The opinion
02/09/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs November 16, 2021
STATE OF TENNESSEE v. KENNETH GEORGE ARNOLD
Appeal from the Criminal Court for Hamilton County
No. 296573 Barry A. Steelman, Judge
No. E2020-00383-CCA-R3-CD
The defendant, Kenneth George Arnold, challenges his Hamilton County Criminal Court
jury convictions of rape, aggravated sexual battery, and sexual battery by an authority
figure, challenging the sufficiency of the convicting evidence and the imposition of
consecutive sentences. Discerning no error, we affirm.
Tenn. R. App. P. 3; Judgments of the Criminal Court Affirmed
JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., and JILL BARTEE AYERS, JJ., joined.
Carson William Fallo, Assistant District Public Defender (on appeal and at new trial
hearing); McCracken Poston, Ringgold, Georgia (at sentencing); and Robert N. Meeks,
Chattanooga, Tennessee (at trial), for the appellant, Kenneth George Arnold.
Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant Attorney
General; Neal Pinkston, District Attorney General; and Andrew Coyle and Brian Bush,
Assistant District Attorneys General, for the appellee, State of Tennessee.
OPINION
The Hamilton County Grand Jury charged the defendant with two counts of
rape, one count of aggravated sexual battery, and one count of sexual battery by an
authority figure for offenses committed against the victim, his stepdaughter.
At the defendant’s January 2019 trial, the victim, who was born on August
7, 1998, testified that her mother met the defendant after divorcing her father and moving
in with the victim’s grandparents in Chattanooga. She said that her mother introduced the
defendant to her and her brother shortly before the victim entered the sixth grade. Shortly
after introducing the defendant to the victim and her brother, the victim’s mother began to
take the victim and her brother to spend the weekends with the defendant and his four
children in the defendant’s home. The victim testified that she trusted the defendant, who
“tried to” act as a father to her by setting “rules, punishments, [and] chores.” During this
time, the victim’s father lived and worked in Louisiana, California, and North Carolina.
The victim testified that on an occasion when she was visiting the
defendant’s home for the weekend with her mother and brother, she “was helping either
[the defendant] or his son make a Facebook, and [the defendant] started off with just
rubbing my back, trying to give me, like, a massage.” The victim recalled that she was
seated on the floor and that the defendant was seated on a chair. The defendant “eventually
. . . went under my shirt, and he kept going down farther where my bottom is, and I
squirmed and said ‘no’ or ‘stop,’ and he kept doing it.” She confirmed that the defendant
touched her “bare back” and her bottom “[u]nderneath the clothing.” The victim said that
the defendant “didn’t go all the way down” but only to the “mid” part of her bottom so that
“[h]is whole hand” was inside her pants. She testified that the defendant “[s]miled” and
“giggled” when she told him to stop. The victim said that she did not tell anyone what the
defendant had done because she “was young” and “didn’t know what was going on and
didn’t understand it.”
The victim testified that the defendant married her mother in July 2011,
approximately “[e]ight months to a year” after the incident when the defendant touched her
bottom and shortly before she turned 13. The defendant sold his house, and the newly-
blended family moved in with the victim’s maternal grandparents while they looked for “a
house to fit all of us.” Eventually the family moved into a house in Hixson. The victim
said that, during that time, “a lot of rules or a lot of things were set because of [the
defendant], and mom would go through him before anything, and every punishment or
every rule that was being set was I guess what they both agreed on.” She recalled that
when she asked her mother’s permission to do things, “[h]er response was that she would
talk to [the defendant] and get back to me.” The victim testified that when she asked the
defendant’s permission to do things, such as going to a friend’s house or to a school dance,
the defendant told her that “[f]or me to get what I wanted, he had to get what he wanted,
and he told me what he wanted was what my mom wasn’t giving him at the time.” She
said that, essentially, the defendant “wanted sexual favors out of it.”
