### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE April 25, 2001 Session

STATE OF TENN ESSEE 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 ag gravated sexual battery and o ne count of rape of a chil d. For the forme

r the tria l court se ntenced the defe ndant toten year s, and for the latter he received

a sentence of

twenty-three

years. The trial court then ordered these sentence s to run concurrently . Subsequently, the defe ndant brought an unsuccessful

motion for new trial and

now pursues t

h e present ap peal 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 utilizingtwo enhancement factors in sentencing the defendant. Upon reviewof these issues, we find that neither merit reversal and, thus, af firm the convictions and sentences. However, we have noted error in the rape of a child judgment requiring a remand for correction there of.

Tenn. R. App.P. 3 Appeal as of Right ; Judgment

of the Cr

iminal Cour

t is Affir med and Remanded.

J ERRY S MITH , J., deliver

ed the opinion of the

court, in which G ARY R. W ADE , P.J., and T HOM AS T. W OODALL , J., joined.
Kenneth F. Irvine, Jr., Knoxville, Tennessee, for appe llant, Hershell W. Estes, Jr.

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

l; Randall E. Nichols, District Attorney General; and Kevin Allen, Robert Hea drick, and Leland Price, Assistant District Attorneys General, for appellee, State of Te nnessee.1 It is the policy of this C ourt to use initials in referring to child sex ual abu se victims.

2 Th is was a common occurre nce beca use the tel evisi on in the defendant ’s and Cindy’s bedroom was bette r t ha n the on e i n the l i vi ng r oo m.

3 Th ere w as no dispu te that th e victim had been und er the age o f thirteen at that tim e.

-2- OPINION

Factua l Background

The victim, T. E., 1 had not seen the defendant, her biological father, in numerous year s but asked her mother to help her contact the defe ndant because the victim wanted to get to know him. The s earch was success ful, and t he defe ndant tra veled to K

entucky on three or four o ccasion s to spend time with the victim. Again motivatedby 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 fre nch-kissing her. The defendant later

became engag ed 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 charg es arose. According to the victim
, she hadgone to the defendant’s bedroom to watch te levision. 2 Wearing

shorts, pa nties, and a nig htshirt tha

t extended

almost to he r kne es, th

e vic tim la

y o n the bed n ext to her father. As recounted by the victim, the

defenda nt bega n french-kissing

her; wen t to the ba throom; ca

me back to the bed; rubbed her chest; too k off her short s and panties; pulled her shirt up around her neck; rubbedher vagina; inse

rte d his fingers inside her vagina and move d them in a circular direction; climbed on top of her; and penetrated her vag ina with his penis. Th e victim all eged that this had transpired prior to Thanksg iving 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 an d i nd ic at ed th at sh e w is he d t o s ta y t here. Su bsequently, while spending the night witha classma

te whom she

trusted, the victim

told her c lassma

te about wh at had ha

ppened. This revelation ultimately led to the author ities being contacted and the resulting prosecution.

Limitation of Cross-Examination

Throu gh his first issue the defendant complains that the trial cou rt too sev erely

restric ted his ability to cross-examine the victim concer ning he r prior se xual experie

nces. He particu larly

argues tha the should h ave bee

n allowed to delve m

ore dee ply into two inc idents: on e involvin g a prio r instance of voluntary

sexual intercourse and one involving a previous molestation. Knowing that he wi shed to question the victim about both of these instances, the defendant filed a pre-t

rial “NO TICE

OF INTENT TO O FFER EVIDENCE PURSUANT TO TENN. R. EVID.-3-

412.” We, thus, begin our analysis by

observing that Tennessee Rule of Evidenc e 412 pro vides in pertine nt part: (c) Speci fic in stanc es of co nduct . Evid ence of speci fic in stanc es of a v icti m's sexual behavior is inadmissible unless admitted in accordance with the procedure s in subdivis ion (d) of

this rule, and the e

vidence is: (1) Required by

the Tennessee or United States Constitution, or (2) Offere d by

the defe ndant on th

e issue of credibi lity

of the vic tim, provided the prosecutor or victim has presented evidence a s to the victim's sexual behavior, and on ly t o t he ex te nt ne ed ed to re bu t t he sp ec if ic ev id en ce pr es en te d b y th e prosecutor or victim, or (3) If the sexual behavior wa s with the accused, on the issue of consent, or (4) If the sexual behavior wa s 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 c onsent i f the e vidence is of a pa

ttern of s exual beha

vior so distinctive and so closely re sembling the acc used's version of the alleged encounter withthe victim

that it tends to prove that the victim consented to the act charged or behaved in such a manner a s to lead th e defen dant reasonably

to believe that the victim consented.

