# FILED

March 23, 1999 Cecil W. Crowson Appellate Court Cle rk IN THE COURT OF CR IMINAL APPEALS OF TENNESSE E

AT NASHVILLE SEPTEMBER 1998 SESSION

STATE OF TENNESSEE, * C.C.A. # 01C01-9711-CR-00515

Appellee, * MACON COUNTY VS. * Hon. J. O. Bond, Judge LELAND RAY REEVES, * (Four Counts of Statutory Rape; Rape)

Appellant. *

For Appellant : For Appellee : John E. Herbison John Knox Walkup 2016 Eighth Avenue South Attorney General & Reporter Nashville, TN 37204 (on appeal) Timothy Behan Assistant Attorney General Jerry Hunt Criminal Justice D ivision East Main Street 2nd Floor, Cordell Hul l Building Lebanon, TN 37087 425 Fifth Avenue North (at trial) Nashville, TN 37243-0493 John Wooten Assistant District A

ttorney General 203 Greentop Street P.O. Box 178 Hartsville, TN 37074 OPINION FILED:_____________________

AFFIRMED IN PART; REVERSED AND DISMISSED IN PART

GARY R. WADE, PRESIDIN G JUDGE2 OPINION The defendant, Leland Ray Reeves, was convicted of four count s of statutory rape and one count of rape. The trial court imposed senten ces as follows:

Count Offense Sentence 1 statutory rape one year 2 statutory rape one year 3 rape eight years 4 statutory rape two years 5 statutory rape two years Count five is to be served consecutively to the remaining counts for an effective te rm of ten years.

In this appeal of right, the defendant presents the following issues:

(I) whether the evidence i s sufficient to support the convictions; (II) whether venue has been es tablished for the rape conviction; (III) whether the statutor y rape convictions should be reversed and dismissed because the defendant was never indicted for those offenses; (IV) whether the statutor y rape convictions are bar red by the statute of limitations; (V) whether the trial court erred by denying the defendant's motion for a bill of particulars; (VI) whether the trial

court erred by allowi ng the victim to testify on redirect about prior bad acts outside the time frame of the indictment; (VII) whether the trial

court erred by admitti ng "freshcomplaint" statements made by the victim; (VIII) whether prosecuto rial misconduct requi res reversal; and (IX) whether the sentence i s excessive.1 It is the policy of the cour t not to reve al the nam es of mino rs w ho ar e vict ims o f sex ual abuse. 3

We affirm the rape conviction; we must, however, reverse and dismiss each of the four convictions for statutory rape.

In 1991, the defendant and his wife, Kathy Gale Reeves, and her thr ee daughters moved from Indiana to Macon County, Tennessee. T he victim, E.M., 1 who was one of Ms. Reeves' daughters and was born Novem ber 5, 1977, was in the seventh grade. At the time, the family first liv ed in a camper and later m oved into a trailer in a wooded area ow ned by the defendant's mother.

In May of 1991, the defendant and the victim went to his mother's trailer to use the telephone. While there, the defendant took the victim into the bedroom, removed her clothing, and had sexual intercour se with her. Afterward,the defendant warned the victim not to tell her mother becaus e "it was a private thing between [them]."

A second incident occurred in the late summer of 1991 j ust after the victim entered the eighth grade. The defendant had sexu al intercourse with her in the camper. A third incident occurred in the spring of 1992, shortly after the victim had been baptized. The victim had gone for a walk. The defenda nt followed her into a neighbor's barn. Wh en the defendant began to remove the v ictim's clothing, the victim protested becaus e, she explained, she liked a neighbor who lived nearby and did not want to be discovered. When the defendan t replied that their relationship was their "little secret," he was abl e to engage her in sexual inter course.4 A fourth incident occurred in the fall of 1992 after the victim began her ninth grade in school. The victim testified that the defendant stop ped his vehicle in a field en route to a meeting with Ms. Reeves. He th en removed the victim's pants and digitally penetrated the v agina of the victim. Ms . Reeves approached the vehicle and when the defendant orde red the victim into the ba ck seat of the car, she asked for an explanation of why they were parked in the mi ddle of the field with the car lights off. The defendant claimed they had fallen as leep. The victim hid th e truth because, she explained, she was afraid of the defen dant. At trial, the victim testified that she first informed her mother of the incidents only after Ms.Reeves separated from the defendant. She stated that she feared the defendant due to his abusive nature.

A fifth incident occurred in March of 1993, shortly before Ms. Reeves separated from the defendant. On that occasion, the defendant directed the victim to remove her clothes, afte r which she performed or al sex.

Ms. Reeves, who divorc ed the defendant in 1994, testified that the defendant often objected when all three of her daughters joined her on errands. She recalled that the defendant complained that he was "lonesome" without at least one of her daughters and that the defend ant was alone with the vic tim more often than with her other two daughter s. She specifically r

ecalled the incident when she discovered the defendant and the vi ctim parked in a field, describing them as "kind of flushed." Ms. Reeves tes tified that she suspected that the defendant was abusing E.M. and when she confr onted her, E.M. could not look at her. Ms. Reeves separated from the defendant in the early part of 1993 and later considered a reconciliation. It was

at that point that the victim informed her of the abuse.5 On cross-examination, M s. Reeves acknowledged that s he had disagreed with the defendant over the property settlement. She testified that she and her daughters moved away fr om the defendant in March of 1993 , that the sexual abuse allegations were made in May of 1993, and that she filed for divorce in December of that year.

Beverly Rosof, a family nurse practitioner employed by Our Kids Clinic where her primary duty was to evaluate claims of sexual abuse, determined dur ing an examination that the vagina of the victim had been penetrated in some manner. While unable to conclusively state that the victim had been sexually abused , she did testify that the damage to the victim's hymen was significant enough to ha ve warranted a report to the Department of Human Services.

