# FILED
June 26, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE MARCH 1998 SESS ION

STATE OF TENN ESSEE, ) ) C.C.A. No. 03C01-9705- CR-00165 Appellee, ) ) McMinn County V. ) ) Honorable Carrol l L. Ross, Judge J. C. MEYER, ) ) (Rape of a Child - Two Counts) Appellant. )

FOR THE APPE LLANT: FOR THE APPELLEE: Charles M. Corn John Knox Walkup District Public Defender Attorney General & Reporter P.O. Box 1453 Cleveland, TN 37364-1453 Elizabeth B. Marney Assistant Attorney Gener al Criminal Justice Div

ision 425 Fifth Avenue North Nashville, TN 37243-0493 Jerry N. Estes District Attorney General Richard Newman Assistant District A

ttorney General P.O. Box 647 Athens, TN 37303-0647

OPINION FILED: ___________________
AFFIRMED
PAUL G. SUMM ERS, Judge-2- O P I N I O N J. C. Meyer, the appell ant, was convicted by a jury of two counts of r ape of a child. The criminal cour t denied the appellant’s motion for a new trial, and he appealed. He raises several issues for our review: (1) whether the trial court erred in denying the appellant’s motion to sever the two counts of the indictment ; (2) whether the court erred in failing to order the state to file an additional b ill of particulars; (3) w

hether the court erred in al lowing the state to i ntroduce into evidence three incidents of sexual penetration when the appellant was only charged with two counts; (4) whether the trial court erred in instructing the jury that the appellant’s earliest release date would be after serving 5.73 years in prison; and (5) whether the evidence was sufficient to support the convictions.

PROCEDURAL BACKGROUND In March 1996, t he appel lant wa s indic ted on fou r counts

of the ra pe of a child. The first two count s were dismissed in August 1996. The third and fourth counts alleged that the rapes occurred on or between J anuary 1995 and May 1995. In July 1996, the appell ant filed a motion for a bill of parti culars, asking the court to order the state t o provide the date, time, and pl ace of each rape, the manner of the rape, and any know n witnesses. The state filed a bill of particulars specifying that between January and May 1995, while living on Circle Drive in Etowa, Tennes see, the appellant raped the v ictim, a child less than thirteen years of age. The pen etration was orally and vaginally. The state further informed the appellant that the appellant’s daughter, a minor, and the victim’s brother, a mi nor, may have been present when the alleged rapes occurred and that they mig ht be called as witness es.
On September 13, 1996, the appellant fil ed a motion for a more complete bill of particulars, re

questing a specific desc ription of when the crimes occurred. The appellant also filed a motion to s ever the two counts of r ape for trial.-3- On September 30, 1996, the court held a hearing on the appellant’s motion to sever and his motion for a more complete bill of particulars. The court denied the appellant’s motion to sever the counts in the indictm ent, in part because the counts involv ed the same victim. On Octo ber 1, 1996, the state amended the indictment to allege that the two counts of rape occur red on, or between, November 1994 and M arch 1, 1995. The appellant filed a moti on requesting the court t

o charge the jury on the applicable range of punishments

. The appellant also filed a motion to ex clude all evidence of sex ual conduct other than evidence of the two acts of sexual penetration alleg ed in the indictment.

EVIDENCE At trial, the victi m, an eight-year-old female, testified that from November 1994 through February 1995 , she lived with her mother, brother, and her mother’s boyfriend, the appell ant. They lived in a thr ee-bedroom apartment on Circle Drive i n McMinn County. The v ictim testified that sometime near Christmas of 1994, she was lying in her mother’s bed. Her mother was asleep in another room. The victim tes tified that the appellant came into the room, locked the door, took off his shorts, kissed her, and lay on top of her. The victim testified that the appellant rubbed the “private place “ between he r legs with his hands. She testified that the appellant “stuck his private in mine. ” The victim testified that she told the appell ant to get off of her, and he did.
The victim testified that the ap pellant approached her on a second occasion and “did the same thing, except when I told him to stop he didn’t stop.” She testified that this occurr ed in her mother’s bedroom. She t estified that the appellant placed his “pri vate” in her “priv

