The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
April 25, 2001 Session
STATE OF TENNESSEE v. HERSHELL W. ESTES, JR.
Direct Appeal from the Criminal Court for Knox County
No. 62573 Richard R. Baumgartner, Judge
No. E2000-01869-CCA-R3-CD
February 4, 2002
A Knox County jury convicted the defendant of one count of aggravated sexual battery and one
count of rape of a child. For the former the trial court sentenced the defendant to ten years, and for
the latter he received a sentence of twenty-three years. The trial court then ordered these sentences
to run concurrently. Subsequently, the defendant brought an unsuccessful motion for new trial and
now pursues the present appeal in this Court raising two issues. More specifically, the defendant
avers that the trial court erred 1) by limiting defense counsel’s questioning of the victim concerning
her prior sexual experiences and 2) by improperly utilizing two enhancement factors in sentencing
the defendant. Upon review of these issues, we find that neither merit reversal and, thus, affirm the
convictions and sentences. However, we have noted error in the rape of a child judgment requiring
a remand for correction thereof.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed and
Remanded.
JERRY SMITH, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and THOMAS T.
WOODALL , J., joined.
Kenneth F. Irvine, Jr., Knoxville, Tennessee, for appellant, Hershell W. Estes, Jr.
Paul G. Summers, Attorney General & Reporter; Mark A. Fulks, Assistant Attorney General;
Randall E. Nichols, District Attorney General; and Kevin Allen, Robert Headrick, and Leland Price,
Assistant District Attorneys General, for appellee, State of Tennessee.
OPINION
Factual Background
The victim, T. E.,1 had not seen the defendant, her biological father, in numerous years but
asked her mother to help her contact the defendant because the victim wanted to get to know him.
The search was successful, and the defendant traveled to Kentucky on three or four occasions to
spend time with the victim. Again motivated by a desire to establish a relationship with her father,
T. E. moved down to Tennessee and began living with him in 1994. At some point after the victim
moved in with the defendant, he began french-kissing her.
The defendant later became engaged to Cindy Mansfield, a person T. E. admittedly did not
like. Thereafter both the defendant and the victim moved into the small home where Mansfield and
her mother, Terry Runion, resided. T. E. testified that while there, her father’s french-kissing of her
continued. She further described the events of the night from which these charges arose. According
to the victim, she had gone to the defendant’s bedroom to watch television.2 Wearing shorts, panties,
and a nightshirt that extended almost to her knees, the victim lay on the bed next to her father. As
recounted by the victim, the defendant began french-kissing her; went to the bathroom; came back
to the bed; rubbed her chest; took off her shorts and panties; pulled her shirt up around her neck;
rubbed her vagina; inserted his fingers inside her vagina and moved them in a circular direction;
climbed on top of her; and penetrated her vagina with his penis.
The victim alleged that this had transpired prior to Thanksgiving of 1995.3 Though the
victim told no one then about what had occurred, she returned to her mother’s home in Kentucky for
Thanksgiving and indicated that she wished to stay there. Subsequently, while spending the night
with a classmate whom she trusted, the victim told her classmate about what had happened. This
revelation ultimately led to the authorities being contacted and the resulting prosecution.
Limitation of Cross-Examination
Through his first issue the defendant complains that the trial court too severely restricted his
ability to cross-examine the victim concerning her prior sexual experiences. He particularly argues
that he should have been allowed to delve more deeply into two incidents: one involving a prior
instance of voluntary sexual intercourse and one involving a previous molestation.
Knowing that he wished to question the victim about both of these instances, the defendant
filed a pre-trial “NOTICE OF INTENT TO OFFER EVIDENCE PURSUANT TO TENN. R. EVID.
1
It is the policy of this Court to use initials in referring to child sex ual abu se victims.
2
This was a common occurrence because the television in the defendant’s and Cindy’s bedroom was better
than the one in the living room.
3
There w as no dispu te that the victim had been und er the age o f thirteen at that tim e.
