# FILED
April 21, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE NOVEMBER 1998 SESSION

STATE OF TENNESSEE, ) ) C.C.A. No. 01C01-9709-CC-00388 Appellee, ) ) Maury County v. ) ) Honorable W illiam B. Cain, Ju dge CHARLES D. MULLINS, ) ) (Aggravate d Sexual B attery) Appellant. )

FOR THE APPE LLANT: FOR THE APPELLEE: William C. Bright John Knox Walkup Assistant Public Defender Attorney General & Repor ter 128 North Second Street 425 Fifth Avenue, North Pulaski, TN 38478 Nashville, TN 37243 OF COUNSEL: Lisa A. Naylor Shara Ann Flacy Assistant Attorney Gener al District Public Defender 425 Fifth Avenue, North 128 North Second Street Nashville, TN 37243 Pulaski, TN 38478 T. Michael B ottoms District Attorney General P. O. Box 459 Lawrenceburg, TN 38464 Stella L. Hargrove Assistant District A

ttorney General P. O. Box 459 Lawrenceburg, TN 38464 Jesse Durham Assistant District A

ttorney General P. O. Box 1619 Columbia, TN 38402

OPINION FILED: ____________________________

____ AFFIRMED L. T. LAFFERTY, SENIOR JU DGE 

### O P I N I O N1 It is the pol icy of this Court not to reveal the identity of minor victims of sexual abuse. The victims will be referred to by their initials. 2 The appellant, Charles D. Mullins, referr ed herein as “the defendant,” appeals as of right from a judgment of

the Maury County C riminal Court as a resul t of jury convictions fortwo counts of aggrav ated sexual battery. A fter a sent encing hearing, the trial court imposed Range II sentences of six teen years for

each count. The sentences were ordered to run consecutively in the Departmen t of Correction. The defendant presents s even appella te issues for review:

1. Whether the trial court erre d in ruling t h at if the defendant should testify in the trial the state could impeach him with a prior conviction for sexual

assault. 2. Whether the trial court erred in not granting a motion to sever the offenses since none of the incidents elected at the end of the state’s proof invol ved the same tr a nsaction and the unfair prejudicial effect of the joint trial of these counts denied the defend ant a fair trial. 3. Whether the trial c ourt erred i n admi tti ng, over the d ef endant’s objection, testimony conc erning the de fendant’s possession of pornography , and th e children viewing pornog raphy in the defendant’s room, since it constituted a pri or bad act whose unfair prejudicial effect outweig hed any probative val ue. 4. Whether the trial court erre d in not instructing the jury as to the lesser

included offense of simple assault as to the victim, KB. 1 5. Whet her

the trial court erred i n allowing the jury to return a verdict in the defendant’s absence. 6. Whether the trial court erred in finding the defendant a Range II offende r, s ince it wrongfully concluded the defendant’s sexual assault convi ction in Texas was a felony that could be used to increase the range of punishment. 7. Whether the trial court erred in apply ing the enhancementfactors o f more than one victim being harmed in each incident, the age of the v ict ims made them particularly v

ulnerable, and the defendant’s desire forgratification, thereby senten cin g the defendant to two sixteen-year

sentences to run consecutiv ely.
After a thorough review of the entire record, briefs of the parties, and applicable law, we affirm the trial court’ s judgment.3 FACTUAL BA

CKGROUND In indictme nt no. 96 79, the Ma ury C ount y grand jury cha rged the defendant with three counts of aggrava ted sexua l battery, all alleging the victims were less than 13 years of age. In count one, the defendant was accused of th e aggravated sexual batteryof KB,
a child less than 13 year s of age, in August - September 1995. In count two, the defendant
was accused of the aggravated sexual battery of TS, a chi ld less than 13 years of age, in August - September

1995. In count three, the defendant w as accused of the aggravated sexual battery of EC, a child less than 13 year s of age, on or

about November

16, 1995. As a result of a three-day jury trial, the defendant w as found guilty in counts one and three of aggravated sex ual battery on KB and EC. I n count two, the defendant was found not guilty as to the child, TS. In view of the issues raised on appeal, it is necessary to set forth the facts leading to the defendant’s convictions.
TS’s Testimony TS, who was age 1 1 a t the time of trial, testified that she and her fa mily lived in McGee’s Trailer Park from May t o September of 1995. The child was fr iends with KB

and EC. TS, KB, EC, Michael and Timmy, who were EC’s cousins, and TS’s stepbrother all pla yed at the defendant’s home on a regular basis during the summ er and after sch ool

. While at the defendant’s house, the children watched movi es, and TS, KB, and sometimes Michael, would play cards i n the defendant’s bedroom. The defendant also played children’s games, such as tag or hide and go seek, outside wi th them. TS described a red
van in the defendant’s yard that had been given to the childr en as a playhouse anda black
van that he used to take TS, KB, EC, and the other children to McDonald’s or to the park to swim. The defendant’s mother was a resident of the home but usually remained in the living room during

the children’s vis its. On one occasion, while KB and TS were in the defendant’s bedroom, TS testified that the defendant use d a gray massager on her front private part. TS w as lying on the bed w ith her feet touching the floor. The defe ndant also rubbed KB with the mass ager . The victim described “nasty pic tures” of girls that w

ere displayed on the

TV and stereo in the defendant’s bedroom. She saw some cassettes containing sexually explicit pictures4

on the wall, but the defendant did not talk to the victim about th e pictures or cassettes. On another

occasion, TS

saw the defendant tickling KB with his finger on her front privatepart. KB st

arted crying, got u p, and ran to h er house wi th TS. Th e defendant followed the two children and sai d, “If you accept my apolog y, I’ll give you two un ic orn pictures.”KB told her mother about the incident. TS described a third incident in the defendant’s bedroom when Michael Cobb tried to get on top of her, but she resisted. The defendant was present at the time. TS denied ever leaving any underwear

at the defendant’s home. She testified that the defendant told “us” that he had a silencer and that he described it as somethi ng that goes on the end of a gun so nobody can hea r if the gun is sh ot. TS also stated that the defendant never

removed her clothes or hi s clothes and never touched her with his private part. KB’s Testimony KB, age 10 at the time of trial, te stified that she lived

with her mother in the

McGee Trailer Park area in 1995. KB, TS, EC,and Michael and Timmy Cobb w ent to the defendant’s home almost every day . There, they would hav e fun and pl aygames, such
as hide-and-seek and Uno, a car d game. KB stated that she and TS played cards w ith the defendant in his bedroom. She also described the red “play van” in the defendant’s yard and the black van that the defendant used to transpo rt the children. KB testified that the defendant allowed both she and TS to si t in his lap and drive the black van. KB testified that the defendant touched her front private part w ith a gray massager on one occasion whenshe and TS were lying on the bed in the defendant’s bedroom. The defendant also used the massager on TS. KB stated that both childre n were clothedand that she told the defendant to stop.

