It i s t he p o l i cy o f t his co urt t o refer t o m i no r victi m s o f sexu al crim es b y t he i r i nit i als. 1 

### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A pr il 14, 200 9 S es sio n

STATE OF TENNESS EE v . MICHAE L VINCENT RICCO

Direc t Appeal from the Circ uit Court for Henderson Coun ty

No. 07013-2 Donald Allen, Ju dge

No. W2008-00756-C CA-R 3-CD - F iled Jul y 23, 2009

The de fenda

nt was convic ted by

jury of ra pe of a child and ag g ravated sexual battery

. He was
s u b s e qu e n t l y s e n t e n c e d

t o 1 8 ye ar s f

o r r a p e o f a c h i l d an d 1 0 ye ar s f

o r a g g r a v a t e d

s e x u a l b a t t e r

y. Hi s se nte nc e s w e re or de re d to ru n c on se c uti ve ly

fo r a tot a l e ff e c tiv e se nte nc e of 28 y e ars . O n a pp e a l, the de fe nd ant p re se nts the fo llo wi ngiss ue s f or re vie w: (1 ) whe the r t

he e vid e nc e was su ff

ic ie nt t o
su sta in h is c on vic tio ns , a

nd (2 ) w he the r the tr ia l c ourt e rr e d in o rd e ri ngthe de fe nd ant t o s e rv e his

se nte nc e s c on se c uti ve ly

rathe r t ha n c on c ur re ntl y . U po n o ur re vie w o f t

he re c or d a

nd the pa rt ie s’ br ie fs , w e a ff

ir m th e jud g me nts of

the tr ia l c ourt

. Tenn. R. App . P . 3 Appeal as of Right; Judgme nts of

the Circ uit Court Aff

irm ed

J.C. M C L IN , J ., delivere d the opinion of the court, in which J OHN E VE R E TT W I L L I AMS and A L AN E. G L EN N , J J ., joined.

Hewitt C hatman, Assis tant Public Def ender
, J ackson, Te nnessee , for the a ppellant, Michae l Vincent Ricco.

Rob e rt E. Coope r, Jr., Attor ne y Ge ne ra l and

Re po rt e r; J. Ros s D y e r, As sis tant A tto rn e y Ge ne ra l; Jer ry Woo da ll, Di str ic t Attor ne y Ge ne ra l; a

nd B ill R. M art in, As sis tant D ist ri c t A tto rn e y

Ge ne ra l, for the a ppellee, State of

Tenne ssee.

OP IN ION

BACK GR OUND

The de fenda

nt was cha

rg ed with s ix counts of ra pe of a child. The followingrele vant evidenc e wa s prese nted at the de fenda nt’s trial. K.T., the minor victim in thi s case , testi fi ed that 1 she spent the nig ht with her g randmother on sever al occ asions. Sometimes, the defenda nt, who was-2-

he r g ra ndmot he r’ s b oy fr ie nd , c a me ov e r and sp e nt the nig ht. Whe n th e de fe nd ant s pe nt t he nig ht, K.T., the defenda

nt, and her

g randmother

would sleep tog ether

in the only

bed in her

g randmother ’s

a pa rtme nt. K. T. re c a lle d that on e nig ht, wh ile in t he be d, the de fe nd ant p ut h is h and s “ be hin d my panties” a

nd place d his finge r “in my butt.” Her

g randmother

awoke from slee p, saw what was happeningand told the defe ndant to stop. K.T. sa id that at a diffe rent time she a nd her g randmother stay ed at the de fenda

nt’s house. While her gr andmother was taking a showe r, the de fenda nt stuck his p ri vate p art

in h e r p ri vate pa

rt and in h e r m ou th. K. T. sa id t hat th e de fe nd ant e

ja c ulate d b oth times. K.T. reme mbere d that she was in the defe ndant’s daug hter’s room whe n t h e i ncident happene d. K.T. also indicate d t h at s h e was sexually abused on se vera l succe ssive day s while she and her g randmother wer e staying at the defe ndant’s house. She w as unable to remembe r, howe ver, wh e the r s he sta

y e d at th e de fe nd ant’ s h ou se on e nig ht o r m or e tha n o ne nig ht.

