        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                  Assigned on Briefs February 23, 2010 at Knoxville

           STATE OF TENNESSEE v. WILLIE EARL BROWN, JR.

                 Appeal from the Criminal Court for Davidson County
                        No. 2006-C-1909 Steve Dozier, Judge




               No. M2009-00505-CCA-R3-CD - Filed November 5, 2010



Following a jury trial, the Defendant was convicted of 11 counts of rape of a child, a Class
A felony, and was sentenced to an effective sentence of 74 years. In this appeal as of right,
the Defendant contends that (1) the evidence was insufficient to sustain his convictions of
rape of a child in counts 13 and 14; (2) the Defendant’s conviction of rape of a child in
counts 4 and 5 violated the principles of double jeopardy; (3) the trial court erred in admitting
evidence of uncharged conduct in violation of Tennessee Rule of Evidence 404(b); (4) the
trial court erred in refusing to allow cross-examination of the victim regarding her pregnancy;
(5) the trial court erred in admitting statements from a clinical social worker that were not
obtained for the purpose of medical diagnosis and treatment; and (6) the trial court erred in
sentencing the Defendant. Following our review, we conclude that the trial court erroneously
admitted evidence of the Defendant’s uncharged sexual conduct with the victim and that this
error was not harmless. Accordingly, we reverse the judgments of the trial court and remand
the Defendant’s case for a new trial.

    Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court are
                           Reversed; Case Remanded.

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which J OSEPH M. T IPTON,
P.J., and N ORMA M CG EE O GLE, J., joined.

Laura Clift, District Public Defender; and Jeffrey A. DeVasher, Katie Bottom, and Aimee
Solway, Assistant Public Defenders, attorneys for appellant, Willie Earl Brown, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; and Sharon Reddick and Anton
Jackson, Assistant District Attorneys General, attorneys for appellee, State of Tennessee.
                                                  OPINION

       Ferrah Melissa Brown, the victim’s mother, testified that she has three children, A.G.,
C.B. and T.B.1 A.G. is Ferrah Brown’s oldest child and was born in 1994. A.G.’s father died
when she was very young, and Ferrah Brown married Charlie Brown, Sr. The Defendant is
Charlie Brown, Sr.’s brother and is married to a woman named Patricia Lynn Brown.

       Shortly after Ferrah Brown and Charlie Brown, Sr. were married, they moved to
Nashville, Tennessee. The Defendant and Patricia Brown moved to Nashville and lived with
them a few months later. They stayed with them for eight months and then moved to a house
approximately two minutes away from them. Ferrah Brown and her family moved
frequently, and the Defendant and Patricia Brown always moved to an apartment or house
near them.

       The periods of A.G.’s alleged abuse occurred when she was living in a trailer park in
Lebanon, Tennessee (Wilson County); when she was living in Nashville, Tennessee
(Davidson County) in an apartment complex named Village Trail; and when the Defendant
and Patricia Brown moved to Lavergne, Tennessee (Rutherford County). Ferrah Brown
confirmed the dates and various addresses during the time-frame of the alleged abuse. The
abuse charged in these indictments related to incidents occurring in Davidson County.

        Ferrah Brown and Charlie Brown, Sr. separated in 2004, and while they were
separated, the Defendant and Patricia Brown helped take care of the children during the day.
This occurred when Ferrah Brown was living in Village Trail and the Defendant lived one
street behind her on Brickmont Drive. Ferrah Brown stated that the Defendant and Patricia
Brown “put the kids on the bus and g[o]t them off the bus.” “[T]hey also came and got [the
children] on the weekends.” The children, A.G. and C.B., also went with the Defendant, who
was a truck driver, on trips for work. A.G. went on at least one trip alone with the
Defendant. At some point, the Defendant and Patricia Brown moved to Lavergne,
Tennessee. While in Lavergne, the Defendant picked up the children and took them to their
house in Lavergne, where the children would “see them like every weekend.”

       In Summer 2005, Ferrah Brown took the children with her to visit her mother,
Dorothy Mae Anderson, and sister, Eboni Anderson, in Louisville, Mississippi. While in
Mississippi, A.G. decided that she wanted to stay with Dorothy Anderson and go to school
in Mississippi. When Ferrah Brown told the Defendant that A.G. had stayed in Mississippi,
the Defendant “got kind of upset about it.”



        1
          This court refers to rape victims by their initials. We will also refer to her siblings by their initials
in order to provide further anonymity.
                                                       -2-
       On cross-examination, Ferrah Brown admitted that while she was separated from
Charlie Brown, Sr. for approximately two years, she lived next to Lekecia Anderson, who
also cared for her children. The children spent the night at Lekecia Anderson’s house
“[e]very now and then.” She also admitted that on one occasion, A.G. and the other children
stayed with James Miller, a man she was dating, while she “went to the store.” On redirect
examination, she stated that A.G. had never accused anyone except the Defendant of
molesting her.

        A.G., who was 14 at the time of the trial, testified that she and her brothers called the
Defendant “June Bug” or “June” and that she referred to Patricia Brown as “Lynn.” She
spent a lot of time with the Defendant and his wife because “they wanted [her and her
brothers] to come over to their house all the time.” When she was approximately eight or
nine, she went more often. She said that the Defendant first touched her “private parts” when
she was five. This occurred in the guest bedroom in the Defendant’s “trailer” in Lebanon,
Tennessee.

       A.G. testified that the Defendant also sexually penetrated her when she rode in the
Defendant’s semi-truck and went on trips with him for his job. She remembered that she
went on overnight trips with the Defendant, but she could not remember where they went.
She did remember that they went outside of Nashville. While on a trip with the Defendant,
the Defendant told A.G. “to pull [her] clothes off.” She then “laid on the bed[,] he stuck his
penis in [her,] and he started to . . . have sex with [her].” The Defendant also raped her when
others, C.B. and Patricia Brown, were riding in the truck with them.

       Relevant to the indicted offenses, A.G. identified a picture of the Defendant’s duplex
on Brickmont Drive as “Lynn and June’s house.” She lived “right down the street” from the
Defendant’s house. She and her brothers went to the Defendant’s house “like all the time.”
She spent more time with the Defendant and Lynn at the house on Brickmont Drive than she
did when he lived in any other house. When she was at the house, “Lynn wouldn’t stay that
much” because Lynn would “go get something from like a store.” A.G. said that the
Defendant sexually penetrated her while she visited him at the house on Brickmont Drive but
that he did not perform sexual acts with her each time she went to the house. Among other
instances of abuse, the Defendant touched her vagina with “[v]ibrators and his fingers.” The
Defendant touched A.G.’s vagina with his fingers “two times.”

        When the Defendant touched A.G., she was usually alone with the Defendant at his
house. She would be watching television in the living room, and the Defendant would tell
her to come back to his room. She knew that the Defendant wanted “[t]o have sex” with her
“[b]ecause he did it before, so [she] knew it was going to happen again.” When she would
arrive in the bedroom, the Defendant would tell her to “pull [her] clothes down.” The

                                               -3-
Defendant did not take his clothes off, and she was only told to take off her “panties.” After
she lay on the bed, the Defendant would “pull[] his penis out of his zipper part” and “st[i]ck
his penis in [her].” While he was sexually penetrating her, the Defendant would be “standing
up in front of [her]” as she was lying on her back. A.G. first stated that this happened so
many times that she could not count, but she stated that this happened “about ten [or] eleven
times.”

       A.G. testified that the Defendant also “tried to put his penis in [her] butt.” She was
unable to remember the day that this happened, but she did remember that the Defendant
“had some [O]rajel” and that “he tried to put the [O]rajel up [her] butt” before he tried to
penetrate her anus. “[H]e told [her] to turn over[,] and he tried to put the [O]rajel up [her]
butt. And then he tried to stick his penis in [her] butt but it wouldn’t go [because] it was
hurting.” The Defendant’s penis “went [inside] a little bit.” When A.G. “told him to stop,”
the Defendant stopped. The Defendant then “went back to the front of [her] and then started
from there again.” This happened in the Defendant’s bedroom while she was “[o]n the bed.”

