FILED

May 26, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

OCTOBER SESSION, 1997

STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9704-CC-00160

)

Appellee, )

)

) SEVIER COUNTY

VS. )

) HON. BEN W. HOOPER, II

KEITH E. HODGE, ) JUDGE

)

Appellant. ) (Direct Appeal - Aggravated Rape and

) Aggravated Sexual Battery)

FOR THE APPELLANT: FOR THE APPELLEE:

CHARLES I. POOLE JOHN KNOX WALKUP

133 Commerce Street Attorney General and Reporter

Sevierville, TN 37862

MARVIN E. CLEMENTS, JR.

Assistant Attorney General

425 Fifth Avenue North

Nashville, TN 37243

AL SCHMUTZER, JR.

District Attorney General

STEVEN R. HAWKINS

Sevier County Courthouse

Sevierville, TN 37862

OPINION FILED ________________________

REVERSED AND REMANDED

JERRY L. SMITH, JUDGE
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OPINION

On August 20, 1996 a Sevier County jury convicted Appellant, Keith

Hodge, of nine counts of aggravated rape and two counts of aggravated sexual

battery. After a sentencing hearing, the trial court sentenced Appellant to twenty

years imprisonment for each aggravated rape conviction and ten years

imprisonment for each aggravated sexual battery conviction. Three of the twenty

year sentences were to be served consecutively, all other sentences were to be

served concurrently, for an aggregate sentence of sixty years to be served as a

Range I standard offender. After the trial court denied Appellant’s motion for a

new trial, Appellant filed this appeal, challenging the judgment of the trial court.

In this appeal, Appellant presents several issues for review, specifically:

1) whether the trial court erred in failing to advise the jury that the State

had made an election of which allegation of sexual abuse it would rely

upon in its proof for each of the several charges set out in the indictment;

2) whether the trial court committed reversible error by failing to advise the

jury that they must reach a unanimous verdict as to one particular incident

for each of the counts set forth in the indictm ent;

3) whether the trial court erred in permitting the introduction of evidence

of uncharged illegal sexual contact prior to the time period alleged in the

indictment between Appellant and the victim in this case, Tina Helton

Mullinex;

4) whether the State’s closing argum ent which contained the “missing

witness argument,” references to uncharged criminal conduct, and the

prosecutor’s personal beliefs and opinions constituted reversible error;

5) whether the trial court erred in permitting the introduction of the victim’s

prior consistent statements; and,

6) whether the trial court erred at the sentencing hearing in permitting the

testimony of three women who testified Appellant had abused each of

them.

After a careful review of the record, we must reverse the judgment of the

trial court and remand this case for a new trial.
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FACTS

Appellant and the victim, Tina Helton Mullinex, had a lengthy history before

the prosecution of this case. Appellant was married to Ms. Mullinex’s aunt, and

had three children with her: Linda, Michael, and Teresa. Teresa and Tina were

very close friends, a relationship that was shaped in part by the fact Teresa was

disabled. Teresa was born with a condition which caused her bones to be very

brittle and to break easily. Because of this condition, she was confined to a

wheelchair and needed constant care. Ms. Mullinex spent every summer from the

time she was five years old until she was twelve with Appellant’s family, visiting

her cousin Teresa. 

According to the State’s theory, Appellant began abusing Ms. Mullinex

when she was five or six years old, touching her breasts and kissing her. Ms.

Mullinex related that in 1982 or 1983 when she was 5 or 6, Appellant forced her

to watch a pornographic movie entitled “Dr. Storm” with him, during which he

forced her to touch him and he touched her. Ms. Mullinex testified that Appellant

abused her almost every day when she was in his home. She recalled specific

instances (though she was unable to provide dates) when he abused her during

the summers of 1984, 1986, 1988, 1989 and during the Thanksgiving holiday of

1987.

One night in the summer of 1984, Ms. Mullinex was sleeping on a pallet on

the floor of Teresa’s room, when Appellant came into the room and laid down on

the pallet behind her. Appellant began kissing her; he pulled her clothing down

half-way and inserted his finger into her vagina. Ms. Mullinex testified that she

remembered that on this night, Teresa woke up and asked her father what he
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was doing and that Appellant replied that he was checking the air in Teresa’s

wheelchair tires. Teresa testified that she did not recall such an incident.

