### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs N ovembe

r 20, 2002
STATE OF TENN ESSEE v. ART MA YSE
Appeal from the Criminal Court for Fentress County No. 7753 E. Shayne Sexton, Judge

No. M2001-03172-CCA-R3-CD - F iled January 22, 2003

The Defendant, Art May se, was convicted by a jury of eleven counts of rape of a child, ea ch a class A felony, and

seven counts of aggra

vated sexual battery, e ach a class B felony

. After a sentencing hearin g, he was sentenced as a Range I offender to a

n effective sentence of fifty years to be

served in the Departm

ent of Cor

rection . In th

is appea l as of rig

ht, the De

fendant challen ges: (1) th e adequacy of the bill of

particu lars, (2) the constitutionality of the delay between the commission of the offenses and the disclosure to authorities, (3) the trial court’sdenia l of hi s requ est fo r a chan ge of venue and motion

to excuse a j uror for

cause, a nd (4) the sufficie ncy of the ev idence. Becau se the evidenc e is insuff

icient to s upport two

of the ag grava

ted sexual

battery convicti ons, those convictions a re reve

rsed and dismissed. The rema

ining co nvictions are reversed a nd the ca se is remanded for a re trial on th ose char

ges be cause th

e trial c ourt fail ed to req

uire the State toelect

the offense s on which

it relied to support

the convi ctions.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court Reversed; Remanded

D AV ID H. W ELLES , J., delivered the opinion of the court, in which J OE G. R ILEY and A LAN E. G LENN , JJ., joined.
James D. Purple, Chattanooga, Tennessee, for the appe llant, Art Mayse.

Paul G. Summers, Attorney Gene ral andReporter; Helena Walton Yarbrough, Assistant Attorney Genera l; William Paul P

hillips, Dis trict Atto

rney Genera l; and John G. Galloway, Assistant District Attorney Gene

ral, for the appellee, State of Tennessee

. OPINION

The Defendant, Art May se, was charged by the Fentress County G

rand Jury in a tw enty-count indictmentwith fifteen counts of rape of a child, Class A felonies, a nd five cou nts of aggravated sexual battery, Class B f

e l onies. Two of the counts of aggra vated sexual battery we

re dismissed prior to trial. At t

he close of the State’s case, four counts of child rape we re modified to aggravate d1 It is the policy of this Court to refer to victims in child sexual ab use cases by their initials.
-2- sexual battery as a

r esult of th

e Defe ndant’s m otion for a direc ted verd

ict. The j ury

subseque ntly convictedthe Defendant of eleve n count s of child rape and seven counts of ag gravated sexual ba tt er y. The trial court ordered an effective sentence of fifty years. I n this appeal as of right, the Defendant

raises four primary

issues: (1) whether the bill of pa rticular s s ufficiently informe d the Defendant

of the charges ag ainst him, (2) whether the delay in time between the commission of the offenses and the di sclosure to law enf

orceme nt author ities v iolated the Defendant’s right to due process , (3) whether the trial court prope r ly denied the De

fendant’s request for a chang e of venue and motion to excuse a juror for cause due to pretri al publici ty, and (4) whe ther the evidence presented at trial was sufficient to support his eighteen co nv ictions for child rape and agg ravated
se xu al ba tt er y.
The proof established that the Defendant became the pastor of the Round Mountain Church in 1992. The victim, T.J., 1 and her family were members of the

church at that

time. The Defendant lived only three houses f

rom the victim and her family, a nd the families became clos e friends. It came to the attention of T.J.’s mother that a teenage boy had been sexually abusing T.J. when she
was seven y

ears old . T.J.’s mother deci ded to discuss the problem w ith her pr eacher , the Def

endant. The Defendant arrange d a meeting be tw ee n t he vi ct im ’s pa re nt s a nd th e p ar en ts of th e b oy. T.J.’s mother testified that the Defendant told her that “ninety -nine percent of children that aremolested, that they either

become street walkers, whores or prostitutes, and that if [she] wou ld let [the victim] be with him and let him ground her, that may be she would grow out of it.”
Shortly after this the victim began spending a lot of time with the Defendant. She stayed at his house, the

y sa ng tog ether, a

nd she helped him

do chores. The victim testified that beginning in Aprilof 1993, the Defendant began touching her chest and vagina. At

the time, the victim was nine yearsold. One o f the fir st instanc es occur red while T.J. was vis i ting th e Defendant’s house. She fell asleep o n his c ouch whi le she wa s watchin g television. The Defend ant car

ried T.J. in

to his bedroom, unfaste

ned her s horts, an d placed his hand in

her pant s. T.J. pretended to be asle ep while the Defendant put

his fingers into her vagina. Neither T.J. nor the Defendant said any thing during the episode. The Defendant aga in touched the victim at his office at the Round Mountain Church. He had picked her up from sch ool beca use she w as not fe eling w ell, and s he fell asleep on the couch in his office. The Defendant shut the door, came ove r to the couch, put his hand in the vic ti m’s pants, and inserted

his fingers into her vagina. The Defendant stopped touching T.J. when he hear d her grandmother coming up the stairs to his office. T.J. testified that she did not tell her grandmother
or anyone e lse what had happened because she “ didn’tthink anybody would bel

ieve [her ] because he was the preacher.”

