          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE             FILED
                            JULY SESSION, 1999          October 13, 1999

                                                      Cecil Crowson, Jr.
                                                     Appellate Court Clerk
STATE OF TENNESSEE,               )    C.C.A. NO. 01C01-9809-CR-00372
                                  )
            Appellee,             )
                                  )    DAVIDSON COUNTY
V.                                )
                                  )
                                  )    HON. CHERYL BLACKBURN
KENNETH A. JOHNSON,               )
                                  )
            Appe llant.           )    (RAPE; SIM PLE ASS AULT)



FOR THE APPELLANT:                     FOR THE APPELLEE:

KARL DEAN                              PAUL G. SUMMERS
District Public Defender               Attorney General & Reporter

JEFFREY A. DeVASHER                    MARVIN E. CLEMENTS, JR.
Assistant Public Defender              Assistant Attorney General
                                       2nd Floor, Cordell Hull Building
JOAN A. LAWSON                         425 Fifth Avenue North
Assistant Public Defender              Nashville, TN 37243

ALLAN CALHOUN                          VICTO R S. JO HNS ON, III
Assistant Public Defender              District Attorn ey Ge neral
1202 Stahlman Building
Nashville, TN 37201                    DIANE LANCE
                                       Assistant District Attorney General

                                       DAN HAMM
                                       Assistant District Attorney General
                                       Washington Square - Suite 500
                                       222 Se cond A venue N orth
                                       Nashville, TN 37201-1649




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                    OPINION

       On March 20, 199 8, the Davidson County Grand Jury indicted Appellant

Kenn eth Allen Johnson for two counts of aggravated sexual battery, two counts of

rape, and one count of sexual battery. Following a jury trial on March 23–25, 1998,

Appellant was convicted of one coun t of rape and two co unts of sim ple assa ult.

After a sentencing hearing on July 1, 1998, the trial court imposed a ten year

sentence for the rap e convictio n and a six mon th sentence for ea ch of th e sim ple

assault convictions. In addition, the trial court set Appellant’s release eligibility

percentage at 100% for the rape sentence and 75% for eac h of the simp le assa ult

sentences.    The trial court a lso ord ered th e sen tence s for the simp le assa ult

convictions to run concurrently to each other, but consecutively to the sentence for

the rape c onvictio n. On Augu st 14, 1 998, th e trial co urt dism issed Appe llant’s

convictions for simple assault because they were barred by the statute of limitations.

Appellant challenges his sentence for the rape conviction, raising the following

issues:

       1) whether the trial court imposed an excessive sentence; and

       2) whether the trial court erred when it set the release eligibility percentage at
       100%.

After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.



                                        I. FACTS




       S.R. (it is the policy of th is court to refer to the victims of child sexual abuse

only by their initials) testified th at her olde r sister Da na Joh nson w as ma rried to

Appe llant. S.R. also testified that beginning when she was eleven years old, she

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would spen d ever y other week end w ith App ellant a nd Ms . John son a t their

residence.



      S.R. testified that one night when she was eleven years old, she stayed in the

same bedroom as Appellant and Ms. Johnson. At some point that night, Appellant

reached under S.R.’s clothing and touched her breasts. The touching lasted for

appro ximate ly five minutes and ended when S.R. “tried to jerk away.” S.R. also

testified that while she was staying with Appellant and Ms. Johnson two or three

weeks after this incident, Appellant touched her breasts again.



      S.R. testified that about three months before Ms. Johnson gave birth to a son

on August 7, 1995, Appellant and Ms. Johnson moved to a new residence on

W hite’s Creek Pike. After Appellant and Ms. Johnson moved to this residence, S.R.

spent the night with them approximately every other week or every third week. On

these occasio ns, S.R ., Appellan t, and Ms. Johnson all slept in the same bed and at

Appe llant’s suggestion, Appellant slept between S.R. and Ms. Johnson so that S.R.

would not kick Ms. Johnson in her sleep.



