# FILED
June 17, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE AUGUST 1996 SESSION

STATE OF TENNESSEE, ) ) Appellee, ) No. 01C01-9511-CC-00392

) ) Macon County v. ) ) Honorable J.O. Bond, Judge ) PAUL RALPH LEATH, ) (Three co unts of r ape of a child and two ) counts of aggravated sexual bat tery) Appellant. ) For the Appellant : For the Appellee : Comer Donnell Charles W. Burson District Public Defender Attorney General of Tennessee and Howard L. Chambers Karen M. Yacuzzo and Assistant Attorney Gener al of Tennessee Randy Wakefield 425 Fifth Avenue North Assistant Public Defenders Nashville, TN 37243-0493 213 North Cumberland Street P.O. Box 888 Tom P. Thompson, Jr. Lebanon, TN 37087 District Attorney General and John Wootten Assistant District A

ttorney General P.O. Box 178 Hartsville, TN 37074-0178

OPINION FILED:____________________
AFFIRMED Joseph M. Tipton Judge2 O P I N I O N
The defendant, Paul Ralph Leath, was c onvicted of three counts of rape of a child, Class A felonies, and two counts of aggravated sexual battery, Class B felonies. He received R ange I, consecutive sent ences of twenty years

for each rape of a child conviction and t en years for each aggr avated sexual battery

conviction for an effective sentence of eighty y ears. In this appeal as of ri ght, the defendant contends that: (1) the evidence is insufficient to support the jury’s verdic ts of guilt beca use the t estimon y was inconc lusive as to when and how many times the event s occurred; (2) the trial court erred by refusing to grant his motion for a change of venue because of the community-wide interest and the extensive media cov erage; (3) th e trial court erred by allowing inflammatory and prejudicial testim ony concerning photographs when the defendant was not charged w ith a crimeinvolving the pictures; and (4) the trial court erred in its application and consi deration of enhancement factors and in imposing an excessive sentence of eighty years. We hold that the evidenc e is sufficien t to support the defendant ’s convictions. Alth ough the trial court erred by

failing to require th e state to elect the offenses for whi ch it was relying upon for conv

ictions, we conclude that the error was harml ess beyond a reasonable doubt. We also hold that the trial court did not err by d enying a change of venue and by allowi ng testimony regardi ng photographs taken by the defendant. As to sentencing, we conclude that the trial court erroneously applied enhanceme nt factors (2) and (16) to both conv ictions and enhancement factor (7) to the aggravated sex

ual battery co nviction a nd faile d to consi der appro priate mi tigating f actors. Ho wever, we affirm the mid-r ange sent ences im posed by t he trial co urt and it s order of consecut ive sentencing.3 In July 1993, Macon County Sheriff James Mercer began in vestigating the defendant and his wife, Judy Leath, for sexually abusing their six-year-old daughter, D.L. As a result of this i nvestigation, the defendant w as charged and convicte d of committing three counts of rape of a child and two counts of agg ravated sexual battery

.

The then seven-year-old victim testified that she a nd her younger brother lived with the defendant and her mother. She stated that the defendant wore a skirt and a pair of high heels around the house. She said that the defendant als o wore her mother’s bathing suits and that she believed the defend ant sometimes looked good in them. The victim testified that she normally slept in he r bed but that sometimes she would get up and go int o her mother’s room where she either slept at the end of the bed or in her brother’s baby bed that was in the room. S he stated that the defendant, her mother and her brother usually slept in her mother’s roo m. She said that the defendant either wore nothing t

o bed or one of his gowns or pajamas. The victim testified that she watched the defendant and her mother k issing or the defendant sticking his “tutu” in her mother. She said that the defendant and her mother talked to her whi le performing these sexual acts and that she got toilet paper for her mother beca use “stuff” would come out of her.

The victim testified that although she did not watch her parents a lot, she watched them more than once. She be lieved that they w ere having fun and stated that she thought it would be fun al so. She stated that she asked the defendant to do to her what he had done to her mother. The victim testified that the defendant tried to stick his “tutu” in her when she was on her bed, when she was on the floor, when she was in a chair, and sometimes when s he was in her mother’s be d. She stated that the defendant tried more than once each tim e and that it hurt every time. The victim said that the defendant stopped when she told him it hurt. She stated that the defendant’s “tutu” went inside her

“tutu” a little the las

t time the defendant tried to stick it in her. She4

testified that her mother was in the kitchen cooking or at work while these things were happening but that sometimes she tol d her mother what the defendant did.

The victim testified that the de fendant also put his “tutu” in h er mouth, and she stated that it was her idea. She said that when she asked him, the def endant told her she could. She stated that this occurred four or five times and that it happened at night when she was in a chair in the kitchen.The victim testified that her mother was asleep in bed. She said that the defendant was not wearing any clothes and that she was either sitting

in the floor or in the defendant’s lap. She also said that she w ould get up out of her bed and go into the kitchen and get in the def endant’s lap. The victim testified that the defendant told her not to tell anyone anything . She stated that she kept it a secret until Loi s Gregory from the Depar tment of Human Services asked her about it. The victim testi fied that she realized that w hat she was doing w

as wrong because her mother told her it was wrong.

The victim also testified th at the defendant and her mother took pict ures around the house. She said that the defendant took pictures of her and her mother and that sometimes she would not be wearing any clothes.

On cross-examination, the victim testified that the defendant was nice to her. She stated that any time it hurt, she told the defend ant, and he stopped. She said that she still loved the defendant and her mother.

Sheriff James Mercer of Macon Count y testified that he began investigating the defendant after receiving infor mation from Captain Duke Jones of the Lafayette Police Department. H e said that they talked to a couple of people regarding the information that they had rec eived, and they ultimatel y spoke to Judy Leath, the defendant’s wife and the victim’s mother. Sheriff Mercer stated that after talking to Mrs. Leath, they went to the defendant’ s residence and brought the defendant to the station5

for quest ioning. He said that the def endant s igned a writ ten waiver o f rights a nd gave two taped statement to the officers admitting his guilt t o the crimes, one on July 19, 1993, and another on July 20, 1993.Sheriff Mercer also testified that the defendant and his wife provided w ritten consent to search thei r house on two separate occ asions. He said that the defendant

went w ith him e ach time the house was searched . Sheriff Mercer said that he took s ome items from the defendant’s house, incl uding a picture of the victim. He also te

stified that Larry Britton, a television new s reporter, showed up at the jail while he w

as booking the defendant. Sheriff Mer cer stated that the defendant gave a videotaped statement to Mr. Britton whi le he was fingerprinti ng the defendant. The defendant’s taped statements and the vi deotape of Mr. Britton’s inter view of the defend ant were in troduce d as exhibi ts and pla yed for th e jury.

The defendant’s first taped statement reflect s that he told the officers that the victim had played w ith his penis while he was lying on hi s bed in the nude. When asked whether he had ever licked the victim i n her private parts, th e defendant responded affirmatively. H e said that he had also taken the he ad of his penis and rubbed it through the vi ctim’s private parts . The defendant said that it had not been long since this happened and that it occurred on two o r three occasions. The defendant expressed the belief that the victim enjoyed it, and he told the officers that the victim was the one who started it in the first place. He denied penetrating the victim with his penis or hi s finger. The defendant said that the v ictim called his and her p rivate parts “tootie.”

The defendant stated that the victim had “caught” him and his w ife having sex on earlier occasi ons. He said that when the victim asked what the y were doing, he told her they were cuddling up. The defendant also said that the victim “caught” him walking out of a room nude, but he denied that it routinely happened. The defendant told the officers that he occasionally wore women’s clothing in front of his children. He6

also said that he had pornogr aphic material in his bedr oom but that the victim did not know that it existed. The defendant stated that the victim asked h im to do things such as lick or play w

ith her “peetie.” The defendant cl aimed that he did not ask the v ictim to do these things and that he did not instigate the victim’s conduct. He said that he did not say anything one w ay or another. The defendant told the officers that Mrs. Leath knew that the events took place although she was not in the room when they actually occurred. He said that thei r three-year-old so n also was not present.

The defendant told the off icers that the events had not occurred lately because the victim had “hot- cold spells” where she would go approxi mately one week without saying any

thing. He said that on the first spell, he told the v ictim that he was busy and that she should go to bed. The defendant stated that he did not k now when the first incident took place but that it had been app roximately two weeks since the last incident occurred. He said that the victim sometimes talked like a sixteen-year-old rather than a six-y

ear-old, but he claimed that th e victim did not learn these things at home. He told the officers that it was possible that the v ictim was sexuall

y active.

