It i s t h e p o l i cy o f t h i s co u rt t o refe r t o m i n o r v i cti m s o f sex u al o ffen ses b y t h eir i n i t i als. 1 

### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE

AT KNOXVI LLE A ssi gne d on Br ie fs Jul y 28 , 200 9 STATE OF TENNESS EE v . DONALD EDWARD LYNCH Appeal from t he Criminal Court for Sul livan Cou nty No. S48,752 Jerr y Scott, Senior Judge

No. E2008-01435-CC A-R3- CD - A ugus t 24, 2009

A S ull iv a n Co u n ty Crim in a l C o u r t j u r y c o n v ic te d th e d e f e n d a n t, D o n a ldE d w ar d L y n c h , o f two counts of espe cially aggr avate d sexual ex p l o itation of a minor, two counts of a ggravated sexua l battery, a nd six counts of rape of a c hild. He cha lle n g es hi s convictions, arguing that the vide o re c or din g us e d in his c on vic tio n wa s dis c ov e re d thr ou gh a n ill e ga l se arc h a ndsei zure . He a lso challenge s the legal suff

iciency of the convicting evidenc e. We discern e rror in the judgments for Counts eight through 10 of rape of a child and r emand f or cor rec tion of cleric al er

ror. I n all other respe cts, the judgments of the trial c ourt are aff irmed.
Te nn. R . A pp. P . 3 ; J udgm e nt s o f the Cr im ina l C our t A ff ir me d in P ar t a nd Ca se Re ma nde d
J A M ES C UR W OOD W I TT , J R ., J., delivere d the opinion of the court, in which J OS EP H M. T I P TO N , P.J., and D. K EL LY T HOMAS , J R ., J., joined.
Gene Scott, Jr., Johnson Ci ty, Tennesse e, for the appe llant, Donald Edwa rd Lynch.
Robert E. Cooper, Jr., Attorney Genera l and R eporte r; J. Ross Dyer , Assistant Attorney Genera l; H. Gre eley W ells, Jr., Dis t ri ct Attorney Ge nera l; and Barry P. Staubus, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee
. OP IN ION
The Depa rtment of Children’s Service s (“D CS”) contac ted the Kingsport City Pol ice Depa rtment in Marc h 2003 to report suspicions of t he sexual abuse of T.G. , born August 12, 1995, 1
a ndS.G ., bo rnOc tob e r 1 4, 19 91 . Ba se d o n in fo rm a tio n fr om DCS, of fi c e rs of the Ki ng sp ort Cit y Police Depa

rtm en t i n v es tigated the def endant. Upon se arc hing his home, the office rs re cover ed se ve ra l vi de o r e c or din gs that di sp la ye d T .G . a ndS.G . n ake d a ndinv olv e d in se xu a l a c ts.The j udgm ent s f ur t her or der ed t hat t he defenda nt pa y a $25, 000 fi n e for C o unt s one t hr ough f our a nd a 2 $50, 000 fi ne f or Count s fi ve t hr ough 10.

I n 2 0 0 3 , O f f i c e r M a r s h a l l wo r k e d a s a d e t e c t i v e f o r t h e Ki n g s p o r t P o l i c e De p a r t me n t ; h o w e v e r , a t t h e t i me 3

o f tria l, h e n o lo n g e r h e ld th e p o sitio n o f d e te c tiv e
. -2-

On J anuary 21, 2004, the defendant was char ged by pre sentment with one count of espec ially aggra vated se xual exploitation of a minor, S.G. See T.C.A. § 39-17-1005 (1997). The prese ntment further

alleged that the defe ndant committed the following offe nses against T.G.: one count of es p ec i al l y aggra vated se xual exploitation of a minor, see id. ; two counts of aggr avate d sexual battery, see id. § 39-13-504; and six c ounts of rape of a c hild, see id. § 39 -1 3- 52 2. Th e State timely filed a notice of

intent to seek enhanc ed punis hment, a noti ce of enha nceme nt fac tors, and a motion to i mpose consec utive sentenc es.

