# FILED April 13, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE OCTOBER SESSION, 1998
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9804- CR-00129 ) Appellee, ) GREENE COUNTY ) V. ) HON. J AMES E.BECKNER, JUDGE ) BOBBY DALE FRA NKLIN, SR. ) (AGGRAVA TED SEXUAL ) BATTERY; AGG RAVATED RAPE; Appe llant. ) RAPE O F A CHILD )

FOR THE APPELLANT : FOR THE APPELLEE : GREG W. EICH ELM AN JOHN KNOX WALKUP Distri ct Public

Defender Attorney General& Reporter MICHAEL A.WALCHER ELIZABETH B.MARNEY Assistant Public Defender Assistant Attorney General 1609 Co llege Park D rive 2nd Floor, Cordel l Hull Bui lding Morristown, TN 37813 425 Fifth Avenue North Nashvill e, TN 37243 C. BERKELEY

BELL, J R. Distri ct Attorney General ERIC D. CHRI STIANSEN Assistant Distri ct Attorney General 109 South Main Street , Suite 501 Greenevill e, TN 37743

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

# OPINION

The Defe ndan t, Bobb y Dale Frank li n, appeals as of right his convicti ons for aggravated sexual battery , aggravated rape, and rape of a chi ld, fol lowing a j ury tri al in the Criminal Court of Greene County. The convictions are as foll ows:
OFFENSE DATE OF SENTENCE OFFENSE (as alle ged in presen tment) Count O ne: aggravated sexual battery between March twelve (12) years 1990 and ___ 1992 Count T wo: aggravate d sexual battery ___ 1992 twelve (12) years Count Three : aggravated r ape summer 1992 tw enty-five (25) year s Count Four: rape o f a child between ___ twenty- five( 25) y ears 1992 and ___ 1993 Count Five: rape o f a child June 3, 1995 twenty-f ive (25) yea r s Count Six: rape of a child June 4, 1995 twent y-fiv e(25) years Count Se ven: aggravate d sexual battery between June 5 twelve (12) years and June 9, 1995 Count Eig ht: aggravated se xual battery June 29, 1992 twelve (12) years
The trialcourt order

ed his four

convicti ons for rap e to run consecutively wit h each otherand conc urrent to the four con victions for aggrava ted sexual battery, fo r an effective sentence of 100years. In this ap peal, D efend ant rais es the followin g six (6) issues :-3- I. Whethe r the trial cour t erred in adm ittin g certain testimon y; II. Wh ethert he t ri al cour t’ s ve rdi ct f

ormswere improper; III. Whethe r Count Fo ur s hould be dismisse d (Count Five o f the presentm ent); IV. W hetherthe trial c ourt er red in e xclu din g certain testimon y; V. Whet her the tri al court erred in all ow ing th e testimonyof Dr . Reardon r egard in g penetrati on; and VI. Whether the tri al court committed sentenci ng errors.
After a ca reful review of the reco rd, we affirm the judgm ent of the tria l court.
Sum mary o f the Fac ts
Test imony at trialrevealed that on June 9, 1995, t he twelve-year-ol d vict im , T.S. (we willuse the ini tials rather t han the ful l name of the v ictim), insisted on going to work with her

mother. While themotherand d augh ter wer e in the car, the victim started crying a nd sa id that D efend ant, the victim’s stepfather , had raped her. The mother immediately notifi ed authorit ies and took T. S. to the h ospital emergency room to be examined.
Dr. Dona ld Verlin Tucker, Jr. examined T.S. at the eme rgenc y room and h is examination revealed a hi story of sexual abuse consi stent wit h that whic h she had told h im . He tes tified tha t he exa mine d the vic tim five d ays afte r the pe nile penetrati on had al lege dly occur red. He testified that t he genital ia examinati on was norma l except for th e abse nce of a h ymen .-4- Dr. Peter Reardon, an ob stetri cian/gynecol ogist, t ook a medical hi story of the victim on June 14, 19 95, whic h incl uded her statement t hat she hadbled for two days after peni le penetrat ion on Sunday, June4, 1995 , and had experienced t wo othervaginal penet rations, one digitally and one oral ly. Dr. Reardo n discovered two
sma ll broken areas on the victi m’s h ymen when doing a pelv ic examinati on, but found no recent tr

auma to the vagin a orany laceration s. Dr. Re ardon s aid that a “recent trauma ” to the hym en take s abou t six to eight days to heal af ter being torn and tha t after ten da ys it would lo ok like a he aled wo und.

The victim testified at tri al about various types of sexual abuse infli cted by D efenda nt, described t he circumstances s urrounding each incident of abuse, and gave approximate dates for most i ncidents based on where the family was liv ing, what car the family was d rivi ng, and birt hdays of family members. The time span for Defe ndan t’s sexual abuse oc curred over a seven-year p erio d begi nning when T.S. was five and end ing when she was 12.

T.S. testified that her f amily moved to t he “blockhouse” when she was about five years old andthat a barn was located on the prope rty. W hile the family live d in the “blockho use,” De fendan t took the vic tim to the barn to feed the cats. In t he barn, Defendant placed her on stacked bales of hay , rem ov ed her panties , and fondl ed her. T.S. d id not te ll her mother about this i ncident before June 9, 1995, although she testi fied that

she believed that thi s incident occurred in 1987.

In 1990, when the vict im had fini shed the second grade, th e family m oved to
a house on Snake Hollow Road. At that t ime, the fa mily owned a red Thunderbird.-5-

The v ictim sai d that she and Defen dant were in t he red Thunderbirdtravel in g towards the fam il y’s pr ior resi dence, the “bl ockhouse,” when Defendant began “playi ng with himsel f,” pul led to theside of the road, and stopped the car. Defendant then walked to t he passenger side of the car, removed the victim’s “b ottom c lothes,” and started rubbing her vagin a and m asturba ting. Defendant ejacul ated on T.S. and wiped the ejacul ate off wi th his banda na handk erchief. The victi m did not tel l her mother about t his inc ident befor e June 9, 1995, becaus e she was afrai d that Defendant might hurt he r by“whippin g” her. Up on obje ction by D efenda nt, the tri al court instructed the jury t o di sregard the v ictim’ s statement about Defendant “whipping”

her. Defendant

moved for a mist rial based on that statement, but the trial court ove rruled it.

