        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs December 11, 2013

                STATE OF TENNESSEE v. LEVESTER TAYLOR

                 Appeal from the Criminal Court for Davidson County
                      No. 2009A934     Monte Watkins, Judge


                No. M2012-00732-CCA-R3-CD - Filed February 4, 2014


The Defendant, Levester Taylor, was convicted by a Davidson County jury for multiple
counts of aggravated sexual battery and rape of a child. The trial court imposed a sentence
of 10 years at 100% for each aggravated sexual battery and 20 years at 100% for each rape
of a child, and ordered the sentences to run consecutively for an effective sentence of 200
years in the Department of Correction. On appeal, the Defendant argues that the evidence
is insufficient to sustain his convictions and that the trial court erred imposing an effective
sentence of 200 years. Upon review, the Defendant’s judgments of conviction are affirmed,
the sentences imposed by the trial court are vacated, and the case is remanded for a
resentencing hearing, following the Defendant’s election to proceed under the pre-2005
sentencing act or the amended sentencing act accompanied by the Defendant’s written waiver
of his ex post facto protections.

 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Vacated
                         and Remanded for Sentencing

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which J ERRY L. S MITH and
A LAN E. G LENN, JJ., joined.

Michael A. Colavecchio, for the Defendant-Appellant, Levester Taylor.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel Harmon, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; and Sharon Reddick, Assistant
District Attorney General, for the Appellee, State of Tennessee.
                                             OPINION

       The Defendant, Levester Taylor, was indicted for multiple counts of aggravated sexual
battery and rape of child against his minor step-daughter, T.R.1

       Trial. Brenda Marable, the mother of the minor victim, testified that the victim was
born on January 7, 1994. She identified the Defendant at trial as her ex-husband and the
biological father of her younger son, Q.T. The Defendant began living with Ms. Marable and
her children in 1997 and the two married in 1998, when the victim was four years old. He
continued to live with them until the victim was in the seventh grade. During that time
period, the family lived in four different residences throughout the Davidson County area.
They lived on Lakehurst Drive from 1998 to 2000, when the victim was ages four to six years
old; on Jones Avenue from 2000 to 2004, when the victim was ages six to ten years old; on
Westchester from 2004 to 2005, when the victim was ages ten to eleven years old; and on
Cooper Terrace from 2005 to 2006, when the victim was ages eleven to twelve years old.

       Ms. Marable testified that she confronted the Defendant about possible abuse when
the victim was eleven years old after getting a phone call from the victim alleging
inappropriate behavior by the Defendant. The Defendant denied the allegations and
continued to live with the family for the next nine months. Ms. Marable testified that she did
not call the police at that time because she “wanted to believe it wasn’t true.” She began
saving money to move to a new house with her children. She ended her relationship with the
Defendant and ultimately divorced him in 2007 or 2008, after she and her children moved
out of the house. An investigation into the alleged sexual abuse was not initiated until
several years later, when the victim was in the ninth grade and disclosed the abuse at school.
On cross-examination, Ms. Marable acknowledged that she and her children continued to live
with the Defendant for nine months to a year after the victim’s initial allegations of abuse.
She also agreed that she never saw or heard anything that would indicate abuse.

        T.R., the victim in this case, was seventeen years old at the time of trial. She
identified the Defendant in court and testified that he sexually abused her from the ages of
six to twelve. She testified that the first incident of abuse occurred when she was six years
old while the family was living at the house on Lakehurst Drive. She recalled that the
Defendant came into her bedroom at night while her mother was sleeping and “began
rubbing on” her vagina over her underwear. She cried during the incident and the Defendant
told her “shh” and then left her bedroom. The victim described another incident that
occurred while the family was living on Jones Avenue. During this incident, the Defendant

       1
        It is the policy of this Court to refer to minor victims of sexual abuse and their minor family
members by their initials.

