IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

May 15, 2001 Session

STATE OF TENNESSEE v. RANDALL RAY MILLS

 Appeal as of Right from the Circuit Court for Marshall County

No. 14007 Charles Lee, Judge

No. M2000-01065-CCA-R3-CD - Filed October 17, 2001

The defendant, Randall Ray Mills, was convicted in the Marshall County Circuit Court of one count

of rape of a child, three counts of aggravated sexual battery, and one count of casual exchange. At

the sentencing hearing, the trial court merged all of the defendant’s convictions of aggravated sexual

battery into the conviction of rape of a child and sentenced the defendant to a total effective sentence

of twenty years incarceration in the Tennessee Department of Correction. On appeal, the defendant

challenges the sufficiency of the evidence supporting his convictions. Additionally, the State

challenges the trial court’s merger of the aggravated sexual battery convictions into the rape of a

child conviction and further contends that the trial court erred in sentencing the defendant. Upon

review of the record and the parties’ briefs, we affirm in part and reverse in part the judgment of the

trial court and remand for resentencing. 

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court are Affirmed in

Part, Reversed in Part, and Remanded.

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JERRY L. SMITH and JOHN

EVERETT WILLIAMS, JJ., joined.

Andrew Jackson Dearing, III, Lewisburg, Tennessee, and Gregory D. Smith, Clarksville, Tennessee,

for the appellant/cross-appellee, Randall Ray Mills.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Smith, Assistant Attorney General;

W. Michael McCown, District Attorney General; and Weakley E. Barnard, Assistant District

Attorney General, for the appellee/cross-appellant, State of Tennessee.

OPINION

I. Factual Background
1

 This court uses only initials to identify minor victims of sexual offenses.

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On March 15, 1999, the victim, twelve-year-old C.M.,1

 lived in a duplex apartment

in Lewisburg with her mother, Penny Martin, and her sister, Jennifer Hastings. The victim’s

residence was on one side of the duplex, and the defendant lived with his two sons on the other side

of the duplex. On the day in question, Martin was visiting her father at St. Thomas Hospital in

Nashville and had left Hastings in charge of C.M. During the afternoon, C.M. had spent time talking

with the defendant’s sons, “Little Randy” Mills and Dale Mills.

At approximately 4:00 p.m., while C.M. was sitting in the yard outside the duplex,

the forty-three-year-old defendant, “BigRandy” Mills, approached her. The defendant told C.M. that

“he had dope over at his house and to come over later.” C.M. understood that the defendant was

offering to smoke marijuana with her. C.M. returned to her home where she listened to the radio and

watched television with Hastings and Hastings’ boyfriend, Robert Hodge. At approximately 8:45

p.m., Hastings told C.M. that she needed to go to bed in order to be rested for school the next day.

C.M. chose to sleep in the living room because she was afraid to sleep in her own bedroom while

her mother was out of town. Hastings and Hodge went to Hastings’ room to listen to the radio.

Soon thereafter, C.M. slipped out of the residence and went next door to the

defendant’s residence. After the defendant answered her knock on the door, C.M. followed the

defendant into his living room where he was watching television and ironing clothes. Both of the

defendant’s sons were in their bedrooms. After approximately five minutes, the defendant told C.M.

that “it was in his room,” and C.M. and the defendant went into the defendant’s bedroom where the

defendant locked the door. C.M. noted that the room was lit by three candles, and the bedroom

window was completely open. 

C.M. sat on the bed with her feet touching the floor. The defendant pulled a

marijuana cigarette from his shirt pocket and lit it. He “took a puff” and passed the marijuana

cigarette to C.M. who also smoked it. After C.M. had taken three “puffs” from the marijuana

cigarette, she did not want to smoke any more. She tossed the remainder of the marijuana cigarette

out the bedroom window. The defendant then pulled a second, shorter marijuana cigarette from his

shirt pocket and smoked that cigarette himself. C.M. testified that the marijuana made her feel

“dizzy and light headed. I couldn’t see or feel or anything.” 