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412.” We, thus, begin our analysis by observing that Tennessee Rule of Evidence 412 provides in
pertinent part:
(c) Specific instances of conduct. Evidence of specific instances of a victim's
sexual behavior is inadmissible unless admitted in accordance with the procedures
in subdivision (d) of this rule, and the evidence is:
(1) Required by the Tennessee or United States Constitution, or
(2) Offered by the defendant on the issue of credibility of the victim, provided
the prosecutor or victim has presented evidence as to the victim's sexual behavior,
and only to the extent needed to rebut the specific evidence presented by the
prosecutor or victim, or
(3) If the sexual behavior was with the accused, on the issue of consent, or
(4) If the sexual behavior was with persons other than the accused,
(i) to rebut or explain scientific or medical evidence, or
(ii) to prove or explain the source of semen, injury, disease, or knowledge of
sexual matters, or
(iii) to prove consent if the evidence is of a pattern of sexual behavior so
distinctive and so closely resembling the accused's version of the alleged encounter
with the victim that it tends to prove that the victim consented to the act charged or
behaved in such a manner as to lead the defendant reasonably to believe that the
victim consented.
Tenn. R. Evid. 412(c). In addition, Tennessee Rule of Evidence 412 also states:
If the court determines that the evidence which the accused seeks to offer satisfies
subdivisions (b) or (c) and that the probative value of the evidence outweighs its
unfair prejudice to the victim, the evidence shall be admissible in the proceeding to
the extent an order made by the court specifies the evidence which may be offered
and areas with respect to which the alleged victim may be examined or
cross-examined.
Tenn. R. Evid. 412(d)(4).
Turning first to the prior incident of sexual intercourse, we again observe that the defendant’s
stated purpose for seeking to introduce the contested additional information was “to prove or explain
knowledge of sexual matters.” See Tenn. R. Evid. 412(c)(4)(ii). This proof involved an incident of
voluntary sexual intercourse that had occurred between the victim and her step-brother at some point
before the victim had come to live with her father. Neither side disputed that such had taken place.
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In handling this matter pre-trial, the lower court heard argument from both the defense and
prosecution; reviewed the offer of proof and the full testimony of the victim;4 researched precedent;
and decided that the defense would be allowed to ask about this prior experience but would not be
allowed to delve into the specifics thereof. The trial court, therefore, stated that the defense would
be permitted to ask the following question: “Have you had or did you have prior to this alleged
offense with the defendant sexual intercourse with another individual?” The trial judge concluded
that such would afford the defendant “the opportunity to acknowledge or present to the jury the fact
that [the victim] could have learned about this particular activity in another manner” separate from
the incident involving the defendant.5
During the trial both the prosecution and the defense asked the defendant about this
experience. After detailing the defendant’s actions relative to these charges, the prosecution asked
if the victim had known what had been happening to her. When T. E. replied, “A little bit. Not
really, though[,]” the prosecution followed up by inquiring, “Had somebody else put their [sic] penis
in your vagina before that?” The victim then indicated that this was true and answered affirmatively
when the prosecutor asked, “So did you know what your dad [the defendant] was doing?”
Furthermore, on cross-examination, defense counsel queried, “before you came to Knoxville, did
you have sexual intercourse with someone other than” the defendant?6 Once again, T. E.
acknowledged that she had.
At the outset of our analysis, we observe that “[t]rial judges are empowered with great
discretion regarding the trial process, including the scope of cross-examination,” and that such
“discretion will not be disturbed unless an abuse” thereof is found. State v. Williams, 929 S.W.2d
385, 389 (Tenn. Crim. App. 1996). We further note that the Advisory Commission Comments to
Rule 412 explain that this rule was designed to “strike[] a balance between the paramount interests
of the accused in a fair trial and the important interests of the sexual assault victim in avoiding an
unnecessary, degrading, and embarrassing invasion of sexual privacy.” These dual sets of interests
are vitally important and are to be carefully weighed by the trial court in making these decisions.
After reviewing the record provided, we find that the trial judge in the instant case took great
care to protect the concerns of both the defendant and the victim through the allowed inquiry. See
State v. Steven Otis Nicely, No. 03C01-9805-CR-00174, 1999 WL 826029, at **6-7 (Tenn. Crim.
4
The first trial of this matter had resulted in a hung jury; thus, the trial court had access to not only the prior
offer of proof but also the victim ’s previou s trial testim ony .
5
Immediately thereafter the trial court asked, “Do es that solve all the questions we have for th at issue? ” to
wh ich the defense respo nde d, “It does fo r the defendan t, Your H ono r.”
