        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs December 7, 2011

              STATE OF TENNESSEE v. ANTHONY S. HARDING

                 Appeal from the Criminal Court for Sumner County
                       No. 393-2009 Dee David Gay, Judge


                No. M2011-00597-CCA-R3-CD - Filed January 25, 2013


The Defendant, Anthony S. Harding, was convicted by a Sumner County jury of six counts
of aggravated statutory rape and one count of attempted aggravated statutory rape. The trial
court later dismissed the attempt conviction. Following a sentencing hearing, the trial court
ordered the Defendant to serve four years on each count of aggravated statutory rape, with
all of these counts to run consecutively, resulting in an effective twenty-four-year sentence.
On appeal, the Defendant raises the following issues for our review: (1) whether the
indictment was insufficient for failing to provide specific dates for the offenses; (2) whether
the evidence was sufficient to sustain the convictions; (3) whether the trial court erred by
excluding testimony from an alibi witness; and (4) whether the trial court imposed an
excessive sentence. Following our review, the Defendant’s convictions and sentences for
aggravated statutory rape are affirmed. We remand solely for the entry of corrected judgment
forms to reflect dismissal of Count Seven, the attempt conviction.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed;
                                 Case Remanded

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which T HOMAS T. W OODALL
and R OBERT W. W EDEMEYER, JJ., joined.

Robert Thomas Vaughn (at trial) and Jon J. Tucci (on appeal), Nashville, Tennessee, for the
appellant, Anthony S. Harding.

Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant
Attorney General; Lawrence Ray Whitley, District Attorney General; and Sallie Wade
Brown, Assistant District Attorney General, for the appellee, State of Tennessee.

                                     OPINION
                               FACTUAL BACKGROUND
        On May 7, 2009, a Sumner County grand jury returned an indictment against the
twenty-seven-year-old Defendant, charging him with eight counts of aggravated statutory
rape of the sixteen-year-old female victim, F.P.,1 Class D felonies. See Tenn. Code Ann. §
39-13-506(c), (d)(3). All of the charges stemmed from incidents occurring sometime in
January or February 2009 and involved either intercourse or oral sex. The indictment alleged
that “between on or about January 10, 2009 and on or about February 18, 2009,” the
Defendant engaged in intercourse with the victim (Count One) and had the victim perform
fellatio on him (Count Five). “[O]n or about late January 2009,” the Defendant was again
alleged to have engaged in fellatio with the victim (Count Two). In Counts Three and Four,
it was alleged that the Defendant had intercourse with the victim “on or about January 2009.”
Count Six charged performance of fellatio by the victim on the Defendant “on or about early
February 2009.” Specific dates of intercourse were provided for in Counts Seven and Eight,
“on or about February 15, 2009,” and “on or about February 18, 2009,” respectively.

        At trial, the victim provided that her birthdate was August 25, 1992, making her
sixteen years old when the alleged offenses were committed. She stated that she lived in a
two-bedroom apartment with her mother in Hendersonville in late 2008 and early 2009. At
that time, she was freshman in high school. While living in the neighborhood, she befriended
two other teenage girls, S.H. and C.L. The victim first met the Defendant when S.H.
introduced them; the Defendant was S.H.’s uncle and also lived in the neighborhood. When
S.H. moved to Gatlinburg, the victim and the Defendant exchanged cell phone numbers “so
[the victim] could supposedly stay in contact with [S.H.]” Thereafter, the Defendant and the
victim talked “quite a bit,” mainly through text messaging. According to the victim, she
began to trust the Defendant and often confided in him.

        During this timeframe, the Defendant got married and moved to Gallatin, away from
the victim’s neighborhood. The victim testified that she did not go to the Defendant’s house
for the wedding or reception. They continued to frequently exchange text messages; he
would instruct her to erase them. The victim stated that the Defendant was listed in her
phone as “No name.”

        According to the victim, in late 2008, the relationship began to change, becoming
sexual in nature. The Defendant told the victim that they would both get in trouble if she told
anyone: “He said that he would go to jail and [she] would go to juvy [sic].” The victim
testified that she went to Florida for New Year’s Eve in 2008 and returned to Hendersonville
on January 4, 2009.



1
  It is the policy of this court to refer to victims of sexual abuse by their initials. Moreover, we will refer
to other individuals in this opinion by their initials when necessary to protect the identity of the victim.

                                                     -2-
        Sometime after the Defendant moved to Gallatin, the Defendant asked her to meet him
“[b]y the yacht club . . . or by the creek in the woods.” According to the victim, this area was
basically a boat dock, which was about five minutes walking distance from her apartment.
The victim testified that the Defendant would park his vehicle on the other side of a green
dumpster. She described that “normally” she would meet the Defendant while “he would be
walking down the street” and that they then “would proceed from the street over to the woods
by the creek.” They often met at this location at night. She testified that the encounters were
quick: “Let’s get to it and leave.”

       She stated that when they met at this location, they “would end up having sex.” She
described that she would be standing up holding on to a tree and that the Defendant would
penetrate her vaginally from behind. She could not recall whether the Defendant ever
ejaculated. The victim testified that she had never had sex before meeting the Defendant.
According to the victim, the Defendant did not use a condom, and she worried about
becoming pregnant. The victim testified that sometimes they engaged in oral sex, which she
described as “[her] putting [her] mouth on his penis.”

        The victim testified that the Defendant told her that “[they] were not having sex.”
According to victim, she asked the Defendant “if he had put it all the way in[,] and he
proceeded to say that . . . ‘it’s ten inches, sweetie, if I put it in you would feel it.’” When
asked approximately how many times she had intercourse with the Defendant, the victim
estimated “probably about [twenty].” She further stated that they engaged in oral sex on at
least five or six occasions. When asked if the Defendant ever threatened her, the victim
replied, “He told me that I had to do what he said or he would get mad and that wouldn’t be
good. If I moved he would come and find me.” She did not feel like she could tell anyone
about their encounters.

       According to the victim, all of the incidents occurred at the boat dock except one that
occurred during the daytime at the Defendant’s house in Gallatin. The victim stated that she
had never previously been to the Defendant’s house. According to the victim, the Defendant
told her that he had a hot tub at his house, so the Defendant picked her up to take her to his
house to use it. She described that, when they arrived, the Defendant said his wife’s sister
was home. They parked in the garage, and the Defendant went into the house first. He then
returned and told her that she could go inside. She never saw anyone else while inside the
house.

        According to the victim, when they entered the house, they went straight to the
bedroom, and he closed the door. The victim stated that she then changed into her bathing
suit, and they sat down on the bed. The victim then performed oral sex on the Defendant;



                                              -3-
according to the victim, this was the first time they had engaged in oral sex. She further
testified that she was never able to get into the hot tub.

        The victim then testified as to her recollection of February 18, 2009, “when everything
kind of broke loose.” She went to school that day. That afternoon she received a call from
C.L. while she was with the Defendant at the boat dock. They were having intercourse, and
C.L. overheard the Defendant’s voice on the phone. Based on the conversation with C.L.,
the victim decided to go home. When the victim arrived at her house, her mother was home,
and her mother took her cell phone from her.

       Initially, the victim did not tell her mother what was going on with the Defendant
because she was scared. The victim told her mother and her aunt that the voice in the
background on the phone call with C.L. “was a friend from school.” She confirmed that she
sent the Defendant a text message stating “that [she] thought they bought [her] story.”

