                                                                                         11/27/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs July 25, 2017

          STATE OF TENNESSEE v. DANIEL STEPHEN COLLINS

                Appeal from the Criminal Court for Hawkins County
                  No. CC-15-CR-77     John F. Dugger, Jr., Judge
                      ___________________________________

                           No. E2016-02580-CCA-R3-CD
                       ___________________________________


The Defendant, Daniel Stephen Collins, was convicted by a Hawkins County jury of the
aggravated sexual battery of his eight-year-old daughter, a Class B felony, and was
sentenced by the trial court to nine years at 100% in the Department of Correction. The
Defendant raises three issues on appeal: (1) whether the evidence was sufficient to
sustain his conviction; (2) whether the trial court erred by not qualifying the victim as a
competent witness and by allowing the prosecutor to lead her testimony; and (3) whether
the presentment was constitutionally defective because it failed to charge the crime for
which he was convicted. Following our review, we affirm the judgment of the trial court.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which ROBERT H.
MONTGOMERY, JR., and J. ROSS DYER, JJ., joined.

John D. Parker, Jr. (on appeal and at trial) and Steven C. Frazier (at trial), Kingsport,
Tennessee, for the appellant, Daniel Stephen Collins.

Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel;
Dan E. Armstrong, District Attorney General; and Ryan Blackwell and Cecil C. Mills,
Jr., Assistant District Attorneys General, for the appellee, State of Tennessee.
                                       OPINION

                                         FACTS

       On December 22, 2014, the victim, the eight-year-old biological daughter of the
Defendant, reported to her mother that the Defendant had pulled her pants down and
“tickled” her “private” earlier that day while the victim’s mother was at work. The next
day, the victim’s mother took the victim to the hospital, where she was examined by a
physician and interviewed by an investigator with the Department of Children’s Services
(“DCS”). The Hawkins County Grand Jury subsequently returned a presentment
charging the Defendant with the aggravated sexual battery of the victim.

       At the Defendant’s June 23, 2016 trial, the victim’s mother testified that she and
the Defendant had been married for ten years and had one child together, the victim,
before their divorce became final in November 2015. On December 22, 2014, she and
the Defendant were still married and lived together with the victim in a home in Church
Hill. The victim, who was in the third grade at that time, was home for Christmas break,
and the Defendant, who worked the 3:00 to 11:00 p.m. shift at Cooper Standard, kept the
victim from the time the victim’s mother left for her 8:30 a.m. to 5:00 p.m. job until he
dropped her off at the home of her maternal grandparents between 2:00 and 2:30 p.m.

       The victim’s mother testified that when she left work that day, she went directly to
her uncle’s funeral, where she met her parents and the victim. Afterwards, she took the
victim home, and they changed into their pajamas and sat down to watch television
together. Not long after they sat down, the victim told her that she needed to tell her
something. When the victim’s mother muted the television and asked the victim what
she needed to tell her, the victim said that “earlier that day that [the Defendant] had
touched her private parts.” The victim then stood up and demonstrated to her mother
how she had been trying to hold her pants up while the Defendant was trying to pull them
down. The victim said that the Defendant finally got her pants down to her mid-thigh,
and she showed her mother exactly where the Defendant had touched her.

       The victim’s mother testified that she thanked the victim for telling her and told
her that she would speak with the Defendant. She then watched a little more television
with the victim, put the victim to bed, and waited for the Defendant to return home. As
soon as he came into the bedroom after arriving home from work, she told him that she
needed to talk to him and said that the victim had told her that he touched her “private
parts.” The Defendant “immediately got defensive and started hollering” that the victim
was a liar. She told him to be quiet because the victim was in bed and after about five
minutes he stopped talking, prepared for bed, and then got into bed. She eventually lay

                                           -2-
down in bed with him, but she did not sleep. After another thirty minutes to an hour, the
Defendant got up and took a shower before returning to bed.

       The victim’s mother testified that the Defendant got up once during the night to
get a drink from the kitchen and that she followed him to make sure he did not go into the
victim’s bedroom. The next morning, she took the victim with her to work. That
evening, she took the victim to the emergency room, where law enforcement and DCS
were notified. She and the victim moved in with her parents that night, and they never
again lived with the Defendant.

