                                                  FILED
          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                 February 2, 1996
                           AT NASHVILLE
                                                Cecil W. Crowson
                      NOVEMBER 1993 SESSION    Appellate Court Clerk


STATE OF TENNESSEE,             )
                                )    No. 01C01-9307-CC-00224
     Appellee,                  )
                                )    Williamson County
v.                              )
                                )    Hon. Henry Denmark Bell, Judge
CATHERINE WARD,                 )
                                )    (Promoting Prostitution)
     Appellant.                 )



For the Appellant:                   For the Appellee:

David L. Raybin                      Charles W. Burson
Attorney at Law                      Attorney General & Reporter
424 Church Street, 22nd Floor
Nashville, TN 37219                  Christina S. Shevalier
(Appeal Only)                        Assistant Attorney General
                                     450 James Robertson Parkway
R. Ray Galbreath                     Nashville, TN 37243-0493
Attorney at Law
901 Stahlman Building                Joseph D. Baugh
Nashville, TN 37201                  District Attorney General
(Trial Only)
                                     Timothy L. Easter
                                     Asst. District Attorney
                                     General
                                     Post Office Box 937
                                     Franklin, TN 37065




OPINION FILED:____________________________________


REVERSED & REMANDED


Penny J. White
Judge
                              O P I N I O N


           Appellant, Catherine Ward, was convicted of promoting

prostitution, a Class E felony, by a jury.           The trial court found

that appellant was a standard offender and imposed a Range I

sentence consisting of a fine of $3,000 and confinement for one

year in the Department of Correction.



           Appellant presents seven issues for review. She contends

that:

           1.   the state failed to prove that
                appellant was knowingly promoting
                prostitution and that the conduct
                constituted sexual activity within
                the meaning of the statute;

           2.   the   trial    court    abused   its
                discretion    in     permitting    a
                prosecution witness to testify that
                two prostitutes entered guilty pleas
                in violation of Tennessee Rules of
                Evidence 803(22);

           3.   the   trial    court    abused   its
                discretion    in     permitting    a
                prosecution witness to testify that
                a prostitute told her that appellant
                was her "boss";

           4.   the search of appellant's purse and
                motor vehicle violated the Fourth
                Amendment to the United States
                Constitution and Article 1, § 7 of
                the Tennessee Constitution;

           5.   the   trial    court   abused   its
                discretion in permitting a Davidson
                County officer to testify to the
                results of his investigation into
                the   prostitution    business   in
                Davidson County;

           6.   she was denied her constitutional
                right to the effective assistance of
                counsel by trial counsel; and

           7.   the trial court committed error in
                refusing to suspend appellant's
                sentence and grant her probation.



           After a careful review of the record, we find that the

glaring   deficiencies   of   trial       counsel   denied   appellant   her


                                      2
constitutional right to a fair trial.             Appellant's conviction must

be reversed and the case remanded for a new trial.



            In view of our holding, we will discuss issues 2, 3, 4,

5, and 6 in connection with the ineffective assistance of counsel.

Since the case is being remanded for new trial, we need not

consider whether the trial court erred by sentencing appellant to

serve one year in the state penitentiary rather than granting

probation or some other form of alternative sentencing.1



                                   I.   FACTS

            Catherine Ward was the owner and operator of a dating and

escort    service   in     Nashville.       She    had   thirty-nine     different

listings in the yellow pages of the Nashville phone book. Although

each listing was in a different name and had a different telephone

number,    all    of      the   thirty-nine       telephone    numbers     reached

appellant's place of business and were answered by the same person.



            In this case, on the evening of October 3, 1991, Jimmy

Hester, a detective, called Beth's Touch of Class.                   The telephone

number    was    listed    in   appellant's       name   and   was    answered   at

appellant's place of business.          The officer made arrangements for

two women to come to his room at the Hilton Hotel in Brentwood.

After several telephone calls, Sherman Ann "Sherrie" Swartz and

April Lynn Ashworth came to the room.             Swartz collected the agreed

amount of $350.        After undressing in the bathroom, the two women

     1
      We note, however, that the trial judge failed to follow the
guidelines in State v. Ashby, 823 S.W.2d 166 (Tenn. 1992).      In
fact, the trial judge never considered any form of alternative
sentencing. As a Range I, standard offender, sentenced for a Class
E felony to a one-year sentence, appellant is presumed to be a
favorable candidate for alternative sentencing absent evidence to
the contrary.   Tenn. Code Ann. § 40-35-102(6)(1995 Supp.).     If
appellant is convicted upon retrial, the trial court should
consider the criteria for alternative sentencing found in the
statutes and should place findings on the record.

                                        3
lay in bed facing each other.           They had not touched one another

when Hester signalled officers in an adjoining room to arrest the

two women. The women were arrested, booked at the Brentwood Police

Department, and issued citations for prostitution.             Agent Hester

testified that the two women later pled guilty to prostitution, a

misdemeanor offense.2



           Later    that      night,   Mary   McGaughy,   a   detective   who

participated in the sting, saw Swartz in the parking lot of the

Hilton Hotel.      Swartz was standing beside a car talking to the

driver. When McGaughy asked Swartz what she was doing, Swartz told

her that she was talking to her boss.             McGaughy told Swartz to

leave the parking lot.         McGaughy learned that appellant was the

driver of the motor vehicle.           She retained appellant's driver's

license until she informed the Brentwood police officers who were

participating      in   the    investigation.       An    officer    searched

appellant's purse and seized a pager, an address book, a quantity

of cash, and appellant's business cards.          A search of the interior

and trunk of the vehicle uncovered nothing of interest.             Appellant

was arrested and charged with promoting prostitution.