Tenn. R. E

vid. 412(c ). In

addition, Tenness ee Rule o f Evidenc e 412 also states:

If the court determines that the evidence which the ac cused seek s to offer satisfies subdivisions (b) or ( c) and th at the pr obative v alue of t

he evide nce outw eighs i t s unfair prejudice to the victim, the evidenc e shall

be admiss ible in the

procee ding to the extent an order made by the court specifi es the evidence which may be offered and areas w ith resp ec t 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 defe ndant’s stated purpose

for see king to in troduce the conte sted additional inf ormation w as “to pr

ove or expl ain knowl edge of sexual matters.” See Tenn. R. Evid. 412(c)(4)(ii). This proof involved an incident of voluntary sexual intercourse that had occurred betwee n 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 take n place.4 The fi rst tri al of thi s matt er had r esul ted i n a hung jur y; thus, the tri al c ourt ha d acces s t o not onl y the pr ior offe r of p roo f bu t also the victim ’s pre viou s trial testim ony

.

5 Immediate ly thereaf

ter the t ria l cour t as ke d, “Do es that so lve all th e qu estion s we hav e for th at issue? ” to wh ich th e def ense respo nde d, “It d oes fo r the d efen dan t, Yo ur H ono r.”

6 Defense counselhad begun this series of qu estion s by e stablish ing th at T. E . had been arou nd n ine y ears o ld and in th e thi rd grade pr ior t o coming to Knoxv ill e. Immed iate ly ther eafter he att empted to ask if the vict im had
eng age d in con sensu al sexu al interc our se be fore mo ving to live w ith the d efen dan t. The State obj ected, and the tr ial

cou rt instruc ted th e def ense to rep hrase the q uestio n w ithou t using the w ord “con sensu al.”

-4- In handling this matter pre-trial, the lower court he ard arg

ument fro m both

the defense and prosecution; reviewed the offer of proof a nd the full testim

ony of the vic tim; 4 resear

ched pre cedent; 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 tria l court, th erefor e, state d that the

defense would be permitted to ask the following question: “Have y ou had or did you ha

ve 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 acknowledg e or present to the jury the fact that [the victim] c ould

have lea rned abo ut this par ticular a ctivity in another manner” separate fr om the incid ent involving the d

efenda nt. 5 During t he tr ial both the prosecu tion and the defen se asked the defe ndant abo

ut this experience. After detailing the defendant’s actions relative to these charges, the prosecution aske d if the victim had known what had been happe ning to her. When T. E. replied, “A little bit. Not

re al ly, though[,]” the prosecution followed up by inquiring , “Had so mebody else put th

eir [sic] pe

nis in your vag

ina before that?” The victim then indicated that this was true and answered affirma tively when the prosecutor asked, “So did y ou know what your da d [the defenda

nt] wa s do ing ?” Furthermore, on cross-examination, defense counsel queried, “b ef ore you came t

o Knoxville, did you ha ve sexual intercourse with someone o ther tha

n” the defendant ? 6 Once again, T. E. acknowledged that she had. At the outset of our analy sis, we o bserve that “[t]rial judges are empowered with g reat di scretion regarding the trial proc ess, including the scope of cross-examination,” and that suc h “discretion will not be disturbed unless an abuse” thereof is found. State v. Will iams , 929 S.W.2d 385, 389 (Ten

n. Crim. Ap

p. 1996). We furthe

r note tha t the Advis ory

Commission Co mments t o Rule 412 explain

that this r ule was d esigne d to “strike[] a balance betwee n the par amount inte

