         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                   January 15, 2002 Session

           STATE OF TENNESSEE v. JAMES ARTHUR KIMBRELL

                  Direct Appeal from the Circuit Court for Fentress County
                            No. 7633    E. Shayne Sexton, Judge



                     No. M2000-02925-CCA-R3-CD - Filed April 15, 2003


On September 3, 1999, a Fentress County jury convicted the Defendant of four counts of rape of a
child, a Class A felony; five counts of rape, a Class B felony; and thirteen counts of incest, a Class
C felony. The trial court imposed an effective sentence of forty years. The Defendant now appeals
arguing that ineffective assistance of counsel at trial, along with newly discovered evidence,
prejudiced the Defendant to the point of depriving him of a fair trial with a reliable result. After a
review of the record, we conclude that the Defendant was denied due process through ineffective
assistance of counsel. We therefore reverse the Defendant’s convictions and remand this case to the
Fentress County Circuit Court for a new trial.

    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed and
                                        Remanded

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which DAVID H. WELLES and
THOMAS T. WOODA LL, JJ., joined.

David L. Raybin, Nashville, Tennessee, for the appellant, James Arthur Kimbrell.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
William Paul Phillips, District Attorney General; and John W. Galloway, Jr., Assistant District
Attorney General, for the appellee, State of Tennessee.

                                             OPINION

                                  I. PROCEDURAL HISTORY

        On May 15, 1998, the Fentress County Grand Jury indicted the Defendant, James Kimbrell,
on five counts of rape of a child, five counts of rape, twenty counts of incest, one count of felonious
reckless endangerment and one count of reckless driving. In January 1999, the reckless
endangerment and reckless driving counts were severed from the sexual offenses. The Defendant
pled not guilty to the sexual offenses, and a jury trial was conducted on September 2, 1999. On
September 3, 1999, the Defendant was convicted of four counts of rape of a child, a Class A felony;
five counts of rape, a Class B felony; and thirteen counts of incest, a Class C felony.

         On November 9, 1999, following a sentencing hearing, the trial court sentenced the
Defendant to concurrent twenty-year at 30% sentences for each rape of a child conviction. The trial
court sentenced the Defendant to ten years for each rape conviction. It ordered that the sentences for
three of the rape convictions run concurrently and that the sentences for the remaining two rape
convictions run concurrently to each other but consecutively to the other three sentences. Each of
the five sentences for rape was to be served at 100%. The court further ordered that the sentences
for the five rape convictions run consecutively to the sentences for rape of a child. Additionally, the
court imposed a sentence of three years at 30% for each of the thirteen counts of incest, to run
concurrently with each other and with all the other sentences. The resulting effective sentence was
thus twenty years at 30% followed by twenty years at 100%, to be served in the Tennessee
Department of Correction. This appeal ensued.

        The Defendant presents six issues for our review: (1) whether trial counsel rendered
ineffective assistance of counsel; (2) whether the Defendant is entitled to a new trial based on newly
discovered evidence; (3) whether the trial court allowed into evidence improper proof of additional
sexual offenses; (4) whether the charged offenses should have been severed; (5) whether the trial
court erred in failing to charge the jury on election and how to consider the “uncharged acts” and;
(6) whether the Assistant District Attorney improperly argued facts which were not in evidence.

                                                      II. FACTS

                                          A. Evidence Presented at Trial

        The victim, M.K.,1 was eighteen years old and married at the time of the trial. M.K. stated
that the Defendant was her adopted father and that he was married to Frances N. Kimbrell, her
adopted mother, during the time the alleged events took place. M.K. testified that when she was five
years old, she and her biological sister, Bethany, who is three years younger than her, were placed
together in foster care with the Kimbrells, who later adopted them. M.K. testified that the Kimbrells
also had a natural daughter, Julie, and an adopted son, Christopher, who lived in the home. M.K.
recalled that at times, other foster children lived with the Kimbrells. M.K. testified that around 1990
the Kimbrells moved into a home in Clarkrange, located in Fentress County, where they lived until
1997.

       M.K. testified that the Defendant initially fondled her and touched her in places “where he
should not be touching [her].” She recalled that the Defendant touched her breasts, her buttocks, and
her vaginal area. She testified that he first penetrated her when she was ten years old and that the


1
    It is the policy of this Court not to identify minor children involved in sexual abuse cases by name, even though the
victim was no long er a minor at the time of trial. Instead, we will identify the minor victim in this case b y her initials.



                                                            -2-
sexual abuse continued until she was seventeen years old. At that time, M.K. reported the abuse and
left home. She stated that the abuse usually occurred in the Kimbrell home while Mrs. Kimbrell was
away. However, M.K. testified that when Mrs. Kimbrell was home, the abuse occurred in the loft
of the barn. She further stated that when Mrs. Kimbrell was away, the Defendant would supervise
the younger children. On those occasions, he would often give Bethany and Christopher money to
buy bread or candy and tell them to go to the store, which was about a half of a mile from the home.

         M.K. testified that all the sexual incidents consisted of “normal sexual intercourse.” She
stated that more than fifty incidents of sexual abuse occurred over the seven-year period. She
testified that because of the frequency of the abuse, she had difficulty recalling specific incidents,
but stated that she could clearly remember the places where the abuse occurred. She stated that from
1990 until her thirteenth birthday on September 22, 1993, she had intercourse with the Defendant
more than five times: once in the loft of the barn, on her bedroom floor more than once, and once
on the couch in the living room. She could not recall, however, whether any abuse occurred in the
Defendant’s bedroom during that time period. M.K. testified that sexual intercourse with the
Defendant “started becoming a regular thing” when she was “about twelve . . . years old up until
[she] was sixteen.”

         M.K. stated that from the time she turned thirteen until she turned fifteen, she and the
Defendant had intercourse more than five times. She testified that during this period of time the
incidents were most frequent. She recalled an occasion when the Defendant took her, her sister, and
Christopher on a fishing trip to the City Lake in Fentress County. She testified that it began to rain,
so her sister and Christopher sought shelter nearby, while she walked to the Defendant’s truck. M.K.
testified that the Defendant followed her to the truck, and they had intercourse in the truck. She
recalled another occasion when she, the Defendant, her sister, and Christopher worked in the yard,
and while the others were outside burning a pile of brush, she and the Defendant had intercourse in
her bedroom. She testified that she had intercourse with the Defendant in her bedroom at times other
than on the day of the brush-pile burning.

        M.K. testified that between her thirteenth and fifteenth birthdays, she had sexual intercourse
with the Defendant in the living room. She stated that the abuse also occurred in the loft of the barn
during this period of time.

         M.K. testified that between the time she turned fifteen and the time when she left home, she
and the Defendant had intercourse in the loft of the barn after they had gathered walnuts. M.K.
stated that on her sixteenth birthday, she “begged” the Defendant not to have intercourse with her
any more, but things did not change. She testified that the Defendant became angry, and she could
not recall if they had intercourse that evening. M.K. estimated that from her sixteenth birthday until
she left home at age seventeen, she and the Defendant had sex approximately eight times. She stated
that the abuse became less frequent after she “realized [that she could] push him off.” M.K.
acknowledged that she did not always push the Defendant away because she relied on him to prevent
her mother from yelling at her or beating her. M.K. stated that it was obvious to everyone in the
family that she was his favorite child, and this is what caused her mother to dislike her. She also


                                                 -3-
stated that she helped the Defendant with his paperwork, wrote the checks to pay the family bills,
did the laundry for herself and her sister, and did most of the cooking. M.K. testified that the
Defendant and his wife never got along very well.

         M.K. testified that in August 1997, the Defendant bought a house and some property on Rock
Quarry Road in Clarkrange. She stated that on more than one occasion, she and the Defendant went
to work on the property before the family moved in. M.K. recalled on one occasion, she and the
Defendant had sexual intercourse inside the home on a piece of carpet. She testified that on two
separate occasions she and the Defendant had sexual intercourse in a cave on the property and on
the trail to the cave. M.K. testified that she “stayed sad a lot of the times because [she] didn’t like
it, and [she] cried a lot because of it, to him.”

