         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                    August 15, 2001 Session

              STATE OF TENNESSEE v. RANDALL LLOYD HILL

                      Appeal from the Circuit Court for Cheatham County
                             No. 12439    Robert E. Burch, Judge



                    No. M2000-01731-CCA-R3-CD - Filed October 8, 2001


On July 18, 1997, the Defendant, Randall Lloyd Hill, was convicted of one count of incest. After
a sentencing hearing, the trial court imposed a sentence of five years to be served in the Department
of Correction. In this appeal as of right, the Defendant argues that (1) his incest conviction subjected
him to double jeopardy, (2) he was convicted solely on uncorroborated accomplice testimony, (3)
the trial court erred in allowing inappropriate opinion testimony from a child abuse investigator, and
(4) the Defendant was prejudiced by the prosecutor’s improper comments regarding the Defendant’s
decision not to testify. Because we conclude that the prosecutor improperly commented on the
Defendant’s election not to testify, we reverse the Defendant’s conviction and remand the case for
a new trial.

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

DAVID H. WELLES, J., delivered the opinion of the court, in which JOE G. RILEY and JAMES
CURWOOD WITT, JR., JJ., joined.

Michael J. Love, Clarksville, Tennessee, for the appellant, Randall Lloyd Hill.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General;
Dan Alsobrooks, District Attorney General; and Robert Wilson, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                              OPINION


        During Thanksgiving weekend in 1992, Kathy White’s family gathered at her home in
Cheatham County for a family reunion. Approximately twenty family members attended the reunion
at the White home. The house did not have beds for everyone so many family members slept on the
floor throughout the house. On the night of November 26, the Defendant, Ms. White’s brother,
decided to sleep outside in a large custom van equipped with a space heater and an electric blanket.
Ms. White’s fourteen year old daughter, the victim, also slept in the van that night. As the victim
was going to sleep, the Defendant began rubbing her arms and breasts stating that he would warm
her up. The victim asked the Defendant to stop, but he would not. The Defendant then began to rub
the victim’s stomach, unzipped her pants and penetrated her vagina with his finger. This continued
for about an hour, until the Defendant fell asleep and the victim went back inside the house.

        The victim did not inform anyone of the Defendant’s actions until two months later when she
discussed the abuse with her best friend; however, when confronted by school officials, she denied
any abuse. The victim continued to deny that she was abused during the next two years as she
moved in and out of treatment facilities due to drug and behavior problems as well as one attempted
suicide.

        After Thanksgiving of 1992, the victim’s grades dropped dramatically and she began
skipping school and using drugs. Prior to that, the victim was an A and B student with no history
of behavior problems. In 1994, during a therapy session at a treatment center, the victim admitted
that the Defendant had sexually abused her.

        During the investigation into the allegations made by the victim, the Defendant was
questioned near his home in Illinois and denied any wrongdoing. On May 29, 1996, the Defendant
was charged with one count of rape, one count of sexual battery, and one count of incest. The sexual
battery count was dismissed by the trial court, the jury acquitted the Defendant of the rape charge,
and the jury found the Defendant guilty of incest.

                                     DOUBLE JEOPARDY
       The Defendant first contends that he faced the threat of multiple punishments for the same
offense in violation of the double jeopardy clause of the Fifth Amendment to the United States
Constitution and Article I, section 10 of the Tennessee Constitution. Specifically, the Defendant
argues that by charging him with both rape and incest, the State was given two opportunities to
convict the Defendant of the same crime.

         The double jeopardy clauses of the Fifth Amendment to the United States Constitution and
Article I, section 10 of the Tennessee Constitution both protect against a second prosecution for the
same offense after conviction, a second prosecution for the same offense after an acquittal, and
multiple punishments for the same offense. State v. Mounce, 859 S.W.2d 319, 321 (Tenn. 1993).
Double jeopardy prohibits the State from “punishing twice, or attempting a second time to punish
criminally, for the same offense.” Metropolitan Government of Nashville and Davidson County v.
Miles, 524 S.W.2d 656, 660 (Tenn. 1975). The Defendant argues that the indictment he was tried
under violated double jeopardy because it exposed him to multiple punishments for the same offense
in that it charged him with both rape and incest arising out of the same sexual act.

       We first note that the Defendant was acquitted of the rape charge, and received only one
punishment for the incest charge. Therefore, he has not received multiple punishments for the same
offense. However, even if the threat of multiple punishments was sufficient to establish a double


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jeopardy violation, our case law clearly establishes that rape and incest are not considered the “same
offense” for double jeopardy purposes.

