### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE May 15, 2001 Ses sion

STATE OF TENNESSEE v. RAND ALL 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, Rand

all Ray Mills, w

as 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 effectivesentence of twenty years

incarceration

in the Tennessee Department of Correction. On appeal, the defendant challenges the sufficiency of the evid

ence suppor ting his convictio ns. Additionally

, the State chal lenges the t rial court’s merger of the aggravated sexual battery convictions into the rape of a child conviction and fu rther cont ends 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 Appe al as of Right; Judgme

nts of the Circuit Co

urt are Affirmed

in Part, Revers

ed in Part, and Rem

anded.

N ORMA M C G EE O GLE , J., delivere d the opinion o f the court, in which J ERRY L. S MITH and J OHN E VERETT W ILLI

AMS , JJ., joined.

Andrew Jackson De aring, III, Lewisburg, Tennessee, and Gregory D. Smith, Clarksville, Tennessee, for the appellan

t/cross-appelle

e, Randall Ray

Mills.

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

nt Attorney G

eneral; W. Michael McCown, D istrict Attorney

General; and Wea

kley E. Ba

rnard, Assistant District Attorney General, for the appellee/cross-appe llant, State of Tennessee.

OPINION

I. Factual Backgr

ound1 This court uses only initials to identify minor victims of sexual offenses.

-2- On March 15, 1999, the victim, twelve-year-old C.M., 1 lived in aduplex apartment in Lewisburg w

ith her mother, Pe

nny Marti

n, and her sister, Jennifer Hastings. The victim’s residencewas 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 questi on, Martin was visit

ing her father

at St. Thomas Hospita

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

nt’s sons, “Lit

tle Randy” M

ills and Dale Mills.

At approximately

4:00 p.m., while

C.M. was si

tting in th e yard outside th

e duplex, the forty-three-yea

r-old defendant, “B ig Ran dy” Mills, app roached her. The defendant told C.M. that “he had dope over at his house and to come over later.” C.M. understood tha t the de fendant 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 a pproximately 8:45 p.m., Hastings told C.M. that she needed to go to bed

in o rder to b e res ted for sch ool the nex t da y. C.M. chose to sleep in th e living room bec

ause she was afr

aid 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 r esidence and we

nt next d oor t o the defendant’s residence. Aft er the defenda

nt a n swered 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 d

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

M. noted that the ro

om was lit by th

ree candles, and

the bedroom window was completely open.

C.M. sat on the bed with h er feet touching

th e floor. The defendant pulled a marijuana cigarette from his sh

irt 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 ciga

rette outthe bedroom window. The defendant then pulled a second, shorte

r marijuana cig

arette from his shirtpocket

and smoked t hat cigarette himself. C.M. testified that the marijuana made her feel “dizzy and light headed. I couldn’t see or fee l or anything.”

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

nto his bed. With his hand, the defendant rubbed C.M.’s vagi na 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 an

d her panties down

to her ankles. At th

is point, the defendant kn eeled in front of C.M., put his mout h over her vagin a, and licked her

. The defendant p

roceeded to re

peatedly penetrate th e 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 d efendant th en vagi na lly penetrated the victim with his penis. C.M. knew the-3-

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 back yard, she a sked Hodge to join

the search. The

y 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, “Hereis $20, thanks.” The defendant further told C.M., “If you tell any body 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 f ront porch of her

apartment until Ha

st ings and Hodg e returned to the residencebecause the front door of the duplex was locked and she did not have a key. A fraid of getting into trouble, C.M. initially told Hastings that she had been in the backyard. When Hasti ngs revealed t hat she had looked for C.M. in the backyard, C.M. confessed that she had been a t the defendant’s home and to ld Hastings what had occ urred. C.M . gave Hastin gs the twenty-doll ar-bill the defendant had placed in her jeans. The trio then went to the defendant’ s residence , and Hasti ngs knockedon the door, which was answered by one of the defendant’s sons. Hastings entered the residenceand, 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 poli ce arrived and began their investigation. They were unable to locate th e defendant for several days. Later that night, Hastings, Hodge, and C.M. decided to drive to Nashvill

e to pick up Martin but, due to c ar trouble, had to

wait for Martin’s return the next morning. When Martin arrived, she took

C.M. to the emerg

ency room a

t the Marshall Medica l Center where Dr. P hillip Roberts performe d a “rape kit” on

