### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE January 15, 2002 Se ssion
STATE OF TENNESSEE v. JAM ES ARTHUR KIMBR ELL
Direct Appeal from the Circuit Court for F entress County

No. 7633 E. Shayne Sexton, Judge

No. M2000-02925-CCA-R3-CD - F iled April 15, 2003

On September 3, 1999, a Fentress County jury convicted the D efendant of four counts of rape of a child, a Class A

felony ; five counts of ra

pe, a Cla ss B felony ; and thirt een counts of inc est, a Cla ss C felony. The tria

l court imposed an effective sentence of for ty y ears. The Def

endant no w appea

ls arguing that inef

fective ass istance o f counsel at trial, along with newly discovered evidence, prejudiced

the Defendant to the point of de priving him of a fa

ir trial w ith a reli able

result. After a review of the record, we conclude that the Defendant was denied due process throug h ineffective assistance of

counsel. We there fore re

verse the Defe

ndant’s c onviction s and remand this case to the Fentre ss County

Circuit Cou

rt for a n ew trial

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

cuit Cour

t Rever sed and Remanded

R OBERT W. W EDEMEYER , J., delive red the opinion of the court, in which D AVID H. W ELLES and T HOM AS T. W OODA LL , JJ., joined.

David L . Ray

bin, Nash ville, Te nnessee , for the

appella nt, James Ar

thur Kimbr

ell.

Paul G. S um mer s, A tt orn ey Gen era l an d R epo rte r; J enn ife r L. Bledsoe , Assistan t Attorne y General ; William Paul Phillips, District Attorney General; an d Jo hn W. Galloway, Jr., Assistant District Attorney Gene

ral, for the appellee, State of Tennessee

. OPINION
I. PROCEDURAL HISTORY

On May 15, 1998, the Fentress County G randJury indicted the Defe ndant, Jame s Kimbrel l,
on five counts of rape of a child, five counts of rape, twenty

counts of incest, one count of felonious reckle ss endangerment and one count of reckless driving. In Januar y 1 999, the r

eckless endangerment and reckle ss driving counts were severed from the sexual offenses. The Defendant pled not guilt

y to the sexual

offense s, and a ju

ry trial wa s c onducted on September 2, 1999. On1 It i s the policy of th is Court not t o identi fy mi nor chil dren inv olved in sexual abuse case s by name, even though the victim was no long er a minor a t the time of trial. Instead, we will identify t he minor victim in this case b y her initials.

-2- September

3, 1999, the Defendant was convicted of four c ounts of rape of a child, a Class A f el on y; fi ve co un ts of

ra pe , a Cl as s B fe lo ny; an d t hi rt ee n c ou nt s o f i nc es t, a C la ss C f el on y.
On November 9, 19 99, following a sentencing hearing , the trial court sentenced the Defendant

to concurrent twenty -year at 30% sentences for each rape of a child conviction. The trial court sentenced the Defendant to ten y ears for each rape c onviction. It ordered that the sentences for three of the ra

pe convictions run c oncurre ntly and that t

he sente nces for the rema inin g two rape convictions run concurrently to each other

but conse cutively

to the other three sentences. Each of the five sentenc es for r

ape wasto be served

at 100%. The court further ordered tha t the sentences for the five rape convictions run consecutively to the sentences for

rape of a child. Additionally , the court imposed a sentence of three y ears at 30% for each of the thirtee n co unts of in cest, to run
concurr ently with each other and with all the other sentences. The r esulting effective sentence was thus twenty y

ears at 30% followed by twenty y

ears at 100%, to be serve d in the Tennessee Department of Correction. This appeal ensued.

The Defendant presents six issues for ou r revie w: (1) whether trial counsel rendered ineffective assistance of counsel; (2) whether the Defenda nt is entitled to a new trial based on newly discovered

evidence; (3) whether the trial court allowed into evidence imprope r proof of additional sexual offenses; (4) wh ether the charged offenses should have been severed; (5) whether the tria l court erred in failing to charg e the jury on election and how to consider the “uncharg ed acts” and; (6) whether the Assistant District Attorney improperly arg

ued facts which were not in evidence.

II. FAC TS

A. Evidence Presented at Trial

The victim, M.K., 1 was eighteen y ears old and married

at the time of the trial. M.K. stated that the Defenda

nt wa s her adopted father and that he was mar ried to Frances N. Kimbrell, her adoptedmother, during the time the alleged eve nts tookplace. M.K. testified that when she was five years old, she a

nd her biological sister, Bethany , who is three ye ars young er than her, were placed together in foster care w ith the Kimb

rells, who later

adopted t hem. M.K. testifie d that the Kimbrells also had a natural daughter, Julie, and an adopted son, Christopher, who lived in the home. M.K. recalled that at times, other foster children lived with theKimbrells. M.K. testified that around 1990 the Kimbrells moved into a home in Clarkrange, located in Fentr ess County, where the

y lived until 1997.

M.K. testified that the Defendant initially fondled her and touche d her in places “where he should not be touching [her].” She recalled that the Defendant touched her breasts, her buttocks, and her vaginal area. She testified that he first pene trated her when she was ten y ears old and that the-3-

sexual abuse continued

until she w as seven

teen y ears old . At that tim

e, M.K. r eported the abuse and left home. She state d that the abuse usu ally

occurr ed in the Kimbrell home while Mrs. Kimbrell was away. H owever, M.K. testified that when Mrs. Kimbrell was home, the abuse occurred in the loft of the barn . She furt

her stated that whe

n Mrs. Kimbrell w as away , the Def endant w ould super

vise the you nger children. On those o ccasion s, he woul d often give Beth any and Christ

opher mon

ey to buy bread or candy

and tell them to go to the store, which was about a half of a

mile from the home.

M.K. testified that all the sexual incidents consisted of “normal sexual intercourse.” She stated that more

than fift y incidents o f sexual a

buseoccurred over

the seven-y ear period. She testified th at beca

use of the freque ncy of the abuse, she h ad diffic ulty recalling spec ific inci dents, butstated that she could clearly remember the places where the abuse occurred. She stated that from 1990 until her thirteenth birthday on September 22, 1993, she had intercourse with the Defendant
more than five times: once in the loft of the barn, on her bedroom floor more than once, and once
on the couch in the living room. She could not recall, however, whether a ny abuse occurred in the Defendant’s bedroom d

uring th at time pe

riod. M.K . testifie d th a t sexual intercourse with the Defendant

“started becoming a reg

ular thing” when she was “about twelve . . . y ears old up until [she] was sixteen.”

M.K. stated that from the time she turned thirteen until she turned fiftee n, she a nd the Defendan t had inter course more than five times. She testified that during this period of time the incident s were most frequent. She recalled an occasion when the Defendant took her, he r sister, and Christopher

on a fishing trip to the City L ake in Fentr

ess County. She testified that it began to r ain,
so her sister

and Christopher sought shelter nearby , while she walked to the Defendant’s truck. M.K. testified that the Defendant followed her to the truck , and they had inter course in the truck. She recalled another occasion when she, the Defe ndant, her sister, and Christopher worked in the ya

rd, and while the others were outside burning a pile of brush, she and the Defe

ndant had intercourse in her bedroom. She testified that she had intercourse with the Defendant in her bedroom at times other than on the day of the

brush-pile burning.

M.K. testifie d that bet

ween he r thirtee nth and fifteenth birth

day s, she had

sexual inte

rcourse withthe Defendant in the living room. She stated that the abuse also occurred

in the loft of the barn during this period of time.

M.K. testified that between the time she turned fifteen and the time when she left home, she and the Defendant had intercourse in the loft of the ba rn after they

had gathered walnuts. M.K. stated that on her sixteenth birthday, she “begged” the De

fendant not to have intercourse with her any more, but things did not change. She testif ied that th e Defe ndant bec ame ang

ry , and she

could notrecall if they

had intercourse that evening. M.K. estimated that fr om her sixteenth bi

rthday until she left home at age seventeen, she a nd the Defendant had

sex approximately eight times. She stated that the abuse

became less fre quent a

ft er she “realized [that she could] push him off.” M.K. acknowledged

that she d id not alwa

ys push the De

fendant away because she relied on him

to prevent her mother fr

om y elling a

t her or b eating

her. M.K . sta

t ed that it was obvious to everyone in the family that she w as his fa

vorite c hild, and t

his is what

caused h er mothe r to dislike

her. She also-4-

stated that she help ed the Defe ndant with

his paper work, wr ote the checks to p ay

the famil y bi lls, didthe laund

ry for her self and

her siste r, and did mo s t of the cooking. M.K. testified that the Defendant and his wife never g ot along very well.

M.K. testified that

in August 1997, the Defendant bought a house a nd some property on Rock Quarry Road in Clarkrange. She stated that on more than one occasion, she and the Defendant went to work on the property be

fore the family

moved in. M.K. recalled on one occasion, she and the Defendant

had sexual intercourse inside the home on a piece of car pet. She testifi ed tha t on two separa te occasions she and theDefenda nt had sexual intercourse in a cave on the property and on the trail to the cave. M.K. testified that she “staye d sad a lot of the times because [she] didn’t like it, and [she] cried a lot because of it, to him.”