C.M. related that, while her head was spinning from the effects of the marijuana, the

defendant pushed her back onto his bed. With his hand, the defendant rubbed C.M.’s vagina through

her blue jeans. The defendant then slipped a hand inside C.M.’s shirt, unclasped her bra, and fondled

her bare right breast. The defendant removed his hand from her breast and, using both hands, pulled

her blue jeans and her panties down to her ankles. At this point, the defendant kneeled in front of

C.M., put his mouth over her vagina, and licked her. The defendant proceeded to repeatedly

penetrate the victim’s vagina with his finger. C.M. estimated that this action continued for

approximately five minutes. C.M. knew the defendant had penetrated her with his finger “[b]ecause

it hurt.” The defendant then vaginally penetrated the victim with his penis. C.M. knew the
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defendant had penetrated her with his penis “because it hurt worse” than the digital penetration.

C.M. asserted that she was “high” throughout the incident and, although she tried to tell the

defendant to stop, she was unable to speak. 

Hastings, who had heard C.M. leave the duplex, began to search for C.M. When she

was unable to locate C.M. in the backyard, she asked Hodge to join the search. They got into

Hodge’s car and drove around the area for approximately five minutes, searching for C.M. When

he heard Hodge’s car start, the defendant stopped his actions, and C.M. immediately dressed. As

C.M. left the defendant’s residence, he put a twenty-dollar-bill in C.M.’s blue jeans pocket and said,

“Here is $20, thanks.” The defendant further told C.M., “If you tell anybody I am just going to deny

it.” C.M. estimated that the events occurred during a one-hour period of time.

C.M. left the defendant’s residence and immediately returned home. C.M. said she

was so “high” on her way home that, “I couldn’t hardly walk and I fell when I went out of his door.”

C.M. had to wait on the front porch of her apartment until Hastings and Hodge returned to the

residence because the front door of the duplex was locked and she did not have a key. Afraid of

getting into trouble, C.M. initially told Hastings that she had been in the backyard. When Hastings

revealed that she had looked for C.M. in the backyard, C.M. confessed that she had been at the

defendant’s home and told Hastings what had occurred. C.M. gave Hastings the twenty-dollar-bill

the defendant had placed in her jeans. The trio then went to the defendant’s residence, and Hastings

knocked on the door, which was answered by one of the defendant’s sons. Hastings entered the

residence and, finding the defendant coming out of the bathroom, loudly confronted him about the

incident. Hastings threw the money at the defendant, returned home, and called the police. 

The police arrived and began their investigation. They were unable to locate the

defendant for several days. Later that night, Hastings, Hodge, and C.M. decided to drive to Nashville

to pick up Martin but, due to car trouble, had to wait for Martin’s return the next morning. When

Martin arrived, she took C.M. to the emergency room at the Marshall Medical Center where Dr.

Phillip Roberts performed a “rape kit” on C.M., sending the rape kit and C.M.’s panties to the

Tennessee Bureau of Investigation (TBI) laboratory for testing. Although no semen or sperm was

found on the vaginal swabs performed on C.M., both substances were found in the crotch area and

near the rear waistband of the victim’s panties. 

The defendant was indicted on the following counts:

count one: rape of a child by digital penetration; 

count two: rape of a child by penile penetration; 

count three: aggravated sexual battery by the defendant’s mouth on

the victim’s vagina; 

count four: aggravated sexual battery by the defendant’s hand on the

victim’s vagina; 

count five: aggravated sexual battery by the defendant’s hand on the

victim’s breast; and,

count six: casual exchange. 
2

 From the defendant’s brief, it does not appear that he contests his conviction of casual exchange or the

resulting sentence.

