IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs August 7, 2012

STATE OF TENNESSEE v. MICHAEL McVAY

Direct Appeal from the Criminal Court for Shelby County

No. 10-02031 Carolyn Wade Blackett, Judge

No. W2011-02511-CCA-R3-CD - Filed May 2, 2013

A Shelby County jury convicted Defendant, Michael McVay, with rape of a child, aggravated

sexual battery, rape, and sexual battery by an authority figure. The trial court sentenced

Defendant to serve 25 years for rape of a child, 20 years for aggravated sexual battery, 20

years for rape, and 10 years for sexual battery by an authority figure. The trial court ordered

all sentences to run consecutively, with a 100% release eligibility for the first three counts -

child rape, aggravated sexual battery, and rape, and a 35% release eligibility for count four,

sexual battery by an authority figure, for an effective sentence of 75 years in the Department

of Correction. On appeal, Defendant presents the following issues: (1) the trial court erred

by excluding evidence of the victim’s sexual behavior; (2) the trial court erred by excluding

evidence of the victim’s prior complaint of sexual assault; and (3) the trial court erred by

imposing an excessive sentence. Additionally, the State contends the trial court improperly

sentenced Defendant on two of his four convictions. After thorough review, we affirm

Defendant’s convictions. However, the trial court’s sentencing order is vacated in part and

this case is remanded for further proceedings in accordance with this opinion.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the

Criminal Court Affirmed in Part; Vacated in Part; Remanded in Part

THOMAS T. WOODALL,J., delivered the opinion of the court, in which NORMA MCGEE OGLE

and ROGER A. PAGE, JJ., joined.

Brett B. Stein, Memphis, Tennessee, for the appellant, Michael McVay.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney

General; Amy P. Weirich, District Attorney General; Carrie Shelton, Assistant District

Attorney General; and Brooks Yelverton, Assistant District Attorney General, for the

appellee, State of Tennessee.
OPINION

I. Background

In order to protect the identity of the victim, we will refer to her by initials, T.M. She

was seventeen years old at the time of trial and Defendant was her step-grandfather. The

evidence presented at trial, viewed in the light most favorable to the State, established that

Defendant sexually abused T.M. over a span of five or six years, beginning when she was

approximately eight or nine years old and ending in August 2008.

A. Pretrial Motion

On the day of trial, the prosecutor moved the trial court to “prohibit the defense from

asking any questions of the victim, [T.M.], about any type of sexual partner, sexual acts,

anything related to any other incidents other than the incidents involving the Defendant.”

The prosecutor explained to the court that Defendant had not complied with the notice

requirement of Tennessee Rule of Evidence 412 for admission of this evidence. Defense

counsel responded that the testimony was necessary to present Defendant’s theory of the case

to the jury. Defense counsel argued that Defendant sought to prove that T.M. was having sex

with neighborhood boys, that Defendant threatened to tell her mother about it, and that

T.M.’s accusations against Defendant only came about after Defendant threatened to tell

T.M’s mother about her sexual activity. The trial court ruled in favor of the State. The trial

court explained:

[COURT]: [t]here is no official notice. The only thing I can say is that it

would be–it would seem permissible by this Court that the facts came in that

she had young men in the house, but anything that relates to any sexual matters

or sexual conduct or anything like that would not be allowed, but if there was

a number of people over there and her, you know attitudes, conduct, whatever

was such that he told her he would tell her mother, then that is just a factual

piece of evidence, but it has nothing, and it cannot have anything to do with

sexual conduct.

* * *

But understand what I am saying. Based upon the rule that has been cited,

anything about sexual conduct is not going to be permitted. You can set it up

she was there or she was - or had a lot of boys there or whatever, but that does

not lead to sexual misconduct.

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B. Trial

State’s Proof

At trial, T.M. testified she had known Defendant her entire life and considered him

her grandfather. T.M. testified she moved to Memphis when she was eight years old and first

lived with her paternal grandparents. Later, she moved with her mother into her maternal

grandmother’s and Defendant’s home on Valleydale. She and her mother lived with her

grandmother and Defendant off-and-on for approximately two to three years. During this

time span, both T.M.’s mother and grandmother worked while Defendant was unemployed.

Consequently, T.M. was regularly left solely under Defendant’s supervision both before and

after school at her grandparent’s house.

