State v. Gibson

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON FILED
SEPTEMBER 1996 SESSION
June 25, 1997

STATE OF TENNESSEE, ) Cecil Crowson, Jr.
Appellate C ourt Clerk
) No. 02-C-01-9604-CC-00117
Appellee, )
) Fayette County
v. )
) Jon Kerry Blackwood, Judge
ROY DON GIBSON, )
) (Rape of a Child)
Appellant. )

FOR THE APPELLANT: FOR THE APPELLEE:

J. Thomas Caldwell John Knox Walkup
Attorney at Law Attorney General & Reporter
114 Jefferson Street 500 Charlotte Avenue
Ripley, TN 38063 Nashville, TN 37243-0497

Deborah A. Tullis
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493

Elizabeth T. Rice
District Attorney General
302 Market Street
Somerville, TN 38068

Christopher S. Marshburn
Assistant District Attorney General
302 Market Street
Somerville, TN 38068

James W. Freeland, Jr.
Assistant District Attorney General
302 Market Street
Somerville, TN 38068

OPINION FILED: ____________________________

CONVICTIONS AFFIRMED, REMANDED FOR RESENTENCING

Joe B. Jones, Presiding Judge
 OPINION

The appellant, Roy Don Gibson (defendant), was convicted of four counts of rape

of a child, a Class A felony, by a jury of his peers. The trial court, finding the defendant was

a standard offender, imposed a Range I sentence consisting of confinement for twenty-one

(21) years in the Department of Correction for each offense. He was also fined $25,000 for

one conviction involving penile penetration. The trial court ordered that the sentences are

to be served concurrently. The judge’s sentencing order stated Gibson will serve 30

percent of his term before he is eligible for release classification.

Gibson presents six issues for review. Gibson contends the evidence is insufficient,

as a matter of law, to support the convictions for rape of a child. He also contends the court

erred by (a) failing to require the state to file a bill of particulars; (b) failing to compel a

physical and psychiatric examination of the victim; (c) failing to allow him to review

Department of Human Services records pertaining to the victim; (d) allowing into evidence

and playing for the jury two audio tapes containing incriminating conversations between

the defendant and his ex-wife; and (e) allowing the child-victim to testify while holding a

teddy bear.

The state also raises an issue on appeal. The state contends the court erred when

it ordered that Gibson would be eligible for release after serving 30 percent of his 21-year

sentence. Gibson was convicted of four counts of child rape, a statute which went into

effect July 1, 1992. Prior to the enactment of the new statute, the same offense was

prohibited under the aggravated rape statute. Under the child rape statute a defendant

serves 100 percent of his sentence. From the evidence presented at trial, only one of his

four convictions could have occurred prior to the effective date of the child rape statute.

The record establishes three offenses occurred after the effective date. The state agrees

the defendant was properly sentenced at 30 percent for one count. However, for the

remaining three convictions, Gibson should be required to serve 100 percent of his

sentence.

This Court remands the case for resentencing; otherwise, the judgment is affirmed.

2
 The defendant was a teacher and coach. His work history was sporadic. His tenure

at a school usually lasted only a year or two and he moved on. He also worked non-

teaching jobs in between the school year. The defendant first befriended Brenda Wilbanks

in 1988 while the two were working at a truck stop in West Memphis, Arkansas. The

relationship progressed and eventually Brenda Wilbanks and her two young daughters,

Elizabeth Wilbanks and D.W.1 moved in with the defendant and lived together as a family.

The defendant returned to coaching and teaching in 1989 and took a job at a school in

Tipton County. The defendant and Brenda Wilbanks were married in July 1990. The next

year in August 1991, the defendant took a job teaching and coaching at Rossville Academy

and the group moved to a double-wide trailer in Fayette County. The couple’s relationship

was tumultuous at best. A daughter was born of his union on November 19, 1992. In

October 1993 the two were divorced. They reunited in March 1994 and Brenda Gibson’s

two girls went to live with their biological father. The defendant and Brenda Gibson lived

together with their daughter until June 7, 1994. The investigation into the allegations of

sexual abuse began a short-time thereafter.

SUFFICIENCY OF THE EVIDENCE

Gibson contends the state failed to prove that the child victim was penetrated

vaginally by the defendant (Count 2), she engaged in fellatio with the defendant (Count 3)

and she was digitally penetrated by the defendant (Counts 6 and 7).

A.

When an accused challenges the sufficiency of the convicting evidence, this Court

must review the record to determine if the evidence adduced during the trial was sufficient

“to support the finding by the trier of fact of guilt beyond a reasonable doubt.” Tenn. R.

App. P. 13(e). This rule is applicable to findings of guilt predicated upon direct evidence,

circumstantial evidence, or a combination of direct and circumstantial evidence. State v.

1
It is the policy of this Court not to identify the minor victims of sexual abuse.

3
Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App.), per. app. denied (Tenn. 1990).

In determining the sufficiency of the evidence, this Court does not reweigh or

reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Nor may

this Court substitute its inferences for those drawn by the trier of fact from circumstantial

evidence. Liakas v. State, 199 Tenn. 298, 305 286 S.W.2d 856, 859 (1956). To the

contrary, this Court is required to afford the State of Tennessee the strongest legitimate

view of the evidence contained in the record as well as all reasonable and legitimate

inferences which may be drawn from the evidence. State v. Herrod, 754 S.W.2d 627, 632

(Tenn. Crim. App.), per. app. denied (Tenn. 1988).

