State of Tennessee v. Roger Dean Guin

                                                                                             12/15/2023
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs April 25, 2023

                STATE OF TENNESSEE v. ROGER DEAN GUIN

                   Appeal from the Criminal Court for Knox County
                           No. 118055 Scott Green, Judge


                              No. E2022-00391-CCA-R3-CD


The defendant, Roger Dean Guin, appeals his Knox County Criminal Court jury
convictions of aggravated sexual battery, rape of a child, assault, rape, incest, and sexual
battery by an authority figure, arguing that the trial court erred by denying his motion to
suppress his statement and that the evidence was insufficient to support his convictions.
Because the State’s elections in Counts 8, 9, and 10 were insufficient to protect the
defendant’s right to a unanimous jury verdict and to protect against violations of the
principles of double jeopardy, we vacate those convictions and remand for a new trial on
those counts. We also remand the case to the trial court for entry of corrected judgments
in Counts 3, 5, and 7 reflecting the merger of those convictions into Counts 2, 4, and 6
respectively and reflecting the proper misdemeanor classification and sentences. We
reverse the conviction in Count 1 and affirm the trial court’s judgments in all other respects.

Tenn. R. App. P. 3; Judgments of the Criminal Court Affirmed in Part; Reversed in
                       Part; Vacated and Remanded in Part

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which TIMOTHY L.
EASTER, and TOM GREENHOLTZ, JJ., joined.

J. Liddell Kirk, Madisonville, Tennessee (on appeal), and Robin Vargas, Blaine, Tennessee
(at trial), for the appellant, Roger Dean Guin.

Jonathan Skrmetti, Attorney General and Reporter; Abigail H. Rinard, Assistant Attorney
General; Charme P. Allen, District Attorney General; and Rachel Lambert and Jordan
Murray, Assistant District Attorneys General, for the appellee, State of Tennessee.

                                         OPINION

              The Knox County Grand Jury charged the defendant by presentment with
one count of aggravated sexual battery, two counts of rape of a child, two counts of rape,
one count of sexual battery by an authority figure, and four counts of incest.

                At the November 2021 trial, the victim, who was 18 at the time of trial,
testified that she was born on June 19, 2003. She said that in 2013, the defendant, who was
dating the victim’s mother at the time, moved into the Knoxville home that the victim
shared with her mother and siblings. The victim’s mother and the defendant married in
2017, and the defendant moved out of the home sometime around the “end of 2018,
beginning of 2019.” The victim said that the defendant had a position of authority over her
and her siblings with their being expected to obey him and his being permitted to discipline
them. She said that the defendant “was a lot nicer to me” than to her siblings and “would
always kiss me and hug me.” The victim said that after the defendant moved in, her mother
had to “restart her chemo[therapy] treatment” for leukemia, which treatments caused her
to “[]sleep a lot of the time.”

              The victim recalled an occasion sometime during 2013, in which her “whole
family was in the living room watching a movie” when the defendant began “scratching
my back.” He told her “that my skin was soft. And then proceeded to put his hands around
my waistband and touched my butt” inside her clothing. During a second incident also in
2013, the victim was in her bedroom (“bedroom 1”) that she shared with her two sisters
when the defendant “came in and put his hands” “inside” her “vaginal area.” The victim
said that she moved into another bedroom (“bedroom 2”) in the house in 2015, and the
defendant came into that room and touched her in the same way that he did in [bedroom
1].” The victim said that the defendant repeated this conduct “[a]lmost every night” while
the defendant lived in the home and while the victim was ages 10 through 15.

                 The victim recalled an occasion in which the victim accompanied the
defendant in the car “to get food” when the defendant “put his hand on my thigh and told
me . . . that if I had told anybody, we would get in trouble.” The victim understood him to
mean his “[t]ouching my vaginal area.” The victim said that “generally,” the defendant
touched her vaginal area and other parts of her body over her clothing “anywhere” in the
house, including “the living room.” When asked whether this conduct occurred when she
was younger than or older than 13 years old, the victim replied, “I’d say both.”

               On another occasion, the victim was up at night caring for her mother who
was sleeping after a chemotherapy treatment when the defendant, who “had gotten drunk,”
told her to go to another room in the house. She went to the room that was a guest room at
the time (“bedroom 3”) and “laid on the bed about to go to sleep” when the defendant “had
come in there with just his boxers on and a beer and . . . his phone in his hand.” The
defendant “started touching me” and put his penis in her “vaginal area,” which she said
“hurt.” The victim could not remember exactly when this incident occurred but estimated
                                            -2-
that it was approximately two years before the defendant moved out in 2018, when the
victim was somewhere between the ages of 13 through 15. She also said that bedroom 3
had been her brother’s room before he moved out at age 18. She said that she was four
years younger than her brother.

              The victim said that she did not report any of these incidents because she was
scared of the defendant, she had seen him be physically violent with her mother, and the
defendant had said that there would be bad consequences if she called the police about the
violence. The victim said that when she was a junior in high school, she told her boyfriend
about the defendant’s sexual abuse, and her boyfriend reported it to the police. When the
police came to her home to investigate, she disclosed the abuse and also reported it in a
recorded interview with the Department of Children’s Services (“DCS”).

              During cross-examination, the victim acknowledged that during an interview
with DCS in 2018, she denied having been touched sexually. She said that she did not
disclose the abuse at that time because the defendant drove her to DCS that day and had
told her, “Make sure not to say something.” The victim also said that she had “been through
DCS up and down” and neither liked nor trusted them.

