        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                    Assigned on Briefs June 23, 2015 at Knoxville

        STATE OF TENNESSEE v. DARREL DEAN HOCHHALTER

                  Appeal from the Criminal Court for Davidson County
                     No. 2012-B-1816    Steve R. Dozier, Judge


                 No. M2014-01106-CCA-R3-CD – Filed July 29, 2015


The defendant, Darrel Dean Hochhalter, was convicted by a Davidson County Criminal
Court jury of six counts of sexual battery by an authority figure and one count of rape.
He was sentenced to five years for each count of sexual battery by an authority figure and
twelve years for the rape conviction. The court ordered that two of the sentences for
sexual battery by an authority figure and the sentence for rape be served consecutively,
for an effective term of twenty-two years. On appeal, he argues that: (1) the evidence is
insufficient to sustain his convictions; (2) the trial court erred in admitting the forensic
interview of the victim at trial; and (3) the trial court abused its discretion in sentencing
him to twenty-two years in confinement. After review, we affirm the judgments of the
trial court. However, we remand for entry of a corrected judgment in Count 7 to reflect
the rape conviction as a Class B felony.

 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
                 and Remanded for Entry of Corrected Judgment

ALAN E. GLENN, J., delivered the opinion of the court, in which ROBERT H.
MONTGOMERY, JR., and TIMOTHY L. EASTER, JJ., joined.

David M. Hopkins, Murfreesboro, Tennessee (on appeal); Brent Horst and Harvey
Slovis, New York, New York (at trial), for the Appellant, Darrel Dean Hochhalter.

Herbert H. Slatery III, Attorney General and Reporter; Leslie E. Price, Senior Counsel;
Victor S. Johnson, III, District Attorney General; and Sharon Reddick and Rachel M.
Sobrero, Assistant District Attorneys General, for the Appellee, State of Tennessee.
                                        OPINION

                                         FACTS

       This case arises out of the defendant‟s numerous and various sexual encounters
with his daughter, the victim, which occurred between April 22, 2008 and April 16, 2010.
As a result, he was indicted for seven counts of sexual battery by an authority figure, one
of which was dismissed before trial, as well as one count of rape. The defendant‟s wife
was charged with one count of facilitation of sexual battery by an authority figure, but her
case was severed from the defendant‟s.

       At trial, the victim, who was nineteen years old at the time of trial, testified that
the defendant was her father, and she had a sister who was four years younger than she.
During the time period in question, her mother left for work around 8:30 a.m. and
returned home around 5:00 or 6:00 p.m. The defendant worked nights, leaving the home
around 2:00 a.m. and returning around 9:00 a.m. Her grandmother also lived in the
home, but she primarily stayed in her room downstairs or in the living room and kitchen
on the main level. She rarely went to the upstairs level, where the bedrooms were
located.

       The victim said that she was homeschooled in the sixth grade by the defendant,
but she returned to school for seventh and most of eighth grade. In April or May 2008,
during her eighth grade year when she was thirteen years old, the defendant withdrew the
victim from school because the victim began cutting herself. The defendant believed the
victim‟s friends were a bad influence on her.

         The victim said that she and the defendant had “a great relationship” when she was
little, but they grew apart as she became a teenager and wanted to be with her friends.
During the time the defendant homeschooled her after withdrawing her from the eighth
grade, the victim‟s and defendant‟s relationship “was strained but [they] were really
close.” She elaborated that the defendant “was just trying to relearn [her].”

       The victim recalled that, following her removal from school, the defendant would
wait in the bathroom while she showered, so he could check her legs afterwards to make
sure she had not cut herself. The victim denied that the defendant ever got in the shower
with her or touched her in the shower. The victim acknowledged having previously told
others that the defendant had taken showers with her in order to conserve water and to
make sure she was not cutting herself. She also acknowledged having previously told
others that the defendant “would grab [her] boob or smack [her] butt in the shower.” The
victim denied that the defendant ever got in the bathtub with her. However, she

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acknowledged previously stating on a number of occasions, including under oath, that the
defendant had done so.

       After completing her homeschooled eighth grade year, the victim began attending
Nashville School of the Arts (“NSA”), and the defendant visited her at school. Someone
from the Department of Children‟s Services (“DCS”) spoke with the victim about
concerns that had been raised at school concerning her relationship with the defendant.
Rumors were going around the school that she had been “making out” with the
defendant. The victim told the DCS worker that nothing had happened and that they
were just “a very eccentric family.” The victim acknowledged that her mother told her to
tell DCS that nothing happened in order to protect their family. However, she explained
that her mother was referring to the defendant‟s grabbing her breasts and checking her
hymen – the only two things she admitted actually happened. After DCS became
involved, the victim‟s parents blamed her for telling her friends about the sexual abuse,
and her parents discussed moving out of state to prevent the defendant from going to
prison. The victim recalled that her parents talked about how the victim‟s “inability to
stay quiet about things happening” was going to have legal repercussions.

       The victim acknowledged previously stating that she made the decision to disclose
the abuse in 2011 because she was worried about her younger sister. At the time of the
disclosure, the victim‟s sister was the same age that the victim had been when the abuse
started, and the victim‟s sister was also being homeschooled. At trial, however, the
victim testified, “It wasn‟t really a concern about sexual abuse, it was just a convenient
thing that fit in with my story.”

        The victim agreed that she had been fearful her mother and sister would blame her
if the defendant went to jail, and she was worried about breaking up her family.
However, she acknowledged that she had not broken up her family because, at the time of
trial, she was living with her mother, her parents were still together, and she saw the
defendant occasionally even though he was not supposed to be around her. However, she
denied that the defendant came to her house when she was present. Asked if she wanted
to be reunited with the defendant and the family, she responded, “Maybe after a lot of
counseling.”

       The victim claimed that she told stories about the defendant‟s molesting her in
order to make friends at school. She told her friends that she had taken showers and
“naked naps” with her father. She elaborated that she told her friends that her father
groped her breasts and buttocks during the showers and that he had erections during the
naps. She also told them that, on one occasion, the defendant tried to digitally penetrate
her vagina. She explained that the defendant “felt down there to see if [she] was
aroused” and asked if she “was wet.”
                                            3
       The victim stated that, in the tenth grade, she got caught performing oral sex on
her boyfriend and was taken out of school. After that, she “used the stories that [she] had
been telling [about the defendant] to get out of the house because [she] wanted to be with
[her] boyfriend at that time.” She said that, after the incident with her boyfriend, the
defendant developed “all of these rules” and “beat[] the crap out of [her] every morning,”
so she did not want to be at home and used the stories she had told her friends over the
years to get out of the house. She stated that she told Jenny White, her former youth
leader, about the alleged abuse because she was afraid of not being able to see her
boyfriend again. However, she acknowledged that a few days before she disclosed the
abuse to Ms. White, her family had dinner with her boyfriend‟s family and agreed that
she would be able to return to school.