6
Defense counsel had begun this series of qu estions by e stablishing th at T. E . had been arou nd n ine years old
and in the third grade prior to coming to Knoxv ille. Immed iately thereafter he attempted to ask if the victim had
eng aged in consensu al sexu al intercourse before mo ving to live w ith the d efendan t. The State objected, and the trial
cou rt instruc ted the defense to rephrase the question w ithou t using the w ord “con sensu al.”
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App. at Knoxville, Oct. 18, 1999).7 Though the defendant avers that the trial court too severely
restricted his right to confront his accuser, we determine that the jurors were adequately exposed to
this separate basis for the victim’s knowledge of sexual matters without permitting inquiry into
superfluous details of a further embarrassing and/or personal nature to the victim. This portion of
the defendant’s issue is, therefore, without merit.
We next address the alleged error involving the trial court’s limitation of the defense relative
to the instance of prior sexual abuse. Again, no dispute exists concerning whether T. E. was
molested at a foster home when she was younger. During cross-examination the victim indicated
that she had not quickly told about the alleged abuse by her father because she did not think that she
would be believed. At that point the defense sought to question her “about her prior abuse or
reporting it and how it was taken seriously that, by reporting this would happen.” As the jury-out
hearing concerning this matter began, defense counsel elaborated on the purpose for which this
evidence was being offered. More specifically, defense counsel stated:
Your Honor, what I would be offering is evidence related to the fact that [the victim],
when she was younger, she was living in a foster home at which point she was
sexually abused, and she reported it. And that, as a result of reporting it, that
gentleman was prosecuted, and I would offer that to show that she knew what would
happen, and that her testimony now that she didn’t tell anyone, because she didn’t
think she would be believed is in contradiction to what she knew from her own
experience.
When faced with opposition from the prosecutor, defense counsel added: “I am not sure Rule 412
applies in this situation. This is not being offered to show sexual promiscuity or anything of that
nature . . . . The purpose is to contradict her testimony as to why she says she did not report.”
Again over the opposition of the prosecution, the trial judge determined that this was a
legitimate area for inquiry and stated: “I don’t want you going into any details. The question is: Have
you previously reported sexual abuse? What happened as a result of that? That is it.”8 After the jury
returned, the following exchange occurred:
[Defense Counsel] Q. Prior to this time, however, you reported sexual abuse, didn’t you?
[T. E.] A. Yes.
[Defense Counsel] Q. And what happened when you reported sexual abuse that time?
[T. E.] A. He got followed up with many more counts and got arrested.
Once more, we do not find an abuse of the trial court’s discretion. We agree with the trial
judge that the details of the abuse were not relevant to the defendant’s stated purpose and that the
7
A similar procedure was followed in Nicely, and the defendan t com me nda bly cites this case as being factually
the mo st similar to the instant situation . See State v . Steve n O tis Nicely, 1999 WL 826029, at **6-7. However, he
concludes that Nicely is distingu ishab le bec ause the presen t facts are not su fficiently analogous. We respectfully
disagree and find Nicely dispositive.
8
Defense counsel offered no additional argument nor did he raise any objection to this solution.
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latter was satisfied by the above colloquy. Moreover, while the defendant did list this abuse in his
aforementioned pre-trial notice, we do not see that he argued in the jury-out hearing the need for
testimony concerning the actual molestation. Unlike the defendant’s brief, which now suggests that
such proof should have been allowed to further explain the victim’s knowledge of sexual matters,
at trial defense counsel claimed that the inquiry was needed for impeachment purposes with respect
to the delay in reporting the sexual abuse in this case. "It is elementary that a party may not take one
position regarding an issue in the trial court, change his strategy or position in mid-stream, and
advocate a different ground or reason in this Court." State v. Dobbins, 754 S.W.2d 637, 641 (Tenn.
Crim. App. 1988). Thus, this portion of the defendant’s issue merits no relief either.
Sentencing
In his second issue the defendant contends that the trial court improperly applied two
enhancement factors at the conclusion of his sentencing hearing. The alleged erroneously utilized
factors involve the trial court’s finding (1) that particularly great personal injuries were inflicted on
the victim and (2) that the defendant committed the offense against the victim to gratify his desire
for pleasure or excitement. See Tenn. Code Ann. §§ 40-35-114(6), (7).