T.J. testifi ed that the Defe ndant touc

hed her a gain after she had

helped him and her

family stack firewood. She was riding with the Defendant back to his house to unload the fire wood when he stopped the vehicle, unfastened her pants, and beg an to uching her. She pretended to be aslee p while he place d his fing ers inside her vagina. The

victim als o descri

bed tw o instan ces where the Defendant

carried her into his garag e that he had remodeled into a bedroom after she had beenasleep-3-

on his couch. On each of these two occasions, the Defe ndant pulled down T.J.’s pants and inserted his finger s into her

vagina . She also t

estified that ther e was a time when she was to spend the night at the Defendant’s house. After she fe ll asleep on the couc h, t he Defe ndant ca rried T. J. into his wife’s bedroom w

hile his wi fe was a

way . Whilethey were

in his wife’s bedroom, the Defendant put his fingers inside the victim’s vagina. Also, T.J. testified that the De fendant touched her once on his couch while h is wife was in the kitchen. T.J. and the Defendant were sitting on his couc h watching a movie. He told his wife to get covers for T.J. After his wife put the cove rs over T.J. and went back into the kitchen, the Defendant put his hand down T.J.’s pants and touched her pubic area. However, the victim testified that on thisoccasio n the Def endant di d not penet

rate he r vagin a with his fing ers.
The Defend ant also

touched the victim while he was at her f amily ’s house. He had c ome to their hous e to talk to T.J.’ s parents, and she was ly ing on the couch with her head in his lap. Her family was in the room, but T.J. was lying under neath covers. The Defendant put his fing ers inside her vagina under the covers. The victim also described an occurrence where she and her mother and brother had been at the De fendant’s house. T.J. was lying on the Defendant’s couch, and he put
covers over her. T.J.’s mothe r and bro ther the

n left the Defend ant’s hou se, and he place d his fingers inside T.J.’s vagina.

In October of 1994, the Defendant left the Round Mountain Church and became the pastor for the L ighthous e New Beginning Church. The victim and her family also left Round Mountain and began attending Lighthouse New B eginning. On one occasion, the hea t was not working at the new church. The victim and her brother accompanied the De fendant to a back room

where there wa s a wood sto ve. The

Def end ant told T.J. and her brother to lie down in that room. After the victim’s brother fell asleep, the Defendant put his fin ge rs i nsi de h er v ag ina . T. J. also described how she and the Defendant had sung religious song s together. Often they would practice at the church buil ding. She testified that on the way home from on e of these p ractices, the Defendant placed his fing ers inside her vagina while they were in his truck. T.J. testified that she never said any thing about what the Defendant was doing to her bec ause she “was too scared.”

While the Defendant was pastor of the Lighthouse New B eginning Church, he also worked at night cleaning a laundromat. From time to time, T.J. and her brother would help him. On the way home from the laundromat, the Defendant told T.J. to lie down and go to sleep. When she did, he touched her pubic area. She testified that this happened three times, but that on these occasions, he did not penetrate h

er vag ina with hi s finge

rs.
The victim also testified that between worship services, she would sometimes spend Sunday afternoons at the Defendant’s house. On one Sun dayafternoon, the victim fell asleep on the Defendant’s couch. The Defendant carried her into his bedroom, whe re he removed her clothes. He then placed h

is finge rs inside h

er vag in a. He e xpl ained to T.J . that “he was helpi ng her ch ange clothes for the next service.”2 Th e D efend ant did not testify at trial. We note that t he tri al t ook place prior to our supr eme cour t’ s opi nion in M omo n v. State , 18 S.W .3d 1 52 ( Te nn. 19 99) . W hile the requirements set forth in Momon are not retroacti ve, the procedures wi ll be a pplicabl e at any retr ial of the case.
-4- T.J. testifie d that the

last time she remembered the Defendant touching her was after she and the Defend ant had been to the g rocery store. Th

ey put the g roceri es away

at his h ouse an d went outside to build

a snowman. When they ca me back inside, they dr

ank hot chocolate together. After this, T.J. cover ed up and went to sleep on the D efenda nt’s couc h. The De

fendant then plac ed his fingers inside her vagina.

