# FILED
September 30, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE APRIL 1998 SESSION

STATE OF TENNESSEE, * C.C.A. # 01C01-9705-CC-00177 Appellee/Appellant, * DICKSON COUNTY VS. * Hon. Robert E. Burch, Judg e DELBERT LEE HARRIS, * (Aggravated Assault, Rape, Rape of a Child, and Attempt to Commit Appellant/Appellee. * Sexual Ba ttery)

For Appellant/Appellee : For Appellee/Appellant : Jack L. Garton, Attorney John Knox Walkup White, Regen & Garton, PLC Attorney General and Repor ter 107 Professio nal Building 110 North Mathis Drive Deborah A. Tullis P.O. Box 190 Assistant Attorney Gener al Dickson, TN 37056-0190 Criminal Justice Div ision Cordell Hull Buildi ng, Second Floor 425 Fifth Avenue North Nashville, TN 37243 Dan Mitchum Alsobrooks District Attorney General Robert S. Wilson Assistant District A

ttorney General Twenty-Third Judicia l District P.O. Box 580 Charlotte, TN 37036

OPINION FILED:__________________________

AFFIRMED
GARY R. WADE, JUDGE2 OPINION The defendant, Delbert Lee Harris,was convicted of agg ravated assault, rape, rape of a child,and attempted sexual battery . The trial court imposed sentences of four years for aggravated assault, ten years for rape, twenty-two years for rape of a child, and eleven months and twenty-nine days for attem pt to commit sexual battery. The sentence for rape is to be served consecutively to the sentence for rape of a child for an effective sent ence of thirty-two y

ears. The defendant was on probation for a prior cri me at the time of the offenses. All sentences are to be served consecutivel

y to the earlier term.
In this appeal of right, the de fendant challenges the sufficiency of the evidence and claims that the sentences are excessiv e. In its separate appeal, the state asserts that the tri al court erred by estab lishing a Range I, thi rty percent release eligibilit

y date for the twenty-

two year sentence for r ape of a child.
There is merit to the appeal by the state. The judgments of conv iction are affirmed. The causes are remanded for r esentencing.
By the late summer of 1995, the defend ant and his wife, Diane Harris, had been married almost ten years. There were two minor children born to their marriage. Ms. Harr

is had three children by a prior marriage; tw

o, including the minor female victim, lived i n the Harris residence.The victim was born September 10, 1982.
At approximately 3:40 A. M. on September 17, 1995, the defendant awoke the victim, di rected her to an upstairs pl ayroom, and began to remov e her shorts. Meanwhile, M s. Harris woke from her sleep, saw the vic

tim being led3 upstairs by the defendant, and foll owed them. The victim beg an to cry as her clothes were being r

emoved by the defendant. At that poi nt, Ms. Harris inter vened, grabbed her daughter, and too k her into the kitchen. She then called 911, reported that her thirteen-year-

old daughter had been molested, and informed the dispatcher that the defendant had taken possession of a g un. Afterward, Ms. Har ris woke her seven-year-old daug hter so all three of them could l eave the residence. The defendant first threatened to commit sui cide and then made threats to Ms.Harris. The victim and her you nger siste r heard th e defen dant say, "You f__ ____ up n ow" to Ms. Harris. The defendant then pointed a gun at her chest from l ess than a foot away. When he pulled the trigger, the bullet jammed. The defendant then w ent upstairs to get a second gun. As he did so, Ms. Harris removed her two daughters from the residence and hid them behind a pla yhouse in the front yard until the police arrived.