T.M. testified that Defendant began touching her inappropriately when she was a

fourth-grade student at Crump Elementary School when she was either eight or nine years

old. When describing the first time Defendant touched her, T.M. testified he offered her

“Hot Fries,” or other candies and snacks sold by her grandmother to children in the

neighborhood. Defendant asked her to accompany him to the bedroom he shared with her

grandmother. T.M. testified that as she and Defendant sat on the bed together and watched

television, he reached under her shirt and touched her breasts with his hands and grabbed the

cheek of her buttocks from the outside of her pants. T.M. testified that she asked Defendant

to stop, and she left her grandparents’ bedroom, went back to her room, and shut the door.

After this first incident, similar or nearly identical events occurred almost daily when

Defendant stayed with T.M. She explained that when Defendant fondled her, he would give

her either money or snacks. T.M. testified that she told no one about Defendant’s touching

because she thought that no one would believe her and also because he gave her money

collected by her grandmother from sales of candy and other treats. T.M. testified

Defendant’s sexual abuse at the Valleydale address was limited to touching her breasts and

buttocks.

After T.M. and her mother moved out of her grandparent’s house on Valleydale and

were living on their own, T.M.’s grandmother and Defendant also moved from the house to

another home on Bryndale in Memphis. When T.M’s mother worked a second job in the

afternoon and evenings, T.M went over to that house to be watched by Defendant after

school. T.M. testified that she was twelve years old and enrolled at Hickory Ridge Middle

School the first time she performed oral sex on Defendant. She testified that while she was

sitting on her grandmother’s bed one day, Defendant approached her while touching his

penis, asked her to perform oral sex on him, and told her to “suck on it for a little bit.” T.M.

said Defendant pushed her head down, and she began performing oral sex on him. T.M.

testified that when she finished performing oralsex on Defendant, he masturbated and wiped

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off his ejaculate with a bath towel. T.M. testified that after this incident Defendant gave her

$20, and he forced her to perform oral sex on him in a similar fashion on another occasion

after she had entered high school. She also described a single encounter where Defendant

pulled down her pants and underwear and performed cunnilingus on her. Although she could

not recall the exact amount, T.M. testified Defendant gave her money after he completed the

act.

T.M. testified that on August 11, 2008, she and Defendant were alone at her

grandparents’ house. She testified that as she watched television in her grandparents’

bedroom, he came into the room naked, except for a brown plastic “Kroger” grocery sack on

his penis. T.M. testified that Defendant physically straddled her on the bed and began

rubbing her breasts, and that while straddling her, he told her “if you let me stick it in four

times, I’ll give you $100.” She testified that although she pushed Defendant away, he

persisted and continued to offer her money for intercourse, stating “just let me stick it in

once.” T.M. testified that Defendant’s penis touched her thigh while he was on top of her

and that he unbuttoned her pants and pulled up her shirt. T.M. denied Defendant placed his

penis inside of her vagina on August 11 or on any other occasion. She testified she

remembered the exact date of this incident because it was her friend’s birthday. Additionally,

T.M. identified a mark particular to Defendant’s body. T.M. testified that Defendant had a

pigmentation “spot on his bottom lighter than” the rest of his skin.

A few weeks after the August 11 incident, T.M. conversed with her friend Tesharia

Walls while the two girls washed dishes. T.M. testified that during this conversation, she

began to cry and told Tesharia about Defendant’s abuse. T.M. explained that the next

conversation she had about Defendant’s abuse occurred via text message with Tarshunia

Walls, Tesharia’s older sister. T.M. testified that Tarshunia Walls was living with her and

her mother at the time. T.M. testified the two girls texted back and forth about the abuse and

that Tarshunia Walls showed T.M.’s mother the text message conversation. T.M. testified

that her mother, Monica Myart, spoke to T.M. about the text messages and that she told her

mother about Defendant’s abuse. Following the conversation with her mother, she and her

mother reported the abuse to police.

