         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE          FILED
                           MARCH 1999 SESSION
                                                      April 30, 1999

                                                    Cecil W. Crowson
                                                   Appellate Court Clerk
STATE OF TENNESSEE,                )
                                   )    NO. 01C01-9804-CR-00192
      Appellee,                    )
                                   )    SUMNER COUNTY
VS.                                )
                                   )    HON. JANE WHEATCRAFT,
MICHAEL D. KEEN,                   )    JUDGE
                                   )
      Appellant.                   )    (Incest)



FOR THE APPELLANT:                      FOR THE APPELLEE:

DAVID A. DOYLE                          JOHN KNOX WALKUP
District Public Defender                Attorney General and Reporter
117 East Main Street
Gallatin, TN 37066-2801                 ELIZABETH B. MARNEY
(On appeal)                             Assistant Attorney General
                                        Cordell Hull Building, 2nd Floor
JOHN D. PELLEGRIN                       425 Fifth Avenue North
113 West Main Street                    Nashville, TN 37243-0493
Gallatin, TN 37066-3231
(At trial)                              LAWRENCE RAY WHITLEY
                                        District Attorney General

                                        SALLIE W. BROWN
                                        Assistant District Attorney General
                                        113 West Main Street
                                        Suite 300
                                        Gallatin, TN 37066-2803




OPINION FILED:



AFFIRMED IN PART; REVERSED
AND REMANDED IN PART



JOE G. RILEY,
JUDGE
                                            OPINION



       A Sumner County jury convicted defendant, Michael D. Keen, of two counts

of incest, Class C felonies. The trial court sentenced him as a Range I standard

offender to six years incarceration for each conviction, consecutive. On this appeal

as of right, defendant raises the following issues:

       1.         whether the trial court erred in allowing testimony about
                  other sex crimes allegedly committed by him;

       2.         whether the trial court erred in allowing fresh complaint
                        testimony;

       3.         whether the trial court erred in allowing his psychiatrist
                         and psychiatric social worker to testify about
                  certain matters;

       4.         whether his trial counsel was ineffective; and

       5.         whether his sentence is excessive.

Upon our review of the record, we REVERSE AND REMAND for retrial one of

defendant's convictions, and AFFIRM the other conviction and sentence.




                                             FACTS



       The victim in this case is defendant's stepdaughter, H.K.1 She testified that

she initially consented to have sex with defendant during the spring of 1994 when

she was fourteen years old. She claimed that they had intercourse "[p]robably

anywhere from 10 to 15" times. She did not specify when the encounters occurred.

She testified that she also performed oral sex on defendant, but again did not

specify when these incidents occurred. H.K. also testified that, after she had sex

with defendant, he would give her and her siblings liquor and marijuana. Her

description on direct examination about the last time she and defendant had sex

was the following:




       1
           This Court's policy is to identify minor victims of sex crimes by their initials.

                                                2
              Q:     Do you remember approximately when
                     was the last time you and Mr. Keen had
                     sex?
              A:     It was probably a month and a half before
                     I told, which was April 23rd of [1996].

              Q:     So sometime during March of that year?

              A:     Yes.

       H.K. initially reported her allegations to her mother, Marilyn Wood, in April

1996. Wood took her children out of the house and when she returned, defendant

was gone. Wood testified that defendant called her the next day, "crying, telling me

he was a sick man, that he wanted me to stick by him and help him get help." She

further testified that defendant admitted to her in May 1996 that he "had sex with

[H.K.] for over a year."

       On May 5, 1996, defendant was admitted into a hospital. Calvily Evonne

Allmon, the psychiatric social worker who interviewed him upon his admission,

testified that, "[a]ccording to [her] notes [defendant] admitted to sexual abuse with

his stepdaughter." Dr. Robert A. Jack, the psychiatrist who treated defendant at the

hospital, testified that part of the May 13, 1996, discharge plan was that he attend

treatment at a sexual perpetrators program.

       H.K.'s allegations were not reported to the police until July 31, 1996, when

she told Detective Susan Morrow, "that her stepfather was having sexual

intercourse with her and she was performing oral sex on him." Morrow also testified

that H.K. had reported defendant giving her alcohol and marijuana after their sexual

encounters.