On cr oss-examination, K.T. stated that she did not know how to c ount on a clock or tell time, but she t h o u gh t h er grandmother stay ed in the showe r one or two hours. She also said that the defe ndant had ha

ndcuff ed her to his daug hter’s be d and tape d her mouth with tape. She indicated that sh e y e lle d a

nd he r g ra ndmot he r w a lke d in

fr om t he sh ow e r and saw the se xua l a ssa ult in prog ress. She fur

ther indicated that she a

nd her g randmother

stay ed at the de fe n d an t ’s hous e for

se ve n s tr a ig ht d ay s. She a lso sa id that sh e wa s g e tti ng c on fu se d. On re -d ir e c t e xami natio n, K. T. sa id that all her gr andmother saw was the i ncident when the defendant had his hands i n her panties. K.T.

reme mbere d that while she wa s at the defendant’s house she heard fireworks a nd sug g ested that the incident occurre d afte r Jul y 4th beca use the pe ople wer e setting off “ leftover firew orks” be fore school started. She a lso indicated that she did not know how long one hour or two hours wa s. On

re -c ro ss e xami natio n, K. T. sa id t hat sh e tho ug ht s he and he r g ra nd mot he r vis ite d the de fe nd ant i n the fa ll. She said she thought that Apr il was in the fall. Howe ver, she later said it was hot outside and sunny

and she did not know what month she went over to the de fenda nt’s house.

L isa Pierce y

testified that she wa s a phy si ci an p rac ticing pe diatric medic ine and a lso the medical dire ctor of the Madison County Child Advocacy

Center. Dr . Pierce y

rec alled that on September 25, 2006, she conducte d a phy sical examination of K.T. The phy sical examination was perf ormed a s a re sult of alleg ations of sexual abuse. As pa rt of her examination, Dr. Piercey explained that she took K.T.’s history wher ein she was told by K.T. and K.T.’s mother that K.T. had been se x u all y

abused by

the def endant. Dr . Pierce y

stated that her

phy sical examination revea led that K.T. had a

n “abnor mal hy men.” Dr. Pierce y descr ibed t he hy men “like the base of a

clock, a nd any thing that is . .

. b el o w t h e 3:00 and 9:00 posi tions is considered abnor mal meaningy ou’re probably not born that way .” Dr. Pierc ey testified that K.T. “ had a c omplete abse nce of the hy men from the 3: 00 to 5:00 posit ion. At the 7:00 positi on she had a very deep notc h which mea

ns the hy me n w a s tr ans e c te d a lmo st t o th e ba se .” Dr . Pi e rc e y sa id t hat th e a bn or ma l and inc omp le te state of K.T’ s hy

men s ignif

ied “clear evidenc e of va g inal penetr ation.” Dr . Pierce y stated that base d on her e x amination she conclude d that K.T. had be en sexually abused. D r. Pierce y

noted that K.T. wa s five-year s-old at the time of the phy sical examination. Dr. Pierce y acknowledg ed that she w as unable to dete rmine whe n the pene tration occ urre d. Dr. Pierce y also acknow ledg ed that K.T’s injury looked like healed t rauma , and therefor e, there was no way to date the injury . Dr. Pierc ey said that-3-

it was hig hly

unlikely that a pre pubesce nt gir l wo uld cause injury to her own hy

men bec ause “ the hy men is ext reme ly

sensitive and painf

ul tissue.”

Anthony Woodfin testified that he was an investig ator with the He nderson County Sheriff’ s Depa rtment. I nvestig ator Woodfin rec alled that he be came involved in the i n v es t i gat i on of the de fe nd ant i n D e c e mbe r o f 20 06. Inv e sti g a tor Woo df in n ote d th a t he ob ta ine d p ro ba ble c a us e to

arr est the def

endant afte r he rec eived information from a transcr ipt of an interview with K .T. and Dr

. Pierce y ’s medica l examination report. I nvestig ator Woodfin testified that t h e i nformation he

rec eived indicated that one incident of sexual abuse occ urre d at the g randmother ’s apa rtment, and other in ci d en t s occur

red at the defe ndant’s house. Investig ator Woodfin said he talke d to the defe ndant about the a lleg ations of sexual abuse dur i n g h i s investigation and the def endant de nied the a lle g a tio ns

. The followingwitnesses we re c alled by the def en s e. M ichelle Va ldez testified that she worke d for the D epar

tment of Children’s Service s (DCS). She rec alled that a fore nsic interview of K.T. wa s conducte d on Aug ust 14, 2006. Ms. Valdez said that, during the fore nsic interview, K .T. disclosed that the def

endant touche d her “ kitty cat a nd her butt with his fing er a nd his tongue .”