               The parties stipulated to the fact that when the victim spoke with the police
at her home, she alleged that the abuse “had been ongoing for some period of time” and
that there “had been multiple instances.” The victim’s statement “was not limited to just
saying that [the abuse] happened in 2018.”

               During redirect examination, the victim testified that she had undergone
more than one forensic interview at the Childhelp facility coordinated by DCS. She
acknowledged that she had been the victim of a separate sexual assault allegation involving
someone other than the defendant. She said that during the forensic interview about that
separate allegation, she denied any sexual abuse despite the abuse by the defendant being
ongoing at that time. The victim reiterated that she “was scared” and that the defendant
was still living with her family at that time and had “told me not to say anything about
him.”

              Lieutenant Miranda Spangler testified that she worked in the family crimes
unit at the Knox County Sheriff’s Office (“KCSO”). She testified that she investigated this
case and reviewed the victim’s recorded forensic interview in which the victim disclosed
the defendant’s abuse. Lieutenant Spangler arranged for the victim’s mother to place a
recorded telephone call to the defendant. She said that it was her practice to talk with the
person who was going to place the call about “what we’re going to ask and what we need
to know” from the defendant. The call was placed from Lieutenant Spangler’s office. The
                                            -3-
jury heard the recorded telephone call between the victim’s mother and the defendant.

              In that call, the victim’s mother asked the defendant, “Did you ever do
anything inappropriate with [the victim]?” At first the defendant admitted to hugging the
victim and “rubb[ing] her back.” Although the defendant was silent through much of the
conversation, he ultimately admitted to having “touched” the victim. He also admitted that
on one occasion, he entered a room with the victim, pulled down his boxers, pulled down
the victim’s pants, and had sex with the victim. The defendant told the victim’s mother, “I
guess I should have came to you when she wanted attention.”

              Lieutenant Spangler acknowledged that she could be heard whispering on
the recording and said that she was directing the victim’s mother on follow-up questions
and what information she needed to obtain.

               During cross-examination, Lieutenant Spangler acknowledged that she did
not interview the victim’s boyfriend but explained that the victim disclosed the abuse to
him over a text message and did not deem it necessary to obtain a statement from him. She
said that she did not collect evidence from inside the house because the abuse had occurred
approximately one-and-a-half to two years prior to when she began her investigation. She
acknowledged that she did not interview any of the victim’s siblings or investigate the
victim’s mother’s medical records for her chemotherapy dates to try to determine more-
specific dates of when the incidents of abuse occurred.

               On redirect examination, Lieutenant Spangler said that she was not the initial
investigator on this case and that she got the case from Kenneth Aiken. As part of the
investigation, she extracted data from the victim’s cellular telephone.

              The State rested.

              After a Momon colloquy, the defendant elected neither to testify nor put on
any proof.

              On this evidence, the jury convicted the defendant of one count of aggravated
sexual battery, two counts of rape of a child, two counts of rape, one count of sexual battery
by an authority figure, and one count of incest as charged in Count 9. As to the remaining
three incest charges in Counts 3, 5, and 7, the jury convicted the defendant of the lesser
included offenses of assault. After a sentencing hearing, the trial court sentenced the
defendant to an effective sentence of 40 years.

              Following a timely but unsuccessful motion for a new trial, the defendant
                                             -4-
filed a notice of appeal.1 In this appeal, the defendant argues that the trial court erred by
denying his motion to suppress his statement made to the victim’s mother and that the
evidence is insufficient to support the convictions. Upon our order for supplemental
briefing, the defendant also argues that the State’s elections of offenses were inadequate
to protect his right to a unanimous jury verdict and to protect against a violation of the
principles of double jeopardy. He also argues that his assault convictions in Counts 3, 5,
and 7 violate the principles of double jeopardy.

                                       I. Motion to Suppress

              Before trial, the defendant moved to suppress a statement that he made to
the victim’s mother during a telephone call that was being recorded by law enforcement,
arguing that his statement was involuntary because the victim’s mother, acting as an agent
of the State, was overly coercive. The defendant argued only that the statement was
obtained in violation of his Fifth Amendment privilege against self-incrimination; he did
not raise a Sixth Amendment claim of a violation of his right to counsel or that he was
entitled to Miranda warnings.

               During a hearing on the motion to suppress, Lieutenant Spangler testified
that as a detective with the family crimes unit of the KCSO, it was a common practice for
her to attempt to get recorded statements from suspects. In this case, Lieutenant Spangler
had the victim’s mother place a recorded telephone call to the defendant. She said that
before the call, she discussed with the victim’s mother “how she would start the
conversation and kind of where we wanted to go with the conversation.” She told the
victim’s mother that the conversation should be about “trying to get help for her daughter”
and her “want[ing] to know the truth so that she could get her counseling help, whatever
she needed to do for her.” Lieutenant Spangler told the victim’s mother that “we don’t
threaten, we don’t make promises, we don’t do anything like that.” The call was placed
from the lieutenant’s office, and Lieutenant Spangler and another detective were present
during the call. The defendant did not answer the first call, and the victim’s mother “left
a message.” When the defendant called back, the entirety of the conversation was
recorded. Lieutenant Spangler said that during the call, the defendant “admitted to
touching the victim and having sex with her.” Lieutenant Spangler said that during the
call, the victim’s mother made no threats or promises and told the defendant that she
wanted to know what had happened so that she could get help for the victim. She also
said that nothing prevented the defendant from terminating the call.

