         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                               Assigned on Briefs June 5, 2002

     STATE OF TENNESSEE v. JOHNNY OWENS and SARAH OWENS

                     Appeal from the Circuit Court for Haywood County
                          No. 4436A & B      Terry Lafferty, Judge



                   No. W2001-01397-CCA-R3-CD - Filed November 8, 2002


The defendants, Johnny Owens and Sarah Owens, who are husband and wife, were convicted of
aggravated child abuse by a Haywood County Circuit Court jury. Johnny Owens was convicted on
one count only, and Sarah Owens was convicted on five counts. Because Johnny Owens’ motion
for a new trial raised only issues of the sufficiency of the evidence, we review only that issue in his
appeal. Sarah Owens raises evidentiary issues and claims that the trial court erred in failing to
instruct the jury on the “missing witness” rule, in conditioning the defendants’ release from custody
during trial upon Ms. Owens’ withdrawal of her motion to sequester the jury, and in imposing an
excessive sentence. We affirm all convictions and sentences; however, we order Sarah Owens’
sentences to be served concurrently.

         Tenn. R. App. P. 3; Judgment of the Circuit Court is Affirmed as Modified.

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which JOSEPH M. TIPTON and
JERRY L. SMITH, JJ., joined.

Ramsdale O’DeNeal, Jr. (for Johnny Owens), Jackson, Tennessee; and Marcus M. Reaves (for Sarah
Owens), Jackson, Tennessee, for the Appellants.

Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney, Assistant Attorney General;
Garry G. Brown, District Attorney General; and Clayburn L. Peeples, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                             OPINION

              On December 6, 1999, a kindergarten teacher at the Anderson Early Childhood Center
(AECC) in Brownsville noticed that one of her students, K.J., showed signs of having a sore back.
The teacher testified at trial that, upon examining K.J., she discovered a number of “long, thin
marks” on K.J.’s back, some of which had bled and had resulted in scabs. The assistant principal
at AECC testified that some of the marks were recent.
                The next day, December 7, 1999, after receiving a call from AECC, Renae Pullen,
a representative of the Tennessee Department of Children’s Services, went to AECC to investigate
the suspected child abuse. She observed the “linear injuries” on K.J.’s back and called the
Browsville Police Department. Ms. Pullen learned that K.J. was a foster child who, along with five
other foster children, resided in the defendants’ home. There were two brothers, L.B.-1 and L.B.-2,
and three siblings of K.J., J.J., M.J., and S.J. S.J. had been adopted by the defendants.

                 After a police officer requested that the defendant Sarah Owens go to AECC, Ms.
Owens arrived at about 11:00 a.m. on December 7. Ms. Pullen testified that Ms. Owens said she was
unaware of the injuries to K.J. and had no explanation for the injuries. Ms. Owens told Ms. Pullen
that the children were never in the care of anyone other than herself, the defendant Johnny Owens,
or Ms. Owens’ mother. Ms. Pullen testified that Ms. Owens was very calm. “There was really no
expression,” and Ms. Owens did not react when Ms. Pullen informed her that Ms. Pullen was going
to take K.J. to the hospital.

                After Ms. Pullen transported K.J. to the hospital and while she waited there, she was
contacted by the middle-school resource officer, who indicated that L.B.-2 had been injured. Ms.
Pullen instructed the officer to bring L.B.-2 to the hospital and to have L.B.-1, who was a high school
student, checked for injuries. Ms. Pullen testified that both L.B.-1 and L.B.-2 had cerebral palsy.

                When L.B.-2 arrived at the hospital, Ms. Pullen discovered linear marks on his back
similar to those found on K.J., except that L.B.-2's marks seemed more severe. They were bleeding
and oozing, resulting in his shirt sticking to his back. Ms. Pullen characterized the marks as “fresh”
injuries.

                Later L.B.-2's older brother, L.B.-1, was brought to the hospital. L.B.-1 had injuries
similar to those of his brother.

                Ultimately, K.J.’s siblings, S.J. and J.J., were brought to the hospital. According to
Ms. Pullen, S.J. had “little round marks” on her body and large patches of bruising on her side, lower
back, and around her neck. J.J. had some scars and a fresh burn in his groin area. Through Ms.
Pullen, the state introduced photographs of the children’s various injuries and scars.

               Brownsville Police Officer Joel Parker was dispatched on December 7, 1999 to the
defendants’ business, Owens Clothing Store, to instruct Sarah Owens to go to AECC because of a
“situation” with K.J. Ms. Owens did not noticeably react to the request and drove her own vehicle
to AECC. Officer Parker followed. At AECC, Ms. Owens “never showed any expression” or “sign
of emotion.” Officer Parker discerned no “surprise or concern” in her demeanor.

               Brownsville Police Investigator Shawn Williams was present when Sarah Owens
came to AECC. He described her demeanor as “unconcerned” and testified that Ms. Owens said that
“the children were always either with her or her husband or at the school or sometimes with her
mother.” Ms. Owens stated in Officer Williams’ presence that she was unaware of any injuries to


                                                 -2-
the children. Officer Williams agreed that Mr. Owens treated the child abuse allegations as a “big
joke.”

               As a result of the injuries to the children discovered on December 7, Assistant Police
Chief Johnny Blackburn arrested defendant Johnny Owens when he came to AECC that afternoon.
Accompanying Mr. Owens was M.J., a toddler, who was in a child restraint seat in Mr. Owens’ car.
Chief Blackburn testified that Mr. Owens denied knowing about any injuries to the children and that
Mr. Owens showed little concern about the children. Mr. Owens laughed about the allegations and
appeared not to take them seriously. Brownsville Police Officer Mike Smothers, who was present
when Mr. Owens was arrested, agreed that Mr. Owens was relaxed and unconcerned. Officer
Smothers testified that Mr. Owens showed no remorse and treated the arrest “like a big joke.” The
officers noticed no sign of physical abuse on M.J.

                After the defendants were arrested and while they were in custody, the police obtained
a warrant to search the defendants’ residence. Inside the home, officers found a stick wrapped in
duct tape, an electric cord wrapped in duct tape, a metal rod affixed to a wooden handle with a metal
nut on the rod’s end, a broken broom handle, and a rope with a handle on each end and a pulley in
the middle. The metal rod and the rope with the pulley were found in the defendants’ bedroom.

               Officer Williams testified that some of the wounds on the children were linear, with
the marks ending in an indentation. These wounds were especially discernible on L.B.-1. Officer
Williams opined that these wounds were consistent with having been inflicted by the metal rod. On
cross-examination, however, he admitted that the indentations at the end of linear marks were not
discernible on the photographs of L.B.-1.

                 S.J. testified at trial (February 28 through March 2, 2001) that she was six years old.1
 She testified that she once lived with the defendants, along with K.J., J.J., M.J., L.B.-1, and L.B.-2.
She testified that, on the day she went from school to the hospital, she had “[s]ome cigarette burns
and some bruises.” When asked how she received her injuries, she testified that “Johnny” and
“Sarah” had whipped her with a wooden paddle and a cord wrapped in duct tape. She identified the
tape-wrapped cord that had been retrieved from the defendants’ home and that had been introduced
into evidence as the appliance that the defendants had used to whip her. She testified that she was
in the same room when K.J. was whipped and was in the house when “the boys” were whipped. She
heard them crying and screaming. S.J. testified that she was whipped ten or twelve times and that
the defendants would strip her and the other victims of their clothes before whipping them. She
testified that both the defendants whipped her.

              Doctor Joseph B. Pierce testified by video deposition that he was director of the
hospital emergency room to which the children were brought in December 1999. Doctor Pierce
examined each of the children. He testified that L.B.-1 had cerebral palsy and, although this child's


        1
          However, medical evidence in the case established her birthday as March 3, 1993, which would make her
almost eight years old.

