### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE STATE OF TENNESSEE v. CLYDE HAMBRICK, JR.
Direct Appeal from the Criminal Court for Unicoi County

No. 4214, Arden L. Hill, Judge

No. E1998-00893-CCA-R3-CD - Decided June 27, 2000

The defendant was sentenced to forty-eight years, eleven months, and twenty-nine days

as a Range I standard offender after a jury verdict was returned against him on four

counts of aggravated sexual battery, four counts of sexual battery, and eight counts of assault. These convictions are reversed because of the failure to s

ever the trials; t

he erroneous ad

missio n of evidence of othe r crimes, wrongs, or acts; the failure to properly elect offenses; the err oneous charge to the jury that aggravated

sexual battery is

a lesser include

d offense of rap

e; and plain

error as to the assault convictions. We remand for new trial as to victim C., an d the defenda nt may stand trial for eight counts of sexual battery. As to victim J., the statute of limitations bars retrial for the eight counts of assault.

Tenn. R. App. P. 3 Appeal as of Rig ht ; Judgment of the C riminal Court Reve

rsed and Remanded

W ILLIAM S , J., delivered the opinion of the court, in which T IPTON and G LENN , JJ., joined.

Deborah Black Hu

skins, Johnson City, Te

nnessee, for the

appellant, Clyde H

ambrick, Jr., at t

rial. Gerald L. Gulley, Jr., Knoxville, Tennessee, for the appellant, Clyde Hambrick, Jr., on appeal.

Paul G. Summers, Attorney General & Reporter, Marvin S. Blair, Jr., Assistant Attorney General, Joe C. Crumley, Jr., Dist rict Att orney General, and Kenneth Carson Baldwin, Assistant District Attorney, for the appellee, State of Tennessee.

OPINION

The defendant, Clyde Hambrick, Jr., appeals from his Unicoi County c onvictions of four counts of aggravated

sexual battery, four

counts of sexual battery, and eight counts of assault. After
a jury trial, the trial co

urt sentenced the

defendant to for

ty-eight y ears, eleven mon

ths, and twe ntynine days as a Rang e I sta ndard offender. From these convictions and sentences the defendant appeals, assert

ing that: (1) the trial cour

t erroneously

denied his motion to s

ever offenses; (2) the trial court er

roneously a

llowed into

evidence other

crimes, wrongs , or-2- acts; (3) the state fai

led to properly

elect offenses ; (4) the trial court erroneously charged the jury as to aggravated

sexual battery as a lesser offens

e of rape; (5) the trial court erred in sentencing the defendant; and (6) cumulative e

rror deprived th

e defendant of d

ue process.
After careful review, we reverse the judgment from the trial court and remand for new trial. As to v ict im C ., t he d efen dan t wi ll s tan d tr ial for eigh t co unt s of sex ual bat ter y. As to victim J., the applicable statute of limitations bars retrial.

BACKGROUND

The defendant w

as originally

charged as fo

llows: (1) Se ven counts of sexual bat tery and se

ven counts of rap

e against C., all

egedly occurring from March of 1991 through September of 1991; (2) six counts of sexual battery and six counts of rape against J., allegedly occurring from March 1991 through August 1991; and (3) one count of sexual battery against A., allegedly occurring in March of 1991.

Before the jury trial, the trial court granted the state’s motion for nolle prosequi on eleven counts: (1) three counts of sexual battery and three counts of rape against C. , allegedly occurring in July

, August, and Sept

ember of 1991; (2) two countsof sexual battery and two counts of rape against J., allegedly occurring in July and August of 1991; and (3) the sole count of se

xual battery

against A., allegedly occurring in March of 1991.

The defendant was tried on four counts of sexual battery and four counts of rape a

gainst C. and four cou nts of sexual b attery and four counts of rape against J. The jury found the defendant guilty of all four counts

of sexual battery

against C. They found the defendant not guilty of all four counts of rape against C. but guilty of the

four charged lesser included offenses of aggr avated sexual bat ter y. The jury found the defendant not guilty of

the four counts

of sexual battery

and four counts of rape again

st J. but guilty o

f all eight char

ged lesser incl

uded offenses of

assault.

FACTS

After a jury verdict, we review the evidence in the light most favorable to the state. The proof in this case established that the defendant raped and molested his stepdaughters on numerous occasions during the months of March, April, May, and June of 1991 in Unicoi County

. Testimony of Victims’ Mother1 Although the victims are no longer mino

rs, we refer to t

hem by these initial

s.

