OPINION
James Brown appeals from his conviction for committing aggravated sexual battery on a six-year-old girl. He was sentenced to serve thirty (30) years in the penitentiary. He raises four (4) issues for reversal on this appeal:
(1) The trial court refused to grant a defense motion for a bill of particulars.
(2) He was prejudiced by the State’s refusal to produce material evidence discoverable in accordance with Tenn.R. Crim.P. 16(a)(1)(A).
(3) The trial court admitted testimony of a Tennessee Department of Human Services employee regarding the sexual tendencies of a sexually abused child.
(4) The trial court refused to require the State to elect the particular offense upon which it relied for conviction.
The Court of Criminal Appeals considered each of the issues raised here and found error on each of them except the matter of election of offenses by the prosecutor. They found the errors to be harmless or matters of minimal prejudice not warranting reversal. Their analysis of the election issue was that the proof made out only one criminal offense and for that reason the trial court did not err in failing to require an election. We disagree with that conclusion reached by the Court of Criminal Appeals and reverse the judgment below.
On the election issue defendant ar-. gues that the State put on proof of three separate offenses. The first, when the defendant purportedly kissed the child while she, her mother and he were in her mother’s apartment. On two other occasions it is said they offered proof he allegedly touched her genital area with his penis. On one of these the proof showed he actually effected penetration. We find, after several readings of the child’s testimony, that she was referring to two separate incidents. The first when they, all three, were in the bed, nude, at night. The second incident was the following morning when defendant and the child’s mother took her into a bedroom and the defendant “stick[ed] his wrong spot in mine.” The child’s testimony was hesitant and she was obviously reluctant to discuss the circumstances of the separate events. In her confusion she mentioned other incidents, which may or may not have occurred. We are satisfied the State proved only two offenses.
As the Court of Criminal Appeals opinion reported the second event, “she demonstrated on anatomically correct dolls what parts of the body constitute ‘wrong spot,’ and although the record does not specify what body parts were involved, a fair reading indicates that the child was referring to her genitals and those of the defendant. She testified that he continued this sexual contact until she told him, ‘its hurting.’ At that point, she said, she dressed and went back into the living room to watch television.” The Court of Criminal Appeals rationalized, “... the jury could not reasonably have found that the defendant’s conduct in merely kissing the victim, even while both of them were nude and in close physical proximity, was a violation of the statute defining aggravated sexual battery.” Hence, ... “the charge would have been subject to dismissal at the conclusion of the proof upon motion for judgment of acquittal under Tenn.R.Crim.P. 29(a), because there was ‘insufficient evidence to sustain a conviction of such offense.’ ”
The problem we find with this rationalization is that the District Attorney General representing the State asked the child specifically if she remembered anything happening in the bed. The child responded, “when my mother was getting these pads, I don’t know what they’re for, then James was kissing me.” He had her demonstrate the kissing incident by the use of anatomically correct dolls commonly used for such purposes. He also had her use the dolls to describe the incident which occurred the following morning when she said he penetrated her until it hurt.
Defense counsel subpoenaed the entire file of the Department of Human Services involving the parties. The trial court ordered this file to be included in the record for appeal purposes. That file contains the case worker’s notes on an interview with the child on 31 December 1984 when she first reported the assault made on her by the defendant. On the occasion when he purportedly was kissing her she related, in childish language, “me, James and Mom were in the bed. Mom was where you aren’t supposed to be.” James “made me sit on his mouth,” “he was licking me where I do do.” The child demonstrated for the social worker, using dolls to indicate the positions of each of them. She laid the doll named James down on his back and put the doll simulating the child sitting
It was obvious that the child described and demonstrated two separate instances of aggravated sexual battery. It is equally obvious that the State’s attorney argued two separate instances of aggravated sexual battery. The defense moved the court to require the State to elect which of the two incidents that the State allegedly claimed had occurred. The trial judge overruled the motion.
In an unbroken line of cases extending back many years the law has been clear that an exception is made in cases of this nature to the general rule that evidence of offenses other than that for which the defendant is on trial cannot be introduced against him. The great weight of authority is in favor of the admissibility of prior acts in sex cases. See
Sykes v. State,
The Court of Criminal Appeals found error in each of the other three issues raised in this Court but did not consider them to warrant reversal. In the event of retrial these remaining matters can be resolved. A bill of particulars is no longer required. The defendant has been fully apprised of all the facts surrounding the time, place and circumstances of the offense with which he is charged. In reference to the claim of prejudice for failure to respond to a discovery motion, as the inter
The judgment below is reversed and the case remanded to the trial court for further proceedings. Costs of this appeal are taxed against the State.