### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs O ct obe r 7, 200 3

STA TE OF TEN NES SEE v. JAM ES A . JOHN SON

Direc t Appeal from the Circ uit Court for Hardin County No. 8137 C. Cr eed Mc Ginley, Judge

No. W2002-02448-C CA-R 3-CD - F iled Janu ary 29, 2004

T h e d e f e n d an ta p p e a l s h i s c o n v i c t i o n s an d s e n t e n c e s o nt w o c o u n t s o f a g g r a v a t e d

s e x u a l b a t t e r

y. The defenda

nt was sentenced to two twelve-y ear terms, to be ser

ved conse cutively

for a n eff ective sentenc e of twe nty -four

y ear s. The def

endant a sserts three issues for re view: (1) insuff iciency of the evidenc e to support the convic tions; (2) err or in the use of enhanc ement fac tors in determining the l e n g t h o f t h e s e n t e n c e s i mp o s e d ; an d ( 3 ) e r r o r i no r d e r i n g t h e s e n t e n c e s s e r v e d c o n s e c u t i v e l y.
Tenn. R. App . P . 3 Appeal as of Right; Judgme nts of

the Circ uit Court Aff

irm ed

J OHN E VE R E TT W I L L I AMS , J ., delivere d the opinion of the court, in which J A M ES C UR WO OD W I TT , J R . and N OR MA M C G EE O G LE , J J ., joined.
Guy T. Wil kinson, District Publ ic Def ender , and Richar d W. DeBe rry , Assistant Publ ic Def ender , for the a ppellant, J ames A. Johnson.

Pa ul G. Sum me rs , Atto rn e y Ge ne ra l and Re po rt e r; Jenn if

e r L . B le ds oe , A ssi sta

nt A tto rn e y

Ge ne ra l; G

. R o b e rtR a d f

o r d , D i s t r i c tA t t o r

n e y G e n e r a l ; a

n d J o hn W

. O v e rt o n , C h i e f

D e p u t y D i s t r i c tA t t o r

n e y, for the a ppellee, State of

Tenne ssee.

OP IN ION

On Dec ember

12, 2001, Offic er Br ian Rich of the Sava nnah Police De partment, re sponded to a dis patc h c on c e rn inga

dis tur ba nc e a t th e de fe nd ant’ s r e sid e nc e on F a irgroun ds Roa d in Savannah. O ffice r Rich stated that upon his ar riv al , the def

endant, James A. J ohnson, was in the liv ing ro om, we ari ng on ly sh or ts, and a pp e are d into xicate d. Hi s tw o y oungda ug hte rs , th e vic tim s,
wer e on the f

ront porch w ith some adults. He descr ibed both c hildren as being “sca red and upset.” After interviewingthe childre n separ ately , a dec ision was made to turn the c hi l d ren ove r to the De pa rt me nt o f C hil dr e n’ s Se rv ic e s. Whil e the de fe nd ant w a s st ill in t he c omp any

of the vic tim s, Of fi c e r R ic h h e ard

the de fe nd ant t e lli ngthe vic tim s a bo ut g if ts h e wa s g e tti ngthe m f

or Chr istma s.-2-

The y oung er victim, ten y ear s old, te stified as to the events that oc curr ed ea rlier in the da

y of De cembe r 12, 2001. She said that the defe ndant enter ed the bathroom as she was taking a bath. After her sister br oug ht the victim’s clothing in and left the bathroom, the vic tim asked the def endant to please le ave. H e re fused, a nd when she g ot out of the tub, he beg an touchingher g enital ar ea. T he defe ndant orde red the victim to bend over, a nd he tried to put his fing er in “ the wrongplace .” The defe ndant was se ated on the toilet with his pants around his ankle s. The victim put on her c lothes

and ra n o ut o f t he bathr oo m.

