IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

April 25, 2001 Session

STATE OF TENNESSEE v. HERSHELL W. ESTES, JR.

Direct Appeal from the Criminal Court for Knox County

No. 62573 Richard R. Baumgartner, Judge

No. E2000-01869-CCA-R3-CD

February 4, 2002

A Knox County jury convicted the defendant of one count of aggravated sexual battery and one

count of rape of a child. For the former the trial court sentenced the defendant to ten years, and for

the latter he received a sentence of twenty-three years. The trial court then ordered these sentences

to run concurrently. Subsequently, the defendant brought an unsuccessful motion for new trial and

now pursues the present appeal in this Court raising two issues. More specifically, the defendant

avers that the trial court erred 1) by limiting defense counsel’s questioning of the victim concerning

her prior sexual experiences and 2) by improperly utilizing two enhancement factors in sentencing

the defendant. Upon review of these issues, we find that neither merit reversal and, thus, affirm the

convictions and sentences. However, we have noted error in the rape of a child judgment requiring

a remand for correction thereof.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed and

Remanded.

JERRY SMITH,J., delivered the opinion of the court, in which GARY R. WADE, P.J., and THOMAS T.

WOODALL, J., joined.

Kenneth F. Irvine, Jr., Knoxville, Tennessee, for appellant, Hershell W. Estes, Jr.

Paul G. Summers, Attorney General & Reporter; Mark A. Fulks, Assistant Attorney General;

Randall E. Nichols, District Attorney General; and Kevin Allen, Robert Headrick, and Leland Price,

Assistant District Attorneys General, for appellee, State of Tennessee.
1

 It is the policy of this Court to use initials in referring to child sexual abuse victims.

2

 This was a common occurrence because the television in the defendant’s and Cindy’s bedroom was better

than the one in the living room.

3

 There was no dispute that the victim had been under the age of thirteen at that time. 

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OPINION

Factual Background

The victim, T. E.,1 had not seen the defendant, her biological father, in numerous years but

asked her mother to help her contact the defendant because the victim wanted to get to know him.

The search was successful, and the defendant traveled to Kentucky on three or four occasions to

spend time with the victim. Again motivated by a desire to establish a relationship with her father,

T. E. moved down to Tennessee and began living with him in 1994. At some point after the victim

moved in with the defendant, he began french-kissing her.

The defendant later became engaged to Cindy Mansfield, a person T. E. admittedly did not

like. Thereafter both the defendant and the victim moved into the small home where Mansfield and

her mother, Terry Runion, resided. T. E. testified that while there, her father’s french-kissing of her

continued. She further described the events of the night from which these charges arose. According

to the victim, she had gone to the defendant’s bedroom to watch television.2

 Wearing shorts, panties,

and a nightshirt that extended almost to her knees, the victim lay on the bed next to her father. As

recounted by the victim, the defendant began french-kissing her; went to the bathroom; came back

to the bed; rubbed her chest; took off her shorts and panties; pulled her shirt up around her neck;

rubbed her vagina; inserted his fingers inside her vagina and moved them in a circular direction;

climbed on top of her; and penetrated her vagina with his penis. 

The victim alleged that this had transpired prior to Thanksgiving of 1995.3

 Though the

victim told no one then about what had occurred, she returned to her mother’s home in Kentucky for

Thanksgiving and indicated that she wished to stay there. Subsequently, while spending the night

with a classmate whom she trusted, the victim told her classmate about what had happened. This

revelation ultimately led to the authorities being contacted and the resulting prosecution.

Limitation of Cross-Examination

Through his first issue the defendant complains that the trial court too severely restricted his

ability to cross-examine the victim concerning her prior sexual experiences. He particularly argues

that he should have been allowed to delve more deeply into two incidents: one involving a prior

instance of voluntary sexual intercourse and one involving a previous molestation.

