# FILED
June 1, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE JANUARY SESSION, 1999
STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9801- CR-00016 ) Appellee, ) ) DAVIDSON COUNTY V. ) ) ) HON . CHE RYL BLAC KBU RN, BARRY WADDELL, ) JUDGE ) Appe llant. ) (RAPE OF A CHI LD)

FOR THE APPELLANT : FOR THE APPELLEE : LIONEL R.BARRETT,JR. JOHN KNOX WALKUP Washington Square Two, Suite 418 Attorney General& Reporter 222 Se cond A venue N orth Nashvill e, TN 37201 DARYL J.BRAND (On App eal Only) Assistant Attorney General 2nd Floor, Cordel l Hull Bui lding DIANNE TURNER 425 Fifth Avenue North Trial Lawyer

s Buildin g Nashvill e, TN 37243 430 Third Avenue Nort h, Suite 101 Nashvill e, TN 37201-1111 VICTO R S. JO HNS ON, III (At Trial Only) Distri ct Attor ney General DAVID A. COL LINS WILLIA M REED 211 Printer

s Alley Bui lding, Sui te 400 Assistant Distri ct Attor ney General Nashvill e, TN 37201 Washington Square, Suite 500 (At Trial Only) 222 2nd Avenue North Nashvill e, TN 37201-1649

OPINION FILED ________________________ AFFIRMED IN PART; REVERSED AND MODI FIED I N PART THOMAS T. WOODALL, J UDGE-2- 

# OPINION

The Defendant, Barr

y Waddell, appeals as of right from his convi ction in the Davidson Coun ty Crimina l Court. After a jury tri al, Defendant was convicted of two (2) counts of r

ape o f a chil d (Counts 1 and 2) and t wo (2) counts of

aggravated sexual battery

(Counts 3 and 4). Defendant was sent enced to twenty-five (25) years foreach count of r

ape of a chil d and ten (10) years for each count of aggrav ated sexual battery, with all sentence s to be served consecutively, for an e ffective sentence of seventy

(70) years . Defendan t argues t hat the trial cou rt impro perly sentenced hi m to t he ma ximum period of inca rcerat ion for h is rape of a ch ild convict ions an d erred in ordering his sente nces to b e served conse cutively. W e affirm in pa rt, and reve rse and modify in p art.

When an accused chall enges the length, r ange or the mann er of service of a sentence, this cour

t has a duty t

o conduct a de novo review of the sentence wi th a presumption that the determinati ons made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d) . This presumpti on is “condi tioned upon the affirm ative showing in the record t hat the trial court consi dered the sentencing pr incipl es and all r elevant facts and circum stances.” State v. Ashby , 823 S.W .2d 166 , 169 (T enn. 19 91).

In conducting a de novo review of a sentence, this cour

t must consider : (a) t he evidence, if any, received at the trial and t he sentencing hearing; (b)the presentence report; (c) the principl es of sentenci ng and arguments as to sen tencing alternativ es; (d) the nature and characterist ics of the cri minal conduct involved; (e) any statutory mitigati ng or enha ncem ent factors ; (f) any statement t hat the defend ant mad e on h is
own behalf; an d (g) the p otential or lac k of poten tial for rehab ilitation or treatm ent.-3-

Tenn. C ode An n. §§ 40 -35-102 , -103, an d -210; see State v. S mith , 735 S.W .2 d 859, 863 (T enn. Crim. A pp. 1987).

If our rev iew refle cts tha t the trial court followed the statut

ory sentenci ng procedure, imposed a lawful sentence after hav ing given due considerati on and properweight to the factors and princi ples set out under the s entencing l aw, and made findings of fact adequatel y supported by therecord, then we may no t modify the senten ce even if we wou ld have p referred a different res ult. State v . F letcher , 805 S.W .2d 785 , 789 (T enn. Crim . App. 19 91).

