# FILED
June 17, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE MARCH 1997 SESS ION

STATE OF TENN ESSEE, ) ) C.C.A. NO. 03C 01-9609-CR-00333 Appellee, ) ) GREENE COUNTY VS. ) ) HON. JAMES E. BECKNER, MICHAEL LYNN EALEY, ) JUDGE ) Appellant. ) (Statutory rape - 2 counts)

FOR THE APPE LLANT: FOR THE APPELLEE:
ROGER A. WOOLSEY JOHN KNOX WALKUP 118 S. Main St. Attorney General & Repor ter Greeneville, TN 37743 MARVIN E. CLEMENTS, JR. Asst. Attorney General 450 Jame s Roberts on Pkwy. Nashville, TN 37243-0493 C. BERKELEY BELL District Attorney General ERIC D. CHRISTIA

NSEN Asst. District Attor

ney General 113-J West Church St. Greeneville, TN 37743

OPINION FILED:____________________

AFFIRMED JOHN H. PEAY, Judge1 It is the poli cy of thi s Court to use t he init ials ra ther than the names of minor victi ms of sex crimes. 2 O P I N I O N

The defendant was charged with two counts of rape of a child and conv icted bya jury of

two counts of

statutory rape. Af ter a hearing, he was sentenced as a Range I standard offender totwo years incarc eration for each offense, to run consecutiv ely for
an effective sentence of four years. In this direct appeal, the defendant chall enges the sufficiency of the evidence and claims tha t hi s sentence is excessiv e. We affirm the judgmen t below.

The first count against the defendant pr ovides that “on or about J uly 7, 1994 in the State and County aforesaid, and before the finding of this indictment, [he] did unlawfullycommit the offense of rape of a child by knowing ly engaging in u nlawful sexual penetration of [G.K.] 1

. . . , a child less than thi rteen (13) years of age.” The other count against the defendant is identical other then referencing a date of “on or about May 20, 1995.” Following

the defendant’s motion, the State filed a bill of particulars which states, in pertin ent part, th at “[r]ather than July 7, 1994, the time frame is the first F riday after July4, 1994” and “[r]ather than M ay 20, 1995, the time frame is between May 25, 1995, and June 7, 1995.”

At trial both G.K. and her mother testified that

G.K.’s dateof birth was July 19, 1982. Thus, she would have been eleven years old at the time of the first offense, and twelve years o ld at the time of the second offense. G.K. testified that s he had been eleven years old when she first met the defendant in June, 19 94, when h e was twentysix. She testified that she had first h ad sex wit h him outside her father’s res idence at PristinePoint. Her last act of sexual intercourse with the d efendant occurred in her room2 The victim in this c ase was , at be st, a re lucta nt witn ess . In res pon se to the p rose cuto r’s que stion s, sh e tes tified th at sh e still ha d “fe elings ” for th e def end ant a nd th at sh e did n ot wa nt to b e in court. 3 at her father’s residence. Although G.K. was uncer tain about the dates

on which each of these actsoccurred, she admitted that she had initia lly told the Distr ict Attorney that the first incident was on the first Friday after Jul y 4, 1994. She also admitted th at she had earlier

told him that the last act took place after her fathe r’s trailer at Pristine Point had burned and that it took place in Haney Trailer Park. 2 Other proof established that the fire occurred on May 25, 1995, and tha t the victim’s fat her began rentin g a residence at Haney Trailer Park on June 1, 1995. These were the only tw o acts of intercourse about which the victim te

stified.

