             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT NASHVILLE                  FILED
                           JUNE 1998 SESSION
                                                              July 15, 1999

                                                          Cecil W. Crowson
STATE OF TENNESSEE,           )                          Appellate Court Clerk
                              )
             Appellee,        )    No. 01C01-9708-CC-00382
                              )
                              )    Hickman County
v.                            )
                              )    Honorable Cornelia A. Clark , Judge
                              )
ROBERT WILKES,                )    (Aggravated Sexual Battery)
                              )
             Appellant.       )


For the Appellant:                 For the Appellee:

John H. Henderson                  John Knox Walkup
District Public Defender           Attorney General of Tennessee
P.O. Box 68                               and
Franklin, TN 37065-0068            Lisa A. Naylor
                                   Assistant Attorney General of Tennessee
                                   425 Fifth Avenue North
                                   Nashville, TN 37243-0493

                                   Joseph D. Baugh, Jr.
                                   District Attorney General
                                           and
                                   Ronald L. Davis
                                   Assistant District Attorney General
                                   Williamson County Courthouse
                                   P.O. Box 937
                                   Franklin, TN 37065-0937




OPINION FILED:____________________

CONVICTIONS AFFIRMED; SENTENCES MODIFIED

Joseph M. Tipton
Judge
                                            OPINION



                The defendant, Robert W ilkes,1 appeals as of right from his convictions by

a jury in the Hickman County Circuit Court of six counts of aggravated sexual battery, a

Class B felony. For each of the six counts, the trial court sentenced the defendant to

serve thirty years in the Department of Correction as a Range III, persistent offender.

The trial court ordered the sentences to run consecutively to each other and to the

defendant’s current prison sentences. The trial court assessed a fine of twenty-five

thousand dollars for each count for a total fine of one hundred fifty thousand dollars.



                The defendant raises four issues on appeal. He contends that:

                (1) the evidence is insufficient to support the convictions;

                (2) the trial court erred in not acquitting the defendant of counts
                four and five because count four merely corroborated count
                two and count five merely corroborated count three rather than
                establishing separate offenses;

                    (3) the trial court erred in enhancing the sentence of the
                    defendant from twenty to thirty years and in ordering the six
                    thirty-year sentences to run consecutively to each other and to
                    the sentence the defendant is already serving; and

                    (4) the trial court erred in assessing a twenty-five thousand
                    dollar fine per count because the defendant is indigent.

We have reviewed the record on appeal, the briefs of the parties, and the applicable

law, and we hold that the evidence is sufficient to support the defendant’s convictions.

We affirm the trial court’s imposition of the maximum thirty-year sentence for each

count, but we modify the trial court’s sentence by ordering that counts one through

three run concurrently to each other and that counts four through six run concurrently to

each other but consecutively to counts one through three for an effective sixty-year

sentence. All six counts will remain consecutive to the defendant’s previously imposed




                1
                  We note that the defendant’s name appears as Robert Wilks in both briefs and
throughout the record. However, absent an order of amendment, this court uses the name set forth in the
chargin g instrum ent.

                                                   2
sentence. We also modify the defendant’s fine to five thousand dollars for each of the

six counts or thirty thousand dollars for the total fine imposed.



              David Bruce Westbrooks, an internal affairs investigator for the

Department of Correction, testified that in July and August of 1995, the defendant was

incarcerated in the minimum security annex of Turney Center Industrial Prison and

Farm. He testified that the annex’s visiting gallery contained a “kid’s corner,” which had

a playhouse, games, and books for the children visiting inmates. Westbrook stated that

during visitation, two correctional officers and one administrative staff person worked in

the annex. He testified that officers and staff workers could supervise the visiting

gallery, including the kid’s corner, from an operations cubical, but due to their various

duties throughout the annex, the operations cubical was not staffed continuously during

visitation.



              Sheila Sutton Durham testified that she worked as a counselor at Turney

Center. As the custodian of the visitation records in the annex, Durham testified that

the file on William Lee Bramlett, an inmate, contained visitation applications for

Bramlett’s two children: a son, K.B., whose birthday was listed on the application as

June 11, 1989, and a daughter, J.B., whose birthday was listed on the application as

November 1988. She stated that a copy of K.B.’s birth certificate was attached to his

application and that the birth certificate listed his birthday as June 11, 1988. She

testified that J.B.’s application did not have a birth certificate attached to it. She related

that on visitation days, the defendant worked in the kid’s corner of the visiting gallery.

