### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE April 23, 2002 Session

STATE OF TENN ESSEE v. EVANGE LINE COMBS and

JOSEPH D. COMBS
Consolidated Direct Appeal from the Criminal Court for Sullivan County

Nos. S41,992 & S41,993 R. Jerry Beck, Judge

No. E2000-02801-CCA-R3-CD No. E2000-02800-CCA-R3-CD September 25, 2002

The Defendants, Joseph D. Combs and Evangeline Combs (husband and wife), we re charged b y presentment

returned by

a Sullivan County grand

jury with numerous offenses: Joseph Combs was indicted for one count of especially aggravated kidnapping , two counts of aggravated a ssault, one count of agg ravate d perjur

y, o ne count of agg ravated rape, and seven counts of r ape. Evangeline Combs was indicted for onecount of esp ecial ly aggravate d kid nappi ng, three counts of aggra vated assault, two count s of assault, and four counts of agg ravated child abuse. Following the close of all proof, th e trial co urt dismiss ed one c ount of ag grava ted assa ult in the pr

esentme nt against both Defend ants and three counts (one for agg ravated assault and two for si mple assa ult) ag ainst Evangeline, finding

the offe nses in the se four c ounts were b arred b y the statute of limitati ons. Following deliberation, the jury f ound Defendant Evangeline Combs guilty of

especially a

ggravated kidnapping and four counts of aggra vated child a

buse, and not guilty of one count of aggravate d assault. Defend ant Joseph Co mbs was fo und guilt y of especia lly aggravated kidnapping , aggravated assault, aggravated per

jury, and aggravated ra

pe, in addition to seven counts of rape. Evangeline Combs received a sentence of 65 years, a nd Joseph Combs received an effective sentence of 114 ye ars. The Defendants, represented by different counsel, filed separate notices of appeal. Ther eaft er, the two cases were

consolidated to form the instant appeal which presents the following issues: (1) whether the trial cou

rt prope rly conducted voir

dire proceedings; (2) whether the trial court erred by allowing the State

to amend the presentment for especially aggravated

kidnapping; (3) whether the Stateproperly c omplied with Defendants’ request for a bill of part i culars regarding the

charge of especia lly aggravat ed kid nappi ng; (4) whether the trial court improperly admitted evidenc e of prior bad acts; (5) whether the

evidence was sufficient to support the Defendants’ convictions; (6) whether the trial court’s instructions to the jury included all appr opriate lesser-included offenses; (7) whe ther the trial cou

rt faile d to fully

and prop erly

instruct t he jury concer ning the especia lly aggr avated kidnapping charge; (8) whether the trial cou rt erre d by

failing to merg e the con

victions f or cert ain offense s; and (9) whether the sentences imposed on both Defendants were proper. Defendant Joseph Combs additiona

lly p resents the issue

of whether seve

n of his ei ght rap e convic tions s hould be
r eversed beca use the State failed to allege sufficient fa cts in the presentment to properly toll the statute of limitations for these offenses. After a thorough review of the rec ord, we reverse Defenda nt-2-

Joseph Combs’ conviction for aggravate d perjury a nd remand the matter for a new trial on that charge. I n all other respects, we affirm the judgme nts of the trial court as modified.
Tenn. R. App. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed in Part, Reversed in Part, and Modified in Part.

T HOM AS T. W OODA LL , J., deliver ed the opinion of the

court, in which J ERRY L. S MITH , J., joined. G ARY R. W ADE , P.J., filed a separate concurring opinion.
Stephen M. Wallace , Distric t Pu bli c Defender; Terry L. Jordan, Assistant Public Defender; and Joseph F. Harrison, Assistant Public Defender, Blountville, Tennessee , for th e appellant, Evangeline Combs; and R

ichard A . Spivey , Kingsp ort, Tenn essee, f or the ap pellant, Joseph D. Com

bs.

Paul G. Summers , Attorne y General and Repor

ter; Pete r M. Coug

hlan, Ass istant Atto

rney Genera l; H. Greeley

Wells, Jr., District Attorney General; and B arry Staubu s, Assistant District Attorney General, for the appellee, State of Te nnessee.
OPINION

FACTUAL BACKGROUND

On February

18, 1997, the Bristol Tennessee Fire Department was alerted that a 911 call for assistance was received from the Emanuel Ba ptist Church (“EBC”) loc ated on We aver Pike in Bristol, Tenness ee. Timot hy E stes, JamesGouge, and Jewel R ogers, paramedics with the Bristol Fire Department, arrived at EBC at appro ximately 11:10 a.m. to discove

r a ninet een-y ear-ol d woman, later ide

ntified a s the victim, Esther Combs, laying on the

back seat of a

van in the parking lotof the ch

urch. Es tes testif

ied at tri al that Es ther wasdemonstr ating “ se izure-like activity” and “thrashing about,” with her arms and legs waving when he found her. Although she was aw ake and talking, Estes believed that she was not coherent or a ware of her surroundings.

Defendant

Joseph Combs was present when the paramedics arrived. He told Estes that Esther
was initiall y di sc overed in the bathroom. The family removed her from the bathroom, placed her in the van, and then telephoned 911 . Estes asked Joseph to show him where they discove red her. Joseph unlocked the door to a y ellow building nearby . The y entere d a f oyer, tra veled through a seconddoor and proceeded through the fellowship hall. Estes testified that the hall w as window less and containe d two or thr

ee sofa beds, flankedby a reg

ular wall and two large plastic sheets. Clothes and trash were strewn about the floor, with pa thways formed be tween the piles of debris. Estes found nothing extrao rd in ar y in the bathroom and returned to the parking lot. Meanwhile, James Gouge, anoth er para medic , had b een wor king w ith Esther. Gouge testified that he asked a y oung man who was sitting on the other side of the seat near Esther ’s head how long shehad bee

n like this. The young ma

n turned away

and said n othing. G

ouge r epeate d the ques tion, but a gain received no
answer. When Estesreturne d, the par amedics transpor

ted Est her to Well mont Bristol Regional Medical Center (“Medical Center”).-3-

Esther turned away

from the paramedics and curled up into a fetal position on the way to the Medical Center. As she did this, her shirt raised a bit. Estes and Gouge observed scars on he r back. When Gouge and Esteslifted the shirt a bit further , they

noted add

itional sc arring . Her ha

nds, arms , chin, and forehe ad were also scarred. The paramedics re ported their observations to the medical personnel once they a

rrived at the hospital and to the deputy police chief when they

returned to the fir e station . Estes testified that, during his seventeen y ears as a paramedic, he had ne ver before observed that many

scars on a single person.

Esther Combs arrived at the Medical Center at approximately 11:30 a.m. Dr. Gregory

Allen Gerlock, the emergency

room physician on duty

at tha t t ime, was the first person to examine her. At trial, he described Esther’s initial condition as “acutely ill” and somewhat delirious. Her vital signs were stable, but Dr. Gerlock was concerned a bout her “mentation” and the “numerous scars all across her bod y.” He te stified that there were “scars on top of sca rs all over” but, given the emergency

nature of the encounter and the number of scars, it was not practical to map them during the exam. Unable to extract any cohe rent answers or information f rom Esth er regarding he r condition, Dr. Gerlock asked Joseph Combs whether

he knew how she had acquired the marks on her body. Joseph re sponded, “W hat marks?” When Dr. Gerlock replied, “All the scars over her bo dy,” Joseph informed him that Esther “falls a lot.” At trial, the prosecutor asked Dr . Gerlock whether, based on his experience and training, he considered the explanation receive d from Joseph Combs (i.e., that the injuries were caused by falls) to be consistent with the scars and condition of Esther’s body. Dr. Ger

lock responded negatively . Joseph had also informedDr. Gerlock that Esther
was “adopted.” However, Dr. Ge rlock clai med that he was extremely va gue concerning any additiona l informa tion, such as wher e the ado ption occurred or

any other specific de

tails.

Terri Matney, also on duty in the Medical Center’s emergenc y roomon February

18, 1997, testified that Esther

was “real hy sterical” when she arrived. She appea red disoriented and

confused and kept repeating, “I ’m sorry. Don’t hur t me. I made the coffee.” Ma tn ey t ri ed , u ns uc ce ss fu ll y, to calm her down. The medical staff then pumped her stomach. Matney obser

ved scars “from head to toe” on Esther’ s neck, f ront side , arms, ba

ck, and legs. She h ad neve r befor e seen a patient w ith that many scar s. Emergency room nurse Vickie Lee

Blaylock w as responsible for takin g blood pressure reading s on Esther . At trial, Blay lock testi fied tha

t each tim

e she touc

hed Esthe r’s arm, Esther would say, “I ’m sorry. Don’t hur t me. I’ll be good,” ove r and over again. Blaylock corroborated

Matney’s obser

vation, i.e., that Esther was thrashing, screaming, and cr ying-- in astate of delirium--when she initially ar rived at the hospital. Blaylock said that late r, when Esther calmed down, she became combative only when someone touched her.

Dr. Gerlock

treated Esther un til her co ndition sta

biliz e d, at which point he recommended that she be admitted into the hospital. Esther was transferred to the Cardiac I ntens ive Car e Unit (“CICU”) of the Medical Center. Elizabeth Ow ens Cribb, the assistant nurse manager for the Critical Care Division, was instructed to take photographs of the scars on Esther’ s body. She did so
on February

18, 1997, the day Esther a rrivedat the hospital. Cribb testified at trial that Esther’s body presented layers of sc ar tissue along the inside of her thighs and her back, neck, forehead, and c hin.-4-

Esther was drifting in and

out of consciousness during the photograph session. Later, when Esther be ca me co he re nt , C ri bb he ar d h er as k f or he r f am il y.

Dr. Jennifer Quesenberry

Stiefel was the resident phy sician in charge of Esther’s care at the Medical Center. Dr. Stiefe l’s initial evaluation took place in the emergency room, shortly after Esther arrived. She described Esther’s condition at that time as “critical.” Her ey es were closed and she was moaning. Verbal communication was not possible. Dr. Stiefel spoke with Joseph C ombs, who related

the following info

rmation: E sther ha

d gone t o bed at a

pproxima tely 3:00 a.m. that mornin g, complai ning only of a mild headache and some abdominal pain. L ater that morning, at approximately 11:00 a.m., they discovered

her crumpled onthe bathroom floor. Dr. Stiefel asked Joseph whether

Esther ha

d a histor

y of medic al or beh avioral problems. Joseph reported no problems , other than some fainting and dizzy spe lls over the last two or three y ears, but reported that Esther had never been evaluated by a physician. When asked whether there was a cha nce that Esther had ingested any

substance, e.g., household chemicals, alcohol, et c etera, capable o f alte ring her
me nt al st at us , h e r ep li ed ne ga ti ve ly.

When Esther became

able to converse intelligibly , she informed Dr. Stiefel that she recalled going to bed at appro ximately 3:00 a.m. on February

18, 1997, and waking up in the Medical Center three days later. Dr. Stiefel testified that Esther denied d rinking antifreeze and, when she asked Esther how she ha

d manag ed to acc

umulate so

many scars, her answer was nearly identical to that later received from both parents: “I ’m a clumsy person. I play roug

h and I fall a lot.”

Dr. Stiefel ordered a variety of tests performed in an effort to accura tely determine

the caus e of Esther’s abnormal mental condition, including an arte rial blood gas test. The gas test revea led
a conditio n called

me tabolic acidosis, which indicated that the patient’s blood was highly acidic. With this in formation, Dr. Stiefel narrowed the problem down to approximately five potential disease processes, one of them being ethy lene gly col poisoning, and started Esther onan ethan ol drip withbicarbonate, the treatment of choice when ethylene

glyc ol ingestion is suspected. Over time, Esther’s condition began to improve.

Dr. Kenneth

Emile Fe rslew, a n expert in

the area of pharmacology and toxicology, testified that ethylen e glycol, the chemical compound commonly known as antifreeze, is toxic if ingested. If the toxin is not

removedfrom the person’s sy stem, two things typically occur. First, the central
nervous sys tem is depressed, the effect of which re sembles alcohol intoxication. Second, the liver metabolizes the compound to for m various acids, or metabolites, including oxalic acid. In a period of two to three

day s, the oxalic

acid will bind with c alcium to f

orm calc ium oxalate

cry stals, which
causes kidney failure . If left untreated, death usually occ urs within several day s of ingestion. After reviewing the hospital records and studying the sy

mptoms presented by Esther on F ebruary 18, 1997, Dr. Ferslew concurred with Dr. Steifel’s opinion that she wa s suffering from et hylene glycol poison ing and co ncluded that she was also treated appropriately . During cross-examination, Dr. Ferslew was aske d whethe r a spec ific test

for ethy lene gl yc ol poisonin g existed

and whet her it was pe rformed

in this case. Dr. Ferslew replied that such a test e xisted but, according to the m edica l record s, it was not performed. On redirect, he explained that this was because the Medical Center-5-

didnot have the ability to perf orm the test on site and it would have taken several day s to g et th e results back. In a ca se where the sy mptoms of ethylene g

lycol toxicity

are observed, as in this case,
a confirmation test would be senseless because the phase of re nal toxicity, which then causes dea th, would already

have occurred.

With regard

to Esther’s physical state, D r. Steifel’s “head to toe” examination revealed the follo wing: Esther was responsive to tactile stimulation, i.e., any ty pe of touch would startle her. Old
scars ran the l ength o f her bod y, f ront a n d back, with the area of gre atest concentration being the back and buttoc

ks. The le

ngth of t he scar s varied

and they appear ed to be di st ri bu te d h or iz on ta ll y. Many overlapped each other. None of the scars were rec ent, and the causati ve injurie s appear ed to have occurr

ed at dif ferent times. I n respons e to quest

ions about

the origins of Esth er’s sc ars, EvangelineCombs informed Dr. Stiefel that “Esther was a very clumsy child. She played roug

h. She fell a lot. And she was a very active child.” Evangeline claimed that Esther ha d been bo rn with clubbedfeet, wh

ich contr ibuted to h

er clums iness. An examination of Esther’s feet revealed “no clubbing,” however . Dr. Stief el alsoreported

that Esther’s teeth were in “horrible” condition. She had multiple

dental c aries (a

lso known as “cavities”), a severe ove rbite, and clearly

had received no dental care in

recent ye ars. Dr. Stiefel noted that, at appro ximately 90 pounds, Esther

was emaciated and underweight for her

height a nd build. She was als o unable t o fully extend her

left arm , due to
an injury of some kind. A pelvic examination revealed that her hy menal ring was in

tact with smooth borders--a finding she claimed wa s not inconsistent with penile penetration of her vagina.

The prose cutor asked Dr. St iefel if, ba sed up on her expe rience and tr ainin g an d within a
reasona ble degre e of medi cal cer

tainty , she could state

whether the scars observed on Esther’s back
were self-inflicted. Dr. Stiefel responded that those scars did not fit the pattern or typic al distribution shape of self-inflicted scars. When asked the same question conce rning the scars on Esther’s head and scalp, Dr. Stiefel replied it was “possible,” but “highly unlikely ” that the causative injuries were self-inflicted. As for the other scars, Dr. Stiefel testified that the appe arance

of some were consistent withburn injuries; others appeared linear, which would be c onsistentwithcuts made into the flesh. Burn wounds we

re loca ted on Esth

er’s ar ms , thighs, and backside. Dr. Stiefel was informed by Evangelinet hat these wounds were the result of cooking a ccidents, as Esther frequently prepared family meals. Dr. Stiefel testified that, all things considered, the scars on Es th er’s body we re inconsistent with the personal/medical history provided by Evang eline and Joseph Combs.

Dr. Stiefel learned that Esther was adop ted at the

approxima

te age of five or six months and that she hadlived with the Combs family since that time. Esther had neve r attende d public sc

hool. Rather, she had been home-schooled, as wer e the other Combs children. Evangeline claimed that Esther had the equivalent of a 12th grade e ducation and was preparing to take the “ GED” ex am. As for Esthe

r’s emplo yme

nt status, Dr. Stiefe l was informed that Esther’s job was to care for the children in the church nursery and work for her father, performing cleaning services and secr etarial duties at the church.

Susan Francis Early , a clinical social worker employ ed by the Medic al Center , was ask ed to investig ate the suspicions of abuse prompted

by E sther’s c ondition. E arly testifie d that her

first visit-6-

with Esther occurred

on February

19, 1997, while Esther

was still in the hospital. Early noted the
scars on her face, abdomen, breast, and back. She recalled that the scars on her ba ck were thick and raisedapproximately 1/4 inch above her skin, running in a “sideway s” direction from the base of her neck to her buttocks. Sections of hair were m issi ng from the t

op of Esthe

r’s hea d. Early questioned both Evangeline and JosephCombs as t o t he or ig in of th e s ca rs on Es th er ’s bo dy. Ini ti al ly, neither def

endant wou ld respond to her question. Later, Eva ngeline informed Early

that Esther “fell a lot and

was clumsy.” Esther was discharged on Fe bruary 25, 1997. Prior to Esther ’s departure, Early informe d her that the Department of Human Services oper ated an adult protective services program and that the pr ogram w as respo nsible fo r investig ating su spected

cases of abuse and/or neglect concerning a

dults over the age of 18. Esth

er told Ea rly that she w anted to

return to her family a

nd subsequently did so.

Debbie Ri ch mo nd -M cC au le y, a det ective w ith the Br istol, Ten nessee Po li ce Departm

ent, wa s also alerted to the possibility that Esther was a victim of

abuse. Detective McCauley arrived at the Medical Center

during the evening on Febr uary 18, 1997. E sther wa s unclothe d and semi -consci ous. McCauley

noted the scar

ring on E sther’s f

ace, ne ck, che st, inner

thighs, b ack, butt

ocks, arms, ha

nds, and legs. She took photographs. When Esther reg ained consciousness, McCauley questioned her about the scars and showed her the photographs. Esther would not look at them or make ey e contact withher. During their meetings, Esther experience d periods of shaking and stuttering; her right leg shook very ra

pidly.

Over the next few days, McCaule y spoke with the e

ntire Comb s family : the par ents, Joseph and Evange

line; Esthe

r’s broth ers Jimmy , David

and Peter; and her sisters Cindy and Sarah. Joseph complete ly disavowed any

knowledge of

Es th er ’s sc ar s, cl ai mi ng th at he ha d n ev er ob se rv ed an y. Accord ing to Joseph, Esther played “roug h,” was “very

clumsy,” and “f

ell a lot on the pavement.” She was outgoing, bu t did n ot have a boyf riend or any

outside friends. Joseph also claimed that punishmentof the Combs children took the form of restrictions on their television privileges and/or their liberty (“g

rounding”) and that he had not spanked any of the chi ldren since they were sma

ll. Joseph i n formed McCauley that Esther was adopted, but he did not recall where the a doption occurred. Joseph was stutterin g and sh aking w hile McCa

uley questi one d him. She a sked him to sign a statement. He refused.

The statemen

ts Detec tive McCa

uley receiv ed from E

vangeline Combs w ere ver y si milar to Joseph’s, to wit: she had never seen the sc ars; she was unaware that Esther had any scars; Esther was clumsy and slow; she fell a lot on pavement; she was outgoing and rough; shecooked a lot, which may have caused any

burns that she suffered; the children had not been spanked since they

were very young; and Esthe

r was adopted. Ev angeline did not r ecall where th ey had adop ted Esthe

r. She told McCauley

that she w ould

find out a nd give this infor mation to he

r, but, accord

ing to Mc Cauley , this never happened.

On March 5, 1997, shortly after he r release from the hospital, Esther visited Dr. Stiefel for follow-up care. Joseph and Evangeline Combs accompanied he r to Dr. Stiefel’s office, and Evangelinewent with

her into th

e examina

tion room. Esther di d not give Dr. Stief el any n ew-7-

information as to the cause of her hospitalization and she reported no additional problems, other than
a recent burn wound on her right

third finger. She returned three weeks later, on March 26th. The burn wound on her finger was hea ling.

At approximately 8:00 a.m. on March 24, 1997, McCaule y accompanied a number

of police offi cers and firemen with a search warra nt for the Emanuel Baptist Church, the location of the Combs family residenc e. The search warrant permitted

inspection of the premises for safety and fire code violations

. They knocke d on the doors and could hear people talking and moving ar ound inside the building, but

no one responded. The officers also telephone d the residence, but no one answered their calls. Af ter atte mpting to gain entry for a

lmost three hours, the officers finally forced the doors open with a crowbar and entered at approximately 11:00 a.m. The entire Combs family wa s inside the building and still wearing their sleepwear. Joseph and Eva ngeline Combs claimed

that they did nothear any

knocking on the door and that they were unaware anyone was outside. The police officers and firemen began an investig ation of the interior and took photos which revealed, among other things, the following conditions: piles upon piles of trash bags, with pa thways in betwee n them; mice in the kitchen, some dea d, with mous e fece s scatter ed about; pools of black liquid in and under the kitchen sink; piles of dirty dishes and spoiled food; a lar ge room with numerous beds and televisions; cats, birds, and other animals living inside.

On July 2 8, 1997, D etective McCauley

filed a la

wsu it on behalf of Esther Combs, the purpose of which was to ap point a guardian ad litem and conservator to ensur e that Esther

received medical care, education , medica l insurance, oppo

rtunitiesfor employme

nt, a driv er’s l icense , and other standard personal documentation, such as a birth certifica te, Social Security ca

rd, et c etera. In an order dated September 11, 1997, the court appointed attorney D avid William Tipton to act as Esther’s guardian ad litem. A hearing date was set for October 3, 1997. On the day of the he aring, Esther failed to app ear. Da

vid Tipton, Detecti ve McCauley , and Joseph Combs wer

e prese nt, h owever. Ac cording to McCauley , Joseph claimed that Esther had run away and that she was
unawarea hearing had bee n scheduled. Joseph

further claimed t hat, althoug

h he had s poken wit

h her on the phone and seen her during churchservices, he had no knowledge of her wherea bouts at that time. At trial, David Tipton corroborated McCauley ’s testimony, stating that Joseph Combs had testified that he did not know whe re Esther Combs wa s and that he had no t seen he

r in at lea st a couple of week s. Tipton a

lso testif ied that Jose

ph was u nder oat h when he made the above statemen ts. Richard Edward Ladd, Cha ncellor of the Second J udicial District, presided at the hearing an d s im il ar ly t es ti fi ed th at Jo se ph Co mb s h ad de ni ed ha vi ng an y k nowl edge of Esther’s whereabouts and that he was under oath whe n he did so.

On October

3, 1997, the entire

Combs f am ily drove Esther to the home of Sonja Caroline Meadows

. Meadows testified that they were waiting for her when she arrived home after work at approxima

tely 5:00 p.m. that afternoon. At Joseph Combs’ request, Meadows had agreed to drive Esther to a Waffle House restaurant on the interstate nea r Spartanburg, South Carolina. Meadows testified that

the trip “had something to do with [Esther] appearing in court that day.” Esther

brought withher some

clothes, stuffed in plastic grocery bags, and a cellular telephone given to her by

Joseph-8-

Combs. They

left at approximately 5:30 p.m. Esther was in “ba d shape” during the drive. She cried frequently a

nd spoke to Joseph numerous times on the telephone.

At approximately midnight, M eadow s arrived at the Waffle House restaurant a nd met Douglas Carpenter, a personal friend of the Combs family and a pastor at the Palmettoland

Baptist Church near Charleston, South Carolina. Carpe nter testified at trial that he had offered to keep Esther with him an d his famil

y f or a while “to give her some relief f rom the pr

essure c ooker.”Via the media, Carpenter was aware that Joseph Combs w as being

investig ated and

that the w hole fam ily
was under a great deal of stre ss. Initially , Joseph declined Carpenter’s offer. Later, Joseph accepted. Carpen tersai d he had little knowledge of the court proceedings involving the Combs family; he knew that Esther was involved in some form or fashion, but he was uncer tain to what extent.

Esther stayed with the Carpe

nter family for

approximately four or five we eks. Carpenter testifie d that, dur

in g this time, there is no question that Joseph or Evangeline Combs knew of Esther’s wherea

bouts. Esth

er sp oke with

one or both of them at least once a day by telephone. Carpenter said that E sther oc casiona lly c ried, usu ally

at night , and they

did their b est to con soleher, butmost of the time she “did real well.” Esther accompanied the Carpenter fa mily on shopping trips and attended church y outh functions with Donna, Douglas Carpenter’s daug hter of similar age. The two girls became good friends. On cros s-examination, Carpenter stated that his family did not restrict Esther in any wa

y during he

r visit. She appeared

to feel very

comfortable living with them and behaved like a “normal teenager.” Occasionally, she would say that she missed her pa rents and wanted to go home. She never indicated that she ha d been ab used at ho me or that she was fearful of returning there. On redirect, Carpenter admitted that he had obser ved scars on Esther’s body, but paid little atte ntion to th em be ca us e t he y ha d “ al wa ys been there.” He noticed that Esther wa lked witha limp , but testif

ied that sh

e did not a

ppear c lumsy

or fall a lot. I n fact, h e saw he r fall onl y once. The Carpenter family had plans to visit Israel on November 12, 1997. Esther su gges ted to themthat she stay with her a unt and uncle, Susan and Roger Combs (Joseph Combs’ brother and sister-in-law) w hen they left . Joseph Comb s agre ed. Two o r three day s before

the Carpe

nters’ departure for Israel, Douglas drove Esther to a Hardee’s resta urant in Denmark, Sout

h Carolin a. Roger Combs met him there

and then d

rove Esth er to stay with his fa

mily at their home in

Georgia. Thereafter, the Carpenter f amily’s contact with Esther w as limited.

Susan Combs testified that Esther a ppeare d very

nervous a

nd withdra

wn, small a

nd “fraillooking,” when she arrived at their home in Georgia. E sther also cried a lot, jumped when touched, and avoided m

ost attempts t

o make ey

e contact. She possessed only a fe w “shabby,”long-sleeved dresses and a cell phone. She could print, albeit po orly , but was u nable to w rite cur sive-sty

le or spell well. She was also unab le to make chang e with

money or drive a

car, and she did not have a Social Security card or driver’s license. She ha d n ev er he ar d o f E lv is Pr es le y. At first, s he also r efused t o go outside the house alone. Every three or four day s, she tal k ed with one of her parents on the telephone. After

these co nversat

ions, she u sually

appear ed upset.-9-

Susan noticed c

hange s in Esther’s physica l appearance and demeanor after she stay ed with themfor a while. She had gained weig htand changed her attire, e.g ., she started wearing jeans and other styles of pants. She also established eye contact when she communicated with people, seemed gener ally happier , and laug

hed fre quently . Althoug

h she wasrelucta

nt to walk past the edge of the yard by herself f

or quite a while, they

continuou sly

encoura ged he r to try and she e ventuall y did so.
Esther telephoned Detective McCauley on F

ebruary 20, 1998 from Watkinsville, Georgia, while she was living with Roger and Susan Combs. McCauley drove to Ge orgia, interviewed Esther, and took a sta

tement. F rom there , McCaule

y w ent to the

Baptist Ch

ildren’sHome in

Indiana, where she subsequently discovered that the Defendants had

never legally

adopted Esther. Esther’s natural mother was Rachel Garcia, a woman who lived in Michig an, north of Detroit. McCauley

contacted Ms. Garcia, who then agreed to a blood test which conclusively prove d that she was Esther’s natural mother.

Dawn Rose Loftis, office manag er of the Baptist Children’s Home in Valparai so, Indiana, testified that the home functioned as both an adoption agency and a group home facility in 1977 (the year of Esther’s birth). At trial, Loftis identified the adoption agreement for “baby

Garcia” (Esther), datedMarch 1, 1978 and signed by Joseph and Evange line Combs, in which th e partie s agre ed to ad optthe baby girl within six months and also pay a fee to defra y the home’s expenses. L oft i s testified that the infant Garcia was given to the Combs be fore the a doption was finalized. On September

10, 1980, t

he home se nt a letter to the Combs, at their Indiana addr ess, requesting that they send a copy of

the fina l decre e of adop ti on. The letter was not returned, and no reply was forth comin g. The home sent a second letter of request on January 9, 1984. Again, the letter was not returned and no reply wa s received. More than ten y ears later, on March 11, 1994, a third letter was sent. The letter was returned and stamped: “Forwarding Order Expired.” As of the date of trial, the fileon baby

Garcia reflec ts that the hom e did not receive a final decree of adoption or any othe

r communication from the Combs after November 8, 1979.

On March 6, 1998, Detective McCauley brought Esther back to Dr. Stiefel for ree xamination. Approximatel y one yea

r had transpired since the hospital incident and Esther’s last examination. Dr. Stiefel noted that Esther had ga ined a sig nifican t amount of

weight (approxima

tely 24 pounds) and appeared “healthy , rosy.” She ma de eye contact during conversation and the condition of her teeth had gr eatly improved. Esther

was then-currently

experiencing nightmares and pain in various parts of her b ody, howe ver. Du ring the appoi n tment, she also admitted that she had suffered repetitive beatings with baseball bats and electric cor ds and that she had ingested antifreeze the y ear before, in an attempt

to commit suicide because she saw “no escape.” Dr. Stiefel’s ree xamination revealed no new or additional scarring on Esther’s body.
During cross-examination at trial, Dr. Stiefel testified that Esther’s March 1998 appointment was set up by Detective Debbie Richmond-McCauley , who informed her that Esther was then “in hidi ng” at the behest of protective services. Dr. Stiefel ac knowledged that the February 19 9 7 hospitalization discharge summary stated that Esther had “firmly denied any

type of phy sical abuse in either the past or the present” and tha t she had a

ls o refused to take advantage of any form of-10-

protective services. Dr. Steifel also testified that Esther’s family w as not present on every

occasion that Esther denied suffering abuse. How ever, Dr. Stiefelremarked that Esther appeared “extreme ly nervous” during their discussions concerning protective service options.

The victim in this case, Esther Combs , t estified at trial that she had recently changed the
name on her bir

th certif icate to E lsa Rache l Garcia . (Notwith standing the name

change , in this opinion we shall refer to her by the name she was called when the offe nses in this case were committed.) At the time of tr ial, Es ther was twenty -two year s old (date of birth: November 16, 1977). She had five “siblings” while a member of the Combs family: James was the oldest; Esther
came next; the thi

rd oldest was Davi d; then ca

me Cindy , Peter, a

nd Sarah , in that orde r of age. Esther testified that both Joseph and Evangeline had inf ormed her that she was adopted by the Combses at the ag e of four -and-one-half

months. Jose

ph told her

that her mother wa s Hispanic

and her father was Caucasian.

Esther’s first memories as a child took pl ace when the Combs family lived in Merry ville, Indiana. At that time, Jos eph Co mbs t aught a t a Bib le col lege for novice pastors. The Combs moved from Indiana to Florida

sometime in 1986, when Esther was six or seven years old. Joseph worked
as a pastor in Florida for

a few ye ars. Thereafter, they traveled to various states, evangelizing on the roadand living

in a tr ai ler for a

pproximate

ly o ne and one-half

ye ars. I n April 198 9, the fa

mily settled down in B ristol, Te nnessee , where

Joseph bec ame the p astor of EBC. The

y liv ed in the trailer for a few moremonths, then transferred their re sidence

to a yellow buil ding on th e church premise s, which als o housed th

e church gy

mnasium and fellows hip hall.
During Esther’s testimony, the State informed the trial court that it was pre paring to ask some questions wh ic h c on ce rn ed on ly Defe ndant Evangeline Combs. A hearing ensue d outside of the presence of the jury

. Thereafter, th e t ri al co ur t i ns tr uc te d t he ju ry, pr io r t o t he vi ct im ’s te st im on y, that it should consider the upcoming evide nce only as to the g

uilt of Defendant

Evange line until directed to do other

wise. The

jury was also told to consider the evidence of other crimes pre sented at tr ial for the limited purpose of constructing “the complete story ” of the crime of especia ll y aggravated

kidnapping, and n ot as proo f of eithe r Defendant’s di sposition to commit a similar crime. As to the other counts, the jury wa s to consider the evidence in determining only whether Evangeline possessed “guilty

knowledge.”
Following the trial court’s limiting instruction, Esther began with testimony concerning the wounds and abuse inflicted upon her by Evangeline while the fa m ily lived in I

ndiana. Esther identified a

photograph of herself with larg e bandages covering both of her hands and arms up to the elbows. According to Esther, the underly ing injuries were burns caused by hot oatmeal. Evangeline had taken the

other ch ildren to w ash their

hands an d instruc ted Esthe r not to touch the stove while she was gone. Esther nevertheless stirre d the oatmeal in an effort to help, but she dropped the spoon into the pot in the process . When Eva ngeline discover ed the spo on had fa

llen into the oatmeal, she forced Esther’ s hands int

o the hot f

ood until she retrie

ved it. He

r hands a nd arms we

re burnt as a result, and the wounds were very painful. Evange

line band aged th

em herse lf. Esthe r did not receive medical treatment. Another time, Evangeline pushed Esther because she was not climbing the stairs-11-

fast enough. Esther tripped and hit her chin, which left a scar. Esther

testified that the scar on her right hand was caused when Evange line openeda pair

of scissors and used one of the blades to cut her. An additional scar onher hand was caused when Evang eline held Esther’s hand on a red-hot stove burner for an extended period of time. T

he various marks o n her che st and another on her left
arm resulted from those occasions when Evange line would twist and pull Esther’s skin with a pair of needle-nosed pliers until a chunk of flesh ca me off. Esthe r furthe

r testified that her

front tee th
were in poor condition because they were previously

knocked out of her head. This took place after
one of the other children had “turned her in” for jumping on the bed. To teach Esther not to do this again, Evangeline picked her up by her arm and leg, swung her a round, and threw her into th e wall. She hit the wall with h

er fac e, and fo

ur front teeth fe ll out. She was not taken to a dentist. Instead, Evangelinepushed the teeth back into Esther’s head. After a while, they rea

ttach ed. As an additional form of punishme nt, Esther w as occasionally forced to sleep naked in the basement of their Indiana home. I

t was unc omforta

ble and ve

ry cold in the

winter. O ne of Esth

er’s ea rliest memories was of a time when Evangeline tied her to a high chair and threw her down the stairs. She recalled tumbling down two flights of stairs and landing in the basement. Evangeline left her there. No scars resulted

from this event, but Esther recalled being “ba nged up, black and blue” for a w hile.
Next, Esther testified as to the treatment she received fr om Evangeline Combs while the Combs fami ly

lived in Clearwater, Florida. Esther first pointed to the photograph of a scar on he r middle finger . Accor

ding to Esther, this scar was produced when Evang eline placed her hand on the counter and then hammered this finger until it “busted open.” Another time, Esther was whipped witha rope because the baby sitter had taught her how to write her name. On y et another occasion, Evangelinewhipped the bottom of Esther’s feet with an electrical cord because she believed Esther had been kicking thecurtains. Other punishments inflicted upon her while in Florida included denial of food and additional instances of skin removal with the needle-nosed plier s. Regarding the abuse

Esther suffere d while the Combs fami ly

travele d from sta

te to state in the trailer home, Esther testified first that Evangeline burned her leg s because the baby , Sarah Combs, had a diaper

rash. B ecause

it was Esther’s job to change Sarah’s diaper s, Evangeline viewed Sarah’s rash as proof of Esther’s negligence. Wanting to demonstrate to Esther how a diaper

rash felt, Evange

line burn t the insid e of both of her

thighs with a curling iron. The wounds were ve ry painful, and it was difficult for Esther to walk afterward. Evangeline a

lso beat the inside of Esther’s thighs with a shower brush to make boils. First, shewould use water to wet thebrush and the inside of Esther’s thighs. Next she beat the skinuntil it made boils, and then beat the boils until they broke open and started bleeding.
Next, Esther testified about the wounds and abuse Evange line inflicted upon Esther whi l e the family lived in Tennessee . She claimed that one of her armscars resulted from an incident occurring on Jimmy

Combs’ birthday. Evang eline was ang ry because the kitchen was no t clean, so she threw a spice bottle through the window and it broke. Evangeline instructed Esther to clean it up, and Esther

thought she complied, but she had missed one rather large piec e of glass. To show Esther what might have happened if one of the y ounger children had happened

upon it, Evangeline took Esthe r’s arm and cut

it open wit

h the piec e of gla ss. The bleeding w as heavy . To stop it,-12-

Evangelineran Esther’s arm under water. When this did not stop the bleeding, she stuffed paper towe ls into the wound and wrapped bandages a round it. One day, a

fter the injured area began t o heal, Evangeline flew into a rag e for some reason, grabbe d Esther’s arm, and “tore” the wound open ag ai n. Th e b le ed in g w as pr of us e. Es th er re ce iv ed no me di ca l t re at me nt fo r e it he r i nj ur y.
Another Tennessee incident occurred shor tly after Jimmy Combs’ birthday. Esther was caught looking at a watch that Jimmy had received as a present. To teac h her that she must never touch another person’s property , Evangeline burned Esther’s arm in two places with a curling iron. On a diffe rent occ asion, Ev angeli

ne beat E sther “a

ll day long ” with a water hose for falling asleep in church, and then s hook Esthe r by her hair until it began to fall out. A photograph which re vealed
nume rous scars on Esther’s buttocks was presented in court. Esther te stified that one of the scar s was caused w

hen Evan geline

burned her with

the top of

an iron because sh

e allowe d the spag

hetti to burn. A scar on her shoulder resulted from being struck by Evang eline with a claw hammer, and additional scars a

round he r mouth and chin were the result of being whipped in that are a or having objects thrown at her by

Evangeline. Esther claimed that Evangeline gave her

numerous black ey es during their stay

in Tennessee and genera lly whipped her at lea st once per day with a coiled metal cord. When the black eyes were severe, the Combses did not allow her to attend chur ch.

