IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs April 5, 2005

STATE OF TENNESSEE v. ROLAND R. SMITH

Direct Appeal from the Criminal Court for Davidson County

No. 2002-A-600 Steve Dozier, Judge

No. M2004-01457-CCA-R3-CD - Filed June 29, 2005

The Defendant, Roland R. Smith, was convicted by a jury of nine counts of statutory rape and three

counts of especially aggravated sexual exploitation of a minor. The trial court sentenced the

Defendant to two years on each of the statutory rape convictions and eleven years on each of the

sexual exploitation convictions. The sentences were ordered to be served in such fashion as to result

in an effective term of seventeen years in the Department of Correction. In this direct appeal, the

Defendant raises the following issues: 1) whether the evidence is sufficient to support certain of his

convictions of statutory rape; 2) whether certain of the Defendant’s convictions must be reversed

under the doctrine of election of offenses; 3) whether certain of the Defendant’s convictions violate

principles of double jeopardy; 4) whether the trial court erred in refusing to sever some of the

offenses; and 5) whether the Defendant’s sentence is excessive. We reverse and remand for retrial

the Defendant’s convictions of statutory rape arising out of Counts Four, Five, Eight and Nine. We

reverse and dismiss the Defendant’s conviction of statutory rape arising out of Count Six. The

Defendant’s effective sentence is thereby modified to fifteen years. In all other respects, we affirm

the judgments of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed in Part;

Reversed in Part; Remanded

DAVID H. WELLES,J., delivered the opinion of the court, in which JAMES CURWOOD WITT,JR., and

J. C. MCLIN, JJ., joined.

Jeffrey A. DeVasher (on appeal) and J. Michael Engle (at trial), Nashville, Tennessee, for the

appellant, Roland Richard Smith.

Paul G. Summers, Attorney General and Reporter; Richard H. Dunavant, Assistant Attorney

General; Victor S. Johnson, District Attorney General; and Brian Holmgren, Assistant District

Attorney General, for the appellee, State of Tennessee.
It is the policy of this Court to refer to the victims of sex crimes by their initials. 1

T.H. is also the named victim in two counts of statutory rape alleged against the Defendant; hence, we refer

2

to her by her initials.

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OPINION

FACTS

T.M., the victim of most of the instant crimes, testified that she was born on September 18, 1

1985. She met the Defendant while she was in the ninth grade; the Defendant was twenty-seven

years old at the time. T.M. had been living with her father but ran away to live with the Defendant.

The two had been living together approximately two years when the Defendant was arrested in April

2002. At that time, they were living in a house on Carriage Hill in Davidson County, where they had

been residing about a year. T.M.’s mother and two younger sisters lived in the house with them for

a couple of months around Christmas of 2001. T.M. and the Defendant married on February 14,

2002, after the police began investigating the Defendant’s sexual relationship with her.

T.M. testified that she was fifteen years old the first time she had sex with the Defendant.

She could not recall where this initial episode occurred. T.M. also stated that, over the course of the

period during which she lived with the Defendant, they had sex hundreds of times. She could not

remember each and every time but stated that their relations involved both intercourse and oral sex.

The Defendant also penetrated T.M. on more than one occasion with a “dildo.”

T.M. recalled having intercourse with the Defendant at a Marriott hotel in front of a person

named Josh Hildrith “[o]nce or twice.” Other witnesses to sexual activity between T.M. and the

Defendant included her sister Natasha Meadows, her cousin Lacrisha Taylor, and T.M.’s friends

T.H. and Randee Goodwin. T.M. explained that, on one occasion, T.H. was visiting the house on 2

Carriage Drive when the Defendant took both of them into the bedroom. There, he “forced” T.M.

and T.H. to have “oral sex with each other.” The Defendant watched this activity and also had

intercourse with both girls. T.M. testified that she witnessed the Defendant having sex with T.H.

and T.H. witnessed the Defendant having sex with T.M. T.H. also witnessed T.M. performing oral

sex on the Defendant. T.M. stated that this group scenario repeated itself two or three times. 

T.M. testified that Randee Goodwin saw her giving oral sex to the Defendant on one occasion

at Carriage Drive. On another occasion, the Defendant forced T.M. to give him oral sex while her

sister Natasha was watching. The Defendant threatened to shock T.M. with a Taser gun if she did

not do as he requested. This incident also occurred on Carriage Drive. Lacrisha Taylor also

witnessed on one occasion T.M. giving oral sex to the Defendant on Carriage Drive. 

T.M. acknowledged that, while she and the Defendant lived on Carriage Drive, the Defendant

took photographs of her while she was unclothed. One of these photographs was admitted at trial

as Exhibit 4. The Defendant also filmed a video of T.M. and T.H. while they were in the shower

together, both undressed. The Defendant also filmed a video of himself having sex with T.M. T.M.
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testified that she recognized both of these videotapes. Both were admitted at trial and played for the

jury. 

During cross-examination, T.M. maintained that she and the Defendant had fallen in love

with each other and that they shared a loving relationship. Their wedding took place at a chapel in

Nashville and T.M.’s mother and three sisters attended. T.M. wanted the wedding to take place. 

 

On redirect, T.M. acknowledged that she became pregnant twice during her relationship with

the Defendant, miscarrying both times. 

T.H. testified that she was born on September 28, 1984, and had known the Defendant eight

months prior to her being interviewed by the police about him in January 2002. She lived with the

Defendant and T.M. for two months at their house on Carriage Drive. She was seventeen years old

at that time. T.H. stated that, while she lived there, she and the Defendant had sexual intercourse

four times. She also witnessed the Defendant having intercourse with T.M. She acknowledged that

the Defendant filmed her and T.M. together in the shower while they were both unclothed. She also

acknowledged participating in sexual activity with T.M. but claimed that she and T.M. did so by

mutual choice. 

Randee Goodwin, eighteen at the time of her testimony, had been friends with T.M. and the

Defendant for several years. She spent two nights with them while they were living in an apartment

in Bellevue. Ms. Goodwin stated that, on one occasion, she was in the bedroom with the Defendant

and T.M. watching a movie when she saw T.M. performing oral sex on the Defendant. Later on that

same night she saw the Defendant sexually penetrating T.M. with a “dildo.” Ms. Goodwin was

sixteen at the time. 

Natasha Meadows, also eighteen at the time of the trial, testified that she witnessed sexual

activity between T.M. and the Defendant on “maybe three” occasions. The first time was when she

saw T.M. giving oral sex to the Defendant while they were residing in Hermitage. She witnessed

this same activity twice more at the Carriage Drive residence. 

Kelley Allen, one of T.M.’s younger sisters, was thirteen at the time ofthe trial. She testified

that, when she was eleven or twelve, she lived with her mother for a “few months” at the house that

T.M. shared with the Defendant. Her sister Christie also lived there with them. While they were

there, T.M. was pregnant but never had the baby. They moved out when the police began an

investigation of the Defendant. 

Detective Stanley Leo Mitchell testified that he operates the computer forensic lab for the

Metro Police Department. He examined a computer recovered from the Defendant’s residence.

From this computer he recovered the photograph that was admitted as Exhibit Four. This

photograph, which is included in the record before us, depicts T.M. lying on her back while

undressed with her legs raised and apart, revealing her genital region. 
The victims’ names are spelled out in the State’s election of offenses.

3

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Detective Ken Potter testified that he executed a search warrant at the Defendant’s residence

at Carriage Drive on January 9, 2002. During that search he seized a computer as well as a digital

camera. He also seized a video camera and a number of eight millimeter video cassettes. The police

department transferred the material on these cassettes onto VHS videotapes. Portions oftwo of these

videotapes were played for the jury; the tapes are also in the record before us. Det. Potter identified

the two female participants in one of the tapes as T.M. and T.H. Det. Potter identified the voice and

the person in the other videotape as T.M.