The victim testified that the defendant came into her bedroom “at night after
my mom would be asleep” to “[t]ry to get his sexual favors.” She recalled one incident
when the defendant came into her room, took her hand, and forced her to “move [her hand]
up and down on his” erect penis while his pants were off. She said that she told the
defendant, “‘I don’t want to do this.’” The defendant ejaculated “[e]ither on me or in a
towel” that he brought into her room. After this incident, the defendant permitted the
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victim more freedom. She said that she did not tell anyone what had happened because
she was “scared” and “embarrassed.”
The victim testified that the defendant also “wanted to do sexual favors on
me” and that “[h]e thought I would like it or thought I wanted it.” On one occasion, the
defendant came into her room and asked to perform oral sex on her. When she protested,
the defendant told her, “‘Don’t do that. You’re going to get in trouble. I’ll tell your mom.’”
The victim said the defendant’s threat to tell her mother referred to “stuff” that the
defendant had allowed her to do with her friends “that I don’t think any parent would allow
anybody to do.” She recalled that the defendant “took my pants off and said that I would
like it.” The defendant then penetrated the victim’s vagina with his fingers and performed
oral sex on her. That same night, the defendant “masturbate[d] himself and then he put it
. . . all over my belly.”
The victim recalled that after each of their encounters, the defendant “would
tell me he knew what he was doing was wrong, that it’s not . . . godly of him, it’s not what
a father would do, and then he would do it again.” The victim said that the abuse only
“stopped when he confessed to my mom” in 2013. Her mother “was mad” and asked the
victim if she wanted the defendant out of the house. The victim testified that she told her
mother not to kick the defendant out because she was afraid of what might happen to her.
She said that she was also afraid that she might be blamed.
At some point, law enforcement officers approached the victim at school and
“asked me if I was having sex with my stepdad, and I answered it truthfully and said no,
we were not having sex.” She testified that she did not tell the officers about the other
sexual abuse by the defendant because “[t]hey didn’t ask.” Approximately two weeks after
the defendant revealed the abuse to her mother, the victim went to stay with her boyfriend,
referring to him as her “safe spot,” because she “didn’t want to go home.” She recalled
that her mother was pregnant with the defendant’s baby at that time. Eventually, the
defendant and the victim’s mother came to her boyfriend’s house, and the victim “had a
mental breakdown.” The victim recalled that her mother telephoned her father “and said
that she didn’t know what was wrong with me, that I was going crazy and I couldn’t calm
down. They took my car away from me. My dad came two days later and got me.” The
victim moved in with her father in North Carolina.
The victim testified that a “[c]ouple months after” she moved to North
Carolina, the defendant wrote her a letter saying that “[h]e was sorry that he lost my trust,
ruined the relation[ship] with me and my mom.” The letter was exhibited to her testimony,
and she read portions of it. In the letter, the defendant apologized for “destroy[ing] your
trust.”
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During cross-examination, the victim testified that the defendant told her
“[t]hat he was sexually abused, he was hit, he was beat.”
The victim’s mother testified that she divorced the victim’s father in 2008
and moved in with her parents in Chattanooga. She met the defendant via an internet dating
service in 2009. The couple communicated electronically “for probably a month” before
meeting in person. The victim’s mother introduced the defendant to her parents and to her
children, the victim and the victim’s twin brother, at church in May 2009. She said that
after she had dated the defendant “for about a year,” she began to spend weekends at his
home; her children went with her “[s]ometimes.” The victim’s mother testified that she
and the defendant married in July 2011 and that the defendant sold his house around this
same time. The defendant and his children moved into the house the victim’s mother
shared with her children and her parents. After approximately three months, the victim’s
mother and the defendant moved with their children into a house in Hixson.
