         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                  December 13, 2000 Session

               STATE OF TENNESSEE v. HOWARD W. WEAVER

                      Appeal from the Criminal Court for Roane County
                            No. 11781    E. Eugene Eblen, Judge



                                  No. E2000-00066-CCA-R3-CD
                                         March 1, 2001

The defendant appeals his convictions of two counts of aggravated sexual battery. He claims that
the trial court erred (1) in denying his motion to suppress his statement given to investigators from
the Department of Children’s Services and sheriff’s department, and (2) in failing to require the state
to elect the particular offenses upon which it sought convictions. He also claims that the evidence
presented at trial is insufficient to support his convictions. Upon review, we accept the state’s
concession of error in the failure to elect, but we are unpersuaded of merit in the defendant’s
suppression and sufficiency issues. We reverse the defendant’s convictions and remand for a new
trial.


       Tenn. R. App. P. 3; Judgment of the Criminal Court Reversed and Remanded.

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which GARY R. WADE, P.J. and
NORMA MCGEE OGLE , J., joined.

Charles B. Hill, II, for the Appellant, Howard W. Weaver.

Paul G. Summers, Attorney General & Reporter; R. Stephen Jobe, Assistant Attorney General; J.
Scott McCluen, District Attorney General; Wayne Henry, Assistant District Attorney General, for
the Appellant, State of Tennessee.
                                                        OPINION


                Howard W. Weaver appeals from his conviction of two counts of aggravated sexual
battery of M.C. and K.C.,1 two minor children who lived in his home. Weaver is presently serving
an effective eight-year sentence in the Department of Correction for his crimes. In this direct appeal,
he claims error in the admission of statements he made to the investigating authorities and in the
state’s failure to elect the offenses upon which it relied. He also claims that the evidence is
insufficient to support his conviction. Upon review, we see no error in the admission of the
defendant’s statements, nor do we find any deficiency in the strength of the convicting evidence.
However, we agree with both the defendant and the state that the absence of an election mandates
a new trial. We therefore reverse the defendant’s convictions and remand this case for a new trial.

                Two of the victims in the conviction offenses, M.C. and K.C., are sisters. In 1997,
they lived in the defendant’s Roane County home along with their mother, their mother’s female
friend, and the female friend’s two sons. The defendant’s home was a three-bedroom apartment.
The victims’ mother and her friend occupied two of the three bedrooms, and the defendant and the
four children occupied the third. The two boys slept in bunk beds, while M.C. and K.C. often slept
with the defendant in his queen-size bed.

               At trial, M.C. testified that she was born in 1986. She testified that when she was in
bed with the defendant, he reached into her panties and touched her vagina. She described this as
happening daily. M.C. did not describe any specific incidents of abuse. She said that the defendant
had never penetrated her.

              K.C. testified that she was born in 1988. She said that she sometimes slept in the
defendant’s bed, but that when he began touching her under her clothes in her “wrong places,” she
began sleeping in the closet. Like her sister, K.C. did not describe any particular occurrence of
sexual abuse.

               Another young girl, D.H., testified that she was M.C.’s friend and had spent the night
in the defendant’s home. She said that the defendant touched her on her vagina and her “butt.” She
said she was not sure how many times this happened. She also described an incident in which the
defendant “stuck his finger up my rear end.”

               A fourth young girl, H.C., testified that she was a friend of M.C. and spent the night
in the defendant’s home on occasion. She testified that on more than one occasion, the defendant
touched her private parts underneath her panties.

             Paul Phillips, who was a child protective services worker and investigator with the
Department of Children’s Services in October 1997, testified that he and Linda Booth, an


       1
           It is the policy of this c ourt to refer to minor victims of sex crimes by initials only.

                                                             -2-
investigator with the Roane County Sheriff’s Department, went to the defendant’s home on October
11, 1997 after receiving information that the defendant was sexually abusing young girls. Phillips
talked to the defendant, while Booth talked to D.H., although Booth was present during part of the
conversation between Phillips and the defendant. The defendant told Phillips that he massaged M.C.
and K.C. with their underwear off. He said he had touched M.C.’s vaginal area and that he might
have accidentally penetrated her vagina digitally more than once. He called M.C. a “sex y young
thing.”

               Linda Booth testified that she overheard the defendant tell Phillips that he had
massaged M.C., touched her pubic hair, and might have put his finger inside her accidentally. Booth
also overheard the defendant say he had massaged M.C.’s buttocks.