2 Although Happy Valley was in Carter County and the family lived in Unicoi County, they lived very near t

he county line; thus

the attendance i

n Carter County sch

ools.
-3- In 1980, the defendant married Conni e Taylor, wh o had three daughters from a prior relationship: A., J., and C. They first lived together in a trailer in Carter County . A. was six, J. was five, and C. was two years of age when mother marr ied the defendant. Mother worked numerous jobs throughout their marriage. The defendant often cleaned car s at home. Mother testified that they lived in over twenty different loca tions during the ma

rriage, and sh

e often found it dif

ficult to associate times and events with a specific residence. In February of 1991, the fam ily moved to Whispering Pines in Unicoi County. At that time, A. 1 was seventeen, J. was sixteen , and C. was thirteen years of age. While residing in Whispering Pines, the mother generally worked from 7:00
a.m. to approximately

4:00-6:00 p.m. A. wa

s working at the l

ocal McDonalds and attending Happy Val ley H igh S cho ol, and the rem ain ing s tep dau ghte rs a tte nde d Ha ppy V all ey El eme nta ry. 2

In May of 1991, substantial problems developed in the marriage. The defendant r efused to attend A.’s wed ding, and the relations hip between mothe

r and the defend

ant subsequently deteriorated. On or about July 10, 1991, the defendant moved out. The cou ple’s divorce became final September 3, 1991, and mother moved to Johnson Cit y. They apparently beg an a reconciliation
on o r abo ut O cto ber 3 1, 1 991 , wh en m oth er an d th e def end ant mov ed t o Wa shi ngto n Co unt y.
For financial reas

ons, A., her husba

nd Shawn, and their

child Tyler

moved in

to th e Washington County residence with mother and the defen dant. On e evening, mother overheard a heated argument from

the area occupied by her daughter’ s family. She intervened and at one point ordered Shawn to leave. As A. attempted to leave with Tyler and Sha wn, mother aske d her and Tyler to stay. During the exchange, mother asked A. what Shawn had ever done for her. A. replied, “If y ou only knew what Da ddy has been doi ng o ver the years.” Mother testified that at that point the defendant,

who had been involved

in the dispute, threatened to take custody of Tyle r from A. if she did not shut up.

Mother said that A. refused

to explain that remark. Mother asked C., and she replied, “Oh, God, Momma,” and fled up the stairs with her hands over her face. When mother later questioned the defendant a

bout the remarks,

he explained that he had

threatened to refuse to take the children to the mall if they were friendly with a Freddie Cr

um, an individual mot

her briefly

saw while separated from

the defendant. Testimony of A.
A., twenty-four years

old at the time of the

trial, was six y

ears old when her mother married the defendant. She te

stified that while r

esiding in Unicoi

County she began work

, in either February-4-

or March of 1991, at

the local McDonalds. She usually worked weekends and three or four days a week after sch

ool until 8:00 p.m.

A. testified that at o

ne point she asked

her sisters if

the defendant

was “bothering them,” and th ey replied, without elaboration, that he was. A. said that she didn’t tell her mother about the molestations because she wa s afraid of the de

fendant, who had

made threats in

the past, andshe was worried that her mother might kill the defendant and then be arrested.

A. said that after sh

e married she an

d her family

moved in with her mot

h er, fo r economic reasons, on two different occ asions, t he last one being when the family resided in Washington Cou nty. She concluded her direct testimony by addr essing the “blow-up” at that residence. Testimony of J.
J., twen ty-three years of a ge at the time of the trial, was five years old when her mother married the defendant. Sh

e lived in

Car ter County with the family, attended Happy Valley Elementary

and then Happy Valley Hig h School, and at ten years of age enjoy

ed playing

basketball and did so for the next several years. She testified that the defendant generally stayed home, where he detai led ca rs. Li k e her mother, she had difficulty

associating eve

nts and times with spe

cific residences bec

ause of the family

’s numerous reloc

ations.

J. testified that when she reached approximately ten years

of age living in Carter County, the defendant began molesting her. The defendant, complaining of a headache , would have Jason, J.’s younger stepbrother, go outside to play. He would then take J. into the bedroom, a

nd she would

start rubbing his head. Her testimony described a progressive continuation of sex ual a dvances and molestation. He first started r ubbing her leg

s and kissing her

. This lasted “[f]or a

couple of weeks.” He told her not to tell because no one would believe her and she would not see her mother or brother again.

The next stage occurred when he had her rub his pe

nis after he remo

ved it from his

clothing. Again, he warned her not to tell anyone. She testified that he told her that he , as her basketba ll coach, would let her play more if she cooperated and that would help her play better. She said that he pursued this lev

el of activities a

couple of times a w

eek for a couple

of weeks.

She testified that after a

couple of weeks, when she was “eleven, going on twelve,” he again escalated his molestation and had her perform fellatio on him. She said that he wou ld ejaculate

in her mouth and have her

spit up in the bathro

om. Finally,

when she was appr

oximately thirteen and still living in Carter County, he had intercourse with her. While molesting her, he began having her sister, C., act as a look-out while the bedroom door was closed.