The defendant also asserted that he did w hat he did because he wanted to keep the victim satis fied within the boundaries of hi s home to prevent her from getting a venereal disease from a stranger. The defendant sta ted that “more actually happened here than there.” He cl aimed that initially he went along with i t to keep the victim from seeking her satisfaction somewhere els e and becoming physicall y injured. He said that a couple of times, he and his wife discussed what could be do ne with their daughter within the confines of the home, and he stated that they did not know who they could turn to for help. The defendant suggested that therapy was needed for the victim “to see what

makes her tick,” and he tol d the officers that if everything was kept quiet, there would not be a problem. Regarding his conduct, the defendant said that he7

did not feel it was totall y right but that he did

not know who to ask for therapy to keep the victim quieted dow

n.
The defendant’s second taped statement reflects that the defendant admitte d that th e victim ha d kissed h is penis a nd put it i n her mou th for ab out five seconds “two, maybe thr ee times” over a four to sev en day period. He said that the oral
sex occurre d no more than thre e times an d that it h ad been o ver one mo nth or fi ve weeks sinc e the last incident took plac e. He claim ed that t he victim d id it on he r own without him asking her to do it. The defendant said that it took place in the victim’s bedroom while he was l ying on her bed asleep. He stated that he was asleep on the victim’s bed because his wife and children had fallen asleep on his bed, and he said that the victim came into th e room. The defendant admitted that he took some o f the pictures that the officers found in a drawer in his bedroom, i ncluding a picture of the victim with her legs spread open. He said that the victim saw the picture and told him that it was a good pic

ture. The defendant told the officers that he did not know whether the victim saw the pi cture he took of his wife. H e also said that he did not know whether the victim had seen the magazines, movies or other photos taken from his house. The defendant told the officers that he di d not know whether the v ictim had observed him and his wife engaging in simil ar sexual acts, but he deni ed performing oral sex with his

wife in front of the victi m. The defendant conceded that the victi m may have seen him licking

his wife.
The videotaped interview of the defendant by Mr. Britton s hows that the defendant told Mr. Britton that he had gotten himse lf into a mess by being stupid. He said that he was only doing it to please his daughter and that the victim told him that it made her happy. The defendant claime d that his daughter led him into it and that it was a “spur of the moment thing” that he did not really think about at the time. He stated that he did not force the is sue. The defendant asserted that he did not know8

why the victim w

anted to do these acts and that he did not know whether she h ad had sex with anyone. He told Mr. Britton that the events occurred for a few days and that it had been approximately si x weeks ago sinc

e the last incident occurr ed. The defendant conceded that he took one of the pictur es with her legs s pread apart, but he claimed that he did not take the other pic tures.
On cross-examination, Sh eriff Mercer testified that the de fendant was cooperative. He said that the defendant helped him locate things when he searched the defendant’s house. He stated that the defendant told him and Mr. Britton that his sexual relations w

ith his daughter ended before the investigation began.Sheriff Mercer testified that news reporters had been to the station and videotaped in the jail once before. He admitted that Mr. Britton may have seen some of the evidence in the case while at the jail beca use he questioned the defendant about the ph otographs and other items taken from the defendant ’s house. Sheriff Mercer stated that he did not show Mr. Britton the photographs. H e conceded that he spoke to the defendant’s attorney regarding his concer

n about the defendant’s mental condition because the defendant was not eating correctly and acted differently.He stated on redirect ex amination that the defendant was eating proper ly at the time of the trial.

I. SUFFICIENCY OF

THE EVIDENCE - ELEC TION OF OFFENSES The defendant contends that the evidence i s insufficient to support the jury’s verdict

of guilt for three counts of rape of a child and two counts of agg ravated sexual battery because the testimony is inconcl usive as to when and how many times the events occurred. He argues that “it is mater ial how many times the a ctions complained of happened and what actuall y happened.” The defendant complains tha t from the evidence presented at tr ial, it is impossible to determine that the defendant committed three separate acts of rape of a child and two separate acts of aggravated sexual battery. The defendant as serts that the jury co uld not have determined wh ich of9

the defendant’s acts constituted which convictions. He claims that the jury essentially found the defendant guilty of each cha rge without requiring specific proof for each conviction. In support of his claims, the defendant cites State v. Burlison , 501 S.W.2d 801 (Tenn. 1973), and State v. Shelton , 851 S.W.2d 134 (Tenn. 1993). In response, the state contends that the evi dence is sufficient to support hi s convictions and that the failure to elect is harmless error because it can be concluded beyond a reaso nable doubt that the jury’s verdict for each count was unanimous. W e hold that the evidence is sufficient and that the failure to elect is harmless bey

ond a reasonable doubt.

A. SUFFICIENCY OF THE EVIDENCE Our standard of review when the sufficiency of the ev idence is questioned on appeal is "whether, after v iewing the evidenc

e in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements o f the crime beyond a reasonable doubt ." Jackson v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). This means that w e do not reweigh the ev idence, but presume that the jury has resolv

ed all conflicts in the test imony and drawn all r easonable inferences from the evidence in favor of the s tate. See State v. Sheffield , 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978).

In the light most favorabl e to the state, the evidence es tablishes that the defendant stuck his penis in the v ictim’s mouth four or five ti mes. It also shows that the defendant’s penis slightly went inside the vic

tim’s vagina on one occ asion when the defendant was attempting to sti ck his penis inside the v ictim. These facts prove bey ond a reasonable doubt that the defendant penetr ated the victim as defined in T.C .A. § 39- 13-501(7). A rational tr ier of fact could have found the defendant g uilty of three counts of rape o f a child . The evid ence also establis hes that the def endant c ommitte d two counts of aggravated sex ual battery. The defendant tried t o stick his penis in the victim’s vagina on four different occasions and on the last occasion, th e defendant’s1 We note that the defendant in thi s case did not r equest that

an electi on be made, although he f iled a moti on for a bil l of part iculars.Before tri al, t he trial court deni ed the defendant ’s motion for a bill of partic ulars. In ruling on the m otion, the trial co urt stated th at the defe ndant w as not en titled to more specific al legati ons because the i ndictment suffi cientl y infor med the defendant of t he offense for which he was indi cted in t hat the term penetratio n was defined by statute and the indi ctment narrowed the offense to a period of two weeks to a month. In State v. Shelton , 851 S.W.2d 134 (Tenn. 1993), our supreme court recogni zed the i mportance of a bil l of part iculars in rel ation t o the defendant ’s preparat ion of his defense, one of the reaso ns stated i n Burlison for the elec tion require men t. Id . at 137. However, 10 penis went inside the victim’s vagina a little. The unlawful sexual contact occurred while the victim was on her bed, on the floor, on her mother’s bed, and in a chair. On each occasion, the defendant tried to st ick his penis inside the victim more than once. The victim also played with the defendant’s penis while they were lying on the defendant’s bed. Also, the defendant licked the victim’s vagina. Based on these f acts, the jury could rationally conclude beyond a reasonable doubt th at the defendant committed three rapes of a child and two aggravated sexual batteries.

B. ELECTION OF OFFE NSES In Burlison v. State , 501 S.W.2d 801 (Te nn. 1973), our supreme court held that the submission of evidence of multiple rapes by the defendant upon the victim when each of the several rapes so proven would meet the allegations of the charge in the indictment made it “the duty of the trial judge to req uire the State, at the close of its proof-in-chief, to elect the particular offe nse of carnal knowledge upon which it would rely for convictio n, and to properly instr uct the jury so that the v erdict of every jur

or would be united on the one offense.” Id . at 804; see State v. Rickman , 876 S.W.2d 824, 829 (Tenn. 1994). The court gave three reasons fo r these requirements:

First, to en able the defendant to prepare for an d make his defense to the specific charge; se cond, to protect him from double jeopardy by indiv idualization of the issue; and third, so that the jury’s verdi ct may not be a matter of choice be tween offenses, some jurors con victing on one offense and others, another. Id . at 803. Because the requir ement that the state make an election of the particular offense for which it will rely on for each conviction is “fundamental, immedia tely touching the constitutional rights of the accused,” id . at 804, election is required even if the defendant does not make a request. 1 See State v. Ho yt , 928 S.W.2d 935, 946the defendant does not rai se as an issue on appeal the tri al court’ s denial of the motion for

a bill of particulars

. 11 (Tenn. Crim. App. 1995) (tri al court’s failure to req uire the state to elect the offense for which it seeks a conviction when the proof requires an election is considered plain error). Moreover, “an appellate court’s finding that the evidence is sufficient to supp ort convictions for any of the offenses in evidence is an inadequat e substitute for a jury’s deliberation over identified offenses.” Shelton , 851 S.W.2d at 138.

In Shelton , our supreme court noted that the risk to the defendant’s abili ty to prepare and defend has been greatl y obviated, as a pract ical matter, because of rules relating to discovery and bills of particulars. 851 S.W.2d at 13 7. The court also noted that the risk relati ng to double jeopardy has effectively been ended by the creation of the rule prohibiting a second prosecution for oth er similar offenses which are shown to have occurr

ed within the time frame cov ered by the charging

instrument in the first prosecution. Id . Although the court recog nized that an election at th e end of the state’s proof does little to aid in defense preparation, it c ontinued the requirements of election and jury unanimity instructions in or der to protect the defendant’s constitutional right to a unanimous jury verdict. Id

.

The Shelton court viewed the most serious concern to be the s tate constitutional requir

ement that a criminal convi ction be based only upon a unani mous jury verdict. Id . at 138. “A defendant’s right to a unanimous jury before conv iction requires the trial c

ourt to take precautions to ens ure that the jury delibe rates over the particular charged offense, i nstead of creating a ‘patchw ork verdict’ based on different offenses in evidence.” Id . at 137 (citing State v. B rown , 823 S.W.2d 576, 583 (Tenn. Crim. App. 1991)). With regard to j ury unanimity, this court stated that:

in cases involving evidence whic h shows a real potential that a conviction may occur

as a result of different

jurors concluding that the defendant committed diff erent acts, each of which separately showing the commissio n of an offense, the trial court must augmentthe general unanimity instruction to insure12 that the jury understands its duty to agree unanimou sly to a particular

set of facts. The assessment of this potential would involve consideration of the allegations made and the statutory offense charged, as well as the actual evidence present ed. Brown , 823 S.W.2d at 583.

In this case, the indictment w as neither time nor place specific. The indictment charged the defendant w ith three counts of rape of a child,alleging in the first count that the offense occurred “ between June 1 and July on the 15 day of 1993,” in the second count that the offense occur red “on or between June 1 and July 15, 1993,” and in the third count th at the offense occurred “between the month of June and early July, 1993.”