At trial, the vic tim, K.S . (it is the pol icy of t his cou rtnot

to r efe r t o ch il d vi cti ms of sexual offense s by name ), testified that her b est fri end was Whitney Rickman, stepdaughter

of the Defendant . The vict im was ten (10) years old at the time of

trial. When she w as se ven (7 ) years old in 1 994, K.S. visited Whitney Rickman almost every weekend. Defendant t ook her into the upstai rs bedroom to “play mode ling” while he took ph otographs. The v ictim i ndicated receiving “ bad touches” f rom the Defendant while “mode ling” in an u pstairs be droom alone w ith the De fendan t. K.S. recalledthat no rmall y Wh itn ey Rickman would be outside the door with the do or closed to the bedroom. K.S. indicated that her private parts were touched with t he Defe ndan t’s mouth, his f inger and hi s penis. Thi s touching i ncluded digi t al penetrati on and cunnili ngus. The vict im stated t hat the Defendant instructed her not to tell anyone abo ut these even ts. From K.S .’s testimony, this abus e occurre d frequently for

a period of 1.5 years.

Arthur William Rees, employed by the Youth Serv ices Divi sion of t he Nas hville Police Depa rtmen t, testifie d at tri al that he rece ived a complai nt regardi ng an-4-

allegati on of chi ld abu se of K. S. on April 3, 1995. Rees m et with the vic tim’s pare nts
on April 4, 199 5, and th en inte rviewe d K.S . the follo wing d ay at M cMur ray Mid dle Scho ol. Wh en he told the victim why he was t here, the victim be came “very distr a ught, withdrawn, and she seemed like she di dn’t want t o talk. It affected her very -- it w as a vis ible . . . shewas vis ibly shaken when we told he r why we wer e there to talk to her.” K. S. became so upset and defen sive that the interview had to be terminated un til a later date.
Nancy Quig gle wa s the th erapis t for the v ictim at the Rape and SexualAbuse Center. Quiggle testified at the senten cing hea ring that K .S . had been a ther apy patient since J uly 199 5. The vic ti m particip ates in therap y week ly in a ver y sma ll group setting. When Quiggle first met K.S., Quiggle observed that she was: carryi ng a lot of guil t . . . fel t very responsi ble for

a lot of wh at ha d happened to her . . . felt a l ot of shame to t he point where when she initially disclose d, she left a lot of what had happened out of t he disclosur

e, and it took q uite a b it of time to deve lop a re lations hip with me and starti ng to buil d some trust and starting to understand that what had happ ened was n ot her fa ult befo re she was a ble to really come out with all the thin gs that ha d occu rred. Quig gle stated th at K.S. was“afrai d that if she told, she w ould be punishe d or hurt; thatthere was, y

ou know, the t hreat made to her that if you tell , you know, I will hurt you, and s o she was a fraid that if she did tell, he would ca rry forth on hi s threat and she would b e hurt.”
Quig gle described t hat initi ally t he victi m did not want to talk about the sexual abuse, but that s he only would write down four (4) thi ngs tha t had occurred on a piece of paper. She er ased these four

(4) things, bu t eventua lly was able to rewrite them and keepit written on th e paper . Initial ly, K. S. descri bed having fr equent nightmares, full of scary t hings and people. Quiggle could not recal l if t hese-5-

nightmares were specif ic to t he abuse. After several months, K.S. tol d Quiggle that she thought she coul d use some dolls to depict what had happened to her. Even when the victim used objec ts to de scribe the se xual ab use, s he wo uld as k Quig gle to look a way. W hil e K.S. did no t want to des cribe to he r parents t he various incidents of sexual a buse, she all owed Quiggle to tell them when she was n ot presen t.
Quig gle noted that these sexual crimes committed upon K .S. have af fected her ability to tru st othe r individu als. W hile Qu iggle c ould not stateexactly how long the victi m would need to conti nue therapy ( estimati ng six (6) months), she noted that the reason that the therapy had conti nued this long was because “of the cont inued stress of what wound up happening. I think once she feels sec ure that she is safe, thather abuser is i n prison and she i s not going to have to deal wi th him anymore, she may p haseoff

the rap y. ” I n te rms of the vict im’s emotionalstatus, Quiggle stated that“it is still to this day very difficul t for her to talk about it, and even if she hea rs about sexual abus e. She told m e onc e that in a class , they ha d som ebod y com e in to do a prevention program, and that i t was so upsetti ng to her that she cried and left the roo m, so I thi nk the subject stil l tri ggers in her a

lot of emotion, negat ive emotion and sadn ess and fea r.”