         The victim testified that she kept a journal in which she recorded some of the
allegations that she told other people. However, she clarified that she “had gone back
and written those in.” She kept the journal from the ages of thirteen to sixteen, or from
the eighth to the tenth grade. She elaborated that she had a “rough draft journal and a
final draft journal.” The rough draft journal had “all [her] sloppy writing and all of [her]
little side notes. And there were pages between them.” She later rewrote the journal to
look nice so she could give it to her children one day. She claimed that her friends
wanted to read her journal, so she “slipped in stuff from [her] stories . . . so it would seem
more believable.”

       The victim read a journal entry dated April 6, 2010, in which she noted that one of
her boyfriends “was confronting my dad about the molestation thing. I tried to tell [him]
that my dad is a good and honest man; he‟s confused. He‟s just ignored me of course.”
She then read another entry that read: “The [D]epartment of Child Services showed up to
talk to me at school. Family isn‟t in trouble but they will document their visit with the
family. We didn‟t tell them any of the things they would consider indecent.” The victim
then read another post, dated May 14, 2010, that read:

       DCS is coming to see me at school again today. Apparently either “Jade”
       or Principal Bob are sending letters to them about dad so they have to
       interview us again . . . but they believe we are innocent. Mom‟s getting
       pissed. She says it‟s harassment so she‟s going to try to sue Principal Bob
       for his job if this keeps happening.

       The victim testified that after she was caught performing oral sex on her boyfriend
at school, she and her boyfriend were taken to the principal‟s office and given three days
suspension each. She recalled that the defendant was “incredibly pissed off.” Although
the victim was only suspended for three days, the defendant kept her out of school for
                                              4
five days. During that time, the victim had to stay in her room, and “every morning . . .
[the defendant] would . . . beat the crap out of [her].” He made her hold onto a bedpost
while he beat her with a belt. He told her that he would smack her hand if she let go of
the bedpost. He called her “white trash” and said that she “would never amount to
anything.” The victim sustained bruises from her mid-back to her knees from the
beating. After the beatings, the victim went into the bathroom while the defendant
showered, and they talked. She recalled that the defendant talked about “how he was
going to kill [her boyfriend] and [her boyfriend]‟s dad, and the usual, just he was pissed.”
When the victim was hungry and asked for food, the defendant gave her bread, peanut
butter and water, which was the only food she had for several days. As a chore, for
punishment, she had to carry cinderblocks or logs back and forth across the yard. She
understood that she was being punished because she “had given [her] boyfriend a blow
job and that is not what Christian girls do.”

       After the five days had passed, the defendant allowed the victim to return to
school, as well as to church and see her youth leader, Jenny White. The victim told Ms.
White that her father had locked her in her room for five days and beaten her every day.
She also told Ms. White the same things that she had told her friends about the
defendant‟s molesting her when she was being homeschooled in the eighth grade. The
victim admitted that she detailed to Ms. White that the defendant had taken showers with
her, touched her private areas, and pressed his penis against her body. She admitted that
she additionally told Ms. White that the defendant had made her sleep naked with him
and touched her on several occasions when that happened. After the victim talked to Ms.
White, Ms. White told her that she was legally obligated to report the defendant‟s
conduct. The victim admitted that she never recanted her story to Ms. White.

       Following the disclosure to Ms. White, the victim spoke with a detective and told
him the same things she had told Ms. White. She agreed to make a controlled phone call
to the defendant because the detective told her that “[i]t would help with the case and
with removing [her] from the house.” The victim recalled that she later participated in a
forensic interview, which was audio and video recorded. She also testified in juvenile
court on July 11, 2011, and February 21, 2012.

       The victim then read a journal entry from April 12, 2011, in which she said:

       [The defendant] just burst in my room and said I can never kiss him again
       or even come within an arm‟s reach of him. And he said that if [my
       boyfriend] comes anywhere near me or comes anywhere near he will
       castrate him and shove [my boyfriend]‟s nuts down his dad‟s father‟s
       throat. It just [sic] me off because he threatened [my boyfriend] and [his

                                             5
       father]. I have a lot of respect for [my boyfriend]‟s family so it‟s like he
       threatened my own family when he said that.

              Then [the defendant] went on a rant about different ways to kill [my
       boyfriend]. One of them was [he] could drive a sword through his stomach,
       pull upwards to his chest and then let go of the sword. [My boyfriend]
       would take a sharp last breath and the pulling of air into his lungs would
       pull the sword deeper into his body. [He] would watch the life leave his
       eyes and pull the sword back out of his chest.

      The victim read another excerpt from her journal, dated April 26, 2011, in which
she noted that the defendant had become more protective of her since “he pulled [her] out
of eight[h] grade for cutting” but that “he did a lot of things that tour [sic] us apart.” The
excerpt further noted that she realized her mother and father “blame[d] it on [her], but if
they had just let [her] get through the phase on [her] own or if [the defendant] had not
molested [her] then [she] would be normal.”

     Another journal excerpt from April 26, 2011, read:

             So today when I was in the car with Jenny [White] she asked me how
       things are at home. A voice in the back of my head just started to shout that
       I needed to tell her everything. I was pretty calm about it, that comes with
       having told the story ten times I guess. After I finished telling her
       everything; she pulled up to the youth group parking lot and told me that
       she was legally obligated to call DCS.

             She asked to talk to Pastor Todd about it first and find out what‟s
       going to happen. She will talk to me before she does anything because I
       have questions and requests. I don‟t know whenever someone says abuse, I
       always think broken bones and rape, not this stuff. I wouldn‟t have told
       her, but I don‟t want [my sister] to go through the same stuff.

             I can deal [with] two more years of it, but I don‟t want her to
       experience it. She will hate me for taking mom and dad away, but I hope
       when she‟s older that she will forgive me.

             Mom always said that my first concern should be to protect the
       family. I tried to keep us together. I have lied to government officials and I
       hid secrets for four years.

At trial, the victim claimed that the events of which she told Ms. White did not occur.
                                              6
      The victim testified that after her allegations came out, she was placed in the home
of an acquaintance from church. She also saw a sex therapist, Shana Frank, at the
Nashville Children‟s Alliance for about a year. During the course of her therapy, the
victim never told Ms. Frank that the abuse did not happen. The victim talked to Ms.
Frank about the fact that her mother continued to allow the defendant to have contact
with her after learning that he was sexually molesting her in the eighth grade. She said
that her mother had “good intentions for everything” that happened after the incident
between the victim and her boyfriend, explaining that her mother said the defendant “was
blowing off steam” during the time he beat her and kept her in her room. However, the
victim told Ms. Frank that she wanted to resume a relationship with her mother. The
victim stated that she felt extremely guilty about her parents being in court and
acknowledged that both of her parents had told her that the problems in their family were
her fault.

      The victim testified that shortly after she turned eighteen, she returned to live with
her mother. The victim admitted that she met with the prosecutor and said that she was
concerned about her mother, but she knew that her father had to have some accountability
for what he did.

