State v. Stogdill

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED
MARCH 1996 SESSION

STATE OF TENNESSEE, )
June 10, 1998
)
Appellee, ) No. 03C01-9507-CC-00188
)
) Claiborne County
v. ) Cecil Crowson, Jr.
) Honorable Lee Asbury, Judge
Appellate C ourt Clerk
)
TERRY FRANKLIN STOGDILL, ) (Rape of a child and incest)
)
Appellant. )

For the Appellant: For the Appellee:

Martha J. Yoakum Charles W. Burson
District Public Defender Attorney General of Tennessee
P.O. Box 386 and
Tazewell, TN 37879-0386 Michael J. Fahey
(AT TRIAL AND ON APPEAL) Assistant Attorney General of Tennessee
450 James Robertson Parkway
Charles Herman Nashville, TN 37243-0493
John Beaty
John McAfee William Paul Phillips
Assistant Public Defenders District Attorney General
P.O. Box 386 P.O. Box 10
Tazewell, TN 37879-0386 Huntsville, TN 37756-0010
(AT TRIAL) and
Shayne Sexton
Assistant District Attorney General
P.O. Box 455
Tazewell, TN 37879-0455

OPINION FILED:____________________

AFFIRMED

Joseph M. Tipton
Judge
 OPINION

The defendant, Terry Franklin Stogdill, appeals as of right from his

convictions by a jury in the Claiborne County Criminal Court for rape of a child, a Class

A felony, and incest, a Class C felony. The defendant was sentenced as a Range I,

standard offender to concurrent sentences of twenty years and five years in the custody

of the Department of Correction. On appeal, the defendant contends that:

(1) the trial court erred by denying his motion for a continuance
to obtain a forensic evaluation;

(2) the trial court erred by denying his motion to suppress the
defendant’s statement;

(3) the trial court erred by denying his motion to require the
state to elect at the close of its proof the particular offense for
which it sought a conviction for each count of the indictment;
and

(4) the trial court erred by misapplying an enhancement factor.

We affirm the judgments of conviction.

Lieutenant Ben Evans of the Claiborne County Sheriff’s Department

testified that he along with Mike Cosby from the Department of Human Services went to

the defendant’s residence on February 4, 1994, at approximately 2:45 p.m. to interview

the defendant. He stated that when he introduced himself and Mr. Cosby to the

defendant and told him that they were investigating allegations that the defendant

sexually abused his seven-year-old stepdaughter, the defendant invited them inside

and told them that he had been expecting them. Lieutenant Evans testified that he

informed the defendant that the victim accused him of penetrating her by putting his

penis in her mouth and by inserting his fingers and penis inside her vagina during the

snowstorm that occurred in January 1994.

Lieutenant Evans stated the defendant then gave a statement. He said

that Dawn Stogdill, the victim’s mother and the defendant’s wife at the time, was also

2
present during the interview. Lieutenant Evans believed that the defendant acted

remorseful and appeared to have a hard time remembering things. He said that the

defendant had tears in his eyes and confessed that he needed help. He testified that

although the defendant told him that he had taken three types of medication, he

believed that the defendant understood everything and answered his questions

appropriately.

The defendant’s statement was introduced into evidence and read to the

jury. The statement reflects that the defendant recalled an incident occurring more than

one year earlier at his home located in the Cape Norris area. Although the defendant

could not recall the exact date or time and he stated that he did not remember what

happened, the defendant told Lieutenant Evans that he remembered masturbating in

front of the victim in the living room while the rest of the family was asleep.

In his statement, the defendant told Lieutenant Evans that the first time

that he physically touched the victim was in January 1993 just before moving to the

residence located next to Hickman’s Junkyard. The statement reflects that the

defendant stated that at approximately noon while the other children were sleeping and

his wife was at work, he rubbed the victim on the outside of her clothing on her legs and

between her legs for approximately ten or fifteen minutes. The defendant told

Lieutenant Evans that afterwards he went inside his bedroom and masturbated. The

defendant described his actions as a “want to touch thing,” and he said that he was not

“really attracted to [the victim].” The defendant conceded that something else may

have happened, but he claimed that he could not remember. He explained that he was

taking a lot of medication, including Anaprox, Talwin and Ativan, and that he might have

a mental block, making it hard to remember.

