FILED

April 13, 1999

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

OCTOBER SESSION, 1998

STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9804-CR-00129

)

Appellee, ) GREENE COUNTY

)

V. ) HON. JAMES E. BECKNER, JUDGE

)

BOBBY DALE FRANKLIN, SR. ) (AGGRAVATED SEXUAL 

) BATTERY; AGGRAVATED RAPE; 

Appellant. ) RAPE OF A CHILD) 

FOR THE APPELLANT: FOR THE APPELLEE:

GREG W. EICHELMAN JOHN KNOX WALKUP 

District Public Defender Attorney General & Reporter

MICHAEL A. WALCHER ELIZABETH B. MARNEY

Assistant Public Defender Assistant Attorney General

1609 College Park Drive 2nd Floor, Cordell Hull Building

Morristown, TN 37813 425 Fifth Avenue North 

Nashville, TN 37243

C. BERKELEY BELL, JR.

District Attorney General

ERIC D. CHRISTIANSEN

Assistant District Attorney General

109 South Main Street, Suite 501

Greeneville, TN 37743

OPINION FILED ________________________

AFFIRMED AS MODIFIED 

THOMAS T. WOODALL, JUDGE
-2-

OPINION

The Defendant, Bobby Dale Franklin, appeals as of right his convictions for

aggravated sexual battery, aggravated rape, and rape of a child, following a jury trial

in the Criminal Court of Greene County. The convictions are as follows:

OFFENSE DATE OF SENTENCE

OFFENSE

(as alleged in

presentment)

Count One: aggravated sexual battery between March twelve (12) years

1990 and ___

1992

Count Two: aggravated sexual battery ___ 1992 twelve (12) years

Count Three: aggravated rape summer 1992 twenty-five (25) years

Count Four: rape of a child between ___ twenty-five(25) years

1992 and 

___ 1993

Count Five: rape of a child June 3, 1995 twenty-five (25) years

Count Six: rape of a child June 4, 1995 twenty-five(25) years

Count Seven: aggravated sexual battery between June 5 twelve (12) years

and June 9, 1995

Count Eight: aggravated sexual battery June 29, 1992 twelve (12) years

The trial court ordered his four convictions for rape to run consecutively with each

other and concurrent to the four convictions for aggravated sexual battery, for an

effective sentence of 100 years. In this appeal, Defendant raises the following six

(6) issues: 
-3-

 I. Whether the trial court erred in adm itting

certain testimony;

 II. Whether the trial court’s verdict forms were 

 improper;

III. Whether Count Four should be dismissed

(Count Five of the presentment);

IV. Whether the trial court erred in excluding

certain testimony;

 V. Whether the trial court erred in allowing the

testimony of Dr. Reardon regard ing

penetration; and 

VI. Whether the trial court committed sentencing

errors.

After a careful review of the record, we affirm the judgm ent of the trial court.

Summary of the Facts

Testimony at trial revealed that on June 9, 1995, the twelve-year-old victim,

T.S. (we will use the initials rather than the full name of the victim), insisted on going

to work with her mother. While the mother and daughter were in the car, the victim

started crying and said that Defendant, the victim’s stepfather, had raped her. The

mother immediately notified authorities and took T.S. to the hospital emergency

room to be examined.

Dr. Donald Verlin Tucker, Jr. examined T.S. at the emergency room and his

examination revealed a history of sexual abuse consistent with that which she had

told him. He testified that he examined the victim five days after the penile

penetration had allegedly occurred. He testified that the genitalia examination was

normal except for the absence of a hymen. 
-4-

Dr. Peter Reardon, an obstetrician/gynecologist, took a medical history of the

victim on June 14, 1995, which included her statement that she had bled for two

days after penile penetration on Sunday, June 4, 1995, and had experienced two

other vaginal penetrations, one digitally and one orally. Dr. Reardon discovered two

small broken areas on the victim’s hymen when doing a pelvic examination, but

found no recent trauma to the vagina or any lacerations. Dr. Reardon said that a

“recent trauma” to the hymen takes about six to eight days to heal after being torn

and that after ten days it would look like a healed wound. 

The victim testified at trial about various types of sexual abuse inflicted by

Defendant, described the circumstances surrounding each incident of abuse, and

gave approximate dates for most incidents based on where the family was living,

what car the family was driving, and birthdays of family members. The time span for

Defendant’s sexual abuse occurred over a seven-year period beginning when T.S.

was five and ending when she was 12.

T.S. testified that her family moved to the “blockhouse” when she was about

five years old and that a barn was located on the property. While the family lived in

the “blockhouse,” Defendant took the victim to the barn to feed the cats. In the barn,

Defendant placed her on stacked bales of hay, removed her panties, and fondled

her. T.S. did not tell her mother about this incident before June 9, 1995, although

she testified that she believed that this incident occurred in 1987.

