# FILED
June 10, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE APRIL SESSION, 1998

STATE OF TE NNE SSE E, ) C.C.A. NO. 01C01-9701- CR-00021 ) Appellee, ) ) DAVIDSON COUNTY V. ) ) ) HON. A NN LACY JOHNS, JUDGE MICHAEL DOUGLAS HUGHES, ) ) Appe llant. ) (AGGR AVATED RAPE)

FOR THE APPELLANT : FOR THE APPELLEE : SAM E . WALL ACE, JR . JOHN KNOX WALKUP 227 Se cond A venue N orth Attorney General& Reporter Nashvill e, TN 37201 TIMO THY F . BEHAN Assistant Attorney General 2nd Floor, Cordel l Hull Bui lding 425 Fifth Avenue North Nashvill e, TN 37243 VICTO R S. JO HNS ON, III Distri ct Attor ney General LI LA STATOM Assistant Distri ct Attor ney General Washington Square 222 Second Avenue North, Sui te 500 Nashvill e, TN 37201-1649

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, J UDGE-2- 

# OPINION

The Defendan t, MichaelDouglas Hughes, appeals as of ri ght from the sentencing order o f the D avidso n Cou nty Crim in al Court. The Defendant was indicted on eleven (11) counts of aggr avated rape by

the unlawfulsexual penetr ation of a child l ess than thi rteen (13) years of age. Defendantpled no contest to one (1) count of aggravated rape and guil ty to ten (10) counts of aggravated rape. The tr ial court sentenced Defendant to twenty

(20) years

for each count , with t he sentences forfour (4) of these counts to run consecut ively to each other

and the remaini ng counts to be served concurre ntly to ea ch oth er. Th e total e ffective s enten ce is eighty ( 80) ye ars. T he De fenda nt argu es the followin g on a ppea l: 1) Wh ether the trial court erre d in sente ncing him to twenty (2 0) year sentences for each count when the minimum sentence for each count is fifteen (15) years; 2) Whether the trial court er red in imposing consecutive sentences; 3) Whether the tri al court er red in consi dering unchargedsexual acts; 4) Whether the tri al court erred in properly expl aining t he use of enhancement and mitigat ing factors; and 5) Whether the indi ctments in t his case fai led to set forth t he mensrea elements of aggr

avated rape. We affirm the ju dgme nt of the trial co urt.

When an accused challenges the length, range or the manner of service of a sentence, this court has a duty to conduc t a de novo review of

the sentence wi th a presumption that the determinati ons made by the tri al court ar e correct. Tenn. Code Ann. § 40-35-401(d) . This presumpti on is “condi tioned upon the affi rmative showi ng in the record that the trial cou rt cons idered the se ntenc ing prin ciples and a ll relevant facts and circum stances.” S tatev. As hby , 823 S.W .2d 166, 169 (Tenn. 199 1).-3-

There are, however, exceptions to the presum ption of co rrectnes s. First, the record must dem onstra te that th e trial co urt con sidere d the s enten cing p rincip les and a ll relevant facts and circu mstan ces. Id
. Secon d, the pre sump tion does not app ly to the legal concl usions reached by the tri al court i n sentencing. Third, t he presumption does not apply when the determin ations made by t he trialcour t a re predicated upon u ncontro verted fac ts. State v. S mith , 898 S.W.2d 742, 745 (Tenn. 1994), perm . to appeal denied , id . (Tenn. 199 5).

At the sentencing hearing, the victim, S.E., (we wi ll refer to the v ictim of child sexual abus e by initia ls) testifie d t hat she and her mother formerly

lived wi th the Defendant and she ca lled him “D ad.” T he fir st time S.E. was touched by t he Defendant in a sexual way was when s he was four (4) yea rs old and living in North Carol ina. On that fi rst occasi on, her mother was away from home and th e Defendant was sitting in his recl iner when he asked S. E. to come and sit in his l ap. She complied, t hen Defendantaske d her to “kiss his private part, and t hen he kissed my private part.”