Questions concerning the credibility of the witnesses, the weight and value to be

given the evidence as well as all factual issues raised by the evidence are resolved by the

trier of fact, not this Court. State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App.), per.

app. denied (Tenn. 1987). In State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973), the

Supreme Court said, “A guilty verdict by the jury, approved by the trial judge, accredits the

testimony of the witnesses for the State and resolves all conflicts in favor of the theory of

the State.”

Since a verdict of guilt removes the presumption of innocence, Grace, 493 S.W.2d

at 476, the accused has the burden in this Court of illustrating why the evidence is

insufficient to support the verdict returned by the trier of fact. State v. Tuggle, 639 S.W.2d

913, 914 (Tenn. 1982). This Court will not disturb a verdict of guilt due to the sufficiency

of the evidence unless the facts contained in the record and the inferences which may be

drawn from the facts are sufficient, as a matter of law, for a rational trier of fact to find the

accused guilty beyond a reasonable doubt. Matthews, 805 S.W.2d at 780.

B.

The indictment originally charged the defendant with aggravated rape pursuant to

Tenn. Code Ann. § 39-13-502. The original indictment is not included in the record. A

superseding indictment was returned charging child rape pursuant to Tenn. Code Ann. §

39-13-522. The state was permitted to amend the new indictment before the trial

4
commenced. The amendment related to the time the offense occurred.

D.W. provided no date as to when the incident for Count 2 occurred other than it

occurred while the family was living in a double-wide trailer in Fayette County. The record

establishes the offenses occurred after the family moved into the trailer in August 1991.

Therefore, the event could have occurred prior to the July 1, 1992 effective date of the

child rape law.

(1)

The defendant argues “the proof wholly failed to show an offense committed while

the Child Rape Statute was the Law of the Laws.”

Aggravated rape, the initial offense charged, is “unlawful sexual penetration by the

defendant or the defendant by a victim accompanied by any of the following

circumstances:” . . . . (4) The victim is less than thirteen (13) years of age.” Tenn. Code

Ann. § 39-13-502. Aggravated rape is a class A felony. The offense of rape of a child is

“the unlawful sexual penetration of a victim by the defendant or the defendant by a victim,

if such victim is less than (13) years of age.” Tenn. Code Ann. § 39-13-522. Rape of a

child is a class A felony.

Sexual penetration means “sexual intercourse . . . however slight.” Tenn. Code

Ann. § 39-13-501(7).

The only difference between the two crimes is the nature of the sentence imposed.

Under the child rape statute, offenders are required to serve every day of their sentence.

Under aggravated rape, offenders can qualify to serve a percentage of the sentence.

Sexual penetration with a child under the age of thirteen was prohibited by law

during the entire time in question. The defendant’s argument as to this subissue is without

merit.

(2)

Gibson also argues that he cannot be convicted of raping a child because the state

failed to prove penile penetration in Count 2. He argues there was no evidence of injury

5
or penetration; and D.W. did not complain that she was penetrated.

The child-victim testified that while she, her sister, and mother were living in a

double-wide trailer the defendant raped her. D.W. testified the act occurred in “Roy’s

room.” She and the defendant were the only ones home at the time. The girl testified: “He

put his hand on my private and then he put his private on mine, and it went in a little bit,

and white stuff came out and it got on me, and I wiped it off.” During the act the defendant

asked her to say, “F--- m-.” She refused. “Roy told me if I told anybody that they would

be mad at me.”

The defendant met with his ex-wife, Brenda Gibson, on two occasions. She, along

with a Tennessee Bureau of Investigation agent, secretly recorded these conversations.

The tapes were played for the jury. During the conversations, Gibson admitted touching

his penis to the child’s genitals. The first tape recording was made July 10, 1994 at

Pancho’s in West Memphis, Arkansas:

Roy Gibson: I didn’t touch her [that much]. It was just
her hand touching me down there. That’s
about the main thing. That’s all it was.
Very few times did my thing touch her.
Very few times.
Brenda Gibson: What did you just say?
Roy Gibson: You know what I said. My dick did not
touch her down there but maybe ten
times in how many years - three or four
years - that’s all -- just touched her --
that’s all....

****

Roy Gibson: I didn’t touch her more than 10 times with
that down there. The whole time. . . .
Brenda Gibson: With what?
Roy Gibson: Dick, Brenda, dick, dick. (Unintelligible).
She didn’t like that Brenda. Did she tell
you that?
Brenda Gibson: Yes, she told me she didn’t like it.
Roy Gibson: It was very seldom.
Brenda Gibson: She also told me it hurt her.
Roy Gibson: Once or twice. It wouldn’t fit in her, though
I can guarantee you that. There’s no way.
She was little then.

****

Brenda Gibson: What you are telling me is you touched
your penis to her vagina.
Roy Gibson: Just touched it. Just touched it. It never
went in. It couldn’t go in. My finger
couldn’t even go in.

6
 Brenda Gibson: But you attempted, you tried.
Roy Gibson: I did not try. It would hurt her Brenda. I
have a lot more sense than that. It would
hurt her. My God it would hurt you. No, I
did not do that. No, I did not try to do that.
I just touched, is that enough? It was
mostly jacking off, that’s all .
(Unintelligible).

He also confirmed he told the victim if she told anyone what was occurring, “we’d all get

in trouble.” He also confirmed he asked her to say “F--- m-” when he was committing the

act.

