           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT NASHVILLE          FILED
                           OCTOBER 1998 SESSION
                                                        January 27, 1999

                                                      Cecil W. Crowson
                                                     Appellate Court Clerk
STATE OF TENNESSEE,                   )
                                      )    NO. 01C01-9709-CC-00405
      Appellee,                       )
                                      )    BEDFORD COUNTY
VS.                                   )
                                      )    HON. CHARLES LEE,
JOHNNY LEE HINES,                     )    JUDGE
                                      )
      Appellant.                      )    (Rape of a Child; Statutory Rape)



FOR THE APPELLANT:                         FOR THE APPELLEE:

GREGORY D. SMITH                           JOHN KNOX WALKUP
(On Appeal)                                Attorney General and Reporter
Contract Appellate Defender
One Public Square, Suite 321               DARYL J. BRAND
Clarksville, TN 37040                      Assistant Attorney General
                                           Cordell Hull Building, 2nd Floor
MICHAEL D. RANDLES                         425 Fifth Avenue North
(Trial and Appeal)                         Nashville, TN 37243-0493
Assistant District Public Defender
105 South Main Street                      WILLIAM MICHAEL MCCOWN
Fayetteville, TN 37334                     District Attorney General

                                           CHARLES CRAWFORD
                                           HOLLY HEWGLEY
                                           Assistant District Attorney General
                                           One Public Square, Ste. 100
                                           Shelbyville, TN 37160-3953




OPINION FILED:



AFFIRMED IN PART; REVERSED IN PART; REMANDED



JOE G. RILEY,
JUDGE
                                     OPINION


       Johnny Lee Hines was convicted by a Bedford County jury of fifteen counts of

statutory rape, see Tenn. Code Ann. § 39-13-506, and thirteen counts of rape of a

child, see Tenn. Code Ann. § 39-13-522. He received an effective sentence of 47½

years. He appeals, arguing that the trial court erred in (1) not granting a mistrial

following objectionable testimony by the victim and (2) failing to grant a judgment of

acquittal on all counts except those for which the state identified specific incidents of

criminal conduct. For the reasons set forth below, we affirm in part, reverse in part,

and remand for resentencing.



                                     INDICTMENT



       The appellant was indicted for 106 counts of sexual offenses involving multiple

minor victims. Of these, twenty-nine counts (numbered 1-13 and 91-106) pertaining

to a single victim were severed and tried to a jury. The instant case deals only with

these twenty-nine counts.

       These counts charged the occurrence of one sexual offense each month from

May 1994 through August 1996. Because the victim became thirteen years of age

during May 1995, counts 1-13, covering the period from May 1994 through May 1995,

charged the rape of a child, and counts 91-106, covering May 1995 through August

1996, charged statutory rape. Both crimes were charged for the victim’s birth month

as counts 13 and 91, respectively.



                              BILL OF PARTICULARS



       Due to the nature of the indictment, the defendant filed a motion for a bill of

particulars. Ultimately, the state described only four specific incidents; namely, rape

of a child in March 1995 as contained in Count 11, and three statutory rapes in June

1995, May 1996, and August 1996, as contained in Counts 92, 103 and 106,




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respectively. The state indicated in its response that it could not “narrow with any

greater specificity the specific date and time for the other counts of the indictment.”



                                     TRIAL ELECTIONS



        At trial, the state presented specific proof as to the four offenses specified in

its bill of particulars--Counts 11, 92, 103, and 106. As for the remaining counts, the

victim testified that from May 1994 through August 1996, the appellant had sex with

her every day except during her menstrual cycle or when her parents were at home.

        At the close of the state’s proof, the state elected to proceed only on the four

counts for which it had specifically identified the incidents of the offenses. However,

the trial court suggested that the state proceed to verdict on all counts and specify

the fifteenth of each month for the occurrence of each of the non-specific counts.

The state related that it was “perfectly content” with this suggestion.

        After the state elected the fifteenth of each month as the alleged offense date,

the court withdrew the statutory rape count for May 1995.1                   The jury did not,

therefore, return a verdict on count 91. Nevertheless, apparently by oversight, the

trial court completed a judgment sheet on count 91, indicating a conviction. We

vacate the trial court’s judgment convicting the appellant of count 91, statutory rape.