Around January of

1995, for reasons unrelated to the abu se of T.J., t

he victim a

nd her fa mily left Lighthouse New Beg

inning Ch urch and returne d to Round Mountain Chu rch. T.J. d

id not tell anyone about the abuse un til March of 1999, a

pproximate

ly f our years af

ter the la st

occurrence. T.J.
saw a video at church about girls being sexually abused, and she became very upset. At

that point, she told her mother what the Defendant had done to her. When the prosecutor asked why she had nottold any

one ear lier, sh e respo nded, “B ecause he was the preac

her at ou r church and he w as a friendan d e ve ryb od y t rusted hi m and I trusted him, and I didn’t think that nobody would believe me.”
Tracey

Robertson, a family nurse clinical specialist, testifi ed that she p erformed a pelvic examination on T.J. on March 29, 1999. She discovered that T.J.’s hymen wa s notintact. She stated that her findings were consistent with the kind of abuse that the victim had a lleged. However, she acknowledged

that other factors could have caused the condition and that

there was no way

to know exactly when the dama

ge occurred.

In his defense, the Defendant offered the testimony of his wife, to whom he had been

married for thirty -six y ears. She expressed her disbelief that any of the accusations against her husband we re true. 2

The Defendant first argues that the bill of particulars failed to sufficiently inform him of

the charges against him. Rule 7 of the Te nn essee Rules of Criminal Procedure provides that upon a defendant’s motion , “the cou rt may direct th e filing of a bill of

particu lars so a s to adequ ately identify the offe nse charg ed.” “T

he purpo se of the bill of particulars is to provide information about the details of

the char ge whe n necess ary

for a defendant

to prepa re his or her def ense, to a void prejudicial surprise

at trial, and to enable

the defendant to preserve a plea of double jeopardy.” State

v. Speck , 944 S.W.2d 598, 600 (Tenn. 1997). “Information that may be required in the bill of particulars includes, but is not limited to, details a s to the nature, date, or location of the offense.” Id.

The Tennessee Supreme Court has directly addressed the issue of

the utilization of a bill of particulars in child sexual abuse cases, in whichthe victim, and therefore the prosecution, is unable to determine the specific dates on which the alleg ed abuse occurred. See State v. Byrd , 820 S.W.2d 739, 741-42 (Tenn. 1991). The court noted that when a child is too you ng to re member e xact date s,3 Count one li sts the dat e as betwe en July 1992 and September 1993; count t wo lis ts t he date as between July 1992 and Octobe r 1994.
-5- “the child may

be able t o define the time of

the offe nse by refe

rence to such memorable occasions in a child’s life as birthdays, seasona l celebrations and holiday s, the beginning or end of the school year, or visitation by relatives.” Id. at 742. However, even if the prosecution is unable to offer exact dates or even t

he appro ximate time of

the alleged offense by

means of descriptive reference , “a conviction may never

theless be affirmed if in the course of the trial it does not appear that the defendant’s defense has been hampered by the lack of specificity.” Id. We must examine the Defendant’s allegations with these strictures in mind.

The Defendant was initially charged wi th fifte en counts of child rape and five counts of aggravated

sexual battery. Two of

the aggr avated s exual batte

ry counts we

re dismiss ed prior

to trial. With the excep ti ons of counts one and two, each of the counts lists the approximate date of the offense as between July of 1992 and F ebruary of 1995. 3 The Defendant filed a motion for a bill of particulars requesting information regar ding the time and place of each alleg ed offense. The prosecution responded by filing a bill of par

ticulars . Althoug

h the pros ecution w as large lyunable to provide more specific

dates, the bill does describe with particularity the location where each of the remainin g eighteen co unts occu rred an d the cir

cumstanc es surroundi ng each offense. For example, count

two was alleged to have occurr ed in the Defendant’s office at the first c hurch he pastored after he picked T.J. up from school, count four was alleged to have occurre d in a truck at the Defendant’s residence at a time whe n T.J. was helping the Defendant stack firewood, count ten
was allege d to have occurred in a back room of the second church

at a time when the heating sy stem
was not wo rking, count s elev en thr ough thirteen wer e al leg ed t

o ha ve o ccu rre d at a ti me w hen

T.J. had been helping the

Defend ant clea

n the laun dromat, and count fifteen was alleged to have oc curred at the Defendant’s residence af ter he and T.J. had built a snowman.

