State v. Bobby Dale Franklin, Sr.

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED OCTOBER SESSION, 1998 April 13, 1999

Cecil Crowson, Jr. Appellate C ourt Clerk

STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9804-CR-00129 ) Appellee, ) GREENE COUNTY ) V. ) HON. JAMES E. BECKNER, JUDGE ) BOBBY DALE FRANKLIN, SR. ) (AGGRAVATED SEXUAL ) BATTERY; AGG RAVATED RAPE; Appe llant. ) RAPE O F A CHILD )

FOR THE APPELLANT: FOR THE APPELLEE:

GREG W. EICH ELM AN JOHN KNOX WALKUP District Public Defender Attorney General & Reporter

MICHAEL A. WALCHER ELIZABETH B. MARNEY Assistant Public Defender Assistant Attorney General 1609 Co llege Park D rive 2nd Floor, Cordell Hull Building Morristown, TN 37813 425 Fifth Avenue North Nashville, TN 37243

C. BERKELEY BELL, JR. District Attorney General

ERIC D. CHRISTIANSEN Assistant District Attorney General 109 South Main Street, Suite 501 Greeneville, TN 37743

OPINION FILED ________________________

AFFIRMED AS MODIFIED

THOMAS T. WOODALL, JUDGE

OPINION

The Defe ndan t, Bobb y Dale Frank lin, appeals as of right his convictions for aggravated sexual battery, aggravated rape, and rape of a child, following a jury trial in the Criminal Court of Greene County. The convictions are as follows:

OFFENSE DATE OF SENTENCE OFFENSE (as alle ged in presen tment)

Count O ne: aggravated sexual battery between March twelve (12) years 1990 and ___ 1992

Count T wo: aggravate d sexual battery ___ 1992 twelve (12) years Count Three : aggravated rape summer 1992 twenty-five (25) years

Count Four: rape o f a child between ___ twenty-five(25) years 1992 and ___ 1993

Count Five: rape o f a child June 3, 1995 twenty-five (25) years Count Six: rape of a child June 4, 1995 twenty-five(25) years

Count Se ven: aggravate d sexual battery between June 5 twelve (12) years and June 9, 1995

Count Eig ht: aggravated se xual battery June 29, 1992 twelve (12) years The trial court ordered his four convictions for rape to run consecutively with each other and conc urrent to the four con victions for aggrava ted sexual battery, for an effective sentence of 100 years. In this ap peal, D efend ant rais es the followin g six (6) issues :

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I. Whether the trial cour t erred in adm itting certain testimon y;

II. W hether the trial court’s verdict forms were improper;

III. Whether Count Fo ur should be dismissed (Count Five o f the presentm ent);

IV. W hether the trial c ourt er red in e xcluding certain testimon y;

V. Whether the trial court erred in allowing the testimony of Dr. Reardon regard ing penetration; and

VI. Whether the trial court committed sentencing errors.

After a ca reful review of the reco rd, we affirm the judgm ent of the tria l court.

Sum mary o f the Fac ts

Testimony at trial revealed that on June 9, 1995, the twelve-year-old victim, T.S. (we will use the initials rather than the full name of the victim), insisted on going to work with her mother. While the mother and d augh ter wer e in the car, the victim started crying a nd sa id that D efend ant, the victim’s stepfather, had raped her. The mother immediately notified authorities and took T.S. to the hospital emergency room to be examined.

Dr. Dona ld Verlin Tucker, Jr. examined T.S. at the eme rgenc y room and h is examination revealed a history of sexual abuse consistent with that which she had told him. He tes tified tha t he exa mine d the vic tim five d ays afte r the pe nile penetration had allegedly occurred. He testified that the genitalia examination was norma l except for th e abse nce of a h ymen .

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Dr. Peter Reardon, an obstetrician/gynecologist, took a medical history of the victim on June 14, 1995, which included her statement that she had bled for two days after penile penetration on Sunday, June 4, 1995 , and had experienced two other vaginal penetrations, one digitally and one orally. Dr. Reardon discovered two sma ll broken areas on the victim’s hymen when doing a pelvic examination, but found no recent trauma to the vagina or any laceration s. Dr. Re ardon s aid that a “recent trauma ” to the hym en take s abou t six to eight days to heal after being torn and tha t after ten da ys it would lo ok like a he aled wo und.

The victim testified at trial about various types of sexual abuse inflicted by Defendant, described the circumstances surrounding each incident of abuse, and gave approximate dates for most incidents based on where the family was living, what car the family was driving, and birthdays of family members. The time span for Defe ndan t’s sexual abuse oc curred over a seven-year period beginning when T.S. was five and ending when she was 12.

T.S. testified that her family moved to the “blockhouse” when she was about five years old and that a barn was located on the prope rty. W hile the family live d in the “blockho use,” De fendan t took the vic tim to the barn to feed the cats. In the barn, Defendant placed her on stacked bales of hay, removed her panties, and fondled her. T.S. d id not te ll her mother about this incident before June 9, 1995, although she testified that she believed that this incident occurred in 1987.

In 1990, when the victim had finished the second grade, th e family m oved to a house on Snake Hollow Road. At that time, the family owned a red Thunderbird.