Knowing that he wished to question the victim about both of these instances, the defendant

filed a pre-trial “NOTICE OF INTENT TO OFFER EVIDENCE PURSUANT TO TENN. R. EVID.
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412.” We, thus, begin our analysis by observing that Tennessee Rule of Evidence 412 provides in

pertinent part:

(c) Specific instances of conduct. Evidence of specific instances of a victim's

sexual behavior is inadmissible unless admitted in accordance with the procedures

in subdivision (d) of this rule, and the evidence is:

(1) Required by the Tennessee or United States Constitution, or

(2) Offered by the defendant on the issue of credibility of the victim, provided

the prosecutor or victim has presented evidence as to the victim's sexual behavior,

and only to the extent needed to rebut the specific evidence presented by the

prosecutor or victim, or

(3) If the sexual behavior was with the accused, on the issue of consent, or

(4) If the sexual behavior was with persons other than the accused,

(i) to rebut or explain scientific or medical evidence, or

(ii) to prove or explain the source of semen, injury, disease, or knowledge of

sexual matters, or

(iii) to prove consent if the evidence is of a pattern of sexual behavior so

distinctive and so closely resembling the accused's version of the alleged encounter

with the victim that it tends to prove that the victim consented to the act charged or

behaved in such a manner as to lead the defendant reasonably to believe that the

victim consented.

Tenn. R. Evid. 412(c). In addition, Tennessee Rule of Evidence 412 also states:

If the court determines that the evidence which the accused seeks to offer satisfies

subdivisions (b) or (c) and that the probative value of the evidence outweighs its

unfair prejudice to the victim, the evidence shall be admissible in the proceeding to

the extent an order made by the court specifies the evidence which may be offered

and areas with respect to which the alleged victim may be examined or

cross-examined.

Tenn. R. Evid. 412(d)(4). 

Turning first to the prior incident of sexual intercourse, we again observe that the defendant’s

stated purpose for seeking to introduce the contested additional information was “to prove or explain

knowledge of sexual matters.” See Tenn. R. Evid. 412(c)(4)(ii). This proof involved an incident of

voluntary sexual intercourse that had occurred between the victim and her step-brother at some point

before the victim had come to live with her father. Neither side disputed that such had taken place.
4

 The first trial of this matter had resulted in a hung jury; thus, the trial court had access to not only the prior

offer of proof but also the victim’s previous trial testimony. 

5

 Immediately thereafter the trial court asked, “Do es that solve all the questions we have for that issue?” to

which the defense responded, “It does for the defendant, Your Honor.”

6

 Defense counsel had begun this series of questions by establishing that T. E. had been around nine years old

and in the third grade prior to coming to Knoxville. Immediately thereafter he attempted to ask if the victim had

engaged in consensual sexual intercourse before moving to live with the defendant. The State objected, and the trial

court instructed the defense to rephrase the question without using the word “consensual.”

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In handling this matter pre-trial, the lower court heard argument from both the defense and

prosecution; reviewed the offer of proof and the full testimony of the victim;4 researched precedent;

and decided that the defense would be allowed to ask about this prior experience but would not be

allowed to delve into the specifics thereof. The trial court, therefore, stated that the defense would

be permitted to ask the following question: “Have you had or did you have prior to this alleged

offense with the defendant sexual intercourse with another individual?” The trial judge concluded

that such would afford the defendant “the opportunity to acknowledge or present to the jury the fact

that [the victim] could have learned about this particular activity in another manner” separate from

the incident involving the defendant.5

During the trial both the prosecution and the defense asked the defendant about this

experience. After detailing the defendant’s actions relative to these charges, the prosecution asked

if the victim had known what had been happening to her. When T. E. replied, “A little bit. Not

really, though[,]” the prosecution followed up by inquiring, “Had somebody else put their [sic] penis

in your vagina before that?” The victim then indicated that this was true and answered affirmatively

when the prosecutor asked, “So did you know what your dad [the defendant] was doing?”

Furthermore, on cross-examination, defense counsel queried, “before you came to Knoxville, did

you have sexual intercourse with someone other than” the defendant?

6

 Once again, T. E.

acknowledged that she had.

At the outset of our analysis, we observe that “[t]rial judges are empowered with great

discretion regarding the trial process, including the scope of cross-examination,” and that such

“discretion will not be disturbed unless an abuse” thereof is found. State v. Williams, 929 S.W.2d

385, 389 (Tenn. Crim. App. 1996). We further note that the Advisory Commission Comments to

Rule 412 explain that this rule was designed to “strike[] a balance between the paramount interests

of the accused in a fair trial and the important interests of the sexual assault victim in avoiding an

unnecessary, degrading, and embarrassing invasion of sexual privacy.” These dual sets of interests

are vitally important and are to be carefully weighed by the trial court in making these decisions. 