The Advisory

Commission Comments to Tennessee Rule of Criminal Procedure 7(c) make it clear that a bill of particulars is not to be used by a def

endant as a broad discovery device. See also Statev. Stephenson , 878 S.W.2d 530, 539 (Ten n. 1994). “The tes tin passing on a motion

for a bill of particu lars is whether it i s necess ary that the d

efenda nt have th e informa tio n soug ht in orde

r to preparehis defense and to avoid prejudicial surprise.” Id. When the prosecutor’s bill of particulars is viewed in this light, it is clear that the Defe ndant wa s apprai sed of the charg es in

such a way

that he was able

to prepa re his defense a

nd avoid unfair su

rprise at trial. The Defendant knew where the offenses were a

lleged to have oc curred , the cir

cumstanc es surrounding th e offen ses, the span of

time in which the

y a lleged ly o ccurre d, and the

nature o f the sexua

l contac t a lleged by

the victim. The Defendant

has failed to show how his defense would have been diff erent ha d he known the exact dates of the alleged offenses. I n other words, the Defendant has fa iled to show that he suffered prejudice because of the lack of specific dates. Therefore, this issue is without merit.

The Defend ant also a

rgues t hat his right

to due process was violated bythe approximate fouryear delay betwee n the time o f the off

enses and the disc losure by the victim

. The Defendant relies upon cas es that conc ern the f resh com plaint doc trine. Hi s relianc e is mispla ced. The

fresh-6-

complaint doctrine traditionally “a llowed a vi ct ims’s out-of-court statements regarding a sexual offense to be introduced at

trial to c orrobor

ate the victim’s in-court testimony.” State v. Speck , 944 S.W.2d 598, 601 (Tenn. 1997) (citations omitted). However, in theinstant case, there is no out-ofcourt statemen t at issue. The is sue is w hether the delay in time between the occurrence of the offenses and the victim’s disclosure of the offenses dep rived the D efendant of his right to due process

.
A delay between the time of the offense and the time of formal accusation “may occur in such
a manner that the defendant’s Fifth Amendment right to due process . . . is violated.” State v. Baker , 614 S.W.2d 352, 354 (Tenn. 1981); see also U.S. v. Lovasco , 431 U.S. 783, 789, 97 S. Ct. 2044, 52 L. Ed. 2d 752 (1977 ); State v. Gray , 917 S.W.2d 668, 671 (Tenn. 1996). “In de termining whether pre-accusatorial

delay violates due pr

ocess, the trial court must consider the length of the delay , the
reason for the delay , and the degree of prejudice, if a ny, to the accused.” Gray , 917 S.W.2d at 673. In this case, the Defendant has failed to show that the four-y ear delay was not for a legitimate reason. He has also failed to demonstrate prejudice. With respect to the require ment th at the Defendant show prejudice, he has failed to demonstrate that but for the delay the outco me of the

case would have been different or even that his defense would have been different. Further more, he has failed to demonstrate that

the delay was the product of malevolence on the part of the pr osecution or the victim. When the victim was asked on direct examination why she delaye d in disclosing the criminal
ac ti vi ty, T.J. replie d, “[b]eca use he wa s the pre acher a

t our chur ch and he was a friend and every

body trusted him and I

trusted h im, and I didn’t thin

k that nobo dy w ould belie ve me.” T .J. fin ally tol d what the Defendant had done to her after she watched a

video at church about the sexual abuse of young girls. The video upset T.J., and she told h er mother what hadgone on ye ars bef ore. This Courthas considered several instances in which a video or television pr ogram

causes c hildren to
come forwar d and disc lose the fact that they have been sexually a

bused. See State v. John Farmer , No. 88-282-II

I, 1989 Tenn. Crim. App. L EXIS 798, at *3 (Nashv ille , Nov. 17, 1989) (vi ctim disclosed sexual abuse by her f ather after she viewed

sitcom encouraging children to re port instances of sexual abu se); State v. Glen D. Alcorn , No. 88-195-II I, 1989 Tenn. Crim. App. L EXIS 452, at *4 (Nashville, June 7, 1989) (victim reported abuse to her mother after watc hing a children’s television program dealing with the su

bject of child sexual abuse); State v. Dennis Richard Carr , No . 88 -49 -III, 198 8 Te nn. Cri m. App . LEX IS 667, at *2 (Nashville, Nov. 1, 1988) (victim reported sexual abu se af ter watching a film at school). The Defenda nt has failed to show that the delay in this case was the product o f imprope

r motives. For that reason and because he failed to show any pr

ejudice caused by the dela y, w e canno t conclud

e that the approxima

te four-ye ar time span between the allege d acts and the f iling of charg es violated the Def

endant’ s due proc ess rights.
Next, the Defendant contends that the trial court erred b y denying his r eques ts for a change of venue and to excuse for cause a juror who had been exposed to pretrial publicity re garding the Defend ant. The dec ision of wh ether to grant a request fo r a change of venue is lef t to the sound discretion of the trial court and will not be reversed on appea l absent an affirmative

and clea r abuse of that discretion. See State v. Vann , 976 S.W.2d 9 3, 114 (Te nn. 1998) ; Statev. Bates , 804 S.W.2d 868, 877 (Ten

n. 1991). Further

more, the Defend ant must

demonstrate that the jurors were biased
or prejudiced against him before his convictions will be overturne d on appeal. See State v. Melson ,-7-

