        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                March 22, 2016 Session


         STATE OF TENNESSEE v. STEVIE MICHAEL IRWIN, JR.

                  Appeal from the Criminal Court for Knox County
                  No. 96977    Jon Kerry Blackwood, Senior Judge




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

Defendant, Stevie Michael Irwin, Jr., was found guilty of two counts of rape of a child,
two counts of attempted rape of a child, one count of aggravated sexual battery, and one
count of incest. On appeal, Defendant challenges the failure of the State to properly elect
offenses; the sufficiency of the evidence for the rape and attempted rape convictions; dual
convictions for rape of a child in Counts One and Three as violating his right to due
process; and his sentence as excessive. After a review of the record, and in light of the
recent supreme court holding in State v. Qualls, 428 S.W.3d 1 (2016), we affirm the
convictions and sentences.

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

TIMOTHY L. EASTER, J., delivered the opinion of the Court, in which JOHN EVERETT
WILLIAMS and NORMA MCGEE OGLE, JJ., joined.

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

Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Senior Counsel;
Charme Allen, District Attorney General; and Ashley McDermott, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                       OPINION

       This is Defendant‟s direct appeal from a Knox County jury‟s verdict for various
sexual offenses committed by Defendant against his minor daughter over a forty-five
month period. The trial imposed an effective sentence of thirty-five years in the
Tennessee Department of Correction.

        In April of 2011, Defendant was charged in an eight-count presentment by the
Knox County Grand Jury with five counts of rape of a child, one count of attempted rape
of a child, one count of aggravated sexual battery, and one count of incest for events
occurring between February 1, 2007, and October 19, 2010. The charges were based on
allegations made by Defendant‟s daughter, the victim.1 Specifically, the presentment
alleged rape of a child in Count One by virtue of penile/vaginal penetration; rape of a
child in Count Two by penile/oral penetration; rape of a child in Count Three by
digital/vaginal penetration; rape of a child in Count Four by object/vaginal penetration;
attempted rape of a child in Count Five by attempted penile/anal penetration; rape of a
child in Count Six by causing the victim‟s step-brother to engage in penile/vaginal
penetration; aggravated sexual battery in Count Six by oral/breast contact; and incest in
Count Seven by penile/vaginal penetration of his daughter.

       At the time the abuse started, the victim was approximately four years of age. She
lived in a trailer with Defendant, her mother, her older step-brother,2 and her two younger
siblings. The victim and the step-brother slept on the couch at the time because the
window in the victim‟s bedroom was broken.

        The victim reported the abuse to her mother when she was approximately eight
years of age and in the third grade. She did not remember exactly when the abuse started
but stated that it happened almost every day for a long period of time. Her mother, in
turn, reported the abuse to the Department of Children‟s Services. The victim was taken
to the hospital where an exam was performed. Detective Brian Williams of the Knox
County Sheriff‟s Office was assigned to the case. He interviewed Defendant, the victim,
the step-brother, and the mother. After a search of the home, several items were seized:
(1) two pairs of girl‟s panties; (2) men‟s underwear; (3) bed sheets; (4) a pillow sham; (5)
a blanket; (6) a comforter; (7) five bath towels; and (8) a piece of plastic sheeting.
Buccal swabs were taken of all four people interviewed.

        Jennifer Milsaps, a Special Agent forensic scientist in the serology and DNA unit
of the Tennessee Bureau of Investigation Crime Lab in Knoxville, testified at trial.
According to Special Agent Milsaps, the results of testing the pair of green panties seized
from the house indicated the presence of the DNA of the victim and Defendant in the
crotch area. The mother and step-brother were excluded as possible contributors. No
other items were submitted for testing. Special Agent Milsaps agreed that DNA could be

       1
           It is the policy of this Court to protect the identity of the victims of sexual abuse.
       2
           The step-brother is approximately four years older than the victim.
                                                    -2-
transferred from other clothing or from a towel to the panties. The vaginal swabs taken
from the victim on the night she made the allegations were negative for the presence of
sperm.

