                                                                                         08/29/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs June 25, 2019

         STATE OF TENNESSEE v. MICHAEL ANDREW LETHCO

                 Appeal from the Criminal Court for Monroe County
                        No. 585510 Sandra Donaghy, Judge
                     ___________________________________

                           No. E2018-01042-CCA-R3-CD
                       ___________________________________


The defendant, Michael Andrew Lethco, was convicted of aggravated sexual battery for
which he received a nine-year sentence. On appeal, he challenges the sufficiency of the
evidence supporting his conviction and asserts the State elicited improper testimony from
the victim regarding other instances of abuse which prejudiced the defendant. Upon our
thorough review of the record, we affirm the judgment of the trial court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

J. ROSS DYER, J., delivered the opinion of the court, in which NORMA MCGEE OGLE and
ROBERT H. MONTGOMERY, Jr., JJ., joined.

Steven B. Ward, Madisonville, Tennessee, for the appellant, Michael Andrew Lethco.

Herbert H. Slatery III, Attorney General and Reporter; Garrett D. Ward, Assistant
Attorney General; Stephen D. Crump, District Attorney General; and Dorothy Cherry and
Clay Collins, Assistant District Attorneys General, for the appellee, State of Tennessee.

                                       OPINION

                              Facts and Procedural History

        A Monroe County grand jury indicted the defendant for one count of aggravated
sexual battery committed against his nine-year-old daughter, the victim. The crime
occurred in 2012, but the victim did not disclose the defendant’s abuse until 2014. When
the defendant’s trial began in 2017, the victim was thirteen years old. At trial, she
testified that after her parents separated in 2012, the defendant moved into a one-bedroom
apartment for approximately two months. The victim frequently visited the defendant
and often spent the night with him. During the visits, the victim slept in the bed with the
defendant rather than on the couch in the living room. She slept in Pull-Ups and a t-shirt
while the defendant wore “just shorts.” The victim testified she did not know why no one
slept on the couch in the living room during her visits. However, on cross-examination,
she acknowledged there were hornets in the ceiling fan in the living room.

       During one visit, the defendant came to bed as the victim “was about to go to
sleep.” The victim was lying with her back to the defendant when he “reached over,” put
his arm around her waist, and “then put his finger in [her] vagina.” The defendant did not
move his hand while it was in her vagina, but the victim described the act as painful. To
make the defendant stop, the victim “rolled over, like away from him.”

       The victim stated she did not discuss the incident with the defendant, but she did
tell her mother. However, the victim explained she waited “a long time” to tell her
mother because she was scared and she “didn’t know what was going on.” After telling
her mother, the victim no longer visited the defendant. The victim also testified the
defendant usually snored in his sleep, but he was not snoring before he touched her. The
abuse occurred more than once, but the victim did not know how many times it
happened. After the defendant began dating someone, the victim no longer slept in the
bed with him during her visits.

       The victim’s mother, the defendant’s ex-wife, stated after they separated in 2012,
the defendant rented an apartment on Ball Play Road in Monroe County, Tennessee, for
approximately two months. While living at the apartment, the victim visited the
defendant “twenty or thirty times.” At the time, the victim wore Pull-Ups to bed.

       Though the victim did not disclose the defendant’s abuse until 2014, her mother
stated the victim mentioned the abuse in passing in 2013. The victim’s mother
questioned her further and confronted the defendant. The defendant “kind of brushed it
off and said nothing happened,” and the victim’s mother did nothing further. After the
victim’s disclosure in 2014, her mother reported the abuse to the Department of
Children’s Services. The victim’s mother did not confront the defendant again, and the
victim no longer visited him.

       The victim’s mother and the defendant divorced in late February or early March
2014. She described the defendant’s sleeping habits during their marriage, noting he fell
asleep quickly, was a sound sleeper, and snored in his sleep. She also stated the
defendant once attempted to have sex with her while he was asleep. The defendant woke
up prior to ejaculating and apologized to her.