                                                     -3-
verbal communication was limited, he gave a history of “mom beating him.” He exhibited multiple
scars in the scalp that were old and well healed, as well as old scars and new contusions on his chest.
Some of the marks were three to five days old. L.B.-1's back had scars “too numerous to count.”
Some were old, but some appeared to be less than a week old. On L.B.-1's legs, Dr. Pierce found
“scars on top of scars.”

                Doctor Pierce testified that L.B.-2 , born January 26, 1986, also had cerebral palsy.
L.B -2 stated that his “mom” had beaten him. Doctor Pierce found three areas of swelling on L.B.-
2's head and lacerations “too numerous to count” on his back. His buttocks had multiple wounds,
and his lower left leg had two linear marks, one old and one “very new.”

                Doctor Pierce’s examination of K.J., age seven, revealed old and new wounds on her
chest and lacerations on her back that were “too numerous to count,” with both old and new scar
formation. Most of the lacerations appeared to be 72 hours old. She also had old and new scarring
on the backs of her legs. K.J. told Dr. Pierce that both the defendants had beaten her on the previous
Sunday, three or four days before the examination.

               Doctor Pierce testified that S.J., who was six years old, had old scars “too numerous
to count” on her back. Some appeared to be seven to ten days old. Doctor Pierce found round scars
on her abdomen and back that appeared to be consistent with cigarette burns. She had scars on her
legs. He found bruising that appeared to be seven to ten days old.

               Doctor Pierce testified that J.J. was four years old, born July 3, 1995. J.J.’s
examination revealed that he had numerous old scars on his upper chest and back. Some of the scars
on his back appeared to be ten to fourteen days old. His buttocks and the backs of his thighs bore
numerous scars and two welts that appeared to be seven to ten days old. Doctor Pierce found a
wound lateral to the testes that appeared to be a cigarette burn. The wound was “weeping and very
fresh.”

              Doctor Pierce examined M.J., who was two years old and was the youngest of the
children. He found no indication that M.J. had been beaten or injured.

               Doctor Pierce testified that he saw injuries on all the children except M.J. which were
consistent with injuries that could result from use of the tape-wrapped electric cord and the metal
rod. He opined that the rope with the pulley was an

               instrument that is used to basically take a child’s hands and wrap
               them in such a way that they can[] be . . . restrained and then they are
               usually pulled up either on an instrument such as . . . a door so that
               they can be extended in a complete fashion so that they can be better
               beaten and also unable to fight back.




                                                 -4-
                When asked whether the injuries that he found on five of the children would have
caused “extreme pain,” Dr. Pierce responded, “Absolutely.” Doctor Pierce further opined that the
five children who bore scars and bruises had been systematically beaten over a period of several
months. He testified that, despite having seen “several hundred” cases of child abuse, the victims’
injuries represented the worst child abuse he had ever seen.

               On cross-examination, Dr. Pierce testified that none of the victims had any broken
bones, and he noticed no marks on any of the victims’ hands.

                 In her defense, Sarah Owens called as witnesses some of her relatives and other long-
standing acquaintances. These witnesses testified generally that they visited regularly in the Owens
residence, knew the victims, and observed that both the victims and Ms. Owens behaved in a normal
fashion. The victims appeared to be happy and did not appear to be afraid of either of the
defendants. Some of the witnesses opined that Ms. Owens loved the children. Ms. Owens’ brother
testified that the victims minded Ms. Owens well and that she “had them under control.” Ms.
Owens’ sister-in-law opined that the victims were “crazy about” Ms. Owens. Ms. Owens’ sister,
who had spent the weekends in the Owens house, testified that the children played well together and
reacted to Ms. Owens “like a mother.”

                Sarah Owens testified that, in 1993, she and Johnny Owens completed foster parent
preparation classes sanctioned by the Department of Children’s Services. In the classes, they
learned how to discipline foster children by using “time out.” She testified, “We don’t whip. That
was the no. 1 priority that we went through in the training. The Department told us not to whip any
of the children. We weren’t to whip them no matter what they did.”

              Ms. Owens testified that she and her husband received L.B.-1 and L.B.-2 into their
house on June 5, 1995. The boys already had scars, and L.B.-2 had a print left by a clothes iron.
The Owens received S.J. in August 1996 and ultimately adopted her. They received J.J., M.J., and
K.J. in May 1998. J.J. and K.J. had marks on them when they came to the Owens.

               Ms. Owens testified that L.B.-1 would bite himself when he became frustrated and
would bite and hit his brother, L.B.-2. Referring to photographs that had been placed in evidence,
Ms. Owens testified that all of the marks on L.B.-1 were there when he came to the Owens, except
for marks on his hip which he had received when he accidentally fell into the air conditioning vent
after Ms. Owens had removed the cover to service the system. She testified that L.B.-1 had also
been scratched while playing in a pile of leaves and sticks around Thanksgiving 1999.

                 Ms. Owens denied knowing anything about the broom handle or the tape-wrapped
cord. She denied using either instrument to discipline the victims and denied seeing anyone else use
them. She identified the rope-pulley device as an exercise-therapy device that was medically
prescribed for her use following a car accident that had temporarily and partially paralyzed her. She
testified that she used the device twice a day to keep her “joint[s] active.” She denied that she ever
used the device to restrain the victims.


                                                 -5-
              Ms. Owens explained that J.J. was bruised as a result of his penchant for jumping
from the school bus when he was let out at home in the afternoons. After jumping from the bus, he
would roll down the hill. She denied causing any of the bruises on J.J. or seeing anyone else do so.

               Ms. Owens testified that she does not smoke and has never smoked. She opined that
the round marks on S.J. that were identified by Dr. Pierce as cigarette burns were actually scars left
from S.J.’s previous ringworm infection. Ms. Owens testified that she had S.J. treated for the
infection. Ms. Owens also took S.J. to the doctor twice a year to monitor her heart murmur.

                Ms. Owens testified that both S.J. and K.J. had marks on them when they came to the
Owens house. Ms. Owens admitted that K.J. suffered a burn on her back on Thanksgiving Day 1999
when Ms. Owens, who was attending to K.J.’s hair, accidentally dropped a hot curling iron down
K.J.’s back, inside her robe.

                On cross-examination, Ms. Owens again denied that she had ever seen the tape-
wrapped cord and opined that the police had planted it in her house during the execution of the
search warrant, which was carried out while the Owens were in jail. Ms. Owens testified that the
school principal was lying when she said that she asked Ms. Owens how K.J. had received her
injuries and that S.J. was lying when she said that Ms. Owens stripped her and whipped her.

                Defendant Johnny Owens called as a witness Dr. Gerald White, an experienced
physician who had treated the victims in the past. He treated S.J. for bronchitis and noted a heart
murmur that was probably congenital. In all, he saw S.J. 34 or 35 times and observed no injuries or
any other indicia of child abuse. On May 28, 1999, Dr. White treated L.B.-2 for bronchitis and saw
no scars or other indicia of child abuse. L.B.-2 had regular and normal visits to Dr. White’s office.
L.B.-1 was seen in Dr. White’s office over a span of four years and was last seen in April 1999.
Doctor White saw no bruises or other indicia of abuse. Doctor White also saw J.J., the last time on
September 20, 1999. His notes reflected no evidence of abuse. On July 1, 1999, Dr. White
performed a school physical examination on K.J. He found no marks or other indicia of child abuse.

                Johnny Owens testified that he was 70 years of age and had been married to Sarah
Owens for eight years. He and Sarah Owens underwent twelve weeks of training to become certified
foster parents. He testified that S.J., K.J., M.J., and J.J. were “blood kin” to him. He testified that
he typically went to work at 3:30 p.m., before the victims came home from school, and that they
would be asleep when he returned from work. He testified, “I didn’t have anything to do with the
children.” He testified he had never seen his wife whip the children.