-4-

After trial, a jury in the Marshall County Circuit Court found the defendant not guilty of rape of a

child but guilty of aggravated sexual battery on count one; guilty on count two; not guilty on count

three; guilty on count four; guilty on count five; and guilty on count six. At the sentencing hearing,

the trial court merged all of the defendant’s convictions of aggravated sexual battery into the

conviction of rape of a child, sentenced the appellant to twenty years incarceration in the Tennessee

Department of Correction, and ordered service of one hundred percent (100%) of the defendant’s

sentence. The trial court also sentenced the appellant as a Range II offender to two years

incarceration for the casual exchange conviction and ordered that sentence served concurrently with

the sentence for rape of a child, resulting in a total effective sentence of twenty years. We now turn

to the issues before us on appeal. 

II. Analysis

A. Sufficiency of the Evidence

We begin by addressing the defendant’s challenge to the sufficiency of the evidence

sustaining his convictions of rape of a child and aggravated sexual battery.2

 On appeal, considerable

weight is accorded to the verdict of a jury in a criminal trial. State v. Tuggle, 639 S.W.2d 913, 914

(Tenn. 1982). This deference is given because the jury, as the trier of fact, must resolve all questions

concerning the credibility of witnesses and the weight and value to be given the evidence, as well

as all factual issues raised by the evidence. State v. Pruett,788 S.W.2d 559, 561 (Tenn. 1990).

Accordingly, as the prevailing party in the trial court, the State is entitled to the strongest legitimate

view of the evidence and all reasonable inferences which may be drawn therefrom. State v.

Williams, 657 S.W.2d 405, 410 (Tenn. 1983). Therefore, a jury conviction essentially removes the

presumption of the appellant’s innocence and replaces it with a presumption of guilt, requiring the

appellant to carry the burden of demonstrating to this court why the evidence will not support the

jury’s findings. Tuggle, 639 S.W.2d at 914. To this end, the appellant must establish that no

reasonable trier of fact could have found the essential elements of the offense in question beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Tenn. R.

App. P. 13(e). 

We will first examine the defendant’s conviction of child rape as alleged in count two

of the indictment. Tenn. Code Ann. § 39-13-522(a) (1997) provides that “[r]ape of a child is the

unlawful sexual penetration of a victim by the defendant . . . , if such victim is less than thirteen (13)

years of age.” Sexual penetration is defined as “sexual intercourse . . . or any other intrusion,

however slight, of any part of a person’s body or of any object into the genital or anal openings of

the victim’s . . . body, but emission of semen is not required.” Tenn. Code Ann. § 39-13-501(7)

(1997). 

Specifically, the defendant was convicted of the rape of C.M. by “penile penetration.”

The testimony of the victim, C.M., constituted the bulk of the evidence against the defendant at trial.

C.M. testified at trial that the defendant pushed her back onto the bed, removed her blue jeans and
-5-

panties, and inserted his penis into her vagina. She knew that the defendant had inserted his penis

“because it hurt worse” than the digital penetration. Additionally, C.M. asserted that she was twelve

years old at the time of the offense. The jury could accredit C.M.’s testimony regarding these facts.

As corroboration for C.M.’s testimony, Sharon Jenkins, a quality assurance manager for the TBI

laboratory, testified that, while C.M.’s vaginal swabs did not contain semen or sperm, both semen

and sperm were present on C.M.’s panties. Moreover, C.M. testified that the defendant gave her

twenty dollars after the offense. Both Hastings and Hodges confirmed that, when they returned to

C.M.’s house after searching for her, she told them about the defendant’s actions and showed them

the twenty dollars he had given her. Accordingly, the proof adduced at trial is sufficient to sustain

the defendant’s conviction of rape of a child. See State v. Steven Otis Nicely, No. 03C01-9805-CR00174, 1999 WL 826029, at *5 (Tenn. Crim. App. at Knoxville, October 18, 1999); see also State

v. Bobby B. Barrett, No. W1999-02002-CCA-R3-CD, 2000 WL 1840073, at *8 (Tenn. Crim. App.

at Jackson, December 12, 2000), perm. to appeal denied, (Tenn. 2001).

We now turn to the defendant’s convictions of aggravated sexual battery.