While working in this capacity, the defendant would turn on the television or pass out

books and toys to the children visiting inmates. Durham testified that the defendant’s

name was not on the inmate visitation sign-in sheet for July 22, 1995, but it did appear

on the August 5 and August 12 sheets. Durham stated that while on duty at the annex

on August 5 and August 12, she would have gone into the visiting gallery ten to twenty



                                              3
times each day. She testified that during the time she was in the visiting gallery, she

never saw any impropriety on the part of the defendant.



              Joy Lamberson testified that on July 22, 1995, she came to the annex’s

visiting gallery to visit her brother, who was an inmate. While in the visiting gallery, she

stated that she saw the defendant holding a boy on his lap. Lamberson testified that

the defendant had his hands on the boy’s genital area, rubbing it, and that the

defendant was rubbing his own genital area against the boy’s bottom--a movement she

described as hunching. She testified that later that day, she saw the defendant pick up

a little girl, slip his hands inside of her shorts, and move his thumbs between her legs.

Lamberson identified the boy as K.B. and the girl as J.B. She stated that she did not

report these incidents until August 12 because she feared the possible repercussions

for her brother.



              Kimberly Brown, daughter of Joy Lamberson, testified that she visited her

uncle at the annex on July 22, 1995. Brown related that while sitting in the visitation

gallery, she saw the defendant sitting in a chair with his legs spread and with a little boy

sitting on the same chair in front of him. She testified that the defendant was fondling

the boy’s crotch and rubbing his own genital area against the boy’s bottom. She

testified that while this incident was taking place, a guard was sitting next to the

defendant reading a paper. Brown said that later she saw the defendant lift a little girl

up to reach something on top of a cabinet in the kid’s corner. She testified that while

lifting her, the defendant put his fingers under her dress and “played” with her. Brown

identified the boy as K.B. and the girl as J.B. She testified that because she did not

want to cause any trouble for her uncle, she waited to report the incidents in a letter to

the warden dated August 13.




                                             4
              Constance Elaine Allen testified that she was at Turney Center Annex

visiting her husband on August 5, 1995. She stated that while she was in the visiting

gallery, she saw the defendant sitting with a little boy on his lap. She testified that the

defendant placed his hand inside the boy’s shorts and began touching the boy’s

genitals. She stated that later that day she saw the defendant and the boy by a closet

and that the defendant was touching the boy’s genital area on the outside of his shorts.

Allen identified the boy as K.B. Allen testified that she reported these incidents the

following Saturday, August 12, 1995.



              Kristen Lloyd testified that in August of 1995, she went with her mother

and her sister-in-law to visit her brother, an inmate at Turney Center. She testified that

she asked the man working in the kid’s corner to tie a large piece of white paper around

her waist. She said that while he was doing this, he touched her in her “private place.”

She identified the defendant as this man. When asked to explain to the jury which

private place she meant, she stated, “The Front.” She further explained that as the

defendant was tying the white paper around her waist, she felt the defendant’s hand

rubbing her under her clothes. She stated that she told her mother about the incident

on the way home from Turney Center that day. Kristen Lloyd testified that her birthday

was March 7, 1986 and that she was currently ten years old.



              Donna Lloyd testified that she and her daughter, Kristen Lloyd, visited her

son at Turney Center on August 5, 1995. She stated that she was sitting in the picnic

area outside the visiting gallery when Kristen went inside the visiting gallery for a few

minutes and then came back out. She stated that when Kristen came back out, she

looked as if she were about to cry. She testified that Kristen told her about the incident

after they left Turney Center.




                                              5
              Louise Timmons testified that she was at Turney Center Annex on August

12, 1995, visiting her son. She stated that while in the visiting gallery, she saw the

defendant sitting at a table with a little boy on his lap. Timmons said the defendant was

touching the boy’s genitals. She testified that when the defendant noticed that she was

watching him, he put the boy down. She related that when she reentered the visiting

gallery later that day, she saw the defendant lifting a little girl up to reach the top of a

cabinet. She stated that the girl had her feet on the second shelf of the cabinet and her

legs were apart. Timmons testified that the defendant had his hands inside the girl’s

shorts, and he was moving his hand up and down in her genital area. She said that

when the defendant realized she was looking at him, he sent the girl outside. She

stated that she immediately reported the incident to a guard. Timmons identified the

boy as K.B. and the girl as J.B.



              Bob Schlafly, an agent with the Tennessee Bureau of Investigation,

testified that he investigated the complaints made against the defendant. He stated

that he had obtained the birth certificates of K.B. and J.B. from the records division in

Nashville, and these were entered into the record as exhibits. These exhibits show

K.B.’s date of birth to be June 11, 1988 and J.B.’s date of birth to be November 27,

1989.