           Over objection, Sergeant Joe Blakley of the Metropolitan

Police Department testified at length concerning his involvement in

a   state-wide   task-force      investigating   prostitution.       He   also

detailed the results of a search he conducted at appellant's

business address approximately one year prior to appellant's arrest



     2
     Only Agent Hester testified to these events. The person with
whom he spoke at Beth's Touch of Class was never identified. The
second woman who returned his calls was identified only as
"Crystal."   She did not testify. Neither Swartz nor Ashworth
testified at trial.   The state entered a video tape made while
Swartz and Ashworth were in the hotel room into evidence. (The
camera was disguised as a lamp.).

                                        4
in this case.       Sergeant Blakley observed the Swartz and Ashworth

arrest but did not observe the arrest or search of appellant.



            Appellant described her business as "legitimate."                   A

written agreement which she had with each person who worked for her

designated    the    person   as     an   independent    contractor,    not   an

employee, and provided that the person would not engage in any

illegal conduct. The women she employed were engaged to escort men

to parties, dinners, and other social events and                  to provide

conversation and companionship.           Occasionally, the women acted as

models.     On the night of the arrests, appellant was advised that

Swartz and Ashworth escorted a man to a dinner party at the Hilton.

When Swartz and Ashworth failed to check in with the dispatcher and

did not respond to their pagers, appellant was notified.               She then

went to the hotel to see if they needed assistance.               Her arrest

followed.



                               II.    DISCUSSION

                     A.    SUFFICIENCY OF THE EVIDENCE

            When    an    accused    challenges    the   sufficiency    of    the

convicting evidence, this court must review the record to determine

if the evidence adduced at the trial is sufficient "to support the

finding by the trier of fact of guilt beyond a reasonable doubt."

Tenn. R. App. P. 13(e).         This rule is applicable to findings of

guilt based upon direct evidence, circumstantial evidence, or a

combination of direct and circumstantial evidence. State v. Dykes,

803 S.W.2d 250, 253 (Tenn. Crim. App.), perm. to appeal denied,

(Tenn. 1990).



            In determining the sufficiency of the evidence, this

court does not reweigh or reevaluate the evidence.                     State v.

                                          5
Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).                   Nor may this court

substitute its inferences for those drawn by the trier of fact from

circumstantial evidence.          Liakas v. State, 286 S.W.2d 856, 859

(Tenn. 1956).       To the contrary, this court is required to afford

the   State    of   Tennessee    the   strongest     legitimate      view   of   the

evidence contained in the record as well as all reasonable and

legitimate inferences which may be drawn from the evidence.                   State

v. Cabbage, 571 S.W.2d at 835.



              Questions concerning the credibility of witnesses, the

weight and value to be given the evidence, as well as all factual

issues raised by the evidence are resolved by the trier of fact,

not this court.        Id.     In State v. Grace, 493 S.W.2d 474 (Tenn.

1973), our Supreme Court said:               "A guilty verdict by the jury,

approved    by   the   trial    judge,   accredits     the    testimony     of   the

witnesses for the State and resolves all conflicts in favor of the

theory of the State."        State v. Grace, 493 S.W.2d at 476.



              Since a verdict of guilt removes the presumption of

innocence     and   replaces    it   with    a   presumption    of   guilt,      id.,

appellant has the burden of illustrating why the evidence contained

in the record is insufficient to support the verdicts returned by

the trier of fact.       State v. Tuggle, 639 S.W.2d 913, 914 (Tenn.

1982).   This court will not disturb a verdict of guilt due to the

sufficiency of the evidence unless the facts contained in the

record, and any inferences which may be drawn from the facts, are

insufficient, as a matter of law, for a rational trier of fact to

find the accused guilty beyond a reasonable doubt.                      State v.

Tuggle, 639 S.W.2d at 914.




                                         6
              In this case, the evidence contained in the record is

sufficient to support a finding by a rational trier of fact that

appellant was guilty of promoting prostitution beyond a reasonable

doubt.    Tenn. R. App. P. 13(e);         Jackson v. Virginia, 443 U.S. 307,

(1979).       Agent Hester called the business admittedly owned by

appellant and spoke to a "dispatcher."                   "Crystal" returned his

call.    When the agent requested two women, Crystal said she did not

know what to charge but she said she would find out and call Hester

back with a price.      The dispatcher in turn called Hester, advised

him that the woman who called him was not comfortable doing what

Hester wanted, and that the company was trying to find two "girls"

who would meet his requirements.3                 Later, Swartz and Ashworth

appeared at Hester's room.       Hester paid Swartz for the services to

be performed, the two women undressed, and climbed into bed.



