# FILED May 26, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE OCTOBER SESSION, 1997 STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9704- CC-00160 ) Appellee, ) ) ) SEVIER COUNTY VS. ) ) HON . BEN W. HO OPE R, II KEITH E. HODGE, ) JUDGE ) Appe llant. ) (Direct Appeal -

Aggravated Rape and ) Aggr avate d Se xua l Bat tery)

FOR THE APPELLANT : FOR THE APPELLEE : CHARLES I. POOLE JOHN KNOX WALKUP 133 Commerce Street Attorney Generaland Reporter Seviervi lle, TN 37862 MARVIN E. CLEMENTS, JR. Assistant Attorney General 425 Fifth Avenu e North Nashvill e, TN 37243 AL SCHMUTZER, JR. Distri ct Attor ney General STEVEN R. HAWKINS Sevier County Courthouse Seviervi lle, TN 37862
OPINION FILED ________________________ REVERSED AND REMANDED JERRY L . SMI TH, J UDGE-2- 

## OPINION
On Augus t 20, 1996 a Sevier C ounty jury c onvicted Appella nt, Keith Hodge, of nine co unts of aggravated rape and two counts of aggravated sex ual battery. After a sentencing heari ng, the trial court sen tenced Appella nt to twenty years imprisonment for each aggravated rape conviction and ten years imprisonmentfor each aggrav ated sexual battery convicti on. Three of the twenty yearsenten ces we re to be served consecut ively , all other sentences were to be served concurrently, f or an aggregate sentence of sixty years to be served as a Range I stand ard offe nder. A fter the tr ial court denied Ap pellant’s motion for a new trial , Appellant

filedthis appeal , chall enging the j udgment of the trial cou rt. In this appeal, Ap pellant presen ts several issues for re view, specifically:
1) wheth er the tr ial cou rt erred in failin g to ad vise the jury th at the Sta te had mad e an e lection of whic h alleg atio n of sexua l abus e it wou ld rely upon in its proof for

each of the several charges set out in the ind ictmen t; 2) whether the t rial court committed reversibl e error by fail ing to advise the jury that they must reach a unanimous verdict as to one particul ar incide nt for each of the cou nts set forth in the indictm ent; 3) whether t he trialcourt err ed in permit

ting the introduct ion ofevidence of uncharged il legal sexualcontact pr ior to t he time peri od alleged i n t h e indict ment between Appe lla nt and the vi ctim in t his case, Ti na Helton Mullinex; 4) whet her the State’s closing argum ent wh ich con tained the “m issin g witness argumen t,” r eferences to uncharged crimi nal conduct, and the prosecutor’s p ersonal beliefs an d opinions co nstituted reversible error; 5) whether the t rial cour t erred i n permitti ng the intr oduction of

the victim’s prior consi stent statements; and, 6) whether thetrialcourt err ed at the sentencing heari ng in permit ting the t estimony of three women who testifi ed Appellant ha d abused each of the m. After a car

eful review of

the record, we must reverse t he judgment of t he trial cou rt and re man d this ca se for a new tria l.-3- FACTS Appellant

and the vic

tim, TinaHelton Mullinex, had a len gthy history before the prosecuti on of this case. Appell ant was married to Ms. Mullinex’s aunt, and had three children with her: Linda, Michael , and Teresa. T eresa and Tina were very close frien ds, a relationship that was shaped in p art by the fact Teresa was disabled. Tere sa wa s born wit h a condition which caused h er bones to b e very b rittle and to break easi ly. Because of this condi tion, sh e was confined to a whee lchair and needed constant care. Ms. Mull inex spent ev ery summer from the ti me she was five years old unt il shewas twelve wi th Appellant’s famil y, vis iting her cou sin Tere sa.
According to the State’s theory , Appel lant be gan abusing Ms. Mull inex when she was five or six y ears o ld, 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 pornographi c movie enti tled “Dr. Storm” with h im, during which he forced her to to uch h im and he touched her. Ms. Mul linex testifi ed that Appell ant abused her almost ever y daywhen she was in his ho me. S he rec alled s pecific instances(though she wa s unab le to provide dates) when he abused her duri ng the summ ers of 1984, 1986, 1988, 1989 and during t he Thanksgiving hol iday of 1987.

