W e no te tha t t h e d e fen d a n t h a d r e m a r r ie d a t t h e ti m e o f t ria l, a n d he r la st na m e ha d b e e n c h a n g e d to 1 “C a rp e n te r.” H o w e v e r, it is the p o licy o f t h is c o u rt to us e the d e fen d a n t’s na m e a s it a p p e a rs in the ind ic tm e n t.

It i s t he p o l i cy o f

t his co urt t o refer t o m i no r victi m s o f sexu al ab use b y t he i r i nit i als. 2 

### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE

AT KNOXVI LLE Fe brua ry 24, 200 4 S es sio n STA TE OF TEN NES SEE v. TA MM Y K INC AN NON 1
Direc t Appeal from the Cr im inal Cou rt for Roane County

No. 12483B E. Eu gene Eblen, Ju dge

No. E2003-01564-CC A-R3- CD - F iled Jul y 19, 2004

F o l l o w i n g a

j u r y tr i a l , t h e d e f

e n d a n t , T a m m y

K i n c a n n o n , w a s c o n v i c t e d o f a g g r a v a t e d s e x u a l b att e r

y, a Class B f

elony , and sente nced a s a vi olent offe nder to eig ht y ear s in the Tenne ssee De partment of Correc tion. On appea l, she arg ues that the e vidence was insufficient to support her c onviction and that the trial court erre d in not requiring the State to make a n elec tion of the offe nses and in not instructing the jury as t o the l esser -included offense s of agg ravated s exual battery . Following our re vie w, we a g re e that th e Sta te faile d to make a n ele c tio n an d re ve rs e the jud g me nt o f the tr ia l c ou rt

. Te nn. R . A pp. P . 3 App e al a s o f Rig ht ; J udgm e nt of t he Cr im ina l C our t R e ve r se d and Rem anded f

or a Ne w T rial
A L AN E. G L EN N , J ., delivere d the opinion of the court, in which G AR Y R. W ADE , P.J ., and N OR MA M C G EE O G LE , J ., joined.
Charles B . Hill, I I , King ston, Tennessee , for the a ppellant, Tammy

Kincannon. Paul G. Summers, Attorney Gene ral a nd Reporte r; M i ch elle R. Chapman, Assistant Attorney G e n e r a l ; J

. S c o t tM c C l u e n , D i s tr i c tA t t o r n e y G e n e r a l ; a n d D

. R o g e r D e l p a n d F r a n k

A

. H ar v e y, Assistant District Attorney s Gene ral, for the appe llee, State of Te nnessee
. OP IN ION
F AC TS
At the def

endant’ s Marc h 26, 2003, trial , t he victim, A.F., testified that she wa s born on 2 J anuary 25, 1988, that the def

endant is her

mother, and that she was curr ently living with he r fatherA l t ho ugh t he vi ct i m t est i f i ed as t o t wo act s, ap p arent l y oc curri ng duri ng t he same ep i sod e, we are co nsi d eri ng 3
t hese as a si ngl e act fo r t he p urpo ses of o ur r evi ew. H o wever, t hi s i s no t necess ari l y t he case i n a ret ri al of t hi s m at t er. Se e Stat e v. K end ri ck, 38 S.W

. 3 d 56 6 , 56 9 (T enn. 20 0 1 ). -2- and stepmother in Alabama

. Howeve r, in the summer of 1996, the victim a nd her sister wer e living with their mother and ste pfathe r, Terry Kincannon, in a house trailer in Roane County , Tenne ssee. She said that her ste pfathe r had be en cha rg ed with sex offenses committed a g ainst her in the summer of 19 96 a nda t othe r t ime s and that the de fe nd a nt ha d w itn e sse d s ome of the inc ide nts . T he vic tim then re lated an inc ident when the de fendant had sexual contact with her :

Q I want y ou to te ll the jury in y our own wor ds, during the summer of ‘96, what contac t, if any , phy sical contact y ou or y our mother ha d when these things we re g oing on wi t h y our stepfather, [T]erry Kincannon.
A My mother and I

had kissed. We had . . . t o u ched, and our mouth parts had we nt down on our private parts on ea ch other

