### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs N

ovember 22, 2000 STATE OF TENNESSEE v. VANC E SHELTON Direct Appeal from the Criminal Court for Greene County No. 96-CR-270 James E. Beckner, Judge

No. E2000-01632-CCA-R3-CD December 20, 2000 Defendant

was convicte

d of rape of a

child and aggravated sexual battery. The def endant was sentenced to twenty-f

ive years f

or rape of a chil

d and twelve years for

aggravated

sexual battery

, to run consecutively

to each other an

d consecutively

to a prior four-y

ear sentence.

In this appeal, the defendant makes the followin

g allegations: (1) the evidence was insufficient

to support his convictions; (2) the trial cour t erred in failing

to grant a mist

rial due to a v ariance between the indictment and the state's proof at trial; (3) the trial court erred in ruling his prior convictions for arson would be admissible if he testified; and (4) his sentences are excessive. Upon our review of the record, we remand for modification of the judgment for aggravated sexual battery to reflect the proper date of th

e offense, but a

ffirm the judgme

nts in all other res

pects. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed as Modified J OE G. R ILEY , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., and T HOMAS T. W OODALL , J., joined. Roger A. Woolsey, Greenville, Tennessee (at trial); Greg W. Eichelman, District Public Defender; Michael A. Walcher, Assistant District Public Defender, Morristown, Tennessee (on appeal), for the appellant, Vance Shelton. Paul G. Summers, Att

orney Gene ral and Reporter ; Elizabeth B. Marn

ey, Assistan

t Attorney G

eneral; C. Berkeley

Bell, District A

tto rney General; and Eric D. Christiansen, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION Defendant

was indicted on three counts of rape of a ch ild. He was convicted by a Greene County jury of one count of rape of a child and one count of the lesser offense of aggravated sexual battery, and acquitted of the other count of rape of a child. He was sentenced to twenty-five y ears and twe lve years , res pect ive ly, to run consecutively to each other and consecutively to a prior four--2-

year sentence. In this appeal, the defendant challenges: (1) the sufficiency of the evidence; (2) the trial court’s failure to grant a mistrial due to a variance in the proof and the indictment; (3) the trial court’s ruling regarding the admission of his prior convictions for arson if he testified; and (4) the length of his sentences. Upon our review of the record, we remand for modification of the judgment for aggravated sexual battery to reflect the pr oper date of the of

fense, but affirm the judg ments in all other respects.

FACTS The state’s proof revealed that friends of the eleven-year-old victim reported to the victim’s teachers and school offici als that the victim mi

ght be pregna

nt. The victim

was then interviewed by school officials and a representative from the Department of

Human Services. She told authorities about her sexual activiti

es with the defen

dant. Defendan

t was the victim’s c

ousin and resided in the samehouse from time to time. Dur ing the investigation, the defendant gave a tape recorded statement to authorities in which he denied any sexual contact with the victim. The victim testified that the defendant had digitally penetrated her vag inain the summer of 1995 in the hallway of her mother’s home. Additionally, she te stified that between Thanksgiving and Christmas of 1995, she performed oral sex on the defendant in the bathroom at the apartment of Randall McGee. Finally, she testified that on January 9, 1996, she again performed oral sex on the defendant in his be

droom and that onc

e the act was com

plete, the defendant a

sked her if she wantedto have intercourse with him. When she told him she did notwant to have intercourse, the victim testified that the defen d ant grabbed her by the shorts, pushed her onto the bed, moved her shorts to the side, and then vaginally penetrated her with his penis. Dr. Peter R. Reardon testified that his findings in the gynecological exam of the victim were consistent with vaginal/penile penetration. The victim’s mother

testified that she

repeatedly

warned the defe

ndant that he should

not be alone with the victim. The victim’s eig ht-year- oldstep-sister testified that she saw the victim and the defendant alone in the defendant’s bedroom on January 9, 1996. Thereafter, the defendant presented testimony from Randall McGee concerning the alleged incident between Thanksgiving