When the State’s evidence regar ding Defendant Evange

line Combs had been concluded, the trial court reemphasized that the evidence must be considered a s to her guilt alone. The court then gavethe jury limitinginstructions, similar to the instructions previously given for Evangeline, which concerned the upcoming proof of “ other crimes” allegedly committed by Joseph Combs.

Esther be gan by

testify ing that , while the

family lived in Florida, Joseph “belted” her after discovering that t he bab ysitter h ad tau gh t her how to write her name. Joseph informed her that “Jesus didn’t lea

rn to rea d or write

until he wa s 12, and th at [she] wa sn ’ t going to either.” On another day, while the fa

mily was living

in the trailer, Joseph laid her on her back and whipped her stomach with a type of “f

lip-flop” sandal because “he hear d something about a pink belly .” He did notstop until E sther could rema in perfectly

still without cry

ing. I n Tennes see, Joseph beat he r with
a water hose for falling asleep dur ing church services. He mad e her take of

f her cl othes fir st, to make sure that “he did not miss any inch of [her] skin.” Esther claimed that, later that afternoon, he also beat her with a

belt but she did not recall the reason for it. Esther next identified a photograph of a hole in the wall of Joseph’s office. She claimed that the hole was created by her hea d, when Joseph repeatedly

banged it into the wall. Another time, Joseph became angr y beca use the grocery store was closing and Esther had not yet completed a list of wha t the family neede d. He kneed her in the stomach and knocked thewind ou t of her. As she bent over, he went to knee her in the stomach a second

time but missed. He caught her in th e e ye i ns te ad . S he fe ll ba ck wa rd . H er eye became black and blu e and swelled shut. She wore a patch for a long time, but did not receive medical treatment. At the conclusion of Esther’s testimony concerning Joseph Combs, the trial court repeated for the jury

the limiting instructions previously given the m.

Est her also testified as to what specific facts gave rise to the individual coun ts in th e presentment

against Joseph and Evangeline Combs. Concerning c ount 2, chargingbothDefend ants-13-

withcommitting aggravated a ssault between June 1, 1996 and September 1, 1996, Esther stated that the incident occurred because Esther ha d not finished her chores. E arlier i n the day, the Combs family was barbecuing outside because it was summertime. Then it began to rain. They brought the grill inside, but Esther had not finished cleaning the dishes or the laundry. A s punishment, Joseph took her into the gy

mnasium and beat he

r with a r ope. Esther was sc

reaming , but Joseph t

oldher he would not stop beating her until she stopped screaming. She did not stop. Conse quently, he wrapped the rope around her neck and dra ped her over his back. She recalled that he r feet lifted off of the floor. Evangeline watched the episode. Eve ntually, Esther passed out. She woke up later on the floor.

Counts 7 through 10 charged Evangeline Combs alone with committing separate offenses of aggr avated c hild abuse . The inc ident gi v i ng rise to count 7 occurred in Febr uary 1994. Esther recalled that the o ther children we re makin g Vale

ntine ca rds. Eva ngeline became angry for some
reason and took Esther to the gy mnasium to “beat” her. She beg an by beating Esther’ s backsid

e with
a baseball bat, but Esther turned her body and the bat hit her e lbow. Esther claimed that it was very painful and her elbow swelled up, but she received no medical attention. I nstead, her arm was placed in a sling for what seemed to Esther like months. Whe n chu rch members asked questions about Esther’s arm, Evangeline

told them that she sprained her elbow when she swung two gallons of milk. Esther testified that she was unable to straighten her a rm afterward.

Count 8 stemmed from an offense which was alleg ed to have occurred in November 1994. Esther recalled that it

took place near Thanksgiving Da y. She was clea

ning out the re

frige rator to create room for the holiday f

are. To prevent Esther from disposing of any ed ible foodstuf

fs, Evangeline wanted to check the spoiled food be fore Esther threw it away

. Quite a bit of food had gone bad. After a

while, Evangeline appeared to find the pa rade of rotten food tiresome. She threw
a wooden shoe at Es th er , h it ti ng he r a bo ve th e e ye. Th e w ou nd bl ed pr of us el y. Evange

line trie d to stop the bleeding because the wound wa s “right on [her] face where people could see [her] at church.” She knew Joseph woul d be upse t by this. Unable to check the bleeding, Evang eline got
a sewing needle and began to stitch the wound closed. Esther w as in great pain and would not stop wiggling around, so Evangeline sat on her while stitching the skin together. Again, Esther received
no medical attention. Upon discovering the injury , Joseph restric ted her f rom attending ch

urch unti l the wound healed. Later, Ev angeli ne remo ved th e stit ches an d Est her wor e a hair style wit h bangs to cover the forehead scar.

Th e incident underlying

count 9 was alleged to have occur red in September 1994. Esthe r testified that Evangelinewas using needle nose pliers to construct a Christmas plaque that day . She calledfor Esther. When Esther arrived, Evangeline g rabbed the skin on Esther’s hip with a pair of needle nose plie rs. She the

n pulled a nd twisted

Esther’ s skin until a

chunk ca me off. Evangeline calledsuch wounds “marks of the beast.” Es therwas unab le to rec all any thing she had done to deserve punishment on that occasion.

The offense

in count 10

allege dly occurred on a day

between September 1995 and November 1995. Esther testified that she had a considerable amount of work to do that da y and she was running-14-

behind schedule. Evangeline asked Esther w hether she had completed

cleaning the kitchen. Esther told her “ye s,” which was untrue. She had planned to finish cleaning the kitchen at a later time, but Evangeline checked bef

ore she had a chance to do so. As punishmentfor lying , Evangeline made Esther drape her body

over the kitchen window ledge and bea ther with a baseball bat. Esther’s body kept slipping from the window, howeve r. Eva nge line rec ruited Jimmy

and Davi d Combs to ho ld Esther in place . The boy s held her by t h e fee t and hand s while Ev angeline beat h er with the bat. Esther claimed that

the beating broke her tailbone, and she c ould barely wa lk. Joseph Combs gave Esther four Tylenol and f

our ibuprofen for the pain, and some v itami n E to speed healing. She received no medical attention.

Count 11 alleged that Joseph Combs committed aggravated per jury on or about October 3, 1997. Esther testified that she was aware D etect ive Debb ie Richmond-McCauley had file d a lawsuit, because she was present when the police officer delivered Joseph the subpoena. Evangeline Combs thought the offic er’s kno ck on the d oor was a UPS delive

ry . Esther d

id not open the door, but she could see t hat the caller was a police officer , so Joseph answered the door instead. Esther heard Joseph say, “She’s not her e right now, but I’ll give it to her.” When th e offic er left, Joseph told Esther that the subpoena required

Esther to show up in court because Detective McCauley wanted her to have a “legal baby sitter” to manage her money and other needs. He said, “I don’t think y ou needthat, do you?” Esther replied, “No,” because she did not under stand what was going on. Joseph told her not to w orry about it, b ecause

she would be in anothe

r county when the court da te arrived and he would report to the court that she had run away

. On the co urt date, Esther was at Sonja Meadows’ house. Later , J oseph “was laughing at how he had ma

de a fool out of Ms. [M cC au le y] and the judge by saying tha

t [Esther] had run away.” F ro m Sonja M eadows’ house, Esther went to So uth C aroli na beca use J oseph thou ght “th ings were getting a little too hot.” Later, she stayed with Rog er and Susan Combs in Georgia.

Count 12 charged Joseph Combs with committing aggra vatedrape in April 1989 (Esther was under thirteen yea

rs of age at this time). Esther testified that Joseph made her perform oral

sex on him on a day near Pet er Comb’sbirthday , April 25th. The

Combs fami ly h ad since

settled in Bristol, Tennessee, but was still living in the trailer at that time. Esther claimed that Joseph called her into the bedroom of the trailer, closed the do or, sat down on the bed and exposed his penis. He then placed Esther’s hand upon it and told her that “he knew [she] wanted it.” He made her put her head down and plac ed his pen

is into her

mouth. She t

estified that when

Joseph was a ngry

with her, he made her swallow his ejaculate. He called it “sug ar water.”

Counts 13 th rough 1 9 charged Joseph Combs with the rape of Esther Combs. Count 13
concerns an incident that occurred on November 16, 1990, Esther’s thirteenth birthday . According to Esther, Jos eph infor

med her t hat he wa

nted so me coffee that day. She made the coffee and brought him a cup. He was sitting in a chair in the foy er at the time. He told her th at he wa nted to give her a birthday prese

nt and closedthe doors to the foyer . Esther was then directed to get down
on her knee s and per

form ora l sex on him. Joseph instructed her “ho w hard a nd how fa st to pump it” until he “did it in her mouth.” She was not allowed to wash her mouth out afterward.-15-

Count 14 charged Joseph Combs with the rape of Esther during the summer of 1995. Esther testified that th e kids were play ing outside on the day

he committed this particular offense. EvangelineCombs was also outside and Joseph was inside, standing by the door watching every

one. Joseph called E sther insi de to per form ora l sex on him. Esther responded that she could not because the Bible said t hat it was wro ng. Joseph told h er that “ it was oka

y w ith God beca

use [she] wa s his adopteddaughter, [not] his biological daughter. And that King D avid had concu bines. ” He then placed h is penis into her mo

uth and ma

de her “ do it until he

went.” T his time, sh

e was all owed to wash her mouth out afterward.

Count 15 alleged

that Joseph Combs committed the crime of rape against Esther on June 16, 1991. The date was Evangeline Combs’ birthday. Evang eline had gone to the park with the other children. Esther remained behind because she had not yet finished cle aning the kitchen when they departed. Joseph had been at a meeting, but he came home before the rest of the family r

eturned from the park. He stood before the kitchen window, where he would be able to observe Evangeline’s return. He had Es ther ge t underne ath the c ounter to perfor m oral sex on him. J oseph pla ced his penis into her mouth until he “went” and told her she was “special.”She was not allowed t o rinse her mouth

out.

Count 16 charged Joseph Combs with raping Esther on November 25, 199 3. It was Thanksgiving Da y an d d in ne r w as ne ar ly r eady. Evangel ine Co mbs wa s in t he kit chen, yelling, because the dishes were not yet cleaned. She kept sending Esther to the front of the building, where Joseph was sitting in the dark waiting for her, because every five minutes she had to be beaten for
one reason o

r anothe r. After a while, h

e appea red to grow tired of whippingher. Sinc e the fa mily
was busy in the kitchen and he was just sitting in the dar

k, he made

Esther pe rform or al sex on him. Again, he placed his penis in her mouth and ejaculated. This time he allowed her to wipe he

r mouth with his boxe

r shorts.
Count 17 alleged that Joseph Combs raped Esther on November 16, 1993. It was Esther’s sixteenth birthday. Esther did not rec all where the rest of the family had gone. Joseph was in the foyer and ca l le d h er to co me in be ca us e h e h ad so me th in g h e w an te d t o g iv e h er fo r h er bi rt hd ay. When she arrived, he closed the door and opened his boxer shorts. (According to Esther, Joseph’s “normal ” attire was boxer shorts.) She performed oralsex on him, and he ejaculated into her mouth, which she was not allowed to wash out.

The incident giving rise to the rape charge in c ount 18 occurred on February 14, 1991. The other Com b s children were in the kitchen making Valentine’ s Day ca rds, and Evangeline Combs was busy doing something in the gy mnasium. Esther was clearing a table when Joseph told her that he wantedsome coffee. When s he brought it to him, he closed the doors and made her per form oral sex, in a fashion similar to the other instances.

Count 19 alleged that JosephCo mbs committed another rape of Esther. The incident occurred on February

4, 1992. Joseph was in his office and had spilled a “Coke” und er hi s desk. He instructed Esther to bring him another drink and also clean up what he had spilled. She-16-

clambered

onto the floor underneath his desk. He grabbed her head and made her perf orm oral sex
on him as he s at in his ch air. Esth er was st ill undern eath the desk whe

n Evang eli ne Combs came int o the room. Evangeline demanded to know what Esther w as doing down there. Joseph “composed” himself and Esther resumed cleaning the floor. Joseph was in his boxers, as usual, and she was not allowed to clean her mouth afterwar d.

With regar

d to her lif

e in gen eral, Es ther test

if i ed that she had never bee n allowed to visit other children or go any

where or do any

thing without

Evange line, Joseph, or one or more of her sibl ings present

. Moreover, no visitors were permitted inside the Combs residence at EBC. Joseph told her that this was because their home was “a me ss.” Esther recalled that various church members had come by at diff

erent times to deliver food, but they w ere either met at the door and not allowed in, or the Combs family would not answer the door at all and the visitor would eventually leave the food on the doorstep. On the occasions that Esther was not allowed to attend church services, she
was orde re d t o s ta y in a small room near the men’s bathroom. No one stood guard ove r her, but Evange lin e pl aced powder in front of the door. Footprints in the powder would reveal any disobedience. This area by the bathroom was also where Esther slept the majority of the time. She was not permittedto sleep w ith the othe r childre n becau se she re

portedly “snored really loud” and “smelled bad.”

Esther did not have a driver’s license, a Social Security number, or any

other standard form of identific ation. I

n addition , she wasnot able t o read or write well. The other children pa rticipated in home-schooling sessions, but Esther was not allowed to join the lessons until her chores were completed, and this did not happen often. At home, Esther was responsible for thelaundry and the ironi ng, making t

he beds, cleaning the dishes and the house, cooking the meals, making the grocery list, and whateve

r elseneeded to be done. (Because she could not read or write, she prepared the grocery list by copy

ing the letters from near-empty packages of food. ) Esther claimed that her siblings had no responsibilities in the way of chores, and Esther did not go to bed until her chores
were completed, normally between 3:30 and 5:00 a.m. The other m embers of the famil y us ually retired between midnight and 1:00 a.m., and they arose anywhere between 9:00 and 11:00 a.m. At whatever time each member of the Combs family got ou t of bed, E st her was responsible for prepar ing that person’ s breakf

ast. I f allseven of them got up at different times, she cooked seven separate breakfasts.

Esther testified that she had been informed several times by both Defendants over the y ears that her “pur pose in lif e” was to act as a “servant” to the Combs family . On those occasions she did notperform this function prop er ly, she was punished. The “normal position” she assumed when either Defendant beat or whipped her required her to take off all of her clothes, place her hands on the back of a chair, and bend over.

Esther testified that on February 17, 1997, the day prior to her hospitalization at the Medical Center, she did

not make the coffee “right.” When this occ urred, the coffee was thrown in her face and she was beaten. This particular day was no different. Esther decided she “c oul d n’t take it anymore”and “wa

nte d to die.” In the early hours of February

18, 1997, she filled a 24-ounce-17-

styrofoam cup with antifreeze, drank it, brushed her teeth, and then w ent to bed. When she awoke, she was in a bed at the Medical Center. Wh

en the pr osecutor asked Es ther why

she failed to report the ma ny i ncidents of a buse to any medica l personnel or the police officers she had enc ountered during her stay a

tthe hospital, Esther replied that she was “scared.” She ha d previously run

away twice, but she was returned to theCombs both times and severely punished afterward. (Esther was unable to re ca ll th e d at es th at sh e r an aw ay. ) C on se qu en tl y, Esther believed the same thing would happen again. Esther testified that there was no one

outside of

the Combs’ household to whom she could turn for help. She reca

lled someone mentioning “protective custody ” while she was in the hospital, but she did

not comprehend what that meant. Approximately one yea r later, while living in Georg ia

with her aunt and uncle, Susan and Roger Combs, Esther decided to telephone Detective McCauley and r

eport what the Defendants had done to her.

Esther’s first run away

experience involv ed Offic er Vic Jor dan, with the Bris tol, Virginia Police Department. Officer Jordan testified that on November 5, 199 2, he was su mmoned to an “Abco” store be cause a

female h ad repor

tedly locked herself in the bathroom and ref used to co me out. Officer Jordan arrived at the sce ne and beat on the door. Someone inside the bathroom unlockedit. When Jordan entered, he observed a young female standing in the corner, “kind of “cowed down” and “real timid.” The female w as later ide ntified as Esther Combs. Jordan transportedher to the police department, where she was subseque ntly picked up by

Joseph Combs. During cross-examination, Officer Jordan re ad his off

icial re port of the incide

nt which st

ated: “- -Vic Jordan, talked with Esther who said that she had a misunderstanding with her parents, and that’s why she left home.” Officer Jordan confirmed that the r eport wa s an accurate

statement of what Esther had said t o him.
Esther’s second runaway

incident was reported to the police department by Joseph Combs
on Septembe

r 29, 1996 . It w as a

Sunday. When Detective Jerry Smeltzer arrived at the Ema nuel Baptist Church to investigate, Joseph told him thatEsther had disappeared from the church nurse ry during the evening church service. I n the nursery, Smeltzer obser ved a large rocking chair la ying
on its side, items from a lady’s handba g strewn about, and two large “gobs”of human hair, one on
a table and the other

on the floor near the door. Smeltzer testified that Esther was located in Carter County at 4:30 a.m. the next morning and r etur ned h ome. Smelt

zer te leph oned the c hurc h the

next da y. A male voice answered. Smeltzer asked to speak with Esther but the man said that this was not possibl e. He ma

de two mor

e attempt s with simila

r fruitle ss results

. The State presented numero us witnesses to testify reg arding their contact with the Combs family and what they ha

d obser ved concerning the family ’s treatment of Esther. In this vein, Gayland M. Oaks, II , testified that

he had known the Combs family for twelve yea

rs. He met Joseph Combs in 1981 at Hyles-Ande rson College, where Joseph was “a Bible tea cher.” Gay

land was one of his students at the time. Gayland g raduated in 1985 and moved to Ohio. Some time l ater, Gayland called Joseph (who was living in Florid a) to invit e him to teach a semina r on famil y lif e in Ohio. Inste ad, Joseph a sked Gay land to se rve as hi s associa

te pastor in Florida. Gayland a

ccepted. In Flori da, Gaylan d was r espon sibl e for bu ildi ng a music ministryand increasing church attenda nce, among other things. His wi fe, Malinda, baby sat the Com bs childr en one da y pe r week f rom July-18-

thro u gh October 1987, when Malinda became preg nant and Gayland assumed her baby sitting responsi bilities. Jo se ph in fo rm ed Ga yla nd th at on ly a ve ry few people were permitted to interact with the Combs children. Thus, he should consider it a “great honor” to be selected.
Gayland watched over the C ombs children each Thu rsday beginn ing in No vember 1 987, until May 1988. He arrived at approximately 8:00 a.m. an d stayed until somewhere between 8:00 and 10:00 p.m. Joseph told Gayland that he was only responsible for supervising the children, nothing more, because

“Esther would tak

e care of the fo od, the ba

bies, the diapers , every

th ing.” G ayland testified that Esther was nine y ears old at the time and took care of thebabies “exceptionally we ll.” She brough

t them thei

r bottles, changed their diapers, and pre pared food

for all of the other children; she made “whatever they

asked for, whenever they

asked for it.” Rarely did the childre n eat together
or at one time, and they se

ldom went outdoors during the day

. Joseph said that he did not want the authoriti es to lea

rn that the

childre n were n ot enrolled in school

. Gayland also testified that Evangeline and Joseph Combs treated Esther differently from the other children. Joseph had informed Gayland that Esther Combs’ “purpose in life was to be a servant

. . . that was what God had created her to be.” Consequently, the Combs were training her to do t

hat. When Joseph and Evangeline returned home on the nights that Gay land babysat, they

asked him for
a report of the childre n s’ behavior. On those occasions that Gay land reported a child other than Esther had committed some indiscretion, the Combs would instead punish Esther or send her to the office. According to Josep h, the off ic e was where the spankings took place . Joseph informed Gayland that “it w as nece ssary

to spank a

child thro

ugh the ir rebellion . . . [which] meant to spank them until they stopped resisting y ou, stopped struggling aga inst you, stopped cry

ing.”
Regard ing Esther’s appearance, Gay land testified that she was “very frail, weak, [an d ] appeared sickly.” He notice d a scar on her upper lip and another on her hand. She alway s wore long dresses which covered most of her body , her arms, and all of her legs. The dresses were often too big for her. She wore her hair long , with bangs which covered most of her forehead. He r teeth were “very bad, the worst [he] had ever seen, protruding out of her mouth and in deplorable condition.” Joseph did notspecifically e xplain to Gayland howEsther ha d recei ved any

of her in juries. H e said only that Esthe

r was “c lumsy ” and “f

ell a lot.” Ga

yla nd testifi ed that he

never pe rsonally saw her act clu ms il y or f all dow n, h owe ver . In addition, Esther was “the most cooperative and amiable and pleasant of the children . . . . [I]t was not necessary to ask her to do any thing. She did it without asking.” She was not disobedient to Gayland and, a t church, she appeared

to obey her pa

rents also. Gayland never saw Esther play

ing rough with the other children or injure herself, and he

never saw her ap ar t f ro m t he ot he r m em be rs of he r f am il y. In Ma y 19 88 , G ayl and and his wif e retur ned to Oh io , a ft er wh ic h t he y ha d n o f ur th er co nt ac t w it h t he Co mb s f am il y.
Malinda Oaks, wif e of Gay land Oak s, also testified that she had performed baby sitting duties for the Combs family. During one suc h occasi on, Malind a discove red that Esther w as unable

to write her name. She was nine year s old at the time. Malinda taught Esther to write her name and also gave her instruction

on the alphabet. When Evangeline and Joseph returned home t hat ev ening, Esther showed them what she h ad written. She was “excited” about her accomplishment, but the-19-

Combs appeared displeased and sent her to “the of fice.” When ask ed to describe Esther’s appearance, Malinda replied that Esther had scars around her mouth and a broken tooth. Malinda also reported that she had never noticed Esther to be clumsy, fall frequently, or injure her self.
Kelly Rose Wood te st ified tha t she also baby sat for th

e Combs fa

mily while the y liv ed in Florida. It was during the f all of 1986, and Sarah Combs had just been born. O ne evening, she observed that Esther had kicked the covers off while sleeping

. Wood then noticed that the back of Esther’s legs were “very , very sca rred.” They

had “stripes all over the back of them; some old, s ome new, some very fr

esh, just scar upon scar

upon scar . . . .” Wood observed that the back of Cindy Combs’ legs were also visible, and they did not have a single mark on them. Another time, Wood noted a gouge wound on

Esther’s chest. I

t was a “f resh wou nd.” Wood a

lso testif ied that E sther did notappear to be clumsy

and she did not behave in a rebellious manner. I nstead, Esther was “very quiet” and “meek.” She was a small, thin child, and the clothing she wore was very loose, ba ggy, and long, so

that y ou did not see much of her. Wood c laimed tha

t Mr . and Mrs. Comb s treated Esther very

differently f

rom the other children, but she did not elaborate further.
Andy Steven Arnold testified that he knew the Combs family. He re gularly attended Sunday and Wednesda

y se rvices a t EBC fr om the ea

rly months of 1 992 until the fall of 1993. Arn old testified that Esthe

r alway s wore long dress es with lon g sleev es and tha t she did no t interact with other adults or the other children at the church. I nstead, Esther w as “ver

y w ithdrawn ” and “k

ept to herself.” When Arnold attempted to talk to her, she would not make eye contact with him, and she only spoke when asked a direct question. Evange line was alway s nearby. A rnold claimed that “[Esther] was just never really out of Mrs. Combs’ sight.” On two separate o ccasion s, Arnold observe d that Esther was in jured. Th

e first tim e, her a rm was wr

apped in gauze and supported

by
a sling. The secondoccasion Esther showed up for church with black e yes and bruises on he

r face. Joseph Combs said that Esther “was clumsy, fe ll down, things of that nature.” Evangeline Combs gavesimilar explanations. Esther missed more church services than the other children. The Combs family usually said that she w as “sick .” Arnol d also testified that he delivered food to the Combs family severa l times, but

he was ne

ver allo wed into

their home. Instead, he wa s instructed to set the food on a concre te slab a t the door of the fe llowship ha

ll, knock, and then l eave the premises

. Betty Atkinson testified that she played piano dur ing the c hurch se rvices a t EBC, beginning in July 1994. Atkins on also te st ified that Esther wore long-sleeved clothing and rarely

interacted withanyone outside of the Combs family. Atkinson confirmed that Evangeline Combs was usua lly by Esther’s side and that Esther appeared subdued, obe dient, and avoided eye c ontact when spoken to. As far

as Atkinson could tell, Esther was not clumsy and she did not fall a lot. Ev angeli n e informedAtkinson thatEsther love d to serve and this was her life’s purpose, but Esther was “rebellious.” Atkinson never saw anyindication of this, however. To her, Esther appeare d “very sweet . . . [and] obedient to her parents.”

David Lama r Wright a

ttended E BC from 1 982 until

January 1994. Wright testified that he became acquainted with the Combs family, including Esther, during this time. He said that Joseph Combs had characterized Esther as a “rebe llious child.”-20-

E sther Owens, a member of EBC from 1990 to 1993, testified that Esther did n ot interac t withother members of

the church and that she did not recall ever see ing Esther without Evangeline close by. Accor

d ing to Owe ns, Esther

regula rly missed ch

urch ser vices. O n some of t

hose occasions, Joseph Combs gave the congreg ation reasons for her absence, e.g ., she had an accident withher bicyc le, lifted a j ug of mil k, et cet era. Est her looked “[r]eall

y, r eally skinny and rea

l bad” when Owens knew her , and she alway s wore long dress es with lon g sleev es. Joseph asked Owens to bring food

to the family on a fe

w occasions, and he alway s instructed her to leave it on the porch. He said that someone would come out and pick it up later.

Similartestimon y was given by numerous other me mbers of EBS . Leona Dickens, Mary Johnson, and Donna

Sue Hensl ey

attende d EBS for

forty -four y

ears, f orty -five y

ears, a nd two y ears, respectively . Dickens, Johnson and Hensley testified that they

observed the Combs family during churchservice s, and all

three no ted obviou s injuriesto variou s parts of Esther’s body, including

her arm, eyes, and f

orehead. The three witnesses were also given various explanations by Joseph and/or Evangeline as to how the injuries were sustained, e.g., Esther was c lumsy and fell often. None of these witnesses had ever observed Esther fall or be have clumsily, howeve

r. The witnesses corroborated

the testimony of previous witnesses co ncerning Esther’s st yl e of dress (long length/long sleeves ) and demeanor. Specifically , they claimed that Esther was different

from the other Combs children in th at sh e a pp ea re d f ri gh te ne d, qu ie t, an d g en er al ly d id no t i nt er ac t w it h o th er s o r m ak e e ye contact during conversation. Johnson testified that instead of play ing with other children, Esther worked. The other Combs children alway s played. Johnson never saw them do any work. Hensley similarly testified that

the Combs children, save Esther, were allowed to do “pretty much whatever they wanted. ” Esther

was responsible for taking care of y oung Sarah Combs and, whenever the Combs family attended a

social gathering, Esther served the other members of thefamily their mea ls. On the matter of delivering food to the Combs resi dence, Hensley testifie d that she

perfor med this service on mo re th an on e o cc as io n, bu t w as ne ve r o nc e a ll ow ed in to th e C om bs ho me . O rd in ar il y, she would knock

on the door and no one answered. After a few minutes, she put the food down and left. The last time she delivered food, she knocked, left the food, and then dr ove around

the bu ildi ng. By the time she r

eturned to the door, the food had disappeared.

Dr. Mona Gretel Harlan, a forensic pa thologist, testified that she examined Esther on April 4, 1999, at the prosecutor’s request. Her examination revealed the following: The scars on the inside of Esther’s thighs were consistent with burn wou nds. The s cars on Esther’s forehead wer e not significant

in number, but they

were lay ered, some as many as three lay ers thick , indicat

ing that some of the newer injuries were inflicted upon existing scars. The broadscar on Esthe r’s forearm was consistent with a deep wound w hi ch, for some reason, did not heal properly due to reinjury or infection. When aske d whethe r the ca use of the scars could have been acc idental trauma, Dr. Harlan testified affirma

tively with reg ard to Esther’s forehead scars, especially if the injuries occurred when she was a y

oung ch ild. She sa

id that ch ildren ha ve larg e, heavy he ads. Thus, they are prone to tip
over w hen moving

in a forward direction. By contrast, the wounds on Esther’s back, thighs, and buttocks were not consistent with either self-inflicted or acc id en ta ll y- caused injuries. In her summation, Dr. Harlan reported that the majority of Esther’s scars were the result of non-a ccidental and non-self-inflicted trauma.-21-

Dr. Harlan also testified that she was unable to date the causative injuries. However, none of the observed scars were red at the time of the exam. In other words, the scars had all healed as much as was po ssible

and none of them appeared to be the result of a n injury sustained within the past year. A careful and th orough count of t

he scar s on Esther ’s body revealed 410 disc

rete scars. Dr. Harlan s tated tha

t during her 25 y ears of practic e, she ha

d never b efore s een somany individual scars on one person’s body

.
Dr. Henry Nic

hols testified that he evaluated Esther’s dental condition on May 11, 1998, and, at that time, her

front teeth were “grossly displaced” or “bucktooth exagger ated.” In Dr. Nichols’ opinion, the only

reasona ble caus e of the displacement would be some sort of “traumatic episode,” i.e., a blow, fall, concussion, or other sort of abrupt phy sical force con tact wi th the tissue. The pros ecutor

as ke d D r. Ni ch ol s i f h e c ou ld st at e, wi th in a r ea so na bl e d eg re e o f m ed ic al ce rt ai nt y, whether the condi tion of Est

her’s f ront tee th was co nsistent w ith comple te displace

ment, followed by reinser tion of the

teeth into

the gums . Dr. Nichols respond ed affi rmativel y, s tating th at tooth displacement

to the deg

ree pre sent i n Esther’s mou th “just do esn’t oc cur in na ture.” Dr. Nicho ls stated that in his t

wenty ye ars of pr

actice , he had never obs erved a n arran gement

of teeth similar to Esther’ s. Moreover, the shape of Esther’s dental arch was not the ty pical “U” shape, but “ter

ribly distorted.” The blunted appearan ce of the roots of Esther’s upper front teeth and the condition of her lower jaw revealed further e vidence of trauma: the top half o f one of her lower incisors was missing and a

cyst had forme d on the root, without any sign of decay (the typical ca

use). With the permission and assis tance of Esther’ s natura

l parent s, Bill and Rachel Whetstone (formerly Rachel Garcia), Dr. Nichols treated Esther’s conditions and replaced her two upper front teeth with a permanent bridge.

