State v. Leland Ray Reeves

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED
SEPTEMBER 1998 SESSION
March 23, 1999

Cecil W. Crowson
STATE OF TENNESSEE, * Appellate Court Clerk
C.C.A. # 01C01-9711-CR-00515

Appellee, * MACON COUNTY

VS. * Hon. J. O. Bond, Judge

LELAND RAY REEVES, * (Four Counts of Statutory Rape; Rape)

Appellant. *

For Appellant: For Appellee:

John E. Herbison John Knox Walkup
2016 Eighth Avenue South Attorney General & Reporter
Nashville, TN 37204
(on appeal) Timothy Behan
Assistant Attorney General
Jerry Hunt Criminal Justice Division
East Main Street 2nd Floor, Cordell Hull Building
Lebanon, TN 37087 425 Fifth Avenue North
(at trial) Nashville, TN 37243-0493

John Wooten
Assistant District Attorney General
203 Greentop Street
P.O. Box 178
Hartsville, TN 37074

OPINION FILED:_____________________

AFFIRMED IN PART; REVERSED AND DISMISSED IN PART

GARY R. WADE, PRESIDING JUDGE
 OPINION

The defendant, Leland Ray Reeves, was convicted of four counts of

statutory rape and one count of rape. The trial court imposed sentences as follows:

Count Offense Sentence

1 statutory rape one year

2 statutory rape one year

3 rape eight years

4 statutory rape two years

5 statutory rape two years

Count five is to be served consecutively to the remaining counts for an effective term

of ten years.

In this appeal of right, the defendant presents the following issues:

(I) whether the evidence is sufficient to support the
convictions;

(II) whether venue has been established for the rape
conviction;

(III) whether the statutory rape convictions should be
reversed and dismissed because the defendant was
never indicted for those offenses;

(IV) whether the statutory rape convictions are barred by
the statute of limitations;

(V) whether the trial court erred by denying the
defendant's motion for a bill of particulars;

(VI) whether the trial court erred by allowing the victim to
testify on redirect about prior bad acts outside the time
frame of the indictment;

(VII) whether the trial court erred by admitting "fresh-
complaint" statements made by the victim;

(VIII) whether prosecutorial misconduct requires
reversal; and

(IX) whether the sentence is excessive.

2
 We affirm the rape conviction; we must, however, reverse and dismiss

each of the four convictions for statutory rape.

In 1991, the defendant and his wife, Kathy Gale Reeves, and her three

daughters moved from Indiana to Macon County, Tennessee. The victim, E.M.,1

who was one of Ms. Reeves' daughters and was born November 5, 1977, was in the

seventh grade. At the time, the family first lived in a camper and later moved into a

trailer in a wooded area owned by the defendant's mother.

In May of 1991, the defendant and the victim went to his mother's

trailer to use the telephone. While there, the defendant took the victim into the

bedroom, removed her clothing, and had sexual intercourse with her. Afterward, the

defendant warned the victim not to tell her mother because "it was a private thing

between [them]."

A second incident occurred in the late summer of 1991 just after the

victim entered the eighth grade. The defendant had sexual intercourse with her in

the camper. A third incident occurred in the spring of 1992, shortly after the victim

had been baptized. The victim had gone for a walk. The defendant followed her

into a neighbor's barn. When the defendant began to remove the victim's clothing,

the victim protested because, she explained, she liked a neighbor who lived nearby

and did not want to be discovered. When the defendant replied that their

relationship was their "little secret," he was able to engage her in sexual intercourse.

1
It is the policy of the cour t not to reve al the nam es of mino rs w ho ar e vict ims o f sex ual
abuse.

3
 A fourth incident occurred in the fall of 1992 after the victim began her

ninth grade in school. The victim testified that the defendant stopped his vehicle in

a field en route to a meeting with Ms. Reeves. He then removed the victim's pants

and digitally penetrated the vagina of the victim. Ms. Reeves approached the

vehicle and when the defendant ordered the victim into the back seat of the car, she

asked for an explanation of why they were parked in the middle of the field with the

car lights off. The defendant claimed they had fallen asleep. The victim hid the

truth because, she explained, she was afraid of the defendant. At trial, the victim

testified that she first informed her mother of the incidents only after Ms. Reeves

separated from the defendant. She stated that she feared the defendant due to his

abusive nature.

A fifth incident occurred in March of 1993, shortly before Ms. Reeves

separated from the defendant. On that occasion, the defendant directed the victim

to remove her clothes, after which she performed oral sex.

Ms. Reeves, who divorced the defendant in 1994, testified that the

defendant often objected when all three of her daughters joined her on errands.

She recalled that the defendant complained that he was "lonesome" without at least

one of her daughters and that the defendant was alone with the victim more often

than with her other two daughters. She specifically recalled the incident when she

discovered the defendant and the victim parked in a field, describing them as "kind

of flushed." Ms. Reeves testified that she suspected that the defendant was

abusing E.M. and when she confronted her, E.M. could not look at her. Ms. Reeves

separated from the defendant in the early part of 1993 and later considered a

reconciliation. It was at that point that the victim informed her of the abuse.

4
 On cross-examination, Ms. Reeves acknowledged that she had

disagreed with the defendant over the property settlement. She testified that she

and her daughters moved away from the defendant in March of 1993, that the

sexual abuse allegations were made in May of 1993, and that she filed for divorce in

December of that year.

Beverly Rosof, a family nurse practitioner employed by Our Kids Clinic

where her primary duty was to evaluate claims of sexual abuse, determined during

an examination that the vagina of the victim had been penetrated in some manner.

While unable to conclusively state that the victim had been sexually abused, she did

testify that the damage to the victim's hymen was significant enough to have

warranted a report to the Department of Human Services.