and Christmas in 1995 in McGee’s apartment. McGee testified that the victim and the defendant were never alone on the night in question. As to the alleged incident on January 9, 1996, defendant’s father testified that he never witnessed the victim and the defendant alone in the defendant’s bedroom. The defendant did not testify at trial. The ju ry found the defendant guilty of the vaginal/penile rape of the child occurring on January 9, 1996, acquitted the defendant of all charges relating to the alleged incident at

the McGee apartment,and foundthe defendant guilty of the lesser charge of aggravated sexual battery relating to the incident in the summer of 1995. This appeal followed.-3- I. SUFFICIENCY OF THE EVIDENCE The defendant claims the evidence is insufficient to support his convictions for rape of a ch ild and aggravated sexual battery. Specifically, he alleges Dr. Reardon’s testimony was inconclusive and the victim’s trial testimony contradicted he

r earlier state

ments to the author

ities. Add iti ona lly, he argues his pre-trial statement denying any sexual contact with

the victim should have been given the same weight as the victim’s testimony.
In Tennessee, great weight is given to the result reached by the jury in a

criminal trial. A jury verdict accredits the state's witnesses and resolves all conflicts in favor of the state. Statev. Bigbee , 885 S.W.2d 797, 803 (Tenn. 1994). On appeal, the state is entitled to the strongest legitimate view of the evidence and all reasonable inferences which may be drawn therefrom. Id. ; State v. Ca bbage , 571 S.W.2d 832, 835 (Tenn. 1978). Moreover , a guilty ve

rdict removes the presumption of innocence which the appellant enjoyed at trial

and raises a presumption of guilt on appeal. State v. Grace , 49 3 S.W.2d 474, 476 (Tenn. 1973). The appellant ha

s the burden of ove

rcoming this presumption of guilt. Id. Where sufficiency of the

evidence is challenged, the relevant question for an appellate court is whether, after

viewing the evid

ence in the light

most favorable

to the prosecution, any rational trier of fact could have found the essential elements of the crime or crimes b

eyond a re

asonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virgini a , 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Abrams , 935 S.W.2d 399, 401 (Tenn. 1996). The weight and credibility of the witnesses' testimony ar

e matters entrusted exclusively to the jury as the triers of fact. State v. Sheffield , 676 S.W.2d 542, 547 (T enn. 1984); State v. Brewer , 932 S.W.2d 1, 19 (Tenn. Crim. App. 1996). Rape of a child is defined as the “unlawful sexual penetration” of a victim by a defenda nt where the victim is less than thirteen years of age. See Tenn. Code Ann. § 39-13-522(a). The vict im testified that on January 9, 1996, when she was eleven y ears old, the defendant forcibly had sexual intercourse

with her. In addition, Dr. Reardon testified that his findings in the examination of the victim’s vaginal area were consistent with penile penetration. The jury was free to disrega rd the defendant ’s pre-tr

ial denial of misconduct. Thus, the jury could have reasonably concluded the defendant sexually penetrated the victim, a child under the age of thirte en, on January 9, 1996. Aggravated

sexual battery

is defined as “unl

awful sexual contac t” with a victim by the defendant where the victim is less than thirteen years of age. See Tenn. Code Ann. § 3 9-13- 504(a)(4). “Sexual contact” includes the intentional touching of the victim’s intimate pa

rts, or the intentional touching of

the clothing covering the immediate area of the victim’s intimate parts, if the intentional touching can be reasonably co ns trued as being for the purpose of sexual arousal or gratification. See Tenn. Code Ann. § 39-13-501(6). The victim testified that in the summer of 1995, when she was eleven years old, the defendant placed his hand down the bikini bottoms of her swimsuit and inserted his finger into her vagina. Thus, the jury could have re asonably concluded the defendant intentionally touched the victim’s intimat

e parts. Furthermore, we conclude the jury-4-

could have reasonably found the defendant committed the act for the purpose of sexual arousal or gratification. The evidence is s

ufficient to suppo

rt both convictions . This issue is without merit.

