        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs August 7, 2012

            STATE OF TENNESSEE v. DAVID EUGENE BREEZEE

               Direct Appeal from the Circuit Court for Benton County
                     No. 10-CR-45     C. Creed McGinley, Judge


              No. W2011-02186-CCA-R3-CD - Filed December 26, 2012


A Benton County Circuit Court Jury convicted the appellant, David Eugene Breezee, of rape
of a child, a Class A felony, and incest, a Class C felony. After a sentencing hearing, the trial
court merged the incest conviction into the rape of a child conviction and sentenced the
appellant to twenty-five years in confinement. The sentence was to be served consecutively
to a prior sentence. On appeal, the appellant contends that (1) the evidence is insufficient to
support the convictions, (2) the trial court erred by refusing to allow him to question the
victim about nude photographs taken of her by a registered sex offender, and (3) the trial
court improperly ordered consecutive sentencing. The State argues that the trial court erred
by merging the appellant’s convictions. Based upon the record and the parties’ briefs, we
conclude that the evidence is sufficient to support the appellant’s convictions, that the trial
court did not err by refusing to allow the appellant to question the victim about nude
photographs, and that the trial court did not err by ordering consecutive sentencing. However,
the trial court erred by merging the appellant’s convictions. Therefore, the appellant’s incest
conviction is reinstated, and the case is remanded to the trial court in order for the court to
resentence the appellant for both offenses.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed in
                Part, Reversed in Part, and the Case is Remanded.

N ORMA M CG EE O GLE, J., delivered the opinion of the Court, in which T HOMAS T. W OODALL,
and R OGER A. P AGE, JJ., joined.

Guy T. Wilkinson and Gary J. Swayne, Camden, Tennessee, for the appellant, David Eugene
Breezee.

Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney
General; Hansel Jay McCadams, District Attorney General; and James E. Williams, Assistant
District Attorney General, for the appellee, State of Tennessee.
                                        OPINION

                                 I. Factual Background

       Sergeant Ricky Pafford of the Benton County Sheriff’s Department (BCSD) testified
that on September 26, 2010, he and Cendy Curtis of the Department of Children’s Services
(DCS) went to a school in Big Sandy, Tennessee, to speak with the victim, who was the
appellant’s stepdaughter.     Sergeant Pafford and Curtis were investigating “some
inappropriate touching of a juvenile.” They spoke with the victim, and she made allegations
against the appellant. Later that day, Sergeant Pafford and Curtis spoke with the victim at
the DCS building, and the victim gave a statement.

        Sergeant Pafford testified that he and Curtis interviewed the appellant twice. The
purpose of the first interview, which lasted three to four hours, was to learn about the
dynamics of the victim’s family. The purpose of the second interview, which also lasted
three to four hours, was to discuss the victim’s allegations. Sergeant Pafford said that when
the appellant learned about the victim’s claims, he acted “surprised, shocked.” During the
second interview, Sergeant Pafford wrote out questions for the appellant and wrote down the
appellant’s answers. One question asked, “Did you think when you were touching the girl
that it would not hurt her[?]” The appellant answered, “I don’t know what I was thinking.”
Another question asked, “You understand that what you done was breaking the law[?]” The
appellant answered, “Yes. Touching a kid is breaking the law.” At the conclusion of the
appellant’s second interview, he stated, “I don’t know why I touched the girl.” Sergeant
Pafford said the appellant “got teary eyed” and acted relieved, so Sergeant Pafford
considered the appellant’s statement to be a confession.

       On cross-examination, Sergeant Pafford testified that during the appellant’s first
interview, the appellant denied any wrongdoing. The first interview was not audio recorded.
Sergeant Pafford tried to audio-record the second interview, but the recorder malfunctioned.
Sergeant Pafford acknowledged that he did not write down the appellant’s statement, “I don’t
know why I touched the girl.” Sergeant Pafford arrested the appellant after the second
interview.