The defendant testified that while his family utilized a telephone jack

outside his mother's trailer, she would not allow anyone inside the trailer. He

specifically denied ever having been alone with E.M. there. The defendant also

stated that he and Ms. Reeves separated for a short time in April of 1992,

reconciled, and then started attending a church where E.M. was baptized. The

defendant testified that there were disagreements over financial matters during the

divorce litigation, including a dispute over the family trailer. The defendant stated

that he returned to Indiana in 1993 and did not learn that he faced any criminal

charges until 1995.

Michael Reeves, the defendant's son, testified that he shared a

residence with the defendant, Ms. Reeves, and Ms. Reeves' three daughters during

the term of the marriage. He claimed that the living quarters of the family were so

cramped that his father was never alone with the victim. The younger Reeves

5
contended that on one occasion the victim claimed to some students at school that

she had engaged him in fellatio, an allegation he vehemently denied.

The defendant's mother, Mazell Reeves, testified that after Kathy

Reeves separated from the defendant in March of 1993, she spoke on the phone

with her several times. She claimed that Kathy Reeves, who had a disagreement

with the defendant over financial matters related to the subsequent divorce,

threatened to "get even" with the defendant. Mazell Reeves also stated that she

had barred the defendant's family from entering her trailer because of a

disagreement with Kathy Reeves.

I

The defendant first claims that the evidence is insufficient because

there was no proof of either force or coercion, requisite elements of the single rape

conviction. He also contends that the victim was an accomplice and that there was

insufficient corroboration to support three of the statutory rape convictions.

We are guided in our analysis by several well-established principles.

On appeal, the state is entitled to the strongest legitimate view of the evidence and

all reasonable inferences which might be drawn therefrom. State v. Cabbage, 571

S.W.2d 832 (Tenn. 1978). The credibility of the witnesses, the weight to be given

their testimony, and the reconciliation of conflicts in the evidence are matters

entrusted exclusively to the jury as the trier of fact. Byrge v. State, 575 S.W.2d 292

(Tenn. Crim. App. 1978). A criminal conviction can be set aside only when the

reviewing court finds that the "evidence is insufficient to support the finding by the

trier of fact of guilt beyond a reasonable doubt." Tenn. R. App. P. 13(e). This court

must not reweigh nor reevaluate the evidence; nor may we substitute our

6
inferences for those drawn by the jury. Liakas v. State, 286 S.W.2d 856 (Tenn.

1956).

At the time of the offense, rape was defined as "unlawful sexual

penetration of the victim by the defendant ... [where] [f]orce or coercion is used to

accomplish the act." Tenn. Code Ann. § 39-13-503(a)(1). "'Force' means

compulsion by the use of physical power or violence and shall be broadly construed

to accomplish the purposes of this title." Tenn. Code Ann. § 39-11-106(a)(12).

"Coercion" is defined as the "threat of kidnapping, extortion, force or violence to be

performed immediately or in the future or the use of parental, custodial, or official

authority over a child less than fifteen (15) years of age." Tenn. Code Ann. § 39-13-

501(1).

The victim testified that as to count three, she informed the defendant

that she did not want to engage in sexual intercourse but that "he did it anyway."

She also testified that she was afraid of the defendant because he tended to be

physically abusive. In our view, this evidence is sufficient to support the inference

that the rape was accomplished through the use of coercion. The record supports

the conclusion that the victim acquiesced to the sexual encounter because of the

implicit threat of violence.

The defendant also complains that testimony of his participation in

three of the statutory rapes was inadequately corroborated.2 Rule 601, Tenn. R.

Evid., provides that every witness is "presumed competent." Our law, however,

2
He does not challenge the statutory rape which occurred while he and the victim were parked
in the car in a field. Apparently, the defendant concedes corroboration by the victim's mother, who
testified that the defenda nt and the victim we re "flushed ."

7
requires corroboration of the testimony of an accomplice before a conviction can

stand. Marshall v. State, 497 S.W.2d 761 (Tenn. Crim. App. 1973); see Rule 601,

Tenn. R. Evid. That is, there must be some fact entirely independent of accomplice

testimony which, taken by itself, leads to the inference that the defendant is guilty of

the crime. The corroborative testimony must in some way establish the identity of

the defendant. Hawkins v. State, 469 S.W.2d 515 (Tenn. Crim. App. 1971). Such

evidence may be direct or circumstantial and it need not be adequate taken alone to

support the conviction. Id. The requirement is met if the corroborative evidence

fairly and legitimately tends to connect a defendant with the commission of the crime

charged. Stanley v. State, 222 S.W.2d 384 (Tenn. 1949); Henley v. State, 489

S.W.2d 53 (Tenn. Crim. App. 1972). Slight circumstances may be sufficient to

furnish the necessary corroboration. Garton v. State, 332 S.W.2d 169 (Tenn. 1960).

Whether an accomplice's testimony has been sufficiently corroborated is a matter

entrusted to the jury as the trier of fact. State v. Sanders, 842 S.W.2d 257 (Tenn.

Crim. App. 1992).

Initially, we must agree with the trial court that the victim was by

definition an accomplice in each of the four statutory rapes, an offense which implies

consent on the part of the victim. See generally State v, McKnight, 900 S.W.2d 36,

50 (Tenn. Crim. App. 1994) (the court reviewed a statutory rape conviction to see if

the accomplice testimony was adequately corroborated). If the minor consents to

the unlawful sexual activity, she may be an accomplice. See Britt v. State, 450

S.W.2d 48, 50 (Tenn. Crim. App. 1969). 3

The jury was instructed that the victim was an accomplice and that her

3
In 1991, this common law rule was modified by statute to provide that children under the age
of thirteen m ay not be conside red an a ccom plice in certa in sex-re lated offens es. See Tenn. Code
Ann. § 4 0-17-12 1.