Ms. Harris then w ent to the outside window of her sons' bedroom. The boys were asleep. When Ms. Harr is saw the defendant enter the bedr oom, she ran into some tall weeds at the rear of the house, hid, and began t o pray. Armed with a rifle, the defendant then walked out of the residence and called for M s. Harris and her daughters, promising that he would not harm them and th at he just wanted to talk.
Four police vehicles were dispatched to the H arris residence. Deput y Wayne Heflin, who arrived first, was met by the victim and her sister. They were described by Deputy B . J. Gafford as "very upset ... hollering that their daddy had taken a weapon and run into the woods...." Deputy Hefli n also learned from the victim that the defendant had touched her private parts and had done so before. When the victim reported that he r younger brothers were still inside, Deputies Heflin4 and Gaf ford rem oved the b oys from t he reside nce. As th e deputy s tarted to drive away, Ms. Harri s, described as "really afraid," approached the police v ehicle and reported that the defendant had tried t o shoot her. She told the officer that she feared that the defendant, who had a scope on his rifle, might shoot her from the woods.

Later, Dr. David Br idges examined the vi ctim, found her to be anxious and depressed, and learned her account of what had occurred at the Harris residence. The victim r eported to Dr. Bridges that the defendant had forced her to engage in sexual int

ercourse in May of 1995. Sh e explained that Ms. Har ris did not know about the earlier i ncident.

Detective Tim Eads of the Dic kson County Sheriff's Department recovered two 30/30 Winchester shel ls from the Harris resi dence. He described one of the shel ls, which was found on the defendant's bed in the mas

ter bedroom, as "bent and [with] a scrap mark on the side like an abrasion." Detective Eads' search took place about five days after the offense.

The victim testified that just after she completed the school year in 1995, the defendant took her outside, pla ced her on a sleeping bag in the yard, and forced his penis into her v agina. She also described a second rape which occu rred on September 12, 1995. She recalled that the defendant wore a condom as he penetrated her vagina. Finally, she recounted the September 17, 199 5, occurrence when the defendant "was try ing to pull my clothes

off and my mom walked in and found him there and she went and cal led the cops...." She testified that the defendant "tried to shoot my mom."5 The defendant testified tha t he had married Ms. Harris in Maryland in 1986. The family moved to Tennessee a month later. He stated that both he and Ms. Harris had alcohol

problems but she quit dri nking after the move to Tennessee. The defendant claimed that he and Ms. Har ris had marital problems du e to her jealousy, possessiv

eness and disapproval of his spending so much time coaching softball, baseball, and football. H e testified that he had attempted to commit suicide on one occasion before the series of incidents that led to his ar rest. He denied that he raped the victim either in the spring of 1995 or on September 12 o f that year. He described the September 17 inci dent as an altercation initi ated by Ms. Harris.The defendant

contend ed that h e took po ssessi on of the g un to "at tempt to kill my

self" and explained that he went outside so that Ms. Harr is could see. He testified that when the pol ice arriv

ed, he simply

walked up a

hill and st

ayed there fo r a time before eventually going to a friend's house. The defendant maintaine d that he returned to his own residence when he saw that his friend's residence lights were off. He stayed there until September 20. He testifie d that he then drove to Ms. Harris's grandmother

's house in Nashvill e to say goodbye to hi s wife and the children. The defendant remembered tell ing Ms. Harris th at she could have the residence and recalled g iving the boys "a hug bye." He then returned to M aryland where he later learned that there were criminal warrants against hi m in this state.

I Initially, the defendant compla ins that the proof was insuffici ent to establish the offense of aggrav ated assault because Ms. Har ris failed to testify that she feared imminent bodily inj ury. He argues that he went to get the rifle i n order to commit suicide and did not inten d to place Ms. Harris in danger. The defendant argues that there was no force or coercion invo lved as was necessar y for either the rape or the rape of a child conv ictions. Also, the defendant ass erts that he did not6 attempt to commit a sexual battery because there was no proof of threat on his part or of resistance on the part of the v ictim.
On appeal, the state is entitl ed to the strongest legi timate view of the evidence and all reasonabl e inferences which might be drawn therefrom. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). The credibilit y of the witnesses, the weight to be given their testimony, and the reconciliation of conflicts in the evidence are matters entrusted excl usively to the jur y as the trier of fact. Byrge v. State , 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978). This cour t may not re-evaluate the evidence nor substitute i ts inferences for those drawn by the trier of fact from the evidence. Farmer v. State , 574 S.W.2d 49 (Tenn. Crim. App. 1978); State v. Graves , 493 S.W.2d 474 (Tenn. 1973). A jury ver dict, approved by the t rial judge, accredits the testimony of the state's witnesses and resolves all conflict s in the testimony in favor of the theor y of the state. State v. Hatchett , 560 S.W.2d 627, 630 (Tenn. 1978). A convictio n may only be set aside w hen the reviewing court finds that the "evidence is insufficient to support the f inding by the trier of fact of guilt beyond a reasonable doubt." Tenn. R . App. P. 13 (e); Jackson v. Virginia , 443 U.S. 307 (1979).
One "who intentionally or knowingly c

