# FILED
January 13, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON OCTOBER 1997 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. NO. 02C 01-9610-CR-00369 Appellee, ) ) SHELBY COUNTY VS. ) ) HON. ARTHUR T. BENNETT, DONALD P. SPICER, ) JUDGE ) Appellant. ) (Rape of a child; assault)

FOR THE APPE LLANT: FOR THE APPELLEE:
MARVIN E. BALLIN and JOHN KNOX WALKUP MARK A. MESLER (on appe al only) Attorney General & Repor ter 200 Jefferson Ave., Suite 1250 Memphis, TN 38103 KENNETH W. RUCKER Asst. Attorney General 450 Jame s Roberts on Pkwy. Nashville, TN 37243-0493 WILLIAM L. GIBBONS District Attorney General JENNIFER S. NICHOLS Asst. District Attor

ney General 201 Poplar Ave. Criminal Justice Center --Third Fl. Memphis, TN 38103

OPINION FILED:____________________
AFFIRMED IN PART; REVERSED AND DISMISSED IN PART JOHN H. PEAY, Judge1 It is the poli cy of thi s Court to i dentify minor victi ms of sex crimes by thei r initials.
2 Stone and the defendant have si nce been divorced. 2 O P I N I O N

The defendant was indicted separat ely for rape of a

child and aggravat

ed sexual battery. The offenses were co nsolidated for a jury tr ial at which the defendant was convicted of rape of a child and misdemeanor assa ult. After a hearing, the lower court sentenced him to ele ven mon ths, twenty-nine day s on the assault conviction, and to eighteen years inca rceratio n on the ra pe convict ion; he was also fin ed two thousand five hundred dollars ($2500) on each offense. The s entences were ordered to r un concurrently. In this appeal as of right, the defendant raises f ive issues:

1. Whether the evidence is suff icient to support his convictions; 2. Whether the trial court erred in or dering that the offenses be consolidated for trial; 3. Whether the trial court erred in fail ing to force the State to respond further to his motion for a bill of particulars; 4. Whether the trial court erred in f in ding one of the child victims competent to testify; and 5. Whether the indictmen ts are fatally defective for failure to allege a necessary element of the offenses. Upon our review of the rec ord, w e reverse and dismiss the defendant's conv iction for assault. The judgment below is otherwise affirmed.

FACTS On March 3, 1994, Debra Cather ine Stone and her

ten-year-old daughter LAS 1 went to the store. While there, LAS tol d her mother that they needed to talk. After they ret urned to th e car, according to Stone,LAS told her that, “My dad has been messing with me.”

By “dad,” LAS was referring to her step-father, the defendant. 2 Stone3

subsequently called her other daught er, twelve-year-

old ANS, and asked her if the defendant “had tr ied t o do anything to her.” According to Stone, ANS had responded, “Yes, ma'am.”

Stone then drove to Terry Jarvis' house. Jarvis was aspecial deputy and the defendant's employer. Jarv is told Stoneto call “the county” and Stone subsequently called the sheriff's department. By the time she got home

to pick up her other daughter, office rs had arri ved and ta ken the d efenda nt into cu stody.

Both daughters testified at trial. LAS testified that the defendant “would
come into my bedroom at night while my mom, and me, and my sister were as leep and he would take his priv

ate and put his private i nto mine.” She further testified that it had “hurt” and she had told the defenda nt to stop but he didn't. She tes tified that it had happened more than one time, with the mos t recent occurrence on t he Tuesday or Wednesday of the week in which she told her mot her.

AN S testified that the defendant had repeatedly tou ched her “private areas, ” indicating those to be her chest and genital regions. She testified that the first time had been shortly after a move. The defendant had entered her bedroom at about el even or twelve at night, she testified, and bu mped into some moving boxes , waking her. She testified, “And then he came over there and was trying to feel on me.” The defendant did not try to rape her, however.

Susan Yvette Neal, a reg istered nurse who examined both girls on March 7, 1994, testified that

the only abnormal finding she had made with r espect to ANS was
a vag inal discharge. With respect to LAS, however, she made two abnorm al findings:4

lackof a hymen and “an enlarged introitus.” She testified that bot h of these findings on LAS were “consistent w ith penetration.” She further testified that, “[w]ith this kind of an enlargement, without recent trauma, then this is something that has happened more than once.”

