### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE October 17, 2000 Se ssion
STATE OF TENNESSEE v. JOEY L. SALCIDO Direct Appeal from the Circuit Court for Giles County

No. 8381 Jim T. Hamilton, Judge

No. M1999-00501-CCA-R3-CD - Filed March 8, 2001

Defendant Joey L. Salcido was indicted by the Giles County Grand Jury for three counts of

incest and three counts of rape

of a child. Following a jury trial, Defendant was convicted of three counts of aggravated sexual battery as a lesser-inc

luded offense

of child rape and acquitted of the charges of incest. On March 15, 1999, the trial court se

ntenced Defend

ant as a violent 100

% offender to

a termof twelve year

s for eac h of his three convictions and ordered that all sentences be served con secu tiv ely. On April 15, 1999, thirty-one days after Defe ndant’s judgment was entered, Defendant

filed an untimely motion for new trial. The motion was nevertheless heard on April 19, 1999 and denied on April 20, 1999. On April 23, 1999, Defendant filed a notice of appea l whi ch was also untimel y due to the late filing of Defendant’s motion for new trial. On May 25, 2000, Defendant

filed a motion to waive the timely filing of his notic

e to appeal and on

June 7, 2000, this Courtgranted Defendant’s motion. In this appeal Defendant raises the f ollowing issues: (1) whether the Defendant’s co

nviction of agg

ravate d s exual battery

, an offense whic

h was neither cha

rged in the indictment n

or a lesser-included offense of the offenses charged, was er ror; (2) whether, assuming aggravated

sexual battery is determined to be a lesser-included offense of child rape, the trial c our t erred in its jury instruction regarding the mental state nece ssary to convict him; (3) whether the trial court erred w hen i t admitted certain evidence over Defendant’s objections; (4) whether the cumulative effect of the trial court’s er

rors renders the

trial fundamenta

lly unfair so as to offend Defendant’s due process guarantees; and (5) whether the trial court erred when it imposed consecutive sentences. Defendant asserts that his first issue concerns subject matter jurisdiction and, therefore, must be heard by this Court pursuant to Tenn. R. App. P. 13(b). Defendant also urges this Courtto exercise its disc

retion under Ten

n. R. Crim. P. 52(b) or Tenn. R. App. P. 13(b) and consider the remaining four issues. After a thorough review of the record a nd appl icable law, we find no errors requiring reversal and affirm the judgment of the trial court. Tenn. R. App. P. 3 Appe al as of Right; Judgme

nt of the Circuit Cour

t Affirmed.
T HOMAS T. W OODALL , J., delivered the opinion of the court, in whi ch N ORMA M CGEE O GLE and R OBERT W. W EDEMEYER , JJ., joined.-2-

John E. Herbison, Nashville, Tennessee (on appeal) and Claudia Jack, District Public Defender; and Robert H. Stovall, Jr., Assistant Public Defender, (at trial) for the appellant, Joey L. Salcido. Paul G. Summers, Attorney General and Reporter; David H. Findley, As sistant Attorney General; Mi ke Bottoms, District Attorney G eneral; Richard Dunavant, Assistant District Attorney; and Robert C. Sanders, Assistant District Attorney General, for the appellee, State of Tennesse e. OPINION
I. Facts
Defendant

was charged w

ith committing sexua

l offenses aga

inst his daughter, B.S., during the months of October and November 1996. (The victim will be referred to herein by her initials.) Tracy Salcido, the ex-wife of Defendant and m other of B.S., testified that she and Defendant had separated but were still married when the alleged incidents of sexual abuse occurred. In the fall of 1996, B.S. was six years old and spent nearly every w eekend with her father. Tracy test ified that, on a typical we

ekend, B.S. would stay with Defendant from Friday evening until Monday morning wh en she left for school. As a rule, B.S. arrived home “fine and happy ” after weekends with her father. Tracy noticed n othing str ange or unusual in B.S.’s behavior during the time of the alleged abuse and had no personal knowledge that Defendant engaged in any devia nt conduct with B.S. On only one occasion did B.S. ask to go home early from a weeke nd visit with Defendant. Defendant had been dri n king too much that day, and Tracy believed that this was the reason B.S. made the request. Tracy did not take B.S. away from Defendant on this occasion, however, and later , she arrived at home a

ppearing norma

l, happy, an

d cheerful. Tracy testified that after she and Defendant separated,Defendant’s cousin, Monica Dollar, and her family (

Monica’s husband

and four sons)

moved into Defendant’s double-wide trailer and lived with him. B.S. and Monica developed a close relationship, and B.S. enjoyed playing with the four boys during her visits with Defendant.
On November 12, 1996, B.S. informed Tracy that something had occur red between B.S. and Defendant. Tracy did not testify as to the specifics of her child’s allegations, stating only that B.S.’s complaint was of a sexual nature and that it involved Defendant. As a r es ult of B.S.’s compl

aint, Tracy filed a report with the Department of Children’s Services and star ted divorce proc

eedings to protect her daughter. Divor

ce pap ers were delivered to Defendant at work on the day before Thanksgivi ng. Defe nda nt f oun d Tr acy l ate r th at d ay; he was very angry and wanted to know why she had filed for divorce. Tracy had promised Defenda nt that she would talk with him before she took any steps toward divorce. Tracy repliedthat she made her promise to Defendant “before [he] did what [he] did to B.S.” At this, Defendan

t dropped to his kne

es, grabbed his

head, and sta

rte d crying, “Oh my God. What have I done? What have I done?”
On cross-examination, Trac y tes tified that Defendant’s drinking problem was one of the reasons she left him. Defe ndant became ea

sily agitated when drinking, and he would say and do-3-

things that were unusual for him when he was sober. Tracy testified that when Defe ndant drank “he grew horns.” B.S. had also expressed concern regarding D

efendant’s drin

king and told

Tracy that she wanted him to get help. During redirect examination, the prosecu tor asked Tracy whether Defendant

ever p h ysically

abused her durin

g the course of

their marriage. Tracy an swered, “Yes, he did.” B.S., Defendant’s da

ughter, was nine

years old a

t the time of the tria

l. B.S. testified that she recalled spending weekends with Defendant when she was six. For instance, B.S. recalled that one evening when she was too tired to finish watching the Lion King movie, she went to bed. Afterward, Defendant

came to bed, took off both of their clothes, then “got on top of [her] and went up and down .” B.S. testified that she told her mother about this incident and that similar things had occurred on the two preced

ing weekend vis

its. On the previou

s occasions, B.S.