              Appellant admitted that she was the sole owner and

proprietor     of   Beth's   Touch   of       Class,   one   of   the   thirty-nine

entities that comprised the escort service.                  When a "gentleman"

called any of the thirty-nine numbers, the call reached the same

dispatcher. On October 3, 1991, the fees charged were $120 for a

half hour and $175 for a full hour of one girl's time, and Hester

paid the two women a total of $350.                    Although the women never

engaged in any sexual acts with each other or with Hester, their

activities certainly support an inference that they were about to

engage in sexual activity and that the escort service was aware of

that activity.       When all of the evidence presented at trial is




          3
         Neither the dispatcher nor the officer made specific
reference to any sexual activity. However, the circumstances and
the double entendres contained in the conversations are sufficient
to support the inference that Hester was seeking to watch two
"girls" perform lesbian sex.

                                          7
considered, the evidence is sufficient to support appellant's

conviction for promoting prostitution beyond a reasonable doubt.



               B. INEFFECTIVE ASSISTANCE OF COUNSEL

          After her conviction, appellant obtained new counsel. In

a motion for new trial, counsel contended that, among other errors,

appellant had been denied effective assistance of counsel at trial

because of the following deficiencies in representation:

          1.   the failure to file a pretrial
               motion to suppress as evidence a
               pager, address book, business cards,
               and approximately $787 in cash,
               which were obtained from appellant's
               purse by a Brentwood police officer;

          2.   the failure to object to Jimmy
               Hester's testimony that the two
               women who came to the hotel on the
               evening   in   question  had   been
               convicted of prostitution following
               their guilty pleas to the offense;

          3.   the failure to object to the
               testimony of Mary McGaughy that
               Sherman Ann "Sherrie" Swartz told
               her that she was talking to her
               "boss"   while  standing   next to
               appellant's motor vehicle;

          4.   the failure to object to the
               testimony given by Sergeant Joe
               Blakley of the Metropolitan Police
               Department; and

          5.   the failure to move the trial court
               pretrial for an instruction on the
               punishment for the principle offense
               alleged in the presentment and the
               lesser included offense.


          The trial judge found that while some of the testimony

complained of should have been excluded, the erroneously admitted

evidence was harmless in the context of appellant's trial.     The

judge concluded that defense counsel's actions or failure to act

had been consistent with the defense theory that appellant was

engaged in a legitimate business and that any wrongdoing had been


                                8
committed    by   Swartz   and   Ashworth   without   her   knowledge   or

encouragement.    Therefore, the court concluded that appellant was

not denied effective assistance of counsel.             We respectfully

disagree.



                           1.    LEGAL STANDARDS

            When there is a post-trial hearing on the issue of

whether the accused was denied the effective assistance of counsel,

the findings of fact made by the trial court at the conclusion of

the hearing have the weight of a jury verdict.        Consequently, this

court is bound by the trial court's findings of fact unless the

evidence contained in the record preponderates against the judgment

entered by the trial court.4



            Since the trial court found that appellant failed to

establish she was entitled to a new trial on this ground, this

court must review       the record to determine whether the trial

court's findings of fact preponderate against the judgment entered

in this case.5    In doing so, this court is bound by certain well-

established rules governing appellate review.

            First, this Court cannot reweigh or reevaluate
            the evidence; nor can we substitute our
            inferences for those drawn by the trial judge.
            Second, questions concerning the credibility
            of the witnesses, the weight and value to be
            given their testimony, and the factual issues
            raised by the evidence are resolved by the
            trial judge, not this Court. Third, appellant
            has the burden in this Court of illustrating
            why the evidence contained in the record

    4
     Cooper v. State, 849 S.W.2d 744, 746 (Tenn. 1993); Butler v.
State, 789 S.W.2d 898, 899 (Tenn. 1990); Bankston v. State, 815
S.W.2d 213, 215 (Tenn. Crim. App.), perm. to appeal denied, (Tenn.
1991).
    5
     Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App.), perm.
to appeal denied, (Tenn. 1990); Brooks v. State, 756 S.W.2d 288,
290 (Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1988);
Vermilye v. State, 754 S.W.2d 82, 84 (Tenn. Crim. App.), perm. to
appeal denied, (Tenn. 1987).

                                      9
                 preponderates against the judgment entered by
                 the trial judge.

Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App.), perm. to

appeal denied, (Tenn. 1990).



                 Before an accused is entitled to a new trial on the

ground that trial counsel's representation was ineffective, the

accused must prove by a preponderance of the evidence that (a) the

services rendered or advice given by counsel fell below the "range

of competence demanded of attorneys in criminal cases,"6 and (b)

the unprofessional conduct or errors of counsel "actually had an

adverse effect on the defense."7



                 In    determining   whether     the    accused   has   factually

established a deprivation of the constitutional right to the

effective assistance of counsel, we recognize that neither the

State nor Federal Constitution requires perfect representation.8

Second, it is not our function to "second guess" trial counsel's

tactical and strategic choices pertaining to matters of defense

unless these choices are made without knowledge of the relevant

facts       or   the    law   applicable   to   the    issue.9    "[T]he   defense


     6
         Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975).
             7
         Strickland v. Washington, 466 U.S. 668, 693, (1984);
Williams v. State, 599 S.W.2d 276, 279 (Tenn. Crim. App.), perm. to
appeal denied, (Tenn. 1980).
        8
      Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982); Vermilye,
754 S.W.2d at 85. In State v. Martin, 627 S.W.2d 139, 143 (Tenn.
Crim. App. 1981), perm. to appeal denied, (Tenn. 1982), this court
said "[t]here are no perfect lawyers." In Cureton v. Tollett, 477
S.W.2d 233, 235 (Tenn. Crim. App. 1971), cert. denied, (Tenn.
1972), this court said: "In the course of a trial, many legal
situations occur which present choices in many directions. The
lawyer must decide which course to take.      [The lawyer] is not
required to be infallible."
        9
      State v. Cooper, 849 S.W.2d 744, 746 (Tenn. 1993); Hellard
v. State, 629 S.W.2d at 9; Vermilye v. State, 754 S.W.2d at 85;
see also State v. Kerley, 820 S.W.2d 753, 756 (Tenn. Crim. App.),
                                                   (continued...)