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

un ne ce ss ar y, degrading, and embar rassing invasion of

sexual priv acy .” These

dual sets of intere sts are vitally important and a re to be carefully

weighed by

the trial court in making these decisions. After reviewing the record provided, w e find that the trial judge in the instant case took great care to protect the conc erns of b oth the defendant and the victim through the allowed inquiry

. See Statev. Steven Otis Nicely , No. 03C01 -9805-CR- 00174, 199 9 WL 826 029, at ** 6-7 (Ten n. Crim.7 A similar procedure was foll owed in Nic ely , and the d efen dan t com me nda bly c ites this ca se as b eing factu ally

the mo st simila r to the instan t situation

. See State v . Steve n O tis Nice ly , 1999 WL 82602 9, a t **6-7. However, he concludes that Nic ely i s d istingu ishab le bec ause the p resen t facts are not su fficien tly an alog ous . W e resp ectfu lly disa gree and find Nic ely disposi tive.

8 Defense counseloffer ed no addi ti onal a rgument nordid he r ais e any obj ecti on to t his solut ion.

-5- App. at Knoxville, Oct. 18, 1999). 7 Though the defendant av ers that t he trial c ourt too se

verely restricted his right to confront his accuser, we determine that the juror s were adequa tely exposed to this separa

te basis f or the vic tim’s know ledge o f sexual ma tters without permit

ting inqu iry into superfluous details of a further embarrassing a nd/or personal nature to the victim. This portion of the defe ndant’s i ssue is, therefor

e, withou t merit. We next address the alleged error involving the tria l court’s limitation of the defense relative to the instance of prior sexual abuse. Again, no dis pute exists concerning whether T. E. was molested at a foster home when she was younge r. During cross-examination the victim indicated that she had not quickly told about the alleg ed abuse by he r father because she did not think that she would be b elieved. At that point the defense sought to question her “about her prior a buse or reporting it and how

it was taken seriously that, by reporting this would happen.” As the jury -out hearing concerning this matter began, de fense counsel elab or ated on th e purpose for which this evidence was being offer

ed. More specifically , defense counsel stated:

Your Honor, what I

would be offering is evidence re lated to the fact

that [ the v ictim], when she was young er, she was li ving in a foster home at which point she was sexually abused, and she reported it. And that, as a result of re porting it, that gentleman

was prosecu

ted, and I would off

er that to show that s he knew w

hat would happen, and that her testimony now tha t she didn’t tell anyone, bec ause she didn’t think she would be believed is in contradiction to what she knew from he r own experience.

When faced with opposition from the prosecutor, defense counse l added: “I am

not sure Ru

le 412 applies in this situation. This is not being offered t o show sexual promiscuity or any thing of that nature . . . . The purpose is to contradict her testimony as to why she say s she did not report.” Again over the opposition of

the prosecution, the trial ju dge de termined that this w as a legitima te area f or inquir y a nd stated : “I d

on’t wan t you going

into any details. T he questi on is: Have you previously repor

ted sexual abuse? What happened as a result of that? That is it.” 8 After the jury returned, the following exchange oc curred:

[Def ense Couns el] Q. Prior to this time, however, you re ported sexual abuse, didn’t you? [T. E.] A. Yes. [Defense Counsel] Q. And what happened when y ou 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 discre t ion. We agree wi th the trial judge that the details of the abuse were not relevant to the def endant’s stated purpose and that the-6-

latter was satisfied by

the above

colloquy . Moreove

r, while t he defe ndant did l

ist this abu se in his aforementioned

pre-trial notice, we do n ot see t hat he argued in the jury -out hearing the need for testimonyconcerning 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 def ense counsel claimed

that the inquiry was nee ded for impeachment purposes with respect to the delay in re

porting the sexual abuse in this case. "It is eleme ntary that a party may

not take one position regar

ding an issue in the

trial c ourt, change h is strategy or position in mid-stream, and advoca te 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.

