State of Tennessee v. Roger Glenn Dile

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs May 13, 2009

STATE OF TENNESSEE v. ROGER GLENN DILE

Direct Appeal from the Criminal Court for Davidson County

No. 2006-C-2490 Cheryl A. Blackburn, Judge

No. M2008-00389-CCA-R3-CD - Filed September 24, 2009

A Davidson County jury convicted the Defendant, Roger Glenn Dile, of rape of a child, a Class A

felony; attempted rape of a child, a Class B felony; and two counts of aggravated sexual battery, a

Class B felony. The trial court imposed a total effective sentence of thirty-two years to be served

at 100% as a child rapist. The Defendant appeals, contending: (1) the evidence, as a matter of law,

was insufficient to support his convictions because the proof at trial fatally varied from his

indictments; (2) the trial court erred when it failed to merge one of his aggravated sexual battery

convictions into his rape of a child conviction; and (3) the trial court erred when it set the length and

alignment of his sentences. After a thorough review of the record and relevant authorities, we affirm

the judgments of the trial court.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which DAVID H. WELLES and

ALAN E. GLENN , JJ., joined.

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

Tennessee, for the Appellant, Roger Glenn Dile.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Leslie

E. Price, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; J.W. Hupp

Assistant District Attorney General, for the Appellee, the State of Tennessee.

OPINION

I. Facts

A. Indictment

In September 2006, a Davidson County grand jury issued an indictment charging that the

Defendant “on a date between April, 2005 and May, 2005,” committed two counts of rape of a child,

one count of attempted rape of a child, one count of aggravated sexual battery, and two counts of

providing pornography to a minor. After the trial court determined that the counts charging the

Defendant with providing pornography to a minor were filed outside of the applicable limitations

period, those counts were removed from the indictment. The four remaining counts of the

indictment remained unchanged.

During a pre-trial hearing, the State informed the trial court and defense counsel that the date

of the charged offenses may have been earlier than the date set out in the indictment. The State said

the indictment was based on information gathered by the Department of Children’s Services, which

had interviewed the victim’s mother but not the victim. According to the State, the victim’s mother,

Sandy Delk, was not a reliable witness and, as a result, would not be relied upon at trial to establish

the date of the conduct. Further, all adult witnesses likely to know relevant dates were

uncooperative. The victim, who was seven at the time of the offenses, recalled only that the offenses

occurred in two different houses, located on Oneida Street and Marshall Street. The victim did not

know the dates on which she moved into either house. She could recall only that she lived briefly

in the Oneida Street house and for six weeks to two months in the Marshall Street house.

The State explained that, due to the victim’s uncertainty and the lack of a reliable adult

witness, the proof showed only that the various instances of conduct occurred between December

2004 and April 2005. As a result, the State would be unable to prove that the offenses occurred

specifically between April and May of 2005, as the indictment alleged. In order to give defense

counsel adequate time to prepare for the State’s proof that the alleged conduct occurred between

December 2004 and May 2005, the trial court continued the Defendant’s trial for six months.

Ultimately, the trial took place in September 2007, nine months after the pre-trial hearing. The State

did not amend the indictments against the Defendant to reflect an earlier offense date.

B. Jury Trial

At trial, the State presented the following proof: K.D.,1 who was nine years old at the time

of trial, testified she lived with her paternal grandmother, her six-year-old sister, and her three-year-

old brother at the time of trial. K.D. said she no longer saw her mother, Sandy Delk, with any

frequency.

Upon being shown a picture of a house on Oneida Street, K.D. said she lived in the house

with her maternal grandmother, whose married name is Debbie Delk Dile (hereinafter referred to as

“Dile”); the Defendant, who was her grandmother’s boyfriend and is now her husband; and her baby

cousin “Bryant.” Upon being shown a picture of a house on Marshall Street, she identified it as the

house where she was staying when police interviewed her on May 15, 2005, about the conduct at

issue. She said that, at the time, her younger brother, mother, and younger sister lived at the

Marshall Street house. She said her grandmother and the Defendant lived at the Marshall Street

house “half the time.” She testified she began staying at the Marshall Street house only shortly

1

Given the nature of the crimes, we will refer to the victim by her initials to protect her privacy.

2

before the May 15 interview. She said that, after the May 15 interview, she never lived with her

grandmother and the Defendant again.

Recalling the period in which she lived in the Oneida Street house with Dile and the

Defendant, she said the Defendant took care of her when her grandmother, Dile, went to work. The

first incident of “secret” activity between herself and the Defendant occurred when Dile was working

and the Defendant was watching K.D. K.D., fully clothed, went into Dile’s room to retrieve a pair

of pants. While there, the Defendant entered and told her to get on the bed. The defendant then

removed K.D.’s pants and underwear, and began to “lick” K.D.’s “private,” while he moved his hand

in and out of her vagina and around her anus. The Defendant instructed K.D. to tell no one of the

sexual contact. K.D. said other “secret” conduct followed this first contact.

K.D. testified that, while she was bathing in a bath tub at the Oneida house, the Defendant,

already undressed, entered the bathroom, lowered himself into the bath tub, and began to wash

K.D.’s vagina using his hand and a rag. She testified that, while they were in the bath tub, the

Defendant placed his hand both inside and outside her vagina, and he rubbed her breasts. She

testified that she was old enough to bathe herself and that she had not asked the Defendant to help

her bathe.

K.D. next testified that, during the Spring, while she still lived in the Oneida house, she and

the Defendant dropped off Dile at a tanning salon. The Defendant and K.D. waited in the cab of the

Defendant’s El Camino truck while Dile tanned. After several minutes, the Defendant unzipped his

pants and placed his penis in K.D.’s view. The Defendant then pushed K.D.’s head toward his penis,

instructing her to “suck it.” K.D. refused, but the Defendant continued to urge her to proceed. After

a few minutes of his requests, K.D. told the Defendant she would scream if he continued to push her

head toward his penis. At that point, Dile emerged from the tanning salon, and the Defendant

reassembled himself before she reached the truck. The Defendant instructed K.D. again to not tell

anyone what he asked her to do.

K.D. recalled that, at some point, she began staying at the Marshall house, and on the third

day she stayed at the Marshall house, her family began loading a U-Haul truck in order to move some

family members into a newly rented home. On this day, K.D. told a relative she identified as “Aunt

Kim” about the Defendant’s behavior. After this, Detective Keith Sutherland came to the Marshall

house and interviewed K.D. K.D. did not tell Dile directly about the Defendant’s conduct until after

she was removed from the Marshall home. According to K.D., however, Dile “did not want to

believe” her and admonished her to “stop telling stories.”

On cross-examination, K.D. explained she moved in with Dile and the Defendant because

a judge determined Dile and K.D.’s mother should share custody of K.D. She said the Defendant’s

conduct occurred during Spring, at various times of the day and night. She explained she ordinarily

would have been attending school during this time, but Dile failed to enroll K.D. in school when she

began living with Dile. K.D. said her brother’s first birthday, which fell on April 15, 2005, occurred

in the middle of the period during which the Defendant abused her.

