State of Tennessee v. Stevie Michael Irwin, Jr.

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

March 22, 2016 Session

STATE OF TENNESSEE v. STEVIE MICHAEL IRWIN, JR.

Appeal from the Criminal Court for Knox County

No. 96977 Jon Kerry Blackwood, Senior Judge

No. E2015-01448-CCA-R3-CD – Filed May 11, 2016

_____________________________

Defendant, Stevie Michael Irwin, Jr., was found guilty of two counts of rape of a child,

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

count of incest. On appeal, Defendant challenges the failure of the State to properly elect

offenses; the sufficiency of the evidence for the rape and attempted rape convictions; dual

convictions for rape of a child in Counts One and Three as violating his right to due

process; and his sentence as excessive. After a review of the record, and in light of the

recent supreme court holding in State v. Qualls, 428 S.W.3d 1 (2016), we affirm the

convictions and sentences.

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

TIMOTHY L. EASTER, J., delivered the opinion of the Court, in which JOHN EVERETT

WILLIAMS and NORMA MCGEE OGLE, JJ., joined.

Robert R. Kurtz, Knoxville, Tennessee, for the appellant, Stevie Michael Irwin, Jr.

Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Senior Counsel;

Charme Allen, District Attorney General; and Ashley McDermott, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

This is Defendant‟s direct appeal from a Knox County jury‟s verdict for various

sexual offenses committed by Defendant against his minor daughter over a forty-five

month period. The trial imposed an effective sentence of thirty-five years in the

Tennessee Department of Correction.

In April of 2011, Defendant was charged in an eight-count presentment by the

Knox County Grand Jury with five counts of rape of a child, one count of attempted rape

of a child, one count of aggravated sexual battery, and one count of incest for events

occurring between February 1, 2007, and October 19, 2010. The charges were based on

allegations made by Defendant‟s daughter, the victim.1 Specifically, the presentment

alleged rape of a child in Count One by virtue of penile/vaginal penetration; rape of a

child in Count Two by penile/oral penetration; rape of a child in Count Three by

digital/vaginal penetration; rape of a child in Count Four by object/vaginal penetration;

attempted rape of a child in Count Five by attempted penile/anal penetration; rape of a

child in Count Six by causing the victim‟s step-brother to engage in penile/vaginal

penetration; aggravated sexual battery in Count Six by oral/breast contact; and incest in

Count Seven by penile/vaginal penetration of his daughter.

At the time the abuse started, the victim was approximately four years of age. She

lived in a trailer with Defendant, her mother, her older step-brother,2 and her two younger

siblings. The victim and the step-brother slept on the couch at the time because the

window in the victim‟s bedroom was broken.

The victim reported the abuse to her mother when she was approximately eight

years of age and in the third grade. She did not remember exactly when the abuse started

but stated that it happened almost every day for a long period of time. Her mother, in

turn, reported the abuse to the Department of Children‟s Services. The victim was taken

to the hospital where an exam was performed. Detective Brian Williams of the Knox

County Sheriff‟s Office was assigned to the case. He interviewed Defendant, the victim,

the step-brother, and the mother. After a search of the home, several items were seized:

(1) two pairs of girl‟s panties; (2) men‟s underwear; (3) bed sheets; (4) a pillow sham; (5)

a blanket; (6) a comforter; (7) five bath towels; and (8) a piece of plastic sheeting.

Buccal swabs were taken of all four people interviewed.

Jennifer Milsaps, a Special Agent forensic scientist in the serology and DNA unit

of the Tennessee Bureau of Investigation Crime Lab in Knoxville, testified at trial.

According to Special Agent Milsaps, the results of testing the pair of green panties seized

from the house indicated the presence of the DNA of the victim and Defendant in the

crotch area. The mother and step-brother were excluded as possible contributors. No

other items were submitted for testing. Special Agent Milsaps agreed that DNA could be

1

It is the policy of this Court to protect the identity of the victims of sexual abuse.

2

The step-brother is approximately four years older than the victim.

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transferred from other clothing or from a towel to the panties. The vaginal swabs taken

from the victim on the night she made the allegations were negative for the presence of

sperm.