1
        We note that the defendant’s notice of appeal was late by two days, being due on March 28, 2022.
However, because the State does not address the untimeliness of the notice of appeal and because appellate
counsel was appointed less than two weeks before the notice of appeal was due, we waive the timely filing
requirement in the interests of justice. See Tenn. R. App. P. 4(a).
                                                   -5-
                In the recorded telephone call, after the victim’s mother asked whether the
defendant had done “anything inappropriate” with the victim, she told him, “I’m not doing
this to try to get you in trouble.” She also said, “I need to know what happened so that I
can talk to [the victim] about it and I can work with her on this and get through this.
Otherwise, I’m going to send her to a counselor and let the counselor deal with it and then
whatever happens, happens.” When the defendant would not answer the victim’s mother’s
questions, she said, “By law, if I send her to a counselor, they have to tell what she tells.
And the amount of stuff she’s told me, I promise you’d get in a lot of trouble if anybody
else finds out.” After a period of silence by the defendant, the victim’s mother said,
“Answer the question. Because I don’t think you’d like for people to be showing up at
your dad’s house and getting your dad all upset about it, would ya? . . . So, you and I talk
about it or it’s going to be worse and the whole damn world’s going to end up knowing
about it.” After another period of silence, she said, “Ok, I guess I’ll have to call your dad
then, huh?” After yet another period of silence by the defendant, the victim’s mother said,
“How do you think Kathy would feel if she ever found out about this? You think she’d let
you see your kids anymore?” And later, “Do we need to end our phone call and I can call
Kathy?” Several times during the conversation, the defendant asked if he could call back
later, but the victim’s mother told him no.

               During cross-examination, Lieutenant Spangler acknowledged that during
the telephone conversation, the victim’s mother led the defendant to believe that she was
at home. She said that prior to the call, she and the victim’s mother “had a roleplay of
how she would start the conversation” but that “[m]ost of the stuff that she said, I did not
instruct her to say.” She instructed the victim’s mother to “start the conversation however
you want to, but let’s start it as . . . we need to talk, and we need to talk about how to help
[the victim].” She told the victim’s mother “to put everything in her words.” During the
call, Lieutenant Spangler “wr[o]te down questions to get her back on track” when the
conversation “start[ed] straying away from what we’re trying to achieve.” Lieutenant
Spangler said that the victim’s mother repeatedly told the defendant not to hang up but
reiterated that he could have done so at any time. Lieutenant Spangler acknowledged that
she could be heard whispering on the recording, “Get him to say how old she was when
they had sex.” She said that she also wrote down questions during the conversation that
the victim’s mother should ask.

             On redirect examination, Lieutenant Spangler said that she directed the
victim’s mother on “[v]ery little” of the 48-minute conversation.

             In its written order denying the defendant’s motion to suppress, the trial
court concluded that the defendant’s statement was voluntary. In this appeal, the
                                              -6-
defendant reasserts his argument that his statement was involuntary because the victim’s
mother was overly coercive.

               A trial court’s factual findings on a motion to suppress are conclusive on
appeal unless the evidence preponderates against them. State v. Binette, 

 (Tenn. 2000); State v. Odom, 

 (Tenn. 1996). Thus, questions of
credibility, the weight and value of the evidence, and the resolution of conflicting evidence
are matters entrusted to the trial judge, and this court must uphold a trial court’s findings
of fact unless the evidence in the record preponderates against them. Odom, 

; see also Tenn. R. App. P. 13(d). The application of the law to the facts, however,
is reviewed de novo on appeal. State v. Keith, 

 (Tenn. 1998).

              As an initial matter, we note that the defendant failed to raise the issue of
suppression in his motion for new trial, and accordingly, he has waived our plenary review
of the issue. See Tenn. R. App. P. 3(e) (“[I]n all cases tried by a jury, no issue presented
for review shall be predicated upon error in the admission or exclusion of evidence . . . or
other ground upon which a new trial is sought, unless the same was specifically stated in
a motion for a new trial; otherwise such issues will be treated as waived.”).

               Whether properly assigned or not, however, this court may, “[w]hen
necessary to do substantial justice, . . . consider an error that has affected the substantial
rights of a party at any time, even though the error was not raised in the motion for a new
trial.” Tenn. R. App. P. 36(b). This court will grant relief for plain error only when:

              (1) the record clearly establishes what occurred in the trial
              court; (2) the error breached a clear and unequivocal rule of
              law; (3) the error adversely affected a substantial right of the
              complaining party; (4) the error was not waived for tactical
              purposes; and (5) substantial justice is at stake; that is, the error
              was so significant that it “probably changed the outcome of the
              trial.”

State v. Hatcher, 

 (Tenn. 2010) (quoting State v. Smith, 

 (Tenn. 2000)). The party claiming plain error bears the burden of satisfying
all five criteria as a prerequisite to plain error review. See 

 Because each factor must be
established, we need not consider all five factors when a single factor indicates that relief
is not warranted. State v. Fayne, 

 (Tenn. 2014) (citing State v.
Bledsoe, 

 (Tenn. 2007)). “[A]n error would have to [be] especially
egregious in nature, striking at the very heart of the fairness of the judicial proceeding, to


                                               -7-
rise to the level of plain error.” Fayne, 

 (citation omitted) (alterations in
Fayne).

