         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                September 28, 1999 Session

           STATE OF TENNESSEE v. JAMES DAVID SHROPSHIRE

                Appeal as of Right from the Criminal Court for Knox County
                         No. 51598    Richard Baumgartner, Judge



                                 No. E1998-00872-CCA-R3-CD
                                      December 12, 2000

In March 1996, James David Shropshire, the defendant and appellant, was convicted in the Knox
County Criminal Court of aggravated sexual battery and simple assault. Following the jury’s verdict,
the trial court dismissed the simple assault charge. On appeal, the defendant challenges his
conviction for aggravated sexual battery. He raises the following issues: (1) whether the evidence
was sufficient to support the conviction; (2) whether a variance between the bill of particulars and
the proof adduced at trial was fatal; (3) whether the defendant’s conviction violated the double
jeopardy clauses of the United States and Tennessee Constitutions; (4) whether the state made
improper closing arguments; and (5) whether the trial court erred in allowing the state to introduce
evidence that the defendant had committed prior bad acts. Because the jury heard evidence that the
defendant committed a crime other than that for which he was on trial, which was the subject of an
acquittal, the judgment of the trial court is reversed.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Reversed and
                                       Remanded.

JERRY L. SMITH, J., delivered the opinion of the court, in which GARY R. WADE, P.J. and JAMES
CURWOOD WITT, JR., J., joined.

Kenneth F. Irvine, Jr., Knoxville, Tennessee, for the appellant, James David Shropshire.

Paul G. Summers, Attorney General and Reporter, Erik W. Daab, Assistant Attorney General,
Randall E. Nichols, District Attorney General, and Charme Knight, Assistant District Attorney, for
the appellee, State of Tennessee.
                                                       OPINION

                                                 Factual Background

         During autumn, 1991, A.L.,1 a seven-year-old female, was living with her grandmother,
Glenda Shropshire, and Ms. Shropshire’s husband, the defendant. Ms. Shropshire often worked at
night, and the defendant worked during the day. Consequently, the defendant was often home with
A.L. at night. After A.L. overheard Ms. Shropshire and Ms. Shropshire’s daughter (A.L.’s mother)
discussing child molestation in July 1992, A.L. told her mother and grandmother that the defendant
had molested her back in 1991.
         Ms. Shropshire took A.L. to a hospital to have her examined. The hospital referred A.L. to
the Department of Human Services. DHS, in turn, referred A.L. to Dr. Campbell, a child abuse
specialist. Dr. Campbell examined A.L. in September 1992 and determined that A.L. had some sort
of trauma to her genital area that was consistent with the allegations A.L. had made about the
defendant.
         On May 5, 1993, the Knox County Grand Jury indicted the defendant for one count of rape
of a child and two counts of aggravated sexual battery. 2 During the trial on September 20, 1995,
A.L. testified that the defendant molested her on several occasions. First, she testified that she
watched the movie “Peter Pan” with the defendant. During the movie, the defendant picked her up
and pretended that A.L. was flying around the room. As he was holding her, the defendant touched
A.L.’s vagina. She then testified that, on another occasion, the defendant was alone with her in his
bedroom and placed his finger in her vagina. She also testified that he did that again on a separate
occasion. Finally , A.L. recounted two episodes in which the defendant forced her to touch his penis,
and one incident during which the defendant showed her a “white, or clear” substance on his finger.
After A.L. finished testifying, the state called Dr. Campbell, the child abuse expert who examined
A.L. Dr. Campbell testified that her examination of A.L. yielded results consistent with the charges.
The state then rested.
         The defense called Ms. Shropshire as its first witness. She testified that she did not believe
the defendant molested A.L. Following Ms. Shropshire’s testimony, the defendant testified. He
stated that, during the time period in question, A.L. had exhibited inappropriate behavior toward him,
i.e., she tried to see him in the shower and tried to “rub herself” on his foot. He also testified that
A.L. had once awakened him from a nap by trying to touch his genitals. After the defendant’s
testimony, the defense rested. Following the proof, the state elected one of the incidents in which
the defendant allegedly placed his finger in A.L.’s vagina as count one (aggravated rape), the Peter
Pan incident as count two (aggravated sexual battery), and one of the incidents in which the
defendant allegedly forced A.L. to touch his penis as count three (aggravated sexual battery). The