M.K. testified that the Defendant sometimes used a condom, depending on “w he th er [t he y]
were where he had put s ome up . . . .” She sta ted that he kept a p lastic co ntainer with some c ondoms in it near her bedroom, and he a lso kept some above the windows in the loft of the barn. M.K. testified that she never saw what he did with the condoms after they were us ed beca

use she w ould leave as soon as they we

re finished having sex. She testified that she once t hought s h e might be pregnant and told the Defendant. According to M.K., the De fendant “said something about

eating celery or something and it would wash all the fluids out of [her] or something like that.”

M.K. testified that on November 8, 1997, after the family had moved into the new house, she received a phone call from a boy

she knew from church. She stated that the two ta lk ed fr eq ue nt ly, buton this occasion, the Defendant came home while she wa s on the phone, became angry and grabbed the phone from her. M.K. recalled that afte r the Defendant hungup the phone, he and his wife beg an arg

uing. Mr s. Kimbre

ll then lef t the home . Accor

ding to M. K., Mrs. Kimbrell stated, “Beth and Chris g et y our stuff

and let’ s go.” M .K. understood that to mean that Mrs. K

imbrell di d notwant her

to go with

them. M.K. te stified th at sh e l ef t t he ho me tw o d ays la te r o n M on da y, November 10, 1997.

M.K. testified that she finally decided to tell someone about the abuse when

the Defendant trie d to fondle

her ear ly o ne mornin g as she

was slee ping on th

e couch . She claimed that t h e Defendant

would not s to p when she asked him to do so. M.K. stated that at that time, she was working at Little Pumpkin Child Care. When she arrived at work, sh e told her boss, Cy nthia Sherrill, about th e abuse. That ni ght, she went to the home of Ron and Nancy Kington, her new foster parents, and never returne d to the Defendant’s home.

M.K. testified that the Department of H uman Services (DHS) conducted an investigation. She was inter viewed by Shane Ly ttle. She stated that, over the ye ars, she had spoken with o the r DHS workers, including DeWay ne Wakefield and George Stephe ns, reg arding

beating s by

Mrs. Kimbrell, but she never reported the sexual incidents. M.K. maintained that she did not report the sexual abuse because she felt that she would not be believed. A ccording to M.K., bec ause DHS did notrespond t

o her all egatio ns concer

ning phy sical ab use by

Mrs. Kimbr

ell, which, acco

rding to M.K., were substantiated by bruises, she believed that

nothing would be done about the sexual abuse.-5-

Fi na ll y, M.K. testified that she was examined by a nurse practitioner and that, prior t o that examination, she had never had sexual intercourse with any one other than the Defendant.

On cross-examination, M.K. testified that there was no television in the Kimbrell home and that they were a llowed to l

isten to a r

adio only if the ra dio was tuned to a

Christia n station. She stated that she was not allowed to wear p ants or jewelry , although she admitted that she did wear make-up. M.K. testified that she was not allowed to date before the age of eighteen. M.K. testified she was required to attend church twice a w eek and had to sit with her parents during church. She reported that when

the Kimbr

ell childre n went to th

e County Fair, th ey were a llowed to attend on ly gospel shows. M.K. also admitted that, even though it was against the rules, she did sometimes change into shorts once she arrived a t school, but that she did so “not very often.”

M.K. recalled that Julie K imbrell wa s still living

in the home

when the sexual abuse began. She stated that she told Julie that the Defe ndant wa s “touching her .” M.K. te stified th at Julie questioned the Defe

ndant abo ut the abuse, butthe Defendant “did come back to [M.K.] with it.” M.K. stated that from 1990, when the abuse began, until 1993, when Julie married and moved out of the home, the sexual abuse alway s occurred when Julie was not at home.

M.K. testified that in ad ditio n to her interview with DHS worker, Shane L yttle, she was interviewed

by A nn Austin from the Department of Children’s Services (DCS). She admitted that during these

interviews, she never mentioned any thing about sexual activity with the Def endant at City Lake, the cave

at the new home, or the trai l le ading u p to that c ave bec ause she felt DCS did not need to know the details. However, M.K. insisted she told her lawy er every thing.

M.K. stated that the DHS investigators never asked her if she w as being sexually a bused, and she acknowl edged

that she w as not sur

e if she would have admitted the abuse had she been asked. M.K. testifie d that she

spoke with

her biolo gical a

unt, Faye Human, many times by

phone and that she had writt

en notes t o her aun t for about a month w

hile living

with the K

imbrells. M.K. stated that she repeatedly

asked her aunt if she could live with her, but she admitted that she never mentioned to her aunt that

she was b eing sexually abuse d. M.K. testified that she did not think that her aunt could help her. M.K. testified that she wa s able to give her attorney more details concerning the sexual abu se beca

useshe had time to think about the incidents. She stated tha t she had n othing to gain by testifying a

t trial. Bethany Kimbrell, who was sixteen year s old at the time of trial, testified that she was about two years old whe

n she went to live with the Kimbrells. She stated that she had often been in the loftof the barn in Clarkrange, wher e she found new and used condoms. Bethany

stated that

at first she did not know what they were. She recalled that she usually found two

or three used con doms at a time “just laying a

round on the top loft on

the floor .” Beth any

testifie d that the

new cond

oms were located on a

board above thedoors in th e loft. B ethany

stated tha t she threw the use d condoms over the fence and kept the new one s even though she said she did not know what

they were . She testified that she never saw the Defendant in that par t of the loft.-6-

Bethany recalled that on occasions when she, M .K. and Christopher were home with the Defendant, the Defendant frequently sent her and C hristophe

r to the sto

re. She te stified th at a trip to the store took between thirty and forty-f

ive minutes. Bethany

stated that on other occasions, the Defendant

would re quire he

r and Chr istopher to stay outside or

in their rooms. She testified that

she had no actual know ledge o f what oc curred when M.K . was alo ne with the Defend ant.
On cross-examination, Bethany acknowledged that she

could not r

emember the first time she found condoms in the loft. However, she stated that the last time s he found them was when the family was clea ning out t he barn t o move. She

admitted that she did not tell DHS workers about finding the condo ms in the lof t. She also

testifie d that she

did not men

tion the c ondoms to Shane Ly ttle when he was taping an interview with her spec ifically about the alleg ations of sexual abuse made by M.K. Bethany

testified that Christopher knew that she had found the condoms because he
was with her w

hen she f ound them. Bethan

y te stified th at she did

tell her new foste

r paren ts or, in
an untaped interview, a

DHS worker named

Beth Smith about the condoms in the loft. Finally, on re-direct examinatio n, she tes ti fied tha t t he first time she contacted the Department of Human Services regarding the alleg ation of physical abuse by her mother, she was punished for doing so by having to stay

in her ro om, except

for eat ing supp er, for

two or thr

ee wee ks. However, she testified that M.K. was not punished because of that report or investiga tion.

Sue Ross, apediatric nurse practitioner at Our Kids Center in Nashville, Tennessee, testified that she examined M.K. on Janua ry 7, 1 998. According to Ross, Our Kids Center is a clinic of Metro-General

Hospital that was established in 1987 to perform evaluations on childr en alleg ed to have been sexually abused. She re ported that her examination of M.K. rev ealed a

n indicat ion of pas t penetration trauma to the hymen. On cross -examinat ion, Ross sta

ted that sh

e could not tell from the examination how often penetration had occurred or how long ago it had occurred. The Defendant testified that he was fifty-three y ears old at the time of the trial and that his primary area of employ

ment was in construction as a contractor and a ca rpenter. He recalled that h e moved to Fentress County, Te nnessee from Indiana

in 1980. The Defendant testified that hi s marri age to Frances Kimbrell lasted thirty -three and one-half y ears. The couple had two natural children, Jimmy and

Julie, and over a period of about eight y ears until 1994 or

1995, over forty f

oster children stayed in their home. The Defendant testified that in 1989 or 1990, he and his wife adopted M.K., Bethany , and Chris. He stated the family went to chur

ch “every time the door was open” and that they went to sever

al types of “or

ganizational” churches.

The Defendant admitted that the girls were not allowe d to wear slacks, jewelry , or make-up. The Defendant

testifie d that the

girls we re requ ired to we ar their

dresses and skirts below the knee and to attend Chr

istian sch ool. The D efenda

nt did not a

llow the girls to dat

e until the

y became eighteen. He testifie d that the girls c ould not cu

t their ha ir except t o trim split

ends. There was no television in the home, andthe radio was tuned only to gospel stations. The Defendant reported that his personal habits als o excluded the use of alco hol, and he had no t used any tobacc o sin ce the a ge of sixteen.-7-

The Defendant testified that he was divorced from his wife at the time of the trial. He stated that they had a long

history of problems prior to the divorce that stemmed from his wife’s desire to live in a different manner. The Defendant testified that among other things, Mrs. K imbrell wanted
a television and credit cards. He stated that his wi fe had ob tained c redit ca rds, but did not t

ell him. The Defendant testified that his wife left

before the allegations of sexual abuse, and he believed she had been planning to lea ve him for

some time prior. The Defendant testified that he also had problems with M.K., beginning when she was about fourteen, about the r ules of the house. He recalled that she wore make-up, wore shorts at school, and wa nted to date. He testified that he agreed to pe rm it he r t o i nv it e b oys to si t w it h t he fa mi ly a t church, as he had allowed his natural daughter, Julie, to do at that age.