A. Standard of Review
“When reviewing sentencing issues . . . , the appellate court shall conduct a de novo review
on the record of such issues. Such review shall be conducted with a presumption that the
determinations made by the court from which the appeal is taken are correct." Tenn. Code Ann. §
40-35-401(d). "However, the presumption of correctness which accompanies the trial court's action
is conditioned upon the affirmative showing in the record that the trial court considered the
sentencing principles and all relevant facts and circumstances." State v. Ashby, 823 S.W.2d 166,
169 (Tenn. 1991). In conducting our review, we must consider the defendant's potential for
rehabilitation, the trial and sentencing hearing evidence, the pre-sentence report, the sentencing
principles, sentencing alternative arguments, the nature and character of the offense, the enhancing
and mitigating factors, and the defendant's statements. Tenn. Code Ann. §§ 40-35-103(5), -210(b);
Ashby, 823 S.W.2d at 169. We are to also recognize that the defendant bears “the burden of
demonstrating that the sentence is improper." Id.
B. Summary of Sentencing Hearing Facts and the Trial Court’s Findings
Moving more specifically to the facts of this case, the defendant received a sentence of ten
years for his aggravated sexual battery conviction and twenty-three years for his rape of a child
conviction. As mentioned previously, these sentences were then set to run concurrently resulting in
an effective sentence of twenty-three years.
At the sentencing hearing for the defendant, the State presented testimony from the victim’s
mother. Within her account this witness provided information concerning the prior molestation at
the foster home. She also stated that when the defendant had originally come to Kentucky to visit
the victim, she and her husband sat down with the defendant and told him about the previous abuse.
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They further disclosed other activities of a sexual nature in which the victim had engaged including
the incident with the victim’s step-brother. Moreover, the mother stated that she had told the
defendant that T. E. was very sensitive and confused. When asked by the prosecution about how T.
E. was doing after the events forming the basis for these charges, the witness indicated that the
victim was drinking; being very promiscuous; having difficulty trusting others, including her step-
father; etc. In sum, the mother stated that the victim seemed intent on “destroy[ing] her own life.”
On cross-examination, this witness admitted that while she had received a significant amount of
counseling, she had no degree in psychiatry or counseling. Additionally, she essentially agreed that
she was not “qualified to make an assessment on psychological issues.” During her testimony this
witness also revealed that T. E. has received minimal professional counseling after the abuse by her
father because the victim does not want to discuss it.
In presenting his proof, the defendant called four witnesses. One of these individuals testified
that the defendant had been his employee and that he had trusted the defendant with his business.
This witness further stated that the defendant had been quite reliable and had a good reputation in
the community. The second witness stated that he had worked with the defendant at an earlier job
and found him to be both trustworthy and industrious. The third gentleman indicated that he had
known the defendant for six years and “would be proud to call [the defendant his] brother.” Finally,
the defense called the defendant’s fiancee, Debbie Riesen, who indicated that she still intended to
marry the defendant and had been with him through both trials.
Beyond these witnesses the pre-sentence report and the victim impact statement were
submitted for the trial court’s review. Subsequently, the trial court heard arguments from both sides
before announcing the defendant’s sentences and the rationale allegedly supporting them.
In arriving at the sentences imposed, the trial court found applicable one mitigating factor
and three enhancement factors. The former involved the defendant’s having “been a law-abiding
citizen”, been gainfully employed throughout his life, and been trusted by his neighbors, co-workers,
and employers. See Tenn. Code Ann. § 40-35-113(13). Regarding enhancement, the trial court
found the aforementioned challenged factors applicable along with the fact that the defendant had
abused a position of trust by committing these offenses against his child. See Tenn. Code Ann. § 40-
35-114(15). In assigning weight to the enhancement factors, the lower court clearly stated that it
placed little emphasis on its finding that the crimes had been committed to satisfy the defendant’s
desire for pleasure and excitement. It thereafter imposed the ten- and twenty-three-year concurrent
sentences.
C. Particularly Great Injuries Suffered by the Victim
With this background we first consider whether the trial court incorrectly imposed
enhancement factor (6), that the injuries suffered by the victim were particularly great. Citing
caselaw, the defendant asserts that expert testimony is necessary to support the utilization of this
factor with regard to emotional injury. See, e.g., State v. Spratt, 31 S.W.3d 587, 608 (Tenn. Crim.
