We note that the defendant had remarried at the time of trial, and her last name had been changed to

1

“Carpenter.” However, it is the policy of this court to use the defendant’s name as it appears in the indictment.

It is the policy of this court to refer to minor victims of sexual abuse by their initials. 2

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

February 24, 2004 Session

STATE OF TENNESSEE v. TAMMY KINCANNON1

Direct Appeal from the Criminal Court for Roane County

No. 12483B E. Eugene Eblen, Judge

No. E2003-01564-CCA-R3-CD - Filed July 19, 2004

Following a jury trial, the defendant, Tammy Kincannon, was convicted of aggravated sexual battery,

a Class B felony, and sentenced as a violent offender to eight years in the Tennessee Department of

Correction. On appeal, she argues that the evidence was insufficient to support her conviction and

that the trial court erred in not requiring the State to make an election of the offenses and in not

instructing the jury as to the lesser-included offenses of aggravated sexual battery. Following our

review, we agree that the State failed to make an election and reverse the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed and

Remanded for a New Trial

ALAN E. GLENN,J., delivered the opinion of the court, in which GARY R. WADE, P.J., and NORMA

MCGEE OGLE, J., joined.

Charles B. Hill, II, Kingston, Tennessee, for the appellant, Tammy Kincannon.

Paul G. Summers, Attorney General and Reporter; Michelle R. Chapman, Assistant Attorney

General; J. Scott McCluen, District Attorney General; and D. Roger Delp and Frank A. Harvey,

Assistant District Attorneys General, for the appellee, State of Tennessee. 

OPINION

FACTS

At the defendant’s March 26, 2003, trial, the victim, A.F., testified that she was born on 2

January 25, 1988, that the defendant is her mother, and that she was currently living with her father
Although the victim testified as to two acts, apparently occurring during the same episode, we are considering

3

these as a single act for the purposes of our review. However, this is not necessarily the case in a retrial of this matter.

See State v. Kendrick, 38 S.W.3d 566, 569 (Tenn. 2001).

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and stepmother in Alabama. However, in the summer of 1996, the victim and her sister were living

with their mother and stepfather, Terry Kincannon, in a house trailer in Roane County, Tennessee.

She said that her stepfather had been charged with sex offenses committed against her in the summer

of 1996 and at other times and that the defendant had witnessed some of the incidents. The victim

then related an incident when the defendant had sexual contact with her:

Q I want you to tell the jury in your own words, during the summer

of ‘96, what contact, if any, physical contact you or your mother had

when these things were going on with your stepfather, [T]erry

Kincannon.

A My mother and I had kissed. We had . . . touched, and our

mouth parts had went down on our private parts on each other.

Q Between the legs?

A Yes, sir.

Q Did your mother’s mouth go down between your legs?

A Yes, sir.

Q Did she touch you there?

A Yes, sir.

Q Did your mouth go down between her legs?3

A Yes, sir.

Q Is this something that your stepfather encouraged you and your

mom to do?

A He said that it would – that if she loved him that she would do

it. So he kind of encouraged.

Q And did she say anything to you when she was doing this?
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A It was kind – it was quiet. No one really said anything. It was

just like a – it was – nothing was really said.

Q Did you say anything to either one of them while this was going

on?

A No, sir. I was just – I was scared. 

. . . .

Q Just to make sure it’s clear, I want to go back. When you talked

about touching between the legs, which is touching in the vagina

area– 

A Yes, sir.

Asked how she knew that it was the summer of 1996 when the incident between her and the

defendant occurred, the victim replied, “Because I can remember just about – I was – I can kind of

remember how old I was on some of this stuff. And about ‘96 I was in the second or third grade, and

I was living in the trailer.” She could not remember the date or the day of the week of the incident,

or whether it had occurred during the school year, but said she was certain it had occurred in the

trailer she lived in in Roane County.

The victim said that when the defendant initially asked her if anything had been happening

between her and Terry Kincannon, she denied anything had happened, but she and her sister later

told the defendant what their stepfather had been doing to her. She acknowledged that Mr.