       On other occasions, the Defendant also placed his penis in A.G.’s mouth when she
was in the Defendant’s bedroom. When this happened, A.G. would “be on [her] knees.” The
Defendant “would sit on the bed and pull his [penis] out and make [her] suck [his penis].”
The Defendant would give her “signals” indicating that he wanted her to perform fellatio.
He made her do this “[a]bout two times.” When this happened, a “white and kind of creamy-
looking” substance came out of his penis. The Defendant would use a towel to “catch it,”
but some of the substance also came out in A.G.’s mouth. A.G. said that the substance tasted
“[n]asty” and that she “would go to the bathroom and spit it out” so that she did not swallow
the substance.

        A.G. also testified that the Defendant put his fingers in her vagina. He put his fingers
in her vagina “[m]aybe two times” when she was on the bed in the Defendant’s bedroom in
the house on Brickmont Drive. He put his fingers in her vagina “[r]ight before” he put his
penis in her vagina. She said that when he put his fingers in her vagina, it felt “like he was
cutting [her] because he had long nails.” She said that it felt like “he was cutting my tissues
and stuff in the inside.”

         A.G. stated that the Defendant also had sex with her in the living room in the house
on Brickmont Drive right before he moved to Lavergne. This occurred at night when the
electricity was turned off at the house. The Defendant “brought [her] back to their house,”
and “it was real cold and there wasn’t no furniture.” The Defendant “put [her] on the floor
and . . . told [her] to take [her] pants off[,] and he put his penis inside [her vagina].” When
they were finished having sex, the Defendant “got up and [she saw] white stuff and then [the
Defendant] went to the bathroom and . . . got [the white stuff] out, in the toilet.”

                                              -4-
        She said that the Defendant also “stuck his penis in [her] vagina” in the bathroom on
the toilet when they were alone at the house on Brickmont Drive. The Defendant “was
sitting down and [she] was on top of him.” The toilet seat was down. A.G. was not wearing
any pants. The Defendant “had his clothes on but he unzipped the part to pull out his
[penis].”

        A.G. also said that the Defendant touched her with a vibrator.2 He “would lay the blue
towel down” and “would make [her] get on the blue towel so . . . the stuff wouldn’t get on
the bed” when he used the vibrator. A.G. described the vibrator as “pink and red” and “long
and it had like a thumb on the end, kinda like a long finger.” A.G. stated that she knew the
word vibrator because she “just knew” and that she first saw a vibrator when the Defendant
moved into the house on Brickmont Drive. The Defendant was the only one who ever
showed her a vibrator. She said that the vibrator “made like a whummmmmmmmmmmmm”
sound. The Defendant did not put the vibrator in her vagina, but he placed the vibrator on
her “feeling thing,” which is “the thing that’s on top” and near her “private part.” A.G. then
identified a photograph of the vibrator.

       A.G. testified that when the Defendant sexually penetrated her, it hurt “[m]ost of the
time.” However, she never told the Defendant to stop having sex with her. The Defendant
told her, “[D]on’t tell nobody or we’re both going to get in trouble.” When he told her that
she would get into trouble because they were having sex, she thought “[the Defendant] might
be right . . . [that she] might really get in trouble.”

       A.G. stated that C.B. and Patricia Brown saw the Defendant and the victim
performing sexual acts together. Patricia Brown saw A.G. performing oral sex on the
Defendant before the Defendant moved to the house on Brickmont Drive. After Patricia
Brown saw what was happening, the Defendant and Patricia Brown argued. The Defendant
apologized to A.G. and said that he would not have sex with her again. However, he sexually
penetrated her again in the house on Brickmont Drive.

       When the Defendant moved to Lavergne (Rutherford County), he continued to have
sex with her and use the vibrator with her. While in Rutherford County, C.B. walked in the
Defendant’s bedroom when the Defendant “was on top of [her] with his penis inside [her
vagina].” The Defendant told C.B. to leave.

      A.G. decided to stay with her grandmother because she was “tired” of “[the
Defendant] having sex with [her].” After she moved to Mississippi, the Defendant called her


        2
         Connie Pegram, who was a detective with the City of Lavergne in 2005, found a red vibrator while
participating in the execution of a search warrant of the Defendant’s house in Lavergne.
                                                  -5-
“[l]ike every other day” and asked if she had told anybody about their sexual relationship.
When she finally told her grandmother about it, she was taken to a doctor in Mississippi. She
did not tell anybody about the abuse until she told her grandmother because she was “scared”
that she would “get in trouble.”

        On cross-examination, A.G. admitted that she had not mentioned the Defendant’s use
of Orajel until “recently” because “some of this stuff just came back to [her].” She also
admitted that until recently, she had not talked about two of the rape allegations – the
incident in the living room or the incident in the bathroom. On redirect examination, A.G.
stated that she mentioned the Orajel when she was asked if the Defendant used anything
when having sex with her. However, nobody had ever asked her about having sex in the
bathroom until trial.

       C.B., who was ten years old at the time of trial, testified that A.G. is his sister. He
said that he spent time at the Defendant’s house when he “lived down the street from them,
like across the street.” Sometimes the Defendant would play with him, but other times, the
Defendant would be “watching [television] in his room.” When visiting at the Defendant’s
house, he saw the Defendant put his hands on his sister’s “[f]ront or back” when he went to
the Defendant’s room to ask for something. He walked in the room and saw A.G. “[l]aying
on the bed,” and the Defendant told him “to go downstairs.” 3

       He stated that he also saw the Defendant touching A.G. in the Defendant’s truck when
they were on trips. He said that he “saw some of [the Defendant’s] private parts somewhere
on her.” He said that the Defendant “did [his] sister from the front.” He then demonstrated
what he observed using two stuffed bears. He also identified a picture that he drew of the
Defendant’s truck and then pointed to where he was when he saw the Defendant with A.G.

        C.B. testified that he also visited the Defendant when the Defendant moved to the
house in Rutherford County. The Defendant’s house had an upstairs area and a downstairs
area. He and A.G. stayed the night at the Defendant’s house with the Defendant and Patricia
Brown. While at the house in Rutherford County, he saw the Defendant on the bed with his
sister. He saw the Defendant laying behind A.G. on the bed. He used the bears again to
demonstrate what he observed. He also saw “nasty movies” while at the Defendant’s house.

        He stated that he never told anyone about what he observed because he was scared
that “June would get [him].” He testified that he remembered a time in which Patricia Brown



        3
         From the progression of the testimony it appears that C.B. is referring to an incident that happened
at the house on Brickmont Drive; however, he testified that the house in Lavergne had an upstairs, and the
photograph of the house on Brickmont Drive portrays a single-level home.
                                                    -6-
came home when he, A.G., and the Defendant were at the house. He was in the living room,
and A.G. and the Defendant were in the bedroom. When Patricia Brown opened the door to
the bedroom, she “started to cry.” 4

       On cross-examination, he said that the Defendant and A.G. both had their clothes on
when he saw them in the truck and in the bedroom at the houses in Davidson and Rutherford
Counties. He said that Patricia Brown was not home either time that he saw the Defendant
with A.G. in each house. When he saw the Defendant with A.G. at the house in Davidson
County, the Defendant was standing with his hands “beside her stomach” while A.G. was
lying on the bed with her clothes on.

        Eboni and Dorothy Anderson, the victim’s aunt and grandmother, testified that the
Defendant called looking for A.G. and that they allowed the Defendant to talk with A.G.
when he called. The Defendant had never called either of them before A.G. came to
Mississippi. Eboni Anderson said that the Defendant called A.G. “[o]ne to three times a
day.” She also said that the Defendant called her after A.G. had been staying there for two
weeks and asked her why Dorothy Anderson had accused him of “hitting on [the victim].”
The Defendant denied touching A.G., and she told him that she would “get to the bottom of
it and see what’s going on.” On cross-examination, Eboni Anderson said that the Defendant
called A.G. from “five or six” different numbers and that the Defendant always identified
himself.

