           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT KNOXVILLE              FILED
                            OCTOBER SESSION, 1996        December 23, 1997

                                                       Cecil Crowson, Jr.
STATE OF TENNESSEE,             )    C.C.A. NO. 03C01-9603-CC-00109Clerk
                                                       Appellate C ourt
                                )
      Appellee,                 )
                                )
                                )    SEVIER COUNTY
VS.                             )
                                )    HON. REX HENRY OGLE
JERRY LYNN WALDE,               )    JUDGE
                                )
      Appellant.                )    (Aggravated Sexual Battery-Direct
                        )       Appeal)




FOR THE APPELLANT:                   FOR THE APPELLEE:

LU ANN BALLEW                        JOHN KNOX WALKUP
Assistant Public Defender            Attorney General and Reporter
P. O. Box 416
Dandridge, TN 37725-0416             TIMOTHY F. BEHAN
                                     Assistant Attorney General
                                     450 James Robertson Parkway
                                     Nashville, TN 37243-0493

                                     AL SCHMUTZER, JR.
                                     District Attorney General

                                     JAMES L. GASS
                                     Assistant District Attorney
                                     P. O. Box 70
                                     Dandridge, TN 37725-0070



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                                     OPINION


               A Sevier County Circuit Court jury found Appellant Jerry Lynn Walde guilty of

      three counts of aggravated sexual battery. As a Range I standard offender, he

      received a sentence of eleven years for each count. The trial court ordered two of

      the sentences served concurrently but the third served consecutively, for an

      effective sentence of twenty-two years in the Tennessee Department of Correction.

      In this direct appeal, Appellant presents the following issues for review: (1) whether

      the State failed to timely present his case to a grand jury; (2) whether the State

      violated his right to a speedy trial; (3) whether the trial court erred in admitting his

      statement to authorities in its entirety; (4) whether the trial court erred in limiting

      defense counsel’s voir dire of the jury; (5) whether the evidence presented at trial is

      legally sufficient to sustain a conviction for the January 9, 1995 aggravated sexual

      battery; (6) whether the trial court erred in failing to require the State to make an

      election as to the set of facts relied upon for each charged offense; and (7) whether

      the sentence is excessive.



               After a review of the record, we affirm the judgment of the trial court.



                                           I. FACTUAL BACKGROUND

               As accredited by the jury’s verdict, the proof shows that, during the first two

      weeks of January, 1995, J.H.,1 a ten-year-old female, was sexually abused on three

      separate occasions by Appellant, an uncle with whom she lived. On January 12,

      1995, J.H. reported the abuse to Penny Inman of the Jefferson County Department

      of Human Services. Referring to the area covered by her underwear as her

      “downer part,” J.H. stated that Appellant touched her “downer part” with his hands,

      1
        It is the policy of this C ourt to refra in from referring b y name to mino r victims of sex o ffense s.
The   victim will be referred to by her initials.

                                                             -2-
his mouth, and his “downer part.” Later that day, Ms. Inman informed J.H.’s aunt,

Appellant’s wife, of the allegations. Appellant’s wife in turn informed Appellant.



      That evening, Appellant proceeded to the Jefferson County Sheriff’s Office

and met with Detective Bud McCoig. According to Detective McCoig, Appellant

stated that he had sexually abused a girl and was there to pay for it. Having waived

his rights, Appellant gave the following statement:

              About two weeks ago, me, [J.H.], and [J.H.’s sister]
      were at home watching movies. [J.H.’s sister] was in her
      room playing with Barbie dolls or something. Me and [J.H.],
      age 10, was sitting on the couch. She was in her nightgown.
      I put my hand over her. I started feeling her private part on
      top of her clothes. A day or two later, I touch her again in
      her private parts. Three or four days later, I took my clothes
      off. I pulled my pants down and she, [J.H.], pulled her pants
      down. I had an erection; she just touched my penis and I
      touched her vagina. I just rubbed on the outside of her
      vagina. This happened over a period of two weeks. I done
      a stupid thing and now I got to pay for it.



       The Jefferson County Grand Jury indicted Appellant on three counts of

aggravated sexual battery in violation of Tennessee Code Annotated Section 39-13-

504(a)(4). However, during the investigation of the case, the State discovered that

the offenses had actually been committed in Sevier County. On June 28, 1995,

Appellant was properly indicted in Sevier County and the charges in Jefferson

County were dismissed According to the indictment, Appellant committed

aggravated sexual battery on January 7 and 9 and on one other unspecified date in

January



       On September 28, 1995, Appellant was tried before a jury in the Sevier

County Circuit Court. At trial, Appellant testified that he had never sought sexual

gratification from contact with J.H. but admitted that he had wrestled with J.H., that

he had once awoken from a nap with his hand between J.H.’s legs, and that J.H.


                                          -3-
had once made incidental contact with his erect penis while they were watching

television in bed. Appellant further testified that he did not read the statement taken

by Detective McCoig before he signed it and that the statement failed to accurately

reflect what he told the detective. At the conclusion of the trial, the jury found

Appellant guilty of three counts of aggravated sexual battery. Following a

sentencing hearing on November 6, 1995, the trial court imposed an effective

sentence of twenty-two years.



                                  II. PRESENTMENT

       Appellant first alleges that the State failed to timely present his case to a

grand jury. According to the Tennessee Rules of Criminal Procedure, “[i]f there is

unnecessary delay in presenting the charge to a grand jury against a defendant who

has been held to answer to the trial court . . . , the court may dismiss the indictment .

. . .” Tenn. R. Crim. P. 48(b). In reviewing a motion to dismiss for failure to timely

present, the trial court must consider (1) the length of the delay, (2) the reasons for

the delay, (3) the prejudice to the defendant, and (4) waiver by the defendant. State

v. Benn, 713 S.W.2d 308, 311 (Tenn. 1986). The decision of whether to grant or

deny such a motion lies within the discretion of the trial court. Id. To establish a

violation of due process rights, the evidence must show that there was a delay, that

the defendant was prejudiced, and that the State intentionally delayed the

prosecution in order to gain a tactical advantage. United States v. Marion, 404 U.S.

