              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                               AT NASHVILLE
                            APRIL 2000 SESSION

              STATE OF TENNESSEE v. GERALD W. McCULLOUGH

                      Direct Appeal from the Circuit Court for Bedford County
                               No. 14393 William Charles Lee, Judge


                        No. M1999-01525-CCA-R3-CD - Filed August 18, 2000


The defendant, Gerald W. McCullough, was convicted of aggravated sexual battery. The trial court
imposed a twelve-year sentence. In this appeal of right, the defendant contends that the trial court
erred by allowing proof of more than one instance of sexual misconduct and by imposing an
excessive sentence. Because the sentence was not excessive, and because the defendant waived the
issue of the admissibility of uncharged sex crimes, the judgment is affirmed.

                      Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed.

GARY R. WADE, P.J., delivered the opinion of the court, in which JERRY L. SMITH and ROBERT W.
WEDEMEYER, JJ., joined.

John E. Herbison, Nashville, Tennessee (on appeal), and Andrew Jackson Dearing, III, Shelbyville,
Tennessee (at trial), for the appellant, Gerald W. McCullough.

Paul G. Summers, Attorney General & Reporter, Marvin E. Clements, Jr., Assistant Attorney
General, and Michael David Randles, Assistant District Attorney General, for the appellee, State of
Tennessee.

                                                      OPINION

       The defendant was indicted on four separate counts:

                   ONE:              On July 28, 1998, engaging in unlawful sexual contact
                                     with DT,1 less than 13 years of age, in violation of
                                     Tenn. Code Ann. § 39-13-504;

                   TWO:              On August 4, 1998, engaging in unlawful sexual
                                     contact with HT, less than 13 years of age, in
                                     violation of Tenn. Code Ann. § 39-13-504;

       1
           It is the policy of this court not to reveal the name of a minor who has been the victim of a sex crime.
                THREE:          On August 8, 1998, engaging in unlawful sexual
                                contact with JB, less than 13 years of age, in violation
                                of Tenn. Code Ann. § 39-13-504; and

                FOUR:           On August 8, 1998, engaging in unlawful sexual
                                contact with CB, less than 13 years of age, in violation
                                of Tenn. Code Ann. § 39-13-504.

All but Count One were severed prior to trial by agreed order.

        In June of 1998, Roy and Tammy Messick moved into a three bedroom mobile home in the
Viking Trailer Park in Unionville with their four children: son DT, age 7; daughter HT, age 6; and
two other daughters, ages 4 and 3. One month later, Ms. Messick's mother, Eunice York, and her
boyfriend, Gerald McCullough, moved into the mobile home to live with the Messick family. The
three girls slept in one bedroom, Mr. and Mrs. Messick were in a second bedroom, and the defendant
and Ms. York slept in the third. DT slept in the livingroom.

        On July 28, Ms. Messick's friend, Sheila Geary, who lived across the street, walked towards
the Messick residence to visit. At 10:00 P.M., as she approached the door, Ms. Geary looked
through two large windows in the living room and observed the defendant, seated inside,
masturbating in the presence of DT. The blinds were open and a lamp lit the inside of the living
room. Ms. Geary testified that the defendant "had his pants undone, and he had his thing and he was
masturbating . . . [a]nd [DT] was standing in between his legs, right in front of him." Ms. Geary
knocked on the door and DT unlocked it, at which point Ms. Geary entered the residence and
exclaimed to the defendant, "I saw what you have done." Ms. Geary then walked to the Messicks'
bedroom and asked Ms. Messick to step outside, where she told Ms. Messick what she had seen.
As she did so, the defendant paced back and forth in the living room. Approximately ten days later,
Ms. Geary complained to Al Cacatory, the landlord of the trailer park, who contacted the sheriff's
department. Ms. Messick was aware that Ms. Geary had arranged for the landlord to make the call.
At the time of the offense, the defendant and Ms. York had rented a residence of their own but did
not yet have electricity and other services. By the time Ms. Geary mentioned the incident to the
landlord, the defendant and Ms. York had moved into their own dwelling.

