### IN THE CO URT OF CR IMINAL APPEALS OF T ENN ESSEE AT NASHVILL E Ass ig ne d o n B rie fs May 13, 2 00 9

STATE OF TENNESS EE v . ROGER GL ENN DILE

Direc t Appeal from the Cr im inal Cou rt for Davidson Coun ty No. 2006-C- 2490 Cheryl A. Blackburn, Ju dge

No. M2008- 00389-CCA -R3-C D - F iled Septem ber 24, 2009

A Davidson County jury convicted the Def endant, Rog er G lenn Dile, of r ape of a child, a Class A felony ; attempted rape of a c hild, a Class B fe lony ; and two counts of a g g ravated sexual battery , a Class B felony

. The trial court i m p o s ed a total eff ective sentence of t hirty -two y ear s to be served
at 100% as a child rapist. The Def endant appea ls, contending : (1) the evidenc e, as a matter of law,

wa s insufficient to support his convictions beca use the proof at trial fata lly varie d from h i s indictments; (2) the tri al co u rt er re d when it failed to merg e one of his ag g ravated sexual battery convictions into his rape of a child conviction; and (3) the trial court err ed when it set the leng th and alig nment of his sentenc es. After a thoroug h revie w of the rec ord and rele vant authorities, we aff irm the judg ments of the trial c ourt.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nts of

the Cr im inal Cou rt A ff irm ed

R O B E R T W. W E D E M E Y E R , J
., delivere d the opinion of the court, in wh i ch D A V I D H. W E L L E S and A L A N E. G L E N N , J J ., joined.

J . Michae l Eng le (a t trial), Nashvill e, Tennessee
, and J eff rey A. DeVasher (on appe al), Na shville, Tenne ssee, f

or the Appe llant, Roge r Glenn D ile.

Robert E. Cooper, J r., Attorney Gene ral and Reporter ; Michae l E. Moore, Solicitor Gene ral; L eslie E. Price, Assistant A ttorney Gene ral; Victor S. Johnson, I I I
, District Attorney Gene ral; J .W. Hupp Assistant District Attorney Gene ral, for

the Appellee , the State of Te nnessee

.

OP INION

I. F acts

A. Indi ctm ent

I n September 2006, a Davidson County gra n d j u ry issued an indictment char g ing that the Def endant “on a date betwee n April, 2005 and May
, 2005,” committed two counts of rape of a child,one count of attempted rape of a ch i l d
, o n e co u n t of agg ravated s exual battery
, and two counts of

providing pornog raphy to a minor. After the trial court deter mined t h at t he counts char g ing the Def endant with providing pornog raphy to a mi nor were filed outside of t he applicable li mita t i o n s period, those counts wer e remove d from the indictment. The four remaining counts of the indictment remaine d unchang ed.

During a pre- trial hear ing, the State informed the trial court and defe nse counsel that the date of the char g ed offe nses may have been ear lier than the date set out in the indictment. The State said the indictment was based on information g ather ed by the Depa rtment of Children’s Service s, which had interviewe d the victim’s mother but not the victim. Acc ording to the State, the victim’s mother, Sandy Delk, was not a reliable witness and, as a result, would not be relied upon at trial to establish the date of t h e co n d u ct. Fur ther, all adult witnesses likely to know rele vant dates wer e uncooper ative. The victim, who was seven at the time of the offe nses, rec alled only that the offe nses

occur red in two differ ent houses, located on Oneida Street and Marsha ll Street. The victim did not know the date s on which she moved into either house. She could rec all only that she lived brief ly in the Oneida Stre et house a nd for six weeks to two months in t he Mar shall Street house.

The State explained that, due to the victim’s uncer tainty and t h e l ac k of a reliable adult witness, the proof showed only that the various instances of conduct occurr ed betwe en Decembe r 2004 and April 2005. As a result, the State would be unable to prove that the off en s es occur

red specific al l y b et we en April and May of 2005, as the indictment alleg ed. I n order to g ive defe nse counsel adequa

te time to prepa

re for the State’s proof that the alleg ed conduct occur red betwee n Dec ember 2004 and May 2005, t h e t ri al court continued the Def endant’ s trial for six months. Ultimately
, the trial took place in September 2007, nine months afte r the pre- trial hear ing. The State did not amend the indictments ag ainst the Def endant to re flec t an ea

rlier of fense date.

B. Jury Trial

At trial, the State pre sented the f ollowing proof: K.D., who was nine y ear s old at the time 1 of trial, testified she lived with her pater nal g randmother
, her six -y ear -old sister, and her three -y ear

o l d b ro t her at the time of trial. K.D. said she no longe r saw her mother, Sandy Delk, wi t h an y fre quency

.
Up o n being shown a picture of a house on Oneida Street, K.D. said she l ived i n the ho u s e with her materna l g randmother
, whose marrie d name is Debbie Delk Dile (her einaf ter ref err ed to as “Dile” ); the Def

endant, who was her g randmother ’s boy friend and is now her husband; and her baby cousin “B ry ant.” Upon being shown a picture of a house on Marsha ll Street, she identified it as the h o u se where she was stay ing when poli ce interviewe d her on May 15, 2005, about t h e co n d u ct at issue. She said th at , at the time, her y oung er brother, mother, and y oung er sister lived at the Marsha l l S t re et house. She said her g randmother and the Def endant lived at the Marsha ll Street h o u s e “h al f the time.” She testified she beg an stay ing at the Marsha ll Street house only shortly

G i v e n t h e n a t u r e o f t h e c r i m e s , w e w i l l r e f e r t o t h e v i c t i m b y h e r i n i t i a l s t o p r o t e c t h e r p r i v a c y

. 1

2befor e the May 15 interview. She s ai d t hat, afte r the May 15 interview, she never lived with her

g randmother

and the De fenda

nt ag ain.

Reca lling the period in which she lived in the Oneida Street house with Dile and the Def endant, she said the Def

endant took car e of her when her g randmother
, Dile, went to work. The first incident of “sec ret” activity betwee n herse lf and the Def endant occur

red when Dile was working and the Def

endant was watching K.D. K.D., fully clothed, went into Dile’ s room to retrie ve a pair of pants. Whil e there
, the Def endant enter ed and told her to g et on the bed. The d ef en d an t t h en

remove d K.D.’s pants and underw ear , and beg an to “lick” K.D.’s “priva te,” while he moved his hand in and out of her vag ina and a round her anus. The D efe ndant instructed K.D . to tell no one of the sexual contact. K.D. sa id other “se cre t” conduc t followed this first contac t.

K.D. testified that, while she was bathing in a bath tub at the Oneida house, the Def endant, alre ady undresse d, enter ed the bathroom, l o we re d h i mself into the bath tub, and beg an to wash K.D.’s vag ina using his hand and a rag. S h e t es t i fi ed that, while they wer e in the bath tub, the De fe n dant place d his hand both inside and outside her vag ina, and he rubbed her brea sts. S h e testified that she was old e noug h to bathe her self and tha t she had not aske d the Def endant to he lp her ba the.

K.D. next testified that, during the Spring, while she still lived in the Oneida house, she and the Def endant dropped off Dile at a tanning salon. The Def endant and K.D. waited in the cab of the Def endant’ s El Camino truck while Dile tanned. After sever al minutes, the Def endant unzipped his pants and place d his penis in K.D.’s view. The Def endant then pushed K.D.’s head toward his penis, instructing her to “suck it.” K.D. ref used, but the Def

endant continued to urg e her to proce ed. After

a few minutes of his reque sts, K.D. told the Def endant she would scre am if he continued to push her head toward his penis. At that point, Dile emer g ed from the t an n i n g s alon, and the Def endant

rea ssembled himself befor e she rea ched the truck. The Def endant instructed K.D. ag ain to not tell
any one wha

t he aske d her to do.

K.D. rec alled that, at some point, she beg an stay ing at the Marsha ll house, and on the third day she stay ed at the Marsha ll house, her family beg an loading a U-Ha ul truck in order to move some family members into a newly rente d home. On this day
, K.D. told a rela tive she identified as “Aunt Kim” about the Def

endant’ s behavior

. After this, Detec tive Keith Sutherland came to the Marsha ll house and interviewe d K.D. K.D. did not tell Dile direc tly about the Def endant’ s conduct until afte r

s he was remove d from the Marsha ll home. Acc ording to K.D., howeve r, Dile “did not want t o believe” her a

nd admonished her

to “stop telling stories.”

On cross-examination, K.D. ex plained she moved in with Dile and the Def endant because

a judge deter

mined Dile and K.D.’s mother should share custody of K.D. She said the Def endant’ s conduct occur

red during Spring, at various times of the day and night. She explained she ordinarily would have been attending school during this time, but Dile failed to enroll K.D. in school when she beg an living with Dile. K.D. said her brother’ s first birthday
, which fell on April 15, 2005, occur red in the middle of the per iod during which the De fenda nt abused he r.

