State of Tennessee v. David Michael Blevins

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

March 26, 2014 Session

STATE OF TENNESSEE v. DAVID MICHAEL BLEVINS

Appeal from the Criminal Court for Sullivan County

No. S57180 R. Jerry Beck, Judge

No. E2013-01976-CCA-R3-CD - Filed May 23, 2014

Appellant, David Michael Blevins, was convicted by a Sullivan County jury of three counts

of aggravated sexual battery as lesser-included offenses of the indicted charges, rape of a

child. Following a sentencing hearing, the trial court imposed three consecutive sentences

of ten years each. Appellant raises three issues in this appeal: (1) whether aggravated sexual

battery is a lesser-included offense of rape of a child; (2) sufficiency of the convicting

evidence; and (3) challenges to the length and alignment of his sentences. Following our

review, we affirm the judgments of the trial court.

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

R OGER A. P AGE, J., delivered the opinion of the court, in which C AMILLE R. M CM ULLEN and

J EFFREY S. B IVINS, JJ., joined.

Stephen M. Wallace, District Public Defender; and Terry L. Jordan, Assistant District Public

Defender, Blountville, Tennessee, for the appellant, David Michael Blevins.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Senior Counsel;

Barry Staubus, District Attorney General; and Julie R. Canter, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

I. Facts

These convictions arise from three separate 2003 incidents involving appellant and

his granddaughter, M.B.,1 for which he was indicted for three counts of rape of a child. The

victim disclosed the incidents to her mother in June 2009, and the case was tried in

November 2012.

A. Trial

At appellant’s trial, the State called the victim, M.B., as its first witness. At the time

of trial, she was seventeen years old; at the time of the offenses, she was seven years old.

She testified that appellant was her grandfather and that he lived with her grandmother in

Bristol, Tennessee, during 2003. The victim and her family also lived in Bristol, Tennessee,

during that time, but they moved to Florida at the end of June 2003.

The victim recalled that the basis for the incident alleged in Count One of the

indictment occurred at appellant’s house in May 2003. Appellant took the victim into his

bedroom at night, removed her pants, and touched her in and around her vagina. Appellant

initiated the activity, and the victim did not want to participate. Appellant told the victim that

she should not disclose what had happened because they would both be in trouble and that

he would kill the victim and her family if she disclosed it to anyone. The victim was scared

by these threats. At the time, the victim’s grandmother, sister, and cousin were present in the

home, but they were either downstairs in the den or outside. The incidents forming the bases

of Counts Two and Three of the indictment occurred in mid-June and late June 2003,

respectively, and occurred in the same manner as the first incident.

The victim testified that she disclosed the incidents to her mother while attending a

softball tournament in Chattanooga in 2009. She was then interviewed by Detective

Willoughby in Chattanooga and a representative of the Children’s Advocacy Center. She

stated that she did not disclose the incidents earlier because she was afraid and that she did

not disclose them when her family lived in Florida because appellant did not live nearby and

she did not believe he would “bother” her anymore. The victim also explained that when she

reported that appellant did not place his finger inside her vagina, she meant that his finger

did not penetrate “up” in her vagina “where babies come from” but that he touched the inside

of her vagina “up front.”

1

To protect their privacy, it is the policy of this court to refer to minor victims of sexual offenses

and their immediate family members by their initials.

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On cross-examination, the victim explained that she remembered the approximate

dates of the incidents because she related the first incident to the proximity of her father’s

birthday and the second incident to her father going to Florida.

She further explained on redirect examination that she answered, “No,” to Detective

Willoughby’s question about whether appellant penetrated her vagina with his finger because

she “thought he was referring to the part where babies come out.” She emphasized that

appellant touched “[t]he lip. Inside the lips of it . . . Inside the lips of my vagina.” She then

stated that in 2009, after living in Florida, her family lived with appellant and his wife in

Chattanooga, which precipitated her disclosure to her mother.

The State’s next witness was Barbara Blevins, appellant’s ex-wife, who stated that she

had been married to appellant for thirty-four years and lived with him in May and June 2003.