638 S.W.2d 342, 361 (Tenn. 1982). “The test is whether the jurors who actually sa

t and rendered verdict s were prejudiced

by the pretria

l publicity.” State v. Crenshaw , 64 S.W.3d 374, 386 (Tenn. Crim. App. 2001) (citation omitted).

In this case , the Def

endant ha s failed t

o demonstr

ate that t he juror s who sat o n his trial were biased or prejudiced against him as a result of the alleg ed pretrial publicity. The record contains no
ev i dence of any par

ticular pretrial publicity. The only refe rences to pretrial publicity are in the Defendant’s motion for

a chang e of venu e and in hi s brief. There is no evidence in the record regarding the nature of

the publicity, its content, the deg ree to which the publicity pe rmeated the area from which the venire was dr awn, or t he ti me lapse between the publicity and trial. See State v. Hoover , 594 S.W.2d 743, 746 (Tenn. Crim. App. 1980) (listing factors to be considered regarding
a request for a change of

venue). “In the absence of a complete recor d, we must presume that the trial court correctly

denied the motion for a change of venue .” Crenshaw , 64 S.W.3d at 387. Accord ingly , this issue

is without me

rit.
Likewise, we find n o rever sibleerror as a result of the trial court’s dec ision to not excuse for
cause a juror named Mr. Upchurch, who allegedly had heard from someone at work that “there had be en a case ag ainst [the Defendant] somewhere else.” The details reg arding the ty pe of case, the f inal outcome, and when it had occurred were not disclosed. After the Defendant challeng ed t h e juror for cause based upon the workplace conversation, the following colloquy took place:

The Court: Mr. Upchurch, y ou say that y ou heard certain conversations that took place at work. Is that something that ma y — that mak

es y ou unfair
or impartial at this — o r partial at this time? Do you recall the
convers ati on? Wit hout revealing what you heard, do you r ecall the substance of that conversation? Juror: Yes. The Court: All right. Do you understand tha t — that what you will hear he re in the courtro om is the ev

idence, to — that — e

ither for or aga inst Mr. May se, do y

ou under stand tha

t? Juror: Yes. The Court : And the courtroom — the public opinion is not the place that that is to be trie d, is that r

ight? Juror: Yes. The Court : Are you say ing that you c an exclude what you ha ve heard at

your work place? Juror: Yes. The Court: And listen to the evi dence th at y ou hear in the courtroom, and listen to the legal instructions that I will g ive at the conclusi on of the t rial, and retu rn a fai r and impa

rtial ver dict solel y on that? Juror: Yes, sir.-8-

The Court: Without any reg ard to what you he ard? When I say — “without

any regard to what you have he ard at work[,]” what you have just alluded to? Juror: Yes. The Court : Deny

you r reque st.

There is no evidence that any of the jurors who actually heard and decided

the case, including Mr. Upchurch, were unfair or par tial.

Jurors need not be totally ignorant of the facts or the subject matter of the ca se on which they sit. Even the forma tion of an op in io n o n t he me ri ts wi ll no t d is qu al if y a juror if she can lay

aside her opinion and render a verdict base d on the evidence present ed in cour t.

Statev. Hu mp hr eys , 70 S.W.3d 752, 765-66 (Tenn. Crim. App. 2001). The dec ision of wh ether to
excuse a juror f or cause is subject to an abuse of discretion standard of appellate review. See State
v. Kilburn , 782 S.W.2d 199, 203 (Tenn. Crim. App. 1989). There has been no such abuse of discreti on in this c ase, and this issue i s, therefore, w ithout mer it.

Fi na ll y, the Defendant argues that the evidence was insufficient to support his convictions for child ra pe and a ggra vated se xual batter

y. Tenness ee Ru le of Appellate Procedure 13(e) prescribes that “[f]ind

ings of g uilt in cri minal act

ions wheth

er by the trial court or jury shallbe set aside if the evidence i s insuffic ient to sup port the f indings b y the trier o f fact o f guil t beyond a reasona ble doubt.” Evidence is sufficient if, after reviewing the e

vidence in the lig ht most fav orable to the prosecution, any

rational trier of fact could have found the esse ntial ele

ments of th

e crime beyond a reasonable doubt. See Jackson v. V irginia , 443 U.S. 307, 319 (1979); State v. Smith , 24 S.W.3d 274, 278 (Tenn. 2000). In addition, because c onviction by a trier of f act destroys the presumption of innocence and imposes a presum ption of g uilt, a convicted criminal defendant bears the burden of

showing that the e vidence was insuf ficient. See McBee

v. State , 372 S.W.2d 173, 176 (Tenn. 1963); see also Statev. Buggs , 995 S.W.2d 102, 105-06 (Tenn. 1999); State v. Evans , 838 S.W.2d 185, 191 (Tenn. 1992); State v. Tu ggle , 639 S.W.2d 913, 914 (Tenn. 1982).