The defendant did not testify. Howev er, he called Jarvis

who testified that, while Stone and LAS had been at his house, LAS w as “petting the cat and w alking around there like nothing going on. . . . She wasn't upset or nothi ng, playing wi th the cat. I mean, you would n't have knowed anything was wrong.” Jarvis' son, Scott Jarvis, testified that he and his father had gone over toStone's house that evening to pick up a vehicle, at

Stone's request. While they had been there, Scott testified, he heard Stone askANS wheth erthe defendant had ever touched her, a nd that ANS had said, “No, mama, no.”

ANAL YSIS The defendant initially contends that the evidence is insufficient to support his convictions. We agree with respect to the simple assault and we therefore reverse that conviction and dismiss the charge. However, the evidence was sufficient to support the rape conviction and it is therefore affirmed.

When an accused challenges the sufficiency of the convicti ng evidence, we must re view the evidence in the lig ht most favorable to the prosecution in determining whether “ any rational trier of fact could have found the essential elemen ts of the crime beyond a reasonable doubt.” Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). W e do not reweigh or re-evaluate the evidence and are req uired to afford the State the strongest legitimate view of the proof contained in the record as well3 The tra nscript of the trial does not include the trial court's verbatim charge to the jury. However, a copy of the court 's writ ten charge i s contained i n the record.

5 as all reasonable and legitimate inferences which may be drawn therefrom. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978).

Questions concerning the credibility of witnesses, the wei ght and value to be given to the eviden ce, as well as factual issues raisedby the evidence are r esolved bythe trier of fac

t , not this Court. Cabbage , 571 S.W.2d 832, 83 5. A guilty verdict rendered by the jury and approv ed by t he trial judge accredits the testimony of the witnesses

for the State, and a presumptio n of guil t replaces the presumption of innocence. State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973).

Under Tennessee law, an assault may be committed in one of three ways: the defendant “(1) Intentionally, knowingly or recklessly causes bodily injury to another; (2) Intentionally or

knowingly ca uses ano ther to re asonabl y fear imm inent bo dily injury;
or (3) Intentionally or

knowingly cause

s physical contact with another and a reasonable person would regard the contact as extremely offensive or provocativ e.” T.C.A. § 39-13-101(a) (1991). In this case, thetrial court charged the jury 3 with only the second type of assault: that the defendant intentionally or knowingly caused ANS to reasonably fearimminentbodily injury. However, ANS did not testify that the defendant's actions had caused her to fear such injury. The child did testify that she hadgotten up from her bed
as the defendant was “trying to feel on [her]” a nd that she t hen went through sever al doorways trying t o avoid hi m, eventually going into her mother's bedroom, but these actions are as easilyexplained by disg ust, revulsion and/or an ger as they are by fear of imminent bodily injury

.

Indeed, the State does not even attempt to ar gue in its brief that the proof4 It was thi s most recent att ack which the Stat

e elected t

o submit to the

jury pur

suant to our doctrine r equiring e lection of of fenses

. See, e.g. , Burlison v . State , 501 S.W .2d 801 (Tenn. 1973). 6 supports this form of assault. Rather, i t arguesthat “this type of contact between astepfather and his step-daughter

certainly is offensive or provocativ e to a reasonable person.” While we certainly ag ree with this assertion, the jury was n ot given the op portunity to convict the defendant of that crime. The proof being ins ufficient to support the crime of which the jury did convi ct the defendant, we ha ve no choice but to reverse the assault conviction and dismiss that charge.

With respect to LAS, the jury convict ed the defendant of rape of a child. That offense is defined as “the unlawful sexual penetration of a victim by the defendant
or the defendant by a victim, if such victim is less than thirteen (13) y ears ofage.” T.C.A. § 39-13-522(a). The victim testified that the defendant “would come int o my bedroom at night while my mom, and me, and my sister were asleep and he woul d take his private and put his pri

vate into mi ne.” When asked if she was talking about the defendant's penis when she said “his pr ivate,” she responded y es. When asked if she was talking about her vagina when sh e said “my private, ” she said yes. She als o testified as to the positions that the defendant's body and hers had been in while t he attac ks were occurring. She further testified that “it hurt.” The most recent attack, she testified, had occurred earlier in the week in which she told her mothe r what had been ha ppening. 4

The nurse who

examined LAS testi fied tha t she “did not have a hymen” and that she “had an enlarg e d introitus.” Either of the se conditions, she testified, was “consistent

with penetration.”