       Defendant testified and admitted giving H.K. alcohol and marijuana. He also

admitted talking with H.K. about having sexual relations with her. He denied,

however, that he ever had sex with her. He further denied having told Allmon or Dr.

Jack that he had sexual relations with her. He testified that Wood told him she

wanted a divorce and that if he "messed this up for her . . . [she] will say that [he]

raped [her] daughter."




                                          3
                            ELECTION OF OFFENSES



       Although not raised by defendant on this appeal, it is our responsibility to

reverse his conviction for incest under Count One of the indictment because the

state failed to properly elect an offense, thereby violating defendant's right to jury

unanimity. See State v. Walton, 958 S.W.2d 724, 727-28 (Tenn. 1997). The state's

omission constitutes plain error. Id.; see Tenn. R. Crim. P. 52(b).

       Count One of the indictment provides as follows: "[Defendant] heretofore on

or about the Spring of 1994, . . . did unlawfully, knowingly and feloniously engage

in sexual penetration with [H.K.], a person he knew to be his step-daughter." The

indictment thus covers a period of several months and further covers all acts of

sexual penetration, which include both sexual intercourse and oral sex. See Tenn.

Code Ann. § 39-13-501(7). H.K. testified that she began having sex with defendant

in the spring of 1994, that they had intercourse ten to fifteen times, and that they

also engaged in oral sex. No specific time frame was established for these multiple

sex acts.

       During closing argument the prosecutor contended, "[t]his happened to her

. . . over a period of . . . two years, ending in March of 1996." The prosecutor further

stated to the jury, "it's been proven to you, beyond a reasonable doubt, that this

man, Michael D. Keen, had sexual intercourse with his stepdaughter [H.K.], on, at

least, two occasions, as in the indictment, beginning in the spring of 1994 and

ending in March of 1996" (emphasis added).

       The evidence in this case suggests that defendant committed multiple sexual

offenses against H.K. during the time period covered in Count One of the

indictment. Accordingly, the trial court should have required the state to elect the

particular offense for which it was seeking a conviction in order to ensure that the

jury's verdict was unanimous. See Walton, 958 S.W.2d at 727. "This requirement

is 'fundamental, immediately touching the constitutional rights of an accused.'" Id.

(quoting Burlison v. State, 501 S.W.2d 801, 804 (Tenn. 1973)).


                                           4
      With respect to Count One, it appears that the state was attempting to

convict defendant for the first time he had sex with H.K. However, the proof was not

so limited. Rather, it included testimony about multiple sex acts, of two different

types, with no specificity as to events. Thus, because the state was not required to

elect a specific offense for which it was seeking conviction, there is no assurance

that each juror relied upon the same evidence in convicting defendant. Accordingly,

defendant's conviction of incest under Count One of the indictment must be

reversed and remanded for a new trial.

       Defendant's conviction under Count Two of the indictment does not suffer

from the same problem. That count provides: "[Defendant] heretofore on or about

March, 1996 . . . did unlawfully, knowingly and feloniously engage in sexual

penetration with [H.K.], a person he knew to be his step-daughter." The proof

specific to this count was H.K.'s testimony that the last time she had sex with

defendant was in March 1996. Thus, the jury did not have the same "brimming bag

of offenses," Tidwell v. State, 922 S.W .2d 497, 501 (Tenn. 1996), from which to

choose in deciding to convict defendant of this offense.




                             EVIDENTIARY ISSUES

                                 A. Other Crimes

      Defendant asserts that the trial court should not have allowed proof about

sex crimes other than those for which he was indicted. The state responds that this

issue is waived because trial counsel did not contemporaneously object. The state

is correct in this regard. See Tenn. R. App. P. 36(a).

      Furthermore, we find this issue to be without merit. Defendant is correct that

there is no "sex crimes" exception to the general rule prohibiting proof of an

accused's other crimes. See State v. Rickman, 876 S.W.2d 824, 829 (Tenn. 1994);




                                         5
Tenn. R. Evid. 404(b). However, proof of other sex crimes is admissible if they

occurred during the time period covered by the indictment.2 Id. As set forth above,

the state elicited testimony from H.K. about multiple sex acts which were implied as

occurring during the several month period covered by Count One of the indictment.