Following Det. Potter’s testimony, the State rested its case. The prosecutor then read to the

jury the State’s election of offenses, as follows:

In the Criminal Court for Davidson County, Tennessee, Division One, State

of Tennessee versus Roland Smith, case number 2002-A-600, election of offenses:

Count One of the indictment alleges an act of statutory rape involving T.M.,3

date of birth 9-18-85, and refers to the following conduct:

The defendant used a dildo to penetrate the vagina of T.M. at the residence

on Carriage Drive. Randee Goodwin witnessed this event.

Count Two of the indictment alleges an act of statutory rape involving T.M.,

date of birth 9-18-85, and refers to the following conduct:

T.M. performed an act of fellatio on the defendant at the residence on

Carriage Drive. Randee Goodwin witnessed this incident.

Count Three of the indictment alleges an act of statutory rape involving T.M.,

date of birth 9-18-85, and refers to the following conduct:

The defendan[t] had sexual intercourse with T.M. in an apartment in

Nashville. This incident was video taped by the defendant.

Count Four of the indictment alleges an act of statutory rape involving T.M.,

date of birth 9-18-85, and refers to the following conduct:

The defendant engaged in sexual intercourse with T.M. at the residence on

Carriage Drive. T.M. became pregnant as a result of this incident.

Count Five of the indictment alleges an act of statutory rape involving T.M.,

date of birth 9-18-85, and refers to the following conduct:

T.M. performed an act of fellatio on the defendant at the residence on

Carriage Drive. Natasha Meadows witnessed this incident.

Count Six of the indictment alleges an act of statutory rape involving T.M.,

date of birth, 9-18-85, and refers to the following conduct:

The defendant and T.M. engaged in sexual intercourse at the residence on

Carriage Drive. T.H. was present and witnessed the act of intercourse.

Count Seven of the indictment alleges an act of statutory rape involving T.M., date

of birth, 9-18-85, and refers to the following conduct:

The defendant and T.M. engaged in sexual intercourse at the residence on

Carriage Drive. T.H. was present and witnessed the act of intercourse.
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Count Eight of the indictment alleges an act of statutory rape involving T.H.,

date of birth, 9-28-84, and refers to the following conduct:

The defendant and T.H. engaged in sexual intercourse at the residence on

Carriage Drive. T.M. was present and witnessed the act of intercourse.

Count Nine of the indictment alleges . . . an act of statutory rape involving

T.H., date of birth, 9-28-84, and refers to the following conduct:

The defendant and T.H. engaged in sexual intercourse at the residence on

Carriage Drive. T.M. was present and witnessed the act of intercourse.

Count Ten of the indictment alleges the act of especially aggravated sexual

exploitation of a minor and refers to the following conduct:

The defendant photographed T.M. naked on a bed with her legs spread at the

Carriage House residence.

Count Eleven of the indictment alleges an act of especially aggravated sexual

exploitation of a minor . . . refers to the following conduct:

The defendant video taped T.M. and T.H. in a shower at the Carriage Drive

residence.

Count Twelve of the indictment alleges an act of especially aggravated sexual

exploitation of a minor and refers to the following conduct:

The defendant video taped he and T.M. engaging in sexual intercourse and

T.M. performing an act of fellatio on the defendant.

The Defendant recalled T.M. to the stand and established that she was not afraid of the

Defendant with respect to the sexual matters at issue. 

After considering the above proof, the jury convicted the Defendant as charged.

ANALYSIS

I. Sufficiency of the Evidence

In his first issue the Defendant contends that the evidence is not sufficient to establish that

the Defendant committed the statutory rapes charged in Counts One, Two, Four, Five, Six and Seven

because the State failed to establish that he and T.M. were not married when those acts took place.

Statutory rape is defined as the “sexual penetration of a victim by the defendant or of the defendant

by the victim when the victim is at least thirteen (13) but less than eighteen (18) years of age and the

defendant is at least four (4) years older than the victim.” Tenn. Code Ann. § 39-13-506(a).

However, conduct which would otherwise be statutory rape is not criminal “if the victim is the legal

spouse of the perpetrator.” Id. § 39-13-507(a). The Defendant contends that the proof at trial

established that the Defendant and T.M. were married to one another for approximately six weeks

during the time they resided at Carriage Drive, and that the State failed to prove that the acts alleged

in the referenced counts occurred prior to that time. Accordingly, the Defendant argues, the State

failed to adduce sufficient proof of the criminal nature of the sexual conduct for which the Defendant

was charged with statutory rape.
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Tennessee Rule of Appellate Procedure 13(e) prescribes that “[f]indings of guilt in criminal

actions whether by the trial court or jury shall be set aside if the evidence is insufficient to support

the findings by the trier of fact of guilt beyond a reasonable doubt.” A convicted criminal defendant

who challenges the sufficiency of the evidence on appeal bears the burden of demonstrating why the

evidence is insufficient to support the verdict, because a verdict of guilt destroys the presumption

of innocence and imposes a presumption of guilt. See State v. Evans, 108 S.W.3d 231, 237 (Tenn.

2003); State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000); State v. Tuggle, 639 S.W.2d 913,

914 (Tenn. 1982). This Court must reject a convicted criminal defendant’s challenge to the

sufficiency of the evidence if, after considering the evidence in a light most favorable to the

prosecution, we determine that any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); State v.

Hall, 8 S.W.3d 593, 599 (Tenn. 1999).

On appeal, the State is entitled to the strongest legitimate view of the evidence and all

reasonable and legitimate inferences which may be drawn therefrom. See Carruthers, 35 S.W.3d at

558; Hall, 8 S.W.3d at 599. A guilty verdict by the trier of fact accredits the testimony of the State’s

witnesses and resolves all conflicts in the evidence in favor of the prosecution’s theory. See State

v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). Questions about the credibility of witnesses, the

weight and value of the evidence, as well as all factual issues raised by the evidence are resolved by

the trier of fact, and this Court will not re-weigh or re-evaluate the evidence. See Evans, 108 S.W.3d

at 236; Bland, 958 S.W.2d at 659. Nor will this Court substitute its own inferences drawn from

circumstantial evidence for those drawn by the trier of fact. See Evans, 108 S.W.3d at 236-37;

Carruthers, 35 S.W.3d at 557.

As pointed out by the State in its brief, T.M. testified about the events charged in Counts

One, Two, Five, Six and Seven, and the prosecutor then asked her if she had gotten married “after

the police investigation into all these things?” T.M. responded in the affirmative. Obviously, then,

“these things” had all occurred prior to the marriage. Count Four alleged a statutory rape based on

an act of intercourse that resulted in T.M. becoming pregnant by the Defendant. T.M. testified that

she told the Defendant upon her becoming pregnant both times. When the prosecutor asked if the

Defendant suggested marriage on either occasion, T.M. testified “he may have once.” However, she

further testified that the Defendant never took any action toward getting married at that time. This

is sufficient proof from which the jury may have drawn the inference that the Defendant and T.M.

were not married at the time of the conduct referred to in Count Four. 

The proof was therefore sufficient to support the challenged counts of statutory rape. This

issue is without merit.
These counts allege three incidents of statutory rape occurring when a) the Defendant videotaped himself 4

having sex with T.M., and b) T.H. observed the Defendant having sex with T.M. on two occasions. 

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II. Election of Offenses

The Defendant next challenges the efficacy of the State’s election of offenses with respect

to all counts of statutory rape except Counts Three, Six and Seven. The State responds both that 4

this issue has been waived, and that it is without merit.

The doctrine of election of offenses is implicated when the State charges a defendant with

one or more sexual offenses and then adduces at trial proof of more sexual offenses than have been

charged. Under those circumstances our supreme court has long and consistently held that the State

must select from among the various offenses proved, those particular acts upon which it seeks

convictions. See State v. Johnson, 53 S.W.3d 628, 630 (Tenn. 2001); State v. Kendrick, 38 S.W.3d

566, 568 (Tenn. 2001); State v. Brown, 992 S.W.2d 389, 391 (Tenn. 1999); State v. Walton, 958

S.W.2d 724, 727 (Tenn. 1997); Tidwell v. State, 922 S.W.2d 497, 500-01 (Tenn. 1996); State v.

