IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs September 28, 2010

STATE OF TENNESSEE v. MARCOS ENRIQUE COLLAZO, SR.

Direct Appeal from the Criminal Court for Davidson County

No. 2008-A-832 Monte Watkins, Judge

No. M2009-02319-CCA-R3-CD - Filed September 29, 2011

A Davidson County Criminal Court jury convicted the appellant, Marcos Enrique Collazo,

Sr., of three counts of rape of a child, seven counts of rape by fraud, seven counts of statutory

rape by an authority figure, and seven counts of misdemeanor assault. The trial court

imposed a total effective sentence of 130 years in the Tennessee Department of Correction.

On appeal, the appellant argues that the trial court erred in denying his motion to sever, that

the trial court erred in denying his motion to exclude pornographic videos found in his

bedroom, that the evidence was insufficient to sustain his convictions for rape by fraud and

statutory rape by an authority figure, and that the trial court erred in sentencing. We

conclude that the trial court erred in denying the appellant’s severance motion. However, the

error was harmless. Finding no further error, we affirm the judgments of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court are

Affirmed.

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JAMES CURWOOD

WITT, JR., and CAMILLE R. MCMULLEN, JJ., joined.

Katie Weiss and Emily Todoran (at trial) and Charles E. Walker (on appeal), Nashville,

Tennessee, for the appellant, Marcos Enrique Collazo, Sr.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney

General; Victor S. Johnson, III, District Attorney General; and Kristen Menke, Assistant

District Attorney General, for the appellee, State of Tennessee.

OPINION

I. Factual Background
The Davidson County Grand Jury returned a multi-count indictment charging the

appellant with seven counts of rape, seven counts of rape by fraud, and seven counts of

statutory rape by an authority figure, all of which involved the victim, K.C. The indictment

1

also charged the appellant with three counts of rape of a child, namely A.C.

2

At trial, K.C. testified that her date of birth was August 4, 1992. She stated that she

lived with her father, her mother, and her two sisters, A.C. and V.C. K.C. said that during

her freshman year in high school, she and her family moved from Chicago to Nashville to

be closer to her father’s family. K.C.’s family moved into the Iroquois Apartments in

Bellevue. K.C.’s paternal grandmother and uncle, the appellant, shared an apartment in the

same complex. The appellant’s bedroom was upstairs in the apartment he shared with his

mother.

K.C. said that she did not have many friends in Chicago and that after she and her

family moved to Nashville, she did not know many people. She had a good relationship with

her family and agreed that their arguments were usually about “typical teenage stuff.” K.C.

said that because she and her family did not know many people, her parents did not want her

and her sisters to be alone at their apartment after school. Therefore, her parents arranged

for K.C. and her sisters to stay at the appellant’s apartment until they returned home from

work.

K.C. said that prior to moving to Tennessee, she became interested in studying the

“gothic subculture,” witchcraft, and different religions, including Wicca. She explained that

“gothic subculture” was “not people that like to just dress in black and they look really scary.

It’s just, like, a way of expressing yourself, not trying to look like everyone else just being

different and being yourself.” She said that her views differed from her parents and that she

did not discuss the subject with them.

Near the end of K.C.’s freshman year, her relationship with the appellant changed.

K.C. said that she was frequently alone with him because she got home from school earlier

than her sisters. During the time she spent with the appellant, K.C. told him about her

interests. The appellant told her that he shared her interests, and they formed a close bond.

K.C. said she trusted the appellant. She told him that she was looking for someone special

and that she was afraid that no one would like her. The appellant told K.C. that he knew

about Wicca, that he had magic powers, and that he could read minds. He also told her that

It is the policy of this court to refer to minor victims of sexual offenses by their initials. 

1

The indictment further charged the appellant with the aggravated sexual battery of V.C. However, 2

the count relating to V.C. was severed prior to trial. 

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he had a black candle which gave him visions and allowed him to see into the future. K.C.

said that the appellant lit his black candle and that the flame pointed towards her. He told

her that “the candle thought that [she] was doubting him.” K.C. said the appellant made it

look real, so she believed him.

K.C. said that the appellant repeatedly told her that she could get magic powers by

having sex with him, and she eventually capitulated. The first incident occurred in the

appellant’s bedroom, where they had been talking and watching television. The appellant

played a pornographic video to distract her and blindfolded her with a black bandana. K.C.

stated that the appellant inserted his penis into her vagina and that she began crying. She told

him that she was scared and wanted to stop. At first, the appellant said that he could not stop.

However, after K.C. repeatedly told him to stop, he complied. K.C. said she was terrified,

in pain, and bleeding.

K.C. said that the next incident happened approximately one week later in the

appellant’s bedroom. During the week, the appellant told K.C. that he was weak because she

had not let him “finish,” which meant have an orgasm. The appellant told K.C. that she had

taken some of his powers and that he needed to “finish” to get them back. He told K.C. that

he would die in his sleep because of his weakness. The appellant also acted as if he were in

a lot of pain. K.C. said she was worried about the appellant, so she agreed to have sex with

him. She stated that the appellant again penetrated her vaginally.

K.C. estimated that she and the appellant had sex approximately twenty times, once

in her bedroom and the other times in his bedroom. Each time, the appellant told her that he

needed sex because he was in pain. The appellant told K.C. that his entire body hurt and that

if he died from the pain, he would come back to haunt her. K.C. said, “He meant it to be a

joke and I laughed, but I didn’t really think it was funny and I was scared.”

K.C. stated that the appellant had pornographic videos which he played during

approximately half of the incidents. The appellant kept his pornographic videos in a cabinet

under his fish tank. K.C. identified videos that were seized from the appellant’s bedroom as

the pornographic videos. She said that one of the videos was a “Japanese cartoon[].” The

other videos were “First Time Teens, Teenage Heartbreakers, Teen Dream Number Thirteen,

[and] Young as They Come.” K.C. also identified photographs of the appellant’s bedroom.

A black bandana, a fish tank, and two candles were visible in the photographs. One of the

candles was black with “red stuff” in it, which the appellant said was his blood.

K.C. recalled that the appellant usually convinced her to have sex by saying he was

in pain. However, on one occasion during the summer when K.C.’s sister, A.C., was

scheduled to have surgery on her knee, the appellant told K.C. that she needed to have sex

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with him so that he would have the power to heal A.C. He said that if she refused, A.C.

would be crippled. K.C. said she felt bad and wanted A.C. to get well, so she had sex with

the appellant.

K.C. recalled that the last incident happened after the appellant told K.C. that he had

looked into his candle and saw that her mother, who was scheduled to have surgery, was

going to die. Because she was frightened for her mother, K.C. had sex with the appellant.

Her sisters were usually downstairs when the offenses occurred.