One night i n the summer of 1984, Ms. Mullinex was sleeping on a pallet on the fl oor of T ere sa’ s ro om, w hen A ppel lan t ca me into the room and laid down on the pallet be h ind her. Appella nt began ki ssing her ; he pul led her clothi ng down half-way and insert ed his fi nger into her vagina. Ms. Mullinex testif ied that s he remembered that on thi s night, Teresa woke up a nd asked her father what he-4-

was doing and that

Appellant r

eplied t hat he was che cking the air in Tere sa’s wheelc hair tires. T eresa te stified that sh e did not re call such an incide nt.

Ms. Mulline x testified that du ring the sum mer o f 1985 , Appe llant wo uld make her mee t him in the garage after everyone el se in the house was asleep. He would pul l his pants hal f-way d own and m ake her sti mulate his peni s, he would then make her perform fellat io, instructi ng herto “lick back and forth on it.” When he ejaculated, he would eit her put his semen on his stomach and make her wipe it off or p ut it on her s tomac h and h e would wipe it off.

She also relate d that in the summ er of 198 6, Appe llant told her to co me i nto his bedroom. When she met him there, he took off her c lothes and started kissing her. Theyboth performed oral sex on each other. In the summer of 1987, the abuse co ntinued as be fore , o nly Appellant attempted intercourse with Ms. Mullinex. She told App ellant that it hu rt, and he quit, thoug h a little o f his pe nis did enterher vagin a. During Than ksgiving o f 1987, M s. Mullinex’s family cam e to Appellant ’s house to celebr ate the hol iday. Ms. Mullinex slept on t he floor on a pa llet between the l iving r oom and the den with her cousin Lee Ann . Afte r everyone was in bed, Appel lant lai d down be side h er and put hi s finger i n her vagina. Ms. Mulli nex pinched Lee Ann until Lee Ann woke up and saw what was happening.

In the summer of 1988, Appellant had a mattress i n the garage where he would meet Ms. M ullinex. H e pen etrated her with his fingers an d his penis, and made her pe rform fellatio. W hile this was happening the res t of the fa mily wa s in the hous e, una ware of the events taki ng place in t he garage. In t he summer of-5-

1989, Appel lant would meet Ms. Mull inex in t he garage or the bas ement and continue ab using her.

It was not until after the su mme r of 1989 th at Ms. Mull inex inf ormed an adult about the abuse. Sometime in the fall of 1989, Ms. Mullinex

told a counsel or at her scho ol, a Ms. C lemen s, abou t the abus e. No inve sti gat ion was made regardin g the com plaint.

I. ELECTI ON OF OFFENSES In his fi rst all egation of error, Appel lant argues thatthe trial c ourt er red in faili ng to inform the jury t hat the State had made an electio n as to whi ch set of facts it would use to support each count of t he indict ment. The tri al court ruled thatthe Sta te, throu gh it s prese ntati on of pro of, had m ade an election a s to spec ific incidents of abuse upon w hich the ju ry would b e aske d to find Appellant guilty of aggravated r ape. W e disa gree. B ecau se ele ction in volves Appe llant’s constit ut ional rig hts to protection agai nst double j eopardy and to a unani mous jury verdict, we will consider t he issue of el ection under the doctri ne of plai n error even though the i ssue was not presented on appea l. See State v. Leath , C.C. A. No.01-C01-9511-CC-00393, Macon C ounty (Ten n. Cri m. App., Nashvil le, February 10 , 1998)(holding that error involving election is plain e rror).

The right to jury unani mity inv olves not only the requi rement that the jury be unanim ous as to whi ch o ff ensecon stitutes t he c ri me for whic h a de fenda nt is convicted, but

als o th e ri ght

to u nani mit

y amo ng the jury

members as to the spec ific act which const ituted the offens e. State v . Brown , 823 S.W.2d 576, 582 (Tenn. Cri m. App. 1991). A t rial cour t has the duty of requiri ng the State to elect-6-

the particul ar act upon whi ch it rel ies for convicti on and to inst ruct the j ury so that th e verdict of ea ch juror w ill be united a s to one o ffense. Burlison v. State , 50 1 S.W.2d 801, 804 (Tenn. 1973). When the State presents proof on many offenses within an alleged t ime period, but neglects electi on, the jury is allowed to “reach into the brimming bag of of fenses and pu ll out one fo r each co unt.” Leath , C.C. A. NO.01-C01-9511-CC-00393 at 11 ( citing Tidwell v . Stat e , 922 S.W

. 2d 497 (Tenn. 1996)).