         1
             It is the policy of this Court not to reveal the names of minor victims of sexual abuse.
         2
           Although the defendant was indicted for a violation of Tenn. Code Ann . § 39-13-522 (rape of a child), that
statute was n ot codified until 199 2 becau se fundin g was n ot appro priated. See Tenn. Code Ann, § 39-13-522, Code
Commission Notes (1991). Because the defendant was indicted for acts that he allegedly performed in late 1991, the
offense fo r which the defen dant wa s indicted d id not exist a t that time.

                                                            -2-
jury acquitted the defendant on count two but was unable to reach a verdict on counts one and three.
The judge then declared a mistrial on those counts.
          The defendant was retried for one count of aggravated sexual battery and one count of
aggravated rape in March 1996. The proof in the second trial was almost exactly the same as that
presented in the first trial, except that in the second trial the defendant did not testify. Just as in the
first trial, the state elected one incident in which the defendant placed his finger in A.L.’s vagina as
the aggravated rape and one of the incidents in which the defendant forced A.L. to touch his penis
as the aggravated sexual battery. The jury convicted the defendant of aggravated sexual battery, and
of simple assault, a lesser included offense of aggravated rape. Following the Court of Criminal
Appeals’s decision in State v. Roger Dale Hill, Sr., 01C01-9508-CC-00267, 1996 WL 346941(Tenn.
Crim. App., Nashville, June 20, 1996), however, the trial court dismissed the charges against the
defendant.3 The Tennessee Supreme Court reversed the Hill decision in State v. Hill, 954 S.W.2d
725 (Tenn. 1997), and, consequently, the Court of Criminal Appeals reinstated the defendant’s
convictions. Following a motion by the defendant, the trial judge dismissed the simple assault
conviction because it had been charged after the statute of limitations had expired. The defendant
then moved the trial court to dismiss the aggravated sexual battery conviction, but the trial court
declined.
                                                Sufficiency
          The appellant first contends that the evidence at trial was legally insufficient to convict him
of aggravated sexual battery. In Tennessee, great weight is given to the result reached by the jury
in a criminal trial. A jury verdict of guilt accredits the state’s witnesses and resolves all conflicts in
favor of the state. State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994); State v. Harris, 839 S.W.2d
54, 75 (Tenn. 1992). Therefore, on appeal from a verdict of guilt, the state is entitled to the strongest
legitimate view of the evidence and all reasonable inferences which may be drawn therefrom. State
v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Moreover, a guilty verdict removes the presumption
of innocence which the appellant enjoyed at trial and raises a presumption of guilt on appeal. State
v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). The appellant has the burden of overcoming this
presumption of guilt. Id.
          Where a defendant challenges the sufficiency of the evidence on appeal, the relevant question
for the reviewing Court is whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781,
2789, 61 L. Ed. 2d 56 (1979); State v. Abrams, 935 S.W.2d 399, 401 (Tenn. 1996).
          In this case, the defendant was convicted of aggravated sexual battery. At the time of his
conviction, Tenn. Code Ann. § 39-13-504 (1991) provided:
                   (a) Aggravated sexual battery is unlawful sexual contact with a victim by the
                   defendant or the defendant by a victim accompanied by any of the circumstances
                   listed in § 39-13-502(a).




         3
             In that case the Court of Criminal Appeals held that failure to allege a culpable mental state in an indictment
was fatal.