In a second conversation recorded July 18, 1994 at Mazzio’s Pizza in Memphis, the

defendant again admitted to the act:

Roy Gibson: I never went inside her, with my finger or
anything, and I’ll take a test to that.
Brenda Gibson: Roy, that’s not what you told me last time.
Roy Gibson: No it’s not. I never did. I can’t, I’m too
fuckin’ big, how could I do that?
Brenda Gibson: You attempted to Roy.
Roy Gibson: I touched her, you know that thing’s kinda
big, it probably felt bad to her. I’m sorry, if
she said it hurt, I did not get near her.
Brenda Gibson: Roy, how can you say you didn’t get near
her when you just said . . .
Roy Gibson: After she said it hurt, Brenda, I got away
from her. Any time.

****

Roy Gibson: I did not try to rape her, how could
anybody say that? That’s a damn lie. I
touched her with it, and that’s all I did.
She was too little, she’s a baby, I can’t do
it, there’s no way I could do it. You ought
to know that. Any time she said anything
hurt I stopped. Any time.

Dr. Alan Battle, a clinical psychologist who briefly treated the defendant, said the

defendant reported about 20 instances of sexual contact with the victim over a three to four

year period. The defendant told the doctor no penile penetration had occurred.

Jo Jones, a nurse evaluator from Memphis Sexual Assault Center, testified that

although the results of the victim’s exam were normal and her hymen was intact, a penis

could have been inserted between the victim’s labia and not break the hymen. Sexual

penetration is sexual intercourse “however slight.” The victim who was born June 9, 1983,

would have been less than 13 years of age when the act occurred.

7
 Thus, the issue is without merit.

C.

The defendant next contends the evidence was insufficient to support the conviction

for rape of child involving fellatio. The amended indictment charges child rape by oral

penetration of the victim’s mouth by penis between June 1, 1991 and June 1994 (Count

3).

The child-victim testified that while the family was living in the trailer “he made me

put [his sexual organ] in my mouth.” She stated that Jamie, her half-sister (daughter of

Brenda Gibson and the defendant), had been born when this occurred. Jamie Gibson was

born in November 1992. The child rape statute would have been in effect.

Dr. Battle testified that the defendant said the 11-year-old would “masturbate his

penis until he achieved orgasm, and one or two times, perhaps, she had sucked the penis,

but she didn’t like it.”

In the first recorded conversation between the defendant and his ex-wife, the

defendant admitted to committing fellatio:

Roy Gibson: She did it with her mouth a few times, not
very many, because she didn’t like to do
that. I never forced her to do it. I never
forced her to do anything.

****

Roy Gibson: She used her mouth sometimes.
(Unintelligible) Did she tell you that?
Brenda Gibson: She told me she didn’t like any of it.
Roy Gibson: Well that’s not -- well you can believe
that, and I want to believe it too, but she
didn’t act like that sometimes. I think she
did like some of it at first (unintelligible).

During the conversation on July 18, 1994:

Brenda Gibson: She tells me you made her have oral sex
with you.
Roy Gibson: I didn’t have to make her, Brenda. I know
you didn’t want to understand it, but I
didn’t have to make her do it. I know you
don’t want to understand this part, but
some things she actually enjoyed
because she’s young and didn’t know

8
 what she was doing. But you don’t want
to understand that, Brenda, I didn’t have
to make her do anything.
Roy Gibson: If I asked her to do that and she didn’t
want to do it, she didn’t do it. She was
never forced to do it.
Brenda Gibson: To do what?
Roy Gibson: Oral sex, Brenda, oral sex! (Shouting)
How many times do you gotta hear the
fuckin’ shit. . . . . If she did it, it was
because she wanted to. It wasn’t every
time, it wasn’t all the time.
Brenda Gibson: Well how many times was it in the truck,
can you tell me that?
Roy Gibson: No, I can’t tell you that. I didn’t take a
fuckin’ log book in the truck and write it
down.
Brenda Gibson: I am sure you didn’t Roy, but my Lord.
Roy Gibson: It wasn’t very many, the whole thing
wasn’t that many. I don’t think it was 20
times the whole time, the whole year that
you’re talking about. Hell, like you say,
one time’s enough. I’m guilty.

This issue is without merit.

D.

The defendant next contends the evidence was insufficient to support the conviction

of rape of a child by digital penetration. This act was to have occurred between June 1991

and June 1994 (Count 6). In a letter to the defendant’s attorney, the state claimed this act

occurred June 9 or 10, 1994 at a house in Moscow, Fayette County. 2

The child-victim identified a photograph of a house in which her family lived in

Moscow which is located in Fayette County. Her older sister told jurors the family had lived

in the house for a short time in the Summer of 1994. The child-victim knew her sister

Jamie, born in November 1992, lived there as well. The child-victim also said the act

occurred around the time of her June 9th birthday.

While at this house, she said the defendant came into her room. He put his hands

in her pants. “He started moving around, and he said something, but I don’t recall what he

said.” She said he touched her “private” with his hand. She said he touched both the

2
The trial court required the state to provide more information to the defendant about
the specifics of the acts alleged. The state apparently wrote a letter to the defendant’s
attorney. The letter is not included in the record, but references are made to it in the
record.

9
inside and outside part of her “privates.”

During the July 10, 1994 recorded conversation the defendant told his ex-wife that

the contact with her daughter was usually just touching. From comments made about his

finger, a jury could find that he attempted to penetrate using his finger.

Roy Gibson: I didn’t touch her [that much]. It was just her
hand touching me down there. That’s about the
main thing. That’s all it was.

