         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                      May 13, 2003 Session

                   STATE OF TENNESSEE v. KELVIN HOBSON

                     Appeal from the Criminal Court for Davidson County
                       No. 2000-D-1999    J. Randall Wyatt, Jr., Judge



                   No. M2002-01462-CCA-R3-CD - Filed December 18, 2003


A Davidson County Criminal Court jury convicted the defendant, Kelvin Hobson, of two counts of
aggravated sexual battery, a Class B felony, and the trial court sentenced him as a violent offender
to concurrent ten-year sentences. The defendant appeals his convictions, claiming that (1) the
evidence is insufficient; (2) the trial court improperly allowed the state to cross-examine him about
prior bad acts; (3) the trial court improperly allowed state witnesses to give rebuttal testimony about
his prior bad acts and his character for truthfulness; (4) the trial court improperly refused to give a
curative instruction after the state shifted the burden of proof during closing argument; and (5) the
trial court should have granted his new trial motion because the jury foreman mistakenly told other
jurors during deliberations that the defendant would serve only probation for his aggravated sexual
battery convictions. We conclude that the trial court committed reversible error by allowing state
witnesses to testify on rebuttal about the defendant’s prior bad acts and his character for truthfulness.
Accordingly, we reverse the judgments of the trial court and remand the case for a new trial.

 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Reversed, Case
                                        Remanded

JOSEPH M. TIPTON, J., delivered the opinion of the court, in which DAVID H. WELLES and ALAN E.
GLENN, JJ., joined.

Glenn R. Funk and Cynthia M. Fort (on appeal), Nashville, Tennessee, for the appellant, Kelvin
Hobson.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; Brian Keith Holmgren, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                              OPINION

       The defendant was charged with sexually abusing his girlfriend’s niece and his girlfriend’s
two granddaughters. L. M., who was fifteen years old at the March 2002 trial, testified that Annie
Harvey was her aunt and that the defendant was Ms. Harvey’s boyfriend. She said that the defendant
lived with her aunt in Nashville and that she had known him since she was about five years old. She
said that when she was about nine years old, she spent almost every weekend at Ms. Harvey’s house
and that her cousins K. H. and M. H. also spent nights there with her. She said she and her cousins
would be alone with the defendant sometimes because her aunt was at work or asleep. She said that
her aunt and the defendant owned a box of sex toys and that the defendant would rub the toys on her.
She said that one of the toys was a vibrator and that the defendant would masturbate while L. M.
rubbed herself with it. She said that the box also contained photographs of her aunt naked and that
the defendant showed her the photographs.

        L. M. testified that the defendant would rub his penis against her genitals while her clothes
were off but that he did not insert his penis into her vagina. She said that she would perform fellatio
on him while he performed cunnilingus on her and that the defendant performed oral sex on her more
than three times. She said that the defendant also stuck his fingers into her vagina once and that he
touched her labia with his toe twice when she was about nine years old. She said that the defendant
did not stick his toe inside of her but that he stuck the tip of his penis into her rectum. She said that
the defendant also rubbed his penis on K. H. and M. H. and that he made them perform fellatio on
him. She said that the four of them would watch pornographic videotapes together and that the
defendant wanted to take photographs of her naked but that she refused.

        L. M. testified that the defendant gave her and her cousins gifts in order to keep them from
revealing the abuse and that she did not tell anyone about the abuse because the defendant told her
no one would believe her. She said that she was older than K. H. and M. H. and that she told them
not to tell anyone because no one would believe them. She said that she never talked to the police
but that she told a woman at school about the abuse when she was thirteen years old. She said that
later, Kate Greer from the Department of Children’s Services (DCS) talked to her. She said that Ms.
Greer wanted her to wear a wire under her clothes and visit the defendant at work but that she
refused. She said a doctor never examined her.

        On cross-examination, L. M. testified that she and her aunt had a close relationship and that
her aunt liked for her to visit. She said that in addition to weekends, she also spent time at her aunt’s
home after school. She said that every time she was at Ms. Harvey’s house, some type of sexual
activity occurred with the defendant. She said that after she revealed the abuse, she continued to go
to Ms. Harvey’s house even though she was not supposed to go there. She said that she never asked
her aunt if she could live at her aunt’s house and that when she was twelve or thirteen, she stopped
going to her aunt’s house completely. She said that after she revealed the abuse, she was sent to
Vanderbilt for counseling and a group home. She said that the defendant ejaculated often during the
abuse and that he could ejaculate up to four times each night.

        K. H., who was eleven years old at the time of trial, testified that the defendant would touch
her buttocks with his hand and his penis while her clothes were off. She said that the defendant
performed cunnilingus on her and that he made her touch his penis with her mouth one time. She
said that the defendant would touch her genitals with his penis and that his penis would go “in and


                                                  -2-
out.” She said L. M. saw the defendant do these things to her. She said that she saw the defendant
touch M. H.’s buttocks and genitals with his hand and that she saw the defendant touch L. M.’s
buttocks with his hand. She said that her grandmother, Annie Harvey, was always away from home
when the abuse occurred and that the defendant never bought or gave her anything. She said she told
her mother about the abuse.

        On cross-examination, K. H. acknowledged that she told the defendant’s attorney no one had
ever touched her. She also acknowledged being examined by a doctor but did not remember telling
the doctor that no one had ever touched her genitals. She said she never saw the defendant ejaculate.
On redirect examination, K. H. said she told the defendant’s attorney that no one touched her
because she was scared. She said L. M. never told her to say bad things about the defendant.

        Sue Ross, a pediatric nurse practitioner, testified that the DCS referred K. H. to her and that
she examined the child. She said that K. H was nine years old at the time of the examination and
that K. H.’s hymen had an unusual indentation. She said that although K. H. had “a very concerning
exam,” she could not say the indentation was caused by sexual abuse. She said that the indentation
could have resulted from a penis or a finger coming into contact with K. H.’s genitalia or that it
could have been the result of K. H.’s normal development. On cross-examination, she said that K.
H.’s hymen was not torn and that she did not see any bruises, abrasions, or scars on K. H. She
acknowledged that K. H. never indicated she had been touched inappropriately.