               Here, the trial court’s admission of the statement did not breach a clear and
unequivocal rule of law. Generally, “the law provides no protection to a suspect or a
defendant whose trusted . . . confidant ‘has recorded or transmitted the conversations which
are later offered in evidence to prove the State’s case.’” State v. Sanders, 

 (Tenn. 2014) (quoting Clariday v. State, 

 (Tenn. Crim. App.
1976)). In our view, the secretly recorded telephone call placed by the defendant’s wife
was not so deceptive as to overbear the defendant’s will and render his confession
involuntary.2 See State v. Pate, No. M2009-02321-CCA-R3-CD, 

, at
*9-10 (Tenn. Crim. App., Nashville, Nov. 22, 2011) (citing State v. Robert Bacon, No.
03C01-9608-CR-00308, 

, at *12 (Tenn. Crim. App., Knoxville, Jan. 8,
1998); State v. Branam, 

 (Tenn. 1993)). Consequently, the
defendant is not entitled to relief on this issue.

                                       II. Election of Offenses

               Within the defendant’s challenge to the sufficiency of the evidence, we
perceive two related issues: (1) whether the State’s election of offenses was sufficient to
protect the defendant’s state constitutional right to a unanimous jury verdict and (2)
whether the defendant’s convictions of assault in Counts 3, 5, and 7 violate the defendant’s
state and federal constitutional protections against double jeopardy. The parties did not
raise these issues, and we ordered supplemental briefing to allow the parties an opportunity
to be heard on these matters. See State v. Bristol, 

, 927 (Tenn. 2022)
(“[W]hen an appellate court considers an issue that has not been properly presented, it must
give the parties ‘fair notice and an opportunity to be heard on the dispositive issues.’”
(quoting State v. Harbison, 

 (Tenn. 2018)).

              In supplemental briefing, the defendant argues that the State failed to
adequately elect offenses to ensure the defendant’s right to a unanimous jury verdict as to
all counts and that the convictions in Counts 3, 5, and 7 should be dismissed for violation
of the principles of double jeopardy. The State contends that its election of offenses was
2
         We need not reach the question whether the defendant’s wife was acting as an agent of the State.
See State v. Willis, 

 (Tenn. 2016) (“In cases that involve suspects making confessions
to friends, relatives, and other associates, the law need not be concerned with whether that confidant could
properly be labeled as a private citizen or an agent of the State.” (quoting State v. Sanders, 

 (Tenn. 2014)); see also State v. Clark, 

 (Tenn. 2014). The issue of the confidant’s
agency only arises when the defendant’s Sixth Amendment right to counsel is at stake, Massiah v. United
States, 

 (1964) and the right to counsel only attaches when formal charges are initiated, Willis,

.
                                                     -8-
sufficient and that any error was harmless but concedes that the convictions in Counts 3,
5, and 7 violate the principles of double jeopardy and should be merged into Counts 2, 4,
and 6 respectively.

               When the evidence adduced at trial indicates that the defendant has
committed more offenses against the victim than were charged in the indictment, the State
must elect the facts upon which it intends to rely for each count of the indictment in order
to protect “the defendant’s state constitutional right to a unanimous jury verdict by ensuring
that jurors deliberate and render a verdict based on the same evidence.” State v. Johnson,

 (Tenn. 2001); see also State v. Kendrick, 

 (Tenn.
2001); State v. Brown, 

 (Tenn. 1999); State v. Walton, 

 (Tenn. 1997). The election requirement arises most often when a defendant is
alleged to have performed multiple sexual acts over a lengthy period of time against young
children who are unable to provide the exact date on which any one act occurred. See, e.g.,
Johnson, 

; Brown, 

. Our supreme court has held
that when an “indictment charges that sex crimes occurred over a span of time, evidence
of unlawful sexual contact between the defendant and the victim allegedly occurring during
the time charged in the indictment is admissible,” but the State “must elect at the close of
its case-in-chief the particular offense for which it is seeking a conviction” in order “to
preserve a criminal defendant’s right under the state constitution to a unanimous jury
verdict” while allowing “latitude in the prosecution of criminal acts committed against
young children who are frequently unable to identify a specific date on which a particular
offense was committed.” State v. Knowles, 

 (Tenn. 2015)
(citations omitted). “Any description that will identify the prosecuted offense for the jury
is sufficient. In fulfilling its obligation . . . to ensure that an election occurs, the trial court
should bear in mind that the purpose of election is to ensure that each juror is considering
the same occurrence.” State v. Shelton, 

 (Tenn. 1993) (internal
citations and footnote omitted).

                Our supreme court grants the State “some latitude in the prosecution of
criminal acts committed against young children who are frequently unable to identify a
specific date on which a particular offense was committed.” State v. Qualls, 

 (Tenn. 2016) (quoting State v. Rickman, 

 (Tenn. 1994)). “The
election requirement may be satisfied in a variety of ways,” including by having the victim
identify incidents by “a specific month,” type of abuse, or “reference to a meaningful event
in his or her life.” Id. at 10-11.

              When the State is faced with the “unusual situation” of a victim’s being able
to provide only “generic evidence” of “a pattern of abuse that occurred over an extended
period of time,” the State may rely on a modified unanimity jury instruction “as a substitute
                                                -9-
for the strict election doctrine.”3 Id. at 14-15. However, the reliance upon a modified
unanimity instruction is “limit[ed] . . . to cases involving only generic evidence.” Id. at 16
(emphasis added). When the State “presents non-generic evidence of distinguishable
criminal acts, the prosecution must elect the specific act for which it seeks conviction in a
manner that identifies the prosecuted offense for the jury.” Id. Importantly, when an
election of offenses is required, “[t]he election must be made at the conclusion of the State’s
case-in-chief.” Id. at 10 (citing State v. Rickman, 

 (Tenn. 1994));
Knowles, 

.

