         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                       April 6, 2004 Session

        STATE OF TENNESSEE v. MATTHEW KIRK MCWHORTER

               Direct Appeal from the Criminal Court for Montgomery County
                         No. 49900104     John H. Gasaway, Judge



                     No. M2003-01132-CCA-R3-CD - Filed August 30, 2004


A Montgomery County jury convicted the Defendant, Matthew Kirk McWhorter, of three counts of
aggravated sexual battery, and the trial court imposed an eight-year sentence for each conviction, to
be served consecutively. On appeal, the Defendant contends that: (1) insufficient evidence exists
in the record to support his convictions; (2) the trial court erred by not requiring the State to elect the
offenses it wished to submit to the jury; (3) the trial court improperly admitted a law enforcement
officer’s testimony about the Defendant’s uncharged conduct; (4) the trial court erred by permitting
a law enforcement agent to testify about a recorded recollection; (5) the trial court erred by denying
the Defendant’s motion to prohibit testimony of the victim; (6) reversible error occurred when the
State failed to disclose, preserve and turn over a law enforcement official’s notes made during the
Defendant’s initial interrogation; (7) the trial court erred by allowing the State to submit an
insufficient Bill of Particulars and to deviate from its Bill of Particulars; (8) the trial court erred in
denying the Defendant’s motion to suppress his written and oral statements made to law enforcement
officials in Florida; (9) the trial court erred by failing to instruct the jury on child abuse as a lesser-
included offense; (10) the State’s closing arguments were so improper that they infected the trial with
unfairness and denied the Defendant due process; (11) the trial court erred by interrupting the natural
flow of jury deliberations to give supplemental instructions; and (12) the trial court erred in ordering
the Defendant to serve his sentences consecutively. After thoroughly reviewing the record, we
conclude that the trial court erred by failing to require the State to elect which incident of sexual
touching the State intended for the jury to consider for Count 1, aggravated sexual battery.
Accordingly, we reverse the conviction and the sentence in Count 1. We affirm the remaining
convictions and sentences.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed in Part;
                                  and Reversed in Part

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which DAVID H. WELLES and
ALAN E. GLENN , JJ., joined.

Mandy Waldrop Denson, Clarksville, Tennessee for the appellant, Matthew Kirk McWhorter.
Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General;
John Wesley Carney, Jr., District Attorney General; Arthur Beiber, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                                       OPINION
                                                        I. Facts

         This case arises from the Defendant’s sexual molestation and rape of A.G.1 in Clarksville in
1997 and 1998. On December 8, 1998, the Montgomery County Grand Jury indicted the Defendant
on sixty-five counts of rape of a child and four counts of aggravated sexual battery involving five
different victims. On September 26, 2000, the Defendant pled guilty to four counts of aggravated
sexual battery, but the trial court allowed the Defendant to withdraw those guilty pleas. On July 3,
2002, the trial court granted the Defendant’s motion to sever the sixty-nine counts according to the
five victims alleged in the indictments. The State gave notice that it would first try the following
counts: Count 3, aggravated sexual battery of A.G.; Count 4, child rape of A.G.; and Count 5, child
rape of A.G. The trial court denied the Defendant’s motion in limine to exclude his handwritten and
post-arrest statements. The trial court also denied the Defendant’s motion to prohibit A.G. from
testifying because of the lost file containing recorded prior statements of A.G. and instead instructed
the jury regarding the lost file. A jury convicted the Defendant of three counts of aggravated sexual
battery on July 25, 2002. The trial court sentenced the Defendant to eight years for each offense, and
ordered that the sentences run consecutively, for an effective sentence of twenty-four years. The
Defendant now appeals.

                                                        A. Trial

        The following evidence was presented at the Defendant’s trial. A.G. testified that he was
eleven years old at the time of the trial. A.G. said that he had an older brother who was fifteen and
a younger sister who was eight. He stated that his father was in the United States Army and was
stationed at Fort Campbell near Clarksville in 1997. He explained that other children also lived in
his Clarksville neighborhood between 1997 and 1998. He testified that he knew the Defendant
because the Defendant lived across the street from his family’s house. A.G. stated that he was
friends with a young boy who lived with the Defendant. He said that he played kickball and baseball
with other children when he lived near the Defendant. He stated that he also enjoyed playing
Nintendo video games, especially Super Smash Brothers, at his house with his brother and his
friends.

        A.G. testified that the Defendant came to his house on several occasions to visit him or baby-
sit him, though he could not remember how many times the Defendant came over. He stated that,
when the Defendant baby-sat him, his brother and sister would also be in the house. A.G. testified
that, on one such occasion, the Defendant reached under A.G.’s pajamas and touched his “private
part” with his hand when the two were in A.G.’s bedroom, which he shared with his brother. He


       1
           It is the policy of this Court to use the initials of child sexual abuse victims instead of their names.

                                                            -2-
stated that his parents were at home when the Defendant first touched his penis. A.G. said that the
Defendant touched his penis on another occasion when his parents were at “Ms. Sherry’s house”
across the street. He testified that, while his parents were across the street at “Ms. Sherry’s house”
and his brother was on the floor of the bedroom playing video games, the Defendant, who was on
the bed with A.G., reached under A.G.’s pajamas and touched his penis. A.G. testified that, on a
different occasion in his sister’s room, the Defendant put his mouth on A.G.’s “front private part.”
He stated that, on another occasion in his sister’s room, the Defendant made A.G. put his mouth on
the Defendant’s penis and touch the Defendant’s penis with his hand. A.G. testified that he could
not remember how many times the Defendant touched his penis or he touched the Defendant’s penis.

        A.G. stated that he never told his mother or his father about the sexual abuse because the
Defendant “would give me stuff . . . . [i]f I wouldn’t tell.” He testified that the Defendant told him
that he would give him a Nintendo 64 if he agreed not to tell his parents about the sexual abuse.
A.G. stated that he could not remember who he first told about the abuse.

        On cross-examination, A.G. testified that he could not remember exactly how old he was
when the Defendant touched him, but he remembered that he was in the second or third grade. A.G.
stated that he enjoyed playing Nintendo combat games like Mortal Combat with his older brother.
He said that he could not remember when the Defendant told him that he would give him a Nintendo
64 if he did not tell his parents about the abuse. A.G. testified that he told his parents about the
sexual abuse “when they found out,” though he could not remember how they found out about the
abuse. He said that, when he told his parents, “[t]hey said they loved me.” He stated that he could
not recall going to the Department of Children’s Services. A.G. said that he remembered testifying
in front of a grand jury, though he could not recall what he said. He stated that he remembered
telling the grand jury the same thing that he was testifying to at this trial. A.G. said that he
remembered telling the Grand Jury that the Defendant put his mouth on his penis and that A.G. put
his mouth on the Defendant’s penis. He testified that, when his parents went to “Ms. Sherry’s
house,” he and the Defendant went into his sister’s room, and the Defendant put his mouth on his
penis. A.G. stated that he could not remember what the Defendant was wearing at that time, though
he recalled that it was nighttime when the Defendant sexually abused him. He explained that the
Defendant was good friends with his parents and himself, and he was not afraid of the Defendant.

        A.G. said that the first incidence of sexual abuse occurred during the school year, and then
a summer passed between that incident and the next, which also occurred during the school year.
He stated that, every time the Defendant sexually abused him, the door to the room would be closed.
A.G. said that he talked with some of the prosecutors about the sexual abuse before testifying in front
of the grand jury and at trial. He stated that he also talked with a counselor at Fort Campbell about
the sexual abuse.

         R.G.,2 A.G.’s mother, testified that her husband was assigned to duty at Fort Campbell from


         2
          In order to protect the privacy of the child victim’s family, we will use the victim’s mother’s initials instead
of her name.

                                                           -3-
1996 to 2000. She stated that, during that four year period, she and her family lived on May Apple
Drive in Clarksville. R.G. said that she was good friends with her neighbor, Sherry Dowker. She
testified that she knew the Defendant because he moved in with the Farr family across the street.
She explained that the Defendant worked on her family’s computer after it crashed in 1996, and he
would talk with her children. R.G. stated that A.G. and his brother would play outside and play
Super Nintendo inside. She said that, until she learned of the sexual abuse, she considered the
Defendant a friend. She explained that she would occasionally ask the Defendant to baby-sit the
children while she and her husband went to military functions or across the street to Sherry Dowker’s
house. She said that the Defendant baby-sat for her about five to seven times in 1997 and 1998.
R.G. testified that the Tennessee Department of Children’s Services (“DCS”) called her in late July
or early August of 1998 regarding the sexual abuse of A.G. She said that Deanna Groves of DCS
interviewed A.G., and he received a physical exam at the Our Kids Center in Nashville about two
weeks after DCS called her. She testified that she told A.G. to tell the truth.

         On cross-examination, R.G. said that DCS told her to bring A.G. down to DCS in Nashville.
She testified that Deanna Groves told her and her husband that the Defendant said that he sexually
abused A.G. She stated that A.G. told her about the sexual abuse about a week after they met with
DCS. R.G. testified that A.G. made very specific disclosures about how he was sexually abused by
the Defendant. She acknowledged that the Our Kids Center report stated that “[R.G.] . . . reports that
[A.G.] has not made a specific disclosure about the nature of sexual contact.” She also
acknowledged that the Our Kids Center report stated that “when questioned about sexual contact
[A.G.] denied anyone had touched his private area.” R.G. stated that A.G. and his brother would
normally be near each other at bedtime because they shared a bedroom. She said that the Defendant
often would “hang out” in A.G.’s room with A.G. and his brother at night when she and her husband
were at home. She said that she could not recall whether the door to their room was open or closed
when the Defendant was in there with them. R.G. testified, “There was a time when I walked in and
[the Defendant] and [A.G.] were under the covers in the bedroom. . . . And [A.G.’s brother] was
sitting on the floor.” She said that she did not say anything when she saw the Defendant and A.G.
under the covers. R.G. stated that A.G. adored the Defendant and was not afraid of him because they
were friends. She said that she never saw any kind of sexual contact between the Defendant and
A.G. She testified that A.G. saw a mental health professional in 1995 because he missed his father,
who was stationed in Korea at the time, and because A.G. was having suicidal tendencies.

         On redirect examination, R.G. testified that she and her husband told “[A.G.] to tell the truth
and to answer all the questions that anyone asks of him.” She said that she may have told the
Defendant that A.G. missed his dad and had suicidal tendencies. On recross-examination, R.G.
testified that the prosecutors spoke with A.G. before he testified before the grand jury and three times
before he testified at the Defendant’s trial. She said that she had not talked with A.G. about the
sexual abuse in the three years preceding the trial.

       Michael Richard Ellis, an agent with the Florida Department of Law Enforcement in
Tallahassee, Florida, testified that he interviewed the Defendant on July 17, 1998, in a conference



                                                  -4-
room located in the field office.3 He said that Special Agent Timothy Forrestall with the Federal
Bureau of Investigation also interviewed the Defendant at that time. Agent Ellis testified that the
Defendant was arrested and read his Miranda rights before they interviewed him. He said that the
Defendant signed a Miranda rights waiver form and then spoke with him and Agent Forrestall.
Agent Ellis stated that he and Agent Forrestall interviewed the Defendant for about three and a half
hours that evening until all three got tired and then they stopped the interview between 10:00 and
10:30 p.m. He said that he and Agent Forrestall met with the Defendant on the morning of July 18,
1998, to continue the interview at the Leon County Jail in Tallahassee. Agent Ellis testified that,
within the first hour of that interview, the subject of A.G. came up. The agent stated that the
Defendant said that he was twenty years old at the time he had sexual contact with A.G. in
Clarksville between 1997 and 1998. Agent Ellis stated that the Defendant told them that, on one
occasion, he baby-sat A.G. and the other children when A.G.’s parents had gone out. The agent
testified that the Defendant said that he and A.G. “ended up in [A.G.’s] bedroom.” The agent stated:

         [The Defendant] made reference to [A.G.] having a virtual pet game and that he had
         gone to [A.G.’s] house for the purpose of repairing that pet game[,] and while there,
         he and [A.G.] were sitting together and that he had placed his arm across [A.G.]. . .
         . [The Defendant] indicated that he had observed that [A.G.] then obtained an
         erection and that this resulted in discussions that were sexual in nature.

Agent Ellis stated that the Defendant told them that, after observing that A.G. had an erection, “he
performed oral sex upon [A.G.]” The agent explained, “[The Defendant] said that on two occasions
he had performed oral sex upon [A.G.] and on one occasion, [A.G.] performed oral sex upon him.”
The agent said that the Defendant admitted to having three sexual encounters with A.G.

        Agent Ellis testified that, following this second interview with the Defendant, he gave the
Defendant a legal pad and a felt tipped pen and told the Defendant “that . . . if he wanted to organize
his thoughts, regarding the conversation that we had had, that he might take advantage and use that
pen and pad that I have provided to him.” The agent stated that he returned to the Leon County Jail
on the morning of July 19, 1998, and met with the Defendant for a couple of hours. He testified that
the Defendant gave him a handwritten note on legal paper that was signed by the Defendant and
dated July 19, 1998. The trial court allowed copies of the note to be distributed to the jury, and
Agent Ellis then read the note:


         3
          At a hearing outside the presence of the jury on the Defendant’s motion to exclude the handwritten and
post-arrest statements to Agent Ellis and Agent Timothy Forrestall of the Federal Bureau of Investigation, the agents
explained that they were jointly investigating the use of the Internet to solicit young children for sex. As part of the
investigation, an undercover agent with the Florida Department of Law Enforcement represented herself as a twelve-year-
old boy in an Internet chatroom. The Defendant began significant dialog with the undercover agent posing as the young
boy, and, on July 17, 1998, the Defendant traveled to Tallahassee for the purpose of engaging in sexual relations with
the young boy. As a result, the agents arrested the Defendant at the designated meeting place and took him to the Florida
Department of Law Enforcement headquarters for questioning. The D efendant was convicted in the United States
District Court in Tallahassee of interstate travel for the purpose of engaging in sex with a minor and sentenced to two
years in prison.

                                                          -5-
       [A.G.], this was the case of hugging, etc., stimulated him in a different way than say
       hugging his father. [A.G.] was a happy kid even though he told me he wished his
       Mom and Dad paid more attention to him and not forced him to do things against his
       will (play sports that he didn’t want to). [A.G.] wasn’t extremely intelligent, but he
       wasn’t stupid, your typical average American kid. We only had sexual contact
       maybe 2-3 times with a large amount in between incidents. I guess I started it the
       first time. He did thereafter. He told me he loved me. It seemed in his tone of voice
       he was just–more out of habit than meaning it, Signed [the Defendant], 19 July, 1998.

Agent Ellis stated that, after talking with the Defendant and taking his note, he went to Clarksville
on July 21, 1998, and talked with Detective Billy Batson of the Clarksville Police Department about
the Defendant’s confession. He said that he had no direct contact with DCS.

        On cross-examination, Agent Ellis said that he knew that the Defendant had been awake for
a number of hours when he and Agent Forrestall started interrogating him, but he did not know the
total number of hours. He stated that he and Agent Forrestall used a “bad cop/good cop routine”
when they interrogated the Defendant. Agent Ellis said that he asked the Defendant for his
cooperation during the interview. He explained, “I told him it was my experience that if he retained
an attorney, that the attorney would not allow him to talk to us until some proper time in the
process.” The agent testified that a photograph of A.G. was found on the Defendant when they
searched him in Tallahassee. Agent Ellis admitted that he prepared to testify by reading investigative
reports that he made after he interviewed the Defendant. The agent stated that he would not have
remembered the details of his interview with the Defendant four years ago without refreshing his
memory with the investigative reports. Agent Ellis testified that he made the investigative reports
from his handwritten notes, which “were shredded after we thought the case had been resolved.”

        The Defendant called Timothy Forrestall, a special agent with the Federal Bureau of
Investigation, who testified that he was not aware that the Defendant had been awake for thirty hours
at the time he arrested him in Tallahassee. Agent Forrestall stated that he and Agent Ellis
interviewed the Defendant for three hours. He said that, during the interview, he showed the
Defendant the photograph of A.G. that they found on the Defendant. The agent said that he and
Agent Ellis asked the Defendant to identify the boy in the photograph and asked him “if he had done
anything improper with that boy.” Agent Forrestall testified that the Defendant knew A.G.’s date
of birth, and, at that point, he thought “there was some probability” that the Defendant had sexual
contact with A.G. The agent stated that, during the first interview session, the Defendant did not
admit to having sexual contact with A.G.

        On cross-examination, Agent Forrestall stated that he took no notes during the Defendant’s
interview, rather Agent Ellis took notes and prepared the investigative reports. Agent Forrestall
stated that he could not remember in detail what the Defendant said during the interview because he
did not take any notes, but he remembered that the subject of A.G. came up during the interview.
He said that Agent Ellis gave the Defendant a pad and pen to write letters to the victim and the
victim’s family. The agent said that he did not participate in the Defendant’s interview on July 19,


                                                 -6-
1998.

         The Defendant, who was twenty-five at the time of trial, testified that he wrote the confession
dated July 19, 1998. He stated that he wrote the confession “[t]o prevent [A.G.] from going through
what he actually went through.” The Defendant said that the statement he signed was not true, and
he denied telling Agent Ellis and Agent Forrestall that he had sexual contact with A.G. The
Defendant testified that he did go to A.G.’s house to help A.G. fix a virtual pet game, which needed
new batteries, and he gave A.G. new batteries for the game. He denied telling the agents that he
performed fellatio on A.G. and that A.G. performed fellatio on him. The Defendant admitted telling
Agent Forrestall that he had sexual contact with A.G., but “it was touching only.” He stated that he
told Agent Forrestall that he touched A.G., even though that was not true, because he wanted the
agent to stop yelling at him. The Defendant explained, “As soon as I said it, he sat down and Agent
Ellis started questioning me instead of [Agent] Forrestall.”