307, 324 (1971); State v. Baker, 614 S.W.2d 352, 354 (Tenn. 1981); State v.

Dykes, 803 S.W.2d 250, 255-56 (Tenn. Crim. App. 1990).



       Mindful of the factors delineated in Benn and the dictates set out in Marion,

Baker, and Dykes, we look to the circumstances surrounding Appellant’s case. The

period of time between Appellant’s arrest and the presentment of his case to the

appropriate grand jury was approximately five and a half months. The reason for

                                           -4-
     the delay is uncontested: the State mistakenly believed that Appellant, who lived

     very near the county line, committed the offenses in Jefferson County. Once the

     error was discovered, the State presented Appellant’s case to the Sevier County

     Grand Jury and dismissed the charges in Jefferson County. Appellant concedes

     that the delay was unintentional but argues that, due to his extended period of

     incarceration, he was unable to effectively prepare a defense. Appellant asserted

     his right to timely presentment by filing a motion to dismiss on July 26, 1995.



             First and foremost, there is no evidence whatsoever that the State

     intentionally delayed Appellant’s prosecution in order to gain a tactical advantage, a

     point conceded by Appellant. See Marion, 404 U.S. at 324; Baker, 614 S.W.2d at

     354; Dykes, 803 S.W.2d at 255-56. Moreover, Appellant fails to adequately

     demonstrate prejudice. See Benn, 713 S.W.2d at 311. The record does not reflect

     nor does Appellant allege that defense witnesses died or moved away during the

     time period between his arrest and the presentment of his case to the Sevier County

     Grand Jury. Furthermore, Appellant fails to specify how his incarceration precluded

     preparation of an effective defense. We thus conclude that the trial court properly

     denied Appellant’s motion to dismiss for failure to timely present the charges to the

     grand jury.




                                            III. SPEEDY TRIAL

             Appellant next alleges that the State violated his constitutional right to a

     speedy trial.2 Both the United States and the Tennessee Constitutions guarantee

     2
       Appellant also alleges that the trial court failed to comply with Rule 50 of the Tennessee Rules
of   Criminal Procedure, requiring that defendants in custody be given preference over other criminal
     cases. The record, however, is devoid of any underlying support for such an allegation. Because

                                                      -5-
the right to a speedy trial. See U.S. Const. amend. VI; Tenn. Const. art. I, § 9. This

right arises only after formal accusation, either by arrest or by grand jury action.

State v. Wood, 924 S.W.2d 342, 345 (Tenn. 1996). To determine if a defendant's

right to a speedy trial has been violated, a reviewing court must consider the

following four factors: (1) the length of the delay; (2) the reason for the delay; (3)

whether the defendant asserted his right to a speedy trial; and (4) whether the

defendant was prejudiced by the delay. Barker v. Wingo, 407 U.S. 514, 530 (1972);

State v. Bishop, 493 S.W.2d 81, 83-84 (Tenn. 1973).



         The first factor, length of the delay, serves as a triggering mechanism,

necessitating consideration of the other three factors. Barker, 407 S.W.2d at 530.

The reasonableness of the delay depends upon the complexity of the case. Id. at

530-31. This Court has held that a delay of as long as two years, standing alone,

will not support the finding of a speedy trial violation. State v. Vance, 888 S.W.2d

776, 778 (Tenn. Crim. App. 1994). Here, the length of delay between Appellant’s

arrest and his trial was approximately eight and a half months. While we do not find

this delay egregious under the circumstances, we will, for the purpose of review,

consider the remaining factors.



         The second factor, reason for the delay, generally falls into one of four

categories: (1) intentional delay to gain a tactical advantage over the defense or

delay designed to harass the defendant; (2) bureaucratic indifference or negligence;

(3) delay necessary to the fair and effective prosecution of the case; and (4) delay

caused, or acquiesced in, by the defense. Wood, 924 S.W.2d at 346-47. Both the

State and Appellant agree that there were two reasons for the delay. First, as

discussed previously, the State originally indicted Appellant in the wrong county.




the reco rd fails to su bstantiate Appellan t’s claim, w e find it withou t merit.

                                                        -6-
Second, the victim was taken to California by her mother and had to be legally

compelled to return to Tennessee to testify at trial. We believe that the first reason,

although understandable given Appellant’s residence near the county line, falls into

the second category described in Wood and weighs against the State although not

as heavily as deliberate delay. See id. The second reason, however, falls into the

third category and does not weigh against either party. See id.



       The third factor, the defendant's assertion of the speedy trial right, is entitled

to strong evidentiary weight in determining whether the right has been denied, and

failure to assert the right will make it difficult to prove it was denied. Barker, 407

S.W.2d at 531-32; Bishop, 493 S.W.2d at 85. Appellant first asserted his speedy

trial right in Jefferson County on June 16, 1995 and then again in Sevier County on

July 12, 1995. This factor weighs in favor of Appellant.



       The fourth factor, whether the defendant was prejudiced by the delay, is the

most important factor. Wood, 924 S.W.2d at 348. Three interests of the defendant

are to be considered: (1) preventing oppressive pretrial confinement; (2) minimizing

anxiety and concern that accompanies prosecution; and (3) limiting the possibility

that a defense will be impaired. Barker, 407 U.S. at 532. As discussed previously,

Appellant fails to assert any specific impairment to his defense. Moreover, in

response to Appellant’s motion for a speedy trial, the trial court, in an effort to

prevent oppressive pretrial confinement, reduced his bond to one thousand dollars

and ordered the case set for trial on September 25 or 27, 1995. We find that this

factor weighs heavily in favor of the State.



       In light of the minimal length of the delay, the justifiable reasons for the delay,

and, most importantly, the lack of any particularized prejudice to Appellant, we




                                            -7-
conclude that the trial court properly denied Appellant’s motion to dismiss for failure

to provide a speedy trial.