      On cross-examination, the victim’s mother agreed that the victim referred to the
Defendant as having “tickled” her “private parts.”

       The ten-year-old victim testified that on the last day that she lived with the
Defendant she was sitting on the couch watching television in her pajamas when the
Defendant sat down beside her, pulled down her pajama pants to her ankles, pulled down
her underwear, and tickled her “private” for about five minutes while her face was buried
in the couch. She denied that she tickled the Defendant or that they were playing
together at the time. After the Defendant stopped, she pulled up her pajama pants and
underwear and got dressed in preparation for going to her grandmother’s house.

       The victim testified that after she had changed into a tee shirt and shorts, she went
to the Defendant’s room to see if he was ready to leave. At that point, the Defendant “did
it again,” pulling down her shorts and underwear and “tickl[ing]” her front “lower
private.” She asked him to stop, and he did after five minutes. The victim said that
during the drive to her grandmother’s house, the Defendant asked her not to tell her
grandmother or her mother what had happened.

       The victim testified that she did not tell her grandmother, but that night while the
Defendant was gone, she told her mother that the Defendant had tickled her “private.”
She also showed her mother what the Defendant had done by “act[ing] it out, but without
pulling [her] pants down or anything.” The next morning, she accompanied her mother
to her mother’s workplace. Before leaving the house, she went into the Defendant’s
bedroom, where the Defendant was lying in bed with his eyes closed, and told him that
she was sorry. She did not know if he was awake during her apology. The victim
explained that she said she was sorry because she “felt guilty.” She testified that she later
went to the hospital, where she related what had happened to a detective and the medical
staff.




                                            -3-
       At the request of the prosecutor, the victim circled on an anatomical drawing the
portion of her body that the Defendant had touched. The drawing, on which the victim
had circled the genital area, was admitted as an exhibit.

        On cross-examination, the victim agreed that everyone occasionally makes
mistakes and it was possible she might have made “a mistake or two along the way” as
she was relating the events to the different individuals with whom she spoke. When
defense counsel suggested that her face had been buried in the pillows because she and
the Defendant had been “wrestling a little bit,” she replied “[k]ind of.” She also agreed
that it was possible things had happened a little differently from the way she related them.
However, on redirect examination, she testified that no one told her what to say and what
she related on direct examination was true.

       Detective Cliff Evans of the Hawkins County Sheriff’s Department testified that
he was dispatched to the hospital on December 23, 2014, in response to the child sexual
assault complaint. After first meeting with Deputy Bryant Boggs, who explained what
the allegations were, he and Investigator Jessica McGuire with DCS met with the
victim’s mother and the physician who examined the victim. Ms. McGuire spoke briefly
with the victim behind closed doors, and Detective Evans also spoke briefly with the
victim but did not ask her any specific questions about the incident.

       Detective Evans testified that he interviewed the Defendant, who was
accompanied by his lawyer, at the sheriff’s department on January 5, 2015. The
Defendant gave a brief written statement in which he said he had never improperly
touched the victim. During the same interview, the Defendant also made the verbal
statement that he and the victim had been wrestling and that he had been tickling her and
“possibly could have accidentally touched her between the legs.”

        On cross-examination, Detective Evans testified that he talked to the victim at the
hospital but did not ask her any questions about the incident. He said he observed from a
separate room the victim’s statement at DCS but did not participate in it. He explained
that the victim might have misinterpreted his questioning about general topics such as her
favorite sport and cartoon as an interrogation. He conceded that the Defendant did not
mention any specific date when he made the comment about the possibility of having
accidentally touched the victim during a wrestling play session. He said, however, that
from the context he assumed the Defendant was discussing the date of the alleged
incident.

       Daniel Bishop, who had worked with the Defendant at Cooper Standard, testified
that the Defendant brought up the charges against him during conversation, telling him

                                           -4-
that the victim had come into the living room without any clothes on and how he
“accidentally went inside her” while they were wrestling.