Th e de fe nd a nt f

ile d a pr e tr ia l mo tio n to su pp re ss the video rec or din gs fo un d at hi s home that displayed the vic tims. The trial court he ld a suppression hea ring and de nied the motion. After a two-day jury trial, the def endant wa s convicted of

all counts

. T h e t rial court imposed concur rent e ight-year , Range I sentenc es in the Tenne ssee De partment of Corr ection (“ TDOC”) for the def endant’ s espec ially aggra vated se xu al ex p loitation of a minor convictions. He r ece ived concur rent e ight-year

sentenc es in T DOC as a violent off ender for his aggr avate d sexual battery convictions to be ser ved conse cutively to his se xual exploitation c onvictions. The court order ed an e f f e c ti v e 5 0

- y e ar

s e n te n c e inT D O C a s a

c h il d r apist, s ee id. § 39-13-523( b), for his six rape of a child convictions, to be ser ved consecutively t o his other convictions for a total effe ctive sente nce of 66 yea rs. After the t rial court denied his motion for new t rial, t he defenda nt filed a timely notice 2 of app e a l. Suppression Hearing

The de f endant moved the court to suppre ss videotapes c ontaining footage of S.G. and T.G. involved in sexual a ctivities. The defendant argued that of fice rs of the K ingsport Poli ce Depa rt m en t conducte d a wa

rra ntless searc h of his home on Marc h 21, 2003. He a rgued that law e nf or c e me nt o ff

ic e rs a sk e d f

or his c on se nt onl y af

te r fi rs t ille ga lly se arc hin g his hom e a ndthat a ll subsequent sea

rche s wer e inadmis sible “fr uit of t he pois onous tree .” He further maintained that any consent to sea

rch w as unknowing or involuntary.
Offic er Rick M ar s hall of the Kingsport Police De partment testified that Veronic a 3 Camp of DCS h ad n o t i fi ed him of allegations of c hild sexual abuse of S.G. and T.G. that ha d oc c ur re d at th e de fe nd a nt’ s r e sid e nc e . On the mornin g of Marc h 2 1, 20 03 , O ff ic e r M ars ha ll a ndMs. Camp travele d to the defe ndant’s re sidence in Kingsport, T ennesse e. Offic er Marsha ll testified that th e defe nd ant didno t a ns we r the do or a ndthat he le ft

his bu sin e ss c arda sk ing the de fe nd a nt t o contac t him. He maintained that he did not look into the defe ndant’s windows or attempt to search his house at the time.

Offic er Ma

rshall testified that the defe ndant called him later that morning and agr eed to meet him at the police de partment. Of fice r Mar shall testified that, while o n t h e telephone , he-3-

informed the de fendant of the subject a bout which he wanted to speak w ith him. The d ef en d ant arrive d a t the po lic e de pa

rt me nt, a ndOf

fi c e r M ars ha ll i nf

orme d h im o f h is Miranda rights. Office r Marsha ll testified that the defe ndant was not unde r ar rest but that he aske d the def endant to sign a waive r o f h is Miranda ri gh ts. He ma int a ine d th a t he us e d n o c oe rc ion , th re a ts, or pr omi se s in his interview w ith the defe ndant.

Offic er Ma

rshall testified that he transcribed the defe ndant’s stateme nts and that he revie wed the statement wit h the defendant before the defendant signed it. Offic er Ma rshall testified that he aske d if he c ould visit the defe ndant’s home to se arc h for videotapes possibly involving T.G. and S.G. Off

icer Marsha ll stated that the defe ndant provided ve rbal consent to sear ch his home. The de fe nd a nt l e ft

the po lic e statio n a nddr ov e him se lf to h is r e sid e nc e , w he re he me t O ff ic e r M ars ha ll and Ms. Camp. Off

icer Marsha ll testified that the defe ndant all o we d them into the residenc e and that they bega n sear ching for vide otapes.

Explaining the inside of t he def endant’ s home, Off

icer Marsha ll said, “Mr. Lynch collecte d a lot of things: tools , there was seve ral diff ere nt types of t apes like that you buy at the store wi th the re gu lar andthe ho me ma de vid e os , a nd jus t a lot of – a lot of ite ms ins ide the ho us e .” Ms. Camp informed O f

f ic e r M a r s h allth at she found videotape s with labels displaying the victims’ names in the kitchen and unde rneath the k i t ch en ca b inet. He a nd Ms. Camp obtained 15 videotape s ref lecting the victim s’ names or i nitials from the defe ndant. He testified that the def endant pe rmitted the m to take the vid e ota

pe s. Of fi c e r M ars ha ll t e sti fi e d th a t, w he n h e a ndMs. Ca mp f ou ndthe tape s, the def endant state d that “he gue ssed he wa s in trouble.”
Offic er Ma