The defendant testified that while his family utilized a telephone jack outside his mother's trailer, she would not allow anyone inside the trailer. He specifically denied ever having been alone with E.M. there. The defen dant also stated that he and Ms. Reeves s eparated for a short time i n April of 1992, reconciled, and then started a ttending a church where E.M.was baptized. The defendant testified that there w ere disagreements over fi nancial matters during th e divorce litigation, inc

luding a dispute over the fam ily trailer. The defen dant stated that he returned to Indiana in 1993 and did not learn that he faced any criminal charges until 1995.

Michael Reeves, the defendant' s son, testified that he shar ed a residence with the defendant, M s. Reeves, and Ms. Reeves' three daughters during the term of the marriage. He claimed that the living quarters of the family were so cramped that his father was never alone with the victim. The younger Reeves6 contended that on one occasion the vi ctim claimed to some students at school that she had engaged him in fellati o, an allegation he vehemently denied.

The defendant's mother, Mazel l Reeves, testified that af ter Kathy Reeves separated from the def endant in March of 1993, she spok e on the phone with her several time

s. She claimed that Kathy R eeves, who had a disagreement with the defendant over financi al matters related to the s ubsequent divorce, threatened to "get even" with the def endant. Mazell Reeves als o stated that she had barred the defendant's famil y from entering her trai ler because of a disagreement with Kathy R eeves.

I The defendant first claims that the evidence is insufficient because there was no proof of either force or coercion, requi site elements of the singl e rape conviction. He also conte nds that the victim was a n accomplice and that there w as insufficient corroborat ion to support three of the stat utory rape convictions.

We are guided in our analys is by several well-established principles. On appeal, the state is entitl ed to the strongest legitim ate view of the evidence and all reasonable inferences which might be drawn ther efrom. State v. Cabbage , 571 S.W.2d 832 (Tenn. 1978). The credibility of the witne sses, the weight to be given their testimony, and the reconciliation of conflicts in the evidence are matters entrusted exclusively to the jury as the trier of fact. Byrge v. State , 575 S.W.2d 292 (Tenn. Crim. App. 1978).A criminal conviction can be set aside only when the reviewing court finds that the "evidence is insuffic ient to support the finding by the trier of fact of guilt beyond a reasonable doubt." Tenn. R. App . P. 13(e). This court must not reweigh nor reev aluate the evidence; nor may we substitute our2 He does not chall enge the stat utory rape whi ch occurred whil e he and the vi ctim were parked in the car

in a fi eld. Appare ntly, the defendant concedes corroborat ion by the vi ctim's mother , who testified that the defenda nt and the victim we re "flushed ."

7 inferences for those drawn by the jury. Liakas v. State , 286 S.W.2d 856 (Tenn. 1956).

At the time of the offense, rape was defined as "unlawful se xual penetration of the victim by the defendant ... [where] [f]or ce or coercion is used to accomplish the act." Tenn. Code Ann. § 39-13-503(a)(1) . "'Force' means compulsion by the use of phys ical power or violence and shall be broadly constr ued to accomplish the purposes of this title." Tenn. Code Ann. § 39-11-106(a)(12). "Coercion" is defined as the "threat of kidnapping, extorti on, force or violence to be performed immediately or in the future or the use of parental, custodial, or official authority over a child l ess than fifteen (15) years of age." Tenn. Code Ann. § 39-13- 501(1).

The victim testified that as to count three, she infor med the defendant that she did not want to engage in s exual intercourse but that "he did it anyway." She also testified that she w as afraid of the defendant because he tended to be physically abusive. In our view, this evidence is sufficient to support the inference that the rape was accompli shed through the use of coercion . The record supports the conclusion that the vict im acquiesced to the sexual encounter because of the implicit threat of vi olence.

The defendant also complains that testimony of his participation in three of the statutory rapes was inadequately corroborat ed. 2 Rule 601, Tenn. R. Evid., provides that every witness is "presumed competent." Our law, however,3 In 1991, t his common law rule was modi fied by st atute to provide tha

t chil dren under the a ge of thirteen m ay not be conside red an a ccom plice in certa in sex-re lated offens es. See Tenn. Code Ann. § 4 0-17-12 1. 8 requires corroboration of the testimony of an accom plice before a conviction can stand. Marshall v. State , 497 S.W.2d 761 (Tenn. Cri m. App. 1973); see Rule 601, Tenn. R. Evid. That is, there must be some fact entirely independent of accomplice testimony which, taken by itself, leads to the infer ence that the defendant is guilty of the crime. The corrobor ative testimony must i n some way establish the i dentity of the defendant. Hawkins v. State , 469 S.W.2d 515 (Tenn. Crim. App. 1971). Such evidence may be direct or circumstantial and it

need not be adequate taken alone to support the conviction. Id. The requirement is met if the corroborative evidence fairly and legitimately tends to connect a defendant with the commission of th e crime charged. Stanley v. State , 222 S.W.2d 384 (Tenn. 1949); Henley v. State , 489 S.W.2d 53 (Tenn. Crim. App. 1972). Slight circum stances may be sufficient to furnish the necessary cor roboration. Garton v. State , 332 S.W.2d 169 (Tenn. 1960). Whether an accomplice's testimony has been suffici ently corroborated is a m atter entrusted to the jury as the t rier of fact. State v. Sanders , 842 S.W.2d 257 (Tenn. Crim. App. 1992).

Initially, we must agr

ee with the trial court that the victim was by definition an accomplice in each of the four statutory rapes, an offense which im plies consent on the part of the vict im. See generally State v, McKnight , 900 S.W.2d 36, 50 (Tenn. Crim. App. 1994) (the court reviewed a statutory rape conviction to see if the accomplice testimony was adequately corroborated) . If the minor consents to the unlawful sexual activi ty, she may be an accompli ce. See Britt v. State , 450 S.W.2d 48, 50 (Tenn. Crim. App. 1969). 3

The jury was instruct

ed that the victim was an a ccomplice and that her9 testimony would require corroboration. Dr. R

osof testified that the vagina of the victim had been penetrated. Al though she could not determine w hat type of penetration had occurred, the dam age to the hymen was signifi cant enough that she would have reported the resul ts of her examination to the Department of Human Services, even if the vi ctim had not informed her she had been sexually abused. Furthermore, Ms. Kathy Reeves testified that the defend ant always asked that one of the daughters remain with him when she left the res idence and that E.M. was left behind the most often. Corr oborative evidence need only be slight and may be circumstantial. In our

view, this testimony passes the test.