In the matter sub judice , in al l but two of the counts, the State ei ther draf ted the indict ment to refl ect a specif ic sexual act or presen ted proo f regar ding a spec ific incident when the penetrati on was sa id to occur, t hereby ensuri ng a unanimous jury verdi ct. However in counts two and four of indictment 6401, which alleged that Appell ant “penetr ated” Ms. Mull inex in t he summers of 1985 and 1987, respectively, the Sta te failed to elec t, and p resen ted pro of only that m ultiple incidencesoccurred during those summers. “A convict ion that i s not unanimous
as to the defe ndant’s speci fic i llegal action is no more justi fiable t han a convict ion 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 (Ten n. C ri m. App. 1991) ( quoting United States v. Beros , 833 F.2d 455, 462 (3d C ir. 1987))). Therefore, we must re verse the judgm ent of the tria l court as to these two counts. Counts two and four

of indi ctment 5531 both al lege: [T]hat[the defendant ] in the s umm er of 19 88 . . . did unlaw fully an d f eloniousl y sexuall y penetrate . . . [ the vi cti m] a child l ess thatth irteen ( 13) years of age, by inserting h is finger into h er vagina . . ..” Howe ver, at t rial t he State presented proof of only one inci dent of di gital penetrati on during the s ummer of 1988. Although the proof is sufficie nt to su stain-7-

a single co unt with respect to this i ncident count

four of indict ment 5531 must be reversed and di smissed for i nsuffic ient evi dence. See, Tenn. R. App. P. 36

II.JURY INST RUCTIONS ON EL ECTION. As noted earlier, App ellant compla ins that the trial court did no t adeq uately instruct the jury as to the requirement of un an imity on a particula r set of facts
a lleg ed to consti tute the c riminal ac t. Where the State presents evi dence of
numerous offenses , the trial court m ust aug ment th e gene ral jury una nimity instruct ion to insure th at the jury un derstan ds its duty to agr ee unanimously to a particul ar set of facts. A skeletaljury i nstructi on of unanimit y ferments a st rong possibility of a com posite jury verd ict in violat ion of an appel lant’s constit utional 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 a nd four of indictm ent 6401, the S tate thro ugh its presentati on of proo f elected a specific type of pene tration or inc ident so a s to
ensure a unanimou s jury ver dict. Therefore, t he need to augment the sk eletal unanim ity instruc tion wa s not trig gere d. However, it was error to fail t o instruct the jury in accordance with Leath , Brown and Forbes on counts two and four of indic tme nt 6401. This error also warrants a new trial wit h respect to those charges. III . PRI OR UNCHARGED I LLEGAL CONDUCT In his next assignm ent of error, Appellant ar gues that t he trialcourt err ed in allowin g the State to present testimonyregarding i ncidents bet ween Appellant and Ms. Mul li nex

whi ch we re o uts idetheti me fr ame o f t he i ndi ctme nt. The earliest date set fo rth in the p resen tmen t again st App ellant is found in Count 1 of-8-

case no. 64 01 wh ich cha rges A ppella nt wit h the s exual penetration of Ms. Mullinex Helton during “the summer of 1984.” However, the State’s first witness, Tina Helton Mull inex, her self, began the trial r ecounting an incident which occurred when she was “fi ve orsix”, in 1982 or 1983. She testif ied that Appellant forced forto watc h a po rnogr aphic movie entit led “Dr. Storm” and “touched” her and forced her t

o “touch” hi m. The defense made an objecti on that the i ncident she related was outside t he scope of theindict ment and in vi olation of the moti on to disclos e unc harge d crim inal c ondu ct and a motion i n limine regarding uncharged sexual conduct. The trialcourt nevertheless allowed the testimony in to evidence. The State also pr esented the testi mony of Candy Lee Ann Buchanan, who testified that Appe llant showed he r a p orn ographi c vi deo w it h th e sa me content as t he video Ms. Mul linex testifi ed she was shown at the age of fiv e.