rshall viewe d the videotape s at the police s t at i o n. He sa id, “We [saw] evidenc e of c hild sex abuse on the ta pes, little girls naked and – a nd differ ent things as such on the tapes.” He testified that the gi rls in the video re cordings we re obviously less than 18 yea rs old. At that point Office r Mar shall contac ted a se nior detec tive, David Quillen, and the two office rs re turned to the defe ndant’s house to se arc h for more e vidence . Offic er Ma rshall testified that the de fenda nt was not under

arr est at this time. Upon ar riving at the defendant’s home, Offic er Ma rshall obtained written consent from the de fendant to searc h his home. He a nd Mr. Quillen obtained 63 videota pes. Upon re view, only one of the ta

pes con t ai n ed i m ages of the victims. This video recor ding, however , was ultimately the only videotape used to c onvict the def endant at trial.
On c ro ss- e xa mina tio n, Of fi c e r M ars ha ll a dmi tte d th at he ma de no vid e o o r a ud io rec ording of the de fendant’s interview, but he noted that Ms. Camp was pre sent for the interview. He te sti fi e d th a t he ne ve r use d re c or din g de vic e s in his inte rv ie ws
. Of fi c e r Mars ha ll m a int a ine d th a t, under K ingsport Poli ce D epartment policy, he was permitted to sear ch a r esidenc e whe n given either oral consent or written consent. He had no explanation a s to w hy he did not obtain written conse nt when he and Ms. Camp first sea rche d the re sidence

. Mr . Q uil le n, a

fo rm e r de te c tiv e wh o wo rk e d in the private se c tor a t th e tim e of

tr ia l, testified t hat he aided Office r Marshall in his second searc h of t he defenda nt’s home on t he af ternoon of Mar ch 21, 2003. He testified that Off icer Mars h al l obtained the written consent to sear ch the-4-

home and that the defe ndant appe are d to give consent knowingly and voluntarily. He testified that of the 63 videotapes collecte d, one displayed a label indicating footage of the victims. He testified that they sea

rche d the home for

approximate ly 30 minutes.
The de fendant te stified that he met with O ffice r Marsha ll voluntarily on March 21, 2003, beca

use Off icer Marsha ll wanted to speak with him about a “pre ssing matter.” He said that Offic er Ma

rshall i nformed him of complaints of hi s abusing T.G. and S.G. When asked whether he consente d to a sea

rch of his home, the defe ndant re plied, “We l l , I fi g ured [ Offic er Ma rshall] wa s going to meet me up there and we’ll talk about it. And they followed me up there .” At anothe r point in his testim ony, the def

endant sa id that he told Office r Mar shall to “come o n u p ” an d that it was “[n] o problem.” H e stated that he allowed O ffice r Mar shall and Ms

. Camp into his hom e and sa id, “Ye ah, just come on in, look around.” He state d that he could not re call si g n i n g a docume nt consenting to a sear ch, but w hen confr onted with the signed form, he a dmitted that the consent form contained his signature. The defenda nt maintained that he never gave oral consent to search be fore signing the form. He f

urther explained that he signed the form without r eading it a nd did not know that he wa s consenting to a sea rch of his home.
Th e de fe ndant te sti fi e d th a t he be c a me up se t w he n O ff ic e r M ars ha ll i nf

orme d h im that he wa s ta

kin g v ide ota

pe s f ro m hi s r e sid e nc e . H e te sti fi e d th a t he tol d Office r M ars ha ll, “Whatever ,” and that he did not believe he could re fuse his taking the videota pes.
At the end of

the hea ring, the trial court found t hat on Marc h 21, 2003, the def endant vo lun tari ly w e nt t o th e Ki ng sp ort Po lic e Dep art men t as a re su lt o f O ff

ic e r M ars ha ll’ s le a vin g h is business car d at his residenc e. The court found that the d ef en d ant was not unde r ar

rest but that Of fi c e r M ars ha ll h a d a dv ise d th e de fe nd a nt o f h is Miranda ri ghts. The court found that the defe ndant drove himself home, separ ately of Offic er Marsha ll, a fter his inter view at t h e p o l i ce statio n. It no te d th a t th e de fe nd a nt t e sti fi e d tha t he told Of fi c e r Mars ha ll an d Ms. Ca mp to co me in the home and look a

round. The trial co u rt fo u nd that Offic er Ma rshall and Ms. Camp found videotapes involving the childre n mentioned by th e d ef endant during his int ervie w at the police station, and that the def

endant responde d, “I guess I’m in tr ouble now.” The trial court f ound that Offic er Ma

rshall and Mr. Q uillen returne d to the home and that the def endant signed a

consent form with an under standing of its consequenc es. It found that 63 videotapes we re taken fr om the defe ndant’s house a s a re sult of this search.

