IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED JANUARY SE SSION, 1998 November 10, 1998
Cecil W. Crowson
STATE OF TENNESSEE, ) Appellate Court Clerk C.C.A. NO. 01C01-9701-CR-00024 )
Appellee, )
)
) DAVIDSON COUNTY
VS. )
) HON. THOMAS H. SHRIVER PAS CHA L HYD E, JR., ) JUDGE )
Appe llant. ) (Attempted 1st Degree Murder, ) Aggra vated R ape, As sault)
ON APPEAL FROM THE JUDGMENT OF THE CRIMINAL COURT OF DAVIDSON COUN TY
FOR THE APPELLANT: FOR THE APPELLEE:
TERRY J. CANADY JOHN KNOX WALKUP 211 Printer’s Alley Building Attorney General and Reporter Suite 400 Nashville, TN 37201 DARYL J. BRAND Assistant Attorney General 425 5th Avenu e North
Nashville, TN 37243-0493
VICTOR S. JOHNSON
District Attorney General
MARY HAUSMAN
Assistant District Attorney General Washington Square, Suite 500 222 2n d Aven ue, No rth
Nashville, TN 37201-1649
OPINION FILED ________________________ AFFIRMED IN PART; REVERSED IN PART; REMANDED
DAVID H. WELLES, JUDGE
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OPINION
The Defendant, Paschal Hyde, Jr., appeals as of right pursuant to Rule 3 of the Tennessee Rules of Appellate Procedure. He was convicted by a Davidson Coun ty jury of thre e coun ts of aggra vated ra pe, three counts o f assault, and two counts of attempted first-degree murder. He was sentenced to concurrent terms of life for each conviction for aggravated rape. He was sentenced to eleven months and twenty-nine days for each count of a ssault, to be served concurrently with each other and with his convictions for aggravated rape. For the two attempted first-degree murder convictions, the Defendant was sentenced to twenty-five years on each count to be served consecutively to each other and to the oth er con victions. Thus, his effective senten ce is life plus fifty years. The Defendant appeals both his convictions and sentences, raising the following issues: (1) That the evidence was insufficient to convict him of aggravated rape; (2) that the trial court erred by denying the Defendant’s motion to sever the offenses ; (3) that cou nts one , two and three in th e indictment are invalid because they failed to specify the requisite mens rea for aggravated rape; and (4) that the trial court erred by misapplying sentence en hancem ent factors and ordering conse cutive se ntence s. After a careful review of the re cord in this case, we affirm in part and reverse and remand in part the judgment of the trial court.
The Defendant and the primary victim in this case, Nicole Bowman, had a lengthy and disturbing history together prior to the prosecution of the Defendant
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on these numerous charges. The Defendant was her stepfather. Teresa Bowman, the victim’s mother, lived with the Defe ndan t whe n Nico le was sma ll. Teresa Bowman had two children fathered by the Defendant, Antonio Hyde and Felicia Bowman. Nicole recalled that the Defendant lived with them when she was very little and called her names, such as “blackie” and “ugly.” The Defendant would grab Nicole by her right arm and talk “dirty” to her. At age three, four, or five the D efend ant be gan to vagin ally pe netrate Nicole with his index and m iddle finge rs. Som etimes she wo uld not co operate and refu se to open her legs and the Defendant would yell at her, choke her, smother her, and put his hand over her mouth. Nicole would cry and tell the Defendant that the penetration with his fingers hurt he r. The D efend ant pe netrate d her in this fashion approximately three or four times per week. After the act was completed, the Defe ndant would hug Nicole and would ask if she wanted anything. These acts would occur at night because her mother worked at night. The Defendant would accost the victim in her bedroom and the bathroom. The Defendant would kiss he r, wou ld try to p ut his p enis in her m outh, a nd wo uld lie on top of h er. The Defe ndan t wore unde rwea r and w ould re mov e Nico le’s underwear and rub his penis against her until he reac hed a clima x. He w ould penetrate her with his fingers. Felicia Bowman would sleep in the same room with Nicole and would often wake up in the night and see the Defendant in the room. Teresa Bowman often took Felicia out with her and left Nicole with the Defen dant.
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The Defenda nt lived with Nicole u ntil she was thirteen . After he left, he would continue to sen d for her or com e to her hous e when h er mother was working. Nicole recalled that this would happen particularly on special occasions like the Defendant’s birthday or Father’s Day because he w ould remind her “I know you gonna give me some.” The victim never told anyone because the Defendant threatened to kill her or her mother. Nicole once attempted to tell her mother when Teres a Bow man was g oing to the lau ndrom at with Nicole ’s sister, Felicia. Nicole cried and begged to go, but her mother left her at the hou se with the Defenda nt. The Defe ndan t then s exua lly pen etrated the vict im an d ma de it hurt as punishment because she had not cooperated.
When Nicole was eighteen 1 , she was dating a boy and her moth er had told the Defendant. The Defendant insisted that Nicole tell him what she did with her boyfriend and she admitted that she had been having sexual relations with him. The Defendant slapped her in the fa ce and pushe d her he ad to the win dow while they were traveling in his car. He said she was a slut. He stated: “You supposed to be a Christian. You ain ’t nothing b ut a whor e. You just like y our m ama . Y’all ain’t amount to nothing -- y’all not gonna amount to nothing, never will be nothing.” He took her to his friend Fanny Lee’s house and took her into the bathroom and pushed her in the tub. The Defendant spit in her face and called her names. The Defendant later had sexual intercourse with the victim. She
1 In her trial testimony, Nicole Bowman first stated that the incident occurred when she was her later fifteen. In
testimony, she
stated that she was
eighteen when the
incident occurred .
