          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT NASHVILLE                FILED
                           JANUARY SESSION, 1999                June 1, 1999

                                                            Cecil W. Crowson
                                                           Appellate Court Clerk
STATE OF TENNESSEE,                      )   C.C.A. NO. 01C01-9801-CR-00016
                                         )
            Appellee,                    )
                                         )   DAVIDSON COUNTY
V.                                       )
                                         )
                                         )   HON . CHE RYL BLAC KBU RN,
BARRY WADDELL,                           )   JUDGE
                                         )
            Appe llant.                  )   (RAPE OF A CHILD)



FOR THE APPELLANT:                           FOR THE APPELLEE:

LIONEL R. BARRETT, JR.                       JOHN KNOX WALKUP
Washington Square Two, Suite 418             Attorney General & Reporter
222 Se cond A venue N orth
Nashville, TN 37201                          DARYL J. BRAND
(On App eal Only)                            Assistant Attorney General
                                             2nd Floor, Cordell Hull Building
DIANNE TURNER                                425 Fifth Avenue North
Trial Lawyers Building                       Nashville, TN 37243
430 Third Avenue North, Suite 101
Nashville, TN 37201-1111                     VICTO R S. JO HNS ON, III
(At Trial Only)                              District Attorney General

DAVID A. COLLINS                             WILLIAM REED
211 Printers Alley Building, Suite 400       Assistant District Attorney General
Nashville, TN 37201                          Washington Square, Suite 500
(At Trial Only)                              222 2nd Avenue North
                                             Nashville, TN 37201-1649




OPINION FILED ________________________

AFFIRMED IN PART; REVERSED AND MODIFIED IN PART

THOMAS T. WOODALL, JUDGE
                                    OPINION
       The Defendant, Barry Waddell, appeals as of right from his conviction in the

Davidson Coun ty Crimina l Court. After a jury trial, Defendant was convicted of two

(2) counts of rape of a child (Counts 1 and 2) and two (2) counts of aggravated

sexual battery (Counts 3 and 4). Defendant was sentenced to twenty-five (25) years

for each count of rape of a child and ten (10) years for each count of aggravated

sexual battery, with all sentence s to be served consecutively, for an e ffective

sentence of seventy (70) years. Defendant argues that the trial cou rt impro perly

sentenced him to the maximum period of inca rcerat ion for h is rape of a ch ild

convictions and erred in ordering his sente nces to b e served conse cutively. W e

affirm in pa rt, and reve rse and modify in p art.



       When an accused challenges the length, range or the mann er of service of a

sentence, this court has a duty to conduct a de novo review of the sentence with a

presumption that the determinations made by the trial court are correct. Tenn. Code

Ann. § 40-35-401(d). This presumption is “conditioned upon the affirm ative showing

in the record that the trial court considered the sentencing principles and all relevant

facts and circum stances.” State v. Ashby, 823 S.W .2d 166 , 169 (T enn. 19 91).



       In conducting a de novo review of a sentence, this court must consider: (a) the

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

report; (c) the principles of sentencing and arguments as to sentencing alternatives;

(d) the nature and characteristics of the criminal conduct involved; (e) any statutory

mitigating or enha ncem ent factors ; (f) any statement that the defendant mad e on h is

own behalf; an d (g) the p otential or lac k of poten tial for rehab ilitation or treatm ent.

                                             -2-
Tenn. Code An n. §§ 40 -35-102 , -103, an d -210; see State v. S mith, 735 S.W .2d

859, 863 (T enn. Crim. A pp. 1987).



      If our rev iew refle cts that the trial court followed the statutory sentencing

procedure, imposed a lawful sentence after having given due consideration and

proper weight to the factors and principles set out under the sentencing law, and

made findings of fact adequately supported by the record, then we may no t modify

the senten ce even if we wou ld have p referred a different res ult. State v. Fletcher,

805 S.W .2d 785 , 789 (T enn. Crim . App. 19 91).



      At trial, the vic tim, K.S . (it is the policy of this court not to refer to child victims

of sexual offense s by name ), testified that her best friend was Whitney Rickman,

stepdaughter of the Defendant. The victim was ten (10) years old at the time of trial.

