           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                  FILED
                                 AT KNOXVILLE
                                                                 October 6, 1999

                               APRIL 1999 SESSION               Cecil Crowson, Jr.
                                                               Appellate Court Clerk



STATE OF TENNESSEE,                   *    No. 03C01-9805-CR-00176

      Appellee                        *    SULLIVAN COUNTY

V.                                    *    Hon. Phyllis H. Miller, Judge

CLAYTON EUGENE TURNER, II             *    (Rape of a Child, Incest, Assault)

      Appellant.                      *


For Appellant                              For Appellee

Terry C. Frye                              John Knox Walkup
1969 Lee Highway                           Attorney General and Reporter
Bristol, VA 24201                          425 Fifth Avenue North
                                           Nashville, TN 37243-0493
Robert Chad Newton
Assistant Public Defender                  Todd R. Kelley
P.O. Box 839                               Assistant Attorney General
Blountville, Tennessee 37617               425 Fifth Avenue North
                                           Nashville, TN 37243-0493

                                           Barry Staubus
                                           Assistant District Attorney General
                                           P.O. Box 526
                                           Blountville, Tennessee 37617

                                           Teresa Murray Smith
                                           Assistant District Attorney General
                                           P.O. Box 526
                                           Blountville, Tennessee 37617


OPINION FILED:


AFFIRMED


NORMA MCGEE OGLE, JUDGE
                                       OPINION

               On March 11, 1998, the appellant, Clayton Eugene Turner, II, was

convicted in the Sullivan County Criminal Court of rape of a child, incest, and

assault. The trial court imposed a sentence of twenty-five years in the Tennessee

Department of Correction for the rape of a child conviction, a sentence of six years

in the Department for the incest conviction, and a sentence of six months in the

Sullivan County Jail for the assault conviction. The trial court ordered the appellant

to serve the twenty-five year sentence consecutively to the six year sentence and

concurrently with the six month sentence, resulting in an effective sentence of thirty-

one years incarceration in the Department. On appeal, the appellant presents the

following issues for our review:

               1.    Whether the trial court erroneously denied
                     the appellant’s motion to suppress the
                     State’s use at trial of his confession to the
                     police.
               2.    Whether the trial court erroneously
                     permitted the State to amend Count I of the
                     presentment.
               3.    Whether, with respect to the appellant’s
                     conviction of assault, the trial court
                     erroneously denied the appellant’s motion
                     for a judgment of acquittal at the conclusion
                     of the State’s case.
               4.    Whether the trial court erroneously
                     instructed the jury on the appellant’s flight.
               5.    Whether the trial court erroneously denied
                     the appellant’s motion pursuant to Tenn. R.
                     Evid. 412.
               6.    Whether the trial court imposed an
                     excessive sentence.
               7.    Whether the appellant’s sentence
                     constitutes cruel and unusual punishment
                     pursuant to the United States and
                     Tennessee constitutions.

Following a review of the record and the parties’ briefs, we affirm the judgment of

the trial court.




                                           2
                                      I. Factual Background

                 On September 25, 1996, a Sullivan County Grand Jury issued a

presentment charging the appellant with one count of aggravated rape of his step-

daughter, MK,1 one count of incest with MK, and one count of aggravated sexual

battery of his step-daughter, RK, the offenses occurring on July 30, 1996. On July

23, 1997, the State submitted a motion to amend Count I of the presentment to

reflect a charge of rape of a child. The trial court granted the motion on July 29,

1997, immediately prior to the commencement of the appellant’s trial.



                 At trial, the State’s proof established that, on July 30, 1996, MK, who

was twelve years old, and her sister, RK, who was ten years old, were visiting their

mother’s home. At the time of the instant offenses, their mother was married to the

appellant. She and the appellant lived with their two sons in a two bedroom trailer in

Bristol, Tennessee. While the girls were visiting their mother, MK slept on a couch

in the living room, and RK slept with her mother and the appellant in one of the

bedrooms.



                 In the early morning hours of July 30, RK awakened to find that she

had been moved from her mother’s side of the bed to the appellant’s side and her

underwear had been pulled down to her knees. The appellant’s hand was on her

“belly button.” RK immediately left the bed, pulled up her underwear, and went to

the bathroom. She then went into the living room and lay down beside her sister on

the couch.



                 Soon thereafter, the appellant entered the living room and told RK to



        1
         Consistent with the policy of this court, we will withhold the identity of young children involved
in sexual abuse cases, identifying them only by their initials.

                                                     3
return to the bedroom. RK complied and immediately fell asleep. Meanwhile, MK

awakened on the couch to find the appellant lying beside her. When MK attempted

to leave the couch, the appellant pulled her back down, reassuring her that “it was

all right.” At MK’s insistence, however, the appellant agreed to allow her to go to the

bathroom. After MK had been in the bathroom for some time, the appellant entered

and remarked that MK was “pretty” and “a bunch of other stuff.” MK successfully

demanded that the appellant leave the bathroom. MK remained in the bathroom

until the appellant returned to his bedroom.



              Afterwards, MK returned to the couch in the living room and was

attempting to go to sleep when the appellant again approached the couch. This

time, the appellant tried to gag MK with a bandana. When she struggled, the

appellant offered her twenty-five dollars in return for her cooperation. At MK’s

refusal, the appellant placed a towel over MK’s mouth, ripped off her underwear,

and forcibly engaged in sexual intercourse. When MK continued to struggle, the

appellant threatened to kill everyone in the trailer.



              Following the rape, the appellant retrieved all of his clothing from his

bedroom and instructed MK to assist him in placing the clothes into garbage bags

and carrying them to his car. As the appellant was leaving, he informed MK that it

was her fault that he would never see his sons again.



              MK recounted the rape to her mother as soon as her mother

awakened. Her mother called the police, and both MK and RK were transported to

the Bristol Regional Medical Center. At the Medical Center, Dr. Robert Lawson, an

emergency room physician, examined both sisters. He discovered no signs that RK

had been sexually assaulted. However, upon performing a pelvic examination of


                                            4
MK, he discovered that the entrance to MK’s vagina was bruised, the vagina was

reddened, and there appeared to be semen in the vaginal area. He concluded that

these findings were consistent with recent sexual intercourse. Subsequent DNA

testing established that the DNA extracted from the semen matched DNA obtained

from the appellant.



              On the day following the appellant’s offenses, Detective Lisa Christian,

an investigator with the Sullivan County Sheriff’s Department, located the appellant

at Woodridge Hospital in Johnson City, Tennessee, a hospital devoted to the

treatment of mental illness. The appellant was transported to the Sullivan County

Sheriff’s Department, where he provided a statement to the police. In his statement,

the appellant indicated that, prior to entering Woodridge Hospital, he had

experienced blackouts and was possessed by a person named “Jack,” who directed

his actions, including forcing him to watch pornographic movies. The appellant

confessed that he had engaged in sexual intercourse with MK but denied sexually

assaulting or touching RK in any way. Following his statement, the appellant was

incarcerated in the jail, where he was placed on “suicide watch.”



              At the conclusion of the State’s case, the trial court granted the

appellant’s motion for a judgment of acquittal as to the charge of aggravated sexual

battery of RK, set forth in Count III of the presentment. However, the court

determined that it would charge the jury with the lesser included offense of assault

by offensive touching. The court denied the appellant’s motion as to the remaining

counts of the presentment. The appellant then declined to present a case, and,

following a little more than one hour of deliberation, the jury found the appellant

guilty of rape of a child, incest, and assault.




                                             5
                                      II. Analysis

A.     The Appellant’s Confession

              The appellant first contends that the trial court erroneously denied his

motion to suppress the State’s use at trial of his confession to the police.

Essentially, the appellant argues that, at the time of his confession, he was not

competent to knowingly and intelligently waive his Miranda rights.