She testified that the defendant engaged in either intercourse or fellatio with her at least two times every other week while they lived in Unicoi County. She said the defendant would follow the
sameroutine: (1 ) mother and A. woul d be at work, (2) h

e would complain of

headaches, (3)

C.3 The state unsuccessfully attempted to associate detail s with an assault incident; for

example, where she was living duri ng the fir st act of intercourse or when he threatened on one occasion.
-5- wou ld b e po ste d as a lo ok- out , an d (4 ) Ja son wou ld b e sen t ou t to pla y.
J. testified that whe

n C. became twelve

or th irteen years of a

ge, the defend

ant would sometimes choose C. when he had a “headache,” using

J. as the look-out. J. said that she and C. had discussed what wa

s happening to the

m. Testimony of C.

C. was twenty years of a

ge at the time of

the trial and was two years old when her mother married the defendant. She testified that at the age of seven

or ei ght, whi le l ivi ng in Car ter Cou nty, her father began recruiting her to assist wi th his “headaches.” He would complain of a headache, often telling J. to al er t him if anyone came to the house. A. and mother would both be working during this time. Jason would be instructed to go outside to play in cars or with neighbors.

C. essentially

testified as to the same progression of molestations described by her sister. She recalled one specific time

when he threate

ned that i f she ever spo ke to anyone about it she would
never see her mom, her sisters, or her bro ther agai n. She testified tha t she was approximat

ely thirteen years of a

ge when her fa

mily mov ed to Unicoi County , and she was alre

ady enga ging in intercourse with her stepfather. 3

C. testified that

after the “blow-up” at the residence in Wash

ington County

, she wrote a note to her friend at school advising her friend that her stepfather “had been messing with her” and was involved in sexual re lati ons with her. Afterwards, C. spoke with a counselor at school, who contacted the Department of Human Services.

C. estimated that she

performed fella

tio on the defenda

nt on twenty d

ifferent occa

sions in March throu gh June of 1991, but she c ould not give an e

xact number becau

se “he done it

so many times

. . . [she couldn’t] even keep up with how many times he done it.” He engaged i

n intercourse with her “more tha

n once” during e

ach of these month

s. Testimony of Step-brother

Jason’s testimony af

firmed portio

ns of th e defendant’s mo dus operandi desc

ribed by his st epsisters: his father’s asse rted headache

s and subsequent in

structions to play

outside. Jason testified that while li

vi ng in Washington County, J. and C. told him that the defendant was “messing” with them and touching them in places where a fathe r should not touch his d

aughters. Jason did not tell anyone about that discussion at that time.

Medical Testimo

ny4 This Rule addresses permissive joinder, versus mandatory joinder, in which two or more

offenses “are based upon

the same conduct and or arise from the same criminal epi

sode.” Tenn. R. Crim. P. 8(a).
-6- Dr. Daniel Earl testified that he examined C. and J. on or about February of 1993, after they
were refe rred to h im b y the Departm ent of Human Services. In part due to their age and sexual activity, he could neither confirm nor discredit any claims of sexual abuse.

Defendant’s Proof

The defendant

testified and denied either raping or sexually assaulting his stepdaughte rs. He stated that during the altercation in Washington County, he threatened to contact the Department of Human Services if his stepdaughter A. and her husband did not properly ca re for Tyler. He did not hear the exchan ge between mother and A. regarding what he had done to the stepdaug hters over the years. The following persons testified to the defendant's c haracter and h

is positive relatio

nship with his family, including his stepdaughters: Vanessa Holtsclaw (a niece o f the defendant) and her husband Jeff; James Green, a former co-wo

rker; Joshua Reife

rt, a great-ne

phew of the defe

ndant; Kimberly Johnson, the defendant’s niece; Deborah Harrison, another niece, and her husband, Sam Harrison.
ANALYSIS

In cases involving multiple sexual offenses, the state may introduce evidence of uncharged assaults if the indictments addressing the c harged offens es are not time-specific. See State v. Rickman , 876 S.W.2d 824, 829 (Tenn. 1994). The state must elect, however, which offen se s constitute the bases for potential convictions, a difficult responsibility when alleged offenses cover signific ant time s pans and involve victims, young at the time of assault, who can not remember specific dates. In addition to this election issue, the trial court in the instant case was also required to address evidentiary and severance issues, because multiple victims were involved.