. Q B e tw e e n th e le g s?
A Yes, sir. Q Di d y ou r m oth e r’ s mo uthg o d ow n b e tw e e n y ou r l e g s?
A Yes, sir. Q Did she touch y ou there ?
A Yes, sir. Q Di d y ou r m ou th g o d ow n b e tw e e n h e r l e g s? 3
A Yes, sir. Q I s this something that y our st epfather encoura g ed y ou and y our mom to do?
A He sa id that it would – t h at i f s he loved him that she would do it. So he kind of encoura g ed. Q An d d id s he sa y

a nythi ng to y ou wh e n s he wa s d oin g thi s?-3- A I t wa s k in d

– it w a s q u ie t. N o o n e r e a ll y s a id a n y th in g
. I t was just li ke a – it wa s – nothing wa s rea lly said. Q Did y ou say

anything to either one of them while this was g oing on?
A No, sir. I

was just – I

was sca red.

. . . . Q J ust to make sure it’s c lear , I want to g o back. When y ou talked about touching betwee n the leg s, which is touc hing in the v agina are a–
A Yes, sir.
Asked how she knew that it was the summer of 1996 wh en the incident betwe en her and the defe ndant occ urre d, the victim replied, “ Be cause I can r emember just about – I was – I can kind of reme mber how old I

was on some of

this stuff. And about ‘96 I was in the sec ond or third g rade , and I wa s livin g in the tr a ile r. ” She c ou ld n ot r e me mbe r the date or the da y of the we e k o f the inc ide nt, or whe ther it had oc curr ed dur i n g t h e s chool y ear , but said she was c erta in it had occur red in the tr a i l e r s h e l i v e d i n i n R o a n e C o u n t y. The victim said that when the defe ndant initially asked her if anything ha d been ha ppening betwee n her a nd Terry

Kincannon, she denied an y t h i n g had happe ned, but she a nd her sister later told the defe nd an t what their stepf ather had bee n doing to he r. She ac knowledg ed that Mr. Kincannon ha d g iven her money “for doing that stuff.” The victim said that, eve n afte r the de fenda nt knew that Mr. Kincannon wa s sexually abusing her, the defe ndant would t ell her that Mr. Kincannon wanted he r and w ould send her to him. She said that when she was in the s econd gr ade she learned that Mr. Kinca nnon had bee n “messing with” her sister as well. Afte r the de fendant moved with her tw o d a ug hte rs to an a

pa rt me nt, a De pa rt me nt o f Chil dr e n’ s Ser vic e s (“ DC S” ) r e pr e se ntativ e c a me to t a lk t o th e vic tim . The vic tim c ou ld n ot r e me mbe r e xac tly wh e n s he ta lke d to the DC S re pr e se ntativ e bu t sa id “ it w a s a ft e r m y mom a nd I ha d d on e wh a t w a s g oin g on .” She tol d th e DC S repr esentative what M r. Ki n ca n n on had done to he r but did not tell about the incident with the de fe nd a nt.
After the victim’s fathe r obtained c ustody of her , she wa s examined at a hospital and later tol d h e r f a the r, ste pmo the r, sis te r, a nd a c ou ns e lor abo ut the inc ide nt with the de fe nd a nt. Th e vic tim sa id “ a ft e r e ve rythi ng ha d g ott e n s tart e d w ith the Cou rt and st uff ,” w hil e sh e wa s in the se ve nthFo l l o wi ng a be nch co nference, de fense counsel w as f urni shed wi t h a co p y of t he vi ct i m ’ s no t es. H o wever, t he 4

n o te s a re no t i n c lud e d in the re c o rd o n a p p e a l. -4- g rade , she had w ritten down what she could re member a bout the incident with the def endant. The