T.S. testified thatwhile she and Defendant were ri ding in a red Buick car he had purchased that

day, Defendant

said he needed to go to hi s employer’s garage to roll up the windows of hi s garbage truck. Other proof s howed that the v ehicle was purchased on June 29, 1992. While t he victi m was sitting in the Buick, she locked the car doors because she was afrai d thatDefendant “might try somethi ng.” After Defendant told the victi m to unlock the door s, he took her

out of the car, lai d her on
a pallet, removed her panti es, goton top of her, and began rubbing his penis agai nst her. When the victim sai d “you promised y ou wouldn’t do this again ,” Defe ndan t told her that t his was the l ast time.

Somet ime before her bro ther’s Augu st 22n d birthd ay in an unspe cified year, Defen dant, the vict im, and her brot her were taki ng items to the garage at the Snake HollowRoad residence. Defendant sent the vict im’s b ro ther to feed the chickens. When Defendant and T.S. were al one in the gar age, Defendant

rubbed her vagi na,-6-

masturbated, ejaculated, and wiped t he ejaculate off her wi th his bandana handk erchief. T.S. stated that “ this happened se v eral times, abou t four or five times.”

On another occasi on, Defendant was stan ding be side the B uick with h is pants unzipped and his penis exposed while t he victi m’s mother was mowing the y ard. Defen dant forc ed T.S . to put her m outh on his penis and to pe rform fellatio

.
During the wintert ime after t he year1990, Defendant used Vaseline that was kept on the victim ’s mothe r’s dresse r to pene tr ate the victim digi tally i n the adults’ bedroo m.

On the Saturday after school ended in 199 5, De fenda nt cam e into th e victim ’s bedroom while vi ctim was readi ng a book, pull ed down hershorts and pant ies, and said he wascheck ing to see i f shehad “ been with an y boys.”Th en he performed cunnili ngus on her. After t elling her he was going to do what he “usuall y” did, he rubbed he r vagina, mas turbate d, ejac ulated , and w iped th e ejac ulate o ff with his bandana handkerchief . Neither the vict im’s mother nor brother were at home during this inciden t.

On June 4, 1995, agai n while h er mother and brot her were away fr om the house, Defendant penetr ated the vi ctim with his penis i n the vict im’s bedroom
. Defendant told T.S. that he would kill her if s he told anyone. The victi m was crying and bleeding from the penetration and she conti nued to bleed for two days.-7- On June 7, 1995, Defen dant, the victi m, and her brother went to Kinser Park. They had been on their way to visi t the ch i ldren’s mot her at work, but learned that th e mother could not get off to s ee them. As the vi ctim and Defendant walked through the woods a t Kin ser Pa rk looki ng for a place to fis h, Defendant began playing with thevicti m’s breasts t hrough her clot hes. T.S. sai d that she t ried to get away, bu t Defend ant told he r, “If you try to get a way it ma kes m e want yo u more .”

At the co nclus ion of th e victim ’s testimony on direct ex amination, counsel for Defendant objected to her statement thatDefendant had sexual ly battered her four
or five t imes in the Snake Hol low garage. Thebasis for defense counsel’s obj ection
was that these were “other bad ac ts” not cove red by the B ill of Particulars. Overruli ng the mo tion for a m istrial, the cou rt s tated that the charges coul d be defined speci fically enough to avoi d any jury confusion.

Same ra Zavaro , a forensic scienti st with t he TBI, test ified t hat the fit ted bottom sheet from the victim’s bed teste d positive for blood an d semen. She further testified thataf terDNA testing on t he bed sheet, Defendan t could not be excluded as t he contributo r of the spe rm on th e victim’s b ed she et.

Defendant testified and de nied tha t he ha d mo lested or had sex with his stepdaug hter.

The jury foun d Defend ant guilty of four counts o f aggravated se xual battery and four counts

of rape of a child. As reflected in the j udgment form, the trial court changed one o f the chil d rape convict ions (Count Three)to aggravated rape because the State w as no t able to estab lish tha t it occurred after July 1, 1992, the-8-

effective date of the “rape of a child” statute
. See Tenn. Code Ann. § 39-13- 522; State v. Case , 884 S.W .2d 146, 147 (Tenn. Crim . App. 1994 ).

I. Admissi bilit

y and Effect

of Certai n Testimony

Defendant argues in t his issue t hat the “State was al lowed, over obje ction, to introduce irr

elevant p rej udic ial uncha rged condu ct. ” Spec ifi cally, De fe ndant contends that the victim was al lowed to testify about an inci dent that was time-barr

ed by the statu te of li mitations . Def enda nt asserts that the count of the presentment charging this of

fense had already been di smis sed. H e also conte sts the victim’s testimony

that Defendant

“whipped her har

d” and that he sexua lly assau lted her “ four
or five t imes” in t he garage at the Snake Hollow resi dence. Final ly, he ar gues that it was improper

for the v ictim’ s mother to te stify that Defendant

had threate ned to kill her and to hurt the vic tim.
First, Defendant conte nds th at the vic tim was allowed to testif y to an all egation of aggravated sexual battery tha t was dism issed as being tim e-barred by the statu te of limi tations. This inci dent all egedly occurr ed in 1987 when the v ictim was about five years old . The victim testifi ed tha t Defendant took her to th e barn to feed the cats, and th ere he remo ved he r pantie s and fondle d her. F irst of all, Defendant has waived thi s claimed err or on appeal because he did notenter a contemporaneous objecti on to the testimony. Tenn . R. App . P. 36(a); State v. Killebr ew , 760 S.W.2d 228, 235 (T enn. C rim. App .), perm. to appeal denied (Tenn. 1988). However, even if this i ssue is add resse d, it is wit hout merit. The record does not i ndicate what happened to t his particul ar count, s o we cannot say whet her this count was dismissed or severed. Ther e sho uld be no uncerta inty regard ing the sta tus of a-9-