-4-The victim said that she and Defendant were in the red Thunderbird traveling towards the fam ily’s prior residence, the “blockhouse,” when Defendant began “playing with himself,” pulled to the side of the road, and stopped the car. Defendant then walked to the passenger side of the car, removed the victim’s “b ottom c lothes,” and started rubbing her vagin a and m asturba ting. Defendant ejaculated on T.S. and wiped the ejaculate off with his bandana handkerchief. The victim did not tell her mother about this incident before June 9, 1995, because she was afraid that Defendant might hurt her by “whippin g” her. Up on obje ction by D efenda nt, the trial court instructed the jury to disregard the victim’s statement about Defendant “whipping” her. Defendant moved for a mistrial based on that statement, but the trial court ove rruled it.

T.S. testified that while she and Defendant were riding in a red Buick car he had purchased that day, Defendant said he needed to go to his employer’s garage to roll up the windows of his garbage truck. Other proof showed that the vehicle was purchased on June 29, 1992. While the victim was sitting in the Buick, she locked the car doors because she was afraid that Defendant “might try something.” After Defendant told the victim to unlock the doors, he took her out of the car, laid her on a pallet, removed her panties, got on top of her, and began rubbing his penis against her. When the victim said “you promised you wouldn’t do this again ,” Defe ndan t told her that this was the last time.

Sometime before her bro ther’s Augu st 22n d birthd ay in an unspe cified year, Defen dant, the victim, and her brother were taking items to the garage at the Snake Hollow Road residence. Defendant sent the victim’s brother to feed the chickens. When Defendant and T.S. were alone in the garage, Defendant rubbed her vagina,

-5-masturbated, ejaculated, and wiped the ejaculate off her with his bandana handk erchief. T.S. stated that “this happened several times, abou t four or five times.”

On another occasion, Defendant was stan ding be side the B uick with h is pants unzipped and his penis exposed while the victim’s mother was mowing the yard. Defen dant forc ed T.S . to put her m outh on his penis and to pe rform fellatio .

During the wintertime after the year 1990, Defendant used Vaseline that was kept on the victim ’s mothe r’s dresse r to pene trate the victim digitally in the adults’ bedroo m.

On the Saturday after school ended in 199 5, De fenda nt cam e into th e victim ’s bedroom while victim was reading a book, pulled down her shorts and panties, and said he was checking to see if she had “been with any boys.” Then he performed cunnilingus on her. After telling her he was going to do what he “usually” did, he rubbed her vagina, mas turbate d, ejac ulated , and w iped th e ejac ulate o ff with his bandana handkerchief. Neither the victim’s mother nor brother were at home during this inciden t.

On June 4, 1995, again while her mother and brother were away from the house, Defendant penetrated the victim with his penis in the victim’s bedroom. Defendant told T.S. that he would kill her if she told anyone. The victim was crying and bleeding from the penetration and she continued to bleed for two days.

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On June 7, 1995, Defen dant, the victim, and her brother went to Kinser Park. They had been on their way to visit the children’s mother at work, but learned that the mother could not get off to see them. As the victim and Defendant walked through the woods at Kinser Park looking for a place to fish, Defendant began playing with the victim’s breasts through her clothes. T.S. said that she tried to get away, bu t Defend ant told he r, “If you try to get a way it ma kes m e want yo u more .”

At the co nclus ion of th e victim ’s testimony on direct examination, counsel for Defendant objected to her statement that Defendant had sexually battered her four or five times in the Snake Hollow garage. The basis for defense counsel’s objection was that these were “other bad ac ts” not covered by the Bill of Particulars. Overruling the mo tion for a m istrial, the cou rt stated that the charges could be defined specifically enough to avoid any jury confusion.

Same ra Zavaro , a forensic scientist with the TBI, testified that the fitted bottom sheet from the victim’s bed teste d positive for blood and semen. She further testified that after DNA testing on the bed sheet, Defendant could not be excluded as the contributo r of the spe rm on th e victim’s b ed she et.

Defendant testified and denied that he ha d mo lested or had sex with his stepdaug hter.

The jury found Defend ant guilty of four counts o f aggravated se xual battery and four counts of rape of a child. As reflected in the judgment form, the trial court changed one of the child rape convictions (Count Three) to aggravated rape because the State w as no t able to estab lish tha t it occurred after July 1, 1992, the

-7-effective date of the “rape of a child” statute . See Tenn. Code Ann. § 39-13-522; State v. Case, 884 S.W .2d 146, 147 (Tenn. Crim . App. 1994 ).

I. Admissibility and Effect of Certain Testimony

Defendant argues in this issue that the “State was allowed, over obje ction, to introduce irrelevant prejudicial uncharged conduct.” Specifically, Defendant contends that the victim was allowed to testify about an incident that was time-barred by the statute of limitations. Defendant asserts that the count of the presentment charging this offense had already been dismis sed. H e also conte sts the victim’s testimony that Defendant “whipped her hard” and that he sexually assaulted her “four or five times” in the garage at the Snake Hollow residence. Finally, he argues that it was improper for the victim’s mother to testify that Defendant had threate ned to kill her and to hurt the vic tim.