        The victim acknowledged having previously told a forensic examiner and
testifying at juvenile court on two occasions that the defendant had committed sexual acts
on her, starting at the age of twelve or thirteen. Among those actions, the victim had said
that the defendant got in the shower with her about every other day “to conserve water
and to rebuild the tender bond that [they] had from when [she] w[as] a young child.” She
acknowledged previously stating that when the defendant got in the shower with her, he
would grab her breasts, “feel her up,” and have erections. She acknowledged stating that
the defendant would hug her and that she would feel his erection against her. She said
that on one occasion, the defendant had pre-ejaculate on his penis, which he said never
happened with the victim‟s mother. She acknowledged previously stating that, after the
showers, she would take “naked naps” with the defendant. She said that they would
“spoon” during those naps, which the defendant called “making love notes by
intertwining [their] legs together” and that he would usually fall asleep with his hand on
her breast. However, the victim denied that any of those statements were true.

       The victim further acknowledged having previously stated, but now said that it
was untrue, that the defendant often got erections during their naps together. She also
admitted previously stating, but that it was untrue, that, during one naked nap, the
defendant woke up with an erection, got on top of her, touched her private area to see “if
it was wet and said . . . you‟re horny too.” She had also said that during that same
incident, the defendant moved his hand around and made grunting noises, for which he
                                             7
apologized, but that was also untrue. Another statement the victim admitted previously
making but now said was untrue was that on a couple of occasions, the defendant filled
the bathtub with water and had her lay on top of him, after which he started thrusting or
“humping” his penis against her body.

       The victim testified that it was true that the defendant checked her hymen on one
occasion during her eighth grade year when she was being homeschooled. She
elaborated that she had to have a kidney removed when she was three years old, and she
and the defendant were concerned that the surgery had taken her virginity. She
explained:

       One of the surgeries they couldn‟t [get] all of the surgical tools up my
       vagina so they had to make a little incision in my hymen to fit everything in
       there. And that‟s always been something that‟s kind of been a concern. I
       never knew it happened until dad mentioned it one day.

              And so I was always really worried about it because virginity is a
       really big deal in our house. And so we looked. We decided to figure out
       what was going on because I can‟t see with a mirror. I didn‟t know what I
       was looking for.

        The victim stated that she lay on the bed, held “everything open,” and the
defendant “checked real quick.” The defendant determined that “it was still intact.” The
defendant told her that “[t]here was just like a little V cut [out] of it or something, and
that it would hurt whenever I lost my virginity.” The victim recalled that the incident
was “really awkward and uncomfortable.” The defendant also later told her that she “had
a lot of vagina” and asked whether she was a hermaphrodite. The victim denied that the
defendant touched her vagina and moved his hand around until she told him that it was
uncomfortable. She explained that, instead, she spread her genitals apart for the
defendant to look. The victim admitted that the defendant told her not to tell her mother
or other people about his playfully grabbing her breasts or checking her hymen because
people would think it was sexual abuse. The victim acknowledged that the defendant‟s
action of checking her hymen was inappropriate and “really weird,” but she claimed
“there was nothing sexual about it.”

       The victim admitted that the defendant discussed his and her mother‟s sex life and
told her about her mother‟s fetishes. The defendant told the victim that she “stressed him
out,” which caused his blood pressure to rise such that he had to be on medication.
According to the victim, one of the defendant‟s medications caused him to easily get
erections. However, the victim stated that the defendant told her that his erections with
her caused him to have problems getting erections with her mother. She acknowledged
                                            8
that the defendant said that he did not have sex with his wife because of her. The victim
elaborated:

       [W]hat I know is that I was stressing dad out and he had blood pressure
       problems. And he got on Cialis and he was still having problems having
       sex with mom. But when he was around the house just hanging out and I
       was at the house, it would happen.

The victim denied ever seeing the defendant with an erection despite having previously
said that she had.

       The victim testified that the defendant came to school to have lunch with her once
or twice a week and people started spreading rumors about them. One rumor was that
she “was making out with [her] dad on the back of a motorcycle.” Thereafter, the
defendant stopping visiting her for lunch so often.

       The victim acknowledged telling prosecutors on the morning of the trial that the
defendant had touched her inappropriately. She discussed with the prosecutors how the
defendant had showered with her and touched her breasts and buttocks in the shower.
She also discussed that the defendant got erections. She referred to the defendant‟s
having pre-ejaculate on his penis and stated that she had asked him about it. The
defendant told her that he did not know what it was because he had never experienced it
with the victim‟s mother. The victim told prosecutors that the defendant masturbated in
the shower when she was in the room. One time, the defendant filled the bathtub with
water and made the victim lie on top of him while he had an erection. The victim
discussed taking “naked naps” with the defendant and his touching her breasts and
buttocks. She explained that the defendant “spooned” her in bed, that his penis came in
contact with her, and that he sometimes got erections. The victim discussed with the
prosecutor a particularly upsetting incident when she woke up and the defendant had an
erection. She elaborated that “things got out of hand,” and the defendant got on top of
her and “started feeling [her] up.” He asked her “if [she] was wet,” and she rolled out
from underneath him, told him to stop, and left the room. She told the prosecutors that
she and the defendant later talked about it, and he apologized.

       The victim acknowledged that, during her conversation with the prosecutor right
before the trial, she asked the prosecutor how long of a sentence the defendant faced.
Asked why she did not recant then, the victim responded, “Because everybody has an
agenda. And . . . I‟m just . . . tired of having a bunch of attorneys tell me what to do[.]”
She stated that she did not want the guilt of having her father “go to jail when he didn‟t
do most of the stuff.” However, she stated that “[t]here is some stuff he did do that was

                                             9
really wrong, but I‟m not going to keep making lies.” She acknowledged that the
prosecutor did not ask her to embellish the truth.

        The victim testified that, even though she told several people about numerous
allegations of molestation, even as recently as the morning of trial, the stories were all
fabricated. The victim admitted that, in sum, she had told the guidance counsel at NSA, a
DCS worker, a forensic interviewer, and an attorney from the district attorney‟s office
that the defendant molested her. She explained that her testimony was different now
because she was an adult and understood that there were consequences for lying under
oath. The victim admitted that she was having trouble testifying, explaining, “Like I‟m
trying to split out which parts actually happened and which parts didn‟t.”

       Robert Wilson, former principal of NSA, testified that the victim began attending
the school in the ninth grade. Prior to attending NSA, the victim attended Two Rivers
Middle School, but there was a one-year gap between her attendance at the two schools
and nothing in her record to indicate that she was being homeschooled that year.
However, the victim passed the tests to be admitted to NSA.

       Mr. Wilson testified that sometime during the 2009-2010 school year, he observed
some behavior between the victim and the defendant that concerned him. On one
occasion, he observed the defendant and the victim leaning against a door together and
walking hand-in-hand to the cafeteria. Mr. Wilson followed them and saw them sit in
two chairs at the far end of the cafeteria. The victim had her bare feet in the defendant‟s
lap, and he was playing with her toes. Mr. Wilson noted that he had never seen a parent
and child interact in such a manner. Mr. Wilson also noted that the defendant was
wearing a tank top, which was not proper school attire for students. Therefore, he spoke
with the defendant and asked him not to wear tank tops to the school.