K.C. said that in addition to vaginal intercourse, the appellant had her touch his penis

with her hand approximately five times. He told her to move her hand back and forth. She

complied, hoping that he would not ask to have sex with her. He also requested that she

perform oral sex on him, but she refused. K.C. said the appellant performed oral sex on her

two or three times in his bedroom. She said he also digitally penetrated her and touched her

breasts, over and under her clothes, almost every time they had sex. K.C. said that the

appellant attempted to have anal sex but that she moved away from him. She said the

appellant laughed at her, making her feel worse about what was happening.

K.C. said that the last incident occurred in September following her mother’s surgery.

She told the appellant that she did not want to have sex with him anymore. She gave the

appellant excuses, saying she was tired from school or having her period. She recalled that

every time she rebuffed him, the appellant acted angry and would not talk to her. He told her

that she did not care about him and that she must want him to die.

K.C. stated that during her sophomore year, she told some friends and her exboyfriend about the abuse. The next day, her ex-boyfriend insisted that she tell the guidance

counselor. When K.C. disclosed the abuse to the school authorities, she was taken to the

Child Advocacy Center (CAC) and was examined by members of the Our Kids Center.

K.C. stated that the only family membershe told about the abuse was A.C., explaining

that the appellant was also abusing A.C. K.C. said the appellant told A.C. “[s]ome of the

same things.” Specifically, K.C. recalled that once when they were in the appellant’s

bedroom, the appellant told her and A.C. that he was weak and sick and needed them to have

sex with him to give him strength. K.C. said that she did not want to have sex with the

appellant and that she told A.C. not to have sex with him. However, because A.C. was

concerned about the appellant, she went upstairs to the appellant’s bedroom and had sex with

him. When A.C. came downstairs, she told K.C. that “she guessed [the appellant] was

feeling a little bit better.”

K.C. said that her grades started to drop because of the abuse and that the appellant

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implied she was not to tell her parents about the abuse. The appellant told K.C. that her

parents did not understand her as well as he did and that her parents thought she was a

“problem child.” K.C. said she was afraid that if she told her parents about the abuse, her

father would “do something bad and end up in jail.” She also feared that her parents would

think she was lying and throw her out of the house.

A.C. testified that she was eleven years old and in the fifth grade when her family

moved to Nashville. She said that she and her sisters often stayed at the appellant’s

apartment. She said that the appellant shared her love of music and that she and the appellant

bonded by recording music together. She said they also bonded because they were both

middle children.

A.C. recalled that near the end of fifth grade, she got sick at school and that the

appellant picked her up. When they got back to his apartment, A.C. asked the appellant

about sex. A.C. said that because her friends talked about sex, she felt left out when she did

not understand the discussion. The appellant told A.C. about sex, explaining “that when

people had sex that the sperm would come out from the penis and the woman could become

pregnant.” He also showed her some “Anime” pictures depicting people having sex. A.C.

asked if the appellant had more pictures, and he said yes.

The appellant showed A.C. pornographic videos depicting people who appeared to

be teenagers or older having sex. During the videos, the appellant told A.C. “that he was

horny and that he was in pain and that if [she] didn’t help him that he could die.” The

appellant asked A.C. to help him. A.C. said that the appellant appeared to be in pain and that

she believed the appellant’s claim. Because she cared about the appellant, she “helped him.”

The appellant asked if she wanted to see what was happening. When she said no, he

blindfolded her with a black bandana. She stated that the appellant touched her vagina with

his penis and that it hurt. When she told the appellant about the pain, he told her that “the

first time always hurts.” A.C. said that when K.C. came home, the appellant told her that he

and A.C. had “experimented.” A.C. said she knew the appellant was also having sex with

K.C.

A.C. said that a few days later, K.C. had sex with the appellant in his bedroom, but

he did not have an orgasm. The appellant asked A.C. to help him, stating that he would die

if he did not “finish.” A.C. said that she agreed and that the appellant penetrated her vagina

with his penis.

A.C. also described a third incident. She said that the family was playing in the pool

and that the appellant went to his apartment to put on his swimming trunks. A.C. went with

him. He told A.C. to touch his penis with her hand. Although she did not want to, she

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complied. The appellant claimed he was in pain, so A.C. had sex with him. A.C. said that

all three incidents happened in the summer of 2007.

A.C. said the appellant told her that he could communicate with their deceased

grandfathers. Additionally, he had a black candle and told her that he had magic powers. The

appellant told her he could see into the future and could tell A.C. and K.C. who their

boyfriends and husbands would be. The appellant said that he could will his powers to A.C.

if she touched him. A.C. said she believed him.

A.C. stated that she did not tell her parents because she feared they would not want

her anymore and would give her away. Also, the appellant told A.C. that he would kill her

if she told her parents.

A.C. said that the appellant was arrested around Thanksgiving 2007 and that she was

interviewed by a woman about the abuse. She told the woman that she had sex with the

appellant the first time because he said he had magic powers and could see A.C.’s soul mate.

She later told the woman that the first time she had sex with the appellant occurred after he

showed her a pornographic video and said he was in pain. She explained that she gave

different versions of events “because I made myself forget and I remember now.”

Metropolitan-Nashville Police Detective Jeff Wiser testified that on November 30,

2007, he met the victims and someone from the Department of Children’s Services (DCS)

at the CAC to discuss the appellant’s molestation of the victims. At the CAC, the victims

were interviewed. After the interviews were completed, Detective Wiser met with the

victims’ parents. He asked one of them to wear a body wire and attempt to gain an admission

from the appellant. Later that day, the victims’ father agreed to wear the body wire and

confront the appellant.

Detective Wisersaid that the victims’ father went to the CriminalJustice Center (CJC)

where he was equipped with a body wire. According to the plan devised by police, the

victims’ father parked his car in the lot near the appellant’s apartment and had the appellant

get into the car with him. The conversation was recorded, and the recording was played for

the jury.

During the conversation, the victims’ father confronted the appellant,saying that K.C.

had revealed that the appellant had sexually abused her. The appellant said that “nothing

really happened.” He said that K.C. asked him about sex, and he explained sex to her. The

victims’ father told the appellant that he did not believe him and that K.C. said that A.C. had

also been abused. The appellant said that he had shown the victims “some Anime shit.” He

surmised that the victims made the allegations because they were mad at him for disciplining

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them. The victims’ father asserted that he had been told details of the abuse, including the

appellant’s claims that he had magical powers and that he was in pain. The appellant denied

the accusations. The victims’ father pressed the issue, saying he knew the appellant had

penetrated both K.C. and A.C. He said the victims just wanted the abuse to stop. He told the

appellant that he understood that the appellant could be reacting to abuse he suffered as a

child. The appellant said he “had a feeling” the subject would “come up.” He stated that he

was able to engage the victims in sex because they “were curious.” The appellant said that

he was scared the first time he had sex with A.C. He said, “They were my nieces, my blood,

my little brother’s babies.” He said he did not know how many times he had sex with K.C.