        Joshua Stubblefield, a former machine operator at Cooper Standard, testified that
the Defendant told him that he was “being investigated for his daughter,” that he did not
“do it,” and that the victim had gotten “on top of him and forced him.”

       Dr. Joseph Ley, the pediatrician who interviewed and examined the victim at the
hospital, estimated that over the course of his professional career he had evaluated at least
one hundred children who complained of sexual abuse. He testified that the victim told
him that the Defendant had touched her “private parts” and that it “was like a tickle.” He
asked if it had been painful, and she said it had not. Dr. Ley explained that when he
interviews children who complain of sexual abuse, he approaches “from several different
angles” in order to see if they provide a consistent story. The victim’s “story stayed
consistent, that she’d been touched in her private areas, that [the Defendant] had pulled
her pants down to touch her and that it felt like a tickle.”

       Dr. Ley testified that the victim’s hymen was not torn but presented an unusual
appearance with “a white color change at the 5 o’clock position and a slight notch at the 7
o’clock position.” Because the genital exam “was not entirely normal,” he ordered tests
for sexually transmitted diseases, which came back negative.

       The Defendant testified as follows. On December 22, 2014, he got up at 9:30
a.m., got dressed, walked to the living room, sat on the couch to put on his work boots,
and told the victim he would be outside if she needed him. He also told the victim that he
loved her but received no response. He worked outside until about 11:30 a.m., came
back inside, returned a phone call from his wife, and at noon sat down on one end of the
couch to watch television with the victim, who was seated at the other end. The victim
did not speak to him, and he and the victim did not interact.

       At about 1:00 p.m., the Defendant’s mother-in-law called and asked him to bring
the victim to her house a little after 2:00 p.m. Shortly after 1:30 p.m., he told the victim
to go change her clothes. He was still sitting on the end of the couch and in the process
of changing his shoes. The victim ignored him, and he had to tell her four or five times
before she finally got up and went into her bedroom. After fifteen minutes, the victim
came out of her bedroom without wearing any clothes, threw her pajamas and panties in
his face, and tried to jump in his lap. He pushed her off him onto the couch. The victim
then “jumped around like a little monkey on the couch and pulled [his] left arm down
onto the couch and wanted to wrestle, but she was laying [sic] on top of [his] arm.” He
told the victim to get up and go change her clothes, and she complied. He remained in

                                            -5-
the living room, and when the victim came back dressed, he took her to her
grandmother’s house and then went to work.

       The Defendant denied that he ever inappropriately touched the victim. He said
that he and the victim sometimes wrestled and tickled each other, but they did not that
day. He denied that he ever discussed the charges against him with his coworkers or said
what they attributed to him. He said he had never been convicted or charged with any
crime and had never even received a speeding ticket. He acknowledged it was possible
he accidentally touched the victim when he pushed her off his arm but said it was not
intentional and was not the result of anything he initiated. Finally, he testified that he
loved his daughter, that they had had a close relationship, and that he was the parent who
had provided most of her care.

       On cross-examination, the Defendant agreed that the victim was “a good girl” but
disagreed that she was honest.

       Five witnesses testified on the Defendant’s behalf that the Defendant had a good
reputation in the community for honesty and was a hard worker: Larry Crawford, who
estimated he had known the Defendant for twelve or thirteen years; the Defendant’s
stepmother, Inez Collins, who said she had known the Defendant since he was fifteen
months old; the Defendant’s step-aunt, Sarina Stewart; the Defendant’s former long-time
co-worker, Larry Dockery; and the Defendant’s father, Hicks Collins. Mr. Crawford, Ms.
Collins, and Mr. Collins additionally each testified that the Defendant appeared to have a
very good relationship with the victim and that they had never seen him engage in any
inappropriate behavior with her.

       Following deliberations, the jury convicted the Defendant of the indicted offense
and fixed the fine at $25,000. The trial court subsequently sentenced the Defendant as a
Range I, standard offender to nine years at 100% in the Department of Correction.
Thereafter, the Defendant filed a timely appeal to this court.

                                       ANALYSIS

                             I. Sufficiency of the Evidence

       The Defendant first challenges the sufficiency of the evidence, arguing that the
evidence was insufficient to sustain the conviction, the jury’s verdict was contrary to the
law and the evidence, and the trial court should have granted his motions for judgment of
acquittal or a new trial based on the insufficiency of the evidence.



