# FILED
October 13, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE JULY SESSION, 1999
STATE OF TENNESSEE, ) C.C.A.NO. 01C01-9809-CR-00372 ) Appellee, ) ) DAVI DSON COUNTY V. ) ) ) HON. CHERYL BLACKBURN KENNETH A.JOHNSON, ) ) Appe llant. ) (RAPE; SIM PLE ASS AULT)

FOR THE APPELLANT : FOR THE APPELLEE : KARL DEA N PAUL G. SUMMERS Distri ct Public

Defender Attorney General& Reporter JEFFREY A. DeVASHER MARVIN E.CLEMENTS, J R. Assistant Public Defender Assistant Attorney General 2nd Floor, Cordel l Hull Bui lding JOAN A . LAWSON 425 Fifth Avenue North Assistant Public Defender Nashvill e, TN 37243 ALLA N CALHOUN VICTO R S. JO HNS ON, III Assistant Public Defender District Attorn ey Ge neral 1202 Stahlman Buildi ng Nashvill e, TN 37201 DIANE LA NCE Assistant Distri ct Attorney General DAN HAMM Assistant Distri ct Attorney General Washington Square - Suite 500 222 Se cond A venue N orth Nashvill e, TN 37201-1649

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

# OPINION

On March 20, 199 8, t he Davidson County Grand J ury indi cted Appellan t Kenn eth Allen Johnson for t wo counts of aggr

avated sexualbattery , two counts of rape, and one count of sexual battery . Followi ng a jury t rial on Mar ch 23–25, 1998, Appellant

was convicted of one coun t of ra pe an d two co unts of sim ple assa ult. After a sentencing hearing on July 1, 1998, the trialco urt impose d a ten year sentence for the rap e convictio n and a six mon th sentenc e for ea ch of th e sim ple
as sault convicti ons. In addi tion, t he trialcourt set Appellant’ s release el igibi lit y percentage at 1 00% for the rape sentence and 75% for eac h of the simp le assa ult sentences. The tr ial court a lso ord ered th e sen tence s for the simp le assa ult convicti ons to run concurrently to each other , but consecut ively to the sentence for the rape c onvictio n. On Augu st 14, 1 998, th e trial co urt dism issed Appe ll a nt’s convicti ons for simple assault because they were barred by the stat ute of limitations. Appellant

challenges hi s sentence for the rape convi ction, r aising t he following issues: 1) whether t he trialcourt imposed an excessive sentence; and 2) whether thetrialcourt err ed when it set

the releas e eligi bilit

y percentage at 100 %. After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.

I. FA CTS

S.R. (it is the policy of th is co urt to refer to the victi ms of child sexual abuse only by their initi als) testified th at her olde r sister Da na Joh nson w as ma rried to Appe llant. S.R. also testifi ed that begi nning when she was elev en years old, she-3-

wo uld spen d ever y other week end w ith App ellant a nd Ms . John son a t their residence.

S.R. testified that o ne nightwhen she was eleven ye ars old, s he stayed in the
same bedroo m as Appel lant and Ms. Johnson . Atsome point that night, Appel lant reached under S.R.’s clothi ng and touched he r bre asts. The touc hing lasted for appro ximate ly five minutes and ended when S.R. “t ried t o jerk awa y.” S.R. also testif ied that wh ile s he was stayingwith Appell ant and Ms. Johnson t wo or three weeks after t his inci dent, Appell ant touched her breasts agai n.

S.R. testified that about three months before Ms. Johnson gave bi rth to a son on August 7, 1995, Appellant and Ms. Johnson moved to a new resi dence on W hite’s Creek Pike. Aft er App ell ant a nd Ms. Johns on move d to t his r esid ence, S.R. spent the night

with them approx imately every other week or e ver y th ird week . On these occasio ns, S.R ., Appellan t, and Ms. Johnson all sl ept in thesame bed and at Appe llant’s suggestion, Appellant s leptbetween S.R. and Ms. Johns on so t hat S. R. would not ki ck Ms. Johnson in her sleep.