Tesharia Walls testified that T.M. was one of her best friends and that she had known

T.M. her entire life due to the close relationship between her mother, Tashonda Walls, and

T.M.’s mother. Tesharia testified thatshe recalled T.M.’s confiding in her about Defendant’s

abuse while washing dishes in August 2008. She testified that on that day, T.M. told Monica

Myart that she did not want to go over to her grandparent’s house. Tesharia testified that

while washing dishes, T.M. started crying and that she asked T.M to explain why she did not

want to go to her grandparents and why she was so upset. Tesharia testified that T.M. told

her, “my grandma’s husband, he been touching on me and stuff . . . like he be raping me and

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stuff,” and “don’t tell nobody because I don’t want to start family issues, and I don’t want

people to think that I’m lying.” Tesharia testified that a few days later she told her sister

what T.M. had told her. A few days after that, she and her sister told their mother, Tashonda

Walls, what T.M. had told her.

Tarshunia Walls testified that she lived with T.M. and Monica Myart in August 2008.

Tarshunia testified that her sister, Tesharia Walls, talked to her about a secret that T.M. told

her not to tell. Tarshunia testified that after talking to her sister, the two girls went to their

mother, Tashonda Walls, and explained the accusations T.M. had made against Defendant.

Tarshunia denied conversing with T.M about the accusations by text messages, and testified

these conversations were always “face-to-face.” Rather, Tarshunia testified, after speaking

with her mother, her mother called T.M. and spoke to her about the allegations directly.

Tarshunia further testified she spoke to T.M.’s mother the following Monday but merely

provided her a hypothetical question about the ordeal, namely asking her, “What if I had this

friend that went through these problems, what would you do?”

Tashonda Walls described T.M. as her “best friend’s daughter.” She testified she had

known T.M. since birth and that her girls had grown up with T.M. Tashonda testified her

daughters Tesharia and Tarshunia called her on the telephone and told her what T.M. had

initially told Tesharia. Tashonda testified she immediately called T.M., spoke with her about

the allegations, and that T.M. explained Defendant’s sexual abuse in detail.

Monica Myart, T.M.’s mother, testified that she and T.M. moved to Memphis in

August of 2002 when T.M. was eight years old. Monica testified that Defendant was her

stepfather and that she and T.M. lived with her mother, Rochelle McVay, and Defendant on

Valleydale and on Bryndale in Memphis off-and-on for a number of years. She testified that

she regularly dropped T.M. off at her mother’s and Defendant’s home before T.M. attended

school and that when she began working a second job, T.M. regularly spent the afternoons

and evenings after school at the house alone with Defendant until 10:00 p.m. Monica

testified that Tarshunia Walls first told her of T.M.’s allegations against Defendant but that

she had already noticed that T.M. did not want to go over to Defendant’s house to stay after

school. She testified that after learning of T.M.’s accusations against Defendant, she spoke

to T.M. about them but that T.M. did not explain the allegations in detail. Monica testified

that after speaking to T.M., she took her to the police without having spoken to her mother

or Defendant. On cross-examination, Monica testified that prior to T.M.’s allegations,

Monica’s mother called and told her that she could not bring T.M. to her house because T.M.

was having visitors against the wishes of Monica’s mother. Later Monica’s mother called

and said T.M. could stay with Defendant again. The State rested its case after Monica

Myart’s testimony.

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Defendant’s Proof

Defendant testified and also presented the testimony of Rochelle McVay. Rochelle,

Defendant’s wife and T.M.’s grandmother, testified that she and Defendant moved to

Memphis in October 2003 and that her daughter, Monica Myart, and T.M. lived with her and

Defendant for a period of time. She testified that she and her daughter worked different

schedules and that T.M. stayed at her house alone with Defendant when both women were

working. Rochelle testified that in July 2008, she stopped allowing T.M. to come to her

house because Defendant told her T.M. was “keeping a driveway full of young guys.” On

cross-examination, Rochelle confirmed that Defendant and T.M. were at her house alone on

August 11, 2008.

During histestimony, Defendant unequivocally denied T.M.’s accusations. Defendant

testified that he had never touched T.M. “no kind of way” and that he was unaware of T.M.’s

accusations against him until his arrest. He testified that before T.M.’s accusations, he

threatened to tell T.M.’s mother about boys hanging around the house and that he had called

his wife several times to complain about T.M. keeping boys in the driveway. Defendant

testified that when T.M. was younger, T.M. was permitted to take snacks kept in the home

so long as her mother paid for them. Additionally, Defendant gave T.M. money when she

received good grades on her report card. As to T.M.’s ability to identify body markings

particular to Defendant, he explained that T.M. saw him naked once when she burst into the

bathroom while he was taking a shower at a time she and her mother lived with him and his

wife.