In its review of the e

vidence , an appe

llate cou rt must af ford the State “the strong est leg itimate view of the evidence a s well as a ll reason able and

legitim ate infer ences that may be drawn therefrom.” Tuggl e , 639 S.W.2d at 914; see also Smith , 24 S.W.3d at 279. The court may not “re

weigh or re-eva luate the evidenc e” in

the record below. Evans , 838 S.W.2d a t 191; see also Buggs , 995 S.W.2d at 105. Like wise, sh oul d the reviewing court find particular c onflicts in the trial te st im on y, the court must resolve them i n favor of the jury verdict or trial court judgment. See Tuggl e , 639 S.W.2d at 914. Al l questions involving the credibility of witnesse s, the weight and value to be given the evidence, and all fact ual issue s are re solved by

the trier of fact , not the a

ppellate courts. See State v. Mo

rris , 24 S.W.3d 788, 795 (Ten n. 2000); State v. Pappas , 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987).-9-

In this case , the Def

endant w as convicted of el even counts of child rape and seven counts of aggravated

sexual battery. “Rape of a c hild is the unlawful sexual penetration of a victim by the defendant or the defendant by

a victim, if such victim is less than thirteen (13) y ears of age.” Tenn. Code Ann. § 39-13-522(a). Sexual penetration is defined in pertinent part as any intrusion, however slight, of any par

tof a person’s body into the ge nital or anal openings of the victim. See Tenn. Code Ann. § 39-13-501(7). “Aggra vated sexual battery is unlawf ul sexua l contact with a victim by the defenda nt” where the victim is less than thirteen y ears old. Tenn. Code Ann. § 39 -13-504(a)(4)

. “‘Sexual contac t’ includes the intentional touching of the victim’s . . . intimate parts, or the intentional touching of the clothing covering the immediate are a of the victim’s . . . intimate p arts, if that intentional touching can

be reasonably

construed as being for the purpose of se xual arousal or gratification.” Tenn. Code Ann. § 39-13-501( 6).

The Defendant argues that the testimony of T.J., which was the only direct evidence offered by the prosecution tha

t the Def endant di d commit the of fenses, was insuf

ficient t o support h

is convicti ons for child

rape and aggr

avated sexual battery

. He argues that because the testimony of T.J. was uncorroborated, be cause she did not resist or seek help, and because she waited approxima

tely four yea rs before disclosing the offenses, her te stimony was not credible. As we have already stated, appellate courts do not resolve issues rega rding the credibility

of witnesses. See Morris , 24 S.W.3d at 795. Obviously the jury credited the testimony of T .J . and conv icted the Defendant

of child ra pe an d a ggr av at ed se xu al ba tt er y. This Court may not re-we igh the evidence relied upon by the jury

. See Evans , 838 S.W.2d a t 191. Rather we a

re const rained t o determin e whether, in t he lig ht most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime bey ond a reasonable doubt. See Jackson v. V irginia , 443 U.S. at 319.

We must conclude that the record before us does not support all of the Def endant’s convicti ons. From our review of the evidence, it appe ars that T.J. testified to only four instances of aggravated

sexual battery. With respect to the other three counts , it appears that the following colloquy formed th

e basis f or the convictions :

Prosecutor: O f

course, you ha

ve told us about incidences where he touched y ou butdidn’t ac tually

put his fingers inside of y ou. Were there any incidences — other

incidenc es at his house where he did that during this period of time? T.J.: Not

that I can rem emb er. It

was lots of times that it was in the living
room. Prosecutor: At his house? T.J.: Yes. Prosecutor: You can’ t remembe r any specific details? T.J.: No. Prosecutor: Is that w hat you are saying? T.J.: Yes.-10-

Prosecutor: Ok ay. Was there a first time that it happened there — whenever that
was — T.J.: Yes, it wa s — Prosecutor: And how many times did that happen, whe re he just touched y ou at his house? T.J.: About three or four times. Prosecutor: Now, whe re did tha t normally

occur a t? T.J.: On the couch in the living r oom. This testimonyis insufficient to support a finding bey ond a reasonable doubt that on three distinct and separa

te occasions the Defendant committed aggr avated sexual battery

against T.J. However,
as addressed later

in this opinion, the victim testified to one occ urrenc e of chil d rape in

addition to the eleven that were charg ed. This testimony could support a conviction for a ggravated sexual batt er y. As for the

other two

battery convicti ons, ther

e is not suf

ficient e vidence in the re cord to support them. Therefore, two of the convictions for aggrava

ted sexual battery must be reve rsed and dismissed.

