### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE September 28, 1999 S ession

STATE OF TENNESSEE v. JAMES DAVID SHROPSHIRE

Appeal as of Right from the Criminal Court for Knox County

No. 51598 Richard Baumgartner, Judge

No. E1998-00872-CCA-R3-CD December 12, 2000

In March 1996, James David Shropshire, the defendant and appell ant, was convicted in the Knox County Criminal Cou rt of ag gravated sexua l battery a nd simple assault. F

ollowing the jury

’s verdict, the trial cou rt dis missed the simple as sault charge. On appeal, the de

fendant challen

ges his conviction for aggravated sexual battery. He r aises the following issues: (1) whether the evidence

was sufficient to support the conviction; (2) whether a variance between the bill of particulars and the proof adduced at trial was fatal; (3) whether the defendant’s conv iction violat ed the double jeopardy clauses of th e United States and Tennessee Constitutions; (4) whether the state made improper closing arguments; and

(5) whether

the trial court erred in allowing the state to introduce evidence that the defenda nt had committed pri

or bad acts. Because the

jury heard evidence that the defendant committed a crime other than that for which he was on trial, which was the subject of an acquittal, the judgment of the trial court is reversed.

Tenn. R. App. P. 3 Appe al as of Right; Judgme

nt of the Criminal C

ourt is Reversed a

nd Remanded.

J ERRY L. S MITH , J., delivered the op inion of the court,

in which G ARY R. W ADE , P.J. and J AMES C URWOOD W ITT , J R ., J., joined.

Kenneth F. Irvine, Jr., Knoxville, Tennessee, for the appellant, James David Shropshire.

Paul G. Summers, Attorney General and Reporter, Eri k W. Da ab, Assistant Attor ney Gener

al, Randall E. Nichols, District Attorney General, and Charme Knight, Assistant District Attorney , for the appellee, State of Tennessee.1 It is the pol icy of this Court not to reveal the names of minor vi ctims of sexual abuse.

2 Although the defendant was indicted for a violation of Tenn. Code Ann . § 39-13-522 (rape of a child), that
statu te was n ot codified until 199 2 becau se fundin g was n ot appro priated. See Tenn. Code Ann, § 39-13-522, Code Commission Notes (1991). Because the defendant was i ndicted for acts

that he al

legedly per

formed in lat

e 1991, the offense fo r which the defen dant wa s indicted d id not exist a t that time.

-2- OPINION

Factual Backgrou

nd

During autumn, 1991, A.L., 1 a seven-year-old female, was living wi th her grandmother, Glenda Shropshire, and Ms . Shropshire’s hus band, the defend

ant. Ms. Shropshire often worked at night, and the defendant worked during the day. Cons

equently, th

e defendant was

often home with A.L. at night. After A.L. overheard Ms. Shropshire and

Ms. Shropshire’s daughter (A.L.’s mother) discussing child molestation in July 1992, A.L. told her mother and grandmother that the defendant had molested her back in 1991. Ms. Shropshire took A.L. to a hospital to have her examined. The hospital referred A.L. to the Department of Human Services. DHS, in turn, referred A.L. to Dr. Campbell, a child abu se specialist. Dr. Campbell examined A.L. in September 1992 and determined that A.L. had some sort of traum a to her genital area that was consistent with the allegations A.L. had made a bout the defendant. On May 5, 1993, the Knox County Grand Juryindicted the defendant for one count of rape of a child and two counts of aggravated sexual batt ery. 2 During the trial on September 20, 1995, A.L. testified that the defendant moleste d her on several occasions. First, she testified that she watched the movie “Peter Pan” with the defendant. During the movie, the defendant picked her up andpretended that A.L. was flying a round the room. As he was holding her, the defendant touched A.L.’s vagina. She then testified that, on another occasion, the defendant was alone with her

in his bedroom and placed his fin

ger in her vag

ina. She also

testified that he d

id that again on a s

eparate occasion. Final ly , A.L. recounted two ep isodes in which the

defendant forc

ed her to touch his penis, andone incident during which the defendant showed her a “white, or

clear” substance on his finger. After A.L. finished

testifying, the state

called Dr. Campbe

ll, the child

abuse expert who examined A.L. Dr. Campbell testified that her examination of A.L. yielded results consistent with the charges. The state then rested. The defense called