The defendant was also indicted for two counts of aggrav ated sexual battery, alleging

in counts four and five that the o ffenses took place “between June and early July, 1993.”

Althoug h the defe ndant w as indi cted for

only th ree counts of rape of a child, the state introduced e vidence of more than three penetra tions by the defendant. The victim stated that the defendant stuck his pe nis in her mouth four or five times while she was in a chair in

the kitchen at night. She a lso said that the defendant’s penis went inside her a little the l ast time he tried to stick his penis inside her v

agina. In a statement to Sheriff Mercer, the defendant conceded that the victim had pe rformed fellatio on him, but he claimed that it happened no more than three times and that one incident occurred in the v ictim’s bedroom. Each act by the defendant constituted penetration as defined in T.C.A. § 38- 13-501(7) for a convicti on of rape of a child. However, the trial court did not require that the state elect which offense they were relying on for each count in the indictment.
With regard to the charges of aggr avated sexual battery , the state presented the victim’s testimony that the defendant tried to stick his penis in the victim’s vagina on the victi m’s bed, on the floor, in the chai r, and on the defendant’s bed. The13

victim testified that the defendant ’s penis would not go inside even though the defendant

made mor

e than on e attempt

on each occasio n. The def endant t old Sher iff Mercer that he allowe

d the victim to play with his penis whi le he was lying on his bed. He also told Sheriff Mercer that he had licked the vic tim’s private parts. He said that he had take n the hea d of his p enis and rubbed it through t he victim’ s private p arts on two or three occasions. Under these circumstances, elect ion was required.
We note that during closing argument, the prosecutor argued that the aggravated sexual

batteries were establ ished by the victim’ s testimony that the defendant tried to stick his “ tutu” in her “tutu” w

hile she was on the bed, w hile she was on the floor, and while she w as in the chair. This li miting of the proof by the state does not satisfy the requir

ements of election. The trial cour t must require the state to elect at the close of its proof-in-chi ef. See Burlison , 501 S.W.2d at 804. Moreover, the indictme nt charge s the def endant wi th only two c ounts of aggravated sexual bat tery, and therefore, the state’s reliance on three instance s of unlawful sexual contact is insufficient to satisfy the requirements of election under Burlison

.

When charging the jury, the tri al court instructed the j ury that the three counts alleging rape of a c hild charged separate and di stinct offenses as to each count. It told the jurors that they must decide each charge separ ately on the evidence and the law applic able to it . The tria l court gave a similar i nstructi on with rega rd to the t wo counts o f aggravat ed sexual battery, a nd it inst ructed th e jury that a total of five separate judgments or ver dicts must be returned. The tr ial court gave another

general jury instruction r

egarding the requir

ement of a unanimous verdict: The verdict must repre sent the consid ered judgm ent of each juror. In order

to return a verdict it is necessary that each juror agree thereto. Your verdict must be unanimous. It is your duty as jurors to consult w

ith one another and to deliberate with a vie w to reaching an agreement, if y ou can do so without violence to indivi dual judgment. The record reflects that the jur y returned separate v

erdicts of guilt on each ch arge.14 The lack of indictment specificity and the evidence of multiple offenses warranted state election and an appropriate jury instruction under Shelton and Brown

. In this case, the trial court’s failure to require an election constituted error. However, the state’s introduction of ev idence of additional sexual offenses committed by the defendant did not violate the defendant’s rights against doubl e jeopardy. The defendant is protected from double jeopar dy because he cannot later be prosecuted for conduct of the same nature as that char ged in the indictment that occ urred during the time alleged in the indic tment. See Shelton , 851 S.W.2d at 137.

Moreover, the failure to elect can be harmless beyond a reasonable doubt in an appropriate case. See Shelton , 851 S.W.2d at 138. That is, the evidence may be of such a quality that no r eal risk of a patchwork verdict exists. Id

.

In Shelton , the defendant was charged w ith one count of aggravated rape of one of his three step-granddaug hters and two counts of agg ravated sexual battery of the other two step-granddaughters. The victim of the aggravated rape testified in very general terms that the defendant digitally penetrated her and her two sisters on more than one occasion, but she descr ibed in detail one incident that occurred on her birthday when the defendant w as partially succes

sful at his attempt to penetrate the victim with his penis. Id . The medical expert testi mony was that there w ere clear signs of sexual abuse. Id . The court determined that it w as error for the trial c

ourt to fail to require the state to elec t offenses but concluded that the Burlison error with rega rd to the aggravated rape co unt was harmless beyond a reasonable doubt because “the jurors must have consid ered the evidence of this particular incident in conv icting the defendant of aggravated rape.” Id

.

With regard to the remaining two c ounts of aggravated sex ual battery, the court held that the Burlison errors were not har mless beyond a reasonable doubt. Id . at15

139. Important in this determin ation was “the nature of the ev idence” presented with regard to each charge. Id . One victim testified tha t the defendant fondled her and digitally penetrated her on more than one occasion, but she did not differentiate one event from the others. Id . With respect to that victim, the medic al expert only found evidence of irritation i n the victim’s genit al area. Id . The court reversed the defendant’s conviction because in “ view of the nature of the ev idence and the Burlison error resulting from the state’s failure to elect,” the conv ictions could not be sustai ned. Id

. The other victim did not tes tify, and medical proof found no evi dence of irritation or any other physical proof. Id . The only proof establishing the offense “was the brief and thoroughly non-specific testimony of the other two victims . . . .” Id . The court not only determined that there was a Burlison error but also concluded that the evidence was insufficient to sustain the conv iction. Id

.

We hold that the evidence in this case is of such a quality that ther e was no risk that the jury’s verdicts were less than unanimous and that the failure to require election was harmless beyond a reasonable doubt. In th is sense, the case is unusual in that there was no actual contest of the facts. The victim’s testimo ny in this case specifically detailed the events that took place, and her testimony was di rect, clear and certain. The defendant’s statements to Sheriff Mercer and Mr. Bri tton reflect that the defendant readily admitted his u nlawful conduct and provi ded them with details of unlawful sexual conduct with the victim i n addition to those described b y the victim. The defendant even gave a statement t o a television news reporter regarding his unlawful conduct. Moreover, neither the defendant’s cross-examination of the victim nor his development of the evidence related in any fashion to an attack on the victim’s testimony about the nature, the number, or the location of the rapes or aggravated sexual batteries. In fact, the cross-examination of the victim consisted sol ely of general questions regarding

to whom the victim spok e about the offenses and whether the defendant stopped when she told him it hurt. Furthermore, the defendant’ s closing16

argument essentially requested that the jurors consider the evidence and render a decision based upon the evidence. In fact, we note that the defendant’s brief also states that it is not his intention to assert “that nothing happened at the Defendant’s home between himself and his daughter.”

Also, as previously

noted, the state identified four speci fic instances of aggravated sexual battery during its closing argument for which it relied upon for a conviction. In addition, defense counsel told the jury during closing argument that it must “look at all the facts as they were presented on each separate count and make an individual decision .. . and discuss each one of them sepa rately, five decisi ons you have to make, five different counts .” The trial court’s i nstructions to the jury stressed its need to decide each charging count as a separate and distin ct offense and to consider the evidence relativ

e to each separate charge. Li kewise, it gave the general instruction about the need for a unanimous verdict, and the jury returned verdicts for each individual count. Alth ough an instruction on the r equirement of jury unanimit y, is “an inadequate substitution for Burlison ’s expl icit re quirem ent that

the pros ecution identif y the specific offenses for which it seeks conviction,” Shelton , 851 S.W.2d at 136, th e fact that a jury unanimity instruction is given is relevant to the determination of whether a Burlison error is harmless bey ond a reasonable doubt. We believe that the circumstances in this ca se totally negate any

real risk that the jur

y was not unanimous in deciding whether three separate acts of rape of a chil d and two separate acts of aggravated sexual

batteries occurred. We also believ e that there was no risk that the jury would not be unanimous in relating the separate acts to separate charging counts.

We note that in Tidwell v. State , 922 S.W.2d 497 (Tenn. 1996), the supreme court addressed in a pos t-conviction setting

whether the petitioner r eceived the ineffective assistance of tri al counsel because counsel di d not request that the state elect the particular offense upon w hich a conviction w

as sought. In Tidwell , the17

petitioner was charg ed with fourteen counts each of rape, statutory rape, inces t, and contributing to the delinquency of a minor, each type of off ense occurring on a monthly basis over a fourteen-month period between December 198 5 and January 1987. Each count al leged t hat the petition er committed a specific o ffense on the “___”

day of a named month. The proof showed that the sex ual activity betw

een the petitioner and the victim, including cunnilingus, fellatio, and vaginal intercours e, began in December 1985 and ended in January 1987, and that it occurred approximat ely once a week. The victim was not able to match a particular act to a specific time, either by date or by other reference. She described tw o discrete incidents w

ith particularity as to the date and the type of sexual activ

ity. Also, the petiti oner confessed before trial that he h ad engaged in sexual i ntercou rse with the victim and that the last incid ent occu rred thre e days before his arrest.