8
testimony would require corroboration. Dr. Rosof testified that the vagina of the

victim had been penetrated. Although she could not determine what type of

penetration had occurred, the damage to the hymen was significant enough that she

would have reported the results of her examination to the Department of Human

Services, even if the victim had not informed her she had been sexually abused.

Furthermore, Ms. Kathy Reeves testified that the defendant always asked that one

of the daughters remain with him when she left the residence and that E.M. was left

behind the most often. Corroborative evidence need only be slight and may be

circumstantial. In our view, this testimony passes the test.

II

The defendant next complains that venue has not been established for

the rape conviction. He contends there is no proof that the barn where the rape

occurred is located in Macon County.

The accused has a right to a trial by an impartial jury chosen from the

county in which the crime was committed. Tenn. Const. art. I, § 9. See also Tenn.

R. Crim. P. 18. Thus founded in the constitution, proof of venue is necessary to

establish jurisdiction. Hopson v. State, 299 S.W.2d 11, 14 (Tenn. 1957). Venue

may be shown only by a preponderance of the evidence. The state has the burden

of proof to show that the offense was committed in the county of the indictment.

Harvey v. State, 376 S.W.2d 497, 498 (Tenn. 1964); Hopper v. State, 326 S.W.2d

448, 451 (Tenn. 1959). Slight evidence, including circumstantial evidence, will be

sufficient if the evidence is uncontradicted. State v. Bennett, 549 S.W.2d 949

(Tenn. 1977).

Here, the victim testified that the rape occurred in a barn located on

9
her neighbor Miller's property. The defendant testified that the Miller family paid his

family to work in tobacco. Checks written by the Millers indicate they lived in Macon

County. That uncontested evidence, in our view, is sufficient to establish venue.

III

The defendant next argues that the four statutory rape convictions

should be reversed and dismissed because he was indicted for rape yet convicted

of statutory rape, which is not a lesser offense of rape. The defendant argues his

situation is controlled by State v. Trusty, 919 S.W.2d 305 (Tenn. 1996). In Trusty,

the defendant was charged with attempted first degree murder. The jury returned a

verdict of aggravated assault. On appeal, our supreme court ruled that assault is

not a lesser offense of attempted murder and thus, the defendant had been

convicted of a crime for which he had never been charged. Our high court ruled that

"[u]nder Tennessee law, a conviction for an unindicted offense that is not a lesser

degree of the offense charged or a lesser included offense may not stand." Id. at

307. In response, the state contends that because the defendant requested the

instructions on statutory rape, there was a constructive amendment to the

indictment.

Initially, the trial judge has a duty to give a complete charge of the law

applicable to the facts of the case. State v. Harbison, 704 S.W.2d 314, 319 (Tenn.

1986). There is an obligation "to charge the jury as to all of the law of each offense

included in the indictment, without any request on the part of the defendant to do

so." Tenn. Code Ann. § 40-18-110(a). "Pursuant to our statute, rule, and case law

interpretations, defendants are entitled to jury instructions on all [lesser offenses], if

the evidence would support a conviction for the offense." Trusty, 919 S.W.2d at

311. Such a charge "allows the jury to consider all relevant offenses in determining

10
the appropriate offense, if any, for conviction" and "more evenly balances the rights

of the defendant and the prosecution and serves the interests of justice." Id. It is

only when the record is devoid of evidence to support an inference of guilt of the

lesser offense that the trial court is relieved of the responsibility to charge the lesser

crime. State v. Stephenson, 878 S.W.2d 530, 549-50 (Tenn. 1994); State v. Boyd,

797 S.W.2d 589, 593 (Tenn. 1990).

In Trusty, 919 S.W.2d at 310, our supreme court ruled as follows:

Tennessee law recognizes two types of lesser offenses
that may be included in the offense charged in the
indictment: offenses necessarily included in the
indictment and offenses that are lesser grades of the
charged offense. An offense is "necessarily included in
the indictment ... only if the elements of the included
offense are a subset of the elements of the charged
offense and only if the greater offense cannot be
committed without also committing the lesser offense."

Id. Guidance was also provided as to how to determine whether an offense is a

lesser grade or class of the offense charged: "[o]ne need only look to the statutes to

determine whether a given offense is a lesser grade or class of the crime charged."

Id. at 310. By way of example, the court noted that the legislature has divided

criminal homicide "into the grades of first-degree murder, second-degree murder,

voluntary manslaughter, criminally negligent homicide, and vehicular homicide." Id.

A significant question is whether statutory rape is a lesser offense of

rape. It is not a lesser offense which is necessarily included in the indictment

because statutory rape contains elements not included in rape; that is, the victim

must be under age and there must be a four-year age difference between the victim

and defendant. Whether it is a lesser grade, however, presents a more difficult

determination.

11
 In State v. Jones, 889 S.W.2d 225 (Tenn. Crim. App. 1994), the

defendant was charged with aggravated rape; the aggravating circumstance was

that the victim was under thirteen years of age. Tenn. Code Ann. § 39-13-502

(1991 repl.)4 The defendant complained on appeal that consent would qualify as a

defense to the prosecution; because he offered proof that he thought the victim was

older than twelve years of age, the trial court should have charged the lesser

offense of statutory rape. He alleged that mistake of fact should have been an

available defense. While this court found that consent would not be a defense, we

found reversible error for the failure to charge mistake of fact or provide instructions

on statutory rape, which was characterized as a lesser offense of rape in that

instance. Jones, 889 S.W.2d at 230. See also State v. Hallock, 875 S.W.2d 285,

294 (Tenn. Crim. App. 1993) (the defendant complained about the court's failure to

charge statutory rape as a lesser offense of rape and our court ruled the evidence

did not support such an instruction).