                He identified the metal rod as the handle of a broken camp skillet. The Owens hung
it behind their bedroom door to keep it away from the children. The rope-pulley device was only
used by Ms. Owens to perform her exercises. Mr. Owens testified that, after his wife had been
summoned to AECC on December 7, he went home. He did not dispose of any items before the
police searched the home.


                                                 -6-
               Mr. Owens testified, “I never hit none of those kids in that house.” He denied
making any marks on any of the victims and denied burning any of them with cigarettes. Although
he claimed that he and his wife did not allow smoking inside the house, he admitted that he smokes.
He denied seeing anyone abuse the victims.

                On cross-examination, the state asked Mr. Owens “about how there’ve been eight
referrals of you and your wife since the 20th of May of 1996 for abusing children?” Mr. Owens
replied that the referrals related to other foster children, not the victims in the instant case. Mr.
Owens confirmed that, in response to the referrals, the Owens’ foster care privileges were suspended
until they attended parenting classes. He added, “We went to see the nut doctor, too.” Mr. Owens
characterized the requirements of classes and counseling as the Department of Children’s Services’
overreaction to a Department representative erroneously believing that a foster child in the Owens’
care had “switch” marks. Mr. Owens attributed the overreaction to an unrelated, publicized incident
involving a “dumpster baby.”

               After hearing the evidence, the jury convicted Sarah Owens of five separate counts
of aggravated child abuse, one count for each of the victims, L.B.-1, L.B.-2, J.J., S.J., and K.J. The
jury acquitted her on the count alleging aggravated child abuse of M.J. The trial court imposed
eight-year, Class B felony, Department of Correction sentences on all counts, except for the count
involving J.J., on which it imposed a twenty-year, Class A sentence in the Department of
Correction.2 Two eight-year sentences run consecutively to the twenty-year sentence, and the other
sentences run concurrently to the twenty-year sentence, yielding an effective incarcerative sentence
of 36 years.

              The jury convicted Johnny Owens only of the aggravated child abuse of S.J. The trial
court imposed an incarcerative sentence of eight years in the Department of Correction.

                                    I. Sufficiency of the Evidence.

                 Both defendants challenge the sufficiency of the convicting evidence and the failure
of the trial judge to grant a judgment of acquittal. We group these two appellate claims together
because we apply the same standard in reviewing both the denial of a judgment of acquittal and the
sufficiency of the convicting evidence. See State v. Price, 46 S.W.3d 785, 818 (Tenn. Crim. App.
2000), perm. app. denied (Tenn. 2001).

                A criminal conviction may be set aside only when the appellate court finds that the
“evidence is insufficient to support the finding by the trier of fact beyond a reasonable doubt.” Tenn.
R. App. P. 13(e). “A jury verdict, approved by the trial court, accredits the testimony of the
witnesses for the state and resolves all conflicts in favor of the state’s theory.” Price, 46 S.W.3d at


         2
           The judgment for count four in which the twenty-year sentence was imposed specifies that the conviction
offense is a Class A felony and refers to the victim being under six years of age. See Tenn. Code Ann. § 39-15-402(b)
(1997).

                                                        -7-
818; see State v. Hatchett, 560 S.W.2d 627, 630 (Tenn. 1978). Following the conviction, the
appellate court reviews the evidence in the light most favorable to the state and affords the state the
benefit of all inferences that may be reasonably drawn from the evidence. State v. Cabbage, 571
S.W.2d 832, 836 (Tenn. 1978). This means that issues of the credibility of witnesses and the weight
to be ascribed to their testimony are matters entrusted to the trier of fact and are not issues for
appellate analysis. Price, 46 S.W.3d at 785.

                 It is well established that a jury verdict, 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.
Hatchett, 560 S.W.2d at 630; State v. Townsend, 525 S.W.2d 842, 843 (Tenn. 1975). 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. Cabbage, 571 S.W.2d at 836.

               Moreover, a verdict against the defendant removes the presumption of innocence and
raises a presumption of guilt on appeal, State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973); Anglin
v. State, 553 S.W.2d 616, 620 (Tenn. Crim. App. 1977), which the defendant has the burden of
overcoming, State v. Brown, 551 S.W.2d 329, 331 (Tenn. 1977).

               Most significantly, when the sufficiency of the evidence is challenged, the relevant
question for an appellate court is whether, after reviewing 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. Tenn. R. App. P. 13; Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781,
2782 (1979); see also State v. Williams, 657 S.W.2d 405 (Tenn. 1983). This rule applies to findings
based on both direct and circumstantial evidence. State v. Thomas, 755 S.W.2d 838, 842 (Tenn.
Crim. App. 1988). Circumstantial evidence alone may be sufficient to convict one of a crime. State
v. Boling, 840 S.W.2d 944, 947 (Tenn. Crim. App. 1992).

                 As charged in the indictments in the present case, aggravated child abuse is
committed by one who, “other than by accidental means, treats a child under eighteen (18) years of
age in such a manner as to inflict injury,” and “the act of abuse . . . results in serious bodily injury
to the child.” Tenn. Code Ann. §§ 39-15-401(a) (1997) (proscription and definition of child abuse),
-402(a) (1997) (proscription and definition of aggravated child abuse). Aggravated child abuse
pursuant to Code section 39-15-401(a) is a Class B felony, “provided, that, if the abused . . . child
is six (6) years of age or less, the penalty is a Class A felony.” Id. § 39-15-402(b) (1997). Our Code
defines “serious bodily injury” as “bodily injury which involves: (A) A substantial risk of death; (B)
Protracted unconsciousness; (C) Extreme physical pain; (D) Protracted or obvious disfigurement;
or (E) Protracted loss or substantial impairment of a function of a bodily member, organ or mental
faculty.” Id. § 39-11-106(a)(34) (1997).

                Essentially, the defendants support their arguments that the evidence is insufficient
by pointing to their own testimony that they did not whip or otherwise abuse the victims, to expert
testimony that conflicted with the state’s expert, and to circumstances which, they maintain, support
inferences of an exculpative nature. For purposes of our review, we analyze the sufficiency of the


                                                  -8-
evidence supporting the Class B felony convictions of both defendants separately from Sarah Owens’
Class A felony conviction on count four.

                The evidence presented to the jury in this case illustrates that L.B.-1, L.B.-2, S.J., and
K.J. received serious bodily injuries in the form of extremely painful physical injuries. These
injuries were the result of beatings administered by one or both of the defendants, as found by the
jury. With respect to these victims, the elements of aggravated child abuse were established by the
evidence.

                 We note that the jury, not the appellate court, has the prerogative of choosing those
witnesses to believe and of determining the weight to be assigned to their testimony. The jury, not
the appellate court, has the prerogative of drawing inferences from the evidence. As an appellate
court, we merely look at the evidence in the light most favorable to the state, indulging the state the
benefit of all reasonable inferences, to determine whether any reasonable jury could have found the
defendants guilty beyond a reasonable doubt. After making this examination as to the Class B
felonies, we conclude that the evidence is sufficient with respect to both defendants to support the
respective convictions.

                We now review Sarah Owens’ Class A felony conviction on count four, which alleged
her aggravated child abuse of J.J. The record contains no direct evidence that Sarah Owens actively
abused J.J. S.J. testified that both defendants whipped her and that she witnessed them whipping
K.J. Also, K.J. gave Dr. Pierce a medical history that included her statement that, on the Sunday
before the medical examination, both defendants had beaten her. Additionally, both L.B.-1 and
L.B.-2 gave Doctor Pierce medical histories that reflected that their “mom” had beaten them.3 J.J.
provided the doctor with no medical history about the origin of his injuries. The proof, however,
showed that, although S.J. had not seen the “boys” being whipped, she had been in the house when
she heard them crying and screaming. She explained that the “boys” included J.J., and she heard
Sarah Owens order the boys to remove their clothes prior to the whipping. Doctor Pierce testified
that the marks on all five injured children were similar and were consistent with the instrumentalities
seized from the Owens house. Although the evidence on count four is weaker than that on the other
counts, it does establish beyond a reasonable doubt that Sarah Owens committed the aggravated
abuse of J.J.