In light of these fi n d i n g s , t h e trial court held that all sea rche s of the def

endant’ s residenc e we re c onstitut ionally valid and denied the defe ndant’s motion to suppress.

Trial
Offic er Ma

rshall’s tr ia l t e s ti mo n y c lo s e lyf

o ll o w e d h is s u p p r e s s io nh e a

rin g testimony. Offic er Ma

rshall testified that, during his interview with the defe ndant, the defenda nt explained that he h a d “ s ta

r te d w a tc h in g [ S. G

. a n d T

. G

. ] ” b e c a u s e th e y li v e d n e ar h is r e s id e n c e
. T he def endant-5-

stated that he “ thought [S.G. and T.G.] w ere underpriv[i]leged kids so [he] wanted to help them out.” The de fendant’s signed statement fr om March 21, 2003, was a dmitted into evidence. The statement ref lected that the defe ndant watched over the vi ctims for approximately a year but that he had not ke pt the girls d uring the se ve n mon ths pr e c e din g his int e rv ie w. Th e de fe nd a nt t oldOf fi c e r M ars ha ll that he took the vi ctims on trips to the m all and the z oo and that he a ttended their sc hool events. He sa id that th e vic tim s’ mothe r w ou ld l e a ve the c hil dr e n with him a nd the n ask fo r m on e y s o s he c ou ld go to dance clubs.

The stateme nt said that the victims on occasion spent the night w ith the defe ndant and slep t i n t wo separ ate be drooms while the def endant slept on his couc h. He maintaine d that he sometimes slept naked and t hat, on one occasion, the victims possibly observed him while sleeping un c ov e re d a ndnake d o n h is c ou c h w ith “ a [n ] e re c tio n f ro m a dr e a m.” Th e de fe nd a nt, thr ou gh his state me nt, sa id that S. G. “ us e[d] to [ sit ] o n [ his ] l ap s ome tim e a ndsh e wo uldhu nc h a nd[h e ] t old her not to do that . . . .”

The state me nt refle cted that he “playe d more with [T.G .] . . . bec ause she was younge r a ndpe op le us e [d ] t o p ic k o n h e r. ” Th e de fe nd a nt b e lie ve d th a t th e vict ims ma y h a ve se e n h im e xp os e d wh e n he fo rg ot t o c los e the bathr oo m do or . T he de fe nd a nt’ s st a te me nt s a id that he wo uld

“ play w re stl e ” wi th the vic tim s a nd“ so me tim e s it c ou ld b e po ssi ble that [hi s] ha ndwo uld a c c ide nta lly sli p u p a ndgo un de r th[ e ir ] n igh tgo wn [s ]. ” He fur th er mention e d th a t th e vic tim s

“ c ou ld h a ve a c c ide nta lly tou c he d [ him ] o n [ his ] p e nis ” wh ile wr e stl ing . T he de fe nd a nt a lso wo uld lie wi th T .G . u nti l sh e went to sle e p, a ndhe no te d th a t it wa s p os sib le that he ma y h a ve do ne so while in his boxer-shorts.

In his statement, the de fendant admitted that he “t[ook] naked videos of older women that are over 18 but [that he has] ne ver t[ake n] any naked pictures or videos of [S.G.] or [ T.G.].” He me nti on e d th a t he ha d ta ke n o ne pic tur e of

T. G. wh e n sh e wa s f

ive or six ye ars olda ndwo uld “always run ar ound in her pa nties.”