Ms. Mullinex testified that during the summer of 1985, Appellant would

make her meet him in the garage after everyone else in the house was asleep.

He would pull his pants half-way down and make her stimulate his penis, he

would then make her perform fellatio, instructing her to “lick back and forth on it.”

When he ejaculated, he would either put his semen on his stomach and make her

wipe it off or put it on her stomach and he would wipe it off.

She also related that in the summ er of 1986, Appellant told her to come

into his bedroom. When she met him there, he took off her clothes and started

kissing her. They both performed oral sex on each other. In the summer of 1987,

the abuse continued as before, only Appellant attempted intercourse with Ms.

Mullinex. She told Appellant that it hurt, and he quit, though a little of his penis did

enter her vagina. During Thanksgiving of 1987, Ms. Mullinex’s family cam e to

Appellant’s house to celebrate the holiday. Ms. Mullinex slept on the floor on a

pallet between the living room and the den with her cousin Lee Ann. After

everyone was in bed, Appellant laid down beside her and put his finger in her

vagina. Ms. Mullinex pinched Lee Ann until Lee Ann woke up and saw what was

happening.

In the summer of 1988, Appellant had a mattress in the garage where he

would meet Ms. Mullinex. He penetrated her with his fingers and his penis, and

made her perform fellatio. W hile this was happening the rest of the family was in

the house, unaware of the events taking place in the garage. In the summer of
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1989, Appellant would meet Ms. Mullinex in the garage or the basement and

continue abusing her.

It was not until after the summer of 1989 that Ms. Mullinex informed an

adult about the abuse. Sometime in the fall of 1989, Ms. Mullinex told a counselor

at her school, a Ms. Clemens, about the abuse. No investigation was made

regarding the com plaint.

I. ELECTION OF OFFENSES

In his first allegation of error, Appellant argues that the trial court erred in

failing to inform the jury that the State had made an election as to which set of

facts it would use to support each count of the indictment. The trial court ruled

that the State, through its presentation of proof, had made an election as to

specific incidents of abuse upon which the jury would be asked to find Appellant

guilty of aggravated rape. We disagree. Because election involves Appellant’s

constitutional rights to protection against double jeopardy and to a unanimous

jury verdict, we will consider the issue of election under the doctrine of plain error

even though the issue was not presented on appeal. See State v. Leath, C.C.A.

No.01-C01-9511-CC-00393, Macon County (Tenn. Crim. App., Nashville,

February 10, 1998)(holding that error involving election is plain error).

The right to jury unanimity involves not only the requirement that the jury

be unanimous as to which offense constitutes the crime for which a defendant is

convicted, but also the right to unanimity among the jury members as to the

specific act which constituted the offense. State v. Brown, 823 S.W.2d 576, 582

(Tenn. Crim. App. 1991). A trial court has the duty of requiring the State to elect
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the particular act upon which it relies for conviction and to instruct the jury so that

the verdict of each juror will be united as to one offense. Burlison v. State, 501

S.W.2d 801, 804 (Tenn. 1973). When the State presents proof on many offenses

within an alleged time period, but neglects election, the jury is allowed to “reach

into the brimming bag of offenses and pull out one for each count.” Leath, C.C.A.

NO.01-C01-9511-CC-00393 at 11 (citingTidwell v. State, 922 S.W.2d 497 (Tenn.

1996)).

In the matter sub judice, in all but two of the counts, the State either drafted

the indictment to reflect a specific sexual act or presented proof regarding a

specific incident when the penetration was said to occur, thereby ensuring a

unanimous jury verdict. However in counts two and four of indictment 6401, which

alleged that Appellant “penetrated” Ms. Mullinex in the summers of 1985 and

1987, respectively, the State failed to elect, and presented proof only that multiple

incidences occurred during those summers. “A conviction that is not unanimous

as to the defendant’s specific illegal action is no more justifiable than a conviction

by a jury that is not unanimous on a specific count.” Leath, C.C.A. NO.01-C01-

9511-CC-00393 at 11 (citing State v. Brown, 823 S.W.2d 576, 583 (Tenn. Crim.

App. 1991) (quoting United States v. Beros, 833 F.2d 455, 462 (3d Cir. 1987))).

Therefore, we must reverse the judgment of the trial court as to these two counts.