II The defendant next complains tha t venue has not been established for the rape conviction. He co ntends there is no proof that th e barn where the rape occurred is located in Macon County.

The accused has a right to a t rial by an impartial jury chosen from the county in which the crim e was committed. Tenn. C onst. art. I, § 9. See also Tenn. R. Crim. P. 18. Thus founded in the constitution, pr oof of venue is necessary to establish jurisdicti on. Hopson v. State , 299 S.W.2d 11, 14 (Tenn. 1957).Venue may be shown only by a prepond erance of the evidence. The st ate has the burden of proof to show that the offense was committed in the count y of the indictment. Harvey v. State , 376 S.W.2d 497, 498 (Tenn. 1964) ; Hopper v. State , 326 S.W.2d 448, 451 (Tenn. 1959). Slight e vidence, including circumstantial evidence, wil l be sufficient if the evidence is uncontradicted. State v. Bennett , 549 S.W.2d 949 (Tenn. 1977).

Here, the victim testi fied that the rape occurred i n a barn located on10 her neighbor Miller's property. The defendant testified that the Miller family paid his family to work in tobac

co. Checks written by the Millers indicate they lived in Macon County. That uncontested evidenc e, in our view, is sufficient to establish venue.

III The defendant next argues that the fou r statutory rape convict ions should be reversed and dism issed because he was indict ed for rape yet convicted of statutory rape, which is not a lesser offense of rape. The defendan t argues his situation is controlled by State v. Trusty , 919 S.W.2d 305 (Tenn. 1996). In Trusty , the defendant was charged with at tempted first degree murd er. The jury returned a verdict of aggravated assault. On appeal, our supreme court ruled tha t assault is not a lesser offense of attemp ted murder and thus, the defendant had been convicted of a crime for which he had never been charged.Our high court ruled that "[u]nder Tennessee law, a convi ction for an unindicted offens e that is not a lesser degree of the offense charged or a lesser included offense ma y not stand." Id. at 307. In response, the state conten ds that because the defendant requested the instructions on statutory rape, there was a construc tive amendment to the indictment.

Initially, the trial judge has a duty to give a comp lete charge of the law applicable to the facts of the case. State v. Harbison , 704 S.W.2d 314, 319 (Tenn. 1986). There is an obligation "to charge the jury as to all of the law of each offe nse included in the indictment,without any request on the par t of the defendant to do so." Tenn. Code Ann. § 40-18-110( a). "Pursuant to our statute, rule, and case law interpretations, defendants are entitled to jury instructions on all [lesser offenses], if the evidence would support a c onviction for the offense." Trusty , 919 S.W.2d at 311. Such a charge "allows the jury to consider all relevant offenses in determ ining11 the appropriate offense, if any , for conviction" and "more evenly balances the rights of the defendant and the prosecution an d serves the interests of justice." Id. It is only when the record is dev oid of evidence to support an i nference of guilt of the lesser offense that the tri al court is relieved of the responsibility to c

harge the lesser crime. State v. Stephenson , 878 S.W.2d 530, 549-50 (Tenn. 1994); State v. Boyd , 797 S.W.2d 589, 593 (Tenn. 1990).

In Trusty , 919 S.W.2d at 310, our suprem e court ruled as follows : Tennessee law recognizes t wo types of lesser offenses that may be included in the off ense charged in the indictment: offenses necess arily included in the indictment and offenses that ar e lesser grades of the charged offense. An offense is "necessarily included in the indictment ... only if the elements of the included offense are a subset of the elem ents of the charged offense and only if the greater offense cannot be committed without also c ommitting the lesser of fense." Id. Guidance was also provided as to how to determine whether an offense is a lesser grade or class o f the offense charged: "[o]ne need onl y look to the statutes to determine whether a given of fense is a lesser grade or class of the crime char ged." Id. at 310. By way of example, the court noted that the legisl ature has divided criminal homicide "into the grades of first-degree murder, second-degree murder, voluntary manslaughter, c riminally negligent hom icide, and vehicular homi cide." Id.

A significant question is whether statutory rape is a lesser offense of rape. It is not a lesser offense which is necessar ily included in the indi ctment because statutory rape contains elements not included in rape ; that is, the victim must be under age and there must be a four-year age difference be tween the victim and defendant. Whether it is a lesser grade, however, presents a more difficult determination.4 In 1992, our legisl ature created the separate offense of rape of a chi ld. Tenn. Code Ann. § 39-13-522 (1996 S upp.). 12

In State v. Jones , 889 S.W.2d 225 (Tenn. Cri m. App. 1994), the defendant was charged with aggr avated rape; the aggravating ci rcumstance was that the victim was under thirteen years of age. Tenn.Code Ann. § 39-13-502 (1991 repl.) 4 The defendant complained on appeal that consen t would qualify as a defense to the prosecution; becaus e he offered proof that he thought the victim was older than twelve years of age, the trial court shoul d have charged the lesser offense of statutory rape. H e alleged that mistake of fac t should have been an available defense. While this court found that consent would not be a defense, we found reversible error for the failure to charge m istake of fact or provide instructions on statutory rape, which w as characterized as a les ser offense of rape in that instance. Jones , 889 S.W.2d at 230. See also State v. Hallock , 875 S.W.2d 285, 294 (Tenn. Crim. App. 1993) (the defendant complained about the court's failure to charge statutory rape as a lesser offense of rape and our court ruled the evidence did not support such an instr uction).

Other cases, however, sugges t that statutory rape cannot be a lesser grade offense of rape. In State v. Woodcock , 922 S.W.2d 904 (Tenn. Cri m. App. 1995), this court limi

ted the holding of Jones to its particular fact s, concluding that statutory rape was a less er offense based on "the particul ar circumstances of [th e] case." 922 S.W.2d at 913 (the defe nse of mistake of fact as t o age combined with a charge of rape which became aggravated due to the actual age of the victim).