count of a present ment, and it should be no ted that it is the responsibil ity of the ap pellant

to pres ent an adeq uate re cord fo r review on ap peal. R egard less, th is charge would n ot be time -barred, as T ennessee Code Annotated sect ion 40-2- 101(d) and (e) which b ecame e ffecti ve in 1985, is a pplicable to this cha rge. See Morgan v. State , 847 S.W .2d 538 , 540 (Tenn. Crim . App. 1992 ) ( citing1985 Acts, ch. 478, § 21 ). This sta tute states th at prosecution for a ggravated se xual battery, among other offenses, had to commence no later than the date the chi ld attai ns the age of majorit

y or wit hin four (4) years af ter the commissi on of the of fense, whic heveroccurs la ter. Tenn . Code Ann. § 4 0-2-101 (d). The refore, pro secuti o n would have had to commence in 1991 or before the v ictim reac hed t he age of 18

. In the instant case, commencement of pr osecution for this of

fense occurredin 1997 at which t ime the vic

tim was only 14 or 15 years ol d.
Second, Defendant has a l so waived any obj ection to the vict im’s test imony thatDefendant took

her to theSnake Hollow garage and s exually battered her

“four
or five ti mes” because Defe ndan t again mad e no c ontem poran eous objec tion to th is testimony. Tenn . R. App . P. 36(a); Killebr ew , 760 S.W.2d at 235. At the conclusion of the victim’s testimon y on direct exam ination , defen se co unse l did ob ject to th is statementand a sked for a m istrial. The court said t hat the charges could be defi ned spec ifically enough to av oid any jury c onfusion. Th e trial court did give a jury instruct ion explaining the limite d purpose of the evi dence and explai ned that any evidence that Defendant had committed a crime or cri mes other than t hose charged could not be consider ed to prove hi s disposit ion to commit t he charged crimes. The jury is d ee med to have foll owed the court’ s instruc tion, and we find the instruct ion sufficient to c ure any p rejudice to Defen dant. See State v. Harris , 839 S.W.2d 54, 72 (Te nn. 199 2).-10- N ext, Def enda nt did m ake a conte mpo raneo us ob jection to the vic tim’s testimony

that she was af raid of Defendant because he “whipped her hard.” In the presence of the j ur y, defense counsel as ked for an i nstructi on concerning t he testimony

about the whipping, an d the court instructed that “the jury should disreg ard thatand not consider it for any p urpose.” Th e jury is presum ed to have followed the trialcourt’s instru ction. Id . Moreov er, t his tes tim ony by the wi tness does not “affirm atively appear to have af fected the result of

the tri al on the me rits.”Tenn. R. Cri m. P. 52(a). Acco rdingly , any er ror tha t occu rred as a resu lt of this vic tim’s unsolicited statem ent was ha rmless. Te nn. R. App . P. 36(b).
Finally, Defendant states thatth e victi m’s mother should not have been allowed to testify that Defendant had thr

eatened to k ill her

and/ or h urt thevi cti m. Defendant did not mak e a contem pora neous objection
. See Tenn. R . App. 36(a). In any event, we do not fi nd this evi dence to have af fected theresu lt of this tria l. Tenn . R. Crim . P. 52(a). T his issue is without m erit.

II . Ve rdi ct F orms

In his seco nd issue , Defend ant c lai ms t hat thetr ialcou rt ’s ver

dic t forms constit uted improper commentary on the facts. The verdict forms submitted to the jury specifi ed the eight charged crimes as foll ows:

[Count One] after t he parties moved to Snake Hollow Road (after

Mar ch , 1990) and befor e the parti es purchased a Buick automobil e (June, 199 2) , when the defendantand the victim, [ ], were in a re d Ford Thund erbird and were g oing to their former resi dence, the block house;-11- [Count Two] at the Snake Hol low Road residence in the summer of 1992 during day light, in the garag e; [Count Thre e] by forc ing [ ], the victim, to perfor m fella tio on [Defenda n t] at t he home on Snake Hollow Road after June 29, 1992, the date of purchase of t he Buick automobile and at the back of the Buick; [Count Four] by t he digital penetrati on of [thevictim], which occurred in the fall of 1993 and b efore Thanksgiving Day in t he defen dant’s bedr oom; [Count Five] by

cunnili ngus on June 3, 1995 of [the vi cti m] in her bedroom at the Snake Hollow Road residence; [Count Six] i n her [the v ictim’ s] bedroom on Sunday, Jun e 4, 1995; [Count Seven] on Wednesday, June 7, 19 95 at Kinser Park while [Defendant] and the victim, [ ], were w alking in the woods; [Count Eight] at the Snake Hollow Road residence between March, 1990 and June 9, 1995 and while t he defendantand the victim, [ ], were test- driving the Buick (purchased on 6-28-92) and i n the garage of the defendan t’s employer.
After reviewing the ve r dict forms, we find t hat the trial court did not of

fer
unneces sary comm entary on the facts a s alleged by Defe ndant. Rat her , t he forms conta in enough specifi c informati on to comply wi th the requir emen t that the Sta te elect the particu lar offense s for which conviction s were s ought. S ee State v . She lton , 851 S .W.2 d 134 (T enn. 19 93); Burlison v. State , 501 S.W.2d 801 (Tenn. 1973). Since the victim did testify to m any sexu al crimes comm itted by De fendan t, the trial cou rt ensu red un anim ity in the jury’s decisio n by be ing sp ecific in the verdict forms. See Shelton , 851 S.W .2d at 137 . This issu e is withou t merit.
III. Dismissal of

Count Four-12- In his thi rd issue, Defendant clai ms that Count Four should be di smissed because the vict im’s test imony as to when t he digital penetrat ion occur red did n ot specify a year. De fendan t contend s that w ithout a s pecifi c year the j ury could not determine if the digitalpenetrati on was “an all eged aggravated r ape or a child ra pe.” We note that t he count Defendant i s contesti ng is Count Fiv e in the pres entment and Coun t Four on the verdict fo rm and judgm ent.