Carol Cope, the detective sergeant with the Greene County Sheriff’s Departmentwho investigated the case, testified that she had interviewed G.K.on June 7, 1995, when G.K. was tw elve years old. Ac

cording to Cope, G.K. had told her that the acts occurred on July 7, 1994 and May 20, 1995. Ms. Cope also interv iewed t he defendant on June 8, 1995, and took a s tatement from h i m. This statement was introduced int o evidence and in cluded the fo llowing:

I met [G.K.] about a year ago through her dad, Roland [K]. That ’s t he only way w

e see each other is through Roland. [G.K.] and I have sexual intercourse and have had for about a year. W e use bir th control. Roland woul d get [G.K.] and come and get me, or theother way around an d we would go to Roland’s. Roland knows [G.K.] and I were sexually ac tive and has from the st art. Roland wanted me to meet [G.K.] about a year ago and I did, and we have been together since. I have spen t the nig ht with [G.K.] at Roland’ s and Roland would be there. [G.K.] has been at my house. Roland would bring her by when he picked me up.

The defendant testified that he h ad me t G. K. in about June, 1994, and admitted that they had had a sexual relationship with the first sexual intercourse occurring “three or four, maybe five months” after they had first met. He further testified that

they4

had last had sex in 1995 sometime prior to May 25 of that year.

In his challenge to the sufficie ncy of the evidence, the defendant complains that the State failed to prove beyon d a reasonable doubt that the two offenses occurred
on the date s specif ied in the bill of pa rticulars . We a gree wi th the d efendant that the victim was less than definite about the specific dates on which she had sex with him. However, this does not inure to the defendant’ s benefit. The State is not requi red to strictly show that the offenses occurred on or during the dates all eged in the presentment (or a subsequent bill of particulars) unless the dates are essential to proving the offense
or imposing a defense. State v. Howse , 634 S.W.2d 652, 657 (Tenn. Crim.App. 1982). See also State v. Byrd , 820 S.W.2d 739, 740 (Tenn. 1991) (“[T]he exact date, or even the year , of an offense need not be stated in an indictment or presentment unl ess th e date or time <

is a material ingredi ent in the offense.’ . . . [T]he state need a llege only that the offense was co mmitted prior t o the finding of the in dictment or presentment.”) ( quoting T.C.A. § 40-13-207). In general, a variance between an i ndictmentand the proof at trial is not fatal if (1) the defendant is s ufficiently informed of the

chargeslevied ag ainst him so that he can adequately prepare for trial and, (2) the defendant is protected agains t a subsequent

prosecution for the same offense based on double jeopardy grounds. The variance is not to be regarded as material when the indic tment and pr oof substantially correspond. Amaterial variance occurs only if the prosecutor has attempted to rely at the tr ial upon theoriesand evidence that were not fairly embraced in the allegations made in the indictment. State v. Mayes , 854 S.W.2d 638, 640 (Tenn. 1993) (citations omi tted). Any “vari ance” bet ween the presentment and/or the bill of par ticulars and the proof in this case was neither material nor fatal.

Moreover, as our Supre me Court recently stated, The purpose of the bill of particul ars is toprovide information5 about the details of the charge when necessary for a defendant to prepare his or her defense, to avoid prejudi cial surprise at trial, and to enable the defendant to preserve a plea of double jeopardy. Information that may be required in the bill of particulars includes, but is not limited to, details as to the nature, time, date, or loc ation of the offense. Althoug h a co urt should make every effort to see that the prosecution supplies critical i nformation in th e bill of particulars, we have ob serv ed that in cases involving child sexu al abuse, the prosecution may be unable to supp l y specific dates on wh ich alleged offenses occurred. In such cases, however, where t he victim is too young to recall specific dates, <

the child may

be able to defi ne the time of the offense by reference to such memor able o ccasions in a child’s life as birthdays, seasonal cel ebrations and holidays, the beginning or end of the school year, or visita