He said the victims “put me in a certain level that it was hard to get out of.” The appellant

said that K.C. reminded him of a girlfriend who had died in an accident and that he had tried

to avoid being alone with K.C. because she reminded him of his deceased girlfriend. The

appellant stated that he tried to block a lot of it from his memory. He maintained, “It wasn’t

all me. . . . They were so curious.” He said that the victims did not behave like children

when they asked him about sex. He said they “made me go to a certain level . . . . Kids do

that to me.” He stated that he did not use a condom because K.C. did not want him to. The

appellant said that he was not “turned on” by children. He said that “the way [he and the

victims] talked about things, all of us got turned on.”

Detective Wiser testified that at the end of the conversation between the victims’

father and the appellant, the appellant was arrested. Detective Wiser said that as the victims’

father got out of the car, he fell to the pavement and started crying.

Detective Wiser said that police searched the appellant’s bedroom. They found

pornographic videos and a black bandana. Detective Wiser said that after the appellant was

arrested, he never complained about a physical disability, discomfort, or pain.

Michelle Ray with the Davidson County Sheriff’s Office said that she was the

“contact person for the inmate phone system.” Detective Jeff Wiser contacted her about

recordings of telephone calls the appellant made from jail to his mother. Ray made copies

of the telephone calls and put them on a compact disc. The recordings of the appellant’s jail

telephone conversations with his mother and sisters were played for the jury. During one of

the calls, the appellant spoke with his sister and asked what was happening at his mother’s

apartment. His sister said, “Let’s see, you raped your nieces and you’re asking what

happened?” She asked if he had anything to say, and he said no. When the appellant’s

mother got on the telephone, she asked the appellant, “What have you done?” She asked the

appellant if he was guilty of the accusations. When the appellant did not respond, his mother

said she believed his silence meant he was guilty. He said the victims caught him “in a weak

moment,” and he asked his mother to forgive him. She told him that the victims were

“devastated” because the appellant “manipulated” their trust in him. The appellant said that

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he knew he would have to pay for what he had done, but he claimed that he was “blacking

out things” and could not recall doing them. The appellant said that he was ashamed.

During another call, a different sister told the appellant to stop calling their mother.

The appellant told her that she did not understand and that he had been under the effects of

medication.

Sue Ross, a pediatric nurse practitioner, testified that she worked with the Our Kids

Center, “an outpatient facility of General Hospital,” which sees children following

allegations of sexual abuse. She said that the nurse practitioner who examined K.C. and A.C.

was unavailable to testify at trial; nevertheless, Ross testified from the reports made of the

victims’ examinations.

Ross stated that because the allegations had not been made within seventy-two hours

of the sexual abuse, the victims were seen at the Our Kids Center office on Hayes Street

instead of at the hospital. Ross explained that a rape kit was not performed because of the

length of time since the last instance of abuse.

According to the report, K.C. said she had sexual contact with the appellant “dating

back to May of ‘07.” K.C. reported “penile-vaginal penetration[,] . . . digital contact with

the breast, penile contact to her hands, and oral contact to her genitalia.” K.C. was tested for

pregnancy and sexually transmitted diseases. The tests were negative.

Ross testified that K.C.’s physical examination revealed a “hymenal transection,”

which indicated that “there ha[d] been penetrating trauma to the area” consistent with K.C.’s

allegations of penile penetration. K.C. also reported that after the first incident of abuse, she

felt a burning sensation when she urinated and pain when she walked. Ross opined that these

symptoms were also consistent with sexual abuse.

Ross stated that A.C. also reported penile-vaginal contact and/or penetration;

however, the physical examination revealed no findings of sexual abuse. Ross asserted that

findings indicating “blunt penetrating trauma” were “the exception. It’s not the norm.” She

said that medical personnel are typically unable to find physical evidence to support sexual

abuse claims.

The victims’ father testified that he, his wife, and his daughters moved from Chicago

to Nashville on June 17, 2006, to be closer to his mother; his brother, the appellant; and his

sisters. He said he encouraged the victims to bond with the appellant, thinking the appellant

would be as protective of the children as he was. He stated that he had no reason not to trust

the appellant.

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The victims’ father said that he knew the appellant had a back injury and was on

disability. However, he said the appellant never displayed any noticeable signs of pain.

Around November 30, 2007, the victims’ father learned that the appellant had

molested K.C. and A.C. He said that his first reaction “was not a very humane one”;

however, he promised the victims that he would not kill the appellant. Instead, he agreed to

wear a body wire for police.

The sole defense witness was Craig Glisan, the Assistant Director of Nursing at the

CJC. He said that the appellant’s medical chart reflected that the appellant had a

laminectomy in the lumbar region of his spine because of degenerative disk disease. He said

that degenerative disk disease could cause symptoms such as numbness in the lower

extremities, moderate to severe intermittent pain, or decreased flexibility in the lower back.

He also stated that a male suffering from degenerative disk disease could have sexual

difficulty or dysfunction which could affect the ability to have an erection or the strength of

the erection. However, Glisan stated that while the appellant was confined in the CJC, he

never reported any symptoms other than pain and numbness in his left foot.

Regarding K.C., the jury found the appellant guilty of seven counts of rape by fraud,

a Class B felony; seven counts of statutory rape by an authority figure, a Class C felony; and

seven counts of assault, a Class A misdemeanor, as a lesser-included offense of rape.

Regarding A.C., the jury convicted the appellant of three counts of rape of a child, a Class

A felony. The trial court imposed a sentence of twenty years for each rape of a child

conviction, ten years for each rape by fraud conviction, three years for each statutory rape by

an authority figure conviction, and eleven months and twenty-nine days for each assault

conviction. The court merged the assault and statutory rape convictions relating to K.C. into

the rape by fraud convictions and ordered that the sentences for rape by fraud be served

consecutively. The court further ordered that the sentences for rape of a child be served

consecutively to each other and consecutively to the rape by fraud sentences, for a total

effective sentence of 130 years.

On appeal, the appellant argues that the trial court erred by denying his motion to

sever, that the trial court erred by denying his motion to exclude the pornographic videos

found in his bedroom, that the evidence was insufficient to sustain his convictions of rape

by fraud and statutory rape by an authority figure, and that the trial court erred in sentencing.

II. Analysis

A. Timeliness of the Notice of Appeal

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Initially, we must address the State’s contention that the appeal should be dismissed

for failure to file a timely notice of appeal. The record reflects that the trial court entered an

order denying the appellant’s motion for new trial on September 4, 2009. On November 13,

2009, the trial court entered an order appointing appellate counsel and allowing the appellant

to proceed with his appeal to this court. The appellant filed a notice of appeal that same day.