S.R. testified that whi le she was stay ing with Appel lant and Ms. Johnson at the W hite’s Creek residence, Appellant pl aced his fi nger in her v agina between ten and fifteen times. S.R. al so tes tif ied that o n one occasion, Appel lant pul led down her sweatpants and r ubbed his penis on the insi de of her leg
.
S.R. testified that s he did not say anything when t hese incidents occurred because she did not want to wake up Ms. Johnson. S.R. a lso tes tified tha t she d id-4-

not report t he incidents immediately because she was a fraid tha t no on e wou ld believe he r and be cause she did n ot want to “tear up [h er] family.”

Detective Harry Meek test ifiedthat he interv iewed Appellant on November 11, 1996. During t he inte rview, Appellant gav e a statement about

the all egations made by S.R.. Appell ant stated that he penetr ated S.R.’s

vagina wit h his fi nger on ap proxim ately ten occasions beginning i n July of 19 95. Appellant also stated tha t he would beco me s exually arous ed wh en he digitally pene trated S .R. an d he w ould subsequently relieve his arousalby having sex with Ms. Johns on while hethought about h is penetra tion of S.R
..

II.LENGTH OF SENTE NCE
Appellant

contends that

the tri al court imp osed a n exces sive sente nce. We disagree.

“When reviewi ng sentencing issues . . . incl uding the grant ing or deni al of probation and the lengt h o f sentence, the appellate co urt shall conduc t a de novo reviewon th e record of such iss ues. Su ch review shall be co nducte d with a presumption that the determ inations mad e by the court fro m which the ap peal is taken are correct .” Tenn. Code Ann. § 40- 35-401(d) (199 7). “How e ver, th e presumption of corre ctnes s whic h acc omp anies the trial c ourt’s action i s conditi oned upon the affi rmative showing in the reco rd that t he trialcourt consi dered the sentencing principl es and all relevant fa cts and circum stances.” State v. Ashby , 823 S.W.2d 166, 169 (Ten n. 199 1). In co nduc ting ou r review , we m ust co nside r all the evidence, the pres entenc e report, th e sente ncing prin ciples, th e enhancing and-5-

mitigati ng factors, arguments of counsel , the defendan t’s statements, thenature and character

of the offense, and the defendant ’s potent ial for rehabilitation. Tenn. Code Ann. §§ 40-35-103(5) , -210(b) (1997 & Supp. 199 8); Ashby , 823 S.W.2d at 169. “The defendanthas the burden of demonstratingthatthe sentence is improper.” Id.

In this case , Appella nt was co nvicted of ra pe, a Cla ss B felon y. Se e Tenn. Code Ann. § 39-13-503( b) (1997). The sentence for a Range I offender convicted of a Class B felony

is between ei ght and twelv e years. Tenn. Code Ann. § 40-35- 112(a)(e) (1997). When both enhancement and m itigating facto rs are ap plicable to
a sentence, t he court is directed t

o begin wit h the minimum sentence, enhance t he
s entence w ithin t he range as appropri ate for t he enhancement factor s, and then reduce the sentence within t he range as appropri ate for t he mitigat ing factors. Tenn. Code A nn. § 40-35-2 10(e) (1997 ).

In determining th at Appellant sh ould serve a sentence of ten years for his rape convicti on, the trialcourt found that the f ollowing enhancement fact ors wer e applicabl e: (1) Appellant ha d a previ ous history of crim inal beha vior in additio n to thatneces sary to establi sh the appropri ate sentenci ng range; (4)the vict im was particu larly vulnerabl e b eca use of ag e; (7) the o ffense w as com mitted to s atisfy Appe llant’s desire for p leasure or excitem ent; and (15) Appell ant abused a positi on of private trust in a way t hat signif icantl y facil itated t he commission of t he offense. See Tenn . Code Ann. § 40-35-114(1), (4), (7), (15) (1997). The trial court al so found thatmit igati ng factor ( 13) was appl ica blebec ause , i n mi tigat ion, Appell ant had partici pated in counseli ng, had shown genuineremors e, and h ad sho wn am enability to treatm ent. See Tenn. C ode Ann . § 40-35-113 (13) (1997).-6- Initially, we not e that Ap pellan t does not co ntend that the trial cou rt shou ld have applied a ny addition al mitigating factors no r does A ppellant c onte nd that the trialcourt shoul d have given t he mitigat ing factors it did apply an y additiona l weight. We conclude in ou r de novo revi ew that the t rial cour t properl y applied the miti gating factors i n this case.
Appellant