tions by relatives.’ If the State is truly unab le to provide even an approximatetime or date o f the offens e by mean s of a des c riptive reference, < a conviction may nonethel ess be affirmed if in the course of trial it d o es not appear that the defendant’s defense has been hampered by t he lack of specificity.’ State v. Speck , ___ S.W.2d ___, ___ (Tenn. 1997) (citations omitte d).
In this case, the defendant has failed utt erly to demonstrate how he was prejudiced in his defense by the State’s inability to pin the victim down as to the exact dates on which she had her first and last sexual relations w ith him. He did not present
an alibi defense for the dates set forth in either the presentment or the bill of particulars and has not offered in this appeal any defenses which he might have been able to use at trial were itnot for the dates set forth in the bi ll of particulars. See State v. Speck , __ S.W.2d at __ (Tenn. 1997). According ly, the defendant having fail ed to show ho w he
was prejudiced by the bill of particulars and/or any variance between it, the presentment and/or the proof, we find this i ssue to be without merit.

In conjunction with his allegations about the sufficiency of the evidence , the defendant also challenges his c onvictions

on the basis of the trialcourt’s failure to require the State to ele ct which offenses for which it was seeking conv

ictions. The defendant is correct that, where an accused is charged w ith two offenses, but proof is adduced of6

more than two offenses, the State must elec t which offenses it wants to submit to thejury for consideration in order t o preserve the defendant’s ri ght to a unanimous jury verdict. See State v. Shelton , 851 S.W.2d 134, 137 (Tenn. 1993). Before the State is required to elect, howev

er, it m ust addu ce proof of more offenses than those with whi ch the accused is charged.

In th is case, the victim tes tified about two particular incidents of sexual interc o urse with the defendant: the first and the last times. The victi m testified as to where these occurrences took place and at what stage in the relationship they took pl ace. She did not testify as to the specific dates, but admitted that she h ad earli er told Ms. Cope and the district attorney the dates on which she believed they had oc curred. The defendant, too, admitted that he had had sex with the victim a first time and a last time. The only significant differenc e with respect to when each of these instances occurred w as the m onth during which they first had sex. The State adduced proof that the fir st tim e was in the earlysummer of 1994. The defendant testified that they did not fir st have sex until three to five months after they had first met in “about” June 1994.

While we agree with th e defendant that there was some proofin the record that these two instances were not the only time he had sex with the victim, w

e disagree that this proof requi red the State to make an election. In su pport of his a rgume nt, th e defendant refers to the sente nce containe d in his statement, “[G.K.] and I have sexual intercourse and have had for about a year.” While this information may have impli ed that the relationship included more than two acts of

intercourse, it certainly did not rise to a level of proof which presented the jur y with more thantwo discrete offenses from which to choose. In State v. Clabo , 905 S.W.2d 197 (T e nn. Crim. App. 1995), this Court reviewed a convi ction for sexual battery . The defendant argued that the trial court had erred in failing to requir e the State to make an electi on among of fe ns es pr ov ed . We3 Under a previous version of Tennessee’s aggravated rape statut e, aggravated rape incl uded the unlawful

sexual penetr

ation of a victi m by the defendant where the vi ctim was less tha n thirt een (13) years of a ge. T.C .A. § 39-1 3-502(a )(4) (199 1 Rep l). This pro vision was replaced in 1992 b y the statute proscribi ng “rape of a chi ld.” T. C.A. § 39-13-522. 7 stated: B testified in detail about one pre cise sexual incident in his

bed. The State and defense counsel q uestioned B about that one precise incident. No deta ils were provided about any other incident. The minor innu endos about ano t her incidentwere harmless. In consi dering the entire record in this cause, we are satisfied that the judge did not err in failing to require that the State elect upon w hic h offense it was seeking a verdict in that only one specific incide nt w as alleged to have occurr

ed. 905 S.W.2d at 204-05. W e are sim ilarly sa tisfied here that only tw o specific acts of intercourse were allegedand proven and, therefore, the tr ial court did not err in faili ng to require the State to make an el ection. This issue is w ithout merit.
Although not raised by the defendant in this appeal, this case prese nts an opportunity

to voice our concern about references to statutory rape as a “lesser included offense” of rape of a child. The record contains a pleadin g titled “Special Jur y Instruction RequestsUnderlying Statutor y Rape.” In this pleadi ng, the defendant requested the court to charge the jury with the “lesser included offense of statutory rape.” Although the record does not contain the jury instructi ons given by the cour t, we must assume that the court honored the defendant’s request bec ause of the jury’s verdi ct. The record does not reveal what, if any , reaction the State had to the st atutory rape instructi on.