Severance

W e first address the

severance issue . The defendant f aced eight counts involving al lege d offenses against C. and eight counts involving alleged offenses against J., and he asserts that the trial court erred by denying

his pretrial motion to sever those offenses. We agree. Two or more offenses may be joined if they “co

nstitute parts

of a common scheme or plan
or if they are of the same or similar character.” Tenn. R. Crim. P. 8(b). 4 Three categories of such evidence are r

ecognized: (1) distinctive designs or signature;-7-

(2) larger, continuing plan or conspiracy; a nd (3) same transaction. See State v. Hallock , 875 S.W .2d 285, 289 (Tenn. Crim. App. 1993). A d

efendant has a r

ight to sever such permi

ssively joine

d charges unle

ss the trial court d

etermines that: (1) the offenses are part of a common scheme or plan; and (2) evide nce of one

would be a

dmissible at trial f or the othe

r[s]. See Tenn. R. Crim. P. Rule 14(b)(1); Sta te v . Ho yt , 928 S.W.2d 935, 943 (Tenn. Crim. App. 1995); Hallock , 875 S.W.2d at 289 (Te nn. Crim. App. 1993) ; see also Tenn. R. Evid. 404(b).

On a motion to

sever offenses, the trial court evaluates “the facts and circumstances involved in the various crimes that are charged.” State v. Morris , 788 S.W.2d 820, 8 22 (T enn. Crim. App. 1990). The trial c

ourt must: (1) Hold a pretr ial hearing; (2) determine the relevance of evidenc e regar ding material issue, other than character; and (3) determine whether the probativevalue of suchevidence outweighs the potential for unfair prejudice. See Hoyt , 928 S.W.2d at 944. Ab sent a n abu se of discretion, this Court does not disturb a trial court’s denying a motion to sever offenses. See State v. Shirley , 6 S.W.3d 243 (Tenn. 1999). Although the defendant now asserts that the counts were not all part

of a common scheme
or plan, at the pretr

ial hearing the

defendant appa

rently ag reed to that particular prong of the test and restricted the argument to the evidentiary issue. The trial court did not specify the relevant type s of
common scheme evidence, but the state argues that the evidence qualified as both a distinctive design and as a continuing plan to victimize the stepd aug hters for sexual gr

atificat ion. We next addressthe second compon ent of the inquiry

, the admissibility

of the evidence

regarding on

e victim at a trial for the

offenses aga

inst the other victi

m.
“A common scheme or

plan for severance purposes is the same as a common scheme or plan for evidentiary purposes,” Hallock , 875 S.W.2d at 289, and the “primary issue” to be considered in
a severance case is whether the evidence of one offense w

ould be admissible

in the trial of the other if the two offenses remained severed, se e Spic er v. State , 12 S.W.3d 438, 445 (Tenn. 2000). Therefore, the crux of the i ssue is eviden tiary relevance. See State v. Moore , 6 S.W.3d 235, 239 (Tenn. 1999).

Gen eral ly, “evidence that the accused committed crimes independent of those for which he is on trial is gener

ally inadmiss

ible because

such evidence lacks relevance and invites the finder of fact to infer guilt fr

om propensi

ty.” H allock , 875 S.W.2d at 290. Un der certain cir

cumstances, however, such evidence may be relevant to pr

ove a genuinely

con tes ted iss ue o the r th an p rop ens ity. See id. Although Tennes see Rule of Eviden ce 404(b) does no

t enumerate

such circumstances, they
m ay include motive, intent, guilty knowledge, identity of the de fendant, absence of mistake o r accident, and “a

common scheme or plan for commission of two or more crimes so related to each other that proof of

one tends to establ

ish the other.” Collard v. State, 526 S.W.2d 112, 114 (Tenn.-8-

1975).

We must follow the guidance provided by two recent Tennessee Supreme Court decisions regarding whether severance was erroneously denied and wheth

er such error w

ould require rev

ersal. See Spicer , 12 S.W.3d 438; State v. Moore , 6 S.W.3d 235 (Tenn. 1999). Admission of “common scheme or plan” evidenc

e has expanded by

cir cular argum ent: The evidence is often considered releva ntand admitted “merely because it is evidence of a common scheme or plan.” Moore , 6 S.W.3d at 239 n.5 ( citing Hallock , 875 S.W.2d at 292). Admission should b e contingent on the “common sch eme or p lan ” evi den ce ad dres sin g “id ent ity, guilty know ledge, intent,

motive, to rebut
a defense of mistake or accident, or to establish some other relevant issue.” Id. (quoting Hallock , 875 S.W.2d at 292). Otherwise, “common scheme or plan” evidence becomes a conduit by which propensity evidence reaches juries. See Hallock , 875 S.W.2d at 291-92.

In Moore , the defendant was accused of committing three counts of c hild rape; one in August 1993 and two in November 1993, against one victim. See id. at 238. Neither identity nor any other genera

lly recog nized criteria fo

r admitting th

e “commo n scheme or plan” evidence was at issue, and the Supr

eme Court thus foun

d the evidence of

the August

offense inadmiss

ible in the trial for the November offenses. Therefore, the trial court erro

neously denied the defendant’s motion to sever the August offense from the indictment. See id. at 239-40.