                  IV. APPELLANT’S STATEMENT TO AUTHORITIES

         Appellant also alleges that the trial court erred in admitting his statement to

authorities in its entirety. Relying upon the approximate dates given in his statement

as compared to the dates set out in the indictment, Appellant argues that the

statement included references to uncharged conduct and that its admission violates

Tennessee Rule of Evidence 404(b) and State v. Rickman, 876 S.W.2d 824 (Tenn.

1994).



         Rule 404(b) states as follows:

                (b) 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).



         In Rickman, the defendant was indicted for one count of statutory rape and

one count of incest, both charges arising from the same incident in August of 1991.

876 S.W.2d at 826 n.1. In a statement to authorities, the defendant admitted that

he had engaged in various forms of sexual contact with the victim over a period of

approximately six years. Id. at 826. The trial court excluded that portion of the


                                             -8-
statement in which the defendant discussed sexual contact with the victim before

the August incident charged in the indictment. Id. However, during the State's

case-in-chief, the trial court did allow the victim to testify about prior sexual contact

with the defendant for the purpose of corroboration. Id. The victim testified that the

sexual contact had begun when she was about seven years old and had eventually

progressed to full sexual intercourse. Id. The victim estimated that she had

engaged in sexual intercourse with the defendant between twenty and thirty times.

Id. On appeal, the Tennessee Supreme Court held that, under Rule 404(b),

evidence of the defendant's sexual misconduct not charged in the indictment and

not connected to any of the charges in the indictment was inadmissible in the

State’s case-in-chief as irrelevant and prejudicial. Id. at 829. This rule was based

upon “the recognition that such evidence easily results in a jury improperly

convicting a defendant for his or her bad character or apparent propensity or

disposition to commit a crime regardless of the strength of the evidence concerning

the offense on trial.” Id. at 828.



       Appellant’s statement was given to authorities on January 12. It begins with

the reference “about two weeks ago” and goes on to describe in general terms three

incidents of sexual contact with the victim over a period of four to six days. The

indictment alleges unlawful sexual contact on January 7 and 9 and on one other

unspecified date in January. We first note that the inconsistency between

Appellant’s statement and the indictment with regard to the dates of the unlawful

contact is immaterial. This Court has previously held that the actual date of the

commission of an offense may be different than that charged in the indictment so

long as the proof establishes that the offense occurred prior to the finding and

returning of the indictment. See State v. Chance, 778 S.W.2d 457, 462 (Tenn.

Crim. App. 1989); see also State v. Perry, No. 03C01-9401-CR-00016, 1995 WL

433319, at *3 (Tenn. Crim. App. July 24, 1995), perm app. denied, (Tenn. Dec. 28,

                                            -9-
1995). It is undisputed that the offenses discussed in Appellant’s statement

occurred prior to the finding and returning of the indictment. Moreover, unlike in

Rickman, where there was evidence of a long-term history of abuse, Appellant’s

statement is limited to the same number of incidents as set out in the indictment and

in no way reflects a pattern of abuse from which the jury might improperly convict

him for his bad character or his apparent propensity to commit a crime. See

Rickman, 876 S.W.2d at 828. In our opinion, Appellant’s statement did not

constitute evidence of uncharged sexual misconduct, as prohibited by Rickman, but

instead constituted evidence of the exact misconduct for which Appellant was on

trial. Any inconsistencies between Appellant’s statement and the State’s theory of

the case then become questions for reconciliation by the jury as the exclusive trier of

fact. We distinguish the case sub judice from Rickman for the foregoing reasons

and find that the trial court did not err in admitting Appellant’s statement in its

entirety.



                                     V. VOIR DIRE

       Appellant alleges that the trial court erred in limiting defense counsel’s voir

dire of the jury. He argues that the trial court improperly prohibited open-ended

questions designed to elicit the prospective jurors’ attitudes, feelings, biases, and

prejudices as they related to the case, thereby compromising his right to a trial by an

impartial jury.



       During voir dire, the following exchange took place:

              DEFENSE COUNSEL: [Y]ou will hear [the victim] say
       that [Appellant] touched her in some of those inappropriate
       places. You will also hear her say that he made her touch
       him in an inappropriate place on his body.
              [Prospective Juror], knowing that that’s what you are
       probably going to hear from this ten-year-old girl as part of
       the State’s proof, how do you feel about that at this point?




                                      -10-
             PROSPECTIVE JUROR: Well, I’ll just have to hear
      her testimony and you know, all the testimony that’s given,
      then decide for myself.

            DEFENSE COUNSEL: Okay. I’m not sure what you
      mean exactly by “I’ll just have to hear all the testimony.”
      Could you go a little bit farther into that?

              THE STATE: If it please the Court, I guess I’m going
      to interpose an objection at least with regard to . . . the jurors
      expressed, I think the standard is can they be fair and
      impartial.

           THE COURT: Approach the bench, counsel, for just
      a moment.

      [Whereupon, a bench conference was held on the record in
      the presence of the prospective jurors but out of the hearing
      of the prospective jurors.]

              THE COURT: I think the nature of your open-ended
      questions sort of leaves them uncertain about what you’re
      asking. You know, how do you feel about that. I don’t think
      that you can seek commitments from them as to how they’ll
      vote based on that. I think it would probably be best if you
      would, you know, at least as to that particular question, I
      believe you asked them how they would react to that or
      whatever, and so he told you that he would just have to hear
      all the proof. I don’t know what more he could say. So don’t
      ask them open-ended questions. I believe that’s . . .

             DEFENSE COUNSEL: Is that not permissible?

             THE COURT: It may be . . .

             DEFENSE COUNSEL: What I’m trying to do is elicit
      their personal opinion and it’s kind of hard . . .

             THE COURT: About what?

             DEFENSE COUNSEL: About the burden of proof,
      about bias, you know, whether they automatically assume
      that he’s . . .

             THE COURT: Ask them that, ask them that instead
      of the open-ended questions, because they don’t know what
      you’re asking.

             DEFENSE COUNSEL: Okay.



      According to the Tennessee Rules of Criminal Procedure, the trial court “shall

permit questioning by the parties for the purpose of discovering bases for challenge

                                          -11-
for cause and enabling an intelligent exercise of peremptory challenges.” Tenn. R.