              On May 23, 1997, the appellant submitted a motion to suppress his

confession to investigators at the Sullivan County Sheriff’s Department. The trial

court conducted a suppression hearing on July 11, 1997. At the hearing, the State

presented the testimony of Detective Lisa Christian, the principle investigator in the

appellant’s case. Consistent with her later testimony at trial, Detective Christian

testified that, at the time of the appellant’s arrest, on July 31, 1996, he was a

psychiatric patient at Woodridge Hospital in Johnson City. Following his arrest, the

appellant was transported from the hospital to the Sullivan County Jail. Before

interviewing the appellant at the jail, Detective Christian advised the appellant that

he was being charged with the rape of a child and also advised him of his Miranda

rights. When she asked him if he understood those rights, the appellant responded

affirmatively, signed an “Advise of Rights” form, and signed a written waiver of his

rights. During the ensuing interview, which lasted approximately three hours, the

appellant agreed to provide a statement to the police. The appellant never indicated

that he wished to see an attorney or otherwise terminate the interview. Moreover,

Detective Christian indicated that, at the time of the interview,

              [The appellant] appeared to be okay.
                                         ***
              [H]e told me his address, his birthday, he knew all that;
              and he could sit there and talk to me. And he said that
              he was okay because I asked him that.

She further testified that the appellant appeared to be alert, responded appropriately


                                            6
to her questions, and did not appear to be under the influence of drugs or alcohol.

However, Detective Christian conceded that, in confessing to the police, the

appellant did discuss an apparently imaginary person named “Jack,” who had

spoken to the appellant in the past and forced him to engage in aberrant behavior.



             The appellant presented the testimony of his father, Clayton Turner,

Sr. Mr. Turner testified that, on July 30, 1996, he received a telephone call from his

son, who was at a gasoline station in East Bristol. The appellant informed his father

that he was being accused of raping his step-daughter and wanted to leave town.

Following the conversation, Mr. Turner and his wife met their son at the gas station.

When they arrived, the appellant appeared to be disoriented and expressed a desire

to commit suicide. Accordingly, his parents transported the appellant to the Medical

Center in Johnson City. Mr. Turner explained that he did not take his son to a closer

facility, because he had “had some bad dealings” with the hospital in Elizabethton,

Tennessee. At the Medical Center in Johnson City, Mr. Turner attempted to

converse with his son. However, the appellant’s speech was “disjointed” and

“irrational.” Later on the same day, the appellant was admitted to Woodridge

Hospital.



             Mr. Turner visited his son at Woodridge the following morning,

remaining with the appellant for approximately one and one half hours. According to

Mr. Turner, the appellant’s condition appeared unchanged. Moreover, Mr. Turner

testified that the appellant believed that he was being pursued by someone named

“Jack.” Mr. Turner testified that, although he maintained a close relationship with his

son, he had never heard his son mention “Jack” before that morning. Mr. Turner

conceded that the appellant recognized his parents and was able to respond to their

questions.


                                          7
              At the court’s request, the State filed a copy of a letter from Central

Appalachia Services, Inc., addressed to the trial court and dated January 24, 1997.

The letter indicated that a licensed psychological examiner and a licensed clinical

psychologist had evaluated the appellant and determined that he was competent to

stand trial and that a defense of insanity was not a viable defense.



              The court then denied the appellant’s motion to suppress his

confession, entering into the record the following findings:

              As far as his being irrational, and talking illogically, and
              out of his head, Mr. Turner’s testimony was sort of
              contradictory. . . . [T]he day before [the defendant’s
              arrest, Mr. Turner] . . . states that the defendant, he just
              couldn’t understand what he said. I think you ask him if
              his speech was disjointed, yes, irrational, yes, illogical,
              yes. But he called his father, he told him where he was.
              He told him exactly what his problem was. He told him
              what he was worried about. He said he had to get out of
              town, and it is interesting even though the father gave
              reason why, he was not taking him to a psychiatric
              hospital at first, he took him to another county, another
              city to just an emergency room, instead of taking him to
              Bristol. . . .

              . . . The next day, the father states that he only talked
              with him that morning. He offered to get him something
              to eat. He said he didn’t want anything to eat. He was
              responding to the father’s questions appropriately, even
              though the father said, well, his speech was about the
              same as the previous day, irrational, illogical. . . .
              [A]ccording to Ms. Christian’s testimony, he managed to
              give her this very detailed information that is at the top of
              the statement on page one, his full address including the
              lot number, the street number, his whole phone including
              the area code, the area code is on there, date of birth,
              where he works; and he signed the advice of rights. She
              stated that he said that he understood them. He signed
              the waiver of rights. She stated that he understood
              them. . . . And the father’s testimony, of the way he was
              answering the father’s questions, and what he knew was
              going on, and there was no evidence at all that he didn’t
              know what he was saying here because what he was
              saying apparently was correct as far as everything that
              could be verified . . . . Now, he does say that somebody
              else, this person named Jack, it is interesting that all of
              these years, his father never heard about this person
              named Jack until after the defendant is alleged to have

                                            8
              committed this crime, and then, there is a person named
              Jack who makes him do, apparently, almost every bad or
              evil thing in his life; and he doesn’t even really take
              responsibility, I guess, for drinking. . . . So, other than just
              blaming what he does on somebody else, . . . it does
              appear that he did make a knowing and intelligent waiver
              of his rights and he gave the statement freely and
              knowingly . . . .



              A trial court’s determination following a suppression hearing is

presumptively correct on appeal and will only be reversed if the evidence in the

record preponderates against the trial court’s findings. State v. Stephenson, 878

S.W.2d 530, 544 (Tenn. 1994). Moreover, at a suppression hearing, the credibility

of witnesses, the weight and value of the evidence, and the resolution of conflicts in

the evidence are matters entrusted to the trial court as the trier of fact. State v.

Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Accordingly, viewing the evidence in a

light most favorable to the State, we conclude that the preponderance of the

evidence supports the trial court’s finding that the appellant voluntarily and

knowingly waived his Miranda rights.



              The Fifth and Fourteenth Amendments to the United States

Constitution and Article I, § 9 of the Tennessee Constitution protect an accused’s

privilege against self-incrimination. Moreover, in Miranda v. Arizona, 384 U.S. 436,

478-479, 86 S.Ct. 1602, 1630 (1966), the United States Supreme Court held that

the Fifth and Fourteenth Amendments’ prohibition against compelled self-

incrimination requires police officers, before initiating custodial interrogation, to

advise the accused of his right to remain silent and his right to counsel. Assuming

the use of these procedural safeguards by police interrogators and provided that the

accused is acting voluntarily, knowingly, and intelligently, an accused may waive his

Miranda rights. State v. Mann, 959 S.W.2d 503, 529 (Tenn. 1997), cert. denied,

U.S.    , 118 S.Ct. 2376 (1998).

                                             9
              The appellant in this case does not allege that the police failed to

comply with the procedural requirements of Miranda. However, he does allege that,

at the time of his confession, “he was incapable of understanding his rights and of

making a knowing waiver of his rights.” The appellant also cites Clark v. State, 800

S.W.2d 500 (Tenn. Crim. App. 1990), and State v. Green, 613 S.W.2d 229 (Tenn.

Crim. App. 1980), for the proposition that the trial court “should have conducted a

competency hearing before ruling on the admissibility of Appellant’s confession.”



              We first address the appellant’s claim that the trial court was required

to conduct a competency hearing. The appellant’s citation to Green provides no

guidance in resolving this issue. In Green, 613 S.W.2d at 233, this court merely

noted that a confession by a mentally unsound suspect is nevertheless admissible if

the accused was capable of making a narrative of past events or stating his own

participation in the crime and the accused was otherwise capable of comprehending

and waiving his constitutional rights. However, this court did not suggest that a trial

court, in determining whether the accused was competent to waive his Miranda

rights, was required to conduct a competency hearing in addition to a suppression

hearing.



              We similarly conclude that this court’s decision in Clark does not stand

for the proposition asserted by the appellant. Our decision in Clark, 800 S.W.2d at

506, addressed a trial court’s obligation, pursuant to Pate v. Robinson, 383 U.S.

375, 385-386, 86 S.Ct. 836, 842 (1966), to sua sponte investigate a defendant’s

competence to stand trial upon receipt of evidence concerning a defendant’s

irrational behavior, or any prior medical opinion on the defendant’s competence, or

upon observing the defendant’s demeanor at trial. The Pate decision was, in turn,

based upon the long standing principal that subjecting a mentally incompetent


                                           10
defendant to trial violates his right to due process of law. Drope v. Missouri, 420

U.S. 162, 171-172, 95 S.Ct. 896, 903-904 (1975). See also Moten v. State, 935

S.W.2d 416, 420-421 (Tenn. Crim. App. 1996)(the trial court’s failure to order a

hearing when evidence raises a sufficient doubt as to the accused’s competence to

stand trial deprives the accused of due process of law).