Related to the sufficiency of the evidence i s anot her argument advanced by the Defendant in his brief but not

distinctly present ed as a se parate issue for our revi ew. I

n his arguments regarding the bill of particulars and the sufficiency of the evidence, the Defend an t discusses his right to a unanim ous ju ry v er di ct an d t he fa il ur e o f t he St at e t o e le ct of fe ns es . T he ri gh t t o j ur y unanimit y requires that the jury be unanimous as to the specific act which the

defendant committed upon which their judgmen t rests. See Stat e v. Ho dge , 989 S.W.2d 717, 720 (Tenn. Crim. App. 1998); State v. Brown , 823 S.W.2d 576, 582 (Tenn. Crim. App. 1991). A trial court has the duty of requiring the Stateto elect the particular act upon which it relies for conviction and to instruct the jury so that the verdict of all jurors will be united as to one offense. See Burlison v. State , 501 S. W.2d 80 1, 804 (Tenn. 1973). As our supreme court has reitera ted,

the prosecu

tion must el ect the f

acts upon which it is relying to e stablish the charged offense if evidence is introduced at trial indicating that the defe ndant has committed multiple offense s again st the vict im. The el ection r

equirem ent safeguard s the defendant’s state co nst itu tional right to a unanimous jury ve rdict by ensuring

that jurors deliberate and render a ve rdict based on the same evidence.

Statev. Johnson , 53 S.W.3d 62 8, 630-31 (Tenn. 2 001). When th e St ate presents proof on many offenses within an alleged time period, but neglects ele ction, the jury is imprope

rly allowed to “reach into the brimming bag of offenses and pull out one for each count.” Tidwell v. State , 922 S.W.2d 497, 501 (Tenn. 1996). From our t h orough review o f the re cord, it a ppears t hat beca use the Sta

te failedto elect offenses, the risk of a “patchwor k verdict” existed that demands our attention. State
v. Shelton , 851 S.W.2d 134, 137 (Tenn. 1993). Failure of the State to elect offenses when the proof requires an election is plain erro r. See State v. Walton , 958 S.W.2d 724, 727 (Tenn. 1997). “Moreover, absent an election, an appellate court revie wing the legal sufficiency of the evidencecan hardly be c onfident that it has discharged its function properly .” Tidwell , 922 S.W.2d at 501.-11-

As we have already

noted, the Defendant

was initially

charg ed with fi fteen c ounts of child rape and five

counts of aggravated sexual battery . Two of the aggrava ted sexual battery counts wer e dismissed prior to trial. Therefore, the prosecution’s bill of particular s contained a total of eighteen counts. Howeve

r, afte r the State rested it s case a

t trial, f our of the counts of rape were

reduced, upon the Defendant’s motion, to aggravated sexual battery . The Defendant was convicted on all count s as charged: eleven counts of child ra pe and seven counts of agg ravated sexual battery . However, basedon our review of

the rec ord, the v

ictim testi fied totwelve instances of child rape and only four instances of sexual abuse without penetration. To further complicate and confuse the matter, as the prosecutor

summ arize d the t estim ony of T.J . for t he jur y during cl osin g argu ment, h e recounted thir teen i nstances of rape, seven of ag gravated sexual battery , and one occurrence that he did not classify as either rape or

battery. This litany

by the prosec

utor in which he reminded the jury of the victim’s testimony

is the only

portion of

the rec ord that r

esemble s an atte

mpt at ele ction, an d it clearly does not guard against a ver dict that is not unanimous . Furthe rmore, th e jury instructi ons did notinform the jury of the State’s duty to elec t or connect the eighteen counts char ged with any particular sexual conduct.

There should be no question that the unanimity of twelve juror s is requir ed in criminal cases under our state constitution. A defendant’s rig ht to a unanimous jury before conviction re quire s the trial court to take precautions to ensure that the jury deliberates over the particular charg ed offense, instead of creating a “patchwork verdict” based on different offense s in evidence.

State v. Kendrick , 38 S.W.3d 566, 568 (Tenn. 2001) (citations omitted).