        There was proof at trial that after the defendant's arrest, he sent letters to Ms. York addressed
to the Messick residence. In one letter, the defendant urged Ms. Messick and DT "to leave town"
so as to miss a scheduled court hearing. The letter was signed "GX."

         DT, a second grader, testified that the defendant "did a bad thing to me." He recalled that
the defendant touched his penis more than once and that he had turned his head when the defendant
tried to persuade him to look at his penis. He testified that on one occasion, the defendant "tried to
make [him] suck it." DT stated that he refused. He recalled that on another occasion, while he was
in bed, the defendant got into the bed and placed his penis against his bottom; DT stated that he had
clothes on at the time and that he refused the defendant's request to remove his pants.


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         DT explained that the defendant got in bed with him one afternoon after school and that Ms.
York was living at an apartment at that time. DT recalled that the Messicks had gone to the races
that day. He stated that the day before, while the Messicks had gone to the store, the defendant had
tried to show him his penis. Later in his testimony, DT conceded that the event may have occurred
on a Saturday, when school was not in session. DT claimed that the defendant "tried to make [him]
pull down [his] pants," but that he refused and the defendant did not touch him.

        DT also remembered the night that Ms. Geary came into the residence. He testified that just
before Ms. Geary entered, the defendant took his penis out of his pants. DT denied, however, that
there was any sexual contact. DT recalled that the defendant instructed him "not to tell anybody .
. . because he didn't want to get in trouble."

        On redirect examination, DT testified that he would not allow the defendant to touch his
penis and that he refused to cooperate on the day the defendant asked him to suck his penis. He
stated that the defendant rubbed his penis on his bottom only once.

        On August 10, 1998, Detective David Adams of the Bedford County Sheriff's Department,
a member of the child protective investigative team, was notified of the incident witnessed by Ms.
Geary. He and other officers interviewed the Messicks, DT, and Ms. Geary, and, on the next day,
interviewed the defendant. Chief Deputy Dale Elliott assisted in the interview, which was conducted
at the sheriff's department. In the initial interview, the defendant denied any type of inappropriate
contact with DT. Afterward, the defendant was placed under arrest. Before being taken to jail, the
defendant asked to make a second statement. Detective Adams testified that the defendant
acknowledged that he had asked DT to touch his penis. When asked whether he had rubbed his
penis on the body of DT, the defendant stated that he could not remember because he was "using
marijuana at the time frame." Both statements were tape recorded.

       At the conclusion of the evidence, the state elected to rely only upon the instance when DT
claimed to have been touched on the bottom by the defendant while in the bedroom.

         Initially, the defendant argues that the state improperly elicited evidence of at least five
incidents of attempted sexual contact between the defendant and DT. He points out that DT testified
that he touched DT's penis "more than once" and that he wanted DT to touch his penis and also "tried
to make [DT] suck it." The defendant cites testimony by DT that he had tried (but failed) to take
DT's pants off and that he had already touched the bottom of DT, who was wearing pants at the time.
Because the defendant did not object at trial to the unindicted instances of misconduct, he relies upon
the plain error doctrine in this appeal.2

      The state submits that the issue has been waived, not only because there was no
contemporaneous objection to the testimony, but also because the ground was not included in the
motion for new trial. See Tenn. R. App. P. 3(e); Tenn. R. App. P. 36(a); State v. Killibrew, 760


       2
           Appellate counsel did not represe nt the defend ant at trial.

                                                            -3-
S.W.2d 228, 235 (Tenn. Crim. App. 1988).

        Tennessee Rule of Evidence 404(a) provides that "[e]vidence of a person's character or trait
of character is not admissible for the purpose of proving action in conformity with the character or
trait" absent exceptional circumstances. Rule 404(b) provides as follows:

               Evidence of other crimes, wrongs, or acts is not admissible to prove
               the character of a person in order to show action in conformity with
               the character trait. It may, however, be admissible for other purposes.
               The conditions which must be satisfied before allowing such evidence
               are:

                (1)    The court upon request must hold a hearing outside the jury's
                presence;

                (2)     The court must determine that a material issue exists other
                than conduct conforming with a character trait and must upon request
                state on the record the material issue, the ruling, and the reasons for
                admitting the evidence; and

                (3)    The court must exclude the evidence if its probative value is
                outweighed by the danger of unfair prejudice.