                                           10
attorney's representation, when questioned, is not to be measured

by '20-20 hindsight.'"10    Third, an accused is not deprived of the

effective assistance of counsel because a different procedure or

strategy might have produced a different result.11       Fourth, the

entire record, not "isolated acts or omissions," must be considered

in determining whether the petitioner was adequately represented.12

As this court said in State v. Mitchell:

                  Protection of an accused's right to
             effective assistance of counsel does not
             require that his attorney's every act or
             omission claimed to be deficient be examined
             in   isolation.     The   issue  is   whether
             considering the case as a whole, including
             performance by the accused, counsel provided
             reasonable professional assistance. . . . As
             stated in Strickland v. Washington, 'the
             ultimate focus of inquiry must be on the
             fundamental fairness of the proceeding whose
             result is being challenged.'13




(...continued)
perm. to appeal denied, (Tenn. 1991); Sherrill v. State, 772 S.W.2d
60, 62 (Tenn. Crim. App. 1988), perm. to appeal denied, (Tenn.
1989); Smith v. State, 757 S.W.2d 14, 18 (Tenn. Crim. App.), perm.
to appeal denied, (Tenn. 1988); State v. Swanson, 680 S.W.2d 490
(Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1984); McBee v.
State, 655 S.W.2d 191, 193 (Tenn. Crim. App.), perm. to appeal
denied, (Tenn. 1983); Tolliver v. State, 629 S.W.2d 913, 914-15
(Tenn. Crim. App. 1981), perm. to appeal denied, (Tenn. 1982).
     10
          Hellard v. State, 629 S.W.2d at 9.
    11
      Tolliver v. State, 629 S.W.2d at 914-15; Williams v. State,
599 S.W.2d at 279-80. In Long v. State, this court said:

             Not every mistake of judgment or misconception
             of law made by defense counsel will deprive
             the accused of his constitutional right to
             effective representation, nor is the accused
             deprived of such right because a different
             procedure or strategy upon the part of counsel
             might have produced a different result.

Long v. State, 510 S.W.2d 83, 88 (Tenn. Crim. App.), cert. denied,
(Tenn. 1974)(citations omitted).
     12
       State v. Mitchell, 753 S.W.2d 148, 149 (Tenn. Crim. App.),
perm. to appeal denied, (Tenn. 1988); Long v. State, 510 S.W.2d at
88.
     13
          753 S.W.2d at 149 (citations omitted).

                                   11
Fifth, there is "a strong presumption that counsel's conduct falls

within     the    wide    range   of   reasonable   professional   assistance

. . . ."14       Thus, petitioner must overcome "the presumption that,

under the circumstances, the challenged action 'might be considered

sound trial strategy.'"15



                   2.    FAILURE TO FILE MOTION TO SUPPRESS

             Appellant argues that Lieutenant Jones, the coordinator

of this undercover operation, arrested her while searching her

purse.      She contends that trial counsel was ineffective in failing

to seek suppression of this evidence.                The state argues that

appellant was arrested before Jones searched the purse and vehicle.

In the alternative, the state argues that this evidence, consistent

with the operation of a legal dating service, was not prejudicial

to appellant.



             Since no motion to suppress was filed, and consequently

no hearing conducted, the facts surrounding the search and seizure

are sketchy.       It is impossible for us to say without question that

the evidence should have been suppressed.             It is clear, however,

that defense counsel should have filed a motion to suppress.             The

officers had no search warrant.               No exigent circumstances are

apparent.        Therefore, the timing of the arrest and the basis for

the arrest are critical to the legitimacy of the search.              A more

fully developed record of the circumstances surrounding the search

would have allowed an analysis of the suppression issue.



     14
          Strickland v. Washington, 466 U.S. at 689.
     15
       Strickland v. Washington, 466 U.S. at 689. As the United
States Supreme Court said in Strickland: "There are countless ways
to provide effective assistance in any given case. Even the best
criminal defense attorneys would not defend a particular client in
the same way." Id.

                                         12
          Appellant has the obligation of proving the elements of

ineffective assistance of counsel. McBee v. State, 655 S.W.2d 191,

195 (Tenn. Crim. App. 1983).           Thus, appellant would have to

establish that counsel was deficient in failing to file the motion,

and that, the failure prejudiced appellant. At the post-conviction

hearing, appellant should have offered the evidence which would

have been offered had a suppression motion been filed.        We could

have before us a record sufficient to enable us to consider whether

the failure to file the motion prejudiced appellant.          On this

insufficient record, however, we cannot conclude that the failure

to file a motion to suppress was a deficiency on the part of

counsel or that it prejudiced appellant in this case.