        Dorothy Anderson testified that when A.G. began to receive a lot of telephone calls
from the Defendant, she became worried. She told A.G. that the Defendant “had no business
calling her like that.” Dorothy Anderson called the last number that the Defendant had called
from, which happened to be Lekecia Anderson’s telephone. Nobody answered the telephone,
so she left the Defendant a message. In her message, she told the Defendant that “he had no
business calling [A.G.]” and that the only reason for him to call her would be “if there was
something funny going on.” The Defendant returned her message and “tried to convince
[her] that he would never touch [A.G. or] hurt her, in any kind of way.”

        After speaking with the Defendant, she talked to A.G., who told her what had
happened. A.G. told her that she “knew this day was coming” because she “prayed to God
to help [her] because [she] wanted to be like normal children.” Dorothy Anderson then took
her for a medical examination and told Ferrah Brown about the abuse.



        4
           It is not clear from C.B.’s testimony when and in which house this actually occurred; however, A.G.
testified regarding a similar instance in which Patricia Brown observed the Defendant with A.G. prior to the
instances of abuse that occurred in the house on Brickmont Drive.

                                                     -7-
        On cross-examination, Dorothy Anderson said that A.G. stayed with her during the
week but sometimes went to visit Eboni Anderson or her paternal grandmother. She gave
the Defendant Eboni Anderson’s telephone number the first time the Defendant called for
A.G. when A.G. was at Eboni Anderson’s house. She was unsure about who was calling at
that time, but she gave him the number anyway.

        Detective Robert Carrigan of the Metro Police Department was responsible for
“investigating the portion of offenses that were alleged to have occurred in Nashville” even
though “similar type events” occurred in other counties. He received a medical examination
report from a local hospital in Mississippi, and after reading the report, he determined that
A.G. should be examined at a hospital in Nashville and should undergo a forensic interview.
After A.G. was interviewed in Nashville, he was able to talk with Ferrah Brown about the
locations and descriptions of houses in order to determine when A.G. may have been
molested. Taking this information, he was able to obtain records from the Nashville Electric
Service to confirm the dates in which the Browns lived in certain locations. A.G. also
identified C.B. as a potential witness, and someone identified Patricia Brown as another
potential witness. The Department of Children’s Services interviewed C.B., but Patricia
Brown refused to talk with Detective Carrigan regarding the case. On cross-examination,
Detective Carrigan said that the report from Mississippi was not “very detailed” but admitted
that he was not present for that interview.

        Lisa Dupree of Our Kids Center at Nashville General Hospital (Our Kids) testified
that she is a licensed clinical social worker and that she interviewed A.G., who appeared
“anxious” during the interview. A.G. had difficulty understanding her questions but told her
that when she visited the Defendant with her brothers, “Uncle June” started “touching” her.
A.G. said that the Defendant touched her more than one time and that he first started
touching her when she was five years old. A.G. could not remember what happened when
she was five, but she said that the Defendant “told her about it.” A.G. remembered that the
last time he touched her occurred before she went to Mississippi. A.G. said, “When I went
down there he would always make his wife go away and then he would [have sex with me].”
After he put his penis in her vagina, he would take “it out real fast and rush[] to the bathroom
to get that stuff out.” A.G. also told her that the Defendant put his penis in her mouth and
“tried to stick it in [her] butt.” A.G. further stated that the Defendant “touched her butt but
it didn’t get in.” After interviewing A.G., Ms. Dupree provided all of the information to the
nurse practitioner, Sue Ross, who conducted A.G.’s physical exam.

       On cross-examination, Ms. Dupree clarified that her notes reflected that A.G. had
“significant difficulty understanding” the questions. She insisted that her examination was
not a forensic examination and that she specifically does not address certain issues when
interviewing victims because she was not conducting a forensic examination.

                                              -8-
       On redirect examination, Ms. Dupree said that her interview was designed to obtain
information to conduct a thorough medical examination. She does not ask the victims how
many times they have been touched in certain areas, she simply determines when and where
the victim had been touched in order to facilitate the medical examination.

       Sue Ross, a Pediatric Nurse Practitioner at Our Kids, testified that she received the
medical records from Mississippi; however, the medical records did not give her much
information. The report reflected that there were no findings regarding sexual abuse;
however, Ms. Ross explained that it is “very common” for medical examinations to yield no
findings for a variety of reasons. She explained that children may not understand their
genitalia and may not be able to explain where and how they were touched. Also, a child
who had been sexually abused and even raped will not always exhibit physical signs in their
genitalia reflecting that they were abused because the hymenal tissues “change dramatically”
during puberty. Moreover, the hymenal tissue is “terribly resilient” and may not tear when
the vagina is penetrated. The tissues may “heal without any kind of residual” signs a nurse
may be able to detect.

        She conducted her own medical examination of A.G. on November 14, 2005,5 because
the documentation available to her was inadequate. In her examination, she found that A.G.
had not started her menstrual cycle but was “pubital in a lot of other respects.” A.G.’s hymen
was “estrogenized” or “thicker,” meaning that there was a “lot of hymenal tissue” that moved
“around very easily.” A.G. also had a “very large hymenal opening” and two clefts in her
hymenal opening. She was unable to definitively determine whether the clefts were
indicative of trauma or were simply a “normal variant” for A.G. One of the clefts was
“problematic” because studies suggest that clefts in that area are indicative of penetrating
trauma. A.G.’s anal examination reflected that she had an “acute fissure.” However, this
was most likely the result of a “stooling phenomena.” Ms. Ross also noted that A.G. had a
“little bump, or flap . . . on her labia.” This bump was most likely a pimple, and after
receiving the results from the sexually transmitted disease testing, she determined that the
bump was not indicative of sexual trauma. Ms. Ross reiterated that it would be possible for
A.G. to have suffered sexual trauma without exhibiting any specific signs of trauma.

        On cross-examination, Ms. Ross admitted that there were no “clear incontrovertible
findings” to support that A.G. underwent sexual trauma. She stated that the anal fissure
could have been related to sexual trauma but was more than likely a stooling phenomenon
given the fact that A.G. did not report that the Defendant had recently sexually abused her
in that area. She admitted that the report from Mississippi indicated that A.G. had not been
“penetrated in her anus by the [D]efendant’s . . . penis.”


       5
           A.G. was 11 years old.
                                             -9-
       At the close of the State’s proof, the State dismissed two counts of aggravated sexual
battery and one count of attempted rape of a child. The State also elected, based on the
victim’s testimony, 11 incidents to fit 11 counts of rape.

        The Defendant presented several witnesses for his case-in-chief. The Defendant
testified first and denied ever raping or doing anything sexual to the victim. He stated that
he lived in the house on Brickmont Drive for two years, from 2003 until 2005, and that his
cousin, Winston Jones, lived with him and his wife until the Defendant moved to Lavergne,
Tennessee.

        While they lived in the house on Brickmont Drive, the victim and C.B. stayed with
them on Fridays and Saturdays. He denied ever spending time alone with the victim. He also
insisted that his wife bought the vibrator after the allegations of sexual abuse surfaced. The
Defendant admitted that he called Dorothy Anderson when he heard about the allegations of
sexual abuse. However, he admitted that he and his wife called the victim a few times from
his cellular telephone while he was driving for work. He said that they called to “talk to her
after school” and see how she was doing in school.

       On cross-examination, the Defendant insisted again that he was never alone with the
victim and that she was only at their house twice a week. When confronted with the victim’s
knowledge of the vibrator, the Defendant stated that there was more than one vibrator in the
house and that he only knew of the one that his wife bought in Ohio. He did not know how
the victim was able to describe either vibrator – there was a pink and clear vibrator and a
pink and red vibrator. He did not buy the vibrators, and he never saw the pink and red
vibrator.