The opinions in Jones , Hallock, and Woodcock were all released before the supreme court filed its

ruling in Trusty . In a subsequent case, State v. Ealey , 959 S.W.2d 605 (Tenn. Crim . App. 1997), our court revi ewed the issue in light of Trusty13 and concluded statutory rape i s neither a lesser incl uded nor lesser grade offense o f rape: Nor are we prepared to hold that statutory rape is

a lesser grade offense of aggr avated rape/rape of a child. Trusty

provides that "the grades or classes of any offense are established by st atute" and that "[o]ne need only look to the statutes to det ermine whether a given offense is a lesser grade or class of the crime charged." (emphasis in original ). [T]he sex crimes do not lend themselves to such simpl e categorization. Although both aggravated rape/rape of a child and statutory rape are included in Part 5 of Chapter 13 of Title 39 of our Code, Part 5 also includes prov isions dealing with homos exual acts, public indecency, and prostitution. Certainly, prostitution is not a les

ser grade or class of r

ape, in spite of its inclusion in the same Part. Thus, that statutory rape is included in the same Part as the sexual assault crimes does not ipso facto make it a lesser grade o r offense thereof. Moreover, the very nature of the statutory rape offense is fu ndamentally different from the sexual assault crimes. For instance, the sexual assault crimes all require some form of "unlawful" contact between the accused and the victi m; statutory rape does not. The age of the defendant is irrelevant with respect to all of the sexual assault crimes; it is a cr

ucial element of statutory rape. All of the sexual assault crim es contemplate the lack of effective consent by the victim; statutory rape contemplates circumstances in whi ch the sexual relations are admi ttedly consensual. In short , neither Trusty

nor the statutory scheme nor a consideration of the nature of statutory rape convinces us that it is a lesser grade or class of the rape of a child offense charged in this case. Id. at 611 (citations omitted ). Unpublished opinions of this court have followed Ealey in ruling statutory rape is not a lesser offense of rape. See State v. Donald Long , No. 02C01-9610-CC-00362 (Tenn. Crim. App., at Jackson, Feb. 24, 1998 ); State v. Michael Lynn Walton , No. 01C01-9509-CR-00290 ( Tenn. Crim. App., at Nashville, Nov. 12, 1997). Based upon this precedent, we conclude that statutory rape is not a lesser grade of rape.

This court must now address the issue of whether the defense counsel's request for a cha rge on statutory rape qualifies as an amendment to the14 indictment. In Ealey , the defendant, who was charged w ith two counts of rape, requested a jury charge on st atutory rape and was convic ted of that offense. 959 S.W.2d at 610. This court ruled that although statutory rape is not a lesser off ense of rape, defense counsel's re quest for the charge on statutor y rape "amounted to a consensual amendment to his pr esentment such that he was pro perly charged with statutory rape in addition t o rape of a child." Id. The court noted that Tenn. R. Crim. P. 7(b) provides that "[a]n i ndictment, presentment or information may be amended in all cases with the co nsent of the defendant." Id. See also State v. Billy Joe Stokes , No. 01C01-9710-CC-00442 ( Tenn. Crim. App., at Nas hville, Jan. 19, 1999); State v. Robert W. Bentley , No. 02C01-9601-CR-00038 ( Tenn. Crim. App., at Jackson, Oct. 17, 1996) (both cases adopting the rationale of Ealeythat the request for the jury instructi on amounts to an amendment to the i ndictment).

While statutory rape is not a lesser offense of rape, the record here tends to suggest that defense counsel sought the charge, as in Ealey . In our view, however, counsel's request would be insufficient to c ure the problem in this c ase. Prior to Ealey , several published opinion s of our court had held that the defendant may not be convicted of an offense for which he is not indicted unless he waives in writing the right to cr

iminal accusation by the grand jury. State v. Jarnigan , 958 S.W.2d 135, 136-37 (Tenn. Cr im. App. 1997); State v. Brackett , 869 S.W.2d 936, 938 (Tenn. Crim. App. 1993) ; State v. Morgan , 598 S.W.2d 796, 797 (Tenn. Crim. App. 1979). In our view, Ealey is inconsistent with these prior opinions and we decline to follow its reasoning, at least as far as it holds that a request for a jury instruction is sufficient to waive the constituti onal right to be charged by the grand jury. Similarly , in Trusty , no mention is made of whether defense counsel requested the charge on assault or merely failed to obj ect to the instruction. See generally Trusty , 919 S.W.2d at 307. Thus, Trusty would appear to control. See15 also State v. Michael Davenport , 980 S.W.2d 407 (Tenn. Cri m. App. 1998) (following the reasoning of Trusty and granting habeas corpus rel ief from a conviction fo r aggravated assault where the petitioner had been ch arged with attempted first degree murder); State v. Jimmy D. Johns on , No. 03C01-9602-CC-00062 ( Tenn. Crim. App., at Knoxvil le, Oct. 16, 1997) (follow ing the reasoning of Trusty and sua sponte dismissing an ince st conviction where the def endant had been indicted for rape but pled guilty to inces t, which is not a lesser

offense of rape). Our Constitution guarantees that "no person shall be put to ans wer any criminal charge but by presentment, indictment , or impeachment." Tenn. C onst. art. I, § 14. "There is ...an absolute right to a cri minal accusation by a gran d jury." Brackett , 869 S.W.2d at 938. It applies to all crimes except those involving a fine of $50.00 or less. Id. (citing Capitol News Co., Inc. v. Metropolitan Governme nt of Nashville and Davidson C o. , 562 S.W.2d 430, 432 (Tenn. 1978) ). Absent either grand jury action or the written waiver of that guarantee, there can be no valid conviction. Brackett

(citing State v. Morgan , 598 S.W.2d 796, 797 (Tenn. Cr im. App. 1979)).