        3.     FAILURE TO OBJECT TO EVIDENCE ON CONVICTIONS

          During the direct examination of Agent Jimmy Hester, the

following colloquy occurred:


          Q.     [Were]     Swartz    and    Ashworth
                 . . . arrested for prostitution that
                 night?

          A.     Yes,   sir.     They    were    issued
                 citations and they were taken to the
                 Brentwood Police Department and
                 fingerprinted    and    photographed,
                 interviewed   and    then   issued   a
                 citation.

          Q.     And subsequently those two pled
                 guilty to that charge; did they not?

          A.     Yes, sir.


Trial counsel did not object to this testimony.



          Appellant argues that "the State established one of the

elements of the offense by the hearsay convictions of the two women

when there was absolutely no opportunity for the defendant to

confront or cross-examine these two women as to why they 'plead

                                  13
guilty' to prostitution."         She further argues that this evidence

was "devastating against the defense" and cannot be considered

harmless in the context of this case.           The trial judge found and

the state acknowledges that the admission of this evidence violated

the Tennessee Rules of Evidence.           However, the state argues that

the admission of this evidence was harmless because there "was

ample proof presented at trial that the sole reason the two women

were in the hotel room was to engage in prostitution."



                 This evidence was hearsay.   It is not admissible as an

exception under Tennessee Rules of Evidence 803(22).16            Further,

since testimony was the only direct evidence of the women's intent

to engage in prostitution, it was not harmless.            Since neither

woman testified at trial, appellant could not confront or cross-

examine the witnesses.          The admission was error and prejudiced

appellant.



                 Although not directly addressed in this appeal, we are

compelled to address other parts of Hester's testimony since it may

well arise upon retrial.17 Agent Hester related numerous statements

made during his conversations with the "dispatcher," "Crystal," and



     16
          That rule provides:

                 Judgment of Previous Conviction. -- Evidence
                 of a final judgment adjudging a person guilty
                 of a crime punishable by death or imprisonment
                 in excess of one year to prove any fact
                 essential to sustain the judgment, but not
                 including, when offered by the prosecution in
                 a criminal case for purposes of other than
                 impeachment, judgments against persons other
                 than the accused. The pendency of an appeal
                 may   be    shown   but   does    not   affect
                 admissibility.
            17
         This issue, which concerns the admissibility of the
statements made by the dispatcher, "Crystal," Swartz, and Ashworth,
was raised in appellant's motion for new trial. It was overruled
without explanation in the trial judge's order.

                                      14
the two women who came to the hotel room.                     Nearly all were

introduced      for     "the   truth   of    the   matter   asserted"    and   are

statements, "other than one made by the declarant while testifying

at the trial or hearing."              Tenn. R. Evid. 801(c).           Unless an

exception to the hearsay rule is available, such statements are not

admissible.          Defense counsel objected at one point and the trial

judge agreed that the testimony was hearsay.                After a brief jury-

out discussion with counsel, the trial judge decided to admit the

testimony so long as the prosecution "could connect it up" later.

The state justified the evidence as part of the "res gestae."                  The

trial judge apparently believed the evidence to be admissible as

agent statements under Rule 803 (1.2)(D).



               Neither ground supports the admission of most of the

statements related by Hester.               "Res gestae" is an obsolete term

often inaccurately applied to excited utterances.18               The Tennessee

Rules of Evidence contain no "res gestae" exception.19                   Further,

Rule 803(1.2)(D), of limited applicability in criminal cases,

applies only when the employees are acting within the scope of

their employment and when the statements are against the interest

of the employees as well as the employer.             Since the testimony does

not qualify as either an excited utterance or an admission, it was

inadmissible.         Much of the testimony should have been excluded.



                4.    FAILURE TO OBJECT TO HEARSAY STATEMENTS

               Agent McGaughy testified without objection to a statement

identifying appellant as Swartz's boss.               Appellant contends, and

the state agrees, that the statement attributed to Swartz was


          18
        See Neil P. Cohen, Donald F. Paine, Sarah Y. Sheppeard,
Tennessee Law of Evidence § 803(2) (1990).
     19
          State v. Smith, 868 S.W.2d 561, 576-77 (Tenn. 1993).

                                        15
introduced to prove that appellant was Swartz's boss, i.e., the

truth of the matter.         The trial judge held, however, that the

admission of the hearsay evidence was           harmless since there was

ample evidence to show that an employer-employee relationship

existed between Swartz and appellant.



             Here, the state argues that the evidence was an admission

admissible under Rule 803(1.2)(D).20          Whether Swartz and Ashworth

were agents or servants of appellant was a contested issue at

trial.      Swartz and Ashworth executed contracts that stated that

they were independent contractors, not employees.              Apparently,

appellant did not withhold payroll taxes from the women.              The

viability of the admissions exception under these circumstances is

questionable.       A timely objection by counsel would have required

the court to exclude this statement which served as a basis for the

state's proof of an essential element.



             5.    EVIDENCE OF DAVIDSON COUNTY INVESTIGATION

             During the months of July through October of 1990, more

than a year prior to the incident in question, the Metropolitan

Police     Department    began   an   investigation    into   prostitution

trafficking in Davidson County.            The investigation included the

dating and escort services listed in the yellow pages of the



     20
          The rule provides:

             The following are not excluded by the hearsay rule:

             (D)    a statement by an agent or servant
                    concerning a matter within the scope
                    of the agency or employment made
                    during   the    existence    of   the
                    relationship   under   circumstances
                    qualifying the statement as one
                    against the declarant's interest
                    regardless    of          declarant's
                    availability . . . . Tenn. R. Evid.
                    803 (1.2).