              Lee Bramlett testified that he is an inmate at Turney Center and that he is

the father of K.B. and J.B. He testified that K.B. and J.B. visited him at Turney Center

on July 22, August 5, and August 12, 1995. He related that K.B. was eight years old

and J.B. was six and one-half at the time of the trial. He stated that when the children

visited him, he was with them almost the entire time they were there. He stated that

while he was preparing lunch in the picnic area, the children would run into the visitation

gallery and then run back out to the picnic area but that they were never in the visitation

gallery without him for more than a “split-second.” He said that he did not recall K.B.



                                               6
ever sitting on the defendant’s lap and that he remembered seeing the defendant pick

up J.B. only once while he was standing beside the defendant. He testified that he

never saw the defendant have any sexual contact with his children.



                Herbert Mays, an inmate at Turney Center, testified that he was president

of an inmate organization called P.A.C.E. He stated that P.A.C.E. furnished the toys,

coloring supplies, and movies for the kid’s corner of the visiting gallery. He testified that

the defendant was selected by P.A.C.E. to work in the kid’s corner because he had no

record of previous sex offenses. He stated that during visitation, an officer would

remain in the observation cubicle, and if that officer had to leave, he or she would have

another officer come to the observation cubicle. He related that he had visitors almost

every Saturday, and he was probably in the visitation area on July 22, August 5, and

August 12. He testified that he had never seen the defendant involved in any sexual

impropriety.



                William Embry, an inmate at Turney Center, testified that he was in the

visitation area on July 22 and August 5, 1995. He stated that he generally remained

inside the visiting gallery during his visits except that he would eat lunch in the picnic

area. He testified that he and his visitors would always sit at a table next to the

defendant. He testified that he did not recall the defendant ever sitting down reading to

the children.



                James Turner, an inmate at Turney Center, testified that he was most

likely in and out of the visiting gallery on July 22, August 5 and August 12. He stated

that the defendant would sometimes read books to the children. He stated that he had

never seen any sexual impropriety on the part of the defendant while he was in the

visiting gallery.




                                              7
              Pete Lomax, a correctional officer at Turney Center, testified that while

monitoring the visiting gallery on August 12, he saw K.B. with the defendant but that he

has never seen anything sexual occur between the defendant and K.B. or anyone else.

He stated that he never saw Kristin Lloyd close to the defendant. He testified that while

on visitation duty, a correctional officer would be in and out of the observation cubicle.

He related that because of the number of other responsibilities the officers had while

working at the annex and because of the number of inmates and visitors in the visiting

gallery, it would be impossible to know everything that occurred during visitation.



              Nicky Jordan, an inmate relations coordinator assigned to Turney Center,

testified that he was on duty in the visitation area on July 22, 1995. He stated that while

he was on duty, he would either be in the picnic area or sitting at the defendant’s table

because it was beside the window that overlooked the picnic area. He testified that on

one occasion while he was sitting at the table with the defendant, K.B. and J.B. ran up

to them and climbed onto their laps. He stated that he and the defendant both put the

children down. He testified that he then told the defendant that he wished the children

would not climb onto their laps because one day someone might get a negative

impression. He testified that this was the only occasion that he ever saw a child sit in

the defendant’s lap. He stated that he did not see the defendant lift J.B. He stated that

he had never seen the defendant involved in any misconduct. Jordan testified that he

knew that the defendant had lent money to several of the inmates in Turney Center and

that the money went to the defendant’s family when the inmates paid him back.



              At the close of its case-in-chief, the state elected the first incident related

by Constance Elaine Allen for count six of the indictment, and the trial judge permitted

the state to change the date in count six from July 22 to August 5. Count one of the

indictment initially charged the defendant with rape of a child, but the state amended




                                              8
the charge to aggravated sexual battery at the end of its case-in-chief. The jury

convicted the defendant of six counts of aggravated sexual battery.



                         I. SUFFICIENCY OF THE EVIDENCE

             The defendant contends that the evidence fails to show beyond a

reasonable doubt that he had sexual contact with any of the victims, although he does

not point to any specific shortcoming in the evidence. Aggravated sexual battery is

“unlawful sexual contact with a victim by the defendant” when “[t]he victim is less than

thirteen (13) years of age.” Tenn. Code Ann. § 39-13-504(a)(4).