During the time that the family lived in the Hixson residence, the victim’s
mother was “kind of a strict parent” while the defendant “was a more laid-back parent”
who was “more like friends” with the children. She said that she consulted with the
defendant on parenting decisions regarding the victim and her brother because the
defendant was “my husband and supposed to be head of my household.” The defendant,
however, generally “made decisions without me” regarding his own children. The victim’s
mother recalled that the defendant disclosed to her in December 2012 that he had touched
the victim inappropriately. On the day of the disclosure, she went into the garage where
the defendant was working because she “could tell just by his demeanor and his actions”
that “something was wrong, something was bothering him.” She said that she believed the
defendant “was struggling with work.” The defendant agreed to talk, but he asked her to
take a ride with him to the parking lot of a nearby store. As they sat in their car, the
defendant said “[t]hat he had inappropriately been with” the victim, “that he was
inappropriately touching and looking at her.” The victim’s mother said that “that was just
the final hit. I thought I was going to throw up right there.” She demanded that the
defendant take her home.
The victim’s mother testified that the defendant drove them home and that
she warned him “to stay away” from the victim “until I made a decision.” She spoke with
the victim on the following morning, but the victim “was upset” and “didn’t really want to
talk about it much.” The victim’s mother could not “remember exact words that we had,
but, you know, she didn’t, she didn’t want me to kick him out at that moment.” The victim
confirmed the defendant’s claim that “‘it hadn’t happened lately.’” The victim’s mother
said that she and the victim “kind of just made the decision that we were going to try to
move forward.” She added that the victim “was very scared about people knowing, afraid
of, you know, what would happen if people knew, how would they look at her, just kind of
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wanting to move past it and move forward.” The victim’s mother said that the victim
moved in with her father in October 2014 and that the defendant remained in the home
until December 2014, when she “made him leave.” Over time, the defendant revealed that
his abuse of the victim “started before we even got married, from inappropriately, like,
rubbing her back, going down her backside onto her bottom.” He told the victim’s mother
“[t]hat he masturbated while, like, rubbing [the victim] or touching her either in her vagina
or on her breast” and that he ejaculated “onto [the victim’s] stomach.” He also told her
that he had performed oral sex on the victim and that he had asked the victim to perform
oral sex on him, “but she said no.”
The victim’s mother said that she did not disclose the abuse to the police
because the victim “didn’t want anybody to know. We tried to keep it within our family.”
The victim’s mother became pregnant with the defendant’s child in the latter part of 2013,
and the child was born in June 2014. She eventually reported the abuse in February 2015.
During cross-examination, the victim’s mother said that the defendant told
her that he had been abused as a child but did not disclose “the extent of how many times
or who it was.” The victim’s mother agreed that the victim did not report the abuse to her.
She also agreed that the victim told child services officials that she and the defendant did
not have sex, by which the victim meant that the defendant had not penetrated her vagina
with his penis. The victim’s mother denied encouraging the victim not to report the abuse
but admitted that she “personally did not turn [the defendant] in.” She acknowledged that
the victim continued to live in the family home with her and the defendant for “[a]lmost
two years” following the disclosure of the abuse. She denied, however, that the defendant
was ever alone with the victim after the revelation.
Hamilton County Sheriff’s Department Sergeant Robert Lee testified that he
investigated allegations that the defendant had sexually abused the victim. Upon being
assigned to the case, Sergeant Lee set up a meeting with the defendant and the defendant’s
attorney. A video recording of Sergeant Lee’s interview of the defendant was exhibited to
Sergeant Lee’s testimony and played for the jury. During the interview, the defendant
admitted that he first touched the victim inappropriately while he and the victim’s mother
were dating, saying that he “touched her backside” inside of her clothing. The defendant
said that he also touched “her genitals” on the outside of her underwear and asked to see
her breasts. The victim displayed her breasts to the defendant after he “talk[ed] her into
it.” The defendant told the detectives that he thought the victim was “maybe being flirty
or trying to form a relationship” with him. The defendant said that after he married the
victim’s mother and the family moved into the new house, the victim began coming to him
“directly” when “she wanted to do things and go places” and that he asked her “what’s in
it for me.” He said that the victim “manipulated” him so he “manipulated back” and that
the two “worked a deal out and . . . she was able to, you know, kind of had my vote . . .
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about going places or doing things” and, in return, “she kind of agreed to . . . like masturbate
. . . me.” He explained that “that was, you know, kind of the way the deal sort of started
working out.”
