# FILED November 10, 1998 Cecil W. Crowson Appellate Court Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT NASHVILLE JANUARY SE SSION, 1998 STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9701-CR-00024 ) Appellee, ) ) ) DAVIDSON COUNTY VS. ) ) HON. THOMAS H. SHRIVER PAS CHA L HYD E, JR., ) JUDGE ) Appe llant. ) (Attempted 1st Degree Murder, ) Aggra vated R ape, As sault)
ON APPEAL FROM THE J UDGMENT OF THE CRIMINAL COURT OF DAVIDSON COUN TY
FOR THE APPELL

ANT : FOR THE APPELLEE : TERRY J. CANADY JOHN KNOX WALKUP 211 Printer’s Alley

Building Attorney Generaland Reporter Suite 400 Nashville, TN 37201 DARYL J. BRAND Assistant Attorney General 425 5th Avenu e North Nashville, TN 37243-0493 VICTORS. J OHNSON Distri ct Attorney General MARY HAUSMAN Assistant Distri ct Attorney General Washington Square, Sui te 500 222 2n d Aven ue, No rth Nashville, TN 37201-1649
OPINION FILED ________________________ AFFIRMED IN PART; REVERSED IN PART; REMANDED-2-

DAVID H. WELL ES, J UDGE-3- 

# OPINION

The Defendant, PaschalHyde, Jr., appeals as of right pursuant to Rule 3 of the Tennessee Rules of Appellate Procedure. He was convicted by a Davidson Coun ty jury of thre e coun ts of aggra vated ra pe, three counts o f assault, and two counts of attempted fi rst-degree murder. He was senten ced to concurrent

terms of l ife for

each convicti on for aggravated rape. He was sentenced to eleven months and twenty-nine days for each count of a ssault, to be served concurrently with each other and wit h his convic tionsfor aggravated rape. For the two at

tempted fir

st-degree murder

convicti ons, the Defendant was sentenced to twenty-five year s on each countto be served consecutively to each otherand to the oth er con victio ns. Thus, his effective senten ce is life plus fifty years. The Defendant appeals both his c onvicti ons and sentences, raising t he f ollowing issues: ( 1) That the evi dence was insuff icient to convict

him of aggravated rape; (2) that the t rial cour t erred by

denying the Defen dant’s moti on to sever the offenses ; (3) that cou nts one , two and three in th e indictment are invalid because they fai led to speci fy the requisite mens rea for aggravated rape; and (4) that

the tri al court erred by misapplyi ng s entence en hancem ent factors and ordering conse cutive se ntence s. After a car eful revi ew of the re cord in this case, we affi rm in part and r everse and remand in par t the judg ment of the t rial court.

The Defendant and the primary vict im in thi s case, Nicol e Bowman, had a lengthy and disturbing history together prior to the prosecut ion of theDefendant-4-

on these numerous charges. The Defendant was her stepfather. Teresa Bowman, the vict im’s mother, lived wit h the Defe ndan t whe n Nico le was sma ll. Teresa Bowman had two childr en fathered by

the Defendant, Antonio Hyde and Felicia Bowman. Nicole recal led that t he Defendant lived with them when she was very li ttle and called her n ames, such as “blac kie” and “ ugly .” The Defendant would grab Nicol e b y her right ar m and talk “di rty” to her. At age three, four, or fiv e the D efend ant be gan to vagin ally pe netrate Nicole with his indexand m iddle finge rs. Som etimes she wo uld not co operate and refu se to open her legs and t he Defendant would yel l at her, choke her, smother her, and p ut his ha nd over her mouth. Nicole would cr y and tellthe Defendant t hat the penetrati on with his fingers hurt he r. The D efend ant pe netrate d her in this fashion approximately t hree or four times per week. After t he act was completed, the Defe n dant would hug Nicol e and would ask if she wanted anything. These acts would occur at night because her mother worked at night. The Defendant would accost the victim in her bedroom and t he bathroom. The Defendant would kiss he r, wou ld try to p ut his p enis in her m outh, a nd wo uld lie on top of h er. The Defe ndan t wore unde rwea r and w ould re mov e Nico le’s underwearand rub his peni s against her unt il h e reac hed a clima x. He w ould penet rate her with his f ingers. Fel icia Bowman would sleep in the same room with Nicole and would of ten wake up in t he night and see t he Defendant in t he roo m. Teresa Bowman often took Fel icia out with her and l ef t Nicole with the Defen dant.1 In her tr ial t estimony, Ni cole Bowman first stated t hat the i ncident occur red when she was fift een. In her

later testimony, she stated tha

t she was eighteen when t he incident occurred . -5- The Defenda nt lived with Nicole u ntil she was thirteen . After h e left, he
w ould continue to sen d for her or com e to her hous e when h er mother wa s working. Nicole recalledthat thi s would happen parti cularly on special occasions like the Defendant’s birt hday or Father’s D ay bec ause he w ould remind her “I know yo u gonna give me some.” The vi ctim never told anyone because t he Defendant threatened to killher or her mother . Nicole once attempted to tell her motherwhen Teres a Bow man was g oing to the lau ndrom at with Nicole ’s sister, Felicia
. Nicole cri ed and begged to go, but her mother l eft her at the hou se with the D e fenda nt. The Defe ndan t then s exua lly pen etrated the vict im an d ma de it hurt as puni shment because she had not cooper ated.

When Nicole was eighteen 1 , she was dati ng a boy and hermoth er had told the Defendant. The Defe ndant insi sted that Nicole tel l him what she di d with her boyfriendand she admitted that she had been hav ing sexual rel ati ons wit h hi m. The Defendantslapped her in the fa ce and pushe d her he ad to the win dow while they were traveling i n his car. He said she was a slut. He stated: “ You supposed to be a Christi an. You ain ’t nothing b ut a whor e. You just like y our m ama . Y’all ain’t amount to nothi ng -- y’al l not gonna amount to not hin g, never wil l be
n othing.” He took her to h is fri end Fanny Lee’s house and took he r into th e bathroom and pushed herin the t ub. The Defendant spit in her face and called her n ames. The D efendant later had sexual i ntercourse wi th the vi ctim. She-6-

resistedand the Defendant smother ed and choked her

and forced h er legs apart and penetrated her

with his peni s. Such en cou nters continued with f requency until Ni cole was twenty- one years old.