       Lekecia Anderson testified that when she first moved to Tennessee, she lived with the
Defendant and his wife for two weeks. She then moved into a duplex apartment, where
Ferrah Brown lived next door to her in the other apartment. While Lekecia Anderson was
working, Ferrah Brown watched her four children. While Ferrah Brown was working,
Lekecia Anderson watched Ferrah Brown’s three children. Through this arrangement,
Lekecia Anderson became close to A.G. and even asked if A.G. had been sexually abused.
They had this conversation “right before” A.G. moved to Mississippi. After this
conversation, she received a message from Dorothy Anderson regarding the Defendant and
A.G. The message indicated that the Defendant may have been “messing with” the victim.
On cross-examination, she stated that she asked the victim if she was being abused because
she noticed that the victim had “anger issues.” She said the victim answered, “[N]o” in
response to her questions.




                                             -10-
       Patricia Brown stated that they lived at the house on Brickmont Drive for one year and
eight months and that they moved to that house in August 2003 and moved out in March
2005. She stated that she, the Defendant, and Mr. Jones lived in the house. After leaving the
house on Brickmont Drive, they stayed with Lekecia Anderson for three weeks before
moving to Lavergne. She frequently traveled with the Defendant when he went on trips for
work, and the victim and C.B. rode with them approximately six times. The Defendant never
took the victim on any trips alone because the company prohibited children from riding with
drivers without another adult present. Additionally, she never saw the Defendant touch or
harm the victim, and she never fought with the Defendant in front of the children. She
bought the vibrator in 2005 while she and the Defendant were traveling in Ohio.

       Patricia Brown testified that she and the Defendant moved and then the Browns
followed shortly thereafter. She also insisted that the Defendant was never alone with the
children because either she or Mr. Jones was present. She insisted that when the children
stayed on the weekends, she was always there and never left them alone.

       The defense rested, and the State presented Detective Robert Carrigan as a rebuttal
witness. Detective Carrigan testified that records from the Nashville Electric Service
reflected that the Browns turned on their power at their residence before the Defendant
turned on the power at his residence. This indicated that each time the Browns moved, the
Defendant moved to a nearby location shortly thereafter. He was unable to find any
indication that the Browns moved after the Defendant moved.

        Detective Carrigan also subpoenaed records from the Defendant and Patricia Brown’s
cellular telephone company for the period of July 22 - August 3. These records indicated that
the Defendant called Eboni Anderson’s telephone on July 27, July 28, July 29, July 30, July
31 and that he called Dorothy Anderson’s telephone on July 31 and August 3. From August
4 until August 15, neither the Defendant’s nor Patricia Brown’s phone was used. None of
the records indicated that Patricia Brown called Eboni or Dorothy Anderson.

                                         ANALYSIS

                                        I. Sufficiency

        The Defendant contends that the evidence was insufficient to sustain his convictions
of rape of a child in counts 13 and 14. The Defendant contends that the State did not
establish penetration for count 13, charging anal rape, when the victim told the social worker
that the Defendant’s penis did not go in but then testified at trial that the Defendant’s penis
“went in a little.” The Defendant contends that the State did not establish penetration for
count 14 because the vibrator was not used to penetrate the victim’s vagina. The State

                                             -11-
responds that the statute does not require full penetration and that the victim’s testimony that
the Defendant’s penis “went in a little” was sufficient to sustain his conviction of count 13.
The State also responds that the jury could have found that the vibrator penetrated her genital
area and that the vagina need not be entered, only a slight intrusion was necessary to sustain
his conviction of count 14.

        An appellate court’s standard of review when a defendant questions the sufficiency
of the evidence on appeal is “whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). The
appellate court does not reweigh the evidence; rather, it presumes that the jury has resolved
all conflicts in the testimony and drawn all reasonable inferences from the evidence in favor
of the State. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage,
571 S.W.2d 832, 835 (Tenn. 1978). Questions regarding witness credibility, conflicts in
testimony, and the weight and value to be given to evidence were resolved by the jury. See
State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). “A verdict of guilt removes the
presumption of innocence and replaces it with a presumption of guilt, and [on appeal] the
defendant has the burden of illustrating why the evidence is insufficient to support the jury’s
verdict.” Id.; State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). “This [standard] 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).

        Rape of a child is defined as “the unlawful sexual penetration of a victim by the
defendant or the defendant by a victim, if such victim is less than thirteen (13) years of age.”
Tenn. Code Ann. § 39-13-522. The Tennessee Code Annotated defines sexual penetration
as “sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however
slight, of any part of a person’s body or of any object into the genital or anal openings of the
victim’s, the defendant’s, or any other person’s body, but emission of semen is not required.”
Tenn. Code Ann. § 39-13-501(7) (emphasis added). We will discuss each contested count
in turn.

       As to count 13 of child rape, A.G. testified that the Defendant’s penis penetrated her
anus “a little bit” but told Ms. Dupree that the Defendant’s penis “touched her butt but it
didn’t get in.” A.G. also testified that it hurt when the Defendant attempted to penetrate her
anus with his penis. We note that any intrusion, “however slight,” is sufficient to sustain a
conviction; therefore, we conclude that the evidence was sufficient to support a conviction
of count 13 of child rape.




                                              -12-
        As to count 14 of child rape, A.G. testified that the Defendant never placed the
vibrator in her vagina but that he placed a vibrator on her “feeling thing.” The trial court, the
State, and defense counsel agreed that the victim was most likely referring to her clitoris. At
the close of the State’s proof, the Defendant argued that the evidence presented regarding the
vibrator was not sufficient to sustain a charge of child rape. The State responded that placing
the vibrator on the victim’s clitoris could be considered as penetration of the victim’s
“internal genital structures.” The State also requested that the language be corrected in the
indictment to accurately reflect the statute in regard to penetration by changing the reference
to the “victim’s vagina” to the “victim’s genital.” In denying the Defendant’s motion for
judgment of acquittal on that count, the trial court stated that the jury could believe that
placing the vibrator on the victim’s genital area fulfills the requirement of penetration.

        When penetration of a female victim is accomplished by any act other than by one of
the statutorily described sexual acts, the statute requires that the genital or anal opening of
the victim be slightly intruded. Tenn. Code Ann. § 39-13-501(7). However, the statute does
not require that the “vagina be entered or that the hymen be ruptured; the entering of the
vulva or labia is sufficient.” State v. Bowles, 52 S.W.3d 69, 74 (Tenn. 2001) (quoting Hart
v. State, 21 S.W.3d 901, 905 (Tenn. 2000)). A.G. testified that the Defendant put the
vibrator on her “feeling thing” or clitoris. Any intrusion of the vulva or labia, “however
slight,” is sufficient to sustain a conviction; therefore, we conclude that the evidence was
sufficient to support a conviction of count 14 of child rape.

                                     II. Double Jeopardy

        The Defendant contends that counts 4 and 5 of digital penetration occurred
simultaneously with counts 1 through 3 of vaginal penetration and that sustaining convictions
on all counts would violate the principles of double jeopardy because the victim testified that
the Defendant penetrated her with his finger right before he penetrated her with his penis.
The State responds that the Defendant is limited to plain error review of this issue because
he did not raise this issue at trial. The State also responds that these convictions do not
violate the principles of double jeopardy because the digital penetration was not used to
facilitate the penile penetration.

        We agree that the Defendant’s double jeopardy issue was not raised at trial or in the
Defendant’s motion for new trial. Such an allegation, if meritorious, would result in a
dismissal of the prosecution. Therefore, we conclude that the Defendant’s failure to include
this issue in his motion for new trial does not result in a waiver of the issue on appeal. See
Tenn. R. App. P. 3(e); State v. Williams, 675 S.W.2d 499, 501 (Tenn. Crim. App. 1984).