On another occasion while inside the red “play van,” the defendant touched KB on her front private part with his hand during a tic kle game invented by TS. TS was present at the time. KB told the defendant to leav e her alone, and both children ran to KB’s home. While KB was telling

he r mother what the defendant had done to her, the defendant appeared, saying he was sor ry. During these episodes, the defendant did not attempt to5

remove KB’s clothes or expose himself. Although the victi m saw some pornographic picturesof girls on the defendant’s bedro om wall and in his van, the defendant did not talk to her about these pictures. She also identi fied cassetteswith sexually explicit covers

that were hanging on the defendant’ s bedroom wall.
Other Testimony EC’s cousin, Michael Cobb, age 10 at the time of trial, testified he now l ives in Texas but lived in the McGee Trai ler Park in 1995. Michael testified he occasi onally went to the defen dant’s home with TS, KB, EC, Timmy,and Travis. In August and September , th e witness went to the defend ant’s hom e almost every day. The defend ant had t wo bedrooms, on e for him and one for his mother. On the defendant’s bedroom wall, t h e witness saw “nasty pictures.” The witness also saw some cassettes in the defendant’s blackvan, which TS, KB, EC, and the others would ride in.According to the wi tness, the defendant told him that he had a massager, and he had stuck it in KB and T S’s “pee-pee” while they were lyi ng on the bed. The defendant told the witness not to tell anyone. On
one occasion, the witness saw the defendant touch TS and KB on “the bottom” while they
were on a swing. The wi tness testified heand his cousin saw the defendant s tick a tent rod in TS’s “bottom.” On anothe r occasion, the defendant told him t o get on top of TS. Mrs. Vickie Beech, mother of KB, testified sh e knew both the defendant and his mother and had visited them in thei r home. The defendant owned two v ans, an oran ge one, in w hich the children playe d, and a black one. The defendant woul d take T S, KB , Michael, Timmy, and other chil dren swi mming and to McDonald’s, ac companied by the witness. Nothing unusual occurr ed during any of these outings. In August or September, Mrs. Beech testified that her daughter, KB, and TS came home, and KB told her that the defendant had tickled her and rubbed against her “private,” and

she was scared. TS also told Mrs. Beech that the defendant had touc hed KB. At this same moment, the defendant walked up and KB started crying . The defendant told Mrs. Beech “that he was tickli ng her
on the ground and that she got up, and he rubbed her private. And sh e r an home. . . . [H]e didn’t want to lose their f riendship beca use of this.” T he defenda nt kept saying, “I’m sorry.” Mrs. Beech testified that she had seen a pornographic picture in the defendant’s2 From a review of the recor d, it appears the

five cassettes were not reviewedby the jury, but the sexuall

y explicit cov

ers of the other cassettes w ere shown.
6 blackvan and that, on one occasion , she had to admonish the defendant for showing pornographic pictures to TS and KB in the orange van (playhouse). Terry Ha nvy, TS’s stepfather, testified that the children and the defendant ha d chosen each other as friends and spent their afternoons after school pl aying games at the defendant’s house. Mr. Hanvy recalled seeing KB sitting in the defendant’s l ap drivinghis blackvan. He also recall ed an incident in which the defendant wanted TS and h er stepbrother to spend the night with him, but Mr. Hanvy refused to allow it. James Shannon, Col umb ia City Police Officer and former Maury County Deputy S heriff, testified he assisted George Holt, Criminal Investigator, in obtaining a search warrant for the defendant’s residence. In November 1995, Officer Shannon and Donnie Ray, Reserve Deputy Sheriff, executed the search warrant at the defendant ’s home, looking for sexuallyexplicit material. Deputy Ray testified that he remembered seeing “a lot of pornography” in the defendant’ s bedroom during the search,including about a hundred cassetteswith pictures on them and pictureson the wall s. He also s aw the name “Tiff any” written across the c eiling above the bed and s ome children’s books and ot he r itemsin the bedroom. Officer Shannon seiz ed a picture of a nude woman; a body
mas s ager; five cassettes; numerous covers from other cassettes; a page from a child’s coloring book with EC’s first name on it, and a Led Zeppelin CD. 2 Steve Cobb, father of EC, testified that on N ovember 16, 1995 hereturned hom e from work at 2:40 p.m. Cobb lived next-door to the defendant. EC arrived home fro m kindergarten and proceeded to the defendant’s home, w hich she usually did every da y. When Cobb went to ask the defendant for help in lo ading a love seat onto a t ruck, he observed the defendant c ome out of his bedroom without a shirt, followed by his daughter. The defendant assisted Cobb in loading the love seat. Cobb left h is daughter a t th e defendant’s home while he took the furnitu re to a sto rage faci lity. Later that night, Cobb
ran some bath water for his daught er. When the child got into the tub, she screamed and said she was hurting. When Cobb asked her where she was hurting, the chi ld pointed to her vaginal area. Cobb i nquired if anyone had touched her, and she told him thatthe7

defendant had put his finger in her. Dr. Kathleen Dodd, emergency r oom physician for the Maury County Region a l Hospital, testified she examined EC, age 5, on November 16, 1995. Dr. Dodd found no trauma or tears in the child’s

vaginal wall and found her hymen to be intact. Dr. Dodd did find a foreign hair in the vaginal area. The child was referred to the Our Kids Ce nter i n Nashville. Ms. Sue Ross, licensed nurse practitioner and expert in suspected child abuse offenses, testified s h e conducted a pelvic examination on EC at the Our Kids Center in Nashville. With the use of a colposcope, Ms. Ross ex amined the vaginal and rectal areas of the child. Ms. Ross found an irritated area at the bas e of the entrance to the genital
area. As to the rectum, Ms. Ross found tiny breaks in the skin around the rectal area. Ms Ross testified the irritation found in the genital area could be consistent with the i nsertion of a finger, but could also be attr ibuted to a large number of other reasonable causes. The victim, EC, attempted to testify, but was unable to answer any ques tions. It was stipulated by the state and the defendant that the hair sample found on EC was not consistent with know

n hair samples of the defendant. The defendant elected not to testify. However, the defendant called Ms. Windy Capley, from the Department of Children’s Service

s, to impeach

the victi m, KB, concerning the answers give n by KB duri ng an inte rview. Mrs. Virginia Parker, the defendant’s mother, testified about her observati ons of the children around her so n. Based upon the entire te stimony, the jury f ound the defendant guilty of the aggravatedsexual battery of KB (c ount 1) and EC (count 3), but not guilty of the all egation concerning TS (count 2).