Counts two and four of indictment 5531 both allege:

[T]hat [the defendant] in the summer of 1988 . . . did

unlawfully and feloniously sexually penetrate . . . [the

victim] a child less that thirteen (13) years of age, by

inserting his finger into her vagina . . ..”

However, at trial the State presented proof of only one incident of digital

penetration during the summer of 1988. Although the proof is sufficient to sustain
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a single count with respect to this incident count four of indictment 5531 must be

reversed and dismissed for insufficient evidence. See, Tenn. R. App. P. 36

II. JURY INSTRUCTIONS ON ELECTION.

As noted earlier, Appellant complains that the trial court did not adequately

instruct the jury as to the requirement of unanimity on a particular set of facts

alleged to constitute the criminal act. Where the State presents evidence of

numerous offenses, the trial court m ust augment the general jury unanimity

instruction to insure that the jury understands its duty to agree unanimously to a

particular set of facts. A skeletal jury instruction of unanimity ferments a strong

possibility of a composite jury verdict in violation of an appellant’s constitutional

rights. Id. at 12 (citing State v. Brown, 823 S.W.2d at 583; State v. Forbes, 918

S.W.2d 431, 447 (Tenn. Crim. App. 1995)).

In all but counts two and four of indictment 6401, the State through its

presentation of proof elected a specific type of penetration or incident so as to

ensure a unanimous jury verdict. Therefore, the need to augment the skeletal

unanimity instruction was not triggered. However, it was error to fail to instruct

the jury in accordance with Leath, Brown and Forbes on counts two and four of

indictment 6401. This error also warrants a new trial with respect to those

charges.

III. PRIOR UNCHARGED ILLEGAL CONDUCT

In his next assignm ent of error, Appellant argues that the trial court erred

in allowing the State to present testimony regarding incidents between Appellant

and Ms. Mullinex which were outside the time frame of the indictment. The

earliest date set forth in the presentment against Appellant is found in Count 1 of
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case no. 6401 which charges Appellant with the sexual penetration of Ms.

Mullinex Helton during “the summer of 1984.” However, the State’s first witness,

Tina Helton Mullinex, herself, began the trial recounting an incident which

occurred when she was “five or six”, in 1982 or 1983. She testified that Appellant

forced for to watch a pornographic movie entitled “Dr. Storm” and “touched” her

and forced her to “touch” him. The defense made an objection that the incident

she related was outside the scope of the indictment and in violation of the motion

to disclose uncharged criminal conduct and a motion in limine regarding

uncharged sexual conduct. The trial court nevertheless allowed the testimony into

evidence. The State also presented the testimony of Candy Lee Ann Buchanan,

who testified that Appellant showed her a pornographic video with the same

content as the video Ms. Mullinex testified she was shown at the age of five.

In State v. Rickman, the Supreme Court held that:

testimony of the victim about other prior unindicted sex

crimes allegedly committed by the defendant upon the

victim does not corroborate the testimony of the victim that

he or she suffered the attack for which the defendant is

then being tried. Moreover, the prejudice resulting from

such testimony outweighs its probative value.

876 S.W.2d 824, 830 (Tenn. 1994). It is obvious, therefore, that testimony

concerning the alleged sexual abuse of Ms. Mullinex committed before the

earliest date charged in the indictment was erroneously admitted into evidence.

The holding in Rickman does allow for a narrow exception which would

permit evidence of uncharged crimes allegedly committed within the time frame

of events described in an open dated indictment. Id. at 829. However, Ms.

Buchanan’s testimony regarding the pornographic video she was allegedly shown
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in no way related to the time frame alleged in the indictment and was likewise

improperly admitted into evidence.

The State does not dispute the fact that the admission into evidence of the

testimony described above was error, but the State maintains that the error was

harmless. See Tenn. R. App. P. 36(b); Tenn. R. Crim. P. 52(a). Because there

is substantial evidence of Appellant’s guilt in this record, this error, standing

alone, would not warrant a reversal of the convictions in this case. However, this

error coupled with the prosecutor’s improper comments compels us, for the

reasons discussed infra., to afford Appellant a new trial on the remaining counts

against him.