The victim was twelve years old at the time of trial. According to the victim,

Defendant started the abuse by “touching” her “breasts and private parts” with his hands

and mouth. Defendant also touched her vagina, using “his penis,” “his fingers,” and “his

mouth.” The victim testified that it went on “for like, a long time” and that her step-

brother was often home at the time of the abuse. The victim described being raped

“almost every day.” She vividly described Defendant‟s ejaculations as “clear-ish, but yet

like a - - clear-ish, white-ish, but yellow-ish stuff” that Defendant referred to as “baby

juice.” Defendant also put “just his finger” inside her vagina, and she recalled him

“sucking” on her breasts. Defendant also licked her vagina. On one particular occasion,

Defendant sat on the victim while she was lying on her stomach and attempted to put his

penis in her “butt.” Defendant was unsuccessful because the victim was “moving.” The

abuse happened in Defendant‟s bedroom.

The victim also described an occasion on which Defendant “tried to make [her

step-brother] do it with [her].” The victim‟s step-brother corroborated this particular

episode, explaining that he was around twelve years old at the time and both he and the

victim were naked in Defendant‟s bedroom. Defendant was “giving instructions.” For

example, Defendant told them to take off their clothes and instructed the victim to give

her step-brother oral sex. The step-brother was unable to “get [it] up” and eventually

“freaked out” and left. Defendant implied that he would have sex with the victim after

the step-brother left the room.

On cross-examination, the victim admitted that she had experienced a wide variety

of mental and personality problems since early childhood, including visual and auditory

hallucinations. The victim also reported that she had been under the care of ten different

therapists since being separated from her family and that she had lived in a total of nine

different facilities, group homes, and/or foster homes in the four years since she reported

the abuse. The victim admitted various behavioral difficulties while in group care,

including kicking a pregnant foster mother and slamming someone‟s hand in a door out

of anger. The victim also admitted that she previously told case workers with the

Department of Children‟s Services that Defendant only touched her breast one time with

his hand.

The step-brother testified that he recalled hearing “noises” often coming from

Defendant‟s bedroom. These noises happened when his mother was not present at the

home. Some of the noises sounded like “moaning.” He did not actually see anything

happen between Defendant and the victim.

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The step-brother admitted that he and the victim engaged in sexual “penetration”

on more than one occasion, starting around the time the victim was five years old and he

was eight. The step-brother learned about sexual things from Defendant and “this kid

named T[].” He explained that Defendant taught him about sex, even making him a

“penis growing pump” out of a tube when he was eight or nine years of age. The first

time anything happened between the step-brother and the victim, the two were “literally

rubbing on each other.” The step-brother also admitted that he and “T[]” had sex with

the victim and that he had convinced the victim to have sex with other people.

At the conclusion of the State‟s proof, Defendant moved for a judgment of

acquittal on Counts Two (alleging penile/oral penetration), Four (alleging object/vaginal

penetration), and Six (alleging penile/vaginal penetration of victim by the step-brother at

the direction of Defendant). The State conceded as to Counts Two and Four. The trial

court agreed with the concession and amended Count Six to attempted rape of a child

based on the proof presented at trial. Defendant elected not to testify and did not present

additional proof.

The jury found Defendant guilty of rape of a child in Counts One (alleging

penile/vaginal penetration) and Three (alleging digital/vaginal penetration). Additionally,

Defendant was found guilty of two counts of attempted rape of a child in Count Five

(alleging attempted penile/anal penetration) and Count Six (alleging attempted

penile/vaginal penetration of victim by the step-brother at the direction of Defendant) as

well as one count of aggravated sexual battery in Count Seven (alleging oral/breast

contact) and one count of incest in Count Eight. The trial court sentenced Defendant to

twenty-five years for each conviction for rape of a child, ten years for each conviction for

attempted rape of a child, ten years for the conviction for aggravated sexual battery, and

five years for the conviction for incest. The trial court ordered partial consecutive

sentences, imposing a total effective sentence of thirty-five years.

Defendant filed a timely notice of appeal after the denial of a motion for new trial.