Nicole graduated from high sch ool in June of 19 92 and w orked at Krog er, and then L ockh eed S uppo rt Syste ms in Nash ville. W hen N icole recei ved her paycheck, she would have to sur render the money to the Defendant

imm ediate ly because he told her sh e owe d it to him because he had taken car e of her allher life. The De fendant would t hen distri bute half of the money to Ni cole. The Defendant had also cosi gned an auto loan f or Nicole. Nicole made allthe paym ents for the car

and the Defendant us ed t he mon ey she ga ve him eve ry week to pay the note on his red pic kup truck . During th is time, the De fendant lived with the woman named Fanny Lee. Ms. Lee owned the home and pai d the bills, so the Defendant l ived there for free. The Defendant made Nicole keep her carat Ms. Lee’s house and she could only use it to d rive to wor k, to churc h, and occa siona lly to the park on Sunday afternoons . The Defendant told Nicole t hat her parents sho uld know where sh e was at all times and she ca rried a pager. The Defe ndan t knew her w ork sc hedu le and th e am ount o f time it would ta ke to get there and back home. Ni cole had no s ocial l ife a nd did not have close friends.

Nicole started dat ing Claude Rucker shor tly befo re the acts

which resulted in the attempted murder convict ions. She would s neak to see him between 9: 30 when she got off

work and 10:30 when her si ster got off wor k at Lockheed-7-

because she drove h er sister to w ork and had to wait unti l her shi ft ended. The Defendant was unaware of her rel ationshi p with Mr. Rucker . On November 6, 1994, Nicole attended church with h er family, includi ng the Defendant who at that ti me was an assistant minister. She noticed t hat he was acti ng strange and was not reading the Bible, but sitti ng there li ke he had somethi ng on hi s mind. As Nicole and h er fam ily were leaving t he church, a man named Lawon had his arm around her shoulder and they were disc ussing his get ting ajob atLockheed. The Defendant essen tially broke the conver sation up and told Nicole a nd her sister Felicia to go home. At home, the Defendant confronted Ni cole, cl aiming that she had an “atti tude problem.” She told the Defendant that he had thepro ble m, not her, and she walkedoff. She st ated that s he just coul d not take i t anymore.

Later that

even ing, in th e Def enda nt’s pre senc e, Nico le and Felicia we re ar guing abou t late fee s for a re nted v ideo ta pe. He started criticizing Felic ia , statingthat she wasselfish and would n ot amo unt to any thing. Felici a blurted out something about Nicole usi ng up gas in the car. The Defendant jerked Nicol e up by the coll ar and threw her on a chair. Felici a ran out and t he D efen dant to ld their brothe r Tony to unp lug the teleph one. H e told Nicole to park h er car in his yard and co mplai ned aga in of her attitudeprob lem. He threaten ed to tear up the car. Me anwh ile, Felicia ha d called th e police. N icole initially sou ght a wa rrant, but did not ge t one at tha t time. She th en de cid ed to s tay at C laude Ruck er’s house. The next day, the Defend ant drove he r to work because he would not l et her use her car. Nicole told Erica Fri erson, her f riend at Loc kheed, that she was going to ridehome with her an hour early and get

her clothe s. Her mother saw-8-

thatshe was home early and asked whether the Defendant knew this. Nicole told her mother she was stayi ng the night with Ms. Fri erson, but s he went to Claude Ruck er’s house. Ms. Fri erson drove Nicol e to work on Tuesday, November 8, 1994.

That morning, Mr. Rucker went over to his mo ther’s house to check on her and the Defendant was t here. Mr. Rucker had noticed t he Defendant hanging around at his mother’s house a lot during the p rior week and felt that he was looking for some inform ation. Mr. Rucker volunteer ed to talk

with theDefendant and told hi m that he was dati ng Nicole. TheDefe ndan t initially indicated that he had no prob lem w ith them d ating, but th en laun ched into conc erns a bout N icole’s lying to hi m and hi s att itu de re fle cted rage . TheDe fen dant refused to shake hands with Mr. R ucker w hen he left.

Rucker thought that

the Defendant went to Lockheed when he starte d receivi ng p ages w ith the nu mber 911. Meanwhile, Ni cole’s manager at Lockheed, William Brady, informed her t hat the Defendant was there and wanted to speak with her. Although she was rel uctant, s he clocked out and went outside. Erica Frierson told Brady t hat it was not a good situat ion. Brady went outside and observed the Defendant tellingNicol e t hat she needed to apol ogize to her mother. The conversati on escalated and the De fenda nt tried to force N icole into a blue B lazer. A s Brad y turne d to go inside and te ll his employees to cal l the police, Erica

Frierso n cam e out a nd wa lked u p beh ind the Defe ndan t. She to ld Nicole that she di d not have to go wi th the De fendant. He t urned around and-9-

threw her to th e pavement. Nicol e scrambled across the car seat and got out throug h the driver

’s side door . Both Nicol e and Frierson head ed toward the Lockheed buildi ng. Brady told t hem to get insi de and told t he Defendant that he was on privateproperty and t hat he had to l eave. The Defendant s at there f or awhile a nd then left.