       Had the state elicited proof of sex acts occurring after the Spring of 1994 and

before the final episode, its admission might have been error. Id. The proof in this

case was not so specific.       However, to the extent that the proof can be so

construed, we find its admission to have been harmless error with respect to

defendant's conviction under Count Two. See State v. Dutton, 896 S.W.2d 114,

117 (Tenn. 1995). H.K.'s testimony about her last sexual encounter with defendant

and her subsequent decision to tell her mother about what had been happening was

clear and unequivocal. It was corroborated by her mother's testimony. Defendant

admitted enough of H.K.'s allegations to justify the jury in concluding that H.K.'s

testimony was credible on the whole. Accordingly, any proof of sex acts that did not

fall within the indicted period did not "more probably than not" affect the judgment

of conviction on Count Two, and defendant is not entitled to reversal of his second

conviction on this ground. Id.; Tenn. R. App. P. 36(b).



                                      B. Hearsay

       Defendant next complains about the trial court's admission of "fresh

complaint" testimony. Specifically, defendant contends that Detective Morrow

should not have been allowed to testify about what H.K. told her.

       Morrow was the state's first witness in its case-in-chief. She testified, inter

alia, that H.K. alleged "that her stepfather was having sexual intercourse with her

and she was performing oral sex on him;" that defendant was H.K.'s uncle because

he was her father's half or full brother; and that defendant would buy H.K. alcohol

and marijuana after having sex with him.




       2
        However, when such evidence is admitted, the state must elect the specific offense
for which it seeks conviction. Shelton, 851 S.W.2d at 137.

                                            6
         In State v. Kendricks, 891 S.W.2d 597, 606 (Tenn. 1994), the Court

overruled the longstanding rule announced in Phillips v. State, 28 Tenn. (1 Hum.)

246 (1848), which allowed both the fact and the details of a fresh complaint to be

admitted during the state's case-in-chief. In Kendricks, the Court held that, in cases

involving adult victims of sexual crimes, under the fresh complaint doctrine, "the fact

that a complaint was made is admissible in the state's case-in-chief to rebut the

possible negative inference created by the victim's silence." Kendricks, 891 S.W.2d

at 606. "Once the credibility of the victim has been attacked, the details of the

complaint are admissible to show that the victim related the same story soon after

the incident." Id. This testimony is admissible only as corroborative evidence, not

as substantive evidence. Kendricks, 891 S.W.2d at 606.

         The complaint must be timely, but need not be contemporaneous with the

event.      Kendricks, 891 S.W.2d at 606.            This court must consider the

reasonableness of the delay in the complaint in light of all the circumstances,

including the reasons for the delay and the age and mental capacity of the victim.

Id.; State v. Lewis, 803 S.W.2d 260, 264 (Tenn Crim. App. 1990).

         The Kendricks holding is limited to adult victims. Kendricks, 891 S.W.2d at

606. Fresh complaint evidence is not admissible in cases with a child victim. State

v. Livingston, 907 S.W.2d 392, 394-95 (Tenn. 1995).

         In the context of sex crimes, a "child" is defined as under thirteen years old.

See Tenn. Code Ann. §§ 39-13-504(a)(4) and 39-13-522(a). H.K. testified that her

date of birth is February 11, 1980. The indictment covers the time period "Spring

of 1994" and "March, 1996." Therefore, H.K. was fourteen years old in the spring

of 1994, an "adult" for purposes of determining the admissibility of fresh complaint

testimony. See State v. Schuller, 975 S.W.2d 313, 321 (Tenn. Crim. App. 1997).

However, she did not make her statement to Morrow until July 31, 1996. This was

at least four months after the last alleged incident took place, more than three

months after H.K. told her mother. Under the circumstances of this case, we hold

that H.K.'s report to Morrow was not sufficiently timely to qualify as fresh complaint.

Accordingly, the trial court erred in admitting this evidence. However, given H.K.'s



                                            7
testimony and the remaining proof in the record, we also hold that the error was

harmless. See State v. Speck, 944 S.W.2d 598, 602 (Tenn. 1997); Tenn. R. App.