       Lieutenant Bryant Allen of the BCSD testified that during the appellant’s second
interview, Sergeant Pafford came to him and asked him to speak with the appellant because
Sergeant Pafford “wasn’t getting anywhere.” Lieutenant Allen interviewed the appellant for
about fifteen minutes while Sergeant Pafford took notes and wrote down the appellant’s
answers. At the conclusion of the interview, Lieutenant Allen asked the appellant why he
had touched the victim. Lieutenant Allen said the appellant put his head down and stated,
“I don’t know why I touched the girl.” The appellant then put his head in his hands and

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sobbed.

       On cross-examination, Lieutenant Allen acknowledged that he agreed to interview the
appellant because the appellant was not telling Sergeant Pafford anything incriminating. He
also acknowledged that Sergeant Pafford should have written down that the appellant said,
“I don’t know why I touched the girl.”

        Cendy Curtis, a child protective service investigator for DCS, testified that she
received a report about the victim on February 25, 2010. The next day, she and a police
officer went to the victim’s school. The victim was absent, so Curtis and the officer went to
the victim’s home and talked with her. Curtis said that the victim did not give them much
information and that Curtis “felt like there was a lot of stuff going on in the home that
shouldn’t be.” Curtis asked the victim’s mother to bring the victim to the DCS office in
order for Curtis to interview the victim privately. After speaking with the victim in the DCS
office, Curtis and Sergeant Pafford interviewed the appellant. During the appellant’s first
interview, he did not admit to abusing the victim. Curtis was not present during the
appellant’s second interview. However, after the second interview, she spoke with him, and
he admitted that he had molested the victim. Curtis said he told her that he “did not know
why he had done that to [the victim].” Curtis said that she had talked with the victim in 2009
about allegations of abuse and that the victim had been “too afraid” to make allegations at
that time because “she had been instructed not to.”

       On cross-examination, Curtis acknowledged that during the appellant’s first interview,
he denied abusing the victim. She said that her 2009 investigation involved abuse that
allegedly occurred in 2007.

        Shane Penn testified that he met the appellant when they shared a cell for two to three
months at the Benton County Jail. The appellant was very loud and outspoken. At first, the
appellant claimed he had been wrongly accused. However, Penn later heard the appellant
talking with another cellmate about the appellant’s case. Penn said that he “didn’t get great
detail” but that he “heard enough to know what [the appellant] did was wrong.” He said he
heard the appellant “went to the couch, climbed up with her, pinned her in, [and] started
doing it. The oral.” Penn said he later assaulted the appellant in jail “[f]or what he did” to
the victim. Penn explained, “I got tired of hearing about it. At the beginning of it you didn’t
do it. The next minute he did it and he liked it.” When Penn got out of jail, he spoke with
Cendy Curtis and told her about what he had heard. Penn said he currently had sole custody
of his son and that he was working for a tree service. He said he had not received anything
from the State in exchange for his testimony.

       On cross-examination, Penn acknowledged that he “got [his] kid back” from DCS

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after he was released from jail. He said jail inmates kept their legal papers by their
mattresses but denied looking at the appellant’s warrant, which alleged the facts of the crime.
He acknowledged that he had prior convictions, that he pled guilty to assaulting the
appellant, and that he received a thirty-day sentence for his conviction.

        Tiffany Chaney, the appellant’s ex-wife, testified that she and the appellant were
married for seven and one-half years and had one son together. On the night of February 12,
2007, while they were still married, Chaney woke up suddenly. The appellant was not in bed
with her. Chaney said that she “felt something wasn’t right” and that she “creeped” to the
end of the hallway. Chaney saw the appellant kneeled down in front of the victim, who was
lying on the couch. The appellant was licking the victim’s vagina and had his fingers inside
of her. Chaney said that when the appellant realized she was there, he “jumped up and told
[her] to get the gun” because Chaney previously had told the appellant that she would shoot
anyone who hurt her children. Chaney took the victim and the victim’s sister to a friend’s
house but returned home to stay with the appellant. The appellant told Chaney that he was
sorry and would get help. Chaney said that the appellant had threatened to kill her in the past
and that she did not call the police because she was afraid of him and losing her children.
After three or four days, the victim returned home. The appellant hugged the victim and
Chaney and told them that he would not abuse the victim again and never meant to hurt the
victim. Chaney said that after the victim returned home, she did not leave the victim alone
with the appellant and “quit sleeping.”