We realize that this Co urt has, on occasion, referr ed to statutory rape as
a “lesser included offense” of agg ravated rape charged on the basis that the vic tim was less than thirteen years old (now rape of a child). 3 See, e.g. , State v. Jones , 889 S.W.2d 225 (Tenn. Crim

. App. 1994). Under the definition of “l esser included offense” set forth byour Supreme Court in State v. Trusty , 919 S.W.2d 305 (Tenn. 1996), thi s is an inaccurate characterization of statutory rape. Trusty teaches usthat statutory rape is a8

lesser included offense of aggravated r ape/rape of a chi ld “only if the elements of the included offense are a sub set of the elements of the charged offense and onl y if the greater offense cannot be committed without also committing the lesse r offense. . . . In other words, the lesser

offense may not require proof of any element not included in the greater offense as charged in the indictment.” Trusty , 919 S.W.2d at 310-11. Rape of
a child is “the

unlawful sexual penetration of a victim by the defendant . . . if such victim is less than thirteen (13) years of age.” T.C. A. § 39-13-522(a). Statutory rape, on the other hand, is “sexual penetr ation of a victim by the de fendant . . . when the victim is at least thirteen (13) but less than eighteen (18) years of age and the defendant is at least four(4) years older

than the victim.” T.C.A.§ 39-13-506(a). Statutory rape includes an element that is not includedin the elements of rape of a child: there must be at least a four(4) year age difference bet ween the victim and the a ccused. Moreover, the age of
a statutory rape victim must be at least thirteen (13) while the age of a child rape victim must be no more than twelve ( 12). Far from the one offense being a lesser included of the other, th e statut ory eleme nts of th ese two crimes are mutually ex clusive: depending on the age of

the victim an accused may be guilty of one or the othe r of these offenses at a given point in time, but not both. See also State v. Woodcock , 922 S.W.2d 904, 913 (Tenn. Crim. App. 1995) (statutory rape was not a lesser included offen se of rape).

Nor are we prepared to hold that statutory rape is a lesser grade offense of aggravated rape/rape of a child. Trus ty

provides that “the gr

ades or classes of any
o ffense are established by statute” and that “[o]ne need only look to the statute s t o determine whether a given offense is a lesser grade or class of the crime charged.” 919 S.W.2d at 310 (emphasis in origi nal). Trusty offers as examples of this test the crimes of homicide, kidnapping and assault. However, whi le we agree that these three types of crimin al offenses were neatly and obv iously divided up i nto grades or classes by ou r4 The homicide crimes are all contained in Part 2 of Chapter 13 of Title 39 of our Code; no ot her offenses are included in that Part. Simi larly, all of the kidnapping off enses are included in Part 3 of C hapter 13, and all of the assault crimes are in Part 1; no other types of offenses are included in these Parts.

5 W e inclu de w ithin th e term “sex ual as sau lt crim es” th e crim es of aggr avate d rap e, rap e, aggravated sexual

battery , sexual bat

tery, and rape of a chi ld. T.C.A. §§ 39-13-502, 5 03, 504, 505 & 522. 9 Legislatu re, 4 the sex crimes do not lend thems elves to such simple cat egorization. Although both aggravated rape/r ape of a child and statutory r ape are included in Part 5 of Chapter 13 of Title 39 of ourCode, Part 5 also includes provisions dealing