The Defendant

denied having sex with his daughter, M.K. He testified that he had tr ouble performing sexually

and that h

e sough t treatme nt f irst fro m his reg

ular doc tor, and t

hen from a specialist, Dr. Goryl. The Defendant reported

that he saw Dr. Gory

l about two times, and he thought the visits occurred during the summer of August, 1994. He stated that

the doctor tried

two types of treatme nts, one of which involved a procedure that the D e fendant had to perform thirty minutes before sex. The other treatment was a shot, which the Defendant testified wa s not effective. According to the Def

endant, h e told the doctor th at he did n ot want to g o through the procedure before sex, and “if that

is what had to happen, it wasn’t that important, [he] wasn’t that interested.”

On cross-examination, the Defendant admitted that he had been reluctant to go to the doctor and finally went at the r

equest of his wife because it was important to her. He testified that after 1994, he had sex with his wife only a “ver y few times” a

nd acknowledged that

he had been able t

o perform on oc ca si on . W he n a sk ed if he ha d a ny h eart problems between 1993 and 1997, the Defendant

testified that he had been in Cookeville Hospital in June of 1997. He further testified that he did not have diabetes and that he did not take any

medic ation for hi gh blo od pre ssure , alth ough he said his blood pressure alway s ran a little high. The Defendant stated that Dr. Gory l told him that his hormone level was “near zero.”

The Defendant testified

that the rules he enforced in his house were based on his relig ious beliefs. He stated that when hemarried Mrs. Kimbrell, she shared his beliefs, but as time passed, she began to want a television and credit c ards. The Defe ndant tes tified tha

t his wife threate ned to leave before they

adopted children.

The Defendant testified that on the night Mrs. Kimbrell move d out o f the house, he was infuriatedwith M.K. b ecause she was “thro wing a fit.” He stat ed that she was upset because her younge r brother had gone with the Defenda nt to the “other property ” to move some things, and she didnot want her brother to go. The Defe ndant testified that just before the argument with Mrs

. Kimbrell, M.K. was talking on the phone with a boy , and he took the phone from her and told the boy not to call back. He deni ed “cussing.” He admitted that when his wife lef t, she said that he could move “her” into his bedroom since “she” was practically there a nyway . The Defendant

stated that the Assistant District Attorney Gene ral just assumed that “her” and “she” wer e M.K.-8-

The Defendant testified that when he was first interviewed by Shane Ly ttle, he stated that

he was not aware of any

opportunity that

M.K. had t

o have se x with any

boy s unless it was while she was at school. How ever, w hen aske d if “tha

t would still

be true t oday , [that] you are not a

ware of any other times she would have had sex with any bod y ?” the Defendant replied, “I have found out a lot of things since she left.”

Fi na ll y, the Defendant testified that he did ha v e some problems with M.K. because she wantedto talk to, date, or write letters to boy s. He testified that there was an incident in 1995, which he later discussed with DHS workers, when he had found some “very vulgar letters” either to or from two differe

nt boy s, one of w

hom was Will

Campbell. He stated that he spoke to the parents of one of the boy s and disc iplined M. K. by making h

er eat a one-pag e letter

she had w

ritten to Will Campbell.

Dr. Ste p hen V. Goryl, a

specialist in urology, te stified that he first saw the Defendant on April14, 1994, on a referral from Dr. Gray Smith. Dr. Gory l stated that the Defendant complained of erectile dy sfunction. According to Dr. Gory l, the Defendant stated that he had had the problem for ten year s and that he had no desire for sex. The doctor stated that his recor ds showed that the Defendant

stated that he never woke up with a n erection, despite the fact that he was not on any medication, was not dia

b etic, an d had no sig

nifican t past medi cal histor

y to explain the

problem. Th e doc tor explained that at the time, the treatment options for the Defendant’s problem wer e limited, but the Defendant tried the two drugs that were a vailable at the time.

Dr. Goryl testified that he teste d the Defendant’s serum tes tosteron e, beca use oc ca si on al ly,
men who have no desire for sex have lowtestosterone. However, the Defendant’s test results were
no rmal. When the D efenda nt return ed for a second visit on May

12, 1994 a

nd indica te d that th e medications had not helped, the doctor ordered a shot of testosterol for him. The doc tor testified that the second visit

was the last time he saw the Defendant. He stated that he did not recall wha t other treatme nts he offe red the Defend ant, but he testified that he probably told the Defendant that he could get injections that would create an ere ction.

On cros s-exa

mination, D

r. Gory l testifie d that eith

er phy sical pa

in or psy cholog ical pro

ble m s can prevent men from hav ing erec tions. The doctor e

xplained th at in diag

nosing e rectile dysfunction, all possible phy sical problems must first be eliminated. Dr. Gory l reported that he foun d no phy siologic al cause for the D efenda

nt’s impote

nce. Fi nally , Dr. Gor

yl te stified th at a person can be impotent with one sex partner and be fine with another.

Julie Townsley, the Kimbrells’ na tural daughter, testified that she was thirty -one at the time of the trial and that she was twenty-five y ears old when she left home in 1993 to get married. She stat ed that she h ad lived i n the home with the th

ree ado pted chil dren and

severa l foster c hild ren
. Townsley testified that while she was living with her parents, there was no television in the home, and she listened to news or gospel radio. She stated she did not wear pa n ts, drink alcoh ol, or use tobacco. Sh e t es ti fi ed th at sh e w as al lo we d t o w ea r m ak e- up an d j ew el ry. She also testified that she
was al lo we d t o d at e b oys once she turned seventeen. In addition, she said she alway s saw her father-9-

fully clothed around

the hous e. Townsl ey

testifie d that she

did not fe el restr

icted by the rule s. However, she believed that M.K. did have p

roblems w ith the rul es and tr ied to re bel aga inst them.

Mrs. Tow n sley testified that M.K. had ne ver discussed any

improper behavior by

the Defend ant. On cross-examination, she stated that if M.K. had ever said “any thing as serious as that,” she would have sought out the truth. Julie Townsley ac knowledged that there

were times when she and her mother were working, a nd the Defendant was alone with the children.

Bob Allred testified that he had known the Def endant since 1992. He testified that they attendedchurch together and that he had frequently

visited the Defendant’s home. He stated he had al wa ys found the Defendant to be a truthful man and that h is reputa tion in the c ommunity

was as a truthful person.

Ed Hatfield testified that he had been a resident of F entress County since

1972 and that he had known the Defend ant for th irty to thirty -five y

ears, da ting bac k to when the

Defend ant lived

in Indiana before coming t o Tennessee . Hatfield stated that he would take the Defendant’s wor d as truthful. He also stated that he knew the Defendant to have a reputation for trut hfulness in the community.

In rebutta l, M.K. testified that she had a discussion with the Defendant about his impotence, and she recalled

him visiting the doctor for the problem. She stated that the Defendant told her that he “could not do what he needed to do for [Mrs. Kimbrell], ”and whe never he was in be d with his wife, “he w ould t

hink a bout [M .K.] or something so that he could perform to [his wife].” M.K. maintained that the Defendant had “no trouble” g etting erections when he was with her. On cross

examination, M.K. admitted that she never told any one who interviewed her about the Defenda nt’s impotence or about her conversations with the Defendant about it. She stated that she told only her lawyer tha

t information.

Shane Ly ttle testified that he worked for the DHS and that he had previously worked for the Department

of Children’s Services as a child abuse investigator. He stated that

he was assig

ned to investig ate the case

involving the Defendant and M.K. He stated that he interviewed M.K., but he didnot ask her any

questions about impotence because he did not realize that impotence was an issue in this case . He expla

ined that during a n initial in

terview of a chil d who may have

been abused, he does not focuson the det ails. Acc ordin g to Ly ttle, the p riority is to find ou

t if the ch

ild is in immediate

danger and needs to be remove d from the home. Ly ttle stated that the specifics are investigated later. Ly ttle testified that he interviewed the Defendant on Novembe r 10, 1997 a bout the allegations made by

M.K. He stated that the Defendant denied the alleg ations of sexual abuse, but admitted to having

an arg ument with

M.K. on the

day that Mrs. K

imbrell le ft. Ly ttle re called the Defendan t telling h

im th at he found M.K. on the phone with a boy , that he got on the phone, “cussed” the boy, and hung up. Ly ttle also reported that he an d the Defendant discussed the-10-

“particular

statement” referring to moving M.K. into the bedr oom, that w as made w

hen Mrs. Kimbrell left.

On cross-examination, Ly ttle testified that he taped his first inte rview with M.K., but h

e did nottape the later interview with the Defendant. He testified that the interview with the Defe ndant
was dictated from his notes and transcribed, which is the no rm al proce dure inc luded in the child abuse protection handbook and manual. He testified that the Defenda nt claimed to have had problems with M.K. passing out condoms at school.