         The Defendant testified that, in 1997, he worked as a computer technician for Liberty
Computers in Clarksville, and, in 1998, he started a job at Columbia HCA. He stated that he lived
with the Farr family across the street from A.G.’s house between 1997 and 1998. The Defendant
said that, “Whenever I had free time, I went over to see how [A.G. and his family] were doing and
things like that.” He stated that, when he went to A.G.’s house, “[u]sually, I stayed in the living
room and talked to [R.G.].” The Defendant explained that he built R.G.’s computer in 1996, and,
“[w]hen I built the computer, I became better friends with them, and . . . I spent more time with
them.” He said that he went to A.G.’s house once or twice a month. The Defendant testified that
he baby-sat for A.G.’s family no more than three or four times. He said that when he went to A.G.’s
house, there was normally another adult in the house, such as A.G.’s mother or father. He stated
that, in 1997 and 1998, he was friends primarily with the Farr family and A.G.’s family.

         The Defendant testified that he liked kids because “[t]hey are funny and they see the world
from a different perspective than we do.” He said that kids are funny “[b]ecause they don’t have to
worry about all the things that adults have to worry about everyday.” He explained that the majority
of the people he worked with in the computer field “were very boring,” so he enjoyed the spontaneity
of children. The Defendant testified that, when he was at A.G.’s house in 1997 and 1998, he spent
half the time with either A.G.’s mother or father and half the time with A.G. alone. He said that,
normally, he and A.G. would “hang out” in A.G.’s room, which he shared with his brother. The
Defendant said that they would usually play Nintendo in A.G.’s room. He explained that A.G.
enjoyed playing a hockey game on Nintendo with the Defendant because A.G. could beat the
Defendant. He testified that he “was never, ever in the house alone with [A.G.],” because if A.G.’s
parents were not at home, A.G.’s brother and sister would be there. He said that A.G.’s brother
would be in the bedroom with him and A.G. playing Nintendo. He said that he went in A.G.’s
sister’s room on two occasions, once to play a keyboard and another time to ask A.G.’s father a
question. The Defendant stated that he was never alone with A.G. in A.G.’s sister’s room. He
denied touching A.G.’s private part or putting his mouth on A.G.’s private part in A.G.’s sister’s
room. The Defendant also denied that A.G. put his mouth on his private part in that room. He
denied that he ever laid on A.G.’s bed with A.G., but he admitted that they often sat on the same bed


                                                  -7-
in A.G.’s room when they played video games. The Defendant denied getting under the covers with
A.G. on his bed, but he said that A.G. would sometimes be under the covers while he was close to
A.G. on the bed. The Defendant said that A.G. would lean up against him while they were sitting
on the same bed. He explained that, occasionally, A.G. would fall asleep in his room, so he would
lay A.G. on the bed and cover him up. The Defendant said that he would continue to sit on the bed
and play video games after tucking in A.G. He explained that he was never alone with A.G. when
A.G. was lying on the bed and he was sitting on the bed with him. The Defendant denied touching
A.G.’s private part in A.G.’s room. He also denied that A.G. put his mouth on his private part or that
he put his mouth on A.G.’s private part. The Defendant stated that he never touched A.G. in a sexual
way.

         The Defendant testified that A.G. acted like he loved him because “[a]s soon as I walked
through the door, he would come flying at me. . . . [I]f he didn’t realize I came in immediately, there
were many times he would run in the living room and he would run circles around me until I picked
him up.” The Defendant said that A.G. was affectionate toward him because A.G. liked him, and
he liked A.G. He stated that he loved A.G., and he said his relationship with A.G. “was like he was
my little brother.” The Defendant testified that A.G. was comfortable around him and often fell
asleep leaning against the Defendant. He stated that he did not “feel anything sexual towards [A.G.]
at all,” and there was nothing to indicate that A.G. felt anything sexual toward him. The Defendant
testified that he would play Nintendo with A.G. in his room because “[A.G.] would drag me back
there. He would grab me by the hand and take off.” He said that the door to A.G.’s room was never
shut when he was in the room with A.G. He explained that anyone walking down the hallway of the
house could see inside A.G.’s room when they were playing Nintendo. The Defendant said that R.G.
often walked by the room when he came over, and she would come into the room many times to see
what he and A.G. were doing.

        The Defendant testified that he was arrested by Agent Ellis and Agent Forrestall on July 17,
1998, in Tallahassee. He said that he had been awake for thirty hours at the time he was arrested,
and he was tired. He stated that, before that day, he had never been arrested. The Defendant testified
that the agents took him into a conference room at the Florida Department of Law Enforcement
headquarters. He said that Agents Ellis and Forrestall interrogated him for about three and a half
hours. The Defendant stated that the agents interrogated him about A.G. for approximately one hour
after the agents found a photograph of A.G. in his wallet. He said that Agent Forrestall “said that
he knew that I had done some things with [A.G.],” and the Defendant responded that he “had done
nothing to [A.G.].” He testified that the agents asked him if he had sex with A.G. “at least fifty
different ways.” The Defendant stated that Agent Forrestall told him that if he did not sign the
Miranda rights form, “it could be worse for you. We would have to tell the Judge and the United
States Attorney that you didn’t want to cooperate with us and we will have to take you straight to
jail.” The Defendant said that Agent Forrestall “was very aggressive, very mean. He would yell and
throw his notepad. He would get up in my face and make fists and slam it on the table.” He
explained that, after Agent Forrestall had an outburst and yelled at him, Agent Ellis would quietly
take over and ask questions. The Defendant said that the agents had a “good cop/bad cop” routine,
with Agent Ellis being the “good cop.” He stated that the agents told him that, unless he cooperated


                                                 -8-
with them, A.G. would be subjected to physical exams and repeatedly interrogated until A.G.
admitted to being raped. The Defendant said that the agents also told him that A.G. may be taken
into state custody if the Defendant did not cooperate.

         The Defendant testified that the agents then took him to the Leon County Jail, where he was
placed on suicide watch. He said that, on July 18, 1998, Agents Ellis and Forrestall came to the jail
to interview him a second time. The Defendant stated that, during the second interview, he “went
from answering the questions truthfully to answering the questions . . . in a manner that they wanted
to be answered.” He said that he answered “yes” when asked if he had sexual contact with A.G. The
Defendant explained, “I was going to do what I had to do to keep [A.G.] from going through what
I had just went through that night. . . .” He said that Agent Forrestall “started yelling and screaming
and getting louder and then I guess it was about an hour into the interview, I finally said yes, it
happened.” He stated that he never told them that he performed fellatio on A.G. The Defendant
testified that Agent Ellis gave him a pad and a pen and asked him to write a paragraph about A.G.,
and he agreed to write about his involvement with A.G. He explained, “[Agent Ellis] said that the
statement would ensure that things would go smoothly . . . .” The Defendant admitted to writing that
he had sexual contact with A.G. about two to three times with a large amount of time between
incidents, but he said that the statement was not true. He said that, on July 19, 1998, Agent Ellis read
the statement and told him that he left out information about who started the sexual contact. The
Defendant said that he wrote that he started the sexual contact on the first occasion, but that A.G.
started the sexual contact on subsequent occasions. The Defendant testified that his recollection of
the interrogations by the agents was “sort of fuzzy” because “[t]hat was one of the worst experiences
that I have ever gone through in my life and it took quite a while to start remembering what
happened.” The Defendant testified that he gave false statements to the agents to stop Agent
Forrestall from yelling at him and to prevent A.G. from having to go through interviews about the
sexual abuse.

        On cross-examination, the Defendant testified that he worked at Columbia HCA in Nashville
in 1997 and 1998, and it took him about an hour to commute to work from Clarksville. He said that
he spent most of his limited free time in the company of children because he found them pleasant
and enjoyable. The Defendant stated that R.G. told him that A.G. was very upset when his father
went to Korea in 1995. He denied spending his free time playing Nintendo games with children.
The Defendant denied promising A.G. a Nintendo 64. He said he spent a large amount of money
on computer equipment, in addition to paying for a car loan, insurance and gas. The Defendant
admitted that he was in A.G.’s room with A.G. and his brother when the boys’ parents were across
the street. He denied being under the covers with A.G. on the bed. He testified that R.G. was
mistaken when she said that she could not see from the kitchen area into A.G.’s room. The
Defendant testified that A.G. was mistaken or lying about always shutting the door to his bedroom
to keep the cool air in. He denied being in A.G.’s room alone with A.G. when the door was closed.


        The Defendant testified that Agents Ellis and Forrestall were mean to him when they
interrogated him in Florida. He said that Agent Forrestall was especially mean to him and yelled at


                                                  -9-
him most of the time. The Defendant admitted going to the restroom with Agent Ellis and taking
some pills at the Florida Department of Law Enforcement. He said he took high doses of Tagamet,
Halcion and Xanax in the restroom, and those drugs caused him to feel “spacey” and very dizzy. He
said that those drugs caused him to “have very little recollection of what happened . . . .” The
Defendant testified that he has “had lots of time to think about it,” and he now remembers more
about his interviews with the agents. He explained that his written statement that he sexually abused
A.G. was not true. He said that he lied in the statement that he signed for Agent Ellis. The
Defendant testified that Agent Ellis lied when he said that the Defendant admitted to having sexual
contact with A.G. The Defendant said that Agent Ellis also lied when he said that the Defendant
admitted to performing fellatio on A.G. and having A.G. perform fellatio on him. The Defendant
admitted telling Agent Forrestall that he had sexual contact with A.G., but it was only touching. He
said that he lied when he told Agent Forrestall that he had sexual contact with A.G.

       Dr. William Bernet, a forensic psychiatrist and child psychiatrist, testified that he reviewed
some of A.G.’s psychotherapy and medical records and some of the investigative records by Agent
Ellis. Dr. Bernet stated that he also examined the Defendant’s written statement and some other
records regarding A.G. The doctor said that he interviewed the Defendant for about two and half
hours. Dr. Bernet testified that he was never able to review the early statements that A.G. made
regarding the sexual abuse. He explained:

        [A.G.] was interviewed early in this investigation by several different people and I
        haven’t been able to see those records, and as far as I know, they don’t exist at this
        point, or I don’t actually know what records were originally made, but in any case,
        nobody has been able to provide to me the original interviews of [A.G.], which
        usually would have been very important to me in doing this kind of evaluation. Or
        the interviews conducted by DCS, for instance, I have not been able to see. Also, I
        have not been able to interview [A.G.] himself. Sometimes when I do evaluations,
        like this, I am able to interview the child and in this case, I have not been able to do
        that.

Dr. Bernet testified that children must be interviewed in a particular way in order to ensure that the
children’s statements are accurate and truthful. He said that “children don’t always tell the truth
when they make a statement . . . .” He explained that “research has been done to show that there are
certain aspects or certain factors that seem to be consistent with a true allegation and there are other
factors or aspects of the case that are consistent with a false allegation.” The doctor said that, “First
of all, you have to keep a really good record of the interview and the best way to do that, of course,
is to make a tape, make an audio or videotape.” Dr. Bernet testified that the interviewer must tell
the child the rules for the interview and encourage the child to tell the truth, such as telling the child,
“today we are talking about real life things, things that really happened.” He said that the interviewer
also must encourage the child to give a narrative account of what happened during the alleged abuse
and avoid leading questions about the abuse. Dr. Bernet testified that “a fundamental part of the
technique of interviewing children, is to help the child learn how to give a . . . free, narrative account
and the reason why that is important in this case, is that as far as I can tell, that has never occurred


                                                   -10-
in this case.” He explained that, after reviewing the different interviews with A.G., “as far as I can
tell, [A.G.] has never given a simple . . . narrative account of being abused by anybody, including
by [the Defendant].”

        Dr. Bernet testified that a child may answer questions about sexual abuse in a certain way
because “through interviewing or repetitive questioning, the child has come to adopt the opinion or
the position of the interviewer, and the interviewer might be a parent, it might be a professional
interviewer like a therapist.” He explained that a child can be indoctrinated to make false statements
about sexual abuse. Dr. Bernet stated that he was concerned that A.G. may have been indoctrinated
to make false statements. He explained:

        [A.G.] was interviewed by a number of different people, by DCS, the police, by Our
        Kids, by Dr. Ruby, I think by the District Attorney, and as far as I can tell from the
        records that we do have, is [A.G.] repeatedly said that he had not been abused,
        although ultimately, he makes this little statement . . . about being touched on his
        peanut, only after a number of times of making denials. So that is something to think
        about as to whether or not he was the victim of interviewer suggestion. Now, I guess
        that I should mention that there are children who are simply frightened or scared or
        who are reluctant to make a statement initially and so sometimes, they don’t make
        a statement until the second or third interview, so that is possible. But even then, .
        . . eventually when they do make a statement, then they should be able to give this
        free narrative that I mentioned before. . . .

Dr. Bernet explained that some children enjoy making up stories and engaging in fantasy, and those
children were more likely to make false statements about sexual abuse.

        Dr. Bernet testified that adults “also sometimes make false statements. In particular, what
is perhaps the most troubling is that sometimes adults make confessions, they make statements to
the police and they make confessions that are not true.” He stated that some adults make voluntary
false confessions to police, while other adults are coerced by police into making false confessions.
He explained, “There are different reasons why a person might do this . . . and in fact, you know, I
think what I have learned about what happened to [the Defendant], I think that he’s probably an
example of a coerced compliant false confession.” Dr. Bernet described the Defendant as a “passive
compliant person” who “is more likely to get kind of pushed into doing something that is not in his
interests.” The doctor stated that the Defendant’s sleep deprivation contributed to the Defendant not
thinking clearly during the interrogations. He explained, “[The Defendant] eventually got the idea
that he would be better off . . . and [A.G] would be better off if he simply gave in and wrote that
paragraph that you have seen.”

        On cross-examination, Dr. Bernet testified that he did not hear A.G. testify earlier in the trial
and did not know whether A.G. was lying when he said that the Defendant sexually abused him. He
stated that it was possible that A.G. told the truth about being sexually abused by the Defendant. The
doctor said that it would have been helpful if he could have interviewed A.G., but R.G. refused to


                                                  -11-
allow A.G. to be interviewed. Dr. Bernet testified that promising to buy an expensive video game
system for a child “is the kind of thing that could conceivably be part of an actual abuse situation in
the sense that it could be part of grooming, [where] the actual pedophiles groom their victims by
doing nice things for them.” The doctor stated that he believed that the Defendant made a false
confession because of his “passive personality style” and the way in which he was interrogated by
the agents.

         The State then called Agents Forrestall and Ellis as rebuttal witnesses. Agent Forrestall
testified that he did not scream at the Defendant or pound his fists on the table during the interviews
with the Defendant in Florida. The agent stated that he was calm and business-like when he was
interviewing the Defendant. Agent Ellis testified that he and Agent Forrestall were calm and casual
when they interviewed the Defendant in Florida. He said that he and Agent Forrestall “obviously
wanted to identify that we had control of the situation, but we certainly weren’t abusive.” Agent
Ellis denied that they screamed or yelled at the Defendant and denied that Agent Forrestall beat his
fists on the table. Agent Ellis stated that he took notes on a yellow legal pad, but he did not throw
the legal pad down in front of the Defendant.

        After the presentation of evidence and closing arguments, the jury found the Defendant guilty
of three counts of aggravated sexual battery.

                                      B. Sentencing Hearing

        The following evidence was presented at the Defendant’s sentencing hearing. The State
introduced the Defendant’s presentence report into evidence. The Defendant testified that he was
twenty-five years old at the time of the sentencing hearing. He stated that he was sorry that his case
took four years to be resolved, because “[e]verybody has gone through all kinds of stuff . . . [and]
nobody should have to go through it. And that includes me.” The Defendant explained that he was
sorry that A.G. had to testify at his trial. He stated, “[H]e was terrified when he had to testify. It
wasn’t something he wanted to do. . . . I was very sorry he had to go through that. I’ve done
everything I could to prevent him from having to do that from the very beginning.”

        The State requested that the trial court apply the following enhancement factors under
Tennessee Code Annotated section 40-35-114 (1997 & Supp. 2002): (2) the defendant has a previous
history of criminal convictions or criminal behavior in addition to those necessary to establish the
appropriate range; and (16) the defendant abused a position of public or private trust, or used a
special skill in a manner that significantly facilitated the commission or the fulfillment of the
offense. The State also requested that the trial court order the Defendant’s sentences to be served
consecutively under Tennessee Code Annotated section 40-35-115(b)(5) (1997). The Defendant
requested that the trial court order the Defendant’s sentences to be served concurrently because the
time span of the abuse was relatively short and there was no evidence of any residual physical or
mental damage to the victim. The Defendant also requested that the trial court apply the following
mitigating factors under Tennessee Code Annotated section 40-35-113 (1997): (1) the defendant’s
criminal conduct neither caused nor threatened serious bodily injury; and (6) the defendant, because


                                                 -12-
of youth or old age, lacked substantial judgment in committing the offense.

        After considering the evidence presented at the sentencing hearing, the trial court found
enhancement factors (2) and (16) to be applicable to the Defendant’s convictions. Tenn. Code Ann.
§ 40-35-114. The trial court then found that mitigating factor (1) applied to the Defendant’s
convictions. Tenn. Code Ann. § 40-35-113. The court found that, “while [the Defendant] has
expressed regret concerning the process he has not indicated any sort of remorse for the crimes for
which he has been convicted. There’s no indication of any contrition on his part for engaging in the
acts for which he was convicted.” The trial court sentenced the Defendant to eight years for each
count of aggravated sexual battery and ordered the Defendant’s sentences to run consecutively under
Tennessee Code Annotated section 40-35-115(b)(5), for an effective sentence of twenty-four years
in prison. The Defendant now appeals.