Other cases, however, suggest that statutory rape cannot be a lesser

grade offense of rape. In State v. Woodcock, 922 S.W.2d 904 (Tenn. Crim. App.

1995), this court limited the holding of Jones to its particular facts, concluding that

statutory rape was a lesser offense based on "the particular circumstances of [the]

case." 922 S.W.2d at 913 (the defense of mistake of fact as to age combined with a

charge of rape which became aggravated due to the actual age of the victim).

The opinions in Jones, Hallock , and Woodcock were all released before the

supreme court filed its ruling in Trusty. In a subsequent case, State v. Ealey, 959

S.W.2d 605 (Tenn. Crim. App. 1997), our court reviewed the issue in light of Trusty

4
In 1992, our legislature created the separate offense of rape of a child. Tenn. Code Ann.
§ 39-13-522 (1996 S upp.).

12
and concluded statutory rape is neither a lesser included nor lesser grade offense of

rape:

Nor are we prepared to hold that statutory rape is
a lesser grade offense of aggravated rape/rape of a
child. Trusty provides that "the grades or classes of any
offense are established by statute" and that "[o]ne need
only look to the statutes to determine whether a given
offense is a lesser grade or class of the crime charged."
(emphasis in original). [T]he sex crimes do not lend
themselves to such simple categorization. Although both
aggravated rape/rape of a child and statutory rape are
included in Part 5 of Chapter 13 of Title 39 of our Code,
Part 5 also includes provisions dealing with homosexual
acts, public indecency, and prostitution. Certainly,
prostitution is not a lesser grade or class of rape, in spite
of its inclusion in the same Part. Thus, that statutory
rape is included in the same Part as the sexual assault
crimes does not ipso facto make it a lesser grade or
offense thereof. Moreover, the very nature of the
statutory rape offense is fundamentally different from the
sexual assault crimes. For instance, the sexual assault
crimes all require some form of "unlawful" contact
between the accused and the victim; statutory rape does
not. The age of the defendant is irrelevant with respect
to all of the sexual assault crimes; it is a crucial element
of statutory rape. All of the sexual assault crimes
contemplate the lack of effective consent by the victim;
statutory rape contemplates circumstances in which the
sexual relations are admittedly consensual. In short,
neither Trusty nor the statutory scheme nor a
consideration of the nature of statutory rape convinces
us that it is a lesser grade or class of the rape of a child
offense charged in this case.

Id. at 611 (citations omitted). Unpublished opinions of this court have followed

Ealey in ruling statutory rape is not a lesser offense of rape. See State v. Donald

Long, No. 02C01-9610-CC-00362 (Tenn. Crim. App., at Jackson, Feb. 24, 1998);

State v. Michael Lynn Walton, No. 01C01-9509-CR-00290 (Tenn. Crim. App., at

Nashville, Nov. 12, 1997). Based upon this precedent, we conclude that statutory

rape is not a lesser grade of rape.

This court must now address the issue of whether the defense

counsel's request for a charge on statutory rape qualifies as an amendment to the

13
indictment. In Ealey, the defendant, who was charged with two counts of rape,

requested a jury charge on statutory rape and was convicted of that offense. 959

S.W.2d at 610. This court ruled that although statutory rape is not a lesser offense

of rape, defense counsel's request for the charge on statutory rape "amounted to a

consensual amendment to his presentment such that he was properly charged with

statutory rape in addition to rape of a child." Id. The court noted that Tenn. R. Crim.

P. 7(b) provides that "[a]n indictment, presentment or information may be amended

in all cases with the consent of the defendant." Id. See also State v. Billy Joe

Stokes, No. 01C01-9710-CC-00442 (Tenn. Crim. App., at Nashville, Jan. 19, 1999);

State v. Robert W. Bentley, No. 02C01-9601-CR-00038 (Tenn. Crim. App., at

Jackson, Oct. 17, 1996) (both cases adopting the rationale of Ealey that the request

for the jury instruction amounts to an amendment to the indictment).

While statutory rape is not a lesser offense of rape, the record here

tends to suggest that defense counsel sought the charge, as in Ealey. In our view,

however, counsel's request would be insufficient to cure the problem in this case.

Prior to Ealey, several published opinions of our court had held that the defendant

may not be convicted of an offense for which he is not indicted unless he waives in

writing the right to criminal accusation by the grand jury. State v. Jarnigan, 958

S.W.2d 135, 136-37 (Tenn. Crim. App. 1997); State v. Brackett, 869 S.W.2d 936,

938 (Tenn. Crim. App. 1993); State v. Morgan, 598 S.W.2d 796, 797 (Tenn. Crim.

App. 1979). In our view, Ealey is inconsistent with these prior opinions and we

decline to follow its reasoning, at least as far as it holds that a request for a jury

instruction is sufficient to waive the constitutional right to be charged by the grand

jury. Similarly, in Trusty, no mention is made of whether defense counsel

requested the charge on assault or merely failed to object to the instruction. See

generally Trusty, 919 S.W.2d at 307. Thus, Trusty would appear to control. See

14
also State v. Michael Davenport, 980 S.W.2d 407 (Tenn. Crim. App. 1998) (following

the reasoning of Trusty and granting habeas corpus relief from a conviction for

aggravated assault where the petitioner had been charged with attempted first

degree murder); State v. Jimmy D. Johnson, No. 03C01-9602-CC-00062 (Tenn.

Crim. App., at Knoxville, Oct. 16, 1997) (following the reasoning of Trusty and sua

sponte dismissing an incest conviction where the defendant had been indicted for

rape but pled guilty to incest, which is not a lesser offense of rape).

Our Constitution guarantees that "no person shall be put to answer

any criminal charge but by presentment, indictment, or impeachment." Tenn. Const.

art. I, § 14. "There is ... an absolute right to a criminal accusation by a grand jury."