Shelton, 851 S.W.2d 134, 136-37 (Tenn. 1993); Burlison v. State, 501 S.W.2d 801, 804 (Tenn.

1973). The Burlison decision cites three reasons for the election requirement:

First, to enable the defendant to prepare for and make his defense to the specific

charge; second, to protect him from double jeopardy by individualization of the issue,

and third, so that the jury’s verdict may not be a matter of choice between offenses,

some jurors convicting on one offense and others, another.

501 S.W.2d at 803. It is the third of these reasons that addresses the most serious concern: “the

well-established right under our state constitution to a unanimous jury verdict before a criminal

conviction is imposed.” Shelton, 851 S.W.2d at 137. This right “requires the trial court to take

precautions to ensure that the jury deliberates over the particular charged offense, instead of creating

a ‘patchwork verdict’ based on different offenses in evidence.” Id. (emphasis added).

Our supreme court has “stressed that the election requirement is a responsibility of the trial

court and the prosecution and, therefore, does not depend on a specific request by the defendant.”

Kendrick, 38 S.W.3d at 569. More emphatically, our high court in Burlison held that

it [is] the duty of the trial judge to require the State, at the close of its proof-in-chief,

to elect the particular offense of carnal knowledge upon which it would rely for

conviction, and to properly instruct the jury so that the verdict of every juror would

be united on the one offense.

501 S.W.2d at 804. The defendant’s right to a unanimous jury verdict on each and every count is

“fundamental, immediately touching the constitutional rights of an accused.” Id. As such, any error

committed by the trial court in failing to require the State to elect the offenses on which it chooses

to seek conviction, or to properly instruct the jury thereon, is reversible unless determined to be

harmless beyond a reasonable doubt. See Shelton at 138.
We note that, in addressing the election issues in these cases, the courts did not deem it necessary to undertake 5

the analysis set forth in State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994), in order to determine

whether the State’s failure to properly elect constituted “plain error.” We follow their lead.

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We will first address the State’s claim of waiver. The State is correct that the Defendant’s

motion for new trial does not raise an issue regarding the State’s election of offenses at trial.

However, as set forth above and acknowledged by the State in its brief, the doctrine of election of

offenses touches on a criminal defendant’s fundamental constitutional rights and is therefore subject

to plain error review, whether or not raised in a motion for new trial. See State v. Kendrick, 38

S.W.3d 566, 567 (Tenn. 2001) (reversing conviction under doctrine of election of offenses as plain

error although not addressed in the direct appeal); State v. Walton, 958 S.W.2d 724, 726-27 (Tenn.

1997) (reversing convictions as plain error for State’s failure to elect offenses, although not raised

by the parties); State v. Clabo, 905 S.W.2d 197, 204 (Tenn. Crim. App. 1995) (noting that the State’s

failure to elect offenses “is plain error”). Accordingly, we will address on the merits the 5

Defendant’s issues regarding the State’s election of offenses.

With respect to Counts One and Two, the Defendant contends that the State’s description of

the elected offenses “did not sufficiently correspond to [the] proof” and those convictions must

therefore be reversed. As to these counts, the State elected those offenses to consist of the following

conduct: “the defendant used a dildo to penetrate the vagina of T.M. at the residence on Carriage

Drive [while] Randee Goodwin witnessed this event” and “T.M. performed an act of fellatio on the

defendant at the residence on Carriage Drive [while] Randee Goodwin witnessed this incident.” The

Defendant correctly points out that, while Ms. Goodwin testified that she witnessed the Defendant

using a dildo on T.M. and also saw T.M. performing oral sex on the Defendant, she stated that she

witnessed these events at an apartment in Bellevue. The State’s election specifies that these offenses

occurred instead at the house on Carriage Drive. Hence, the Defendant asserts, the State’s election

 of offenses as to Counts One and Two does not sufficiently correspond to the proof adduced at trial,

requiring the reversal of his convictions on those two counts.

We acknowledge the discrepancy pointed out by the Defendant. We disagree, however, that

it is of such magnitude as to require reversal. Ms. Goodwin testified to witnessing two acts of sexual

conduct between T.M. and the Defendant. Both occurred on the same evening and in the same

location: the Defendant’s bedroom. One of the acts witnessed by Ms. Goodwin involved the

Defendant penetrating T.M. with a dildo. The other act consisted of T.M. performing fellatio on

the Defendant. T.M. also testified that she recalled once performing fellatio on the Defendant in

front of Ms. Goodwin, although she stated that this incident occurred at the address on Carriage

Drive. T.M. did not recall Ms. Goodwin’s presence while the Defendant penetrated her with a dildo.

The Defendant relies on State v. Alfred Lee Middleton, No. W1996-00022-CCA-R3-CD,

1999 WL 1531759, at *8-9 (Tenn. Crim. App., Jackson, Dec. 17, 1999), for the proposition that an
The Defendant also relies upon State v. Brown, 992 S.W.2d 389 (Tenn. 1999). That case is inapposite. There,

6

the defendant was indicted on a single count of rape of a child. The victim testified at trial about five instances of

penetration occurring on different days. The State “elected” the offense as occurring “between Easter, April 11, 1993,

and June 30, 1993.” Id. at 391. Our supreme court held that “[t]his time-frame limitation was not an election and failed

to ensure that the jury would focus on a single offense.” Id. at 392. In the instant case, the State elected two specific

instances of conduct, both occurring on a single night.

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election that does not correspond to the proof at trial yet results in a conviction, must be reversed.6

We find Middleton distinguishable from this case. In Middleton, the jury was instructed to consider

an alleged rape “wherein the defendant allegedly forced [the victim] to perform fellatio after

receiving a whipping.” Id. at *8. However, the proof at trial was that the victim performed an act

of fellatio in order to avoid a whipping, and on another occasion, refused to fellate the defendant

after having already received a whipping. The jury was sufficiently confused that it sent a note to

the trial court during deliberations seeking clarification on this very point. The jury was simply told

to reread the jury instructions, and eventually convicted on the elected charge.

In the present case, there was proof of only two acts of sexual conduct between the Defendant

and T.M. that were witnessed by Ms. Goodwin. Both T.M. and Ms. Goodwin testified about these

acts. The address at which these acts occurred was, in the context of this case, relatively

unimportant. The differences in the testimony about the Defendant’s address at the time did not

create the danger of a “patchwork verdict” in which some of the jurors were convicting on the basis

of one instance of conduct, and other jurors convicting on the basis of a different instance of conduct.

Ms. Goodwin testified that she watched while the Defendant penetrated T.M. on one occasion with

a dildo. Ms. Goodwin and T.M. both testified that Ms. Goodwin watched on one occasion while

T.M. performed oral sex on the Defendant. Both of these incidents occurred on the same night. The

State elected one offense for each of these instances. The jury convicted on each offense. Each

elected offense was sufficiently distinct as to render unimportant the address at which these incidents

occurred. Unlike the scenario in Middleton, the jury here was not confronted with an offense that

appeared to combine elements of proof from two separate incidents and which corresponded to no

single described incident. Here, the jury had proof that matched the elected offenses in all respects

but the address, a detail which, under the circumstances of this case, is trivial. Accordingly, we find

no merit to the Defendant’s claim that the State’s election as to these offenses was so flawed as to

require reversal.