In Morgan , a case where the convicti on was dismissed because the defendant did not waive in writing his right to be charged by a grand jury, this court explained the rule as follows:

[T]his record affirm atively shows that the defendant did not execute the form waiver appearing on the state warrant, nor is there any other writing in this record signed by him wher eby he waived his right to an indictment and trial by jury. In all (except small)

criminal offenses, the rights to be proceeded against only by in dictment or presentment and to a trial by jury ar

e grounded upon provisions of Tenn. Const., art. I, §§ 6, 14.These constitutional ri ghts may be relinquished only b y a valid written wai

ver. 598 S.W.2d at 797 (citations omitted).16 Here, because the defendant did not provide a written waiver of his right to have the grand jury charge statutory rape, the c onvictions must be set asi de. Id.

In our view, the state's reliance on Rule 7, Tenn. R. Crim. P., to allow a consensual amendment is misplaced. The rule provides as follows:

(a) General Provision. --The definition, form , use, return, endorsements, content, and proc edure relating to indictments, presentments and criminal informations shall be as provided by law. (b) Amendments of Indictm ents, Presentments and Informations.--An indic

tment, presentment or infor mation maybe amended in all cases with the consent of the defendant. If no additional or di fferent offense is thereby charged and no substantial rights of the defendan t are thereby prejudiced, the cour t may permit an amendment without the defendant's consent bef ore jeopardy attaches. (c) Bill of Particu lars.--Upon motion of the defendant the court may direct the fi ling of a bill of partic ulars so as to adequately identify the offense c harged. Tenn. R. Crim. P. 7.

An amendment charging a different offense would have to be in writing. See State v. Jimmy D. Johns on , No. 03C01-9602-CC-00062 (Tenn. Crim. App., at Knoxville, Oct. 16, 1997). In Johnson , the defendant was indicted for rape. He pled guilty to incest, apparently believing inces t to be a lesser offense of r ape. The sole issue raised on appeal concerned sentencing. A panel of this court, however, vacated the judgment sua sponte because incest is n ot a lesser offense. Judge Tipton, writing for the panel, explained the underly ing rationale for the rul e: [T]he defendant's judgment of con viction must be vacated and this case remanded because he was convicted for an offense with which he was never charged. The indictment returned by the grand jury charged the defendant with rape, b ut he was convicted of incest. No amendment to the indictment exists in th e record. ... [A]n indictm ent is to be in writing. See T.C.A. §17 40-13-101(a). Because any am endment would be part of the indictment, it also m ust be in writing. In thi s respect, a "lawful accusation is a prerequisite to jurisdi ction." Trusty , 919 S.W.2d at 309. In this c ase, the record on appeal does not contain a writ ten amendment to the indictment or any mention of an amendment to the indictment. With the r

ecord completely silent as to the defendant's position on any amendm ent, we cannot presume that an amendment occurred. Thus, the record reflects that the defendant was convicted of an offen se with which he has not been char ged. Johnson , slip op. at 5, 6.

In summary, because the record does not reflect that the defendant waived in writing his

right to be charged by the gr and jury and because there is no indication that an amendment oc curred, the statutory rape convictions must be reversed and dismissed.

IV

The defendant also argues his convictions for statutory rape are barred by the statute of limitations. We must agree. The indictment charged five counts of rape, four of which resulted in convictions for statutory rape. While these offenses occurred between 1991 and 1993, the indictment was fi led in 1996. The statute of limitations fo r rape, a Class B felony,is eight years. The li mitations period for statutory rape, a Cla ss E felony, is only tw

o years. See Tenn. Code Ann. §§ 39- 13-506; 40-2-101.

Generally, when a defendant is indicted for a greater offense which is not barred by the statute of limitations, he may not be convicted of a lesser off ense which is barred by the l imitations period. See State v. Hix , 696 S.W.2d 22, 25 (Tenn. Crim. App. 1984), overruled on unrelated iss ue , State v. Messamore , 937 S.W.2d 916, 919 (Tenn. 1996); Hickey v. State , 174 S.W. 269 (Tenn. 1915). A18 defendant may waive the statute of limitations, but only if the waiver is knowing and voluntary. State v. Pearson , 858 S.W.2d 879, 887 (Tenn. 1993). A "waiver ... will not be presumed where there i s no evidence in the record to indicate that the defendant was made aware of the i ssue." Id. In this case, there is no proof in the record to indicate the defendant knew about the sta tute of limitations. Nor is there any kind of express waiver. In consequence, the defendan t could not have knowingly and voluntarily waived the protection of the statute of limitations. Thus, the statutory rape convicti ons must be reversed and dis missed. Id.

V The defendant also complains that the trial court erred by denying his motion for a bill of par

ticulars, requesting the d isclosure of the exact ti me, date and place of each offense, and the tim e, date, and place of the victi m's first complaint

. The record indicates that the motion was denied. The basis for the trial court's denial does not appear in the record.

The primary purpose of a bill of particulars i s to provide the defendant with information about the d etails of the charge, if nec essary to the preparation of his defense. State v. Byrd , 820 S.W.2d 739, 741 (Tenn. 1991) . It also serves to avoid prejudicial surprise and to enable the defendant to p reserve a plea against double jeopardy. Id. See also State v. Hicks , 666 S.W.2d 54, 56 (Tenn. 1984).A bill of particulars i s not, however, a discover y device; it is lim ited to information a defendant needs to prepare a defense to th e charges. Tenn. R. Crim. P. 7(c) (Advisory Commiss ion Comments).

In Byrd , our supreme court recognized that in child sex-abuse cases, the victim is often not able to recall the specific date when an offense may have19 occurred; however, the rul ing required the state to dis close what information i t may have concerning when the offense was committed. The supr eme court warned that by "withholding relevant information, the prosecution runs the risk that an otherwise valid conviction wil l ultimately be set asi de." Byrd , 820 S.W.2d at 742. In Hicks , the supreme court, quoting with approval 1 C. Wright, Federal Practice and Proc edure, Criminal, § 129 (1982), held that the state must often "d isclose the time and plac e of the alleged offense, and the names of the persons present when the offense took place." 666 S.W.2d at 56. The defe ndant, however, is not entitl ed to relief unless he can demonstrate that he was ham pered by the lack of specifi city.