      Courtney Stapp, a child protective services investigator for the Department of
Children’s Services, interviewed the victim on March 25, 2014, and set up a forensic
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interview of the victim on April 9, 2014. Ms. Stapp also interviewed the defendant and
the victim’s mother. Ms. Stapp could not recall if she questioned the mother about the
defendant’s sleeping habits. Further, Ms. Stapp did not speak with Samantha Lethco, the
defendant’s current wife.1

       During Ms. Stapp’s testimony, the State offered into evidence two recorded
interviews of the defendant. The first interview consisted of video footage of Detective
Tonia Norwood’s initial interview of the defendant. The second interview included a
voice recording of the defendant’s testimony given during an adjudication hearing in
Juvenile Court for Anderson County on July 15, 2014. The trial court provided a limiting
instruction to the jury in response to each recording, stating evidence of other crimes
mentioned in the recordings “may only be considered by you for the limited purpose of
determining whether it provides the complete story of the crime or guilty knowledge.”2

        After the State rested its case, the defendant presented testimony from his mother,
Lydia Gail Lethco, and Samantha Lethco, regarding his sleeping habits. Lydia testified
the defendant is a heavy sleeper who has always had difficulty waking up, noting alarm
clocks do not suffice. Instead, he requires either physical touching or light to wake him.
Lydia also stated the defendant occasionally did things in his sleep of which he was
unaware. For example, when the defendant was seven years old, he woke up outside in
the yard of their home but had no memory of how he got there. She stated the defendant
still has sleep issues.

       Regarding the present allegations, the defendant told Lydia “that he was asleep
and woke up with his hand in the waistband of [the victim’s] Pull-Up, and that he pulled
it away immediately. And that he was ashamed of it. And he was very sorry that it
happened.” Lydia was unaware the victim alleged the defendant touched her on multiple
occasions and stated she has had limited contact with the victim since the allegations
emerged.

       Samantha started dating the defendant on October 13, 2012. In February 2013,
she and her three children began living with the defendant. She stated her children do not
sleep with the defendant, but she would let them. She also described the defendant as a
sound sleeper and noted she typically has to push or shake him in order to wake him.
The defendant usually wears boxers or shorts to bed and has attempted to climb things
and has engaged in conversations with her while asleep. In addition, the defendant has
       1
       Because several witnesses have the same last name, Lethco, we will refer to them by their first
name. We intend no disrespect.
       2
          In the recordings, the defendant denied touching the victim on more than one occasion despite
references to the victim’s statements that the defendant touched her more than once.
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had sex with her while asleep but had no memory of it the next morning. Samantha
provided an example, stating one night they had sex and the defendant woke up the next
morning with scratches on his back. When he questioned her about the scratches,
Samantha stated they happened during sex. The defendant, however, stated he had no
memory of having sex with her the previous night and claimed he was asleep while they
had sex.

        Nathan Brackett also testified on the defendant’s behalf, describing him as hard-
working, honest, and dependable. In the six years he has known the defendant, Mr.
Brackett has never seen the defendant behave in a way that was concerning towards him
or children. Mr. Brackett admitted the defendant did not discuss the reason he was on
trial with him.

        The defendant testified he is thirty-four years old and splits time between living
with his current wife and his parents. Growing up, the defendant occasionally had issues
in his sleep, including walking into door frames, stubbing his toe, and waking up outside.
The defendant explained he continued to have sleep issues as an adult and recalled the
time he woke up while having sex with his ex-wife, the victim’s mother. The defendant
stated his sleep issues were not “always about sex,” noting the issues sometimes revolved
around his previous day or dreams he was having while asleep. According to the
defendant, when these incidents occur, he has “no clue” he has done anything in his
sleep. Despite this knowledge, the defendant testified he still chose to sleep in the bed
with the victim.

       The defendant testified he was married to the victim’s mother for approximately
ten years. The last two years of their marriage they spent separated. After the initial
separation, the defendant rented a one-bedroom apartment on Ball Play Road for about
two months. The ceiling fan in the living room was infested with hornets and as a result,
neither he nor the victim slept on the couch. Instead, they slept in the bed together
because the victim was scared, and she did not want to sleep on a blowup mattress.