In 2009, following the victim’s disclosure of the incidents in question, she confronted

appellant with the victim’s accusations. Appellant responded by gathering his belongings

and leaving the residence. As appellant was leaving, he stated, “‘Thirty-four (34) years gone

over one thing.’” In June 2009, Ms. Blevins and appellant communicated by text message.

In one message, appellant wrote, “‘I don’t know if I can take anymore of this. I want to come

home. I really screwed up. Forgive me . . . Yes, I was really stupid . . . .’” Later, he wrote,

“‘Yes, I did what - yes, I did what do you want me to do about it [sic]. Have you called the

police yet? I have called asking for psych help . . . I have admitted what I done [sic] to

officers now. I just want to die and get it over with.’” The State asked Ms. Blevins whether

she had threatened appellant into making the verbal and text message statements, and she

denied having done so.

On cross-examination, Ms. Blevins explained that her son, T.B., was young when she

married appellant and that appellant had adopted him. Later in life, appellant and T.B.

occasionally failed to “get along.” “[F]rom time to time due to financial situations,” it was

necessary for T.B. and his family to live with Ms. Blevins and appellant; one such time

occurred when Ms. Blevins and appellant lived in Chattanooga.

Anthony Gibson, a Chattanooga police officer, testified that he was on patrol on June

22, 2009, and that he responded to a Super 8 Motel about someone making suicide threats.

He encountered appellant, whom Officer Gibson described as “emotionally distraught.”

Appellant was crying and told Officer Gibson that “he didn’t deserve to live; he was a piece

of crap.” Appellant asked to telephone his psychiatric counselor, and Officer Gibson allowed

him to make the call. After speaking with the counselor, appellant told the officer, “‘Ben

thinks I should tell you why I’m so upset.’” Appellant then admitted “that he had

inappropriately touched his granddaughter, [M.B.], between the legs.” Officer Gibson

contacted a detective and transported appellant to Erlanger Hospital for a mental evaluation.

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B. Sentencing

At the sentencing hearing, the State relied upon the enhancement factors that appellant

had a previous history of criminal convictions and criminal behavior in addition to those

necessary to establish the appropriate range, that the offenses were committed to gratify

appellant’s desire for pleasure or excitement, and that appellant abused a position of private

trust. See Tenn. Code Ann. § 40-35-114(1), (7), (14). Appellant advanced the “catch-all”

provision as a mitigating factor, relying on: (1) his having earned a GED, an associate’s

degree, and a bachelor’s degree; (2) his service in the United States Air Force; and (3) his

employment history and financial support of his family. See Tenn. Code Ann. § 40-35-

113(13).

The State presented the victim to testify about the residual effects of the offenses. She

stated that she could not trust anyone, that she needed someone to sit in the bathroom with

her when she showered because she feared appellant would be there, and that she slept with

the television on because she was afraid of appellant coming for her in the dark. She also

experienced nightmares, which caused lack of sleep and lack of focus during waking hours.

In addition, she suffered from anxiety attacks. Finally, the victim stated that appellant had

sexually abused her “more [times] than [she] could count” during the ten-year period of

abuse.

On cross-examination, the victim clarified that appellant had first sexually abused her

when she was four years old and living in Bristol. As a result of her 2009 disclosure in

Chattanooga, charges were filed against appellant in Chattanooga, as well. She said that

incidents occurred in Chattanooga “almost on a daily basis” prior to her June 2009

disclosure.

T.H., the victim’s mother, testified that in 2003, she trusted appellant to care for the

victim. Appellant was later convicted of sexually abusing S.B., who is the victim’s sister and

T.H.’s other daughter. T.H. testified that the victim experienced difficulty trusting others,

even those in authority, and that she suffered emotional breakdowns. She explained that the

victim was afraid to shower alone because in Chattanooga, appellant would often enter the

bathroom and watch the victim shower. The victim even suffered a panic attack the previous

year when she was trying to awaken from general anesthesia; she cried “hysterically,” “‘Get

away from me. Don’t touch me. Don’t hurt me.’” She experienced a similar attack in

Knoxville in 2007 as she was awakening from the effects of anesthesia, and she

hyperventilated and passed out crying when appellant entered the room. However, T.H. did

not realize the cause of the attacks at that time. The victim also continued to undergo

counseling and was being treated for ulcers.

