                                                                                         06/13/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs May 30, 2019

          STATE OF TENNESSEE v. WAYNE LEONARD YELTON

                Appeal from the Criminal Court for Sullivan County
                    No. S65,419 James F. Goodwin, Jr., Judge
                     ___________________________________

                           No. E2018-01436-CCA-R3-CD
                       ___________________________________


The Defendant, Wayne Leonard Yelton, appeals his convictions of rape of a child, three
counts of aggravated sexual battery, incest, and attempted incest and his effective
sentence of forty-one years. On appeal, the Defendant asserts that the evidence is
insufficient to support his convictions and that his sentence is excessive. Upon reviewing
the record and the applicable law, we affirm the trial court’s judgments. However, we
remand to the trial court for entry of corrected judgments to reflect that the trial court
imposed an eleven-year sentence for each aggravated sexual battery conviction in counts
three and four and a three-year sentence for the attempted incest conviction in count five.

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

JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER and ROBERT L. HOLLOWAY, JR., JJ., joined.

Andrew J. Gibbons, District Public Defender, and Lesley A. Tiller, Assistant Public
Defender (on appeal), and Kyle Vaughan, Kingsport, Tennessee (at trial), for the
appellant, Wayne Leonard Yelton.

Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant
Attorney General; Barry P. Staubus, District Attorney General; and William Harper and
Emily Smith, Assistant District Attorneys General, for the appellee, State of Tennessee.


                                       OPINION

                 FACTUAL AND PROCEDURAL BACKGROUND
         The Defendant was indicted on two counts each of rape of a child, aggravated
sexual battery, and incest as a result of sexually abusing his eight-year-old granddaughter
on two separate occasions in 2015. The victim, who was ten years old at the time of the
trial, testified that when she was eight years old, she visited her grandparents often and
spent the night at their home. On July 29, 2015, she and the Defendant were in his
bedroom watching television when the Defendant closed the bedroom door and instructed
the victim to remove her clothes. The victim removed all of her clothing, including her
underwear. The victim testified that the Defendant touched her breasts and buttocks. She
stated that the Defendant touched her “biscuit” and put his finger inside her and that “it
kind of tickled.”

       The victim said the Defendant was acting “different” and “had a different look on
his face.” He warned the victim that if she told anyone, “something bad” would happen
to her mother. The Defendant’s wife, who was also the victim’s grandmother, walked
into the room and caught the Defendant. She instructed the victim to put on her clothes
and go into the living room. The Defendant’s wife closed the bedroom door, and the
victim could hear her and the Defendant talking but did not understand them.

       The victim testified to another instance of sexual abuse by the Defendant that
occurred “[m]aybe a month or so” before July 2015 before she was out of school for the
summer. She stated that while she was in the Defendant’s bedroom, he touched her on
the “same spots.” She did not recall whether the Defendant put his hand inside her but
said he “moved his finger around.”

        On cross-examination, the victim agreed that the first instance occurred before
school let out for the summer, and she believed it may have occurred in May or June of
2015. She agreed that when she said the Defendant moved his finger around, she meant
that his finger was inside of her. She first reported the abuse to her mother on July 29th
while at the Defendant’s home.

       After the Defendant’s wife found the victim and the Defendant in the bedroom on
July 29th, the Defendant grabbed a gun and threatened to kill himself. Officer Roger
Antone of the Sullivan County Sheriff’s Office went to the Defendant’s apartment in
response to a call regarding an attempted suicide. Another officer secured the
Defendant’s gun prior to Officer Antone’s arrival. Officer Antone testified that when he
asked the Defendant why he wanted to commit suicide, the Defendant replied that “he did
a bad thing, [that] he will not be forgiven[,] and that he should have shot [himself] when
he had the chance.” Officer Antone attempted to speak to the Defendant further, but
“communication stopped at that point.” Detective Tracy Haraz with the Sullivan County
Sheriff’s Office spoke to the Defendant’s wife, who refused to cooperate or give a
statement.
                                           -2-
       The Defendant was transported to a hospital for an evaluation. Officer Antone
stated that the victim was present at the apartment and that a child abuse investigation
commenced once her parents arrived. On cross-examination, Officer Antone testified
that the Defendant never said he was “accused of doing a bad thing” and never stated
what the “bad thing” was.