Alita Tucke r testified that in August she took her da ug hter, K.T., to the doctor for a routine phy sical examination in prepar ation for the upc oming sc hool y ear . At this ti me, K.T. told the doctor that she had be en molested. As a result of this reve lation, DCS was notified and K.T. wa s ref err ed to Dr . L isa Pie rc e y

. Ms. Tu c ke r ac kn ow le dg e d that K.T . wou ld spe nd the we e ke nd and so me nig hts with her g randmother

. She also noted that on occ asion she would bringK.T. to her g randmother ’s when the de fenda

nt was pre sent at the a

partment. Ms. Tucke r said that K.T. did not talk to her a bout “what happene d” bec ause he r daug hter does not ope n up to he r. Ms. Tucker said she wa s awa

re of an incident involving K.T., who wa s four y ear s old at the time, an d an eig ht-y ear -old boy . She

e xpla ine d th a t a

bo ut t wo y e ars a g o s he wa lke d in on the bo y wi th K .T ., bu t th e c hil dr e n w e re fu lly clothed and the re w as no evide nce that the boy had “me ssed with [K.T.] .”

Cassandra

Ricco, the e x -wife of the de fenda nt, testified as to the lay out of the def endant’ s ho us e . Sh e sa id t

hat th e ho us e on ly

ha d o ne bathr oo m. S he no te d th a t th e de fe nd ant h a d a sma ll

c a mpi ng tr a ile r l oc a te d e a st o f h is h ou se . Sh e sa id t hat th e tr a ile r s e rv e d a s th e de fe nd ant’ s r a dio room wher e he had CB r adios and a television. She acknow ledg ed a pic ture of the defe ndant’s daug hter’s be droom which showe d steps g oing up to the attic. She noted that there was a half-be d with no posts in t he bedr oom. She rec alled that the de fenda nt had pur ch as ed a cell phone batter y from Walmart on April 9, 2006.

K.T.’s g randmother , Dawn A lexander, testified that she be came acqua inted with the defe ndant throug h her work. She started dating the defe ndant on Marc h 6, 2006, though she knew him fo r a c ou ple of y e ars pr ior

to datin g

. She re c a lle d th a t he r d a ug hte r a nd g ra nd da ug hte r w e re a ll living with her

at the time in a trailer, but they moved out when she reloc ated to an a partment a

round the end of J une. Ms. A lexander acknow ledg ed that the defe ndant came to visit her oc casiona lly at he r a pa rtme nt.-4-

Ac c or din g to M s. Al e xan de r, the on ly tim e K. T. a c c omp anie d h e r t o th e de fe nd ant’ s h ou se
was one wee kend in April of 2006. She r eca lled that during their visit, the defe ndant spent a lot of time in his camper tra iler whe re he kept his C.B. radio. She also rec alled that she saw K.T. in the sp are be dr oo m w a tc hin g TVand pla y ing . She a c kn ow le dg e d th a t sh e too k a sh ow e r d ur ingthe vis it. Howeve r, she sa id that she was in the s hower for only fiftee n minutes, and as fa r as she knew, the de fe nd ant w a s st ill in h is c a mpe r t ra ile r. Ms. Al e xan de r a lso no te d tha t the bathr oo m in the ho us e was located next to t he outside porc h. She said that someone would have to cr oss the porch to g et ins ide the ho us e and

sh e did no t he ar a

nyon e c ro ss t

he po rc h w hil e sh e wa s in t he bathr oo m. M s. Alexander a lso testified that she did not hear K.T. scr eam or

say any thing whi l e s h e wa s in the sh ow e r. Ms. Al e xan de r s a id t hat sh e saw K .T . in

the be dr oo m w a tc hin g c art oo ns wh e n she c a me
ou t of the sh ow e r. She sa id t

hat sh e did

no t se e the de fe nd ant s e xua lly ass aul t K.T . at a ny tim e during the wee kend visit. She insisted that the only direc t contact the de fenda nt made with K.T wa s when he walked up to he r and kissed he r on t he top of her head. Ms. Ale x ander said that except for th e 1 5 minutes she spent in the shower , the only other time K.T. c ould have be en alone with the defe ndant was w hen she la id down on the couch Fr iday night, which was the night they arr ived at the def endant’ s house. She said that she he ard no noises w hile ly ing on the couch. Ms. Alexander also said that s he, K.T., and the defenda nt went to the Walmart in J ackson to purc hase a cell phone battery and ca se.