         M. H., who was nine years old at the time of trial, identified the defendant in court and
testified that she knew him as “Bone.” She said that she met Bone at Annie Harvey’s house but that
she did not know if he lived there. She acknowledged that she would spend the night at her
grandmother’s house and that L. M. and K. H. also spent the night there. She said that the defendant
would touch her buttocks with his penis while both of them had their clothes on, that the defendant
touched her “private part” over her clothes with his hand, and that he touched her private part with
his mouth while her clothes were off. She also said she saw the defendant touch L. M. and K. H.
She said the defendant never told her not to tell people about the abuse. On cross-examination, M.
H. testified that she never saw the defendant’s penis because his clothes were always on.

        Annie Mae Harvey testified that she had known the defendant all of her life and that they had
a romantic relationship for about eleven years. She said that her niece and two granddaughters
would spend the night at her house and that the defendant also would be there. She said that she kept
a Polaroid instant camera and a box of sex toys in her bedroom but that the box was locked and she
always had the key. She said that she and the defendant owned sexually explicit videotapes and that
she was unaware of the children ever watching them. She said that the defendant took photographs
of her naked with the instant camera, that she kept the photographs in the locked box, and that she
never showed the photographs to the children. She said that after she learned the police were
investigating the defendant, they stopped seeing each other. She said that their romantic relationship
ended in 1998 or 1999 and that the defendant never spent the night at her house after that time. She
said that at some point, the police asked to search her house but that she refused. She said that the



                                                 -3-
police later returned with a search warrant, that she telephoned the defendant, and that the defendant
arrived at her house during the search.

        On cross-examination, Ms. Harvey testified that she regularly spent money on L. M., that L.
M. never showed any reluctance to stay at her house, and that L. M. asked to live with her in 1996
or 1997. She said that the defendant was living with her at the time and that she did not let L. M.
live with them because she had to work and could not watch L. M. She acknowledged that L. M.
wanted to “run around the neighborhood” but that she would not let her. She said that the defendant
moved out of her house in 1997 but that they continued to see each other in 1998 and 1999 as
friends. She said that the defendant would give her rides to work and run errands for her but that he
never spent the night at her home. She said that she had custody of K. H. when K. H. was five to
eleven years old and that after the defendant moved out, K. H. and M. H. moved in with her.

        On redirect examination, Ms. Harvey testified that she may have told the police when they
searched her house in January 2000 that the defendant was her boyfriend. She said that sometimes
when she went to bed, the defendant would stay up with the children. She said that she did not know
of any conflicts L. M., K. H., or M. H. had with the defendant and that she did not know why they
would falsely accuse him of sexually abusing them. She said that the girls never told her about the
abuse and that the defendant never had the opportunity to abuse them in her home after he moved
out in late 1997. She said, though, that sometimes when the defendant picked her up from work in
1998 and 1999, L. M. would be with him.

        Sheronda McNeal testified that she is Annie Harvey’s niece and that she was twenty-one
years old at the time of the trial. She said that on Labor Day 1999, she was at another aunt’s house
and that the defendant dropped off K. H. She said that K. H. was nervous and that K. H. told her the
defendant had tried to make K. H. put her mouth on his penis earlier that day. She said that she took
K. H. to K. H.’s mother and that K. H. told her mother about the abuse. She said that the next day,
she went with K. H. to the police and reported the incident.

        Detective Kristin Vanderkooi Dyer of the Nashville Metropolitan Police Department testified
that on August 20, 1999, she followed up on a DCS report that alleged L. M. had been sexually
abused. She said that she and Kate Greer from the DCS met with L. M. and that L. M. was angry
they had come to talk to her. She said L. M. was hostile, did not want to talk, and told them, “You’re
not going to be able to help me.” She said that L. M. calmed down but that L. M. still would not talk
to them about the abuse. She said L. M. was worried about Annie Harvey and the fact that L. M. had
not been honest with L. M.’s mother about the situation. She said that she and Ms. Greer met with
L. M. again on September 22, that L. M. gave them details about the abuse, and that L. M. indicated
K. H. and M. H. also had been abused. She said that at some point, she learned K. H. had
complained to the police about the defendant on September 7, 1999. She said that in October 1999,
she and Ms. Greer spoke with M. H., who told them that the defendant began sexually abusing her
when she was six years old and had continued to abuse her until the summer of 1999.




                                                 -4-
        Detective Dyer testified that she went to Annie Harvey’s house on December 6, 1999, and
talked with Ms. Harvey about the children’s allegations. She said that she asked to look around the
house but that Ms. Harvey refused. She said that she did not know if the defendant was living with
Ms. Harvey at that time but that Ms. Harvey did not want her going through the defendant’s personal
property. She said that in January 2000, she executed a search warrant at Ms. Harvey’s house and
that the defendant arrived during the search. She said that she was looking for a box of sex toys, a
video camera on a tripod, and photographs of children. She said that she found the box of sex toys,
the video camera, and the tripod. She said that Annie Harvey was not cooperative with the police
investigation and that Ms. Harvey was protective of the defendant.

       On cross-examination, Detective Dyer testified that she did not know when L. M.’s abuse
was reported but that it could have been one year before Detective Dyer interviewed L. M. She
acknowledged that she asked L. M. to wear a body wire and record a conversation with the
defendant. She said that L. M. agreed to wear the wire but that due to scheduling problems, they
never got around to it. She acknowledged that pedophiles almost always collect child pornography
and that she never found child pornography in the defendant’s possession.

         Beverly Yoakley Hobson, the defendant’s wife, testified that she met and started dating the
defendant in September 1997. She said that near the end of 1997, the defendant moved in with her.
She said that the defendant worked weekdays from 7:00 a.m. until 6:30 p.m. and that they spent most
weekends together. She said that she worked from 7:00 p.m. to 7:00 a.m. three days per week and
that she did not know what the defendant did while she was working. She said she became aware
of the allegations against the defendant when a police officer telephoned her around Labor Day 1999.
She said that the officer asked where the defendant had been on Labor Day and that she told him the
defendant had been with her. She said that she married the defendant on July 29, 2000, that she
knew the defendant well, that they were close, and that the defendant was honest.