The defendant told the detectives that the first such transaction occurred after
the victim asked for something while they were at the mall. He told the victim that “we
can’t afford that . . . but I can afford it if you’ll do this,” meaning if she would masturbate
him. The victim masturbated him using her hand while they were in her bedroom.
Thereafter, he “would present it” when the victim asked to do “normal things” that she
thought her mother might not agree to like going out with her friends. The defendant said
that he “pressed” the victim to allow him to perform oral sex on her. He added that she
“wasn’t obviously, like, majorly comfortable with agreeing to it.” He recalled two or three
occasions when the victim agreed to stand in the doorway naked while he masturbated.
The defendant insisted that he and the victim did not have sexual intercourse “whatsoever.”
He also denied having penetrated the victim’s vagina with his finger.
The defendant told the detectives that the victim did not want her mother to
find out because she believed her mother would be angry with her. The defendant said that
the abuse continued even after he told the victim he would stop. He said that it was difficult
for him to resist because the victim “continued to come to me for stuff,” adding that he felt
as though the victim was using him. The defendant told the detectives that he only recalled
waking the victim to perform sexual acts on two occasions. On one occasion, he performed
oral sex on her. On another he “asked her if he could masturbate on her” while she lay in
her bed naked from the waist down. He said that on that occasion he ejaculated “just a
little” onto the victim’s stomach. The defendant said that the abuse stopped after he
confessed it to the victim’s mother.
During cross-examination, Sergeant Lee described the defendant as “unique.
He was honest. He seemed to be very honest, remorseful.”
The State rested, and following a Momon colloquy, the defendant elected not
to testify but chose to put on proof.
Doctor Robert J. Brown, Jr., a forensic psychologist, testified that he spent
“well over 20 hours” interviewing, observing, and testing the defendant to determine
whether the defendant was competent to stand trial. Although Doctor Brown initially
concluded that the defendant was not competent, Doctor Brown was able to restore the
defendant’s competency. Doctor Brown diagnosed the defendant with post-traumatic
stress disorder, attention deficit hyperactivity disorder, and an anxiety disorder that
originated from the “sexual abuse that he sustained from approximately age three until just
before he became a full-fledged adolescent.” Doctor Brown also concluded that the
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defendant suffered an “anoxic traumatic brain injury from those episodes where he was
placed in the freezer with insufficient oxygen” by his older stepbrother. Doctor Brown
testified that the defendant’s mental diseases and defects rose to the level of “diminished
capacity” “[c]linically, without question” but only on “two of the four prongs” “legally.”
He determined that by the time the defendant confessed to sexually abusing the victim, he
understood the wrongfulness of his conduct.
During cross-examination, Doctor Brown acknowledged that the defendant
was competent to stand trial and that an insanity defense could not be supported. Doctor
Brown conceded that “[f]rom the standpoint of clinical perspective, yes, there are
diminished capacities, but in reference to legal definition, no.” He admitted that the
defendant “knows that he did it intentionally and that it was wrongful” but then claimed
that he could not say that the defendant intentionally engaged in the various activities with
the victim. He also claimed that he could not determine whether the defendant had acted
knowingly “because I don’t have a date. I don’t have a timeline as to when this transpired.”
Eventually, Doctor Brown acknowledged that the defendant possessed the capacity to act
intentionally or knowingly but lacked the capacity to intentionally or knowingly inflict
harm on the victim.
The defendant’s sister, Lorrie Edwards, testified that their mother remarried
when they were young and that their older stepbrother abused them both “violently and
sexually.” She said that the stepbrother “would put [the defendant] in the freezer and take
him out and I thought he was dead at the time.” The stepbrother would then engage in
sexual intercourse with the unconscious defendant. Ms. Edwards testified that, as a result
of this abuse, the defendant struggled with his memory and that she had to assist him in
performing daily tasks. She said that the defendant had been under the care of a psychiatrist
for most of his life.