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 The statement also shows that the defendant recalled an incident

occurring toward the last part of the snowstorm in January 1994 at the residence

located next to Hickman’s Junkyard. The defendant told Lieutenant Evans that the

victim approached him while he was sitting in his bath wrap in a chair in the living room

and asked the defendant, “‘Can we do it?’” The defendant stated that he told the victim

that it was not right. He admitted that he should have told the victim’s mother and

asked her to talk to the victim. The defendant’s statement shows that the defendant

conceded that he had done wrong and needed help.

The defendant also said that he did not remember, as alleged by the

victim, putting his penis inside the victim’s mouth and ejaculating, touching the victim’s

vagina with his penis, and sticking his finger inside the victim’s vagina. However,

without specifying the time or the location of the incidents, he conceded that it was

possible that the actions occurred. The defendant recalled that the victim grabbed his

penis a couple of times, although he could not remember when it took place. The

defendant claimed that the victim never acted scared or acted as if she wanted the

defendant to quit.

Mary Palmer Campbell, a pediatrician, testified that she examined the

victim on February 17, 1994. She said that the victim was very cooperative, although

she testified that the victim was hesitant to tell her what happened. Dr. Campbell stated

that the victim stopped telling her what happened at one point and also told her to talk

to the counselor for the Department of Human Services that had interviewed her. Dr.

Campbell testified that the victim reported being constipated, and she said that

constipation can be associated with abuse, although it could be normal also. She also

stated that her examination revealed a thickening and rolling of a portion of the victim’s,

hymen, scar tissue at the bottom of the opening of the hymen, and an opening in the

hymen. In Dr. Campbell’s opinion, the thickened and rolled hymen was consistent with

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penetration of the vagina, although the opening in the hymen was within the normal

limits. Dr. Campbell testified that the rectal examination showed that the skin had been

torn and had healed deeper. In her summary report, Dr. Campbell stated that in her

opinion, the victim had a history “dramatically consistent with sexual abuse.” Dr.

Campbell also expressed the opinion that the results of the examination were

consistent with penetrating trauma to the vagina and possibly to the rectum.

On cross-examination, Dr. Campbell testified that when the victim stopped

telling her what happened and told her that she could not remember, Dr. Campbell

asked the victim whether something happened and the victim responded yes or no to

her questions. She stated on redirect examination that the injury to the victim’s hymen

would have been painful.

Dawn Johnson, the defendant’s ex-wife, testified that she was married to

the defendant at the time of the offenses. She said that she and the defendant moved

to Tennessee in February 1992. She stated that she and the defendant rented a house

from her parents in Cape Norris for approximately one year beginning in March 1992.

Ms. Johnson testified that about March 1993, they moved next to Hickman’s Junkyard.

She stated that in October 1993 while at their home near Hickman’s Junkyard, she

asked the victim whether the defendant had been “messing with her” and the victim

responded affirmatively. Ms. Johnson said that when she confronted the defendant, he

admitted his guilt, telling her that he had touched the victim’s privates and had rubbed

himself on her. She testified that she had earlier experienced problems with ovarian

cysts. Ms. Johnson testified that she and the victim moved to the home of Ms.

Johnson’s parents, the victim’s grandparents, in October 1993, but she did not tell

anyone what happened.

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 Ms. Johnson stated that she later moved back in with the defendant in

December 1993, but the victim lived with her grandparents until January 17, 1994,

when the victim stayed with her and the defendant because her grandparent’s house

caught on fire. She said that the victim slept on the living room floor. Ms. Johnson

recalled that a snowstorm occurred while the victim was staying with them, causing

them to be unable to leave the house. She said that on February 3, 1994, she learned

that the victim had told Ms. Johnson’s sister that the defendant had abused the victim

and that Ms. Johnson’s mother had called the Department of Human Services. Ms.

Johnson testified that she told the defendant about the victim’s allegations and that the

police were coming to question him the next day.

She said that the defendant acted nervous and scared and that he did not

go to work. She stated that the defendant told her that during the morning before being

interviewed by the police, he spent most of his time in the woods with a gun in his hand.

Ms. Johnson believed that the defendant acted normally on February 4, 1994, when

Lieutenant Evans and Mr. Cosby came to talk to the defendant. She stated that she

also gave a statement to the police. She stated that the following night the defendant

went to Oakwood Medical Center for detoxification. Ms. Johnson testified that after

leaving the center, the defendant told her that he planned on returning for treatment in

the psychiatric ward of the center. She said that the defendant told her that he had to

be suicidal to be admitted, and she claimed that in order to get the defendant admitted,

she lied by stating that the defendant had heard voices and was suicidal.

