            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT NASHVILLE            FILED
                           JUNE 1997 SESSION
                                                     December 12, 1997

                                                     Cecil W. Crowson
STATE OF TENNESSEE               )                  Appellate Court Clerk
                                 )    01-C-01-9607-CC-00311
      Appellee,                  )
                                 )    RUTHERFORD COUNTY
v.                               )
                                 )    HON. J. S. DANIEL
GAYLE T. PARSONS, JR.            )
                                 )    (Rape of a Child)
      Appellant.                 )
                                 )
                                 )



For the Appellant                     For the Appellee

Guy R. Dotson                         Charles W. Burson
102 South Maple Street                Attorney General and Reporter
Murfreesboro, TN. 37130
                                      Eugene J. Honea
Joe M. Brandon, Jr.                   Assistant Attorney General
304-D South Lowry Street              450 James Robertson Parkway
Smyrna, TN. 37167                     Nashville, TN. 37243

                                      William C. Whitesell, Jr.
                                      District Attorney General
                                      303 Rutherford Co. Judicial Building
                                      Murfreesboro, TN. 37130

                                      John W. Price III
                                      Assistant District Attorney General
                                      303 Rutherford Co. Judicial Building
                                      Murfreesboro, TN. 37130




OPINION FILED:____________________

AFFIRMED

WILLIAM M. BARKER, JUDGE
                                                   OPINION

        The appellant, Gayle T. Parsons, appeals as of right the convictions and

sentences he received in the Circuit Court of Rutherford County. In 1995, he was

indicted by a grand jury on four counts of rape of a child in violation of Tennessee

Code Annotated section 39-13-522 (Supp. 1995). After a trial by jury, the appellant

was convicted on two counts of rape of a child and was sentenced as a child rapist 1 to

twenty two (22) years on each count.2 The sentences were ordered to run

consecutive to each other for a total effective sentence of forty four (44) years in the

Tennessee Department of Correction.

        The appellant raises four issues on appeal. He contends that: (1) The

indictment was defective in failing to include the requisite mental state for the offenses

of child rape; (2) The jury received extraneous and prejudicial information from a

biased juror in violation of his right to a fair and impartial jury; (3) The trial court erred

in allowing the testimony of a registered nurse regarding the medical causation of the

victim’s injuries; and (4) The trial court erred in sentencing him to a consecutive

sentence of forty four (44) years.

        After a careful review of the record, we affirm the judgment of the trial court.

                                       FACTUAL BACKGROUND

        S.H.,3 the victim in this case, was ten years old when she was raped by the

appellant. The offenses occurred on several occasions during the Fall of 1993 when

S.H. was living in Smyrna, Tennessee with her mother, her little sister, and the

appellant. At that time, her mother, Connie Holmes Parsons, had recently divorced




        1
         The appellant was sentenced as a Child Rapist under Tennessee Code Annotated section 39-
13-523(b). That provision requires him to serve the entire forty four (44) year sentence undiminished by
any sente nce red uction cre dits he m ay otherw ise be eligible to receive.

        2
            The State entered nolle prosequi as to cou nts one and two of the fou r count ind ictmen t.

        3
           Due to the young age of the victim and the nature of the offenses, we identify the victim by
initials only.

                                                        2
S.H.’s natural father, Sherlock Holmes, and had begun dating the appellant.4 Ms.

Parsons eventually married the appellant on February 4, 1994.

         According to S.H.’s testimony at trial, the appellant committed the first act of

rape on August 27, 1993, the date of appellant’s birthday. S.H. testified that during

that evening, her mother took her into the bathroom of their apartment and explained

that the appellant desired to have sexual relations with her. 5 S.H. expressed that she

did not want to participate in any sexual acts; however, she reluctantly agreed at her

mother’s request. Her mother, thereafter, took her into the living room where S.H. and

the appellant removed their clothing and engaged in vaginal intercourse. S.H. testified

that the appellant was unable to fully penetrate her vagina with his penis; however,

she explained that after several attempts, he forced his penis inside of her which

caused extensive bleeding. 6

         S.H. testified that two more sexual encounters occurred between her and the

appellant during the months following the appellant’s birthday. The second encounter

occurred almost three weeks after the first. On that occasion, the appellant entered

S.H.’s bedroom late at night and carried her back to the bedroom he shared with her

mother. With Ms. Parsons watching, S.H. performed oral sex on the appellant at his

request. The appellant then attempted once again to have vaginal intercourse with

S.H.. When he was unable to penetrate her vagina with his penis, he forced her to


        4
         S.H.’s natural father moved to Ohio after the divorce and continued to live there when the rape
offenses occurred.