       Mr. Wilson testified that the defendant called and left him a message stating that
he was concerned about what some students were saying about his relationship with the
victim. The defendant asked if Mr. Wilson could provide a private place where he and
the victim could have lunch together. Mr. Wilson returned the defendant‟s call and told
him that he could not provide a private lunch spot and that if he was concerned about the
rumors, “he probably shouldn‟t come around so much.” Within weeks of that
conversation, Mr. Wilson observed the defendant and the victim having lunch in the
teacher‟s lounge. He informed them that they did not have permission to be in the
teacher‟s lounge and that they needed to leave. Mr. Wilson stated that, as an educator, he
had mandatory reporting obligations regarding suspected child abuse, and he made a
referral regarding the victim in April 2011. Mr. Wilson acknowledged that he never saw
any acts of molestation or sexual abuse of the victim by the defendant.

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       Jenny White testified that, in the spring of 2011, she was a youth pastor at
Friendship Community Church. The victim‟s family attended church there, and the
victim and her sister attended the mid-week youth group meetings. At some point, Ms.
White began giving the victim a ride to church because they lived in the same
neighborhood.

        Prior to April 2011, the victim shared with Ms. White some “questionable” things
about her family that caused Ms. White to inform the victim that she might have to
disclose that information to others if the victim continued to share information. This
included the defendant‟s having seen the victim in the shower. Additionally, Ms. White
had observed “a lot of physical touching between a father and daughter, a lot. Back rubs,
a lot of hugging, kissing on the mouth, that sort of thing that is strange just enough that it
would put up a red flag[.]” Then, in April 2011, the victim disclosed to her some
information, and Ms. White told her that she would have to disclose that information if
they kept talking. The victim was okay with Ms. White disclosing the information and
continued to talk to her. Ms. White got the impression from the victim that she did not
want to be in the home and “didn‟t want her sister there either for protection purposes[.]”
With the victim‟s permission, Ms. White called the victim‟s school and spoke to the
principal and guidance counselor. The three of them decided that they needed to make a
referral to DCS.

       After the referral, Ms. White continued to pick up the victim for youth group
meetings. Ms. White assisted law enforcement and DCS in facilitating a meeting with
the victim before they spoke to her family. Ms. White picked up the victim for youth
group, and officers and DCS spoke to her at church. During that meeting, the victim
made a phone call to the defendant. Thereafter, officers asked Ms. White to drive the
victim home but had an officer meet them at the house. Ms. White recalled that the
victim “was super nervous and was crying.” The victim went to stay with another family
in the neighborhood. Ms. White continued to take the victim to youth group until the
victim eventually began going to another church. The victim never recanted her story to
Ms. White.

       The victim‟s former boyfriend testified that he was a graduate of NSA and had
dated the victim from his sophomore to his senior year. He described that their
relationship “started out a little iffy and then [they] got to become better friends and then
towards the end it got a little untrusted[.]” With the exception of the times at the
beginning and the end of their relationship, he and the victim were close, “[b]est friends
pretty much. We would talk about anything.”

       The victim‟s former boyfriend said that, during their sophomore year, he and the
victim got into trouble at school and were suspended. At the time of their suspension, he
                                             11
and the victim were very close. They communicated with each other through Facebook
messages during the suspension. The victim told him that the defendant had beaten her.
He could tell that the victim appeared to be sad and upset. He was out of school for three
days, and the victim returned to school the following week. The victim told him that she
wanted to return to school to get away from the house for a while. Just prior to the
victim‟s returning to school, he and his parents had dinner with the victim and her
parents.

        Prior to the suspension, the victim had indicated to her boyfriend that the
defendant had sexually abused her. He was aware that the victim kept journals. A couple
of weeks prior to the suspension, the victim asked him to keep one of her journals.
Around the time of the suspension, the victim asked him to keep a second journal. He
later gave the journals to the police.

       Officer Edmond Strickling with the Metro Nashville Police Department‟s Sex
Crimes Unit testified that, in April 2011, he received a referral from DCS and began
investigating the alleged sexual abuse of the victim by the defendant. Officer Strickling
met with the victim at a church and conducted a detailed interview with her. During the
interview, the victim made a controlled phone call to the defendant which was recorded.

        During the call, the victim referred to a Bible verse and asked the defendant if they
were going to go to hell because they were “sinful people from the stuff [they] did.” She
stated, “Because I mean we saw each other naked just like it says in the verse[.]” The
defendant responded, “I changed your diapers. I saw you naked when you were two.
True, things changed, furniture moved, things developed, and it‟s true that, uh, we did
take some liberties that might have been questionable.” The defendant then noted that
privacy in their household had never been “all that great.” The defendant looked up the
Bible verse to which the victim had referred and stated that it was talking about brothers
and sisters committing incest. The victim asked about taking showers together and
“naked naps.” The defendant then questioned whether the victim was alone, and she
responded affirmatively. The defendant answered, “[W]e didn‟t have sex. . . . I didn‟t do
anything with the intent of sexual gratification.” The victim again asked whether they
would go to hell because of the naked naps and the showers, and the defendant stated that
he had asked for her forgiveness and “[i]f there was a sin there, it was [his] not [hers].”
He then said that he had repented and asked for God‟s forgiveness, and again that he had
asked for her forgiveness “for the times it may have gone a bit far.”

        The defendant stated that “there were a lot of reasons that seemed to make sense . .
. at the time . . . when it was done.” He continued, “I backed away from you . . . as you
began to develop because I didn‟t know what to do with it. . . . And I was a little bit
panicked about it.” He then told the victim, “[Y]ou were starting to throw off
                                             12
pheromones that were making my body respond in ways that were extremely
embarrassing to me.” He stated that he went to a therapist but stopped going because the
therapist suggested that his actions were sexual abuse. He noted that “from a certain
point of view, [the therapist] may have had a point.” The defendant stated that, as the
victim got older, he needed to reestablish the bond that he had with her as a child. He
stated, “I felt the strongest bond to you as a child was when I‟d lay on the couch and lay
you on my chest and you‟d sleep on my chest. . . . That was skin to skin.” The defendant
claimed that the “naked naps” were to try to bond with the victim again. The defendant
said that he was “trying so hard to control what was happening down there” when he was
around the victim that he was experiencing trouble having sex with his wife.

       The victim referred to the defendant‟s touching her, and he responded, “I guess, I
did.” He elaborated, “I examined your hymen twice because I was trying to learn about it
and trying to figure out what to do about yours. Um, but I never touched your clitoris. I
never tried to arouse you. Did I?” The victim responded that he did, and the defendant
apologized. The victim told the defendant, “There was one time when you woke up from
the nap, and you had [an erection] and you – it got scary, and that‟s when I jumped out of
the bed, and you came out ten minutes later and apologized.” The defendant said he
remembered that incident and “that was what [he] was asking for forgiveness for. That
was . . . off the charts, and that was wrong.” He explained that he was waking up and
“trying to deal with [her] pheromones, and [he] really didn‟t have a handle on it at the
time, and . . . it went too far.”