Claude Rucker and his si ster went to Lockheed and met the Defe ndan t’s vehic le on the road. The Defendant turned around and came back, but when he saw that thepolice were there, h e did n ot stop . Ruck er’s sister got nervous and told him sh e wa nted t o leave and he agreed to take her hom e. As they w ere traveli ng on Polk Avenu e to Fes slers Lan e, the De fendan t fo llowed them and drove beside Rucker’ s car. He sai d: “You need to go get Nicole and bring her

to me where I can tal k to her and you need t o get her now. I t’s done got serious and it’s going to get seriouser (sic)than that. ” Rucker tol d the Defendant that he had earl ier offered to com e with N icole to talk to h er mo ther an d that h e wou ld see what he could do. They proce eded in traffic to a traffic light at Murfree sboro Road and the Defendant was appr oximately t hree cars in front. The Defendant got out of hi s car and told Rucker t hat he had to bring Ni cole to hi m that day. The Defen dant left and R ucker re turned to Lockh eed. Rucker went with Ni cole and Erica Frie rson to the police de partme nt to obtain warran ts for assa ult.

Rucker and Nicole stayed out th at evening unt il approx imately 11: 00 or 11:15. Whe n they return ed to R ucke r’s house, they noticed Nicole’ s car, a Buick LeSabre, parked on thestreet wi th the Defendant ducked down in theseat. They-10-

kept driving and called t he police f rom a gas stati on for an escor t home. The Defen dant w as gon e whe n they re turned.

The next day, N ovem ber 9th , Ruck er and Nicole went out in t he morning to take Rucker’s

sister to work. When they r eturned, the Defendant was at the house. He asked to speak wit h Nicole and approa ched their car and said t hat he did not have a weapon. They al l stood on t he sidewalk and t he Defendant asked why Nicole was lying and disresp ectful of her moth er. He told her to go ho me with him and the conversati on then conti nued. Rucker reached in the car and got Nicole ’s purse , which conta ined c ards fro m the police depa rtmen t, as we ll as his carkeys. He tol d the Defe ndan t that the y wou ld go with him, but that he needed to go into t he house for a minute. Nicole andRucker went into the h ouse and Rucker called the poli ce. While t hey were waiti ng, Rucker wentoutsid e and told him that he had cal led the pol ice and they woul d al l go toget her to str aighten thingsout. Rucker went insi de and locked thedoor because they di d not trust the Defen dant. Soon afterwards, the Defendant knocke d on t he door and they l et him in. The Defendant grabbed Ni cole by the right arm and told her to “come on” and they both went into the bed room. H e to ld her “Justput my package in an envelope and stick it in the mailbox at t he house.” Nicol e asked what he meant and he pulled out

a wad of cash. She told him that she did not

have to give him money anym ore. The Defen dant w hispere d in her ea r: “Don’t w orry abo ut it. When I see you I’m gonna shoot you down like a dog .” The D efenda nt wen t into the livi ng room and said “Claude, you can bring her home when you get ready. You’ve got to come out. You’ve got to go to t he store or so mew here. . . . just-11-

remember that I’ m gonna shoot you down lik e a dog .” Claude followed t he Defendant onto the porc h and the Defendant said: “Claude, you get i n the way, I’m go ing to s hoot y ou do wn like a dog , too.” W hen th e Def enda nt reac hed h is car, he said “C laude, do n’t you cro ss me .” Rucke r and N icole obta ined wa rrants for threatening t heir lives.

The next morning, November 10, 1994, Rucker and N icole dec ided to go out for breakfast. Mr. Rucker had parked his car

around the corner

in hopes that the Defendantwould not know its locati on. The two walked to the car and s at in it while the engi ne warmed up. Nicole said, “Here comes Junior, “ referri ng to the Defe ndant. The Defendant pull ed up quickly in his red Ford king cab picku p truck. The Defendant opened the truck door and approached wieldi ng a shotgun. Rucker put his car in rever se , i t hesitated a minute, and the Defendant started shooting. The c ar sw erved and h it a telep hone pole. R ucke r could not se e well because he had blo od on h is face. He opene d his car d oor and saw th e Defendant ejecti ng the spentshell casin gs as if he were g oing to reload. Rucker tookoff runn ing an d the D efend ant sa id “Uh -huh, I to ld you I was g oing to kill you.” Ruckerran to a w oman standing in her doo rway w ith a cellul ar phone and asked her to cal l the pol ice.
Fanny Lee was taking a shower between 8:00 and 8:30 a. m. when she heard some one co me into the house and stand by the bathroom door for a few minutes, then leav e. She th ought it w as the D efenda nt. Appro ximate ly twenty minutes later, the po lice cam e to her d oor. She saw tha t t he Defendant’s bl ue-12-

Blazerwas not parked ther e. She stated that theDefendant owned two guns and ke pt them at her house. On the morning of November 10t h, the shotgun wa s missing. She admitted t hat her nephew would someti mes borrow a rif le, but s he was not certai n as to the di fference bet ween a shotgun and ri fle.

The shotgun blasts s hattered t he front wi ndshield of the car. Claude Rucker suffered injuries, including shotgun pell ets and glass in his hea d, face, left
arm and s hould er. His e ar wa s split and had to be stitche d bac k toge ther. N icole Bowman received m assive injuri es to her face. She was hospital ized from November to January. She lost vi sion in her right eye, there was damage to the roofof her mouth and her teeth, and she had to be fed t hrough a tube. She must undergo reconstructive surger y of her nose and face. When she was released from the hospital, she was st ill being fed t hrough a tube, had a suction machine and was fed oxygen t hrough her t rachea . Sh e st ayed a short whil e with her mother, but was rehospitalized bri efly. When she was released, she went to live with Fanny Lee.

At trial , Nicole r

ead letter

s that she had written to her mother in 1991 and in 1989 or 1990, alluding t hat her relati onship with the Defendant was negative and that he had “done” thi ngs to her and t hat he had an “evileye” even if he was a church deacon. The l etters r evealed thoughts of suici de and Nicole pl eading with her mo ther to listen a nd und erstand her. She alluded to something “eating me up on the ins ide bad ly.”-13- At tr ial, Ni cole’s mother , Teresa Bowman, test ified on behalf of the Defen dant. She admitted that when she lived wi th the Defendant , he made her give him the money she earned at her job. She never saw the Defendant
sexu ally abusing her dau ghter. Sh e got a letter from Nicole i n 1991, butdid not think she was being raped. When Nicole started staying overnight with Claude Rucker, Teresa Bowman asked the Defendant to bring her home on Tuesday, November 8th. On cross- examination, Teresa Bowman adm it ted that s he understood that the letters written by h er daught er meant that s he was being sexua lly abuse d by the D efenda nt.