       The victim’s mother testified at trial and acknowledged that she had a prior
misdemeanor conviction for the unauthorized use of a motor vehicle. She stated that in
July 2015, the victim often spent time with the Defendant and his wife at their apartment,
and the victim had a good relationship with the Defendant. The victim was often there
with her brothers, but her brothers did not accompany her on July 29th.

        The victim’s mother testified that on July 29th, she and her husband went to the
Defendant’s apartment after she was notified of the Defendant’s threat of suicide. Police
officers were there when she arrived. She walked into the apartment where she saw the
victim crying while with the Defendant’s wife. The victim’s mother asked the
Defendant’s wife what had occurred. The victim started to speak to her mother but
stopped, and the Defendant’s wife instructed the victim’s mother to take the victim into
the bedroom. Once they were in the bedroom, the victim told her mother information
that led her mother to speak to the police. The victim’s mother told the Defendant’s wife
what the victim had stated, and the Defendant’s wife became “upset.” Prior to July 29th,
the victim’s mother was unaware of any abuse against the victim by the Defendant. On
cross-examination, the victim’s mother acknowledged “issues” between her husband and
the Defendant and stated that the source of the “issues” was financial.

       Ms. Karen Fleenor, a licensed clinical social worker at Wellmont Rescue Pavillion
in Bristol, Virginia, was assigned to the Defendant’s case on July 31st following his
threat of suicide. The Defendant admitted to Ms. Fleenor that he had touched the victim
and fondled her breasts. He stated that he and the victim were lying on a bed and
watching television when the victim disrobed and the contact occurred. Ms. Fleenor
reported the Defendant’s statements to social services by calling the child abuse hotline.
She stated that she had a mandatory duty to report child abuse and that she advised the
Defendant that she would be reporting it. On cross-examination, Ms. Fleenor testified
that she did not recall the Defendant telling her that he had been “accused” of fondling
the victim’s breasts. She stated that the Defendant reported that the sexual contact had
occurred and that he was distressed about it.

       The Defendant’s wife testified for the defense and stated that she was the victim’s
grandmother and had been married to the Defendant for forty-six years. She stated that
on the night of July 29th, she was in the living room watching television and would have
been able to hear anything that occurred in the bedroom. She said she walked into the
                                          -3-
bedroom where she saw the Defendant standing by a dresser and a chair and the victim
lying on the bed and watching television. The Defendant’s wife said the victim was
laughing and had her clothes “draped over her.” The Defendant’s wife instructed the
victim to go into the bathroom and put on her clothes, and the victim complied. The
Defendant’s wife maintained that she did not see or hear anything supporting the
allegations against the Defendant.

       The Defendant’s wife testified that she had caught the victim being untruthful on
occasion. The Defendant’s wife recalled that the Defendant had supported the victim’s
parents financially, which resulted in arguments and tension between them.

       On cross-examination, the Defendant’s wife testified that she did not “necessarily”
tell Detective Haraz on July 29th that she wanted to sit down as a family to try to resolve
the matter. She denied directing the victim’s mother to the bedroom to speak to the
victim. The Defendant’s wife acknowledged telling officers that when she tried to open
the bedroom door to see if the victim wanted ice cream, the door was locked. She
maintained at trial that the door was always locked and said she told this to the officers.
She denied telling the officers that when she unlocked the door and entered the bedroom,
she saw the victim naked and lying on her back and the Defendant kissing the victim’s
cheek. The Defendant’s wife maintained that the victim had her clothes lying across her
“like a blanket” and that the Defendant kissed the victim’s cheek and told her to put on
her clothes. The Defendant’s wife stated that she told one of her daughters to sit with the
victim while the Defendant’s wife spoke to the Defendant and called the victim’s parents.
Her daughter walked into the bedroom and stated that the Defendant had a gun pointed at
his head. Her daughter called a neighbor, who was an off-duty officer, and the officer
calmed the Defendant, secured the gun, and called the police.