Defendant fails to cite any authority to s upport his a rgum ent, an d there fore this i ssue should b e waived
. See Tenn . R. App . P. 27(a)(7 ); State v. Dickerson , 8 8 5 S.W.2d 90, 93 (T enn. C rim. App .), perm. to appeal denied (Tenn. 199 3). However, even if this iss ue is add ressed , it is without m erit.

The count in the presentment Defendant contests al leges the following: [Defen dant], between ___, 1992, and ___, 19 9 3, unlaw fully committed the of fense of rape of a c hil d by know ingly engaging in unlawful se xual penetrati on of [victim], a child less that thirteen years of

age, by sti cking his finger in side h er vag ina; a c lass A felony in violat ion of T.C.A. 39-13-522, and against the peace and dignity of the State of Tennessee. Prior to July 1, 1992, the unl awful sexualpenetrati on of a v i ctim less t han thirteen (13) years of

age wa s design ated as aggrava ted rape . Tenn. C ode An n. § 39-13-502 (a)(4)(1991). That po rtion of the a ggravate d rape s tatu te r eferring to vi cti ms under thirteen (13 ) y ears of ag e was th en “mo ved to § 3 9-13-52 2.” Sentencing Commission Comments, Tenn. Code Ann. § 39-13 -502. In fairn ess to Defen dant, panels of t his Court have indicated that it was codi fied “a s a separate,
new crime” at Tenn. Code Ann. § 39-13-522. See State v. Banes , 874 S.W.2d 73, 78, n.4 (Te nn. Crim . App. 19 93), perm . to app eal d enied (Tenn . 1994). How ever, the elements of aggr

avated rape of

a child less than 13 years of age ar e identica l to-13-

the elements of r

ape of a chil d. The classi ficati on of the of fense a s an A fel ony remained the sam e. See Tenn. Code Ann. §§ 39-13-502( b) and -522(b) . The only significa nt diffe rence is t hat each sentence f or convict ions of an of fense occurri ng on or after

July 1, 199 2, must b e served undim inished b y senten cing cred its. See T enn. Code A nn. § 39-13-5 23. The un diminished s entencing p rovision of ra pe o f
a child requires a s howing that t he penetrati on occurred on or after July 1, 19 92 , before one can be convicted of the of fense des ignated as rap e of a child. If there is insuffi cient proof

that the of

fense occurredon or after Ju ly 1, 199 2, one could only be convicted of agg ravated rape. T his situation is akin to one where a sentence for
a spec ified crim e incre ases after a c ertain d ate. U nder s uch c ir cums ta nces, a person must

be s ent ence d wi thi n th e par amet ersof t he s ent enceexi sti ng at theti me of the offense , not the tim e of sentencing.

At tri al, the victim’ s testi mony did not speci fy when the of fense occurred

. Testimony in regards to this count was as follows:

State: I’ve asked the co urt officer t o pa ss to you

Exhib it #16. Would you lookat that, please? Do you recogn ize that? Vic ti m: Yes. State: Wh ere was that jar of Va seline ke pt? Vic ti m: On my m other’s dresse r.

. . . State: Did you ever have occasi o n to be in

[De fen dant’s]bedr

oom? Vic ti m: Yes. State: Did you ever have occ asion to . . . . excuse

me, let me ask the questi on this way. On an occa sion th at you w ere in h is bedro om d id it involve Exhibit

#16, that j ar of Vaseli ne?-14- Vic ti m: Yes. State: Do you remember when that occur red? Vic ti m: I know it was in the w inter. State: Do you know whether or not it was before or after Thank sgiving Day? Vic ti m: I believ

e it was before. State: Do you know what year it was? Vic ti m: I cann ot reca ll. State: Wasit ther e at t he Snake Ho llow R oad residence? Vic ti m: Yes. State: [D]o you remember whether it was before or after the purchase of t he Buick? Vic ti m: I don’t re call. State: W ould you tell t he ladies and gent lemen of

the jury what

h appened on the occasi on involv ing the j ar of Vaseli ne? Vic ti m: It was in his bedroom and my mother’s room

and [Defendant] had took [si c] the jar of Vaseline and pu t it on his fi ng er and pull ed my pants down and he stuck hi s finger in my vagina and I to ld him th at i t hur t me. He pulled his f ing er back out and told me to get up. State: Did you tell your mo ther abo ut that? Vic ti m: No, I did n ot.
The foregoing testimony demonstrates that the State di d not establ ish the exact date that th is particular in cident oc curred. The only tim e fram e the vic tim could testify to was tha t it occurred after they m oved to the Snake Hollow residence which
was earlier

establi shed as being someti me in the year 1990. The cou nt in the p res entment dealing wi th the dig ital r ape states t hat Defendant st uck his fi nger-15-

insidethe vict im’s vagi na “be tween ___, 1992, and ___, 1993.” The Bill of Particulars states that the single inc ident of digital penetration occurred be fore Thanksgiving Day of 1993

. However, contr ary to t he State’s ar

gument, this

is not enough to satisf

y the State’s burden of proving that the incide nt occ urred after Ju ly 1, 1992, in o rder to establish rape o f a child. These d ocume nts were not admitted into evidence and i t was the State’s burden to clea rly establi sh through evi dence at trialwhen the all eged incident occurred.

Howeve r, to dismiss t his count al together would be an extreme mispl acement of form over substance. The act of “unlawfulsexual penetr ation of a victim ” who “ is less than thirteen (13) yea rs of age,” did not ce ase being a cri me a t midnight on June 30, 199 2; i t merely ceased being codif ied at Tenn. Code Ann. § 39-13-502. See Tenn. Code Ann. § 39-13-522(a) . Again, t he elements of aggravated r

ape and rape of a chil d are the same and the State did p rove beyond a re asonable doubt Defe ndan t’s guilt of the unl awful sexualpene tration o f a child less than thirteen yea rs of age. However, s ince the State did not cl early establish when t he incide nt occurred, we hold t hat D efenda nt is guilty of ag gravated rape inste ad of rap e of a child in Coun t Four (C ount Five of the pres entme nt). Th e judgment must be modified acc ordingly.