with homosexu al acts, p ublic ind ecency, and prostitution. T.C.A. §§ 39- 13-510; 39-13-511; and 39-13-512 - 516. Certai nl y, prostitution is not a lesser grade or class of rape, in spite of its inclusion in the same Part. Thus, that statutory rape is included in the same Part as the sexual assault crimes5 does not ipso facto make it a lesser grade or offense thereof.Moreover, the very nature of the statutory rape offense is fundamentally different from the sexual

assault cr

imes. For i nstance, the sexual ass ault crimes

all requi re some form of “unlawful” contact between the accused and the victim; statutory rape does not. The age of the defendant is irrelevant with respect to all of the sexual assault crimes; it i s a crucial element of statutory rape. All of the sexual assault cri mes contemplate the lackof effective consent by the victim; statutory ra pe c ontemplates circumstances in whi ch the sexual relations are admittedly consensual. In short, neither Trusty nor th e statutory scheme nor a consideration of the nature of statutory rape conv inces us thatit is a lesser grade or class of the rape of a child offense charged in this case.

In order for us to find that the defendant’s convictions for

statutory rape in this case are valid, however, it is unnecessary for us to determine that statutory rape is
a lesser grade or class of the offense charged. Rather, we hold that the convictions are valid under either of two other th eories. First, this Court has previously hel d that, in rape
cases involving v

ictims under the age of thirteen (13) where the defendant asserts as a defense that he thought the child was at least thirteen (13), a jury instruction on statutory6 Effectiv e July 1, 1995, thi s statute was amended to provide t hat mistake of fact is not a def

ense to prosecuti on for rape of a child or aggravated r

ape where the vi ctim is l ess than thi rteen year s old. T.C.A. § 39-11-502(a). 1 0 rape is appropriate. See, e.g. , State v. Parker , 887 S.W.2d 825, 828 (Tenn. Crim. App. 1994) (where the

defendant was charged wi th aggravated rape and a ggravated sexual ba tteryon the basis that the vic tim was twelve years old, and the defendant ad duce d proof that he had thought the victim was older, the trial court was correct in ins tructing the juryon mistake of fact and directing it to consider the off ense of statutory rape if it found the defendant entitled to that defense). See also State v. Jones , 889 S.W.2d 225, 230 (Tenn. Crim. App. 1994) (where the defendant w as convicted of

aggravated rape on the basis that the victim was twelve years old and the defendant adduced proof that he had thoughtthe victim was at least thirteen,the defendant was entitled to a new trial because the trial court did not instruct the jury on the defense of mistake of fact and on the “lesser included offense” of statutory rape). In the instantcase, the defendant testified that the victim had told him she was “sixteen, going on se v enteen” and he requested a speci al juryinstruction on mistake of fact. Where a defendant’s ignorance or mistake of fac t constitutesa defense to the offense charged, he may still be convicted of the offense for which he would be guilty if the facts were as the defendant bel ieved. T.C.A. § 39-11- 502(b). 6 Thus, if the defendant in this case had believed G.K. to be sixteen at

the time they first had intercourse, a j ury instruction -- and, ipso facto , a conviction -- on statutory rape was appropriate.

Second, in this case the defendant requested a jury charge on the off ense of statutory rape. The trial court gave the defendant what he w anted and the defendant
w a s then convicted of that offense. W e find that the defendant’s actions in this case amounted to a c onsens ual amendment to his presentment such tha t he was properly charged with statutory r ape in ad dition t o rape of a child. Under our r ules of criminal procedure, “[a]n indictm ent, presentment or information may be amended in all cases7 “A person commits an offense who r ecklessly

engages in conduct

which places or

may place another person in imm inent danger of death or serious bodily injury.” T.C.A. § 39-13-103(a). 1 1 with the consent of the defendant.” Tenn.R.Crim.P. 7(b).