                                           -6-
       “The standard by which the trial court determines a motion for judgment of
acquittal at the end of all the proof is, in essence, the same standard which applies on
appeal in determining the sufficiency of the evidence after a conviction.” State v.
Thompson, 88 S.W.3d 611, 614-15 (Tenn. Crim. App. 2000). When the sufficiency of
the convicting evidence is challenged, the relevant question of the reviewing court is
“whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, (1979); see also Tenn. R.
App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or jury
shall be set aside if the evidence is insufficient to support the findings by the trier of fact
of guilt beyond a reasonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-92 (Tenn.
1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992).

       All questions involving the credibility of witnesses, the weight and value to be
given the evidence, and all factual issues are resolved by the trier of fact. See State v.
Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury,
approved by the trial judge, accredits the testimony of the witnesses for the State and
resolves all conflicts in favor of the theory of the State.” State v. Evans, 838 S.W.2d 185,
190-92 (Tenn. 1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992).
Our supreme court stated the rationale for this rule:

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

Bolin v. State, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 370 S.W.2d 523
(1963)).

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

      The Defendant was convicted of aggravated sexual battery, which, for the
purposes of this case, is defined as the “unlawful sexual contact with a victim by the
defendant” when “[t]he victim is less than thirteen (13) years of age.” Tenn. Code Ann. §
39-13-504(a)(4) (2014). “‘Sexual contact’ includes the intentional touching of the
                                             -7-
victim’s, the defendant’s, or any other person’s intimate parts, . . . if that intentional
touching can be reasonably construed as being for the purpose of sexual arousal or
gratification[.]” Id. § 39-13-501(6). “‘Intimate parts’ includes . . . the primary genital
area, groin, inner thigh, buttock or breast of a human being[.]” Id. § 39-13-501(2).

        The Defendant contends that the “testimony of [the victim] was at odds with the
testimonies of Detective Evans, Daniel Bishop, and Joshua Stubblefield.” Specifically,
he asserts that their testimonies “were consistent with each other” and “supported the
defense theory that any touching was accidental[.]” The State responds that the jury was
within its right to accredit the victim’s testimony, which established that the victim was
sitting on the couch watching television when the Defendant pulled down her pants and
underwear, touched her “private” for about five minutes, and then instructed her not to
tell her grandmother or mother what he had done. We agree with the State.

        Viewed in the light most favorable to the State, the proof was sufficient for the
jury to find the Defendant guilty of aggravated sexual battery beyond a reasonable doubt.
The physician who examined the victim at the hospital found her to be consistent in her
account that the Defendant had pulled her pants down and “tickled” her “private.” The
story she provided to the physician was also consistent with the story she told her mother
and with the straightforward account she provided of the incident during her trial
testimony. In contrast, the Defendant provided varying versions of the episode in his
conversations with his co-workers, to Detective Evans during his interview, and during
his trial testimony. By its verdict, the jury obviously accredited the testimony of the
victim over that of the Defendant, as was its right. We, therefore, conclude that the
evidence was more than sufficient to sustain the conviction for aggravated sexual battery.

       Although it was not requested by the Defendant at trial or raised as an issue in his
motion for new trial or on appeal, we note that the State failed to make an election of
offenses, despite the fact that there was evidence of two separate incidents of the
Defendant’s touching of the victim’s genital area -- in the living room when the victim
was in her pajamas and again in his bedroom after the victim had dressed in shorts. The
doctrine of election of offenses requires that when there is evidence at trial that a
defendant has committed multiple offenses against a victim, the State must elect the facts
upon which it is relying to establish each charged offense. State v. Johnson, 53 S.W.3d
628, 630 (Tenn. 2001) (citations omitted). Thus, when the State presents evidence
showing that more than one offense occurred, but the indictment is not specific as to
which offense the defendant is being tried for, it is the responsibility of the trial court to
require the State to elect which offense is being submitted to the jury. State v. Lemacks,
996 S.W.2d 166, 170 (Tenn. 1999); see also State v. Brown, 823 S.W.2d 576, 583 (Tenn.
Crim. App. 1991) (“[I]n cases involving evidence which shows a real potential that a
conviction may occur as a result of different jurors concluding that the defendant
                                            -8-
committed different acts, each of which separately showing the commission of an
offense, the trial court must augment the general unanimity instruction to insure that the
jury understands its duty to agree unanimously to a particular set of facts.”). The
defendant’s right to a unanimous jury verdict on each and every count is “fundamental,
immediately touching the constitutional rights of the accused.” Burlison v. State, 501
S.W.2d 801, 804 (Tenn. 1973).