L ater that evening , the y oung er vic tim was order ed by the defendant to take a showe r. When she re s i s t ed , he thre atene d to whip her. She took a quic k shower a nd put on a nig ht shirt and

un de rw e ar. Th e de fe nd ant c ame int o th e bathr oo m, o rd e re d h e r t o r e mov e he r p ants , an d a g a in thr e a te ne d to wh ip h e r. Th e de fe nd ant the n touc he d h e r g e nit a l are a wh ile se a te d o n th e toi le t w ith his pants around his ankles. She de scribed the defe ndant’s condition as “ rea lly drunken.”

She then re counted a

simil ar inc ident that occur red while her family

resided in a

trailer pa rk in S a va nn ah. Th e de fe nd ant or de re d h e r t o p ull he r p ants do wn , a nd he tou c he d h e r a

nd tr ie d to “fr ench- kiss” her. She sa id the defe ndant was a l s o d ru n k o n that occa sion, and at both times, her mother wa s awa

y at work.

The victim wa s q u es t ioned about a note written by the def endant a fter his a

rre st, and she stated that her mother had rea d it to her. She ag ree d that the following quotes from the note wer e among those rea d to her: a. “B aby , if y ou don’t wont [si c] daddy to watch you Idon’t have to” b. “ B a by the on ly wa y the y wi ll sto p do ing thi s stu ff is i f you and [oth e r v ic tim ] te ll them daddy

didnt do nothing and that L eila li es all the t ime. Daddy promis[ sic] nothing like this will ever ha ppen ag ain.”

On cr oss-examination, she stated she had ne ver discusse d these e vents with any one except he r s ist e r, the old e r v ic tim

.
The older victim was eleve n y ear s old at the time of the def endant’ s arr est on Dec ember 12, 2001. She had opene d the bathroom door a nd witnessed her

sister bent over , touching her toe s and saw what the defe ndant was doingto the y oung er vi ct i m

. W h en L eil a, her aunt, re turned to the house, she r ecounte d these events to he r. They then went to B urg er King wher e her mother worke d, and L eila re lay ed the infor mation to the mother.

Duri ngthe int e rv ie w w iththe po lic e , th e old e r vic tim inf or me d th e m of

sim ila r a c ts d on e to her by the defendant while the family resided in the trailer pa rk. She stated that the de fenda nt had place d his hand under he r panties a nd touched he r vag ina.

D u r in g c r o s s
- e xa mi n a ti o n , s h e a d mi tt e d th a t s h e h a d

to ld K a thy Ca r r o ll th a t t h e s e a lle g ed events ne ver ha

ppened a nd that L eila had instig ated the matter. She also said that L eil a had prompted the gir l s t o s t ea l for he r. Duringredire ct examination, the older victim stated that the-3-

events she ha d rec oun t ed as h ap p en ing to he r at the tra iler par k and what she had witnesse d happeningto her sister we re the truth.

The de fenda

nt testified in his own behalf and denie d any

inappropriate touching of his two daug hters. He admitted writing the l etter previously ref ere nced but denied any

intent to influence the vic tim s’ te sti mony . H e state d th a t th e le tte r w a s in te nd e d to let t he m kn owhe sti ll l ov e d th e m. He attributed the victims’ versions of events to the i nfluenc e of his sister, L eila. He stated he ha d confr onted L eila about her stealing and mistreatment of the victims. He said the instant ac cusations

arose afte r this confrontation.

On cr oss-examination, the defenda nt was aske d about selec ted quotes fr om corre spondence to his wife. He stated they wer e not intended to influence the childre n’s testimony , but he wante d the tr uth tol d. Th e fo llo wi ngare se le c te d q uo ta tio ns wh ic h th e de fe nd ant d id n ot d e ny :
a. “Ask them if they

want their da ddy

in prison or may

be eve n dead.” b. “ As k the m if the y ’r e ha pp y br e a kin g our famil y up lik e thi s. Th e y sh ou ld b e tol d they are the re ason this s--- is happe ning to us a nd them and that they

did it.”

c. “L et them know I need their help to g et out of jail

. L et t h em k n o w t hat daddy wants a bigplace wher e they can ha ve their ow n tv’s and their ow n beds.”
Christopher Ang elucc i te stified that he had known the defe ndant two or three y ear s and had

never witnessed him abuse his childre n. J ennife r Ange lucci said she had known the de fenda nt one y e ar a nd c on sid e re d h im truthf

ul.