II. MISTRIAL The defendant conte

nds the trial cour

t erroneously

admitted evidenc

e of two acts

o f penetration on January 9, 1996; the state was required to elect in count one which act of penetration upon which it was relying; a nd the trial court e

rred in failing

to grant a mistrial due to a va

riance in the state’s proof and the indictment. Count one of the indictment alleges “unlawful penetration” of the victim by the defendant on “January 9, 1996,” and is not specific as to the type of penetration. Count two alleges “unlawful penetration” of the victim by the defendant “within three months of January 9, 1996,” in the form of “fellatio.” The

defendant filed

a motion for a bill of

particulars prio

r to tr ial, and the state provided information about the dates and locations of the alleged cond uct fo r each count of the indictment. The state did not specify the types of sexual acts rela ting to January 9, 1996. With regard to count one, the victim testified at trial that on January 9, 1996, she performed oral sex on the defenda

nt and was then vag

inally penetrated by

the defendant wi

th his penis. With regard to count two, the vic

tim test ifi ed that between Thanksgiving and Christmas of 1995, she performed oral sex on the victim at the apartment of Randall McGee. At the close of the state’s proof, the defendant requested a mistrial arguing that the jury im properly

heard testim ony a bout tw o diffe rent in stance s of pen etrati on occu rring on Ja nua ry 9 , 1996. Thus, the defendant alleged the jury would be confused a s to which instance they were to use as the basis for th

e allegation in

count one of

the indictment. Additionally, the defendant claimed that the victim’s testimo

ny could lea

d to jury conf

usion in differentiating

between counts

one and two. The trial court conc luded that any juror confusion could be solved by a n election and instruction limiting count one of the indictment to “vaginal penetration.” The jury convicted the defendant of “vaginal penetration” in count one and acquitted the defendant in count two. We conclude that evidence as to both fellatio and vaginal penetration on January 9, 1996, was admissible

under count one of

the indictment. Evi

dence that rela

tes to sex crimes tha

t allegedly occurred durin

g the time period

charged in

the indictment is re

levant to the issues being tried and, therefore, is admissible. State v. John Rickman , 876 S.W.2d 824, 828 (Tenn. 1994); see also Tenn. R. Evid. 402. However, the state must elect at the close of its proof the particular incident for which a conviction is being sought. Id. Although January 9, 1996, is one day and not a time period including more than one day, the state is not precluded from introducing evidence of different sexual acts on that date, provided the state makes a proper election.-5-

Here, the victim testified to one instanc e of oral penetration and one instance of vaginal penetration by the defenda nt on January 9, 1996. However, the trial court instructed the jury that they were only t

o consider the va

ginal penetrat

ion with regard

to count one, and the jury specifically returned a verdict of “guilty of rape of a child by vaginal penetration on January 9, 1996.” As to the alleged fellatio b etween Thank sgiving a nd Christmas in 1995 in count two, the jury acquitted the defendant. Thus, evidence of both acts of penetration on January 9, 1996, was admissible; the trial court properly required the election; the trial court gave a proper jury instruction

as to the election; and the jury specifically

found the defendant guilty of “vaginal penetration on January 9, 1996.” There was no error, no juror confusion, no variance, and no reason for a mistrial. This issue is without merit.

III. PRIOR CONVICTIONS The defendant asserts that the trial court improperly ruled that his three 1993 convictions for arson could be intro duced by the state if the defe

ndant testified. T

he trial court co

ncluded their probative value outweighed any unfair prejudicial ef fect. The defendant did not testify at trial. The state may use a pr

ior adult conviction to impeach the testimony of an accused in a criminal prosecution if: (a) the conviction was for a crimethat is punishable by death or imprisonmentin excess of one year or

a misdemeanor involving dishonesty or false statement; (b) less than ten years has elapsed between the date the ac cused was released from confinement and the commencement

of the prosecution; (c) the state gives reasonable written n otice of the particular conviction or convictions it intends to use to impeach th e accused prior

to trial; and (d) the trial court finds that the probative value of the felony or misdemeanor on

the issue of cred

ibility outwe

ighs its unfair prejudicial eff

ect on the substant

ive issues. Tenn. R. Evid. 609; State v. Mixon , 983 S.W.2d 661, 674 (Tenn. 1999).
In this case, the first three requirements have been satisfied. Thus, the only re maining issue is whether the trial court erroneously concluded that the probative value of the c onv ictions on the question of

the appellant’s credibility outweighed the prejudicial effec tupon the substantive issues presented by the evidence.
In determining whether

the probative value of a conviction on the issue of credibili

ty outweighs its unfair prejudicial effect on the substantive issues, a trial court should (a) assess the similarity between the crime on trial and the crime underly ing the impeaching con

viction, and (b) a

nalyze the r

elevance the imp

eaching convic

tion has to the issue of credibility. Statev. Farmer , 841 S.W.2d 837, 839 (Tenn. Crim. App. 1992) (quoting N. Cohen e t al ., Tennessee Law on Evidence § 609.9 at p. 288 (2 nd ed. 1990)).-6-