              The record in this case reflects that, prior to the suppression hearing,

the trial court granted the appellant’s motion for a mental evaluation to ensure his

competency to stand trial and to ascertain whether he was insane at the time of the

instant offenses. As previously noted, a psychological examiner and a licensed

clinical psychologist concluded both that the appellant was competent for purposes

of the ongoing criminal proceedings and that he was sane at the time of the

offenses. Moreover, the sole evidence at the suppression hearing that the appellant

suffered any psychosis essentially comprised the appellant’s own self-serving

statements following the commission of the offenses and the somewhat

contradictory observations of his father. We conclude that the trial court fulfilled its

due process obligations under Pate, 383 U.S. at 385-386, 86 S.Ct. at 842. Again,

we reject the implication in the appellant’s brief that a trial court has any obligation,

separate from and additional to its Pate obligations, to sua sponte investigate a

criminal defendant’s competence to confess to the police his commission of a

charged offense.



              Rather, a criminal defendant possesses a constitutional right to

challenge the admission at trial of his confession and to have an evidentiary hearing

on that issue. Jackson v. Denno, 378 U.S. 368, 376-377, 84 S.Ct. 1774, 1780-1781

(1964); McCravey v. State, 426 S.W.2d 174, 175-176 (Tenn. 1968); Smith v. State,

535 S.W.2d 162, 164-165 (Tenn. Crim. App. 1976); Mitchell v. State, 458 S.W.2d


                                            11
630, 633 (Tenn. Crim. App. 1970). At the evidentiary hearing, the State has the

burden of proving a valid waiver of Miranda rights by a preponderance of the

evidence. State v. Bush, 942 S.W.2d 489, 500 (Tenn. 1997). However, in order to

satisfy this burden, the State need not introduce expert testimony that a defendant

was competent to execute a waiver, even when a defendant introduces expert

testimony to the contrary. Id. Rather, courts will look to the totality of

circumstances. Id.



              In Stephenson, 878 S.W.2d at 544-545, our supreme court defined a

voluntary and knowing waiver of Miranda rights:

              Relinquishment of the right must be voluntary in the
              sense that it is the product of a free and deliberate
              choice rather than the product of intimidation, coercion or
              deception. Moreover, the waiver must be made with full
              awareness of both the nature of the right being
              abandoned and the consequences of the decision to
              abandon. The “totality of the circumstances surrounding
              the interrogation” must reveal both an uncoerced choice
              and the required level of comprehension before a court
              can properly conclude that Miranda rights have been
              waived.

Again, the appellant contends that he did not possess the required level of

comprehension.



              Tennessee courts have previously addressed the effect of an

accused’s insanity upon both the the knowing and intelligent nature and the

voluntary nature of a Miranda waiver. Generally, Tennessee courts have held that

mental illness will not alone render a confession invalid. State v. Bell, 690 S.W.2d

879, 882 (Tenn. Crim. App. 1985); Green, 613 S.W.2d at 233. See also State v.

Perry, No. 01C01-9710-CC-00467, 1999 WL 233522, at **13-14 (Tenn. Crim. App.

at Nashville, April 22, 1999)(a deaf, but literate, defendant with paranoid

schizophrenia, whose chronic use of glue may have impaired his cognitive abilities,


                                            12
and who was administered Miranda warnings without the benefit of a sign language

interpreter, voluntarily and knowingly waived his Miranda rights). Rather, the

evidence must otherwise demonstrate that the accused was incapable of

understanding his rights, Id., or the mental illness affected “his capacity in the first

place to form a will of his own and to reject the will of others.” State v. Benton, 759

S.W.2d 427, 431 (Tenn. Crim. App. 1988). See also State v. Blackstock, No.

01C01-9405-CR-00170, 1997 WL 772908, at *16 (Tenn. Crim. App. at Nashville,

December 9, 1997), perm. to appeal granted, (Tenn. 1998).



              That having been said, in Colorado v. Connelly, 479 U.S. 157, 169-

170, 107 S.Ct. 515, 523 (1986), the United States Supreme Court diminished the

relevance of an accused’s mental state in assessing the voluntariness of a Miranda

waiver. The Court held that police coercion is a prerequisite to a finding that an

accused did not voluntarily waive his Miranda rights. Id. at 170, 523-524. The Court

remarked, “[t]he voluntariness of a [Miranda] waiver . . . has always depended on

the absence of police overreaching, not on ‘free choice’ in any broader sense of the

word.” Id. at 170, 523. Of course, our supreme court has observed that a

defendant’s right under Article I, Section 9 of the Tennessee Constitution is broader

and more protective of individual rights than the test for voluntariness under the Fifth

and Fourteenth Amendments to the United States Constitution. State v. Crump, 834

S.W.2d 265, 268 (Tenn. 1992). Nevertheless, our supreme court has not only cited

Connelly with approval, State v. Brimmer, 876 S.W.2d 75, 79 (Tenn. 1994), but has

appeared to expand the Connelly prerequisite of coercive police activity to inquiries

into the knowing and intelligent nature of a waiver. Bush, 942 S.W.2d at 500-501.

See generally State v. Henderson, No. 03C01-9804-CR-00139, 1999 WL 398087,

at **11-13 (Tenn. Crim. App. at Knoxville, June 18, 1999).




                                            13
                 In Bush, 942 S.W.2d at 500, as in this case, the defendant asserted

that the trial court should have suppressed his statements to the police because he

was not competent to make a knowing and intelligent waiver of his Miranda rights.

In declining to afford relief, our supreme court noted that there was no proof of

police overreaching, as the defendant “appeared normal [during the interrogation],

was coherent and responsive to questioning, and did not discuss demons, vampires,

or other delusions.” Id. at 501. In other words, the relevant question was not

whether the defendant was incompetent in fact but whether he displayed such

incompetence that further questioning by the police constituted “overreaching.” Cf.

Benton, 759 S.W.2d at 431-432 (in the case of a forty-three year old defendant

whose mind functioned at the intellectual level of a five-year-old, the actions by the

police of merely taking the defendant into police custody and questioning him

provided the “coercion” required by Connelly).



                 Applying this analysis, we conclude that the appellant’s references to

past delusions in the absence of any indications of incompetence at the time of his

statement were insufficient to transform the interrogating officers’ conduct into police

overreaching. Moreover, even assuming that the Connelly requirement of police

coercion does not apply to inquiries into the knowing and intelligent nature of a

Miranda waiver, a preponderance of the record in this case supports the trial court’s

finding that the appellant was in fact competent to waive his Miranda rights.2 This

issue is without merit.



B.      The State’s Amendment to Count I of the Presentment

                 The appellant next contends that the trial court erred in permitting the


        2
          In reviewing a trial court’s determination following a suppression hearing, this court may
conside r evidenc e addu ced bo th at trial and a t the supp ression hearing. State v. Henning, 975
S.W .2d 290, 2 99 (Te nn. 1998 ).

                                                   14
State, immediately prior to the commencement of his trial, to amend Count I of the

presentment to reflect a charge of rape of a child instead of aggravated rape. Article

I, Section 14 of the Tennessee Constitution provides that “no person shall be put to

answer any criminal charge but by presentment, indictment or impeachment.” In

accordance, Tenn. R. Crim. P. 7 limits the State’s ability, in the absence of the

defendant’s agreement, to amend indictments or presentments without resubmitting

the matter to the grand jury. See Tenn. R. Crim. P. 7, Advisory Commission

Comments. Under Rule 7(b), a court may permit a non-consensual amendment to

an indictment or presentment only if the following prerequisites are satisfied:

              (1)    Jeopardy has not attached.

              (2)    The amended indictment or presentment
                     does not charge an additional or different
                     offense.
              (3)    The amendment does not prejudice
                     substantial rights of the defendant.




              In applying Tenn. R. Crim. P. 7(b), we initially note that the record does

not reflect that the appellant ever objected to the State’s amendment to the

presentment. Nevertheless, this court has observed that it will not presume a

defendant’s consent to an amendment merely from the defendant’s silence. State

v. Davenport, 980 S.W.2d 407, 409 (Tenn. Crim. App. 1998). Thus, we must

determine whether the prerequisites set forth in Rule 7(b) have been met in this

case.