C.M., sending the

rape kit and C.M.’ s pantie s to th e Tennessee Bureau of Inve stiga tion (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 w

as indicted on the f

ollowing counts: count one: rape o

f a child by d

igital penetra

tion; count two: rape of

a child by pe

nile penetration ; count three: aggravated sexual battery by the defe

ndant’s mouth on the victim’s vag

ina;
count four: aggravated

sexual battery by the defenda nt’s hand on the victim’s vagina; count five: aggravated sexual battery by the defendant’s handon the victim’s breast; and, count six: casual exchange.2 From the defendant’ s brief, i t does not appear th

at he c ontest s his conviction of casual exchange or the resulti ng 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 g uilty on count six. At the sent encing heari ng, the trial court merged all of the defendant’ s convictions of aggravated sexual battery into the conviction of rape of a chil d, sentenced the

appellant to

twenty years

incarceration in the Tennessee Depa rtment of Correction, and ordered service of one hundred percent (100%) of the def endant’s

se ntence. 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 concurr

ently with the sentence for ra

pe of a child, res

ulting in a total ef

fective sentenc

e 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 cha llenge to the sufficiency of the evidence sustaining his convictions of rape of a chi ld a nd a ggra vat ed s exu al b att ery. 2 On appeal, consid erable weight is accorded to theverdict of a jury in a criminal trial. State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982). This deference is gi ven beca use the jur y, as the trier of fact, must resolve all questions concerning the credibility of witnesses and th

e weight and va

lue to be given th

e evidence, as w

ell

as all factual issues raised by the evidence. State v. Pr uett ,78 8 S.W.2d 559, 561 (Tenn. 1990). Acco rdi ngly, as the prevailing party in the trial court, the Sta

te is entitled to the

strongest legi

timate view of the evidence and all reasonable inferences whi ch m ay 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 r eplaces it with a presumption o

f guilt, requiring the appellant to carry th

e burden of demon

strating to this co

urt why the e

vidence will not s

upport the jury’s findings. Tuggle , 639 S.W.2d at 9 14. To thi s end, the appellant must establish that no reasonable

trier of fact co

uldhave found the essential elements of the offense in question beyond a reasonable

doubt. Jackson v. Virgini a , 44 3 U.S. 307 , 319, 99 S. Ct. 2781, 27 89 (1979); Tenn. R. App. P. 13(e).

We will first examine the defendant’s co

nviction of child r

ape as allege

d in count two of the indictment. Tenn. Code Ann. § 39-13-522(a) (1997) provides that “[r]ape o f a child is the unlawful sexual penetration of a victim by the defendant . . . , if such victim is less than thirteen (13) yearsof 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, b ut emission of semen is not required.” Tenn. Code Ann. § 39-13-501(7) (1997).

Spe cif ica lly, the defendant was convicted of the rape of C.M. by “peni le pen etration.” The testimony of

the victim, C.M., constituted the bulk of the eviden ce against the d

efendant at tria

l. 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 hurtworse” than the digital penetration. Additionally, C.M. asserted that she was twelve yearsold at the time of

the offense. The

jury could a

ccredit C.M.’s te

stimony reg

arding these fa

cts. As corroboration for C.M.’s testimony, Sharon Jenk ins, a quality assurance manager for the TBI laboratory

, testified that,

while C.M.’s vaginal swabs did not contain semen or sperm, both semen andsperm were present on C.M.’s panties. Moreover, C.M. testified that the defendant gave her twenty dollars after the off ense. Both H astings and Hodges conf irmed that, when th

ey returne d 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 suffici

ent to sustain the defendant’s conviction of rape of a child. See State v. Steven Otis Nicely , No. 03C01-9805-CR

