# FILED
December 23, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE OCTOBER SESSION, 1996
STATE OF TENN ESSEE, ) C.C.A. NO. 03C 01-9603-CC-00109 ) Appellee, ) ) ) SEVIER COUNTY VS. ) ) HON. REX HENRY OGLE JERRY LYNN WA

LDE, ) JUDGE

) Appellant. ) (Aggravated Sexual Battery-Direct

) Appeal)

FOR THE APPELLANT : FOR THE APPELLEE : LU ANN BALLEW JOHN KNOX WALKUP Assistant Public Defender Attorney General and Repor ter P. O. Box 416 Dandridge, TN 37725-0416 TIMOTHY F. BEHAN Assistant Attorney Gener al 450 James Robertson Parkwa y Nashville, TN 37243-0493 AL SCHMUTZER, JR. District Attorney General JAMES L. GASS Assistant District A

ttorney P. O. Box 70 Dandridge, TN 37725-0070

OPINION FILED ________________________ AFFIRMED JERRY L. SMITH, JUDGE1 It is the policy of this C ourt to refra in from referring b y name to mino r victims of sex o ffense s.

The victi m will be ref erred to by

her ini tial s. -2- 

## OPINION

A Sevier County Ci rcuit Court jury found Appellant Jerry Lyn n Walde guilty of three counts of aggravat ed sexual battery. As

a Range I standard offender, he received a sentence of elev en years for each count. The tr ial court ordered two

of the sentences served concur rently but the third ser

ved consecutively, for an effective sentence of twenty- two years in the Tenness ee Department of Correction. In this direct appeal, Appel lant presents the followi ng issues for review: (1) whether the State failed to timely pr esent his case to a grand j ury; (2) whether the State violated his right to a speedy trial; (3) whether the trial court erred in admitting his statement to authorities in its entirety; (4) w hether the trial court er red in limiting defense counsel’s voir dire of the jury; (5) whether the evidence presented at trial is legally sufficient to su stain a conviction for the January 9, 1995 aggrav ated sexual battery; (6) whether

the trial court erred i n failing to require the State to make an election as to the set of facts rel ied upon for each charged offense; and (7) whether the sentence is excessiv e.

After a review of the rec ord, we affirm the judgment of the tr ial court.

I. FACTUAL BA

CKGROUND As accred ited by the jury’s verdi ct, the pr oof sho ws that, du ring the f irst two weeks of January, 1995, J. H., 1 a ten-year-old female, w as sexually abused on three separate occasions by Appel lant, an uncle with w hom she lived. On January 12, 1995, J.H. reported the abuse to Penny Inman of the Jefferson County Department of Human Services. Referri ng to the area covered by her underwear as her “downer part,” J.H. stated that Appellant touched her “downer part” with his hands,-3-

his mouth, and his “downer part.” Later that day,Ms. Inman informed J.H.’s aunt, Appellant’s wife, of the allegations. Appellant’s w ife in turn informed Appellant.
That evening, Appellant proceeded to the Jeff erson County Sheriff’s Office and met with Detectiv

e Bud McCoig. Accordi ng to Detective McC oig, Appellant stated that he had sexually abused a girl and was there to pay for it. Hav ing waived his rights, Appellant gave the following statement: About two weeks ago, me, [J.H.], and [J.H.’s sister] were at home watching movies. [J.H.’s si ster] was in her room playing with Barbie dolls or something . Me and [J.H.], age 10, was sitting

on the couch. She was in he r nightgown. I put my hand over her. I started feeling her pri vate part on top of her clothes. A day or two later, I touch her again in her private parts. Thr

ee or four days later, I to ok my clothes off. I pulled my pants down and s he, [J.H.], pulled her pants down. I had an erection; s he just touched my penis and I touched her vagina. I j ust rubbed on the outside of her vagina. This happened ov er a period of two weeks . I done a stupid thing and now I got to pay for it.
The Jefferson County Grand Jury indicted Appellant on three c ounts of aggravated sexual

battery in violation of Tennessee Code Annotated Section 39-13- 504(a)(4). Howev

er, during the inves

tigation of the case, the State discovered that the offenses had actually been committed in Sevier County. On June 28, 1995, Appellant was properly indicted in Sevier C

ounty and the charges in Jefferson County were dismis

sed According to the indictment , Appellant committed aggravated sexual battery on January 7 and 9 and on one other unspecified date in January
On September 28, 1995, Appellant w as tried before a jury i n the Sevier County Circuit Cour

t. At trial, Appellant tes tified that he had never soug ht sexual gratification from contact with J.H. but admitted that he had wrestl ed with J.H., that he had once awoken from a nap with his hand between J.H.’s legs, and that J.H.-4-

had once made incidental contact w ith his erect penis w

hile they were w

atching television in bed. Appel lant further testified that he did not read the statement taken by Detective McCoig before he signed it and that the statement failed to accurat ely reflect what he told the detec tive. At the conclusi on of the trial, the jury found Appellant guilt y of three count s of aggravated sexu al battery. Following a sentenc ing hearin g on Novemb er 6, 1995 , the tria l court im posed an effect ive sentence of twenty-tw

o years.

II. PRESENTMENT Appellant first alleges that the State failed to timely p resent his case to a grand jury. According to the Tennessee Rules of Criminal Procedure, “[i]f there is unnecessary delay in presenting the charge to a grand jury agai nst a defendant who has been held to answer to th e trial court . . . , the court may dismiss the i ndictment . . . .” Tenn. R. Crim. P. 48(b). In reviewing a motion to dismiss for failure to timely present, the trial court must consider (1) the leng th of the delay, (2) the reas ons for the delay, (3) the prej udice to the defendant, and (4) w aiver by the defendant. State v. Benn , 713 S.W.2d 308, 311 (Tenn. 1986). The decision of whether to grant or deny such a motion lies w ithin the discretion of the tr ial court. Id. To establish a violation of due process r ights, the evidence must show that there was a delay, that the defendant was prejudiced, and that the State intentionally delayed the prosecution in order to gain a tactical advantage. United States v. Mari on , 404 U.S. 307, 324 (1971); State v. Baker , 614 S.W.2d 352, 354 (Tenn. 1981); State v. Dykes , 803 S.W.2d 250, 25 5-56 (Tenn. Crim. App. 1990).