First, Defendant conte nds th at the vic tim was allowed to testify to an allegation of aggravated sexual battery tha t was dism issed as being tim e-barred by the statu te of limitations. This incident allegedly occurred in 1987 when the victim was about five years old . The victim testified that Defendant took her to the barn to feed the cats, and th ere he remo ved he r pantie s and fondle d her. F irst of all, Defendant has waived this claimed error on appeal because he did not enter a contemporaneous objection to the testimony. Tenn . R. App . P. 36(a); State v. Killebrew, 760 S.W.2d 228, 235 (T enn. C rim. App .), perm. to appeal denied (Tenn. 1988). However, even if this issue is addresse d, it is without merit. The record does not indicate what happened to this particular count, so we cannot say whether this count was dismissed or severed. There should be no uncerta inty regard ing the sta tus of a

-8-count of a presentment, and it should be noted that it is the responsibility of the appellant to pres ent an adeq uate re cord fo r review on ap peal. R egard less, th is charge would n ot be time -barred, as Tennessee Code Annotated section 40-2-101(d) and (e) which became effective in 1985, is a pplicable to this cha rge. See Morgan v. State, 847 S.W .2d 538 , 540 (Tenn. Crim . App. 1992 ) (citing 1985 Acts, ch. 478, § 21 ). This sta tute states that prosecution for a ggravated se xual battery, among other offenses, had to commence no later than the date the child attains the age of majority or within four (4) years after the commission of the offense, whic hever occurs la ter. Tenn . Code Ann. § 4 0-2-101 (d). The refore, pro secution would have had to commence in 1991 or before the victim reached the age of 18. In the instant case, commencement of prosecution for this offense occurred in 1997 at which time the victim was only 14 or 15 years old.

Second, Defendant has also waived any objection to the victim’s testimony that Defendant took her to the Snake Hollow garage and sexually battered her “four or five times” because Defe ndan t again mad e no c ontem poran eous objec tion to th is testimony. Tenn . R. App . P. 36(a); Killebrew, 760 S.W.2d at 235. At the conclusion of the victim’s testimon y on direct exam ination , defen se co unse l did ob ject to th is statement and a sked for a m istrial. The court said that the charges could be defined spec ifically enough to avoid any jury confusion. Th e trial court did give a jury instruction explaining the limited purpose of the evidence and explained that any evidence that Defendant had committed a crime or crimes other than those charged could not be considered to prove his disposition to commit the charged crimes. The jury is deemed to have followed the court’s instruction, and we find the instruction sufficient to c ure any p rejudice to Defen dant. See State v. Harris , 839 S.W.2d 54, 72 (Te nn. 199 2).

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Next, Defenda nt did m ake a conte mpo raneo us ob jection to the vic tim’s testimony that she was afraid of Defendant because he “whipped her hard.” In the presence of the jury, defense counsel asked for an instruction concerning the testimony about the whipping, an d the court instructed that “the jury should disreg ard that and not consider it for any p urpose.” Th e jury is presum ed to have followed the trial court’s instru ction. Id. Moreov er, this tes timony by the witness does not “affirm atively appear to have affected the result of the trial on the merits.” Tenn. R. Crim. P. 52(a). Acco rdingly , any er ror tha t occu rred as a resu lt of this vic tim’s unsolicited statem ent was ha rmless. Te nn. R. App . P. 36(b).

Finally, Defendant states that the victim’s mother should not have been allowed to testify that Defendant had threatened to kill her and/or hurt the victim. Defendant did not mak e a contem poraneous objection . See Tenn. R . App. 36(a). In any event, we do not find this evidence to have affected the result of this tria l. Tenn . R. Crim . P. 52(a). T his issue is without m erit.

II. Verdict Forms

In his seco nd issue , Defend ant claims that the trial court’s verdict forms constituted improper commentary on the facts. The verdict forms submitted to the jury specified the eight charged crimes as follows:

[Count One] after the parties moved to Snake Hollow Road (after March, 1990) and before the parties purchased a Buick automobile (June, 1992), when the defendant and the victim, [ ], were in a re d Ford Thund erbird and were g oing to their former residence, the block house;

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[Count Two] at the Snake Hollow Road residence in the summer of 1992 during daylight, in the garage;

[Count Three] by forc ing [ ], the victim, to perfor m fella tio on [Defendant] at the home on Snake Hollow Road after June 29, 1992, the date of purchase of the Buick automobile and at the back of the Buick;

[Count Four] by the digital penetration of [the victim], which occurred in the fall of 1993 and b efore Thanksgiving Day in the defendant’s bedroom;

[Count Five] by cunnilingus on June 3, 1995 of [the victim] in her bedroom at the Snake Hollow Road residence;

[Count Six] in her [the victim’s] bedroom on Sunday, June 4, 1995;

[Count Seven] on Wednesday, June 7, 1995 at Kinser Park while [Defendant] and the victim, [ ], were w alking in the woods;

[Count Eight] at the Snake Hollow Road residence between March, 1990 and June 9, 1995 and while the defendant and the victim, [ ], were test-driving the Buick (purchased on 6-28-92) and in the garage of the defendan t’s employer.

After reviewing the ve rdict forms, we find that the trial court did not offer unneces sary comm entary on the facts a s alleged by Defe ndant. Rather, the forms conta in enough specific information to comply with the requir emen t that the Sta te elect the particu lar offense s for which conviction s were s ought. See State v. Shelton, 851 S.W.2 d 134 (T enn. 19 93); Burlison v. State, 501 S.W.2d 801 (Tenn. 1973). Since the victim did testify to m any sexu al crimes comm itted by De fendan t, the trial cou rt ensu red un anim ity in the jury’s decisio n by be ing sp ecific in the verdict forms. See Shelton, 851 S.W .2d at 137 . This issu e is withou t merit.

III. Dismissal of Count Four

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In his third issue, Defendant claims that Count Four should be dismissed because the victim’s testimony as to when the digital penetration occurred did not specify a year. De fendan t contend s that without a specific year the jury could not determine if the digital penetration was “an alleged aggravated rape or a child ra pe.” W e note that the count Defendant is contesting is Count Five in the presentment and Coun t Four on the verdict fo rm and judgm ent.