The State contends that the trial court lost jurisdiction over the case on October 4, 2009,

thirty days after the entry of the order denying the appellant’s motion for new trial, and,

therefore, that the court’s order appointing appellate counsel was a nullity. The State further

contends that because appellate counsel filed a notice of appeal on November 13, 2009,

beyond the thirty-day time limit for filing, the notice was untimely.

Rule 3(b) of the Tennessee Rules of Appellate Procedure provides that a criminal

defendant may appeal to this court following “a final judgment in a . . . post-conviction

proceeding.” Rule 4(a) of the Tennessee Rules of Appellate Procedure instructs that

the notice of appeal required by Rule 3 shall be filed with and

received by the clerk of the trial court within 30 days after the

date of entry of the judgment appealed from; however, in all

criminal cases the “notice of appeal” document is not

jurisdictional and the filing of such document may be waived in

the interest of justice.

Clearly, the appellant’s notice of appeal was filed beyond the thirty-day time limit.

However, this court may waive the timely filing. In the interest of justice, we will excuse the

late filing and address the appellant’s issues.

B. Severance

The appellant was charged in a multi-count indictment with the offenses involving

K.C., A.C., and V.C. Prior to trial, the appellant filed a motion to sever the counts relating

to each victim. The appellant argued that the counts did not involve a common scheme or

plan and “that evidence of each set of alleged offenses would [not] be admissible upon a trial

of the others.”

At the severance hearing, Eric Fitzgerald, a detective with the Metro Sex Crimes Unit,

testified that he assisted in the investigation of the charges against the appellant. Detective

Fitzgerald said that there were allegations that the appellant molested his nieces, K.C. and

A.C., in his bedroom. Detective Fitzgerald said that “[a]s far as how it would have transpired

it was, kind of, the same with all of them.” He said the appellant told the victims that he was

weak and ill, that he had magic powers, and that he needed the victims to help him rejuvenate

by having sex with him.

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Detective Fitzgerald stated that the appellant told K.C. that her mother might die

during surgery and that he needed to have sex in order to have the powers necessary to heal

her mother. He also told K.C. that she needed to have sex with him so that he would have

to power to heal A.C. after her knee surgery. The appellant told K.C. that he believed she

was the reincarnation of his deceased girlfriend.

Detective Fitzgerald stated that both K.C. and A.C. said the appellant showed them

“carto[o]n porno.” Police discovered pornographic videos in the appellant’s bedroom in the

location the victims described. Detective Fitzgerald said that when the victims’ father wore

a body wire, the appellant admitted to him that he had watched pornographic videos with the

victims and had molested them.

Detective Fitzgerald said that both of the victims were virgins with limited sexual

knowledge prior to being abused by the appellant. Additionally, the appellant used a

blindfold on both victims.

The State conceded that the count involving V.C. should be severed. However, the

State argued that the offenses involving K.C. and A.C. were part of a common scheme or

plan because the appellant told both victims that he had magic powers and that he needed sex

to alleviate his pain. Additionally, the appellant blindfolded them and showed both of them

pornographic videos. Further, all but one offense with each victim occurred in the

appellant’s bedroom. The State argued that the evidence of offenses involving each victim

would be admissible at the trial of the other because “[i]t establishes a complete picture for

the jury of the relationships between the parties.” Further, the State contended that the

appellant’s confession to the victims’ father related to both victims. The appellant argued

that the incidents were similar but that the sexual acts were separate.

At the conclusion of the severance hearing, the trial court said,

You know, I hear a lot of these case[s] and the Court

ordinarily will grant a severance in a case similar to this. But

the Court believes that this does present a case where there is a

common scheme or plan; and, so, the trial involving [K.C.] and

[A.C.] will be tried together.

On appeal, the appellant argues that the trial court erred in denying his motion to

sever. Specifically, the appellant contends that in order to consolidate the offenses involving

K.C. and A.C., the trial court was required to find that there was a “common scheme or plan”

and that evidence of one crime would be admissible in the trial of the other. The appellant

contends that neither requirement was met. The State concedes that the trial court erred in

failing to sever the offensesinvolving K.C. from the offensesinvolving A.C., acknowledging

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that the trial court failed to find that the evidence of the charges involving one victim would

be admissible in the trial involving the other victim. However, the State maintains that this

error was harmless.

Rule 8(b) of the Tennessee Rules of Criminal Procedure states that two or more

offenses may be consolidated for trial if “the offenses constitute parts of a common scheme

or plan” or if “they are of the same or similar character.” See Tenn. R. Crim. P. 8(b). Rule

13(b) provides that the trial court may order severance of offenses prior to trial if such

severance could be obtained on motion of a defendant or the State pursuant to Rule 14. See

Tenn. R. Crim. P. 13(b). Tennessee Rule of Criminal Procedure 14(b)(1) provides that “[i]f

two or more offenses have been joined or consolidated for trial pursuant to Rule 8(b), the

defendant has the right to a severance of the offenses unless the offenses are part of a

common scheme or plan and the evidence of one would be admissible in the trial of the

others.”

Our supreme court has held that “decisions to consolidate or sever offenses pursuant

to Rules 8(b) and 14(b)(1) are to be reviewed for an abuse of discretion.” State v. Shirley,

6 S.W.3d 243, 247 (Tenn. 1999). “A holding of abuse of discretion reflects that the trial

court’s logic and reasoning was improper when viewed in light of the factual circumstances

and relevant legal principles involved in a particular case.” State v. Moore, 6 S.W.3d 235,

242 (Tenn. 1999). As a trial court must decide the motion based solely upon evidence

adduced at the hearing on the motion, this court should look to that evidence and the trial

court’s findings of fact and conclusions of law to determine whether the trial court’s ruling

was an abuse of discretion. Spicer v. State, 12 S.W.3d 438, 445 (Tenn. 2000).

In examining a trial court’s determination on a severance issue, the primary

consideration is whether the evidence of one offense would be admissible in the trial of the

other if the offenses remained severed. Id. Our supreme court has emphasized the need to

establish the “substantial interrelationship between the evidence required to prove each of

several offenses.” State v. Johnson, 342 S.W.3d 468, 475 (Tenn. 2011). Specifically, the

court noted that “when ‘the proof or defense of one charge necessarily involves the proof or

defense of another charge, sequential prosecutions of the two charges burden both the

defendant and the state with repetitive presentation of evidence.’” Id. (quoting People v.

Rogers, 742 P.2d 912, 919 (Colo. 1987)).

Essentially, “any question as to whether offenses should be tried separately pursuant

to Rule 14(b)(1) is ‘really a question of evidentiary relevance.’” Spicer, 12 S.W.3d at 445

(quoting Moore, 6 S.W.3d at 239). As such, the trial court must determine from the evidence

presented that:

(1) the multiple offenses constitute parts of a common scheme

-12-
or plan, (2) evidence of [the] offense is relevant to some

material issue in the trial of . . . the other offenses, and (3) the

probative value of the evidence of other offenses is not

outweighed by the prejudicial effect that admission of the

evidence would have on the defendant.