ate.” She testified that the appel lant also stuck his “priv

ate” in her mouth. The vict im said that it hurt whe n the appellant stuck his “pri

vate” in her “priv

ate.” She stated that she notic ed blood on the bed. The victim testifie d that the appellant told her not to tell anyone or he would go to jail, and, that he would beat her mother. The victim testified that-4- she told her mother what the appellant had done to her, but that her mother told her to say that her brother or Uncle Terry abused h er. The victim testified t hat no one else had ever sexually abused her. She stated that the sexual contact occurred once or twic

e when there was a Chr istmas tree in the apartment.
The appellant and the victim’s mother were evicted from Circle Drive in February 1995 and went to Florida in May or June of 1995. During part of this time, the victim lived with her maternal grandmother, Shirley Patton. Shortly after moving to Florida,the victim’s mother r eturned to Tennessee to bring the victim and the victim’s brother to Florida. The appellant’s daughter, Melissa Meyer, and the victi m’s uncle, Terry Thompson, als o lived with them at v

arious times in Florida. In October 1995, the victim’s grandmother brought the victim and her brother back to Tennessee. The parties stipu lated that if Ricky Thompson, the victim’s uncle,were present that he w ould testify that on October 24, 1995, the day after the vi ctim returned from Florida, s he told Ricky that the appellant had hurt her in her privates. Ricky told the victim’s g randmother and Patty DeBoard who took her to Dr. Iris Sny der the next morning.
Dr. Snyder, a pediatri cian and the victim’s doc tor, examined the vict im. Dr. Snyder testified that the examination showed pos itive findings of sexu al abuse, including an enlarg ed hymenal opening, small t ears in the hymen, and a thin hymen. Dr. Snyder testified that these findings were consistent with past sexual abuse. Dr. Sny der testified that she could not determine exactly w hen the abuse occurred, but that the inj uries were at least a month old.

The victim made a statement to a D epartment of Human Services employee. Both the state and the appellant had access to this statement before trial, and it was i ntroduced into evidence. The de fense brought out the inconsistencies in the statement and the victim’s trial testimony. The victim said in her statement that abuse occurred while her mother was at work at the W affle-5- House both in Tennessee and Flori da. At trial, the vic tim testified that her mother only worked at the Waffle House in Florida. The victim’s mother testified that she worked at the Waffle House in Flori da, but not in Tennessee. Nex t, the victim stated that the ap pellant’s daughter wa s present when a rape occurred. The victim said in her statement and at trial that the appellan t’s daughter visited the appe llant in Florida, but that she had never been to Tennessee. The victim’s mother testified that the appellant’s daughter had never been to the Circle Driv

e apartment in Tennessee. Lastly , the defense introduced letters written by

the victim to the appellant while the appellant w as in jail. In the letters, the victim s

aid that she missed the appellant , that he was the best dad that she had ever had, that she loved him and wanted to see him. The victim testified that she wrote the letters before the rapes occurred. The victim’s mother testified that she mailed the letters after the rapes occur red, implying that the letters were written after the rapes.
At the close of the state’s proof, the state elected to proceed on one c ount of vaginal rape and one count of oral rape. The court den ied the appellant’s motion for judgment of acquittal. The victim’s mother, Don na, and the appellant testified for the defense. The victi m’s mother testified that she had nev er seen the appellant act negativ ely in any way

toward the victim. She testified that she made Terry Thompson, her brother, leave the Florida res idence because he would not leave the v

ictim alone, implying

that he had sexually abus ed the victim. She testified that Terry had sexually abused her during their childhood. Donna’s mother testified that she did not believe that Terry abused Don na because Donna never told her about i t.
The appellant denied that he raped the v ictim. On direct exami nation, the appellant testified that he has conv ictions for robbery w

ith a firearm, two counts of conspiracy to commit robber y, common law robbery , aggravated burgl ary, and theft. He testified that he left Tennessee w hile on bond for the aggrav ated-6- burglary because his

mother was dying. The appellant was extra dited back to Tennessee. He testified that Donna’ s mother hated him. The appellant test ified that he never locked the v ictim’s brother out of the house.On rebuttal, the victim’s brother tes

tified that on one or two occ asions the victim and the appellant were in the house alone and that sometimes the appellant would not let the victim play outside. The victim’s brother testified that he could not get in the hous e on occa sion, but that he th ought tha t the doo r locked a utomati cally.