        In State v. Denton, 938 S.W.2d 373 (Tenn. 1996), our supreme court established a framework
for determining whether a defendant has received multiple punishments for the “same offense.” The
reviewing court must consider (1) the statutory elements of the offenses, (2) the evidence used to
prove the offenses, (3) whether there were multiple victims or discrete acts, and (4) the purposes of
the respective statutes. Id. at 381.

       In State v. Beauregard, 32 S.W.2d 681 (Tenn. 2000), our supreme court recently undertook
the Denton analysis to affirm a defendant’s conviction for rape and incest arising out of the same
evidence. In doing so, the court stated that

       [a] comparison of the statutory elements of rape and incest demonstrates that the
       elements are dissimilar. Rape, unlike incest, requires non-consensual sexual
       penetration accompanied by force or coercion; incest, unlike rape, requires that the
       victim be [related to] the defendant, regardless of whether the victim consented.


Id. at 683. The court noted that while the evidence used to establish the sexual penetration element
of both rape and incest will be the same, the evidence required to establish the other unique elements
of each crime will be different. Id. It is also clear that the policy objectives of the legislative
prohibition on rape and incest are different. Id. at 684. The only factor of the Denton analysis that
weighs in favor of rape and incest being the same offense is that the offense involved a single victim
and a single act. The Beauregard court found that factor alone insufficient to establish rape and
incest as the “same offense” for double jeopardy purposes. Beauregard, 32 S.W.2d at 684.
Accordingly, we find the Defendant’s double jeopardy challenge to be without merit.

                  UNCORROBORATED ACCOMPLICE TESTIMONY
       The Defendant also argues that he was convicted on the basis of uncorroborated accomplice
testimony. The Defendant contends that, because the jury acquitted him of the charge of rape, the
victim must have been a willing participant in the incest. We must disagree.

       In Tennessee, a conviction may not be based solely upon the uncorroborated testimony of an
accomplice. See State v. Shaw, 37 S.W.3d 900, 903 (Tenn. 2000); State v. Bigbee, 885 S.W.2d 797,
803 (Tenn.1994); Monts v. State, 214 Tenn. 171, 379 S.W.2d 34, 43 (Tenn.1964). Our supreme
court has described the nature of this requirement as follows:

       [T]here must be some fact testified to, entirely independent of the accomplice’s
       testimony, which, taken by itself, leads to the inference, not only that a crime has
       been committed, but also that the defendant is implicated in it; and this independent
       corroborative testimony must also include some fact establishing the defendant’s
       identity. This corroborative evidence may be direct or entirely circumstantial, and


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        it need not be adequate, in and of itself, to support a conviction; it is sufficient to
        meet the requirements of the rule if it fairly and legitimately tends to connect the
        defendant with the commission of the crime charged. It is not necessary that the
        corroboration extend to every part of the accomplice’s evidence.

Bigbee, 885 S.W.2d at 803 (quoting State v. Gaylor, 862 S.W.2d 546, 552 (Tenn.Crim.App.1993)).
Whether sufficient corroboration exists is a determination for the jury. See Shaw, 37 S.W.3d at 903;
Bigbee, 885 S.W.2d at 803.

      Furthermore, in incest cases, if a victim consents to the crime, then such victim is an
accomplice, and a conviction cannot be had on the victim’s unsupported testimony. See State v.
Wadkins, 754 S.W.2d 95, 99; Scott v. State, 207 Tenn. 151, 338 S.W.2d 581 (1960); Shelly v. State,
95 Tenn. 152, 31 S.W. 492 (1895).

        In the present case, there is no evidence that the victim was a willing participant in the incest.
The trial judge found as a matter of law that the victim was not an accomplice based upon the
complete lack of evidence that would support an inference that the victim was a willing participant
in the sexual act. Despite that finding, the trial judge charged the jury concerning the definition of
an accomplice and the necessity of corroborating evidence to support the testimony of an
accomplice.

       We also find no evidence that the victim was an accomplice to the Defendant’s act of incest.
The Defendant’s contention that his conviction was based solely on uncorroborated accomplice
testimony is without merit.



                                      OPINION TESTIMONY
        The Defendant also contends that the trial court erred by allowing Officer Floyd Duncan, the
child abuse investigator, to testify regarding the victim’s consistency and the victim’s symptoms of
child abuse syndrome.