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resisted and the Defendant smothered and choked her and forced h er legs apart and penetrated her with his penis. Such encounters continued with frequency until Nicole was twenty-one years old.
Nicole graduated from high sch ool in June of 19 92 and w orked at Krog er, and then L ockh eed S uppo rt Syste ms in Nash ville. W hen N icole received her paycheck, she would have to surrender the money to the Defendant imm ediate ly because he told her sh e owe d it to him because he had taken care of her all her life. The Defendant would then distribute half of the money to Nicole. The Defendant had also cosigned an auto loan for Nicole. Nicole made all the paym ents for the car and the Defendant used the money she ga ve him eve ry week to pay the note on his red pic kup truck . During th is time, the Defendant lived with the woman named Fanny Lee. Ms. Lee owned the home and paid the bills, so the Defendant lived there for free. The Defendant made Nicole keep her car at Ms. Lee’s house and she could only use it to drive to work, to church, and occa siona lly to the park on Sunday afternoons. The Defendant told Nicole that her parents should know where sh e was at all times and she ca rried a pager. The Defe ndan t knew her w ork sc hedu le and th e am ount o f time it would ta ke to get there and back home. Nicole had no social life and did not have close friends.
Nicole started dating Claude Rucker shortly before the acts which resulted in the attempted murder convictions. She would sneak to see him between 9:30 when she got off work and 10:30 when her sister got off work at Lockheed
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because she drove h er sister to w ork and had to wait until her shift ended. The Defendant was unaware of her relationship with Mr. Rucker. On November 6, 1994, Nicole attended church with her family, including the Defendant who at that time was an assistant minister. She noticed that he was acting strange and was not reading the Bible, but sitting there li ke he had something on his mind. As Nicole and h er fam ily were leaving the church, a man named Lawon had his arm around her shoulder and they were discussing his getting a job at Lockheed. The Defendant essentially broke the conversation up and told Nicole and her sister Felicia to go home. At home, the Defendant confronted Nicole, claiming that she had an “attitude problem.” She told the Defendant that he had the problem, not her, and she walked off. She stated that she just could not take it anymore.
Later that even ing, in th e Def enda nt’s pre senc e, Nico le and Felicia we re arguing abou t late fee s for a re nted v ideo ta pe. He started criticizing Felicia, stating that she was selfish and would n ot amo unt to any thing. Felicia blurted out something about Nicole using up gas in the car. The Defendant jerked Nicole up by the collar and threw her on a chair. Felicia ran out and the Defendant to ld their brothe r Tony to unp lug the teleph one. H e told Nicole to park h er car in his yard and complained again of her attitude problem. He threaten ed to tear up the car. Me anwh ile, Felicia ha d called th e police. N icole initially sou ght a wa rrant, but did not ge t one at tha t time. She then de cided to s tay at C laude Ruck er’s house. The next day, the Defend ant drove he r to work because he would not let her use her car. Nicole told Erica Frierson, her friend at Lockheed, that she was going to ride home with her an hour early and get her clothes. Her mother saw
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that she was home early and asked whether the Defendant knew this. Nicole told her mother she was staying the night with Ms. Frierson, but she went to Claude Ruck er’s house. Ms. Frierson drove Nicole to work on Tuesday, November 8, 1994.
That morning, Mr. Rucker went over to his mo ther’s house to check on her and the Defendant was there. Mr. Rucker had noticed the Defendant hanging around at his mother’s house a lot during the prior week and felt that he was looking for some inform ation. Mr. Rucker volunteered to talk with the Defendant and told him that he was dating Nicole. The Defe ndan t initially indicated that he had no prob lem w ith them d ating, but th en laun ched into conc erns a bout N icole’s lying to him and his attitude reflected rage. The Defendant refused to shake hands with Mr. R ucker w hen he left.
Rucker thought that the Defendant went to Lockheed when he started receiving pages with the number 911. Meanwhile, Nicole’s manager at Lockheed, William Brady, informed her that the Defendant was there and wanted to speak with her. Although she was reluctant, she clocked out and went outside. Erica Frierson told Brady that it was not a good situation. Brady went outside and observed the Defendant telling Nicole that she needed to apologize to her mother. The conversation escalated and the De fenda nt tried to force N icole into a blue B lazer. A s Brad y turne d to go inside and te ll his employees to call the police, Erica Frierso n cam e out a nd wa lked u p beh ind the Defe ndan t. She to ld Nicole that she did not have to go with the Defendant. He turned around and
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threw her to the pavement. Nicole scrambled across the car seat and got out through the driver’s side door. Both Nicole and Frierson headed toward the Lockheed building. Brady told them to get inside and told the Defendant that he was on private property and that he had to leave. The Defendant sat there for awhile a nd then left.