         M.K. testified that the Defendant sometimes used a condom, depending on “whether [they]
were where he had put some up . . . .” She stated that he kept a plastic container with some condoms
in it near her bedroom, and he also kept some above the windows in the loft of the barn. M.K.
testified that she never saw what he did with the condoms after they were used because she would
leave as soon as they were finished having sex. She testified that she once thought she might be
pregnant and told the Defendant. According to M.K., the Defendant “said something about eating
celery or something and it would wash all the fluids out of [her] or something like that.”

       M.K. testified that on November 8, 1997, after the family had moved into the new house, she
received a phone call from a boy she knew from church. She stated that the two talked frequently,
but on this occasion, the Defendant came home while she was on the phone, became angry and
grabbed the phone from her. M.K. recalled that after the Defendant hung up the phone, he and his
wife began arguing. Mrs. Kimbrell then left the home. According to M.K., Mrs. Kimbrell stated,
“Beth and Chris get your stuff and let’s go.” M.K. understood that to mean that Mrs. Kimbrell did
not want her to go with them. M.K. testified that she left the home two days later on Monday,
November 10, 1997.

        M.K. testified that she finally decided to tell someone about the abuse when the Defendant
tried to fondle her early one morning as she was sleeping on the couch. She claimed that the
Defendant would not stop when she asked him to do so. M.K. stated that at that time, she was
working at Little Pumpkin Child Care. When she arrived at work, she told her boss, Cynthia
Sherrill, about the abuse. That night, she went to the home of Ron and Nancy Kington, her new
foster parents, and never returned to the Defendant’s home.

        M.K. testified that the Department of Human Services (DHS) conducted an investigation.
She was interviewed by Shane Lyttle. She stated that, over the years, she had spoken with other
DHS workers, including DeWayne Wakefield and George Stephens, regarding beatings by Mrs.
Kimbrell, but she never reported the sexual incidents. M.K. maintained that she did not report the
sexual abuse because she felt that she would not be believed. According to M.K., because DHS did
not respond to her allegations concerning physical abuse by Mrs. Kimbrell, which, according to
M.K., were substantiated by bruises, she believed that nothing would be done about the sexual abuse.


                                                 -4-
Finally, M.K. testified that she was examined by a nurse practitioner and that, prior to that
examination, she had never had sexual intercourse with anyone other than the Defendant.

        On cross-examination, M.K. testified that there was no television in the Kimbrell home and
that they were allowed to listen to a radio only if the radio was tuned to a Christian station. She
stated that she was not allowed to wear pants or jewelry, although she admitted that she did wear
make-up. M.K. testified that she was not allowed to date before the age of eighteen. M.K. testified
she was required to attend church twice a week and had to sit with her parents during church. She
reported that when the Kimbrell children went to the County Fair, they were allowed to attend only
gospel shows. M.K. also admitted that, even though it was against the rules, she did sometimes
change into shorts once she arrived at school, but that she did so “not very often.”

        M.K. recalled that Julie Kimbrell was still living in the home when the sexual abuse began.
She stated that she told Julie that the Defendant was “touching her.” M.K. testified that Julie
questioned the Defendant about the abuse, but the Defendant “did come back to [M.K.] with it.”
M.K. stated that from 1990, when the abuse began, until 1993, when Julie married and moved out
of the home, the sexual abuse always occurred when Julie was not at home.

        M.K. testified that in addition to her interview with DHS worker, Shane Lyttle, she was
interviewed by Ann Austin from the Department of Children’s Services (DCS). She admitted that
during these interviews, she never mentioned anything about sexual activity with the Defendant at
City Lake, the cave at the new home, or the trail leading up to that cave because she felt DCS did
not need to know the details. However, M.K. insisted she told her lawyer everything.

        M.K. stated that the DHS investigators never asked her if she was being sexually abused, and
she acknowledged that she was not sure if she would have admitted the abuse had she been asked.
M.K. testified that she spoke with her biological aunt, Faye Human, many times by phone and that
she had written notes to her aunt for about a month while living with the Kimbrells. M.K. stated that
she repeatedly asked her aunt if she could live with her, but she admitted that she never mentioned
to her aunt that she was being sexually abused. M.K. testified that she did not think that her aunt
could help her. M.K. testified that she was able to give her attorney more details concerning the
sexual abuse because she had time to think about the incidents. She stated that she had nothing to
gain by testifying at trial.

         Bethany Kimbrell, who was sixteen years old at the time of trial, testified that she was about
two years old when she went to live with the Kimbrells. She stated that she had often been in the
loft of the barn in Clarkrange, where she found new and used condoms. Bethany stated that at first
she did not know what they were. She recalled that she usually found two or three used condoms
at a time “just laying around on the top loft on the floor.” Bethany testified that the new condoms
were located on a board above the doors in the loft. Bethany stated that she threw the used condoms
over the fence and kept the new ones even though she said she did not know what they were. She
testified that she never saw the Defendant in that part of the loft.



                                                 -5-
         Bethany recalled that on occasions when she, M.K. and Christopher were home with the
Defendant, the Defendant frequently sent her and Christopher to the store. She testified that a trip
to the store took between thirty and forty-five minutes. Bethany stated that on other occasions, the
Defendant would require her and Christopher to stay outside or in their rooms. She testified that she
had no actual knowledge of what occurred when M.K. was alone with the Defendant.

        On cross-examination, Bethany acknowledged that she could not remember the first time she
found condoms in the loft. However, she stated that the last time she found them was when the
family was cleaning out the barn to move. She admitted that she did not tell DHS workers about
finding the condoms in the loft. She also testified that she did not mention the condoms to Shane
Lyttle when he was taping an interview with her specifically about the allegations of sexual abuse
made by M.K. Bethany testified that Christopher knew that she had found the condoms because he
was with her when she found them. Bethany testified that she did tell her new foster parents or, in
an untaped interview, a DHS worker named Beth Smith about the condoms in the loft. Finally, on
re-direct examination, she testified that the first time she contacted the Department of Human
Services regarding the allegation of physical abuse by her mother, she was punished for doing so by
having to stay in her room, except for eating supper, for two or three weeks. However, she testified
that M.K. was not punished because of that report or investigation.

        Sue Ross, a pediatric nurse practitioner at Our Kids Center in Nashville, Tennessee, testified
that she examined M.K. on January 7, 1998. According to Ross, Our Kids Center is a clinic of
Metro-General Hospital that was established in 1987 to perform evaluations on children alleged to
have been sexually abused. She reported that her examination of M.K. revealed an indication of past
penetration trauma to the hymen. On cross-examination, Ross stated that she could not tell from the
examination how often penetration had occurred or how long ago it had occurred.

        The Defendant testified that he was fifty-three years old at the time of the trial and that his
primary area of employment was in construction as a contractor and a carpenter. He recalled that
he moved to Fentress County, Tennessee from Indiana in 1980. The Defendant testified that his
marriage to Frances Kimbrell lasted thirty-three and one-half years. The couple had two natural
children, Jimmy and Julie, and over a period of about eight years until 1994 or 1995, over forty foster
children stayed in their home. The Defendant testified that in 1989 or 1990, he and his wife adopted
M.K., Bethany, and Chris. He stated the family went to church “every time the door was open” and
that they went to several types of “organizational” churches.

        The Defendant admitted that the girls were not allowed to wear slacks, jewelry, or make-up.
The Defendant testified that the girls were required to wear their dresses and skirts below the knee
and to attend Christian school. The Defendant did not allow the girls to date until they became
eighteen. He testified that the girls could not cut their hair except to trim split ends. There was no
television in the home, and the radio was tuned only to gospel stations. The Defendant reported that
his personal habits also excluded the use of alcohol, and he had not used any tobacco since the age
of sixteen.



                                                 -6-
         The Defendant testified that he was divorced from his wife at the time of the trial. He stated
that they had a long history of problems prior to the divorce that stemmed from his wife’s desire to
live in a different manner. The Defendant testified that among other things, Mrs. Kimbrell wanted
a television and credit cards. He stated that his wife had obtained credit cards, but did not tell him.
The Defendant testified that his wife left before the allegations of sexual abuse, and he believed she
had been planning to leave him for some time prior. The Defendant testified that he also had
problems with M.K., beginning when she was about fourteen, about the rules of the house. He
recalled that she wore make-up, wore shorts at school, and wanted to date. He testified that he
agreed to permit her to invite boys to sit with the family at church, as he had allowed his natural
daughter, Julie, to do at that age.