Ms. Alexander testified that one night while she was at he r apar tment, K .T. was droppe d off by her mother . Ms. Alexander rec alled that on this occa sion the defe ndant spent the nig ht. She

rec alled that they all went to sle ep in he r king- siz ed water bed. She slept in the middle of the be d with the defe ndant on one side of the bed and K.T. on the other. She sa id she was pa rtially aslee p but woke up whe n she felt movement on the bed. A t this t ime, she saw the defe ndant with his hands down the bac k of K.T’ s underwe ar. She asked the defe ndant what he was doingand he told her that he mig ht have dozed off

and thoug ht it wa s h er

. M s . Alexander said that she saw the de fenda nt

re mov e his ha

nd im me diate ly

fr om K .T .’ s und e rw e ar. Ms. Al e xan de r s a id t hat th is w a s th e on ly time she saw the defe ndant touching her g randda ug hter inappropriately

. She emphasized that she would not have r emained in a relationship with the defe ndant if she thought he was molesting her g ra nd da ughte r. She de nie d w alk in g i nto a ro om at th e de fe nd ant’ s h ou se and ob se rv inghim molesting K.T.

Ms. Alexander testified that sometime around Septe mber 25th, she he ard that char g es we re filed ac cusing the def

endant o f m o l esting her g randda ug hter. She a

nd her da ug hter did not speak to eac h other for

some time as she did not believe he r g randda ug hter. Ms. Alexander sa id that she stay ed in a r elationship with the d ef en dant up until the time he was a rre sted in Dec ember . She fu rt he r a sse rt e d th a t sh e lov e d th e de fe nd ant a nd that he r d a

ug hte r d id n ot l ike the de fe nd ant.

On cr oss-ex am i n at i o n , M s

. Al ex an d er re i t er at edt h at t h e d ef

en d an td i d

n o t have much c ontact with K.T. When asked, howe ver, Ms. Alexander indi cate d that the wee kend vis it to the defe ndant’s house occ urre d in “J un e o f 2006.” She also said that the inc ident that occur red at her a

partment

occur red a fter the wee kend visit to the defenda nt’s house. Ms. Alexander noted that the defe ndant’s-5-

excuse as to why he was inappropriately touching K.T’s bottom did not make sense, but said that she d i d n o tt h i n k ab o u th i s ex cu s e u n t i l t h e n ex tm o rn i n g.

The de fenda

nt testified that he beg an datingK.T.’s g randmother , Dawn A lexander, in Marc h of 2006. When they

first started dating, Da

wn lived in a tra iler with her da ug hter a nd g randda

ug hter. Th e de fe nd ant s a id t

hat he did no t ge t alo ng wi th Ali ta Tu c ke r, Da wn ’s da ug hte r, a s sh e wo uld

a sk him fo r m on e y

e ve ry tim e he wo uld

vis it D awn . A c c or din g to t he de fe nd ant, a ft e r D awn

mov e d to he r a pa rtme nt, he wo uld

so me tim e s st ay ov e rn ig ht. Ho we ve r, he on ly sta y e d o ve rn ig ht o nc e wh ile K.T. wa s prese nt. He re called that the overnig ht stay occur red in July

or August of 2006.

The de fenda

nt testified t hat Dawn would stay at hi s place ever y other weeke nd or every

third

wee kend. One we ek en d i n April, Daw n broug ht K.T. with her to the de fenda nt’s house. The defe ndant re called that during the weekend, all three of the m went to J ackson, Te nnessee to shop and pick up a f

ew thing s. The def

endant a dmitted that this wee kend wa s the “only time Iever took Dawn and t h e gra n d daug hter a

ny wher e.” T he def

endant r eca lled that he purc hased a cell phone battery during the trip. The defe ndant said that during this weeke nd visit he spent a consider able amount of time in his campe r t railer working with his radio equipment. He said that Dawn a nd K.T. stay ed Saturday and Sunday but only spent one night at his pla ce during the wee kend visit. The def endant said that he c ould not remember when Da wn took a showe r bec ause he spent a l o t o f t i me in the campe r trailer

.
The de fenda

nt said he owned a pair of handcuffs, but they wer e kept hidden in his bedroom

and K. T. ne ve r saw the m. Th e de fe nd ant de sc ri be d the be d in the e xtra be dr oo m a s a ha lf -b e d w ith bo x spr ing s and

a mattr e ss. Th e de fe nd ant s a id t hat th e be d h a d no po sts wh e re an in div idu a l c ou ld attach ha ndcuff s. The def endant asserted that he made no sexual advance s towards K.T. whatsoeve r.