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The trial court considered the “catch-all” factors set forth by appellant as mitigating

factors and appellant’s prior criminal history and behavior as an enhancement factor. See

Tenn. Code Ann. §§ 40-35-113(13), -114(1). Weighing the enhancement factor and the

mitigating factors, the trial court fixed appellant’s sentences for each of the three convictions

at ten years as a Range I offender. In addressing sentence alignment, the trial court applied

factor (2), that appellant was an offender whose record of criminal activity was extensive,

and factor (5), that appellant was convicted of two or more statutory offenses involving

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

the relationship between appellant and the victim, the time span of appellant’s undetected

sexual activity, the nature and scope of the sexual acts, and the extent of residual physical and

mental damage to the victim. See Tenn. Code Ann. § 40-35-115(b)(2), (5). Accordingly, the

trial court aligned appellant’s three convictions consecutively to each other and consecutively

to the Hamilton County sentences appellant was serving at the time.

Appellant’s motion for new trial was unsuccessful, and he now appeals.

II. Analysis

Appellant presents three issues for our review: (1) propriety of the jury instruction on

the lesser-included offense of aggravated sexual battery; (2) sufficiency of the convicting

evidence; and (3) sentencing. Because an error with regard to the jury instructions would

effectively obviate the need for a sufficiency review, we will address that issue first.

A. Jury Instructions

At trial, appellant contested the trial court’s instructions to the jury that set forth

aggravated sexual battery and attempted aggravated sexual battery as lesser-included offenses

of rape of a child. However, in his motion for a new trial, appellant challenged only the

instruction on aggravated sexual battery. Accordingly, our review is limited to the propriety

of that sole instruction.

In his brief, appellant urges this court to employ the double jeopardy analysis

contained in State v. Watkins, 362 S.W.3d 530 (Tenn. 2012), to reach the conclusion that

because “the offenses [of rape of a child and aggravated sexual battery] are not the same .

. . [and] [a] separate conviction for rape of a child and aggravated sexual battery would be

upheld,” aggravated sexual battery is not a lesser-included offense of rape of a child. The

Watkins opinion provides guidance by which trial courts can, prior to trial, consider lesser-

included offenses and determine whether dual convictions based on a single instance of

criminal conduct are permitted without offending the principles of double jeopardy.

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Effective July 1, 1992, the General Assembly removed subsection (a)(4) of the

aggravated rape statute and recodified it as the separate offense of rape of a child. See Tenn.

Code Ann. §§ 39-13-502(a)(4), -522. In 2009, the legislature added provisions to section 40-

18-110 to define certain lesser-included offenses. In that statute, the legislature listed

aggravated sexual battery as a lesser-included offense of aggravated rape but not of rape of

a child. The offenses in this case occurred in 2003, but the trial was not conducted until

November 2012. Therefore, a resolution of this issue necessarily involves a review of the

principles of statutory construction.

In State v. David Lynn Harrison, a case considering retroactive application of

Tennessee Code Annotated section 40-18-110, this court noted that:

“[S]tatutes are presumed to apply prospectively in the absence of clear

legislative intent to the contrary.” State v. Thompson, 151 S.W.3d 434, 442

(Tenn. 2004) (citing Van Tran v. State, 66 S.W.3d 790, 797-98 (Tenn. 2001);

State v. Cauthern, 967 S.W.2d 726, 735 (Tenn. 1998)). If the legislature

intended the amendment to apply retroactively, it could have stated so. See

State v. Odom, 137 S.W.3d 572, 582 (Tenn. 2004) . . . [T]he legislature stated

that the amendment at issue was to take effect on July 1, 2009. Because no

legislative intent to the contrary is shown, we presume that the amended

sections (f) and (g) apply to offenses committed on or after July 1, 2009. We

also note that when a penal statute is amended by a subsequent legislative act,

an offense committed before the amendment “shall be prosecuted under the

statute in effect at the time of the commission of the offense.” T.C.A. §

39-11-112 (2006). We conclude that the issue of whether the trial court

properly instructed the jury on lesser included offenses should be evaluated

under Tennessee Code Annotated section 40-18-110 as it existed at the time

the Defendant committed the offense.