        5
          According to the testimony of Connie Parsons, the appellant had a fantasy about having sexual
relations with two women at the same time. Ms. Parsons told S.H. that if she did not agree to have sex
with the appellant on his birthday, then he would pursue his sexual fantasies with Ms. Parsons’ sister,
Molly Parsons. The appellant and Molly Parsons were formally married to each other and had two
children. Molly Parsons testified at trial that the appellant never talked to her about wanting to have sex
with two women at once. She further testified that she and the appellant never engaged in sexual
intercour se after th eir divorce .

        6
          The facts surrounding that sexual encounter are truly deplorable. According to S.H., she and
her mother got undressed together with the appellant in the living room of their apartment. The appellant
proceeded to have oral sex and vaginal intercourse with Ms. Parsons apparently to show S.H. how to do
it. S.H. testified that the appellant next tried to have vaginal intercourse with her. He searched the
apartm ent for Va seline an d pene trated S.H .’s vagina w ith his fingers to facilitate the s exual inter course .
S.H. stru ggled ag ainst the a ppellant an d continu ously resiste d his attem pts to pen etrate he r vagina w ith
his penis. Nevertheless, she admitted that he almost fully entered her vagina before she ran away to the
bathroo m.

                                                        3
have rectal intercourse with him.

       The third and final encounter also occurred late at night in the appellant’s

bedroom. On that occasion, S.H. performed oral sex on the appellant before he

attempted to have vaginal intercourse with her. S.H. testified that the appellant was

once again unable to fully penetrate her vagina with his penis; however, she stated

that the appellant forced her to have rectal intercourse. He then ordered her to watch

and participate in sexual activities between him and Ms. Parsons.

       S.H.’s testimony was corroborated by the testimony of her mother, Connie

Parsons. Although Ms. Parsons testified that the sex offenses began after the

appellant’s birthday, she vividly described two sexual encounters that matched the

descriptions given by S.H.. Ms. Parsons testified that during the two encounters, the

appellant would become violent and threaten to harm her if she did not allow him to

have sex with S.H.. On the first encounter, she admitted that she took S.H. into the

bathroom and asked her to perform sexual acts with the appellant. She further

admitted that she watched as the appellant engaged in vaginal intercourse with S.H.

on their living room floor.

       As to the second encounter, Ms. Parsons testified that she entered S.H.’s room

late at night and took her to the appellant’s bedroom. She testified that S.H.

performed oral sex on the appellant before he attempted to have vaginal intercourse

with her. According to Ms. Parsons, the appellant was unable to fully penetrate S.H.’s

vagina with his penis; however, he forced her to have rectal intercourse instead. He

then ordered S.H. to watch and participate as he engaged in vaginal intercourse with

Ms. Parsons.

       Sue Ross, a registered nurse with the “Our Kids” child care center, testified that

on November 8, 1994, she performed a medical exam on S.H.. Her examination

revealed that S.H. had a tear in the hymenal tissue of her vagina, consistent with




                                            4
penetration of an adult penis. 7 According to her testimony, S.H. had not yet entered

puberty at the time of the examination. Ms. Ross opined that the tear in S.H.’s vagina

was not caused by accidental penetration or natural development.

        Another medical examiner, Doctor Sudha Saraswat,8 testified that the tear in

S.H.’s hymenal tissue might have been a result of natural development. Doctor

Saraswat examined S.H. on August 9, 1994, and found that she was missing part of

the hymenal tissue in her vagina and that her vaginal opening was ten (10) millimeters

in diameter. Although those findings were consistent with the findings of Sue Ross,

Doctor Saraswat opined that they were not conclusive of sexual abuse. Instead,

Doctor Saraswat testified that she could not rule out the possibility of S.H.’s medical

condition being attributed to her natural development.