On cr oss-examination, the defenda nt denied any

sexual int ent or wr o n g doing on his pa rt reg ardingthe incident whe re his hand w ent inside K.T.’s pa nties. The def

endant e x plained that he fell a s le e p w a tc h in g T V in th e b e dr o o m. H e w a s p o s it io n e d b e tw e e nD aw nan d

K

. T

. o nth e b e d. He wa s awakened by

Dawn, a nd K.T. “w as on this side of me and I just had my h an d just being supported by

the elastic.” The defe ndant asser ted that his ha

nd place ment “wa s an ac cident.” T he defe ndant re iterate d that Dawn a nd K.T. only

spent Saturday

night at his house during the wee kend vis it.

K.T. wa s rec alled to testify as a r ebuttal witness. She testifi ed t h at wh ile she wa s at the defe ndant’s house he did someth i n g t o h er while her g randmother was in the showe r. Something

e lse ha pp e ne d to he r w hil e he r g ra ndmot he r w a s in

the be d in

ano the r r oo m.

At the conclusion of the trial, the jury found the de fenda

nt guilty of ra pe of a child as cha

rg ed in count one; not g uilty

on counts two and three, and guilty of ag g ravated sexual battery as a le sserincluded off

ense in count four. The jury was una ble to rea ch a una

nimous verdict as to counts five and six , and ther efor e, the tria l judge decla red a mi s trial on those counts. The de fenda nt was subsequently

order ed to serve consec utive sentenc es of 18 y ear s for the rape of a c hild conviction,-6-

and 10 y ear s for the ag g ravated sexual battery conviction for a total e ffe ctive sentenc e of 28 y ear s incar cer ation.

AN AL YSI S I. Su ff iciency of the Evid ence
On appe al, the def

endant f irst challeng es the suff

iciency of the e vidence , arguing that there was no proof

prese nted at trial to support his convictions. I n m aking his argument, the def endant

as s er t s t h at t h er e w as n o p ro o f p re s en t edat t ri al t h at K. T

. v i s i t edh i s h o m e du ri n g t h e “ J u l y t h ro u gh Aug ust” time frame alleg ed in the indictment. He points to inconsistencies in K.T’ s testimony and

asser ts that it i s clea

r fr om all the evidenc e “that he had neither the opportunity , time nor the mea ns to commit the offense s for whic h he wa s convicted.”

We b e g in o ur

re vie w b y

se tti ngfo rt

h th e we ll-es tab li sh ed ru le tha t on c e a jur y fi nd s a defe ndant g uilty , his or her pr esumption of innocenc e is r emoved a nd repla ced w ith a presumption of g uilt. State v. Ev ans , 838 S.W .2d 185, 191 (Tenn. 1992)

. There fore , on appea l, the convicted defe ndant has the bur den of de monstrating to this court why the evidence will not support the jury ’s verdic t. Sta te v . Ca rru the rs , 3 5 S. W.3 d 5 16 , 5 57 -5 8 ( Te nn . 2 00 0) ; Sta te v . Tu gg le
, 639 S.W .2d 913, 91 4 ( Te nn

. 19 82 ). To me e t thi s burd e n, the de fe nd ant mus t e sta bli sh that no “ ra

tio na l tr ie r of

fa c t”

c ou ld h a ve fo un d th e e sse nti a l e le me nts of the c ri me be y on d a

re a so na ble do ub t. Jack

son v. Vi rg ini a , 4 43 U. S. 3 07 , 3 19 (1 97 9) ; State v. Ev ans , 1 08 S.W. 3d 23 1, 23 6 ( Te nn . 2 00 3) ; see Tenn. R. App. P. 13(e). In contra st, the jury ’s ver dict approve d by the trial j u d ge ac cr ed i ts the state’s witnesses and resolves a ll conflicts in favor of the state. Sta te v . H

arris , 839 S.W .2d 54, 75 (Tenn. 19 92 ). Th e state is e nti tle d to t he st ron g e st l e g iti mate vie w o f t he e vid e nc e and