Defendant fails to cite any authority to s upport his argum ent, an d there fore this issue should b e waived . See Tenn . R. App . P. 27(a)(7 ); State v. Dickerson, 885 S.W.2d 90, 93 (T enn. C rim. App .), perm. to appeal denied (Tenn. 199 3). However, even if this iss ue is add ressed , it is without m erit.

The count in the presentment Defendant contests alleges the following:

[Defen dant], between ___, 1992, and ___, 1993, unlaw fully committed the offense of rape of a child by know ingly engaging in unlawful sexual penetration of [victim], a child less that thirteen years of age, by sticking his finger in side h er vag ina; a c lass A felony in violation of T.C.A. 39-13-522, and against the peace and dignity of the State of Tennessee. Prior to July 1, 1992, the unlawful sexual penetration of a victim less than

thirteen (13) years of age wa s design ated as aggrava ted rape . Tenn. C ode An n. § 39-13-502 (a)(4)(1991). That po rtion of the a ggravate d rape s tatute referring to victims under thirteen (13 ) years of age was th en “mo ved to § 3 9-13-52 2.” Sentencing Commission Comments, Tenn. Code Ann. § 39-13 -502. In fairn ess to Defen dant, panels of this Court have indicated that it was codified “as a separate, new crime” at Tenn. Code Ann. § 39-13-522. See State v. Banes, 874 S.W.2d 73, 78, n.4 (Te nn. Crim . App. 19 93), perm . to app eal denied (Tenn. 1994). How ever, the elements of aggravated rape of a child less than 13 years of age ar e identica l to

-12-the elements of rape of a child. The classification of the offense as an A felony remained the sam e. See Tenn. Code Ann. §§ 39-13-502(b) and -522(b). The only significant difference is that each sentence for convictions of an offense occurring on or after July 1, 1992, must b e served undim inished b y senten cing cred its. See Tenn. Code A nn. § 39-13-5 23. The un diminished s entencing p rovision of rape of a child requires a showing that the penetration occurred on or after July 1, 1992, before one can be convicted of the offense designated as rap e of a child. If there is insufficient proof that the offense occurred on or after Ju ly 1, 199 2, one could only be convicted of agg ravated rape. T his situation is akin to one where a sentence for a spec ified crim e incre ases after a c ertain d ate. U nder s uch c ircums tances, a person must be sentenced within the parameters of the sentence existing at the time of the offense, not the tim e of sentencing.

At trial, the victim’s testimony did not specify when the offense occurred. Testimony in regards to this count was as follows:

State: I’ve asked the co urt officer to pass to you Exhib it #16. Would you look at that, please? Do you recogn ize that?

Victim: Yes.

State: Wh ere was that jar of Va seline ke pt?

Victim: On my m other’s dresse r.

...

State: Did you ever have occasion to be in [Defendant’s] bedroom?

Victim: Yes.

State: Did you ever have occasion to . . . . excuse me, let me ask the question this way. On an occa sion th at you w ere in h is bedro om d id it involve Exhibit #16, that jar of Vaseline?

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Victim: Yes.

State: Do you remember when that occurred?

Victim: I know it was in the w inter.

State: Do you know whether or not it was before or after Thank sgiving Day?

Victim: I believe it was before.

State: Do you know what year it was?

Victim: I cann ot reca ll.

State: W a s it there at the Snake Hollow Road residence?

Victim: Yes.

State: [D]o you remember whether it was before or after the purchase of the Buick?

Victim: I don’t re call.

State: W ould you tell the ladies and gentlemen of the jury what happened on the occasion involving the jar of Vaseline?

Victim: It was in his bedroom and my mother’s room and [Defendant] had took [sic] the jar of Vaseline and pu t it on his finger and pulled my pants down and he stuck his finger in my vagina and I to ld him that it hurt me. He pulled his finger back out and told me to get up.

State: Did you tell your mo ther abo ut that?

Victim: No, I did n ot.

The foregoing testimony demonstrates that the State did not establish the exact date that th is particular in cident oc curred. The only tim e fram e the vic tim could testify to was tha t it occurred after they m oved to the Snake Hollow residence which was earlier established as being sometime in the year 1990. The count in the presentment dealing with the digital rape states that Defendant stuck his finger

-14-inside the victim’s vagina “between ___, 1992, and ___, 1993.” The Bill of Particulars states that the single inc ident of digital penetration occurred be fore Thanksgiving Day of 1993. However, contrary to the State’s argument, this is not enough to satisfy the State’s burden of proving that the incide nt occ urred after Ju ly 1, 1992, in o rder to establish rape o f a child. These d ocume nts were not admitted into evidence and it was the State’s burden to clea rly establish through evidence at trial when the alleged incident occurred.

Howeve r, to dismiss this count altogether would be an extreme misplacement of form over substance. The act of “unlawful sexual penetration of a victim ” who “ is less than thirteen (13) yea rs of age,” did not ce ase being a crime at midnight on June 30, 199 2; it merely ceased being codified at Tenn. Code Ann. § 39-13-502. See Tenn. Code Ann. § 39-13-522(a). Again, the elements of aggravated rape and rape of a child are the same and the State did prove beyond a reasonable doubt Defe ndan t’s guilt of the unlawful sexual pene tration o f a child less than thirteen yea rs of age. However, since the State did not clearly establish when the incident occurred, we hold that Defenda nt is guilty of ag gravated rape inste ad of rap e of a child in Coun t Four (C ount Five of the pres entme nt). The judgment must be modified acc ordingly.