4 victim acknowledg ed that she had written in her notes that the def

endant told her

afte r the incide nt that “she r eally

didn’t want to do it.” Asked if she thought the de fendant had molested her for se x ual g ratification, th e v ictim responded, “ I ’m positive that, y ou know, she didn’t wa nt 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 Griff in, a child protec tive service s supervisor with the DCS, testified that she re ceive d a re fe rr a l in vo lvi ng Te rry Ki nc a nn on in Ma y 20 00 a ndthat sh e int e rv ie we d th e de fe nd a nt t wi c e , f ir st on Aug ust 8, 2000, and then ag ain on November 28, 2000. I nvestig ator Linda B ooth was pre sent at both interviews. During the second interview, the de fendant told Griffi n that the first time she reme mbere d something se x ual happe ning w it h the victim was in the summer of 1995 w hen Mr. Kincannon g ot on top of her in the victim’s prese nce and told the victim that “this was how mommas and daddie s make love.” The de fenda nt said she then perf ormed oral sex on Mr. Kincannon and that the victim “kissed her brea sts like a newborn.” Mr. Kinc annon wa nted the def endant to perform ora l se x on th e vic tim

a t that tim e , bu t the de fe nd a nt re fu se d. To wa rdthe e ndof

the int e rv ie w, Grif

fi n a sk e d th e de fe nd a nt i f anythi ng ha d h app e ne d b e tw e e n he r an d the vic tim

. Th e de fe nd a nt the n to ld her a bout an incident that she thoug ht had occu rr ed in May or June of 1995 when Mr. Kincannon ma de he r p e rf

orm or a l se x on the vic tim a nd ma de the vic tim pe rf orm ora l sex on he r an d o n h im. Griff in said that the defe ndant “talke d pretty fre ely ” during this int ervie w.
L inda B ooth, a forme r investig ator for the Roane CountySheriff’ s Depa rtment, testified that during the s econd interview, the defe ndant said that “w hen y ou’re marrie d y ou do whateve r y ou can to please y our m an. And s aid [ Terry Kincannon] was very ag g ressive. I f he didn’t g et hi s way he would g et very

upset. She said he manipulate d her into doi ng something, ‘something I didn’t want to do.’ And then we nt on to talk about what [the victim] had alr eady described what ha

ppened betwee n the two of them.” Booth said that the defe ndant was not a dvised of her Miranda rig hts at t h a tt i m e b e c a u s e s h e w a s n o ti n c u s t o d y. The thirty -five- y ear -old defe ndant testified that she married Terry Kincannon in 1994 whe n the victim was six y ear s old and her other daug hter was three y ear s old. Asked if Mr. Kinc annon’s c h ar a c t e r h a d c h a n g e d a f

t e r t h e y m arr i e d , s h e r e p l i e d , “ [ H ] e t o o k c o n tr o l o f m y m i n d a n d m y b o d y, my lif e , th e g ir ls’ lif

e , a ndthe ir

min ds . T e lli ng the m that he ’s the on ly on e that lo ve s u s. Th a t my pare nts didn’t love me. And I believed him, bec ause the y n ev er d i d come a

round whe n I

was marrie d to him.” She said th at Mr. Kinca nnon had bee n phy sically abusive to her

during the marria g e, s ay i n g h e had choke d her w ith a clothesline in 1998 bec ause he did not have any cra ck cocaine and ha d choked he r with a pa ir of panty hose and be at her

in 1996 or 1997.
Th e de fe nd a n ts a i d t h a tJu d y B r o w n w a s M r
. K i n c a n n o n ’ s f i r s tw i f e a n d t h a ts h e b e c a me frie nd s w ith he r a ft e r s he le ft Ki nc a nn on in No ve mbe r 199 9 be c a us e of his dr ug pr ob le m. S he fi rs t-5-

met Br own in 1994 and had visited in her home with Mr. Kincannon during family g atherings a nd ho lid a y s. Whe n th e de fe nd a nt l e arn e d f ro m Ms . B ro wn that Mr . Kin c a nn on ha d mo le ste d th e ir daug hte r, sh e a ndB ro wna sk e d th e vic tim if Mr . K inc a nn on ha d mol e ste d h e r. Th e vic tim ini tia lly said “no” b u t l at er told the de fenda nt he did. The de fendant reporte d Mr. Kinca nnon to the au t h o ri t i es t h e n ex tm o rn i n g.
The de fenda nt acknowle dg ed that she s p o k e to I nvestig ator B ooth and DCS Supervisor Griff in “about two or thre e times.” She reme mbere d telling them that Mr. Kincannon manipulate d her a nd that she wa s scar ed. S h e d en i ed having oral sex with the victim but admit ted having sex with Mr. Kincannon in the victim’s pr esenc e in January 1996 beca use he threatened to hurt he r and her daug hters. Aske d if she had e ver sa id that she had ora l sex with the victim for about a minute, she re plied, “May