3K.D. estimated she, the Def endant, and Dile moved from the Oneida house to the house on Marsha ll Street approx imately three wee ks afte r t he Defenda nt beg an making sex ual contact with her. On the third day she liv ed at t h e house on Marsha ll Street, she told her aunt about the Def endant’ s behavior

. K.D. confirme d that the Depa rtment of Child Service s (“D CS”) remove d her from the Marsha ll house on the same day she told her aunt abou t t h e Defendant’s conduct. As a result, s he never moved back in with the Defe ndant and Dile. She said she di d not see Dile ag ain until Dile’s wedding to the Def endant and, on that occa sion, she spoke direc tly with Dile about the Def endant’ s conduct for the first time. K.D. said no one else was prese nt during her discussion with Dile. She testified she did not know anyone named “Cry stal Gay le L indsley ” and did not reme mber
any one by

that name be ing pr esent a t Dile and the De fenda

nt’s wedding

.

K.D. confirme d she had a videotaped conver sation with Dawn Har per, a fore nsic interviewe r with the Child Advoca cy Center. De fense counsel asked K.D. whether she reme mbere d making

sever al statements from the conver sation with Dawn Har per. K.D. rec alled telling Har per about the Def endant asking her t o s u ck his penis in his truck outside the tanning salon. She also rec alled telling Ha rper that a sec ond incident betwe en her self and the Def endant occurr ed, though she wa s not sure exactly what she told Har per had occur

red. She said that, while she and her sister wer e still living at the Oneida house, she and the Def endant lay in bed watching “The Proudest Family ” on the Disney Channel. She testified that, while the y lay toge ther, the Defe ndant “touche d” her in a way she could not specific ally rec all. Her sister, who had been in the kitchen, walked into the room and asked K .D. what the D efe ndant was doing , to which K.D. r eplied that she did not know.

K.D. did no t remember telling Har per that the Def

endant had told her to “suck” his penis while they lay wa t ch i n g t h e Di sney Channel. She also did not rec all say ing her sister told their mother she had seen the Def endant touch K.D. Simi larly
, she did not rec all telling Har per her sister then told her mother, w ho told her fathe r, who then assaulted the Def endant. She testified she did
not tell her mother about the Def endant’ s conduct befor e police interviewe d K.D. on May 15, 2005.

On re-direc t examination, K.D. testi fied that neither he r mother nor her f ather was present in the Oneida house the day the Def endant touched her while they lay watching the Disney Channel. She rec alled descr ibing the Def endant’ s penis as “pink” when she was telling Har p er ab o u t the Def endant asking her to pe rfor m oral sex in his truck outside the tanning salon. K.D. testified he r fathe r never “ca

me around.” She denied both wishing she had told her mother about the abuse and wishing he r fa ther ha d beate n up the Def endant.

Detec tive Keith Sutherland testified that, at the time of the conduct at issue, he was assig ned
to the Sex Crime Section of the Metropolitan Nashville Police Depa rtment

. On M ay 15, 2005, Detec tive Sutherland was dispatched to the Marsha ll Street house to investigate a repor t of a sexual assault. When he arr ived, he found the Def endant, an unidentified adult male, and an unidentified male child loading furniture onto a U-Ha ul truck. He approa ched the house and introduced himself
to sever al members of K. D. ’s family
, including K.D.’s mother, Sandy Delk. K.D. then led the detec tive up a flig ht of stairs to the second floor of the home. As they asce nded, the detec tive asked K.D. whe ther she w anted to shar e something with him, to which she replied, “ He’ s been touc hing

4me all over my body .” She identified the man who touched her as “P epa,” her materna l

g randmother ’s boy friend, whom her g randmother later ma rried.

Detec tive Sutherland descr ibed K.D. as a “quie t , s h y ch ild” who had “no issue” speaking with him about the Def

endant’ s behavior

. Be cause he had not r ece ived training to inter view child

sex abus e v i cti ms, he contac ted DCS who dispatched a repr esenta tive to interview K.D. Also, beca use Sex C rime policy

was to f oreg o a fore nsic phy sical examination if seve nty -two hours ha d passed since the sexual assault occur red, he did not seek a me dical exam of K.D.

Whil e at the Marsha ll Street house, ref ere nce was made to an “Aunt Kim,” but no one could supply the detec tive with an addre ss or contac t information for “Aunt Kim.” I n the day s following his May 15, 2005, visit to the Mar s hall Street home, the detec tive continued his investigation of K.D.’s abuse alleg ations. He visited the Oneida home and the tanning salon, and he tried, without

succe ss, to locate and inter view K.D.’ s mother.

The detec tive said he watche d throug h a video monitor while Har per interviewe d K.D. He testified that, during the interview , K.D. re called a n incident during which the Def endant sexually penetr ated her while she lay on the upper bunk of a bunk bed in her room. Acc ording to the detec tive, K.D. said her sister, having witnessed the Def endant penetr ate her, aler ted their pare nts, and K.D ’s fa t her then assaulted the Def endant. The detective ag ree d this confr ontation could not have oc cure d beca

use K.D.’ s father

was inca rce rate d during the time period of a lleg ed abuse

.

Sue Wil liams Bur field testified she was the supervisor of DCS field i n v es t i gator J essica J ones Montgome ry , who responde d to Detec tive Sutherland’s repor t of child sex abuse on May 15, 2005. Bur field explained that Montgome ry no longe r worke d with DCS. After meeting with K.D.
at t he Marshall Street residence
, Montgome ry drew up a “safety plan,” which Bur field approved. Under the safe ty

plan, K.D. wa s to live with her mother.

Be cause the safe ty plan was to e x pire in June 2005, Bur field and fellow DCS investig ators attempted to contac t K.D.’s mother in order to re- issue the safe ty plan. Un ab l e to contac t K.D.’s mother, on J uly 5, 2005, a DCS investigator called the home of a rela tive and was advised that Delk,
at some point, had dropped K.D. and her siblings off at the rela tive’s home. The rela tives also did not know how to rea ch K.D.’ s mother, so Bur field removed t he children from the rela tive’s hom e

on J uly 5, 2005. Bur field then contac ted Dile to disc uss the children’ s custodial arr ang ement, and Dile reque sted custody of K.D. When Bur field exp l ai n ed she could not have custody of K.D. beca use she lived with the Def

endant, who was acc used of abusing K.D., Dile insisted the Def endant had done nothing to K.D. Dile declined to ask the Def endant to leave in order for K.D. to be allowed
to live in her home. Ultimately
, unable to locate Delk, t he S tate took custody o f t h e ch i l d re n and place d them in the home of a nother re lative.

Bu rf i el d confirme d that a pag e of a handwr itten notes, introduced into evidenc e for identification only
, wer e notes she took while in the field investiga ting K.D.’s abuse alleg ations. The
notes state that Delk had threa tened she would “beat K.D. up” if she did not say “ce rtain things” to police. B urfield sa id the notes wer e base d on a stateme nt from K.D.

5Bur field next confirme d she was the author of a series of elec tronic notes about K.D.’s case

contained in a print-out prese nted in court. She confirme d the notes ref lected that K. D. t old Montgome ry that the Def endant had urg ed her to perf orm fellatio o n h i m , t h o u g h K.D. did not appea r to say when or wher e he ha d done so.

On re- direc t examination, Bur field confirmed DCS had investigated sever al complaints involving Delk family members befor e it rec eived information about the Def endant’ s behavior

. One of these complaints was base d on K.D’s sustaining a head injury afte r her mother alleg edly hit he r in the head with a g lass beer mug. The DCS investiga tion into the phy sical abuse alleg ation ag ainst Delk was ong oing whi l e DC S investigated the subsequent alleg ation of sexual abuse ag ainst the Def endant.

At the close of the State’s proof, the trial court g rante d the Def endant’ s motion for judgme nt

o f acquittal as to the char g e of rape of a child in COUNT 2, and it submitt ed the lesser- included offe nse of attempted rape of a child, as well as appropr iate lesser- included offe nses of attempted rape of a c hild, for the jury ’s consider ation in COUNT 2.

The Def endant prese nted the following proof: Cry stal Gay le L indsl ey , t h e Def

endant’ s twenty -eig ht y ear old daug hter, testified s h e s aw K. D. three to four tim es a wee k during May and April 2 0 0 5

. According to L indsley
, the Def endant sold his El Camino truck befor e investiga tors

arr ived at the Marsha ll residenc e on May 15, 2005. L indsley did not re call, howeve r, how long befor e May

15 the Def

endant sold the truc k.