3

K.D. estimated she, the Defendant, and Dile moved from the Oneida house to the house on

Marshall Street approximately three weeks after the Defendant began making sexual contact with

her. On the third day she lived at the house on Marshall Street, she told her aunt about the

Defendant’s behavior. K.D. confirmed that the Department of Child Services (“DCS”) removed her

from the Marshall house on the same day she told her aunt about the Defendant’s conduct. As a

result, she never moved back in with the Defendant and Dile. She said she did not see Dile again

until Dile’s wedding to the Defendant and, on that occasion, she spoke directly with Dile about the

Defendant’s conduct for the first time. K.D. said no one else was present during her discussion with

Dile. She testified she did not know anyone named “Crystal Gayle Lindsley” and did not remember

anyone by that name being present at Dile and the Defendant’s wedding.

K.D. confirmed she had a videotaped conversation with Dawn Harper, a forensic interviewer

with the Child Advocacy Center. Defense counsel asked K.D. whether she remembered making

several statements from the conversation with Dawn Harper. K.D. recalled telling Harper about the

Defendant asking her to suck his penis in his truck outside the tanning salon. She also recalled

telling Harper that a second incident between herself and the Defendant occurred, though she was

not sure exactly what she told Harper had occurred. She said that, while she and her sister were still

living at the Oneida house, she and the Defendant lay in bed watching “The Proudest Family” on the

Disney Channel. She testified that, while they lay together, the Defendant “touched” her in a way

she could not specifically recall. Her sister, who had been in the kitchen, walked into the room and

asked K.D. what the Defendant was doing, to which K.D. replied that she did not know.

K.D. did not remember telling Harper that the Defendant had told her to “suck” his penis

while they lay watching the Disney Channel. She also did not recall saying her sister told their

mother she had seen the Defendant touch K.D. Similarly, she did not recall telling Harper her sister

then told her mother, who told her father, who then assaulted the Defendant. She testified she did

not tell her mother about the Defendant’s conduct before police interviewed K.D. on May 15, 2005.

On re-direct examination, K.D. testified that neither her mother nor her father was present

in the Oneida house the day the Defendant touched her while they lay watching the Disney Channel.

She recalled describing the Defendant’s penis as “pink” when she was telling Harper about the

Defendant asking her to perform oral sex in his truck outside the tanning salon. K.D. testified her

father never “came around.” She denied both wishing she had told her mother about the abuse and

wishing her father had beaten up the Defendant.

Detective Keith Sutherland testified that, at the time of the conduct at issue, he was assigned

to the Sex Crime Section of the Metropolitan Nashville Police Department. On May 15, 2005,

Detective Sutherland was dispatched to the Marshall Street house to investigate a report of a sexual

assault. When he arrived, he found the Defendant, an unidentified adult male, and an unidentified

male child loading furniture onto a U-Haul truck. He approached the house and introduced himself

to several members of K.D.’s family, including K.D.’s mother, Sandy Delk. K.D. then led the

detective up a flight of stairs to the second floor of the home. As they ascended, the detective asked

K.D. whether she wanted to share something with him, to which she replied, “He’s been touching

4

me all over my body.” She identified the man who touched her as “Pepa,” her maternal

grandmother’s boyfriend, whom her grandmother later married.

Detective Sutherland described K.D. as a “quiet, shy child” who had “no issue” speaking

with him about the Defendant’s behavior. Because he had not received training to interview child

sex abuse victims, he contacted DCS who dispatched a representative to interview K.D. Also,

because Sex Crime policy was to forego a forensic physical examination if seventy-two hours had

passed since the sexual assault occurred, he did not seek a medical exam of K.D.

While at the Marshall Street house, reference was made to an “Aunt Kim,” but no one could

supply the detective with an address or contact information for “Aunt Kim.” In the days following

his May 15, 2005, visit to the Marshall Street home, the detective continued his investigation of

K.D.’s abuse allegations. He visited the Oneida home and the tanning salon, and he tried, without

success, to locate and interview K.D.’s mother.

The detective said he watched through a video monitor while Harper interviewed K.D. He

testified that, during the interview, K.D. recalled an incident during which the Defendant sexually

penetrated her while she lay on the upper bunk of a bunk bed in her room. According to the

detective, K.D. said her sister, having witnessed the Defendant penetrate her, alerted their parents,

and K.D’s father then assaulted the Defendant. The detective agreed this confrontation could not

have occured because K.D.’s father was incarcerated during the time period of alleged abuse.

Sue Williams Burfield testified she was the supervisor of DCS field investigator Jessica

Jones Montgomery, who responded to Detective Sutherland’s report of child sex abuse on May 15,

2005. Burfield explained that Montgomery no longer worked with DCS. After meeting with K.D.

at the Marshall Street residence, Montgomery drew up a “safety plan,” which Burfield approved.

Under the safety plan, K.D. was to live with her mother.

Because the safety plan was to expire in June 2005, Burfield and fellow DCS investigators

attempted to contact K.D.’s mother in order to re-issue the safety plan. Unable to contact K.D.’s

mother, on July 5, 2005, a DCS investigator called the home of a relative and was advised that Delk,

at some point, had dropped K.D. and her siblings off at the relative’s home. The relatives also did

not know how to reach K.D.’s mother, so Burfield removed the children from the relative’s home

on July 5, 2005. Burfield then contacted Dile to discuss the children’s custodial arrangement, and

Dile requested custody of K.D. When Burfield explained she could not have custody of K.D.

because she lived with the Defendant, who was accused of abusing K.D., Dile insisted the Defendant

had done nothing to K.D. Dile declined to ask the Defendant to leave in order for K.D. to be allowed

to live in her home. Ultimately, unable to locate Delk, the State took custody of the children and

placed them in the home of another relative.

Burfield confirmed that a page of a handwritten notes, introduced into evidence for

identification only, were notes she took while in the field investigating K.D.’s abuse allegations. The

notes state that Delk had threatened she would “beat K.D. up” if she did not say “certain things” to

police. Burfield said the notes were based on a statement from K.D.

5

Burfield next confirmed she was the author of a series of electronic notes about K.D.’s case

contained in a print-out presented in court. She confirmed the notes reflected that K.D. told

Montgomery that the Defendant had urged her to perform fellatio on him, though K.D. did not

appear to say when or where he had done so.

On re-direct examination, Burfield confirmed DCS had investigated several complaints

involving Delk family members before it received information about the Defendant’s behavior. One

of these complaints was based on K.D’s sustaining a head injury after her mother allegedly hit her

in the head with a glass beer mug. The DCS investigation into the physical abuse allegation against

Delk was ongoing while DCS investigated the subsequent allegation of sexual abuse against the

Defendant.

At the close of the State’s proof, the trial court granted the Defendant’s motion for judgment

of acquittal as to the charge of rape of a child in COUNT 2, and it submitted the lesser-included

offense of attempted rape of a child, as well as appropriate lesser-included offenses of attempted rape

of a child, for the jury’s consideration in COUNT 2.

The Defendant presented the following proof: Crystal Gayle Lindsley, the Defendant’s

twenty-eight year old daughter, testified she saw K.D. three to four times a week during May and

April 2005. According to Lindsley, the Defendant sold his El Camino truck before investigators

arrived at the Marshall residence on May 15, 2005. Lindsley did not recall, however, how long

before May 15 the Defendant sold the truck.