             “Sexual contact” includes the intentional touching of the
             victim’s, the defendant’s, or any other person’s intimate parts,
             or the intentional touching of the clothing covering the
             immediate area of the victim’s, the defendant’s, or any other
             person’s intimate parts, if that intentional touching can be
             reasonably construed as being for the purpose of sexual
             arousal or gratification.

Tenn. Code Ann. § 39-13-501(6). “‘Intimate parts’ includes the primary genital area,

groin, inner thigh, buttock or breast of a human being.” Tenn. Code Ann. § 39-13-

501(2).



             The standard of review when the sufficiency of the evidence is questioned

on appeal 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, 99 S. Ct.

2781, 2789 (1979). This means that we do not reweigh the evidence but presume that

the jury has resolved all conflicts in the testimony and drawn all reasonable inferences

from the evidence in favor of the state. See State v. Sheffield, 676 S.W.2d 542, 547

(Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).



             Relative to count one of the amended indictment, Kristen Lloyd testified

that in August 1995, the defendant touched her “private place” under her clothing.



                                            9
With regard to count two of the indictment, Louise Timmons testified that on August 12,

1995, she saw the defendant touch K.B.’s genitals. Relating to count three of the

indictment, Joy Lamberson and Kimberly Brown testified that they saw the defendant

touch J.B. under her clothing in the genital area. Relative to count four of the

indictment, Louise Timmons testified that on August 12, 1995, she saw the defendant

moving his hand up and down inside J.B.’s shorts in her genital area. Regarding count

five of the indictment, Joy Lamberson and Kimberly Brown testified that they observed

the defendant touching K.B.’s genital area and rubbing his own genital area against

K.B.’s bottom. As to count six of the indictment, Constance Elaine Allen testified that

on August 5, 1995, she saw the defendant put his hand inside K.B.’s shorts and touch

his genitals. Viewing the evidence in the light most favorable to the state, this

testimony is sufficient to show that the defendant touched the victims’ intimate parts.



              The evidence is also sufficient for the jury to conclude that the defendant’s

purpose for the touching was sexual arousal or gratification. The repetitive nature of

the conduct occurring on three different dates with three different victims weighs against

accident or inadvertence. See State v. Binion, 947 S.W.2d 867, 872 (Tenn. Crim. App.

1996) (stating that the victim’s testimony reflected that the touching was purposeful and

not accidental). Also, the very nature of how and where the defendant touched the

victims indicates that the touches were for sexual purposes. Furthermore, Louise

Timmons testified that when the defendant noticed that she was watching him touch

K.B.’s genitals, he put K.B. down from his lap. She also stated that when the defendant

realized that she had seen him touching J.B.’s genital area, he sent J.B. outside. From

this evidence, the jury could reasonably infer that the defendant did not want anyone to

see him touching the children in this way. In State v. Hayes, 899 S.W.2d 175, 179

(Tenn. Crim. App. 1995), this court held that one factor from which the jury could infer

the defendant’s purpose of sexual gratification was the timing of the incidents--the fact

that the defendant waited until the victim’s mother was out of the house. In the present



                                            10
case, the fact that the defendant wanted to touch the victims when no one was looking

shows that his purpose was for sexual arousal or gratification. Thus, the evidence is

sufficient to support the convictions.



                               II. SEPARATE OFFENSES

              The defendant contends that the trial court erred in denying his motion for

a judgment of acquittal because the evidence relative to counts two and six merely

corroborates the offense charged in count five, and the evidence relative to count four

merely corroborates the offense charged in count three. Thus, the defendant argues

that counts two, five and six are really the same incident and that counts three and four

are the same incident. The defendant argues that to be charged and convicted multiple

times for these two incidents violates the double jeopardy and due process provisions

of the United States and Tennessee Constitutions.



              In reviewing a motion for a judgment of acquittal, the standard for the

appellate court is the same as that for the trial court when considering the motion at the

close of evidence. The court must evaluate the evidence in the light most favorable to

the state, draw “all reasonable and legitimate inferences . . . from the evidence . . . in

favor of the state’s theory” and dismiss all conflicting evidence presented by the

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

Thompson, 549 S.W.2d 943, 946 (Tenn. 1977). The defendant seeks to have this

court disregard the testimony as to the dates that the witnesses saw the defendant

commit the offenses when considering the similarity of the offenses in the separate

counts. The state’s witnesses testified to the specific dates on which they observed the

defendant commit the offenses. They were separate dates. Viewing this evidence in

the light most favorable to the state, the trial court properly denied the defendant’s

motion for a judgment of acquittal.