               The defendant testified that he did not sexually abuse any of the four girls who had
accused him. He denied making the statements that Phillips and Booth attributed to him, claiming
Phillips and Booth were part of a conspiracy against him. He claimed that several valuable items
of personal property were taken from his home and pawned, and several checks were taken from his
checkbook. He attributed this activity to the victims’ mother and her friend. He claimed that the
allegations of abuse were a means for the victims’ mother and her friend to prevent him from
prosecuting them for the thefts.

              Two of the defendant’s former neighbors testified that they had seen the defendant
with M.C. and K.C., and the girls seemed happy and appeared to have a good relationship with the
defendant.

               At the close of the state’s proof, the trial court entered a judgment of acquittal on the
child rape charges as to M.C. and K.C. Thus, the charges submitted to the jury were child rape of
D.H. and aggravated sexual battery of M.C., K.C. and H.C. The jury found the defendant not guilty
of any offenses relative to D.H. and H.C. It found the defendant guilty of aggravated sexual battery
of M.C. and K.C.

               The defendant then brought this appeal.

                                                   I

               The defendant’s first complaint is that the trial court erred in denying his motion to
suppress evidence of the conversation with Paul Phillips wherein he admitted inappropriate physical
contact with M.C. and K.C. The defendant complains that because he was not given Miranda
warnings prior to making the statements, this evidence should have been excluded.




                                                  -3-
                 The undisputed evidence at the suppression hearing and at trial2 demonstrated that
Paul Phillips, then a social worker with Child and Family Services, and Linda Booth, an investigator
with the Roane County Sheriff’s Department, went together to the defendant’s home in the course
of their respective investigations. When they arrived, the defendant was not home. When the
defendant returned, Phillips talked to the defendant outside the home. Booth was elsewhere
speaking with one or more other witnesses, although she was present during part of the conversation
between Phillips and the defendant. Phillips never advised the defendant of his Miranda rights.

               Both the state and the defendant agree that Booth advised the defendant of his rights,
but the evidence conflicts about when this occurred. Booth testified that she read the defendant his
rights before he made incriminatory statements in her presence, while the defendant testified that
Booth read him his rights after his conversation with Phillips was concluded and Booth was about
to depart.

               In passing on the suppression issue, the trial court ruled that Paul Phillips was under
no obligation to give the defendant Miranda warnings. The trial court found that any statements
made in Booth’s presence were made after the Miranda warnings were given. Accordingly, the court
denied the motion to suppress.

                A trial court's determination at a suppression hearing is presumptively correct on
appeal, State v. Stephenson, 878 S.W.2d 530, 544 (Tenn. 1994), and the findings are binding upon
this court unless the evidence contained in the record preponderates against them. State v. Binette,
33 S.W.3d 215, 217 (Tenn. 2000); State v. Odom, 928 S.W.2d 18, 22 (Tenn. 1996); Stephenson, 878
S.W.2d at 544; State v. Aucoin, 756 S.W.2d 705, 710 (Tenn. Crim. App. 1988).

                Under this standard, matters regarding the credibility of witnesses, the weight and
value to be afforded the evidence, and resolution of conflicts in the evidence are matters entrusted
to the trial court as the trier of fact. Odom, 928 S.W.2d at 23. On appeal, the defendant has the
burden of showing that the evidence preponderates against the trial court’s determination. State v.
Buck, 670 S.W.2d 600, 610 (Tenn. 1984).

               In determining whether Miranda warnings are required, the court must look to
whether the defendant was “in custody” at the time he made the incriminating statement. State v.
Anderson, 937 S.W.2d 851, 853 (Tenn. 1996). Custodial interrogation is "questioning initiated by
law enforcement officers after a person has been taken into custody or otherwise deprived of his
freedom of action in any significant way.” Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602,
1612 (1966). A person is "in custody" within the meaning of Miranda if there has been "a 'formal
arrest or restraint on freedom of movement' of the degree associated with a formal arrest."
California v. Beheler, 463 U.S. 1121, 1125, 103 S. Ct. 3517, 3520 (1983) (quoting Oregon v.
Mathiason, 429 U.S. 492, 495, 97 S. Ct. 711, 714 (1977)). An assessment whether the defendant


         2
          Upon review of a trial court’s ruling on a suppression motion, the appellate court may consider the evidence
presented both at the sup pression he aring and at tria l. State v. Henning, 975 S.W.2d 290 , 299 (Tenn. 1999).

                                                         -4-
was “in custody” for Miranda purposes is made based upon the totality of the circumstances.
Anderson, 937 S.W.2d at 855.