Brackett, 869 S.W.2d at 938. It applies to all crimes except those involving a fine of

$50.00 or less. Id. (citing Capitol News Co., Inc. v. Metropolitan Government of

Nashville and Davidson Co., 562 S.W.2d 430, 432 (Tenn. 1978)). Absent either

grand jury action or the written waiver of that guarantee, there can be no valid

conviction. Brackett (citing State v. Morgan, 598 S.W.2d 796, 797 (Tenn. Crim. App.

1979)).

In Morgan, a case where the conviction was dismissed because the

defendant did not waive in writing his right to be charged by a grand jury, this court

explained the rule as follows:

[T]his record affirmatively shows that the
defendant did not execute the form waiver appearing on
the state warrant, nor is there any other writing in this
record signed by him whereby he waived his right to an
indictment and trial by jury.

In all (except small) criminal offenses, the rights to
be proceeded against only by indictment or presentment
and to a trial by jury are grounded upon provisions of
Tenn. Const., art. I, §§ 6, 14. These constitutional rights
may be relinquished only by a valid written waiver.

598 S.W.2d at 797 (citations omitted).

15
 Here, because the defendant did not provide a written waiver of his

right to have the grand jury charge statutory rape, the convictions must be set aside.

Id.

In our view, the state's reliance on Rule 7, Tenn. R. Crim. P., to allow a

consensual amendment is misplaced. The rule provides as follows:

(a) General Provision.--The definition, form, use, return,
endorsements, content, and procedure relating to
indictments, presentments and criminal informations shall
be as provided by law.
(b) Amendments of Indictments, Presentments and
Informations.--An indictment, presentment or information
maybe amended in all cases with the consent of the
defendant. If no additional or different offense is thereby
charged and no substantial rights of the defendant are
thereby prejudiced, the court may permit an amendment
without the defendant's consent before jeopardy
attaches.
(c) Bill of Particulars.--Upon motion of the defendant the
court may direct the filing of a bill of particulars so as to
adequately identify the offense charged.

Tenn. R. Crim. P. 7.

An amendment charging a different offense would have to be in

writing. See State v. Jimmy D. Johnson, No. 03C01-9602-CC-00062 (Tenn. Crim.

App., at Knoxville, Oct. 16, 1997). In Johnson, the defendant was indicted for rape.

He pled guilty to incest, apparently believing incest to be a lesser offense of rape.

The sole issue raised on appeal concerned sentencing. A panel of this court,

however, vacated the judgment sua sponte because incest is not a lesser offense.

Judge Tipton, writing for the panel, explained the underlying rationale for the rule:

[T]he defendant's judgment of conviction must be
vacated and this case remanded because he was
convicted for an offense with which he was never
charged. The indictment returned by the grand jury
charged the defendant with rape, but he was convicted of
incest. No amendment to the indictment exists in the
record. ... [A]n indictment is to be in writing. See T.C.A. §

16
 40-13-101(a). Because any amendment would be part of
the indictment, it also must be in writing. In this respect,
a "lawful accusation is a prerequisite to jurisdiction."
Trusty, 919 S.W.2d at 309. In this case, the record on
appeal does not contain a written amendment to the
indictment or any mention of an amendment to the
indictment. With the record completely silent as to the
defendant's position on any amendment, we cannot
presume that an amendment occurred. Thus, the record
reflects that the defendant was convicted of an offense
with which he has not been charged.

Johnson, slip op. at 5, 6.

In summary, because the record does not reflect that the defendant

waived in writing his right to be charged by the grand jury and because there is no

indication that an amendment occurred, the statutory rape convictions must be

reversed and dismissed.

IV

The defendant also argues his convictions for statutory rape are

barred by the statute of limitations. We must agree. The indictment charged five

counts of rape, four of which resulted in convictions for statutory rape. While these

offenses occurred between 1991 and 1993, the indictment was filed in 1996. The

statute of limitations for rape, a Class B felony, is eight years. The limitations period

for statutory rape, a Class E felony, is only two years. See Tenn. Code Ann. §§ 39-

13-506; 40-2-101.

Generally, when a defendant is indicted for a greater offense which is

not barred by the statute of limitations, he may not be convicted of a lesser offense

which is barred by the limitations period. See State v. Hix, 696 S.W.2d 22, 25

(Tenn. Crim. App. 1984), overruled on unrelated issue, State v. Messamore, 937

S.W.2d 916, 919 (Tenn. 1996); Hickey v. State, 174 S.W. 269 (Tenn. 1915). A

17
defendant may waive the statute of limitations, but only if the waiver is knowing and

voluntary. State v. Pearson, 858 S.W.2d 879, 887 (Tenn. 1993). A "waiver ... will

not be presumed where there is no evidence in the record to indicate that the

defendant was made aware of the issue." Id. In this case, there is no proof in the

record to indicate the defendant knew about the statute of limitations. Nor is there

any kind of express waiver. In consequence, the defendant could not have

knowingly and voluntarily waived the protection of the statute of limitations. Thus,

the statutory rape convictions must be reversed and dismissed. Id.

V

The defendant also complains that the trial court erred by denying his

motion for a bill of particulars, requesting the disclosure of the exact time, date and

place of each offense, and the time, date, and place of the victim's first complaint.

The record indicates that the motion was denied. The basis for the trial court's

denial does not appear in the record.

The primary purpose of a bill of particulars is to provide the defendant

with information about the details of the charge, if necessary to the preparation of

his defense. State v. Byrd, 820 S.W.2d 739, 741 (Tenn. 1991). It also serves to

avoid prejudicial surprise and to enable the defendant to preserve a plea against

double jeopardy. Id. See also State v. Hicks, 666 S.W.2d 54, 56 (Tenn. 1984). A

bill of particulars is not, however, a discovery device; it is limited to information a

defendant needs to prepare a defense to the charges. Tenn. R. Crim. P. 7(c)

(Advisory Commission Comments).