                                             II. Analysis

        On appeal, the Defendant contends that: (1) insufficient evidence exists in the record to
support his convictions; (2) the trial court erred by not requiring the State to elect the offenses it
wished to submit for consideration by the jury; (3) the trial court erred under Tennessee Rule of
Evidence 404(b) by admitting a law enforcement officer’s testimony of the Defendant’s uncharged
conduct; (4) the trial court erred by permitting a law enforcement agent to testify about a recorded
recollection under Tennessee Rule of Evidence 803(5); (5) the trial court erred under State v.
Ferguson, 2 S.W.3d 912 (Tenn. 1999), and Tennessee Rule of Criminal Procedure 26.2 by denying
the Defendant’s motion to prohibit testimony of the victim and instead giving an instruction at the
end of the trial after the alleged victim testified regarding the missing tape-recorded statements of
the victim; (6) reversible error occurred when the State failed to disclose, preserve and turn over a
law enforcement official’s notes made during the initial interrogation of the Defendant; (7) the trial
court erred by allowing the State to submit an insufficient Bill of Particulars and to deviate from its
Bill of Particulars by submitting evidence that another witness was present during one alleged
touching of the victim; (8) the trial court erred in denying the Defendant’s motion to suppress his
written and oral statements made to law enforcement officials in Florida; (9) the trial court erred by
failing to instruct child abuse as a lesser-included offense of child rape and aggravated sexual
battery; (10) the State’s closing arguments were so improper that they infected the trial with
unfairness and denied the Defendant due process; (11) the trial court erred by interrupting the natural
flow of jury deliberations to give supplemental instructions; and (12) the trial court erred in ordering
the Defendant to serve his sentences consecutively.

                                  A. Sufficiency of the Evidence

       First, the Defendant contends that the evidence presented at trial was insufficient to support
his convictions for aggravated sexual battery. When an accused challenges the sufficiency of the
evidence, an appellate court’s standard of review is whether, after considering 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(e); Jackson v. Virginia, 443


                                                 -13-
U.S. 307, 324 (1979); State v. Carter, 121 S.W.3d 579, 588 (Tenn. 2003); State v. Smith, 24 S.W.3d
274, 278 (Tenn. 2000). This rule applies to findings of guilt based upon direct evidence,
circumstantial evidence, or a combination of both direct and circumstantial evidence. State v.
Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999).

        In determining the sufficiency of the evidence, this Court should not re-weigh or re-evaluate
the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Nor may this
Court substitute its inferences for those drawn by the trier of fact from the evidence. State v. Buggs,
995 S.W.2d 102, 105 (Tenn. 1999); Liakas v. State, 286 S.W.2d 856, 859 (Tenn. 1956). Questions
concerning the credibility of the witnesses, the weight and value of the evidence, as well as all
factual issues raised by the evidence are resolved by the trier of fact. Liakas, 286 S.W.2d at 859.
This Court must afford the State of Tennessee the strongest legitimate view of the evidence
contained in the record, as well as all reasonable inferences which may be drawn from the evidence.
State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). Because a verdict of guilt against a defendant
removes the presumption of innocence and raises a presumption of guilt, the convicted criminal
defendant bears the burden of showing that the evidence was legally insufficient to sustain a guilty
verdict. Id.; see State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000).

         The Defendant was convicted of three counts of aggravated sexual battery. Aggravated
sexual battery is “unlawful sexual contact with a victim by the defendant or the defendant by a victim
. . . [and] [t]he victim is less than thirteen (13) years of age.” Tenn. Code Ann. § 39-13-504(a)(4)
(1997). “Sexual contact” includes “the intentional touching of the 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.” Tenn. Code Ann. § 39-13-501(6) (1997).
“Intimate parts” includes “the primary genital area, groin, inner thigh, buttock or breast of a human
being.” Tenn. Code Ann. § 39-13-501(2).

        After considering the evidence in the light most favorable to the State, we conclude that
sufficient evidence exists in the record to support the Defendant’s convictions. A.G. testified that
the Defendant touched his penis on at least four separate occasions. The first incident of sexual
contact occurred when the Defendant put his hands under A.G.’s pajamas and touched his penis with
his hands while they were in A.G.’s room and his parents were at home. The next incident of
touching occurred when the Defendant again put his hand under A.G.’s pajamas and touched his
penis with his hands while they were in A.G.’s room, A.G.’s brother was on the floor playing
Nintendo, and A.G.’s parents were at Sherry Dowker’s house. The third incident of sexual contact
occurred when the Defendant put his mouth on A.G.’s penis while they were in A.G.’s sister’s
bedroom. The fourth incident of sexual contact occurred when the Defendant made A.G. put his
mouth on the Defendant’s penis while they were in A.G.’s sister’s bedroom. A.G. testified generally
to another incident of sexual touching by the Defendant with his hands, but the victim was not
specific.

       The Defendant made the following written statement to the law enforcement officials in
Florida: “[A.G.], this was the case of hugging, etc., [that] stimulated him in a different way than say


                                                 -14-
hugging his father. . . . We only had sexual contact maybe 2-3 times with a large amount in between
incidents. I guess I started it the first time. He did thereafter. . . .” Agent Ellis testified that the
Defendant told him that “he and [A.G.] were sitting together and that he had placed his arm across
[A.G.]. . . . [The Defendant] indicated that he had observed that [A.G.] then obtained an erection and
that this resulted in discussions that were sexual in nature.” Agent Ellis stated that the Defendant
told them that, after observing that A.G. had an erection, “he performed oral sex upon [A.G.].” The
agent explained, “[The Defendant] said that on two occasions he had performed oral sex upon [A.G.]
and on one occasion, [A.G.] performed oral sex upon him.” The agent said that the Defendant
admitted to having three sexual encounters with A.G. Moreover, the evidence was undisputed that
A.G. was six or seven years old when the Defendant sexually molested him. Therefore, based upon
this evidence, we conclude that a rational trier of fact could have found the essential elements of
three counts of aggravated sexual battery beyond a reasonable doubt.

                                       B. Election of Offenses

        The Defendant next contends that the trial court erred by not requiring the State to elect the
offenses that it wished to submit for consideration by the jury. The Defendant contends that A.G.
testified to six separate instances of sexual contact, and, at the end of the trial, the State “did not
choose which of the six sexual contacts . . . the jury should consider when deciding whether to
convict the [D]efendant of the three charged offenses. . . . There can be no assurance . . . that the jury
reached a unanimous verdict as to each of the three counts of the indictment.” The State argues that
no election issue exists as to the two child rape counts because A.G. testified about only two
instances of child rape. The State contends that, although A.G.’s testimony suggested more than one
instance of touching, he was specific as to only one instance that occurred when his parents were at
Sherry Dowker’s house, and the State elected during closing argument that specific instance of
sexual touching. Therefore, the State contends that its failure to elect at the close of its case-in-chief
was harmless.

         The Tennessee Supreme Court “has consistently held that the prosecution must elect the facts
upon which it is relying to establish the charged offense if evidence is introduced at trial indicating
that the defendant has committed multiple offenses against the victim.” State v. Johnson, 53 S.W.3d
628, 630 (Tenn. 2001) (citing State v. Kendrick, 38 S.W.3d 566, 568 (Tenn. 2001); State v. Brown,
992 S.W.2d 389, 391 (Tenn. 1999); State v. Walton, 958 S.W.2d 724, 727 (Tenn. 1997); Tidwell
v. State, 922 S.W.2d 497, 500 (Tenn. 1996); State v. Shelton, 851 S.W.2d 134, 137 (Tenn. 1993)).
The election requirement “safeguards the defendant’s state constitutional right to a unanimous jury
verdict by ensuring that jurors deliberate and render a verdict based on the same evidence.” Id. at
631 (citing Brown, 992 S.W.2d at 391); see Kendrick, 38 S.W.3d at 568. The Tennessee Supreme
Court explained that “‘[a] defendant’s right to a unanimous jury before conviction requires the trial
court to take precautions to ensure that the jury deliberates over the particular charged offense,
instead of creating a “patchwork verdict” based on different offenses in evidence.’” Kendrick, 38
S.W.3d at 568 (quoting Shelton, 851 S.W.2d at 137). Moreover, the election requirement serves
other interests as well: “it enables a defendant to prepare for a specific charge; it protects a defendant
against double jeopardy; it enables the trial court to review the weight of the evidence in its capacity


                                                  -15-
as thirteenth juror; and it enables the appellate court to review the legal sufficiency of the evidence.”
Id.

         “The necessity of requiring the State to make an election of the particular offense it will rely
on for conviction . . . is . . . fundamental, immediately touching the constitutional rights of an
accused, and should not depend upon his demand therefor.” Burlison v. State, 501 S.W.2d 801, 804
(Tenn. 1973). Although the federal constitution’s requirement of unanimity among jurors has not
been imposed on the states through the Fourteenth Amendment, “there should be no question that
the unanimity of twelve jurors is required in criminal cases under our state constitution.” State v.
Brown, 823 S.W.2d 576, 583 (Tenn. Crim. App. 1991). The Tennessee Supreme Court held that
“where the indictment charges that sex crimes occurred over a span of time, evidence of unlawful
sexual contact between the defendant and the victim allegedly occurring during the time charged in
the indictment is admissible,” but, at the close of proof, the State must elect the facts upon which it
is relying for conviction. State v. Rickman, 876 S.W.2d 824, 828 (Tenn. 1994).

       In cases such as this one, where the victim has testified to several incidents of sexual conduct
beyond that charged in the indictment, the State “must either limit the testimony of prosecuting
witnesses to a single event, or prepare the case so that an election can be made before the matter is
submitted to the jury to decide.” Kendrick, 38 S.W.3d at 568 (citing Shelton, 851 S.W.2d at 137).
The requirement of election and a jury unanimity instruction exists even though the defendant has
not requested them. Burlison, 501 S.W.2d at 804. Failure of the State to elect offenses when the
proof requires an election is considered an error of constitutional magnitude and will result in
reversal of the conviction, absent the error being harmless beyond a reasonable doubt. See State v.
Adams, 24 S.W.3d 289, 294 (Tenn. 2000); Shelton, 851 S.W.2d at 138-39.

        Recognizing the practical difficulties in applying the election requirement in cases involving
child sexual abuse, the Tennessee Supreme Court provided the following guidelines:

                By insisting upon election, we emphasize that the state is not required to
        identify the particular date of the chosen offense. . . . [S]uch a requirement would
        make impossible the prosecution of criminal acts committed against young children
        who are the frequent victims of cognate crimes and crimes involving the age of
        consent. However, a particular offense can often be identified without a date.

                 If, for example, the evidence indicates various types of abuse, the prosecution
        may identify a particular type of abuse and elect that offense. See e.g., State v. Fears,
        659 S.W.2d 370, 374 (Tenn. Crim. App. 1983). Moreover, when recalling an assault,
        a child may be able to describe unique surroundings or circumstances that help to
        identify an incident. The child may be able to identify an assault with reference to
        a meaningful event in his or her life, such as the beginning of school, a birthday, or
        a relative’s visit. Any description that will identify the prosecuted offense for the
        jury is sufficient. In fulfilling its obligation under Burlison to ensure that an election
        occurs, the trial court should bear in mind that the purpose of election is to ensure


                                                  -16-
       that each juror is considering the same occurrence. If the prosecution cannot identify
       an event for which to ask a conviction, then the court cannot be assured of a
       unanimous decision. . . .

              As noted above, in cases where a specific date cannot be supplied, the jury’s
       consideration must be focused on one or more charged offenses by some effective
       means of election, in order to ensure unanimity on those offenses and no others.

Shelton, 851 S.W.2d at 137-38.

       In Brown, this Court held that an enhanced unanimity instruction is required in certain
instances where the State is required to make an election. Brown, 823 S.W.2d at 583. This Court
held:

       [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 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 assessment of this
       potential would involve consideration of the allegations made and the statutory
       offense charged, as well as the actual evidence presented. Such an assessment is
       needed because not every fact, circumstance or theory of guilt will call for an
       instruction greater than the general one.

Id. “It is only when the evidence can be placed in ‘distinct conceptual groupings,’ of which each
would constitute a crime under the same count, does the concern for unanimity arise.” Id. at 583-84
(citing United States v. Gipson, 553 F.2d 453, 458 (5th Cir. 1977)). However, the Tennessee
Supreme Court held that an enhanced unanimity instruction “is not required even in cases where the
proof does indicate more than one offense. The election requirement itself alleviates any unanimity
concerns. Those states which require an enhanced unanimity instruction appear to rely upon it
instead of, not in addition to, an election requirement.” Johnson, 53 S.W.3d at 635 (citing State v.
Greene, 623 A.2d 1342, 1344-45 (N.H. 1993); State v. Weaver, 964 P.2d 713, 720 (Mont. 1998)).
Therefore, although the Supreme Court did not overrule this Court’s holding in Brown, the Johnson
Court clearly held that an enhanced unanimity instruction is not required because the election
requirement alleviates any unanimity concerns. Id.

         In this case, the Defendant was charged with two counts of child rape and one count of
aggravated sexual battery. The indictment, which the State read to the jury at the beginning of the
trial, set forth the charges as follows:

       COUNT 1:
       [D]uring the years 1997 and 1998, and in the State and County aforesaid, [the
       Defendant] unlawfully, feloniously, intentionally and knowingly did have sexual


                                                -17-
       contact with [A.G.], to-wit: by touching the said [A.G.’s] penis, for the purpose of
       sexual arousal and gratification, the said [A.G.] being a person under thirteen (13)
       years of age, in violation of TCA 39-13-504 and against the peace and dignity of the
       State of Tennessee. . . .

       COUNT 2:
       [D]uring the years 1997 and 1998, and in the State and County aforesaid, [the
       Defendant] unlawfully, intentionally, feloniously and knowingly did sexually
       penetrate [A.G.], to-wit: fellatio, by inserting his penis in victim’s mouth, the said
       [A.G.] being a person less than thirteen years of age, in violation of TCA 39-13-522
       and against the peace and dignity of the State of Tennessee. . . .

       COUNT 3:
       [D]uring the years 1997 and 1998, and in the State and County aforesaid, [the
       Defendant] unlawfully, intentionally, feloniously and knowingly did sexually
       penetrate [A.G.], to-wit: fellatio, by inserting the said victim’s penis in his mouth, the
       said [A.G.] being a person less than thirteen years of age, in violation of TCA 39-13-
       522 and against the peace and dignity of the State of Tennessee. . . .

A.G. testified that, on one occasion when the Defendant was baby-sitting him, the Defendant reached
under A.G.’s pajamas and touched his “private part” with his hand when they were in his bedroom,
which he shared with his brother. He stated that his parents were at home when the Defendant first
touched his penis. A.G. said that the Defendant touched his penis on another occasion when his
parents were at “Ms. Sherry’s house” across the street. He testified that, while his parents were
across the street at “Ms. Sherry’s house” and his brother was on the floor of the bedroom playing
video games, the Defendant, who was on the bed with A.G., reached under A.G.’s pajamas and
touched his penis. A.G. testified that, on a different occasion in his sister’s room, the Defendant put
his mouth on A.G.’s “front private part.” He stated that, on another occasion in his sister’s room,
the Defendant made A.G. put his mouth on the Defendant’s penis and touch the Defendant’s penis
with his hand. A.G. testified that he could not remember how many times the Defendant touched
his penis or he touched the Defendant’s penis. Agent Ellis testified that the Defendant admitted that
he performed oral sex on A.G. twice and that A.G. performed oral sex on him once. In the
Defendant’s written statement, the Defendant admitted to having sexual contact with A.G. two to
three times.

        At the close of the State’s case-in-chief, the State failed to elect which set of circumstances
it was relying upon to support each charge. However, for the aggravated sexual battery charge in the
indictment, the State argued in its closing argument that the Defendant reached under A.G.’s pajamas
and touched A.G.’s penis while A.G.’s parents were at Sherry Dowker’s house. The State argued
as follows:

               What was [A.G.] sure of? He was sure he was wearing his pajamas. He had
       his PJ’s on. He was sure the door was closed because the boys like it cool and he


                                                 -18-
       was sure on one of these occasions his Mom and Dad were at Ms. Sherry’s.
       Absolutely, a bolt of lightning, [the Defendant] remembers the Mrs. Sherry thing too?
       Does that corroborate [A.G.]? Yes, the State submits that it does.

              He was sure that his front private part was felt under his pajama bottoms and
       he was sure that he put his mouth on [the Defendant’s] penis and he was sure [the
       Defendant] put his mouth on [A.G.’s] penis.

The trial court gave the following jury instruction regarding unanimity of verdicts:

                   MULTIPLE COUNTS: FINDING ON EACH REQUIRED
               The crime charged in each count of the indictment is a separate and distinct
       offense. You must decide each charge separately on the evidence and the law
       applicable to it. The defendant may be found guilty or not guilty on any or all of the
       offenses charged. Your finding as to each crime charged must be stated in your
       verdict. . . .

                                      JURY: DELIBERATION
               The verdict must represent the considered judgment of each juror. In order
       to return a verdict, it is necessary that each juror agree thereto. Your verdict must be
       unanimous. . . .

The trial court did not give any further instructions regarding the election of offenses.

         The State argues that no election issue arose as to the two child rape counts because A.G.
testified about only two instances of child rape. The Defendant contends that A.G. testified about
three incidents of child rape, thereby requiring the State to elect which incidents should be
considered for the two child rape charges. After thoroughly reviewing the record, we agree with the
State that no election issue arose as to the two child rape counts.