Dr. Glenda Jo Fox Ramsey, a radiologist, testified that she evaluated x-rays of Esther’sleft elbow and, in her opini on, the elbow appeared “abnormal.” Specifically, the distal humerus, a portion of the long boneat the elbow, had not grown properly . The x-ray showed a healed fracture, caused by some sort o f “trauma” (defined by Dr. Ramse

y a s “an inju

ry , a blow to

the bone that’s not
a normal degree of

stress”). She further testified that the appearance of the bone indica ted an injury “consistent

with being struck by

an object such as a [baseball] bat” or the result of a

fall. The injury
was not consis tent with th e action of swinging a g allon milk jug. Dr. R amse

y a lso te stifi ed th at xra ys of Esther’s sacrum (“tailbone”) reve aled an abnormal “acute” curvature of the bone, as if it were “collapsed

inward.” Finally, she testified that Esther ’s “bone age” was “de layed” by at least three ye ars, i.e., the d evelopm ent of her bones was significantly slower than her chronological ag e, reporting that such “[a] delay in bone age is a common manifestation of malnutrition.”

At t he conc lusion of th

e above testimony , the State

rested it s case. T

hereaf ter, Samu e l Johnson, an acqu aintanc e of Def endant Jose

ph Combs, te stified th at he met Jos eph at the Hy lesAnderson Bible College in 1983. Johnson saw him again in Florida in 1986. At that time, Joseph
was starting the Tampa Bay Baptist Church. Johnson became a member and saw the Combs children regula rly (three to five times per week) for the f ollowing two -and -one-half y ears. In addition, Johnson had stayed a s a guest in the Combs’ home for two weeks while he was see king emp loyment. Johnson testified that their home was “very nor mal,” clean, and organized.-22-

Aaron P. Welch, pastor of the Charles Towne Baptist Temple in South Carolina, testified that he met Joseph Combs in

1979. Welch was a s tuden t of J oseph ’s at H yles-And erson Bible Coll ege and gradu ated in

1982. In 1986, he saw Defe ndant again. Joseph was preparing to move to Flor ida at the time. In 1987, Welch arrang ed to have Joseph come to his ch urch in So uth Carolina and preach for him. Thereafter, Welch scheduled Joseph to preach on a regular basis, some times as much as twice a

ye ar. When t

his happe ned, Joseph

stayed for f

ive to six day s and brou ght his f

amily withhim. Welch found the C ombs childre n, including Esthe

r, to be “ quiet, we

ll-manne red kids” who “alway s dressed very neat.” He described Esther as “r eal sweet” and “quiet.”
Joseph Henry Espo sito, a pastor at Pacific Baptist Church in Long Beach, California, testified that Joseph Combs was one of his professors at Hyles- Anderson Bible College. I n 1986, Esposito left the co llege and moved with his wife to Clearwater, Florida, where he worked for one y

ear as an assistantpastor to Joseph at the Tampa Bay B aptist Church. When he and his wife first arrived, they
were invited to live in the Combs’ home for two weeks until they fou nd a place of their own. Espositosaw the Combs children often and his wife babysat occ asionally. Esposito claimed that the Comb s’ home wa s “beaut iful” an d the kids w ere all “normal, h appy childre n.” During cro ssexamination, E sposito te stified th at he had observe d no scar s or mark s on Esther ’s body while in Florida. He did recall a possible chip in one of her front teeth, howe ver. When asked whether Esther
was ever rebellious, clumsy , or troublesome, Esposito repl ied negatively . Esposito’s wife, Mary Jane, also gave te stimony

which es sentially

echoed her husba

nd’s state ments.

Thomas Edward Boy

le testified that he attended Hyle s-Anderson Bible College from 1981 to 1984. Joseph Combs was one of his professors. In the fall of 1986, Boyle a

nd his family moved to Clearwater, Florida, and joined the churc h that Defendant was pastori ng. Dur ing the next two ye ars, Boy

le encou ntered Jos eph and h

is family during c hurch se rvices o n Sunday s and Wedne sday s. Boy le and his family also visited the Combs several times at their home, which he described as “clean.” During cross-examination, Boy le said that he noticed Esther’s front teeth were c rook ed , and he did not observe any evidence of injuries or clumsy behavior.

Trent Pollack testified that he met Josep h Combs wh ile attending Hy les-Ande rson Bib le College. In 1986 or 1987, Pollack and a few other people moved to Florida to start a churc h

. Pollack was to be

the music d

irector , and he li ved with th e Comb s family for a

pproximately one month upon his arrival. The Combs’ home served as a place for meetings and the headquarter s for the new church. Pollack testified that every one pitched in to keep the house clean. While in th e Combs home, Pollack did not observe any of the children being singled out for pre feren ti al treatme nt. He testified that

Esther pa rticipat ed in the home schooling process , along

with the r

est of the Combs children. During cross-examination, Pollack said that he observed scars on Esther’s hands and that he had asked Joseph Combs about them. Joseph informed him that Esther had placed her hands into scalding water and that she appe ared to have a high tolerance for pain.
Jeffrey Arnold Coester, a pastor and part-time clothing salesman in Illinois, testified that he met the Combs family when he visited Br istol, Tennessee, in 1995. Coester testified that the children, including Esther, were pla yin g sports(basket

ball and base

ball) at t he time. According to-23-

Coester, Esther was dressed “cool and comfortable,” the same as the other children. He

also reported that the other children did not behave differently toward her, and Esther was not asked to run errands for them. Coes ter came

to Bristo l becaus e h e w as co ns id er in g j oi ni ng Jo se ph Co mb s’ mi ni st ry. Consequent ly, he wan ted to lea rn someth

ing about the Combsfamily and spoke

with each child individua lly for appr oximately ten minutes. According to Coester, Esther was “very comfortable” withhim, “a lit

tle bit shy, but never withdra

wn.” During cross-examination, Coester testified that he had observed scars only on Esther’s face and that he was conc erned abo ut the condition of Esther’s teeth. Coe ster said that he di d not move to Bristol or take the job at EBC, but he gave no reason for this decision.
Ruby Rhotenberry, a

regularly -attending member of EBC from 1967 to 1998, testified that she saw the Combs children at church services approximately three times a week. Rhotenbe rry said that the family, including E sthe r, ap peared “very friendly, happy , always laug hing, talking, friendly .” Rhotenberry

claimed t hat she ha d “very few” pr ivate co nversat

ions with Es ther, but , when she did, Esther never reported having been mistreated or sexually abused by

either Defendant. During the trial, Rhotenberry identifie d eighteen photographs that she per sonally took of the Combs family on various occasions. Most of the picture s showed f

amily gather ings, with the majo

rity of the fa mily present

. Our review of thi s evidenc e revea ls the follo wing: Esther was smiling in all of the photogr aphs, and at least ten of the pictures show Esther wearing clothes with short sleeves. Her lef t elbow and arm appears abnormal and thin. Scarring is apparent on at leas t one arm in two photogr aphs, and her f

ront tee th are g rossly mala ligned. During cross-examination, Rhotenberry testified that Esther was a thin, frail, well-behaved girl, who was never rebellious or clumsy in her presence.
Pauline Melvin tes tified tha t she was a mem ber of EBC from 1981 until it closed in 1998. Melvin met the Combs family when they came to the church in 1989, and she usually sat with the Combs childre

n during church s ervice s. Me lvin reported that all of the children were “nice” a nd “h ap py” and gave her hugs whe n they met. During

cross-examination, Melvin testified that Esther
was thin, well-behaved, and obedient. In addition, E sther did not fall down frequently or appear cl um sy. Melvin also admitted that she was “not really close” to Esther

and that she never saw much of Esther ’s skin expo sed, sinc e she usua lly w ore long

dresses

. Elizabeth Huff and her h usband, D ickie L

ee Huff , started attendin g EBC in

1996. At tr

ial, Elizabeth testified that

she observed

the Combs children, including Esther, during church ser vices and that they were

“all friendly”

and “gave us a hug on Sunday .” In 1997, the Hu ffs attended a dinner function with the Combs family. Esther appea red to be “just fine,” an

obedient child, and not rebellio us. Elizabeth acknowledged that she saw Esther only on Sunday s. Dickie Lee Huff testified that the Combs children, including Esther, appeared to be “very happy.” Dur

ing cross-examination, Dickie Lee admitted

that he a lso had ve

ry little con tact with th e C om bs fa mi ly, ex ce pt on Su nd ay. Dickie Lee also testified that Esther was thin and wore bagg y clothing, but he c laimed that she looked no different from the other Combs children. He never observed Esther

falling downor being cl um sy, and he had not observed any scars on her face or

bo dy. Dickie Lee admitted that he pa id the bond for Joseph Combs in this case.-24-

HildaJane Combs, Jos eph Combs’ mother, te stified th at prior t o 1989, she only saw her

son an d his family once or

twice a ye ar. After Joseph became the pastor at EBC, she sa w the Combs family more frequently , at least three times a week (at church se rvices) an d during vi sits. Mrs. Combs testified that all the children seemed “happy ,” and Esther “was alway s smiling.” Mrs. Combs said that t he childr en “go t along f

ine” and played toge

ther, but Esther w as a “rough little girl” and liked to wrestl e with

the boys. Mrs. Combs further claimed t hat Esthe r had a te mper and , “if she

felt something wasn’t right, she’d tell y ou.” Consequently, Mrs. Combs professed c onfusion as to why Esther would not tell her i f someth ing was wrong. Mrs. Combs was unaware that anything w as amiss until Esther left town. Later, Esther told he r that she left bec ause she

was afr aid of De bbie Richmond [McCauley] and that she would be placed in a n “insane asylum.”
Mrs. Combs testified that Father’s Day 1991 (the day Joseph alleg edly committed the rape in count 15) was special

because it fell on Evang eline’s b irthday . Mrs. Combssaid that t he family gathered at Mrs. Combs’ house for fried chicken after church that

day and stay ed until the

time came to leave for the evening church service at 6:00 p.m. Mrs. Combs also testified that on Thanksgiving Day 1993 (the day the

rape in count 16 was allegedly committed), the Combs family spent the day at her house and stay ed until 11:00 p.m. During cross-examination, Mrs. Combs claimed to have
no knowledge of any

scars on Esther ’s body . When asked whethe r Esther “helped her fam ily out,” Mrs. Co mb s r ep li ed th at sh e “ pl aye d too much” t o be helpf ul. Mrs. Com

bs descr ibed Esthe

r as a smil ing, cheerful, obedient child who was alway s running from place to place, talking to people and ke ep in g b us y.
The other five Combs childre n, James, Da

vid, Cindy , Peter, a

nd Sarah Combs, also

testified. James Jack Combs, the oldest, was the only child lega lly ado p te d b y th e C om bs . ( Da vi d, Ci nd y, Peter and Sarah were the Combs’ natural children). A t the time of

trial, James was twenty-two years old. James testified that during the time the Combs fami ly li ved in the fellowsh ip hall of EBC, an average day for the

household began at approximately 6:00 a.m. on weekday s. On the w eekend s, they started t heir day a little la te r. James claimed that he did not eat breakfast every morning but when he did, he fixed it himself or Peter helped him. Esther never prepared his brea kfast. Further,
as each Combs child finished the morning meal, that child then carried his or her own dishes to the kitchen, where Peter, Cindy , Sarah and Esther would rinse them and place them in the dishwasher. After the children had finished breakfa st and dressed, their studies began. Evangeline and Joseph Combs typ ically

instructed the chil dren for four to f ive hours . All t

he children, including Esther, part icipa ted in the instruction. According to James, Esther was able to read and w rite. He had previ ously

o bserved her reading to Peter, wr iting in the kitchen, and performing mathematical calcula tions.

At lunchtime , each o f the Combschildre n usually made his or her ownlunch. Each child was also responsible for

performing certain choresaround th e home. Jam

es care d for the

dogs an d cats. Esther was responsible for making her own bed a nd picking up her clothes. She also helped prepare dinne r and clea r the tab le after

ward. Th e job of ma

king a g rocery list was a ssigned

to no one in particular. When someone in the family believe d something was needed, the personwrote the name of the item on a piece of paper attached to the r efrigerator. James claimed that Esther did not

have-25-

more chores t

han the r est of the family , and she

did not sta

y up until 3:00 a.m. to complete the chores she did have. As far a s James kne w, no memb er of the family ever tr eated Esthe r as a servant or believed that she had been born to such a station.

James testified that after the schoolwork and c hores were completed, the children wer e normally allowed to watch television and movies or play video g ames. The children were also given
accessto computers for using the I nternet, playing

games, and doing homework. Esther participated in all of these activities. The family had a telephone, and

Esther used that too. The Combs children recreated together outdoors. They often r ode bikes or played basketball, baseball, or Frisbee in the churchparking lot or DeFriece Park, which was loca ted approximately one block away. Esthe

r had her own bike. The childre n also went shopping at the mall, out to eat, and to the movies together. Sometimes their pa

rents or another adult would accompany

them on these outings, and sometimes they went without adult supervision.

James testifie d that t

he Combs family ate their eve ning meal together and that various members of the family took turns prepa ring this meal. E sther wa s n ot required to complete her chores or serve everyone

at the table before she

ate, and she was given the same food a s the rest of the family . At the co nclusion o f th e even ing meal, each member of the fa mily brought his or her
own dishes to the kitchen where Peter, Sarah, Cindy , and Esther rinsed them and placed them in the dishwasher. Evange

li ne Combs did the family’s laundry and James assisted her. Esther’s chores didnotinvolve the laundry. When bedtime a

rrived, the child

ren all sl ept toge

ther in the fellowsh ip hall, Esther included. James never saw Esther sleeping naked or in a roomnear the showers. That room was used to store musical equipment: speakers, amplifiers, key board, et cetera.
According to James, punishment of the Combs children usually took the form of some type of restriction, either

of their liberty (“ grounding”) or one of their privileges (watching television, et cetera). Esther’s situation was no dif ferent

. She was not beaten, whipped, or starved. James did see Esther suffer injuries, however. On one occa sion, he saw Esther get hit in the face witha plastic bat because she stood o n the wro ng side o f the pla te during a baseba ll game . This res ulted in

a black eye and her face was red for a while. Another time, he saw her slip on a base and scrape her knees
on the aspha

lt parking lot. Yet anoth

er injury occurr ed while t he childr en were assisting their pa rents with brin ging in

the gro ceries . Esther h ad been warned not to car

ry more tha n one ga llon of milk at a time, but she did not listen. She was carry ing two g allons of

milk, and th

e door sta rted to c lose
on her. In an eff

ort to catch it, she swung the gallons and twisted her a rm. Evangeline Combs put ice on the arm and placed it in a sling. James testified that the rope burn on Esthe r’s neck was caused by Esther her self. Esther had placed a rope around her neck to pull a wagon with her f riend in it up and down a steep hill. Her neck became red a nd Evangeline told her to stop. Shedid not. Ev en tu al ly, she cut her neck. James also claimed that he never saw Esther naked, and he ne ver heard Esther or anyone e

lse claim that she had been injured, beaten, or molested by e ither pa rent. Joseph Combs’ attorney

asked James whether he

had witnessed the specific incidents which gave rise to the ch ar ge s a ga in st th e D ef

en da nt s. In e ac h c as e, Ja me s r ep li ed ne ga ti ve ly.-26-

With regard t o Esther’ s attire, James claimed that n o one instr ucted he r how to dr

ess. Becau se Esther had a smaller frame than Cindy Combs, she wore

Cindy ’s hand- me-down

dresses

. During church services, Esther would either sit with the family or work in t he nursery

with other female church m

embers. The nurs ery

had a doo

r to the outside, whereby

one could leave without passing through

th e sanctuary

. James claimed that he was hom e but not a

wake when the fa

mily discovered

Esther ill in the bathroomin February 1997. He recalled that

she had se

emed “no rmal” the prior da

y. Ja mes and the rest of

the famil y vi sited Esther in the

hospital a

t every oppor

tun it y. She was “really , really happy ” to see Evangeline and

Joseph, and she also appeared “happ y” to go home afterward.
During cross-examination, James testified that he received his driver’s license on the 26th
or 27th of September 1 997. He a lso claime d that, pr

ior to rec eiving h

is driver ’s licens e, he did

not drive any vehicle

on any public road with one e xception: the day he drove a car which he was considering purchas ing. Onc e licens ed, James d rove the other Comb s child

ren, in cluding Esther, to the mall a

nd other p laces. He testified that this happened “on many occasions” before

Esther left town on October 3, 1997.
Joseph David Combs, Jr., commonly known as “David”Combs, wastwenty -one y ears old at the time of trial andthe third oldest child in the Combs family (Esther being the second oldest). David’s testimony at trial essentially paralleled that of James in all material aspects: David claimed that Esther slept in the fellowship hall, along with the rest of the children, and that she did not slee p naked. David also testified that after the Combs children arose at approximately 6:00 a.m., th ey fixed their own breakf

asts and “the gir

ls” (Esther, Cindy, and Sara h) cleaned up. The children were home-schooled, every da y, from approximately

7:30 a. m. until after n oon and Es ther re gularl y participated. At lunchtime, their mother, Evangeline, fixed sandwic hes. Esthe

r and Cind

y us ually assisted her. David sta

ted that th e evening meal w as a “special” time, whic h Joseph like d the fam

ily to spend together. This meal was usually prepared by

Evangeline alone, and the gir ls cleaned up.

With regard to chores, David testified that e ach child was assigned indivi dual task s to perfor m. David was responsible for taking out the trash and vacuuming. Esther made her own bed and helpedwith the cooking. She did not have mor e chore s to do than

the other childre n, and Da vid
never heard a nyo ne say that Esthe

r’s “pur pose” in l i fe wa s to be a servant. During the children’s leisure time, Esthe

r enjoy ed play in g vid eo games and watching tele vision. Most frequently, the children played baske

tball, ba seball, a

nd rode b ikes. Esther

joined them frequently, but she pla yed “rough.” On Friday

and Satur day nights, t he childr en freq uently went tothe mall. E sther we nt with them“every

time.” David said that they we re un accompanied by their pare nts on these trips, and James drove.

Accor ding to David, punishment usually involved “g rounding.” Occasionally , David w a s spankedinstead or required to write “stuff” on the chalkboard. David claimed that Esther was not punished more severely

than the other children, and she was no t whi pped. David recalled four injuries suffered by

Esther while they lived

at EBC. The first was a burn that occurred in 1994. The children had been discussing a story they hear d on the news about

a child who had seriously bur ned-27-

his hand on a stove. Esther told them that a stove would not burn if the ha nd was re moved quic

kly enough. As a demonstration, she placed her hand on the stove and burned it. The second in jury resultedfrom a mishap with her bicy cle in 1996. She stepped on the brakes too hard, slid off of the seat, and landed on the center bar. (She was r iding a boy’s bicy

cle.) The third injury also occ urred in 1996. The children needed key s which were locked inside of Joseph’s office. They tried to break in through the ceiling, and Esther f ell throug h it. She hit

her hea d on the bo okcase a

nd aga in on the floor when she landed. T

he fourt h injury came ab out when D avid accidentally gave Esther a black and blue eye

with his elbow while playing.

David testified that he had never seen Esther without clothes on and she never c omplained of being molested

by any one. Similarly to James, David was asked whether he had witnessed many of the individual incidents which gave rise to the charg es against theDefend ants. In each ca se, David al so re pl ie d n eg at iv el y. Regar ding Esth er’s sty le of dre ss, David

implied that long dresses and sleeves must have been Esther’s choice, since the child ren wer e not told what to we ar. David also said that the Combs had three different telephones in their home, and he saw Esther use them. She also used the computers and had friends with whom she communi cat ed via the Inte rnet. Da vid claimed to have a “good relationship” with Esther.

David testified that Esther appeared to be “fine” on the day before shewas hospitalized. The next morning, however, one of the other siblings woke him up to come to the bathroom. There he discovered Esther “sitting on the commode and beating her head

against the wall.” He picked her up, laid her on her

bed, and sent one of theother ch ildren to inform the

Defend ants. Later, Da

vid moved her out to the van because the rescue pe ople had not arrived. He estimated that they had been wait ing approxima

tely thirty minutes, a

nd Esther had alre ady

stopped br

eathing three tim

es. Therefore, the Combs were pr eparing to drive h

er to the hospital th

emselve s. He also

claimed that Esther seemed “happy” to return home from the hospital.
During cross-examination, David claimed that James drove the Combs children, including Esther, to the mall on twenty-five or thirty occasions. When asked how many times the Com b s children were a

llowed to h ave fri ends ove r to spend the night

in the EB C fellowsh

ip hall with

them, David replied that this never happened. David also testified that on Marc h 24, 1 997, the day the police and f

ire department

were ba nging o n the f ellow ship hall d oors, he did not h ear anythi ng. When the p olice and firemen finally entered, the time was 11:00 a.m. and it was a Monday . Th e children were all still in their bedclothes and ly ing around, however, because everyone was ill that day.
Cindy Combs was twenty y ears old at the time of trial and the fourth oldest child in t h e Combs famil y. With r egard to the ch ildre n’s sl eepin g arrangem ents, preparation of meals, chore assignm ents, punishment, and Esther’s frequent participation in home-schooling and

playtime, her testimony essentia lly mirrored that of her older brothers, James and David. She also testified that she had n ever seen Esther without clothes and that she had no knowledg e regarding any abuse o r molestation of Esther. With regard to Esther’s injuries, Cindy corroborated David’s testimony that he accide ntally elbowed Esther in the eye w hile playing. A

nother time, Cindy saw Esther g et hit on-28-

the forehead

witha bat during a baseball ga me. Cindy was also specific ally asked whe ther she had witnessed the spec ific incidents which gave rise to the individual counts against the Def endants. She replied negatively

to all questions.
Cindytestified that on the evening of February 17, 1997 (the day

before Esther w as taken

to the hos pital), she and David, Esther, Peter, and Sarah all beg an to feel sick and went to bed. Sometime

later, Cindy woke

up and saw Esther running in the direction of the bathroom. Cindy ran after her. She found Esther in the bathroom with the door shu t. A few m i nutes later, she heard a banging sound. Cindy woke up Peter first. L ater, they woke

up David, who removed Esther from the bathroom . Cindy

dialed 91 1. While the

y w ere wa

itin g for e merge

ncy medical p ersonne

l to arrive, Esther st

opped br eathing a few tim es and be gan to th

rash around. The family beca

me nervous when the ambul ance did

not come q

uickly . They

moved her

to the van

for tran sport to the

hospital. Shortly thereafte

r, the ambulance arrived.

Peter and Sarah Combs, the second y oungest and the y oungest of the Combs chi l dren,
re sp ec ti ve ly, gave testimony essen tially

simil ar to that related by the three other siblings. Peter, fifteen years old a

tthe time of trial, testified that Esther was home-schooled, along with the rest of the children, and that Esther was able to read and w rite. Peter claimed

that he and Esther read books together and

that Esther wrote short stories. According to Peter, Esther slept in the same room as the other children, she did not serve food t o the re st of the family, she wa s not responsible for cleaning up af

te r m ea ls , s he wa s n ot as si gn ed mo re ch or es th an an y ot he r m em be r o f t he fa mi ly, and she was not considered the f a mily servant. Peter fur

ther claimed that punishment for all of the children consisted of “grounding.” He never saw Esther being whipped, bea ten, or starved. Esther
wa s allowed t

o do the sa

me thing s the res t of the c hildren d id, to wit: sh

e watched tele vision an d movies, played Nintendo, talke d on the telephone, went to the mall and the park, rode her bike, and used the computer to“surf the Web.” Peter claimed that he neve r heard the Defendants tell her how to dress, he never

saw her unclothe d, and she

was not tol d whe re t o si t d uri ng c hur ch s erv ice s. In fact, she sat with a number of different people. As for injuries, Peter said that he witnessed a few. He saw her injure her hand in January 199 7, whe n hot gr avy

or gre ase some

how splas hed onto it while she was remov ing a roast from the oven. She immediately ra n to the sink and washed it off. Later that eve ning, he r hand wa s red but s he claimed to be “okay .” Another injury occ urred in 1994
or 1995, during one of themany baseba ll games the children play ed together. Someone threw a bat, which hit Esther in the face. Esther also occasionally scraped her knees when

she pla yed on the asphalt parking lot. Another time, he watched her zealously scratch mosquito bites until they bled.

Peterreca lled that E sther wa s “very happy” on the da

y be fore she went to the

hospit al i n February 1997. She also appeared “relieved an d h ap py” to see the Defendants when they visited her. Before she left town to stay at Sonja Mea dows’ house, E sther told Peter she was “sic k of Debb ie Richmond [M cC au le y] coming after us, [and] coming after her. She’d seen what Debbie ha d done to our family and she w as just sick of i t. She didn’t want it.” Peter was asked whether he had witnessed the individual incidents which gave rise to the char ges against the Defendants. Peter responded nega

tively to all que stions.-29-

The younge st child, Sarah Jane Combs, gave testimony similar to Peter’s a nd the other children regarding

the slee ping ar range ments, mealtime procedures, home-schooling participa tion, shared chore assignments, st andard punishments, the lack of seating restrictions during church service s, and Esther’s involvement in family pla ytime. Sarah also cla

imed that she never saw Esther unclothed or

punished severely. She reca lled only two incide

nts where Esther suffere d any

injuries. The first occurred in the kitchen, when Esther broke a plate which cut

her arm. The second occurred during a baseba

ll game, when one of their friends hit the top of Est her ’s e ye wi th a ba seb all bat . It
was an a ccident . Sa rah also claimed that Esther was able to read a nd write. She explained that Esther would often read to her, and Sarah obser ved her compose long stories and poetry

. According to Sarah, the day pr ior to Esther’s hospitalization in February 1997 was not unusual. Esther seemed

“happy.”While in the hospital, she also s eemed “happy” to see t he family when they visited. Es ther never complained to Sarah that either Defendant had eve r injured her. When Sar ah was asked whether she had witnessed the individual incidents which g ave rise to the charges aga

inst the Defendants, she replied negatively regarding all counts.
Mary Ellen Caldwell testified that she w as working 7:00 p. m. to 7:00 a .m. as a nu rse in the cardiac intensive

care un it at the Me dical Cen ter during Esther’s treatment in Februa ry 1997. Caldwell questioned Esther about

the numerous scars on her body . Esther responded that she “fell
a lotwhen [she] was little.” Caldwell recalled the visits by Esther ’s family and desc ribed them as “very civil, normal.” Caldwell also recalled speaking to Joseph Combs on the telephone when he calledto inquire about Esther’s condition. He asked Ca ldwell to tell Esther that “he loved her.” During cross-examination, Caldwell testified that she observed Esther clutchin g her st

uffed a nimals and exhibiting “restless movements” while at the Med i cal Center. She also moaned loudly and claimed to have nightmares involving her fa ther.

Donna Sue Tiller

also worked as a nurse in the Medical Center’s c ardiac intensive care un it while Esther was a p at ie nt . S he wa s s ch ed ul ed to wo rk on ly o ne da y du ri ng Es th er ’s st ay, from 7:00 p.m. to 7:00 a.m ., and she saw Esthe

r’s fami ly d

urin g visitation. Tiller said that the other Combs children were outgoing and friendly . By contr ast, Esther would only speak w hen spoken to, and she didnot initiat

e conversation. At approximately 4:00 a.m., Esther woke up “whining.” She said she was “ho mesic k,” mi ssed h er “mam a,” and wante d to go home. During her bath, Esther told Tiller that she did most of the cooking at home because she “love d” it. She al so sai d that her si blin gs had their own chores to do. During cross-examination, Tiller testified that she asked Esther about the many scars on her body , but Esther refused to discuss them. According to Tiller, the scars on Esther’ s back and buttocks were too numerousto docume

nt.

Defendant

Joseph Combs testified that he and his wife adopted their son, James, when he was only a few d ay s old. Shortly thereafter , Joseph and Evangeline were told they could not have children, but they

wanted a dditional c

hildren f or James’ sake. Consequently, they decided to adopt another child. Jose

ph conce ded th at he was familiar with the a

doption pr

ocess, ba sed on his experience with James, and that he had signed an ado p tion agreement with the Baptist Children’s Home(the “Home”) concerning Esther (then “baby

Garcia”). Joseph acknowledged that a provision-30-

in the fou rth paragraph of the ag reement stated as follows: “We agree to pay the fee

of gift to the Baptist Children’s Home topay the costs of the Socia l Services and to help defray the expenses of the birth and care of the child.” The terms of the f ee were y et to be discussed, but it was due before the adoption was finalized. The Home allowed Joseph and Evangeline to take Esther home for a

few months prior to si gn in g the adoption papers. She was five months old at the time. Joseph signed the ag reement but a few months later, he became “concerned” about the terms. He soug ht advice from an attorney

named Charles Lee Z

andstra, who informed him that he would be required to pay the Home ten p ercent

of his inc ome for a

n indefin ite period of

time once the adoption was finalized. Joseph called the Home. Whoever answered the telephone (Joseph claimed to not recall the name) told him to consider the matter further and to “take his time,” because “there was no rush.”
During hi s t es ti mo ny, Joseph Combs was s hown copi es of two l etters pr eviously sent to him by the Home. The first was dated March 31, 1978; the second, January 9, 1994. Both requested that he send the Home a copy

of the adoption decree concerning Esther. Joseph admitted doing nothing in response

to the fir st letter

and claimed that he did not r ecall receiving

the seco nd. When his attorney asked him why he never le gally

adopted Esther, Joseph replied that, initially, “it was fe ar of financial pressure.” Since he and his wife already had full custody, they

were in “no rush.” As the year s rolled by, he fe ared that “if [they] tried to g o forward at that point t

hat [they ] would lose her.” Joseph admitted that E sther did not have a Social Security card, a birth certificate, or a drivers license while she lived with them.

J oseph testified that the Combs family lived in I ndiana for thirteen years. In 19 86, the y moved to Clearwater, Florida, becaus e Joseph want ed to start a church there. All of the Combs children had already

been born when they

left Indiana

except for Sarah, the y oungest, who was born in Florida. Their home in Florida was “v ery nice ” : 2200 squa re fee t, with fou

r bedroo ms, 2 1/2 bathroom s, and a poo l. Joseph cl aimed tha t all of the Combs child

ren wer e outgo ing; the

y f requent ly stopped people on

the stree t to talk wit

h them. Joseph denied that he made any attempts to hide the children. He also d

enied tha t Esther w as requi

red to pr epare t h e family’s mea

ls. His wife, Evangeline, perfor

med that d

uty . Accor

ding to Joseph, the relationship between the members of the Combs family

was rea l close, a nd the fa mily “did a lot

together.” Jose

ph tried “to expose [the chil dren] to as many differ ent places and things as possible,” and Esther was not tre ated a n y di ffere ntl y

than any other pe

rson in the family. Joseph denied using “the office” in the Florida homeas a place to spank Esther. Rather, he claimed that the house did not ha ve an office. The family lived in Florida for eighteen months.
Joseph refute d the testimony of Malind a Oakesand Esthe r conce rning E sther’s inability

to read and write. He claimed that she knew

how to do both before le aving I ndiana a nd her ta lents included creative writing. Esther participated in the same home-schooling program as the rest of the children. Instruction took place from 8:00 a. m. un ti l a pp ro xi ma te ly n oo n, Mo nd ay t hr ou gh Fr id ay. Joseph admitted that Malinda Oaks had volunteered to help teach the childre n. Joseph informed her that this was not necessary , but she could possibly tutor them in some sub

jects if s he liked. In sum, he did not enc ourag e her or strictly prohibit her from p articipa ting. Jose

ph also cl aimed th at t he-31-

testimonyof Ros e Kell y Wood, w ho not iced t hat th e back o f Esth er’s l egs we re “v er y, very sca rred,” was untrue.

In 1988, the Combs family left Florida a nd traveled from state to state in a “forty -five foot fifth wheel trailer. ” Joseph h ad received numerous invitations for extended meetings at chur ches
across the country, and he

decided to accept them. Joseph denied giving Esther a “pink belly” during their travels in the trailer, or at any other time.

In April 1989, the family settled down in B ristol, Tennessee. Joseph assumed the pasto rship of EBC, and the Combs took up residence in the fellowship hall of the church. According to Joseph, all of the children, including Esther, slept in the fellowsh ip hall. He claimed that Esther interacted well with the other Combs children. She was “positive,” “cheerful,” a nd p lay ed with all of them. She also play ed with some o f the children who attended EBC and rode he r bike. Esther was not restricted as to where she did these things. With regard to chore assignments, Joseph testified that
no child was given more to do than any other child and none of them comp lain ed. Moreover, he claimedthat Esthe

r was never told th at her pu rpose in l i fe was to be a servant and she was never treated as such. She did not retire at 3:00 a.m. and she was not forced out of bed at 5:00 a.m. Esther watched television with the other

children and she was never deprived of food. Joseph testified that Esther was not sick more than the rest of the Combs children; it only appeared that she

missed more church services because she w orked in the nursery so frequently.
Regarding Esther’ s two atte mpts to run away , Joseph gave the following explanations: The first incident followed an argument that occurr ed between J oseph and his wife. Esther overheard the argum ent, misunder stood it, a nd then decided to t

ake a wa lk. During

her walk , she bec ame confused as to her whereabouts. She noticed a little storeon the roadway and headed for it, but she became nervo us when she saw a police car pull over. Hence, she ducked into the bathroom and locke d the door. Meanwhi le, the Com bs family was sea rching every where f or her. Wit hin a fe w minutes of her de

parture , they

realized she was g one. Joseph

sa id that he was “not comfortable” with the id

ea of Est her bein g outside

because it was raining and rather windy that evening. When the police reported that they had found her, Joseph picked he r up. The second runaway incident began with Esther hearing noises during her shift in the church nursery . Esther became frightened and went outside to investigate. Once outside, she thought someone was chasing her, so she star ted runni ng. The next thing she knew, she woke up on Highway 421. S he began walki ng along the road. A pastor and his wife from Mountain City pic ked her up and tried to help her. She would not tell them who she was, so they tur ned her over to the local authorities. The Combs family learned she had been found at approximately 3:00 or 4:00 a .m. the next morning andthen brought her home.
Joseph testified that on February 17, 1997, the

day before Esther w as taken

to the hosp ital, the Combs children had played vig orously all day . Esther was fine, but tired. Whenevening came,
some of the children did not feel well. Everyone went to bed. The next morning, David alerted he and Evangeline that Esther was having “ some kind of seizure or something.” She was in the bathroom , “kinda jerking around.” Cindy dialed 911. When i t appear ed as though she stopped breathing a few times, and the emer gency personnel had not arrived, Joseph was afraid she would-32-

die any second. The ambulance f inally arrive d, howeve

r, and tr ansporte d her to th

e hospita l. The rest of the family f

ollowed in a car.