APPELLA TE ISSUES Part A Defendant’s Prior Conviction The defendant contends the tria l court committed error in permit ting the state the opportunity

to cross-examine

the defendant regarding a pri or sexual assault conv iction in Texas.8 Pursuantto Tenn. R. Evid. 609(a)( 3), the stategave written notice to the de fendant
on October 7, 1996, that it intended to use the def endant’s convictions for sexual assault and attempted aggravated ass ault at trial. On October 31, 1996, the defend ant filed a motion for a hearing prior to tr ial to exclude these conv ictions. Tennessee Rule of Evidence 609(a)(3) provides that the trial court , upon r equest, must determine if the conviction’s probative value on cr edibility outweig hs its unfair prejudicial effect on the substan tive issues. Further, the trial court may r ule on the admissibility

of such proof prior to the trial, but, in any

event, shall rule pri or to the testimony of the accused. If the court makes a final determination that such pr oof is admissible for impeachment pur poses, the accused need not actually testify at the trial to later challenge the propriety of the determination. At the conclusi on of the state’s proof, the defendant, without testifying or offering a proffer of proof, moved the trial co urt to rule on the admissibi l ity of his prior convictions. The trial court denied the st ate the right to confront the defendant abo ut a conviction for unauthorized use of a motor vehicle in 1979. As to the other conv ictions, the court ruled, “On the others, I’m going t o overrule your obj ection. I think they’re usable for impeachment purposes.” First, we recognize the t ria l court did not conduct a w eighing process purs uant to Rule 609(a)(3). In making a determination, the trial court should: (1) assess the similarity between the crime on trial and the crime underlying the i mpea ching conviction; and (2) analyze the relevance t he impeaching convictio n has to the issue of credibil ity. State v. Barnard, 899 S.W.2d 617, 62 2 (Tenn. Crim. App.), per. app. denied (Tenn. 1994); State
v. Farmer, 841 S.W.2d 837, 839 (Tenn. Crim. App. 199 2) (citing Ne il P. Cohen, et al., Tennessee Law of Evidence § 609.9 at 288 (2d ed. 1990)). In Barnard, 899 S.W.2d at 622, this Court construed Rule 609( a)(3) and observed that the probative value of a pr ior sexual battery

conviction on the issue of an accused’s credibility

was “slight.”

See also , State v. Steven O. Ford, No. 01C01-9403-CC-00089, 1995 WL 544004 (Tenn. Crim. App., Nashville, Sept. 14, 1995) (rape). Similarly, specific instancesof sexual conduct have been held not to be probative of a witness’s truthfulness
or untruthfulness under the similarly worded provisions of Rule 608. State v. Baxter, 938 S.W.2d 697, 702 (Tenn. Crim. App.), per. app. denied (Tenn. 1996). In all likelihood had9

the defendant testified, the case woul d have been subject to a remand for a new trial. Absent specific factual findings to support the trial court’s ruli ng, we disagree with the mere stat ement of the trial c ourt tha t the con vi ctions were usable for impeachment. Nonetheless, we find that the defendant hasfailed to establish that he w as prejudiced by this ruling. Additionally, the defendant di d not make an offer of proof to preserve the i ssue forappeal. See Tennessee Law of Evidence, § 609.9 at 377 (3d ed. 1995). There is no merit to this issue.

Part B Denial of Severance At the conclusion of the state’s pr oof, the state made an election as to the two offenses involving the v ictim, KB. The state elected to submit to the jury the allegation of the inappropriate tickling , where the defendant touched KB’s privat e part, and not the incidenton the bed, when the defendant touched KB and TS with a body massag er. The victim, TS, was a w

itness to this offense. Also, the jury was to consi der the allegationof the inappropriate touching of TS with the massager. F urther, the jury w as to consider the allegation of November 16, 1995, where in the defendant was alleged to have inserted his finger in EC’s genital

area. The decision to grant a sev erance is left to the sou nd disc retion of the trial court. State v. Furlough, 797 S.W.2d 631, 642 (Tenn. Crim. App. 1990). This dis cretion will not be disturbed unless the defendant is unfairly or unduly pr ejudiced. It is the defendant’ s respo nsibility

to show that he is clear ly prejudiced by th e trial court’s refusal to grant a severance of offenses. State v. Hodgkinson, 778 S.W.2d 54, 61 (T enn. Crim. App. 1989); State v. Wiseman, 643 S.W.2d 354, 36 2 (Tenn. Crim. App. 1982). Prior to trial an d pursuant to

Tenn. R. Cri m. P. 14(b)(1), the defendant filed a motion fora severance of all three counts. The defendant contends these offenses are not part of a common scheme or plan, and eviden ce against oneis inadmissible on the tr ial of the others. In response to the defendant’s motion,the trial court was concerned about count three, the allegation of EC, being properly joi ned with counts one and tw o but decided that the three counts could go to trial together. The trial cour t declined to make a ruling on the10

two prongs of Tenn. R. Crim. P. 14 (b)(1), “the offenses are part of a common scheme or plan and the evidence of one would be admissible upon the trial of the others;” however, the trial court denied the defendant ’s motion for severance. First, we find that

a joinder

of all three counts would be permissible under Tenn. R. Crim. P. 8(b), “if the

offenses constitute parts of a common scheme or plan or if they are of the same or similar character.” We now must address th e trial court’s decisi on not to consider the two prongs until

the pr oof was offer ed. The first prong of Tenn. R. Cri m. P. 14(b)(1) requires the

trial court to find a common scheme or plan.A common scheme or plan for severance purposes is th e sa me as a scheme or plan for evidentiary purposes. State v. Hoyt, 928 S.W.2d 935, 943 (Tenn. Crim. App. 1995); State v. Hallock, 875 S.W.2d 285, 289-90 (Tenn.Crim. App. 1993). There are three categories of “common scheme or plan” evidence: (1) disti nctive designs or s ignature crimes; (2) a larger, continuing plan or conspira cy; and (3) the same transaction. Hoyt , 928 S.W.2d at 943 (citing Neil P.Cohen, et al., Tennessee Law of Evidence , § 404.11 (2d ed. 1990)). In the first category, similar crimes c ommitted by a defendant are “admissi ble to show the defendant’s modus operandi from which it may be inferred that the defendant pro bably com mitted the nearly identical crime for which he or she is on trial.” Id . To determine whether ce rtain crim es fit int o this cat egory, “the test is not whether there was evidence that a defendant committed both crimes, but whether there was a unique method used in com mitting the crimes.” Hoyt, 928 S.W.2d at 943; State v. Young, 566 S.W.2d 895, 898 (Tenn. Crim. App. 1978). The second category, “continui ng plan or conspiracy ,” involves not the similarity between crimes, but the common goal or purpose at which they are directed. Neil P. Cohen, et al., Tennessee Law of Evidence § 404.11 at 183 (3d ed. 1995). As to the third category, the crime must occur within a si ngle criminal transaction. Hallock, 875 S.W.2d at 290. This category permit s proof ofacts occurring before and after the offense at issue to be ad mitted to provide the trier of fact w ith the full story. Nei l P. Cohen, et al., Tennessee Law of Evidence § 404.11 at 184 (3d ed. 1995). For two or more offenses properly joined under Rule 8(b) in the same indictment, and the defendant has filed a motion to sever the offenses for trial, Rule 14(b)(1) requires that the trial court: (1) find that the offenses are part of a common sche me; and (2) comply3 The current version of the tex t appears at 22A C.J.S . Cr iminal Law § 560 (1989) as follows: Under, or apart from, statutes or rules of criminal procedure,

ordinari ly, consolidation for trial is permissible or proper where the offenses charged are similar, related, or connected, or are of the same or simila r character or class, or involve or arose out of the same or rel ate d or connected acts, occurrences, transactions, series of even ts, conduct, or set of circumstances, or are ba sed on acts or transactions constituting parts of a common s cheme or plan. Also, consolidation for trial i s permissible or proper where the offenses charged are of the same pattern and committed in the (continued...) 11 with the procedural r

equirements of Tenn. R. Evid. 404(b). Hoyt, 928 S.W.2d at 944. In
a pretrial hearing, the

trial court must determine that evidence of

bad acts or prior cri mes is relevant

to a material issue other than character. Thus, evidenc e of other crimes may be admissible to show