P. 36(b). Therefore, this issue is without merit.



                                 C. Psychiatric Privilege

          In his next issue, defendant contends the trial court committed plain error in

admitting Dr. Jack's and Allmon's testimony about what he told them while at the

hospital.      Defendant is correct that patient-psychiatrist communications are

privileged. See Tenn. Code Ann. § 24-1-207.3 However, he concedes that this

issue is waived because he did not raise this issue in his motion for new trial. See

Tenn. R. App. P. 3(e). Hence, his reliance is on "plain error."

          An error which has affected the substantial right of a defendant may be

noticed at any time in the discretion of the appellate court where necessary to do

substantial justice. Tenn. R. Crim. P. 52(b). “Plain error” or “fundamental error” is

recognized under Tenn. R. Crim. P. 52(b). State v. Stephenson, 878 S.W.2d 530,

553-54 (Tenn. 1994); State v. Adkisson, 899 S.W.2d 626, 639 (Tenn. Crim. App.

1994). Plain error is an egregious error that strikes at the “fairness, integrity or

public reputation of judicial proceedings.” United States v. Rodriguez, 882 F.2d

1059, 1064 (6th Cir. 1989); State v. Adkisson, 899 S.W.2d at 639-40. Some errors

are so fundamental and pervasive that they require reversal without regard to the

facts or circumstances of the particular case. Delaware v. Van Arsdall, 475 U.S.

673 (1986).

          In determining whether the admission of Dr. Jack's and Allmon's testimony

constitutes plain error, we must consider whether each of the following requirements

is met:

          1.     the record clearly establishes what happened in the trial
                 court;


          3
           “Communications between a patient and a licensed physician when practicing as a
psychiatrist in the course of and in connection with a therapeutic counseling relationship .
. . are privileged in proceedings before judicial . . . tribunals. Neither the psychiatrist nor any
member of the staff may testify or be compelled to testify as to such communications or
otherwise reveal them in such proceedings without consent of the patient except” under very
limited circumstances.

                                                8
       2.      a clear and unequivocal rule of law was breached;

       3.      a substantial right of defendant's was adversely
               affected;

       4.      defendant did not waive the issue for tactical reasons;
               and

        5.     consideration of the error is 'necessary to do substantial
               justice.’

Adkisson, 899 S.W.2d at 641-42 (citations omitted).

       In this case, the record clearly establishes the admission of the privileged

communications. Moreover, a clear and unequivocal rule of law -- the patient-

psychiatrist privilege -- was breached.4 The state concedes that the issue was not

waived for tactical reasons. Thus, we must determine whether the error adversely

affected one of defendant's substantial rights and, if so, whether consideration of

the error is necessary to do substantial justice.

       Dr. Jack's testimony included the following privileged communications:

               1.      defendant reported that "he had
                       propositioned one of his stepdaughters,
                       and she had reported this to her mother;"
                       and

               2.      part of defendant's discharge plan was
                       that he attend a sexual perpetrators
                       program.

        Allmon’s testimony included the following privileged communications:

               1.      defendant reported "that his wife took the
                       children, two stepdaughters, ages 15 and
                       16, and their son, and left . . . . This
                       followed the oldest daughter telling her
                       mother that [he] had propositioned her;"

                2.      he "admitted to sexual abuse with his
                        stepdaughter;"

                3.      he informed her that he didn't know if he
                        was "evil or sick;" and

                4.      he was open to referral to the sexual
                        perpetrators program.




       4
         The privilege does not apply “to any situation involving known or suspected child
sexual abuse.” Tenn. Code Ann. § 37-1-614(1996). As set forth above, however, H.K. was
not a “child” at the time of the alleged offenses. We also note that the indictment in this case
does not allege child sexual abuse.

                                               9
In light of defendant's own admissions on the stand about discussing with the victim

their having sexual relations, and in light of the remaining proof in the record, we

hold that the admission of this testimony, while error, does not rise to the level of

plain error requiring reversal. This issue is without merit.

       In a related issue, defendant contends that the trial court erred in allowing

Allmon to testify that defendant told her he sexually abused his stepdaughter. He

argues it was not relevant or, alternatively, any relevance was substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or misleading

the jury. See Tenn. R. Evid. 402, 403. Allmon was unable to clarify the time period

to which defendant referred, making the testimony questionable as proof of the

particular crimes with which he was charged. Moreover, the record establishes that

defendant had two stepdaughters. Allmon did not identify which girl defendant

allegedly abused. Finally, Allmon did not specify what conduct was meant by

"sexual abuse."    Regardless, we find that its admission did not so prejudice

defendant as to require reversal. This issue is without merit.