                                                  -2-
came into her bedroom at night while her mother was sleeping and “examined [her] private
parts.” She recalled that the Defendant slid her clothes off partially and touched her inside
and outside of her vagina. He also lifted her shirt and rubbed on her breasts. After he left,
the victim went into her closet and slept there for the rest of the night. Another time, while
still living at the house on Jones Avenue, the Defendant came into the victim’s bedroom
while it was raining and touched the outside of her vagina. She pretended to be asleep
because she “didn’t want to get in any trouble.” On another occasion, the Defendant came
into the victim’s bedroom and she attempted to leave, but he “grabbed her” and “laid [her]
back down so [she] wouldn’t move.” He held her down with his arm across her stomach,
opened her legs, and touched the outside of her vagina. The victim recalled that all of the
incidents at the house on Jones Avenue occurred while her mother was asleep or at work.
On two occasions, the victim told the Defendant that she was going to tell her mother, but
he warned her not to because she would get in trouble.

        When the victim was eleven, her family moved into a house on Westchester. One
morning after the victim’s mother left for work, the Defendant came into the victim’s
bedroom and touched on the inside and outside of the victim’s vagina and on the victim’s
breasts. The victim “got scared” and ran into the bathroom. After the Defendant left for
work, the victim called her mother and told her what the Defendant had done. She did not
tell her mother everything that had happened over the years because she was “scared” of her
“family getting hurt.” She clarified that she “wasn’t sure if [the Defendant] would take his
anger out on [her] mom” because she had told on him. The victim’s mother confronted the
Defendant about the allegations and he apologized to the victim and said it would not happen
again.

       When the victim was twelve years old, her family moved into a house on Cooper
Terrace. One day while her mother was at work, the victim came home from school and
found the Defendant watching pornography on television. After she went to sleep that night,
the Defendant came into her room, picked her up and carried her to his bedroom, and rubbed
his penis on the inside and outside of her vagina and “put his lips on” her vagina. The victim
was scared and started to cry. The Defendant continued to rub her and it “started to hurt” so
she cried harder and the Defendant told her she could go back to her own room. On another
occasion, the Defendant came into the victim’s bedroom and touched the inside and outside
of her vagina. He left her room when she started to cry. Another time, right before the
victim started her monthly period, the Defendant took the victim into his bedroom and fully
penetrated her vagina with his penis. She cried because it hurt and he told her to be quiet.
She kept crying and he told her to go back to her bedroom. The incident caused her to bleed
into her underwear and her vagina was sore. Soon after this incident, the Defendant moved
to Louisiana and the abuse never happened again.



                                             -3-
        Other than telling her mother, the victim did not tell anyone else about the abuse while
it was occurring, and to her knowledge no one ever saw any of the abuse that occurred. After
the abuse ended, the victim talked to her best friend about what the Defendant had done to
her. When the victim was in the ninth grade, approximately two years after the abuse ended,
she took a survey at school given by Terry Barksdale, a child abuse counselor. The survey
asked a variety of questions about the students’ home life, including whether they had ever
been sexually abused. The victim recalled that Mr. Barksdale told students to answer
truthfully and assured them that there would be no follow-up questions after the survey. The
victim disclosed that she had been sexually abused in the survey, and a few weeks later an
investigation was initiated into the allegations of abuse. The victim testified that after
disclosing the abuse in the survey, she had to tell her mother and brother about the abuse.
She stated that she “wish[ed] [she] had never said anything” about the abuse because “so
many people are hurting.”

        Terry Barskdale, a counselor and case manager with the Black Children’s Institute,
testified that as part of his work he would routinely go into schools and interview students
to see if they had “experienced any type of abuse, physical abuse, sexual abuse, and basically,
see if they were having problems in school.” He visited the victim’s high school in October
2008, during which the victim participated in a survey and indicated that in her responses that
she had been sexually abused. He set up a meeting with her “to get her to open up,” and
reported the information obtained to the principal and the Children Protective Services of the
Department of Children’s Services (“DCS”).

       Shayla Dix, a case manager with DCS, testified that the victim’s case was referred to
her in October 2008. She explained that she set up a meeting with the victim, the purpose
of which was to “assess the situation to insure the child is safe, to get her story, [and] to
compare what the referral has and what she tells me is her story.” After meeting with the
victim, she referred her to a forensic interviewer to get a “more specific[,] detailed interview
by a trained forensic interviewer who specializes in interviewing children of physical or
sexual abuse.” She stated that the statements made by the victim in her interview were
consistent with the statements made in the forensic interview.