****

My finger couldn’t even go in.

Dr. Battle’s testimony indicated the defendant admitted to 20 instances of sexual contact

with the child.

In his brief, the defendant argues that he testified at trial D.W. was not at his house

in June 1994. This is totally unsupported by the evidence. His own testimony indicates the

girls were at his house in June although they may not have spent the night.

The defendant testified he reunited with Brenda Gibson in March 1994, after their

divorce. They lived together until June 7, 1994. He said the two girls lived at his house for

three days in March until they moved to Mississippi with their natural father. He testified

he saw the girls in June 1994. “I went down there [to Mississippi] with her [Brenda Gibson]

to get them on June, the 1st.” “They came back to our house, but they went over to their

aunt’s and stayed over there.” “I don’t think they stayed one night. I don’t remember them

staying one night.” He said D.W. went to her aunt’s house in Memphis for a birthday party

on June 11. During that whole time he said, “I never saw them again when they went over

at their aunt’s, except when they came back on the night of the 7th.”

The child victim testified the act of digital penetration occurred near her birthday on

June 9. The child victim clearly identified this act as one occurring at the defendant’s

house. The evidence offered by the defendant shows he was in contact with the child-

victim around the time of her birthday in June 1994. The act could have occurred without

the child-victim spending the night.

The defendant also argues the testimony from nurse evaluator Jones indicated

there was no penetration because Jones’s evaluation showed an intact hymen and no sign

of penetration; the exam of D.W. was “normal.” The defendant fails to note that Jones also

10
said the finding of “normal” did not mean the touching did not occur because the

defendant could have used a finger and just penetrated between the child’s labia. Jones

testified the last instance of sexual assault was reported as June 10, 1994. She said she

would not expect to find evidence of bruising after twenty days had passed. The defendant

argues that the trial court held this testimony was insufficient. The record does not support

the defendant’s assertions.

The defendant further argues this case is analogous to State v. Shelton, 851

S.W.2d 134 (Tenn. 1993), in which the supreme court reversed a sexual battery conviction

when the proof was non-specific and the medical evidence was lacking. Shelton is

distinguished from this case. The victim in Shelton did not testify3 as this child-victim did.

In Shelton, the only incriminating evidence indicating abuse of the child-victim came from

two other child-victims who gave non-specific testimony. This is clearly distinguishable

from the present case which includes specific testimony from the child-victim and

admissions by the defendant.

“Sexual penetration” means sexual intercourse, cunnilingus, fellatio, anal

intercourse, or any other intrusion, however slight, of any part of a person’s body or of any

object into the genital or anal openings of the victim’s, the defendant’s, or any other

person’s body, but emission of semen is not required;” Tenn. Code Ann. § 39-13-501(7).

A rational trier of fact could have found that digital penetration occurred.

This issue is without merit.

E.

The defendant next contends the evidence was insufficient to support the conviction

of rape of a child by digital penetration. This act was to have occurred between June 1990

and June 1994 (Count 7).

The child victim testified this incident occurred at the trailer. Jamie had been born

at that time indicating this act occurred after November 1992. She said everyone was

present at the trailer when this occurred. She and her sister were in the room they shared.

She told jurors she was sleeping on the floor; her sister was in her bed asleep. The

3
The defendant is most likely referring to victim “C” in Shelton.

11
defendant entered the room and “put his finger in my private.”

The defendant argues the child was under the influence of her mother whom the

defendant claims was attempting to extort money from the defendant. The defendant also

argues the child was an accomplice and a conviction cannot be upheld on the victim’s

unsupported testimony.

There is nothing in the record to support the defendant’s claims the child was an

accomplice except for his own feeble suggestion that she enjoyed performing some of the

acts. This issue was not raised during the trial and was not raised in the motion for new

trial, therefore, it is waived.

The defendant by his own admission acknowledges touching the girl.

The issue is without merit.

BILL OF PARTICULARS

The defendant contends the trial court committed error of prejudicial dimension by

failing to require the state to provide the defendant with a bill of particulars. The defendant

argues he was prejudiced by the lack of specifics in the indictment. He further argues he

was denied access to witnesses in the case who could have provided more information.

Finally, he argues he was charged with an offense which took place prior to the enactment

of the law he was alleged to have violated.

(1)

The defendant asserts that having a bill of particulars would be the only way he

could have properly investigated the charges against him. The original indictment charged

the defendant with seven counts of aggravated rape occurring between June 1990 and

June 1994. An amended indictment charged the defendant with seven counts of child rape

occurring between June 1991 and June 1994. The child rape statute went into effect July

1, 1992. Thus, the defendant argues he was alleged to have committed an act before it

was made illegal pursuant to the child rape statute.

12
 Tennessee Code Annotated § 39-13-502 prohibiting aggravated rape and Tenn.

Code Ann. § 39-13-522 prohibiting child rape proscribe the same behavior -- the rape of

a victim under the age of 13. Both are Class A felonies. The only difference between the

two statutes is the sentences imposed following a conviction. In prosecutions pursuant to

the aggravated rape statute, the defendant becomes eligible for release on the release

eligibility date. In prosecutions pursuant to the child rape statute, the defendant must serve

100 percent of his sentence.

The defendant was not prejudiced by the fact that the time period indicated in the

indictment covered a period before the enactment of the child rape law. The action was

still prohibited under the aggravated rape statute which was the original indicted charge.

The defendant had adequate notice of the allegation. The state agrees one of the

convictions occurred before the effective date of the child rape statute.