During cross-examination, Ms. Edwards said that the defendant came to her
and reported that he had done something wrong and that he eventually told her that it
involved the victim.
Based upon this evidence, the jury convicted the defendant as charged of
aggravated sexual battery in Count 1, sexual battery by an authority figure in Count 2, and
rape in Count 4 but acquitted him of rape as charged in Count 3. Following a sentencing
hearing, the trial court imposed concurrent sentences of nine years for the defendant’s
convictions of rape and aggravated sexual battery, to be served at 100 percent by operation
of law. The court imposed a sentence of four years, to be served at 30 percent, for the
defendant’s conviction of sexual battery by an authority figure and aligned that sentence
consecutively to the others, for a total effective sentence of 13 years’ incarceration.
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The defendant filed a timely but unsuccessful motion for new trial followed
by a timely notice of appeal. In this appeal, the defendant challenges the sufficiency of the
convicting evidence and the imposition of consecutive sentences.
I. Sufficiency
The defendant first asserts that the evidence was insufficient to support his
convictions, arguing generally that “the State relied entirely upon unreliable witnesses” and
specifically that the State failed to establish that the defendant was an authority figure under
the terms of Code section 39-13-527. The State contends that the evidence was sufficient.
Sufficient evidence exists to support a conviction if, after considering the
evidence—both direct and circumstantial—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. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319 (1979);
State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011). This court will neither re-weigh the
evidence nor substitute its inferences for those drawn by the trier of fact. Dorantes, 331
S.W.3d at 379. The verdict of the jury resolves any questions concerning the credibility of
the witnesses, the weight and value of the evidence, and the factual issues raised by the
evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Significantly, this court
must afford the State the strongest legitimate view of the evidence contained in the record
as well as all reasonable and legitimate inferences which may be drawn from the evidence.
Id.
As charged in this case, “[r]ape is unlawful sexual penetration of a victim by
the defendant or of the defendant by a victim” when “[t]he sexual penetration is
accomplished without the consent of the victim and the defendant knows or has reason to
know at the time of the penetration that the victim did not consent.” T.C.A. § 39-13-
503(a)(2). “‘Sexual penetration’ means 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.” Id. § 39-13-501(7). “Aggravated
sexual battery is unlawful sexual contact with a victim by the defendant or the defendant
by a victim” when “[t]he victim is less than thirteen (13) years of age.” Id. § 39-13-
504(a)(4). “Sexual battery by an authority figure is unlawful sexual contact with a victim
by the defendant or the defendant by a victim” when “[t]he victim was, at the time of the
offense, thirteen (13) years of age or older but less then eighteen (18) years of age” and
“[t]he defendant had, at the time of the offense, parental or custodial authority over the
victim and used the authority to accomplish the sexual contact.” Id. § 39-13-527(a)(1),
(3)(B).
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“Sexual contact” includes the intentional touching of the
victim’s, the defendant’s, or any other person’s intimate parts,
or the intentional touching of the clothing covering the
immediate area of the victim’s, the defendant’s, or any other
person’s intimate parts, if that intentional touching can be
reasonably construed as being for the purpose of sexual arousal
or gratification[.]
Id. § 39-13-501(6). “‘Intimate parts’ includes the primary genital area, groin, inner thigh,
buttock or breast of a human being.” Id. § 39-13-501(2).
We may not indulge in the defendant’s invitation to reevaluate the credibility
of the witnesses or revisit inconsistencies in the testimony because both lay solely within
the purview of the jury as the trier of fact. See Cabbage, 571 S.W.2d at 835. The evidence
adduced at trial established that, before he married the victim’s mother, the defendant
touched the victim on her naked bottom under circumstances from which a rational jury
could conclude that he had done so to satisfy his desire for sexual gratification. The victim
testified that, after the defendant married her mother, he required that she perform “sexual
favors” in exchange for his permission to engage in activities with her friends. The
defendant acknowledged the transactional nature of their relationship to the police, saying
that he intervened for the victim with her mother in exchange for her masturbating him, his
masturbating on her, and his performing oral sex on her. Although the victim’s mother
testified that the defendant acted as more a friend than a father to the victim, she also
testified that he was involved in all the parenting decisions. The victim testified that she
had to ask the defendant permission to socialize with friends. This court has previously
held that a finding of parental or custodial authority is not contingent upon the defendant’s
being the biological parent or legal custodian of the victim. See, e.g., State v. Robert M.