                Thus, the convictions on all counts and for both defendants are supported by
sufficient evidence.

                                      II. Remaining Issues.

                   Both parties raise additional issues, whether




        3
            Evidence in the record shows that at least S.J. and L.B.-1 referred to Sarah Owens as “momma.”

                                                         -9-
                                A. The trial court erred in allowing the state to
                   examine Sarah Owens about her income;

                                 B. The trial court erred in allowing the state to
                   question Johnny Owens about prior allegations of the defendants’
                   abuse of children who were not the subject of the instant
                   prosecutions;

                                 C. The trial court erred in failing to instruct the jury
                   on the “missing witness” rule; and

                                 D. The defendants were denied a fair trial because of
                   cumulative errors.

In addition to these issues, Sarah Owens complains that

                                 E. The trial court erred in causing Sarah Owens to
                   abandon her request to sequester the jury; and

                                      F. Her sentence is excessive.

                 We will consider in turn these issues raised by defendant Sarah Owens, but we are
constrained to treat as waived the appellate issues raised by defendant Johnny Owens. His motion
for new trial raised only evidence sufficiency issues and did not contain any of the other issues listed
above. It is well settled that, following a jury trial, evidentiary issues and other “ground[s] upon
which a new trial is sought” are waived unless they are “specifically stated in a motion for a new
trial.” Tenn. R. App. P. 3(e). Because Johnny Owens has failed to include any of the issues except
sufficiency of the evidence in his motion for new trial, we will not review them in his appeal.4 We
now address the additional issues raised by defendant Sarah Owens.

                             A. Admission of Evidence of Sarah Owens’ Income.

               The defendant Sarah Owens claims that the trial court erred in allowing the state to
cross-examine her about her income derived from providing foster care services. The defendant’s
bases for excluding the evidence are Tennessee Rules of Evidence 401 and 402. See Tenn. R. Evid.


         4
           The record co ntains an order overruling the mo tion for new trial. The ord er is styled “State of Tennessee v.
Sarah Owens.” The reco rd contains no corresponding written order overruling per se Johnny Owens’ motion for new
trial; however, the transcript of the hearing on his motion for new trial clearly reflects that the trial court overruled his
motion. In this situation, we will deem the single written order overruling the motio n for new trial as embracing the
motions for new trial filed by both defendants, thus affording this court jurisdiction to hear John ny Ow ens’ appeal. See
Tenn. R. App. P. 4(b). Ho wever, in the case of multiple defendants tried jointly, the better practice is for the trial court
to enter a separate order for each de fendant, or alternatively, one order captioned such that it clearly enc omp asses all
defenda nts and add resses all issues raised by all defenda nts.

                                                           -10-
401 (defining relevant evidence as “evidence having any tendency to make the existence of any
[material] fact more probable or less probable than it would be without the evidence”); Tenn. R.
Evid. 402 (declaring that “all relevant evidence is admissible,” except as otherwise mandated by the
state or federal constitution or other controlling law, and that irrelevant evidence is not admissible).
Essentially, she argues that the evidence is not relevant, and she additionally posits, without citation
to authority, that the evidence was unfairly prejudicial. See Tenn. R. Evid. 403 (relevant evidence
“may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury”).

                During the state’s cross-examination of Ms. Owens, the following exchange occurred:

                Q       Mrs. Owens, you didn’t just take care of these foster children
                        out of the goodness of your heart, did you, ma’am?

                A       Yes. I did.

                Q       Oh, you did. You didn’t receive anything from the State of
                        Tennessee?

                [Ms. Owens’ counsel]: I’m objecting, Your Honor. . . .
                      Irrelevant.

                The Court: And what would be relevant?

                [The prosecutor]: Your Honor, in Counsel’s opening statement,
                       Counsel said that her client had to use home remedies because
                       they didn’t have much money. And the fact of the matter is,
                       they had lots of money and –

                [Ms. Owens’ counsel]: Opening statement is not evidence.

                The Court: I know that. I overrule the objection.

                Q       Let’s just get right to it, ma’am. How much money a month
                        did you get from the State of Tennessee while you had these
                        five children in your home?

                A       I ain’t even added it up.

                Q       Oh, how about something like $3,300.00 a month?

                A       I really couldn’t –



                                                    -11-
                       ....

               Q       Oh, you really couldn’t.

               A       I really couldn’t say.

                       ....

               Q       Fact of the matter is, ma’am, you . . . lived pretty high off
                       these kids, didn’t you?

               A       No.

               Q       No. Tell me ma’am. Just how many inches wide is that big
                       screen TV in your house?

               A       My television is 60 inches.

                The decision to admit or exclude evidence lies within the sound discretion of the trial
court. State v. Edison, 9 S.W.3d 75, 77 (Tenn. 1999); State v. Jackson, 52 S.W.3d 661, 669 (Tenn.
Crim. App. 2001); State v. Carroll, 36 S.W.3d 854, 867 (Tenn. Crim. App. 1999), perm. app.
denied (Tenn. 2000). Ms. Owens’ counsel stated in her opening remarks to the jury that, although
Ms. Owens regularly took the children to the doctor, “those of you who have children [know] you
use home remedies. You can’t afford to go to the doctor every minute [with] any kind of injury you
can take care of at home.” Regardless whether the defendant “opened the door” by making these
remarks, we hold that the trial court was within its discretion in allowing the cross-examination
because it was relevant to a material issue. Ms. Owens had presented proof that she loved the
victims. The state’s line of questioning strikes at Ms. Owens’ altruistic motives in accepting the
children into her home. Ultimately, whether her concern for the victims’ welfare was genuine would
make it more probable or less probable that Ms. Owens physically abused the victims. Thus, we
reject Ms. Owens’ claim that the line of cross-examination was irrelevant. See Tenn. R. Evid. 401,
402.

               Finally, we conclude that the record supports a finding that the probative value of the
evidence is not “substantially outweighed by the danger of unfair prejudice.” See Tenn. R. Evid.
403.

                                  B. Admission of Evidence of Allegations
                        that the Defendants Abused Children Other Than the Victims.

               Over the defendants’ objections, the state cross-examined Johnny Owens about eight
previous allegations of child abuse that had been received by the Department of Children’s Services.
During the state’s cross-examination of Johnny Owens, the following exchange occurred:


                                                  -12-
Q      How come it is if [you never whipped the children], sir, that
       there had been eight referrals to the Department of Children’s
       Services –

[Ms. Owens’ counsel]: I’m going to object, Your Honor.

[The prosecutor]: And could we be graced with the reason
      for this objection, Your Honor?

[Court excuses the jury.]

[The prosecutor]: My question is, could he explain why there have
       been eight referrals of himself and Sarah for inappropriate
       discipline on the five children that were seen at the hospital
       and have –

The Court: Prior to December 7, 1999?

[The prosecutor]: Yes, sir. . . . [T]hese people were ordered as a
       result of this to attend parenting classes . . . in March of 1998
       for doing these things to these children.

        ....

[Ms. Owens’ counsel]: He doesn’t know why anybody referred
      anything. There’s no saying that these were all founded
      allegations. These are alleged past acts where DCS may have
      gotten a call in from somebody. [T]here is no probative value
      on this case.

[Mr. Owens’ counsel]: I concur.

The Court: All right. Now, everybody in this courtroom’s heard
      about the loving attention they gave to these children. They
      would never whip them. . . . [N]obody’s ever touched those
      children. . . . [T]he state has evidence . . . to impeach hi[s]
      credibility; that [the state] has legitimate complaints by the
      Department of [Children’s] Services where he or his wife may
      have mistreated these children before December 7, 1999?