Ms. Shropshire as it

s first witness. She

testified that she

didnot believe the defendant molested A.L. Following Ms . Shropshire’s testimony, the defendant testified. He stated that, during the time period inquestion, A.L. had exhibited inappr

opriate behavior

toward him, i.e., she tried to see him in the shower and tried to “rub herself” on his foot. He also testified that A.L. had once awakened him from a nap by trying to touch his g enitals. After the defendant’s testimony, the

defense rested

. Following the p

roof, the state e

lected one of the

incidentsin which the defendant allegedly placed his finger in A.L.’s vagina as count one (agg ravated rape), the Peter Pan incident as count two (aggravated sexual battery), a nd one of the incidents in which the defendant allegedly forced

A.L. to touch his penis as count three (aggravated sexual battery) . The3 In that case the Court of Criminal Appeals held t

hat fail ure to all ege a culpabl

e mental st

ate in an i

ndictment was fatal.

-3- jury acquitted the defendant on count two but was unable to reach a verdict on counts one and three. The judge then d

eclared a mistri

al on those counts. The defend ant was retried for one count of aggravated sexual battery and one count of aggravated rape in March 1996. The proof in the second trial was almost exa

ctly the same as that presented in the first trial, except that in the second trial the defendant did not testify. Just as in the first trial, the state electe

d one incident in wh

ich the defenda

nt placed his fing

er in A.L.’s vagina as the aggravated rape and

one of the in ciden ts in which the de fenda nt for ced A. L. to touch his penis

as the aggravated sexual

battery. The jury convicted the defendant of agg ravated sexual battery, and of simp le assault, a lesser included offense of aggravated rape. Following the Court of Criminal Appeal s’s decis ion in State v. Roger Dale Hill, Sr. , 01C01-9508-CC-00267, 1996 WL 346941(Tenn. Crim. App., Nashville, June 20, 1996), however, the trial court dismissed the charges against the defendant. 3 The Tennessee Supreme Court reversed the Hill decision in State v. Hill , 954 S.W.2d 725 (Tenn. 1997), and, consequently, the Court of Criminal Appeals reinstated the defendant’ s convictions. Following a motio n by the def

endant, the trial

judge dismis sed the simple assault conviction because

it had been char

ged after the s

tatute of limitations had expired. The defendant th en moved the trial court to dismiss the aggravated sexual battery conviction, but the trial co ur t declined. Sufficiency The appellant first contends that the evidence at t

rial was legall

y insufficie

nt to convict him of aggravated

sexual battery. In Tennessee, g reat weight is given to the result reached by the jur y in a criminal trial. A jury

verdict of guilt

accredits the sta

te’s witnesses an

d resolves all con

flicts in favor of the state. State v. Bigbee , 885 S.W.2d 797, 803 (T enn. 1994); State v. Harris , 839 S.W.2d 54, 75 (Tenn. 1992). Therefore, on appeal from a verdict of guilt, the state is entitled to the strongest legitimate view of the evidence and all reasonable inferences which may be drawn therefrom. State

v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). Moreover, a guilty verdict removes the pre sumption of innocence which the appella nt enjoyed a

t trial and raises

a presumption of g

uilt on appeal. State

v. Grace , 493 S.W.2d 474, 476 (Tenn. 197 3). The appe llant has the burde n of overcoming

this presumption of guilt. Id. Where a defendant challenges the sufficienc y of the evidence on appeal, the relevant question for the reviewing Court is whether, after viewing the evidence in the li ght most favorable to the prosecution, any

rational trier of

fact could

have found the essential elements of the crime beyond

a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virgini a , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2

d 56 (1979); State v. Abrams , 935 S.W.2d 399, 401 (Tenn. 1996). In this case, the defendant was convi cted of aggravat

ed sexual battery

. At the time of his conviction, Tenn. Code Ann. § 39-13-504 (1991) provided:

(a) Aggravated sexual battery is unl awful sexual contact with a victim by the defendant or the defendant by a victim accompanied by any of the c ircumstances listed in § 39-13-502(a).4 A 1992 amendment to Tenn Code Ann. § 39-13- 502 deleted t he subsect

ion that prohibit

ed sexual pene

trati on of a victim less than thirteen (13 ) years of age an d created a new Class A felony charge of rape of a child. This Court held, in State v. Case , 884 S.W.2d 146 (Tenn. Crim. App. 1994), however, that

aggrava ted sexu al battery w as still a cri me under T enn. Co de Ann . § 39-13 -504 if it inv olved a v ictim under th ir teen (13) yea rs of age,

even though the subsecti on had been delet

ed. In 1993, t

he legisl ature codi

fied thi s decisi

on in a new versi

on of section 50 4. See Tenn. Code A nn. § 39 -13-50 4 (1997 ).