In 1990, when the victim had finished the second grade, the family moved to

a house on Snake Hollow Road. At that time, the family owned a red Thunderbird.
-5-

The victim said that she and Defendant were in the red Thunderbird traveling

towards the family’s prior residence, the “blockhouse,” when Defendant began

“playing with himself,” pulled to the side of the road, and stopped the car. Defendant

then walked to the passenger side of the car, removed the victim’s “bottom clothes,”

and started rubbing her vagina and masturbating. Defendant ejaculated on T.S. and

wiped the ejaculate off with his bandana handkerchief. The victim did not tell her

mother about this incident before June 9, 1995, because she was afraid that

Defendant might hurt her by “whipping” her. Upon objection by Defendant, the trial

court instructed the jury to disregard the victim’s statement about Defendant

“whipping” her. Defendant moved for a mistrial based on that statement, but the trial

court overruled it.

T.S. testified that while she and Defendant were riding in a red Buick car he

had purchased that day, Defendant said he needed to go to his employer’s garage

to roll up the windows of his garbage truck. Other proof showed that the vehicle was

purchased on June 29, 1992. While the victim was sitting in the Buick, she locked

the car doors because she was afraid that Defendant “might try something.” After

Defendant told the victim to unlock the doors, he took her out of the car, laid her on

a pallet, removed her panties, got on top of her, and began rubbing his penis against

her. When the victim said “you promised you wouldn’t do this again,” Defendant told

her that this was the last time.

Sometime before her brother’s August 22nd birthday in an unspecified year,

Defendant, the victim, and her brother were taking items to the garage at the Snake

Hollow Road residence. Defendant sent the victim’s brother to feed the chickens.

When Defendant and T.S. were alone in the garage, Defendant rubbed her vagina,
-6-

masturbated, ejaculated, and wiped the ejaculate off her with his bandana

handkerchief. T.S. stated that “this happened several times, about four or five

times.”

On another occasion, Defendant was standing beside the Buick with his pants

unzipped and his penis exposed while the victim’s mother was mowing the yard.

Defendant forced T.S. to put her m outh on his penis and to perform fellatio. 

During the wintertime after the year 1990, Defendant used Vaseline that was

kept on the victim’s mother’s dresser to penetrate the victim digitally in the adults’

bedroom. 

On the Saturday after school ended in 1995, Defendant came into the victim’s

bedroom while victim was reading a book, pulled down her shorts and panties, and

said he was checking to see if she had “been with any boys.” Then he performed

cunnilingus on her. After telling her he was going to do what he “usually” did, he

rubbed her vagina, masturbated, ejaculated, and wiped the ejaculate off with his

bandana handkerchief. Neither the victim’s mother nor brother were at home during

this incident.

On June 4, 1995, again while her mother and brother were away from the

house, Defendant penetrated the victim with his penis in the victim’s bedroom.

Defendant told T.S. that he would kill her if she told anyone. The victim was crying

and bleeding from the penetration and she continued to bleed for two days.
-7-

On June 7, 1995, Defendant, the victim, and her brother went to Kinser Park.

They had been on their way to visit the children’s mother at work, but learned that

the mother could not get off to see them. As the victim and Defendant walked

through the woods at Kinser Park looking for a place to fish, Defendant began

playing with the victim’s breasts through her clothes. T.S. said that she tried to get

away, but Defendant told her, “If you try to get away it makes me want you more.”

At the conclusion of the victim’s testimony on direct examination, counsel for

Defendant objected to her statement that Defendant had sexually battered her four

or five times in the Snake Hollow garage. The basis for defense counsel’s objection

was that these were “other bad acts” not covered by the Bill of Particulars.

Overruling the motion for a mistrial, the court stated that the charges could be

defined specifically enough to avoid any jury confusion.

Samera Zavaro, a forensic scientist with the TBI, testified that the fitted bottom

sheet from the victim’s bed tested positive for blood and semen. She further testified

that after DNA testing on the bed sheet, Defendant could not be excluded as the

contributor of the sperm on the victim’s bed sheet. 

Defendant testified and denied that he had molested or had sex with his

stepdaughter.

The jury found Defendant guilty of four counts of aggravated sexual battery

and four counts of rape of a child. As reflected in the judgment form, the trial court

changed one of the child rape convictions (Count Three) to aggravated rape

because the State was not able to establish that 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. Admissibility and Effect of Certain Testimony

Defendant argues in this issue that the “State was allowed, over objection, to

introduce irrelevant prejudicial uncharged conduct.” Specifically, Defendant

contends that the victim was allowed to testify about an incident that was time-barred

by the statute of limitations. Defendant asserts that the count of the presentment

charging this offense had already been dismissed. He also contests the victim’s

testimony that Defendant “whipped her hard” and that he sexually assaulted her “four

or five times” in the garage at the Snake Hollow residence. Finally, he argues that

it was improper for the victim’s mother to testify that Defendant had threatened to kill

her and to hurt the victim. 