                                              -13-
        The United States and Tennessee constitutions both contain double jeopardy clauses
which provide that no person shall twice be put in jeopardy of life or limb for the same
offense. U.S. Const. amend. V; Tenn. Const. art. I, § 10. Similarly, when a defendant is
charged with a sexual offense, the defendant may not be convicted of two offenses when the
conduct underlying one offense was “directly facilitative, and thus incidental, or merely
preparatory in the sense of intending to arouse the victim or perpetrator” for the commission
of the second offense. State v. Barney, 986 S.W.2d 545, 548 (Tenn. 1999). As relevant to
this case, the supreme court has suggested several factors “[f]or determining whether two or
more sexual acts may be the subject of separate convictions.” Id. These factors are:

       1. temporal proximity - the greater the interval between the acts, the more
       likely the acts are separate;
       2. spatial proximity - movement or re-positioning tends to suggest separate
       acts;
       3. occurrence of an intervening act - an interruption tends to suggest separate
       acts;
       4. sequence of the acts - serial penetration of different orifices as distinguished
       from repeated penetrations of the same orifice tends to suggest separate
       offenses; and
       5. the defendant’s intent as evidenced by conduct and statements.

Id. at 548-49. In Barney, the defendant was convicted of separate offenses for rubbing the
victim’s penis with his hand and subsequently performing fellatio on the victim. Id. at 549.
The supreme court held that the two sexual acts merited separate convictions. Id. at 549.

        The Defendant urges us to analogize this case with the case of State v. Arnett, 49
S.W.3d 250, 256 (Tenn. 2001). In Arnett, the supreme court upheld this court’s conclusion
that a separate conviction for digital penetration violated the principles of double jeopardy
when the defendant digitally penetrated the victim in order to facilitate his subsequent penile
penetration. Arnett, 49 S.W.3d at 256. The victim in Arnett was brutally raped on one
occasion, and the defendant only digitally penetrated the victim when he was unable to insert
his penis into her vagina on his first attempt. Id. In this case, on two separate occasions, the
Defendant also digitally penetrated the victim before inserting his penis into her vagina.
However, on eight of the ten instances of penile penetration, no digital penetration occurred.

       Moreover, consideration of the factors submitted in Barney suggest that the
Defendant’s convictions should be upheld. We agree that the temporal and spatial proximity
between the two acts was not particularly great and that the Defendant did not penetrate
different orifices. However, he used a different body part for each penetration. Relative to
the Defendant’s intent, the testimony at trial suggested that the Defendant intended to violate

                                              -14-
the victim on a regular basis in a variety of ways – the Defendant forced the Defendant to
participate in sexual intercourse, fellatio, anal sex, digital penetration, and clitoral stimulation
with a vibrator. Thus, we do not believe that the digital penetration was used to facilitate the
penile penetration because the digital penetration was simply one of the ways in which the
Defendant intended to violate the victim. Accordingly, we conclude that the Defendant’s
convictions do not violate the principles of double jeopardy.

                                            III. 404(b) Evidence

        The Defendant contends that evidence regarding other instances of sexual conduct
between the Defendant and the victim should not have been admitted because most of the
erroneously admitted instances of sexual conduct occurred outside of the time period alleged
in the indictment. The Defendant also contends that the testimony regarding the instances
of sexual conduct that occurred in the truck within the time period of the indictment should
have been excluded because the probative value of the testimony was outweighed by the
prejudicial effect. The State responds that admission of testimony regarding the instances
of sexual conduct occurring within the time period of the indictment was not error but
concedes that it was harmless error to admit testimony regarding the instances of sexual
conduct that occurred outside the time period of the indictment.

       The State provided notice that they wished to submit evidence regarding other acts by
the Defendant against A.G, and the trial court held a hearing to determine the admissibility
of such evidence. At the hearing, A.G.6 testified regarding events occurring in the
Defendant’s trailer (Wilson County), in a residence on “Brick Church Pike” 7 (the indicted
offenses that occurred in Davidson County), and in the Defendant’s semi-trailer truck (in
varying jurisdictions). Her testimony was consistent with her testimony at trial. In addition,
A.G. stated that she was abused in the truck when she was 10 and 11 years old.

       Ferrah Melissa Brown, A.G.’s mother, also testified at the hearing. She gave a
summary of their moving history and stated that the Defendant frequently moved with her
family or to a place nearby her family on several occasions. On cross-examination, Ferrah
Brown testified that they moved to the trailer park in Wilson County in 2001 and that the
victim would have been approximately seven years old at that time.




        6
            A.G. was 12 years old at the time of this hearing.
        7
        From the testimony presented at trial, it is clear that the victim was referring to the Defendant’s
house on Brickmont Drive.
                                                      -15-
        Following argument by the State and defense counsel, the trial court entered a written
order finding “by clear and convincing evidence that [the events in Wilson County and in the
Defendant’s truck occurred and that] the events [were] material to the issue of intent and the
dynamics of the relationship.” The trial court noted that the probative value of the sexual
activity was not outweighed by the prejudicial effect of such evidence. Relative to the
testimony regarding the sexual activity that occurred within the time-frame of the indictment,
albeit in a tractor-trailer or semi truck outside Davidson County, the trial court stated that the
“events place the indicted offenses in context and are material to the issues of intent and the
relationship of the [D]efendant with this alleged victim.” The court also noted that A.G. was
a credible witness.

        On the first day of trial, the State sought to include testimony relative to the sexual
abuse that occurred in Rutherford County (Lavergne, Tennessee) after the time period alleged
in the indictment. The State noted that the indictment alleged that the abuse occurred from
July 2003 until March 2005. However, the Defendant did not move to Rutherford County
until March 2005. The State argued that exclusion of this testimony would create a
“conceptual gap” in the victim’s testimony and cause confusion in the minds of the jury as
to why the victim chose to disclose the abuse several months after the Defendant stopped
abusing her. Additionally, evidence deemed admissible by the court was recovered from the
house in Rutherford County.

        A.G. testified relative to these allegations at a jury-out hearing. A.G. said that prior
to moving to Mississippi, she visited the Defendant at his house in Rutherford County. When
she visited the Defendant, he forced her to watch pornography. The Defendant also placed
the red vibrator “on [her]” private parts. On cross-examination, she stated that this occurred
“some months” before she moved to Mississippi. She said the Defendant had sexually
penetrated her in the upstairs bedroom when she visited the Defendant approximately one
week after he moved to Rutherford County. After this episode, the Defendant frequently
picked up A.G. and her brothers, brought them to his house, and had sex with A.G.

       Following argument by the State and defense counsel, the trial court found that the
evidence of sexual abuse in Rutherford County was clear and convincing and that it was not
overly prejudicial. The trial court further stated that the testimony “explain[ed] the
relationship . . . between the alleged victim and the [D]efendant up until the pertinent point
that [A.G.] disclose[d].” The trial court also stated that the doctrine of “fresh complaint” also
supported his decision to admit the testimony. However, the trial court precluded any
testimony relating to the Defendant showing A.G. pornographic movies.

       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. Tenn. R. Evid.

                                               -16-
404(b). The rule excluding such irrelevant and prejudicial evidence “is based on the
recognition that such evidence easily results in a jury improperly convicting a defendant for
his or her bad character or apparent propensity or disposition to commit a crime regardless
of the strength of the evidence concerning the offense on trial.” State v. Rickman, 876
S.W.2d 824, 828 (Tenn. 1994) (citing Anderson v. State, 56 S.W.2d 731 (1933)). The danger
of such activity “particularly exists when the conduct or acts are similar to the crimes on
trial.” Id. (citing State v. Parton, 694 S.W.2d 299, 303 (Tenn. 1985)).