be at one time.” Howe ver, on c ross-examination, the defe ndant first denie d making the comment but l ater acknow ledg ed that she “c ould have sa id it.” She said that the victim’s testimonywas untruthful a nd sug g ested that th e v i ct im testified as she did bec ause she had bee n a way fr om the de fe nd a nt f

or thr e e y e ars a ndwa s u ps e t.
On cr oss-examination, the de fendant a cknowledg ed that she thoug ht “there was something seriously wrong with the way

that [Mr. Kincannon] viewed [the victim] ,” but she did not do anything abo ut i t. S he sa id h e r d a ug hte rs tol d h e r i n M a y 20 00 that Mr . Kin c a nn on ha d be e n mo le sti ng the m. S h e a d m i t t e d h a v i n g co n t ac twi t h M r. Ki n ca n n o n n ea r t h e e n d o f M ay2 0 0 0 , ev en af t ers i gn i n g a contra ct with the DC S ag ree ing to keep he r daug hters aw ay from him. She acknow ledg ed that she ha d h a d a n a ff

a ir du ri ng he r m arria g e to M r. Ki nc a nn on and that Mr . K inc a nn on tol d th e vic tim about her aff air. She said she had stay ed with Mr. Kincannon beca use he pr ovi d ed her

and her daug hters with a plac e to live and be cause he wa s a father to her daug hters.
J udy Br own testified that she w as married to Terry Kincannon f

or about thre e y ear s and that they had bee n divorce d for a

bout twenty -eig ht y ear s. They had one da ug hter tog ether

and had ke pt in c on ta c t th ro ug h th e y e ars a ft e r the ir div or c e . In April o r M a y 20 00 , M s. B ro wn ’s daug hte r t old her that Mr. Kincannon had masturbated in front of he r and on he r and ha d rubbed he r whe n she wa s a child. When Ms. Br own conf ronted Mr. Kincannon a

bout their daug hter’s a ccusation, he did not deny it, say ing that “he wa s just human.” Ms. Br own said, af ter lea rning what had ha

ppened to he r daug hter, she w as conc erne d about the def endant’ s daug hters and was present when the defe ndant talked to them in April or May

. She said at t hat t ime the def endant’ s daug hters denie d that anything had happe ned betwe en them and Mr

. Kincannon. Ms. Brow n said Mr. Kinca nnon was manipulative and she onc e had be en hospitalized as a re sult of injuries he i n fl icted upon her . Ms. Brow n acknow ledg ed that the de fenda nt was cur rently marrie d to her brothe r.-6- AN AL YSI S
I. Election of O ff

enses
Th e de fe nd a nt a

rg ue s th a t th e Sta te faile d to make a n ele c tio n of of fe ns e s at the c los e of

its proof, sa y ing the re was testimony reg arding two, or possibly three , incidents of ag g ravated sexual battery

. Our supre me court expl ained in State v. J ohnson, 53 S.W .3d 628, 630 (Tenn. 2001) , the prosec ution's re sponsibili ty as to the elec tion of offe nses: "T his Court has consistently held that the prosec ution must elec t the fac ts upon which it is relying to establish the char g ed off ense if e vidence i s i n t ro d u ced at trial indicating that the def endant ha s committed mult iple offe nses ag ainst the vic tim ." I d. (c itatio ns omi tte d) . T he e le c tio n n e c e ssi ty app lies whe n th e re is p ro of of mul tip le of fe ns e s c omm itt e d d uring the pe ri oda lle g e d inthe ind ic tme nt:

[W ]e recog nized in R ickman that out of nece ssity indictments often c ha rg e g e ne ra l ti me fr a me s that e nc omp a ss se ve ra l mon ths