a ll r e a so na

ble infere nces w hich may

be dra wn fro m t h at ev i d ence. Car ru the rs , 35 S.W .3d at 558. Questions

conce rning the cr edibility of the witnesse s, conflicts in trial testimony , the weig ht and value to be g iven the evide nce, a

nd all fac tual issues raised by the evidenc e ar e re solved by the trier of

fac t and not this court. State v. Bland
, 9 5 8 S

. W

. 2 d 6 5 1 , 6 5 9 (T en n

. 1 9 9 7 ). W e d o n o tat t em p tt o re -w ei gh

or re -eva luate the e vidence

. State v. Rice , 184 S.W .3d 646, 662 (Tenn. 2006). L ikewise, we do not

re pla c e the jur

y ’s inf e re nc e s d ra wn fr om t he c ir c ums tanti a l e vid e nc e wi th o ur ow n in fe re nc e s. Sta te

v . R e id , 91 S.W .3d 247, 277 (Tenn. 2002)

. Rape of a child is define d as t he “unlawful sex ual penetration of a victim by the def endant or the de fenda

nt by a victim, if the victim is more than three (3) y ear s of ag e but less than thirtee n (13) y ear s of ag e.” T enn. Code Ann. § 39- 13-522(a ). Sexual penetration is define d as “se x ual intercour se, cunniling us, fellatio, ana l inter course , or any other intrusion, howeve r slight, of any part of a pe rs on ’s bo dy

or of any ob je c t in to t he g e nit a l or

ana l op e nin g s o f t

he vic tim ’s , the de fe nd ant’ s, or any other pe rson’s body , but emission of semen is not require d.” Id . § 39-13-501( 7).

Ag g ravated sexual battery is the “unlawf ul se x ual contac t w ith a victim by the def endant or the de fe nd ant b y

a vic tima c c omp anie d b y

any of the fo llo wi ngc ir c ums tanc e s: [t]h e vic timis l e ss than t hirteen (13) y ear s of ag e.” Id

. § 39-13-504( a)( 4). “Sexual c ontact” is “ the intentional touching of the victim’s, the de fenda nt’s, or any

other pe rson’s intimate par ts, . .

. if that intentional touching-7-

can be rea sonably

construed a s being for the purp o s e o f sex ual ar ousal or g ratification.” Id . § 39-13-501( 6). Additionally
, “ ‘[ i] ntimate parts’ includes the prim ary g enital ar ea, g roin, inner thig h, buttock or bre ast of a huma n being .” Id . at (2).

Af te r c on sid e ri ngthe e vid e nc e in t he li ght mo st fa

vo ra ble to t he state , w e c on c lud e that a rational trier

of fa ct could have found the de fenda nt guilty of the ra pe of a child and ag g ravated sexual battery . At trial, K.T. testified that she s p en t t h e night with her g randmother , Dawn Alexander, a

nd the def

endant. T h ey

all slept toge ther in the only bed in her

g randmother ’s apar tment. On this particular oc casion, while in bed, the defendant put his hands i n K.T.’s pa nties and touche d her buttocks. K.T .’s g randmother , Dawn A lexander, cor roborated K.T.’s te stimony by stating that she awoke to find the defendant’s hand in K.T’s panties. K.T . further testified that she and her g randmother

stay ed at the defendant’s house. Whil e her g randmother was takinga showe r, the def endant stuck his private par t in her private part and in her mouth. K.T. sa id that the defe ndant ejac ulated both times. K.T. remembere d that she was in the defe ndant’s daug hter’s r oom when the incident happe ned. She also indicated that this incident occur red a fter Jul y 4 t h but before school started

. K. T ’s t es t i m o n y

wa s co rr o b o ra t edb y

Dr

. P i er ce y ’s t es t i m o n y

wh o fo u n d

ev i d en ce o f v aginal penetr ation. Her e, the de fenda nt’s sufficie ncy ar gu ment essentially amounts to a cha lleng e to the jury ’s cr edibility

deter minations. As previously noted, the we ight an d cre dibilit y of a w itness’s testimony and the reconc iliation of conflicts in the testimony are matters entr

usted exclusively

to the trier of fac t. I n the instant case , the jury , as wa s their pre rog ative, re solved the conf licting testimony in favor of

the state a

nd found that the e vidence prese nted at trial supporte d convictions for the rape of a c hil d a nd a g g ra vate d s e xua l ba

tte ry . Be c a

us e the e vid e nc e wa s suf

fi c ie nt fo r a ratio na l jury

to fi nd the de fe nd ant guil ty

be y on d a re a so na ble do ub t, w e a ff

ir m th e jud g me nts

.