      S.R. testified that while she was staying with Appellant and Ms. Johnson at the

W hite’s Creek residence, Appellant placed his finger in her vagina between ten and

fifteen times. S.R. also tes tified that on one occasion, Appellant pulled down her

sweatpants and rubbed his penis on the inside of her leg.



      S.R. testified that she did not say anything when these incidents occurred

because she did not want to wake up Ms. Johnson. S.R. a lso testified tha t she d id




                                         -3-
not report the incidents immediately because she was afraid tha t no on e wou ld

believe he r and be cause she did n ot want to “tear up [h er] family.”



       Detective Harry Meek testified that he interviewed Appellant on November 11,

1996. During the interview, Appellant gave a statement about the allegations made

by S.R..    Appellant stated that he penetrated S.R.’s vagina with his finger on

approxim ately ten occasions beginning in July of 1995. Appellant also stated that

he would beco me s exually arous ed wh en he digitally pene trated S .R. an d he w ould

subsequently relieve his arousal by having sex with Ms. Johnson while he thought

about h is penetra tion of S.R ..



                             II. LENGTH OF SENTENCE




       Appellant contends that the trial court imp osed a n exces sive sente nce. W e

disagree.



       “When reviewing sentencing issues . . . including the granting or denial of

probation and the length of sentence, the appellate co urt shall conduc t a de novo

review on the record of such iss ues.       Su ch review shall be co nducte d with a

presumption that the determ inations mad e by the court from which the ap peal is

taken are correct.”     Tenn. Code Ann. § 40-35-401(d) (1997).            “However, the

presumption of corre ctnes s whic h acc omp anies the trial c ourt’s action is conditioned

upon the affirmative showing in the record that the trial court considered the

sentencing principles and all relevant fa cts and circum stances.” State v. Ashby, 823

S.W.2d 166, 169 (Ten n. 199 1). In co nduc ting ou r review , we m ust co nside r all the

evidence, the pres entenc e report, th e sente ncing prin ciples, the enhancing and

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mitigating factors, arguments of counsel, the defendant’s statements, the nature and

character of the offense, and the defendant’s potential for rehabilitation. Tenn. Code

Ann. §§ 40-35-103(5), -210(b) (1997 & Supp. 1998); Ashby, 823 S.W.2d at 169.

“The defendant has the burden of demonstrating that the sentence is improper.” Id.



      In this case , Appella nt was co nvicted of ra pe, a Cla ss B felon y. See Tenn.

Code Ann. § 39-13-503(b) (1997). The sentence for a Range I offender convicted

of a Class B felony is between eight and twelve years. Tenn. Code Ann. § 40-35-

112(a)(e) (1997). When both enhancement and m itigating facto rs are ap plicable to

a sentence, the court is directed to begin with the minimum sentence, enhance the

sentence within the range as appropriate for the enhancement factors, and then

reduce the sentence within the range as appropriate for the mitigating factors. Tenn.

Code A nn. § 40-35-2 10(e) (1997 ).



      In determining th at Appellant sh ould serve a sentence of ten years for his rape

conviction, the trial court found that the following enhancement factors were

applicable: (1) Appellant ha d a previous history of crim inal beha vior in additio n to

that neces sary to establish the appropriate sentencing range; (4) the victim was

particu larly vulnerable because of ag e; (7) the o ffense w as com mitted to s atisfy

Appe llant’s desire for p leasure or excitem ent; and (15) Appellant abused a position

of private trust in a way that significantly facilitated the commission of the offense.

See Tenn . Code Ann. § 40-35-114(1), (4), (7), (15) (1997). The trial court also found

that mitigating factor (13) was applicable because, in mitigation, Appellant had

participated in counseling, had shown genuine remors e, and h ad sho wn am enability

to treatm ent. See Tenn. C ode Ann . § 40-35-113 (13) (1997).




                                          -5-
        Initially, we note that Ap pellan t does not co ntend that the trial cou rt shou ld

have applied a ny addition al mitigating factors no r does A ppellant c ontend that the

trial court should have given the mitigating factors it did apply an y additiona l weight.