B. Evidence Presented at the Sentencing Hearing

At the sente ncing hearing , two juve

nile male s each testified that they had sexual rela tions withM.K. d uring th

e time she

claimed t

o have ha

d sex with no o ne but the Defend ant. Will Campbell, who was nineteen y ears old at the time of trial, testified that in 19 96 he had sexual intercourse with M.K. on one occasion in a barn at the Kimbrell home and that she had performe d oral sex on him on another occasion. He stated that when they had intercourse, he found blood on his genita ls th at was not his own. Campbell had admitted that he initially denied ha ving sexual relations of any kind with M.K. when inter viewed by investig ator Mitch Stephens from the District Attorney’s off

ice. Campbell testified that M.K. told him she had sexual relation s with thre e other b oys , Travis Stowers, Nathan Elliott, and Jessie Brown. Jessie Lee Brown, who w as eighteen y ears old at the time of trial, testified that he had intercourse once with M.K. when he w as fifteen y ears old. Trav is St owers, who was e

ightee n ye ars old a

t the time o f trial, d

enied ev er havin g sexual r ela tions wit h M.K.

Danielle

Kimbrell, M.K.’s twenty-one -year -old cousin , testified that her uncle, the Defend ant, brought his adopted daughters to visit her family in Indiana approximately twice a ye ar. According to Danielle Kimbre ll, on one o ccasion

in the summer of 1997, M.K. asked her for advice about sexual techniques because M.K. and her boyfriend had been having sex. When asked if M.K. could hav e been r

eferr ing to the Defendant as her boyfr iend, Kimbrell responded, “I don’ t know.” She also testified that M.K. told her that she loved her parents, but she did not like the way she wa s being raised. On cross-examination, Danielle Kimbrell stated that before the trial in this case, she told Defendant’s trial counsel the same information about which she w as testifying in the se ntencing hearing. She also stated that she did not know to whom M.K. was refe rring when she was talking about having sex with her boyfriend.

Frances Kimbrell, the Defendant’s ex-wife, testifi ed that she had been married to the Defendant

for thirty-three

and a hal f years. She state d that she filed for divorce just before the allega tions in thiscase and that her reasons for the divorc e were incompatibility a nd deterioration of the marriage over the y

ears. She stated that she did not talk to the Defendant’s trial counsel before the trial. Mrs. Kimbrell admitted that DHS had previously investig ated her for hitting M.K.’s sister. She stated tha

t she unde rwent, a nd succe ssfully

complete d, counse

ling. Mr s. Kimbrell denied ever-11-

making the children eat soap as punishment. She maintained that she had no knowledg e of any sexual abuse of M.K. by

her husba

nd, nor did

she believe that he had the characte r to commit such abuse. Mrs. Kimbrell recalled that both M.K. and Bethany had often been untruthful in the past. On cross-examination, she confirmed that her husband had impotence problems, whichpersisted even after he hadtwo visits with a speci alist . She s tated that o n the n ight s he left , she w anted M.K. t o go with her, but M.K. chose to stay. K imbrell acknowledged that in November 1997, she told Shane Ly ttle that Bet

hany had also made alle gationsregar ding the Defend ant. She a

dmitt ed tellin g the Defendant

on the night she left, “[Y]ou might as well move her in there now.” Kimbrell stated that she was referring to M.K. beca use M.K. refused to leave. She maintained that she was refer ring to a “position of authority” r ather than the Defendant’s bedroom.

James R. Kimbrell, the Defendant’s oldest child, testified to his father ’s good cha racter. Danny Lee Kimb rell, the Defendant’s brother, also testified to the Def endant’s good moral characte r. He further testified that he believed M.K. was not a truthful person. Da nny Kimbrell testified that another brother, Lonnie, had also adopted a daughter, Marg o, who, a couple of years be fore this case, had made accusations of sexual abuse against Lonnie . He stated that the allegations never resulted in a criminal prosecution, but the daughter did leave the home and did not return. Bethany Kimbrell testified that in the fall of 1997, the Defendant touched her

inapprop riately
on her breasts on two separate occasions on the basement stairs. On cross-examination, Bethany admitted that she told Shane Ly ttle thatshe was in her room when the Defendant touche d her. She reported that when

the alleg ations mad

e by M.K. cam

e out, Julie asked Bethany if anything like tha

t had ever happened

to her, and she replied that it had not. Bet hany testifie d that whe

n Mrs. Kimb

rell left the home, she said something like “[W]ell, he can have her . . . .” She also tes tified that her mother made her eat soap as a punishment once or twic e.
M.K. testified that she never had sexual relations with Will Camp bell, Jessie

Brown, Nathan Elliott or Travi s Stowers. She admitted that she knew of t

he alleg ati ons made against the Defendant’s brother , Lonn ie Kimbre ll, but she stated that she was very young w hen the allegations
were made. M.K . denied e ver having any

convers ations wit

h her cou sin, Danie

lle Kimbrell, about
sex and stated that she had only see n Danielle a few times in her life. M.K. also denied ever talking to her cousin about Margo, the cousin who had made a llegations of sexual abuse against her adoptive father, Lonnie Kimbrell. M.K. testified that the Defe ndant was “real mean” an d that he punished her by making her eat soap and by kicking her. However, she admitted that she wrote letters to her father saying tha

the was her “hero.” She also acknowledged that she sporadica lly kept a diary , but she never wrote any

thing in it about her father abusing her in any manner.
In rebutta l, Danielle Kimbrell testified that she a nd M.K. did

have a c onversa

tion about their mutual cousin, Margo, and the allegations Mar go had made against her a dopt ive father , Lonn

ie Kimbrell. Danielle further testified that during that conver sation, M.K. as ked if Margo “got any money out of it.” She restated that, contrary to M.K.’s testimony, the two girls had seen each other at least twice a

year until this case began. On cross-examination, she reporte d that the

situation with Margo had occurred recently , about two to two and a half y ears prior to the sentencing hearin g.-12-

Fi na ll y, Danielle testified that she had spoken to her mother about the conv ersation with M.K. regarding Margo a nd she did d

iscuss it w ith the Defendant ’s trial c ounsel be fore the trial. Da nielle acknowl edged

that she s poke todefense counsel a bout the c onversa

tion she ha

d with M.K. during which M.K. asked her about sexual techniques.

C. Evidenc e Presen

ted at the Hearing on the Moti on for a N

ew Tria l

JessieLee Brown c onfirmed his testimony from the sentenc ing hearing that he did have sexual intercourse with M.K. Brown testified that he and M.K. talked on the phone and that he then hitchhiked and met her at a church. According to Brown, Andrea Gunter lived about 200 yards fr

om the church. Brown stated that after mee ting at the church, he and M.K. “drifted off” to some ne arby oil tanks and had sex. He also testified that Gunte r had kno wledge

of his hav

ing sexua l interco urse withM.K., buthe admitted that he did not mention Gunter at the sentencing hearing w hen describing these ev ents. Br

own testif ied that he did not ta

lk to defe nse coun sel befo

re trial

. Andrea Gunter, who was eighteen years old, testified tha

t the first time

she had sp oken with anyone about this case wa s after t he trial in April 200 0. She stat ed she wa s friends with Jessie Brown, and she recalled an occasio n three y

ears pr ior to the hearing when M.K. and Jessie Brown had come to he

r house. S he state d that two o ther fri ends, Julie Watson and

Ronnie Wall , were there at the time. Gunter recalled that she and M.K. walkedto a nearby

church prior to everyone’s arrival at her house. Gunter testified that Jessie Brown, Julie Watson, and Ronnie Ball met them at the church. Gunter te stified th at she and M.K. then walked back to her house, while the other three drove. She testified that at some poi nt, Brown and M.K. wandered off by themselves. Gunter reported that Brown and

M.K. returned about ten minutes later. Gunter testified that “[M.K.] kissed Jessie, told him that she loved him and she ran inside [Gunter’s] house.” Gunter testified that she followed M.K. inside

the house , and M.K. told

her that “they

had sex.” Gunter stated

th at a f ew da ys or weeks later, Jessie Brown told her that he had sexual intercourse with M.K. She testified that she and Brown talked about the incident again some time later after this was pendi ng. On crossexamination, Gunter testified that she did not see M.K. and Brown kiss in the church.

Jetta Fulmer, the Defendant’s sister, testified that Danielle Kimbre ll and M.K. were fr

iendly and that she had been around the two g irls when th ey saw eac h other on

about eig

ht separ ate occasio ns. She state d that sh e k ne w t he y h ad been together “quite a lot.” F ulmer brought photographs of Danielle, M.K., and Bethany Kimbrell together at

family events and state d that they “were very

friendly with ea

ch other.”

The De fendant’s brother, Lonnie Kimbrell, testified that he and his wife had adopted h i s wife’s half-sis ter’s thr

ee child ren in 198 6. He tes tified tha t the middle

child , Margo, made allegations of sexual a

buse ag ainst him in

1993. He t

e stifie d that she alleged that he “had been sexually inappropriate with her since she was ten ye ars of age .” Kimbre ll stated that Margo made the allegations after he had hit her three times with abelt for b ein g caug ht in the school caf

eteria witha boy

whose ha

nd was in her pants . He testi fied th at the criminal investig ation of th

is case spannedover a y

ear, but the crimi nal inves tigation was drop ped in 1995, and no charges were ever-13-

brought against him. However, he acknowledged that the adoption and custody of the children was pending in court u

ntil 1997. H e stated

that the c asereceived pu blic attention on the radio, on television, and in the newspapers. However, he testified tha t he did not talk to the Defendant about his problems. Kimbrell testified that he never regained c ustody of his adopted daug hter.