On appeal, Defendant argues that the State failed to properly elect the particular offenses

to be submitted to the jury; that the evidence was insufficient to support the convictions

for two counts of rape of a child and two counts of attempted rape of a child; that the trial

court improperly sentenced Defendant to an effective sentence of thirty-five years; and

that the convictions for rape of a child in Counts One and Three violate due process

because they stem from a continuous criminal episode.

I. Election of Offenses

Defendant argues that the trial court erred by failing to require the State to

properly elect the offenses submitted to the jury. Specifically, Defendant insists that

Count One alleged penile-vaginal penetration occurring between on or about February 1,

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2007, and October 19, 2010, and Count Three alleged digital-vaginal penetration

occurring between on or about February 1, 2007, and October 19, 2010, and that the

testimony at trial “did not establish any detail that would guarantee that [Defendant]

received a unanimous verdict on Counts [One] and [Three].” Defendant admits that he

did not object at trial but raised the issue in a motion for new trial. Defendant argues that

he is entitled to plain error relief. The State argues that Defendant waived the issue at

trial and is not entitled to plain error relief.

The Tennessee Constitution protects the right of a criminal defendant to a

unanimous jury verdict. See State v. Lemacks, 996 S.W.2d 166, 169-70 (Tenn. 1999).

Our supreme court has held that when the evidence indicates that the defendant has

committed more offenses against a victim than the number of offenses charged, the

prosecution must elect the particular offense as charged in the indictment for which

conviction is sought. See State v. Adams, 24 S.W.3d 289, 294 (Tenn. 2000); State v.

Brown, 992 S.W.2d 389, 391 (Tenn. 1999). The doctrine of election is particularly

important in sexual abuse cases against children that occur over a lengthy period of time

because each unlawful act is a separate substantive offense rather than a continuous

offense. Tidwell v. State, 922 S.W.2d 497, 501 (Tenn. 1996). “The two primary

purposes of this election requirement are „to preserve a criminal defendant‟s right under

the state constitution to a unanimous jury verdict, and to allow the State some latitude in

the prosecution of criminal acts committed against young children who are frequently

unable to identify a specific date on which a particular offense was committed.‟” State v.

Knowles, 470 S.W.3d 416, 423-24 (Tenn. 2015) (quoting State v. Rickman, 876 S.W.2d

824, 828 (Tenn. 1994)).

Historically, the State “[wa]s not required to identify the particular date of the

chosen offense” in cases of ongoing sexual abuse, and “a particular offense c[ould] often

be identified without a date.” State v. Shelton, 851 S.W.2d 134, 137 (Tenn. 1993). If

“the evidence indicate[d] various types of abuse, the prosecution [could] identify a

particular type of abuse and elect that offense,” or the prosecutor could ask the child

victim “to describe unique surroundings or circumstances that help to identify an

incident,” which could include “identify[ing] an assault with reference to a meaningful

event in [the child‟s] life, such as the beginning of school, a birthday, or a relative‟s

visit.” Id. at 138. Until recently, the Tennessee Supreme Court “concluded that „[a]ny

description that will identify the prosecuted offense for the jury is sufficient.‟” Knowles,

470 S.W.3d at 424 (quoting Shelton, 851 S.W.2d at 138).

Since the filing of the briefs in this case but prior to oral argument, the Tennessee

Supreme Court issued its decision in State v. Qualls, 428 S.W.3d 1 (Tenn. Jan. 28, 2016),

a case with an issue very similar to the issue presented herein. In Qualls, the defendant

was indicted for thirty-seven counts of sexual battery by an authority figure and one

count of incest for abuse of his daughters and an adopted daughter. Id. at 9. At the first

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trial, the defendant was convicted of all the charges. He appealed, arguing that the State

failed to properly elect the facts used to form the basis for each of the offenses. The State

conceded error; this Court reversed and remanded the case for a new trial. See State v.

Jimmy Dale Qualls, No. W2010-02523-CCA-R3-CD, 2012 WL 939001, at *3 (Tenn.

Crim. App. Mar. 14, 2012), no perm. app. filed. On retrial after remand, Defendant was

again convicted of all the counts as alleged in the indictment. On appeal from the retrial,

Defendant again argued that the State filed to properly elect conduct for which it sought

convictions. See State v. Jimmy Dale Qualls, No. W2013-01440-CCA-R3-CD, 2014 WL

4072098, at *5 (Tenn. Crim. App. Aug. 18, 2014), perm. app. granted (Tenn. Jan. 15,

2015). This Court again determined that the election was inadequate and remanded for a

new trial. The State appealed.