The supreme court rejected the state’s argument that “‘jury unanimity is attained in such cases because, although the jury may not be able to distinguish between the various act s, it is certainly

capable of unanimously agreei ng that they took place in the number and manner described.’” Id . at 501. The court reasoned that th e “approach . . . is akin to a ‘grab-bag’ theory of justice.” Id . It illustrated this theory by example: To illustrate the operation of this theory, in any gi ven case the State could prese nt proof on as m a ny off enses within the alleged period as it chose. Becaus e all such offenseswill have been “proven,” the jury

may, in effect, reach into the br imming bag of offenses and pull out one for each count. Ev en when done by this method, the arg umen t goes, each offense will have been proven beyond a reason a ble do ub t. We ackno wledge that the illustration is an extreme one, but w e think that it makes the point: su ch an app roach is contrary to our law. Tidwell requires that there be an “apparent means to differentiate among v arious counts of the same offense” and tha t the jury be able to match a specific conduct to a specific count. See Tidwell , 922 S.W.2d at 501.18 Ultimately, the Tidwell court ruled that counsel per formed deficiently and that the deficiency resulte d in prejudice to the petiti oner, depriving him of a fair trial whose result is rel iable with regard to the convictions for w hich the proof was not specific. Id . at 502. The court stated that it was not comfortable with the reliability of the result reached in the tr ial because of the state’s inabi lity to match occurrenc es to those counts for which the te stimony was non-speci fic. Id . In addition, there was an “absence of varying surroundings, events,or circumstances that coul d have lent a singular identity to each incident.” Id . The court recognized its earlier ruling in Shelton , “‘If the prosecution cannot identify an event for which to ask a conviction, then the court cannot be assured of a unanimous decision. ’” Id . (quoting Shelton , 851 S.W.2d at 138). However, for three of the fourteen incidents for which Tidwell was convicted, the court held that the petitioner had failed to establish any prejudi ce. Id . The proof establishing these convictions consi sted of the victim’s testi mony specifically detai ling the dates and the nature of the offenses and the petitioner’ s confession that he engaged i n sexual intercourse with the v

ictim on a certain date. Id . at 499.

Also, this court has held that a Burlison error was not harmles s beyond a reasonable doubt when the tri al court failed to requir e the state to elect even thoug h the defendant was indicted for only one count of aggravated r ape and the proof established both oral and anal sex. State v. Clabo , 905 S.W.2d 197, 205 (Tenn. Crim. App. 1995). Before trial, the defendant initial ly denied all charg es made against him but later admitted his guilt to other crimes for which he w

as later indicted, though he did not confess to committing the offense of agg ravated rape. Id . at 201. Over the defendant’s objection, the trial cour t permitted the state to introd uce evidence of both forms of penetration. Id . at 205. Our court reasoned that the Burlison error was not harmless beyond a reasonable doubt because the state relied upon both the or al and the anal sex as proof of the aggrav ated rape. Id . The court also stated that the trial court instructed the jury to rely upon counsel’s arguments for each side’s theory of the case19

and defined penetration as includin g both fellatio and intercour se. Id . Also important in this court’s decision w

as the fact that although the indi ctment alleged that the defendant committed aggravated r ape by anally penetrati ng the victim, the rec ord did not demonstrate that the indictment w as read to the jury or that the jury was aw are of the state’s reliance upon the anal intercourse. Id

.

We believe the fact

s of this case to be disti nguishable from Tidwell and Clabo . The facts of this case do not present a situation as in Tidwell where evidence of numerous instances of sexual c onduct was introduced thr ough testimony that was not specific with regar

d to date or other references. I n this case, the proof at trial was specific in term s of the nature and the locatio n of each of the offens es, lending a singular identity to each incident similar t o the offenses in Tidwell that were particularly described. Here, the jur y was able to disti nguish between the var ious acts that occurred. Also, unlike the defendant in Clabo , the defendant admitted his guilt to the crimes for which he w

as indicted. The defendant’s evi dence lacked any potential o f diminishing the quality of the proof. Instead, the defendant’s proof related to whether the defendant stopped when the vic tim told him it hurt. The cer tainty and the quality

of the evidence presented is o f such a degree that the only rational conclusion is

that the jury determined that all of the offenses were proven bey ond a reasonable doubt. In our view, the evidenc

e does not warrant, bey ond idle speculation, an inferenc e that any juror had a reasonable doubt about any of the penetrations or unl awful sexual contacts occurring. The risk of a composite jury simply did not exist under the facts in this case. Under these circumstances, the Burlison error is harmless bey ond a reasonable doubt.

II. CHANGE OF VENUE The defendant contends that the trial court erred by failing to grant his motion for a change of venue because o f the community-wide inter est and the extensive media cov

erage that caused him to be pre judiced and prevented him from20

receiving a fair trial. The state responds that the defendant ’s claim is without merit because the defendant fails to allege and the record does not establish that the jury was biased or prejudic

ed against him. We agree.
A change of venue may be gr anted if it appears that “due to undue excitement against the defendant in the county where the offense was committed or any other cause, a fair tri al probably could not be had. ” Tenn. R. Crim. P. 21(a) . The matter of a change of venue addresses itself to the sound judicial discretion of the trial court, and its decision must be respected absent an abuse of disc retion. Rippey v. State , 550 S.W.2d 636, 638 (Tenn. 1977).

In State v. Hoover , 594 S.W.2d 743 (Te nn. Crim. App. 1979), this court set forth the relevant factors when considering a c

hange of venue. The factors to be considered are as follows:

1. Nature , extent, and timin g of pretr ial publi city. 2. Nature of publi city as fa ir or infla mmatory. 3. The pa rticular c ontent o f the pu blicity. 4. The degree to which the publicity complained of has permeated the area from which the venire is drawn. 5. The degree to which the publici ty circulated outside the area from which the venir e is drawn. 6. The time elapsed from therelease of the publicity until the trial. 7. The de gree of ca re exercise d in the se lection o f the jur y. 8. The ea se or diff iculty in se lecting th e jury. 9. The venireperson’s famili arity withthe pub licity and its effect, if any, upon them as shown through their a nswers on voir dire. 10. The defendant’s utilization of his preemptory challenges. 11. The defendant’s utilization of challenges for cause.21 12. The participation by police or by prosecution in the release of the p ublicity. 13. The severity of the offense char ged. 14. The abse nce or pr esence o

f th reats, demonstrations or other hostility agai nst the defendant. 15. Size of the area from whi ch the venire is draw n. 16. Affidavits, hearsay or opinion testimony of witnesses. 17. Natur e of the verdict ret urned by th e trial jur y. Id . at 746. For there to be a r eversal of a convicti on based upon a claim that the tri al court improperly denied a motion for a change of venue, the “de fendant must demonstrate that the jurors who actually sat were biased or prejudiced against him.” State v. Evans , 838 S.W.2d 185, 192 (Tenn. 1992).

Before trial, the defendant filed a written motion for a change of v enue. As grounds for his motion, the defendant alleged that the media cov erage of the offenses had been extensive. He argued that statements made by the defendant and comments made by law enforcement offici als to the media and disseminated t o the public were highly

inflammatory and prejudicia l to the defendant. The defendant claimed that the prejudicial information had been so widely communicated to the community that the defendant could not r eceive a fair trial.
The defendant attached to his motion a copy of three Macon County Times newspaper articles regarding the defendant’s c ase. The first article, dated August 23, 1993, is titled “Second Appearance By Macon Man on Sexual Abuse Charges” a nd conta ins a pict ure of th e defen dant in h andcuf fs being l ed away by a deputy. The article detail s the charges filed again st the defendant and Mrs. Leath. It discusses the defendant’s and Mr s. Leath’s bond status and also explains that the defendant had waived his ri ght to a preliminary hearing and that the case w ould be bound over to the grand ju ry. The article repor ts that the defendant had been2 The defendant’s an d Judy Leath’ s case had not been sever ed at the t ime of hearing on the pretrial m otions. 22 transported to an out-of-tow n jail because Sheriff Mercer had received threats concerning the defendant. It als o states that Mrs. Leath had fil ed for a divorce, alleg ing “‘cruel and inhuman treatment’ and ‘irreconcilable di

fferences.’” The article also r eports that the divorce papers s tate that Mrs. Leath had been under the duress of the defendant and fears for her personal safety . It states that Mrs. Leath had requested custody of their childre n and had obtained a restraining order against the defendant.
The second article, dated October 14, 1993, repo rts that the grand jury returned a five-count indi ctment against the defendant, two counts of aggravated rape and three counts of aggrav ated sexual battery. The third article, publish ed on December 16, 1993, reflects that a trial date had be en set in the defendant’s and Mrs. Leath’s case. The article r ecounted the nature of the charges r eturned by the grand jury.
Instead of filing affidavits av erring facts constituti ng the alleged undue excitement or other cause u pon which the motion was based, see Tenn. R. Crim. P. 21(b), the defendant called witnesses at the hearing on the pret rial motions. 2 Macon County Executive Raymond Doyle Gaines t estified that he had lived i n the county for sixty-five y

ears. He stated that the media c overage on the defendant’s case was “quite extensive .” He testi fied tha t the loca l newspape r was widely rea d in the co mmunity, describing the newspaper as being “almost a Bi ble.” He said that he had hear d several people talk about the case and that many expressed strong opinions that the defendant was guilty. C

ounty Exeuctive Gai nes testified that he believed that it would not be favorable to the defendant to have th e case tried in Macon Count y. He stated that he thought it would be difficult to find jurors who did not have any knowledg e of the case, and he expressed the opinion that the defendant could not receiv e a fair trial in Macon County.23 On cross-examination, C ounty Executive Gai nes testified that among the sixteen thousand residents in Macon County, nine thousand were registered voters. He conceded that the county population had a good base from which to draw a jury. He also admitted that most of the discus sion about the defendant’s case took pl ace a couple of months after the defendant was ar rested. County Executive Gaines said that he had not heard or seen anythi ng within the last t wo months. On redirect e xamination, he stated that he had heard some people s ay that the defendant ought to be cas trated.
Ben Holder, the mayor of the city of Lafayette, testified that he had lived in Macon County since 1952. He said that he had read news paper articles in the loc al paper and The Tennessean and that he had seen the news on t elevision about the defendant’s case during the summer. Mayor Holder stated that he d id not recall a case where there had been more discussion than the defe ndant’s case. He said that people talked about the case each time an ar ticle was in the new

spaper. He testified that he had also heard people talk about the photographs taken of the vic tim. Mayor Holder stated that he heard people say that the defendant ought to be castrat ed and that they wished they were on the jury. Mayor Holder expressed the belief that it would be hard to obtain an impartial jury because many believed the defendant was guilty.
On cross-examination, M ayor Holder testified th at most of the conversations regarding the defendant’s case took place when the case broke. He said that he was not aware of any television coverage of the case since the case initially broke. He conceded that most of the new spaper articles related to the docketing of the defendant’s case. On redirect e xamination, Mayor H older estimated that he spoke to approximately four or fiv e hundred people.