IV. Excluded Testimony

In this issue, Defendant contends that he was prevented from presenting a defense when the trial court excluded testimony that the victim had contact with “sex toys,” that she a ppeare d to eng age in se xual con duct with h er brothe r, that her

-15-brother had raped a cousin, and that she had knowledge of the male anatomy and physiology.

Evidence of a victim ’s sexual behavior other than the sexual act or acts at issue is governe d by Te nness ee Ru le of Evide nce 41 2. Rule 4 12 doe s apply to cases involving the rape of a child. See State v. Terrell Dion Cowans, C.C.A. No. 02C01-9610-CC-00359, Henry County (Tenn. Crim. App., Jackson, Nov. 20, 1997), perm. to appeal denied (Tenn. 1998). The rule limits the admis sibility of evidence of specific ac ts of sexual conduct of th e victim , as we ll as evid ence of the vic tim’s sexual reputation.

At issue is the provision which may permit the admission of sexual behavior of the victim with pers ons other than Defendant “to prove or explain the source of semen, injury, disea se, or knowledge of sexual matters.” Tenn. R. Evid. 412(c)(4)(ii). “Knowledge of sexual matters” is often soug ht to be introdu ced in child sexual abuse cases. Where the State’s proof suggests that the child victim’s knowledge of sexual ma tters resulted solely from the incident with the defendant, the defendant is permitted to show that the victim acquired the familiarity from sexual activity with third persons. Advisory Commission Comments, Tenn. R. Evid. 412.

Howeve r, before evidence regarding a victim’s “knowledge of sexual matters” is admissible, the trial court must first determine that the probative value of the evidence outweig hs its unfa ir prejudice to the victim . Tenn. R . Evid. 412 (d)(4). In holding that the evidence was inadmissible, the court stated the following:

None of that is admissible except . . . I guess mayb e unless I should have said, specific instances of con duct. So what you have to first have is a spec ific instance of a

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victim’s sexual beha vior, is it ad miss ible unless submitted in accordance with such and such?

Consent is not an iss ue. If it were someone other than the accused it can on ly be used to rebut or explain scientific or medical evidenc e which is not the ca se. To prove or explain the source of semen, injury, disease or knowledge of sexual matters, which is not the case. Or to prove consent, which is not an issue.

...

Somebody playing with . . . I don’t think playing with a vibrator would ever be admissible, that I can conceive. Seeing someone attempting to have sex would not be admissible.

The only evidence that I ha ve eve r seen that co uld come in and I think if you read a ll of 412 it’s clear, is . . . have you read the definition of sexual behavior? It means sexual activity of the alleged victim other than the sexual act that’s th e issue in the case. Sexual activity is defined, isn’t it? Let’s loo k at it.

The definition of sexual behavior is sexual activity of som eone other th an the defen dant, a nd to b e adm issible it has to be a specific instance of a victim of sexual behavior for the purpose of proving consent which is not an issue, medical evidence which is not an issue, behavior of the acc used w hich is no t an issue . . . .

The only thing I’ve seen a court let in are where one said, ‘Yes, I had consensu al sex with her,’ and the n you’ve got to reme mber it sa ys . . . for knowledge of sexual, the fact that someone may have attempted to have sex with the victim or the victim may have played with a so-called, quote, sex toy, does not impute knowledge of copulation. I don’t believe any co urt would stretch it that far.

...

I just don’t believe under any stretch of the imagination that any cou rt would e ver allow tho se sub mission s to come in under Rule 412.

By com men ts the tria l court m ade in holdin g the e videnc e inad miss ible, it is apparent that the court below found the incide nts had no probative value. We agree with the trial court’s conclusion. A decision regarding Rule 412 will not be

-17-overturned absent a showing that the determ ination was a n abu se of th e trial co urt’s discretion. See State v. Sheline, 955 S.W .2d 42, 46 (Tenn . 1997). Defendant has failed to show how denying the evidence was an abuse of the trial court’s discretion. This issu e is withou t merit.

V. Admissibility of Dr. Reardon’s Testimony

In this issu e, De fenda nt argu es tha t the trial court erred in allowing D r. Reardon to testify as to his impression concerning penetration and in allowing the introduction of Exhibit 30 which was Dr. Reardon’s complete examination of the victim.

Defendant fails to cite any au thority in supp ort of this issue a nd it sh ould therefore be treate d as wa ived. Ten n. R. Ap p. P. 27(a )(7); Dickerson, 885 S.W.2d at 92-93; see also Killebrew, 760 S.W.2d at 231-32. In add ition, the record revea ls that Defenda nt did not ma ke a contem poraneous objec tion to the testimon y of Dr. Reardon or any objection to the admission of Exhibit 30 and this issue should be waived fo r these re asons as well. Te nn. R. A pp. P. 36 (a).

Defendant’s motion in limine reque sted, in pertinent part, that the trial court redact “[a]ny o ral state men t mad e by the child in this cas e to ph ysician s that is [sic]

-18-not for purposes of diagnosis and trea tment.” It should be noted that the rec ord contains no Ord er dispos ing of this m otion.