Thus, the State adduced medicalproof which corroborated the victi m's testimony. In total , the evidence w as more than suffi cient for the jury to convict the defendant of rape of a chil d. This issue is without merit.7 The defendant next contends that the trial court err

ed when it granted

the State's motion to consolidate the indi ctments for a single trial. I n so ruling, the trial court stated: such cases, for judici al econ omy, should be tried together,

using the same witne

sses for the s

ame set of circumstances, just a different victi m, s ame household, . . . and [the State say s] on one occasion the children were together w hen h e was in there. So I feel thatunder those circumstances that we should join these indictments and not try them separately . . . . We respectfully disagree with the trial court's ruli ng in this regard.

Two or more indictments may be consoli dated for trial “if the offenses .

. . could have been joined in a sing le indictment . . . pursuant t o Rule 8 [of the Tennessee Rules of Criminal Procedure].” T. R. Crim. P. 13(a). Offenses may be joined in a single indictment

under R ule 8 “if the offens es constitute pa rts of a

common scheme or

plan or if theyare of the same or similar character.” T. R. Crim. P. 8(b). Once two or mor e offenses have been consolidated pursuant to Rule 8(b), however, “the defendant sha ll have a righ t to a sev

erance o f the offens

es unles s the offe nses ar

e part of a common schemeor plan and the evidence of one would be admissible upon the trial of the others.” T. R. Crim. P. 14(b)(1).

With respect to whether these offenses were part of a common scheme or plan, we first note a prev ious holding by this

Court that in order to be <

parts of a common scheme or plan' a s contemplated by Rules 8(b) and 14(b )(1), two or more se

ts of offenses must be so similar in modus operandi and occur within such a relatively

close proximity of time and lo cation to each other that there can b e l ittle doubt that the offenses were committed by the same person(s). The mere fact that a defendant has committed a series of . . . rapes, or a series of other crim es does n ot mean t hat they ar e part of a common scheme or plan although the offenses may be of the8 < same or similar character.' State v. Peacock , 638 S.W.2d 837, 840 (Tenn. Crim. App. 1982). We have since clarified this holding by deter mining that, “A common schem e orplan for severance purposes is the same

as a common scheme or plan for evidentiary purposes.” State v. Hoyt , 928 S.W.2d 935, 943 (Te nn. Crim. App. 1995). In the evidentiary context, proof of
a common scheme or plan falls into three categories: (1) distinctive design (“signature”) crimes; (2) a larger, continuing plan or cons piracy; and (3) the same transaction. Id.

In order to fit into the fir st category, there must have been a “unique method” used in committing the offenses. Hoyt , 928 S.W.2d a t 943, quoting Young v. State , 566 S.W.2d 895, 898 (Tenn. Crim. App. 1978). We donot think such a method
was established he re. We ack nowledge that both vi ctimstestified that the defendant had accosted them while they w ere at home and as leep in their bedrooms. How ever, the eldest victim testified that the defendant had also triedto fondle her before she went to bed while her mother

and sister had gone to the s tore on the evening

of March 4, 1994. Moreover, the types of assault committed on each victim were si gnific antly different: while the youngest child tes tified that the defendant had repea tedly had sexual intercourse with her, the elder c hild testified that

the defendant had not tried to rape her. The medical proof was consist ent with this testimony . Therefor e, we do no t find the modus operandi to be “so unique and disti nctive as to be l ike a signature.” Hoyt , 928 S.W.2d at 943.

The second category of continuing plan or conspiracy requires proof of “a working plan, operating towar ds the future with such force as to make probabl e the crime forwhich the defendant is on trial.” Id. There is no proof of such a plan here.Nor do these crimes fit within the same transaction category, which includes offenses committed5 In li ght of our hol ding that these offenses di d not belong t o a common schem e, it is ir relevant whether the evidence of one offen se would be adm issible at the trial of the other. 9 within a single cr

iminal episode. Id.

Because we find that the defendant's crimes against LAS and ANS do not constitute a “common sch eme or plan,” we hold that the court below erred in granting the State's motion to consolidate. 5 However, we fur ther find this error to have been harmless. At the close of proof, the State elected t w o very disti nct off enses to submit to the jury: forANS, the jury was instructed to consider her testimony “concerning the al lege d AggravatedSexual Ba ttery occurring in her bedroom in her bed of her home at 7037 Tulip Trail, Memphis, Tennessee duri ng the pe riod of tim e between July 1, 1993 and December

31, 1993; wherein t he defendant allegedly entered the victim's bedroom knocking the door against some movi ng boxes full of trophies.”

