# FILED

June 10, 1998

Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COU RT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE MARCH 1996 S ESSION

STATE OF TENNESSEE, ) ) Appellee, ) No. 03C01-9507-CC-00188

) ) Claiborne County v. ) ) Honorable Lee Asbury, Judg e ) TERRY FRANKLIN STOGDILL, ) (Rape of a child and incest) ) Appellant. ) For the Appellant : For the Appellee : Martha J. Yoakum Charles W. Burson District Public Defender Attorney General of Tennessee P.O. Box 386 and Tazewell, TN 37879-0386 Michael J. Fahey (AT TRIAL AND ON APPEAL) Assistant Attorney Gener al of Tennessee 450 James Robertson Parkwa y Charles Herman Nashville, TN 37243-0493 John Beaty John McAfee William Paul Phillips Assistant Public Defenders District Attorney General P.O. Box 386 P.O. Box 10 Tazewell, TN 37879-0386 Huntsville, TN 37756-0010 (AT TRIAL) and Shayne Sexton Assistant District A

ttorney General P.O. Box 455 Tazewell, TN 37879-0455

OPINION FILED:____________________
AFFIRMED Joseph M. Tipton Judge2 O P I N I O N
The defendant, Terry Franklin Stogdill, appeals as of right fro m his convictions by a jury in the Claiborne County Criminal Court for rape of a child, a Class A felony, and incest, a Clas s C felony. The defendant was se ntenced as a Range I, standard offender to concurrent sentenc es of twenty years an d five years in the cus tody of the Department of Correction. On appeal, the defendant contends that: (1) the trial court erred by denying his motion for a continuance to obtain a forensic evaluati on; (2) the trial court er

red by denying his moti on to suppress the defendant’s statement; (3) the trial court erred b y denying his moti on t o require the state to elect at the close of its proof the particular offense for which it sought a convicti on for each count of the indictment; and (4) the trial court erred

by misapplying an enhancement factor. We affirm the judgments of conviction.

Lieutenant Ben Evans of the Clai borne County Sheriff’s Depar tment testified that he along wi th Mike Cosby from the Depa rtment of Human Services w ent to the defendant’s residence on Februar y 4, 1994, at approximatel y 2:45 p.m. to intervi ew the defendant. He stated that when he introduced himself and Mr. C osby to the defendant and told him that they w ere investigating

allegations that the defendant sexually abused his seven-year-old st epdaughter, the defendant invited them inside and told them that he had been expecti ng them. Lieutenant Evans tes tified that he informed the defendant that the victim accused him of penetrating her by putting his penis in her mouth and by ins erting his fingers and penis inside her vagi na during the snowstorm that occurred in January 1994.

Lieutenant Evans stated the defendan t then gave a statement. He said that Dawn Stogdill, the victim’s mother and the defendant’s wife at the time , was also3

present during the interv iew. Lieutenant Evans believed that the defendant acted remorseful and appeared to have a ha rd time remembering thing s. He said that the defendant had tears in his eyes and confessed that he needed help. He tes tified that although the defendant told him that he h ad taken three types of medicati on, he believed that the defendant understoo d everything and answ ered his questions appropriately.

The defendant’s statement was intro duced into evidence and read t o the jury. The statement reflects that the defendant recalled an inci dent occurring more than one year earlier at hi s home located in the Cape Norr is area. Although the defendant could not recall the exac t date or time and he stated that he d id not remember what happened, the defendant told Lieutenant Evans that he remembered masturba ting in front of the victim in the li ving room while the rest of the family was a sleep.

In his state ment, the defend ant told Lieutenant Evans that the firs

t time that he physically t

ouched the victim was in January 1993 just before mov ing to the residence located next to Hickman’s Junkyard. The statement reflects that the defendant stated that at approximatel y noon while the other children were sleepi ng and his wife was at w

ork, he rubbed the victi m on the outside of her clothing on her legs and between her legs for approximately ten or fifteen minutes. The defendant told Lieutenant Evans that afterw ards he went inside his bedroom and masturbated. The defendant described his actions as a “want to touch thing ,” and he said that he was not “really attracted to [the victim].” The defendant conc eded that something else may have happened, but he claimed that he could not remember. He expl ained that he was taking a lo t of med ication, includin g Anaprox, Talwin and Ativan, an d that he might have a mental block, making it hard to remember.4 The statement also shows that th e defendant recalled an incident occurring toward the last part of the snowstorm in January 1994 at the residence located next to Hickman’s Junkyard. The defendant told Lieut enant Evans that the victim approached him w hile he was sitting

in his bath wrap in a chair in the living room and asked the defendant, “‘Can we do it?’” The def endant stated that he told the victim that it was not rig ht. He admitted that he should hav e told the victim’s mother and asked her to talk to the v ictim. The defendant’s statement show s that the defendant conceded that he had done wrong and needed help.