                                            11
                   III. MAXIMUM AND CONSECUTIVE SENTENCES

              At the sentencing hearing, the trial court sentenced the defendant as a

Range III, persistent offender to the maximum sentence of thirty years per count. The

trial court ordered the defendant to serve all six thirty-year sentences consecutively to

each other for a total sentence of one hundred eighty years. The trial court ordered the

defendant to serve the sentences consecutively to the sentences he is currently serving

in the Department of Correction.



              Appellate review of sentencing is de novo on the record with a

presumption that the trial court’s determinations are correct. Tenn. Code Ann. § 40-35-

401(d). As the Sentencing Commission Comments to this section note, the burden is

now on the defendant to show that the sentence is improper. This means that if the

trial court follows the statutory sentencing procedure, makes findings of fact that are

adequately supported by the record and gives due consideration and proper application

of the factors and principles that are relevant to sentencing under the 1989 Sentencing

Act, we may not disturb the sentence even if a different result is preferable. State v.

Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).



              “However, the presumption of correctness which accompanies the trial

court’s action is conditioned upon the affirmative showing in the record that the trial

court considered the sentencing principles and all relevant facts and circumstances.”

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In this respect, for the purpose of

meaningful appellate review,

              the trial court must place on the record its reasons for
              arriving at the final sentencing decision, identify the
              mitigating and enhancement factors found, state the specific
              facts supporting each enhancement factor found, and
              articulate how the mitigating and enhancement factors have
              been evaluated and balanced in determining the sentence.
              Tenn. Code Ann. § 40-35-210(f).

State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1994).



                                            12
              The sentence to be imposed by the trial court for a Class B felony is

presumptively the minimum in the range unless there are enhancement factors present.

Tenn. Code Ann. § 40-35-210(c). Procedurally, the trial court is to increase the

sentence within the range based upon the existence of enhancement factors and, then,

reduce the sentence as appropriate for any mitigating factors. Tenn. Code Ann. § 40-

35-210(d),(e). For the purpose of appellate review, the trial court must preserve in the

record the factors it found to apply and the specific findings of fact upon which it applied

the sentencing principles to arrive at the sentence. See Tenn. Code Ann. § 40-35-

209(c), 210(f).



                               A. MAXIMUM SENTENCE

              The defendant argues that the trial court erred in rejecting two of the

mitigating factors he presented at the sentencing hearing. For this reason, the

defendant contends that the trial court abused its discretion in sentencing him to the

maximum sentence or to any term in excess of twenty years for each count.



              As a Range III, persistent offender convicted of a Class B felony, the

possible range of punishment for the defendant was twenty to thirty years. See Tenn.

Code Ann. § 40-35-112(c)(2). The trial court imposed the maximum sentence of thirty

years, finding the following three enhancement factors as listed in Tenn. Code Ann. §

40-35-114:

              (1) The defendant has a previous history of criminal
              convictions or criminal behavior in addition to those necessary
              to establish the appropriate range;

              (6) The personal injuries inflicted upon . . . the victim [were]
              particularly great; [and]

              (15) The defendant abused a position of public or private trust
              ....


Through our de novo review of the record, we believe that the trial court properly

applied factors (1) and (15) but erred by applying factor (6).


                                            13
                With regard to enhancement factor (1), the trial court found that the

defendant had an extensive history of criminal convictions well beyond that needed to

qualify him as a Range III, persistent offender. Certified copies of prior convictions

show the defendant had been convicted in 1989 of two counts of grand larceny, a Class

D felony; sixteen counts of obtaining money in an amount over two hundred dollars

under false pretenses, a Class D felony; seven counts of the attempt to obtain money

by false pretenses, a Class E felony; and twenty-five counts of mishandling a dead

body, a misdemeanor. The defendant committed the offenses over a number of years,

and they arose from the defendant’s involvement in the funeral business. The

presentence report also reflects that the defendant was convicted in 1979 of one count

of larceny of drugs2 and two counts of possession of schedule II drugs for resale, a

Class C felony. Needless to say, factor (1) is entitled to considerable weight.



                    Enhancement factor (6) requires a finding that the personal injury suffered

by the victim was particularly great. Every instance of sexual battery presents the

potential for mental and physical injury, and the legislature considered the trauma

inherent within these acts when it placed sexual battery within the second highest

felony class. State v. Kissenger, 922 S.W.2d 482, 487 (Tenn. 1996). Also, a child

victim’s age alone does not render the injuries received particularly great because the

legislature has already factored in the victim’s age as an aggravating factor in

aggravated sexual battery. See State v. Melvin, 913 S.W.2d 195, 204 (Tenn. Crim.