Crim. P. 24(a). The supervision of voir dire rests within the sound discretion of the

trial court. State v. Cazes, 875 S.W.2d 253, 262 (Tenn. 1994), cert. denied, 115 S.

Ct. 743 (1995). As a result, this Court must uphold the ruling of the trial court unless

the defendant establishes the existence of a clear abuse of that discretion. State v.

Raspberry, 875 S.W.2d 678, 681 (Tenn. Crim. App. 1993).



       Here, the trial court expressed concern that the open-ended questions posed

by defense counsel left the prospective jurors uncertain as to how to respond. It

appears from our reading of the record that this concern centered on the manner in

which the questions were asked, not the information the questions were designed to

elicit. Requiring defense counsel to ask clearer, more-pointed and understandable

questions is not an abuse of discretion. We do not believe that the trial court limited

defense counsel’s ability to conduct an effective voir dire.



                       VI. SUFFICIENCY OF THE EVIDENCE

       Appellant alleges that the evidence presented at trial is legally insufficient to

sustain a conviction for the January 9, 1995 aggravated sexual battery. He argues

that neither the victim’s testimony nor his statement to authorities establishes that

any unlawful sexual contact occurred on January 9.



       When an appeal challenges the sufficiency of the evidence, the standard of

review is whether, after viewing the evidence in the light most favorable to the State,

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, 318 (1979); State v.

Evans, 838 S.W.2d 185, 190-91 (Tenn. 1992); Tenn. R. App. P. 13(e). On appeal,

the State is entitled to the strongest legitimate view of the evidence and all

reasonable or legitimate inferences which may be drawn therefrom. State v.

                                          -12-
Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). This Court will not reweigh the

evidence, re-evaluate the evidence, or substitute its evidentiary inferences for those

reached by the jury. State v. Carey, 914 S.W.2d 93, 95 (Tenn. Crim. App. 1995).

Furthermore, in a criminal trial, great weight is given to the result reached by the

jury. State v. Johnson, 910 S.W.2d 897, 899 (Tenn. Crim. App. 1995).



       Once approved by the trial court, a jury verdict accredits the witnesses

presented by the State and resolves all conflicts in favor of the State. State v.

Williams, 657 S.W.2d 405, 410 (Tenn. 1983). The credibility of witnesses, the

weight to be given their testimony, and the reconciliation of conflicts in the proof are

matters entrusted exclusively to the jury as trier of fact. State v. Sheffield, 676

S.W.2d 542, 547 (Tenn. 1984). A jury’s guilty verdict removes the presumption of

innocence enjoyed by the defendant at trial and raises a presumption of guilt. State

v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). The defendant then bears the

burden of overcoming this presumption of guilt on appeal. State v. Black, 815

S.W.2d 166, 175 (Tenn. 1991).



       According to the indictment, Appellant committed three acts of aggravated

sexual battery upon the victim, one of which occurred on January 9. As Appellant

correctly points out, not only did the State fail to offer sufficient evidence to support

its theory that Appellant committed aggravated sexual battery on January 9, but the

victim actually testified during direct examination that no sexual contact occurred

after January 7. However, as stated previously, the actual date of the commission

of an offense may be different than that charged in the indictment so long as the

proof establishes that the offense occurred prior to the finding and returning of the

indictment. See Chance, 778 S.W.2d at 462; see also Perry, 1995 WL 433319, at

*3. During her testimony, the victim detailed three forms of sexual contact: (1)

Appellant touched her “downer part” with his hands; (2) Appellant touched her

                                           -13-
“downer part” with his mouth; and (3) Appellant touched her “downer part” with his

“downer part.” The indictment sets out only these three incidents of unlawful

conduct. The fact that there is an inconsistency between the victim’s testimony and

the indictment with regard to the January 9 battery is immaterial under the prior

holdings of this Court. Therefore, we find that, when viewed in a light most

favorable to the State, the evidence is sufficient to sustain all three convictions for

aggravated sexual battery.



                                     VII. ELECTION

       Appellant alleges that trial court erred in failing to require the State to make

an election as to the set of facts relied upon for each charged offense. He argues

that J.H.’s testimony established more than the three instances of unlawful sexual

contact charged in the indictment.



       Under Tennessee law, a defendant has a fundamental constitutional right to

a unanimous verdict before a conviction for a criminal offense may be imposed.

State v. Shelton, 851 S.W.2d 134, 134 (Tenn. 1993); State v. Brown, 823 S.W.2d

576, 583 (Tenn. Crim. App. 1991). Protection of this right often requires "special

precautions [by the court] to ensure that the jury deliberates over the particular

charged offense, instead of creating a 'patchwork verdict' based on different

offenses in evidence." Shelton, 851 S.W.2d at 134. Where there is evidence of

multiple offenses, the precaution is the doctrine of election, requiring the State to

elect and identify at the end of its case-in-chief the exact offense for which it seeks

conviction. Id.; Burlison v. State, 501 S.W.2d 801, 804 (Tenn. 1973). The

Tennessee Supreme Court has made the following observation:

       We appreciate the difficulties involved in prosecuting cases
       of sexual abuse committed against small children. In such
       cases, the rules of evidence and the rules of procedure have
       been relaxed to some extent to accommodate very young
       witnesses. Nevertheless, the constitutional protections

                                     -14-
       guaranteed a criminal defendant, who is presumed by law to
       be innocent until proven guilty, cannot be suspended
       altogether because of the victim's age or relative inability to
       testify. In cases such as this one, the state must either limit
       the testimony of prosecuting witnesses to a single event, or
       prepare the case so that an election can be made before the
       matter is submitted to the jury to decide.

Shelton, 851 S.W.2d at 139.



       Here, the State limited the testimony of the victim to three specific incidents

of unlawful sexual conduct. The victim testified that Appellant touched her “downer

part” with his hands, his mouth, and his “downer part.” With the exception of the

exact timing of the incidents and the specific description of the contact, all evidence

presented to the jury, including Appellant’s own statement and testimony, remained

consistent with the State’s theory. Because the evidence established only one

unlawful incident for each count in the indictment, a “patchwork verdict” was not

possible and election was therefore not necessary. See Shelton, 851 S.W.2d at

136.