First, Defendant contends that the victim was allowed to testify to an allegation

of aggravated sexual battery that was dism issed as being time-barred by the statute

of limitations. This incident allegedly occurred in 1987 when the victim was about

five years old. The victim testified that Defendant took her to the barn to feed the

cats, and there he removed her panties and fondled her. First of all, Defendant has

waived this claimed error on appeal because he did not enter a contemporaneous

objection to the testimony. Tenn. R. App. P. 36(a); State v. Killebrew, 760 S.W.2d

228, 235 (Tenn. Crim. App.), perm. to appeal denied (Tenn. 1988). However, even

if this issue is addressed, it is without merit. The record does not indicate what

happened to this particular count, so we cannot say whether this count was

dismissed or severed. There should be no uncertainty regarding the status of a
-9-

count of a presentment, and it should be noted that it is the responsibility of the

appellant to present an adequate record for review on appeal. Regardless, this

charge would not be time-barred, as Tennessee Code Annotated section 40-2-

101(d) and (e) which became effective in 1985, is applicable to this charge. See

Morgan v. State, 847 S.W .2d 538, 540 (Tenn. Crim. App. 1992) (citing 1985 Acts,

ch. 478, § 21). This statute states that prosecution for aggravated sexual battery,

among other offenses, had to commence no later than the date the child attains the

age of majority or within four (4) years after the commission of the offense,

whichever occurs later. Tenn. Code Ann. § 40-2-101(d). Therefore, prosecution

would have had to commence in 1991 or before the victim reached the age of 18.

In the instant case, commencement of prosecution for this offense occurred in 1997

at which time the victim was only 14 or 15 years old.

Second, Defendant has also waived any objection to the victim’s testimony

that Defendant took her to the Snake Hollow garage and sexually battered her “four

or five times” because Defendant again made no contem poraneous objection to this

testimony. Tenn. R. App. P. 36(a); Killebrew, 760 S.W.2d at 235. At the conclusion

of the victim’s testimony on direct examination, defense counsel did object to this

statement and asked for a mistrial. The court said that the charges could be defined

specifically enough to avoid any jury confusion. The trial court did give a jury

instruction explaining the limited purpose of the evidence and explained that any

evidence that Defendant had committed a crime or crimes other than those charged

could not be considered to prove his disposition to commit the charged crimes. The

jury is deemed to have followed the court’s instruction, and we find the instruction

sufficient to cure any prejudice to Defendant. See State v. Harris, 839 S.W.2d 54,

72 (Tenn. 1992). 
-10-

Next, Defendant did make a contemporaneous objection to the victim’s

testimony that she was afraid of Defendant because he “whipped her hard.” In the

presence of the jury, defense counsel asked for an instruction concerning the

testimony about the whipping, and the court instructed that “the jury should disregard

that and not consider it for any purpose.” The jury is presumed to have followed the

trial court’s instruction. Id. Moreover, this testimony by the witness does not

“affirmatively appear to have affected the result of the trial on the merits.” Tenn. R.

Crim. P. 52(a). Accordingly, any error that occurred as a result of this victim’s

unsolicited statement was harmless. Tenn. R. App. P. 36(b).

Finally, Defendant states that the victim’s mother should not have been

allowed to testify that Defendant had threatened to kill her and/or hurt the victim.

Defendant did not make a contemporaneous objection. See Tenn. R. App. 36(a).

In any event, we do not find this evidence to have affected the result of this trial.

Tenn. R. Crim. P. 52(a). This issue is without merit.

II. Verdict Forms

In his second issue, Defendant claims that the trial court’s verdict forms

constituted improper commentary on the facts. The verdict forms submitted to the

jury specified the eight charged crimes as follows:

[Count One] after the parties moved to Snake Hollow

Road (after March, 1990) and before the parties

purchased a Buick automobile (June, 1992), when the

defendant and the victim, [ ], were in a red Ford

Thunderbird and were going to their former residence, the

block house;
-11-

[Count Two] at the Snake Hollow Road residence in the

summer of 1992 during daylight, in the garage;

[Count Three] by forcing [ ], the victim, to perform fellatio

on [Defendant] at the home on Snake Hollow Road after

June 29, 1992, the date of purchase of the Buick

automobile and at the back of the Buick;

[Count Four] by the digital penetration of [the victim], which

occurred in the fall of 1993 and before Thanksgiving Day

in the defendant’s bedroom;

[Count Five] by cunnilingus on June 3, 1995 of [the victim]

in her bedroom at the Snake Hollow Road residence;

[Count Six] in her [the victim’s] bedroom on Sunday, June

4, 1995;

[Count Seven] on Wednesday, June 7, 1995 at Kinser

Park while [Defendant] and the victim, [ ], were walking in

the woods;

[Count Eight] at the Snake Hollow Road residence

between March, 1990 and June 9, 1995 and while the

defendant and the victim, [ ], were test-driving the Buick

(purchased on 6-28-92) and in the garage of the

defendant’s employer.

After reviewing the verdict forms, we find that the trial court did not offer

unnecessary comm entary on the facts as alleged by Defendant. Rather, the forms

contain enough specific information to comply with the requirement that the State

elect the particular offenses for which convictions were sought. See State v.

Shelton, 851 S.W.2d 134 (Tenn. 1993); Burlison v. State, 501 S.W.2d 801 (Tenn.

1973). Since the victim did testify to many sexual crimes comm itted by Defendant,

the trial court ensured unanimity in the jury’s decision by being specific in the verdict

forms. See Shelton, 851 S.W .2d at 137. This issue is without merit.

III. Dismissal of Count Four
-12-

In his third issue, Defendant claims that Count Four should be dismissed

because the victim’s testimony as to when the digital penetration occurred did not

specify a year. Defendant contends that without a specific year the jury could not

determine if the digital penetration was “an alleged aggravated rape or a child rape.”