IV. Exclu ded Testimony

In this i ssue, Defendant contends that he was prevented f rom presenting a defense when the trialcourt excluded testi mony that the victi m had contact with “sex toys,” that she a ppeare d to eng age in se xual con duct with h er brothe r, t hat her-16-

brother had raped a cousin, and that she had knowl edge of the male anatomy and physiology.

Evidence of a victim ’s s exual behavi or other t han the sexual act or acts at i ssue is governe d by Te nness ee Ru le of Evide nce 41 2. Rule 4 12 doe s apply to
case s involving the rape of a child. See State v. Terrell Di on Cowans , C.C.A. No
. 02C01-9610-CC-00359, Henry County (Tenn. Crim. App., J ackson, Nov. 20, 1997), per m. to appeal deni ed (Tenn. 1998). The rule li mits the admis sibility of evidence of specific ac ts of sexual cond uct of th e victim , as we ll as evid ence of the vic tim’s sexual reputation.

At issue i s the provi sion which may permit the admissi on of sexual behavi or of the vict im with pers ons other than Defendant “to prove or expl ain the source of semen, injury, disea se, o r k nowledge of sexualmatters.” Tenn. R. Evid. 412(c)(4)(ii). “Knowledge of sexual matters”is often soug ht to be introdu ced in child
sexu al abuse cases. Where the State’s proof s uggests that the chil d vi cti m’ s knowledge of sexual ma tters resulted s olely f rom the inci dent with t he defendant, the defendantis permit

ted to show that the victim acqui red the famil iarit y from sexual activi ty wit h third per

sons. Advisor

y Commission Comments, Tenn. R. Evi d. 412.

Howeve r, before evi dence regardinga victi m’s “knowledgeof sexual matters” is admissible, the tri a l court must first determine that

the probative value of the evidenc e outweig hs its unfa ir prejudice to the victim . Tenn. R . Evid. 412 (d)(4). In holding t hat the evi dence was inadmissi ble, the court stated the fol lowing:

None of that i s admissible except . . . I gu ess mayb e unless I should have said, specific i nstan c es of con duct. So what you hav e to first have is a spec ific instance of a-17- victim’s sexual beha vior, is it ad miss ible unless submitted in accordance wi th such and such? Consent is not an iss ue. If it were someone other

than the accused it can on ly be used to rebut or explain s cienti fic or medical evidenc e which is not the ca se. To p rove or explain the source of semen, injury, disease or knowledge of sexual matter

s, which i s not the case. Or to pr ov e consent, whi ch is not an i ssue.

. . . Somebody playing with . . . I don’t think pl aying with a vibrator would ever be admis sible, that I can conceive. Seeing someone attempting to have sexwould not be admissible. The only evidence that I ha ve eve r seen that co uld come in and I think if you read a ll of 412 it’s clear, is . . . have you read the def ini tion of s exual behavi or? It means sexual activi ty of t he alleged v ictim ot her than the s exual act that’s th e issue in the case. Sexual activi ty is def ined, isn’t it? Let’s loo k at it. The def init ion of sexualbehavior i s sexual act ivit y of som eone other th an the defen dant, a nd to b e adm issible it has to be a speci fic i nstanc e of a vi ctim of sex ual behavior

for the purpose of provi ng consent which i s not an issue, medical evidencewhich is not an issue, behav ior of the acc used w hich is no t an issue
. . . . The only thi ng I’ve seen a court let in are where one said, ‘Yes, I had consensu al sex with her,’ and the n you’ve got to reme mber it sa ys . . . for knowl edge of sexual, the fact tha t someone may have attempted to have sex wit h th e victim or the victi m may have played wit h a so-call ed, quote, sex toy, does not impute knowledge of copulati on. I don’t believe any co urt would stretch it that far.

. . . I just don’ t believ

e under any str

etch of th e im agination thatany cou rt would e ver allow tho se sub mission s to come in under Rule 412.
B y com men ts the tria l court m ade in holdin g the e videnc e inad miss ible, it is apparentthat the court below f ound the incide nts had no probati ve value. We agree with the t rial cour

t’s concl usion. A deci sion regardi ng Rule 412 willnot be-18-

overturnedabsent a showing t hat the determ ination was a n abu se of th e trial co urt’s discreti on. See State v. Sheline , 955 S.W .2d 42, 46 (Tenn . 1997). Defendant has failedto show how denying the evidence was an abuse of the trial court’s discr etion. This issu e is withou t merit.

V. Admissibil ity of

Dr. Reardon’s Test imony

In this issu e, De fenda nt argu es tha t the tria l court erred in allowing D r. Reardon to testify as to his i mpression concerni ng penetrati on and in all owing the introduct ion of Ex hibi t 30 w hich was Dr . Re ardon’s complete examinat ion of the vi cti m.

Defendant fai l s to cite any au thority in supp ort of this issue a nd it sh ould therefore be treate d as wa ived. Ten n. R. Ap p. P. 27(a )(7); Dickerson , 885 S.W.2d at 92-93; see also Killebr ew , 760 S.W.2d at 231-32. In add ition, the record revea ls thatDefenda nt did not ma ke a contem pora n eous objec tion to the testimon y of Dr. Reardon or any object ion to theadmission of Exhibit 30 and this i ssue should be waived fo r these re asons as well. Te nn. R. A pp. P. 36 (a).

Defen dant’s m otion in limine reque sted, in pertinent part, that the trial court redact “[a]ny o ral state men t mad e by the child in this cas e to ph ysician s that is [sic]-19-

not for purpos es of diag nosis and trea tment.” It should be noted that the rec ord contains no Ord er dispos ing of this m otion.

Howeve r, even addressed on the merits, Defendant’s argument mustfai l. On directexamin ation, Dr. R eardon te stifi ed that he took a medical hist

ory from th e vi cti m, that the history w as im portan t for pur pose s of dia gnos is and treatment, and that the v ictim had told him of t hree specifi c incidents of penetrat ion. Dr. Reardon said thathis physi cal examinati on led him to conc lude that partialpenetrati on by a mal e penis of th e victi m was possible and was consi stent wit h the history that the victim gav e him. T his issue is without m erit.