. I n th os e instances, we conclude d that the State may introduce e vidence of sex c ri me s a lle g e dly c omm itt e d ag a ins t the vic tim du ri ng thetim e fr a me c ha rg e d in the ind ic tme nt, bu t, at th e c los e of the pr oo f, th e Sta te must elect the fa cts upon which it is rely ing f or convic tion.
I d. at 631 (c itation omit ted).
We now will determine whe ther a n elec tion was requir ed in the pre sent appe al and , if so, wh et h ert h e S t at e e l ec t ed t h e o ff en s e o n wh i ch i twa s p ro ce ed i n g.
Th e ind ic tme nt a lle g e d tha t the de fe nd a nt c omm itt e d a g g ra vate d s e xua l batte ry on the vic tim “on or a bout Summ er of

1996,” and the victim testified t hat she a nd the def endant pe rformed ora l sex on each other

during the summer of 1996. Although she could not r emember the date or the day of the we ek, the victim said she kne w the incident occurr ed in the summer of 1996 “[b] eca

use I can reme mber just ab o u t – I

was – I can kind of

reme mber how old I

was on some of

this stuff. And about ‘96 I

was in the sec o n d o r t h i rd grade, and I was living in the trailer.” Acc ording to the testimonyof Stacy

Griff in, a DCS supervisor, the def

endant a dmitted to one or more a cts of ora l sex wi th the vic tim

in M a y or June of 19 95 . T hu s, the de fe nd a nt is corr ect in a sse rt ing that th e State pr e se nte d e vid e nc e of

a t le a st t wo se xua l a c ts b e tw e e n th e de fe nd a nt andthe vic tim

. During the def

ense pr oof, at t h e conc lusion of the defe ndant’s testimony but before J udy Br own’s testimony

beg an, def

ense c ounsel reques ted that the State make an ele ction as to which offe nse it was proc eeding on:-7- [DEF E N SE CO U N SE L ]: I f I ’ m r e c a ll in g th is p r o o f, y o u ’ v e g ot about possibly

two or three incidents of alleg ed wr ong doing in he re. An d I ha ve n’ t he arda n e le c tio n y e t. [P ROSECUTOR] : J ust a second and I ’ll make that e lection.
That ele ction is ag g ravated sexual battery in ‘95 or ‘96. [DEFENSE COUNSEL ]: Somewhere in ‘95 or ‘96 is kind of a long pe ri odof tim e , is n’ t it ? [P ROSECUTOR] : I t’s okay as long as we’ re say ing one time. I t’s okay . (indiscernible) off ense. [DEFENS E COUNSEL ]: Okay . Well, I ’m g oing to objec t to that e le c tio n a ndmov e fo r a

mis tr ia l.
THE COURT: Over

ruled.
As we understand this interc hang e, the State ag ree d that an elec tion wa s require d by the proof and selec ted not an act but, instea d, the period during which the ac ts had occ urre d. I n sum, by purporting to make an e lection, the State implicitlyag ree d that at least two sex ual acts betwee n the victim and the de fe nd a nt h a d b e e n p ro ve n a ndre cogni z ed th at an e le c tio n w a s r e qu ir e d. Ho we ve r, the tim e period sele cted by

the State for this ele ction, “‘95 or ‘96,” encompa ssed both the 1996 acts testified to by the victim and the 1995 ac t which the def endant ha d admitted to D CS Supervisor Stacy Griff in. Thus, while the State re cog nized that the trial testimonyrequire d an election, no elec tion was made

. At the hea

ring on the motion for new trial, the def ense a rg ued, int e r a lia , that the evidenc e was insuffic ient to support the conviction for a g g ravated sexual battery , that the State fa iled to make an ele ction as to “at least three differ ent eve nts testified to,” and that the tria l co u rt er red by not ins truc tin g a s to fa c ili ta tio n o f s e xua l batte ry , a s w e ll a s si mpl e batte ry or a ssa ult

. As to the se c la ims , the State re sponded that the e vidence was suff icient to sustain the conviction and that, as to elec ting an off ense, the prosec utor “stood over there and said to the jury , here ’s the one w e’r e talking about.” At the conc lusion of the hearing, the tri al co u rt s t at ed, as to the State’ s responses r eg arding the sufficie ncy

of the e vidence and the e lection of the of fense , “I a gre e that that happene d during the course of the trial.” The spar seness of this re cord ha s made our r eview dif fi cu l t