       Rule 404(b) is generally one of exclusion, but exceptions to the rule may occur when
evidence of the otherwise inadmissible conduct is offered to prove the motive of the
defendant, identity, intent, the absence of mistake or accident, opportunity, or a common
scheme or plan. State v. Tolliver, 117 S.W.3d 216, 230 (Tenn. 2003); State v. McCary, 119
S.W.3d 226, 243 (Tenn. Crim. App. 2003). While the supreme court explicitly declined to
recognize a general “sex crimes” exception to Rule 404(b), the court did create a narrow
exception “in the prosecution of criminal acts committed against young children who are
frequently unable to identify a specific date on which a particular offense was committed.”
Rickman, 876 S.W.2d at 828-29. In such cases, evidence of other sex crimes is admissible
“when an indictment is not time specific and when evidence relates to sex crimes that
allegedly occurred during the time as charged in the indictment.” Id. Additionally, “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. at 829.

        In declining to adopt a general “sex crimes” exception, the supreme court noted that
“evidence admitted under a general sex crimes exception is said to be for purposes of
corroboration, or to show the intimate relations between the parties, or to show that the
defendant had a lustful disposition.” Id. at 828. These exceptions were not embodied in the
Tennessee Rules of Evidence and were specifically rejected in the supreme court’s opinion
in Rickman. Id. at 829-30; see State v. Otis Breeden, 03-C0L-93L0-CR00335, 1995 WL
390952 (Tenn. Crim. App. 1995) (reversing the defendant’s convictions following the
supreme court’s decision in Rickman and concluding that evidence of prior sexual acts was
inadmissible to show the state of intimacy between the victim and the defendant).
Accordingly, we conclude that it was error for the trial court to admit the evidence of the
prior sexual activity between the Defendant and the victim in order to explain the “dynamics
of the relationship.” The trial court also erred in relying on the doctrine of fresh complaint
because that doctrine “allows others to testify to statements made by the victim about the
sexual assault for which the defendant is then being prosecuted in order to corroborate the
victim’s statement that he or she suffered the attack.” Rickman, 876 S.W.2d at 830; see also
State v. Livingston, 907 S.W.2d 392, 395 (Tenn. 1995) (stating that “no acceptable basis
exists for stretching the fresh-complaint doctrine to the extent that it is applicable to cases
involving child victims”).

                                              -17-
       In this case, the victim and C.B. testified about acts for which the Defendant was not
being prosecuted. The indictments in this case alleged a time frame of abuse occurring in
Davidson County between July 25, 2003 and March 17, 2005 but was not otherwise time-
specific. In this time frame, the victim was between eight and ten years old.

        First, we must note that any evidence of abuse that did not occur in Davidson County
should have been excluded because these offenses could not be elected as offenses for this
indictment when the offenses occurred outside the trial court’s jurisdiction. See id. at 829.
(requiring the State to elect the incident for which a conviction is being sought when
testimony regarding additional sexual offenses is admitted into evidence). Moreover, the
abuse that occurred in Wilson and Rutherford counties did not occur within the time period
of the indictment. According to the testimony presented at trial, the victim was either five
or seven years old when she was abused in Wilson County. The abuse that occurred in
Rutherford County was also outside of the period alleged in the indictments because the
Defendant moved to Lavergne in March 2005. Some of the abuse that occurred in the
Defendant’s truck may have occurred within the time period alleged in the indictment
because the victim testified that she was 10 and 11 years old when the Defendant abused her
in the truck. The victim turned 11 on September 11, 2005. The abuse that occurred in the
truck occurred outside Davidson County, precluding an election by the State to base a
conviction on the incidents in the truck. Therefore, any testimony regarding the abuse in the
truck should not have been admitted. Accordingly, we conclude that the trial court erred in
admitting evidence relating to the abuse that occurred in Wilson County, in Rutherford
County, and in the truck. However, this conclusion does not end our inquiry.

       The Tennessee Rules of Appellate Procedure provide for harmless error review in
such cases. See Tenn. R. App. P. 36(b). The United States Supreme Court has also
“repeatedly recognized” that “most constitutional errors can be harmless.” Washington v.
Recuenco, 548 U.S. 212 (2006) (citing Neder v. United States, 527 U.S. 1, 8 (1999) (quoting
Arizona v. Fulminante, 499 U.S. 279, 306 (1991))). However, “[a]ll errors are not the same,
nor do they have the same effect on the judicial process in general or on a particular trial.”
State v. Edwardo Rodriguez, 254 S.W.3d 361, 371 (Tenn. 2008). Accordingly, our supreme
court “has recognized three categories of error—structural constitutional error, non-structural
constitutional error, and non-constitutional error.” Id. As relevant to this issue, our supreme
court has noted that “errors in the admission of evidence do not normally take on
constitutional dimensions.” Id. at 375 (citing State v. Powers, 101 S.W.3d 383, 397 (Tenn.
2003)).

        In determining whether non-constitutional errors are harmless, “Tennessee law places
the burden on the defendant who is seeking to invalidate his or her conviction to demonstrate
that the error ‘more probably than not affected the judgment or would result in prejudice to

                                             -18-
the judicial process.’” Id. at 372 (quoting Tenn. R. App. P. 36(b)). While substantial
evidence of the defendant’s guilt makes it difficult for “the defendant to demonstrate that a
non-constitutional error involving a substantial right more probably than not affected the
outcome of the trial,” harmless error inquiry “does not turn upon the existence of sufficient
evidence to affirm a conviction or even a belief that the jury’s verdict [wa]s correct.” Id. at
372. Rather, “the crucial consideration is what impact the error may reasonably be taken to
have had on the jury’s decision making.” Id.

        In Rickman, the supreme court held that testimony relating to the defendant’s prior
sexual activity with his stepdaughter when she was seven or eight years old was inadmissible
and that the prejudice of the testimony outweighed the probative value of the evidence when
the defendant was on trial for acts committed with his stepdaughter that occurred years later.
Rickman, 876 S.W.2d at 826-30. In a somewhat similar case, the supreme court held that
erroneously admitted corroborating testimony provided by the victim’s cousin was not
harmless. State v. Dutton, 896 S.W.2d 114, 117 (Tenn. 1995). In Dutton, the victim’s cousin
testified that he observed sexual activity between the defendant and the victim on a prior
occasion before the indictment period. Id. at 115. The testimony of the 12-year-old victim
was the “primary evidence” of the sexual abuse presented at trial. Id. at 117. In deciding that
the error was not harmless, the supreme court stated, “Under these circumstances, there is
little doubt that the trial court error in admitting the testimony of [the 14-year-old cousin] as
to prior sex acts between the defendant and the victim ‘more probably than not affected the
judgment in this case.’” Id.

       Relative to this Defendant’s case, we acknowledge that the trial court issued a limiting
instruction to the jury regarding the erroneously admitted portions of the victim’s testimony.
However, the trial court instructed the jury that they may only use the evidence of other
allegations of abuse

       for the limited purpose of describing to you a complete account of the events
       in establishing the relationship between [A.G.] and [the Defendant], and/or the
       [D]efendant’s intent for which the crimes he - - the allegations for which he
       is currently on trial.

As discussed above, the trial court was precluded from admitting evidence to describe the
relationship between the victim and the Defendant. “Accordingly, because the instructions
were incorrect and misleading, they may not be considered in our analysis of whether the
error in the admission of the improper evidence was harmless.” Id.

        In determining whether the admission of the evidence was harmless in this case, we
first note that, similar to the testimony presented in the Dutton case, A.G.’s testimony was

                                              -19-
the primary evidence presented that supported her allegations of sexual abuse by the
Defendant. The Defendant denied ever touching or being alone with the victim. C.B.’s
testimony served to corroborate the victim’s testimony regarding the years of abuse. C.B.
testified at length and with the aid of stuffed animals about the unindicted offenses.
Additionally, the erroneously admitted testimony from A.G. allowed the jury to infer that the
Defendant had been abusing the victim several years prior to the indicted offenses and after
the indicted offenses. Accordingly, we believe that the erroneously-admitted portions of
testimony from the victim and C.B. prejudiced the Defendant and affirmatively affected the
result of the trial on the merits. We reverse the judgments of the trial court and remand the
Defendant’s case for a new trial.