        On cross-examination, Mrs. Hobson testified that when she and the defendant started dating,
the defendant was still living with Annie Harvey but that he did not live with Ms. Harvey all the
time. She said that after the defendant moved out of Ms. Harvey’s house, the defendant and Ms.
Harvey remained friends but that she did not know if they remained romantically involved. She
acknowledged telling a police detective in September 1999 that the defendant sometimes spent the
night at Ms. Harvey’s house. She also acknowledged that although she knew the defendant did not
have access to the children during some of the alleged abuse, she never came forward with that
information. She said Sheronda McNeal was lying when Ms. McNeal testified that the defendant
dropped off K. H. on Labor Day 1999.

       The defendant testified that he was fifty years old and that he moved in with Annie Harvey
in 1984. He said that in 1997, Ms. Harvey moved out of their home and went to live with one of Ms.
Harvey’s daughters for three or four months. He said that about that time, he met Beverly Yoakley.
He said that he moved into Ms. Yoakley’s home in Columbia, Tennessee in November 1997 and
never spent another night in Nashville. He said that after he moved to Columbia, Ms. Harvey moved



                                                -5-
back into her house. He said that from the end of 1997 until 1999, he would take Ms. Harvey to
work sometimes but that he never spent the night with her.

        The defendant testified that he knew L. M., K. H., and M. H. but that he was never in charge
of looking after them. He said that he never had a sexual attraction to the girls and that he never
molested or had sex with them. Regarding the state’s witnesses, he said that it was “just
nerveracking to hear this from all of these people coming in, some of them I don’t even know.” He
said he bought L. M. tennis shoes once because her old shoes were worn out. He said that L. M.
came to Ms. Harvey’s house sometimes but that she did not visit when he was the only person
present. He said that L. M. also spent some weekends with Ms. Harvey but that he did not stay at
Ms. Harvey’s house when L. M. was there. He said that at some point, L. M. asked to move in with
Ms. Harvey but that he did not want L. M. living with them. He said L. M. was disrespectful and
cursed him because he would not let her out of the house late at night. He said there was never a
time when he and L. M. were awake alone at night.

        The defendant testified that he never touched L. M. in a sexual way and that he had not seen
her since 1996. He said that once in 1996, he and L. M. picked up Ms. Harvey from work. He said
that did not happen in 1998 or 1999 as Ms. Harvey had testified. He said that K. H. and M. H. also
spent nights at Ms. Harvey’s house but that he never touched them. He said that he learned about
K. H.’s Labor Day allegations when a detective contacted him at work and that he told the detective
he had been with Beverly Yoakley on Labor Day.

         On cross-examination, the defendant testified that he did not know why the children had
made up the sexual abuse allegations. He said that everything L. M. said was false, that the sexually
explicit videotapes and box of sex toys belonged to Annie Harvey, that he had never seen a
photograph of Ms. Harvey naked, and that Ms. Harvey was lying when she testified the defendant
would stay up at night alone with the children. He said that he and Ms. Harvey were still good
friends, that they had a fourteen-year-old daughter together, and that he did not know why Ms.
Harvey lied during her testimony. He denied telling a detective in September 1999 that he was living
at three residences, including Ms. Yoakley’s and Ms. Harvey’s homes. However, he acknowledged
telling the detective that he did not “play around with kids.” He said that after he moved in with Ms.
Yoakley, he did not tell her that he continued to have contact with Ms. Harvey.

        The defendant acknowledged that Mary Harvey, Annie Harvey’s daughter, had accused him
of having sexual intercourse with her when she was a juvenile. He said, though, that he never had
sex with Mary Harvey. He also acknowledged knowing Sheria Waters, Annie Harvey’s niece, and
denied having sexual contact with her when she was a juvenile. Finally, he said that he had never
offered to pay Sheronda McNeal or Sabrina McNeal, Annie Harvey’s nieces, for sex when they were
juveniles.

       Steven Morgan Vaughn, the Vice President of Levy Wrecking Company, testified that the
defendant worked for him and that he had known the defendant for about fifteen years. He said the
defendant was a good employee, was truthful, and had an honest reputation. On cross-examination,


                                                 -6-
he said he did not know the defendant was on trial for having sexually abused three girls. On
redirect examination, he said he had never asked the defendant about the charges.

        On rebuttal, the state recalled Sheronda McNeal, who testified that the defendant was lying
when he said he did not have a sexual interest in children and that the defendant was living at Annie
Harvey’s house in 1998 and early 1999. Mary Harvey, Annie Harvey’s daughter and K. H.’s mother,
also testified on rebuttal. She said that she had known the defendant for about fifteen years and that
when she was fourteen or fifteen years old, she and the defendant performed oral sex on each other
about four times and had sexual intercourse. She said the defendant also took photographs of her
naked with an instant camera. She said the defendant told her that if she told her mother, her mother
would not believe her.

        On cross-examination, Ms. Harvey testified that she told her mother about having sex with
the defendant and that her mother was mad and took her to a doctor. She acknowledged that the
doctor examined her and that he concluded she had not had sexual intercourse. She said that the
doctor was right and that she had lied to her mother about the defendant sexually abusing her. She
said, though, that after she saw the doctor, she and the defendant began having sex. She
acknowledged meeting with the defendant’s attorney one year before trial and three months before
trial and telling him both times that she and the defendant never had sex. She said she lied to the
attorney because she did not want to talk about having sex with the defendant and because she had
thought she had done something wrong. She acknowledged that she loved K. H. and said that she
had to give up custody of her daughter in 1995. She said that although Annie Harvey had temporary
custody of K. H., K. H. continued to live with her. She said K. H. only went to Annie Harvey’s
house when Annie Harvey was supposed to be there.