auses another to reasonably fear imminent bodily injury

" and either "causes serious bodily injury to another" or "uses or displays a deadly

weapon" commits an aggr avated assault. Tenn. Code Ann. §§ 39-13-101, -102. Here, of cour se, Ms. Harris testi

fied that the defendant pointed and attempted to fire a gun into her chest from less than a foot away . She expressed her fear to Deputy Heflin and exhibited fear by hiding from the defendant on the outside of their residenc e. Circumstances war

ranted a finding that the fear was reasonable. The jury also acted within its

prerogative by r

ejecting the7 defendant's assertion that he posses sed the weapon for suicide pur poses only and by accepting the theory of the state.
"Rape" is the "unlawful sex ual penetration of a victim . .. accompanied by ... force or coercion. ... Tenn. Code Ann. § 39-13-503(a) (1). "Coercion" may be accomplished through the use o f parental or custodial authori ty of a child less than fifteen years of age. Tenn. Code Ann. § 39-13-501(1). The defendant, the stepfather of the victim, penetrat ed her once when she was thirteen years old. The victim lived in h is residence at the time and q ualified as being in his custody.

A "rape of a child is the unlaw ful sexual penetration of a v ictim by the defendant ... if such victim is less than thirteen year s of age." Tenn. Code Ann. § 39-13-522(a). The victi m was only twelv e at the end of the school year in 1995 when the first penetration oc curred. Thus, all of the elements of the crime of rape of a child were establi shed by

the proo f.
Sexual battery, a Cl ass E felony, "is unlaw ful sexual contact with a victim by the defendant ... a ccompanied by ... force or co ercion...." Tenn. Code Ann. §§ 39-13-503(a)(1), - 505(a)(b). Attempt, whi ch would reduce sexual battery to a Class A misdemeanor, is define d by Tenn. Code Ann. § 39-12-101. The proof was that the defendant pulled dow n the victim's shorts

at 3:45 A.M. in the morning while everyone el se in the household was asl eep. The victim stood, "sil ently crying," according to Ms. Har

ris. These and other circumstances five days before w hen the defendant raped the victim corr oborated sexual aggr

ession on the part of the defendant. An attempt is committed wh en, acting with the ki nd of culpability otherwise required for the offense, a defend ant "acts with intent to cause a result that is an element of the offen se, and believes that the conduct will cause the result8 without further conduct on the person's part" or "acts w ith intent to complete a course of action or cause a res ult that would constitut e the offense, under the circumstances surrounding the conduct as the person beli eves them to be, and the conduct constitutes a substanti al step toward the commiss ion of the offense." Tenn. Code Ann. § 39-12-101(a)(2) , (3).

The evidence is sufficient as to each of the crimes.

II Next, the defendant claims that the sentence is excessiv e. In its appeal, the st ate claims the se ntence was inade quate because the trial judge established a Range I, thirty percent release eligibility for the rape of a child sentence.
When there is a challenge to the length, range, or manner of servi ce of a sentence, it is the duty of this court to conduct a de novo review with a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). This pr esumption is "conditioned upon the a ffirmative showing in the record that the tria l court considered the sente ncing principles and al l relevant facts and circumstances." State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991); see State v. Jones , 883 S.W.2d 597 (Tenn. 1994). The Sentencing Commissi on Comments provide that the burd en is on the defendant to show the i mpropriety of the sentence.