After reviewing the record provided, we find that the trial judge in the instant case took great

care to protect the concerns of both the defendant and the victim through the allowed inquiry. See

State v. Steven Otis Nicely, No. 03C01-9805-CR-00174, 1999 WL 826029, at **6-7 (Tenn. Crim.
7

 A similar procedure was followed in Nicely, and the defendant commendably cites this case as being factually

the most similar to the instant situation. See State v. Steven Otis Nicely, 1999 WL 826029, at **6-7. However, he

concludes that Nicely is distinguishable because the present facts are not sufficiently analogous. We respectfully

disagree and find Nicely dispositive.

8

 Defense counsel offered no additional argument nor did he raise any objection to this solution.

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App. at Knoxville, Oct. 18, 1999).7

 Though the defendant avers that the trial court too severely

restricted his right to confront his accuser, we determine that the jurors were adequately exposed to

this separate basis for the victim’s knowledge of sexual matters without permitting inquiry into

superfluous details of a further embarrassing and/or personal nature to the victim. This portion of

the defendant’s issue is, therefore, without merit.

We next address the alleged error involving the trial court’s limitation of the defense relative

to the instance of prior sexual abuse. Again, no dispute exists concerning whether T. E. was

molested at a foster home when she was younger. During cross-examination the victim indicated

that she had not quickly told about the alleged abuse by her father because she did not think that she

would be believed. At that point the defense sought to question her “about her prior abuse or

reporting it and how it was taken seriously that, by reporting this would happen.” As the jury-out

hearing concerning this matter began, defense counsel elaborated on the purpose for which this

evidence was being offered. More specifically, defense counsel stated:

Your Honor, what I would be offering is evidence related to the fact that [the victim],

when she was younger, she was living in a foster home at which point she was

sexually abused, and she reported it. And that, as a result of reporting it, that

gentleman was prosecuted, and I would offer that to show that she knew what would

happen, and that her testimony now that she didn’t tell anyone, because she didn’t

think she would be believed is in contradiction to what she knew from her own

experience.

When faced with opposition from the prosecutor, defense counsel added: “I am not sure Rule 412

applies in this situation. This is not being offered to show sexual promiscuity or anything of that

nature . . . . The purpose is to contradict her testimony as to why she says she did not report.”

Again over the opposition of the prosecution, the trial judge determined that this was a

legitimate area for inquiry and stated: “I don’t want you going into any details. The question is: Have

you previously reported sexual abuse? What happened as a result of that? That is it.”8 After the jury

returned, the following exchange occurred:

[Defense Counsel] Q. Prior to this time, however, you reported sexual abuse, didn’t you?

[T. E.] A. Yes.

[Defense Counsel] Q. And what happened when you reported sexual abuse that time?

[T. E.] A. He got followed up with many more counts and got arrested.

Once more, we do not find an abuse of the trial court’s discretion. We agree with the trial

judge that the details of the abuse were not relevant to the defendant’s stated purpose and that the
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latter was satisfied by the above colloquy. Moreover, while the defendant did list this abuse in his

aforementioned pre-trial notice, we do not see that he argued in the jury-out hearing the need for

testimony concerning the actual molestation. Unlike the defendant’s brief, which now suggests that

such proof should have been allowed to further explain the victim’s knowledge of sexual matters,

at trial defense counsel claimed that the inquiry was needed for impeachment purposes with respect

to the delay in reporting the sexual abuse in this case. "It is elementary that a party may not take one

position regarding an issue in the trial court, change his strategy or position in mid-stream, and

advocate a different ground or reason in this Court." State v. Dobbins, 754 S.W.2d 637, 641 (Tenn.

Crim. App. 1988). Thus, this portion of the defendant’s issue merits no relief either.

Sentencing

In his second issue the defendant contends that the trial court improperly applied two

enhancement factors at the conclusion of his sentencing hearing. The alleged erroneously utilized

factors involve the trial court’s finding (1) that particularly great personal injuries were inflicted on

the victim and (2) that the defendant committed the offense against the victim to gratify his desire

for pleasure or excitement. See Tenn. Code Ann. §§ 40-35-114(6), (7).