Mindful of the factors delineated in Benn and the dictates set out in Marion , Baker , and Dykes , we look to the circumstances surrounding Appell ant’s case. The period of time between Appellant’s arrest and the presentment of his case to the appropriate grand jury

was approximately

five and a half months. The reason for2 Appellant also all eges that t he trial court fai led to comply with Rule 50 of the Tennessee Rules of Criminal Procedur e, requir

ing that defendants i n custody be gi ven preference ov

er other cri minal cases. The record, however, i s devoid of any underly ing support

for such an al legati on. Because -5- the delay is uncontested: th e State mistakenly believ ed that Appellant, who liv ed very near the county

line, committed the offenses in Jefferson C ounty. Once the error was discov

ered, the State presented Appellant’s case to the Sevier County Grand Jury and dismisse d the charges in Jefferson County. Appellant concedes that the delay was unint entional but argues that, due t o his extended period of incarceration, he was unable to effectively prepar e a defense. Appellant asserted his right to timely

presentment by filing a motion to dismiss on July 26,1995.
First and foremost, there is no evidence whatsoev er that the State intentionally delaye

d Appellant’s prosecution i n order to gain a tactic al advantage, a point conceded by Appellant. See Marion , 404 U.S. at 324; Baker , 614 S.W.2d at 354; Dykes , 803 S.W.2d at 255-56 . Moreover, Appellant fails to adequately demonstrate prejudice. See Benn , 713 S.W.2d at 311. T he record does not reflect nor does Appellant allege that defense witnesses died or moved away during

the time period between his ar rest and the presentment of his cas e to the Sevier County Grand Jury. Furthermor e, Appellant fails to specify how his incarcerati on precluded preparation of an effective defe nse. We thus conclude that the trial court properly denied Appellant’s motion to dis miss for failure to timely present the charges to the grand jury.

III . SP EED Y TRI AL Appellant next alleges that the State violated his constitutional right to a speedy trial. 2 Both the United States and the Tennes see Constitutions guarant eethe reco rd fails to su bstantiate Appellan t’s claim, w e find it withou t merit. -6- the right to a speedy tr ial. See U.S. Const. amend. VI; Tenn. Const. art. I, § 9. This right arises only

after formal accusation, either b y arrest or by g rand jury action. State v. Wood , 924 S.W.2d 342, 34 5 (Tenn. 1996). To determine if a def endant's right to a speedy tri al has been violated, a rev iewing court must co nsider the following four factors: ( 1) the length of the delay; ( 2) the reason for the delay; (3) whether the defendant asserted hi s right to a speedy tr ial; and (4) whether the defendant was prejudiced by the delay. Barker v. Wi ngo , 407 U.S. 514, 530 (1972); State v. Bishop , 493 S.W.2d 81, 83-84 (Tenn. 1973).

The first facto r, length o f the delay, serves as

a trigger

ing mechani sm, necessitating considera tion of the other three factors. Barker , 407 S.W.2d at 530. The reasonableness of the delay depends upon the complexity of the c ase. Id. at 530-31. This Court has held th at a delay of as long as tw o years, standing alone , will not support the findi ng of a speedy trial v iolation. State v. Vance , 888 S.W.2d 776, 778 (Tenn. Crim. App. 1994). Here, the length of d elay between Appellant’s arrest and his trial w

as approximately eig ht and a half months. While we do not find this dela y egregious under the circumst ances, we wi ll, for th e purpos e of revie w, consider the remaining factor s.
The second factor, reason for the delay, generally falls i nto one of four categories: (1) intentional delay to gain a t actical advantage ov

er the defense or delay designed to harass the defendant; (2) bureaucratic indifference or negligence; (3) delay necessary

to the fair and effective prosecution of the case; and (4) delay caused, or acquiesced in,by the defense. Wood , 924 S.W.2d at 346-47. Both the State and Appellant agree that there were two reaso ns for the delay. First , as discussed previously, the State originally indicted Appellant in the wrong county.-7-

Second, the victim was taken to California by her mother and had to be legally compelled to return to Tennessee to testify at trial. We believe that the first reason, although understandable giv en Appellant’s residence near the county line, falls i nto the second category described in Wood and weighs against the State although not as heavily as deli berate delay. See id. The second reason, however, falls into the third category and does not weigh against e ither party. See id.
The third factor, the defendant's asser tion of the speedy trial r ight, is entitled to strong evidentiar

y weight in deter

mining whether the ri ght has been denied, and failure to assert the rig ht will make it difficult to prove it was deni ed. Barker , 407 S.W.2d at 531-32; Bishop , 493 S.W.2d at 85. Appellant first asserted hi s speedy trial right in Jefferson County on June 16, 1995 and then again in Sevier County on July 12, 1995. This factor w eighs in favor of Appellant.
The fourth factor, whether the defendant w as prejudiced by the delay, is the most important factor. Wood , 924 S.W.2d at 348. Three interests of the defendant are to be considered: (1) pr eventing oppressiv

e pretrial confinement; (2) mi nimizing anxiety and concern that accompanies prosecution; and ( 3) limiting the possib ility that a defense will be impair ed. Barker , 407 U.S. at 532. As discusse d previous ly, Appellant fails to assert any specific impairment to his def ense. Moreover, in response to Appellant’s motion for a speedy trial, the tr ial court, in an effort to prevent oppressive pretrial confinement, reduced his bond to on e thousand dollars and ordered the case set for trial on September 25 or 27, 1995. We find that th is factor weighs heavi ly in favor of the State.
In light of the minim al length of the de lay, the ju stifiab le reason s for the delay, and, mos t importa ntly, the l ack of an y particul arized pre judice to Appellan t, we-8-

conclude that the trial court properly denied Appellant’s motion to dism iss for failure to provide a speedy tr

ial.