In a similar case, this C

ourt considered a defendant who ha d been charged with attempted first-degree murder

. State v. Robert W. Bentley , C.C.A. No. 02C01-9601- CR-00038, Shelby County (Tenn. C rim. App. filed Oct. 17, 1996, at Jackson) . No amendments to the indictment were made prior to trial but, after

the close of

proof, the defendant requested a jury instruction on the offense of reckles s endangerment. 7 The court granted the defendant’s reques t. The defendant was subsequently acquitted of the at tempted first-degree murder char ge (and its lesser i ncluded offenses of attem pte d second-degreemurder and attempted voluntary manslaughter) but convicted of reckless endangerment. On appeal, the defendant contende d that his conviction could not stand bec ause reckless endangerment is not a lesser included offense of attempted fir st degree murder. While a cknowle dging the technical correctness of the defendant’s position, we held:

The jury instruction on reckless endangerment, g iven with the consentof both parties, constituted, i n effect, an amendment to the de fen dant’s indictments. While no one at trial specifically addressed the necessity of amen ding the indictmentsto include the offense of reckless endangerment, this oversight was merely the result of the trial court, defense counsel and the State all mistakenly concluding that reckless endangerment

is a lesser included offense ofattempted firstdegree murder. However, indictments < may be amended in all cases with the consent of the defendant.’ Tenn.R.Crim.P. 7(b). The defendant here , t hrough his counsel, not only consente d to being tried on the charge of reckless endang erment, but actively sought this result. For t h e purposes of this appeal, we find the defendan t’s ac tions to have constitute d con sent to an effective amendment to his indictments. He will not now be heard to complain about convictions

on an offense which, without his own coun sel ’s intervention, would not have been char ged to the jury. See T.R.A.P. 36(a) ( <

Nothing in th is rul e shall be construed as requiringreliefbe granted to a party r esponsible for

an error or who failed to take whatever action was reasonably available to prevent or nullify the harmful effect ofan error.’)1 2

Bentley , id. We hold that the same result sho uld obtain in the case sub judice and for the same reasons. The defendant’s two c onvictions for statutory

rape are affirmed.

The defendant also complainsthat his sentences are excessive and should not be run consecutively . When a defendant complains of his or h er senten ce, we must conduct a de novo review with a presumption of correc tness. T.C. A. § 40-35-401(d). The burden of showingthat the sentence is improper is upon the appealing party. T.C.A. § 40-35-401 (d) Sentencing Commission Comments. This presumptio n, however, “is conditioned upon the affirmative showing in the record that the trial court consider ed the sentencing principles and all relevant fact s and circ umstances.” State v. Ashby , 823 S.W.2d 166, 169 (T enn. 1991).

A portion of the Sentencing Reform A ct of 1989, codified at T.C.A. § 40-35-210, established a number of specific procedures to be foll owed in sentencing. This section m andates the co urt’s considerat ion of the fo llowing:

(1) The evidence, if any, recei ved at the trial and the sentencing heari n g; (2) [t]he presentence r eport; (3) [t]he principles

of se ntencing and arguments as to sentencing alternatives; (4) [t]henature and characteristics of the criminal conduct involved; (5) [e] vidence and information offered by the parties on the enhancement and miti gating factors in §§ 40-35-113 and 40-35-114; and ( 6) [a ]ny statement the defendant wishes to make in his own behalf ab out sentencin g. T.C.A. § 40-35-210.

In addition, this section provides that the minimum se nten ce within the range is the presu mptive sentence. If there are enhancing and mitigating factors, the court must start at the minimum sentence in the range and enhance the sentence asappropriate for the enhancementfactors and then reduce the sentence withi n the range as appropriate forthe mitigatingfactors. If there are no mitigating factors, the court may set the sentence above the minimum in that range but still within the range. The weight to be given each1 3

factor is left to the discretion of the tri al judge. State v. Shelton , 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992).