       The victim was twelve years old at the time of trial. According to the victim,
Defendant started the abuse by “touching” her “breasts and private parts” with his hands
and mouth. Defendant also touched her vagina, using “his penis,” “his fingers,” and “his
mouth.” The victim testified that it went on “for like, a long time” and that her step-
brother was often home at the time of the abuse. The victim described being raped
“almost every day.” She vividly described Defendant‟s ejaculations as “clear-ish, but yet
like a - - clear-ish, white-ish, but yellow-ish stuff” that Defendant referred to as “baby
juice.” Defendant also put “just his finger” inside her vagina, and she recalled him
“sucking” on her breasts. Defendant also licked her vagina. On one particular occasion,
Defendant sat on the victim while she was lying on her stomach and attempted to put his
penis in her “butt.” Defendant was unsuccessful because the victim was “moving.” The
abuse happened in Defendant‟s bedroom.

       The victim also described an occasion on which Defendant “tried to make [her
step-brother] do it with [her].” The victim‟s step-brother corroborated this particular
episode, explaining that he was around twelve years old at the time and both he and the
victim were naked in Defendant‟s bedroom. Defendant was “giving instructions.” For
example, Defendant told them to take off their clothes and instructed the victim to give
her step-brother oral sex. The step-brother was unable to “get [it] up” and eventually
“freaked out” and left. Defendant implied that he would have sex with the victim after
the step-brother left the room.

       On cross-examination, the victim admitted that she had experienced a wide variety
of mental and personality problems since early childhood, including visual and auditory
hallucinations. The victim also reported that she had been under the care of ten different
therapists since being separated from her family and that she had lived in a total of nine
different facilities, group homes, and/or foster homes in the four years since she reported
the abuse. The victim admitted various behavioral difficulties while in group care,
including kicking a pregnant foster mother and slamming someone‟s hand in a door out
of anger. The victim also admitted that she previously told case workers with the
Department of Children‟s Services that Defendant only touched her breast one time with
his hand.

      The step-brother testified that he recalled hearing “noises” often coming from
Defendant‟s bedroom. These noises happened when his mother was not present at the
home. Some of the noises sounded like “moaning.” He did not actually see anything
happen between Defendant and the victim.

                                           -3-
       The step-brother admitted that he and the victim engaged in sexual “penetration”
on more than one occasion, starting around the time the victim was five years old and he
was eight. The step-brother learned about sexual things from Defendant and “this kid
named T[].” He explained that Defendant taught him about sex, even making him a
“penis growing pump” out of a tube when he was eight or nine years of age. The first
time anything happened between the step-brother and the victim, the two were “literally
rubbing on each other.” The step-brother also admitted that he and “T[]” had sex with
the victim and that he had convinced the victim to have sex with other people.

       At the conclusion of the State‟s proof, Defendant moved for a judgment of
acquittal on Counts Two (alleging penile/oral penetration), Four (alleging object/vaginal
penetration), and Six (alleging penile/vaginal penetration of victim by the step-brother at
the direction of Defendant). The State conceded as to Counts Two and Four. The trial
court agreed with the concession and amended Count Six to attempted rape of a child
based on the proof presented at trial. Defendant elected not to testify and did not present
additional proof.

       The jury found Defendant guilty of rape of a child in Counts One (alleging
penile/vaginal penetration) and Three (alleging digital/vaginal penetration). Additionally,
Defendant was found guilty of two counts of attempted rape of a child in Count Five
(alleging attempted penile/anal penetration) and Count Six (alleging attempted
penile/vaginal penetration of victim by the step-brother at the direction of Defendant) as
well as one count of aggravated sexual battery in Count Seven (alleging oral/breast
contact) and one count of incest in Count Eight. The trial court sentenced Defendant to
twenty-five years for each conviction for rape of a child, ten years for each conviction for
attempted rape of a child, ten years for the conviction for aggravated sexual battery, and
five years for the conviction for incest. The trial court ordered partial consecutive
sentences, imposing a total effective sentence of thirty-five years.

       Defendant filed a timely notice of appeal after the denial of a motion for new trial.
On appeal, Defendant argues that the State failed to properly elect the particular offenses
to be submitted to the jury; that the evidence was insufficient to support the convictions
for two counts of rape of a child and two counts of attempted rape of a child; that the trial
court improperly sentenced Defendant to an effective sentence of thirty-five years; and
that the convictions for rape of a child in Counts One and Three violate due process
because they stem from a continuous criminal episode.