Kincannon had given her money “for doing that stuff.” The victim said that, even after the defendant

knew that Mr. Kincannon was sexually abusing her, the defendant would tell her that Mr. Kincannon

wanted her and would send her to him. She said that when she was in the second grade she learned

that Mr. Kincannon had been “messing with” hersister as well. After the defendant moved with her

two daughters to an apartment, a Department of Children’s Services (“DCS”) representative came

to talk to the victim. The victim could not remember exactly when she talked to the DCS

representative but said “it was after my mom and I had done what was going on.” She told the DCS

representative what Mr. Kincannon had done to her but did not tell about the incident with the

defendant.

After the victim’s father obtained custody of her, she was examined at a hospital and later

told her father, stepmother, sister, and a counselor about the incident with the defendant. The victim

said “after everything had gotten started with the Court and stuff,” while she was in the seventh
Following a bench conference, defense counsel was furnished with a copy of the victim’s notes. However, the 4

notes are not included in the record on appeal.

-4-

grade, she had written down what she could remember about the incident with the defendant. The 4

victim acknowledged that she had written in her notes that the defendant told her after the incident

that “she really didn’t want to do it.” Asked if she thought the defendant had molested her for sexual

gratification, the victim responded, “I’m positive that, you know, she didn’t want to do it. Or . . .

nobody would want to do anything like that unless they’re sick, I mean, in the head. . . . But she did.

He did.”

Stacy Griffin, a child protective services supervisor with the DCS, testified that she received

a referral involving TerryKincannon in May 2000 and that she interviewed the defendant twice, first

on August 8, 2000, and then again on November 28, 2000. Investigator Linda Booth was present

at both interviews. During the second interview, the defendant told Griffin that the first time she

remembered something sexual happening with the victim was in the summer of 1995 when Mr.

Kincannon got on top of her in the victim’s presence and told the victim that “this was how mommas

and daddies make love.” The defendant said she then performed oral sex on Mr. Kincannon and that

the victim “kissed her breasts like a newborn.” Mr. Kincannon wanted the defendant to perform oral

sex on the victim at that time, but the defendant refused. Toward the end of the interview, Griffin

asked the defendant if anything had happened between her and the victim. The defendant then told

her about an incident that she thought had occurred in May or June of 1995 when Mr. Kincannon

made her perform oral sex on the victim and made the victim perform oral sex on her and on him.

Griffin said that the defendant “talked pretty freely” during this interview.

Linda Booth, a former investigator for the Roane County Sheriff’s Department, testified that

during the second interview, the defendant said that “when you’re married you do whatever you can

to please your man. And said [Terry Kincannon] was very aggressive. If he didn’t get his way he

would get very upset. She said he manipulated her into doing something, ‘something I didn’t want

to do.’ And then went on to talk about what [the victim] had already described what happened

between the two of them.” Booth said that the defendant was not advised of her Miranda rights at

that time because she was not in custody.

The thirty-five-year-old defendant testified that she married Terry Kincannon in 1994 when

the victim was six years old and her other daughter was three years old. Asked if Mr. Kincannon’s

character had changed after they married, she replied, “[H]e took control of my mind and my body,

my life, the girls’ life, and their minds. Telling them that he’s the only one that loves us. That my

parents didn’t love me. And I believed him, because they never did come around when I was

married to him.” She said that Mr. Kincannon had been physically abusive to her during the

marriage, saying he had choked her with a clothesline in 1998 because he did not have any crack

cocaine and had choked her with a pair of pantyhose and beat her in 1996 or 1997.

The defendant said that Judy Brown was Mr. Kincannon’s first wife and that she became

friends with her after she left Kincannon in November 1999 because of his drug problem. She first
-5-

met Brown in 1994 and had visited in her home with Mr. Kincannon during family gatherings and

holidays. When the defendant learned from Ms. Brown that Mr. Kincannon had molested their

daughter, she and Brown asked the victim if Mr. Kincannon had molested her. The victim initially

said “no” but later told the defendant he did. The defendant reported Mr. Kincannon to the

authorities the next morning.