does not chall enge the appli cation of enhancement facto r (1) and
we conclude tha t the trial court pro pe rly app lied this factor. In deed , Appe llant’s clini cal therapisttestified during the sentenci ng hearing that Appellant had admitted that he ha d stolen a comp uter from his forme r place of e mploym ent.
Appellant

also does not c hallenge t he applicat ion of enhancement f actor (7) and we conclude that it was cor rectly

applied. Indeed, Appell ant admitted in his statementto polic e that h e bec ame arous ed wh en he digitally p enetra ted S.R .’s vagina and he then thought about the penetrat ion of S.R. while hehad s ex with h is wife.
Appellant

does challenge t he applicat ion of enhancement f actor (4) and we agree that the t rial cour t er red when it appl ied this factor. As this Court has previous ly stated, [A] victi m is particula rly vul nerable wit hin the meaning of this enhancement factor when the vic ti m la ckstheabi li ty to r esi st t he c ommi ssi on of thecri me due to age, a physical condit ion, or a mental conditi on. A victim is al so particu larly vulnerabl e when his or her abili ty to summon s as sistan ce is impaired; or the vi ctim does not have the ca pacity to testif y against t he perpetrator of th e crime. However, a findi ng that one of these condit ions exists does not, as a matter o f l aw, me an tha t this fac tor is au toma tically considered. The appellant must have taken advantage of one or more o f thes e con ditions

during the commission of the c rime. The state had the burden of establ ishing t he limit ations that ren der the victim “p articula rly vulnerab le.” The state also had the burden of establ ishing t hat the condi tion-7- which rendered t he victi m “particul arly vul nerable” was a f actor in t he commission of the offense. State v. Butl er , 90 0 S.W.2d 305, 313 (Tenn. Cri m. App. 1994). I n this case, the State failed to mee t is burd en of d emo nstratin g that S .R. wa s “partic ularly vulnerabl e” because of her ag e. There is no proof in the record that S. R.’s age af fected her ability to resist, he r ability to sum mon h elp, or her a bility to testify against Appella nt. Indeed , S.R. did te stif y again st App ellant a nd sh e ess entially testif ied that the r

eason she did not r

esist or summon help was because of her fear thatshe would damage family relationships. Thus, we conclude tha t the trial court erred when it applied this factor.
Appellant

also chall enges the appli cation of enhancement factor

(15) and we agree that the t rial cour t erred when i t applie d this factor. Tennessee Code Annotated section 40-35 -114 states tha t enhancem ent factors must b e “appro priate forthe offense” and must not be “essentialelements of the offense as cha rged in the indictme nt.” Tenn. Code Ann. § 40-35-114 ( 1997). The Tennessee Suprem e Court has stated that “[

t]hese limitations excl u de enh ancem ent factors based on facts which are us ed to p rove th e offen se or [f]a cts wh ich est ablis h th e el eme nts of the offense charged.” State v. Poo le , 945 S.W.2d 93, 98 (Tenn. 199 7 ) (citation and internal qu otations o mitted).

In this case, the State reliedon the same facts to establish both an element of t he offen se of rap e and th e abus e of a pos ition of private trust. In orde r to establi sh that Appell ant had committed t he offense of rape, the State ha d to prove beyond a reas onab le doubt that Appellant had u nlawful s exual penetr ation of S.R. accomplished by force or coercion
. See Tenn. Code Ann. § 39-13-50 3(a)(1) (1997).-8-

In respo nse to Appe llant’s motion for j udgement of acquit tal at t he end of theState’s proof, the prosecutor ar gued that the element of coer cion had been establ ished by proofthat at t he time of t he offense, Appellant hadcustodialauthorit y over S.R. and he used that custodial authority to commit the offense. Specif icall y, the pr osecutor stated that As for the f

orce or coerci on argument, coerc ion needs to be, one type of coercion, obvious ly, is custodia l authority, an d that is wh at the Sta te ’s argument is in t his case; t hat the defend ant ha d custodialauthorit y over [S.R.], and that he us ed his cu stodial au thority to acc omplish this act. The record indi cates that when the tri al court s entenced Appell ant, it recognized t hat the same facts that

the State had r

elied on to e stablish an element of the of fense
were the same facts that established the applicability of factor (15). In fact, t he trial court expressly

stated th at factor

(15) “is . . . an i ntegral par t or inher

ent element of this of fen se.” The tr ial court also stated that al though it found that f actor (15) was applicabl e, it would not give t he factor any weight because “ it is such an inher ent element of th e offense i n thi s case. ” Be caus e it is clear tha t the facts u sed to establish an elem ent o f the offense were the same fact s that established t he applicab ilityof factor