On cross-examinat ion, Quiggl e stated t hat throughout her therapy, K.S. had maintained good grades, had not exhibited any signs of antisoci al behavior , nor had she withdrawn f rom her fri ends or famil y. However, Quigg le sta ted that whi le an outsider could not i mmediat ely notic e any adverse ef fects upon t he victi m, the distress K.S. suffered “i s very internal. . . because [K.S.]tends t o be able to keep whatever

pain she is fe eling in side p retty we ll, and it co mes up wh en it is trigger ed.-6-

. . but I am seeing things that make me rea lize that there are still som e interna l stuff that is going on w ith [her] that I’m concern ed about.”

Dale Shade, the vi ctim’s father, testifi ed that K.S. was ten (10) years old at the ti me of the se ntenc ing he aring. S hade stated that K.S . had n ightm ares p eriodic ally since the abu se occu rred. Befo re the origin al trial date was postponed from October 1996, Shade described t hat the vi ctim was obviously nervous unti l a week or so before the trial date when she “was almo st at a re lieved s tandp oint be caus e she felt that it wa s goin g to fina lly be overor her part in it .” Aft er learni ng that the trialwas to be d elayed unt il Mar ch 1 997, K.S . be came very upset because she had wanted to “get it over with.” As the March tr ial dateapproached, theent ire fa mil y be came extremely anxious.

When asked to desc ribe ho w thes e even ts had affecte d their d augh ter, Da le Shade read the fol lowing prepar ed response: How has wh at happ ened to [K.S.] affec ted us? Wh ere do w e start? For the past two year

s, we have been l ooking over our s houlde rs. W e don’t le t [her] out

of our si ght, even when she is in our own backyard. There are only a few peo ple we a llow [her] to s pend tim e with or even spend the nig ht with. W e’ve be com e very p rotectiv e, som etime s a little too much, but hopeful ly that will lessen wit h time. [K. S.] has spent the la st year and a half goin g to coun seling eve ry week. W e don’t k no w how long thi s will , she will have to continue, or p eriodically will she have to see someone for the r est of her l ife. And what will happen to her as she gets older and starts havi ng relationships wi th boys? We ar e wondering, wi ll thes e events be brought all back up? During this time, [s he] has had night mares, a lot of the ti mes, she wants to sleep wit h her mother to hel p her get thr ough this. She says she feels safer that w ay. W e try to reassure her so that she won’ t be afrai d. He took her

innocence away. She is a li ttle gi rl who has be en put into an ad ult situati on. This is a part of our

life that w e have unfortu nately kept from our parents because we don’t know how [her] grandp arents will t ake this i nformation and if they will tre at her d ifferently . We don’t want that to hap pen, and we do n’t kno w how they will respond to these events.-7- It has changed all of he r views . You th ink it will never happen to y ou. You think t hat you can protect your chi ld from the bi g bad wolf, but then when the big bad wol f happens to be a f rien d’ s father, how can you continue to trust and teach [K .S.] how to trust peo ple? W e want [her] to have a fun ch ildhoo d, but th is happened, and it has taken away part of her chil dhood, a part t hat can never be regai ned. We don’t wantthis to happe n to anyo ne else, a nd th e fact t hat he has u sed his ow n daughter

for his sick

satisfaction, we feel that som eone like this s hould not be allowed back i nto our soci ety unti l he has served the maxi mum amount of time for his cri mes, and in my opini on, tha t is not e ven enough, a severe enou gh time. Following Dale Shade’s testimony, the tri al court qu estioned hi m regarding the nature of relations hip they h ad with the D efend ant prio r to their a waren ess o f this situati on. Shad e state d that th e Def enda nt was living with his girlf r iend Carol and her daugh ter W hitney at t h at time, an d they would dr op off the v ictim at