        The Defendant denied having sex with his daughter, M.K. He testified that he had trouble
performing sexually and that he sought treatment first from his regular doctor, and then from a
specialist, Dr. Goryl. The Defendant reported that he saw Dr. Goryl about two times, and he thought
the visits occurred during the summer of August, 1994. He stated that the doctor tried two types of
treatments, one of which involved a procedure that the Defendant had to perform thirty minutes
before sex. The other treatment was a shot, which the Defendant testified was not effective.
According to the Defendant, he told the doctor that he did not want to go through the procedure
before sex, and “if that is what had to happen, it wasn’t that important, [he] wasn’t that interested.”

        On cross-examination, the Defendant admitted that he had been reluctant to go to the doctor
and finally went at the request of his wife because it was important to her. He testified that after
1994, he had sex with his wife only a “very few times” and acknowledged that he had been able to
perform on occasion. When asked if he had any heart problems between 1993 and 1997, the
Defendant testified that he had been in Cookeville Hospital in June of 1997. He further testified that
he did not have diabetes and that he did not take any medication for high blood pressure, although
he said his blood pressure always ran a little high. The Defendant stated that Dr. Goryl told him that
his hormone level was “near zero.”

        The Defendant testified that the rules he enforced in his house were based on his religious
beliefs. He stated that when he married Mrs. Kimbrell, she shared his beliefs, but as time passed,
she began to want a television and credit cards. The Defendant testified that his wife threatened to
leave before they adopted children.

        The Defendant testified that on the night Mrs. Kimbrell moved out of the house, he was
infuriated with M.K. because she was “throwing a fit.” He stated that she was upset because her
younger brother had gone with the Defendant to the “other property” to move some things, and she
did not want her brother to go. The Defendant testified that just before the argument with Mrs.
Kimbrell, M.K. was talking on the phone with a boy, and he took the phone from her and told the
boy not to call back. He denied “cussing.” He admitted that when his wife left, she said that he
could move “her” into his bedroom since “she” was practically there anyway. The Defendant stated
that the Assistant District Attorney General just assumed that “her” and “she” were M.K.



                                                 -7-
         The Defendant testified that when he was first interviewed by Shane Lyttle, he stated that he
was not aware of any opportunity that M.K. had to have sex with any boys unless it was while she
was at school. However, when asked if “that would still be true today, [that] you are not aware of
any other times she would have had sex with anybody?” the Defendant replied, “I have found out
a lot of things since she left.”

         Finally, the Defendant testified that he did have some problems with M.K. because she
wanted to talk to, date, or write letters to boys. He testified that there was an incident in 1995, which
he later discussed with DHS workers, when he had found some “very vulgar letters” either to or from
two different boys, one of whom was Will Campbell. He stated that he spoke to the parents of one
of the boys and disciplined M.K. by making her eat a one-page letter she had written to Will
Campbell.

        Dr. Stephen V. Goryl, a specialist in urology, testified that he first saw the Defendant on
April 14, 1994, on a referral from Dr. Gray Smith. Dr. Goryl stated that the Defendant complained
of erectile dysfunction. According to Dr. Goryl, the Defendant stated that he had had the problem
for ten years and that he had no desire for sex. The doctor stated that his records showed that the
Defendant stated that he never woke up with an erection, despite the fact that he was not on any
medication, was not diabetic, and had no significant past medical history to explain the problem.
The doctor explained that at the time, the treatment options for the Defendant’s problem were
limited, but the Defendant tried the two drugs that were available at the time.

       Dr. Goryl testified that he tested the Defendant’s serum testosterone, because occasionally,
men who have no desire for sex have low testosterone. However, the Defendant’s test results were
normal. When the Defendant returned for a second visit on May 12, 1994 and indicated that the
medications had not helped, the doctor ordered a shot of testosterol for him. The doctor testified that
the second visit was the last time he saw the Defendant. He stated that he did not recall what other
treatments he offered the Defendant, but he testified that he probably told the Defendant that he
could get injections that would create an erection.

       On cross-examination, Dr. Goryl testified that either physical pain or psychological problems
can prevent men from having erections. The doctor explained that in diagnosing erectile
dysfunction, all possible physical problems must first be eliminated. Dr. Goryl reported that he
found no physiological cause for the Defendant’s impotence. Finally, Dr. Goryl testified that a
person can be impotent with one sex partner and be fine with another.

         Julie Townsley, the Kimbrells’ natural daughter, testified that she was thirty-one at the time
of the trial and that she was twenty-five years old when she left home in 1993 to get married. She
stated that she had lived in the home with the three adopted children and several foster children.
Townsley testified that while she was living with her parents, there was no television in the home,
and she listened to news or gospel radio. She stated she did not wear pants, drink alcohol, or use
tobacco. She testified that she was allowed to wear make-up and jewelry. She also testified that she
was allowed to date boys once she turned seventeen. In addition, she said she always saw her father


                                                  -8-
fully clothed around the house. Townsley testified that she did not feel restricted by the rules.
However, she believed that M.K. did have problems with the rules and tried to rebel against them.

       Mrs. Townsley testified that M.K. had never discussed any improper behavior by the
Defendant. On cross-examination, she stated that if M.K. had ever said “anything as serious as that,”
she would have sought out the truth. Julie Townsley acknowledged that there were times when she
and her mother were working, and the Defendant was alone with the children.

        Bob Allred testified that he had known the Defendant since 1992. He testified that they
attended church together and that he had frequently visited the Defendant’s home. He stated he had
always found the Defendant to be a truthful man and that his reputation in the community was as a
truthful person.

        Ed Hatfield testified that he had been a resident of Fentress County since 1972 and that he
had known the Defendant for thirty to thirty-five years, dating back to when the Defendant lived in
Indiana before coming to Tennessee. Hatfield stated that he would take the Defendant’s word as
truthful. He also stated that he knew the Defendant to have a reputation for truthfulness in the
community.

       In rebuttal, M.K. testified that she had a discussion with the Defendant about his impotence,
and she recalled him visiting the doctor for the problem. She stated that the Defendant told her that
he “could not do what he needed to do for [Mrs. Kimbrell],”and whenever he was in bed with his
wife, “he would think about [M.K.] or something so that he could perform to [his wife].” M.K.
maintained that the Defendant had “no trouble” getting erections when he was with her. On cross-
examination, M.K. admitted that she never told anyone who interviewed her about the Defendant’s
impotence or about her conversations with the Defendant about it. She stated that she told only her
lawyer that information.

         Shane Lyttle testified that he worked for the DHS and that he had previously worked for the
Department of Children’s Services as a child abuse investigator. He stated that he was assigned to
investigate the case involving the Defendant and M.K. He stated that he interviewed M.K., but he
did not ask her any questions about impotence because he did not realize that impotence was an issue
in this case. He explained that during an initial interview of a child who may have been abused, he
does not focus on the details. According to Lyttle, the priority is to find out if the child is in
immediate danger and needs to be removed from the home. Lyttle stated that the specifics are
investigated later.

        Lyttle testified that he interviewed the Defendant on November 10, 1997 about the
allegations made by M.K. He stated that the Defendant denied the allegations of sexual abuse, but
admitted to having an argument with M.K. on the day that Mrs. Kimbrell left. Lyttle recalled the
Defendant telling him that he found M.K. on the phone with a boy, that he got on the phone,
“cussed” the boy, and hung up. Lyttle also reported that he and the Defendant discussed the



                                                -9-
“particular statement” referring to moving M.K. into the bedroom, that was made when Mrs.
Kimbrell left.

        On cross-examination, Lyttle testified that he taped his first interview with M.K., but he did
not tape the later interview with the Defendant. He testified that the interview with the Defendant
was dictated from his notes and transcribed, which is the normal procedure included in the child
abuse protection handbook and manual. He testified that the Defendant claimed to have had
problems with M.K. passing out condoms at school.

                         B. Evidence Presented at the Sentencing Hearing

        At the sentencing hearing, two juvenile males each testified that they had sexual relations
with M.K. during the time she claimed to have had sex with no one but the Defendant. Will
Campbell, who was nineteen years old at the time of trial, testified that in 1996 he had sexual
intercourse with M.K. on one occasion in a barn at the Kimbrell home and that she had performed
oral sex on him on another occasion. He stated that when they had intercourse, he found blood on
his genitals that was not his own. Campbell had admitted that he initially denied having sexual
relations of any kind with M.K. when interviewed by investigator Mitch Stephens from the District
Attorney’s office.