Sentencin g

In his second issue the defendant contends tha t the tria l court improperly a

pplied two enhancement

facto rs a t the conclusion of his sentencing hearing. The alleged erroneously

utilized factors involve the trial court’s finding (1) that par ticularl y great personal injuries were inflicte d on the victim

and (2) t hat the de fendant committed

the offe nse ag ainst

the victim to gratify his desire for pleasure or excitement. SeeTenn. 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 c ourt from which the appeal is taken are correct." Tenn. Code Ann. § 40-35-401(d). "However, the presumption of correctness which accompanies the tria l court's action is conditioned upon the affirmative showingin the record that the trial court considered the sentencing principles and all relev ant facts and c ircumstanc es." State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). In conduc ting our review, we must consider the defe ndant's potential f

or rehabilitation, the trial

and sente

ncing hearing

evidenc e, the pr

e-sente nc e report, the sentencing principle s, sentencing alternative arg uments, the nature and character of the offense, the enhancing and mitigati ng fac tors, and the defendant's statements. Tenn. Code Ann. §§ 40-35- 103(5), -210(b); Ashby
, 823 S. W.2 d at 169. We are to also recognize that the defenda nt bears “the burden of demonstrat ing that the s entence is im proper." Id.

B. Summ ary of Sent encin g Hearin g Facts a nd th e Trial Court ’s Fin dings

Moving more spe cifically to the fac ts of this case, the defendant received a sentence of ten yearsfor his a

ggravated sexual bat

tery convicti on and twe

nty -three ye ars for his rape of a chil d conviction. As mentioned previously, these se ntences were

then set to run

concurr ently resulting in an effective se

ntence o f twenty

-three ye ars. 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 defe ndant had origina lly c ome to Ken

tucky to visit the victim, she and her husband sat down with the defendant and told him about the previous abuse.-7-

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 h ad to ld the defendant that T. E. was very sensitive and c onfused. 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 drink

ing; bei ng ver

y pr omiscuous ; having difficulty trusting other s, including her stepfather; etc. In sum, the mother stated that the victim seemed intent on “destroy [ing] her own life.” On cross-ex a mination, this witness admitted that while she had received a significant amount of

couns eling, she had no degree in psy chiatry or c ounseling. Additionally, she essentially agreed that she was not “ qualifie d to make an assessment on psycholog ical issue s.” During her te stimony this witness also revealed that T. E. has received minimal professional counseling af ter the abuse by

her father because the victim does not want to discuss it. In present ing his pr oof, the d efenda nt called four witnesses. One of these individua ls t estified that th e defendant had b een his e mploy ee and th at he had

trusted th

e defendant with h

is busines s. This witness further

stated tha

t the def endant ha d been qu ite relia ble and had a

good re putation in the community. The second witness stated that he had worked with the defe ndant at an earlier job and found him to be both trustworthy and industrious. The third g entleman indicated that he had known the defendant for

six years and

“w ou ld be pr ou d t o c al l [ th e d ef en da nt hi s] br ot he r. ” F in al ly, the defense called the defendant’ s fiance e, Debbi e Riesen, who indic ated tha t she still intended to marry the defe ndant and had bee n with him th

rough b oth trials

. Beyond these wit

nesses the pre-s entence

report a nd the vic tim impact statement were submitted for the trial court’s review. Subsequently, the trial court hea rd arguments from

both sides before announc ing the d

efenda nt’s sente nces and the ratio nale alle gedly

supportin g them. In arriving at the sentences imposed , the tri al court found applicable one mitigating fa ctor and three enhancement factors. The f ormer involved the defendant’s hav ing “been a law-abiding citizen”, been g ainfully

employed throug

houthis life, a

nd been tr usted by his neighbors, co -worke

rs, and employers. See

Tenn. Code Ann. § 40-35-113(13). Regarding enhan cement, th e trial court found the aforementioned challenge d factors applica ble along withthe fact that the defendant had abuseda position of trust by committing these off enses against his child. See Tenn. Code Ann. § 40- 35 -114(15). In a ssigning

weight to the enh anceme

nt facto rs, the lo wer cou

rt clear ly s tated tha

t it placed l ittle emphasis on its finding that the crimes had been committed to satisfy the defendant’s desire for pleasure and excitement. I t thereafter

imposed the ten- and twenty- three-y ear concurrent sentenc es.