The Defendant also complains about the State’s election on Count Four, which the State

elected to consist of the Defendant’s sexual intercourse with T.M. occurring at the Carriage Drive

residence and resulting in her pregnancy. We agree with the Defendant that the State’s election on

this particular count is flawed. T.M. testified that she twice became pregnant by the Defendant. She

did not describe the circumstances surrounding either pregnancy other than to explain that each had

terminated in a miscarriage. The State gave the jury no indication in its election as to which

pregnancy was the basis for the charge. Obviously, then, some of the jurors might have convicted

the Defendant for the act of intercourse that resulted in the first pregnancy, while other jurors may

have convicted the Defendant for the subsequent act of intercourse. While we agree with the State

that the Defendant could have been prosecuted for both acts, the State chose to prosecute only one.
We also note that the acts of intercourse elected by the State to support Count Six and/or Count Seven could 7

be the same act of intercourse the State elected to support Count Four.

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Unfortunately, the State did not specify with sufficient detail which act it was prosecuting: and the

jury had two from which to choose. This is the very evil against which an election of offenses is 7

designed to protect. See Shelton, 851 S.W.2d at 138 (“the purpose of election is to ensure that each

juror is considering the same occurrence”). The protection failed in this instance. Accordingly, we

have no choice but to reverse the Defendant’s conviction on Count Four and remand that count for

a new trial. See Walton, 958 S.W.2d at 728 (defendant’s convictions reversed and remanded for new

trial where there existed in the record “no means . . . by which [to] be assured that each juror relied

upon the same evidence to convict the defendant”). 

The Defendant attacks his conviction of Count Five on similar grounds. In that count, the

State described the relevant conduct as an act of fellatio performed by T.M. on the Defendant at the

Carriage Drive residence and witnessed by Natasha Meadows. T.M. testified about a single incident

of oral sex observed by Natasha, and described it as being precipitated by the Defendant’s threat to

shock her with a Taser gun if she did not cooperate. T.M. stated that this incident occurred on

Carriage Drive. Natasha testified that she witnessed T.M. giving the Defendant oral sex on at least

two occasions at the Carriage Drive address. Both occasions involved the Taser gun. Thus, the jury

again had two incidents from which to choose in deciding whether to convict the Defendant of Count

Five. As in Count Four, this scenario permitted a “patchwork verdict” as to this count, and the

Defendant’s conviction of Count Five must therefore be reversed and the charge remanded for a new

trial.

The same problem arises with respect to Counts Eight and Nine, each of which the State

described as referring to an act of sexual intercourse between the Defendant and T.H. and witnessed

by T.M. T.H. testified that she had intercourse with the Defendant on four occasions and that T.M.

was present. T.M. testified that she saw the Defendant having intercourse with T.H. “[t]wo or three”

times. Thus, the jury had more than two episodes of intercourse between the Defendant and T.H.

from which to choose in deciding whether to convict the Defendant on Counts Eight and Nine. The

Defendant’s convictions on these counts must therefore be reversed and the charges remanded for

a new trial.

III. Double Jeopardy

A. Counts Three and Twelve

The Defendant was convicted on Count Three of the statutory rape of T.M. as revealed by

the videotape he made of the episode. The Defendant was convicted on Count Twelve of especially

aggravated sexual exploitation of a minor based on the fact that he made the videotape relied upon

by the State in Count Three. The Defendant now contends that his dual convictions for these

offenses violate his constitutional protections against double jeopardy. See U. S. Const. Amend. V;

Tenn. Const. Art. I, § 10. We disagree.
Blockburger v. United States, 284 U.S. 299 (1932). 8

Duchac v. State, 505 S.W.2d 237 (Tenn. 1973). 9

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As our supreme court has explained, 

three fundamental principles underlie double jeopardy: (1) protection against a

second prosecution after an acquittal; (2) protection against a second prosecution

after conviction; and (3) protection against multiple punishments for the same

offense.

State v. Denton, 938 S.W.2d 373, 378 (Tenn. 1996) (footnote omitted); see also Whalen v. United

States, 445 U.S. 684, 688 (1980). It is the third of these protections that the Defendant contends is

being violated. Initially, we note that Tennessee’s constitutional protection against double jeopardy

has been construed to be greater than that offered by the federal Constitution. See Denton at 378-81;

State v. Hayes, 7 S.W.3d 52, 55 (Tenn. Crim. App. 1999).

“The key issue in multiple punishment cases is legislative intent,” and we are to presume

“that the legislature does not ordinarily intend to punish the same offense under two different

statutes.” Denton, 938 S.W.2d at 379. According to the Denton decision, 

resolution of a double jeopardy punishment issue under the Tennessee Constitution

requires the following: (1) a Blockburger analysis of the statutory offenses; (2) an

8

analysis, guided by the principles of Duchac, of the evidence used to prove the 9

offenses; (3) a consideration of whether there were multiple victims or discrete acts;

and (4) a comparison of the purposes of the respective statutes. None of these steps

is determinative; rather the results of each must be weighed and considered in

relation to each other.

938 S.W.2d at 381 (footnotes added).

 We turn now to the Blockburger analysis of the two crimes in question. That analysis looks

to whether each offense requires proof of an additional fact which the other does not. See 284 U.S.

at 304. Differing elements indicate that the two offenses are not the same for double jeopardy

purposes. Statutory rape is defined as the “sexual penetration of a victim by the defendant . . . when

the victim is at least thirteen (13) but less than eighteen (18) years of age and the defendant is at least

four (4) years older than the victim.” Tenn. Code Ann. § 39-13-506(a). The crime of especially

aggravated sexual exploitation of a minor provides that “[i]t is unlawful for a person to knowingly

promote, employ, use, assist, transport or permit a minor to participate in the performance or in the

production of material which includes the minor engaging in: (1) Sexual activity; or (2) Simulated

sexual activity that is patently offensive.” Id. § 39-17-1005(a). Statutory rape requires the element

ofsexual penetration, which the crime ofsexual exploitation of a minor does not. Statutory rape also

requires a minimum age difference between the victim and the defendant, not required by the

exploitation offense. Especially aggravated sexual exploitation of a minor requires the offender to
McKnight sets forth the proposition that willing victims of statutory rape are considered accomplices. See 10

900 S.W.2d at 47-48. Their testimony about the facts constituting the offense must therefore be corroborated. See id.

In this case, T.M. testified that she was a willing participant in at least “most” of the sexual conduct she engaged in with

the Defendant.

We do not imply that T.M. was not also a victim of the Defendant’s sexual exploitation of her. 11

-12-

engage a minor in the performance or production of material depicting sexual activity or simulated

sexual activity; statutory rape does not. Thus, under the Blockburger test, these two offenses are not

the “same” for double jeopardy purposes.

Turning to the second Denton criterion, we acknowledge that the evidence used to prove

these offenses was, indeed, the same. The State relied on T.M.’s testimony and the videotape to

prove both crimes. However, the evidence was used for different purposes. In proving the statutory

rape, the State was required to offer some corroboration of T.M.’s testimony because she is

considered an accomplice to the crime. See State v. McKnight, 900 S.W.2d 36, 48 (Tenn. Crim.

App. 1994). The videotape of the sexual intercourse between the Defendant and T.M. was offered

10

to corroborate her testimony as to that act taking place. With respect to the sexual exploitation

charge, however, the videotape was offered to prove an element of the crime itself: that the

Defendant had produced material depicting a minor engaging in sexual activity. 

Duchac instructs that “‘[o]ne test of identity of offenses is whether the same evidence is

required to prove them. If the same evidence is not required, then the fact that both charges relate

to, and grow out of, one transaction, does not make a single offense where two are defined by the

statutes.’” 505 S.W.2d at 239 (citation omitted) (emphasis added). In this case, the same evidence

was used, but the same evidence was not required. Any form of corroborative evidence would have

been sufficient to support the State’s charge of statutory rape. On the other hand, the videotape was

necessary to the State’s case of especially aggravated sexual exploitation of a minor. The differing

purposes for which the evidence was offered supports, under the principles of Duchac, a finding that

the two offenses are not the same for double jeopardy purposes.