        Campbell testified that M.K. told him she had sexual relations with three other boys, Travis
Stowers, Nathan Elliott, and Jessie Brown. Jessie Lee Brown, who was eighteen years old at the
time of trial, testified that he had intercourse once with M.K. when he was fifteen years old. Travis
Stowers, who was eighteen years old at the time of trial, denied ever having sexual relations with
M.K.

       Danielle Kimbrell, M.K.’s twenty-one-year-old cousin, testified that her uncle, the
Defendant, brought his adopted daughters to visit her family in Indiana approximately twice a year.
According to Danielle Kimbrell, on one occasion in the summer of 1997, M.K. asked her for advice
about sexual techniques because M.K. and her boyfriend had been having sex. When asked if M.K.
could have been referring to the Defendant as her boyfriend, Kimbrell responded, “I don’t know.”
She also testified that M.K. told her that she loved her parents, but she did not like the way she was
being raised. On cross-examination, Danielle Kimbrell stated that before the trial in this case, she
told Defendant’s trial counsel the same information about which she was testifying in the sentencing
hearing. She also stated that she did not know to whom M.K. was referring when she was talking
about having sex with her boyfriend.

         Frances Kimbrell, the Defendant’s ex-wife, testified that she had been married to the
Defendant for thirty-three and a half years. She stated that she filed for divorce just before the
allegations in this case and that her reasons for the divorce were incompatibility and deterioration
of the marriage over the years. She stated that she did not talk to the Defendant’s trial counsel before
the trial. Mrs. Kimbrell admitted that DHS had previously investigated her for hitting M.K.’s sister.
She stated that she underwent, and successfully completed, counseling. Mrs. Kimbrell denied ever


                                                 -10-
making the children eat soap as punishment. She maintained that she had no knowledge of any
sexual abuse of M.K. by her husband, nor did she believe that he had the character to commit such
abuse. Mrs. Kimbrell recalled that both M.K. and Bethany had often been untruthful in the past. On
cross-examination, she confirmed that her husband had impotence problems, which persisted even
after he had two visits with a specialist. She stated that on the night she left, she wanted M.K. to go
with her, but M.K. chose to stay. Kimbrell acknowledged that in November 1997, she told Shane
Lyttle that Bethany had also made allegations regarding the Defendant. She admitted telling the
Defendant on the night she left, “[Y]ou might as well move her in there now.” Kimbrell stated that
she was referring to M.K. because M.K. refused to leave. She maintained that she was referring to
a “position of authority” rather than the Defendant’s bedroom.

        James R. Kimbrell, the Defendant’s oldest child, testified to his father’s good character.
Danny Lee Kimbrell, the Defendant’s brother, also testified to the Defendant’s good moral character.
He further testified that he believed M.K. was not a truthful person. Danny Kimbrell testified that
another brother, Lonnie, had also adopted a daughter, Margo, who, a couple of years before this case,
had made accusations of sexual abuse against Lonnie. He stated that the allegations never resulted
in a criminal prosecution, but the daughter did leave the home and did not return.

         Bethany Kimbrell testified that in the fall of 1997, the Defendant touched her inappropriately
on her breasts on two separate occasions on the basement stairs. On cross-examination, Bethany
admitted that she told Shane Lyttle that she was in her room when the Defendant touched her. She
reported that when the allegations made by M.K. came out, Julie asked Bethany if anything like that
had ever happened to her, and she replied that it had not. Bethany testified that when Mrs. Kimbrell
left the home, she said something like “[W]ell, he can have her . . . .” She also testified that her
mother made her eat soap as a punishment once or twice.

        M.K. testified that she never had sexual relations with Will Campbell, Jessie Brown, Nathan
Elliott or Travis Stowers. She admitted that she knew of the allegations made against the
Defendant’s brother, Lonnie Kimbrell, but she stated that she was very young when the allegations
were made. M.K. denied ever having any conversations with her cousin, Danielle Kimbrell, about
sex and stated that she had only seen Danielle a few times in her life. M.K. also denied ever talking
to her cousin about Margo, the cousin who had made allegations of sexual abuse against her adoptive
father, Lonnie Kimbrell. M.K. testified that the Defendant was “real mean” and that he punished
her by making her eat soap and by kicking her. However, she admitted that she wrote letters to her
father saying that he was her “hero.” She also acknowledged that she sporadically kept a diary, but
she never wrote anything in it about her father abusing her in any manner.

         In rebuttal, Danielle Kimbrell testified that she and M.K. did have a conversation about their
mutual cousin, Margo, and the allegations Margo had made against her adoptive father, Lonnie
Kimbrell. Danielle further testified that during that conversation, M.K. asked if Margo “got any
money out of it.” She restated that, contrary to M.K.’s testimony, the two girls had seen each other
at least twice a year until this case began. On cross-examination, she reported that the situation with
Margo had occurred recently, about two to two and a half years prior to the sentencing hearing.


                                                 -11-
Finally, Danielle testified that she had spoken to her mother about the conversation with M.K.
regarding Margo and she did discuss it with the Defendant’s trial counsel before the trial. Danielle
acknowledged that she spoke to defense counsel about the conversation she had with M.K. during
which M.K. asked her about sexual techniques.

              C. Evidence Presented at the Hearing on the Motion for a New Trial

        Jessie Lee Brown confirmed his testimony from the sentencing hearing that he did have
sexual intercourse with M.K. Brown testified that he and M.K. talked on the phone and that he then
hitchhiked and met her at a church. According to Brown, Andrea Gunter lived about 200 yards from
the church. Brown stated that after meeting at the church, he and M.K. “drifted off” to some nearby
oil tanks and had sex. He also testified that Gunter had knowledge of his having sexual intercourse
with M.K., but he admitted that he did not mention Gunter at the sentencing hearing when describing
these events. Brown testified that he did not talk to defense counsel before trial.

         Andrea Gunter, who was eighteen years old, testified that the first time she had spoken with
anyone about this case was after the trial in April 2000. She stated she was friends with Jessie
Brown, and she recalled an occasion three years prior to the hearing when M.K. and Jessie Brown
had come to her house. She stated that two other friends, Julie Watson and Ronnie Wall, were there
at the time. Gunter recalled that she and M.K. walked to a nearby church prior to everyone’s arrival
at her house. Gunter testified that Jessie Brown, Julie Watson, and Ronnie Ball met them at the
church. Gunter testified that she and M.K. then walked back to her house, while the other three
drove. She testified that at some point, Brown and M.K. wandered off by themselves. Gunter
reported that Brown and M.K. returned about ten minutes later. Gunter testified that “[M.K.] kissed
Jessie, told him that she loved him and she ran inside [Gunter’s] house.” Gunter testified that she
followed M.K. inside the house, and M.K. told her that “they had sex.” Gunter stated that a few days
or weeks later, Jessie Brown told her that he had sexual intercourse with M.K. She testified that she
and Brown talked about the incident again some time later after this was pending. On cross-
examination, Gunter testified that she did not see M.K. and Brown kiss in the church.

       Jetta Fulmer, the Defendant’s sister, testified that Danielle Kimbrell and M.K. were friendly
and that she had been around the two girls when they saw each other on about eight separate
occasions. She stated that she knew they had been together “quite a lot.” Fulmer brought
photographs of Danielle, M.K., and Bethany Kimbrell together at family events and stated that they
“were very friendly with each other.”

        The Defendant’s brother, Lonnie Kimbrell, testified that he and his wife had adopted his
wife’s half-sister’s three children in 1986. He testified that the middle child, Margo, made
allegations of sexual abuse against him in 1993. He testified that she alleged that he “had been
sexually inappropriate with her since she was ten years of age.” Kimbrell stated that Margo made
the allegations after he had hit her three times with a belt for being caught in the school cafeteria
with a boy whose hand was in her pants. He testified that the criminal investigation of this case
spanned over a year, but the criminal investigation was dropped in 1995, and no charges were ever


                                                -12-
brought against him. However, he acknowledged that the adoption and custody of the children was
pending in court until 1997. He stated that the case received public attention on the radio, on
television, and in the newspapers. However, he testified that he did not talk to the Defendant about
his problems. Kimbrell testified that he never regained custody of his adopted daughter.