We note that the count Defendant is contesting is Count Five in the presentment and

Count Four on the verdict form and judgment. 

Defendant fails to cite any authority to support his argument, and therefore this

issue should be waived. See Tenn. R. App. P. 27(a)(7); State v. Dickerson, 885

S.W.2d 90, 93 (Tenn. Crim. App.), perm. to appeal denied (Tenn. 1993). However,

even if this issue is addressed, it is without merit. 

The count in the presentment Defendant contests alleges the following:

[Defendant], between ___, 1992, and ___, 1993,

unlawfully committed the offense of rape of a child by

knowingly engaging in unlawful sexual penetration of

[victim], a child less that thirteen years of age, by sticking

his finger inside her vagina; a class A felony in violation of

T.C.A. 39-13-522, and against the peace and dignity of the

State of Tennessee.

Prior to July 1, 1992, the unlawful sexual penetration of a victim less than

thirteen (13) years of age was designated as aggravated rape. Tenn. Code Ann. §

39-13-502(a)(4)(1991). That portion of the aggravated rape statute referring to

victims under thirteen (13) years of age was then “moved to § 39-13-522.”

Sentencing Commission Comments, Tenn. Code Ann. § 39-13-502. In fairness to

Defendant, panels of this Court have indicated that it was codified “as a separate,

new crime” at Tenn. Code Ann. § 39-13-522. See State v. Banes, 874 S.W.2d 73,

78, n.4 (Tenn. Crim. App. 1993), perm. to appeal denied (Tenn. 1994). However,

the elements of aggravated rape of a child less than 13 years of age are identical to
-13-

the elements of rape of a child. The classification of the offense as an A felony

remained the same. See Tenn. Code Ann. §§ 39-13-502(b) and -522(b). The only

significant difference is that each sentence for convictions of an offense occurring

on or after July 1, 1992, must be served undiminished by sentencing credits. See

Tenn. Code Ann. § 39-13-523. The undiminished sentencing provision of rape of

a child requires a showing that the penetration occurred on or after July 1, 1992,

before one can be convicted of the offense designated as rape of a child. If there

is insufficient proof that the offense occurred on or after July 1, 1992, one could only

be convicted of aggravated rape. This situation is akin to one where a sentence for

a specified crime increases after a certain date. Under such circums tances, a

person must be sentenced within the parameters of the sentence existing at the time

of the offense, not the time of sentencing.

 At trial, the victim’s testimony did not specify when the offense occurred.

Testimony in regards to this count was as follows:

State: I’ve asked the court officer to pass to you

Exhibit #16. Would you look at that, please?

Do you recognize that?

Victim: Yes.

State: Where was that jar of Vaseline kept?

Victim: On my m other’s dresser.

. . . 

State: Did you ever have occasion to be in

[Defendant’s] bedroom?

Victim: Yes.

State: Did you ever have occasion to . . . . excuse

me, let me ask the question this way. On an

occasion that you were in his bedroom did it

involve Exhibit #16, that jar of Vaseline?
-14-

Victim: Yes.

State: Do you remember when that occurred?

Victim: I know it was in the winter.

State: Do you know whether or not it was before or

after Thanksgiving Day?

Victim: I believe it was before.

State: Do you know what year it was?

Victim: I cannot recall.

State: Was it there at the Snake Hollow Road

residence?

Victim: Yes.

State: [D]o you remember whether it was before or

after the purchase of the Buick?

Victim: I don’t recall.

State: Would you tell the ladies and gentlemen of

the jury what happened on the occasion

involving the jar of Vaseline?

Victim: It was in his bedroom and my mother’s room

and [Defendant] had took [sic] the jar of

Vaseline and put it on his finger and pulled

my pants down and he stuck his finger in my

vagina and I told him that it hurt me. He

pulled his finger back out and told me to get

up.

State: Did you tell your mother about that?

Victim: No, I did not.

The foregoing testimony demonstrates that the State did not establish the

exact date that this particular incident occurred. The only time frame the victim could

testify to was that it occurred after they moved to the Snake Hollow residence which

was earlier established as being sometime in the year 1990. The count in the

presentment dealing with the digital rape states that Defendant stuck his finger
-15-

inside the victim’s vagina “between ___, 1992, and ___, 1993.” The Bill of

Particulars states that the single incident of digital penetration occurred before

Thanksgiving Day of 1993. However, contrary to the State’s argument, this is not

enough to satisfy the State’s burden of proving that the incident occurred after July

1, 1992, in order to establish rape of a child. These documents were not admitted

into evidence and it was the State’s burden to clearly establish through evidence at

trial when the alleged incident occurred.

However, to dismiss this count altogether would be an extreme misplacement

of form over substance. The act of “unlawful sexual penetration of a victim” who “is

less than thirteen (13) years of age,” did not cease being a crime at midnight on

June 30, 1992; it merely ceased being codified at Tenn. Code Ann. § 39-13-502.