The Act further provides that “[w]henever the court imposes a sentence, it shall place on the record either orally or in writing, what enhancement or mitigating factors it found, if any, as well as findings of fact as requir ed by § 40-35-209.” T.C.A. § 40-35-210(f) (emphasis added). Because of th e importance of enhancing and mitigating factors under the sent encing gu idelines , even the absence of these factors mus t be recorded if none are found. T.C.A. § 40-35-210 com ment. These findings by the tr ial judge must be recorded in order to allow an adequate review on appeal.

The trial court in this case follow ed the proper procedure in sentencing the defendant. Accordingly, the pr esumption of correctness attaches . The court found and applied three enhancementfactors: a previous his tory of criminal conv

ictions in addition to those necessary to establ ish the appropriate range; the offenses involved two or more criminal actors and the defendantwas a leader in their commission; and a previous history of unwil lingness tocomply with the condi tions of a sentence involv ing release in the community

. T.C.A. § 40-35-114(1), (2) & (8). The first and last of thes e enhancem en t factors are amply supported by the record. Prior to commit ting the instant offenses, the def end ant had been convicted of three DU Is, reckless driv ing, failure to report an accident, and public intoxication. He had also violated his probation. W ith respect to the second of these factors -- that the defendan t was a leader in th e commission of the statutory rapes -- the trial co urt found that the victim’s fathe r was an aider and abettor. While we agree

that the record supports the trial court’s concl usion that the victim’s father participated in bringing her and the defendant together while k nowing that t hey were engaging in sex, we disag ree that the recor d supports the court’s conclusion that the defenda nt was the leader . Rather, the proof indicates that the father was actuall y th e8 Defen se cou nsel adm itted at the se ntencing hearing th at there w ere “no m itigating facto rs.” 1 4 leader. He introduced the victim and the defendant and then transported one or the other to their meetings. Accordingly, we hold that the trial court erred in applying this enhancement factor. Nevertheless, the court did not abuse its di scretion in increasing the minimum sentence of one year to the maximum sentence of two years on each conviction. A maximum sentence is appropriate where there are two enhancement f actors and n o mitigating factors. 8 This issue is witho ut merit.

In imposing consecutive sente nce s on the defendant, the trial court relied
on that portion of

the 1989 Sentencing Act w hich provides that

a defendant’s sentences maybe run consecutively when the trial court finds by a preponderance of the evidence that he is convicted of two (2) o r more sta tutory o ff enses involving

sexual abuse ofa minor with consideration of the aggravating circumstances

arising from the relati onship between the defendant and victim or vic tims, the time span of defendant’s undetected sexual activity, the nature and scope ofthe sexual acts and the exten t of the residual, physical and mental damage to the victim or victims. T.C.A. § 40-35-115(b)(5). In finding that this prov ision applied, the court st ated: the facts of this case are that there was a fairl y long-lasting sexual relationship involv ing sexual penetration, the co mplete sexual act between this 27-year o ld defendant man and this 12-year old girl child and that it went un det ected for a significant . . . well undetected by auth oritiesfor a significant period of time, that it was only stopped when it was detected and that at 12 years old . . . of course, a female is a minor under 18 years old, but at 12 years it’s so sig nificant that I believe it does, in fact, activate 40-35-115(b)( 5) to the extent that the sentences should be imposed consecutively[.] The trial court di d not abuse its discretion in ordering consecutive sentences under this provision. Moreover, the trial judge stated specifically that h e wa nted the sentence to deter the defendant from having sex with “young children,” see Gray v. State , 538 S.W.2d 391, 393 (Tenn. 1976), and we find that the four y ear aggregate

sentence is reasonably1 5

related to the severity

of this defendant’s offenses against this victim. See State v. Taylor , 739 S.W.2d 227, 230 (Tenn. 1987). This issue is w ithout merit.

The defendant’s convictions and s entences are affirmed.

_______________________________ JOHN H. PEAY, Judge

CONCUR:

______________________________ PAUL G. SUMMERS, Ju dge

______________________________ CORNELIA A. CLARK , Special Judge