(2)

The defendant argues he was not allowed to speak with the child victim or Brenda

Gibson, the child’s mother; nor was he given statements made by these two witnesses.

The defendant filed a motion seeking any statements made by the victim on April

12, 1995 but he did not file a motion seeking access to or interviews with the victim, her

sister, or their mother. The record is devoid of any evidence that demonstrates the

defendant was denied access to the witnesses. He has not demonstrated how he was

prejudiced by lack of access.

Furthermore, the legal custodian for a minor child-victim has an absolute right to

refuse a defense attorney’s request for an interview. State v. Michael Scott Barone,

Davidson County No. 01C01-9008-CR-00196 (Tenn. Crim. App. Nashville, October 2,

1991), rev’d in part on other grounds, 852 S.W.2d 216 (Tenn. 1993); State v. James Dison,

Sevier County No. 03-C01-9602-CC-00051 (Tenn. Crim. App., Knoxville, January 31,

1997).

This subissue is without merit.

13
 (3)

The defendant filed a motion for bill of particulars on April 12, 1995. The defendant

contends the court erred by not requiring the state to file a bill of particulars. The trial court

considered the motion on April 26, 1995.

The trial judge decided to reserve ruling on the issue. Instead, he decided to wait

and see what material the state provided the defendant in discovery and if he was provided

enough information to prepare a defense. The court said in ruling:

In this discovery that Mr. Caldwell is going to be allowed, if it
delineates enough of the particular acts in the charge for him
to prepare a defense, then the Court will deny the bill of
particulars; but if it doesn’t do that, then the Court thinks that
a bill of particulars, specifying as best what the State intends
to prove on each of these particular elements, should be
required.

Defense counsel filed a motion to dismiss the prosecution on May 30, 1995 after the

state failed to disclose particulars of the charges as ordered by the trial court. The state

apparently sent defense counsel a letter dated June 2, 1995.4 The state provided more

specifics regarding the offenses and stated some of the offenses took place at the

defendant’s trailer in Fayette County. The defendant argues the letter limited the offenses

to June 1991. However, the quoted portion of the letter in the defendant’s motion to strike

merely indicates the defendant took a teaching job in June 1991 and moved to a trailer at

that time. The quoted material does not indicate the offense occurred in June 1991. The

indictment provided the time period for the offense was June 1990 and June 1994.

The letter also stated that in March 1994 Brenda Gibson moved in with the

defendant in a house in Moscow. The letter stated the defendant fondled the child-victim’s

vagina with his hands at this house. This occurred, according to the state, at the time of

the child’s eleventh birthday.

In the defendant’s motion to strike, he argued that except for two specific charges

all others should be stricken. It should be noted, the defendant failed to make the letter

a part of record. He merely relies on his own recitation of certain parts of the state’s letter

4
This letter is not included in the record. The defendant agrees he received this
letter.

14
for his argument.

During the hearing on the motion for a bill of particulars, the defendant had received

two audio tapes containing the defendant’s admissions to penile-vaginal penetration,

fellatio, and digital penetration of the victim. The defendant also had a two-page report

prepared by Dr. Alan Battle, a clinical psychologist, who would testify about the defendant’s

statements. The report indicated that the defendant had admitted to sexual contact with

the child-victim. The defendant also had the indictment which detailed seven allegations

of sexual penetration between June 1990 and June 1994.

The well-established law in Tennessee does not require an exact date or year of an

offense unless the date “is a material ingredient in the offense.” State v. Byrd, 820 S.W.2d

739, 740 (Tenn. 1991). The state only needs to allege the offense was committed prior

to filing of the indictment. Byrd, 820 S.W.2d at 740.

The Constitutions of Tennessee and the United States provide that criminal

defendants have a right to know the nature of the crime charged. An indictment must

provide notice of the offense to the defendant, provide the court with adequate ground

upon which to enter a proper judgment, and provide protection against double jeopardy.

Byrd, 820 S.W.2d at 741.

The purpose of the bill of particulars is to provide the accused with sufficient

information about the offense alleged in the indictment to permit the accused (a) to prepare

a defense to the offense, (b) to avoid prejudicial surprise at trial, and (c) to enable the

accused to preserve a plea of double jeopardy. Byrd, 820 S.W.2d at 741; State v.

Campbell, 904 S.W.2d 608, 611 (Tenn. Crim. App. 1995); State v. Perkinson, 867 S.W.2d

1, 5 (Tenn. Crim. App. 1992), per. app. denied (Tenn. 1993). In State v. Byrd, the supreme

court recognized that in most child sex abuse cases the state is unable to offer the specific

date when an alleged offense occurred. Byrd, 820 S.W.2d at 741. Nevertheless, a trial

court should require the state to furnish what information it may have in its possession

concerning the time when the alleged offense was committed. Byrd, 820 S.W.2d at 741;

see Campbell, 904 S.W.2d at 611-12. Descriptive information can narrow the time frame

of the offense alleged in the indictment. Byrd, 820 S.W.2d at 742. W hen the state lacks

information to narrow the time frame with descriptive references, an accused’s conviction

15
may be affirmed if it appears the defense of the accused was not hampered by the lack of

specificity of the indictment. Byrd, 820 S.W.2d at 742; State v. Anderson, 748 S.W.2d 201,

204 (Tenn. Crim. App.), per. app. denied (Tenn. 1985).