See Tenn. Code Ann. § 39-13-522(a). Again, the elements of aggravated rape and

rape of a child are the same and the State did prove beyond a reasonable doubt

Defendant’s guilt of the unlawful sexual penetration of a child less than thirteen years

of age. However, since the State did not clearly establish when the incident

occurred, we hold that Defendant is guilty of aggravated rape instead of rape of a

child in Count Four (Count Five of the presentment). The judgment must be

modified accordingly.

IV. Excluded Testimony

In this issue, Defendant contends that he was prevented from presenting a

defense when the trial court excluded testimony that the victim had contact with “sex

toys,” that she appeared to engage in sexual conduct with her brother, that her
-16-

brother had raped a cousin, and that she had knowledge of the male anatomy and

physiology.

Evidence of a victim’s sexual behavior other than the sexual act or acts at

issue is governed by Tennessee Rule of Evidence 412. Rule 412 does apply to

cases involving the rape of a child. See State v. Terrell Dion Cowans, C.C.A. No.

02C01-9610-CC-00359, Henry County (Tenn. Crim. App., Jackson, Nov. 20, 1997),

perm. to appeal denied (Tenn. 1998). The rule limits the admissibility of evidence

of specific acts of sexual conduct of the victim, as well as evidence of the victim’s

sexual reputation.

At issue is the provision which may permit the admission of sexual behavior

of the victim with persons other than Defendant “to prove or explain the source of

semen, injury, disease, or knowledge of sexual matters.” Tenn. R. Evid.

412(c)(4)(ii). “Knowledge of sexual matters” is often sought to be introduced in child

sexual abuse cases. Where the State’s proof suggests that the child victim’s

knowledge of sexual matters resulted solely from the incident with the defendant, the

defendant is permitted to show that the victim acquired the familiarity from sexual

activity with third persons. Advisory Commission Comments, Tenn. R. Evid. 412.

However, before evidence regarding a victim’s “knowledge of sexual matters”

is admissible, the trial court must first determine that the probative value of the

evidence outweighs its unfair prejudice to the victim. Tenn. R. Evid. 412(d)(4). In

holding that the evidence was inadmissible, the court stated the following:

None of that is admissible except . . . I guess maybe

unless I should have said, specific instances of conduct.

So what you have to first have is a specific instance of a
-17-

victim’s sexual behavior, is it admissible unless submitted

in accordance with such and such?

Consent is not an issue. If it were someone other than the

accused it can only be used to rebut or explain scientific or

medical evidence which is not the case. To prove or

explain the source of semen, injury, disease or knowledge

of sexual matters, which is not the case. Or to prove

consent, which is not an issue.

. . . 

Somebody playing with . . . I don’t think playing with a

vibrator would ever be admissible, that I can conceive.

Seeing someone attempting to have sex would not be

admissible.

The only evidence that I have ever seen that could come

in and I think if you read all of 412 it’s clear, is . . . have

you read the definition of sexual behavior? It means

sexual activity of the alleged victim other than the sexual

act that’s the issue in the case. Sexual activity is defined,

isn’t it? Let’s look at it.

The definition of sexual behavior is sexual activity of

someone other than the defendant, and to be admissible

it has to be a specific instance of a victim of sexual

behavior for the purpose of proving consent which is not

an issue, medical evidence which is not an issue, behavior

of the accused which is not an issue . . . .

The only thing I’ve seen a court let in are where one said,

‘Yes, I had consensual sex with her,’ and then you’ve got

to remember it says . . . for knowledge of sexual, the fact

that someone may have attempted to have sex with the

victim or the victim may have played with a so-called,

quote, sex toy, does not impute knowledge of copulation.

I don’t believe any court would stretch it that far.

. . . 

I just don’t believe under any stretch of the imagination

that any court would ever allow those submissions to

come in under Rule 412.

By comments the trial court made in holding the evidence inadmissible, it is

apparent that the court below found the incidents had no probative value. We agree

with the trial court’s conclusion. A decision regarding Rule 412 will not be
-18-

overturned absent a showing that the determ ination was an abuse of the trial court’s

discretion. See State v. Sheline, 955 S.W .2d 42, 46 (Tenn. 1997). Defendant has

failed to show how denying the evidence was an abuse of the trial court’s discretion.

This issue is without merit.

V. Admissibility of Dr. Reardon’s Testimony

In this issue, Defendant argues that the trial court erred in allowing Dr.

Reardon to testify as to his impression concerning penetration and in allowing the

introduction of Exhibit 30 which was Dr. Reardon’s complete examination of the

victim.

Defendant fails to cite any authority in support of this issue and it should

therefore be treated as waived. Tenn. R. App. P. 27(a)(7); Dickerson, 885 S.W.2d

at 92-93; see also Killebrew, 760 S.W.2d at 231-32. In addition, the record reveals

that Defendant did not make a contem poraneous objection to the testimony of Dr.

Reardon or any objection to the admission of Exhibit 30 and this issue should be

waived for these reasons as well. Tenn. R. App. P. 36(a). 

Defendant’s motion in limine requested, in pertinent part, that the trial court

redact “[a]ny oral statement made by the child in this case to physicians that is [sic]
-19-

not for purposes of diagnosis and treatment.” It should be noted that the record

contains no Order disposing of this motion. 