        The appellant testified in his own defense that he had never engaged in any

sexual activity with S.H.. He asserted that S.H. had made up the allegations of rape

because she desired to live with her natural father in Ohio. To support his theory, he

presented testimony from Kathy Custer, a social worker with the Tennessee

Department of Human Services. Ms. Custer interviewed S.H. on August 6, 1994, in

which S.H. discussed her sexual encounters with the appellant. According to Ms.

Custer, S.H. was extremely emotional and partially confused as to the details

surrounding the sexual offenses. However, on cross examination, Ms. Custer

admitted that S.H.’s difficulties were normal considering the degree of embarrassment

and regret that she experienced during the interview.9


        7
          Ms. Ross explained that when she examines a child, she uses the face of a clock as a
measurement for any vaginal injury. In this case, her examination of S.H. revealed that S.H. is missing
hym ena l tissu e equ al to th e spa ce be twee n 6:3 0 and 7:30 on a c lock . She opine d tha t the g ap is
consistent with non-accidental penetration of an object in the shape of an adult penis. She further
explained that the insertion and use of a tampon would not cause that degree of gap in the hymenal
tissue.

        8
        Doctor Saraswat obtained her medical degree in India before moving to Murfreesboro,
Tenn essee where s he curre ntly practices as a ped iatrician.

        9
        The appellant also relied on the testimony of two other witnesses in his defense. There was
testimony from Doctor Thomas Murphy, a Ph.D. in clinical psychology, concerning a variety of
psychological tests and evaluations that he had conducted on the appellant. According to Doctor
Murphy, the appellant suffered from a borderline personality disorder due to his chronic pattern of

                                                      5
         From the above evidence, the appellant was convicted by a jury on two counts

of rape of a child and was sentenced to consecutive terms of twenty two (22) years on

each count.10 In this appeal, he challenges both his convictions and sentences.

                                                    ANALYSIS

         The appellant first challenges the validity of the indictment charging him with

four counts of rape of a child. He contends that the indictment was fatally deficient in

failing to include the requisite mens rea for the child rape offenses.

         This issue is without merit.

         The appellant relies on this Court’s opinion in State v. Roger Dale Hill, Sr., No.

01C01-9508-CC-00267 (Tenn. Crim. App. at Nashville, June 20, 1996), to assert that

his indictment was defective. Our supreme court, however, has recently reversed the

decision in that case. See State v. Roger Dale Hill, Sr., No. 01S01-9701-CC-0005

(Tenn. at Nashville, November 3, 1997). The Court recognized that modern statutory

codes serve to avoid the hypertechnical nature of common law pleading. Therefore,

according to the Court, an omission of the mens rea element from an offense is not

always fatal to an indictment. Slip op. at 5-6. The Court held that an indictment is

legally sufficient if: (1) Its language satisfies the constitutional requirement of notice to

the accused, (2) Its form meets the requirements set forth in Tennessee Code

Annotated section 40-13-202,11 and (3) The requisite mental state can be logically



insta bility in inte rper son al rela tions hips , his c hron ic im puls ivene ss, h is alco hol ab use , his low self
esteem, and his broad mood ranges. Doctor Murphy opined that the appellant is constantly dependent
on affec tion and a ttention from fema les; howe ver, he co ncluded that the ap pellant is not a pedop hile.
           There was also testimony from Laura Williams, a lieutenant detective with the Smyrna Police
Department. Detective Williams testified that she drove from Smyrna, Tennessee to pick up the
appellan t and Co nnie Par sons a fter they had been ap prehen ded in C larksville. Du ring the drive back to
Smyrna, Detective Williams observed the couples’ demeanor in the patrol car and she indicated that
they appeared relaxed and very affectionate towards each other. Detective Williams also testified
concerning pretrial statements given by Ms. Parsons and S.H.. She indicated that Ms. Parsons’ final
statement, describing the sexual encounters between the appellant and S.H., was consistent with the
inform ation prov ided by S.H ..

         10
            In a sepa rate proc eeding, C onnie Pa rsons p led guilty to two co unts of c riminal re spons ibility
for the fac ilitation of rape o f a child.

         11
          Under Tennessee Code Annotated section 40-13-202 (1997), an indictment must state the
charged offenses in ordinary and concise language that will provide the accused with a common
unders tanding a nd will enab le the trial cour t to enter a p roper jud gme nt.

                                                           6
inferred from the alleged criminal conduct. Slip op. at 3.