The crimes of arson and child rape are obviously dissimilar; thus, the issue is whether the crime of arson is probative of credibility. This court has concluded that convictions for “setting fire withintent to burn” and

“arson” are no

t relevant to

a defendant’s credibility, absent evidence of the actual circumstances supporting the convictions. State v. Marvin Bedford , C.C.A. No. 02C01-9806- CR-00192, 1999 WL 234681, at *3 (Tenn. Crim. App. filed April 22, 1999, at Jackson), perm. t o appeal denied (Tenn. 1999) (setting fire with intent to burn); State v. Charles Clay Young , C.C.A. No. 01C01-9605-CC-00195, 1997 WL 469900, at *6 (Tenn. Crim. App. filed August 15, 1997, at Nashville), perm. to appeal denied (Tenn. 1998) (arson). But see State v. Donald Ray Hunter , 1989 WL 9585, at * 2 (Tenn. Crim. App. filed February

8, 1989, at Jackson)

(arson isrelevant to credibility). At the time

of the defendant’s convictions in 1993, arson was structural fire damage either (1) Without the consent of all persons who have a possessory,

proprietary

or security interest therein; or (2) With intent to destroy or damage any structure to collect insurance for the damage or destruction or for any unlawful purpose. Tenn. Code Ann . § 3 9-14-301(a) (1 991). The first me thod of commission mig

ht not necessaril

y involve dishonesty, whereas the second method would. Here , the recordof the pre-trial motion contains no indication of the underlying facts supporting the arson convictions. The stat e off ered no such indication, nor did the defendant make any argument about the unde rlying facts . In fact, our reading of the transcript of the pre -trial motion reveals no objection by the defendant to the admissibility

of the arson convictions. Defendant made no offer of proof of his proposed testimony and did not testify at trial. The state argues the defendant has waived this issue b y failing to make an offer of proof. Although an offer of proof is not required to preserve this issue for appeal, our Supreme Court has recognized

that , “depending upon

the facts and circumstances of a case, an offer of proof may be the only way to demonstrate prejudice.” State v. Galmore , 994 S.W.2d 120, 125 (Tenn. 1999). If the trial court did err by ruling the arson convictions

would be admissible

, we are unable to find it reversible in this case. Firstly, the defendant voiced no objection and no argument at the pre-trial hearing with regard to the arson convictions, thereby waiving the issue. Sec ondly, althou gh the defendant’s unsworn denials of misconduct during his January 1996 interroga tion by an officer were introduced into ev

idence, we are

unable to ass ume wha t hi s sw orn tes tim ony w oul d be . Fi nal ly, we are unable to

find prejudice, based

on the record before us, assuming the arson convictions had been admitted for impeachment purposes. This issue is without m

erit.-7- IV. SENTENCING The defendant attac

ks the length

and consecutive nature of his sentences. Although he does notattack the enhancement factors applied by the trial court, h e claim s the trial court imp roperly used the same enhancement facto r to determine the

length of senten

ce within the rang

e and in ordering the sen ten ces b e ser ved con secu tiv ely. The defendant further claims the trial court failed to m ake adequate findings under Tenn. Code Ann. § 40-35-115(b)(5) (criteria for consecutive sentencing for multiple offenses involving sexual abuse of a minor). This Court’s review of the sentence imposed by the trial c

ourt is de novo with a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption is conditioned upon an affirmative showin g in the record tha t the trial judge c

onsidered the sen

tencing princip

les and all relevant facts and circumstances. State v. Ashby , 823 S.W.2d 16 6, 169 (Tenn. 1991). If the trial court fails to comply with the statutory directives, the re is no presumption of correctness and our review is de novo