       On cross-examination, Chaney acknowledged that in April 2010, her family moved
to Hollow Rock, Tennessee. The victim knew of the planned moved and was upset about it
because she had a boyfriend and did not want to move away from him. Chaney
acknowledged that the appellant was a truck driver in 2007 and that she “mess[ed] around”
with William Tindall Todd, a registered sex offender, while the appellant was working away
from home. In 2009, Chaney spoke with Cendy Curtis. However, she did not tell Curtis
about the appellant’s performing oral sex on the victim in 2007. Chaney said she did not tell
Curtis about the abuse because she did not think the appellant abused the victim more than
one time.

       The victim, who was sixteen years old at the time of trial, testified that in 2007, she
was twelve years old and lived in Big Sandy with the appellant, her mother, her sister, and
her brother. On the night of February 12, 2007, the victim was sleeping on the couch
because her bed was broken. The victim woke up with her shorts and undergarment on the
floor and the appellant’s head between her legs. The appellant’s tongue was in her vagina.
The victim tried to push the appellant away, but he held her so she could not move. The
appellant told the victim to “shh,” and the victim did as she was told. The victim’s mother
walked into the room, and the appellant went into the kitchen with her. The victim said that

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her mother and the appellant were screaming and fighting and that the appellant kept
apologizing to her mother. The victim’s mother told her and her sister to pack their clothes
because they were leaving.

        The victim testified that she and her sister went to a friend’s house for three days. The
victim spoke with the appellant over the telephone, and the appellant told her that she would
be in trouble if she did not return home. The victim thought she was going to get a beating
if she did not go home, so she went back to live with her mother and the appellant. When
she got home, the appellant hugged her and her mother, cried, and told them he was sorry.
The appellant claimed he had been sleepwalking, but the victim said he was awake when he
performed oral sex on her. The victim denied making up the allegations in order to get back
at the appellant for moving the family to Hollow Rock. She acknowledged that she was
asked about the sexual abuse in 2009. She said she denied the abuse at that time because she
thought the appellant would whip her.

        On cross-examination, the victim acknowledged that she had a boyfriend at the time
of the sexual abuse and that he would spend the night at her home. The appellant wanted the
victim’s boyfriend to leave, which upset the victim. The appellant would beat the victim
every night while the victim’s mother was at work, and the beatings continued for three or
four years. The victim said the appellant did not start driving a truck and being away from
home “until year before last.” The victim never told anyone before trial about the beatings.

       On redirect examination, the victim acknowledged that she wrote a letter to the district
attorney’s office in which she stated that she was beaten every night. On recross
examination, the defense showed the victim a bus ticket, and she acknowledged that it
showed the appellant went to Atlanta, Georgia, in 2007. At the conclusion of the victim’s
testimony, the State rested its case.

        Johnny Sterling testified for the appellant that he was an inmate in the Benton County
Jail with the appellant and Shane Penn and that he never heard the appellant talk about the
appellant’s case. He said that inmates charged with sex offenses were perceived “[v]ery
badly” by other inmates and that sex offenders did not discuss their cases because “[i]t’s a
sure way to get killed.”

       On cross-examination, Sterling testified that he served 111 days in jail for burning a
van. He said that he was not in jail the entire time the appellant was there, and he
acknowledged that he did not know what the appellant said during the time he was not in jail
with the appellant. Sterling was in an inmate in the jail when Penn assaulted the appellant,
but he did not witness the assault.



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        The jury convicted the appellant of rape of a child, a Class A felony, and incest, a
Class C felony. After a sentencing hearing, the trial court merged the incest conviction into
the rape of a child conviction and sentenced the appellant to twenty-five years in
confinement. The trial court ordered that the appellant serve the sentence consecutively to
a prior sentence.

                                         II. Analysis

                               A. Sufficiency of the Evidence

       The appellant contends that the evidence is insufficient to support the convictions
because he repeatedly denied any wrongdoing during his first interview, Sergeant Pafford did
not write down his alleged “confession,” a 2009 investigation did not result in any charges
against him, and he was “on the road a lot” as a truck driver in 2007. The appellant also
argues that Shane Penn and Tiffany Chaney were not credible witnesses and that the victim
had a motive to make false allegations against him because she was upset about the family’s
moving to Hollow Rock. The State argues that the evidence is sufficient. We agree with the
State.