L indsley testified she witnessed K.D.’s mother tell K.D. she would “beat the [ex pletive] out of” K.D. if she did not tell investiga tors the Def

endant sexually assaulted her. She said K.D. called her “Aunt Kim.” L indsley also testified that, at Dile and the Def endant’ s wedding
, K.D. said to her, “Papa didn’t do this to me

. . . I had to te ll the social work and police and ever y body that he did so I wouldn’t g et . . . bea t up.”

On cross-e x amination, L indsley testified she loved her fathe r, did not want any thing bad to happen to him, and did not believe he sexually assaulted K.D. She insisted K.D. knew her as “Aunt Kim,” and c alled her

by that name.

Debr a Delk Dile, K.D.’s grandmother
, testified she was eng ag ed to the Def endant during May 2005, and she marrie d him around J uly 27, 2005, six wee ks afte r office rs beg an investiga ting him for sexually abusing K.D. She rec alled that, in ear ly 2005, K.D. visited her and beg g ed her not to make her return to her mother’s home. K.D. explaine d t o Di le that her mother had hit her and thrown her by her hair. Dile t hen filed a petiti on in Dav i d s on County J uvenile C ourt alleg ing her daug hter had phy sically abused K.D. Dile said that, althoug h her rela tionship with her daug hter had alway s been stra ined, it worsene d afte r she f iled the petition ag ainst her da ug hter. Af

ter a hear ing

on the petition, the juvenile court order ed K.D. to stay with Dile during the wee k and her mother on the wee kends. She rec ounted that K.D. was to return to Dile’s custody the day investigators arr ived at the Mar shall residenc e.

6Dile testified the Def endant trade d his El Camino truck for a van two months afte r they beg an dating
, which was “wa

y befor e” April and May 2005. She rec alled that she, K.D., K.D’s sister, the Def endant, the Def

endant’ s adult daug hter, and Delk u s ed t o go to the tanning salon “as a family thing.” She insisted, howeve r, that the Def endant and K.D. wer e never left alone while she tanned.

Dile testified she lived for two and a half y ear s at the Oneida home befor e she beg an dating the Def endant. She said that she lived at the Marsha ll house “for a while.” Dile said that neither the Oneida house nor the Mar shall house had bunk be ds.

Dile tesified that, the night befor e her wedding
, she asked K.D. whether what she told police about the Def

endant was true. Acc ording to Dile, K.D. responde d, “[M] ama, they wouldn’t listen. No, they won’t listen to me. I tried to te ll them but the y won’t listen to me.” Dile stated that K.D.

was a bridesmaid in their wedding and prese nted a picture of K.D. sta n d ing near the Def endant during the wedding

. Dile tesified that K.D. neve r ac ted as thoug h she fe are d the Def endant or did not want to be ar ound him.

On cross-exam i n at i o n , Dile t estified she loved t he Defenda nt, who was her husband. She clar ified they wer e marrie d J uly 30, 2005. Dile explained that she repor ted her daug hter for abusing only K.D. and not her other children beca use her daug hter “took her frustra tion” out on K.D. alone. She clar ified that she filed the petition in April 2005 and there afte r share d custody of K.D. with her daug hter.

Dile s aid s he and the Defenda nt briefly lived in the M arsha ll Street residence
, wher e Delk also lived. She explained they stay ed at the Marsha ll Street house while they prepa red to move into

a new house.

Dile said that, while K.D

. lived with her a nd the Def

endant a t the Oneida Stre et re sidence
, Dile worke d, but the Def

endant did not. She testified the Def endant, howeve r, was never alone with K.D. She said she “ alway s had a houseful of people ” that would have been pr esent whe n she wa s not. She testified she trusted the D efe ndant to be alone with K.D.

Dile testified she believed her daug hter for ce d K.D. to falsely acc use the Def endant of abusing her, reiter ating that K.D. did not appea r to be scar ed of the Def

endant the night befor e or the day of their we dding.

On re-direc t exami n at i o n, Dile t estified her daug hter often reta liated aga inst her when she ref used to g ive her daug hter money for rent or bills. S h e theorized that, beca use she and the Def endant wer e about to move out of the Marsha ll Street house, her daug hter fea red that her acc ess to her mother’s m oney would disappea r. W h en investigators arr ived at the M arsha ll Street house on May 15 to speak with K.D., Dile was at work, a nd the Def

endant wa s at the house on Ma rshall Street loading a U- Haul truc k with their belong ings to pre pare for the move into their newhouse. Dile s aid Detect i v e S u therland came and interviewe d her at work on May 15. Dile t heorized t hat her daug hter induced K.D. to acc use the Def endant of abusing her beca use her daug hter rea liz ed she would g et less money from her mother if her mother moved into a new home with the Def endant.

7Patricia Martin, the pater nal g randmother of K.D.’s cousin Br y ant, testified that, in April and May 2005, she ca

me into freque nt contact with members of K.D.’s family beca use she visited her
g randson three or four times a wee k. She testified the Def endant owned an El Camino truck when he and Dile beg an dating but trade d it for a van two or three months later. She believed he made the trade befor e the May 15 investiga tion. She said she had been to many of the various homes K.D.’s family occupie d, say ing the family never enter ed into formal lease s and, as a result, moved fre quently

. She said she had never seen a bunk bed in any of the Delks’ homes she visited. Martin testified she hear d Delk tell K.D. “she would beat her brains in” if K.D. did not tell police what Delk instructed her

to say . Martin did not identify what De lk instructed K.D. to say

.

On cross-e x amination, Martin explained she overhe ard Delk’s threa t to K.D. when she was picking up her g randson B ry ant from the O neida Stree t house wher e Dile a nd the Def

endant lived and Delk sometimes stay ed. She test i fi ed t h at , beca use Delk was fre quently verba lly abusive to K.D., De lk’s ag g ressive be havior wa s not out of the ordinary

.

I n rebuttal, the State c alled Da wn Har per a nd ag ain called Detec tive Sutherland to testify

. Dawn Har

per testified she was a fore nsic interviewe r at the Nashville Child Advoca cy Center during the investigat i o n o f t h e char g es ag ainst the Def endant. Har

per explained the proce dure for conducting a forensic int ervie w, which she testified she followe d when she interviewe d K.D.: she sits on the floor of an empty room with the child, attempts to build a rappor t with the child, and asks the child to tell her a

bout the event a t issue.

Har per interviewe d K.D. on May 27, 2005, and she prepa red a short repor

t of the interview, which the State prese nted at trial. She confirme d that her interview of K.D. was videotaped and that she re viewed the videotape the morning of her testimony

.

She rec alled that K.D. told her that, on one occa sion, the Def endant woke her up by shaking her and “rubbing her privates” but that her y oung er sister caug ht the Def endant doing this. Har

per confirme d that K.D. the n said her father assaulted the Def endant because her sist er told him what the Def endant ha d done to K.D.

Har per also rec alled that K.D. said the Def endant told her to “suck it” while she lay on a bunk bed in her room watching the Disney Channel. Har per said K.D. never told her any thing about the Def endant’ s conduct in an El Camino truck pa rked in fr ont of a tanning salon.

On cross-e x amination, Har per said K.D. never told her the date on which the Def endant sexually contac ted her. She said differ entiating betwee n the episodes of sexual contac t was difficult. She attributed this difficulty t o the prac tice in fore nsic interviewing of inviting “fr ee narr ative to wher e the c hild tells every thing that they

can.”

Detec tive Sutherland testified that Dile, since the initiation of the investiga tion ag ainst the Def endant, insisted that K.D.’s mother forc ed K.D. to falsely acc use the Def endant of sexual abuse. I n order to deter

mine whether Dil e was corr ect, the detec tive monitored a conver sation betwee n

8K.D., Del k
, an d Di le. I n the conversation, which no party knew he was moni toring
, Dile i nsisted

K. D. admit the Def

endant did not abuse her, but both K.D. and her mother maintained that t h e alleg ati o ns wer e true. Also, the detec tive arr ang ed for a taxi equipped with a rec ording device to transport K.D. and her mother to the interview with Har per in order to detec t whether Delk attempted
to influence K.D.’s statement

. He instructed the driver, an undercover police officer
, to leave the
two alone in the taxi for a brief period. K.D. and her mother bare ly spoke during the ride to and from the interview and said nothing during the period in which the driver left them alone i n t h e t ax i

.