the Defe ndan t’s home nearly eve ry week. The y had a ll gone out to di nner severaltimes t ogether, with the Shad e family having the Defenda nt and his fam ily o ver to t hei r home on numerous occasions. Shade noted t hat he had just bui lt a pool , and the Defendant had come over and swam in thei r pool wit h t he girl s. Shade descri bed their relati onship wit h the Defendant as one in which t hey trusted Defendant wit h not
o nly their property, but trusted h im comp letely with the care of their da ughter. Because Shade often worked on Sundays and was off on Saturdays, the Defendant would normally baby sit the girls on Sunday and Shade would watch t hem on Saturday. After K.S.’s p arents l earne d of the allega tions o f sexua l abus e, this babysitt ing relat ionship wi th the Defendant was terminated.

Shade then read aletter addr ess ed t o th e trialcou rt , wr itten by t he v ict im, which stated: Dear Judge: I hope t hat you alldecide that Barry stays in jail a very lo ng ti me [jail underlined many times]. Because of what he did, it is l ike he put a de nt i ntomy life. It’s like when I was born, I started wi th a strai ght line, but now o f what h e did, n ow m y line ha s a de nt in it, plu s I don ’t think it was ri ght for hi m to touch me in t he pl aces he did. Well, I just-8- hope he stays in jai l [underl ined several t imes] unti l he is dead [several exclam ation poin ts]. I hope h e stays in ja il . . . I mean it. . . Love , [K.S.].

The Defendant testif ied on his own behalf, stat ing that h e was falsel y accused and convicted of a crime which he di d not commit. Defendant explai ned thathe was accused of this cri me only because he tried to end his relati on ship wit h Carol Rickman. Defendant is a member of the Haywood Hil ls Baptist Church and has asked for f orgive ness for hi s adulterous life. Defendant stated that he had been around lot

s of li tt le g ir ls and n eve r ha d any des ire todo a nyt hin g tothe m. Othe r evidence presented on the Defen dant’s behal f incl uded Honorable Dischar ge pap er s from the Air Force
.

Follow ing the presentation of pr oof at the sentencing heari ng, the trialco ur t stated that it

would consider

the evidence at tri al and the sentencing hear ing, the principl es outline d b y the General Assembly for sentenc ing, any ar guments of
coun sel, the nature and the characteri stics o f the crim e, any enhanci ng and mitigati ng fact ors an d the stat ement of the Defendant . In lo oking at t he enhancement factors, the tri al court considered Counts One(1) and Two (2) ( rape of a child) jointly and Counts Three (3)and Four (4) ( aggravated s exual battery) jointly.

. The trialcourt found as applicabl e enhancement factor (1), t hat defendant has
a previo us hist ory of cr imina l convic tions o r crimin al beh avio r in additio n to that
necessa ry to establ ish the appr opriate r

ange. Tenn. Code Ann. § 40- 35-11 4( 1). Defendant admitted to using marij uana on previous occasions in the pa s t. In-9-

addition, the trial court noted that it coul d consider any evidence of s exual crimes not charged in thi s case, based upon the number of t imes and the lengt h thatthis abuse went on. State v. Hunter , 926 S. W. 2d 744, 74 8-49 (Ten n. Crim. App . 1995). Enhancement factor (6), tha t t he person al injuries inflicted upon the victim were particul arly great, was al so applied by the tri al court. Tenn. Code Ann. § 4 0-35 - 114(6). Evidence that K.S. requir ed co unseling as a result of this incident , had nightmares, and continued to be emotionall y traumati zed by this sexual abus e were all suppo rtive of this facto r. See State v. McKnight , 900 S.W.2d 36, 54 (Tenn. Cri m. App. 19 94).

