# FILED
April 28, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE SUPREME COURT OF TENNESSEE AT JACKSON

FOR PUBLICA

TION Filed: April 28,

1997 STATE OF TENNESSEE, ) ) Appellee, ) SHELBY CRIMINAL

) ) Vs. ) HON. L. T. LAFFERTY , JUDGE ) ) BARRY L. SPECK, ) No. 02-S-01-96 01-CR-00001 ) Appellant. )

For Appellant: For Appellee: C. Anne Tipton John Knox Walkup Memphis, Tennessee Attorney General & Repor ter A. C. Wharton, Jr. Michael E. Moore Public Defender Solicitor General Walker Gwinn Gordon W. Smith Assistant Public Defender Associate Solicitor Gener al Memphis, Tennessee Nashville, Tennessee At Trial: John W. Pierotti B. Alan Newport District Attorney General Assistant Public Defender Memphis, Tennessee Jennifer Nichols Assistant District A

ttorney General Memphis, Tennessee



## O P I N I O N

AFFIRMED. ANDERSON, J.1 In fair ness to the t rial judge, t his case was tried pr ior to ou r decisi on in Livingst on , and the trial judge correct ly appl ied the t hen-existi ng law to t his case.
-2- We granted this appeal to review two issues: first, w hether the bill of particulars sufficiently

informed the defendant of the charges agai nst him, and second, whether rever

sible error was c

ommitted when the trial cour t, applying the “fresh complaint” doctri ne, ruled that the victi m’s out-of-court statements to his mother regarding s

exual acts committed by the defendant were admissible to corroborate his in-cour t testimony.
The Court of Criminal Appeals c oncluded that the defendant failed to show he was prejudi ced by the prosecution’s bill of particulars and that the victim’s out-of-court statements were admissibl e under the fresh complaint doctrine. The court, therefore, affirmed the defendant’s conviction for aggravated rape of a v ictim who was les

s than thirteen years of ag e.
We agree that the defendant was not prejudiced w hen the prosecution elected an offense that occurred on a date that differed from the specific dates set forth in the bill of particulars. With respect to the admissibility of the victim’s out-of-court statements, this C ourt held in State v. Livingst on , 907 S.W.2d 392 (Tenn. 1995), that the doctrine of “ fresh complaint” does not apply in child sexual abuse cases. 1 Accordingly, although we find that admission of the victim’s outof-court statements was err or, we conclude that the er ror was harmless in light of the victim’s trial testimony and the overwhelming evidence of the defendant’s guilt. Tenn. R. App. P. 36( b). Accordingly, while we employ somewhat different reasoning, we affirm the judgment of the Court of Crimina l Appeals.-3- BACKGROUND The victim’s proof is summar ized as follows: The v

ictim was in the second grade when he met the d efendant, Barry Speck. With the permission of his mother, he began spending time with Speck wat

ching movies, play

ing baseball and putt-putt golf, and attending scouting ev ents. During the thir

d and fourth grades, the victi m occasionally spent the ni ght with the defendant and slept with him on a couch.

Near the end of the victim’s fourth grade school year, and during the summer of 1991, Speck started touching the victim’s penis. The behavior escalated to mutual touching, and Speck and the victim mastur bated one another. Although the victim was “confused” by the sexual acts, Speck told him not to tell anyone what was occurring because he would be “locked up in prison.”

During the fifth grade, and th e summer of 1992, the victim stay ed with the defendant three or four nights per week. Speck began comm itting acts of fellatio on the victim, and eventual ly, he asked the vic tim to perform fellatio on him. Although he “didn’t feel ri ght about it,” the vic tim complied because Speck acted “real cold and mean” if he refused. The victim’s mother became c oncerned about the time the victim w as spending with Speck and initially placed limits. Speck’s response was anger and hurt. Later, in August of 1992, the moth er told the victim he could no long er see the defendant. The victim r esponded by telling his mother about the sexual acts committed by Speck.
Tamara Carly, a friend of the victim’s mother, testified that she initially thought Speck was lik