The third factor necessary for us to consider is whether the two offenses involved multiple

victims or discrete acts. The nominal victim of both crimes is T.M. However, the offense of

statutory rape is included in the chapter of our criminal code titled “Offenses Against Person.” The

language defining the crime ofstatutoryrape refersto “the victim,” clearly implying that there is only

one victim of each act of sexual penetration by the defendant. In contrast, the crime of especially

aggravated sexual exploitation of a minor is included in the chapter of our criminal code titled

“Offenses Against Public Health, Safety, Welfare.” That is, this is a crime against society at large.

Indeed, the language of the statute itself does not refer to the minor participant as “the victim.”

Rather, this particular crime is included in Part 10 of the chapter setting forth the crimes against

public health, safety and welfare, which part is aimed at punishing “persons involved in child

pornography.” Tenn. Code Ann. § 39-17-1001, Sentencing Commission Comments. Accordingly,

we find that, under the circumstances of this case, the two crimes involved multiple victims.11
When the especially aggravated sexual exploitation of a minor statute was enacted in 1990, the referenced 12

statute proscribing aggravated rape contained a provision making the rape of a victim under the age of thirteen

“aggravated.” See Tenn. Code Ann. § 39-13-502(a)(4) (1991). In 1992, the rape of a victim under the age of thirteen

became a crime under a separate statute, codified at Tennessee Code Annotated section 39-13-522. The current statute

proscribing aggravated rape no longer contains a provision dealing with victims under the age of thirteen. We surmise

that the legislature simply failed to correct the especially aggravated sexual exploitation of a minor statute to reflect the

new statute concerning rape of a child.

-13-

The two crimes also involved discrete acts. The act supporting the statutory rape charge is

the sexual intercourse that occurred between the Defendant and T.M. The act supporting the

exploitation charge was the Defendant’s videotaping of this act: and the taping of the act would have

supported the conviction even if sexual penetration had been merely simulated. Thus, this third

factor also supports a finding that the two offenses are not the same for double jeopardy purposes.

A comparison of the purposes of the respective statutes also supports a finding of no double

jeopardy violation. As pointed out above, the purpose of the sexual exploitation statute is to punish

those involved in child pornography. The purpose of the crime of statutory rape is to punish persons

old enough to know better from taking sexual advantage of those deemed too young to effectively

consent. The two crimes are aimed at different evils and support separate punishments.

The Defendant points out that the especially aggravated sexual exploitation of a minor statute

provides that “[n]othing in this section shall be construed as limiting prosecution under § 39-13-502,

for aggravated rape or § 39-13-504, for aggravated sexual battery.” Tenn. Code Ann. § 39-17- 12

1005(c). The Defendant argues that this language “reflects a legislative intent to preclude

prosecution for statutory rape” because “had the legislature intended that persons convicted of

especially aggravated sexual exploitation of a minor face additional prosecution for statutory rape

based upon the same factual circumstances, it would have expresslyincluded the offense of statutory

rape in [this sentence].” The Defendant relies upon the rule of statutory construction that the

mention of one subject in a provision implies the exclusion of those subjects that are not mentioned.

See State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). 

While we acknowledge this rule of statutory construction, we conclude that it avails the

Defendant no benefit in this case. While the legislature may have envisioned some aspect of the

especially aggravated sexual exploitation of a minor statute to have threatened simultaneous

prosecution for the rape or sexual battery of a child under the age of thirteen, such that the language

at issue was deemed necessary, we see no similar concern with a simultaneous prosecution for

statutory rape. That is, we see nothing in section 39-17-1005 that can be construed as limiting

prosecution for statutory rape; therefore, a reference to the statutory rape statute in the final sentence

of section 39-17-1005 was unnecessary. Its exclusion is, accordingly, immaterial and does not

evince a legislative intent that the crimes of statutory rape and especially aggravated sexual

exploitation of a minor be considered the “same” for double jeopardy purposes.

The Defendant’s claim that his convictions on Counts Three and Twelve violate his

protections against double jeopardy is without merit.
The State eventually dismissed original counts one through six.

13

-14-

 B. Counts Six and Seven

The Defendant also contends that his convictions on Counts Six and Seven violate double

jeopardy because they constitute multiple punishments for a single offense. The Defendant argues

that the State’s proof supports only one of these convictions and he asks that we reverse and dismiss

one of them, or that we merge the two convictions into a single one. The State argues that the

Defendant has waived this issue by failing to include it in his motion for new trial. Given the

fundamental constitutional right at issue, we choose to address the Defendant’s contention on its

merits. See Tenn. R. Crim. P. 52(b).

Counts Six and Seven each refer to an incident of statutory rape occurring on Carriage Drive

and consisting of the Defendant having sexual intercourse with T.M. while T.H. was present and

watching. T.H. testified that she saw the Defendant and T.M. engaging in intercourse. She did not

testify about witnessing more than one instance of this activity. T.M. also testified that T.H. watched

while she and the Defendant had intercourse, but was not specific about how many times this

occurred. 

The Defendant’s argument is essentially one of sufficiency. We agree with the Defendant

that the State adduced sufficient proof to sustain a single conviction of statutory rape based upon an

incident of sexual intercourse between the Defendant and T.M. that was witnessed by T.H. The

evidence does not support two convictions of statutory rape based upon two distinct such incidents.

Accordingly, we reverse and dismiss the Defendant’s conviction on Count Six. We affirm the

conviction on Count Seven.

IV. Severance

The Defendant next contends that the trial court erred in refusing to sever the statutory rape

offenses naming T.H. as the victim: Counts Eight and Nine. 

The Defendant was originally indicted in an eighteen count True Bill. The first six counts

alleged six individual instances of rape of a child involving another victim. The indictment was

subsequently amended such that these initial six counts were removed; the remaining twelve counts 13

were renumbered One through Twelve. The first seven of these remaining twelve counts each

alleged an instance of statutory rape involving T.M. Renumbered Counts Eight and Nine each

alleged an instance of statutory rape involving T.H. Renumbered Counts Ten, Eleven and Twelve

each alleged an instance of especially aggravated sexual exploitation of a minor.

After the indictment was amended, the Defendant filed a motion pursuant to Tennessee Rule

of Criminal Procedure 14, seeking a severance of the especially aggravated exploitation charges from

the remaining ones; of the remaining charges, the Defendant requested to sever six of the statutory

rape charges involving T.M. from one of the statutory rape charges involving T.H. The Defendant

did not move to sever the two remaining statutory rape charges (Count Seven involving T.M. and

Count Nine involving T.H.) based upon the State’s representation that those counts involved
The Defendant contends on appeal that both of the statutory rape counts involving T.H. should have been 14

severed and that “defense counsel’s pretrial reliance on the State’s []representation concerning the evidence in count nine

should not preclude him from arguing on appeal that both counts involving T.H. as the named victim should have been

severed.” As eventually elected after the close of the State’s proof at trial, Count Nine did not include any allegation

of a “threesome.” The State does not argue waiver in its brief. Accordingly, we will address on the merits the

Defendant’s concerns about both Counts Eight and Nine.

-15-

simultaneous contact with both women (a “threesome”). The Defendant later amended his motion

at the hearing such that he sought to sever only one of the statutory rape counts involving T.H. After

an evidentiary hearing, the trial court denied the Defendant’s motion.14

 We review a trial court’s decision on a motion to sever under an abuse of discretion

standard. See Spicer v. State, 12 S.W.3d 438, 442 (Tenn. 2000). That is, we will not reverse the

trial court’s decision unless it applied an incorrect legal standard, or reached a conclusion which is

against logic or reasoning and caused an injustice to the complaining party. Id. at 443. 