       M.K. testified that she used to work at a church near Andrea Gunter’s house. She also said
there were some oil tanks nearby. M.K. stated that she considered Gunter to be her friend and an
honest person. However, M.K. denied having sex with Jessie Brown near the oil tanks and also
denied ever telling Gunter she had sex with Brown.

        Mitchell Stephens, a former sheriff, testified that at the time of the hearing, he worked for
the District Attorney’s Office. He testified that he and a Tennessee Bureau of Investigation (TBI)
agent interviewed Will Campbell and that Campbell had been given a polygraph. He testified that
after the polygraph test, Campbell made a sworn statement. Stephens recalled that Campbell’s
statement after the polygraph was different from the statement he made before and during the
polygraph: Campbell’s former statement contained a claim that he had sexual intercourse with M.K.,
and in the latter statement, he claimed that he had only had oral sex with her. He stated that he and
the TBI agent interviewed Jessie Brown on the same day they interviewed Campbell. Brown was
also given a polygraph. Unlike Campbell, Brown gave no other sworn statement after his polygraph.
Stephens also said he talked with Andrea Gunter’s mother.

        Shane Lyttle testified that in addition to interviewing M.K. and the Defendant, he had
interviewed Frances Kimbrell, the Defendant’s former wife. He reported that she told him that on
the night she left the home she had shared with the Defendant, she told the Defendant that he “could
just go ahead and move her into his bedroom now because she was practically there anyway.” Lyttle
stated that Mrs. Kimbrell told him that when she heard of the allegations made by M.K. against the
Defendant, “it explained a lot to her.” According to Lyttle, Mrs. Kimbrell stated that the Defendant
“certainly had favored M.K. over her,” and she told him that she and the Defendant “hadn’t had
sexual relations in the past two (2) years.” He testified that Mrs. Kimbrell also told him that she
would not move back into their home and that she had contacted a lawyer about getting a divorce.

       Finally, Linda Reagan testified that Jessie Brown was put into foster care in her home in
1996. She testified that Brown told her that he had sexual intercourse with M.K. several times in
M.K.’s bedroom. Reagan stated that she had contacted the Defendant about Brown’s claims that he
had sex with M.K.

                                         III. ANALYSIS

                               A. Ineffective Assistance of Counsel

       The Defendant argues that he was denied effective assistance of counsel at trial. The
Tennessee Supreme Court has held that the issue of ineffective assistance of counsel is a mixed
question of law and fact and, as such, is subject to de novo review. State v. Burns, 6 S.W.3d 453,


                                                -13-
461 (Tenn. 1999). The right of a criminally accused to representation is guaranteed by both the Sixth
Amendment to the United States Constitution and Article I, Section 9 of the Tennessee Constitution.
Id.; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). This right to representation includes the
right to “reasonably effective” assistance. Burns, 6 S.W.3d at 461. In reviewing a claim of
ineffective assistance of counsel, this Court must determine whether the advice given or services
rendered by the attorney are within the range of competence demanded of attorneys in criminal cases.
Baxter, 523 S.W.2d at 936. To prevail on a claim of ineffective assistance of counsel, a petitioner
must show that “counsel’s representation fell below an objective standard of reasonableness,”
Strickland v. Washington, 466 U.S. 668, 688 (1984), and that this performance prejudiced the
defense, resulting in a failure to produce a reliable result. Id. at 687; Cooper v. State, 849 S.W.2d
744, 747 (Tenn.1993). To satisfy the requirement of prejudice, a petitioner must show a reasonable
probability that, but for counsel’s unreasonable error, the fact finder would have had reasonable
doubt regarding the petitioner’s guilt. Strickland, 466 U.S. at 695. This reasonable probability must
be “sufficient to undermine confidence in the outcome.” Id. at 694; see also Harris v. State, 875
S.W.2d 662, 665 (Tenn. 1994).

        When evaluating an ineffective assistance of counsel claim, the reviewing court should judge
the attorney’s performance within the context of the case as a whole, taking into account all relevant
circumstances. Strickland, 466 U.S. at 690; State v. Mitchell, 753 S.W.2d 148, 149 (Tenn. Crim.
App. 1988). The reviewing court must evaluate the questionable conduct from the attorney’s
perspective at the time. Strickland, 466 U.S. at 690; Cooper, 849 S.W.2d at 746; Hellard v. State,
629 S.W.2d 4, 9 (Tenn. 1982). In doing so, the reviewing court must be highly deferential and
“should indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Burns, 6 S.W.3d at 462. Counsel should not be deemed to have
been ineffective merely because a different procedure or strategy might have produced a different
result. Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980).

       The Defendant claims that counsel was ineffective for (1) failing to interview Will Campbell,
who was subpoenaed to testify at trial, (2) failing to locate or interview Jessie Brown, (3) failing to
present the testimony of Andrea Gunter, and (4) failing to present the testimony of Danielle
Kimbrell.

         Jimmy White, the Defendant’s trial counsel, testified at the hearing on the motion for new
trial that he is an attorney who has been licensed to practice in Tennessee for seventeen years and
that he is a part-time general sessions judge in Clay County, Tennessee. He stated that he was
retained by the Defendant within a week after the allegations were first made by M.K. He stated that
he represented the Defendant on various legal matters, including the removal of M.K. and Bethany
from the Kimbrell home and his divorce from Mrs. Kimbrell. He testified that the criminal charges
in this case did not arise until May 1998. White testified that he met with the Defendant about
fifteen to twenty times prior to trial.

       White testified he interviewed M.K. prior to trial, and she told him that she never had sex
with anyone other than the Defendant. He also stated, however, that there was some indication prior


                                                 -14-
to trial that M.K. had engaged in sexual relations with boys her own age before she made the
accusations against the Defendant. He testified that according to his notes, “Some heard she had sex,
she denied. Danielle says - admitted.” White stated that Danielle Kimbrell had indicated that M.K.
had prior sexual experience. White explained that pursuant to his understanding of Tennessee Rule
of Evidence 412, the “Rape Shield Law,” he was prevented from presenting such evidence on his
own initiative. He also stated that he did not anticipate that the Assistant District Attorney would
“open the door” to allow him to present the evidence. As such, he did not pursue that avenue of
investigation. However, he noted that “clearly the door was opened . . . when [the State] asked her
[if she] had sex with anyone.”

        White further testified that he made tactical decisions not to call Frances Kimbrell to testify,
not to use a letter M.K. had written to her father, and not to use M.K.’s diary at trial. He stated that
he did not call Danielle Kimbrell to testify about her conversations with M.K. because of his
understanding of the law at the time and because he felt that the jury might perceive her testimony
as biased toward her uncle. White testified that he decided not to use other family members as
character witnesses due to similar concerns of perceived bias, although he did call the Kimbrells’
biological daughter, Julie Kimbrell. He reported that he called Julie Kimbrell as a witness because
she was able to describe the rules by which girls in the Kimbrell house lived and to state her opinion
that she did not find the rules unreasonable or too restrictive, even though M.K. did rebel against
them. Counsel testified that he believed that he had sufficiently attacked M.K.’s credibility.

      Counsel testified that he subpoenaed Will Campbell and Campbell’s mother, Myrtle
Campbell, to testify, but he did not actually call them to testify at trial. According to counsel, Myrtle
Campbell said that she thought M.K. was “trouble” and did not want her “hanging out” with her son.
Counsel testified that it was a tactical decision not to call Campbell or his mother to testify.

        White testified that prior to trial, he was not aware of the identities of anyone who since
claimed to have had sex with M.K. while she was living in the Kimbrell house, nor did he know the
identities of anyone other than Danielle who had any knowledge that M.K. was having sex with boys
her own age. He stated that if he had known that there were people who could testify as to M.K’s
sexual history, he certainly would have used them at trial. White also stated that he did not know
about the allegations M.K.’s cousin, Margo, made against her adoptive father, but would have used
the information to provide motives for M.K.’s allegations had he been aware of the allegations.

        White was unable to provide any reason why he made no attempt at trial to exclude or to
object to testimony about unindicted charges against the Defendant. He also had no explanation as
to why he failed to insist that the Assistant District Attorney make a formal election of the charges
for which convictions were sought. He acknowledged that the jury came back and asked for the bill
of particulars. He also acknowledged that the State referred to each indicted offense and explained
that the indicted charges were the ones that M.K. remembered with specificity.