e a “big brother” to the

victim. After observ

ing Speck and the victim in the summer of 1992, she began to think that th e defendant’s public behavior in touching an d hugging the vic tim was excessiv

e and inappropriate.-4- After Speck was arrested, he left several taped telephone me ssages on Carly’s answering machine in which he professed his love for the victim and his distress over the charges. Ac

cording to Carly,he also left several audio tapes containing messages for the victim. In one message, Speck stated that the love between he and the victim was n ot “perverted” and that “had [he] known [he] was going to be accused of being pervert ed, [he] would have found another kid.” In another tape, Speck described how he would spread his legs while urinating to allow the victim to urinate from behin d him at the same time. Finally, Speck also said that he “was the only person who knew how many hairs the victim had on his testicles.”
The defendant, Barry Speck, testified and admitted a close relationship with the victim, but

denied that he had committed sexual acts. He acknowledg ed that the victim often staye d overnight at his apar

tment, but denied that any sexual acts were c

ommitted. The defendant admitted leaving the phone messages and tape recordin gs with Tam ara Carly.

BILL OF PARTICULARS The indictment alleged that the offense of ag gravated rape was committed between July 1, 1990, and July 31, 1992. In re sponse to the defendant’s motion for a bill of partic ulars, the prosecution suppl ied the following information: The victim, [M.W.], whose birth date is June 12, 1981, alleges that between July 1, 199 0 and July 31, 199 2, the defen dant did engage the victim in repeated acts of fellatio whereby the defendan t would perform the act on the victim and the victim would perform the act upon the defendant. Additionally, the defendant engaged the victim in masturbation w hereby the defendant would mastur bate the victim and the vic

tim would masturbate the defendant. These acts occurred repeatedly between July 1, 1990 and J uly 31, 1992, including on or about J une 12, 1992 and on or about June-5- 29, 1992. Said acts occurred at the defendan t’s residence and in the defendant’s car.

At trial, the victi m testified that numerous sexual acts consisting of mutual touching and masturbation w ere committed beginning near the end of his fourth grade year in 1991. H e also testified that, beginni ng in the fifth grade, the defendant committed acts of f ellatio upon him and that he performed f ellatio upon the defendant. These acts continued thr ough the summer of 1992.
In order to protect the defendant’s right to a unanimous jury verdict under article I, section 6 of the Tennes see Constitution, the trial court, at the close of the State’s proof, ordered the prosecution to elect a single offense upon which it sought the aggravat

ed rape conviction. See State v. Shelton , 851 S.W.2d 134 (Tenn. 1993). The prosecution elec ted to predicate the aggr avated rape conviction on the first i ncident in which the v ictim committed fellatio at the defendant’s apartment. The incident occurred between August of 1991 and May of 1992, when the victim w as in the fifth grade.
The defendant maintains on appeal that the pros ecution’s bill of particulars did not prov ide sufficient information about the char ged offense. Moreover, the defendant argu es that he was misled w hen the prosecution predicated the offense on an incident that did not occur on either June 12, 1992, or June 29, 1992, the specific dates provided in the bill of pa rticulars. The Court of Criminal Appeals held that the defendant failed to show that he w as prejudiced by the prosecution’s election of a date that dif fered from the specific dates set forth in the bill of par ticulars. We agree.
The rules provide that upon a defendant’s mot ion, “the court may direct the filing of a bill of particulars so as to adequately identify the off ense charged.” Tenn. R. Crim. P. 7(c). The purpose of the bill of particular s is to provide-6- information about the details of the char ge when necessary for a defendant to prepare his or her defense, to av oid prejudicial surpr

ise at trial, and to enable the defendant to preserve a plea of double jeopardy. Information that may be required in the bill of particulars includes, but is not limited to, details as to the nature, time, date, or locati on of the offense. See State v. Byrd , 820 S.W.2d 739, 741-42 (Tenn. 1991).
Although a court should make ev ery effort to see that the prosecution supplies critical information in the bill of particulars, we have observed that in cases involving child sexual abuse, the prosecution may be unable to supply specific dates on which alleged offenses occurred. In such cases, however, where the victim i s too young to recall specific dates, “the child may be able to define the time of the offense by reference to su ch memorable occasions in a child’s life as birthday