The record reflects the state gave the defendant the information it had. The taped

conversations between the defendant and his ex-wife provided the specifics of many of the

acts. In fact, the statements indicated there were more crimes committed than those

indicted. The psychologist’s report also indicated the defendant acknowledged sexual

contact with the child-victim. The only thing the defendant did not have were statements

made by the child-victim and her sister. Her sister’s testimony helped to provide the time-

frame when the family lived in the trailer and then in the Moscow house. This was

information the defendant obviously knew. This information was provided to the defendant

in the state’s letter.

The original indictment limited the offenses to a period between June 1990 and

June 1994; the amended indictment limited the offenses to a period between June 1991

and June 1994. This protected the defendant’s double jeopardy rights. Given the

information furnished, the defendant was provided with notice of the charges; the court was

provided with adequate grounds upon which to enter a judgment; and the defendant was

protected from being placed in double jeopardy. The state would “obviously be estopped

from initiating subsequent prosecutions for any similar offenses against the same victims

occurring within the same time period.” Byrd, 820 S.W.2d at 741.

Furthermore, the defendant was neither prejudiced nor surprised at trial. His

defense was not hampered by the lack of specificity in the indictment.

The defendant took the stand and denied all of the offenses. He attempted to

discredit Brenda Gibson by testifying that she had been unfaithful to him; he also claimed

to be under her control. He said he was so in love with her, that he would have done

anything to keep her. She did not testify, so his testimony went unchallenged.

The defendant claimed Brenda Gibson threatened him a month before she secretly

recorded her conversation with him. He testified Gibson told him that if he would admit to

sexually molesting one of the girls, she and Jamie, their daughter, would move back in with

him. Otherwise, he would not see his daughter again. According to the defendant, she

16
also told him he had to attend counseling with her. He also testified she told him that if he

provided her with his Bronco, $5,000 cash, a washer/dryer, some furniture, and $400 a

month child support she would not claim that he sexually abused her daughter. He also

said his ex-wife aroused him sexually and then stopped. She said until he did what she

wanted she would go no further.

Regarding the conversations on the tapes and his admissions, the defendant

testified he was too drunk and he did not remember making any of those statements. As

for his conversation with Dr. Battle and those admissions, he said he was “too upset” at the

meeting and did not remember making those statements. While he did not remember

making the statements, he testified he made them because of her threats. Gibson said he

would do anything his ex-wife had asked because he wanted her back.

The defendant was able to tell jurors his full story and was not hampered by a lack

of a bill of particulars.

This issue is without merit.

ADMITTANCE OF AUDIO TAPES

The defendant contends the trial court committed error of prejudicial dimension by

admitting into evidence two audio tapes containing conversations with his ex-wife.

One tape was recorded on July 10, 1994 at Poncho’s Mexican Restaurant in West

Memphis, Arkansas. A second tape was recorded July 18, 1994 at Mazzio’s Pizza in

Memphis. The conversations lasted several hours. Brenda Gibson wore a concealed

microphone. Tennessee Bureau of Investigation agents recorded the conversations on

audio tape. During the conversation, Brenda Gibson engaged the defendant in

conversation about the sexual assaults on her daughter. She asked the defendant for

more specific information as to what occurred and when.

The defendant admitted to sexually abusing the young girl. His language was often

raw and lewd. He said the victim masturbated him and a “few times” performed oral sex

on him. He also admitted to penile penetration of the victim saying “very few times did my

[penis] touch her.” He estimated it was not more than ten times. He admitted telling the

17
victim if she told anyone about what had been occurring “we’d all get in trouble.”

During the July 18 conversation Gibson said, “It wasn’t very many. The whole thing

wasn’t that many. I don’t think it was 20 times the whole time, the whole year you are

talking about. Hell, like you say one time’s enough I’m guilty.”

The defendant attempted to suppress the tapes. He argued he was tricked and

entrapped into making the incriminating statements, and his statements were not voluntary.

He claimed the statements were taken in violation of his constitutional rights against self-

incrimination, right to counsel, and due process. The defendant objected to the

admissibility of the tapes based upon the authentication of the tapes by Tennessee Bureau

Investigation Agent Terrell McLean. He argued what Agent McLean heard was hearsay.

On appeal he argues playing the tape containing Brenda Gibson’s accusations in the

presence of the jury violated his rights to confront the witnesses against him. Brenda

Gibson was not called by the state to testify during the trial. Objection is also made to

Brenda Gibson’s statements regarding what her daughter told her. The defendant also

argues Brenda Gibson’s statements are hearsay and her statements as to what her

daughter said constitute double hearsay.

When the recordings were made the defendant had not been arrested. He was

merely a suspect in the sexual abuse of his wife’s daughter. Therefore, his rights against

self-incrimination, to counsel, and due process were not violated.

This case is analogous to State v. Jones, 598 S.W.2d 209, 222-23 (Tenn. 1980),

in which transcripts of taped conversations between a defendant and a non-testifying

witness were presented to a jury by the agents who monitored them.5 Like Gibson, Jones

raised the confrontation issue. The Tennessee Supreme Court in Jones said that it was

neither a confrontation nor hearsay problem.

Brenda Gibson’s statements on the tapes were not hearsay because her statements

were not offered for the truth of the matter asserted. Tenn. R. Evid. 801(c); see Jones, 598

S.W.2d at 223. Her statements were not offered or intended to be substantive evidence.

The purpose of her comments was to elicit statements from the defendant. As in Jones,

5
The supreme court was critical of this approach: “The disturbing factor in this
lawsuit is that the State precipitated this problem by declining to call an available witness
and then attempting to piggy-back her testimony into the record through two listeners.”
Jones, 598 S.W.2d at 223.