Chief of Police Buford Wix testified that he had li ved in Macon County since 1973. He said that he had read the local newspaper articles, and he stated that24

the newspaper had a fairly large circulation. He recalled hearing peo ple talking about the defendant’s case, describing the conversations as “ restaurant gossip or r umors that float around through your community.” Chief of Police W ix expressed the opinion that it would be hard to find juror s who did not have some k nowledge of the defendant’s case. He said that only one pers on had expressed an opinion about the case to him and that the person resided outside of Tenness ee.
Macon County Sheriff James Mer cer testified that he was the sheriff at the time the defendant was arrested. Sheriff Mercer stated that he r emoved the defendant from the local jail and sent him to Trousdale County for app roximately four to six weeks because he received an anony mous phone call making a threat against the defendant. He said that he did not recei ve any more threats after the defendant returned to the Macon County Jail. He testified that he had heard some talk about the case. He said that he did not recall any one expressing the opini on that the defendant was innocent, although he remembered hearing people state that they beli eved that the defendant was guilty.

On cross-e xaminati on, Sher iff Merc er testif ied that he would ha ve removed any prisoner had the same threat been made against him or her. He also expressed the opinion that an impartial jury could be impaneled althou gh it might take longer. On redirect ex

amination, Sheriff Mercer conceded that he laid the pictures he obtained from the defendant’s house on his des k, but he claimed that he did not l ay them out for the news media to photog raph. He admitted that he show ed the photographs to other people not affiliated with law enforc ement.
At the hearing on the pretri al motions, Mrs. Leath’s c ounsel summarized the videotape that was shown on Channel Five. He said that the videotape shows Mrs. Leath being fingerprinted and answering the quest ions of Mr. Britton. He s tated that the3 We note that a video si milar to t hat describe d by counsel for the defe ndant and Mrs. Le ath was introduce d at the se ntencing hearing. 25 videotape also shows nude pictures lying on a table. The defendant’s coun sel also told the court that the videotape s hows the defendant being broug ht to the jail. He stated that the videotape was s hown on television s everal times. Althoug h the videotape was not attached to the defendant’s motion or introduced at the hearing as an exhibit, 3 the trial court stated that it did not need to see the video but that it would assume that everything wa

s true because the state did not object to what counsel sai d. The trial court recognized that the video was show n on television before it del ayed its ruling on the moti on until vo ir dire of the jury.

Voir dire was conducted by questioning two groups of twenty-five people with general quest ions about the case and by del aying specific questions regarding the publicity until the v

enire could be questioned on an individual or gr oup basis. During the general questioning , a prospective juror was excused for cause because she knew the victim’s foster parents. Another was excused because of her feelings reg arding sex abuse cases. During the group questioning, a prospective juror was excused for cause because she worked on the cas e at the Department of Human Servi ces. Another was excused because of his inv olvement with young

girls and his persona l feelings with respect to sexual abuse. Four prospective jurors who recalled seeing the defendant’s interview on telev

ision were also ex

cused for cause. One of those juror s recalled seeing th e defen dant on t elevision admittin g his guilt. Of the se cond grou p of twelve prospective jurors, five were excused for cause because they knew the victim, Mrs. Leath, or other state witnesses either personally or through a close rel ative. The trial judge excused four other pr ospective jurors becau se they saw the defendant make a statement on television.

The record reflects that sev eral of the prospective ju rors had either read the newspaper articles or seen parts of the televi sion news report. How ever, the26

prospec tive j urors s

tated th at they

could di sregar

d what t hey hear

d, list en to the proof, and require the state to meet i ts burden of proof. Eight of the pros pective jurors, four of whom ultimately sat on the jury and one of whom sat as an alternate juror, said that they had neithe r read any of the a rticles nor saw the ne ws report on televisio n, although some had heard other people talki ng about the case.

Initiall y, we note th at the de fendan t does no t assert t hat the p rospecti ve jurors who ultimately

sat on the jury wer

e biased or prejudiced aga inst him. Instead, he contends that the trial judg e’s determination to try the case in Macon County is evident from the manner in which the j udge questioned three pros pective jurors in th at he interrupted the questioning to explain the burden of proof or ask whether the juror could listen to the proof. Howev er, none of these prospective jurors served on the j ury. One of the prospective jurors was excused for cause an d the other two were c hallenged. Moreover, the trial judge’s questioning of the three jurors was proper.
With regard to the jurors who act ually sat on the jury , the record does not establish that the jurors were biased or prejudi ced against the defendant. We agree that the information contained in the articles regarding the defendant being moved to an out-of-coun ty jail due to threa ts and Mrs. Leath ’s filing for divorc e and obtainin g a restraining order w

as prejudicial to the defendant. The videotape of the interview of the defendant was prejudicial as well. Howev

er, the defendant’s trial w as conducted on June 13, 1994, approximately ten months after the first newsp aper article and the television news r

eport and approximately six months after the last new spaper article. Furthermore, the jurors w ho had either read the newspaper articles or had seen par t of the television news report stated that they coul d base their decision on the pr oof presented at trial and req uire that the state meet its bur den of proof. Those jurors who had seen the interview

of the defendant on television w ere properly excus

ed. Moreover, four of the juror s and the alternate juror s tated that they had not read or seen27

anything regarding

the defendant’s case, although some had heard other people talking about the case. They too stated th at they could be fair. Becaus e the defendant has failed to establish that the actua l jury was prej udiced, we hold that the is sue is without merit. The trial court di d not abuse its discretion by denying the defendant’s motion for a change of venue.

III. INTRODUCTION OF TESTIMONY REGARDING PHOTOGRAPHS The defendant complains that the trial court erred by allow ing the admission of inflammatory and prejudicial testimo ny regarding photographs of the victim and her mother naked when the defendant w as not charged with a crime involving the photographs. He argues that the crimes for which he was charged did not r equire a showing of the defendant’s state of mind or intent. Although not r aised as a separate issue or contained within the statement of the issue, the ar gument portion also includes a claim that the trial cour t erroneously allow

ed the state to introduce into ev idence a photograph of the victim as Exhibi t 9. He contends that the photog raph is irrelevant and inflammatory and that the photog raph is more prejudicial than probative, denying him his constitutional ri ght to a fair trial. Ini tially, we note that

the procedure used by the defendant, stating one issue in the statement of the issue but argui ng another issue within the text of the ar gument, does not comply w ith the requirements of T.R.A.P. 27(a)(4) and (7). Nev

ertheless, the defendant is not enti tled to relief on either gr ound.
The state responds only to the defendant’s argument that the photogr aph was erroneously admitted into evidence, asser ting that the record demonstr ates that the state did not attempt to introduce any photographs at trial and th at Exhibit 9 is a permission to search form, not a photograph of the victim. We agree.

Before trial, the defendant filed a motion to suppress the photographs claiming that the photogr aphs were more prejudici al than probative under Ru le 403,28

Tenn. R. Evid. We note that the defendant’s motion mis states the balancing test us ed for a Rule 403 analysis. Pursuant to Rule 403, Tenn. R. Ev id., relevant “evi dence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues , or misleading the jur y, or by considerations of undue delay, waste of time, or needless presentation of cumula tive evidence.” (Emphasis added). The trial court delayed its ruling on the motion until trial.

During the direct ex

amination of the victim, the pr osecutor asked the victim whether the defendant and Mrs. Leath took nude picture s of her and of each other around the house. Defense couns el objected to the testimony concerning the pictures based upon its ir relevancy because the d efendant had not been charged with a crime regarding the t

aking of the pictures. Dur ing a jury-out hear

ing, the prosecutor informed the trial court that i t had approximately fifty pictures and that one of the pictures showed the v

ictim’s mother naked with her legs spread apart and another reflected the victim in a similar pose. The prosecutor stated that it did not intend t o enter the photographs into ev idence, and the trial court agreed that there was no reason to introduce them. Defense counsel said tha t his objection related to the fact that the defendant is not charged w ith a crime where intent is a necessary element and stated that he objected to the use of the pictures or any descr iption. In response, the prosecutor argued that the testimony was relevant to rebut the defenda nt’s claim that it was the victim’s idea and not his.

The trial court ruled that the photographs themselves were inadmissible but that the state could elicit testimony from the victim concerning the def endant’s taking pictures of the v ictim. The court reasoned that the testimony was not bei ng introduced for the purpose of establi shing the defendant’s intent, but rather the testimony was relev

ant to show that the vic tim was accustomed to being naked and to show a pattern and design of conduct. The prosecutor then ask ed the victim whether29

the defendant ever took pictures of her and whether she had her c lothes on or off. The victim answered that

the defendant took pictures of her and th at she had her clothes on and off when he took the pictures.