The trial court in the instant case ru led that the evidence at issue was admissible under Tennessee Rule of

Evidence 404(b) as “a common scheme or plan for a commission of two or more crimes so related

to each other that proof of one tend[ed] to establish the other.” Identity was never
an issue; neither wa s any of the generally recognized circumstances for admitting the evidence. Therefore, the evidence regarding molestations of one victim was inadmissible at a trial for the offenses against the other, and the motion for severance was erroneously denied. Having concluded that the defendant’s motion for severance should have been granted, we
now determine if that

denial constituted reversible error. For reversal, the defendant must show that the error probably affected the judgment. Id. at 242. The recent Tennessee Supreme Court decision in Spicer compels our conc

lusion that the err

or in the instant ca

se was not harmles s . “ In most
severance cases, the line between har mless and prejudic

ial error is in

direct proportion to the degree

. . . by which proof exceeds the sta ndard required to convict.” Spicer , 12 S.W.3d at 447 (citation omitted). In Spicer , the evidence f or conviction con

sisted only

of the victim’s testimony

and medical testimonyestablishing that the victim exhibited a

physical co

ndition consistent w

ith multiple acts of penetration. Id. at 448. While ackno wledging the a

ppellate courts’ deference to jury verdicts and noting evidence sufficient to support the conviction beyond a reasonable doubt, the Supreme Court observed that the evidence “was certainly not overwhe lming.” Id.

The Spicer

court further obser

ved that open-dated indictments involving multiple victims are
usu all y, but not inherently , preju dicial b ecause the state may enter e

vidence of virtua

lly endless sexual episodes from each victim. See id. ; see also Rickman , 876 S.W.2d at 829. Such a presentation presents a “real probability” of overwhelming a jury and inducing a conviction based-9-

in great part

in perceived pro

pensity to commit offenses. See id. That probability existed in Spicer , and the consolidation of the offenses was not harmless. See id. at 449.

In Spicer , one victim testified to being raped every week, and the other

testified that she had been fondled so ofte

n that sh e had lost count. See id. at 448. Both victims testified to sexual encounters unrelated to the offen ses eventually elected by the state

. See id. The perceived pro pen sit y, in conjunction with the less than abundant evidence, led the Supreme Court to conclude that the consolidation e

rror “affirma

tively affected the outcome of

the trial.” Id. Similarly, in the instantcase, despite evidence sufficien t to sustain a conviction beyond a reasonable doubt, the evidence consisted only of the accusations by the victims and testimony by Jason to the effect that he was often sent outside to play. The jury heard a litany of ongoing offen ses fr om eac h vict im. In these circumstances,

we conclude that

it affirmatively

app ears that the jury was prejudiced by propensity evidence.
Our conclusion does, however, not bar corroboratingtestimony in th is case. For example, assuming other rules of admissibility were satisfied, one sister would not be barred

from testifying that the defen dant developed a headache, took the other sister in the bedroom with him, told the testifying sister to advise him

if anyone entered

the house, and closed the bedroom door. However, we conclude that the denial of severance was error and remand for new trial. Admissibility of Other Crimes, Wrongs, and Acts Apart from the issue of

admissibility o

f uncharged of

fenses occurri

ng within the time f

rame addressed in the indictment, the trial court admitted evidence of other incidences of sexual offenses against the two sisters, co

mmitted in Carter, U

nicoi, and Washing

ton Counties. The Carter County offenses occur

red before t

he Unicoi County offenses and began approximately five years before them. The testimony concerning sexual offense s occurring in Unicoi County addressed charge d offenses and an equal or greater number of uncharged offe nses. Any offense occu rrin g in Washington County was after the Unicoi Coun ty incidents. The trial court admitted the evidence to “tell the [victims’] st

ory.” The d

efendant asser

ts this e vidence was erroneously admitted to establish acts in conformity with the other charged offe

nses. The defendant further asserts that the trial court erred when it excluded evidence of his acquittal on substantially similar charges regarding one of the victims in Carter County.

Prior to admitting eviden

ce of other crim

es, upon request,

a tr ial cou rt m ust (1) hol d a j uryouthearing on the p

roffered evide

nce; (2) determ

ine that a material issue exists, other than conduct conforming with a characte r trait, and, upon request, state on the record that material issue, therefore, and the reasons for admitting the evidence; and (3) exclude the evidence if the probative value is outweighed by the danger of unfair pre judice. See

Tenn. R. Evid. 404(

b). In the insta

n t case, the trial co urt held

such a hearing, identified motive, intent, and common scheme or plan as the material issues, and balanced the probative value against the potential for unf

air prejudice. T

his Courtapplies an abuse of discretion standard if the trial court applie

s the required te

st. See State v. Dubose , 953 S.W.2d 645, 652 (Tenn. 1997).-10-

As discussed in our analysis of the severance issue, the evidence, althoug h suffi cient t o support guilty verdicts, was not overwhelming, and the evidence of the other crimes was extremely prejudicial. Regarding the de fenda nt's proffered evidence of acquittal, the trial court barred that evidence because

it was no t relevant, being unrelated to the instant case, and was not a fact of
co nseq uence that would have made the determination of any fact of consequenc e to the determination of the act more probable or less probable than without that evidence. See Tenn. R. Evid. 401, 402. We conclude that the trial court properly excluded reference to the a cquittals.