Defendanttold the vict im not to tell her moth er, that “it woul d be our secret.” The abuse continued at diff erent ti mes until S. E. was nine (9)years of age. The victi m described occas ions when the Defend ant would “pu t his private part inside of [ her], ins ide[he r] bottom, his fi nger insi de of [her]private part and inside of [her] bottom.” The Defendan t used cold cream in her bottom when he abuse d her. S.E. recalledthat somethi ng “dark and sl imy” came out of the D ef endant’s body during th ese eve nts.

When asked why she di d not te ll , S.E. stated that s he was afraid and that Defendant said “it was oursecre t . . . and I c onsid ered h im m y dad, s o I said this is what dad said, and I had better li sten.” The victi m told her best fri end about these-4-

events, and th at led to her mot her findi ng out about t he sexual abuse. S.E. went through therapy because of these event s, but repor

ted that s he was doing fi ne at the time of her testim ony.

Marc ia Hughes, S.E.’s motherand the Defendant’s ex-wife, first learned of t he abuse when a police de tective cam e to her pla ce of e mplo ymen t and to ld her. She tookthe victim and le ft their re siden ce wit h the Defend ant that day . Ms. Hughes stated tha t she did not hav e any

mone y an d th at w hen s he retu rne d toher home several days later , the Defendant had removed all her money and charge cardsfrom her wallet. Defendant also emptied out her bank account. Sheand S.E . stayed w ith family members unt il she got assistance f rom the Department of Human Services. Ms. Hughes recalled that the vi cti m wa s in cou nselin g at the Guid ance Cent er in Murfreesbo ro for five (5) or six (6) months. At fi rst, S. E. appeared rel ieved that the abuse stopped, but

then she was very

sorry t hat she t old because everythi ng had been taken away fr

om her. Then, t he victi m became angry, and Ms. Hughes feared thatwhen S.E. gets ol der the anger wi ll ret urn. Durin g this time period , Ms. Hughes stated that the D efendant ne ver offered to help the m and the only way they we re able to retu rn to live in their h ome w as bec ause o f a court ord er.

Jam ie Langley is

a counselor at

the Guidance Center i n Murfreesboro, Tennessee. She was involved in S.E.’s treatment which bega n in November 1991 and continued t hrough March 31, 1992. The victi m was placed in a gi rls’ s ex abuse treatment

group where she expr essed feeli ngs of anger, shame and embarrassment about the abuse that

occurred. Dur ing the sessi ons, S.E. described night mares and anxiety, but ove rall was doing well. La ngley b elieved that S.E . had b enefite d grea tly from the support of her mother and family suc h that she was bet ter equipped t

o deal-5-

with the traum a. The v ictim ask ed to disc ontinue therapy in March , and L angle y stated that this is a common p ractice as chil dren want to forget t he events which
cause them pain. I n May, S.E.’ s mother call ed to place her back into t he rapy, but theysubsequently

had to move and Langley had not seen the v ictim si nce March. Langleythoughtthat S.E. would conti nue to have probl ems regarding theabuse and possibly suffer f rom a mental healt h disorder l ater in l ife.

Dr. John Holloran testifi ed for the def ense. He is t he Direc torat New Life Lodge, a treatment center for drug and alcoholaddicti on. The Defendant wasone of his pa tients, a nd wh en he bega n treatm ent D efend ant wa s in the “cruci al stage” of alcoholi sm. Defendant abused al cohol for t wenty-five (25) year

s, dail y consuming between twelve ( 12) to twent y-four (24) beers and half a liter of scotch. Dr. Hollor

an reported that Defe ndant made every eff ort to dealwith his

disease and was an excellent p atient.

Don Roy served as Defenda nt’s sponsor in Al coholics Anony mous. Roy stated th at Def endant had terribl e remors e and gui lt r egardi ng hisabuse of S.E. Def enda nt n eve r de nie d th e ch arg es a gai nst him
.

