# FILED
April 30, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE MARCH 1999 SESS ION

STATE OF TENN ESSEE, ) ) NO. 01C01-9804-CR-00192 Appellee, ) ) SUMNER COUNTY VS. ) ) HON. JANE WHEATCRAFT, MICHAEL D. KEEN, ) JUDGE ) Appellant. ) (Incest)

FOR THE APPELLANT : DAVID A. DOYLE District Public Defender 117 East Main Street Gallatin, TN 37066-2801 (On appeal) JOHN D. PELLEGRIN 113 West Main Street Gallatin, TN 37066-3231 (At trial) FOR THE APPEL LEE : JOHN KNOX WALKUP Attorney General and Repor ter ELIZABETH B . MARNEY Assistant Attorney Gener al Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 LAWRENCE RA

Y WHITLEY District Attorney General SALLIE W. BROWN Assistant

DistrictAttorney

General 113 West Main Street Suite 300 Gallatin, TN 37066-2803

OPINION FI LED:

AFFIRMED IN

PART; REVERSED AND REMANDED IN PA RT
JOE G. RILEY, JUDGE1 This Court's polic y is to identif

y minor victim

s of sex crimes by

their initials. 2 OPINION

A Sumner County

jury convicted defendant,Michael D. Keen, of two counts of incest , Class

C fe lon ies. The trial court sentenced him as a Range I standard offenderto six years incarceration for each conviction, consecutive. On this appeal as of right, defendant raises the following issues: 1. whether

the trial court erred in allowing testi mony about other sex crimes allegedly commit ted by him; 2. whether

the trial court erred in allowing fresh c omplaint testimo ny; 3. whether

the trial court erred in allowing his psychiatrist and psychiatri c social worker to t estify about certain matters; 4. whether his trial c ounsel was ineffective; and 5. whether his sentence is excessive. Upon our review of the rec ord, we REVERSE AND R EMAND for retrial one of defendant's convictions, and AF FIRM the other convic tion and sentence.

FACTS

The victim in this case is defendant's stepdaughter, H. K. 1 She testified that she initi ally conse nted to h ave sex with defendant during the spring of 1994 when she was fourtee n years ol d. She claim e d that they had intercourse "[p]robably anywhere from 10 to 15" times. She did not specify when the encounters oc curred. She testified that she also per formed oral sex on defendant, but again did not specify when these incidents occurred. H.K. also testified that, afte r s he had sex with defendant, he would give her and he r siblings l iquor and marijuana. Her d escri ption on direct examination about the last time she and defendant had sex was the following:3 Q: Do you remember approximately wh en was the last time you an d Mr. Keen had sex? A: It was probablya month and a half before I told, which was April 23rd of [1996]. Q: So sometime during March of that year? A: Yes. H.K. initially reported her allegations to her m oth er, Marilyn Wood, in April 1996. Wood took her children out of the house and when she returned, defendant
was gone. Wood testified thatdefend ant calle d her the n ext day, "crying , telling me he was a sick man, that he w anted me to stick by him and help him get help." She further testified that defendant admitted to her i n May 199 6 that he "had sex with [H.K.] for over a year." On Ma y 5, 1996, defendant was admitted into a hospi tal. Calvily Evonne Allmon, the psychiatric soci al worker who interviewed him upon his admi ssion, testified that, "[a]ccording to [her ] notes [defendant] admitted to sexual abuse with his stepdaughter." Dr. Robert A. Jack, the psy chiatrist who treated defendant at the hospital, testified that part of the May 13, 19 96, discharge plan was that he attend treatment at a sexual pe rpetrators program. H.K.'s allegations were not rep o rted to the police until Ju ly 31, 1996, when she told Detective Susan M orrow, "that her stepfather was ha ving sexual intercourse with her and she was performing oral sex on him." Morrow also testified that H.K. had reported defendant giving her alcohol and marijuana after their sexual encounters. Defendant testified and admitted giv ing H.K. alcohol and marijuana. He also admitted talking wi th H.K. about having sex ual relations with her. He denied, however, that he ever

had sex with her. He further denied having told Allmon or Dr. Jackthat he had sexual relati ons with her. He testi fied that Wood to ld him she wanted a divorce and that if he "messed this up for her . . . [she] w ill say that [he] raped [her] daughter."4 ELECTION OF OFFENSES
Although not ra is ed by defendant on this appeal, it is our responsibility to
reverse his conviction for inc est under Count