“Aggravated sexual battery is unlawful sexual contact with a victim by the defendant . . . [and] [t]he

victim is less than thirteen (13) years of age.” Tenn. Code Ann. § 39-13-504(a)(4) (1997). “‘Sexual

contact’ includes the intentional touching of the victim’s . . . intimate parts, or the intentional

touching of the clothing covering the immediate area of the victim’s . . . intimate parts, if that

intentional touching can be reasonably construed as being for the purpose of sexual arousal or

gratification.” Tenn. Code Ann. § 39-13-501(6). Additionally, we note that, “‘[i]ntimate parts’

includes the primary genital area, groin, inner thigh, buttock or breast of a human being.” Id. at (2).

We will address each of the defendant’s convictions of aggravated sexual battery separately. 

First, the jury found the defendant guilty on count one of the indictment of the

aggravated sexual battery of C.M. by “digital penetration.” C.M. testified that, during the course of

the evening, the defendant inserted his finger into her vagina and “pushed it in and out . . . [for]

about five minutes.” Additionally, as we earlier stated, C.M. testified that she was twelve years old

at the time of this offense. This evidence supports the jury’s finding that the defendant intentionally

touched one of C.M.’s “intimate parts” and did so “for the purpose of sexual arousal or

gratification.” See State v. Alfred Lee Middleton, No. W1996-00022-CCA-R3-CD, 1999 WL

1531759, at *5 (Tenn. Crim. App. at Jackson, December 17, 1999); cf. State v. Anderson D. Curry,

No. 02C01-9711-CR-00452, 1998 WL 376353, at *3 (Tenn. Crim. App. at Jackson, July 8, 1998).

On count four of the indictment, the jury found the defendant guilty of aggravated

sexual battery by placing his hand on C.M.’s vagina over her blue jeans. C.M. testified that, after

she and the defendant had smoked marijuana, the defendant pushed her back onto the bed and he

“rub[bed] my private.” Specifically, the following testimony occurred:

State: . . . He took his hand and placed it where?

C.M.: On my vagina.

State: Between your legs?

C.M.: Yes, sir.

State: Were your clothes at that point on or off?
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C.M.: They were on.

State: This is over your clothing. This is going to be over your blue

jeans; right?

C.M.: Yes, sir.

As noted earlier, “the jury could reasonably construe that the defendant intentionally touched the

victim’s [vagina] for the purpose of sexual arousal or gratification.” State v. Michael A. Miller, No.

E2000-00930-CCA-R3-CD, 2001 WL 483410, at *6 (Tenn. Crim. App. at Knoxville, May 8, 2001).

Therefore, this testimony is sufficient to sustain the appellant’s conviction of aggravated sexual

battery on count four of the indictment. See State v. David Calloway, No. 03C01-9808-CR-00324,

1999 WL 1059712, at *3 (Tenn. Crim. App. at Knoxville, November 23, 1999). 

Finally, the defendant contests his conviction of aggravated sexual battery on count

five of the indictment, which alleged that the defendant “plac[ed] his hand on the victim’s breast.”

C.M. testified that, after the defendant touched her genitals over her blue jeans, he then unsnapped

her bra and began rubbing her right breast. As this court has previously noted, “the jury could have

drawn on common knowledge to reasonably infer that the defendant rubbed the victim’s breast[] for

the purpose of sexual arousal or gratification.” State v. Jack Warren Emert, Jr., No. 03C01-9802-

CC-00074, 1999 WL 512029, at *2 (Tenn. Crim. App. at Knoxville, July 21, 1999). This testimony

is sufficient to sustain the defendant’s conviction on count five. See State v. Smith, 42 S.W.3d 101,

106 (Tenn. Crim. App. 2000), perm. to appeal denied, (Tenn. 2001).

