         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT KNOXVILLE
                                                      FILED
                                                        June 26, 1998
                           MARCH 1998 SESSION
                                                     Cecil Crowson, Jr.
                                                      Appellate C ourt Clerk

STATE OF TENNESSEE,            )
                               ) C.C.A. No. 03C01-9705-CR-00165
     Appellee,                 )
                               ) McMinn County
V.                             )
                               ) Honorable Carroll L. Ross, Judge
J. C. MEYER,                   )
                               ) (Rape of a Child - Two Counts)
     Appellant.                )




FOR THE APPELLANT:                FOR THE APPELLEE:

Charles M. Corn                   John Knox Walkup
District Public Defender          Attorney General & Reporter
P.O. Box 1453
Cleveland, TN 37364-1453          Elizabeth B. Marney
                                  Assistant Attorney General
                                  Criminal Justice Division
                                  425 Fifth Avenue North
                                  Nashville, TN 37243-0493

                                  Jerry N. Estes
                                  District Attorney General

                                  Richard Newman
                                  Assistant District Attorney General
                                  P.O. Box 647
                                  Athens, TN 37303-0647




OPINION FILED: ___________________


AFFIRMED


PAUL G. SUMMERS,
Judge
                                     OPINION

       J. C. Meyer, the appellant, was convicted by a jury of two counts of rape

of a child. The criminal court denied the appellant’s motion for a new trial, and

he appealed. He raises several issues for our review: (1) whether the trial court

erred in denying the appellant’s motion to sever the two counts of the indictment;

(2) whether the court erred in failing to order the state to file an additional bill of

particulars; (3) whether the court erred in allowing the state to introduce into

evidence three incidents of sexual penetration when the appellant was only

charged with two counts; (4) whether the trial court erred in instructing the jury

that the appellant’s earliest release date would be after serving 5.73 years in

prison; and (5) whether the evidence was sufficient to support the convictions.



                          PROCEDURAL BACKGROUND

       In March 1996, the appellant was indicted on four counts of the rape of a

child. The first two counts were dismissed in August 1996. The third and fourth

counts alleged that the rapes occurred on or between January 1995 and May

1995. In July 1996, the appellant filed a motion for a bill of particulars, asking

the court to order the state to provide the date, time, and place of each rape, the

manner of the rape, and any known witnesses. The state filed a bill of

particulars specifying that between January and May 1995, while living on Circle

Drive in Etowa, Tennessee, the appellant raped the victim, a child less than

thirteen years of age. The penetration was orally and vaginally. The state

further informed the appellant that the appellant’s daughter, a minor, and the

victim’s brother, a minor, may have been present when the alleged rapes

occurred and that they might be called as witnesses.



       On September 13, 1996, the appellant filed a motion for a more complete

bill of particulars, requesting a specific description of when the crimes occurred.

The appellant also filed a motion to sever the two counts of rape for trial.




                                           -2-
       On September 30, 1996, the court held a hearing on the appellant’s

motion to sever and his motion for a more complete bill of particulars. The court

denied the appellant’s motion to sever the counts in the indictment, in part

because the counts involved the same victim. On October 1, 1996, the state

amended the indictment to allege that the two counts of rape occurred on, or

between, November 1994 and March 1, 1995. The appellant filed a motion

requesting the court to charge the jury on the applicable range of punishments.

The appellant also filed a motion to exclude all evidence of sexual conduct other

than evidence of the two acts of sexual penetration alleged in the indictment.



                                     EVIDENCE

       At trial, the victim, an eight-year-old female, testified that from November

1994 through February 1995, she lived with her mother, brother, and her

mother’s boyfriend, the appellant. They lived in a three-bedroom apartment on

Circle Drive in McMinn County. The victim testified that sometime near

Christmas of 1994, she was lying in her mother’s bed. Her mother was asleep in

another room. The victim testified that the appellant came into the room, locked

the door, took off his shorts, kissed her, and lay on top of her. The victim

testified that the appellant rubbed the “private place “ between her legs with his

hands. She testified that the appellant “stuck his private in mine.” The victim

testified that she told the appellant to get off of her, and he did.