        The defendant had been charged with six counts of child rape against L. M., two counts of
aggravated sexual battery against L. M., three counts of child rape against K. H., and two counts of
aggravated sexual battery against M. H. The jury found him guilty of the lesser included offense of
aggravated sexual battery regarding two child rapes against L. M. Those two child rape charges
respectively alleged that the defendant had penetrated L. M.’s labia with his foot and that he had
penetrated her vagina with his fingers between July 1, 1995, and July 1, 1999. The jury acquitted
the defendant of the remaining charges.

                            I. SUFFICIENCY OF THE EVIDENCE

       The defendant claims that the evidence is insufficient to support his convictions because L.
M.’s, K. H.’s, and M. H.’s testimony was incredible and because K. H.’s and M. H.’s testimony
contradicted L. M.’s testimony. In addition, he argues that L. M.’s testimony was “more than
suspect” because she voluntarily stayed at Annie Harvey’s house for years despite the fact that the
defendant sexually abused her during every visit and because she “described a man of extraordinary
sexual ability.” The state claims the evidence is sufficient. We agree with the state.




                                                 -7-
        Our standard of review when the defendant questions the sufficiency of the evidence on
appeal is “whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). We do not reweigh
the evidence but presume that the jury has resolved all conflicts in the testimony and drawn all
reasonable inferences from the evidence in favor of the state. See State v. Sheffield, 676 S.W.2d
542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions about
witness credibility were resolved by the jury. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).

        The jury found the defendant guilty of the lesser included offense of aggravated sexual
battery as to counts five and six, child rape against L. M. The elements of aggravated sexual battery
relevant to this case are unlawful sexual contact with a victim less than thirteen years of age. T.C.A.
§ 39-13-504(a)(4). “Sexual contact” is defined as the “intentional touching of the victim’s . . .
intimate parts if that intentional touching can be reasonably construed as being for the purpose of
sexual arousal or gratification.” T.C.A. § 39-13-501(6). In the state’s election of offenses, count
five specified that the defendant penetrated L. M.’s labia with his foot, and count six specified that
the defendant penetrated her vagina with his fingers.

        Viewed in the light most favorable to the state, the evidence is sufficient to support the
convictions. L. M. testified that when she was about nine years old, the defendant penetrated her
labia with his toe twice and that he inserted his fingers into her vagina once. Given that the jury
acquitted the defendant of eleven counts and found him guilty of only the lesser included offense of
aggravated sexual battery regarding two child rape counts, the jury obviously discredited some of
the witnesses’ testimony. However, the jury chose to believe L. M.’s testimony that the defendant
used his toe and fingers to commit the lesser included offense of aggravated sexual battery. As for
the inconsistencies in the witnesses’ testimony, the credibility and weight to be given to a witness’s
testimony are issues to be resolved by the trier of fact, not this court. See State v. Pappas, 754
S.W.2d 620, 623 (Tenn. Crim. App. 1987). The evidence is sufficient to support the convictions.

        II. CROSS-EXAMINATION ABOUT DEFENDANT’S PRIOR BAD ACTS

       The defendant argues that the trial court erred by allowing the state to impeach him with prior
bad acts. He argues that the trial court had properly ruled that the prior bad act evidence was
inadmissible under Rule 404(b), Tenn. R. Evid., and that he did not open the door to the cross-
examination. The state claims the defendant has waived the issue. In addition, it argues that the
defendant opened the door to impeachment during his direct testimony. We conclude that the
defense opened the door to impeachment. Moreover, we hold that the defendant waived this issue
because he failed to object when the state’s cross-examination questions went beyond what the trial
court had ruled were permissible.

       Before trial, the state filed a notice of its intent to impeach the defendant’s testimony with
evidence that he solicited Sheronda and Sabrina McNeal, Annie Harvey’s nieces, for sex when they
were juveniles and that he sexually assaulted Mary Harvey, Annie Harvey’s daughter, when she was


                                                 -8-
a juvenile. Before the state rested its case, it requested a jury out hearing in order for the trial court
to determine whether the prior bad act evidence was admissible in its case in chief pursuant to Rule
404(b), Tenn. R. Evid.

        During the hearing, twenty-eight-year-old Mary Harvey testified that she had known the
defendant for about fifteen years and that she and the defendant had sexual intercourse and
performed oral sex on each other when she was fourteen or fifteen years old. Eighteen-year-old
Sabrina McNeal testified that the defendant offered to pay her three hundred dollars in exchange for
sexual intercourse when she was thirteen years old but that she refused. Sheronda McNeal testified
that the defendant offered to pay her fifty dollars in exchange for sex when she was fourteen.
Finally, twenty-year-old Sheria Waters, Annie Harvey’s niece, testified that the defendant rubbed
his feet against her genitals while her clothes were off when she was ten or eleven years old. She
also said that at some point after that, the defendant drew a sexually explicit picture, showed it to her,
and asked her to have sex with him. The trial court ruled that the proposed testimony was
inadmissible propensity evidence. See Tenn. R. Evid. 404(b)(3) (2002).

         The state then rested its case, and the defense began presenting its case in chief. After the
defendant’s direct testimony, the state requested that it be allowed to cross-examine the defendant
about his prior bad acts with Mary Harvey, Sabrina McNeal, Sheronda McNeal, and Sheria Waters
or that it be allowed to present their testimony on rebuttal. The state argued that the defendant’s wife
and the defendant had opened the door to the prior bad act evidence by testifying on direct
examination that the defendant was not the type of person who would engage in that type of sexual
behavior and that he did not have a sexual attraction to L. M., K. H., and M. H. The defense argued
that it had carefully questioned the defendant about his sexual attraction only as to the three victims
in this case and that it had not opened the door to impeachment.

