          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT NASHVILLE              FILED
                             APRIL SESSION, 1998           June 10, 1998

                                                        Cecil W. Crowson
                                                       Appellate Court Clerk
STATE OF TE NNE SSE E,             )     C.C.A. NO. 01C01-9701-CR-00021
                                   )
            Appellee,              )
                                   )     DAVIDSON COUNTY
V.                                 )
                                   )
                                   )     HON. ANN LACY JOHNS, JUDGE
MICHAEL DOUGLAS HUGHES,            )
                                   )
            Appe llant.            )     (AGGR AVATED RAPE)



FOR THE APPELLANT:                       FOR THE APPELLEE:

SAM E . WALL ACE, JR .                   JOHN KNOX WALKUP
227 Se cond A venue N orth               Attorney General & Reporter
Nashville, TN 37201
                                         TIMO THY F . BEHAN
                                         Assistant Attorney General
                                         2nd Floor, Cordell Hull Building
                                         425 Fifth Avenue North
                                         Nashville, TN 37243

                                         VICTO R S. JO HNS ON, III
                                         District Attorney General

                                         LILA STATOM
                                         Assistant District Attorney General
                                         Washington Square
                                         222 Second Avenue North, Suite 500
                                         Nashville, TN 37201-1649




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                    OPINION
       The Defendant, Michael Douglas Hughes, appeals as of right from the

sentencing order o f the D avidso n Cou nty Crim inal Court.          The Defendant was

indicted on eleven (11) counts of aggravated rape by the unlawful sexual penetration

of a child less than thirteen (13) years of age. Defendant pled no contest to one (1)

count of aggravated rape and guilty to ten (10) counts of aggravated rape. The trial

court sentenced Defendant to twenty (20) years for each count, with the sentences

for four (4) of these counts to run consecutively to each other and the remaining

counts to be served concurre ntly to ea ch oth er. Th e total e ffective s enten ce is

eighty ( 80) ye ars. T he De fenda nt argu es the followin g on a ppea l:

       1) Wh ether the trial court erre d in sente ncing him to twenty (2 0) year
       sentences for each count when the minimum sentence for each count
       is fifteen (15) years;

       2) Whether the trial court erred in imposing consecutive sentences;

       3) Whether the trial court erred in considering uncharged sexual acts;

       4) Whether the trial court erred in properly explaining the use of
       enhancement and mitigating factors; and

       5) Whether the indictments in this case failed to set forth the mens rea
       elements of aggravated rape.

We affirm the ju dgme nt of the trial co urt.



       When an accused challenges the length, range or the manner of service of a

sentence, this court has a duty to conduct a de novo review of the sentence with a

presumption that the determinations made by the trial court are correct. Tenn. Code

Ann. § 40-35-401(d). This presumption is “conditioned upon the affirmative showing

in the record that the trial cou rt cons idered the se ntenc ing prin ciples and a ll relevant

facts and circum stances.” State v. Ashby, 823 S.W .2d 166, 169 (Tenn. 199 1).

                                             -2-
There are, however, exceptions to the presum ption of co rrectnes s. First, the record

must dem onstra te that th e trial co urt con sidere d the s enten cing p rinciples and a ll

relevant facts and circu mstan ces. Id. Secon d, the pre sump tion does not app ly to

the legal conclusions reached by the trial court in sentencing.                 Third, the

presumption does not apply when the determinations made by the trial court are

predicated upon u ncontro verted fac ts. State v. S mith, 898 S.W.2d 742, 745 (Tenn.

1994), perm. to appeal denied, id. (Tenn. 199 5).



       At the sentencing hearing, the victim, S.E., (we will refer to the victim of child

sexual abus e by initia ls) testifie d that she and her mother formerly lived with the

Defendant and she ca lled him “Dad.”         T he first time S.E. was touched by the

Defendant in a sexual way was when s he was four (4) yea rs old and living in North

Carolina.    On that first occasion, her mother was away from home and th e

Defendant was sitting in his recliner when he asked S.E. to come and sit in his lap.

She complied, then Defendant aske d her to “kiss his private part, and then he kissed

my private part.” Defendant told the victim not to tell her mother, that “it would be our

secret.” The abuse continued at different times until S.E. was nine (9) years of age.

The victim described occasions when the Defend ant would “pu t his private part

inside of [her], inside [her] bottom, his finger inside of [her] private part and inside of

[her] bottom.” The Defendant used cold cream in her bottom when he abuse d her.

S.E. recalled that something “dark and slimy” came out of the Defendant’s body

during th ese eve nts.



       When asked why she did not te ll, S.E. stated that she was afraid and that

Defendant said “it was our secre t . . . and I c onsid ered h im m y dad, s o I said this is

what dad said, and I had better listen.” The victim told her best friend about these

                                            -3-
events, and that led to her mother finding out about the sexual abuse. S.E. went

through therapy because of these events, but reported that she was doing fine at the

time of her testim ony.