Lindsley testified she witnessed K.D.’s mother tell K.D. she would “beat the [expletive] out

of” K.D. if she did not tell investigators the Defendant sexually assaulted her. She said K.D. called

her “Aunt Kim.” Lindsley also testified that, at Dile and the Defendant’s wedding, K.D. said to her,

“Papa didn’t do this to me . . . I had to tell the social work and police and everybody that he did so

I wouldn’t get . . . beat up.”

On cross-examination, Lindsley testified she loved her father, did not want anything bad to

happen to him, and did not believe he sexually assaulted K.D. She insisted K.D. knew her as “Aunt

Kim,” and called her by that name.

Debra Delk Dile, K.D.’s grandmother, testified she was engaged to the Defendant during

May 2005, and she married him around July 27, 2005, six weeks after officers began investigating

him for sexually abusing K.D. She recalled that, in early 2005, K.D. visited her and begged her not

to make her return to her mother’s home. K.D. explained to Dile that her mother had hit her and

thrown her by her hair. Dile then filed a petition in Davidson County Juvenile Court alleging her

daughter had physically abused K.D. Dile said that, although her relationship with her daughter had

always been strained, it worsened after she filed the petition against her daughter. After a hearing

on the petition, the juvenile court ordered K.D. to stay with Dile during the week and her mother on

the weekends. She recounted that K.D. was to return to Dile’s custody the day investigators arrived

at the Marshall residence.

6

Dile testified the Defendant traded his El Camino truck for a van two months after they began

dating, which was “way before” April and May 2005. She recalled that she, K.D., K.D’s sister, the

Defendant, the Defendant’s adult daughter, and Delk used to go to the tanning salon “as a family

thing.” She insisted, however, that the Defendant and K.D. were never left alone while she tanned.

Dile testified she lived for two and a half years at the Oneida home before she began dating

the Defendant. She said that she lived at the Marshall house “for a while.” Dile said that neither the

Oneida house nor the Marshall house had bunk beds.

Dile tesified that, the night before her wedding, she asked K.D. whether what she told police

about the Defendant was true. According to Dile, K.D. responded, “[M]ama, they wouldn’t listen.

No, they won’t listen to me. I tried to tell them but they won’t listen to me.” Dile stated that K.D.

was a bridesmaid in their wedding and presented a picture of K.D. standing near the Defendant

during the wedding. Dile tesified that K.D. never acted as though she feared the Defendant or did

not want to be around him.

On cross-examination, Dile testified she loved the Defendant, who was her husband. She

clarified they were married July 30, 2005. Dile explained that she reported her daughter for abusing

only K.D. and not her other children because her daughter “took her frustration” out on K.D. alone.

She clarified that she filed the petition in April 2005 and thereafter shared custody of K.D. with her

daughter.

Dile said she and the Defendant briefly lived in the Marshall Street residence, where Delk

also lived. She explained they stayed at the Marshall Street house while they prepared to move into

a new house.

Dile said that, while K.D. lived with her and the Defendant at the Oneida Street residence,

Dile worked, but the Defendant did not. She testified the Defendant, however, was never alone with

K.D. She said she “always had a houseful of people” that would have been present when she was

not. She testified she trusted the Defendant to be alone with K.D.

Dile testified she believed her daughter forced K.D. to falsely accuse the Defendant of

abusing her, reiterating that K.D. did not appear to be scared of the Defendant the night before or the

day of their wedding.

On re-direct examination, Dile testified her daughter often retaliated against her when she

refused to give her daughter money for rent or bills. She theorized that, because she and the

Defendant were about to move out of the Marshall Street house, her daughter feared that her access

to her mother’s money would disappear. When investigators arrived at the Marshall Street house

on May 15 to speak with K.D., Dile was at work, and the Defendant was at the house on Marshall

Street loading a U-Haul truck with their belongings to prepare for the move into their new house.

Dile said Detective Sutherland came and interviewed her at work on May 15. Dile theorized that

her daughter induced K.D. to accuse the Defendant of abusing her because her daughter realized she

would get less money from her mother if her mother moved into a new home with the Defendant.

7

Patricia Martin, the paternal grandmother of K.D.’s cousin Bryant, testified that, in April and

May 2005, she came into frequent contact with members of K.D.’s family because she visited her

grandson three or four times a week. She testified the Defendant owned an El Camino truck when

he and Dile began dating but traded it for a van two or three months later. She believed he made the

trade before the May 15 investigation. She said she had been to many of the various homes K.D.’s

family occupied, saying the family never entered into formal leases and, as a result, moved

frequently. She said she had never seen a bunk bed in any of the Delks’ homes she visited. Martin

testified she heard Delk tell K.D. “she would beat her brains in” if K.D. did not tell police what Delk

instructed her to say. Martin did not identify what Delk instructed K.D. to say.

On cross-examination, Martin explained she overheard Delk’s threat to K.D. when she was

picking up her grandson Bryant from the Oneida Street house where Dile and the Defendant lived

and Delk sometimes stayed. She testified that, because Delk was frequently verbally abusive to

K.D., Delk’s aggressive behavior was not out of the ordinary.

In rebuttal, the State called Dawn Harper and again called Detective Sutherland to testify.

Dawn Harper testified she was a forensic interviewer at the Nashville Child Advocacy Center during

the investigation of the charges against the Defendant. Harper explained the procedure for

conducting a forensic interview, which she testified she followed when she interviewed K.D.: she

sits on the floor of an empty room with the child, attempts to build a rapport with the child, and asks

the child to tell her about the event at issue.

Harper interviewed K.D. on May 27, 2005, and she prepared a short report of the interview,

which the State presented at trial. She confirmed that her interview of K.D. was videotaped and that

she reviewed the videotape the morning of her testimony.

She recalled that K.D. told her that, on one occasion, the Defendant woke her up by shaking

her and “rubbing her privates” but that her younger sister caught the Defendant doing this. Harper

confirmed that K.D. then said her father assaulted the Defendant because her sister told him what

the Defendant had done to K.D.

Harper also recalled that K.D. said the Defendant told her to “suck it” while she lay on a bunk

bed in her room watching the Disney Channel. Harper said K.D. never told her anything about the

Defendant’s conduct in an El Camino truck parked in front of a tanning salon.

On cross-examination, Harper said K.D. never told her the date on which the Defendant

sexually contacted her. She said differentiating between the episodes of sexual contact was difficult.

She attributed this difficulty to the practice in forensic interviewing of inviting “free narrative to

where the child tells everything that they can.”

Detective Sutherland testified that Dile, since the initiation of the investigation against the

Defendant, insisted that K.D.’s mother forced K.D. to falsely accuse the Defendant of sexual abuse.

In order to determine whether Dile was correct, the detective monitored a conversation between

8

K.D., Delk, and Dile. In the conversation, which no party knew he was monitoring, Dile insisted

K.D. admit the Defendant did not abuse her, but both K.D. and her mother maintained that the

allegations were true. Also, the detective arranged for a taxi equipped with a recording device to

transport K.D. and her mother to the interview with Harper in order to detect whether Delk attempted

to influence K.D.’s statement. He instructed the driver, an undercover police officer, to leave the

two alone in the taxi for a brief period. K.D. and her mother barely spoke during the ride to and from

the interview and said nothing during the period in which the driver left them alone in the taxi.