                                  I. Election of Offenses

       Defendant argues that the trial court erred by failing to require the State to
properly elect the offenses submitted to the jury. Specifically, Defendant insists that
Count One alleged penile-vaginal penetration occurring between on or about February 1,
                                            -4-
2007, and October 19, 2010, and Count Three alleged digital-vaginal penetration
occurring between on or about February 1, 2007, and October 19, 2010, and that the
testimony at trial “did not establish any detail that would guarantee that [Defendant]
received a unanimous verdict on Counts [One] and [Three].” Defendant admits that he
did not object at trial but raised the issue in a motion for new trial. Defendant argues that
he is entitled to plain error relief. The State argues that Defendant waived the issue at
trial and is not entitled to plain error relief.

        The Tennessee Constitution protects the right of a criminal defendant to a
unanimous jury verdict. See State v. Lemacks, 996 S.W.2d 166, 169-70 (Tenn. 1999).
Our supreme court has held that when the evidence indicates that the defendant has
committed more offenses against a victim than the number of offenses charged, the
prosecution must elect the particular offense as charged in the indictment for which
conviction is sought. See State v. Adams, 24 S.W.3d 289, 294 (Tenn. 2000); State v.
Brown, 992 S.W.2d 389, 391 (Tenn. 1999). The doctrine of election is particularly
important in sexual abuse cases against children that occur over a lengthy period of time
because each unlawful act is a separate substantive offense rather than a continuous
offense. Tidwell v. State, 922 S.W.2d 497, 501 (Tenn. 1996). “The two primary
purposes of this election requirement are „to preserve a criminal defendant‟s right under
the state constitution to a unanimous jury verdict, and to allow the State some latitude in
the prosecution of criminal acts committed against young children who are frequently
unable to identify a specific date on which a particular offense was committed.‟” State v.
Knowles, 470 S.W.3d 416, 423-24 (Tenn. 2015) (quoting State v. Rickman, 876 S.W.2d
824, 828 (Tenn. 1994)).

        Historically, the State “[wa]s not required to identify the particular date of the
chosen offense” in cases of ongoing sexual abuse, and “a particular offense c[ould] often
be identified without a date.” State v. Shelton, 851 S.W.2d 134, 137 (Tenn. 1993). If
“the evidence indicate[d] various types of abuse, the prosecution [could] identify a
particular type of abuse and elect that offense,” or the prosecutor could ask the child
victim “to describe unique surroundings or circumstances that help to identify an
incident,” which could include “identify[ing] an assault with reference to a meaningful
event in [the child‟s] life, such as the beginning of school, a birthday, or a relative‟s
visit.” Id. at 138. Until recently, the Tennessee Supreme Court “concluded that „[a]ny
description that will identify the prosecuted offense for the jury is sufficient.‟” Knowles,
470 S.W.3d at 424 (quoting Shelton, 851 S.W.2d at 138).

       Since the filing of the briefs in this case but prior to oral argument, the Tennessee
Supreme Court issued its decision in State v. Qualls, 428 S.W.3d 1 (Tenn. Jan. 28, 2016),
a case with an issue very similar to the issue presented herein. In Qualls, the defendant
was indicted for thirty-seven counts of sexual battery by an authority figure and one
count of incest for abuse of his daughters and an adopted daughter. Id. at 9. At the first
                                            -5-
trial, the defendant was convicted of all the charges. He appealed, arguing that the State
failed to properly elect the facts used to form the basis for each of the offenses. The State
conceded error; this Court reversed and remanded the case for a new trial. See State v.
Jimmy Dale Qualls, No. W2010-02523-CCA-R3-CD, 2012 WL 939001, at *3 (Tenn.
Crim. App. Mar. 14, 2012), no perm. app. filed. On retrial after remand, Defendant was
again convicted of all the counts as alleged in the indictment. On appeal from the retrial,
Defendant again argued that the State filed to properly elect conduct for which it sought
convictions. See State v. Jimmy Dale Qualls, No. W2013-01440-CCA-R3-CD, 2014 WL
4072098, at *5 (Tenn. Crim. App. Aug. 18, 2014), perm. app. granted (Tenn. Jan. 15,
2015). This Court again determined that the election was inadequate and remanded for a
new trial. The State appealed.