C. Particula rly Great I njuries Su ffere d by

the Victi m

With this background w e first c onsider whether the trial court incorrectly imposed enhancement

factor (6), that the injuries suffered by the victim were particular ly gre at. C iting caselaw, the defendant asserts that expert testimony is necessary

to s upport th e utilizatio n of this factor with regard to emotional injury

. See
, e.g. , State v. Spr att , 31 S.W.3d 587, 608 (Tenn. Cr im. App. 2000). The State concedes that such proof is n ecessary

but contends that T. E.’s mother qualified as an expert on the emotional state of her daughte r. However, in State v. A

rnett , 49 S.W.3d 250 (Tenn. 2001), a decision filed after the briefing and oral arguments in this ca se, th e Tennessee Supreme Court clearly stated that while expert9 Over a two-year peri od since the offense, the Arn ett victim had “cont inuous psychol ogical counsel ing” a nd took anti-d epre ssants. See Arn ett , 49 S. W.3d at 261.

-8- testimonymay be helpful to prove the existence of this fac to r it is not a prerequisite for the application of this factor in sentencing. See id. at 260. More spe cifically, our supre me court held

that application of this factor is appropriate where ther e is specific and objective evidence demonstrating how the victim's mental injury is more serious or more

severe than that

which nor

ma ll y r esults from this offense. Such proof may be presented by the victim's own testimony , as well as the testimony of witnesse s acquain ted 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, wher e the State does not offer specific evidence of the victim's "particular ly serious" injuries, the

trial court will not be justif i ed in applying

the enhancement factor to increase a defendant's sentence. Statev. Kissinger , 922 S.W.2d 482, 488 (Tenn. 1996); see, e.g., State v. Me lvin , 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 nervo us," and whe re the victim refused to undergo a phy sical examination and psychol ogica l

couns eling, testifying

that she can "deal with it . . . [and] can block things out if [she doesn't] want to remember").

Id. at 261.

Beyond t his guidance, Arnett

does not in dicate h ow court s are to d etermine the ty pic a l emotional/mental injuries associated with any g iven crime so as to establish a point of comparison for the application of this f

actor in a particular case. Neve rtheless, the supreme court did find the emotional and psychological injuries sustained by the victim in Arnett suffici ent 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 undertake n by the vict

im an d “her need for prescription medication.” 9 Id. at 261. Th e trial court had observed that both the counseling and medic ation wer e neces sary

for the victim to fu

nction da ily and to overcome her fear of another attack. Id. From the victim

impact sta

tement in t

he instan t case, w e observ e that the victim indi c a tes that she is distrustful and fearful of older men because of the defendant ’s action s. As noted above, T. E.’s mothe

r confir med that th

e victim experiences difficulties trusting others, even including T. E.’s step-father. The victim further states that she cannot e xpress her feelings in any other manner than by crying and that she cannot fully

provide a written explanation of how her father’s abuse ha s hurt her. Again her mother’s testimonycorroborates the victim’s difficulty in expressing and dealing10 Though Kissi nger only s pecif ical ly addr esse s ra pe and aggravat ed rape, the same rea soning appli es t o rape of a c hild. See Tenn. Code Ann. §§ 39-13-501, -502,- 503,-522.

-9- withthe 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 concer ning him: “In the since [sic] of what he done [sic] to me[,] I

hate him, but he’s m

y fat her and I love him because of that.” In addition, the proof supports that T. E . is en gaging i n dangerous behavior such as sexual promiscuity. At the time of se ntencing, her mother

was aware of six people w ith whom he r daughter had

slept with

in the pre vious six month s. Un qu es ti on ab ly, T. E. has experienced numerous tragic eve nts in her short life and evidences various emotional scars. Some of her behavior has likely been influenc ed by incidents other tha n the offenses at issue here. In her mother’s candid estimation, the victim was a confused and sen sitive girl when she

went to liv e with

her father. However, now the record reflects that T. E. seemingly has

no regard for her life. I

n support of this factor, the trial court found that after the defendant’s crimes the victim “no longer cares about herself .” The lower cou r t 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 abovehelp to but tress 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 t he victim in Arnett

. See id. As such, the record does not reflect an abuse of the trial court’sdiscreti on in apply ing this factor, and this portion of the defendant ’s issue la cks merit

.

