at any time correct clerical mistakes in

judgments . . . arising from oversight or omission.” Tenn. R. Crim. P. 36. The defendant

was convicted of assault by physical contact that “a reasonable person would regard . . . as

extremely offensive or provocative,” T.C.A. § 39-13-101(a)(3), which is designated as a

Class B misdemeanor, id. § 39-13-101(b)(1)(C). The judgments for these convictions

misidentify the conviction as being assault by threat of bodily injury, which is a Class A

misdemeanor. Id. § 39-13-101(a)(2), -101(b)(1)(B). Not only do the judgments reflect the

incorrect subsection of the assault statute as the basis of the conviction, but the trial court

erred by imposing a sentence reserved for Class A misdemeanors. See id. § 40-35-

111(e)(1). Because the trial court imposed the maximum sentence available for a Class A

misdemeanor, we modify the sentences for Counts 3, 5, and 7 to six months’ incarceration,

the maximum sentence allowed for a Class B misdemeanor. See id. § 40-35-111(e)(2).

Accordingly, the judgment of conviction in Count 1 is reversed, and the

underlying charge in that count is dismissed. The judgments of the trial court as to the

convictions in Counts 2, 3, 4, 5, 6, and 7 are affirmed, the defendant’s convictions in Counts

8, 9, and 10 are vacated and remanded for a new trial, and the case is remanded for entry

of corrected judgments reflecting the proper assault convictions and sentences and merger

in Counts 3, 5, and 7.

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__________________________________

JAMES CURWOOD WITT, JR., JUDGE

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