       The supreme court granted permission to appeal to determine if the election was
proper. Specifically, the court sought to answer the following question:

       whether the election of offenses doctrine, articulated in Burlison v. State,
       501 S.W.2d 801 (Tenn. 1973), and reaffirmed in State v. Shelton, 851
       S.W.2d 134 (Tenn. 1993), requires the prosecution to identify a single
       incident of sexual battery in cases, such as this one, where the child victim
       testifies to repeated incidents of sexual contact occurring over a substantial
       period of time but does not furnish any specific details, dates, or
       distinguishing characteristics as to individual incidents of sexual battery.

Qualls, at 4. The court noted that there were not any cases in Tennessee dealing with so-
called “generic evidence,” where the “victims described with clarity the type of sexual
battery perpetrated on them but failed to identify specifically when each alleged act
occurred.” Id. at 13. The court reviewed the procedures and policies used in other
jurisdictions in generic evidence cases and concluded:

       [I]n generic evidence cases[,] the prosecution need not elect a specific
       criminal act or incident as the basis of a conviction for each charge.
       Instead, the election doctrine may be satisfied in generic evidence cases by
       the trial court providing a modified unanimity instruction that allows a
       conviction only if the jury unanimously agrees the defendant committed all
       the acts described by the victim. However, consistent with prior decisions
       involving the election of offenses doctrine, the trial court must determine at
       the conclusion of the State‟s case-in-chief whether the proof is sufficiently
       specific as to apply the strict election requirement or whether the election
       requirement may be satisfied by giving the modified unanimity instruction.
       See Knowles, 470 S.W.3d at 423 (stating that election should occur at the
       close of the prosecution‟s case-in-chief). We invite the Tennessee Pattern
       Jury Instruction Committee to promulgate a pattern jury instruction for use
                                            -6-
       in child sexual abuse cases involving generic evidence. See State v. White,
       362 S.W.3d 559, 581 (Tenn. 2012) (inviting the Committee to promulgate a
       pattern jury instruction for use in trials involving kidnapping and an
       accompanying felony charge).           Until the Committee develops an
       appropriate instruction, trial courts should use the following instruction in
       cases involving only generic evidence:

                     The State has offered proof in its case-in-chief of more
              than one criminal act allegedly committed [by the defendant]
              [by one for whom the State alleges the defendant is criminally
              responsible]. To ensure a unanimous jury verdict [on the
              charge] [on each count of the indictment], the State must
              prove beyond a reasonable doubt the commission of all of the
              acts described by the alleged victim [as occurring within the
              time period charged] [as occurring within the time period
              charged in each Count of the indictment].

                    In order to find the defendant guilty, you must
              unanimously agree that the State has proven beyond a
              reasonable doubt the commission of all of the acts described
              by the alleged victim [as occurring within the time period
              charged] [as occurring within the time period charged in each
              Count of the indictment].

Qualls, at 18-19.

       The court went on to review the issue in Qualls for non-structural constitutional
harmless error because the trial court had not given the jury a modified unanimity
instruction. In that case, the two victims described unlawful sexual contact on a regular
basis over an extended period of time as alleged in the indictment. The victims testified
that the abuse occurred at least once a month, with one of the victims testifying that the
abuse happened on a weekly basis. The victims each testified that they saw the abuse
perpetrated on the other victim. The State, during election of offenses, narrowed the time
frame of each individual count down to a one month period of time. The defendant‟s
defense was a blanket denial. Moreover, the trial court instructed the jury that the verdict
had to be unanimous. The court concluded “the erroneous lack of a modified unanimity
instruction did not contribute to the verdict obtained and that the jury‟s verdict would
have been the same had the modified unanimity instruction been given.” Id. at 21.