At the close of proof, the Davidson County jury convicted the Def endant of one count of rape of a c hild, one count of a ttempted rape of a c hild, and two counts of ag g ravated sexual battery

.
C. Sentencing Hearing

At the Def

endant’ s sentenc ing hear ing, t h e fol lowing evidenc e was prese nted: The State
enter ed a prese ntence repor t, which st at ed that, at the time of sentenc ing, the Def endant was fifty
y ear s old, unemploy ed, and suffe rin g from memory problems, “ner ves,” chronic obstructive pulmonary disease, limit ed vision and hear i n g, an d hy perte nsion. The Def

endant dropped out of school in the seventh g rade and worke d in construction and maintenanc e. He marrie d and divorce d

sever al times befor e he marrie d Dile. He has two s o n s an d two daug hters from his previous marria g es.

Ac cording to the prese ntence repor t, the Def

endant has two convictions for ag g rav at ed assault, two convictions for assault, tw o convictions for driving under the influence
, twelve convictions for driving with a revoke d or suspended license, and one conviction eac h for possession

o f a p rohibited wea

pon; manufa cture , sale, or possession of an illega l substance; patroniz i n g prostitution; selling dr

ug s, rec kless endang erme nt involving a de adly wea pon, and g rand la

rce ny

.

The prese ntence repor

t included a victim impact statement from one of K.D.’s au n t s

. Acc ording to her statement, the abuse cause d K.D. to fea r strang ers and being alone. The letter stated that K.D. had “daily problems with se lf-este em and self-c onfidenc e” and that she continued
to rec eive r ape a

nd sexual abuse counse ling.

T h e Def endant introduced a repor t of his medical conditions, which confirme d t h at h e suffe red from chronic pulmonary obstructive disorder and as t h m a. Finally
, as the Def endant committed his crimes befor e J uly 1, 2005, he signe d a waiver for the trial court to s en t en ce h im under the 2005 Sentencing Reform Act. As such, the trial court conclude d it could use fac tors other than his criminal history

to enhanc e his sentenc e.

The trial court applied enhanc ement fac tors (1), that the Def endant had a previous history of criminal convictions or criminal behavior
, in addition to those nece ssary to establish the appropr iate
rang e, and enhanc ement fac tor (14), that the defe ndant abused a position of public or private trust, in a manner that signific antly fac ilitated the commission or the fulfillment of the offe nse to enhanc e the Def endant’ s sentenc es. See T.C.A. § 40-35-114 (1 ), (14). The trial court rec og nized the De fendant’s “dete riorating health” as the only mitigating fac tor. The trial court sentenc ed t h e

9Def

endant as a child rapist to serve the following sentenc es at 100%: twenty -two y ear s for the rape of a c hild conviction; ten y ear s for the attempted rape of a child conviction; and ten y ear s for e ach of the two ag g ravated sexual ba ttery convictions. Finding fac tor (5) of the consec utive sentenc ing

s t at u te, which applies to defe ndants convicted of two or more statutory child sex abuse char ges

acc ompanied by ag g ra v at i n g ci rcumstanc es, applied to the Def endant, the trial court order ed the Def endant to serve the twenty -two y ear sentenc e for rape of a child consec utively to the rema ining
sentenc es, for an eff

ective sentenc e of thirty -two y ear s. I t is from these judgme nts that the Def endant
now appe als.

II. Analysi s

On appea l, the Def

endant contends: (1) the evidenc e, as a matter of law, was insufficient to support his convictions beca use the proof at tr i al fa t al ly varie d from his indictments; (2) the trial
court err ed when it failed to merg e one of his ag g ravated sexual battery convictions into his rape of

a child conviction; and (3) the trial court err ed when it set the leng th and alig nment of his sentenc es.

A. Variance Between Ind ictm ent and Pr oof at Trial

The Def endant contends that the indictments issued ag ainst him alleg e h e r a p e d a nd assaulted the vict i m i n April and May 2005 but that the State’s proof established that the conduct occur red befor e April and May 2005. As a result, the Def endant arg ues, the proof at trial materia lly differ ed from the indictment and, there fore
, preve nted him from prepa ring an adequa

te defe nse. As such, he conclude s, the proof at trial was insuffic ient as a ma tter of law to support his convictions.

The State responds first that, beca use the proof at trial established that the conduct occur red during the time period set out in the indictments, betwee n April and May 2005, the proof at trial did
not v ary from the indictments. The State also arg ues that any varia nce betwee n the dates in the indictments and at trial is not materia l beca use date is not a materia l e lement of any the offe nses at issue. Fur

ther, the State arg ues, the Def endant faile d t o s h o w h o w any varia nce betwee n his indictments and the trial proof preve nted him from pre paring an ade quate de fense

.

Both the Fe dera l and Tenne ssee Constit utions g uara ntee the criminally acc used knowledg e of the “natur e and cause of the acc usation.” U.S. Const. Amend. VI ; see also Tenn. Const. art. I
, § 9. I n order to comply with these constitutional g uidelines, an indictment o r prese ntment must provide notice of the offe nse char g ed, adequate g rounds upon which a proper judgmen t may be
enter ed, and suitable protec tion ag ainst double jeopar dy

. T.C.A. § 40-13-202 (2003); State v. Byrd
, 820 S.W .2d 739, 740-41 (Te nn. 1991). The T ennesse e Supreme Court has stated:

[A] n indictment is sufficie nt to satisfy the constitutional g uara ntees of notice to the

acc used i f t he in d i ct m ent contains alleg ations that: (1) enable the acc used t o know the acc usation to which answe r is require d; (2) furnish the trial court an adequate basis for entry of a proper judgme nt; a nd (3) protec t the acc used from a subsequent
prosec ution for the same offe nse.

10State v. Hamm onds , 30 S.W .3d 294, 299 (Tenn. 2000) (citations omitted).

This Court explained, “A varia nce betwee n an indictment or a subsequent bill of particula rs and the evidenc e prese nted at trial is not fata l unless it is both materia l and prejudicia l.” State v. Shropshire
, 45 S.W .3d 64, 71 (Tenn. Crim. App. 2000) (citing State v. Moss
, 662 S.W .2d 590, 592 (Tenn. 1984)). A varia

nce is materia l only wher e the indictment o r t h e bill of particula rs and the proof do not substantially corr espond. Id

. (citing State v. Mays
, 854 S.W .2d 638, 640 (Tenn. 1993)). A varia nce is prejudicia l when it cause s the defe ndant to be misled or surprised at trial, or leave s the defe ndant vulnera

ble to a second prosec ution for the same offe nse. Moss
, 662 S.W .2d at 592. I t is
not reve rsible error when a defenda nt is s u ff i ci entl y awa

re of the charg e and is able to adequately
prepa re f or trial. Id.

Having re v i ew ed t h e evidenc e prese nted at trial in this case , we conclude the evidenc e offe red at trial did not fata lly vary from the alleg ations set forth in the indictments. The indictments alleg e eac h offe nse occur

red “on a date betwee n April, 2005 and May
, 2005

. . .” At trial, the victim testified the sexual contac t occur red when she lived with Dile and the Def endant. Dile testified the victim beg an living with her on wee kday s in Ap ri l 2 0 0 5. K.D. specifie d the Def endant beg an to sexually abuse her approximately three wee ks befor e police interviewe d her. The rec ord ref lects that police interviewe d the victim on May 15, 2005, which indicates that the Def endant beg an sexually assaulting K.D. on or around April 2 4
, 2 0 0 5

. K. D. also testified her brother’ s birthday
, April 15, 2005, occur

red in the middle of the time period during which the Def endant abused her. There fore
, K.D’s an d Di l e’s testimony show the sexual contac t occur red in April and May 2005, which is consistent with the time fra me laid out in the indictments. The proof at trial does not, there fore
, vary from the indictments. As such, the proof offe red by the State is not, as a matter of law, insufficient to support the Def

endant’ s convictions. He is not entitled to relief on this iss ue.

B. Mer ger

The Def endant contends that his convictions for rape of a child and ag g ravated sexual battery derive from the same conduct and, there fore
, violate the double jeopar dy clause s of the United States and Tennessee Constit utions. The Defenda nt acknowledg es he failed to object to the t rial court’s entry of separ ate convictions and, conseque ntly
, waived revie w of this issue pursuant to Tenne ssee Rule of Appellate Procedur e 3(e ). He reque sts this court re view the issue f or plain er

ror.

The State responds that the Def endant waived revie w of this issue but that, in the event this Court revie ws the issue for plain err or, this Court should aff irm the Def

endant’ s separ ate convictions for rape of a child and ag g ravated sexual battery beca use eac h conviction rests upon a separ ate, discrete act by

the Def endant.