              Count I of the presentment in this case originally charged:

              Clayton E. Turner, II on or about July 30, 1996 . . . did
              unlawfully, feloniously and knowingly sexually penetrate
              [MK], a person less than thirteen years of age, in
              violation of T.C.A. 39-13-502 . . . .

Tenn. Code. Ann. § 39-13-502 (1997) sets forth the offense of aggravated rape.


                                          15
Before 1992, this statute included a subdivision enhancing the punishment for rape

in cases involving a child less than thirteen years of age. See Tenn. Code. Ann. §

39-13-502, Sentencing Commission Comments. In 1992, the offense of rape of a

child less than thirteen years of age was moved from Tenn. Code. Ann. § 39-13-502

to Tenn. Code. Ann. § 39-13-522 (1996), the current rape of a child statute.

Therefore, at the time of the appellant’s offense, Tenn. Code. Ann. § 39-13-502 did

not contain the offense charged in the presentment. Realizing their mistake, the

prosecutors in this case submitted a motion approximately five days before trial to

amend the presentment to reflect the correct statutory citation. The trial court

granted the State’s motion on the scheduled trial date.



             The appellant concedes, and the record does not reflect otherwise,

that the trial court approved the amendment before jeopardy attached. See State v.

Pennington, 952 S.W.2d 420, 422 (Tenn. 1997)(in jury proceedings, jeopardy

customarily attaches when the jury is sworn). However, the appellant asserts that

the offense of rape of a child, as opposed to the offense of aggravated rape,

involves “different and additional elements” and that defenses available to a charge

of aggravated rape are not available to the charge of rape of a child.



             While it is true that the current offense of aggravated rape and the

current offense of rape of a child involve “different and additional” elements and

possibly different defenses, we have already noted that the factual allegations in the

presentment at issue did not charge the appellant with aggravated rape. In other

words, the factual allegations encompassed none of the aggravating circumstances

set forth in Tenn. Code. Ann. § 39-13-502. Rather, the factual allegations charged

the appellant with rape of a child as set forth in Tenn. Code. Ann. § 39-13-522.

Thus, notwithstanding the appellant’s argument, a cursory examination of the


                                          16
statute originally cited in the presentment would have alerted the appellant of the

State’s error. Moreover, as we have also already noted, the Sentencing

Commission Comments to the aggravated rape statute would have referred the

appellant to the appropriate code section. In short, the challenged amendment to

the presentment did not change the offense charged, the amendment only corrected

an erroneous statutory citation of which the appellant was surely aware.



              In State v. Beal, 614 S.W.2d 77, 80 (Tenn. Crim. App. 1981), this court

held that, because the indictment in that case clearly charged the essential

elements of the offense and the parties were aware of the offense charged, the trial

court did not err in permitting the State to amend the indictment to correct an

erroneous statutory citation. This conclusion was consistent with our general

observation in State v. Bowers, 673 S.W.2d 887, 888 (Tenn. Crim. App. 1984), that,

“[w]hen the words of the charging instrument show the offense for which a person is

charged, the erroneous recitation of a statute is mere surplusage and not fatal to the

charging instrument.” See also State v. Seagraves, 837 S.W.2d 615, 617 n.2

(Tenn. Crim. App. 1992); State v. Morris, No. 01C01-9506-CC-00206, 1996 WL

233989, at **3-4 (Tenn. Crim. App. at Nashville, May 6, 1996). Accordingly, the

amended presentment neither charged a different offense nor prejudiced substantial

rights of the appellant. This issue is without merit.



C.     Motion for Judgment of Acquittal

              The appellant additionally contends that, with respect to his conviction

of assault of RK, the trial court erroneously denied his motion for a judgment of

acquittal at the conclusion of the State’s case. A trial court must grant a motion for a

judgment of acquittal if the evidence is insufficient to sustain a conviction of the

charged offense. Tenn. R. Crim. P. 29. In making this determination, the trial court


                                           17
may not address the weight of the evidence, but must afford the State the strongest

legitimate view of the evidence, including all reasonable inferences which may be

drawn from the evidence. State v. Blanton, 926 S.W.2d 953, 957-958 (Tenn. Crim.

App. 1996). An appellate court applies the same standard as the trial court when

resolving issues predicated upon the grant or denial of a motion for judgment of

acquittal. State v. Adams, 916 S.W.2d 471, 473 (Tenn. Crim. App. 1995).



                 As previously noted, the trial court did grant the appellant’s motion for

a judgment of acquittal as to the offense of aggravated sexual battery, charged in

Count III of the presentment. However, the court concluded that the evidence was

sufficient to support a charge of the lesser included offense of assault. State v.

Trusty, 919 S.W.2d 305, 310-311 (Tenn. 1996)(a constitutionally adequate

indictment for one offense will additionally provide notice of all lesser grade and

lesser included offenses). 3 Accordingly, the trial court charged the jury pursuant to

Tenn. Code. Ann. § 39-13-101(a)(3) (1997), which provides:

                 A person commits assault who: . . . Intentionally or
                 knowingly causes physical contact with another and a
                 reasonable person would regard the contact as
                 extremely offensive or provocative.



                 At trial, the State’s proof established that the appellant had been

watching pornographic movies and experiencing deviant sexual impulses prior to the


        3
           In State v. Howard, 926 S.W .2d 579, 5 86 (Te nn. Crim . App. 199 6), overruled on other
grounds, State v. Williams, 977 S.W .2d 1 01 (T enn . 199 8), this cour t held that th e off ens e of a ssa ult
set forth in Tenn. Code. Ann. § 39-13-101(a)(3) is a lesser included offense of aggravated sexual
battery as set forth in Tenn. Code. Ann. § 39-13-504(a)(4) (1997). However, we acknowledge that
there is an ongoing discussion in this court concerning whether our supreme court’s decision in State
v. Cleveland, 959 S.W .2d 548, 5 54 n. 5 (T enn. 199 7), conc lusively determ ined that as sault is not a
lesser inc luded off ense o f sexua l battery. See State v. Sw indle , No. 01C01-9805-CR-00202, 1999
W L 2544 08, at **1-4 (Tenn . Crim. A pp. at Na shville, April 30, 1 999); State v. Da vis, No. 02C01-9712-
CC-0 0480, 19 99 W L 1479 51, at *5 (T enn. Cr im. Ap p. at Jack son, M arch 19 , 1999). W e initially note
that a determination of lesser included offenses depends upon the language by which the greater
offense is charged in the indictment in any given case and can only, therefore, be made on a case by
case b asis. State v. T rusty, 919 S.W.2d 305, 312 (Tenn. 1996). Moreover, we do not believe that the
supreme court’s decision in Cleveland in any way contradicts this principle. Therefore, for purposes of
this c ase , we c onc lude t hat a ssa ult is a le sse r inclu ded offe nse of ag grav ated sex ual ba ttery.

                                                      18
offenses. On the morning of the offenses, RK was sleeping in a bed with her

mother and the appellant. When she awakened, she discovered that she had been

moved from her mother’s side of the bed to the appellant’s, her underwear had been

pulled down to her knees, and the appellant was touching her stomach. Soon

thereafter, the appellant went into the living room and raped RK’s sister. We agree

with the trial court that the evidence was sufficient to sustain a finding by the jury

that the appellant assaulted RK within the meaning of Tenn. Code. Ann. § 39-13-

101(a)(3).



D.     Jury Instruction on the Appellant’s Flight

              In his next issue, the appellant asserts that the trial court erred when it

instructed the jury on flight. The trial court provided the following instruction to the

jury in accordance with Tennessee Pattern Instruction Crim. No. 42.18:

              The flight of a person accused of a crime is a
              circumstance which, when considered with all the facts of
              the case, may justify an inference of guilt. Flight is the
              voluntary withdrawal of oneself for the purpose of
              evading arrest or prosecution for the crime charged.
              Whether the evidence presented proves beyond a
              reasonable doubt that the defendant fled is a question for
              your determination.