Claude Rucker and his sister went to Lockheed and met the Defe ndan t’s vehic le on the road. The Defendant turned around and came back, but when he saw that the police were there, h e did n ot stop . Ruck er’s sister got nervous and told him she wanted to leave and he agreed to take her hom e. As they w ere traveling on Polk Avenu e to Fes slers Lan e, the De fendan t followed them and drove beside Rucker’s car. He said: “You need to go get Nicole and bring her to me where I can talk to her and you need to get her now. It’s done got serious and it’s going to get seriouser (sic) than that.” Rucker told the Defendant that he had earlier offered to com e with N icole to talk to h er mo ther an d that h e wou ld see what he could do. They proce eded in traffic to a traffic light at Murfree sboro Road and the Defendant was approximately three cars in front. The Defendant got out of his car and told Rucker that he had to bring Nicole to him that day. The Defen dant left and R ucker re turned to Lockh eed. Rucker went with Nicole and Erica Frie rson to the police de partme nt to obtain warran ts for assa ult.
Rucker and Nicole stayed out that evening until approximately 11:00 or 11:15. Whe n they return ed to R ucke r’s house, they noticed Nicole’s car, a Buick LeSabre, parked on the street with the Defendant ducked down in the seat. They
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kept driving and called the police from a gas station for an escort home. The Defen dant w as gon e whe n they re turned.
The next day, N ovem ber 9th , Ruck er and Nicole went out in the morning to take Rucker’s sister to work. When they returned, the Defendant was at the house. He asked to speak with Nicole and approached their car and said that he did not have a weapon. They all stood on the sidewalk and the Defendant asked why Nicole was lying and disresp ectful of her moth er. He told her to go home with him and the conversation then continued. Rucker reached in the car and got Nicole ’s purse , which conta ined c ards fro m the police depa rtmen t, as we ll as his car keys. He told the Defe ndan t that the y wou ld go with him, but that he needed to go into the house for a minute. Nicole and Rucker went into the house and Rucker called the police. While they were waiting, Rucker went outsid e and told him that he had called the police and they would all go together to straighten things out. Rucker went inside and locked the door because they did not trust the Defen dant. Soon afterwards, the Defendant knocked on the door and they let him in. The Defendant grabbed Nicole by the right arm and told her to “come on” and they both went into the bed room. H e told her “Just put my package in an envelope and stick it in the mailbox at the house.” Nicole asked what he meant and he pulled out a wad of cash. She told him that she did not have to give him money anym ore. The Defen dant w hispere d in her ea r: “Don’t w orry abo ut it. When I see you I’m gonna shoot you down like a dog .” The D efenda nt wen t into the living room and said “Claude, you can bring her home when you get ready. You’ve got to come out. You’ve got to go to the store or somew here. . . . just
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remember that I’m gonna shoot you down like a dog.” Claude followed the Defendant onto the porch and the Defendant said: “Claude, you get in the way, I’m go ing to s hoot y ou do wn like a dog , too.” W hen th e Def enda nt reac hed h is car, he said “C laude, do n’t you cro ss me .” Rucke r and N icole obta ined wa rrants for threatening their lives.
The next morning, November 10, 1994, Rucker and N icole dec ided to go out for breakfast. Mr. Rucker had parked his car around the corner in hopes that the Defendant would not know its location. The two walked to the car and s at in it while the engine warmed up. Nicole said, “Here comes Junior, “ referring to the Defe ndant. The Defendant pulled up quickly in his red Ford king cab pickup truck. The Defendant opened the truck door and approached wielding a shotgun. Rucker put his car in reverse, it hesitated a minute, and the Defendant started shooting. The c ar sw erved and h it a telep hone pole. R ucke r could not se e well because he had blo od on h is face. He opene d his car d oor and saw th e Defendant ejecting the spent shell casin gs as if he were g oing to reload. Rucker took off runn ing an d the D efend ant sa id “Uh -huh, I to ld you I was g oing to kill you.” Rucker ran to a w oman standing in her doo rway w ith a cellular phone and asked her to call the police.
Fanny Lee was taking a shower between 8:00 and 8:30 a.m. when she heard some one co me into the house and stand by the bathroom door for a few minutes, then leav e. She th ought it w as the D efenda nt. Appro ximate ly twenty minutes later, the po lice cam e to her d oor. She saw tha t the Defendant’s blue
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Blazer was not parked there. She stated that the Defendant owned two guns and kept them at her house. On the morning of November 10th, the shotgun was missing. She admitted that her nephew would sometimes borrow a rifle, but she was not certain as to the difference between a shotgun and rifle.
The shotgun blasts shattered the front windshield of the car. Claude Rucker suffered injuries, including shotgun pellets and glass in his hea d, face, left arm and s hould er. His e ar wa s split and had to be stitche d bac k toge ther. N icole Bowman received massive injuries to her face. She was hospitalized from November to January. She lost vision in her right eye, there was damage to the roof of her mouth and her teeth, and she had to be fed through a tube. She must undergo reconstructive surgery of her nose and face. When she was released from the hospital, she was still being fed through a tube, had a suction machine and was fed oxygen through her trachea. She stayed a short while with her mother, but was rehospitalized briefly. When she was released, she went to live with Fanny Lee.
At trial, Nicole read letters that she had written to her mother in 1991 and in 1989 or 1990, alluding that her relationship with the Defendant was negative and that he had “done” things to her and that he had an “evil eye” even if he was a church deacon. The letters revealed thoughts of suicide and Nicole pleading with her mo ther to listen a nd und erstand her. She alluded to something “eating me up on the ins ide bad ly.”