       Because the Defendant failed to include this issue in his motion for new trial or on
appeal, we review only for plain error. See Tenn. R. App. P. 3(e); State v. Roland R.
Smith, No. M2004-01457-CCA-R3-CD, 2005 WL 1541874, at *7 (Tenn. Crim. App.
June 29, 2005) (“[T]he doctrine of election of offenses touches on a criminal defendant’s
fundamental constitutional rights and is therefore subject to plain error review, whether
or not raised in a motion for new trial.”), perm. app. denied (Tenn. Dec. 5, 2005)

        The doctrine of plain error provides that where necessary to do substantial justice,
an appellate court may take notice of a “plain error” not raised at trial if it affected a
substantial right of the defendant. Tenn. R. App. P. 36(b). In order for us to find plain
error, “(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.’”
State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d
626, 641-42 (Tenn. Crim. App. 1994)). A court’s discretion to notice plain error is to be
“sparingly exercised.”      State v. Bledsoe, 226 S.W.3d 349, 354 (Tenn. 2007).
Consideration of all five factors is unnecessary when it is clear from the record that at
least one of them cannot be satisfied. Id. at 355.

       In our view, given the evidence at trial, the State should have been required to
make a proper election of offenses and the trial court should have given a jury instruction
on election of offenses. However, we find that no plain error occurred in light of the
prosecutor’s closing argument, which concentrated on the offense that occurred in the
living room. This court has repeatedly held that a trial court’s error in not instructing the
jury on an election of offenses may be harmless “where the prosecutor provides during
closing argument an effective substitute for the missing instruction.” State v. Adrian
Keith Washington, No. M2008-01870-CCA-R3-CD, 2010 WL 653008, at *6 (Tenn.
Crim. App. Feb. 24, 2010) (internal quotations and citations omitted), perm. app. denied
(Tenn. Aug. 26, 2010).

        During both closing and rebuttal arguments, the prosecutor directed the jury’s
attention to the incident that occurred in the living room, reminding the jury in detail
about the victim’s testimony about the Defendant’s having pulled down her pajama pants
                                             -9-
and underwear and having touched her “private.” The prosecutor’s only reference to the
second incident was a brief comment, made after describing the first incident in detail,
that the victim’s nightmare ended but “a few minutes later the same nightmare played out
in the bedroom where he again took down her pants, where he again took down her
panties and where he again touched her private area.” During rebuttal argument, the
prosecutor did not bring up the second incident but instead reminded the jury of the
victim’s testimony about the first incident in which the Defendant pulled down her
pajama pants and underwear. We, therefore, conclude that, in light of the State’s closing
argument, the lack of a formal election of offenses or jury instruction on election of
offenses does not rise to the level of plain error.

                                 II. Victim’s Testimony

        Intermingled with his argument on the sufficiency of the evidence, the Defendant
contends that the trial court erred by not qualifying the child victim as a competent
witness and by allowing the prosecutor to lead her testimony during direct examination.
The State notes that the Defendant did not raise any objection at trial and argues that this
issue is therefore waived. We, again, agree with the State.

       As the State points out, the Defendant raised no objections to the victim’s
testimony at trial and, thus, has waived this issue for appellate review. See Tenn. R. App.
P. 36(a) (“Nothing in this rule shall be construed as requiring relief be granted to a party
responsible for an error or who failed to take whatever action was reasonably available to
prevent or nullify the harmful effect of an error.”); Tenn. R. Evid. 103(a)(1) (requiring a
timely objection as a prerequisite to a finding of error based on the trial court’s admission
of evidence).