MOTION TO SEVER The court denied the appellant’s mot ion to sever the counts i n the indictment. Tennessee Rule of Cri minal Procedure 8(b) prov ides that the state may join two or more o ffenses in the same indictment if the offenses cons titute parts of a common scheme or plan or i f they are of the same or similar character. Tennessee Rule of Criminal Proc edure 14(b), however , provides that the defendant shall have a sever ance of the offenses unless the offenses are part of a common scheme or plan and the evi dence of one would be admissible upon the trial of the others.
The appel lant ar

gues th at the tw

o alleg ed acts o

f rape w ere not p art of a common scheme or plan because the acts were substantially disconne cted in time and were not part of the same criminal episode. W e disagree. There are three categories of common scheme or plan evidence: (1) dis

tinctive designs, or signature crimes; (2 ) a larger continuing

plan or cons piracy; a nd (3) the sa me transaction. State v. Ho yt , 928 S.W.2d 935, 943 (Tenn. Crim. App. 1995). In Hoyt , the Court said: To fall within th e first category of ‘distinc tive design or signature,’ similar crimes committed by the defendant ‘are admissible to show the defendant's modus op erandi from which it may be inferred that the defendant probably committed the nearly identical crime for which he or sh e is on trial.’ H oweve r, the modus operandi must be so unique and distinct ive as to be like a signatu re, i.e., it must be probative of the defend ant's ide ntity. To determine whether certain crimes fit into this category, ‘ the test is not whether ther e was-7- evidence that a defendantcommitted both crimes, but w hether there was a unique method used in committing the crimes.’ Hoyt , 928 S.W.2d at 943 (citation s omitted).

In order to be ' parts of a comm on scheme or plan' as contemplated by Rules 8(b) and 14(b)(1), two or more sets of off enses must be so similar in modus operandi and occ u r within such a relatively

close proximity

of time and location to each other that there can be little doubt that the offenses were committed by the same person(s). State v. Peacock , 638 S.W.2d 837, 84 0 (Tenn. Crim. App. 1982).

The similarities betwee n the offenses alleged in counts thr ee and four are sufficient to establish a distinctive design. The victim is the same in each offense. The offenses occurred within a relatively short period of time, four months. The circumstances surr ounding the offenses are similar.Both offenses occurred in the same room and i n the same house. Both rapes occur red when the appellant had the opportunity to be alone with the vi ctim.

Next, we must determine the admissibility of ev

idence of one crime in the trial of the other. In determin ing admissibility , the trial court must compl y with the procedural requirements of Tennessee Rule of Evidence 404(b). Rule 404(b) provides that evidence of other crimes, wrongs, or acts is not admissible to prove the character of a per son in order to show action in conformity with the character trait. Such evidence, however, may be admissible for other purposes if its probative value

is outweighed by the danger of unfair prejudice. Evidence of other crimes is admissib le to show a common scheme or pl an for the commission of two or more cr imes so related to each other that proof of one tends to establish the other. Hoyt , 928 S.W.2d at 944. T herefore, the evidence of the offense in count three would be admi ssible in the trial on c ount four and vice versa.-8- Lastly, we must determine whether the probative value of the offense is outweighed by the dang er of unfair prejudice to the appel lant. The similarity o f the acts makes the probative value of the evidence part icularly significant. Hoyt , 928 S.W .2d at 944 (quot ing State v. McKnight , 900 S.W.2d 36, 51 ( Tenn. Crim. App. 1994)). The appellant made no show ing of unfair prejudice. The dang er of unfair prejudice does not outweigh the probative value of the evidence of each alleged rape. Once again, the victim is the same, the time period is relatively short, the location of the rapes is the same, and the nature of the rapes is the same. The trial court properly denied the appellant’s motion to sever.