The following morning, Detec tive Debbie Richmond-McCauley questioned Joseph in an attempt to deter mi ne how Esther had become sick. Joseph testified that McCauley ’s questions concerned

only Esther’s then-pr

esent condition. She did notask him about the scars on Esther’s body and Joseph never to ld her tha t Esther w as “clum sy”and “fe ll a lot.” He also denied that he was
ever askedto give or sign a statement. Joseph claimed that he visited Esther in the hospital at every opportuni ty and that he and Esther had a “close” relationship. They discussed ma ny personal matter s and he loved her. He thought that she also loved him. Consequently , he was “bewildered” by the accusations against him.
Joseph recalled when the

Bristol F ire Depa rtment ca me to the EBC fellowship hall in March 1997. A day or

two later, Cindy, Peter and Sarah Combs (the minor c hildren) were removed from the custody

of the Combs for approximately one y ear. In June

1997, the family moved to a

place ju st outside of Bri st ol . In October 1997, Esther left town. She stay ed with Sonja Meadows for a short time, and then m

oved to Sou

th Carolin a. Ther

e, she stay ed wi th Re ve re nd Ca rp en te r’ s f am il y. Joseph testified that

he was present when Esther left town. He cla imed that Esther

was “scared” and “f rustrated” by the pol ice dri ving b y the Com bs res idenc e and t he unf amil iar peo ple dr oppi ng b y their home. Esther knew that Joseph had been summoned to go to court. She wanted to leave the area and asked him to assist her. Joseph agreed to do so.
Following the hearing on O c tober 3, 1 997, the Ch ancery Court for Sullivan Cou

nty at Brist ol, Tennessee, issued the

following

court or der which was read into evi de nc e d ur in g J os ep h’ s t es ti mo ny: Upon Petitioner’s motion for physical and psy chiatric examinat ions a nd appointment of guardian ad litem, brought on notice for he aring on October 3rd, 1997, before the Honorab le Richard E. L add, Res pondent did not appear. Respondent’s caretaker, Joseph Combs, app eared a nd testifi ed that a

fter livi ng with

him for over nineteen (19) ye ars, Responde

nt suddenl

y left witho

ut her [sic ] of her pla

ns or whe reabout s some time prior to the servi ce of th e inst ant pe titi on on A ugust the 4t h, 199 7. Alt hough Mr. Combs testified that Respondent, Esther Combs, has called him on the telephone since and has a

ppeare d in his Church

audienc e, he ha s never informed her of th is case and has n o idea wh atsoeve r as to he r prese nt where abouts.
Joseph admit ted th at he h ad kno wledge of Esther’s whereabouts at the time of the hearing and that his statement to the contrary was untrue. However, Esther’s attorney had informed her that she was under

no duty to appear. T

hus, what she did was her choice, and she chose to lea ve town. She was no longer a minor, and Joseph was no t her care taker. T o avoid do ing any thing illegal, Joseph had asked f

or advice from three different a ttorneys on this matter. (He did not testify regarding the substance of such advice.) Joseph said that he and Esther k ept in touch v ia cellular telephone, but he did not see her again until she testified at trial.-33-

Concerning the charge

of especially

aggravated kidnapping

(count 1), Joseph testified that he never confined Esther by a display of dea

dly weapons and tha

t he never observed

Evangeline do
so. The Combs household had three working telephones, and the doors totheir residence all locked from the inside, not the outside. In oth er word s, it

was not possible to prohibit anyone from e xiting the Combs residence by loc king the doors. Further, Joseph testified that in the period of time from April30, 1990 to

October 3, 1997, he

and Evan geline

took fre quent trip s, during which the children
were left at home without ad ult super vis ion. Even when the Defendants were home, the children
were all allowed to come and go as they pleased, within the normal parameters ty pically allowed children. Esther never declared a desire to leave home, and, when her hospitalization and the two runaway incidents were over, she had returned home voluntarily.

With regard to count 2, which alleg ed that Joseph choked Esther with a r ope somet i me betweenJune 1, 1996 and September 1, 1996, Joseph testified that the charge was untrue. Sp ec if ic al ly, Joseph claimed that on March 26, 1996, he underwent surger y to repl ace the

aortic valve in his hea

rt. As a result, he was incapacitated for a period of time thereafter, e.g., he could not preach or drive for month s, and he of

ten felt dizzy and sick. Full recovery took approximately one and one-half y ears. I

n sum, he a sserted

that the o peratio n left him s o phy sically weak tha t he could not have committed this crime.

With regard to count 15, alleging that Joseph raped Esther on June 16, 1991, Joseph testified that the family spent the entire day ea ting fried c hicken a

t his mother ’s house. They returne d home in time for the evening service at chur ch. On November 25, 1993, the day Joseph a llegedl y commi tted th e c ri me of

ra pe in co un t 1 6, th e C om bs fa mi ly h ad ag ai n s pe nt th e e nt ir e d ay a t hi s mother’s hou se. It

was Than

ksgiving Day , and the f

amily didnot retur

n home unti l approxima

tely midnight.
Joseph also denied committing the crimes in theother counts against him. Joseph’s attorney showed him a photograph of four items (Exhibit 178): an umbrella with some of the spokes exposed,
a piece of wood, a coiled metal wire, and a piece of metal (resembling a bent c urtain rod). The items
were discovered by

the police investigators at the EBC fellowship hall after the Combs’ departure. Joseph denied using the items to b eat or whip Es ther. Jose ph also de

nied using

Esther’ s head to make the hol e in his of

fice wall, as shown in the photograph numbered Exhibit 174. Joseph then repudiated

Esther’ s o ther al legations, to wit: he claimed he did not beat her black and blue with a water hose as punishment for running away ; he did not ever give her a black e ye; he wa s unfamiliar withthe “nor

mal positio n” she ha

d claimed to assume

during b eating s; he did not require that Esther
wear certain type s of ap parel; h e did not force her to wear her ha ir in any particula

r style; powder
was never placed in front of the door to Esther’s room; the c ondition of Esther’ s front te ethwas the result of a fall, rather than the colliding of her face with a wall; and he did not treat her any differe ntly than t he ot her Combs children. In addition, Joseph said he never obser ved his wife, Ev an ge li ne , b eh av e a s d es cr ib ed by E st he r d ur in g h er te st im on y. During cross-examination, Joseph denied that he responded , “What marks?” when Dr. Gerlock asked him about the scars on Esther’s body . He also denied say ing, “She falls a lot,” when-34-

questioned further. Joseph said that he did not recall meeting Dr. Gerloc k. He also d

id not reca

ll talking wi th Su sa n E ar ly, who previously testified that Joseph had ref used to respondto questions about the origin of Esther’s scars. Joseph explained that he quit answering all questions after talking withDe te ct iv e M cC au le y. Joseph denied telling Dr. Stiefel that Esther had never been to a hospital
or to see a doctor, because this was not a true statement. He also refuted the testimony of Gayland Oaks, which stated that Joseph had said “it was necessary to spa nk [a child] through their rebellion until they stop resisting a nd crying .” In addition, Joseph disclaimed making the following statements: (1) God had created Esther to be a se rvant and he was training her to do so; (2) Esther
was clumsy and fell a lot; (3) it was Esther’s responsibility to car e for the young er children; and (4) he had never seen scars on Esther bef ore. Joseph also claimed t hat the te stimony

of Arnold , Owens, and Hensley, c oncerning food deliveries to the Combs family , was untrue. Joseph admitted that the Defendants’ failure to lega lly adopt Esther prohibit ed her from obtaining both a Social Security number a nd any ty pe of job which re quired one. Joseph also testified that he did not have Esther “taken” any

where, when she left town in October 1997. I nstead,
a man named Ricky Mar

tin “took her somewhere and she ended up at Sonja M eadows’ [home].” Joseph claimedth at the record of what was said during the hearing, as reflecte d by Judge L add’s order, was inaccurate. According to Joseph, his testimony on October 3, 1997, stated that “he wasn’t
sure where she was and [he] had reason to know or to believe that [he] knew where she was.”Next, Joseph stated that he was asked only whether he had informed Esther about the subpoena, a nd then he admitted that he wa s “fairl y c onfident

that she w as [with Sonj a Meadow s]” at that time. He a

lso admitted arrang

ing Esthe r’s tran sportatio n to South Carolina. He said he did this because he loved her and she needed his help.

Also durin g c ross-examination, Joseph was shown sixteen photos of the numerous scars covering Esther’s bod y. For e ach photograph, the prosecutor asked whether he could give any explan ation as to the cause of the scar. Joseph claimed to have knowledg e regarding on ly thre e scars: a scar on Esther’s left arm was ca used when she broke a plate; a scar on her right ey ebrow was caused when she was hit with a baseball bat while playing

a game; and another on her forehead was probably caused when she ran into the television or fell in gra vel, he w as n ot certain. As for the
scars on her shoulder, lower back, arms, hands, buttocks, and thig hs, Joseph claimed to ha ve no knowl edge of their presence or their origin. Regarding the photog raphs of places normally

covered by Esther’s clothing, Joseph testified that he could have no knowledge c oncern i ng these injuries since he had never seen her unc lothed.
EvangelineComb s di d no t te stif y . Fo llowing

the tes timo ny

of Jo seph Comb s, both Defend ants rested their cases. As rebuttal proof, the State called Ricky Da

le Martin, who testified that he never transported Esther from Br istol to the re sidence of

Sonja Mea

dows. Dur

ing cro ssexamination, he st ated tha t E sther had never even been in his vehicle. Sonja Mea dows then corroborated Martin’s statement that he did not drive Esther to her house

. JennySmeltzer, the director of the 911 Dispatch Unit in Bristol, Tennessee, testified that the 911 sys tem is cap able of a ccurat ely record ing the e xact time a

callis received and

the prec ise time-35-

the 911 emergency

personnel first arrive at the scene. I n this case, the 911 dispatch records reflecte d the follo wing: a 911 call was received from EB C at 11:00:18 a.m.; a second call was received fr om the same loc ation at 1 1:04:28 a. m.; the fir st officer or medical technician arr ived at the scene at 11:04:24 a.m.; and the ambulance arrived at 11:09:31. The ambulanc e a rrived nine minutes and thirteen seconds a

fter the first 911 c all was r

eceive d by

the 911 Di spatch U

nit.

To rebut the testimony of

defense witness Sa

muel Johnson

(who cla imed the Co mbs family homewas “normal”), the State presented the testimony of Franklin C. McCau le y, Jr., a Special Agent, Criminal Investigator with the Tennessee Bureau of I nvestigation. Agent McCauley said that he had a telephone conversation with Samuel Johnson in c onnecti on with Esther’s case, during which Johnson info

rmed him th at the Comb s childre n were v ery

quiet and didnot interm

ingle with the other kids. Moreover, Esther did not even intermingle with the ot her chil d re n i n t he fa mi ly. Johnson informed Agent McCauley that he never really

spoke to the childre

n or had th

e opportu nity to get c lose to the

m.
Prior to charg ing the j ury , the tria

l court he ard arg

uments by both parties concerning various motions, inclu ding a motion to di smiss counts 3 through 6 on the ground that the charg es were barred by the statute of limitations . (Coun t 3 charg ed both De fendant s with ag grava

ted assa ult; count 4 charg ed Evang eline wit h agg ravate d assault ; and coun ts 5 and 6 charge d Evang eline wit h assault.) Following the hearing, the trial cour t dismissed counts 3 through 6 as barred by t he statute of limitationsand instr

ucted the jury concer ning the remaining char

ges. After some deliberation, the jury convicted Defendant Evange line Combs of

one count of especially

aggravated kidnapping

and four co un ts of

ag gr av at ed ch il d a bu se . T he ju ry found her not guilty of one c ount of aggravated
ass ault. Def

endant Joseph Combs was convicted of one count each of especia lly agg ravated kidn appin g, aggr

avated a ssault, a

ggra vated pe rjury , and ag grava

ted rape , in additio n to seven co unts of rape. Following a sentencing hearing, Evangeline Combs rec ei ved a sentenc e of 65 yea rs, and Joseph Combs received an effective sentence of 114 y ears.
ANALYSIS
I. Voir Dire Proceedings

Both Defendants contend that the trial court committed errors during the voir dire examination of

two prosp ective ju

rors. Specifically, the De fendants argue that the examination of Hunter Jones revealed that he would be unable to render an impar tial verdict. Ac cording ly, th e Defend ants assert that Jones should have been excused “for cause,” a nd the trial court ab used it s discretion by r

efusing to do so. The Defe

ndants al so contend that the trial court limited the scope of the Defendants’ questions with regard to whe ther a p rospect ive juror, Misty Bishop, harbor ed “suspicions of guilt.” The Defendants maintain that this limitation was improper because it critica lly impaired their attorneys’ ability to uncover juror bias. To summar ize, the Defenda nts argue that these errors require reversal

of the ju dgments in this case because they effectively

denied the Defendants their constitutional right to a fair and impartial jury . We disagree.-36-

The ultimate goal of voir dire is to see that jurors are competent, unbiased, and impartial, and the decision of how to conduct voir dire of prospective jurors rests within the sound discretion of the trial court. State v. H arris , 839 S.W.2d 54, 65 (Tenn. 1 992); State v. Simon , 635 S.W.2d 498, 508 (Tenn. 1982). The trial judge’s actions in the conduct of voir di re will no t be distur

bed unles s there is an abuse of that discretion. State v. Irick , 762 S.W.2d 121, 125 (Tenn. 1988). The Sixth and Fourtee nth Amendmen

ts unquest

ionably guara ntee a de fendant the right to an impartial jury. See Wainwright

v. Witt , 469 U.S. 412, 105 S. Ct. 844, 83 L. Ed. 2d 841 (1985). The process of voir dir e and the defendant’s use of peremptory c hal lenges is one means to achieve that end. Ross v. Oklahoma , 487 U.S. 81, 88, 108 S. Ct. 2273, 2278, 101 L. Ed. 2d 80 (1988).

The trial cou

rt h as wide d

is cretion in ruling upon the qualifications of a juror. State v. Kilburn , 782 S.W.2d 19 9, 203 (Te nn. Crim. App. 1989). When the trial court erroneously refuses to excuse a j uror for

cause, t he erro r is harml ess unles s the jury that hea rd the ca se was not fair and impartia l. Statev. Thompson , 768 S.W.2d 239, 246 (Tenn. 1989). It is well-settled that a de fendant who disag

rees wit h a trial court’s ruling on juror challenge s “for cause” must, in order to preserve the claim that the ruling deprived him of a fair trial, first utilize such peremptory challenges as he has available to removethe jurors. State v. H owell , 868 S.W.2d 238, 248 (Tenn. 1993). The trial court’s failure

to properly e

xclude a juror for cause is grounds for re versal only if the

defendant has exhausted all of his p erempto ry challen ges an d an incom

petent ju ror is then forced upon him. Ross , 487 U.S. at 89, 108 S. Ct. at 2279; State v. Jones , 78 9 S .W .2d 545 , 54 9 (T enn . 19 90) . In their bri efs, bothDefend ants cla

im that they had utilized all peremptory challeng es prior to the voir dire examinations of the jurors in issue. The record does not indicate otherwise , and the S tatedoes not dispute their claim in its brief.

A. Failur

e to Excus e Hunter J ones for Ca use
The Def endants c ontend tha

t Hunter Jones should

have been excused “for cause”because the voir dire examination revealed that (1) Jones was “intricately r elated” to numerous prosecution witnesses through

profess ional and

persona l relatio nships, and (2) his e mp loymen t in an administrative position with Wellmont H ealth Sy stems ga ve him pre-trial exposure to information about the trial . The Def

endants maintain that both c ircumsta nces cle arly

affec ted his judgment, thereby r endering him unable to deliver a fair a nd impartial verdict.

The record reflects that Hunter Jones, a reg istered nurse, was also employed a s the Director of Ed ucation an d Development Services at Wellmont Health System. His duties included se tting up continuin g educ ation pro grams for nurses and other he alth car

e profe ssionals. Jones state d that, in this capacity, he h ad met or inst ructed various witnesses whose names were on the State’ s potential witness list. (Two of the witnesses known to Jone s did, in fact, testify: Susan Ear ly and Elizabeth Owen Crib

b.) During voir di

re, th e attorney for

Joseph Combs asked Jones whether he might consider the testimony of those witnesses whom he kne w to be more credible than that of the other witnesses. Jones responded, “No, not necessarily .” Jones claimed that he knew three of the possible witnesse s (Tere sa Bott, Susan Early, and Elizabeth Cribb) “f airly well.” He

had worked as
a direct supe rvisor ove r Bott for two and one-half y ears, but they did not socialize; Early was the-37-

social worker

assigned to his wife’s case, and they had worked onvarious committees together; and Cribb had serv ed on a c ommittee w ith him. Jones stated that he had not discussed the case with any of these women and none of them knew he had bee n called as a potential juror. Jones said that he had a “pretty c lose personal relationship” with Early , but he claimed t hat this would not ca

use him to give her testimony

additional weight. With reg ard to any pre- trial knowledge of the case, Jones testified that t he upc omin g Comb s tri al was discu ssed d uring a managem ent me eting: management had instructed the department heads to remind their staff that the trial was pen ding, that some of the staff would be witnesses, and that they were not to discuss the case with anyone.

At the conclusion of

Jones’ voir

dire examination, the attorney s for both Defendants moved to di sm is s J on es “for ca us e. ” A s j us ti fi ca ti on fo r d is mi ss al , t he at to rn eys argued that Jones worked forthe same

employ er as som e of the St

ate’s witnesses a

nd that he

was tied t

oo closel y to them, especia lly Early. The tr

ial judge de ni ed the motion, stating that Jones was “very specific that he could not overstep any

bounds.”

In their briefs, the Defendants cite Rule 24(b)(2) of Te nnessee’s Rules of Cr

iminal Procedure, which pr ovides tha

t any party may challen ge a pr

ospectiv e juror f

or cause if

The prospec tive juror ’s exposu re to potentia

lly prej udicial information makes the person unacceptable as a juror. Both the degree of exposure and the prospective juror’s testimony as to his or her state of mind shall be considered in determining acceptability. A prospe ctive jur or who sta

tes that he or she will be unabl e to
overcom e preconceptions shall be subject to challenge f or cause no matter how slight the exposure. If the prospective juror has seen or heard and remembe rs information that will be developed in the cour se of trial, or that may be inadmissible but is not so prejudicial as to create a substantial risk that his or her judgment will be aff ected, the prospective juror’s acceptability shall de pend on w hether th e testimo ny as to impartialit

y is believed. If the prospective juror admits to having formed an opinion, he or she shall be subject to challenge for c ause unless the e xami nation shows unequivo cally

that the p rospect ive juror can be im

partial.
(Emphasis added.)

With regard to Jones’ pre-trial knowledg e of information relating to the Combs case, we find the degree of exposure minimal. The defense a ttorneys’ questions on this matter wer e cursory and the details regarding

his knowledge remained essentially undeveloped. The record only shows that
a management meeting was held, whic h resulted in an admonition to the staff to ref ra in from discussing the case. Jones was not asked precisely what he heard or from whom he heard it.
According to Rule 24(b)(2), “theprospective juror’s testimony a s to his or her state of mind shallbe considered in determining acce p ta bility .” The tr

ial judg e found th at Jones wa s “very specific that he could not overst

ep any bounds.” We have di scovered nothing in the rec ord whic h casts doubt
on the trial

court’s conclusi on. The r ecord isalso devo id of any indicatio n th at Jo nes’ personal-38-

and/or professional affiliations with the State’s witnesses would af fect his j udgmen

t so that he

would be unable to render a fair and impartial ver dict in this cas e. The De

fendant s argue that the medical personnel of Wellmont Heal th S yst ems compr

ised a sig nifican t portion o f the State ’s witnes ses. That may be so. How ever, Jone s knew onl y Ea rly and Cribb , and the t

estimony of neithe r witness was conclusive onany issue at trial. B oth testified as to th e a pp ea ra nc e o f s ca rs on Es th er ’s bo dy, evidence which was substa ntiated b y photogra

phs and the

testimony

of numer ous other witnesse s. In addition, Early testified that the De fendants were not

forthcoming with information regarding the origin of Esther’s scars, but that Evange line subsequently

informed Early

that Esther “fell a lot and was clumsy.” Ag ain, this testimony was similar in content to that of other witnesses.
B. Limitations on the Scope of Voir Dire

The Defendants also contend that the tri al court p laced lim

itations on

the scope

of their questions during voir dire, which prevented them from achieving the well-established goa ls of this processand also r

endere d their tr

ial funda mentally unfair. We rejec t both arg uments. According to the re cord, Mis ty Bishop revealed during voir dire that she had been exposed to some pre-trial publicity via prior conversations with people at work. She claimed that she did not recall hear ing any

thing about the case on the news and that she had not re ad the newspaper, b u t acknowl e dged that various co-wor kers had expresse d their op inions to he r rega rding th e Defe ndants’ guilt. The trial judge asked Bishop whether she had formed an opinion herself. She replied, “I don’t know th at I have enoug h information. They just told me what they had heard, so I re ally don’t know.” The trial judge followed with a pointed question: “[A]s a result of talking with these other people, these pe ople you work w ith or any where e lse of any informa

tion, did you, y

ourself, form or express any opinion as to the innocenc e or guilt of either Mr. Joseph Combs or Mrs. Evang eline Com bs? ” Bishop replied that

what she had heard from her co-w orkers sounded “bad,” but she had not“heard from any

reputable forum other than this person at work.” Consequently , she could not say that she had “actually

formed a strong opinion about it because [she had] not heard any real fa cts about it.” Following a few more brief questions, Bishop concluded that s he had not “h eard en ough to really for

m an opinion.” The trial judge explained to Bishop that one of his duties was to ensure “an absolutely even play

ing field, ” and then he asked her the following question: “[I ]f you were
se lected as a juror and I instructe d you that y ou could not consider any outside information, T.V., comments of friends or family, that ty pe of thing . . . . [c]ould you, without doubt, follow that instruction . . . and not

co nsi der a

ny thi ngexc ep t the e vid

en ce tha t c ome s in at tri al ?” Bishop replied, “Yes.”
Next, Joseph Comb s’ attorne y questioned Bishop whe ther she had a “suspicion” that the Defend ants were guilty . Again, Bishop stated that she did n ot hav e enou gh information to form an opinion. The attorney then a sked whether some deg

ree of e vidence was req uired “t o do away

with what [the co-worker] told [her]” and whether the Defend ants “would have t o prove so mething

to [her].” Bishop responded that she would need evidence “ to see both sides.” Thereafter, the attorney representing Evangeline Combs asked Bishop similar questions, including whether the information she previous l y receive d h ad ra is ed a s us pi ci on of gu il t i n h er mi nd . B is ho p r ep li ed af fi rm at iv el y:-39-

a suspicion of

guilt had been raised. The attorney then askedwhether it was fair to state that, since she had this “suspicion,” she was “going to need to hear something from [the Defendants] to prove they’re innocent.” Bishop replied that this was “probably a fair statement.”
The following colloquy

then transpired between Bishop and the trial judg e: [THE C OURT ]: All right. Let me ask y ou this, Ms. Bishop.
[BI SHOP]: Yes, sir.
[THE C OURT ]: A defen dant, in any cri minal case, i s not requi red to prove anything.
[BI SHOP]: Yes.
[THE C OURT ]: Theyhave no b urden in t he case . The bur

den is alw ay s upon the S t ate t o prove guilt beyond

a reasonable doubt. And this burden of the State, it goes to each and every

element required to make up the offe nse and a juror must grant the presumption of innocence to any defendant on trial. Now, can y ou do that?
[BI SHOP]: I believe so.
[THE COURT ]: All right. Now, the reason I asked y ou that you had indicated

you might

not have known that standard, but you say you believe

so. Is there any

question about it? If there is, just --
[BI SHOP]: I

don’t--I don’t think that I would have a problem doing that. L ike I said I’ve notheard a

ny informati on from a

reputab le sourc e to tell

me the details about exactly what happened o r e xa ct ly w hat went on and I heard this from a coworker and I’ ve not heard it from the news . . . . As far as believing they ’re innocent until prov en guilt

y, I believe I ca n--I could say

that.
[THE COURT ]: Could you tell me y

ou would require the State to do that? To prove the guilt bey ond a rea sonable d

oubt.
[BI SHOP]: Right.
[THE C OURT ]: If th ey failed to do so, woul d yo

u acquit t he defe ndants?
[BI SHOP]: Yes.

Imme diately

thereafter, the attorney s for both sides argued that Bishop should b e exc used “for cause,” based upon her admission that she had a “suspicion of guilt” which

must be “o vercome-40-

by evid enc e.” In deny

ing the attorney s’ request, the trial judge inferred tha t Bishop’s equivocal
answers on the issue of suspicion were a result of the way the atto rneys’ que stions were phrased. He then ma

de the fo llowing c omment:
Now, the question that you feel a ny suspicion, well, I’m sure, probably , I--I think any damn fool sittin g on a ju

ry is going to feel some suspicion. The fact that somebody’s charged

. But the p oin t is how is this going to hurt them, in their deliberations, or th em to fu nc ti on or do th ei r d ut y. Following a review of the rec ord, it appears to this Court that Bishop was clearly reluctant to form an o

pinio n without sufficient information and that the equivocal nature of B ishop’s responses to questions regarding her own “suspicions of g uilt” may have been b egge d by the questions put to her. Questions designed or framed to elicit

answers which suggest impartiality are disapprovedof by the Advisory Commission. See Tenn. R. Crim. P. 24, Ad vi so ry Commission C omments. In any

event, th e critic al issue isnot whether or not a prospe ctive jur

or harbo rs a scintilla of suspicion, but “whether the juror’s views wo uld ‘prevent or substantially impair the performance

of his [or he

r] duties a s a juror

in accor dance w ith his [or her] oath.’” Wainwright v. Witt , 469 U.S. 412, 424, 105 S. Ct. 844, 852, 83 L. Ed. 2d 841 (1985) (this standard does not require that a juror’s bias be proved with “unmistakable clarity ”). The record indicates that after the issue of “suspicion” was raised, the trial judge informed B ishop of the legal standards involved and the presumption of innocence due a defendant. The trial judge then questioned Bishop further and, therea fter, wa s satisfie d that Bis hop would b e capab le of fulf illing the role of a n impartia

l juror in this case. The trial court’s determin ations co ncernin g the fitness and credibi lity

of a potential juror
are accorded great de

ference. Id. at 426, 105 S.Ct. at 853 (“deference must be paid to the trial judge who sees and hea

rs the jur ors”); State v. Keen , 31 S.W.3d 196, 228 (Tenn. 2000) (because the trial court has the op

portunity to observ e the dem

eanor of prospec tive juror s a n d, thus, ev aluate th eir
cr ed ib il it y, its findings are accorded g re at d efere

nce and shall not b e set asid

e unless c learly erroneous). We find no abuse of discretion by the trial court in this matter.

With regard to the Defendants’ a rgument that

the trial judge improperly limited the scope of their questions during voir dire, we cannot find any statement by the trial judg e in the record which could be construed to affirmatively restrict or “limit the scope ” of the at torney s’ questio ns. Moreover, neither

Defend ant has c ited any

specific circumst ance wh ere the trial jud ge’s “ru ling” unduly circumsc ribed the ir ability to uncover

bias. As f

or the ultimate go al of voir dire--to impanel jurors who are competent, unbiased, and impartial--we do not find it unsatisfied here.

In summary, we c onclude that the trial court did not abuse its discreti on in ref

using to e xcuse either Hunter Jones or Misty Bishop for cause. “Jurors need not be totally ignorant of the facts of the case on which they

sit, and ma

y sit on a cas e even if

they have for med an opinion on the

merits of the case, if th ey are

able to set aside that opinion and render a verdict base d on the evidence presented in court.” State v. Sammons , 656 S.W.2d 862, 869 (T enn. Cr im. App. 19 82); see also Murphy v. Florida , 421 S. Ct. 794, 799 -80 0, 9 5 S . C t. 203 1, 2 035 -36 , 44 L. Ed. 2d 589 ( 1975); Irvin v. Dowd , 366 U.S. 717, 722-23, 81 S. Ct. 1639, 1642-43, 6 L. E d. 2d 751 ( 1961); Adams v. State ,-41-

563 S.W.2d 804, 807 (T enn. 1978). The determination of impartiality is a matter within the discreti on of the t

rial cou rt, Sammons , 656 S.W.2d a t 869, whic

h may be overt urned on ly in cases of “manifest error.” Patton v. Yount , 467 U.S. 1025, 1031, 104 S. Ct . 28 85, 288 9, 8 1 L. Ed. 2d 847 (1984). Since we are unpersuaded that neither B ishop nor Jones was inca pable of deliver ing a fa ir and impartial verdict, we also find no reversible error

. The Def endants a re not en titled torelief on this issue.

II. Ame ndment of the Pre

sentme nt

The Defendants contend that the trial court erred by

allowing a non-consensual amendment to count 1 of

the pres entment, chargin g both Defend ants w ith es pecial ly aggravate d kid nappi ng, because the amendment alleged a differe n t offense

than that

in the orig

inal pre sentment. Sp ec if ic al ly, the Defe ndants assert that the amendment changed ce rtain essential elements of the offense and also removed defenses which were ther etofore available to them. As a result, they a rgue that their substantial rights w ere af fected , in direct contravention of Rule 7(b) of Tennessee ’s Rules of Criminal Procedure, and that the State’s failure to s eek grand jur y review of

the “material variance” created by

said amendment also violated their constitutional rights. We disagree.
According to the record, count 1 of the original prese ntmentcharg ed both De

fendant s with committing the offense of especially aggravated kidnapping , Tenn. Code Ann. § 39 -13-3 05, between November 16, 1989 a

nd Octobe

r 3, 1997. Howeve

r, on the d ate that t

he offe nse alle gedly commenced, November 16, 1989, the crime of especia lly aggr avated k idnapping did not y et exist. Instead, the offe

nse in issu e would ha

ve been defined in the app licable s tatu te as ag gravated kidnapping, which provide d as follo ws:

A pe rs on is gu il ty o f aggra vated kidnapping who unlawfully removes or confines another: (1) To hold for ransom or reward, or as a shield or hostage; (2) To facilitate commission of any felony or flig

ht thereafter; (3) To inflict serious bodily injury on or to terrorize the victim or another; (4) To interfere with the performanc e of any g overnmental function; or (5) While armed with a deadly weapon.

Tenn. Code Ann. § 39-13-301(a) (Supp. 1989). Subsection (b) of that statute designated agg ravated kidnapping as a ClassA felony. Eff ective April 30, 1990, the statute defining aggra vated kidnapping
was amended and the separate offe nse of especially

aggravated kidn appin g w as crea ted, which is
curren tly d efined a s follows:
Especia lly aggravated kidnapping

is false imprisonment, as defined in § 39-13-302 [i.e., the knowing removal or confinement of a noth er unlawfully so a s to interfere substantia lly with t he ot her’ s libe rty ]: (1) Accomplished with a deadly weapon or by

display of any

article u sed o r fashioned to lead the victim to reasonably believe it to be a deadly

weapon;-42-

(2) Where the victim was under the age of thirtee n (13) at the time of the removal or confine ment; (3) Committed to hold the victim for ransom or reward, or as a shield or hostage; or (4 ) W he re th e v ic ti m s uf

fe rs se ri ou s b od il y in

ju ry.

Tenn. Code Ann. § 39-13-3 05(a) ( 1997). Sub section ( b)(1) of this statut

e desig nates es pecially aggr avated k idnapping as a ClassA felony . Agg ravate d kidnapp ing is now a Class B felony. See Tenn. Code Ann. § 39-13-304(b)(1) (1997).
During a motions hearing on Februa ry 3, 200 0, the trial court heard arguments from the D efenda nts and the State concerning the fact that the time of the offense alleged in count 1 overl appedtwo different statutes. The State proposed to eliminate the problem in the following manner: (1) amend the offense commenc ement date in the presentment from November 16, 1989, to April 30, 1990, which would move the entire course of conduct of the continuing offense into the purview of the current statute; (2) dele te the languag e “to ter

rorize the victim,” w

hich did not exist in the current statute, (3) delete the refe rence to the victim’s age at the time of the off ens e, an element under the current statute only , and (4) change the cite ref erence in the presentment to reflect the current statute code number: Tenn. Code Ann. § 39-13 -305. At th e concl usio n of th e heari ng, the trial court permitted the State to amend count 1, over the objection of both Defenda nts. The trial court’s order, f

iled Feb ruary 7, 2000, st

ated its f indings in this matt

er as fo llo ws: the statutory language in the presentment a nd the two statutes involved isconcurrent, in that they all describe a Class A felo ny; the am endme nt di d not enlarge the time frame of theoffense; the amendment deleted
one aggravat ing cir cumst ance, i .e., t he age of the victim, from the pres entment; a

nd the lan guag e in the origina l pres entme nt cle arly descr ibed t he offe nse of especi ally aggrava ted ki dnapp ing. Ac co rd in gl y, the court found that “no substantial ri ghtof the defendants would be prejudiced” by the amendment, citing Tenn. R. Crim. P. 7(b).

Rule 7(b) of Tennessee’s Rul es of Criminal Procedure, entitled “Amendm ents of Indic tments , Prese ntmen ts and Informat ions ,” pro vides the fo llow ing:

An indictm ent, presentment or information may be amended in all cases with t h e consent of the defendant. If no a

dditional or different offense is thereby charged and
no substantial rights of the defendant are thereby prejudiced, the court may permit an amendme nt without t

he defe ndant’s c onsent before je opardy attache s.
The amendme

nt of coun

t 1 in th is c ase did not effectively charge the Defenda

nts with an additional or dif ferent offens e than that i n the o rigi nal presentmen t. The deletion of t he phras e concerning “terrorization” of the victim hadno substantive effect on the charge . As shown above, the fo rm er st at ut e c on ta in ed th e l an gu ag e “ [t ]o in fl ic t s er io us bo di ly i nj ur y on or to terrorize the victim o r another.” Te nn. Code Ann. § 39-13-301 (Supp. 1989). Clearly , this element may be pr oven by t

erroriza tion of the victim or serious b odily

injury , becau se the two

possible c ircumsta

nce s are connected by

the disjunctive term “or.” Serious bodily injury is an element of both the former-43-

and the latter statutes. Hence, deletion of the phrase concerning ter rorization is of no consequence in this par ticular c ase, sinc e seriou s bodily injury was also a

lleged in the orig

inal pre sentment.