On cross-examination, Ms. Johnson admitted that she knew in January

1992 that something had happened between the defendant and the victim because the

defendant had been accused of sexual abuse in another state. She said that the victim

told her that the defendant touched her private parts and rubbed his penis between her

legs. Ms. Johnson testified that she believed that the victim was telling the truth. Ms.

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Johnson also conceded that her statement reflects that the victim revealed to her that

the defendant rubbed his penis on the victim’s leg, but she claimed that the officer

incorrectly wrote down her answer. She explained that she failed to correct the

inaccuracy because it was a hectic day. Ms. Johnson stated that she told the officer

that the victim had been acting weird for approximately three to four months before

revealing what had happened. She explained that the victim often asked for a night

light, and she eventually gave her one. Ms. Johnson testified that the victim’s weird

conduct prompted her to ask the victim whether the defendant had done anything to

her. She denied that the victim did not like the defendant, and she said that the victim

was scared of the defendant.

The victim testified that she knew the difference between a good touch

and a bad touch. She explained that a bad touch is when someone touches her private

parts. The victim testified that she remembered living in a house that belonged to her

grandparents in Cape Norris. She said that the defendant, whom she called “Daddy,”

touched her more than once while living in that house. She stated that the defendant

touched her during the daytime in her mother’s bedroom while her mother was at work

and her brothers and sisters were napping. The victim explained that she was in her

bedroom when the defendant, standing in the hallway, whistled at her and told her to

come to him. She said that both she and the defendant were wearing pants and a shirt.

The victim testified that the defendant touched her between her legs where she

urinates, sticking his finger inside her. She said that although it did not last long, it hurt.

The victim testified that the defendant did not say anything to her before

he stuck his finger inside her vagina. She stated that when he finished, the defendant

told her not to tell anyone. She said that she eventually told her mother that the

defendant had been touching her in inappropriate places. The victim testified that she

7
did not tell her mother what the defendant had done until they moved to the residence

next to Hickman’s Junkyard some time in 1993. She said that approximately three or

four days after telling her mother about the defendant’s conduct, her mother took the

victim to live with her grandparents. The victim stated that she also told her aunt about

the defendant’s conduct. On cross-examination, the victim testified that she could not

remember the date that the incident at the Cape Norris residence occurred.

The victim testified that around Christmas in 1993, she stayed with her

mother and the defendant for approximately two and a half weeks at the residence

located next to Hickman’s Junkyard. She stated that she remembered having a big

snowfall while staying there, causing them to be unable to leave the house. She

testified that one morning, the defendant came into the living room where she was

sleeping and turned on the television. She said that the defendant, who was wearing a

black robe, sat in a chair in the living room and told her to come to him. The victim

stated that the rest of her family was asleep. She said that she went to see what the

defendant wanted, believing that he was going to give her something. The victim, who

was wearing a nightgown, said that the defendant then pulled her panties down and

stuck his finger inside her vagina as she was standing beside the chair. She stated that

at one point, she tried to get away from the defendant. The victim testified that it hurt

when the defendant stuck his finger inside her. She said that after the snowstorm, she

moved back to live with her grandparents. The victim stated that she never told her

mother what the defendant did during the snowstorm, but she did tell her aunt.

On cross-examination, the victim acknowledged that she had earlier

testified at the preliminary hearing that the defendant did not stick his private part inside

her and that she did not see the defendant’s private part. She conceded that she

stated at the preliminary hearing that the defendant did not do anything to her on the

day of the snowstorm. The victim admitted that she had told someone that if she could

8
be granted three wishes, she wanted to be with her natural father and that her natural

father not remarry. She also admitted that she did not like the defendant. The victim

testified on redirect examination that she had never liked the defendant. She stated on

recross-examination that she also claimed that two of her uncles had touched her on

earlier occasions.

No witnesses were called to testify for the defense. Based upon the

above proof, the jury convicted the defendant of rape of a child and incest.

I. CONTINUANCE

The defendant contends that the trial court erroneously denied his motion

for a continuance to obtain a forensic evaluation. He argues that a medical report

received on December 1, 1994, eight days before the hearing on the motion for a

continuance and thirteen days before trial, tends to show that the defendant had a

defense based upon his mental condition. Specifically, the defendant asserts that a

statement made by Dr. Kenneth Carpenter in the report raised a question regarding the

defendant’s sanity at the time of the offense:

It is my speculation that the abuse, if it occurred, was
associated with drug behavior and the patient had blackouts at
the time. In just talking with him, it is obvious that he has
blackouts for a lot of events during the times that he was taking
excessive amounts of Talwin.