When she w as se ven (7 ) years old in 1994, K.S. visited Whitney Rickman almost

every weekend. Defendant took her into the upstairs bedroom to “play modeling”

while he took photographs. The victim indicated receiving “bad touches” from the

Defendant while “mode ling” in an u pstairs be droom alone w ith the De fendan t. K.S.

recalled that no rmally Wh itney Rickman would be outside the door with the door

closed to the bedroom. K.S. indicated that her private parts were touched with the

Defe ndan t’s mouth, his finger and his penis.             This touching included digital

penetration and cunnilingus. The victim stated that the Defendant instructed her not

to tell anyone abo ut these even ts. From K.S .’s testimony, this abus e occurred

frequently for a period of 1.5 years.



      Arthur William Rees, employed by the Youth Services Division of the Nashville

Police Depa rtmen t, testified at trial that he received a complaint regarding an

                                             -3-
allegation of child abuse of K.S. on April 3, 1995. Rees m et with the vic tim’s pare nts

on April 4, 199 5, and th en inte rviewe d K.S . the follo wing d ay at M cMur ray Mid dle

Scho ol.   Wh en he told the victim why he was there, the victim be came “very

distraught, withdrawn, and she seemed like she didn’t want to talk. It affected her

very -- it was a visible . . . she was visibly shaken when we told her why we were

there to talk to her.” K.S. became so upset and defensive that the interview had to

be terminated until a later date.



      Nancy Quig gle wa s the th erapis t for the v ictim at the Rape and Sexual Abuse

Center. Quiggle testified at the senten cing hea ring that K .S. had been a therapy

patient since J uly 199 5. The victim particip ates in therap y week ly in a ver y sma ll

group setting. When Quiggle first met K.S., Quiggle observed that she was:

      carrying a lot of guilt . . . felt very responsible for a lot of what had
      happened to her . . . felt a lot of shame to the point where when she
      initially disclose d, she left a lot of what had happened out of the
      disclosure, and it took q uite a b it of time to deve lop a re lations hip with
      me and starting to build some trust and starting to understand that what
      had happ ened was n ot her fa ult befo re she was a ble to really come out
      with all the thin gs that ha d occu rred.

Quig gle stated that K.S. was “afraid that if she told, she w ould be punishe d or hurt;

that there was, you know, the threat made to her that if you tell, you know, I will hurt

you, and s o she was a fraid that if she did tell, he would ca rry forth on his threat and

she would b e hurt.”



      Quig gle described that initially the victim did not want to talk about the sexual

abuse, but that she only would write down four (4) things that had occurred on a

piece of paper. She erased these four (4) things, bu t eventua lly was able to rewrite

them and keep it written on the paper. Initially, K.S. described having frequent

nightmares, full of scary things and people.         Quiggle could not recall if these

                                            -4-
nightmares were specific to the abuse. After several months, K.S. told Quiggle that

she thought she could use some dolls to depict what had happened to her. Even

when the victim used objec ts to de scribe the se xual ab use, s he wo uld as k Quig gle

to look a way. W hile K.S. did not want to describe to her parents the various

incidents of sexual abuse, she allowed Quiggle to tell them when she was not

presen t.



       Quig gle noted that these sexual crimes committed upon K.S. have affected

her ability to tru st othe r individu als. W hile Qu iggle c ould not state exactly how long

the victim would need to continue therapy (estimating six (6) months), she noted that

the reason that the therapy had continued this long was because “of the continued

stress of what wound up happening. I think once she feels secure that she is safe,

that her abuser is in prison and she is not going to have to deal with him anymore,

she may phase off therapy.” In terms of the victim’s emotional status, Quiggle stated

that “it is still to this day very difficult for her to talk about it, and even if she hea rs

about sexual abus e. She told m e onc e that in a class , they ha d som ebod y com e in

to do a prevention program, and that it was so upsetting to her that she cried and left

the room, so I think the subject still triggers in her a lot of emotion, negative emotion

and sadn ess and fea r.”



       On cross-examination, Quiggle stated that throughout her therapy, K.S. had

maintained good grades, had not exhibited any signs of antisocial behavior, nor had

she withdrawn from her friends or family. However, Quiggle stated that while an

outsider could not immediately notic e any adverse effects upon the victim, the

distress K.S. suffered “is very internal . . . because [K.S.] tends to be able to keep

whatever pain she is fe eling in side p retty we ll, and it co mes up wh en it is triggered.

                                             -5-
. . but I am seeing things that make me rea lize that there are still som e interna l stuff

that is going on w ith [her] that I’m concern ed about.”