Howeve r, even addressed on the merits, Defendant’s argument must fail. On direct examin ation, Dr. R eardon testified that he took a medical history from the victim, that the history w as im portan t for pur pose s of dia gnos is and treatment, and that the victim had told him of three specific incidents of penetration. Dr. Reardon said that his physical examination led him to conclude that partial penetration by a male penis of th e victim was possible and was consistent with the history that the victim gav e him. T his issue is without m erit.

VI. Sentencing

In this issue, Defendant argues that the court erred in finding three enhancement factors, finding no mitigating factors, and in ordering the sentences on the four rape co nvictions to be serve d consecu tively.

When an accused challenges the length, range, or the manner of service of a senten ce, this cou rt has a du ty to condu ct a de novo review of th e sente nce with a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-3 5-401(d). Th is presump tion is "conditioned up on the affirmative showing in the record that the trial court considered the sentencing principles and all relevant fac ts and circ umsta nces." State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

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In conducting a de novo review of a sentence, this Court must consider the evidence adduced at trial and the sentencing hearing, the presentence report, the principles of sentencing, the arguments of counsel relative to sentencing alternatives, the natur e of the offe nse, an d the de fendan t’s potential for rehabilitation. Tenn . Code Ann. § 4 0-35-21 0; State v. Parker, 932 S.W.2d 945, 955-56 (Tenn . Crim App . 1996).

If our review reflects that the trial court followed the statutory sentencing procedure, imposed a lawful sentence after having given due consideration and proper weight to the factors and principals set out under the sentencing law, and that the trial court's findings of fact are adequately supported by the record, then we may not modify th e sente nce eve n if we wo uld have preferred a different re sult. State v. Fletcher, 805 S.W .2d 785 , 789 (T enn. C rim. App . 1991). Upon review of the record, we find that the trial court considered the proper senten cing princ iples and stated its reasons and findings on the record. Therefore, review by this court is de novo with a presumption of correctness. However, even though trial court considered the proper sentencing principles, we hold, as specified below, that the court e rrone ously applied two en hancem ent factors and failed to consider on e mitigating factor. A. Length of Sentences

The trial court found that three enhancem ent fac tors we re app licable to all offenses for which Defendant had been convicted:

(a) The personal injuries inflicted upon the victim were particularly g reat;

(b) The offense involved a victim and was comm itted to gratify the defen dant’s de sire for plea sure or e xcitement; and

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(c) The defend ant abu sed a p osition of p rivate trust. See Tenn. C ode Ann . § 40-35-114 (6), (7) and (15).

In applying enhancement factor (6), the trial court stated the following:

Now, we’ve had no evidence in the case from psycho logists or psychiatrists about the consequences of the defendant’s criminal acts upon her, although she was very young, and the evidence was that the defendant’s abuse of her sexually began at age five. But I did observe her demeanor while she was testifying and she was very distraught throughou t her testimony, sh e cried and sobbed almost throughou t her testimony. C ertainly the observation this Court would make, in looking at her as compared with other victims of similar age who h ave testified in this court in other cases over a period of time, is that she obviously suffers greatly from the things that have been d one to h er and I thin k that #6 is , in fact, an enhancement factor in the case.

The term “personal injury” as used in enhancement factor (6) is broad enough to embrace the emotional injuries and psychological scarrin g sus tained by the v ictim of a sexua l offense. See e.g., State v. Melvin , 913 S.W.2d 195, 203 (Tenn. Crim. App.), perm. to appeal denied (Tenn. 1995); State v. Smith, 891 S.W.2d 922, 930 (Tenn. Crim. A pp.), perm. to appeal denied (Ten n. 199 4). Ho weve r, befor e this factor may be used to enhan ce a sen tence w ithin the ap propriate range, th e State must establish that the emo tional in juries a nd ps ycholo gical sc arring are “pa rticularly great.” Tenn . Code Ann. § 4 0-35-11 4(6); see State v. Lorenzo Puente Salazar, C.C.A. No. 02-C-0 1-9105-CR-00098, Shelby County (Tenn. Crim. App., Jackson, Jan. 15, 1992). In Salazar, this Court held the following:

Clearly, rape is injurious per se to the body and mind of the victim. In this regard, the legislature has seen fit to enhance the offe nse to aggra vated rape if a child is involved. In consideration of this auto matic en hance ment, it is questionable that a trial court is entitled to rely so lely upon the ag e of the victim a s a ba sis to find that the

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mental traum a is ‘particularly gr eat.’ Furthe r, the re cord is totally devoid o f any evidence from which the trial court could determine that the mental disturbance shown in the record was greater than, less than, or equivalent to that which is o rdinarily involve d with this se rious offen se.

Id. at 7-8.

The Tennessee Supreme Court in State v. Kissinger, 922 S.W.2d 482, 487-88 (Tenn. 1996), loo ked for m edical or p sycholo gical proo f to determine if the victim ’s injuries were “ particu larly great.” Finding none, the court determined that application of enhancement factor (6) was inappropriate.