              The law makes no precise distinction as to the manner or
              the method of flight; it may be open, or it may be a
              hurried or concealed departure, or it may be a
              concealment within the jurisdiction. However, it takes
              both a leaving the scene of the difficulty and a
              subsequent hiding out, evasion, or concealment in the
              community, or a leaving of the community for parts
              unknown, to constitute flight.

              If flight is proved, the fact of flight alone does not allow
              you to find that the defendant is guilty of the crime
              alleged. However, since flight by a defendant may be
              caused be a consciousness of guilt, you may consider
              the fact of flight, if the flight is so proven, together with all
              of the other evidence when you decide the guilt or
              innocence of the defendant. On the other hand, an
              entirely innocent person may take flight, and such flight
              may be explained by proof offered, or by the facts and
              circumstances of the case.

                                             19
               Whether there was flight by the defendant, the reasons
               for it, and the weight to be given to it, are questions for
               you to determine.

This pattern jury instruction is a correct statement of the applicable law and has

been previously cited with approval by our court. See, e.g., State v. Kendricks, 947

S.W.2d 875, 885-886 (Tenn. Crim. App. 1996); State v. Sneed, No. 03C01-9702-

CR-00076, 1998 WL 783330, at **7-8 (Tenn. Crim. App. at Knoxville, November 5,

1998), perm. to appeal denied, (Tenn. 1999). Moreover, contrary to the appellant’s

assertions, there is evidence in the record to justify this instruction.



               MK testified at trial that, after raping her, the appellant gathered all of

his clothes, and forced her to assist him in placing the clothes into garbage bags

and carrying them to his car. Before driving away from the scene of the rape, the

appellant indicated to MK that he would never see his sons again. The police

located the appellant the following day in a psychiatric hospital located in another

county. On the basis of this evidence, we find no error in the submission of a flight

instruction to the jury. Moreover, even if an instruction on flight should not have

been given, the State presented overwhelming evidence of the appellant’s guilt.

Any error was harmless. See, e.g., State v. Smith, 893 S.W.2d 908, 918 (Tenn.

1994).



E.       Tenn. R. Evid. 412

               The appellant also argues that, under Tenn. R. Evid. 412, the trial

court erroneously prohibited him from introducing at trial and at the sentencing

hearing evidence concerning past sexual behavior of the victim, MK. We initially

note that the record is devoid of any indication that the appellant submitted either a

written or oral motion prior to or during his trial for the purpose of introducing

evidence of MK’s past sexual behavior. Accordingly, this issue has been waived.


                                             20
Tenn. R. App. P. 36(a). See also Tenn. R. Evid. 412(d)(1) (the accused must file a

written motion to offer such evidence). Cf. State v. Howell, 868 S.W.2d 238, 254

(Tenn. 1993).



                  The appellant did submit a written motion following his trial, on January

15, 1998, asking that the trial court allow the appellant to introduce evidence at the

sentencing hearing that MK had engaged in sexual intercourse with another

individual one week prior to the appellant’s offenses. The appellant argued that,

under Tenn. R. Evid. 412(c)(3), the evidence was relevant to the issue of whether

the victim consented to sexual intercourse with the appellant, thereby reducing his

culpability for the offense.



                  However, it is not entirely clear that Tenn. R. Evid. 412 is applicable in

the context of a sentencing hearing.4 Generally, Tenn. R. Evid. 412 governs the

admission in sexual offense cases of evidence concerning the victim’s past sexual

behavior. See State v. Brooks, No. 02C01-9804-CC-00116, 1998 WL 775649, at *4

n. 4 (Tenn. Crim. App. at Jackson, November 6, 1998), perm. to appeal denied,

(Tenn. 1999)(this court concluded that Rule 412 is applicable in cases involving the

rape of a child). Moreover, with limited exceptions, the Tennessee Rules of

Evidence apply at sentencing hearings. Tenn. Code. Ann. § 40-35-209(b) (1997).

See also State v. Mounger, No. 03C01-9802-CR-00081, 1999 WL 93172, at *5

(Tenn. Crim. App. at Knoxville, February 25, 1999). Yet, by its own terms, Tenn. R.

Evid. 412 only applies to “a criminal trial, preliminary hearing, deposition, or other


         4
          Even if Tenn. R. Evid. 412 is applicable in the context of a sentencing hearing, Rule 412(c)(3)
only pe rm its, for the p urpo se of prov ing co nse nt, the adm issio n of p roof that a victim has p revio usly
engaged in sexual behavior with the defendant. See Cohe n, Shep peard, a nd Paine , Tennessee Law
of Evidence (1995) § 412.4, p. 245. In his brief on appeal, the appellant also argues that the evidence
would ha ve been adm issible purs uant to T enn. R. E vid. 412(c )(4). Und er Rule 4 12(c)(4 )(iii), a
defendant may submit proof of the victim’s sexual behavior with others in order to e stablish c onsen t.
Howe ver, this pro vision only ap plies to proo f of a distinc tive pattern o f behav ior by the victim , not to
proof of isolated ins tances . Id. at 246.

                                                       21
proceeding in which a person is accused [of a sexual offense].” (Emphasis added).

None of these categories appear to encompass a sentencing hearing.5 Accordingly,

the admission of evidence that the victim engaged in sexual activity one week

before the instant offenses was likely governed by Tenn. R. Evid. 404(b).



                  In any event, we doubt both the relevance of the proffered evidence to

the issue of consent and the mitigating weight of any proof of the victim’s consent in

the context of determining the appropriate sentence in this case for the offenses of

rape of a child and incest.6 More importantly, however, the only reference to the

disputed testimony at the sentencing hearing arguably arose when the State asked

that the trial court admit evidence of a prior criminal adjudication against another

minor for the aggravated sexual battery of the victim, MK, and evidence of the

appellant’s knowledge of the prior incident at the time of his offenses. The State

argued that the evidence was relevant to establish MK’s vulnerability pursuant to

Tenn. Code. Ann. § 40-35-114(4) (1996). Defense counsel responded that, if the

trial court admitted the evidence for the purpose asserted by the State, the trial court

should also consider the relevance of the evidence to the issue of MK’s consent to

the instant offenses. The trial court then suggested that the evidence was not

relevant to MK’s consent to the appellant’s conduct because the prior incident may



         5
          We note that the State at a sentencing hearing is no longer “accusing” the defendant of the
commission of an offense. Rather, the defendant’s guilt has been established, whether by a plea of
guilt or by the ve rdict of the ju ry or the cou rt.

         6
          Cons ent is not a d efense to either rap e of a ch ild or incest. State v. Jones, 889 S.W.2d 225,
227 (Tenn. Crim. App. 1994)(consent is not a defense to aggravated rape when the factor elevating
the crim e to aggr avated ra pe is the a ge of the victim); State v. Holder, No. 01C01-9501-CC-00015,
1996 WL 125905, at *3 (Tenn. Crim. App. at Nashville, March 22, 1996)(the holding in Jones is
applicab le in prose cutions fo r rape of a child); State v. Rogers, 703 S.W .2d 1 66, 1 69 (T enn . Crim .
App. 19 85)(co nsent is n ot an issu e in an ince st case ). Cf. State v. Lawson, No. 01C01-9607-CR-
00320 , 1997 W L 6614 83, at *4 (T enn. Cr im. Ap p. at Nas hville, Octob er 24, 19 97), perm. to appeal
denied, (Tenn. 1998)(if the victim of incest knowingly, voluntarily, and with common intent consented
to the conduct of the accused, he or she is an accomplice and the State must corroborate his or her
testimony). Tenn. Code. Ann. § 40-35-113(3) (1997) does provide that mitigating factors include
substantial grounds tending to excuse or justify the appellant’s behavior, though failing to establish a
defe nse . How ever , und er the facts of this cas e, we do no t belie ve tha t the tw elve- year- old vic tim’s
consent would tend to excuse or justify the twenty-eight-year-old appellant’s sexual advances.

                                                       22
not have been consensual. Interestingly, the State asserted in turn that the issue of

whether MK had consented to the prior incident had been resolved at a Rule 412

hearing. Yet, there is no evidence in the record that the trial court conducted a Rule

412 hearing, and the trial court expressed some doubt that the issue of MK’s

consent to the prior sexual activity had ever been resolved. The exchange

concluded with the State withdrawing its request. Defense counsel proffered no

objection to the exclusion of the evidence from the sentencing hearing nor did

defense counsel ever draw the court’s attention to his previously filed Rule 412

motion.