During the direct ex

amination of Sheriff Mercer, the pros ecutor handed Exhibit Nine to Sheriff Mercer and asked him to identify it. Sheriff Mercer identified the exhibit as a permission to search. Sheriff Mercer then testified tha t he went to search the defendant’s house a second time be cause he had received information that there were some pictures. The prosecutor asked Sheriff Mercer whether he fo und at least one picture of the victim, and the defendan t objected, stating as grounds for his objection that he had not been charg ed with any crime i nvolving the photog raphs. The trial court stated that it had earlier ruled that te stimony about the picture of the child was admissible. Then, Sheriff Mercer testified that he found one picture of the v ictim, and the state entered Exhibit N ine into evidence.

Evidence that the defendant took a nude photograph of the victim w as also introduced through the videotaped interview of the defendant by Mr. Britt. When asked whether he took any photographs of the victim, the defendant admitted that he took one picture of the victi m with her legs spr ead apart. Although the proof does not show exactly w

hen the picture was taken i n relation to the charged c onduct, the defendant told Mr. Britt that the sexual conduct took place on ly for a few days and that it had been approximately si x weeks since the l ast incident occurred.
We note that when objecting to the introduc tion of testimony regardi ng the photographs, the defendant did not cl early articulate w hich rule of evidence he w as relying upon for the ex

clusion of the evidence. The defendant p hrases his argument on appeal in a similar manner. Although at first glance, his claim appears to be based solely upon relevancy under Rules 401, 402 and 403, Tenn. R. Evid., the defe ndant’s30

assertion that he was not charged with a crime involving the photographs relates more to the exclusion of prior bad acts under Rule 404(b), Tenn.R. Evid. A timely objection for purposes of preserving the issue for appeal must state “ the specific ground of objection if the specific gr ound was not apparent from the contex t.” Tenn. R. Evid. 103(a)(1). Although the defendant should have stated the gr ounds for his objection more clearly, we c

hoose to address the issue on the merits.

Pursuant to Rule 402, Tenn. R. Evid., relevant evidence is admissible unless provided otherw ise by constitution, ev

identiary rule, or other Tennessee rule or law. Evidence is relevant if it has “any tendency to make the exis tence of any fact that is of consequence to the determination of th e action more probable or less probable than it would be without the evidence.” Tenn. R. Evid. 401. Our court has stated that “the trial court is entitled to draw upon common sens e, general knowledg e, and its understanding of human conduct and m otivation in assessing whether evidence could reasonably affect an assessment of the probability of the fact to be inferred.” State v. Hayes , 899 S.W.2d 175, 18 3 (Tenn. Crim. App. 1995). Relevant evidence, however, “may be excluded if its probative value is substantially outwei ghed by the danger of unfair prejudice, confusion of the is sues, or misleading the j ury, or by consider ations of undue delay, waste of time, or needless presentation of cumulati ve evidence.” Tenn. R. Evid. 403. Whether to admit evidenc e is within the disc retion of the court, and its decision will not be overturned absent an abuse of that d iscretion. State v. Bigbee , 885 S.W.2d 797, 807 (T enn. 1994).

We hold that evidence that the defendant took nude photog raphs of the victim is relev

ant evidence under Rule 401, Tenn. R. Evid. The trial c ourt’s stated reason for admitting the ev idence was to show tha t the victim was ac

customed to being naked and to show a pattern and d esign of conduct by the defendant. We agree that the testimony was rel evant for these purposes. Mo reover, for aggrav ated sexual4 We note that language cont ained in McCary , 922 S.W .2d a t 514 , sug ges ts tha t spe cific intent is not a necessar

y element of agg ravated sexual battery . However, i n an unpubli shed order on petition to rehear, our supreme court clarified that “specific intent is a necessary element of sexual battery and aggravated sexu al battery.” State v. Donald C. McC ary , No. 03-S-01- 9410-CR-00106, Hamilto n County (Tenn. July 8, 1996) (Order De nying Petition to Rehear). 31 battery purposes, the stat e was required to pr

ove that the defendant’s touching of the victim’s vagi na with his penis w as intentional and for the purpose of sexual arousal or gratification. See T.C.A. § 39-13-501(6) and -504 (a); Hayes , 899 S.W.2d at 183. 4 Although the trial court did not admit the evidence for purposes of establishing intent, we hold that evidence th at the defendant took photographs of the v ictim is relevant to show the defendant’s state of mind w ith regard to the agg ravated sexual battery

.

We also hold that the evidence was admis sible under Rule 403 wi th respect to the aggrav

ated sexual battery cha rges. We recognize that testimony that the defendant took nude photographs of the victim was prejudicial to the defendant’s case in that the jury could ha ve impermissibly i nferred that because the defendant committed the uncharged acts, he also c ommitted the acts for which he was on trial. See McCary , 922 S.W.2d at 515. However, the evi dence was relevant to the issue of intent in light of the defendant’s statement that his con duct was not for the purpose of gratifying his desire for pleasure or ex citement. Also, the defendant told the television news r eporter that the sexual conduct occurred over a few days and that it took place approximately six weeks earli er. Thus, the close proxi mity in time to the charg ed conduct increases the probative value of the ev idence. Therefore, we conclude that the probative val ue of the evidence was not sub stantially outweig hed by any danger of unfair pr ejudice to the defendant.

The evidence was also admi ssible under Rule 404(b) with respect to the aggravated sexual

battery charges. This

rule provides a gener

al prohibition for evidence of other crimes or acts that are independent of the offenses on trial in “recognition that such e vidence easily res ults in a jury improperly convicting a defendant32

for his or he r bad charac ter or appar

ent propensity or disp

osition to c

ommit a crime regardless of the strength of the evidence concerning the off ense on trial.” Rickman , 876 S.W.2d at 828. However, Rule 404(b ) does allow such ev

idence when it is rel evant to a litigated issue, s uch as, identity, intent, or rebuttal of accident or mi stake, and its probative value is not outweighed by the da nger of unfair prejudice. See State v. Parton , 694 S.W.2d 299, 303 (Tenn. 1985); State v. Hooten , 735 S.W.2d 823, 824 (Tenn. Crim. App. 1987).

In this case, the defendant’s taking of nude p hotographs of the victim qualifies as prior bad ac ts under Rule 404(b). See McCary , 922 S.W.2d at 513. As mentioned earlier, testimony about these acts was rel evant to the issue of whether the defendant’s touching was i ntentional for a conviction of aggravated sexual

battery. In a similar case, our court has held that “given the timing of the defendan t’s acts and their relevance to the defendant’s intent in touching the vi ctim, we fail to see the ex istence of any unfair prejudice, as opposed to that prejudice which naturally flows from all admissible evidence and is intended to persuade the trier of f act.” Hayes , 899 S.W.2d at 183 (admissible prior bad act evidence of the defen dant french kissing the victim during the summer the defendant comm itted aggravated sexual battery). We also hold that the probative value of the evidence is not outweighed by the danger of unfa ir prejudic e. The tri al court d id not ab use its di scretion in permit ting the t estimon y relative to the aggravated sex

ual battery charges.

However, with

respect to the rape charg es, the evidence of the nude photographs would be les s probative relativ

e to the elements required to be proven for the commission of the offenses. Intent is n ot an element of the crime of rape of a chil d. In McCary , our supreme court indicate d that the three instances in w hich evidence of uncharged crimes may be ad mitted under Rule 404 -- (1 ) to prove identity (including motive and common scheme or plan) , (2) to prove intent, and (3) to rebut a claim of33

mistake or accident if asser ted as a defense -- depend upon whether they are material issues in the given case. 922 S.W.2d at 514. In the present case, neither the offender’s identity nor his intent were material i ssues relative to the offenses involving rape of a child. Likewis e, the defendant did not claim mistake or accident relative to these offenses. Thus, the probat ive value of the evidence is substantially reduced in
re la ti on to th e d an ge r o

f u nf ai r p re

ju di ce re la ti ve to th e r ap e of a ch il d offe ns es . We believe that the danger of unfair prejudice outweighs

the probative value of the evidence for these particul ar offenses. See Tenn. R. Evid. 404(b). H owever, the trial court’s erroneous admission of the evidence relative to the rape of a child offenses is harmless given the ov

erwhelming proof of the defendant’s guilt. See T.R.A.P. 36(b); Tenn. R. Crim. P. 52(a).