                                 VIII. SENTENCING

       Finally, Appellant alleges that his sentence is excessive. Specifically,

Appellant argues that the trial court erred in determining the length of his sentence

and in imposing consecutive sentences.



       When an appeal challenges the length, range, or manner of service of a

sentence, this Court conducts a de novo review with a presumption that the

determination of the trial court was correct. Tenn. Code Ann. § 40-35-401(d).

However, this presumption of correctness is “conditioned upon the affirmative

showing that the trial court in the record considered the sentencing principles and all

                                          -15-
relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn.

1991). In the event that the record fails to demonstrate such consideration, review

of the sentence is purely de novo. Id. If appellate review reflects that the trial court

properly considered all relevant factors and its findings of fact are adequately

supported by the record, this Court must affirm the sentence. State v. Fletcher, 805

S.W.2d 785, 789 (Tenn. Crim. App. 1991). In conducting a review, this Court must

consider the evidence, the presentence report, the sentencing principles, the

arguments of counsel, the nature and character of the offense, mitigating and

enhancement factors, any statements made by the defendant, and the potential for

rehabilitation or treatment. State v. Holland, 860 S.W.2d 53, 60 (Tenn. Crim. App.

1993). The defendant bears the burden of showing the impropriety of the sentence

imposed. State v. Gregory, 862 S.W.2d 574, 578 (Tenn. Crim. App. 1993).



       Appellant was convicted of three counts of aggravated sexual battery, a

Class B felony. See Tenn. Code Ann. § 39-13-504(b). As a Range I standard

offender convicted of a Class B felony, Appellant’s statutory sentencing range for

each conviction was eight to twelve years. See id. § 40-35-112(a)(2). The trial court

found the following enhancement factors applicable to each conviction:

       (1) the defendant has a previous history of criminal
       convictions or criminal behavior in addition to those
       necessary to establish the appropriate range; and

       (2) the defendant abused a position of public or private trust.

Id. § 40-35-114(1), (15). The trial court found the following mitigating factor

applicable to each conviction but gave it little weight:

       (1) the defendant’s criminal conduct neither caused nor
       threatened serious bodily injury.

Id. § 40-35-113(1). The trial court then imposed a mid-range sentence of eleven

years for each offense, ordering two of the sentences served concurrently but the




                                           -16-
third served consecutively, for an effective sentence of twenty-two years. We will

address each of Appellant’s sentencing arguments in turn.



                             A. LENGTH OF SENTENCE

       Appellant first maintains that the trial court erred in determining the length of

his sentence by improperly applying certain enhancement factors and failing to

apply certain mitigating factors.



       In the absence of enhancement and mitigating factors, the presumptive

length of sentence for a Class B, C, D, and E felony is the minimum sentence in the

statutory range while the presumptive length of sentence for a Class A felony is the

midpoint in the statutory range. Tenn. Code Ann. § 40-35-210(c). Where one or

more enhancement factors apply but no mitigating factors exist, the trial court may

sentence above the presumptive sentence but still within the range. Id. § 40-35-

210(d). Where both enhancement and mitigating factors apply, the trial court must

start at the minimum sentence, enhance the sentence within the range as

appropriate to the enhancement factors, and then reduce the sentence within the

range as appropriate to the mitigating factors. Id. § 40-35-210(e). The weight

afforded an enhancement or mitigating factor is left to the discretion of the trial court

so long as the trial court complies with the purposes and principles of the

Tennessee Criminal Sentencing Reform Act of 1989 and its findings are supported

by the record. State v. Hayes, 899 S.W.2d 175, 185 (Tenn. Crim. App. 1995).



                         1. PREVIOUS CRIMINAL HISTORY

       Appellant argues that the trial court improperly applied enhancement factor

(1), concerning his previous criminal history. Appellant concedes that his pre-

sentence report reveals two convictions for driving under the influence of an

intoxicant, a conviction for driving with a suspended license, and a conviction for

                                          -17-
speeding but argues that these offenses cannot be considered under enhancement

factor (1) because they are dissimilar to his current offenses. However, nothing in

the Sentencing Act requires that prior convictions be similar in nature to the

conviction in question. Moreover, this Court has previously allowed consideration of

such driving-related offenses when applying enhancement factor (1). See, e.g.,

State v. Ruane, 912 S.W.2d 766, 784 (Tenn. Crim. App. 1995)(driving with a

revoked license); State v. Miller, No. 01C01-9309-CR-00329, 1994 WL 236014, at

*6 (Tenn. Crim. App. June 2, 1994), perm. app. denied (Tenn. Sept. 12,

1994)(driving under the influence of an intoxicant and driving with a revoked

license); State v. Upman, No. 03C01-9402-CR-00052, 1994 WL 396355, at *5

(Tenn. Crim. App. Aug. 2, 1994)(speeding); State v. Hurt, No.

01C01-9306-CC-00189, 1993 WL 503713, at *3 (Tenn. Crim. App. Dec. 9,

1993)(speeding); State v. Boswell, No. 2, 1991 WL 2866, at *1 (Tenn. Crim. App.

Jan. 16, 1991)(driving with a suspended license and speeding). Thus, we conclude

that the trial court’s application of enhancement factor (1) was proper.



       2. NEITHER CAUSED NOR THREATENED SERIOUS BODILY HARM

        Appellant argues that the trial court should have applied mitigating factor (1),

providing that “[t]he defendant’s conduct neither caused nor threatened serious

bodily injury.” It is apparent from the record that the trial court did apply this

mitigating factor but chose to give it little weight, stating “serious bodily injury did not

occur here. There’s no doubt about that. You know, I will give him some benefit . . .

.”   As stated previously, the weight afforded a mitigating factor is left to the

discretion of the trial court so long as it complies with the purposes and principles of

the Sentencing Act and its findings are supported by the record. See Hayes, 899

S.W.2d at 185. W e do not believe that the trial court has abused its discretion in

this area and thus decline to afford any more weight to this mitigating factor.