         When an appellant challenges the sufficiency of the convicting evidence, the standard
for review by an appellate 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);
Tenn. R. App. P. 13(e). The State is entitled to the strongest legitimate view of the evidence
and all reasonable or legitimate inferences which may be drawn therefrom. State v. Cabbage,
571 S.W.2d 832, 835 (Tenn. 1978). Questions concerning the credibility of witnesses and
the weight and value to be afforded the evidence, as well as all factual issues raised by the
evidence, are resolved by the trier of fact. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).
This court will not reweigh or reevaluate the evidence, nor will this court substitute its
inferences drawn from the circumstantial evidence for those inferences drawn by the jury.
Id. Because a jury conviction removes the presumption of innocence with which a defendant
is initially cloaked at trial and replaces it on appeal with one of guilt, a convicted defendant
has the burden of demonstrating to this court that the evidence is insufficient. State v.
Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

        Rape of a child is the “unlawful sexual penetration of a victim by the defendant . . .
if the victim is more than three (3) years of age but less than thirteen (13) years of age.”
Tenn. Code Ann. § 39-13-522(a). “‘Sexual penetration’ means sexual intercourse,
cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of
a person’s body or of any object into the genital or anal openings of the victim’s, the

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defendant’s, or any other person’s body, but emission of semen is not required.” Tenn. Code
Ann. § 39-13-501(7). Relevant to this case, a defendant commits incest when the defendant
“engages in sexual penetration . . . with a person, knowing the person to be, without regard
to legitimacy . . . [t]he [defendant’s] . . . stepchild[.]” Tenn. Code Ann. § 39-15-302(a)(1).

       Taken in the light most favorable to the State, the evidence shows that on the night
of February 12, 2007, the victim woke up with the appellant’s tongue in her vagina. The
victim’s mother witnessed the incident. Sergeant Pafford and Lieutenant Allen testified that
the appellant told them during his second interview, “I don’t know why I touched the girl.”
Cendy Curtis said that she spoke with the appellant after his second interview and that he told
her he did not know “why he had done that” to the victim. As stated previously, the
credibility of the witnesses is within the purview of the jury. See State v. Millsaps, 30
S.W.3d 364, 368 (Tenn. Crim. App. 2000) (stating that “the weight and credibility of the
witnesses’ testimony are matters entrusted exclusively to the jury as the trier[ ] of fact”). In
the instant case, the jury obviously resolved the issue of witness credibility in favor of the
State. Therefore, the evidence is sufficient to support the convictions.

                         B. Cross-examination About Photographs

       Next, the appellant contends that the trial court erred by refusing to allow him to
question the victim about nude photographs taken of her by William Tindall Todd, a
registered sex offender, when she was about ten years old. The appellant contends that he
should have been able to cross-examine the victim about the photographs pursuant to Rule
412, Tennessee Rules of Evidence, in order to “explore the possibility” that Todd, not the
appellant, raped the victim on February 12, 2007. The State contends that the trial court
properly refused to allow the appellant to question the victim about the photographs. We
agree with the State.

        Before trial, the appellant filed a motion requesting that he be allowed to cross-
examine the victim about the photographs. The appellant argued that the evidence was
admissible pursuant to Rule 412(c)(1), Tennessee Rules of Evidence, which provides that
evidence of a victim’s sexual behavior may be admissible in order to protect the
constitutional rights of the accused. During a hearing on the motion, the appellant informed
the trial court that the photographs were relevant to show that the victim had contact with
Todd when she was ten years old and that it may have been Todd who raped the victim in
2007 when she was twelve years old. The trial court overruled the motion, stating, “The
Court does not see how that could be relevant concerning whether or not this particular
Defendant did or did not commit the criminal sexual conduct.”