App. 1995). For enhancement factor (6) to apply, the injuries to the victims must be

greater than those which ordinarily occur in this type of crime. State v. Hoyt, 928

S.W.2d 935, 948 (Tenn. Crim. App. 1995); Melvin, 913 S.W.2d at 204.



                With regard to enhancement factor (6), the trial court cited no evidence to

show that the victims have experienced any psychological injury. The trial court stated


                2
                 The presentence report does not indicate the monetary value of these stolen drugs, and
a judgment for this conviction is not contained within the record.

                                                  14
that when sexual battery is committed upon victims under thirteen years of age, “that’s

generally deemed more than enough proof to show psychological or personal injury as

opposed to bodily injury.” Though psychological and emotional injury do constitute

personal injury under Tenn. Code Ann. § 40-35-114(6), the state has the burden of

proving that these types of injuries were “particularly great” before this factor can apply.

Hoyt, 928 S.W.2d at 948. In the present case, the trial court cited no specific facts to

support this enhancement factor, and we find none in the record. We note, though, that

the trial court gave this factor little weight.



               Enhancement factor (15) applies when the defendant abuses a position of

public or private trust. A position of trust exists when the defendant’s formal or informal

relationship with the victim “promoted confidence, reliability, or faith.” Kissenger, 922

S.W.2d at 488. The trial court found enhancement factor (15) to be supported by trial

testimony which established that the defendant was put in charge of the kid’s corner by

an inmate organization called P.A.C.E. that sought to facilitate interaction between the

inmates and their children. In this capacity, the defendant met with the visiting children

who relied upon him to distribute books and coloring supplies and to operate the

television. We believe that factor (15) applies.



               The trial court rejected the mitigating factors offered by the defendant at

the sentencing hearing, finding that no mitigating factors existed. The defendant

argued that his criminal conduct did not cause or threaten serious bodily injury. See

Tenn. Code Ann. § 40-35-113(1). While noting that it was not using bodily injury as an

enhancing factor, the trial court stated:

                      I can’t say unequivocally that your conduct did
                      not cause or threaten bodily injury. You have
                      been convicted of six counts. I have no way of
                      knowing what other things might have or could
                      have taken place had you not been observed or
                      caught.




                                                  15
The trial court did not refer to any factual findings as to bodily injury. The trial court

may not use speculation about unproven or potential crimes to reject the defendant’s

mitigating factor. In State v. Hayes, 899 S.W.2d 175, 187 (Tenn. Crim. App. 1995), the

defendant was convicted of aggravated sexual battery for touching his twelve-year-old

daughter’s breast once on the outside of her clothing and once under her clothing.

This court concluded that the defendant should have received the benefit of mitigating

factor (1) because his criminal conduct was not aggravated. Id. at 179. Likewise, in the

instant case, there was no evidence that the defendant caused or threatened bodily

injury. Thus, mitigating factor (1) should have been weighed in establishing the

sentence.



              The defendant also offered his college education and post-graduate

training in embalming as a mitigating factor. See Tenn. Code Ann. § 40-35-113(13).

The trial court rejected this factor, finding that the defendant’s education was a factor

weighing against him rather than for him because he used this training in the field of

undertaking to perpetrate the crimes for which he was serving his initial sentence. This

finding is supported by the certified copies of the defendant’s prior convictions and by

the presentence report. As previously noted, it is within the trial court’s discretion to

determine the weight to be afforded an existing factor so long as the purposes and

principles of the 1989 Sentencing Act are served, and the trial court’s findings are

adequately supported by the record. Tenn. Code Ann. § 40-35-210, Sentencing

Commission Comments; Moss, 727 S.W.2d at 237; see Ashby, 823 S.W.2d at 169.

We do not believe that the trial court abused its discretion. Although we agree with the

defendant that the absence of actual or threatened serious bodily injury should have

been considered as a mitigating factor, we believe that even considering this factor, the

record fully supports the trial court’s imposition of thirty-year sentences.




                                              16
                           B. CONSECUTIVE SENTENCING

              The defendant contends that the trial court erred in ordering the

sentences to be served consecutively to each other and to his previous sentences. The

defendant claims that the criteria relied upon by the trial court in ordering the

consecutive sentences was not established by a preponderance of the evidence.



              Consecutive sentencing is guided by Tenn. Code Ann. § 40-35-115(b),

which states in pertinent part:

              The court may order sentences to run consecutively if the court
              finds by a preponderance of the evidence that:

              (1) The defendant is a professional criminal who has knowingly
              devoted such defendant’s life to criminal acts as a major
              source of livelihood;

              (2) The defendant is an offender whose record of criminal
              activity is extensive; [or]

              ....