The defendant also said that he did not r emember, as alleged by the victim, putting his penis inside the victim’s mouth and ejaculating, touching the victim’s vagina with his penis, and sticking his finger inside the victim’s vagina. However, without specifying the time or the location of the inc idents, he conceded that it w as possible that the actions occurred. The defend ant recalled that the victim grabbed his penis a couple of times, although he could not remember when it took place. The defendant claimed that the victi m never acted scared or ac ted as if she wanted the defendant to quit.

Mary Palmer Campbell, a pediatrician, testified that she examined the victim on February 17 , 1994. She said that the victim was very co operative, alth ough she testified that the victi m was hesitant to tell her what happened. Dr. Campbell stated that the victim stopped telling her what happened at one point and also told her to talk to the counselor for the Department of Hum an Services that had interviewed her. Dr. Campbell testified that the v ictim reported being cons tipated, and she said that constipation can be associated with abuse, although it could be norm al also. She also stated that her examination revealed a thickening and rolling of a portion of the victim’s, hymen, scar tissue at the bottom of the opening of the hymen, and an openi ng in the hymen. In Dr. Campbell’s opinion, the thickened and rol led hymen was consist ent with5

penetration of the vagina, although the opening in the hy men was within the nor mal limits. Dr. Campbell t

estified that the rectal ex amination showed that the ski n had been torn and had healed deeper. In her summary report, Dr. C ampbell stated that in her opinion, the victim had a history “dramatically consistent with sexual abuse.” Dr. Campbell also expressed the opinion that the results of the exam ination were consistent with penetrat ing trauma to the vagi na and possibly to the rec tum.
On cross-examination, D r. Campbell testified that w hen the victim stopped telling her what happened and told her that she could not remem ber, Dr. Campbell asked the victim whether something happened and the v ictim responded yes or no to her questions. She stated on redirect examination that the injury to the vi ctim’s hymen would have been painful.

Dawn Johnson, the defendant’s ex -wife, testified that she w as married to the defendant at the time of the offenses. She said tha t she and the defendant moved to Tennessee in February 1992. She stated that she and the defendant rented a house from her parents in Cape Norr is for approximately on e year beginning in March 1992. Ms. Johnson testified that about M arch 1993, they moved nex t to Hickman’s Junkyar d. She stated that in October 1993 w hile at their home near Hic kman’s Junkyard, she asked the victim whether the defendant had been “me ssing with her” and the victim responded affirmatively. M s. Johnson said that when s he confronted the defendant, he admitted his guilt, tell ing her that he had touched the v ictim’s privates and had rubbed himself on her. She testified that s he had earlier experienc ed problems with ovar

ian cysts. Ms. Johnson testified that she and the victim moved to the home of Ms. Johnson’s parents, the victim’s grandparents, in October 1993, but she did not tell anyone what happened.6 Ms. Johnson stated that she later moved back in with the defenda nt in December 1993, but the victi m lived with her g randparents until January 17, 1994, when the victim stayed with her and the defendant because her grandparent’s hou se caught on fire. She said that the victim slept on the li ving room floor. Ms. Johnson recalled that a snowstor m occurred while the v ictim was staying

with them, causing them to be unable to leave the hous e. She said that on February 3, 1994, she learned that the victim had told Ms. Johnson’s sister that the defendan t had abused the victim and that Ms. Johnson’s mother had called the Departme nt of Human Services. Ms. Johnson testified that she told the defendant about the victim’s all egations and that the police were coming t

o question him the next day

.

She said that the defendant acted nerv ous and scared and that he did not go to work. She stated that the defendant told her that during the morning before being interviewed by the police, he spent most of his ti me in the woods with a gun in his hand. Ms. Johnson believed that the defendant acted normally on Febr uary 4, 1994, when Lieutenant Evans and Mr. C osby came to talk to the defendant. She stated that she also gave a statement to the police. She stated that the follow ing night the defendant went to Oakwood Medic al Center for detoxificati on. Ms. Johnson testified that a fter leaving the center, the defendant told her that he plann ed on returning for treatment in the psychiatric w

ard of the center. She said that the defendant told her that he had to be suicidal to be admitted, and s he claimed that in order to g et the defendant admitted, she lied by stating that the defendant had heard voices and was suicidal.

On cross-examination, Ms. Johnson admitted that she knew in January 1992 that something had happened betw een the defendant and the victim becaus e the defendant had been accused of sexual abuse in another state. She said that the victim told her that the defendant touched her pr ivate parts and rubbed his penis between her legs. Ms. Johnson testified that she believed that the victim was telling the truth. Ms.7

Johnson also conceded that her st atement reflects that the victim revealed to her that the defendant rubbed his penis on the v ictim’s leg, but she cl aimed that the officer incorrectly wr

ote down her answer. She explained that she failed to correct the inaccuracy because it w as a hectic day. Ms. J ohnson stated that she told the officer that the victim had been acting weird for approximately three to four months bef ore revealing what had happened. She explained that the v ictim often asked for a night light, and she eventually gave her one. Ms. Johnson testified that the victim’s weird conduct prompted her to ask the v ictim whether the defendant had done anything to her. She denied that the victim did not like the defendan t, and she said that the victim was scared of the defendant.