D. Desire for Pleasure or Excitement

We next consid

er the pr opriety of the trial court’s finding applicable enhancement fa ctor (7), d ealing wi th whether the defendant committed the offenses to g ratify his desire f

or pleasure or excitemen

t. See Tenn. Co de Ann. § 40-35-114(7). With respect to the agg ravated sexual battery conviction, the State concedes that this factor may not be utilized becau s e it is an element of the offense. We agree that this should not have been a considera tion in the imposition of the defendant’s ten-yea r sentence. See, e .g. , Kissinger , 922 S.W.2d at 490. Ne verthel ess, our s upreme c ourt has h eld that because pleasure or

exci tement is not an essential element of the offense of rape , Tennessee Code Annotated sect ion 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 exci temen t. Spratt , 31 S.W.3d at 608. Caselaw has provi ded that t

his motivation has been proven when "ove rt sexual d

isplays were ma

de, such as when a defendant fondled, kissed, or behav ed in a sexual ma

nner, or when the perpetr ator ac ted while

making s exually explicit remarks." State v.Will

iams , 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 c ourt observed “that there had been conduct of a sexual nature” occurring over a period of time leading up to the night of the i nstant offe nses.-10-

The trial court thereafter concluded that the only reasona

ble inference to be drawn from such conduct was that the acts were “done for the pur pose 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 def end ant once more leaned over and began french-k issing T. E. After returning from the bathroom, the def endant

re moved the victim’s shorts and panties. He pulled her night shirt up around her ne ck and bega n rubbing her bre asts. He then fondled his daughter between he r legs before penetrating

her dig itally and moving his fingers in a circular manne r. Furthermore, whi le this was not the act which the prosecution electe d to submit to the jury , the vict

im also tes tified tha

t the def endant pr oceede d to penetra te her vagina

with his penis, moving up and down and sideways while doing

so. These overt sexual displays support the use of enhanc ement factor (7) here. We also obse

rve that the defe nse unde rstanda bly didnot challenge the jury ’s determination that the touching supporting the agg ravated sexual battery

could “be reasonably

construed as being for the purpose of sexual arousal or gratification.” Tenn. Cod e Ann. § 39 -13-501( 6); see also Tenn. Code Ann. § 39-13-504(a). This was a rationa l conclus ion suppor

ted by the fac ts presented. As such, the trial cou

rt could a nd did log ically

infer tha t the acc ompany

ing rap e was moti vated by the same desire. When considered in the aggreg ate, the evidenc e does n ot point to an abuse of discretion involving the sentencing court’s use of this enhanc ement factor. Therefore, the defendant’s contention concerning the improper use of enhancement factor (7) has merit with respect to his aggrava ted sexua l battery conv iction. However, we find that the defendant’s challenge to the trial court’s utilizing this factor in deter mining hi s sentenc e for the child rape co nviction ismeritles s. Becau se the trial court did err in apply ing Tennessee

Code Annotatedsection 40-35-114(7) to the defendant’s aggr

avated sexual battery

conviction, we address whether the sentence imposed is l ike wise improper. Aggrava ted sexual battery is a class B felony, and the de fendant unquestio nably

falls within the range of eight to twelve y ears based upon his prior record or the lack thereof. See Tenn. Code Ann. § 40-35-112(a) (2). With this i n mind, we are to then balance the enhancing and mitigating factors. To doso, we must begin at the presumptive minimum sentence and enhance the sentence within the range for e xisting enhancement factors then reduce the sentence within the range for existing mitigating fa ctors. Tenn. Code Ann. § 40-35-210(e). No particular weight for eac h factor is prescribed by

the statute. See Stat e v. Sa ntiago
, 914 S.W.2d 116, 125 (Tenn. Crim. App. 1995). The weight given to “ea ch 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 f

indi ngs are supported by the record. Id. Upon reviewing the facts presented, w e find enhancement factors (6) and (15) and mitigating factor (13) appropriate. Furthermore, we conclude t hat 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 a ware of her