The Defen dant pre sented a som ewha t diff eren t acco unt of th e eve nts in question. The Defendant test ified t hat he carried a twenty-gauge shotgun for his protecti on. He stated that he went to Lockheed on November 8t h at Teres a Bow man ’s behes t to ask N icole to come home. He testified that Erica Frierson grabbed him first

and that he j ust pushed and she fell. He testif ied that he went to Claude Rucker’s mother’s house later that day t o pick up a payment for hitt ing a “number” because Rucker’ s mother paid out winnings. On November 9t h, the Defendant went t

o chec k on Ni coleat Ruc ker’ s hous e. Hes tated that Rucker warned him no t to start anyth ing. The Defendant fel t lik e Rucker was threatening h im. He testif ied that Rucker sold drugs on Green St reet. Ruc ker told th e Defendant that he was dating Nicol e. The Defendant stated that he kept Nicole ’s carat his house because it had been broken into at her house. He would clean the car and had the br akes repaired, and once found aba g of marijua na in the-14-

car. He con fronted N icole, wh o denie d using m arijuana. H e also w anted h er to pay a ce llular telepho ne bill that sh e had “ru n up.”

The Defendant testified t hat on November 10th, he went to the cleaners, gave someone a ride, then we nt to Rucker’s house. He saw Rucker sitt ing in a car, but not N icole. He s tarted to ge t out of the tru ck and th ought Rucker was reaching under the seat for a weapon. He got his shotgun out

and shot at t he car. The D efenda nt wen t home , left his truck there and drove aw ay in his Blazer. He turn ed him self in three days late r.

On cross -examinat ion, the Defendant denied that he exer ted controlover Nicole Bowman and that she had to report to hi m whenever she went anywhere. The Defendant test ified t hat Nicole voluntari ly had him hold h er money for her because she spent a lot . He denied making Fanny Lee o r any of the children give him mone y. He admitted that he lived wi thout payi ng expenses at Fanny Lee’s house and that he used t he money he got to pl ay the numbers and to buy clothesforthe c hil dren. He st ated that he use d his

own money to gamble. The Defendant denie d callin g Nico le “darkie.” He denied that he lived with Teresa Bowman during 1979 through 1981. He denied hitti ng Nicole, but admitted t hat he may have “who oped”her o nce or twi ce. Hedenied anysexua l contact w ith Nicole. He testified t hat Nicole made up all of the al legations, but admitted that he assau lted her. He de nied that h e tried to throw Nicolein his car at Lockheed and said that

the witnesses

wer e lying. The Defendant stated that he was concerned for Nicol e and that shoot ing her wa s an accide nt. He testified that h e-15-

shot only o nce, e ven th ough there w ere tw o hole s in the ca r’s windshield. The Defendant s tated that he left the shotgun in hi s truck, but the gun was never recovered.
During the January term of 1995, a Davids on County grand jur y issued a five-count

indict ment against t he Defendant for assault agai nst Erica Frierson, two assaults agai nst Nicole Bowman, and the attempted first degree murderof Nicole Bowman and Claude Rucker. A supersedi ng indict ment was issued fr om the April, 1995, term, addi ng counts on e through eight of aggravated rape includi ng the aforementi oned offenses i n counts nine throug h thirteen. Subsequently, the tri al court di smissed counts four through eight for aggravated rape because the indi ctments were iss ued beyond the appli cable stat ute of l imitatio ns for thos e offen ses. C ount o ne for a ggrav ated ra pe be twee n July through December, 1979, count two for aggravated rape between January 1 and December 31, 1980, and count three for

aggravated rape b etween January 1 and December 31, 198 1, were tried along with counts nine t hrough thirteen regarding the events that

occurred in November, 1994. The Defendant was convicted of three counts of aggr avated rape, t hree counts of assault, and two counts of attemptto commit fir

st-degree murder . He now appeals both hi s convicti ons and sentences.

I.-16- As his fi rst iss ue, the Defendant argues that

the evidence was insuffi cient to support the guilty verdi cts for a ggravated rape. However, during our examination of the re cord in this cas e, it app eared that pla in error precluded us from such a revi ew of the evidence.
Although the Defenda nt did not raise the issu e on appe al, the record reflected that the S tate did no t el ect the of fenses on which to rely i n convicti ng the Defendant of t he aggravated rapes which occurred i n 1979, 1980, and 1981. This Court may recog nize a n issue for con sidera tion wh en it ap pears as pla in error. Tenn. R . Crim. P . 52(b); State v. Walton , 958 S.W.2d 724 (Tenn . 1997). An error af

fecting “the substant ial ri ghts of an accusedmay be noticed at any ti me . . . w here nece ssary to do su bstantial justice.” Id . The Defen dant here requested and received a bill of particulars, but this added lit

tle speci ficit

y to the charge of mult iple acts of aggravated rape.
During our init ial revi ew of t he recor d, it be came appa ren t t hat someof the proc eedings in the t rial cour t had not been t ranscribed andmade a pa rt of th e record on appeal. We therefore gave the parties t he opportunit y to supplement the record if necess ary and to file supp lemental briefs o n the issue of the failure of th e State to elect the o ffenses u pon w hich it relied fo r convictio n. I n it s supplemental brief, the Sta te concedes that the failure to elect cons titutes error, but argues that in this ca se the er ror is harm less. We do not beli eve that t he error is ha rmless beyon d a reas onable doubt.-17- The doctrine of election applies to crim es of a sexua l nature where there have been s everal se parate in cidents o f sexual a ssault. B urlison v . State , 501 S.W.2d 801 (Te nn. 197 3). Burlison holds that in these cases

it is the duty of

the trialjudge to require the State to make an electi on at the cl ose of its case-in- chief as to the sp ecific of fense s the S tate w ishes to rely on for con viction. Id . at 804. The rule stem s from a n early T ennes see ca se, Jamis on v. Sta te , 9 4 S.W. 675 (1906), that requi red the State to elect the specif ic offen ses involvi ng charges of carnal knowledge of a female between the ages of twelve and eighteen years . Burlison cites t hree fundamental reasons for an electi on:

First, to enable the defendant to prepare f or and make his defense to the sp ecific charge; second, to protect him from double j eopardy by individual izati on of the issue, and third, so thatthe jury' s verdict may not be a matterof choice betw een offense s, some juro rs convicting on o ne offense a nd others, ano ther. Burlison , 501 S.W .2d at 803
.
The m ost seriou s conce rn of these three is the third require ment: In practi ce, however, el ection at the end of the s tate's proofdoes lit

tle to ai d the defendant in prepar ing his defense. A defendant i s obviously bet ter se rved by requestinga bill of pa rticulars before trial, pursua nt to Tenn. R. Crim . P. 7(c). See generally State v. Hicks, 666 S.W.2d 54 (Tenn. 1984) . Moreover , the second concern is largely moot, because an accused i s protected from double j eopardy for the typeof offense or offenses cha rg ed dur ingtheent ire periodof t ime covered in the indictm ent. See State v. Hardi n , 691 S. W.2d 578, 580-81 (Tenn. Crim . App. 1985 ). Th e third Burlison

rational e addresses the most s erious concern: the well- establi she d righ t under o ur state constit ution to a unani mous j ury verdic t before a criminal c onviction is impos ed.-18-

State v. Shel ton , 851 S.W .2d 134 , 137 (Te nn. 199 3).
The Defendant was charged wi th aggravated r ape; testi mony concerning such behavior during the ti me period specif ied in t he indict ment is rel evant and admissible. State v. Ri ckman , 876 S.W.2d 824, 828- 829 (Tenn. 1994). Although this evidence was admissi ble, the t rial court err ed in all owing the state to present this evidence wit hout requiring an elect ion as mandat ed by B urlison
. Rickman 876 S.W.2d at 829. Our supreme court has reaffirmed that the t rial court “ take prec aution s to ensure th at the jur y deliber

ates over t he particul ar charged offense, instead of

assembling a ‘ patchwork verdi ct’ based on t he differ ent offensesin evidence.” Tidwe ll v. State , 922 S.W.2d 497 , 501 (Ten n. 1996 ). A primary concern in assuring a unanimous jury ve rdict is when multiple inc idents have occurred, and a general time frame has been drafted in th e indictm ent. Id. “[I]t is quite evident t hat there i s no apparent means to different iate among variouscounts of t he sam e of fense. Addit ionall y, the i ndictments pr ovide no means to enable a fact-fi nder to match a specific c onduc t to a specific count.” Id.

In the case sub judice , the vict im testi fied that she was raped by digi tal penetrati on on multipl e occasions over a period of years. She stated that the rapes occurred wher

evershe was livi ng and that t hey occurred in her bedroom or in the bathro om. Finally, the victim testified that these acts occurred “every day” or “three or four t imes a week” in 1979, 1980 an d 1981. She did not describe any partic ular event with specifi city. We believe that we must consi der-19-

this an example of the “grab bag” that our supreme court warned agai nst in Tidw ell :

This approach, in our v iew, is akin to a " grab-bag" t heory of ju stice. To illustrate the operati on of this theory, i n any given case the Sta te cou ld presentproof on as many offenses withi n the alleged peri od as it chose. Because all such offens es will have b een "pro ven," the ju ry may , in effect, reach into the brimming bag of of fenses and pullout one for each count. Eve n when d one b y this m ethod , the arg ume nt goe s, eac h offen se will have been prove n bey ond a reaso nable doubt. We acknowledge that t he illustrati on is an extr

eme one, but we think it makes the poi nt: such an approa ch is con trary to our law.
Tidw ell , 922 S.W. 2d at 501. Her e, t he v ict im testif ied that finger penetr ation occurred basicall y all of the time. Without

an electi on, the ju ry could reason that because the ac ts occu rred all of the time , at least one aggravated ra pe occurred in each y ear in qu estion. U nder ou r law, this co nstitutes re versible e rror.

We recognize, as the jury surely did, that the Defendant’s a ct ions are deplo rable examples of domination and abuse. We find the result we must enforce mos t distas teful. Th e Def enda nt is clea rly a pe rson w ho en gend ers little or no sym pathy. H owev er, we no te thatthe State coul d have perhaps assi sted Ms. Bowman, who was an adult at the time of

trial , to is olate speci fic i ncidents of abuse in the year

s in questi on u po n which to anchor the convict ions. With the proofas it curren tly exists in the record, we arecompelled to gr ant the Defendant a new trialon the charges for aggravated rape. We simply cannot concl ude that the error is h armles s beyo nd a rea sonab le doub t.-20- As our supreme court r ecently agai n emphasized:
We appreciate the dif ficu lt ies involved in prosecut ing cases of sexual abuse against smal l chil dren. In suc h cases , t he rules of ev idence and therul es o f pr oced urehav e bee n re laxed to so me extentto accom moda te ver y young witnesses. Nevertheless, the constitu tion al protec tions g uaran teed a crimin al defe ndan t, who is presumed by the law to be inno cent un til proven g uilty, canno t b e sus pended altogether because of the vi ctim’s age or relative inabi lit y to testify. In cases such as thi s one, thestate must ei ther li mit the testimony

of prosecut ing witnesses to a single event , or prepar e the case so that an el ection can be made before the matter is submitted to the jur

y to decide. Walton , 958 S.W.2d at 728 (quoting Shelton ). Finally, we ca nnot a dequ ately a sses s the s uffic iency of the evidence because we find that

the State failed to

elect t he offenses upon which to convict the Defendant. Theevidence in t his record d oes not assure t he jury achi eved a unanimous verdict and precludes t his Court f rom effectively revi ewing the sufficiency

of the convi cting evide nce a s we c anno t be ce rtain what evidence was used by the jury to determ ine guilt on each co unt. See Tidw ell , 922 S.W.2d at 501; Shelton , 851 S.W.2d at 138. II.