The defendant acknowledged that she spoke to Investigator Booth and DCS Supervisor

Griffin “about two or three times.” She remembered telling them that Mr. Kincannon manipulated

her and that she was scared. She denied having oral sex with the victim but admitted having sex

with Mr. Kincannon in the victim’s presence in January 1996 because he threatened to hurt her and

her daughters. Asked if she had ever said that she had oral sex with the victim for about a minute,

she replied, “Maybe at one time.” However, on cross-examination, the defendant first denied

making the comment but later acknowledged that she “could have said it.” She said that the victim’s

testimony was untruthful and suggested that the victim testified as she did because she had been

away from the defendant for three years and was upset.

On cross-examination, the defendant acknowledged that she thought “there was something

seriously wrong with the way that [Mr. Kincannon] viewed [the victim],” but she did not do anything

about it. She said her daughters told her in May 2000 that Mr. Kincannon had been molesting them.

She admitted having contact with Mr. Kincannon near the end of May 2000, even after signing a

contract with the DCS agreeing to keep her daughters away from him. She acknowledged that she

had had an affair during her marriage to Mr. Kincannon and that Mr. Kincannon told the victim

about her affair. She said she had stayed with Mr. Kincannon because he provided her and her

daughters with a place to live and because he was a father to her daughters. 

Judy Brown testified that she was married to Terry Kincannon for about three years and that

they had been divorced for about twenty-eight years. They had one daughter together and had kept

in contact through the years after their divorce. In April or May 2000, Ms. Brown’s daughter told

her that Mr. Kincannon had masturbated in front of her and on her and had rubbed her when she was

a child. When Ms. Brown confronted Mr. Kincannon about their daughter’s accusation, he did not

deny it, saying that “he was just human.” Ms. Brown said, after learning what had happened to her

daughter, she was concerned about the defendant’s daughters and was present when the defendant

talked to them in April or May. She said at that time the defendant’s daughters denied that anything

had happened between them and Mr. Kincannon. Ms. Brown said Mr. Kincannon was manipulative

and she once had been hospitalized as a result of injuries he inflicted upon her. Ms. Brown

acknowledged that the defendant was currently married to her brother.
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ANALYSIS

I. Election of Offenses

The defendant argues that the State failed to make an election of offenses at the close of its

proof, saying there was testimony regarding two, or possibly three, incidents of aggravated sexual

battery. 

Our supreme court explained in State v. Johnson, 53 S.W.3d 628, 630 (Tenn. 2001), the

prosecution's responsibility as to the election of offenses: "This Court has consistently held that the

prosecution must elect the facts upon which it is relying to establish the charged offense if evidence

is introduced at trial indicating that the defendant has committed multiple offenses against the

victim." Id. (citations omitted). The election necessity applies when there is proof of multiple

offenses committed during the period alleged in the indictment:

[W]e recognized in Rickman that out of necessity indictments often

charge general time frames that encompass several months. In those

instances, we concluded that the State may introduce evidence of sex

crimes allegedly committed against the victim during the time frame

charged in the indictment, but, at the close of the proof, the State

must elect the facts upon which it is relying for conviction.

Id. at 631 (citation omitted).

We now will determine whether an election was required in the present appeal and, if so,

whether the State elected the offense on which it was proceeding.

The indictment alleged that the defendant committed aggravated sexual battery on the victim

“on or about Summer of 1996,” and the victim testified that she and the defendant performed oral

sex on each other during the summer of 1996. Although she could not remember the date or the day

of the week, the victim said she knew the incident occurred in the summer of 1996 “[b]ecause I can

remember just about – I was – I can kind of remember how old I was on some of this stuff. And

about ‘96 I was in the second or third grade, and I was living in the trailer.” According to the

testimony of Stacy Griffin, a DCS supervisor, the defendant admitted to one or more acts of oral sex

with the victim in May or June of 1995. Thus, the defendant is correct in asserting that the State

presented evidence of at least two sexual acts between the defendant and the victim.