troubledhistory; and then subjected11 We also a ffi rm the t wenty-t hree- year s entenc e rece ived by t he defenda nt for

the rape of a child . Since this offense is an A fel ony, t he starting poin t for sen tencin g de term ination s is the m iddle of the rang e. See Tenn. Code Ann. § 40-35-21 0(c). As above-not ed, the de fendant

would be a Range I off ender; thus , a twenty-year se ntence is the midpoint agai nst which t he tr ial court was to balanc e any miti gati ng and enhancement fact ors. Because we found no er ror in the e nhancement f

actor s ut il ized by the t ria l cour t and, agai n, as the a bu se of the pos it ion o f private trust w as so egre giou s in this ca se, the re cord supp orts the senten ce im pos ed b y the trial cou rt.

-11- her to further abuse. A sentence two y

ears above the minimum is supported by the balance of factors present ed in the r

ecord be fore us. 11

Correction of Errors in the Judgment Form

Though this matter

was not raised, we have observed an e rror in the rape of

a child judgment form which requires co rrection. In the “Special Condition” portion of the form is written: “PURSUANT TO T.C.A . 40-35-501 (i) THE DEFENDANT WAS ADVISED CONCERNING TH E RELEA SE ELI

GIB IL ITY P ERCENTAG

E OF THE

OFFEN SE CONVICTED SHALL BE 100% OFTHE SENTENCE IM POSED LESS SENTENCE CREDITS EARNED; HOWEVER, NO SENTENCE

REDUCTION CREDI

TS AUTHORIZED

SHALL EXCEED 15%.” This phrasing leaves the impre ssion that t he defe ndant may

receiv e some

reducti on in the tim

e that he is to serve on this charge. Neverth eless, Te nnessee Code Anno tated se ction 39- 13-523 sta tes:

(b) Notwithstanding an y ot he r p ro vi si on of la w t o t he co nt ra ry, a multiple rapist or

a chi ld rapist, as defined in subsection (a), shall be required to serve the en tir e sentence imposed by the court undiminished by any sentenc e reduction credits such pe rson may

be elig ible for o

r earn. A multiple r

apist or a child ra pist shall b e permitted to earn any

credits for which such person is eligible and such credits may be used for the purpose of increased privileg es, redu ced security classification, or for any purpose other tha

n the red uction of the sente nce impos ed by

the cour t. (c) The provisions of title 40, chapter 35, part 5, relative to relea se eligibility status and parole shall not app ly to or authorize the rele ase of a

multiple r

apist or child rapist, as defined

in subsection (a), prior to service of the entire sentence imposed by the cour t. (d) Nothing in the provisions of title 41, cha pter 1, pa

rt 5 , shall give either the governor or the board of probation and parole the au th or it y t o release or cause the releas e of a multiple rapi st o r child ra pist, as de

fined in s ubsectio n (a), pr ior to service of the en tire sent ence imp osed by

the cour t.

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 provi sio n immediat ely following

states: “ Nothing

in this subsection shall be construed as affe c ting, amending or altering the pr ovisions of § 39-13-523, which requi res ch ild rapists and multiple rapists to serve the entire sentence imposed by the court undiminished by any

sentence reducti on credi

ts.” Tenn . Code Ann . § 40-35- 501(i)( 3); but see Tenn. Code Ann. § 40-35-501(i)(1), (2). Thus, though we do notunderstand the rationale for listing rape-12-

of a child among the offenses in Tennessee Code Annotated section 40-35-501 (i)(2), t he aforementioned

provision s of the Code s pecific ally indicate that a co nvicted c

hild rapis t 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 r eflect ing that, pursuant to Tenness ee Code A

nnotated section 3 9-13-523 , the def endant’ s sentenc e is to b e served at one hundred percent without the possibility of a reduction in time.

Conclusion

For the fore going

reasonswe find th at the defendant ’s issues d o not merit

r el ie f. Ac co rd in gl y, the judgment of the trial court is AFFI RMED. However, the case is REMANDED for correction of the rape of a chil d judgme

nt form.

___________________________________ JERRY L. SMITH, JUDGE