Because this was a mod eli ng ga me wherein the Defendant took a camera and tookpictures

of a parti ally nud e child , the trial c ourt fou nd the eviden ce clea rly supported factor (7) as t he offense was co mm itted to gratify the Defend ant’s desire forpleasure or excitement as to the conv iction s for rape of a child. Tenn. Code Ann. § 40-35-114(7). The trialcourt correctl y found that thi s fact o r only appl ied to the convicti ons for rape of a child. Intent t

o gratif y a desire f

or pleasure and excitement is a necessa ry element of ag gravated sexu al battery and thatfactor can not be used to enhance the sentences for theconviction s of this offen se. See State v. Kissinger , 922 S.W .2d 482 , 498-90 (Tenn . 1996); State v. Hayes , 899 S.W.2d 175, 185 (Tenn. Cri m. App. 1995). Fi nally, the tri al court ap plied factor ( 15) as the Defendant abused
a position o f trust, public o r private, o r used a special skillin a manner that signific antly facil itated t he commission or the fulfi llment of this of fense. Tenn. Code Ann. § 40-35-114(15) . The tri al court based applicat ion of th is factor upon Defe ndan t’s status as a f riend of the fam ily, entrusted to babysit t heir chil d, and the fact that the abuse had gone on for some period of time.-10- As far as mit igating factors, the only appli cable miti gating fac torwas (13), t hat Defendant had been honorably discharged f rom the Air Fo rce. Tenn . Code Ann. § 40-35-113 (13). While Defendant relied u pon h is stable work history and lack of prior criminal record, t he trialcourt ref used to consider these. Thus, t he trialcourt found enhancement factors (1), (6), and (15) and m i tigating factor (1 3) app licable to all convictions. In addit ion, it found enh ancemen t factor (7) also appl icable to the convicti ons for rape of a child. In a sentenci ng order fi led approxi mately six (6) days
a fte r the sente ncing he aring, the tria l court state d that it “gave great we ight to enhan cing facto rs 6 and 15 in calcu lating the d efenda nt’s sente nce.”

The s entenc e for a Ra nge I, Class A felony is fi fteen (15) to twenty-five(25) years. Tenn. Code Ann. § 40-35-112( a)(1). As to Counts One (1) and Two (2), the trialcourt found the maximum sentences were warrantedand justi fiable u nder the facts in this record and the appl icatio n of enhance ment factors (1 ), (6), (7) and (15). For Counts Three (3) and Four (4), t he sentence for

a Range I, Class B felony is n ot less than eigh t (8) nor m ore than twelve (12 ) years. T enn. C ode An n. § 4 0-35- 112(a)(2). In consider ation of e nhancement factors (1), (6) and (15), the trial court reasoned that a ten (10) year s entence, the mid-poi nt of the rang e, was a ppropria te on each of those counts.

The trial court stated that it considere d the presum ptive senten ce for Co unts 1 and 2 to b e a twen ty (20) year s ente nce, the mid-range of that sent ence. Tenn. Code Ann. § 40-35-210( c) (1995). This was error . The presumptive senten ce fo r Class A felon ies com mitted prior to J uly 1, 19 95 is the minimum sentence. Because the Defendant committed the offenses before the Ju ly 1, 199 5 amendment of Tennessee Code Annota te d sec tion 40-35-210, the mini mum sentence in the-11-

applic able range is t he pr esumpt ive senten ce. See Tenn. Code Ann. § 40-35- 210(c)(1990) (Repe aled July 1 , 1995); State v. Ivory Thomas , No. 02C01- 9705- CR00179, Shelby County (Tenn. Crim. App., at Jackson, Apr il 24, 1998) (No Rule 11 applicat ion filed). The record reflects that the authoriti es were notified of t hese offensesin April 1 995, a fter wh ich the eviden ce is conclusive that no further abuse occurred. Since the trial court applied an incorrect presum ptive senten ce on C ounts 1 and 2, there is n ot a pres umptio n of corre ctness fo r the sen tences for rape o f a child, and our revi ew is de novo for these s entenc es.