The victim testified that she knew the difference be tween a good touch and a bad touch. She explained that a bad touch is when someone t ouches her private parts. The victim testified that she remembered livin g in a house that belonged to her grandparents in Cape Nor ris. She said that the defendant, w hom she called “Daddy,” touched her more than once whi le living in that house. She stated that the defendant touched her during the daytime in her mother’s bedroom while her mother was at work and her brothers and sister s were napping. The v ictim explained that she w as in her bedroom when the defendant, standing in the hallway, w

histled at her and told her t o come to him. She said that both she and the defendant were weari ng pants and a shirt. The victim testified that the de fendant touched her between her legs where she urinates, sticking hi s finger inside her. She s aid that although it did not last long, it hurt.

The victim testified that the defendant did not say anything to her before he stuck his finger insi de her vagina. She stated that when he finished, the defendant told her not to tell anyone . She said that she eventual ly told her mother that the defendant had been touching her in in appropriate places. The vi ctim testified that she8

did not tell her mother what the defendant had do ne until they moved to the residence next to Hickman’s Junky ard some time in 1993. She said that approximately three or four days after telling her mother about the defendant’s conduct, her mother took the victim to live w

ith her grandparents. The v ictim stated that she also tol d her aunt about the defendant’s conduct. On cross- examination, the victi m testified that she could not remember the date that the incident at the Cape Norris resi dence occurred.

The victim testified that aro und Christmas in 1993, she sta yed with her mother and the defendant fo r approximately two and a half weeks at the residence located next to Hickman’s Junkyard. She stated that she remembered having a big snowfall while stay

ing there, causing them t o be unable to leave the house. She testified that one morning, the de fendant came into the living room where she was sleeping and tur ned on the tele vision. She said th at the defen dant, who was wearing a black robe, sat in a chair in the living room and told her to come to him. The victim stated that the rest of her family was asleep. She said that she went to see what th e defendant wanted, believing that he was going to give her something. The victim, who was wearing a ni ghtgown, said that the defendant then pulled her panties dow n and stuck his finger inside

her vagina as she w

as standing beside the chair. She stated that at one point, she tried to get away from the defendant. T he victim testified that it hurt when the defendant stuck his fing er inside her. She said th at after the snowstorm, she moved back to live w

ith her grandparents. The v ictim stated that she never told her mother what the defendant did durin g the snowstorm, but she did tell her aunt.

On cross-examination, the victim acknowledg ed that she had earlier testified at the preliminary hearing that the defendant did not s tick his private par

t inside her and that she did not see the defendant’ s private part. She conc eded that she stated at the preliminary hearing that the defendant did not do anything to her on the day of the snowstorm. The victim admitted that she had told som eone that if she could9

be granted three wishes , she wanted to be with her natural father and that her natu ral father not remarry. She also admitted that she did not like the d efendant. The victim testified on redirect exami nation that she had never li ked the defendant. She stated on recross-examination th at she also claimed that tw o of her uncles had touched her on earlier occasions.

No witnesses wer

e called to testify for the defense.Based upon the above proof, the jury conv icted the defendant of rape of a child and in cest.

I. CONTINUANCE The defendant contends that the trial cour t erroneously denied his motion for a continuance to obtain a forensic evaluation. He argues tha t a medical report received on December 1, 1994, eight days before the hearing on the mo tion for a continuance and thirteen days before trial, tends to show that the defendant had a defense based upon his mental condition. Specifically, the defendant ass erts that a statement made by Dr. Kenneth Ca rpenter in the report rai sed a question regardi ng the defendant’s sanity at the time of the offense:

It is my s peculat ion that the abuse, if i t occ urred, was associated with drug behavi or and the patient had blackoutsat the t ime. In just talking w ith him, it is obvious

that he has blackouts for a lot ofevents during the times that he was taking excessive amounts of Talw in. The defendant argues that it can log ically be inferred from Dr. Carpenter’s conclusi ons that the defendant did not know w hat he was doing at the ti me of the offenses, and he contends that a continuance wa s necessary to prov

ide him the opportunity to gather and present evidence in suppo rt of an insanity defense. The stat e responds that the trial court did not abuse i ts discretion by deny

ing a continuance.1 The record on appeal d oes not contai n the defendant ’s motion for a continuance. The transcri pt of the continuance heari ng reflect s that th e motion all eged that a psy chiatri c, forensi c evaluati on was nece ssa ry bec aus e the defe nda nt su ffere d ser ious me ntal, p hysic al, em otion al and psyc hiatric problems. 10

On December 9, 1994, a pretrial hearing was conducted on a motion f or a continuance filed by the defendant on December 8. 1 In support of his motion, the defendant introduced medical dischar ge summaries reflecting that the defendant obtained treatment at Oakwood M edical Center from February 5 to February 9, 1994, was readmitted on Februar y 10 because of depression and thr eats to kill himself wi

th a handgun, and he received tr eatment through February 21, 1994.