The defendant specifically argues that the jury should not have believed the testimony

of C.M. because she is “an admitted liar.” The defendant alleges that the State’s attorney interrupted

C.M.’s testimony because he “knew [C.M.] was committing perjury in this case.” However, from

our examination of the record, we find no indication that C.M. was committing perjury when the

State, while conducting the direct examination of C.M., emphasized to her the importance of telling

the truth while testifying. 

The defendant also argues that, because C.M.related a contradictory version of events

to Officer Beth Rhoten of the Lewisburg City Police Department, the rule of cancellation applies;

accordingly, the defendant argues that C.M.’s testimony must be stricken and, as a result, there is

insufficient circumstantial evidence remaining to sustain his convictions. However, the defendant

misconstrues the rule of cancellation. In Tennessee, “contradictory statements by a witness in

connection with the same fact cancel each other.” State v. Matthews, 888 S.W.2d 446, 449 (Tenn.

Crim. App. 1993). Nevertheless, “[t]his rule of cancellation applies only when inconsistency in a

witness’ testimony is unexplained and when neither version of [her] testimony is corroborated by

other evidence.” Id. (citing Taylor v. Nashville Banner Pub. Co., 573 S.W.2d 476, 483 (Tenn. App.

1978)). 

C.M. told Officer Rhoten that the defendant forcibly held her down and kept his hand

over her mouth during the incident. She also stated that she had kicked at the defendant during the

offense. C.M. explained at trial that she told this version of events because she was afraid of getting

into trouble if her sister realized that she had gone to the defendant’s home. Additionally, C.M.
3

 Although this statement seems to indicate that the trial judge only merged the aggravated sexual battery

convictions with each other, the court’s earlier statement, the judgments of conviction, and the complete transcript of

the sentencing hearing reflec t that the trial court merged the d efendant’s co nvictions of ag gravated se xual battery into

the rape of a child conviction on count two.

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testified that the information she gave Officer Rhoten regarding the manner in which the defendant

touched her during the incident was accurate. The defendant argues that this testimony is

contradictory and subject to cancellation. However, the reason for the inconsistency in C.M.’s

statements was obviously explained by C.M.’s testimony that she was afraid of getting into trouble.

See State v. Melvin Lewis Peacock, No. 01C01-9704-CR-00118, 1998 WL 380006, at **5-6 (Tenn.

Crim. App. At Nashville, July 9, 1998). Additionally, the statements C.M. made to Officer Rhoten

are not sworn testimony. State v. Michael Dwayne Edwards, No. W1999-00591-CCA-R3-CD, 2000

WL 674671, at *3 (Tenn. Crim. App. at Jackson, May 16, 2000), perm. to appeal denied, (Tenn.

2000). Prior inconsistent statements by a witness that are not sworn testimony merely raise

credibility issues for the trier of fact to resolve. See State v. Anand Franklin, No. 01C01-9807-CR00282, 1999 WL 482399, at *4 (Tenn. Crim. App. at Nashville, July 9, 1999); cf. State v. Banes, 874

S.W.2d 73, 78-79 (Tenn. Crim. App. 1993). Moreover, additional evidence in the form of sperm

and semen found on her panties corroborated C.M.’s testimony that she was sexually assaulted by

the defendant. The jury was free to accredit C.M.’s testimony and find the defendant guilty of the

charged offenses. This issue is without merit.

B. Merger

At the sentencing hearing, the trial court found that “[a]ll aggravated sexual batteries

will merge into the rape of a child.” On appeal, the State argues that the trial court erred in merging

the defendant’s convictions of aggravated sexual battery into the rape of a child conviction. The

defendant contends that the trial court did not err in merging his convictions.

The trial court stated that “[a]ll of the sexual batter[ies] under [State v. Anthony, 817

S.W.2d 299 (Tenn. 1991)], the Court finds that those charges would merge one with the other.”3

 It

appears from the record that the trial court concluded that merger was required because the

aggravated sexual batteries were “essentially incidental” to the rape of a child. Anthony, 817 S.W.2d

at 307. However, our supreme court has specifically held that 

the “essentially incidental” test, as developed in Anthony and its

progeny, is not helpful in the context of sexual offenses because each

separate sexual act “is capable of producing its own attendant fear,

humiliation, pain, and damage to the victim.”