The supreme court granted permission to appeal to determine if the election was

proper. Specifically, the court sought to answer the following question:

whether the election of offenses doctrine, articulated in Burlison v. State,

501 S.W.2d 801 (Tenn. 1973), and reaffirmed in State v. Shelton, 851

S.W.2d 134 (Tenn. 1993), requires the prosecution to identify a single

incident of sexual battery in cases, such as this one, where the child victim

testifies to repeated incidents of sexual contact occurring over a substantial

period of time but does not furnish any specific details, dates, or

distinguishing characteristics as to individual incidents of sexual battery.

Qualls, at 4. The court noted that there were not any cases in Tennessee dealing with so-

called “generic evidence,” where the “victims described with clarity the type of sexual

battery perpetrated on them but failed to identify specifically when each alleged act

occurred.” Id. at 13. The court reviewed the procedures and policies used in other

jurisdictions in generic evidence cases and concluded:

[I]n generic evidence cases[,] the prosecution need not elect a specific

criminal act or incident as the basis of a conviction for each charge.

Instead, the election doctrine may be satisfied in generic evidence cases by

the trial court providing a modified unanimity instruction that allows a

conviction only if the jury unanimously agrees the defendant committed all

the acts described by the victim. However, consistent with prior decisions

involving the election of offenses doctrine, the trial court must determine at

the conclusion of the State‟s case-in-chief whether the proof is sufficiently

specific as to apply the strict election requirement or whether the election

requirement may be satisfied by giving the modified unanimity instruction.

See Knowles, 470 S.W.3d at 423 (stating that election should occur at the

close of the prosecution‟s case-in-chief). We invite the Tennessee Pattern

Jury Instruction Committee to promulgate a pattern jury instruction for use

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in child sexual abuse cases involving generic evidence. See State v. White,

362 S.W.3d 559, 581 (Tenn. 2012) (inviting the Committee to promulgate a

pattern jury instruction for use in trials involving kidnapping and an

accompanying felony charge). Until the Committee develops an

appropriate instruction, trial courts should use the following instruction in

cases involving only generic evidence:

The State has offered proof in its case-in-chief of more

than one criminal act allegedly committed [by the defendant]

[by one for whom the State alleges the defendant is criminally

responsible]. To ensure a unanimous jury verdict [on the

charge] [on each count of the indictment], the State must

prove beyond a reasonable doubt the commission of all of the

acts described by the alleged victim [as occurring within the

time period charged] [as occurring within the time period

charged in each Count of the indictment].

In order to find the defendant guilty, you must

unanimously agree that the State has proven beyond a

reasonable doubt the commission of all of the acts described

by the alleged victim [as occurring within the time period

charged] [as occurring within the time period charged in each

Count of the indictment].

Qualls, at 18-19.

The court went on to review the issue in Qualls for non-structural constitutional

harmless error because the trial court had not given the jury a modified unanimity

instruction. In that case, the two victims described unlawful sexual contact on a regular

basis over an extended period of time as alleged in the indictment. The victims testified

that the abuse occurred at least once a month, with one of the victims testifying that the

abuse happened on a weekly basis. The victims each testified that they saw the abuse

perpetrated on the other victim. The State, during election of offenses, narrowed the time

frame of each individual count down to a one month period of time. The defendant‟s

defense was a blanket denial. Moreover, the trial court instructed the jury that the verdict

had to be unanimous. The court concluded “the erroneous lack of a modified unanimity

instruction did not contribute to the verdict obtained and that the jury‟s verdict would

have been the same had the modified unanimity instruction been given.” Id. at 21.