Defendant argue s that h is previo us crim inal behavior, enhance ment factor (1),
was applie d by the trial cou rt in error as i t is uncl ear as to what other sexualcrimes
are being referred to a nd Defen dant’s use of m ari jua na occurred over twenty ( 20) years prior to the tria l. Wh ile the trial court did refer to Defendant’ s admission i n the presentence report of using marij uana in the past, the trial court heavily relied upo n the numbe r of times and the length that the sexu al abuse oc curre d. In State v. Hunter , 926 S .W .2d at 7 48-49 , this co urt held that a d efend ant’s p rior crim ina l behavior

may include e vidence of sexua l crimes c omm itted but no t prosecu ted. W e agree with the tri al co urt’s ass essment that t he Defendant’s c riminal be havior of
sexua lly abusing the vict im was an appropriate applicat ion of enhancement f actor (1).

Second ly, the Defendant ass erts that “in theabsence ofany personal injuri es” it is imprope r to use en hancement factor [6] in this manner. The trial court rel ied upon the testimony t hat K.S. was scar ed, had night mares and continued to req uire
couns eling as a res ult of t he Defendant’s abus e in applyi ng factor (6). In State v. McKnight , 90 0 S. W.2d at 54 , t his cou rthel d th at t he fact that two ( 2) o f t he v ict ims-12-

of sexual abuse r

equired counseling wassufficie nt to su pport th e app lication of this enhancement factor. Clearly, the testi mony demon str ated that K. S. had many pro ble ms during ther

apy and would need to continue t herapy for an indefi nite peri od into the futur

e. We agree that thi s psychologi cal trauma i n the case s ub judice necessitates th e application of factor (6 ).
Finally, the Defendant ar gues that t he applicat ion of enhancement factor [15]
was erroneous as i t carri es the priv ate trust pos it ion to an unacceptable degree. Defendant fails to cite any authority to support h is argument; therefore, this issue is waived. Tenn . Ct. Crim . App. R . 10(b); State v. Killebr ew , 760 S.W.2d 228, 231 ( Te nn. Crim. A pp.), perm . to appeal denied , id . (Tenn. 1988). Notwithstanding Defe ndan t’s failure to cite autho rity, the law is cle ar in Ten nesse e that a defendant
oc cupy ing a relati onship wit h a victi m entrusted to his care whi ch promotes “confidence , reliabi lity or fait h” in that

defendant i s suffi cient fo r appl icatio n of enhancement factor (15)

. See Kissinger , 922 S.W.2d at 488-89. There is no err or in the lengt h of Defendant’ s sentences for Counts 3 and 4, aggrav ated s exual battery.
Regarding Defendant’s ar gument that thetrialcourt err ed in fai ling to consider any mitigati ng factors, we can find no error. W hile the pre sence of a criminal record is an enh ancem ent facto r, the absen ce of suc h is not a m itigating facto r. State v. Robinso n , 971 S.W .2d 30, 48 (T enn. Crim. A pp. 1997) ( citing State v. Keel , 88 2 S.W.2d 410, 42 2-23 (T enn. C rim. App .), perm . to appeal de nied (T enn. 1994 )). Partic ularly in vi ew of Def enda nt’ s ex

ten siv e cr imi nal ac tiv ity i n this case, Defe ndan t’s lack of pr ior cri minal convi ctions was appr opriatel y ignored. Wh ile-13-

Defe ndan t’s work rec ord and cont ri but ion to h is fami ly may b e ent it led to s ome conside ration, we find that it carrie s little weight in th is case.
Reviewing the sentences f or rape of

a child de novo without t he presumption of co rrectness, we note the following. Applying enhancement factors (1), (6) , an d (15), and mitigating factor (13) in thi s case, the t rial court se ntence d Defe ndant to ten (10) years

on each convict ion for aggr avated sexualbattery , the exact mid-point of the range. In its sentenci ng order, t he trialcourt stated that it gave great wei ght to factors (6) and (15) i n calculat ing Defendant’ s sentences forall four convi ctions, includi ng rape of a chi ld.

