State of Tennessee v. Matthew Kirk McWhorter

A Montgomery County jury convicted the Defendant, Matthew Kirk McWhorter, of three counts of aggravated sexual battery, and the trial court imposed an eight-year sentence for each conviction, to be served consecutively. On appeal, the Defendant contends that: (1) insufficient evidence exists in the record to support his convictions; (2) the trial court erred by not requiring the State to elect the offenses it wished to submit to the jury; (3) the trial court improperly admitted a law enforcement officer's testimony about the Defendant's uncharged conduct; (4) the trial court erred by permitting a law enforcement agent to testify about a recorded recollection; (5) the trial court erred by denying the Defendant's motion to prohibit testimony of the victim; (6) reversible error occurred when the State failed to disclose, preserve and turn over a law enforcement official's notes made during the Defendant's initial interrogation; (7) the trial court erred by allowing the State to submit an insufficient Bill of Particulars and to deviate from its Bill of Particulars; (8) the trial court erred in denying the Defendant's motion to suppress his written and oral statements made to law enforcement officials in Florida; (9) the trial court erred by failing to instruct the jury on child abuse as a lesser-included offense; (10) the State's closing arguments were so improper that they infected the trial with unfairness and denied the Defendant due process; (11) the trial court erred by interrupting the natural flow of jury deliberations to give supplemental instructions; and (12) the trial court erred in ordering the Defendant to serve his sentences consecutively. After thoroughly reviewing the record, we conclude that the trial court erred by failing to require the State to elect which incident of sexual touching the State intended for the jury to consider for Count 1, aggravated sexual battery. Accordingly, we reverse the conviction and the sentence in Count 1. We affirm the remaining convictions and sentences.