The medical records state that the defend ant reported taking daily quantities of several pr escription drugs. They reflect that the defendant was under the influence and in a “blackout of multi ple drugs” at the time of the offenses. They show that while at the medical center, the defendant received t reatment for his alcohol and opiate dependence. The medical recor ds also show that the defendant had a history of depression and suicidal tende ncies and he heard voices telling him to kill himself, had difficulty sleeping, and ex perienced continuous cry ing spells and feelings of being watched by someone. The defendant re ported that he had no recollecti on of committing the offenses or giv ing a statement to the police.The medical records state that the fact that the defendan t’s “mental status was clouded related to the multiple drug ingestion such tha t he was having auditory hallucinosis and some of the voices . . . were telling him to kill himself.” Regar ding the auditory hall ucinosis, the records st ate that the defendant had heard voices for four years and that it may be secondary to drugs.

The medical records state that the defendant was initially diagnosed as having dysthymi a, but upon re-evaluation, the diagnosis was chang ed to major depression with psy

chotic features. The defendant was l ater diagnosed as having recurrent, major depressi on with non-psychoti c features. The records reflect that the11

treating physician requested that the defendant have a consultation for evaluation for group therapy and a possible transfer to the psychiatric services for primary psychiatric treatment, but the defendant was rel eased before a consultation was conducted. On February 21, the defendant wa s discharged but was ordered to follow up treatment with a program at Child and Fami ly Services and, i f that failed, to attend Cherokee Ment al Health Center. The record doe s not reflect whether follow -up treatment was obtained.
At the hearing, the state ar gued that the motion for a continuanc e was untimely and that the medical records did not support a s howing that a continuance was necessary to determine the issues of the defend ant’s competency to stand trial or his sanity at the time of the offense. The stat e asserted that the defendant had access to the February 5 through 9 medical records on June 21, 1 994, approximately tw o months before the defendant was indicted, and those records set forth a simi lar medical history. The defendant explained that the delay in filing the motion was a result of not receivi ng the February 10 th rough 21 medica l records until Dece mber 1. He state d that although he requested the defendant’s medical records in June, the only medical records furnished to him at that time w ere the February 5 throug h 9 records. The defendant argued that although the defendant’ s competency to stand trial was not of great concern, a continuance was necessary to evaluat

e the defendant’s sanity at the ti me of the offenses.

The trial court denied the defendant’ s motion for a continuance. It noted that the issue was not one of ti meliness because the defendant’s sanity was at issue. The court ruled that the medical records did not indicate the type of condition that would require a forensic evaluation. In its decision, the trial court stated that the def endant’s problem apparently stems from depression and drugs.12 Pursuant to T.C.A. § 33-7-301(a ), the trial court, in its discretion, may order the defendant to be evaluated i f the defendant is believed to be inc ompetent to stand trial or there is

a question as to the defendant’s ment al capacity at the time of the commission of the offense. State v. Rhoden , 739 S.W.2d 6, 16 (Tenn. Crim. App. 1987). The trial court’s decision to deny a psy chiatric evaluation w

ill not be reversed on appeal absent a showing th at the trial court abused its discretion. State v. Lane , 689 S.W.2d 202, 204 (T enn. Crim. App. 1984).

The granting of a continuance al so rests within the s ound discretion of the trial court. Moorehead v. State , 219 Tenn. 271, 274-75, 409 S.W.2d 357, 358 (1966). A reversal may only

occur if the denial was an abuse of discretion and the defendant was improperly pr

ejudiced in that a different result might reasonably hav e been reached if the continuance had been granted. See State v. Dykes , 803 S.W.2d 250, 257 (Tenn. Crim. App. 1990). Thus, it i s incumbent upon the defendant to show that he was prejudiced. In Morehead , our supreme court stated that the trial court’s ex ercise of discretion will n ot be disturbed on appeal “unles s something is developed in the after trial to show that the de fendant might have been prejudic ed in some way by the

refusal to grant a continuance.” 21 9 Tenn. at 275, 409 S.W.2d at 358-59.

The evidence submitted regar ding the defendant’s mental status was not substantial. Moreover, the medical records, taken as a whole, show that the defendant experienced blackouts at the time of the offense as a result of his dr ug usage, not because of a mental disease or defect. U nder these circumstances, w e cannot say that the trial court abused its discretion by denyi ng the motion for a continuance.