BILL OF PARTICULARS The appellant argues that the court erred in denying his motion for a mo re complete bill of particular s. The purpose of the bill of partic ulars is to provide information about the details of the char ge when necessary for a defendant to prepare his or her defense, to av oid prejudicial surpr

ise at trial, and to enable the defendant to preserve a plea of double jeopardy. Information that may be required in the bill of particulars includes, but is not limited to, details as to the nature, time, date, or locati on of the offense. State v. Speck , 944 S.W.2d 598, 600 (Tenn. 1997).
Generally, only after a trial, will the court be able to determine w hether deficiencies in the bill of par ticulars prevented the d efendant from preparing an adequate defense, caused undue and prejudi cial surprise, or made unt enable a later plea of double jeopardy.“In other words, the trial court cannot determi ne whether or not the defendant has been ham pered in his defense until the court knows what proof the stat e will offer as to time and pl ace of the offense, and how this evidence relates to the actual theory of defense.” Id. at 600-01(quoting State v. Byrd , 820 S.W.2d 739, 74 1 (Tenn. 1991)). Although a court should make every effort to see that the prosecution supplies the nec essary information in the bill of particulars , in cases involvi ng child sexual abuse, the prosecution-9- may be unable to supply all the specifics requested by the defense simply because of the age of the child. Id. at 600.
At the hearing, the appellant was concerned that the sta te limit its proof so it did not unduly sur prise the appellant at tri al. The court informed both parties that they could r eview the Department of Hu man Services file. The assistan t district attorne y informe d the app ellant at the heari ng that th e two counts of rape involved both vaginal and oral penetr ation on both occasions. The appellant’s attorney re sponded that he believed that he h ad everything he needed to try the case, but as ked the state to put the new i nformation in writing. Although the state did not file a second bill of particular s, it is clear from the record that the state gav e the appellant all the informatio n that was available on the alleged offenses.
On appeal, the appellant argue s that the information supplied by the state did not describe the number of penetr ations or whether there were single or multiple criminal episodes . As argued by the stat e, the appellant has failed to articulate how the lack

of information, if this information w as lacking, prevented the appellant from preparing his defense, surprised him at trial, or subjected him to doubl e jeopard y. The app ellant ha s not off ered a de fense th at would ha ve been available if the state co uld have offered greater speci ficity. The information provided by the state was sufficient to allow the appellant to prepare his defe nse and to protect him from prejudici al surprise at trial.The state provided the appellant with a four-month ti me span, the location, and the natur e of the rapes. The state gave the appellant al l the information that it had. We find no merit to this issue.

EVIDENTIARY ISSUE Next, the appellant arg ues that the trial court er red in allowing the

state to introduce evidence of three sexual penetrations when the appellan t was only-10- charged with two counts of rape of a child. He cites State v. Rickman , 876 S.W.2d 824 (Tenn . 1994), but does not explain how the case supports his argument. In Rickman , the Tennessee Supreme Court refused to adopt a broad sex crimes excepti on to Rule 404(b) of the Tennessee Rul es of Evidence. That rule provides that ev

idence of other crimes, wr ongs or acts are not admiss ible to prove the character of a per son in order to show action in conformity with the character trait on a parti cular occasion. The Court, however, reaffirmed the special rule of “admitting evidence of other sex cr imes when an indictment is not time specific and when the ev idence relates to sex c rimes that allegedly occurred during the time as charged in the indictment. “ Rickman , 876 S.W.2d at 829. The Court said that “[I]n suc h cases, the State must elect at the close of its proof-in-chief as to the particular incident for which a conviction is being sought.” Id. “Unlike evid ence of prior crim es exclude d by Bunch and Tenn. R. Evid. 404(a) & (b), evidence of a prior sex crime that is necessarily inc luded within the charge of the indictment is al so necessarily rel evant to the issues being tried and, therefore, is admissible.” Id.
We find no merit to the appellant’s argument. The s tate produced evidence of one oral and tw o vaginal penetrations.All three acts occurr ed during the time period alleged in the indictment. At the close of its proof-in-chief, the state elected to seek convi ctions for one oral and one va ginal penetration. The facts of this case fit within the special rule enunciated b y the Court in Rickman.