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At trial, Nicole’s mother, Teresa Bowman, testified on behalf of the Defen dant. She admitted that when she lived with the Defendant, he made her give him the money she earned at her job. She never saw the Defendant sexu ally abusing her dau ghter. Sh e got a letter from Nicole in 1991, but did not think she was being raped. When Nicole started staying overnight with Claude Rucker, Teresa Bowman asked the Defendant to bring her home on Tuesday, November 8th. On cross-examination, Teresa Bowman admitted that she understood that the letters written by h er daughter meant that she was being sexua lly abuse d by the D efenda nt.
The Defen dant pre sented a som ewha t different acco unt of th e eve nts in question. The Defendant testified that he carried a twenty-gauge shotgun for his protection. He stated that he went to Lockheed on November 8th at Teresa Bow man ’s behes t to ask N icole to come home. He testified that Erica Frierson grabbed him first and that he just pushed and she fell. He testified that he went to Claude Rucker’s mother’s house later that day to pick up a payment for hitting a “number” because Rucker’s mother paid out winnings. On November 9th, the Defendant went to check on Nicole at Rucker’s house. He stated that Rucker warned him no t to start anyth ing. The Defendant felt like Rucker was threatening him. He testified that Rucker sold drugs on Green Street. Rucker told th e Defendant that he was dating Nicole. The Defendant stated that he kept Nicole ’s car at his house because it had been broken into at her house. He would clean the car and had the brakes repaired, and once found a bag of marijuana in the
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car. He con fronted N icole, wh o denie d using m arijuana. H e also w anted h er to pay a ce llular telepho ne bill that sh e had “ru n up.”
The Defendant testified that on November 10th, he went to the cleaners, gave someone a ride, then we nt to Rucker’s house. He saw Rucker sitting in a car, but not N icole. He s tarted to ge t out of the tru ck and thought Rucker was reaching under the seat for a weapon. He got his shotgun out and shot at the car. The D efenda nt wen t home , left his truck there and drove aw ay in his Blazer. He turn ed him self in three days late r.
On cross -examination, the Defendant denied that he exerted control over Nicole Bowman and that she had to report to him whenever she went anywhere. The Defendant testified that Nicole voluntarily had him hold her money for her because she spent a lot. He denied making Fanny Lee or any of the children give him mone y. He admitted that he lived without paying expenses at Fanny Lee’s house and that he used the money he got to play the numbers and to buy clothes for the children. He stated that he used his own money to gamble. The Defendant denie d callin g Nicole “darkie.” He denied that he lived with Teresa Bowman during 1979 through 1981. He denied hitting Nicole, but admitted that he may have “whooped” her once or twice. He denied any sexua l contact w ith Nicole. He testified that Nicole made up all of the allegations, but admitted that he assau lted her. He de nied that h e tried to throw Nicole in his car at Lockheed and said that the witnesses were lying. The Defendant stated that he was concerned for Nicole and that shooting her was an accident. He testified that he
15
shot only o nce, e ven th ough there w ere tw o hole s in the ca r’s windshield. The Defendant stated that he left the shotgun in his truck, but the gun was never recovered.
During the January term of 1995, a Davidson County grand jury issued a five-count indictment against the Defendant for assault against Erica Frierson, two assaults against Nicole Bowman, and the attempted first degree murder of Nicole Bowman and Claude Rucker. A superseding indictment was issued from the April, 1995, term, adding counts one through eight of aggravated rape including the aforementioned offenses in counts nine through thirteen. Subsequently, the trial court dismissed counts four through eight for aggravated rape because the indictments were issued beyond the applicable statute of limitatio ns for thos e offen ses. C ount o ne for a ggrav ated ra pe be twee n July through December, 1979, count two for aggravated rape between January 1 and December 31, 1980, and count three for aggravated rape between January 1 and December 31, 198 1, were tried along with counts nine through thirteen regarding the events that occurred in November, 1994. The Defendant was convicted of three counts of aggravated rape, three counts of assault, and two counts of attempt to commit first-degree murder. He now appeals both his convictions and sentences.
I.
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As his first issue, the Defendant argues that the evidence was insufficient to support the guilty verdicts for aggravated rape. However, during our examination of the re cord in this cas e, it app eared that pla in error precluded us from such a review of the evidence.
Although the Defenda nt did not raise the issu e on appe al, the record reflected that the S tate did no t elect the offenses on which to rely in convicting the Defendant of the aggravated rapes which occurred in 1979, 1980, and 1981. This Court may recog nize a n issue for con sidera tion wh en it ap pears as pla in error. Tenn. R . Crim. P . 52(b); State v. Walton, 958 S.W.2d 724 (Tenn . 1997). An error affecting “the substantial rights of an accused may be noticed at any time . . . where nece ssary to do su bstantial justice.” Id. The Defen dant here requested and received a bill of particulars, but this added little specificity to the charge of multiple acts of aggravated rape.
During our initial review of the record, it became apparent that some of the proceedings in the trial court had not been transcribed and made a part of the record on appeal. We therefore gave the parties the opportunity to supplement the record if necess ary and to file supp lemental briefs o n the issue of the failure of the State to elect the o ffenses u pon w hich it relied fo r convictio n. In its supplemental brief, the Sta te concedes that the failure to elect cons titutes error, but argues that in this ca se the er ror is harm less. We do not believe that the error is ha rmless beyon d a reas onable doubt.