       In this case, counts three and four of the indictment stated in pertinent part:

              [O]n the ___ of September, 1993, approximately two weeks after
       the events described in Count I, in the County and State aforesaid, and
       before the finding of this indictment, Gayle Parsons and Connie Parsons,
       Connie Parsons being criminally responsible for the acts of Gayle
       Parsons as per T.C.A. 39-11-402(2) did sexually penetrate [S.H.], a child
       less than thirteen (13) years of age, in violation of T.C.A. 39-13-522, and
       against the peace and dignity of the State of Tennessee.

               [O]n or between the date(s) of Count III and Christmas of 1993, in
       the County and State aforesaid, and before the finding of this indictment,
       Gayle Parsons and Connie Parsons, Connie Parsons being criminally
       responsible for the acts of Gayle Parsons as per T.C.A. 39-11-402(2) did
       sexually penetrate [S.H.], a child less than thirteen years of age, in
       violation of T.C.A. 39-13-522, and against the peace and dignity of the
       State of Tennessee.

       We find that the mens rea element can be inferred from the indictment

language charging the appellant with four separate counts of rape of a child. The

indictment sets forth the statutory provision making it a Class A Felony for anyone to

unlawfully sexually penetrate a victim, if the victim is less than thirteen (13) years of

age. Tenn. Code Ann. § 39-13-522. Moreover, the indictment states the facts

constituting the offenses and provides the appellant with sufficient notice of the

charges as mandated by our constitution. Accordingly, we conclude that the

indictment is valid.

                                             II.

       The appellant next contends that he was deprived of a fair and impartial jury

because of juror misconduct during voir dire. One of the seated jurors, Joyce

McInturff, admitted during jury deliberations that her father had sexually assaulted her

when she was a child. During voir dire, however, she remained silent and did not

disclose any information pertaining to her experience. The appellant argues that Ms.

McInturff’s conduct exposed the jury to extraneous and prejudicial information.

       Although we find that Ms. McInturff should have disclosed her past experience

during voir dire, we find no evidence that she was biased against the appellant or that



                                             7
her comments exposed the jury to extraneous or prejudicial information.

        The right to trial by an impartial jury is a cornerstone of our criminal justice

system. That fundamental right, as guaranteed by Article I, Section 9 of the

Tennessee Constitution and the Sixth Amendment to the United States Constitution,

requires the jury be free of even a reasonable suspicion of bias and prejudice. See

Hyatt v. State, 430 S.W.2d 129, 130 (Tenn. 1967). The appellant bears the burden of

proving a prima facie case of bias and impartiality on the part of the jury. See State v.

Taylor, 669 S.W.2d 694, 700 (Tenn. Crim. App. 1983), per. app. denied (Tenn. 1984).

        In this case, the appellant first points to Ms. McInturff’s silence during voir dire

to show that she prejudiced the outcome of his case. During voir dire, the assistant

district attorney general asked the prospective jurors whether anyone in the group had

a family member or close friend who has been charged with rape or some type of

sexual crime. Ms. McInturff did not respond to the State’s question. The prosecutor

next asked whether anyone on the panel had been close to a victim, including a friend

or family member, who has been sexually abused in some way. One juror admitted

that she had been a victim of a rape involving a male friend. However, Ms. McInturff

remained silent and provided no information concerning her personal experience.12

She was thereafter impaneled as a juror and she participated in the deliberation of the

appellant’s case.

         After conviction, another juror informed defense counsel about Ms. McInturff’s

comments during the deliberations. Appellant raised a propter affectum13 challenge in

his motion for a new trial, arguing that Ms. McInturff’s silence during voir dire raised a

        12
          Coun sel also as ked if an y of the pros pective jur ors felt stro ngly about o r had an y com men ts to
make regarding the prior questions he had aske d them during voir dire. Once again, Ms . McInturff
rem ained silen t.

        13
           Juror disqualifications are based upon either propter defectum or propter affectum. See State
v. Furlough, 797 S.W .2d 631, 6 52 (Te nn. Crim . App. 199 0). Propter defectum disqualifica tions perta in to
genera l relationships including fa milial ties be tween a juror and a party or witne ss at trial. See id. Those
disqualifica tions m ust be m ade be fore the ju ry renders a verdict. See id. Propter affectum
disqualifications, however, are based upon a juror’s bias or partiality towards a particular party or witness
at trial. See id. Thos e disqua lifications m ay be raise d after the jury returns its verdict. See id. In this
case, the appellant’s challenge is propter affectum because he contends that a juror was biased against
him.