        The trial court agreed with the state and held that the defendant had opened the door to
impeachment by his testifying on direct examination that he was not attracted to young girls. The
trial court ruled that the state could conduct limited cross-examination as to the defendant’s “total
disavowal of any attraction towards young people and his reported inclination towards only adult
females.” However, the trial court stated that the state could not “get into the specifics of other facts
that have not been admitted yet.” Moreover, it stated that it would determine after the defendant’s
cross-examination whether the four witnesses could testify in the state’s rebuttal case. At the end
of the hearing, the following exchange occurred:

                       THE COURT: But with just a word to the wise, I think you
                can cross-examine him, generally, about this denial of any attraction
                towards anyone, which is what we’re here about. . . .

                        But did you, I believe, understand what I’m trying to say as to
                this point on the cross-examination?




                                                   -9-
                       [Defense attorney]: Judge, if I feel like the question has
               crossed the line, I intend to object. And I’d appreciate not having a
               discussion in front of the Jury about the nature of the objection and
               we all understand --

                        THE COURT: You won’t have. I understand what this is all
               about.

        On cross-examination, the state asked the defendant if he had ever engaged in sexual
relations with Mary Harvey, and the defendant said no. The state also asked if the defendant had had
sexual contact with Sheria Waters, and the defendant said no. Finally, the state asked if the
defendant had ever propositioned Sheronda or Sabrina McNeal for sex, and the defendant again said
no. The defense did not object to these questions.

         The defendant contends that the trial court erred by ruling that he opened the door to
impeachment. Initially, we note that the state claims the defendant waived this issue because he
failed to “[make] known to the trial court any disagreement” with the trial court’s evidentiary ruling.
However, the record reflects that the defense argued to the trial court that it had carefully questioned
the defendant about his attraction to the three victims in this case and that the defendant had not
opened the door to impeachment. Obviously, the defense disagreed with the trial court’s ruling that
the state could impeach the defendant’s testimony, and we believe the defendant’s failing to state that
he disagreed with the trial court’s ruling did not waive this issue. Therefore, our inquiry will now
focus on whether the trial court properly ruled that the defendant opened the door to cross-
examination about prior acts with Mary Harvey, Sheronda McNeal, Sabrina McNeal, and Sheria
Waters.

        We have reviewed the defendant’s and Beverly Hobson’s testimony and have found no point
at which either of them stated that the defendant did not have a sexual attraction to young females.
Beverly Hobson testified that she thought the defendant was honest and that she believed him when
he told her that he did not abuse the three victims in this case. The defendant testified that he did
not have a sexual attraction to L. M., K. H., or M. H., but he never stated that he did not have a
sexual attraction to juvenile females. Thus, the trial court was mistaken when it held that the
defendant’s “total disavowal of any attraction towards young people and his reported inclination
towards only adult females” opened the door to cross-examination about his prior bad acts with the
four witnesses.

        The state argues that even if the trial court improperly ruled the defendant had opened the
door to impeachment by stating he did not have an attraction to young females, the defense still
opened the door at other points during the trial. The state argues that the defendant opened the door
to impeachment by questioning Detective Kristin Dyer about the fact that no evidence of pedophilia
was found in Annie Harvey’s home. In addition, the state claims that the defendant opened the door
to impeachment when he acknowledged on cross-examination that he had told a detective, “I don’t
play around with kids.”


                                                 -10-
        As to the state’s claim that the defendant opened the door to impeachment by acknowledging
that he told a detective he did not play around with children, this court has stated that “the State
cannot ask a witness an irrelevant but prejudicial question, and then, under the theory of
impeachment, predicate a second irrelevant and prejudicial question upon defendant’s response to
the question.” Hatchett v. State, 552 S.W.2d 414, 415 (Tenn. Crim. App. 1977). We believe that
the state asked the question with the pretense of later impeaching the defendant with prior bad acts
involving Mary Harvey, Sheronda McNeal, Sabrina McNeal, and Sheria Waters. Therefore, the state
cannot now claim that the defendant opened the door to impeachment.

       Regarding the defense’s questioning of Kristin Dyer, the defense asked Detective Dyer if
pedophiles usually collected child pornography, and she said yes. The defense then asked her if she
found any child pornography in the defendant’s possession, and she said no. Obviously, the defense
asked these questions in order to show that the defendant was not a pedophile. We believe this line
of questioning opened the door to the issue of the defendant’s character, i.e., his sexual attraction to
children. See, e.g., State v. Raymond Writer, No. E2001-01062-CCA-R3-CD, Sullivan County
(Tenn. Crim. App. June 10, 2003), app. denied (Tenn. Oct. 27, 2003) (holding that a defense
witness’s stating during direct examination that the defendant had never shown signs of being a child
molester “opened the door to the issue of a pertinent character trait, namely the defendant’s
propensity for molesting children”).

        We note, though, that once the defense opened the door, the state chose to cross-examine the
defendant, rather than the detective, about specific acts. Rule 405, Tenn. R. Evid., provides that
character witnesses may be cross-examined about a defendant’s specific instances of conduct. Thus,
according to Rule 405, the state should have cross-examined Detective Dyer about the defendant’s
prior acts with the four witnesses. On the other hand, case law demonstrates that cross-examining
a defendant about specific instances of conduct when a witness opens the door to character evidence
also has been allowed. See State v. Patton, 593 S.W.2d 913 (Tenn. 1979) (noting that a
psychiatrist’s testimony opened the door to the state’s being able to cross-examine the defendant
about specific instances of conduct); State v. Nichols, 877 S.W.2d 722 (Tenn. 1994) (holding that
the state could cross-examine the defendant about a prior bad act in order to rebut the defense
witnesses’ testimony about the defendant’s docile nature); see generally State v. Harold Tolley, No.
03C01-9811-CR-00386, Unicoi County (Tenn. Crim. App. Jan 14, 2000), app. denied (Tenn. Sept.
5, 2000) (holding that because the defendant opened the door to his character for peacefulness during
his cross-examination of a state witness, the state could cross-examine the defendant about a specific
bad act).