       On February 19, 2009, she went to school and had band practice that afternoon. Her
mother picked her up from practice and took her to the police station. She was “scared to
death.” Once they arrived, she met with Detective Neal Harris of the Hendersonville Police
Department. She told Det. Harris “everything that had been going on between [her] and [the
Defendant.” She was relieved to finally tell someone because she wanted the relationship
to stop.

       The victim then reviewed the details of the statement she gave to Det. Harris. She
confirmed that the first time she had intercourse with the Defendant was shortly after her
January 4, 2009 return from Florida. She told Det. Harris “a few days” after January 11, she
again had sex with the Defendant for a second time. “[A] few days” after the second time,
they had sex for a third time. All of these incidents happened at the boat dock.

       Again, the victim testified that the first incident of oral sex occurred at the
Defendant’s house. She also stated that, although she could not recall an exact day,
sometimes they would only have oral sex at the boat dock. According to the victim, oral sex
happened on “more than one occasion.” When asked the last time she performed oral sex on
the Defendant, the victim replied that it was “sometime close to the time that [she] had talked
with Detective Harris.” She thought it was possibly the day before.

       She confirmed that she met with the Defendant during the late evening hours of
February 15 at the boat dock. She reaffirmed that she had intercourse with the Defendant at
the boat dock on February 18, which was the time C.L. called and the day her mother became
suspicious.



                                              -4-
       The victim testified that Det. Harris directed her to text the Defendant in an effort to
try and get him to respond. The Defendant did not respond. The victim and her mother
returned to the police station on February 20. Again, under the direction of Det. Harris, the
victim initiated contact with the Defendant. The Defendant called the victim, and a tape
recording of that call was played for the jury.

      In the last text messages between the victim and the Defendant, the Defendant spoke
of God and religion. She believed that “[t]owards the end” of the investigation, the
Defendant was becoming suspicious.

         The victim admitted that the text messages she sent to the Defendant about physical
abuse by her mother were untrue. She stated that she made up the abuse because she “wanted
it to stop. Sympathy that maybe that day it wouldn’t happen.” According to the victim, she
had received therapy after these events and continued to do so. She felt like it was “helping.”

       On cross-examination, the victim was first asked about the details of the February 15
meeting. The victim testified that she met with the Defendant after 10:00 p.m. that evening,
but she could not be more specific with the time. Defense counsel then referred to the
following texts from the early morning hours of February 16, 2009: At 12:19 a.m., the victim
texted the Defendant, “Meet you.” Five or six minutes later the Defendant responded
“Tonight.” She replied “Ya.” The Defendant then asked “When,” and she said at 12:29 a.m.,
“N Ten.” At 12:41 a.m., the victim texted “Hello.” The following morning at 7:31 a.m. the
Defendant said “Sorry fell asleep.”

        Defense counsel also asked the victim about the alleged oral sex at the Defendant’s
house in January 2009. She was asked to describe the house. The victim relayed that she
entered the house through the garage door and, once inside, “you go through the kitchen” and
it was a “straight shot to the bedroom.” According to the victim, the bed in the Defendant’s
room was on the left-hand side of the room. She went on to describe additional details about
the room, including a television on “a little shelf, bookshelf, some type of support for it to
sit there, on the right-hand side, kind of close to the entrance of the bedroom.” She also
remembered that the garage door was already open when they arrived at the house.

       Regarding the incident on February 18, she believed that the sun “was just starting to
go down” when she left her house to meet the Defendant at the boat dock. When asked if
there was anything distinctive about the Defendant’s penis, the victim replied that it was
“[l]arge, very round, obviously, and long.” She did not recall any other unique
characteristics.




                                              -5-
       She also confirmed that C.L. had seen a text message from the Defendant asking to
meet and that C.L. later called her and heard the Defendant’s voice, causing C.L. to become
suspicious. C.L. told her mother, who told the victim’s mother.

       She confirmed that, after her interview at the police station, she took Det. Harris to
her residence to collect clothing. Detective Harris asked her what she was wearing on the
evening of February 18, when they had intercourse. Her pants and underwear were collected
for DNA testing. She was later informed that no DNA was found on her clothing. Also,
sometime thereafter, the victim’s mother took her to the doctor for an examination.

        On redirect, the victim stated that she met with the Defendant almost “every other
night pretty close together.” When asked about the results of her examination at the doctor’s
office, the victim confirmed that she had been diagnosed with a sexually transmitted disease.

       The victim’s mother also testified, confirming many of the details provided by the
victim. The victim’s mother worked as a medical assistant at Vanderbilt Medical Center.
The victim’s mother did have a boyfriend, but he was gone “on the road” most of the time.
According to the victim’s mother, the victim did not see her father much during this period
of time. The victim’s mother stated that, after they moved to the apartment complex in
Hendersonville, the victim began to have a change in her personality, “becoming more
withdrawn than usual.”

       On February 18, 2009, the victim’s mother received a phone call from C.L.’s mother,
who asked the victim’s mother to come to her house because she needed to talk with her.
After the television show American Idol was over, the victim’s mother went to C.L.’s
mother’s house, and both C.L. and her mother were there. According to the victim’s mother,
C.L. was the victim’s “very best friend.” Based on this conversation with C.L. and her
mother, the victim’s mother returned home and confiscated the victim’s cell phone.

        The victim’s mother looked through the victim’s phone for information about who the
victim had been texting. She was suspicious about the entry “No name.” Originally, the
victim told her mother that “No name” was a friend from school. The victim denied having
a relationship with anyone other than her boyfriend. The victim’s mother called her sister
to come over and help her with the victim. Eventually, the victim admitted that “No name”
was the Defendant.

       When the victim went to school on February 19, 2009, the victim’s mother kept her
cell phone to see if the Defendant would try to contact the victim again. The Defendant did
text message the victim, and the victim’s mother responded to the messages as though she
were the victim. Some of the messages were alarming to the victim’s mother, “[t]ext like

                                             -6-
asking questions about undressing in front of band members.” After receiving these
messages, the victim’s mother went to the Hendersonville Police Department and showed the
text messages to authorities. Thereafter, the victim’s mother picked the victim up from
school and brought the victim to the police station so she could be interviewed. She
confirmed that Det. Harris interviewed the victim, and she stated that she was not in the room
during the interview. While she sat in the lobby of the police department, the victim’s cell
phone continued receiving text messages from the Defendant.

      On cross-examination, the victim’s mother estimated that C.L.’s mother called at
around 8:50 p.m. on February 18. This estimation was based upon what time American Idol
came on that evening. She went to speak with C.L.’s mother after the show was over.

       Detective Harris also testified. At approximately 5:30 p.m. on February 19, 2009, Det.
Harris went to the police station to meet with the victim and her mother. Thereafter, Det.
Harris interviewed the victim, and she disclosed the details of her sexual relationship with
the Defendant. Detective Harris determined that the Defendant’s birthday was June 16,
1981, making the Defendant ten years and ten months older than the victim.

       After Det. Harris completed the interview with the victim, he met again with the
victim’s mother, and the three of them proceeded to Det. Harris’s office. Detective Harris
wanted to set up a phone call between the Defendant and the victim, but he was unsuccessful
on February 19. Detective Harris stated that the victim and the Defendant communicated
mainly through text messaging and there were “[v]ery few calls.”

       Detective Harris then went with the victim and her mother back to their house to
collect the victim’s clothing. He took the clothes the victim “believed she may be wearing
on the 18th when the last reported incident occurred.” The victim was not one-hundred
percent sure that those were the correct items of clothing. Detective Harris confirmed that,
following testing by the Tennessee Bureau of Investigation (“TBI”), no semen was found on
the victim’s clothing.