       With the decision in Qualls in mind, we turn to the case herein. The presentment
alleged that the acts took place between February 1, 2007, and October 19, 2010. At the
conclusion of the State‟s proof, Defendant moved to dismiss Counts Two, alleging rape
                                            -7-
of a child by fellatio; Four, alleging rape of a child with an “object”; and Six, alleging
that Defendant caused the step-brother to rape the victim. The State conceded the failure
to prove the elements in Counts Two and Four. The trial court granted the motion for
judgment of acquittal with respect to Counts Two and Four and instructed the jury on the
lesser included offense of attempted rape of a child in Count Six. In other words, the jury
was left with Counts One, Three, Five, Six, and Seven. Defendant is complaining about
the election for Count One, penile/vaginal penetration and Count Three, digital/vaginal
penetration. After the partial grant of the motion for judgment of acquittal, the trial court
determined that the facts set forth “discreet types of penetration, as opposed to discreet
occasions” and that there was not “any election that needs to be done.” The State
responded that any election that was necessary would be “based on what the allegations
are . . . in the actual presentment, as in the description of the penetration . . . .” The State
also noted that the victim described all of the acts as occurring in the bedroom. In
response to the discussion, the trial court crafted a proposed jury instruction as follows:

       So the Court could say, the State has offered proof in this case of more than
       one alleged[] act committed by the [D]efendant in Counts One and Three.

              To ensure a unanimous verdict, the State has relied to elect which
       alleged act and so forth. The State has elected to submit for your
       consideration that the acts occurring in Count One and Three were the ones
       occurring in the bedroom.

Counsel for Defendant agreed and asked the trial court to add “within the time alleged in
the indictment.” It is not clear from the record whether counsel for Defendant made a
valid objection to the proposed charge or form of the election as discussed between the
parties.

       In the motion for new trial, Defendant argued that the trial court “erred by failing
to make the State properly elect the particular offenses submitted to the jury” with respect
to Counts One and Three. This Court has repeatedly reminded defendants about the
consequences of the failure to object to an issue at trial and the effect on our review of
such issues on appeal. See Tenn. R. App. P 36(a) (“Nothing in this rule shall be
construed as requiring relief be granted to a party responsible for an error or who failed to
take whatever action was reasonably available to prevent or nullify the harmful effect of
an error.”). Defendant, in a reply brief, insists that this issue is properly preserved by
virtue of the fact that counsel raised it in the motion for new trial. In the alternative,
Defendant argues that he is entitled to plain error relief. The State insists that Defendant
could only get relief via plain error and that he has not established all of the factors
necessary for plain error review.


                                              -8-
        We agree with the State that the issue is waived unless Defendant can establish he
is entitled to plain error review. See Tenn. R. App. P. 36(a). To determine whether a trial
error rises to the level of “plain error,” the following five factors must be present:

       (a) the record must clearly establish what occurred in the trial court; (b) a
       clear and unequivocal rule of law must have been breached; (c) a
       substantial right of the accused must have been adversely affected; (d) the
       accused [must not have waived] the issue for tactical reasons; and (e)
       consideration of the error [must be] “necessary to do substantial justice.”

State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d
626, 641-42 (Tenn. Crim. App. 1994)). All five factors must be established by the record
before this Court will recognize the existence of plain error, and complete consideration
of all the factors is not necessary when it is clear from the record that at least one of the
factors cannot be established. Id. at 283.

        Both Count One, alleging penile/vaginal penetration, and Count Three, alleging
penile/digital penetration, were described by the victim as happening in the bedroom of
Defendant on many occasions during the period of time described in the indictment. The
testimony of the victim provided what Qualls described as generic evidence: she
“described with clarity the type of sexual battery perpetrated on [her] but failed to
identify specifically when each alleged act occurred. Instead, the victim[] here described
a pattern of abuse that occurred over an extended period of time.” Qualls, at 13. The
jury in this case received the following instruction:

              The State has offered proof in its case in chief of more than one act
       allegedly committed by the defendant, which the State alleges constitutes
       an element of the offenses as charged in Counts One, Three and Eight of
       the Indictment.

              To ensure a unanimous verdict, the law requires the State to elect
       which alleged act testified to the State is - - that the State is relying upon for
       your consideration in deciding whether or not the defendant is guilty of this
       offense or any lesser offense.

              The fact that the Court has required the State to elect does not mean
       that the Court has found that the State has carried its burden of proving
       those allegations beyond a reasonable doubt.             That is for your
       determination.




                                              -9-
              In this case, the case - - the State has elected to submit for your
       consideration that the alleged acts in Counts One, Three, and Eight
       occurred in the bedroom within the timeframe of this Indictment.

              Members of the jury are to consider only the acts alleged in deciding
       whether or not the defendant has been proven guilty beyond a reasonable
       doubt as charged in Counts One, Three, and Eight.