(1) motive , (2) inten t, (3) guilt y knowledge , (4) iden tity, (5) absence of m istake or accident, or ( 6) a common scheme or plan for commiss ion of two or mor e crimes so related to

each other that the proof of one tends to establish the other. Collard
v. State, 526 S.W.2d 112, 11 4 (Tenn. 1975); see State v. Morris , 788 S.W.2d 820, 821-22 (Tenn. Crim. App.), per. app. denied (Tenn. 1990) (common scheme to sexually molest young victi ms). The trial cour t must con duct a ba lancing te st in weighi ng the pro bative value of such evidence against its unfair prej udicial effect. State v. McKnight, 900 S.W.2d 36, 51 (Tenn. Crim

. App. 1994), per. app. denied (Tenn. 1995). In McKnight, 900 S.W.2d at 51, this Court set out factor s to cons ider wh en conducting this balancing test. These factors include “the prosecution’s need for the evidence, the lik elihood the defendant committed the other crimes, and the degree of its relevance.” Id. The Court also added that “the similarity of the acts makes the probative value particularly significant.” Id.

Coun ts One and

Two Since the trial court did not conduct a hearing as required by Tenn. R. Evid. 404(b),
we elect to complete an analysis as the victims’ testimonie s are in the record before us. Hoyt, 928 S.W.2d at 945. We must first determine whether the offenses charged were part of a common scheme or design that would permit consolidation at tr ial. The Tennessee SupremeCourt has adopted the language of 23 C.J.S. Cr iminal La w § 931 3 governing3 (...continued) same man ner, or

where there is a common el ement of substantial importance in their commiss ion, even thoug h th e offenses charged do not relate to the same transaction and were committed at

different times and places against di fferent victims, or where the same, or much the same, evid ence will be competent and admissible or req uired in their prosecuti on, and if not joined for trial the r epetition or repro duction of substantially the same testimony will be required on each trial. 12 joinder and severance as follows:

Ordinarilyconsolidation for trial or refusal to order a severance or separate trial is permissible or p r oper where the offenses charged are similar, related, or connected, or are of the same or similar character or

cla ss, or involve or

arose out of the same or related or

connected acts, occurrences, transactions, s eries of events, or chain of circumstances, or are based o n acts or transac

tions const ituting par

ts of a common scheme or plan, or are of the same patterns and committed in

the same manner, or where there is a c ommon el ement o f substantial importance in this commission, or w her e th e same, or much the same, required in their prosecution , an d if not joined for trial the repetition or reprod uctio n of substanti ally the s ame testimony will be r

equired on each trial. Wiseman , 643 S.W.2d at 362-63 ( citing State ex rel Gann v. Henderson , 221 Tenn. 209, 425 S.W.2d 616-618 (1968)). Thecircumstances surroundi ng the complaints of KB and TS are sufficiently similar to establish a distincti ve design, i.e., mo dus ope randi , thus establishinga common scheme or plan. Both chil dren testified that they wer e touched by the de fendant w

ith the g ray mas

sager i n their

priva te areas while in the de

fe ndant’ s bedroom on the same day. KB was i nappropriately touched in her front private area by the defendant during a tickle game,which was witnessed by TS. Even if the two counts had been severed, each child w ould have been a factual witness as tothe other’s complaint. Clearly, th e offens es occurri ng in the defe ndant’s bedr oom and during

the tickle

game meet the qua lification of a common scheme

or plan for commission of two or more crimes
so rela ted to each other that proof of one tends to establish the other. McKnight , 90 0 S.W.2d at 51; Tenn. R. Evid. 404(b). We find counts one and two were properl y joined for trial. There is no merit to this issue.

Count Three From our analysis, we conclude that the offense involving EC w as also part of a
common schemeor plan in conjunction w ith countsone and two. This Court has allowed13

joinder of sexual offenses when the defendant uses a distinctive pattern of behavior to entice young victi ms, and the pattern is relevant to a nonpropensity issue,such as intent
or absence of mistake. For exampl e, in S tate v. McKnight , denial of the defendant’s motion to sever was pro per when the manner in which the defendant s elected and prepared his victims for sex ual contact formed a distinctive pattern, even though there were some differences between the specific allegations against the defendant. See McKnight , 900 S.W.2d at 52. In that case, the defendant raised a defen se that the bo ys had mistaken his pro per exp ressio ns of affe ction as sexual. Id. at 46. This Court found it significant

that all of the victims w ere boys between the ag es of 9 and 15, who lived in the defendant’s neighborhood and gathered at the defenda nt’s home, which they referred to
as “the shack.” Many of the victims were from br oken or disadvantaged

homes. Generall y, the defendant had first establ ished a rela tionship of fr

iendship and

trust with his vic

tims by variousmeans, such as taking them out to eat, playing

games and watching mov ies with them, and pay ing f or their recreational ac tivities. As a prel ude to sexual contact, the victims were eventually

shown pornography a

t “the shack,” and most of the sexual contacts occurred the re. Because the similarities between the allegations far outweighed the differences, this Court stated that this was sufficient to establish “such a distinctive design that evidence of each of the crimes could be used i n the prosecution of the other.” Id. at 52. Likewise, in State v. Morris , 788 S.W.2d 820 (Tenn. Crim. App.), per. app. denied (Tenn

. 1990), this Court found that numerous similarities between the various charg e s against the defendant established a co mmon scheme and plan to molest the youngsters
on his tumbling team, despite the fact that the offenses occurred over a four-year period. Id. at 822-2 3. All nine victims were young boys from a local black community between the ages of nine and twelve years to whom the defendant became a fa ther-li k e figure. The defendant enticed the youngsters to his home by providing games and entertainment for them. He manipulated his v ictims by proceeding slowly with the sexual molestations,
usu a lly beginning with i nappropriate touching done i n a playful manner, so as not to frighten the victims, an d later progressing to more extensive conta ct. All of the incidents occurred in the defendant’s bedroom or another room of defendant’s house while he w as14

alone with the victim. The defendant, as a school bus driver and the tumbling team leader,
was perceived to be a positi ve force in the community and used this position to

select and nurture relationships w ith his prospective v

ictims. Id

. The Court stated: We conclude that

the defendant’s various offenses were parts of a common scheme and plan on his part to sexually molest these young victims. The defendant’s acts were of an ongoing nature, carried out regularlyover a four-year per iod. Had the variouscounts ofthe indictment been tried singly, the evidence concerning the other incidents woul d h ave been admissible. The various of fenses we re so related in time and circu mstanc es that proof of one tended to elucidate and establish the others. Id. at 823. Additionally, the Court found that evidence from eac h incident

would be relevant in a separate trial of the other s to show intent or absenc e of mistake or accident, and, therefore, severance w as properly denied by

the trial court. Id. In the present appeal, th e sta te argues that denial of severance was proper, because the offenses are part of a common scheme or plan that goes to a relevant issue, such as intent or absence of mistake. We agree. While the incident involving EC o

ccurred at a separate time than that of TS and KB, that alone is not enough to req uire severance. The facts surrounding all three offenses are similar enoug h forus to find that the defendant had both a com mon sche me or plan to molest his young vic tims and a distinc tive manner bywhich he accomplished this, much like the defendants in McKnight and Morris