However, even addressed on the merits, Defendant’s argument must fail. On

direct examination, Dr. Reardon testified that he took a medical history from the

victim, that the history was important for purposes of diagnosis and treatment, and

that the victim had told him of three specific incidents of penetration. Dr. Reardon

said that his physical examination led him to conclude that partial penetration by a

male penis of the victim was possible and was consistent with the history that the

victim gave him. This issue is without merit.

VI. Sentencing

In this issue, Defendant argues that the court erred in finding three

enhancement factors, finding no mitigating factors, and in ordering the sentences on

the four rape convictions to be served consecutively.

When an accused challenges the length, range, or the manner of service of

a sentence, this court has a duty to conduct a de novo review of the sentence with

a presumption that the determinations made by the trial court are correct. Tenn.

Code Ann. § 40-35-401(d). This presumption is "conditioned upon the affirmative

showing in the record that the trial court considered the sentencing principles and

all relevant facts and circumstances." State v. Ashby, 823 S.W.2d 166, 169 (Tenn.

1991).
-20-

In conducting a de novo review of a sentence, this Court must consider the

evidence adduced at trial and the sentencing hearing, the presentence report, the

principles of sentencing, the arguments of counsel relative to sentencing

alternatives, the nature of the offense, and the defendant’s potential for

rehabilitation. Tenn. Code Ann. § 40-35-210; State v. Parker, 932 S.W.2d 945, 955-

56 (Tenn. Crim App. 1996).

If our review reflects that the trial court followed the statutory sentencing

procedure, imposed a lawful sentence after having given due consideration and

proper weight to the factors and principals set out under the sentencing law, and that

the trial court's findings of fact are adequately supported by the record, then we may

not modify the sentence even if we would have preferred a different result. State v.

Fletcher, 805 S.W .2d 785, 789 (Tenn. Crim. App. 1991). Upon review of the record,

we find that the trial court considered the proper sentencing principles and stated its

reasons and findings on the record. Therefore, review by this court is de novo with

a presumption of correctness. However, even though trial court considered the

proper sentencing principles, we hold, as specified below, that the court erroneously

applied two enhancement factors and failed to consider one mitigating factor.

A. Length of Sentences

The trial court found that three enhancement factors were applicable to all

offenses for which Defendant had been convicted:

(a) The personal injuries inflicted upon the victim were

particularly great;

(b) The offense involved a victim and was committed to

gratify the defendant’s desire for pleasure or excitement;

and 
-21-

(c) The defendant abused a position of private trust.

See Tenn. Code Ann. § 40-35-114(6), (7) and (15).

In applying enhancement factor (6), the trial court stated the following:

Now, we’ve had no evidence in the case from

psychologists or psychiatrists about the consequences of

the defendant’s criminal acts upon her, although she was

very young, and the evidence was that the defendant’s

abuse of her sexually began at age five. But I did observe

her demeanor while she was testifying and she was very

distraught throughout her testimony, she cried and sobbed

almost throughout her testimony. Certainly the

observation this Court would make, in looking at her as

compared with other victims of similar age who have

testified in this court in other cases over a period of time,

is that she obviously suffers greatly from the things that

have been done to her and I think that #6 is, in fact, an

enhancement factor in the case.

The term “personal injury” as used in enhancement factor (6) is broad enough

to embrace the emotional injuries and psychological scarring sustained by the victim

of a sexual offense. See e.g., State v. Melvin, 913 S.W.2d 195, 203 (Tenn. Crim.

App.), perm. to appeal denied (Tenn. 1995); State v. Smith, 891 S.W.2d 922, 930

(Tenn. Crim. App.), perm. to appeal denied (Tenn. 1994). However, before this

factor may be used to enhance a sentence within the appropriate range, the State

must establish that the emotional injuries and psychological scarring are “particularly

great.” Tenn. Code Ann. § 40-35-114(6); see State v. Lorenzo Puente Salazar,

C.C.A. No. 02-C-01-9105-CR-00098, Shelby County (Tenn. Crim. App., Jackson,

Jan. 15, 1992). In Salazar, this Court held the following:

Clearly, rape is injurious per se to the body and mind of

the victim. In this regard, the legislature has seen fit to

enhance the offense to aggravated rape if a child is

involved. In consideration of this automatic enhancement,

it is questionable that a trial court is entitled to rely solely

upon the age of the victim as a basis to find that the
-22-

mental trauma is ‘particularly great.’ Further, the record is

totally devoid of any evidence from which the trial court

could determine that the mental disturbance shown in the

record was greater than, less than, or equivalent to that

which is ordinarily involved with this serious offense. 

Id. at 7-8. 

The Tennessee Supreme Court in State v. Kissinger, 922 S.W.2d 482, 487-88

(Tenn. 1996), looked for medical or psychological proof to determine if the victim’s

injuries were “particularly great.” Finding none, the court determined that application

of enhancement factor (6) was inappropriate.

In the instant case, the State did not present any evidence as to the child’s

psychological injuries. No psychiatrists or psychologists testified as to any emotional

scarring the victim had suffered, and no evidence was presented that the victim

required counseling for her emotional injuries. But see contra, State v. John Claude

Wells, III, C.C.A. No. 01-C-01-9505-CR-00146, Davidson County (Tenn. Crim. App.,

Nashville, June 6, 1997), perm. to appeal denied (Tenn. 1998); State v. Robert J.