s, seasonal celebrations and holidays, the beginning or end of the school year, or visitations by relatives.” State v. Shelton , 851 S.W.2d at 137; State v. Byrd , 820 S.W.2d at 741-42. If the State is truly unable to provide even an ap proximat e time or d ate of th e offen se by mean s of a des criptive reference, “a conviction may nonetheless be affirme d if in the course of trial it does not appear that the defendant’s defense has been hampered by the lack of specificity.” Id . We explained in Byrd that it is only by post hoc

examination of the matter that the c ourt will be able to determine whether deficiencies in the bill of particulars prevented the defendant from preparing an adequate defense, caused undue and prejudicial s urprise, or made untenable a l ater plea of double jeopardy. In other words, the trial co urt cannot determine whether or not the defendant has be en hampered in his defense until the court knows what proof the state wil l offer as to time and place of the offense, and how this evidence relates to the actual theory of defense.
Id . at 741. In this case, the trial j udge found that additional information was necessary to assist the defendant in preparing for tri al, and correctly or dered the2 Our cases indicat e that t he defendant i s protected f rom being placed in jeopar dy for any similar offenses committed duri ng the enti re time peri od charge d in the indictm ent, i.e., July 1, 1990 to July 31, 199 2. State v. Byrd , 820 S.W.2d at 742, n.1 (c iting, State v. Anderson , 748 S.W.2d 201, 204 (Tenn. Crim . App. 1985)). -7- prosecution to supplement the sk eletal charge contained i n the indictment. The prosecution supplied detail s with regard to the nature of the sexual acts, the locations in which the

acts occurred, and the rang e of time, including dates on which acts may hav

e occurred. The defendant does not arg ue that the particul ars were ina dequate to preser ve a plea ag ainst dou ble jeopa rdy. 2 Instead, he contends that he was prejudiced at trial w

hen the State failed to adhere to the two specific da tes set forth in the bill of par ticulars. We disagree.
Preliminarily, we observe that the trial judge’s painstaking effort to ensure that the prosecution complied with its duty to elect a single offense successf ully narrowed the time frame of the offense. We also observ e that there is no indication in the record that the prosecution intentional ly sought to mislead th e defense. Although the State listed two specific dates in the bill of particulars, it did not limit the offenses to those two days; to the contrary, the bill of pa rticulars stressed that the offenses were ongoing. When the victim testified at trial that numerous offenses occurred during a time frame that encompassed the June of 1992 dates set forth in the bill of particulars, the prosecuti on elected to proceed on an offense described in the victim’s testimony by reference to h is grade in school and summer vacations.This procedure was enti rely consistent w ith that prescrib ed by State v. Shelton , supra , and State v. Byrd , supra .
Moreover, the defendant failed to s how either during or after trial that he was prejudiced by the prosecution’s election o f an offense that occurred on a day that differed from the dates in the b ill of particulars. The defendant categorically deni ed the charges, and there is no indication that he was misled or prejudiced by the State’s bill of particulars. F

or instance, the defendant did not present an alibi defense for the specific dates in June of 1992, nor did h e offer-8- any other defense geared tow ard those specific dates. Simi larly, the defendant did not offer any defenses post-tri al that he would have us ed at trial were it not for the specific dates set forth in the bill of particulars. Accordingly, w e conclude that the defendant has failed to show that he was prejudiced in his defense at trial.

FRESH COMPLAINT The fresh complaint doctrine as appl ied in Tennessee traditionall y allowed a victim’s out-of-cour

t statements regarding a sexual offense to be introduced at trial to corroborate the victim’s in-court testimony. See Phillips v. State , 28 Tenn. 246 (1848); Carroll v. State , 212 Tenn. 464, 370 S.W.2d 523, 528 (1963); State v. Dies , 829 S.W.2d 706 (Te nn. Crim. App. 1991). Under Phillips , the fact of a victim’s complaint, as well as the details, was admissible during the prosecution’s case in chief. 28 Tenn. at 251.