       White testified that he did not introduce M.K.’s diary or letters because he was trying to show
that M.K. was not happy in the Kimbrell’s home and that her motive in accusing the Defendant was


                                                  -15-
to be able to leave that home. He stated that it was a tactical decision not to call Frances Kimbrell
to testify because he was unsure what she would say regarding the night she left the home. He
testified that he did not know about Lonnie Kimbrell and the charges that were brought against him.

        Regarding Danielle Kimbrell, counsel explained that he did not call her to testify for tactical
reasons. The trial court also noted that Danielle Kimbrell’s testimony probably would not have
affected the jury’s verdict. The trial court stated that counsel was not ineffective for failing to call
James Kimbrell or Danny Kimbrell to testify as character witnesses. According to the trial court,
counsel explained why he did not call family members to testify.

         The trial court found that counsel was not ineffective for failing to cross-examine M.K. about
her diary. The court stated that it was a tactical decision by counsel that was “consistent with the
defense theory at trial.” The trial court noted that there was “no showing . . . from review of the
diary or . . . any other evidence, that this would . . . have prejudiced [the Defendant] . . . or the case
at all.”

        However, we conclude that counsel’s strategy was deficient because it was founded on an
inadequate understanding of Tennessee Rule of Evidence 412. We further conclude that inadequate
preparation is responsible for trial counsel’s lack of understanding of Rule 412. An abundance of
legal authority pertaining to Rule 412 was available to counsel prior to trial. Counsel should have
been very familiar with possible situations in this case that would “open the door” for the
admissibility of such evidence. Although evidence of a victim’s past sexual experiences or sexual
reputation is generally not admissible, such evidence may be admissible to rebut or explain medical
or scientific testimony. Tenn. R. Evid. 412(c)(4)(i).

        Tennessee Rule of Evidence 412 provides that evidence of a sex offense victim’s reputation
and specific instances of sexual behavior are generally inadmissible, with certain exceptions. Tenn.
R. Evid. 412(b). Evidence of specific instances of conduct relative to the victim’s sexual behavior
with persons other than the defendant is admissible if offered to rebut or explain medical or scientific
testimony. Tenn. R. Evid. 412(c)(4)(i). The State may open the door for evidence concerning a
victim’s prior sexual behavior by presenting expert evidence of an injured hymen or other evidence
indicating that a victim has been sexually penetrated. See generally Tague v. Richards, 3 F.3d 1133
(7th Cir.1993); United States v. Begay, 937 F.2d 515 (10th Cir.1991).

        In order for Rule 412 evidence to be admissible, the defendant must first file and serve a
written motion to offer such evidence no later than ten days before trial is scheduled to begin, with
such motion containing a written offer of proof of the specific evidence and the defendant’s purpose
in introducing it. Tenn. R. Evid. 412(d)(1).2 The court must then hold a hearing outside the hearing
of the public and the jury to determine whether it will allow admission of the evidence by balancing


2
  Ho wever, the mo tion may be m ade at a later time if the court determines that the ev idenc e is newly discovered and
could not have been discovered ea rlier through due d iligence or that the issue related to the evidence is newly arisen.
Tenn. R. Evid. 412 (d)(1)(i).

                                                         -16-
the probative value of the evidence with its unfair prejudice to the victim. Tenn. R. Evid. 412(d)(2),
(4).

        Trial counsel testified at the hearing on the motion for new trial that he could not foresee the
prosecution “open[ing] the door” to allow testimony of M.K.’s sexual activities with others to be
introduced. However, trial counsel was aware prior to trial of the medical evidence to be introduced
by the State. Trial counsel also knew that M.K. maintained she had not had sexual intercourse with
anyone but the Defendant; she told him so herself when he interviewed her prior to trial. Moreover,
the door actually was opened. First, M.K. testified that she had never had sex with anyone but the
Defendant. It was opened again when the medical evidence was introduced. It was opened, yet
again, during cross-examination of the Defendant:
        Q:      And I believe you told Mr. Lyttle here that you weren’t aware of any
        opportunity, where [M.K.] would have been able to have sex with any boys
        unless she done it while she was at school, isn’t that what you told him?
        A:      Yes, pretty much so, I believe that is correct.
        Q:      And that would be . . . still be true today, you are not aware of any
        other times she would have had sex with anybody?
        A:      I have found out a lot of things since she left.

         Trial counsel failed to follow up on any of those occasions. We conclude that counsel’s
failure to recognize that this evidence would be presented, thus “opening the door,” indicates that
trial counsel’s representation fell below the range of competence demanded of attorneys in criminal
cases.

        In State v. Brown, 29 S.W.3d 427 (Tenn. 2000), our supreme court reversed an aggravated
rape conviction because the defendant was denied the opportunity to present to the jury critical
evidence concerning statements that the minor female victim had sexual intercourse with an
adolescent male during the time period in which the defendant was alleged to have raped the victim.
See id. at 431, 436. In Brown, as in this case, the State’s case against the defendant consisted of the
testimony of the alleged victim together with the State’s expert medical proof. The Brown decision
includes the following language, which we believe applies directly to the instant case:
        Excluding the proffered evidence essentially deprived Brown of an opportunity to
        present to the jury critical evidence of an alternative explanation for the
        complainant’s hymenal injury. In the absence of this evidence, the jury no doubt
        attributed the complainant’s physical condition to Brown’s alleged criminal conduct.
        As previously noted, when the prosecution relies upon evidence of a complainant’s
        physical condition in a sexual assault/abuse case involving an underage rape
        complainant, defense evidence that provides an alternative explanation for the
        condition is particularly critical. Indeed, the only evidence which made this case
        more than a pure credibility contest was the State’s expert proof of physical injury
        to the complainant. Significantly, the State’s own medical expert conceded on cross-
        examination that the physical injury he observed was consistent with the complainant
        engaging in a consensual sexual encounter with an adolescent male. Under such


                                                 -17-
        circumstances, depriving the defendant of the right to present critical, reliable hearsay
        evidence of an alternative explanation for the injury is constitutional error. We are
        unable to conclude that error was harmless beyond a reasonable doubt in this case.
Id. 435.

        It is important to note that in our view the Rule 412 evidence that counsel failed to present
was not inadmissible under other evidentiary rules. Two witnesses testified in post-trial hearings that
they had sex with the victim. One witness testified that the victim told her that she (the victim) had
sex with Jessie Brown, which is a prior inconsistent statement by the victim. Another witness
testified that the victim inquired about “sexual techniques” to be utilized by the victim with the
victim’s boyfriend, which is also arguably a prior inconsistent statement by the victim. Finally, the
victim’s knowledge of her cousin’s accusations of sexual abuse against a foster parent and the
resulting removal of the cousin from the home is certainly relevant as to the issue of the victim’s
motive for making the accusations against the Defendant.

         We note that the trial court found that the testimony of Will Campbell and Jessie Brown was
not credible, and we are mindful that questions concerning the credibility of witnesses and the weight
and value to be given to their testimony are generally resolved by the trial court rather than this court.
State v. Brown, 6 S.W.3d 453, 461 (Tenn. 1999). However, in light of the abundance of Rule 412
evidence that should have been presented to the jury for its consideration, we conclude that the
deficiency in counsel’s performance was prejudicial in terms of rendering a reasonable probability
that the result of the trial was unreliable. Strickland, 466 U.S. at 694. Although the trial court
determined that counsel chose not to present some Rule 412 evidence for strategic reasons, we note
that deference to matters of strategy and tactical choices applies only if the choices are informed ones
based upon adequate preparation. Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997). As we have
stated, trial counsel was not adequately informed or prepared with regard to the Rule 412 issues.
Further, the issue of counsel’s effectiveness is reviewed under a de novo standard with no
presumption of correctness. Fields v. State, 40 S.W.3d 450, 457 (Tenn. 2001).