VI. Sentenci ng

In this issue, Defendant argues t hat the co urt erred in f inding t hree enhancement factors, findingno mitigat ing factors, and in ordering the sentences on the four rape co nvictions to be serve d consecu tively.

When an accused chall enges the lengt h, range, or the mannerof servi ce of
a senten ce, this cou rt has a du ty to condu ct a de novo review of th e sente nce with
a presumption t hat the determinations made by t he trialcourt are correct. Tenn. Code Ann. § 40-3 5-401(d). Th is presump tion is "conditioned up on the affirmative showing in the record t hat the trial court considered t he sentencing principl es and all relevant fac ts and circ umsta nces." State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991).-20- In conducting a de novo review of a sentence, t his Court must consider t he evidence adduced at t rial and t he sentencing hearing, the p resentence repor t, the principl es of sentenci ng, the arguments of counsel r

elativ e to senten c ing alternatives, the natur e of the offe nse, an d the de fendan t’ s poten tial f or rehabilitation. Tenn . Code Ann. § 4 0-35-21 0; State v. Parker , 932 S.W.2d 945, 955- 56 (Tenn . Crim App . 1996).

If our rev iew ref lects t hat the trial court followed the statut

ory sentenci ng procedure, imposed a lawful sentence after having given due consider ation and properweight to t he factors and principa ls set out underthe sentenci ng law, and t hat the trial court's findings of fact are adequately

supported by t he record, t hen we may not modify th e sente nce eve n if we wo uld have preferred a different re sult. State v. Fletcher , 805 S.W .2d 785 , 789 (T enn. C rim. App . 1991). Upon reviewof the recor d,
we find that

the tri al court consi dered the proper senten cing princ iples and stated its
reasons and findi ngs on the record. Therefore, r eview by this court

is de novo with
a presumption of

correctness . However, even though tri al court conside red th e propersentencing principl es, we hold, as specifi ed below, that the court e rrone ously applied two en hancem ent factors and failed to consider on e mitigating factor.
A. Length of Sentences The trialcourt found that thr ee enh a ncem ent fac tors we re app licable to all offenses for which Defendant had been convicted: (a) The personal inj uries inflictedupon t he victim were particularly g reat; (b) The offense inv

olved a vi ctim and was c omm itted to gratify the defen dant’s de sire for plea sure or e xcite m ent; and-21- (c) The defend ant abu sed a p osition of p rivate trust.
See Tenn. C ode Ann . § 40-35-114 (6), (7) and (15).
In applyi ng enhancement factor (6), t he trialcourt stated the fol lowing: Now, w e’ve had no evidence i n the case fr om psycho logists or psychiatrists about the consequences of the defendant’s

criminal acts upon her, although she was very young, and the evidence was that the defenda nt’ s abuse of her sexual ly began at age five. But I did observe her demeanorwhile she was testify ing and she was very distraught

throughou t her testimony, sh e cri ed and sobbed almost throughou t her testimony. C ert ai nly the observati on th is Court would make, in l ooking at her as compared wit h ot her vi cti ms of

si mi la r age who h ave testif ied in t his court

in other cases over a peri od of time, is that s he obviously

suffers gr

eatly f rom the things

that have been d one to h er and I thin k that #6 is , i n fact , an enhancement factor

in the case.
The term “personalinjury ” as used in enhancement factor (6) is broad en ough to embrace the emotionalinjuri es and psychologi cal scarrin g sus tained by the v ictim of a sexua l offense. See e.g. , State v. Melvin , 91 3 S. W.2d 1 95, 203 (Ten n. C ri m. App.), perm. to appeal denied (Tenn. 1995 ); State v. Smith , 891 S.W.2d 922, 930 (Tenn. Crim. A pp.), perm. to appeal denied (Ten n. 199 4). Ho weve r, befor e this factor may beused to enhan ce a sen tence w ithin the ap propriate range, th e State
mus t est ablish that the emo tional in juries a nd ps ycholo gical sc arring are “pa rticularly great.” Tenn . Code Ann. § 4 0-35-11 4(6); see State v. Lorenzo Puente Salazar , C.C.A. No. 02-C-0 1-9105-CR-00098, Shel by County (Tenn. Cr im. App., Jac kson, Jan. 15, 1992). In Salazar , this Court held t he following:

Clearly, rape is injuri ous pe r seto the body and mind of the victi m. In thi s regard, t he legisl ature has seen fit to enhance the offe nse to aggra vated rape if a child is involved. In considerat ion of this auto matic en hance ment, it is questi onable that a trialcourt is entitl ed to rely so lely upon the ag e of the victim a s a ba sis to fin d that the-22- mental traum a is ‘particularly gr eat.’ Furthe r, the re cord is totally devoid o f an y evidence from which the trial court could determine that the mental disturbance shown in the record was greater t han, less t han, or equival ent to that which is o rdinarily involve d with this se rious offen se.
Id . at 7-8.

The Tennessee Supreme Court in State v. Kissinger , 922 S.W.2d 482, 487-88 (Tenn. 1996), loo ked for m edical or p sycholo gical proo f to determine if the victim ’s injuri es were “ particu larly great.” Finding none, the cour t determined t hat appli cation of enhancement factor (6) was i nappropriate.