. KB, TS, and EC were all young

girls between 5 and 10 years of age, who livedin the defendant’s neighborhood and played at his home on a reg ular ba sis. The def endant assumed a positive role as a babysitter and a friend for the prospectiv e victims. As

a prelude to sexual encounters, the defenda nt nurt ured a trusting relati onship with the childr en by providing food, drinks, and entertainment for the m and by playing games with them. He took the girls
on outings to the swimm ing pool, park, o r to get something to eat. All three girls were exposed to pornography in the defendant’s bedroom , where the y were encou raged to p lay, and all three described incidents of sexual con tact in the bedroom or at the defendant’s house. Each of the instances of sexual contact involved the defendant putting his hand
or other object in the vic tim’s genital area. There were items from two of the vic tims displayed in the defendant’s bedroom, i.e., EC’s coloring picture and “

Tiffany” written on the ceiling with stars around it. All of the offenses occurred within a three- tofour-month15

period and likely ended only because EC told her father what the defendant had done to her, which causedvarious authorities to become involved. The si milarities between these off enses faroutweigh the differences and point to a common sch eme to molest these young girls. The evidence involving EC i s part of this common scheme, and the crimes are
so related that proof of one tends to establish the others. In addition, theevidence of the allegations

involving EC w

ould be admissible in the separ ate trials of th e others to show intentand absence ofmistake asto the tickling inci dent with KB. Applyi ng the balancing test of Tenn. R. Evid. 404(b), we find the probative value of the evidence involving EC is not outweighed by possible prejudice to the defendant in joining it with the other off enses, and the trial court did not abuse its discretion in d enying severance of cou nt three. Furthermore, the defendant has failed to clearly show that he was prejudiced by

the denial of severance. On appeal, the defend ant does n ot specifically state how he was prejudiced by the joinder of offenses but relies on State v. Hoyt, 928 S.W.2d 935 (Tenn. Crim. App. 1995), for his contention that th e “taint” of allowing the state to introduce both incidentsinvolving KB “ would bolster the other offenses.” We disagree. The Hoyt court found a unique design in the incidents invol ving the molestation of two of the defend ant’s step-granddaughters but held that the defendant was prejud iced by a denial of severance. However, this prejudice stemmed fromthe fact that the indictment left the dates of these offenses open for sixteen months, which would allow ev idence of other unindicted bad acts forboth victims cover

ing the entire period to be introduced against th e defen dant. The court was concerned that such evidence from one victim would have a “bolstering” effect on the other joined victi m’s case. Hoyt, 928 S.W.2d at 945. The prejudicial effect of joinder that concerned the Hoyt court is not present in the defendant’s case. The fact that the defendant was found guilty on the count involving

KB, and not on th at involvin g TS, shows that the jury was able to separa te the two most similar and closely tied off enses, and tha t no “bolstering” occurred. It is logical to ass ume that the jurywas equally as capable of separating the allegations involv

ing KB and EC, which were not as closely connected, to reach a proper conclusi on. This issue is without merit. Finally, any error com mi tted by the trial court in denying severance is harmless. When the proof exceeds reasonab le do ubt on every count on which the defendant is16

convicted, the outcome would not likel y have been changed by separate trials. See State
v. Hallock

, 875 S.W.2d 285 (Tenn. Crim. App. 1993). Here, the evidence presented at trial
was more than sufficient to convict the defendant on counts one and three inv ol vi ng KB and EC and exceeded reasonable d oubt.

Part C Admission of

Pornographic Material The defendant alleges the trial court erroneously admitted ev idence of the defendant’s possession of pornographic material and permitted the victims to testify asto their observations of the por nographic material. The sta te argues this issue

is waivedin that the defendant did not raise this issue in his motion or amended motion for new trial. From our review of the rec ord and hearing of

the motion for a new trial, the defendant did raise these issues. The defendant con tends the trial court failed to co nform to the requirements of Tenn. R. Evid. 404(b), citi ng State v. McCary, 922 S.W.2d 511, 51 4 (T enn . 1996). The state counters that the admissibil ity of the pornographic mat erial was relevant pursuant to Tenn. R. Evid. 401. That Rule states:

“Relevant

evidence” means evidenc e having any tendency

to mak e the existence of any fact that is of consequence to th e determination of the action more probable or less probable than it would be without the evidence. The admissibility of evi dence is dependent upon its relevance under R ules 401 and 402. The rel evance ofproffered evidence is determine d by the issues presented for resolution in the trial, which i n turn, are determined by th e elements ofthe offense charged and the defense asserted by the accused. As stated in the Advisor y Commission Comment to Rule 401, “to be relev ant, eviden ce m ust tend to prove a material issue.” State v. Dubose, 953 S.W.2d 649, 653 (Tenn. 19 9 7). The determination of whether proffered evidence is relev ant in accordance with Tenn.R. Evid. 402 is an abuse of discretion. Dubose, 953 S.W.2d at 652; State v. Forbes, 918 S.W.2d 431, 449 (Tenn. Crim. App. 1995). Once a trial court complies w

ith the requirements of Rule 404(b), then its ruling will no

t be disturbed, unless there has been an abuse of di scretion. The trial court’s compliance must be su bstantial. Dubose, 953 S.W.2d at 652.17 It still remains strong Tennessee law that evidence of other crimes, or bad acts or wrongs, is inadmissible when the defendant is on trial for a cr im e or an act of the same character. State v. Rickman, 876 S.W.2d 824, 829 (Tenn. 1994). It is only thr ough a proper determination pursuant to Tenn. R.Evid. 404(b) that other crimes, wrongs, or acts become relevant and thus admissi ble. The conditions whi ch must b e satisfied before allowing proof of other cr imes, wrongs, or ac

ts are: (1) The court upon request must hold a hearing outside the jury’s presence; (2) The court must d etermine that a ma teri al issue exists other than conduct conforming with a character trait, and must upon request state on the record the material issue, the ruling, and the reasons for admittin g th e evidence; and (3) The court mus t exclude t he eviden ce if its p robative value is outweighed by the danger of unfair prejudice. Tenn. R. Evid. 404(b). Also, the trial court must find by clear and convincingevidence that the defendant
c o mmitted the other crimes. McCary, 922 S.W .2d at 514 (citin g State v. Parton, 694 S.W.2d 299, 303 (Tenn. 1985)). The trialcourt held an out-of-jury hearing, listened to the state’s proposed testimony of the tw o victims and Michael Cobb concerning “nasty or dirty pictures” and cassettes covers. The trial court held the proffered evidence was admissible under Rule 404. From our review of the record, the trial court did not fully comply with the requirements

of Rule 404(b) . The trial court failed to set out in the record the material issue to which the evidence was relevant and made an inadequate determination of the probative value v