IV. APPELLA

NT’S STATEME NT TO AUTH ORITIES Appellant also alleges th at the trial court erred in admitting his statement to authorities in its entir

ety. Relying upon

the approximate dates giv en in his statement as compared to the dates set out i n the indictment, Appellant arg ues that the statement included references to unc harged conduct and that its admission violates Tennessee Rule of Evidence 404(b) and State v. Rickman , 876 S.W.2d 824 (Tenn. 1994).
Rule 404(b) states as follows:

(b) Other Crimes, Wrongs, or Act s.--Evidence of other crimes, wrongs, or

acts is not admissible to prove the character of a person in order to show action in conformit y with the character tr

ait. It may, howev

er, be admissible for other purposes. The conditions which must be satisfied before allowing such ev idence are: (1) The court upon request mus t hold a hearing outside the jury's pr

esence; (2) The court must determine that a material issue exists other than conduct conforming with a character trait and must upon request state on the record the material issue, the ruling, and th e reasons for admitting the ev idence; and (3) The court must exclude the evidence if its probative value is outweighed by the danger of unfair prejudice. Tenn. R. Evid. 404(b).

In Rickman , the defendant was indicted for one count of statutory rape and one count of incest, both charges arising from the same inci dent in August of 1991. 876 S.W.2d at 826 n.1. In a statement to authorities, the defendant admitted that he had engaged in vario us forms of sexual contact w ith the victim over

a period of approximately six

years. Id. at 826. The trial court ex cluded that portion of the-9-

statement in which the defendant discussed sexual conta ct with the victim before the August incident charged in the indictment. Id. However, during the State's case-in-chief, the trial court did allow the victim to testify about prior sexual contact with the defendant for the purpose of cor roboration. Id. The victim testified that th e sexual contact had begun when she was about seven years old and had eventually progressed to full sex

ual intercourse. Id. The victim estimated that s he had engaged in sexual int

ercourse with the defendant betw een twenty and thirty

times. Id. On appeal, the Tennessee Supreme Court held th at, under Rule 404(b), evidence of the defendant's sexual misconduct not charged in the indictment and not connected to any of the charges in the indictment was inadmissible in the State’s case-in-chief as i rrelevant and prejudicial. Id. at 829. This rule was bas ed upon “the recognition that such evidence easily results in a jury improperly convicting a defendant for his or her bad character or ap parent propensity or disposition to commit a cri me regardless of the streng th of the evidence concerning the offense on trial.” Id. at 828.
Appellant’s statement was given to authorities

on January 12. It begins with the reference “about two w eeks ago” and goes on to des cribe in general terms

three incidents of sexual contact with the victim ov er a period of four to six day s. The indictment alleges unlaw ful sexual contact on January 7 and 9 and on one other unspecified date in January. We first note that the inconsistency betw een Appellant’s statement and the indi ctment with regard to the dates of the unlawful contact is immaterial. This Court has previously

held that the actual date of the commission of an offense ma y be different than that charged in the indictment so long as the proof establishes that the offense occurred prior t o the finding and returning of the indictment. See State v. Chance , 778 S.W.2d 457, 462 (Tenn. Crim. App. 1989); see also State v. Perry , N o. 03 C0 1- 94 01 -C R- 00 01 6, 19 95WL 433319, at *3 (Tenn. Crim. App. Jul y 24, 1995), perm app. denied , (Tenn. Dec. 28,-10-

1995). It is undisputed that the offenses discussed in Appellant’ s statement occurred prior to the finding and returning of the indictment. Moreover, unlike in Rickman , where there was evidence of a long-term history of abuse, Appellant’s statement is limited to the same number of incidents as set out in the indictment and in no way reflects a pattern of abuse from which the jury might improperly convict him for his bad character or his apparent propensity t o commit a crime. See Rickman , 876 S.W.2d at 828. In our opinion, Appellant’s statement did not constitu te eviden ce of unc harged se xual misco nduct, a s prohibi ted by Rickman , but instead constituted evidenc e of the exact misconduct for w hich Appellant was on trial. Any inconsis

tencies between Appellant’s statement and the State’s theory of the case then become questions for reconciliation by the jury as the exclus ive trier of fact. We distinguish the case sub judice from Rickman for the foregoing reasons and find that the trial court di d not err in admitting Appel lant’s statement in its entirety.

V. VOIR DIRE Appellant alleges that the trial court erred in limiting defense counsel’s voir dire of the jury. He ar

gues that the trial cour

t improperly prohibit

ed open-ended questions designed to el icit the prospective jurors’ attitudes, feelings, biases, and prejudices as they rel ated to the case, thereby compr omising his right t

o a trial by an impartia l jury.
During voir dir

e, the following exc

hange took place: DEFENSE COUNSEL: [Y ]ou will hear [the v

ictim] say that [Appellant] touched her in some of those inappropriate places. You will also hear her say that he made her touch him in an i napprop riate pla ce on his b ody. [Prospective Juror], knowing that that’s what you are probably going to hear

from this ten-year-old g irl as part of the State’s proof, how do y ou feel about that at this point?-11- PROSPECTIVE JUROR: Well, I’ll ju st have to hear her testimony and you know, all the testimony that’ s given, then decide for myself. DEFENSE COUNSEL: Okay. I’m not sure what y ou mean exactly by “I’ll just have to hear all the testimony.” Could you go a littl e bit farther into that? THE STATE: If it please the Court, I guess I’m going to interpose an objection at least with regard to . . . the jurors expressed, I think the st andard is can they be fair and impartial. THE COURT: Approach the bench, counsel, for just a moment. [Whereupon, a ben ch conference was held on the record in the presence of the prospectiv e jurors but out of the hearing of the prospective jurors .] THE COURT: I think the natur e of your open-ended questions sort of leaves them uncertain about what you’re asking. You know, how do you feel about that. I don’t think that you can seek commitments from them as to how they’ll vote based on that. I think i t would probably be bes t if you would, you know, a

t least as to that particul ar question, I believe you asked them how they would react to that or whatever, and so he tol d you that he would just have to hear all the proof. I don’t know what more he could say. So don’t ask them open-ended questions. I believe that’s . . . DEFENSE COUNSEL: Is th at not permissible? THE COURT: It may be . . . DEFENSE COUNSEL: What I’m trying to do is elicit their personal opinion and it’s kind of hard . . . THE COURT: About what? DEFENS E COUNS EL: About the bur den of pro

of, about bias, y

ou know, w

hether they

automatical ly assume that he’s . . . THE COURT: Ask them that, ask them that instead of the open-ended questions, because they don’t know wh at you’re asking. DEFENSE CO UNSEL: Ok ay.
According to the Tennessee Rules of Criminal Procedure, the trial court “sha ll permit question ing by the parties f or the purpose o f discovering base s for challenge-12-

for cause and enabling an intelligent exercise of peremptory challenges.” Tenn . R. Crim. P. 24(a). The superv ision of voir dire re

sts within the sound dis cretion of the trial court. State v. Cazes , 875 S.W.2d 253, 262 (Tenn. 1994), cert. denied , 115 S. Ct. 743 (1995). As a result, this Court must uphold the ruling of the trial court unless the defendant establishes the exi stence of a clear abuse of that discr etion. State v. Raspberry , 875 S.W.2d 678, 68 1 (Tenn. Crim. App. 1993).