       The victim testified that the appellant approached her on a second

occasion and “did the same thing, except when I told him to stop he didn’t stop.”

She testified that this occurred in her mother’s bedroom. She testified that the

appellant placed his “private” in her “private.” She testified that the appellant

also stuck his “private” in her mouth. The victim said that it hurt when the

appellant stuck his “private” in her “private.” She stated that she noticed blood

on the bed. The victim testified that the appellant told her not to tell anyone or

he would go to jail, and, that he would beat her mother. The victim testified that



                                          -3-
she told her mother what the appellant had done to her, but that her mother told

her to say that her brother or Uncle Terry abused her. The victim testified that no

one else had ever sexually abused her. She stated that the sexual contact

occurred once or twice when there was a Christmas tree in the apartment.



      The appellant and the victim’s mother were evicted from Circle Drive in

February 1995 and went to Florida in May or June of 1995. During part of this

time, the victim lived with her maternal grandmother, Shirley Patton. Shortly

after moving to Florida, the victim’s mother returned to Tennessee to bring the

victim and the victim’s brother to Florida. The appellant’s daughter, Melissa

Meyer, and the victim’s uncle, Terry Thompson, also lived with them at various

times in Florida. In October 1995, the victim’s grandmother brought the victim

and her brother back to Tennessee. The parties stipulated that if Ricky

Thompson, the victim’s uncle, were present that he would testify that on October

24, 1995, the day after the victim returned from Florida, she told Ricky that the

appellant had hurt her in her privates. Ricky told the victim’s grandmother and

Patty DeBoard who took her to Dr. Iris Snyder the next morning.



       Dr. Snyder, a pediatrician and the victim’s doctor, examined the victim.

Dr. Snyder testified that the examination showed positive findings of sexual

abuse, including an enlarged hymenal opening, small tears in the hymen, and a

thin hymen. Dr. Snyder testified that these findings were consistent with past

sexual abuse. Dr. Snyder testified that she could not determine exactly when the

abuse occurred, but that the injuries were at least a month old.



       The victim made a statement to a Department of Human Services

employee. Both the state and the appellant had access to this statement before

trial, and it was introduced into evidence. The defense brought out the

inconsistencies in the statement and the victim’s trial testimony. The victim said

in her statement that abuse occurred while her mother was at work at the Waffle



                                        -4-
House both in Tennessee and Florida. At trial, the victim testified that her

mother only worked at the Waffle House in Florida. The victim’s mother testified

that she worked at the Waffle House in Florida, but not in Tennessee.        Next,

the victim stated that the appellant’s daughter was present when a rape

occurred. The victim said in her statement and at trial that the appellant’s

daughter visited the appellant in Florida, but that she had never been to

Tennessee. The victim’s mother testified that the appellant’s daughter had never

been to the Circle Drive apartment in Tennessee. Lastly, the defense introduced

letters written by the victim to the appellant while the appellant was in jail. In the

letters, the victim said that she missed the appellant, that he was the best dad

that she had ever had, that she loved him and wanted to see him. The victim

testified that she wrote the letters before the rapes occurred. The victim’s

mother testified that she mailed the letters after the rapes occurred, implying that

the letters were written after the rapes.



       At the close of the state’s proof, the state elected to proceed on one count

of vaginal rape and one count of oral rape. The court denied the appellant’s

motion for judgment of acquittal. The victim’s mother, Donna, and the appellant

testified for the defense. The victim’s mother testified that she had never seen

the appellant act negatively in any way toward the victim. She testified that she

made Terry Thompson, her brother, leave the Florida residence because he

would not leave the victim alone, implying that he had sexually abused the victim.

She testified that Terry had sexually abused her during their childhood. Donna’s

mother testified that she did not believe that Terry abused Donna because

Donna never told her about it.