II. Co nse c ut ive Se nt e nc ing

The de fenda

nt next challeng es the trial c ourt’s deci s i o n to order c onsecutive se ntencing purs ua nt t o T e nn e sse e Cod e Anno tate d s e c tio n 4 0- 35 -1 15 (b )( 5) . Sp e c if ic a l l y , t h e d e fe nd ant s ub mit s that th e re is a

la c k o f d e fi nit ive pr oo f re g ard ingthe vic tim ’s ph y sic a l and me nta l da

ma g e , th e tim e span of the un d et ected sexual activity , the re lationship between the defe ndant and the vic tim, and the n a tu r e an d s c o p e o f th e s e xu a l a c ts b e y o n d

th a t i n h e r e n t i nth e o f

f e n s e s f o r w h ic h h e w as
c on vic te d. Th e de fe nd ant f ur the r s ub mit s th a t hi s a g g re g a te se nte nc e do e s n ot r e a so na bly re late to the seve rity

of the off enses f or which he was c onvicted.

When a def

endant c halleng es the leng th and manner of ser vice o f a sente nce, this cour t conducts a de novo revie w of the re cord w ith a presumption that the trial cour t’s deter minations are

corr ect. Te nn. Code Ann. § 40-35- 401(d). This presumption of corr ectne ss is conditioned upon the

a ff ir mativ e sh ow ing in th e re c or d th a t th e tr ia l c ourt c on sid e re d th e se nte nc ingpr inc ipl e s and a ll rele vant facts and circumstance s. State v. Pe ttus , 986 S.W .2d 540, 543-44 (Te nn. 1999). Howe ver, if the re cord shows that the trial court f ailed to consider

the sentenc ing pr incipl es an d all rele vant fac ts and circ umstances, then a re v iew of the challeng ed sente nce is pure ly de novo without the presumption of cor

rec tness. State v. Ashby , 823 S.W. 2d 16 6, 16 9 (T e nn . 199 1) . O n a pp e a l, t he pa rt y challeng ing the sentenc e imposed by the trial cour

t has the burden of establishing that the sentenc ing-8-

d e c is io nw a s im

p r o p e r

. T e n n

. Co d e A n n

. § 4 0

- 3 5

- 4 0 1 , Se n te n c in g Commis s io nCo mm e n ts

. We will uphold the sentence imposed by the trial court if: (1) the sentenc e complies with our sentenc ing statutes, and (2) the trial cour t’s finding s are adequately supported by

the re cord. Se e Sta te v . A rn e tt , 49 S.W. 3d

25 0, 25 7 ( Te nn . 2 00 1) ; see also Tenn. Code Ann. § 40- 35-210.

I n the instant case , the trial cour t ordere d the sentenc es to run conse cutively under Te nnessee Code Annotated se ction 40-35-115( b)(5) . That statute allows c onsecutive se ntencing i f the c ourt fi n d s , b y a p re p o n d er an ce o f t h e e v i d en ce , t h e f o l l o wi n g:

The de fenda

nt is convicted of two ( 2) or more statutory offe nses i n v o l ving se x ual abuse of a minor with consideration of the ag g ravating c ircumstance s arising from the re l at i o n s h i p betwee n the def endant a nd victim or victims, the tim e span of defe ndant’s undete cted s ex u al ac t ivity , the nature and scope of the sexual acts a nd th e e xte n t o f

th e r e s id u a l, p h y s ic a l a

n d me n ta l d a ma g e to th e v ic ti m o r v ic ti ms [. ]

I n order ing c onsecutive se ntencing , the trial cour t found:

Th e Court

is c on sid e ri ngthe a g g ra vate d c ir c ums tances that a ro se fr om t

his relationship. Now, this was a situation whe re this y oung child, five y ear old child, had bee n entrusted with he r g randmother which happene d to be the g irlfriend of Mr. Ricco and dur ing the time that the ch i l d wa s entrusted with the gr andmother, Mr

. Ricco took adva

ntag e of he r. I

believe the proof w as pre tty obvious on one occ asion it happened at the g randmother ’s house and at least on a nother oc casion, if not more
, there wer e incidenc es of rape of this child at Mr. Ricco’s r esidenc e. The Court does take that into consider ation.