In contrast, the jury

was ins tructed to “con sider t he testi mony of [ LAS] con cerning the all eged Ra pe of a Chil d occurring in bed in a bedroom of her home of 7036 T ulip Trail, Memphis, Tennessee on approximately the Tuesday night March 1, 1994 prior to March 4, 1 994 when she disclosed the incident to her mother.” The court also instructed th e jury that, “Althou gh there are two indictments in this charge, ple ase reme mber that they are separate an d distinct cases an d you, the jury, shoul d treat them as such at all ti mes.” The jury was additionally instruc

ted: You may convict the defendant on both indictments, or acquit him on both indictments; or convict on one and acquit on the other. If you find from the evidence, beyond a reasonable doub t, the defendant guilty of each indictment, you should convict on ea ch. If you find from the evidence, bey ond a reasonable dou bt, o ne indictment guilty [ sic], and have a reasonable doubt as to the guilt of the other indictment, you should convict on th e on e you are satisfied beyond a reasonable doubt as to the guil t of, and acquit on the other. If you have a reasonable doubt as to the g uilt on both, you should acquit on both. Of course, a jury is p resumed to follow its instructions. See, e.g. , State v. Vanzant , 65910

S.W.2d 816, 819 (T enn. Crim. App. 1983).

While the defendant wasfound gui lty as charged in the rape of a child offense, the jury found him guilty of only a mis demeanor assault with res pect to the other charge. As set for th above, we have reversed the assault c onviction due to insufficient evidence. However, the disp a rity in t he verdicts indicates that the jury consider

ed the chargesand the evidence separately and did not convict the defendant of one offense based on the evidence of the other offense. It is the defendant's responsibi lity to show that he was cle arl y prejudiced by the t rial court's refusal to sever offenses. State v. Hodgkinson , 778 S.W.2d 54, 61 (Tenn. Crim. App. 1989). In this case, he has failed to do so. Accordingly , we hold that the defendant was not prejudiced by the low er court's error and a new trial

is not required. This issue is without meri t.

In his third issue, the defendant ar gues that “[t]he [

tr ial] court refused to
even grant h is moti on” fo r a bill of particulars. The defendant mischar acterizes what actually occurred. On the morning of trial, defense counsel told the court that he had filed
a motion for a bill of particulars “early on” and that the State had “answered, said I wasn't
e nt itled to one.” The court pointed out to defense counsel that if there had been a dispute over the motion, it should have been set for a hearing:“But that was not done.” Instead, defense counsel apparently w aited until trial to argue that the State's response to his motion was inadeq uate.

Our Rules of Criminal Procedure provide that a pretria l motion such as one fora bill of particulars “shall be determined before tr ial unless the court, for

good cause, orders that it be deferred” and that, “ Failure by a party to raise . . . objections

or to make requests which must be made prior to trial . . . shall constitute waiver thereof.”11

T. R. Crim. P . 12( e) & (f). This Court has r epeatedly held that “before tr ial” means sometime

earlier than the day of

trial. See, e.g. , State v. Aucoin , 756 S.W.2d 705, 709 (Tenn. Crim. App. 1988). Thus, the defendant's failure to timely pursue his motion for a bill of particulars renders this issue waiv ed. Furthermore, as pointed out by the State, the defendant's motion for

new trial does not rai se this issue, thereby constituting a separate ground for waiver. See T.R.A.P. 3(e).

The defendant next conten d s that the trial court er red in ruling LAS competent to testif y. He bases his argument primarily on the w

itness's admission during voir dire by defense counsel that she did not know what an o ath was. The defendant relies on Tennessee Rule of Evidence 603 which provides that, “[b]efo re testifying, every
w itn ess shall be required to dec lare that the witness w ill testify truthfully

by oath or affirmation, administ ered in a f orm calcu lated to awa ken the w itness's conscience and impress the witnes s's mind wi th the duty todo so.” However,the general rule of competency is that “[e]very per son is presumed competent to be a witnes s except as otherwise provided.” T. R. Evid. 601. Our Supreme Court has ruled that, “[s ]o long as
a witness is of sufficient capacity to understand the obligation of an oath or affirmation, and some rule or statute does not provide otherwise, the witness is competent.” State
v. Caughron , 855 S.W.2d 526, 53 8 (Tenn. 1993). The determination of a witness's competency is left to the tri al court's discretion. Id.