An appellate court may revie w an issue which would ordinarily be considere d waived if the court finds plain e rror

in the rec ord. Rule 52 of the Tenne ssee Rules of Criminal Procedure states, “An err or which has a ffe cted the substantial r ights of an acc used may be noticed at any time, e ven though not raised in the motion for new trial or assig ned as err or on appea l, in the discretion of the appellate court wher e neces s ar y t o d o substantial justice.” Tenn. R. Crim. P. 52(b). Whether an

11issue rises to the level of plain err or is a decision that lies within the sound discretion of the appellate

court and may be considere d: (1) to preve nt needle ss litigation; (2) to preve nt injury to the interests of t he publi c; and (3) to preve nt prejudice to the j udicial process
, preve nt manifest inj ustice, or to do substantial justi ce. SeeTenn. R. App. P. 13(b); Te nn. R. Crim. P

. 52(b); State v. Adkisson , 899 S.W .2d 626, 638-39 (Te nn. Crim. App. 1994).

The Def endant’ s convictions for rape of child and aggr av at ed sexual battery rest on two actions the Defendant took during a single episode of sexual abuse ag ainst K.D. I f indeed the Def endant’ s convictions are based on the same conduct for purposes of the double jeopar dy clause
, the convictions violate his rig hts ag ainst double jeopar dy found in the United States and Tenne ssee Constit utions. I n order to do substantial justice, there fore
, we wi l l re view for plain err or the trial court’s failure to merg e the Def endant’ s convictions for rape of a child and ag g ravated sexual battery

. See Tenn. R. Crim. P. 52(b); Adkisson , 899 S.W .2d at 638-39.

I n Adkisson
, this Court sta ted that the following fac tors should be prese nted in or der for an appellate court to deter

mine whether an error constitutes “plain error” : (a) the record must clea rly establish wh at occur

red at the trial court; (b) a clea r and unequivoca l rule of law must have been brea ched; ( c) a

substantial rig ht of the ac cused must have been a dverse ly aff ecte d; (d) the a ccuse d
must not have waived the issue for tactica l rea sons; and (e) consideration of the issue must be “nec essar y to do substantial justice.” Adki s s o n , 899 S.W .2d at 641-42 (citations omitted). Our Supreme Court char acte rized the Adkisson test as a “cle ar and meaning ful standard” and emphasized that eac h of the five fac tors must be prese nt be fore an err or qualifies as plain err or. State v. Smith
, 24 S.W .3d 274, 282-83 (Te nn. 2000).

Merg er of convictions i s sometimes nece ssary in order to reme dy the double jeopar dy problem of multipl e punishment. State v. Be ard , 818 S.W .2d 376, 379 (Tenn. Crim. App. 1991). Be cause it is a q u es t i o n o f l aw, this Court’s revie w of a double jeopar dy issue is de novo with no presumption of corr ectne ss. Stat e v. L ewis
, 958 S.W .2d 736, 738 (Tenn. 1997). The double jeopar dy clause i n t h e Unites States Constit ution provides that no person “shall

. . . be subj ect for the same offe nse to be twice put in jeopar dy of life or limb

. . . .” U.S. Const. amend V. Simi larly
, the Tenne ssee Constit ution states that “no person shall, for the same offe nse, be twice put in jeopar dy of life or limb.” Tenn. Const. art. I
, § 10. Three fundame ntal principles underlie double jeopar dy : (1 ) protec tion ag ainst a second prosec ution afte r an acquittal; (2) protec tion ag ainst a secon d
prosec ution afte r conviction; and (3) protec tion ag ainst multipl e punishments for the same offe nse. State v. Burris , 40 S.W .3d 520, 524 (Tenn. Crim. App. 2000)

.

This case falls into the third cate g ory , multipl e punishments for the same offe nse, which has been ref err ed to as the problem of “multiplicity .” See State v. Phillips
, 924 S.W .2d 662, 665 (Tenn. 1996). When multipl e sentenc es are imposed in a single trial, double jeopar dy protec tion “is limit ed
t o assuring that the court does not exceed its leg islative authorization by imposing multipl e punishments for the same offe nse.” Brown v. Ohio
, 432 U.S. 161, 165 (1977). Prosecutors cannot avoid the limit ations of the double jeopar dy clause by the simple expedient of dividing a single crime into a series of temporal or spatial units. State v. Easterly
, 77 S.W .3d 226, 232 (Tenn. Crim. App. 2000). Multipl icity of char g es or convictions exis ts wher e prosec utors divide conduct into discrete

12o ff

enses, “cr eating sever al offe nses out of a single offe nse.” State v. Charles L. W illiams
, No

. M2005-00836-CCA-R3-CD, 2006 WL 3431920, at *29 (Tenn. Crim. App., at Nashville

, Nov. 29, 2006) (quoting Phillips
, 924 S.W .2d at 665). Whether the acts of a defe ndant constitute separ ate offe nses or one single crime must be deter mined by the fac ts and circ umstances of eac h case

. State v. Pick ett , 211 S.W .3d 696, 706 (Tenn. 2007)

.

A four- step analy sis g uides o u r deter mination of whether a defe ndant’s acts constitute a single offe nse: (1) whether one offe nse is a lesser- included offe nse of the other under the Blockburge r analy sis; (2) a considera tion of the evidenc e used to establish the offe nses, g uided by 2 the principles our Supreme Court articula ted in Duchac v. State
, 505 S.W .2d 237 (Tenn. 1973); (3)

a considera

tion of whether there wer e discrete acts or multipl e victims; and (4) a compar ison of the
statutes and their respe ctive purposes. State v. Denton
, 938 S.W .2d 37 3
, 378 (Tenn. 1996). Howeve r, “[n] one of these steps is deter minative; rathe r the results of eac h must be weig hed and considere d in r elation to eac h other.” Id .; see also State v. Mixon
, 983 S.W .2d 661, 675-76 (Tenn. 1999).

1. Blockburger Analysis

To conduct a Blockburger analy sis, this Court must deter mine whether the statutory definitions of t he offenses at i s s ue require “proof of a fact t hat t he other does not ,” with the focus being on the elements of the offe nses. State v. Black
, 524 S.W .2d 913, 920 (Tenn. 1984) (quoting Blockburge r , 284 U.S. at 304) (other ci t at i o n s and internal quotations omitted). I n this case , this analy sis must be applied to the offe nses of rape of a child and ag g ravated sexual battery
, as define d in the Tenne ssee Code.

I n Tenne ssee, the offe nse of rape of a child consists of two elements: (1) that the defe ndant sexually penetr ate the victim; and (2) that the victim be betwee n th re e an d thirteen y ear s of ag e. T.C.A. § 39-13-522( a) ( 2006). The offe nse of a g g rava ted sexual battery

consists of the following
two elements, which differ slightly from the elements of rape of a child: ( 1) that the defe ndant had “unlawf ul sexual contac t,” which the Code define s as the intentional touching of intimate parts with the purpose of sex ual arousal or gra tification, wi t h t h e v i ctim; and (2) that the vi ctim be less than thirteen y ear s of ag e. T.C.A. §§ 39-13-501( 6), -504(a )(1) -(4) (2006). I n summary , a defe ndant must penetr ate the victim in order to commit rape of a child, but not in order to commit ag g ravated sexual battery

. Simi larly
, althoug h a defe ndant must touch a victim’s “intimate parts” with the purpose of deriving sexual arousa l in order t o co mmit ag g ravated sexual battery
, rape of a child require s no simil ar purpose. There fore
, the offe nses of rape of a child and ag g ravated sexual battery eac h require “proof of fac t that the other does n o t” and, as a result, are not the “same ” for double jeopar dy
purposes. See State v. Larry Darnnell Pinex
, No. M2007-01211-CCA-R3-CD, 2008 WL 4853077, *9 (Tenn. Crim. App., at Nashville, Nov. 6
, 2 0 0 8 ) (concluding that, per Blockburge r, ag g rava ted
rape and ag g ravated sexual battery are separ ate offe nses), perm. app. denied (Tenn. May 11, 2009).

S e e B l o c k b u r

g e r v

. U n i t e d S t a t e s , 2 8 4 U

. S

. 2 9 9
, 3 0 4 ( 1 9 3 2 )

. 2

13The prese nce of differ ent statutory elements weig hs ag ainst a finding of multipl icity in case s

of this ty pe, but it does not prec lude such a finding

. Denton
, 938 S.W .2d at 378; compare State v. Barney
, 986 S.W .2d 545, 549-50 (Tenn. 1999) (holding separ ate convictions for rape of a child and
ag g rava ted sexual battery did not violate double jeopar dy ), with State v. Chester W

ayne W alters
, No. M2003-03019-CCA-R3CD, 2004 WL 2726034, at *5-6 (Tenn. Crim. App., at Nashville, Nov. 30, 2004 ) (h o l d i n g s epar ate convictions for rape of a child and ag g ravated sexual battery did violate double jeopar dy

). I n this case , the deter

min at i o n o f whether the two convictions violate double jeopar dy depends on the additional fac tors articula ted in Denton

.