Ron Hutcheson was Defendant’ s co-sponsor i n A lc oholics Anonymous and stated that Defendant expressed remorse f or his act ions. Defendant never denied that the events occu rred an d was willing to face tria l.

Robert Vero , the Ex ecutive Direc tor of Lu ton M ental H ealth S ervic es in Nashvill e, evalua ted D efend ant as an ad ult sexu al offender . He evaluated Defendant on two occasion s to determine his sexual predisp osition toward violence,-6-

age and gender. Vero wanted to make a determinat ion as to hi s overallrisk to the
comm unity as a know n sex o ffende r. Defe ndan t’s physiologi cal exam was broken into two parts during which he was exposed to nudit y slides of indi vidual s of both genders ranging fr

om two (2) years

of age through adulthood the n exposure to a tape of pedo philia to de termine whethe r or not De fendan t has a pro clivity tow ard violence or non-vio lence. D efenda nt s howed sexual arousal during au dio sti mulation of an ad ult with a c onse nting o r initiating child, b ut did n ot sho w any a rousa l t o forced sexual ac tivity or violence with children . In determining whether Defendant is a violent

threat t o the community, Vero determined t hat Defen dant us ed mo derate coercion practices to com mit acts o f sexual ab use.

Defendant perceives t he world throug h very di storted t hinking, making “meaning of the w orld in the way t hat he needs the world to be.” Defendant “tends to make m eaning of relations hips in the way tha t he needs to s ee relationships.” When asked why Defendant sought gratificati on through S.E. , Defendant stated that he “felt [she] did n ot love m e as m uch as her own dad. I love her so much . I don’t want to make this sou nd like an excus e, but . . . it ’s going to ma ke this child love me.” Ve ro desc ribed this s tateme nt as a cla ssic exam ple of disto rtion.

The role alc ohol p layed in the Defendant’s sex ually abusive behavior was as a disinhibitor, therefore it would no t be sufficient to remo ve alcoh ol from Defe ndan t’s life in or

der to pre vent

fur ther epis odes of sex ual a buse. Th e a lcohol al lowed Defendant to dull his inhi bitions , allowi ng him to penetrate t he victi m. As a result of his evaluation , Vero rec omm ended treatme nt for Defe nd ant’s sexually offensive behavior

and some term of incarceration. Defendant has a “goodchance at learning how to con trol his s exually abno rmal beha vior . . . but n o cha nce o f curing his-7-

sexua lly abnormal behavior. ” Defendant woul d need lifelong treatm ent, an d wou ld still require good s urveillance mech anism s for mo nitoring his behavio r in order to be a minim al risk to the c omm unity.

Defend ant adm itted to d igital fing er pen etration of the vic tim’s va gina, o ral sex , both cunnili ngus and fell atio, and penile penet ration of her labia. Defendant had no recollect ion of anal intercourse. Defendant adamantly de nied ejacul ating in the pre sence of

or i nsi de of

thevi cti m.

The Defendant testif ied that h e was a recoveri ng alcoholi c. He knew that h e had done something ter ribly wrong, but coul d not recol lect exact ly what i t was that he had done. Defendant thoughtthat he had bl acked out through most of the sexual abuse. When he found out f rom Detective Ronald Carter t hat he was ch arged w ith eleven (11) counts of rape, he was scared and did not know that he had penet rated S.E. Over a p eriod of tim e, he rec alled all that w ent on, bu t it is st ill “very cloudy.” Defendant admitted t hat the vi ctim is a very trut hful person and is a g oo d, respe ctable litt le girlwho would not l ie. Defendant beli eved that most of his cri mes were alcohol related and t hat he would never drink agai n.

Defendant felt that he was c apab le of rehabilitation and co uld be a prod uctive
mem ber of societ

y, but needed co ntinued al cohol and sexualtreatment. He was willing to do w hatever h e could p ersona lly do to help the victim.