       Lisa Dupree, a forensic social worker at Our Kids Center, testified that she
interviewed the victim in October 2008. During the interview, the victim described
numerous incidents of sexual abuse that occurred while the victim was ages six to twelve.
The victim reported that the Defendant touched her with his hands, fingers, and penis, and
eventually “raped” her more than once when he “forced his private into her.” The victim also
reported that he touched her breasts and “butt” with his hands and put his mouth on her
vagina. Ms. Dupree recalled that the victim denied participating in any sexual activity with
peers and denied using tampons.

                                              -4-
        Hollye Gallion, a pediatric nurse practitioner at Our Kids Center, was qualified to
testify as an expert in the field of pediatric nursing and forensic examinations without
objection by the Defendant. She conducted a physical examination of the victim in October
2008 and observed two hymenal tears that had healed but remained visible. She opined that
these injuries were consistent with a “penetrating trauma” and consistent with the sexual
abuse described by the victim. She further opined that nothing else in the victim’s medical
history could account for the two injuries to the victim’s hymen other than penile penetration.
On cross-examination, Ms. Gallion acknowledged that she could not determine when the
injuries to the victim’s hymen occurred.

       Following deliberation, the jury convicted the Defendant of eight counts of aggravated
sexual battery and six counts of rape of a child.

       Sentencing. Following arguments by counsel at the December 8, 2011 sentencing
hearing, the trial court made the following oral findings and imposed an effective sentence
of 200 years confinement:

              I think I have to start with [Tennessee Code Annotated section] 40-35-
       103(1)(b), that is “confinement is necessary to avoid depreciating the
       seriousness of the offense or confinement is particularly suited to provide an
       effective deterrent to others likely to commit similarly offenses.” Although it
       is mandatory prison time I think it’s appropriate that the Court would read that
       into the record.

              The next thing the Court has to consider are the enhancement factors.
       And as pointed out by the State, enhancement factor number one applies
       because of [the Defendant’s] previous history of criminal conduct.
       Enhancement factor number four, because of the vulnerable age of the child.
       Enhancement factor number seven, that he committed this to gratify a desire
       for pleasure. And, finally, enhancement factor number fourteen, that he was
       in a position of trust with respect to this child, being a stepfather of this
       particular child. As such, all of those factors apply in this particular case.

              Having applied those factors, the Court believes that as to each count
       fo aggravated sexual battery the sentence shall be ten years. As to each count
       of rape of a child the sentence should be twenty years.

              Now, with respect to [Tennessee Code Annotated section] 40-35-115,
       obviously, subsection five applies because he is convicted of two or more
       statutory offenses involving sexual abuse of a minor. So the Court believes

                                              -5-
       that the sentences should run consecutively; and because it is necessary to
       protect the public against further criminal conduct by the [D]efendant, and that
       the consecutive sentence reasonably relates to the seriousness of the offenses
       committed.

             . . . . That is a grand total of two hundred years. And that will be the
       judgment of the Court.

After the trial court’s denial of his motion for new trial, the Defendant timely appealed his
convictions and sentences to this Court.

                                          ANALYSIS

        I. Sufficiency of the Evidence. The Defendant first argues that the evidence is
insufficient to sustain his convictions. He asserts that the State’s only proof at trial was the
testimony of the victim, T.R., which he maintains was not credible. Specifically, he notes
that the victim’s mother did not believe her allegations at first and the victim waited several
years after the abuse ended to report the abuse to any authority figure. Additionally, he
asserts that the trial court failed to act as a thirteenth juror pursuant to Rule 33(d) of the
Tennessee Rules of Criminal Procedure. The State asserts that the evidence was sufficient
to sustain the Defendant’s convictions and that the trial court properly fulfilled its role as the
thirteenth juror. We agree with the State.

        The State, on appeal, is entitled to the strongest legitimate view of the evidence and
all reasonable inferences which may be drawn from that evidence. State v. Bland, 958
S.W.2d 651, 659 (Tenn. 1997). When a defendant challenges the sufficiency of the evidence,
the standard of review applied by this Court is “whether, after reviewing 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). Similarly, Rule 13(e) of the Tennessee Rules of Appellate Procedure states,
“Findings of guilt in criminal actions whether by the trial court or jury shall be set aside if
the evidence is insufficient to support a finding by the trier of fact of guilt beyond a
reasonable doubt.” Guilt may be found beyond a reasonable doubt in a case where there is
direct evidence, circumstantial evidence, or a combination of the two. State v. Matthews,
805 S.W.2d 776, 779 (Tenn. Crim. App. 1990) (citing State v. Brown, 551 S.W.2d 329, 331
(Tenn. 1977); Farmer v. State, 343 S.W.2d 895, 897 (Tenn. 1961)).