        We believe the prejudicial effect of trial counsel’s deficient representation is demonstrated
by the emphasis placed on the lack of evidence of any prior sexual activity of the victim. During
closing argument, the prosecutor stated:
                 Sue Ross, who is an expert in the area of doing physical examinations on
        abused children, to determine what injuries and how they were suffered, and how -
        she can explain that and how that relates to whether or not a crime has been
        committed.
                 She told you that on the 7th day of January of 1998, after this was reported,
        that she examined [M.K.]. And she can say - [M.K.] has suffered a penetrating
        injury, trauma to the vagina. Which indicates that [M.K.] has had sexual intercourse.
        So, this - we know that [M.K.] has had sexual intercourse.
                 Now, [M.K.] tells you that prior to January 7th, 1998, when [M.K.] was
        examined by Sue Ross, [M.K.] never had sex with anyone but that man right there,



                                                  -18-
       James Kimbrell. That is the only man [M.K.] ever had sex with before [M.K.] was
       examined.
               There has not been one iota of proof that [M.K.] had sex with anyone before
       that date, except James Kimbrell. And Mr. Kimbrell himself said - I don’t know
       when [M.K.] would have had a chance to have seen a boy except at school. And we
       all know from his testimony and everybody’s testimony - and almost in agreement
       here, that he kept all of these children under close ramp and guard. They didn’t go
       anywhere except to church and school. And even we later know that [M.K.] was
       home schooled.
               Only he had the opportunity. And the only proof that [M.K.] had had sex
       with anyone before January 7th, 1998, was [M.K.’s] testimony that it was Mr.
       Kimbrell and that was the only person.

        Because there was a reasonable probability that the result of the trial would have been
different had the jury heard the Rule 412 evidence, the Defendant was denied his constitutional right
to effective assistance of counsel. The failure of trial counsel to render effective representation
prejudiced the Defendant and prevented him from receiving a fair trial with a reliable result.
Accordingly, we must reverse the convictions and remand for a new trial. However, we will address
the remaining issues in this appeal.

                                 B. Newly-Discovered Evidence

         The Defendant argues that the trial court erred by denying his motion for a new trial based
on newly discovered evidence. Specifically, the Defendant argues that information that M.K. had
sexual relations with boys other than the Defendant constitutes newly discovered evidence that
entitles him to a new trial. In addition, the Defendant argues that he should be allowed to introduce
evidence that M.K. was interested in the outcome of a case involving similar allegations against the
Defendant’s brother.

       A new trial on the basis of newly-discovered evidence should be granted in cases where (1)
the defendant has been reasonably diligent in obtaining evidence, (2) the materiality of the new
evidence is apparent, and (3) the evidence is likely to change the result of the trial. State v.
Singleton, 853 S.W.2d 490, 496 (Tenn. 1993). In order to be entitled to a new trial based on newly-
discovered evidence, a defendant must demonstrate that all three prongs of the test have been met.
See State v. Nichols, 877 S.W.2d 722, 737 (Tenn. 1994).

        We conclude that the Defendant failed to show that he was reasonably diligent in obtaining
this evidence. Trial counsel knew before trial that the Defendant and other members of his family
had reason to believe that M.K. had engaged in sexual relations with other juvenile males. The
record shows that the allegations against the Defendant were made in November 1997, the
indictment was handed down in May 1998, and the trial was held in September 1999, allowing the
Defendant ample time to explore alternate theories. Two of the new witnesses were found within
two months of the trial, in time for the sentencing hearing in November 1999. Because the


                                                -19-
Defendant has not met the first prong of the test pertaining to his request for a new trial based on
newly-discovered evidence, this issue is without merit.

                             C. Evidence of Uncharged Sexual Offenses

        The Defendant argues that the trial court erred by allowing the State to introduce testimony
concerning uncharged offenses alleged to have occurred during the same period of time as the fifteen
specific incidents charged in the indictment. Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action in conformity with the character
trait. Tenn. R. Evid. 404(b). It may, however, be admissible for other purposes. Id.

        In State v. Rickman, 876 S.W.2d 824, 829 (Tenn. 1994) the Tennessee Supreme Court held
that there is no general “sex crime” exception to the general rule against admitting evidence of other
crimes. see also State v. Burchfield, 664 S.W.2d 284, 287 (Tenn. 1984). However, the Rickman
court did recognize that, as a limited exception, the State should be allowed some latitude in the
prosecution of criminal acts committed against young children who are frequently unable to identify
a specific date on which a particular offense was committed. Rickman, 876 S.W.2d at 828.

         The State argues that the Defendant waived his right to appeal this issue by failing to object
to the testimony at trial. We agree. By not objecting at trial, the Defendant “failed to take whatever
action was reasonably available to prevent or nullify the harmful effect of an error.” Tenn. R. App.
P. 36(a). “When a party does not object to the admissibility of evidence, . . . the evidence becomes
admissible notwithstanding any other [r]ule of [e]vidence to the contrary, and the jury may consider
that evidence for its ‘natural probative effects as if it were in law admissible.’” State v. Smith, 24
S.W.3d 274, 280 (Tenn. 2000) (quoting State v. Harrington, 627 S.W.2d 345, 348 (Tenn. 1981). In
the absence of a contemporaneous objection to proffered evidence in a criminal prosecution, the
evidence is competent, and any complaint about the admission of such evidence is waived. State v.
Hooper, 695 S.W.2d 530, 536 (Tenn. Crim. App. 1985).

         Further, with regard to brief testimony of the victim pertaining to incidents allegedly
occurring in Putnam County prior to the first incidents alleged in the indictment, the trial court stated
that it “gave an exhaustive instruction to the jury that they were not to consider any action that
occurred outside of Fentress County in this case.” There is a presumption that the jury complied
with the court’s instruction. Frazier v. State, 566 S.W.2d 545, 551 (Tenn. Crim. App. 1977); Bennett
v. State, 530 S.W.2d 788, 793 (Tenn. Crim. App. 1975); Craig v. State, 524 S.W.2d 504, 508 (Tenn.
Crim. App.1974). We cannot conclude that the testimony “more probably than not affected the
judgment” in this case. Tenn. R. App. P. 36(b); see also Tenn. R. Crim. P. 52(a). Therefore, we find
this issue without merit.

                                             D. Severance

        The Defendant argues that the trial court erred by not severing the offenses in this case. A
trial court’s denial of a motion for severance will be reversed only when there has been an abuse of


                                                  -20-
discretion. State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999). This Court will not interfere with the
exercise of this discretion unless it appears on the face of the record that the accused was prejudiced
by the trial court’s ruling. State v. Wiseman, 643 S.W.2d 354, 362 (Tenn. Crim. App. 1982).
Whether severance should be granted “depends upon the facts and circumstances involved in the
various crimes that are charged.” State v. Morris, 788 S.W.2d 820, 822 (Tenn. Crim. App. 1990).

       Rule 14 of the Tennessee Rules of Criminal Procedure provides as follows: “If two or more
offenses have been joined or consolidated for trial . . . , the defendant shall have a right to a
severance of the offenses unless the offenses are part of a common scheme or plan and the evidence
of one would be admissible upon the trial of the others.” Tenn. R. Crim. P. 14(b)(1). To avoid
severance, both portions of the rule must be satisfied. See State v. Hallock, 875 S.W.2d 285, 289
(Tenn. Crim. App. 1993).

         The first prong of Rule 14(b)(1) of the Tennessee Rules of Criminal Procedure requires that
the trial court find a common scheme or plan. In Tennessee, there are three categories of common
scheme or plan evidence: (1) evidence showing a distinctive design or signature crime; (2) evidence
demonstrating a larger, continuing plan or conspiracy; and (3) evidence that the offenses are part of
the same transaction. State v. Moore, 6 S.W.3d 235, 240 (Tenn. 1999). “Before multiple offenses
may be said to reveal a distinctive design, . . . the ‘modus operandi employed must be so unique and
distinctive as to be like a signature.’” Id. (citing State v. Carter, 714 S.W.2d 241, 245 (Tenn. 1986)).

         However, the Tennessee Supreme Court has noted that
         “the mere existence of a common scheme or plan is not a proper justification for
         admitting evidence of other crimes. Rather, admission of evidence of other crimes
         which tends to show a common scheme or plan is proper to show identity, guilty
         knowledge, intent, motive, to rebut a defense of mistake or accident, or to establish
         some other relevant issue. Unless expressly tied to a relevant issue, evidence of a
         common scheme or plan can only serve to encourage the jury to conclude that since
         the defendant committed the other crime, he also committed the crime charged.”
Id. at 239 n.5 (quoting State v. Hallock, 875 S.W.2d 285, 292 (Tenn. Crim. App. 1993)). This court
has also stated that “a common scheme or plan for severance purposes is the same as a common
scheme or plan for evidentiary purposes.” Id. at 240 n.7. Thus, Tennessee Rule of Evidence 404(b)
is also relevant to our analysis of this issue. See State v. McCary, 922 S.W.2d 511, 513-14 (Tenn.
1996).