Our review req uires an analysis of (1) the evidence, if any, received at the trial and sentencing he aring; (2) the presenten ce report; (3) the princ iples of sentencing and the arguments of counsel relative to sent encing alternatives;(4) the9 nature and characteristic s of the offense; (5) any mitigating or enhancing factors;(6) any statements made by the defendant in his own behalf ; and (7) the defendant's potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40- 35-102, -103, and - 210; State v. Smith , 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).

At the time of these offenses, the presumptiv e sentence was the minimum in the range. Tenn. Code An n. § 40-35-210(c) (amended effectiv e July 1, 1995 to make the presumptive sent ence for a Class A felony the mi dpoint in the range). Should the trial court find mitigating and enhancement f actors, it must start at the presumptive minimum in the range and enhance the sentence bas ed upon any applicable enhancement factors , then reduce the sentence based upon a ny appropriate mitigating

factors. Tenn. Code Ann. § 40-35-210( e). The weight giv

en to each factor is within the trial court's discretion provided that the r ecord supports its findings and it compli es with the Sentencing Act. See Ashby , 823 S.W.2d at 169. The trial court, however, should make specific findings on the record which indicate its application of the sentencing principles . Tenn. Code Ann. §§ 40-35-209 and -210.
As a Range I offender, the defendant was eligible for a sentence of fifteen to twenty-five years for rape of a child. Tenn. Code Ann . §§ 39-13-522(b); 40-35-1 12(a)(1) . Because the off ense occu rred in May o f 1995, the presu mptive sentence is the minimum within the range. Tenn. Code Ann. § 4 0-35-210(c). In the imposition of the twenty-two-year sentence, the trial court determined that there were two enhancement factors : (1) that the crime w as committed to gratify the defendant's desire for pleasure or excitement; and (2) that the defendant abused a position of private trust . Tenn. Code Ann. § 40-35-114(7), (15). A mitigating factor was that the defendant neither caus ed nor threatened serious bodil y injury to the10 child victim. Tenn. Code Ann. § 40-35-113(1). The defendant contends that the "gratification" enhancement facto r was improperly applied because the state, which has the burden of demonstrating that the rape was sexuall y motivated, failed to meet its burden of proof in accordance with the ruling i n State v. Ada ms , 864 S.W.2d 31 (Tenn. 1993). In response, the state asser ts that the trial court di d not rely heavily on the first enhancement factor and gav e little weight to the mitigating factor.

Pleasure or excitement i s not an essential part of the cr ime of rape. For that reason, a sentence may be enhanced if that factor is present

. State v. Hoyt , 928 S.W.2d 935 (Tenn. Crim. App. 1995). The state has the burden of demonstrating that the rape w as due to a sexual desire. State v. Smith , 910 S.W.2d 457 (Tenn. Crim. App. 1995). In our view, the repetition of acts of a sexual na ture suggest a desire for ple asure or excitement. Us e of a condom in a subsequent act and his implementation of methods d esigned to avoid detection by Ms. Harris also suggest a planned crimi nal act undertaken for sexual pleasure. Overall, the circumstances reflected by the record warrant appl ication of the factor.
A Range I sentence for rape is between eight and twe lve years. Tenn. Code Ann. §§ 39-13-503(b); 40- 35-112(a)(2). The presumption is the minimum sentence within the rang e. Tenn. Code Ann. § 40-35-210(c) . The trial court found two enhancement factors: (1) the crime was committed to gratify the def endant's desire for pleasure and exc itement; and (2) the defendant abused a pos ition of private trust. Tenn. Code Ann. § 40-35-114(7), (15). The trial court also found a mitigating factor, that the defendant neithe r caused nor threatened serious bodily injury to the victim. Again, the defendant contends that the state failed to submit proof on the second enhancement factor. In r esponse, the state asserts that the11 trial court imposed a ten- year sentence based primar ily on abuse of a position of private trust and that l ittle weight w as given to the mitig ating factor. For reasons previously stated, we believe the "gr atification" factor should apply