                                                        8
presumption of bias that ultimately prejudiced the outcome of his case.

       The appellant relies on our supreme court’s decision in State v. Akins, 867

S.W.2d 350, 355 (Tenn. Crim. App. 1993). In Akins, the Court held that when a juror

willfully conceals or fails to disclose information on voir dire which reflects on the

juror’s lack of impartiality, a presumption of prejudice arises. See id. However, that

presumption may be dispelled in cases where there is an absence of actual partiality

on the part of the juror. See id. at 357. In this case, we find that any presumption of

bias was completely dispelled by evidence that Ms. McInturff acted impartially and

objectively as a member of the jury.

       At the hearing on the motion for a new trial, Ms. McInturff testified that she

remained silent during voir dire because she believed her objectivity would not be

compromised by her past experience. She further explained that the questions during

voir dire did not require her to disclose her personal experience. According to her

testimony, no charges had ever been brought against her father for the sexual assault.

Moreover, she indicated that she had resolved the experience during her childhood

and had never let it affect her adult life.

       Her testimony, as corroborated by two other jurors, also revealed that she had

initially voted to acquit the appellant. The jury vote was nine (9) to three (3) in favor of

a guilty verdict at the time she disclosed her past experience. As the deliberations

continued, the nine jurors who favored a guilty verdict began questioning Ms. McInturff

as to why she was voting for an acquittal. Ms. McInturff responded that, “I am trying to

be a good juror. I’m trying to weigh all of the arguments in the case, all of the

evidence.” At that point, she confessed that she had been abused as a child by her

father and that she could relate to the victim in this case. However, she indicated that

despite her past experience, she was focused on reviewing all the evidence and

deciding the case objectively.

       Two other jurors, Faye Hubbard and Francis Muscatell, testified that they

observed Ms. McInturff’s confession during the deliberations. According to their

                                              9
testimony, Ms. McInturff was among the three jurors in favor of an acquittal at the time

she broke down and revealed her past experience. After she disclosed her personal

experience, she and the other jurors continued to deliberate for another two hours

before rendering a unanimous verdict to convict the appellant. Ms. Hubbard and Mr.

Muscatell both testified that Ms. McInturff’s comments did not bias their decision to

convict the appellant. Furthermore, based upon the jury’s discussion of the evidence

during deliberation, they opined that every juror focused closely on the evidence and

remained objective in rendering the verdict.

       From that evidence, we find that any presumption of bias, arising from Ms.

McInturff’s silence during voir dire, was completely dispelled by her impartiality

throughout the case. Although we agree that Ms. McInturff should have disclosed her

past experience during voir dire, we find no evidence that she was biased against the

appellant or that her participation as a juror exposed the jury to any extraneous

information. To the contrary, Ms. McInturff’s comments about her past experience

had absolutely no bearing on whether the appellant committed the sexual offenses

against S.H.. In light of the overwhelming evidence against the appellant, we find that

any possible prejudice from Ms. McInturff’s participation as a juror is harmless beyond

a reasonable doubt.

       Moreover, there is no evidence that Ms. McInturff prejudiced the jury against

the appellant. The jury vote was already nine (9) to three (3) in favor of a guilty verdict

when Ms. McInturff revealed her personal experience. Ms. McInturff never advocated

or suggested, directly or indirectly, that the appellant should be convicted because of

her experience. Instead, she was one of the three jurors who originally voted to acquit

the appellant. The record demonstrates that she and the other jurors took great care

in reviewing the evidence objectively and rendering a fully deliberated verdict against

the appellant. We, therefore, conclude that the appellant has not carried his burden to

show that Ms. McInturff was biased or impartial or that her presence on the jury

prejudiced the outcome of his case.

                                            10
                                             III.

       The appellant next contends that the trial court erred in allowing the testimony

of a registered nurse regarding the medical causation of the victim’s injuries. He

argues that Sue Ross, a registered nurse, was not qualified to testify as an expert

under the Tennessee Rules of Evidence.

       This issue is without merit.