       The appellant denied that he raped the victim. On direct examination, the

appellant testified that he has convictions for robbery with a firearm, two counts

of conspiracy to commit robbery, common law robbery, aggravated burglary, and

theft. He testified that he left Tennessee while on bond for the aggravated



                                            -5-
burglary because his mother was dying. The appellant was extradited back to

Tennessee. He testified that Donna’s mother hated him. The appellant testified

that he never locked the victim’s brother out of the house. On rebuttal, the

victim’s brother testified that on one or two occasions the victim and the

appellant were in the house alone and that sometimes the appellant would not

let the victim play outside. The victim’s brother testified that he could not get in

the house on occasion, but that he thought that the door locked automatically.



                                MOTION TO SEVER

       The court denied the appellant’s motion to sever the counts in the

indictment. Tennessee Rule of Criminal Procedure 8(b) provides that the state

may join two or more offenses in the same indictment if the offenses constitute

parts of a common scheme or plan or if they are of the same or similar character.

Tennessee Rule of Criminal Procedure 14(b), however, provides that the

defendant shall have a severance of the offenses unless the offenses are part of

a common scheme or plan and the evidence of one would be admissible upon

the trial of the others.



       The appellant argues that the two alleged acts of rape were not part of a

common scheme or plan because the acts were substantially disconnected in

time and were not part of the same criminal episode. W e disagree. There are

three categories of common scheme or plan evidence: (1) distinctive designs, or

signature crimes; (2) a larger continuing plan or conspiracy; and (3) the same

transaction. State v. Hoyt, 928 S.W.2d 935, 943 (Tenn. Crim. App. 1995). In

Hoyt, the Court said:

       To fall within the first category of ‘distinctive design or
       signature,’ similar crimes committed by the defendant ‘are
       admissible to show the defendant's modus operandi from
       which it may be inferred that the defendant probably committed
       the nearly identical crime for which he or she is on trial.’
       However, the modus operandi must be so unique and
       distinctive as to be like a signature, i.e., it must be probative of
       the defendant's identity. To determine whether certain crimes
       fit into this category, ‘the test is not whether there was



                                       -6-
       evidence that a defendant committed both crimes, but whether
       there was a unique method used in committing the crimes.’

Hoyt, 928 S.W.2d at 943 (citations omitted).



       In order to be 'parts of a common scheme or plan' as
       contemplated by Rules 8(b) and 14(b)(1), two or more sets of
       offenses must be so similar in modus operandi and occur
       within such a relatively close proximity of time and location to
       each other that there can be little doubt that the offenses were
       committed by the same person(s).

State v. Peacock, 638 S.W.2d 837, 840 (Tenn. Crim. App. 1982).



       The similarities between the offenses alleged in counts three and four are

sufficient to establish a distinctive design. The victim is the same in each

offense. The offenses occurred within a relatively short period of time, four

months. The circumstances surrounding the offenses are similar. Both offenses

occurred in the same room and in the same house. Both rapes occurred when

the appellant had the opportunity to be alone with the victim.



       Next, we must determine the admissibility of evidence of one crime in the

trial of the other. In determining admissibility, the trial court must comply with

the procedural requirements of Tennessee Rule of Evidence 404(b). Rule

404(b) provides that evidence of other crimes, wrongs, or acts is not admissible

to prove the character of a person in order to show action in conformity with the

character trait. Such evidence, however, may be admissible for other purposes if

its probative value is outweighed by the danger of unfair prejudice. Evidence of

other crimes is admissible to show a common scheme or plan for the

commission of two or more crimes so related to each other that proof of one

tends to establish the other. Hoyt, 928 S.W.2d at 944. Therefore, the evidence

of the offense in count three would be admissible in the trial on count four and

vice versa.




                                         -7-
        Lastly, we must determine whether the probative value of the offense is

outweighed by the danger of unfair prejudice to the appellant. The similarity of

the acts makes the probative value of the evidence particularly significant. Hoyt,

928 S.W.2d at 944 (quoting State v. McKnight, 900 S.W.2d 36, 51 (Tenn. Crim.

App. 1994)). The appellant made no showing of unfair prejudice. The danger of

unfair prejudice does not outweigh the probative value of the evidence of each

alleged rape. Once again, the victim is the same, the time period is relatively

short, the location of the rapes is the same, and the nature of the rapes is the

same. The trial court properly denied the appellant’s motion to sever.