. By order

of this court, the appellate rec ord wa s supplemented with the j ury instructions, which include ne ither an ide ntification of the date of the of

fense for whic h the def

endant wa s t ri ed nor “ heig htened” instructions util ized when e vidence of other crimes is in the rec ord. The rec ord on appea l consists of the trial testimony and that of the sentenc ing and motion for new trial hea ring s. Be y ond the interc hang e pre viouslyset out in this opinion, there a re no state ments by

the prosec ution se lecting the specific offe nse on which-8-

it was proce eding . Thus, the prosec utor’s standing “over there and [say ing] to the jury , here ’s the one we ’re talking about,” as the State a sserted a nd the trial court ag ree d had occ urre d, could have happene d only

during opening statements or c losing arg uments, neither of which wa s transcribed for the appe llate re cord. N ormally , we m i gh t simplyassume that the pr osecution’s re collection wa s corr ect a nd the missing portion of the r ecor d would so reflect, re sulting in our dismissing the defe ndant’s ele ction arg ument as waived beca use she failed to supply a sufficient appellate rec ord. See Te nn. Ct. Crim

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

. Howeve r, i t wo u l d be inconsistent with the State’s ele ction, as we have se t out, of “ag g ravated sexual battery in ‘95 or ‘96” for t he S tate later to have made a specific elec tion of one of the summer 1996 acts of or al sex, testified to bythe victim, or the May or June 1995 act, c o n fessed to by the defe ndant to the DCS supervisor.
Acc ording ly , we c onclude that the State w as incorr ect in rec alling that an ele ction, other than the on e wh ic h w e ha ve se t ou t, h a d be e n ma de . Wh ile we re c og nizethat it is q uit e un lik e ly

the Sta te would have e lected to pr ocee d on other than the summer of 1996 a ct testified to by the victim, the fac t r e main s th a t th e St a te c r e a te d th is is s u e b y p r e s e n ti n g p r o o f

o f th e d e f e n d a n t’ s c o mmitt ing ag g ravated sexual battery

in 1995, rec og nizi ng the need to make an elec tion as t o these off enses, but then d o i n g s o in such a fa shion as to permit, with the single ve rdict, some jurors to c onvict the de fe nd a nt o f the 19 96 a c t of wh ic h th e vic tim

te sti fi e d, wh ile oth e rs c ou ld c on vic t f or the 19 95 a c t, of which the defe ndant co n fe s s ed

. Acc ording ly , we a g ree with the defe ndant’s ar g ument that the Sta te faile d to make a n e le c tio n a s to the of fe ns e s o f w hic h it

ha d p re se nte d p ro of

, a nd , th us , r e ve rs e the conviction and r emand this matter f or a ne w trial.
II. Su ff iciency of the Evid ence
The de f e n d a n t ar g u e s th a t th e e v id e n c e w a s in s u f f ic ie n t to s u p p o r t h e r c o n v ic ti on for ag g ravated sexual battery , say ing “ the only ag ree ment was that something happene d at the tra iler. No one c an say

when something happene d, what happe ned, how som et h i n g h appened, or why so me thi ng ha

pp e ne d. Th e re is j us t to o muc h un c e rt a inty in the e vid e nc e .” Whil e we dis a g re e wi th thi s v ie w o f the e vid e nc e , w e are un able , f or re a so ns wh ic h w e wi ll e xpla in, to r e vie w the se c la ims

. Where suff

iciency of the e vidence is challeng ed, the rele vant questi on for an appellate court is whether, a fter vie wing the evidence in the l ight most favor able to the prosecution, any rational trier of fa c t c ou ld h a ve fo un d the e sse nti a l ele me nts of the c ri me or c ri me s bey on d a re a so na ble do ub t. Tenn. R. App. P