               Here, with the exception of Counts 8, 9, and 10, the State presented non-
generic evidence of criminal acts and, consequently, was required to make an election at
the close of its case-in-chief. The trial court discussed the State’s elections at the end of
the State’s case-in-chief, but other than assuring the court that it could make sufficient
elections as to each count, the State did not make explicit elections until its closing
arguments.

               The defendant did not object to the State’s election of offenses at trial and
did not raise the issue in his motion for new trial. Consequently, our review is limited to
plain error review. Tenn. R. App. P. 36(b); State v. Hatcher, 

 (Tenn.
2010).

             “Because the election requirement safeguards a criminal defendant’s
fundamental, constitutional right to a unanimous jury verdict, errors pertaining to the

3
       The Tennessee Pattern Jury Instructions provides the following modified unanimity instruction
developed from the language in Qualls:

                The state has offered proof in its case in chief of more than one act
                allegedly committed [by the defendant][by one for whom the state alleges
                the defendant is criminally responsible] which the state alleges constitutes
                an element of the offense of _________ as charged in Count _______ of
                the indictment. To ensure a unanimous verdict, the State must prove
                beyond a reasonable doubt the commission of all of the acts described by
                the alleged victim [in that particular count] as occurring within the time
                period charged in [that count of] the indictment.

                Before you can find the defendant guilty, you must unanimously agree that
                the State has proven beyond a reasonable doubt the commission of all of
                the acts described by the alleged victim as occurring within the time period
                charged in [that count of] the indictment.

7 Tenn. Prac. Pattern Jury Instr. T.P.I.—Crim. 42.25(a).

                                                   -10-
sufficiency of the prosecution’s election are subject to plain error review.” Knowles, 

 (citing Burlison v. State, 

 (Tenn. 1973); Kendrick, 

; Walton, 

 (Tenn. 1997); State v. Clabo, 

 (Tenn. Crim. App. 1995)). “When applying plain error review,” we are mindful
“that the election requirement is merely a means by which to protect the right to a
unanimous verdict. There is no right to a perfect election, and . . . the election requirement
may be satisfied in a variety of ways.” Knowles, 

. Importantly, “the
election requirement applies to offenses, not to the facts supporting each element of the
offense.” 

               Here, the record clearly establishes what occurred in the trial court.
Furthermore, we can think of no tactical reason for the defendant to waive the State’s
obligation to elect offenses. We conclude that substantial justice is at stake in this case and
will address whether the State’s elections were sufficient to protect the defendant’s
constitutional rights as to each charged count.

                           Count 1 - Aggravated Sexual Battery

               As to Count 1, the presentment charged the offense of aggravated sexual
battery of a child less than 13 years old by touching the victim’s “primary genital area” “on
or between” June 19, 2013 and June 18, 2016. The State elected the specific act of the
defendant’s touching the victim’s vagina over her clothing in the living room. The trial
court charged the jury that to find the defendant guilty of Count 1, they must consider only
whether when the victim “was approximately nine, ten, eleven, or twelve years old,” the
defendant “touched [her] vagina with his hand on top of her clothes in the living room.”

              In the State’s questioning the victim whether the defendant had ever touched
the victim’s vagina over her clothing, the following exchange occurred:

              Q: Okay. Did that happen in your bedroom or some other room
              in the house?

              A: The—the living room. Sorry.

              Q: Okay. So there was a time that you were in the living room
              with [the defendant]?

              A: It would have—I mean, it was . . .

              Q: I’m just asking to try to understand. You’ve talked about
                                             -11-
              the incident that he touched you on your butt, the first incident.

              A: Uh-huh.

              Q: Was there a second incident you’re talking about now where
              he also touched your vagina in the living room over your
              clothes?

              A: No. I was saying in general it would just be anywhere.
              Like, out of those rooms I would [indiscernible].

              [Q]: I’m sorry. I’m—I don’t think I’m understanding.

              [A]: I’m trying to think of a way to put this to make sense of
              it.

              ....

              A: Okay. I just said “living room” to give him, like . . . Like,
              it would have happened anywhere. Like, out of the rooms I
              had already described to you, it happened in all of them.

              ....

              Q: Okay. And the touching I’m specifically asking about now
              is—is only an instance where he would have touched you on
              your vagina over your clothes.

              Do you have a specific memory of that happening and where
              that would have happened at?

              A: No.

               It is clear from this exchange that the victim clarified that there was not a
specific incident of touching over her clothes that occurred in the living room and that she
did not recall any specific incident. The evidence did not support the State’s election for
the aggravated sexual battery charge in Count 1 because the victim could not recall any
specific incident. Our supreme court has provided an avenue for the State to pursue
convictions of sexual offenses on generic evidence, see Qualls, 

 (“[T]he
election doctrine may be satisfied in generic evidence cases by the trial court providing a
                                            -12-
modified unanimity instruction that allows a conviction only if the jury unanimously agrees
the defendant committed all the acts described by the victim.”), but here the State chose to
pursue a conviction by electing a specific incident and did not ask the trial court for a
modified unanimity instruction as required by Qualls. Because the victim testified only
that the defendant generally touched her vagina over her clothing on multiple occasions,
the jury could not have rendered a unanimous verdict as to a specific instance of conduct.
Consequently, the evidence did not support the State’s election, and the election was
insufficient to protect the defendant’s right to a unanimous jury. Because, as we will
discuss below, the evidence was insufficient to support the conviction in Count 1, that
count is reversed, and the underlying charge is dismissed.