II. Analysis

In his first issue, Defendant asserts that the trial court erred by “refusing to allow

testimony of [T.M.’s] sexual behavior with other young males” during the time period she

was visiting Defendant. Defendant argued that the evidence was not offered to prove T.M.’s

“propensity for prior sexual behavior” but was offered to prove T.M. had a motive to make

accusations against Defendant because Defendant had complained about T.M.’s conduct with

the boys. In his brief on appeal, Defendant combined his argument on his first issue with the

argument on his second issue. The second issue asserts the trial court erred by prohibiting

Defendant’s counsel from asking T.M. on cross-examination whether she “had made a prior

complaint against an unknown black male who allegedly made sexual advances (i.e.

touching) toward [T.M.].”

Relying upon State v. Brown, 29 S.W.3d 427 (Tenn. 2000) and State v. Flood, 219

S.W.3d 307 (Tenn. 2007), Defendant argues that the trial court’s refusal to allow Defendant

to submit the challenged testimony violated his “absolute right to put on any and all proof

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that is relevant and critical to his defense.” After the jury had been selected and sworn, the

trial court held a jury out hearing on the State’s motion in limine for an order prohibiting the

defense from eliciting testimony about T.M.’s sexual behavior with any person other than

Defendant. The basis for the State’s motion was that Defendant had not complied with the

required procedures of Tennessee Rule of Evidence 412. Defendant did not contest the fact

that he had not complied with the notice requirement of Rule 412(d). This rule requires the

following procedure when a defendant desires to offer evidence of sexual behavior of a

victim:

(d) Procedures – If a person accused of an offense covered by this

rule intends to offer under subdivision (b) reputation or opinion evidence

or under subdivision (c) specific instances of conduct of the victim, the

following procedures apply:

(1) The person must file a written motion to offer such

evidence.

(i) The motion shall be filed no later than

ten days before the date on which the

trial is scheduled to begin, except the

court may allow the motion to be made

at a later date, including during trial, if

the court determines either that the

evidence is newly discovered and could

not have been obtained earlier through

the exercise of due diligence or that the

issue to which such evidence relates has

newly arisen in the case.

(ii) The motion shall be served on all

parties, the prosecuting attorney, and

the victim; service on the victim shall

be made through the prosecuting

attorney’s office.

(iii) The motion shall be accompanied by a

written offer of proof, describing the

specific evidence and the purpose for

introducing it.

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Tenn. R. Evid 412(d)(1)(i)-(iii).

During argument in the trial court, Defendant’s counsel indicated that the defense

wanted to elicit testimony from Defendant about T.M.’s sexual behavior with boys who came

to Defendant’s home. He argued that the State had notice of the evidence through part of

Defendant’s statement to law enforcement. Specifically, Defendant’s counsel stated:

I mean, to sum it up, they had [Defendant’s] statement where they asked

him specifically, “What do you think she would be telling” - - you know,

“making up this story against you,” and he, in his statement to the police

officer, which is part of his statement, as to the effect that, “I told her that

I would be telling - - ‘I’ll be telling your mother, you know, about whatever

you’re doing, you’re having sexual acts, or your conduct in my house with

these boys.’” [A]nd that is the heart and soul of this - - that’s basically what

this case is all about, not specifically the fact that she had - - that we go into

detail, names, addresses and everything about the boys or anything else like

that, but it’s her conduct leading him - - the reason why that should go

ahead and make these things up. That’s all State’s proof, and as far as

notice is concerned, the State had the notice by the statement. They asked

him specially why she would make it up. That’s for the jury to determine.

The State announced that it did not intend to offer into evidence Defendant’s

statement to law enforcement officers. The trial court ruled that defense counsel could not

elicit any testimony about the victim’s sexual behavior with any persons other than

Defendant because of the failure of Defendant to comply with the requirements of Rule 412.

However, the trial court did allow Defendant’s counsel to elicit testimony that T.M. had a

motive to make false allegations against Defendant due to Defendant’s complaints about

inappropriate conduct by T.M., without mentioning any sexual behavior.