Id. (citations omitted); see also State v. Dotson, 254 S.W.3d 378, 386 n.5 (Tenn. 2008).

In the instant case, the trial court found that the offenses were part of a common

scheme or plan. Generally, common scheme or plan evidence falls into one of three

categories:

(1) offenses that reveal a distinctive design or are so similar as

to constitute “signature” crimes; (2) offenses that are part of a

larger, continuing plan or conspiracy; and (3) offenses that are

all part of the same criminal transaction.

Moore, 6 S.W.3d at 240. Our supreme court has stated that “[e]ven though offenses may be

similar in many respects, they cannot be classified as signature crimes if they lack a distinct

modus operandi.” Shirley, 6 S.W.3d at 248.

Furthermore, this court has previously noted, “A common scheme or plan for

severance purposes is the same as a common scheme or plan for evidentiary purposes.” State

v. Hoyt, 928 S.W.2d 935, 943 (Tenn. Crim. App. 1995), overruled on other grounds by

Spicer, 12 S.W.3d at 447. Under Tennessee Rule of Evidence 404(b), evidence that a

defendant committed a harmful act other than the one for which he is on trial may be

admissible. See Neil P. Cohen et al., Tennessee Law of Evidence, § 4.04[7][a] (LEXIS

publishing, 5th ed. 2005).

In the instant case, the proof adduced at the severance hearing revealed that after

earning his nieces’ trust, the appellant exploited his relationship with them to gain sexual

favors. The appellant told both victims that he had magic powers and that he could

rejuvenate himself by having sex with them. He told both victims that he was in pain and

required sex to alleviate his pain. He showed both victims pornographic videos and

blindfolded them. Based upon the foregoing, we agree with the trial court that the instant

offenses were part of a common scheme or plan.

However, as the State acknowledges, the trial court made no specific findings

regarding the admissibility of the offenses involving K.C. in the trial of the offenses

involving A.C. or vice versa. The State concedes that this was error. We agree.

-13-
Regardless, the State contends that the error in denying the appellant’s motion for

severance was harmless. Our supreme court has explained that to determine harmless error

in severance cases, the proper inquiry “is to determine what harm, if any, the [appellant]

suffered as a result of the improper joinder of the offenses and whether the gravity of the

error warrants a new trial.” Dotson, 254 S.W.3d at 388. As the Dotson court explained, no

conviction should be reversed on appeal “except for errors which affirmatively appear to

have affected the result of the trial on its merits.” Id. (internal quotations omitted); see

also Tenn. R. App. P. 36(b). When determining the effect of an error, “considering the whole

record, [t]he more the proof exceeds that which is necessary to support a finding of guilt

beyond a reasonable doubt, the less likely it becomes that an error affirmatively affected the

outcome on its merits.” Id. (internal quotations omitted). In other words, “[t]he key question

is whether the error likely had an injurious effect on the jury’s decision-making process. If

the answer is yes, the error cannot be harmless.” Id. at 389.

The court in Dotson determined that the trial court erred in failing to grant Dotson’s

motion for severance. In examining the effect of the error, the court noted:

While clearly sufficient to convict on each charge, the nature of

the evidence presented against [Dotson] as to each and every

element of the two robbery charges and the two indictments for

aggravated robbery varies in quality and degree. In two of the

robberies, there were two employees who witnessed the crimes;

in each instance, one of the two victims made a positive

identification. In the others, the one employee who was

involved identified [Dotson]. At trial, however, the jury heard

the collective testimony of all four eyewitnesses on each

indictment. The similarity of the crimes, where the risk of

prejudice is higher, naturally buttressed the State’s theory on all

charges and their various elements. Because the trial court

erroneously refused to sever each indictment and provide

separate trials, our obvious concern is whether a single jury

could independently assess each charge on its individual merits.

Any inference that [Dotson] had a propensity to rob cigarette

delivery trucks would have been perfectly logical.

Id. at 389 (citation and footnote omitted).

We conclude that the instant case is distinguishable from Dotson. In Dotson, the

State’s proof was based primarily on the collective testimony of the eyewitnesses to the

offenses. As our supreme court noted, the quality and degree of the testimony varied as to

each offense. Id. The court concluded that “[t]he similarity of the crimes, where the risk of

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prejudice is higher, naturally buttressed the State’s theory on all charges and their various

elements.” Id. Such is not the case here. The appellant admitted to the victims’ father that

he committed the offenses, and the admission was recorded. The appellant also admitted his

guilt to his mother during telephone calls he made from jail. Both victims testified in detail

about the offenses, describing the manner in which the appellant persuaded them. Further,

there were physical findings supporting K.C.’s version of events. Explaining its conclusion

in Dotson, our supreme court stated that “we cannot be sure as to what evidence might have

tipped the scales in favor of the State” and surmised that the jury likely convicted Dotson

based upon his propensity to commit such crimes. Id. at 390. Unlike Dotson, the appellant’s

admission of guilt in the instant case was a critical factor, leading us to conclude that the jury

did not rely upon propensity evidence to convict the appellant.

Finally, we note that the jury convicted the appellant of assault of K.C. as a lesserincluded offense of rape. This verdict is a clear indication that the jury evaluated each charge

and reached a verdict based on the individual proof of each offense. We conclude that the

error in failing to sever the offenses did not have “an injurious effect on the jury’s decisionmaking process.” Id. at 389. Therefore, we conclude that the error was harmless.

C. Admission of Videos

The appellant next contends that the trial court erred in denying his motion to exclude

the pornographic videos which were found in his bedroom. The appellant argues that the

evidence was inadmissible under Tennessee Rule of Evidence 404(b) which “specifically

prohibits the State from introducing evidence of [a] person’s character or a trait of character

or other acts in order to show action in conformity with the character trait.” In the

alternative, the appellant argues that the videos should have been excluded under Rule 403

because the probative value of the videos was outweighed by their prejudicial effect.

Prior to trial, the appellant filed a motion to exclude under Tennessee Rule of

Evidence 404(b) pornographic videos that police seized from his bedroom. At the hearing

on the motion, the State did not address the Rule 404(b) issue but argued that the videos were

relevant because the appellant played the videos for the victims “to set their minds at ease

or to give them something else to think about while they were having sex.”

The trial court stated,

As a general rule most courts keep out prior bad acts. But these

particular acts don’t appear as really prior bad acts. These are

acts that are occurring during this time period where these

events allegedly occurred. And if, in fact, the young ladies saw

these tapes the Court believes that it is relevant. . . . I don’t fit

-15-
[the videos] into the 404 category because it is something

occurring apparently simultaneously with the other alleged acts.

The record reflects that the videos were not played for the jury; instead, K.C. was

shown the video covers. She read the titles aloud and identified them as the videos the

appellant played for her. The titlesincluded “First Time Teens, Teenage Heartbreakers, Teen

Dream Number Thirteen, [and] Young as They Come.”