was asleep but woke up when Defendant began to undress her. Defendant was usually naked by then. B.S. testifiedthat after Defendant got on top of her, he put his “private” part, or “pee-pee ,” on her “pee- pee.” B.S. claimedthat Defendant p

ut his private par

t “a little in” and that this

hurt her. B.S. would sometimes cry and holler for help, but nobody ca me. B.S. also aske

d Defendant to sto

p, but he would not. B .S. testified that Defendant treated her this way a total of fourteen times, but she was too frightened t

o tell anyone. B .S. finally c onfided in

her mother because she wanted her mother to find help for her father.
Mi c hael Chapman, a crimina l investigator fo

r the Giles County

Sheriff’s Depa

rtment, testified that he inv estigated t he allega ti ons against Defendant in November 1996. Chapman investigated

all of the child abuse cases and had done so for a number of ye ars. In Defendant’s case, Cha pman spoke first with B.S. in the company of Ms. Pierce, a member of the Department of Children’s Services. Thereafter, during the months of January and Marc h 1997, Chapman spo ke withDefendant three

times concerning the allegations against him. Defendant claimed to have no memory of doing the things Chapman said he was accused of and, since he could not remember what happened, he could neither deny nor admit that the incidents occurred.Chapman did notinterview any of the other persons living in Def endant’s trail

er during the tim

e of the allege

d offenses. Chapman concluded his investigation, then presented the matter to the Grand Jury of

Giles County for consideration. At this time, the pol ice discovered that Defendant had quit his job and left the state. Three months later, Defendant was apprehended in Florida.
Julie Roseoff Will

iams t estified that she worked as a nurse practitioner for “Our Kids Center” in Nashville, Tenne

ssee. One of the C

enter’s jobs was t

o perform medical evaluations on children who were suspected

victims of sexual abu

se. The state

used the medical reports in the prosecution of offenders. In Nove

mber 19 96, Williams examined B.S. but discovered nothing abnormal. No physical signs of pe netra tion such as redness, swelling, or bruising/tearing of the hymen w ere evident. Williams testified that these findings did not negate or support the possibi lity that penetration occurred, however, because too much time had passed (thi rteen days

) since the last incident of abuse. Williams a

lso testified that,

according to

a report prepared by

one of the social workers at the Center, B.S. exhibited none of the typical emotional or psycholog ical “flags” which indicatedchild abuse, but not all childre n exhibit behavioral signs. In sum, B.S.’s examination-4-

revealed no physical , ps ychological or emotional evidence of abuse. The State rested its case-inchi ef at the con clu sio n of Ms. Wil lia ms’ tes tim ony. Shinar Hurd, a case man

ager for the D

epartment of Child

ren’s Services,

was the first witness calledon behalf of Defendant. Hurd testified that on N ovembe r 13, 1996, she met with B.S. and Trac y, her mother, to begin an investigation into Tracy’s allegations of abuse against Defendant. The interview withB.S. was taped, and a transcript was pr

epared which Hu

rd brought with he

r to court. When Hurd initially

asked B.S. about sex ual incidents she h ad experienced w

ith her father, B .S. indicatedonly one but c

ould not tell

her when it happened. Later in the interview, B.S. indicated that multiple abuses occurred on several occasions. During the trial, the State requested permission to introduce the entire transcript of Hurd’s interview with B.S. in

to evidence . The trial court granted the State’s request over Defendant’s objections. The transcript was read to the jury and revealed, in relevant

part, a discussion between Hurdand B.S. concer

ning B.S.’s unde

rstanding of the

difference be

tween “good” a

nd “bad” touches , e.g., that “bad touche

s” occur when a person touches another person’s private parts. B.S. disclosed that she had experienced

“bad touches” at her father’s house. B.S. told Hurd that “when [Defenda

nt] was drunk ... he touched me in my private parts.” B.S. further inf

ormed Hurd that De

fendant would take off all his clothes and start “humping” her. Defendant put his “pee-pee” in hers a “b unch of times” and refused to sto

p even when she c

ried. B.S. told Hur

d that she felt “ha

rdness” and that h

is “pee-pee” was “long.”
Monica Dollar, Def

endant’s cousin, testified t hat she had a clos

e relationship wit

h both Defendant

and B.S. Ms. Dollar

and her family

lived with Defend

ant in his trailer during

the autumn months of 1996 when the alleged sexual ab use of B.S. took place. Ms. Dollar testified that Defendant

slept on the couchevery nig ht and that she had

never discover

ed Defendant in

bed with B.S. Ms. Dollar claimed that she would have heard shouts or calls for help if they had occ urr e d. Instead, B.S. always seemed to be a happy child, nev er hu rt o r up set in a ny wa y. Ms. Dollar testified that Defendant liked

to drink a lot of bee

r and that, sometime

s, he would do or sa

y th ings wh ile drinking that he would not remember the next day.
John Dollar, the husband of Defendant’s cousin, testified that he and his family had resided in Defendant’s trailer during the time that the alleged sexual incidents occurred. Dollar testified that B.S. would sleep in Defendant’s bedr o om on the weekends she came to visit but that Defendant alw ays slept on the couch, whether or not B.S. was there. Dollar further testified that he had never discovered

Defendant in the same bedroom with B.S. or heard B.S. c rying for hel

p. If B.S. had screamed, Dol lar w ould have heard her because the trailer walls were quite thin. Further, Dollar never noticed tha

t B.S. appeared

to walk funny

or be upset or hur

t at any time d

uring her visits. II. Untimely Motion for New Trial
As a p reliminary matter, we observe that most of the issues presented in this ap peal hav e been waived by

the untimely f

iling of Defend

ant’s motion for ne

w trial.-5-

In Tennessee, a

motion for new trial must be filed “within thirty days of the date the order of sentence is entered.” Tenn. R. Crim. P. 33(b). This is a mandatory filing period which cannot be extended. Tenn. R. Crim. P. 45(b). The trial court does n

ot possess jurisdict

ion over an untimel

y filed motion for new trial. State v. Martin, 940 S.W.2d 567, 569 (Tenn. 1997) (citations omitted). And, “[t]he trial judge's erroneous consideration [and] ruling on a motion for new trial no t timely filed ... does not validate t he motion." Id. (citing State v. Dodson , 780 S.W.2d 778, 780 (Tenn. Crim. App. 1989)). An untimely filed motion for new trial “not only

results in the appellant losing the right to have a hearing on the motion , but it al so deprives the ap pellant of the oppo

rtunity to argue on appeal any

issues that were o

r should have been presented in the motion for new trial.” Id. (citations omitted).
On appeal, waiver of issues not presented in a timely motion for new trial occurs pursuant to Tenn. R. App. P. 3(