       The defendant said that he thought he needed to educate the victim about sex. He
noted that “privacy was already . . . lost in this house anyway” and he “always kind of
had a slight nudist vent anyway,” but “[t]he biggest problem was that [he] kept getting
[erections] anytime [he] was around [her].” Toward the end of the conversation, the
defendant stated that “there w[as] at least one occasion where it went entirely too far.
Um, I did examine your hymen.” He elaborated that he thought the doctor who
performed surgery on her when she was toddler had “took her virginity.”

       After the call, Officer Strickling went to the defendant‟s home and confronted him
about the allegations of sexual abuse. Officer Strickling audio-recorded his conversation
with the defendant. The defendant denied the allegations of sexual abuse. Officer
Strickling later spoke to Dominick Carson and his parents. Mr. Carson provided Officer
Strickling with the victim‟s journals that he had in his possession.

      The defendant did not testify or present any evidence.

       Following the conclusion of the proof, the jury convicted the defendant of six
counts of sexual battery by an authority figure and one count of rape.
                                           13
                                       ANALYSIS

                             I. Sufficiency of the Evidence

       The defendant contends that the evidence is insufficient to support his convictions.
In considering this issue, we apply the rule that where sufficiency of the convicting
evidence is challenged, the relevant question of the reviewing court 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); see also Tenn. R. App. P. 13(e) (“Findings
of guilt in criminal actions whether by the trial court or jury shall be set aside if the
evidence is insufficient to support the findings by the trier of fact of guilt beyond a
reasonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992); State v.
Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992). The same standard applies
whether the finding of guilt is predicated upon direct evidence, circumstantial evidence,
or a combination of direct and circumstantial evidence. State v. Matthews, 805 S.W.2d
776, 779 (Tenn. Crim. App. 1990).

       A criminal offense may be established entirely by circumstantial evidence. State
v. Majors, 318 S.W.3d 850, 857 (Tenn. 2010). It is for the jury to determine the weight
to be given the circumstantial evidence and the extent to which the circumstances are
consistent with the guilt of the defendant and inconsistent with his innocence. State v.
James, 315 S.W.3d 440, 456 (Tenn. 2010). In addition, the State does not have the duty
to exclude every other reasonable hypothesis except that of the defendant‟s guilt in order
to obtain a conviction based solely on circumstantial evidence. See State v. Dorantes,
331 S.W.3d 370, 380-81 (Tenn. 2011) (adopting the federal standard of review for cases
in which the evidence is entirely circumstantial).

       All questions involving the credibility of witnesses, the weight and value to be
given the evidence, and all factual issues are resolved by the trier of fact. See State v.
Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury,
approved by the trial judge, accredits the testimony of the witnesses for the State and
resolves all conflicts in favor of the theory of the State.” State v. Grace, 493 S.W.2d 474,
476 (Tenn. 1973). Our supreme court stated the rationale for this rule:

       This well-settled rule rests on a sound foundation. The trial judge and the
       jury see the witnesses face to face, hear their testimony and observe their
       demeanor on the stand. Thus the trial judge and jury are the primary
       instrumentality of justice to determine the weight and credibility to be
       given to the testimony of witnesses. In the trial forum alone is there human
                                            14
       atmosphere and the totality of the evidence cannot be reproduced with a
       written record in this Court.

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d
523, 527 (Tenn. 1963)). “A jury conviction removes the presumption of innocence with
which a defendant is initially cloaked and replaces it with one of guilt, so that on appeal a
convicted defendant has the burden of demonstrating that the evidence is insufficient.”
State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

       The State elected the following facts for the six counts of sexual battery by an
authority figure and the one count of rape:

       Count 1 – The defendant touched the victim‟s breast in the shower.

       Count 2 – The defendant touched the victim‟s body with his erect penis
       while hugging her in the shower.

       Count 3 – The defendant touched the victim‟s body with his erect penis
       while the victim was lying on top of him in the bathtub.

       Count 4 – The defendant touched the victim‟s breast while they were lying
       naked in the bed.

       Count 5 – The defendant touched the victim‟s naked body with his erect
       penis when he got on top of her in the bed.

       Count 6 – The defendant touched the victim‟s genitals to see if she was
       “wet” while they were lying naked in the bed.

       Count 7 – The defendant penetrated the victim‟s genitals with his hand
       when he “checked her hymen.”

        Sexual battery by an authority figure is defined as “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 than eighteen (18) years of
age . . . [and] [t]he defendant had, at the time of the offense, parental . . . authority over
the victim and used the authority to accomplish the sexual act.” Tenn. Code Ann. § 39-
13-527(a)(1), (3)(B). “„Sexual contact‟ includes the intentional touching 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). Rape is defined as “unlawful sexual penetration of a victim by the
                                             15
defendant or the defendant by a victim [when] . . . [f]orce or coercion is used to
accomplish the act[.]” Id. § 39-13-503(a)(1). Sexual penetration is defined as “sexual
intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight,
or 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). Coercion can include the “use of parental, custodial, or
official authority over a child less than fifteen (15) years of age[.]” Id. § 39-13-501(1).

       The defendant contends that the evidence is insufficient to support his convictions
because the victim recanted her previous allegations of sexual abuse at trial. He also
argues that his checking the victim‟s hymen does not meet the definition of “unlawful”
under the rape statute.

        Although the victim recanted her prior allegations of sexual abuse at trial, she
acknowledged that she had repeatedly and consistently stated prior to trial that the
defendant had sexually abused her. Without objection, the State admitted the victim‟s
testimony from two prior juvenile court hearings in which the victim detailed the sexual
abuse by the defendant. During those hearings, the victim testified that she and the
defendant showered together and that the defendant grabbed her breasts and often had
erections in the shower. The victim stated that, after the showers, she and the defendant
took “naked naps” together, and the defendant fell asleep “spooning” the victim with
their legs intertwined and his hand on her breast. She said that the defendant often got
erections during their naps together. On one occasion, while taking a naked nap, the
defendant woke up with an erection, got on top of her, touched her private area to see if
she was aroused, and noted that she was “horny” also. On another occasion, the
defendant filled the bathtub with water and had the victim lie on top of him, after which
he started thrusting his erect penis against her body. On at least one occasion, the
defendant penetrated the victim‟s vagina while examining her hymen to check her
virginity.

       At trial, even though she denied that many of her prior allegations of sexual abuse
had occurred, the victim acknowledged that the defendant checked her hymen when she
was thirteen years old. She explained that the defendant was concerned that she was no
longer a virgin because of a surgery she had when she was three years old. She admitted
that the defendant grabbed and squeezed her breasts and smacked her buttocks. The
defendant also discussed masturbation with her and offered to buy her a vibrator.

        In addition, following the victim‟s disclosure of abuse, she made a recorded phone
call to the defendant, during which the defendant admitted to inappropriate behavior with
the victim. During the call, the defendant acknowledged seeing the victim naked and
“tak[ing] some liberties that might have been questionable.” The victim asked the
                                             16
defendant about their taking showers and “naked naps” together. The defendant noted
that they did not have sex and that he had asked for her forgiveness. The defendant told
the victim that “as [she] began to develop,” she “start[ed] to throw off pheromones that
were making [his] body respond in ways that were extremely embarrassing to [him].” He
stated that he went to a therapist but stopped going because the therapist suggested that
his actions were sexual abuse and that, “from a certain point of view, [the therapist] may
have had a point.” The defendant acknowledged having taken naked naps with the victim
and explained that he did so in an effort to bond with her again. The defendant said that
he was “trying so hard to control what was happening down there” when he was around
the victim that he was experiencing trouble having sex with his wife.