Furthermore, the defendant has failed to meet his burden of demonstrating that he was prejudiced by the denial of a continuance. He has not demonstrated that had a continuance been granted and an evaluation c onducted, the13

findings of the evaluation would have been that the defe ndant was mentally incapacitated at the time of the offenses. The de fendant did not introduce any additional evidence at the motion for new trial to support a showing of prejudice. It is the burd en of the d efendant to clear ly show that pre judice result

ed from th e denial

of a continuance, rather than leav ing this court to specul ate how the defendant was prejudiced. See State v. Teel , 793 S.W.2d 236, 245 (Tenn. Crim. App. 1990). He has failed to meet his burden in this case. For these reasons, we hold that the trial court properly denied a continua nce.

II. SUPPRESSION OF STATEMENT The defendant asserts that the trial court erred by denyi ng his motion to suppress the statement giv en to Lieutenant Evans. He ar gues that the statement was not given voluntari ly because the defendant was u nder the influence of drugs. The defendant , citing Dukes v. State , 578 S.W.2d 659 (Tenn. Crim. App. 1978), contends that the proof shows that the defendant was unable to make a definitive narrative of all past events or to state hi s own participation i n the crimes. The state responds that the trial court properly

allowed the statement into e vidence because the proof did not demonstrate that the defendant was under the influence of drugs at the time of statement. We hold th at the trial court did not err.

Before trial, the defendant filed a motion to suppress the statement he gave to pol ice. The defend ant alleg ed that h e did not knowingly an d volunta rily waive his rights and giv

e a statement because he was under the influence of prescribed medications that interfered w ith his ability to und erstand his rights or to give a statement.
A hearing was conducted on the motion to suppress on December 13, 1994. Lieutenant Evans testified that as part of his investigation, he along with Mike14

Cosby of the Department of Human Serv ices went to the defendant’s r esidence at approximately 2:48 p.m. on February 4, 1994, to inter view the defendant. Lieutenant Evans testified that when he arrived, he introduc ed himself to the defendant, told the defendant that he was there to investigate allegations that the def endant sexually abused the victim, and asked to speak to him. He stated that the defendant invited them inside and told them that he had been expecting them.

Lieutenant Evans testified that he advised the def endant of his Miranda rights before questionin g the defendant and the defendant signed the waiver of rights form. He explained that because the defendant told him that he could not r ead well, he read each line and asked the defendant w hether he understood each particular right. Lieutenant Evans stated that the defend ant said that he understood his rights. He said that he t hen took the def endant’ s statem ent in the living room in the pre sence of Dawn Stogdill and Mr. Cosb

y. According to Lie utenant Evans, the interv iew lasted approxim ately thir ty minute s. He state d that th e defen dant’s an swers were re sponsive to his questions. Lieutenant Evans explained that he transcribed the def endant’s answers to his questions, but he asked the defendant to read the statement when it was completed and to point out any mistakes to be correc ted. Lieutenant Evans testified that the defendant review ed the statement, stated that it w as accurate, and signed the statement. He rec alled the defendant having tear s in his eyes after sig ning the statement and stating that he k new that he needed help.

Lieutenant Evans stated that the defendant did not mention any limita tions mentally. He also said that the defendant did not tell him that he was under the influence of any drugs, althoug h the defendant did mention that he was taking three different types of medication that the d efendant believed might hamper hi s ability to remember. Lieutenant Evans tes tified that he had no doubt that the defendant understood what he was do ing when he waiv ed his rights and gav

e the statement.15 On cross-examination, Li eutenant Evans conceded that he cou ld not recall what medication the defendant told him he had taken. He s aid that he did not remember the defendant asking him to r epeat anything. He stated that he questioned the defendant again on March 7, 1994, at Hickman’s Junkyard,where the defendant worked. Lieutenant Evans testified that the defend ant told him that he could barely remember talking to him on F ebruary 4. He stated that the defendant also told him that he went to Oakwood Medi cal Center for drug detox ification after giving

the statement on February 4. Lieutenant Ev ans said that the defendant told him that he could not remember anything before goi ng for treatment.

Mike Cosby of the Department of Human Services testified that he accompanied Lieutenant Evans to the defendant’s residence on Februar y 4, 1994, and was present during the interview. He said that the defendant did not appear to be under the influence of drugs or al cohol, although the defendant told the m that he had taken some medication. He stated that the defendant answered appropr iately to the questions that were as ked. Mr. Cosby testi fied that he believed that the defendant understood Lieutenant Evans’ q uestions and understood what was happening.