The admissibility of evidence generally lies within the sound discretion of the trial

court, and an appellate court will not interfere with the lower court’s exercise of that

discretion absent a clear showing of abuse. State v. Carruthers, 35 S.W.3d 516, 574 (Tenn.

2000). The trial court’s discretion in determining the admissibility of evidence is generally

circumscribed by the Tennessee Rules of Evidence, including evidentiary rules of relevance.

Tennessee Rule of Evidence 402 provides that “[a]ll relevant evidence is admissible except

as [otherwise] provided. . . . Evidence which is not relevant is not admissible.” “‘Relevant

evidence’ means evidence having any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than it would

be without the evidence.” Tenn. R. Evid. 401; see also State v. Kennedy, 7 S.W.3d 58, 68

(Tenn. Crim. App. 1999). However, even relevant evidence “may be excluded if its

probative value is substantially outweighed by the danger of unfair prejudice, confusion of

the issues, or misleading the jury, or by considerations of undue delay, waste of time, or

needless presentation of cumulative evidence.” Tenn. R. Evid. 403.

Tennessee Rule of Evidence 404 provides as follows:

(b) Other Crimes, Wrongs, or Acts. - Evidence of other

crimes, wrongs, or acts is not admissible to prove the character

of a person in order to show action in conformity with the

character trait. It may, however, be admissible for other

purposes. The conditions which must be satisfied before

allowing such evidence are:

(1) The court upon request must hold a hearing outside

the jury’s presence;

(2) The court must determine that a material issue exists

other than conduct conforming with a character trait and must

upon request state on the record the material issue, the ruling,

and the reasons for admitting the evidence;

-16-
(3) The court must find proof of the other crime, wrong,

or act to be clear and convincing; and

(4) The court must exclude the evidence if its probative

value is outweighed by the danger of unfair prejudice.

See also State v. Thacker, 164 S.W.3d 208, 240 (Tenn. 2005), State v. Parton, 694 S.W.2d

299, 302 (Tenn. 1985). A trial court’s decision regarding the admission of Rule 404(b)

evidence will be reviewed under an abuse of discretion standard; however, “the decision of

the trial court should be afforded no deference unless there has been substantial compliance

with the procedural requirements of the Rule.” State v. DuBose, 953 S.W.2d 649, 652 (Tenn.

1997).

Generally, “[o]nly in an exceptional case will another crime, wrong, or bad act be

relevant to an issue other than the accused’s character. Such exceptional cases include

identity, intent, motive, opportunity, or rebuttal of mistake or accident.” State v. Luellen, 867

S.W.2d 736, 740 (Tenn. Crim. App. 1992). In making its decision regarding the admissibility

of the testimony, the trial court must first determine if the offered testimony is relevant to

prove something other than the appellant’s character.

The trial court found, and the State argues on appeal, that the videos were not prior

bad acts because the appellant did not play them for the victims prior to the offenses. Instead,

he played the videos “simultaneously” with the offenses.

The goal of Rule 404(b) is to bar character evidence regarding other acts which are

“used to prove that a criminal accused acted in conformity with character”; in other words,

the rule prohibits evidence used to prove the accused’s propensity to commit the crime.

Cohen, Tennessee Law of Evidence § 4.04[7][a]. In the instant case, the pornographic videos

were not used to show the appellant’s propensity to commit the crimes. The videos were

used to corroborate the testimony of the victims, both of whom testified that the appellant

showed them the pornographic videos prior to and while molesting them. Therefore, the

videos were not evidence of another bad act; the videos were evidence of the instant crimes.

See State v. Terry Stewart Moore, No. E2001-00153-CCA-R3-CD, 2002 WL 1787947, at

*9 (Tenn. Crim. App. at Knoxville, Aug. 2, 2002) (concluding that evidence of defendant’s

conduct did not violate Rule 404(b) because “[t]he conduct was . . . not a prior bad act but

a concurrent bad act inseparable from the commission of the crime”). Accordingly, we

conclude the trial court did not err in admitting the videos under Rule 404(b).

Turning to the appellant’s argument that the videos were inadmissible pursuant to

Tennessee Rule of Evidence 403, we again note that the videos were used to corroborate the

victims’ testimony. Moreover, only the covers of the videos were shown to the jury; the

-17-
videos were not played in court. Therefore, the prejudicial effect of the videos was minimal.

We conclude that the trial court did not err in finding that the videos were admissible.

D. Sufficiency of the Evidence

The appellant contends that the evidence was insufficient to sustain his convictions

for rape by fraud and statutory rape by an authority figure. On appeal, a jury conviction

removes the presumption of the appellant’s innocence and replaces it with one of guilt, so

that the appellant carries the burden of demonstrating to this court why the evidence will not

support the jury’s findings. See State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). The

appellant must establish that no reasonable trier of fact could have found the essential

elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307,

319 (1979); Tenn. R. App. P. 13(e).

Accordingly, on appeal, the State is entitled to the strongest legitimate view of the

evidence and all reasonable inferences which may be drawn therefrom. See State v.

Williams, 657 S.W.2d 405, 410 (Tenn. 1983). In other words, questions concerning the

credibility of witnesses and the weight and value to be given the evidence, as well as all

factual issues raised by the evidence, are resolved by the trier of fact, and not the appellate

courts. See State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990).

1. Rape by Fraud

To sustain the appellant’s rape by fraud convictions, the State was required to prove

that the appellant engaged in unlawful sexual penetration of the victim and that the sexual

penetration was accomplished by fraud. See Tenn. Code Ann. § 39-13-503(a)(4). Sexual

penetration includes “sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other

intrusion, however slight, of any part of a person’s body or of any object into the genital or

anal openings of the victim’s, the defendant’s, or any other person’s body, but emission of

semen is not required.” Tenn. Code Ann. § 39-13-501(7). Regarding the rape by fraud

convictions in counts 2, 5, 8, 11, and 14, K.C. testified that the appellant penetrated her

vagina with his penis on five separate occasions. For the conviction in count 17, K.C.

testified that the appellant performed cunnilingus on her. For the conviction in count 20,

K.C. testified that the appellant digitally penetrated her.

Tennessee Code Annotated section 39-11-106(a)(13) provides that “‘[f]raud’ means

as used in normal parlance and includes, but is not limited to, deceit, trickery,

misrepresentation and subterfuge, and shall be broadly construed to accomplish the purposes

of this title.” This court has previously observed that

the Tennessee Supreme Court has set forth its interpretation of

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the term “fraud” by stating that, “[a] person acts fraudulently

when (1) the person intentionally misrepresents an existing,

material fact or produces a false impression, in order to mislead

another or to obtain an undue advantage, and (2) another is

injured because of reasonable reliance upon that representation.”