              Even assuming that, as suggested by the prosecutor’s comments, the

trial court had already conducted a Rule 412 hearing on the appellant’s motion and

denied the motion, that proceeding is not included in the record. Accordingly, this

court is precluded from considering this issue. State v. Griffis, 964 S.W.2d 577,

592-593 (Tenn. Crim. App. 1997). On the other hand, if the trial court did not

conduct a Rule 412 hearing, we still decline to find any error. This court has

previously observed that “[t]he filing of a motion with the clerk without presenting it to

the trial court for determination is of no effect. A trial judge will not be placed in error

for failing to consider something that was never presented to him.” State v. Kinner,

701 S.W.2d 224, 227 (Tenn. Crim. App. 1985). Although this court has generally

applied this rule in the context of pre-trial motions, we believe the principle to be

equally applicable in this instance. This issue is without merit.



F.     Excessive Sentence

              The appellant further challenges the trial court’s imposition of the

maximum sentences for his offenses and the aggregate length of his sentences.

The trial court conducted the appellant’s sentencing hearing on March 6, 1998. At


                                            23
the sentencing hearing, the State presented the testimony of two counselors

employed by the Children’s Advocacy Center in Blountville, Tennessee. The

counselors testified that, since the appellant’s offenses, both victims have suffered

from anxiety and depression. Additionally, MK has threatened to commit suicide

and has been diagnosed with post traumatic stress disorder.



             The State additionally relied upon the pre-sentence report, which

reflects that, on July 9, 1996, less than one month before the instant offenses, the

appellant was convicted of assault in the General Sessions Court in Bristol and

sentenced by the court to eleven months and twenty-nine days in the local jail.

Accordingly, the appellant was on probation at the time of the instant offenses. The

appellant was also convicted in 1988 and 1995 of driving under the influence of an

intoxicant. Additionally, during an interview with Counseling and Consultations

Services, Inc., a private, non-profit corporation which provides treatment for sexual

offenders, the appellant admitted previously shoplifting and abusing drugs.



             The pre-sentence report further reflects that the appellant completed

the tenth grade in high school and subsequently obtained his “GED.” Moreover, the

appellant was employed fairly consistently as a manual laborer from 1989 until

1997.



             The clinical director of Counseling and Consultation Services, Inc., Dr.

J. Michael Adler, and a counselor, Teresa Fletcher, evaluated the appellant’s

amenability to rehabilitation and submitted to the trial court a “Risk Assessment.”

The examiners noted in their report that during the assessment the appellant

demonstrated “deviant sexual arousal patterns,” responding to grammar school

females and pre-school and grammar school males. Nevertheless, the appellant


                                          24
denied any problem and also denied his guilt of the instant offenses. The examiners

further recorded:

              Mr. Turner also scored low in his ability to recognize how
              his sexual offending has been hurtful not only to his
              victims and their families but his own family as well. Mr.
              Turner was quite self-focused and self-centered. He
              blamed his victims for his incarceration and was
              degrading of them.

Accordingly, the examiners indicated that the appellant “is considered to be a high

risk to re-offend” and is “an extremely poor candidate for treatment.” However, they

also noted that the appellant did not appear to suffer any “significant pathology” and

possessed the intellectual ability, if not the will, to undergo a “Cognitive Behavioral

Treatment Program.”



              The appellant in turn presented the testimony of his sister, Brenda

Garretson. She testified that, during the appellant’s childhood, their father was

sporadically employed as a manual laborer, providing very little financial security to

his family. Their father was also an alcoholic who physically abused their mother.

Due to his family’s instability, the appellant possessed low self-esteem and began

drinking when he was fourteen or fifteen, becoming an alcoholic by the age of

eighteen. Ms. Garretson also observed that, in addition to his alcoholism, the

appellant had suffered from depression in the past. Nevertheless, Ms. Garretson

asserted that she has never known her brother to sexually abuse anyone. She

further testified that the appellant is a good father to his two sons and that both sons

have suffered from depression since their father’s incarceration. Ms. Garretson

concluded that her brother has been reading the Bible and praying during his

incarceration, is not a danger to the community, and is amenable to rehabilitation.



              The appellant’s mother and his wife additionally testified that the

appellant has become more religious during his incarceration and is amenable to

                                           25
rehabilitation. His wife, who is also the victims’ mother, also testified that the

appellant is a good father to his two sons. She asserted that one of their sons has

been hospitalized twice for depression since the appellant’s incarceration.



              Following presentation of the proof, the trial court found the following

aggravating factors in determining the appellant’s sentence for both rape of a child

and incest: (1) the appellant has a previous history of criminal convictions or

criminal behavior; (5) the appellant treated the victim with exceptional cruelty; (7) the

appellant committed the offense to gratify his desire for pleasure or excitement; (8)

the appellant has a previous history of unwillingness to comply with the conditions of

a sentence involving release in the community; (15) the appellant abused a position

of private trust; (16) the crime was committed under circumstances under which the

potential for bodily injury to the victim was great. Tenn. Code. Ann. § 40-35-114.

With respect to the appellant’s conviction of assault, the trial court similarly found

aggravating circumstances (1), (8), and (15), and also found that the victim of the

offense, RK, was particularly vulnerable. Tenn. Code. Ann. § 40-35-114(4). The

trial court concluded that she was according the enhancement factors applicable to

all of the offenses “the greatest amount of weight.” She further noted, “If there were

any mitigating factors . . . , none of them are sufficient to reduce [the appellant’s]

sentence[s] in any way.”



              In accordance with her findings, the trial court first sentenced the

appellant as a Range I offender to twenty-five years incarceration in the Department

for the offense of rape of a child. Rape of a child is a class A felony. Tenn. Code.

Ann. § 39-13-522(b). Thus, as a Range I offender, the appellant was subject to

incarceration for not less than fifteen nor more than twenty-five years. Tenn. Code.

Ann. § 40-35-112(a)(1) (1997). The appellant is required to serve the entire


                                            26
sentence imposed by the trial court. Tenn. Code. Ann. § 39-13-523(b) (1997). For

the offense of incest, the trial court imposed a sentence of six years incarceration in

the Department. Incest is a class C felony, Tenn. Code. Ann. § 39-15-302(b)

(1997), and the appellant was therefore subject to not less than three nor more than

six years incarceration. Tenn. Code. Ann. § 40-35-112(a)(3). The appellant is

eligible for release after serving thirty percent (30%) of his sentence. Tenn. Code.

Ann. § 40-35-501(c) (1997). Finally, the trial court imposed a sentence of six

months incarceration in the Sullivan County Jail for the offense of assault. Assault

is a class B felony. Tenn. Code. Ann. § 39-13-101(b). Accordingly, the appellant

was subject to a period of incarceration not greater than six months. Tenn. Code.

Ann. § 40-35-111(e)(2). 7



                The appellant contends on appeal that, in sentencing the appellant to

the maximum sentences for his offenses, the trial court failed to consider the

following mitigating factors: (6) the appellant, because of his youth, lacked

substantial judgment in committing the offenses; (8) the appellant was suffering from

a mental condition that significantly reduced his culpability for the offenses; and (13)

the appellant’s successful completion of his GED, his consistent record of

employment, and his lack of prior felony convictions. Tenn. Code. Ann. § 40-35-

113.



                Appellate review of the length, range, or manner of service of a

sentence is de novo. Tenn. Code. Ann. § 40-35-401(d) (1997). In conducting its de

novo review, this court considers the following factors: (1) the evidence, if any,

received at the trial and the sentencing hearing; (2) the pre-sentence report; (3) the


        7
         We note that, because the judgment of conviction in the assault case does not express a
release eligibility percentage, the percentage is zero percent (0%). Tenn. Code. Ann. § 40-35-
302(d)(1997).

                                                27
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 statement by

the defendant in his own behalf; and (7) the potential for rehabilitation or treatment.