       Detective Harris also escorted the victim from her home to the boat dock, “the
location she had described.” He photographed that location, and those photographs were
entered as exhibits. According to Det. Harris, the walk took approximately five minutes.

        The following day, February 20, the victim returned with her mother to the police
station. Detective Harris testified that, overnight, additional text messages had come in from
the Defendant. Detective Harris again tried to set up a phone call between the Defendant and
the victim. This time, the call was successful; the Defendant phoned the victim at her behest.
A recording of the phone conversation was entered into evidence.

                                             -7-
        In the phone call, the victim told the Defendant, “My mom is going crazy, we cannot
have sex anymore.” The Defendant said “okay,” followed by “we didn’t have sex.” The
victim asked, “Then what do you call it when you put your d--k in my mouth.” The
Defendant responded “that’s not sex. Okay. I promise, we won’t do it anymore. We can just
be cool friends. Okay?” Later in the call, the Defendant asked, “You didn’t tell anybody did
you?” The victim said “no,” and the Defendant replied, “okay, cool.” The Defendant then
started to talk about how he wants the victim to find God and confirmed with the victim that
they can still be friends.

        Detective Harris then obtained warrants for the Defendant’s arrest. He was able to
locate the Defendant at his residence. According to Det. Harris, upon his arrival, he observed
that the residence and a vehicle parked at the house were consistent with the victim’s
description. The Defendant was taken to the police station for questioning. The Defendant
was given his Miranda warnings and confirmed that his birthdate was June 16, 1981. The
Defendant also verified his cell phone number. When Det. Harris “asked [the Defendant]
a question relative to the case,” the Defendant stated that he did not want to speak with Det.
Harris.

        Thereafter, Det. Harris issued a subpoena to Verizon Wireless for the Defendant’s
phone records from December 1, 2008, through February 24, 2009. Detective Harris also
obtained the victim’s phone records from Sprint. These records were entered as exhibits at
trial. According to Det. Harris, there were approximately 4,011 text messages between the
victim and the Defendant during this timeframe.

      During many of the text messages, the Defendant and the victim were arranging to
meet. Detective Harris read excerpts from the records of February 15th through the 20th:

       The Defendant: “Yeah. I need something.”
       The victim: “What?
       The Defendant: “Sex. Sorry I do.”
       The victim: “LOL. Sorry.”
       The Defendant: “Why you sorry? Not your fault. I just need to find someone
       who wants to.”
       The victim: “Your wife.”
       The Defendant: “She don’t want to and you don’t either. I guess you don’t want me.
       Got to find someone who want[s] to.”
       ....
       The Defendant: “Want to run away? Want to run away?
       The victim: “I’ve been so tempted to it’s not even funny.”



                                             -8-
The Defendant: “You don’t want to with me. I want a wife and a girlfriend and I
want to try one thing that’s really nasty and you would not talk to me if I told you.”
The victim: “Try me.”
The Defendant: “I want to suck a d--k one time to see what it’s like. Told ya.” The
victim: “Okay. There’s nothing wrong with that.”
The Defendant: “Yeah, but you don’t want to marry me and let me have a girlfriend
and let me suck d--k.”
....
The Defendant: “What’s it like to suck c--k? Do you like it.”
The victim: “Yeah, it’s diff.”
The Defendant: “You like sucking my c--k, honey?”
The victim: “I told you I did.”
....
The Defendant: “Yeah. Good point. So you going to let me have a girlfriend, huh?”
The victim: “Yep.”
The Defendant: “Why?”
The victim: “Said you wanted one.”
The Defendant: “That’s my girl. You have to help pick one out because you will lick
her p---y for—”
The victim: “K.”
The Defendant: “Do you want to or no?”
The victim: “Don’t know what you like.”
The Defendant: “I want you to like p---y, but do you want to? I want you to like p---y
but do you want to?”
The victim: “I guess.”
....
The Defendant: “Yeah. You can say no.”
The victim: “Okay. Then that would be the only thing that I wouldn’t do.”
The Defendant: “I won’t be happy though.”
....
The Defendant: “Okay. I really want to see you but you don’t sound like you do.”
The victim: “No, I do.”
The Defendant: “You sure? Okay. If I suck a d--k you have to be there with me and
watch, okay?”
The victim: “I don’t know.”
....
The Defendant: “Okay. I’m so f--king horny right now.”
....
The Defendant: “You like me being horny?”
The victim: “Yeah, kind of.”

                                      -9-
          The Defendant: “Yeah, hey I met a girl today perfect for what we talked about.”

Detective Harris further testified that, in one text, the Defendant instructed the victim to erase
his message. The victim also informed the Defendant in a text message that C.L. saw one
of his texts asking to meet and that her mother “bought [her] story” about the message, but
C.L. “was not giving up easy.” Later, the victim2 texted that she was changing at school for
band practice, and the Defendant asked about other girls in the locker room with the victim,
“Any good p---y in there?” They then discussed whether or not she had looked at the other
girls while they were changing.

        When the victim was texting the Defendant in Det. Harris’s office on the February 19,
the following exchange occurred:

          The victim: “Well, I want to see you. I’m starting to really like having sex with you.”
          The Defendant: “We don’t have sex.”
          The victim: “LOL. What do you call it then?”

The victim then asked the Defendant to call her, and the Defendant replied that he was
unavailable. He also said, “I’m sorry this doesn’t seem like you.” The Defendant started to
talk about God. He then noted that normally she never wanted to call him and said that he
would not “be able to meet for two weeks, maybe longer.”

        On cross-examination, Det. Harris testified that the victim made the following
statement regarding her meetings with the Defendant: “[H]e had told her that every time they
saw each other they needed to have sex.” The victim further relayed that each time they met,
they engaged in either oral sex or intercourse. The victim did not say that there was anything
unique about the Defendant’s penis. The victim could not provide a specific date for their
first sexual encounter. She did provide that the meetings at the boat dock usually occurred
between 11:00 p.m. and 1:30 a.m. Detective Harris confirmed that, based upon the
statements of the victim, there were approximately twenty-six occasions between January 11
and February 18 where she and the Defendant had sexual relations of some kind.

       The Defendant testified in his own defense and admitted that he sent the text messages
to the victim. However, he denied ever having intercourse or oral sex with the victim.
According to the Defendant, the relationship with the victim never went beyond the improper
texting stage; “it was just phone sex.” On cross-examination, the Defendant testified that he
never actually met with the victim and that they just pretended to set up a meeting via text



2
    At this point, the victim’s mother had the phone and was pretending to be the victim.

                                                    -10-
messaging, serving to increase his arousal. The inappropriate text messaging was simply
“role playing” according to the Defendant.

       Sarah Harding, the Defendant’s wife, testified that she and the Defendant usually went
to bed between 10:00 p.m. and 11:00 p.m. According to Mrs. Harding, she was “a very light
sleeper” and would wake up anytime the Defendant got out of bed. Mrs. Harding could not
remember the Defendant ever getting out of bed at night and then leaving the house during
the months of January and February 2009. She testified that “there’s no possibility” the
Defendant could “sneak out of the house” at night because they kept their bedroom door shut,
so she would have heard it open. Furthermore, according to Mrs. Harding, the Defendant did
not have any sexually transmitted diseases, and he had “two bumps on the bottom of [his
penis] that you can feel when you’re giving oral sex.”