       Rule 702 of the Tennessee Rules of Evidence provides that, “[i]f scientific,

technical, or other specialized knowledge will substantially assist the trier of fact to

understand the evidence or to determine a fact in issue, a witness qualified as an

expert by knowledge, skill, experience, training, or education may testify in the form of

an opinion or otherwise.” To qualify as an expert, a witness must have experience or

education within an area of knowledge or expertise beyond the scope of common

knowledge. See Kinley v. Tennessee State Mutual Insurance Co., Inc., 620 S.W.2d

79, 81 (Tenn. 1981).

       In this case, the trial court found that Sue Ross was a licensed registered nurse

who has a Master of Science degree in Nursing from Vanderbilt University and a

Bachelor of Science degree in Nursing from the University of Tennessee at Memphis.

Additionally, Ms. Ross has qualified in prior cases as an expert in her field of pediatric

nursing and she had examined S.H. through her work as a Nurse Practitioner at the

“Our Kids” child care clinic. From that evidence, the trial court concluded that Ms.

Ross was qualified as an expert to testify about S.H.’s injuries.

       The trial court has broad discretion in determining the admissibility of expert

testimony. See Otis v. Cambridge Mutual Fire Insurance Co., 850 S.W.2d 439, 443

(Tenn. 1992). When the trial court concludes that a witness qualifies as an expert and

the witness testifies within the scope of her expertise, then the trial court’s decision will

not be overturned absent an abuse of discretion. See State v. Rhoden, 739 S.W.2d 6,

13 (Tenn. Crim. App. 1987), per. app. denied (Tenn. 1987).



                                             11
       We find that the trial court did not abuse its discretion in allowing Ms. Ross to

testify concerning S.H.’s injuries. Ms. Ross performed a physical examination of S.H.

and found that she had a tear in the hymenal tissue of her vagina. Based upon that

finding, Ms. Ross opined that the tear was consistent with non-accidental penetration

from an object in the shape of an adult penis. Her testimony was clearly within the

scope of her expertise as a licensed pediatric nurse. Therefore, the trial court properly

admitted her testimony into evidence.

                                           IV.

       The appellant next contends that the trial court erred in sentencing him to

consecutive twenty two (22) year sentences on the two counts of rape of a child. He

argues that the trial court improperly relied on the same enhancement factors both to

increase his sentences and to order them to run consecutively.

       This issue is without merit.

       When an appellant complains of his sentence, we must conduct a de novo

review of the record. See Tenn. Code Ann. § 40-35-401(d) (Supp. 1995). The

sentence imposed by the trial court is accompanied by a presumption of correctness

and the appealing party carries the burden of showing that the sentence is improper.

See Tenn. Code Ann. § 40-35-401 (Sentencing Commission Comments). The

presumption, however, is conditioned upon an affirmative showing in the record that

the trial court considered the sentencing principles and all relevant facts and

circumstances. See State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

       In this case, the trial court considered the principles of sentencing and the

totality of the evidence before sentencing appellant to twenty two years on each count

of rape of a child. The trial court applied the following enhancement factors: (1) The

appellant has a previous history of criminal convictions or criminal behavior; (2) The

appellant was a leader in the commission of the offenses involving two or more

criminal actors; (7) The offenses involved a victim and were committed to gratify the



                                           12
appellant’s desire for pleasure and excitement; (8) The appellant has a previous

history of unwillingness to comply with the conditions of a sentence involving

community release; and (15) The appellant abused a position of private trust that

significantly facilitated the commission of the offenses. Tenn. Code Ann. § 40-35-114

(1), (2), (7), (8), and (15) (Supp. 1995).14 The trial court did not find any mitigating

factors.

        The appellant does not challenge the application of the five enhancement

factors to his sentences. He contends instead that the trial court erred in relying on

the same enhancers both to increase his sentences and to order consecutive

sentencing.

        On the issue of consecutive sentencing, the trial court relied on Tennessee

Code Annotated section 40-35-115(b)(5), which states that:

        The court may order sentences to run consecutively if the court finds by
        a preponderance of the evidence that: (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 victim or victims, the time span
        of defendant’s undetected sexual activity, the nature and scope of the
        sexual acts and the extent of the residual, physical and mental damage
        to the victim or victims.

         The trial court applied the above language and found that the appellant had a

relationship with the victim which he used to commit the multiple sexual offenses.