The Defen dant also argues that the co unts of the indictme nt a llegin g aggravated rape a re fatally defecti ve for fai lure to al lege the requisite mens rea. The Defendantrelies

primarily upon the decisi on of this Court in State v. Roger Dale Hill , C.C.A. N o. 01C 01-950 8-CC -00267 , Wayn e Cou nty, (Ten n. Crim. A pp., Nashville, June 20, 1996). We first note t hat this Court’s d ec ision i n Hill was based upon an interp retati on of o ur new crimin al cod e, and this cod e is-21-

appli ca ble only to of

fenses occurr ing after November 1, 1989. Secondl y, our supr eme court h as rev ersed this Co urt’s de cis ion in Hill
. See State v. Hill , 954 S.W.2d 7 25 (Tenn. 1 997).

In the case sub judice , we have examined the l anguage of the chal lenged indict ment and we conclude that the indi ctment adequatel y alleged t he criminal offensescharged and suff icient ly informed the Defendant of the charges against him such tha t the conv icting cou rt had jurisd iction. Also, th e disposit ion of the convicti ons because of theelecti on issue negates t he need for fur theranalysis.-22- III.

As his next i ssue, the Defendant contends that

the tri al court erred by faili ng to grant hi s motion to sever offens es. The Defendant was indi cted on eightcounts of

aggravated rape whi ch occurred between 1979 and 1985, t hree counts of assault and two counts of attempted first-degree murder, al l of which occurred in 1994. Theoffens es we re con solida ted for tr ial. The Defendant fi led a motion to sever

counts 1 thr

ough 8 and cou nts 9 through 1 3 becaus e they were remote in time and u nrela ted in nature . The De fendan t also filed a m otion to dismiss counts 4 thr

ough 8, which was granted. On the dayof the trial, t he trial judge stated tha t he woul d allow the State to present evidence to conne ct the offenses, but if they did not , he would grant a severance and a m istria l. The remaining t hre e coun ts of aggra vated ra pe we re tried toge ther with th e coun ts originating from the 1994 inc idents.

Under Rule 8(b) of t he Tennessee Rules of Cri minal Procedure, separa te and disti nct offens es may be joined i n one indict ment if (1)the offens es are of the
same or simil ar character or (2) t he offenses const itute par ts of a common sch eme or plan . Unde r Rule 14(b)(1) , a defendant has a ri ght to a severance of offensesjoined by Rule 8(b) unless (1) the offenses are part of a common sch eme or plan and (2 ) the ev idenc e of on e wou ld be ad miss ible upon the tri al of the others. Ten n. R. Crim. P. 1 4(b)(1).-23- W e must f irst determine whether t he offenses t hat were tri ed together constitute a common scheme or plan. A common scheme orplan for severance purposes is the same as a common scheme or pla n for evidentiar y purposes. State v. Hoyt , 928 S.W .2d 935 , 943 (Te nn. C rim. App . 1995) State v. Hallock , 875 S.W.2d 285, 289-90(Tenn. Crim. App. 1993) (cit ing State v. Peacock , 638 S.W.2d 837 (Tenn. Crim. App. 1982)). Ther e are three categories of "common sch eme or plan" evidence. These incl ude (1) distinct ive desi gns, or signature crimes; (2) a larger , continuin g plan or consp iracy; and (3) the same transact ion. Hoyt , 928 S.W.2d at 943. A cont inuing pl an of conspir acy “involves not the similarity between the crimes, but the common goal or purpo se at which the y are directed.” Id
. (citati on omitted). In such ci rcumstances, the proo f sough t is of a working plan, operating tow ards the future with such force as to make proba ble the crime for w hich the defen dant is on trial.” Id.

In the case at ba r, the proof demonstrated that the Defendant dominated the victim’s family from the time he became involved with them. He began to use Nicole Bowman as his sexual“propert y” and molested her

from as early as t he age of three u ntil the tim e of the offens es tha t occu rred in 1994. Nicolewould be forced to stay at h ome a lone with the Defe ndant w hen he r sister wa s allowe d to leave with her mo ther. He exerted contr ol over thevicti m even after he moved out o f her home when she was thir teen. The Defendant demanded that she come to his house s o he cou ld conti nue to molest her . He demanded money from Teresa Bowman, and was the disci plinari an to her chi ldren, whether or not he was the biolo gical father. When Nicol e Bowman began to work, the-24-

Defendant deman ded mo ney from h er. He re quir ed he r to be a cces sible a t all times. Nicole had no soci al li fe and did not da te. When she was eighteen, t he Defendant found out t hat she was dati ng a boy and that she had had s exual relati ons with him. The Defendant became e nr aged, assaulted the vict im, and then forced va ginal intercourse w ith her.

The victim graduated from high school and t hen worked full time. Evidence
e stabli shed that

the Defend ant conti nued to domi natehis “pos sessi on.” He cosigned for a car but for ced Nicole to keep it at his house. She had to surrender her wage s to the Defend ant, who us ed them to pay for his own car. She had a pager and could only us e her car to drive to and f rom work and to chu rch o n Sunday. She wa s expected to account for h er whe reabouts at al l times. She still had n o soci al or dati ng relati onships. When Nicol e began seeing Claude Rucker, she bec ame more courageous and cooperated less fr equently. She had to see Mr. Rucker secretly duri ng a free hour she had after

her work shif

t ended and before h er sister’s sh ift ended. Whe n she left her mother’s h ouse, at age twenty-one, the Defen dant attempted to force her in his vehi cle to make her return home. After t he Defendant discovered she was seeing Cl aude Rucker, he beca me enraged. He stal ked the two and warned t hem that he would shoot them down “like dogs.” His des ire to cont rol Nicol e Bowman culm inated in his shooti ng her and Claude Rucker as t hey sat in Rucker’s car outside his house.
Although the offenses tried tog ether were ind eed remote in t ime, the ev ide nce in the record reveals that the of fenses committed by the Defendant-25-

were perpe trated a s a res ult of his goal to sexu ally m olest a nd co mple tely domin ate Nicole B owm an for his o wn gra tification. See State v. Bomar , C.C. A. No. 85-81-II I, Davidson Count y (Tenn. Crim. App., Nashvil le, Nov. 27, 1985) perm. to appeal denied (Tenn. 198 6).