The Defend ants al so argu e that ch anging the date of the co mmenceme

nt of the o ffense

in count 1 from November 16, 1989 to April 30, 1990 removed certain defenses which would have been available to them under the forme

r statute . Howeve

r, their a rgumen t is based on an assertion that they can p rove they did no t ter

rori ze the victim, and we have concluded that whether they

can prove this or not is immaterial, for the reasons given above.

The Defend ants also contend that the State’s deletion of thereference to the victim’s age at the time of the offense prejudiced their case by making unavailable a previ ously viable defe nse. They assert that the confinement of Esther w as not unla

wful due to their st

atus as “ foster p arents” while she was under the age of thirtee n. In thi s argum

ent, Def endants r ely on the statutory definition of “unla wful,” w hich state s the follo wing:

“Unlawf ul” means, w ith respect to remo val or co nfineme nt, one which is accomplishedby force , threat or fraud , or , in the case of a person who is under the age of thirte en (13) o

r incompe

tent, ac complished without th e consen t of a par ent, guardian or other person res ponsi ble for the general supervision of the minor’s or incompetent’s welfare.

Tenn. Code A nn. § 39-13-3 01(1997) (this definition is identical in all material aspects to the definition contain ed in the former statute. See Tenn. Code Ann. § 39-13-301(b) (1989)). Ap pa re nt ly, the De fend ants believe that the removal or confinement of Esther wa s, arguably , not “unlawf ul” because it was clearly accomplished with their consent, as “other person[s] responsi

ble for the general supervision of [her] welfare.” Id. Once again, we note the pre sence of the disjunctive term“or.” A plain reading of the statute reveals that removal or confinement by force, threat or fraud remains unlawful , even i f accomplished with the consent of a parent, g uardian or other person entrustedwith the minor’s care. Moreover, we further note that Esth er tur ned th irtee n years of a ge on November 16, 1990. Amending the presentment to read April 30, 1990, rather than November 16, 1989, mer

ely reduces the victim’s alleged period of confinement while under the age of thirteen from one year to a

pproximate

ly s ix and one- half

months, a reduc tion of fiv e months a nd two wee

ks. Any “defen se” arg

uably available under the old statute would remain not only viable but necessary under the amended

presentment, since the presentment as amended on ly reduced

the peri od of time Esther was confined while under thirteen years of age--it did not eliminate it. Nor did it change the fact that, after Esther turned

thirteen, the alleged confinement continued for more than six years a

nd ten months. See Stat e v. Legg , 9 S.W.3d 111, 117 (Tenn. 1999) (“an act of removal or confinement does not end me

rely upon the in

itial res traint, a

nd a defe ndant con tinues to commit the crime at

every momentthe victim’s liberty is taken”). I n any eve nt, reducing the period of

time in the presentment for th e cont inuing offense of especially aggravated kidnapping

did not charge any

additional or different offense. Moreover, no substantial rights of either Defend ant were

prejudic ed. Thus, Rule 7(b) permits the co urt to allow an amendment without a defendant’s consent before jeopardy-44-

attache s. Since jeopardy ha d not attached at the time of the amendment in this case, we find no err or. See Tenn. R. Crim. P. 7(b).

We ar e also unpersuaded that the State’s failure to seek g rand jury re

view prior t o it s amendment

of the presentment violated the Defendants’ co nstitut ional rights. Specifically , the Defend ants argue that the amendment infringed upon their right to be indicted by a grand jury

under Article I, section 14 of the Tennessee Constitution, because the crime for which they

were convicted in count 1 constitutes a “material variance” fr om the offense charged in the presentment. For the
reasons stated a

bove, we have alr eady determined that chang in g the commencement date of the offens e, along wi th deleting the reference to the a ge of the victim and the languag e involving terrorization, did not c harg e an add itional or differe nt offen se. Anal ogously , the ame ndment al so didnot constitute a material variance, and we find no constitutional violation. See Statev. Kennedy , 10 S.W.3d 280, 284 (Tenn. Crim. App. 1999) (where the date on an indictment was immaterial, and the in di ctm ent as a men ded di d no t ch arg e th e de fen dan t wi th a ne w or add it io nal cri me, Art icl e I, section 14 concerns are not implicated).

Under both the United States and Tennessee Constitutions, an indictment must inform the accused of “the

nature a nd cause of the ac cusation .” U.S. Con st. amend . VI; seeTenn. Con st. art. I, § 9. I n Tennes see, its f

orm mu st also satisfy the requirements of Tennessee Code Annotated section 40-13-202, which provides that an indictment
[M]ust state the facts constituting the offense in ordinary and concise language , withoutprolixity or repetition, in such a manner as to ena ble a person of common understanding to know what is intended, and with that degree of certa inty which

will enable the court, on conviction, to pronounce the proper judg ment.

The indictment satisfies the constitutional guarantees of notice to the ac cused “i f

it provides sufficient information (1) to enable the accused to know the accusationto which answer is required, (2) to furnish the court an adequate ba sis for en try of a prope r judgment, and (3) to protect the accused from double jeopardy .” State v. H ill , 954 S.W.2d 725, 727 (Tenn. 1997) (citations omitted).

In summation, we belie

ve t hat the a

llegat ions in the

unamended presen

tment wer

e quite sufficie nt to advis e the Defendant s of the offense for which they had to de

fend and for which they
were ultimately co n victed. T he amend ment did no t mislead e

ither Defendant

as to the c

harge in count 1; nor did itdestroy any

potential defenses. The Defendants are not entitled to relief

on this issue.

III. Bill of Particulars

The Defend ants contendthat the Sta te faile d to prope

rly comply with their request s for a bi ll of particul ars regarding the c harge of especially

aggravated kidnapping . Specifically, the De fend ant s argue t hat the Sta

te faile d to alleg e in the pr esentme nt what spe

cific acts cause d the conf in ement , when the acts occurred, what specific injuries c onstituted “serious bodily injury ,” and what weapon-45-

was used to inflict su ch injury . Accor dingly , they

assert th at the tri al court ’s denia l of their request for a bill of particulars was error beca use this information was necessary to diligently prepa

re a defense, avoid prejudicial surprise at trial, and preserve a plea of double jeopardy. I

n response, the Statecontendsthat it ga

ve the De fendant s all of the

informat ion in its pos sess ion concerning the above circumstances, in accordance with Rules 3(c) and 1 6 of T ennessee’s Rules of Criminal Procedure, and, therefore, no er ror exists. We agree with the State.

The record

reflec ts that th e Defend ants filed separate motions for a bill of particulars on February 22, 1999, b oth requesting various facts and information reg arding all of thecounts ag ainst eachD efendant. On March 24, 1999, the State filed an answer stating that e ach offense in the presentment

occurr ed at the facilitie s at Emman

uel Bap tist

Church, the time of day of eachoffense in the presentment was not known, and the date s of the of

fenses w ere con

tained in the pres entment. With regar

d to Defendant Joseph Combs’s request for “the manner and means that the State relies upon to show the guilt of the Defendant” and the names of “any witnesse s to each specific count of the indictment,” the State responded that this data is “beyond the scope and purpose of a bill of particulars.”

At a subsequent hearing on May 10, 1999, the Defendants requested additional information concerning the nature of the inju ries and which inju

ries wer e associ ated with

what spe cific ch arges

. Pursuant to an order of the trial court, the State filed a second response on July 7, 1999, which listed the typ e of injur

y in flicted, what par

t of the victim’s body

was in volved, and the type of weapon used, with resp ect to the

ninetee n counts a

gainst the Defendants. With regard to count 1, the State provided the following information:

The Stateallege s that ove

r the ent ire per iod of time

that Esther Combs was in custody of the defendants until she left their custody on or about Oct obe r 3, 1997, she was subjectedto b eatin gs, cutt ings, and burning s over al most her e

ntire bod y, a nd said injuries we re ca us ed by v arious items used as weapons, to-wit, but not limited to: rope, ball bats, curling irons, woodburners, brooms and/or sticks, pieces of tin, metal whip device o

btained f rom an umb

rella, w ood shoe, pliers, e lectric al cords , wate r hose, an d other si milar item s.

In another motions hearing on January 28, 2000, the trial court ordered the State to m ak e availab le any “de scriptive information” that existed which would tend to narrow the time frame of the presentment where exac t dates could not be p rovided. On Febr

uary 2, 2000, th

e State supplemen ted i ts prior bill of particulars with data concerning “how the dates of offenses were determined” for all nineteen counts. Concerning count 1, t he State provided the following information: “November 16, 1989 is the approximate time the Combs family moved into Emmanuel Baptist Church in Bristol and October 3, 1997 is the date Joseph Combs allegedly sec reted Esther Combs to keep her from appearing in Court to have a c onservator appointed for her.”

Rule 7(c) of Tennessee’s Rules of Criminal Procedure provides that

“[u]pon motion of the defendant the co ur t m ay direct the filing of a bill of particulars so as to adequa tely identify

the-46-

offen se charged.” The purposes of a bill of particulars are threefold: (1) to provide the def endan t withinformation about the details of the char ge if th is is necessary

to the preparation of the defense, (2) to avoid prejudicial surprise at trial, and (3) to enable the defe ndant to pr

eserve a claim of

double je op ar dy. State v. Byrd , 820 S.W.2d 739, 741 (Tenn. 1991). The Advisory Commission Co mments to Rule 7(c) clearly

state that the bill of particulars provision has a “sing ular pur pose”: to enable the defendant to know precisely w

hat he or she is charged with. I

t is not meant to be used for purposes of broad discovery

. See State v. Stephenson , 878 S.W.2d 530, 5 39 (Tenn . 1994). “ The test i n passing on a motion f

or a bill of particulars is whether it is necessary that the defendant have the information sought in order to prepare his defense and to avoid prejudicial surprise.” Id.

The trial judge in this case ordered the State to supplement the presentment with additional information concerning the charg es against the Defendants. As a re sult, the Defendants were provided with fac ts concerning the place the cr imes were committed, the injuries sustained by the victim, the weapon s used, and the times the crime were committed. With regard to count 1 ( the charge of especially

aggravated

kidnapping), we find

that the Defendants had sufficient information to p repare their defense for this crime and also avoid prejudicial surpr ise at trial. The trial court stated that the rules of discovery required the State to be as specific as possibl e and inform ed the Defend ants that, if

evidence subsequently

presented at trial indicated “overrea ching by the District Attorney,” the court would consider suppressing the evidence at that time. This situa tion did not arise. Moreover, nei th er Defendant points to any specific evidence withheld by the State which unduly surprised them at trial, and neither Defendant has provided

this Court with any example of how or why

their defense was prejudiced by a lack of details concerning any of the crimes charged.

The Defendants argue that the State not

only failed to proper

ly alleg e which specific acts or injuries initiated the unlawful confine ment or c aused se

rious bodi ly in

jury to the vic tim, but it a

lso failedto prove t

hese all egatio ns at tria

l. With reg ard to whether these specific facts must be alleged i n an indict

me nt or presentment, we note that we have alrea dy determined, supra , that the presentment

for this of

fense w as sufficient unde

r the prin ciples se t forth in State v. H

ill , 954 S.W.2d 725, 727 (Tenn. 1997). Moreover, because our supre me court has held that kidnapping offenses are continuing offenses, Stat e v. Legg , 9 S.W.3d 111, 118 (Tenn. 1999), a conviction of kidnapping does notrequire

that the d

efenda nt a ct ua ll y took part in the initial removal or confinement. State v. Anthony Perry , No. W1999-01370-CCA-R3-CD, 2001 WL 792627 at *7 n.2, Shelby County (Tenn. Crim. App., Jackson, July 13, 2001), no perm. to app. filed . Thus, it is not necessary to allege or prove that either Def

endant committed a specific act which constituted the commenceme nt of the crime. As for whether theevidence w as sufficient to sustain the convictions for the offense of especia lly aggr avated k idnapping , we disc uss this issu e in gre ater de ta il later in

this opinion. For now, we mere

ly observe that a co nviction f

or especially

aggr avated k idnapping in this case requires that the State prove false imprisonment “[w]here the victim suffer serious bodily injury.” SeeTenn. Code Ann. §§ 39-13-305(a)(1)(4), -302 (199 7); see also State v. A dams , 24 S.W.3d 289, 291 (Tenn. 2000) (where the conviction was for a continuing offense (aggr avated child abuse through neg lect), the jury need not u

nanimousl

y agree as to the p articula

r seriou s bodily

injury it used to support the conviction). The plain

langua ge of th e statute indicate s that the S tate is not required to prove the Defend ants actually

inflicted serious bodily injury , only that the victim suffere d such injury during-47-

the unlawful confine ment. See State v. Paul Lee Whited , No. M1998 -004 78-CC A-R3 -CD, 1999 W L 1209786 at ** 8, Sm it h C ou nt y, (Tenn. Crim. App., Nashville, Dec. 17, 1999), no perm. t o app. filed (where th e s ta te pr es en te d “ no pr oo f t ha t [ th e v ic ti m] su st ai ne d s er io us bo di ly i nj ur y during an unlawful confinement

. . . the ev

idence w as insuff

icient to s upport the

convicti on for es pecially aggravated kidnapping ” (emphasis in original)).

Fi na ll y, the Defendants also contend that a bill of particulars was necessary because the presentment failed to inform them of thedegree of responsibility against which

they must defend, i.e., whether they

were charged a s principal actors or as aiders/abettors. This arg ument has no merit. The present

ments in thi s case clearly

stated that each Defendant was “a party to the offense.” Even if this language could be considered vague or misleading, we note that ne ither Defendant complaine d of confusion or that clarification was necessar y in order to prepare their defense prior to trial. See Tenn. R. Crim. P. 12(b)(2) & (f).

In summation, we conclude that the present me nt in this case, along with the supplemental information contained in the two bills of particulars provided by the State, supplied the Defe ndants withsufficie

nt informa

tion about

the deta ils of the charg e of especially aggr avated k idnapping to enable them to adequately pr

epare their defense, avoid prejudicia l surprise at trial, and preserve a claim of double jeopardy . Accordingly , the Defendants are not entitled to relief on this issue.

IV. Evidence of Prior Bad Acts

The Defend ants also

jointly argue

that the trial court erred by

allowing evidence of prior bad acts and other cr iminal ac tivity

allege dly committed

by t he Defe ndants to be admitted as evidence at trial. The Defendants contend that this evidence was not releva nt and, further, that

any probative value was outweighed by the danger of unfair prejudice

. The State acknowledg es that a signific ant portio n of the pr oof in issue here was “outside the scope of the ind

ictment[s].”

Howeve r, the Sta te submits that the evidence of the Defendants’ prior conduct was p roperly

admitted t

o show the

Defend ants’ “g

uilty knowledg e” and to

“tell the complete story.” The State asserts that both are proper foundations for a llowing evidence of pr ior bad a cts under Rule 404(b) of Tennessee’s Rules of Evidence. The State points out that the evidence was admitted only after

an exhaustive two-day he aring, during which the trial court heard arguments by bothparties and c o nscientio usly reviewed the enti

re body of evide nce in que stion prior

to its presentation to the jury.

In the case sub judice , the Def endants s pecific ally

object to the trial court’s admission of the following evidenc e: photog raphs of scars on Esth er’s bod

y; photogr

aphs of th

e Combs’ ho me in Indiana; the victim’s testimony concerning various injuries inflicted by the Def endants, both prior to and w i thin the tim

e frame stated in t

he prese ntment; and the testimonies of Gay land Oak s, Malinda Oaks, Kelly Rose Wood, and Dr . Gretel Harlan.-48-

The record reflects that photogra phs of the many scar s on Esther’s body we re introduced as evidence during the testimony of D etective McCauley . The Defendants objected on the ground that most of the scars depicted were not associated with specific counts in the presentment. In a jury -out discussi on, the trial court noted that EMT personnel, nurses at the hospital, and Dr. Steifel ha d previous ly

testified th at th ey h ad obser ved my riad sca rs on Esthe

r’s body , and witnesses ha d also testified as to the Defendants’ explanations for the scars, to wit: Est her “fell a lot,” she was “clumsy,” et cetera. The trial court ultimately overruled the Defendants’ objection, concluding that the photographs were admissible to show theDefendants’ knowledge of Esther ’s injuries and/or a continuin g cour se of conduct.
During another

jury -out hea

ring, th e Defe ndants al so argu ed that e

ight photographs of the Combs’ residence in Indiana (Exhi bits 179 through 186), taken y ears after the family had moved,
were not relevant and, thus , inadmissible as evidence at trial. The State responded that the phot ogr aphs were relevant because (1) some of the photog raphs depicted areas where E sther’s injuries occurr ed and (2) th e kidn appin g, a con tinu ing off ense, comme nced i n Indian a, even thou gh the date of the presentment reflects only the period of time that the crime took place in Tennessee. Following argument, the trial cou rt decla red the p hotogra phs admiss ible to sho w the “c omplete story,” which is helpful when “pr io r crimes and the present alleged c rimes are logically

related or connected

or part o f the same

transaction . . . or

necessa ry for a co mplete ac count th ereo f.” The court remarked that a “Rule 404(b) hearing ” was not nece ssary because the photog

raphs sho wed only the residence in Indiana

and did not reveal any

criminal acts.
During the testimony of the victim, Esther Com bs, the Defendants objected when the prosecutor asked what sort of punishment Esther usually suffer ed when she failed to complete her chores. At this time, the jury was excused and a Rule 404( b) hearing commence d d uring which Esther Combs gave a detailed account of the injuries and abuse she experienced while the Combs lived in Indiana, Florida, the tra iler, and Tennessee. The hearing spanned nearly two days. When Esther completed her testimony regarding I ndiana, the trial court

evaluated each allege d incident and decided that not a

ll of them h ad been

proved b y c lear an d convinc ing evid ence. F or th ose that
success fully

met this burden, the trial court found Esther’s testimony concer ning the m admissibl e under two theories: (1) to prove absence of mistake or ac cident, under the “guilty knowledg e ” exception to Rule 404(b), and (2) to p rovide the “complete story ” regarding conf inement, an essential element

of the continuing offense of kidnapping. The trial court further concluded that the prejudicial effect of the evidence it deemed admissible was outweighed by the probative value. At the conclusion of

Esther’s testimony reg arding incidents which occurred in F lorida, the trailer, and Tennessee, the trial

court ma de deter minations s imilar to those made for the evidence concer ning Indiana, evaluating each episode to determine ( 1) whether a material issue was involved and the evidence was relevant, (2) whether the probative value of such evidence outweighe d the prejudicial effect, and (3) whether each act was established by clear and convincing evidence . The trial court deemed a signif icant amount of Esther’s testimony inadmissible, for va rious reasons, which were stated in the record.-49-

Defend ants also objected to the testimony of Ga yland Oaks (c oncerning events that occurre d in Florida ) on the g round tha t the evid ence wa s not rele

vant and a

lso not adm

issib le under R ule 404(b). Following a jury -out hearing to review the proposed testimony , the trial court concluded that
some of the evid ence was admissible, i.e., it was material and relevant, and the probative value outweighed

any prejudicia

l effect. Specifically , the court found Oaks’ test imony concerning

Esther’s treatment as a “servant,” the methods by whi ch she was “sequestered” (or “ke pt away fr

om the world”), her “clumsiness” or lack thereof, Joseph Combs’ statements about spank ing, and Esther’s physical appearance, was admissible to show confinement and a continuing course of conduct. The court al so found so me of the testimony inadmissible, based on the possibility of unfair prejudice

. The Defend ants additionally requested a jury -out hearing to review the testimony of Malinda Oaks prior to its introduction at trial. The Defendants stated that their request was based “on th e sameline of objection s as [they] had previously [with respect to Gayland Oa ks].” Following the hearin g, the trial cou

rt ruled t hat Malind a’s testimony

would be admissible if limited to the following genera l areas: baby sitting th

e Combs ch

ildren, E sther’s a

ppeara nce and injuries, and her d

esire to teachEsther to write. The trial court found her testimony

relating to certa in other ma

tters pote ntially prejudicial and, thus, inadmissible. Thereafter, Malinda testified within the parameter s set forth by the trial judge, with one objection by defense counsel for hearsay testimony.
During the testim

ony of Kelly Rose Wood, t

he Defe ndants obj e c ted. The jury wa s subseque ntly excused, and the trial court reviewed Woods’ testimony to determine i ts potenti al prejudicial effect under the balancing test in Rule 403 of Tennessee’s Rules of Eviden ce. At the conclusion of the hearing, the trial judge pr ohibi ted ce rtain testimony, but found the testimony concerning her babysitting experiences, her observations of Esther’s injuries, and other r elated matter s were a

dmissible. When the ju

ry returne d, Wood test

ified as instructe d and no ob jectio n s were heard from any

parties during the examinations which ensued.
Later, when Dr. Gretel Harlan testifi ed concerning her examination of Esther and the four d iagra ms she produced (showing the location of the 410 discre te scars on Esther’s body ), t h e Defend ants objected again. I n the presence of the jury , but no t withi n its hear ing, the Defend ants specific ally

argue d that the

proof co ncernin g most of the scars was not relevant because the underlying

injuries h ad not bee

n associa ted with a ny s pecific

charg e aga

inst either Defendant. The trial court overruled the objection, findingthe testimony relevant ba sed on the State’s theory that the confinement of Esther was a continuing offe nse.
A. Admis sibility Unde r Rule 404 (b)

Resol utio n of this issue is controlled, in part, by Rule 404(b) of Tennessee’s Rules of Evidenc e, which

provides : Other Crimes, Wrongs, or Acts.--Evidence of other crimes, wrongs, or acts is not admissible to prove the ch aracter o f a pers on in orde r to show a

ction in-50-

conform ity with the character trai t. I t may, however , be admissible for other purposes

. The conditions which must be satisfiedbefore allowing such evidence are:
(1) The court upon request must hold a hearing outside the jur y's pr esence; (2) The court must determine that a material issue exists other than conduct conforming with a chara cter trait and must upon request state on the record the material issue, the ruling, and the reasons for a dmitting the evidence; and
(3) The court must exclude the evide nce if its probative value is outweighed by the dang er of unfair prejudice.

In State v. Bigbee , 885 S.W.2d 797 (Tenn. 1994), the supreme court strongly endorsed the above protective procedures to avoid prejudicing the rights of the accused and to maintain the focus of the trial. Id. at 806. It is we ll-settl ed that evidence of a def endant’ s prior mis conduct i s inadmissib le to esta

blish the a

ccused’ s bad cha

racter or crimin al prope

nsity and should

usually be excluded. State v. Mallard , 40 S.W.3d 473, 4 80 (Tenn . 2000); see Tenn. R. Evid. 404(b). However, in the exceptional case where evidence of other crimes, wrongs, or acts is rele vant to an issue other than the accused’s character, it is admissible if cer tain criteria are met and

the trial court ad heres to the procedu

res set f orth in Rule

404(b). I ssues to wh

ich evide nce of ot her cri mes, wrongs or ba

d acts may be relevant ty

pically include identity , motive, common scheme or plan, intent or

the rebuttal of accident or mistake defenses. State v. H all , 958 S.W.2d 679, 707 (Tenn. 1997).
First, upon the request of either party , Rule 404(b) requires the trial court to hold a hearing outside the jury’s pre sence to determine whether “a mater ial issue exists othe r th an conduct conforming with a cha

racter trait.” Tenn. R. Evid. 404(b) (1), (2) . This sat isfies the relevancy requirement. If this test is satisfied, the trial judge should state on the record the is sue, t he rul ing, and the reason for rulingthe evidence admissible. Id. at 404(b)(2). Second, subsection (3) states that the trial court must determine whether the probative value of the evidence outweighs the dang er of unfair prejudice to the defendant. This test is more restrictive that the balancing test established for relevancy in Rule 403. See id. at 403 (requiring that the danger of unfair prejud ice substanti ally outwe igh the probative value). Third, the trial court must find by clear

and convincing evidence that the defend ant committed the specific act offered under Rule 404( b). Id. at 404(b), Advisory Commission Comments; State v. Parton , 694 S.W.2d 299, 303 (Tenn . 1985 ) (cit ing Wrather v . State , 169 S.W.2d 854 (1943)).

Before we begin our analy sis of the issues presented here, we observe that the admiss ibility of evidence is a matter within the discretion of the trial court and

will be overturned only w hen there is an abuse of tha

t di scretion. Otis v. Cambridge Mut. Fire I ns. Co. , 850 S.W.2d 439, 442 (Tenn.1993) (citatio ns omitted) ; State v. H arris , 839 S.W.2d 54, 66 (Ten n. 1992). However, de cisions of the trial court regarding admissibility of Rule 404(b) evidence sha ll be afforded no deference on appea

l unless the

trial cou rt has sub stantiall

y c omplied with the stri c t procedural require ments of that rule. State v. D uBose , 953 S.W.2d 649, 652 (Tenn. 1997) (the standard for-51-

review is abu se of d iscre tion where a dmis sibi lity pro cedure s conc ernin g t he proffered evidence comply with Rule

404(b); w

here the trial cou rt did not f

ully comply with the r

equisite p rocedur es, the reviewing cour

t must indep endently

determin e admissib ili ty, based upon the record and evidence present ed at the jury -out hea

ring). Becau se the te

rm “discr etion” e ssentiall

y “denotes the absence of a hard and fast rule,” a trial court’s decision to admit ev

idence will be rev ersed on appeal “ only when the ‘court applied an incorrect leg al standard, or reached a dec ision which is against logic or reasoning that caused

an injustice to the party c omplaining.’” State v. Gilliland , 22 S.W.3d 266, 271 (Tenn. 2000) (citations omitted).

In the case sub judice , the trial court di d not con duct Rule 404(b) hearings to determine adm issibility

for all of the evidence presented in this arg ument. Our review reveals that a 404(b ) hearing would not have beenproper in every case. Nor did the Defendants request one. I n fact, the record reflects that a 404(b) analysis was requested and/or conducted only to re

view the testimonies of Esther, Gayla

nd Oaks, and Malinda Oaks. Thus, our review under the Rule 404(b) guidelines for admissibility of other crimes, wrong s, and acts is limited to this proof.
First, we conclude that Esther’s testimony concerning the abuse and inju ries she suffered wh ile the Co mbs lived in Indiana, Florida, the trailer , and Tennessee, was not inadmissible under Rule 404(b). The Defendants argue, a nd the State concedes, that the testimony in issue relates to acts which either o ccurre d prior to the time frames alleged in the presentment and/or were not associated withany specif

ic criminal charge. Howeve r, the recor d refle cts th at the tri al court “substan tially complied” with the procedu ral req uiremen ts for ad mitting e vidence of other crimes, w

rongs, or acts under Tennessee Rule of Evidence 404 (b). Th at is, the tr ial co urt co nduct ed a 40 4(b) h earing, outside the presen ce o f the jury, to consider whether this evidence violated Rule 404's ge neral proscription against character evide nce. The proceeding continued for near ly twoday s. During

this time, the trial court evaluated each incident describe d by the victim to determine whethe r a material is sue existed othe

r than co nduct con

forming with a cha

racter trait and whether the evid ence wa s relevant to the issue. The court also reviewed the evidence to determine whether the probative va lue
was outweighed by

the danger of unfair pr

ejudice, a nd whether it was established by clear and convincing evidenc e. The iss ues, ruli ngs, and reasons for admitting the evidence wer e then placed on the record.

Si gn if ic an tl y, the trial court excluded a substantial portion of Esther’s testimony on various ground s, which included findings that the acts allegedly committed by the

Defend ants were not provedby clear

and convincing evidence and/or the pr obative value was outweighed by the danger of unfair prejudice. The

testimony ultimately

admitted at trial was dee

med rele vant as f ollows: wit

h regard to th e espec iall y aggravated kidn appin g charge agains t both Def endants, Esther’s testimony
was deemed admissible to provide the “complete story” concerning confinement, an essent ial element of the continuing offense of kidnapping. As to the child abuse cha rges against Evang eline Combs and th

e assaul t charg es aga

inst both De

fendant s, her testimony

was cons idered r

elevant to show absence of mistake or accident, under the “guilty knowle dge” exception to Rule 404(b). The record further reveal s that the t

rial cou rt gave explicit and extensive

instructi ons to the jury

as to how it should con sider the

evidenc e, e.g ., to whic h Defen dant and t o which charge s the jury should-52-

allocate the information received. Because the trial court was dilige nt in its strict adherence to the requi rements provided for this evidence, its decisions concerning the admissibility of the Rule 404(b ) evidence shall be reviewed under an abuse of discr etion standard. See DuBose , 953 S.W.2d at 652.

The trial court found Esther’s testimony a dm issible on the ground that it provided background

evidence; it was helpful to convey the “complete story ” of Esther’s confinement, an essential element in the cha rge of espec ially ag gravated kidnapping. Evidence offered to show contextual backg

round may

be admiss ible, eve

n if it involves evidence of a def endant’ s prior a

cts, in cases where the evidence is re levant to an issue other

than criminal propensity and its probative value is not outweighed by the dange r of unfair prejudice. Gilliland , 22 S.W.3d at 271. The stan dar d by which a c ourt determines relevance is set forth in Rule 401 of Tennessee’s Rules of Evidence (evidenceis releva nt if it has “any tende

ncy to make the e

xistence of any fact that is of consequenceto the determination of the action more probable or less probable then it would be withoutthe evidence”). Although this thres hold for ad mitting evidence is “relatively lenient,” background

evidence used

to show the context of

events ma

y not alway s pass eve

n this low th

reshold of admission b ecause

it is rare ly probative of an actual material issue at trial. Id. While the standard under which ba ckground evide

nce involving othe

r crimes , wrongs , or actswill be admiss ible shoul d be “narro wly

drawn to avoid the negati ve implica

tions asso ciated with criminal propensity evidenc e, the standardshould not be so narrow as to sacrifice the jury ’s un ders tand

ing o f the nece ssar y c onte xt of the case.” Id. at 272. Accordingly , our supreme court has held that, in cases where the state seeks to offer evidence of other cr imes, wrongs, or acts that are relev a nt only to provide a contextual background, t he state must first establish that (1) the absence of the evidence would create a chronologicalor conceptual void in its presentationof its case; (2) the void created by the lack of such evidenc e would lik

ely result in significant jury c onfusion as to the material issues or evidence in the cas e; and (3) the proba tive valu e of the e

vidence is not outwe

ighed b y th

e dang er of unf

air prejudice. Id.

The crit eria for admitting contextual background evidence w ere satisfied in this case. Cl ea rl y, the beatings and abuse inflicted upon Esther over the course of her life could be considered probative of the Defendants’ attempt to confine and maintain control over her. With out k nowle dge of her life’s experiences and t he abuse which be gan wit

h her ea rliest memories, the jury may

have had difficul

ty u ndersta nding the reasons for her submissiveness and reluctance to escape when opportunities to do so p resented themselves. Whether the y ears of phy sical and psycholog ical torture endured by Esther ena

bled the Defend ants to accom plish the c rime of f alse impr isonment w as a matter for the jury to decide. Without this evidence, a conce ptual void might be create d which c ould likel y result in j ury

confusion as to the

materia l issues or

evidenc e prese

nted by the St ate. Th e probative value of this evidenceis considerable, and we find that it is not outweighed by the danger of unfair prejudice to the Defendants.

Admissibility

of the contextual background evidence in this case is supported by the fact that kidnapping statutes a

re desig ned to pun

ish a cont inuing c ourse of

conduct. Stat e v. Legg , 9 S.W.3d 111, 117 (Tenn. 1999) . Thus, by de finition, c onduct wh ich prove s this offe

nse cannot be strictly limited, as a matter of law, but must be de

termined in accordance with the circumstance s presented-53-

in each case. Here, the fa

lse imprisonment element of the kidnapping charge did not commenc e with a single event, a s would oc cur with a victim who was snatched

from a car or taken hostage during
a crime. Ra

ther, it w as estab lished by proof tha

t the vic tim suf

fered y ears of phy sical and psychologic al torture, which makes relevant the proof of other acts committed by the

Defend ants to accompl ish the co nfineme

nt.

As previously noted, evidenc e of other crimes may be admissible to show identity, motive,
common s cheme or plan, intent, guilty knowledge or the absence of accident or mistake. State v. Hall , 958 S.W.2d 67 9, 707 (Te nn. 1997) ; Collard v. State , 526 S.W.2d 112, 114 (Tenn.1975). On the question o f intent, p

roof concerning

the rela tio ns which e xisted between a defendant and the victi m of a crime of violence may present relevant matters for the jury ’s consideration. See Stat e v. Turnbill , 640 S.W.2d 4 0, 47 (Te nn. Crim. App. 1982 ); State v. Glebock , 616 S.W.2d 897, 905-06 (Tenn. Crim. App. 1981). Here, evidence of the Def endants’ continued h ostility an d abusive behavior toward Esther is relevant to demonstrate their intent to confine or imprison her. In addition, this proof demonstrates the Defendan t s’ guilty knowledg e that the

ir action s caused

serious b odily injury, and rebuts any

notion that the systematic, long-te rmabuse of the victim was an accident or mistake.

The Defend ants argue that the presentation of rebuttal e vidence to show “guilty knowle dge”
wa s not prope

r becau se neithe

r Defendant had c laimed tha t Esther’ s injurieswere a n accide nt. However, Defend ant J oseph Comb s clai med th at he n ever ha rmed E sther and ha d no kn owled ge of her scars, and Evangeline Combs was char ged withmultiple counts of aggravated child abuse . A person commits the offense of aggra vated child abuse who “knowingly , other th a n by accidental
means , treats a c hi ld un de r e ig ht ee n ( 18 ) ye ar s o f a ge in su ch a m an ne r a s t o i nf li ct in ju ry . . .” and “[t]he act of a

buse res ults in serious bodily injury to the child.” Tenn. Code Ann. §§ 39-15-401, 402 (1997) (emphas is added) . Conseque ntly , proof th at the Defendant s injured Esther knowingly , which clearly infers non-accidental

conduct, was nece ssary and pr oper to both rebut the testimony of Joseph Combs and assist in proving the offense of aggra vated child abuse.