        Laura Doyka, the Defendant’s sister-in-law, testified that she lived with the Defendant
and her sister at their Gallatin home during the months of January and February 2009. Her
bedroom was above the garage. Every time the garage door opened, not only would she hear
it, but her bed would shake, waking her up. Ms. Doyka testified that the Defendant and her
sister almost always parked their cars inside the garage. Ms. Doyka stated that, during this
timeframe, she did not remember any “specific incidents” of the garage door opening
between 11:00 p.m. and 1:30 in the morning. She stated that she knew “there was not more
than two times” that the garage door opened in the middle of the night because “if it
happened more than once or twice [she] would have questioned the fact.” She admitted that
she was not “there every single night.”

      At the conclusion of trial, the State made the following election of offenses in closing
argument:

       I want to point out this is Count One of the indictment, on or about January
       10th and on or about February 18th. This is the one that [the victim] testified
       that was intercourse by the boat dock in the woods. This is the first time that
       she remembers having intercourse since her trip to Florida.

              Count Two, late January 2009, oral sex. This is the Count where [the
       victim] testified that she was in his bedroom when he invited her to the hot tub.
       Oral sex [the victim’s] mouth on his penis.

              Count Three, this is the next incident that she recalls, intercourse in the
       woods by the boat dock a couple of days after the first incident at the boat
       dock that she remembers.



                                              -11-
                Count Four, again, intercourse in the woods next to the boat dock, a
         couple of days after Count Three.

                Count Five, again, oral sex, this is again, victim on the [D]efendant, in
         the woods by the boat dock. This is the time that she testified this was second
         time that she remember[s] having oral sex.

               Count Six, this is the last time she recalled having oral sex, again, in the
         woods by the boat dock, early February 2009.

                Count Seven, this was February 15th, this is the Count that we talked
         about earlier, February 15th going into the early morning hours of the 16th.
         Again, intercourse.

               Count Eight, intercourse in the woods by the boat dock. This is the day
         her mother became suspicious and the day before she went to the
         Hendersonville Police Department.

Following the conclusion of proof, the jury found the Defendant guilty as charged in Counts
One through Four, Count Six, and Count Eight. The jury found the Defendant not guilty of
Count Five and guilty of the lesser-included offense of attempted aggravated statutory rape
in Count Seven.

       The trial court sentenced the Defendant to four years for the six aggravated statutory
rape convictions and two years for the attempt conviction. The trial court further ordered that
Counts One and Seven were to run concurrently with one another but consecutively to all of
the remaining counts, resulting in a total effective sentence of twenty-four years in the
Department of Correction.

      Following the motion for new trial hearing, the trial court dismissed the verdict in
Count Seven, determining “that the jury’s finding that the Defendant was guilty of attempted
aggravated statutory rape was inappropriate[.]”3 The case is now properly before this court.

                                              ANALYSIS

       On appeal, the Defendant raises the following issues for our review: (1) whether the
indictment was insufficient for failing to provide specific dates for the offenses; (2) whether
the evidence was sufficient to sustain the convictions; (3) whether the trial court erred by

3
    We must remand for entry of corrected judgments reflecting dismissal of Count Seven.

                                                  -12-
excluding testimony from an alibi witness; and (4) whether the trial court imposed an
excessive sentence.4 We address each in turn.

                                    I. Defective Indictment
        The Defendant contends that Counts One through Six of the indictment were defective
for failing to list the specific dates of the alleged offenses, thereby prohibiting him from
preparing a proper defense. Specifically, his claim of prejudice is as follows:

          [The victim] was certainly under the age of majority, but was not a child of
          tender years to whom a calendar is meaningless. Since the State was able to
          elicit dates during direct examination at trial, then certainly specific dates for
          Counts One through Six could have been calculated through simple
          conversation with the victim for inclusion into the indictment. . . . To fail to
          do so . . . is inexcusable, whether by oversight, neglect or by strategy; and rises
          to the level of trial by ambush.

      An indictment or presentment must inform the accused of “the nature and cause of the
accusation.” U.S. Const. amend. VI; Tenn. Const. art. I, § 9. In addition, Tennessee Code
Annotated section 40-13-202 requires that an indictment

          must state the facts constituting the offense in ordinary and concise language,
          without prolixity or repetition, in a manner so as to enable a person of common
          understanding to know what is intended and with that degree of certainty
          which will enable the court, on conviction, to pronounce the proper judgment.

       An indictment that achieves its “overriding purpose of notice to the accused will be
considered sufficient to satisfy both constitutional and statutory requirements.” State v.
Hammonds, 30 S.W.3d 294, 300 (Tenn. 2000). Our supreme court has held that an
indictment is sufficient to satisfy notice requirements if it “contains allegations that (1)
enable the accused to know the accusation to which answer is required; (2) furnish the trial
court an adequate basis for entry of a proper judgment; and (3) protect the accused from a
subsequent prosecution for the same offense.” Id. at 299 (citing State v. Hill, 954 S.W.2d
725, 727 (Tenn. 1997)).

       Initially, the State argues that the Defendant has waived this claim by failing to
include a transcript of the motion for new trial hearing as a part of the appellate record. In
his motion for new trial, the Defendant raised the following issues, among others: (1) “[The
victim] was unable, without specificity, to indicate dates of occurrences, thereby prohibiting

4
    For the purpose of clarity, we have reordered the issues as presented by the Defendant in his brief.

                                                     -13-
the defense in determining possible alibi, facts or witnesses”; and (2) “In the absence of
specificity of dates, Counts 3 and 4 of the indictment are duplicitous.” In the order denying
the motion for new trial, the trial court clearly states that it ruled on all issues “in detail in
open court” except the allegation regarding a duplicitous indictment, which was taken under
advisement. The trial court thoroughly addressed the duplicitous indictment issue in its
order, concluding that the allegation had no merit. The trial court reasoned that the issue was
not one of “duplicity” but of “multiplicity,” and determined as follows:

                Upon considering the testimony of the victim, . . . and by examining the
        dates in Counts One, Two, and Three, [sic] it is clear that the testimony of the
        victim and the dates from the counts of the indictment set out three separate
        instances that are alleged in Counts One, Three, and Four. Count One alleges
        sexual intercourse between January 10, 2009 and February 18, 2009. Count
        Three alleges sexual intercourse in January 2009, and Count Four alleges
        sexual intercourse in January 2009. The victim testified that the first time that
        she recalled intercourse with the Defendant after she returned from Florida
        was at the boat dock. She confirmed that she had told Det. Harris that this
        event happened on the 11th of January. She testified that the second incident
        involving sexual intercourse occurred not long after the first occasion of
        intercourse, within a few days, at the boat dock. She testified that the third
        time that intercourse occurred was within a few days of the second act of
        intercourse at the boat dock.

        However, the issue is not raised in terms of duplicity or multiplicity on appeal but
rather simply that the lack of specific dates prevented him from preparing a defense, more
akin to the issue presumably addressed by the oral findings of the trial court at the motion for
new trial hearing. The State correctly notes that a transcript of that proceeding is not
included in the record on appeal.5 The appellant carries the burden of ensuring that the
record on appeal conveys a fair, accurate, and complete account of what has transpired with
respect to those issues that are the bases of appeal. See Tenn. R. App. P. 24(b). If an
incomplete record is presented to this court, the appellant risks waiving issues raised on
appeal. The Defendant has arguably waived consideration of the issue for failing to include
the motion for new trial transcript in the record on appeal.

       The State also argues waiver because the Defendant did not raise any issue regarding
the indictment before trial. At any time while a case is pending, a court may hear a claim that
the indictment fails to show jurisdiction in the court or charge an offense. Tenn. R. Crim.


5
  Oddly enough, a portion of the trial transcript entered as an exhibit at the motion for new trial hearing is
included in the appellate record.