                                   IV. Remaining Issues

       While we have concluded that the Defendant is entitled to a new trial, we will discuss
the Defendant’s remaining issues in the event that further appellate review occurs and to
provide guidance to the trial court because two of the remaining issues relate to evidentiary
matters. We will also discuss the Defendant’s sentencing issues in the event of a subsequent
conviction and sentencing hearing following our remand of the Defendant’s case.

                                       1. Pregnancy

        The Defendant contends that defense counsel should have been allowed to ask the
victim about a pregnancy that occurred after the time period of the abuse because the victim’s
testimony regarding the Orajel and the vibrator being placed on her “feeling place”
demonstrated that she had knowledge of sexual matters that could have come from another
source. Also, the Defendant contends that with this knowledge, the victim should have been
able to refer to her “feeling place” as her clitoris. The State responds that the victim’s
subsequent pregnancy was not relevant to her knowledge of sexual matters prior to the
Defendant’s abuse. Furthermore, the victim’s sexual relationship with a 14-year-old boy
when she was 13 did not establish that she should have known that her “feeling place” was
really her clitoris.

       Evidence of a victim’s sexual behavior with a person other than the Defendant is
generally inadmissible unless it is offered to “prove or explain” the victim’s “knowledge of
sexual matters.” Tenn. R. Evid. 412(c)(4)(ii). Additionally, the “probative value of the
evidence [must] outweigh[] its unfair prejudice to the victim.” Tenn. R. Evid. 412(d)(4).
Such evidence is only admissible if defense counsel files a motion regarding the introduction
of this evidence ten days before trial. Tenn. R. Evid. 412(d)(1)(i). The ten-day filing
requirement may be waived “if the court determines either that the evidence is newly



                                             -20-
discovered and could not have been obtained earlier through the exercise of due diligence
or that the issue to which the evidence relates has newly arisen in the case.” Id.

        We first note that defense counsel did not comply with the ten-day notice requirement.
The Defendant contends that the evidence of the victim’s sexual behavior was not relevant
until the victim testified at trial about the use of Orajel and referred to her clitoris as her
“feeling place.” The State responds that defense counsel knew about the pregnancy prior to
the start of the trial and that defense counsel did not provide the appropriate pretrial notice
regarding this evidence. Following argument by counsel, the trial court stated that defense
counsel knew that the victim was pregnant prior to trial and was aware that the Defendant
used a “gel-type substance” and a vibrator on the victim. The trial court further stated that
the motion should have been raised prior to trial and that the victim’s testimony regarding
the Orajel and her clitoris did not “suddenly” make her knowledge of sexual matters relevant.

       Evidence that the victim became pregnant after a sexual encounter with a 14-year-old
boy indicated that the victim engaged in specific instances of sexual behavior with another
person. See State v. Wyrick, 62 S.W.3d 751, 771 (Tenn. Crim. App. 2001). We also note
that the pregnancy and resulting additional sexual knowledge occurred years after her
allegations of abuse. Additionally, defense counsel knew about the victim’s pregnancy, the
accusation that the Defendant used a vibrator on the victim, and the accusation that the
Defendant used a “gel-type” substance when having sex with the victim. Accordingly, we
conclude that the trial court did not err in finding that defense counsel did not comply with
the notice requirement of Tennessee Rule of Evidence 412. See State v. Tommy Dale
Taylor, No. W2008-01006-CCA-R3-CD, 2009 WL 1929159, at *10 (Tenn. Crim. App. July
6, 2009), perm. app. denied (Tenn. Nov. 30, 2009).

                                          2. Hearsay

       The Defendant contends that Lisa Dupree’s testimony regarding the victim’s
statements about the rapes was not for purposes of medical diagnosis and treatment;
accordingly, these statements should have been excluded as inadmissible hearsay. The State
responds that the statements obtained from the interview were sought and used to provide
further treatment for the victim and that this was not an interview conducted for investigative
purposes but was an interview conducted for medical diagnosis and treatment.

        At trial, Lisa Dupree testified that Our Kids is a “foresenic evaluation unit for children
who are alleged to be victims of sexual assault.” Her job consists of “collect[ing] a
presenting history from [the victim’s] parent” and then she conducts a “medical history with
the child.” Following the interview, she provides “recommendations for follow-up services”
and “interventions that may be necessary if there’s a crisis in the family” or “if there’s other

                                               -21-
needs, psycho social or psychological needs.” She collects a medical history “for purposes
of the medical examiner, the medical diagnosis and treatment, so that [they] can make
decisions with respect to testing for infections or evidence collection.” Her questions are
“designed to elicit information that will help guide testing for infections or diseases” and
determining which “body parts [they] may need to swab or look at.” The information is also
gathered to ensure that they comply with “reporting statutes” so that they know which
authorities they need to notify. They also must notify the health department if they find that
a child has been infected with a sexually transmitted disease. She seeks to identify the
perpetrator in order to protect the child and ensure that they report the contact to the
authorities “for investigative and protection issues.” There are also medical reasons for
identifying the perpetrator. The age, gender, race, and relationship of the perpetrator allow
them to assess the child’s risk for sexually transmitted diseases.

        After hearing this testimony from the witness, the trial court sent the jury out of the
room before hearing argument from the State and defense counsel concerning the
admissibility of the victim’s statements to Ms. Dupree. In denying the defense motion, the
trial court noted that the statement was taken for purposes of “follow-up medical treatment”
and that the statements qualified under the hearsay exception. Furthermore, the statements
were taken to ensure that the victim was protected from the Defendant by providing
information to the victim’s mother regarding the identity of the perpetrator, the Defendant,
who maintained “continuing contact” with the victim.

       The victim’s interview with Ms. Dupree was a statement, which is “(1) an oral or
written assertion or (2) nonverbal conduct of a person if it is intended by the person as an
assertion.” Tenn. R. Evid. 801(a). Hearsay is defined as “a statement, other than one made
by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth
of the matter asserted.” Tenn. R. Evid. 801(c). Hearsay is not admissible unless an
exception to the hearsay rule applies. Tenn. R. Evid. 802. Statements made for purposes of
medical diagnosis and treatment are one such exception to the hearsay rule. Tenn. R. Evid.
803(4). These statements must either describe “medical history; past or present symptoms,
pain, or sensations; or the inception or general character of the cause or external source
thereof insofar as reasonably pertinent to diagnosis and treatment.” Id. A diagnosis must be
“made for the purpose of determining what course of treatment should be prescribed for the
patient.” State v. Rucker, 847 S.W.2d 512, 517 (Tenn. Crim. App. 1992).

        These statements are admissible because patients, in general, have a strong motivation
to be truthful because the type of medical care they receive is dependent upon their answers
to the questions. State v. McLeod, 937 S.W.2d 867, 870 (Tenn. 1996). In cases in which a
child is involved, the rationale underlying the admissibility of these statements does not
necessarily apply “because children may not be able to understand the need to be truthful in

                                              -22-
a medical setting.” Id. Therefore, when children are involved, we “must look to all the
circumstances surrounding the statement” in determining whether the statements were
admissible. State v. Stinnett, 958 S.W.2d 329 (Tenn. 1997). These circumstances include
“the timing of the statement and its contents.” McLeod, 937 S.W.2d at 871.

       In this case, the victim was taken to Ms. Dupree shortly after her return to Tennessee.
She had been examined by a doctor in Mississippi after she alleged that she had been raped
repeatedly by the Defendant. However, as noted by several witnesses, the examination in
Mississippi was not adequate. The examination in Tennessee was conducted to determine
where the victim had been touched and in what manner. The identity of the Defendant was
also important in order to determine what type of medical tests were needed and to maintain
separation between the victim and the abuser. The separation was particularly important
because the victim, her mother, and others testified that the victim spent a significant amount
of time with the Defendant at his residence. All of the information collected from the
interview was then provided to the examiner in order to facilitate further medical treatment.
Additionally, Ms. Dupree’s testimony at trial did not indicate that the victim was asked
leading questions or guided in her responses. Accordingly, we conclude that the trial court
did not err in admitting the victim’s statements because they were made for purposes of
medical diagnosis and treatment, an exception to the hearsay rule.