                                      16
Nashville telephone book.           There were approximately 140 individual

telephone listings for these businesses.                   However, all of these

listings     were   to        businesses    operated      by    eight    individuals.

Appellant had thirty-nine listings under separate business names.

She   paid   the    telephone       bills    for    all    of    these     businesses.

Additionally, all of these telephone numbers were answered by an

individual referred to as "a dispatcher" at appellant's place of

business.



             On October 11, 1990, officers executed a search warrant

at appellant's place of business in Davidson County.                           Several

records were confiscated from the business.                    The dispatcher was in

possession    of    a    "pill."      Also,       Metropolitan      police    officers

contacted "various sources throughout Davidson County" and reviewed

"different written complaints sent in by different citizens in

Davidson County."



             Trial counsel contested the relevancy of the testimony

regarding these investigations.              In the motion for a new trial and

in this court, appellant contends that several portions of the

testimony    were       not    admissible    on    various      grounds.      Each   of

appellant's grounds will be addressed.



             Appellant contends that the testimony regarding the 1990

investigation given by Sergeant Blakley was not relevant to the

offense of October 3, 1991 since it was too remote in time to bear

on the controverted factual issues.                The term "relevant evidence"

is defined as "evidence having any tendency to make the existence

of any fact that is of consequence to the determination of the

action more probable or less probable than it would be without the

evidence."     Tenn. R. Evid. 401.                As a general rule, relevant

                                            17
evidence is admissible.       However, there are exceptions.               The

evidence is not admissible if it is barred by the United States

Constitution, the Tennessee Constitution, the Tennessee Rules of

Evidence, or other rules of general application.            Tenn. R. Evid.

402.   Also,   if   the   probative    value    of   relevant   evidence    is

substantially outweighed by the danger of unfair prejudice, the

evidence should not be admitted.           Tenn. R. Evid. 403.    "Relevant

evidence" may also be excluded if the probative value of the

evidence is substantially outweighed by the danger of undue delay,

waste of time, or needless presentation of cumulative evidence.

Tenn. R. Evid. 404.



           Basic to the concept of relevance is the requirement that

a lay witness have "firsthand knowledge" about the subject matter

of the witness's testimony.     Tenn. R. Evid. 602.       In the treatise,

Tennessee Law of Evidence, the authors state:


                The personal knowledge rule of Rule
                602 provides that . . . a witness is
                not competent to testify about facts
                unless   the   witness    personally
                perceived those facts by use of the
                witness's five senses.

Neil P. Cohen, et al., Tennessee Law of Evidence § 602.1 at 2 & 3.

However, there are two exceptions to this rule.          The rule does not

apply to (a) the testimony of experts, Tenn. R. Evid. 702., 703;

Adv. Comm. Comments, Tenn. R. Evid. 602, or to (b) admissions made

by a party opponent. Tenn. R. Evid. 803(1.2); Adv. Comm. Comments,

Tenn. R. Evid. 602.



           A witness must have the requisite personal knowledge to

testify.   Tenn. R. Evid. 602.    On this record, it is difficult to

decipher whether Sergeant Blakley had personal knowledge about much

of his testimony.     Undoubtedly, some of his testimony came from

                                      18
other officers, from individuals he interviewed, from what he read

in reports, and from what he heard while listening to audio tape

recordings.       While ascertaining which is which is difficult,

clearly much of the testimony was hearsay, once, twice, and three

times removed.      Neither Sergeant Blakley's participation in the

investigation nor his role as lead investigator permitted him to

testify to facts outside his personal knowledge.



             Sergeant Blakley candidly admitted that he never talked

with the dispatcher.         Yet he testified to information gleaned from

listening    to   the   taped    conversations    between    the   undercover

officers and the dispatcher and from what he read while reviewing

"different written complaints sent in by different citizens in

Davidson County."       This testimony was inadmissible.



             Despite the fact that his knowledge of the operation of

the escort services was based primarily upon hearsay, Sergeant

Blakley testified as to the operations, the role of the dispatcher,

and the questions asked by the dispatcher.            He testified regarding

the lease and purpose of an apartment and visitors to the apartment

despite his lack of personal knowledge.



             Defense counsel should have challenged Sergeant Blakley's

testimony because of his lack of personal knowledge. At the least,

counsel should have voir dired the witness to ascertain which, if

any, information was based on personal knowledge and which was

obtained from other sources.           Counsel's failure to do so resulted

in   the   admission    of    highly   prejudicial,    largely   inadmissible

testimony.



             Additionally, although Sergeant Blakley was not qualified

as an expert witness, he was permitted to express his opinion

                                        19
regarding the nature of the escort service business. The following

colloquy took place during Blakley's direct examination:


             Q.     During your investigation did you
                    learn how these operations [escort
                    services] worked?

             A.     Yes, sir. During the course of the
                    operations or this investigation in
                    the   preliminary  stages   we  did
                    contact various sources throughout
                    Davidson   County  and   also  were
                    reviewing     different     written
                    complaints sent in by different
                    citizens in Davidson County.