.
As a Range I offender, the defendant was eligible for a sentence of three to six years

for aggravated assault. Tenn. Code Ann. § 39-13-102(b) ; § 40-35- 112(a)(3). The trial cour t determined that use of a firearm w as an enhancement factor and thus imposed a four-year sentence. Tenn. Code Ann. § 40-35-11 4(9). Because the use of a deadly w eapon is an element of aggrav ated assault, the state has conceded that the factor was inappropriately appli ed. Tenn. Code Ann. § 39- 13-103; State v. Treanous L. Davis , No. 01C01-9507-CR-00226 ( Tenn. Crim. App., at Nashville, Feb. 29, 1996).

The state nonetheless asserts that a four-year sentence is ap propriate because the circumstances w ould have warranted the application of Tenn. Code Ann. § 40-35-114(3): that the offense i nvolved more than one v ictim. The state
ar gu es th at th e a ss au lt

of Di an e H ar ri s e nd an ge re d t he tw o c hi ld re n p re se nt . We agree with the state. The defendant attempted to fire the weapon w hen children were present. Even after the escape by Ms. Harr is and her daughter, the defendant remained armed and sought their return. The other children still in the reside nce were at risk. Because an enhancement factor is present, a fo ur-year sentence is appropriate.

Finally, the defendant argues that consecutive sentencing is unnecessary. Prior t

o the enactment of the Criminal Sentenc ing Reform Act of 1989, the limited classifications for the imposition of consecuti ve sentences were set out in Gray v. State , 538 S.W.2d 391, 393 (Tenn. 1976).In that case our supreme1 The first f our crit eria are f

ound in Gray . A fif

th category

in Gray , based on a speci fic number of prior felo ny conviction s, ma y enhanc e the sen tence ra nge bu t is no longe r a listed criterion

. See Tenn. Code Ann. § 40-35-1 15, Sentenci ng Comm ission Comments. 12 court ruled that aggr

avating circumstances

must be present before placement in any one of the classifications. Later, in State v. Taylor , 739 S.W.2d 227 (Te nn. 1987), the court established an additi onal category for those defendants convicted of two or more statutory offenses involving sexual abuse of minors. There were, however, additional words of caution : "[C]onsecutive sentences should not routinely be imposed . . . and . . . the agg regate maximum of consecutiv e terms must be reasonably related to the severity of the offenses inv olved." State v. Taylor , 739 S.W.2d at 230. The Sentencing Commission Comments adopted the cautionary language. Tenn. Code Ann. § 40- 35-115. The 1989 Act is, in esse nce, the codification of the holdings i n Gray and Taylor ; consecutive sentences may be imposed in the discretion of the t rial court only upon a determination that one or more of the following criteria 1 exist:

(1) The defendant is a professional c riminal who has knowingly dev

oted himself to criminal acts as a major source of livelihood; (2) The defendant is an offender whose r ecord of criminal activity

is extensive; (3) The defendant is a dangerous mental ly abnormal person so declared by a c ompetent psychiatrist w ho concludes as a result of an inv estigation prior to sentencing that the defendant's cr iminal conduct has been characterized by a pattern of repetitive or compulsive behavior w ith heedless indifference to consequences; (4) The defendant is a dangerous off ender whose behavior indicates little or no regard for human l ife, and no hesitation about committing a crime in which the risk to human life is high; (5) The defendant is convicted of two (2) or more statutory offenses involv ing sexual abuse of a minor with consideration of the aggrav ating circumstances ari sing from the relationship between the defend ant and victim or victims, the time sp

an of defendant's undetected sexual activity , the nature and scope of the sexual acts13 and the extent of the residual, p hysical and mental damage to the victim or victims; (6) The defendant is sentenced for an of fense committed while on probatio n; (7) The defendant is sentenced for cr iminal contempt. Tenn. Code Ann. § 40-35-115(b).