IV. PROSECUTION ARGUMENT

Appellant complains that the State improperly argued the “missing

witness” doctrine, referred to uncharged criminal activity outside the scope of the

indictment, and interjected personal beliefs and opinions. In State v. Philpott, this

Court set out factors to be considered in making the determ ination whether a

prosecutor's improper conduct could have affected the verdict to the prejudice of

the defendant. These factors are as follows:

1. the conduct complained of in light of the facts and circumstances of the

case;

2. the curative measures undertaken;

3. the intent of the prosecutor in making the improper remarks;
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4. the cumulative effect of the improper conduct and any other errors in the

record; and,

5. the relative strength or weakness of the case. 

State v. Philpott, 882 S.W.2d 394, 408 (Tenn. Crim. App. 1994)(citing Judge v.

State, 539 S.W .2d 340, 344 (Tenn. Crim. App. 1976)).We consider each

allegation in turn.

A. MISSING WITNESS

Appellant contends that the trial court improperly permitted the State to

argue the “missing witness argument” during closing argum ent. It is well

settled that, “As a predicate for comment on a missing witness, the evidence

must show that the witness had knowledge of material facts, that a

relationship exists between the witness and the party that would naturally

incline the witness to favor the party, and that the missing witness was

available to the process of the Court for the trial.” Delk v. State, 590 S.W.2d

435, 440 (Tenn. 1979).

 In the matter sub judice, the witness to whom the State made repeated

reference was Peggy Ihsan, who was Appellant’s wife during the years listed

on the indictments. During argument, when the State first made reference to

Ms. Ihsan, Appellant objected and the trial court gave the following instruction

to the jury:
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Ladies and gentlemen of the jury, these are

arguments that you are hearing and have heard. I will tell

you now, and will tell you again in a few minutes, this case

is decided solely on the evidence that comes from the

witness stand. You will notice that neither of these

attorneys have been sworn, and put on the witness stand.

What they are presenting to you is argument.

Don’t let me take away from you the fact that

argument is designed to be helpful to you. That’s the

reason we have it. Each side wants to present to you their

theory of the case. All I want you to remem ber is that

argument is not evidence, but it is certainly something that

you should consider in helping decide this case.

This instruction did not address the central problem with the State’s

argument. In fact, after the instruction the prosecutor continued to imply that

Appellant’s failure to call Ms. Ihsan was due to what her testimony would have

been. The prosecutor’s argument continued:

Ladies and gentlemen of the jury, I think you can see the

point with regard to that when Mr. Poole stands up and

calls witness after witness after witness that lived in that

house. All I’m asking is why didn’t he call the wife that

shared the bedroom with this defendant. I don’t know what

she would say, but why didn’t he call her, the one who

shared the bedroom with this defendant?

Because no proof had been presented that Ms. Ihsan fell into the category of a

missing witness, the State’s argument clearly constituted error.

Concluding that the remarks were in error, we must move to the issue of

harm to Appellant. Considering the Philpott factors one at a time, we begin by

considering the conduct complained of in light of the facts and circumstances

of the case. The prosecutor’s argument regarding the absence of Ms. Ihsan

was significant in light of the facts presented at trial. Ms. Mullinex testified that

much of Appellant’s illegal conduct occurred at night when the rest of the
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household assumed he was asleep in bed with his wife. The defense called

various household members to rebut this notion. The implication that Ms.

Ihsan was not called because she would have given testimony adverse to

Appellant was clear. 

Further, the curative measures undertaken by the trial court were

cursory at best and did not stop the State’s reference to the failure of the

defense to call Ms. Ihsan. The court’s instruction to the jury did nothing to

correct the improper argument, but rather highlighted for the jury that such

remarks could be considered in its deliberation.

The prosecutor in this matter clearly knew that his argument was

improper. He realized that no foundation for such an argument had been

made. Surely, in investigating the case during the preparation for trial, the

prosecutor learned that Ms. Ihsan lived beyond the jurisdiction of the court.

Even if the State did not have actual knowledge of that fact, the district

attorney certainly was aware that he was required to put forth a showing of the

witness’ availability to the defense before such an argument could properly be

made. Further, the State waited until its final closing, an argument to which the

defense would not have the opportunity to answer, to spring this “missing

witness argument.” Such timing creates at least the appearance of an

intentional interjection of improper argum ent into the trial.

The cumulative effect of this error must be regarded in conjunction with

the other error discussed below in the analysis of Appellant’s issues
1

 Ms. Mullinex actually testified that Appellant showed her the pornographic movie when she was

“five or six” which would have been in 1982 or 1983.

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concerning the argument of uncharged criminal conduct and the interjection of

the prosecutor’s personal beliefs and opinions.