       Dale Shade, the victim’s father, testified that K.S. was ten (10) years old at the

time of the se ntenc ing he aring. S hade stated that K.S . had n ightm ares p eriodic ally

since the abu se occu rred. Befo re the origin al trial date was postponed from October

1996, Shade described that the victim was obviously nervous until a week or so

before the trial date when she “was almo st at a re lieved s tandp oint be caus e she felt

that it wa s goin g to fina lly be over or her part in it.” After learning that the trial was

to be delayed until March 1997, K.S. became very upset because she had wanted

to “get it over with.” As the March trial date approached, the entire family became

extremely anxious.



       When asked to desc ribe ho w thes e even ts had affecte d their d augh ter, Da le

Shade read the following prepared response:

       How has wh at happ ened to [K.S.] affec ted us? Wh ere do w e start?
       For the past two years, we have been looking over our s houlde rs. W e
       don’t let [her] out of our sight, even when she is in our own backyard.
       There are only a few peo ple we a llow [her] to s pend tim e with or even
       spend the nig ht with. W e’ve be com e very p rotectiv e, som etime s a little
       too much, but hopefully that will lessen with time. [K.S.] has spent the
       last year and a half goin g to coun seling eve ry week. W e don’t k now
       how long this will, she will have to continue, or p eriodically will she have
       to see someone for the rest of her life. And what will happen to her as
       she gets older and starts having relationships with boys? We are
       wondering, will these events be brought all back up?

       During this time, [she] has had nightmares, a lot of the times, she wants
       to sleep with her mother to help her get through this. She says she
       feels safer that w ay. W e try to reassure her so that she won’t be afraid.
       He took her innocence away. She is a little girl who has be en put into
       an ad ult situation. This is a part of our life that w e have unfortu nately
       kept from our parents because we don’t know how [her] grandp arents
       will take this information and if they will tre at her d ifferently . We don’t
       want that to happen, and we do n’t kno w how they will respond to these
       events.

                                             -6-
      It has changed all of he r views . You th ink it will never happen to you.
      You think that you can protect your child from the big bad wolf, but then
      when the big bad wolf happens to be a friend’s father, how can you
      continue to trust and teach [K .S.] how to trust peo ple? W e want [her]
      to have a fun ch ildhoo d, but th is happened, and it has taken away part
      of her childhood, a part that can never be regained. We don’t want this
      to happe n to anyo ne else, a nd the fact that he has used his own
      daughter for his sick satisfaction, we feel that som eone like this s hould
      not be allowed back into our society until he has served the maximum
      amount of time for his crimes, and in my opinion, that is not even
      enough, a severe enough time.

      Following Dale Shade’s testimony, the trial court questioned him regarding the

nature of relations hip they h ad with the Defend ant prio r to their a waren ess o f this

situation. Shad e state d that th e Def enda nt was living with his girlfriend Carol and

her daugh ter W hitney at that time, and they would drop off the victim at the

Defe ndan t’s home nearly eve ry week. The y had a ll gone out to dinner several times

together, with the Shad e family having the Defenda nt and his fam ily over to their

home on numerous occasions. Shade noted that he had just built a pool, and the

Defendant had come over and swam in their pool with the girls. Shade described

their relationship with the Defendant as one in which they trusted Defendant with not

only their property, but trusted h im comp letely with the care of their da ughter.

Because Shade often worked on Sundays and was off on Saturdays, the Defendant

would normally babysit the girls on Sunday and Shade would watch them on

Saturday.   After K.S.’s parents learne d of the allega tions o f sexua l abus e, this

babysitting relationship with the Defendant was terminated.



       Shade then read a letter addressed to the trial court, written by the victim,

which stated:

      Dear Judge: I hope that you all decide that Barry stays in jail a very long
      time [jail underlined many times]. Because of what he did, it is like he
      put a dent into my life. It’s like when I was born, I started with a straight
      line, but now o f what h e did, n ow m y line ha s a de nt in it, plu s I don ’t
      think it was right for him to touch me in the places he did. Well, I just

                                            -7-
       hope he stays in jail [underlined several times] until he is dead [several
       exclam ation poin ts].

       I hope h e stays in ja il . . . I mean it. . . Love , [K.S.].



       The Defendant testified on his own behalf, stating that he was falsely accused

and convicted of a crime which he did not commit. Defendant explained that he was

accused of this crime only because he tried to end his relationship with Carol

Rickman. Defendant is a member of the Haywood Hills Baptist Church and has

asked for forgiveness for his adulterous life. Defendant stated that he had been

around lots of little girls and never had any desire to do anything to them. Other

evidence presented on the Defendant’s behalf included Honorable Discharge papers

from the Air Force .