As to a defendant’s right to present a defense, taken in context with procedural

requirements for the presentation of evidence, oursupreme courtstated in State v. Flood, 219

S.W.3d 307 (Tenn. 2007),

Exclusions of evidence may violate the Due Process Clause of the

Fourteenth Amendment of the United States Constitution even if the

exclusions comply with rules of evidence. Principles of due process require

that a defendant in a criminal trial have the right to present a defense and to

offer testimony. See Chambers v. Mississippi, 410 U.S. 284, 294, 93 S.Ct.

1038, 35 L.Ed.2d 297 (1973); State v. Brown, 29 S.W.3d 427, 431 (Tenn.

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2000). In Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d

1019 (1967) the United States Supreme Court stated:

The right to offer the testimony of witnesses, and to

compel their attendance, if necessary, is in plain terms the

right to present a defense, the right to present the defendant’s

version of the facts as well as the prosecution’s to the jury so

it may decide where the truth lies. Just as an accused has the

right to confront the prosecution’s witnesses for the purpose

of challenging their testimony, he has the right to present his

own witnesses to establish a defense. This right is a

fundamental element of due process of law.

388 U.S. at 19, 87 S.Ct. 1920.

However, the right to offer testimony is not absolute: “In the exercise

of this right, the accused, as is required of the State, must comply with

established rules of procedure and evidence . . . .” Chambers, 410 U.S. at

302, 93 S.Ct. 1038. Rules of procedure and evidence are designed to assure

fairness and reliability in the criminal trial process. Id. So long as the rules

of procedure and evidence are not applied arbitrarily or disproportionately

to defeat the purposes they are designed to serve, these rules do not violate

a defendant’s right to present a defense. United States v. Schaeffer, 523

U.S. 303, 308, 188 S.Ct. 1261, 140 L.Ed.2d 413 (1998); [ ] see also Holmes

v. South Carolina, 547 U.S. 319, 126 S.Ct. 1727, 1731, 164 L.Ed.2d 503

(2006); see e.g., Chambers, 410 U.S. at 302, 93 S.Ct. 1038 (rejecting as

“narrow and unrealstic” the evidentiary rule that did not allow defendant to

impeach his own witness).

Flood, 219 S.W.3d at 315-16.

In this case we agree with the State’s argument that testimony about T.M.’s sexual

behavior was not critical to the Defendant’s defense of the charges. The State correctly

points out that Defendant was allowed to present proof through T.M.’s mother that T.M. was

not allowed to go to Defendant’s house for a period of time because of problems with “some

kids” coming over to Defendant’s house. Defendant’s wife testified that Defendant

complained to her about T.M. “keeping [Defendant’s] driveway full of young guys.”

Defendant testified that he told T.M. that he would tell her mother about the young men who

kept coming to Defendant’s home when T.M. was there.

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Defendant also complains that the trial court erred by not allowing his counsel to

cross-examine T.M. concerning her prior complaint (apparently about being sexually

assaulted) against an “unknown black male” when she was in the seventh grade, concerning

an event that occurred when she was seven years old. The State objected on the grounds that

the evidence was inadmissible under Tennessee Rule of Evidence 412. Defense counsel

represented to the trial court that the complaint was made to T.M.’s uncle, Ken. Defense

counsel argued the relevance of the proposed testimony but did not directly argue against the

basis of the State’s objection. In his argument on appeal, however, Defendant asserts that

the excluded proof would have been testimony of her complaint against her uncle concerning

improper sexual activity. Defendant did not argue that T.M.’s purported prior complaint of

sexual misconduct, whether to T.M.’s uncle or about T.M.’s uncle was a false complaint.

Defendant argues the evidence would be admissible to attack T.M.’s credibility. Without

some indication that the purported prior complaint was a false complaint, the relevancy in

the trial is questionable. Accordingly, even if the trial court erred by excluding the testimony

pursuant to Tennessee Rule of Evidence 412, the error would be harmless. Defendant is not

entitled to relief on his first two issues.

In his last issue, Defendant challenges the sentences imposed by the trial court.