With the decision in Qualls in mind, we turn to the case herein. The presentment

alleged that the acts took place between February 1, 2007, and October 19, 2010. At the

conclusion of the State‟s proof, Defendant moved to dismiss Counts Two, alleging rape

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of a child by fellatio; Four, alleging rape of a child with an “object”; and Six, alleging

that Defendant caused the step-brother to rape the victim. The State conceded the failure

to prove the elements in Counts Two and Four. The trial court granted the motion for

judgment of acquittal with respect to Counts Two and Four and instructed the jury on the

lesser included offense of attempted rape of a child in Count Six. In other words, the jury

was left with Counts One, Three, Five, Six, and Seven. Defendant is complaining about

the election for Count One, penile/vaginal penetration and Count Three, digital/vaginal

penetration. After the partial grant of the motion for judgment of acquittal, the trial court

determined that the facts set forth “discreet types of penetration, as opposed to discreet

occasions” and that there was not “any election that needs to be done.” The State

responded that any election that was necessary would be “based on what the allegations

are . . . in the actual presentment, as in the description of the penetration . . . .” The State

also noted that the victim described all of the acts as occurring in the bedroom. In

response to the discussion, the trial court crafted a proposed jury instruction as follows:

So the Court could say, the State has offered proof in this case of more than

one alleged[] act committed by the [D]efendant in Counts One and Three.

To ensure a unanimous verdict, the State has relied to elect which

alleged act and so forth. The State has elected to submit for your

consideration that the acts occurring in Count One and Three were the ones

occurring in the bedroom.

Counsel for Defendant agreed and asked the trial court to add “within the time alleged in

the indictment.” It is not clear from the record whether counsel for Defendant made a

valid objection to the proposed charge or form of the election as discussed between the

parties.

In the motion for new trial, Defendant argued that the trial court “erred by failing

to make the State properly elect the particular offenses submitted to the jury” with respect

to Counts One and Three. This Court has repeatedly reminded defendants about the

consequences of the failure to object to an issue at trial and the effect on our review of

such issues on appeal. See Tenn. R. App. P 36(a) (“Nothing in this rule shall be

construed as requiring relief be granted to a party responsible for an error or who failed to

take whatever action was reasonably available to prevent or nullify the harmful effect of

an error.”). Defendant, in a reply brief, insists that this issue is properly preserved by

virtue of the fact that counsel raised it in the motion for new trial. In the alternative,

Defendant argues that he is entitled to plain error relief. The State insists that Defendant

could only get relief via plain error and that he has not established all of the factors

necessary for plain error review.

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We agree with the State that the issue is waived unless Defendant can establish he

is entitled to plain error review. See Tenn. R. App. P. 36(a). To determine whether a trial

error rises to the level of “plain error,” the following five factors must be present:

(a) the record must clearly establish what occurred in 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 error [must be] “necessary to do substantial justice.”

State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d

626, 641-42 (Tenn. Crim. App. 1994)). All five factors must be established by the record

before this Court will recognize the existence of plain error, and complete consideration

of all the factors is not necessary when it is clear from the record that at least one of the

factors cannot be established. Id. at 283.

Both Count One, alleging penile/vaginal penetration, and Count Three, alleging

penile/digital penetration, were described by the victim as happening in the bedroom of

Defendant on many occasions during the period of time described in the indictment. The

testimony of the victim provided what Qualls described as generic evidence: she

“described with clarity the type of sexual battery perpetrated on [her] but failed to

identify specifically when each alleged act occurred. Instead, the victim[] here described

a pattern of abuse that occurred over an extended period of time.” Qualls, at 13. The

jury in this case received the following instruction:

The State has offered proof in its case in chief of more than one act

allegedly committed by the defendant, which the State alleges constitutes

an element of the offenses as charged in Counts One, Three and Eight of

the Indictment.

To ensure a unanimous verdict, the law requires the State to elect

which alleged act testified to the State is - - that the State is relying upon for

your consideration in deciding whether or not the defendant is guilty of this

offense or any lesser offense.

The fact that the Court has required the State to elect does not mean

that the Court has found that the State has carried its burden of proving

those allegations beyond a reasonable doubt. That is for your

determination.

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In this case, the case - - the State has elected to submit for your

consideration that the alleged acts in Counts One, Three, and Eight

occurred in the bedroom within the timeframe of this Indictment.

Members of the jury are to consider only the acts alleged in deciding

whether or not the defendant has been proven guilty beyond a reasonable

doubt as charged in Counts One, Three, and Eight.