       On redirect examination, the Defendant’s wife testified that when she opened the
bedroom door, the Defendant was standing away from the bed, and he walked over to the
victim, kissed her on the cheek, and told her that everything was okay and to go with his
wife.

       The Defendant testified that on July 29th, he took Oxycodone because he had
slipped and twisted his ankle earlier in the day. He stated that while he was in the
bedroom, the victim came in and began watching television. He denied closing the
bedroom door and stated that he was “pretty sure” that the victim did so because he was
“incapacitated slightly.” He denied inappropriately touching the victim but admitted that
he did “slip up and kiss her on the left cheek.”

       On cross-examination, the Defendant testified that he was “foggy” and “half
[a]sleep” while in his bedroom. He stated that the victim entered the bedroom and
                                           -4-
watched television while he sat in a chair with his eyes closed. He said that upon hearing
a noise, he opened his eyes to see the victim shutting the door. He stated that he heard
another noise, opened his eyes, and saw that the victim was naked. He testified that as
his wife was entering the room, he walked over to the bed and kissed the victim’s cheek.
He stated that as the victim and his wife were talking in another room, he retrieved his
gun, intending to shoot himself.

       The Defendant testified that he told the officer that he was “accused” of “a bad
thing” and maintained that the “bad thing” to which he was referring was his threat to
commit suicide. He stated that he also told Ms. Fleenor that he was “accused” of
fondling the victim and that he provided details based upon the information that he
learned during the investigation.

       In rebuttal, the State recalled Officer Antone, who testified that on July 29th, the
Defendant’s wife told him that at around 9:30 p.m., the Defendant and the victim went
into the master bedroom to watch television. At approximately 10:00 p.m., she went to
the bedroom to see if the victim wanted ice cream and discovered that the door was
locked. The Defendant’s wife stated that after gaining entry, she saw the victim lying
naked on the bed with the Defendant lying next to her and mentioned that the Defendant
kissed the victim’s cheek. When she asked the Defendant what he was doing, the
Defendant looked at her “with a blank stare,” and his wife called the victim to her. The
Defendant then grabbed a rifle and threatened suicide, and his wife ran across the hall to
obtain help from an off-duty officer.

       The State also recalled Detective Haraz, who testified that although the
Defendant’s wife refused to provide a written statement, she told him that she went to the
bedroom where the Defendant and the victim were watching television to ask if the
victim wanted ice cream. The Defendant’s wife stated that the bedroom door was locked,
which was unusual, and that the Defendant locked the door only when he was changing
his clothes or using the bathroom. Once the Defendant’s wife gained entry, she saw the
victim was naked and lying on the bed. The Defendant’s wife did not state that the
victim’s clothes were draped over her. She told the detective that she did not understand
why the police were called because they could resolve the matter as a family.

       The State elected to rely upon the two instances of contact with the victim’s
vagina for the two counts of child rape and the two instances of contact with the victim’s
breasts for the two counts of aggravated sexual battery. With regard to the first episode
of sexual abuse, the jury convicted the Defendant of one count of aggravated sexual
battery as a lesser included offense of rape of a child, one count of aggravated sexual
battery as charged, and one count of attempted incest as a lesser included offense of
incest. With regarding to the second episode of sexual abuse, the jury convicted the
                                           -5-
Defendant of rape of a child, aggravated sexual battery, and incest as charged in the
indictment.

       Neither the State nor the Defendant presented any evidence at the sentencing
hearing. The State relied upon its previously filed notice regarding the enhancement
factors that it sought to be applied, the presentence report, and the sex offender risk
assessment. Defense counsel stated that he did not object to any information in the
presentence report or the assessment, and he did not argue for the application of any
mitigating factors.