         The Defendant contends that A.G. testified about three incidents of child rape. However, a
careful examination of the transcript shows that A.G. only testified about two incidents of child rape.
A.G. testified about two incidents of child rape on direct examination: (1) the Defendant put his
mouth on A.G.’s penis in A.G.’s sister’s room; and (2) the Defendant made A.G. put the Defendant’s
penis in his mouth while they were in A.G.’s sister’s room. On cross-examination, A.G. confirmed
that he told the Grand Jury that the Defendant put his mouth on A.G.’s private part and that A.G. put
his mouth on the Defendant’s private part. Immediately following the questions regarding what A.G.
told the Grand Jury about the oral sex incidents, defense counsel further asked A.G., “Could you tell
me again what you said happened when your parents were at Ms. Sherry’s?” (emphasis added).
A.G. replied that he and the Defendant went into A.G.’s sister’s room “[a]nd then he put his mouth
on my private part.” We conclude that this testimony does not describe a third incident of child rape,
rather it is a clarification of A.G.’s earlier testimony regarding the two incidents of child rape.
Although he did not testify about this detail on direct examination, A.G. clarified that, when the


                                                 -19-
Defendant put his mouth on A.G.’s penis, his parents were at “Ms. Sherry’s house.”

        The Defendant also contends that Agent Ellis’ testimony regarding the Defendant’s
admission that he performed oral sex on A.G. twice and that A.G. performed oral sex on him once
created an election problem. However, Agent Ellis’ testimony did not contain specific details about
the incidents of child rape like the testimony of A.G., and the testimony only regarded the
Defendant’s admission to performing these acts. A.G. specifically detailed each incident of child
rape in accord with the two charges in the indictment. The charges in the indictment, which were
read to the jury, specifically set forth the type of child rape charged in each count. The indictment
states that, in Count 2, the Defendant penetrated the victim by “fellatio, by inserting his penis in
victim’s mouth,” and, in Count 3, the Defendant penetrated the victim by “fellatio, by inserting the
said victim’s penis in his mouth.” Therefore, we conclude that no election issue arose regarding the
two counts for child rape because A.G.’s testimony about the two incidents of child rape
corresponded exactly with the charges in the indictment, thereby ensuring unanimous verdicts on
those counts. Thus, we conclude that the State was not required to elect offenses for the two
aggravated sexual battery convictions under counts two and three, because these convictions were
clearly based on the testimony of the two incidents involving oral sexual contact.

         As for the aggravated sexual battery charge in Count 1, we conclude that the trial court erred
by failing to require the State to elect which incident of sexual touching should be considered by the
jury in deliberating on that charge. A.G. testified specifically about two incidents of sexual touching
by the Defendant, and he testified generally about one incident of sexual touching. The State did not
limit A.G.’s testimony to the offenses charged in the indictment. Instead, the State allowed A.G. to
testify to more than one act of aggravated sexual battery. While the State claims that it “effectively
elected” during its closing argument which incident of sexual touching it intended to rely upon for
the aggravated sexual battery charge, we respectfully disagree. The State’s closing argument did not
explicitly elect one of the three incidents of sexual touching described by A.G.; rather, the State
merely described details of A.G.’s testimony pertaining to two similar incidents of sexual touching
and did not even mention the requirement of election of offenses.4 The trial court failed to take
precautions to ensure that the jury deliberated over the particular charged offense and instead created
the possibility of a “patchwork verdict” based on the different incidents of sexual touching described
by A.G. See Kendrick, 38 S.W.3d at 568. The trial court should have required the State to elect
which incident it wanted to be considered for that count in the indictment.

       Having found error, we now must conduct a harmless error analysis. The failure to elect can
be harmless beyond a reasonable doubt in an appropriate case. Adams, 24 S.W.3d at 294; Shelton,
851 S.W.2d at 138-39. That is, the evidence may be of such a quality that no real risk of a patchwork
or “grab bag” verdict exists. Shelton, 851 S.W.2d at 138. After thoroughly reviewing the record,
we conclude that the trial court’s error in failing to require the State to elect the offense for the


         4
          W e note that, even if the State had elected during its closing arguments, this election of offenses would not
have satisfied the requirements of Burlison, 501 S.W .2d at 804. State v. Ellis, 89 S.W .3d 584, 594 n.2 (Tenn. Crim.
App. 2000). The Ellis Court noted that any error in the timing of the State’s election may be harmless. Id.

                                                         -20-
aggravated sexual battery charge was not harmless. A.G. testified that, on one occasion when the
Defendant was baby-sitting him, the Defendant reached under A.G.’s pajamas and touched his
“private part” with his hand when they were in his bedroom and his parents were at home. A.G.
testified that, on another occasion, the Defendant touched his penis under his pajamas while they
were in his bedroom, his brother was playing Nintendo on the floor, and his parents were at “Ms.
Sherry’s house.” The jury may have used either of these incidents to convict the Defendant of
aggravated sexual battery. By not requiring the State to elect which incident of sexual touching it
intended the jury to consider for the aggravated sexual battery charge, the trial court created a serious
risk of a patchwork or “grab bag” verdict on that charge. Accordingly, we reverse the Defendant’s
conviction and sentence for aggravated sexual battery in Count 1.

                           C. Admissibility of Uncharged Conduct Testimony

        The Defendant contends that the trial court erred under Tennessee Rule of Evidence 404(b)
by admitting Agent Ellis’ and A.G.’s testimony regarding uncharged conduct. The Defendant argues
that Agent Ellis’ testimony regarding the Defendant’s admission that he performed oral sex on A.G.
twice and that A.G. performed oral sex on the Defendant once was improper under Tennessee Rule
of Evidence 404(b) because it was evidence of uncharged conduct. Likewise, the Defendant argues
that the trial court erred by allowing A.G. to testify to six counts of sexual abuse instead of just three
because that was evidence of uncharged conduct. After thoroughly reviewing the record, we
conclude that this issue has been waived because the Defendant failed to object to this testimony at
trial and failed to include this issue in his motion for new trial. Tenn. R. App. P. 3(e) (stating that
“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”); Tenn. R. App. P. 36(a) (“Nothing in this rule shall
be construed as requiring relief be granted to a party . . . who failed to take whatever action was
reasonably available to prevent or nullify the harmful effect of an error”); see State v. Martin, 940
S.W.2d 567, 569 (Tenn. 1997) (holding that a defendant relinquishes the right to argue on appeal any
issues that should have been presented in a motion for new trial). Therefore, we conclude that this
issue is without merit.5

                                 D. Admissibility of Agent Ellis’ Testimony

        The Defendant next contends that the trial court erred by permitting Agent Ellis to testify
about a recorded recollection under Tennessee Rule of Evidence 803(5). The Defendant argues that
Agent Ellis’ testimony was inadmissible as a present recollection refreshed under Tennessee Rule
of Evidence 612. In his appellate brief, the Defendant contends that Agent Ellis’ testimony mirrored


         5
          W e note that, even if this issue was not waived, it is without merit. W here an indictment charges that sex
crimes occurred over a span of time, evidence of unlawful sexual contact between the defendant and the victim allegedly
occurring during the time charged in the indictment is admissible, but, at the close of proof, the State must elect the facts
upon which it is relying for conviction. Rickman, 876 S.W .2d at 828.

                                                           -21-
his written “investigative report,” so “he did not have an independent recollection refreshed of [the
Defendant] admitting the details but only read and memorized this investigative report for his
testimony.” The State argues that Agent Ellis’ testimony was not present recollection refreshed, so
the trial court did not abuse its discretion by admitting his testimony. After thoroughly reviewing
the record, we agree with the State.

       During Agent Ellis’ testimony on direct examination, the Defendant’s counsel objected to
Agent Ellis’ testimony about the Defendant’s statements with regard to sexual contact with the
victim. The following exchange occurred at a bench conference outside the hearing of the jury:

       MS. DENSON: Your Honor, it appears to me that he is reading directly from his
       notes. It sounds like this is past recollection recorded type situation? That was my
       objection as to foundation. I would like, if anything, is to establish his past
       recollection recorded?”

       THE COURT: He doesn’t have anything in front of him. He is being responsive to
       the questions that are asked. He doesn’t have anything in front of him. He is not
       reading anything. Whether he is reciting from memory or not, I have no way of
       knowing, but he is not reading anything? I don’t understand the basis of your
       objection? What are you saying that he is doing that he shouldn’t be doing?

       MS. DENSON: I am saying that he is testifying not from his memory of the events
       that happened, his independent memory; he’s testifying based . . . only on his notes?

       THE COURT: That is something that you can go into him with on cross-
       examination, but so far he’s been responsive to the questions that are asked and so,
       your objection is overruled now. If you want to question him on cross-examination
       about what you contend he is doing, you are free to do that, but until he does
       something that makes me believe he’s reading from a prepared script, he [is] just
       responding to questions?

On cross-examination, Agent Ellis admitted to preparing for his testimony by reading the
investigative report that he made following the interviews with the Defendant. Agent Ellis stated
that, without the investigative report, he would not have been able to recall specific details about
what the Defendant said during the interviews. The agent admitted that he read the investigative
report prior to trial to refresh his memory about what the Defendant said during the interviews.

       In Tennessee, admissibility of evidence is within the sound discretion of the trial judge. State
v. Saylor, 117 S.W.3d 239, 247 (Tenn. 2003). In making these decisions, the trial court must
consider “the questions of fact that the jury will have to consider in determining the accused’s guilt
as well as other evidence that has been introduced during the course of the trial.” State v.
Williamson, 919 S.W.2d 69, 78 (Tenn. Crim. App. 1995). We will only disturb an evidentiary ruling
on appeal when it appears that the trial judge arbitrarily exercised his discretion. State v. Baker, 785


                                                 -22-
S.W.2d 132, 134 (Tenn. Crim. App. 1989).

        Tennessee Rules of Evidence 612 and 613 establish the circumstances and procedures for
refreshing the memory of a witness using a prior statement of the witness. Tennessee Rule of
Evidence 612 explains the procedures when a witness uses a writing to refresh his or her memory:

       If a witness uses a writing while testifying to refresh memory for the purpose of
       testifying, an adverse party is entitled to inspect it, to cross-examine the witness
       thereon, and to introduce in evidence those portions which relate to the testimony of
       the witness. If it is claimed that the writing contains matters not related to the subject
       matter of the testimony, the court shall examine the writing in camera, excise any
       portions not so related, and order delivery of the remainder to the party entitled
       thereto. Any portion withheld over objections shall be preserved and made available
       to the appellate court in the event of appeal. If a writing is not produced or delivered
       pursuant to order under this rule, the court shall make any order justice requires; in
       criminal cases when the prosecution elects not to comply, the order shall be one
       striking the testimony or, if the court in its discretion determines that the interests of
       justice so require, declaring a mistrial.

The Advisory Commission Comment to Rule 612 explains the foundation necessary and procedure
to be used when the memory of a witness is refreshed by a writing:

       Only if a witness’s memory requires refreshing should a writing be used by the
       witness. The direct examiner should lay a foundation for necessity, show the witness
       the writing, take back the writing, and ask the witness to testify from refreshed
       memory.

Tenn. R. Evid. 612, Advisory Comm’n Cmt. Tennessee Rule of Evidence 612 only applies if a
witness uses a writing while testifying. “By its express terms, Rule 612 pertains only when a witness
uses a writing ‘while testifying’ to refresh memory for the purpose of testifying. Rule 612 does not
apply to a writing read before trial if the writing is not also used while the witness is on the stand.”
Neil P. Cohen, et al., Tennessee Law of Evidence, § 6.12[3][b] (4th ed. 2000).

       Tennessee Rule of Evidence 613 governs the use and admissibility of the prior statement of
a witness. Rule 613 provides in pertinent part:

       (a) Examining Witness Concerning Prior Statement. In examining a witness
       concerning a prior statement made by the witness, whether written or not, the
       statement need not be shown nor its contents disclosed to the witness at that time, but
       on request the same shall be shown or disclosed to opposing counsel.

       (b) Extrinsic Evidence of Prior Inconsistent Statement of Witness. Extrinsic evidence
       of a prior inconsistent statement by a witness is not admissible unless the witness is


                                                 -23-
        afforded an opportunity to explain or deny the same and the opposite party is
        afforded an opportunity to interrogate the witness thereon, or the interests of justice
        otherwise require.

Tennessee Rule of Evidence 803(5), an exception to the hearsay rule, explains the limited
circumstances under which the prior statement may be entered as an exhibit in a trial:

        Recorded Recollection. A memorandum or record concerning a matter about which
        a witness once had knowledge but now has insufficient recollection to enable the
        witness to testify fully and accurately, shown to have been made or adopted by the
        witness when the matter was fresh in the witness’s memory and to reflect that
        knowledge correctly. If admitted, the memorandum or record may be read into
        evidence but may not itself be received as an exhibit unless offered by an adverse
        party.

The Advisory Commission Comment to Tennessee Rule of Evidence 803(5) explains the showing
which must be made before the prior statement of a witness may be used to refresh the recollection
of the witness at trial:

        The proposed rule recognizes the traditional Tennessee hearsay exception for past
        recollection recorded, but it expands common law in two respects. It allows the
        admissibility of the contents of a document reflecting past recollection recorded even
        though the witness has some recollection of the recorded facts but not enough to
        testify “fully and accurately.” Second, it permits the witness to adopt a record made
        by another not acting under the witness’s supervision. The safeguard is the
        requirement of adoption at the time when the witness could vouch for the document’s
        correctness.

Tenn. R. Evid. 803(5), Advisory Comm’n Cmt. For past recollection recorded under Rule 803(5),
“the witness’s memory is effectively useless; the witness does not remember the event and,
accordingly, cannot testify from present memory.” Neil P. Cohen, supra, § 8.10[2][c]. In such
cases, “Rule 803(5) establishes a hearsay exception which admits into evidence a writing made or
adopted by the witness when the matter was fresh in the witness’s memory and that describes the
event at issue.” Id.

        In this case, Agent Ellis read the investigative report before he testified at the trial to prepare
for his testimony, and the report was never used while the agent was on the stand. Therefore,
Tennessee Rule of Evidence 612 was not applicable. Moreover, Agent Ellis’ testimony was not past
recollection recorded because the agent did not need to have his memory refreshed with a prior
memorandum or record during his testimony. The State did not seek to read the investigative report
into evidence under Rule 803(5), rather Agent Ellis testified from memory about what the Defendant
said during the interviews in Florida. Therefore, Tennessee Rule of Evidence 803(5) was not
applicable. Accordingly, we conclude that the trial court did not abuse its discretion by admitting


                                                   -24-
Agent Ellis’ testimony. This issue is without merit.

                   E. The Missing Prior Recorded Statement of the Victim

       The Defendant next contends that the trial court erred in refusing to prohibit testimony of the
victim under the balancing test of State v. Ferguson, 2 S.W.3d 912 (Tenn. 1999), and under
Tennessee Rule of Criminal Procedure 26.2(e), because DCS lost the victim’s prior taped statements
and the State was unable to provide them to the Defendant during discovery. Prior to trial, the
Defendant, relying on Ferguson, filed a motion to compel discovery of the victim’s prior recorded
statement to DCS or to suppress the victim’s testimony if such discovery was not provided. In his
motion, the Defendant contended the following:

       In the present case, the missing evidence is the recorded and transcribed interview of
       the victim by the Department of Children’s services, which likely contained denials
       of sexual contact by the child. Denials of sexual contact would be valuable
       impeachment evidence, which would be material to preparation of the defense and
       may lead to entertain a reasonable doubt about [the Defendant’s] guilt.

The Defendant argued that the State should have made efforts to protect the prior recorded statement
of the victim because “in sexual abuses cases where there is no physical or eyewitness testimony to
the abuse, other than the alleged victim, the prior statements of the alleged victims are of utmost
importance.” He further contended that allowing the victim to testify despite the State’s loss of the
victim’s prior recorded statement “would result in a fundamentally unfair trial for the [D]efendant.”
Therefore, the Defendant requested that the trial court “either dismiss Counts 3, 4, and 5 of the
indictment, or suppress testimony of the alleged victim A.G. At the very least the court should
provide an instruction as set forth in Ferguson.”

        The day before the Defendant’s trial began, the trial court conducted a hearing on the
Defendant’s pre-trial motions. The State acknowledged that the victim’s prior recorded statement
to a DCS case worker had been lost. The State introduced a copy of an examination report of A.G.
from the Our Kids Center dated August 3, 1998, into evidence. The report stated, in pertinent part,
as follows:

       [A.G.] was referred by Deanna Groves [of DCS] on 7/24/98. Ms. Groves reports that
       the alleged perpetrator has admitted to three episodes of penile anal penetration with
       ejaculation. The last known sexual contact was over a week ago. She further reports
       that [A.G.] has been interviewed by the Department of Children’s Services and has
       not disclosed much detail about the sexual contact. . . .

The State then introduced an affidavit from Amelia B. Wallace of DCS into evidence. The affidavit
stated the following:

               I, Amelia B. Wallace, being duly sworn doth sayeth as follows:


                                                -25-
                That the [A.G.] Child Protective Services file concerning the sexual abuse of
        [A.G.] by [the Defendant], is not to be found in the Department of Children’s
        Services archives. This was a July 1998 investigation, which began as a referral
        describing statements made by [the Defendant] while he was incarcerated in a
        Tallahassee jail. The entire file was lost and all efforts to find it have failed. This
        file was closed after [the Defendant] was indicated as a sexual perpetrator. Some
        writing has been replicated from general information in other victim records,
        computer print-offs, and forms.