On cross-examinat ion, Defend ant recalled that the first

instance of abuse occurred when th e vic tim was four (4) years ol d. Defendant clai med that

S.E. crawled up in his lap where he was si tti ng with his pan ts unzipped. S .E. was very-8-

curious about what a male l ooked like, and he eventual ly molested her after the victim initi ated the touchi ng and wanted to “f ind out what it was al l about.” On a later occasion, S.E. came into t he Defendant’s bedr oom while the Defendant was ly ing in bed and asked him to do al l the thi ngs to her th at he and her mothe r did. Defendant did admit to doi ng sexual thi ngs to the vi ctim with out her asking for those things to occur, but

he could not r

ecall any of these occasi ons. He recall ed that S.E. often came into his roo m witho ut wearin g any cloth es. When aske d if the vic tim initi ated the contact , Defendant stated that “she was in our bed a lot.” Defen dant d id not admi t gu il t i nit ial ly due to h is fea r an d co ncern fo r t he v ict im; he knew he had done something but did not know exactly what i t was.

The trialcourt sentenced Defendant on each o f thes e eleven (11) cou nts to
serve a term of twent

y (20) year

s in the Depart ment of Correcti on. Four (4) of these sentences were to be served consecu tivel y to each other , with t he rest to run concurrently. The totalsentence was eight y (80) years. The t rial cour t stated t hat it would reduc e to writin g the c heck list of en hanc ing fac tors tha t it relied upo n. The fact that Defendant had ack nowle dged misconduct and started the pr ocess of correcti ng his

mi s conduct wa s taken into acc ount. Cons equently, the trial court found that ther

e were signi ficant l imitati ons regarding t he mitigat ion. Regarding his credibility, Defenda nt’s mem ory was re mark ably vivid when putting the blame on the victim as h e co uld reme mber in mi nute det ails her “vario us sed uctive activities .” When asked to recall his own con duct, he conve niently blacked ou t. The trial court found this lack

of credibi lity

as impacting on the success of treatment, the need for punish ment a nd the n eed to p rotect soc iety.-9- W hile the trial cou rt recog nized the De fenda nt’s pro blem with alc ohol, it could not overlook t he fact th at if t he victi m had not reported t he abuse the n the abuse
wo uld have co ntinued. Only when Defendant was f orced to protect himself from these accusations di d he determine that he needed treatment. The trialcourt fur ther noted thatthere is an enorm ous ne ed for de terrence of this type o f criminal a ctivity in the cou rt’s jurisdiction a nd wou ld take jud icial notice o f that fact.

Our review

of this sentence is de novo , without a presumption of correctness, because the tri al court f ailed to explicitly set

forth t he enhancement factors. Tenn. Code Ann. § 40-35-210(f). By f ailingto state the relev ant findi ngs of fact , the t ri al court d id not just ify t he applicat ion of enhancement f actors and how i t determined the weig ht to which it applied ea ch of the fa ctors.

In conducting a de novo review of a sentence, t his court must consider: (a) the evidence, if any, received at trial an d the sentencing hearing; (b)the presentence report; (c) the principl es of senten cing and argum ents as to sentencing alternatives; (d) the nature and characteristics of the c riminal condu ct involved; (e) any statutory mitigati ng or enhancement factors; (f) any statement that the defendan t mad e on h is
own behalf; an d (g) the p otential or lac k of poten tial for rehab ilitation or treatm ent. Tenn. C ode An n. §§ 40 -35-102 , -103, an d -210; see State v. S mith , 735 S.W .2 d 859, 863 (T enn. Crim. A pp. 1987).
Aggravated rape is a Class A felony. Tenn . Code An n. § 39-13-50 2(b )

. Having no prior criminalrecord, Defendant was sentenced as a Range I, Sta ndard Offender, subject to a sen tence of not less th an fifteen (15) nor m ore than twen tyfive (25) years

. Tenn. Code Ann. § 40-35-112(a)(1). This offense and D efend ant’s-10-

subse quent sentencing occu rred pri or to the amendment of Tennessee Code Annotated section 40-35-210(c) which sets the presumptive sentence for a Class A felony at the midp oint of the range. T enn. Cod e Ann. § 40 -35-210(c)(19 97 Repl.). At the time of Defendant’s offen se and sentencing, the presumptive sen tence was th e minim um with in the rang e if there we re no m itigating or en hance ment f actors
. Tenn. Code Ann. § 40-35-210(c)(19 90 Repl )(repealed 19 95). If there are enhancement and mitigat ing factors, then t he court must start at t he minimum sentence, enhance the sentence as appropriate for theenhancement factor s, and then reduce the sentence wit hin the range as appropriate forthe mitigating f actors. Id . at (e).