W e conclude in our de novo review that the trial court properly applied the mitigating

factors in this case.



        Appellant does not challenge the application of enhancement factor (1) and

we conclude tha t the trial court properly app lied this factor. In deed , Appe llant’s

clinical therapist testified during the sentencing hearing that Appellant had admitted

that he ha d stolen a comp uter from his forme r place of e mploym ent.



        Appellant also does not challenge the application of enhancement factor (7)

and we conclude that it was correctly applied. Indeed, Appellant admitted in his

statement to polic e that h e bec ame arous ed wh en he digitally p enetra ted S.R .’s

vagina and he then thought about the penetration of S.R. while he had s ex with h is

wife.



        Appellant does challenge the application of enhancement factor (4) and we

agree that the trial court erred when it applied this factor. As this Court has

previous ly stated,

        [A] victim is particularly vulnerable within the meaning of this enhancement
        factor when the victim lacks the ability to resist the commission of the crime
        due to age, a physical condition, or a mental condition. A victim is also
        particu larly vulnerable when his or her ability to summons assistan ce is
        impaired; or the victim does not have the capacity to testify against the
        perpetrator of the crime. However, a finding that one of these conditions
        exists does not, as a matter of law, mean tha t this fac tor is au toma tically
        considered. The appellant must have taken advantage of one or more of
        these conditions during the commission of the crime. The state had the
        burden of establishing the limitations that ren der the victim “p articula rly
        vulnerab le.” The state also had the burden of establishing that the condition

                                            -6-
       which rendered the victim “particularly vulnerable” was a factor in the
       commission of the offense.

State v. Butler, 900 S.W.2d 305, 313 (Tenn. Crim. App. 1994). In this case, the

State failed to mee t is burd en of d emo nstratin g that S .R. wa s “partic ularly

vulnerable” because of her age. There is no proof in the record that S.R.’s age

affected her ability to resist, he r ability to sum mon h elp, or her a bility to testify

against Appella nt. Indeed , S.R. did te stify again st App ellant a nd sh e ess entially

testified that the reason she did not resist or summon help was because of her fear

that she would damage family relationships. Thus, we conclude tha t the trial court

erred when it applied this factor.



       Appellant also challenges the application of enhancement factor (15) and we

agree that the trial court erred when it applied this factor.        Tennessee Code

Annotated section 40-35 -114 states tha t enhancem ent factors must b e “appro priate

for the offense” and must not be “essential elements of the offense as cha rged in the

indictme nt.” Tenn. Code Ann. § 40-35-114 (1997). The Tennessee Suprem e Court

has stated that “[t]hese limitations exclude enh ancem ent factors based on facts

which are us ed to p rove th e offen se or [f]a cts wh ich est ablish the elements of the

offense charged.” State v. Poo le, 945 S.W.2d 93, 98 (Tenn. 1997) (citation and

internal qu otations o mitted).



       In this case, the State relied on the same facts to establish both an element

of the offen se of rap e and th e abus e of a pos ition of private trust. In orde r to

establish that Appellant had committed the offense of rape, the State ha d to prove

beyond a reas onab le doubt that Appellant had unlawful sexual penetration of S.R.

accomplished by force or coercion . See Tenn. Code Ann. § 39-13-50 3(a)(1) (1997).



                                           -7-
In respo nse to Appe llant’s motion for judgement of acquittal at the end of the State’s

proof, the prosecutor argued that the element of coercion had been established by

proof that at the time of the offense, Appellant had custodial authority over S.R. and

he used that custodial authority to commit the offense. Specifically, the prosecutor

stated that

          As for the force or coercion argument, coercion needs to be, one type of
          coercion, obvious ly, is custodia l authority, an d that is wh at the Sta te’s
          argument is in this case; that the defendant had custodial authority over
          [S.R.], and that he us ed his cu stodial au thority to acc omplish this act.