In State v. Rickman , the Sup reme C ourt held that: testimony

of the victim abou t other p rior unindicted sex crimes allege dly committed by thedefendant upon t he victim does not corrob orate th e testim ony of th e victim that he or she suffere d t he atta ck for w hich th e defe ndan t is then being tried . Moreo ver, t he prejudice resulti ng from such testi mony outweighs i ts probative value.
8 76 S.W.2d 824, 830 (Tenn. 1994). It is obvious, t herefore, thattestimon y c once rnin g the all eged sexual abuse of Ms. Mulli nex committed before the earliest date charged in t he indict ment was erroneousl y admitted into evi dence.

The holding i n Rickman does allow for a n arro w exce ption w hich w ould perm it evidence of

unch arged crime s alleg edly commi tt ed wi thi n th e ti me fr ame of events d escribed in an ope n dated indictme nt. Id. at 829. However, Ms. Buchanan ’s testimony regarding the pornogra phic vi deo she was al legedl y shown-9-

in no way related to the time frame alleged in the i ndictment and was likewise improperly

admitted i nto evidence.

The State does not dispute t he fact th at the admission i nto evidence of the testimony

described above was error , but the State maintai ns thatthe error was harmless. See Tenn. R. App. P. 36(b); Tenn . R. Crim. P. 52 (a). Because there is subs tantial e videnc e of Ap pellan t’s guilt in this record, thi s error, standing alone, would not warr ant a reversalof the convic tions in this cas e. How ever, th is
error coupled wit h the p rosecutor ’s improper comments compels us, for the
reasons discussed infra ., to af ford Appell ant a new trialon the remain ing coun ts agai nst him
.

IV. PROSECUTION A RGUMENT Appellant

complains that

the State i mproperly argu ed t h e “missing witness” doctrine, referred to uncharged cr iminal act ivit y outside t he scope of the indictme nt, and interj ected personal beliefs and opinions. In State v. P hilpott , this Court set ou t factors to be c onsid ered in mak ing the determ in ation w hether a prose cutor's improper conduct could have affected the verdi ct to the prejudice of the defendant. These factors are as follows:
1. the condu ct com plained o f in light of the fac ts and circumstances of the case; 2. the curat ive measures undert aken; 3. the intent of

the prosecutor in making the i mproper remarks;-10- 4. the cumulati ve effect of the improper conduct and any other er rors in t he record; and, 5. the relative strength or weak ness o f 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 co nsider e ac h allegati on in turn.

A. MISSI NG WITNESS Appe llant conte nds tha t the trial court im properly p ermitted the State to argue the “m issing witnes s argu men t” during closing argum ent. It is w ell settled that, “As a predicate for comment on a missing witness, t he evidence must s how tha t the witnes s had kn owledg e of ma terial facts, tha t a relation ship e xists be tween the witn ess a nd the party th at wou ld natu rally incli ne the witnes s to favor the party , and that t he missing wit ness was available to the proc ess of the Co urt for the trial.” Delk v. S tate , 590 S.W.2d 435, 440 (T enn. 1979 ).

In the matter sub judice , the wit ness to whom the State made repeated reference was Peggy Ihsan, who was Appel lant’s wife duri ng the years l isted on the ind ictmen ts. During argum ent, whe n the Sta te first mad e referen ce to Ms. Ihsan, Appel lant obj ected and the t rial cour t gave the f

ollowing instruct ion to the jury:-11- Ladies and gentleme n of the jury, these are argum ents that you ar e hearing and have h eard. I w ill tell you now, and will tell you again in a few minutes, this case is decided solely o n the evidencethat comes fr om the witness stand. Yo u will notice th at neither of these attorneys have been sworn, and put on the witness stand. What they are presenti ng to you is argument.
Don ’t let me take away from you the fact that argument is desig ned to be he lp ful to you. That ’s the reason we have it. Each side w ants to prese nt to you their t heory of the case. All I wan t you to remem ber is tha t argument is not evi dence, butit is certainly something that you should consi der in help ing decide t his case. This in structio n did n ot add ress th e cen tral prob lem w ith the S tate’s argument. In f