       The defendant admitted touching the victim in that he examined her hymen twice.
However, he claimed that he never touched her clitoris or tried to arouse her, at which
point the victim responded that he did and the defendant apologized. The victim told the
defendant, “There was one time when you woke up from the nap, and you had [an
erection] and you – it got scary, and that‟s when I jumped out of the bed, and you came
out ten minutes later and apologized.” The defendant said that he remembered the
incident and “that was what [he] was asking for forgiveness for. That was . . . off the
charts, and that was wrong.” He explained that he was waking up and “trying to deal
with [her] pheromones, and [he] really didn‟t have a handle on it at the time, and . . . it
went too far.” The defendant admitted getting erections when he was around the victim.

        Furthermore, the victim‟s church youth leader and school principal testified
regarding questionable behavior by the defendant. Jenny White, the victim‟s church
youth leader, testified that the victim previously told her that the defendant had seen her
in the shower, and she had observed “a lot of physical touching between a father and
daughter, a lot. Back rubs, a lot of hugging, kissing on the mouth, that sort of thing that
is strange just enough that it would put up a red flag[.]”

       Robert Wilson, the victim‟s school principal, testified that the defendant visited
the school often. He recalled an instance when he observed the defendant and the victim
leaning against a door together and walking hand-in-hand to the cafeteria. He followed
them and saw them sit in two chairs at the far end of the cafeteria. The victim had her
bare feet in the defendant‟s lap, and the defendant was playing with her toes. Mr. Wilson
noted that he had never seen a parent and child interact in such a manner. He recalled
that the defendant asked him for a place where he and the victim could have lunch in
private because he was concerned about what some students were saying about his
relationship with the victim. Mr. Wilson told the defendant that he could not provide a
private lunch spot but, within weeks of that conversation, Mr. Wilson observed the
defendant and the victim having lunch together in the teacher‟s lounge without
permission.
                                            17
        As was its prerogative, the jury chose not to accredit the victim‟s testimony at trial
in which she testified that her previous allegations were not true. The jury heard
testimony that at the time of trial, the victim was living with her mother, her parents were
still together, and the victim occasionally saw the defendant. The victim admitted that
the guilt of having her parents in court was difficult for her and that her parents had told
her that the problems in their family were her fault. In the light most favorable to the
State, the evidence is sufficient for a rational trier of fact to find that the defendant
committed the acts of sexual abuse against the victim for the purpose of sexual arousal or
gratification and that the defendant used his parental authority to commit the act of rape
against the victim by telling her that he was concerned that she had lost her virginity
during a surgery when she was young and needed to examine her hymen.

                   II. Admission of the Victim’s Forensic Interview

       The defendant argues that the trial court erred in allowing the State to introduce
the victim‟s forensic interview as substantive evidence at trial. The defendant asserts that
the interview was improperly admitted as a hearsay exception because the exception
under which it was admitted, Tennessee Rule of Evidence 803(26), referenced and
required compliance with Tennessee Rule of Evidence 613(b) and under Rule 613(b), the
forensic interview would have been inadmissible as “cumulative.”

        Hearsay is defined as “a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” Tenn. R. Evid. 801(c). As a general rule, hearsay is not admissible at trial
unless it falls under one of the exceptions to the rule against hearsay. Tenn. R. Evid. 802.

      Tennessee Rule of Evidence 803(26) provides for an exception to the rule against
hearsay for a testifying witness‟s prior inconsistent statement and allows the statement to
be admitted as substantive evidence if the following conditions are satisfied:

       (1) The statement must be otherwise admissible under Rule 613(b).

       (2) The declarant must testify at the trial or hearing and be subject to cross-
       examination concerning the statement.

       (3) The statement must be an audio or video recorded statement, a written
       statement signed by the witness, or a statement given under oath.




                                             18
       (4) The judge must conduct a hearing outside the presence of the jury to
       determine by a preponderance of the evidence that the prior statement was
       made under circumstances indicating trustworthiness.

Tenn. R. Evid. 803(26) & Advisory Comm‟n Cmts. Rule 613(b) provides that
“[e]xtrinsic evidence of a prior inconsistent statement by a witness is not admissible
unless and until the witness is afforded an opportunity to explain or deny the same and
the opposite party is afforded an opportunity to interrogate the witness thereon[.]”

       Extrinsic evidence of a prior inconsistent statement remains inadmissible
       when a witness unequivocally admits to having made the prior statement.
       The unequivocal admission of a prior statement renders the extrinsic
       evidence both cumulative and consistent with a statement made by the
       witness‟ during trial. Extrinsic evidence of a prior consistent statement is
       generally inadmissible and not subject to Rule 613(b).

State v. Martin, 964 S.W.2d 564, 567 (Tenn. 1998) (internal citations and footnote
omitted).

       Prior to trial, the victim made numerous allegations of sexual abuse against the
defendant. However, she recanted most of those allegations at trial. As a result, the State
sought to introduce the forensic interview that the victim had given in which she alleged
sexual abuse by the defendant. The State also sought to introduce the victim‟s testimony
at two juvenile court hearings. Defense counsel agreed that the victim‟s statements at
trial were inconsistent with her previous statements. However, he objected to the
introduction of the forensic interview on the grounds that it violated the defendant‟s right
to confrontation and that it was unreliable. Defense counsel conceded that the juvenile
court hearings could be introduced.

        The trial court agreed that the testimony from the juvenile court hearings could be
introduced. The court also found that the State could introduce portions of the forensic
interview for impeachment. The court noted that the interview occurred close in time to
the alleged offenses and was recorded. The court also noted that the victim‟s story of
sexual abuse had been consistent for a period of more than three years. Defense counsel
stated that, if portions of the forensic interview were going to be introduced, he wanted
the entire interview to be introduced. Thereafter, the State played the forensic interview
for the jury.

      At the onset, we determine that the defendant has waived his claim that the trial
court erred in allowing the State to introduce the forensic interview as substantive
evidence at trial. Although the defendant objected to the introduction of the interview, he
                                            19
did so solely on the grounds that it violated his right to confrontation and that it was
unreliable. He never argued, as he does on appeal, that the interview could not be
introduced because the victim admitted making the prior statements, resulting in the
proof‟s being cumulative and consistent. It is “„elementary that a party may not take one
position regarding an issue in the trial court, change his strategy or position in mid-
stream, and advocate a different ground or reason in this Court.‟” State v. Adkisson, 899
S.W.2d 626, 635-36 (Tenn. Crim. App. 1994) (quoting State v. Dobbins, 754 S.W.2d
637, 641 (Tenn. Crim. App. 1988)). Thus, this issue is waived.