Here, the trial court ex

pressed concern that the open-end ed questions posed by defense counsel left the prospec tive jurors uncertai n as to how to respond. It appears from our reading of the record that this concern cen tered on the manner in which the questions w

ere asked, not the information the q uestions were designe d to elicit. Requiring defense counsel to ask clearer, more-pointed and understa ndable questions is not an abuse of dis cretion. We do not believe that the tri al court limited defense counsel’s ability to conduct an effective voir dire.

VI. SUFFICIENCY OF THE EVIDENCE Appellant alleges that the ev idence presented at trial is legally insufficient to sustain a conviction for the January 9, 1995 aggr avated sexual battery. He argues that neither the victim’s testimony nor his stat ement to authorities establis hes that any unlawful sexual contact occurred on January 9.
When an appeal challenges the sufficiency of the ev idence, the standard of review is w

hether, after viewing

the evidence in the lig ht most favorable to the State, any ration al trier of fa

ct could hav

e found the esse ntial elements of the cri me beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 318 (1979); State v. Evans , 838 S.W.2d 185, 19 0-91 (Tenn. 1992); Tenn. R. App. P. 13(e). On appe al, the State is entitled to the strongest legitimate view of the evidence and all reasonable or legitimate inferences which may be dr awn therefrom. State v.-13-

Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). This Court will not reweigh the evidence, re-evaluate the evidence, or substitute its evidentiary inferences for those reached by the jury. State v. Carey , 914 S.W.2d 93, 95 (Tenn. Crim. App. 1995). Furthermore, in a criminal trial, great w eight is given to the result reached by the jury. State v. Johnson , 910 S.W.2d 897, 89 9 (Tenn. Crim. App. 1995).
Once approved by the tri al court, a jury v erdict accredits the w

itnesses presented by the State and res olves all conflicts i n favor of the State. State v. Williams , 657 S.W.2d 405, 410 (Tenn. 1983). The credibility of witnesses, the weight to be given their testimony, and the reconciliation of conflicts in the proof are matters entrusted exclusi vely to the jury

as trier of fact. State v. Sheffield , 676 S.W.2d 542, 547 (Tenn. 1984). A jury’s gu ilty verdict r emoves the presumption of innocence enjoyed by the d efendant at trial and raises a pr esumption of guilt. State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982). The defendant then bears the burden of overcoming this p resumption of guilt on appeal. State v. Black , 815 S.W.2d 166, 175 (T enn. 1991).
According to the indictment , Appellant committed three acts of aggravated sexual battery upon the v ictim, one of which occurr ed on January 9. As Appell ant correctly points out, not only did the State fail to offer suff icient evidence to support its theory that Appellant committed aggravated s exual battery on Januar y 9, but the victim actually t

estified during direct ex amination that no sexual contac t occurred after January 7. Howev er, as stated previousl

y, the actual date of the commission of an offense may be different than that charged in the indictment so long as the proof establishes that the offense occur red prior to the finding and returning of the indictment. See Chance , 778 S.W.2d at 462; see also Perry , 1995 WL 433319, at *3. During her testi mony, the victim detail ed three forms of sexual contact: (1) Appellant touched her “down er part” with his h ands; (2) Appellant touched her-14-

“downer part” with his mouth; and (3) Appellant touched her “downer part” with his “downer part.” The indi ctment sets out only these th ree incidents of unlawful conduct. The fact that there is an i nconsistency between the victim’s testimony and the indictment with regard to the January 9 batter y is immaterial under the prior holdings of this Court. Therefore, we find that, when viewed in a light most favorable to the State, the ev idence is sufficient to sustain all three convictions for aggravated sexual bat tery.

VII. ELECTION Appellant alleges that trial court erred in failing to require the State to make an election as to the set of facts r elied upon for each charged offense. H e argues that J.H.’s testimony es tablished more than the three ins tances of unlawful sexual contact charged in the indi ctment.
Under Tennessee law, a defendant has a fundamental constitutional rig ht to a unanimous verdict before a co nviction for a criminal offense may be imposed. State v. Shelton , 851 S.W.2d 134, 134 (Tenn. 1993); State v. B rown , 823 S.W.2d 576, 583 (Tenn. Crim. App. 1991). Protection of this right often requires "special precautions [by the court ] to ensure that the jury deliberates over the par ticular charged offense, instead of creating a 'patchwork verdi ct' based on different offenses in evidence." Shelton , 851 S.W.2d at 134. Where there is evidence of multiple offenses, the precaution is the doctrine of election, req uiring the State to elect and identify at the end of its case-in-chief the exact of fense for which it seeks conviction. Id. ; Burlison v. State , 501 S.W.2d 801, 804 (Tenn. 1973). The Tennessee Supreme Court has made the follo wing observation: We appreciate the difficulties involved in prosecuting cases of sexual abuse committed against small children. In such cases, th e rules of evidence and the ru les of pro cedure h ave been relaxed to some extent to accommodate very you ng witnesses. Never

theless, the constitutional protections-15- guaranteed a criminal defendant, w ho is presumed by law to be innocent until proven g uilty, cannot be suspended altogether because of the vi ctim's age or relativ e inability to testify. In cases such as this one, the state must either limit the testimony of prosecuting witnesses to a sing le event, or prepare the case so that an elec tion can be made before the matter is submitted to the jur y to decide. Shelton , 851 S.W.2d at 139.
Here, the State limited the tes timony of the victim to thr ee specific incidents of unlawful sexual conduct. The victim testified that Appel lant touched her “downer part” with his hands, his mouth, and his “downer part.” With the exception of the exact timing of the incidents and the specific description of the contact, all evidence presented to the jury, i ncluding Appellant’s ow n statement and testimony, remai ned consistent with the State’s theory. Because the ev idence established only on e unlawful incident for each count in the indictment, a “patchw ork verdict” w

as not possible and election wa s therefore not necessary. See Shelton , 851 S.W.2d at 136.