                              BILL OF PARTICULARS

       The appellant argues that the court erred in denying his motion for a more

complete bill of particulars. The purpose of the bill of particulars is to provide

information about the details of the charge when necessary for a defendant to

prepare his or her defense, to avoid prejudicial surprise at trial, and to enable the

defendant to preserve a plea of double jeopardy. 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).



       Generally, only after a trial, will the court 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 time and place of the offense, and how

this evidence relates to the actual theory of defense.” Id. at 600-01(quoting

State v. Byrd, 820 S.W.2d 739, 741 (Tenn. 1991)). Although a court should

make every effort to see that the prosecution supplies the necessary information

in the bill of particulars, in cases involving child sexual abuse, the prosecution



                                           -8-
may be unable to supply all the specifics requested by the defense simply

because of the age of the child. Id. at 600.



        At the hearing, the appellant was concerned that the state limit its proof

so it did not unduly surprise the appellant at trial. The court informed both

parties that they could review the Department of Human Services file. The

assistant district attorney informed the appellant at the hearing that the two

counts of rape involved both vaginal and oral penetration on both occasions.

The appellant’s attorney responded that he believed that he had everything he

needed to try the case, but asked the state to put the new information in writing.

Although the state did not file a second bill of particulars, it is clear from the

record that the state gave the appellant all the information that was available on

the alleged offenses.



        On appeal, the appellant argues that the information supplied by the state

did not describe the number of penetrations or whether there were single or

multiple criminal episodes. As argued by the state, the appellant has failed to

articulate how the lack of information, if this information was lacking, prevented

the appellant from preparing his defense, surprised him at trial, or subjected him

to double jeopardy. The appellant has not offered a defense that would have

been available if the state could have offered greater specificity. The information

provided by the state was sufficient to allow the appellant to prepare his defense

and to protect him from prejudicial surprise at trial. The state provided the

appellant with a four-month time span, the location, and the nature of the rapes.

The state gave the appellant all the information that it had. We find no merit to

this issue.



                               EVIDENTIARY ISSUE

       Next, the appellant argues that the trial court erred in allowing the state to

introduce evidence of three sexual penetrations when the appellant was only



                                          -9-
charged with two counts of rape of a child. He cites State v. Rickman, 876

S.W.2d 824 (Tenn. 1994), but does not explain how the case supports his

argument. In Rickman, the Tennessee Supreme Court refused to adopt a broad

sex crimes exception to Rule 404(b) of the Tennessee Rules of Evidence. That

rule provides that evidence of other crimes, wrongs or acts are not admissible to

prove the character of a person in order to show action in conformity with the

character trait on a particular occasion. The Court, however, reaffirmed the

special rule of “admitting evidence of other sex crimes when an indictment is not

time specific and when the evidence relates to sex crimes that allegedly occurred

during the time as charged in the indictment. “ Rickman, 876 S.W.2d at 829.

The Court said that “[I]n such cases, the State must elect at the close of its

proof-in-chief as to the particular incident for which a conviction is being sought.”

Id. “Unlike evidence of prior crimes excluded by Bunch and Tenn. R. Evid.

404(a) & (b), evidence of a prior sex crime that is necessarily included within the

charge of the indictment is also necessarily relevant to the issues being tried

and, therefore, is admissible.” Id.



       We find no merit to the appellant’s argument. The state produced

evidence of one oral and two vaginal penetrations. All three acts occurred during

the time period alleged in the indictment. At the close of its proof-in-chief, the

state elected to seek convictions for one oral and one vaginal penetration. The

facts of this case fit within the special rule enunciated by the Court in Rickman.