       Both the presentence report and the assessment included the victim’s statements
during her interview at the Child Advocacy Center. The victim reported that the
Defendant took her clothes off, pushed her onto the bed, and got on top of her. She stated
that the Defendant touched her vagina and breasts, inserted his finger inside her vagina
and moved it around, and put his mouth on her breasts. She also stated that the sexual
abuse occurred on two occasions and that the Defendant had a “weird look” on his face
when abusing her. She said that approximately two months prior, the Defendant pulled
down his pants and told the victim to look at his penis, and the victim described the
Defendant’s penis during the interview. The Defendant also kissed the victim on the lips.
According to the assessment, the victim stated during the interview that the Defendant
told her on both occasions of sexual abuse that if she told anyone, “bad things would
happen to her.”

       The Defendant declined to provide a written statement for purposes of the
presentence report and continued to maintain his innocence. According to the
presentence report, the Defendant was sixty-eight years old and did not have a prior
criminal record. He had an associate’s degree in business, was retired after being
employed with United Telephone for approximately thirty-nine years, and had served in
the United States Navy.

       The trial court applied the following enhancement factors to the Defendant’s
convictions: “(7) [t]he offense involved a victim and was committed to gratify the
defendant’s desire for pleasure or excitement” and “(14) [t]he defendant abused a
position of public or private trust.” T.C.A. § 40-35-114(7), (14). The trial court stated
that while no mitigating factors were offered by the defense, it considered the
Defendant’s lack of a criminal record and his military service as mitigating factors. See
T.C.A. § 40-35-113(13) (identifying as a mitigating factor “[a]ny other factor consistent
with the purposes of this chapter”).

       The trial court sentenced the Defendant as a Range II offender for the rape of a
child conviction and as a Range I offender for the remaining convictions. See T.C.A. §
                                          -6-
39-13-522(b)(2)(A) (requiring that a defendant convicted of rape of a child be punished,
at a minimum, as a Range II offender). The trial court imposed sentences of thirty years
for rape of a child, eleven years for each aggravated sexual battery conviction, three years
for attempted incest, and five years for incest. The trial court merged the convictions for
rape of a child and aggravated sexual battery from the July 2015 episode, as well as the
two aggravated sexual battery convictions from the initial episode. The trial court
ordered that the Defendant serve his thirty-year sentence for rape of a child and his
eleven-year sentence for aggravated sexual battery consecutively to each other and
concurrently with his remaining convictions, for an effective sentence of forty-one years.
In imposing partial consecutive sentences, the trial court found that the Defendant “has
been convicted of two or more statutory offenses involving sex[ual] abuse of a minor
with consideration of the aggravated circumstances arising from the relationship between
the [D]efendant and the victim.”

        The Defendant filed a motion for new trial, which the trial court denied. The
Defendant appeals, arguing that the evidence is insufficient to support his convictions and
that his sentence is excessive.

                                       ANALYSIS

                                      I. Sufficiency

        When a defendant challenges the sufficiency of the evidence, the relevant question
for this court is “whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). On appeal,
“‘the State is entitled to the strongest legitimate view of the evidence and to all
reasonable and legitimate inferences that may be drawn therefrom.’” State v. Elkins, 102
S.W.3d 578, 581 (Tenn. 2003) (quoting State v. Smith, 24 S.W.3d 274, 279 (Tenn.
2000)). Therefore, this court will not reweigh or reevaluate the evidence. State v.
Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Instead, it is the trier of fact,
not this court, who resolves any questions concerning “the credibility of witnesses, the
weight and value to be given the evidence, as well as all factual issues raised by the
evidence.” 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. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). The burden is
then shifted to the defendant on appeal to demonstrate why the evidence is insufficient to
support the conviction. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). This court
applies the same standard of review regardless of whether the conviction was predicated
on direct or circumstantial evidence. State v. Dorantes, 331 S.W.3d 370, 381 (Tenn.
                                           -7-
2011). “Circumstantial evidence alone is sufficient to support a conviction, and the
circumstantial evidence need not exclude every reasonable hypothesis except that of
guilt.” State v. Wagner, 382 S.W.3d 289, 297 (Tenn. 2012).