                                                    -14-
P. 12(b)(2)(B). All other objections to the sufficiency of the indictment must be made prior
to trial, or the issue will be deemed waived. Tenn. R. Crim. P. 12(b)(2)(B), (f)(1); State v.
Kennedy, 649 S.W.2d 275, 279 (Tenn. Crim. App. 1982), overruled on other grounds by
State v. Holt, 691 S.W.2d 520, 522 (Tenn. 1984). The Defendant did not challenge the
indictment prior to trial and does not allege that it fails to show jurisdiction or charge an
offense. Moreover, as the State notes, the Defendant could have requested a bill of
particulars if he needed further clarification regarding specific dates of the offenses, which
he did not. Accordingly, we agree that this issue is waived.

        Waiver notwithstanding, we also agree with the State that the indictment, specifying
both a month and a year for each offense, was not defective. The Defendant asserts that the
lack of specific dates prevented him from preparing a defense, specifically he contended in
his motion for new trial, “in determining possible alibi, facts or witnesses.” However, an
indictment is not required to state the exact date an offense is alleged to have occurred unless
the date of the offense is a material ingredient to the offense. See Tenn. Code. Ann. §
40-13-207; State v. Byrd, 820 S.W.2d 739, 740 (Tenn. 1991). “[T]he State need allege only
that the offense was committed prior to the finding of the indictment or presentment.” Byrd,
820 S.W.2d at 740. Moreover, we note that the State made the necessary election of offenses
in its closing argument. The Defendant is not entitled to relief on the basis of this claim.
See, e.g., State v. Clifford Eric Burgess, No. M2008-01370-CCA-R3-CD, 2009 WL
2433059, at *6 (Tenn. Crim. App. Aug. 10, 2009).

                                II. Sufficiency of the Evidence
        The Defendant contends that the evidence was insufficient to sustain his six
convictions for aggravated statutory rape. An appellate court’s standard of review when a
defendant questions the sufficiency of the evidence on appeal 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). This court does not reweigh the evidence; rather, it presumes that
the jury has resolved all conflicts in the testimony and drawn all reasonable inferences from
the evidence in favor of the State. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984);
State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions regarding witness
credibility, conflicts in testimony, and the weight and value to be given to evidence were
resolved by the jury. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). A guilty verdict
“removes the presumption of innocence and replaces it with a presumption of guilt, and [on
appeal] the defendant has the burden of illustrating why the evidence is insufficient to
support the jury’s verdict.” Id.; State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

       Regarding the Defendant’s six convictions for aggravated statutory rape, the State was
required to prove “unlawful sexual penetration of a victim by the defendant, or of the

                                              -15-
defendant by the victim when the victim is at least thirteen (13) but less than eighteen (18)
years of age and the defendant is at least ten (10) years older than the victim.” Tenn. Code
Ann. § 39-13-506(c). “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.” Tenn. Code Ann. § 39-13-
501(7).

       In attacking the sufficiency of the evidence against him, the Defendant argues that
“the jury acted irrationally.” Specifically, he points to inconsistencies in the victim’s
testimony, noting that she could not provide much detail regarding specific dates for the
offenses, that she was unsure if the Defendant ever ejaculated, and that she lied about being
physically abused by her mother. According to the Defendant, the jury was “so inflame[d]”
by the text messages “that their emotions overruled their reason and common sense.” The
jury obviously accredited the victim’s testimony, however. It is well settled law in Tennessee
that “the testimony of a victim, by itself, is sufficient to support a conviction.” State v.
Strickland, 885 S.W.2d 85, 87 (Tenn. Crim. App. 1993). Moreover, the jury was free to
conclude that the text messages and the recorded phone call served to corroborate the
victim’s verison of events.

       Here, the evidence supported the convictions for aggravated statutory rape. The
victim testified that she and the Defendant had intercourse on at least four separate occasions
and oral sex on at least two separate occasions. According to Det. Harris, the victim
estimated that she had approximately twenty-six sexual encounters with the Defendant during
the months of January and February 2009.

       Issues of a witness’s credibility are solely within the province of the jury. The proof
reflected that at all relevant times, the victim was sixteen years old and the Defendant was
more than ten years her elder. Under the relevant statutes, these events constituted sexual
penetration of the victim by the Defendant and, therefore, aggravated statutory rape.

        The Defendant spends much of his sufficiency argument discussing the prejudicial and
offensive nature of the text messages, contending that they were so inflammatory as to
preclude the jury from reaching a rational verdict. However, the Defendant never objected
to the text messages at trial. See Tenn. R. App. 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.”). Additionally, the text messages were clearly relevant to the issues, corroborating
the sexual nature of the relationship between the Defendant and the victim. The evidence
is sufficient to support the Defendant’s six convictions.

                                              -16-
                                     III. Alibi Evidence
       In the Defendant’s next issue, he asserts that the trial court erred in prohibiting him
from calling an alibi witness, eighteen-year-old Andrew Doyka, the brother of the
Defendant’s wife, Sarah Harding. Mr. Doyka would have testified that the Defendant was
with him throughout the day and into the evening of February 18, 2009, the specific date
alleged in the Count Eight of the indictment charging intercourse at the boat dock.

      Tennessee Rule of Criminal Procedure 12.1 governs notice of alibi. Rule 12.1
provides, in pertinent part, as follows:

       (a) State’s Request and Defendant’s notice.

              (1) State’s Request for Notice of Alibi Defense. A district attorney
       general who desires disclosure of a potential alibi defense shall serve the
       defendant with a written request to be notified of an intention to offer an alibi
       defense. The request shall state the time, date, and place at which the alleged
       offense was committed.

               (2) Defendant’s Notice in Response. On written request of the district
       attorney general under Rule 12.1(a)(1), the defendant intending to offer an
       alibi defense shall serve on the district attorney general a written notice of this
       intention.

                      (A) Content. The defendant’s notice shall state:

                             (i) the specific place or places at which the
                      defendant claims to have been at the time of the
                      alleged offense; and

                            (ii) the name and address of each alibi
                      witness on whom the defendant intends to rely.

                     (B) Timing. Unless the court directs otherwise, the
              defendant shall serve such notice within ten days of the state’s
              request.

       (b) State’s Response to Defendant’s Notice.




                                              -17-
               (1) Disclosure. If the defendant serves a notice pursuant to Rule
        12.1(a)(2), the district attorney general shall disclose in writing to the
        defendant the name and address of:

                        (A) each witness on whom the state intends to rely to
                 establish the defendant’s presence at the scene of the alleged
                 offense; and

                        (B) each witness on whom the state intends to rely to
                 rebut testimony of any of the defendant’s alibi witnesses.

               (2) Timing. Unless the court directs otherwise, the district attorney
        general shall serve this notice within ten days after receiving defendant’s
        notice of alibi but in no event less than ten days before trial.

        (c) Continuing Duty to Disclose. If before or during trial either party learns of
        the existence of an additional witness who should have been included in the
        information furnished under Rule 12.1(a)(2)(A) or 12.1(b)(1), that party shall
        promptly notify the other party of the name and address, if known, of such
        additional witness.

        (d) Failure to Comply. If a party fails to comply with this rule, the court may
        exclude the testimony of any undisclosed witness offered by such party as to
        the defendant’s absence from or presence at the scene of the alleged offense.
        This rule does not limit the defendant’s right to testify.

        (e) Good Cause Exceptions. For good cause shown, the court may grant an
        exception to any of the requirements of this rule.