One o f the indictment because the sta te faile d to properly elect an offense, thereby violating defendant's right to jury unanimi ty. See State v. Walton , 958 S.W.2d 724, 727-28 (Tenn. 1997). The state's omission constitutes plain error. Id. ; see Tenn. R. Crim. P. 52(b). CountOne of the indictment provides a s follows: "[Defendant] heretofore on or about the Spring of 1994, . . . did unlawfully, knowingly and feloniou sly engage in sexual penetration w ith [H.K.], a person he knew to be his step-daughter." The indictment

thus covers a period of sev eral months and furth er covers all acts of sexual penetration, which include both sexual intercourse and oral sex. See Tenn. Code Ann. § 39-13-501(7). H.K. testified that she beganhaving sex wi th defendant in the spring of 1994, that they had interc ourse ten to fifteen times, and that they also engaged in oral sex. No specific time frame was established for these multiple sex acts. During closing argument the pr osecutor contended, "[t]his happened to her

. . . over a period of . . .two years, ending in March of 1996." The pr osecutor further stat ed to the jury, "it's been proven to you, beyond a reasonable doubt, that thi s man, Michael D. Keen, had sex ual intercourse with

his stepdaughter [H.K.],on, at least , two occasions, as in the indictment, beginning in the spring of 1994 and ending in March of 1996" (emphasi s added). The evidence in this case suggest s that defendant committed multiple sexual offenses against H.K. during the time period covered i n Count One of the indictment. Accordingl y, the trial court should hav e required the state to

elect the particular offense for which it was seeking a c onviction in order

to ensure that the jury's verdict was unanimous

. See Walton , 958 S.W.2d at 727. "This requirement is 'fundamental, immediately touching the constitutional rights of an accused.'" Id. (quoting Burlison v. State , 501 S.W.2d 801, 804 (Tenn. 1973)).5 With respect to Count One, it appear s that the state was attempt ing to convict defendant for the first time he had sex with H .K. However, the pr oof was not
so limited. Rather, it included test imony ab out multiple sex acts, of tw o different types, with no specificity as to events. Thus, because the state was not requi red to elect a specific offense for which it was seeking conviction, there is no assurance that each juror relied upon the same evidence in convictin g defend ant. Acco rdingly, defendant's c o nviction of incest under C ount One of the indictment must be reversed and remanded for a new trial. Defendant's conviction under Count Tw o of the ind ict ment does not suffer from the same problem. That count provides: "[Defend ant] heretofore on or about March, 1996 . . . did unlawfully, knowi ngly and feloniously engage in sexual penetration with [H.K.], a person he knew to be his step-daug hter." The proof specific to t his count was H.K.'s testimony that the last ti me she had sex with defendant wasin March 1996. Thus, the jury did not have the same "brimming bag
o f offenses," Tidwell v. State , 922 S.W .2d 497, 501 (Ten n. 1996) , from wh ich t o choose in deciding to conv ict defendant of this offense.

EVIDENTIARY

ISSUES A. Other Crimes Defendant asserts that the trial c ourt should not have allow ed proof about
sex crimesother than those for which he was indicted. The state responds that th is issue is waived because t rial counsel did not contemporaneously obj ect. The state is correct in this r

egard. See

Tenn. R. App. P. 36(a). Furthermore, we find this issue to be without merit. Defendant is correct that there is no "sex crimes" exception t o the general rule prohib iting proof of an accused's other

crimes. See State v. Rickman , 876 S.W.2d 824, 829 (Te nn. 1994);2 However, when such eviden ce is admitted, the state

must elect the spec

ific offense for which it seeks conviction. Shelton , 851 S.W.2d at 137. 6 Tenn. R. Evid. 404(b). Ho wever, proof of other sex crimes is admissible if the y occurred during the time period covered by the indictment. 2 Id. As set forth above, the state elicited testimony from H.K. about multi ple sex acts which were implied as occurring during the several month period covered by Count One of the indictment. Had the state elicited proof of sex acts o ccurring after

the Spring of 1994 and before the final episode, its admission might have been error. Id. The proof in this
case was not so s p ecific. However, to the extent that the proof can be so construed, we f ind its admission to have been ha rmless error with respect to defendant's conviction under Count Tw o. See Stat e v. Dutto n , 896 S.W.2d 114, 117 (Tenn. 1995). H.K.'s testimony about her last sexual

encounter with defendant and her subsequent decision to tell her mother about what had been happening was clear and unequivocal. It

was corroborated by

her mother's testimony. Defendant admitted enough of H.K.'s allegations to ju st ify the jury in concluding that H.K.'s testimony

was credible on the w

hole. Accordingly,any proof of sex acts that did not fall within the indicted period did not "more probably thannot" affect the judgment of conviction on Count Two, and defendant is not entitled to reversal of his seco nd conviction on this g round. Id. ; Tenn. R. App. P. 36(b).