               The situation presented by the defendant in the case at bar is not a novel one. In the
past, we have been called upon to consider similar factual circumstances.

                In State v. Cooper, 912 S.W.2d 756 (Tenn. Crim. App. 1995), the defendant sought
suppression of his statement to an investigator with the district attorney’s office. The investigator
went to the defendant’s home to talk to him about allegations of child sexual abuse, but the
defendant was not home. Id. at 758. The investigator left a note for the defendant to call him. Id.
The defendant called the investigator and agreed to come to the district attorney’s office the next day.
Id. When the defendant arrived for the interview, the investigator advised the defendant of the
allegation against him and that the matter might be referred to the grand jury. Id. The defendant was
also informed that he was not under arrest and would be able to leave without regard to contents of
any statement he chose to give, although he was not given the Miranda warnings. Id. The defendant
then proceeded to give an incriminatory statement. Id. On these facts, we held that the defendant
clearly was not “in custody” so as to mandate the Miranda admonitions. Id. at 766. We found it
significant that the defendant arrived for the interview of his own accord, had no obligation to talk
to the investigator, was free to leave, and was actually permitted to leave after the interview. Id. We
also observed that neither the investigator’s recitation of the evidence against the defendant nor the
fact that the goal was to obtain an incriminatory statement from the defendant converted the
interview to a custodial one. Id. Thus, the evidence was admissible.

                 Similarly, in State v. Davis, 735 S.W.2d 854 (Tenn. Crim. App. 1987), officers of the
sheriff’s department went to a location where they expected to find the defendant in order to
interview him about allegations of child sexual abuse. Id. at 855. The defendant was not there, so
the sheriff called him and asked him to appear for an interview. Id. A few days later, the defendant
called and then appeared at the sheriff’s office, where he gave a statement which he later sought to
have suppressed. Id. It was undisputed that the defendant was not given Miranda warnings prior
to the statement, and he was told that he was not being charged, could leave at will, and had no
obligation to provide a statement. Id. We held that the trial court erred in suppressing the statement.
Id. at 856. We observed that the defendant was not in custody, was not coerced, and was aware he
was free to go. Id.

                Yet another analogous case is State v. Timothy Blackburn, No. 2 (Tenn. Crim. App.,
Jackson, Apr. 10, 1991), in which the defendant sought suppression of a statement he gave to an
employee of the Department of Human Services (DHS). On the DHS employee’s request, the
defendant agreed to go to the DHS office, where he met with the DHS employee and an investigator
from the district attorney’s office. Id., slip op. at 2-3. The defendant was not given the Miranda
warnings, although he was told that he was under no obligation to give a statement and was free to
leave at any time. Id., slip op. at 3. We held that the trial court erred in suppressing the statement
because the defendant was not in custody during the interview. Id., slip op. at 4.



                                                  -5-
                Like the defendants in Cooper, Davis and Timothy Blackburn, the defendant in the
case at bar presents an unavailing case for suppression of his statement. The defendant in this case
was interviewed at his own residence. He voluntarily accompanied Phillips outside the home to talk
to him. The defendant was not placed under arrest or physically restrained at any point, and he was
not taken into custody at the conclusion of the interview. The defendant was advised of his Miranda
rights during the interview, and he continued to speak with Phillips and Booth.3 Given the totality
of the circumstances, we are compelled to conclude that the defendant was not “in custody” such that
Miranda warnings were a necessity.

                   We therefore conclude that the trial court properly denied the motion to suppress.

                                                            II

             In his next issue, the defendant argues, and the state concedes, that reversible error
occurred when the trial court failed to require the state to make an election of offenses at trial.

                The defendant was charged with one count as to each victim, but the proof
demonstrated that there were multiple acts of sexual misconduct directed toward M.C. and K.C.4
In very general terms, both M.C. and K.C. testified that the defendant touched them in their genital
areas on numerous occasions. The state did not elicit proof of particular events from the victims.
The state did not present evidence via the victims that there were any identifying characteristics of
the incidents, such as particular types of touching, proximity to significant events, dates or other
identifying features which might serve to isolate one particular occurrence.5 The state made no
election of the particular event upon which it was relying as to each victim in seeking conviction of
the defendant.

                Tennessee law provides that if the evidence at trial suggests that the defendant has
committed more offenses then the number charged, the court has the obligation to require the state
to elect the offense(s) for which it seeks conviction. State v. Shelton, 851 S.W.2d 134, 137 (Tenn.
1993). The accused has a fundamental constitutional right to the election, id., and the trial court's
failure to require it is plain error. See, e.g., State v. Walton, 958 S.W.2d 724, 727 (Tenn. 1997).