                                            -18-
                  3. NON-STATUTORY MITIGATING FACTORS

      Finally, Appellant argues that the trial court should have considered other

non-statutory mitigating factors pursuant to Tennessee Code Annotated Section 40-

35-113(13). Specifically, Appellant points to the fact that he turned himself in and

gave a statement to the authorities. While Appellant did voluntarily make a

statement to authorities, he subsequently denied its accuracy and moved to exclude

it from evidence. We do not believe that Appellant’s actions warrant consideration

as a mitigating factor. Even if given some marginal weight, we do not believe that

such actions justify a reduction in his mid-range sentence.



                         B. CONSECUTIVE SENTENCING

      Appellant also contends that the trial court erred in imposing consecutive

sentences. When imposing sentences for multiple offenses, the trial court has the

discretion to order the sentences served concurrently or consecutively. Tenn. Code

Ann. § 40-20-111(a). The imposition of consecutive sentences is appropriate if the

defendant has been convicted of more than one offense and the trial court finds, by

a preponderance of the evidence, one or more of the following criteria:

               (1) The defendant is a professional criminal who has
      knowingly devoted himself to criminal acts as a major source
      of livelihood;
               (2) The defendant is an offender whose record of
      criminal activity is extensive;
               (3) The defendant is a dangerous mentally abnormal
      person so declared by a competent psychiatrist who
      concludes as a result of an investigation prior to sentencing
      that the defendant's criminal conduct has been
      characterized by a pattern of repetitive or compulsive
      behavior with heedless indifference to consequences;
               (4) The defendant is a dangerous offender whose
      behavior indicates little or no regard for human life, and no
      hesitation about committing a crime in which the risk to
      human life is high;
               (5) The defendant is convicted of two (2) or more
      statutory offenses involving sexual abuse of a minor with
      consideration of the aggravating circumstances arising from
      the relationship between the defendant and victim or victims,
      the time span of defendant’s undetected sexual activity, the
      nature and scope of the sexual acts and the extent of the

                                    -19-
       residual, physical and mental damage to the victim or
       victims;
              (6) The defendant is sentenced for an offense
       committed while on probation; or
              (7) The defendant is sentenced for criminal contempt.

Tenn. Code Ann. § 40-35-115(b).



       Here, the trial court relied upon subsection (5) in ordering consecutive

sentences. Appellant argues that this reliance is misplaced because of the short-

term nature of the abuse. However, the time-span of the undetected unlawful

conduct is but one consideration under subsection (5). The remaining

considerations include the relationship between the defendant and the victim, the

nature and scope of the sexual acts, and the extent of the residual, physical and

mental damage to the victim. See Tenn. Code Ann. § 40-35-115(b)(5). In

accordance with the statute, the trial court made the following findings: (1) Appellant

was the victim’s uncle, resided with her, and, along with his wife, was responsible for

her care; (2) the offenses involved three different forms of unlawful contact,

including an incident where Appellant lay nude in the bed with the victim; and (3) the

victim suffers from some residual mental problems.      In light of these findings, most

significantly the relationship between Appellant and the victim, we do not believe

that the trial court abused its discretion in imposing consecutive sentences. We

further believe that consecutive sentences are necessary to protect the public from

Appellant’s possible future criminal conduct and that the aggregate sentence is

reasonably related to the severity of Appellant’s present offenses. See State v.

Woodcock, 922 S.W.2d 904, 915 (Tenn. Crim. App. 1995).



       Accordingly, the judgment of the trial court is affirmed.



                                   ____________________________________
                                   JERRY L. SMITH, JUDGE


                                          -20-
CONCUR:



___________________________________
GARY R. WADE, JUDGE


___________________________________
DAVID H. WELLES, JUDGE




           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT KNOXVILLE           FILED
                       OCTOBER 1996 SESSION      December 23, 1997

                                                  Cecil Crowson, Jr.
                                                  Appellate C ourt Clerk


  STATE OF TENNESSEE,           *     C.C.A. # 03C01-9603-CC-00109

        Appellee,          *    SEVIER COUNTY

  VS.                      *    Hon. Rex Henry Ogle, Judge

  JERRY LYNN WALDE,        *    (Aggravated Sexual Battery-3 Counts)

        Appe llant.        *
                               DISSENTING OPINION

              I concur with the results as to the defendant's first, second, fourth,

fifth and seventh issues. I agree with the resolution of the third issue (Section

IV), but disagree as to the rationale. I dissent, however, based upon the

court's res olution of th e sixth issu e.



                                             I.

              In his third issue, the defendant argued that the trial court erred

by not pe rmitting him to redac t his statem ent prior to its a dmiss ion in evide nce.

The majority distinguishes this case from State v. Rickman, 876 S.W.2d 824

(Tenn . 1994), to c onclud e that the d efenda nt's statem ent is adm issible in its

entirety. I agree that the statement is admissible in its entirety, but see no

reason to distinguish Rickman from the facts here, particularly as to whether

these incide nts sh owed a patte rn of ab use th at wou ld lead a jury to im prope rly

convict the defend ant.



              In Rickman, the indictment charged unlawful contact on August

11. Rickman's statement as to unlawful contact before August 11 was

redacted because it was "wholly independent from the sex crime for which the

defendant was indicted." The supreme court cited to Bunch v. State, 605

S.W.2d 227, 229 (Tenn. 1980), for the general rule:

              It is well established, of course, that in a criminal trial
              evidence that the defendant has committed some
              other crime wholly independent of that fo r which he is
              charged, even though it is a crime of the same

                                            -22-
              chara cter, is u sually n ot adm issible b ecau se it is
              irrelevant.

Id., 876 S.W.2d at 827 (emphasis added). The court in Rickman affirmed the

special rule articulated in State v. Shelton, 851 S.W .2d 134 (Te nn. 1993),

which allowed evidence of other sex crimes

              when [the] indictment is not time specific and when
              the evid ence relates to sex c rimes that alle gedly
              occurred during the time as charged in the
              indictment. In such cases, the State must elect at
              the close of its proof-in-chief as to the particular
              incident fo r which a conviction is being so ught.