Furthermore, his criminal acts against the victim were particularly heinous and were

undetected for an extended period of time. The trial court, therefore, ordered

appellant’s sentences to be served consecutively.

         From our de novo review, it is apparent that the trial court considered the

appellant’s private relationship with the victim both to enhance his sentences and to


        14
           The State contends that enhancer (5) should also apply to the appellant’s sentences. Tenn.
Code Ann. § 40-35-114 (5) (Supp. 1996). Enhancer (5) applies in cases where the defendant treats or
allow s the victim to be treate d with exc eptio nal cr uelty d uring the c om mis sion of the offe nse . In this
case, we find that the appellant treated S.H. with exceptional cruelty during the commission of the sexual
offenses. The evidence shows that after the appellant had rectal intercourse with S.H., he required her
to watch and participate as he engaged in vaginal intercourse with S.H.’s mother. That evidence
supports the application of Enhancer (5). The State, however, has not requested this Court to increase
appellan t’s senten ces up on app lying Enhan cer (5).

                                                      13
order consecutive sentencing. 15 The appellant argues that the trial court’s

consideration was improper; however, he cites no authority to support his contention.

Our review of the applicable law indicates that the trial court had ample authority to

support its decision.16 This Court has previously determined that, “[t]here is no

prohibition in the 1989 Sentencing Act against using the same facts and

circumstances both to enhance sentences under applicable enhancement factors and

to require those sentences to be served consecutively.” See State v. Meeks, 867

S.W.2d 361, 377 (Tenn. Crim. App. 1993). We, therefore, conclude that the trial court

properly considered appellant’s relationship with the victim both to enhance his

sentences and to impose consecutive sentencing.

        Furthermore, our de novo review reveals that the length and consecutive nature

of appellant’s sentences are supported by separate facts. The appellant has a prior

history of criminal behavior, he was the leader in committing the sexual offenses, he

committed the offenses against the victim to obtain personal pleasure and excitement,

and he has demonstrated an unwillingness to comply with conditions of community

release. Tenn. Code Ann. § 40-35-114 (1), (2), (7), and (8). Moreover, the record

reflects that the appellant manipulated his private relationship with the victim to

commit the sexual offenses over an extended period of time. Those undisputed

factors support the consecutive, twenty two (22) year sentences on each count of rape

of a child.

        Additionally, we find that appellant’s consecutive sentences reasonably relate



        15
           The trial court relied on the appellant’s relationship with S.H. to enhance his sentences under
Tennessee Code Annotated section 40-35-114 (15) (Supp. 1995). The trial court further relied on that
relationsh ip to order c onsec utive sen tences under T ennes see C ode An notated s ection 40 -35-115 (b)(5).


        16
           See State v. Fra nklin , 919 S.W .2d 362, 3 66-67 (T enn. Cr im. Ap p. 1995) , per. app. denied
(Tenn. 1996) (upholding the trial court’s decision to enhance appellant’s sentences and to impose
consecutive sentencing based upon the fact that appellant committed the criminal offenses while on
probation ); State v. Meeks, 867 S.W.2d (Tenn. Crim. App. 1993) (upholding the use of appellant’s prior
crimina l activity both to en hance his sente nces a nd to req uire cons ecutive s entenc ing). State v. James
A. Hester, No. 01C01-9410-CC-00352, (Tenn. Crim. App., at Nashville, May 17, 1995) (holding that the
use of th e sam e facts b oth to enh ance s entenc es and to impo se con secutive senten ces do es not viola te
the doub le jeopard y clause o f either the T ennes see C onstitution o r the Unite d States Cons titution).

                                                      14
to the severity of his crimes and serve to protect the public from his possible future

criminal activity. See State v. Wilkerson, 905 S.W.2d 933, 938-39 (Tenn. 1995). The

record reveals that the appellant has a history of criminal behavior that has not been

rehabilitated, but instead, has become increasingly more severe throughout his life. In

this case, his acts of rape and manipulation against a helpless, young victim were

extremely heinous and reflect a need to protect society from his future criminal

behavior.

       Based upon the foregoing, the judgment of the trial court is affirmed.




                                          ____________________________
                                          WILLIAM M. BARKER, JUDGE




CONCUR:


_____________________________
JOE B. JONES, Presiding Judge


_____________________________
THOMAS T. WOODALL, JUDGE




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