Election of offenses

In cases involvi ng separate incidents of sexual assault, charged in indictments that are not time-specific, “it [is] the duty of the trial judge to require the State, at the close of its proof-in-chief, to elect a particular offense of carnal knowledge upon which it wo uld rel y f or convictions, an

d to properly instruct the jury so that the verdict of every juror would be united on the one offense.” See Burlison v. State , 501 S.W.2d 801, 804 (Tenn. 1973); see also Statev. Clabo , 905 S.W.2d 197, 204 (Tenn. Crim. App. 1995). With this requirement, the Tennessee Supreme Court sought to: (1) Enable defe

ndants to prepare

defenses for spe

cific charge

s; (2) protect defendants from double jeopardy; and (3) insure unanim

ous jury ver

dicts for convict

ions. See id. at 803.

The unanimity concern is the most significant. See Statev. Shelton , 851 S.W.2d 134, 137 (Tenn. 199 3). Alt hou gh th e fed eral con sti tut ion ’s r equ ire d un ani mit y of jurors o n criminal convictions has not been extended to the states through the Fourteenth Amendment, see Apodaca
v. Oregon , 406 U.S. 404 (1972) , such unanimity is required by our state constitution, see State v. Brown , 823 S.W.2d 576, 583 (Tenn. Crim. App. 1991).

To satisfy the election requirement, the state need not prove that an off

ense was committed
on a specific date, unless that date is either an element of the crime or essential to proving that offense. See Shelton , 851 S.W.2d at 137. The Tennessee appellate courts have noted the difficulties of prosecuting cases of sexual abuse committed against small children

and have relaxed some rules of evidence and procedure in appreciation of those difficu lties. See i d. at 139. “The election doctrine only requires the State to select which of multiple offenses in evidence it relies upon to seek the conviction to ensure that the jury focuses on and is u

nanimous with respe

ct to that conviction.” Statev. Brown , 992 S.W.2d 389, 392 (Tenn. 1999). The state may t herefore remedy a victim’s inability to recall a specific date by associating t he elected incident or incidents with unique surroundi ngs or

circ umstances, such as meaningful events in the victim’s life: “[A]ny description that will identify the prosecuted offense to the jury is sufficient.” Shelton , 851 S.W.2d at 138, 139. For example, “the be ginning of s chool, a birthday, or a relative’s visit” will suffice. See id. Otherwise, “[i]f the prosecution can not identify an event for which to ask a conviction, then the court can not be assured of a unanimous decision.” Id. at 138. The unanimity requirement concerns us in the instant case. We review the indictment and5 According to the Tennessee Supreme Court, election at the conclusion of the state’s proofin-chief is the better practice: A defendant may more properly tailor his defense if he knows the events that will be deliberated as bases for convictions. See Burlison , 501 S.W.2d at 804.

6 Although the transcript

reads “ever in,” we conclude that the juror likely asked the question as presented in the above text.
-11- the elections. The

defendant was tr

ied on sixteen counts

involving two vict

ims: (a) Four counts of sexual battery and four counts of rape committed against C.; and (b) Fo ur coun ts of se xual ba ttery and fou r count s of ra pe comm itted a gains t J.

Each indictment all

eged that th

e defendant assaulted a victim “on or about” either March, April, May,

or June of 1991. Dur

ing closing ar

gument, 5 the state electe

d as follows: [T]he Stateis going to

elect the first time it occurred each month, we contend constitutes the offense of rape. . . . and the second t ime it occurred woul

d constitute the offense of sexual battery.

We note that the indictments prepared by the state read Count One, on or about March 1991, charges sexual battery and Count Two, on or about Marc h 1991, char ges rape. The potential for confusion is evident: A juror asked, “Is he saying that it’s the first or

second time it happened that month or [every time] 6 ?” The trial court responded that the election referred to the first incident for each month.