                    In   reading   these   reports   and
                    checking    and    verifying    this
                    information, it was obvious to us
                    that most if not all of these listed
                    escort services were involved in
                    prostitution.

             Q.     How did you arrive at that?

             A.     Okay. The main point of it was --
                    is that we had several irate wives
                    who were calling and wanting to know
                    what different businesses were, and
                    when they called them to check on
                    their credit card receipts were
                    given vague answers and hung up on.
                    We    also   talked    to    various
                    individuals who at one time or
                    another had worked for some of these
                    escort services as escorts, and they
                    had explained to us the terminology
                    and the methodology of the escort
                    service business.

             MR. GALBREATH:   I'm going to object to
                  the hearsay there, Your Honor.

             THE COURT:    Sustain the objection.


             Opinion testimony is generally limited to witnesses who

qualify as experts in the subject matter of their respective

testimony.        Tenn. R. Evid. 702.       On occasion, lay witnesses may

express opinions when certain prerequisites are established. Tenn.

R. Evid. 701.       Lay opinion, however, is fairly circumscribed.         As

the   Advisory      Commission   to   the    Tennessee   Rules   of   Evidence

commented:



                                      20
                  The   rule    rather    specifically
                  circumscribes the area where a lay
                  witness can testify to opinions as
                  opposed to facts.    The Commission
                  believed that the instances would be

rare where a witness could not convey thoughts to the jury by
enumerating facts, leaving it to the jurors to draw inferences.

Add. Comm'n Comments, Tenn. R. Evid. 701.


            Before a lay witness may express an opinion or inference,

the party presenting the witness must establish:

            a)   the witness has "personal knowledge" of the facts or

subject matter that forms the basis for the opinion or inference,

Tenn. R. Evid. 602;

            b)    the opinion or inference to be expressed by the

witness does not require the knowledge or skills of an expert,

Tenn. R. Evid. 701(a)(1);

            c)   the witness cannot readily and with equal accuracy

relate what has been perceived without expressing it in the form of

an opinion or inference, Tenn. R. Evid. 701(a)(2); and

            d)    the opinion or inference to be expressed by the

witness will not mislead the trier of fact to the prejudice of the

adverse party, Tenn. R. Evid. 701(a)(3).



            In this case, the state did not attempt to have Sergeant

Blakley qualified as an expert in the field of prostitution. Based

on   the   testimony   elicited   from   him,   it   is   doubtful   that   he

possessed the training, knowledge, education, or experience to

qualify as an expert.      Consequently, Sergeant Blakley should not

have been permitted to express the opinion that "most if not all of

these listed escort services were involved in prostitution" unless

that opinion was proper for expression by a lay witness and unless

the state established the prerequisites for lay opinion.             We find

that neither condition required for the admission of lay testimony

                                    21
was present in this case.          Trial counsel again failed to object or

to raise the absence of the required conditions, thereby allowing

the admission of prejudicial, inadmissible, crucial evidence.



             In   addition    to     inappropriate   hearsay   and   opinion

testimony, Sergeant Blakley testified to alleged criminal conduct

for which appellant was never charged.         Sergeant Blakley was asked

to detail the sting operations his department conducted.                 He

testified:


             A.      We ran two separate operations in
                     August and September of 1990. These
                     operations were done to further our
                     probable cause to issue search
                     warrants, which we subsequently
                     issued.   At that time we did call
                     these numbers listed to the R & C
                     Enterprises, and at that time did
                     talk with [the] dispatchers.

                     And I believe in September of 1990
                     our officers asked for show dates,
                     and the dispatcher at 918 Shelby
                     when we asked for this service
                     directly, she said that she had two
                     girls --

             MR. GALBREATH:   Objection        again, Your
                  Honor, hearsay.

             THE COURT:     This is when?

             THE WITNESS:     September of 1990.

             . . .

             THE COURT:     Overrule the objection.

             Q.      Go ahead, Sergeant.

             A.      The undercover officers were advised
                     that two girls were available but
                     they   couldn't    get   them   both
                     together. Subsequently, later -- a
                     few minutes later we called back to
                     another number in that list of phone
                     numbers, and at that time we talked
                     to the same female dispatcher or at
                     least the voice appeared to be the
                     same.



                                        22
     Our undercover asked for, again, a
     show date, two girls. At that time
     the dispatcher told them you have
     already called one time and we're
     trying to get you two girls; we just
     can't get them together right now.
     And he said well, I just thought I
     called another number. And she said
     no, we have all thirty-nine lines
     running in here.

Q.   And this was to 918 Shelby Avenue --

A.   Yes, sir.

Q.   -- -- dispatcher, owned and operated
     by this defendant?

A.   Yes, sir.

Q.   Go ahead.

A.   Then I believe it was on the 9th of
     October, 1990, we again called
     several of the listed numbers to R &
     C Enterprises.    At that time our
     undercover officers asked for a
     sexual preference of half and half.

     At that time the dispatcher linked
     our undercover officer with a female
     named Vanessa.    At that time the
     officer advised Vanessa to come to
     the motel. She came to the motel.
     She quoted what she would perform
     and the amount of money.