18
the state did not ask the jury to believe what she said on the tapes. The state’s primary

objective was to bring before the jury the statements made by the defendant. See Jones,

598 S.W.2d at 223.

The issue of confrontation does not apply to the statements made by Brenda

Gibson. Likewise, what the court said in Jones is applicable here. “The issue of

confrontation does not arise as to her. The mere fact that cross-examining her would have

been a defense lawyer’s delight, and that this opportunity did not present itself, does not

operate to add a constitutional dimension to the situation.” Jones, 598 S.W.2d at 223.

Even though she did not testify, the defendant attacked her credibility when he testified.

Moreover, her conversation added nothing to the case in light of the defendant’s own

admissions on the audio tapes, those made to his psychologist and in light of the victim’s

testimony.

The Jones court held tape recordings may be presented by any witness who was

present during the recording or any witness who monitored the recording as long as he can

identify the declarant with certainty and his testimony comports with the other rules of

evidence. 598 S.W.2d at 223. The court continued, “In all such cases the jury should be

instructed that only the statements, admissions and declarations of the declarant may be

considered in the question of guilt or innocence. Further any statement made by a

nontestifying party to the conversation which tends to be prejudicial to the defendant must

be redacted, unless admissible under some other rule of law.” Jones, 598 S.W.2d at 223.

In Jones the court found that full opportunity was given to cross-examine the agent who

presented the transcripts to the jury. Jones, 598 S.W.2d at 224.

While it is true Brenda Gibson was a nontestifying party and the record indicates no

instruction was given in this case when the tapes were played for the jury, 6 her statements

were not prejudicial compared with those made by the defendant.7

If the defendant desired a limiting instruction regarding the statements made by

6
The record indicates that no instruction was given when the tapes were played for
the jury. The instructions given at the conclusion of the proof were not included in the
record.
7
The Jones court concluded that the confrontation issue did not arise because the
full opportunity was given and used to cross-examine the witnesses who testified to the
statements made by the defendant.

19
Brenda Gibson contained on the tapes, he should have moved the trial court to give such

an instruction. Tennessee Rules of Evidence 105 places the burden of triggering a request

for a limiting instruction upon the party who seeks or is entitled to the instruction.

Tennessee Rules of Evidence 105 states: “[T]he court upon request shall restrict the

evidence to its proper scope and instruct the jury accordingly.” The failure to request a

limiting instruction results in the waiver of the issue. Tenn. R. App. P. 36(a).

ACCESS TO DHS RECORDS

The defendant next contends the trial court erred by denying him access to the

child’s records from the Department of Human Services. He argues the records may have

contained exculpatory information and evidence, namely the child made contradictory

statements and past claims of sexual abuse.

The record indicates the trial court planned to review the records in camera to

determine whether there was exculpatory information contained in the report and whether

there was support for the court to order a psychological and physical examination of the

child. The record includes no further mention of what the court found as to the contents

of the records.

It is the duty of the defendant to prepare a record which conveys a fair, accurate and

complete account of what transpired in the trial court with respect to the issues which form

the basis of his appeal. Tenn. R. App. p. 24(b); State v. Bunch, 646 S.W.2.d 158, 160

(Tenn. 1983); State v. Hopper, 695 S.W.2d 530, 537 (Tenn. Crim. App.), per. app. denied

(Tenn. 1985); State v. Wallace, 664 S.W.2d 301, 302 (Tenn. Crim. App.), per. app. denied

(Tenn. 1983). When the record is incomplete, or does not contain the proceedings

relevant to an issue, this Court is precluded from considering this issue. Hopper, 695

S.W.2d at 537; State v. Morton, 639 S.W.2d 666, 668 (Tenn. Crim. App.), per. app. denied

(Tenn. 1982); State v. Hoosier, 631 S.W.2d 474, 476 (Tenn. Crim. App. 1982).

Furthermore, this Court must conclusively presume that the ruling of the trial court was

correct in all particulars. State v. Taylor, 669 S.W.2d 694, 699 (Tenn. Crim. App. 1983),

per. app. denied (Tenn. 1984); State v. Baron, 659 S.W.2d 811, 815 (Tenn. Crim. App.),

20
per. app. denied (Tenn. 1983); State v. Jones, 623 S.W.2d 129, 131 (Tenn. Crim. App.),

per. app. denied (Tenn. 1981).

Additionally, Tenn. Code Ann. § 37-1-612 makes all reports of child sexual abuse

confidential. Through enumerated exceptions, the statute provides access to the following

(a) law enforcement officers investigating child sexual abuse, (b) the district attorney

general, (c) grand jurors through power of a subpoena, (d) those engaged in genuine

research and audits, (e) probation officers or the like charged with presenting information

in judicial or administrative proceedings, and (f) those treating the child.

Those accused of child sexual abuse are not among the exceptions to Tenn. Code

Ann. § 37-1-612. Furthermore, Tenn. R. Crim. P. 16(a)(2) prohibits discovery and

inspection of reports and other internal documents made by state agents in connection with

the investigation and prosecution of the case. Tenn. R. Crim. P. 16(a)(2). See also State

v. Clabo, 905 S.W.2d 197, 201 (Tenn. Crim. App.), per. app. denied (Tenn. 1995). As in

Clabo, Gibson wanted access to the DHS records to establish inconsistencies in the

victim’s statements and to gain access to information to impeach the victim.