In Gray , our supreme court ruled tha t before consecutive sentenci ng could be imposed upon the dangerous offender, as now defined by subsec tion (b)(4) in the statute, oth er conditions must be present:(a) that the crimes inv olved aggravating ci rcumstances; (b) that consec utive sentences are a neces sary means to protect the public from the defendant; and (c) that the term reasonabl y relates to the severity of the offenses.

In State v. Wilkerson , 905 S.W .2d 933, 938 (T enn. 1995), ou r high court reaffirmed those principl es, holding that consecuti ve sentences cannot be required of the dangerous offender "unl ess the terms reasonably relate[] to the severity of the offenses committed and are nece ssary in order to protect the public (society) from further cr iminal acts by those per sons who resort to ag gravated criminal conduct." The Wilkerson decision, which modified somewhat the strict factual guidelines for consecutive sentencing adopted i n State v. Woods , 814 S.W.2d 378, 380 (Tenn. Crim. App. 1991), described sentencing as a "human process that neither can nor should be reduced to a set of fixe d and mechanical rules." State v. Wilkerson , 905 S.W.2d at 938. The record must show that the sentencing principles and all relevant facts and circumstances were cons idered before the presumption of correctness applies.14 The trial court imposed consecutive sentencing because the defendant had been c

onvict ed of two

or more statuto ry offen ses inv olving a sexua l abuse o

f a minor. Tenn. Code Ann. § 40-35-115( b)(5). That the defendant was the stepfather of the minor victim was the essential concern of the tr ial court. That the activ ity had been repeated and that the victim suffered emotionally as a result were also
concerns.
Obviously, there w as a statutory basis for the consecutive sentences. In our view, the tr

ial court acted withi n its discretion in re quiring that two of the four sentenc es be con secutiv

e. Both o

f the cons

ecutiv ely sentenced c rimes w ere of a serious nature and committed ag ainst a particularly vulnerable victi m.

The state has asked for a resentenci ng based upon Tenn. Code Ann. § 39-13-523 which was enacted in 1992: (b) Notwith standin g any provisi on of law t o the con trary, a multiple rapist or a chi ld rapist ... shall be r equired to serve the entire sentence imposed by the court undiminished by any sentence reduction credits such person may be eligible

for or earn.... (c) The pro visions of title 40, chapter 3 5, part 5, relative to release eligibili

ty status and parole shal l not apply to or authorize the release of a multiple rapist or child r apist, as defined in subsection (a), prior to the servic e of the entire sentence imposed by the court. Tennessee Code Annotated § 40-35-501, et seq., governs the authority to release a defendant on parole. In 1992, that porti on of our code provided that a "felony sentence to the Department of Correction ... shall be served accord ing to this chapter. An inmate shall not be eligible for parole unti l reaching his releas e eligibility date...." Tenn. Code Ann. § 40-35-501(a)(1). Subse ction (c) establishes release eligibility at 3

0% for a Range I standard offender. Id. The language of the child rape statute, subsection (c) , provides that "title 4 0, chapter 35, part 5, relati ve to15 release eligibility status and parole shall not ... authorize the release of a ... child rapist ... prior to ser

vice of the entire sentence i mposed by the court." Tenn. Code Ann. § 39-13-523(2)(c). In our view, a chil d rapist is not entitled t o be released on parole.
The trial court imposed all three sentences at the same time. It intended under these circumstanc es an effective sentence of thirty -two years. Because the trial court w as in error in determini ng release eligibil ity on the longest of the individual sentences,this court deems it appropr iate for the matter to be remanded for a new sentencing hearing on each count. See State v. Roy Don Gibson , No. 02C01-9604-CC-00117 (Tenn. Crim. App., at Jackson, Jun e 25, 1997), app. denied , (Tenn. Feb. 23, 1998). The trial court must establish sentenc es on each count that, when taken tog ether, reflect the purposes and pr inciples of the 1989 Act. Id.
In summary, the judgments of conviction are affirmed . The causes are remanded for resentencing.

________________________________ Gary R. Wade, Judge CONCUR:

_____________________________ Thomas T. W oodall, Judge

_____________________________ L.T. Lafferty, Special Judge