       Tennessee Rule of Evidence 412 acknowledges that under certain circumstances, the

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exclusion of evidence about a victim’s sexual behavior may violate a defendant’s right of
confrontation, his right to present a defense, and, more broadly, his right to a fair trial.
Accordingly, Tennessee Rule of Evidence 412(b) permits the introduction of reputation or
opinion evidence of a victim’s sexual behavior only if “admitted in accordance with the
procedures in subdivision (d) of this Rule and required by the Tennessee or United States
Constitution.” Subsection (c)(1) of the Rule more extensively provides that “[e]vidence of
specific instances of a victim’s sexual behavior is inadmissible unless admitted in accordance
with the procedures in subdivision (d) of this Rule, and the evidence is . . . [r]equired by the
Tennessee or United States Constitution[.]” If evidence of a victim’s sexual behavior
satisfies either subsection (b) or subsection (c), Tennessee Rule of Evidence 412(d)(4) further
requires as a prerequisite to admissibility a determination by the court that the probative
value of the evidence outweighs its unfair prejudice to the victim.

        Rule 412 is a rule of relevance. State v. Brown, 29 S.W.3d 427, 430 (Tenn. 2000).
Relevant evidence is “evidence having any tendency to make the existence of any fact that
is of consequence to the determination of the action more probable or less probable than it
would be without the evidence.” Tenn. R. Evid. 401. It is within the trial court’s discretion
to determine whether the proffered evidence is relevant; thus, we will not overturn the trial
court’s decision absent an abuse of discretion. See State v. Forbes, 918 S.W.2d 431, 449
(Tenn. Crim. App. 1995).

        Turning to the instant case, we initially note that the appellant did not make an offer
of proof regarding the victim’s proposed cross-examination testimony. See Tenn. R. App.
P. 36(a). In any event, we agree with the trial court that the evidence was not relevant. The
fact that Todd may have taken nude photographs of the victim when she was ten years old
was not relevant to the issue of the appellant’s guilt or innocence in raping the victim two
years later. Therefore, the trial court did not err by overruling the appellant’s motion.

                                 C. Consecutive Sentencing

       Finally, the appellant contends that the trial court erred by ordering him to serve his
twenty-five-year sentence consecutively to a prior sentence. The State contends that the trial
court properly sentenced the appellant. We agree with the State.

       No witnesses testified at the appellant’s sentencing hearing. However, the State read
into evidence a letter written by the victim. In the letter, the victim stated, “‘I can finally
come home from school and not worry about my dad touching me or beating me until I’m
black and blue to the point that I can’t sit down.’” The victim also stated that she was “free
now from all that horror and pain. I don’t have to cry myself to sleep or wear blue jeans to
bed.” The victim stated that the appellant had “messed things up” for her but that she was

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finally getting through her past. She stated that she hoped the appellant had learned his
lesson and that he served his time in prison “slowly.”

        The State introduced the appellant’s presentence report into evidence. According to
the report, the then thirty-eight-year-old appellant was divorced and a high school graduate.
In the report, the appellant described his mental and physical health as “fair” and stated that
he did not abuse alcohol or use illegal drugs. The appellant also stated in the report that he
worked as a roofer for Wade Dortch Roofing from April 2008 to April 2010 and October
2002 to October 2007 and that he worked as a truck driver for Werner Enterprises from
October 2007 to February 2008. The report shows that the appellant was convicted of rape
and incest against the victim’s stepsister prior to his being convicted in this case and that he
received an effective ten-year sentence. According to the report, those offenses occurred on
February 24, 2010. The appellant attached a handwritten statement to the report in which he
stated that he did not commit the offenses and that his stepdaughters lied about the abuse
because they did not want the family to move from Big Sandy.

       The trial court merged the incest conviction into the conviction for rape of a child and
noted that the mandatory sentence for rape of a child was twenty-five years. See Tenn. Code
Ann. § 39-13-522(b)(2)(A). Regarding consecutive sentencing, the trial court determined
that the appellant should serve his twenty-five-year sentence consecutively to the ten-year
sentence because the time span of the undetected sexual activity was “great in this case. I
want to think seven (7) or eight (8) years[.]” The trial court noted that the appellant was the
victim’s stepfather and concluded that the victim’s letter supported a finding of residual
physical or mental damage to the victim.