B. UNCHARGED CRIMINAL CONDUCT

Appellant also complains that in closing argument the State made

repeated references to prior uncharged conduct outside the scope of the

indictment. Appellant failed to object at trial to the argument regarding the prior

uncharged conduct. Therefore, this issue ordinarily would be waived. Tenn.

R. App. P. 36(a). However, in light of our concern that improper argument

prevented Appellant from receiving a fair trial, we address this issue on the 

merits. See Tenn. R. Crim. P. 52(b). Appellant specifically contends that the

State erred in arguing that:

Tina told you with regard to this indictment that in the

summer of ‘89 that he showed her a movie, a video.1 She

said the name of it was Doctor Storm, and she said it

showed sexual activity, and the one thing that stuck out in

her mind, that little girl’s mind, is she said she

remembered a girl being nude, and on all fours on knees

and her hands, and man entering her from behind, and

there were some pearls -- I believe she said pearls -- that

the guy had in this girl’s mouth. That stuck out in her mind,

and she remembered that, and said Uncle Keith played

that for her.

As discussed earlier, Appellant objected early in the trial to the

introduction of evidence relating to events outside the time span of the

indictment. The trial court allowed the evidence mentioned in closing argument

into evidence over Appellant’s objection. Because we held that the admission

of this evidence was erroneous, we also hold that it was error to allow
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argument regarding this evidence. We must therefore consider the Philpott

factors in deciding whether this error affected the result of the trial.

Although this argument by the prosecuting attorney, when taken in the

context of the State’s closing argument as a whole, appears to be an attempt

to recount the evidence presented at trial, the cumulative effect of this error

when viewed in light of the improper “missing witness argument” seems fairly

serious. Not only was inadmissible evidence presented to the jury, the

prosecution compounded that error by presenting argument based on that

evidence. The combination of these two improper arguments may have served

to divert the jury’s attention from admissible reliable evidence to inadmissible

evidence and speculation.

No curative measures were undertaken by the trial court. This was

perhaps the result of the defense’s failure to object. However, in light of the

trial court’s erroneous admission of evidence regarding the video tape

incident, any objection by the defense probably would have been overruled. 

The trial court did not instruct the jury that it should not consider this improper

argument, leaving the impression that this argument was a valid consideration

for the verdict.

C. PROSECUTOR’S PERSONAL BELIEFS AND OPINIONS

Appellant also alleges that the State improperly interjected the District

Attorney’s personal opinions and feelings into the closing argument. Appellant
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objected twice to the State’s comments and his objections were sustained.

The question presented is whether the argument so tainted the trial that the

verdict cannot be relied upon. It is impossible to say beyond a reasonable

doubt that it did not.

The portions of the prosecutor’s argument to which Appellant objects

came at the end of the State’s initial closing argument: “I don’t know how

many folks were in the house when it happened. I don’t know if everytime little

Teresa was in the bedroom, but I know where Keith Hodge was. Tina told me

where he was when she was abused.” And again in the State’s final closing

argument:

I guarantee the City of Gatlinburg gives vacation days... I

believe my daddy hung the moon, We’ve had our

problems, but I love my daddy, and I would never believe

something like that about my daddy. But you know, the

last to know is your family, especially when you’re talking

about child sexual abuse. There’s preachers been guilty of

this, there’s boy scout leaders that have been guilty of

this....W ell, I’ll tell you what’s not rational is child abuse.

You know, that doesn’t make sense, but I know it

happens....She said, “Tina went into the restroom with

some boys and come out and said, ‘I gave him a blow

job.’” A twelve year old girl. I think it reflected more on her

than it did little Tina for telling a story like that she took her

to a party like that, her two or three or four years older.” 

Following Appellant’s objections, the trial court admonished the jury

saying:

These are arguments that you are hearing and have

heard. I will tell you now, and will tell you again in a few

minutes, this case is decided solely on the evidence that

comes from the witness’ stand. You will notice that neither

of these attorneys have been sworn, and put on the

witness stand. What they are presenting to you is

argum ent....All I want you to remember is that argum ent is
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not evidence, but it is certainly something that you should

consider in helping decide this case.

The law is clear on this point:

(T)he prosecutor is an advocate, and is entitled to

pursue his role with thoroughness and vigor. But, as

set out in Justice Southerland’s classic opinion in

Berger v. United States, 295 U.S. 78, 88, 55 S.Ct.