M.K. testified that she used to work at a church near Andr ea Gunter’s house. She also sa id there were so me oil tank s nearby . M.K. sta ted that sh

e consid ered Gun ter to be her friend and an honest person. However, M.K. denied having se x with Jessie Brown near the oil tanks and also denied ever telling Gunter she had sex with Brown.

Mitchell Stephens, a forme

r sherif f, testif ied that a t t he t ime of the hearing, he worked for the District Attorney’s Of fice. He testified that he and a Tennessee Bureau of Investigation

(TB I) agent interviewed Will Cam

pbelland that Campbell had been given a polygra ph. He testified that after the polygr

aph test, Campbell mad e a sworn statement. Stephens recalled that Campbell’s st atementafter the poly graph was different from the sta tement he made before and during the polygra ph: Campbell’s former statement contained a claim that he had sexual intercourse with M.K., and in the latter

statement, he claimed that he had only had oral sex with her. He stated that he and the TBI ag ent interviewed Jessie Brown on the same day the

y interviewed Ca

mpbell. Brown was also given a

poly graph . Unlike Ca

mpbell, Brown gave no other sworn state ment after his polygra

ph. Stephens also said he talked with Andrea Gunter’s mother.

Shane Ly ttle testified that in addition to interviewing M.K. and the Defendant, he had interviewed

Frances Kimbrell, the Defendant’s f ormer wife. He reported that she told him that on the night she left the home she had shared with the Defendant, she told the De

fendant that he “ could just go ahead and move her into his bedroom now bec ause she was practically the re anyway .” Ly

ttle stated that Mrs. Kimbrell told him that when she heard of theallegations made by M.K. ag ainst the Defend ant, “it explained a lot to her.” According to Ly ttle, Mrs. Kimbrell stated that the Defendant “certa inly had favo red M.K. over her ,” and she told him th at s he and the Defendant “hadn’t had
s exual relation s in the pa st two (2) ye ars.” H e testifi ed that Mr s. Kimbrell also told him that s h e would not move back into their home and that she had contacted a

lawyer a bout getting a divorce.

Fi na ll y, Linda Reaga

n testified that Jessie Brown was put in to foster

care in her home

in 1996. She testified that Brown told her that he had sexual intercourse with M.K. seve ral times in M.K.’s bedroom. Reagan stated that she had contacted the Defe ndant abo ut Brown ’s claimsthat he had sex with M.K.

III. ANALY SIS

A. Ineffective Assistance of Counsel

The Def endant argues that he was denied e ffective assistance of counsel at trial . Th e Tennessee Supreme Court has held that the issue of i ne ffective assistance of counsel is a mixed question o f law and

fact an d, as such , is subjec t to de novo review. State v. Burns , 6 S.W.3d 453,-14-

461 (Tenn. 1999). The right of a criminally accused to representation is guar anteed b y bo th the Sixth Amendment

to the United States Constitution and Article I, Section 9 of the Tennessee Constitution. Id. ; Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). This right to repre sentati on includes the right to “reasonably

effective” assistance. Burns , 6 S.W.3d at 461. In reviewing a claim of ineffective assistan ce of counsel, this Court must determine whether the advice given or services rendered by t he attor ney are with in the range of competence demande d of attor

ney s in crimin al case s. Baxter , 523 S.W.2d at 936. To prevail on a claim of ineffective assistance of counsel, a petitioner must show that “counsel’s representation fell below an objective standard of r easonableness,” Strickland v. Washington , 466 U.S. 668, 688 (1984), and that this performance prejudiced the defense, resulting in a failure to produce a reliable result. Id. at 687 ; Cooper v. State , 849 S.W.2d 744, 747 (Tenn.1993). To satisfy the requirement of prejudice, a petitioner must show a reasona ble probabil ity that, but for counsel’s unreasonable error, the fact finde r wo uld have h ad reas onable doubtregar

ding the petitione r’s gui lt. Strickland , 466 U.S. at 695. This rea sonable p robabilit y mu st be “sufficient to undermine confidence in the outcome.” Id. at 694; see also Harris v. State , 875 S.W.2d 662, 665 (Tenn. 1994).

When evaluat

ing an ineffec tive assis tance of counsel c l aim, t he revi ewing c ourt s houl d jud ge the attorney’s pe

rformance within the context of the case as a whole, taking into account all relevant circumst ances. Strickland , 466 U.S. at 690 ; State v. Mitchell , 753 S.W.2d 148, 149 (Tenn. Cr im. App. 1988). Th

e reviewing court must ev aluate th e questio nable co nduct fr om the attorney ’s perspective at the time. Strickland , 466 U.S. at 690; Cooper , 849 S.W.2d a t 746; Hellard v. State , 629 S.W.2d 4, 9 ( Tenn. 198 2). I n doing s o, the re

viewing court mu st be highly def erential and “should indulge a st rong pres umption that counsel’s conduct falls within the wide range of
reasona ble professional assistance.” Burns , 6 S.W.3d at 462. Counsel should not be deemed to have been ineffective merely

because a different proce dure or strategy

might have produced a differe nt result. Williams v. Sta

te , 599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980).

The Defendant cl ai ms that cou nsel was ineffective for ( 1) failin g to inte rview Will C ampbell, who was subpoenaed to testify at trial, (2) failing to locate or interview Jessie Brown, (3) failing to present the testimony of

Andrea Gun ter, and

(4) fail ing to pr esent the testimony

of Danie

lle Kimbrell. Jimmy White, the Defendant’s trial counsel, testified at the hearing on the motion for new trial that he is an attorney who has bee n licensed to practice in Tennessee for se venteen ye ars and that he is a part-time general sessions judge in Clay County , Tennessee. He stat ed that he was retained by the Defe

ndant within a week

after the allegations were first made by M.K. He stated that he represented the Defendant on var ious legal matters, including the removal of M.K. and Bethany from the Kimbr

ell home and his divorce from Mrs. Kimbrell. He testified that the criminal charges in this case did n ot arise u ntil Ma y 1998. White testified that he met with the Defe ndant about fifteen to twenty times prior to tria l.

White testified he interviewed M.K. prior to tr ial, and she told him that she never had sex withanyone other

than the Defendant. He also stated, however , that there was some indication prior-15-

to tri al that M.K . had engaged in sexual relations with boy s her own age before she made the accusations aga

inst t he Defend ant. He te stifi ed th at ac cord ing t o his n otes, “Some

hear d she had s ex, she denied. Danielle say s - admitted .” White stated that Danielle Kimbrell had indicated that M.K. had prior sexual experience. White explained

that purs uant to his understa nding of Tenness ee Rule of E vidence 412, the “Rape Shield La w,” he was prevented from prese nting such evidence on hi s own initiative . He also

stated that he did not anticipate that the Assistant District A

ttorney would “open the door” to allow him to present the evidence. As such, he did not pursue that ave nue of investigation. However, he noted that “clearly the door was opened . . . when [the State] asked her [if she] had sex with anyone.”

White further testified that he made tac tical decisions not to callFr an ce s K im br el l t o t es ti fy, notto use a letter M.K. had written to her father, and not to use M.K.’ s diary at trial. He stated that he did not ca ll Daniel l e Kimbrell to testif y a bout her c onversa

tions with M .K. beca

use of his understanding of the law at the time and because he felt that the jury might perceive her testimony
a s biased toward her uncle. White testified that he decided not to use other f amily members as character witnesse s due to similar concer ns of per ceived b ias, altho

ugh he d id call the Kimbrells ’ biological daught

er, Julie Kimbrell. He repo

rted tha t he called Julie Kimbr

ell as a w itness be cause she was able to describe

the rule s by

which g irls in the

Kimbrell houselived and to state her opinion that she did not find the rules unreasonable or too restri ctive, even thoug h M.K. did r

ebel ag ainst th em . C ou ns el te st if

ie d t ha t h e b el ie ve d t ha t h e h ad su ff ic ie nt ly a tt ac ke d M .K .’ s c re di bi li ty.
Counsel testified that he su bpoenae d Will Campbe

ll and Camp

bell’s mot

her, My rtle Campbell, to te st if

y, but he did

not actua lly c all them to

testify at trial. Accord

ing to co unsel, My rtle Campbell said that she thought M.K. was “trouble” and did not want her “ha nging out” with her son. Counsel testified that it was a tactical decision not to call Campbell or his mother to testify

. White tes tified that prior to trial, he was not aware of the identities of any one who sinc e claimedto have ha

d sex with M.K. while she was living in the Kimbrell house, nor did he know the identities of anyone othe

r than Danielle who had an y kn ow le dg e t ha t M .K . w as ha vi ng se x w it h b oys her own a ge. He stated tha

t if he ha d known tha

t there w ere peo

ple who c ould

testify as to M.K’s sexual history, he cer

tainly would have used

them at trial. White also stated that he did not know about the allegations M.K.’s cousin, Margo, made a gainst her adoptive father, but would have used the infor mation to pr

ovide motiv es for M. K.’s alle gationshad he been awar e of the a llegat ions.

