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    ´╗┐Appeals Court Reverses Donald McCary Conviction The Tennessee Court of Criminal Appeals has upheld the conviction of former youth pastor Donald McCrary in one trial and reversed another conviction. McCary had been given a 72 year prison sentence following a 1992 conviction on a variety of charges involving his involvement with boys while at Central Baptist Church of Hixson. The appeals court upheld one jury's findings, but in the second case said the state had not properly elected offenses to proceed on and that a prosecutor made improper statements to the jury. Here is the full opinion: IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE August 20, 2002 Session STATE OF TENNESSEE v. DONALD C. MCCARY Appeal from the Criminal Court for Hamilton County Nos. 190360, nike h town shirt 190361, 190523 190527 Buddy Perry, JudgeJanuary 10, 2003 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 nike quotes 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. Tenn. R. App. P. 3; Judgments of the Trial Court Affirmed in Part; Reversed and Remanded in Part GARY R. WEDEMEYER, JJ., joined. Howell G. Clements, Chattanooga, Tennessee (on appeal), and Donald C. McCary, pro se (at trial), for the appellant, Donald C. McCary. Paul G. Summers, Attorney General Reporter; Kathy D. Aslinger, Assistant Attorney General; Stan Lanzo, Special Prosecutor; and C. The trial court imposed an effective sentence of seventy two years' incarceration. See State v. 1996). Our supreme court reversed each of the convictions and remanded for a new trial, finding that the trial court improperly admitted evidence of prior uncharged sexual offenses in violation of Tennessee Rule of Evidence 404(b). Id. at 512 15. Our high court declared that the defendant's diary should have been excluded from evidence and warned that certain pornographic magazines and videotapes most likely should have been excluded as irrelevant. Id. Upon remand, the trial court granted the defendant's motion for a severance of the trials. The trial court also granted the defendant's request to act as his own attorney. This appeal involves two separate trials involving two of the victims. The first of the two trials took place in August 1997. In 1991, when Michael Ron Benefield was sixteen years old, he was a member of the youth choir at Central Baptist Church in Chattanooga, where the defendant served as youth choir director. Benefield, who was taking drum lessons at the church and often recorded his performances, noticed a micro cassette on a filing cabinet in the choir room. Believing that the cassette was one he had left nike shoes light up there at an earlier lesson, Benefield took the tape to his residence. When Benefield's mother, Joan Benefield listened to the tape, she passed along the information to her husband. Ms. Benefield, who described herself as "sickened" by the content of the tape, testified that she and her husband contacted Chief of Police Eugene McCutcheon, who was also a member of the church. Chief McCutcheon listened to the tape and then assigned two detectives to investigate. at his school. informed the detective that the defendant had shown him pornographic videos and magazines and had touched his penis. provided a recorded statement at the office of the district attorney. Based upon information obtained during that interview, Detective Rawlston obtained warrants to search the defendant's residence, vehicle, and office at Central Baptist Church. When officers arrived to execute the warrant at the church, the defendant left the church building, entered his car, and removed a red briefcase from the trunk. Officers confronted the defendant, who fled into the church. The officers followed and found the defendant hiding beneath some choir robes. Detective Rawlston again informed the defendant that he had a warrant to search his office and took possession of the red briefcase, which had been identified in the warrants as subject to seizure. The defendant led the officers to his office, where Detective Rawlston informed him of his Miranda rights and advised him that he was not under arrest. When Detective Rawlston asked the defendant how to open the briefcase, which had a combination lock, the defendant responded, "It's Ronnie's . None of it's mine. provided. Inside, the detective found several adult magazines and a number of "hardcore" pornographic movies. After closing the briefcase, Detective Rawlston found a full sized tape recorder on the defendant's desk. After being notified of the search warrant, Dr. Ron Phillips, pastor of the church, accompanied Detective Rawlston to the defendant's office, where the search was being conducted. Dr. Phillips immediately asked the defendant, "What's this all about?" The defendant responded, "It's all Ronnie's. It's all Ronnie's. None of it's mine." When Detective Rawlston asked the defendant where Ronnie was, the defendant answered that Ronnie had been in prison since 1990. Detective Rawlston, referring to a magazine he had taken out of the briefcase, then asked, "If Ronnie has been in prison since 1990, how did the December 1991 issue of Club magazine get into his briefcase?" The defendant then looked at Dr. Phillips and said, "Brother Ron . . . I'm sorry. I am so sorry." As the search continued, the defendant complained to Detective Rawlston that he did not understand what was happening. TBI testing established that one shirt contained no semen, a second contained several areas of semen, and the third shirt was approximately 90 percent saturated with the substance. in the defendant's office, some of which had typed messages on the back. The photographs were taken during church trips to Panama City and Fall Creek Falls and at various locations in Chattanooga. a television/VCR combination. At trial, Bruce Gentry, who worked for Zales Jewelry in 1991, testified that he had sold a diamond ring to the defendant for approximately $150. Gentry recalled that the ring had to be sized to fit the finger of the young man who had accompanied the defendant to the store.