Our Rules of Criminal Procedure provide that, where two or more offenses have been

permissively joined, “the defendant shall have a right to a severance of the offenses unless the

offenses are part of a common scheme or plan and the evidence of one would be admissible upon

the trial of the others.” Tenn. R. Crim. P. 14(b)(1). As explained by our supreme court, 

at its most basic level, a question of severance under Rule 14(b)(1) is really a

question of evidentiary relevance. When the other offenses in a common scheme or

plan are not relevant to a material issue at trial, then a severance should be granted

in order to ensure a fair trial by insulating the defendant from evidence of other

unrelated offenses. Otherwise, admission ofthe other offenses invites the trier of fact

to improperly infer that the defendant has a propensity to commit crimes.

State v. Moore, 6 S.W.3d 235, 239 (Tenn. 1999) (citation omitted). 

Turning to the trial court’s analysis of this case, we first note that offenses may be part of a

common scheme or plan in any of three circumstances: (1) the offenses reveal a distinctive design

or are so similar as to constitute “signature” crimes; (2) the offenses are part of a larger, continuing

plan or conspiracy; or (3) the offenses are all part of the same criminal transaction. See Moore, id.

at 240; State v. Shirley, 6 S.W.3d 243, 248 (Tenn. 1999). In this case, the trial court concluded that

all of the offenses were part of a larger, continuing plan, stating:

As the Court understands the State’s expected proof in this case, the

defendant allegedly has a long-standing habit of preying upon young runaways whom

he believes to be vulnerable to his sexual advances. Moreover, due to their age and

immaturity the victims he selects are easily persuaded and/or intimidated when it

comes to considering activities - such as “threesomes” and videotaped shower

activities involving two people of the same sex - in which an older, less-vulnerable

woman would be less likely to participate. Given this theory as well as the fact that
Our supreme court instructs us that, where the State moves pre-trial to consolidate offenses, “because the trial 15

court’s decision of whether to consolidate offenses is determined from the evidence presented at the hearing, appellate

courts should usually only look to that evidence, along with the trial court’s findings of fact and conclusions of law, to

determine whether the trial court abused its discretion by improperly joining the offenses.” Spicer, 12 S.W.3d at 445.

Logic dictates that, on motions to sever, we consider only the evidence presented at that hearing, as well as the trial

court’s findings of fact and conclusions of law. 

-16-

the incidents involving these two victims are so intertwined, the Court finds that the

defendant’s actions are part of a larger, continuing plan or conspiracy.

The Defendant contends that the evidence does not support this conclusion by the trial court.

At the evidentiary hearing conducted on the Defendant’s motion to sever, Detective Potter

testified that he investigated the allegations against the Defendant. During the course of the

investigation, he learned that T.M. had been residing with the Defendant during periods of time when

she was on “runaway status.” While she resided with the Defendant, she engaged in sex with him.

Det. Potter also interviewed T.H. and learned that she had lived with the Defendant and T.M. for a

short period of time during which she was also on runaway status. She engaged in sex with the

Defendant during this time. 

Det. Potter also learned that, in 1997, the Defendant was living with a “young girl” named

Brittany Wilson who was on runaway status. Police recovered from the Defendant’s residence a

videotape of Ms. Wilson engaging in sexual relations. Det. Potter interviewed the Defendant about

his relationship with Ms. Wilson and the Defendant admitted having sex with her. 

Det. Potter also interviewed the Defendant’s ex-wife, Christa Nichols. Det. Potter testified

that Ms. Nichols told him “that she met the defendant when she was thirteen and began a sexual

relationship with him at that point.” They married when Ms. Nichols was fifteen. 

Based upon Det. Potter’s testimony, the State established at the hearing on the Defendant’s

motion to sever that the Defendant had taken in and begun a sexual relationship with four under- 15

age females between 1997 and January 2002 (when the investigation leading to the instant charges

was conducted). We disagree with the trial court, however, that this proof was sufficient to establish

that the instant offenses were part of a “larger, continuing plan or conspiracy” and therefore parts

of a common scheme or plan as contemplated by Rule 14(b)(1).

Our supreme court instructs us that “[a] larger plan or conspiracy in this context contemplates

crimes committed in furtherance of a plan that has a readily distinguishable goal, not simply a string

of similar offenses.” State v. Denton, 149 S.W.3d 1, 15 (Tenn. 2004). Such a plan requires

“evidence that the defendant had a working plan operating towards the future such as to make

probable the crime with which the defendant is charged.” Id. In this case, the evidence indicates that

the Defendant has a proclivity for sexual predation upon underage girls, but the proof does not

indicate any particular overall goal or plan that the Defendant seeks to realize by his reprehensible

conduct, or that makes probable his commission of additional such offenses. The pursuit of sexual
-17-

gratification alone is not sufficient to satisfy the “common scheme or plan” requirement of Rule

14(b)(1). See id.; Moore, 6 S.W.3d at 240; State v. Hallock, 875 S.W.2d 285, 290 (Tenn. Crim.

App. 1993). Under the authority of these cases, then, we must conclude that the trial court abused

its discretion in finding that the first requirement for denying a severance was satisfied. 

We review a trial court’s erroneous failure to grant a severance under a harmless error

standard. See Denton, 149 S.W.3d at 15; Tenn. R. Crim. P. 52(a); Tenn. R. App. P. 36(b). That is,

“the defendant must show that the error probably affected the judgment before reversal is

appropriate.” Moore, 6 S.W.3d at 242. The line between harmless and prejudicial error in this

context is in direct proportion to the extent by which the proof at trial exceeds the standard required

to convict. See Denton at 15. “‘The more the proof exceeds that which is necessary to support a

finding of guilt beyond a reasonable doubt, the less likely it becomes that an error affirmatively

affected the outcome of the trial on its merits.’” State v. Toliver, 117 S.W.3d 216, 231 (Tenn. 2003)

(quoting State v. Gilliland, 22 S.W.3d 266, 274 (Tenn. 2000)). 

In this case, the State’s proof as to all of the offenses charged and tried together was

undisputed. All of the victim testimony was corroborated. The jury obviously found the witnesses

credible. Videotapes and photographs captured on film some of the Defendant’s illegal conduct.

In short, the State’s proof was significantly more than sufficient to establish the charges it levied

against the Defendant. Moreover, we conclude that, even had the offenses against T.H. been severed

from those against T.M., proof of the offenses against T.H. would have been admissible in the trial

of the statutory rape charges involving T.M. As noted above, in proving a case of statutory rape

where the victim consented to the sexual penetration, the State must offer corroboration because the

victim is considered an accomplice. See McKnight, 900 S.W.2d at 47-48. The State relied on T.H.’s

statement that she witnessed the intercourse between T.M. and the Defendant to corroborate T.M.’s

testimony about the sexual contact. T.H. was able to corroborate T.M.’s testimony because they

were having sex with the Defendant simultaneously. That is, the Defendant and the two victims

were having group sex. The circumstances of T.H.’s presence during the statutory rapes of T.M.

would have been relevant to her credibility and therefore admissible at trial. Accordingly, we

conclude that the Defendant has failed to demonstrate that the joinder of his crimes against T.H. with

those he committed against T.M. probably affected to his detriment the jury’s verdicts as to the

charges against him involving T.M. Therefore, we find that the trial court’s error in denying the

Defendant’s motion to sever was harmless asto the statutory rape counts naming T.M. as the victim.

We further find the error harmless as to the exploitation charges. 

With respect to the jury’s verdict on the statutory rape charges involving T.H., we

acknowledge that much of the proof adduced at the Defendant’s trial would not have been admissible

at a separate trial on the two counts charging the statutory rape of T.H. Accordingly, the potential

for harmful error resulting from the denial of a severance is greater as to those two verdicts.

However, we have previously determined that the Defendant is entitled to a new trial on these

charges because of a flaw in the State’s election of offenses. We need not determine, therefore,

whether the Defendant is also entitled to a new trial on those two counts on the basis that they should

have been severed. We simply caution the trial court that, unless it is given proof different from that
-18-

previously presented to it in opposition to the Defendant’s request for a severance, the two counts

alleging the statutory rape of T.H. should not be tried together with the remaining counts that we are

remanding for retrial. 