              ....

              (5) 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 the 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 victims.

Also, “consecutive sentences cannot be imposed unless the terms reasonably relate to

the severity of the offenses committed and are necessary in order to protect the public

from further serious criminal conduct by the defendant.” State v. Wilkerson, 905

S.W.2d 933, 938 (Tenn. 1995).



              In the present case, the trial court found the defendant to be a

professional criminal devoting himself to criminal acts as a major source of livelihood.

See Tenn. Code Ann. § 40-35-115(1). To support this finding, the trial court cited this

court’s approval of such status assigned to the defendant by the Robertson County trial



                                             17
court regarding his 1989 convictions. Looking to the former convictions, the trial court

had already noted, with regard to the enhancement factor (1), that the offenses

occurred over a sustained period of time and represented an elaborate process of

defrauding persons and treating inappropriately both the deceased and their families

who were grieving. With respect to the defendant’s education, the trial court recognized

that the defendant had used the profession of undertaking to abuse the rights of others.

As the trial court noted, though, the defendant had not been a professional criminal for

the years he had served in prison. The record reflects that at the time of sentencing,

the defendant had been incarcerated for about eight years. Needless to say, the

defendant has not knowingly devoted the past eight years to criminal acts as a major

source of his livelihood. Given the amount of time that has elapsed since the defendant

was proven to have devoted himself to criminal acts as a major source of livelihood, we

do not believe that the defendant was shown to be a professional criminal for the

purposes of sentencing in this case. In any event, the record reflects that the trial

court’s sentencing determination would have been the same regardless of the finding

under subsection (1).



              The trial court found that the defendant had an extensive criminal record.

See Tenn. Code Ann. § 40-35-115(2). The trial court had explored this criminal record

when discussing enhancement factor (1), finding that over forty convictions remained

after excluding the five used to determine the defendant’s sentencing range. The

presentence report and the certified copies of the defendant’s prior convictions

overwhelmingly support this finding.



              Finally, the trial court found that the defendant had been convicted of two

or more offenses involving sexual abuse of a minor and that the relationship between

the defendant and the victims presented an aggravating circumstance. See Tenn.

Code Ann. § 40-35-115(5). The court stated that the defendant held a position of



                                            18
responsibility with respect to the kid’s corner. That position was given to him by his

fellow inmates, and it gave him special rights to contact with these children. In Hayes,

this court found that although the state argued that a relationship existed because the

defendant was the victim’s father, the remaining elements of subsection (5) were not

met. 899 S.W.2d at 187. “There was no significant time span of undetected sexual

activity, the nature of the criminal conduct was nonaggravated, and the extent of

residual damage to the victim caused by the conduct is not sufficiently shown.” Id. The

present case mirrors Hayes. The offenses occurred on three Saturdays in a four week

time span, the criminal conduct was similarly nonaggravated, and no residual damage

has been presented. Furthermore, the relationship between the defendant and the

victims in the instant case is even more attenuated than in Hayes. The record does not

support a finding under subsection (5).



              We conclude that the record supports the trial court’s findings under

subsection -115(2). However, the record reflects that the trial court did not consider the

presence of other factors that are necessary in order to impose consecutive sentences.

As previously noted, our supreme court has mandated that “consecutive sentences

cannot be imposed unless the terms reasonably relate to the severity of the offenses

committed and are necessary in order to protect the public from further serious criminal

conduct by the defendant.” Wilkerson, 905 S.W.2d at 938. Also, pursuant to Rule

32(c)(1), Tenn. R. Crim. P., the trial court must “specifically recite the reasons” behind

its imposition of a consecutive sentence. Such was not done in this case. Thus, our

review of consecutive sentencing is de novo without a presumption that the trial court’s

determinations are correct.



              As the state suggests, the trial court’s comments about the nature and

circumstances surrounding the offenses can be interpreted to mean that the court

believed that the public needed to be secure from the defendant’s future criminal



                                            19
conduct. However, there is nothing to justify a one hundred eighty-year sentence for

public security nor is there any indication that such an effective sentence carries any

reasonable relationship to the severity of the offenses committed.