                                     III. Sentencing

       The defendant lastly argues that the trial court abused its discretion in imposing an
effective twenty-two-year sentence in confinement.

       Under the 2005 amendments to the sentencing act, a trial court is to consider the
following when determining a defendant‟s sentence and the appropriate combination of
sentencing alternatives:

       (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 the mitigating and
       enhancement factors set out in §§ 40-35-113 and 40-35-114;

       (6) Any statistical information provided by the administrative office of the
       courts as to sentencing practices for similar offenses in Tennessee; and

       (7) Any statement the defendant wishes to make in the defendant‟s own
       behalf about sentencing.

Tenn. Code Ann. § 40-35-210(b).

       The trial court is granted broad discretion to impose a sentence anywhere within
the applicable range, regardless of the presence or absence of enhancement or mitigating
factors, and “sentences should be upheld so long as the statutory purposes and principles,
                                             20
along with any enhancement and mitigating factors, have been properly addressed.”
State v. Bise, 380 S.W.3d 682, 706 (Tenn. 2012). Accordingly, we review a trial court‟s
sentencing determinations under an abuse of discretion standard, “granting a presumption
of reasonableness to within-range sentencing decisions that reflect a proper application of
the purposes and principles of our Sentencing Act.” Id. at 707. In State v. Caudle, our
supreme court clarified that the “abuse of discretion standard, accompanied by a
presumption of reasonableness, applies to within-range sentences that reflect a decision
based upon the purposes and principles of sentencing, including the questions related to
probation or any other alternative sentence.” 388 S.W.3d 273, 278-79 (Tenn. 2012).

       Under the revised Tennessee sentencing statutes, a defendant is no longer
presumed to be a favorable candidate for alternative sentencing. State v. Carter, 254
S.W.3d 335, 347 (Tenn. 2008) (citing Tenn. Code Ann. § 40-35-102(6)). Instead, the
“advisory” sentencing guidelines provide that a defendant “who is an especially mitigated
or standard offender convicted of a Class C, D or E felony, should be considered as a
favorable candidate for alternative sentencing options in the absence of evidence to the
contrary.” Tenn. Code Ann. § 40-35-102(6).

        A defendant shall be eligible for probation, subject to certain exceptions, if the
sentence imposed on the defendant is ten years or less. Id. § 40-35-303(a). A defendant
is not, however, automatically entitled to probation as a matter of law. The burden is
upon the defendant to show that he is a suitable candidate for probation. Id. § 40-35-
303(b); State v. Goode, 956 S.W.2d 521, 527 (Tenn. Crim. App. 1997); State v. Boggs,
932 S.W.2d 467, 477 (Tenn. Crim. App. 1996). In order to meet this burden, the
defendant “must demonstrate that probation will „subserve the ends of justice and the best
interest of both the public and the defendant.‟” State v. Bingham, 910 S.W.2d 448, 456
(Tenn. Crim. App. 1995) (quoting State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim.
App. 1990)).

       There is no bright line rule for determining when a defendant should be granted
probation. Bingham, 910 S.W.2d at 456. Every sentencing decision necessarily requires
a case-by-case analysis. Id. Factors to be considered include the circumstances
surrounding the offense, the defendant‟s criminal record, the defendant‟s social history
and present condition, the need for deterrence, and the best interest of the defendant and
the public. Goode, 956 S.W.2d at 527. Also relevant is whether a sentence of probation
would unduly depreciate the seriousness of the offense. See State v. Davis, 940 S.W.2d
558, 559 (Tenn. 1997); Bingham, 910 S.W.2d at 456.

      In determining if incarceration is appropriate in a given case, a trial court should
consider whether:

                                            21
       (A) Confinement is necessary to protect society by restraining a defendant
       who has a long history of criminal conduct;

       (B) Confinement is necessary to avoid depreciating the seriousness of the
       offense or confinement is particularly suited to provide an effective
       deterrence to others likely to commit similar offenses; or

       (C) Measures less restrictive than confinement have frequently or recently
       been applied unsuccessfully to the defendant.

Tenn. Code Ann. § 40-35-103(1).             Furthermore, the defendant‟s potential for
rehabilitation or lack thereof should be examined when determining whether an
alternative sentence is appropriate. Id. § 40-35-103(5).

       Additionally, the trial court may order multiple sentences to run consecutively if it
finds by a preponderance of evidence that any one or more of seven different factors
apply, including that:

       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 the sexual acts and the extent of the residual,
       physical and mental damage to the victim or victims[.]

See Tenn. Code Ann. § 40-35-115(b)(5).

       We, therefore, review the trial court‟s sentencing determinations for an abuse of
discretion with a presumption of reasonableness afforded to the trial court‟s decision.
See Bise, 380 S.W.3d at 706; State v. Pollard, 432 S.W.3d 851, 860 (Tenn. 2013).

        The trial court conducted a sentencing hearing, at which the victim‟s younger
sister testified that she was removed from her parents‟ home because of allegations that
the victim had been sexually abused. After moving out of her parents‟ home, she
continued to have visitations with her mother. The victim eventually moved in with their
mother and, when the victim‟s sister visited their apartment, she observed things that
indicated the defendant might be living there also although he was not supposed to be
around the victim. The victim‟s sister learned that the victim testified at trial that the
defendant had not sexually abused her. She was “aggravated” by her sister‟s testimony
but “sort of expected it” because the victim was “persuaded . . . or pressured” by their
mother not to testify against the defendant. The victim‟s sister testified that, when she
                                            22
was ten to twelve years old, the defendant used a belt, spoon, or phone charger to beat her
and left bruises when he did so. She also saw the defendant swing the victim around by
the hair. She said that the defendant‟s acts of physical violence varied in frequency from
month to month.

       The victim‟s sister recalled an occasion when the defendant came into the
bathroom while she was taking a shower and sat on the toilet. The defendant opened the
shower curtain and looked at her naked body. The defendant told her not to tell her
mother what he was doing. This occurred a year or more before the victim made the
allegations in this case. The victim‟s sister testified that the defendant saw her naked on
“[p]lenty” of other occasions and stated that “it was a casual thing.” The victim‟s sister
acknowledged that she did not make any allegations of abuse against the defendant. She
explained that, at the time she was questioned, she did not realize that what the defendant
had done was not normal. However, she testified that the defendant never touched her
sexually.

       In an allocution to the court, the defendant asked for mercy and leniency. He
stated that he had no prior criminal record and did not smoke, drink, or use drugs. He
said that he and his wife were virgins when they got married, and he had never been
unfaithful to her. He stated that he had been an employee in good standing with UPS for
twenty years. He told the court, “I cannot in good conscious claim guilty for the crimes
I‟ve been convicted of. My daughter and I have fallen squarely across Ephesians chapter
6, vers[e]s 1 through 4. And Your Honor, that‟s all I have to say.” The defendant also
provided six character references.