In Byrd, our supreme court recognized that in child sex-abuse cases,

the victim is often not able to recall the specific date when an offense may have

18
occurred; however, the ruling required the state to disclose what information it may

have concerning when the offense was committed. The supreme court warned that

by "withholding relevant information, the prosecution runs the risk that an otherwise

valid conviction will ultimately be set aside." Byrd, 820 S.W.2d at 742. In Hicks, the

supreme court, quoting with approval 1 C. Wright, Federal Practice and Procedure,

Criminal, § 129 (1982), held that the state must often "disclose the time and place of

the alleged offense, and the names of the persons present when the offense took

place." 666 S.W.2d at 56. The defendant, however, is not entitled to relief unless he

can demonstrate that he was hampered by the lack of specificity.

In our view, the trial court should have ordered the state to respond to

the bill of particulars. On two charges, the month and year were given. On the

remaining three charges, a range of a few months was provided. The testimony of

the victim was much more specific than the information provided in the indictments.

For example, the victim testified that one of the rapes occurred shortly after her

baptism. Also, another incident occurred when the defendant took the victim to his

mother's trailer to use the phone. The indictments were not nearly as specific.

Nonetheless, the defendant has not demonstrated prejudice by the

lack of specificity. The defendant was able to adequately cross-examine all of the

state's witnesses. There is no proof in the record as to how the defense would have

been conducted differently had the bill of particulars been granted. Because the

defendant has not shown how the state's failure to further particularize the charges

impaired his defense, no relief is warranted on this ground. Byrd, 820 S.W.2d at

741.

VI

19
 The defendant next argues the trial court erred by allowing the victim

to testify on redirect examination about prior bad acts occurring outside the time

frame provided in the indictment. During cross-examination, defense counsel asked

the victim if she had discussed her testimony with the prosecutor and challenged her

recollection of the times of the various incidents of sexual contact. On redirect, the

victim was allowed to testify that the abuse was ongoing. The trial court admitted

the evidence so as to permit the victim to explain why she had trouble remembering

the specific dates and why it was necessary to meet with the state's attorney:

Prosecutor: And did you talk to me about those
instances that you've already testified about?

E.M.: Yes.

Prosecutor: [E.M.], were there others as well?

E.M.: Yes.

Prosecutor: Can you remember them by any other way
than that they happened?

E.M.: No.

Prosecutor: So what we talked about was the five that
you could relate to?

E.M.: Yes

***

Prosecutor: [E.M.], can you remember the other times at
all other than they happened, and how many times?

E.M.: No. It happened all the time. I can't remember
how many times.

Rule 404, Tenn. R. Evid., governs the admissibility of prior bad acts.

Subsection (b) provides as follows:

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. It may,
however, be admissible for other purposes. The

20
 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 determine 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.

Generally, this rule is one of exclusion but there are, as stated,

exceptions. See State v. Parton, 694 S.W.2d 299 (Tenn. 1985); Bunch v. State, 605

S.W.2d 227 (Tenn. 1980); Carroll v. State, 370 S.W.2d 523 (Tenn. 1963); see also

State v. Rickman, 876 S.W.2d 824 (Tenn. 1994). Most authorities suggest trial

courts take a "restrictive approach of 404(b) ... because 'other act' evidence carries

a significant potential for unfairly influencing a jury." See Neil P. Cohen, et. al.,

Tennessee Law of Evidence § 404.7 at 170-71 (3d ed. 1995). That best explains

the traditional posture of the courts that any testimony of prior bad acts by a

defendant, when used as substantive evidence of guilt of the crime on trial, is not

usually permissible. Parton, 694 S.W.2d at 302-03. The general exceptions to the

rule are when the evidence is offered to prove the motive of the defendant, his

identity, his intent, the absence of mistake, opportunity, or as a part of a common

scheme or plan. Bunch, 605 S.W.2d at 229.

In Rickman, our supreme court spoke on the dangers of admitting into

evidence prior, sex-related, bad acts in the context of a child victim. This passage,

perhaps, illustrates the reason for the rule:

The general rule excluding evidence of other
crimes [or acts] is based on the recognition that such

21
 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. Such a potential particularity exists when the
conduct or acts are similar to the crimes on trial.

Rickman, 876 S.W.2d at 828, 830 (citations omitted).

By the application of these guidelines, our conclusion is that the

evidence was admissible for the limited purpose of explaining why the victim met

with the district attorney. It would have been preferable for the trial court to have

given a limiting instruction to that effect. Because, however, the brief reference to

other sexual acts was general, omitting any details of the other instances, there was

minimal prejudice, if any at all. In our view, reversible error did not occur.

VI

The defendant also complains that the trial court erred by admitting

"fresh-complaint" statements made by the victim to her mother and other persons.

On redirect examination of the victim, the following exchange occurred:

Prosecutor: How many people have you talked to about
this other than me?

E.M.: I talked to Lois Gregory. I talked to the child clinic.
I talked to a detective in Indiana. I don't know.

Prosecutor: All right. Let me ask you about Mrs.
[Gregory], did you get into, you know, like specific times
with her?

E.M.: No.

Prosecutor: Did you give her any of the, like the details
that you did in front of the jury and with me?

E.M.: No.

Prosecutor: What about the people at Our Kids Clinic?

E.M.: No. I just told them in general.

22
 Prosecutor: Right after you moved out in March of 1993,
the first person you talked to about this would have been
whom?

E.M.: My mother.

Prosecutor: Okay. And again did you tell her specifics
that happened.