00174, 1999 WL 826029, at *5 (Tenn. Crim. App. at Knoxville, October 18, 1999) ; see also State

v. Bobby B. B arrett , 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 n ow turn to the defendant’s convictions of aggravated sexual ba ttery

. “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 A nn. § 39-13-504(a)(4) (1997). “‘Sexual contact’ includes the intentional tou ching of the victim’s . . . intimate parts, or the intentional touching of the clothing covering the immediate area of the victim’s . . . intimate pa r ts, if that intentional touching can be reasonabl y construed as b eing fo r the purpose of sexual arousal or gratification.” Tenn. Code Ann. § 39-13-501(6). Additionally, we not e that, “‘[i]ntimate parts’ includes the primary

genital area,

groin, inner thig

h, buttock or brea

st 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 penetra tion.” C.M. testified that, during the c ourse 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 stat ed, C.M. testified t

hat she was twelve

years old
at the time of this offense. This evidence suppor ts the jury’s

finding that the d

efendant intenti

onally touchedone 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- C D, 1999 WL 1531759, at *5 (Tenn. Crim. A pp. at Jackson, Dec

ember 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 defend ant g uilty 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 defenda nt 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 y

our legs? C.M.: Yes, sir. State: Were your clothes at that point on or off?-6- 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 note d 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 sus

tain the appella

nt’s c onviction 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).

Fin all y, the defendant contests his conviction of aggravated sexual battery on count five of the indictment, which alleged that the defendant “pla

c[ed] his hand on the victim’s breast.” C.M. testified that, after the defendant touched her ge

nitals over her blue jeans, he then unsnapped her bra and began

rubbing her rig

ht 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 Statev. 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 t he testimo ny of C.M. because

she is “an admitted liar.” The defendant alleges that the State’s attorney interrupted C.M.’s testimonybecause he “ knew [C.M.] was committing perjury in this case.” However, from

ou r examination of the record, we find no indication that C.M. was committing perjur y when th

e 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 contradi ctory vers ion of events
to Officer Beth Rhoten of the Lewisburg City Police Department, the rule of cancellation ap

plies;

acco rdi ngly, the defendant a rgues that C.M.’ s testimony mus t be stricken and,

as a result, t here is insufficient

circumstantial evidenceremaining to sustain his convictions. However, the defendant misconstrues the rule of canc ellati on. In Tennessee, “co ntradictory

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). Neve

rtheless, “[t]his rul

e of cancellati

on applies only

when inconsistency in a witness’ testimony is un

explained and when

neith er vers ion 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 thatthe 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 sist

er realized that s

he had gone to the

defendant’s home. Additionally , C.M.3 Although thi s statement seems to indic ate that t he trial j udge only merged the aggravated sexual battery convictions with each oth er, the court ’s earli

er statement

, the judgments

of convicti

on, and the c omp lete t

ranscri pt of the sentencing hearing reflec t that the trial court m erged the d efendant’s co nvictions of ag gravated se xual battery into the rape of

a child convicti

on on count t

wo.

-7- testified that the information she gave Officer Rhoten regarding the manner in which the defendant touchedher during the in cident was accu

rate. The defe

ndant a rgues tha t this testimony is contradict oryand su bject 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 testimon y. Stat e v. Michael Dwayne Edwards , No. W1999-00591-CCA-R3-CD, 2000 WL 6 74671, at * 3 (Tenn. Crim. App. at Jackson, May 16, 2000), perm. to appeal denied , (Tenn. 2000). Prior inconsistent s ta te ments by a wit

ness that are not s

worn testimony

merely ra

ise credibility

issues for the trier

of fact to resolve. See State v. Anand Fr anklin , No. 01C01-9807-CR

00282, 1999 WL 482399, a t *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 f orm of sp erm 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 offe

nses. This issue is w

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

nds that the trial c

ourt did not err in me

rging his convi

ctions.