O ur review o f the test

imonies of

Gay land and M alinda Oa

ks revea ls that this proof is a

ls o a dmissible

to show confinement and a continuing course of conduc t on grounds similar to tho s e discussed above. Therefore, we find no abuse of discretion or error with reg ard to the trial court’s decisions to admit the evidence of other crimes, wrong s, or acts in this case.
B. Admissibility Under Rules 401 and 403

The Defendants also contend that the trial court er red by admitting

two sets of photographs
as evidence at trial. The

phot ograph s in i ssue d o not speci fical ly concern prior bad act s, wro ngs or criminal activity by

either Defendant, and, in the case of Esthe r’s scars, the photographs do not show the identity of the person who caused her injur ies. Thus, this evidence was not inadmissible under Rule 404 (b) as refl ecting upon the character of the Defendants, and no 404(b) hearing s were conducted

prior to admitting this proof. See DuBose , 953 S.W.2d at 653 (where medical examiner’s testimonydid not show identity of the person who ca used the victim’s abdominal injuries, it was not-54-

prohibited by Rule 404(b) as re flecting uponthe defe

ndant’s c haract er). Rat her, adm issibility of this evidence is dependent upon the principles set forth in our rules of evidence reg arding relevance. See Tenn. R. Evid. 401- 403.

Rule 401 of Tennessee’s Rules of Evidence defines r elevant evidenc e to m ean “evidence having any tendency

to make the existence of any fact that is of

consequence to the determination of the actio n more pr

obable or less probable than it would be without the evidence.” Rule 402 states that releva nt evidence is admissible, except as provided by our State a nd Federal Constitutions, and,
co nv er se ly, irrelevant evidence, ipso facto , is not admissible. Tenn. R. Evid. 402. Rule 403 requires exclusion of evidence, even when relevant, if the “probative value is substantially outweighed

by the danger of unfair prejudice, confusion of the issues, or misleading the jury , or by considera tions of undue delay, w aste of time, or needless presentation of cumulative evidenc e.” Id. at 403.
With these principles in mind, we find the photographs of the scars on Esther’s body we re clearly admissible. Given that the Defendants were char ged with various counts involving physical abuse and/or se

rious bodi ly in

jury , the cond

ition of Es th er’s body is inordinately relevant. The photographs are further relevant to demonstrate the D efendants’ “guilty knowledg e” of Esther’s in juri es, effec tively

rebutting any claim of a

ccident or mistake , and they

showed th

e Defe ndants’ intentto control and/or confine Esther through phy sical and, to a lesser extent, psychological torture. In addition, the sheer magnitude of Esther’s injuries, disclosed by proof of more than 400 separa

te scars, indic ated

a con tinui ng c ours e of a

busiv e con duct . Wealso find that the probative value of this evidence is not substantially outweighed by the dange

r of unfa ir prejud ice, con fusion of the issue s, or other ne gative

consider ations whi ch would

require the trial court to exclude it under the principles set forth in Rule 403 of Tennessee’s Rules of Evidence.

The Defendants argue

that the issue concerning this evidence is analogous to that presented in State v. Copenny , 888 S.W.2d 450 (Tenn. Crim. App. 1993), where proof of several prior scars
on the victim’s body was prope rl y e xcluded under Rule 403 because the probative value was outweighed

by t he potent ial for un fair pre ju di ce , c on fu si on of

th e i ss ue s, an d m is le ad in g t he ju ry. However, in Copenny , the defe ndant cla imed to have shot the victim in self-defense, and he sought to use proof

of the victim’s prior scars to demonstrate the victim’s propensity for violence. Since
we find no correlation between the circumstance s and issues presented here and those in Copenny , the Defendants’ reliance on this case is misplace d.
Turning to the eight photographs of the Combs’ I ndiana home, we find one phot ograph showed a view of the entire front of the house; five revealed different a ngles of an interior staircase; and the remaining two showed a small area inside of the house and a window, with a few chairs
ne ar by. The photo graph s, taken som etime in 19 99, showe d the Combs’ residence appr oximately thirteen yearsafter they

had lived there. The State argued that the photog raphs were relevant

(1) to portray an area where Esther’s injuriesoccurred and (2) bec ause the

kidnapping comme

nced whi le the family lived the re. The trial cou rt decid ed that the photog

raphs would helpthe jury comprehe nd the “complete story.”

Esther testifiedat trial that she was injured onthe stair way in the phot

ographs. Therefore, we agree that the five photog raphs of the staircase were re levant to show where one-55-

particular injury oc curred. As for the others, we fail to see how the photographs of the

exterior of the house and the area in front of a window possess any relevancy , namely, any

tendency to make the existence of any fa

ct of consequence to the determination of the action m ore prob able or l ess probable than it otherwise would have been. See Tenn. R. Evid. 401. For the same reasons we find
no evidentiary r

elevance, we also find

the danger of unfair prejudice caused by the admission of these three photographs into evidence to be nil. Thus, the admission of this evidence, while error,
was neverth

eless ha rmless be cause it

could not have affected the result of the trial on the merits. See Tenn. R. Cr

im. P. 52(a

); see also Tenn. R. App. P. 36(b).

The admissibility of the testimonies of Kelly Rose Wood and Dr. Gretel H arlan a re likew ise dependent

on their relevance u nder Rule s 401 through 403. As for Wood’s testimony, the r ecord reveal s that a jury-out hea ring was conducted beforeha nd. During the proc eeding, the trial court found certain testimony inadmissible under Rule 404, on the g round that it suggested a crime had been committed by one or both Def endants but it had not been established by clear and convincing
e vid ence. By contr

ast, the court found relevant and admissible the testimony concerning Wood’s ba bys itting experiences in Fl orida, he r observ ations co ncernin g Esthe r’s injur ies, Esthe r’s lack o f clumsines s and the fact that the Defendants treate d Esther differently than the other children. In our opinion, Wood’s testimony is relevant, under Rule 401, to show a continuing course of conduct and corrobo rate Esther’s testimony, and we find the probative value is not outweighed by the danger

of unfair prejudice, confusion of the issues, or any of the other negative

consider ations list ed in Rule 403 which wou

ld mandat e exclusio n. Rega

rding th e testimon

y of Dr. Gre tel Harl an, we a

gree with the trial court that it was relevant to show a continuing offense. Dr. Harlan’stestimony concerning the extent of Esther’s injuries was also relevant to show serious bodily injury, and we

find that the probative value of her testimony substantially outweighe d the danger of unfair prejudice

. With the exception of the three photographs which we deemed were admitted

er ro ne ou sl y, albeit harmless, we conclude that the evidence wa s admissible under the rules of evidence discussed. The Defendants are not entitled to relief on this issue.
V. Sufficiency of the Evidence

Both Defend ants cont

end that t he evide nce wasinsuffic ient to sustain their convictions for especia lly aggravated kidnapping . Defendant Joseph Combs further contends that the evidence was insufficient

to su stain h is con

victi ons f or ag gra vate d rap e, ra

pe, a nd ag gra vate d per jury . We disagree.

When evidentiary suffic iency is questioned on appe al, the standard of review is whether, a fter considering all the evidence in the light most favorable to the State, any rational trie

r of fact could have found all

the essential elements of the offense bey ond a reasonable doubt. Jackson v. V irginia
, 443 U.S . 30 7, 3 18- 319 , 99 S. Ct . 27 81, 278 9, 6 1 L. Ed. 2d 560 ( 1979); State v. Hall , 8 S.W.3d 593, 59 9 (Tenn. 1 999); see Tenn. R. App. P. 13(e). “This rule applies to findings of guilt based upon direct evidence, circumstantial evidence, or a combination of direct and circumstantial evidence.”-56-

Statev. Lewis , 36 S.W.3d 88, 93 (Tenn . Cri m. App . 2000 ) (cit ing State v. Dykes , 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990)).

In determining the sufficiency of the evidence, we wil l not reweigh the evide nce or su bstitute
our own inferences for those drawn by the trier of fact. See State v. She ffield , 676 S.W.2d 542, 547 (Tenn. 1984); Stat e v. Ca bbage , 571 S.W.2d 832, 835 (Tenn. 1978). Instead, on appeal the State is entitled to the stro ngest le gitimate view of th e eviden ce and to all reas onable a

nd legit imate inferences that may be dra wn therefrom. Hall , 8 S.W.3d at 599. A guilty verdict by a jury, appr

oved by the trial court, accredits the testimony of the witnesses for the State and resolve s all conf

licts in favor of the pr os ec ut io n’ s t he or y, effectively removing the presumption of innocence and re placing it with a presumption of guilt. See Statev. Bland , 958 S.W.2d 651, 659 (Tenn. 1997). Questions concerning the cre dibility of witnesses, the weight and value of evidence, and factual issues raised by the evidence are matters to be resolved by the trier of fact, not this Court. Id. The defendant bears the burden o f demonst rating that the e vidence is insufficient to support his or her conviction. St ate v. Pike , 978 S.W.2d 9 04, 914 (T enn. 1998 ); State v. Tu ggle , 639 S.W.2d 913, 914 (Tenn. 1982).
A. Especia

lly Aggra vated Ki dnapping

To obtain a c onviction

for especially

aggr avated k idnapping , as rele

vant her e, the Sta te must prove: (1) the defendant knowingly removed o r confin ed the victim unlawfully so as to interfe re substantia lly with her liberty; and (2) the victim suffered serious bodily injury. See Tenn. Code Ann. §§ 39-13-305(a)(4), 39-13-302(a) (1997). “Serious bodily injury ” means bodily injury

that involves
a substantia

l risk of de ath; protr

acted unconsciou sness; extr eme physical pain; protracted or obvious disfigu rement; or protracted

loss or substantial impairment of a function of a bodily member, org an, or mental faculty. See id. § 39-11-1 06(a)( 34). With re spect to r emoval or confine ment, “unlawf

ul”
means “one which is accomplished by force, threat, or fraud, or, in the case of a person who is under the age of thirteen (13) or incompete nt, accomplished without the consent of a parent, guardian

or other person responsible for the gene ral supervision of the minor’s or incompetent’s welfare.” Id. § 39-13-301(2).

The Defendants argue that the convictions cannot stand bec ause the

Statefailed to prove that the Defend ants “co nfined” Esth er or tha t any confineme nt was “unlawful.” According to the Defend ants, the presentment alleged that they “continuously

” confined Esther from April 30, 1990 throu gh October 3, 1997. The Defendants point out that Esther ran away twice, but

returne d home of her own volitio n the sec ond time, a nd that she

also aske d to retur

n home af

ter her sta y in th e hospital. Th e Defe ndants contend that, because these events “broke the continuity of any

alleged unlawful confinement,” an essential element of the kidnapping charge remains unproven.
In support of this argument, De fendants cite Statev. Paul Lee Whited , No. M1998-00478- CCA-R3-CD, 1999 WL 1209786, Smith County, (Tenn. Crim. App., Nashville, Dec. 17, 1999) no perm to app. filed . In Whited , the proof showed that the defendant had unlawfully confined the victim by l ocking

her in a c loset on va

rious occ asions. Th

e proof a lso reve aled tha

t the victim-57-

suffered serious bodily injury , but it failed to show that the victim sustained the injuries during the confine ment. Id. at **7. The State theorized (1) that the defendant unlawfully confined the victim forthe entire six month period preceding her death by controlling her money , governing he r foo d intake, and by cursing , beating, and humiliating her; and (2) that the victim sustained serious b odily injury during this time. A panel of thi s Cou rt deci ded th at, al thou gh the defendant’s conduct toward the victim was cruel and despicable, the state had presented

no proof t

hat the de fendant phy sically restrained the victim’s freedom of movement for the entire six month period, or that the victim had felt “mentally restra

ined” by any

force, threat, or fraud on the par t of the defendant during that time. Id. at **8 . Alt hough the proof of serious bodily injury

was undeniable (in fact, the victim died as
a result of injuries inflicted

by t he defe ndant), t his C ou rt modifie d the conv iction fr om espec ially aggravated kidnapping

to false imprisonment. See id. at **9.

The circumstances in Whited are distinguishable from those presented in the case sub judice

. As previously noted, the ele ment of false imprisonment in Whited was proved by evidence that the defendant confined the victim by

locking her in a closet. Here, the De fendants confined Esther by restraining her inside of a house for ye ars, dur

ing whic h time she s uffere d seriousbodily in ju ry. In Whited , the vi c tim was dead, and, thus, proof in the form of the victim’s testimony could not be offered. In the

case sub judice , the testimony of the victim ga ve the State an opportunity to prove confinement

in a much b

roader sense tha n that pre sented in Whited , where the state showed only that the victim was locked in a closet on one or more occasions.

In addition, the victim in Whited left t he defendant’s home (where the victim re sided) on
numerous occasions. Sometimes the defendant was home when she left, an d other tim

es he wa s not. Sometimes, the victim

would be a

lone in th e h ou se fo r a n e nt ir e d ay. Here, the proof indicated that Esther had no similar freedom of movement. Esther testified that she was restricted to her room on
more than on e occas i on. The punishment for disobedience took the form of beatings a nd other torture, and Evangeline Combs placed powder outside of he r door to ascertain whether she had obeyed. Esther

testified that she had never been allowed to visit other children or go any where or do any thing wit hout Evan geline , Joseph, or a sibling present

. No visitors were permitted inside the Combs residence when they lived at EBC. Esther furt her clai med that both Defendants had repeat edly informed her over the course of her life that her “purpose” was to be a servant in the Co mbs f amily. On those occa sions when she did not perform this function properly , she was punished severely . In addition to not being able to rea d or write well, Esther

did not poss ess a driver’s license , a Social

Security number, or any

other sta ndard fo rm of iden

tificatio n. She wastold by both Defendants that they had adopted her, an intentionalmisrepresentation of the fac ts on their part. Esther had been treated this way as far back as s he could r

emember . Esther’ s testimony as to these facts was corroborated by the testimony of numerous other witnesse s at trial.

From the evidence, taken in the light most favorable to the state, a jury could hav e reaso nably inferred that Esther was confined by force, threat or fraud on

the part of the Defendants. See State
v. Legg , 9 S.W.3d 111, 118 (Tenn. 1999) (“While the appellee argues that [the victim] had a number of opportunities to escape and was therefore not conf ined, this Court will not reweig h or reevaluate the evidenc e prese

nted whe re the evidence

is sufficient for conviction bey ond a reasonable doubt.”).-58-

The evidence indicates that Esther was n ot only

psy cholog ically

and phy sically

beaten into submission, she was also prevent ed from o btaining even the most rudimentary tools for living independ ently in society. Moreover , we reject the Defendants’ ar gument that no confinement was provedbec ause she escaped on three occasions and voluntar ily returned twice . The evidence suggests that she

believed she had no choice in this matter: her third “escape” was the result of an attempt to commit suicide because she “couldn’t take it any more” and “wanted to die.”

Defend ants also argue that any confine ment occurring

prior to Esther’s thirteenth birthday could not be “un

lawful” because

it was not accomplished without the consent of a parent, gua rdian
or other person responsible for the gene ral supervision of the minor’s welfa re, purs uant to the definitio n of “unla

wful” pr ovided in Tenn. Code Ann. § 39- 13-301(2 ) (remov al or con finemen t is unlawful when “a

ccomplish

ed by force, threat, or frau d, or, in th e case o f a pers on who is under the age of thirteen (13) or incompetent, accomplished without the consent of

a parent, guardian or other person responsible for the general super vision of the minor’s or

incompet ent’s we lfare” ). In

their briefs, the Defe

ndants as sert that

t h ey g ave themselves consent to confine Esther, and, afte r she became thirteen yea

rs of age, their status as foster parents conferred upon

them the right to continue to do so “sinc e it i s b y force of law that all parents, guardians or other pe rsons responsible for the general supervision of a

minor’s w elfare

are poss essed of

the powe r to conf ine them. ” Defe

ndants cit e no legal support for this proposition, and we find the argume nt without merit. A s the recor d shows, any

“lega l” guar dianship c laimed by

the Defe ndants is a travesty. The

y misreprese

nted their status as Esther’s adoptive parents from the beginning of her life with them, and to believe that they didanything but de

trimentally affect her welfare would go against a considerable w eight of evidence to the contrary

. Moreover, as we discussed supra (in our analysis of the issue concerning amendment of the presentment), the disjunctive t erm “or” in the definition indicates that removal or confinement by force, threat o

r fraud may be unlaw ful, even if a

ccomplish

ed with the consent of a parent, guardia n or other person entrusted with the minor’s care. Esther turne d thirteen yea rs of age on November 16, 1990, which means that the period of confinement (alleg ed in the presentment) while under the age of thirte en laste d approxima tely six and one- half month s and, af ter she tu rned thir teen, it continued for more than six years. The Def endants also maintain that the State failed to prove that Esther’s confinement was accomplished throu gh the use or display of a dea dly weapon. This argument is also without merit, because theconvicti ons in issue here ar e not based upon pro of of this element.
The proo f also sup

ports the jury’s finding

that the victim suffered serious bodily injury during her confinement

. See Tenn. Cod e Ann. §§ 3 9-13-305 (a)(4) . “Seriou s bodily injury” is definedas bodily injury

that involves a substantial ri s k of deat h; protra cted unc onsciousness; extreme ph ys ic al pain; protracted or obvious disfigurement; or protracted loss or substantial impairment

of a function of a bodily

member, organ, or mental faculty

. See id. § 39-11-106(a)(34). According to Esther’s testimony, among other things, she has been choked with a rope un til she lost consciou sness; she was burned, whipped, beaten with a baseball bat, cut, and sewn tog ether without anesthesia; and her

e lbow has been permanently damaged. This is sufficient to prove that her-59-

injuries involved u

nconscio usness, extreme ph

ysi cal pain , protra

cted disf igurem ent, and substantial impairment of a bodily member. The Defendants argue tha t the State was required

to elect which spe cific injuries caused the serious bodily injury in order to sustain a conviction. This is not true where the crime is viewed as a single, continuing c ourse of conduct. See State v. A dams , 24 S.W.3d 289, 2 91 (Tenn. 2000) (“In c ases where the nature of the cha rged offense is meant to punish a continuing course of c o nduct . . . election of offenses is not required beca use the offense is, by definition, a single

offense .”); Legg , 9 S.W.3d at 118 (the offense of agg ravated kidnapping punishes a continuing course of conduct).

In summation, after considering all the evidence in the light most favorable to the State, we believe that any rational trie r of fact could have found that all th e essent ial eleme nts of this o ffense
were proved b ey ond a rea sonable doubt. Thus, we hold that the evidence is sufficient to support the convi ction s of bo th Def endan ts for the of fense o f espec iall y aggravated kidn appin g. B. Aggravated Rape, Rape, and Aggravated Perjury

Defenda ntJoseph Combs c ontends th at the evidence w as also in sufficie nt to sustain his conviction s for a ggravated rape , seven counts of rape, and agg ravated perjury . Concerning the aggravated

rape and rape convictions, he arg ues that the State failed to prove coercion, an essential element of these offenses.

Defendant’s assertion that coercion is an essential element of these offe nses is only

partiall y correct. Proof of f

orce or coerci on to acc omplish the unlawful sexual pe

netratio n of Esth er i s necessary to sustain h

is seven convictions for rape, Tenn. Code Ann. § 39-13-503(a)(1), but not the conviction for aggrava

ted rape. In April 1989 (the date alleged in count

12 of the presentment for the offense of aggr

avated rape), the offense of aggravated ra

pe was defi ned as “unlawful sexual penetration of another” when accompanied by any one of four enumerated circumstance s, including where “[t]he victim is less than thirteen (13) years of a ge.” Tenn. Code Ann. § 39-2-603 (Supp. 1988) (the 1992 Tenn. Pub. Acts, ch. 878, created the current Class A felony offense of “rape of a child,” Tenn. Code Ann. § 39-13-522). Appropriately , count 12 di d not allege that force or coercion was used to accom plish the a

ct. By contras t, counts 13 through 19 alleged that Defendant “did unlawfully , feloniously, and by means of force or

coercion sexually pene

trate Esther A. Combs . . . .” As relevant here, “r ape” is statutorily defined as the “ unlawful sexual penetration of a vict im by the d efendant or of the defendant by

a victim,” and “[f]orce or coercion is used to accomplish the act.” Te nn. Code Ann. § 39-13-503(a)(1) (1991 & 1997). “‘ Coercion’ means thr eat of ki dnapping, extortion, force or violence to be performed immediately or in the future or the use of parental, custodial, or official authority over a child less than fifteen (15) yea rs of age.” Tenn. Code Ann. § 39-13-501(1) (1997).

We find the proof sufficient to sustain the conviction for aggra vate d rape and the seven convictions for rape. As to the former, t he proof clea

rly shows that Esther wa s under the age of-60-

thirteen in April of 1989, and we believe that a ration al ju ry could furthe r find that Defendant sexually penetrated her on that date. The ear liest of the seven cou nts of rape was committed on November

16, 19 90 and the mo st rec ent wa s alle ged to h ave occ urred d uring the s ummer months of 1995. Reg arding

proof of force o r coerc ion as to the rape c ounts, we find th e evidenc e clear

ly sufficient for any r ational jury to find that Defe ndant similarly sexually

penetrat ed Esther on the dates alleged and that , giv en the sub stantial p roof of t he Defe ndant’s a busive tr eatment o f her in gener al, she was acting under the threat of force or coerci on to compl

y w ith Defe

ndant’s d emands.
Regarding the conviction for a g gravated perjury , Defendant contends that it must be reversed because the St at e f ai le d t o p ro ve “m at er ia li ty, ” a n e ss en ti al el em en t o f t he ch ar ge . S pe ci fi ca ll y, he claims that his false statements to the court duri ng the con servato rship pro ceeding

were “ immateria

l” because she had “already left the jurisdiction of the court.”

A person commits the offense of agg ravated perjury

who, with i ntent to deceive: “(1) [c]ommits perjury a s defined in § 39-16-7 02; (2) [t]he false sta tement is made during or in connection with an official proceeding; and (3) [t]he false statement is material.” Tenn. Code Ann. § 39-16-703(a) (1997). Further, “ it is no defense that th e person m istakenly believed the statement to be immaterial .” Id. § 39-16-703(b) (emphasis added). Tennessee Code Annotated section 39-16- 702 provides, in relevant part, that a pe rson comm

its the off ense of p erjury

who, “wit

h intent to deceive, makes a false statement, under oa th.” Id. § 39-16-702(a).

The record reveal s that Defend ant ma de the untru thful state ments concer ning Esthe r’s wherea bouts during the conservatorship proceeding on October 3, 1997. Attorn ey Davi d Tipton, Detective De bb ie Ri ch mo nd -M cC au le y, and Chancellor Richard La dd all testified that Defendant had informed the court, under oath, that he had no knowledg e of Esther’s whereabouts and that he had not se en her in

at least a couple of weeks. Clearly , this was a false statement, made during an official proceeding, which was intended to dec eive t he court. We further find sufficient evidence to support a

jury’s deter

mination that his statements were material. The hearing was convened f or the sole purpose of making decisions concerning Esther’s future. Thus, it was imperative that she be prese nt and her wherea bouts wer e clear ly o f conside

rable imp ort.

To summar

ize, afte r conside ring all the evide

nce in the light most favorable to the State, we conclude that any

rationa l trier of fact could have f

ound all th

e esse ntial element s of the offenses dis cussedbeyond a re asonable doubt. Therefore, the Defe ndants are not entitled to relief o n thi s issue.

VI. Instruction on Lesser-Included Offenses

The Defend ants cont

end that t

he trial c ourt err

ed by faili ng to instruc t the jury on all appropr iate less er-inc luded off

enses of certain offenses charged, as r

equired under State v. Burns , 6 S.W.3d 453 (Tenn. 1999), and State v. Dominy , 6 S.W.3d 472 (Tenn. 1999). The State responds that any lesser- included offenses upon which the tri al court fail ed to instruct the jury either-61-

constituted harmless error, under State v. Will iams , 977 S.W.2d 101 (Tenn. 1998), or failed to satisfy the criteri a

requiring jury

instruction setforth in Burns . With one exception, we agree with the State.
A trial court is required by statute to charge juries as to the law of each offense “included” in an indictment. See Tenn. Code Ann. § 40-18-110 (1997). Our supreme court has interpre ted this pro vi sion to mean that “a trial court must instruct the jury on all lesser-included offenses if the evidence introduced at

trial is legally suff

icient to support a conviction for the lesser offense.” State
v. Burns , 6 S.W.3d 453, 464 (Tenn. 1999) (quoting State v. Langford , 994 S.W.2d 126, 128 (Tenn. 1999) (add’l citations omitted)). Further , “[t]his mandate to charge lesser-inc luded offenses applies whether or not a defendant requests such a n instruction.” Id.

In Burns , the supre

me court also set f orth the f actors to consider in determining whether an offense is a lesser-included offense of another c rime. Specifically, a

n offense is a lesser-included offense of anothe r if
(a) all of its s tatutory

elementsare inc luded with in the stat

utory elements of t he offense charged; or
(b) it fails to m

eet the d efinition in part (a

) only in the re sp ect that i t containsa statutory element or elements establishing (1) a differ e nt menta l stat e indi catin g a lesser kind of culpability; and/or (2) a

less seri ous harm o

r risk of h arm to the

same person, property

or public interest; or
(c) it consists of

(1) facilitation of

the offe nse char ged or of an off ense tha t otherwi se meets the definition of lesser-included of less er-included offense in part (a) or (b); or (2) an attempt to commit the offense charg ed or an off ense that othe rwise me ets the definition of lesser-included offense in part (a ) or (b) ; or (3) so licitation to commit the offe nse char ged or an offe nse that othe rwise meets the definition of lesser-included offense in part (a) or (b).

Id. at 466-467. The mere existence of a lesser o ffense

to a char ged of fense is not suff

icient in itself to warrant a charge , however. Id. at 467. The trial court is not required to instruct the jury on lesser offenses unless it has also determined that (1) evidence exists that rea sonable m inds could accept
as to the lesser charge and (2) such evidence is legally sufficient to support

a conviction. Id. at 466- 67.

Becau se a failure to g ive lesser -included offense instructions is an error of constitutional dimension s, it “is ‘pr

esumed’ revers ible; it will result in revers al unless the State convinces the reviewing court beyond a reasonable doubt that the error did not affect the outcome of the tri al. ” Statev. Ely , 48 S.W.3d 710, 725 (Tenn. 2001) The question whether a given offense should have been submitted t

o the jury as a less er-inc luded off

ense is a mixed question of law and fact. State v. R ush , 50 S.W.3d 424 , 427 (Te nn. 2001) . Thus, the

standar d of revi ew is de novo without a presumption of correctness. Id.-62-

A. Especia

lly Aggra vated Ki dnapping

The Defendants were each convi cted o f one co unt o f espec iall y aggravated kidn appin g, definedas fa ls e i mp ri so nm en t w he re th e v ic ti m s uf fe rs se ri ou s b od il y in

ju ry. See Tenn. Code Ann. § 39-13-305(a)(4) (1997). The trial court g ave the jury instructions on e sp ec ia ll y a ggravated kidn appin g, and the le ss er offen ses of ag grava ted kidna pping a nd kidnap

ping. B oth Defe

ndants contendthat the ju

ry should hav e been in structed on the add

itional le sser of

fenses o f false imprisonmentand aggravated a ssault. Def endant Joseph Combs adds that instructions on facilitation of the charged offense

should have been included.

“A person commits the offense of false imprisonment who knowingly removes or confines another unlawfully so as to interfe re substantially with the other’s liber ty.” Tenn. Code Ann. § 39- 13-302(a) (1997). “A person is crimina

lly responsible for the facilitation of a felony if, knowing that another intends to

commit a sp ecific f

elony , but withou

t the inten

t r equi red for criminal responsi bility

. . . , the personknowingly fur nishes substantial assistance in the commission of the felony.” Id. § 39-11-403. As relev ant here , a perso n commits a ggra vated as sault who intentiona lly
or knowingly or

reckle ssly

commits an

assault, as defined in § 39- 13-101, a nd cause s serious bodily injury or uses or display s a deadly we apon. See id. § 39-13-102(a), -101.
With reg ard to fa

lse impris onment, w e note tha t the offe nse is incorporated by

refer ence int o the statutory definition of especially a

ggravated kidnapping

. See id. § 39-13-3 05(a). T herefo re, it is clearly a

lesser-included offense under part( a) of the Burns test, supra . The second determination under Burns , i.e., wh

ether evidence

exists that reasonable minds could accept as to t his l esser c harge and whether it is legally

sufficient to support a conviction, is unnecessary , however, based on the decision of our sup

reme court in State v. Will iams , 977 S.W.2d 101 (Tenn. 1998). See also State v. Bowles , 52 S.W.3d 69 (Tenn. 2001).

In State v. Will

iams , the defendant was convicted of first deg ree premeditated murder. The trial court refused the defendant’s request to instruct the jury on voluntarymanslaughter as a lesserincluded offense, but did instruct the jury on second degree murder a nd reckless homicide. Williams , 977 S.W.2d a t 104. Hold

ing that the trial court’s failure

to instruc t on volunta

r y manslaughter was harmless, the Tennessee Supreme Court drew the following conclusion:
[B]y finding the defe ndant guilty

of the hig

hest off ense to the exclusion of the immediate

ly lesser offense, second degr ee mur der, the jury

necessa rily rejected all other le ss er of fe ns es , i nc lu di ng vo lu nt ar y m ansla ugh te r. Ac co rd in gl y, the trial court’s erroneous failure to charge voluntary manslaughter is harmless beyo n d a reasonable doubt because the jury’s verdict of guilty on th e greate r offense of first degree murder and its disinclination to consider the lesser included offense of second degree murder clearly demonstrates that i t certainly would not have returned a verdict on voluntary manslaughter

.-63-

Id. at 106 (emphasis added). This holding was restated by the supreme court in State v. Bowles , 52 S.W.3d at 78 ( defend ant’s convi ction for aggra vated rape affirme d; th e tria l cour t’s fa ilure to cha rge the ju ry on the les ser-inc luded off ense of s exual batte

ry was har mless bey ond a rea sonable

doub t where the jury

was instructed on the lesser offenses of rape and aggravated se

xual battery).

The record reveals that the instructions given the jury by

the trial court on the lesser-included offense of agg ravate d kidnapp ing embr

aced on ly th e eleme nts requiring the jury to find (1) that the Defendant

knowingly a

nd unlawf

ully confine d the vict

im, and (2 ) that the

victim suf

fered b odily injury or that the Defendant possessed or threatened the use of a

deadly we apon. See Tenn. Code Ann. § 39-13-304(a)(4) and ( 5) (1997). Likewise, the court’ s instructions on the lesser-included offense of kidnapping only r

equired the jury

to find (1) that the Defendant knowingly and unlawfully confinedthe victim , and (2) that the confinement was under circ umstances that expose d the vict im to substantial risk of bodily injury

. See id. § 39-13-303(a)(1). Consequently , the jury was pre sented withproper

lesser- included

offense s for the

offense of especially

aggravated kidnapping

as charged in this case. Therefore, under Williams and Bowles we may c onclude that (1) by finding the Defend ants guilt y of the grea ter offense, especi ally aggr avated kidn apping, in lieu of the lesser offenses of aggr

avated kidnapping and ki dnapping , the jury necessa rily weighed the evidence and determinedthat the g

reater offense was the mo st approp

riate charge supported

by the evidenc e; and (2) the result would have been the same, even if the jury had received instructions on theoffense of false imprisonment. We may

further conclude that the tr ial cour t’s failu re to cha rge the jury on this offens e, alth ough error, was neverthele ss harmless beyond a r easonable doubt. See also Tenn. R. App. P. 36(b); Tenn. R. Crim. P. 52(a).

Even i f Willia ms was not a pplicabl e here, the Defe

ndants’ a rgumen t would simil arly

fail under the harmless error analy sis set forth by our s upreme c ourt in State v. Allen , 69 S.W.3d 181 (Tenn. 2002) :
When a lesser-included offense instruction is improperl y omitted, . . . the harmlesserror in

quiry is the same

as for ot her cons titutional errors : whether

it appears beyond

a reasonab le doubt that the error did not affect the outcome of the trial. (Cit ation omit ted.) In makin g this determ inati on, a r eview ing cou rt should conduct a thorough examination of the record, including the e vidence present ed at tr ia l, th e d ef

en da nt ’s th eo ry o f d ef

en se , a nd th e v er di ct re tu rn ed by t he ju ry.
Id. at19 1. A thorou gh exa mination o f the re cord and the evide

nce pre sented a

t trial lea ds us to conclude that

the trial court’s error did not affect the outcome of the trial or, more specifically , the jury’s verdict for this offense. The fact that Esther suffered serious injury was unco ntrover

ted. Thus , we are co nvinced b ey ond a rea sonable d oubt that a

jury , if give

n the oppo

rtunity , would not hav e convicte d either

Defendant of the

offense of false imprisonme

nt.

An Allen harmless error analy sis applies with equal veracity to Defendant Joseph Comb s argument concerning the trial court’s failure to instruct the jury on the lesser offense of facilitation of especially a

ggra vated kidnapping, clearly a lesser-included offense under Burns , part (c).-64-

Sp ec if ic al ly, the proof

of Joseph Co mbs’ par

ticipatio n in and cr

iminal re sponsibilit

y f or this off ense is so overw

helmin g that we are convinced bey ond a reasonable doubt that no jury , if given the op po rt un it y, would find him guilty of the offense of facilitation

of esp ecial ly aggravate d kid nappi ng. Co ns eq ue nt ly, the trial court’s failure to instruct the jury , wh il e error , is never theless h armless bey ond a rea sonable d

oubt.
Turning to whether jury instructions were required for agg

ravated assault, as a lesser-included offense of espec ially

aggr avated k idnapping , we find

that the tr

ial cour t did not e

rr bec ause the offense of agg ravate d assault

is not a lesser-included offense under Burns . Specifically, we first find that part (a) of the Burns test i s not satis fied, whereas all of the statutory elements in aggravated
assa u lt are not included within the statutory e lements of especially

aggravated kidnapping . As previous ly

noted, a co nv ic ti on of

ag gr av at ed as sa ul t r eq ui re s p ro of th at th e a cc us ed in te nt io na ll y, knowing ly

or recklessly

caused serious bodily injury to the victim. See Tenn. Code Ann. § 39-13- 101, -10 2 (199 7). In this case, espec ially ag gravated kidnapping require s proof that a person knowing ly

and unlaw fully

confine d the vict

im so as to interferesu bs ta nt ia ll y wi th hi s o r h er li be rt y, where the victim suffers serious bodily injury

. See id. § 39-1 3-305 , -302 . A pla in read ing o f th e statute indicate s that a c onviction for the k idnapping offense require s proof on

ly that the vi ctim’s serious bodily injury

occurred during the unlawful conf inement, and not as the result of any specific intent on the part of the accused to harm or injure the victim. Id.