2. Evid ence U sed for Each Con viction

The second Den t o n fac tor require s that we examine the evidenc e used to convict the Def endant in light of our Supreme Court’s decision in Duchac
, 505 S.W .2d at 239-40. Denton
, 932 S.W .2d at 381. I n Duchac
, our S u p re m e C ourt set out what has been called the “same evidenc e t es t ,” which is a determination of “whether the same evidence is require d to prove” both offe nses at i ssue. Duchac
, 505 S.W .2d at 239. I f t he same evidenc e is not require d to prove eac h offe nse, then the fac t that both char g es resulted from one event does not implicate double jeopar dy conce rns. Id

.

I n this case , we conclude th at t h e s ame evidenc e is not require d to prove the Def endant’ s convicti o n s for rape of a child and ag g ravated sexual battery

. The victim’s testimony that the Def endant digitally penetr ated h er v agi n a on her gr andmother’ s bed after removing her pants and underw ear supports his conviction for rape of a child. The victim’s testimony that, during the same episode of abuse in which he digitally penetr ated her vag i n a, the Def endant rubbed the are a surrounding her anus supports the Def endant’ s conviction for ag g rava ted sexual ba

ttery

. As such, the portions of the victim’s testimony that support the Def endant’ s rape of a child convicti o n are distinct from t h o s e t h at support his conviction for ag g ravated sexual battery

. Thus, the evidenc e used t o convict the Def

endant was not “the same” withi n the m eaning of Du ch a c

. 938 S.W .2d at 381.

3. Discre te V ersus Continuou s Nature of Condu ct

The third Denton factor require s us to consider whether the Def endant’ s conduct aff

ecte d multipl e victims and whether it constituted discrete acts. Denton
, 938 S.W .2d at 381. The conduct
at issue clea

rly involves o n l y o ne victim. Whether the convictions are based on discrete or continuous conduct, howeve r, depends on a five-pa rt consideration descr ibed in State v. Barney
, 986 S.W .2d 545, 548-49 (Tenn. 1999). I n Barney
, our Supreme Court set out five fac tors to be considere d i n d et er m ining whether convictions based on the same occa sion involve discrete or continuo us conduct. Id

. The Barney considerations g uide a court in deter mining whether an instance of conduct in the course of a sexual assault is “dire ctly fac ilitative, and thus, incidental, or

mere ly prepa

ratory in the sense of intending to arouse the victim or perpe trator” for the commission of the principle offe nse. Id

. Mai n t ai n i n g t h e defe ndant’s intent as the “cr itical consideration,” a court should consider

the following aspec ts of the def endant’ s conduct:

141. temporal proximit y –the g reater the inter

val betwe en the a cts, the more likely the
acts a re se parate;

2. spatial proxim ity

–movement or re -positioning tends to sug g est separ ate a cts;

3. occur renc e of an intervening event–a n interruption tends to sug g est separ ate acts;

4. sequenc e of the acts–ser ial penetr ation of differ ent orifice s as distinguished from
repe ated pe netra tion of the same or ifice te nds to sugg est separ ate of fense s; and

5. the def endant’ s intent as evidenc ed in his conduct a nd statements.

Id

. “The fac t that the acts wer e closely rela ted in time and place does not rende r them insepara ble; indeed, emphasizing only time and place is tantamount to a ‘same transac tion’ analy sis, which is not part of the Denton analy sis.” Cable v. Clemmons , 36 S.W .3d 39, 43 (Tenn. 2001)

.

I n the case under submissi on, K.D. des cr i b ed an episode of sexual abuse in which the Def endant sexually contac ted sever al are as of her body on her g randmother ’s bed. She testified the Def endant remove d her pants and underw ear , lay her down on her g randmother ’s bed, and beg an to “lick” her “priva

te.” Whil e he did so, he beg an to move his fing ers in and out of her vag ina. K.D. said the Def

endant also rubbed her buttocks an d t h e ar ea around her anus. After the Def endant finished, he told K.D. to kee p what happe ned a “ secr et.”

Analy zing the Def

endant’ s two acts under the Barney fac t o rs , we conclude the acts to be disc rete, separ ate acts. The evidenc e does not sug g est a pause betwee n the Def endant’ s vag inal penetr ation of the victim and his touching her anus. Nor does a re- positioni ng or an interr u p t i on separ ate the actions. The tr ansfe r of the Def endant’ s acts from one are a of K.D.’s body to a nother
sug g ests the acts wer e di s tinct. The Def endant moved from one orifice to another
, rathe r than
repe atedly penetr ating or contac ting the same orifice

. I n our view, the transfe r betwee n one are a of

a victim’s body to another sets in motion a new, distinct set of phy sical and emotional response s in the victim. The eff

ect of the contac t with a distinct part of the victim’s body occur s whether or not

a defe ndant pauses, repositi o n s , or behave s differ ently betwee n making contac t with the second orifice

. I n this case , there fore
, the Def endant’ s transfe r of his attention and actions from the victim’s
vag ina t o her anus g ave r ise to his culpability for a separ ate of

fense . Acc ording ly , the third fac tor does not weig h in favor of the Def endant’ s arg ument.

4. Legislative Intent Behind Of fense Statutes

The fourth Denton fac tor require s us to compar e the rele vant statutes and t h ei r respe ctive
purposes. Denton
, 938 S.W .2d at 381. As stated by our Supreme Court, the rape and sexual battery
statutes are both “ intended and desig ned to de ter and punish se x ually assaultive conduct.” Mixon
, 983 S.W .2d at 676. Acc ording ly , the fourth f actor weig hs in favor of

the Def endant’ s arg ument.

I n summary , ag g ravated sexual battery and ra p e of a child are separ ate offe nses under

15Blockburge r analy sis, the same evidenc e is not nece ssary to establish the Def endant’ s g uilt of both convictions, the Def

endant’ s actions wer e conce ptually separ ate and distinct under Barney
, and the L eg islature had a common purpose in c riminaliz ing rape of a child and ag g ravated sexual ba ttery

. Three of the four Denton fac tors, there fore
, weig h in favor of punishing th e Def endant’ s actions
separ ately

. Denton
, 938 S.W .2d at 378. Ba sed on our car eful revie w of the above fac tors, there fore
, we conclude the Def

endan t ’s co n v i ct ions for rape of a child and agg ravated s exual battery do not violate the Tenne ssee Constit ution’s proscr iption ag ainst double jeopar dy

. The Def end ant has, there fore
, failed to demonstrate that a “cle ar and unequivoca l rule of law” has been brea ched, which is nece ssary to demonstrate plain err or. Adkisson
, 899 S.W .2d at 641-42; Smith
, 24 S.W .3d at 282- 83. As such, he is not entitled to relief on this iss ue.

C. Sentencing

1. Length of

Sentence

The Def endant objects to the trial court’s application of en h an ce m en t fac tor (14), that he abused a position of private trust to fac ilitate the commission of the offe nse, to enhanc e eac h of his
sentenc es. T.C.A. § 40-35-114( 14) (2006) . He a rg ues his romantic re lationship with t he victim’s
g randmother did not cre ate a “position of trust” betwee n himself and the victim within the meaning of enhanc ement fac tor (14). Noting that the victim ref err ed to the Def

endant as her “Pepa” and that the sexual contac t occur

red when the Def

endant was car ing for the victim while her g randm o ther was at work, th e S t ate responds that the Def endant was in a position of private trust with the victim, which he use d to fac ilitate his sex ual contac t with the victim.

When a defe ndant challeng es the leng th, rang e, or manner of service of a sentenc e, this Court
must conduct a de novo revie w on the rec ord with a presumption that “the deter minations made by the court from which the appea l is taken are corr ec t

. ” T.C.A. § 40-35-401( d) (2006). This presumption, howeve r, is conditioned upon the aff irmative showing in the rec ord that the trial court proper ly sentenc ed the defe ndant. State v. Ashby
, 82 3 S .W.2d 166, 169 (Tenn. 1991). As the Sentencing Commi ssion Comments to this section note, the burden is on the appea ling party to show that the sentenc ing is imprope r. T.C.A. § 40-35-401, Sentenc ing Comm’n Cmts. I f the trial court followed the statutory sentenc ing proce dure, made finding s of fac ts which are adequately supported in the rec ord, and g ave due consideration and proper weig ht to the fac tors and principles rele vant to sentenc ing under the 1989 Sentencing Act, T.C.A. § 40-35 -1 0 3 (2006), we may not disturb the
sentenc e even if a differ ent result was pref err ed. State v. Ross
, 49 S.W .3d 833, 847 (Tenn. 2001). The presumption does not apply to the leg al conc lusions reac hed by the t rial court in sentenc ing a defe ndant or to the deter

minations made by the trial court which are predic ated upon uncontrove rted fac ts. State v. Dean
, 76 S.W .3d 352, 377 (Tenn. Crim. App. 2001); State v. Butler
, 900 S.W .2d 305, 311 (Tenn. Crim. App. 1994); State v. Smith
, 891 S.W .2d 922, 929 (Tenn. Crim. App. 1994). I n the
event the rec ord fails to de monstrate the require d consideration by the trial court, appellate revie w of the sente nce is pure ly

de novo. Ashby , 823 S.W .2d at 169.