The defendant argues that it can logically be inferred from Dr. Carpenter’s conclusions

that the defendant did not know what he was doing at the time of the offenses, and he

contends that a continuance was necessary to provide him the opportunity to gather

and present evidence in support of an insanity defense. The state responds that the

trial court did not abuse its discretion by denying a continuance.

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 On December 9, 1994, a pretrial hearing was conducted on a motion for a

continuance filed by the defendant on December 8.1 In support of his motion, the

defendant introduced medical discharge summaries reflecting that the defendant

obtained treatment at Oakwood Medical Center from February 5 to February 9, 1994,

was readmitted on February 10 because of depression and threats to kill himself with a

handgun, and he received treatment through February 21, 1994.

The medical records state that the defendant reported taking daily

quantities of several prescription drugs. They reflect that the defendant was under the

influence and in a “blackout of multiple drugs” at the time of the offenses. They show

that while at the medical center, the defendant received treatment for his alcohol and

opiate dependence. The medical records also show that the defendant had a history of

depression and suicidal tendencies and he heard voices telling him to kill himself, had

difficulty sleeping, and experienced continuous crying spells and feelings of being

watched by someone. The defendant reported that he had no recollection of

committing the offenses or giving a statement to the police. The medical records state

that the fact that the defendant’s “mental status was clouded related to the multiple

drug ingestion such that he was having auditory hallucinosis and some of the voices . . .

were telling him to kill himself.” Regarding the auditory hallucinosis, the records state

that the defendant had heard voices for four years and that it may be secondary to

drugs.

The medical records state that the defendant was initially diagnosed as

having dysthymia, but upon re-evaluation, the diagnosis was changed to major

depression with psychotic features. The defendant was later diagnosed as having

recurrent, major depression with non-psychotic features. The records reflect that the

1
The record on appeal does not contain the defendant’s motion for a continuance. The
transcript of the continuance hearing reflects that the motion alleged that a psychiatric, forensic evaluation
was nece ssa ry bec aus e the defe nda nt su ffere d ser ious me ntal, p hysic al, em otion al and psyc hiatric
problems.

10
treating physician requested that the defendant have a consultation for evaluation for

group therapy and a possible transfer to the psychiatric services for primary psychiatric

treatment, but the defendant was released before a consultation was conducted. On

February 21, the defendant was discharged but was ordered to follow up treatment with

a program at Child and Family Services and, if that failed, to attend Cherokee Mental

Health Center. The record does not reflect whether follow-up treatment was obtained.

At the hearing, the state argued that the motion for a continuance was

untimely and that the medical records did not support a showing that a continuance was

necessary to determine the issues of the defendant’s competency to stand trial or his

sanity at the time of the offense. The state asserted that the defendant had access to

the February 5 through 9 medical records on June 21, 1994, approximately two months

before the defendant was indicted, and those records set forth a similar medical history.

The defendant explained that the delay in filing the motion was a result of not receiving

the February 10 through 21 medical records until December 1. He stated that although

he requested the defendant’s medical records in June, the only medical records

furnished to him at that time were the February 5 through 9 records. The defendant

argued that although the defendant’s competency to stand trial was not of great

concern, a continuance was necessary to evaluate the defendant’s sanity at the time of

the offenses.

The trial court denied the defendant’s motion for a continuance. It noted

that the issue was not one of timeliness because the defendant’s sanity was at issue.

The court ruled that the medical records did not indicate the type of condition that would

require a forensic evaluation. In its decision, the trial court stated that the defendant’s

problem apparently stems from depression and drugs.

11
 Pursuant to T.C.A. § 33-7-301(a), the trial court, in its discretion, may

order the defendant to be evaluated if the defendant is believed to be incompetent to

stand trial or there is a question as to the defendant’s mental capacity at the time of the

commission of the offense. State v. Rhoden, 739 S.W.2d 6, 16 (Tenn. Crim. App.

1987). The trial court’s decision to deny a psychiatric evaluation will not be reversed on

appeal absent a showing that the trial court abused its discretion. State v. Lane, 689

S.W.2d 202, 204 (Tenn. Crim. App. 1984).

The granting of a continuance also rests within the sound discretion of the

trial court. Moorehead v. State, 219 Tenn. 271, 274-75, 409 S.W.2d 357, 358 (1966).

A reversal may only occur if the denial was an abuse of discretion and the defendant

was improperly prejudiced in that a different result might reasonably have been reached

if the continuance had been granted. See State v. Dykes, 803 S.W.2d 250, 257 (Tenn.