Tenn. Code. Ann. § 40-35-102, -103, -210 (1997). See also State v. Ashby, 823

S.W.2d 166, 168 (Tenn. 1991). The burden is upon the appellant to demonstrate

the impropriety of his sentences. Tenn. Code. Ann. § 40-35-401, Sentencing

Commission Comments. Moreover, if the record reveals that the trial court

adequately considered sentencing principles and all relevant facts and

circumstances, this court will accord the trial court’s determinations a presumption of

correctness. Id. At (d); Ashby, 823 S.W.2d at 169.



              The record reflects that the trial court complied with Tenn. Code. Ann.

§ § 40-35-210 and 40-35-302 (1996) in determining the length of the appellant’s

sentences, and the court thoroughly considered sentencing principles and all

relevant facts and circumstances. Although the appellant challenges the trial court’s

assessment of mitigating evidence, correctly applying enhancement and mitigating

factors is not a prerequisite to the presumption of correctness. State v. Ware, No.

02C01-9508-CR-00228, 1997 WL 30346, at *6 n. 2 (Tenn. Crim. App. at Jackson,

January 28, 1997). Therefore, we begin our de novo review presuming that the trial

court imposed appropriate punishment.



              We initially conclude that the trial court properly declined to afford any

significant weight to the mitigating factors asserted by the appellant. See generally

State v. Leggs, 955 S.W.2d 845, 848 (Tenn. Crim. App. 1997)(the weight assigned

to enhancement and mitigating factors is generally left to the trial court’s discretion).

First, although this court has condoned the lack of a prior criminal record as a


                                           28
mitigating factor in appropriate circumstances, see, e.g., State v. Hicks, 868 S.W.2d

729, 731 n. 5 (Tenn. Crim. App. 1993), this court has also observed that every

citizen is expected to refrain from committing any type of crime. State v. Curry, No.

02C01-9711-CR-00452, 1998 WL 376353, at *5 (Tenn. Crim. App. at Jackson),

perm. to appeal denied, (Tenn. 1998). Similarly, every citizen is expected to have a

stable work history if the economy permits the citizen to work, the citizen is not

disabled, or the citizen is not independently wealthy. Id. Moreover, in the context of

this case, the appellant’s successful completion of his GED in no way mitigated the

appellant’s rape and assault of his step-daughters.



              Second, in determining whether the appellant lacked substantial

judgment in committing the instant offenses pursuant to Tenn. Code. Ann. § 40-35-

113 (6), the sentencing court was required to consider the appellant’s age,

education, maturity, experience, mental capacity or development, and other

pertinent circumstances which tend to demonstrate the appellant’s ability or inability

to appreciate the nature of his conduct. State v. Adams, 864 S.W.2d 31, 33 (Tenn.

1993). In this case, the appellant was twenty-eight years old at the time of his

offenses. As previously noted, although the appellant had not completed high

school, he had successfully obtained a GED. Moreover, examiners at Counseling

and Consultation Services, Inc., reported that the appellant was not suffering from

any significant pathology and was intellectually capable of completing a treatment

program. Furthermore, while raping MK, the appellant demonstrated his

appreciation for the nature of his conduct by threatening to kill everyone in the trailer

if MK awakened the other occupants and also by informing MK, following the

offenses, that he would never see his sons again. In short, the record is devoid of

credible evidence that the appellant lacked substantial judgment in the commission

of these offenses. We also agree with the trial court that the appellant’s self-serving


                                           29
statements are patently insufficient to establish that he was suffering from any

mental condition sufficient to reduce his culpability for the instant offenses. Tenn.

Code. Ann. § 40-35-113 (8). Finally, our de novo review of the record has

uncovered no other mitigating factors of significant weight.



              Although not challenged by the appellant, this court must also review

the trial court’s application of enhancement factors. We conclude that the trial court

properly applied enhancement factors (1), (5), (7), (15), and (16) in sentencing the

appellant for rape of a child and incest. Tenn. Code. Ann. § 40-35-114.



              First, the record does reflect the appellant’s previous history of criminal

convictions or behavior, albeit his record does not include felony convictions. Tenn.

Code. Ann. § 40-35-114(1).



              Second, although a close question, we conclude that, under the facts

of this case, the appellant treated MK with exceptional cruelty. Tenn. Code. Ann. §

40-35-114(5). In order to justify application of this enhancement factor, the facts of

the case must “‘demonstrate a culpability distinct from and appreciably greater than

that incident to’ the crime . . . .” State v. Poole, 945 S.W.2d 93, 98 (Tenn. 1997).

This court has previously observed that this enhancement factor is generally applied

in cases involving abuse or torture. State v. Williams, 920 S.W.2d 247, 259 (Tenn.

Crim. App. 1995). However, evidence of “mental cruelty” will support a finding of

exceptional cruelty. State v. Herron, No. 02C01-9407-CR-00144, 1995 WL 120230,

at *4 (Tenn. Crim. App. at Jackson, March 22, 1995). In committing the offenses of

rape of a child and incest, the appellant tried to gag the victim with a bandana, then

offered the her twenty-five dollars to engage in sexual intercourse with him. When

MK refused, the appellant covered her mouth with a towel, ripped off her underwear


                                           30
and raped her, holding her down on the couch while she struggled. The appellant

informed MK that, if she screamed, he would kill everyone in the house. Finally, he

attempted to place responsibility for his actions on MK. In summation, the

appellant’s degrading offer of money in return for MK’s cooperation, his use of force

in raping MK, and his verbal threat to MK and her family were neither essential

elements of nor inherent in the charged offenses and demonstrated the requisite,

additional culpability.



                 Third, the record clearly supports the trial court’s conclusion that the

appellant committed the rape and incest in order to gratify his desire for pleasure or

excitement. Tenn. Code. Ann. § 40-35-114(7). The appellant stated to the police

that he had been watching pornographic movies for several weeks prior to the

offense, that he rubbed MK’s bottom immediately prior to the offense, that he

attempted to kiss MK during his commission of the offense, that he rubbed her leg

during the offense, and that she “was wet between her legs when I felt of her in her

private area . . . [and] moaned while I was inside of her.” MK also testified that, prior

to the offense, the appellant told her that she was “pretty” and “a bunch of other

stuff.”



                 Fourth, as MK’s step-father, the appellant clearly abused a position of

private trust.8 Tenn. Code. Ann. § 40-35-114(15).



                 Fifth, we agree that the crimes were committed under circumstances in

which the potential for bodily injury to the victim was great. Tenn. Code. Ann. § 40-

35-114(16). The appellant held MK down while she struggled, and he covered her

          8
          W ith respect to the application of this factor to the appellant’s sentence for incest, this court
has previously held that enhancement factor (15) is neither inherent in nor an essential element of
incest. See State v. Miller, No. 03C01-9502-CR-00037, 1997 WL 593811, at *3 (Tenn. Crim. App. at
Knoxv ille, Septem ber 25, 1 997), perm. to appeal denied, (Tenn. 1998).

                                                     31
mouth with a towel. The appellant also threatened to kill everyone in the house if

MK did not cooperate, including the victim. See, e.g., State v. Patton, No. 01C01-

9606-CR-00241, 1997 WL 742514, at *6 (Tenn. Crim. App. at Nashville, November

25, 1997), perm. to appeal denied, (Tenn. 1998).



              Although not required to make specific findings of fact on the record in

sentencing the appellant for misdemeanor assault, State v. Troutman, 979 S.W.2d

271, 274 (Tenn. 1998), the trial court found and applied enhancement factors (1),

(4), (8), and (15) to the appellant’s sentence for assault. Tenn. Code. Ann. § 40-35-

114. For the reasons stated above, the record supports the application of

enhancement factors (1) and (15). Tenn. Code. Ann. § 40-35-114. Moreover, we

conclude that the trial court properly applied Tenn. Code. Ann. § 40-35-114(4),

concerning the victim’s vulnerability. A victim is particularly vulnerable within the

meaning of this statutory provision when, due to her natural physical or mental

limitations, the victim lacks the ability to resist the commission of the crime, the

victim’s ability to summon assistance is impaired, or the victim does not possess the

capacity to testify against the perpetrator of the crime. Poole, 945 S.W.2d at 96-97;

State v. Adams, 864 S.W.2d 31, 35 (Tenn. 1993). The victim’s physical or mental

limitation may be temporary and self-induced. See, e.g., State v. Robinson, 971

S.W.2d 30, 46 (Tenn. Crim. App. 1997)(the victim was particularly vulnerable due to

his degree of intoxication). Moreover, in State v. Snyder, No. 03C01-9403-CR-

00101, 1995 WL 687581, at *8 (Tenn. Crim. App. at Knoxville, November 21, 1995),

we noted that a sleeping, seven-year-old was particularly vulnerable to the offense

of arson. Similarly, in this case, a sleeping ten-year-old was particularly vulnerable

to the appellant’s assault. The record justifies the application of enhancement factor

(4).