Ana lys is

Whe n th e su ff

ic ie nc y of the e vid e nc e is c ha llen g e d, the re le va nt q ue sti on fo r a n a pp e llate court is “ w h e th e r , a f

te r v ie w in g th e e v id e n c e in

th e li g h t m o s t f

a v o r a b le to th e p r o s e c u ti o n , any
ratio na l tr ie r o f f

a c t c ou ld h a ve fo un d th e e sse nti a l e le me nts of the c ri me be y on d a

re a so na ble do ub t.” Jac ks on

v. Vi rg ini a , 4 43 U. S. 3 07 , 3 19 , 9 9 S. Ct. 27 81 , 2 78 9, 61 L . E d. 2d 56 0 ( 19 79 ); Sta te v. Abrams, 935 S.W .2d 399, 401 (Tenn. 1996)

. We do not r ewe igh the evidenc e, but presume that the jury has re solved all conflicts in the testimony and dra wn all re asonable infer en ces f rom the evidenc e in fa v o r o f the State. State v. Sheffie ld, 676 S.W .2d 542, 547 (Tenn. 1984) ; State v. Cabbag e, 571 S.W.2d 832, 8 3 5 (Tenn. 1978). A g uilty verdic t removes the pr esumption of innocenc e on beha lf of the de fenda nt and ra ises a pre sumption of guilt on appea l. State v. G ra ce, 493 S.W .2d 474, 476 (Tenn. 1973) . The a ppellant has the burden of ove rcoming this presumption of g uilt. I d.
Ag g ravated sexual battery is de fined by Tenne ssee Code Annotated se ction 39-13-504( a)( 4), in p e rt ine nt p art , a s f

oll ow s: (a) [U] nlawful sexual contac t with a victim . . . a ccompa nied by any of the following

c ir c ums tanc e s: (4) The victim is l ess than thirtee n (13) y ear s of ag e.-4-

“Se xu a l c o n ta c t” in c lu d e s th e in te n ti o n a l to u c h in g o f th e v ic ti m’ s in ti mate p arts if that int enti onal touching can be rea sonably construed a s being for the pur pose of se x ual ar ousal or g ratification. Tenn. Code Ann. § 39-13- 501(b).

I t is undisput ed that both victims in thi s cause wer e less than th i rt ee n y ea rs of ag e. The y oung er vic tim gave g raphic testimony as to the def

endant’ s fo n d l i n g of her

private pa

rts on two

occa sions on Dece mber 12, 2001, a nd an ea rlier incide nt at a diffe rent location.

The older victim testified to similar fondling by the def endant at the family ’s prior r esidenc e. Altho u gh s h e ad m i tted denying the se alleg ations in an out-of-c ourt statement to a third pa rty , she

rea ffirme d the alleg ations in her testimony as the truth. I t is obvious t hat the jury acc epted he r testimony as the truth by

their g uilty

verdic t on Count Two. The jury was e qually

entitled to infer an admission by

the def endant f rom his le tter to the victims. Both convic tions are amply supported by the evidenc e and a

re a ffirme d.

The de fenda

nt next contends that the trial cour t erre d in the application of the enhanc ement fac tors in determining the leng th of sentenc es. This Court’s revie w of the se ntence imposed by the tr ia l c ourt is de novo wi th a

pr e su mpt ion

of c or re c tne ss. Te nn . Co de Ann. § 4 0- 35 -4 01 (d ). Th is presumption is conditioned upon an aff irmative showing in the rec ord that the trial judg e conside red the sentenc ing pr inciples and a ll releva nt fac ts and circ umstances. State v. Pettus, 986 S.W .2d 540, 543 (Ten n

. 1 9 99). I f the trial c ourt fails to comply with the statutory

direc tives, there is no pr e su mpt ion

of c or re c tne ss a nd our r e vie w i s de novo . State v. Pool e, 9 4 5 S

. W

. 2 d 93, 96 (Tenn. 1997).