State v. Raymond Mitchell, III, No. M1996-00008-CCA-R3-CD, 1999 WL 559930, at *5

(Tenn. Crim. App. at Nashville, July 30, 1999) (quoting Hodges v. S.C. Toof & Co., 833

S.W.2d 896, 901 (Tenn. 1992)). Rape by fraud is a Class B felony. Tenn. Code Ann. § 39-

13-503(b).

In the instant case, the appellant induced K.C. to have sex with him by telling her that

he had magic powers and could give her magic powers through sex. The appellant argues

that K.C. should not have believed his claims, especially after the first time when she failed

to gain the magic powers. However, the appellant repeatedly told K.C., a fourteen-year-old

child, that he was weak, in pain, and would die if she did not have sex with him. The

appellant used a “magic” candle to convince her of his powers and threatened to haunt her

after his death. The appellant further told K.C. that she needed to have sex with him to grant

him sufficient power to heal her mother and A.C. after they had surgery; otherwise, they

would be crippled or die. We conclude that the appellant’s inducements constitute “fraud”

and that the jury had sufficient evidence to convict the appellant of the rape by fraud of K.C.

2. Statutory Rape by an Authority Figure

The appellant does not dispute that K.C. was fourteen years old at the time of the

offenses or that the acts of penetration did not occur. Instead, he contends that “a plain

reading of the statute indicates that the [appellant’s] position of trust has to be created by

‘virtue of the [appellant’s] legal, professional, or occupational status and used the position

of trust or power to accomplish the sexual penetration.’” Additionally, he contends that the

State failed to prove he was in a position of trust over K.C. because the evidence at trial

established that he was only K.C.’s “friend.”

Tennessee Code Annotated section 39-13-532 provides as follows:

(a) Statutory rape by an authority figure is the unlawful sexual

penetration of a victim by the defendant . . . when:

(1) The victim is at least thirteen (13) but less than

eighteen (18) years of age;

(2) The defendant is at least four (4) years older than the

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victim; and

(3) The defendant was, at the time of the offense, in a

position of trust, or had supervisory or disciplinary power over

the victim by virtue of the defendant’s legal, professional or

occupational status and used the position of trust or power to

accomplish the sexual penetration; or

(4) The defendant had, at the time of the offense, parental

or custodial authority over the victim and used the authority to

accomplish the sexual penetration.

Statutory rape by an authority figure is a Class C felony. Tenn. Code Ann. § 39-13-532(b).

Statutory rape by an authority figure required that at the time of the offenses, the

appellant was in a position of trust, or had supervisory or disciplinary power over the victim

by virtue of the appellant’s legal, professional or occupational status. Tenn. Code Ann. § 39-

13-532(a)(3). The State was not required to prove both.

Regarding a position of trust, our supreme court has stated,

The position of parent, step-parent, babysitter, teacher, coach

are but a few obvious examples. The determination of the

existence of a position of trust does not depend on the length or

formality of the relationship, but upon the nature of the

relationship. Thus, the court should look to see whether the

offender formally or informally stood in a relationship to the

victim that promoted confidence, reliability, or faith.

State v. Kissinger, 922 S.W.2d 482, 488 (Tenn. 1996).

The appellant claims that the proof showed he was only K.C.’s “friend.” However,

the evidence at trial established that the victims’ parents entrusted him with the victims’ care.

The victims’ father testified that he thought the appellant would take care of the victims as

if they were the appellant’s own children. Moreover, the appellant cultivated a relationship

with the victims by showing interest in their hobbies, such as music and religion. After he

formed a bond of trust with them, he exploited that bond and persuaded them to have sex

with him. We conclude that the proof was sufficient to sustain the appellant’s convictions

for statutory rape by an authority figure of K.C.

E. Sentencing

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The appellant challengesthe trial court’simposition of an effective 130-yearsentence,

one hundred percent of which must be served in confinement. Specifically, he argues that

the trial court erred in determining the length of each individual sentence and in ordering

consecutive sentencing.

Appellate review of the length, range or manner of service of a sentence is de novo.

See Tenn. Code Ann. § 40-35-401(d). In conducting its de novo review, this court considers

the following factors: (1) the evidence, if any, received at the trial and the sentencing

hearing; (2) the presentence report; (3) the principles of sentencing and arguments as to

sentencing alternatives; (4) the nature and characteristics of the criminal conduct involved;

(5) evidence and information offered by the parties on enhancement and mitigating factors;

(6) any statistical information provided by the administrative office of the courts as to

sentencing practices for similar offenses in Tennessee; (7) any statement by the appellant in

his own behalf; and (8) the potential for rehabilitation or treatment. See Tenn. Code Ann.

§§ 40-35-102, -103, -210; see also State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991). The

burden is on the appellant to demonstrate the impropriety of his sentence. See Tenn. Code

Ann. § 40-35-401, Sentencing Comm’n Cmts. Moreover, if the record reveals that the trial

court adequately considered sentencing principles and all relevant facts and circumstances,

this court will accord the trial court’s determinations a presumption of correctness. Id. at (d);

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

1. Length of Sentence

In determining a specific sentence within a range of punishment, the trial court should

consider, but is not bound by, the following advisory guidelines:

(1) The minimum sentence within the range of

punishment is the sentence that should be imposed, because the

general assembly set the minimum length of sentence for each

felony class to reflect the relative seriousness of each criminal

offense in the felony classifications; and

(2) The sentence length within the range should be

adjusted, as appropriate, by the presence or absence of

mitigating and enhancement factors set out in §§ 40-35-113 and

40-35-114.

Tenn. Code Ann. § 40-35-210(c).

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Although the trial court should also consider enhancement and mitigating factors, the

statutory enhancement factors are advisory only. See Tenn. Code Ann. § 40-35-114; State

v. Carter, 254 S.W.3d 335, 343-44 (Tenn. 2008). We note that “a trial court’s weighing of

various mitigating and enhancement factors [is] left to the trial court’s sound discretion.”

Carter, 254 S.W.3d at 345. In other words, “the trial court is free to select any sentence

within the applicable range so long as the length of the sentence is ‘consistent with the

purposes and principles of [the Sentencing Act].’” Id. at 343.

[A]ppellate courts are therefore left with a narrower set of

circumstances in which they might find that a trial court has

abused its discretion in setting the length of a defendant’s

sentence . . . [and are] bound by a trial court’s decision as to the

length of the sentence imposed so long as it is imposed in a

manner consistent with the purposes and principles set out in

sections -102 and -103 of the Sentencing Act.

Id. at 345-46.