E.M.: No.

Prosecutor: And then later on you talked to Mrs.
Gregory?

E.M.: Yes.

Prosecutor: Okay. Had you talked to your two sisters
about what had happened to you?

E.M.: We talked all the time.

Prosecutor: Okay. What I meant was before you talked
to your mother?

E.M.: Yes.

The defendant argues that this evidence does not qualify as "fresh

complaint" and that the manner in which the testimony was elicited made it

"impossible for the jury to discern whether what she told other people related to the

five incidents she described on direct examination or whether it related to other

alleged acts of abuse."

The fresh complaint doctrine allows the state to introduce evidence in

its case-in-chief that the victim complained about the incident shortly after it

occurred. The historic rationale for the doctrine, which "has ancient origins," was

that a "'normal' woman would report a rape soon after its occurrence" and that the

failure to report the rape would tend to suggest that one had not occurred. State v.

Kendricks, 891 S.W.2d 597, 601 (Tenn. 1994). Fresh complaint evidence qualified

as an exception to the general rule that a witness's credibility could not be bolstered

23
before any defense effort to impeach the victim. Id. at 601. Historically, the fact of

the complaint as well as the details were admissible in the case-in-chief. Phillips v.

State, 28 Tenn. (1 Humphrey) 246, 248-49 (1848).

In Kendricks, our supreme court commented that it "would prefer to

abolish the doctrine in its entirety, given its genesis in the profoundly sexist

expectation that female victims ... should respond in a prescribed manner."

Kendricks, 891 S.W.2d at 604. Our high court ruled, however, that because the

presumption that there will be an outcry by the female victim is so entrenched in our

society, a modified form of the "fresh complaint" doctrine is necessary. Id. The

supreme court ruled that the fact of the complaint would remain admissible in the

case-in-chief but the details of the complaint were not admissible until the "victim's

credibility [had] been attacked." Id. at 603. The rule requires that while the

complaint should be "timely," it need not be made immediately after the assault.

"Timeliness" should be determined based upon the entirety of the facts and

circumstances of the case. Id. at 605. Complaints that are the product of an

investigating officer's interview are not per se inadmissible, as long as the

questioning is neither "coercive nor suggestive" and is clearly the "victim's product."

Id.

In State v. Livingston, our supreme court concluded that the "fresh

complaint" doctrine would be inapplicable in child sex abuse cases. 907 S.W.2d

392, 395 (Tenn. 1995). Yet there was no determination of what age separated the

child and the adult victim. In State v. Schaller, 975 S.W.2d 313, 320 (Tenn. Crim.

App. 1997), this court ruled that "the line of demarcation for application of

Livingston," is at twelve years; under that ruling, the complaint of a thirteen-year-old

victim would be admissible. Id.

24
 That decision would appear to permit the complaint made in this

instance; because, however, there is no indication in this record as to when the

complaints were made, no determination can be made as to the age of the victim.

Nor can be determine from the contents of this record whether the complaints were

the "victim's product" or the result of interrogation by law enforcement. Thus, while

the testimony might have been admissible, the state failed to establish the

underlying facts required.

Yet the error was clearly harmless in our view. The testimony was

very general and, in context, constituted a minor portion of the testimony. Moreover,

no details of the complaints made were entered into the record. We conclude the

testimony had no impact on the verdict. That the jury returned verdicts on a lesser

offense than charged in the indictment supports that determination. This issue is

without merit.

VIII

The defendant also argues that prosecutorial misconduct requires

reversal. He complains about the following portions of the state's closing argument:

You keep in mind that his word, the word Mr. Hunt
chooses is theory. It has nothing to do with the facts in
this case. What it is, is what criminal defense lawyers do
all the time, they throw out some facts ... smoke screens
is what they throw out. That's to divert your attention
away from the ugly facts that point directly to [the
defendant]. ...[T]he defendant, ... let's talk about all
these diversions for his sexual perversions. For his
sexual deviations.

Generally speaking, closing argument "must be temperate, must be

predicated on evidence introduced during the trial of the case, and must be pertinent

to the issues being tried." State v. Sutton, 562 S.W.2d 820, 823 (Tenn. 1978). Our

25
supreme court has ruled that argument that "that defense counsel was 'trying to

throw sand in the eyes of the jury' and 'blowing smoke in the face of the jury'" is

improper argument. State v. West, 767 S.W.2d 387, 395 (Tenn. 1989). To merit a

new trial, however, the argument must be so inflammatory or improper as to affect

the verdict. Harrington v. State, 385 S.W.2d 758 (Tenn. 1965). In Judge v. State,

539 S.W.2d 340, 344 (Tenn. Crim. App. 1976), this court articulated the factors to

be considered in making that determination:

(1) the conduct complained of viewed in the context and
the light of the facts and circumstances of the case;

(2) the curative measures undertaken by the court and
the prosecution;

(3) the intent of the prosecutor in making the improper
statements;

(4) the cumulative effect of the improper conduct and
any other errors in the record; and

(5) the relative strength or weakness of the case.

When measured by these standards, it is apparent that any

improprieties in this argument did not warrant a new trial. Although the challenged

portion of the state's argument was improper, the remainder of the argument falls

within permissible guidelines. The defendant made no contemporaneous objection

and the record does not suggest an improper motive on the part of the state.

IX

The defendant’s final complaint is that the trial court erred by

enhancing the sentence on two of the statutory rape convictions and by requiring

another of the sentences to be served consecutively. Although we have reversed

and dismissed each of the four statutory rape convictions, we will nonetheless

address the sentence received by the defendant.