         In any event, regardless of whether the state’s cross-examining the defendant rather than
Detective Dyer was proper, the defendant cannot prevail in his claim. In its ruling, the trial court
held that the defense had not yet opened the door to specific acts and that the state could conduct
only a limited cross-examination of the defendant’s “total disavowal of any attraction towards young
people.” The court asked the defense if it understood this ruling, and the defense stated that it did.
Moreover, the defense told the trial court that it would object if the state asked the defendant any
improper questions. During the state’s cross-examination of the defendant, the defense did not


                                                 -11-
object when the state asked him about engaging in sexual conduct with Mary Harvey and Sheria
Waters or propositioning Sheronda and Sabrina McNeal. The failure to object contemporaneously
constitutes a waiver of the issue pursuant to Rule 36(a), T.R.A.P.

                                  III. REBUTTAL WITNESSES

         The defendant claims that the trial court erred by allowing Mary Harvey and Sheronda
McNeal to testify on rebuttal. He argues that their testimony was inadmissible under Rule 404(b),
Tenn. R. Evid., because the trial court had ruled earlier that the prejudicial effect of the evidence
outweighed its probative value. In addition, he argues that their testimony was inadmissible pursuant
to Rule 608(b), Tenn. R. Evid., because Rule 608(b) prohibits the use of extrinsic evidence to show
a defendant’s character. The state claims that the trial court properly allowed the witnesses to testify.
We conclude that the trial court committed reversible error by allowing Ms. Harvey and Ms. McNeal
to testify.

        After the defense rested its case in chief, the state argued that the defendant had opened the
door to the four women’s testimony. The trial court ruled that pursuant to Rules 404 and 405, Tenn.
R. Evid., some of the witnesses could testify in the state’s rebuttal case. The trial court determined
that the defendant had opened the door to the evidence when he testified that he did not have an
attraction to young people and that L. M., K. H., and M. H. were lying. The trial court also held that
Steven Morgan Vaughn’s testimony about the defendant being honest and truthful also opened the
door to the rebuttal evidence. The trial court stated,

                I believe that in terms of the 608 analysis that the defendant was
                asked about behavior yesterday when he was on the witness stand.
                He denied the behavior. And . . . I don’t believe that that particular
                rule would provide the state an opportunity, now, to bring in extrinsic
                evidence on those questions that were asked the defendant.

                ....

                         So I think the defendant, by introducing evidence through his
                employer, Mr. Vaughn, of the defendant’s reputation for truthfulness,
                which it is primarily what it went to, goes to the credibility of this
                defendant. And the defendant’s testimony, himself, that is very
                adamantly denying any inclination towards any sexual activity with
                children goes to the issue of credibility, which is the main issue in
                this trial.

                        And so the Court is of the opinion that this opens the door to
                the state to introduce the witnesses having to do with this credibility
                question. . . . [Under] 404(a) and 405 that -- that some limited
                testimony could be allowed to -- to counter that issue of truthfulness.


                                                  -12-
                        I will give the Jury a limiting instruction about the only way
               they can consider this. I will tell the jury that they cannot consider
               this testimony as to the defendant’s guilt in this particular case . . . but
               only as to his credibility as a witness.

                ....

                        So what I’m saying, the best way I know how to say it, is that
                I do think that some of this as to credibility, after balancing it, has
                probative value that outweighs the prejudice, where truthfulness,
                credibility is the central issue. So I’m going to ask -- I’m going to
                instruct the state to call a witness or two on that subject . . . .

The trial court ruled that Mary Harvey could testify about the sexual relationship she had with the
defendant when she was a juvenile. The state then asked the trial court if Sheronda McNeal also
could testify. The state told the trial court that it would question Ms. McNeal only as to her opinion
about the defendant’s “character for truthfulness, as it relates to the issue of denying sexual interest
in children.” The trial court agreed and ruled that Ms. McNeal could give her opinion. In the state’s
rebuttal proof, Sheronda McNeal testified that she had known the defendant for a long time and that
in her opinion, the defendant was not truthful when he testified that he did not have a sexual interest
in children. Mary Harvey then testified that she and the defendant had sexual intercourse and
performed oral sex on each other when she was a juvenile. Before their testimony, the trial court had
instructed the jury that it could only consider the evidence for the purpose of determining the
defendant’s credibility.

        Initially, we note that the trial court stated it was admitting Mary Harvey’s rebuttal testimony
pursuant to Rules 404(a) and 405. However, while character witnesses may be cross-examined about
specific acts under these rules, “extrinsic evidence of specific acts is barred.” Neil P. Cohen et al.,
Tennessee Law of Evidence, § 4.05[4][e], at 108 (4th ed. 2000). Thus, we conclude that the trial
court erred by allowing Mary Harvey to testify in the state’s rebuttal case about her sexual
relationship with the defendant.

         We also conclude that Sheronda McNeal’s testimony was inadmissible. The trial court had
ruled that Ms. McNeal could testify on rebuttal about the defendant’s “character for truthfulness, as
it relates to the issue of denying sexual interest in children.” However, as we stated previously, the
defendant denied being sexually attracted to L. M., K. H., and M. H., but he never said that he did
not have a sexual interest in children. Thus, the trial court was mistaken when it held that the
defendant’s denial of a sexual interest in children opened the door to character evidence. In any
event, even if he had made such a statement, Ms. McNeal’s testimony went outside the purview of
admissible opinion testimony. Pursuant to Rule 404(a)(1), once the defendant takes the stand and
opens the door to his character, as the defendant did in this case, the prosecution can attack his
character for truthfulness. See also Tenn. R. Evid. 404(a)(3), 608(a); Neil P. Cohen et al., Tennessee
Law of Evidence § 4.04[4][c], at 70 (4th ed. 2000). However, Ms. McNeal’s rebuttal testimony did


                                                  -13-
not relate to the defendant’s character for truthfulness. Instead, she merely stated that the defendant
lied during his testimony. See State v. Edward H. Jones, No. 03C01-9301-CR-00024, Knox County
(Tenn. Crim. App. Sept. 15, 1994) (holding that because expert’s testimony related to witness’s
truthfulness on a particular occasion instead of the witness’ character for truthfulness pursuant to
Rule 608, Tenn. R. Evid., the evidence was inadmissible). The weight and credibility of a witness’
testimony are matters entrusted exclusively to the jury as the trier of fact. State v. Sheffield, 676
S.W.2d 542, 547 (Tenn. 1984).