We must next consi der whether the evidenc e of t he aggravated rapes wou ld properl y be a dmitted in the trial for t he assaults and attempted murders. Evidence thatthe accused committed crimes independent of those for which he is on trial is gene rally ina dmis sible because such evidence l acks relevance an d invite s the finde r of fact to infer guilt from prope nsity. Tenn. R. E vid. 404(b). Howe ver, evidence of ot her crimes, wr ongs, or acts may be admissible f or other purposes. 404(b). For exampl e, when a prior ba d act re veals a defe ndan t's
m oti ve or inten t, show s a com mon sche me o r plan, o r rebut s a de fenda nt's theory that the c harged offense was an acciden t or mistake, the trial court may admi t evide nce o f the prio r bad a ct after h olding a hea ring ou t of the ju ry's presence. At the h earing the trial j udge m ust weigh the pr obative val ue of the evide nce agai nst possibl e unfair pr ejudice to the defendant . Tenn. R. Evi d. 404(b); State v. West , 844 S.W .2d 144, 149 (Tenn. 199 2).

In the case sub judice , the trial court ruled the ev idence of t he prior acts to be admissible at

trial . The evidence of the history of sexualabuse was admitted not to prove theDefendant acted i n accord with t his character but as part of the proofestablish ing his m otive for the assau lts and atte mpted murde rs. See State
v. Sm ith , 868 S.W.2d 561, 574 ( Tenn. 1993). The Defendant clai med that the-26-

assau lts occurred only because he was tr ying to mediate an argument between Nicole Bowman and her mother. He went to her place of employment to take her home at her mother’s behest. He als o claimed that his acti ons taken to cont rol Nicole were for her own pr otection. The Defendant suggested that Claude Rucker had thre atened the Defe ndant to leave Nicole alon e because Rucker was with her now
. The Defendant test ified t hat he only shot at Claude Rucker’s car because he thought Rucker was r eaching for a gun. The S tate’s pro of and the Defe ndan t’s expla nation s wer e clea rly contradic tory and moti ve was certainly an issue in provi ng the levelof intent f or attempted f irst- degree murder. Proof of the nature of the rela tionsh ip betw een th e victim of a viol ent crime and a defendant prior to the com mission of the offen se are re levant to show d efenda nt's hostility and a settled purpos e to harm the victim
. See Smith , 868 S.W.2d at 574; State
v. Turnb ill , 640 S.W .2d 40, 46-47 (Tenn. Crim . App. 1982 ); State v. Glebock , 616 S.W.2d 897, 905-906 (Tenn. Crim. App. 1981). We do no t believe that the probative value of t his evidence i s outweighed by t he danger of unfa ir prej udice.
Therefore, we cannot concludethat the t rial cour t erred by

faili ng to grant the Defend ant’s motion to s ever.

IV.

As his final i ssue, the Defendant contends tha t the trial court e rred in its appli cat ion of enhancement factors for t he two attempted f irst- degree murder convicti ons and in imp osing consecutive sentences. When an accused-27-

challengesthe lengt h, range, or the man ner of s ervice of a se ntenc e, this court has a duty to conduct a de novo review of t he sentence with a presumption t hat the determinati ons made by the tri al court are correct. Tenn. Code Ann. § 40-35- 401( d). T his presumpti on is "condi tioned upon t he affirmative showing i n the record that the tri al court consi dered the sentencing principl es and all r elevant facts and circums tances ." State v. Ashby , 823 S.W .2d 166, 169 (Tenn. 199 1).

In conducting a de novo review of a sentence, t his court must consider: (a) the evidence, i f any, rece ived at t he trialand the sentenci ng hearing; (b) the pr esentence report; (c) the principles of sentencing and arguments as t o sentencing alternatives; (d) the nat ure and characte risti cs of the criminal conduct involved; (e) any stat utory miti gating or enhancement factors; (f) any st atement t hat the defe ndant made on his own behalf ; and (g) t he potentialor lack of potentialfor rehabi litat ion or tr eatment. Tenn. Code Ann . §§ 40-35-102, - 103, and -21 0; see State v. S mith , 735 S.W .2d 859, 863 (Tenn. Crim . App. 1987 ).

If ou r review reflects t hat the trial court followed t he statutor

y sentenc in g procedure, imposed a lawful sentence after having gi ven due considerat ion and properweight to t he factors and princi ples set out under the sentencing law, and thatthe tri al court' s findi ngs of fact are adequately

supported by the record , then we may not modify the sentence even if we would have pr ef erred a dif ferent result. State v. Fl etcher , 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).-28- The trialcourt sentenced the Defendant t o twenty-f ive year sentences for each attempted fi rst-degree murder convict ion. The trial court found the following sentence enhancement factor s applicabl e to counttwelve, t he attempted murder of Nicole Bowman: (1) That the Defendant has a previous hi story of c riminal behavior

in addit ion to those acts ne cessary to establ ish the appr opriate r ange; (6) that the pe rsonal injuries i nflicted upon the vict im were parti cularly great; and (9) that the defendant possessed a firearm in the commission of the offens e. Tenn. Code Ann. § 40-35-114(1) ,(6),(9). On count t hirteen, the attempted murder of Claude Rucker, the tri al court ap plied enhancement f actors (1) , (9) and (10) thatthe defendant had no hesitat ion about committing a crime when the risk to human l ifewas hi gh. T enn. Co de Ann. § 40 -35-114(1), (9), ( 10). The trial court found no mitigati ng factors.