Then the trial court held a bench conference and apparently received permission from each counsel to comment on the evidence during the ins tru cti ons . Th e tr ial cou rt t hen add res sed the jur y: I am going to try and explain it. There’s four (4) charges of rape against one alleged victim and fou r (4) charges of sexual ba ttery aga inst the same alleg

ed victim. There’s four (4) charg

es of rape aga

inst the other alleg

ed victim and four (4) charges of sexual battery

against the other alleged victim. There has been testimony of two
o r thre e times a week over months. Some of you might conclude bey ond a reasonable

doubt that the first week

of the month of May

it happened. Othe

rs, well, it did the last month. So I want to make sure that all of you agree if he is guilty beyond a reasonable doubt of one incident, and because there

is evidence that there might have been many

times during the mo

nth, the State

only charged one, then they have to elect which, and all of you have to agree beyond a reasonable doubt whether that is the time. The State has chosen the first sexual contact in any month they say is going to be rape. And then you will have to determine whether or not it was. And the second sexual contact between the defendant and the alleged victim in any

month is a sexual bat ter y, and you’re–you should not consider it except as I will instruct you later about any other incident in that month but they can only find him guilty, if

at all, of one rape each month and one sexual battery each month. Now, I hope it helps a littlebit. So they have to elect. The law says if it says unspecified date–if y ou knew exactly what date it was supposed to be like the fifth of May and the fifth of July and-12-

so forth, but there is no definite date here. It’s unspecified dates and so they have

to say which incident, first or second and whatnot. Have I made myself clear.

The election and accompanying instruction by the trial court do not satisfy the unani mity requirement.In C.’s case, the jury hea

rd testimony a

lleging multiple

offenses per month against each vict im. None of these offenses, however, were identified with any more specificity, either by narrowing the relevant dat e or by foc

using the ju

ry on a par

ti cular offense associated with a meaningful event.

In a similar situation, the Tennessee Supre me Court reverse

d and remanded c

onvictions. In Statev. Tidwell , 922 S.W.2d 497, 501 (Tenn. 1996), the victim testified that various sexual activity occurred approximately once a week over fourteen months. Analogous with the inst ant case’s indictments, which charged offe nses “on or about”

a given month, t

he Tidwell

indictments charged commission of a specific offense on a “blank” day of a given month. See id. Other than two disc rete incidentsthat the vic tim des cri bed wit h pa rti cul ari ty, she could not associate a particular act with a specific time. See id. at 499. On the petitioner’s appeal from denial of post-conviction relief, the state suggested that the jury had no separate offe nses from which to choose, non-unanimity was impossible, and the state was not required to elect offense

s. The Tennessee

Su preme Court, however, disagreed

withthe state’s contention that “jury unanimity is attained in such case s because, although the jury may

not be able to distin

guish between th

e various acts,

it is certainly capable of unanimously

agreeing tha

t i t took place, the number, and the manner described.” Id. at 501. Therefore, those convictions not described with particularity were r eversed.

In the instant case, the state’s election invited the jury to pick, not necessarily as a g roup, one of several offenses for a given week, and many for a given month, and deliberate over that offense as a rape. Althou

gh the trial cour

t warned the jury

that, as a body

, they must ag

ree that an offe

nse had been proven, be

yond a rea sonable doubt, for a given week, the election and instructions provided no means for a tri

er of facts to

select an act and conclude that the act either occurre

d on or about a specific date or was assoc

iated with a give

n event. This process was repeated for the second charge, sexual battery. Compare Tidwell , 922 S.W.2d at 501. This election did not narrow the time frame below a given month. No means was prov ided the jury

“to match a speci

fic conduct to

a spec ific count.” Id. The jury was not instructed to deliberate on an offense assigned to a specific week or associated

with a specific event, and “the testimony did not distinguish one event in a given month from any other.” Id. We cannot be c omfortable wi th the reliability of the results. See id. at 502. Therefore, we find neither a proper election nor a serviceable substitute in this case.

Lesser Included Offenses The trial court charged the jury with aggrava

ted sexual battery

as a lesser inclu

ded offense of the rape charges. The state asserts that while aggra vated sexual battery is not a “lesser included” offense of rape, it is a “lesser grade” of that offense. The defendant asserts that the trial court erred because aggravated sexual

battery is not a lesser inclu

ded offense of r

ape and because

the proof did not support the charge.-13-

Under Tennessee law, offenses may be quan tified, as one off

ense being “lesser” or “greater” than another, by the legislature’s classification of offenses in Tennessee Code Annotated § 40-35- 110. This statute estab

lishes a hierarc

hy of offen

ses, from the gr

eatest to the leas

t. The legislature fu rther set s forth more seve

re punishment for

the greater of

fenses. A simple th

reshold inquiry

in determining lesser included o ffenses is to firs

t determine the cl

a ssific ation of the original charge. Offenses which carry a greater cla ssification than the origina l c harge can not b e considered as

a lesser included offense. Offenses which carry the same classification as the original charge can not be considered as a lesser included offense. Therefore, offenses that are classified the same or greater than the original charge should not be considered a lesser included offense. Only offenses which have a lesser classification than the original charge may be considered as a lesser included offense.