               This file may have been lost when they [sic] were in storage at the
        Department of Human Services awaiting transfer to the Department of Children’s
        Services. Central Personnel from the Department of Children’s Services mistakenly
        moved all files causing them to be placed in a confusing lack of order. This occurred
        in 1999.

              An effort to place these files in a semblance of order over a period of many
        months has had limited success.

                After this event many files have not been found. Another problem arose
        when support staff were allowed to file files without proper training. There is no
        central file clerk. The filing system has moved from a file tabbed with family name,
        then later by children’s name, now back in the family names once again.

                Some files are removed from our office for audit purposes, appeals, criminal
        court cases, criminal investigations, complaints from central office, CART (Child
        Abuse Review Team) and CPIT (Child Protective Investigation Team) meetings.

                I have exhausted all efforts to find this file.

The State told the trial court that it contacted Deanna Groves, who was not available to testify, and
she stated that she did not have any recollection of the interview with A.G. The State admitted “that
there was negligence involved here on the part of the Department of Children’s Services. . . . The
State would submit that through mere simple negligence, this huge bumbling dinosaur has lost its
file among what I suppose are thousands of files . . . that were moved . . . .” The State requested that,
instead of suppressing A.G.’s testimony, the trial court craft a jury instruction that “basically says
the Department of Children Services was negligent. As a result of their negligence, the file was lost.
As a result of the file being lost, an audio tape recording apparently was lost, as well as the transcript.
And let the jury decide . . . how significant that is?”

       The trial court found that “[t]he sufficiency of other evidence cannot be considered by this
Court at this time because I haven’t heard it, so we’ll come back to this motion after we exhaust
everything that there is for this Court to consider.” Following the presentation of evidence at the
Defendant’s trial, the trial court found that:


                                                   -26-
         [A]fter hearing the evidence to this point, the Court is now capable of considering the
         factor, the Ferguson factor of the sufficiency of the evidence, along with the other
         factors that the Court has already made reference to. And I [am] denying the
         Defendant’s motion to dismiss, but I am going to fashion an instruction to the jury
         about the fact that the file was lost.

The trial court instructed the jury regarding the lost file as follows:

                               DUTY TO PRESERVE EVIDENCE
                 The State has a duty to gather, preserve, and produce at trial evidence which
         may possess exculpatory value. Exculpatory evidence is evidence which is favorable
         to the defendant.

                  In this case, the Department of Children’s Services has acknowledged that it
         lost its file which contained information about the alleged victim, including an
         interview with the alleged victim and statements made by him about this case.

                 If, after considering all of the proof, you find that the State failed to gather or
         preserve evidence, the contents or qualities of which are an issue and the production
         of which would more probably than not be of benefit to the defendant, you may infer
         that the absent evidence would be favorable to the defendant.

                                               1. State v. Ferguson

        The Due Process Clause of the Fourteenth Amendment to the United States Constitution
provides every defendant the right to a fair trial.6 To facilitate this right, a defendant has a
constitutionally protected privilege to request and obtain from the prosecution evidence that is either
material to guilt or relevant to punishment. Brady v. Maryland, 373 U.S. 83, 87 (1963). Further, the
prosecution has a duty to turn over exculpatory evidence that would raise a reasonable doubt about
a defendant’s guilt. United States v. Agurs, 427 U.S. 97, 110-11 (1976). The evidence in both
Brady and Agurs was “plainly exculpatory” evidence, which differs from the evidence in the case
under submission, which is “allegedly exculpatory.”

        The Tennessee Supreme Court adopted a balancing approach to determine the consequences
that flow from the State’s loss or destruction of allegedly exculpatory evidence in Ferguson, 2
S.W.3d 912. In Ferguson, the Court held that the first step in the balancing analysis is to “determine
whether the State had a duty to preserve the evidence. Generally speaking, the State has a duty to
preserve all evidence subject to discovery and inspection under Tenn. R. Crim. P. 16, or other
applicable law.” Id. at 917 (citing Brady, 373 U.S. at 87; Agurs, 427 U.S. at 110-11). The Court


         6
           “As a general rule, . . . a trial lacks fundamental fairness where there are errors which call into question the
reliability of the outcome.” Ferguson, 2 S.W .3d at 914, n.3 (citing Lofton v. State, 898 S.W .2d 246, 248 (Tenn. Crim.
App. 1994); W atkins v. State, 393 S.W.2d 141, 144 (Tenn. 1965); Betts v. Brady, 316 U.S. 455, 462 (1942)).

                                                          -27-
clarified the boundaries of the State’s duty to preserve evidence by quoting California v. Trombetta,
467 U.S. 479 (1984), which held:

         “Whatever duty the Constitution imposes on the States to preserve evidence, that
         duty must be limited to evidence that might be expected to play a significant role in
         the suspect’s defense. To meet this standard of constitutional materiality, evidence
         must both possess an exculpatory value that was apparent before the evidence was
         destroyed, and be of such a nature that the Defendant would be unable to obtain
         comparable evidence by other reasonably available means.”

Ferguson, 2 S.W.3d at 917 (quoting Trombetta, 467 U.S. at 488-89).

        The Court explained that if the proof demonstrates the existence of a duty to preserve the
evidence and demonstrates that the State failed in that duty, “the analysis moves to considerations
of several factors which guide the decision regarding the consequences of the breach.” Id.
Accordingly, those factors include: “(1) the degree of negligence involved;7 (2) the significance of
the destroyed evidence, considered in light of the probative value and reliability of secondary or
substitute evidence that remains available; and (3) the sufficiency of the other evidence used at trial
to support the conviction.” Ferguson, 2 S.W.3d at 917. “If, after considering all the factors, the trial
judge concludes that a trial without the missing evidence would not be fundamentally fair, then the
trial court may dismiss the charges.” Id. However, dismissal is but one of the trial judge’s options.
Id. “The trial judge may craft such orders as may be appropriate to protect the defendant’s fair trial
rights. As an example, the trial judge may determine, under the facts and circumstances of the case,
that the defendant’s rights would best be protected by a jury instruction.” Id. The Ferguson Court
suggested the following jury instruction in a case where the State lost or destroyed “allegedly
exculpatory” evidence:

         The State has a duty to gather, preserve, and produce at trial evidence which may
         possess exculpatory value. Such evidence must be of a nature that the defendant
         would be unable to obtain comparable evidence through reasonably available means.
         The State has no duty to gather or indefinitely preserve evidence considered by a
         qualified person to have no exculpatory value, so that an as yet unknown defendant
         may later examine the evidence. If, after considering all of the proof, you find that
         the State failed to gather or preserve evidence, the contents or qualities of which are
         in issue and the production of which would more probably than not be of benefit to
         the defendant, you may infer that the absent evidence would be favorable to the
         defendant.

Id. at 917, n.11 (citing Trombetta, 467 U.S. at 489; State v. Willits, 393 P.2d 274, 276 (Ariz. 1964)).



         7
            This factor presumes negligence in the loss or destruction of the evidence. Should the proof show bad
faith, the trial judge may consider such action as may be necessary to protect the defendant’s fair trial rights.

                                                        -28-
         In this case, we must first determine whether the State had a duty to preserve A.G.’s prior
recorded statement to DCS and whether the State failed in that duty. According to the Our Kids
Center examination report, “[A.G.] has been interviewed by the Department of Children’s Services
and has not disclosed much detail about the sexual contact.” Therefore, the lost tape recording and
transcript of A.G.’s statement to DCS may have had exculpatory value because, in the statement,
A.G. apparently did not disclose “much detail” about the abuse. Depending upon what A.G. said
in the statement, the Defendant may have used the prior recorded statement to impeach A.G. during
cross-examination. Further, the statement could have been material to the preparation of the
Defendant’s defense. Thus, the State had a duty to preserve A.G.’s prior recorded statement to DCS
as “potentially exculpatory evidence.” Ferguson, 2 S.W.3d at 918. By losing A.G.’s file, the State
breached this duty. Accordingly, we must consider the three factors set forth in Ferguson to decide
whether the trial court erred in failing to suppress A.G.’s testimony and instead crafting a jury
instruction regarding the missing evidence.

         The first factor to consider in determining what consequences should flow from the State’s
breach of duty is the degree of negligence involved. Id. at 917. In his appellate brief, the Defendant
contends that “[f]iles were not lost for the four of the five alleged victims that admitted sexual
contact to some extent. The recorded, transcribed interview of the one alleged victim who appears
to have denied sexual contact . . . was ‘lost.’” The Defendant asserts that, while the State may allege
this was simply coincidence, “[c]ircumstantially, the loss of this file appears to be indicative of more
bad faith than coincidence. At a minimum, loss of this file was gross negligence.” We disagree with
the Defendant’s allegations that the loss of A.G.’s file was a result of bad faith or gross negligence.
According to Wallace’s affidavit, A.G.’s file was lost because of a bureaucratic shuffling and moving
of files within DCS. Apparently, DCS workers, including Wallace, conducted an extensive search
for the missing file but failed to find it. Unquestionably, the Defendant has failed to prove that the
State acted in bad faith by losing the evidence. The only conclusion remaining is that the evidence
was negligently lost, and we conclude that the conduct was simple negligence, as opposed to gross
negligence.

        The second factor we must consider addresses the significance of the missing evidence, “in
light of the probative value and reliability of secondary or substitute evidence that remains
available.” Id. In his appellate brief, the Defendant contends that his trial was a credibility contest
between A.G., who testified that the Defendant raped and sexually molested him, and the Defendant,
who denied that he touched A.G. The Defendant asserts that, as a credibility contest, “[t]he
significance of any prior statements by the alleged victim that no sexual contact occurred is
extremely important.” The Defendant further contends that the Our Kids Center examination report
of A.G. was a “weak substitute for the denials and coercive questioning [the Defendant] believe[s]
would have been in the DCS file.”

        We respectfully disagree with the Defendant’s assumptions that the lost statement contained
denials of sexual contact and evidence of coercive questioning by DCS. The only evidence presented
about the contents of the missing file was the Our Kids Center examination report, which stated that
A.G. “has not disclosed much detail about the sexual contact” during a DCS interview. If A.G.


                                                 -29-
stated that the Defendant abused him but did not disclose much detail about the sexual contact in the
missing statement, then the Defendant would have had difficulty using the statement to impeach
A.G. As to the availability of secondary or substitute evidence, the Our Kids Center examination
report of A.G. stated: “When questioned about sexual contact, [A.G.] denied anyone had touched
his private areas.” During cross-examination, A.G. stated that he did not remember going to a
hospital in Nashville after he told his mother about the abuse and did not remember “anybody ever
looking at [him] and asking [him] questions about [the abuse].” Thus, it appears that the Defendant
attempted to impeach A.G. using this prior inconsistent statement in the Our Kids Center
examination report, but he was unsuccessful because A.G. could not recall going to the Our Kids
Center in Nashville. In addition to the questionable impeachment value of A.G.’s missing prior
recorded statement, there was certainly no guarantee that A.G. would have remembered the initial
interview with DCS in light of the fact that he could not remember the examination at the Our Kids
Center. Aside from the possible impeachment of A.G., the missing file did not prevent the
Defendant from presenting a comprehensive defense to the charges alleged in this case. The
Defendant vigorously cross-examined all the State’s witnesses, especially Agents Ellis and
Forrestall, and he presented expert testimony to explain that A.G. may have lied about being sexually
abused and that the Defendant may have been coerced into confessing by the agents’ interrogation
techniques. Therefore, in spite of the unavailability of A.G.’s prior recorded statement, we conclude
that the Defendant presented his defense in as complete a manner as was possible without the
missing evidence.

        The third factor to consider is the sufficiency of the other evidence used at trial to support
the conviction. Id. As explained above, the evidence was sufficient to support the Defendant’s
convictions of aggravated sexual battery. A.G. testified that the Defendant touched his penis under
his pajamas twice. A.G. also testified that the Defendant performed oral sex on him in his sister’s
room and that A.G. performed oral sex on the Defendant in his sister’s room. The Defendant
admitted to Agent Ellis that he performed oral sex on A.G. twice and that A.G. performed oral sex
on him once. In the Defendant’s written confession, he admitted to having sexual contact with A.G.
two to three times. Thus, the evidence presented was sufficient, as a matter of law, for conviction.

        As a remedy for the missing prior recorded statement of the victim, the trial court gave an
instruction to the jury about the missing file. The trial court’s instruction was almost identical to the
instruction suggested in Ferguson. Id. at 917, n.11. We conclude that, under the facts and
circumstances of this case, the trial court’s jury instruction protected the Defendant’s right to a fair
trial. Therefore, we conclude that the Defendant was not hindered in the full and complete
exposition of his theory of defense to the jury. We conclude that the Defendant received a
fundamentally fair trial and that he experienced no measurable disadvantage because of the missing
prior recorded statement of the victim. The Defendant is not entitled to relief on this issue.

                         2. Tennessee Rule of Criminal Procedure 26.2

      In a related issue, the Defendant contends that the State violated Tennessee Rule Criminal
Procedure 26.2 when it failed to produce A.G.’s prior recorded statement to DCS and that the trial


                                                  -30-
court “should have declared a mistrial or stricken [A.G.’s] testimony from the record. . . .” The State
asserts that a mistrial was not warranted under Rule 26.2 because there was no evidence that the
State “elected” not to comply. We agree with the State.

        Tennessee Rule of Criminal Procedure 26.2 states in pertinent part as follows:

        (a) Motion for Production. After a witness other than the defendant has testified on
        direct examination, the trial court, on motion of a party who did not call the witness,
        shall order the attorney for the state or the defendant and the defendant’s attorney, as
        the case may be, to produce, for the examination and use of the moving party, any
        statement of the witness that is in their possession and that relates to the subject
        matter concerning which the witness has testified. . . .

        (e) Sanction for Failure to Produce Statement. If the other party elects not to comply
        with an order to deliver a statement to the moving party, the court shall order that the
        testimony of the witness be stricken from the record and that the trial proceed, or, if
        it is the attorney for the state who elects not to comply, shall declare a mistrial if
        required by the interest of justice. . . .

The language of Rule 26.2(e) provides sanctions when the other party elects not to comply with an
order to deliver a statement to the moving party. See State v. Gregory Scott Payne, No. M2000-
02900-CCA-R3-CD, 2002 WL 799704, at *11 (Tenn. Crim. App., at Nashville, April 30, 2002)
perm. app. denied (Tenn. Oct. 21, 2002).

        In this case, Wallace’s affidavit stated that A.G.’s file containing his prior recorded statement
to DCS had been lost due to the bureaucratic shuffling and moving of files and that an extensive
search for the file failed. Therefore, there was no evidence that the State “elected” not to comply
with Tennessee Rule of Criminal Procedure 26.2 or that the State intentionally misplaced the file.
The State could not comply with Rule 26.2 because the file was lost. Accordingly, we conclude that
a mistrial was not warranted under Rule 26.2. This issue is without merit.

                                  F. Agent Ellis’ Destroyed Notes

         The Defendant next contends that the State failed to disclose that Agent Ellis had prepared
notes about the Defendant’s statements made during the interviews in Florida, which were the basis
for his investigative report. The Defendant asserts that the State’s failure to preserve these notes and
provide them to the defense was a discovery violation because “these notes were direct evidence of
Defendant’s prior statements and investigative notes from law enforcement officers.” The Defendant
further claims that, had he known of the prior existence of these notes, he would have brought a
motion under Ferguson. The State contends that this issue was waived because the Defendant failed
to object to the unavailability of the notes and to file a motion under Ferguson to exclude Agent
Ellis’ testimony. The State further argues that, even if this issue were not waived, the destroyed
notes would not have been exculpatory; therefore, under Ferguson, the State had no duty to preserve


                                                  -31-
the notes.

        The Defendant filed a motion to suppress his handwritten and oral statements about sexually
abusing A.G. that he made to Agents Ellis and Forrestall during the Florida interviews. The
Defendant argued in the motion that his statements should be suppressed because they were
involuntary, relying upon State v. Phillips, 30 S.W.3d 372 (Tenn. Crim. App. 2000). The trial court
denied the motion to suppress, ruling that “after considering the totality of the circumstances, [the
Defendant’s statement was given] voluntarily and he knew what he was doing and it was a free act
on his part. He freely admitted that he was Mirandized initially. He was re-Mirandized, [and] he
signed the forms.” At trial, Agent Ellis testified that he based his testimony upon the investigative
reports he reviewed prior to testifying, and he made the investigative reports from his handwritten
notes, which “were shredded after we thought the case had been resolved.”

        While the Defendant raised this issue in his motion for a new trial, he never objected at trial
or at the suppression hearing to Agent Ellis’ testimony based upon a discovery violation or on
Ferguson grounds. After thoroughly reviewing the record, we conclude that the Defendant had
ample opportunity to discover, before the trial began, the fact that Agent Ellis had shredded the notes
that were the basis of his investigative reports. The Defendant should have noticed prior to trial that
Agent Ellis’ notes from the interviews in Florida were not provided by the State during discovery,
and, accordingly, he should have filed a motion to compel discovery of those documents. After
discovering that the notes had been destroyed, the Defendant then should have filed a motion to
suppress Agent Ellis’ testimony based upon Ferguson, as he did for the lost DCS file. Finally, the
Defendant could have objected to Agent Ellis’ testimony based upon a discovery violation or
Ferguson immediately after Agent Ellis testified that he made the investigative reports from his
handwritten notes, which “were shredded after we thought the case had been resolved.” Therefore,
we conclude that this issue is waived because the Defendant failed to object to Agent Ellis’
testimony on this basis before or during his trial. Tenn. R. App. P. 36(a) (“Nothing in this rule shall
be construed as requiring relief be granted to a party . . . who failed to take whatever action was
reasonably available to prevent or nullify the harmful effect of an error”). Thus, we conclude that
this issue is without merit.