In our view, the trial c

ourt should have ordered the st ate to respond to the bill of particulars . On two charges, the month a nd year were given. On the remaining three charges, a range of a few months was pr ovided. The testimony of the victim was much m ore specific than the infor mation provided in the indi ctments. For example, the victim testified that one of the rapes occurred shortly after

her baptism. Also, another incident occurred when the defendan t took the victim to his mother's trailer to us

e the phone. The indictments w ere not nearly as specifi c.

Nonetheless, the defendant has not dem onstrated prejudice by the lack of specificity. The defendant was able to adequately cross-examine all of

the state's witnesses. There is no proof in the record as to how the defense would have been conducted differently had the bill of particulars been granted. Because the defendant has not shown how the stat e's failure to further par ticularize the charges impaired his defense, no r elief is warranted on thi s ground. Byrd , 820 S.W.2d at 741.

VI20 The defendant next argues the trial court erred by allowing the victim to testify on redirect examination about prior bad acts occurring outside the time frame provided in the indi ctment. During cross- examination, defense counsel as ked the victim if she had dis cussed her testimony with the prosecutor and challenged her recollection of the time

s of the various incidents of sexual contact. On redi rect, the victim was allowed t

o testify that the abuse was ong oing. The trial court adm itted the evidence so as to permit the victim to explain w hy she had trouble remember ing the specific dates and why it was necessary to meet with the state's attorney:

Prosecutor: And did you talk to me about those instances that you've alread y testified about? E.M.: Yes. Prosecutor: [E.M.], were there others as well? E.M.: Yes. Prosecutor: Can you reme mber them by any other way than that they happened? E.M.: No. Prosecutor: So what we tal ked about was the five that you could relate to? E.M.: Yes

*** Prosecutor: [E.M.], can y ou remember the other tim es at all other than they happened, and how many times? E.M.: No. It happened all th e time. I can't remember how many times.

Rule 404, Tenn. R. Evid., gov erns the admissibilit

y of prior bad acts. Subsection (b) provides as follows:

Evidence of other crimes , wrongs, or acts is not admissible to prove the c haracter of a person in orde r to show action in conformity with the character trait. It may, however, be admissible f or other purposes. The21 conditions which must be satisfied before allowing such evidence are: (1) The court upon request m ust hold a hearing outside the jury's presence; (2) The court must deter mine that a material is

sue exists other than conduct conforming with a character trait and must upon request state on the r ecord the material issu e, the ruling, and the reasons for admitting the evidence; and (3) The court must exclude the evidence if its probative value is outweighed by the danger of unfair prejudice.

Generally, this rule i s one of exclusion but there ar e, as stated, exceptions. See State v. Parton , 694 S.W.2d 299 (Tenn. 1985); Bunch v. State , 605 S.W.2d 227 (Tenn. 1980); Carroll v. State , 370 S.W.2d 523 (Tenn. 1963); see also State v. Rickman , 876 S.W.2d 824 (Tenn. 1994). Most authorities suggest t rial courts take a "restricti

ve approach of 404(b) ... becaus e 'other act' evidence car ries a significant potential for unfairly influencing a j ury." See Neil P. Cohen, et. al., Tennessee Law of Evidence § 404.7 at 170-71 (3d ed. 1995). That bes t explains the traditional posture of the courts that any testimony of prior bad acts by a defendant, when used as substantiv e evidence of guilt of the cr ime on trial, is not usually permissible. Parton , 694 S.W.2d at 302-03. The gener al exceptions to the rule are when the evidence is offered to prove the motive of the defen dant, his identity, his intent, the abs ence of mistake, opportunity , or as a part of a common scheme or plan. Bunch , 605 S.W.2d at 229.

In Rickman , our supreme court spoke on the dangers of admitting into evidence prior, sex-re lated, bad acts in the context o f a child victim. This passage, perhaps, illustrates the r eason for the rule: The general rule excluding evidence of other crimes [or acts] is based on the recognition that such22 evidence easily results in a jury improperl

y convicting a defendant for his or her bad ch aracter or apparent propensity or dispositi on to commit a crime r egardless of the strength of the evidence conc erning the offense on trial. Such a potential par ticularity exists w

hen the conduct or acts are similar to the crimes on trial. Rickman , 876 S.W.2d at 828, 830 (citati ons omitted).

By the application of these gui delines, our conclusion i s that the evidence was admissible for the limited purpose of explaining why the victim met with the district attorney. It would have been preferable for the trial court to have given a limiting instr

uction to that effect. Because, however, the brief referen ce to other sexual acts was gener al, omitting any details of the other instances, there was minimal prejudice, i

f any at all. In our view , reversible error di d not occur.

VI The defendant also complains that the trial court erre d by admitting "fresh-complaint" statem ents made by the victim t o her mother and other persons

. On redirect examination o f the victim, the follow

ing exchange occurred: Prosecutor: How many peop le have you talked to about this other than me? E.M.: I talked to Lois Gr egory. I talked to the chil d clinic. I talked to a detective in Indiana. I don't know. Prosecutor: All right. Let me ask you about Mrs. [Gregory], did you get into, you know, like specifi c times with her? E.M.: No. Prosecutor: Did you give her any of the, like the details that you did in front of the j ury and with me? E.M.: No. Prosecutor: What about the people at Our Kids Clinic? E.M.: No. I just told them in general.23 Prosecutor: Right after you moved out in March of 199 3, the first person you talke d to about this would have been whom? E.M.: My mother. Prosecutor: Okay. And again did you tell her specifics that happened. E.M.: No. Prosecutor: And then later on you talked to Mrs. Gregory? E.M.: Yes. Prosecutor: Okay. Had you talked to your two sisters about what had happened to you? E.M.: We talked all the time. Prosecutor: Okay. What I meant was before you talke d to your mother? E.M.: Yes.

