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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE
May 13, 2003 Session STATE OF TENNESSEE v. KELVIN HOBSON
Appeal from the Criminal Court for Davidson County No. 2000-D-1999 J. Randall Wyatt, Jr., Judge

No. M2002-01462-CCA-R3-CD - Filed December 18, 2003

A Davidson County Criminal Court jury convicted the defendant, Kelvin Hobson, of two counts of aggravated sexual battery, a Class B felony, and the trial court sentenced him as a violent offender to concurrent ten-year sentences. The defendant appeals his convictions, claiming that (1) the evidence is insufficient; (2) the trial court improperly allowed the state to cross-examine him about prior bad acts; (3) the trial court improperly allowed state witnesses to give rebuttal testimony about his prior bad acts and his character for truthfulness; (4) the trial court improperly refused to give a curative instruction after the state shifted the burden of proof during closing argument; and (5) the trial court should have granted his new trial motion because the jury foreman mistakenly told other jurors during deliberations that the defendant would serve only probation for his aggravated sexual battery convictions. We conclude that the trial court committed reversible error by allowing state witnesses to testify on rebuttal about the defendant's prior bad acts and his character for truthfulness. Accordingly, we reverse the judgments of the trial court and remand the case for a new trial. Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Reversed, Case Remanded JOSEPH M. TIPTON, J., delivered the opinion of the court, in which DAVID H. WELLES and ALAN E. GLENN, JJ., joined. Glenn R. Funk and Cynthia M. Fort (on appeal), Nashville, Tennessee, for the appellant, Kelvin Hobson. Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Brian Keith Holmgren, Assistant District Attorney General, for the appellee, State of Tennessee. OPINION The defendant was charged with sexually abusing his girlfriend's niece and his girlfriend's two granddaughters. L. M., who was fifteen years old at the March 2002 trial, testified that Annie

Harvey was her aunt and that the defendant was Ms. Harvey's boyfriend. She said that the defendant lived with her aunt in Nashville and that she had known him since she was about five years old. She said that when she was about nine years old, she spent almost every weekend at Ms. Harvey's house and that her cousins K. H. and M. H. also spent nights there with her. She said she and her cousins would be alone with the defendant sometimes because her aunt was at work or asleep. She said that her aunt and the defendant owned a box of sex toys and that the defendant would rub the toys on her. She said that one of the toys was a vibrator and that the defendant would masturbate while L. M. rubbed herself with it. She said that the box also contained photographs of her aunt naked and that the defendant showed her the photographs. L. M. testified that the defendant would rub his penis against her genitals while her clothes were off but that he did not insert his penis into her vagina. She said that she would perform fellatio on him while he performed cunnilingus on her and that the defendant performed oral sex on her more than three times. She said that the defendant also stuck his fingers into her vagina once and that he touched her labia with his toe twice when she was about nine years old. She said that the defendant did not stick his toe inside of her but that he stuck the tip of his penis into her rectum. She said that the defendant also rubbed his penis on K. H. and M. H. and that he made them perform fellatio on him. She said that the four of them would watch pornographic videotapes together and that the defendant wanted to take photographs of her naked but that she refused. L. M. testified that the defendant gave her and her cousins gifts in order to keep them from revealing the abuse and that she did not tell anyone about the abuse because the defendant told her no one would believe her. She said that she was older than K. H. and M. H. and that she told them not to tell anyone because no one would believe them. She said that she never talked to the police but that she told a woman at school about the abuse when she was thirteen years old. She said that later, Kate Greer from the Department of Children's Services (DCS) talked to her. She said that Ms. Greer wanted her to wear a wire under her clothes and visit the defendant at work but that she refused. She said a doctor never examined her. On cross-examination, L. M. testified that she and her aunt had a close relationship and that her aunt liked for her to visit. She said that in addition to weekends, she also spent time at her aunt's home after school. She said that every time she was at Ms. Harvey's house, some type of sexual activity occurred with the defendant. She said that after she revealed the abuse, she continued to go to Ms. Harvey's house even though she was not supposed to go there. She said that she never asked her aunt if she could live at her aunt's house and that when she was twelve or thirteen, she stopped going to her aunt's house completely. She said that after she revealed the abuse, she was sent to Vanderbilt for counseling and a group home. She said that the defendant ejaculated often during the abuse and that he could ejaculate up to four times each night. K. H., who was eleven years old at the time of trial, testified that the defendant would touch her buttocks with his hand and his penis while her clothes were off. She said that the defendant performed cunnilingus on her and that he made her touch his penis with her mouth one time. She said that the defendant would touch her genitals with his penis and that his penis would go "in and -2-