         In conclusion, we hold that the trial court erred by allowing Ms. Harvey and Ms. McNeal to
testify on rebuttal. Moreover, given the nature of their testimony, we conclude that the error more
probably than not affected the judgments to the defendant’s prejudice. T.R.A.P. 36(b). Thus, the
defendant’s convictions are reversed and the case is remanded for a new trial.

                                   IV. CLOSING ARGUMENT

        The defendant claims that the trial court erred by refusing to give a curative instruction after
the prosecutor improperly instructed the jury on “reasonable doubt” during closing argument and
shifted the burden of proof to the defense. The state argues that although the prosecutor may have
misspoken during closing argument, the defendant has failed to show that he was prejudiced by the
prosecutor’s statements and that, in any event, the trial court properly instructed the jury as to the
burden of proof. We conclude that the defendant is not entitled to relief on this issue.

        The Tennessee Supreme Court has recognized that “argument of counsel is a valuable
privilege that should not be unduly restricted.” Smith v. State, 527 S.W.2d 737, 739 (Tenn. 1975).
Attorneys have great leeway in arguing before a jury, and the trial court’s broad discretion in
controlling their arguments will be reversed only upon an abuse of discretion. Terry v. State, 46
S.W.3d 147, 156 (Tenn. 2001). However, closing argument must be “temperate, must be predicated
on evidence introduced during the trial of the case and must be pertinent to the issues being tried.”
Russell v. State, 532 S.W.2d 268, 271 (Tenn. 1976). Prosecutorial misconduct does not constitute
reversible error unless the outcome was affected to the defendant’s prejudice. State v. Bane, 57
S.W.3d 411, 425 (Tenn. 2001). In Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976),
this court set out the following considerations for determining whether the state’s conduct could have
improperly prejudiced the defendant and affected the verdict:

               1. The conduct complained of viewed in context and in light of the
               facts and circumstances of the case.

                2. The curative measures undertaken by the court and the
                prosecution.

                3. The intent of the prosecutor in making the improper statement.




                                                 -14-
               4. The cumulative effect of the improper conduct and any other
               errors in the record.

               5. The relative strength or weakness of the case.

See also State v. Buck, 670 S.W.2d 600, 609 (Tenn. 1984) (approving these factors in determining
if the misconduct resulted in reversible error).

       During his closing statement, the prosecutor said the following:

                       The Court will instruct you that a reasonable doubt is a doubt
               based on reason and common sense. It is something that when you
               go home at night and feel comfortable in your hearts deciding that
               Mr. Hobson did these things, you know in your hearts, after listening
               to those four people tell about what happened to them at his hands,
               that this man committed these offenses.

After the prosecutor finished his argument, the defendant’s attorney asked that “some form of the
jury instruction be -- a sentence or phrase be added that the Jury does not have to be comfortable
with innocence.” The trial court refused, stating that it would properly instruct the jury as to
reasonable doubt during the jury charge.

        Initially, we note that both the defendant’s and the state’s briefs allege that the defendant
objected to the prosecutor’s statements. However, our review of the record reveals that the
defendant did not make a contemporaneous objection to the prosecutor’s statements. Moreover,
even when the defense pointed out the prosecutor’s error and asked for a jury instruction, it did not
state that it was objecting to the prosecutor’s closing argument. The failure to object
contemporaneously constitutes a waiver of the issue pursuant to Rule 36(a), T.R.A.P. See State v.
Little, 854 S.W.2d 643, 651 (Tenn. Crim. App. 1992) (failure to object to prosecutor’s alleged
misconduct during closing argument waives any later complaint). Moreover, we discern no plain
error because the trial court properly instructed the jury that the state had the burden of proving the
defendant’s guilt beyond a reasonable doubt and that reasonable doubt is

               that doubt engendered by an investigation of all proof in the case and
               an inability, after such investigation, to let the mind rest easily as to
               the certainty of guilt. Reasonable doubt does not mean doubt that
               may arise from probability. Absolute certainty of guilt is not
               demanded by the law to convict of any criminal charge, but moral
               certainty is required, and this certainty is required as to every
               proposition of proof requisite to constitute the offense.

See Tenn. R. Crim. P. 52(b). The defendant is not entitled to relief.



                                                 -15-
               V. JURY’S EXPOSURE TO EXTRANEOUS INFORMATION

        Finally, the defendant claims that the trial court erred by refusing to grant him a new trial.
He contends that a new trial is warranted because two juror affidavits submitted with his new trial
motion demonstrate that the jury convicted him based upon the jury foreman’s incorrectly telling
other jurors that he would serve only probation if the jury convicted him of the lesser included
offense of aggravated sexual battery. He claims that the jurors should have been allowed to impeach
their verdict and that the trial court improperly denied his motion for a new trial based upon the
jury’s exposure to the extraneous information. The state responds that pursuant to Rule 606(b),
Tenn. R. Evid., and Tennessee case law, the trial court properly denied the defendant’s motion for
a new trial. We agree with the state.

        In his motion for a new trial, the defendant claimed that during jury deliberations, the jury
foreman, a Department of Correction (DOC) employee, told fellow jurors that the defendant would
serve only probation for two aggravated sexual battery convictions. He argued that he was entitled
to a new trial because the jury convicted him based only upon the foreman’s misinformation. To
support his claim, the defendant attached affidavits from two jurors. In both affidavits, the jurors
stated that they believed the defendant was innocent of any crime against L. M.; that they found the
defendant guilty of two counts of aggravated sexual battery “just in case Mr. Hobson had actually
touched [L. M.] in an inappropriate manner” and because they wanted him listed on the sexual
offender registry; and that they found him guilty because the jury foreman told them the defendant
“would probably just get probation for one or two years” for the aggravated sexual battery
convictions.