                       Counts 2 and 3 - Rape of a Child and Incest

                As to Count 2, the presentment charged rape of a child by vaginal penetration
of a child less than 13 years old occurring between June 19, 2013 and June 18, 2016. Count
3 charged incest related to the same conduct charged in Count 2. The State elected the
specific conduct of the defendant’s digital penetration of the victim in bedroom 1 in 2013.
The trial court instructed the jury that to find the defendant guilty of Count 2, they must
consider only whether when the victim “was approximately nine to ten years old during
2013[,] the same year [the defendant] came to reside within the residence,” the defendant
“put his hand inside of [the victim’s] pants and then put his finger inside her vagina” while
the victim was in bedroom 1. The victim’s testimony established that she lived in bedroom
1 when the defendant moved into the house in 2013 and that she moved into bedroom 2
sometime in 2015. The victim could differentiate specific acts of digital penetration only
by location—one incident in bedroom 1 and another incident in bedroom 2. The victim
could not provide more specific details as to when the incident of digital penetration in
bedroom 1 occurred. The State’s electing that the offense occurred in bedroom 1 is
sufficient to guarantee jury unanimity and protect the defendant from double jeopardy in
Counts 2 and 3.

                       Counts 4 and 5 - Rape of a Child and Incest

               As to Count 4, the presentment charged rape of a child by digital penetration
of a child less than 13 years old, occurring between June 19, 2013 and June 18, 2016.
Count 5 charged incest related to the same conduct charged in Count 4. The State elected
the defendant’s digital penetration of the victim in 2015 in bedroom 2. The trial court
instructed the jury that to find the defendant guilty on Count 4, they must consider only
whether when the victim “was approximately twelve years old during 2015,” the defendant
“came into her bedroom, . . . and he put his hand inside of [her] pants and then put his
finger inside of her vagina” while the victim slept in a bunk bed in bedroom 2. The victim’s
                                            -13-
testimony established that she moved into bedroom 2 sometime in 2015 and that the
defendant digitally penetrated her vagina at some point while she lived in bedroom 2. The
victim could not otherwise provide more specific details as to when the incident of digital
penetration in bedroom 2 occurred. The State’s electing an instance of digital penetration
in bedroom 2 is sufficient to differentiate from the incident that occurred in bedroom 1 as
charged in Count 2 and was sufficient to protect the defendant’s right to jury unanimity
and against double jeopardy violations in Counts 4 and 5. The fact that the victim could
not identify a specific time when the digital penetration occurred does not invalidate the
State’s election.

                              Counts 6 and 7 - Rape and Incest

               As to Count 6, the presentment charged rape by vaginal penetration by force
or coercion, occurring between June 19, 2016 and June 18, 2018. Count 7 charged incest
related to the same conduct charged in Count 6. For Count 6, the State elected the single
act of penile penetration that occurred in bedroom 3. The trial court instructed the jury that
to find the defendant guilty of Count 6, they must consider only whether when the victim
“was approximately thirteen, fourteen, or fifteen years old,” the defendant “came into the
bedroom [3] wearing only his boxers and was holding a beer. [The defendant] instructed
[the victim] to lay on her stomach and removed her clothes. [The defendant] then inserted
his penis into [the victim’s] vagina.” This election was sufficient to protect the defendant’s
right to a unanimous jury verdict as to Counts 6 and 7.

                              Counts 8 and 9 - Rape and Incest

                For Count 8, the presentment charged rape by digital penetration by force or
coercion, occurring between June 19, 2016 and June 18, 2018. For this count, the State
elected the “digital penetrations . . . [that] happened on a nightly basis until [the defendant]
moved out. [The defendant] continues coming into [the victim’s] bedroom [2] during . . .
those ages, 14, 13, and he’s still coming into that bedroom, still sticking his finger inside
of her.” The trial court instructed the jury that to find the defendant guilty on Count 8, they
must consider only whether when the victim “was thirteen or fourteen years old,” the
defendant “continued to penetrate her vagina with his finger on an almost nightly basis
until he left the family home in 2018.” In our view, this election was insufficient to protect
the defendant from double jeopardy; although the State elected the victim’s age as 13 or
14 years old, the victim testified to only one specific act of digital penetration occurring in
bedroom 2, and the jury could have considered the same evidence supporting the
conviction in Count 4. Moreover, the generic evidence of almost-nightly digital
penetrations is insufficient to protect the defendant’s right to a unanimous jury verdict, and
the State did not request the modified unanimity instruction under Qualls. Consequently,
                                             -14-
the election was also insufficient as to Count 9.4 The defendant is entitled to a new trial on
Counts 8 and 9.

                       Count 10 - Sexual Battery by an Authority Figure

             As to Count 10, the presentment charged sexual battery by an authority figure
of a child 13 or older but less than 18 by touching the victim’s “primary genital area”
between June 19, 2016 and June 18, 2018. For this count, the State made the following
election:

                [T]ake the year 2015.5 That’s the last year that he’s in the home
                that’s distinct from any previous count we’ve asked you to look
                at. [The victim] told you [the defendant] continues to come
                into the bedroom, continues to touch her vagina. . . . [The
                defendant is] married to [the victim’s] mother. He’s a
                stepparent . . . [with] the right to discipline.”

               The trial court instructed the jury that to find the defendant guilty on Count
10, they must consider whether when the victim “was approximately 15 years old,” the
defendant “continued to penetrate her vagina with his finger on an almost nightly basis
until he left the family home in 2018” and whether the defendant was the victim’s
“stepparent and had parental authority over [her] at the time.” Again, we find this election
insufficient to protect the defendant against double jeopardy and to ensure a unanimous
jury verdict. Because the victim could not differentiate specific instances of digital
penetration other than by the two bedrooms, the jury could have considered the same
evidence that supported the conviction in Count 4, and the generic evidence that the digital
penetration occurred on an almost-nightly basis is not sufficient to ensure jury unanimity
as required by our constitution. The defendant is entitled to a new trial on Count 10.