(15), we concl ude thatthe tri al court erred when it applie d this factor.

Even thoug h we h old tha t the trial c ourt er red in a pply ing two en hancement factors, a findi ng that enhanc em ent factor s were erroneously applied does not equate to a redu ction in the senten ce. State v. Keel , 882 S.W.2d 410, 423 (Tenn. Cri m. App. 1994). In our de novo review, we conclude tha t two enhanc ement fac tors are applicable in t his case and we conclude that these factors are entitled to signif icantweight. Thus, we conclude that a sent ence o f t en yea rs is en tirely appropriate in thi s case. Appell ant is not entitl ed to reli ef on this issue.-9- II I. RELEA SE ELI GIBI LITY PERCENTAGE
Appellant con tends that the trial court erred when it set his relea se eligibility percentage at 1 00%. We disagree.

Unde r Te nnessee Code Annotated sect ion 40-35-501, a defendant who
comm its the offens e of rape on or after July 1, 1 99 5, must serve 100% of the sentence imposed by the t rial cour t, less applicabl e sentencing cr edits. Tenn. Code Ann. § 40-35 -501(i)(1)– (2) (1997 ). Appellan t argues that t he above statute is inapp licable in thi s case because the State fail ed t o prove th at the rape was
comm itted on or a fter July 1, 19 95.

In th is case, Appellant was convicted of rape under count three of t he indict ment, which states that [Appella nt] on a day in July, Au gust or Sep tember, 1995, . . . did intentionally, knowingly, or reckles sly engage i n unlawful sexual penetrati on of [S.R.]and force or co ercion w as use d to acco mplish th e act . . . . According to the State’s el ection of offenses, Count 3 refers to an inci dent desc ribed by [S.R.], where [Appell ant], f or the first time, pl aced his fi nger ins ide [S.R.’ s] vagin a. This occu rred in [Appellant’s] bed on White’ s Creek in Jul y, August, or September of 1995. Appellant

is corre ct that S .R. wa s una ble to pinpoint an exact date for when the incidents of digitalpenetrati on began. Instead, S.R. wasonl y ab le t o nar row

theti me period by testify ing tha t the inc idents of dig ital penetrati on began when she was staying with Ap pellan t and M s. Joh nson at the W hite’s Creek residence before Ms. Johnson gave birt h to a son on August 7, 1995. Appellant is also cor rect that other evidence establi shed that Ap pellan t and M s. Joh nson move d into th e W hite’s Creek-10-

residence as early as May of 19 95. How ever, the s tateme nt that Ap pellant ga ve to police contains th e following colloquy:

[Meek]: Oka y. Well, you w ant to just tell me your side of the story o f what’s . . . wh at’s going on or . . . [Appella nt]: Sure. U h . . . uh, I’m . . . my sister-in-law , [S.R.] [Meek]: Uh-huh. [Appella nt]: . . . approxim ately . . . I’l l say around J uly of [ 1995] uh, it’s when I started touching her in a sexualnature. [Meek]: When was this? [Appella nt]: July of [19 95]. [Meek]: J uly of [1995 ]? [Appella nt]: Uh an d it stoppe d som etime in S eptem ber of [19 95]. Thus, accordi ng to Appel lant’ s own statem ent, the offens e was committed on or af ter Ju ly 1, 1995. Therefore, we concl ude that the trialcourt properly set Appe llant’ s release eligi bilit

y percentage at

100%. Appe llant is not entit led to rel ief on thi s issue.

According ly, the j udgment of t he trial cour

t is AFFIRMED
.

____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ JERRY L. SMITH, Judge

___________________________________ NORMA McG EE OGLE, Judge