Deunes-Cruz, No. M2011-00879-CCA-R3-CD, slip op. at 13 (Tenn. Crim. App.,
Nashville, Jan. 7, 2013) (finding evidence sufficient to sustain conviction of statutory rape
by an authority figure where defendant was victim’s stepfather). The evidence presented
at trial was sufficient to sustain the defendant’s convictions of aggravated sexual battery,
sexual battery by an authority figure, and rape.
II. Sentencing
Finally, the defendant contends that the trial court abused its discretion by
using essential elements of the conviction offenses to support the imposition of consecutive
sentences under the terms of Code section 40-35-115(b)(5), “creating a ‘double
enhancement’ scenario in which a defendant is twice punished for the same offense.” The
State asserts that the court did not err, noting that this court has previously considered and
rejected an argument identical to that presented by the defendant.
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At the January 2020 sentencing hearing, the victim’s stepmother testified that
the victim came to live with her and her husband in October 2014 and that neither she nor
her husband was “real sure” why the victim came to live with them. She testified that the
victim’s mother essentially told them to come and get the victim because she was out of
control. The victim’s stepmother said that, before coming to live with her and her husband,
the victim told her, “‘If you leave me here, I’m going to kill myself.’” The victim’s
stepmother recalled that as they left to take the victim back with them, she and the victim’s
father shook hands with the defendant and thanked him “and [he] smiled and shook [his]
hand back and said that we were welcome.”
The victim’s stepmother said that between October and December 2014, the
victim “was just really out of control. She was angry, she was sad, I think confused,
overwhelmed.” She recalled that the victim lied, snuck out of the house, drank alcohol,
and generally “had a very nasty attitude.” In December 2014, a woman from child
protective services came to their home and told them that the victim “had been molested
by her stepfather.” When they asked the victim about the allegation, the victim “felt very
guilty. She kept apologizing . . . and she just went into a downward spiral.” The victim’s
stepmother said that after her forensic interview, the victim “was upset, crying, distraught”
as well as “embarrassed, humiliated.”
The victim’s stepmother testified that the victim began going to “therapy
three times a week” “within the next two weeks” after her forensic interview. The victim
continued to go to therapy three times a week for “two and a half to three years.” She said
that, at the time of the sentencing hearing, the victim was in therapy twice a week. The
victim’s stepmother explained that the victim had trouble sleeping and that she had panic
attacks. She said that the victim took medication for depression and anxiety. She said that
the victim had “turned against God” because “she does not understand how a godly person,
like [the defendant] was supposed to be, doing something so ungodly to a child.” The
victim did not attend the sentencing hearing because she could not bear to look at the
defendant.
The victim’s stepmother testified that the victim’s issues “almost ended the
marriage” with the victim’s father. She said that discovering the defendant’s abuse of the
victim had “broken” the victim’s father. She added that the victim’s father “is so angry.
He is helpless. He is very heartbroken.” The victim’s stepmother testified that the victim’s
twin brother refused to speak to the victim “for two years, he was so angry. He was so
upset. He didn’t know who to believe.” The victim’s twin brother was also in therapy.
The victim’s stepmother read aloud a letter from the victim’s paternal
grandmother. In the letter, the victim’s grandmother stated that the defendant’s conduct
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had done “a great job in almost destroying a relationship between twins, causing distress
to my son and his wife as they have tried to mend our family back together. You almost
destroyed them.” She said that the “poor” victim had been “ripped from her friends, how
awful, not to mention the fact that she had to leave her mother.”