[The prosecutor]: Yes, Your Honor.



                                 -13-
The Court: Okay, you have evidence to that extent?

[The prosecutor]: In my hand, Your Honor.

       ....

The Court: – evidence that they may have been referred on past
      disciplinary problems of the children, the jury is entitled to
      hear it. So, I’ll overrule the objection. . . . You’re welcome
      to see it.

[Counsel for both defendants review the state’s documents, which are
not made exhibits. The jury returns, and the cross-examination of
Mr. Owens continues.]

Q      Do you want to explain about how there’ve been eight
       referrals of you and your wife since the 20th day of May of
       1996 for abusing children?

A      I can’t explain, but it wasn’t from abusing those children.


       ....

Q      Who is B[] Jackson?

A      That was some kids we had before them.

Q      That’s one of the ones you abused back then, wasn’t it?

A      Oh, no. No. We –

Q      Oh, no. It wasn’t him. How about J[] Jackson? Was he one
       of the ones you abused?

A      No. I never –

[Mr. Owens’ counsel]: I object to . . . the line of questioning
      as being argumentative.

The Court: [A]sk specific questions and give Mr. Owens an
      opportunity to answer them . . . .



                                 -14-
               Q       When B[] Jackson . . . had switch marks on his back, how did
                       you manage to explain that one away?

               A       He didn’t have ’em on there by me.

               Q       Okay, so if the reports of the CPS [sic] say that he had
                       switch marks on his back, that’s another lie in this
                       massive conspiracy against you.

               A       Evidently it was . . . .

               (Emphasis added.)

         Initially, we note that the state’s purpose in proposing the cross-examination was to impeach
Mr. Owens’ claims that he had not whipped the victims. It is obvious from the transcript excerpt
that, during the cross-examination of Mr. Owens, the state jumped track and began to inquire about
the abuse of children other than the victims in the present case. Although Ms. Owens objected to
the use of the eight referrals that were described by the prosecutor as showing abuse of the victims
in the present case, she did not object to the shift in questioning that elicited answers from Mr.
Owens about the abuse of the Jackson children. However, in her motion for new trial and in her
appellate brief, Ms. Owens complains only that the trial court erred in allowing this latter line of
questioning. She relies in her appellate brief upon Tennessee Rule of Evidence 608, which provides
in part:

                               (a) Opinion and Reputation Evidence of Character.
               The credibility of a witness may be attacked or supported by evidence
               in the form of opinion or reputation, but subject to these limitations:
               (1) the evidence may refer only to character for truthfulness or
               untruthfulness, and (2) the evidence of truthful character is admissible
               only after the character of the witness for truthfulness has been
               attacked.

                               (b) Specific Instances of Conduct. Specific instances
               of conduct of a witness for the purpose of attacking or supporting the
               witness’s credibility, other than convictions of crime as provided in
               Rule 609, may not be proved by extrinsic evidence. They may,
               however, if probative of truthfulness or untruthfulness and under the
               following conditions, be inquired into on cross-examination of the
               witness concerning the witness’s character for truthfulness or
               untruthfulness or concerning the character for truthfulness or
               untruthfulness of another witness as to which the character witness
               being cross-examined has testified. The conditions which must be



                                                  -15-
               satisfied before allowing inquiry on cross-examination about such
               conduct probative solely of truthfulness or untruthfulness are:

                       (1) The court upon request must hold a hearing outside the
               jury’s presence and must determine that the alleged conduct has
               probative value and that a reasonable factual basis exists for the
               inquiry;

                       ....

                        (3) If the witness to be impeached is the accused in a criminal
               prosecution, the State must give the accused reasonable written notice
               of the impeaching conduct before trial, and the court upon request
               must determine that the conduct’s probative value on credibility
               outweighs its unfair prejudicial effect on the substantive issues. The
               court may rule on the admissibility of such proof prior to the trial but
               in any event shall rule prior to the testimony of the accused. If the
               court makes a final determination that such proof is admissible for
               impeachment purposes, the accused need not actually testify at the
               trial to later challenge the propriety of the determination.

Tenn. R. Evid. 608 (emphasis added).

               Ms. Owens complains that the trial court failed to comply with the requirements of
Rule 608(b)(3). We conclude, however, that the defendant’s reliance upon Rule of Evidence 608
is misplaced. To be sure, the state initially offered the evidence of the child abuse referrals as a
means of impeaching Johnny Owens, but the evidence relating to possible acts of child abuse is not,
as such, “probative solely of truthfulness or untruthfulness,” as required by Rule 608(b) as a means
of using specific instances of conduct to impeach a witness. See Tenn. R. Evid. 608(b). In other
words, the specific instances of the defendant-witness’s conduct are not suggestive of credibility as
would be the case had a witness, for instance, previously lied on an employment application or
misrepresented a loss on an insurance proof-of-loss form. Thus, we conclude that the procedural
requirements of Rule 608 were not implicated.

               Rather, the true nature of the state’s use of the child abuse referrals was to impeach
Johnny Owens through fact contradiction, a device that is recognized by our courts. See, e.g., State
v. McKinney, 74 S.W.3d 291, 317 (Tenn. 2002) (appendix). Through fact contradiction, a cross-
examining party inquires about facts that conflict with the witness’s testimony to show indirectly that
the witness is untruthful. Neil P. Cohen et al., Tennessee Law of Evidence § 6.07 [4][b] (4th ed.
2000). In the present case, the state proposed to use the evidence of the child abuse referrals as a
means of contradicting the witness’s assertions that he and his wife loved the victims and did not
whip them. Obviously, based upon his comments, the trial judge accepted the state’s fact-
contradiction rationale for impeaching the witness.


                                                 -16-
                That said, Ms. Owens on appeal does not challenge the propriety of allowing the state
to cross-examine Mr. Owens about the prior allegations of abuse of the victims in the present case.
Rather, she challenges only the state’s cross-examination of Johnny Owens about the defendants’
alleged abuse of B[] and J[] Jackson. Because the premise of the impeachment was described by
the state as contradicting Mr. Owens’ claim that he loved the victims and that he did not whip them,
it can hardly be said that allegations that he had whipped either or both of the Jackson children
contradicts the witness’s claims of affinity for the victims in the present case. The upshot is that the
allegations concerning the Jackson children served no impeachment purpose at all.

                Thus, impeachment is not an apt basis for using the evidence of the abuse of the
Jackson children. Although we agree with Ms. Owens’ position that the evidence was not admissible
as impeachment evidence, it behooves Ms. Owens as the opponent of the evidence and the appellant
before this court to illustrate why the evidence is otherwise inadmissible. See, e.g., Kim v. Boucher,
55 S.W.3d 551, 555 (Tenn. Ct. App. 2001) (trial court has wide discretion in admitting or rejecting
evidence and “will be reversed on appeal only when there is a showing of an abuse of discretion”)
(emphasis added).

                 In this vein, we recognize that the questions concerning the Jackson children elicit
evidence of prior bad acts that tend to show the actor’s propensity on a specific occasion. We know
that our Rule of Evidence 404(b) generally prohibits the use of such propensity evidence. See Tenn.
R. Evid. 404(b); see also State v. McCary, 922 S.W.2d 511, 514 (Tenn. 1996); State v. Rickman, 876
S.W.2d 824, 828 (Tenn. 1994). The problem with employing a Rule 404(b) analysis at this juncture
is that neither defendant objected to the “Jackson” line of cross-examination, and Ms. Owens’ earlier
objection was not on the grounds of Rule 404(b). See, e.g., Tenn. R. Evid. 103(a) (error may not be
predicated upon an evidentiary ruling without a timely objection that specifically states the ground
of objection); State v. Korsakov, 34 S.W.3d 534, 545 (Tenn. Crim. App. 2000) (defendant may not
base an objection to the admission of evidence on one ground at trial and “then base his argument
on another ground, such as the violation of Rule 404(b), Tenn. R. Evid., on appeal”). Thus, the
possible error in allowing the line of cross-examination will not be noticed by this court unless it
qualifies as plain error. See Tenn. R. Crim. P. 52(b).