ersus unfair prejudice. We will complete

the analysis to determine the admissibility of

the evidence relating to the pornographic pictur es and cassettes. In McCrary , 922 S.W.2d at 514, our Supreme Court i ndicated t hree instances where other uncharged wrongs or bad acts may be admissible: (1) to prove identit y (inc lu ding motive and common scheme or plan); (2) to prove intent; and (3) to rebut a claim of mistake or accident if asserte d as a defense. In the present case, the evidence and testimony regarding the victim s’ exposure to pornography is relevant on several grounds. We have found a common scheme or plan
on the part of the defen dant to molest these victi ms, and the defendant’s intent is an18

element of the charged offenses of aggrav ated sexual battery. I n addition, the defendant has raised what is essentially a defense of accident, cl aiming that he did not mean to touch KB in a sexual manner duri ng the tickling incident at his house. Ther e is clear and convincing evidence in the r ecord that the defendant had th e pornography

and exposed the children to it. TS and KB testifi ed that they saw “nasty pictures” and cassettes in the defendant’s bedr oom. Michael Cobb testified that he saw pornographic pictures and cassettes in the defendant’s bedroom and i n the van. The defendant and Cobb did talk about the pic tures, but the victims w ere no t prese nt. KB’s mother testif ied that she had to stop the defendant from showing KB and TS a pornographic picture in the “play van” under the guise of reading to the girls . The exposure of these victims to sex

ually explicit mat

erial was especiallyrelevant in this cas e as part of the common scheme or plan used by the defendant, along with the ov ertures of friendship, to prepare the childrenfor his sexual advances. The evidence w as also probative on the issue of the defendant’s intent and to refute his claim that he accidentally touched KB’s private part. Furthermore, the probative value of this evidence is not outweighed by unfair prejudice to the defendant. The fact th at the jury did not find the de fendant guilty of the allegations

involving TS show

s that the def e ndant was not unfairly pr ejudiced by the admission of this evidence. We believe the trial court was correct in admitting the evidence concerning the pornographic material. Even if the admission by the trial court had been erroneous, the error is harmless, given the substantial proof of the defendant’s g uilt in sexually abusing these children. The testimoniesof TS and KB were identical in most details. The recovery of the massager, the defendant’s attemptsto sway KB’s mother,and the testimony of Michael Cobb as to the defendant’s admissions, the testi mony of EC’s father, Steve Co bb, and the medical proof were sufficient, in the jury’s mind, to find the defendan t guilty of the offense. There is no merit to this issu e.

Part D Included Offense19 The defendant co ntends the trial court failed to charge the included offense of simple assault in the

offense of aggravated sexual battery involv

ing the complaint of KB. The state argues there is no evidence that t he defendant committed a simple assault. Also, the state alleges the defendant failed to raise this issue in his motion for a new trial
or in his amended motion for a new t rial. From our rev iew of the record, the defendant properly raised this

issue, but it was re

jected by the trial court. We do not need to reach the issue of whether

or not simple assault is a lesser included offense of aggr avated sexual battery to resolve this issue. If any error oc curred on the part of the trial court in failing to4 Although we are not deciding w hethe r or notsimple assault is a less er included offense of aggravated sexual battery today, we have some doubts as to whether it would qualify as such under our Supreme Court’s holdings in State v. Trusty , 919 S.W.2d 305, 310-11 (Tenn. 1996), and State v. Cleveland , 959 S.W.2d 548, 55 3-54 (Tenn. 1997). 20 instruct the jury as to the lesser crime, it was harmless. 4 In State v. Williams , 977 S.W.2d 101 (Tenn. 1998), our Supreme Court conducted
a harmless error analy sis on th e trial court’s failure to instruct the jury on voluntary mansl aughter

as a lesser offense of first degree murder. Although the facts in Willi am s mayhave supported an instruc tion on voluntary manslaughter, the trial court only charged the jury with the el ements of first degree murder and th e lesser grade or class offenses of second degree murder and reck less homicide. The Supreme Cour t found that: [T]he trial cou rt’ s erroneous failure to charge voluntary manslaughter

is harmless beyond a re asonable doubtbecause the jury’s verdict

of guilt on the greater offense of fir st degree murder and its disinclination to consider the lesser i ncluded offense of second degreemurder clearlydemonstrates that it would not have returned a verdi ct on voluntary manslaughter. Id. at 106. Clearly, the jury

in the present case had before it the elements of aggravated sexual b at tery. The jury was also instructed on sexual batt ery as a lesser gr

ade offense but convicted the defendant of the greater off ense. This leads us to believe that the jury would not have returned a ver dict of simple assault.

Part E Jury Verdict The defendant contends he is entitled to a new trial, becau se th e trial court erred in accepting the jury’ s verdict in his abs ence, citing Tenn. R. Cr im. P. 43(a)

. The state argues the defendant’s absence was due to a voluntary overdose of drugs, which required hospitalization. Rule 43(a), Tenn. R. Crim. P. p rovides “Un less excused by the c ourt upon the defendant’s motion, the defendant shall be presentat the arraignment, at ev ery stage of the trial i ncludin g the im panelin g of t he jury and t he return of the verdict, and at the imposition of sentence, except as otherwise provided by this rule.” Rule 43(b) sets forth when a defendant is not requi red to be present:21 T he further progress of the trial to and including the re turn o f the verdict and impositi on of sentence shall not be prevented and the defendant shall be considered to have wai ved the right to be present whenever a defendant, initially pres ent: (1) Voluntarily is absent after the tria l h as commenced (whether or not h e or she has been informed by the court of the obligation to remain during the trial). As to this unusual set of circumsta nces, the record establishes the j ury instructions and submission of the case were given to the jury

at 1:38 p.m. on December 11, 1996. The jury was ready

to report their verdi ct at 3:34 p.m. D uring this time period, the defendant was taken to the hospital for emergency treatment. After thoroughly consider

ing Rule 43 (a) and (b), the trial court ele cted to a ccept the jury ve rdict in the defendant’s absence. W e quote a portion of the trial cou rt’s ruling:

The jury retired to consider of its verdic t a t 1:34 P.M. this afternoon, December 11, 1996. It is now 3:34 P.M. Now, the defendant was present throu gh ou t the trial of the case and throughout

the charge. The j uryretired to consider of its verdict. The defendant was pr esent at that time. Shortlya fter the jury retired to cons ider of its verdict, i n the courtroom, the defendant ha d some form of visible distress, in which he appeared to revert to a s emiconscious state, and was pale, clammy, and nonresponsi ve. There was a Licensed Practi cal Nurse, who happened to be in the courtroom at the time, came forward to render assistance. The hospital was called and the emergency medical te am came to the courtroom. The defendant was s till no nr esponsive. The jail nurse was a lso in the courtroom, and the defendant continued in a nonre sponsi ve state. He was tak en by the emergency medica l team to the emergency room at the hospital. I made a call to the emergency room, told th em the circumstances, and asked for a response as to the defendant’s condition at the earliest possible time. About a half hour ago, I received a response that indicated the hospit al intended to keep the defendant, at least overnig ht, and the prel imina ry diagnosis was an overdose of Elavil, which may have occurred during lunch hour. That is not a definiti ve diagnosis, and I received it only secondhan dedly . But the decision of the medical personal is that the defendant will not be release d. Further, the trial court found if the defendant indeed overdosed on Elavil, it was a voluntary act on his

part. A review of

the record at the motion for a new trial establishes the defendant did not offerany proof as to the reasons w hy he suddenly was taken i ll or “overdosed” involuntarily22

due to a prescription drug

. We agree with the trial court that the defendant’s ingestion of a sufficient quanti ty of drugs to require hos pitalization would be considered volun tary in the absence of evidence to the con trary. The defendant most assuredly has the r ight to be present during his trial, including the return of the verdict; however, this right may be w aived. A defendant who voluntarily absent

s himself after a trialhas comm enced sh all be con sidered t o have waived his right to be present