      The admissibility of opinion testimony from lay witnesses is governed by Rule 701 of the
Tennessee Rules of Evidence, which states in relevant part:

        If a witness is not testifying as an expert, the witness’s testimony in the form of
        opinions or inferences is limited to those opinions or inferences which are
        (1) rationally based on the perception of the witness and
        (2) helpful to a clear understanding of the witness’s testimony or the determination
        of a fact in issue.




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Tenn.R.Evid. 701. As with most other evidentiary questions, the admissibility of opinion testimony
is a matter which largely rests within the sound discretion of the trial court. See State v. Ballard, 855
S.W.2d 557, 562 (Tenn.1993).

        Officer Duncan first testified that the victim’s comments made directly to him concerning
the abuse by the Defendant were all consistent. Officer Duncan was not giving an opinion, but
rather, stating as a fact, that the statements given to him by the victim were consistent. However,
even if we construe Officer Duncan’s testimony as opinion testimony, it was an opinion based on
his perception of the victim’s statements introduced in order to give the jury a clear understanding
of the thoroughness of Officer Duncan’s investigation as contemplated by Rule 701.

       The Defendant further contends that the trial court erred in allowing Officer Duncan to testify
regarding the victim’s symptoms of child abuse syndrome. During his testimony the following
exchange occurred between the District Attorney and Officer Duncan:

        Q:      All right. Now, are you familiar with some of the difficulties [the victim] has
                had since November of 1992, leading up through the end of 1994 or early
                1995?

        A:      (No audible response)

        Q:      Run-a-away--

        A:      Yes.

        Q:      –drugs?

        A:      As a matter of fact, the early case review that I did was based on her being,
                as I recall, hospitalized. That, certainly, was the initial contact that Social
                Services had with her. The mounting difficulties that she had, even from
                family members I talked with about how her behavior changed, did not seem
                extraordinary to me, knowing that this is something, in my experience, I run
                into time and time again, where kids get disruptive, they get angry, they feel
                out of control. They turn to drugs. They turn to alcohol. They do many
                behaviors that wind up getting them in trouble.

        Q:      Were there any intentional acts on your part or on Barbara Wallace’s part to
                delay this investigation for any reason?

        A:      No, sir.

        The Defendant made no objection at trial to Officer Duncan’s statement, therefore, any
objection to the statement on appeal has been waived. Accordingly, we find that the trial court did


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not abuse its discretion by allowing Officer Duncan’s testimony, especially in the absence of any
objection made by the Defendant.

                        IMPROPER ARGUMENT BY PROSECUTION
        Finally, the Defendant contends that the prosecutor made improper remarks during closing
arguments about the Defendant’s decision not to testify. Trial courts have substantial discretionary
authority in determining the propriety of final argument. Although counsel is generally given wide
latitude, courts must restrict any improper commentary. See Sparks v. State, 563 S.W.2d 564, 569
(Tenn.Crim.App. 1978). Closing arguments must be temperate, must be based upon evidence
introduced during trial, and must be relevant to the issues at trial. See State v. Sutton, 562 S.W.2d
820, 823 (Tenn. 1978).

        Most restrictions during final argument are placed upon the State due to the important role
the prosecutor plays as a representative of an impartial sovereign. See Berger v. United States, 295
U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1214 (1935). The State should refrain from argument
designed to inflame or incite the emotions of the jury and should restrict its commentary to the
evidence and issues at trial. See Coker v. State, 911 S.W.2d 357, 368 (Tenn.Crim.App. 1995). The
State should not comment unfavorably upon defense counsel or the trial tactics employed by the
defense at trial. See id.; see Dupree v. State, 410 S.W.2d 890, 892 (1967).

        A prosecutor is absolutely prohibited from commenting upon a decision made by the
defendant not to testify at trial. See Griffin v. California, 380 U.S. 609, 612, 85 S.Ct. 1229, 1232,
14 L.Ed.2d 106 (1965). Tennessee precludes such commentary, both by its constitution and by
legislative enactment. See Tenn. Const. Art. I § 9; Staples v. State, 89 Tenn. 231, 231, 14 S.W. 603,
603 (1890); Tenn. Code Ann. § 40-17-103. When a prosecutor improperly comments on a
defendant’s decision not to testify, an appellate court must consider whether the improper conduct
could have affected the verdict in a way that prejudiced the defendant. See Coker, 911 S.W.2d at
368, (quoting Harrington v. State, 385 S.W.2d 758, 759 (1965)). The factors to aid us in making this
determination are set forth in Judge v. State, 539 S.W.2d 340, 344 (Tenn.Crim.App. 1976). The
Judge factors, later adopted by our supreme court in State v. Buck, 670 S.W.2d 600, 609 (Tenn.
1984), require this court to 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 prosecutor;
        (3) the intent of the prosecutor in making the improper statement;
        (4) the cumulative effect of the improper conduct and any other errors in the record;
        and
        (5) the relative strength or weakness of the case.