                   INEFFECTIVE ASSISTANCE OF COUNSEL



       In conjunction with the foregoing issues, defendant complains that his trial

counsel was ineffective. This Court reviews a claim of ineffective assistance of

counsel under the standards of Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975), and

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Defendant has the burden to prove that (1) the attorney’s performance was

deficient, and (2) the deficient performance resulted in prejudice to the defendant

so as to deprive him of a fair trial. Strickland v. Washington, 466 U.S. at 687, 104

S.Ct. at 2064; Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996); Overton v. State,

874 S.W.2d 6, 11 (Tenn. 1994); Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990).

       Because we find that none of the errors complained of resulted in prejudice

which deprived defendant of a fair trial, this issue has no merit. Defendant's



                                         10
contention that all of the trial court's errors, combined with trial counsel's alleged

mistakes, prejudiced the judicial process is likewise without merit. See Tenn. R.

App. P. 36(b).




                                   SENTENCING



       Finally, defendant contends that his sentence on each conviction is

excessive, and service of those sentences should not be consecutive. Defendant

was convicted of two Class C felonies. The range of sentence for these felonies for

a standard offender is three to six years. Tenn. Code Ann. § 40-35-112(a)(3). The

trial court enhanced each of defendant's sentences to the maximum of six years on

the basis of one enhancement factor: he had a previous history of criminal

convictions in addition to those necessary to establish the range. Tenn. Code Ann.

§ 40-35-114(1). The trial court made a specific finding of no mitigating factors.

Defendant contends that the court should have applied as mitigating factors that his

conduct neither caused nor threatened serious bodily injury, and that he

acknowledged his guilt and expressed remorse. Tenn. Code Ann. § 40-35-113 (1)

and (13). The State disagrees and further argues that the trial court erred in

refusing to apply two additional enhancement factors: the offenses were committed

to gratify his desire for pleasure and excitement; and he abused a position of private

trust. Tenn. Code Ann. § 40-35-114(7) and (15).

       This Court’s review of the sentence imposed by the trial court is de novo with

a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption

is conditioned upon an affirmative showing in the record that the trial judge

considered the sentencing principles and all relevant facts and circumstances.

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If the trial court fails to comply

with the statutory directives, there is no presumption of correctness and our review

is de novo. State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997).




                                         11
       We turn first to the application of mitigating and enhancement factors. We

agree with the state that the enhancement factor for abuse of a private trust was

applicable in this case, and that the trial court erred in refusing to apply it.

Defendant was H.K.'s stepfather. Contrary to defendant's argument, abuse of a

private trust is not an essential element of the crime of incest. See State v. Robert

L. Miller, C.C.A. No. 03C01-9502-CR-00037, Blount County (Tenn. Crim. App. filed

September 25, 1997, at Knoxville).

       We further agree with the state that the defendant committed these acts to

gratify his desire for pleasure and excitement. See Tenn. Code Ann. § 40-35-

114(7). Again, this is not an essential element of incest. See State v. Billy Joe

Pruitt, C.C.A. No. 01C01-9304-CR-00123, Wilson County (Tenn. Crim. App. filed

March 31, 1994, at Nashville). Accordingly, even if defendant is correct that the trial

court should have applied two mitigating factors, we find that the number and

severity of the applicable enhancement factors is sufficient to support the maximum

sentence within the range. This issue is without merit.

       Because we have reversed defendant's conviction under Count One of the

indictment, he is entitled to a new trial on that charge and, if convicted, a new

sentencing hearing. The issue of consecutive sentences is, therefore, moot and we

decline to address it.




                                   CONCLUSION



       For the reasons set forth above, defendant's conviction of incest under

Count One of the indictment is reversed, and that charge is remanded for a new

trial. In all other respects, the judgment below is affirmed.




                                          12
                                      ____________________________
                                       JOE G. RILEY, JUDGE



CONCUR:




______________________________
DAVID H. WELLES, JUDGE




______________________________
JOHN EVERETT WILLIAMS, JUDGE




                                 13