A. Standard of Review

“When reviewing sentencing issues . . . , the appellate court shall conduct a de novo review

on the record of such issues. Such review shall be conducted with a presumption that the

determinations made by the court from which the appeal is taken are correct." Tenn. Code Ann. §

40-35-401(d). "However, the presumption of correctness which accompanies the trial court's action

is conditioned upon the affirmative showing in the record that the trial court considered the

sentencing principles and all relevant facts and circumstances." State v. Ashby, 823 S.W.2d 166,

169 (Tenn. 1991). In conducting our review, we must consider the defendant's potential for

rehabilitation, the trial and sentencing hearing evidence, the pre-sentence report, the sentencing

principles, sentencing alternative arguments, the nature and character of the offense, the enhancing

and mitigating factors, and the defendant's statements. Tenn. Code Ann. §§ 40-35-103(5), -210(b);

Ashby, 823 S.W.2d at 169. We are to also recognize that the defendant bears “the burden of

demonstrating that the sentence is improper." Id.

B. Summary of Sentencing Hearing Facts and the Trial Court’s Findings

Moving more specifically to the facts of this case, the defendant received a sentence of ten

years for his aggravated sexual battery conviction and twenty-three years for his rape of a child

conviction. As mentioned previously, these sentences were then set to run concurrently resulting in

an effective sentence of twenty-three years.

At the sentencing hearing for the defendant, the State presented testimony from the victim’s

mother. Within her account this witness provided information concerning the prior molestation at

the foster home. She also stated that when the defendant had originally come to Kentucky to visit

the victim, she and her husband sat down with the defendant and told him about the previous abuse.
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They further disclosed other activities of a sexual nature in which the victim had engaged including

the incident with the victim’s step-brother. Moreover, the mother stated that she had told the

defendant that T. E. was very sensitive and confused. When asked by the prosecution about how T.

E. was doing after the events forming the basis for these charges, the witness indicated that the

victim was drinking; being very promiscuous; having difficulty trusting others, including her stepfather; etc. In sum, the mother stated that the victim seemed intent on “destroy[ing] her own life.”

On cross-examination, this witness admitted that while she had received a significant amount of

counseling, she had no degree in psychiatry or counseling. Additionally, she essentially agreed that

she was not “qualified to make an assessment on psychological issues.” During her testimony this

witness also revealed that T. E. has received minimal professional counseling after the abuse by her

father because the victim does not want to discuss it. 

In presenting his proof, the defendant called four witnesses. One of these individualstestified

that the defendant had been his employee and that he had trusted the defendant with his business.

This witness further stated that the defendant had been quite reliable and had a good reputation in

the community. The second witness stated that he had worked with the defendant at an earlier job

and found him to be both trustworthy and industrious. The third gentleman indicated that he had

known the defendant for six years and “would be proud to call [the defendant his] brother.” Finally,

the defense called the defendant’s fiancee, Debbie Riesen, who indicated that she still intended to

marry the defendant and had been with him through both trials.

Beyond these witnesses the pre-sentence report and the victim impact statement were

submitted for the trial court’s review. Subsequently, the trial court heard arguments from both sides

before announcing the defendant’s sentences and the rationale allegedly supporting them.

In arriving at the sentences imposed, the trial court found applicable one mitigating factor

and three enhancement factors. The former involved the defendant’s having “been a law-abiding

citizen”, been gainfully employed throughout his life, and been trusted by his neighbors, co-workers,

and employers. See Tenn. Code Ann. § 40-35-113(13). Regarding enhancement, the trial court

found the aforementioned challenged factors applicable along with the fact that the defendant had

abused a position of trust by committing these offenses against his child. See Tenn. Code Ann. § 40-

35-114(15). In assigning weight to the enhancement factors, the lower court clearly stated that it

placed little emphasis on its finding that the crimes had been committed to satisfy the defendant’s

desire for pleasure and excitement. It thereafter imposed the ten- and twenty-three-year concurrent

sentences.

C. Particularly Great Injuries Suffered by the Victim

With this background we first consider whether the trial court incorrectly imposed

enhancement factor (6), that the injuries suffered by the victim were particularly great. Citing

caselaw, the defendant asserts that expert testimony is necessary to support the utilization of this

factor with regard to emotional injury. See, e.g., State v. Spratt, 31 S.W.3d 587, 608 (Tenn. Crim.