-4- One of the circumstan

ces listed in Tenn.

Code Ann. § 39-13-502(a) was that: ( 4) the victim

was less than thirteen (13) years of age.4 In this case, the victim testified that she was under thirteen (13) years old at the time of the incident in question, and that

the defendant forced her to touch his penis. This constitutes unlawful sexual contact with a vic

tim under thirteen

(13) year s of age. Thus the

evidence was suf

ficient to convict the defe

ndant of aggr

avated sexual batt

ery. This iss

ue is without merit.

Bill of Particulars The defendant also claims that theevidence was insufficient because the proof at trial varied from the incidents alleged in the bill of particulars. Specifical ly, the defendant claims the proof variedfrom the bill of particulars because (1) the bill of particulars alleged that the defendant caused the victim to touch his penis with her mouth, but the victim testified attrial that the defendant caused the victim to touch his penis with he r hand, and (2) the proof did n ot establish that the

incidents happened within the time peri

od alleged in

the bill of particulars. Because we find that any variances were neither material nor prejudicial, we disagree. In this case, the bill of particulars stated [t]hat the defendant

. . . did on the ____ day of September, 1991, and

on dive rs and diverse dates between that day and the ____ da y o f November, 1991, sexually penetrate [A.L

.] by placing

his f i nger in [her] vagina. The defendant also had sexual contact with [A.L] by touchi ng hervagina with both his penis and his mouth. The defendant also cause

d [A. L. ] to have contact with him by causing [her] to touch his penis with her mouth. . . .

The purpose of the bill of particulars is to provide the accused with sufficient information about the offense allege d in the indictment to p ermit the accuse

d (a) to prepare

a defense, (b)

to avoid prejudicial surprise at trial , and (c) to

enable the accused to preserve a plea of double jeopardy. State

v. Byrd , 820 S.W.2d 739, 741 (T enn. 1991) ; State v. Campbell , 904 S.W.2d 608, 611 (Tenn. Crim. App. 1995). Those purposes were adequately served in this case. A variance between an indictment or a sub s equent bill of particulars and the evidence presented at trial is not fata

l unless i t i s both material and prejudicial. State v. Moss , 662 S.W.2d 590, 592 (Tenn. 1984); State v. Ealey , 959 S.W.2d 605, 609 (Tenn. Crim. App. 1997). The variance is not to be regarded as material when the indictment and proof substantially correspond. State v. Mayes
, 854 S.W.2d 638, 640 (Tenn. 1993) (citations omitted). A material variance occursonly if the prosecutor has a

ttempted to rely

upon theories and

evidence at t

he trial that were n

ot fairly embraced in the allegations made in thecharging inst rument. Id. ; Ealey , 959 S.W.2d at 609. I n this
case, although the bill of particulars cha rged th at the defendan

t had forced the v

ictim to touch his5 U.S. Co nst. Amend V; Ten n. Const. art. I, § 10.

-5- penis with her

mouth, the victim testified that the defendant forced her to touch his penis with her hand. The allegation

s contained in the b

ill of particular

s substantially

corresponded w

ith this proof. Furthermore, the defendant was no t subject to unfair

surprise, becau

se the victim had g

iven the same testimony in th

e first trial. The

refore, this slig

ht variance was

not material. The defendant also c

laims that the victim was unable to consistently testify as to when the offense took place. In Byrd , the Tennessee Su preme Court reco

gnized that in

most child sex abuse

cases the state is una

b le to offer the specific date when an alleged offense occurr ed. 820 S.W.2d
at 7 41. When the timing of the incident is not an essential element of the charges , a n accused' s conviction may be affirmed if it appears the defense of the accused was not hampered by the lack of specificity of the charging instrument. Id. at 742. In this case, the victim testified that the inci dents in question occurred in 1991. Although the time frame in the bill of particulars was somewhat narrower than that alleged by the victim, the defendant was not hampered by the victim’s failure to testify

as to the month in

which the incidents occurred. The defendant had ample notice of the victim’s testimony, because the victim’s testimony in the second trial was virtually identical
to her testimony in the first trial. Furthermore, the defendant did not present an alibi defe nse for the date s set forth in the bill of particulars,

nor has he offer

ed any indic

ation that he mi

ght hav e presented one wereit not for the dates in the bill of particulars.