In the instant case, the State did not prese nt any e videnc e as to the ch ild’s psychological injuries. No psychiatr ists or psychologists testified as to any emotional scarring the victim h ad su ffered, and n o evide nce w as pre sente d that th e victim required couns eling for he r emotio nal injuries. But see contra, State v. John Claude Wells, III, C.C.A. No. 0 1-C-01-95 05-CR-00146 , Davidso n Cou nty (Ten n. Crim. A pp., Nashville, June 6 , 1997), perm. to appeal denied (Tenn. 1998 ); State v. Robert J. Burton, Sr., C.C.A. No. 02C01-9507-CC-00193, Weakley County (Tenn. Crim. A pp., Jackson, June 1 0, 1996 ), perm. to appeal denied (Tenn. 1996). The evidence of physical injury to the victim in this case was a partial tear to her hymen and her testimony that she bled for two days follow ing pen etration. But see contra, State v. James Lloyd Julian, II, C.C.A. No. 03C01-9511-CV-00371, Loudon County (Tenn. Crim. App., K noxville , July 24, 199 7), perm. to appeal denied (Tenn . 1998); State v. Roy L. Sherrod, C.C.A. No. 02-C-01-9510-CR-00331, Shelby County (Tenn. Crim. App., Jackson, July 26, 19 96), perm. to appeal denied (Tenn. 199 7). Accordingly, we find tha t althou gh the victim certain ly suffered injuries, those injuries were not

-22-“particu larly great” as contemplated by the statute for enhancement purposes. Therefore, enhancement factor (6) should not have been applied to any of the convictions.

Relative to enhancement factor (7), De fenda nt argu es tha t there is nothin g in the record to show that he com mitted the offens es to gratify his desire for plea sure or excitem ent. See Tenn. Code Ann. § 40-35-114(7). In applying this factor to the convictions, the trial court stated the following:

The character of rape has many faces. It can be one of oppression, of male dominance, of punishment, or it can be for plea sure a nd exc iteme nt. I think the evid ence in this case clearly sho w that it was to gratify th e defe ndan t’s desire for plea sure o r excitement, and I think that distinguishes this case in an enhancement way, and so I believe that is a valid enhancement consideration.

Initially, we note that a necessary element of aggravated sexual battery as charged is sexual contact which is defined as the intentional touching of an intima te part or the clothing over such intimate part "for the purpose o f sexual arousal or gratification." Tenn. C ode Ann . § 39-13-501(6); see Kissinger, 922 S.W.2d at 489-90 (Ten n. 199 6). Be caus e a fac tor can not be applie d if it is also an essential element of the o ffense as cha rged in the ind ictme nt, enh ance men t factor (7 ) is inapplica ble to the fo ur aggra vated se xual batte ry conviction s.

Howeve r, factor (7) is not an essential element of aggravated rape or rape of a child and m ay be co nsidere d as an approp riate enh ancem ent factor. See State v. Adams, 864 S.W.2d 31, 34-35 (Tenn. 1993). In Kissinger, our suprem e court recogn ized the d ifficulties in esta blishing fac tor (7):

Enhancement factor (7), un like mos t of the other sentencing factors, calls into que stion a defen dant's reasons for comm itting a crime. Hum an motivation is a

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tangled web, always complex a nd multifaceted . To prove defen dant's motive s will always be a difficult task. But the legislature, in its wisdom, has placed that obligation on the state wh en the sta te seeks an enh anced senten ce.

922 S.W .2d at 491 .

W e are of the opinio n that the S tate me t its burden of proof in this case that the rape wa s sexua lly motivated to gratify De fendan t’s desire for pleasure or excitem ent. There were several instances of sexual conduct by Defendant with the victim occurring on different occasions. Defendant penetrated the victim by inserting his penis in the victim's vagina, the victim performed fellatio on Defendant, and Defendant performed cunnilingus on the victim. The victim testified as follows about one incid ent:

[Defen dant] pulled down my shorts and panties and he told me tha t he had to check and se e if I had been with any boys . Then h e stuck h is tongue in my vag ina.

...

[A]fter he got done he told me, he said, ‘N o, you h aven’t been with any boys,’ and then he said, ‘[victim ], I’m going to do wha t I usually do ,’ and th en he started rubbing my vagina and masturbating and then he ejaculated on me and the n he wip ed it off with a h andke rchief.

In regards to the incident of penile penetration, the victim testified that she asked the victim to stop and he asked her, “Do you want me to hurry up and get done,” and she told him th at she did .

Although orgasm is insufficient, in and of itself, to establish that Defendant committed rape to gratify his desire for p leasu re or ex citem ent, wh en tha t fact is viewed along with other circumstances in the case, we find this factor to be appropriate. See Kissinger, 922 S.W .2d at 490 -91. De spite Defendant's denial that he committed the offenses, the evidence supports the application of factor (7) by a

-24-preponderance of the evidenc e. See State v. Carter, 908 S.W.2d 410, 413 (Tenn. Crim. App.), perm. to appeal denied (Tenn. 1995) (preponderance of the evidence standard applies to factual de terminations n ecessary for en hancem ent factor). Furthermore, the jury con cluded beyond a reaso nable d oubt that the defend ant's intentional touching was for the purpose of sexual arousal or gratification to convict the defendant of four counts of aggravated sexual battery. Under these circum stances, we hold that the record supp orts the applic ation o f factor (7 ) in senten cing De fendan t for the agg ravated ra pe and rape of a child con victions.

The court a lso found as an enhancement factor the Defendant abused a position of private trust. Tenn. Code Ann. § 40-35-114(15). We note that Defendant does not specifically contest the applic ation o f this fac tor on a ppea l. We believe this enhancement factor c learly ap plies, a nd ob viously the trial court ga ve it great w eight. Defendant’s status as stepfather while living with the victim’s mother is a sufficient basis for senten ce enh ancem ent und er factor (1 5). Adams, 864 S.W.2d at 34. A more serious violation of private trust is hard to imagine. Accordingly, we find that this enhancement factor appropriate for all convictions.