State v. Barney, 986 S.W.2d 545, 548 (Tenn. 1999) (quoting State v. Phillips, 924 S.W.2d 662, 665

(Tenn. 1996). The Barney court went on to adopt the test articulated in People v. Madera, 282

Cal.Rptr. 674, 680 (Cal. Ct. App. 1991). Specifically, the court explained that,

if the act in question directly facilitates or is merely incidental to the

accompanying sexual conduct (such as, for example, applying

lubricant to the area of intended copulation), convictions for both acts

would be barred. If, however, the act in question is “preparatory”
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only in the sense that it is intended to sexually arouse either the

victim or the perpetrator, separate convictions are not barred. 

Barney, 986 S.W.2d at 548 (citation omitted). The court further detailed that several factors are

relevant in determining whether an act is “directly facilitative” or “merely preparatory,” namely:

“temporal proximity,” “spatial proximity,” “occurrence of an intervening event,” “sequence of the

acts,” and “the defendant’s intent as evidenced by conduct and statements.” Id. at 548-549. In

applying this test, the Barney court found no due process violation in letting separate convictions

stand where the defendant rubbed the victim’s penis (aggravated sexual battery) and the defendant

performed fellatio upon the victim (rape of a child). Id. at 549. 

In the instant case, we must conclude that the trial court improperly merged the

defendant’s conviction of aggravated sexual battery by digitally penetrating the victim into his

conviction of rape of a child. C.M. related that, after removing her blue jeans and panties, the

defendant digitally penetrated her for approximately five minutes. At the conclusion of the digital

penetration, the defendant told C.M. “I’m going to get a little dirty now.” The defendant then pulled

down his pants and inserted his penis into her vagina. This action indicates that the defendant

formed a new intent to violate the victim and did so by differing forms of penetration. See Barney,

986 S.W.2d at 548-549. As our supreme court stated in Phillips, “each of the above-described acts

is . . . a discrete type of sexual penetration . . . requir[ing] a purposeful act on the part of the

perpetrator.” 924 S.W.2d at 664-665.

We also conclude that the trial court should not have merged the defendant’s

convictions of aggravated sexual battery by fondling the victim’s breast and by touching the victim’s

genitals through her blue jeans into the defendant’s conviction of rape of a child. The defendant

contends that all of the actions were “foreplay leading to sex” and therefore “all previous actions by

[the defendant] were designed to lead to sexual intercourse,” making the incident one continuous

offense. However, as the supreme court noted in Barney, separate convictions are not prohibited

when the act is only “intended to sexually arouse either the victim or the perpetrator.” 986 S.W.2d

at 548. Moreover, “the [defendant] could have accomplished the [rape of a child] without touching

the victim’s breast.” State v. Binion, 947 S.W.2d 867, 872 (Tenn. Crim. App. 1996). Therefore, we

find that the trial court impermissibly merged these convictions of aggravated sexual battery into the

conviction of rape of a child.

However, in light of the supreme court’s recent decision in State v. Robert Derrick

Johnson, No. M1998-00546-SC-R11-CD, 2001 WL 949978 (Tenn. at Nashville, August 22, 2001)

(publication pending), we conclude that the trial court should have merged the defendant’s

convictions of aggravated sexual battery by fondling the victim’s breast and by touching her genitals

through her blue jeans into his conviction of aggravated sexual battery by digital penetration. In

Johnson, after examining two separate convictions of aggravated sexual battery, Justice Drowota

explained that “the element “sexual contact” was proven . . . by the victim’s testimony that the

defendant intentionally touched her breast and her groin area for the purpose of sexual arousal or

gratification.” Id. at *4 (emphasis in original). In deciding that aggravated sexual battery may

consist of touching more than one of the victim’s “‘intimate parts,’” the court found that the evidence
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supported only one conviction of aggravated sexual battery. Id. The court concluded that, “[i]f the

entire instance of sexual contact occurs quickly and virtually simultaneously, then only one offense

has occurred, even if more than one touching has occurred.” Id. In distinguishing Johnson from