The defendant argues that this evidence does no t qualify as "fresh complaint" and that the manner in which the testimony was elicited made it "impossible for the jur

y to discern whether what she told other people related t o the five incidents she descri bed on direct examination or whether it related to other alleged acts of abuse."

The fresh complaint doctrine allows the state to introduce evidence in its case-in-chief that the victim complained about the incident shortly after it occurred. The historic

rationale for the doctri ne, which "has ancient origi ns," was that a "'normal' woman w ould report a rape soon after its occurrence" and that the failure to report the rape would tend to suggest that one had not occurred. State v. Kendricks , 891 S.W.2d 597, 601 (Tenn. 1994) . Fresh complaint evid ence qualified as an exception to the general r ule that a witness's cre dibility could not be bols tered24 before any defense effort to im peach the victim. Id. at 601. Historically , the fact of the complaint as well as the details were admiss ible in the case-in-chi ef. Phillips v. State , 28 Tenn. (1 Humphrey) 246 , 248-49 (1848).

In Kendricks , our supreme court comm ented that it "would prefer to abolish the doctrine in its entirety, given its genesis in the profoundly sexist expectation that female vic tims ... should respond i n a prescribed manner." Kendricks , 891 S.W.2d at 604. Our high c ourt ruled, however, that bec ause the presumption that there wil l be an outcry by the female victim is so entrenc

hed in our society, a modified form of the "fresh complaint" doct rine is necessary. Id. The supreme court ruled that the fact of the complaint woul d remain admissible i n the case-in-chief but the details of the complaint were not admissible until the "victim's credibility [had] been attac ked." Id. at 603. The rule requires that while the complaint should be "timel y," it need not be made immedi ately after the assault. "Timeliness" should be deter mined based upon the entirety of the facts and circumstances of the cas e. Id. at 605. Complaints that ar e the product of an investigating officer's

interview are not per s e inadmissible, as long a s the questioning is neither "coer cive nor suggestive" and is clearly the "victim's product." Id.

In State v. Livingston , our supreme court concluded that the "fresh complaint" doctrine would be inapplicable in child sex abuse cases. 907 S.W.2d 392, 395 (Tenn. 1995). Yet there was no determination of what age separated the child and the adult victim . In State v. Schaller , 975 S.W.2d 313, 320 (Tenn. Crim. App. 1997), this court rul ed that "the line of demarcati on for application of Livingston ," is at twelve years; under that ruling, the complaint of a thirteen-year-old victim would be admis

sible. Id.25 That decision would appear to permit the complaint made in this instance; because, however, there is no indication in this record as to when the complaints were made, no determination can be made as to the age of the victim. Nor can be determine from the contents of this record whether the complaints were the "victim's product" or the result of interrogation by law enforcement. Thus, while the testimony might have been admissible, the state fai led to establish the underlying facts required

.

Yet the error was clear ly harmless in our vi ew. The testimony was very general and, in context, constituted a minor portion of the testimon y. Moreover, no details of the complaints made were entered into the r ecord. We conclude the testimony had no impact on the verdict. That the jury returned verdicts on a l esser offense than charged in the indictment supports that de termination. This issue is without merit.

VIII

The defendant also argues that pr osecutorial misconduct r equires reversal. He complai ns about the following porti ons of the state's closing ar gument: You keep in mind that his wo rd, the word Mr. Hunt chooses is theory. It has nothing to do with the facts in this case. What it is, is what criminal def ense lawyers do all the time, they throw out some facts ... smoke screens is what they throw out. T hat's to divert your attent ion away from the ugly facts that point directly to [the defendant]. ...[T]he defendant, ... let's ta lk about all these diversions for his sexual perversions. For his sexual deviations.

Generally speaking, closi ng argument "must be temperate , must be predicated on evidence introdu ced during the trial of the case, and must be pertinent to the issues being tried." State v. Sutton , 562 S.W.2d 820, 823 (Tenn. 1978) . Our26 supreme court has ruled th at argument that "that defense couns el was 'trying to throw sand in the eyes of the jury' and 'blowing smoke in the face of the jury'" is improper argument. State v. West , 767 S.W.2d 387, 395 (Tenn. 1989) . To merit a new trial, however, the argument must be so inflammatory or improper as to affect the verdict. Harrington v. State , 385 S.W.2d 758 (Tenn. 1965). In Judge v. State , 539 S.W.2d 340, 344 (Tenn. Cri m. App. 1976), this court ar ticulated the factors to be considered in making that determination: (1) the conduct complained of viewed in the context and the light of the facts and cir cumstances of the case; (2) the curative measur es undertaken by the court and the prosecution; (3) the intent of the prosecutor in making the impr oper statements; (4) the cumulative effec t of the improper conduct and any other errors in the r ecord; and (5) the relative stre ngth or weakness of the case.

When measured by these standar ds, it is apparent that any improprieties in this

argument did not warrant a new trial. Although the chal lenged portion of the state's argument was improper, the remainder of the argument fa lls within permissible g uidelines. The defendant made no contemporaneous objection and the record does not suggest an improper motive on the par t of the state.

IX The defendant’s final compla int is that the trial cou rt erred by enhancing the sentence on two of the statutory rape convictions and by requiring another of the sentences to be ser ved consecutively. Although we have reversed and dismissed each of the four statutory rape convictions, we will nonetheless address the sentence received by the defendant.27 When there is a challenge to the length, range, or manner of service of a sentence, it is the duty of this court to conduct a de novo review with a presumption that the determi nations made by the trial c ourt are correct. Tenn. Code Ann. § 40-35-401(d). This presumption is "conditioned upon the affirmative showi ng in the record that the tria l court considered the sente ncing principles and all relevant facts and circumstances. " State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991) ; see State v. Jones , 883 S.W.2d 597 (Tenn. 1994). The Sentencing Commissi on Comments provide that the b urden is on the defendant to show the impropriety of the sentence.