No. E2008-01082-CCA-R3-CD, 2010 WL 3238309, at *10 (Tenn. Crim. App. Aug. 17,

2010) (emphasis added).2

We note an apparent conflict between this rule of statutory construction and our

jurisprudence that addresses analysis of lesser-included offenses. See Chivous Robinson v.

State, No. E2005-01036-CCA-R3-PC, 2006 WL 1381511, at *5 (Tenn. Crim. App. May 19,

2

In David Lynn Harrison, this court noted that until July 1, 2009, the controlling law regarding

applicable lesser-included offenses was the Tennessee Supreme Court’s interpretation of 40-18-110 as

outlined in State v. Burns, 6 S.W.3d 453, 466-67 (Tenn. 1999). Accordingly, as in David Lynn Harrison,

we apply the Burns test to appellant’s appeal.

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2006) (citing Wiley v. State, 183 S.W.2d 317, 328 (Tenn. 2006)). Both Wiley and Chivous

Robinson stand for the proposition that the determination of lesser-included offenses is

analyzed under the controlling law at the time of trial, not the time of commission of the

offense. However, a fact of great import is that those cases dealt with review of this issue

as modified by controlling case law at the time, not by statutory amendment. We discern this

distinction to be critical to our review. Accordingly, because section 40-18-110 was not

amended until 2009, the offenses pre-date the amendment excluding aggravated sexual

battery as a lesser-included offense of rape of a child,3 and amended section 40-18-110 does

not operate to grant appellant relief on this claim.

B. Sufficiency of the Evidence

Appellant challenges the sufficiency of the convicting evidence, citing the victim’s

alleged lack of credibility and unreliability of her as a witness. He also contends that the

State failed to establish that he committed the offenses “for the purpose of sexual arousal or

gratification” as required by statute.

The standard for appellate review of a claim challenging the sufficiency of the State’s

evidence is “whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (citing Johnson

v. Louisiana, 406 U.S. 356, 362 (1972)); see Tenn. R. App. P. 13(e); State v. Davis, 354

S.W.3d 718, 729 (Tenn. 2011). To obtain relief on a claim of insufficient evidence, appellant

must demonstrate that no reasonable trier of fact could have found the essential elements of

the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319. This standard of

review is identical whether the conviction is predicated on direct or circumstantial evidence,

or a combination of both. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011); State v.

Brown, 551 S.W.2d 329, 331 (Tenn. 1977).

3

We must note that although our analysis above forecloses relief from appellant’s convictions,

opinions of this court involving post-2009 offense dates have not vacated aggravated sexual battery

convictions that resulted from a jury verdict of aggravated sexual battery as a lesser-included offense of rape

of a child. See State v. Gerald Branden Fitzpatrick, No. M2012-00186-CCA-R3-CD, 2013 WL 2152506,

at *6 (Tenn. Crim. App. May 20, 2013), perm. app. denied (Tenn. Nov. 18, 2013); State v. Timothy P.

Guilfoy, No. M2012-00600-CCA-R3-CD, 2013 WL 1965996, at *23 (Tenn. Crim. App. May 13, 2013); State

v. Steven D. Pippin, No. E2012-00307-CCA-R3-CD, 2012 WL 6115065, at *5 (Tenn. Crim. App. Dec. 10,

2012), perm. app. denied (Tenn. Apr. 9, 2013); see also Ward, Mark W., Tennessee Criminal Trial Practice

§ 26:6 (2013-2014 ed.).

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On appellate review, “‘we afford the prosecution the strongest legitimate view of the

evidence as well as all reasonable and legitimate inferences which may be drawn

therefrom.’” Davis, 354 S.W.3d at 729 (quoting State v. Majors, 318 S.W.3d 850, 857 (Tenn.

2010)); State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983); State v. Cabbage, 571 S.W.2d

832, 835 (Tenn. 1978). In a jury trial, questions involving the credibility of witnesses and

the weight and value to be given the evidence, as well as all factual disputes raised by the

evidence, are resolved by the jury as trier of fact. State v. Bland, 958 S.W.2d 651, 659 (Tenn.