. State v. Kirk, 699 S.W.2d 814, 819 (Tenn. Crim

. App.), per. app. denied

(Tenn. 1985). Thedefendant in this case was present until the jury retired for deliberation. He consumed a drug whi c h rendered him nonresponsiv e and semi-conscious to emergency treatment and required hospitaliz

ation. In the defendant’s absence, he was nevertheless represented by c ompetent counsel. W e find that he voluntarily waived his right to be present. State v. Clayton Arnold V each, No. 87- 272-III, 1988 WL 68063 *2 (Tenn. Crim. App., Nashvil le, June 14, 1988), per. app. denied (Tenn. 1988). There is no merit to this issue. Part F Multiple Offender The defendant contends the trial court erred i n finding a Texas convic tion proper

to establish the defendant as a Range II offender. The state argues the record supports that the defendant is a Range II multipl e offender. Since the defendant claims he is not a Ran ge II multiple offend er, w e must determine from the record at the sentencing hearing if the trial court was correct in findin g the defend ant a Ran ge II off ender. T he defe ndant was convi cted of aggravated sexual battery, a Class B felony. To be clas sified as a Range II multipl e offender, a defenda n t must have “a minimum of two (2) but

not more than four (4) prior felony convictions within the conviction class, a higher class, or within the next two (2) lower felon yclasses.” Tenn. Code Ann. § 40-35-106 (a)(1) . With rega rd to the applic ation of o ut- of-state convictions to determine the applicable range, the Code states:

Prior convictions include convictio ns under the laws of any other state, government, or

country which, if committed in this state, woul d h ave constituted an offense cogniz able by the laws of this state. In the event that a felony from a jurisdiction other than Tennessee is not a named felony in this state, the elements of the offense shall be used by theTennessee court23 to determine what classification the offense is given. Tenn. Code Ann. § 40-35-106(b)(5)

. At the sentencing hearing, tw o certified copies of

felony convictions, c

oncerning the defendant, were intro duce d into the record. First, a certified copy of the defendant ’s
con viction for sexua l assault entered by the Distr ict Court o f Grimes County, Texas, o n June 17, 1991, was introduced. For that conviction, the defendant received a sentence of ten years, which w

as suspended, and he was placed on immediate pr obation for ten years. Second, a certified copy of a conv iction for attempted aggrav ated assault, a

Class D felony (reduced from the charge of rape of a child ) entered on October 5, 1992, by the Maury County, Tennessee Criminal Court was introduced. See Tenn. Code Ann. §§ 40-35-110; 39-12-107(a). The defendant was sentencedto three years in the Tennessee Depar tment of Correction. In addition, a third certifie d copy o f the defendant’s conviction for possession of a controlled substance on Apr il 27, 1981, in the Municip al Court of Cheyenne, Wyoming, was introduced. The defendant re ceived a thirty-da

y suspended sentence and a $200 fine for that convicti on. A fourth certified copy of a conv iction for unauthorized use of a motor vehicle entered on May 15, 1979, by the 263rd District Court of Harris County, Texas, was introduced. The defendant w as sentenced tothree years in the Texas Department of Correction. Ms. Charlotte Henson, Department of Human Services for Maur y County, testified she talked to Wayne Rucke r , District Clerk for the 278th Judicial District Court of Texas, about the defendant’s conviction i n 1991. Ms. Henson was advis ed the defendant had been indicted for the penile penetration of the female sexual organ of a child less than 14 years of age. The child was ag e 9 at the time of the a ccusation. I n his testimony, the defendant denied he was guilty of any sexual offenses in Texas or Tennessee. He could not explain why al l these accusations occurr ed. The version of Texas Penal Code Annotated § 22.011 (W est 1990), under whi ch the defendant was convicted, defines sexual assault as:

(a) A person commits an offense if the person:

* * * * (2) intentio nally or kno wingly:24 (A) causes the penetration of the anus or female sexual organ of a child by any means.

* * * * (f) An offense under this sectionis a felony of the second degree. From our analysis, it i s clear that t he offense as set out in the Texas statutes is comparable to rape of a child in Tennessee, a Class A felony. Tenn. Code Ann. § 39-13- 522. The defendant has two prior felony convictions that are within a class higher or within the next two classes below his current Class B conviction for agg ravated sexual assault, and, therefore, qualifies as a Ra nge I I offender pursuant to Tenn. Code Ann. § 40-35- 106(a)(1). State v. Brooks , 968 S.W.2d 312 (Tenn . Crim. App.), per. app. denied (Tenn. 1998); State v. Jerry G. Norrid , No. 01C01-9507-CC-00225,19 96 WL 374107 (Tenn. Crim. App., Nashville, July

5, 1996). In ad dition, the defendant’s prior Class A conviction is a separate Range II qualifier w hen combined with the defendant’s current Class B convi ction. Tenn. Code Ann. § 40-35-106(a)(2) . Subsection (a)(2) of Tenn. C ode Ann. § 40-35-106 classifies an offender

as Range II when he has “[o]ne (1) Class A prior felony conviction if the defendant's conviction offense is a Class A or B fe lony.” Because the defendant is
a Range II offender under the provisions of either § 40-35-10 6(a)(1) or (a)(2), the trial court was correct in cla

ssifying him as such. This issue has no merit.

Part G Sentencing The defendant contends the trialcourt erred in finding three enhancement factors to increase the term of conf inement and in sen tencing h im to two si xteen-yea r consecu tive sentences. These are: fac tor (3), th e offense invo lved mo re than one victim; factor (4),
a vi ctim of the offense was particular ly vulnerable becaus

e of age; and factor (7) , th e offense involveda victim and was committed to gratify the defendant’s desire for pleasure
or excitement. The defendant does n ot c hallenge the application of factor (8), the defendant has a previously history of unwillingness to comply with conditions of a sentence involving release in the community. The state contends the trial court properly sentenc ed the defendant to an appropriate period of confinement.25 When an accused ch allenges th e lengt h, rang e, or man ner of th e servi ce of a sentence, this Court h a s a duty to conduct a de novo review of the sentence w ith a presu mp tion of correctness. Tenn. Code Ann. § 40-35-401(d). T his presumption is “conditioned upon the affirmative showing in the record that the trial court considered the sentencing principles and all relevant facts and circu mstan ces.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). Ifthe court misapplies or fails to apply appropriate factors, the presumption of correctness no l onger stands. State v. Shelton , 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992). In conducting a de novo review of a sentence, thi s court must consider: (a) the evidence, if any, received at trial and the sentencing hearing; (b) the presentence report; (c) the principles of sentencing and arguments as to sentencing alternat ives; (d) the nature and characteristics of the criminal conduct involved; (e) a ny statut ory mitigating or enhancement factors; (f) any statement that the defendant made on his own behalf; and (g) the potential or lack of potenti al for rehabilitation or tr eatment. Tenn. Code Ann. §§ 40- 35-102, -103, and -210; see State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987). If our review reflect