I n co n d u ct i ng a de novo revie w of a sentence, we m ust consider: (1) the evidenc e, if any , received at the trial and the sentenc ing hear ing; (2) the prese ntence repor t; (3) the principl es o f

16s entenc ing and arg uments as to sentenc ing alternatives; (4) the nature and char acte ristics of t h e

criminal conduct involved; (5) evidenc e and information offe red by the parties on the mitigating and enhanc ement fac tors set out in Tenne s s ee Code Annotated sections 4-35-113 and -114; (6) any statistical information provided by the administrative office of the courts as to sentenc ing prac tices for simil ar offe nses in Tenne ssee; and (7) any statement the defe ndant made in the defe ndant’s own behalf about sentenc ing. See T.C.A. § 40-35-210 (2009); State v. Taylor
, 63 S.W .3d 400, 411 (Tenn. Crim. App. 2001).

I n T en n essee, if the defe ndant committed his crime befor e J uly 1, 2005, he may either be
sentenc ed under

the 1989 Criminal Sente ncing Act and in a ccor dance with Blakely v. W ashington and State v. Gomez
, or he may sign a waiver that allows the trial court to sentenc e him under the 2005 Sentencing Reform Act. Blakely
, 542 U.S. 296 (2004); Gomez
, 239 S.W .2d 722 (Tenn. 2007). The Def endant committed his crimes in May and Apr il of 2005 and wa s sentence d on J anuar y 18, 2008. The Def

endant, howeve r, signe d a waiver for the trial court to se ntence him unde r the 2005 Sentencing Reform Ac t. 3

The Criminal Sentencing Act of 1989 and its amendments descr ibe t h e p roce ss for deter mining the appropr iate leng t h o f a defe ndant’s sentenc e. Under the Act, a trial court may impose a sentenc e within the applicable rang e as long as the imposed sentenc e is consistent with the Act’s purposes and princ iples. T.C.A. § 40-35-210(c )(2) and (d) (2006); see State v. C arter , 254 S.W .3d 335, 343 (Tenn. 2008). The Tenne ssee Code allows a sentenc in g court to consider the following enhanc ement fac tors, among others, when deter mining whether to enhanc e a defe ndant’s
sentenc e:
(1) The defe ndant has a previ o u s history of criminal convictions or criminal behavior
, in addition to those nece ssary to establish the appropr iate ra ng e;

. . . (14) The defe ndant abused a position of public or private trust, or used a profe ssional license in a manner t hat s ignif

icantly fac ilitated the commi ssion or t he fulfillm ent o f t h e offense .

. . .

T.C.A. § 40-35-114( 1), (14) (2006). I f an enhanc ement fac tor is not alre ady an essential element of the offe nse and is a

ppropriate for the offe nse, then a court may consider the enhanc ement fac tor in its leng th of sentenc e deter mination. T.C.A. § 40-35-114 (2006). I n order to ensure “fa ir and consistent sentenc ing,” the trial co u rt m u s t “plac e on the rec ord” what, if any , enhanc ement and mitigating fac tors it co n s i d er ed as well as its “re asons for the s entenc e.” T.C.A. § 40-35-210( e).

T h e l e g i s l a t u r e a m e n d e d t h e S e n t e n c i n g R e f o r m A c t o f 1 9 8 9
, w i t h t h e c h a n g e s t a k i n g e f f e c t o n J u n e 7
, 3

2 0 0 5

. W h e n , a s i n t h i s c a s e , t h e c r i m e o c c u r r e d b e f o r e J u n e 7
, 2 0 0 5
, t h e D e f e n d a n t m a y “ c h o o s e ” t h e s e n t e n c i n g

s c h e m e f o r t h e t r i a l c o u r t t o u s e w h e n s e n t e n c i n g h i m

. S e e S t a t e v

. J o e A l l e n B r o w n , N o

. W 2 0 0 7

- 0 0 6 9 3

- C C A

- R 3

- C D
, 2 0 0 7 W L 4 4 6 2 9 9 0
, a t * 4 n 1 ( T e n n

. C r i m

. A p p

. , a t J a c k s o n , D e c

. 2 0
, 2 0 0 7 )
, n o T e n n

. R

. A p p

. P

. 1 1 a p p l i c a t i o n f i l e d

.
17Be fore the 2005 amendments to the Sentencing Act, both the State and a defe ndant could appea l the

manner in w hich a trial c ourt weig hed enha nceme nt and mitigating fac tors it found to apply to the defe ndant. T.C.A. § 40-35-401( b)(2) (2003). The 2005 amendments deleted as g rounds for appea l, howeve r, a claim that the trial court did not proper ly weig h the enhanc ement and mitigating fac tors. See 2005 Tenn. P ub. Acts ch. 353, §§ 8, 9. I n summary , althoug h this Court cannot review a trial court’s weig hing of enhanc ement fac tors, we can revie w the trial court’s applicat i o n of those enhanc ement fa ctors. T.C.A. § 40-35- 401(d) ( 2006); Carter , 254 S.W .3d at 343.

The Def endant is a Rang e I offe nder, and rape of a child is a Class A felony

. T.C.A. § 39-13- 522. There fore
, the appropr iate rang e for t h e De fe n d an t’s rape of a child conviction is fiftee n to twenty -five y ear s. T.C.A. § 40-35-112( a)( 1) (2006). Attempted rape of a child and ag gra v at ed sexual battery are Class B felonies. T.C.A. §§ 39-13-522, -504. There fore
, the appropriate rang e for both the Def

endant’ s attempted rape of a child conviction and his two ag g ravated sexual battery convictions is eig ht to twelve y ear s.

At t h e co n clusion of the Def endant’ s sentenc ing hear ing, the trial court applied two enhanc ement fac tors to eac h of his four convictions: enhanc ement fac tor (1), that the Def endant had

a previous history of criminal co n v ictions or criminal behavior
, in addition to those nece ssary to establish the appr opriate r ang e; and e nhance ment fac tor (14), tha t the defe ndant abuse d a position of public or private trust, or used a profe ssional license in a manner that signific antly fac ilitated the commission or the fulfillment of the offe nse. See T.C.A. § 40-35-114( 1), (14). The court explained its finding
, under fac tor (14), that the Def endant “abuse d a position of trust, public or private trust, in a manner

that signific antly

fac ilitated the commission or the fulfillment of the offe nse”:

She was in the custody of her g randmother who works. And so [t he Def endant] was in c harg e of the supervision of the child.

. . . [S ]he w as put in .

. . his c are and these offe nses occurre d when he had that. So I think the record clear ly makes out fac tor fourtee n. So I ’m g oing to use fac tor one a nd fourtee n as to all counts.

The trial court rec og nized the Def endant’ s poor health as a mitigating fac tor under Tenne ssee Code Ann o ta te d s e c ti o n 4 0

- 3 5

- 1 1 3(13), which allows a trial court to consider “[a]ny other fac tor consistent with the purposes of this chapte r” as a mitigating fac tor. The t ri al court g ave the Def endant an enhanc ed sentence of

twenty -two y ear s for his rape of a child conviction, and enhanc ed sentences of ten y ear s eac h for his re maining thr ee c onvictions.

The Def endant disputes only the trial court’s application of enhanc ement fac tor (14), that he abused a position of private trust to fac ilitate his sexual contac t with the victim. See T.C.A. § 40-35- 114(14). I n support of his arg ument that he was not in a position of private trust with the victim, he cites our Supreme Court’s opinions holding that neither a signific ant ag e differ ence nor living in the

same household alone cre ates a position of trust betwee n defe nd an t an d victim. See State v. Kissi nger , 922 S.W .2d 482, 488 (Tenn. 1996) (ag e differe nce insuff icient alone to cre ate posit ion of trust); State v. Gutierrez
, 5 S.W .3d 641, 646 (Tenn. 1999) (living in same household insufficient alone to cr eate position of trust).