                We consider several factors to determine when to notice plain error:

                (a) [T]he record must clearly establish what occurred in the trial
                court;

                (b) a clear and unequivocal rule of law must have been breached;

                (c) a substantial right of the accused must have been adversely
                affected;

                (d) the accused did not waive the issue for tactical reasons; and


                                                 -17-
                (e) consideration of the error is “necessary to do substantial justice.”

State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (approving factors set forth in State v. Adkisson,
899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994)). Our supreme court emphasizes that “all five
factors must be established by the record before [the supreme court] will recognize the existence of
plain error.” Id. at 283. Moreover, “complete consideration of all the factors is not necessary when
it is clear from the record that at least one of the factors cannot be established.” Id.

                We conclude that we are not presented with a case in which we are compelled to
notice plain error. Because Ms. Owens did not base an objection on Rule 404(b) and did not request
a hearing on that basis, see Tenn. R. Evid. 404(b)(1), the trial court did not “determine [whether] a
material issue exist[ed] other than conduct conforming with a character trait” that would have
supported the use of the evidence, and if so, it did not determine whether the probative value of the
evidence was outweighed by the “danger of unfair prejudice.” See Tenn. R. Evid. 404(b)(2), (3).
Moreover, not only did the state not have an opportunity to argue or show that the evidence was
admissible for “other purposes” than propensity, see Tenn. R. Evid. 404(b), it was not called upon
to address the issue in its appellate brief. Furthermore, we cannot tell whether, as a condition to
admissibility, the state could have shown that “a reasonable factual basis” existed for making the
inquiry about the abuse of the Jackson children. See Tenn. Rule Evid. 405(a)(2). The state’s
documents, which may have been the basis for the inquiry, were not proffered for record purposes,
despite being reviewed by counsel for the defendants. Thus, we are hampered by the record’s failure
to clearly establish what occurred in the trial court and by the inability to discern that a clear and
unequivocal rule of law was necessarily breached. See Smith, 24 S.W.3d at 282.

            In conclusion, we find no plain error with respect to the state’s cross-examination of
Johnny Owens.

                In her brief under the heading that the trial court committed error in admitting
evidence of allegations of the abuse of the Jackson children, Ms. Owens argued that the prosecutor
was guilty of misconduct in asking Mr. Owens about the Jackson children. We have not considered
this issue; it was not raised in Ms. Owens’ motion for new trial. See Tenn. R. App. P. 3(e)
(providing for the waiver of certain issues not presented in a motion for new trial).

                       C. The Trial Court’s Failure to Instruct the Jury on the
                                     “Missing Witness” Rule.

               The defendant Sarah Owens is aggrieved that the trial court, in response to her
motion, declined to instruct the jury that the failure of L.B.-1, L.B.-2, K.J., and J.J. to testify at trial
warranted invocation of the “missing witness” rule.

                Under the missing witness rule, a party is entitled to argue, and have
                the jury instructed, that if the other party has it peculiarly within his
                power to produce a witness whose testimony would naturally be


                                                   -18-
               favorable to him, the failure to call that witness creates an adverse
               inference that the testimony would not favor his contentions.

State v. Middlebrooks, 840 S.W.2d 317, 334 (Tenn. 1992) (citation omitted). The rule does not
apply unless the evidence shows that “the witness had knowledge of material facts, that a
relationship exists between the witness and the party that would naturally incline the witness to favor
the party and that the missing witness was available to the process of the Court for trial.” Id.
(quoting Delk v. State, 590 S.W.2d 435, 449 (Tenn. 1979)). The missing witness rule is predicated
upon the idea that the missing witness, “if produced, would have made an intelligent statement about
what was observed.” Dickey v. McCord, 63 S.W.3d 714, 722 (Tenn. Ct. App. 2001) (quoting State
v. Francis, 669 S.W.2d 85, 89 (Tenn. 1984)).

                 The requirement of unavailability of the missing witness means not only that the
witness was “not within the subpoena power of the trial court,” State v. Philpott, 882 S.W.2d 394,
407 (Tenn. Crim. App. 1994), but also that the witness “must not have been equally available to both
parties.” State v. Boyd, 867 S.W.2d 330, 337 (Tenn. Crim. App. 1992) (police officer being “under
the control of the prosecution” deemed insufficient to qualify the absent officer as a missing witness
in the absence of evidence (1) that the state attempted to conceal his existence, (2) that defense
counsel sought to interview the officer, and (3) that the officer would have refused to be interviewed
by defense counsel had he been approached).

              Before the missing witness rule may be invoked, not only must the missing witness
have been peculiarly available to the claiming party, but also the witness must have “peculiar
knowledge of material facts.” Boyd, 867 S.W.2d at 337; see also State v. Eldridge, 749 S.W.2d 756,
758 (Tenn. Crim. App. 1988). “‘No [] inference arises where the only object of calling such witness
would be to produce corroborative, cumulative, or possibly unnecessary evidence . . . .’” Dickey,
63 S.W.3d at 721 (quoting Stevens v. Moore, 24 Tenn. App. 61, 139 S.W.2d 710, 717 (1940)).

                The burden to establish the aptness of the missing witness jury instruction lies with
the claimant. See State v. Thompson, 768 S.W.2d 239, 250 (Tenn. 1989). Our courts have stressed
that, when a claimant establishes entitlement to the missing witness jury instruction, the result is not
a presumption that the missing witness would have testified favorably to the claimant; rather, a
permissive inference to that effect is created. Middlebrooks, 840 S.W.2d at 334.

              Ms. Owens moved the court to instruct the jury via Tennessee Pattern Instruction -
Criminal 42.16, which provides:

                When it is within the power of the state or the defendant to produce
                a witness who possesses peculiar knowledge concerning facts
                essential to that party’s contentions and who is available to one side
                at the exclusion of the other, and the party to whom the witness is
                available fails to call such witness, an inference arises that the
                testimony of such witness would have been unfavorable to the side


                                                 -19-
                      that should have called or produced such witness. Whether there was
                      such a witness and whether such an inference has arisen is for you to
                      decide and if so, you are to determine what weight it shall be given.

Committee on Pattern Jury Instruction (Criminal), Tennessee Pattern Jury Instructions - Criminal
42.16 (6th ed. 2001). Although the prosecutor responded to the motion by orally informing the trial
court that the absent victims had been placed in Indiana and that the State of Indiana had refused to
honor the trial court’s subpoenas to have those victims appear at trial, no evidence was introduced
to show the whereabouts of the absent victims or to corroborate the prosecutor’s claim that Indiana
would not honor the trial court’s subpoenas.

                We perceive no error in the trial court’s refusal to give Pattern Instruction 42.16. The
burden rested upon Ms. Owens to establish the threshold requirements for invoking the missing
witness rule. One of the requirements is that the missing witnesses must be available by being
subject to the service of process. Middlebrooks, 840 S.W.2d at 334. Ms. Owens failed to establish
the availability of the absent victims.5 Thus, her claim of entitlement to the missing witness
instruction fails.

                                D. Denial of Fair Trial Through Cumulative Error.

               The defendant Sarah Owens argues that the cumulative effect of trial court errors
deprived her of a fair trial; however, we have identified no error. Therefore, we find no errors which
can be considered cumulative.

                        E. Trial Court’s Error in Causing Sarah Owens to Abandon Her
                                         Request to Sequester the Jury.