       Marc ia Hughes, S.E.’s mother and the Defendant’s ex-wife, first learned of the

abuse when a police de tective cam e to her pla ce of e mplo ymen t and to ld her. She

took the victim and le ft their re siden ce with the Defendant that day. Ms. Hughes

stated that she did not have any money and that when she returned to her home

several days later, the Defendant had removed all her money and charge cards from

her wallet. Defendant also emptied out her bank account. She and S.E . stayed w ith

family members until she got assistance from the Department of Human Services.

Ms. Hughes recalled that the victim wa s in cou nselin g at the Guid ance Cent er in

Murfreesbo ro for five (5) or six (6) months. At first, S.E. appeared relieved that the

abuse stopped, but then she was very sorry that she told because everything had

been taken away from her. Then, the victim became angry, and Ms. Hughes feared

that when S.E. gets older the anger will return. Durin g this time period, Ms. Hughes

stated that the Defendant ne ver offered to help the m and the only way they we re

able to retu rn to live in their h ome w as bec ause o f a court ord er.



       Jam ie Langley is a counselor at the Guidance Center in Murfreesboro,

Tennessee. She was involved in S.E.’s treatment which bega n in November 1991

and continued through March 31, 1992. The victim was placed in a girls’ sex abuse

treatment group where she expressed feelings of anger, shame and embarrassment

about the abuse that occurred. During the sessions, S.E. described nightmares and

anxiety, but ove rall was doing well. La ngley b elieved that S.E . had b enefite d grea tly

from the support of her mother and family such that she was better equipped to deal

                                            -4-
with the traum a. The v ictim ask ed to disc ontinue therapy in March , and L angle y

stated that this is a common practice as children want to forget the events which

cause them pain. In May, S.E.’s mother called to place her back into therapy, but

they subsequently had to move and Langley had not seen the victim since March.

Langley thought that S.E. would continue to have problems regarding the abuse and

possibly suffer from a mental health disorder later in life.



       Dr. John Holloran testified for the defense. He is the Director at New Life

Lodge, a treatment center for drug and alcohol addiction. The Defendant was one

of his pa tients, a nd wh en he bega n treatm ent D efend ant wa s in the “crucial stage”

of alcoholism. Defendant abused alcohol for twenty-five (25) years, daily consuming

between twelve (12) to twenty-four (24) beers and half a liter of scotch. Dr. Holloran

reported that Defe ndant made every effort to deal with his disease and was an

excellent p atient.



       Don Roy served as Defendant’s sponsor in Alcoholics Anonymous. Roy

stated that Defendant had terrible remorse and guilt regarding his abuse of S.E.

Defendant never denied the charges against him.



       Ron Hutcheson was Defendant’s co-sponsor in Alcoholics Anonymous and

stated that Defendant expressed remorse for his actions. Defendant never denied

that the events occu rred an d was willing to face tria l.



       Robert Vero , the Ex ecutive Direc tor of Lu ton M ental H ealth S ervices in

Nashville, evalua ted D efend ant as an ad ult sexu al offender.         He evaluated

Defendant on two occasion s to determine his sexual predisp osition toward violence,

                                           -5-
age and gender. Vero wanted to make a determination as to his overall risk to the

comm unity as a know n sex o ffende r. Defe ndan t’s physiological exam was broken

into two parts during which he was exposed to nudity slides of individuals of both

genders ranging from two (2) years of age through adulthood then exposure to a

tape of pedo philia to de termine whethe r or not De fendan t has a pro clivity toward

violence or non-vio lence. D efenda nt showed sexual arousal during audio stimulation

of an ad ult with a c onse nting o r initiating child, b ut did n ot sho w any a rousa l to

forced sexual ac tivity or violence with children. In determining whether Defendant

is a violent threat to the community, Vero determined that Defen dant us ed mo derate

coercion practices to com mit acts o f sexual ab use.



       Defendant perceives the world through very distorted thinking, making

“meaning of the w orld in the way that he needs the world to be.” Defendant “tends

to make m eaning of relations hips in the way tha t he needs to s ee relationships.”

When asked why Defendant sought gratification through S.E., Defendant stated that

he “felt [she] did n ot love m e as m uch as her own dad. I love her so much . I don’t

want to make this sound like an excuse, but . . . it’s going to ma ke this child love

me.” Ve ro desc ribed this s tateme nt as a cla ssic exam ple of disto rtion.



       The role alc ohol p layed in the Defendant’s sexually abusive behavior was as

a disinhibitor, therefore it would no t be sufficient to remo ve alcoh ol from Defe ndan t’s

life in order to prevent further episodes of sexual abuse. The alcohol allowed

Defendant to dull his inhibitions, allowing him to penetrate the victim. As a result of

his evaluation , Vero rec omm ended treatme nt for Defe ndant’s sexually offensive

behavior and some term of incarceration. Defendant has a “good chance at learning

how to con trol his s exually abno rmal beha vior . . . but n o cha nce o f curing his

                                            -6-
sexua lly abnormal behavior.” Defendant would need lifelong treatm ent, an d wou ld

still require good s urveillance mech anism s for mo nitoring his behavio r in order to be

a minim al risk to the c omm unity.