In the instant case, t he State did not prese nt any e videnc e as to the ch ild’s psychologi cal injuries. No psychiatr ists or ps ychologist s testi fied as to any emotional scarring the victim h ad su ffered, and n o evide nce w as pre sente d that th e victim required couns eling for he r emotio nal injuries. But see contra , State v. John Claude Wells, III , C.C.A. No. 0 1-C-01-95 05-C R- 00146 , Davidso n Cou nty (Ten n. Crim. A pp., Nashvill e, June 6 , 1997), perm. to appeal denied (T enn. 1998 ); State v. Robert J. Burton, Sr. , C.C. A. No. 02C01-9507-CC-00193, Weakley County (Tenn. Crim. A pp., Jackson, June 1 0, 1996 ), perm. to appeal denied (Tenn. 1996). The e vidence of physical injury

to the vi ctim in t his case was a part ial tear to her hymen and h er testimony

that she bled for two days follow ing pen etration. But see contra , State v. James Lloyd Jul ian, II , C.C. A. No. 03C01-9511-CV-00371, Loudon County (Tenn. Cri m. App., K noxville , July 24, 199 7), per m. to appeal deni ed (Tenn . 1998); State v. Roy L. Sherrod , C.C. A. No. 02-C-01-9510- CR-00331, Shel by Co unty ( Tenn . Cr im. App., Jackson, July 26, 19 96), perm. to appeal denied (Tenn. 199 7). Accordingly,
we find tha t althou gh the victim certain ly suffered i njuries, those inj uries were not-23-

“particu larly great” as con templated by t he s tatute for enhancement purposes. Therefore, enhanc e ment factor (6) should not have been appli ed to any of t he convictions.

Relative to enhancementfactor (7), De fenda nt argu es tha t there is nothin g in the record to show that he com mitted the offens es to gratify his desire for plea sure or excitem ent. See Tenn. Code Ann. § 40-35-114(7). In applying thi s factor to the convicti ons, the t rial cour t stated t he following: The character of

rape has many faces. It can be one of oppression, of m ale dominance, of punishment, or

it can be for plea sure a nd exc iteme nt. I think the evid ence i n this case clearly sho w that it was to gratify th e defe ndan t’s desire for plea sure o r excit e ment, and I t hink that distin guishes this case i n an enhancement way, and so I believe t hat is a val id enhancement consi deration. Initially, we note that a necessary el ement of aggravated sexual battery as charged is sexual contact whi ch is defi ned as the intentional touching of an intima te part or the cl othing over such inti mate part "for the pur pose o f sexual arousalor gratification." Tenn. C ode Ann . § 39-1 3-501( 6); see Kissinger , 922 S.W.2d at 489-90 (Ten n. 199 6). Be caus e a fac tor can not be applie d if it is also an essential element of the o ffense as cha rged in the ind ictme nt, enh ance men t factor (7 ) is inapplica ble to the fo ur aggra vated se xual batte ry conviction s.
Howeve r, factor (7) is not an essentialelement of aggr avated rapeor rape of
a chi ld and m ay be co nsidere d as an approp riate enh ancem ent factor. See Stat e
v. Adams , 864S.W.2d 3 1, 34 -35 (Te nn. 1993 ). In Kissinger , our suprem e court recogn ized the d ifficulties in esta blishing fac tor (7):

Enhancement factor (7), un like mos t of th e oth er sentencing factors, call s int o que stion a defen dant's reasons for comm itting a crime. Hum an motiva t ion is a-24- tangled web, always complex a nd multifaceted . To prove defen dant's motive s will always be a di fficult task. But the legisl ature, in its wisdom, has placed that obl igation on the state wh en the sta te seeks an enh anced senten ce. 922 S.W .2d at 491
. We are ofthe opinio n that the S tate me t its burden of proof in thi s case that the rape wa s sexua lly motivated to gratify De fendan t’ s des ire for pleasure or excitem ent. There were severalinstancesof sexual conduct by Defendant wi th the victim occurring o n differ ent occasions. Defendant penetr ated the victi m by inserti ng his penis in t he victi m's vagina, the vict im performed fel latio on Defendant, and Defendant per

formed c unni li ngus

on t he v ict im. The victi m testifi ed as foll ows about one incid ent: [Defen dant] pulled down my shor ts and pan ties and he told me tha t he had to check and se e if I h ad been with any boys . Then h e stuck h is tongue in my vag ina.

. . . [A]fter he g ot d one h e to ld m e , he said, ‘N o, you h aven’t been with any boys,’and then he said, ‘ [vict im ], I’ m going to do wha t I usually do ,’ and th en hesta rt ed r ubbi ng my vagina and masturbating and then he ejacu lat ed on me and the n he wip ed it off with a h andke rchief. In regards to t he incident of penile penet ration, the vict im testi fied that she asked the victim to stop and he ask ed her, “Do you want

me to hurry upand get done,” and she told him th at she did
.
Although orgasm is insuf ficien t, in and of itself, to est ablish t hat Defendant committed rape to gratif y his d e sire for p leasu re or ex citem ent, wh en tha t fact is
v iewed alo ng with other circumstances i n the case, we f ind this factor to be appropriate. See Kissinger , 922 S.W .2d at 490 -91. De spite Defendant's deni al that he committed the offenses, the evidence supports the applicat ion of fac tor (7) by a-25-

preponderance of the evidenc e. See State v. Carter , 908 S.W.2d 410, 413 (Tenn. Cri m. App.), perm. to appeal denied (Tenn. 1995) (preponderance of the evidence st andard applies to factual de terminations n ecessary for en hancem ent factor). Furthermore, the jury con cluded beyond a reaso nable d oubt t hat the d efend ant's intenti onal touching was for the pu rpose of sexualarousal or gr atifi cation to convict the defenda nt of fou r counts of aggravated sexual bat tery. Under these circum sta nces, w e hold that the record supp orts the applic ation o f factor (7 ) in senten cing De fendan t for the agg ravated ra pe and rape of a child con victions.

The court a ls o found as an enhancement factor the Defendant abused a positi on of priv

ate trust . Tenn. Code Ann. § 40-35-114(15) . We note that Defendant does not specifi cally co ntest theapplic ation o f this fac tor on a ppea l. We believe this enhancement factor c learly ap plies, a nd ob viously the trial court ga ve it great w eight. Defendant’s status as stepfat her while l iving wi th the vi ctim’s mother is a suff icient basis for senten ce enh ancem ent und er factor (1 5). Adams , 864 S.W.2d a t 34. A
more seriousviolat ion of private tr ust is har d to imagine. Accordingl y, we fi nd that this enhancement factor appropriate for all convi ctions.