V. SENTENCING 

The Defendant was convicted of nine counts of statutory rape, a Class E felony. See Tenn.

Code Ann. § 39-13-506(c). The Defendant was also convicted of three counts of especially

aggravated sexual exploitation of a minor, a Class B felony. See id. § 39-17-1005(c). The trial court

sentenced the Defendant as a Range I, standard offender. The Range I sentence for Class E felonies

is one to two years. See id. § 40-35-112(a)(5). The Range I sentence for Class B felonies is eight

to twelve years. See id. § 40-35-112(a)(2).

After a hearing, the trial court sentenced the Defendant to two years on each of the statutory

rape convictions, and to eleven years on each of the exploitation convictions. The court ordered the

two year sentences in Counts One, Seven, Eight and the eleven-year sentence in Count Ten to run

consecutively to each other, but concurrently with the remaining counts, for an effective term of

seventeen years, to be served in the Department of Correction. The Defendant now contends that

the trial court erred in applying certain enhancement factors; erred in failing to apply certain

mitigating factors; and erred in ordering any of his sentences to be served consecutively. Initially,

we note that our disposition of the Defendant’s convictions on Counts Four, Five, Six, Eight and

Nine reduces the Defendant’s effective sentence to a term of fifteen years. 

A. Standard of Review

Before a trial court imposes a sentence upon a convicted criminal defendant, it must consider

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

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

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

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

113 and 40-35-114; and (f) any statement the defendant wishes to make in the defendant’s own

behalf about sentencing. See Tenn. Code Ann. § 40-35-210(b); State v. Imfeld, 70 S.W.3d 698, 704

(Tenn. 2002). To facilitate appellate review, the trial court is required to place on the record its

reasons for imposing the specific sentence, including the identification of the mitigating and

enhancement factors found, the specific facts supporting each enhancement factor found, and the

method by which the mitigating and enhancement factors have been evaluated and balanced in

determining the sentence. See State v. Samuels, 44 S.W.3d 489, 492 (Tenn. 2001).

Upon a challenge to the sentence imposed, this court has a duty to conduct a de novo review

of the sentence with a presumption that the determinations made by the trial court are correct. See

Tenn. Code Ann. § 40-35-401(d). However, this presumption “is conditioned upon the affirmative

showing in the record that the trial court considered the sentencing principles and all relevant facts

and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If our review reflects that

the trial court followed the statutory sentencing procedure, that the court imposed a lawful sentence

after having given due consideration and proper weight to the factors and principles set out under
At the sentencing hearing, the Defendant admitted that he had previously violated the terms of his probation

16

while serving a prior sentence. Hence, the Defendant does not challenge under Blakely the trial court’s application of

the enhancement factor regarding the Defendant’s failure to comply with a sentence involving release in the community.

-19-

the sentencing law, and that the trial court’s findings of fact are adequately supported by the record,

then the presumption is applicable, and we may not modify the sentence even if we would have

preferred a different result. See State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

We will uphold the sentence imposed by the trial court if (1) the sentence complies with the purposes

and principles of the 1989 Sentencing Act, and (2) the trial court’s findings are adequately supported

by the record. See State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001). The burden of showing that

a sentence is improper is upon the appealing party. See Tenn. Code Ann. § 40-35-401 Sentencing

Commission Comments; Arnett, 49 S.W.3d at 257.

B. Enhancement Factors

The trial court applied two enhancement factors to each of the Defendant’s sentences: the

Defendant has a previous history of criminal convictions or criminal behavior in addition to those

necessary to establish the appropriate range, and the Defendant has a previous history of

unwillingness to comply with the conditions of a sentence involving release in the community. See

Tenn. Code Ann. § 40-35-114(2), (9). With respect to the Defendant’s three convictions for

especially aggravated sexual exploitation of a minor, the trial court also imposed two additional

enhancement factors: the offenses involved a victim and were committed to gratify the Defendant’s

desire for pleasure or excitement, and the Defendant abused a position of public or private trust, or

used a special skill in a manner that significantly facilitated the commission or fulfillment of the

offense. See id. § 40-35-114(8), (16). 

The Defendant does not challenge the trial court’s application of enhancement factors (2) and

(9). He does challenge the trial court’s application of factors (8) and (16). We will first address the

Defendant’s contentions regarding the United States Supreme Court’s recent decision in Blakely v.

Washington, 124 S.Ct. 2531 (2004). The Defendant argues that, under Blakely, the trial court erred

in applying the latter two enhancement factors to his sentences on the exploitation offenses. 

The Blakely decision holds that the Sixth Amendment to the federal Constitution permits a

defendant’s sentence to be increased only if the enhancement factors relied upon by the judge are

based on facts reflected in the jury verdict or admitted by the defendant. See id., 124 S.Ct. at 2537. 16

The only basis upon which enhancement is otherwise permitted is the defendant’s previous criminal

history: where the defendant has prior convictions, the trial court may enhance the defendant’s

sentence without an admission or jury finding. See Apprendi v. New Jersey, 530 U.S. 466, 490

(2000); Blakely at 2536. 

Subsequent to the Defendant’s appeal of this case, the Tennessee Supreme Court considered

the impact of Blakely on Tennessee’s sentencing scheme and concluded that the Criminal Sentencing

Reform Act of 1989, pursuant to which the Defendant was sentenced, does not violate a defendant’s
-20-

Sixth Amendment rights. See State v. Edwin Gomez, No. M2002-01209-SC-R11-CD, 2005 WL

856848, at *22 (Tenn. 2005). Accordingly, the Defendant’s argument on this basis has no merit.

We turn now to the Defendant’s claim that the two challenged enhancement factors should

not have been applied in any event. With respect to the trial court’s determination that the Defendant

committed the exploitation offenses to gratify his desire for pleasure or excitement, the Defendant

states that “the State failed to meet its burden of establishing that the offenses in this case were

sexually motivated.” We beg to differ. The Defendant admitted at the sentencing hearing to taking

photographs of at least three minor females while they were engaging in sexual acts. One of the

videotapes made by the Defendant and admitted at trial depicts T.M. and T.H. naked in a shower

together; during this “performance,” T.M. lifts her breasts and shakes them at the camera. The other

videotape admitted at trial depicts the Defendant having intercourse with T.M. and T.M. performing

fellatio upon the Defendant. The Defendant kept these tapes at his home in reusable condition. They

contain explicit and graphic sexual activity with T.M., with whom the Defendant had an ongoing

sexual relationship. In describing how he supported himself, the Defendant did not mention that he

sold or rented these materials. The trial court was entitled to infer that the Defendant made and kept

these photographic materials for his own use and pleasure. The trial court did not err in determining

that this enhancement factor applied. 

The Defendant also complains that the trial court erred in finding that he abused a position

of trust in committing the exploitation offenses. He states in his brief, “the State failed to show both

that he occupied a position of trust with respect to the alleged victims, and that he abused such

position by commission of the offenses in this case.” Again, we disagree.

Our supreme court instructs us that application of this factor

requires a finding, first, that [the] defendant occupied a position of trust, either public

or private. The position of parent, step-parent, babysitter, teacher, coach are but a

few obvious examples. The determination of the existence of a position of trust does

not depend on the length or formality of the relationship, but upon the nature of the

relationship. Thus, the court should look to see whether the offender formally or

informally stood in a relationship to the victim that promoted confidence, reliability,

or faith. If the evidence supports that finding, then the court must determine whether

the position occupied was abused by the commission of the offense.

State v. Kissinger, 922 S.W.2d 482, 488 (Tenn. 1996). We have little difficulty concluding that the

Defendant occupied a position of trust with respect to T.M., who was a named victim in each of the

three exploitation counts. The Defendant behaved as T.M.’s husband and eventually became such.