        Generally, this rule is one of exclusion but there are, as stated, exceptions. See State v.
Parton, 694 S.W.2d 299 (Tenn. 1985); Bunch v. State, 605 S.W.2d 227 (Tenn. 1980); Carroll v.
State, 370 S.W.2d 523 (Tenn. 1963); see also State v. Rickman, 876 S.W.2d 824 (Tenn. 1994)
(favorably citing both Parton and Bunch). Most authorities suggest trial courts take a "restrictive
approach [to] 404(b) . . . because 'other act' evidence carries a significant potential for unfairly
influencing a jury." See Neil P. Cohen, et al., Tennessee Law of Evidence § 404.7, at 170-71 (3d
ed. 1995). That best explains the traditional posture of the courts that any testimony of prior bad acts
by a defendant, when used as substantive evidence of guilt of the crime on trial, is not usually
admissible. Parton, 694 S.W.2d at 302-03. The general exceptions to the rule are when the evidence
is offered to prove the motive, identity, or intent of the defendant, the absence of mistake,
opportunity, or a common scheme or plan. Bunch, 605 S.W.2d at 229; see Laird v. State, 565
S.W.2d 38 (Tenn. Crim. App. 1978). One authority suggests that the "completion of the story" may
also be a relevant basis for admission under Rule 404(b). Cohen, et al., § 404.6, at 169. Recently,
in State v. Gilleland, ____ S.W.3d ____ (Tenn. 2000), our supreme court observed that "if the
contextual evidence is relevant to an issue other than criminal propensity and its probative value is
not outweighed by the danger of unfair prejudice, then the evidence may be properly admitted."

         Our supreme court has spoken on the dangers of admitting into evidence prior sex-related
bad acts in the context of a case involving a child victim. The following passage, perhaps, best
illustrates the reason for the rule:


                                                  -4-
                        The general rule excluding evidence of other crimes [or acts]
               is based on the recognition that such evidence easily results in a jury
               improperly convicting a defendant for his or her bad character or
               apparent propensity or disposition to commit a crime regardless of the
               strength of the evidence concerning the offense on trial. Such a
               potential particularity exists when the conduct or acts are similar to
               the crimes on trial.
                                                 ***
               [I]t is clear that the victim's testimony about other uncharged sex
               crimes was error. . . . Moreover, the prejudice resulting from [the
               testimony regarding uncharged sex crimes] outweighs its probative
               value. . . .

Rickman, 876 S.W.2d at 828 and 830 (emphasis added) (citations omitted).

       In Getz v. State, 538 A.2d 726 (Del. l988), a case cited by our supreme court in Rickman,
the Delaware Supreme Court made further comment upon the rationale behind the rule:

               "[W]e are no more inclined to endorse [the assumption that a
               defendant's propensity for satisfying sexual needs is so unique that it
               is relevant to his guilt] than we are to consider previous crimes of
               theft as demonstrating a larcenous disposition and thus admissible to
               show proof of intent to commit theft on a given occasion."

Rickman, 876 S.W.2d at 829 (quoting Getz, 538 A.2d at 734) (alteration in original).

       Traditionally, courts have not permitted the prosecution to establish through acts of prior
misconduct any generalized propensity on the part of a defendant to commit crimes. See e.g., State
v. Teague, 645 S.W.2d 392 (Tenn. 1983). A jury cannot be allowed to convict a defendant for bad
character or any particular "disposition to commit a crime regardless of the strength of the evidence
concerning the offense on trial." Rickman, 876 S.W.2d at 828 (citing Anderson v. State, 56 S.W.2d
731 (1933)).