       Following the presentation of proof at the sentencing hearing, the trial court

stated that it would consider the evidence at trial and the sentencing hearing, the

principles outlined by the General Assembly for sentencing, any arguments of

coun sel, the nature and the characteristics of the crim e, any enhancing and

mitigating factors and the statement of the Defendant.                 In looking at the

enhancement factors, the trial court considered Counts One (1) and Two (2) (rape

of a child) jointly and Counts Three (3) and Four (4) (aggravated sexual battery)

jointly.

.

       The trial court found as applicable enhancement factor (1), that defendant has

a previo us hist ory of cr imina l convic tions o r crimin al beh avior in addition to that

necessa ry to establish the appropriate range. Tenn. Code Ann. § 40-35-114(1).

Defendant admitted to using marijuana on previous occasions in the past.                In



                                               -8-
addition, the trial court noted that it could consider any evidence of sexual crimes not

charged in this case, based upon the number of times and the length that this abuse

went on.    State v. Hunter, 926 S.W .2d 744, 74 8-49 (Ten n. Crim. App . 1995).

Enhancement factor (6), tha t the person al injuries inflicted upon the victim were

particularly great, was also applied by the trial court. Tenn. Code Ann. § 40-35-

114(6). Evidence that K.S. required counseling as a result of this incident, had

nightmares, and continued to be emotionally traumatized by this sexual abus e were

all suppo rtive of this facto r. See State v. McKnight, 900 S.W.2d 36, 54 (Tenn. Crim.

App. 19 94).



      Because this was a modeling game wherein the Defendant took a camera and

took pictures of a partially nude child , the trial c ourt fou nd the eviden ce clea rly

supported factor (7) as the offense was co mm itted to gratify the Defend ant’s desire

for pleasure or excitement as to the convictions for rape of a child. Tenn. Code Ann.

§ 40-35-114(7). The trial court correctly found that this factor only applied to the

convictions for rape of a child. Intent to gratify a desire for pleasure and excitement

is a necessa ry element of ag gravated sexu al battery and that factor cannot be used

to enhance the sentences for the conviction s of this offen se. See State v. Kissinger,

922 S.W .2d 482 , 498-90 (Tenn . 1996); State v. Hayes, 899 S.W.2d 175, 185 (Tenn.

Crim. App. 1995). Finally, the trial court applied factor (15) as the Defendant abused

a position o f trust, public o r private, or used a special skill in a manner that

signific antly facilitated the commission or the fulfillment of this offense. Tenn. Code

Ann. § 40-35-114(15).       The trial court based application of this factor upon

Defe ndan t’s status as a friend of the fam ily, entrusted to babysit their child, and the

fact that the abuse had gone on for some period of time.




                                           -9-
      As far as mitigating factors, the only applicable mitigating factor was (13), that

Defendant had been honorably discharged from the Air Fo rce. Tenn . Code Ann. §

40-35-113 (13). While Defendant relied u pon h is stable work history and lack of prior

criminal record, the trial court refused to consider these. Thus, the trial court found

enhancement factors (1), (6), and (15) and mitigating factor (1 3) app licable to all

convictions. In addition, it found enhancement factor (7) also applicable to the

convictions for rape of a child. In a sentencing order filed approximately six (6) days

after the sente ncing he aring, the tria l court state d that it “gave great we ight to

enhan cing facto rs 6 and 15 in calcu lating the d efenda nt’s sente nce.”



      The s entenc e for a Ra nge I, Class A felony is fifteen (15) to twenty-five (25)

years. Tenn. Code Ann. § 40-35-112(a)(1). As to Counts One (1) and Two (2), the

trial court found the maximum sentences were warranted and justifiable under the

facts in this record and the application of enhance ment factors (1 ), (6), (7) and (15).

For Counts Three (3) and Four (4), the sentence for a Range I, Class B felony is not

less than eigh t (8) nor m ore than twelve (12 ) years. T enn. C ode An n. § 40-35-

112(a)(2). In consideration of enhancement factors (1), (6) and (15), the trial court

reasoned that a ten (10) year sentence, the mid-point of the rang e, was a ppropria te

on each of those counts.