B. Hearsay Defendant next complains about the tr ial court's admission of "f resh complaint" testimony. Specifically, defendant conten ds that Detective Morr ow should not have been allowed to testify about what H.K. told her. Morrow was the state's first witness in its case-in-chief. She testified, inter alia , thatH.K. a lleged "that her stepfather w as having sexual i ntercourse with her and she was performing oral sex on him;" that defendant was H.K.'s uncle because he was her father's half or full brother; and that defendant would buy H.K. alcohol and marijuan a after havi ng sex with him.7 In State v. K endricks , 891 S.W.2d 597, 60 6 (Tenn. 1994), the Court overruled the longstanding rule announced in Phillipsv. State , 28 Tenn. (1 Hum.) 246 (1848), which allow ed both the fact and the details of a fresh complaint

to be admitted during the state's case- in-chief. In Kendricks , the Court held that, in cases involving adult victims of

sexual crimes, under the fresh complaint doctrine, "the fa ct that a compla int was

made is a

dmissib le in th e state's case- in-chi ef t o rebut the possible negative inference creat ed by the victim's s ilence." Kendricks , 891 S.W.2d at 60 6. "Once the credibility of the victim has been attacked, the details of the complaintare admissible to show tha

t the victim related the samestory soon after the incident." Id. This testimony is admiss ible only as corroborative evi dence, not as substantive evidenc e. Kendricks , 891 S.W.2d at 606. The c omplaint must be timely, but need not be contem poraneous wit h th e eve nt. Kendricks , 891 S.W.2d at 606. This court must consider the
rea sonablen ess of the delay in the complaint in light of all the circumstances, including the reasons for the delay and the age and mental c apacity of thevictim. Id. ; State v. Lewis , 803 S.W.2d 260, 264 (Tenn Crim. App. 1990). The Kendricks holding is limited to adult victims. Kendricks , 891 S.W.2d at 606. Fresh complaint ev idence is no

t admissibl e in cases w ith a child

victim. State v. Livingston , 907 S.W.2d 392, 39 4-95 (Tenn. 1995). In the context of

sex crimes, a "child" is defined as under thirteen years old. See Tenn. Code Ann. §§ 39-13-504(a)( 4) and 39-13-522(a). H.K. tes tified that her date of birth is February 11, 1980. The indi ctment covers the time period "Spring of 1994" and "March, 1996." Therefore, H.K. was fourteen years old in the spri ng of 1994, an "adult" for purposes of determining the admissibility of

fresh complaint testimo ny. See State v. Schuller, 975 S.W.2d 313, 321 (Tenn. Crim. App. 1997). However, she did not make her statement to Morro w until July 31, 1996. This was at least four months after the last alleged incident took pla c e, more than three months after H.K. told her mother. Under the circumst ances of this case , we hold that H.K.'s report to Morrow was not sufficiently timely to qualify as fresh complaint. Accordin gly, the trial court erred in admitting this evidence. However, given H.K.'s3 “Communications between a patient and a licensed physician when practicing as a psychiatri st in the course of and in connection with a therapeutic counsel ing rel ationship .

. . are privileged in proceedings before judicial . .. tribunals. Neither the psychiatrist nor any member of the staff may testify or be c ompel led to testify as to such communications or otherwise reveal them in such proceedings without consent of the patient except” under very limited circumstan

ces. 8 testimony

and the remaining proof in the r ecord, we also hold that the er ror was harmless. See State v. Speck , 944 S.W.2d 598, 602 (Tenn. 1997); Tenn. R. App. P. 36(b). Therefore, this iss ue is without merit.