Burton, Sr., C.C.A. No. 02C01-9507-CC-00193, Weakley County (Tenn. Crim. App.,

Jackson, June 10, 1996), perm. to appeal denied (Tenn. 1996). The evidence of

physical injury to the victim in this case was a partial tear to her hymen and her

testimony that she bled for two days following penetration. But see contra, State v.

James Lloyd Julian, II, C.C.A. No. 03C01-9511-CV-00371, Loudon County (Tenn.

Crim. App., Knoxville, July 24, 1997), perm. to appeal denied (Tenn. 1998); State v.

Roy L. Sherrod, C.C.A. No. 02-C-01-9510-CR-00331, Shelby County (Tenn. Crim.

App., Jackson, July 26, 1996), perm. to appeal denied (Tenn. 1997). Accordingly,

we find that although the victim certainly suffered injuries, those injuries were not
-23-

“particularly great” as contemplated by the statute for enhancement purposes.

Therefore, enhancement factor (6) should not have been applied to any of the

convictions.

Relative to enhancement factor (7), Defendant argues that there is nothing in

the record to show that he committed the offenses to gratify his desire for pleasure

or excitement. See Tenn. Code Ann. § 40-35-114(7). In applying this factor to the

convictions, the trial court stated the following:

The character of rape has many faces. It can be one of

oppression, of male dominance, of punishment, or it can

be for pleasure and excitement. I think the evidence in

this case clearly show that it was to gratify the defendant’s

desire for pleasure or excitement, and I think that

distinguishes this case in an enhancement way, and so I

believe that is a valid enhancement consideration.

Initially, we note that a necessary element of aggravated sexual battery as

charged is sexual contact which is defined as the intentional touching of an intimate

part or the clothing over such intimate part "for the purpose of sexual arousal or

gratification." Tenn. Code Ann. § 39-13-501(6); see Kissinger, 922 S.W.2d at

489-90 (Tenn. 1996). Because a factor cannot be applied if it is also an essential

element of the offense as charged in the indictment, enhancement factor (7) is

inapplicable to the four aggravated sexual battery convictions. 

However, factor (7) is not an essential element of aggravated rape or rape of

a child and may be considered as an appropriate enhancem ent factor. See State

v. Adams, 864 S.W.2d 31, 34-35 (Tenn. 1993). In Kissinger, our supreme court

recognized the difficulties in establishing factor (7): 

Enhancement factor (7), unlike most of the other

sentencing factors, calls into question a defendant's

reasons for committing a crime. Hum an motivation is a
-24-

tangled web, always complex and multifaceted. To prove

defendant's motives will always be a difficult task. But the

legislature, in its wisdom, has placed that obligation on the

state when the state seeks an enhanced sentence. 

922 S.W .2d at 491. 

We are of the opinion that the State met its burden of proof in this case that

the rape was sexually motivated to gratify Defendant’s desire for pleasure or

excitement. There were several instances of sexual conduct by Defendant with the

victim occurring on different occasions. Defendant penetrated the victim by inserting

his penis in the victim's vagina, the victim performed fellatio on Defendant, and

Defendant performed cunnilingus on the victim. The victim testified as follows about

one incident:

[Defendant] pulled down my shorts and panties and he

told me that he had to check and see if I had been with

any boys. Then he stuck his tongue in my vagina. 

. . .

[A]fter he got done he told me, he said, ‘No, you haven’t

been with any boys,’ and then he said, ‘[victim ], I’m going

to do what I usually do,’ and then he started rubbing my

vagina and masturbating and then he ejaculated on me

and then he wiped it off with a handkerchief.

In regards to the incident of penile penetration, the victim testified that she asked the

victim to stop and he asked her, “Do you want me to hurry up and get done,” and she

told him that she did. 

Although orgasm is insufficient, in and of itself, to establish that Defendant

committed rape to gratify his desire for pleasure or excitement, when that fact is

viewed along with other circumstances in the case, we find this factor to be

appropriate. See Kissinger, 922 S.W .2d at 490-91. Despite Defendant's denial that

he committed the offenses, the evidence supports the application of factor (7) by a
-25-

preponderance of the evidence. See State v. Carter, 908 S.W.2d 410, 413 (Tenn.

Crim. App.), perm. to appeal denied (Tenn. 1995) (preponderance of the evidence

standard applies to factual determinations necessary for enhancement factor).

Furthermore, the jury concluded beyond a reasonable doubt that the defendant's

intentional touching was for the purpose of sexual arousal or gratification to convict

the defendant of four counts of aggravated sexual battery. Under these

circumstances, we hold that the record supports the application of factor (7) in

sentencing Defendant for the aggravated rape and rape of a child convictions. 

The court also found as an enhancement factor the Defendant abused a

position of private trust. Tenn. Code Ann. § 40-35-114(15). We note that Defendant

does not specifically contest the application of this factor on appeal. We believe this

enhancement factor clearly applies, and obviously the trial court gave it great weight.