        The defendant stated he and the victim only slept in the bed together once, the
night of the incident. That night, the defendant slept in boxers and the victim slept in
Pull-Ups and a t-shirt. The defendant woke up to the victim “moving around a little bit.”
The defendant stated he “normally [] would be a hard sleeper, but we’d just moved into
this place.” When he woke up, his “hand was in [the victim’s] Pull-Up.” The defendant
did not “even know why it was in there. [The victim] had her back to me.” He stated, “I
didn’t touch it intentionally. I just remember waking up with my hand in her Pull-Up on
her vagina area like right above it.” When the defendant realized his hand “was in [the
victim’s] Pull-Up,” he “jerked it out,” and they both went back to sleep. The defendant
believed this happened “pretty late” around “1:00 or 2:00 in the morning.”
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       The next morning, the victim told the defendant he “was rubbing her.” The
defendant “asked her what she meant by rubbing her,” and the victim “just said you were
rubbing me, you know, under my Pull-Up.” He admitted he did not initiate a
conversation with the victim because “[i]t wasn’t the first thing I wanted to speak about
as soon as you got up.” However, according to the defendant, they did discuss the
incident, as follows:

              And we talked about it and I explain -- tried to explain it. I don’t
       know how to explain that to a child, even my own daughter. You know,
       only thing I could think of, I’m used to being in the bed with your mother
       and doing things and never even give a second thought to it, because it’s
       your wife, why would you. Nobody cares about that. And she understood,
       and it never got talked about ever again. Nothin’ -- she never said nothin’
       about it.

During their discussion, the defendant apologized to the victim and asked if he hurt her,
but the victim stated he did not. The defendant assumed the victim would tell her mother,
but she did not and “everything went on as normal.” They never discussed the incident
again, and the defendant no longer “allow[ed] [the victim] to be in the bed with [him].”
The defendant did not discuss the incident with the victim’s mother.

        Over a year later, the defendant received a phone call from Detective Norwood.
Initially, he did not know why Detective Norwood wanted to meet with him, but “they
finally said, that I touched [the victim].” The defendant stated he was “scared and
ashamed” upon realizing the subject matter of the interview and admitted he initially did
not remember the incident while speaking with Detective Norwood as he had “shut it out
of [his] mind.” However, he eventually “told everybody what happened. It was just an
accident. It wasn’t intentional. I didn’t go to bed thinking, I want to do this to my child.
I mean, my gosh. I don’t know why anybody would want to think that.” The defendant
denied any other instances of abuse and stated he was not sexually attracted to young
girls.

        The defendant stated he has not spoken with the victim in almost three years but
wishes he “could have told her sorry again” and if he could speak with her now he would
tell her, “I’m sorry. Will you forgive me?” The defendant blames the victim’s mother
for his current situation and “the exaggeration of the truth” resulting from the victim’s
fear. The defendant agreed he did not remember having sex with individuals during his
sleep but refused to believe he could have abused the victim more than once. The
defendant stated the victim never confronted him about any other instances of abuse. The

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defendant maintained he did not intentionally touch the victim’s vagina and
acknowledged he should have acted differently, specifying:

             I really don’t know what to do in that kind of a room, but not being
      in the bed with her would have been a start. I could [have] made her slept
      on the floor, or I slept in the floor. We both didn’t want to be in the living
      room, you know, at that time. That was the whole time we lived there with
      that problem, was the bee stuff.

The defendant then rested his case.

       At the conclusion of the proof, the State made an election of offenses. In reading
the jury instructions, the trial court specified the State’s election, as follows:

             Election of offense. The State has offered proof in its case-in-chief
      of more than one act allegedly committed by the [d]efendant, which the
      State alleges constitutes an element of the offense of aggravated sexual
      battery as charged in the indictment.

             To ensure a unanimous verdict, the law requires the State to elect
      which alleged act testified to, the State is relying upon for your
      consideration in deciding whether or not the [d]efendant is guilty of this
      offense or any lesser included offense.

             The fact that the Court has required the State to elect, does not mean
      that the State has found the has (sic) carried its burden of proving those
      allegations beyond a reasonable doubt. That is for your determination. I’m
      gonna put an R there. (Indicating)

             In this case, the State has elected to submit for your consideration
      the alleged act of sexual contact occurring at the Ball Play apartment in
      Tellico Plains, Tennessee, when Mr. Lethco woke up with his hand on [the
      victim’s] vagina.