The instruction given in this case by the trial court tracks the language of the proposed
instruction in Qualls to be given in generic evidence cases. Defendant has failed to show
that a clear and unequivocal rule of law was breached. Moreover, each count involved a
different type of penetration, indicating “various types of abuse, [so] the prosecution may
identify a particular type of abuse and elect that offense.” Shelton, 851 S.W.2d at 138
(citing State v. Fears, 659 S.W.2d 370, 374 (Tenn.Crim.App.1983)). Finally, Defendant
has not shown that he did not waive the issue for tactical reasons. Therefore, he is not
entitled to plain error review.

                               II. Sufficiency of the Evidence

       Defendant couches his next issue as a challenge to the sufficiency of the evidence
for his convictions for rape of a child in Counts One and Three and convictions for
attempted rape of a child in Counts Five and Six. In reality, Defendant‟s argument
merely reiterates his argument about the failure of the State to make a proper election of
offenses. The State argues that the evidence was sufficient to support the convictions.
Because we have already reviewed Defendant‟s issue with regard to the proper election
of offenses, we will review the sufficiency of the evidence.

       When a defendant challenges the sufficiency of the evidence, this Court is obliged
to review that claim according to certain well-settled principles. The relevant question
the reviewing court must answer is whether any rational trier of fact could have found the
accused guilty of every element of the offense beyond a reasonable doubt. See Tenn. R.
App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319 (1979). The jury‟s verdict replaces
the presumption of innocence with one of guilt; therefore, the burden is shifted onto the
defendant to show that the evidence introduced at trial was insufficient to support such a
verdict. State v. Reid, 91 S.W.3d 247, 277 (Tenn. 2002). The prosecution is entitled to
the “strongest legitimate view of the evidence and to all reasonable and legitimate
inferences that may be drawn therefrom.” State v. Goodwin, 143 S.W.3d 771, 775 (Tenn.
2004) (quoting State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). It is not the role of this
Court to reweigh or reevaluate the evidence, nor to substitute our own inferences for
those drawn from the evidence by the trier of fact. Reid, 91 S.W.3d at 277. Questions
concerning the “credibility of the witnesses, the weight to be given their testimony, and
the reconciliation of conflicts in the proof are matters entrusted to the jury as the trier of
                                            - 10 -
fact.” State v. Wagner, 382 S.W.3d 289, 297 (Tenn. 2012) (quoting State v. Campbell,
245 S.W.3d 331, 335 (Tenn. 2008)). “A guilty verdict by the jury, approved by the trial
court, accredits the testimony of the witnesses for the State and resolves all conflicts in
favor of the prosecution‟s theory.” Reid, 91 S.W.3d at 277 (quoting State v. Bland, 958
S.W.2d 651, 659 (Tenn. 1997)). The standard of review is the same whether the
conviction is based upon direct evidence, circumstantial evidence, or a combination of
the two. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011); State v. Hanson, 279
S.W.3d 265, 275 (Tenn. 2009).

         Defendant was charged with rape of a child in Counts One and Three and
attempted rape of a child in Count Five. The trial court reduced the charge in Count Six
alleging Defendant caused the step-brother to engage in penile/vaginal penetration with
the victim from rape of a child to attempted rape of a child prior to submitting the case to
the jury. “Rape of a child is the unlawful sexual penetration of a victim by the defendant
. . . if the victim is more than three (3) years of age but less than thirteen (13) years of
age.” T.C.A. § 39-13-522(a). “Sexual penetration” is defined as “sexual intercourse,
cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part
of a person‟s body or of any object into the genital or anal openings of the victim‟s the
defendant‟s, or any other person‟s body, but emission of semen is not required.” T.C.A.
§ 39-13-501(7). A person commits criminal attempt when he acts with the intent to
complete a course of action and the conduct constitutes a substantial step toward the
commission of the offense. T.C.A. § 39-12-101(a)(3).