Neithe r is part (b) of the Burns test satis fied. Par t (b) stat es that a lesser- included

offense may be found in caseswhere th

e offen se “fails to meet

the definition in part (a) only in the respect that it contains a statutory element or elements establishing (1) a different menta l state indi catin g a lesser kind of culpability; and/or (2) a less serious harm or risk of harm to the

same per son, prop erty
or public interest.” Burns , 6 S.W.3d at 467. Both offenses involve serious bodily injury, the essential difference being whethe r especially

aggravated kidnapping

associates a mental state with causation of the injury. Because we find that the mental state required to in te nt io na ll y, k no wi ng ly,
or recklessly c ause a

victim’s serious bodily injury cannot be considered

a lesser kind of cu

lpability
or harm t han that r equired in an off ense whe re serio us bodily injury merely results, p art (b) i s n o t satisfied. Clearly, part ( c) is also not satisfiedsince the lesser o ffense

does not involve facilitation, attempt, or solicitation of

either the charged offense or

an offense that otherwise meets the definition of lesser-included offense in part (a) or (b).

Our research reveals that

the issue whether the crime of assault is a less er-inc luded off ense of especially a

ggravated kidnapping

was raised in Stat e v. Legg , 9 S.W.3d 111 (Te nn. 1999), but decided on other grounds. Id. at 118. Th e suprem e court made the f

ollowing observa tion durin g its consideration of the two

offense s: “Unlike

aggr avated k idnapping , the ele

ments of th

e crime of assault do not contemplate a continuing course of conduct . . . . Rathe

r, the cr ime itself contemplates that it is consummated or completed the moment bodily injury occurs.” Id. This sug gests that even the nature of the crimes are quite dissimilar. I n any event, be cause w e find tha

t the assa ult offense requires proof of some intent to cause injury, while the kidnapping charge requires confinement where in ju ry results , but which need not even be cau sed by either Defendant, the Burns test for-65-

lesser-included

offense status is not satisfied in this case. Thus, the trial court did not err by failing to instruc t the jury

on the off

ense of a ggra vated as sault.

Defendant

Joseph Combs s ingular

ly contends that the trial court also erred by not giving

the jury instructions on “involuntary servitude,”as a lesser-included offense of espec ial ly ag gravated kidnapping. “Involuntary servitude” is defined as “the condition of a person who is compelled by force, coercion or imprisonment and against the person’s will to labor for another, whether paid or not.” See Tenn. Code Ann. § 39-13-301(1) (1997). Involuntary servitude is not a distinct offense, butone of two elementsdescrib ing a co ndition of confine ment which must be pr

oved toconvict a person of kidnapping. See id. § 39-13-3 03(a)( 2) (1997) . This arg ument hasno merit.
B. Aggravated Assa

ult

Count 2 of th

e prese ntment in th

is case charged Defenda

nt Joseph Combs with aggravated assault, i.e., inte

ntionally and knowingly

causing bodily injury to Esther Combs by the display of a deadly weapon, Tenn. Code Ann. § 39-13-102 (a)(1)( B). The jury

was instruc ted on intentional/knowing aggravated assa ult, the cri me charg ed, and r ecklessaggr

avated a ssault as a lesser-included

offense. Defendant contends that the trial court committed reversible error by failing to also cha

rge the jury on the off

enses of reckle ss endang erment and assault, as additional lesserincluded offenses of agg

ravated assault. We disagree.

“Reckle ss endang erment”is committed when the defendant “recklessly engages in conduct
w hich places or may

place another person in imminent danger of de ath or serious bodily inj ur y. ” Tenn. Code Ann. § 39-13-1 03 (1997) . “Agg ravate d assault

” is committed when a person intentiona

lly or knowin gly

or reck lessly commits an

assault, as defined in

§ 39-13-101 [which means the defendant caused

bodily injury or anothe r to rea sonably

fear imminent bodily injury ], and causes serious bodily

injury or uses or

display s a dea dly weapon. See id. § 39-13-102(a), -101 (1997). When the defe

ndant is c onvicted

of committ

ing the c rime of a ggra vated as sault reckle ssly , the cri me is a Class D felony, as opposed to a Class C felony when the cr ime is committed intent ionallyo r knowingly

. Id. § 39-13-102(d).

Under the circumstances presented here, w e find that the trial court’s failure to instruct the jury on the offense of reckless endang erment, if error, was harmless bey ond a reasonable doubt under Statev. Williams , 977 S.W.2d 101 (Tenn. 1998). By finding the Defendant guilty

of intentional or knowing aggravated assa ult, in lieu of reckless aggrava ted assaul t, the jury expressly rejected any notion that the Defendant committed the crime reckle ssly

. See id. at 106. The jury’s disinclination to consider the lesser-include d of fense of reckle ss agg

ravate d assault

clearly demonstr ates tha t it also would not have returned a verdict on the lesser crime of reckless enda ngerment. Under similar
reason ing, we also

reject Defendant’s argument that the trial court erred by failing to instruct the jury on the les ser-inc luded off ense of a ssault.-66-

C. Aggra

vated Rape

Defendant

Joseph Combs contends that the trial court erred by not instructing the jury on rape and aggravated a ssault, as lesser-included offenses of ag gravated rape. We disag ree.
Count 12 of the p

resentme nt, char gin g Defe ndant with aggravated ra pe, alleges that on or about April 1989, Joseph Combs unlawfully and fel on io us ly s exually penetra ted Esthe r, a chil d under thirteen yea

rs of age, c o ntrary

to Tenne ssee Code

Annotate d section

39-13-50 2. In

April 1989, the offense of agg ravated rape was defined a s “u nl awful sexual penetration of another accompa nied by any of the fo llowing circumsta nces: (1) Force or coercion is used to acc omplish the act and the defendant is armed witha weapon or any

article used or f

ashioned in a manne

r to lead the victim reasonably

to believe it to be a weapon; (2) The d efenda nt cause s persona

l injury to the vic tim; (3) The defendant is aided or abetted by one

(1) or more other persons; and (A) Force or

coercion is used to accomplish theact; or (B) The defendant knows or has reason t

o know tha

t the vic tim is mentally defective, mentally incapac itated or physically

helpless; or (4) The victim is less than thirteen (13) years of age.

Tenn. Code A nn. § 39-2 -603 (Sup p. 1988) (

rape of a victim le ss than thir

teen y ears of age is
curren tly codified as “rape of a child,” Tenn. Cod e Ann. § 39-13-522 (1997)). At that time, the offense of rape was defined as the “unlawf ul sexual penetration of a victim by the defendant or the unlawful sexual penetration of a defendant by a victim,” where
(1) For ce or co ercion i s used to a ccomplish

the act; (2) The actor knows or h as reas on to know t hat the vi ctim is men

tally defective, mentally

incapacitated or phy sically helpless; or (3) The actor accomplishes sexual penetration by fraud.

See Tenn. Code Ann. § 39-2-604 (Supp. 1988).

In our prior discussion of the issue regarding suf ficiency of

the evidence, we pointedout that the convicti on of ag grava ted rape require d only

proof of “unlawf ul s exual pene tration of

a victim by the defendant

or the defendant by

a victim,” where “[t]he victim is less than thirteen (13) y ears of age.” Id. § 39-2-603. Since the conviction for agg ravated rape di d not re quire the State to establish any one of the

three elements, or “circumstances,” enumera ted in the offense of rape, the offense clearly

does not satisfy part (a) of Burns . It is equally obvious that the criteria for part (c)
are not met. Furthermore, under State v. Allen , discussed supra , even if it was error to not instruct the jury on the offe

nse of rape, the error washarmlessbey ond a rea sonable doubt, based upon the proof and the theory

of defense. Allen , 69 S.W.3d at 191.-67-

The offense

of agg ravate d assault

also fail s to satisfy the Burns criterion for a lesser-included offense of agg ravate d rape, w

here the victim was less than thirteen (13) y ears of age. See id. § 39-2- 6 03. Aggravated assault re quires proof that the accused (1) willfully , knowingly or r ecklessly ca

used
or attempted to cause serious bod il y i njury to another; or ( 2) willfully or knowingly caused or attempted to cause bodily injury while using or displaying a deadly we apon. See id. § 39-2-101(b). Neither of these elements are included in the offense of aggravated ra

pe as cha rged here , which
means that part

(a) is no t satisfie d. Since p arts (b) and (c) are als o clear ly not satisfied, the trial court did not err by fa

iling to instruct the jury on this crime.
D. Aggravated Perjury

Defendant

Joseph Combs c ontends th at the tri al court erred b y f

ailing to instruct the jury on the offense of perjury , as a lesser-included offense of ag gravated perjury . We agree.

A person commits the offense of agg ravated perjury

who, with intent to dece ive, make s a false statement, under oath; the false statement is made du ring or in connection with an official procee ding; and the f

alsestatement is material. See Tenn. Code Ann. § 39-16-703, -702 (1997). As relevant here, a conviction for

the offense of perjury

merely requires proof that the accused made a false statement, under oath, with intent to deceive. See id. § 39-16-702.

Defendant

correc tly a sserts that the statutory elements constituting pe rjury are incorporated by reference within the statutory elements of

the offense charged, a

ggravated perjury . This satisfies part (a) of th e test in Burns

. See Burns , 6 S.W.3d at 467. Having concluded that perjuryis a lesserincluded offense, we use the following two-step analy sis to determine whether the evidence justified an instruction on that offense:
First, the trial court must determine whether any evidence exists tha t re asonable minds could ac cept as t

o the lesse

r-includ ed offe nse. I n making this determination, t h e trial court must view the evidence liberally in the light most favorable to the
ex istence of the lesser-included offense without making a ny judgments on the credibi lity

of such evidence. Second, the trial court must determine if the evidence, vi ewed in this light, is legally suff icient to support a conviction for the lesser-included offense.

Id. at 469. Clearly, evidenc e exists which reasonable minds could accept as to the offense of perjury and the proof

is suffic ient to support a convic tion. Def endant a dmitted tha

t he made

a false statemen t, un der oath, w ith intent to deceive. The proof also shows that the false statement was unquestio nably

made dur ing or in connection with an official proceeding, i.e., to the cour t during the
conserv atorship

proceeding on October 3, 1997. The cont ested issu e was whe

ther Def endant’ s false statement was “material.”

Becau se the trial court’s failureto instruct t he jury on this off

ense wa s indeed e

rror, we must determine whether

the error was harmless bey ond a reasonable doubt. State v. El y , 48 S.W.3d 710,-68-

727 (Tenn. 2001). Anerroneous failure to give a lesser- included

offense instructi on will re sult in reversal unless a

reviewing court concludes bey ond a reasonable doubt

that the error did not affect the outcome of the trial. Id. at 725; State v. Bowles , 52 S.W.3d 69, 77 (Tenn. 2001). Williams does
no tapply here , because the trial court instructed the jury solely on ag gravated perjury , withou t instructions for any le sser-included offenses. See Will iam s , 977 S.W.2d a t 106. “[The

supreme court has] never

held, however, that a failure to instruct on a lesser-inc luded offense can be h armless beyond a reaso nable

doubt only when an intermedia te offense is rejected.” State v. Allen , 69 S.W.3d 181, 189 (Tenn. 2002) (The improper omission of a lesser-included off ense is ana logous to the improp eromission of

an element of an offense, where the proper inquiry is whe ther the record contains evidence that could rationally lead to a contrar y f inding w ith respect to the o mitted ele ment. Id. at 190-91.).
Here, the issue

essentia lly t urns on wh

ether De fendant ’s false

statemen

t to the court concerning Esther’s whereabouts could be conside red “ma terial.” For our purposes , “mater

ial”
m eans the “statement, irrespective of its admissibility unde r the rules of evidence, could have affec ted the c ourse or

outcome of the official proceeding.” Tenn. Code Ann. § 39-16-702 ( 1997). Co ns eq ue nt ly, this Court must determine whether the record contains any evide

nce from which the jury could rationally conc lude that Defendant’s statement was not material. I n light of the subjective character of the statutory def

inition of “material,” we are unable to conclude be yond a reas onable doubtthat the jury, if given the opportunity, would not have decided that Defendant’s false statement didnot affect the course or outcome of the c onservatorship proce eding. As a result, w e are a

lso unable to conclude bey ond a

reasona ble doubt t

hat the tr ial cour t’s failu re to instruct o n the off

ense of perjury did not af fect the jury ’s verdi ct. Bec ause the error isnot harmle ss, we reverse Defendant’s conviction for aggrava

ted perjury a

nd remand this matter for a new trial on that charg e.
VII. Instr

uction on Espe

cially Agg ravated

Kidnapping

The Defend ants also

contend t hat trial court er red by failing to give the complete and

proper definition of “unlawful,” when instructing the jury on the especially a

ggravated kidnapping

charge. The Defendants assert that if the trial judge had not de leted t he refe

rence to the victim’s age, as provided in the statute, the jury would have been able to consider, as a “defe nse, ” the fact that

a paren t or gua

rdian ma y c onsent to a

nd thus con

fine the victim lawfully , where the victim is under the age of thirteen. We disagree.

It is well-settled that a defendant has a constitutional right to a correc t and c ompl ete cha rge of the law, so that

eachissue of fact raised by the evidence will be submitted to the jury on proper instructions. State v. Garrison , 40 S.W.3d 426, 432 ( Tenn. 200 0); State v. Teel , 793 S.W.2d 236, 249 (Tenn. 1990). In deter mining whether jury

instructions are erroneous, this Court must read the entire charge and

only invalida te it if, wh

en read as a whol e, it fail s to fairly submit the leg al issues
or misleads the jury as to the applica ble law. See State v. Vann , 976 S.W.2d 93, 101 (Tenn. 1998). “It is the duty of the trial judge without request to g ive the jury prope r instructions as to the law governing the issues raised by the na ture of the pro cee dings and the evidence introduced during trial.” Teel , 793 S.W.2d at 249.-69-

In the conte

xt of kidnap

ping an d false im

prisonme nt offen ses, “unl awful” i s statu torily defined, with respect

to remova

l or conf inement, as “one w

hich is accomplished by f orce, threat or fraud, or, in the case of a person who is under the ag e of thirteen (13) or incompetent, accomplished withoutthe consent of a parent, guardia n or other person responsible for the genera l supervision of the minor’s or incompetent’s welfare.” Tenn. Code Ann. § 39- 13-301(2) (1997). The record reflects that the Defendants requested the jury be given this definition, i n its entirety, before the jury was charged. The trial judge denied the reque st, findin g that the age of the victim as an a ggravating factor had been removed from the presentment prior t o trial, pursuant to an amendment approved by the court.

The Defendants’ assertion concerning the loss of a

“defense” based upon

the victim ’s age

is essential ly

a restatement of an argument pre viously presented. (See

the analysis of evide

ntiary sufficiency

concerning Defendants’ c onvictions for especially aggravated kidna

pping .) In that argument , the De fendant s contend ed that a ny c onfineme

nt occur ring pr ior to Esther’s thir

teenth birthday could not b e “unlaw ful,” be cause it was not a ccomplish

ed withou t the cons ent of a p arent, guardian or other person r esponsibl e for the general supervision of the minor’s we lfare pursuant

to the definition of “u nlawful ” provided by the sta tute. The Defendants asserted that they gave themselves consent t

o confine Esther, a nd, afte r she bec ame thirt

e en ye ars of age, their status as foster parents conferred upon them the rig htto continue to do so since it was “by f orce of law that all parents, guardians or other personsresponsible for the general supervision of a minor’s welfa re are possessed of the power to confine them.”

In our anal

ysi s of that issue, we observed that the Defendants cited no lega l support f

or this assertion. They still fail to do so. We also noted that the Defe ndants never completed

t he legal formalities necessary

to e st ablish either of them as Esther’s legal pare nt, guardian or other person responsi ble for the general supervision of her welfare. The fact that the D efendants’ parental status
was never legally

sanctioned makes any

alleged “defense”on this groundcomplete ly w ithout mer

it. A plain reading of the statutory

definition indicates that removal or confinement by f

orce, threat or fraud may be unlawful, even if accomplished with the consent of a parent, guardian or other person entrustedwi th the minor’s care. We concluded that the evidence was sufficient to find that the Defend ants confined Esther by “for ce, thre at o r fraud.” Here, we reemphasize that Esther turned thirteen years of

age on November

16, 1990, which means that she endured the great majority

of the period of “confinement” (more than six y ears) after

attaining the age of thirteen.

Mor eover, we do not f

ind a prov

ision for t

his “def ense” a mong the statutes d

ealing with “GeneralDefenses” or “Justification Excluding Criminal Re sponsibilit y,” where th e grea t majority of vali d “defenses” are located. See Tenn. Code Ann. §§ 39-11- 501 to 505, 601 to 621 (19 97)

. Hence, the Defendants’ classification of the proposed i nst ru ct io n a s a “d ef en se ,” ev en lo os el ydefined, is without support by either statute or case law.

In summation, a thorough review of the relevant law and th

e entire charg e submitte d to the jury reveals that the instructions given by the trial judge fairly

and c or re ct ly submitted the proper legal issues and that they

do not mislead the jury as to the applica ble law. Accordingly , we conclude-70-

that the constitutional rights of the Defendants were not violated and the trial court did not err. The Defendants are not entitled to relief on this issue.
VIII. Merger of Offenses

Defendant

Evange line Combs a

rgues t h at the tr ial court erred by

failing to merge her convictions for aggravate d child abuse into the conviction for especially aggravat ed kidnapp ing. Defendant

Joseph Combs a

rgues that it was also error not to merge his conviction for ag gravated assault into the conviction fo r especially a ggravated kidnapping . The Defendants claim that the separa te convicti ons in this c aseviolate f irmly establish ed rulesagains t multiplicity in indictme

nts because (a) the time peri ods in the c

hild abuse

and assa ult offenses overlap the

time period alleged in the especially a

ggravated kidnapping

coun t, (b) the elements for these offenses are the same as those for especially a

ggravated kidnapping , and (c) the same proof was used to es tablish the ir guilt for different crimes. We disagree

. “Multiplic

ity concerns the division o f conduc t into discr ete off enses, c reating severa l offense s outof a sing le offense.” State v. Phillips , 924 S.W.2d 662, 665 (Tenn. 1996). Multiple convictions and/or punishments for the same offense violate federa l and state constitutional prohibitions agains t doublejeop ardy. See U.S. Const. amend. V; Tenn. Const. Art. I, § 10. I n State v. Denton , 9 3 8 S.W.2d 373 (Tenn. 1996), our supreme court established a fra mework for determining whether a defendant has rec eived mul

t iple punishmen

ts for the “same of fense.” The reviewing

court mus t consider (1) the statutory e

lements of the offenses, (2) the evidence used to prove the offenses, (3) whether there were multiple victims or discrete acts, and (4) the pu rpose s underlying

the statutes involved. Id. at 381.
A. Aggra

vated Chil d Abuse

Defendant

Evangeline Combs was convicted of four counts of a ggravat ed child abuse. A person commits the offense of aggra vatedchild abuse or aggrava ted ch il d n eg le ct wh o k no wi ng ly, other than by acc idental means, treats a child under eightee n (18) yea rs of age in such a manner as to inflict in

jury or neg lects such a child s o as to adversely affect the child’s health and welfar e, and the c rimi nal act was accomplished with a deadly weapon or results in serious bodily injury to the child. SeeTenn. Code Ann. §§ 39-15-401, -402 (1991 & 1997). (The jury found Evangeline Combs guilty of two counts of aggrava

ted child abuse where

serious bodily injury

resulted, and

two count s where ser ious bodily injury resulted and

a deadly w eapon was used.) Especially aggrav ate d kidn appin g, as relevant here, require d proof th at (1) the defenda nt knowingly

removed or confined the victim unlawfully, i.e., by force , threat or fr au d, so as to in te rf

er e s ub st an ti al ly w it h h er li be rt y, and (2) the victim

s uffered serious bodily

injury. See Tenn. Code Ann. §§ 39-13-305(a)(4), 39-13-302(a), -301(2) (1997).
Applying the Denton analy sis to Evangeline Combs’ con

victions f or these offense s, we first notethat each required an element that the other one did not. First, we note that the offense of aggravated

child abu se requi

red the j ury

to find tha

t Defend ant non-accident ally treated Esther, a-71-

child under eighteen years of age , in such a manner as to inflict serious bodily injury or neglected her so as to ad

versely affec t her hea

lth and welfare. The kidnapping offe nse (as charged) did not require a find ing con cernin g Esth er’s age or that Evangeline Combs non-accidentally neglected or inflicted injury upon her. Second, the kidnapping offense required removal or confinement

by force, threat, or fraud/deception , and the child abuse offense did not. This initial determination indicates that the tw o offens es should n ot be cons idered o ne for do uble jeop ardy

purposes

.
In a similar

vein, we find that t

he evide nce rel ied upon b y the State

to prove the

child abu se offenses was clearly

different than that used to prove the kidnapping offe nse. Two of the

child abu se convictions were ba sed on the jury ’s finding

that Evangeline

Combs knowingly

infli cted spe cific serious bodily injuries upon Esther, in Febr uary 1994 and Septe

mber 1995, with adeadly we apon, to wit: a baseball bat. The remaining two c on victions required proof that Evangeline Combs inflicted serious b odily

injury in Novemb er 1994 a

nd, aga in, in September

1994. All four offenses required proof that Esther was under the age of eighteen when the cr

imes were c ommitted . By contras t, the kidna

pping c onvictio n was based upon the jury’ s finding that Evangeline Combs knowing ly

and unlawfully conf

ined Esther for more than seven y ears and that shesuffered serious bodily injury during suc

h confinement. As we previously noted, the statute concerning kidnapping al s o do es no t r eq ui re th e S ta te to pr ov e t ha t t he ac cu se d a ct ua ll y intended to injure t

he victim. Co ns eq ue nt ly, this secondfactor further supports separate off enses. It follows that the offense s were also committed by discrete a cts, the third f

actor, which weighs in favor of finding two differ ent crimes.
Finally, a c omparison of the purpo ses of the

respec tive statu

tes reve als that, although bot h statutes ar e a im ed at pr oh ib it in g b eh av io r w hi ch ca us es in ju ry, they are aimed at different evils. The crime of child a

buse is loc ated in

the chapter concerned with offense s against the family and specific ally

protects children. The statutes prohibiting kidnapping g ene rally protect a person’s li be rt y. Based on the forgoing, w e ha v e no troub le concl uding tha t a defe ndant who

unlawfully confineda p er so n, wh ic h r es ul te d i n s er io us bo di ly i nj ur y, should be subject to separate convictions and separate punishments when the evidence shows that, during the confine ment, the defenda nt also treated the victim

(a child under ei ghteen

ye ars of a

ge) in s uch a man

ner as to inflict se rious bodi ly in ju ry. Thus, EvangelineCombs’ convictions for aggravated c hild abuse andespecially a ggravated kidnapping should not be merged.
B. Aggravated Assa

ult

As releva

nt here, “ag gravated assault” is committed when a person intentionally or knowingly c auses bodily injury to another and

uses or displays a dea

dly weapon. See

Tenn. Code Ann. § 39-13-102(a), -101(a)(1) (Supp. 1994 & 19 97). The presentment alleged that Defenda nt Joseph Combs did “unlawfully, feloniously , i ntention ally , and knowingly cause bo dily

injury to Esther A. Combs, by t

he disp lay of a de adly wea pon, to-wit: a rope . . . .” The jury found Joseph Combs guilty of

committing intentional/knowing aggrava ted assault by display

of a deadly

weapon.-72-

Under Denton , we ag ain note that eachof these offenses required an ele ment that the other
one did not. That is, the aggravated assault (a s charged in this case) require d the jury to find that Joseph Combs cau sed bodily injur y and display

ed a deadly

weapon, to wit: a rope. Although the kidnapping count all eged th at Joseph Com bs display

ed a dea dly weapon, the jury

did not bas e its verdict on such a finding. Rather, the conviction of es pecially ag gravated kidnapping required seri ous bo di ly i nj ur y resulting from confinement . Confinement is not an element of aggrava ted assault. This determination suggests that the two offense s are not

one for d ouble jeo pardy purposes

.
In addition, the evidence used to prove the two offenses was differe nt. The assault conviction
was based on proof that Joseph Combs, during the time period extending from June 1, 1996 to September

1, 1996, c aused bo dily

injury to Esther by

display of

a rope. His kidnapping conviction
was based on proof that he unlawfu ll y confined Esther from April 30, 1990 to October 3, 1997, a continuous offense, an d that serious bodi ly in jury occurr ed during that time. Proof of a

deadly weapon was no t neces sary for th e kidn appin g conviction . Thus, thisfactor also suppo

rts sepa rate offense s. Since we find th at the of fenses c learly

involved d

iscrete acts, the third factor furth

er fails to support

Joseph Combs’ argume

nt.

As with our previous analysis, eve n though the purposes underly ing both statutes appear

to prohibit behavior which causes injury , the provisions are aimed at diffe rent evi ls: one pr

otects agains tan unlaw ful infri

ngemen t on libert y; th e other p rotects against fear of

ha rm an d b od il y in

ju ry. Accord ingly , we conclude that Joseph Combs is properly subject to separate convictions and separate punishmen

ts for the criminal acts whic h led to his convicti ons for th ese individual cr

imes.

Both Defendan ts asse rt that merger was also proper on the g round that the crimes were alleged to occur during time periods which “overlappe d” that period set forth in the cou nt for especia lly aggr avate d kid nappi ng. This arg ument is without meri

t. Nothing

in the law

prohibits convictions for crimes committed contemporaneously with other crimes, and the Defendants have cited no legal precedent to support their asse rtion.
C. Analysis Under Anthony

Both Defend ants fur

ther ar gue tha t separa te convictions a

re impro per under the principles enunciated

in State v. Anthony , 817 S.W.2d 299 (Tenn. 1991). In Anthony , our supreme court recognized that

a separate kidnapping conviction may violate due process when the kidna pping is essentia lly incident al to an acco mpany

ing fel ony

convicti on and not

“signif icant en ough, in

and of itself, to warrant independent prosecution.” Anthony , 817 S.W.2d at 306. The first question in an analy sis of this issue is whethe r the mo vement or confine ment used

was bey ond that necessar

y to commit the acc ompany

ing fel o n y. State v. Dixon , 957 S.W.2d 532, 535 (Tenn.1997) (citing Anthony , 817 S.W.2d at 306). “If so, the next inquiry is whether the addi tio nal movement or confin ement: ( 1) prevented the victim from summoning help; (2) lessened the def endant’s risk of detection; or (3) created

a significant danger or inc reased the victim’s risk of harm.” Id. Becau se the holding in Anthony

rested upon the court’s understanding of due process, rather

than a concern-73-

for constitutional protections against double jeop ardy, see Anthony , 817 S.W.2d a t 306, we s hall briefly addressthis arg

ument.
First, we findthat the confinement of Esther for more than seven y ears wa s unquesti onably beyond that nec essary

to commit the accompanying felonies of

aggravated assa

ult and aggravated child abuse in this ca se. Second , it is just as apparent to this Court that the psychologica l and physical torture which “unlawfully c onfined” Esther also prevented her from summoning help, since the torture merely

increased after ac ts of disobedience. Third, we believe that the threats of punishmen

t, and near-constant presence of the Defenda

nts or a n alleged sibling at Esther’s side whenever she was outside the home, certainly lessened the risk that any one would detectthe Defe ndants’ cr iminal actions. Finally, we a lso find that the fact and sheer length of Esther’ s confinement positively incre ased her risk of harm, since near

ly ev er y da y ri sk ed ad di ti on al in ju ry.

In summation, we conclude that the trial court did not err by failing to merge the convictions for the a for ement ioned offens es int o the c onvi ction for esp ecial ly aggravate d kid nappi ng. Speci fi ca ll y, we find th at separ ate conv ictions do not violate

the const itutional p

rinciple s o f du e processor prohib itions ag ainst double jeopardy in this case

for the reasons given. See 21 Am. Jur. 2d Criminal Law § 21 (1998) (citations omitted) (“The doctrine of merg er does not apply w here the offenses are separate and distinct , but only where th

e identic al crimin al acts c onstitute b oth offenses.”). The Defendants a re not entitled to relief on this issue.

IX. Sentencing

The Defendants also argue that the trial court

erred by (1) misapplying va

rious enhancement factor s, (2) fail

ing to aw ard suff

icient we ight to a ppropria te miti gating f actors, and (3) ordering consecutive se nte nces under State v. Wilkerson , 905 S .W.2 d 933 ( Tenn. 1995) . Afte r a tho rough review of the record, we disag ree. When an accused challenges the le ngth, range, or the

manner o f servic e of a se ntence, this Court’s review of the sentence impos ed by t he trial c ourt is de novo with a presumption of
correctness. Tenn. Code Ann. § 40-35-401(d). This presumption is conditioned upon an affirmative showing in the record that the trial judg e conside red the s entencing principles and all relevant facts and circumstances. State v. Pettus , 986 S.W.2d 5 40, 543 (Tenn. 1999 ). If the trial court fa ils to comply with the st

atutory directiv es, ther

e is no presumpt

ion of cor rectne ss and our

review i s de
novo

. State v. Poo le , 945 S.W.2d 93, 96 (Tenn. 1997).

The burden is upon the appe aling pa rty to show that the sentence is improper. Tenn. Code Ann. § 40-35-401(d), Sentencing Commission Comments. In conducting ou r rev iew, we are required, pursuant to Tenn. Code Ann. § 40-35-210, to consider the following

factor s in sente ncing:
(1) [t]he e vidence, if any, received at the trial and the sentencing he aring; (2) [t]he presentencereport; (3) [t]he principles of sentencing and arg uments as to sentencing alterna tives; (4) [t]he nature and characteristics of the criminal conduct involved; (5)-74-

[e]vidence and information offered by the parties on the enhancement and mitigating factors in §§ 40-35-113 and40-35-114; and (6) [a]ny statement the defendant wishes to make in the defendant’s own behalf about sentencing

. If our review “reflects that the trial court f ollowed the statutory sentenc ing procedure, imposed a lawful sentence after having givendue consideration and proper weight to the factors and principles set outunder the sentencing law, and that the trial court’s finding s of fac t are ad equatel y supported by the rec ord, then we may not modify the se ntence even if we would have pref erred a different result.” State v. Pike , 978 S. W. 2d 9 04, 926 -27 (Te nn. 199 8). In the case sub judice , our review i s de novo with a pre sumption of correctness. A. Sentencing Factors

If no mitigating or enhancement factors for sentencing are present, Tenn. Code Ann. § 40-35- 210(c) provides that the presumptive sentence for Class B, C, D, and E felony offenses shall be the minimum sentence within the a pplicable range. State v. Lavender , 967 S.W.2d 803, 806 (Tenn. 1998); State v. Fletcher , 805 S.W.2d 785, 788 (Tenn. Crim. App. 1991). The presumptive sentence for a Class A felony unde

r these circumstances is the midpoint of the range. Te nn. Code Ann. § 40- 35-210(c). However, if such factors do exist, a trial court should enhance the presumptive sentence,
as appropriate, within the range for e nhancement factors and also re duce the sentence, as appropriate, within the range for any

mitigating factors. Tenn. Code Ann. § 4 0-35-210(e ); State v. A rnett , 49 S.W.3d 250, 257 (Tenn. 2001). No particular weight for each factor

is prescribed by

the statute, as the weight given to each fac tor is left to the discretion of the trial court as long as the trial court complies with the purposes and principles of the sentencing act and its findings are

supported by the record. State v. Mo ss , 727 S.W.2d 229, 238 (Ten n. 1986); State v. Kelley , 34 S.W.3d 471, 479 (Tenn. Crim. App. 2000 ); see Tenn. Code Ann. § 40-35-21 0, Sentencing Com mission Comme

nts. Neverth eless, should there be no mitigating factors, but enhancement

factors are present, a trial cour t may set the sentence above the presumptive sentence but within the applicable range. Tenn. Code Ann. § 40- 35-210(d

); State v. I

mfeld , 70 S.W.3d 698, 704 (Tenn. 2002).

With regard to Defendant Joseph Combs, the trial court found the following sente ncing factors applicable to the sentence specified: Concerning Defendant’s sentenc e for especially aggravated

kidnapping, the tri al court applied enhancement factor ( 1) “[t]he defendant has a previous history of criminal convictions or c riminal behavior in addition to those necessar y to establish the appropr iaterange”; (2) “[t]he defendant was a leader in the commission of an offense involving two (2) or mo re cr im in al ac to rs ”; (4 ) “ [a ] v ic ti m o f t he of fe ns e w as pa rt ic ul ar ly vulner able because of age or physical or menta

l disability”; and

(15) “[t]he defendant abused a position of public or private trust.” Tenn. Code Ann. § 40-35-114(1), (2), (4), and (15) (1997). The trial court applied enhancement

factors (1) and (15) also to the sentence f or aggravated

assault, and enhancement factor (1) to the sentence for agg ravated perjury

. To Defendant’s sentences for ag grava te d rape and the
sev en counts of rape, the trial court applied enhance ment factors (1) and (15), in addition t o enhancement

factor (7) , applica

ble wher e “[t]he of

fense in volved a v

ictim and w as committ

ed to gratify the d efend ant's desire for pleasure or e xcitement.” Id. § 40-35-114(7). As for mitigating-75-

factor s, the trial court

found the following circumstances applicable to all sentences: Defendant had
no prior cr

iminal re cord and

had acc omplished

some goo d in the co mmunity throu gh charitable work and his teaching vocation. See id. § 40-35-113(13).