. 13(e) ; J ackson v. Virg inia, 443 U.S. 307, 319, 99 S. C t. 2781, 2789, 61 L . Ed. 2d 560 (1979); State v. Elkins, 102 S.W .3d 578, 581 (Tenn. 2003) . The we ight a nd cre dibilit y of the witnesses' tes ti mo n y

ar e matt e r s e n tr

u s te d e xc lu s iv e ly

to th e ju r y

a s th e trie r s o f

f a c t. St a te v. Sheffield, 676 S.W .2d 542, 547 (Tenn. 1984); State v. Br ewe r, 932 S.W .2d 1, 19 (Tenn. Crim. App. 1996).
To pr ov e a g g ra vate d s e xua l batte ry , th eS t a t e wa s r e qu ir e d to sh ow “ un la wf ul s e xua l c on ta c t” with the victim by

the def endant or the def endant by the victim acc ompanied by any of the following c ir c ums ta nc e s:-9- (1) For ce or coer cion is used to ac co m p lish the act and the de fe nd a nt i s a

rm e d w itha

we apo n o r an y art ic le us e d o r f a sh ion e d in a manne r to lead the victim reasona bly to believe it to be a w eapon; (2 ) Th e de fe nd a nt c a us e s b od ily inj ury to the vic tim ; (3) The de fendant is aided or ab et t ed byone (1) or more other pe rsons; and (A) F orce or coe rcion is used to ac complish the act; or (B) The de fendant knows or has re ason to know that the vic tim is ment allyde fe c tiv e , me nta lly inc a pa c itate d o r p hy sic a lly helpless; or (4) The victim is less than thirteen (13) y ear s of ag e. Tenn. Code Ann. § 39- 13-504. “Sexual contac t” is defined a s “the intentional touching of the victim's, the de fenda nt's, or any other pe rson' s inti m at e parts, or the intentional touching of the c lothin g c ov e ri ng the imm e diate are a of the vic tim ' s, the de fe nd a nt' s, or a ny oth e r p e rs on ' s in tim a te parts, if that intentional to u ch i n g ca n be re asonably construed a s being for the pur pose of se x ual arousa l or g ratification.” I d. § 39-13-501( 6).
As we ha ve set out in detail, the State pre sented proof as to ac ts of ag g ravated sexual battery o c c u rr i n g i n 1 9 9 5 a n d 1 9 9 6

. A s s u m i n g , f o r t h e p u rp o s e s o f o u r r e v i e w o f t h i s i s s u e , the Sta te proper ly had ele cted to proc eed on one of the incidents, the rec ord does not re veal whic h one wa s selec ted. Thus, this court, in revie wing the i ssue, pre sumably must consider whe ther the e vidence is s uf fi c ie nt t o s us ta in a

c on vic tio n a s to a ll a c ts t e sti fi e d to , e ns uring , in that fa sh ion , tha t w e wo uld de te rm ine the su ff

ic ie nc y a s to the of

fe ns e e le c te d b y the State . H ow e ve r, we de c lin e to e ng a g e in such a the oretical ex er ci s e, especially in view of the f

act that the de fendant’s conviction is being reve rsed.
III. Lesser-Included Of fenses
The defe n d an t ar gues that the trial c ourt err ed in not instructing the jury as to anylesseri n c l u d e d o f

f e n s e s o f a g g r a v a t e d s e x u a l b a t t e r y, s p e c i f i c a l l y, f a c i l i t a t i o n o f

a g g r a v a t e d s e x u a l b a t t e r y. She contends that the j ury should have be en instructed a s to facilitation beca use she only

did what her husband demande d of her , and she did not have “the intent or w illingness to do the bad a ct and to ge t sex ual ar ousal, she did only rende r substantial aid.”
As we ha ve stated, this court, by its order, supplemente d the re cord to include the instructions, which show, as the def endant a sserts, that the jury was not instructed a s to anylesserincluded off

enses. How ever , we f

ace the same pr oblem in considering this issue in dete rmining the-10-

sufficie ncy

of the e vidence . Wit hout knowing w hether the S tate elected to proce ed on the 1995 or 1996 offe nses, assuming for purposes of conside ring this iss ue that the State did ele ct to proce ed on one or the other, we cannot determine what off enses should have been c harg ed and the eff ect of ch ar gi n g n o lesser- included off enses, f or the c onsiderations ar e not the same as to the diffe rent offe nses. Since we have c oncluded that the require d elec tion was not made and we are r ever sing the conviction, we de cline to addr ess this issue.
CO NC LU SION
Ba sed u p o nth ef

o r e g oing a

uthorities and re asoning , we r ever se the judg ment of the trial c ourt and re mand for a

new tria l.

___________________________________ ALAN E. GL

ENN, JUDGE