       After the conclusion of the hearing, the trial court took the matter under
advisement and later issued a written sentencing order. The trial court enhanced all of the
defendant‟s sentences upon finding that he had a previous history of criminal behavior
due to his assaultive behavior against the victim‟s sister. See Tenn. Code Ann. § 40-35-
114(1). The court also enhanced all of the defendant‟s sentences upon a finding that the
offenses were committed to gratify the defendant‟s desire for pleasure or excitement,
noting that the testimony “indicated that the defendant discussed his sexual arousal with
the victim and indicated that his interactions with the victim caused him to have an
erection.” See id. § 40-35-114(7). The court enhanced the defendant‟s sentence for the
rape conviction only upon finding that he abused a position of private trust because he
“accomplished the act . . . through the use of his relationship of trust as the father, and the
victim his daughter.” See id. § 40-35-114(14).

       As for mitigating considerations, the trial court acknowledged the letters submitted
in support of the defendant. However, the court “place[d] no weight on the letter[s]
based upon the weight of the testimony and evidence presented at trial.”
                                              23
       After considering the enhancing and mitigating factors, principles of sentencing,
and the nature of the crimes, the court imposed a five-year sentence as a standard
offender for each count of sexual battery by an authority figure, and a twelve-year
sentence as a violent offender on the rape count.

       The court imposed partial consecutive sentencing upon finding by a
preponderance of the evidence that the defendant committed “multiple acts of sexual
abuse . . . over several years.” The court noted that:

       As the father of the victim, the defendant would compare the victim‟s
       breasts to her mother‟s, fondle her breasts, talk with her about his
       masturbation habits, watch her in the shower and take showers with her,
       take naked naps while lying with her, masturbate in front of her and
       digitally penetrated her. All of these actions indicate a wide scope of abuse
       that went undetected by authorities for several years.

Accordingly, the court ordered that the sentences in counts one, six, and seven be served
consecutively to the others for an effective sentence of twenty-two years.

        The defendant argues that the trial court erred in determining the length of his
sentences, in ordering partial consecutive sentencing, and in denying alternative
sentencing. However, the record supports the enhanced sentences imposed by the trial
court. The defendant has a previous history of criminal behavior due to his physically
assaultive behavior toward both the victim and the victim‟s sister, as testified to by both
young women. In addition, there is evidence in the record to support that the offense of
rape was committed to gratify the defendant‟s desire for pleasure or excitement in that the
defendant discussed his sexual arousal with the victim and indicated that his interactions
with her caused him to have an erection. Even if the trial court erred in considering some
enhancing factors as to some convictions, the defendant is not entitled to relief because “a
trial court‟s misapplication of an enhancement or mitigating factor does not invalidate the
sentence imposed unless the trial court wholly departed from the [sentencing act].” Bise,
380 S.W.3d at 706. “So long as there are other reasons consistent with the purposes and
principles of sentencing, as provided by statute, a sentence imposed by the trial court
within the appropriate range should be upheld.” Id. The record supports the length of
sentences imposed by the trial court.

        With regard to consecutive sentencing, the record shows that the defendant
engaged in the sexual abuse of the victim for a period of two years. In a prior statement,
the victim said that the defendant engaged in this behavior about every other day. During
that time, they showered together, took “naked naps” together, and the defendant checked
                                            24
the victim‟s hymen. Following her disclosure of the abuse, the victim saw a therapist for
one year. We cannot conclude that the trial court abused its discretion in imposing partial
consecutive sentencing.

       With regard to the trial court‟s not imposing an alternative sentence, we note that
the defendant was not eligible for probation as the sentence he received was greater than
ten years. Moreover, the record shows that confinement is necessary to avoid
depreciating the seriousness of the offenses and that the defendant has a lack of potential
for rehabilitation in that the defendant, as noted by the State at sentencing, “has no clue . .
. how very, very disturbing and inappropriate his behavior is and criminal. For that
reason, some sort of less restricted alternative counseling treatment . . . would be wildly
ineffective and pointless.”

        In addition, although the defendant suggests that the trial court failed to consider
statistical information provided by the Administrative Office of the Courts, the court
clearly stated that it had considered all relevant sentencing information, and the record
gives us no reason to doubt the court‟s statement.

       Moreover, as to the defendant‟s complaint that he did not submit to a sexual
evaluation as part of the presentence report, he is not entitled to relief. Tennessee Code
Annotated section 39-13-705(a) provides that every “sex offender who is to be
considered for probation or any other alternative sentencing shall be required to submit to
an evaluation for treatment, risk potential, procedures required for monitoring of behavior
to protect victims and potential victims, and an identification under the procedures
developed pursuant to § 39-13-704(d)(1).” Id.

       Those offenders found guilty at trial or who pled guilty without an
       agreement as to length of sentence, probation, or alternative sentencing that
       are to have a presentence report prepared for submission to the court shall
       be required to submit to the evaluation referred to in subsection (a). The
       evaluation shall be included as part of the presentence report and shall be
       considered by the court in determining the sentencing issues stated in this
       section.

Id. § 39-13-705(b). “The evaluation and identification required by subsection (a) shall be
at the expense of the offender evaluated, based upon the offender‟s ability to pay.” Id. §
39-13-705(c).

       The defendant, however, never objected at sentencing to the absence of the report
and has thus waived this issue. See Tenn. R. App. P. 36(a). In addition, because no
objection was made at the hearing, it is not clear whether the defendant submitted to an
                                              25
evaluation. Absent a showing that he submitted to the evaluation, the defendant “cannot
establish on appeal his claim to a non-incarcerative sentence because he failed to submit
to the requisite sex offender evaluation and to ensure that the report generated therefrom
was considered by the lower court in passing sentence on him.” See State v. Richard
Albany Goode, No. E2002-01228-CCA-R3-CD, 2003 WL 1737904, at *2 (Tenn. Crim.
App. Apr. 2, 2003). Furthermore, because the trial court imposed a sentence of twelve
years on the rape conviction, the defendant was ineligible for probation on that conviction
and would have been evaluated once in custody. See State v. Evangeline Combs and
Joseph D. Combs, Nos. E2000-02801-CCA-R3-CD, E2000-02800-CCA-R3-CD, 2002
WL 31118329, at *77 (Tenn. Crim. App. Sept. 25, 2002), perm. app. denied (Tenn. Jan.
27, 2003) (“[W]here a sex offender is destined to be incarcerated regardless of the
contents of the report, a trial court‟s failure to consider it at the time of sentencing is
immaterial and a waste of resources.”)

       In sum, the record reflects that the trial court imposed the sentence after proper
consideration of all the evidence and testimony, the purposes and principles of our
sentencing act, and consideration of the enhancement and mitigating factors. See Bise,
380 S.W.3d at 706. In light of the presumption of correctness attendant to the trial
court‟s findings, we discern no abuse of discretion in the trial court‟s imposition of a term
of twenty-two years.

                                     CONCLUSION

        Based on the foregoing authorities and reasoning, we affirm the judgments of the
trial court. However, we note that the judgment form in Count 7 incorrectly reflects the
rape conviction as a Class C felony. Therefore, we remand for entry of a corrected
judgment, showing that the rape conviction is a Class B felony.


                                                  _________________________________
                                                  ALAN E. GLENN, JUDGE




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