       The trier of fact must evaluate the credibility of the witnesses, determine the weight
given to witnesses’ testimony, and reconcile all conflicts in the evidence. State v. Odom, 928
S.W.2d 18, 23 (Tenn. 1996). In addition, as relevant here, the Tennessee Supreme Court has

                                               -6-
determined that the testimony of a child victim, alone, is sufficient to uphold a conviction for
child rape. State v. Elkins, 102 S.W.3d 578, 582-83 (Tenn. 2003); see State v. Warren
Curnutt, No. M2006-00552-CCA-R3-CD, 2007 WL 1482390, at *11 (Tenn. Crim. App., at
Nashville, May 22, 2007), perm. app. denied (Tenn. Sept.17, 2007). When reviewing issues
regarding the sufficiency of the evidence, this Court shall not “reweigh or reevaluate the
evidence.” Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997). This Court has often
stated that “[a] guilty verdict by the jury, approved by the trial court, accredits the testimony
of the witnesses for the State and resolves all conflicts in favor of the prosecution’s theory.”
Bland, 958 S.W.2d at 659. A guilty verdict also “removes the presumption of innocence and
replaces it with a presumption of guilt, and the defendant has the burden of illustrating why
the evidence is insufficient to support the jury’s verdict.” Id. (citing State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982)).

        Tennessee Code Annotated section 39-13-504(a)(4) defines aggravated sexual battery,
a Class B felony, as “unlawful sexual contact with a victim by the defendant or the defendant
by a victim . . . [where] [t]he victim is less than thirteen (13) years of age.” Sexual contact
means “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.” T.C.A.
§ 39-13-501(6). Intimate parts “includes semen, vaginal fluid, the primary genital area,
groin, inner thigh, buttock or breast of a human being.” § 39-13-501(2). Tennessee Code
Annotated section 29-13-522(a) defines rape of a child, a Class A felony, as “the unlawful
sexual penetration of the victim by the defendant or the defendant by a victim, if the victim
is more than (3) years of age but less than thirteen (13) years of age.” 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 in the genital or anal openings
of the victim’s, the defendant’s, or any other person’s body, but emission of semen is not
required.” § 39-13-501(7).

       When an indictment charges that a number of sexual offenses occurred over a span
of time, the State may introduce evidence of unlawful sexual activity between the defendant
and the victim allegedly occurring during that time. State v. Rickman, 876 S.W.2d 824, 828-
29 (Tenn. 1994). However, at the conclusion of its case-in-chief, the State must elect the
particular incident for which a conviction is being sought. See Burlison v. State, 501 S.W.2d
801, 802 (Tenn. 1973). The Tennessee Supreme Court stressed the importance of election
in State v. Adams:

             “This Court has consistently held that when the evidence indicates the
       defendant has committed multiple offenses against a victim, the prosecution

                                               -7-
       must elect the particular offense as charged in the indictment for which the
       conviction is sought.” State v. Brown, 992 S.W.2d 389, 391 (Tenn. 1999)
       (citing Tidwell v. State, 922 S.W.2d 497 (Tenn. 1996); State v. Shelton, 851
       S.W.2d 134 (Tenn. 1993); Burlison v. State, 501 S.W.2d 801 (Tenn. 1973)).
       This election requirement serves several purposes. First, it ensures that a
       defendant is able to prepare for and make a defense for a specific charge.
       Second, election protects a defendant against double jeopardy by prohibiting
       retrial on the same specific charge. Third, it enables the trial court and the
       appellate courts to review the legal sufficiency of the evidence. The most
       important reason for the election requirement, however, is that it ensures that
       the jurors deliberate over and render a verdict on the same offense. Brown,
       992 S.W.2d at 391; Burlison, 501 S.W.2d at 803. This right to a unanimous
       verdict has been characterized by this Court as “fundamental, immediately
       touching on the constitutional rights of an accused . . . . Burlison, 501 S.W.2d
       at 804.