Crim. App. 1990). Thus, it is incumbent upon the defendant to show that he was

prejudiced. In Morehead, our supreme court stated that the trial court’s exercise of

discretion will not be disturbed on appeal “unless something is developed in the after

trial to show that the defendant might have been prejudiced in some way by the refusal

to grant a continuance.” 219 Tenn. at 275, 409 S.W.2d at 358-59.

The evidence submitted regarding the defendant’s mental status was not

substantial. Moreover, the medical records, taken as a whole, show that the defendant

experienced blackouts at the time of the offense as a result of his drug usage, not

because of a mental disease or defect. Under these circumstances, we cannot say that

the trial court abused its discretion by denying the motion for a continuance.

Furthermore, the defendant has failed to meet his burden of

demonstrating that he was prejudiced by the denial of a continuance. He has not

demonstrated that had a continuance been granted and an evaluation conducted, the

12
findings of the evaluation would have been that the defendant was mentally

incapacitated at the time of the offenses. The defendant did not introduce any

additional evidence at the motion for new trial to support a showing of prejudice. It is

the burden of the defendant to clearly show that prejudice resulted from the denial of a

continuance, rather than leaving this court to speculate how the defendant was

prejudiced. See State v. Teel, 793 S.W.2d 236, 245 (Tenn. Crim. App. 1990). He has

failed to meet his burden in this case. For these reasons, we hold that the trial court

properly denied a continuance.

II. SUPPRESSION OF STATEMENT

The defendant asserts that the trial court erred by denying his motion to

suppress the statement given to Lieutenant Evans. He argues that the statement was

not given voluntarily because the defendant was under the influence of drugs. The

defendant, citing Dukes v. State, 578 S.W.2d 659 (Tenn. Crim. App. 1978), contends

that the proof shows that the defendant was unable to make a definitive narrative of all

past events or to state his own participation in the crimes. The state responds that the

trial court properly allowed the statement into evidence because the proof did not

demonstrate that the defendant was under the influence of drugs at the time of

statement. We hold that the trial court did not err.

Before trial, the defendant filed a motion to suppress the statement he

gave to police. The defendant alleged that he did not knowingly and voluntarily waive

his rights and give a statement because he was under the influence of prescribed

medications that interfered with his ability to understand his rights or to give a

statement.

A hearing was conducted on the motion to suppress on December 13,

1994. Lieutenant Evans testified that as part of his investigation, he along with Mike

13
Cosby of the Department of Human Services went to the defendant’s residence at

approximately 2:48 p.m. on February 4, 1994, to interview the defendant. Lieutenant

Evans testified that when he arrived, he introduced himself to the defendant, told the

defendant that he was there to investigate allegations that the defendant sexually

abused the victim, and asked to speak to him. He stated that the defendant invited

them inside and told them that he had been expecting them.

Lieutenant Evans testified that he advised the defendant of his Miranda

rights before questioning the defendant and the defendant signed the waiver of rights

form. He explained that because the defendant told him that he could not read well, he

read each line and asked the defendant whether he understood each particular right.

Lieutenant Evans stated that the defendant said that he understood his rights. He said

that he then took the defendant’s statement in the living room in the presence of Dawn

Stogdill and Mr. Cosby. According to Lieutenant Evans, the interview lasted

approximately thirty minutes. He stated that the defendant’s answers were responsive

to his questions. Lieutenant Evans explained that he transcribed the defendant’s

answers to his questions, but he asked the defendant to read the statement when it

was completed and to point out any mistakes to be corrected. Lieutenant Evans

testified that the defendant reviewed the statement, stated that it was accurate, and

signed the statement. He recalled the defendant having tears in his eyes after signing

the statement and stating that he knew that he needed help.

Lieutenant Evans stated that the defendant did not mention any limitations

mentally. He also said that the defendant did not tell him that he was under the

influence of any drugs, although the defendant did mention that he was taking three

different types of medication that the defendant believed might hamper his ability to

remember. Lieutenant Evans testified that he had no doubt that the defendant

understood what he was doing when he waived his rights and gave the statement.

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 On cross-examination, Lieutenant Evans conceded that he could not

recall what medication the defendant told him he had taken. He said that he did not

remember the defendant asking him to repeat anything. He stated that he questioned

the defendant again on March 7, 1994, at Hickman’s Junkyard, where the defendant

worked. Lieutenant Evans testified that the defendant told him that he could barely

remember talking to him on February 4. He stated that the defendant also told him that

he went to Oakwood Medical Center for drug detoxification after giving the statement on

February 4. Lieutenant Evans said that the defendant told him that he could not

remember anything before going for treatment.