        In Rickman, the supreme court did acknowledge a special exception allowing for the
admission of evidence of other sex crimes when the indictment is not time-specific and when the
evidence relates to sex crimes that occurred within the period charged in the indictment. 876 S.W.2d
at 829. In these instances, the state must elect the particular incident for which a conviction is
sought. Id. The rationale for the exception is that "evidence of a prior sex crime that is necessarily
included within the charge of the indictment is also necessarily relevant to the issues being tried and,
therefore, is admissible." Id. In Rickman, our supreme court concluded that the victim's testimony
about other uncharged sex crimes was erroneous and that prejudice resulting from the testimony
outweighed its probative value. Id. at 830.



                                                  -5-
         The defendant makes a persuasive argument on appeal that the admission of the unindicted
instances of sexual misconduct was erroneous. He relies on the plain error doctrine for two reasons.
First, there was no contemporaneous objection and second, the issue was not included in the motion
for new trial. Generally, the failure to raise an issue in a motion for new trial results in a waiver.
Rule 3(e) of the Tennessee Rules of Appellate Procedure provides that for appeals "in all cases tried
by a jury, no issue presented for review shall be predicated upon error in the admission or exclusion
of evidence, jury instructions granted or refused, . . . or other ground upon which a new trial is
sought, unless the same was specifically stated in a motion for a new trial; otherwise such issues will
be treated as waived."

         Whether properly assigned or not, however, this court may consider plain error upon the
record. State v. Ogle, 666 S.W.2d 58 (Tenn. 1984). Before an error may be so recognized pursuant
to Rule 52(b) of the Tennessee Rules of Criminal Procedure, the error must be "plain" and it must
affect a "substantial right" of the accused. The word "plain" is synonymous with "clear" or
equivalently "obvious." United States v. Olano, 507 U.S. 725, 732 (1993). Plain error is not merely
error that is conspicuous. Plain error is especially egregious error that strikes at the "fairness,
integrity, or public reputation of judicial proceedings." See State v. Wooden, 658 S.W.2d 553, 559
(Tenn. Crim. App. 1983). In State v. Adkisson, 899 S.W.2d 626, 639 (Tenn. Crim. App. 1994), this
court defined "substantial right" as a right of "fundamental proportions in the indictment process, a
right to the proof of every element of the offense and . . . constitutional in nature." In that case, this
court established five factors to be applied in determining whether an error is plain:

                (a)     The 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

                (e)     consideration of the error is "necessary to do substantial
                        justice."

Id. at 641.

         The Adkisson test was recently formally adopted by our supreme court, which characterized
the test as a "clear and meaningful standard" and emphasized that all five factors must be established
before a trial error will be considered as plain error. State v. Smith, ____ S.W.3d ____ (Tenn. 2000),
No. 12495, 2000 WL 872830 (June 30, 2000).

        In this case, the testimony of DT, only seven years old, was not as strong as the state might


                                                   -6-
have preferred. For example, the victim believed that school was in session at the time of the offense
and that the incident occurred after a day at school. Other testimony by him contradicted that. Ms.
Geary and the other witnesses at the trial established that the incident had to have occurred during
the summer when school was not in session. DT denied that he cooperated with the defendant and
then recalled only the one instance which had occurred in his bed. That is, DT did not testify that
the defendant touched his genitals or that he touched the defendant's genitals. While he alluded to
"more than one" incident of sexual aggression on the part of the defendant, his testimony, in the light
most favorable to the state, was that only the one instance of actual sexual contact had occurred. DT
stated that he was in bed, fully clothed, when the defendant pressed his penis against the clothing
covering his bottom. Except for the specific incident that occurred in the bed of DT, there was little
upon which to base a felony conviction.