24 S.W.3d 289, 294 (Tenn. 2000). The Tennessee Supreme Court has recognized practical
difficulties present in applying the election requirement in cases of child sexual abuse, and
held that the state is not required to identify the particular date of the chosen offense.
Shelton, 851 S.W.2d at 137; see also, State v. John C. Crim, No. M2010-01281-CCA-
R30CD, 2012 WL 76891, at *10 (Tenn. Crim. App. Jan. 10, 2012), perm. app. denied (Tenn.
April 2012) (explaining that “[b]ecause young children who are victims of sexual abuse are
often unable to testify that the abuse occurred on a specific date, a particular offense may be
identified by other means”).

       If, for example, the evidence indicates various types of abuse, the prosecution
       may identify a particular type of abuse and elect that offense. Moreover, when
       recalling an assault, a child may be able to describe unique surroundings or
       circumstances that help to identify an incident. The child may be able to
       identify an assault with reference to a meaningful event in the his or her life,
       such as the beginning of school, a birthday, or a relative’s visit. Any
       description that will identify the prosecuted offense for the jury is sufficient.
       . . [T]he trial court should bear in mind that the purpose of election is to ensure
       that each juror is considering the same occurrence. If the prosecution cannot
       identify an event for which to ask a conviction, then the court cannot be
       assured of a unanimous decision.

Shelton, 851 S.W.2d at 138 (internal citations and footnotes removed).




                                               -8-
        In the present case, the State presented evidence of multiple incidents of sexual abuse
of the victim by the Defendant over the course of six years. The victim testified that the
abuse began when she was six years old, while living at the house on Lakehurst Drive. She
described with particularity the type of abuse she endured, where the abuse occurred, and
where her mother and brother were during the abuse. She went on to testify about multiple
incidents of abuse that occurred at the houses on Jones Avenue, Westchester, and Cooper
Terrace. She described each incident with the same particularity, providing details about type
of abuse that occurred, the circumstances surrounding the abuse, where her mother and
brother were during the abuse, and what she did after the abuse. Significantly, the victim
distinguished between the episodes of abuse where the Defendant touched the victim’s
vagina with his hands and where he subjected her to penile penetration. After its case-in-
chief, the State made its election of offenses, narrowing the jury’s consideration to fourteen
specific incidents of abuse. Although none of the incidents were identified by a particular
date, each was identified by a specific description supplied by the victim to distinguish it
from the other incidents. See Shelton, 851 S.W.2d at 138.

       In challenging the sufficiency of the evidence, the Defendant does not assert that the
State’s election of offenses was inadequate or attack the evidence supporting any one count
in particular. Instead, the Defendant broadly asserts that the victim’s testimony is not
credible, noting that the victim’s mother did not initially believe the victim’s allegations and
highlighting the fact that the victim waited several years before disclosing the abuse to
anyone else. This argument is without merit. As noted above, credibility determinations and
weight afforded to the evidence are matters reserved for the jury. This Court, on appeal, will
not reweigh or reevaluate the evidence. Moreover, the testimony of a child victim, alone, is
sufficient to uphold a conviction for child rape. State v. Elkins, 102 S.W.3d 578, 582-83
(Tenn. 2003). Here, the victim testified in specific detail about each elected offense.
Although not necessary to uphold a conviction, this testimony was corroborated further
through testimony by the victim’s mother, the DCS case manager, and the forensic
interviewer. Likewise, the physical evidence was consistent with the victim’s account of her
sexual abuse. In fact, Ms. Gallion testified that based on the victim’s medical history, penile
penetration was the only explanation for the injuries to the victim’s hymen. Viewed in the
light most favorable to the State, we conclude that a rational juror could find the Defendant
guilty of all fourteen offenses beyond a reasonable doubt. He is not entitled to relief.

        Likewise without merit is the Defendant’s contention that the trial court failed to
fulfill its role as the thirteenth juror. Rule 33(d) of the Tennessee Rules of Criminal
Procedure states “The trial court may grant a new trial following a verdict of guilty if it
disagrees with the jury about the weight of the evidence.” Tenn. R. Crim. P. 33(d); State v.
Carter, 896 S.W.2d 119, 122 (Tenn. 1995) (holding the trial court has a duty to serve as the
thirteenth juror). Only if the record contains statements by the trial judge indicating