Regarding the defendant’s cl aim that a picture of the vic tim was erroneously introduced at trial, we hold that the record clearly demonstrates that Exhibit Nine is in fact the permissi on to search form signed by the defendant on July 19, 1993. When asked to identif y Exhibit Nine, Sheriff Mercer identified the exhibit as a permission to search form. We note that the Cer tificate of Appellate Record conta ined in the technical record r eflects that Exhibit Nine is a photograph and that the or iginal exhibit is contained i n the appellate record of Judy Leath’s case. Howev

er, a review of the appellate record in Judy Leath’s case shows that E xhibit Nine is a per mission to search form. Thus, the defendant mistakenl y believed that the ex

hibit was a picture, and the trial court did not err.34 IV. SENTENCING The defendant asserts that the eighty -year sentence imposed by the trial court is excessive and unfair. The defendant concedes th at the trial court appropriately applied enhance ment fa ctor (15), but he ass erts that the trial c ourt shou ld not ha ve applied enhancement factors (2), ( 7) and (16) and that it impro perly failed to consider any mitigating factors. The defendant also contend s that the trial court erroneously ordered the defendant to serve hi s sentences consecutivel y. We hold that the trial court inappropriately

applied factors (2) and (16) to all convictions an d factor (7) to the rape of a child convictio ns. We also conclude that the trial court failed to consider applicable mitigating

factors. We believe, however, th at the mid-range sentences imposed by the trial cour t for each conviction are warranted in this cas e and that consecutive sentences are supported by the record.
Appellate review of sentencing is de novo on the record with a presumption that the trial co urt's determinations are c orrect. T.C.A. § 40-35-401( d). As the Sentencing Commission C omments to this section notes, the burden is now on the defendant to show that the sentence is improper. T his means that if the trial court followed the statutory sentencing procedure, made findings of fact that are adequately supported in the record, and gave due consideration and proper weight to the fa ctors and principles that are r elevant to sentencing under the 1989 Sentencing Act, w e may not disturb the sentence even if a different result were pr eferred. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

However, "the presumpti on of correctness which ac companies the trial court's action is conditioned upon the affirmative showi ng in the record that the tr ial court considered the sentenci ng principles and all relevant facts and circums tances." State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). In this respect,for the purpose of meaning ful appe llate revie w,5 For Class A fel onies committed on or af ter July 1, 1995, t he presumptive sentence is the midp oint of the ra nge. See T.C.A. § 40-35-210(c). 35

the trial court must place on the record its reasons for ar riving at the final sentencing decisi on, identify themit igating and enhancement factors found, state the specific facts supporting each enhancement factor found, and articulate h ow the mitigating and enhancement factors have beenevaluated and balanced in determining the s entence. T.C.A. §

40-35-2 10(f) (1990). State v. Jones , 883 S.W.2d 597, 59 9 (Tenn. 1994).

Also, in conducting a de novo review, we must consider (1) the evi dence, if any, received at the t rial and sentencing heari ng, (2) the presentence r eport, (3) the principles of sentencing and arguments as to sentencing alternatives, (4) the natu re and characteristics of the c riminal conduct, (5) any mitigating or statuto ry enhancement factors, (6) any statement that the defendant made on his own behalf and ( 7) the potential for rehabilitation or treatment. T.C.A. §§ 40-35-10 2, -103 and -210; see Ashby , 823 S.W.2d at 168; State v. Moss , 727 S.W.2d 229, 236-37 (Tenn. 1986).

The sentence to be imposed by the tr ial court is presumptiv

ely the minimum in the range unless th ere are enhancement factors present.T.C.A. § 40-35- 210(c). 5 Procedurally, the tr ial court is to increa

se the sentence within the range based upon the existence of enhancement factors and, then, reduce the sentence as appropriate for any mitig ating factors. T.C.A. § 40-35-210(d) and (e). The wei ght to be afforded an existing factor is left to the trial court's discretion so long as i t complies with the purposes and principles of the 1989 Sente ncing Act and its findings are adequately supported by the record. T.C.A. § 40-35-210, Sentencing Comm ission Comments; Moss , 727 S.W.2d at 237; see Ashby , 823 S.W.2d at 169.

At the sentencing hearing , Bill Hyden, a probati on officer, testified that he conducted a presentence inves tigation. He stated that the victim and her brother had been placed in a foster home. Mr. Hyden said that during his interview of the

defendant36

regarding the offense, the defendant w as “bluntly asserti

ve” and told him that he believed he was sati sfying the victim’ s sexual desires. H e stated that the defendant denied that he committed the crimes for his own desire for plea sure or excitement, claiming that he did it al l for the victim. He sa id that he questioned the defendant about his remor se for co mmittin g the crime s, and th e defen dant tol d him tha t he would h ave done things differently if he had it to do over again. M r. Hyden testified that the defendant did not express any concern for the victim and s tated that it was obvi ous to him that the defendant had no remorse. He stated that the defendant also denied taking photographs of the v ictim and having pornog raphic movies. He ack nowledged that a mental evaluation had been performed on the defendant before trial but that he had been determined to be competent to stan d trial. Mr. Hyd en testified that he believed the victim would have emotional and mental scars because she would remember what happened and people w ould ask her about it. He al so believed that the potential for bodily inju ry to the victim w as great based upon the vi ctim’s testimony that it hurt when the defendant tri ed to stick his penis ins ide her.

On cross-examination, Mr. Hyden acknowledged that the defendant did not have a prior crimi nal record. He also sai d that the defendant’s mother and former employers expressed s urprise by the defendant’s c onduct. In Mr. Hyden’s opinion, the defendant appeared to be intelligent . He testified that the defendant acted l ike he believed that he d id not do anything wro ng. Mr. Hyden stated th at he did not belie ve that the defendant was being re morseful when he told him that he would have done things diffe rently. He concede d that he did no t interview the victim o r doctors, altho ugh he said that there were medi cal reports contained in the record.

The defendant testified tha t he was sorry about what happened. He explained that what he meant by the statement to Mr. Hy den that he would have done things differently was that it would not happen again because of what it had done to his37

family. He said that it had torn his family apart. The defend ant testified that the offense affected his children and caused the v ictim mental scars. He s aid that he worries about the victim. He stated that he wished that there was some way he could correct everything so that they could be a family once again.

On cross-examination, the defendant testified that the vict im liked to see him wear women’s cl othing and that she admired him. He conceded that the victi m had seen him and his wife havi ng sex perhaps once or t wice. He said that the victim left her bedroom and came and stood at their door but that he did not know if the victim was ever in the bed when he and his wife were hav

ing sex. The defendant said that he committed the offenses because the vic tim asked him to and because he w anted to make her happy. He testified that it does not necessaril y mean that he would not do something like that agai n, although he claimed that he w as sorry it happened. The defendant also claimed that every thing was done totally

for the victim and that it was not done for his own sexual gratification. He denied being aroused by the v ictim licking his penis. He said that he was playing with his daughter and doing what she asked him to do. The defendant admitted that he took separate pictures of his wife and the victim nude with their legs spread apart. He claimed that he took the picture of the victim because she asked him to, and he said that he did no t take the pictures to satisfy his own desire for sexual gratification, asserting that he “just took the pictures.”

The presentence report shows that the investigatin g officers discovered approximately fifty nude pictures under some clothes in a drawer in the defe ndant’s bedroom. It reflects that the v ictim is living

in a foster home and is undergoi ng counseling. The report sta tes that the defendant, a high school graduate, does not have a prior criminal

record. It reflects that the defendant is in good mental and physical health. The repor t contains a statement by the d efendant’s mother that the defendant was a good son as a chi ld and that he never caused any trouble. The38

defendant’s mother stated that she beli eved that something went wrong with the defendant. Regarding the defendant’s em ployment history, the presentence report shows that the defendant was e mployed from 1988 to 1993. It reflect s that one of the defendant’s employers who had known the defendant for more than thir ty years stated that the defendant was a very good employee and that she w as shocked by the defendant’s conduct. The report states that the defendant volunteered for the United States Marine Corp in 1965, advancing to the rank of s ergeant and serving thirteen months in the Vietnam War as a postal worke r. It shows that the defendant r eceived an honorable discharge in J une 1969.

The state also introduced sev eral photographs as exhi bits at the sentencing hearing. Some o f the photographs show the defendant an d his wife naked in various sexual positions, and others are individual photographs of the defen dant, his wife and the victim nude.

At the conclusion of the sentencing hearing, the trial cour

t sentenced the defendant as a Range I, standard off ender to twenty years for each rape of a child conviction and to ten y

ears for each aggravat ed sexual battery conv iction to be served consecutively to each other for an effective sentence of eighty years. The trial court applied the following enhanc ement factors provided in T.C. A. § 40-35-114: (2) the defen da nt was a leader in the co mmission of an offense involving two (2) or more criminal actors; (7) the offense involved a victim and was commit ted to grat ify the defendant’s desire for pleasure or excitement; (15) the defendant abused a position of pr ivate trust; and (16) the crime was c ommitted under circumstances under which the potential for bodi ly injury w as great.
In applying factor (2) , the trial court stated that the defendant’s wife, who was also indicted, w

as in bed with the defendant and the victim. It concluded tha t the39

factor applied based on the defendant’s ow n testimony that the vic tim was in bed with him when he and his wife w ere having sex. The c

ourt stated that factor (7) appl ied based on its finding that the defendant was excited and had an er ection when he tried to penetrate the victim. The trial court acknowledged that the application of factor (16) was a close issue but stated that it believed that the factor applied becau se the victim could have been severel y injured by the defendant’ s actions. It stated that the fact that the defendant, a grown man, tri ed to put his penis in the si x-year-old vi ctim justified the application of the factor. It concluded that although the defendant did not succeed in penetrating the victi m, the defendant tried to penetrate her and it could have caused great bodily injur

y, such as causing a t

ear or damaging the vi ctim’s internal organs . The trial court found that no mitigating factors applied.

Regarding consecutiv

e sentencing, the trial c ourt stated: I have no problem making them c onsecut ive. Th is man has no business ever b ein g out where any chi ld is in eye-shot of him. Where daughter

wants it, that’s unbelievable to this Court that anybody could have th ose feelings. To think a six year old girl could ask somebody to do this toher and try to put all the blame over on that little ch ild. There’s no remorse her e. The onlyremorse that I get out of this i s the r emorse of being caught. I just get the feeling and watching him te stify at the end, that if daughter asked him to do it again, in his mi nd, if he dreamed that up laying in bed one night , if he had a little daughter, little neighbor, or w hatever child mi ght be around, that little child wo uld have some problems wi th this man. The trial court stated that s ociety needed to be protected fr om the defendant.

