        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                               Remanded May 15, 2014

                  STATE OF TENNESSEE v. EVERETT RUSS

                 Appeal from the Criminal Court for Shelby County
                       No. 10-07456 Chris B. Craft, Judge


                   No. W2012-00461-CCA-R3-CD - Filed July 14, 2014


The Tennessee Supreme Court has remanded this case for reconsideration in light of State
v. James Allen Pollard, — S.W.3d —, No. M2011-00332-SC-R11-CD (Tenn. Dec. 20,
2013). See State v. Everett Russ, No. M2012-00461-CCA-R3-CD (Tenn. Crim. App. Dec.
9, 2013), perm. app. granted, case remanded (Tenn. May 15, 2014). Relevant to the current
remand, this court concluded in the previous appeal that the trial court erred in imposing
consecutive sentences when only one of the statutory aggravating factors applied to the
Defendant’s two offenses involving the sexual abuse of a minor. See T.C.A. § 40-35-
115(b)(5) (2010). Upon further review, we conclude that the aggravating factors were
sufficient to support the trial court’s imposition of consecutive sentences. We affirm the
judgments of the trial court.

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

J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which J ERRY L. S MITH and
A LAN E. G LENN, JJ., joined.

Paul K. Guibao (on appeal and remand); and Eran E. Julian and Mark A. Saripkin (at trial),
Memphis, Tennessee, for the appellant, Everett Russ.

Robert E. Cooper, Jr., Attorney General and Reporter; Gordon W. Smith, Associate Solicitor
General (on remand); Deshea Dulany Faughn, Assistant Attorney General (on remand); Clark
B. Thornton, Assistant Attorney General (on previous appeal); Amy P. Weirich, District
Attorney General; and Gregory Thomas Carman and Carrie Shelton, Assistant District
Attorneys General, for the appellee, State of Tennessee.
                                          OPINION

        This case relates to the aggravated sexual battery of the Defendant’s daughter.
Regarding the first count, the record reflects that the Defendant lived down the street from
the victim, who lived with her mother, and that the Defendant visited the victim’s house on
April 11, 2010. The victim was sleeping when the Defendant came to her bedroom, pulled
her panties below her knees, rubbed her vagina on the outside with his fingers, and licked her
“private part.” The Defendant stopped when the victim’s brother entered the room. He saw
the Defendant on his knees between the victim’s legs and saw the victim’s panties at her
knees. When her brother asked her if the Defendant licked her, she was too scared to tell him
but then admitted the Defendant licked her. He sent his uncle a text message that said, “My
dad is licking my private part,” but called his uncle to clarify that the Defendant was licking
the victim. The uncle told the victim’s brother to tell his mother what he saw, and he did.
The victim’s mother woke the Defendant, and they argued. The victim’s brother called 9-1-1
during the argument.

      Regarding the second count, the record reflects that a second incident involving the
Defendant and the victim occurred when the victim was eight years old before the April 11,
2010 incident. The victim was lying on the Defendant’s couch at his house and watching
Charlotte’s Web when the Defendant licked her private part. No one else was at the
Defendant’s house at the time.
      The jury found the Defendant guilty of two counts of aggravated sexual battery. He
was sentenced as a Range I, standard offender to consecutive terms of nine years for each
conviction. This appeal followed.

       In its order granting the Defendant’s application for review pursuant to Tennessee
Rule of Appellate Procedure 11, the supreme court stated that the case was remanded to this
court for reconsideration “in light of” James Allen Pollard. State v. Everett Russ, No.
M2012-00461-SC-R11-CD (Tenn. May 15, 2014) (order). In James Allen Pollard, our
supreme court concluded that the appropriate standard of review for all sentencing decisions,
including the determination to impose consecutive sentences, is an abuse of discretion with
a presumption of reasonableness. Id., — S.W.3d at —, slip op. at 14. The presumption of
reasonableness provides “deference to the trial court’s exercise of it discretionary authority
to impose consecutive sentences if it has provided reasons on the record establishing at least
one of the seven grounds listed in Tennessee Code Annotated 40-35-115(b)[.]” Id., —
S.W.3d at —, slip op. at 11. “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., — S.W.3d at —, slip op. at 12. James Allen Pollard is relevant to the Defendant’s
consecutive sentences, and we limit our consideration accordingly.