                                                             -3-
One of the circumstances listed in Tenn. Code Ann. § 39-13-502(a) was that: (4) the victim was less
than thirteen (13) years of age.4
        In this case, the victim testified that she was under thirteen (13) years old at the time of the
incident in question, and that the defendant forced her to touch his penis. This constitutes unlawful
sexual contact with a victim under thirteen (13) years of age. Thus the evidence was sufficient to
convict the defendant of aggravated sexual battery. This issue is without merit.

                                             Bill of Particulars
        The defendant also claims that the evidence was insufficient because the proof at trial varied
from the incidents alleged in the bill of particulars. Specifically, the defendant claims the proof
varied from the bill of particulars because (1) the bill of particulars alleged that the defendant caused
the victim to touch his penis with her mouth, but the victim testified at trial that the defendant caused
the victim to touch his penis with her hand, and (2) the proof did not establish that the incidents
happened within the time period alleged in the bill of particulars. Because we find that any variances
were neither material nor prejudicial, we disagree.
        In this case, the bill of particulars stated
                 [t]hat the defendant . . . did on the ____ day of September, 1991, and
                 on divers and diverse dates between that day and the ____ day of
                 November, 1991, sexually penetrate [A.L.] by placing his finger in
                [her] vagina. The defendant also had sexual contact with [A.L] by
                 touching her vagina with both his penis and his mouth. The
                 defendant also caused [A.L.] to have contact with him by causing
                 [her] to touch his penis with her mouth. . . .

The purpose of the bill of particulars is to provide the accused with sufficient information about the
offense alleged in the indictment to permit the accused (a) to prepare a defense, (b) to avoid
prejudicial surprise at trial, and (c) to enable the accused to preserve a plea of double jeopardy. State
v. Byrd, 820 S.W.2d 739, 741 (Tenn. 1991) ; State v. Campbell, 904 S.W.2d 608, 611 (Tenn. Crim.
App. 1995). Those purposes were adequately served in this case.
        A variance between an indictment or a subsequent bill of particulars and the evidence
presented at trial is not fatal unless it is both material and prejudicial. State v. Moss, 662 S.W.2d
590, 592 (Tenn. 1984); State v. Ealey, 959 S.W.2d 605, 609 (Tenn. Crim. App. 1997). The variance
is not to be regarded as material when the indictment and proof substantially correspond. State v.
Mayes, 854 S.W.2d 638, 640 (Tenn. 1993) (citations omitted). A material variance occurs only if
the prosecutor has attempted to rely upon theories and evidence at the trial that were not fairly
embraced in the allegations made in the charging instrument. Id.; Ealey, 959 S.W.2d at 609. In this
case, although the bill of particulars charged that the defendant had forced the victim to touch his

         4
           A 1992 amendment to Tenn Code Ann. § 39-13-502 deleted the subsection that prohibited sexual penetration
of a victim less than thirteen (13 ) years of age an d created a new Class A felony charge of rape of a child. This Court
held, in State v. Case, 884 S.W.2d 146 (Tenn. Crim. App. 1994), however, that aggravated sexual battery w as still a
crime under T enn. Co de Ann . § 39-13 -504 if it inv olved a v ictim under th irteen (13) years of age, even though the
subsection had been deleted. In 1993, the legislature codified this decision in a new version of section 50 4. See Tenn.
Code A nn. § 39 -13-50 4 (1997 ).

                                                          -4-
penis with her mouth, the victim testified that the defendant forced her to touch his penis with her
hand. The allegations contained in the bill of particulars substantially corresponded with this proof.
Furthermore, the defendant was not subject to unfair surprise, because the victim had given the same
testimony in the first trial. Therefore, this slight variance was not material.
         The defendant also claims that the victim was unable to consistently testify as to when the
offense took place. In Byrd, the Tennessee Supreme Court recognized that in most child sex abuse
cases the state is unable to offer the specific date when an alleged offense occurred. 820 S.W.2d
at 741. When the timing of the incident is not an essential element of the charges, an accused's
conviction may be affirmed if it appears the defense of the accused was not hampered by the lack
of specificity of the charging instrument. Id. at 742. In this case, the victim testified that the
incidents in question occurred in 1991. Although the time frame in the bill of particulars was
somewhat narrower than that alleged by the victim, the defendant was not hampered by the victim’s
failure to testify as to the month in which the incidents occurred. The defendant had ample notice
of the victim’s testimony, because the victim’s testimony in the second trial was virtually identical
to her testimony in the first trial. Furthermore, the defendant did not present an alibi defense for the
dates set forth in the bill of particulars, nor has he offered any indication that he might have
presented one were it not for the dates in the bill of particulars. In short, the defendant has failed to
show how any variance between the bill of particulars and the proof at trial prejudiced his defense.
This issue is without merit.