               Prior to trial, Sarah Owens moved the trial court to sequester the trial jury. The trial
judge responded by informing Ms. Owens’ counsel of his practice governing a motion to sequester
made by a defendant who is free upon bail during trial.6 Essentially, the court told counsel that it
would grant the motion to sequester the jury only if the defendants are confined during the pendency
of the trial. The trial judge said, “Over my years of sitting on the bench jurors don’t like to be

          5
           Tennessee Code Annotated sec tions 40-17 -201 through -212 constitute T ennessee’s enactment of the Uniform
Law to Secure the Attendance of Witnesses from Within or Without a State in Criminal Proceedings. As such, the Act
specifies a hearing and fact-finding procedure to be carried out in a responding state when a court exercising criminal
jurisdiction in an initiating state seeks the attendance of a witness who is located in the respo nding state. See Tenn. Code
Ann. §§ 40-17-203, -204, -207 (1997). The evidence of record in the present case does not establish whether the absent
victims were located outside Tennessee, or if so, whether the state proceeded via Code section 40-17-2 07 to initiate
proceedings to effectuate summons via the Uniform Act, whether Indiana or any other respo nding state particip ates in
the Uniform Act, or if so, whether that state’s procedures corresponding to Tennessee Code Annotated section 40-17-203
and -204 were p ursued .

          6
              The trial judge is a Senior Judge who was designated to try the case and who does not regularly sit in Haywood
County.

                                                             -20-
sequestered and watch defendants walk out of the courtroom. It can have a devastating effect on
whether or not an individual gets a fair trial.” Accordingly, the trial court did not per se deny the
motion. Following the trial judge’s explanation of his practice, her counsel objected that the court’s
tactics were unconstitutional. Nonetheless, Ms. Owens withdrew her motion, albeit under protest.
 She now raises the issue on appeal.

               Sequestration of a trial jury in a criminal case has been recognized as a right of a
criminal defendant. See State v. Furlough, 797 S.W.2d 631, 644 (Tenn. Crim. App. 1990)
(“Historically, both the state and federal constitutions required sequestration of juries.”); see
also Tenn. Const. art I, §§ 6, 8, 9; Long v. State, 132 Tenn. 649, 179 S.W. 315 (1915). “[T]he
purpose of the rule – to preserve a defendant’s right to a fair trial and impartial jury by protecting
jurors from outside influences so that the verdict will be based only upon evidence developed at trial
– is perhaps more important in the modern age, considering the pervasiveness of media coverage and
publicity.” State v. Bondurant, 4 S.W.3d 662, 671 (Tenn. 1999).

                  This court has held that, when the defendant did not waive his right to a sequestered
jury and the trial court nevertheless refused to sequester the jury, an “affirmative burden” rested upon
the state to show that “no prejudice actually occurred in order to permit harmless error analysis.”
Furlough, 797 S.W.2d. at 645; see also Gonzales v. State, 593 S.W.2d 288, 291 (Tenn. 1980). In
Furlough, the court relied upon a statute which provided for the waiver of the right:

                In all criminal prosecutions except those in which a death sentence
                may be rendered, the judge of the criminal court may, in his
                discretion, with the consent of the defendant, and with the consent of
                the district attorney general, permit the jurors to separate at times
                when they are not engaged upon the actual trial or deliberation of the
                case.

Tenn. Code Ann. § 40-18-116 (1990) (amended Acts 1995, ch. 43, § 1). In 1995, however, the
legislature modified this statute to read as follows:

                In all criminal prosecutions, except those in which a death sentence
                may be rendered, jurors shall only be sequestered on the judge’s
                motion or on the motion of the counsel for the defendant or the
                district attorney general, which shall prohibit the jurors from
                separating at times when they are not engaged upon the actual trial or
                deliberation of the case. The party making the motion to sequester
                shall be unknown to the jury.

Id. § 40-18-116 (1997) (emphasis added). Although the new statute does not per se alter a
defendant’s right to have the jury sequestered, it clearly rearranges the burden of putting forward an
objection. See Kenneth MacArthur Johnson v. State, No. E2001-00068-CCA-R3-PC, slip op. at 15-
16 (Tenn. Crim. App., Knoxville, Dec. 18, 2001) (1995 statute “reflects a right to a sequestered


                                                 -21-
jury,” but right may be “waived by the defendant who fails to move for sequestration”), perm. app.
denied (Tenn. 2002). In actuality, our court has ruled that, even under the previous statute, a
defendant waives the right to sequestration when he or she fails to raise the issue “at trial when any
prejudicial effect of the error could have been prevented.” State v. Tony G. Smith, No. 01C01-9603-
CR-00202, slip op. at 9 (Tenn. Crim. App., Nashville, May 16, 1997); see also Jones v. State, 915
S.W.2d 1, 2 (Tenn. Crim. App. 1995).

                With these principles in mind, we turn to the issue at hand. Clearly, Ms. Owens
moved the trial court to sequester the jury. After the trial judge informed her of his “practice,” Ms.
Owens, through her counsel, abandoned the motion to sequester, and the trial court did not deny the
motion.7 Thus, in the absence of a motion that would trigger Code section 40-18-116, the
sequestration issue was waived. See State v. Milton Lee Cooper, No. 03C01-9706-CR-00202, slip
op. at 7-8 (Tenn. Crim. App., Knoxville, Sept. 9, 1998) (commenting that defendant who initially
consented to no sequestration had burden to show prejudice), perm. app. denied (Tenn. 1999).

                Ms. Owens now posits that she was intimidated into abandoning her motion to
sequester the jury by the trial court’s threat to deprive her of one constitutional right – that of bail
– unless she surrendered another constitutional right – the right to be tried by a sequestered jury.
Essentially, she argues that she should not be required to pay the penalty of waiver.

                Indeed, our constitution ensures the right to bail to all criminal defendants, except
those in capital cases “where the proof is evident, or the presumption great.” Tenn. Const. art. I, §
15; see also Tenn. Code Ann. § 40-11-102 (1997). The constitutional guarantee of bail is not lost
until the defendant is convicted. State ex rel. Brown v. Newell, 216 Tenn. 284, 290, 391 S.W.2d
667, 670 (1965); see Tenn. R. Crim. P. 32(d) (providing that trial courts review bail in felony cases
“after the verdict of guilty has been returned”).

               In our view, however, Ms. Owens was afforded a remedy that allowed her to pursue
and protect both constitutional interests. Our law provides that “[b]efore or after conviction . . . the
defendant may obtain review of an order entered by a trial court from which an appeal lies to the
Supreme Court or the Court of Criminal Appeals . . . denying, setting or altering conditions of
defendant’s release.” Tenn. R. App. 8(a); see also Tenn. Code Ann. § 40-11-144(a) (1997). The
review “may be had at any time before an appeal of [the] conviction by filing a motion for review”
in the appropriate appellate court. Tenn. R. App. P. 8(a). Rule 8's purpose is to ensure “the
expeditious review of release orders.” Id., Advisory Comm’n Comments. Not only is Rule 8
designed to expedite review of release orders, but our supreme court has said that it also is the “only
effective remedy” for addressing unsatisfactory release orders, and an “appeal of [the bail] issue [after
conviction was] of no practical effect or benefit to the defendant.” State v. Melson, 638 S.W.2d 342,
358 (Tenn. 1982) (emphasis in original).




       7
           Ms. Owens ad mits in her brief that she withd rew the motio n to seq uester.

                                                           -22-
               We note that Ms. Owens initially presented her motion to the court, and the trial judge
first explained his “practice,” a week before the commencement of trial. She had an ample
opportunity not only to exercise her rights pursuant to Rule 8, but also to do so before any
confinement orders would have been effective.