             Members of the Jury, you are to consider only this alleged act in
      deciding whether the Defendant has been proven guilty beyond a
      reasonable doubt of the offense charged and included in the indictment.

       The jury convicted the defendant of one count of aggravated sexual battery. The
trial court sentenced the defendant as a Range I offender and imposed a nine-year

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sentence to be served at 100%. The defendant filed a motion for new trial which was
denied by the trial court. This timely appeal followed.

                                          Analysis

  I.   Sufficiency of the Evidence

       The defendant challenges the sufficiency of the evidence supporting his conviction
for aggravated sexual battery, arguing the State failed to prove he acted intentionally.
The State asserts the evidence was sufficient to support the defendant’s conviction, and
we agree.

        When the sufficiency of the evidence is challenged, the relevant question for the
reviewing court 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 (1979); see also
Tenn. R. App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or
jury shall be set aside if the evidence is insufficient to support the findings by the trier of
fact of guilt beyond a reasonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-92
(Tenn. 1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992). All
questions involving the credibility of witnesses, the weight and value to be given the
evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas, 754
S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by
the trial judge, accredits the testimony of the witnesses for the State and resolves all
conflicts in favor of the theory of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn.
1973). Our supreme court has stated the rationale for this rule:

              This well-settled rule rests on a sound foundation. The trial judge
       and the jury see the witnesses face to face, hear their testimony and observe
       their demeanor on the stand. Thus the trial judge and jury are the primary
       instrumentality of justice to determine the weight and credibility to be
       given to the testimony of witnesses. In the trial forum alone is there human
       atmosphere and the totality of the evidence cannot be reproduced with a
       written record in this Court.

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d
523 (1963)). “A jury conviction removes the presumption of innocence with which a
defendant is initially cloaked and replaces it with one of guilt, so that on appeal a
convicted defendant has the burden of demonstrating that the evidence is insufficient.”
State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

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       Guilt may be found beyond a reasonable doubt where there is direct evidence,
circumstantial evidence, or a combination of the two. State v. Matthews, 805 S.W.2d
776, 779 (Tenn. Crim. App. 1990) (citing State v. Brown, 551 S.W.2d 329, 331 (Tenn.
1977); Farmer v. State, 343 S.W.2d 895, 897 (Tenn. 1961)). The standard of review for
sufficiency of the evidence “‘is the same whether the conviction is based upon direct or
circumstantial evidence.’” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011)
(quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). The jury as the trier of
fact must evaluate the credibility of the witnesses, determine the weight given to
witnesses’ testimony, and reconcile all conflicts in the evidence. State v. Campbell, 245
S.W.3d 331, 335 (Tenn. 2008) (citing Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim.
App. 1978)). Moreover, the jury determines the weight to be given to circumstantial
evidence and the inferences to be drawn from this evidence and the extent to which the
circumstances are consistent with guilt and inconsistent with innocence are questions
primarily for the jury. Dorantes, 331 S.W.3d at 379 (citing State v. Rice, 184 S.W.3d
646, 662 (Tenn. 2006)). This Court, when considering the sufficiency of the evidence,
shall not reweigh the evidence or substitute its inferences for those drawn by the trier of
fact. Id.

       The defendant was convicted of aggravated sexual battery. “Aggravated sexual
battery is unlawful sexual contact with a victim by the defendant” where “the victim is
less than thirteen years of age.” Tenn. Code Ann. § 39-13-504. “‘Sexual contact’
includes the intentional touching of the victim’s[] [or] the defendant’s . . . intimate parts,
or the intentional touching of the clothing covering the immediate area of the victim’s[]
[or] the defendant’s . . . intimate parts, if that intentional touching can be reasonably
construed as being for the purpose of sexual arousal or gratification.” Tenn. Code Ann. §
39-13-501(6).