The defendant testified tha t he had been depressed for several years after injuring his back.He said that at the time of the st atement, he had been taking prescription drugs on a daily basis, inclu ding Talwin, Anaprox , Ativan, Elavil, and Zantac. The defendant stated that he took mor e medication than prescribed be fore the interview because he experienced bad pain in his back. He said that the day after the interview, he w

ent to Oakwood Medical C enter to obtain treatment for his drug abuse. The defendant testified that he stopped taking the drugs after the treatment. He stated that he could not fully remember Lieutenant Evans and Mr. Cosby being at his house in February 1994. T he defenda nt said that he h ad been unde r the influenc e of drugs every day for a long

time, and he stated that it caused him to forget things. The16

defendant claimed that he would not h ave given a statement had he known what he was doing. He stated that when he spoke to Lieutenant Evans in March, he told Lieutenant Evans that he did not recall giving the statement in February.The defendant conceded that the signature at the bottom of the statement was “c lose” to being his signature, but he asserted that he did not hav e any recollection of gi

ving the statement. He blamed his loss of memory on the medication he w as taking.

On cross-examination, the defendant conceded that he had worke d and driven a car during

the six months before giv ing the statement, a period of ti me when he was also taking the medi cations. He also admitted that he was not surprised that the Oakwood Medical Center ’s records reflect that the only medication detected i n the defendant ’s system was Talwin. T he defenda nt testified t hat he recalled giving a second statement to Lieutenant Evans on March 7, 199 4, stating that he did not recall giving the earli er statement. He admitted that he al so gave a statement on Apri l 12, 1994, that reflects that he could not remember what happened between him and the victim.
At the conclusion of the hearing, the trial court overruled the defen dant’s motion to suppress the statement. The trial court determined that the defendant was capable of knowingly and voluntarily w aiving his rig hts and giving a st atement to police.
On appeal , the tr

ial cou rt’s fi ndings

of fact at

the conclusion of a suppression hearing w ill be upheld unless the ev idence preponderates otherw ise. State v. Odom , 928 S.W.2d 18, 23 (Tenn. 1996). The defendant bears the burden of demonstrating that the evi dence preponderated against the trial court’s factual findi ngs. Id . However, the application of the law to the facts as determined by the trial court is a question of law whic

h is reviewed de novo on appeal. State v. Yeargan , 958 S.W.2d 626, 629 (Tenn. 1997).17 In this case, the defendant has failed to establish that the evidence preponderated against the tri al court’s factual determinati ons. The evidence shows that Lieutenant Evans testified that the defendant stated that he understood his rights before signing the wai

ver of rights form. He al so said that although the defendant had taken prescription medicati on, Lieutenant Evans had no doubt tha t the defendant understood what he was doing when he waived his rights and gave a statement. Mr. Cosby believed that th e defendant did not appear to be under the i nfluence of drugs or alcohol and also express ed the opinion that the defendant understood what was happening. We agree that this evidence de monstrates that the defendant kno wingly and voluntarily w

aived his rights an d gave a statement. Therefore, w e conclude that the defendant’s motion to suppress the statement was appropriatel y denied.

III. ELECTION OF OFF ENSES The defendant contends that the trial cour t erred by denying

his motion to require the state to elec t at the close of its proof the particular incident for wh ich a conviction in each count was being sought. He argues that the failure to require election cannot be considered h armless error because it is impossible to determine whether the jury r

eturned unanimous verdicts.The state asserts that the failur e of the trial court to requi re the state to elect is not reversible error.We agree.

In Burlison v. State , 501 S.W.2d 801 (Te nn. 1973), our supreme court held that the submission of evidence of multiple rapes by the defendant upon the victim when each of the several rapes so proven would meet the allegations of the charge in the indictment made it “the duty of the trial judge to req uire the State, at the close of its proof-in-chief, to elect the particular offe nse of carnal knowledge upon which it would rely for convictio n, and to properly instr uct the jury so that the v erdict of every jur

or would be united on the one offense.” Id . at 804; see State v. Rickman , 876 S.W.2d 824, 829 (Tenn. 1994). The court gave three reasons fo r these requirements:18 First, to enable the defendant to pre par e for and make his defense to t he speci fic charge; second, to protec t him from double jeopardy by

individualizati on of the issue; and third, so that the jury’s verdi ct may not be a matter of choice be tween off enses, some jurors convicting on one offense and others, another. Burlison , 501 S.W.2d at 803.

The requirement that the state elect the particular of fense upon which it relies for a convicti on is “fundamental, immediately touching the constitutional rights of the accused.” Id . at 804. As the court stated i n Shelton , “the purpose of election is to insure that each juror is considering the same occur rence. If the prosecution cannot identify an even t for wh ich to a sk a convicti on, then

the cour t cannot be assur

ed of a unanimous decision.” 851 S.W.2d at 138.