     At that time the undercover officer
     under our direction told the girl
     that he did not want to go through
     with it, he was married and before
     any money changed hands or anything
     like that we dismissed the girl.
     She left. At that time surveillance
     officers who were placed outside
     this location followed Vanessa back
     to 308 Plus Park Boulevard.

Q.   Was it your department's plan to not
     go through with the sexual act as it
     turned out? Was that what you all
     were planning on doing?

A.   That's correct. All we wanted was
     to find out if in fact these girls
     were offering sexual favors and if
     they were charging money for this.

Q.   And did these girls offer sexual favors?

A.   Yes, sir, they did.

                     23
            This evidence, elicited during Sergeant Blakley direct

examination, clearly violated Rule 404(b), which provides:



            Other Crimes, Wrongs, or Acts.-- 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.       It may, however, be
            admissible for other purposes. The conditions
            which must be satisfied before allowing such
            evidence are:

            (1)    The court upon request must hold a
                   hearing outside the jury's presence;

            (2)    The court must determine that a
                   material issue exists other than
                   conduct conforming with a character
                   trait and must upon request state on
                   the record the material issue, the
                   ruling,   and    the   reasons   for
                   admitting the evidence; and

            (3)    The court must exclude the evidence
                   if its probative value is outweighed
                   by the danger of unfair prejudice.

Tenn. R. Evid. 404(b).



            Through discovery, defense counsel should have known that

this evidence was available to the state and should have requested

a jury-out hearing to determine its admissibility.                 Even if the

state     has    asserted     that    some      legitimate   purpose    for    the

introduction of the other crimes evidence, the court would still be

required to balance the probativeness with the danger of unfair

prejudice arising from admission. Given the nature and timing of

this other crimes evidence, its admissibility is suspect.



            The record establishes that the representation of trial

counsel    was    deficient    in    the   numerous   respects   that   we    have




                                           24
detailed.21     Counsel's services fall far below "the range of

competence demanded of attorneys in criminal cases."             State v.

Melson, 772 S.W.2d 417, 419 (Tenn. 1989). Therefore, appellant has

satisfied the first prong of the Strickland test. To establish the

prejudice prong, appellant must demonstrate that "there [was] a

reasonable    probability   that,   but   for   counsel's   unprofessional

errors, the result of the [trial] would have been different."

Strickland v. Washington, 466 U.S. 694 (1984).              A "reasonable

probability" is defined as "a probability sufficient to undermine

confidence in the outcome."     Id.



             The sheer volume of inadmissible, prejudicial evidence

introduced at this trial is more than sufficient to undermine our

confidence in the outcome.      Indeed, we have difficulty imagining

this trial without all the inadmissible evidence. Virtually all of

Sergeant Blakley's testimony was based on hearsay.           At best, its

relevance was marginal.      His opinions should have been excluded.

Tenn. R. Evid. 701.     The evidence of other crimes occurring more

than a year earlier should have been subjected to Rule 404's


    21
      Appellant also argues that trial counsel's failure to request
a jury instruction on the possible sentence in this case
constituted ineffective assistance of counsel. The flaw in this
argument is that the only offense submitted to the jury was the
promoting of prostitution.       Consequently, the only possible
punishment was the punishment prescribed for this particular
offense. An instruction on the possible punishment for an offense
is only helpful when the evidence adduced at trial supports an
instruction on one or more lesser included offenses. If the jury
finds that the accused is guilty, it may also feel that the harsh
punishment for the principal offense is inappropriate. Thus, the
jury, having been advised of the punishment for the lesser included
offenses, may return a verdict of guilt for a lesser included
offense because it feels the punishment is more appropriate to
punish the criminal conduct. Conversely, if the trial court finds,
as here, that the principal offense is the only crime supported by
the record, an instruction on the possible sentence for the offense
will not benefit the accused.       Of course, this court is not
unmindful of the potential argument that a jury may acquit an
accused if it feels the only punishment for the offense is too
harsh for the accused's criminal conduct.      Such a scenario is
highly unlikely.    The failure of trial counsel to make such a
request did not prejudice appellant in this case.

                                    25
precautionary tests. Agent McGaughy's testimony regarding Swartz's

identification of appellant as "her boss" was hearsay.                Swartz' s

and Ashworth's guilty pleas were irrelevant and highly prejudicial.

The description of these women's activities with Jimmy Hester, but

for the inadmissible hearsay which connected them to appellant, was

only tangentially relevant.         The detailed history of prostitution

in Brentwood was not connected to appellant and should not have

been admitted. Yet counsel neglected to challenge most all of this

evidence.



             When this unchallenged inadmissible evidence is compared

with the remaining evidence, it becomes apparent that counsel's

deficient     performance        prejudiced    appellant.           Absent    the

inadmissible evidence, the proof in appellant's case would have

been   highly   circumstantial      and     could   easily   have   yielded    an

acquittal.



             Therefore,     we     conclude     that    counsel's      numerous

deficiencies affected the outcome of this trial.              This case tried

with competent counsel would not have resembled the case before us.

Counsel's ineffectiveness deprived appellant of a fair trial.



             Catherine Ward's conviction is reversed.               The case is

remanded to the trial court for a new trial.




                                     ___________________________________
                                     Penny J. White, Judge



CONCUR:

                                       26
(See Separate Dissenting Opinion)
Joe B. Jones, Judge



___________________________________
Gary R. Wade, Judge




                               27