Mike Cosby of the Department of Human Services testified that he

accompanied Lieutenant Evans to the defendant’s residence on February 4, 1994, and

was present during the interview. He said that the defendant did not appear to be

under the influence of drugs or alcohol, although the defendant told them that he had

taken some medication. He stated that the defendant answered appropriately to the

questions that were asked. Mr. Cosby testified that he believed that the defendant

understood Lieutenant Evans’ questions and understood what was happening.

The defendant testified that he had been depressed for several years

after injuring his back. He said that at the time of the statement, he had been taking

prescription drugs on a daily basis, including Talwin, Anaprox, Ativan, Elavil, and

Zantac. The defendant stated that he took more medication than prescribed before the

interview because he experienced bad pain in his back. He said that the day after the

interview, he went to Oakwood Medical Center to obtain treatment for his drug abuse.

The defendant testified that he stopped taking the drugs after the treatment. He stated

that he could not fully remember Lieutenant Evans and Mr. Cosby being at his house in

February 1994. The defendant said that he had been under the influence of drugs

every day for a long time, and he stated that it caused him to forget things. The

15
defendant claimed that he would not have given a statement had he known what he

was doing. He stated that when he spoke to Lieutenant Evans in March, he told

Lieutenant Evans that he did not recall giving the statement in February. The

defendant conceded that the signature at the bottom of the statement was “close” to

being his signature, but he asserted that he did not have any recollection of giving the

statement. He blamed his loss of memory on the medication he was taking.

On cross-examination, the defendant conceded that he had worked and

driven a car during the six months before giving the statement, a period of time when he

was also taking the medications. He also admitted that he was not surprised that the

Oakwood Medical Center’s records reflect that the only medication detected in the

defendant’s system was Talwin. The defendant testified that he recalled giving a

second statement to Lieutenant Evans on March 7, 1994, stating that he did not recall

giving the earlier statement. He admitted that he also gave a statement on April 12,

1994, that reflects that he could not remember what happened between him and the

victim.

At the conclusion of the hearing, the trial court overruled the defendant’s

motion to suppress the statement. The trial court determined that the defendant was

capable of knowingly and voluntarily waiving his rights and giving a statement to police.

On appeal, the trial court’s findings of fact at the conclusion of a

suppression hearing will be upheld unless the evidence preponderates otherwise.

State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). The defendant bears the burden of

demonstrating that the evidence preponderated against the trial court’s factual findings.

Id. However, the application of the law to the facts as determined by the trial court is a

question of law which is reviewed de novo on appeal. State v. Yeargan, 958 S.W.2d

626, 629 (Tenn. 1997).

16
 In this case, the defendant has failed to establish that the evidence

preponderated against the trial court’s factual determinations. The evidence shows that

Lieutenant Evans testified that the defendant stated that he understood his rights

before signing the waiver of rights form. He also said that although the defendant had

taken prescription medication, Lieutenant Evans had no doubt that the defendant

understood what he was doing when he waived his rights and gave a statement. Mr.

Cosby believed that the defendant did not appear to be under the influence of drugs or

alcohol and also expressed the opinion that the defendant understood what was

happening. We agree that this evidence demonstrates that the defendant knowingly

and voluntarily waived his rights and gave a statement. Therefore, we conclude that

the defendant’s motion to suppress the statement was appropriately denied.

III. ELECTION OF OFFENSES

The defendant contends that the trial court erred by denying his motion to

require the state to elect at the close of its proof the particular incident for which a

conviction in each count was being sought. He argues that the failure to require

election cannot be considered harmless error because it is impossible to determine

whether the jury returned unanimous verdicts. The state asserts that the failure of the

trial court to require the state to elect is not reversible error. We agree.

In Burlison v. State, 501 S.W.2d 801 (Tenn. 1973), our supreme court

held that the submission of evidence of multiple rapes by the defendant upon the victim

when each of the several rapes so proven would meet the allegations of the charge in

the indictment made it “the duty of the trial judge to require the State, at the close of its

proof-in-chief, to elect the particular offense of carnal knowledge upon which it would

rely for conviction, and to properly instruct the jury so that the verdict of every juror

would be united on the one offense.” Id. at 804; see State v. Rickman, 876 S.W.2d

824, 829 (Tenn. 1994). The court gave three reasons for these requirements:

17
 First, to enable the defendant to prepare for and make his
defense to the specific charge; second, to protect him from
double jeopardy by individualization of the issue; and third, so
that the jury’s verdict may not be a matter of choice between
offenses, some jurors convicting on one offense and others,
another.