Defendant

Joseph Combs contends that the trial court erred by applying e

nhancement factors (1), (2) and (4). To support his argument regarding

the impropriety of

factor (1), Defendant states merely that he “ did not hav e a criminal rec ord.” A c riminal r ecor d, per se , is not necessary for application of this factor, however. Our supreme cour thas held t

hat a trial court may utilize previous crimina l behavi or, which did not result in a conviction, to enhance a sentence w here the criminal behavior was shown by a pr

epond erance of the evidence. State v. Win field , 23 S.W.3d 279, 283 (Tenn. 2000); State v. Carico , 968 S.W. 2d 280, 287-88 (Tenn. 1998). With regard to prior criminal behavior, the trial court noted the absence of a criminal record, per se , and stat ed that it was no t limited to convictions of record. The court then found this factor a pp licable b ased on the “substantial amount of information” presented at trial concerning the criminal conduct of Defendant which wa s not the su

bject of formal charge s.
Defendant also argues that factor (2), r equiring the court to find that the defendant wa s a leader in the co mmission of

the offe nse, can not be use d to enhan

ce his se ntencesbecause

it is “illogical.” Specifically, De fendant asserts that both hea nd his wife cannot simultaneously be “leaders.” This argument concerns only the sentence for e specia lly agg ravated kidnapping, the offense for which both Defendants were convi cted a nd the only sentence to which this factor was applied. Because this crime is a continuing offe nse, and the proof indicates that eac h D efendant alterna tely and substantially contributed to the commission of the crime dur ing the seven plus years the victim was confined, we believe both Defendants could be logically construed a “leader in the commission of the offense .” As the State poin

ts out in its b

rief, the statutory langua ge for this enhancement

factor requires that the defendant be a leader , not the leader , where the offe nse involves two or more criminal actors. SeeTenn. Code Ann. § 40-35-114(2) (1997).
Regarding the trial court’s use of enhancement

factor (4), which requires a finding that the victim was particularly

vulnerable due to age, Defe ndant contends that it was inappropriately applied under State v. A dams , 864 S.W.2d 31 (Ten n. 199 3). In Adams , our supreme court stated that the relevant inquiry is not simply whether

the victim is under a specific age, but “whe ther the victim was particula rly vulnerab le be cause o f age or physical or menta l disability.” Id. at 35 (em phasis in original). The State has the burden of establishing the limitations that render the victim “pa

rticular ly vulnerable,” id. , as well as the b urden of proving that “the condition

which re ndered t he victim ‘particularly

vulnerable’ was a factor in the commission of the offe nse.” State v. Butler , 900 S.W.2d 305, 313 (Ten

n. Crim. Ap

p. 1994). We believ e that the State sati sfied its burden here. The record established that the victim was taken into the Combs ho useho ld at the age of approximately five months old. Thus, she grew up believing the Def endants to be her parents, and she ha d no other experiences upon which to base an o pinion abo

ut what is p

roper be havior in a family or about the differences between right and wrong. This ignorance effectively impaired her ability to summon
as si st an ce or to ev en kn ow th at sh e r eq ui re d i t. Pu t a no th er wa y, if the Combs had not absconded withEsther

at such a you ng ag e, their

subseque nt confinement an d abuse of her might not have been-76-

possible. He nc e, we fi nd he r v ul ne ra bi li ty, cultivated almost from birth and endured throughout her life, was a factor in the commission of the offense. See also State v. Lew is , 44 S.W.3d 501, 505 (Tenn. 2001) (use of enhancement factor ( 4) is appropriate if thefacts show that “the vulnerabilities of the victims . . . had some bearing on, or som e logical connection to, ‘an inability to resist the crime, summon help, or testify at a later date.’” (citations omitted)).

Defendant

further argues that the tr

ial cour t did not give the proper weight due the mitig ation factors presented in his case. Defendant contends that his criminal record, which c ontains no prior convict ions, his “goo d work his tory ,” and the contribu tions he ha s made to “ society at larg e as a teacher and minister,” effectively offset the enha ncement factor s deemed

appropr iate by the cour t. We disagree, noting that the weight given to each factor is left to the discretion of the trial court as long as the trial court complies with the purposes and principles of the sente ncing a ct and its f indi ngs are supp orted by the record, as occurred in this case. State v. Mo ss , 727 S.W.2d 229, 238 (Tenn

. 1986). Th

is argu ment is without merit.
Turning to Defendant

Evangeline Combs, the record reflec ts that the trial court applied the following enhancement factors to her sentence for especially

aggravated kidnapping: (1) “[t]he defendant has a pre vious histo

ry of crimin al convictions or crimin al behav io r in additi on to those
necessa ry to establi sh the appropriate range”; (2) “[t]he defendant was a leader in the commission of an offense involving two (2) or more criminal acto rs”; (4) “[a] victim of the offense was particularly

vulnerable because of ag e or physica l or mental disability”; and (15) “ [t]he de fendant abuseda position of public or private trust.” Ten n. Code Ann. § 40-35-114(1), (2), (4), and (15) (1997). The trial court thenseparately considered

the sente nces for the four aggr avated c hild abuse convictions (counts 7 through 10). As to count 7, the trial court applied enhancement factors (1) and (15), see supra , in addition to enhancement factor (18), appropriate where “[a] victim [of aggravated child abuse] suffered permanent impairment of either physica

l or mental functions as a result of the abuseinfli cted.” Id. § 40-35-114(18). For counts 8 and 9, the trial court utilized enhancem en t factors (1) and (15), and, with regar d to count 10, the trial court applied enha n cement factors (1), (1 5), and (2), see supra . As mitig ating c ircumsta nces, the trial cou rt consid ered but gave “ littl e ” weight to Defendant’s la

ck of a pr ior crimi nal rec ord and th e fa ct that she was “intelligent” and possessed some skills which could assist with rehabilitation. See id. § 40-35-113(13).

Defendant

Evangeline Combs contends that enhancement factors (1), (2), (4), (5), (15) and (18) do not app ly in

her case. Her arg

uments concerning the application of factors (1), (2), and (4) to her sentencefor especially aggr avated k idnapping are ess entially

identica l to those presented by the co-defendant, Joseph Combs. Pursuant to his arguments, we found that a trial court may utili ze previous criminal

behavior , which di d not result in a conviction, to enhance a defendant’s sentence; bothDefend ants in thiscase co uld be logically

construe d a “lea

der” in t he comm issio n of the kidnapping offense; and the victim was particularly vulnerable due to age, res pective ly. These findi ngs apply

equally to the issues raised by Eva ngeline Combs. The trial court used factor (2) to also enhanc e Evang eline’s s entence for the a ggra vated ch ild abuse conviction in count 10, based on proof that Defendant enlisted theassistance of James and David Combs to hold Esth er in pla ce while she beat her with a baseball bat. We find nothing improper in this application.-77-

Rega r ding enhancement factor (15), applica ble where the defendant abused a position of private trust, we find use of the factor appropriate w here the defendant occupies the position of parent, even if the position was attained by fraud as demonstrated here. See State v. Kissinger , 922 S.W.2d 482, 488 (Tenn. 1996) (application of the factor requires finding that defendant occupied a position of trust, either public or private, e.g., the position of parent, step-pare nt, babysitter, teac

her, coach). Ostensibly, Defenda nt was one of Esther’s adoptive parents (and she ha s even argued as much in other issues in this appeal).

Enhancement

factor (18), applicable where “ [a] victim, under § 39-15-402 [aggravated child abuse and neglect], suffered permane ntimpairment of either physic al or mental functions as a res ult of the abuse inflicte d,” Tenn . Code Ann . § 40-35- 114(18), is also appropriate. The trial court used this factor to enhance Defenda nt’s sentence for count 7, an offense wh ich clea rly resulted in the permanent

impairment and disfigurement of Esther’s left

elbow and arm. Defendant contends that application of this factor constitutes double enhancement, prohibited under State v. Bingham , 910 S.W.2d 448 (Ten

n. Crim . App. 1995). We find nothing in Bingham to support Defendant’s argument against application of this factor. Moreover, a plain re ading o f the lan guag e infactor (18) indicates that the legislature purposefu lly designed factor (18) to enhanc e this offense.

Defendant’s argument that the trial court failed to give proper weight to the mitigation factors presented in her case is likewise without merit. Defendant contends that her c h aracter, h abits,
me nt al it y, propensities andactivities indicate she is unlikely to commit another c rime, and that the trial court erred by

finding that her lack of criminal recor d, devotion to fam ily, and potential for rehabilitation did notoutweigh the enhancement factor s. We disag

ree. Sinc e the we

ight gi ven to eachfactor

is left to th

e dis cretion of the trial court, as long as the trial court complies with the purposes and principles of the sentencing act and its findings are suppor ted by the rec ord, as occurred here, we will not modify the sentences.

B. Consec

utive Sent

encing

At the conclusion of the sentencing hearing , the trial court imposedthe following sentences
o n Defendant Joseph Combs: twenty-two y ears for count 1, the especially aggravated kidnappin g conviction; five yea

rs for count 2, the aggra

vated a ssau lt conviction; two years for count 11, the aggravated

perjury c onvict ion; twelve years f or count 12, the aggrava

ted rape conviction; and ten yearseach for counts 13 through 19, Defendant’s seven rape convictions. The tr ial court then found that c onsecuti v e sentencing was appropriate ba sed on its finding that (1) Defendant was “a da ngerous off ender whose behavior indicates little or no regard f or human life and no hesitation a bou t committing a crime in which the risk to human life is high,” Tenn. Code Ann. § 40-35-114(4); and (2) Defendant was convicted of two or more statutory off

enses involving sexual abuse of a minor, Tenn. Code Ann. § 40-35-114(5). The latter factor requir es the court to also consider the aggra vating circumstances arising from other factors, including the relationship between Defendant and the victim, the span of undetected sexual activity , the nature and scope of the sexual acts, and the extent of resid ual, p hysical a nd men tal da mage to the victim. See id. The trial court ordered Defenda nt’s sentences for coun

ts 1 and 12 t

hrough 19 to be se

rved con secutive

ly to eachother, with the sentences-78-

for counts 2 and 11 to be served concurrently with the sentence for count 1, for an effective sentence of 114 year s.

For Defendant Evangeline Combs, the trial court imposed a se ntence of twenty-two y

ears for count 1, the especially a

ggravated kidnapping

conviction; eleven ye ars each for counts 7, 9 and 10, thre e of the fou r aggravated c hild abuse convictions; and ten ye ars for count 8, the remaining aggravated

child abuse conviction. The trial cou rt then or dered a ll sentenc es to run c onsecuti vely for a sentence of sixty

-five y ears ba sed on its f

inding th at D efe ndant was a “dangerous offe nder.” See Tenn. Code Ann. § 40-35-114(4) (1997).

Both Defendants contend that consecutive sentence s were not proper beca use the Defe

ndants
were not “the kind of offender envisioned in State v. W ilkerson , 905 S.W.2d 933 (Tenn. 1995).” We disagree.

In Wilkerson , our supreme court stated that “[p]roof that an offen der’s beha vior indicated littleor no regard for hu man life and n o hesitati on about c ommitting a crime in which the risk to human life washigh, is p

roof tha t the offe nder is a dange rous off ender, but it

may not be sufficient to sustain consecutive sentences.” Wilkerson , 905 S.W.2d a t 938. The

supreme court sta ted that, prior to imposing consecutive sentences, “the proof must also establish that the terms imposed ar e reasona bly related to the sev erity

of the of fenses c ommitted a

nd are ne cessar y in order to protect the public from further criminal acts by the offender.” Id.

The limits of

the holding in Wilkerson were la ter clar ified in State v. Lane , 3 S.W.3d 456, 460 (Tenn . 199 9), wherein the supreme court stated that, befor e consecutive sentencing may be imposed based on

dange rous off ender st atus, th e Sentencing Ac t require s that “pa rticular facts” exist, “which show that

consecutive sentencing is ‘reasona bly related to the se

verity of the offenses’ and
serves to pro tect society ‘f rom further . . . aggra

vated criminal conduct.’” Id. at 461 (quot in g Wilkerson , 905 S .W.2d at 938. Then, “[i]n order to limit the use of the ‘dangerous offender’ category to caseswhere s uch ‘par ticula r fac ts’ exist, . . . sentencing cou rts must ma

ke speci fic findi ngs regardi ng the severity of the offenses and the necessity to protect society be

fore ordering consecutive sentencing under Tenn. Code A nn. § 40-35-115(b)(4).” Id.

Acc ording to the re cord, wh en consid ering c onsecuti ve sente

ncing f or Joseph Co mbs, th e trial court noted the mandates set forth in Wilkerson and specifically concluded that the proof

was certain ly sufficient to fi nd tha t (1) Joseph Combs was a “dangerous offender,” (2) a consecutive sentence in his case would be reasonably related to the crimes committed, and (3) that a consecutive sentence was necessary

to protect

the public. The trial court elaborated further in its discussion of consecutive sentencing for Evange l ine Combs, finding that the serious nature of the offenses, the number of offenses committed, and the fact that the victim was unable to “get aw ay” c onstituted a “dangerous mix” which the court found sufficient to classify her as a dangerous offe

nder. We agree that the proof established the Defendants’ behavior indica ted little or no regard for human life, that the sentenc es impose d are re asonably related to the severity

of the crimes committed in this case, and that they are necessary

to protect the pu bl ic . C on se qu en tl y, consecutive sentences are proper under-79-

the statutory proviso for dang erous offende r and und er the ma ndates se t forth in Wilkerson and Lane

. “Sentencing is inescapably a human process that neither can nor should be reduced to a set of fixed and mechan ical rule s. ” Wilkerson , 905 S.W.2d at 938 (citation omitted). Here, the trial court fo llowed the statut

ory sentenc ing proc edure, imposed a l awful se ntence a fter g ivin g du e consideration and proper weight to the factors and pr inciples set

out under sentencing law, and made findi ngs of fact

which we

consider adequa tely supporte d by

the rec ord. Thus , we findno abuse of discretion in this matter and shall not modify the sentenc e.

We concur with the trial court that consecutive senten cing is further proper in the case of Joseph Combs base d on the fa ct th at Defendant was convicted of two or more sta tutory offense s involving sexual abuse of a minor, Tenn. Code Ann. § 40-35-114(5). This factor allows the court to also consider the aggra vating circumstances arising fr om various fact ors, incl uding the relation ship between Defendant and the victim, the span of un de te ct ed se xu al ac ti vi ty, the nature and scope of the sexual acts, and the extent of residual, physica l and mental damage to the victim. The statement given by Esther during the sentencing hea ring and the record amply support consecutive sentenc es based

on these c ircumsta

nces. In particular, we note as especially

egregious the span of undetected

cri mi nal sexual activity and the residual, phy sical, and mental damage inflicted upon Esther by Defend ant’s actions.

In his brief, Joseph Combs also argues that the trial co urt erred when it se ntenced him withoutbenefit of the evaluation required by Tennessee Code Annotated section 39-13-705(b). Defendant

asserts that

this evaluation may have impac ted the trial court’s decision s rega rding te rm, probation, alterna

tive sente nces, and/or split confinement, an “advantage”to which he was entitled
as a matter of law. The 1998 amendment to this statute demonstrates the legisla ture’s in tent to limit this provision to those sentencing decisions where the defe ndant is seeking probation or some other form of alternative sentence. See id. § 39-13-7 05(a) ( Supp. 2001) . Defen dant is not presume d to be a favorable candidate for a lternative sentencing, based upon his seven Class B a nd two Clas s A felony convictions. See id. § 40-35-102(6) (1997). Thus, evidence to rebut the presumption was not
ne ce ss ar y. Neither

is he a ca ndidate for probation, since seven of the nine sentences imposed we re for terms more than eight years. See id. § 40-35-303(a). (The two sentences less than e ight yea rs are to be served c oncurre

ntly to the twenty-two y

ear sentence for

th e k id na pp in g c ha rg e. ) F in al ly,
as the Statepointed out in its brief, where a sex offender is destined to be incarce rated regardless of the contents of the report, a trial court’s failure to consider it at

the time of sentencing is immaterial and a waste of resources. See State v. Daniel Lovell Brown , No. 03C01 -970 9-CC- 00410 , 1998 WL 798922, Jefferson County (Te nn. Crim. App., Knoxville, Nov. 12, 1998), perm. to app. denied (Tenn. 1999) (“Because a sex offende r sentenced

to the Department of Correction will be evaluated
once in its custody, any

evaluation at the trial level of an offender inelig ible for pro bation or any other alternative sentence would constitute a duplication of professional a nd financial resources.”).

In conclusion, our de novo revi ew of t he record concerning the Defendants’ sentencing reveal s that the trial court did not err in its utilization of sente ncing f actors. Thus, we find th

e lengt h of both Defendants’ sentences appropriate. We a lso conclude that the trial court di d not err in ordering consecutive sentences. The resultant length of confinement is j ustified in this cas e to-80-

protect the public from future cr im inal conduct. Further, because of the e gregious nature of the offenses committed by the Defendants, the inestimable harm to the victim, and the significant span of time involved, we believe that consecutive sentences ar e reasonably

related to the severity of the crimes. Since the Defendants have failed to car ry their burde

n to show that the trial court’s sentences were improper, no relief will be forthcoming on this issue.

X. Statut

e of Limit

ations

Defendant

Joseph Combs contends that his convictions for aggrav ated rape and six of the
seven counts of

rape sho uldbe reve

rsed as b arred b y the applic able statute of limitations. Defendant argues that the f

acts alle ged in th

e prese ntment we

re in suf ficient to meet the strict tolling require ments set forth in State v. Davidson , 816 S.W.2d 316 (Tenn. 1991), and that the State also failedto prove the al lega tions at trial. Consequently, Defenda nt maintains that the statute of limitations was not properly tolled a nd, thus, the convicti ons in issue violate h is constitu tional rig hts. The State asserts that the statute of limitations concerning these offenses was effectively tolled by the allegations of concealment contained in the pre sentment, when viewed as a whole, and that the allegations were adequately proven at trial, as dem onstrate d by Defend ant’s co nviction f

or espec ially aggravated

kidnapping. In his reply brief, Defendant further asser ts that the i ssue whet her concealment

was proven is a question of fact for the jury , and the trial court’s failure

to submit this issue to the jury

through proper instructio ns constitu ted plain error under Rule 52(b) of Tennessee ’s Rules of Criminal Procedure.
A. Tolling of t

he Statute

of Limita

tions

Counts 12 through 19 are the subject of this issue. Count 12 alleges that De fendant Joseph Combs committed the offense of aggr avated rape of

Esther, a child under

the age of thirteen, on or about April 1989 , a violat

ion of Ten

n. Code An

n. § 39-13 -503. Coun

ts 13 throu gh 19 all ege tha t Defendant

committed the offense of rape, by means of force or co ercion, and t hat thereafter, Defendant

“did conc eal the e

xistence o f the cr

ime by confining Est

her A. Com

bs within hi s residence, contrar

y to Section 39 -13-503, a Class B felony, Tenne ssee Code Annotated . . . .” The
r ape counts allege the following dates, in order , beginning with count 13: November 16, 199 0 ; summer months of 1995; June 16, 1991; November 25, 1993; November 16, 1993; February 14, 1991; and February

4, 1992, all of which occurred on or after Esthe r’s thirteenth birthday

and prior to her eighteenth birthday . In Tennessee, a prosecution may be

commenced

in one of ma ny w ays inclu ding, as here, the finding of an indictment or presentment. See Tenn. Code Ann. § 40-2-104 (1997). The presentment in this case is dated November 4, 1998, a nd t he applicable statute of limitations for the rape co unts 13 through 19 is four y ears. See id. § 40-2-101(d). As a result, the rape alleged to have been committed during the “summer months of 1995" (count 14 ) is the o nly crime that occurred within four years of the date o f the presentment. In his brief, D efendant concedes that count 14 is not time-barred.

The purpose o f a statut

e of limita

tions is to pr

otect a defenda nt against delay and the

use of stale evidence and to provide an incentive for e fficient prosecutorial action in criminal cases. See-81-

Statev. Pearson , 858 S.W.2d 879, 886 (Tenn.1993). The applicable statute of limitations for charges of rape and aggr

avated rape, where the vic tim has not r eached the age of majori ty, is contain

ed in Tenness ee Code A

nnotated section 4 0-2-101 a

nd provide s as follow s:
Prosecutions for any

offense committed

agains t a child prior to July 1, 1997, that constitutes a crimina l offense unde r the prov ision s of § § 39- 2-60 1 [rep eale d], 39-2-603 [repealed], 39-2-604 [repealed], 39-2-606 [repealed], 39-2-607 [repe aled ], 39-2-608 [repe aled ], 39-2 -612 [repe aled ], 39- 4-30 6 [rep eale d], 39-4 -307 [repe aled ], 39-6-1137 [repealed], or § 39-6-1138 [repe ale d], or under the provisions of §§ 39-13-502--39-13-505, § 39-15-302 or§ 39-17-902 shall commence no later than the date the child attains th

e age of majori

ty o r within f our (4) y ears next after

th e commission of the offense, whichever occur s later; pr ovided, th at pursua

nt to subsection (a), an offense punishable by life imprisonment may be prosecuted at any time after the offense shall have been committed.
Tenn. Code Ann. § 40-2-101(d)(1997) (emphasis added)

. First, we note that the crime of agg ravated rape was codifiedas Tennessee Code Annotated section 39-2-603 in April 1989 and that it was “a felony punishable by imprisonment in t h e penitentiary

for life or a period of

not less than twenty (20) y ears.” See id. § 39-2-603(b) (Supp. 1988). Conseque

ntly , the appl

icable s tatute

of limitations does not bar prosecution of Defendant for that offense. See id. § 40-2-101(d) (1997); Loy Monroe H arris v. State , No. 02C01-9304-CC-00069, 1994 WL 29835 at *1, Madison County (Tenn. Crim. App., Jackson, Feb. 2, 1994), no perm. to app. filed (where the punishment for the convi cted off

ense provided imprisonment from ten yea rs to life, prosecution was not time-barred because a crime that authorizes life imprisonment has no limitation period under Tennessee Code Annotated Section 40-2-101)

.
As for the remaining rape convicti ons, the Sta

te does not dispute

that more than four y ears had elapsed between the dates of the offe nses andthe filing of the presentment in this case (with the exception of count 14 as noted above). The record reflects that Defe ndant raised the issue whether the rape chargeswere time-barred prior to trial. There fore, the issue presented here is whether the statute was effectively

tolled for a sufficient peri od of time to a llow lawf ul prosec ution for these crimes.

Tennessee Code Annotated section 40-2-103 provides that “[n] o period, during which the party charged conceals the fact of the crime , or during which the party charged was not usually

and publicly resident within the state, is inc lu ded in th e pe rio d of li mi tat io n.” (Em pha si s ad ded .) In Statev. Davidson , 816 S.W.2d 316 (Tenn. 1 991), the state alleged that the defendant’s threa ts and coercion directed toward the child victim constituted concealment under the tolling provision. Id. at 318. On ap

peal, our supreme court considered the issue of what allega tions of specific facts mus t be contained i n t he indictment or presentment to properly toll the applicable statute of limitations to render the prosecution timely where the indictmen t or presentment shows on its face that the statutory limitation period has since expi red. Id. at 318. The presentment at issue in Davidson-82-

alleged that th e defendant had c oncealed his criminal activ ities by discoura ging th e victim to

tell anyone through use of threats and parental influenc e, which was additionally intimidating beca

use the vi ct im wa s p ar ti cu la rl y de pe nd en t o n h er fa mi ly s in ce sh e w as le ga ll y b lind. See id. In its conclusion, the cour

t stated th at it was u

nable to “read the languag e in the amendments to the present ments and say that for

a certain period of time sufficient to render the pre s entments t

imely that the fact of the alleged crimes w as concealed by the defendant.” Id. at 321. S pecifical ly, the court noted that the state failed to allege when the c oercion occurred, when and if it ceased, when the alleged crimes were first re ported to the authorities, or why the alleged

victim did not report the abuse upon attaining the age of ma jority. Id.

We must first determine whether the presentment contained suff icient allegations of

specific facts to effe ctively

toll the ap

plicable statute of limitations . In a

ddition to a

lleging the spec ific facts which toll the statute, the state must prove the facts at trial or the accused cannot be convicted of the offense. Id. at 318 ; Morgan v. State , 847 S.W.2d 538, 542 (Tenn. Crim. App. 1992). Defendant Joseph Combs contends that the facts alleged by the State in the p resentmen t concerning the rape offenses were inadequate to properly toll the statute of limitations under the strictrequirements set forth for such purpose in Davidson and, further, that the State failed to prove the tolling f acts at tr ial. We disagree.

The circumstances presented in Davidson are distingu ishable from those

present ed in the c ase sub judice . The Davidson court noted that the state failed to al lege w hen th e coercion occurred. Here, the comme

ncement of the co ncealme

nt by confine ment, as well a s the date

it terminated, was specified in the pre sentment. Count 1 allege d that Def endant continually confined the victim from April30, 1990 until October 3, 1997. Counts 13 through 19 alleged that Defendant “did conceal the existence of the crime by conf ining Esthe r A . Combs within his r esidenc e.” Unde

r certa in circumst ances, it is proper that

“all counts of a

multiple-count indictment should be read as a whole, and element missing from one count can be supplied by another.” State v. Cureton , 38 S.W.3d 64, 82 (Tenn. 2 000) (citation omit ted) (wh ere all o f counts in an indictment ref erred t o the same

victim, set out the same date, and were related to ea ch other, the court found they may be read together for purposes of providing notice to the defendant); see State v. Youngblood , 287 S.W.2d 89, 91 (Tenn. 1956) (“diffe

rent cou nts may , within

themselves, not support an indictment but if they

are pro perly connected

withpreceding counts then the two may be taken together

and support an indictment”); Hayesv. State , 513 S.W.2d 144, 146 (Tenn. Crim. App. 1974) (where second count of an indictment chargingdrug possession stated only “the af oresaid controlled substance” and failed to specif y the drug, the indic tme nt was not d efectiv e). Altho

ugh the se case s concer

n the state ’s failur

e to complete ly allege all of the elemen ts in an offense, we see no reason that the principle should not apply also to allegations concerning tolling fa cts under circumstances similar to t hose presented

here.

The court in Davidson

also expressed concern about the fact that

the presentments did not reveal when the alleged crimes were fi rst repo rted tothe autho

rities, or why the alleged victim d

id notreport the abuse upon attaining the age of majority. Id. at 321. In Davidson , the late st offen se charged allegedly occurred in June 1981. The presentments were retur ned in November 1987, more than six ye ars afte

r the most r

ecent c rimeand a

ppro xi mately four y

ears and five months after the-83-

alleged victim reached adulthood (which occurred in June 1983). In the case sub judice , the victim reached adulthood on November 16, 1995, during her unlawful confinement. The presentment was returned on Novemb er 4, 199 8, one y ear and one day after her conf

inement te

rminated . These f

acts
wer e not alleged in the presentment but, in contrast to Davidson , the per iod of time

was no t
unreaso nable

or so lengthy

as to rais e lo gi ca l s us pi ci on s a bo ut wh at co ul d h av e c au se d s uc h a de la y. Co ns eq ue nt ly, information concerning exactly when the crimes were first reported to the a uthorities and why the victim did not report the c rime at the age of majority was not necessary

here.

We are mindfu l that statut es of limitations should be liberally construed in fa vor of the criminally

accused, and prov is ions tolling the statut

e during periods o f conce alment ar e strictl y c onstrued against the state. State v. Henry , 834 S.W.2d 273, 276 (Tenn. 1992). E ven so, w e conclude that the a

llegat ions conta

ined in the pres entment, as a whol e, provid ed suffi cient specific facts to p ro pe rl y p lead concealment and thus toll the statute for the rape off enses for a sufficient period of time to render the presentments timely . Moreover, we find that the jury , by i ts verdic t agains tJoseph Combs on the especially agg ravated kidnapping charge, necessarily found beyond a
reasona ble doubt that the State proved at trial that Defendant concealed the fa ct of the rape crimes.
B. Failure to Instruct Jury

In his reply brief, D efendant further submits that the issue whether concea lment was proven is a q ue st io n o f f ac t f or th e j ur y, and the trial court’s failure to instruct the jury on how the

y should consider the tolling facts constitutes plain error under Rule 52(b) of Tennessee’s Rules of Criminal Procedure. Although the record reflects that De fendant Joseph Combs was given an opportuni

ty to request special instructions andto review the jury charge for the purpose of raising objections prior to the trial court’s instructing the jury , Defendant failed to do so. Defend ant also f ailed to include this issue in his motion for new trial. It is well-settled that a trial court has a duty to give a comple te charge of the law applicable to the facts of the case a nd the defendant has a right to have ea ch issue of fact ra ised by the evide

nce and materia l to his def

ense subm

i tt ed to the jury upon prope r instructions by the

judge. State v. Thompson , 519 S.W.2d 78 9, 792 (Te nn. 1975) ; Poe v. State , 370 S.W.2d 488, 489 (Tenn. 1963). The trial court is obligated to givethe jury instructions conce rning issues fundamental to the defense and essential to a fair trial, even where a special request was not made at trial concerning the issue. State v. Anderson , 985 S.W.2d 9, 17 (Tenn. Crim. App. 1997). Our supreme court ha s intimate d that the protect ion aga inst prose cution pr

ovid ed by a statute of limitations does not r

ise to the level of a fundamental right. See State v. Pearson , 858 S.W.2d 879, 887 (Tenn. 1993). In the abse nce of a special request concerning non-fundamental issues, the trial court does not err

by f ailing to instruct the jury, even if

the circumstances of the case war rant such
an instructi o n. Anderson , 985 S.W.2d at 17. In the instant case, it became Def endant ’ s responsi bility to submit a specia l reques t for the t

rial cou rt to instr uct the ju ry on tolling

facts when the trial court’s failure

to do so bec ame appa

rent. Hisfailure

to submit suc

h reques t, or to raise the issue in a motion for new trial, would therefore result in waiver of this issue on appeal. See id.
Notwithstanding waiver, in certa in circu mstance s a revie

wing court is allo wed to take notice of “plain errors” that were

not raised in the proceedings below. See Tenn. R. A pp. P. 36(b); Tenn.-84-

R. Evid. 103(d); Tenn. R. Crim. P. 52(b). Specific guidance is not provided in any of these rules as to wh en an error will rise to the level of plain error. I n general, the error must have a ffected t h e substantial rights of anaccused, and more probably than not either affected the judgment or r esulted in prejudice to the judicial process. “Whether or not an appellate court should recognize the error and grant relief in the absence of anobjection in the trial court must depend upon the facts and circumstances of the particular case .” State v. O gle , 666 S.W.2d 58, 61 (Tenn. 1984).

In State v. Smith , 24 S.W.3d 274 (Ten n. 2000), our supre

me court adopted the following five factor s, previous ly

developed by a

panel of this Court, for the purpose of deciding whether an error constitutes “plain

error” in theabsence

of an objection at tr

ial: “(a ) the re cord must

clearly establish what occurred in the trial court; (b) a clear and unequivocal rule of law must have been brea ched; (c) a substantial right of the accused must have bee n adversely

affect ed; (d) the accused did not waive the issue for tactical reasons; and (e) consideration of the error is ‘nec essary to do substantial justice.’” Id. at 282 -83 (q uoti ng Stat e v. Adkis so n , 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994)). The pre sence of

all five factors must be established by the record before the reviewing court may recognize the existence of plain error, and c omplete consideration of all the factor s is not necessary when it is clear from the record that at least one of the factors cannot be established. Id. at 283. I n addition , the “‘p lain err or’ must [ha

ve been ] of such a

great magnitu de that it p

robably changed the outcome of the trial.” Id. (quot ing Adkisson , 899 S.W.2d at 642).

A thoro ugh review o f the re cord reveals that the plain error doctrine can affor d no relief for Defendant

in this cas e. The th

ird and f ifth factors, requiring that a substantial right of the accused must have been adversely

affected and

that consideration of the error is necessary to do substantial justice, respectively , preclude a findin g of plain error. We do not decide now whethe r Defendant
wa s entitled to a jury instruction conce rning whether the statute of limitations was tolled b y concea lment. Howeve

r, even i f this were decidedly

so, and the ju

ry receiv ed such a

n instruc tion, it would not have affected the result of the trial on De fendant’s rape charges. We previously concluded that the jury’s ver

dict on the especially a

ggravated kidnapping

charge effectively decided this issue in favor of the State. Specifically, we concluded

that by finding De

fendant guilty

of this offense, the jury necessarily

determined bey ond a reasonable doubt that Defendant conce aled the fact of the rape crimes, and, thus, the statute for the rape offenses was tolled for a sufficient period

of time to render the present

m ents timel y . Consequently, neither is consider ation of the error necessary “to do substantial justice.” Def enda nt’s constitutional rights to a fair trial and to jury instructions concerning issues fundamental to his defense ha ve not been violated.

In conclusi on, we fi nd that th e statute of limitations concerning the rape offenses w as effec tively

tolled by the alleg ations of confinement contained in the presentment, as a whole, a nd that the allegations were proven at trial. Consequently , Defendant’s six convictions for rape do no t violate his constitutional rights prohibiting conviction for a time-barred crime. Because we also find that the failure to instruct the jury on the tolling issue did not constitute plain error, Defendant is not entitled to relief on this issue.-85- XI. Modification of Judgm ent

Our review has revealed a number of clerical errors in the

judgments for both Evangeline and Joseph Combs. With regard to the especially aggravated kidnapping

convictions, the jud gment forms reflect that the Defendants were convicted of the offense in Tennessee Code A nnota ted section 39-13-301. The correct statute section number for this offense is 39-13-305. In add ition, the judgment form for the aggravated r

ape conviction of Joseph Combs cites the current statute section number for this offense. The judgment form should reflect the statu te section number in effect at the time the offense was committed: 39-2-603. We order that the judgments be modified to reflect the changes noted herein.

CONCLUSION

For the foreg oing re asons, we revers e Defendant Joseph Combs’ conviction for aggra vated perjury and remand the matter for a new trial on that cha rge. In addition, we modify the judg ments as stated in this opini on. I

n all othe r respe cts, we A

FFI RM the judgments of th

e trial c ourt.

____________________________________ THOMAS T. WOODALL , JUDGE