                               PREJUDICIAL TESTIMONY



        The appellant first argues that the trial court erred in failing to grant a mistrial

following two instances of objectionable testimony by the victim. In the first instance,

the victim testified that the appellant had baby-sat her, her brother and sister, and

other children. The victim then stated that the appellant “was messing around with

us.” (emphasis added). The state asked what she meant by “messing around,” and

the victim responded, “Having sex.”


        1
           As noted above, the indictment charged both statutory rape and the rape of a child for
May 1995. The victim became thirteen years old on May 18, 1995. Therefore, consistent with the
pattern of charging only one offense per month, the submitted charge for May 15, 1995, was rape of
a child, not s tatutory rape . See Tenn. Code Ann. §§ 39-13-506; 39-13-522.

                                                3
       Because the charges relating to other victims had been severed, the defense

objected and argued this testimony impermissibly suggested that the appellant had

sexually offended other children. Defendant moved for a mistrial. The trial court

sustained the objection and offered a curative instruction, which the defense

declined. However, the court denied the defense’s motion for a mistrial.

       The second instance occurred a few moments later, still during direct

examination of the victim. The victim was asked whether the appellant was the only

person who had ever had sex with her. She responded that there had been another

man. The state then asked what had happened to this man, and the victim stated,

“He got put in the penitentiary.” Upon objection, the trial court found that the

testimony was both hearsay and irrelevant and sustained the objection. The trial

court again overruled the defense’s motion for a mistrial. The defense did not

request a curative instruction.

       A mistrial will be granted only in cases of manifest necessity. State v. Mounce,

859 S.W.2d 319, 321 (Tenn. 1993).              It is generally appropriate only when

continuation of the trial would result in a miscarriage of justice. State v. Williams, 929

S.W.2d 385, 388 (Tenn. Crim. App. 1996). “The burden of establishing ‘manifest

necessity’ lies with the appellant.” Id. Whether a mistrial is warranted is a decision

entrusted to the sound discretion of the trial judge. Mounce, 859 S.W.2d at 322;

Williams, 929 S.W.2d at 388. We “will not interfere with the exercise of this discretion

absent clear abuse appearing on the face of the record.” State v. McPherson, 882

S.W.2d 365, 370 (Tenn. Crim. App. 1994).

       In both instances of which the appellant complains, the trial court determined

that although the victim’s testimony was improper, a mistrial was not warranted. As

to the first incident, the trial judge reasoned:

           Now, it seems to the Court that this case . . . is going to be a
           question of whether the jury believes the allegations by the
           State’s main witness or believes the defendant. And
           consequently, with this particular statement made, if the State
           doesn’t produce--and they will not be allowed to produce--any
           evidence that would corroborate that particular statement, that
           would seem to inure to the benefit of the defendant. At least
           that if the witness says, “I said this.” And if the State doesn’t
           produce any evidence to the jury that that, in fact, did happen,
           that would seem to inure to the benefit of the defendant given

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          the status of the case now and given that this appears as
          though it’s going to be a straight credibility-of-the-witnesses
          type of situation.
                  . . . . [S]ince there are no details and there will be no
          details of the general statement made by the witness, it does
          not rise to the level at this time to justify a granting of a mistrial.


       Regarding the defense’s second motion for a mistrial, the trial judge found

that, at worse, the testimony impermissibly bolstered the victim’s credibility. That is,

because the conviction proved the reliability of her prior accusation, it tended to

suggest the reliability of her present accusation. The request for mistrial was denied.

       Neither incident, when considered as a whole and in light of the totality of the

evidence, was so prejudicial as to preclude a fair trial. The record demonstrates that

the trial judge carefully considered each incident, and his decision not to grant a

mistrial did not approach a clear abuse of discretion.

       In addition, the defense declined a curative instruction for the first incident and

failed to request a curative instruction for the second incident. In a case involving

similar circumstances, this Court noted that, while the decision not to request a

curative instruction may be understandable as a tactical matter, “an accused is not

entitled to relief when he fails ‘to take whatever action . . . reasonably available to

prevent or nullify the harmful effect of an error.’” McPherson, 882 S.W.2d at 371

(quoting Tenn. R. App. P. 36(a)).

       The appellant’s first issue is without merit.