VIII. SENTENCING Finally, Ap pellant alleges th at his sen tence is e xcessive. S pecific ally, Appellant argues that the trial court erred in determining the length of his sente nce and in imposing consecutive sentences.
When an appea l chall enges the length, range, or man ner of se rvice of a sentence, this Court conducts a de novo review with a presumption that the determination of the trial cour t was correct. Tenn. C ode Ann. § 40-35-401(d). However, th is presum ption of correctn ess is “con ditione d upon th e affir mative showing that the trial court in the record considered the sentencing principles and all-16-

relevant facts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). In the event that the r ecord fails to demonstrate such c onsideration, review of the se ntence is purely de novo

. Id. If appellate review reflects that the trial court properly considered all relevant factors and its findings of fact are adequa tely supported by the record, this Court must affirm the sentence. State v. Fletcher , 805 S.W.2d 785, 789 (T enn. Crim. App. 1991). In conducting a review, this Court must consider the evidence, the presentence report, the sentencing principles, the arguments of counsel, the nature an d character of the offense, mitigatin g and enhancement factors, any statements made by the defendant, and the potential for rehabilitation or treatment. State v. Holland , 860 S.W.2d 53, 60 (Tenn. Crim. App. 1993). The defendant bears the burd en of showing the impropriety of the sentence imposed. State v. Gregory , 862 S.W.2d 574, 57 8 (Tenn. Crim. App. 1993).
Appellant was convic

ted of three counts of aggrav ated sexual battery, a Class B felony. See Tenn. Code Ann. § 39-13-504(b). As a Range I standard offender convicted of a Class B felony, Appellant’s statutory sentencing range for each conviction was eight to twelve y ears. See id. § 40-35-112(a)(2). The trial court found the following enhancement factor s applicable to each convi ction: (1) the defendant has a previous history of criminal convictions or criminal behavior in addition to those necessary to establish the appropriate range; and (2) the defendant abused a position of publ ic or private trust

. Id. § 40-35-114(1), (15). The t rial court found the followi ng mitigating factor applicable to each convic tion but gave it lit

tle weight: (1) the defendant’s criminal c onduct neither caused nor threate ned serio us bodily i njury. Id. § 40-35-113(1). The trial court then imposed a mid-range sentence of eleven years for each offense, ordering two of the sentences serv ed concurrently but the-17-

third served consecutively, for an effective sentence of twenty-two years. We will address each of Appellant’s senten cing arguments in turn.

A. LENGTH OF SENTENCE Appellant first maintains that the trial court erred i n determining the length of his sentence by improperl y applying certai n enhancement factors and failing to apply certain mitigating factors.

In the ab sence of enhance ment and mitigatin g factors , the pres umptive length of sentence for a Class B , C, D, and E felony is the minimum sentence in the statutory range w

hile the presumptive leng th of sentence for a Class A felony is the midpoint in the statutory range. Tenn. Code Ann. § 40-35-2 10(c). Where one or more enhancement factors apply but n o mitigating factors ex ist, the trial court may sentence above the presumptiv e sentence but still wi

thin the range. Id. § 40-35- 210(d). Where both enha ncement and mitigating factors apply, the trial court must start at the minimum sentence, enhanc e the sentence within the r ange as appropriate to the enhancement factors , and then reduce the sentence w ithin the range as appropriate to the mitigating factors. Id. § 40-35-210(e). The weig ht afforded an enhancement or mitigating factor is left to the discretion of the trial court so long as the trial co urt complies with the pu rposes and principles of the Tennessee Criminal Sentencing Reform Act of 1989 and its findings are supported by the record. State v. Hayes , 899 S.W.2d 175, 18 5 (Tenn. Crim. App. 1995).

1. PREVIOUS CRIMINAL HISTORY Appellant argues that the tr ial court improperly

applied enhancement factor (1), concerning his p revious criminal hi story. Appellant concedesthat his presentence report reveals two convictions for driving under the influence of an intoxicant, a convic

tion for driving w

ith a suspended license, and a c onviction for-18-

speeding but argues that th ese offenses cannot be considered under en hancement factor (1) because they are dissimilar to his current offenses. However, nothing in the Sentencing Act requi res that prior convi ctions be similar in natur e to the conviction in questi on. Moreover, this C ourt has previously

allowed consideration of such driving-rel ated offenses when applying en hancement factor (1). See, e.g. , State v. Ruane , 912 S.W.2d 766, 784 (Tenn. Crim. App. 1995)(dri ving with a revoked license); State v. Miller, No. 01C01-9309-CR-00329, 1994 WL 236014, at *6 (Tenn. Crim. App. June 2, 1994) , perm. app. denied (Tenn. Sept. 12, 1994)(driving under

the influence of an intoxicant and driving with a revoked license); State v. Upman , No. 03C01-9402-CR-00052, 1994 WL 396355, at *5 (Tenn. Crim. App. Aug. 2, 1994) (speeding); State v. Hurt , No. 01C01-9306-CC-00189, 1993 WL 503713, at *3 (Tenn. Cr im. App. Dec. 9, 1993)(speeding); State v. Boswell , No. 2, 1991 WL 2866, at *1 (Tenn. Crim. App. Jan. 16, 1991)(driving

with a suspended licens e and speeding). Thus, we conclude that the trial court’s app lication of enhancement factor (1) w as proper.