At the close of proof, the Davidson County jury convicted the Defendant of one count of rape

of a child, one count of attempted rape of a child, and two counts of aggravated sexual battery.

C. Sentencing Hearing

At the Defendant’s sentencing hearing, the following evidence was presented: The State

entered a presentence report, which stated that, at the time of sentencing, the Defendant was fifty

years old, unemployed, and suffering from memory problems, “nerves,” chronic obstructive

pulmonary disease, limited vision and hearing, and hypertension. The Defendant dropped out of

school in the seventh grade and worked in construction and maintenance. He married and divorced

several times before he married Dile. He has two sons and two daughters from his previous

marriages.

According to the presentence report, the Defendant has two convictions for aggravated

assault, two convictions for assault, two convictions for driving under the influence, twelve

convictions for driving with a revoked or suspended license, and one conviction each for possession

of a prohibited weapon; manufacture, sale, or possession of an illegal substance; patronizing

prostitution; selling drugs, reckless endangerment involving a deadly weapon, and grand larceny.

The presentence report included a victim impact statement from one of K.D.’s aunts.

According to her statement, the abuse caused K.D. to fear strangers and being alone. The letter

stated that K.D. had “daily problems with self-esteem and self-confidence” and that she continued

to receive rape and sexual abuse counseling.

The Defendant introduced a report of his medical conditions, which confirmed that he

suffered from chronic pulmonary obstructive disorder and asthma. Finally, as the Defendant

committed his crimes before July 1, 2005, he signed a waiver for the trial court to sentence him

under the 2005 Sentencing Reform Act. As such, the trial court concluded it could use factors other

than his criminal history to enhance his sentence.

The trial court applied enhancement factors (1), that the Defendant had a previous history of

criminal convictions or criminal behavior, in addition to those necessary to establish the appropriate

range, and enhancement factor (14), that the defendant abused a position of public or private trust,

in a manner that significantly facilitated the commission or the fulfillment of the offense to enhance

the Defendant’s sentences. See T.C.A. § 40-35-114(1), (14). The trial court recognized the

Defendant’s “deteriorating health” as the only mitigating factor. The trial court sentenced the

9

Defendant as a child rapist to serve the following sentences at 100%: twenty-two years for the rape

of a child conviction; ten years for the attempted rape of a child conviction; and ten years for each

of the two aggravated sexual battery convictions. Finding factor (5) of the consecutive sentencing

statute, which applies to defendants convicted of two or more statutory child sex abuse charges

accompanied by aggravating circumstances, applied to the Defendant, the trial court ordered the

Defendant to serve the twenty-two year sentence for rape of a child consecutively to the remaining

sentences, for an effective sentence of thirty-two years. It is from these judgments that the Defendant

now appeals.

II. Analysis

On appeal, the Defendant contends: (1) the evidence, as a matter of law, was insufficient to

support his convictions because the proof at trial fatally varied from his indictments; (2) the trial

court erred when it failed to merge one of his aggravated sexual battery convictions into his rape of

a child conviction; and (3) the trial court erred when it set the length and alignment of his sentences.

A. Variance Between Indictment and Proof at Trial

The Defendant contends that the indictments issued against him allege he raped and assaulted

the victim in April and May 2005 but that the State’s proof established that the conduct occurred

before April and May 2005. As a result, the Defendant argues, the proof at trial materially differed

from the indictment and, therefore, prevented him from preparing an adequate defense. As such, he

concludes, the proof at trial was insufficient as a matter of law to support his convictions.

The State responds first that, because the proof at trial established that the conduct occurred

during the time period set out in the indictments, between April and May 2005, the proof at trial did

not vary from the indictments. The State also argues that any variance between the dates in the

indictments and at trial is not material because date is not a material element of any the offenses at

issue. Further, the State argues, the Defendant failed to show how any variance between his

indictments and the trial proof prevented him from preparing an adequate defense.

Both the Federal and Tennessee Constitutions guarantee the criminally accused knowledge

of the “nature and cause of the accusation.” U.S. Const. Amend. VI; see also Tenn. Const. art. I, §

9. In order to comply with these constitutional guidelines, an indictment or presentment must

provide notice of the offense charged, adequate grounds upon which a proper judgment may be

entered, and suitable protection against double jeopardy. T.C.A. § 40-13-202 (2003); State v. Byrd,

820 S.W.2d 739, 740-41 (Tenn. 1991). The Tennessee Supreme Court has stated:

[A]n indictment is sufficient to satisfy the constitutional guarantees of notice to the

accused if the indictment contains allegations that: (1) enable the accused to know

the accusation to which answer is required; (2) furnish the trial court an adequate

basis for entry of a proper judgment; and (3) protect the accused from a subsequent

prosecution for the same offense.

10

State v. Hammonds, 30 S.W.3d 294, 299 (Tenn. 2000) (citations omitted).

This Court explained, “A variance between an indictment or a subsequent bill of particulars

and the evidence presented at trial is not fatal unless it is both material and prejudicial.” State v.

Shropshire, 45 S.W.3d 64, 71 (Tenn. Crim. App. 2000) (citing State v. Moss, 662 S.W.2d 590, 592

(Tenn. 1984)). A variance is material only where the indictment or the bill of particulars and the

proof do not substantially correspond. Id. (citing State v. Mays, 854 S.W.2d 638, 640 (Tenn. 1993)).

A variance is prejudicial when it causes the defendant to be misled or surprised at trial, or leaves the

defendant vulnerable to a second prosecution for the same offense. Moss, 662 S.W.2d at 592. It is

not reversible error when a defendant is sufficiently aware of the charge and is able to adequately

prepare for trial. Id.

Having reviewed the evidence presented at trial in this case, we conclude the evidence

offered at trial did not fatally vary from the allegations set forth in the indictments. The indictments

allege each offense occurred “on a date between April, 2005 and May, 2005 . . .” At trial, the victim

testified the sexual contact occurred when she lived with Dile and the Defendant. Dile testified the

victim began living with her on weekdays in April 2005. K.D. specified the Defendant began to

sexually abuse her approximately three weeks before police interviewed her. The record reflects that

police interviewed the victim on May 15, 2005, which indicates that the Defendant began sexually

assaulting K.D. on or around April 24, 2005. K.D. also testified her brother’s birthday, April 15,

2005, occurred in the middle of the time period during which the Defendant abused her. Therefore,

K.D’s and Dile’s testimony show the sexual contact occurred in April and May 2005, which is

consistent with the time frame laid out in the indictments. The proof at trial does not, therefore, vary

from the indictments. As such, the proof offered by the State is not, as a matter of law, insufficient

to support the Defendant’s convictions. He is not entitled to relief on this issue.

B. Merger

The Defendant contends that his convictions for rape of a child and aggravated sexual battery

derive from the same conduct and, therefore, violate the double jeopardy clauses of the United States

and Tennessee Constitutions. The Defendant acknowledges he failed to object to the trial court’s

entry of separate convictions and, consequently, waived review of this issue pursuant to Tennessee

Rule of Appellate Procedure 3(e). He requests this court review the issue for plain error.

The State responds that the Defendant waived review of this issue but that, in the event this

Court reviews the issue for plain error, this Court should affirm the Defendant’s separate convictions

for rape of a child and aggravated sexual battery because each conviction rests upon a separate,

discrete act by the Defendant.