Also, the Court takes into consideration the time span under which this sexual

a c tiv ity oc c ur re d. Yo u k

no w, thi s w a s o ver at le a st a tw o mo nth

pe ri od of tim e betwee n J uly

and Augu s t o f 2006. . . . Aga in, acc ording to the proof ther e we re multipl e occ asions of these inc idents taking place

. Also, the Court takes into consideration the nature a nd scope of

these sexual

a c t s

. Y o ukn o w , t h e r e w a s p l e n t y o f e v i d e n c e i nt h i s c a s e t o i n d i c a t e m e d i c a l,

sc ie nti fi c , p hy sic a l e vid e nc e that w ou ld i nd ic ate t hat this y oungfi ve y e ar o ld c hil d suffe red f rom vag inal penetr ation, anal pe netration and also oral penetr ation. Ag ain, the re wa s p le nty

of te sti mony fr om the c hil d an d fr om the do c tor and fr om s tate me nts made by the child that this y oung child was penetr ated by the def endant’ s fing er, by his penis and also by

his tongue . I t w asn’t clea r from the pr oof on which pa rticular

o c c a s i o n s w h i c h t y

p e o f p e n e t r a t i o n t o o k p l a c e an d I r e a l l y s u s p e c t t h a t[thi s
un kn ow n] w a s p art

of the re a so n the jur

y ha d s ome dif

fi c ult y tr yingto d e te rm ine to wh a t exte nt t

his pe ne tr a tio n to ok

pla c e . I me an, the re wa s ampl e pr oo f o f m ult ipl e counts of ra

pe of this c hild in multipl e way s

. . . . [T] he jury came back a

nd found him guilty

on two counts and I suspect the rea son being that it was pretty clea r that-9-

at least on one occa sion it happened at t h e g randmother ’s house a nd on another

occa sion it happened at Mr. Ricco’s house. . . .

But ba sed upon the e x tent of the phy sical dama g e to the victim and the menta l dama g e to t

he vic tim – I re c a ll lis te nin g to the do c tor a bo ut ho w p a inf

ul t his ha d to be to t his fi ve y e ar o ld c hil d. Th e c hil d did n’ t re a lly re late to a

g re a t e xten t th e pa in that she suffe red but obviously from wh at t h e d octor said, this would have been a very painful experienc e for

the child.

Ba sed upon all of that, the Court f inds that it would be appropriate to run these two sente nces consecutive . . . . So this 10 y ear sentenc e is consec utive to the 18 y ear sentenc e. Mr. Ricc o will serve a 28 y ear sentenc e . . . .

Whil e not substantial, it is our view that the evidenc e in the re cord was sufficie nt to justify

consec utive sentenc ing unde r sec tion 40-35-115(b)( 5). Ac cordingto the victim’s rec ollection, she was sexually

abused on multip l e occa sions by the def endant dur ing the summer months of 2006. Dr. Pierc ey

testified that her

examination of the victim showed heale d trauma to h er va g ina. Dr. Pierce y ’s testimony

also sug g ested that tra

uma to a pre pubesce nt gir l’s hy men would be pa inful as the ar ea is extremely sensitive. The rec ord also ref lects a statement from the victim’s repr esentative. The stateme nt indicates that the victim, ag e five , was una ble to verba liz e her fee lings re g ardingthe abuse beca

use of her ag e. Howeve r, t he victim was a cting ag g ressively towards other

children, ha d nightmar es, and ur inated in the bed at night. The rec ord also shows t h at t h e def endant wa s the boy friend of

the victim’s g randmother . Although the defe ndant was not the vi ctim’s car etake r, the de fe nd ant w a s a

ble to c omm it the of

fe ns e s fo r wh ic h he wa s c on vic te d be c a us e of his re latio ns hip with the victim’s gr andmother. Accor dingly
, we perce ive no err or i n the cour t’s sentenc ing unde r section 40-35- 115(b)( 5) as the c ourt’s finding s appea r to be adequately supported by the record. The court’s or der of

consec utive sentenc ing is a ffirme d.

CO NC LU SION

For the fore g oing r easons, the judg ments of the trial c ourt are aff irmed.

___________________________________ J .C. McL I

N, J UDGE