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The doctrine of election applies to crim es of a sexua l nature where there have been s everal se parate in cidents o f sexual a ssault. Burlison v. State, 501 S.W.2d 801 (Te nn. 197 3). Burlison holds that in these cases it is the duty of the trial judge to require the State to make an election at the close of its case-in-chief as to the sp ecific of fense s the S tate w ishes to rely on for con viction. Id. at 804. The rule stem s from a n early T ennes see ca se, Jamis on v. Sta te, 94 S.W. 675 (1906), that required the State to elect the specific offenses involving charges of carnal knowledge of a female between the ages of twelve and eighteen years . Burlison cites three fundamental reasons for an election:
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 betw een offense s, some juro rs convicting on o ne offense a nd others, ano ther.
Burlison, 501 S.W .2d at 803 .
The m ost seriou s conce rn of these three is the third require ment:
In practice, however, election at the end of the s tate's proof does little to aid the defendant in preparing his defense. A defendant is obviously better served by requesting a bill of pa rticulars before trial, pursua nt to Tenn. R. Crim . P. 7(c). See generally State v. Hicks, 666 S.W.2d 54 (Tenn. 1984). Moreover, the second concern is largely moot, because an accused is protected from double jeopardy for the type of offense or offenses cha rged during the entire period of time covered in the indictm ent. See State v. Hardin, 691 S.W.2d 578, 580-81 (Tenn. Crim . App. 1985 ). The third Burlison rationale addresses the most serious concern: the well-established right under o ur state constitution to a unanimous jury verdict before a criminal c onviction is impos ed.
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State v. Shelton, 851 S.W .2d 134 , 137 (Te nn. 199 3).
The Defendant was charged with aggravated rape; testimony concerning such behavior during the time period specified in the indictment is relevant and admissible. State v. Rickman, 876 S.W.2d 824, 828-829 (Tenn. 1994). Although this evidence was admissible, the trial court erred in allowing the state to present this evidence without requiring an election as mandated by Burlison. Rickman 876 S.W.2d at 829. Our supreme court has reaffirmed that the trial court “take precautions to ensure that the jury deliberates over the particular charged offense, instead of assembling a ‘patchwork verdict’ based on the different offenses in evidence.” Tidwe ll v. State, 922 S.W.2d 497, 501 (Tenn. 1996 ). A primary concern in assuring a unanimous jury ve rdict is when multiple inc idents have occurred, and a general time frame has been drafted in th e indictm ent. Id. “[I]t is quite evident that there is no apparent means to differentiate among various counts of the same offense. Additionally, the indictments provide no means to enable a fact-finder to match a specific c onduc t to a specific count.” Id.
In the case sub judice, the victim testified that she was raped by digital penetration on multiple occasions over a period of years. She stated that the rapes occurred wherever she was living and that they occurred in her bedroom or in the bathroom. Finally, the victim testified that these acts occurred “every day” or “three or four times a week” in 1979, 1980 and 1981. She did not describe any particular event with specificity. We believe that we must consider
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this an example of the “grab bag” that our supreme court warned against in Tidw ell:
This approach, in our v iew, is akin to a "grab-bag" theory of justice.
To illustrate the operation of this theory, in any given case the Sta te cou ld present proof on as many offenses within the alleged period as it chose.
Because all such offens es will have b een "pro ven," the ju ry may , in effect, reach into the brimming bag of offenses and pull out one for each count.
Even when done b y this m ethod , the arg ume nt goe s, eac h offen se will have been prove n bey ond a reaso nable doubt. We acknowledge that the illustration is an extreme one, but we think it makes the point: such an approa ch is con trary to our law.
Tidw ell, 922 S.W.2d at 501. Here, the victim testified that finger penetration occurred basically all of the time. Without an election, the jury could reason that because the ac ts occu rred all of the time , at least one aggravated rape occurred in each y ear in qu estion. U nder ou r law, this co nstitutes re versible e rror.
We recognize, as the jury surely did, that the Defendant’s actions are deplo rable examples of domination and abuse. We find the result we must enforce mos t distas teful. Th e Def enda nt is clea rly a pe rson w ho en gend ers little or no sym pathy. H owev er, we no te that the State could have perhaps assisted Ms. Bowman, who was an adult at the time of trial, to isolate specific incidents of abuse in the years in question upon which to anchor the convictions. With the proof as it curren tly exists in the record, we are compelled to grant the Defendant a new trial on the charges for aggravated rape. We simply cannot conclude that the error is h armles s beyo nd a rea sonab le doub t.
20
As our supreme court recently again emphasized:
We appreciate the difficulties involved in prosecuting cases of sexual abuse against small children. In such cases, the rules of evidence and the rules of procedure have been relaxed to some extent to accom moda te very young witnesses. Nevertheless, the constitutional protec tions g uaran teed a crimin al defe ndan t, who is presumed by the law to be inno cent un til proven g uilty, canno t be suspended altogether because of the victim’s age or relative inability to testify. In cases such as this one, the state must either limit the testimony of prosecuting witnesses to a single event, or prepare the case so that an election can be made before the matter is submitted to the jury to decide.
Walton, 958 S.W.2d at 728 (quoting Shelton).