Doctor Joseph Martin, director of a men’s ministry program, testified on
behalf of the defendant that he had gotten to know the defendant when he “was a ministry
leader at Metropolitan Tabernacle.” He said that the defendant joined his men’s ministry
group and that it was through this group that the defendant first divulged that he had been
abusing the victim. Doctor Martin said that the defendant’s confessing his behavior was
“a huge sign” that he had accepted responsibility for his actions.
During cross-examination, Doctor Martin said that if the abuse “was
ongoing,” he would have reported it. He said that it was his recollection that the defendant
lived alone at the time he disclosed the abuse to Doctor Martin.
The defendant asked the court to consider in mitigation the fact that, absent
his own disclosure, the abuse might not ever have been discovered. He also asked the court
to consider the fact that the defendant had “accepted his responsibility and he has,
unfortunately, fell into a very difficult situation and had a trial that he should not have had,
and had he been better advised, . . . this case would have been resolved in a plea.”
The State asked the trial court to align the defendant’s sentence for his
conviction of sexual battery by an authority figure consecutively to the sentence imposed
for his conviction of aggravated sexual battery under the terms of Code section 40-35-
115(b)(5), which permits consecutive alignment of sentences for convictions involving the
sexual abuse of a minor.
The trial court deemed it “significant” that the defendant had self-reported
the abuse. The court noted, however, that the record established “an extensive pattern of
abuse” that progressed in severity over a course of years. The court observed that the
victim experienced “continuing anxiety and emotional harm . . . as a result of the
defendant’s acts.” The court noted that it wanted to “be careful to make sure” that it did
not use the essential elements of the convictions offenses to enhance the sentence. The
court found that “the anxiety and harm, mental anguished that has been experienced” by
the victim as well as the period of undetected sexual activity supported partially
consecutive alignment of the sentences. The court also found that the abuse was extensive
and encompassed acts for which the defendant had not been convicted. The court
concluded that “the violation of an adolescent minor is a horrible act that doesn’t just harm
that person at that moment, but stays with that person.” Based upon these findings, the
court imposed concurrent sentences of nine years each for the defendant’s convictions of
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rape and aggravated sexual battery, to be served at 100 percent by operation of law, and a
sentence of four years for his conviction of sexual battery by an authority figure. The court
ordered the defendant to serve the four-year sentence consecutively to the nine-year
sentence, for a total effective sentence of 13 years’ incarceration.
Our supreme court has adopted an abuse of discretion standard of review for
sentencing and has prescribed “a presumption of reasonableness to within-range sentencing
decisions that reflect a proper application of the purposes and principles of our Sentencing
Act.” State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). The application of the purposes
and principles of sentencing involves a consideration of “[t]he potential or lack of potential
for the rehabilitation or treatment of the defendant . . . in determining the sentence
alternative or length of a term to be imposed.” T.C.A. § 40-35-103(5). Trial courts are
“required under the 2005 amendments to ‘place on the record, either orally or in writing,
what enhancement or mitigating factors were considered, if any, as well as the reasons for
the sentence, in order to ensure fair and consistent sentencing.’” Bise, 380 S.W.3d at 698-
99 (quoting T.C.A. § 40-35-210(e)). Under the holding in Bise, “[a] sentence should be
upheld so long as it is within the appropriate range and the record demonstrates that the
sentence is otherwise in compliance with the purposes and principles listed by statute.” Id.
at 709.
The standard of review adopted in Bise “applies similarly” to the imposition
of consecutive sentences, “giving deference to the trial court's exercise of its discretionary
authority to impose consecutive sentences if it 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, 861 (Tenn. 2013). In State v. Wilkerson,
the supreme court held that the trial court must find that consecutive sentences are
reasonably related to the severity of the offenses committed and are necessary to protect
the public from further criminal conduct before utilizing the “dangerous offender” category
to impose consecutive sentencing, see State v. Wilkerson, 905 S.W.2d 933, 937-39 (Tenn.
1995), and “[t]he adoption of the abuse of discretion standard with the presumption of
reasonableness has not eliminated this requirement,” Pollard, 432 S.W.3d at 863.