                Although we have concluded that the defendant is entitled to a new trial on
Counts 1, 8, 9, and 10, we will consider the sufficiency of the evidence as to all counts to
facilitate further appellate review.
4
         The election for Count 9 may be inconsistent with the presentment. The presentment alleges that
the act in Count 9 occurred “on or about June 19, 2016.” Unlike every other count of the presentment,
Count 9 does not allege a range of time, but is essentially time specific. See McCullough v. State, No.
M2004-02430-CCA-R3-PC, 

, at *6 n.2 (Tenn. Crim. App. July 7, 2006) (“[T]he
petitioner’s indicment was essentially time specific, alleging that the offense was committed on or about
July 28, 1998.”). The State’s election, however, offers a range from 2016 to 2018. In essence, it expands
the time span set forth in the presentment.
5
         It appears that the State misspoke and meant to say 2018, which was the year the defendant moved
out of the victim’s home. This error, however, further convolutes the State’s attempted election.
                                                  -15-
                                   III. Sufficiency of the Evidence

                Sufficient evidence exists to support a conviction if, after considering the
evidence—both direct and circumstantial—in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 

 (1979);
State v. Dorantes, 

 (Tenn. 2011). This court will neither re-weigh the
evidence nor substitute its inferences for those drawn by the trier of fact. Dorantes, 

. The verdict of the jury resolves any questions concerning the credibility of
the witnesses, the weight and value of the evidence, and the factual issues raised by the
evidence. State v. Cabbage, 

 (Tenn. 1978). Significantly, this court
must afford the State 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.

                                     A. Aggravated Sexual Battery

                As charged in Count 1, aggravated sexual battery is “unlawful sexual contact
with a victim by the defendant or the defendant by a victim” when “[t]he victim is less than
thirteen (13) years of age.” T.C.A. § 39-13-504(a)(4). “‘Sexual contact’ includes the
intentional touching of the victim’s . . . intimate parts, or the intentional touching of the
clothing covering the immediate area of the victim’s . . . intimate parts, if that intentional
touching can be reasonably construed as being for the purpose of sexual arousal or
gratification . . . .” Id. § 39-13-501(6). “‘Intimate parts’ includes the primary genital area
. . . of a human being . . . .” Id. § 39-13-501(2) (2010).6

               The evidence considered in the light most favorable to the State does not
really establish an offense. The victim could not recall any specific instance, but said that
the offense occurred when she was “both” younger and older than 13 and “in all of the[]”
rooms in the house. We conclude that this evidence is not sufficient to support the
defendant’s conviction for aggravated sexual battery in Count 1. That conviction is
reversed, and the underlying charge is dismissed.

                       B. Rape of a Child and Related Assault Convictions

                 As charged in Counts 2 and 4, “[r]ape of a child is the unlawful sexual

6
        The definition of “intimate parts” was expanded in July 2013, but the additional terminology is not
relevant here. At all times relevant to this case, the definition included “the primary genital area” as charged
by the State. See T.C.A. § 39-13-501(2) (Supp. 2013).
                                                     -16-
penetration of a victim by the defendant . . . if the victim is more than three (3) years of
age but less than thirteen (13) years of age.” Id. § 39-13-522(a) (2010). Our Code defines
“sexual penetration” as “sexual 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
. . . body.” Id. § 39-13-501(8).

              As relevant to the defendant’s convictions of the lesser included offenses of
assault in Counts 3 and 5, “[a] person commits assault who . . . [i]ntentionally or knowingly
causes physical contact with another and a reasonable person would regard the contact as
extremely offensive or provocative.” Id. § 39-13-101(a)(3) (2010).7

               The evidence considered in the light most favorable to the State established
that in 2013, when the victim was 9 or 10 years old, the defendant came into bedroom 1
where the victim was in bed and touched her inside her vagina with his hand. This evidence
sufficiently supports the defendant’s conviction of child rape as charged in Count 2. This
evidence also sufficiently supports the conviction of assault as charged in Counts 3 and 5.
As we discuss below, Count 3 must merge into Count 2, and Count 5 must merge into
Count 4.

                    C. Rape and Related Assault and Incest Convictions

               As charged in Counts 6 and 8, “[r]ape is unlawful sexual penetration of a
victim by the defendant or of the defendant by a victim” and “[f]orce or coercion is used
to accomplish the act.” T.C.A. § 39-13-503(a)(1). As charged in Count 9, “[a] person
commits incest who engages in sexual penetration as defined in § 39-13-501, with a person,
knowing the person to be, without regard to legitimacy . . . [t]he person’s . . . stepchild.”
Id. § 39-15-302(a)(1). Our Code defines “sexual penetration” as “sexual 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 . . . body.” Id. § 39-13-501(8).

              As relevant to the defendant’s conviction of the lesser included offense of
assault in Count 7, “[a] person commits assault who . . . [i]ntentionally or knowingly causes
physical contact with another and a reasonable person would regard the contact as
extremely offensive or provocative.” Id. § 39-13-101(a)(3) (2010).