act, after the inst ruction t he prosecutor continued to imply that Appellant’s failure to ca ll Ms. Ihsan was d ue to what he r testimony wo uld have been. The prosecutor’s argument cont inued: Ladies and gentl emen of the jury, I think you can see the p oint wi th regard to that when Mr. Poole stands up and calls witness after wi tness a fter witness t hat liv

ed in that house. All I’m a sking is why d idn’t he call t he wife t hat shared the bedro om w ith this defendant. I don’t know what she would s ay, but why didn’ t he callher, the one who shared the bed room w ith this defen dant? Becau se no p roof had been p resente d that Ms . Ihsan fell into the categ ory of a missing witne ss, the State’s argu ment clearly co nstituted error.
Concluding that

the remarks were i n error, we must move to the i ssue of harm to Appellant . Consideri ng the Philpott factors on e at a ti me, we begin by consideri ng the conduct compl ained of i n light of the fac ts and cir

cumstances of the case. The prosecutor’ s argument regardi ng the absence of Ms. Ihsan was signif icant i n light of the fac ts presented at tri al. Ms. Mul linex testifi ed that much of Appellant ’s il legal conduct occurred at n ight when the rest of t he-12-

household assumed he was asleepin bed wit h his wife. The defense cal led various household members to rebut this noti on. The implication that Ms. Ihsan w as not ca lled beca use sh e would have give n testimo ny adver se to Appe llant was c lear.
Further, the cura tive measure s undertake n by the trial court were cursory at

best and did not

stop the State’s refer ence to the failure of

the defens e to call Ms . Ihsan. T he cou rt’s instruction to the jury did nothing to correct the improper argument, but r ather highlighted for the jury t hat such remarks could be cons idered in its deli beration.
The prosecutor i n this matter clearl y knew that hi s argument was improper. He real ized that no foundati on for such an ar gument had been made. Surely, in invest igating the case duri ng the preparat ion for t rial, the prosec utor learn ed that M s. Ihsan live d beyon d the jurisd iction of the c ourt. Even if the State di d not have actual knowledge of that fact, the di strict attorney certainly was aware that he was required to put for th a showing of

the witness’ availabi lity

to the defe nse before such an ar gument could proper ly be made. Further, the State wai ted untilits f inal cl osing, an argument to which t he defense would not

have the opport unity to answer, to s pring thi s “missing witness argument .” Such ti ming creates at least t he appearance of an intentio nal inte rjection of imp roper argum ent into the trial.

The c umula tive effect of this error mu st be reg arded in conjunc tion with the other er ror discus sed below in t he analysis of Appellant’s issues1 Ms. Mulli nex actually testi fied that Appellant

showed her the pornographic movie when she was “five or six” whichwould have been i n 1982 or 1983. -13- concerning t he argument of uncharged criminalconduct and the i nterject ion of the prosecutor’s personal bel iefs and opinions.

B. UNCHAR GED CRIMINA L CONDUCT Appellant al so complains that in closi ng argument the State made repeated references to pri or uncharged conduct outside t he scope of the indict ment. Appellant

failed to object

at tri al to the argument regardi ng the prior uncha rged co nduct. Therefore, t his issue or dinarily would be waived. Tenn. R. App. P. 36(a) . However, i n light of our concern that improper argument prevented Appel lant fr om receiving a fair t rial, we address thi s issue on the

merits. See Tenn. R. Crim. P. 52(b). Appel lant speci fically contends that the State erre d in argu ing that:
Tina told you w ith regard to this indictm ent t hat in the summer of ‘89 t hat he showed her a movi e, a video. 1 She said the nam e of i t was Doct or Sto rm, an d she said it showed sexua l activity, an d the o ne thin g that s tuck o ut in her mind, t hat li ttle gi rl’s mi nd, is she sai d she remembered a girl bei ng nude, and on all fours on knees and h er hands, and man enteri ng her from behind, and there were some pearls -- I believ e she said pearl s -- that the guy ha d in this girl’s mouth. That stuck out in her

mind, and she remem ber ed that, and said Uncle Keit h played that for her. As discussed earl ier, Appel lant obj ected early in the t rial to the introduct ion of evi dence relati ng to events out side the t ime span of the indict ment. The tri al court al lowed the evi dence mentioned in c losing argument into evi dence over Appell ant’s obj ection. Because we held that the admission of this evidence was err oneous, we also hol d that it was error to allow-14-