The burde n is upon the appea ling pa rty to show that the sentenc e is improper. Te nn. Code Ann. § 40-35-401( d), Sentenc ing C o m mission C omments. I n conducting our re view, we are require d , p u

r s u a nt t o T e nn e s s e e Code Annotated se ction 40-35-210, to conside r the followingfac tors i ns en t en ci n g: (1) [t] he evide nce, if

any , re ce i v ed at the tr ial and the se ntencinghear ing; ( 2) [t] he prese ntence repor

t; (3) [t] he princ iples of sentenc ing a nd arguments as to sentenc ing alternatives; (4) [ t] he nature and char acte ristics of t he criminal conduct involved; (5) [e] vidence and information offer ed by the par ties on the enha

nceme nt and mitigating fac tors in §§ 40-35-113 and 40-35-114; and (6) [a]ny statement the de fenda

nt wishes to make in the def

endant’ s own beha lf about sentenc ing.

I f no mitigating or

enhanc ement fa ctors for sentenc ing a

re pr esent, T en nessee Code Annotated se ction 40-35-210( c) provides that the presumptive sentenc e for most offe nses shall be the minimum s entenc e within the applica ble rang e. State v. L avende r, 967 S.W.2d 803, 806 (Tenn. 1998); State v. Fletc her, 805 S.W.2d 785, 788 (Tenn. Crim. App. 1991). How ever , if such fa ctors do exis t, a t ri al court should enhance the minimum sentenc e within the ra ng e for enhanc ement fac tors and then reduc e the sentenc e within the rang e for the mitigating fac tors. Tenn. Code Ann. § 40-35-210( e); State v. Ar nett, 49 S.W .3d 250, 257 (Tenn. 2001) . No par ticular we igh t for each fac tor is prescr ibed by

the statute, as the w eig ht give n to eac h fac tor is left to the discre tion of the-5-

trial court a s long as the trial court complies with the purposes a nd principles of the sentenc ing a ct

a nd i t s f i n d i n g s ar e s u

p p o rt e d b y t h e r e c o r d

. S t a t e v

. M a d d e n , 9 9 S

. W

. 3 d 1 2 7 , 1 3 8 (T e nn . Cr im. Ap p. 20 02 ); se e Te nn . Co de Ann. § 40 -3 5- 21 0, Se nte nc ing Com mis sio n Co mme nts . N e ve rt he le ss, should the re be no mitigating fac tors, but enhanc ement fa ctors ar e pre sent, a trial c ourt may set the sentenc e above the minimum wit hin the rang e. Te nn. Code Ann. § 40-35-210( d); State v. I mfeld, 70 S.W .3d 698, 704 (Tenn. 2002)

.
The we ight g iven to eac h enhanc ement or mitig ating fac t o r i s i n the discre tion of the trial court, a ssuming the tria l court has c omplied with the purposes and pr inciples of the se ntencingact and its findings a

re suppor ted by the re cord. Ma dden, 99 S.W.3d at 138. The statutes prescribe no particula r we ight f or an e nhance ment or mitigating f actor . State v. Gosnell , 62 S.W .3d 740, 750 (T e nn . Cr im. Ap p. 20 01 ). A de fe nd ant’ s se nte nc e “ is no t de te rm ine d by the ma the ma tic a l pr oc e ss of addingthe sum total of enhanc ing fac tors prese nt then s ubtrac ting f rom this figur e the mitigating fac tors prese nt for a net number of y ear s.” State v. Alder , 71 S.W .3d 299, 306 (Tenn. Crim. App. 2001) (quoting State v. Bog g s, 932 S.W .2d 467, 475 (Tenn. Crim. App. 1996) ).