e), which states: [I]n all cases tried by

a jury, no iss

ue prese nted for review shall be predicated

upon error in theadmission or exclusion of evidence, jury instructions granted

or re fused, misconduct of jurors, parties, or counsel, or other action committed or occurring during the trial of the case, or other ground upon which a new trial is sought, un less the samewas specifically stated in a motion for new trial; otherwise such issues will be treated as waived.
Counsel’s untimely filin

g of a motion for n

ew trial is imputed t

o th e a ppellant for the purpose of waiver. See Dodson , 780 S.W.2d at 780; State v. Williams , 675 S.W.2d 499, 501 (Tenn. Crim. App. 1984).
The failure to timely file a motion fo r new trial does not necessarily deprive this Court of jurisdiction, however. Dodson , 780 S.W.2d at 780. Instead, ou r jurisdiction attaches with the timely filing of a notice of appeal. Tenn. Code Ann. § 40-35-401 (1997). A notice of appeal is required to be filed with

the clerk of the trial court within thirty days af ter the entry of

the judgment or order from which relief is sought. Tenn. R. app. P. 4(a); State v. Hamlin , 655 S.W.2d 200 (Tenn. Crim. App. 1983). The tim e for filing a notic

e of appeal is

tolled by the timely filing of a post-trial motion for judgment o

f acquitta l, new trial, or arrest of judgment. Tenn. R. App. P. 4(c). In the event that the time for filing is not toll ed and an untimely notice of appeal results, this Court may nevertheless

waive the timely filing of the notice of appeal and address

issues which would r

esult in outright dismissal of the p rosecution a gainst the accused. See Dodson , 780 S.W.2d at 780; Williams , 675 S. W.2d at 501. In addition, this court may review the record for pla in errors when necessary to do substantial justice. Tenn. R. Crim. P. 52(b).
In the instant case, the trial court entered D efendant’s judg

ment order setting

forth his sentences on March 15, 1999. Thereafter, Defendant filed an untimely motion for ne w trial on April 15, 1999, more than 30 days after his judgment was entered. Since Defendant faile

d to timely file his motion for new trial, the time for filing the notice of appeal was not tolled pursuant to Tenn. R.-6-

App. P. 4(c). Hence, Defendant’s notice of appeal filed April 23, 1999 was not timely. There are two remedies availa

ble for correc

ting this procedural fault. An appellant may seek post-conviction relief pursuant to Tenn. Code Ann. § 40-30-202, and/or file a motion in this Court requesting that the timely filing

of a notice of appeal be

waived in the interest of justice. Tenn. Code Ann. § 27-1- 123 (2000); Tenn. R. App. P. 4(a). The record reveals that Def

endant filed a mot

ion to waive timely filing of his notice of appeal on May 25, 2000 and this Court granted Defe

ndant’s motion. We no

te that De fendant’s iss

ue that he was convicted of an offense not charged in the indictment is one which, if meri torious, would result in a reversal and dismissal of the charges. Therefore, it is no t required to be included in a timely filed motion for new trial to be considered on appeal. See State v. Keel , 882 S.W.2d 410, 416 (Tenn. Crim. App. 1994) (citations omitted). Nor is the sentencing issue raised by Defendant required to be raised

in a motion for new trial in order to be reviewed on appeal. See State v. Patterson , 966 S.W.2d 435, 440 ( Tenn. Crim. App. 1997); Tenn. R . App. P. 3(e). Therefore, we will review the merits of the issues concer ning convict ion for an offense not charged in the in dictment and sentencing as presented by Defendant. How ever, the remainder of Defendant’s issues which, if meritorious, would result in the granting of a new trial and not dismissal of the prosecution will be waived unless we find that they

constitute plain er

ror. Tenn. R. App. P. 3(e); Tenn. R. Crim

. P. 52(b); State v. Caughron , 855 S.W.2d 526, 538 (Tenn. 1993).

III. Indictment
Defendant

contends that he is entitled to a reversal of his conviction for aggravated sexual battery because this offense was neither charged in

the indictment nor i

s it a lesser-incl

uded offense of rape of a child, theoffense charged, according to our supreme court’s cr iteria for lesser-included offenses as set forth in State v. Burns , 6 S.W.3d 453 (Tenn. 1999). We disagree.
The State argues tha

t Defend ant wa s prop erly con victe d of agg ravat ed sex ual ba ttery. It asserts that, although Defendant’s conviction occurred prior to the supreme court’s dec i sion in Burns , aggravated sexual battery was well-re cognized as a lesser-included offense of rape of a child at the time of Defendant’s arrest and trial. Thus, the State argues, the indictment afforded Defendant sufficient notice of the charges against him, including aggrava ted sexual battery, and he was not deprived of his due process rights. Aggravated

sexual battery requires unlawful “sexual contact”

with a victim less than thirteen (13) years of age. See Tenn. Code Ann. § 39-13-504(4) (1997). Rape of a child requires unlawful “sexual penetration” of

a victim less than thirteen (13) years of age. See id. § 39-13-522. “Sexual contact” includes t he “intent ional touc hing of the v ictim's, t he defendant 's, or any other p erson's intimate parts, or the inte

ntional touching o

f the clothing co

vering the immed

iate area of the

victim's, the defendant's, or any other person's intimate parts, if that intentional touchingcan be reasona bly construedas being for the purpose of sexual arousal or gratif ication”; and, “sexual penetration” means “sexual intercour

se, cunnilingus,

fellatio, anal inter course, or any other intrusion, however slight, of any part of a person's body or of any object into the genital or anal open ings of the victim's, the defendant's, o

r any other

person's body

, but emission of semen is n ot required.” Id. § 39-13- 501(6), (7).-7-

The governing standard for determining whether a lesser offe nse is a les ser-included of another was established in State v. Burns , 6 S.W.3d 453 (Tenn. 1999 ). First, we hold t hat Burns applies to Defendant’s case. The Burns test has been applied retroactivel y numero us times. See Statev. Stokes , 2 4 S.W.3d 303 (Tenn. 2000) ( Burns applied to determ ine lesser-inclu

ded offense in case which was in appe

llate “pipeline”

prior to release of supr

eme court’s Burns opinion); State v. Jumbo Kuri , No. M 1999-00638 -CCA-R3-CD, 2000 WL 680373 at *5 (Tenn. Crim. App., Nashville, May