argument regardi ng this evi dence. We must therefore co nsider the Philpott factors in dec iding w hethe r this erro r affecte d the re sult of th e trial.
Although thi s argument by the pr osecuting at

torney, when taken in t he context of

the State’ s closing ar gument as a whole, appear s to be an attempt to recount t he evidence pres ented at trial, t he cumulativeeffect of this err or when viewed in light of the im prope r “miss ing witn ess a rgum ent” se ems fairly serious. Not only was i nadmissible ev idence presented to the j ury, th e prosecution compounded that err or by present ing argument based on t hat evidence. The combinat ion of the se two improper ar guments may have served to diver t the jury ’s atten tion from adm issible r eliable eviden ce to in adm issible evidence and specul ation.

No curative measures were undertaken by the trial court . This was perhaps the resu lt of t he defense’s failure to object. However, in l ight of t he trialcourt’s erroneous admissi on of evidenceregarding t he video tape incident, a ny objec tion by the d efense probab ly would h ave bee n overrule d. The trial court did not inst ruct the j ury that it shoul d not consider this i mproper argument, leav ing the i mpression that this argument

was a validconsiderat ion for the verd ict.

C. PROSECUTOR’ S PERSONAL BE LIEFS A ND OPINI ONS
Appellant also all eges that the State improperly interjected the District Attorney’ s personal opi nions and feel ings into the closi ng argument. Appell ant-15-

objected t

wice to th e State’s comments and his object ions were sustained. The question presented is whether the argument so tainted the trialthat the verdict cann ot be re lied up on. It is im poss ible to s ay bey ond a reaso nable doubt th at it did not.
The p ortions of th e prose cutor’s arg umen t to which A ppellant o bjects came at the end of t he State’s i nitialclosing ar gument: “I don’t know how
man y folks w ere in th e hou se wh en it ha ppen ed. I do n’t kno w if ever ytime little Tere sa was i n th e bed roo m, bu t I kno w whe re K eit h Hod ge wa s. T ina tol d me where he was when she was abused. ” And again in t he State’s f inal cl osing argum ent:
I guarantee the Ci ty of Gatl inburg giv es vacation days... I believe my dad dy hung the mo on, We’ ve had our problems, but I love my daddy , and I woul d neverbelieve s ome thin g like t hat about my daddy. But you know, t he last to know is your family, espec ially when you’re talki ng about child sexual abu se. There’s p reachers been guilty of this, there’s boy scout le aders that hav e been gu ilt y of this....W ell, I’lltell you what’s not rationalis chil d abuse. You know, th at doe sn’t m ake s ense , but I kn ow it happens.... She said, “Tina wen t into the re st room w ith some boys and com e out and said, ‘I gave hi m a blow job.’” A twelve ye ar old girl. I think i t refl ected more on her than it di d litt le Tina for telli ng a story l ike that she took her to a party like that, her two or thre e or four years olde r.” Following Ap pellant’s objections, the trial court admon ished the jury saying:
These are arguments that you are heari ng a nd have heard. I will tell you now, a nd will tell yo u again in a few minutes, this case i s decided solely on the evide nce that comes from the witness’ stand . You w ill notice t hat neither of these attorneys have been sworn, and put on t he witness stand. W hat they are prese nting to you is argum ent....A ll I want you to remember is that argum ent is-16- not eviden ce, bu t it is certa inly something that you shou ld consider i n helping deci de this case.

The law is clear on this point: (T)he p rosecu tor is an ad vocate, a nd is entitled to pursue his r

ole with t horoughness and vi gor. But, as set ou t in Just ice So utherla nd’s cla ssic op inion in Berger v. Uni ted States , 295 U.S . 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935), the prosecutor also acts [as]: ...t he representat ive not of

an ordinary

party to a controve rsy, but of a sovereignty whose obligation to govern impartial ly is as

compelling as its obl igation to govern at all; and wh ose intere st, therefore, in a cr iminal prose cution is not th at it shall wi n a case, but t hat just ice sh all be done. As such, he is i n a peculiar and very defi nite sense t he servant of the l aw, the t

wo fold aim of whic h is tha t guilt shall not escape or innocence suffer. He may prosecute with earnestness and vig or, inde ed he shou ld do so. But, whi le he may strike ha rd blows, he is not at liberty to strike foul ones