An appellate court may review an issue which would ordinarily be considered waived if the

court finds plain error in the record. Rule 52 of the Tennessee Rules of Criminal Procedure states,

“An error which has affected the substantial rights of an accused may be noticed at any time, even

though not raised in the motion for new trial or assigned as error on appeal, in the discretion of the

appellate court where necessary to do substantial justice.” Tenn. R. Crim. P. 52(b). Whether an

11

issue rises to the level of plain error is a decision that lies within the sound discretion of the appellate

court and may be considered: (1) to prevent needless litigation; (2) to prevent injury to the interests

of the public; and (3) to prevent prejudice to the judicial process, prevent manifest injustice, or to

do substantial justice. See Tenn. R. App. P. 13(b); Tenn. R. Crim. P. 52(b); State v. Adkisson, 899

S.W.2d 626, 638-39 (Tenn. Crim. App. 1994).

The Defendant’s convictions for rape of child and aggravated sexual battery rest on two

actions the Defendant took during a single episode of sexual abuse against K.D. If indeed the

Defendant’s convictions are based on the same conduct for purposes of the double jeopardy clause,

the convictions violate his rights against double jeopardy found in the United States and Tennessee

Constitutions. In order to do substantial justice, therefore, we will review for plain error the trial

court’s failure to merge the Defendant’s convictions for rape of a child and aggravated sexual

battery. See Tenn. R. Crim. P. 52(b); Adkisson, 899 S.W.2d at 638-39.

In Adkisson, this Court stated that the following factors should be presented in order for an

appellate court to determine whether an error constitutes “plain error”: (a) the record must clearly

establish what occurred at the trial court; (b) a clear and unequivocal rule of law must have been

breached; (c) a substantial right of the accused must have been adversely affected; (d) the accused

must not have waived the issue for tactical reasons; and (e) consideration of the issue must be

“necessary to do substantial justice.” Adkisson, 899 S.W.2d at 641-42 (citations omitted). Our

Supreme Court characterized the Adkisson test as a “clear and meaningful standard” and emphasized

that each of the five factors must be present before an error qualifies as plain error. State v. Smith,

24 S.W.3d 274, 282-83 (Tenn. 2000).

Merger of convictions is sometimes necessary in order to remedy the double jeopardy

problem of multiple punishment. State v. Beard, 818 S.W.2d 376, 379 (Tenn. Crim. App. 1991).

Because it is a question of law, this Court’s review of a double jeopardy issue is de novo with no

presumption of correctness. State v. Lewis, 958 S.W.2d 736, 738 (Tenn. 1997). The double

jeopardy clause in the Unites States Constitution provides that no person “shall . . . be subject for

the same offense to be twice put in jeopardy of life or limb . . . .” U.S. Const. amend V. Similarly,

the Tennessee Constitution states that “no person shall, for the same offense, be twice put in jeopardy

of life or limb.” Tenn. Const. art. I, § 10. Three fundamental principles underlie double jeopardy:

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

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

State v. Burris, 40 S.W.3d 520, 524 (Tenn. Crim. App. 2000).

This case falls into the third category, multiple punishments for the same offense, which has

been referred to as the problem of “multiplicity.” See State v. Phillips, 924 S.W.2d 662, 665 (Tenn.

1996). When multiple sentences are imposed in a single trial, double jeopardy protection “is limited

to assuring that the court does not exceed its legislative authorization by imposing multiple

punishments for the same offense.” Brown v. Ohio, 432 U.S. 161, 165 (1977). Prosecutors cannot

avoid the limitations of the double jeopardy clause by the simple expedient of dividing a single crime

into a series of temporal or spatial units. State v. Easterly, 77 S.W.3d 226, 232 (Tenn. Crim. App.

2000). Multiplicity of charges or convictions exists where prosecutors divide conduct into discrete

12

offenses, “creating several offenses out of a single offense.” State v. Charles L. Williams, No.

M2005-00836-CCA-R3-CD, 2006 WL 3431920, at *29 (Tenn. Crim. App., at Nashville, Nov. 29,

2006) (quoting Phillips, 924 S.W.2d at 665). Whether the acts of a defendant constitute separate

offenses or one single crime must be determined by the facts and circumstances of each case. State

v. Pickett, 211 S.W.3d 696, 706 (Tenn. 2007).

A four-step analysis guides our determination of whether a defendant’s acts constitute a

single offense: (1) whether one offense is a lesser-included offense of the other under the

Blockburger2 analysis; (2) a consideration of the evidence used to establish the offenses, guided by

the principles our Supreme Court articulated in Duchac v. State, 505 S.W.2d 237 (Tenn. 1973); (3)

a consideration of whether there were discrete acts or multiple victims; and (4) a comparison of the

statutes and their respective purposes. State v. Denton, 938 S.W.2d 373, 378 (Tenn. 1996).

However, “[n]one of these steps is determinative; rather the results of each must be weighed and

considered in relation to each other.” Id.; see also State v. Mixon, 983 S.W.2d 661, 675-76 (Tenn.

1999).

1. Blockburger Analysis

To conduct a Blockburger analysis, this Court must determine whether the statutory

definitions of the offenses at issue require “proof of a fact that the other does not,” with the focus

being on the elements of the offenses. State v. Black, 524 S.W.2d 913, 920 (Tenn. 1984) (quoting

Blockburger, 284 U.S. at 304) (other citations and internal quotations omitted). In this case, this

analysis must be applied to the offenses of rape of a child and aggravated sexual battery, as defined

in the Tennessee Code.

In Tennessee, the offense of rape of a child consists of two elements: (1) that the defendant

sexually penetrate the victim; and (2) that the victim be between three and thirteen years of age.

T.C.A. § 39-13-522(a) (2006). The offense of aggravated sexual battery consists of the following

two elements, which differ slightly from the elements of rape of a child: (1) that the defendant had

“unlawful sexual contact,” which the Code defines as the intentional touching of intimate parts with

the purpose of sexual arousal or gratification, with the victim; and (2) that the victim be less than

thirteen years of age. T.C.A. §§ 39-13-501(6), -504(a)(1)-(4) (2006). In summary, a defendant must

penetrate the victim in order to commit rape of a child, but not in order to commit aggravated sexual

battery. Similarly, although a defendant must touch a victim’s “intimate parts” with the purpose of

deriving sexual arousal in order to commit aggravated sexual battery, rape of a child requires no

similar purpose. Therefore, the offenses of rape of a child and aggravated sexual battery each require

“proof of fact that the other does not” and, as a result, are not the “same” for double jeopardy

purposes. See State v. Larry Darnnell Pinex, No. M2007-01211-CCA-R3-CD, 2008 WL 4853077,

*9 (Tenn. Crim. App., at Nashville, Nov. 6, 2008) (concluding that, per Blockburger, aggravated

rape and aggravated sexual battery are separate offenses), perm. app. denied (Tenn. May 11, 2009).

2

See Blockburger v. United States, 284 U.S. 299, 304 (1932).

13

The presence of different statutory elements weighs against a finding of multiplicity in cases

of this type, but it does not preclude such a finding. Denton, 938 S.W.2d at 378; compare State v.