                                        3. Sentencing

        Following a sentencing hearing, the trial court applied two enhancement factors and
minimally considered the fact that the Defendant did not have any prior convictions. The
trial court rejected the enhancement factor of previous history of criminal convictions or
behavior. See Tenn. Code Ann. 40-35-114(1). The trial court applied and placed great
weight on the enhancement factor that the Defendant abused a position of private trust
because the Defendant was treated as family even though he was not biologically related to
the victim and regularly cared for the victim. See Tenn. Code Ann. § 40-35-114(14). The
trial court found but placed minimal weight on the enhancement factor that the offense was
committed for his desire for pleasure or excitement. See Tenn. Code Ann. § 40-35-114(7).

        The trial court then discussed the factors concerning the imposition of consecutive
sentencing and noted that the abuse continued “for a period of five years,” that the victim was
instructed to not tell anyone about the Defendant’s abuse, and that the victim sought
counseling and had behavioral issues after the abuse. The trial court also noted the extent
of the sexual activity between the Defendant and victim and said that “[j]ust about everything
[but cunnilingus] did occur with this young child and [the Defendant], according to the
proof.” Following these findings, the trial court sentenced the Defendant as follows:



                                             -23-
 Count                          Charge                           Disposition & Sentence
 1         Child Rape - penile penetration in the              18 years to serve
           Defendant’s bedroom

 2         Child Rape - penile penetration in the              18 years to serve;
           Defendant’s bedroom                                 concurrent with count 1

 3         Child Rape - penile penetration in the              18 years to serve;
           Defendant’s bedroom                                 concurrent with count 1

 4         Child Rape - digital penetration in the             18 years to serve;
           Defendant’s bedroom on Brickmont Drive              consecutive to count 1

 5         Child Rape - digital penetration in the             18 years to serve;
           Defendant’s bedroom on Brickmont Drive              concurrent with count 1

 6         Child Rape - penile penetration in the              18 years to serve;
           Defendant’s living room on Brickmont Drive          concurrent with count 1

 7         Child Rape - penile penetration in the              18 years to serve;
           Defendant’s bathroom on Brickmont Drive             concurrent with count 1

 8         Aggravated Sexual Battery                           Dismissed by State

 9         Aggravated Sexual Battery                           Dismissed by State

 10        Child Rape - fellatio in the Defendant’s            18 years to serve;
           bedroom on Brickmont Drive                          consecutive to count 1

 11        Child Rape - fellatio in the Defendant’s            18 years to serve;
           bedroom on Brickmont Drive                          concurrent with count 1

 12        Attempted Rape                                      Dismissed by State

 13        Child Rape - anal penetration in the                20 years to serve;
           Defendant’s bedroom on Brickmont Drive              consecutive to count 1

 14        Child Rape - clitoral stimulation with a            20 years to serve;
           vibrator in the Defendant’s bedroom                 concurrent with count 1

The trial court’s sentencing decision resulted in an effective sentence of 74 years.




                                            -24-
                                  A. Enhancement Factors

        The Defendant contends that the trial court erred in sentencing the Defendant when
the enhancement factors cited were not found by a jury, and the Defendant requests this court
to reduce the length of his sentences to the “presumptive minimum” of 15 years. The State
concedes that the trial court erred in applying enhancement factors that were not found by
a jury but asserts that any error was harmless because the Defendant received sentences that
were below the presumptive minimum or were in accordance with the presumptive minimum.

        An appellate court’s review of sentencing is de novo on the record with a presumption
that the trial court’s determinations are correct. Tenn. Code Ann. § 40-35-401(d). As the
Sentencing Commission Comments to this section note, on appeal the burden is on the
defendant to show that the sentence is improper. This means that if the trial court followed
the statutory sentencing procedure, made findings of fact that are adequately supported in the
record, and gave due consideration and proper weight to the factors and principles that are
relevant to sentencing under the 1989 Sentencing Act, the court may not disturb the sentence
even if a different result were preferred. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim.
App. 1991).

       However, “the presumption of correctness which accompanies the trial court’s action
is conditioned upon the affirmative showing in the record that the trial court considered the
sentencing principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d
166, 169 (Tenn. 1991). In this respect, for the purpose of meaningful appellate review,

       [T]he trial court must place on the record its reasons for arriving at the final
       sentencing decision, identify the mitigating and enhancement factors found,
       state the specific facts supporting each enhancement factor found, and
       articulate how the mitigating and enhancement factors have been evaluated
       and balanced in determining the sentence.

State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1994) (citation omitted); see Tenn. Code Ann.
§ 40-35-210(e).

       In conducting its de novo review, the appellate court must consider (1) the evidence,
if any, received at the trial and sentencing hearing, (2) the presentence report, (3) the
principles of sentencing and arguments as to sentencing alternatives, (4) the nature and
characteristics of the criminal conduct, (5) any mitigating or statutory enhancement factors,
(6) any statement that the defendant made on his own behalf, (7) the potential for
rehabilitation or treatment, and (8) any statistical data provided by the Administrative Office
of the Courts regarding sentencing for similar offenses in Tennessee. Tenn. Code Ann. §§


                                             -25-
40-35-102, -103, -210 (2006); see also Ashby, 823 S.W.2d at 168; Moss, 727 S.W.2d at 236-
37.

        The Defendant stands convicted of offenses that all occurred before the 2005 revision
to the Criminal Sentencing Reform Act. At the outset, we note that both parties recognize
that the trial court’s use of enhancement factors not found by a jury violated our supreme
court’s holding in State v. Gomez, 239 S.W.3d 733 (Tenn. 2007). However, the sentences
imposed by the trial court were at or below the presumptive midpoint of the range because
the Defendant was sentenced to either 18 years or 20 years for each of his Class A felonies.
See Tenn. Code Ann. § 40-35-112(a)(1) (for defendant convicted as a Range I offender,
sentence range for Class A felony is 15 to 25 years); See also Tenn. Code Ann. § 40-35-
210(c) (2003) (for defendant convicted of a Class A felony, the presumptive sentence is the
midpoint of the range unless enhancement or mitigating factors are present). Accordingly,
we conclude that the error was harmless.

                                B. Consecutive Sentencing


       The Defendant contends that the trial court erred in imposing partial consecutive
sentences because imposition of the consecutive sentences was not warranted given the facts
of the case. The State responds that consecutive sentences were warranted in the
Defendant’s case given the nature of the abuse suffered by the victim.

         Consecutive sentencing is guided by Tennessee Code Annotated section 40-35-115(b),
which states, in pertinent part, that the trial court may order sentences to run consecutively
if it finds by a preponderance of the evidence that

       [t]he 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) (2006). The trial court is required to “specifically recite
the reasons” behind imposition of a consecutive sentence. See Tenn. R. Crim. P. 32(c)(1);
see, e.g., State v. Palmer, 10 S.W.3d 638, 647-48 (Tenn. Crim. App. 1999) (noting the
requirements of Rule 32(c)(1) for purposes of consecutive sentencing). As noted above, the
trial court discussed the reasons behind his sentencing decision on the record. Following our
review, we conclude that the record does not preponderate against the trial court’s sentencing

                                             -26-
decision and that the effective sentence imposed was not greater than that deserved for the
offenses in this case.

                                      CONCLUSION

       In consideration of the foregoing and the record as a whole, the judgments of the trial
court are reversed. The Defendant’s case is remanded for a new trial.




                                                    ______________________________
                                                    D. KELLY THOMAS, JR., JUDGE




                                             -27-