Our review requires an analysis of (1) the evi dence, if any, received at the trial and sentencing heari ng; (2) the presentence repor t; (3) the principles of sentencing and the arguments of c ounsel relative to sentenci ng alternatives; (4) the nature and characteristic s of the offense; (5) any m itigating or enhancing factor s; (6) any statements made by the defendant in his own behalf; and (7) the defendant's potential for rehabi litation or treatment. T enn. Code Ann. §§ 40-35-102, -103, and -210; State v. Smith , 735 S.W.2d 859, 863 (Tenn. Cr im. App. 1987).

The trial court imposed sentence as follows: Look at the aggravating factors . There's not a whole lot of aggravating factors here, doesn't look like. I thi nk he did use his position and for ced the child to do what he did with her. I think that 's one of the aggravating factor s. As far as some of the others, they're a part of the others, two and three applied that part of the offense itself, so, I mean, he didn't use a weapon or anything. He's got five charges he's been convicted of , the most serious being the rape case, eight to twelve years. The Court sentences eight years on the bottom, the range there is where it should be. The range on the next offense committed was one year, a nd bottom. The next one would be one year, he would car ry some time on. The third one would be two years , top range on that one, and two years top range, on the other s.28 [R]ape runs eight years, s o it's running concurrent with three of the statutory rapes, going to run one consecutive, that's a fair sentence, giving him an effective sentence of ten years

.

Although the trial court di d not refer to the precise l anguage of the statute, it is apparent he enhanc ed the statutory rape sentences based on aggravating circumstance Tenn. Code Ann. § 40-35-114(15),that the defendant abused a position of private trust. The record clearly supports application of this enhancement factor. As the victim's step-father, the defendan t abused his relationship to commit

the crime. Two-year

sentences on two of the statutor y rape convictions are entirel

y appropriate.

We now turn to the appropriateness of ordering consecutive sentences. Prior to the enac tment of the Criminal Sentencing Reform Act of 1989, the limited classifications for the imposition of consecutive sentences were set out in Gray v. State , 538 S.W.2d 391, 393 (Tenn. 1976). In that case our supreme cou rt ruled that aggravating cir cumstances must be present before placement in any one of the classifications. Later, in State v. Taylor , 739 S.W.2d 227 (Tenn. 1987), the court established an addition al category for those defendants convicted of two or more statutory offenses involving sexual abuse of minors. There were, however, additional words of caution : "[C]onsecutive sentences s hould not routinely be imposed ... and ... the aggregate maximum of consecutive terms must be reasonably related to the sev erity of the offenses invol ved." Taylor , 739 S.W.2d at 230. The Sentencing Commis sion Comments adopted the caut ionary language. Tenn. Code Ann. § 40-35-115. Th e 1989 Act is, in essence, the codification of the holdings in Gray

and Taylor ; consecutive sentences may be imposed in the discretion of the trial court only upon a determinati on that one or more of the29 following criteria ex

ist: (1) The defendant is a profes sional criminal who has knowingly devoted himself to criminal acts as a

major source of livelihood; (2) The defendant is an offender whose record of criminal activity is extensive; (3) The defendant is a dangerou s mentally abnormal person so declared by a com petent psychiatrist who concludes as a result of an i nvestigation prior to sentencing that the defendant's cr iminal conduct has been characterized by a patter n of repetitive or compulsive behavior with heedless indifference to consequences; (4) The defendant is a dangerous offender whose behavior indicates littl e or no regard for human li fe, and no hesitation about committing a crime in which the risk to human life is high; (5) The defendant is convicted of two (2) or more statutory offenses involvi ng sexual abuse of a minor w ith consideration of the aggravati ng circumstances aris ing from the relationship between the defendant and victim or victims, the tim e span of defendant's undetected sexual activity, the natur e and scope of the sexual acts and the extent of the residual, p hysical and mental damage to the victim or victims; (6) The defendant is sentenced for an offense committed while on probation; (7) The defendant is sentenced for criminal contem pt. Tenn. Code Ann. § 40-35-115(b).

In Gray , our supreme court rul ed that before consecutive senten cing could be imposed upon the dangerous offender, as now defined by subs ection (b)(4) in the statute, oth er conditions must be pres ent: (a) that the crimes involved aggravating circumstances ; (b) that consecutive se ntences are a necessary means to protect the public from the defendant; and (c) that the t erm reasonably relates t o the severity of the offenses.30 In State v. Wilkerson , 905 S.W.2d 933, 938 (Tenn. 1995) , our high court reaffirmed those pr inciples, holding that cons ecutive sentences cannot be required of the dangerous offender "unless the terms reasonabl y relate[ ] to the severity of the offenses committed and are necessary in order to protect the pu blic (society) from further criminal acts by those persons who resort to aggravated criminal conduct." The Wilkerson decision, which modified somewhat the strict factual guidelines for cons ecutive sentencing adopted in State v. Woods , 814 S.W.2d 378, 380 (Tenn. Crim . App. 1991), described sentencing as a "human process that neither can nor should be reduced to a set of fi xed and mechanical rules." Wilkerson , 905 S.W.2d at 938. The recor d must show that the sentenci ng principles and all rel evant facts and circumstan ces were considered before the presumption of correctness applies.

The trial court did not state the basis for imposing consecutive sentences. The only proof at the sentencing hearing was the testimony of Bill Hyden, a probation officer, who confirmed the defendant’s fa ilure to meet child support obligations. It is possible that consecutive s entences might have been warranted based on statutory factor number five, that th e defendant was convicted of two or more sexual off enses involving a minor.Yet, there is no proof, as required by law, of "the aggravating ci rcumstances arising fr om the relationship between the defendant and victim or vi ctims, the time span of de fendant's undetected sexual activity, the nature and scope of the sexual acts and the exte nt of the residual, physical and mental damage t o the victim or victi ms." Tenn. Code Ann. § 40-35- 115(5). Based on the content of the record, consecutive sen tences would have been inappropriate.

For the reasons previousl y stated, the convictions fo r statutory rape31 are reversed and dismis sed. The conviction and senten ce for rape are affirmed.

__________________________________ Gary R. Wade, Presiding Judge CONCUR:

______________________________ Thomas T. Woodall, Judge

______________________________ James Curwood Witt, J r., Judge