C. Psychiatric Privilege In his next issue, defendant contends the trial court committe d plain error in admitting Dr. Jack's and Allmon 's testimony about what he told them while at the hospital. Defendan t is correct that patient-psychiatrist communications are privileged. See

Tenn. Code Ann. § 24-1-207. 3 However, he concedes that this issue is waived because he did n ot raise this issue in his motion for new tri al. See Tenn. R. App. P. 3(e). Hence, his reliance is on "plai n error." An error which ha

s af fected the substantial right of a defendant may be noticed at any time

in the discretion of the appellate cour t where necessary t

o do substantial justice. Tenn. R. Crim. P. 52(b). “Plain error” or “fundamental error” is recognizedunder Tenn. R. Crim. P. 52(b)

. State v. Stephenson , 878 S.W.2d 530, 553-54 (Tenn. 1994); State v. Adkisson , 899 S.W.2d 626, 639 (Tenn. Crim. App. 1994). Plain e rror is an egregious error that strikes at the “fairness , integrity or public repu tation of judicial proceedings.” United States v. Rodri guez , 882 F.2d 1059, 1064 (6th Cir. 1989); State v. Adkisson , 899 S.W.2d at 639-40 . Some errors
are so fundamental and pervasive that they require rev ersal without

regard tothe facts or circumstances of the parti cular case. D el aware v. Van Arsdall , 475 U.S. 673 (1986). In determining whether the admission of Dr. Jack's and Allmon's testimony constit utes plain error, we must consider whether each of the fol lowing require ments is met: 1. the record clearly est ablisheswhat happened in the trial court;4 The privilege d oes not apply

“to any situation

involving known or

suspected child sexual abuse.” Tenn. Code Ann. § 37-1-614(1996). As set forth above, however, H.K. was nota “child” at the time of thealleged offen ses. We also note tha

t the indictment in th

is case does not allege child sexual abuse. 9 2. a clear and unequivocal rule of law was bre

ached; 3. a substantial right of defendant's was adversel y affected; 4. defendant did not wai ve t he issue for tactical reasons; and 5. consideration of the error is 'necessar y to do substantial justice.’ Adkisson , 899 S.W.2d at 641-42 (citations omitted). In this case, the record cl early establishes the admission of the privileged communications. Moreover, a clear and une quivocal ru le of law -- the patientpsychiatrist privilege -- w as breached. 4 The state concedes that the issue was not waived fortactical reasons. Thus, w e must determine whether the error adversely affected one of defendan t's sub stantial rights and, if so, whether consideratio n of the error is necessary

to do substantial justice. Dr. Jack's testimony included the following privileged communications: 1. defendant reporte d that "he had propositioned one of his stepdaughters, and she had reported this to her mother;" and 2. part of defenda nt's discharge pl an was that he attend a sexual perp etrators program. Allmon’s testimony included the following privileged communications: 1. defendant reported "that his wife took the children, two stepdaughters, ag es 15 and 16, and their son, and left . . . . This followed t he oldest daughter telling her mother that [he] had propositioned her;" 2. he "admitted to sexual abuse w it h his stepdaughter;" 3. he informed her that he didn 't kno w if he was "evil or sic

k;" and 4. he was open to re f erral to the sexual perpetrator

s program.10

In light of defendant's own admiss ions on the stand about discussing w ith the victim theirhaving sexu al relatio ns, and in light of t he remai ning proo f in the re cord, we hold that the ad mission of this testimony, w hile error, does not ri se to the level of plain error requir

ing reversal. This

issue is without meri

t. In a related issue, defendant contends that the t rial court erred in allowing Allmon to testify that defendant told her he sexually abused his stepdau ghter. He arguesit was not relevant or, alternatively, any relevance was substantially outweighed by the danger of unfair prejudice, confusion of the i ssues, or misleading the jury. See

Tenn. R. Evid. 402, 403. Allmon was unable to cl arify the ti me period to which defendant referred, making the testimony questionabl e as proof of th e particular

crimes with whi ch he was charged. Moreover, the record establishes that defendant had two stepdaughters. Allmon did not identify w hich girl defendant allegedlyabused. Fina lly, All mo n did not specify what c onduct was meant by "sexual abuse." Regardle ss, we find that its admission did not so prejudice defendant as to require rev ersal. This issue is w

ithout merit.