Burlison, 501 S.W.2d at 803.

The requirement that the state elect the particular offense upon which it

relies for a conviction is “fundamental, immediately touching the constitutional rights of

the accused.” Id. at 804. As the court stated in Shelton, “the purpose of election is to

insure that each juror is considering the same occurrence. If the prosecution cannot

identify an event for which to ask a conviction, then the court cannot be assured of a

unanimous decision.” 851 S.W.2d at 138.

In this case, the indictment was neither time nor place specific. The

indictment charged the defendant in separate counts with committing the crimes of rape

and incest “on or about 1993 - February 1994.” Moreover, the state’s pretrial response

to the defendant’s motion for a bill of particulars did not limit each charge to a particular

incident. Rather, the state responded that the events constituting the charges in counts

one and two of the indictment occurred “between the dates of January 1993 - February

1993 at the defendant’s then residence, located in the Cape Norris area of Claiborne

County, Tennessee, in a home rented from the parents of Dawn Stogdill.” It also stated

that the events constituting the charges in counts one and two of the indictment took

place “between the dates of February 1993 and January 29, 1994, at the defendant’s

then residence located [in] . . . Claiborne County, Tennessee near Hickman’s junkyard.”

Though the defendant was indicted for only one count of rape of a child

and one count of incest, the state introduced evidence that the defendant digitally

penetrated the victim on two separate occasions, once at the Cape Norris residence

and another time at the residence next to Hickman’s Junkyard. Moreover, during its

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closing argument, the state summarized the evidence that showed the defendant’s guilt

for rape of a child, stating that the victim:

talked about two incidents, where the defendant put his fingers
inside of her. One at Cape Norris, one next to Hickman’s
Junkyard. Both times, very clear about what happened. He
put his fingers inside of me. That is what she said. That is
without question.

Also, in rebuttal, the prosecutor argued that:

[defense counsel] talks about other times and things,
other accusations. She was crystal clear about what
happened on the two times there. Crystal clear. There is no
vague accusation. There is no inconsistency.

The state did not specify during its closing argument which incident it was relying upon

for a conviction for incest. The trial court instructed the jury that it must “give separate

consideration to each count of the indictment and return a separate verdict as to each

count of the indictment.”

The lack of indictment specificity and the evidence of multiple offenses

warranted state election and an appropriate jury instruction under Shelton and Brown.

Thus, the trial court’s failure to require an election constituted error. However, the

failure to elect may be harmless beyond a reasonable doubt in an appropriate case.

See Shelton, 851 S.W.2d at 138.

In Shelton, the defendant was charged with one count of aggravated rape

of one of his three step-granddaughters and two counts of aggravated sexual battery of

the other two step-granddaughters. The victim of the aggravated rape testified in very

general terms that the defendant digitally penetrated her and her two sisters on more

than one occasion, but described in detail one incident that occurred on her birthday

when the defendant was partially successful at his attempt to penetrate the victim with

his penis. Id. The medical expert testimony was that there were clear signs of sexual

abuse. Id. The court determined that it was error for the trial court to fail to require the

state to elect offenses but concluded that the error with regard to the aggravated rape

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count was harmless beyond a reasonable doubt because “the jurors must have

considered the evidence of this particular incident in convicting the defendant of

aggravated rape.” Id.

With regard to the remaining two counts of aggravated sexual battery, the

court held that the error was not harmless beyond a reasonable doubt. Id. at 139.

Important in this determination was the nature of the evidence presented with regard to

each charge. Id. One victim testified that the defendant fondled her and digitally

penetrated her on more than one occasion, but she did not differentiate one event from

the others. Id. With respect to that victim, the medical expert only found evidence of

irritation in the victim’s genital area. Id. The court reversed the defendant’s conviction

because in “view of the nature of the evidence and the error resulting from the state’s

failure to elect,” the convictions could not be sustained. Id. The other victim did not

testify, and medical proof found no evidence of irritation or any other physical proof. Id.

The only proof establishing the offense “was the brief and thoroughly non-specific

testimony of the other two victims . . . .” Id. The court not only determined that there

was a Burlison error but also concluded that the evidence was insufficient to sustain the

conviction. Id.