                              JURY INSTRUCTIONS

       The appellant next argues that the court erred in charging the jury that the

appellant’s earliest release date, if convicted of the rape of a child, would be after

serving 5.73 years in prison, requiring a reversal of the jury’s verdict. Pursuant to

Tennessee Code Annotated §§ 40-35-201(b)(1) & (2)(A)(I) (Supp. 1995), the

appellant requested the court to instruct the jury on the possible penalties for the

offense charged and all lesser included offenses. When a charge including



                                        -10-
possible penalties has been requested pursuant to subdivision (b)(1), the judge

shall also include in the instructions an approximate calculation of the minimum

number of years a person sentenced to imprisonment for the offense charged

and lesser included offenses must serve before reaching such person's earliest

release eligibility date. Tenn. Code Ann. § 40-35-201(2)(A)(I).



       The court instructed the jury that the range of punishment for the offense

of rape of a child was twenty-five to forty years in the state penitentiary. The

court erroneously instructed the jury that the minimum number of years that a

person sentenced to imprisonment for the rape of a child would have to serve

before reaching the earliest release eligibility date was 5.73 years. A person

convicted of the rape of a child must serve the entire sentence imposed by the

court undiminished by any sentence reduction credits. Tenn. Code Ann. §§ 40-

35-501(I)(3)(Supp. 1995), 39-13-523(b)(Supp. 1995).



       Although the court’s instruction was incorrect, the error was harmless; it

does not require reversal. Tennessee Rule of Appellate Procedure 36(b)

provides that no judgment of conviction shall be reversed on appeal except for

errors that affirmatively appear to have affected the result of the trial on the

merits. The appellant does not explain how the erroneous jury instruction

affected the result of his trial. The court instructed the jury on the elements of

rape of a child and the lesser included offense of aggravated sexual battery.

Aggravated sexual battery is unlawful sexual contact. Tenn. Code Ann. § 39-13-

504 (Supp. 1995). The evidence of penetration was substantial. We find that

the error does not mandate reversal.



                        SUFFICIENCY OF THE EVIDENCE

       The appellant argues that the evidence is insufficient to support the jury’s

verdict for several reasons: (1) the medical evidence did not establish when the

alleged abuse occurred; (2) the victim testified that the event was painful, but did



                                         -11-
not complain of pain when she had a chance to do so; (3) the child was not

taken to a doctor until approximately seven months after the alleged event; (4) at

the time of the complaint, the child was in the custody of an individual who was

hostile to the appellant; (5) the conviction was based upon the testimony of a

child who had been overly coached, after the “incidents”; (6) the victim wrote

letters expressing affection for the appellant; and (7) the state did not prove

venue.



       When an accused challenges the sufficiency of the convicting evidence,

we must review the evidence in the light most favorable to the prosecution in

determining whether "any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443

U.S. 307, 319 (1979). We do not reweigh or re-evaluate the evidence and are

required to afford the state the strongest legitimate view of the proof contained in

the record as well as all reasonable and legitimate inferences which may be

drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).



       Questions concerning the credibility of witnesses, the weight and value to

be given to the evidence, as well as factual issues raised by the evidence are

resolved by the trier of fact, not this Court. Id. A guilty verdict rendered by the

jury and approved by the trial judge accredits the testimony of the witnesses for

the state, and a presumption of guilt replaces the presumption of innocence.

State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). It is the appellant's burden

to illustrate to this Court that the evidence preponderates against the guilty

verdict in favor of his or her innocence. Id.



       The issues raised by the appellant were for the jury to decide. Both the

state and the defense did a fine job of raising and addressing the issues in this

case. The testimonies of the victim and her treating physician were accredited




                                        -12-
by the jury and are sufficient evidence to support the jury’s verdict. This Court

finds the evidence to be legally sufficient to sustain the verdict of the jury.



                                   CONCLUSION

       This Court affirms the judgment of conviction on all counts.




                                             __________________________
                                             PAUL G. SUMMERS, Judge


CONCUR:




______________________________
JOHN H. PEAY, Judge




______________________________
CORNELIA A. CLARK, Special Judge




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