Judge, 539 S.W.2d at 344.

        During the prosecution’s closing argument, the Assistant District Attorney repeatedly stated
that “the defendant has a constitutional right not to testify.” The prosecutor’s closing argument in


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this regard culminated with his comment that “the defendant has a right not to testify, and he’s
chosen to exercise that, and that’s fine, but that tells you a lot about the kind of individual you’re
dealing with, . . . .”

        Initially, we note that the Defendant made no objection to the prosecutor’s repeated
references to the Defendant’s failure to testify. However, under limited circumstances this Court
may consider an issue not formally preserved for appeal. See Tenn.R.Crim.P. 52(b). Under the
applicable standard, the error must constitute “plain error,” affecting a “substantial right” of the
accused. See State v. Adkisson, 899 S.W.2d 626, 639 (Tenn.Crim.App.1994). The determinative
factors regarding “plain error” are:
        (1) the record must clearly establish what occurred in the trial court;
        (2) a clear and unequivocal rule of law must have been breached;
        (3) a substantial right of the accused must have been affected;
        (4) the accused did not waive the issue for tactical reasons; and
        (5) consideration of the error is “necessary to do substantial justice.”
Id. at 641-42.

       In the present case, the record clearly indicates that the prosecutor commented several times
on the Defendant’s constitutional right against self-incrimination, and that a consideration of those
comments in light of the factors set forth in Judge is necessary to ensure substantial justice.

        The first Judge factor requires us to consider the prosecutor’s comments in light of the facts
and circumstances of the case. See Judge, 539 S.W.2d at 344. The Defendant was accused of rape
and incest. The victim was the only prosecutorial witness with any first hand knowledge of what
occurred between the Defendant and the victim during Thanksgiving of 1992. This Court cannot
say that the prosecutor’s references to the Defendant’s failure to testify and tell his version of the
events did not affect the jury’s verdict. It is reasonable to assume that such comments could have
the effect of removing the burden of proof beyond a reasonable doubt from the prosecution and
requiring the Defendant to explain why he is not guilty. This factor weighs in favor of the
Defendant.

       No curative measures were undertaken by the trial court or the prosecutor in the present case.
This factor also weighs in favor of the Defendant.

        In the present case, the third Judge factor, the intent of the prosecutor in making the improper
statement, is intertwined with the final two factors: the cumulative effect of the improper conduct,
any other errors in the record, and the relative strength or weakness of the case. See Judge, 539
S.W.2d at 344. As stated above, the victim’s testimony and her behavioral and emotional decline
were the only evidence presented against the Defendant. The case was not one where physical or
DNA evidence of abuse was available. Therefore, given the relative weakness of the prosecution’s
case, one must assume that the prosecutor’s improper comments were made with the intent of
influencing the jury in order to secure a conviction based in part on the fact that the Defendant did
not take the stand and deny the accusation. After he had already mentioned to the jury three times


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that the Defendant had exercised his right not to testify, the prosecutor appeared to make his point
quite obvious when he stated: “the defendant has a right not to testify, and he’s chosen to exercise
that, and that’s fine, but that tells you a lot about the kind of individual you’re dealing with, . . . .”

       Over one hundred years ago, our supreme court made the following observation about a
defendant’s right not to testify at his trial:
                This provision is in accord with the bill of rights, wherein it is provided that
       in all criminal prosecutions the defendant “shall not be compelled to give evidence
       against himself . . . .” The question here presented has arisen many times, and the
       decisions of the courts have been practically unanimous in holding that no argument
       to the jury based upon the failure of a defendant to testify is permissible.

Staples v. State, 89 Tenn. 231, 14 S.W. 603 (1890).

        Accordingly, we find that the prosecutor’s improper comments concerning the Defendant’s
failure to testify improperly prejudiced the Defendant by penalizing him for exercising his
constitutional right to remain silent. Therefore, the Defendant’s conviction for incest is reversed.

                                            CONCLUSION
        After a thorough review of the record, we conclude that the improper statements of the
prosecutor during closing arguments constitute reversible error. Accordingly, the judgment of the
trial court is reversed, and this case is remanded for a new trial.



                                                         ___________________________________
                                                         DAVID H. WELLES, JUDGE




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