1997); State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990). This court presumes that the jury

has afforded the State all reasonable inferences from the evidence and resolved all conflicts

in the testimony in favor of the State; as such, we will not substitute our own inferences

drawn from the evidence for those drawn by the jury, nor will we re-weigh or re-evaluate the

evidence. Dorantes, 331 S.W.3d at 379; Cabbage, 571 S.W.2d at 835; see State v. Sheffield,

676 S.W.2d 542, 547 (Tenn. 1984). Because a jury conviction removes the presumption of

innocence that appellant enjoyed at trial and replaces it with one of guilt at the appellate

level, the burden of proof shifts from the State to the convicted appellant, who must

demonstrate to this court that the evidence is insufficient to support the jury’s findings.

Davis, 354 S.W.3d at 729 (citing State v. Sisk, 343 S.W.3d 60, 65 (Tenn. 2011)).

As relative to appellant’s convictions in this case, “[a]ggravated sexual battery is

unlawful sexual contact with a victim by the defendant . . . [where] [t]he victim is less than

thirteen (13) years of age.” Tenn. Code Ann. § 39-13-504(a)(4). Tennessee Code Annotated

section 39-13-501(6) further defines “sexual contact” as “the intentional touching of the

victim’s . . . intimate parts . . . if that intentional touching can be reasonably construed as

being for the purpose of sexual arousal or gratification.” “‘Intimate parts’ includes the

primary genital area, groin, inner thigh, buttock or breast of a human being.” Tenn. Code

Ann. § 39-13-501(2).

The victim testified that on three separate occasions, which she recalled by referencing

them to other events in her life, she stayed overnight at the home appellant shared with his

then-wife, the victim’s grandmother. During those visits, appellant would take the victim

into his bedroom, remove her clothing, and touch her vagina. She specified that he

penetrated her vagina slightly, near the “front” and not “the part where babies come out.”

These incidents occurred when other individuals in the house were either outside or

downstairs. Although the victim’s testimony established the element of penetration, however

slight, it is not necessary that the evidence support that element because the jury found

appellant guilty of aggravated sexual battery, which requires only “unlawful sexual contact.”

Appellant’s specific challenge to the sufficiency of the convicting evidence was the

credibility and veracity of the victim. This court has previously stated,

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[Appellant’s] challenge to the sufficiency of the evidence invites this court to

revisit the question of the victim’s credibility . . . . Because the resolution of

questions of fact, including witness credibility, is within the province of the

jury, we must decline the defendant’s invitation. By its verdict, the jury

accredited the [witness’s] testimony despite its sometimes inconsistent nature

on particular details.

State v. Thompson, 36 S.W.3 102, 107 (Tenn. Crim. App. 2000); see also State v. Stephens,

264 S.W.3d 719, 740 (Tenn. Crim. App. 2007) (noting that appellant’s challenge to the

sufficiency of the evidence was based on the credibility of a witness and that this court will

not discount the testimony of a witness and engage in a re-weighing or re-evaluation of the

evidence on appeal). All witnesses were thoroughly cross-examined, and the jury assessed

the testimony and evidence at trial. We will not substitute our own inferences drawn from

the evidence for those drawn by the jury, nor will we re-weigh or re-evaluate the evidence.

Dorantes, 331 S.W.3d at 379. Appellant is not entitled to relief on this claim.

With regard to appellant’s contention that the State failed to establish that he engaged

in sexual contact with the victim for the purpose of sexual arousal or gratification, this court

has concluded:

In our view, the evidence presented a classic jury question. The victim,

who was less than thirteen years of age at the time of the offenses, testified that

the defendant, while sleeping in the victim’s bedroom, touched her genitals.

According to the victim, this occurred several times. According to the

detective, the defendant, after first denying improper contact, admitted to

having touched the victim’s “front parts” on multiple occasions. The jury

accredited the testimony of the victim, which was its prerogative. A rational

trier of fact could also have found beyond a reasonable doubt that the

defendant’s conduct could “be reasonably construed as being for the purpose

of sexual arousal or gratification.” See Tenn. Code Ann. § 39-13-501(6)

(2003). The verdict resolved the conflicts, if any, in the testimony in favor of

the state. See State v. Summerall, 926 S.W.2d 272, 275 (Tenn. Crim. App.

1995).

State v. Sergio F. Cano, No. M2004-02639-CCA-R3-CD, 2005 WL 2139406, at *3 (Tenn.