JURY INSTRUCTIONS The appellant next argues th at the court erred in char ging the jury that the appellant’s earliest rel ease date, if convicted of the rape of a child, would be after serving 5.73 year

s in prison, requir

ing a reversal of the j ury’s verdict. Pursuant to Tennessee Code Annotated §§ 40-35-201(b) (1) & (2)(A)(I) ( Supp. 1995), the appellant requested the cour t to instruct the jury

on the possible penalties for the offense charged and all lesser i ncluded offenses. When a charge including-11- possible pena lties has been re quested pursua nt to subdivision (b)(1), the judge shall also include in the instructions an approxi mate calculation of the minimum number of years a person sentenc ed to imprisonment for the offense charge d and lesser included offenses must serve befo re reaching such person's earliest release eligibilit

y date. Tenn. Code Ann. § 40-35- 201(2)(A)(I).
The court instructed the jury that the range of punishment f or the offense of rape of a child was twenty-five to forty y ears in the state penitentiar y. The court erroneously ins

tructed the jury that the minimum number of years that a person se ntenced to impris onment for the ra pe of a ch ild would h ave to serve before reaching the earlies t release eligibili

ty date was 5.73 year

s. A person convicted of the rape of a child must serve the entire sent ence imposed by the court undiminished by any sentence reduction credits . Tenn. Code Ann. §§ 40- 35-501(I)(3)(Supp. 1995), 39-13-523(b)(Supp. 1995).
Although the court’s instruction was incorrect, the error was harmless; it does not require reve rsal. Tennessee Rule of Appellat e Procedure 36(b) provides that no judgment of conviction shall be re versed on appeal except for errors that affirmatively appear to have affected the result of the trial on the merits. The appellant does not ex plain how the erroneous j ury instruction affected the result of his trial. The c ourt instructed the jury

on the elements of rape of a child and the lesser i ncluded offense of aggravated sex ual battery. Aggravated sexual

battery is unlawful sexual contact. Tenn. Code Ann.§ 39-13- 504 (Supp. 1995). The evidence of penet ration was substantial . We find that the error does not mandate rev ersal.

SUFFICIENCY OF THE EVIDENCE The appellant argues that the evidence is insufficient to support the jury’s verdict for several

reasons: (1) the medical ev idence did not establish w hen the alleged abuse occurred; (2) the victim testified that the event was painful, but did-12- not complain of pain when she had a chance to do so; (3) the chil d was not taken to a doctor until approx imately seven months after the alleged event; (4) at the time of the complaint, the child was in the custody of an individual who w as hostil e to the a ppellant; (5) t he conviction was bas ed upon t he testi mony of a child who had been over ly coached, after the “incidents”; (6) the vic tim wrote letters e xpressing a ffecti on for th e appella nt; and (7 ) the stat e did not prove
venue.
When an accused challenges the sufficiency of the convicting evide nce, we must review the evidence in the light most favorable to the prosecution in determining whether "any rational trier of fact could have found the essential elements of the crime beyond a rea sonable doubt." Jackson v. Virginia , 443 U.S. 307, 319 (1979). We do n ot reweigh or re-evaluate the evidence and are required to afford the state the strongest legitimate view of the proof contained in the record as well as

all reasonable and legitimate inferences which may be drawn therefrom. State v. Cabbage , 571 S.W.2d 832, 83 5 (Tenn. 1978).
Questions concerning the c redibility of witnesses, the weight and v alue to be given to the evidence, as well as factual issues raised by the evidence are resolved by the tri er of fact, not this Court. Id. A guilty ver dict rendered by the jury and approved by

the trial judge accre

dits the testimony of the w itnesses for the state, and a presumption of guil t replaces the presumption of innoc ence. State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973). It is the appella nt's burden to illustrate to this C

ourt that the evidence prepond erates against the guil ty verdict in favor of his

or her innocence. Id.
The issues raised by the appellant were for the jury to decide. Both the state and the defense did a fine job of raising and addressing the issues in this case. The testimonies of the vi ctim and her treating phy sician were accredi

ted-13- by the jury and are sufficient evidence to support the jury’s verdict. This Court finds the evidence to be leg ally sufficient to sustain the verdict of the jury

.

CONCLUSION This Court affirms the judgment of conviction on all coun ts.

__________________________ PAUL G. SUMMERS, Ju dge
CONCUR:

______________________________ JOHN H. PEAY, Judge

______________________________ CORNELIA A. CLARK , Special Judge