                                              -9-
disagreement with the jury’s verdict or evidencing the trial judge’s refusal to act as the
thirteenth juror may an appellate court reverse the trial court’s judgment. Id. Otherwise,
appellate review is limited to sufficiency of the evidence pursuant to Rule 13(e) of the Rules
of Appellate Procedure. State v. Burlison, 868 S.W.2d 713, 718-19 (Tenn. Crim. App.
1993). If the reviewing court finds that the trial judge has failed to fulfill his or her role as
thirteenth juror, the reviewing court must grant a new trial. State v. Moats, 906 S.W.2d 431,
435 (Tenn. 1995). Here, the trial court denied the motion for new trial, stating “I remember
this particular case. I remember it well. And all things considered the Court is going to
respectfully deny the motion for new trial.” The record shows that the trial court agreed with
the jury’s verdict after considering the evidence presented at trial. The trial court properly
fulfilled its role as the thirteenth juror, and therefore, this issue is not subject to appellate
review.

        II. Sentencing. The Defendant next argues that the trial court erred in imposing an
effective sentence of 200 years confinement. The Defendant contends that the trial court
failed to properly consider and apply the enhancement factors when determining the length
of his sentence. Additionally, the Defendant asserts that the trial court abused its discretion
by ordering that the sentences be served consecutively. The State responds that the trial court
acted within its discretion in sentencing the Defendant, and therefore, should be affirmed.
Although not addressed by the parties, we are compelled to note at the outset that the bulk
of the Defendant’s crimes occurred prior to the 2005 amended sentencing act and the trial
court sentenced the Defendant in accordance with the amended act without entry of a waiver
of ex post facto protections. Accordingly, we reverse the judgments and remand for
resentencing.

       The Compiler’s Notes to amended Tennessee Code Annotated section 40-35-210
(2006) identified the eligible defendants who could elect the pre-2005 sentencing act or the
amended sentencing act:

       Offenses committed prior to June 7, 2005, shall be governed by prior law,
       which shall apply in all respects. However, for defendants who are sentenced
       after June 7, 2005, for offenses committed on or after July 1, 1982, the
       defendant may elect to be sentenced under the provisions of the act by
       executing a waiver of such defendant's ex post facto protections. Upon
       executing such a waiver, all provisions of the act shall apply to the defendant.




                                              -10-
        Most of the Defendant’s crimes occurred well before the 2005 amendments to the
sentencing act took effect.2 However, the Defendant was not sentenced until December 8,
2011. Thus, he had the option of being sentenced under the pre-2005 sentencing act or the
amended sentencing act. There is no waiver of the Defendant’s ex post facto protections in
the record, which would normally mean that the Defendant’s sentence would be governed
by the pre-2005 sentencing law. However, the transcript of the sentencing hearing makes
clear that the trial court sentenced the Defendant pursuant to the 2005 amended sentencing
act.

        Because the trial court sentenced the Defendant under the 2005 amended sentencing
act without a written waiver of his ex-post facto protections, we remand the case so that the
Defendant can elect either (1) the pre-2005 sentencing act, or (2) the amended sentencing act
upon his written waiver of his ex post facto protections. See State v. Quincy Bryan Banks,
No M2007-00545-CCA-R3-CD, 2008 WL 1699440, at *7 (Tenn. Crim. App., Nashville,
Apr. 11, 2008), perm. app. denied (Tenn. Aug. 25, 2008). At the resentencing hearing for
this case, neither the Defendant nor the State is limited to the proof that they presented at the
December 8, 2011 sentencing hearing. Id. Each party may submit additional evidence that
is relevant and permitted under the sentencing scheme that the Defendant elects. Id.

                                           CONCLUSION

        The Defendant’s convictions for aggravated sexual battery and rape of a child are
affirmed. The sentences imposed by the trial court are vacated, and we remand the case to
the trial court for a resentencing hearing to determine the length and manner of his sentence,
following the Defendant’s election to proceed under either the pre-2005 sentencing act or the
amended sentencing act accompanied by the Defendant’s written waiver of his ex post facto
protections.


                                              ___________________________________
                                               CAMILLE R. McMULLEN, JUDGE




        2
          The indictments reflect that Counts 1, 2, and 3 occurred between January 7, 2000 and October 19,
2003; Counts 4, 5, 6, 7, 8, 9, and 10 occurred between January 7, 2003 and October 19, 2005; Counts 10, 11,
12, 13, and 14 occurred between January 7, 2005 and October 19, 2007.

                                                   -11-