s that the trial court foll owed the statutory sentencing procedure, imposed a lawful sentence after havi ng given due consideration and proper w eight to the factors and principles set o ut under the sentencing law, and that the trial cou rt’s findings of fact are adequately support ed by the record, then w e may not modify the sentence ev en if we would have pr

eferred a different result. St ate v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). From our review of the rec ord, the trial court m isapplied factors (3), the offense involved more than one victim, and ( 7), the offenses were committed to g ratify the defendant’s desire fo r pleasur e and exc itement, to t his case. Thus, we rev iew the trial court ’s judgmen t without the benefit of the presumption of correctness. The trial court found six enhancement factors: Tenn. Code Ann. § 40-3 5-11 4(1), the defendant has a prior criminalhistoryin addition to those necessar y to establish the necess ary range; (3) the offense involved more than one v ictim; (4) the

age ofthe victims made them particularly vulnerable; (7) the offenses were committed to gr atify the defendant’s desire for pleasure and excitement; (8)the defendant has a previous history of unwillingness to c

omply with26

conditionsof a sentence involving release in the community; and (13) the defendant w as on probation when these felonies were committed. Further, the trial court found that confinement was necessary, under Tenn. Code Ann. § 40-35-103( A ) and (B), to protect society and to avoid depreciating the seriou sness of the offense. The trial court found no mitigating factors appli cable. A conviction for aggr

avated sexual battery

is a Class B f elony. The pres umptive sentence for a Class B felony shall be the minimum sentence in the range, if the re are no enhancementor mitigating factors.Tenn. Code Ann. § 40-35-210(c). Since the defendant
was found to be a Range II offender, the a pplicable range of punishment is not less than twelve years nor

more than twenty year s. Tenn. Code Ann. § 40-35-112(b) (2). The defendant argues that the trial court erroneously found that factors (3), (4), and (7) were applicable. We agree with the defendant and the state that factor (3), the offense involved more than one v ictim, does not apply. In addition, we agree w ith the defendant that factor (7), the offenses were c ommitted to gratify the defendant’s desire for pleasure and excitement, is inapplicable to this case . Since this factor is al so an essential element of sexual battery, the court is not permitted to use it as an enhancement factor. See State v. Kissinger, 922 S.W.2d 482, 489 (Tenn. 1996). In State v. Adams, 864 S.W.2d 31, 35 (Tenn. 1993), our Supreme Court prov ided a framework for the applicati on of factor (4) relating to the victim’s vulner ability: [T]he vuln erabil ity enhancement relates more to the natural physical and mental limitations of the victim than merely

to the victim’s age. . . . The factor can be used . . . if the circumstancesshow that the victim, because of his age or ph ysical or mental condition , was in fact “particular l y vulnerable,”i.e., incapable of resisting, summoning help, or testifying against the perpetrator

. Id. (emphasis added). We a gre e with the defendant that the tri al court was in err or for finding that the victim, KB, was particularl y vulnerable, factor (

4). Applying

the test in State v. Adams , we find that the victim, KB, was n ot p articularly vul nerable. KB was 10 yea rs old and was capable of resisting the defendant and seeki ng help. In fact, she did resist and sought help bytelling her

mother of the defend ant’s act ions. Howe ver, as to t he victim, EC, age 5, we believe the trial court was correct in finding her particularly v ulnerable. Certainly , this five-27

year-old child was

incapable of resisting or summoning help and, as it developed, she was unable to testify. The child’s i ncident only came to light when she informed her father why she was hurting duri ng her bath. Clearly, the tri al court was correc t in applyingfactor (4) to the facts in EC’s case. The state would urge this Court to find that the defendant abu se d a pos ition of privatetrust under Tenn. Code Ann. § 40-35-115(15). This factor al lows a sentence to be enhanced when the defendant abuses a position of public or priv ate trust. To determine if this enhancement

factor is applicable, w

e must look

at the formal or informal nature of the parties’ relationship to see if it pr omoted confidence, reliability, or faith. State v. Kissinger

, 922 S.W.2d 482, 488 (Tenn. 1996). The defendant, over four to five months, developed a continuing friendship with several neighborhood children, including the victims. These children came on a regular basis to thedefendant’s home, where he cultivated their trust even to the extent of show ing pornographic pic

tures to the children. The defendant provided a van for thechil dren to play in and encouraged them to spend time in and around his home. On other occasions , the defendant would take the chil dren to McDonald’s for food, accompanied by one of the chil dren’s mother. We believe under these facts, the defendant abused a position of private trust involving KB and especially EC. Factor (15) is app ropriately applicabl e to enhance the defendant’s sentence. The record fully supports the trial court in apply ing enhancement f actors (1) and (13), as well as factor (4) to the offense involving EC. Tenn. Code Ann. § 40-35-114. The defendant certainlyhas a prior history of convictions, whic

h surround the sexual abuse of
sma l l children, and he was on pr obation for a sexual assault in Texas at the time of the offense. Fact or (15), abu se of a private trust, is also applicable to this s ituation. The overwhelming

proof of the other

enhancement factors justifies the trial court in increasing the minimum sentence from twelve to sixteen years. Tennessee Code Annotated § 40-35-115, Multiple Co nvictio ns, provides a trial court may order sentences to run consecutively or c oncurrently: (a) If a defendant is convicted of more than one (1) criminal offense, the cou rt shall order sentences to run consecutively or concurrently as provided by the criteria in this sec

tion. (b) The court may order sentences to run consecutively28 if the court findsby

a preponderance of the evidence that: * * * * (2) The defendant is an offender whose record of criminal activity

is extensive; * * * * (5) The defendant is convicted of two (2) or more statutory offenses inv olvi ng sexual abuse of a minor with consideration of the aggravating circumstances

arising from the relationship between the defendant and victim or victims, the t ime span of defendant’s undetected sexual activity, the natu re an d scope of the sexual acts and the ex tent of the residual, physical and mental damage to the victim or victims; (6) The defendant is sentenced for an offen s e committed while on probatio n. In State v. Wilkerson , 905 S.W.2d 933, 93 7-38 (Tenn. 1995), the Supreme Court imposed two addition al require ments f or consec utive sent encing: th e court mu st find c onsecut ive sentences are reaso nably r elated to the severity of the offenses committed and are necessary to protect the public from further criminal conduct. In view of the defe ndant’s past criminal history in volving minor children, we find the aggregate sentences are
re asonably related to the severity of the defendant’s present of fenses. The publi c i s entitled to protection from such further conduc t. Tenn. Code Ann. § 40-35-115. There is no merit to this issue.29 The trial court’s judgment is affirmed.

________

_______________________ ________

_ L. T. LAFFERTY, SENIOR JU DGE

CONCUR:

___________________________________ DAVID G. HAYES, JUDG E

___________________________________ JOE G. RILEY, JUDGE