Crim. App. June 21, 2004); see also State v. Joseph Hall, No. E2006-02403-CCA-R3-CD,

2007 WL 2917784, at *4 (Tenn. Crim. App. Oct. 9, 2007) (affirming convictions for

aggravated sexual battery based on testimony that appellant touched the victims while they

were playing video games). This is well within the prerogative of the jury. As this court has

stated, “‘[W]e recognize that jurors may use their common knowledge and experience in

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making reasonable inferences from the evidence.’” Id. (quoting State v. Meeks, 876 S.W.2d

121, 131 (Tenn. Crim. App. 1993)). The verdict resolved any conflicts in favor of the State.

Summerall, 926 S.W.2d at 275. Appellant is not entitled to relief.

C. Sentencing

Appellant contends that the trial court erred both in fixing the lengths of his sentences

and in aligning them consecutively to each other and consecutively to a sentence he was then

serving for a Chattanooga conviction.

1. Lengths of Sentences

Appellant’s offenses occurred prior to the 2005 amendments to the Sentencing Act.

Thus, he was given the option of being sentenced in accordance with the applicable law at

the time of the offenses or the current provisions. He elected to be sentenced pursuant to the

pre-2005 Sentencing Act. Tennessee Code Annotated section 40-35-112(a)(1) mandated the

sentencing range for a Range I, Class B felony as eight to twelve years. Section 40-35-210(c)

set forth the presumptive sentence for a Class B felony at the minimum sentence within the

range, adjusted appropriately for enhancement and/or mitigating factors. Appellant contends

that the “principles of sentencing require the court to consider the severity of the offenses[,]

which[,] in this case[,] are minor in that no physical harm occurred to the alleged victim” and

that “the trial court did not consider the potential or lack of potential for rehabilitation or

treatment in this case” or whether counseling would have benefitted appellant.

When an accused challenges the length and manner of service of a sentence, this court

conducts a de novo review4 on the record “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).

We condition this presumption 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). We do not apply the presumption to the legal

conclusions reached by the trial court in sentencing the accused or to the determinations

made by the trial court predicated upon uncontroverted facts. 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.

4

This standard of review should be applied in this case because appellant elected to be sentenced

according to the law in effect prior to the 2005 amendments to the Sentencing Act. In State v. Bise, 380

S.W.3d 682, 707 (Tenn. 2012), the Tennessee Supreme Court modified the appellate standard of review of

sentencing issues from “de novo with a presumption of correctness” to “abuse of discretion with a

presumption of reasonableness.” This change in the law does not affect the outcome of this case because

the new standard grants the trial courts greater discretion than the prior standard.

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1994); State v. Bonestel, 871 S.W.2d 163, 166 (Tenn. Crim. App. 1993), overruled on other

grounds by State v. Hooper, 29 S.W.3d 1 (Tenn. 2000).

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

received at the trial and/or sentencing hearing; (b) the presentence report; (c) the principles

of sentencing; (d) the arguments of counsel about sentencing alternatives; (e) the nature and

characteristics of the offense; (f) any mitigating or enhancement factors; (g) any statistical

information provided by the administrative office of the courts as to Tennessee sentencing

practices for similar offenses; (h) any statements made by the accused in his own behalf; and

(i) the accused’s potential or lack of potential for rehabilitation or treatment. Tenn. Code

Ann. §§ 40-35-103, -210; State v. Taylor, 63 S.W.3d 400, 411 (Tenn. Crim. App. 2001). The

party challenging the sentence imposed by the trial court has the burden of establishing that

the sentence is erroneous. Tenn. Code Ann. § 40-35-401, Sentencing Comm’n Cmts.; Ashby,

823 S.W.2d at 169.

We conclude that appellant has failed to demonstrate that the sentences he received

in this case are erroneous. The trial court considered all of the relevant factors with the

exception of appellant’s amenability to treatment. However, based on appellant’s criminal

convictions for sexual offenses involving the victim’s sister and his convictions for offenses

involving the victim approximately six years after the first period of offenses, we decline to

find error in the trial court’s failure to consider this principle. Following our de novo review,

we affirm the length of appellant’s three ten-year sentences for aggravated sexual battery.