        Regardless of waiver, the Defendant would not be entitled to relief on the basis of
this issue. Rule 601 of the Tennessee Rules of Evidence provides that “[e]very person is
presumed competent to be a witness except as otherwise provided in these rules or by
statute.” Tenn. R. Evid. 601. The list of persons who may be permitted to testify
includes children. See Tenn. R. Evid. 601, Advisory Comm’n Cmt. Rule 603 provides
that “[b]efore testifying, every witness shall be required to declare that the witness will
testify truthfully by oath or affirmation, administered in a form calculated to awaken the
witness’s conscience and impress the witness’s mind with the duty to do so.” Tenn. R.
Evid. 603. In addition, a trial court may permit leading questions of a child victim of a
sexual offense on direct examination “when necessary to fully develop the witness’s
testimony.” State v. Jonathan Ray Swanner, No. E2010-00956-CCA-R3-CD, 2011 WL
5560637, at *6 (Tenn. Crim. App. Nov. 14, 2011) (citing Swafford v. State, 529 S.W.2d
748, 749 (Tenn. Crim. App. 1975)), perm. app. denied (Tenn. Mar. 7, 2012). A witness’s
competency to testify and the use of leading questions on direct examination are left to
                                           - 10 -
the trial court’s discretion. See State v. Nash, 294 S.W.3d 541, 548 (Tenn. 2009)
(citation omitted); Tenn. R. Evid. 611(a), (c)(1) (“Leading questions should not be used
on direct examination of a witness except as may be necessary to develop the witness’s
testimony.”).

       The victim was sworn before taking the stand and at the beginning of her
testimony answered in the affirmative when asked if she knew “the difference between
true and false.” She then recounted what had happened, with the prosecutor asking her
some leading questions in an attempt to develop her testimony from her initial tendency
to give one-word answers. The prosecutor’s use of leading questions was not excessive,
and the questions were in no way suggestive of the answers. We conclude, therefore, that
the Defendant is not entitled to relief on the basis of this issue.

                               III. Defective Presentment

       The Defendant contends that the presentment was constitutionally defective
because “[c]ritical elements having to do with the mens rea for the crime of aggravated
sexual battery were missing or misstated in the [p]resentment[.]” The Defendant also
points out that the language of the presentment, which charged him with “knowingly”
engaging in sexual contact with the victim, does not track the language of the trial court’s
jury instruction, which correctly charged that for the jury to find him guilty of aggravated
sexual battery, the State must have proven beyond a reasonable doubt that “the defendant
had intentional unlawful sexual contact with the alleged victim in which the defendant
intentionally touched the alleged victim’s intimate parts . . . .” The State argues that the
presentment, by referencing the relevant statute, was sufficient to charge the Defendant
with aggravated sexual battery and put him on notice of the required mens rea for the
offense. The State further argues that the Defendant has waived any claim that the trial
court’s jury instructions served as a constructive amendment to the presentment by not
raising it as an issue in the motion for new trial. We agree with the State.

       An indictment or presentment must inform the accused of “the nature and cause of
the accusation.” U.S. Const. amend. VI; Tenn. Const. art. I, § 9. In addition, Tennessee
Code Annotated section 40-13-202 requires that an indictment “must state the facts
constituting the offense in ordinary and concise language, without prolixity or repetition,
in a manner so as to enable a person of common understanding to know what is intended
and with that degree of certainty which will enable the court, on conviction, to pronounce
the proper judgment.”

      An indictment that achieves its “overriding purpose of notice to the accused will
be considered sufficient to satisfy both constitutional and statutory requirements.” State
v. Hammonds, 30 S.W.3d 294, 300 (Tenn. 2000). An indictment or presentment is
                                           - 11 -
sufficient to satisfy notice requirements if it “contains allegations that (1) enable the
accused to know the accusation to which answer is required; (2) furnish the trial court an
adequate basis for entry of a proper judgment; and (3) protect the accused from a
subsequent prosecution for the same offense.” Id. at 299 (citing State v. Hill, 954 S.W.2d
725, 727 (Tenn. 1997)). “[A] defendant cannot legally be convicted of an offense which
is not charged in the indictment or which is not a lesser offense embraced in the
indictment.” State v. Cleveland, 959 S.W.2d 548, 552 (Tenn. 1997) (citing State v.
Trusty, 919 S.W.2d 305, 310 (Tenn. 1996)). Tennessee Rule of Criminal Procedure
12(b)(2)(B) provides that a motion alleging a defect in an indictment, presentment, or
information must be raised before trial “but at any time while the case is pending, the
court may hear a claim that the indictment, presentment, or information fails to show
jurisdiction in the court or to charge an offense.”