Defendant argues that his se ntence of twenty (20) years foreach offens e is
exces sive. W hile the tri al court stated that it would set fort h written findi ngs of fact
as to the applicabl e enhancement factor s, these f indings were not establ ished within the record as requi red under Tennessee Code Anno tated s ection 40-35-2 10(f). Under our de novo review, we find the followin g factors a pplicable . First, the victim of the offens es was parti cularly vulnerabl e because ofage. Tenn. Code Ann. § 40- 35-114(4). Even though age was a n essent ial element of the crimes for which Defendant was c onvicte d, the vic tim was par ticula rly vul nerable because of her extrem ely young a ge of f our ( 4) yea rs and her vuln erability due to her rela tionsh ip with her step father. See State v. McK nig ht , 900 S.W.2d 36, 54 (Tenn. Cri m. App. 1994). Als o, the offen ses involve d a victim a nd were comm itted to gratify th e Defe ndan t’s desire for pleasu re or exciteme nt. Tenn. Co de Ann. § 4 0-35-1 14(7)

. Testi mony was given descr ibing Defendant’s ejacul ation duri ng these episodes of abuse and that Defend ant was evaluated and determined to have sexual arousal
a nd pleasure from consen sual sexual ac tivities with young fema le children. Pleasu re-11-

or excitement i s not an essenti al element of the offens e of rape and, therefore, may be considered as an ap propriate enhan ceme nt factor. State v. Adams , 864 S.W.2d 31, 35 (Te nn. 199 3) (citations omitted)

. Finally, the Defendant abused a positi on of private trust when com mit ting these offense s. Tenn. C ode Ann . § 40-35-114 (15). The victi m testifi ed that the Defendant to ld her thi s was “our secret” and that she considere d him her dad, so she “had bet ter li sten.” The Defendan t’s status as stepfather

while liv ing with the vi ct im’s mother is a suffici ent basis for sentence enhan ceme nt unde r factor (15 ). Adams , 864 S.W.2d at 34.

The only appli cable miti gating fac tor, onewhich the trial c ourt did mention at the conclusion of

the hearing, is the Defendant’s remorse fo r hi s a ctions. Tenn. Code Ann. § 40-35-113( 13). As the t rial cour t correct ly stated, this mitigati ng factor shou ld not be given much weight as Defenda nt w ould sti ll probably be committi ng these offens es if the victim had n ot told of the abuse. Furthermore, the Defendant insisted at the sentencing heari ng thatthe victim initiated thes e sexua l offenses . It is evident t hat Defendant has not yet taken the responsibil ity for hi s heinous actions.

Under our de novo review, the sentence of twenty (20) years is approp riate given the appli cation of three (3) enha ncem ent fac tors. T he evid ence of Def enda nt’s repeated course of sex ual ab use of t he victi m over a five (5) year pe riod and the resulti ng emotiona l injuries fully support this senten ce. Defend ant urges this co urt to consider his p otenti al for r ehabili tation, but the eval uation of Defendant proved thathe mig ht com mit sexu al offense s at a later d ate . De fen dant’s cont inu ed bl ame of the vict im for the occurrence of t hese sexual epi sodes is eviden ce of his l ack of respon sibility for his actions, and this di rectly bears upon his potential f or rehabili tation. Defendant argues t ha t the t rial cour t considered uncharged sexual-12-

acts when sentencing t he Defendant. We can find no evidence of this i n the record. The Defendant’s sen tence oftwenty (20) years for each sentence was approp riate, and the se issue s have n o merit.