This rule is only triggered by the written demand for such a notice from the district attorney
general. See Tenn. R. Crim. P. 12.1, Advisory Comm’n Cmts. As supplemented,6 the record


6
   When this case was first before this Court, the record did not contain a written demand by the district
attorney general for notice of an alibi defense. Ultimately, due to this omission, we reversed and vacated the
Defendant’s six convictions for aggravated statutory rape, reasoning that the reporting requirements of Rule
12.1 were triggered only by such a written demand, and granted plain error relief due to the trial court’s
exclusion of testimony from an alibi witness. See State v. Anthony S. Harding, No. M2011-00597-CCA-R3-
CD, 2012 WL 6062855 (Tenn. Crim. App. Dec. 6, 2012). Thereafter, the State requested a rehearing and
sought supplementation of the record to include the State’s written “Discovery Response and Reciprocal
Discovery Request” filed in the Sumner County Criminal Court on June 12, 2009. We granted the motion
                                                                                                 (continued...)

                                                     -18-
on appeal contains a written demand by the district attorney general for notice of an alibi
defense filed in the trial court on June 12, 2009.

       Apparently on the first day of trial, a Monday morning, defense counsel informed the
prosecutor that he planned to call Mr. Doyka. So prompted, the prosecutor moved to exclude
the proposed testimony after the State presented its case-in-chief. During a jury-out hearing,
the defense made an offer of proof concerning Mr. Doyka’s proposed testimony.

        Mr. Doyka’s testimony revealed that the Defendant and Mrs. Harding brought Mr.
Doyka to defense counsel’s office on the Saturday before the trial was to begin the following
Monday morning. Defense counsel had never spoken with Mr. Doyka before this meeting.
Mr. Doyka testified that he, along with his younger twelve-year-old sister, spent the night at
the Defendant’s house on the night of February 17, 2009. According to Mr. Doyka, on the
morning of the 18th, they awoke between 7:00 and 7:30 a.m. and had breakfast at the
Defendant’s house that morning. Being home-schooled, they then did their school work. Mr.
Doyka testified that, after finishing his school work, his brother came to the house. He, his
brother, and the Defendant left to go play disc golf. Mr. Doyka estimated that they left the
house around 2:00 p.m. and later returned between 4:00 and 4:30 p.m. Upon their return
from disc golf, Mr. Doyka and his younger sister played games and ate dinner with the
Defendant and Mrs. Harding that evening. According to Mr. Doyka, his mother picked him
and his younger sister up from the Defendant’s house at approximately 9:00 p.m. Mr. Doyka
testified that he was with the Defendant “most of” the day on the 18th. The trial judge asked
Mr. Doyka why this day was significant to him, and Mr. Doyka responded that he
remembered it after going over it with the Defendant. Mr. Doyka admitted that he talked
with the Defendant about these details “not too long after the 18th of February.”

       The prosecutor averred that, just because defense counsel was unable to speak with
Mr. Doyka until the Saturday before trial, the Defendant was not excused from the ten-day
notice of alibi, given that the Defendant had previously discussed these details with Mr.
Doyka. The trial judge stated that the prosecutor had “brought up” Rule 12.1 seeking
exclusion of the testimony for failure to comply with its requirements and asked defense
counsel “to speak to that [r]ule.” Defense counsel responded, “Your Honor, I am under a
continuing obligation to report to the State, as is the State.” Defense counsel further
provided that he did not have the prosecutor’s home number, thus having no means to contact
him over the weekend. The trial court then granted the request to exclude Mr. Doyka’s
testimony, ruling as follows:



6
 (...continued)
to supplement and the petition to rehear based upon the supplemented record.

                                                 -19-
               Okay. I appreciate the attorneys and I know the situation here, but this
       is potentially damaging evidence. But I can’t -- I can’t go into all that. Then
       there’s a possibility of a significant impeachment here, too. But all that aside,
       I mean, I’ve got to consider Rule 12.1 here and, you know, what could have
       been done Monday morning. We could have been given the name of this
       [witness]. How he could be reached or even more significantly, introduction
       to the State and a more definite statement as to the terms and parameters of his
       testimony. The General could have had time over the last couple of days to
       kind of run something down and be ready for it one way or the other.

               Now, if this testimony here is received, it’s significant alibi testimony
       from 2:00 p.m. until 9:00 at night that night according to this witness, this
       defendant was with this witness during a time practically making it impossible
       if this witness is to be believed and if he’s correct in his dates and so forth. It
       would make it impossible for the events to happen February the 18th.

              Sometimes you just have to look at the Rules and you follow the rules.
       That’s all I can do. . . . [The court then quoted Rule 12.1(d)].

               I find that the District Attorney’s Office had requested any Notice of
       Alibi, and I understand the significance of attorneys talking to witnesses and
       getting ready for trial, but I think we should have done a little bit more here to
       put the State on notice that this witness was absolutely ready to just obliterate
       any event that happened on February 18th.

        Thereafter, the Defendant did not include the issue in his motion for new trial.
Moreover, as previously noted, he did not include a transcript of the motion for new trial in
the appellate record, which would show whether the issue was possibly addressed in some
way at the hearing. On appeal, the State argues that the Defendant has waived this issue by
failing to include it in his motion for new trial. We agree that the Defendant has waived
plenary review of this issue on appeal.

        Tennessee Rule of Appellate Procedure 3(e) states, in pertinent part, that “in all cases
tried by a jury, no issue presented for review shall be predicated upon error in the admission
or exclusion of evidence, . . . or other action committed or occurring during the trial of the
case, or other ground upon which a new trial is sought, unless the same was specifically
stated in a motion for a new trial; otherwise such issues will be treated as waived.” Tenn. R.
App. P. 3(e); see State v. Martin, 940 S.W.2d 567, 569 (Tenn. 1997) (holding that a
defendant relinquishes the right to argue on appeal any issues that should have been
presented in a motion for new trial); State v. Dodson, 780 S.W.2d 778, 780 (Tenn. Crim.

                                              -20-
App. 1989); see also State v. Alvarado, 961 S.W.2d 136, 153 (Tenn. Crim. App. 1996)
(observing that an issue is typically waived when it is raised for the first time on appeal).
The Defendant does not request plain error review of this issue, and based on the
supplemented record, we do not discern a basis for plain error review given the facts of this
case. See Tenn. R. App. P. 36(b). Based on the foregoing, we conclude that Defendant has
waived plenary review of this issue by failing to preserve it for appellate review.

                                           IV. Sentencing
        The Defendant challenges the trial court’s sentencing determinations, taking exception
to the imposition of the maximum sentence on each count and the imposition of consecutive
sentencing. Before a trial court imposes a sentence upon a convicted criminal defendant, it
must consider: (a) the evidence adduced 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) evidence
and information offered by the parties on the enhancement and mitigating factors set forth
in Tennessee Code Annotated sections 40-35-113 and 40-35-114; (f) any statistical
information provided by the Administrative Office of the Courts as to Tennessee sentencing
practices for similar offenses; and (g) any statement the defendant wishes to make in the
defendant’s own behalf about sentencing. Tenn. Code Ann. § 40-35-210(b). To facilitate
appellate review, “it is critical that trial courts adhere to the statutory requirement set forth
in Tennessee Code Annotated section 40-35-210(e)” and articulate in the record its reasons
for imposing the specific sentence. See State v. Bise, 380 S.W.3d 682, 705 n.41 (Tenn.
2012).

       At the September 20, 2010 sentencing hearing, the presentence report was entered into
evidence. The report reflected that the Defendant did not have a criminal record. The report
also showed that the Defendant had a history of employment at restaurants and gas stations.