        The second prong of Rule 14(b)(1) of the Tennessee Rules of Criminal Procedure requires
that the evidence of each of the offenses be admissible at the trial of the other. Evidence that the
accused committed crimes independent of those for which he is on trial is generally inadmissible
because such evidence lacks relevance and invites the finder of fact to infer guilt from propensity.
See Moore, 6 S.W.3d at 239; see also Tenn. R. Evid. 404(b). However, evidence of other crimes,
wrongs, or acts may be admissible for other purposes. Id. The “primary inquiry” in any severance
case is whether the evidence of one offense would be admissible in the trial of the other if the two
offenses remained severed. State v. Burchfield, 664 S.W.2d 284, 286 (Tenn. 1984).


                                                 -21-
         In this case, the Defendant was indicted on thirty-two different charges. The Defendant filed
a motion to sever the charges of reckless endangerment and reckless driving from the sexual
offenses, which was granted. However, counsel did not move to sever the remaining sexual offenses
from each other. At the beginning of trial, the court noted that the parties agreed that there were
actually twenty-five complete charges against the Defendant, including five counts of rape of a child,
five counts of rape, and fifteen counts of incest. The trial court later dismissed three charges. All
of the twenty-two remaining charges relate to thirteen specific incidents occurring between 1990 and
1997. Thus, the Defendant was tried on and convicted of four counts of rape of a child, five counts
of rape, and thirteen counts of incest. The factual basis for these convictions involved fourteen
specific incidents between 1990 and 1997.

         We conclude that the trial court did not err by not severing the charges against the Defendant.
We note that the Defendant did not file a motion for severance of the sexual offenses, while
specifically moving for a severance of the two non-sexual offenses. Thus, the Defendant has waived
this issue. See Tenn. R. Crim. P. 14(a); Spicer v. State, 12 S.W.3d 438, 443 (Tenn. 2000).

                                         E. Doctrine of Election

        The Defendant argues that there was no proper “election” by the State and that this error was
compounded by the failure of the trial court to properly instruct the jury on how they were to
consider the evidence of the unindicted offenses. The doctrine of election requires the State to elect
a set of facts when it has charged a defendant with one offense, but there is evidence of multiple
offenses. State v. Brown, 992 S.W.2d 389, 391 (Tenn. 1999). Where evidence of unindicted
offenses is introduced at trial, it is “the duty of the trial judge to require the State, at the close of its
proof-in-chief, to elect the particular offense . . . upon which it would rely for conviction, and to
properly instruct the jury so that the verdict of every juror would be united on the one offense.”
Burlison v. State, 501 S.W.2d 801, 804 (Tenn. 1973).

        The Tennessee Supreme Court has held that election is required for three fundamental
reasons: “[f]irst, to enable the defendant to prepare for and make his defense to the specific charge;
second, to protect him from double jeopardy by individualization of the issue . . . [;] and third, so that
the jury’s verdict may not be a matter of choice between offenses, some jurors convicting on one
offense and others, another.” Id. at 803.

        “The necessity of requiring the State to make an election of the particular offense it will rely
on for conviction . . . is . . . fundamental, immediately touching the constitutional rights of an
accused, and should not depend upon his demand therefor.” Id. at 804. Although the federal
constitution’s requirement of unanimity among jurors has not been imposed on the states through
the Fourteenth Amendment, “there should be no question that the unanimity of twelve jurors is
required in criminal cases under our state constitution.” State v. Brown, 823 S.W.2d 576, 583 (Tenn.
Crim. App. 1991). A defendant’s right to a unanimous jury before conviction requires the trial court
to take precautions to ensure that the jury deliberates over the particular charged offense, instead of



                                                    -22-
creating a “patchwork verdict” based on different offenses in evidence. See id. (citing United States
v. Duncan, 850 F.2d 1104, 1110 (6th Cir. 1988)).

        The State argues that the record clearly demonstrates that the closing argument focused the
jury’s attention on the exact acts upon which the State asked the jury to deliberate in determining the
Defendant’s guilt. The State maintains that this constituted a de facto election. The State relies on
State v. William Dearry, No. 03C01-9612-CC-00462, 1998 Tenn. Crim. App. LEXIS 165 (Tenn.
Crim. App., Knoxville, Feb. 6, 1998) to support the proposition that the State can, in effect, elect the
proof upon which it sought conviction, even though the trial court did not explicitly require an
election. Id. at * 32.

         We agree, and even the Defendant concedes, that the prosecutor did an admirable job of
trying to “sort this out” during his closing argument to the jury. In our view, the prosecutor during
argument did in fact effectively elect the proof upon which the State wished to proceed in each count
of the indictment. The Defendant properly asserts that the prosecutor’s argument is neither evidence
nor a substitute for a proper jury instruction. Both an election by the State and a jury instruction are
required to safeguard the accused’s constitutional rights. See Burlison 501 S.W.2d at 803. Our
review of the record shows that the trial judge failed to require the State to make an election and
failed to give the jury any instruction in how it was to consider the proof presented of the unindicted
offenses. However, we conclude that any error pertaining to this issue was harmless beyond a
reasonable doubt under the circumstances of this case. We are convinced that the Defendant
received a unanimous verdict in each count. This issue is without merit.

                                  F. Closing Argument by the State

       Finally, the Defendant argues that the District Attorney improperly argued to the jury that the
defense attorney “needs to explain the situation that we read about all the time in the papers where
women have - who are in their thirties, their forties, finally come forward and talk about how they
were sexually abused for years . . . .” Immediately after this statement, the defense objected and
argued that the statement was “outside the facts of this case.” The trial court then stated,
       Ladies and gentlemen, this is closing argument. Now, what we have here is not
       evidence. We have the lawyer’s interpretations and their explanations of their
       respective theories in this case. What the lawyers say at this point is not evidence.
       It is merely there to help you. You can factor in the evidence that you heard
       yesterday and that is what you are to consider this case on. But they are here to
       explain what . . . their side is. I am going to overrule the objection, but you can
       respond.

        Lawyers are prohibited from arguing facts which are outside the record. State v. Beasley, 536
S.W.2d 328, 330 (Tenn. 1976). Where argument is improper, the established test for determining
whether there is reversible error is “whether the improper conduct could have affected the verdict
to the prejudice of the defendant.” Harrington v. State, 385 S.W.2d 758, 759 (Tenn. 1965); State v.
Bigbee, 885 S.W.2d 797, 809 (Tenn. 1994). In determining whether the improper argument


                                                 -23-
prejudiced the defendant, the appellate court must consider: “1) the conduct complained of, viewed
in light of the facts and circumstances of the case; 2) the curative measures undertaken by the court
and the prosecution; 3) the intent of the prosecutor in making the improper argument []; 4) the
cumulative effect of the improper conduct and any other errors in the record; and 5) the relative
strength and weakness of the case.” State v. Middlebrooks, 995 S.W.2d 550, 560 (Tenn.1999); State
v. Bowers, 77 S.W.3d 776, 788 (Tenn. Crim. App. 2001).

        In this case, defense counsel objected immediately after the State made the remarks. The trial
court immediately gave a curative instruction, and a similar instruction was included in the jury
charge. We agree with the State that the Defendant has failed to show that the State’s argument was
grossly improper or that the Defendant was prejudiced by it in light of the instruction by the trial
court. While the State’s comments may not have been properly worded, we find any error regarding
the State’s contested statement during closing arguments to be harmless. Defense counsel made a
point during examination of M.K. of eliciting testimony that she had not reported any sexual abuse
to anyone over the years, even though she had many opportunities to do so and even though she
made other complaints to the authorities about her adoptive mother.

        For the reasons set forth in the discussion above, we conclude that the Defendant was denied
effective assistance of counsel. We, therefore, REVERSE the Defendant’s convictions and
REMAND this case to the Fentress County Criminal Court for further proceedings consistent with
this opinion.


                                                       ___________________________________
                                                       ROBERT W. WEDEMEYER, JUDGE




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