White was u nable to provide any reason why

he made no attempt at trial to exclude or t o object to testimony about unindicted charg es against the Defendant. He also had no explanation as to why he fa

iled to insist that the Assistant District Attorney make a formal election of the charge s for which convictions were sought. He acknowledged that the jury came back and asked for the bill of particulars. He also ack

nowledg ed that the State

referred to each indicted off ense and explained that the indicted charges were the ones that M.K. remembered with specificity

. White testified that he did not introduce M.K.’s diary or letters because he was try ing to show that M.K. was not happy

in the Kimb

rell’s ho me and that her

motive in accusing the Defendant was2 Ho weve r, the mo tion m ay be m ade at a later tim e if the co urt dete rmine s that the ev idenc e is new ly discover ed and

cou ld not have b een disco vered ea rlier through due d iligence or that the iss ue related to the evi dence is newly ari sen. Tenn. R. Evid. 412 (d)(1)(i).
-16- to be able to leave that home. He stated that it was a tactical decision not to call Franc es Kimbre ll to tes tify because

he was unsure what she would say regarding the nig

ht she left the home. He testified that he di d not know a bout L onnie

Kimbrell and the charg es that we re broug ht against him. Regarding Danielle

Kimbrell, counsel explained that he did not call her to testify for tactical
reasons
. The trial court also noted that Danielle Kimbrell’s testimony probabl y w ould not have affected the jury’s ver

dict. The trial court stated that counsel was not ineffective for fail ing to ca ll James Kimbrell or Danny K imbrell to testify as chara cter witne sses. Accord

ing to the trial cou rt, counsel explained why he did not ca ll family members to testify

. The trial court

found that counsel was not ineffective for failing to cross-examine M.K. about her diary. The c ourt stated that it was a tactical decision by cou nsel tha t was “consistent with the defense th eory at trial.” The trial court noted that there was “no showing . . . from review of the diary or . . . any other

evidence, that this would . . . have prejudiced [the Defendant] . . . or the case at all.”
However, we conc lude that counsel’ s strateg

y w as d eficie nt because it was founded on an inadequa te understanding of Tennessee Rule of Evidenc e 412. We further conclude that inad

equate preparationis responsible for trial counsel’s lack of understanding of Rule 412. An abundance of legal authority

pertain ing to Rule

412 was a

vailable to counse

l prior to trial. Counsel should have been very

fami liar wit

h possible situations in this case that would “open the door” for the admissibility

of such evidence. Although evidence of a victim’s past sexual experiences or sexual reputation is generally

notadmissible, such evidence may be admissible to rebut or

explain medical or scientific testimony. Tenn. R. Evid. 412(c )(4)(i).

Tennessee Rule of Evidence 412 provides that evidence of a

sex offense victim’s reputation and specific

instance s of sexual

behavior are ge nerally inadmissible, with certain exceptions. Tenn. R. Evid. 412(b). Evidence of specific instances of c onduct relative to the victim’s sexual behavior withpersons o ther tha

n the def endant isadmissible

if offer ed to rebut or expla

in medica l or scien tific te st im on y. Tenn. R. Evid. 412(c)(4)(i). The State may open the door for evi dence c oncern ing a victim’s prior sexual behavior by presenting expert evidence of an injured hy men or other evidence indicating that a victim has been sexually pene trated. See gener

ally Tague v. Richards , 3 F.3d 1133 (7th Cir.1 993); United States v. Begay , 937 F.2d 515 (10th Cir.1991).

In ord er for Rule 412 evidence to be admissible, the defenda nt must first file and ser ve a written motion to of

fer such evidenc e no late

r than te n day s before

trial is scheduled t

o begin , with such motion containing a written offer of proof of the specific ev

idence a nd the def endant’ s purpose in introducing it. Tenn. R. Evid. 412(d)(1). 2 The court must then hold a hearing outside the hearing of the public and the jury to dete rmine whether it will allow admission of the evidence by balancing-17-

the probative value of the evidencewith its unfair prejudice to the victim. Tenn. R. Evid. 412(d)(2), (4).

Trial counsel testified at the hearing on the motion for new trial that he could not fore see the prosecution “open[in g] th e door” to allow testimony of M.K.’ s sexual activities with others to be introduced. However, trial counsel was aware prior to trial of the medical evidence to be introduced by the State. Trial counsel also knew that M.K. maintained she had not had sexual

intercourse with anyone but the Defendant; she told him so herself when he interviewed he r prior to trial. Moreover, the door actually wa s opened. First, M.K. testified that she had never had sex with any one but the Defend ant. It wa s opened again w hen the medical evidence was introduced. I t was opened, ye

t again, during c

ross-exa mination of

the Defe ndant: Q: And I believe y

ou told Mr. Ly

ttle here that you we

ren’t aware of

any op po rt un it y, where [M. K.] would ha ve been able to have se

x with an y bo ys unless she

done it wh

ile she wa s at schoo l, isn’t tha t what y ou told him? A: Yes, pre

tty m uch so, I believe that is cor

rect. Q: And that would

be . . . stil l be true today, y ou are not aware of any ot he r t im es sh e w ou ld ha ve ha d s ex wi th an ybo dy? A: I have found out a lot of things since she left.

Trial counsel fa iled to fol low up on any of those oc casions. We conclude that counsel’s failure to recognize that this evidence would be presented, thus “ope ning the door,” indicates that trial counsel’s representation fell below the range of competenc e demanded of attorneys in criminal
cases.
In State v. Brown , 29 S.W.3d 42 7 (Tenn. 2000), ou r suprem e court reversed

an aggravated rape conviction beca

use the defendant was denied the opportunity to present to the jury cr itical evidence concer

ning sta tements th at the mi n or female victim had sexual intercourse with an adolescent

male during the time peri od in whic h the def endant w as alleg ed to have raped th e victim. See id. at 431, 436. In Brown , as in this case, the State’s case against the def endant consistedof the testimonyof the al leged v ictim tog ether wi

th the State’s expert medical proof. The Brown decision includes the following language , which we believe applies directly to the instant case: Excluding the proffered evidence esse ntially deprived B rown of an opport unity to present to the jury critical e vidence of an altern ative explanation for the complainant’s hymenal injury . In the absence of this evidenc e, the jury no doubt attributed the complainant’s physica l condition to Brown’s alleged criminal conduct. As previous ly

noted, when the prosecution relies upon evidence of a complainant’s physical condition in a sexual assault/abuse case involving an und erag e rape complain ant, defense

evidenc e th at p rovides an alternative explanation for the condition is particula rly

critica l. Ind eed, the only evidenc e which ma

de this ca se more than a pure credibility contest was the State’s expert proo f o f p hys ical injury to the compl ainant. Significantly, the State’ s own medical expert conced ed on cro ssexamination that the physical injury he observed w as consistent with the complainant engaging in a consensual sexual encounter with an adolescent male. Under such-18-

circums tances, depriving the defendant of the rig ht to present critical, reliable hearsa y evidence of an alternative explanationfor the injury is constitutional error. We are unable to conclude that error was harmless bey ond a reasonable doubt

in this case. Id. 435.

It is important to note thatin our view the Rule 412 evidence that counsel failed to present
was not inadmissible under other evide ntiary rules. Two witnesses testified in post-trial hearings that they had sex with

the victim . One witness testified that the victim told her that she (the victim) had
sex with Jessie B rown, wh ich is a pr

ior incon sistent sta

tement by

the victim . Another witness testified that the victim inquired about “sexual techniques” to be utilized by the victim with the victim’s boyfriend, whic

h is also arguably

a prior inconsistent statement by th e v ic ti m. Fi na ll y, the victim’s know ledg e of her co usin’ s accusati ons of

sexu al abuse

against a foster parent and the resulting removal

of the cousin from the home i s certainly r elevant as to the issue of the victim’s motive for

making t he accu sations a

gainst t he Defe ndant.

We note that the trial court found that the testimony of Will Campbell and Jessie Brown was notcredible, and we are mindful that questions concer ning the credibility of

witnesses and the weight and value to b e given

to their testimony are

gener ally resolve d by

the trial court ra ther tha n this cour

t. Statev. Brown , 6 S.W.3d 453, 461 (Tenn. 1999). However, in light of the abundance of Rule 412 evidence that should have been presented to the jury for its consideration, we c onclude tha t the deficiency

in counsel’s performance was prejudic ial in terms of r

enderin g a rea sonable p

robabilit y that the result of the trial was unreliable. Strickland , 466 U.S. at 69 4. Altho ugh the trial court determinedthat coun sel chose not to present some Rule 412 evidence for strategic reasons, we note that deference to matters of strateg y and tactica

l choices applies only if the c hoices are informed ones basedupon adequate preparation. Henley v. State , 960 S.W.2d 572, 579 (Tenn. 1997). As we have stated, trial counsel was not adequately informed or prepared with reg ardto the Rule 412 issues

. Further, the issue of counsel’s effectiven ess is re viewed under a de novo standard with no presumption of correctness. Fields v. State , 40 S.W.3d 450, 457 (Tenn. 2001).