      The presentment charged in pertinent part that the Defendant

      on or about December 22, 2014, in the State and County aforesaid, and
      before the finding of this indictment, did unlawfully commit the offense of
      AGGRAVATED SEXUAL BATTERY by knowingly engaging in
      unlawful sexual contact with [the victim] . . ., a child less than thirteen (13)
      years of age; a Class B felony in violation of T.C.A. 39-13-504, and against
      the peace and dignity of the State of Tennessee.

       The presentment clearly referenced the correct code section for the offense. Our
supreme court has held that reference to the appropriate statute provides notice to the
defendant of the applicable mens rea for the offense. See State v. Carter, 988 S.W.2d
145, 149 (Tenn. 1999). The Defendant was, therefore, put on notice of the offense for
which he was being charged, including the applicable mens rea. Moreover, it was
obvious from his defense at trial and his own testimony, in which he emphasized that any
touching that might have occurred was not intentional, that he was well aware of the
statutory elements of the crime.

       Neither of the two cases the Defendant cites in support of his argument that the
presentment was insufficient to charge him with the crime, State v. Schaller, 975 S.W.2d
313 (Tenn. Crim. App. 1997), and State v. Tymetric Lejuan Graham, No. E2006-02502-
CCA-R3-CD, 2008 WL 565714, at *1 (Tenn. Crim. App. Mar. 4, 2008), are on point
with the case at bar. In Schaller, this court concluded that an indictment was insufficient
to charge the defendant with the aggravated sexual battery of a mentally deficient victim
because, although it referenced the code section for aggravated sexual battery and
charged that the defendant had unlawfully engaged in sexual contact with a person that
the defendant knew or had reason to know was mentally deficient, it failed to charge that
the defendant was aided and abetted by another person, an element required to elevate the
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defendant’s unlawful sexual contact with a mentally deficient person from sexual battery
to aggravated sexual battery. Schaller, 975 S.W.2d at 316-17. In the case at bar, by
contrast, the presentment not only referenced the appropriate statute but also specifically
charged the Defendant with the specific element or accompanying circumstance on which
the charge was based, i.e., the victim’s being less than thirteen years of age.

        Graham can also be distinguished on its facts from the case at bar. In Graham,
this court reversed the defendant’s conviction for aggravated robbery and remanded for a
conviction and sentence for attempted aggravated robbery because the indictment
charged that the defendant attempted to take, rather than took, property from the person
of another. In that case, we rejected the State’s argument that the indictment’s citation to
the aggravated robbery statute was sufficient to put the defendant on notice of the
charged offense, noting both that “an indictment for attempt normally cites the statute of
the underlying offense,” and that the cases cited by the State relied “on the statutory
citation combined with the language in the body of the indictment.” Graham, 2008 WL
565714, at *3.

        The presentment here not only cited the aggravated sexual battery statute but also
contained sufficient facts to provide the Defendant with notice of the subsection of the
statute under which he was being charged. It also was sufficient to furnish the trial court
with an adequate basis for entry of a proper judgment and to protect the Defendant from a
subsequent prosecution for the same offense. Furthermore, we agree with the State that
the Defendant has waived any argument that the trial court’s jury instructions constituted
an effective amendment to the indictment by not raising it as an issue in his motion for
new trial. Accordingly, we conclude that the Defendant is not entitled to relief on the
basis of this issue.

                                        CONCLUSION

        Based on the foregoing authorities and reasoning, we affirm the judgment of the
trial court.

                                          ______________________________________
                                          ALAN E. GLENN, JUDGE




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