This simple inquiry answers the que stion pr esented on this appeal: Whether aggravated sexual battery, a

Class B felony

, is a lesser include

d offense of rap

e, also a Class Bfelony. The se two offenses carry the same classification as Class B fe lonies.
Therefore, it was error for the trial court to charge aggrava t ed sex ual battery

, a Class B fel ony, versus sexual batte ry, a Class C

felony, as a

les ser inc lud ed o ffen se t o rap e, a C las s B fe lon y. Had this been the only error committed, we would have affirmed the def endant’ s convictions on eight counts of sexual battery and remanded for resentencing. H owever, because of the additional
errors we reverse the

defendant’s co

nvictions on the fou

r counts of aggravat

e d sexual battery and remandfor new trial. We note that the state may proceed against the defendant at the new trial on eight counts of sexual battery, four counts as a result of this error and four counts as a result of errors earlier assigned.

Cumulative Error

We have identified reversible errors regarding issues of election, severance, evidence, and lesser included offense

s. Our analysis has also noted that despite sufficient evidence to convict the defendant of eight counts of sexual battery, that evidence is

not overwhelming. We conclude that
even if the convictions were not reversed on the basis of any particular a ssigned e rror, t he sum of these concerns

questions the relia

bility of the v

erdict and nece

ssitates a new tria

l.

Plain Error

This Court generall

y reviews o

nly issues presented. See

Tenn. R. App. P. 13(b). However, under limited circumstances this Court may consider an issue not formally presented. See id. ; see also Tenn. R. Crim. P. 52(b). Unde r the applicable

standard, the er

ror must constitute “plain error,” affecting a “

substantial righ

t” of the accused. See State v. Adkisson , 899 S.W.2d 626, 639 (Tenn. Crim. App. 1994). The determinative factors as regards “plain error” are : (4) the record m

ust clearly

establish what occ

urred in the trial

court; (5) a clear and unequivocal rule of law must have been breached; (6) a substantial right of the accused must have been affected;-14-

(7) the accused did not waive the issue for tactical reasons; and (8) consideration of the error is “necessary to do substantial justice.” Id. at 641-42. After careful analysis, we note that this jury trial resulted in the defendant being convicted of eight counts of assault all against vi ctim J.: Four co unts were charged to the jury as lesser included offenses of

the four indicted counts of sexual battery, and four counts were charg ed to the jury as lesser included offenses of the four indicted counts of rape

. Tennessee Code Annotated § 40-2-102 provides that “a ll pro secutions for misdemeanors shallbe commen

ced withi n twelve ( 12) months

next after the offense has been committed” and in the instant case the assaults were alleged to have occurred in 1991. The defendant was indicted on these charges on October 11, 1994.

We are obliged und

er the facts

of this case to

follow our Supreme Court’s ruling in State v. Pearson , 858 S.W.2d 879 (Tenn. 1993), which held that a convictionfor misdemeanor assault was barred by limitations in the absence of showing that the defendant knowingly a nd voluntarily waived the statute of limitations. See Pearson , 858 S.W.2d at 885-87 (Tenn. 1993).

No evidence in this r

ecord shows the de

fendant’s awar

eness of this

issue, and therefore, he could not have knowin gly and voluntarily waived any objection to the jury’s considering the misdemeanor

charges. Therefore, the eight assault convictions involving victim J. are reversed and dismissed as barred by the statute of limitations. Sentencing Issues

The defendant asserts that the trial court erred by sentencing him to the maximum range for aggravated

sex ual bat ter y and sex ual bat ter y con vic tio ns a nd b y imposing the sentences for these convictions consecutively . We briefly

address these issues. See Jacobs v. State , 450 S.W.2d 581 (Tenn. 1970). If the record affirmatively shows that the tri al cour t considered the sentencing principles and the relevant facts and circumstances, this Court reviews the imposed sentences de
novo with a presumption of correctness. See Tenn. Code Ann. § 40-35- 401(d); State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). The trial court found one e

nhancing fact

or, the defenda

nt’s abuse of a private trust, and two mitigating factors, the absence of threat of serious bodily injury and the non-statutory

factor of th

e defe ndant’s providing for the family. See Tenn. Code Ann. §§ 40-35- 113(1); -114(15). The trial court chose to give no weight to the mitigating factors, and, under the facts and circumstances of this case, we find no error in that decision.
Further, the trial court

correctly imposed consecutive sentences because the de fendant was “convi cted of two ( 2) or more statutory offenses involving sexual abuse of a minor.” See Tenn. Code Ann. § 40-35-115(b)(5). These issues are without merit.

CONCLUSION-15-

The judgment from

the trial court is reversed and remanded on eight counts of sexual battery involving victim C. The eight assault convictions involving victim J. are dismissed.