We believe the prejudicial effect of trial counsel’s deficient representation is demonstrated by the empha sis place d on the la ck of evidence of

any prior sexual activity

of the victim. During closing argument, the prosecutor state d:

Sue Ross, who is an expert in the a rea of doing phy sical examinations on abused children, to determine what injuries and how they we re suffered, and how - she can explain that and how that relates to whether or no t a crime h as been committed. She told you that on the 7th day of January of 1998, af

ter this was reported, that she examined [M.K.]. And s he ca n s ay - [M.K.] has suffered a penetrating in ju ry, trauma to the vagina. Which indicates that [M.K.] has had sexual intercourse. So, this - we know that [M.K.] has had sexual intercourse. Now, [M.K.] tells you that prior to January 7th, 1998, when [M.K .] wa s examined by

Sue Ross, [M.K.] never had sex with anyone but that man right ther e,-19-

James Kimbrell. That is the only man [M.K.] ever had sex with before [M.K.] was examined. There has not been one iota of proof that [M.K.] had sex with anyone before that date, exc ept James K

imbrell. A

nd Mr. Kimb

rell himself s aid - I don’t know when [M.K.] would have had a chance to have seen a boy except at school. And we all know fro m his testimony a nd every body ’s testimo ny - and almost in agreement here, that he kept all of these children under c lose ramp and guard. They didn’tgo anywher e except to church and sch ool. And e ven we later know that [M.K.] was home schooled. Only he had the opportunity. And the only proof tha t [M.K.] had had sex withanyone be

fore January 7th, 1998, was [M.K.’s ] testimony that it was Mr. Kimbrell and that was the only pe rson.
Becau se th er e w as a r ea so na bl e p ro ba bi li ty t hat t he result of the trial would have been different had the ju ry heard th e Rule 412 evidence, the Defendant was denie d his constitutional right to effec tive assis tance of counsel. The fail

ure of tr ial couns e l to render effective repr esentation prejudiced

the Defe ndant and

prevent ed him fro m receiv

ing a fa ir trial w ith a reli able re sult. Ac co rd in gl y, we must reverse theconvictions and remand for a new tria l. Howeve

r, we will addres s the remaining issues in this appeal. B. Newly -Discovered Evidence The Defendant arguesthat the trial court erred by

denying his motion for a new trial based on newly discover

ed evidence. Sp ec if

ic al ly, the Defendant argues that informa tion that M.K. had sexual relations with boys other than the D efendant constitutes newly discovered evi dence tha t entitles him to a ne w trial. I n addition , the Def

endant a rgues t hat he sho uldbe allowed to introduce evidence that M.K. was interested in the outcome of a case involving similar

allegations against the Defendant’s brother.

A new trial on the basis of newly -discovered evidence should be gr anted in cases where (1) the de fe nd an t h as be en re as on ab ly diligent in obtaining evidence, (2) the materiality of the new evide nce is appar ent, and (3) the evidence is likely to change the result of the trial. State v. Singleton , 853 S.W.2d 490, 496 (Tenn. 1993). In order to be entitled to a new trial ba se d o n n ew lydiscovered

evidenc e, a def

endant mu st

demonstrate that all three prongs of the test have been met

. See State v. N

ichols , 877 S.W.2d 722, 737 (Tenn. 1994).

We conclude that the Defendant failed to show that he wa s reasonably diligent in obtaining this evidence. Trial counsel knew before trial that the Defendant

and other members o f his fami ly had reason to believe that M.K. had engag ed in sexual relations with other juv eni le males. The record shows that the allegations against the Defe ndant were made i n Novem ber 1997, the indictmentwas handed down in May 1998, and the trial was held in September 1999, allowing the Defendant

ample time to explore alternate theories. Two of the new witnesses were fo und within two months of the trial, in time for the sente ncing h earing in November 1999. Bec ause the-20-

Defendant

has not met the first prong of the test pertaining to his reque st for a new trial ba s ed on newly-discove

red evidence, this issue is without merit.

C. Evidence of Uncharged Sexual Offe nses
The Defendant argues that the trial court erred by allowing the State to introduce testimony concerning uncharg ed offe nses alle ged to

have occurred during

the same period of time as the fifteen specific incidents charged in the in dictment. Evidence of other crimes, wrongs, or acts is not admissible

to prove the character of a pe rson in order to show action in conformity with the character trait. Tenn. R. Evid. 404(b). It may , however, be admissible for other purposes. Id.

In State v. Rickman , 876 S.W.2d 8 24, 829 (T enn. 1994 ) the Ten nessee Su preme Cou

rt held that there is no general “sex crime” exception to the generalrule against admitting evidence of other crimes. see also State v. B urchfie ld , 664 S.W.2d 284, 287 (Tenn. 1984). However, the Rickman court did re cognize that, as a limited exception, the State should be allowed some latitude in the prosecution of criminal acts committed against y oung children who are frequently una

ble to identify a specific date on which a particular of fense was committed. Rickman , 876 S.W.2d at 828.

The State argues that the Defendant waived his right to appeal this issue by failing to object to the testimony

at trial. We agree. By

not objecting at trial, the Defendant “failed to take whatever action was reasonably

available to prevent or nullify the harmful effect of an error .” Tenn. R. App. P. 36(a). “

When a par

ty does not object to the admissibility of evidence, . . . the evide nce becomes admissible

no tw it hs ta nd in g a ny o th er [r ]u le of [e ]v id en ce to th e c on tr ar y, and the jury may consider that evidence for its ‘natural probative eff ects as if it were in law admissible.’” State v. Smith , 24 S.W.3d 274, 2 80 (Te nn. 20 00) (q uoti ng State v. Harrington , 627 S.W.2d 345, 348 (Tenn. 1981). In the absence of a contemporaneous objection to proffered evidence in a criminal prosec ution, the evidence is compete

nt, and any c omplaint about the admission of such evidence is waived. State v. Hooper , 695 S.W.2d 530, 536 (Tenn. Crim. App. 1985).
Further, with rega rd to brief testimony

of the vic tim perta

ining to i ncidentsallege dly occurring in Putnam County prior to th

e first incidents alleged in the indictment, the trial court stated that it “g av e a n e xh au st iv e i ns tr uc ti on to th e j ur y tha t they were not to consider any a

ction that occurred outside of Fentress County in this case .” There is a presumption that the jury complied withthe court’s instruction. Frazier v. State , 566 S.W.2d 545, 551 (Ten n. Crim. Ap

p. 1977); Bennet

t
v. State , 530 S.W.2d 788, 7 93 (Tenn . Crim. App . 1975); Craig v . State , 524 S.W.2d 504, 508 (Tenn. Crim. App.1974) . We cannot conclude that the testimony “more probably tha n not affected

th e judgmen t” in this case. Tenn. R. A pp. P. 36(b ); see also

Tenn. R. Crim. P. 52(a). Therefore, we find this issue without mer

it.

D. Severance The Defendant argues tha t the trial court erred by

not severing the offenses in this case. A trial court’s denial of

a motion for severance will be reversed only when there has been an abuse of-21-

discretion. State v. Shirley , 6 S.W.3d 243, 247 (Tenn. 1999). This Court will not interfere with the exercise of this discretion unless it appears on the face of the record that the accused wa s prejudiced by the trial court’s ruling. State v. Wiseman , 643 S.W.2d 354, 362 (Tenn. Crim. App. 1982). Whether severa nce shou ld be gr

anted “d epends u pon the fa

cts and c ir c umstances involved in the various crimes that are charged.” Statev. Morris , 788 S.W.2d 820, 822 (Tenn. Crim. App. 1990).

Rule 14 of the Tennessee Rules of Criminal Procedure provides as follows: “I f two or more offenses have been joined or consolidated for trial . . . , the defe ndant shall hav e a right

to a severance of the offenses unless the offenses are part of a common scheme or plan and the evidenc e of one would

be admiss ible upon t

he trial o f the oth ers.” Tenn. R. Cr im. P. 14(b) (1). To a

void severance, bothportions of the rule must be satisfied. See State v. Hallock , 875 S.W.2d 285, 289 (Tenn. Crim. App. 1993).

The first prong of Rule 14(b)(1) of the Tenne ssee Rules of Criminal Procedure requires that the trial court find a common scheme or plan. In Tennessee, there arethree categories of common scheme or plan evidence: (1) evidence showing a distinctive design or signature crime; (2) evidence demonstrating a larger, continuing plan or conspiracy ; and (3) evidence that the offenses ar e part of the same transaction. Statev. Moore , 6 S.W.3d 235, 240 (Tenn. 1999). “Before multiple offenses may be said to reveal a distinct ive desig n, . . . the ‘modus ope

randi em ploy ed must be

so unique and distinctive as to be like a signature.’” Id. (citi ng Statev. Carter , 714 S.W.2d 241, 245 (Tenn. 1986)).