Finally, we ca nnot a dequ ately a sses s the s ufficiency of the evidence because we find that the State failed to elect the offenses upon which to convict the Defendant. The evidence in this record does not assure the jury achieved a unanimous verdict and precludes this Court from effectively reviewing the sufficiency of the convicting evide nce a s we c anno t be ce rtain what evidence was used by the jury to determ ine guilt on each co unt. See Tidw ell, 922 S.W.2d at 501; Shelton, 851 S.W.2d at 138.
II.
The Defen dant also argues that the co unts of the indictme nt alleging aggravated rape a re fatally defective for failure to allege the requisite mens rea. The Defendant relies primarily upon the decision of this Court in State v. Roger Dale Hill, C.C.A. N o. 01C 01-950 8-CC -00267 , Wayn e Cou nty, (Ten n. Crim. A pp., Nashville, June 20, 1996). We first note that this Court’s decision in Hill was based upon an interp retation of o ur new crimin al cod e, and this cod e is
21
applicable only to offenses occurring after November 1, 1989. Secondly, our supreme court h as rev ersed this Co urt’s de cision in Hill. See State v. Hill, 954 S.W.2d 7 25 (Tenn. 1 997).
In the case sub judice, we have examined the language of the challenged indictment and we conclude that the indictment adequately alleged the criminal offenses charged and sufficiently informed the Defendant of the charges against him such tha t the conv icting cou rt had jurisd iction. Also, the disposition of the convictions because of the election issue negates the need for further analysis.
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III.
As his next issue, the Defendant contends that the trial court erred by failing to grant his motion to sever offenses. The Defendant was indicted on eight counts of aggravated rape which occurred between 1979 and 1985, three counts of assault and two counts of attempted first-degree murder, all of which occurred in 1994. The offens es we re con solida ted for tr ial. The Defendant filed a motion to sever counts 1 through 8 and cou nts 9 through 1 3 becaus e they were remote in time and u nrelated in nature . The De fendan t also filed a m otion to dismiss counts 4 through 8, which was granted. On the day of the trial, the trial judge stated tha t he would allow the State to present evidence to connect the offenses, but if they did not, he would grant a severance and a mistrial. The remaining three coun ts of aggra vated ra pe we re tried toge ther with th e coun ts originating from the 1994 inc idents.
Under Rule 8(b) of the Tennessee Rules of Criminal Procedure, separa te and distinct offenses may be joined in one indictment if (1) the offenses are of the same or similar character or (2) the offenses constitute parts of a common scheme or plan . Unde r Rule 14(b)(1) , a defendant has a right to a severance of offenses joined by Rule 8(b) unless (1) the offenses are part of a common scheme or plan and (2 ) the ev idenc e of on e wou ld be ad miss ible upon the trial of the others. Ten n. R. Crim. P. 1 4(b)(1).
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We must first determine whether the offenses that were tried together constitute a common scheme or plan. A common scheme or plan for severance purposes is the same as a common scheme or pla n for evidentiary purposes. State v. Hoyt, 928 S.W .2d 935 , 943 (Te nn. Crim. App. 1995) State v. Hallock, 875 S.W.2d 285, 289-90 (Tenn. Crim. App. 1993) (citing State v. Peacock, 638 S.W.2d 837 (Tenn. Crim. App. 1982)). There are three categories of "common scheme or plan" evidence. These include (1) distinctive designs, or signature crimes; (2) a larger , continuin g plan or consp iracy; and (3) the same transaction. Hoyt, 928 S.W.2d at 943. A continuing plan of conspiracy “involves not the similarity between the crimes, but the common goal or purpo se at which the y are directed.” Id. (citation omitted). In such circumstances, the proo f sough t is of a working plan, operating tow ards the future with such force as to make proba ble the crime for w hich the defen dant is on trial.” Id.
In the case at ba r, the proof demonstrated that the Defendant dominated the victim’s family from the time he became involved with them. He began to use Nicole Bowman as his sexual “property” and molested her from as early as the age of three u ntil the tim e of the offens es tha t occu rred in 1994. Nicole would be forced to stay at h ome a lone with the Defe ndant w hen he r sister wa s allowe d to leave with her mo ther. He exerted control over the victim even after he moved out of her home when she was thirteen. The Defendant demanded that she come to his house so he could continue to molest her. He demanded money from Teresa Bowman, and was the disciplinarian to her children, whether or not he was the biological father. When Nicole Bowman began to work, the
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Defendant deman ded mo ney from h er. He re quired he r to be a cces sible a t all times. Nicole had no social life and did not da te. When she was eighteen, the Defendant found out that she was dating a boy and that she had had sexual relations with him. The Defendant became enraged, assaulted the victim, and then forced va ginal intercourse w ith her.
The victim graduated from high school and then worked full time. Evidence established that the Defendant continued to dominate his “possession.” He cosigned for a car but forced Nicole to keep it at his house. She had to surrender her wage s to the Defend ant, who us ed them to pay for his own car. She had a pager and could only use her car to drive to and from work and to church on Sunday. She wa s expected to account for h er whereabouts at all times. She still had no social or dating relationships. When Nicole began seeing Claude Rucker, she became more courageous and cooperated less frequently. She had to see Mr. Rucker secretly during a free hour she had after her work shift ended and before h er sister’s sh ift ended. When she left her mother’s house, at age twenty-one, the Defendant attempted to force her in his vehicle to make her return home. After the Defendant discovered she was seeing Claude Rucker, he became enraged. He stalked the two and warned them that he would shoot them down “like dogs.” His desire to control Nicole Bowman culm inated in his shooting her and Claude Rucker as they sat in Rucker’s car outside his house.