        By the application of the factors established in Adkisson, it is our view that the error here did
not rise to the level of plain or obvious error. Initially, while our supreme court has been consistent
in the general exclusion of uncharged sex crime testimony, the issue was not argued at all during the
trial. Thus the record is not sufficiently developed for a complete analysis. Appellate counsel did
not try the case, so he is at a disadvantage, as are we, in evaluating the issue in hindsight. For
example, it is possible that trial counsel for the defendant chose not to object or to otherwise waive
the issue for tactical reasons. Had the state been less specific in the indictment as to dates and times
of the contact, the other references in the testimony to sexual impropriety on the part of the defendant
might have been admissible under the special exception recognized in Rickman. The state did not
have the opportunity to offer legitimate reasons for one of the several exceptions to Rule 404(b).
The reference to other possible sex crimes is not nearly so significant in this case as in State v.
McCary, 922 S.W.2d 511 (Tenn. 1996), or State v. Woodcock, 922 S.W.2d 904 (Tenn. Crim. App.
1995). Moreover, DT testified that he refused to cooperate with the defendant's advances and had
only marginal contact through clothing on the one occasion. Finally, the trial court did require an
election on the part of the state to assure a unanimous verdict on the specific incident in DT's
bedroom. On balance, the factors weigh against a determination of plain error. In consequence, the
issue must be treated as having been waived for failure to present the ground in the motion for new
trial.

        Next, the defendant argues that the 12-year sentence is excessive. Despite a prior criminal
history, the defendant qualified as a Range I offender, subject to a sentence of 8 to 12 years. The
defendant argues that the trial court erred by refusing to apply as a mitigating factor Tenn. Code Ann.
§ 40-35-113(1):
                The defendant's criminal conduct neither caused nor threatened
                serious bodily injury.

         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 with a presumption that the determinations made by
the trial court are correct. Tenn. Code Ann. § 40-35-401(d). 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); see State v.


                                                  -7-
Jones, 883 S.W.2d 597 (Tenn. 1994). "If the trial court applies inappropriate factors or otherwise
fails to follow the 1989 Sentencing Act, the presumption of correctness falls." State v. Shelton, 854
S.W.2d 116, 123 (Tenn. Crim. App. 1992). The Sentencing Commission Comments provide that
the burden is on the defendant to show the impropriety of the sentence.

        Our review requires an analysis of (1) the evidence, if any, received at the trial and sentencing
hearing; (2) the presentence report; (3) the principles of sentencing and the arguments of counsel
relative to sentencing alternatives; (4) the nature and characteristics of the offense; (5) any mitigating
or enhancing factors; (6) any statements made by the defendant in his own behalf; and (7) the
defendant's potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -210;
State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987). The record in this case demonstrates
that the trial court made adequate findings of fact.

        If the trial court's findings of fact are adequately supported by the record, this court may not
modify the sentence even if it would have preferred a different result. State v. Fletcher, 805 S.W.2d
785 (Tenn. Crim. App. 1991). The presumption of correctness is, however, "conditioned upon the
affirmative showing in the record that the trial court considered sentencing principles and relevant
facts and circumstances." Ashby, 823 S.W.2d at 169. The trial court must place on the record the
reasons for the sentence. State v. Jones, 883 S.W.2d 597 (Tenn. 1994).

        The trial court found the following enhancement factors:

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

                (8)     That the defendant has a previous history of unwillingness to
                        comply with the conditions of his sentence involving release
                        in the community;

                (13)(A)That the felony was committed while the defendant was on
                       bail if the release is from a prior felony conviction; and

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

Tenn. Code Ann. § 40-35-114.

        While many of his prior convictions were several years old, the defendant did have ten prior
felony offenses according to the pre-sentence report. He also admitted to using marijuana. The trial
court placed significant weight upon the defendant's prior criminal record in determining that the
maximum sentence was appropriate. Because the defendant had twice violated the conditions of his
parole, the trial court had a basis for the application of factor (8). Moreover, he was on bail on two
felony charges at the time that he was convicted of this offense. Thus, (13)(A) applied. Finally, as


                                                   -8-
the boyfriend of DT's grandmother, he had been allowed to share the Messick residence. The
defendant was entrusted with some level of supervision over the seven-year-old victim, as the only
adult left in the trailer with the child on this occasion.

        In our view, the trial court properly applied each and every enhancement factor. While it may
be true that the defendant's conduct did not cause serious bodily injury, that factor would have little
weight in light of the considerable weight given each of the enhancement factors. In our view, the
trial court did not err in imposing the maximum sentence.



                                                       ____________________________________
                                                       GARY R. WADE, PRESIDING JUDGE




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