                                        G. Bill of Particulars

         The Defendant contends that the State failed to provide a sufficient bill of particulars because
it failed to adequately narrow down the time-frame for the offenses, who was present during the
incidents, and where the incidents took place. The Defendant also claims that the bill of particulars
failed to list a witness who was present during one of the offenses. He contends that, as a result of
the insufficient bill of particulars, he was prejudiced because he was unable to prepare a defense and
avoid prejudicial surprise at trial. Therefore, the Defendant argues that his convictions should be
reversed. The State contends that this issue is without merit because the indictment and the bill of
particulars limited the time of the offenses to a two-year period and any variance with respect to an
additional witness present during the offenses was not material. We agree with the State.



                                                  -32-
       The State filed a bill of particulars which stated, in pertinent part, as follows:

       [Count One]:
       Time: bedtime
       Place: house on May Apple Drive in victim’s bedroom
       Persons present: defendant and victim, defendant was babysitting while parents were
       at Miss Sherry’s
       Sexual acts: defendant put hands down victim’s pants, touched victim’s penis

       [Count Two]:
       Time: bedtime
       Place: victim’s bedroom or victim’s sister’s bedroom on floor
       Persons present: defendant and victim in bedroom, parents and sister were in living
       room at times, sometimes not
       Sexual Acts: defendant put his mouth on victim’s penis

       [Count Three]:
       Time: bedtime
       Place: victim’s bedroom or victim’s sister’s bedroom on floor
       Persons present: defendant and victim, parents were in living room at times,
       sometimes not
       Sexual acts: victim put his mouth on defendant’s penis

The indictment alleged that the Defendant committed the offenses against A.G. “during the years
1997 and 1998. . . .”

        Tennessee Rule of Criminal Procedure 7(c) provides that “[u]pon motion of the defendant
the court may direct the filing of a bill of particulars so as to adequately identify the offense
charged.” Information that may be required in the bill of particulars includes, but is not limited to,
“details as to the nature, time, date, or location of the offense.” State v. Speck, 944 S.W.2d 598, 600
(Tenn. 1997) (citing State v. Byrd, 820 S.W.2d 739, 741-42 (Tenn. 1991)). The purposes of a bill
of particulars are threefold: (1) the bill serves to provide the defendant with sufficient information
about the offenses alleged in the indictment to permit the defendant to prepare a defense; (2) the bill
serves to permit the defendant to avoid prejudicial surprise at trial; and (3) the bill enables the
defendant to preserve a plea of double jeopardy. Byrd, 820 S.W.2d at 741 (citing State v. Hicks, 666
S.W.2d 54, 56 (Tenn. 1984)); State v. Shropshire, 45 S.W.3d 64, 71 (Tenn. Crim. App. 2000); State
v. Gibson, 973 S.W.2d 231, 241 (Tenn. Crim. App. 1997).

         The well-established law in Tennessee does not require an exact date or year of an offense
to be stated in an indictment “unless the date or time ‘is a material ingredient in the offense.’” Byrd,
820 S.W.2d at 740 (quoting Tenn. Code Ann. § 40-13-207). In order to establish the legal
sufficiency of the indictment, “the state need allege only that the offense was committed prior to the
finding of the indictment or presentment.” Id. (citing Tenn. Code Ann. § 40-13-207). In Byrd, the


                                                 -33-
 Tennessee Supreme Court acknowledged “that in many cases of child sexual abuse, the state will
 be unable to offer specific dates on which the alleged offenses occurred. . . . [S]uch inability should
 not necessarily serve as a basis for automatic, outright dismissal of an otherwise legally sufficient
 indictment or presentment.” Byrd, 820 S.W.2d at 741. Instead, “a court faced with this dilemma
 should make every effort to see that the prosecution supplies critical information in the bill of
 particulars.” Id.; see Gibson, 973 S.W.2d at 241.

         If exact dates cannot be provided, the State can provide descriptive information in the bill
 of particulars “that will tend to narrow the time-frame of the indictment. . . .” Byrd, 820 S.W.2d at
 742; see Gibson, 973 S.W.2d at 241. The Byrd Court explained:

         [I]n a child sexual abuse case involving a victim too young to give exact dates, the
         child may be able to define the time of the offense by reference to such memorable
         occasions in a child’s life as birthdays, seasonal celebrations and holidays, the
         beginning or end of the school year, or visitations by relatives.

 Byrd, 820 S.W.2d at 742. Even if the State is unable to give even an approximate time of the alleged
 offense by means of a descriptive reference, “a conviction may nevertheless be affirmed if in the
 course of the trial it does not appear that the defendant’s defense has been hampered by the lack of
 specificity.” Id. However, “a conviction must be reversed if trial testimony establishes that the state
 had in its possession, either actually or constructively, additional information that could have helped
 pinpoint the nature, time, or place of the offense, and withheld that information from the defendant.”
 Id. The Byrd Court explained:

         [I]t is only by post hoc examination of the matter that the court will be able to
         determine whether deficiencies in the bill of particulars prevented the defendant from
         preparing an adequate defense, caused undue and prejudicial surprise, or made
         untenable a later plea of double jeopardy. In other words, the trial court cannot
         determine whether or not the defendant has been hampered in his defense until the
         court knows what proof the state will offer as to the time and place of the offense,
         and how this evidence relates to the actual theory of defense. Generally, none of this
         will be apparent until the case has been tried.

Id. at 741.

        This Court explained, “A variance between an indictment or a subsequent bill of particulars
and the evidence presented at trial is not fatal unless it is both material and prejudicial.” Shropshire,
45 S.W.3d at 71 (citing State v. Moss, 662 S.W.2d 590, 592 (Tenn. 1984); State v. Ealey, 959 S.W.2d
605, 609 (Tenn. Crim. App. 1997)). The variance is not to be regarded as material when the
indictment or the bill of particulars and the proof substantially correspond. Id. (citing State v. Mayes,
854 S.W.2d 638, 640 (Tenn. 1993)). “A material variance occurs only if the prosecutor has attempted
to rely upon theories and evidence at the trial that were not fairly embraced in the allegations made
in the charging instrument.” Id. (citing Mayes, 854 S.W.2d at 640).


                                                  -34-
        In this case, the Defendant contends that the time-frame alleged in the indictment for the
sexual abuse offenses was too open “to allow the [D]efendant to adequately prepare a defense.
Additionally, the bill of particulars for Counts [2 and 3] did not adequately narrow down persons
present or place. Finally, . . . the bill did not list a person [A.G.] testified was in the room when one
sexual contact occurred: [A.G.’s] brother.” The Defendant asserts that, had he known that A.G. was
going to testify that his brother was in the room when the Defendant sexually molested A.G., the
Defendant would have called A.G.’s brother to testify at trial “to substantiate [D]efendant’s claim that
nothing sexual occurred between the [D]efendant and the alleged victim, especially in the presence
of [A.G.’s brother].” Thus, the Defendant argues that the variance between the bill of particulars and
the proof at trial was material and harmed the preparation of his defense, thereby requiring his
conviction in Count 1 to be reversed. We respectfully disagree with the Defendant’s assertions.

         As to the Defendant’s claim that he was unable to adequately prepare a defense due to the lack
of specificity about when the offenses occurred, we conclude that this issue is without merit. The
evidence shows that A.G. could not give specific dates of the sexual abuse or even the months when
the sexual abuse occurred in 1997 and 1998. However, A.G. testified that he believed he was in
either the second or third grade when the Defendant sexually molested him. A.G. stated that a
summer passed between the first and second incidents of abuse, and that the second incident also
happened during the school year. A.G. testified that the third incident involving oral sex with the
Defendant in his sister’s room occurred during the same school year. Furthermore, Agent Ellis
testified that the Defendant admitted to him that he had sexual contact with A.G. in 1997 and 1998.
Although the bill of particulars in this case did not narrow the time-frame of the offenses, the bill gave
specific information about the time of day of the offenses, the place of the offenses, the people present
during the offenses, and the type of sexual contact that occurred during the offenses. The record
shows that the State did not have any additional information in its possession that would have
narrowed the time-frame of the offenses. Further, the Defendant does not allege in his appellate brief
that he was surprised by A.G.’s testimony concerning the time-frame of the offenses. After
thoroughly reviewing the record, we conclude that the Defendant’s defense was not hampered by the
lack of specificity as to the time-frame of the offenses in the bill of particulars. See Byrd, 820 S.W.2d
at 742. This issue is without merit.

        As to the Defendant’s claim regarding the variance between the bill of particulars and the
proof at trial, we conclude that this issue is also without merit. The evidence shows that A.G. testified
that, while his parents were across the street at “Ms. Sherry’s house” and his brother was on the floor
of the bedroom playing video games, the Defendant, who was on the bed with A.G., reached under
A.G.’s pajamas and touched his penis. The bill of particulars did not list A.G.’s brother as a “person
present” during the offense of aggravated sexual battery. However, A.G. testified that, when the
sexual touching occurred, his older brother was paying attention to his video game. Therefore, even
if A.G.’s brother would have testified that he never saw the Defendant sexually abuse A.G., this
testimony would not substantiate the Defendant’s claim that no sexual abuse occurred. Furthermore,
after A.G. testified that his brother was in the room during one incident of sexual abuse, the
Defendant could have requested that A.G.’s brother be added as a witness for the defense. After
thoroughly reviewing the record, we conclude that the bill of particulars and the proof presented at


                                                  -35-
trial substantially corresponded; therefore, the variance between the bill of particulars and the proof
was not material. See Shropshire, 45 S.W.3d at 71. Furthermore, the State did not attempt to rely
upon theories and evidence at the trial that were not fairly embraced in the allegations made in the
indictment or the bill of particulars. Id. Thus, this issue is without merit.

            H. Motion to Suppress the Defendant’s Written and Oral Admissions

        The Defendant next contends that the trial court erred in denying his motion to suppress the
Defendant’s handwritten and oral statements given to Agents Ellis and Forrestall in Florida. The
Defendant asserts that, under State v. Phillips, 30 S.W.3d 372, 377 (Tenn. Crim. App. 2000), the
Defendant’s admissions to the agents “were not made of a free and voluntary will, but were coerced
and involuntary.” He contends that the admission of the statements was highly prejudicial because
they impeached his testimony and provided the only corroboration of A.G.’s testimony of sexual
abuse. The State contends that the Defendant’s statements were voluntary and that he was
Mirandized twice before making any statements. The State asserts that the agents did not engage in
any coercive behavior that caused the Defendant to make an involuntary statement. Thus, the State
argues that, considering the totality of the circumstances, the trial court properly denied the motion
to suppress.

       After hearing testimony from Agent Ellis, Agent Forrestall, and the Defendant at the
suppression hearing, the court made the following findings:

       It is true that in Tennessee we have a constitution that is more restrictive than the
       Federal Constitution when it comes to the protection of individual rights of a citizen,
       and the test of whether or not a statement is made voluntarily under the Tennessee
       Constitution is broader and more protective than the test of voluntariness under the
       United States Constitution.

                Tennessee Law requires a Court to consider the totality of the circumstances
       when making a decision about the admissibility of a statement when its admissibility
       has been challenged and the issue is whether or not it has voluntarily been made[.]
       . . . [T]he reason that you have to consider it on a case-by-case basis and the totality
       of the circumstances, is because no two circumstances are always the same.
       Defendants are not the same. Officers that conduct the questioning are not the same,
       so you have to look at everything on a case-by-case basis. In this case, the Defendant
       maintains that the statements that he gave were not voluntarily made. And he
       contends that they were not voluntarily made because he was coerced. Now, the
       testimony has established that the Defendant was arrested on July 17, 1998 in a public
       place while the Defendant was in his words, walking around smoking a cigarette. The
       Defendant was approach[ed] and immediately arrested and advised that he was being
       placed under arrest because of a charge of engaging in interstate travel with the intent
       to engage in a sex act with a minor. He was placed in a vehicle, he was transported
       to [the Florida Department of Law Enforcement]. . . . There was no conversation


                                                 -36-
conducted in the vehicle when he was transported to that facility and when he got
there, he was presented forthwith with a Miranda Warning form or Rights Advisement
Form, which the Defendant said he read and that he signed.

         There was a period of time when he was asked questions by two officers,
Forrestall and Ellis and for some period of hours, [the Defendant] maintained his
innocence. The Defendant does not raise any issue in his papers nor does the
testimony suggest that the coercion that he is alluding to is physical coercion. He
hasn’t maintained that he was beaten or struck or physically forced to sign or say
anything. His contention is that the things that were said and the representations that
were made were false or were a lie and it basically tricked him into going along with
something that otherwise, he would not have gone along with. What [the Defendant]
says is that after some period of time, that went over two to three days, he finally said
okay, I have engaged in this criminal conduct up in Tennessee and according to [the
Defendant], . . . what he said was the benefit that I thought I was getting was
preventing them, meaning the alleged victims in this indictment, from having to go
through what I was going through. So, [the Defendant’s] testimony indicates that the
reason that he relented and went along with this suggestion that he was a criminal, and
engaging in these acts was because he thought he was doing a favor to these children,
and that’s the benefit that he saw that he was going to derive from all this.

        According to the testimony that has been offered here, [the Defendant] is
intelligent. He is certainly articulate. According to the testimony, he answered the
questions that were posed to him by the officers. He based his testimony here today,
had a good memory. He recalled details. He recalled things that were said to him, and
the written statement in question is a statement that he wrote outside the presence of
the officers . . . . [I]t was done while he was alone and there is an indication . . . that
when you read it, it has a sort of a reflective tone about it. . . . [I]n terms of his ability
to understand what was going on around him, all the evidence indicates that he knew
where he was, he knew what was being asked of him, he responded appropriately, he
sat down outside the presence of these officers and wrote out this statement.

        Now, the Phillips case says a lot, but the Phillips case in pertinent part at one
point says that the crucial question is whether the behavior of the State’s officials was
such as to overbear the Petitioner’s will to resist and bring about confessions, not
freely self-determined. In other words, did these officers overbear [the Defendant’s]
will and cause his will just to break down to the point he couldn’t resist anymore and
he confessed to crimes that he didn’t commit and that he certainly would not have
voluntarily and freely and through self-determination made the confession but for the
overbearing conduct on the part of the officers? And the evidence today that I have
heard doesn’t bear that out. . . . [W]hether he thought he was going to get a benefit
that turned out not to be true, may be something for the Court to consider, but whether
it is admitted or not, doesn’t hinge on that.


                                            -37-
                The Court finds that after considering the totality of the circumstances, he did
        what he did voluntarily and he knew what he was doing and it was a free act on his
        part. He freely admitted that he was Mirandized initially. He was re-Mirandized, he
        signed the forms. He even signed a consent to search form. So the motion to suppress
        is denied.

        The standard of review for a trial court’s findings of fact and conclusions of law in a
suppression hearing was established in State v. Odom, 928 S.W.2d 18 (Tenn. 1996). This standard
mandates that “a trial court’s findings of fact in a suppression hearing will be upheld unless the
evidence preponderates otherwise.” Id. at 23; see State v. Randolph, 74 S.W.3d 330, 333 (Tenn.
2002). The prevailing party in the trial court is “entitled to the strongest legitimate view of the
evidence adduced at the suppression hearing as well as all reasonable and legitimate inferences that
may be drawn from that evidence.” Odom, 928 S.W.2d at 23. Furthermore, “[q]uestions of
credibility of the witnesses, the weight and value of the evidence, and resolution of conflicts in the
evidence are matters entrusted to the trial judge as the trier of fact.” Id. However, this Court reviews
the trial court’s application of the law to the facts de novo, without any deference to the
determinations of the trial court. State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001). The defendant
bears the burden of demonstrating that the evidence preponderates against the trial court’s findings.
Odom, 928 S.W.2d at 22-23; State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997).

          The Fifth Amendment to the United States Constitution provides that “[n]o person . . . shall
be compelled in any criminal case to be a witness against himself. . . .” U.S. Const. amend. V; see
also Malloy v. Hogan, 378 U.S. 1, 6 (1964) (holding that the Fifth Amendment’s protection against
compulsory self-incrimination is applicable to the states through the Fourteenth Amendment). Article
I, Section 9 of the Tennessee Constitution provides that “in all criminal prosecutions, the accused .
. . shall not be compelled to give evidence against himself.” Tenn. Const. art. I, § 9. “The significant
difference between these two provisions is that the test of voluntariness for confessions under Article
I, § 9 is broader and more protective of individual rights than the test of voluntariness under the Fifth
Amendment.” State v. Crump, 834 S.W.2d 265, 268 (Tenn. 1992).

         Generally, one must affirmatively invoke these constitutional protections. An exception
arises, however, when a government agent makes a custodial interrogation. Statements made during
the course of a custodial police interrogation are inadmissible at trial unless the state establishes that
the defendant was advised of his right to remain silent and his right to counsel and that the defendant
then waived those rights. Miranda v. Arizona, 384 U.S. 436, 471-75 (1966); see also Dickerson v.
United States, 530 U.S. 428, 444 (2000); Stansbury v. California, 511 U.S. 318, 322 (1994). A
defendant’s rights to counsel and against self-incrimination may be waived as long as the waiver is
made voluntarily, knowingly, and intelligently. Miranda, 384 U.S. at 478; State v. Middlebrooks, 840
S.W.2d 317, 326 (Tenn. 1992). In this case, the Defendant does not dispute that he made a voluntary,
knowing, and intelligent wavier of his rights to counsel and against self-incrimination during the
interviews with Agents Ellis and Forrestall. Instead, the Defendant argues that the statements he
made during his custodial interrogations were involuntary because they were the product of coercion.