18After a thoroug h revie w of the rec ord, we conclude the rec ord contains indicia of a depende nt

rela tionship betwee n the Def endant and K.D., i n addition to their living toge ther and their ag e differ ence

. First, K.D. ref err ed to t h e De fendant as her “Pepa,” which in our view indicates she
reg arde d the Def

endant, who was dating her g randmother
, as an authority fig ure. Fur ther, the victim

was place d in the Def

endant’ s char g e while her g randmother worke d. There fore
, K.D. was place d in a position in which she was expected to listen to and obey the Def endant. These fac tors, coupled with an ag e differ ence and the fac t K.D. lived with th e Defendant and her g randmother in an

arr ang ement that approximated a nuclea r family model, indicate the Def endant was in a position of
trust with K.D. See Kissi nger , 922 S.W .2d at 488; Gutierrez
, 5 S.W .3d at 646. The rec ord does not preponde rate ag ainst the trial court’s finding that the Def endant was in a “position of private trust” with the victim, which he used to fac ilitate his sexual contac t with the victim. See T.C.A. § 40-35- 114(14). We conclude that the trial court did not err when it applied enhanc ement fac tor (14) to the Def endant’ s sentence s. As such, the De fenda nt is not entit led to relief

on this iss ue.

2. Alignme nt of S entence s

The Def endant also contends the trial court err ed when it order ed the Def endant to serve his
rape of a ch i l d co nviction consec utively to his convictions for attempted rape of a child and
ag g rava ted sexual batt er y

. He ar g ues that, in order to base consec utive sentenc ing on Tenne ssee Code Annotated section section 40-35-115( 5)(b)
, as the trial court in this case did, a trial court must make sever al fac t u al fi n d i n gs t he trial court in this case failed to make. The State responds that, althoug h the trial court’s finding s may be incomplete, the rec ord supports the exis tence of the fac tors

nece ssary to base c onsecutive se ntencing on subsection (5)( b).

I t is within the sound discretion of the trial court whether or not an offe nder shou l d b e sentenc ed conse cutively

or conc urre ntly

. State v. Jame s , 688 S.W .2d 463, 465 (Tenn. Crim. App. 1984). A court may order multipl e sentenc es to run consec utively if it finds, by a preponde ranc e of the evidenc e, that at least one of seven listed fac tors exis ts. These seven fac tors include fac tor (5), which applies w here :
(5) The defe ndant is convicted of two (2) or more statutory offe nses involving sexual abuse of a mi nor wit h considerat ion of t he aggravating circumstance s arising from the re lationship betwee n the defe ndant and victim or victims, the time span of the defe ndant’s undetected sex ual activity
, the nature and s co p e o f t h e sex ual acts and the extent of the residua l, phy sical and me ntal damag e to the victim or victims;

T.C.A. § 40-35-115 (b )( 5 ). I n addition to these criter ia, consec utive sentenc ing is subject to the
g ener al s entenc ing prin ci p l e that the l eng th of a sentenc e shoul d be “justl y deser ved in rela tion to the seriousness of the offe nse” and “no gre ater than that deser ved for the offe nse committed.” T.C.A. § 40-35-102( 1), 103(2); see also State v. Imfeld
, 70 S.W

. 3 d 6 9 8
, 7 0 8 (Tenn. 2002). Rule 32(c) of the Tenne ssee Rules of Criminal Procedur e instructs a trial court to expli citly rec ite on the judgme nt its reasons for imposing a conse cutive sente nce.

On appea l, the Def

endant asser

ts the trial court improperly imposed consec utive sentenc ing

19based upon fac tor (5). Rely ing on Raygan L

. Presley v. Stat e , the Defenda nt asser ts that, in order
to base consec utive sentenc ing on fac tor (5), eac h consideration mentioned in fac tor (5) must weig h in favor of consec utive sentenc ing. No. M2007-02 4 8 7 -CCA-R3-CD, 2008 WL 3843849, *8-9 (Tenn. Crim. App., at Nashville, Aug

. 18, 2008), no Tenn. R. App. P. 11 application filed

. Our examination of case law reve als, howeve r, that eac h fac tor (5) consideration need not weig h in favor of conse cutive sente ncing in order f or the fa ctor to apply

.

I n Presley
, this Court reve rsed consec utive sentenc ing based on fac tor (5) wher e the victim’s rela tionship with the defe ndant (her stepfathe r) was the sole consideration that favor ed consec utive
sentenc ing, and t h e record preponde rate d ag ainst the trial court’s finding of residual mental or phy sical dama ge i n t h e victim and failed to establish the that the three rema ining considerations weig hed in f

avor of consec utive sentenc ing. Id

. The Court e x plained consec utive sentenc ing was improper beca

use the rec ord established only that one consideration, the victim’s rela tionship with the defe ndant, favored consec utive sentenc ing. Id

. Presley
, there fore
, does not require that eac h fac tor (5) consideration weig h in favor of consec utive sentenc ing, as the Def endant insists

. I nstead, it mere ly cautions that one fac tor’s weig hing in favor of consec utive sentenc ing d o es n o t al o ne establish fac tor (5) a s a statutory basis for c onsecutive se ntencing

.

At the conclusion of the sentenc ing hear ing, the trial court found th at fa ct o r (5) justified

consec utive sentenc ing:

The g rounds for which I can run things concur rently or consec utively are laid out in 40-35-115. The only one that would apply in this case would be fac tor number five, that if convicted of two or more statutory offe nses involving sexual abuse of a minor with considera

t i o n o f the ag g ravating circ umstances arising from the rela tionship betwee n the victim and the [D] efe ndant. And, clea rly
, . . . he was the boy [friend] of her g randmother
, who

. . . later marrie d [t he Def endant]. The time of the undetec ted sexual activity
, which in this par ticular c ase w as re latively short, considering some of the case s that I ’ve hear d[] [and] [t ]he na ture and scope of the sexual a cts and the

ex t en t o f t h e residual phy sical or mental damag e to the victim or the victims

. . . would have to be made out by the testimony that was at trial, which there wasn’t all that much. But I think when y ou look at [t he fac ts]

. . . as a whole, there [are] some

rea l serious problems with th e wa y an d the manner in which this occur red. The victim, who had obvious issues–she hasn’t seen her mother in some time. I think she just sort of disappea

red. [The victim] [w] as in t h e cu s t o d y of her g randmother
, whose boy [friend] then abuses her while she is in his car e. I think [factor (5)] has been ma de out.

The trial court there fore
, found that all but one of the fac tor (5) considerations weig hed in favor of

cons ec u t i v e s en tencing

. The trial court then order ed the Def endant to serve his twenty -two y ear sentenc e for rape of a child consec utively to his three rema ining sentenc es of ten y ear s eac h, which

wer e to be serve d concur

rently

. The Def

endant’ s total eff

ective sentenc e, there fore
, was thirty -two y ear s.

20We conclude t h e trial court properly imposed consec utive sentenc ing based on fac tor (5).

The De fenda

nt stands convicted of two statutory offe nses involving se x ual abuse of a minor, r ape of a child and attempted rape of a child. There fore
, as t he trial court noted, t h e Defenda nt clea rly
meets the first prer equisit e for fac tor (5)’ s application. See T.C.A. 40-35-115( 5). Both K.D. and Dile testified Dile was in a romantic rela tionship with the Def endant, and the Def

endant was char g ed with car ing for K.D. in Di l e’ s ab s ence when the abuse occur red. The rec ord, there fore
, does not preponde rate against the court’s finding that the rela tionship betwee n K.D. and the Def endant favor ed consec utive sentenc ing. Be cause K.D. testified the Def endant sexually assaulted her on at least four differ ent occa sions, penetr ating her on at least one of these occa sions, the rec ord does not p re p o ndera te ag ainst the trial court’s finding that the nature and scope of the sexual acts justi fi ed

consec utive sentenc ing. Finally
, acc ording to the prese ntence repor t, at the time of sentenc ing the victim was rec eiving counseling from an ag ency that provides psy cholog i ca l car e to sex abuse

v i cti ms. There fore
, the rec ord does not preponde rate ag ainst the trial court’s finding that K.D.’s residual mental damag e justified consec utive sentenc ing. I n summary , the Def endant was convicted of two statutory sexual offe nses involving a child and the trial court found all but one of the additional fac tor (5) considerations weig hed in favor of consec utive sentenc ing. We conclude
, there fore
, that the trial court proper ly i m p o s ed consec utive sentenc ing based on fac tor (5). See Presley
, 2008 WL 3843849, at *8-9. Acc ording ly
, we aff irm the trial court’s ap p l i ca tion of

consec utive sentenc ing. T he De fenda nt is not entit led to relief

on this iss ue.

III. Conclusi on

After a thoroug h revie w of the rec ord and rele vant authorities, we conclude the evidenc e is sufficie nt to support the Def endant’ s convictions, that his convictions for rap e of a child and
ag g rava ted sexual battery do not violate his rig ht ag ainst double jeopar dy
, and that the tr i al court proper ly sentenc ed him. Acc ording ly , we a ffirm the judg ments of the trial c ourt.

_________________________________ ROBERT W. WEDEMEYER, J UDGE

21