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       In the previous appeal, the Defendant contended that the trial court erred in imposing
consecutive sentences. He argued that the expert’s testimony at the sentencing hearing was
insufficient to justify consecutive sentences and that the trial court’s use of the Defendant’s
relationship to the victim as an aggravating factor was improper. The State responded that
the court followed the consecutive sentencing statute and considered the purposes and
principles of sentencing and that it did not abuse its discretion in ordering consecutive
sentences.

        In its Rule 11 application, the State argued that an appellate court’s disagreement with
the trial court’s interpretation or weighing of the evidence for consecutive sentences was not
sufficient to establish an abuse of discretion in light of the presumption of reasonableness
attached to the trial court’s determination. The Defendant did not file a reply to the State’s
Rule 11 application.

        At the sentencing hearing, Kim Campbell, a licensed clinical social worker and the
intervention services director for the Memphis Child Advocacy Center, testified that she
interviewed the victim and her mother and administered standardized tests to them. She said
the victim was experiencing clinically significant symptoms of post-traumatic stress related
to the sexual abuse by her father, the Defendant. She said the victim reported fearing future
abuse, fear of her father, difficulty sleeping, and hyper-vigilance. She said the victim
avoided thoughts, talk, and emotions about the traumatic experience. She recommended the
victim resume counseling at the Child Advocacy Center and thought the victim would benefit
from an evidence-based treatment model the center used that was proven effective in treating
children with post-traumatic stress symptoms. She said that children who had been sexually
abused could experience long-term consequences such as anxiety, depression, and increase
in “self-harming” or “sexually promiscuous” behaviors and that the victim could experience
these in the future.

        On cross-examination, Ms. Campbell testified that the tests were administered on
January 3, 2012. She said that the victim attended four counseling sessions in June and July
2010, but that treatment was not completed because the victim quit attending. She did not
know why the victim quit coming and said sometimes families just “drop out.” She said that
the victim returned to the Child Advocacy Center because the prosecutor referred her for the
assessment around Christmas 2011 and that the agency had no contact with the victim
between June or July 2010 and the beginning of 2012. She clarified that the victim’s mother
contacted the victim’s former counselor in November 2010, requesting that the victim return
to counseling but that the victim did not return.




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        Ms. Campbell testified that the victim’s mother completed a trauma symptom
checklist for young children about the victim and that her scores indicated post-traumatic
stress disorder was “likely” for the victim. She said the victim’s self-reported test scores did
not indicate post-traumatic stress disorder. She said the Child Advocacy Center typically did
not diagnose officially. She agreed the victim might not have post-traumatic stress disorder
but said the victim reported clinically significant symptoms associated with the disorder.

       Ms. Campbell testified that the victim would have begun therapy on January 23, 2012,
and would have attended weekly for sixteen to twenty sessions. She said that it was normal
for patients to finish treatment within one year but that some children who experienced
multiple traumas could have longer treatment periods. She said the victim’s test results did
not indicate other traumatic stress. She said that if the victim completed treatment, it was
likely her current symptoms would diminish and that she would function well. She said,
though, that it was not uncommon for children with a history of sexual abuse as young
children to have new questions, concerns, and issues when they reach adolescence and that
it was not unusual for children to return for further treatment as they aged. She said there
was no way to know if the victim would experience new issues.

        The victim’s mother completed a victim impact statement on behalf of the victim,
which was received as an exhibit. She said that the victim and the victim’s brother had
difficulty dealing with the abuse, did not know how to react or what to expect, and were
afraid the Defendant would be released from jail. She said the victim did not like to talk
about the abuse and had trouble sleeping.