25, 2 000) no perm. to app. filed ( Burns has been applied too many times

for its retroactiveeff

ect to cas es on direct appeal to be seriously questioned). Hence, the status of Defendant’s conviction offense as a lesser- included a ccording to pre- Burns standards is not controlli ng. Next, we examine whethe r aggravate

d sexual battery

is a lesser-included offense of rape of a child under Burns . Our standard of reviewof this mixed question of law and fact is de nov

o with no presumption of correctness. See Burns , 6 S.W.3d at 461 . The Burns test is designed so that meeting the requirements of any one of the three parts is sufficient to find a lesser-included off ense. However, we shal l confine discussion of this matter to determining whether aggravated sexual batte ry is a lesser-included offense of rape of a child under part (b). Part (b) of the Burns tes t requires that the elements of the lesser-include d offense be inc

luded in the eleme

nts of the charged offense, differing

only in that the lesser-included offense contains a statutory element or eleme

nts establishing (1) a dif

ferent mental sta

te indicating a l

esser kind of culp

ability; and/

or (2) a less serious risk of harm to the person, property or public interest. Id. at 466-67.
At the out set, we note that the elements of the lesser-included offense, aggravate d sexual bat ter y, are nearly identical to the elements of the charg ed offense, rape of a child. Aggravated sexual battery re

quires unlawful “

sexual contact” w

ith a victim less than thirteen (13) years of age. Rape of a child requir

es unlawful “sexua

l penetration” of

a victim l ess than thirteen (13) years of age. The sole difference between the two offenses lies in the accused’s cont act w ith the victim: “sexual contact” versus “sexual penetration.” Defendant argues that the definition for “sexual contact,” i.e., intentional touching for the purpose of sexual arousal or gratification, constitutes an element of aggravat

ed sexual battery

establi shi ng both (1) a mental state indicating a greater, not lesser, culpability and (2) a greater risk of harm under part (b) of

the Burns test and, further , that this precludes this Court from finding that aggravated sexual battery is a lesser-included offense of rape of a child. Unpersuaded

by Defendant’s argument, we continue to believe as we did in State v . Gary

J. Greer that “implicit in the Burns decision is the conclusion that the intent to

touch a victim’s int

imate parts for the purpose of sexual arousal constitutes a mental state r eflecting a lesser degree of culpability

than the reckless, knowing, o r intentional commission of sexual penetration for any reason.” State v. Gary J. Greer , No. M1998-00789-CCA-R3-CD, 2000 WL 284180 at *7, Davidson County (Tenn. Crim. App., Nashville, March 17, 2000), perm. to app. pending

. Aggravated sexual battery is, therefore, a lesser-included offense of rape of a child under part (b) of the Burns test. See Statev. Douglas Bry an Boruff , No. E1999-00274-CCA-R3-CD, 2000 WL 284186 at *4, Blount County (Tenn. Crim. App., Knoxville, March 17, 2000), perm to app. pending (“[a]ggravated sexual-8-

battery is clearly a lesser-included offense of child rape ”). Further, we find that Defendant’s indictmentfor rape of a ch ild was constitution

ally suffic

ient because it su

pplied Defendan

t with notice of the charges which he must defend and adequate basis for e ntr y of a proper judgment of conviction. Defendant is not entitled to relief on this issue.
IV. Plain Error
We now consider Defendant’s issues concerning the trial co ur t’s jury instr

uction and its admission of evi dence whi ch Defendant claims constitute plain error under Tennessee Rule of Criminal Procedure 52(b). Rule 52(b) recognizes “plain error” and provides that “[a]n error which has affected the substantial rights of an accused may be noticed at any time, even though not raised in the motion for a new trial or assigned as error on

appeal, in the discretion of the appellate court where necessary to do

substantial justice.” Tenn. R. Crim. P. 52 (b); see also Tenn. R.App. P. 13(b). In State v. Adkisson , 899 S .W.2d 626 (Tenn. Crim. App. 1994), o ur court set forth

the following factors to consider when determining whether an error constitutes “plain error”:

(a) the record must

clearly establish what occ

urred in the trial

court; (b) a clear and unequivocal rule of law must have been breached; (c) a substantial rig

ht of the accused

must have been ad

versely affected; (d) the accused did not waive the issue for tactical reasons; and (e) consideration of the error is "necessary to do substantial justice."
Id. at 641-42. Clearly, before an error may be recognized

pursuant to Rule 52(b), Tenn.R.Crim.P., the error must be “plain” and it must a ffect a “substa

ntial right” of th

e accused. The

se terms are not self-defining. Id. at 639. The Adkisson court continued:

The word “plain” “is synonymous with ‘cl ear’ or, equivalently ‘obvious’.” A “substantial right” i s a rig ht of “fundamental proportions in the indictment process, a r ight to the proof of every elemen t of the of

fense, and is constitutional in nature.” In short, a plain error is not just an error that is conspi cu ous. Rather, it is an especially egregious er

ror that strikes at “the fairness, integrity or public reputation of judicial proceedings.”
Id. Rule 52(b), Tenn. R.Crim .P., m akes it clear that the plain error rule is not a commonplace rem edy. The intention of the rule is to serve the

ends of justice. Th

erefore, it is inv

oked “only i

n exceptional circumstances [w here necessar

y] to avoid a miscarriage of

justice.” Id. (quoting United States v. Gerald , 624 F.2d 1291, 1299 (5 th Cir. 1980)). Appellat e courts are adv

ised to use it sparingly in recognizing errors that have not been raised by the parties or have been waive

d due to a procedural default. Id.
“Because the Adkisson te st provides a cl ear and meaningful standard for considering whether a trial error rises to the level of plain error in the absence of an objection,”

the Tennessee Sup

reme-9-

Courtformally adopted this test when reviewing a record for pla in error. State v. Smith , 24 S.W.3d 274, 282-83 (Tenn. 2000). In doing so, it re-emphasized that the presenc

e of all five factors must be established by

the record befo

re the existence o

f plain error ca

n be recognized

and that complete consideration of all the factors is not necessary when it is clear fr om the record

that at least one of the factors cannot

be established. Id. The supreme court further stated that the “‘plain error’ must [have been] of such a great magnitude that it probably chang ed the outcome of the trial.” Id. (citing Adkisson , 899 S.W.2d at 642). A. Jury Instruction
Defendant

contends that the t

rial court erre

d in its jury instruc

tion regarding

the mental state necessary to c onv ict him for the cri me o f agg rava ted sex ual bat ter y. Defendant argues that the jury instructions stated that, in order to convict him, it was only necessary for the jury to find that Defendant

acted ei ther in tentionally, knowingly, or recklessly when, in fact, it was imperative for the jury to find that Defendant acted intentionally with re spect to his sexual contact with the vi ctim. Defendant submits that