Phillips, the court emphasized that “[t]he nature of the act is touching . . ., whereas the proof in

Phillips showed separate acts of penetration.” Johnson, No. M1998-00546-SC-R11-CD, 2001 WL

949978, at *5. Moreover, as the court noted in Johnson, “‘[i]t is apparent from the evidence that

all this happened quickly and virtually simultaneously.’” Id. at *3. Accordingly, we find that the

trial court should have merged the defendant’s convictions on counts one, four, and five into one

conviction of aggravated sexual battery but should not have merged them with the defendant’s

conviction of rape of a child on count two.

C. Sentencing 

Initially we note that, because the defendant’s convictions were improperly merged,

we must remand to the trial court for resentencing. However, as guidance to the trial court, we will

briefly address the following issues raised by the State.

The State argues that the conviction forms submitted by the jury clearly indicate that

on count one of the indictment, while the defendant was found not guilty of rape of a child, the jury

nonetheless found the defendant guilty of the lesser-included offense of aggravated sexual battery

by the defendant’s digital penetration of the victim. However, the judgment form included in the

record before this court simply indicates that the defendant was found not guilty of any crime on

count one. On remand, we instruct the trial court to correct the judgment on count one to reflect the

conviction of aggravated sexual battery. 

Additionally, the State complains that the judgment form on count two recording the

conviction of rape of a child classifies the defendant as a “violent offender” and not as a “child

rapist.” The State contends that this error could potentially impact the percentage of the sentence

the defendant must serve. A violent offender must serve one hundred percent (100%) of his

sentence, but may earn good time credits, which could reduce his sentence up to fifteen percent

(15%). Tenn. Code Ann. § 40-35-501(i)(3) (1997). In contrast, a child rapist must serve one

hundred percent (100%) of his sentence with no potential for earning good time credits. Tenn. Code

Ann. § 39-15-523(c) and (d) (1997). As the statute mandates that a child rapist must serve one

hundred percent (100%) of his sentence with no potential sentence reduction, we instruct the trial

court on remand to correct this error in the judgment. See Lloyd Paul Hill v. State, No. M2000-

01428-CCA-R3-PC,2001WL1006050, at **4-5, (Tenn. Crim. App. at Nashville, August 30, 2001);

State v. Delbert Lee Harris, No. M1999-01239-CCA-R3-CD, 2000 WL 804669, at *3 (Tenn. Crim.

App. at Nashville, June 23, 2000).

The State also argues that the trial court erred in failing to consider the statutorily

mandated enhancement factor set forth in Tenn. Code Ann. § 39-13-522(c) in sentencing the

defendant for the rape of a child conviction. This court reviews challenges to the length, range, or

manner of service of a sentence de novo. Tenn. Code Ann. § 40-35-402(d) (1997). Moreover, if the

record reveals that the trial court properly considered the sentencing principles and all relevant facts
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and circumstances, this court will review the trial court’s determinations with a presumption of

correctness. Id.; State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). Regardless, the burden is on

the State as the appealing party to demonstrate the impropriety of the defendant’s sentences. Tenn.

Code Ann. § 40-35-402, Sentencing Commission Comments. 

In conducting its de novo review, this court considers the following factors: (1) the

evidence, if any, received at the trial and the sentencing hearing; (2) the pre-sentence report; (3) the

principles of sentencing and arguments as to sentencing alternatives; (4) the nature and

characteristics of the criminal conduct involved; (5) evidence and information offered by the parties

on enhancement and mitigating factors; (6) any statement by the defendant in his own behalf; and

(7) the defendant’s potential for rehabilitation or treatment. Tenn. Code Ann. § 40-35-102 and -103

(1997), -210 (2000 Supp.); see also Ashby, 823 S.W.2d at 168. 