Howeve r, the Te nnessee Supreme C ourt has n oted that “the mere exist

ence of a common s cheme or

plan is not a

proper justification for admitting evidenc e of othe r crimes

. Rather, admission of evidence of other crimes which tends to sh ow a commo n scheme or plan is proper t

o show ide

ntity , guilty knowledge, intent, motive, to rebut a defense of mistake or

accide nt, or to e stablish
some other relevant issue. Unless expressly tied to a relevant issue, evidence of a
common scheme or plan can only serve to encourage the jury to conclude that since the defendant committed the other crime, he also committed the crime c harged.” Id. at 239 n.5 (q uoti ng State v. Hallock , 875 S.W.2d 285, 292 (Tenn. Crim. App. 1993)). This court has also stated that “a common scheme or plan for seve rance purposes is the same as a common scheme or plan for evidentiary

purposes.” Id. at 240 n.7 . Thus, Tennessee Rule of Evidence 404(b) is also relevant to our analy sis of this issue. See State v. McCary , 922 S.W.2d 511, 513-14 (Tenn. 1996). The second prong of Rule 14(b)(1) of the Tennessee Rules of Criminal Procedure requires that the evidence of each of the off enses be admissible at the trial of the other. Evid ence that the
accuse d committed

crimes in depende

nt of those

for which he is on tr

ial is ge nerally inadmiss ibl e because such evidence lacks relevance and invites th e f in de r o f f ac t t o i nfer gu il t f ro m p ro pe ns it y. See Moore , 6 S.W.3d at

239; see also Tenn. R. Evid. 404(b). However, evidence of other cr imes, wrongs , or acts may be

admissible for other purposes. Id. The “primary inquiry” in any

severance case is whether the evidence of one offe nse would be admissible in the trial of the other if the two offenses remained severed. State v. B urchfie ld , 664 S.W.2d 284, 286 (Tenn. 1984).-22-

In this case, the Defendant was indicted on thirty-two differe

nt charges. The Defenda

nt filed
a motion to sever the charges of rec kless endan germen t and reckless driving from the sexual offense s, which was granted. However , counsel did not move to sever the remaining sexual offenses from each other. At the beginning of trial, the court n oted that the parties agreed that there were actually twenty -five c omplete

charges aga

inst the Defendant, including five counts of rape of a child, five counts of rape, and fifteen counts of ince st. The trial court later dismissed t

hree ch arges . All of the twenty-two re

maining charges relate to thirteen specific incidents occurring between 1990 and 1997. Thus, the Defendant was tried on and convicted of f our counts of rape of a child, five counts of rape, and thirteen counts of incest. The factual basis for these convictions involved fourteen specific incidents between 1990 and 1997.

We conclude

that the tr ial cour t did not err b y no t severing the ch argesagains t the Def endant. We note that the Defendant did not file a motion for se veranc e of the s exual off enses, w hile specific ally

moving for a severance of the two non-sexual offense s. Thus, the Defendant has waived this issue. See Tenn. R. Cr im. P. 14(a

); Spicer v. State , 12 S.W.3d 438, 443 (Tenn. 2000).

E. Doctrine of Election

The Defendant

argues that there was no proper “election” by

the State and that this error was compoundedby t

he failu re of the trial cou rt to prop erly

instruct t

he jury on how the

y w ere to consider the evide nce of th e unindic ted offe

nses. The doct

rine of e lection r equiresthe State

to elect
a set of fa cts when it has cha

rged a defenda nt w ith one o ffense , but ther e is evide nce of multiple offense s. State v. Brown , 992 S.W.2d 389, 391 (Tenn. 1999). Where evidence of unindicted offenses is introduced at trial, it is “the duty of the tria l judge to require the State, at the close of its p roof-in-chief, to elect the particular offense . . . upon which it would rely for con viction, and t o properl y instruct the jury so tha t the verdict of every juror would be united on the one offense.” Burlison v. State , 501 S.W.2d 801, 804 (Tenn. 1973).

The Tennessee Supreme Court has held that election is required for th ree fundamental
reasons : “[f]irst, to enable the defe ndant to pr

epare f or and ma ke his def ense to the specific charge; second, to protect him from double jeopardy by

individualization of the issue . . . [;] and third, so that the jury’s verdic t may not be a matter of choice between

offense s, some jurors convicting on one offense and others, another.” Id. at 803.

“The necessity o f requir

ing the St ate to mak

e an ele ction of th

e particular off

ense it wi ll rely
on for conviction . . . is . . . f undament a l, immediately touching the c onstitutional rights of an accused, and should no t depend upo n his demand therefor.” Id. at 804. Although the federal constitution’s requirement of unanimity a mong jurors ha s n ot bee n imp osed o n the s tates throu gh the Fourteen th Amendment , “there should be n o question

that the unanimity

of twelve

jurors is required in criminal cases under our state constitution.” State v. Brown , 823 S.W.2d 576, 583 (Tenn. Crim. App. 1991). A defendant’s right to a unanimous jury before conviction requires the trial court to take precautions to ensure that the jury deliberates over the

particular charged

offense, instead of-23-

creating a “patchwork verdict” based on different offenses in evidence. See id. (citi ng United States v. Duncan , 850 F.2d 1104, 1110 (6th Cir. 1988)).

The State argues that the record cle arly demonstrate s that the closing argument focused the jury’s attention on the exact acts upon which the State asked the jury to deliberate in determining the Defendant’s guilt. The State maintains that this constituted a de factoelection. The State relies on Statev. William Dearry , No. 03C01 -9612-CC- 00462, 199 8 Tenn. Cr im. A pp. LEXI S 165 (Tenn. Crim. App., Knoxville, Feb. 6, 1998) to support the proposition that the Sta te can, in effect, elect the proof upon which it sought conviction, even though the trial court did not explicitly require an election. Id. at * 32.

We agree, an d ev en the Defendant concedes, that the prosecutor did an admirable job of trying to “sort this out” during his closing argument to the jury. I

n our view, the prosecutor during argument did in fact effectively

elect the proof upon which the State wished to proceed in each count of the indic tment. The

Defend ant prope

rly asserts t hat the pr osecutor ’s argument is neither evidence
nor a substitute for a proper

jury instructi on. Both a

n electio n by

the State and a jury instruction ar

e required to sa feguard

the accused’s constitutional rights. See Burlison 501 S.W.2d at 803. Our review of the record show s that t he tr ial judge failed to require the State to make an e lection and failedto give t

he jury any instructi on inhow it was to consider the proof presented of the unindicted of fenses. Ho wever, we conclude that any error pertaining to this issue was harmless bey ond a
reasona ble dou bt un der the circumstances of this case. We are convinced that the Defendant receiv ed a una

nimous ver

dict in ea ch count. This issue

is without me

rit. F. Closing

Argume nt by the State

Fi na ll y, the Defendant

argues that the District

Attorney improperly

argued to the jury

that the defense attorney “needs to explain the situation that we read about all the time in the papers where
women have - w

ho are in their thir ties, thei r fortie s, finally

come forward and talk about how they
were sexually

abused f or y ears . . . .” I

mm ediately

afte r this statement, the defense objected and argued that the statement was “outside the fa cts of this case.” The trial court then stated, Ladi e s and ge

ntlemen, this is clos ing arg ument. No w, what w e have here is n o t evidence. We have the lawy er’s interp retat ions and th eir explan ations of

their respective theorie s in this ca se. What the lawy ers say at this poin

t is not evidence. It is merely there

to help y ou. You can factor in the evidence that y ou heard yesterda y and that i s what y

ou are to consider this case on. But they

are her e to explain what

. . . their side is. I am going to overrule the objection, but y ou can respond. Lawy ers are prohibited from

arguing facts which ar

e outside the record. State v. Beasley, 536 S.W.2d 328, 330 (Tenn. 1976). Where argument is improper, the e stabl ished tes t f or determining whether there is reversible error is “whether the improper

conduct could have affected the ve rdict to the prejudice of the defendant.” Harring ton v. State , 385 S.W.2d 758, 759 (Ten n. 1965); State v. Bigbee , 885 S .W.2 d 797, 809 (T enn. 1 994). In determ inin g w hether t h e improper argument-24-

prejudiced

the defendant, theappellate court must consider: “1) the conduct complained of, viewed in light of the facts and circumstances of the case; 2) the curative measure s undertaken by the court and the pr osecutio n; 3) the intent of the prosecutor in making the improper ar gument []; 4) the cumulative effec t of the imp roper c onduct and any

other er rors in the

record ; and 5) the relati v e streng th and weakness of the case.” State v. Middlebrooks , 995 S.W.2d 550, 560 ( Tenn.199 9); State v. Bowers , 77 S.W.3d 776, 788 (Tenn. Crim. App. 2001).

In this case, defense counsel objected immediately after

the State made the remarks. The trial court i mmediate ly ga

ve a curative instruction, and a similar instruction was included in the jury charge. We agree with the State that the Defenda nt has failedto show that the State’s argument was grossly improper or that the Defendant was prejudice d by it in light of the instruction by the trial court. While the State’s comments may not have been properly

worded, we find any

error regarding the State’s contested statement during closing arguments to be harmless. Defense counsel made a point during examination of M.K. of eliciting testimony that she had n ot repor

ted any sexual abu se to any one over

the y ears, even thoug

h she had many opportuni

tie s to do so and even though she made other complaints to the authorities about her adoptive mother.

For the reasons set forth in the discussion above, we conclude that the De fendant was denied effectiveassistanc e of coun sel. We, therefor e, REVERSE

the Defe

ndant’s c onvic tions and REMAND this case

to the Fe ntress Cou

nty Criminal Court for f

urther p roceed ings con sistent wit

h this opinion.

___________________________________ ROBERT W. WEDEMEYER, JUDGE