App. 2000). The State concedes that such proof is necessary but contends that T. E.’s mother
qualified as an expert on the emotional state of her daughter.
However, in State v. Arnett, 49 S.W.3d 250 (Tenn. 2001), a decision filed after the briefing
and oral arguments in this case, the Tennessee Supreme Court clearly stated that while expert
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testimony may be helpful to prove the existence of this factor it is not a prerequisite for the
application of this factor in sentencing. See id. at 260. More specifically, our supreme court held
that application of this factor is appropriate where there is specific and objective
evidence demonstrating how the victim's mental injury is more serious or more
severe than that which normally results from this offense. Such proof may be
presented by the victim's own testimony, as well as the testimony of witnesses
acquainted with the victim.
Id. The supreme court further provided:
Specific, objective examples . . . of the disabling effects of the victim's mental injury
obviate the need for expert proof. On the other hand, where the State does not offer
specific evidence of the victim's "particularly serious" injuries, the trial court will not
be justified in applying the enhancement factor to increase a defendant's sentence.
State v. Kissinger, 922 S.W.2d 482, 488 (Tenn. 1996); see, e.g., State v. Melvin, 913
S.W.2d 195, 203-04 (Tenn. Crim. App. 1995) (rejecting application of this factor
where the mother of the victim testified that the victim was "highly nervous," and
where the victim refused to undergo a physical examination and psychological
counseling, testifying that she can "deal with it . . . [and] can block things out if [she
doesn't] want to remember").
Id. at 261.
Beyond this guidance, Arnett does not indicate how courts are to determine the typical
emotional/mental injuries associated with any given crime so as to establish a point of comparison
for the application of this factor in a particular case. Nevertheless, the supreme court did find the
emotional and psychological injuries sustained by the victim in Arnett sufficient to establish the
existence of this enhancement factor; thus, the injuries catalogued in that case provide this Court
with some guidance as to the propriety of applying factor (6) to the instant case.
In Arnett, the supreme court noted the extensive counseling undertaken by the victim and
“her need for prescription medication.” 9 Id. at 261. The trial court had observed that both the
counseling and medication were necessary for the victim to function daily and to overcome her fear
of another attack. Id.
From the victim impact statement in the instant case, we observe that the victim indicates
that she is distrustful and fearful of older men because of the defendant’s actions. As noted above,
T. E.’s mother confirmed that the victim experiences difficulties trusting others, even including T.
E.’s step-father. The victim further states that she cannot express her feelings in any other manner
than by crying and that she cannot fully provide a written explanation of how her father’s abuse has
hurt her. Again her mother’s testimony corroborates the victim’s difficulty in expressing and dealing
9
Over a two-year period since the offense, the Arn ett victim had “continuous psychological counseling” and
took anti-depressants. See Arn ett, 49 S.W.3d at 261.
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with the defendant’s actions as evidenced by the victim’s problem in talking to her mother and/or
a counselor about the events. The extent to which the victim is torn is made evident by her written
statement concerning him: “In the since [sic] of what he done [sic] to me[,] I hate him, but he’s my
father and I love him because of that.” In addition, the proof supports that T. E. is engaging in
dangerous behavior such as sexual promiscuity. At the time of sentencing, her mother was aware of
six people with whom her daughter had slept within the previous six months.
Unquestionably, T. E. has experienced numerous tragic events in her short life and evidences
various emotional scars. Some of her behavior has likely been influenced by incidents other than the
offenses at issue here. In her mother’s candid estimation, the victim was a confused and sensitive
girl when she went to live with her father. However, now the record reflects that T. E. seemingly has
no regard for her life. In support of this factor, the trial court found that after the defendant’s crimes
the victim “no longer cares about herself.” The lower court describes her as uncommunicative,
somewhat “despondent,” engaging in reckless and unnatural sexual behavior, etc., since the offenses
occurred. Specific, objective examples of her behavior outlined above help to buttress this claim.
Therefore, while some form of expert testimony may have been helpful, we find the injuries
suffered here equally as compelling as those suffered by the victim in Arnett. See id. As such, the
record does not reflect an abuse of the trial court’s discretion in applying this factor, and this portion
of the defendant’s issue lacks merit.