Barney, 986 S.W.2d 545, 549-50 (Tenn. 1999) (holding separate convictions for rape of a child and

aggravated sexual battery did not violate double jeopardy), with State v. Chester Wayne Walters, No.

M2003-03019-CCA-R3CD, 2004 WL 2726034, at *5-6 (Tenn. Crim. App., at Nashville, Nov. 30,

2004) (holding separate convictions for rape of a child and aggravated sexual battery did violate

double jeopardy). In this case, the determination of whether the two convictions violate double

jeopardy depends on the additional factors articulated in Denton.

2. Evidence Used for Each Conviction

The second Denton factor requires that we examine the evidence used to convict the

Defendant in light of our Supreme Court’s decision in Duchac, 505 S.W.2d at 239-40. Denton, 932

S.W.2d at 381. In Duchac, our Supreme Court set out what has been called the “same evidence

test,” which is a determination of “whether the same evidence is required to prove” both offenses

at issue. Duchac, 505 S.W.2d at 239. If the same evidence is not required to prove each offense,

then the fact that both charges resulted from one event does not implicate double jeopardy concerns.

Id.

In this case, we conclude that the same evidence is not required to prove the Defendant’s

convictions for rape of a child and aggravated sexual battery. The victim’s testimony that the

Defendant digitally penetrated her vagina on her grandmother’s bed after removing her pants and

underwear supports his conviction for rape of a child. The victim’s testimony that, during the same

episode of abuse in which he digitally penetrated her vagina, the Defendant rubbed the area

surrounding her anus supports the Defendant’s conviction for aggravated sexual battery. As such,

the portions of the victim’s testimony that support the Defendant’s rape of a child conviction are

distinct from those that support his conviction for aggravated sexual battery. Thus, the evidence

used to convict the Defendant was not “the same” within the meaning of Duchac. 938 S.W.2d at

381.

3. Discrete Versus Continuous Nature of Conduct

The third Denton factor requires us to consider whether the Defendant’s conduct affected

multiple victims and whether it constituted discrete acts. Denton, 938 S.W.2d at 381. The conduct

at issue clearly involves only one victim. Whether the convictions are based on discrete or

continuous conduct, however, depends on a five-part consideration described in State v. Barney, 986

S.W.2d 545, 548-49 (Tenn. 1999). In Barney, our Supreme Court set out five factors to be

considered in determining whether convictions based on the same occasion involve discrete or

continuous conduct. Id. The Barney considerations guide a court in determining whether an

instance of conduct in the course of a sexual assault is “directly facilitative, and thus, incidental, or

merely preparatory in the sense of intending to arouse the victim or perpetrator” for the commission

of the principle offense. Id. Maintaining the defendant’s intent as the “critical consideration,” a

court should consider the following aspects of the defendant’s conduct:

14

1. temporal proximity–the greater the interval between the acts, the more likely the

acts are separate;

2. spatial proximity–movement or re-positioning tends to suggest separate acts;

3. occurrence of an intervening event–an interruption tends to suggest separate acts;

4. sequence of the acts–serial penetration of different orifices as distinguished from

repeated penetration of the same orifice tends to suggest separate offenses; and

5. the defendant’s intent as evidenced in his conduct and statements.

Id. “The fact that the acts were closely related in time and place does not render them inseparable;

indeed, emphasizing only time and place is tantamount to a ‘same transaction’ analysis, which is not

part of the Denton analysis.” Cable v. Clemmons, 36 S.W.3d 39, 43 (Tenn. 2001).

In the case under submission, K.D. described an episode of sexual abuse in which the

Defendant sexually contacted several areas of her body on her grandmother’s bed. She testified the

Defendant removed her pants and underwear, lay her down on her grandmother’s bed, and began to

“lick” her “private.” While he did so, he began to move his fingers in and out of her vagina. K.D.

said the Defendant also rubbed her buttocks and the area around her anus. After the Defendant

finished, he told K.D. to keep what happened a “secret.”

Analyzing the Defendant’s two acts under the Barney factors, we conclude the acts to be

discrete, separate acts. The evidence does not suggest a pause between the Defendant’s vaginal

penetration of the victim and his touching her anus. Nor does a re-positioning or an interruption

separate the actions. The transfer of the Defendant’s acts from one area of K.D.’s body to another

suggests the acts were distinct. The Defendant moved from one orifice to another, rather than

repeatedly penetrating or contacting the same orifice. In our view, the transfer between one area of

a victim’s body to another sets in motion a new, distinct set of physical and emotional responses in

the victim. The effect of the contact with a distinct part of the victim’s body occurs whether or not

a defendant pauses, repositions, or behaves differently between making contact with the second

orifice. In this case, therefore, the Defendant’s transfer of his attention and actions from the victim’s

vagina to her anus gave rise to his culpability for a separate offense. Accordingly, the third factor

does not weigh in favor of the Defendant’s argument.

4. Legislative Intent Behind Offense Statutes

The fourth Denton factor requires us to compare the relevant statutes and their respective

purposes. Denton, 938 S.W.2d at 381. As stated by our Supreme Court, the rape and sexual battery

statutes are both “intended and designed to deter and punish sexually assaultive conduct.” Mixon,

983 S.W.2d at 676. Accordingly, the fourth factor weighs in favor of the Defendant’s argument.

In summary, aggravated sexual battery and rape of a child are separate offenses under

15

Blockburger analysis, the same evidence is not necessary to establish the Defendant’s guilt of both

convictions, the Defendant’s actions were conceptually separate and distinct under Barney, and the

Legislature had a common purpose in criminalizing rape of a child and aggravated sexual battery.

Three of the four Denton factors, therefore, weigh in favor of punishing the Defendant’s actions

separately. Denton, 938 S.W.2d at 378. Based on our careful review of the above factors, therefore,

we conclude the Defendant’s convictions for rape of a child and aggravated sexual battery do not

violate the Tennessee Constitution’s proscription against double jeopardy. The Defendant has,

therefore, failed to demonstrate that a “clear and unequivocal rule of law” has been breached, which

is necessary to demonstrate plain error. Adkisson, 899 S.W.2d at 641-42; Smith, 24 S.W.3d at 282-

83. As such, he is not entitled to relief on this issue.

C. Sentencing

1. Length of Sentence

The Defendant objects to the trial court’s application of enhancement factor (14), that he

abused a position of private trust to facilitate the commission of the offense, to enhance each of his

sentences. T.C.A. § 40-35-114(14) (2006). He argues his romantic relationship with the victim’s

grandmother did not create a “position of trust” between himself and the victim within the meaning

of enhancement factor (14). Noting that the victim referred to the Defendant as her “Pepa” and that

the sexual contact occurred when the Defendant was caring for the victim while her grandmother was

at work, the State responds that the Defendant was in a position of private trust with the victim,

which he used to facilitate his sexual contact with the victim.

When a defendant challenges the length, range, or manner of service of a sentence, this Court

must conduct a de novo review on the record with a presumption that “the determinations made by

the court from which the appeal is taken are correct.” T.C.A. § 40-35-401(d) (2006). This

presumption, however, is conditioned upon the affirmative showing in the record that the trial court

properly sentenced the defendant. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). As the

Sentencing Commission Comments to this section note, the burden is on the appealing party to show

that the sentencing is improper. T.C.A. § 40-35-401, Sentencing Comm’n Cmts. If the trial court

followed the statutory sentencing procedure, made findings of facts which are adequately supported

in the record, and gave due consideration and proper weight to the factors and principles relevant to

sentencing under the 1989 Sentencing Act, T.C.A. § 40-35-103 (2006), we may not disturb the

sentence even if a different result was preferred. State v. Ross, 49 S.W.3d 833, 847 (Tenn. 2001).