this error is fundamental, plain, and so prejudicial that justice demands he receive a new trial.
Under the United States and Tennessee Constitutions, a defendant has a constitutional right to trial by jury. U.S. Const. amend. VI ; Tenn. Const. Art. I, § 6. In Tennessee, the right to trial by jury is the right guarantee d to every litigant in jury case s to have the facts involved tried and determined by twelve jurors. State v. Bobo , 814 S.W.2 d 353, 356 ( Tenn. 1991 ) (citing Willard v. State , 130 S.W.2d 99 (1939)) . It follows tha t the defendant ha

s a right to

have “every issue of fact raisedby the

evidence and material to his defense submitted to the jury upon proper instructions by the judge.” State v. Brown , 836 S.W.2d 530, 553 (Tenn.1992) (citations omitted).
In the instant c

ase, the trial co

urt’s initial instru

ctions to the jury

were as follows:
F or you to find the

defendant guil

ty of this off

ense, the St

ate mus t h ave proven, beyond a reasonable doubt, the existence of t h e following esse ntial ele ments. One, the defendant had unlawful sexual contact with the alleged victim, in which the defendant int

entionally touchedthe alleged vic

tim’s intimate part

s or the cloth

in g covering the immediate are

a of the allege

d victim’s intimate p

arts. And two, that the alleged

victim was less than 13 years of age. And three, that the defendant acted either intentionally, knowingly , or recklessly.
Defendant

argues that the

se instructions co

nfused the jury

, as shown by

the fact that the j ury initially returned with a verdict for a crime which does not exist: reckless sexual battery. However, the trial court had the foll

owing discussion w

ith the jury a

fter it receive

d the improper ver

dict:
THE COURT: You say that you find the defendant guil

ty of reckless sexual battery, in

nocent of rape a

nd incest. When y

ou say rec

kless sex ual battery, do you mean ag gravated sexual battery? One of the-10- other alternatives that

you had? You had rape of a child, incest, and aggr avat ed s exu al b att ery. THE JURORS: [No response.]
THE COURT: That was the only three choices that you had. Do you need to go back and talk some more? THE JURORS: [No response.]
THE COURT: You didn’t have re ckless–well, there is no such charge as reckless

sex ual bat ter y. You have aggravated sexual battery in this case.
A JUROR: We read it in there.
A JUROR: Under aggravated, t here was int ent ion all y, kn owi ngly, and reck les sly.
THE FORELADY: We considered intentionally and t he n we con sid ered kno win gly.
A JUROR: Then we settl ed with reckless.
THE COURT: Those are definitions that have to be used in defining that charge. That’s not a charge, reckless sexual battery. Aggravated sexual battery is the charge. A JUROR: Do you want to go back and talk?
A JUROR: No. I don’ t. A JUROR: Yes. I think we do need to go back and talk.
THE COURT: Yeah, I think you do. Take a look at that charge when you get back there.
After the jury was sent back for further deliberation, it returned nine minutes later with a verdict which found Defendant guilty of three counts of agg ravated sexual battery and not guilty of rape of a child and incest

. In State v. Howard , this Court addressed a very similar issue regarding jury instructions. The trial court had provided incorrect instructions on the elements of a ggr avated sexual battery and sexual battery. Although the defendant did not raise the issue at trial or on appe

al, we decided to-11-

addressthe issue in view of the remand (based on ground that trial court’s failure to instruct on a lesser-included

offense deprived defendant of right to trial by jury). State v. Howard , 926 S.W.2d 579, 587 (Tenn. Crim. App. 1996) (overruled on other grounds in State v. Williams , 977 S.W.2d 101 (Tenn. 1998)).
At the conclusion of the proof at the trial in Howard , the trial court instructed the jury that aggravated

sexual battery included the following elements: (1) the defendant had unlawful sexual contact with the alleged victim or the alleged victim had unlawful sexual contact

with the defenda

nt; (2) the alleged victim was less than thirteen (13) years of ag e; and (3) the defenda

nt acte d intentionally, knowingly or reck lessly

. Id. (emphasis added). This was an importa nt issue because this Court had previously held that the various elements of a ggrava ted sexual battery contained different culpable mental states within the same offense. See id. (citing State v. Parker , 887 S.W.2d 825, 827 (Tenn. Crim. Ap p. 1994)). More sp

ecifically , we had noted tha

t our statutes plain

ly provid ed that “sexual contact” required “intentional touching” of the victim’s intimate parts or clothing f or the purposes of “sexual arousal or gratification.” Tenn. Code Ann. §§ 39-13-501(6 ) , (504) (1997). The definition of aggravated sexual battery, however, was silent regarding the culpable mental state as to the victim’s age. Thus, we determined that under Tenn. Code Ann. § 39- 11-301(c), mere reckless conduct applied (as well as intentional or knowing) to the element regarding age. Tenn. Code

Ann. § 39-11-301(

c) (1997); Howard , 926 S.W.2d at 587. We held that when an offense has different mens rea for separate elements, the trial court has a duty to s

et forth the mental state for each element clearly so that the jury can determine whether

the state has met its burden of proof. Howard , 926 S.W.2d at 587. Similarly to Howard , the trial court in the instant case may arguably have erred when it gave the jury unclear

instructions. Next, we must determine whether the error, if any, rose to the level of plain error

according to the factors set forth in Smith . Recognition of a n error does not r

esult in automati c reversal of a trial court’s judgment since the error may be harmless. Adkisson , 899 S.W.2d at 626. After ca reful review of

the record, we find that any error in Defenda nt’s jury instructions did not adversely affect a substantial right of Defendant and,

therefore, did n

ot rise to the level of plain error under Tenn. R. Crim. P. 52(b). First, we observethat the jury instruction given in Howard is distinguishable from the charge given in Defendant’s case. From t he quoted l anguage above, we observe that part (1) of the instruction concerning “sexualcontact” in Howard omitted any mention of the requisite mens rea. The trial court in Howard did not give an instruction on the culpable ment al state until part (3), which could

be logically construed, then, to pertain to the entire instruction which pr eceded it. By contrast, the instruction given in Defendant’s case (regarding “sexual contact”

) required the ju

ry to find that “the defend

ant had unlawful s

exual contact with t

he alleged vic

tim, in which the defendant intentionally

touched the alleged victim’s intimate parts ....” In the latter case, the

word “intentiona

l” clearly attached to the f

inding of “sexual c

ontact.” Grante

d, there is an indic

ation that the jury

in Defendant’s case may have been confused. However , the trial judge had

the opportunity to clear up any confusion prior to the verdict. Aware that reckless sexual ba

ttery was “

not a charge,” the jury the n ret ire d to del ibe rat e fur the r and ret urn ed a v erdi ct o f gui lty f or ag grav ate d se xua l ba tte ry.-12-