. State v. Poole , 945 S.W.2d 93, 96 (Tenn. 1997). If our review reflec ts that the trial court followed the statutory sentencing procedure, imposed a lawful sentence after giving due consideration and proper weig ht to the factors and principles set outunder sentencin

g law, and the tr

ial court’s findin

gs o f fact are ade quately supported by the record, the n we may n ot m odify the se ntence even if w

e would have pre

ferred a diffe

rent result. State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). A. Length of Sentence Th e trial court applied the following enhancement factors to both convictions: (1) t h e defendant has a previous history

of criminal convic

tions in addition to tho

se necessary

to establish the appropriate ra

nge; (2) defe

ndant was o

n fe lony probation when he committed the instant offenses; and (3) the defendant abused his position of private

trust. See Tenn. Code Ann. § 40-35- 114(1), (13), and (15). The trial court al so found the child rape was committed to satisfy the defendant’s desire for pleasure and applied factor (7) to the child rape conviction. See Tenn. Code Ann. § 40-35-114(7). The trial court found no mitigating factors. The weight to

be given enhancement factors is left to the discretion of the trial court as long as it complies with the principles of the sentencing act. State v. Moss , 727 S.W.2d 229, 238 (Tenn. 1986). We find no reason to disturb the maximum length of sentences set by the trial court. B. Consecutive Sentences A court may

order sentence

s to run consecutively if the court finds by a preponderance of the evidence that: (5) [t]he defendant is convicted of two (2) or more sta tutory offenses involving sexual abuse of a minor w ith consideration of the aggravating circumstances arising-8-

from the relationship between the defendant and victim or victims, the time

span of defendant's undetected sexual activity, the nature and scope of the sexual acts and the extent of t

he residu al, phy sical and mental da

mage to th

e victim or

victims; [o

r] (6) [t]he defendant is sentenced for an offense committed while on probation. Tenn. Code Ann. § 40-35-115(b). Specific factual finding

s rela ting to the need to protect so ciety are not required for

these categories. State v. Lane , 3 S.W.3d 456, 461 (Tenn. 1999). Nevertheless, the general principles of sentencing require that the length of senten

ce be “justly

deserved in

relation to the seriousness of the offense” and “be no greater than that deserved for the offense committed.” Id. at 460 (citing Tenn. Code Ann. §§ 40-35-102(1) and 103(2)). The trial court

applied both criteria (5) and (6). The defendant contends the trial court failed to make specific findings with regard to factor (5). Regardless, we conclude the defendant was on felony probation from his convictions for arson when he committed the current offenses. Therefore, Tenn. Code Ann. § 40-35- 115(b)(6) provides ample ba sis for consecuti

ve sentencing.

We also conclude the aggregate sentence was justly deserved in relation to the seriousness of the offenses and was not greater than that deserved. Defendant

contends the trial co ur t erred in rely ing upon the same

enhancement fa

ctor in determining the length of each sentence and in ordering consecutive sentencing. However, this court has concluded it i s appropriate to consider the same enhancement factor in determining both the length and consecutive nature of sentences. State v. Melvin , 913 S.W.2d 195, 205 (T enn . Crim. App. 1995). This issue is without merit.

V. AGGRAVATED SEXUAL BATTERY JUDGMENT The legislature ha

s determined that a

sentence for ag

gravated sexua

l battery sh

ould be served at 100%, if said offense was committed on or after July 1, 1995. Tenn. Code Ann. § 40-35-501(i). At s e ntencing, the trial court stated that it was sentencing the defendant as a Range I offender becau se t he time period for count three was the summer of 1995, and no evidence established a specific date of commission f

or the offense. R

e leas e eligibility for a Range I of fender is 30%. However, the judgment in co unt three errone

ously reflects the date of

offense as “1-9-96.” Thus, we direct the trial court to enter

an amended judg

ment for aggr

avated sexual batt

ery refle cting an offen

se date prior to July 1, 1995, so that the Department of Correction will be able to properly calculate the release eligibility date.-9- CONCLUSION
B ased upon o ur review of the record, the judgments of the trial court are affirmed as modified.

___________________________________ JOE G. RILEY, JUDGE