                                            Double Jeopardy
          The appellant also claims that the state violated his double jeopardy rights in the second trial.
He argues that because the jury acquitted him of aggravated sexual battery (count two in the original
trial), the acquittal foreclosed any opportunity the state may have had to subsequently charge him
with a similar crime during the time period listed in count two of the presentment. Because count
three of the presentment charged the defendant with aggravated sexual battery (the same statutory
crime as count two in the original trial) during the time period listed in count two of the presentment,
the defendant argues that this is a violation of his right to be protected against double jeopardy.
While the appellant bases his argument on a line of cases beginning with State v. Byrd, we do not
agree that the principles announced in Byrd and its progeny change the fundamental meaning of
double jeopardy. “Such a rule would create an insuperable obstacle to the administration of justice
in many cases in which there is no semblance of the type of oppressive practices at which the
double-jeopardy prohibition is aimed.” Wade v. Hunter, 336 U.S. 684, 688-689, 69 S. Ct. 834,
836-837, 93 L. Ed. 974 (1949).
          The double jeopardy prohibition, which protects defendants from “twice being placed in
jeopardy for the same offense,” protects against (1) a second prosecution for the same offense
following acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple
punishments for the same offense.5 North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L.
Ed. 2d 656 (1969). It is the first protection that is at issue here.



        5
            U.S. Co nst. Amend V; Ten n. Const. art. I, § 10.

                                                            -5-
         In Byrd, the trial court dismissed a multi-count presentment when the state was unable to
significantly narrow a broad time-frame alleged in that instrument. Upholding this Court’s reversal
of the trial court, the Tennessee Supreme Court opined, in dictum, that the broad time-frame alleged
in the presentment did not violate the defendant’s double jeopardy rights because “the state would
obviously be stopped from initiating subsequent prosecutions for any similar offenses against the
same victims occurring within the same time period.” Byrd, 820 S.W.2d at 741 (citations omitted).
         The Supreme Court echoed that dictum in State v. Shelton, 851 S.W.2d 134, 137 (Tenn.
1993). In that case, the Court reversed the defendant’s conviction for aggravated sexual battery
because although the state had presented evidence of multiple acts that could constitute aggravated
sexual battery, the trial judge had neglected to force the state to elect an act upon which to rely. The
Court explained that the election requirement normally serves to (1) allow a defendant to adequately
prepare for trial, (2) protect the defendant from double jeopardy, and (3) protect the defendant’s right
to a unanimous jury verdict. Shelton, 851 S.W.2d at 137 (citing Burlison v. State, 501 S.W.2d 801,
803 (Tenn. 1973)). The Court then opined that the “second concern [of the Burlison Court] is largely
moot [in this case], because an accused is protected from double jeopardy for the type of offense or
offenses charged during the entire time period covered in the indictment.” Shelton, 851 S.W.2d at
137 (citing State v. Hardin, 691 S.W.2d 578, 580-81 (Tenn. Crim. App. 1985)).
         This case is distinguishable from Byrd and Shelton because here the original charge ended
in a mistrial. It is well-settled that the protection of the Double Jeopardy Clause by its terms applies
only if there has been some event, such as an acquittal or a conviction, that terminates the original
jeopardy: "[W]ithout exception, the courts have held that the trial judge may discharge a genuinely
deadlocked jury and require the defendant to submit to a second trial. This rule accords recognition
to society's interest in giving the prosecution one complete opportunity to convict those who have
violated its laws." Arizona v. Washington, 434 U.S. 497, 509, 98 S. Ct. 824, 832, 54 L. Ed. 2d 717
(1978) (emphasis added). Thus, neither the failure of a jury to reach a verdict nor a trial court's
declaration of a mistrial following a hung jury is an event that terminates the original jeopardy. Id.;
Richardson v. United States, 468 U.S. 317, 323-24, 104 S. Ct. 3081, 3085, 82 L. Ed. 2d 242, 250
(1984); State v. Mounce, 859 S.W.2d 319, 322 (Tenn. 1993). In this case, the jury in the first trial
failed to reach a verdict as to counts one and three. Thus, original jeopardy never terminated on
either of those counts until the jury’s verdict in the second trial.
         This issue is without merit.