In this case, the indictment w as neither time nor place specific. The indictment charged the defendant in separate counts with commit ting the crimes of rape and incest “on or about 1993 - February 1994.” Moreover, the state’s pretrial response to the defendant’s motion for a bill of par ticulars did not limit each charge to a particul ar incident. Rather, the state responded that the events constituting the charges i n counts one and two of the indictment occurred “between the dates of January 1993 - February 1993 at the defendant’s then residence, located in the Cape Norri s area of Claiborne County, Tennessee, in a home rent ed from the parents of Dawn Stogdi ll.” It also stated that the events constituti ng the charges in counts one and two of the indictment took place “between the dates of February 1993 and January 29, 1994, at the defendant’s then residence located [in] . . . Claiborne County, Tennessee nea r Hickman’s junkyard.”

Though the defendant was indicted for only one coun t of rape of a child and one count of incest, the state introduced evidence that the defendant digitally penetrated the victim on two separate occasions, once at the Cape Norris residence and another time at the residence next to Hickman’s Junky ard. Moreover, duri ng its19

closing argument, the state summarized the evidence that showed the def endant’s guilt for rape of a ch ild, stati ng that the v ictim: talked about two incidents, where the defendant put his fingers inside of her. One at Cape Norris,one next toHickma n’s Junkyard. Both times, very clear about what happened. He put his fing ers ins ide of me. That is what she said. That is without question. Also, in rebuttal, the pros ecutor argued that: [defense counsel] ta lks about ot her time s an d things, other accusations. She was crystal clear about what happened on the two times there. C rystal clear. There is no vague accu sation. There is n o inconsi stency. The state did not specify duri ng its closing arg ument which incident it w as relying upon for a conviction for incest . The trial court instr ucted the jury that it mus t “give separate consideration to each count of the indictmen t and return a separate verdict as to each count of the indictment.”

The lack of indictment specificity and the evidence of multiple offenses warranted state election and an appropriate jury instruction under Shelton and Brown

. Thus, the trial court’s fail ure to require an electi on constituted error. How ever, the failure to elect may be harml ess beyond a reasonable doubt i n an appropriate case. See Shelton , 851 S.W.2d at 138.

In Shelton , the defendant was charged w ith one count of aggravated rape of one of his three step-granddaug hters and two counts of agg ravated sexual battery of the other two step-granddaughters. The victim of the aggravated rape testified in very general terms that the defendant digitally penetrated her and her two sisters on more than one occasion, but describe d in detail one incident that occurred on her birthday when the defendant was partia lly successful at his attempt to penetrate the victi m with his penis. Id . The medical expert testi mony was that there w ere clear signs of sex

ual abuse. Id . The court determined that it w as error for the trial c

ourt to fail to require the state to elect offenses but concluded th at the error with regard to the aggrav ated rape20

count was h armless b eyond a re asonabl e doubt b ecause “t he jurors must have considered the evidence of thi s particular incident i n convicting the defendant of aggravated rape.” Id

.

With regard to the remaining two c ounts of aggravated sex ual battery, the court held that the error w as not harmless beyond a reas onable doubt. Id . at 139. Important in this determinatio n was the nature of the evi dence presented with reg ard to each charge. Id . One victim testified that the defendant fo ndled her and digitally penetrated her on more than one occas ion, but she did not differentiate one ev ent from the others. Id . With respect to that victim, the medic al expert only found ev idence of irritation in the vi ctim’s genital area. Id . The court reversed the de fendant’s conviction because in “view of the nature of the evidence and the error resulting from the state’s failure to elect,” the conv ictions could not be sustai ned. Id . The other victim did not testify, and medical proof found no ev idence of irritation or any other physical proof. Id

. The only proof establishing the offense “was the brief and thoroughly non-specific testimony of the other two victims . . . .” Id . The court not only determined that there
was a Burlison error but also concluded that the evidence was i nsufficient to sustain the conviction. Id

.

The state asserts that any error by the state in failing to elect a specific instance for each count is harml ess beyond a reasonable doubt. The state argues that similar to the victi m’s testimony in State v. Shelton , 851 S.W.2d 134 (Tenn. 1993), the victim’s most specific

testimony in this case concerned the defendant’s digital penetration of the victim’s vagina in the liv ing room of the defendant’s residenc e near Hickman’s Junkyard dur ing the snowstorm in J anuary 1994. Howev er, given the victim’s admission during cross-examination that she had stated during the preliminary hearing that the defendant did not do a nything to her when she lived near the21

Hickman’s Junkyard, w e are not confident that all of the jur ors would have agr

eed beyond a reasonable doubt as to the commission of this offense.

On the other hand, we believ e that the record supports a c onclusion that the jury unanimously agreed, at least, to the offense described at the Cape Norris residence. That is, simil ar to Shelton , the risk of a composite jury simply did not exist in this case. The victim pr ovided specific testimony with respect to the offense. The quality and certainty

of her testimony as to this incident was strong . Moreover, the defendant’s evidence, through his statement, did not have the potential of diminishing the quality of the proof. His statement expressed, at best for him , a lack of recall regarding the offenses and, at w orst, the possibility

that the offenses occurred.
Also, the primary defense w as that the victim wa

s fabricating the episodes. However, given the fact that the jury accredited the victim, there is no basis in the evidence upon whi ch we can doubt the jury being unanimous as to the defendant’s guilt of the offen se at the Cape Norris residence. Under these circumstances, the Burlison error was harmless beyond a reasonable doubt.