        At the motion for new trial hearing, the defendant argued that State v. Fuino, 608 S.W.2d 892
(Tenn. Crim. App.), app. denied (Tenn. 1980), supported his claim that the affidavits were
admissible to impeach the verdict. In Fuino, jurors submitted affidavits stating that they would not
have convicted the defendant of first degree murder if they had known he would have to serve a life
sentence. The trial court refused to consider the affidavits and denied the defendant’s new trial
motion. On appeal, this court first noted that the trial court had failed to inform the jury that the jury
would have to sentence the defendant to death or life imprisonment if it found the defendant guilty.
It then determined that the juror affidavits contained proof that the jurors had been influenced by
extraneous prejudicial information and by misrepresentation and mistake. This court reversed the
defendant’s conviction and ordered a new trial. In the present case, the trial court noted that despite
Fuino, more recent “case law interpreting Rule 606(b) . . . [indicates] that matters such as brought
forth by the affidavits in this case do not provide a valid basis for impeaching a jury’s verdict.” It
overruled the motion for new trial.

        The defendant maintains that this case is analogous to Fuino and that Fuino is still good law.
In addition, he contends that State v. Akins, 867 S.W.2d 350 (Tenn. Crim. App. 1993), is dispositive.
In Akins, the defendant was charged with several offenses, including driving under the influence
(DUI). During voir dire, Juror Hathaway failed to reveal that she had worked as a probation officer
and a DUI counselor, despite direct questions from the state and the defense that should have


                                                  -16-
revealed such information. After trial, another juror told the defense about Ms. Hathaway’s prior
experience with alcoholics, and the defendant called Ms. Hathaway to testify at his motion for new
trial hearing. On appeal, the state argued that Ms. Hathaway’s testimony could not be considered
under Rule 606(b). However, this court held that her testimony could be considered and that her
failure to reveal her prior experience denied the defendant his constitutional right to a fair and
impartial jury. Id. at 355-57.

      Tennessee Rule of Evidence 606(b), which came into effect in 1989, governs a juror’s
competency to testify regarding the validity of the verdict.

                Upon an inquiry into the validity of a verdict or indictment, a juror
                may not testify as to any matter or statement occurring during the
                course of the jury’s deliberations or to the effect of anything upon any
                juror’s mind or emotion as influencing that juror to assent to or
                dissent from the verdict or indictment or concerning the juror’s
                mental processes, except that a juror may testify on the question of
                whether extraneous prejudicial information was improperly brought
                to the jury’s attention, whether any outside influence was improperly
                brought to bear upon any juror, or whether the jurors agreed in
                advance to be bound by a quotient or gambling verdict without further
                discussion; nor may a juror’s affidavit or evidence of any statement
                by the juror concerning a matter about which the juror would be
                precluded from testifying be received for these purposes.

As the Advisory Commission Comment notes, this rule is the codification of the supreme court’s
adoption of Rule 606(b), Fed. R. Evid., in State v. Blackwell, 664 S.W.2d 686, 688 (Tenn. 1984).
Both fact and opinion can comprise extraneous information influencing a jury. Blackwell, 664
S.W.2d at 689. If the defendant shows that the jury has been subjected to extraneous prejudicial
information or improper influence, then we presume prejudice and the burden shifts to the state to
rebut this presumption by either explaining the exposure or proving that it was harmless. Id.

         Regarding the defendant’s argument that this case is analogous to Fuino and that Fuino is still
good law, we agree that the facts of Fuino are similar to the case before us. Moreover, we recognize
that in Fuino, this court held that the jury foreman’s mistakenly telling other jurors that the trial court
would not sentence the defendant to life imprisonment was extraneous prejudicial information.
However, in reversing Mr. Fuino’s conviction, this court emphasized that in addition to the
foreman’s misinformation, the trial court also gave an incorrect jury instruction, which contributed
to the other jurors’ believing the foreman. Id. at 895-96.

        We also recognize that since Fuino, this court and our supreme court have held that the type
of information revealed by the jury foreman in that case was not extraneous prejudicial information.
For example, in State v. Anderson, 748 S.W.2d 201, 205 (Tenn. 1985), our supreme court held that
a juror’s telling other jurors that the defendant would be eligible for parol after serving only thirty


                                                   -17-
years of a life sentence was not extraneous information under Fed. R. Evid. 606(b). In State v.
McAffee, 784 S.W.2d 930, 933 (Tenn. Crim. App. 1989), this court held that a juror’s stating during
deliberations that the defendant would only serve six years for a first degree murder conviction was
not extraneous prejudicial information. Finally, our supreme court has stated that jurors are
“generally knowledgeable in many areas, and they are entitled to use their common or acquired sense
in arriving at a verdict, so long as the knowledge is not imparted to them outside the judicial
proceeding in which they sit as jurors.” Anderson, 748 S.W.2d at 205. We conclude that case law
since Fuino demonstrates that information brought into the jury room by a juror’s work experience
does not constitute extraneous prejudicial information.

        Turning to the case before us, the jurors’ affidavits do not allege that the jurors learned about
the mistaken information from a third party during the trial or deliberations. To the contrary, the
jurors obtained the information from the jury foreman, who learned the information from his
experience as a DOC employee. Although the defendant claims Akins is dispositive, we note that
Akins is distinguishable from the present case. In Akins, this court merely stated that Rule 606(b)
does not preclude testimony about voir dire. We also note that unlike the trial court in Fuino, the
trial court in this case instructed the jury that the trial court would determine the defendant’s
punishment at a separate sentencing hearing upon a finding of guilt. Choosing to follow the
reasoning in Anderson and McAfee, we conclude that the jurors’ affidavits did not reveal any
extraneous information and that the trial court properly denied the defendant’s motion for new trial.

        We conclude that the trial court erred by allowing Mary Harvey and Sheronda McNeal to
testify on rebuttal about the defendant’s prior bad acts and character for truthfulness. The
defendant’s convictions are reversed, and the case is remanded for a new trial.



                                                         __________________________________
                                                         JOSEPH M. TIPTON, JUDGE




                                                  -18-