                                       Closing Argument
       Next, the defendant contends that the state’s closing arguments were improper, because the
prosecutor argued facts not properly in evidence. After a thorough review of the trial record, we
disagree. Technically, this issue is waived due to counsel's failure to impose contemporaneous
objections. T.R.A.P. 36(a); State v. Seay, 945 S.W.2d 755, 762 (Tenn. Crim. App. 1996). In
addition the defendant’s argument fails on the merits.
       "Trial courts have substantial discretionary authority in determining the propriety of final
argument. Although counsel is generally given wide latitude, courts must restrict any improper
commentary." Coker v. State, 911 S.W.2d 357, 368 (Tenn. Crim. App. 1995) (citing Sparks v. State,
563 S.W.2d 564 (Tenn. Crim. App. 1978)). The broad discretion accorded to trial courts in
controlling the argument of counsel "will not be reviewed absent abuse of that discretion." Smith


                                                  -6-
v. State, 527 S.W.2d 737, 739 (Tenn. 1975); see also State v. Payton, 782 S.W.2d 490, 496 (Tenn.
Crim. App. 1989). The bounds of proper closing argument are delineated by the facts in evidence.
State v. Pulliam, 950 S.W.2d 360, 368 (Tenn. Crim. App. 1996). Conversely, facts not in evidence
may not be the subject of comment by counsel during closing argument. State v. Mackey, 638
S.W.2d 830, 836 (Tenn. Crim. App. 1982).
        The defendant first complains that the prosecutor mischaracterized the pediatrician’s
testimony during closing argument. We disagree. During direct examination, Dr. Campbell was
specifically asked “[W]ould these findings be consistent with a finger being placed in the child’s
vagina?” She replied, “[Y]es, any object actually if it just made trauma or damage to that area that
would heal like that.” Dr. Campbell further testified that “[the findings] would be extremely unusual
for accidental injury.” In his closing argument, the prosecutor stated “[Dr. Campbell] told you that
that penetration that she saw is exactly consistent with what happened. She said this is exactly what
she would expect to find if a finger were placed inside her vagina.” Dr. Campbell’s testimony
indicated that the injury was consistent with digital penetration; thus, the prosecutor’s remark was
not a mischaracterization.
        The defendant also complains that the victim was allowed to testify that she saw “white stuff
on the finger” of the defendant, and that the prosecutor mentioned this in his closing argument. As
will be discussed below, this testimony was relevant not only to show the relationship between the
victim and the defendant, but to refute the defense’s contention that the victim initiated contact.
Because it was properly admitted as evidence, referring to it in a closing argument was not error.
        Next, the defendant complains that after describing each act which was elected, the
prosecutor stated that each specific act occurred more than once. Specifically, the prosecutor stated
that “[the victim] told you that [the defendant] put his finger inside her vagina. She also told you
that that happened more than one time.” The prosecutor also stated “[the victim] told you how he
made her move her hand up and down on [the defendant’s] penis. And she told you that that
happened more than one time.” During trial, the victim specifically testified that the defendant
placed his finger in her vagina twice, and that he forced her to touch his penis twice. The state's
argument was properly based upon evidence that had been presented to the jury.
        The defendant also complains that the prosecutor referred to other evidence outside the
record in his closing argument. Specifically, the prosecutor stated “[the victim] told Tammy Judd
with the Department of Human Services[:] She said ‘he abused me.’ What did she tell the next
person, Nancy Jackson Eldridge? The same story, ‘this man sexually abused me.’” Again, we
disagree with the defendant. During cross examination of the victim, the defense attorney asked the
victim whether she remembered telling Nancy Jackson Eldridge that the sexual abuse occurred
during 1991, and the victim responded affirmatively. Furthermore, During the state’s redirect
examination of the victim, the victim testified that Tammy Judd came to her house and took a
statement regarding the sexual abuse. Finally, during the defendant’s closing argument, defense
counsel stated “[a] month later [A.L.] talked to [Tammy Judd], a police officer. She tells the story
[about the sexual abuse] again.” Thus, the prosecutor’s closing argument was proper.
This issue is without merit.