The State argues that the trial court was required to consider, as an enhancement

factor, that “the defendant caused the victim to be mentally incapacitated or physically helpless by

use of a controlled substance.” Tenn. Code Ann. § 39-13-522(c). Conversely, the defendant argues

that the trial court did consider this enhancement factor but gave it little weight. The record does not

reflect that the trial court considered this enhancement factor; therefore, on remand, the trial court

must consider this enhancement factor in sentencing the defendant. 

In a footnote, the State mentions that the trial court should have also considered that

the offenses of rape of a child and aggravated sexual battery involved a victim and were committed

to gratify the defendant’s desire for pleasure or excitement and that the defendant abused a position

of private trust in the commission of the offenses. Tenn. Code Ann. § 40-35-114(7) and (15). While

this court does not encourage the raising of issues in a footnote, we will nonetheless briefly examine

these issues.

First we address whether the defendant “abused a position of public or private trust”

in the commission of the offenses. Tenn. Code Ann. § 40-35-114(15). This court has previously

observed that, “[t]he existence of a position of trust ‘does not depend on the length or the formality

of the relationship.’ Instead, the court ‘should look to see whether the offender formally and

informally stood in a relationship to the victim that promoted confidence, reliability, or faith.’” State

v. Griffis, 964 S.W.2d 577, 603 (Tenn. Crim. App. 1997) (quoting State v. Kissinger, 922 S.W.2d

482, 488 (Tenn. 1996)). The evidence shows that, although the defendant was a neighbor of the

victim and had occasionally visited in the home, he was not a close friend of the victim or her family.

There is nothing in the record from which we can conclude that the defendant occupied a position

that inspired “‘confidence, reliability, or faith.’” Id. Accordingly, we conclude that the trial court

correctly refused to apply this enhancement factor. 

The State also suggests that the trial court should have found that “[t]he offense[s]

involved a victim and [were] committed to gratify the defendant’s desire for pleasure or excitement.”

Tenn. Code Ann. § 40-35-114(7). Generally, in order to sustain a defendant’s conviction for

aggravated sexual battery, the State must prove that a touching was “for the purpose of sexual
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arousal or gratification;” therefore, enhancement factor (7) may not be applied to an aggravated

sexual battery conviction. Tenn. Code Ann. § 39-13-501(6); see also Kissinger, 922 S.W.2d at 489.

Accordingly, we conclude that, on remand, the trial court may not apply enhancement factor (7) to

the defendant’s conviction of aggravated sexual battery. However, our supreme court has previously

stated that “enhancement factor (7), though essential to a finding of sexual battery or aggravated

sexual battery, is not an element of rape or aggravated rape and, therefore, may be used as an

enhancement factor in appropriate cases.” Kissinger, 922 S.W.2d at 489. In the instant case the

evidence shows that, after fondling the victim at some length and prior to penetrating her vagina with

his penis, the defendant warned the victim, “I’m going to get a little dirty now.” Additionally, after

the act, the defendant gave the victim twenty dollars and told her “thanks.” We conclude that there

is sufficient evidence in the record to warrant the application of this enhancement factor to enhance

the defendant’s sentence for rape of a child. See Griffis, 964 S.W.2d at 602; State v. David L.

McClure, No. 01C01-9505-CR-00145, 1997 WL 211254, at *9 (Tenn. Crim. App. At Nashville,

April 30, 1997). 

III. Conclusion

Based upon the foregoing, we conclude that the conviction on count one of

aggravated sexual battery and on count two of rape of a child should not have merged; however, the

convictions on counts one, four, and five should have merged with each other but remained

independent of the conviction on count two. In short, there should be one conviction of aggravated

sexual battery and one conviction of rape of a child. Accordingly, we remand this case to the trial

court for resentencing and for correction of the judgments as set forth in this opinion.

___________________________________ 

NORMA McGEE OGLE, JUDGE