The state asserts that any error by the state in failing to elect a specific

instance for each count is harmless beyond a reasonable doubt. The state argues that

similar to the victim’s testimony in State v. Shelton, 851 S.W.2d 134 (Tenn. 1993), the

victim’s most specific testimony in this case concerned the defendant’s digital

penetration of the victim’s vagina in the living room of the defendant’s residence near

Hickman’s Junkyard during the snowstorm in January 1994. However, given the

victim’s admission during cross-examination that she had stated during the preliminary

hearing that the defendant did not do anything to her when she lived near the

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Hickman’s Junkyard, we are not confident that all of the jurors would have agreed

beyond a reasonable doubt as to the commission of this offense.

On the other hand, we believe that the record supports a conclusion that

the jury unanimously agreed, at least, to the offense described at the Cape Norris

residence. That is, similar to Shelton, the risk of a composite jury simply did not exist in

this case. The victim provided specific testimony with respect to the offense. The

quality and certainty of her testimony as to this incident was strong. Moreover, the

defendant’s evidence, through his statement, did not have the potential of diminishing

the quality of the proof. His statement expressed, at best for him, a lack of recall

regarding the offenses and, at worst, the possibility that the offenses occurred.

Also, the primary defense was that the victim was fabricating the

episodes. However, given the fact that the jury accredited the victim, there is no basis

in the evidence upon which we can doubt the jury being unanimous as to the

defendant’s guilt of the offense at the Cape Norris residence. Under these

circumstances, the Burlison error was harmless beyond a reasonable doubt.

IV. SENTENCING

The defendant complains that the trial court improperly applied

enhancement factor (7), the offense involved a victim and was committed to gratify the

defendant’s desire for pleasure or excitement. See T.C.A. § 40-35-114(7). He argues

that there is not sufficient evidence in the record to support the application of the factor.

The defendant also contends that he should have received a sentence of less than

twenty years for his rape of a child conviction.

Appellate review of sentencing is de novo on the record with a

presumption that the trial court's determinations are correct. T.C.A. § 40-35-401(d). As

21
the Sentencing Commission Comments to this section notes, the burden is now 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, we 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,

the 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. T.C.A. § 40-35-210(f)
(1990).

State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1994).

Also, in conducting a de novo review, we 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 and (7) the

potential for rehabilitation or treatment. T.C.A. §§ 40-35-102, -103 and -210; see

Ashby, 823 S.W.2d at 168; State v. Moss, 727 S.W.2d 229, 236-37 (Tenn. 1986).

22
 No witnesses testified at the sentencing hearing. A presentence report

was introduced into evidence. The report reflects that the then thirty-six-year-old

defendant had no prior felony convictions, although he had convictions for

misdemeanor assault and driving under the influence of an intoxicant. It shows that the

defendant dropped out of high school in the ninth grade. The report states that the

defendant began using alcohol and marijuana when he was twenty years old, using

them daily in large amounts until he turned thirty-five. The defendant also reported his

addiction to pain pills. The presentence report reflects that the defendant worked as a

machine operator for approximately five months and worked off and on for eleven years

as a mechanic.

At the conclusion of the sentencing hearing, the trial court sentenced the

defendant as a Range I, standard offender to concurrent sentences of twenty years and

five years for his rape of a child and incest convictions, respectively. In sentencing the

defendant, the trial court applied the following enhancement factors pursuant to T.C.A.

§ 40-35-114:

(7) The offense involved a victim and was committed to gratify
the defendant’s desire for pleasure or excitement; and

(15) The defendant abused a position of private trust.

In applying factor (7), the trial court did not detail the facts upon which its application

was based. The trial court determined that no mitigating factors applied.

Under the circumstances of this case, the trial court appropriately

considered factor (7). In the defendant’s statement, he prefaced his account with the

statement that his wife “had been turning [him] away because she had some cysts.”

Although he denied that he was sexually attracted to the victim, the defendant

described his actions at the Cape Norris residence as being “a want to touch thing.”

The defendant told Lieutenant Evans that after rubbing the victim’s legs and between

her legs for approximately fifteen to twenty minutes, the defendant went into his

23
bedroom and masturbated. The fact that the defendant continued to stimulate himself

sexually after committing the crime suggests that the defendant was motivated to

commit the offenses to gratify his desire for pleasure or excitement. We conclude that

the evidence supports the application of factor (7) by a preponderance of the evidence.

Under the circumstances of this case, a sentence of twenty years for the rape of a child

conviction is warranted.

In consideration of the foregoing and the record as a whole, we affirm the

judgments of conviction.

____________________________
Joseph M. Tipton, Judge

CONCUR:

_________________________
Paul G. Summers, Judge

_________________________
Charles Lee, Special Judge

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