A. ENHANCEMENT A ND MITIGATING FACTORS The defendant concedes that the trial co urt appropriately appli ed factor (15), abuse of a position of priv ate trust. See T.C.A. § 40-35-114(15). We agree that the factor applies in this ca se because the defendant is the vi ctim’s father charged w ith her care and control. See Hayes , 899 S.W.2d at 187.40 The defendant contends that factor (2) shoul d not have been applied because the record does not contai n any proof that anyone other than the defendant was present in the room w hen the offenses took place. The state arg ues that the trial court properly consi dered the factor because the defendant and Mr s. Leath permitted the victim to watch them have sex. It contends that the factor is supported by proof that Mrs. Leath was present in the house when some of the offenses occur red and that the victim told Mrs. Leath about the defendant’s conduct. However, Mrs. Leath’s mere presence in the house and notificat ion of the offenses after-the-fact do not justi fy the application of factor (2). The v ictim testified that Mrs. Leath was either in the k itchen, at work, or in bed when these offenses occurred. Moreover, contrary to the trial court’s findings, the record does not contain any evidence that the victim was in the defendant’s bed when the defendant and Mrs . Leath were having sex. The record does not support the trial court ’s determination that the defendant w as a leader in the commission of the offenses of rape of a child and ag gravated sexual batt ery. Therefore, the trial court shoul d not have applied factor (2)

.

Relative to factor (7),the defendant argues that there is nothing in the record to show that the defendant committed the offenses to gratify hi s desire for pleasure or excitement. See T.C.A. § 40-35-114(7). Initially, we note that a necessary element of aggravated sex ual battery is sexu al contact which is de fined as the intentional touching of an inti mate part of the clothing over such part “for purposes of sexual arousal or gr

atification.” T.C.A. § 39-13- 501(6); see State v. Kissinger , 922 S.W.2d 482, 489-90 (Tenn. 1996); Hayes , 899 S.W.2d at 185. Because a factor cannot be applied if it is als o an essential element of the offense as char ged in the indictment, T.C.A. § 40-35-114, fact or (7) is inapplicabl e to the aggravated sex ual battery convictions.41 However, factor (7)

is not an essential element of ag gravated rape and may be considered as an appropr iate enhancement factor. State v. Ada ms , 864 S.W.2d 31, 34-35 (Tenn. 1993). In this case, the t rial court ruled that factor (7) applied because the defendant was excited as evidenced by his having an erection. However, the record does not contain any evidence that the defendant had an erection other than the victim’s testimony

that it hurt when the defendant tr ied to stick his penis i nside her vagina. Moreover, even if the evidence showed that the defendant had an erection , it would not, alone, justify a determination that factor (7) applied. See Kissinger , 922 S.W.2d at 490-91. In Kissinger , our supreme court held that the fact that the defendant experienced orgasm is insufficient, in and of itself, to est ablish that the defendant committed rape to gratify hi s desire for pleasure or ex citement. Id . at 490-91. It recognized the difficulties in establishing factor (7):

Enhancement factor (7), unlike most of the othe r sentencing factors, calls into ques tion a defendant’s reasons for co mmitting a crime. Human motiv ation is a tangled web , always complex and

multifaceted . To pr ove defendant’s motives will always be a difficult t ask. But the legislatur

e, in its wisdom, has placed that obligation on the state when the state seeks an enhanced sentence. Id . The court ruled that the fact of orgasm must be viewed along with other circumstances in the case. Id . at 491.

However, unlike Kissinger , the circumstances in thi s case render factor (7) applicable. Despite the defendant’s denial tha t he committed the offenses to gratify his own desire for pleasure or excitement and his claim that he acted as he did only because the victim requeste d, the evid ence sup ports the applicat ion of f actor (7) b y a preponderance of the evidence. See State v. Carter , 908 S.W.2d 410, 413 (Tenn. Crim. App. 1995) (preponderan ce of the evidence standard appli es to factual determinations necessary for enhancement factor). There wer e several instances of sexual conduct by the defendant with the victim occ urring on different occasions . The defendant penetr

ated the vi ctim by ins

erting his

penis in the

victim’s vagina. The victim42

performed fellatio on the defendant on more than on e occasion. The defendant licked the victim’s vag ina and allowed the vi ctim to play with hi s penis. Moreover, the defendant talked to the victim while he was having sex with Mrs. Leath, and he took a photograph of the victim w ho was not wearing

any clothes and posing in a similar position as a picture taken by the defendant of Mrs. Lea th. Furthermore, the jury concluded beyond a reasonable d oubt that the defendant’s intentional t ouching was for the purpose of sexual arousal or gratification to conv ict the defendant of two counts of aggravated sexual battery. Under these circumstances, we hold that the record supports the application of factor (7) in sentencing the de fendant for the rape of a child convictions.
Relative to factor (16) , the defendant asserts that the rec ord does not support the application of the factor . We agree. Although the partial penetr ation and the attempted penetrations of the six -year-old victi m by the defendant, a grown man, could have created the potenti al for bodily injury , the record does not contain an y evidence to suggest that the potential was gr eat. See Kissinger , 922 S.W.2d at 488. Therefore, the trial court err oneously applied factor (16)

.
With respect to mitigation, the defendant does not specifically detail any mitigating factors that the trial court should hav e considered. Although the de fendant mentioned briefly at the sentencing hearing that he had no pr ior criminal record, he argued it relative to consecutive sentencing . In any event, we believe that the defendant’s lack of a prior cri minal record should be consi dered relative to the le ngth of the sentences imposed. See T.C.A. § 40-35-114(13); State v. Bingham , 910 S.W.2d 448, 453 (Tenn. Crim. App. 1995). Also, the def endant’s cooperation with the police should be considered. See T.C.A. § 40-35-11 3(10). Th e defen dant gave t wo statements to the police and sig ned two permission to sear ch forms. Sheriff Mercer stated that the defendant went with them each time they searched the defendant’s43

home and helped them locate items. How ever, although these factor s should be conside red, we do n ot believe that the y are entit led to sign ificant weight in th e context of this case.
Although the presumption of correctness that accom panies the trial court’s determinations has fallen because the trial court did not pr operly consider all of the relevant sentencing pr

inciples, see Ashby , 823 S.W.2d at 169, we affirm the defendant’s sentences for each convi ction of aggravated rape and aggravated sex

ual battery. Even though the trial court inappropriately applied factors (2) and (16) to all convictions and factor (7) to the aggravated sex

ual battery convict ions and it failed to consider the applicable miti gating factors, the proof suppor ts a twenty-year

sentence for each rape of a child convic tion and a ten-year sentence for each aggravated sex ual battery conviction.Contrary to the defendant’s argument, he is not entitled to a reduction in sentence merely because we conclude on appeal that th e trial court incorrectly applied sentencing and mitigating factors. Hayes , 899 S.W.2d at 186-87.

In Hayes , our court stated that:
even if we determine

that fewer factors should appl y than used bythe t ria l court, this does not mean that the length of the sentence is automatically reduc ed. That is, if the same degree of culpability and negat ive circumstan ces relate to the remaining applicabl e factors, the original enhan cement may still be appropriate. Id . Such is the case here. The defendant was charged with the care and control of the victim, yet he abused that position of trust even though he realized that his conduct could affect the victim for the r est of her life. Not only di d he abuse the victim’s tr ust but he also refused to accept responsi bility for his own conduct. Instead, he placed the blame on his six-yea r-old daughter, claimi ng that she was the one w ho instigated the sexual occurrences and asserting that he received no sexual pleasure from them. He raised the victim in s uch an abnormal environment that the victim view

ed having sex with her father as not only acceptable but also enjoyab le. We believe that the44

defendant’s culpability in relation to the remaining applicable factors justifiesthe midrange sentences imposed by the trial court.

B. CONSECUTIVE SENTENCING Next, the defendant contends that the trial court erroneousl y imposed consecutive sentences. H e argues that the trial c ourt failed to state its gr ounds for consecutive sentencing. Although we agree that the trial court should have been more explicit with i

ts findings, the record i ndicates that the trial cour t relied upon T.C.A. § 40- 35-115(b)(5) in imposing consecutive sentences. A t the sentencing hearing,the state relied upon (b)(5), and defense counsel limited its arg ument to the factor. Pursuant to T.C.A. § 40-35-115(b)(5), the court may order the defendant’ s sentences to run consecutively if the c

ourt finds by a preponderance o f the evidence that: The defendant is convicted of two (2) o r mor e statutory offenses involving sex

ual abuse ofa minor

with consideration of the aggravating ci rcumstances arising from the relationship between the defendant and victim or victims, the time s pan of the defendant’s undetected sexual a ctivi ty, the nature and scope of t he sexual acts and the extent of the residual, physical and mental damage t o the victim or vi ctims . . . .

In this case, the defendant was convicted of a total of five statutory offenses involving sex

ual abuse of a minor. As discuss ed earlier, aggrav

ating circumstances were pr esent in this case. Althoug h the defendant’s conduct occurred over a short period of time, the nature and scope of th e defendant’s sexual acts were extensive. We believe that the record fully supports the trial court’s decision to impose consecutive sentences.

In consideration of the foregoing and the record as a whole , the defendant's convictions and sentences for rape of a child and agg ravated sexual battery are affirmed.45 ______________________________ Joseph M. Tipton, Judge
CONCUR:
John H. Peay, Jud ge

David H. Wel les, Judge