IV. SENTENCING The defendant complains that the trial court improperly appli ed enhancement factor (7), the offense invo lved a victim and w as committed to gratify the defendant’s desire for pleasure or excitement. See T.C.A. § 40-35-114(7). He argues that there is not sufficient ev idence in the record to suppor t the application of the factor. The defendant also contends that he should hav e received a sentence of less than twenty years for hi s rape of a child convict ion.

Appellate review of sentencing is de novo on the record with a presumption that the trial co urt's determinations are c orrect. T.C.A. § 40-35-401( d). As22

the Sentencing Commission C omments to this section notes, the burden is now on the defendant to show that the sentence is improper. T his means that if the trial court followed the statutory sentencing procedure, made findings of fact that are adequately supported in the record, and gave due consideration and proper weight to the fa ctors and principles that are r elevant to sentencing under the 1989 Sentencing Act, w e may not disturb the sentence even if a different result were pr eferred. State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

However, "the presumpti on of correctness which ac companies the trial court's action is conditioned upon the affirmative showi ng in the record that the tr ial court considered the sentenci ng principles and all relevant facts and circums tances." State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). In this respect, for the purpose of meaning ful appe llate revie w,

the trial court must place on the record its reasons forarriving at the final sentencing decisi on, identify the miti gating and enhancement factors found, state the specific facts supporting each enhancement factor found, and articulate h ow the mitigating and enhancement factors have been ev aluated and balanced in determining the sentence. T.C.A. § 40-35- 210(f) (1990). State v. Jones , 883 S.W.2d 597, 59 9 (Tenn. 1994).

Also, in conducting a de novo review, we must consider (1) the evi dence, if any, received at the t rial and sentencing heari ng, (2) the presentence r eport, (3) the principles of sentencing and arguments as to sentencing alternatives, (4) the natu re and characteristics of the c riminal conduct, (5) any mitigating or statuto ry enhancement factors, (6) any statement that the defendant made on his own behalf and ( 7) the potential for rehabilitation or treatment. T.C.A. §§ 40-35-10 2, -103 and -210; see Ashby , 823 S.W.2d at 168; State v. Moss , 727 S.W.2d 229, 236-37 (Tenn. 1986).23 No witnesses testified at the sentencing hearing. A presentence report was introduced into evidence. The report reflects that the then thirty-six-year-old defendant had no prior felony conv ictions, although he had conv ictions for misdemeanor assault and driv ing under the influence of an intox icant. It shows that the defendant dropped out of high school in the ninth grade. The report s tates that the defendant began using alcohol and marijuana when he was t wenty years old, using them daily in large amounts until he turned thirty-five. The defendan t also reported his addiction to pain pills. The presentence report reflects tha t the defendant worked as a machine operator for approximately five months and worked off and on for eleven years as a mechanic.

At the conclusion of the sentencing hearing, the trial cour

t sentenced the defendant as a Range I, standard offender to concurrent sentences of twent y years and five years for his rape

of a child and incest convi ctions, respectively. In sentencing the defendant, the trial court appli ed the following enhancement factor s pursuant to T.C.A. § 40-35-114: (7) The offense invol ved a victim a nd was c

ommitted

to grat ify the defendant’s desire for pleasure or excitement; and (15) The defendant abused a position of pri vate trust. In applying factor (7) , the trial court did not detail the facts upon which i ts application was based. The trial cour t determined that no mitigati ng factors applied.
Under the circumstances of this case, the trial court appropriately considered factor (7). In the defendant’s statement, he prefaced his ac count with the statement that his wife “had been turning [him] away because she had som e cysts.” Although he denied that he wa s sexually attrac

ted to the victim, the defendant described his actions at the Cape Norris residence as being “a want to touch thing.” The defendant told Lieutenant Evans that a fter rubbing the victi m’s legs and between her legs for approximately fifteen to twenty minutes, the defen dant went into his24

bedroom and masturbated. The f act that the defendant continued to stimulate himself sexually after committi ng the crime suggests that the defendant was motivated to commit the offenses to gratify his desire for pleasure or ex citement. We conclude that the evidence supports the appl ication of factor (7) by a pr eponderance of the evidence. Under the circumstances of this case, a sentence of twenty years for the rape of a child conviction is war

ranted.

In consideration of the foregoing and the record as a whole , we affirm the judgments of conviction.

____________________________ Joseph M. Tipton, Judge CONCUR:

_________________________ Paul G. Summers, Judge

_________________________ Charles Lee, Special Judg e