In conclusion, we find that enhancement factor (6) is ina pplicable to all ei ght convictions, enha ncem ent fac tor (7) is o nly applicabl e to the fou r rape convictions, and enhancement factor (15) is applicabl e to all eight convictions.

With re spect t o mitigat ion, Defendant merely mentions that a few mi tigati ng factors shou ld have been applie d whic h inclu de no prior crim inal rec ord, his employment record , his limited education , and his financial ass istance to his fam ily. The pre-sentence r

eport reveal s that a sear ch was condu cte d for pri or criminal-26-

offensesin Greene C ounty and n one were found. We find theabsence of a cri minal record to be appli cable in mit igation, although l ittl e weight shoul d be afforded it. This Court has also hel d that where Defendant was convi cted of sex offenses i nvolvi ng minors, favorabl e considerat ion based upon his family c ontribu tions a nd wo rk ethic
w as not approp riate. See State v. McKnight , 900 S.W.2d 36 (Tenn. Cri m. App. 1 994), per m. to appeal deni ed (Tenn. 1995). Further, we find no evi dence in the record as to how his l imited education affected his actions againsthis stepdaughter in this case , so this facto r will not be a pplied.

In summary, we believ e one mitigat ing factor, Defenda nt 's lack of a prior criminal record, shoul d be considered r elativ e to the l ength of the s entences imposed. See T enn. Code Ann. § 40-35-113( 13). However, although t his factor shou ld be considered, we do not believe it is ent itled t o signif icant wei ght in the context o f this case.

Even though the tri al court inap propriately appli ed one enhancement factor as to the aggravated sex ual batter y convict ions and one enhancement factor as to a ll convicti ons and failed to app ly one mitigating facto r, we find that the proof su pports
a twelve (12 ) year sen te nce for ea ch aggravated sex ual batter y convict ion and a twenty-five ( 25) y ear se ntenc e for ea ch ag grava ted rap e and rape o f a child convicti on. Defen dant is not en titled to a reduc tion in s enten ce m erely because we conclude on appeal that the trial court incorrect ly appli ed sentencing and mi tigati ng factors. State v. Hayes , 899 S.W.2d 175 S.W.2d 175, 186-87 (Tenn. Crim . App.), perm. to appeal denied (Tenn . 1995).-27- In Hayes , a pane l of this Cou rt stated the following: [E]ven if we determine that fewer factors should appl y than used by the tr ial cou rt, this does n ot mea n that the le ngth of the sente nce is au tomatica lly reduced . That i s, if the same degree of cul pabili ty an d negative ci rcumstances relate to the remain ing appli cable factors, the original enhan ceme nt may s till be appro priate.
Id

. Such is the case h ere. The defendant was charged with the care and controlof the victim, yet he abuse d that pos ition of trust. We find the length of the sentences imposed by the t rial cour t to be appropriate.

B. Consecutive Sentences Next, the defendant

contends that

the tri al court erroneou sly impo sed
consecu tive sentences. I n imposing consecut ive sentence s to the aggravated rape and rape of a chi ld convic tions, t he court stated the fol lowing: The defendant qual ifies for consecut ive sentenci ng under Tennessee Code Anno tated [s ection ] 40-35 -115 w hic h was in effec

t when all of

these offenses are charged, and i t sa ys this, that the defend ant can be sen tenced to consecu tive sentences f o r convic tions if th e defe ndan t is convictedof two or more , and here it’s eight statuto ry o ffens es involving se xual abu se of a m inor, with considerati on of the aggravating ci rc umstances arisi ng from the relation ship b etwee n the d efend ant an d victim or vi cti ms since she was fi ve, time span of defe ndan t’s undet ected sexual act ivit y, the nat ure and scope of t he sexual acts pervasive and extent of residu al, physical and mental dama ge to th e vi cti m whi ch s eemssignificant. In addition to that t he child ra pe statue now woul d bolster that.

. . . The right th in g for the right reasons seems to me to be thi s, that this de fendan t, for the thing s that he’s done to this child ov er a long peri od of time, should not be i n a positi on to be re lease d from custo dy. Th at’s ha rsh, tha t’s hard for m e, but I think it’s th e truth . . . .-28- In this cas e, De fenda nt was convic ted of a total of e ight offe nses involv in g sexual abuse of his st epdaughter. Defendant's conduct occurred overa long peri od of time and the nat ure and scope of t he defendant' s sexual acts were extensive. Although we did not find there to be “pa rticularly great” injury to th e vic tim, we certain ly believe thatthere was enough phys ical and emoti onal damage to just ify t he applicat ion of Tenn. Code Ann. § 40-35 -115(b)(5) . However, a f inding of Tenn. Code Ann. § 40-35-115(5)does not end our i nquiry i nto the validi ty of consecutive sentencing. Instead, T enn. C ode An n. § 40-3 5-115 re quires fu rth er review of whetherconsecutive sentences are necessa r y to protect the publ ic from the defendant ’s p ossible future criminal conduct and whether the aggregate sentence is reaso nably related to the severity of t he defendant’s present offenses. Sentencing Commission Comments, Tenn. Code Ann. § 40-3 5-115; Te nn. R. Crim . P. 32(c)(1);
se e also State v. Wilkerson , 905 S.W .2d 933 (Te nn. 1995). Fro m our de novo review of the recor

d, we conclude t hat the tri al court di d not err i n imposing
consecu tive sentences . The trial court found that the confineme nt was nece ssary to p rotect t he public and t he victi m from future criminal conduct of Defend ant
. Furthermore, because the pro gressive egr egious natureof Defendant’ s eight convicti ons occu rred ov er a sig nifican t span of time with his own stepd aughter, the
consecu tive senten ces are reason ably related to the seve rity of t he c ri me s. Defendant has fail ed to carry his burden to show that t he trialcourt’s sentence was improp er. This iss ue is witho ut merit.

Conclusion-29- The judgm ent of C ount F our is modified to reflect a convict ion of aggravated rape rather

than rape of a

child. In all other aspects, the j udgments are aff irmed.

____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ GARY R. WA DE, Presiding J udge

___________________________________ DAVID H. WELLES , Judge