In the instant case, the appellant was convicted of three counts of rape of a child, a

Class A felony, see Tenn. Code Ann. § 39-13-522(b); seven counts of rape by fraud, a Class

B felony, see Tenn. Code Ann. § 39-13-503(b); seven counts of statutory rape by an authority

figure, a Class C felony, see Tenn. Code Ann. § 39-13-532(b); and seven counts of assault,

a Class A misdemeanor; see Tenn. Code Ann. § 39-13-101(b)(1). Generally, a standard,

Range I offender is subject to a sentence of fifteen to twenty-five years for a Class A felony,

eight to twelve years for a Class B felony, and three to six years for a Class C felony. See

Tenn. Code Ann. § 40-35-112(a)(1)-(3). The maximum sentence that can be imposed for a

Class A misdemeanor conviction is eleven months, twenty-nine days. See Tenn. Code Ann.

§ 40-35-111(e)(1).

At the sentencing hearing, the trial court found the following enhancement factors

applicable:

(1) The [appellant] has a previous history of criminal

convictions or criminal behavior in addition to those necessary

to establish the appropriate range;

(3) The offense involved more than one (1) victim;

(4) A victim of the offense was particularly vulnerable because

of age or physical or mental disability; and

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(7) The offense involved a victim and was committed to gratify

the [appellant’s] desire for pleasure or excitement.

Tenn. Code Ann. § 40-35-114(1), (3), (4), (7).

In applying the foregoing enhancement factors, the trial court imposed a sentence of

twenty years for each rape of a child conviction, ten years for each rape by fraud conviction,

three years for each statutory rape by an authority figure conviction, and eleven months and

twenty-nine days for each assault conviction. The court merged the assault and statutory rape

convictions into the rape by fraud convictions, all of which related to K.C.

The appellant contends, and the State concedes, that the trial court misapplied

enhancement factors (3) and (4). Regarding factor (3), that the offense involved more than

one victim, our supreme court has held that a trial court cannot apply that factor where the

charge is necessarily limited to a specific, named victim. See State v. Imfeld, 70 S.W.3d 698,

705-06 (Tenn. 2002). Because there was a specific, named victim in each offense for which

the appellant was convicted, we agree that the trial court improperly applied enhancement

factor (3).

Regarding factor (4), the particularly vulnerability of a victim, we note that the trial

court may apply this factor in child sexual abuse cases; however, the factor “relates more to

the natural physical and mental limitations of the victim than merely to the victim’s age.”

State v. Adams, 864 S.W.2d 31, 35 (Tenn. 1993). In other words, “[t]he factor can be used

in [a child sexual abuse] case if the circumstances show that the victim, because of his [or

her] age or physical or mental condition, was in fact ‘particularly vulnerable,’ i.e., incapable

of resisting, summoning help, or testifying against the perpetrator.” Id. In the instant case,

the victims were fourteen and eleven years old at the time of the offenses. Nevertheless,

there was no indication that they were incapable of resisting, summoning help, or testifying

against the appellant. Therefore, the trial court should not have applied this enhancement

factor.

Regardless, the trial court properly applied two enhancement factors. First, the trial

court applied enhancement factor (1) based upon the appellant’s testimony at the sentencing

hearing that he had used marijuana for approximately twenty years, demonstrating a history

of criminal behavior.

Further, our supreme court has explained that when dealing with sexual crimes and

the application of enhancement factor (7), concerning the appellant’s desire for sexual

arousal or gratification, the trial court must look to the appellant’s “motive for committing

the offense.” State v. Arnett, 49 S.W.3d 250, 261 (Tenn. 2001) (emphasis in original). The

-23-
court cautioned that “evidence of ejaculation, by itself, does not prove that the [appellant’s]

motive was to gratify a desire for pleasure. Accordingly, proper application of factor (7)

requires the State to provide additional objective evidence of the [appellant’s] motivation to

seek pleasure or excitement through sexual assault.” Id. at 262 (citing State v. Kissinger, 922

S.W.2d 482, 490 (Tenn. 1996)). To this end, the court explained that “factor (7) may be

applied with evidence including, but not limited to, sexually explicit remarks and overt

sexual displays made by the defendant, such as fondling or kissing a victim or otherwise

behaving in a sexual manner, or remarks or behavior demonstrating the [appellant’s]

enjoyment” of the crime. Id.

K.C. testified that the appellant made her kiss him and that he fondled her breasts

when he molested her. K.C. also stated that each time, the appellant claimed he needed to

“finish,” meaning have an orgasm. On one occasion, when K.C. was unable to “help” the

appellant “finish,” he asked A.C. to assist him. A.C. testified that the appellant asked her to

have sex because he was “horny.” Additionally, both victims testified that the appellant

showed them pornographic videos. Therefore, the trial court did not err in applying

enhancement factor (7). Although the trial court misapplied enhancement factors(3) and (4),

we conclude that the appellant’s twenty-year sentences for rape of a child and ten-year

sentences for rape by fraud were proper in this case.

2. Consecutive Sentencing

Generally, “[w]hether sentences are to be served concurrently or consecutively is a

matter addressed to the sound discretion of the trial court.” State v. Adams, 973 S.W.2d 224,

230-31 (Tenn. Crim. App. 1997). Tennessee Code Annotated section 40-35-115(b) contains

the discretionary criteria for imposing consecutive sentencing. See also State v. Wilkerson,

905 S.W.2d 933, 936 (Tenn. 1995).

In the instant case, the trial court ordered that the appellant’s ten-year sentences for

rape by fraud be served consecutively to each other. The court further ordered that the

twenty-year sentences for rape of a child be served consecutively to each other and

consecutively to the rape by fraud sentences, for a total effective sentence of 130 years. The

trial court imposed consecutive sentencing upon finding that the appellant was

convicted of two (2) or more statutory offenses involving sexual

abuse of a minor with consideration of the aggravating

circumstances arising from the relationship between the

[appellant] and victim or victims, the time span of [appellant’s]

undetected sexual activity, the nature and scope of the sexual

acts and the extent of the residual, physical and mental damage

-24-
to the victim or victims.

Tenn. Code Ann. § 40-35-115(b)(5).

Rape of a child is an offense involving the sexual abuse of a minor. Further, the

appellant’s convictions for rape by fraud involved a fourteen-year-old victim. The record

reveals that the appellant actively sought to gain the victims’ trust which he then exploited

by convincing the victims to have sex with him. The appellant engaged in this course of

action for at least four months. K.C. testified that her grades started dropping because of the

abuse. Both K.C. and A.C. testified that they did not tell their parents about the abuse

because they feared their parents would no longer want them. In a victim impact statement,

the victims’ motherstated that both victims experienced nightmares and received counseling.

Therefore, the trial court did not err by imposing consecutive sentencing.

III. Conclusion

We conclude that the trial court did not err in finding that the pornographic videos

were admissible. We further conclude that the evidence was sufficient to sustain the

appellant’s convictions. Although the trial court erred in denying the appellant’s severance

motion, the error was harmless. Finally, the appellant’s 130-year sentence was appropriate.

Accordingly, the judgments of the trial court are affirmed.

_________________________________

NORMA McGEE OGLE, JUDGE

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