In short, the d

efendant has fa

iled to show how any variance between the bill of

particulars and the proof at trial prejudiced his defense. This issue is without m

erit.

Double Jeopardy The appellant also cl

aims that the state

violated his double

jeopardy r

ights in the secon

d trial. He argues that because the jury acquitted him of aggravated sexual battery (count two in the orig inal trial), th e acquit

tal foreclosed a

ny opportuni

ty the state m

ay have ha

d to subsequently

charge him with a similar crime during the time period listed in count two of the presentme nt. Because

count three of the pre

sentment charg

ed the defendan

t with aggravated sexual battery (the same statutory crime as count two in the original trial) during the time period listed in count two of the presentment, the defendant arg

ues that this is a viol

atio n of his rig

ht t o be pro tec ted agai nst dou ble jeo pard y. While the appellant bases his argument on a line of cases beginning with State v. Byrd , we do not agr ee that the principles announced in Byrd and its pro geny change the fun damental m eaning o f double jeopardy. “Such a rule would create an insuperable obstacle to the administration of justice in many cases in which there is no semblance of the type of o ppressive practices at which the double-jeopardy

prohibition is aimed.” Wade v. Hunter , 336 U.S. 684, 688 -689, 69 S. Ct. 834, 836-837, 93 L. Ed. 974 (1949). The double jeopardy

prohibition, which

protects defend

ants from “twice

being placed in jeopa rdy for the same offense,” protects against (1) a second prosecution for the same off ens e following acquittal, (2) a

secondprosecution for t

he same offense

after convictio

n, and (3) multiple punishments

for the same offense. 5 North Carolina v. Pearce
, 395 U. S. 71 1, 89 S . Ct. 2072, 23 L. Ed. 2d 656 (1969). It is the first protection that is at issue here.-6-

In Byrd , the trial court dismissed a multi-count pre sentment when the

state was unable

to significantly

narrow a broad time-fram

e alleged in tha

t instrument. Upholding this Court’s reversal of the trial court, the Tennessee Supreme Court opined, in dictum, that the broad time-frame alleged in the presentment d

id not violate the de

fendant’s double

jeopardy r

ights because “the sta

te would obviously be stoppedfro m initiating subsequent prosecutions for any similar offenses against the

samevictims occurring

within the same

time period.” Byrd
, 820 S.W.2d at 741 (citations omitted )

. The Su preme Court echoed that dictum in State v. Shelton , 851 S.W.2d 1 34, 137 (Tenn

. 1993). In that case, the Court reversed the defendant’s conviction for ag gravated sexu al battery because although the state had presented evidence of multiple acts that could constitute aggravated sexual battery, the trial judge had neglected to forc e the state to elect an act upon which to rely. The Courtexplained thatthe election requirement normally serves to (1) allow a defendant to a

dequately preparefor tri al, (2) pro tec t th e def end ant fro m do ubl e je opa rdy, and (3) protect the defendant’s right
to a unanimous jury verdict. Shelton , 851 S.W.2d at 137 (citing Burlison v. State, 501 S.W.2d 801, 803 (Tenn. 1973)). The Court then opined that the “second concern [of the Burlison Court] is largely
moot[in this case], because an accused is protected from double jeopardy for the type of offense or offenses charged during the entire time period covered in the indictment.” Shelton , 851 S.W.2d at 137 (citin g State v. Hardin , 691 S.W.2d 578, 580-81 (Tenn. Crim. App. 1985)). This case is distinguishable from Byrd and Shelton because here the original charge ended in a mistrial. It is well-settled that the protectio

n of the Double Jeopa

rdy Clause b

y itsterms applies only if there has been some event, such as an acquittal or a conviction, that terminates the original jeo pard y: "[W]ithout exception, th e courtshave held that the trial judge may discharge a genuinely deadlocked

jury and require the def

endant to submit

to a second trial. This rule accords recognition
to society's interest in giving the prosecution one complete opportunity

to convict those

who have violated its laws." Arizona v. Washington , 434 U.S. 497, 5 09, 98 S. Ct . 824, 832, 5 4 L. Ed. 2d 717 (1978) (emphasis added). Thus, neither the failure of a jury to rea ch a ve rdict nor a t rial court's declarationof

a mistrial following a hung jury is an event that terminates the original jeopardy