The instruction given in this case by the trial court tracks the language of the proposed

instruction in Qualls to be given in generic evidence cases. Defendant has failed to show

that a clear and unequivocal rule of law was breached. Moreover, each count involved a

different type of penetration, indicating “various types of abuse, [so] the prosecution may

identify a particular type of abuse and elect that offense.” Shelton, 851 S.W.2d at 138

(citing State v. Fears, 659 S.W.2d 370, 374 (Tenn.Crim.App.1983)). Finally, Defendant

has not shown that he did not waive the issue for tactical reasons. Therefore, he is not

entitled to plain error review.

II. Sufficiency of the Evidence

Defendant couches his next issue as a challenge to the sufficiency of the evidence

for his convictions for rape of a child in Counts One and Three and convictions for

attempted rape of a child in Counts Five and Six. In reality, Defendant‟s argument

merely reiterates his argument about the failure of the State to make a proper election of

offenses. The State argues that the evidence was sufficient to support the convictions.

Because we have already reviewed Defendant‟s issue with regard to the proper election

of offenses, we will review the sufficiency of the evidence.

When a defendant challenges the sufficiency of the evidence, this Court is obliged

to review that claim according to certain well-settled principles. The relevant question

the reviewing court must answer is whether any rational trier of fact could have found the

accused guilty of every element of the offense beyond a reasonable doubt. See Tenn. R.

App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319 (1979). The jury‟s verdict replaces

the presumption of innocence with one of guilt; therefore, the burden is shifted onto the

defendant to show that the evidence introduced at trial was insufficient to support such a

verdict. State v. Reid, 91 S.W.3d 247, 277 (Tenn. 2002). The prosecution is entitled to

the “strongest legitimate view of the evidence and to all reasonable and legitimate

inferences that may be drawn therefrom.” State v. Goodwin, 143 S.W.3d 771, 775 (Tenn.

2004) (quoting State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). It is not the role of this

Court to reweigh or reevaluate the evidence, nor to substitute our own inferences for

those drawn from the evidence by the trier of fact. Reid, 91 S.W.3d at 277. Questions

concerning the “credibility of the witnesses, the weight to be given their testimony, and

the reconciliation of conflicts in the proof are matters entrusted to the jury as the trier of

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fact.” State v. Wagner, 382 S.W.3d 289, 297 (Tenn. 2012) (quoting State v. Campbell,

245 S.W.3d 331, 335 (Tenn. 2008)). “A guilty verdict by the jury, approved by the trial

court, accredits the testimony of the witnesses for the State and resolves all conflicts in

favor of the prosecution‟s theory.” Reid, 91 S.W.3d at 277 (quoting State v. Bland, 958

S.W.2d 651, 659 (Tenn. 1997)). The standard of review is the same whether the

conviction is based upon direct evidence, circumstantial evidence, or a combination of

the two. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011); State v. Hanson, 279

S.W.3d 265, 275 (Tenn. 2009).

Defendant was charged with rape of a child in Counts One and Three and

attempted rape of a child in Count Five. The trial court reduced the charge in Count Six

alleging Defendant caused the step-brother to engage in penile/vaginal penetration with

the victim from rape of a child to attempted rape of a child prior to submitting the case to

the jury. “Rape of a child is the unlawful sexual penetration of a victim by the defendant

. . . if the victim is more than three (3) years of age but less than thirteen (13) years of

age.” T.C.A. § 39-13-522(a). “Sexual penetration” is defined as “sexual intercourse,

cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part

of a person‟s body or of any object into the genital or anal openings of the victim‟s the

defendant‟s, or any other person‟s body, but emission of semen is not required.” T.C.A.

§ 39-13-501(7). A person commits criminal attempt when he acts with the intent to

complete a course of action and the conduct constitutes a substantial step toward the

commission of the offense. T.C.A. § 39-12-101(a)(3).

At trial, the victim testified that the abuse started when she was four years of age.