In our view, the record supports the sentencing decision of the trial court.
The trial court imposed partially consecutive sentences based upon its application of Code
section 40-35-115(b)(5), which permits the imposition of consecutive sentences when
The defendant is convicted of two (2) or more statutory
offenses involving sexual abuse of a minor with consideration
of the aggravating circumstances arising from the relationship
between the defendant and victim or victims, the time span of
defendant’s undetected sexual activity, the nature and scope of
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the sexual acts and the extent of the residual, physical and
mental damage to the victim or victims.
T.C.A. § 40-35-115(b)(5). The record reflects that the trial court carefully and thoughtfully
parsed the evidence at trial and the sentencing hearing to determine that the defendant’s
conduct met the requirements of Code section 40-35-115(b)(5). The record establishes that
the defendant used his position as the victim’s stepfather to coerce the minor victim into
engaging in a series of sexual acts progressing in vulgarity, over a period of years, resulting
in serious emotional trauma to the victim and to her family.
The defendant does not contend that his offenses do not meet the
requirements of the statute, and, indeed, the record supports a finding under this Code
section. Instead, he argues that using factors that are essential elements of the conviction
offenses allows an improper double enhancement. First, we observe that although Code
section 40-35-114 bars the application of any enhancement factor that is “already an
essential element of the offense,” T.C.A. § 40-35-114, Code section 40-35-115 contains no
such restriction, id. § 40-35-115; see also State v. Bennie E. Massey, No. M2009-00824-
CCA-R3-CD, 2011 WL 662276, at *12 (Tenn. Crim. App., Nashville, Feb. 9, 2011)
(“Although Tennessee Code Annotated section 40-35-114 prohibits the use of an ‘essential
element of the offense’ as an enhancement factor, the consecutive sentencing provisions .
. . contain no such prohibition.”); State v. Manual Haynes, No. W2009-00599-CCA-R3-
CD, 2010 WL 2473298, at *8 (Tenn. Crim. App., Jackson, June 17, 2010) (“Our supreme
court has allowed consecutive sentencing based on conduct that constituted an element of
the offense.”). Instead, that section mandates that courts use “the criteria in this section”
when making sentence alignment decisions and permits the imposition of consecutive
sentences when “the court finds by a preponderance of the evidence” any of the eight
criteria listed in subsection (b). T.C.A. § 40-35-115(a).
Second, to adopt the defendant’s reading of the statute would be to render it
useless in those cases when the defendant has committed multiple sexual offenses for
which the victim’s minority is an essential element when the history of the (b)(5) factor
establishes that those are precisely the cases the statute is designed to address. Code section
40-35-115(b)(5) traces its origins to State v. Taylor, 739 S.W.2d 227 (Tenn. 1987). In
Taylor, our supreme court observed that some cases involving the sexual abuse of a minor
did not fit within the existing criteria for consecutive sentencing even though the facts “of
those cases fully justified the imposition of consecutive sentences” and concluded that “it
is necessary and appropriate to supplement the” then-existing criteria for discretionary
consecutive sentences “with one applicable to defendants convicted of two or more
statutory offenses that involve sexual abuse of minors.” State v. Taylor, 739 S.W.2d 227,
230 (Tenn. 1987). Taylor’s convictions of aggravated rape related to his committing “sex
acts upon his own daughter, consisting of oral sex, anal and vaginal intercourse” when she
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was between four and seven years old, and her minority was an element of the offense of
aggravated rape at the time of Taylor’s conviction. Id.; see T.C.A. § 39-2-603(a)(4) (1982)
(repealed).
Because the statute contains no express prohibition on using factors that
constitute elements of the offense to support the imposition of consecutive sentences and
because the history of Code section 40-35-115(b)(5) supports its application where the
victim’s minority is an element of the offense, we affirm the sentencing decision of the
trial court.
Based on the foregoing analysis, we affirm the judgments of the trial court.
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JAMES CURWOOD WITT, JR., JUDGE
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