In conclusion, we find that enhancement factor (6) is ina pplicable to all eight convictions, enha ncem ent fac tor (7) is o nly applicable to the four rape convictions, and enhancement factor (15) is applicable to all eight convictions.

With respect to mitigation, Defendant merely mentions that a few mitigating factors shou ld have been applie d whic h inclu de no prior crim inal rec ord, his employment record , his limited education , and his financial ass istance to his fam ily. The pre-sentence report reveals that a search was conducted for prior criminal

-25-offenses in Greene C ounty and n one were found. We find the absence of a criminal record to be applicable in mitigation, although little weight should be afforded it. This Court has also held that where Defendant was convicted of sex offenses involving minors, favorable consideration based upon his family c ontribu tions a nd wo rk ethic was not approp riate. See State v. McKnight, 900 S.W.2d 36 (Tenn. Crim. App. 1994), perm. to appeal denied (Tenn. 1995). Further, we find no evidence in the record as to how his limited education affected his actions against his stepdaughter in this case , so this facto r will not be a pplied.

In summary, we believe one mitigating factor, Defendant's lack of a prior criminal record, should be considered relative to the length of the sentences imposed. See Tenn. Code Ann. § 40-35-113(13). However, although this factor shou ld be considered, we do not believe it is entitled to significant weight in the context o f this case.

Even though the trial court inappropriately applied one enhancement factor as to the aggravated sexual battery convictions and one enhancement factor as to a ll convictions and failed to app ly one mitigating facto r, we find that the proof su pports a twelve (12 ) year sen tence for each aggravated sexual battery conviction and a twenty-five (25) year se ntenc e for ea ch ag grava ted rap e and rape o f a child conviction. Defen dant is not en titled to a reduc tion in s enten ce m erely because we conclude on appeal that the trial court incorrectly applied sentencing and mitigating factors. State v. Hayes, 899 S.W.2d 175 S.W.2d 175, 186-87 (Tenn. Crim . App.), perm. to appeal denied (Tenn . 1995).

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In Hayes, a pane l of this Cou rt stated the following:

[E]ven if we determine that fewer factors should apply than used by the tr ial cou rt, this does n ot mea n that the le ngth of the sente nce is au tomatica lly reduced . That is, if the same degree of culpability and negative circumstances relate to the remaining applicable factors, the original enhan ceme nt may s till be appro priate.

Id. Such is the case here. The defendant was charged with the care and control of the victim, yet he abuse d that pos ition of trust. W e find the length of the sentences imposed by the trial court to be appropriate. B. Consecutive Sentences

Next, the defendant contends that the trial court erroneously imposed consecu tive sentences. In imposing consecutive sentences to the aggravated rape and rape of a child convictions, the court stated the following:

The defendant qualifies for consecutive sentencing under Tennessee Code Anno tated [s ection ] 40-35 -115 w hich was in effect when all of these offenses are charged, and it says this, that the defend ant can be sen tenced to consecu tive sentences for convic tions if th e defe ndan t is convicted of two or more , and here it’s eight statuto ry offenses involving se xual abu se of a m inor, with consideration of the aggravating circumstances arising from the relation ship b etwee n the d efend ant an d victim or victims since she was five, time span of defe ndan t’s undetected sexual activity, the nature and scope of the sexual acts pervasive and extent of residu al, physical and mental damage to the victim which seems significant. In addition to that the child rape statue now would bolster that.

...

The right thing for the right reasons seems to me to be this, that this de fendan t, for the thing s that he’s done to this child over a long period of time, should not be in a position to be re lease d from custo dy. Th at’s ha rsh, tha t’s hard for m e, but I think it’s th e truth . . . .

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In this cas e, De fenda nt was convic ted of a total of e ight offe nses involving sexual abuse of his stepdaughter. Defendant's conduct occurred over a long period of time and the nature and scope of the defendant's sexual acts were extensive. Although we did not find there to be “pa rticularly great” injury to th e victim, we certain ly believe that there was enough physical and emotional damage to justify the application of Tenn. Code Ann. § 40-35-115(b)(5). However, a finding of Tenn. Code Ann. § 40-35-115(5) does not end our inquiry into the validity of consecutive sentencing. Instead, T enn. C ode An n. § 40-3 5-115 re quires fu rther review of whether consecutive sentences are necessary to protect the public from the defendant’s possible future criminal conduct and whether the aggregate sentence is reaso nably related to the severity of the defendant’s present offenses. Sentencing Commission Comments, Tenn. Code Ann. § 40-3 5-115; Te nn. R. Crim . P. 32(c)(1); see also State v. Wilkerson, 905 S.W .2d 933 (Te nn. 1995). Fro m our de novo review of the record, we conclude that the trial court did not err in imposing consecu tive sentences . The trial court found that the confineme nt was nece ssary to protect the public and the victim from future criminal conduct of Defendant. Furthermore, because the progressive egregious nature of Defendant’s eight convictions occu rred ov er a sig nifican t span of time with his own stepd aughter, the consecu tive senten ces are reason ably related to the seve rity of the crimes. Defendant has failed to carry his burden to show that the trial court’s sentence was improp er. This iss ue is witho ut merit.

Conclusion

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The judgm ent of C ount F our is modified to reflect a conviction of aggravated rape rather than rape of a child. In all other aspects, the judgments are affirmed.

____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ GARY R. WA DE, Presiding Judge

___________________________________ DAVID H. WELLES , Judge

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