                                                -7-
                                             Prior Bad Acts
         Finally, the defendant claims that the trial court erred in admitting evidence that the
defendant had committed sexual crimes other than the ones corresponding to the counts listed in the
presentment. Specifically, the defendant complains that the prosecutor should not have been able
to elicit testimony (1) that the defendant gave A.L. “more bad touches” than those elected, (2) that
the defendant tried to force A.L. to eat “a whitish, clearish” substance on the defendant’s finger, and
(2) that the defendant touched A.L.’s vagina while the two watched Peter Pan.
         In Tennessee, evidence that the defendant has committed other crimes is governed by Rule
of Evidence 404(b). The rule states: “[E]vidence 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. It
may, however, be admissible for other purposes.“ Tenn. R. Evid. 404(b). The rule establishes
procedures which the trial court must use in deciding whether evidence should be admitted or
excluded.6 Only in an exceptional case will another crime, wrong, or bad act be relevant to an issue
other than the accused's character. State v. Luellen, 867 S.W.2d 736, 740 (Tenn. Crim. App. 1992).
Such exceptional cases include identity, intent, motive, opportunity, or rebuttal of mistake or
accident. Id. In this case, the defendant did not object to the introduction of prior acts; thus,
technically, this issue is waived. T.R.A.P. 36(a). We find, however, that testimony regarding the
“other bad touches” and the substance on the defendant’s finger was admissible to show the
relationship between the defendant and the victim, the opportunity the defendant had to commit the
crimes, and to rebut the defense’s assertion that the victim and the defendant were never alone
together. Furthermore, the victim testified that these events occurred when she was in the first
grade, before Christmas. The presentment listed the applicable time period as September and
November 1991. although Tennessee does not have a “sex-crimes” exception to the general
prohibition against character evidence, we are satisfied that the incidents occurred within the time
period covered in the presentment, and are thus admissible pursuant to State v. Rickman, 876 S.W.2d
824 (Tenn. 1994).
         Admission of the Peter Pan incident, however, was prejudicial to the defendant for other
reasons. A prerequisite to admitting evidence under Rule 404(b) is that the trial court find by clear
and convincing evidence that the defendant committed the prior crime. Tenn. R. Evid. 404
(Advisory Commission Comments); State v. DuBose, 953 S.W.2d 649, 654 (Tenn. 1997); State v.
Parton, 694 S.W.2d 299, 303 (Tenn. 1985). The Tennessee Supreme Court has construed the
requirement that the trial court find that the defendant committed the crime by clear and convincing
evidence to preclude the introduction of evidence of a prior crime when a jury has acquitted the
defendant of committing that crime. In State v. Holman, the defendant was charged with theft of a
wrist watch. 611 S.W.2d 411 (Tenn. 1981). Over the defendant’s objection, the trial court allowed
the state to introduce evidence that the defendant had previously stolen another wrist watch in the


         6
           The rule mandates, however, that certain conditions must be satisfied before the evidence may be admitted.
The conditions which must be satisfied before allowing such evidence are: (1) The court upon request must hold a
hearing outside the jury's presence; (2) the court must de termine that a material issue exists other than conduct
conforming with a character trait and must upon request state on the record the material issue, the ruling, and the reasons
for admitting the evidence; and (3) the court must exclude the evidence if its probative value is outweighed by the danger
of unfair prejudice. In this case, the defendant did not request a jury out hearing.