Offic er Ma

rshall testified that he and Mr. Quil len found a videotape upon se arc hing the def endant’ s residenc e af

ter obtaining his written consent. The label of the tape ha d abbre viations of the victims’ name s, and it stated “1 s t Au g , 2002,” “mor e Aug 7, 2002,” and “mor e Aug 24, 2002–Aug 25th 2002.” The label also re ad, “[ T.G.] now 7 yr . old.” Off icer Marsha ll testified that he re cognize d the def

endant’ s voice in the backgr ound of the video rec ording. He a lso determined that the video wa s rec orded in the defe ndant’s home, a nd he pre sented photogra phs that he made of the def endant’ s home.
Offic er Ma

rshall test ified that he spoke with the defe ndant af ter re viewing the rec ording and obtaining a w arr ant for his a rre st. He stated that the defe ndant told him he would turn himself in at the police station but that he ne ver a rrived at the station. Mr. Quillen’s testimony also ref lected that of hi s testimony given at the suppression hearing. He testified that he had reviewe d the vi deotape s sever al t imes and identified the ma le voice in the rec ordings as the de fendant’s. Mr. Quillen also verified t h at the video r ecor ding was made in the defe ndant’s home. Mr. Q uillen testified that the def endant’ s nickname w as “D onny” and that-6-

a portion of the vide otape shows T.G . saying, “He y, Donny, look at me.” H e testified t h at he re vie we d othe r vid e ota

pe s sei z e d fr om the de fe nd a nt’ s r e sid e nc e a ndthat th e de fe nd a nt a pp e are d in other re cordings. Mr. Quillen testified that the defendant wa s not arre sted until October 18, 2003, when he was found in Ne w York City.

The State off

ere d as e x h ib it s th ev ic ti ms ’ birth ce rtificate s showing that S.G. was born October 14, 1991, and that T.G. was born on August 19, 1995. The de fendant’s consent to sea rch form and O ffice r Mar shall’s photographs of the defe ndant’s home wer e also enter ed into evidenc e.

The State further admitted a digi tal video di sc, re produce d from the a fore mentioned vid e ota pe , d e pic tin g S. G. a ndT. G. nake d a ndpe rf ormin g s e xu a l a c ts. Th e Sta te po int e d to sp e c if ic instances in the video rec ording that corr esponded with eac h criminal charge. T he video r ecor ding sh ow e d tw o in stanc e s w he re a n a du lt m a le ha ndtou c he d T .G .’ s b utt oc ks , w hic h c or re sp on de d w ith Cou nts thr e e a ndfo ur

of a gg ra vate d s e xu a l batte ry . T he video reco rding the n d isp la ye d s ix occur renc es of the ma le hand touching T.G .’s genital ar ea, w hich cor responde d with C o u nts five through 10 of ra

pe of a child.
The State res t ed , and the de fendant chose not to testify. Based on the e vidence as su mma ri z e d a bo ve , th e jury c on vic te d th e de fe nd a nt a s c ha rg e d o n a ll t e n c ou nts

. Issues on Appe al
The de fendant challenge s his convictions on appea l. First, the defenda nt argue s that the trial court erre d in denying his moti on t o s u ppress the vide otape use d to convict him. The defe ndant maintains that the videotape was discove red a s a re sult of an illegal sea rch a nd seizure

. The de fendant further

challenge s the legal suff

iciency o f t he convic ting evidence . He a rgues that the evidenc e pre sented to t he jury did not support its finding that the m an in the vi deo recording wa s the de fe nd a nt. Th e de fe nd a nt f urthe r a rg ue s tha t the vid e o re c or din g doe s not sup po rt his six c hil d rape convictions bec ause the touching of T.G.’s genital are a did not constitute digital penetration as require d by statute. I. Suppression of Videotape

The de fendant argue s that, despite his signing a consent to se arc h form that led to the dis c ov e ry of

the ill ic it vid e ota

pe a dmi tte d into e vid e nc e , he did no t re a d th e c on se nt f orm a nddid not intelligently gi ve Of

fice r Mar shall consent to sear ch his home

. Upon our revie w, “a trial court’s findings of fac t in a suppression h earing will be upheld unless the evide nce pr eponder ates o the rwise.” S t a t e v. Odom , 928 S.W.2d 18, 23 (Tenn. 1996) . As in all case s on appea l, “[t]he pr e va ili ng pa

rty inthe tr ia l c ou rt

is a ff or de d the ‘s tr on ge st le git imate vie w of the e vid e nc e a nda ll rea sonable a nd legitimate infere nces that may be dra wn from that e vidence .’” See State v . Carter , 16 S.W.3d 762, 765 (Tenn. 2000) (quoting Sta te v . Ke ith , 978 S.W.2d 861, 864 (Tenn. 1998) ). As pa rt of ou r r e vie w, the “ [t ]e sti mon y p re se nte d at tria l may b e c on sid e re d . . . in d e c idi ng the pr op ri e ty of the trial c ourt’s ruling on a motion to s uppress.” Sta te v . P e rry , 1 3 S. W .3 d 7 24 , 7 37 (T e nn . Crim. Ap p. 19 99 ); see also State v. H enning , 975 S.W.2d 290, 299 (Tenn. 1998) . Furthermore , we r eview the trial court’s conclusions of law under a de novo standard without accor ding any pre sumption of-7-

corr ectne ss to those conclusions. See, e .g. , State v. Walton , 41 S.W .3 d 75 , 81 (T e nn . 2 00 1) ; Sta te v. Crutcher , 989 S.W.2d 295, 299 (Tenn. 1999)

.