With respect to Counts One and Three, the victim described Defendant‟s penetrating her

vagina with “his penis” and “his fingers.” The victim testified that it went on “for like, a

long time” and that she was raped “almost every day.” She was able to give a vivid

description of Defendant‟s ejaculations. With respect to Count Five, the victim described

one particular occasion of attempted anal penetration where Defendant was sitting on the

victim while she was lying on her stomach and Defendant tried to put his penis in her

“butt.” Defendant was unsuccessful because the victim was “moving.” The victim

testified that the events occurred in Defendant‟s bedroom. Additionally, Defendant‟s

sperm was found on a pair of the victim‟s underwear. With respect to Count Six, both

the victim and the step-brother testified that Defendant tried to get the step-brother to “do

it with” the victim. Both the victim and the step-brother independently corroborated this

event and described Defendant as “kind of giving instructions” by telling the victim to

give the step-brother oral sex. Neither the victim nor the step-brother had on clothes at

the time. Defendant wanted them to “do it” but the step-brother “freaked out” when he

could not “get it up.” In our view, the evidence was sufficient to support two convictions

for rape of a child and two convictions for attempted rape of a child.

III. Due Process

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Defendant contends that his convictions for rape of a child in Counts One and

Three violate his right to due process because they stemmed from a single continuous

episode and involved a single criminal intent. To support his argument, defendant cites

State v. Barney, 986 S.W.2d 545 (Tenn. 1999). The State argues that there is doubt about

whether the test announced in Barney is still valid and that there is “nothing in the record

to suggest that the [D]efendant was convicted of two counts of rape of a child that

occurred as a single continuous offense.”

In our view, the evidence in this case does not present a factual scenario that

would be appropriate for review via the test announced in Barney.3 In Count One,

Defendant was convicted of rape of a child by inserting his penis into the victim‟s vagina.

In Count Three, Defendant was convicted of rape of a child by inserting his fingers inside

the victim‟s vagina. The victim testified that the abuse occurred over the course of

several years. There was nothing in the record to suggest that Defendant performed both

of these acts during a single criminal episode. Defendant is not entitled to relief on this

issue.

IV. Sentencing

Defendant insists that the trial court improperly ordered consecutive sentencing.

Specifically, Defendant complains about the trial court‟s reliance on the “extensive

damage” to the victim‟s mental and emotional health without proof of such and the trial

court‟s failure to articulate the relevant factors for consecutive sentencing. The State

counters that the trial court‟s finding that Defendant was convicted of two or more

statutory offenses involving the sexual abuse of a minor that arose from the relationship

between Defendant and the victim and the “sustained period of sexual abuse” supported

the trial court‟s order of consecutive sentencing under Tennessee Code Annotated section

40-35-115(b). Moreover, the State points to the victim‟s own testimony about her four

years in therapy to support the degradation of the victim‟s mental and emotional health as

a result of Defendant‟s abuse.

When a defendant challenges the length or manner of service of a within-range

sentence, this Court reviews the trial court‟s sentencing decision under an abuse of

discretion standard with a presumption of reasonableness. State v. Caudle, 388 S.W.3d

273, 278-79 (Tenn. 2012); State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). This

presumption applies to “within-range sentencing decisions that reflect a proper

3

Although Barney has not yet been expressly overruled, this Court is uncertain as to its continued

validity following State v. White, 362 S.W.3d 559, 578 (Tenn. 2012), and State v. Watkins, 362 S.W.3d.

551, 552 n.34 (Tenn. 2012). See also State v. Christopher Scottie Itzol-Deleon, No. M2014-02380-CCA-

R3-CD, 2016 WL 1192806, at *35 (Tenn. Crim. App. Mar. 28, 2016) (Easter, J., dissenting).

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application of the purposes and principles of the Sentencing Act.” Bise, 380 S.W.3d at

707. A trial court abuses its discretion in sentencing when it “applie[s] an incorrect legal

standard, or reache[s] a decision which is against logic or reasoning that cause[s] an

injustice to the party complaining.” State v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997)

(citing Ballard v. Herzke, 924 S.W.2d 652, 661 (Tenn. 1996)). This deferential standard

does not permit an appellate court to substitute its judgment for that of the trial court.

Myint v. Allstate Ins. Co., 970 S.W.2d 920, 927 (Tenn. 1998). The defendant bears the

burden of proving that the sentence is improper. T.C.A. § 40-35-101, Sentencing

Comm‟n Cmts.