The trial court state

d 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 withthe other.” 3 It appears from the record that th e 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 cour

t has specificall

y held that the “essentially incidental” test, as developed in Anthony and its pro geny, is not helpful in

the conte xtof sexual offenses because each separate sex ual act “is capable of producing its own attendant fear, humiliation, pain, and damage to the victim.” Statev. 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. Mader a , 28 2 Cal.Rptr. 674, 680 (

Cal. Ct. App. 1991).

Specifically

, the court explaine

d that, if the act in question directly facilitates or is merely incidental to the accomp a nying

sexual conduct (such as, for example, applying lubricant to the area of intende

d copulation), co

nvictions for both

acts would be barred. If, however

, the act in q ues tio n is “pre para tor y”-8- only in the sense that i t 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 pre

paratory,” nam ely: “temporal proximity,” “spatial proximity,” “occurrence of an intervening event,” “sequence of the acts,” and “the defend

ant’s intent as ev

idenced by

conduct a

nd statem ents.” Id. at 548 -549. In applying this test, th

e Ba rney court found no due process violation in letting separate convictions stand where the defe nda nt r ubb ed t he v ict im’ s pe nis (agg rava ted sex ual bat ter y) and the defendant performed fellatio upon the victim (rape of a child). Id. at 549.

In t he instant case, we must conclude that the trial court improperly merg ed th e defenda nt’s conviction of ag gravated sexua

l battery by

digitally p

enetrating 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 defe ndant formeda new intent to viola te the victim and did

so by differ

ing forms of penetration. See Barney
, 986 S.W.2d at 548-549. As our supreme court stated in Phillip s, “each of the a bove-describe

d acts is . . . a discret e type

of sexu al 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 defendan t contends that all of the act ions were “fore

play leadin

g to sex” and ther

efore “all previous actions by [the defendant] werede signed to lead to sexual intercourse,” making the incident one continuous offense. However, as the supreme court no ted in Bar ney , separate convictions are not prohibited when the act isonly “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 aggrava ted 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), w e conclu de that the trial court should have merged the defendant’s convictions of aggravat

ed sexual battery

by fondling

the victim’s brea

st and by touching

her genitals through her blue j eans i nto hi s conv ictio n of agg ravat ed sex ual ba ttery b y digit al pen etrat ion. In Johnson
, after examining two separate convictions of aggravated sexual battery
, Justice Drowota explained that “the element “sexual cont a ct” was proven . . . by the victim’s testimony that the defendant intentionally touched her breast a nd her groin area for the purpose of sexual arousal or gratification.” Id. at *4 (emphasis in original). In d eciding that

aggravated sexual battery may consist of touching more than one of the victim’s “‘intimate parts,’”the court found that the evidence-9-

supported only one conviction of aggravated sexual battery. Id. The court conclu ded that, “[i]f the entire instance of sexual

contact occurs q

uickly and v

irtually simultaneously

, then only

one offense has occurred, even if more than one touching has occurred.” Id. In distingui shing Johnso n from Phillips
, the court emphasized that “[t]he natur e of the act is t ouching . . ., whe

reas the proof in Phillips showed separate acts of penetration.” Johnson , No. M1998-00546-SC -R11-CD, 2

001 WL 949978, at *5. Moreover, as the court noted in Johnson , “‘[i]t

is apparent from the evidence that al l t his 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 in to one conviction of aggravated sexua l battery but should not have merged them with the defendant’s conviction of rape of a child on count two.

C. Sentenc ing Initially we note that, because the defendant’s convictions were improperly merged,

we must remandto the trial court f or resentencing . However, as g uidance to

the trial court, w

e 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 in

dictment, while the defendant was found not guilty of rape of a child, the jury nonetheless

found the defend

ant guilty of the lesser-included offense of aggravated sexual battery by the defendant’s

digital penetra

tion of th e victim. However, the judgment form included in the record before this cour

t simply indica

tes that the defe

ndant was found n ot guilty of any crime on
count one. On remand, we instruct the tr ial court to

correct the judgment on count one to reflect the conviction of aggravated sexual battery.