26
 When there is a challenge to the length, range, or manner of service of

a sentence, it is the duty of this court to conduct a de novo review with a

presumption that the determinations made by the trial court are correct. Tenn. Code

Ann. § 40-35-401(d). This presumption is "conditioned upon the affirmative showing

in the record that the trial court considered the sentencing principles and all relevant

facts and circumstances." State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991); see

State v. Jones, 883 S.W.2d 597 (Tenn. 1994). The Sentencing Commission

Comments provide that the burden is on the defendant to show the impropriety of

the sentence.

Our review requires an analysis of (1) the evidence, if any, received at

the trial and sentencing hearing; (2) the presentence report; (3) the principles of

sentencing and the arguments of counsel relative to sentencing alternatives; (4) the

nature and characteristics of the offense; (5) any mitigating or enhancing factors;

(6) any statements made by the defendant in his own behalf; and (7) the

defendant's potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102,

-103, and -210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).

The trial court imposed sentence as follows:

Look at the aggravating factors. There's not a whole lot
of aggravating factors here, doesn't look like. I think he
did use his position and forced the child to do what he
did with her. I think that's one of the aggravating factors.
As far as some of the others, they're a part of the others,
two and three applied that part of the offense itself, so, I
mean, he didn't use a weapon or anything. He's got five
charges he's been convicted of, the most serious being
the rape case, eight to twelve years. The Court
sentences eight years on the bottom, the range there is
where it should be. The range on the next offense
committed was one year, and bottom. The next one
would be one year, he would carry some time on. The
third one would be two years, top range on that one, and
two years top range, on the others.

27
 [R]ape runs eight years, so it's running concurrent
with three of the statutory rapes, going to run one
consecutive, that's a fair sentence, giving him an
effective sentence of ten years.

Although the trial court did not refer to the precise language of the

statute, it is apparent he enhanced the statutory rape sentences based on

aggravating circumstance Tenn. Code Ann. § 40-35-114(15), that the defendant

abused a position of private trust. The record clearly supports application of this

enhancement factor. As the victim's step-father, the defendant abused his

relationship to commit the crime. Two-year sentences on two of the statutory rape

convictions are entirely appropriate.

We now turn to the appropriateness of ordering consecutive

sentences. Prior to the enactment of the Criminal Sentencing Reform Act of 1989,

the limited classifications for the imposition of consecutive sentences were set out in

Gray v. State, 538 S.W.2d 391, 393 (Tenn. 1976). In that case our supreme court

ruled that aggravating circumstances must be present before placement in any one

of the classifications. Later, in State v. Taylor, 739 S.W.2d 227 (Tenn. 1987), the

court established an additional category for those defendants convicted of two or

more statutory offenses involving sexual abuse of minors. There were, however,

additional words of caution: "[C]onsecutive sentences should not routinely be

imposed ... and ... the aggregate maximum of consecutive terms must be

reasonably related to the severity of the offenses involved." Taylor, 739 S.W.2d at

230. The Sentencing Commission Comments adopted the cautionary language.

Tenn. Code Ann. § 40-35-115. The 1989 Act is, in essence, the codification of the

holdings in Gray and Taylor; consecutive sentences may be imposed in the

discretion of the trial court only upon a determination that one or more of the

28
following criteria exist:

(1) The defendant is a professional criminal who has
knowingly devoted himself to criminal acts as a major
source of livelihood;

(2) The defendant is an offender whose record of
criminal activity is extensive;

(3) The defendant is a dangerous mentally abnormal
person so declared by a competent psychiatrist who
concludes as a result of an investigation prior to
sentencing that the defendant's criminal conduct has
been characterized by a pattern of repetitive or
compulsive behavior with heedless indifference to
consequences;

(4) The defendant is a dangerous offender whose
behavior indicates little or no regard for human life, and
no hesitation about committing a crime in which the risk
to human life is high;

(5) The defendant is convicted of two (2) 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;

(6) The defendant is sentenced for an offense
committed while on probation;

(7) The defendant is sentenced for criminal contempt.

Tenn. Code Ann. § 40-35-115(b).

In Gray, our supreme court ruled that before consecutive sentencing

could be imposed upon the dangerous offender, as now defined by subsection

(b)(4) in the statute, other conditions must be present: (a) that the crimes involved

aggravating circumstances; (b) that consecutive sentences are a necessary means

to protect the public from the defendant; and (c) that the term reasonably relates to

the severity of the offenses.

29
 In State v. Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995), our high

court reaffirmed those principles, holding that consecutive sentences cannot be

required of the dangerous offender "unless the terms reasonably relate[ ] to the

severity of the offenses committed and are necessary in order to protect the public

(society) from further criminal acts by those persons who resort to aggravated

criminal conduct." The Wilkerson decision, which modified somewhat the strict

factual guidelines for consecutive sentencing adopted in State v. Woods, 814

S.W.2d 378, 380 (Tenn. Crim. App. 1991), described sentencing as a "human

process that neither can nor should be reduced to a set of fixed and mechanical

rules." Wilkerson, 905 S.W.2d at 938. The record must show that the sentencing

principles and all relevant facts and circumstances were considered before the

presumption of correctness applies.

The trial court did not state the basis for imposing consecutive

sentences. The only proof at the sentencing hearing was the testimony of Bill

Hyden, a probation officer, who confirmed the defendant’s failure to meet child

support obligations. It is possible that consecutive sentences might have been

warranted based on statutory factor number five, that the defendant was convicted

of two or more sexual offenses involving a minor. Yet, there is no proof, as required

by law, 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(5). Based on the content of the record, consecutive sentences would have

been inappropriate.

For the reasons previously stated, the convictions for statutory rape

30
are reversed and dismissed. The conviction and sentence for rape are affirmed.

__________________________________
Gary R. Wade, Presiding Judge

CONCUR:

______________________________
Thomas T. Woodall, Judge

______________________________
James Curwood Witt, Jr., Judge

31