                                                  -38-
         “Confessions that are involuntary, i.e., the product of coercion, whether it be physical or
psychological, are not admissible.” Phillips, 30 S.W.3d at 376 (citing Rogers v. Richmond, 365 U.S.
534, 540 (1961)). In order to make the determination of whether a confession was voluntary, the
particular circumstances of each case must be examined. Id. at 377 (citing Monts v. State, 218 Tenn.
31, 400 S.W.2d 722, 733 (1966)). “Coercive police activity is a necessary prerequisite in order to find
a confession involuntary.” Id. (citing State v. Brimmer, 876 S.W.2d 75, 79 (Tenn.1994)). “The
crucial question is whether the behavior of the state’s officials was ‘such as to overbear petitioner’s
will to resist and bring about confessions not freely self-determined.’” Id. (quoting Rogers, 365 U.S.
at 544); see State v. Kelly, 603 S.W.2d 726, 728 (Tenn. 1980). The question must be answered with
“complete disregard” of whether the defendant was truthful in the statement. Phillips, 30 S.W.3d at
377 (citing Rogers, 365 U.S. at 544).

        In State v. Smith, 933 S.W.2d 450, 456 (Tenn. 1996), the Tennessee Supreme Court
concluded that a social worker’s statement to the defendant that the district attorney might not
prosecute him for sexual abuse if the defendant told the truth and received counseling could not
reasonably be interpreted as a promise that there would be no prosecution. The Court further
concluded that a statement that the defendant would be prosecuted if he chose not to admit unlawful
conduct was insufficient to render his subsequent confession involuntary. Smith, 933 S.W.2d at 456.
Under all the circumstances, the Smith Court concluded that the defendant’s statements were not
“compelled” in violation of the state or federal constitution. Id. However, the Court noted that the
interrogator’s remarks were “on the line, but did not cross it.” Id. at 458. The Court then expressed
“the strongest disapproval of any practice whereby state agents encourage suspects to seek counseling
for the purpose of eliciting incriminating statements for use in a subsequent prosecution.” Id.

        In Phillips, the defendant drove himself to the Tennessee Department of Human Services for
an interview regarding the alleged sexual abuse of the defendant’s stepdaughters. Phillips, 30 S.W.3d
at 374. The investigators interrogated the defendant for about one hour, and, although he repeatedly
and steadfastly denied any sexual misconduct for much of the interview, the defendant finally
admitted to sexually abusing one of his stepdaughters. Id. This Court reviewed a thirty-six page
transcript of the interrogation of the defendant which revealed: (1) misrepresentations by an
investigator; (2) numerous steadfast denials by the defendant; (3) statements that law enforcement
officials would be involved if the defendant did not confess to sexually abusing his stepdaughter; and
(4) promises of treatment for the defendant and his stepdaughter only if he fully confessed to the
crimes. Id. at 377. The promises and inducements were made repeatedly by the investigators prior
to the defendant’s confessions. Id. This Court concluded that “[t]he actions of the interrogators were
much more coercive than those found in Smith and, unlike Smith, crossed the line.” Id.

        In this case, unlike Phillips, no recordings or transcripts of the interviews with Defendant were
made by the agents. Therefore, we must review the Defendant’s testimony and the testimony of
Agent Ellis and Agent Forrestall to determine whether the Defendant’s statements were voluntary.
After thoroughly reviewing the testimony at the suppression hearing, we conclude that the evidence
does not preponderate against the trial court’s findings that the Defendant voluntarily made his
statements to the agents.


                                                  -39-
         Agent Ellis testified that, after being arrested, the Defendant signed the Miranda rights form
and said that he did not want an attorney. Agent Ellis stated that they used a “good cop/bad cop”
routine on the Defendant to extract information. Agent Ellis testified, “I remember specifically
relating that if he wanted to cooperate, that it had to be one hundred percent and that if he did
cooperate, that I would represent that cooperation to whatever authority was appropriate.” The initial
interview at the Florida Department of Law Enforcement headquarters lasted approximately three and
a half hours, and then the agents transported the Defendant to the Leon County Jail. Agent Ellis
testified that there was no “talk about children being removed from the home and children being
removed [from] their parents. . . .” Agent Forrestall likewise denied telling the Defendant that the
victims would be removed from their homes. Agent Forrestall testified that he told the Defendant that
his pedophilia was a sickness that needed to be treated and that the victims he abused also needed
help. On the way to the jail, Agent Forrestall stated that the Defendant said that he wanted to get help,
but that he did not want to talk that evening.

         At the Leon County Jail the next morning, the agents advised the Defendant of his Miranda
rights again, and the Defendant again signed the rights form. Agent Ellis explained that the
Defendant “had a frame of mind to disclose” and that “he was almost repent[a]nt.” Agent Forrestall
denied slamming his fists on the table during the interviews or throwing his legal pad down on the
table. The agents explained that the Defendant related that he had been sexually abused as a child.
Agent Forrestall stated that he told the Defendant “that he needed to be truthful and admit to his past
and to himself, and that was the only way we were going to be able to get him any kind of counseling.
. . . [W]e were trying to explain to him that this is an illness and a disease . . . .” The agents stated
that the Defendant agreed to compose letters to the victims and their families regarding the sexual
abuse and to write down “any additional thoughts.” Agent Ellis stated that he returned the following
morning and reminded the Defendant that he had been Mirandized on two previous occasions. The
agent said the Defendant gave him the pad that contained the written confessions of sexual abuse, and
they discussed those written confessions. Agent Ellis denied offering the Defendant any kind of
leniency, rather he told the Defendant that, if he cooperated, the agents would “represent that
cooperation to the appropriate entities . . . .” Agent Ellis testified that neither he nor Agent Forrestall
promised the Defendant treatment if he admitted to abusing children.

        The Defendant testified that, at the time he was arrested and taken to the Florida Department
of Law Enforcement, he had been up for thirty-one hours straight and was very tired. He admitted
to signing the Miranda rights form. The Defendant stated that the agents “mentioned that there must
be an admission for me to receive help and for [the victims] to receive help.” He stated that Agent
Forrestall said “you know by lying and saying that you weren’t f****** these kids, keeping us from
getting them the help they need, we can charge you with obstruction of justice? And he threw his
note pad.” The Defendant said that Agent Forrestall also slammed his fist on the table in front of him
as he yelled at him. The Defendant stated that Agent Forrestall said “because of my continual denials,
they were going to take [the victims] into custody for ninety days, in a juvenile detention center. He
said that they would be isolated from each other and their parents and interrogated . . . until they admit
to being raped.” The Defendant stated that he did not sleep at all in the jail because the guards kept
waking him up every fifteen minutes. He stated that he started to cooperate the next day because he


                                                   -40-
did not want the victims to go through the interrogations and questioning by police. He said that he
admitted to sexually touching the children. He stated that he believed that he was saving the children
from going through intrusive interrogations about the abuse. The Defendant said that the agents did
not offer him any leniency “[o]ther than the fact that they offered help and offered to represent my
cooperation . . . . The benefit that I thought I was going to get out of it was preventing [the victims]
here in Tennessee from [being interrogated about the abuse].”

         After thoroughly reviewing the evidence, we conclude that Phillips is distinguishable from
the case under submission. In Phillips, the investigators made misrepresentations to the defendant
and promises of treatment for the defendant and his stepdaughter only if he fully confessed. In this
case, the trial court credited the testimony of Agent Ellis and Agent Forrestall instead of the
Defendant’s testimony. Questions of credibility of the witnesses, the weight and value of the
evidence, and resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier
of fact. Odom, 928 S.W.2d at 23. The agents denied promising the Defendant leniency in return for
cooperation, and the Defendant admitted that they did not promise leniency. Agent Forrestall testified
that he told the Defendant he was sick and needed treatment, but Agent Ellis stated that they did not
tell the Defendant that he would get treatment only if he admitted to sexually abusing the children.
The agents denied telling the Defendant that they would take the abused children away from their
parents if he did not admit to sexually abusing them. Accordingly, after thoroughly reviewing the
evidence from the suppression hearing, we conclude that the evidence does not preponderate against
the trial court’s findings that the Defendant voluntarily made the statements to the agents. Therefore,
we agree with the trial court’s conclusion that, considering the totality of the circumstances, the
Defendant freely and voluntarily confessed to sexually abusing A.G. This issue is without merit.

                                     I. Lesser-Included Offenses

        Next, the Defendant contends that the trial court erred in failing to instruct the jury on the
offense of child abuse as a lesser-included offense of child rape. The State contends that a jury
instruction on child abuse was not required in this case because there was no evidence that the
Defendant physically injured the victim or that the victim had an impairment of a mental faculty. We
agree with the State.

        The trial court has a duty to instruct the jury on any lesser-included offenses of the charged
offense when such instruction is supported by the evidence, regardless of whether the Defendant has
requested such an instruction. State v. Bowles, 52 S.W.3d 69, 74 (Tenn. 2001); State v. Burns, 6
S.W.3d 453, 464 (Tenn. 1999). The standard for an appellate court’s review of the trial court’s charge
to the jury regarding lesser-included offenses is de novo with no presumption of correctness. State
v. Moore, 77 S.W.3d 132, 134 (Tenn. 2002).

        If an offense is found to be a lesser-included offense, the court must next ascertain whether
the evidence justifies a jury instruction on the lesser-included offense. Bowles, 52 S.W.3d at 75. To
do so, the court must first determine whether there is evidence that “reasonable minds” could accept
to establish the lesser-included offense. Burns, 6 S.W.3d at 469. The court must view the evidence


                                                   -41-
liberally in a light most favorable to the existence of the lesser-included offense without judging its
credibility. State v. Ely, 48 S.W.3d 710, 722 (Tenn. 2001); Burns, 6 S.W.3d at 469. Finally, the court
must determine if the evidence is “legally sufficient” to support a conviction for the lesser-included
offense. Burns, 6 S.W.3d at 469.

        The evidence, not the theories of the parties, determines whether an instruction on a lesser-
included offense should be given. State v. Allen, 69 S.W.3d 181, 188 (Tenn. 2002). Furthermore,
the decision to convict on a lesser-included offense should not be taken from the jury simply because
the element distinguishing the greater offense from the lesser offense is “uncontroverted.” Id. at 189.
If the evidence justifies an instruction, the failure to charge the offense is error even though the
evidence was also sufficient to support the greater offense. Burns, 6 S.W.3d at 472.

        In State v. Elkins, 83 S.W.3d 706, 711 (Tenn. 2002), the Tennessee Supreme Court applied
the Burns test and held that child abuse is a lesser-included offense of rape of a child and must be so
instructed if the evidence presented at the trial is legally sufficient to support a conviction of child
abuse. In Elkins, the victim testified that the defendant held her down, that she attempted to fight him
off, and that she sustained bruises on her body as a result of the defendant’s conduct. Elkins, 83
S.W.3d at 711. Other witnesses testified to seeing the bruises on the victim. Id. Therefore, the court
determined that, “viewing the evidence presented at trial liberally in the light most favorable to the
existence of the lesser-included offense, . . . we conclude that an instruction on child abuse was
warranted in this case because the evidence, viewed in this light, is legally sufficient to support a
conviction of child abuse.” Id.

        A person commits child abuse “who knowingly, other than by accidental means, treats a child
under eighteen (18) years of age in such a manner as to inflict injury . . . .” Tenn. Code Ann. § 39-15-
401(a) (1997). “Bodily injury” includes “a cut, abrasion, bruise, burn or disfigurement; physical pain
or temporary illness or impairment of the function of a bodily member, organ, or mental faculty.”
Tenn. Code Ann. § 39-11-106(a)(2) (1997).


         In this case, the trial court instructed the jury in Counts 2 and 3 on rape of a child and the
lesser-included offenses of aggravated sexual battery, sexual battery, and assault, but did not instruct
the jury on child abuse. This failure to instruct on child abuse would be error if the evidence
presented at trial was legally sufficient to support a conviction of child abuse. After thoroughly
reviewing the evidence presented, we conclude that the evidence was not legally sufficient to support
a child abuse conviction. In this case, A.G. did not testify to any bodily injury such as “a cut,
abrasion, bruise, burn or disfigurement; physical pain or temporary illness or impairment of the
function of a bodily member, organ, or mental faculty.” See Tenn. Code Ann. § 39-11-106(a)(2).
A.G.’s examination report from the Our Kids Center stated that A.G. did not have any bodily injuries
to his genital or anal regions and stated that A.G. “reported no problems or concerns.” In his appellate
brief, the Defendant contends that “the jury could have determined that child abuse was appropriate
as physical injury was possible with fellatio of a young child, such as if a child resisted fellatio, injury
is possible in that sensitive area; and that A.G.’s mental health may have been injured.” However,


                                                   -42-
the Defendant’s assertions are based upon pure speculation that A.G. may have been injured. There
was no proof presented at trial that the Defendant actually injured A.G. Therefore, viewing the
evidence presented at trial liberally in a light most favorable to the existence of the lesser-included
offense, without judging its credibility, we conclude that an instruction on child abuse was not
warranted in this case because the evidence, viewed in this light, is not legally sufficient to support
a conviction of child abuse. See Ely, 48 S.W.3d at 722; Burns, 6 S.W.3d at 469. Accordingly, we
conclude that the trial court did not err by not instructing the jury on child abuse. This issue is
without merit.

                                 J. Improper Closing Arguments

        The Defendant next contends that the State’s opening and closing arguments “were so
improper that they infected the trial with unfairness and denied due process to the Defendant.” The
State contends that the Defendant waived this issue because he never objected to any of the statements
during the State’s opening and closing arguments. We agree with the State.

          The Tennessee Supreme Court “has long recognized that closing arguments are a valuable
privilege that should not be unduly restricted.” Terry v. State, 46 S.W.3d 147, 156 (Tenn. 2001)
(citing State v. Sutton, 562 S.W.2d 820, 823 (Tenn. 1978)); State v. Goltz,111 S.W.3d 1, 5 (Tenn.
Crim. App. 2003). “Consequently, attorneys are given greater leeway in arguing their positions before
the jury, and the trial court has significant discretion in controlling these arguments, to be reversed
only upon a showing of an abuse of that discretion.” Terry, 46 S.W.3d at 156 (citing Sutton, 562
S.W.2d at 823); see Smith v. State, 527 S.W.2d 737, 739 (Tenn. 1975); Goltz, 111 S.W.3d at 5. This
Court has explained that “[closing] arguments must be temperate, based upon the evidence introduced
at trial, relevant to the issues being tried, and not otherwise improper under the facts or law.” Goltz,
111 S.W.3d at 5 (citing Coker v. State, 911 S.W.2d 357, 368 (Tenn. Crim. App. 1995)).

        When an appellate court finds an argument to be improper, “the established test for
determining whether there is reversible error is whether the conduct was so improper or the argument
so inflammatory that it affected the verdict to the Appellant’s detriment.” Goltz, 111 S.W.3d at 5
(citing Harrington v. State, 215 Tenn. 338, 385 S.W.2d 758, 759 (1965)). In measuring the
prejudicial impact of an improper argument, this Court should consider the following factors: “(1)
the facts and circumstances of the case; (2) any curative measures undertaken by the court and the
prosecutor; (3) the intent of the prosecution; (4) the cumulative effect of the improper conduct and
any other errors in the record; and (5) the relative strength or weakness of the case.” Goltz, 111
S.W.3d at 5-6 (citing Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976)); see State v.
Buck, 670 S.W.2d 600, 609 (Tenn. 1984).

      In Goltz, this Court found that within the closing argument, five general areas of prosecutorial
misconduct are recognized:

       1. It is unprofessional conduct for the prosecutor intentionally to misstate the
       evidence or mislead the jury as to the inferences it may draw.


                                                 -43-
       2. It is unprofessional conduct for the prosecutor to express his [or her] personal
       belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of
       the defendant. See State v. Thornton, 10 S.W.3d 229, 235 (Tenn. Crim. App. 1999);
       Lackey v. State, 578 S.W.2d 101, 107 (Tenn. Crim. App. 1978); TENN . CODE OF
       PROF’L RESPONSIBILITY DR 7-106(c)(4).
       3. The prosecutor should not use arguments calculated to inflame the passions or
       prejudices of the jury. See Cauthern, 967 S.W.2d at 737; State v. Stephenson, 878
       S.W.2d 530, 541 (Tenn. 1994).
       4. The prosecutor should refrain from argument which would divert the jury from its
       duty to decide the case on the evidence, by injecting issues broader than the guilt or
       innocence of the accused under the controlling law, or by making predictions of the
       consequences of the jury’s verdict. See Cauthern, 967 S.W.2d at 737; State v. Keen,
       926 S.W.2d 727, 736 (Tenn. 1994).
       5. It is unprofessional conduct for a prosecutor to intentionally refer to or argue facts
       outside the record unless the facts are matters of common public knowledge.

Goltz, 111 S.W.3d at 6 (quoting STANDARDS RELATING TO THE PROSECUTION FUNCTION AND THE
DEFENSE FUNCTION §§ 5.8-5.9 Commentary (ABA Project on Standards for Criminal Justice,
Approved Draft 1971)).

        We agree with the State that the Defendant has waived this issue by his failure to raise a
contemporaneous objection at trial, either during opening argument or closing argument. Tenn. R.
App. P. 36(a); State v. Little, 854 S.W.2d 643, 651 (Tenn. Crim. App. 1992) (stating that failure to
object to prosecutor’s alleged misconduct in closing argument waives any later complaint). However,
even if not waived, we conclude that this issue is without merit. The Defendant objects to the State’s
reference to Arthur Lee Stevens in the opening argument; however, at that point in the trial, the State
believed that it would call Stevens because the trial court had not ruled whether that witness could
testify. Therefore, we conclude that the prosecutor’s statement during opening argument was not
improper. The Defendant objects to the following statements made by the prosecutor in his closing
argument:

       . . . . But if it is a credibility contest, we ask you to consider carefully, the testimony
       of [A.G.]. [A.G.] is eleven now. [A.G.] told you a couple of days ago about some
       things that occurred when he was seven and eight years old. That’s something like
       three or four years into [A.G.’s] life, in the past. . . .