Although the offenses tried tog ether were indeed remote in time, the evidence in the record reveals that the offenses committed by the Defendant
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were perpe trated a s a res ult of his goal to sexu ally m olest a nd co mple tely domin ate Nicole B owm an for his o wn gra tification. See State v. Bomar, C.C.A. No. 85-81-III, Davidson County (Tenn. Crim. App., Nashville, Nov. 27, 1985) perm. to appeal denied (Tenn. 198 6).
We must next consider whether the evidence of the aggravated rapes wou ld properly be admitted in the trial for the assaults and attempted murders. Evidence that the accused committed crimes independent of those for which he is on trial is gene rally ina dmis sible because such evidence lacks relevance and invites the finder of fact to infer guilt from prope nsity. Tenn. R. E vid. 404(b). Howe ver, evidence of other crimes, wrongs, or acts may be admissible for other purposes. 404(b). For example, when a prior ba d act re veals a defe ndan t's motive or inten t, show s a com mon sche me o r plan, o r rebut s a de fenda nt's theory that the charged offense was an acciden t or mistake, the trial court may admit evidence o f the prio r bad a ct after h olding a hea ring ou t of the ju ry's presence. At the h earing the trial judge must weigh the probative value of the evidence against possible unfair prejudice to the defendant. Tenn. R. Evid. 404(b); State v. West, 844 S.W .2d 144, 149 (Tenn. 199 2).
In the case sub judice, the trial court ruled the evidence of the prior acts to be admissible at trial. The evidence of the history of sexual abuse was admitted not to prove the Defendant acted in accord with this character but as part of the proof establish ing his m otive for the assau lts and atte mpted murde rs. See State v. Smith, 868 S.W.2d 561, 574 (Tenn. 1993). The Defendant claimed that the
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assau lts occurred only because he was trying to mediate an argument between Nicole Bowman and her mother. He went to her place of employment to take her home at her mother’s behest. He also claimed that his actions taken to control Nicole were for her own protection. The Defendant suggested that Claude Rucker had thre atened the Defe ndant to leave Nicole alone because Rucker was with her now . The Defendant testified that he only shot at Claude Rucker’s car because he thought Rucker was reaching for a gun. The State’s proof and the Defe ndan t’s expla nation s wer e clea rly contradictory and motive was certainly an issue in proving the level of intent for attempted first-degree murder. Proof of the nature of the rela tionsh ip betw een th e victim of a violent crime and a defendant prior to the com mission of the offen se are re levant to show d efenda nt's hostility and a settled purpos e to harm the victim . See Smith , 868 S.W.2d at 574; State v. Turnb ill, 640 S.W .2d 40, 46-47 (Tenn. Crim . App. 1982 ); State v. Glebock, 616 S.W.2d 897, 905-906 (Tenn. Crim. App. 1981). We do not believe that the probative value of this evidence is outweighed by the danger of unfair prejudice.
Therefore, we cannot conclude that the trial court erred by failing to grant the Defend ant’s motion to s ever.
IV.
As his final issue, the Defendant contends that the trial court e rred in its application of enhancement factors for the two attempted first-degree murder convictions and in imposing consecutive sentences. When an accused
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challenges the length, range, or the man ner of s ervice of a se ntenc e, this court has a duty to conduct a de novo review of the sentence with a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35- 401(d). This presumption is "conditioned upon the affirmative showing in the record that the trial court considered the sentencing principles and all relevant facts and circums tances ." State v. Ashby, 823 S.W .2d 166, 169 (Tenn. 199 1).
In conducting a de novo review of a sentence, this court must consider: (a)
the evidence, if any, received at the trial and the sentencing hearing; (b) the presentence report; (c) the principles of sentencing and arguments as to sentencing alternatives; (d) the nature and characteristics of the criminal conduct involved; (e) any statutory mitigating or enhancement factors; (f) any statement that the defe ndant made on his own behalf; and (g) the potential or lack of potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, and -21 0; see State v. S mith, 735 S.W .2d 859, 863 (Tenn. Crim . App. 1987 ).
If our review reflects that the trial court followed the statutory sentencing procedure, imposed a lawful sentence after having given due consideration and proper weight to the factors and principles set out under the sentencing law, and that the trial court's findings of fact are adequately supported by the record, then we may not modify the sentence even if we would have preferred a different result. State v. Fletcher, 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).
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The trial court sentenced the Defendant to twenty-five year sentences for each attempted first-degree murder conviction. The trial court found the following sentence enhancement factors applicable to count twelve, the attempted murder of Nicole Bowman: (1) That the Defendant has a previous history of criminal behavior in addition to those acts ne cessary to establish the appropriate range; (6) that the personal injuries inflicted upon the victim were particularly great; and (9) that the defendant possessed a firearm in the commission of the offense. Tenn. Code Ann. § 40-35-114(1),(6),(9). On count thirteen, the attempted murder of Claude Rucker, the trial court applied enhancement factors (1), (9) and (10) that the defendant had no hesitation about committing a crime when the risk to human life was high. Tenn. Code Ann. § 40-35-114(1), (9), (10). The trial court found no mitigating factors.