Defendant was found guilty by the jury, as charged in the indictment, and was subsequently

sentenced by the trial court as follows:

Count 1 Rape of a Child 25 years, Range I Standard Offender,

Class A felony Child Rapist 100% service of sentence

Count 2 Aggravated Sexual Battery 20 years, Range II Multiple Offender,

Class B felony Violent 100% service of sentence

Count 3 Rape 20 years, Range II Multiple Offender,

Class B felony Violent 100% service of sentence

Count 4 Sexual Battery by an Authority 10 years, Range II Multiple Offender

Figure, Class C felony

All sentences were ordered to be served consecutively to each other, for a total

effective sentence of 75 years. Each judgment ordered Defendant to be placed on the sexual

offender registry and to be subjected to community supervision for life. While

acknowledging that the trial court has the discretion to order consecutive sentencing when

a defendant is convicted of two or more offenses which involve sexual abuse of a minor,

Defendant fails to submit any argument as to how the trial court abused its discretion in

ordering consecutive sentencing. Regarding the lengths of the individual sentences,

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Defendant’s sole argument is that the trial court “did not adequately weigh [ ] the mitigating

circumstances as opposed to the enhancement circumstances.” Defendant does not identify

any mitigating factors which were not “weighed” appropriately. In fact, the trial court found

no applicable mitigating factors. Defendant fails to list any mitigating factors which should

have been applied by the trial court other than the following statement in his brief, the

meaning of which is not clear:

One of the most important factors that [Defendant] asserted in the

[t]rial [c]ourt was due to the fact that there was no indication of any type of

sexual convictions or any inappropriate contact with a minor.

Asto the specific sentencing issue raised on appeal by Defendant, regarding sentences

for the offenses in Counts 1 (rape of a child), Count 3 (rape) and Count 4 (sexual battery by

an authority figure), all of which occurred after June 7, 2005, the effective date of when the

General Assembly made significant amendments to the Tennessee Criminal Sentencing

Reform Act of 1989, the following law clearly applies. In the 2005 amendments, the General

Assembly rewrote Tennessee Code Annotated section 40-35-401 and deleted the language

which had previously authorized a defendant to appeal the trial court’s weighing of

enhancement and mitigating factors. See Tenn. Code Ann. § 40-35-401(b)(2006). By doing

so, “the General Assembly intended that a defendant may no longer allege as grounds for

relief on appeal that the sentencing court erroneously weighed sentencing enhancement

factors.” State v. Edward Charles Tennial, No. W2006-00999-CCA-R3-CD, 2007 WL

2935625, at *3 (Tenn. Crim. App. Oct. 9, 2007). Accordingly, Defendant cannot be afforded

relief on appeal for his argument that the trial court failed to properly weigh mitigating and/or

enhancement factors.

As to the length of the sentences for the convictions in Counts 1, 3, and 4, our review

must be in accordance with our supreme court’s recent decision in State v. Bise, 380 S.W.3d

682 (Tenn. 2012). In Bise, the court concluded:

In summary, the 2005 amendments to the 1989 Act were intended to bring

our sentencing scheme in line with the decisions of the United States

Supreme Court in this area. Accordingly, when the 2005 amendments

vested the trial court with broad discretionary authority in the imposition of

sentences, de novo appellate review and the “presumption of correctness”

ceased to be relevant. Instead, sentences imposed by the trial court within

the appropriate statutory range are to be reviewed under an abuse of

discretion standard with a “presumption of reasonableness.”

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Id. at 708. Accordingly, we now review a defendant’s challenge to the

sentence imposed by the trial court under an abuse of discretion standard

with a “presumption of reasonableness.” Id.

Tennessee’s Sentencing Act provides:

(c) The court shall impose a sentence within the range of punishment,

determined by whether the defendant is a mitigated, standard, persistent,

career, or repeat violent offender. In imposing a specific sentence within

the range of punishment, the court shall consider, but is not bound by, the

following advisory sentencing guidelines:

(1) The minimum sentence within the range of punishment is the

sentence that should be imposed, because the general assembly set

the minimum length of sentence for each felony class to reflect the

relative seriousness of each criminal offense in the felony

classifications; and

(2) The sentence length within the range should be adjusted, as

appropriate by the presence or absence of mitigating and

enhancement factors set out in §§ 40-35-113 and 40-35-114.

T.C.A. § 40-35-210(c)(1)-(2) (emphasis added).