The record indicates that when the trial court sentenced Appellant, it recognized that

the same facts that the State had relied on to establish an element of the offense

were the same facts that established the applicability of factor (15). In fact, the trial

court expressly stated that factor (15) “is . . . an integral part or inherent element of

this offense.” The trial court also stated that although it found that factor (15) was

applicable, it would not give the factor any weight because “it is such an inherent

element of the offense in this case.” Because it is clear tha t the facts u sed to

establish an elem ent of the offense were the same facts that established the

applicab ility of factor (15), we conclude that the trial court erred when it applie d this

factor.



          Even thoug h we h old tha t the trial c ourt er red in a pplying two enhancement

factors, a finding that enhancement factors were erroneously applied does not

equate to a redu ction in the senten ce. State v. Keel, 882 S.W.2d 410, 423 (Tenn.

Crim. App. 1994). In our de novo review, we conclude tha t two enhanc ement fac tors

are applicable in this case and we conclude that these factors are entitled to

significant weight.     Thus, we conclude that a sentence o f ten yea rs is en tirely

appropriate in this case. Appellant is not entitled to relief on this issue.


                                             -8-
                    III. RELEASE ELIGIBILITY PERCENTAGE




      Appellant con tends that the trial court erred when it set his relea se eligibility

percentage at 100%. We disagree.



      Under Tennessee Code Annotated section 40-35-501, a defendant who

comm its the offens e of rape on or after July 1, 1995, must serve 100% of the

sentence imposed by the trial court, less applicable sentencing credits. Tenn. Code

Ann. § 40-35 -501(i)(1)– (2) (1997 ).    Appellan t argues that the above statute is

inapp licable in this case because the State failed to prove th at the rape was

comm itted on or a fter July 1, 19 95.



      In this case, Appellant was convicted of rape under count three of the

indictment, which states that

      [Appella nt] on a day in July, Au gust or Sep tember, 1995, . . . did intentionally,
      knowingly, or recklessly engage in unlawful sexual penetration of [S.R.] and
      force or co ercion w as use d to acco mplish th e act . . . .

According to the State’s election of offenses,

      Count 3 refers to an incident described by [S.R.], where [Appellant], for the
      first time, placed his finger inside [S.R.’ s] vagin a. This occu rred in
      [Appellant’s] bed on White’s Creek in July, August, or September of 1995.

Appellant is corre ct that S .R. wa s una ble to pinpoint an exact date for when the

incidents of digital penetration began. Instead, S.R. was only able to narrow the time

period by testify ing tha t the inc idents of digital penetration began when she was

staying with Ap pellan t and M s. Joh nson at the W hite’s Creek residence before Ms.

Johnson gave birth to a son on August 7, 1995. Appellant is also correct that other

evidence established that Ap pellan t and M s. Joh nson move d into th e W hite’s Creek




                                           -9-
residence as early as May of 19 95. How ever, the s tateme nt that Ap pellant ga ve to

police contains th e following colloquy:

            [Meek]: Okay. Well, you w ant to just tell me your side of the story of
      what’s . . . wh at’s going on or . . .
            [Appella nt]: Sure. U h . . . uh, I’m . . . my sister-in-law , [S.R.]
            [Meek]: Uh-huh.
            [Appella nt]: . . . approxim ately . . . I’ll say around July of [1995] uh, it’s
      when I started touching her in a sexual nature.
            [Meek]: When was this?
            [Appella nt]: July of [19 95].
            [Meek]: J uly of [1995 ]?
            [Appella nt]: Uh an d it stoppe d som etime in S eptem ber of [19 95].

Thus, according to Appellant’s own statem ent, the offense was committed on or after

July 1, 1995. Therefore, we conclude that the trial court properly set Appellant’s

release eligibility percentage at 100%. Appe llant is not entitled to relief on this issue.



      Accordingly, the judgment of the trial court is AFFIRMED.



                                  ____________________________________
                                  THOMAS T. W OODALL, Judge



CONCUR:



___________________________________
JERRY L. SMITH, Judge


___________________________________
NORMA McG EE OGLE, Judge




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