App. 2000). The State concedes that such proof is necessary but contends that T. E.’s mother

qualified as an expert on the emotional state of her daughter. 

However, in State v. Arnett, 49 S.W.3d 250 (Tenn. 2001), a decision filed after the briefing

and oral arguments in this case, the Tennessee Supreme Court clearly stated that while expert
9

 Over a two-year period since the offense, the Arnett victim had “continuous psychological counseling” and

took anti-depressants. See Arnett, 49 S.W.3d at 261.

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testimony may be helpful to prove the existence of this factor it is not a prerequisite for the

application of this factor in sentencing. See id. at 260. More specifically, our supreme court held

 

that application of this factor is appropriate where there is specific and objective

evidence demonstrating how the victim's mental injury is more serious or more

severe than that which normally results from this offense. Such proof may be

presented by the victim's own testimony, as well as the testimony of witnesses

acquainted with the victim.

Id. The supreme court further provided:

Specific, objective examples . . . of the disabling effects of the victim's mental injury

obviate the need for expert proof. On the other hand, where the State does not offer

specific evidence of the victim's "particularly serious" injuries, the trial court will not

be justified in applying the enhancement factor to increase a defendant's sentence.

State v. Kissinger, 922 S.W.2d 482, 488 (Tenn. 1996); see, e.g., State v. Melvin, 913

S.W.2d 195, 203-04 (Tenn. Crim. App. 1995) (rejecting application of this factor

where the mother of the victim testified that the victim was "highly nervous," and

where the victim refused to undergo a physical examination and psychological

counseling, testifying that she can "deal with it . . . [and] can block things out if [she

doesn't] want to remember").

Id. at 261. 

Beyond this guidance, Arnett does not indicate how courts are to determine the typical

emotional/mental injuries associated with any given crime so as to establish a point of comparison

for the application of this factor in a particular case. Nevertheless, the supreme court did find the

emotional and psychological injuries sustained by the victim in Arnett sufficient to establish the

existence of this enhancement factor; thus, the injuries catalogued in that case provide this Court

with some guidance as to the propriety of applying factor (6) to the instant case.

In Arnett, the supreme court noted the extensive counseling undertaken by the victim and

“her need for prescription medication.” 9Id. at 261. The trial court had observed that both the

counseling and medication were necessary for the victim to function daily and to overcome her fear

of another attack. Id.

From the victim impact statement in the instant case, we observe that the victim indicates

that she is distrustful and fearful of older men because of the defendant’s actions. As noted above,

T. E.’s mother confirmed that the victim experiences difficulties trusting others, even including T.

E.’s step-father. The victim further states that she cannot express her feelings in any other manner

than by crying and that she cannot fully provide a written explanation of how her father’s abuse has

hurt her. Again her mother’s testimony corroborates the victim’s difficulty in expressing and dealing
10 Though Kissinger only specifically addresses rape and aggravated rape, the same reasoning applies to rape

of a child. See Tenn. Code Ann. §§ 39-13-501,-502,-503,-522.

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with the defendant’s actions as evidenced by the victim’s problem in talking to her mother and/or

a counselor about the events. The extent to which the victim is torn is made evident by her written

statement concerning him: “In the since [sic] of what he done [sic] to me[,] I hate him, but he’s my

father and I love him because of that.” In addition, the proof supports that T. E. is engaging in

dangerous behavior such as sexual promiscuity. At the time of sentencing, her mother was aware of

six people with whom her daughter had slept within the previous six months.

Unquestionably, T. E. has experienced numerous tragic events in her short life and evidences

various emotional scars. Some of her behavior has likely been influenced by incidents other than the

offenses at issue here. In her mother’s candid estimation, the victim was a confused and sensitive

girl when she went to live with her father. However, now the record reflects that T. E. seemingly has

no regard for her life. In support of this factor, the trial court found that after the defendant’s crimes

the victim “no longer cares about herself.” The lower court describes her as uncommunicative,

somewhat “despondent,” engaging in reckless and unnatural sexual behavior, etc., since the offenses

occurred. Specific, objective examples of her behavior outlined above help to buttress this claim.