        Rape of a child is “the unlawful sexual penetration of a victim by a defendant or
the defendant by a victim, if the victim is more than three (3) years of age but less than
thirteen (13) years of age.” T.C.A. § 39-13-522(a). “Sexual penetration” includes
“sexual intercourse, cunnilingus, fellatio, anal intercourse, or any intrusion, however
slight, of any part of a person’s body or of any object into the genital or anal openings of
the victim’s, the defendant’s, or any other person’s body, but emission of semen is not
required.” T.C.A. § 39-13-501(7). As it relates to this case, a defendant who engages in
sexual penetration with a victim, knowing the victim to be the defendant’s grandchild
commits the offense of incest. T.C.A. § 39-15-302(a). A person attempts to commit a
criminal offense who, while acting with the culpability otherwise required for the
offense:

       (1) Intentionally engages in action or causes a result that would constitute
       an offense, if the circumstances surrounding the conduct were as the person
       believes them to be;

       (2) Acts with intent to cause a result that is an element of the offense, and
       believes the conduct will cause the result without further conduct on the
       person’s part; or

       (3) Acts with intent to complete a course of action or cause a result that
       would constitute the offense, under the circumstances surrounding the
       conduct as the person believes them to be, and the conduct constitutes a
       substantial step toward the commission of the offense.

T.C.A. § 39-12-101(a)(1)-(3).

        Aggravated sexual battery, as it relates to the Defendant’s convictions, is
“unlawful sexual contact with a victim by the defendant” when the victim is less than
thirteen years old. T.C.A. § 39-13-504(a)(4). “Sexual contact” is defined as “the
intentional touching of the victim’s ... intimate parts, or the intentional touching of the
clothing covering the immediate area of the victim’s ... intimate parts, if that intentional
touching can be reasonably construed as being for the purpose of sexual arousal or
gratification.” T.C.A. § 39-13-501(6). The breast is considered an “intimate part.”
T.C.A. § 39-13-501(2). Whether the contact is for the purpose of sexual arousal or
gratification is a question of fact for the jury to determine. See State v. Creed Gettys

                                           -8-
Welch, No. M2016-01335-CCA-R3-CD, 2019 WL 495117, at *5 (Tenn. Crim. App. Feb.
8, 2019), no perm. app. filed (citing cases).

       The evidence, when viewed in a light most favorable to the State, established that
the Defendant sexually abused his eight-year-old granddaughter on two separate
occasions while in his bedroom. On both occasions, he had the victim disrobe and
touched her breasts, buttocks, and vagina. On the second occasion, he digitally
penetrated the victim’s vagina. He told the victim that “something bad” would happen to
her mother if she told anyone. Following the second instance of abuse in July 2015, the
Defendant’s wife walked into the bedroom and saw the victim naked, and the Defendant
threatened to commit suicide. The Defendant admitted to Officer Antone that he did a
“bad thing,” and he admitted to Ms. Fleenor that he sexually abused the victim.

       In challenging his convictions for aggravated sexual battery, the Defendant
maintains that the evidence fails to establish that the touching was for the purpose of
sexual arousal or gratification. The aggravated sexual battery statute “does not require
that the appellant become sexually aroused or gratified by the sexual contact. The statute
merely requires touching that can be ‘reasonably construed as being for the purpose of
sexual arousal or gratification.’” State v. Mahlon Johnson, No. W2011-01786-CCA-R3-
CD, 2013 WL 501779, at *12 (Tenn. Crim. App. Feb. 7, 2013) (quoting State v. Roy
Chisenhall, No. M2003-00956-CCA-R3-CD, 2004 WL 1217118, at *3 (Tenn. Crim.
App. June 3, 2004)). The jury was well within its authority in concluding that the
Defendant’s touching of the victim’s naked breasts and vagina were for the purpose of
sexual arousal or gratification.