As a ge nera l rule, a w arr antless sea rch or seizure is presumed unre asonable and any evidenc e discove red subject to suppression. See U. S. Co ns t. ame nd . I V ( “ Th e ri gh t of the pe op le to b e se c ur e in the ir

pe rs on s, ho us e s, pa

pe rs , a nd e ff

e c ts, a ga ins t un re a so na

ble se arc he s a ndse iz ur e s, sh a ll n ot b e vio la te d

. . . .” ); Te nn
. Con st. art

. I, § 7 (“ Th a t th e pe op le sh a ll b e se c ur e in the ir pe rs on s, ho us e s, pa

pe rs a nd po sse ssi on s, fr om u nr e a so na ble se arc he s a ndse iz ur e s .
. . .” ). “ [T ]h e mos t ba sic constitutional rule in this area is that ‘se arc hes conduc ted outside the judicial proc ess, without prior app ro va l by jud ge or

ma gis tr a te , a

re pe r s e un re a so na

ble un de r the Fou rth A me nd me nt – su bje c t on ly to a few specific ally established and w ell-delineated exc eptions.’” Coo lid ge v . Ne w H

am ps hir e , 403 U.S. 443, 454-55, 91 S. Ct. 2022, 2032 (1971) ( quoting Katz v. United States , 389 U.S. 347, 357, 88 S. Ct. 5 07 , 5 14 (1 96 7) ); see also State v. B ridges , 963 S.W.2d 487, 490 (Tenn. 1997) . Thus, a trial court ne cessa

rily indulges the presumption that a war rantless sea

rch or seizure is unreasona

ble, and the bur den is on the State to demonstrate that one of the exce ptions to the wa rra nt require ment applied at the time of

the sea rch or seizure

. It is well settled that a sea rch c onducted pur suan t t o a voluntary c onsent is an exce ption to the warrant r equire ment. State v. Bartram , 925 S.W.2d 227, 230 (Tenn. 1996) (citing Sc hn e c k loth v . B us tam on te , 412 U.S. 21 8 , 9 3 S

. C t

. 2 0 41 (1973)) . A conse nt to searc h must be “‘une quivocal, spec ific, intelligently given, and uncontaminated by dur ess or c oerc ion.’” State v. Cox , 171 S.W.3d 174, 184 (Tenn. 2005) (quoting State v. Simpson , 968 S

. W. 2 d 7 7 6 , 784 (Tenn. 1998)). “ Whethe r an individual voluntarily conse nts t o a sea rch is a que stion of fac t to be dete rm i n ed from the totalit y of the c ircumstance s.” State v. Be rrios , 235 S.W.3d 99, 109 (Tenn. 2007). Beca

use voluntariness of

consent is a que stion of fac t, the trial court’ s finding of voluntariness will be upheld unless the evide nce pr eponder ates other wise. Odom , 928 S.W.2d at 23.

Inthe pr e se nt c a se , th e de fe nd a nt t e sti fi e d that he ini tia lly a llo we d O ff ic e r M ars ha ll and Ms. Camp i n t o h i s h o m e and gave them permission to “look around.” Prior to the second sear ch, which pr oduced the videotape at issue, the defe ndant signed a form entitled “Individual Consent for Sear ch.” The t rial court found that the de fendant understood the form, and the evide nce does not preponde rate against this finding. Mr. Quillen testified that the def endant a ppear ed to give consent knowingly and voluntarily. At trial, Offic er Marshall t estified that he did not use any for ce or coe rcion in obtaining the def endant’ s s i g n ing of the conse nt form. He f urther te stified that he advised the defe ndant of the contents of the consent form prior to the def endant’ s signing it . Under these c ircumstance s, the trial court had a b as i s for c oncluding that the def endant’ s consent wa s vo lun tary or

kn ow ing , a ndwe up ho ld the tr ia l c ou rt ’s de nia l of his mot ionto s up pr e ss. II. Sufficienc