2. NEITHER CAUSED NOR THREATENED SERIOUS BODILY HARM Appellant argues that the trial court should have applied mitigating factor (1), providing that “[t]h e defendant’s conduct neither caused nor threatened serious bodily injury.” It is apparent from the record that the trial court did apply this mitigating factor but chos e to give it littl e weight, stating “serious bodily inj ury did not occur here. There’s no doubt about that. You know, I w ill give him some benefit

. . . .” As stated previously, the weight afforded a mitigating factor is left to the discretion of the trial cour t so long as it complies with the purposes and pri nciples of the Sentencing Act and its findi ngs are supported by the record. See Hayes , 899 S.W.2d at 185. W e do not believe that the trial court has abused its discretion in this area and thus decline to afford any more weight to this mitigating factor.-19- 3. NON-STATUTORY MITIGATING FA CTORS Finally, Appellant ar

gues that the trial cour

t should have considered other non-statutory mitigating factors pursuant to Tennessee Code Annotated Section 40- 35-113(13). Specifically, Appellant points to the fact that he turned himself in and gave a statement to the author ities. While Appellant did voluntar ily make a statement to authorities, he subs equently denied its acc uracy and moved to exc lude it from evidence. We do not believe that Appellant’s actions war rant consideration as a mitigating factor. Even if given some marg inal weight, we do not believe that such actions justify a r

eduction in his mid-range sentence.

B. CONSECUTIVE SENTENCING Appella nt also co ntends t hat the t rial court erred in im posing co nsecutive sentences. When imposing sentences for multipl e offenses, the trial court has the discretion to order the s entences served concurr ently or consecutiv

ely. Tenn. Code Ann. § 40-20-111(a). The imposition of consecutive sentences is appropriate if the defendant has been convicted of more than on e offense and the trial court finds, by a preponderance of the evidence, one or more of the following criteria: (1) The defendant is a professional criminal who has knowingly devoted himself to criminal acts as a major source of livelihood; (2) The defendant is an offender whose r ecord of criminal activity

is extensive; (3) The defendant is a dangerous mental ly abnormal person so declared by a c ompetent psychiatrist w ho concludes as a result of an inv estigation prior to se ntencing that the defendant's criminal conduc t has been characte rized by a pa ttern of repetiti ve or comp ulsive behavior with heedles

s indifference to consequences; (4) The defendant is a dangerous off ender whose behavior indicates little or no regard for human l ife, and no hesitation about committing a crime in which the risk to human life is high; (5) The defendant is convicted of two (2) or more statutory offenses involv ing sexual abuse of a minor with consideration of the aggrav ating circumstances arising from the relationship between the defendant and victim or victims, the time span of defendant’s undetected sex ual activity, the nature and scope of the sexual ac ts and the extent of the-20- residual, physical an d mental damage to the victi m or victims; (6) The defendant is sentenced for an offense committed while on probation; or (7) The defendant is sentenced for cri minal contempt. Tenn. Code Ann. § 40-35-115(b).

Here, the trial cour t relied u pon subs ection (5 ) in orderi ng consec utive sentences. Appellant argues that this reliance is misplaced because of the shortterm nature of the abuse. Howev er, the time-span of the undetected unl awful conduct is but one considerati on under subsection (5). The r emaining considerations include the relationship between the de fendant and the victim, the nature and scope of the sexual ac ts, and the extent of the residual, physical and mental damage to the victim. See Tenn. Code Ann. § 40-35-115(b)(5 ). In accordance with the statute, the trial court made the foll owing findings: (1) Appellant was the victim’s uncle, resided with her, and, along with his wife, was responsibl e for her care; (2) the offenses inv olved three different forms of unlaw ful contact, including an incident w here Appellant lay nude in the bed with the victi m; and (3) the victim suffers from some residual mental problem s. In light of these findings, most signific antly the relation ship betwe en Appel lant and the victim , we do not b elieve th at th e t ri al co ur

t a bu se d i ts

di sc reti on inim po si ngco ns ec ut iv e s en te nces . We further believe that consecutive sentences are necess ary to protect the publi c from Appellant’s possible future criminal conduct and that the aggregate sentence is reasonably related to the severity of Appellant’s present offenses. See State v. Woodcock , 922 S.W.2d 904, 91 5 (Tenn. Crim. App. 1995).
Accordingly, the j udgment of the trial court is affirmed.

____________________________________ JERRY L . SMI TH, J UDGE

# FILED
December 23, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk CONCUR:

___________________________________ GARY R. WADE, JUDGE

___________________________________ DAVID H. WELLES , JUD GE

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE OCTOBER 19 96 SESS ION

STATE OF TENNESSEE, * C.C.A. # 03C01-9603-CC-00109 Appellee, * SEVIER COUNTY VS. * Hon. Rex Henry Ogle, Judge JERRY LYNN WALDE, * (Aggravated Sexual Battery-3 Counts) Appe llant. *-22- DISSE NTING OP INI ON I concur wi th the resul ts as to t he defendant' s first , second, fourth, fift h and seventh i ssues. I agr ee with the resoluti on of the th ird iss ue (Section IV), but disagree as to the rati onale. I dissent, however, based upon t he court's res olution of th e sixth issu e.

I.

In his t hird iss ue, the defend ant argued that the tri al court er red by not pe rmitting him to redac t his statem ent prior to its a dmiss ion in evide nce. The ma jority di sti ngui shes

thi s ca se f rom State v. Rickman , 876 S.W.2d 824 (Tenn . 1994), to c onclud e that the d efenda nt's statem ent is adm issible in its entiret y. I agr ee that the statement i s admissible in its entiret y, but see no reason to di stingui sh Rickman from the fact s here, part icularly as to whether these incide nts sh owed a patte rn of ab use th at wou ld lead a jury to im prope rly convict the defend ant.

In Rickman , the indict ment charged unlawful contact on August 11. Rickman's statement as to unl awful contac t before August

11 was redacted because i t was "wholly independent f rom the sex cri me for which t he defendant was i ndicted."The supreme court ci ted to Bunch v. State , 605 S.W.2d 227, 229 (Tenn. 1980), for the gener al rule: It is well established, of course, that in a criminal trial evi dence th at t he defen dant has commi tt ed s ome other cri me wholly i ndependent of that fo r which he is char ged, eve n th ough it

is a cr ime of t he s ame-23- chara cter, is u sually n ot adm issible b ecau se it is irrelevant. Id. , 876 S.W.2d at 827 (emphasis added). The court

in Rickman affirmed the special r ule arti culated i n State v. Shelton , 851 S.W .2d 134 (Te nn. 1993), which allowed evidence of other sex crimes

when [the] i ndictment i s not ti me specific and when the evid ence relates to sex c rimes that alle gedly occurred duri ng the time as char ged in the indict ment. In such cas es, the State must elect at the close of

its proof-in-chi ef as to t he particul ar incident fo r which a conviction is being so ught. Id. at 829.