In reaching its decision, the trial court must consider the following factors: (1) the

evidence, if any, received at the trial and the sentencing hearing; (2) the presentence

report; (3) the principles of 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 enhancement and mitigating factors; (6) any

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

practices for similar offenses in Tennessee; (7) any statement by the appellant in his own

behalf; and (8) the potential for rehabilitation or treatment. See T.C.A. § 40-35-210(b);

see also Bise, 380 S.W.3d at 697-98. Additionally, the sentence imposed “should be no

greater than that deserved for the offense committed” and also “should be the least severe

measure necessary to achieve the purposes for which the sentence is imposed.” T.C.A. §

40-35-103(2), (4).

Our supreme court has held that “the abuse of discretion standard, accompanied by

a presumption of reasonableness, applies to consecutive sentencing determinations” “if

[the trial court] has provided reasons on the record establishing at least one of the seven

grounds listed in Tennessee Code Annotated section 40-35-115(b)[.]” State v. Pollard,

432 S.W.3d 851, 859-62 (Tenn. 2013). Thus the imposition of consecutive sentencing is

subject to the general sentencing principles that the overall sentence imposed “should be

no greater than that deserved for the offense committed” and that it “should be the least

severe measure necessary to achieve the purposes for which the sentence is imposed[.]”

T.C.A. § 40-35-103(2), (4). Further, “[s]o long as a trial court properly articulates

reasons for ordering consecutive sentences, thereby providing a basis for meaningful

appellate review, the sentences will be presumed reasonable and, absent an abuse of

discretion, upheld on appeal.” Pollard, 432 S.W.3d at 862 (citing Tenn. R. Crim. P.

32(c)(1) (“The order [for consecutive sentences] shall specify the reasons for this

decision and is reviewable on appeal.”)); see also Bise, 380 S.W.3d at 705.

In fashioning Defendant‟s sentence, the trial court determined that two

enhancement factors applied: (1) that Defendant had a criminal history of two worthless

check convictions in addition to those necessary to establish his range and (2) that

Defendant abused a position of private trust as the biological father of the victim. With

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regard to consecutive sentencing, the trial court determined that Defendant was

“convicted of two or more statutory crimes of sexual abuse that were sustained over a

period of time.” See T.C.A. § 40-35-115(b)(5). The trial court noted “[t]he extensive

damage that this caused in the child‟s mental and emotional health, as well as to the

family in this case,” and found that “the interest of society needs to be protected from the

[D]efendant in this case who has abused a child of such [age] and that the interest of

society requires consecutive sentencing.”

Because the trial court provided reasons on the record establishing at least one of

the statutory grounds for consecutive sentencing, we afford the trial court‟s decision a

presumption of reasonableness. The victim testified that she had suffered both

emotionally and mentally due to the abuse she suffered at the hands of Defendant that

occurred almost every day for several years. After being removed from the home, the

victim reported that she had been under the care of ten different therapists and lived in a

total of nine different facilities, group homes, and/or foster homes in the four years since

she reported the abuse. The victim admitted various behavioral difficulties while in

group care, including kicking a pregnant foster mother and slamming someone‟s hand in

a door out of anger. The victim also admitted that she had experienced a wide variety of

mental and personality problems since early childhood, including visual and auditory

hallucinations. The victim was Defendant‟s biological daughter. Furthermore, the record

shows that the trial court followed the principles and purposes of the Sentencing Act, and

the record supports the trial court‟s findings. We conclude that the trial court did not

abuse its discretion by sentencing Defendant to serve twenty-five years for each rape of a

child conviction, ten years for each attempted rape of a child conviction, ten years for the

aggravated sexual battery conviction, and five years for the incest conviction. The trial

court ordered the rape of a child sentences to be served concurrently with each other but

consecutively to the attempted rape of a child sentence. The remaining sentences were

ordered to be served concurrently, for a total effective sentence of thirty-five years. The

trial court did not abuse its discretion. Accordingly, Defendant is not entitled to relief.

Conclusion

For the foregoing reasons, the judgment of the trial court is affirmed.

_________________________________

TIMOTHY L. EASTER, JUDGE

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