      The trial court stated that it considere d the presum ptive senten ce for Co unts

1 and 2 to b e a twen ty (20) year s entence, the mid-range of that sentence. Tenn.

Code Ann. § 40-35-210(c) (1995). This was error. The presumptive sentence for

Class A felon ies com mitted prior to J uly 1, 19 95 is the minimum sentence. Because

the Defendant committed the offenses before the July 1, 1995 amendment of

Tennessee Code Annota ted section 40-35-210, the minimum sentence in the

                                          -10-
applic able range is the presumptive senten ce. See Tenn. Code Ann. § 40-35-

210(c)(1990) (Repe aled July 1 , 1995); State v. Ivory Thomas, No. 02C01-9705-CR-

00179, Shelby County (Tenn. Crim. App., at Jackson, April 24, 1998) (No Rule 11

application filed). The record reflects that the authorities were notified of these

offenses in April 1 995, a fter wh ich the eviden ce is conclusive that no further abuse

occurred. Since the trial court applied an incorrect presum ptive senten ce on C ounts

1 and 2, there is n ot a pres umptio n of corre ctness fo r the sen tences for rape o f a

child, and our review is de novo for these s entenc es.



       Defendant argue s that h is previo us crim inal behavior, enhancement factor (1),

was applie d by the trial cou rt in error as it is unclear as to what other sexual crimes

are being referred to a nd Defen dant’s use of m arijuana occurred over twenty (20)

years prior to the tria l. Wh ile the trial court did refer to Defendant’s admission in the

presentence report of using marijuana in the past, the trial court heavily relied upon

the numbe r of times and the length that the sexu al abuse oc curred. In State v.

Hunter, 926 S .W .2d at 7 48-49 , this co urt held that a d efend ant’s p rior crim inal

behavior may include e vidence of sexua l crimes c omm itted but no t prosecu ted. W e

agree with the trial court’s assessment that the Defendant’s criminal behavior of

sexua lly abusing the victim was an appropriate application of enhancement factor

(1).



       Second ly, the Defendant asserts that “in the absence of any personal injuries”

it is improper to use enhancement factor [6] in this manner. The trial court relied

upon the testimony that K.S. was scared, had nightmares and continued to req uire

counseling as a result of the Defendant’s abuse in applying factor (6). In State v.

McKnight, 900 S.W.2d at 54, this court held that the fact that two (2) of the victims

                                           -11-
of sexual abuse required counseling was sufficie nt to su pport th e app lication of this

enhancement factor. Clearly, the testimony demonstrated that K.S. had many

problems during therapy and would need to continue therapy for an indefinite period

into the future. We agree that this psychological trauma in the case sub judice

necessitates th e application of factor (6 ).



       Finally, the Defendant argues that the application of enhancement factor [15]

was erroneous as it carries the private trust position to an unacceptable degree.

Defendant fails to cite any authority to support his argument; therefore, this issue is

waived. Tenn. Ct. Crim . App. R . 10(b); State v. Killebrew, 760 S.W.2d 228, 231

(Tenn. Crim. A pp.), perm. to appeal denied, id. (Tenn. 1988). Notwithstanding

Defe ndan t’s failure to cite autho rity, the law is cle ar in Ten nesse e that a defendant

occupying a relationship with a victim entrusted to his care which promotes

“confidence, reliability or faith” in that defendant is sufficient for application of

enhancement factor (15) . See Kissinger, 922 S.W.2d at 488-89. There is no error

in the length of Defendant’s sentences for Counts 3 and 4, aggravated sexual

battery.



       Regarding Defendant’s argument that the trial court erred in failing to consider

any mitigating factors, we can find no error. W hile the pre sence of a criminal record

is an enh ancem ent facto r, the absen ce of suc h is not a m itigating facto r. State v.

Robinson, 971 S.W .2d 30, 48 (T enn. Crim. A pp. 1997) (citing State v. Keel, 882

S.W.2d 410, 42 2-23 (T enn. C rim. App .), perm. to appeal denied (Tenn. 1994 )).

Partic ularly in view of Defendant’s extensive criminal ac tivity in this case,

Defe ndan t’s lack of prior criminal convictions was appropriately ignored. W hile




                                           -12-
Defe ndan t’s work record and contribution to his family may be entitled to some

conside ration, we find that it carrie s little weight in th is case.