He provided her with a home and the other necessities of life. She obviously trusted him. The

Defendant abused his position of trust with T.M. by using her to create sexually explicit

photographic materials, in violation of our statutes prohibiting child pornography. The trial court

committed no error in applying this enhancement factor.
-21-

C. Mitigating Factors

The trial court applied as a mitigating factor to all of the Defendant’s sentences the fact that

his criminal conduct neither caused nor threatened serious bodily injury. See Tenn. Code Ann. § 40-

35-113(1). The trial court specifically stated in its sentencing order that it “considered the facts and

circumstances surrounding this case in applying each of these mitigating factors and the appropriate

sentence in these cases. All remaining mitigating factors were considered and found not to apply.”

The Defendant now argues that the trial court should have applied the following additional

mitigating factors: that substantial grounds exist tending to excuse or justify his conduct; that he was

suffering from a mental condition that significantly reduced his culpability for the offense; and that

he suffered an “unstable childhood,” including “being the victim of sexual abuse.” See id. § 40-35-

113(3), (8), (13).

In support of his argument that he has substantial grounds tending to excuse or justify his

conduct, the Defendant states in his brief that his relationship with T.M. “met with approval from

her family, provided her with more emotional stability than she had in her troubled past, and resulted

in marriage.” We are not persuaded. A parent’s misguided approval of the commission of a crime

against his or her child does not excuse or justify the offense. The proof at the trial and the

sentencing hearing does not support the Defendant’s claim that he provided T.M. with “emotional

stability.” Indeed, the notion that one can “cure” the harm caused by statutory rape and especially

aggravated sexual exploitation by subsequentlymarrying the victim is offensive on its face. The trial

court did not err in refusing to apply this factor in mitigation.

The Defendant argues that his mental health problems, including diagnoses of post-traumatic

stress disorder, anxiety disorder and bipolar disorder, significantly reduced his culpability for his

offenses. However, the Defendant has failed to adduce sufficient proof as to the link between these

problems and his reduced culpability. Mental health problems do not automatically reduce one’s

obligations to conform one’s conduct to the law. The trial court did not err in refusing to apply this

factor in mitigation.

We are likewise unimpressed with the Defendant’s arguments regarding his childhood.

One’s own abuse does not lessen one’s duty not to abuse others. The trial court did not err in

refusing to apply this factor in mitigation.

D. Length of Sentences

Our sentencing statutes provide that the presumptive sentence for B and E felonies is the

minimum in the range. See Tenn. Code Ann. § 40-35-210(c). Where there are enhancement and

mitigating factors, “the court must start at the minimum sentence in the range, enhance the sentence

within the range as appropriate for the enhancement factors, then reduce the sentence within the

range as appropriate for the mitigating factors.” Id. § 40-35-210(e). In this case, the trial court’s

balancing of one mitigating and two enhancement factors with respect to the statutory rape

convictions resulted in the imposition of the maximum sentence of two years for each of those

offenses. We are not persuaded to modify the trial court’s ruling on these crimes. With respect to

the exploitation offenses, the trial court applied four enhancement factors and a single mitigating
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factor, resulting in sentences of one year less than the maximum. We see no error in this result and,

accordingly, will not modify it.

E. Consecutive Sentences

The trial court ordered three of the statutory rape sentences to run consecutively to each other

and to the exploitation sentences, for an effective term of seventeen years (now reduced to fifteen

years as the result of our reversal of several convictions). The Defendant contends that the trial court

erred in ordering any of his sentences to be served consecutively.

The Criminal Sentencing Reform Act of 1989 permits a trial court to order sentences to run

consecutively if it finds by a preponderance of the evidence any of the following seven criteria:

(1) The defendant is a professional criminal who has knowingly devoted [his or her]

life to criminal acts as a major source of livelihood;

(2) The defendant is an offender whose record of criminal activity is extensive;

(3) The defendant is a dangerous mentally abnormal person so declared by a

competent psychiatrist who concludes as a result of an investigation prior to

sentencing that the defendant’s criminal conduct has been characterized by a pattern

of repetitive or compulsive behavior with heedless indifference to consequences;

(4) The defendant is a dangerous offender whose behavior indicates little or no regard

for human life, and no hesitation about committing a crime in which the risk to

human life is high;

(5) The defendant is convicted of two (2) or more statutory offenses involving sexual

abuse of a minor with consideration of the aggravating circumstances arising from

the relationship between the defendant and victim or victims, the time span of

defendant’s undetected sexual activity, the nature and scope of the sexual acts and

the extent of the residual, physical and mental damage to the victim or victims;

(6) The defendant is sentenced for an offense committed while on probation; or

(7) The defendant is sentenced for criminal contempt.

Tenn. Code Ann. § 40-35-115(b). The trial court did not indicate upon which of these criteria it was

relying in imposing partially consecutive sentences. However, the proof adduced at the trial and

sentencing hearing lends support to both criteria numbers (2) and (5). Accordingly, we will review

the propriety of the Defendant’s consecutive sentences under those provisions.

 The presentence report admitted into evidence at the Defendant’s sentencing hearing

indicates that the Defendant has prior convictions for eight misdemeanors and one felony, which

record the Defendant does not dispute. Additionally, the Defendant admitted to using illegal

substances. He further admitted to numerous instances of statutory rape involving his first wife. He

committed many instances of statutory rape with T.M. for which he was not charged. We have no

difficulty concluding that the Defendant’s record of criminal activity is extensive. 
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We also conclude that consecutive sentencing is appropriate under criterion number (5). The

aggravating circumstances present in this case include the Defendant’s use of a stun gun to force

T.M. to perform oral sex on him in front of her sister; his predation upon T.M.’s friends; and his

encouraging T.M. to participate in group and homosexual sex with another minor. The Defendant

carried on his relationship with T.M. for approximately two years. While the Defendant argues that

the sexual activity was not “undetected” because T.M.’s mother was aware of it, the activity went

undetected by authorities. T.M.’s mother’s failure to safeguard her daughter from the Defendant

does not accrue to the Defendant’s benefit in this context. The nature and scope of the sexual acts

was extensive, including intercourse, fellatio, sex toys, homosexual and group sex. We acknowledge

that the State put on no specific proof as to the residual, physical and mental damage to T.M.

However, the record demonstrates that this young woman experienced two miscarriages while still

very young as a direct result of the Defendant’s conduct. Any failure by the State to adduce

additional proof on the damage done to T.M. by the Defendant does not overcome the strength of

the remaining proof necessary for the application of this criterion. The trial court committed no error

in finding that consecutive sentences are proper.

Finally, we look to the overall length of the Defendant’s effective sentence in relation to the

seriousness of the offenses committed. See Tenn. Code Ann. §§ 40-35-102(1) (the defendant’s

effective sentence must be “justly deserved in relation to the seriousness of the offense[s]”) and 40-

35-103(2) (the defendant’s effective sentence “should be no greater than that deserved for the

offense[s] committed”). Because we have reversed several of the Defendant’s convictions, the

Defendant’s effective sentence has been reduced to fifteen years. Given the Defendant’s long history

of criminal conduct and the Defendant’s utter lack of remorse for his behavior, which is indicative

of a reduced potential for rehabilitation, we are confident that the Defendant’s effective sentence of

fifteen years is appropriate and justified under all of the circumstances of this case. The Defendant

is not entitled to relief on the issues he raises with regard to his sentencing.

CONCLUSION

We reverse and remand for retrial the Defendant’s charges of statutory rape against T.M. set

forth in Counts Four and Five. We reverse and dismiss the conviction of statutory rape arising under

Count Six. We reverse and remand for retrial the Defendant’s charges of statutory rape against T.H.

set forth in Counts Eight and Nine. The Defendant’s effective sentence is thereby reduced to fifteen

years. In all other respects, we affirm the judgments of the trial court. 

___________________________________ 

DAVID H. WELLES, JUDGE