y of the Ev idence
The de fendant argue s that the jury was pr esente d with i n ad eq u ate e vidence identifying him as the man committing sexual offe nses in the vi deo re cording. Further , he ar gues that a lth ou gh the re c or din g sh ow s c on ta c t wi th T. G. ’s ge nit a l are a , the c on ta c t do e s no t a mou nt t o penetr ation as re quired unde r the c hild rape statute. W hen an a ccuse d challenge s the sufficie ncy of the e vid e nc e , a n a

pp e llate c ou rt ’s stand ardof re vie w i s wh e the r, a ft e r c on sid e ri ng the e vid e nc e in-8-

the light most favor able to the prosecution, any rational trier of fact could have f ound the essential e le me nts of the c ri me be yo nd a re a so na ble do ub t. Te nn
. R. Ap p. P. 1 3( e ); J ac k so n v . V irg ini a , 443 U. S. 30 7, 32 4, 99 S. Ct. 27 81 , 2 79 1- 92 (1 97 9) ; Sta te v . W int e rs , 1 37 S.W .3 d 6 41 , 6 54 (T e nn . Crim. App. 2003). The rule a pplies to findings of guilt based u p o n d irec t evidence , circ umstantial evidenc e, or a

combination of direc t and circ umstantial evidence

. Wi nte rs , 137 S.W.3d at 654.
In dete rmining the sufficienc y of the e vidence , this court should neither re -we igh the ev i d en ce nor substitute its i nfer ence s for those dr awn by the trier of f act. Id. a t 6 5 5

. Q u e s ti o ns c on c e rn ing the c re dib ili ty o f the wi tne sse s, the we igh t a ndva lue of the e vid e nce, as we ll a s a ll fac tual issues raised by the evidence are r esolved by the trie r of f act. State v. Cabbage , 571 S.W.2d 83 2, 83 5 ( Te nn . 1 97 8) . Si gn if ic a ntl y, thi s c ou rt

mus t a ff or d th e Sta te of

Te nn e sse e the stro ng e st le git imate vie w o f the e vid e nc e c on ta ine d in the re c or d a s w e ll a s a ll r e a so na ble a ndle git imate infere nces w hich may be dr awn f rom the evide nce. Id.

a. Id e nti ty
In the defenda nt’s first sufficie ncy ar gument, he cha llenges only his identity as the perpe trator of

those offe nses. The de fendant argue s t h at t he video r ecor ding never showed the defe ndant’s fa ce and that, beca use no eyewitness testimony identified t he def endant a s the offe nder, the jury w a s n ot p ro vid e d w ithsu ff ic ie nt e vid e nc e to s up po rt his c on vic tio ns . W e dis a gr e e . Bo th Offic er Ma

rshall and Mr. Quillen identified t he voice in the video re cording a s the defe ndant’s voice

. Further, both men had seen the defe ndant’s home and testified that the video re cording took plac e in his home. The video re cording shows T.G. r efe r to the per son m ak i n g t h e video r ecor ding as “Donny,” and Mr. Quillen testified that “Donny” was the defe ndant’s nickname

. T h e d ef endant a dmi tte d, thr ou gh his state me nt to Of fi c e r Ma rs ha ll, that he ha d w a tc he d o ve r the girls i de nti fi e d in the videotape , although he denie d video re cording them naked. The videotape w as fo und in the defe ndant’s re sidence , and Mr. Quillen testified that o t her ta pes found in the home show ed the de fe nd a nt’ s fa c e
. La stl y, the de fe nd a nt fl e d to Ne w Yo rk City to a vo id arr e st for appro xim a te ly seven months. Upon our r ev i ew , we note that the evide nce ove rwhe lmingly proved that the de fe nd a nt c re a te d a ndpa

rt ic ipate d inthe vid e o re c or din g, a ndwe wi ll n ot d istur b th e jury’ s v e rd ic ts.
b. Sexual Pe netration
Th e de fe nd a nt n e xt a

rg ue s th a t “ whi le th e vid e o s ho ws so me on e tou c h th e private parts of the juvenile victims it does not show suffic ient evidenc e by which a jury could find digital penetr ation as allege d in the indictments.” Rape of a child is “the unlawful s exual pe netration of a victim by the defe ndant” whe n the victim is less than 13 years of age. T .C.A. § 39-13-522 (1997)

. Code section 39-13- 501 define s “sexua l p en et ra t i o n ” for the purposes of

this case a s “any . . . intrusion, however

slight, of any part o f a p er s o n ’s b o dy or of a ny object into the genital . . . openings of the victim’s .