While it is apparent from our review of the rec ord that th

e State wa s aware

of its duty

to elect, at no time did t he trial court take precautions to ensure that the jury deliberated over particular offense s for ea

ch count r

ather th an crea

ting a pa tchwork verdict

. We find not

hing in the rec ord to indicate that the jury was made

aware of the

bill of particulars in which the State attempted to narrow the circumstances of each count. The trial judg e instructed the jury tha tthe Defendant

was charged with eleven co unts of ra pe of a child and se

ven coun ts of ag grava

ted sexual

battery . He th e n instructed on the elements of these two crimes. There was no instruction concerning the e lection of the facts upon which the State relied to support the offense charged in each c ount of the indictmen

t.

We are una

ble to conclude

that the f ailure to elect with respec t to the ele ven cha rged c ounts of ch il d r ap e o r t he se ve n c ha rg ed co un ts of ag gr av at ed se xu al ba tt er y wa s h ar ml es s b eyo nd a reasona ble doubt. By our c ount, the victim testified to twelve instances of rape, and the prosecutor mentioned thirteen d uring closing argument. There wa s no testimony as to two of the counts of aggravated

se xu al ba tt er y, but the jury convicted the D efendant of all seven. We cannot be cert ain that a ll the ju rors were deliberating on the same occurrences. See Tidwell , 922 S.W.2d at 501. Ob vi ou sl y, the jury believed tha t the Defendant raped T.J. on numerou s occasions. However, we simply cannot allow the “patchwork” theory of justice that our supreme court has rejected. There must be a unanimous jury

verdict on each

of the el even counts of ch ild rape . Accor

dingly , we must-12-

revers e the Defendant’s eleven convictions for rape of a child and the remaining five convictions for aggr avated s exual batte

ry and rema nd these c harge s for a ne

w trial.

The result of

cases su ch as this is all the more unfortunate because it is easily preventable. The appella

te court s have re peatedly he ld that the State must elect between multiple offenses and have repeatedly

emphasized that trial judges must ensure that election is properly made. See State v. Brown , 992 S.W.2d 3 89 (Tenn . 1999); Statev. Walton , 958 S.W.2d 72 4 (Tenn. 1997); Tidwell
v. State , 922 S.W.2d 4 97 (Tenn . 1997); State v. Shel ton , 851 S.W.2d 13 4 (Tenn. 1993); State v. Brown , 762 S.W.2d 135 (Tenn. 1988) . “As our cases have made cry stal clear, the prosecution’s failure to elect was an error that was ‘fundamental, immediately touching [upon] the constitutional rights of [the] accused.’” State v. Kendrick , 38 S.W.3d 566, 569 (Tenn. 2001) ( quoting Burlison v. State , 501 S.W.2d 801, 804 (Tenn. 1973)). It has been almost three full decades since Burlison was decided.

The two convictions for aggrava ted sexual battery

for which there was insufficient evidence
are reversed and dismissed. The eleven convictions for child rape and the r emaining five convictions for aggravated sexual

battery ar e reversed, and the charg es are remanded for retria l on those charge s.
The Defendant has raised no i ssue regarding lesser inc luded offenses. We note from the record that the trial court charged the jury with no lesser included of fen ses to the charges in the indictmen t. Failure of the tri al court

to charg e a le sser included o ffense may be plain error. See Statev. Williams , 977 S.W.2d 101, 110 n.6 (Tenn. 1998). Because we have concluded that

all the Defend ant’ s convictions must be reversed because of the fa ilure to elect offenses, we see no nee d to analyze or addr

ess in detail the issue of lesser included offenses. We point out, however, that a trial judge at the time this case was tried had the oblig ation tocharge lesser included off enses when warranted even in the absence of a request by the Defendant. Se e S tate v. Langf ord , 994 S.W.2d 126, 128 (Tenn. 1999). At the retrialof this case, the trial judg e and the attorne ys m ust give some thought to and address the issue of lesser included offenses as it relates to the evidence presented at retrial

. See State v. Burns , 6 S.W.3d 453, 466-67 (Tenn. 1999 ); State v. Elkins , 83 S.W.3d 706 (Tenn. 2002); State v. A l len , 69 S.W.3d 18 1 (Tenn. 2002); State v. El y , 48 S.W.3d 710 (Tenn. 2001); State v. Swindle , 30 S.W.3d 289 ( Tenn. 200 0); State v. Dominy , 6 S.W.3d 472 (Tenn. 1999); Statev. Steven Lee Whitehead , No. W2 002 -00 484 -CC A-R M-C D, 2 002 Ten n. C rim . Ap p. LE XIS 543 (Jackson, June 27, 2002).

Accord ingly , the judgment of the trial court is reversed. This case is remanded for a

ne w trial.

___________________________________ DAVID H. WEL

LES, JUDGE