The Defendant arguesthatenhancement factor (6) does not ap ply to t he sentence in count twelve because it i s an element of at tempted fir

st-degree murder. We disagree. Thi s Court has held that it is app ropria te to ap ply enhancement factor (6) to attempted first- degree murder because the offense may be com mitte d with out causing any i njury and t hus, is not an essential element of the offen se. State v. Nix , 922 S.W.2d 894, 903 ( Tenn. Crim. App. 1995); State v. Arch ie Lee R oberts , C.C.A . No. 0 1C0 1-960 3-CC -0008 2, De kalb Coun ty (Tenn. Crim . App., Nash ville, Jan. 30, 1997) per m . to appeal denied (Tenn. 1997); State v. Ti m F ox , C.C.A. No. 03C01- 9503-CR-00061, Sevier Coun ty (Tenn. Crim. A pp., Kno xville, June 21, 199 6). Here , the injuries to Nicole-29-

Bowman included extended hospitali zation, severe faci al disfi guration and t he loss of vi sion in one eye.

Next, the Defend ant argues tha t the trial court misapplied f actor (10) to count thi rteen because t here were no bystander s during th e commission of t he offense and that he was convicted based on both victims. The State co unters thatthe Defendant shot Nicole Bowman, then shot Claude Rucke r. Because N icol e was leaning agai nst Rucker when the Defendant shot t he second time, this put her fur ther at risk, su pporting the impo siti on of f actor (10). Ordinari ly, factor (10) may not be appl ied when it i s an essentialelement of the offense. It has been considered suc h in charges for attempted murderbecause the offense constit utes beha vior tha t is inheren tly a high risk to hum an life. State v. Makoka , 885 S.W.2d 366, 373 (Tenn. Crim. App. 1994); However, when others who are not the vict ims of the cr ime are at risk of har m, this fac tor may be app lied. Id. ; State v. Hicks , 868 S.W .2d 729 , 732 (Te nn. Crim . App. 19 93). In the case at bar, the Defendant was charged wi th attemptedfirst-degree murde r for both vi cti ms invol ved. Therefore, the high ri sk to human lif e was clearly

inherent i n th e charged offenses. The fact t hat Nicole Bowman was near Claude Rucker when the secon d shot w as fired do es not cre ate a risk t hat was a “second ti me around” thatwould justify a

findingof risk

of harm above and beyond t hat inherent in the offense of attem pted first-de gree m urder. Furthe rmor e, there is no evidence that any witness es to the e vent we re in close enoug h proxim ity to the shootings to be considered at risk because of the offens e. We must conclude that the trial court erred in applying factor (10) to count thirteen, the attempted murder of Claude-30-

Rucker. Nevertheles s, we believe tha t the remaining enhance ment factors m ore than adequately suppor t the twent

y-five year sentence i mposed by the trial court. Likewise, we affir m the twenty-f ive year sentence imposed for t he attempted murder of Nicol e Bowman.

The Defenda nt als o charg es that the trial court erre d by ord ering him to serve his sentences

for the attem pted first-de gree m urders c onsec utively. The t rial court fo und th at the D efend ant w as a d ange rous o ffende r, whic h require s thatan offend er’s “beh avior indic ates littl e or no regard for human life, and no hesitati on about comm itting a crime in which the risk to hu man life is high.” Tenn. Code Ann. § 40-35 -115( b)(4). B eyon d this, th e evid enc e must support “the findingthat an extended sentence is necess ary to protect the publi c against furth er criminal conduct by the def endant and that

the consecutive sentences must reason ably relate to the sev erity of t he off enses com mitted.” State v. Wilkerson , 905 S.W.2d 933, 939 (Tenn. 1995); see State v. Tayl or , 739 S.W.2d 227, 23 0 (Tenn . 1987); Gray v . State , 538 S.W .2d 391, 393 (Tenn. 197 6).

The tri al co urt

foun d that th e Defe ndant was a da ngero us of

fend er an d we agree. Tenn. Code Ann. § 4 0-35-11 5(4). He had no hesitat ion about committ ing a cri me in which the risk to hu man life w as high. The circumstances s urrounding the offenses were aggr avated in ever

y sense. Furt hermore, the t rial cour t found, consideri ng the prin ciple s enum erated in Wilkerson , that t he sentences reaso nably related to the sever ity of the offenses and that an extended period of incarcer ation wa s nece ssary to p rotect the p ublic.-31- The Defendant argues t hat he had only one prior aggravated assault and thatthis i s not enough to suppor t consecuti ve sentences. We have no reservati ons in fi ndi ng th at the trial cou rt properly senten ced the Defen dant to cons ecutiv e term s. In addi tion to hi s prior conv iction , the Defendant exhibited a long-term pattern of abus ive and contr ollingbehavior not

only in regard to t he victi m, Nicole Bowman, but her entire f amily. The Defendan t had no hesitation in th reateni ng an d attac king M s. Bow man and w hoev er else interfer ed with his purpose to controlher. The Defendant was unrepentant at

trialand claimed that the other wit nesses lied abou t him. There is no indi cation t hat when the Defendant is rel eased, he willrefrai n from engaging in the same destructive behaviors for which he has been incarcer

ated. Therefore, we aff irm the trial court’s impos ition of con secutive twenty-fi ve yea r terms. The sentences for
assa ult rema in concurrent as ordered by the trialcourt for an effective sentence of fift y years.
Accordingly, we affir m the Defendant’s convicti ons for assaul t and attempted first -d egree murder and the ef fective fift

y-year sentence ordered therefor. We reverse the convi ctionsfor aggravated rape and remand for a new trial.

____________________________________ DAVID H. WELL ES, J UDGE-32-

CONCUR:

___________________________________ JERRY L . SMI TH, J UDGE

___________________________________ THOMAS T. WOODALL, JUDGE