Therefore, while some form of expert testimony may have been helpful, we find the injuries

suffered here equally as compelling as those suffered by the victim in Arnett. See id. As such, the

record does not reflect an abuse of the trial court’s discretion in applying this factor, and this portion

of the defendant’s issue lacks merit.

D. Desire for Pleasure or Excitement

We next consider the propriety of the trial court’s finding applicable enhancement factor (7),

dealing with whether the defendant committed the offenses to gratify his desire for pleasure or

excitement. See Tenn. Code Ann. § 40-35-114(7). With respect to the aggravated sexual battery

conviction, the State concedes that this factor may not be utilized because it is an element of the

offense. We agree that this should not have been a consideration in the imposition of the defendant’s

ten-year sentence. See, e.g., Kissinger, 922 S.W.2d at 490. Nevertheless, our supreme court has held

that because pleasure or excitement is not an essential element of the offense of rape, Tennessee

Code Annotated section 40-35-114(7) may be used to enhance a defendant's sentence for such

offense. See, e.g., id. at 489.10

The State, however, bears the burden of demonstrating that the offender was motivated by

a desire for pleasure or excitement. Spratt, 31 S.W.3d at 608. Caselaw has provided that this

motivation has been proven when "overt sexual displays were made, such as when a defendant

fondled, kissed, or behaved in a sexual manner, or when the perpetrator acted while making sexually

explicit remarks." State v.Williams, 920 S.W.2d 247, 260 (Tenn. Crim. App. 1995); see also, e.g.,

Arnett, 49 S.W.3d at 262; State v. Michael Anderson Peek, No. E1998-00038-CCA-R3-CD, 2000

WL 565129, at *27 (Tenn. Crim. App. at Knoxville, May 3, 2000).

In deciding that this factor applied here, the trial court observed “that there had been conduct

of a sexual nature” occurring over a period of time leading up to the night of the instant offenses.
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The trial court thereafter concluded that the only reasonable inference to be drawn from such conduct

was that the acts were “done for the purpose of pleasure or excitement.”

As above-outlined, the State had presented proof at trial that the defendant had been frenchkissing his daughter over a period of time. On the night of the offenses, the defendant once more

leaned over and began french-kissing T. E. After returning from the bathroom, the defendant

removed the victim’s shorts and panties. He pulled her night shirt up around her neck and began

rubbing her breasts. He then fondled his daughter between her legs before penetrating her digitally

and moving his fingers in a circular manner. Furthermore, while this was not the act which the

prosecution elected to submit to the jury, the victim also testified that the defendant proceeded to

penetrate her vagina with his penis, moving up and down and sideways while doing so. These overt

sexual displays support the use of enhancement factor (7) here.

We also observe that the defense understandably did not challenge the jury’s determination

that the touching supporting the aggravated sexual battery could “be reasonably construed as being

for the purpose of sexual arousal or gratification.” Tenn. Code Ann. § 39-13-501(6); see also Tenn.

Code Ann. § 39-13-504(a). This was a rational conclusion supported by the facts presented. As such,

the trial court could and did logically infer that the accompanying rape was motivated by the same

desire. When considered in the aggregate, the evidence does not point to an abuse of discretion

involving the sentencing court’s use of this enhancement factor.

Therefore, the defendant’s contention concerning the improper use of enhancement factor

(7) has merit with respect to his aggravated sexual battery conviction. However, we find that the

defendant’s challenge to the trial court’s utilizing this factor in determining his sentence for the child

rape conviction is meritless.

Because the trial court did err in applying Tennessee Code Annotated section 40-35-114(7)

to the defendant’s aggravated sexual battery conviction, we address whether the sentence imposed

is likewise improper. Aggravated sexual battery is a class B felony, and the defendant

unquestionably falls within the range of eight to twelve years based upon his prior record or the lack

thereof. See Tenn. Code Ann. § 40-35-112(a)(2). With this in mind, we are to then balance the

enhancing and mitigating factors. To do so, we must begin at the presumptive minimum sentence

and enhance the sentence within the range for existing enhancement factors then reduce the sentence

within the range for existing mitigating factors. Tenn. Code Ann. § 40-35-210(e). No particular

weight for each factor is prescribed by the statute. See State v. Santiago, 914 S.W.2d 116, 125 (Tenn.