       Reviewing the sentences for rape of a child de novo without the presumption

of correctness, we note the following. Applying enhancement factors (1), (6), and

(15), and mitigating factor (13) in this case, the trial court se ntence d Defe ndant to

ten (10) years on each conviction for aggravated sexual battery, the exact mid-point

of the range. In its sentencing order, the trial court stated that it gave great weight

to factors (6) and (15) in calculating Defendant’s sentences for all four convictions,

including rape of a child.



       The trial court applied one (1) additional enhancement factor to the sentences

for rape of a child, that be ing enhanc ement fac tor (7). The trial court did pro vide in

its sentencing order the theoretical statement that “even if the court had calculated

the sentence [for rape of a child] begin ning a t fifteen (1 5) yea rs” the c ourt wo uld

have imposed the maximum sentence of twenty-five (2 5) years. Howeve r, the court

based this upon the “strength of the enhancing factors.” The trial court enhanced

the aggravated sexual battery sentences to the mid-point of the range based upon

the strength of enha ncem ent factors (1), (6), and (15). Of particular importance and

significance in our de novo review is tha t the trial court d id not give “g reat weig ht” to

enhancing factor (7), the only additional factor applied to the sentences for rape of

a child. Based upon our review of the entire record, including the findings of fact and

weight afforded to the enhancing and m itigating factors by the tr ial cou rt, we ho ld

that the sentence for each conviction for rape of a child should be enhanced eight

(8) years for a total sentence of twenty-three (23) years for each conviction for rape

of a child, and the judgm ents for ea ch such conviction are mo dified acc ordingly.

                                             -13-
       For Defendant’s second issue, the imposition of consecutive sentences, he

asserts that there was no clear indication that K.S. would suffer great mental

damage for the rest of her life, and that the trial court failed to con sider D efend ant’s

lengthy work record, church activity, lack of criminal record and other evidence

supporting his potential for rehabilitation.      The trial court determined that the

sentences were to be served consecutively based upon Defendant’s convictions for

two (2) or more statutory offenses involving the sexual abuse of a minor. Tenn.

Code Ann. § 40-35-115(b)(5 ). The trial co urt alluded to the dev astation o f both

families as justification for the sentences being consecutive. In addition, the trial

court also found that the extensive damage to the victim and her fam ily as a re sult

of the Defendant’s behavior and the statements of the Defendant justified that the

consecutive sentencing was reasonably related to the severity of the offenses and

was necessary in order to protect the public from further serious criminal conduct by

the Defen dant.    State v. W ilkerson, 905 S.W .2d 933 , 939 (T enn. 19 95).            In

summation, the trial court stated that is was beyond the court’s belief that Defendant

would sugge st that thes e charg es were brough t in reveng e. The tria l court felt

Defendant’s testimony was simply not credible.



       If a defendant is convicted of two (2) or more statutory offenses involving

sexual abuse of a mino r, with consideration of the aggravating circumstances arising

from the relationship between the defendant and victim or victims, the time span of

defen dant’s undetected sexual activity, the nature and scope of the sexual acts and

the extent of the residual, physical an d mental da mage to th e victim, the court may

impose consecutive sentences. Tenn. Code Ann. § 40-35-115(b)(5). Due to the

Defe ndan t’s status as a friend of the family, trusted to care for K.S. in their absence,

the extensive time span of the abuse, the nature of the sexual ab use, inclu ding bo th

                                           -14-
cunnilingus and digital penetration, as well as the extensive residual mental distress

and dama ge the victim suffered, we can find no error in the trial court’s imposition

of consecutive sentences. Furthermore, the consecutive nature of the sentences

was correctly justified as it was reasonably related to the severity of the crimes

Defendant comm itted again st K.S. and is nece ssary to protec t the ge neral p ublic

from furth er acts of s exual ab use of m inors. Th is issue is w ithout me rit.



                                       C ONCLUSION



       The trial court used the incorrect presumptive sentence for the determination

of Defendant’s sentences for Counts 1 and 2. The sentences for each conviction for

rape of a child are modified to twenty-three (23) years. The trial court committed no

error in imposing consecutive sentences and in the length of sentences imposed for

Coun ts 3 and 4. Acc ordingly, the judgm ents in Coun ts 3 and 4 are affirmed. The

effective se ntence for all coun ts is sixty-six (66) y ears.



                                   ____________________________________
                                   THOMAS T. W OODALL, Judge




CONCUR:



___________________________________
JOHN H. PEAY, Judge


___________________________________
JERRY L. SMITH, Judge




                                            -15-