                Thus, Ms. Owens could have secured her right to a sequestered jury by prosecuting
her motion. If indeed she could have demonstrated a right to pre-verdict release upon a Rule 8
review, despite winning a sequestered jury, she could have also secured the right to pre-verdict
release by prosecuting her motion and pursuing a Rule 8 review of any confinement order. By
withdrawing the motion to sequester and foreclosing the trial court’s ruling on the motion, Ms.
Owens forfeited the opportunity to secure sequestration of the jury and to obtain an order denying
or altering the conditions of her pre-verdict release, which she could (and should) have appealed
pursuant to Rule 8. As it is, we can neither review a denial of jury sequestration, which never
occurred, nor can we effectively review the denial or modification of conditions of pre-verdict
release, which also never occurred. See State v. Rogers, 703 S.W.2d 166, 169 (Tenn. Crim. App.
1985) (appellate court will not “pass on [issues] when there is no justiciable controversy presented”).

               Therefore, under the circumstances, we are unpersuaded that Ms. Owens should be
excused from her waiver of the sequestration issue. We hold that her failure to pursue the
sequestration motion and a Rule 8 review, if such had been necessary, forecloses our review at this
juncture.

                                       F. Excessive Sentence.

               In her final issue, Ms. Owens complains that the sentences she received were too
lengthy.

                When there is a challenge to the length, range, or manner of service of a sentence, it
is the duty of this court to conduct a de novo review of the record with a presumption that the
determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d) (1997). This
presumption is “conditioned upon the affirmative showing in the record that the trial court
considered the sentencing principles and all relevant facts and circumstances.” State v. Ashby, 823
S.W.2d 166, 169 (Tenn. 1991). “The burden of showing that the sentence is improper is upon the
appellant.” Id. In the event the record fails to demonstrate the required consideration by the trial
court, review of the sentence is purely de novo. Id. If appellate review reflects 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, “even if we would have preferred a different result.”
State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

               In making its sentencing determination, the trial court, at the conclusion of the
sentencing hearing, determines the range of sentence and then determines the specific sentence and
the propriety of sentencing alternatives by considering (1) the evidence, if any, received at the trial
and the sentencing hearing; (2) the presentence report; (3) the principles of sentencing and arguments


                                                 -23-
as to sentencing alternatives; (4) the nature and characteristics of the criminal conduct involved; (5)
evidence and information offered by the parties on the enhancement and mitigating factors; (6) any
statements the defendant wishes to make in the defendant’s behalf about sentencing; and (7) the
potential for rehabilitation or treatment. Tenn. Code Ann. § 40-35-210(a), (b) (1997); id. § 40-35-
103(5)(1997); State v. Holland, 860 S.W.2d 53, 60 (Tenn. Crim. App. 1993).

               Ms. Owens received a sentence of twenty years for the Class A felony of aggravated
child abuse of J.J. This sentence is at the midpoint of the sentencing range for Range I offenders.
See Tenn. Code Ann. § 40-35-112(a)(1) (1997) (establishing range of fifteen to 25 years for Range
I). She received a sentence of eight years for each of the other four convictions, all Class B felonies.
This is the minimum sentence within the sentencing range for Range I offenders. See id. § 40-35-
112(a)(2) (establishing range of eight to twelve years for Range I offenders). The sentences imposed
were the presumptive sentences in the applicable ranges, when there are no enhancement or
mitigating factors. See id. § 40-35-210(c) (1997).

               Ms. Owens does not argue in her brief that any mitigating factors were applicable.
See Tenn. Code Ann. § 40-35-113 (1997). The trial court applied none and applied no enhancement
factors.8 Therefore, the defendant has demonstrated no basis for modifying the trial court’s
imposition of the presumptive sentences.

              Because Ms. Owens has failed to demonstrate the impropriety of the length of the
sentences and has made no other challenge to her sentences, we decline to shorten her sentences.

                The defendant has not claimed on appeal that the consecutive alignment of the
sentences was erroneous; however, in keeping with our charge to review sentences de novo, we have
looked at the imposition of consecutive sentences. See Tenn. Code Ann. § 40-35-401(d) (1997).
Consecutive service of multiple sentences must be predicated upon the defendant falling within one
of the rubrics set forth in Tennessee Code Annotated section 40-35-115(b). See State v. Scott M.
Craig, No. E2001-01528-CCA-R3-CD, slip op. at 12 (Tenn. Crim. App., Knoxville, Aug. 27, 2002
(trial court’s observation that “if all of this had to run concurrently, then there would be no
punishment for kidnapping” did not supply a statutory basis for consecutive sentencing, leaving the
consecutive sentencing order unsupported in the trial court’s findings). Generally, these rubrics are
that the defendant is a professional criminal, an experienced criminal, a dangerous mentally
abnormal person, a dangerous offender, a sexual abuser of minors, a person who offends while on
probation, or a person convicted of criminal contempt. See § 40-35-115(b)(1)- (7) (1997).

                  In ruling on the alignment of the multiple sentences, the trial judge said:




         8
           It appears that some enhancement factors m ay have been applicable. See, e.g., Tenn. Code Ann. § 40-35-
114(2) (leader in the comm ission of the offense), (4) (particular vulnerability (of cerebral palsy) victims (L.B.-1 and
L.B.-2)), (5) (exceptional cruelty), (15) (abuse of position of public or private trust).

                                                         -24-
                  Now, it developed during the course of the trial that the children
                  whose age[s] run from about maybe fifteen down to a matter of
                  months were severely abused. There was [sic] many, many evidences
                  of scarring of the children as evidenced by the doctor, so, I do think
                  that it would call for some consecutive sentence, so, therefore, it’s my
                  best judgment that these are horrendous offenses; they are shocking,
                  reprehensible. The treatment of these children based under your total
                  care as a foster parent, I think it calls out for consecutive sentences,
                  so, it’s the judgment of the Court that I’m going to run counts Two
                  and Six consecutively to the minimum sentence of twenty years,
                  which calls for a total sentence of thirty six years.

These remarks are devoid of any reference to Code section 40-35-115, and moreover, the remarks
are not readily linked to any of section 40-35-115(b)’s predicates for consecutive sentencing.
Accordingly, we look at the consecutive sentencing order de novo unaccompanied by a presumption
of correctness. See State v. Lane, 3 S.W.3d 456, 460 (Tenn. 1999) (rejecting the presumption of
correctness on the issue of consecutive sentencing); Ashby, 823 S.W.2d at 169.

                Simply put, we find no predicate in Code section 40-35-115(b) which supports
consecutive service of sentences in the present case. Sarah Owens was a 47-year-old woman who
had no prior criminal record. She is categorically excluded from consecutive sentencing through any
of the rubrics of subsection (b)(1) through (b)(7), except that she is ostensibly eligible for
consecutive sentencing as 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.” See
Tenn. Code Ann. § 40-35-115(b)(4) (1997). To utilize a dangerous offender predicate for
consecutive sentencing, however, the trial court must not only find that the elements of that predicate
are present, but it must also find that consecutive sentencing “reasonably relate[s] to the severity of
the offenses” and is necessary to protect society “from further . . . aggravated criminal conduct.”
State v. Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995).

                The dictates of Wilkerson cannot be met in this case. Even if we were able to find
that the defendant’s deplorable conduct involved a lack of regard or hesitation about committing a
crime in which the risk to human life is high, we cannot determine that a sentence extended to thirty-
six years is necessary to protect the public from further offenses by this defendant.9

               Therefore, we modify Sarah Owens’ sentences by imposing them to run concurrently,
an alignment that yields an effective sentence of twenty years.




         9
          By reason of the convictions in this case being of aggravated child abuse, any aggregate sentence in this case
must be actually served at a minimum of 85 percent pursuant to Code section 40-35-501(h). Tenn. Code Ann. § 40-35-
501(h) (Supp. 20 01).

                                                         -25-
                                       III. Conclusion.

               We affirm all convictions for both defendants and affirm Sarah Owens’ sentences,
as modified.




                                                    ___________________________________
                                                    JAMES CURWOOD WITT, JR., JUDGE




                                             -26-