. Id. ; Ri chardsonv. United States , 468 U.S. 317, 323-24, 104 S. Ct. 3081, 3085, 82 L. Ed. 2d 242, 25 0 (1984); Statev. Mounce , 859 S.W.2d 319, 322 (Tenn. 1993). In this case, the jury in the first trial failedto reach a verdict as to counts one and three. Thus, original jeopardy never terminated on either of those counts until the jury’s verdict in the second trial. This issue is without merit.

Closing Argument Next, the defendant contends that the state’s closing arguments were improper, because the prosecutor

arg ued fac ts not properly in evidence. After a thorough review of the trial record, we disagree. Technically

, this issue is waive

d due to counsel' s failu

re to impose contemporaneous objections. T.R.A.P. 36(a); State v. Seay , 945 S.W.2d 755, 762 (T enn. C rim. A pp. 19 96). In addition the defendant’s argument fails on the merits. "Trial courts have substantial discretionary authority in de termining the propriety of final argume nt. Although counsel is generally given wide latitude, cour ts must restrict any improper commentary." Coker v. State , 911 S.W.2d 357, 368 (Tenn. C rim. App. 1 995) (citi ng Sparks v. State
, 563 S.W.2d 5 64 (Te nn. Crim. App. 1978) ). The broad disc

retion accorde

d to trial courts in controlling the a

rgument of coun

sel "will not be re

viewed absent ab

use of that discretion." Smith-7-

v. State , 527 S.W.2d 737, 739 (Tenn. 1975); see also State v. Payton
, 782 S.W.2d 490, 496 (Tenn. Crim. App. 1989). The bounds of proper closing argument are delineated by the facts in evidence. Statev. Pulliam , 950 S.W.2d 360, 368 (T enn. Crim. App. 1996). Conversely, facts not in evidence may not be t he subject of comment by counsel during closing arg ument. State v. Mackey , 638 S.W.2d 830, 836 (Tenn. Crim. App. 1982). The defendant first

complains that the prosecutor mischaracterized the pediatrician’s testimonyduring closing argument. We disagree. During di rect examination, Dr. Campbell was specifically

asked “[W]ould these findings be consistent with a finger being placed in the child’s vagi na?” She replied, “[Y]es, any object actually if it just made trauma or damage to that area that would heal like that.” Dr. Campbell further testified that “[the findings] would be extremely unusual for accidental injury.” In his closing argument, the pr osecutor stated “[Dr. Campbell] told you that that penetration that she saw is exactly consistent with

what happened. She said this is exactly what she would expect to find if a finger we

re placed inside

her vagina.” D

r. Camp bell’s test

imony indicatedthat the injury was consistent with digital penetration; thus, the prosecutor’s remark was not a mischaracterization. The defendant also complains that the victim was allowed to testify that she saw “white stuff

on the finger” of

the defendant, and that the prosecutor mentioned this in his closing argument. As will be discussed below, this testimony was relevant not only to show the relationship betwe en the victim and the defendant, but to refute the defense’ s contention that the victim initia ted contact. Because it was properly admitted as evidence, referring to it in a clos i ng argument was not error. Ne xt, t he defendant complains that after describing each act which was electe d, the prosecutor

stated that each specific act occurred mor e th an o nce. Spe cif ica lly, the prosecutor stated that “[the victim] told you that [the defendant] put his finger inside her vagina. She also told you that that happene

d more than one time .” The prosecuto r also stated “[the

victim] told you how he made her move her han

d up and down on [the d efendant’s] peni

s. And she told you that that happened more than one time.” During tri al, the victim specifically testified that the defendant placed h is finger in her vagina twice , and that h e forced her t o touch his penis twic e. The state 's argument was properly based upon evidence that ha d been presented to the jury. The defendant also complains that the prosecutor referred to other evidence outsi de the record in his closing argument. Specifically, the prosecutor stated “[the victim] told Tammy Judd with the Dep artment o