       Lori Meyers testified that she was a clinical supervisor and therapist at the Sexual
Assault Center in Nashville. Ms. Myers began counseling the victim in February 2009 and
was still counseling her at the time of the sentencing hearing. The victim relayed to Ms.
Myers that there were threats involved with the statutory rapes. When the victim first came
to Ms. Myers’ office, she was suffering from post-traumatic stress disorder, exhibiting such
symptoms as nightmares, flashbacks, “[a] lot of anxiety,” and “safety and trust issues.”
According to Ms. Myers, the victim progressed with therapy. When asked what the long-
term effects might be on the victim, Ms. Myers replied, “A future of having some addictions,
an addictive behavior, having eating disorders, having relationship difficulties. Chronic
depression, anxiety. There can be suicidal ideations that are associated with that, which are
thoughts of suicide. Some disassociation and generally, not functioning well and fully
functioning in society.” Ms. Myers confirmed that the victim had “suicidal ideations” over

                                              -21-
the course of therapy. She stated that the victim continued to have “trust issues,” which
could “continue for quite a while.” In May 2009, Ms. Myers wrote a letter to the victim’s
landlord detailing the victim’s issues and Ms. Myers’ concerns, and the landlord allowed the
victim’s mother out of the lease. A letter from Ms. Myers providing much of the same
information was attached as an exhibit to her testimony.

        Victim impact statements by the victim and her mother were admitted as exhibits to
the hearing. The victim’s mother testified the she had a “very good relationship” with her
daughter prior to these events. The victim’s mother stated that their relationship began to
change when the victim began to have trust issues. She also noticed that the victim’s
relationship with her friends became “strained.” After the victim started therapy, their
relationship improved. When asked about how her daughter’s trust issues developed, she
replied that the victim’s father was often away and that the Defendant “stepped into a father-
figure role and then abused [the victim]. He abused her trust.” Following a doctor’s
examination, the victim tested positive for the human papillomavirus (HPV). This virus,
according to the victim’s mother, would stay in the victim’s “system forever” and was “one
of the leading causes of cervical cancer.”

        The victim’s mother then discussed the numerous days she had missed from work due
to these events. She stated that this had impacted her financially, exhausting her leave time
at work and resulting in her no longer being compensated for time off. She also had to
“drain” a savings account to afford their move to a new place. The victim’s mother also
testified that she “held guilt” for failing to protect her daughter.

       During a recent outing to a grocery store, the victim and her mother ran into the
Defendant. According to the victim’s mother, she “pushed [the victim] into the back part of
the bakery section[, and the victim] just stood up against the wall shaking.” She then
requested the maximum sentence for the Defendant, desiring “some safety” and “some peace
of mind.”

       The victim then testified. When asked about threats from the Defendant, the victim
replied that he told her that if she ever moved “he would find [her] and that [she] belong[ed]
to him.” He also said that she could not tell anyone about these events because they would
both “get in trouble.” According to the victim, some of the Defendant’s text messages had
“threatening undertones.”

        The victim noted that her relationship with her friends began to change when she
started to have a sexual relationship with the Defendant and that she started to “withdraw
[her]self from everybody.” She also relayed that she “pulled [her]self away from” her
mother. She agreed that she had progressed with therapy, only occasionally having

                                             -22-
nightmares now. The victim then discussed her trust issues and safety concerns, knowing
she could run into the Defendant at any moment. Furthermore, she testified that she had been
greatly affected by the loss of her virginity to the Defendant and her HPV diagnosis.

       Richard Harding, the Defendant’s father, then testified about ear surgery that the
Defendant required as a child and about multiple awards the Defendant received for playing
high school football. The Defendant’s mother passed in 1997, when the Defendant was in
high school. Although he was highly recruited, the Defendant never played football at the
college level because “[h]e skipped the SATs and that made him ineligible.” Although the
Defendant expressed “remorse that he made a mistake,” he never admitted to his father that
he engaged in any physical contact with the victim. The Defendant’s father asked for
leniency, noting that the Defendant was remorseful and wanted to get help.

       The Defendant then testified. According to the Defendant, he anticipated that he
would require another ear surgery in the near future. The Defendant said that, prior to trial,
he had sought medical treatment for the skin tags on his penis. The Defendant had a record
from his doctor noting his treatment for these skin tags, which was entered into evidence.

       According to the Defendant, at the time of sentencing hearing, he was working full-
time at Chili’s restaurant for forty to forty-five hours a week and going to school full-time,
taking fifteen credit hours. He testified that he was currently attending Middle Tennessee
State University (MTSU) and that he had transferred there from Volunteer State Community
College in order to obtain a Bachelor’s Degree in the school of Business Administration.
The Defendant stated that he had been selected by MTSU for enrollment in The National
Society of Leadership and Success. A letter from the society student president was entered
as an exhibit.

       The Defendant admitted that the text messages he sent to the victim were “disgusting”
but claimed that they were “not typical” behavior for him. He then stated that he was very
“ashamed” of his actions but denied ever touching the victim. He asked “for professional
assistance in getting better at this sex addiction with text messaging.” He testified that he
had not made any attempts to contact the victim.

        The trial court inquired about the Defendant’s involvement in “sexting relationship[s]”
with other women. According to the Defendant, while he had engaged in this type of
behavior before, the victim was the only one he was not also in a physical relationship with.
The trial court also asked the Defendant why he did not mention his sex addiction during the
psychosexual evaluation, and the Defendant simply responded that “[he] wasn’t asked.” The
trial court noted that, in the report, it was stated that the Defendant denied ever fantasizing



                                             -23-
about or masturbating to thoughts of the victim, but at trial, the Defendant told the jury that
he masturbated while “sexting” the victim.

       Dr. Donna Moore conducted a psychosexual evaluation of the Defendant, and her
report was entered into evidence. In the test results section of the report, Dr. Moore
concluded,

        It should be noted that [the Defendant], despite the lowering of test scores, had
        highest scores on a scale that measures traits of psychopathic deviance.
        Persons who score high on this scale have stormy relationships with family
        members and poor work histories. They are interested in others for what they
        can get from the relationship. They strive for immediate gratification and act
        without considering the consequences for others. . . . They may be perceived
        as good candidates for therapy but prognosis for change is poor as they are
        generally unable to accept blame for their problems.

As for his risk assessment, Dr. Moore found that the Defendant’s “risk for sexual recidivism
should be considered to be in the low category.”

       After considering the foregoing, the trial court sentenced the Defendant to four years
on each count and ordered consecutive sentencing on all six of the remaining counts. The
Defendant alleges that the trial court erred in these determinations. The Defendant’s only
specific asserted error is that the trial court failed to consider that he “is at low risk for
engaging in sexually inappropriate behavior in the future[, which] abrogates the presumption
of correctness[;] . . . [t]herefore, this [c]ourt may conduct its de novo review of all the
evidence presented at trial and the sentencing hearing[.]” The State responds that the record
supports the sentence as imposed.7

                                     A. Length of Sentence
        The 2005 amendments to the Sentencing Act “served to increase the discretionary
authority of trial courts in sentencing. Bise, 380 S.W.3d at 708. Currently, upon a challenge
to the length of the sentence imposed, it is the duty of this court to analyze the issues under
“an abuse of discretion standard of review, 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. Those purposes and principles include “the
imposition of a sentence justly deserved in relation to the seriousness of the offense,”
Tennessee Code Annotated section 40-35-102(1), a punishment sufficient “to prevent crime


7
  The State, in its brief, also discusses whether trial court properly imposed a sentence of confinement, but
because the Defendant did not raise this issue on appeal, it is waived and will not be addressed in the opinion.