The presumption does not apply to the legal conclusions reached by the trial court in sentencing a

defendant or to the determinations made by the trial court which are predicated upon uncontroverted

facts. State v. Dean, 76 S.W.3d 352, 377 (Tenn. Crim. App. 2001); State v. Butler, 900 S.W.2d 305,

311 (Tenn. Crim. App. 1994); State v. Smith, 891 S.W.2d 922, 929 (Tenn. Crim. App. 1994). In the

event the record fails to demonstrate the required consideration by the trial court, appellate review

of the sentence is purely de novo. Ashby, 823 S.W.2d at 169.

In conducting a de novo review of a sentence, we must consider: (1) the evidence, if any,

received at the trial and the sentencing hearing; (2) the presentence report; (3) the principles of

16

sentencing and arguments as to sentencing alternatives; (4) the nature and characteristics of the

criminal conduct involved; (5) evidence and information offered by the parties on the mitigating and

enhancement factors set out in Tennessee Code Annotated sections 4-35-113 and -114; (6) any

statistical information provided by the administrative office of the courts as to sentencing practices

for similar offenses in Tennessee; and (7) any statement the defendant made in the defendant’s own

behalf about sentencing. See T.C.A. § 40-35-210 (2009); State v. Taylor, 63 S.W.3d 400, 411 (Tenn.

Crim. App. 2001).

In Tennessee, if the defendant committed his crime before July 1, 2005, he may either be

sentenced under the 1989 Criminal Sentencing Act and in accordance with Blakely v. Washington

and State v. Gomez, or he may sign a waiver that allows the trial court to sentence him under the

2005 Sentencing Reform Act. Blakely, 542 U.S. 296 (2004); Gomez, 239 S.W.2d 722 (Tenn. 2007).

The Defendant committed his crimes in May and April of 2005 and was sentenced on January 18,

2008. The Defendant, however, signed a waiver for the trial court to sentence him under the 2005

Sentencing Reform Act.3

The Criminal Sentencing Act of 1989 and its amendments describe the process for

determining the appropriate length of a defendant’s sentence. Under the Act, a trial court may

impose a sentence within the applicable range as long as the imposed sentence is consistent with the

Act’s purposes and principles. T.C.A. § 40-35-210(c)(2) and (d) (2006); see State v. Carter, 254

S.W.3d 335, 343 (Tenn. 2008). The Tennessee Code allows a sentencing court to consider the

following enhancement factors, among others, when determining whether to enhance a defendant’s

sentence:

(1) The defendant has a previous history of criminal convictions or criminal behavior, in

addition to those necessary to establish the appropriate range;

...

(14) The defendant abused a position of public or private trust, or used a professional license

in a manner that significantly facilitated the commission or the fulfillment of the offense .

...

T.C.A. § 40-35-114(1), (14) (2006). If an enhancement factor is not already an essential element of

the offense and is appropriate for the offense, then a court may consider the enhancement factor in

its length of sentence determination. T.C.A. § 40-35-114 (2006). In order to ensure “fair and

consistent sentencing,” the trial court must “place on the record” what, if any, enhancement and

mitigating factors it considered as well as its “reasons for the sentence.” T.C.A. § 40-35-210(e).

3

The legislature amended the Sentencing Reform Act of 1989, with the changes taking effect on June 7,

2005. W hen, as in this case, the crime occurred before June 7, 2005, the Defendant may “choose” the sentencing

scheme for the trial court to use when sentencing him. See State v. Joe Allen Brown, No.

W 2007-00693-CCA-R3-CD, 2007 W L 4462990, at *4 n 1 (Tenn. Crim. App., at Jackson, Dec. 20, 2007), no Tenn.

R. App. P. 11 application filed.

17

Before the 2005 amendments to the Sentencing Act, both the State and a defendant could appeal the

manner in which a trial court weighed enhancement and mitigating factors it found to apply to the

defendant. T.C.A. § 40-35-401(b)(2) (2003). The 2005 amendments deleted as grounds for appeal,

however, a claim that the trial court did not properly weigh the enhancement and mitigating factors.

See 2005 Tenn. Pub. Acts ch. 353, §§ 8, 9. In summary, although this Court cannot review a trial

court’s weighing of enhancement factors, we can review the trial court’s application of those

enhancement factors. T.C.A. § 40-35-401(d) (2006); Carter, 254 S.W.3d at 343.

The Defendant is a Range I offender, and rape of a child is a Class A felony. T.C.A. § 39-13-

522. Therefore, the appropriate range for the Defendant’s rape of a child conviction is fifteen to

twenty-five years. T.C.A. § 40-35-112(a)(1) (2006). Attempted rape of a child and aggravated

sexual battery are Class B felonies. T.C.A. §§ 39-13-522, -504. Therefore, the appropriate range

for both the Defendant’s attempted rape of a child conviction and his two aggravated sexual battery

convictions is eight to twelve years.

At the conclusion of the Defendant’s sentencing hearing, the trial court applied two

enhancement factors to each of his four convictions: enhancement factor (1), that the Defendant had

a previous history of criminal convictions or criminal behavior, in addition to those necessary to

establish the appropriate range; and enhancement factor (14), that the defendant abused a position

of public or private trust, or used a professional license in a manner that significantly facilitated the

commission or the fulfillment of the offense. See T.C.A. § 40-35-114(1), (14). The court explained

its finding, under factor (14), that the Defendant “abused a position of trust, public or private trust,

in a manner that significantly facilitated the commission or the fulfillment of the offense”:

She was in the custody of her grandmother who works. And so [the Defendant] was

in charge of the supervision of the child. . . . [S]he was put in . . . his care and these

offenses occurred when he had that. So I think the record clearly makes out factor

fourteen. So I’m going to use factor one and fourteen as to all counts.

The trial court recognized the Defendant’s poor health as a mitigating factor under Tennessee Code

Annotated section 40-35-113(13), which allows a trial court to consider “[a]ny other factor consistent

with the purposes of this chapter” as a mitigating factor. The trial court gave the Defendant an

enhanced sentence of twenty-two years for his rape of a child conviction, and enhanced sentences

of ten years each for his remaining three convictions.

The Defendant disputes only the trial court’s application of enhancement factor (14), that he

abused a position of private trust to facilitate his sexual contact with the victim. See T.C.A. § 40-35-

114(14). In support of his argument that he was not in a position of private trust with the victim, he

cites our Supreme Court’s opinions holding that neither a significant age difference nor living in the

same household alone creates a position of trust between defendant and victim. See State v.

Kissinger, 922 S.W.2d 482, 488 (Tenn. 1996) (age difference insufficient alone to create position

of trust); State v. Gutierrez, 5 S.W.3d 641, 646 (Tenn. 1999) (living in same household insufficient

alone to create position of trust).