                Considering the exact circumstances of this case, [A.G.’s] credibility, the State
       would submit to you is quite good. [The Defendant’s] credibility, a long, long time
       ago a very distinguished person once said something like you can fool all of the people
       some of the time; you can fool some of the people all of the time, but you can’t fool
       all of the people all of the time. Why is that important? It is important because there
       is four years of history here. . . .



                                                  -44-
         In that four year history, it seems that there were three interviews with the
police. It seems that there was a prior hearing. And of course, we are having this jury
trial. And yesterday, by the State’s recollection, which doesn’t count. Yours does.
The State recollects [the Defendant] denying any kind of touching of [A.G.’s] penis
or any kind of mouth of anybody’s penis act, and in the State’s recollection . . . is that
he had a pretty clear memory of the three interviews. The four year history, you can’t
fool all of the people all of the time! I think I remember asking him do you admit or
deny that you lied to the police? My recollection of that answer is that he admitted
that he lied to the police? . . . .

       If this is a swearing contest, the question may be this? May be this simple,
does the testimony of [the Defendant] raise a reasonable doubt as to the testimony of
[A.G.]? And the State submits that it does not. You don’t need to go beyond that.

       But the State’s contention as we told you earlier today is it is not really a
swearing contest. . . .

        Ladies and gentlemen of the jury, what this proof shows, the State would
submit is [A.G.’s] love, his trust was perverted by [the Defendant] in order to gratify
one of the blackest of human desires and the proof supports that beyond a reasonable
doubt and to a moral certainty. . . .

Who[’s] on trial? Well, the Defense wants to try Forrestall. Okay, it’s twelve years
old, he messed up. Hopefully, he’ll do better. . . . Forrestall hasn’t lied to you about
it. DCS is on trial. They lost their file. I wish they hadn’t done that. And you are
going to be instructed, if you want to, you can infer that that missing evidence that
they lost, should be held against the State and I apologize and I don’t know what to
say other than that, we wish it was here.

        Who is on trial here? Ellis? Where is his notes? Well, remember what Ellis
said? For some reason, he thought the case was disposed of and he shredded his
notes, so Ellis is on trial. So, [the Defendant] isn’t guilty? Well, no. No.

         Maybe [A.G.’s mother] is on trial? Maybe the D.A.’s office is on trial? They
influenced [A.G.]? They interviewed him three times. She hasn’t talked to him.
Remember [A.G.’s] testimony? What did your Mom tell you? She told me to tell the
truth. . . .

[A.G.] is on trial too. He is on trial because he had suicidal tendencies. Okay, he did.
Why did he have suicidal tendencies, because the man in his life, this gentleman here,
was sent to perform his military duty eight thousand miles away for a year. What is
the significance of that? The significance of that is this. [The Defendant] rather
candidly admitted that he knew of these suicidal tendencies and if you conclude [the


                                          -45-
       Defendant] was trying to weasel his way into [A.G.’s] confidence, that, the State
       would submit, is something that could be used to do that. . . .

               Ladies and gentlemen of this jury, this is a Nintendo 64 case. This is the Dad
       was in Korea for a year case and [A.G.] really missed him case. The Defense tells you
       that this is the case of the soft voice of influence, and the State asks you, ladies and
       gentlemen of the jury, to consider the possibility that this is the case of the loud voice
       of perjury.

        The Defendant claims that the State’s closing argument was improper and that, as a result of
this argument, the Defendant was denied due process. We respectfully disagree. The prosecutor’s
statements during closing argument conformed to the evidence presented at the Defendant’s trial.
Many of the prosecutor’s statements were made in response to the Defendant’s closing argument
which challenged the credibility of A.G., Agent Ellis, and Agent Forrestall and implied that A.G. was
improperly influenced by the district attorney’s office and by DCS. Accordingly, we conclude that
the prosecutor’s statements during closing argument were not improper. This issue is without merit.

                                K. Supplemental Jury Instructions

        The Defendant next contends that the trial court erred by giving the jury a supplemental
instruction entitled, “Revised Instruction on Order of Consideration.” He asserts that the trial court
should have admonished the jury not to place undue emphasis on the supplemental order of
consideration instructions and to consider them in conjunction with the entire charge. The Defendant
contends that, as a result of this supplemental instruction, the jury returned in less than one hour with
the three guilty verdicts. The State contends that the Defendant has waived this issue because he
failed to object to the supplemental jury instruction at trial. The State also asserts that the revised
instruction merely clarified the order in which the jury was to consider the charged offenses and their
respective lesser-included offenses, and that the main charge contained an instruction no to single out
one instruction over any other. We agree with the State.

        “As a general rule, it is within the province of the court to recall a jury for supplemental
instructions, but it is considered the better practice to admonish the jury not to place undue emphasis
on the supplemental instructions and to consider them in conjunction with the entire charge.” Leach
v. State, 552 S.W.2d 407, 408 (Tenn. Crim. App. 1977). “In some cases, failure to so admonish the
jury can amount to reversible error. Whether it is reversible error is determined by examining the
entire record to ascertain if such action might reasonably be expected to prejudice a defendant.” Id.
(citing Burton v. State, 217 Tenn. 62, 394 S.W.2d 873 (1965)).

       In this case, the original instruction on the order of consideration, as to Count 1, provided as
follows:

              If you have a reasonable doubt as to the defendant’s guilt of Aggravated
       Sexual Battery as charged in count one of the indictment, then your verdict must be


                                                  -46-
        not guilty as to this offense, and then you shall proceed to determine his guilt of the
        lesser included offense of Sexual Battery. If you have a reasonable doubt as to the
        defendant’s guilt of Sexual Battery, then your verdict must be not guilty as [sic] this
        offense, and then you shall proceed to determine his guilt of the lesser included
        offense of Assault. If you have a reasonable doubt as to the defendant’s guilt of
        Assault, then your verdict must be not guilty as to count one.

The trial court gave similar instructions for Counts 2 and 3, except those instructions started with the
charged offenses of rape of a child.

         After the trial court instructed the jury and the jury retired for deliberations, the trial court
announced that, before the jury took a break for supper, it would give jurors a revised instruction on
the order of consideration portion of the original jury instructions. The Defendant did not object to
the trial court giving the supplemental instruction. The trial court told the jury the following:

        Ladies and Gentlemen, I am sorry to disturb you, but I know that we have sent out for
        some supper for you and it is on its way and it will be here soon and you are going to
        be breaking for that, so I thought I would call you up here. I was looking through my
        instructions and it occurred to me that maybe I didn’t do a very good job of writing
        on of the instructions, that perhaps I could have written it a little more clearly. And
        so, I have rewritten it and I want to give it to you now, but I want you to understand
        that it does not mean that what I wrote originally was wrong. It is not wrong, it’s just
        that I don’t think that I wrote it as clearly as I should have for folks who don’t deal
        with it everyday, and so I want to give you this just to add to your collection and then
        we will leave you alone and let you get back to your business. . . .

The trial court gave the following revised instruction on the order of consideration as to Count 1:

               Commence your deliberations by first considering count one of the indictment.
        The defendant is charged in count one with Aggravated Sexual Battery. First,
        consider whether the defendant is guilty of Aggravated Sexual Battery. If so, mark
        the count one verdict form accordingly and stop your deliberations as to count one.
        If you find the defendant not guilty of Aggravated Sexual Battery, then consider
        whether the defendant is guilty of the lesser included offense of Sexual Battery.

                If you find the defendant guilty of Sexual Battery, mark count one verdict form
        accordingly and stop your deliberations as to count one. If you find the defendant not
        guilty of Sexual Battery, then consider whether the defendant is guilty of the lesser
        included offense of Assault.

                If you find the defendant guilty of Assault, mark the count one verdict form
        accordingly and stop your deliberations as to count one. If you find the defendant not
        guilty of Assault, then you have found the defendant not guilty of the offenses


                                                  -47-
         embraced in count one of the indictment. Mark the verdict form for count one
         accordingly.

The trial court gave similar revised instructions for Counts 2 and 3, except those instructions started
with the charged offenses of rape of a child. After giving the revised instructions, the trial court told
the jury, “Take these and consider them in conjunction with the other instructions that I have given
you and recommence your deliberations. We will let you go back down to your room and your food
will be here shortly . . . .”

         First, we conclude that the Defendant waived this issue because he did not object to the
supplemental instruction when the trial court announced its intention to give the instruction. Tenn.
R. App. P. 36(a); State v. McPherson, 882 S.W.2d 365, 375 (Tenn. Crim. App. 1994). Even if this
issue was not waived, we conclude that it is without merit. The supplemental instruction given by
the trial court was legally correct and was a clarification of the original instruction regarding the order
of consideration. Furthermore, while the Defendant claims that the trial court did not admonish the
jury to not place undue emphasis on the supplemental instruction, the trial court did instruct the jury
to “[t]ake these and consider them in conjunction with the other instructions that I have given you .
. . .” Also, the jury instructions included an instruction not to single out one instruction over any
other. Finally, the trial court did not “interrupt” the jury’s deliberations because the jury was going
to break for supper when the trial court gave the supplemental instructions. Therefore, we conclude
that the trial court did not err by giving the supplemental instruction. This issue is without merit.

                                                   L. Sentencing

        Finally, the Defendant contends that the trial court erred in ordering that his sentences be
served consecutively under Tennessee Code Annotated section 40-35-115(b)(5) (1997 & Supp. 2002).
The trial court sentenced the Defendant to the presumptive minimum of eight years8 for each
conviction, to be served consecutively with each other, for an effective sentence of twenty-four years.
Since we reversed the Defendant’s conviction in Count 1 and vacated the eight-year sentence for that
count, we will consider the issue of consecutive sentencing for the convictions in Counts 2 and 3.
The State contends that the trial court did not abuse its discretion by ordering consecutive sentencing


          8
            The United States Supreme Court’s recent opinion in Blakely v. W ashington, 542 U.S. – , 124 S. Ct. 2531,
 (2004), calls into question the continuing validity of our current sentencing scheme. In that case, the Court, applying
 the rule in Apprendi v. New Jersey, 566 U.S. 466, 490 (2000), struck down a provision of the W ashington sentencing
 guidelines that permitted a trial judge to impose an “exceptional sentence” upon the finding of certain statutorily
 enumerated enhancement factors. Id. at *13-14. The Court observed that “the ‘statutory maximum’ for Apprendi
 purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or
 admitted by the defendant.” The Court concluded that “every defendant has a right to insist that the prosecutor prove
 to a jury all facts legally essential to the punishment.” Id. at *31.

           In the case presently before us, the trial court sentenced the Defendant to the presumptive minimum of eight
 years for each conviction. Therefore, the trial court’s sentencing of the Defendant does not violate the law articulated
 in Blakely because the trial court sentenced the Defendant to the presumptive minimum, despite having found two
 enhancement factors.

                                                         -48-
because the Defendant was convicted of two or more statutory offenses involving the sexual abuse
of a minor and the trial court considered the aggravating circumstances. We agree with the State.

        When a defendant challenges the length and manner of service of a sentence, it is the duty of
this court to conduct a de novo review on the record with a presumption that “the determinations
made by the court from which the appeal is taken are correct.” Tenn. Code Ann. § 40-35-401(d)
(2003). 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. Ross,
49 S.W.3d 833, 847 (Tenn. 2001); State v. Pettus, 986 S.W.2d 540, 543 (Tenn. 1999); State v. Ashby,
823 S.W.2d 166, 169 (Tenn. 1991). The presumption does not apply to the legal conclusions reached
by the trial court in sentencing a defendant or to the determinations made by the trial court which are
predicated upon uncontroverted facts. State v. Dean, 76 S.W.3d 352, 377 (Tenn. Crim. App. 2001);
State v. Butler, 900 S.W.2d 305, 311 (Tenn. Crim. App. 1994); State v. Smith 891 S.W.2d 922, 929
(Tenn. Crim. App. 1994). In conducting a de novo review of a sentence, we must consider: (a) any
evidence received at the trial and/or sentencing hearing; (b) the presentence report; (c) the principles
of sentencing; (d) the arguments of counsel relative to sentencing alternatives; (e) the nature and
characteristics of the offense; (f) any mitigating or enhancement factors; (g) any statements made by
the defendant on his or her own behalf; and (h) the defendant’s potential or lack of potential for
rehabilitation or treatment. Tenn. Code Ann. § 40-35-210 (2003); State v. Taylor, 63 S.W.3d 400,
411 (Tenn. Crim. App. 2001). The party challenging a sentence imposed by the trial court has the
burden of establishing that the sentence is erroneous. Tenn. Code Ann. § 40-35-401, Sentencing
Commission Cmts.

        The trial court may consider mitigating factors and enhancement factors when determining
a defendant’s sentence. Tenn. Code Ann. §§ 40-35-113, -114. A trial court may order sentences to
run consecutively if a defendant is charged with more than one criminal offense and it finds, by a
preponderance of the evidence, that one or more of several criteria are met as set forth in Tennessee
Code Annotated section 40-35-115 (1997). State v. Kern, 909 S.W.2d 5, 8 (Tenn. Crim. App. 1993).
These criteria include a finding by the trial court that the defendant is convicted of two or more
statutory offenses involving sexual abuse of a minor “with consideration of the aggravating
circumstances arising from the relationship between the defendant and victim or victims, the time
span of defendant’s undetected sexual activity, the nature and scope of the sexual acts and the extent
of the residual, physical and mental damage to the victim or victims.” Tenn. Code Ann. § 40-35-
115(b)(5). Whether sentences are to be served consecutively or concurrently is a matter within the
sound discretion of the trial court. State v. James, 688 S.W.2d 463, 465 (Tenn. Crim. App. 1984).

      The trial court ordered that the Defendant serve his sentences consecutively under Tennessee
Code Annotated section 40-35-115(b)(5), finding the following:

               As previously noted by the Court, [the Defendant] had a relationship with the
       victim. The relationship was that of a neighbor, a friend, a person that the child was
       entrusted to from time to time for care. Usually baby-sitting care. So, there was a
       relationship that fostered–or facilitated I should say–the repeated sexual conduct that


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        [the Defendant] engaged with this child.

               Furthermore, the Court can consider the time span of the Defendant’s
        undetected sexual activity. The three convictions that . . . [the Defendant] has
        occurred over a span of time which was not really nailed down during the evidence.
        What the indictment alleg[es] is one thing, but what the evidence shows is what the
        Court has to go by. . . .

        But the Court does find[] there was a time span. That it was not three offenses that
        occurred within a 24 hour period or any short period like that. Based on the testimony
        of the child they were different times of day, different dates, and different events that
        were going on.

                Also, the Court is permitted to consider the nature and scope of the sexual acts.
        The evidence speaks for itself in that regard. The testimony by the child was such that
        the nature and scope of the sexual acts were clearly demonstrated or testified about,
        and the Court has considered each one of those sexual acts as described by the child.

               And the Court is also permitted to consider the extent of any residual physical
        or mental damage to the victim. And there isn’t any evidence of any residual physical
        or mental damage to the victim in terms of there being an expert to testify about that,
        or even the testimony of lay witnesses about any residual physical or mental damage.

              So, the Court has considered each of these and weighed them individually.
        Considered them both as they apply to both the benefit and detriment of the
        Defendant.

               The Court fixes the actual sentences for each of these crimes at eight years,
        and orders the sentences to be served consecutively for an effective 24 year sentence.

        On appeal, the Defendant does not contest the trial court’s imposition of any enhancement
factors;9 rather he challenges the imposition of consecutive sentencing. After thoroughly reviewing
the evidence presented at the sentencing hearing, we conclude that the trial court did not abuse its
discretion by ordering consecutive sentencing in this case. The record shows that the Defendant was
“convicted of two (2) or more statutory offenses involving the sexual abuse of a minor.” Tenn. Code
Ann. § 40-35-115(b)(5). The record also shows that the trial court properly considered the
aggravating circumstances under the statute. The evidence shows that the Defendant gained the trust


         9
           In his appellate brief, the Defendant failed to argue any sentencing issues other than whether the trial court
erred in ordering consecutive sentencing. Accordingly, we conclude that the Defendant has waived any other sentencing
issues. Tenn. R. App. P. 13(b); Tenn. Ct. Crim. App. R. 10(b). Further, as noted above, Blakely does not apply to this
case.



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of A.G. and his family and then abused that trust by sexually molesting A.G. The undetected sexual
abuse occurred during 1997 and 1998 over an extended time-span, with two of the instances of sexual
abuse occurring during the school year and one summer passing between the first and second
incidents of sexual abuse. A.G. testified that the Defendant touched his penis on at least two
occasions, performed oral sex on him once, and forced A.G. to perform oral sex on him once. No
evidence was presented of any “residual, physical and mental damage to the victim.” Accordingly,
after thoroughly reviewing the record, we conclude that the trial court did not abuse its discretion by
imposing consecutive sentencing in this case. Therefore, because we reversed the Defendant’s
conviction in Count 1, the Defendant’s remaining convictions in Counts 2 and 3 will be served
consecutively, for an effective sentence of sixteen years.

                                          III. Conclusion

        In accordance with the foregoing authorities and reasoning, we AFFIRM the trial court’s
judgments for Counts 2 and 3. We REVERSE the trial court’s judgment for Count 1 and VACATE
the eight year sentence imposed for that conviction.



                                                        ___________________________________
                                                        ROBERT W. WEDEMEYER, JUDGE




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