The defendant is not entitled to the records. The issue is without merit.

REQUEST FOR EXAMINATION

The defendant also contends the trial court committed error of prejudicial dimension

because the court refused to require the victim to submit to a psychological evaluation and

physical examination. This Court is of the opinion the trial court did not abuse its discretion

in denying the defendant’s motion.

A trial court should not require a sex abuse victim to undergo a psychological

examination unless the “most compelling of reasons” are established by the accused.

Forbes v. State, 559 S.W.2d 318, 321 (Tenn. 1977); State v. Ballard, 714 S.W.2d 284, 287

(Tenn. Crim. App.), per. app. denied (Tenn. 1986). The phrase “compelling reasons”

includes situations “where substantial doubt is cast upon the victim’s sanity, or where there

is a record of prior mental disorders or sexual fantasies, or where the story is incredible,

and even in these situations, only if there is little or no corroboration to support the charge.”

21
Consequently, a trial court should exercise its discretion sparingly when ruling upon a

motion to require a victim to undergo a psychological examination in a sexual abuse

prosecution. Forbes, 559 S.W.2d at 321. In this case, the trial court correctly found that

there was no “compelling reason” to require the child victim to undergo a psychological

evaluation.

The defendant also filed a motion requiring the child to be examined by a qualified

medical doctor. The examination would show, the defendant argues, the child had not

sustained any penetration; this evidence would be exculpatory and exonerate the

defendant. The analysis for determining whether to compel a physical examination is the

same analysis discussed in Forbes for determining whether a psychological examination

should be compelled. State v. Barone, 852 S.W.2d 216, 221 (Tenn. 1993). The defendant

must show a compelling need for the examination. Barone, 852 S.W.2d at 222. Concerns

of traumatizing and embarrassing the victim should be balanced against the likelihood that

the exam will provide substantial material evidence for the defendant. In this case an

examination was performed at the Memphis Sexual Abuse Center and the results were

made available to the defendant. In fact, the defendant called Jo Jones the nurse

evaluator to testify. She said her exam revealed no evidence of sexual abuse although she

qualified her answer saying that the lack of evidence did not mean that the sexual abuse

did not occur. The defendant could have placed his penis or finger in her genital area

without disturbing the hymen. She also said she would not expect to find evidence of

bruising or touching in that area twenty days after the last reported incident. The

defendant failed to establish a compelling reason to order another examination.

Thus, this issue is without merit.

VICTIM’S TEDDY BEAR

The defendant also complains the trial court allowed the child to testify while holding

a teddy bear. The defendant contends the bear was a prop and it prejudiced the defendant

by making the girl look pitiful.

A trial court has broad discretion in controlling the conduct of a trial. Pique v. State,

22
480 S.W.2d 546, 550-51 (Tenn. Crim. App. 1971), cert. denied (Tenn. 1972). The court

is responsible for every aspect of the trial. State v. McCray, 614 S.W.2d 90, 93 (Tenn.

Crim. App. 1981). Exercise of that discretion will not be disturbed except where an abuse

is clearly demonstrated. Cole v. State, 512 S.W.2d 598, 602 (Tenn. Crim. App.), cert.

denied (Tenn. 1974). The defendant has failed to demonstrate the trial court abused its

discretion by allowing the child witness to hold the bear while testifying.

The issue is without merit.

SENTENCING

The state appeals Gibson’s sentences and claims error in sentences for three

counts of child rape (Counts 3, 6, and 7). Gibson did not file a response to this issue.

The trial court found the defendant to be a standard offender and sentenced Gibson

to a Range I sentence consisting of confinement for twenty-one (21) years in the

Department of Correction for each of the four offenses. The trial court ordered that the

sentences are to be served concurrently. The effective sentence is 21 years. The order

stated Gibson will serve 30 percent of all the sentences before he is eligible for release

classification. It is apparent the trial court sentenced Gibson under the aggravated rape

statute for all counts which allows for the possibility of release after serving a portion of the

sentence.

The state argues that for three of the four convictions (Counts 3, 6, and 7), the

defendant should have been sentenced under the child rape statutes, Tenn. Code Ann.

§ § 39-13-522 (Supp. 1996) and 39-13-523 (Supp. 1996), which went into effect July 1,

1992. The defendant was indicted under the child rape statute Tenn. Code Ann. § 39-13-

522 for all four charges. As the state notes, only the offense in count 2 occurred prior to

the effective date of the child rape law July 1, 1992.

Tennessee Code Annotated § 39-13-523(b) provides:

(b) Notwithstanding any other provision of law to the contrary,
a multiple rapist or child rapist, as defined in subsection (a),
shall be required to serve the entire sentence imposed by the
court undiminished by any sentence reduction credits such
person may be eligible to earn. . . .

23
 The proof at trial established three of the offenses, Counts 3, 6, and 7, occurred

after July 1, 1992. The victim’s testimony and the timetable provided by her sister

indicated those three offenses occurred after their half-sister, Jamie, was born in

November of 1992. This would place the offenses after the effective date of the statute.

For this reason, the defendant should have been sentenced under Tenn. Code Ann.

§ 39-13-523(b) for Counts 3, 6, and 7. Therefore, this case is remanded to the trial court

for resentencing in accordance with this opinion.

________________________________________
JOE B. JONES, PRESIDING JUDGE

CONCUR:

_____________________________________
DAVID H. WELLES, JUDGE

_____________________________________
JERRY L. SMITH, JUDGE

24