We are guided by

the decision of our

supreme court in State v. Garrison , ____S.W.3d ____ (Tenn. 2000). In Garrison , the trial court had omittedcertain statutor y languag e in its instructions to the jury. On appea

l, th is Court found that the jury charge omitted an essential element of the of fense, reversed the co

nviction, and gr

anted the defen

dant a new trial. T

he Tennessee Su

prem e Courtreversed. While t he supreme cour

t agreed that t

he defendant’s rig

hts were violated

, it considered the erroneous instruction to be harmless error. Although the jury instruction issue before the supreme court concerned an omission rather than an incorrect ins

truction, we beli

eve the re marks made by the supreme cour

t are helpful in evaluating the significance of the error before us. The supreme cour t remarked that a

very limited class of errors have b

een found to be “s

tructural,” hen

ce subject to autom atic reversal. Garrison ,

_____S.W.3d at _____. Relying on Neder v. United States , the Garrison court foundthe following language persuasive:

[A] jury instruction that omits an element of the offense ... di ffers markedly from the constitutional violations we have f ound to defy harmless-error

review. Those cases, we have explained, contain a

“ defect affecting the framewo rk within which the tri al proceeds, rather than simply an error

in the trial process i

tself .” S uc h errors affect the entire process

and necessarily

render a trial f

undamentally unfair. Put another way, these errors depri ve defendants of “

basi c protections” without

which “a criminal trial cannot reliably se rve its function as a vehicle for determinat ion of guilt or innocence ... and no criminal punishme

nt may be regarde

d as fundamentally f

air

.... Id. at ___ (quo ting Neder v. United States , 527 U.S. 1, 119 S.Ct. 1827 , 144 L.Ed.2d 35 (1999)) (emphasis

added). Concluding its analysis, the supreme court determined that “the integrity

of the jury as a fact-finding body was not disturbed” but, rather, an impartial jury was required to ma

ke its findings pursuant to imperfect instructions by the trial court. Id. at ___.
In Defendant’s case, we similarly find that the jury instruction error

, if any, had no impact on the integrity of the final verdict. When faced with the fact that “r eckless sexual battery” was not a convictable

offense, Defendant’s jury reviewed the instructions and decided that the evidence was su fficien tto e sta bli sh gu ilt beyo nd a reas ona ble dou bt f or t he cr ime of ag grav ate d se xua l ba tte ry. The instructions given to Defendant’s jury included “intentional” in the definition which pertained to the element of se

xual contact. We bel

ieve that Defen

dant was not depri

ved of “basic pr

otections” with out which “a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence . . . .” Id. at ___. Defendant is not entitled to relief on this issue. B. Admissibility of Evidence
Defendant

contends that the trial court erred when it admitted certain evidence over Defendant’s objections. Specifically, Defendant alleges that the trial co urt comm itted prejudicial and reversible error when it permitted the mother of the victim (Defendant’s ex-wife) to t esti fy-13-

regarding prior bad acts committed by Defe ndant and, again, when it allowed a prior statement

by the victim to be read into evidence at trial.
Admissib il ity, relevance and competency

of expert testimony

are matters that

largely r est within the discretion of the trial court. See State v. Ballard , 855 S.W.2d 557, 562 (Tenn. 1993). The adm ission or exc lusion of evidence at trial will not be disturbed on appeal unless discretion was arbitrarily exercised or

abused. See State v. Begley , 956 S.W.2d 471, 475 (T enn. 1997); State v. Gray , 960 S.W.2d 598, 606 (Tenn. Crim. App. 1997) (cit ing State v. Hayes , 899 S.W.2d 175, 183 (Tenn. Crim. App. 1 995); State v. Griffis , 964 S.W.2d 577 (Tenn. Crim. App. 1997).
Defendant’s first allegation of error stems from the fact that the trial court permitted Tracy Salcido, Defendant’s ex-wife and mother of the victim, to testify regarding prior bad acts committed by Defendant. Defendant claims that allowing Tracy to testify that Defendant had previously abused her physically during his bouts of drinking constituted plain and prejudicial error. Tracy was called to testify as a w itness for the State. During the trial, the following testimony was elicited and forms the sole basis for Defendant’s complaint reg arding this matter:
DEFENSE

(cross-examination): When you left your husband, in the first part of June, wa s it basica lly over his dr inking?
TRACY: His drinking and how–what a different man

he turned into when he dr

anked [sic

].
DEFENSE: And Joey had admitted that he had a drinking proble

m, had he not?
TRACY: Yes.
DEFENSE: And he was always able to hold down a job, was he not? TRACY: Yes, he was

. DEFENSE: He always worked 40 hours a week?
TRACY: Yes.
DEFENSE: But Joey, jus t a bout every weekend, he would get on a binge, would he?
TRACY: Just whenever

the mood suited him.
DEFENSE: And the m

ood suited him all the

time, didn’t it?-14- TRACY: Really

, all the time? Well, he dr ank a lot.
DEFENSE: And that led to great upset on your part and you ultimately separated in June? TRACY: Yes, sir.
DEFENSE: And [B.S.] was prese nt when these

dri nking episodes took place? TRACY: Yes, sir.
DEFENSE: Almost sto

ned, falling dow

n on some occasion

s? TRACY: Yes, sir. DEFENSE: [B.S.] didn’t like that, did she?
TRACY: I don’t guess so. I mean [B.S.] and I never t alked about it.
* * *
DEFENSE: Did you hear her make the stat

ement to th

e departm

ent social worker that

the reason she tol

d this story, s

he just wanted her dad to get so me help for h is drinki ng?
TRACY: I did not h

ear that stateme

nt.
DEFENSE: Has s he ever m ade the statemen t, and then say

get him help for his drinki

ng problem?
TRACY: Yeah. She would ask me if he were sick [sic], an d I would say, yes, and she would say , “Yeah. He needs some help.”
* * *
STATE (re-direct examina tio n): All right. [Def

ense counsel] also asked something about the situation in your marriage and what ty pe of marriage you had, and th at sort of thing. Let me ask you if Joey Salcido, during the cour

se of that marriage, ever physically abused you? TRACY: Yes, he did.-15-

At this point in the tria

l, Defendant’ s counsel o bjected on the ground that Defendant’s relationship

withTracy was not relevant to the charges a gainst him. The jury was removed, and a brief hearing was conducted during which the Stateargued that its l

ine of questioning

was admissible becau se Defendant’s cross-examination had “opened the door” to testimony concerning Defend ant’ s behavior while drinking. The trial judge agreed with the St ate, observing that Defendant had questioned Tracy concerning “how [Defendant] acted w hen he got drunk.” The trialjudge overruled Defendant’s ob

jection, after which the jury was readmitted to the courtroom and the following testimony occurred:

STATE: (re-direct examinationcontinued): Mrs. Tracy, I believe that you said at some point that when

Joey Salcido w

ould drink, he would be a different person? TRACY: Yes, sir. STATE: If y

ou would, explain to us

what you mea

n by that.
TRACY: He would be com e easily agitated and out of control. He would say an d do thing s that he normally wouldn’t say and do. I always use

d to tell him that morni

ng after that he

grew horns.
* * *
STATE: Okay. And I believe that along about the time that we were taking a break, I had asked y ou if he had been physically abusive? TRACY: Yes, sir. STATE: Is that one of the things that he would do? TRACY: Yes, sir. STATE: All right. T

hat’s all.
Defendant

argues that the

above testimony wasallowed into evidence in violation of Tenn. R. Evid. 404(b).
Tenn. R. Ev id. 404(b) states the following:
Evidence of

other crimes, wr

ongs, or acts is n

ot admissible to

prove the character of a

person in order to

show action in conf

ormity with the character trait. It may, howe ver, be admissible for

other purposes. The conditio ns which must be satisfied before allowing such evidence are:-16- (1) The court upon request must hold a hearing outside the jury's presence; (2) The court

must determine that a material issue exists other than conduct conforming with a character trait and must upon request state on the record the material issue, the ruling, and the reasons for admitting the evidence; and (3) The court must exclude the evidence if its probative value is outweighed by the danger of unfair pre judice.
Tenn. R. Evid. 404(b). Te nnessee’s rules

of evidence re

cogniz e that character evidence can be unnecessarily

embarrassing, time consuming, given inappropriate weight, and/or mislead the trier of fact to punish the d

efendant for de

eds other that thos

e for which he is

on trial. See

Tennessee Law of Evidence, § 404.3 , Neil P. Cohen (1995 ). Because of t hese competi

ng concerns, the rules of evidenc e struck a compromi se with regard

to admissibility

of character e

vidence, making

it admissible only under certain circumstances. Id.
For example, Tennessee Rule of Evidence 404(a) provides, in relevant part, that evidence of a person's c

haracter or a t

rait of charac

ter is not admissible

for the purpose o

f proving acti

on i n conformity

with the charac

ter or trait on a particular occasion except, inter alia, when evidence of a pertinent character trait is offered by the accused or by the

prosecution to rebut the same. Tenn. R. Evid. 404(a)(1). As an illustration, the character of the accused is admissible once the defendant “opens the door” by introducing evidence of his or her own “pertinen t” character trait. See Tennessee Law of Eviden ce, § 404.3, Neil P.

Cohen (1995); State v. West , 844 S.W .2d 144, 149 (Tenn. 1992); State v. Phipps , 883 S.W.2d 138, 152-53 (T enn. Crim. App. 1994). Until the defendant takes this step, however, the State ca nnot introduce evidence of the defendant’s bad character to prove that the defendant acted in conformity

with that charac

ter. Various meth

ods exist by which the defens

e can “open the d

oor.” Using cha

racte r wit nesses to testify about a particular character trait of the defendant or cross-examining prosecution witnesses on the pertinent subject matter are two e

xamples.
We find no error in th

e trial judge’s

decision to admit Tr

acy’s te st imony. Defendant’s qu estions concerning whether Defendant had a drinking problem, how he acte d when drunk, and whether drinking was the reason Tracy left Defendant,

et cetera, all could reasonably be construed to have effectively “opened the door” making character evidence admissible under Rule 404(a). See Statev. Phipps , 883 S.W .2d 138, 1 53 ( Ten n. C rim . Ap p. 1 994 ). M oreo ver, as ev ide nce, Trac y’ statements

concerning Defendant’s drunken misbehavior and bad acts were generally repetitive or cumulative in nature. During Office r Chapman’s testimo

ny, transcr

ipts of the interviews between Chapman and Def

e ndant were submitted to the jury wherein Defendant admitted that his wife confronted

him with things he had done which “appalled” him and which “he could not believe had taken place.” Defendant confessed to have no memory of them, however, because he had been drunk at the time. For the f

orgoing reas

ons, we hold

that admitting this evidence did not adversely affect a substantial right of Defendant. Accordingly, under Smith we find no plain error.-17-

Defendant

alleges that the trial court also erred when it admitted the victim’s prior statement in to evidence a t trial. Defendant claims that, during the direct examination of the Department of Children’s Services caseworker, Defendant’s counsel placed in issue only a smal l portion of the victim’s statement but, in spi te of this, the tria

l court allowed the

entire sta temen t to be read into evidence during trial which constituted plain and prejudicial error.
Defendant’s complaint concerns the testimony of Shi nar Hurd, the case worker who interviewed

B.S. after she complained of being abused by Def endant. The record

shows that Hurd’s testimonyon the subject of her interview of B.S., as elicited by defense counse

l, indicated that B .S. had been abused only one time, contradicti

ng B.S.’s prior

testimony. Du

ring its cross-examination of Hurd, the State inquired further into the contents of the victim’s statement and Defendant objected. The trial judge ruled t hat De fendant had “opened the door” to further testimony concerning the victim’s statement. Thus, he allowed the victim’s entire sixteen-pa ge statement to Hurd to be read in

to the record at t

rial. Again, after considering the factors set forth in Smith , we find no evidence of pl ain err or. Where specific questions and answers taken out of context do not convey the true picture of theprior statement alleged to be inc

onsistent, it is unfa

ir to permit r

ef erence only to isolated, unexplained responses by the witness and there is no error in allowing the statements to be placed in context. See Statev. Bo yd , 797 S.W.2d 589, 593 (Tenn. 1990) (citing Cole v. State , 498 S.W.2d 915, 917 (Tenn. Crim. App.1 973)) . In addition, Defendant’s brief does not contain a citation or a quote that indicates what specific language Defendant believes constitutes plain and prej udici al error. Issues not supported by argument

or appropriate references to the record will be treated as waived in this Court

. Tenn. R. Ct. Crim. App.10(b) ; Tenn. R. App. R. 27( g). Defendan

t is not entitled to re

lief on these issues.
C. Cumulative Error
Defendant’s next issue, whether the cumulative effect of the trial court’s errors renders the trial fundamentally