                                           32
              With respect to all of the appellant’s offenses, we note that the trial

court improperly applied enhancement factor (8), concerning the appellant’s

previous history of unwillingness to comply with the conditions of a sentence

involving release in the community. Tenn. Code. Ann. § 40-35-114. The record

does not reflect any such previous history other than the appellant’s commission of

the present offenses while on probation. We have held that application of factor (8)

under these circumstances is inappropriate. State v. Hayes, 899 S.W.2d 175, 185-

186 (Tenn. Crim. App. 1995); State v. Davis, No. 03C01-9712-CR-00543, 1999 WL

135054, at *10 (Tenn. Crim. App. at Knoxville, March 15, 1999). Nevertheless, the

remaining enhancement factors and general principles of sentencing, including the

appellant’s amenability to rehabilitation, amply support the sentences imposed.



              Moreover, we conclude that the trial court correctly imposed

consecutive sentencing. The appellant does not contest on appeal the application

of Tenn. Code. Ann. § 40-35-115(b)(5) (1997)(the appellant’s conviction of two or

more statutory offenses involving sexual abuse of a minor) and Tenn. Code. Ann. §

40-35-115(b)(6)(the appellant committed the instant offenses while on probation).

However, we do acknowledge this court’s previous observation that, in enacting

section (b)(5), the legislature intended that this section should generally be reserved

for cases involving ongoing sexual abuse. State v. Ware, No. 03C01-9705-CR-

00164, 1999 WL 233592, at *20 (Tenn. Crim. App. at Knoxville, April 20, 1999).

Nevertheless, the appellant was indisputably on probation when he committed these

offenses. Tenn. Code. Ann. § 40-35-115(b)(6). When a defendant falls within one

of the statutory classifications of eligibility for consecutive sentencing, the only

remaining considerations are whether (1) the sentences are necessary in order to

protect the public from further misconduct by the defendant and whether (2) “the

terms are reasonably related to the severity of the offenses.” State v. Wilkerson,


                                            33
905 S.W.2d 933, 938 (Tenn. 1995). But see State v. Kelly, No. 01C01-9610-CC-

0048, 1998 WL 712268, at *14 (Tenn. Crim. App. at Nashville, October 13, 1998)(it

is unsettled whether Wilkerson applies to all seven of the statutory categories for

consecutive sentencing or only the “dangerous offender” category). The appellant’s

aggregate sentence of thirty-one years is consistent with these principles. We affirm

the trial court’s sentencing determinations.



G.     Cruel and Unusual Punishment

              The appellant’s final complaint is that the effective length of his

sentence, thirty-one years incarceration in the Department of Correction, constitutes

cruel and unusual punishment, violating the Eighth Amendment to the United States

Constitution and Article I, Section 16 of the Tennessee Constitution. He asserts that

the sentence is particularly cruel and unusual as a person convicted of raping a child

must “serve the entire sentence imposed by the court undiminished by any sentence

reduction credits such person may be eligible for or earn.” Tenn. Code. Ann. § 39-

13-523(b). Moreover, a child rapist is eligible for neither parole nor an executive

pardon. Id. at (c), (d). We conclude that the appellant’s aggregate sentence of

thirty-one years incarceration for rape of a child, incest, and assault is consistent

with both federal and state constitutional mandates.



              “The protection against cruel and unusual punishments afforded by the

Eight Amendment [to the United States Constitution] has defied precise delineation.”

Joseph G. Cook, Constitutional Rights of the Accused § 26:1, at 26-5 (3d ed. 1996).

In particular, the United States Supreme Court case of Harmelin v. Michegan, 501

U.S. 997, 111 S.Ct. 2703 (1991), reflects disagreement within the United States

Supreme Court concerning the extent to which the Eighth Amendment guarantees

“proportionality” in noncapital cases. See also State v. Harris, 844 S.W.2d 601, 602


                                           34
(Tenn. 1992)(the precise contours of the federal proportionality guarantee are

unclear). Nevertheless, in State v. Black, 815 S.W.2d 166, 189 (Tenn. 1991), a

capital case, the Tennessee Supreme Court articulated the exact standards to be

used in determining whether a legislatively approved punishment is cruel and

unusual under the Tennessee Constitution, noting that the adopted standards

generally comport with federal constitutional standards. The court held that a

reviewing court must address three separate inquiries: (1) Does the punishment for

the crime conform with contemporary standards of decency? (2) Is the punishment

grossly disproportionate to the offense? (3) Does the punishment go beyond what is

necessary to accomplish any legitimate penological objective? Id. Moreover, in

Harris, 844 S.W.2d at 602-603 (citing Harmelin, 501 U.S. at 997-1009, 2702-

2709(Kennedy, Justice, concurring in part), the court, noting that Article I, Section 16

of the Tennessee Constitution is subject to a more expansive interpretation than the

Eighth Amendment to the federal constitution, held that the proportionality inquiry is

necessary even in noncapital cases.



              In addressing the appellant’s challenge to his sentences, we initially

note our prior holding that the statutory requirement, that a child rapist serve the

entire sentence imposed by the court, does not constitute cruel and unusual

punishment. State v. Holt, No. 03C01-9408-CR-00275, 1995 WL 491025, at *1

(Tenn. Crim. App. at Knoxville, August 17, 1995). Moreover, we can summarily

dispense in this case with the appellant’s assertions that the authorized punishment

for his offenses either offends contemporary standards of decency or exceeds what

is necessary to accomplish a legitimate penological objective. Aside from first

degree murder, the rape of a child is the most heinous crime a person can commit in

our society. Additionally, this court has recently observed that criminal statutes

prohibiting incestuous relationships reflect society’s belief that incest destabilizes the


                                           35
family unit, threatening our society’s ability to function in an orderly manner. Smith

v. State, No. 01C01-9811-CR-00438, 1999 WL 160992, at *6 (Tenn. Crim. App. at

Nashville), perm. to appeal denied, (Tenn. 1999). Thus, the authorized punishment

for the appellant’s offenses is reasonably related to the State’s legitimate interest in

deterring the rape of children and in prohibiting sexual activity between those related

within the proscribed degrees of kinship. Id. at *6; State v. Holder, No. 01C01-9501-

CC-00015, 1996 WL 125905, at *4 (Tenn. Crim. App. at Nashville, March 22, 1996).



                Moreover, with respect to the appellant’s proportionality challenge, our

supreme court in Harris, 844 S.W.2d at 603, set forth the applicable analysis:

                [T]he sentence is initially compared with the crime
                committed. Unless this threshold comparison leads to an
                inference of gross disproportionality, the inquiry ends - -
                the sentence is constitutional. In those rare cases where
                this inference does arise, the analysis proceeds by
                comparing (1) the sentences imposed on other criminals
                in the same jurisdiction, and (2) the sentences imposed
                for commission of the same crime in other jurisdictions.


We conclude that there is no inference of gross disproportionality under the facts of

this case. Accordingly, the appellant’s argument is without merit.9



                                          III. Conclusion

                For the foregoing reasons, we affirm the judgment of the trial court.




                                                                  Norma McGee Ogle, Judge

CONCUR:



        9
          The appellant cites W orkm an v. Co mm onwea lth, 429 S.W.2d 374 (Ky. 1968), in support of
the proposition that his punishment is cruel and unusual. However, the Supreme Court of Kentucky
was addressing a sentence of life without possibility of parole imposed upon a juvenile offender for the
offens e of rape . Id. at 377. The Kentucky court specifically upheld the constitutionality of imposing
such a senten ce upo n an adu lt offende r. Id. See also Land v. C omm onwea lth, 986 S.W.2d 440, 441
(Ky. 1999).

                                                  36
Jerry L. Smith, Judge



Joe G. Riley, Judge




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