        The Defendant also challenges the credibility of the testimony of the victim and
her mother and the consistency of the victim’s statements. However, these challenges
relate to the credibility of witnesses, the weight and value to be given the evidence, and
factual issues, all of which are resolved by the jury. Bland, 958 S.W.2d at 659. Although
the Defendant denied the allegations at trial, it was within the province of the jury to
accredit the victim’s testimony over the Defendant’s testimony. We conclude that the
evidence is sufficient to support the convictions.

                                     II. Sentencing

       The Defendant contends that the trial court erred in its application of enhancement
and mitigating factors and in imposing partial consecutive sentences. The State asserts
that the trial court properly exercised its discretion in sentencing the Defendant. We
agree with the State.



                                          -9-
                            A. Enhancement and Mitigation

        A trial court’s sentencing decisions are generally reviewed for abuse of discretion,
with a presumption of reasonableness granted to within-range sentences that reflect a
proper application of the purposes and principles of sentencing. State v. Bise, 380
S.W.3d 682, 707 (Tenn. 2012). A trial court abuses its discretion when it applies an
incorrect legal standard, reaches an illogical conclusion, bases its decision on a clearly
erroneous assessment of the evidence, or employs reasoning that causes an injustice to
the party complaining. State v. Herron, 461 S.W.3d 890, 904 (Tenn. 2015). The court
will uphold the sentence “so long as it is within the appropriate range and the record
demonstrates that the sentence is otherwise in compliance with the purposes and
principles listed by statute.” Bise, 380 S.W.3d at 709-10. Even if the trial court
“recognizes and enunciates several applicable mitigating factors, it does not abuse its
discretion if it does not reduce the sentence from the maximum on the basis of those
factors.” State v. Carter, 254 S.W.3d 335, 345 (Tenn. 2008). The trial court is “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 706. Further, “a trial court’s
misapplication of an enhancement or mitigating factor does not invalidate the sentence
imposed unless the trial court wholly departed from the 1989 Act, as amended in 2005.”
Id. A sentence imposed by the trial court that is within the appropriate range should be
upheld “[s]o long as there are other reasons consistent with the purposes and principles of
sentencing, as provided by statute.” Id. The appealing party bears the burden of proving
that the sentence was improper. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

       In determining the sentence, the trial court must consider: (1) any evidence
received at the trial and the sentencing hearing; (2) the presentence report; (3) the
principles of sentencing and arguments as to sentencing alternatives; (4) the nature and
characteristics of the criminal conduct involved; (5) the evidence and information offered
by the parties on the applicable mitigating and enhancement factors; (6) any statistical
information provided by the administrative office of the courts as to sentencing practices
for similar offenses in Tennessee; (7) any statement the defendant wishes to make in the
defendant’s own behalf about sentencing; and (8) the result of the validated risk and
needs assessment contained in the presentence report. T.C.A. § 40-35-210(b) (Supp.
2017). “The sentence imposed should be the least severe measure necessary to achieve
the purposes for which the sentence is imposed,” and “[t]he potential or lack of potential
for the rehabilitation or treatment of the defendant should be considered in determining
the sentence alternative or length of a term to be imposed.” T.C.A. § 40-35-103(4), (5).

       Pursuant to Tennessee Code Annotated section 39-13-522(b)(2)(A), the Defendant
was required to be sentenced as a Range II offender for his conviction of rape of a child,
a Class A felony, and, thus, was subject to a sentence of twenty-five to forty years. See
                                           - 10 -
T.C.A. §§ 39-13-522(b)(1); 40-35-112(b)(1). As a Range I standard offender for the
remaining convictions, the Defendant was subject to a sentence of eight to twelve years
for aggravated sexual battery, a Class B felony; three to six years for incest, a Class C
felony; and two to four years for attempted incest, a Class D felony. See T.C.A. §§ 39-
12-107(a); 39-15-302(b); 39-13-504(b); 40-35-112(a). The trial court imposed a mid-
range sentence for each conviction.