out." She said L. M. saw the defendant do these things to her. She said that she saw the defendant touch M. H.'s buttocks and genitals with his hand and that she saw the defendant touch L. M.'s buttocks with his hand. She said that her grandmother, Annie Harvey, was always away from home when the abuse occurred and that the defendant never bought or gave her anything. She said she told her mother about the abuse. On cross-examination, K. H. acknowledged that she told the defendant's attorney no one had ever touched her. She also acknowledged being examined by a doctor but did not remember telling the doctor that no one had ever touched her genitals. She said she never saw the defendant ejaculate. On redirect examination, K. H. said she told the defendant's attorney that no one touched her because she was scared. She said L. M. never told her to say bad things about the defendant. Sue Ross, a pediatric nurse practitioner, testified that the DCS referred K. H. to her and that she examined the child. She said that K. H was nine years old at the time of the examination and that K. H.'s hymen had an unusual indentation. She said that although K. H. had "a very concerning exam," she could not say the indentation was caused by sexual abuse. She said that the indentation could have resulted from a penis or a finger coming into contact with K. H.'s genitalia or that it could have been the result of K. H.'s normal development. On cross-examination, she said that K. H.'s hymen was not torn and that she did not see any bruises, abrasions, or scars on K. H. She acknowledged that K. H. never indicated she had been touched inappropriately. M. H., who was nine years old at the time of trial, identified the defendant in court and testified that she knew him as "Bone." She said that she met Bone at Annie Harvey's house but that she did not know if he lived there. She acknowledged that she would spend the night at her grandmother's house and that L. M. and K. H. also spent the night there. She said that the defendant would touch her buttocks with his penis while both of them had their clothes on, that the defendant touched her "private part" over her clothes with his hand, and that he touched her private part with his mouth while her clothes were off. She also said she saw the defendant touch L. M. and K. H. She said the defendant never told her not to tell people about the abuse. On cross-examination, M. H. testified that she never saw the defendant's penis because his clothes were always on. Annie Mae Harvey testified that she had known the defendant all of her life and that they had a romantic relationship for about eleven years. She said that her niece and two granddaughters would spend the night at her house and that the defendant also would be there. She said that she kept a Polaroid instant camera and a box of sex toys in her bedroom but that the box was locked and she always had the key. She said that she and the defendant owned sexually explicit videotapes and that she was unaware of the children ever watching them. She said that the defendant took photographs of her naked with the instant camera, that she kept the photographs in the locked box, and that she never showed the photographs to the children. She said that after she learned the police were investigating the defendant, they stopped seeing each other. She said that their romantic relationship ended in 1998 or 1999 and that the defendant never spent the night at her house after that time. She said that at some point, the police asked to search her house but that she refused. She said that the

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police later returned with a search warrant, that she telephoned the defendant, and that the defendant arrived at her house during the search. On cross-examination, Ms. Harvey testified that she regularly spent money on L. M., that L. M. never showed any reluctance to stay at her house, and that L. M. asked to live with her in 1996 or 1997. She said that the defendant was living with her at the time and that she did not let L. M. live with them because she had to work and could not watch L. M. She acknowledged that L. M. wanted to "run around the neighborhood" but that she would not let her. She said that the defendant moved out of her house in 1997 but that they continued to see each other in 1998 and 1999 as friends. She said that the defendant would give her rides to work and run errands for her but that he never spent the night at her home. She said that she had custody of K. H. when K. H. was five to eleven years old and that after the defendant moved out, K. H. and M. H. moved in with her. On redirect examination, Ms. Harvey testified that she may have told the police when they searched her house in January 2000 that the defendant was her boyfriend. She said that sometimes when she went to bed, the defendant would stay up with the children. She said that she did not know of any conflicts L. M., K. H., or M. H. had with the defendant and that she did not know why they would falsely accuse him of sexually abusing them. She said that the girls never told her about the abuse and that the defendant never had the opportunity to abuse them in her home after he moved out in late 1997. She said, though, that sometimes when the defendant picked her up from work in 1998 and 1999, L. M. would be with him. Sheronda McNeal testified that she is Annie Harvey's niece and that she was twenty-one years old at the time of the trial. She said that on Labor Day 1999, she was at another aunt's house and that the defendant dropped off K. H. She said that K. H. was nervous and that K. H. told her the defendant had tried to make K. H. put her mouth on his penis earlier that day. She said that she took K. H. to K. H.'s mother and that K. H. told her mother about the abuse. She said that the next day, she went with K. H. to the police and reported the incident. Detective Kristin Vanderkooi Dyer of the Nashville Metropolitan Police Department testified that on August 20, 1999, she followed up on a DCS report that alleged L. M. had been sexually abused. She said that she and Kate Greer from the DCS met with L. M. and that L. M. was angry they had come to talk to her. She said L. M. was hostile, did not want to talk, and told them, "You're not going to be able to help me." She said that L. M. calmed down but that L. M. still would not talk to them about the abuse. She said L. M. was worried about Annie Harvey and the fact that L. M. had not been honest with L. M.'s mother about the situation. She said that she and Ms. Greer met with L. M. again on September 22, that L. M. gave them details about the abuse, and that L. M. indicated K. H. and M. H. also had been abused. She said that at some point, she learned K. H. had complained to the police about the defendant on September 7, 1999. She said that in October 1999, she and Ms. Greer spoke with M. H., who told them that the defendant began sexually abusing her when she was six years old and had continued to abuse her until the summer of 1999.