. . body.” Id. § 39-13-501( 7). Our supr eme c ourt has expla ined that, when the victim is a fema le, “[i]t is not nece ssary that the vagina be enter ed or that the hymen be r uptured; the entering of the vulva or lab i a i s sufficie nt.” State v. Bowles , 52 S.W.3d 69, 74 (Tenn. 2001) (quoting Ha rt v . S tat e , 21 S.W.3d 901, 905 (Tenn. 2000) ).-9- The video- rec orded e vidence clea rly shows six instanc es of rape of a child. On ea ch oc c a sio n, the de fe nd a nt us e s his fi ng e rs to e nte r T. G. ’s vu lva a ndthe n s pr e a ds his fi ng e rs to e xp os e the inside of her

vaginal ar ea to the vide o came ra. Such an intrusion is cle arly pe netration under our statutory scheme , and we will not dis turb the jury’s ve rdicts of ra pe of a child.
II I. Se nte nc ing Er ro rs
La stl y, we mus t no te a n e rr or in s ome of

the jud gme nts of c on vic tio n. Th e jud gme nts corr ectly re flec t two c oncurr ent eight-yea r sentenc es for

the aggr avate d sexual battery convic tions running consec utively to two concur rent eight-yea

r sentenc es for the sexual exploitation of a minor convictions for Counts one through four. Thus, the def endant r ece ived an e ffe ctive 16-ye ar se ntence fo r C ou nts on e thr ou gh fo ur . T he jud gme nt f or Cou nt fi ve , c hil d ra

pe , or de rs a 25 -y e ar se nte nc e to run conse cutively to Counts one thr ough four. The judgment for Count six, child rape, or ders a 25- year sentenc e to run c onsecutively t o C o u n ts one through five. A ccor ding to the judgments, the defe ndant re ceive d an ef

fec tive 66-yea

r sentenc e for

Counts one through six.
Th e jud gme nt fo r Cou nt se ve n o rd e rs a 25 -y e ar s e nte nc e to b e se rv e d c on c ur re ntl y with Counts one through six, ma intaining the sentenc e at 66 e ffe ctive yea rs. The judgment for

Count e igh t, how e ve r, c on ta ins a fa c ia l e rr or . T he jud gme nt o rd e rs a 25 -y e ar s e nte nc e to r

un c on c ur re ntl y with Count seven but consec utively with Count s one through six. As noted ab o v e, C o u n t seven a lr e a dy ru ns c on c ur

re ntl y w ithCou nts on e thr ou gh six ; th e refore, Count e igh t c a nn ot r

un bo th c on se c uti ve ly andc on c ur re ntl y to the sa me se nte nc e
. Th e jud gme nts fo r C ou nts nin e a nd10 a lso order that they run c oncurr ently to Count seven but consec utively to Count s one through six. As written, the judgments for Counts eights t hrough 10 ar e incor rec t. Howeve r, we no te that th e se nte nc ing he ari ng tr a ns c ri pt re fl e c ts that the tr ia l cou rt int e nd e d for the de fe nd a nt t o serve an ef

fec tive 66-yea

r sentence. When there is a conflict betwee n the transc ript and the judgment form, the transcript controls. See, e .g. , Sta te v . M oo re , 814 S.W.2d 381, 383 (T en n
. C ri m
. App. 19 91 ); Sta te v . J

im my Le e Cul lop , J

r. , N o. E2 00 0- 00 09 5- CCA -R 3- CD , s lip op . at 14 (T e nn . Crim. App., Knoxville, Apr. 17, 2001) ( rema nding for cor rec tion of sentence alignment in judgment form to conform to alignment re flec ted in transcri pt). The judgments may be corr ecte d to order the intended 66-ye ar se ntence by removing the orde r that the sentences for C ounts eight through 10 be serve d consec utively to Counts one through six. In li ght of this analysis, we re mand to the trial court for c orre ction of the judgments for Counts eight through 10 in ac cordance w ith this opinion.
Conclusion
We r emand to the tria l c ourt to strike all order s for c onsecutive se ntencing fr om the judgments for Counts eight through 10. In all other a spects, the judgments of t h e trial court are aff irmed.

___________________________________ JAMES CURWOOD WI TT, JR., JUDGE