Defendant also contest s the conse cutive natu re of these senten ces. Four (4) of the eleven ( 11) sentences were ordered to be s erved consecutively, with the remaining seve n (7 ) to be served concurrently with each ot her and the other sentences. If a defendant is conv icted of more than one (1) c riminal of fense, the trial court may orderhis sentences to run consecut ively when the offenses i nvolve sex ual abuse of a mino r with considerat ion to theaggravati ng circumstances a rising f rom the relation ship between the defendant and the vi ctim, thetime span of defen dant’s undetected sexual activity, the nature and scope of the sex ual acts and t he extent of the residu al, physi cal and mental damage to the vict im or vict ims. Ten n. Code Ann. § 40-35 -115(b)( 5). In the case sub judice , the D efend ant se xually a buse d his stepdaughter

from the time she was f our (4) year

s of age unti l she was nine (9). The abuse only ceased at that ti me because S.E. tol d her best friend ofthese offenses. The Defendant employed coer cive tact ics to keepthe vict im silent for a period of five (5) years, and during t hat time committed every type of rape imaginabl e, incl uding oral, vaginal an d anal. S. E. testi fied that she had to receive counseli ng, and her counselor

suggested thatshe would conti nue to need counseli ng. While S.E. was not currentl y undergoing t herapy, t here was sufficient evidence o f the victim’s anger, sham e and embarrassment regardi ng the abuse to constitute her emotional and mental damage as a result of the D efend ant’s repeated abuse. In addi tion, an extended sentence is necess ary for the Defendant to protect the public against further criminal conductand the sentencesreasonably r elate to t he severit

y of the-13-

offensesDefendant comm itted. State v. Wilkerson , 905 S.W.2d 933 (Tenn. 1995). This issu e is withou t merit.

In his fi nal issue, Defendant argues t hat the indictme nts are inva lid as th ey fail t o charge the Defendant with the r

equisite mens rea element of “i ntention ally , know ingly or reckles sly” r aping the vi ctim in vi olation of Tennessee Code Annotated section 39-13-502. The substance of each count of the indict ment which charges aggravated rape is as foll ows: That Michael Douglas Hughes on a day in 1990 or 1991, in Davi dson C oun ty, Ten ness ee an d befo re the fin ding o f this ind ictme nt, did engage in unlawfu l sexual pe netration of [S.H.] , a ch ild l ess than thirteen (13) years

of age, i n violat ion of Tennessee Code Annotated § 3 9-1 3-502, and against t he peace and dignit y of the State of Tennessee. Defendant relies upon a decision of this cour

t in State v. Roge r Dale Hill , No. 01C01-9508-CC-00267, Wa yne C ounty (Ten n. Crim . A pp., Nashvi lle, J une 20, 1996). The Ten ness ee Su prem e Cou rt recen tly revers ed this court’s decisio n in State v. Hill , 954 S.W.2d 725 (Tenn. 1997). The indi ctment in Hill charged the defendant in all counts with thefollowi ng: [The defend ant] did unlawfully sexuall y penetrate [the vi ctim], a person less than thir

teen (13) years of age, in viol ation of Te nnessee Code Annotated § 39-13-5 02, all of wh ich is aga inst the pe ace an d dignity of the State of

Tennessee. The supre me c ourt in Hill held that the requir

ed mental state may be inferr ed from the nature of the c rimina l cond uct alle ged in the indi ctment under rev iew in that case. As the statuto ry elem ents o f the offe nses are ide ntical to that in th e indic tmen t in Hill , our supreme court’ s decision i s con troll ing. The required mentalstate of intentionally, knowingly or reck lessly may be infe rred from the n ature of the crimi nal condu ct alleged in this indictm ent. Id . at 729. T his issue is without m erit.-14- We affirm the ju dgme nt of the trial co urt.

____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ GARY R. WA DE, Presiding J udge

___________________________________ L. T. LAFFERTY, Special Judge