The Defendant argues that enhancement factor (6) does not apply to the sentence in count twelve because it is an element of attempted first-degree murder. We disagree. This Court has held that it is appropria te to ap ply enhancement factor (6) to attempted first-degree murder because the offense may be com mitted without causing any injury and thus, is not an essential element of the offen se. State v. Nix, 922 S.W.2d 894, 903 (Tenn. Crim. App. 1995); State v. Arch ie Lee R oberts, C.C.A . No. 0 1C0 1-960 3-CC -0008 2, De kalb Coun ty (Tenn. Crim . App., Nash ville, Jan. 30, 1997) perm. to appeal denied (Tenn. 1997); State v. Tim Fox, C.C.A. No. 03C01-9503-CR-00061, Sevier Coun ty (Tenn. Crim. A pp., Kno xville, June 21, 199 6). Here , the injuries to Nicole
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Bowman included extended hospitalization, severe facial disfiguration and the loss of vision in one eye.
Next, the Defend ant argues tha t the trial court misapplied factor (10)
to count thirteen because there were no bystanders during the commission of the offense and that he was convicted based on both victims. The State co unters that the Defendant shot Nicole Bowman, then shot Claude Rucker. Because Nicole was leaning against Rucker when the Defendant shot the second time, this put her fur ther at risk, su pporting the impo sition of factor (10). Ordinarily, factor (10) may not be applied when it is an essential element of the offense. It has been considered such in charges for attempted murder because the offense constitutes beha vior tha t is inheren tly a high risk to hum an life. State v. Makoka, 885 S.W.2d 366, 373 (Tenn. Crim. App. 1994); However, when others who are not the victims of the crime are at risk of har m, this fac tor may be app lied. Id.; State v. Hicks, 868 S.W .2d 729 , 732 (Te nn. Crim . App. 19 93). In the case at bar, the Defendant was charged with attempted first-degree murde r for both victims involved. Therefore, the high risk to human life was clearly inherent in the charged offenses. The fact that Nicole Bowman was near Claude Rucker when the secon d shot w as fired do es not cre ate a risk that was a “second time around” that would justify a finding of risk of harm above and beyond that inherent in the offense of attem pted first-de gree m urder. Furthe rmor e, there is no evidence that any witness es to the e vent we re in close enoug h proxim ity to the shootings to be considered at risk because of the offense. We must conclude that the trial court erred in applying factor (10) to count thirteen, the attempted murder of Claude
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Rucker. Nevertheles s, we believe tha t the remaining enhance ment factors m ore than adequately support the twenty-five year sentence imposed by the trial court. Likewise, we affirm the twenty-five year sentence imposed for the attempted murder of Nicole Bowman.
The Defendant also charg es that the trial court erre d by ord ering him to serve his sentences for the attem pted first-de gree m urders c onsec utively. The trial court fo und th at the D efend ant w as a d ange rous o ffende r, whic h requires that an offend er’s “beh avior indic ates little or no regard for human life, and no hesitation about comm itting a crime in which the risk to hu man life is high.” Tenn. Code Ann. § 40-35 -115( b)(4). B eyon d this, th e evid ence must support “the finding that an extended sentence is necessary to protect the public against further criminal conduct by the defendant and that the consecutive sentences must reason ably relate to the sev erity of the offenses com mitted.” State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995); see State v. Taylor, 739 S.W.2d 227, 23 0 (Tenn . 1987); Gray v . State, 538 S.W .2d 391, 393 (Tenn. 197 6).
The trial court found that the Defendant was a dangerous offender and we agree. Tenn. Code Ann. § 4 0-35-11 5(4). He had no hesitation about committing a crime in which the risk to hu man life w as high. The circumstances surrounding the offenses were aggravated in every sense. Furthermore, the trial court found, considering the prin ciples enumerated in Wilkerson, that the sentences reaso nably related to the severity of the offenses and that an extended period of incarcer ation wa s nece ssary to p rotect the p ublic.
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The Defendant argues that he had only one prior aggravated assault and that this is not enough to support consecutive sentences. We have no reservations in finding that the trial cou rt properly senten ced the Defen dant to cons ecutiv e terms. In addition to his prior conviction, the Defendant exhibited a long-term pattern of abusive and controlling behavior not only in regard to the victim, Nicole Bowman, but her entire family. The Defendant had no hesitation in threatening an d attac king M s. Bow man and w hoev er else interfer ed with his purpose to control her. The Defendant was unrepentant at trial and claimed that the other witnesses lied about him. There is no indication that when the Defendant is released, he will refrain from engaging in the same destructive behaviors for which he has been incarcerated. Therefore, we affirm the trial court’s impos ition of con secutive twenty-five year terms. The sentences for assa ult rema in concurrent as ordered by the trial court for an effective sentence of fifty years.
Accordingly, we affirm the Defendant’s convictions for assault and attempted first-degree murder and the effective fifty-year sentence ordered therefor. We reverse the convictions for aggravated rape and remand for a new trial.
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DAVID H. WELLES, JUDGE
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CONCUR:
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JERRY L. SMITH, JUDGE
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THOMAS T. WOODALL, JUDGE