        Previously, appellate review of the length, range, or manner of service of a sentence
was de novo with a presumption of correctness. See Tenn. Code Ann. § 40-35-401(d).
However, our supreme court recently announced that “sentences imposed by the trial court
within the appropriate statutory range are to be reviewed under an abuse of discretion
standard with a ‘presumption of reasonableness.’” State v. Susan Renee Bise, ___ S.W.3d
___, No. E2011-00005-SC-R11-CD, 2012 Tenn. LEXIS 645, at *76 (Knoxville, Sept. 26,
2012). In conducting its review, this court considers the following factors: (1) the evidence,
if any, 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) evidence and information offered by the
parties on enhancement and mitigating 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 by the appellant in his own behalf; and (8) the potential for
rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102, -103, -210; see also State
v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991). The burden is on the appellant to demonstrate

                                              -9-
the impropriety of his sentence. See Tenn. Code Ann. § 40-35-401, Sentencing Comm’n
Cmts.

        Generally, “[w]hether sentences are to be served concurrently or consecutively is a
matter addressed to the sound discretion of the trial court.” State v. Adams, 973 S.W.2d 224,
230-31 (Tenn. Crim. App. 1997). Tennessee Code Annotated section 40-35-115(b) contains
the discretionary criteria for imposing consecutive sentencing. The trial court may impose
consecutive sentencing upon finding the existence of any one of the criteria. In the instant
case, the trial court imposed consecutive sentencing upon finding that the appellant was

              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 [appellant’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.

Tenn. Code Ann. § 40-35-115(b)(5).

       The appellant argues that the time span in which the alleged offenses against the
victim and her stepsister went undetected was not especially lengthy, occurring for about
three years, not seven or eight years as the trial court stated. The appellant also argues that
there was no evidence of mental or physical injury to the victim.

        The appellant was the stepfather of the victim and her stepsister. Regarding the nature
and scope of the sexual contact, the record does not reveal the specific facts surrounding the
appellant’s convictions for abusing the victim’s stepsister. However, the appellant was
convicted of sexually penetrating the victim’s stepsister, and the evidence in the instant case
shows that he performed cunnilingus on the victim and held her down when she tried to push
him away. As to the time span of the abuse, nothing demonstrates that the appellant abused
the victim or her stepsister more than one time. However, the victim suggested in her letter
to the trial court that there had been ongoing inappropriate touching. The victim also stated
in her letter that she was free from the “horror and pain” caused by the appellant, that she
used to cry herself to sleep, and that she was slowly getting though her past. Therefore, the
record supports that the victim suffered from residual mental damage. We conclude that the
trial court properly imposed consecutive sentencing.

      That said, the State argues that the trial court improperly merged the appellant’s
conviction for incest into his conviction for rape of a child. We agree with the State. See

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State v. Nancy Blue, No. W2008-00187-CCA-R3-CD, 2009 Tenn. Crim. App. LEXIS 297,
at *6 (Jackson, Apr. 23, 2009) (stating that because the offenses of rape and incest are
“legally and factually distinct,” the trial court erred by merging the defendant’s convictions).
Therefore, the appellant’s conviction for incest is reinstated.

        Although not raised by the appellant, we note that the trial court sentenced him to
twenty-five years for the rape of a child conviction pursuant to Tennessee Code Annotated
section 39-13-522(b)(2)(A), which provides that the minimum mandatory sentence for a
defendant convicted of the offense is twenty-five years. However, that provision of the
statute did not go into effect until July 1, 2007, almost five months after the appellant
committed the offense. Therefore, upon remand, the trial court is to resentence him for both
convictions.

                                        III. Conclusion

       Based upon the record and the parties’ briefs, we conclude that the evidence is
sufficient to support the appellant’s convictions, that the trial court did not err by refusing to
allow the appellant to question the victim about nude photographs, and that the trial court did
not err by ordering consecutive sentencing. However, the trial court erred by merging the
appellant’s convictions and by sentencing him to twenty-five years for the rape of a child
conviction pursuant to Tennessee Code Annotated section 39-13-522(b)(2)(A). Therefore,
the appellant’s incest conviction is reinstated, and the case is remanded to the trial court for
resentencing for both convictions.


                                                      _________________________________
                                                      NORMA McGEE OGLE, JUDGE




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