              Taken in the light most favorable to the State, the evidence established that
in 2016, the defendant had the victim go to bedroom 3 and while she was in bed trying to

7
        The assault statute was amended several times during the span of dates at issue in this case;
however, the relevant subsection did not change. See T.C.A. § 39-13-101(a)(3) (2010), (Supp. 2013),
(Supp. 2016), (Supp. 2017).
                                                -17-
sleep, he entered the room wearing only his boxers and put his penis in the victim’s vagina.
This evidence is sufficient to support the defendant’s convictions in Counts 6 and 7. On
another occasion, in 2015 or later, the defendant came into bedroom 2 where the victim
was sleeping and placed his finger inside her vagina. The evidence also showed that the
defendant married the victim’s mother in 2017, becoming the victim’s stepfather. This
evidence sufficiently supports the defendant’s convictions of rape in Count 8 and incest in
Count 9.

                         D. Sexual Battery by an Authority Figure

                As charged in Count 10, “[s]exual battery by an authority figure is unlawful
sexual contact with a victim by the defendant” when “[t]he victim was, at the time of the
offense, thirteen (13) years of age or older but less than eighteen (18) years of age” and
“[t]he defendant had, at the time of the offense, parental . . . authority over the victim and
used the authority to accomplish the sexual contact.” T.C.A. § 39-13-527(a)(1), (3)(B).
“‘Sexual contact’ includes the intentional touching of the victim’s . . . intimate parts, or the
intentional touching of the clothing covering the immediate area of the victim’s . . . intimate
parts, if that intentional touching can be reasonably construed as being for the purpose of
sexual arousal or gratification . . . .” Id. § 39-13-501(6). “‘Intimate parts’ includes the
primary genital area . . . of a human being . . . .” Id. § 39-13-501(2) (2010).

              The evidence, taken in the light most favorable to the State, showed that the
defendant moved into the victim’s home in 2013 and had authority to instruct and discipline
the victim and her siblings. While living in the home, the defendant entered the victim’s
bedroom on an almost nightly basis until he moved out in late 2018 or early 2019, and
inserted a finger into her vagina. This evidence is sufficient to support a conviction for
sexual battery by an authority figure.

                                         III. Merger

              Another issue not raised by the parties but subject to plain error review is
whether the defendant’s convictions for assault by extremely offensive or provocative
contact as lesser included offenses of incest in Counts 3, 5, and 7 and the relative
convictions of rape of a child in Counts 2 and 4 and rape in Count 6 violate the principles
of double jeopardy. In supplemental briefing, the defendant argues, and the State concedes,
that the convictions violate the principles of double jeopardy. The defendant contends,
however, that the assault convictions should be dismissed, and the State argues that the
assault convictions should merge into the related convictions of rape of a child and rape.

              We need not tarry long over whether the defendant’s dual convictions in
                                             -18-
Counts 2 and 3, Counts 4 and 5, and Counts 6 and 7 violate the principles of double
jeopardy. The State concedes that they do, and it is well-established that assault by
extremely offensive or provocative contact is a lesser-included offense of rape of a child,
State v. Elkins, 

 (Tenn. 2002), and rape by force or coercion or without
consent, State v. Prentis Lee, No. W2015-01538-CCA-R3-CD, 

, at *25
(Tenn. Crim. App., Jackson, Nov. 23, 2016) (citations omitted). Here, the defendant’s
convictions for assault by extremely offensive or provocative contact in Counts 3, 5, and 7
arise from the same conduct giving rise to the convictions in Counts 2, 4, and 6
respectively. The proper remedy for dual convictions of which one is a lesser included
offense of the other is merger rather than dismissal of the lesser offense. See State v.
Davidson, 

 (Tenn. 2016) (“Merger is required when a jury returns
guilty verdicts on two offenses, one of which is a lesser-included offense of the other.”
(citation omitted)). Consequently, the defendant’s conviction in Count 3 must merge into
Count 2, Count 5 must merge into Count 4, and Count 7 must merge into Count 6. We
remand the case to the trial court for entry of corrected judgments in Counts 3, 5, and 7
reflecting the proper merger of convictions.

                                      IV. Other Errors

              We also note clerical errors in the judgments for the defendant’s assault
convictions in Counts 3, 5, and 7. This court “may at any time correct clerical mistakes in
judgments . . . arising from oversight or omission.” Tenn. R. Crim. P. 36. The defendant
was convicted of assault by physical contact that “a reasonable person would regard . . . as
extremely offensive or provocative,” T.C.A. § 39-13-101(a)(3), which is designated as a
Class B misdemeanor, id. § 39-13-101(b)(1)(C). The judgments for these convictions
misidentify the conviction as being assault by threat of bodily injury, which is a Class A
misdemeanor. Id. § 39-13-101(a)(2), -101(b)(1)(B). Not only do the judgments reflect the
incorrect subsection of the assault statute as the basis of the conviction, but the trial court
erred by imposing a sentence reserved for Class A misdemeanors. See id. § 40-35-
111(e)(1). Because the trial court imposed the maximum sentence available for a Class A
misdemeanor, we modify the sentences for Counts 3, 5, and 7 to six months’ incarceration,
the maximum sentence allowed for a Class B misdemeanor. See id. § 40-35-111(e)(2).

              Accordingly, the judgment of conviction in Count 1 is reversed, and the
underlying charge in that count is dismissed. The judgments of the trial court as to the
convictions in Counts 2, 3, 4, 5, 6, and 7 are affirmed, the defendant’s convictions in Counts
8, 9, and 10 are vacated and remanded for a new trial, and the case is remanded for entry
of corrected judgments reflecting the proper assault convictions and sentences and merger
in Counts 3, 5, and 7.


                                             -19-
       __________________________________
       JAMES CURWOOD WITT, JR., JUDGE




-20-