        At trial, the victim testified that the abuse started when she was four years of age.
With respect to Counts One and Three, the victim described Defendant‟s penetrating her
vagina with “his penis” and “his fingers.” The victim testified that it went on “for like, a
long time” and that she was raped “almost every day.” She was able to give a vivid
description of Defendant‟s ejaculations. With respect to Count Five, the victim described
one particular occasion of attempted anal penetration where Defendant was sitting on the
victim while she was lying on her stomach and Defendant tried to put his penis in her
“butt.” Defendant was unsuccessful because the victim was “moving.” The victim
testified that the events occurred in Defendant‟s bedroom. Additionally, Defendant‟s
sperm was found on a pair of the victim‟s underwear. With respect to Count Six, both
the victim and the step-brother testified that Defendant tried to get the step-brother to “do
it with” the victim. Both the victim and the step-brother independently corroborated this
event and described Defendant as “kind of giving instructions” by telling the victim to
give the step-brother oral sex. Neither the victim nor the step-brother had on clothes at
the time. Defendant wanted them to “do it” but the step-brother “freaked out” when he
could not “get it up.” In our view, the evidence was sufficient to support two convictions
for rape of a child and two convictions for attempted rape of a child.

                                     III. Due Process
                                            - 11 -
       Defendant contends that his convictions for rape of a child in Counts One and
Three violate his right to due process because they stemmed from a single continuous
episode and involved a single criminal intent. To support his argument, defendant cites
State v. Barney, 986 S.W.2d 545 (Tenn. 1999). The State argues that there is doubt about
whether the test announced in Barney is still valid and that there is “nothing in the record
to suggest that the [D]efendant was convicted of two counts of rape of a child that
occurred as a single continuous offense.”

       In our view, the evidence in this case does not present a factual scenario that
would be appropriate for review via the test announced in Barney.3 In Count One,
Defendant was convicted of rape of a child by inserting his penis into the victim‟s vagina.
In Count Three, Defendant was convicted of rape of a child by inserting his fingers inside
the victim‟s vagina. The victim testified that the abuse occurred over the course of
several years. There was nothing in the record to suggest that Defendant performed both
of these acts during a single criminal episode. Defendant is not entitled to relief on this
issue.

                                            IV. Sentencing

        Defendant insists that the trial court improperly ordered consecutive sentencing.
Specifically, Defendant complains about the trial court‟s reliance on the “extensive
damage” to the victim‟s mental and emotional health without proof of such and the trial
court‟s failure to articulate the relevant factors for consecutive sentencing. The State
counters that the trial court‟s finding that Defendant was convicted of two or more
statutory offenses involving the sexual abuse of a minor that arose from the relationship
between Defendant and the victim and the “sustained period of sexual abuse” supported
the trial court‟s order of consecutive sentencing under Tennessee Code Annotated section
40-35-115(b). Moreover, the State points to the victim‟s own testimony about her four
years in therapy to support the degradation of the victim‟s mental and emotional health as
a result of Defendant‟s abuse.

       When a defendant challenges the length or manner of service of a within-range
sentence, this Court reviews the trial court‟s sentencing decision under an abuse of
discretion standard with a presumption of reasonableness. State v. Caudle, 388 S.W.3d
273, 278-79 (Tenn. 2012); State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). This
presumption applies to “within-range sentencing decisions that reflect a proper

        3
          Although Barney has not yet been expressly overruled, this Court is uncertain as to its continued
validity following State v. White, 362 S.W.3d 559, 578 (Tenn. 2012), and State v. Watkins, 362 S.W.3d.
551, 552 n.34 (Tenn. 2012). See also State v. Christopher Scottie Itzol-Deleon, No. M2014-02380-CCA-
R3-CD, 2016 WL 1192806, at *35 (Tenn. Crim. App. Mar. 28, 2016) (Easter, J., dissenting).

                                                  - 12 -
application of the purposes and principles of the Sentencing Act.” Bise, 380 S.W.3d at
707. A trial court abuses its discretion in sentencing when it “applie[s] an incorrect legal
standard, or reache[s] a decision which is against logic or reasoning that cause[s] an
injustice to the party complaining.” State v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997)
(citing Ballard v. Herzke, 924 S.W.2d 652, 661 (Tenn. 1996)). This deferential standard
does not permit an appellate court to substitute its judgment for that of the trial court.
Myint v. Allstate Ins. Co., 970 S.W.2d 920, 927 (Tenn. 1998). The defendant bears the
burden of proving that the sentence is improper. T.C.A. § 40-35-101, Sentencing
Comm‟n Cmts.