2. Imposition of Consecutive Sentences

The determination by the trial court of consecutive or concurrent sentencing should

not be disturbed on appeal absent an abuse of discretion. State v. Blouvet, 965 S.W.2d 489,

495 (Tenn. Crim. App. 1997). A trial court may, in its discretion, order sentences to run

consecutively to each other if it finds one of seven criteria by a preponderance of the

evidence. Tenn. Code Ann. § 40-35-115(b). Imposition of consecutive sentences must be

“justly deserved in relation to the seriousness of the offense.” Id. § 40-35-102(1). The

length of the resulting consecutive sentence must be “no greater than that deserved for the

offense committed.” Id. § 40-35-103(2).

In this case, the trial court found:

Under T.C.A. 40-35-115, I’m going to consider [appellant] is an offender

whose record of criminal activity is extensive based upon the Chattanooga

convictions. And I think that factor outweighs any other factors that would

favor concurrent sentencing.

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Then I’m going to accept #5. It has some little weight, but not great

weight. The fact that [appellant] was convicted of two or more statutory

offenses involving sexual abuse of a minor with consideration of the

aggravating circumstances arising from the relationship between [appellant]

and [the] victim . . . ; the time span of [appellant’s] undetected sexual activity;

the nature and scope of the sexual acts; and the extent of residual physical and

mental damage to the victim.

Id. § 40-35-115(b)(1), (5). Of the criteria contained in factor (5), appellant seems to contest

only one: that the victim suffered no physical injuries as a result of appellant’s acts.

The relationship between appellant and the victim cannot be contested. Appellant was

the victim’s grandfather, and she was often left in his care. The testimony at trial focused

on a one-to-two-month time frame of appellant’s abuse; however, at the sentencing hearing,

it became clear that the jury did not learn of appellant’s other convictions because the

offenses occurred much later and in a different jurisdiction. The trial court heard testimony

that appellant’s abuse of the victim resumed when her family relocated to Chattanooga,

where he was then living, and that the abuse occurred nearly every day prior to the victim’s

disclosure to her mother.

Our state courts have attempted to delineate the severity of sexual abuse that will

warrant application of consecutive sentencing. See State v. Osborne, 251 S.W.3d 1, 28

(Tenn. Crim. App. 2007) (concluding that evidence of sexual acts including cunnilingus,

fellatio, digital penetration, and masturbation was sufficient to support imposition of

consecutive sentencing); but cf. State v. Cleander Cleon Hartman Jr., No. M2000-02441-

CCA-R3-CD, 2002 WL 65996, at *17 (Tenn. Crim. App. Jan. 17, 2002) (consecutive

sentencing not warranted where contact was limited to touching and fondling, never

escalated, and did not involve penetration or oral contact). In this case, the acts of abuse

were limited to digital penetration. However, the victim was approximately four years of age

when the abuse began. After a hiatus, the victim and her family moved in with appellant and

his wife in Chattanooga, where the abuse began anew. The details of the subsequent

incidents of abuse were not presented at the sentencing hearing; however, the victim testified

that appellant would enter the bathroom and watch her shower.

At the sentencing hearing, the State presented ample evidence regarding the emotional

and mental harm to the victim. We conclude that the trial court did not abuse its discretion

by ordering consecutive sentence alignment. See State v. William James Watt, No. M2012-

01487-CCA-R3-CD, 2014 WL 97291, at *19 (Tenn. Crim. App. Jan. 10, 2014) (concluding

that “based upon the fact that this case involved multiple acts of sexual abuse including

digital penetration and oral sex of the victim . . . , [appellant] being the victim’s mother’s

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stepparent and acting as the victim’s grandparent, and that the victim was in counseling for

the abuse,” application of this factor was warranted). “[C]onsecutive sentences [are]

appropriate in relation to the severity of the offenses and are the least severe measures

necessary to deter [appellant’s] future criminal conduct, to protect society, and to deter others

who are similarly situated and may be likely to commit similar offenses.” Osborne, 251

S.W.3d at 28-29.

CONCLUSION

Based upon our review of the record, the briefs of the parties, the arguments of

counsel, and applicable legal authority, we affirm the judgments of the trial court.

_________________________________

ROGER A. PAGE, JUDGE

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