Id. at 829.



              Recently, our supreme court, after review of Rules 401, 402, and

404(b), Tenn. R. Evid., determined that the standard of appellate review, after

the trial court had allowed evidence of relevant prior bad acts, is abuse of

discretion so long a s the trial cou rt comp lied with the proced ural requ iremen ts

of the rules . State v. James DuBose, No. 01S 01-960 2-CC -00029 , slip op. at 7

(Tenn ., at Nash ville, Sept. 29 , 1997). H ere, the trial jud ge hea rd argum ents

outside the presence of the jury on the defendant's pre-trial motion to redact

his statement. The following appears in the record:

              THE COUR T: Well, he says here that this happened
              over a period of two weeks. So I think in all candor
              with you that that will have to be admissible. You
              know, if he's not clear on the time frame and as I
              understand the case law in regards to the testimony
              of underage victims, the appellate courts have given
              a lot greater leeway on those types of cases and
              those types of victims obviously than they have other
              cases. And in fact, as we know on other cases,
              you've got to b e pretty dogg oned spec ific. But I d on't
              think, at least based on his own statement, he's clear
              as to the tim e frame .



                                           -23-
              DEFENS E COUN SEL: It's not clear, but the phrase
              "about two weeks ago" could mean as early as
              December 29th.

              THE COUR T: It very well could be.

              DEFENSE COUNSEL: ...or possibly a day or two
              earlier.

              THE COUR T: And so after I hear the proof, you
              know, it may be such that as to at least one of the
              coun ts it ma y not fly, I d on't kn ow. Yo u kno w, we'll
              see a bout th at as it co mes in, but in regard s to his
              statem ent, be caus e it is not c lear, yo u kno w, I don 't
              think it can be redacted.

Thu s, the tria l court ru led tha t the inc idents includ ed in th e defe ndan t's

statement could have been the same incidents for which he was indicted and

not, therefore, prior acts. Under the appropriate standard of review, that

decis ion, in m y view, s hould be up held. T he inc idents in the d efend ant's

statem ent are not "wh olly inde pend ent" of th e pen ding c harge s, and Rule

404(b ), Ten n. R. E vid., doe s not e xclude the inc idents as irrele vant an d und uly

prejudicial prior bad acts.



                                             II.

              As to the defendant's sixth issue on election, I disagree with the

majority of this court as to both the rationale and the result. The law on

election h as bee n prima rily framed by three m ajor case s. Burlison v. State,

501 S.W .2d 801 (Tenn . 1973); State v. Shelton, 851 S.W.2d 134 (Tenn.

1993); and Tidwe ll v. State, 922 S.W .2d 497 (Tenn . 1996).



              In Burlison our supreme court considered a number of cases for

guidance in its ruling, including Jamis on v. State , 94 S.W . 675 (T enn. 19 06).


                                            -24-
In Jamison, where the indictment charged unlawful sexual contact on a

particular d ay, the state introduce d proof o f several ac ts of unlaw ful contac t;

the trial cou rt denied defend ant's mo tion for elec tion. On a ppeal the state

argued that violation of the age of consent law was a continuous offense. The

supreme court held as follows:

              [T]he State c ould b e requ ired to e lect the spec ific
              offense upon which a verdict of guilty would be
              dema nded, fo r three fun dame ntal reaso ns. First, to
              enab le the d efend ant to p repar e for an d ma ke his
              defense to the specific charge; second, to protect
              him from double jeopardy by individualization of the
              issue, and third, so that the jury's verdict may not be
              a matter of cho ice between offenses, som e jurors
              convicting on on e offense an d others, anoth er.

Burlison, 501 S.W.2d at 803 (discussing the ruling in Jamison, which has been

distinguished a nd partially overruled by Rickman on an unre lated issue).



              The court in Burlison next cited Vinson v. State, 203 S.W. 338

(Tenn. 1918), and Cox v. Sta te, 270 S.W.2d 182 (Tenn. 1954). In Vinson,

the defendant was indicted for violating the age of consent law in the month of

Septem ber. At trial, the state offered pro of of violations in July, Septem ber,

and December. The defense request for an election was denied. The

supreme court reversed because the "error committed immediately touched

the con stitutional righ ts of the de fendan t . . . ." Id. In Cox, the suprem e court

had ruled that the purpose of election is so the "jury will then know for which

offense the State seeks a conviction, and will all vote upon guilt or innocence

for that par ticular offen se." Id.




                                          -25-
              After e xamin ing the rulings on ea ch of th ese c ases , the co urt in

Burlison held as fo llows:

              [I]t was the duty of the trial judge to require the State,
              at the close of its proof-in-chief, to elect the particular
              offens e of ca rnal kn owled ge up on wh ich it wo uld rely
              for conviction, and to properly instruct the jury so that
              the verdict of every juror would be united on the one
              offense.

Id. at 804.



              In Shelton, the indictment charged unlawful sexual penetration of

one victim and unlawful sexual contact of two other victims on or about the

___ day of ___, 1989. The time was narrowed to April through September of

that year. In lieu of election, the trial court gave a specific instruction to the

jury:

              You cannot in your verdict find that the defendant
              committed more than one offense against each
              alleged victim. The law requires that every juror be
              united on the one a lleged offens e in ea ch co unt in
              the indictment. If you find beyond a reasonable doubt
              that there has be en mo re than o ne allege d offense to
              an alleged victim you must isolate your verdict on the
              first alleged occurren ce after April 7, 1989 and before
              September 6, 1989, as to each victim.

Shelton, 851 S.W.2d at 136. The supreme court held that this instruction was

an inad equate substitute for election . Id. Citing to the three basic reasons for

election, as confirmed in Burlison, the court c onclud ed that alth ough th e "state

is not requ ired to iden tify the particu lar date of th e chos en offen se ... the state

must either limit the testimony of prosecuting witnesses to a single event, or

prepa re the c ase s o that a n elec tion ca n be m ade b efore th e ma tter is

subm itted to the jury to decide . Id. at 137, 13 9.