During the defense proof, at the conclusion of the defendant’s testimony but before Judy

Brown’s testimony began, defense counsel requested that the State make an election as to which

offense it was proceeding on:
-7-

[DEFENSE COUNSEL]: If I’m recalling this proof, you’ve got

about possibly two or three incidents of alleged wrongdoing in here.

And I haven’t heard an election yet.

[PROSECUTOR]: Just a second and I’ll make that election.

That election is aggravated sexual battery in ‘95 or ‘96.

[DEFENSE COUNSEL]: Somewhere in ‘95 or ‘96 is kind of a long

period of time, isn’t it?

[PROSECUTOR]: It’s okay as long as we’re saying one time. It’s

okay. (indiscernible) offense.

[DEFENSE COUNSEL]: Okay. Well, I’m going to object to that

election and move for a mistrial.

THE COURT: Overruled.

As we understand this interchange, the State agreed that an election was required by the proof and

selected not an act but, instead, the period during which the acts had occurred. In sum, by purporting

to make an election, the State implicitly agreed that at least two sexual acts between the victim and

the defendant had been proven and recognized that an election was required. However, the time

period selected by the State for this election, “‘95 or ‘96,” encompassed both the 1996 acts testified

to by the victim and the 1995 act which the defendant had admitted to DCS Supervisor Stacy Griffin.

Thus, while the State recognized that the trial testimony required an election, no election was made.

At the hearing on the motion for new trial, the defense argued, inter alia, that the evidence

was insufficient to support the conviction for aggravated sexual battery, that the State failed to make

an election as to “at least three different events testified to,” and that the trial court erred by not

instructing as to facilitation of sexual battery, as well as simple batteryor assault. As to these claims,

the State responded that the evidence was sufficient to sustain the conviction and that, as to electing

an offense, the prosecutor “stood over there and said to the jury, here’s the one we’re talking about.”

At the conclusion of the hearing, the trial court stated, as to the State’s responses regarding the

sufficiency of the evidence and the election of the offense, “I agree that that happened during the

course of the trial.”

The sparseness of this record has made our review difficult. By order of this court, the

appellate record was supplemented with the jury instructions, which include neither an identification

of the date of the offense for which the defendant was tried nor “heightened” instructions utilized

when evidence of other crimes is in the record. The record on appeal consists of the trial testimony

and that of the sentencing and motion for new trial hearings. Beyond the interchange previously set

out in this opinion, there are no statements by the prosecution selecting the specific offense on which
-8-

it was proceeding. Thus, the prosecutor’s standing “over there and [saying] to the jury, here’s the

one we’re talking about,” as the State asserted and the trial court agreed had occurred, could have

happened only during opening statements or closing arguments, neither of which was transcribed for

the appellate record. Normally, we might simply assume that the prosecution’s recollection was

correct and the missing portion of the record would so reflect, resulting in our dismissing the

defendant’s election argument as waived because she failed to supply a sufficient appellate record.

See Tenn. Ct. Crim. App. R. 10(b); State v. Miller, 737 S.W.2d 556, 558 (Tenn. Crim. App. 1987).

However, it would be inconsistent with the State’s election, as we have set out, of “aggravated

sexual battery in ‘95 or ‘96” for the State later to have made a specific election of one of the summer

1996 acts of oral sex, testified to by the victim, or the May or June 1995 act, confessed to by the

defendant to the DCS supervisor.

Accordingly, we conclude that the State was incorrect in recalling that an election, other than

the one which we have set out, had been made. While we recognize that it is quite unlikely the State

would have elected to proceed on other than the summer of 1996 act testified to by the victim, the

fact remains that the State created this issue by presenting proof of the defendant’s committing

aggravated sexual battery in 1995, recognizing the need to make an election as to these offenses, but

then doing so in such a fashion as to permit, with the single verdict, some jurors to convict the

defendant of the 1996 act of which the victim testified, while others could convict for the 1995 act,

of which the defendant confessed. Accordingly, we agree with the defendant’s argument that the

State failed to make an election as to the offenses of which it had presented proof, and, thus, reverse

the conviction and remand this matter for a new trial. 