Defendant’s status as stepfather while living with the victim’s mother is a sufficient

basis for sentence enhancem ent under factor (15). Adams, 864 S.W.2d at 34. A

more serious violation of private trust is hard to imagine. Accordingly, we find that

this enhancement factor appropriate for all convictions.

In conclusion, we find that enhancement factor (6) is inapplicable to all eight

convictions, enhancement factor (7) is only applicable to the four rape convictions,

and enhancement factor (15) is applicable to all eight convictions.

With respect to mitigation, Defendant merely mentions that a few mitigating

factors should have been applied which include no prior crim inal record, his

employment record, his limited education, and his financial assistance to his family.

The pre-sentence report reveals that a search was conducted for prior criminal
-26-

offenses in Greene County and none were found. We find the absence of a criminal

record to be applicable in mitigation, although little weight should be afforded it. This

Court has also held that where Defendant was convicted of sex offenses involving

minors, favorable consideration based upon his family contributions and work ethic

was not appropriate. See State v. McKnight, 900 S.W.2d 36 (Tenn. Crim. App.

1994), perm. to appeal denied (Tenn. 1995). Further, we find no evidence in the

record as to how his limited education affected his actions against his stepdaughter

in this case, so this factor will not be applied. 

In summary, we believe one mitigating factor, Defendant's lack of a prior

criminal record, should be considered relative to the length of the sentences

imposed. See Tenn. Code Ann. § 40-35-113(13). However, although this factor

should be considered, we do not believe it is entitled to significant weight in the

context of this case. 

Even though the trial court inappropriately applied one enhancement factor as

to the aggravated sexual battery convictions and one enhancement factor as to all

convictions and failed to apply one mitigating factor, we find that the proof supports

a twelve (12) year sentence for each aggravated sexual battery conviction and a

twenty-five (25) year sentence for each aggravated rape and rape of a child

conviction. Defendant is not entitled to a reduction in sentence merely because we

conclude on appeal that the trial court incorrectly applied sentencing and mitigating

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 panel of this Court stated the following: 

[E]ven if we determine that fewer factors should apply than

used by the trial court, this does not mean that the length

of the sentence is automatically reduced. That is, if the

same degree of culpability and negative circumstances

relate to the remaining applicable factors, the original

enhancement may still be appropriate. 

Id. Such is the case here. The defendant was charged with the care and control of

the victim, yet he abused that position of trust. We find the length of the sentences

imposed by the trial court to be appropriate.

B. Consecutive Sentences

Next, the defendant contends that the trial court erroneously imposed

consecutive sentences. In imposing consecutive sentences to the aggravated rape

and rape of a child convictions, the court stated the following:

The defendant qualifies for consecutive sentencing under

Tennessee Code Annotated [section] 40-35-115 which

was in effect when all of these offenses are charged, and

it says this, that the defendant can be sentenced to

consecutive sentences for convictions if the defendant is

convicted of two or more, and here it’s eight statutory

offenses involving sexual abuse of a minor, with

consideration of the aggravating circumstances arising

from the relationship between the defendant and victim or

victims since she was five, time span of defendant’s

undetected sexual activity, the nature and scope of the

sexual acts pervasive and extent of residual, physical and

mental damage to the victim which seems significant. In

addition to that the child rape statue now would bolster

that.

. . .

The right thing for the right reasons seems to me to be

this, that this defendant, for the things that he’s done to

this child over a long period of time, should not be in a

position to be released from custody. That’s harsh, that’s

hard for me, but I think it’s the truth . . . .
-28-

In this case, Defendant was convicted of a total of eight offenses involving

sexual abuse of his stepdaughter. Defendant's conduct occurred over a long period

of time and the nature and scope of the defendant's sexual acts were extensive.

Although we did not find there to be “particularly great” injury to the victim, we

certainly believe that there was enough physical and emotional damage to justify the

application of Tenn. Code Ann. § 40-35-115(b)(5). However, a finding of Tenn.

Code Ann. § 40-35-115(5) does not end our inquiry into the validity of consecutive

sentencing. Instead, Tenn. Code Ann. § 40-35-115 requires further review of

whether consecutive sentences are necessary to protect the public from the

defendant’s possible future criminal conduct and whether the aggregate sentence

is reasonably related to the severity of the defendant’s present offenses. Sentencing

Commission Comments, Tenn. Code Ann. § 40-35-115; Tenn. R. Crim. P. 32(c)(1);

see also State v. Wilkerson, 905 S.W.2d 933 (Tenn. 1995). From our de novo

review of the record, we conclude that the trial court did not err in imposing

consecutive sentences. The trial court found that the confinement was necessary

to protect the public and the victim from future criminal conduct of Defendant.

Furthermore, because the progressive egregious nature of Defendant’s eight

convictions occurred over a significant span of time with his own stepdaughter, the

consecutive sentences are reasonably related to the severity of the crimes.

Defendant has failed to carry his burden to show that the trial court’s sentence was

improper. This issue is without merit. 

Conclusion
-29-

The judgment of Count Four is modified to reflect a conviction of aggravated

rape rather than rape of a child. In all other aspects, the judgments are affirmed.

____________________________________

THOMAS T. W OODALL, Judge

CONCUR:

___________________________________

GARY R. WADE, Presiding Judge

___________________________________

DAVID H. WELLES, Judge