                         SUFFICIENCY OF THE EVIDENCE



       The appellant next argues that the trial court erred in failing to grant a

judgment of acquittal on each of the counts for which the state failed to identify and

prove specific incidents of criminal conduct. The appellant presses this issue as an

“election of offenses” problem, while the state addresses it as a question of

sufficiency of the evidence. Although we agree with the state that the issue is




                                             5
ultimately more akin to a question of sufficiency of the evidence,2 election concerns

are certainly interrelated.

        “‘[T]he purpose of election is to ensure 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.’” State v. Walton, 958

S.W.2d 724, 727 (Tenn. 1997) (quoting State v. Shelton, 851 S.W.2d 134, 138

(Tenn. 1993)). In addition to jury unanimity, the requirement of election serves two

other concerns: “(1) to enable the defendant to prepare for and defend against the

specific charge(s); [and] (2) to protect the defendant from double-jeopardy by

individualization of the issue.” Tidwell v. State, 922 S.W.2d 497, 500 (Tenn. 1996).

        In making an election, the state is not required to identify the particular date

of the chosen offense, as the time of the offense is often immaterial. Shelton, 851

S.W.2d at 137. Any description that will identify the chosen offense will suffice. Id.

at 138. In the case at bar the state at the suggestion of the trial court elected

particular dates.

        The election of particular dates satisfies the election requirement and would

ordinarily present no problem. However, the offense must be proven in accordance

with the election, i.e., to have occurred on that date. If a jury is allowed to convict

without specific evidence supporting the election, then the election is superficial and

meaningless. Accordingly, while we find that the state’s election was, in form,

sufficient, we must determine whether the offenses as elected were supported by the

evidence.

        When considering the sufficiency of evidence, this Court must determine

whether, after viewing the evidence in a light most favorable to the state, any rational

trier of fact could have found the essential elements of a crime beyond a reasonable

doubt. See e.g., State v. Duncan, 698 S.W.2d 63, 67 (Tenn. 1985); Tenn. R. App.

P. 13(e). Proof of the specific date of an offense is not, of course, a statutory

element of an offense. Rather, the identification of, and distinction among, alleged


        2
         If the jury only intended to confirm that the appellant committed an offense each month, then
this would be an election/unanimity concern; if, however, the jury found, as the verdicts indicate, that
the offenses occurred on the fiftee nth of each mo nth, th en th is is a s uffic ienc y prob lem . W e will
presum e that the ve rdicts m ean wh at they say.

                                                    6
incidents in multiple sex offense cases is required primarily to ensure unanimity of a

verdict.

           Thus, with regard to the election of offenses, the standard for sufficiency of

the evidence applies to the designation of offenses as though it were an element of

the offenses. Not only must the state’s election identify and distinguish offenses

sufficiently to allow the trier of fact to render discrete and unanimous verdicts on

each, the state must obviously support this election with evidence sufficient for a

reasonable trier of fact to find that the offenses occurred as elected beyond a

reasonable doubt. In the present case, because the state made no attempt to prove

that the offenses actually occurred on the fifteenth of each month as was elected, this

standard has not been met.

       Looking at the evidence in a light most favorable to the state, the victim’s

testimony does not establish sexual misconduct on the fifteenth of each month.

Although the victim testified that the sexual misconduct occurred almost daily, she

stated it did not occur on days when her parents were home or on days during her

menstrual cycle. There was no proof as to whether her parents were home or

whether she was in her menstrual cycle on the fifteenth of any given month. Thus,

one must speculate to determine if sexual misconduct occurred on the fifteenth of

any given month. Although the jury could have concluded, and obviously did

conclude, that the victim was violated one or more times each month, it could not

conclude that a violation took place on the fifteenth of any given month as elected by

the state.

       The state was correct when it initially conceded that it could not proceed on

these non-specific counts. Although the designation of the fifteenth of each month

was an election, the proof does not support the election.



                                      CONCLUSION



       We, therefore, reverse and dismiss the appellant’s convictions as to counts 1

through 10, 12, 13, 93 through 102, 104, and 105; the judgment of conviction on



                                             7
count 91 is vacated; and the judgments convicting the appellant of counts 11, 92,

103, and 106 are affirmed. We remand for resentencing in light of these reversals.




                                            _______________________________
                                            JOE G. RILEY, JUDGE




CONCUR:



    (Not Participating)
PAUL G. SUMMERS, JUDGE



_____________________________
JOSEPH M. TIPTON, JUDGE




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