I t appea rs from the rec ord of the sentenc ing hear ing that the trial court f ollowed the statutory direc tives conce rning sentenc ing. T enn. Code Ann. § 40- 35-114 (1) (2000). Two e nhance ment fac tors wer e found. The first was that the defe ndant had a past criminal hi story

. The de fenda nt had been convicted of driving under the influence and driving on a revoke d driver’ s license. The se we re considere d as one offe nse due to the ir arising from the same set of circ umstances. The tri al court chose not to co n s i d er a letter introduced at the sentenc ing he aringfrom the de fenda nt to his wife. The letter contained reque sts by

the def endant to have marijuana

smugg led into the jail for his own

us e and to s e ll.

Gre at weig ht was g iven to the fa ct that the de fe n d ant had a position of private trust that signific antly

fac ilitated the commission of the offenses. Tenn. Code Ann. § 40-35-114( 15) (2000)

. I n its application of this factor , the trial cour t stated: I t goe s without say ing th at t h e relationship of pare nt and child is that of private trust, and he abused this, took advanta g e of it, in a horr ible, horrible manne r to fa c ili ta te the c omm iss ion of his c ri me , an d the c ourt a c c or ds g re a t w e ig ht t o th a t.

The trial court ref

used the def

endant’ s reque st to apply

as a mitig ating fac tor that there was no serious bodily

injury cause d by the offe nses. Tenn. Code Ann. § 40-35-113( 1) (1989) . Having

ma de the se fi nd ing s, the tr ia l c ourt se nte nc e d th e de fe nd ant t o tw e lve y e ars on e a c h c ount.

I n revie w of the sentenc ing, we are bound to acc ord t he trial court discretion in the we ight g iven to eac h enhanc ing f actor

. Madden, 99 S.W .3d 127, 138. We conclude that the application of the e nh anc e me nt f

a c tor s w e re a

pp ro pr ia te . T he pr op os e d mit ig a tin g fa c tor , e ve n if a llo we d, wo uld have be e n e nti tle d to lit tle we ig ht. Ac c or din g ly , th is i ssu e is w ith ou t me ri t.-6-

F ina lly , th e de fe nd ant c on te nd s th a t th e tr ia l c ourt e rr e d in impo sin g c on se c uti ve se nte nc e s. I n sentenc ing, the trial court f ound that the def

endant was a “classic ex ample,” justifying c onsecutive sentenc ing unde r Tenne ssee Code A nnotated sec tion 40-35-115(b)( 5).

When a def

endant is convic ted of more than one offense, the court may order the sentenc es to r un c on se c uti ve ly

if the c ourt fi nd s b y a pr e po nd e ra

nc e of the e vid e nc e tha

t: The de fenda

nt is convicted of two (2 ) o r m ore statutory offe nses involving se x ual abuse of a minor with consider ation of the a g g ravating c ircumstance s aris ing f rom the re lationship between the defe ndant and v i ct i m o r vi ctims, the time span of d ef en d an t ’s undetec ted sexual activity , the nature and scope of the sexual acts a nd the extent of the residua l, phy sical and me ntal damag e to the victim or victims. Tenn. Code Ann. § 40- 35-115(b) (5).

The trial c ourt mentioned the time span of the defe ndant’s undete cted se x ual transg ressions

and the ne c e ssi ty

that th e State e le c t sp e c if ic ins tanc e s a s to e a c h v ic tim . T he tr ia l c ourt a lso observe d that althoug h no expert proof w as adduced conc erningpsy cholog ical dama g e to the victims, there wa s lay

proof of linge ring eff

ects on the vic tims’ behavior.

Af te r c are fu l r e vie w o f t

he e nti re re c or d, we a ff

ir m the se nte nc e imp os e d by the tr ia l c ourt

.

___________________________________ J OHN EV ERETT WI L L I AMS, J UDGE