                                                           -8-
same manner he had stolen the watch at issue. The trial court also denied the defendant the
opportunity to prove that he had been acquitted for the previous crime. The Tennessee Supreme
Court reversed the conviction, reasoning that
               the effect of any acquittal is to render less than “clear and
               convincing” the proffered evidence that the defendant committed
               the prior crime . . . . For such evidence to have any relevance or
               use in the case on trial, the jury would have to infer that, despite
               the acquittal, the defendant nevertheless was guilty of the prior
               crime. No such inference can properly be drawn from an acquittal .
               . . .7

Holman, 611 S.W.2d at 413. Thus, the Supreme Court announced that evidence of a crime for which
the defendant was acquitted can never be admissible as evidence of a prior crime in a trial, despite
its relevance on issues other than propensity.8
         In this case, the state introduced evidence during the second trial that the defendant touched
the victim’s vagina while watching Peter Pan, even though the defendant had been acquitted of a
charge made in connection with that behavior in the first trial. This incident would only have been
relevant if the defendant had intentionally touched the victim’s vagina. As noted above, however,
an acquittal precludes the possibility of an inference that the defendant committed the crime.
Furthermore, the jury in the first trial was unable to reach a verdict on the charge under review here.
Thus, given that the evidence at the second trial was almost identical to the first and the possible
prejudicial effect of introducing evidence of a crime for which the defendant was acquitted, we are
unable to conclude that exclusion of the Peter Pan incident would not have affected the result in the
second trial.




         7
          Dictum in Holman, howev er, sugge sts that use of th e other crim e may b e perm issible if the acquittal was based
on something other than insufficient evidence. Holman, 611 S.W.2d at 413. In this case, the acquittal could only have
been based on insufficient evidence. There was no question that the victim was under thirteen (13) years of age at the
time; thus, the jury must have concluded that the state failed to prove an “unlawful sexual contact.” Tenn. Code Ann.
§ 39-13-504.
         8
          The dissent in Holman notes that, by adopting this rule, the Tennessee Supreme Court adopts a minority view.
Holman, 611 S.W.2d at 413 (Fo nes, J., dissenting)(citing 86 A.L.R.2d 113 2). Moreover, the view that an act which has
been the subject of acquittal may never be introduced as a prior crime in sentencing has been rejected in sentencing
proceedings, because “[a]n acquittal is normally not considered for evidentiary purposes to equate with factual
innocence, only with the existence of a reasona ble dou bt. As such , an acqu ittal is not view ed to negate th e possibility
that criminal involvement may be shown to have existed by a preponderance of the evidence.” State v. D esirey, 909
S.W.2d 20, 31 (Tenn. Crim. App) perm. to appeal denied (Tenn. 1995). Finally, because prior crimes must be proven
by clear and convincing evidence and guilty verdicts are based on proof beyond a reasonable doubt, the United States
Supreme Court declined to automatically exclude such evidence on the basis of collateral estoppel. Dowling v. United
States, 493 U.S. 342, 110 S. Ct. 668, 107 L. Ed. 2d 708 (1990). Nevertheless, the Holman decision re mains th e law in
Tennessee.

                                                            -9-
       Accordingly, the judgment of the trial court is reversed and remanded for a new trial on the
charge of aggravated sexual battery.




                                                      ___________________________________
                                                      JERRY L. SMITH, JUDGE




                                               -10-