                                                     -24-
and promote respect for the law,” Tennessee Code Annotated section 40-35-102(3), and
consideration of a defendant’s “potential or lack of potential for . . . rehabilitation,”
Tennessee Code Annotated section 40-35-103(5). State v. Carter, 254 S.W.3d 335, 344
(Tenn. 2007). The burden of showing that a sentence is improper is upon the appealing
party. See Tenn. Code Ann. § 40-35-401, Sentencing Comm’n Cmts.; see also State v.
Arnett, 49 S.W.3d 250, 257 (Tenn. 2001).

      Our amended Sentencing Act no longer imposes a presumptive sentence. Carter, 254
S.W.3d at 343. Tennessee Code Annotated section 40-35-210 was amended to provide as
follows:

              (c) The court shall impose a sentence within the range of punishment,
       determined by whether the defendant is a mitigated, standard, persistent,
       career, or repeat violent offender. In imposing a specific sentence within the
       range of punishment, the court shall consider, but is not bound by, the
       following advisory sentencing guidelines:

              (1) The minimum sentence within the range of punishment is the
       sentence that should be imposed, because the general assembly set the
       minimum length of sentence for each felony class to reflect the relative
       seriousness of each criminal offense in the felony classifications; and

               (2) The sentence length within the range should be adjusted, as
       appropriate, by the presence or absence of mitigating and enhancement factors
       set out in §§ 40-35-113 and 40-35-114.

             (d) The sentence length within the range should be consistent with the
       purposes and principles of this chapter.

Tenn. Code Ann. § 40-35-210(c), (d) (emphasis added).

         “[T]he 2005 amendments rendered advisory the manner in which the trial court selects
a sentence within the appropriate range, allowing the trial court to be guided by—but not
bound by—any applicable enhancement or mitigating factors when adjusting the length of
a sentence.” Bise, 380 S.W.3d at 760. In accordance with the broad discretion now afforded
a trial court’s sentencing decision,

       misapplication of an enhancement or mitigating factor does not invalidate the
       sentence imposed unless the trial court wholly departed from the 1989 Act, as
       amended in 2005. So long as there are other reasons consistent with the

                                            -25-
       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 Defendant was a Range I, standard offender who was convicted of six Class D
felonies; therefore, he was subject to a sentence between two and four years on each count.
See Tenn. Code Ann. § 40-35-112(a)(4). The trial court enhanced the Defendant’s sentences
to the maximum within the range. The trial court found that two enhancement factors
applied: (7) The offense was committed to gratify the Defendant’s desire for pleasure or
excitement; and (14) The Defendant abused a position of trust. See Tenn. Code Ann. § 40-
35-114 (7), (14). The trial court also found that the “catch-all” mitigator applied and noted
that the Defendant did not have a criminal record, giving it “some weight.” See Tenn. Code
Ann. § 40-35-113(13).

       After determining that these enhancement and mitigating factors applied, the trial
court made the following statement: “But these things all change with the advent of Carter
versus the State of Tennessee. . . . The [s]upreme [c]ourt held that these factors are just
guidelines that we’re to follow, and we’re not to do it the way we used to do where you go
up and down based on mitigating and enhancement factors.” The trial court went on to quote
from Carter, “The [t]rial [c]ourt is free to select any sentence within the appropriate or
applicable range, so long as the length of the sentence is consistent with the purposes and
principles of the [S]entencing [A]ct.” The court then enumerated the purposes and principles
of sentencing found in sections 40-35-102(1), (3) and 40-35-103(5), and went on to apply
them as follows:

              So let’s look at those factors for just a second. I’ve considered the
       imposition of a sentence justly deserved in relation to the seriousness of the
       offense. It doesn’t get much more serious, other than child rape, as to what’s
       happened here.

              A punishment sufficient to prevent crime and promote respect for the
       law, and we will talk about that further.

              And, in consideration of the [D]efendant’s potential or lack of potential
       for rehabilitation. I am very concerned about his potential or lack of potential
       for rehabilitation. That’s why I asked him the questions that I asked him on
       cross-examination. He places a great weight on an addiction that I think is
       only the product of his own imagination. That he’s using to deal with certain
       conflicts in his life, specifically, a conflict of image, trust of family, wife,

                                             -26-
       parent, father, and others. This addiction he has developed, and I asked him
       today point blank about who he’s sexted with others and really couldn’t
       remember his girlfriends and so forth.

              ....

              So I think that you’ve really got some issue with truth, and, as long as
       those issues persist, I don’t see any prospect of rehabilitation. I think
       reviewing some of the things that came forth in this trial is pretty important in
       dealing with this issue. Because how can you rehabilitate somebody that
       hasn’t done any wrong. I’m looking at these text messages, and I’m
       considering the relationship here between a 16 year old girl and a 27 year old
       man.

              ....

               This is in the gutter of life. A 27 year old man who is married talking
       like this, much less having a sexual relationship with a 16 year old girl. . . .

               We talk about evidence here. Look at what this man says. You don’t
       talk like this; you don’t have an addiction . . . . You were using, and you were
       greedy and you were abusing this little 16 year old girl.

              ....

              Dr. Moore’s comments, I think are very, very significant. He had high
       scores on the scale that measures traits of psychopathic deviance. Persons who
       score high on this scale have stormy relationships with family members and
       poor work histories. Wonder who that relates here? They are interested in
       others for what they can get from the relationship.

              ....

              So his lack of potential for rehabilitation is nothing. I don’t see any
       potential for rehabilitation on somebody that doesn’t really come to grips with
       truth.

In rendering its length determination, the trial court states, “[s]o considering all that and the
three factors in Carter,” and then orders the maximum sentence of four years on each count.



                                              -27-
         Given the new directive of Bise from our supreme court, upon a challenge to the
sentence imposed, it is the duty of this court to analyze the issues under “an abuse of
discretion standard of review, granting a presumption of reasonableness to within-range
sentencing decisions that reflect a proper application of the purposes and principles of our
Sentencing Act.” Bise, 380 S.W.3d 707. Because the application of enhancement and
mitigating factors to adjust a sentence was rendered advisory by the 2005 amendments, we
reiterate that the trial court may set a sentence anywhere within the applicable range so long
as the sentence is consistent with the principles and purposes of the Act, regardless of the
presence or absence of mitigating and enhancement factors. The trial court in this case
thoroughly considered the purposes and principles of the Sentencing Act in rendering its
decision; therefore, the imposition of the maximum sentence in the range is affirmed.

                                 B. Consecutive Nature
       The Defendant also challenges the consecutive nature of his sentences. Here the trial
court imposed consecutive sentencing, finding 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). Only one criterion need exist to support the
appropriateness of consecutive sentencing. However, 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[.]” Tenn. Code Ann. § 40-35-103(2) and (4).

        Here, the Defendant was convicted of six offenses involving sexual abuse of a minor,
and the trial court considered the aggravating circumstances surrounding his conduct. The
trial court properly relied on the “continuing” nature of the relationship; that the abuse
involved both intercourse and oral sex, happening “almost every other night”; and that the
victim suffered physical and mental damage from the abuse, suffering from post-traumatic
stress disorder, requiring counseling, and contracting HPV.

       The presence of a single factor is enough to justify the imposition of consecutive
sentences. We affirm the trial court’s imposition of consecutive sentencing.



                                             -28-
                                     CONCLUSION

       Based on the foregoing authorities and reasoning, we affirm the judgments of the trial
court. We remand solely for the entry of corrected judgment forms to reflect dismissal of
Count Seven, the attempt conviction.


                                                   _________________________________
                                                   D. KELLY THOMAS, JR., JUDGE




                                            -29-