         3
           The defendan t has failed to ca rry his burden of de monstrating th at the evidenc e prepo nderates ag ainst this
finding of the trial court. See Buck, 670 S.W.2d at 610. We therefore defer, as we must, to the trial court’s resolution
of conflicts in the e vidence. See Odom, 928 S.W.2d at 23.

         4
          Because the jury acquitted the defendant of the charge s relative to D .H. and H .C., we need not address them
in consideration of this issue.

         5
          Although neither M.C. nor K.C. testified at trial that the defend ant touched them on their b uttocks, the state
presented evidence through witness Paul Phillips that the defendant admitted both touching M.C.’s genital area and
massaging her buttock s. There is so mewhat am biguous testim ony from Phillips that the defendant admitted touching
K.C. on her buttocks as well as her genital area. The possibility that two different types of touching may have occurred
only amplifies the necessity of proper election.

                                                            -6-
                We agree with the parties that the state’s failure to elect the particular incidents upon
which it sought conviction was reversible error.6 See State v. Brown, 992 S.W.2d 389 (Tenn. 1999);
State v. Walton, 958 S.W.2d 724 (Tenn. 1997); State v. Tidwell, 922 S.W.2d 497 (Tenn. 1996). The
fact that the proof was general does not relieve the state of the obligation of election. See State v.
Clyde Hambrick, Jr., No. E1998-00893-CCA-R3-CD, slip op. at 10-12 (Tenn. Crim. App.,
Knoxville, June 27, 2000) (election of first event of every month inadequate where victim failed to
describe numerous incidents of sexual abuse with particularity); State v. Michael Thomason, No.
02C01-9903-CC-00086, slip op. at 18-19 (Tenn. Crim. App., Jackson, Mar. 7, 2000) (absence of
election was error where one of the victims testified that defendant had touched her inappropriately
“so many times” but failed to describe any specific incident). The state should have elicited proof
from which it could make a meaningful election, and the trial court should have assured unanimity
by requiring the election. See Brown, 992 S.W.2d at 392-93 (state should have elicited
particularizing proof).

                 On retrial of the defendant, if the state again presents evidence of more offenses than
are encompassed by the charge, it must elicit testimony that will allow the jury to determine whether
a specific act corresponds with each count. See id. Likewise, on retrial the state must properly elect
the same number of offenses per victim as there are charges relative to each victim. See Walton, 958
S.W.2d at 727. The trial court must, in turn, ensure that an election is made as to each count. See
id.

                                                             III

               Finally, the defendant claims that the evidence is insufficient to sustain his
convictions. Although we have already determined that reversible error occurred, we must
nevertheless address this issue because if it has merit, the remedy would be dismissal rather than a
remand for a new trial.

               The standard for review of sufficiency claims is a familiar one. When an accused
challenges the sufficiency of the evidence, an appellate court's standard of review is whether, after
considering the evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt. Tenn. R. App. P. 13(e);
Jackson v. Virginia, 443 U.S. 307, 324, 99 S. Ct. 2781, 2791-92 (1979); State v. Duncan, 698

         6
           It occurs to us that in some situations similar to the cases on trial, the failure to elect may result in a harmless
error. For instance, in a trial upon a single count of aggravated sexual battery, should a young victim of oft-repeated
sexual batteries be unable to describe the offenses except in a conclusory and general way, and the evidence shows that
the victim had not the means or the wherewithal to describe the events with particularity, and finally the defendant denied
any and all offenses, the jury trying such a case would have no basis on which to find that the defendant committed some
of the offenses but not others. Such an hypothesis points toward an all-or-nothing option for the jury. However, such
is not the case now befo re us. The v ictims testified to genital touching, but another witness testified that the defendant
admitted to massaging the victims’ butto cks. See n. 5; see also Tenn. Code Ann. § 39-13-501(2) (1997) (definition of
“intimate parts” includes “buttocks”); Tenn. Code Ann. § 39-13-501(6) (1997); Tenn. Code Ann. §39-13-504(a)(4)
(1997). We believe that the use of the evidence o f different types of to uching defe ats any claim that the error of failing
to elect offenses was harmless.