D. Desire for Pleasure or Excitement
We next consider the propriety of the trial court’s finding applicable enhancement factor (7),
dealing with whether the defendant committed the offenses to gratify his desire for pleasure or
excitement. See Tenn. Code Ann. § 40-35-114(7). With respect to the aggravated sexual battery
conviction, the State concedes that this factor may not be utilized because it is an element of the
offense. We agree that this should not have been a consideration in the imposition of the defendant’s
ten-year sentence. See, e.g., Kissinger, 922 S.W.2d at 490. Nevertheless, our supreme court has held
that because pleasure or excitement is not an essential element of the offense of rape, Tennessee
Code Annotated section 40-35-114(7) may be used to enhance a defendant's sentence for such
offense. See, e.g., id. at 489.10
The State, however, bears the burden of demonstrating that the offender was motivated by
a desire for pleasure or excitement. Spratt, 31 S.W.3d at 608. Caselaw has provided that this
motivation has been proven when "overt sexual displays were made, such as when a defendant
fondled, kissed, or behaved in a sexual manner, or when the perpetrator acted while making sexually
explicit remarks." State v.Williams, 920 S.W.2d 247, 260 (Tenn. Crim. App. 1995); see also, e.g.,
Arnett, 49 S.W.3d at 262; State v. Michael Anderson Peek, No. E1998-00038-CCA-R3-CD, 2000
WL 565129, at *27 (Tenn. Crim. App. at Knoxville, May 3, 2000).
In deciding that this factor applied here, the trial court observed “that there had been conduct
of a sexual nature” occurring over a period of time leading up to the night of the instant offenses.
10
Though Kissinger only specifically addresses rape and aggravated rape, the same reasoning applies to rape
of a child. See Tenn. Code Ann. §§ 39-13-501,-502,-503,-522.
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The trial court thereafter concluded that the only reasonable inference to be drawn from such conduct
was that the acts were “done for the purpose of pleasure or excitement.”
As above-outlined, the State had presented proof at trial that the defendant had been french-
kissing his daughter over a period of time. On the night of the offenses, the defendant once more
leaned over and began french-kissing T. E. After returning from the bathroom, the defendant
removed the victim’s shorts and panties. He pulled her night shirt up around her neck and began
rubbing her breasts. He then fondled his daughter between her legs before penetrating her digitally
and moving his fingers in a circular manner. Furthermore, while this was not the act which the
prosecution elected to submit to the jury, the victim also testified that the defendant proceeded to
penetrate her vagina with his penis, moving up and down and sideways while doing so. These overt
sexual displays support the use of enhancement factor (7) here.
We also observe that the defense understandably did not challenge the jury’s determination
that the touching supporting the aggravated sexual battery could “be reasonably construed as being
for the purpose of sexual arousal or gratification.” Tenn. Code Ann. § 39-13-501(6); see also Tenn.
Code Ann. § 39-13-504(a). This was a rational conclusion supported by the facts presented. As such,
the trial court could and did logically infer that the accompanying rape was motivated by the same
desire. When considered in the aggregate, the evidence does not point to an abuse of discretion
involving the sentencing court’s use of this enhancement factor.
Therefore, the defendant’s contention concerning the improper use of enhancement factor
(7) has merit with respect to his aggravated sexual battery conviction. However, we find that the
defendant’s challenge to the trial court’s utilizing this factor in determining his sentence for the child
rape conviction is meritless.
Because the trial court did err in applying Tennessee Code Annotated section 40-35-114(7)
to the defendant’s aggravated sexual battery conviction, we address whether the sentence imposed
is likewise improper. Aggravated sexual battery is a class B felony, and the defendant
unquestionably falls within the range of eight to twelve years based upon his prior record or the lack
thereof. See Tenn. Code Ann. § 40-35-112(a)(2). With this in mind, we are to then balance the
enhancing and mitigating factors. To do so, we must begin at the presumptive minimum sentence
and enhance the sentence within the range for existing enhancement factors then reduce the sentence
within the range for existing mitigating factors. Tenn. Code Ann. § 40-35-210(e). No particular
weight for each factor is prescribed by the statute. See State v. Santiago, 914 S.W.2d 116, 125 (Tenn.