f Human Se

rvices[:] S

he said ‘h e abused m

e.’ What di

d she tell t

he next pers on, Nanc y Jackson Eldridge? The same story, ‘this man sexually abused me.’” Again, we disagree with the defendant. During cross examination of the victim, the defense attorney asked the vic tim wheth er she remembered telling Nancy Jackson Eldridge that the sexual abuse occurred during 1991, and the victim responded affirm atively. Furthermore, During the state’s redirect examination of the victim, the victim testified that Tammy Judd came to her house and took a statement regarding th

e sexual abuse. Fi

nally, durin

g the defendan

t’s c lo sing argument

, defense counsel stated “[a] month later [A.L.] talked to [Tammy Judd], a police officer. She tells the story [about the sexual abuse] again.” Thus, the prosecutor’s closing argument was proper. This issue is without m

erit.6 The rule mandates, however, that certain condit

ions must be sat

isfied bef

ore the evidence may

be admitt

ed. The conditions whi

ch must be sati

sfied before a

llo wing suc

h evidence

are: (1) The court upon

request must hol

d a hearing outside the jury's presence; (2) the court must de termine that a material issue exist s other than conduct conforming with a c

haracter trait and must u

pon request sta

te on the record t

he material i

ssue, the ruling, and the reasons for admitti

ng the ev idence; and (3) the court must exclude the evi

dence if its

probative value is outweigh ed by the danger of unfair prejudice. In thi s case, the defendant did not request a jury out hearing.

-8- Prior Bad Acts Fin all y, the defendant cl aims that the trial court erred in admitting evidence that the defendant had committed sexual crimes other than the ones corresponding to the counts listed in the presentment. Specifically, the defendant complains that the prosecutor should not have been able
to elicit testimony (1) that the defendant gaveA.L. “more bad touches” than those elected, (2) that the defendant tried to force A.L. to eat “a whitish, clearish” substance on the defendant’s finger, and (2) that the defendant touched A.L.’s vagina while the two watche d Peter Pan. In Tennessee, evidence that the defendant has committed other crimes is gover

ned by Rule of Evidence 404(b). The rule states: “[E]vidence of other crimes, wrongs, or acts is not admissible
to prove the character of a person in order to sho w acti on in c onfor mity wi th th e char acter trait . It may, however, be admissible for other purposes.“ Tenn. R . Evid. 404 (b). The rule establishes procedures which the tria l court must use in deciding whether evidence should be admitted or excluded. 6 Only in an exceptional case will another crime, wrong, or bad act be relevant to an issue other than the acc used's character. State v. Luellen , 867 S.W.2d 736 , 740 (Tenn. Crim. App. 1992). S uch e xceptional cases include identity, intent, motive, opportunity, or rebuttal of mistake or acciden t. Id. In this case, the defendant did

not object to the intr

oduction of prior a

cts; thus
, technically, this issue

is waived. T.R.A.P. 36(a). We find, however, that testimony regarding the “other bad touches” and

the substance on th

e defendant’s f

in ger was admi ssible to show the relationship

between the defendant and th e victim, the oppor

tunity the de

fendant had to co

mmit the crimes, and to rebut th e defense’s assertion that the victim and the defendant were never alone together. Furthermore, the victim testified that the se events occur

red when she was

in the first grade, bef

ore Christmas. The presentment listed the applicable time period as September and November

1991. although Te

nnessee does not h

ave a “sex-crime

s” exce ption to the general prohibition against character evidence, we are satisfied

that the incidents o

ccurred within th

e time periodcovered in the pr

esentment, and ar

e thus admissible pu

rsuant to State v. Rickman , 876 S.W.2d 824 (Tenn. 1994). Admission of the Peter Pan inc ident, however, w

as preju dicial to the defendant for other

reasons. A prerequisite

to admitting evidence under Rule 404(b) is that the trial court find by clear andconvincing evidence that the defendant committed the pr ior crime. Tenn. R. Evid. 404 (Advisory Commission Comments); State v. DuBose, 953 S.W.2d 649, 654 (Tenn. 1997); State v. Parton
, 694 S.W.2d 299, 303 (Tenn. 1985). The Ten n essee Supreme Court has construed the requirement