. It is as mu ch his du ty to refrai n from improper metho ds calcu lated to produce a wrongful conviction as it

is to use every legitim ate me ans to bring a bout a just on e. It is fair to say that t he average jury, in a greater

or lesser degree, has conf idence that these obligations, which so plainl y rest upon t he prosecutingattorney , willbe faithfully obse rved.-17- Consequently, improper suggestions, insinuati ons, and especially asserti ons of personal knowl edge are apt to carry much weight against t he accused when they should pro perly carry none. Judge v. State , 539 S.W .2d 340, 344 -45 (Tenn . Crim. App. 19 76).

The conduct of the prosecutingattorney went beyond the bound s of proper argu ment. In light of the trust with w hich the jury views the a ttorneys for the State, we cannot find that

the impermissi ble comments did not influence the jury’s verd ict.
In light of the cumulat ive effect of al l the i mproper remarks made by the prosecutor during closi ng argument, we cannot say that t hese errors di d not impermissibl y infect

Appellant’ s trialwith unfai r prejudi ce. Therefore we find Appe ll ant

must be a ff ord ed a new t ri al as to allcha rge s ag ain st h im.

V. INTRODUCTION OF PRIOR CONSISTENT STATEMENTS Appellant compl ains that the tri al court er red in admit ting the testimony of two sch ool officials to w hom M s. Mullinex re ported th e abus e by Ap pellant. It is true that

ordinari ly pri or consistent statement of a witnes s are not admis sible to bo lster the witn ess’ cred ibility. State v. Braggs , 604 S.W.2d 883, 885 (Tenn. Crim. App. 1980). However, “prior consistent

statements may be admissible. ..to r

ehabili tate a wit ness when insinuat ions of recent fabri cation have be en ma de, or wh en delibe rate falseh ood ha s been implied. State v.-18-

Benton , 759 S.W.2d 427, 433 (Tenn. Cr im. App. 1988). Before pri or consistent statements may be admissi ble, 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 m atter sub judice , during cross-examinat ion, the d efense repeatedly asked Ms. Mull inex whether she ever tol d anyone of the ab use and whether she told all the detai ls she rel ated at trialto the people she told earl ier. The testimony of Mr. Townsend and Ms. Hughes was properly admitted to show that Tina Hel ton Mulli nex did tel l about the abu se. This issue is with out me rit.

VI. EVIDENCE A

T SENTENCI NG HEARI NG Finally , Appellant

contends that

the tri al court er red in receiving testimony at

the sentenci ng hearing regar ding Appellan t’s molestation of t hree women other than Tina Hel ton Mulli nex. Tennessee Code Annotate d § 39-13-204 permits, at a sentencing heari ng, evidence " as to any matter that the court deems relevant to the punishment, " inclu ding (but not limited to) "t he nature a nd circum stance s of the crim e." State v. Nich ols , 877 S.W.2d 722, 731 (T enn. 1 994). E videnc e is rela tive to the punis hme nt, and thus a dmis sible at the sentencing heari ng, only i f it i s relevant to an aggravat ing circ umstance, or to a m itigating facto r raised by the defen dant. State v. Bates , 804 S.W.2d 868 (Ten n. 1991)( citing State v. Cozzolino , 584 S.W.2d 765, 768 (Tenn. 1979)). The testimony of t hese witnesses was properly admitted to show that Appe llant had a history of crim inal beha vior in additio n to that ne cessar y to establi sh the appropri ate range. Tenn. Code Ann. § 40-35-114(1) . This iss ue is without m erit.-19- Therefore, t he judgment of t he trialcourt is reversed and r

emanded for
a new trial on a ll coun ts exce pt cou nt four o f indictm ent 55 31 wh ich is dismissed for

the reasons stated hereinabov e.

____________________________________ JERRY L . SMI TH, J UDGE

CONCUR:

___________________________________ GARY R. WADE, PRESI DING J UDGE

___________________________________ DAVID H. WELLES , JUD GE-20-