Crim. App. 1995). The weight given to “each factor is left to the trial court’s discretion” as long as
it comports with the sentencing principles and purposes of our code and as long as its findings are
supported by the record. Id.
Upon reviewing the facts presented, we find enhancement factors (6) and (15) and mitigating
factor (13) appropriate. Furthermore, we conclude that the violation of the abuse of a position of
private trust here should carry great weight. See Tenn. Code Ann. § 40-35-114(15). This defendant
re-entered his biological daughter’s life; was made aware of her troubled history; and then subjected
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her to further abuse. A sentence two years above the minimum is supported by the balance of factors
presented in the record before us.11
Correction of Errors in the Judgment Form
Though this matter was not raised, we have observed an error in the rape of a child judgment
form which requires correction. In the “Special Condition” portion of the form is written:
“PURSUANT TO T.C.A. 40-35-501 (i) THE DEFENDANT WAS ADVISED CONCERNING THE
RELEASE ELIGIBILITY PERCENTAGE OF THE OFFENSE CONVICTED SHALL BE 100%
OF THE SENTENCE IMPOSED LESS SENTENCE CREDITS EARNED; HOWEVER, NO
SENTENCE REDUCTION CREDITS AUTHORIZED SHALL EXCEED 15%.” This phrasing
leaves the impression that the defendant may receive some reduction in the time that he is to serve
on this charge.
Nevertheless, Tennessee Code Annotated section 39-13-523 states:
(b) Notwithstanding any other provision of law to the contrary, a multiple rapist or
a child rapist, as defined in subsection (a), shall be required to serve the entire
sentence imposed by the court undiminished by any sentence reduction credits such
person may be eligible for or earn. A multiple rapist or a child rapist shall be
permitted to earn any credits for which such person is eligible and such credits may
be used for the purpose of increased privileges, reduced security classification, or for
any purpose other than the reduction of the sentence imposed by the court.
(c) The provisions of title 40, chapter 35, part 5, relative to release eligibility status
and parole shall not apply to or authorize the release of a multiple rapist or child
rapist, as defined in subsection (a), prior to service of the entire sentence imposed by
the court.
(d) Nothing in the provisions of title 41, chapter 1, part 5, shall give either the
governor or the board of probation and parole the authority to release or cause the
release of a multiple rapist or child rapist, as defined in subsection (a), prior to
service of the entire sentence imposed by the court.
Tenn. Code Ann. § 39-13-523(b), (c), (d). While Tennessee Code Annotated section 40-35-501(i)(1)
and (2) seem to allow a reduction, the provision immediately following states: “Nothing in this
subsection shall be construed as affecting, amending or altering the provisions of § 39-13-523, which
requires child rapists and multiple rapists to serve the entire sentence imposed by the court
undiminished by any sentence reduction credits.” Tenn. Code Ann. § 40-35-501(i)(3); but see Tenn.
Code Ann. § 40-35-501(i)(1), (2). Thus, though we do not understand the rationale for listing rape
11
We also affirm the twenty-three-year sentence received by the defendant for the rape of a child. Since this
offense is an A felony, the starting poin t for sen tencin g determ ination s is the m iddle of the rang e. See Tenn. Code Ann.
§ 40-35-21 0(c). As above-noted, the defendant would be a Range I offender; thus, a twenty-year sentence is the mid-
point against which the trial court was to balance any mitigating and enhancement factors. Because we found no error
in the enhancement factors utilized by the trial court and, again, as the abuse of the position of private trust was so
egregiou s in this ca se, the re cord supp orts the senten ce im posed by the trial cou rt.
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of a child among the offenses in Tennessee Code Annotated section 40-35-501(i)(2), the
aforementioned provisions of the Code specifically indicate that a convicted child rapist is not to
receive any reduction in his or her sentence. See Tenn. Code Ann. §§ 39-13-523 and 40-35-501(i)(3).
We, therefore, remand this matter for entry of a corrected judgment form reflecting that, pursuant
to Tennessee Code Annotated section 39-13-523, the defendant’s sentence is to be served at one
hundred percent without the possibility of a reduction in time.
Conclusion
For the foregoing reasons we find that the defendant’s issues do not merit relief. Accordingly,
the judgment of the trial court is AFFIRMED. However, the case is REMANDED for correction of
the rape of a child judgment form.
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JERRY L. SMITH, JUDGE
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