       The Defendant asserts that the trial court erred in failing to consider his work
history under the “catch-all” mitigating factor in Tennessee Code Annotated section 40-
35-113(13). This court has observed both that a defendant’s work ethic and family
contributions may mitigate a sentence and that a stable work history is not a mitigator
because it is “expected of everyone.” State v. Kelly, 34 S.W.3d 471, 482 (Tenn. Crim.
App. 2000) (citing State v. McKnight, 900 S.W.2d 36, 55 (Tenn. Crim. App. 1994)
overruled on other grounds by State v. Collier, 411 S.W.3d 886, 899 (Tenn. 2013); State
v. Keel, 882 S.W.2d 410, 423 (Tenn. Crim. App. 1994)). This court has reconciled these
two premises and concluded that a trial court may consider a defendant’s work history in
mitigation if “the defendant’s ‘performance has surpassed that which is expected of
him.’” Id. at 482-83 (quoting State v. Randal A. Thies, No. 02C01-9708-CC-00299, 1998
WL 391813, at *7 (Tenn. Crim. App. Apr. 24, 1998)); see State v. Timothy A. Crowell,
No. M2016-01980-CCA-R3-CD, 2018 WL 3954181, at *15 (Tenn. Crim. App. Aug. 16,
2018), perm. app. denied (Tenn. Dec. 6, 2018). Although a positive work history may be
considered, it is not a statutory mitigating factor under section 30-35-113, and “‘it is left
to the sound discretion of the trial court whether to apply the so-called “catch-all”
provision of section 40-35-113(13).’” Timothy A. Crowell, 2018 WL 3954181, at *15
(quoting State v. Glenn Lemual Stepp, No. E2013-01291-CCA-R3-CD, 2014 WL
1018215, at *14 (Tenn. Crim. App. Mar. 17, 2014)).

       The Defendant did not argue at the sentencing hearing for the application of any
mitigating factors and did not offer any proof in support of any mitigating factors.
Nevertheless, the trial court reviewed the presentence report and considered the
Defendant’s lack of a criminal history and his military history under the “catch-all”
mitigating factor. We conclude that the trial court did not abuse its discretion in
declining to also consider the Defendant’s work history.

        The Defendant next asserts that the trial court erred in applying as an enhancement
factor that “[t]he offense involved a victim and was committed to gratify the defendant’s
desire for pleasure or excitement.” T.C.A. § 40-35-114(7). In determining whether to
apply this enhancement factor to sexual offenses, the trial court must examine the
defendant’s “motive for committing the offense.” State v. Arnett, 49 S.W.3d 250, 261
(Tenn. 2001) (citing State v. Kissinger, 922 S.W.2d 482, 490 (Tenn. 1996)). “[P]roper
application of factor (7) requires the State to provide … objective evidence of the
                                           - 11 -
defendant’s motivation to seek pleasure or excitement through sexual assault.” Id. at 262.
Our supreme court has explained that such evidence may include, but is not limited to,
“sexually explicit remarks and overt sexual displays made by the defendant, such as
fondling or kissing a victim or otherwise behaving in a sexual manner, or remarks or
behavior demonstrating the defendant’s enjoyment” of the offense. Id. (citations
omitted).

        The evidence presented at trial and in the presentence report established that the
Defendant kissed the victim, fondled her breasts and buttocks, and inserted his finger into
her vagina. The victim reported that during the assaults, the Defendant had an unusual
look on his face. We conclude that the Defendant’s overt sexual displays and behavior
during the sexual assaults demonstrated that he committed the offenses to gratify his
desire for pleasure and excitement. Thus, the trial court properly applied enhancement
factor (7) to the Defendant’s convictions for rape of a child, incest, and attempted incest.

       The State correctly concedes that the trial court erred in applying enhancement
factor (7) to the Defendant’s aggravated sexual battery convictions because sexual
arousal or gratification is an element of aggravated sexual battery. See Kissinger, 922
S.W.2d at 489-90. The mere misapplication of an enhancement factor, however, does not
invalidate the sentences unless the sentences departed wholly from the Sentencing Act.
Bise, 380 S.W.3d at 706 (upholding sentences when trial court incorrectly applied the
single enhancement factor because other reasons consistent with the purposes of
sentencing supported the sentences). The Defendant does not challenge the trial court’s
application of enhancement factor (14), and the record reflects that the trial court imposed
mid-range sentences upon consideration of the purposes and principles of sentencing.
The trial court did not abuse its discretion.