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Detective Dyer testified that she went to Annie Harvey's house on December 6, 1999, and talked with Ms. Harvey about the children's allegations. She said that she asked to look around the house but that Ms. Harvey refused. She said that she did not know if the defendant was living with Ms. Harvey at that time but that Ms. Harvey did not want her going through the defendant's personal property. She said that in January 2000, she executed a search warrant at Ms. Harvey's house and that the defendant arrived during the search. She said that she was looking for a box of sex toys, a video camera on a tripod, and photographs of children. She said that she found the box of sex toys, the video camera, and the tripod. She said that Annie Harvey was not cooperative with the police investigation and that Ms. Harvey was protective of the defendant. On cross-examination, Detective Dyer testified that she did not know when L. M.'s abuse was reported but that it could have been one year before Detective Dyer interviewed L. M. She acknowledged that she asked L. M. to wear a body wire and record a conversation with the defendant. She said that L. M. agreed to wear the wire but that due to scheduling problems, they never got around to it. She acknowledged that pedophiles almost always collect child pornography and that she never found child pornography in the defendant's possession. Beverly Yoakley Hobson, the defendant's wife, testified that she met and started dating the defendant in September 1997. She said that near the end of 1997, the defendant moved in with her. She said that the defendant worked weekdays from 7:00 a.m. until 6:30 p.m. and that they spent most weekends together. She said that she worked from 7:00 p.m. to 7:00 a.m. three days per week and that she did not know what the defendant did while she was working. She said she became aware of the allegations against the defendant when a police officer telephoned her around Labor Day 1999. She said that the officer asked where the defendant had been on Labor Day and that she told him the defendant had been with her. She said that she married the defendant on July 29, 2000, that she knew the defendant well, that they were close, and that the defendant was honest. On cross-examination, Mrs. Hobson testified that when she and the defendant started dating, the defendant was still living with Annie Harvey but that he did not live with Ms. Harvey all the time. She said that after the defendant moved out of Ms. Harvey's house, the defendant and Ms. Harvey remained friends but that she did not know if they remained romantically involved. She acknowledged telling a police detective in September 1999 that the defendant sometimes spent the night at Ms. Harvey's house. She also acknowledged that although she knew the defendant did not have access to the children during some of the alleged abuse, she never came forward with that information. She said Sheronda McNeal was lying when Ms. McNeal testified that the defendant dropped off K. H. on Labor Day 1999. The defendant testified that he was fifty years old and that he moved in with Annie Harvey in 1984. He said that in 1997, Ms. Harvey moved out of their home and went to live with one of Ms. Harvey's daughters for three or four months. He said that about that time, he met Beverly Yoakley. He said that he moved into Ms. Yoakley's home in Columbia, Tennessee in November 1997 and never spent another night in Nashville. He said that after he moved to Columbia, Ms. Harvey moved