Add iti ona lly, the State complains that the judgment form on count two recording the conviction of rape of a child classifies the d efendant as a “ violent offender

” and not as a “ch

ild rapist.” The State contend s that this error c

ould potentially

i mpact the percentage of the sentence the defendant must se

rve. A violent off

ender must serve

one hundred perc

ent (100%) of his sentence, but may earn good time credi ts, which could reduce his sentence up to fifteen percent (15%). Tenn. Code Ann. § 40-35-501(i)(3) (1997). In contrast, a child ra pist must serve one hundredpercent (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 hundredpercent (100%) of his sentence with no potential sentence reduct io n, we instruct the trial

court on remand to co rrect this error in the judgment. See Lloyd Pa ul Hill v. State , No. M2000- 01428 -CCA-R3-PC, 2001 WL 10 06050, at **4-5, (Tenn. Crim. App. at Nashville, August 30, 2001); Statev. Delbert Lee

Harris , No. M1999

-01239-CC

A-R3-CD,

2000 WL 804669, at *3 (Ten

n. Crim. App. at Nashville, June 23, 2000).

The State also argues that the trial court erredin failing to cons ider the statutori

ly mandatedenhancement f actor set f

orth 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 prope

rly considered the sentencing prin ciples and all re

levant facts-10-

andcircumstances, this court will review the t rial court’s determinations with a presumption of
correctness. Id. ; State v. Ashby , 823 S.W.2d 166, 169 (T enn. 1991). Rega

rdless, the burde

n 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 a ny, received at the trial and the sentencing hearing; (2) the pre-sente nce report; (3) the principles of sentencing and arguments as to sentencing alternatives; (4) the nature a nd 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 (200

0 Supp.); see also Ashby , 823 S.W.2d at 168.

The State argues that the trial court was required to consider, as an enha n cement factor, that “the defend

ant caused the vic

tim to be mentally

incapacitated or physically he lpless by

use of a controlled substance.” Tenn. Code Ann. § 39-13-522(c). Conversely, the defendant arg ues 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) a nd (15). While this court does not encourage the raising of issues in a footn

ote, we will noneth

eless briefly examine these issues.

First

we address whether the defendant “abused a position of public or priva te trust” in the commission of the offenses. Tenn. Code Ann. § 40-35-114(15). This court has pr evio usly observed that, “[t]he existence of a position of trust ‘does not

depend on the leng

th or the formality of the relationship.’ Instead, the court ‘should look to see whether the offender f orm all y a nd informally

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

v. Griffis , 964 S.W. 2d 577, 603 (Tenn. Cri m. App. 199 7) (quotin g State v. Kissinger , 922 S.W.2d 482, 488 (Tenn. 19 9 6)). The evidence shows that, although the defendant was a neighbor of the victim and had occasion

ally visited i

n the hom e, h e was not a cl ose fri end of t he v ict im o r her fam ily. 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 t

hat “[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). Genera lly, in order

to sust ain a defendant’s conviction for aggravated

sexual battery, the State must prov e thata touching was “for the purpose of sexual-11-

arousal or gratification;” therefore, enhancem ent factor (7) may not be applied to an aggr avated sexual battery conviction. Tenn. Code Ann. § 39-13-501( 6); see also Kissinger , 922 S.W.2d at 489. Acco rdi ngly, we conclude that , on remand, the tr

ial court may

not apply enhancement fa

ctor (7) to the defendant’s conviction of aggravated sexual battery. However, our supreme court ha

s previously
st ated t hat “enhancement factor (7), though essential to a finding of sexual battery or aggravated

sexu al batter y, is not an element of rape or aggrava ted 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 somelength and prior

to penetrating h

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

ant gave the vic

tim twenty dol

lars and told

her “thanks.” We conclude that there is sufficient evidence in the record to warr

ant the applicatio

n of this enhance

ment factor to

enhance the defendant’s sentence for rape of a child. See Griffis , 964 S.W.2d at 602; Stat e v. Da vid 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 forego

ing, we conclud

e that the c onviction on count one of aggravated

sexual battery

andon 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