that the trial court find that the defendant committed the crime by clear and convinc ing evidence to preclude the introduction of evidence of a prior crime when a jury has acqui tted the defendant of committing that

crime. In State v. Holman , the defendant was charged with theft of a wrist watch. 611 S.W.2d 411 (Tenn. 1981). Over the defendant’s objection, the trial court allowed the state to introduce evide

nce that the defe

ndant had previou

sly stolen another wrist watch in the7 Dictum in Holman , howev er, sugge sts that use of th e other crim e may b e perm issible if the acquittal

was based

on something other than insuff icient evidence. Holman , 611 S.W.2d at 413. In this case, the acquitt al could onl

y have been based on insuf

ficient evidence. There was no question that t he victi m was under thirt

een (13) years

of age at t

he time; thus, the jur

y must have concluded thatthe state failed to prove an “unlawful sexual cont

act.” Tenn.Code Ann. § 39-13-504.

8 The dissent

in Holman note s th at,by ado pti ng th is r ule, the Tennes see S upreme Court adopt s a mi nori ty vi ew. Holman
, 611 S.W.2d at 413 (Fo nes, J., dissenting)(cit ing 86 A.L.R.2d 113 2). Moreover, the view that an act which has been the subjec

t of acquit

tal may never be

introduced a

s a prior crime in se

ntencing has

been reject

ed in sent

enc in g proc eedings
, because “[a]n acquitt al is normally not consi dered for evidentiar

y purposes to equate with fac tual innocence, only with t

he existe nce of a reasona ble dou bt. As such , an acqu ittal is not view ed to negate th e possibility that criminal involvement may be shown to have existed by a preponderance of the evidence.” State v. D esirey

, 909 S.W.2d 20, 31 (Tenn. Cri m. App) perm. to appeal denied(Tenn. 1995). Finally, because prior crimes must be proven by clear and c onvincing evi dence and guil

ty verdict

s are base

d on proof beyond a

reasonable doubt, the Unit ed States Supr eme Court decli

ned to automati

cally excl

ude such evidence on the basi s of collateral

estoppel. Dowling v. United States
, 493 U.S. 342, 110 S.Ct. 668, 107 L. Ed. 2d 708 (1990). Nevertheless, t he Holman decision re mains th e law in Tennessee.

-9- samem anner he had s tolen the watch at issue. The trial court also denied the defendant the op portunity to prove that he ha d been acquitted

for the previous c

rime. The Tennes see Supreme Court reversed th

e conviction, rea

soning that the effect of any acquittal is to render less than “clea r and convincing” the proffered evidence that the defendant committed the prior crime . . . . For such evidence to have any re levance or use in the case on

trial, the jury

would have to infe

r that, despite the acquittal, the defendant nevertheless was guilty of the prior crime. No such inf

erence can pr

operly be d

rawn from an ac

quittal .

. . . 7

Holman

, 611 S.W.2d at 413. Thus, the Supreme Court announced that evidence of a crime for which the defendant was a

cquitted can nev

er be admissible

as evidence of a pr

ior crime in a tria

l, despite its rel evan ce on iss ues oth er t han pro pen sit y. 8 In this case, the state introduced evidence during the second

trial that the defendant touched the victim’s vagina

whil e watchi ng Peter Pan, even though the defendant had been acquitted of a charge made in connection with that behavior in thefirst trial. This incident would only have been relevant if the defendant had intentionally touched the victim’s vagina. As noted above, howe ver,

an acquittal precludes the possibi lity of a n inference that the defendant committed the crime. Furthermore, the jury in the first trial was unable to reach a verdict on the charg e under review here. Thus, given that the ev

idence at the sec

ond trial was almost identical to the first and the possible prejudicial effect of introd ucing evidence

of a crime

for which the defendant was acquitted, we are unable to conclude that exclusion of the Peter Pan incident would not have affected the result in the second trial.-10-

Acco rdi ngly, the judgment of the trial court is reversed and remanded for a new trial on the char ge of aggr avat ed s exu al b att ery.

___________________________________ JERRY L. SMITH, JUDGE