unfair so as to off

end Defendant’ s due process gu arantees, likew

ise affords no relief to Defendant. Any and all errors brought to the attention of this Court thus far have be en deemed harmless

or nonexistent. This c

laim has no merit.
V. Consecutive Sen

tencing
Defendant

argues t he tri al court erred when it imposed consecutive sentences. Defendant f urther argues that, because the trial court failed to discuss how the statutory c riteria containe d i n Tenn. Code Ann. § 40-35-115(b)(5) applied to the facts in Def

endant’s case,

this Court’s review of the sentence should be de novo without a presumption of correctness. When an accused challenges the length, range, or the manner of service of a sentence, this Courthas a duty to co nduct 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) (1997). This presumption is “conditioned upon the affirmative sh owing i n the record

that the trial court-18-

considered

the sentencing principles and all relevant facts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 199 1) (emphasis added). Even though the trial court may well have considered

the sentencing principles as set forth in § 40-35-103, the r

ecord does not co

ntain explicit statements

by the trial judge that he did so. For this reason, we review Defendant’s sentence de novo without a presumption of correctness.
In conducting a de novo review of a sentence, this co u rt must consider (a ) the evidence,

if any, received at

the trial and the sentencing hearing; (b) the presentence report; (c ) the principles of sentencing and arguments as to sentencing alternatives; (d) the na ture and characteristics of the criminal conduct involved; (e) any statutory mitiga ting or enhancement fac tors; (f) any statement that the defendant made

on his own behalf; and (g) the potential or lack of potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, 103, 210 (1997). See State v. Smith , 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).
If our review ref

lects that the tri al court followed the statutory sentencing procedure, imposed a lawful sentence after

having gi ven due consideration and proper weight to the factors and principles set out und er the sente ncing law, an d made findi ngs of fact that are adequately

supported by the record, then we may not modify the sentence even if we woul d have preferred a different result. State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). Non-mandatory

consecutive sentencing in this case is governed by Te nnessee Code Annotatedsection 40-35-11 5. According to that statute, the tr

ial c ourt ma

y order consecutive sentencing where a defendant is convicted of more than one criminal offense and the court finds that one or more of the required s tatutory cr

iteria exist. Tenn. Code Ann. § 40-35-115(a) (1997); State v. Black , 924 S.W.2d 912, 917 (Tenn. Crim. App. 1995).
The trial court based its order of consecutive sentencin g upon its finding that Defendant’s criminal actions met the criteria set forth in Tennessee Code Annotated § 40-35-1 15(b)(5). That subsection authorizes consecutive sentencing whenever

the defendant is con vict ed of two (2) or more statutory offenses involving sexual abuse of a mino r with consideration of the aggravating

circumstances a

rising from [1] the relationship between the defendant and victim or victims, [2] the time span of defendant’s undetected sexual activity, [3] the nature and scope of the sexual acts and [4 ] the extent of the residual, physical and mental damage to th e victim or victims . . . .
Tenn.Code Ann. § 40-35-115(b)(5) (1997) (emphasis added). There is no doubt that Defendant was convictedand sentenced for tw o or more offense

s involving sexual a

buse of a minor. With consideration giv en to the additional factors, we find that the first and third factors clearly justify consecutiv e sentencin g.-19-

Regardingthe first factor, the relationship between the def endant a nd victim, the fact that Defendant

is the victim’s father shows that Defendant used a position of trust to commit

his criminal acts. Defendant was e

ntrusted with, and

indeed responsib

le for, the six-year-old victim’s safe care and well-bei ng durin g his visitation with her. The trial co

urt stated that it c

onsidered this circumstance aggravating. We agree. See State v. Lane , 3 S.W.3d 456, 459 (Tenn. 1999)
As for the third factor, the nature and scope of the sexual acts, the trial court found that the evidence of sexual abuse was significant. The victim testified that her father committed sexual acts with her “fourteen times,” that he hurt her, and t

hat he refused to

stop even when she hollered and cried. Even though Defendant was not convicted of rape of a child, the testimony of the victim that Defen dant

penetrated his da

ughter with his pe

nis on numerous occ

asions was suffic

iently aggravating

for purposes of im

posing consecut

ive sentences un

der § 40-35-115(

b)(5). The fac

ts underlying

an offense

for which a defendant was acquitted may be considere d in sentencing so long as they were established by a preponderance of the evidence. See State v. Winfield, 23 S.W.3d 279, 281 (Tenn. 2000). Defendant also argues that the trial court’s use of the familial relationship both to enhance withinthe range and justify imposing consecutive sentences cr eates a multiplier effect which i s improper according to se

ntencing princ

iples. The recor

d shows that t he trial court used two enhancement

factors to justify

giving Defen

dant the maxim

um sentences for a Class B fel ony in Range I: factor (1), which applies when the defendant has a previous history of criminal convictions or criminal behavior in addition to those necessary to establish the appropriate rang e; and(15), used when the defendant is found to have abused a position of public or pr ivate trus t. See Tenn. Code Ann. § 40-35-114(1), (15) (1997). Defendant claims that the trial court

erred when it used his status as the victim’s father to both app ly enhance

ment factor (15)

and also impose con

secutive sentenc

es. This issue has been addressed by this Court on several prior occasions. In State v. Meeks , this Court held that consideration of prior criminal activity for both enhancement and consecutive sentencing purposes is permissible. State v. Meeks , 867 S.W.2d 361, 377 (T enn. Crim. App. 1993); see also State v. Davis , 825 S.W.2d 109, 113 (Tenn. Crim. App. 1991). Specifically, “[t]here is no prohibition in the 1989 Sentenc ing Act agains

t using the same f

acts and circums

tances both to enhancesentences under applicable enhancement factors and to require those sentences to be served consecutively.” Meeks , 867 S.W.2d at 377; see also State v. Davis , 757 S.W.2d 11, 13 (Te nn. Crim. App. 1987).
In light of the above, we affirm the trial court’s decision to impose c onsecutive sente

nces. We find that Defendant’s actions met the criteria set forth in Tenn.Code Ann. § 40-35-115(b)(5) and that the trial court’s use of Defend ant’s relationship to B.S. to both enhance his sentences under Tenn. Code Ann. § 40-35-114(15) and impose consecutive sentences under Tenn Code Ann. § 40-35-115(b)(5) was not improper. Defendant is not entitled to relief on this issue.
VI. Conclusion For the forgoi

ng reasons, we

AFFIRM the ju

dgment of the tri

al court.-20- ____________________________________ THOMAS T. WOODALL, JUDGE