II. Sufficiency of the Evidence

The defendant argues that the evidence was insufficient to support her conviction for

aggravated sexual battery, saying “the only agreement was that something happened at the trailer.

No one can say when something happened, what happened, how something happened, or why

something happened. There is just too much uncertainty in the evidence.” While we disagree with

this view of the evidence, we are unable, for reasons which we will explain, to review these claims.

Where sufficiency of the evidence is challenged, the relevant question for an appellate court

is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier

of fact could have found the essential elements of the crime or crimes beyond a reasonable doubt.

Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d

560 (1979); State v. Elkins, 102 S.W.3d 578, 581 (Tenn. 2003). The weight and credibility of the

witnesses' testimony are matters entrusted exclusively to the jury as the triers of fact. State v.

Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Brewer, 932 S.W.2d 1, 19 (Tenn. Crim. App.

1996).

To prove aggravated sexual battery, the State was required to show “unlawful sexual contact”

with the victim by the defendant or the defendant by the victim accompanied by any of the following

circumstances:
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(1) Force or coercion is used to accomplish the act and the

defendant is armed with a weapon or any article used or fashioned in

a manner to lead the victim reasonably to believe it to be a weapon;

(2) The defendant causes bodily injury to the victim;

(3) The defendant is aided or abetted by one (1) or more

other persons; and

(A) Force or coercion is used to accomplish the act; or

(B) The defendant knows or has reason to know that the

victim is mentally defective, mentally incapacitated or physically

helpless; or

(4) The victim is less than thirteen (13) years of age.

Tenn. Code Ann. § 39-13-504. “Sexual contact” is defined as “the intentional touching of the

victim's, the defendant's, or any other person's intimate parts, or the intentional touching of the

clothing covering the immediate area of the victim's, the defendant's, or any other person's intimate

parts, if that intentional touching can be reasonably construed as being for the purpose of sexual

arousal or gratification.” Id. § 39-13-501(6). 

As we have set out in detail, the State presented proof as to acts of aggravated sexual battery

occurring in 1995 and 1996. Assuming, for the purposes of our review of this issue, the State

properly had elected to proceed on one of the incidents, the record does not reveal which one was

selected. Thus, this court, in reviewing the issue, presumably must consider whether the evidence

is sufficient to sustain a conviction as to all acts testified to, ensuring, in that fashion, that we would

determine the sufficiency as to the offense elected by the State. However, we decline to engage in

such a theoretical exercise, especially in view of the fact that the defendant’s conviction is being

reversed.

III. Lesser-Included Offenses

The defendant argues that the trial court erred in not instructing the jury as to any lesserincluded offenses of aggravated sexual battery, specifically, facilitation of aggravated sexual battery.

She contends that the jury should have been instructed as to facilitation because she only did what

her husband demanded of her, and she did not have “the intent or willingness to do the bad act and

to get sexual arousal, she did only render substantial aid.” 

As we have stated, this court, by its order, supplemented the record to include the

instructions, which show, as the defendant asserts, that the jury was not instructed as to any lesserincluded offenses. However, we face the same problem in considering this issue in determining the
-10-

sufficiency of the evidence. Without knowing whether the State elected to proceed on the 1995 or

1996 offenses, assuming for purposes of considering this issue that the State did elect to proceed on

one or the other, we cannot determine what offenses should have been charged and the effect of

charging no lesser-included offenses, for the considerations are not the same as to the different

offenses. Since we have concluded that the required election was not made and we are reversing the

conviction, we decline to address this issue.

CONCLUSION

Based upon the foregoing authorities and reasoning, we reverse the judgment of the trial court

and remand for a new trial. 

___________________________________ 

ALAN E. GLENN, JUDGE