        In reaching its decision, the trial court must consider the following factors: (1) the
evidence, if any, received at the trial and the sentencing hearing; (2) the presentence
report; (3) the principles of sentencing and arguments as to sentencing alternatives; (4)
the nature and characteristics of the criminal conduct involved; (5) evidence and
information offered by the parties on enhancement and mitigating factors; (6) any
statistical information provided by the administrative office of the courts as to sentencing
practices for similar offenses in Tennessee; (7) any statement by the appellant in his own
behalf; and (8) the potential for rehabilitation or treatment. See T.C.A. § 40-35-210(b);
see also Bise, 380 S.W.3d at 697-98. Additionally, the sentence imposed “should be no
greater than that deserved for the offense committed” and also “should be the least severe
measure necessary to achieve the purposes for which the sentence is imposed.” T.C.A. §
40-35-103(2), (4).

        Our supreme court has held that “the abuse of discretion standard, accompanied by
a presumption of reasonableness, applies to consecutive sentencing determinations” “if
[the trial court] has provided reasons on the record establishing at least one of the seven
grounds listed in Tennessee Code Annotated section 40-35-115(b)[.]” State v. Pollard,
432 S.W.3d 851, 859-62 (Tenn. 2013). Thus the imposition of consecutive sentencing is
subject to the general sentencing principles that the overall sentence imposed “should be
no greater than that deserved for the offense committed” and that it “should be the least
severe measure necessary to achieve the purposes for which the sentence is imposed[.]”
T.C.A. § 40-35-103(2), (4). Further, “[s]o long as a trial court properly articulates
reasons for ordering consecutive sentences, thereby providing a basis for meaningful
appellate review, the sentences will be presumed reasonable and, absent an abuse of
discretion, upheld on appeal.” Pollard, 432 S.W.3d at 862 (citing Tenn. R. Crim. P.
32(c)(1) (“The order [for consecutive sentences] shall specify the reasons for this
decision and is reviewable on appeal.”)); see also Bise, 380 S.W.3d at 705.

      In fashioning Defendant‟s sentence, the trial court determined that two
enhancement factors applied: (1) that Defendant had a criminal history of two worthless
check convictions in addition to those necessary to establish his range and (2) that
Defendant abused a position of private trust as the biological father of the victim. With
                                            - 13 -
regard to consecutive sentencing, the trial court determined that Defendant was
“convicted of two or more statutory crimes of sexual abuse that were sustained over a
period of time.” See T.C.A. § 40-35-115(b)(5). The trial court noted “[t]he extensive
damage that this caused in the child‟s mental and emotional health, as well as to the
family in this case,” and found that “the interest of society needs to be protected from the
[D]efendant in this case who has abused a child of such [age] and that the interest of
society requires consecutive sentencing.”

        Because the trial court provided reasons on the record establishing at least one of
the statutory grounds for consecutive sentencing, we afford the trial court‟s decision a
presumption of reasonableness. The victim testified that she had suffered both
emotionally and mentally due to the abuse she suffered at the hands of Defendant that
occurred almost every day for several years. After being removed from the home, the
victim reported that she had been under the care of ten different therapists and lived in a
total of nine different facilities, group homes, and/or foster homes in the four years since
she reported the abuse. The victim admitted various behavioral difficulties while in
group care, including kicking a pregnant foster mother and slamming someone‟s hand in
a door out of anger. The victim also admitted that she had experienced a wide variety of
mental and personality problems since early childhood, including visual and auditory
hallucinations. The victim was Defendant‟s biological daughter. Furthermore, the record
shows that the trial court followed the principles and purposes of the Sentencing Act, and
the record supports the trial court‟s findings. We conclude that the trial court did not
abuse its discretion by sentencing Defendant to serve twenty-five years for each rape of a
child conviction, ten years for each attempted rape of a child conviction, ten years for the
aggravated sexual battery conviction, and five years for the incest conviction. The trial
court ordered the rape of a child sentences to be served concurrently with each other but
consecutively to the attempted rape of a child sentence. The remaining sentences were
ordered to be served concurrently, for a total effective sentence of thirty-five years. The
trial court did not abuse its discretion. Accordingly, Defendant is not entitled to relief.

                                        Conclusion

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




                                                    _________________________________
                                                    TIMOTHY L. EASTER, JUDGE




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