        At trial, the victim detailed the defendant’s actions supporting his conviction for
aggravated sexual battery. The testimony established the victim’s parents separated in
2012, after which the defendant moved into a one-bedroom apartment on Ball Play Road.
At the time, the victim was eight years old and required Pull-Ups at night. When the
victim visited the defendant at the apartment, she slept in the bed with him. The victim
testified one night after the defendant came to bed, he reached across her waist and put
his hand under her Pull-Up and his finger in her vagina. The victim rolled away from the
defendant, and the defendant removed his hand. The defendant argued he was asleep
when he touched the victim’s vagina but admitted to sleeping in the bed with the victim
and to waking up one night with his hand in her Pull-Up. Though the defendant denied
he intentionally touched the victim because he was asleep during the act, the jury was not
persuaded as evidenced by their verdict. This Court will not reweigh the evidence or
substitute its inferences for those drawn by the trier of fact. Dorantes, 331 S.W.3d at

                                            -8-
379. Accordingly, sufficient evidence exists to show the defendant committed
aggravated sexual battery against the victim and the defendant is not entitled to relief.

 II.   Improper Testimony

       The defendant asserts he was prejudiced when the State elicited testimony from
the victim regarding “multiple” instances of abuse. The defendant also asserts “the State
repeatedly, engaged in conduct designed to convince the jury that there were multiple
offenses.” We disagree and initially note the defendant has failed to identify the victim’s
testimony or the State’s conduct he alleges was improper. Absent “appropriate
references to the record,” this issue is waived. Tenn. R. App. P. 27.

       However, aside from waiver, the defendant still is not entitled to relief as the
record indicates the State elected the offense upon which it relied and the trial court
properly instructed the jury on the election. Tennessee courts have repeatedly held that
the State must elect the particular offense for which a conviction is sought and must
instruct the jury as to the need for jury unanimity regarding the finding of the particular
offense elected. See, e.g., State v. Brown, 762 S.W.2d 135, 137 (Tenn. 1998); State v.
Walton, 958 S.W.2d 724, 727 (Tenn. 1997); State v. Shelton, 851 S.W.2d 134, 136 (Tenn.
1993); Burlison v. State, 501 S.W.2d 801, 804 (Tenn. 1973). As noted by our supreme
court, “the constitutional guarantee of juror unanimity is readily satisfied . . . because it is
a general rule that evidence the defendant has committed ‘some other crime wholly
independent of that for which he is charged, even though it is a crime of the same
character’ is generally excluded as ‘irrelevant.’” State v. Qualls, 482 S.W.3d 1, 9 (Tenn.
2016) (quoting State v. Rickman, 876 S.W.2d 824, 827 (Tenn.1994) (internal quotations
omitted); see also Tenn. R. Evid. 404(a) & (b). This rule is “relaxed in the sex crimes
context, specifically in cases where the defendant is alleged to have committed sexual
offenses over a lengthy period of time against young children who are often unable to
identify the dates on which particular acts were perpetrated.” Id. (internal citations
omitted). “Therefore, ‘where the indictment charges that sex crimes occurred over a span
of time,’ rather than on specific dates, then ‘evidence of unlawful sexual contact between
the defendant and the victim allegedly occurring during the time charged in the
indictment is admissible.’” Id. (citing Rickman, 876 S.W.2d at 828).

       Here, the record indicates the victim answered affirmatively when asked if the
defendant touched her on more than one occasion while visiting the apartment on Ball
Play Road. As a result, the State made an election of offenses at the conclusion of the
proof in order to effectively limit the jury’s consideration of the facts to support a
conviction for aggravated sexual battery. The State defined the crime as “the alleged act
of sexual contact occurring at the Ball Play apartment in Tellico Plains, Tennessee, when
Mr. Lethco woke up with his hand on [the victim’s] vagina.” As noted above, the
                                             -9-
testimony elicited at trial was sufficient to support the elected offense as the victim
testified the defendant put his finger in her vagina while sleeping in the bed with her at
the Ball Play apartment. The jury rejected the defendant’s argument, that he was asleep
while he touched the victim, and convicted him for his act. Accordingly, based upon our
review of the record, we conclude the State effectively elected the specific offense upon
which it relied in convicting the defendant, a point the defendant concedes. The trial
court also provided a limiting instruction to the jury regarding references to additional
instances of abuse. As a result, the brief references to other instances of abuse by the
victim did not prejudice the defendant or risk the unanimity of the jury’s verdict. This
issue is without merit and the defendant is not entitled to any relief.

                                       Conclusion

        Based upon the foregoing authorities and reasoning, the judgment of the trial court
is affirmed.



                                             ____________________________________
                                             J. ROSS DYER, JUDGE




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