                                           -26-
              Election is particularly imp ortant in sexual ab use trials where

children te stify. The su preme court disc ussed these sp ecial prob lems in its

Shelton opinion:

              If, for example, the evidence indicates various types
              of abuse, the prosecution may identify a particular
              type of abuse and elect that offense. Moreover, when
              recalling an assault, a child may be able to describe
              unique surroun dings or c ircums tances that help to
              identify an in cident. T he child m ay be ab le to identify
              an as sault w ith refer ence to a m eanin gful eve nt in his
              or her life, su ch as the beginn ing of sch ool, a
              birthda y, or a re lative's vis it. Any d escrip tion tha t will
              identify th e pros ecute d offen se for th e jury is
              sufficient. In fulfilling its obligation under Burlison to
              ensu re that a n elec tion oc curs, th e trial co urt sho uld
              bear in mind that the purpos e of election is to ensu re
              that each juror is con sidering th e sam e occu rrence.
              If the prosecution cannot identify an event for which
              to ask a conviction, then the court cannot be assured
              of a unanimous decision.

Id. at 138.



              Although the right to a unanimous verdict is fundamental, the

failure to elect may be classified as harmless, depending on the

circumstances. In Shelton, one of three victims testified to a single instance of

partial in tercou rse on her birth day. T here w ere m ultiple in dictm ents, b ut only

one charging rape. The jury returned a guilty verdict only as to one count of

aggravated rape for that victim. The court concluded that the "jurors must

have considered the evidence of this particular incident in convicting the

defendant...[and] therefore, the Burlison error... was harmless beyond a

reason able do ubt ...." Id. at 138. As to the s econd victim, ho wever, the cou rt

found the failure to elect was not harmless and reversed the conviction. The

second victim had testified to several occasions of digital fondling and did not


                                           -27-
differentiate the events. The jury returned a guilty verdict to aggravated

sexual b attery. Th e court ru led that the conviction could no t be uph eld due to

the "nature of the evidence presented on this charge and the Burlison error

resulting fro m the s tate's failure to elect. ..." Id. at 139.



               In Tidw ell, the supre me co urt stated th at lack of ce rtainty

regarding the unanimity of the jury's verdict was the more troublesome aspect

of failure to e lect:

               The indictm ents as returne d contain fifty-six counts--
               fourteen each of aggravated rape, statutory rape,
               incest, an d contribu ting to the d elinquen cy of a
               minor. Each count charges the commission of an
               offens e on th e "___ " day of a nam ed m onth. T hus, it
               is quite evid ent that the re is no ap parent m eans to
               differentiate among various counts of the same
               offense. Additionally, the indictments provide no
               mea ns to e nable a fact-fin der to m atch a spec ific
               condu ct to a spe cific count.
                                            ***
               Thus, a defendant's right to a unanimous verdict
               before imposition of conviction requires that trial
               court to take prec autions to ens ure that the jury
               deliberates over the particular charged offense,
               instead of assembling a "patchwork verdict" based
               on the d ifferent offen ses in evid ence.

Id. at 500-0 1.



               Here, the three indictments charge one count each of aggravated

sexual battery on January 7, 9 a nd "___", 199 5. The victim testified to m ore

than thre e inciden ts of such unlawfu l contact:

       1.      "He [defendant] put his downer part on mine [sometimes
               while defenda nt was wea ring clothes]." (Tr. 44).

       2.      "He [defendant] put his downer part on mine [sometimes
               while defe ndant w as not w earing clo thes]." (Tr. 4 4-45).


                                           -28-
       3.      Defe ndan t touch ed victim on he r "dow ner pa rt" with "h is
               hands" ... on top o f her clothes. (Tr. 45-4 6).

       4.      Defe ndan t touch ed victim on he r "dow ner pa rt" with "h is
               hands " ... underne ath her c lothes. (T r. 45-46).

       5.      Defen dant tou ched victim 's "lower pa rt" with "[h]is m outh."
               (Tr. 51).

More troublesome is that the defendant acknowledged several incidents of

unlawful sexual contact in either his confession or his trial testimony. The

statement of the defendant encompassed four instances of sexual

misco nduct:

       1.      "I put my hand over her. I started fe[e]ling he r private part
               on top o f her clothe s."

       2.      "A day o r two la[]ter, I touc h[ed] he r again in h er private
               parts."

       3.      "Three or four days la[]ter I took my clothes off ... she just
               touche d my pe []nis."

       4.      "I touched her v[a]gina... I just rubbed on the outside of her
               v[a]gina."

(See Exhibit #2, Tr. 137). The majority found that the state limited the

testimon y of the victim to three sp ecific incide nts of unla wful sexu al condu ct,

and th erefor e, elec tion wa s not re quired . I cann ot agre e. W hile the victim

testified as to three types of sexual contact, her testimony encompassed at

least five incide nts of u nlawfu l touch ing. Mo reove r, beca use th e victim 's

testimony and the defendant's confession differ, there were other incidents the

jury could h ave use d to conv ict, if they indee d accre dited his co nfession .

These facts are analogous to those in Tidw ell and a s to the seco nd victim in

Shelton in that there is no way to associate a particular event of unlawful

contac t with a spe cific indictm ent.



                                           -29-
              This error was not harmless. At both the close of the state's proof

and the close of all the proof, the defendant requested that the state make an

election as to the offenses. Neither the jury instructions nor the state's closing

argument were curative. The trial judge did not specifically instruct the jury as

to the requirements for a unanimous verdict. He merely instructed, "your

verdict, whether 'guilty' or 'not guilty' must be unanimous." In addition, during

its closing argument, the state did not limit their recitation of the proof to any

three sp ecific instan ces. Ra ther, the sta te sugg ested tha t the jury belie ve both

the de fenda nt's co nfess ion an d the vic tim's te stimo ny as w ell.



              On this basis, I would ordinarily remand to the trial court for a new

trial.




_________________________________
                              Gary R. Wade, Judge




                                           -30-