         The trial court stated that it considered the evidence at the trial, the victim’s testimony,
the expert’s testimony at the sentencing hearing, the presentence report, the victim’s mother’s
letter, counsel’s arguments, and the principles of sentencing, and it sentenced the Defendant
as a Range I offender. Regarding consecutive sentencing, the court found that the Defendant
was convicted of two offenses involving sexual abuse of a minor and considered the
aggravating circumstances of the Defendant’s relationship to the victim, the victim’s “horror”
knowing her father did this, and her feeling helpless. The court considered the time between
the two offenses and the nature and scope of the sexual acts, which it did not consider
particularly great because there was no penetration. The court determined that the victim
suffered residual physical and mental damage based on the expert’s testimony and report.
The court found that consecutive service of the two sentences was appropriate and sentenced
the Defendant to nine years for each conviction, for an effective eighteen-year sentence.

         As we discussed in the previous appeal, a trial court may order consecutive sentences
if it finds by a preponderance of the evidence that



                                                 -4-
       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). As previously stated, our supreme court recently concluded that
the appropriate standard of review for all sentencing decisions, including the determination
to impose consecutive sentences, is an abuse of discretion with a presumption of
reasonableness. James Allen Pollard, — S.W.3d at —, slip op. at 14.

       The record shows that the Defendant was convicted of “two (2) or more statutory
offenses involving sexual abuse of a minor.” We consider the statutory aggravating
circumstances. The trial court noted the Defendant’s being the victim’s father and found
residual harm based on the expert’s testimony but found that the time between the two
offenses was about one week and that the nature and scope of the sexual acts were not
particularly great because there was no penetration. The Defendant was the victim’s father,
and his relationship with the victim favors consecutive sentences.

       Regarding the time span of the Defendant’s undetected sexual activity, this court has
previously concluded that four sexual acts over a four year period, three or four years of
undetected sexual offenses, and more than one month of continued sexual intercourse were
sufficient to prove the aggravating circumstance. See State v. Doane, 393 S.W3d 721, 739
(Tenn. 2011) (concluding that when the defendant touched the victim’s vagina on four
separate occasions over a two year period of time, the factor heavily favored consecutive
sentences); State v. Lane, 3 S.W.3d 456, 460 (Tenn. 1999) (concluding that the State
sufficiently proved the aggravating circumstance when the defendant engaged in sexual
intercourse with the victim for over one month and terminated the conduct only after being
confronted by the Tennessee Bureau of Investigation); State v. Osborne, 251 S.W.3d 1, 28
(Tenn. Crim. App. 2007) (concluding that the trial court properly imposed consecutive
sentences when the sexual offenses went undetected for three or four years). In contrast, the
Defendant committed two offenses within one week. The span of activity is not so egregious
as to compel consecutive sentences. Regarding the nature and scope of the sexual acts, we
agree with the trial court that the nature and scope were not particularly great.

       Regarding the extent of the residual physical and mental damage to the victim, Ms.
Campbell testified that the victim had difficulty sleeping, was hyper-vigilant, and showed
clinically significant symptoms of post-traumatic stress disorder but that the disorder was not
diagnosed. She stated, though, that if the victim completed treatment, it was likely her

                                              -5-
current symptoms would diminish and that she would function well. Ms. Campbell said that
although long-term consequences of the abuse were possible, there was no way to know if
the victim would experience new issues. The victim had not participated in ongoing
treatment, and whether she needed it was not shown. Although the testimony of the clinical
social worker was less than certain, we will not second-guess a trial court’s weighing of the
evidence.

        Not all the aggravating circumstances must be present to support the imposition of
consecutive sentences. Doane, 393 S.W3d at 738. Even if one circumstance weighs against
it, consecutive sentences may be appropriate if the other aggravating circumstances have
been established and carry sufficient weight. Id. The Defendant was convicted of two
offenses involving sexual abuse of a minor. Although the span of activity was not egregious
and the nature and scope were not particularly great, the trial court found that the
Defendant’s relationship to the victim and the residual physical and mental damage to the
victim supported consecutive sentences. The trial court provided adequate reasons on the
record for imposing consecutive sentences, and the determination is supported by the record.
We conclude that the court did not abuse its discretion in imposing consecutive sentences.

        In consideration of the foregoing and the record as a whole, we affirm the judgments
of the trial court.


                                              ____________________________________
                                              JOSEPH M. TIPTON, PRESIDING JUDGE




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