Crim. App. 1995). The weight given to “each factor is left to the trial court’s discretion” as long as

it comports with the sentencing principles and purposes of our code and as long as its findings are

supported by the record. Id.

Upon reviewing the facts presented, we find enhancement factors (6) and (15) and mitigating

factor (13) appropriate. Furthermore, we conclude that the violation of the abuse of a position of

private trust here should carry great weight. See Tenn. Code Ann. § 40-35-114(15). This defendant

re-entered his biological daughter’s life; was made aware of her troubled history; and then subjected
11 We also affirm the twenty-three-year sentence received by the defendant for the rape of a child. Since this

offense is an A felony, the starting point for sentencing determinations is the middle of the range. See Tenn. Code Ann.

§ 40-35-210(c). As above-noted, the defendant would be a Range I offender; thus, a twenty-year sentence is the midpoint against which the trial court was to balance any mitigating and enhancement factors. Because we found no error

in the enhancement factors utilized by the trial court and, again, as the abuse of the position of private trust was so

egregious in this case, the record supports the sentence imposed by the trial court.

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her to further abuse. A sentence two years above the minimum is supported by the balance of factors

presented in the record before us.11

Correction of Errors in the Judgment Form

Though this matter was not raised, we have observed an error in the rape of a child judgment

form which requires correction. In the “Special Condition” portion of the form is written:

“PURSUANTTOT.C.A. 40-35-501 (i) THE DEFENDANT WAS ADVISEDCONCERNINGTHE

RELEASE ELIGIBILITY PERCENTAGE OF THE OFFENSE CONVICTED SHALL BE 100%

OF THE SENTENCE IMPOSED LESS SENTENCE CREDITS EARNED; HOWEVER, NO

SENTENCE REDUCTION CREDITS AUTHORIZED SHALL EXCEED 15%.” This phrasing

leaves the impression that the defendant may receive some reduction in the time that he is to serve

on this charge.

Nevertheless, Tennessee Code Annotated section 39-13-523 states:

(b) Notwithstanding any other provision of law to the contrary, a multiple rapist or

a child rapist, as defined in subsection (a), shall be required to serve the entire

sentence imposed by the court undiminished by any sentence reduction credits such

person may be eligible for or earn. A multiple rapist or a child rapist shall be

permitted to earn any credits for which such person is eligible and such credits may

be used for the purpose of increased privileges, reduced security classification, or for

any purpose other than the reduction of the sentence imposed by the court.

(c) The provisions of title 40, chapter 35, part 5, relative to release eligibility status

and parole shall not apply to or authorize the release of a multiple rapist or child

rapist, as defined in subsection (a), prior to service of the entire sentence imposed by

the court.

(d) Nothing in the provisions of title 41, chapter 1, part 5, shall give either the

governor or the board of probation and parole the authority to release or cause the

release of a multiple rapist or child rapist, as defined in subsection (a), prior to

service of the entire sentence imposed by the court.

Tenn. Code Ann. § 39-13-523(b), (c), (d). While Tennessee Code Annotated section 40-35-501(i)(1)

and (2) seem to allow a reduction, the provision immediately following states: “Nothing in this

subsection shall be construed as affecting, amending or altering the provisions of § 39-13-523, which

requires child rapists and multiple rapists to serve the entire sentence imposed by the court

undiminished by any sentence reduction credits.” Tenn. Code Ann. § 40-35-501(i)(3); butsee Tenn.

Code Ann. § 40-35-501(i)(1), (2). Thus, though we do not understand the rationale for listing rape
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of a child among the offenses in Tennessee Code Annotated section 40-35-501(i)(2), the

aforementioned provisions of the Code specifically indicate that a convicted child rapist is not to

receive any reduction in his or her sentence. See Tenn. Code Ann. §§ 39-13-523 and 40-35-501(i)(3).

We, therefore, remand this matter for entry of a corrected judgment form reflecting that, pursuant

to Tennessee Code Annotated section 39-13-523, the defendant’s sentence is to be served at one

hundred percent without the possibility of a reduction in time.

Conclusion

For the foregoing reasons we find that the defendant’s issues do not merit relief. Accordingly,

the judgment of the trial court is AFFIRMED. However, the case is REMANDED for correction of

the rape of a child judgment form.

___________________________________ 

JERRY L. SMITH, JUDGE