                                                             -7-
S.W.2d 63, 67 (Tenn. 1985). This rule applies to findings of guilt based upon direct evidence,
circumstantial evidence, or a combination of direct and circumstantial evidence. State v. Dykes, 803
S.W.2d 250, 253 (Tenn. Crim. App. 1990), overruled on other grounds by State v. Hooper, 29
S.W.3d 1 (Tenn. 2000). On appeal, the defendant no longer enjoys the presumption of innocence
and therefore has the burden of demonstrating that the evidence is insufficient to support the
conviction. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

                 In determining the sufficiency of the evidence, this court should not reweigh or
reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).
Questions concerning the credibility of the witnesses, the weight and value of the evidence, as well
as all factual issues raised by the evidence are resolved by the trier of fact. State v. Cabbage, 571
S.W.2d 832, 835 (Tenn. 1978). Nor may this court substitute its inferences for those drawn by the
trier of fact from the evidence. Liakas v. State, 199 Tenn. 298, 305, 286 S.W.2d 856, 859 (1956);
Farmer v. State, 574 S.W.2d 49, 51 (Tenn. Crim. App. 1978). On the contrary, this court must
afford the State of Tennessee the strongest legitimate view of the evidence contained in the record
as well as all reasonable and legitimate inferences which may be drawn from the evidence.
Cabbage, 571 S.W.2d at 835.

                  The defendant was convicted of aggravated sexual battery of M.C. and K.C. As
relevant to this case, that crime is “unlawful sexual contact with a victim by the defendant . . .
[where] . . . [t]he victim is less than thirteen (13) years of age.” Tenn. Code Ann. § 39-13-504(a)(4)
(1997). “‘Sexual contact’ includes the intentional touching of the victim’s . . . intimate parts . . . if
that intentional touching can be construed as being for the purpose of sexual arousal or gratification.”
Tenn. Code Ann. § 39-13-501(6) (1997). “‘Intimate parts’ includes the primary genital area, groin,
inner thigh, buttock or breast of a human being.” Tenn. Code Ann. § 39-13-501(2) (1997).

                With respect to the aggravated sexual battery conviction related to M.C., the
defendant claims there is no evidence of a specific event. The defendant argues that the proof is
therefore insufficient to sustain his conviction. Unfortunately for the defendant, our supreme court
has explicitly rejected such an argument. Brown, 992 S.W.2d at 392 (“[T]he remedy for the State's
failure to satisfy the election requirement is a new trial and not a dismissal due to insufficient
evidence.”).

                Moreover, the proof of the defendant’s crime against M.C. was sufficient. In the light
most favorable to the state, the defendant touched M.C.’s “intimate parts.” Circumstantially, one
may infer that the touching was intentional and that it was for the purpose of the defendant’s sexual
arousal or gratification. M.C. asked the defendant to stop, but he continued. The defendant told the
victim that if she told anyone she would get in trouble. The defendant told Paul Phillips that M.C.
was a “sexy young thing.” Review of the proof in the light most favorable to the state reveals
sufficient proof beyond a reasonable doubt of the defendant’s guilt of aggravated sexual battery of
M.C.




                                                  -8-
               With respect to the aggravated sexual battery conviction relative to K.C., the
defendant argues that “there is no credible evidence” supporting this conviction. He attacks the very
general nature of K.C.’s testimony, including the fact that K.C. said the defendant touched her on
her “bottom” but did not clarify what she meant. He attacks Paul Phillips’ testimony that the
defendant admitted massaging K.C.’s buttocks and claims that K.C. did not testify to that effect. The
defendant also assails K.C.’s failure to identify when the crime occurred.

                We begin by reaffirming that we must consider the evidence in the light most
favorable to the state and that we are not free to reassess witness credibility. With those principles
in mind, we hold that the evidence is sufficient to sustain the defendant’s conviction of aggravated
sexual battery of K.C. According to Paul Phillips, the defendant admitted massaging K.C. with her
underwear partly down and off. K.C. testified that the defendant touched her “wrong places” below
her clothing. She testified that this occurred when she was eight or nine, and it is readily inferred
from her testimony that it took place during the time she was living in the defendant’s home. Other
evidence at trial established that the time K.C. and M.C. lived with the defendant coincided with the
time frame of the indictments. Thus, there is sufficient evidence of the defendant’s crime against
K.C.

                 In conclusion, we are compelled to address the reversible error which occurred when
the trial court failed to require the state to elect the particular offenses upon which the state sought
conviction of the defendant as to each count of the indictment. We therefore reverse the defendant’s
two convictions and remand for a new trial.



                                                        ___________________________________
                                                        JAMES CURWOOD WITT, JR., JUDGE




                                                  -9-