629, 633, 79 L.Ed. 1314 (1935), the prosecutor also

acts [as]:

...the representative not of

an ordinary party to a

controversy, but of a

sovereignty whose

obligation to govern

impartially is as compelling

as its obligation to govern at

all; and whose interest,

therefore, in a criminal

prosecution is not that it

shall win a case, but that

justice shall be done. As

such, he is in a peculiar and

very definite sense the

servant of the law, the two

fold aim of which is that guilt

shall not escape or

innocence suffer. He may

prosecute with earnestness

and vigor, indeed he should

do so. But, while he may

strike hard blows, he is not

at liberty to strike foul ones. 

It is as much his duty to

refrain from improper

methods calculated to

produce a wrongful

conviction as it is to use

every legitimate means to

bring about a just one. It is

fair to say that the average

jury, in a greater or lesser

degree, has confidence that

these obligations, which so

plainly rest upon the

prosecuting attorney, will be

faithfully observed. 
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Consequently, improper

suggestions, insinuations,

and especially assertions of

personal knowledge are apt

to carry much weight

against the accused when

they should properly carry

none.

Judge v. State, 539 S.W.2d 340, 344-45 (Tenn. Crim. App. 1976).

The conduct of the prosecuting attorney went beyond the bounds of

proper argument. In light of the trust with which the jury views the attorneys

for the State, we cannot find that the impermissible comments did not

influence the jury’s verdict.

In light of the cumulative effect of all the improper remarks made by the

prosecutor during closing argument, we cannot say that these errors did not

impermissibly infect Appellant’s trial with unfair prejudice. Therefore we find

Appellant must be afforded a new trial as to all charges against him.

V. INTRODUCTION OF PRIOR CONSISTENT STATEMENTS

Appellant complains that the trial court erred in admitting the testimony

of two school officials to whom Ms. Mullinex reported the abuse by Appellant.

It is true that ordinarily prior consistent statement of a witness are not

admissible to bolster the witness’ credibility. State v. Braggs, 604 S.W.2d 883,

885 (Tenn. Crim. App. 1980). However, “prior consistent statements may be

admissible...to rehabilitate a witness when insinuations of recent fabrication

have been made, or when deliberate falsehood has been implied. State v.
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Benton, 759 S.W.2d 427, 433 (Tenn. Crim. App. 1988). Before prior consistent

statements may be admissible, the witness’ testimony must have been

assailed or attacked to the extent that the witness’ testimony needs

rehabilitating. Benton, 759 S.W.2d at 434. In the matter sub judice, during

cross-examination, the defense repeatedly asked Ms. Mullinex whether she

ever told anyone of the abuse and whether she told all the details she related

at trial to the people she told earlier. The testimony of Mr. Townsend and Ms.

Hughes was properly admitted to show that Tina Helton Mullinex did tell about

the abuse. This issue is without merit.

VI. EVIDENCE AT SENTENCING HEARING

Finally, Appellant contends that the trial court erred in receiving

testimony at the sentencing hearing regarding Appellant’s molestation of three

women other than Tina Helton Mullinex. Tennessee Code Annotated §

39-13-204 permits, at a sentencing hearing, evidence "as to any matter that

the court deems relevant to the punishment," including (but not limited to) "the

nature and circum stances of the crime." State v. Nichols, 877 S.W.2d 722,

731 (Tenn. 1994). Evidence is relative to the punishment, and thus admissible

at the sentencing hearing, only if it is relevant to an aggravating circumstance,

or to a mitigating factor raised by the defendant. State v. Bates, 804 S.W.2d

868 (Tenn. 1991)(citing State v. Cozzolino, 584 S.W.2d 765, 768 (Tenn.

1979)). The testimony of these witnesses was properly admitted to show that

Appellant had a history of criminal behavior in addition to that necessary to

establish the appropriate range. Tenn. Code Ann. § 40-35-114(1). This issue

is without merit.
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Therefore, the judgment of the trial court is reversed and remanded for

a new trial on all counts except count four of indictment 5531 which is

dismissed for the reasons stated hereinabove.

____________________________________

JERRY L. SMITH, JUDGE

CONCUR:

___________________________________

GARY R. WADE, PRESIDING JUDGE

___________________________________

DAVID H. WELLES, JUDGE
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