In this case, the prosec utin g attorney first ques tioned LAS outside the presence of the jury and LAS demonstrated h er understanding of the difference between the truth and a lie. The court then continued the voir dire examinat ion, aski ng LAS, “No w, you remember a few moments ago when you came in and I raised my han d and yo u raised your hand and you sw ore to tell the truth, the w hole truth, and nothing but the truth,12

so help you God?” LAS answered, “Yes, sir.” When the court then asked her what that meant, she respon ded, “It means to tell the truth and not to tell a lie.” The court continued: “Now, you underst and, then, the nature of the oath, that that's what that is -- you're required to do when you swear to tell the truth?” LAS again responded, “Yes, sir.” The court asked a few

questions later, “And what are you going to do while you're on the stand?” LAS answered, “I'm going to tell the truth.” The court asked, “Are you going to tell part of the truth or all of the truth?” and she answered, “All of the truth.”

We think the trial court properly determi ned LAS competent to testify. The defendant argues that our Supreme Cour t's decision in State v. Ballard , 855 S.W.2d 557 (Tenn. 1993), requires us to find the trial court in er ror. We disagree. Ballard instructs
us that, “When examining a child's compete ncy to testif y a jud ge should determine whether the child understands the nature and meaning of an oath, has the intelligence to unde rstand the subject matter of the tes timony, and is capable of rel ating th e fact s accurately.” Id. at 560. The case does not requir e that the child understand the defin ition of an oath. See also State v. Fears , 659 S.W.2d 370, 375 (Tenn. Crim. App. 1983) (So long as a witness i s “sensitive to the obl igation to tell the truth under oath

. . . there is no

requirement that [she] hav e sufficient academic learning to define an oath or articulate its obligations.”)

Under Ballard , a trial court must det ermine the competency of a vi ctim of
a child sex abuse crime in order to permit the chil d to testify “if it can be determined that the child understands the necess ity of telling the tr uth while on the witness stand.” 855 S.W.2d at 560. The voir dire examinations of LASestablished that she did understand that she had to tell the truth while testifying, and that she understood the dif ference between the truth and a lie. Her inability to define the term “oath” did not require the trial13

court to find her incompetent. The trial court did not abuse its discretion i n allowingher testimony, and this issue is therefore without meri t.
In his final issue, the defendant attac ks the sufficiency of

his indictments, al leging that each fails to allege an essential element of the offense a nd that hi s convi ctions are therefore void. The defendant relies on this Court's opin ion in State v

. Roger Dale Hill, Sr. , No. 01C01-9508-CC-00267, Wayne County (Tenn. Crim. App. filed June 20, 1996, at Nashville) . However, our Supr eme Court has overruled the Hil l decision, holding that unlawful sex ual penetration of a person less than thirteen years old “is committable only if the principal actor's mens rea is intentional, knowing, or reckless. Thus, the required mental state may be inferred from the nature of the criminal con duct alle ged.” State v. Hill , __ S.W.2d _ _, __ (Te nn. 1997) . In thi s case, one of th e indictmentsagainst the defendant provided that he “d id unl awfully sexually penetrate [LAS], a person less than thirteen (13) years of age. ” Under H ill , this indictment is sufficient. The other indictment alleged that he “did unlawfully engage in sexual contact with [ANS], a person less than thirteen (13) years of age.” This Court has previously held tha t, “Because sexual contact is defined [in T.C.A. § 39-13-501( 6)] as intentiona l touching, the mens rea is necessarily implied.” State v. MiltonS. Jones, Jr. , No. 02C01- 9503-CR-00061, Shelby County (Tenn. C rim. A pp. filed March 7, 1997, at Jackson). Thus, both indictments are val id and this issue is w ithout merit.

The evidence being insufficient to support the jur y's verdict of assaul

t, that conviction is rev

ersed and the charge is di smissed. In all other res pects, the judgment below is affirmed.

______________________________ JOHN H. PEAY, Judge14

CONCUR:

______________________________ PAUL G. SUMMERS, Ju dge

______________________________ DAVID G. HAYES, Judge