18

After a thorough review of the record, we conclude the record contains indicia of a dependent

relationship between the Defendant and K.D., in addition to their living together and their age

difference. First, K.D. referred to the Defendant as her “Pepa,” which in our view indicates she

regarded the Defendant, who was dating her grandmother, as an authority figure. Further, the victim

was placed in the Defendant’s charge while her grandmother worked. Therefore, K.D. was placed

in a position in which she was expected to listen to and obey the Defendant. These factors, coupled

with an age difference and the fact K.D. lived with the Defendant and her grandmother in an

arrangement that approximated a nuclear family model, indicate the Defendant was in a position of

trust with K.D. See Kissinger, 922 S.W.2d at 488; Gutierrez, 5 S.W.3d at 646. The record does not

preponderate against the trial court’s finding that the Defendant was in a “position of private trust”

with the victim, which he used to facilitate his sexual contact with the victim. See T.C.A. § 40-35-

114(14). We conclude that the trial court did not err when it applied enhancement factor (14) to the

Defendant’s sentences. As such, the Defendant is not entitled to relief on this issue.

2. Alignment of Sentences

The Defendant also contends the trial court erred when it ordered the Defendant to serve his

rape of a child conviction consecutively to his convictions for attempted rape of a child and

aggravated sexual battery. He argues that, in order to base consecutive sentencing on Tennessee

Code Annotated section section 40-35-115(5)(b), as the trial court in this case did, a trial court must

make several factual findings the trial court in this case failed to make. The State responds that,

although the trial court’s findings may be incomplete, the record supports the existence of the factors

necessary to base consecutive sentencing on subsection (5)(b).

It is within the sound discretion of the trial court whether or not an offender should be

sentenced consecutively or concurrently. State v. James, 688 S.W.2d 463, 465 (Tenn. Crim. App.

1984). A court may order multiple sentences to run consecutively if it finds, by a preponderance of

the evidence, that at least one of seven listed factors exists. These seven factors include factor (5),

which applies where:

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

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

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

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

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

T.C.A. § 40-35-115(b)(5). In addition to these criteria, consecutive sentencing is subject to the

general sentencing principle that the length of a sentence should be “justly deserved in relation to

the seriousness of the offense” and “no greater than that deserved for the offense committed.”

T.C.A. § 40-35-102(1), 103(2); see also State v. Imfeld, 70 S.W.3d 698, 708 (Tenn. 2002). Rule

32(c) of the Tennessee Rules of Criminal Procedure instructs a trial court to explicitly recite on the

judgment its reasons for imposing a consecutive sentence.

On appeal, the Defendant asserts the trial court improperly imposed consecutive sentencing

19

based upon factor (5). Relying on Raygan L. Presley v. State, the Defendant asserts that, in order

to base consecutive sentencing on factor (5), each consideration mentioned in factor (5) must weigh

in favor of consecutive sentencing. No. M2007-02487-CCA-R3-CD, 2008 WL 3843849, *8-9

(Tenn. Crim. App., at Nashville, Aug. 18, 2008), no Tenn. R. App. P. 11 application filed. Our

examination of case law reveals, however, that each factor (5) consideration need not weigh in favor

of consecutive sentencing in order for the factor to apply.

In Presley, this Court reversed consecutive sentencing based on factor (5) where the victim’s

relationship with the defendant (her stepfather) was the sole consideration that favored consecutive

sentencing, and the record preponderated against the trial court’s finding of residual mental or

physical damage in the victim and failed to establish the that the three remaining considerations

weighed in favor of consecutive sentencing. Id. The Court explained consecutive sentencing was

improper because the record established only that one consideration, the victim’s relationship with

the defendant, favored consecutive sentencing. Id. Presley, therefore, does not require that each

factor (5) consideration weigh in favor of consecutive sentencing, as the Defendant insists. Instead,

it merely cautions that one factor’s weighing in favor of consecutive sentencing does not alone

establish factor (5) as a statutory basis for consecutive sentencing.

At the conclusion of the sentencing hearing, the trial court found that factor (5) justified

consecutive sentencing:

The grounds for which I can run things concurrently or consecutively are laid out in

40-35-115. The only one that would apply in this case would be factor number five,

that if convicted of two or more statutory offenses involving sexual abuse of a minor

with consideration of the aggravating circumstances arising from the relationship

between the victim and the [D]efendant. And, clearly, . . . he was the boy[friend] of

her grandmother, who . . . later married [the Defendant]. The time of the undetected

sexual activity, which in this particular case was relatively short, considering some

of the cases that I’ve heard[] [and] [t]he nature and scope of the sexual acts and the

extent of the residual physical or mental damage to the victim or the victims . . .

would have to be made out by the testimony that was at trial, which there wasn’t all

that much. But I think when you look at [the facts] . . . as a whole, there [are] some

real serious problems with the way and the manner in which this occurred. The

victim, who had obvious issues–she hasn’t seen her mother in some time. I think she

just sort of disappeared. [The victim] [w]as in the custody of her grandmother,

whose boy[friend] then abuses her while she is in his care. I think [factor (5)] has

been made out.

The trial court therefore, found that all but one of the factor (5) considerations weighed in favor of

consecutive sentencing. The trial court then ordered the Defendant to serve his twenty-two year

sentence for rape of a child consecutively to his three remaining sentences of ten years each, which

were to be served concurrently. The Defendant’s total effective sentence, therefore, was thirty-two

years.

20

We conclude the trial court properly imposed consecutive sentencing based on factor (5).

The Defendant stands convicted of two statutory offenses involving sexual abuse of a minor, rape

of a child and attempted rape of a child. Therefore, as the trial court noted, the Defendant clearly

meets the first prerequisite for factor (5)’s application. See T.C.A. 40-35-115(5). Both K.D. and

Dile testified Dile was in a romantic relationship with the Defendant, and the Defendant was charged

with caring for K.D. in Dile’s absence when the abuse occurred. The record, therefore, does not

preponderate against the court’s finding that the relationship between K.D. and the Defendant

favored consecutive sentencing. Because K.D. testified the Defendant sexually assaulted her on at

least four different occasions, penetrating her on at least one of these occasions, the record does not

preponderate against the trial court’s finding that the nature and scope of the sexual acts justified

consecutive sentencing. Finally, according to the presentence report, at the time of sentencing the

victim was receiving counseling from an agency that provides psychological care to sex abuse

victims. Therefore, the record does not preponderate against the trial court’s finding that K.D.’s

residual mental damage justified consecutive sentencing. In summary, the Defendant was convicted

of two statutory sexual offenses involving a child and the trial court found all but one of the

additional factor (5) considerations weighed in favor of consecutive sentencing. We conclude,

therefore, that the trial court properly imposed consecutive sentencing based on factor (5). See

Presley, 2008 WL 3843849, at *8-9. Accordingly, we affirm the trial court’s application of

consecutive sentencing. The Defendant is not entitled to relief on this issue.

III. Conclusion

After a thorough review of the record and relevant authorities, we conclude the evidence is

sufficient to support the Defendant’s convictions, that his convictions for rape of a child and

aggravated sexual battery do not violate his right against double jeopardy, and that the trial court

properly sentenced him. Accordingly, we affirm the judgments of the trial court.

_________________________________

ROBERT W. WEDEMEYER, JUDGE

21