Recently, our supreme court, after r eview of Rul es 401, 402, and 404(b), Tenn. R. Evid., determined that the standard of appell ate revi ew, after the tri al court ha d allowed evi dence of rel evant pri or bad acts, is abuse of discretion so long a s the trial cou rt comp lied with the proced ural requ iremen ts of the rules

. State v. James DuBose , No. 01S 01-960 2-CC -00029 , slip op. at 7 (Tenn ., at Nash ville, Sept. 29 , 1997). H ere, the trial jud ge hea rd argum ents outside the presence of the j ury on the defendant's pre-t rial motion to r edact his statement. The foll owing appears i n the record:

THE COUR T: Well, he says here that thi s happened over a peri od of two weeks. So I think in all candor with you t hat that wi ll have to be admissible. You know, if he's not cl ear on the time frame and as I understand the case law in r egards to the testimony of underage vi ctims, t he appellat e courts have given a lot greater leeway on t hose types of cases and those types of

victi ms obviously t han they have ot her cases. And in fact, as we know on other cases, you've got to b e pretty dogg oned spec ific. But I d on't think, at least based on his own statement, he's clear as to the tim e frame

.-24- DEFENS E COUN SEL: It's not cl ear, but the phrase "about two weeks ago" could mean as earl y as December 29th. THE COUR T: It ver

y well coul d be. DEFENSE COUNSEL: ...or possibl y a day or

two earlier. THE COUR T: And so after I hear the pr

oof, you know, it may be such that as to at least one of the coun ts it ma y not fly, I d on't kn ow. Yo u kno w, we'll see a bout th at as it co mes in, but in regard s to his statem ent, be caus e it is not c lear, yo u kno w, I don 't think i t can be redacted. Thu s, the tria l court ru led tha t the inc idents includ ed in th e defe ndan t's statement coul d have been the same inci dents for whi ch he was indicted and not, ther efore, pr ior acts. Under the appropr iate sta ndard of rev iew, that decis ion, in m y view, s hould be up held. T he inc idents in the d efend ant's statem ent are not "wh olly inde pend ent" of th e pen ding c harge s, and Rule 404(b ), Ten n. R. E vid., doe s not e xclude the inc idents as irrele vant an d und uly prejudicial prior bad acts.

II.

As to the defenda nt's si xth issue on electi on, I dis agree with t he majority of this court as to both the rat ionale and t he result. The law on election h as bee n prima rily framed by three m ajor case s. Burlison v. State , 501 S.W .2d 801 (Tenn . 1973); State v. Shelton , 851 S.W.2d 134 (Tenn. 1993); and Tidwe ll v. State , 922 S.W .2d 497 (Tenn . 1996).

In Burlison our supreme court considered a number of cases for guidance in i ts ruli ng, incl uding Jamis on v. State , 94 S.W . 675 (T enn. 19 06).-25- In Jamison , where the i ndictment char ged unlawful sexual contact on a particular d ay, the state introduce d proof o f several ac ts of unlaw ful contac t; the trial cou rt denied defend ant's mo tion for elec tion. On a ppeal the state argued that v iolati on of the age of consent law was a continuous of fense. The supreme court held as follows:

[T]he State c ould b e requ ired to e lect the spec ific offense upon whi ch a verdict of guil ty would be dema nded, fo r three fun dame ntal reaso ns. First, to enab le the d efend ant to p repar e for an d ma ke his defense to the specifi c charge; second, to protect him from double j eopardy by i ndividual izatio n of the issue, and t hird, so t hat the ju ry's ver dict may not be a matter of cho ice between offenses, som e jurors convicting on on e offense an d others, anoth er. Burlison , 501 S.W.2d at 803 (di scussing the ruling i n Jamison , which has been distinguished a nd partially overruled by Rickman on an unre lated issue).

The court in Burlison next cited Vinson v. State , 203 S.W. 338 (Tenn. 1918), and Cox v. Sta te , 270 S.W.2d 182 (Tenn. 1954). In Vinson , the defendant was indicted for vi olating the age of consent law in t he month of Septem ber. At trial, the state offered pro of of violations in July, Septem ber, and December. The defense request for an elec

tion was deni ed. The supreme court rev

ersed because the " error committed immediately touched the con stitutional righ ts of the de fendan t . . . ." Id. In Cox , the suprem e court had ruled that the purpose of el ection is so the "j ury will t hen know for which offense the State seeks a convict ion, and will all vote upon guil t or innocence for that par ticular offen se." Id.-26- After e xamin ing the rulings on ea ch of th ese c ases , the co urt in Burlison held as fo llows:

[I]t was the duty of

the tri al judge to require t he State, at the cl ose of its proof-i n-chief, to elect the parti cular offens e of ca rnal kn owled ge up on wh ich it wo uld rely for convi ction, a nd to properl y instr uct the j ury so that the verdi ct of ever

y juror would be unit ed on the one offense. Id. at 804.

In Shelton , the indi ctment charged unl awful sexualpenetrati on of one victi m and unlawful sex ual contact of two other

victi ms on or about the ___ day of ___, 19 89. The time was narr owed to Aprilthrough September of that year . In li eu of elect ion, the t rial cour t gave a speci fic i nstructi on to the jury: You cannot in your verdi ct find that the def endant committed more than one offense against each alleged vi ctim. The law r equires that

every ju ror be united on the one a lleged offens e in ea ch co unt in the indi ctment. If

you find bey

ond a reasonable doubt that there has be en mo re than o ne allege d offense to an alleged vi ctim you must i solate your verdict on the first alleged occurren ce after April 7, 1989 and before September

6, 1 989, as to eac h vi cti m. Shelton , 851 S.W.2d at 136. The supr eme court held t hat this instruct ion was an inad equate substitute for election

. Id. Citing to the three bas ic reasons for electi on, as confi rmed in Burlison , the court c onclud ed that alth ough th e "state is not requ ired to iden tify the particu lar date of th e chos en offen se ... the state must either limit the testi mony of prosecuti ng witnesses to a single event, or prepa re the c ase s o that a n elec tion ca n be m ade b efore th e ma tter is subm itted to the jury to decide