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back into her house. He said that from the end of 1997 until 1999, he would take Ms. Harvey to work sometimes but that he never spent the night with her. The defendant testified that he knew L. M., K. H., and M. H. but that he was never in charge of looking after them. He said that he never had a sexual attraction to the girls and that he never molested or had sex with them. Regarding the state's witnesses, he said that it was "just nerveracking to hear this from all of these people coming in, some of them I don't even know." He said he bought L. M. tennis shoes once because her old shoes were worn out. He said that L. M. came to Ms. Harvey's house sometimes but that she did not visit when he was the only person present. He said that L. M. also spent some weekends with Ms. Harvey but that he did not stay at Ms. Harvey's house when L. M. was there. He said that at some point, L. M. asked to move in with Ms. Harvey but that he did not want L. M. living with them. He said L. M. was disrespectful and cursed him because he would not let her out of the house late at night. He said there was never a time when he and L. M. were awake alone at night. The defendant testified that he never touched L. M. in a sexual way and that he had not seen her since 1996. He said that once in 1996, he and L. M. picked up Ms. Harvey from work. He said that did not happen in 1998 or 1999 as Ms. Harvey had testified. He said that K. H. and M. H. also spent nights at Ms. Harvey's house but that he never touched them. He said that he learned about K. H.'s Labor Day allegations when a detective contacted him at work and that he told the detective he had been with Beverly Yoakley on Labor Day. On cross-examination, the defendant testified that he did not know why the children had made up the sexual abuse allegations. He said that everything L. M. said was false, that the sexually explicit videotapes and box of sex toys belonged to Annie Harvey, that he had never seen a photograph of Ms. Harvey naked, and that Ms. Harvey was lying when she testified the defendant would stay up at night alone with the children. He said that he and Ms. Harvey were still good friends, that they had a fourteen-year-old daughter together, and that he did not know why Ms. Harvey lied during her testimony. He denied telling a detective in September 1999 that he was living at three residences, including Ms. Yoakley's and Ms. Harvey's homes. However, he acknowledged telling the detective that he did not "play around with kids." He said that after he moved in with Ms. Yoakley, he did not tell her that he continued to have contact with Ms. Harvey. The defendant acknowledged that Mary Harvey, Annie Harvey's daughter, had accused him of having sexual intercourse with her when she was a juvenile. He said, though, that he never had sex with Mary Harvey. He also acknowledged knowing Sheria Waters, Annie Harvey's niece, and denied having sexual contact with her when she was a juvenile. Finally, he said that he had never offered to pay Sheronda McNeal or Sabrina McNeal, Annie Harvey's nieces, for sex when they were juveniles. Steven Morgan Vaughn, the Vice President of Levy Wrecking Company, testified that the defendant worked for him and that he had known the defendant for about fifteen years. He said the defendant was a good employee, was truthful, and had an honest reputation. On cross-examination, -6-

he said he did not know the defendant was on trial for having sexually abused three girls. On redirect examination, he said he had never asked the defendant about the charges. On rebuttal, the state recalled Sheronda McNeal, who testified that the defendant was lying when he said he did not have a sexual interest in children and that the defendant was living at Annie Harvey's house in 1998 and early 1999. Mary Harvey, Annie Harvey's daughter and K. H.'s mother, also testified on rebuttal. She said that she had known the defendant for about fifteen years and that when she was fourteen or fifteen years old, she and the defendant performed oral sex on each other about four times and had sexual intercourse. She said the defendant also took photographs of her naked with an instant camera. She said the defendant told her that if she told her mother, her mother would not believe her. On cross-examination, Ms. Harvey testified that she told her mother about having sex with the defendant and that her mother was mad and took her to a doctor. She acknowledged that the doctor examined her and that he concluded she had not had sexual intercourse. She said that the doctor was right and that she had lied to her mother about the defendant sexually abusing her. She said, though, that after she saw the doctor, she and the defendant began having sex. She acknowledged meeting with the defendant's attorney one year before trial and three months before trial and telling him both times that she and the defendant never had sex. She said she lied to the attorney because she did not want to talk about having sex with the defendant and because she had thought she had done something wrong. She acknowledged that she loved K. H. and said that she had to give up custody of her daughter in 1995. She said that although Annie Harvey had temporary custody of K. H., K. H. continued to live with her. She said K. H. only went to Annie Harvey's house when Annie Harvey was supposed to be there. The defendant had been charged with six counts of child rape against L. M., two counts of aggravated sexual battery against L. M., three counts of child rape against K. H., and two counts of aggravated sexual battery against M. H. The jury found him guilty of the lesser included offense of aggravated sexual battery regarding two child rapes against L. M. Those two child rape charges respectively alleged that the defendant had penetrated L. M.'s labia with his foot and that he had penetrated her vagina with his fingers between July 1, 1995, and July 1, 1999. The jury acquitted the defendant of the remaining charges. I. SUFFICIENCY OF THE EVIDENCE The defendant claims that the evidence is insufficient to support his convictions because L. M.'s, K. H.'s, and M. H.'s testimony was incredible and because K. H.'s and M. H.'s testimony contradicted L. M.'s testimony. In addition, he argues that L. M.'s testimony was "more than suspect" because she voluntarily stayed at Annie Harvey's house for years despite the fact that the defendant sexually abused her during every visit and because she "described a man of extraordinary sexual ability." The state claims the evidence is sufficient. We agree with the state.

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Our standard of review when the defendant questions the sufficiency of the evidence on appeal is "whether, after viewing the evidence 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." Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). We do not reweigh the evidence but presume that the jury has resolved all conflicts in the testimony and drawn all reasonable inferences from the evidence in favor of the state. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions about witness credibility were resolved by the jury. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). The jury found the defendant guilty of the lesser included offense of aggravated sexual battery as to counts five and six, child rape against L. M. The elements of aggravated sexual battery relevant to this case are unlawful sexual contact with a victim less than thirteen years of age. T.C.A.

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