              “The sentence imposed should be the least severe measure necessary to

achieve the purposes for which the sentence is imposed.” Tenn. Code Ann. § 40-35-

103(4). The circumstances surrounding the offenses and the extent of the defendant’s

criminal history justify a substantial sentence, but under all of the circumstances, we

conclude that a sentence of sixty years will protect the public and adequately reflect the

severity of the defendant’s offenses. In this respect, we note that we may consider

whether or not the effective, total sentence will meet the principles and purposes of the

1989 Sentencing Act when assessing what weight to apply to those factors which affect

both the length of each sentence for the involved offenses and the consecutive

sentencing decision. See State v. Marshall, 888 S.W.2d. 786, 788 (Tenn. Crim. App.

1994). We conclude that the thirty-year sentences imposed for the convictions on

counts one, two, and three are to be served concurrently with each other. The thirty-

year sentences for the convictions in counts four, five, and six are to be served

concurrently to each other but consecutively to counts one through three. The

sentences shall be served consecutively to the defendant’s previously imposed

sentences.



                                         IV. FINES

              The defendant contends that the trial court erred in approving and

adopting the maximum fine of twenty-five thousand dollars for each of the six counts as

set by the jury. He asserts that (1) the trial court declared him to be indigent, (2) he has

been incarcerated since November 2, 1988, (3) he presently has no assets and no

liabilities, and (4) he faces lengthy incarceration under the trial court’s sentence in this




                                             20
case. For these reasons, the defendant contends the fines are excessive and should

be eliminated.



              The appellate court has the authority to review fines as a part of the

sentence. State v. Bryant, 805 S.W.2d 762, 767 (Tenn. 1991). The appellate court’s

review of the sentence is de novo with a presumption that the trial court’s

determinations are correct. Tenn. Code Ann. § 40-35-401(d). The defendant’s ability

to pay is a factor to weigh in setting the fine. State v. Alvarado, 961 S.W.2d 136, 153

(Tenn. Crim. App. 1996). However, it is not a controlling factor.

              [A]n oppressive fine can disrupt future rehabilitation and
              prevent a defendant from becoming a productive member of
              society. . . . . However, a significant fine is not automatically
              precluded just because it works a substantial hardship on a
              defendant--it may be punitive in the same fashion incarceration
              may be punitive.

State v. Marshall, 870 S.W.2d 532, 542 (Tenn. Crim. App. 1993).



              Although the jury is to “fix” the amount of the fine and report it with a guilty

verdict, it is the trial court’s obligation to impose a fine not to exceed that fixed by a jury

as part of the sentence. See Tenn. Code Ann. § 40-35-301(b); See State v. Blevins,

968 S.W.2d 888, 895 (Tenn. Crim. App. 1997). The trial court’s imposition of a fine

should be based upon the factors and principles of the 1989 Sentencing Act, such as

prior history, potential for rehabilitation, financial means, and mitigating and enhancing

factors relevant to an appropriate, total sentence. See Bryant, 805 S.W.2d at 766. In

the present case, the trial court merely adopted the fines imposed by the jury without

further discussion or consideration. As previously noted, failure to follow the

procedures required by the 1989 Sentencing Act results in our reviewing the matter de

novo without a presumption that the trial court is correct.



              The trial court did not discuss the defendant’s financial means or his

potential for rehabilitation. In his Uniform Affidavit of Indigency, the defendant stated


                                              21
that he makes thirty-four cents per hour for six hours a day at Turney Center where he

has been incarcerated since 1988. In this document, the defendant also related that he

has no assets and has not filed an income tax return since 1986. The defendant was

declared indigent and appointed counsel at his indigency hearing on February 20, 1996.

We note, though, that a witness testified at the trial that the defendant was known as a

“money lender” to other inmates. However, the record contains no other indication that

he had any financial means.



              The record does not support a conclusion that the defendant has the

ability to pay a substantial fine. However, as previously noted, this does not mean that

we cannot impose a meaningful fine due to the defendant’s indigency. In consideration

of all the circumstances of this case, including the defendant’s personal circumstances,

we impose a fine of five thousand dollars for each of the six counts for a total of thirty

thousand dollars.



              In consideration of the foregoing and the record as a whole, the

defendant’s convictions for aggravated sexual battery are affirmed. The thirty-year

sentences imposed in counts one through three are affirmed, but they are to be served

concurrently with each other. The thirty-year sentences for counts four through six are

affirmed and are to be served concurrently with each other but consecutively to the

sentences for counts one through three for an effective sentence of sixty years. All the

sentences are to be served consecutively to the defendant’s previously imposed

sentences. The defendant shall be fined five thousand dollars on each count for a total

fine of thirty thousand dollars.




                                                  Joseph M. Tipton, Judge




                                             22
CONCUR:



David H. Welles, Judge



David G. Hayes, Judge




                         23