                           B. Partial Consecutive Sentences

       The Defendant challenges the trial court’s imposition of partial consecutive
sentences. The decision to impose consecutive sentences rests within the sound
discretion of the trial court. State v. Hayes, 337 S.W.3d 235, 266 (Tenn. Crim. App.
2010). The standard of review for consecutive sentencing is abuse of discretion with a
presumption of reasonableness. State v. Pollard, 432 S.W.3d 851, 859 (Tenn. 2013).
“So long as a trial court properly articulates reasons for ordering consecutive sentences,
thereby providing a basis for meaningful appellate review, the sentences will be
presumed reasonable and, absent an abuse of discretion, upheld on appeal.” Id. at 862.
Consecutive sentencing is “guided by the general sentencing principles providing that the
length of a sentence be ‘justly deserved in relation to the seriousness of the offense’ and
‘no greater than that deserved for the offense committed.’” State v. Imfeld, 70 S.W.3d
698, 708 (Tenn. 2002) (citing T.C.A. §§ 40-35-102(1), -103(2)).
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       To impose consecutive sentencing, the trial court must find by a preponderance of
the evidence at least one of seven factors listed in Tennessee Code Annotated section 40-
35-115(b), which includes:

       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.

T.C.A. § 40-35-115(b)(5). All of the aggravated circumstances listed in (b)(5) need not
be present to justify consecutive sentencing, and “consecutive sentencing may still be
appropriate under subsection (5) ‘even when one factor militates against [it] if the other
aggravating circumstances have been established and carry sufficient weight.’” State v.
James Allen Perry, No. E2015-01227-CCA-R3-CD, 2016 WL 2901817, at *4 (Tenn.
Crim. App. May 13, 2006) (quoting State v. Doane, 393 S.W.3d 721, 739 (Tenn. Crim.
App. 2011)).

        The trial court imposed partial consecutive sentences based upon subsection (b)(5)
“with consideration of the aggravated circumstances arising from the relationship
between the [D]efendant and the victim.” The record reflects that the Defendant and the
eight-year-old victim shared a close relationship as grandfather and granddaughter, and
the victim often visited the Defendant and spent the night at his home. The Defendant
exploited his close relationship with the victim to sexually abuse her on multiple
occasions by touching her breasts, buttocks, and vagina and penetrating her with his
fingers. The Defendant secured the victim’s silence by threatening harm to her mother if
the victim reported his action, and it was only have the Defendant’s wife walked in on
them that the Defendant ceased the abuse. See State v. Ricky Allen Hickman, No.
M2013-02390-CCA-R3-CD, 2014 WL 4557626, at *9 (Tenn. Crim. App. Sept. 16, 2014)
(upholding the trial court’s imposition of partial consecutive sentencing where the
Defendant committed multiple acts of sexual abuse that arose from his relationship as the
victim’s grandfather and caretaker and then made threatening statements to the victim to
prevent her from reporting the abuse). Given the deference that this court must afford to
a trial court’s decision regarding consecutive sentencing, we conclude that the trial court
did not abuse its discretion in imposing partial consecutive sentences.

                                    CONCLUSION

        Upon reviewing the record and the applicable law, we affirm the judgments of the
trial court. We note that the judgments for the aggravated sexual battery convictions in
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counts three and four do not reflect aggravated sexual battery as the conviction offense or
the eleven-year sentence imposed by the trial court for each conviction. We further note
that the judgment for the attempted incest conviction incorrectly reflects a five-year
sentence rather than the three-year sentence imposed by the trial court. Thus, we remand
for correction of these judgments.




                                    ___________________________________________
                                    JOHN EVERETT WILLIAMS, PRESIDING JUDGE




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