The trialcourt appl ied one (1) additional e nhancement factor to the sentences forrape of a child, that be ing enhanc ement fac tor (7). The trial court did pro vide in its sentencing order the t heoreticalstatement t hat “even i f the court had calculated the sentence [for rape of a c hild] begin ning a t fifteen (1 5) yea rs” the c ourt wo uld have imposed the maximum sentence of twenty-five (2 5) years. Howeve r, the court based this upon t he “s trength of the enhancing factors.” The trialcourt enhanced the aggravated sex ual batter y sentences to the mid-poi nt of therange based upon the strength of enha ncem ent factors (1), (6), and (15). Of partic ular importance and significancein our de novo review is tha t the trial court d id not give “g reat weig ht” to enhancing factor (7), the only additi onal factor applied to the sentences for rape of
a child. Based upon our review of the entir e record, includi ng the findings of fact and weightafforded to th e enhancing and m itigating factors by the tr ial cou rt, we ho ld thatthe sentence for each convic tion for rape ofa child shoul d be enhanced eight (8) years for a totalsentence of twenty-three (2 3) years for each convict ion for r ape of a child, and the judgm ents for ea ch such conviction are mo dified acc ordingly.-14- For Defenda nt’s se cond issue, t he impositi on of consecutive sentences, he asserts that ther

e was no clear

indicat ion that K. S. would suffer great mental damage for the rest

of her life, and that

the tri al court f

ailed to con sider D efend ant’s lengthy work record, church acti vity, lack of criminal record and other evidence supporting his potent ial for rehab ilitat ion. The tr ial court determined that

the sentences were to be served consecutively based upon Defendant’s convi ctions for two (2) o r more statutor y offenses i nvolvi ng the sexual abuse of a minor. Tenn. Code Ann. § 40-35 - 115(b)(5 ). The trial co urt alluded to the dev astation o f both familie s as justifi cation for the sentences being consecu t ive. I n additi on, the trial court als o found that the extensive damage to the victi m and her fam ily as a re sult of the Defenda nt’s behavi or and the statements of t he Defendant just ified t hat the consecutive sentencing was reasonably r elated to the severi ty of the offens es and
was necessary i n orderto protect the publi c from furt her serious criminal conduct by the Defen dant. State v . W ilkerso n , 905 S.W .2d 933 , 939 (T enn. 19 95). In summation, the tri al court stated that is was beyond t he court’s belief that Defendant woul d sugge st that thes e charg es were brough t in reveng e. The tria l court fel t Defendant’s testimony was si mply not credi ble.

If a defendant i s convict ed of two (2)or more statut ory offenses invo lving sexual abuse of a mino r, with considerat ion of theaggravati ng circumstances a rising from the relat ionship bet ween the defendant

and vi cti m or v ict ims , t he t ime span of defen dant’s undetected sexual activity, the nature and scope of the sexualacts and the extent of

the residual, physical an d mental da mage to th e victim, the court may impose consecutive sentences. Tenn. Code Ann. § 40-35-115(b) (5). Due to the Defe ndan t’s status as a f riend of the fami ly, t rusted to care for K.S. in t heir absence, the extensive time span of t he abuse, the nat ure of thesexual ab use, inclu ding bo th-15-

cunnili ngus and digitalpenetrati on, as well as the extensive resi dual mental distress and dama ge th e vict im suffered, we can find no er ror in t he trialcourt’s impositi on of consecut ive sent ences. Furthermore, the consecut ive natur e of the sentences was correctl y justi fied as i t was reasonabl y related to the severity of the cri me s Defendant comm itted again st K.S. and is nece ssary to protec t the ge neral p ublic from furth er acts of s exual ab use of m inors. Th is issue is w ithout me rit.

C ONCLUSION

The trialcourt used the incorrect presumptiv e sentence for the determination of Defendant’s sentences for Counts 1 and 2. The sentences f or each convic

tion for rape of a chil d are modifi ed to twenty-three (23) years. The trialcourt committed no
error in imposing co nsecutive s entences and in the l ength of sentences imposed for Coun ts 3 and 4. Acc ordingly, the judgm ents in Coun ts 3 and 4 are aff ir me d. The effective se ntence for all coun ts is sixty-six (66) y ears.

____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ JOHN H. PEAY, Judge

___________________________________ JERRY L. SMITH, Judge