The doctrine evolved from an “ expectation” that the v

ictim would make an “immediate outcry” follow ing a sexual offense. State v. Kendricks , 891 S.W.2d 597, 600-601 (Tenn. 1994). As w e discussed in Kendricks : Because juries were al lowed -- sometimes ev en instructed -- to draw negative infere nces from the [victim’s] fail ure to complain after an assault [citation omitted], the doctrine of ‘fresh complaint’ evolved as a means of counterb alancing these negativ

e inferences. Used in this way, the ‘fresh complaint’ doctri ne allowed the prosecutor to introduce, dur ing the case in chief, ev idence that the victim had complained soon after the rape. Its use thereby forestalled the inference that the v ictim’s silence was

inconsistent with her present formal co mplaint of rape.
Id . at 601. Although we r ecognized that any “

expectation” that a vi ctim of sexual abuse should react in a presc ribed manner is fundamentally flaw ed, we retained a modified form of the doctrine in cases where the victim is an adult: in such cases, the fact of the victim’s complaint is admissible during the prosecu tion’s-9- case in chief, but the details of the incident are not admissible unless and until the credibility of the v

ictim is attacked. Id . at 603.

In State v. Livingst

on , 907 S.W.2d 392 (Tenn. 1995), we revisited the fresh complaint doctrine as applied in cases where the victim is a child. In so doing, we distingu ished the rationale whi ch led us to retain the modified doc trine in Kendricks : Retention of the fresh complaint doctrine in case s involving adult victims of sexual offenses furni shes no justification for ex tending the rule to cases invol

ving child vic

tims. The expectation that ‘normal’ women wil l complain after a sexual offense, i f ever applicable to anyone, is c ertainly not applicabl e to child victims of sexual offenses. . . . [U]nlike the presumptions r egarding adult vic

tims, juries do not necessaril

y presume t hat childre n fabricate, nor do they presume that a child will c

omplain immediately. Hav ing reluctantly r

etained the doctrine of fresh complai nt in the fact o f its many shortc omings in cases involving adult victims, we cannot reach the same result for child victims. The historic premises w hich supported our retention of the rule in adult v ictim cases simply do not support the application of the doctrine in child victim cases

. Id . at 394-95 (emphasis added). While abandoning the fresh complaint doctrine in such cases, we rec

ognized that many out-of-court statements made by the victim, such as prior

consistent statements, exc ited utterances, and statements made for medical diagnosis and tr eatment, will still

be admissible under the existing rules of ev

idence. Id . at 394.
Having held that the fresh complaint doctrine is no longer applicable in cases where the victim is a child, it follows that the admission of the victim’s statement to his mother pursuant to the doctrine was error. The ne xt question is whether the admission of these s tatements constitutes rever sible error. The statements made by the victim to his mother were brief, contained f ew details, and were accompanied by a limiting instructi on to the jury. By c ontrast, the victim’s testimony

at trial clearly described his relationsh ip with the defendant-10- over a period of years, as well as the nature an d extent of the sexual acts committed by the defendant. The jury obviously accredi

ted this testimony over the defendant’s blanket denials of wrongdoing. Moreover, when the victim’s testimony is coupled with the remaining evidence of guilt and the record as a whole, we do not find that the admission of the victim’s out-of-court statement more probably than not affected the jur y or prejudiced the judi cial process. Tenn. R. App. P. 36(b).

CONCLUSION We conclude that the defendant was sufficiently i nformed of the charges against him and was not prejudiced by the prosecution’s election of an of fense occurring on a date other than the specific dates set out i n the bill of particulars. We also conclude that the admission of the vic tim’s out-of-court statements t o his mother constituted error, but it was not rev ersible error because of the overwhelming evidence of the defendant’s guilt. The Court of Criminal App eals’ judgment upholding the conv iction for aggravate

d rape is affirmed.

________________________________ E. RILEY ANDERSON, JUSTICE
Concur: Birch, C.J. Drowota and Reid, JJ.