State of Tennessee v. Donald C. McCary

The defendant, Donald C. McCary, was convicted in two separate trials of two counts of aggravated sexual battery, one count of sexual battery, and four counts of statutory rape. There were two minor victims. The aggravated sexual battery convictions related to one victim and the remaining offenses were against the other. By consent of the state and the defendant, this court consolidated the two appeals during oral argument. The defendant claims (1) that the state failed to make a proper election of offenses at the close of the proof; (2) that there was a fatal variance between the indictments and the proof offered at both trials; (3) that the trial court erred by the admission of certain of the evidence; (4) that the trial court erred by denying his motion to suppress evidence seized during the search of his office; (5) that the trial court erred by refusing to suppress certain statements made during the search and after his arrest; (6) that the prosecutor's comments during closing argument were improper; (7) that the trial court erred by failing to declare the defendant incompetent to stand trial; (8) that the trial court erred by permitting amendment of the indictments; (9) that the cumulative effect of the errors denied him the right to a fair trial; and (10) that the trial judge should have recused himself from the hearing on the motions for new trial. The convictions on each count of aggravated sexual battery are affirmed. The remaining convictions are reversed and remanded for a new trial.