. Id. at 137, 13 9.-27- Election is particularly imp ortant in sexual ab use trials where children te stify. The su preme court disc ussed these sp ecial prob lems in its Shelton opinion:

If, for example, t he evidence i ndicates various types of abuse, t he prosecuti on may identif y a parti cular type of abuse an d elect t hat offense. Moreover, when recalli ng an assault, a child may be abl e to descri be unique surroun dings or c ircums tances that help to identify an in cident. T he child m ay be ab le to identify an as sault w ith refer ence to a m eanin gful eve nt in his or her life, su ch as the beginn ing of sch ool, a birthda y, or a re lative's vis it. Any d escrip tion tha t will identify th e pros ecute d offen se for th e jury is sufficient. In fulfilling its obligation under Burlison to ensu re that a n elec tion oc curs, th e trial co urt sho uld bear in mind that the purpos e of election is to ensu re that each juror is con sidering th e sam e occu rrence. If the prosecuti on cannot identify an event for which to ask a convi ction, t hen the court cannot be assured of a unanimous deci sion. Id. at 138.
Although the right to a unanimous verdic t is f undamental, t he failur e to elect

may be classif ied as harmless, depending on the circumstances. In Shelton , one of thr ee victi ms testif ied to a si ngle instance of partial in tercou rse on her birth day. T here w ere m ultiple in dictm ents, b ut only one charging rap e. The jury returned a gui lty ve rdict only as to one count of aggravated rape for that v ictim. The court concluded that the "jurors must have considered the evidence of this particul ar incide nt in convi cting th e defendant.. .[and] t herefore, the Burlison error.. . was harmless beyond a
reason able do ubt ...." Id. at 138. As to the s econd victim, ho wever, the cou rt found the fai lure to el ect was not har mless and reverse d the convic tion. The second vict im had testi fied to s everal occasi ons of digi tal fondl ing and did not-28- differ entiate t he events. The j ury returned a guilt y verdic t to aggrav

ated sexual b attery. Th e court ru led that the conviction could no t be uph eld due to the "natur

e of the evi dence presented on t his charge and t he Burlison error resulting fro m the s tate's failure to elect. ..." Id. at 139.

In Tidw ell , the supre me co urt stated th at lack of ce rtainty regarding the unanimity of the jury's v

erdict was the more troublesome aspect of failure to e lect:

The indictm ents as returne d contain fifty-six counts-- fourteen each of aggravat ed rape, stat utory rape, incest, an d contribu ting to the d elinquen cy of a minor. Each count

charges the commissi on of an offens e on th e "___ " day of a nam ed m onth. T hus, it is quite evid ent that the re is no ap parent m eans to dif fer ent iate amo ng v ari ous coun ts of t he s ame offense. Addi tionally, the i ndictments pr ovide no mea ns to e nable a fact-fin der to m atch a spec ific condu ct to a spe cific count.
*** Thus, a defendant's right to a unanimous verdict before imposi tion of convicti on requires t hat tri al court to take prec autions to ens ure that the jury deliberates over the par ticula r charged offense, instead of

assembling a "patchwork verdi ct" based on the d ifferent offen ses in evid ence. Id. at 500-0 1.

Here, the t hree indic

tments charge one count each of aggravated sexual battery on January 7, 9 a nd "___", 199 5. The victim testified to m ore than thre e inciden ts of such unlawfu l contact: 1. "He [defendant] put his downer part on mine [sometimes while defenda nt was wea ring clothes]." (Tr. 44). 2. "He [defendant] put his downer part on mine [sometimes while defe ndant w as not w earing clo thes]." (Tr. 4 4-45).-29- 3. Defe ndan t touch ed victim on he r "dow ner pa rt" with "h is hands" ... on top o f her clothes. (Tr. 45-4 6). 4. Defe ndan t touch ed victim on he r "dow ner pa rt" with "h is hands " ... underne ath her c lothes. (T r. 45-46). 5. Defen dant tou ched victim 's "lower pa rt" with "[h]is m outh." (Tr. 51). More troubles ome is that t he defendant acknowl edged several i ncidents of unlawful s exual contac t in ei ther his confession or his tri al testi mony. The statement of the defendant encompassed four inst ances of sexual misco nduct: 1. "I put my hand over her. I started fe[e]ling he r private part on top o f her clothe s." 2. "A day o r two la[]ter, I touc h[ed] he r again in h er private parts." 3. "Three or four days la[] ter I took my clot hes off ... she just touche d my pe []nis." 4. "I touched he r v[a]g ina... I just rubbed on the outside of her v[a]gina." ( See Exhibit

#2, Tr. 137). The majority found that the state limitedthe testimon y of the victim to three sp ecific incide nts of unla wful sexu al condu ct, and th erefor e, elec tion wa s not re quired . I cann ot agre e. W hile the victim testif ied as to t hree types of sexual contact, her testimony encompassed at least five incide nts of u nlawfu l touch ing. Mo reove r, beca use th e victim 's testimony and t he defendant' s confession differ, there were ot her incid ents the jury could h ave use d to conv ict, if they indee d accre dited his co nfession

. These facts are anal ogous to those i n Tidw ell and a s to the seco nd victim in Shelton in that there is no way to associ ate a parti cular event of unlawful contac t with a spe cific indictm ent.-30- This error was

not harmless. At both the cl ose of the state's proof and the close of

all t he proof, t he defendant requested that t he state make an electi on as to the of

fenses. Neit her the jur y instr uctions nor

the state 's closi ng argument were curat ive. The trial j udge did not speci fically instr uct the j ury as to the requi rements for a unani mous verdict. He merely inst ructed, " your verdict , whether ' guilty ' or 'not guilty' must be unanimous."In addit ion, duri ng its cl osing argument, the statedid not l imit thei r recitation of t he proof to any three sp ecific instan ces. Ra ther, the sta te sugg ested tha t the jury belie ve both the de fenda nt's co nfess ion an d the vic tim's te stimo ny as w ell.

On this basis , I would or dinaril y remand to the t rial cour t for a new trial.

_________________________________ Gary R. Wade, Judge