INEFFECTIVE A

SSISTANCE OF C

OUNSEL

In conjunction with the foregoing issues, d efe ndant complains that his tri al counsel was ineffective. This Court reviews a cla im of ineffective assistance of counsel under th e standa rds of Baxter v. Rose , 523 S.W.2d 930 (Tenn. 1975), and Strickland v. Washington , 466 U .S . 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984 ). Defendant has the burden to p rove tha t (1) the attorney’s pe rformance was deficient, and (2) the deficient performance resulted in prejudice to the defendant
so as to deprive him of a fair trial. Strickland v. Washington , 466 U.S. at 687, 104 S.Ct. at 2064; Goad v. State , 938 S.W.2d 363, 369 (Tenn. 1996); Overton v. State , 874 S.W.2d 6, 11 (Tenn. 1994); Butler v. State , 789 S.W.2d 898, 899 (Tenn. 1990). Because we find that none of the errors complained of resulte d in prejudice which deprived defendant of a fair trial , this issue has no mer it. Defendant's11

contention that all of the trial court's erro rs, c ombined with trial couns el's alleged mistakes, prejudice d the judicial process is l ikewise without mer it. See Tenn. R. App. P. 36(b).

SENTENCING
Finally, defendant contends that his sentence on each conviction is excessive, and service of those sentences should not be consecuti ve. Defendant
was convicted of two Class C felonies. The range of sentence for these felonies for
a standard offender is three to six years. Tenn. Code Ann. § 40-35-112(a)( 3). The trial court enhanced each of defendant's sentences to the maximum of six years on the basis o f one en hancement factor: he had a previou s history of criminal convictions

in addition to those necessary to est ablish therange. Tenn. Code Ann. § 40-35-114( 1). The tria l court made a specific fi nding of no mitig ating factors. Defendant contends that the court should h ave applied as mitigati ng factors that his conduct neither caused no r t hreatened serious bodily injury, and that he acknowledgedhis guilt andexpressed remorse. Tenn. C ode Ann. § 40-35-113 (1) and (13). The State disagrees and further argues tha t the trial court erred in refusing to apply two additional enhancement factors: the offenses were committed to gratify his desire for pleasure and excitement; and he abused a position of private trust. Tenn. Code Ann. § 40-35-114 (7) and (15). This Court’s review

of the sentence imposed by the trial court is de novo with
a presumption of correctness. Tenn.Code Ann. § 40-35-401(d). This presumption is conditioned upon an affirmative sho w ing in t he record that t he trial judge considered the sentencing principles and all relevant facts and circumstances. State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). If the trial court fails to

comply with the statutory directives, there is no presumption of correctness and our review is de novo

. State v. Poole , 945 S.W.2d 93, 96 (T enn. 1997).12 We turn first to

the application of mitigatin g and enhancement fa ctor s. We agree with the state that the enhanc ement factor for abuse of a private tr ust was applicable in this case, and that the trial court err ed in refusing to apply it. Defendant was H.K.'s ste pfather.Contra ry to d efendant's argum ent, abu se of a privatetrust is not an essential element of the crime of incest. See State v. Robert L. Miller , C.C.A. No. 03C01-9502-CR -00037, Blount

County (Tenn. Crim. App. fil ed September 25, 1997, at Knoxvi lle). We further agree with the state that the defendant committed these acts to gratify his desire for pleasure and excitement. See Tenn. Code Ann. § 40-35- 114(7). Again, this is n ot an essential element of incest. See State v. Billy Joe Pruitt , C.C.A. No. 01C01-9304-CR-00123, Wilson Co un ty (Tenn. Crim. App. filed March 31, 1994, at Nashville) . Accordingly, ev en if defendant is correct that the trial court should have applied tw o mitigating factor

s, w e find that the number and severity of the applicable enhancement factors is sufficientto support the maximum sentence within the range. This issue is without merit. Because we have reverse d defendant's conviction under Count One ofthe indictment, he is entitled t o a new trial on that char ge and, if convicted, a new sentencing hearing. The issue of conse cutive sentenc es is, the refore, moot and we decline to address it.

CONCLUSION

For the reasons s et forth above, defendant's convi ction of incest under CountOne of the indictment is reversed , and that charge is remanded for a new trial. In all other r

espects, the judgment below is affirmed.13 ____________________________ JOE G. RILEY, JUDGE

CONCUR:

______________________________ DAVID H. WELL ES, JUDGE

______________________________ JOHN EVERETT WILLIA MS, JUDGE