In conducting a review of a sentence, this Court must consider (a) the evidence

adduced at the trial and the sentencing hearing; (b) the presentence report; (c) the principles

of sentencing and arguments as to sentencing alternatives; (d) the nature and characteristics

of the criminal conduct involved; (e) evidence and information offered by the parties on the

enhancement and mitigating factors set forth in Tennessee Code Annotated sections 40-35-

113 and 40-35-114; (f) any statistical information provided by the Administrative Office of

the Courts as to Tennessee sentencing practices for similar offenses; and (g) any statement

the defendant wishes to make in the defendant’s own behalf about sentencing. T.C.A § 40-

35-210(b); see also State v. Carter, 254 S.W.3d 335, 343 (Tenn. 2008); State v. Imfeld, 70

S.W.3d 698, 704 (Tenn. 2002).

A trial court is mandated by the Sentencing Act to “impose a sentence within the

range of punishment.” T.C.A § 40-35-210(c). A trial court, however, “is no longer required

to begin with a presumptive sentence subject to increase and decrease on the basis of

enhancement and mitigating factors.” Carter, 254 S.W.3d at 346. Therefore, an appellate

court is “bound by a trial court’s decision as to the length of the sentence imposed so long

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as it is imposed in a manner consistent with the purposes and principles set out in sections

-102 and -103 of the Sentencing Act.” Id.

A trial court’s “failure] to appropriately adjust” a sentence in light of applicable, but

merely advisory, mitigating or enhancement factors, is no longer an appropriate issue for

appellate review. Id., 254 S.W.3d at 345 (citing State v. Banks, No. W2005-02213-CCA-R3-

DD, 2007 WL 1966039, at *48 (Tenn. Crim. App. July 6, 2007) (noting that “[t]he 2005

amendment [to the Sentencing Act] deleted appellate review of the weighing of the

enhancement and mitigating factors, as it rendered the enhancement and mitigating factors

merely advisory, not binding, on the trial courts”). In Bise the Court concluded:

We hold, therefore, that a trial court’s misapplication of an enhancement or

mitigating factor does not invalidate the sentence imposed unless the trial

court wholly departed from the 1989 Act, as amended in 2005. So long as

there are other reasons consistent with the purposes and principles of

sentencing, as provided by statute, a sentence imposed by the trial court

within the appropriate range should be upheld.

Bise, 380 S.W.3d at 706.

Defendant does not contest the applicability of any advisory enhancement factors

utilized by the trial court, and he does not assert that he was improperly sentenced as a Range

II offender in Counts 3 and 4. The State, however, correctly points out in its brief that the

trial court’s written “Sentencing Findings of Fact” as to Count 1, rape of a child, indicates

that the trial court set a sentence of 25 years, as mandated by statute (Tennessee Code

Annotated section 39-13-522). The mandatory minimum sentence of 25 years for a rape of

child conviction applies only to offenses which occur on or after July 1, 2007. T.C.A. § 39-

13-522(b)(2)(A) (effective July 1, 2007). The offense in Count 1 occurred when T.M. was

twelve years old, during the year of July 26, 2005 - July 25, 2006. Therefore, the mandatory

minimum sentence provision could not apply. However, under Bise, the maximum Range

I sentence of 25 years is justified.

However, as to the conviction in Count 2 for the offense of aggravated sexual battery,

the proof showed and the State implicitly conceded in its “election of offenses” that the crime

occurred when T.M. was eight or nine years old. T.M. was nine years old from July 26, 2002

through July 25, 2003. Without an executed waiver of his ex post facto rights, Defendant

could not be sentenced for the offense in Count 2 under the Sentencing Act as amended in

2005. See Tenn. Code Ann. § 40-35-210. The conviction in Count 2 is affirmed but the

sentence in Count 2 for aggravated sexual battery is vacated and the case is remanded for a

new sentencing hearing in compliance with Tennessee Code Annotated section 40-35-210

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and Blakey v. Washington, 542 U.S. 296 (2004). See State v. James Albert Taylor, No.

E2007-02878-CCA-R3-CD, 2009 WL 396076, at *8 (Tenn. Crim. App. Feb. 17, 2009).

CONCLUSION

The convictions and sentences in Counts 1, 3, and 4, and the order of consecutive

sentencing in all counts are affirmed. The conviction in Count 2 is affirmed. The sentence

in Count 2 is vacated and that count is remanded to the trial court for a new sentencing

hearing in compliance with this opinion.

_________________________________

THOMAS T. WOODALL, JUDGE

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