       Defendant adm itted to d igital fing er pen etration of the vic tim’s va gina, o ral sex,

both cunnilingus and fellatio, and penile penetration of her labia. Defendant had no

recollection of anal intercourse. Defendant adamantly denied ejaculating in the

presence of or inside of the victim.



       The Defendant testified that he was a recovering alcoholic. He knew that he

had done something terribly wrong, but could not recollect exactly what it was that

he had done. Defendant thought that he had blacked out through most of the sexual

abuse. When he found out from Detective Ronald Carter that he was ch arged w ith

eleven (11) counts of rape, he was scared and did not know that he had penetrated

S.E. Over a p eriod of tim e, he rec alled all that w ent on, bu t it is still “very cloudy.”

Defendant admitted that the victim is a very truthful person and is a good,

respe ctable little girl who would not lie. Defendant believed that most of his crimes

were alcohol related and that he would never drink again.



       Defendant felt that he was c apab le of rehabilitation and co uld be a prod uctive

member of society, but needed continued alcohol and sexual treatment. He was

willing to do w hatever h e could p ersona lly do to help the victim.



       On cross-examination, Defendant recalled that the first instance of abuse

occurred when the victim was four (4) years old. Defendant claimed that S.E.

crawled up in his lap where he was sitting with his pan ts unzipped. S .E. was very

                                              -7-
curious about what a male looked like, and he eventually molested her after the

victim initiated the touching and wanted to “find out what it was all about.” On a later

occasion, S.E. came into the Defendant’s bedroom while the Defendant was lying

in bed and asked him to do all the things to her that he and her mother did.

Defendant did admit to doing sexual things to the victim without her asking for those

things to occur, but he could not recall any of these occasions. He recalled that S.E.

often came into his roo m witho ut wearin g any cloth es. When aske d if the vic tim

initiated the contact, Defendant stated that “she was in our bed a lot.” Defen dant d id

not admit guilt initially due to his fear and concern for the victim; he knew he had

done something but did not know exactly what it was.



       The trial court sentenced Defendant on each of these eleven (11) cou nts to

serve a term of twenty (20) years in the Department of Correction. Four (4) of these

sentences were to be served consecutively to each other, with the rest to run

concurrently. The total sentence was eighty (80) years. The trial court stated that

it would reduc e to writin g the c heck list of en hanc ing fac tors tha t it relied upon. The

fact that Defendant had acknowle dged misconduct and started the process of

correcting his misconduct wa s taken into acc ount. Cons equently, the trial court

found that there were significant limitations regarding the mitigation. Regarding his

credibility, Defenda nt’s mem ory was re mark ably vivid when putting the blame on the

victim as he could remember in minute details her “vario us sed uctive activities .”

When asked to recall his own con duct, he conve niently blacked ou t. The trial court

found this lack of credibility as impacting on the success of treatment, the need for

punish ment a nd the n eed to p rotect soc iety.




                                             -8-
       W hile the trial cou rt recog nized the De fenda nt’s pro blem with alc ohol, it could

not overlook the fact that if the victim had not reported the abuse then the abuse

would have continued. Only when Defendant was forced to protect himself from

these accusations did he determine that he needed treatment. The trial court further

noted that there is an enorm ous ne ed for de terrence of this type o f criminal a ctivity

in the cou rt’s jurisdiction a nd wou ld take jud icial notice o f that fact.



       Our review of this sentence is de novo, without a presumption of correctness,

because the trial court failed to explicitly set forth the enhancement factors. Tenn.

Code Ann. § 40-35-210(f). By failing to state the relevant findings of fact, the trial

court did not justify the application of enhancement factors and how it determined

the weig ht to which it applied ea ch of the fa ctors.



       In conducting a de novo review of a sentence, this court must consider: (a) the

evidence, if any, received at trial and the sentencing hearing; (b) the presentence

report; (c) the principles of senten cing and argum ents as to sentencing alternatives;

(d) the nature and characteristics of the c riminal condu ct involved; (e) any statutory

mitigating or enhancement factors; (f) any statement that the defendant mad e on h is

own behalf; an d (g) the p otential or lac k of poten tial for rehab ilitation or treatm ent.

Tenn. Code An n. §§ 40 -35-102 , -103, an d -210; see State v. S mith, 735 S.W .2d

859, 863 (T enn. Crim. A pp. 1987).



       Aggravated rape is a Class A felony. Tenn . Code An n. § 39-13-50 2(b).

Having no prior criminal record, Defendant was sentenced as a Range I, Sta ndard

Offender, subject to a sen tence of not less th an fifteen (15) nor m ore than twen ty-

five (25) years . Tenn. Code Ann. § 40-35-112(a)(1). This offense and D efend ant’s

                                              -9-
subsequent sentencing occurred prior to the amendment of Tennessee Code

Annotated section 40-35-210(c) which sets the presumptive sentence for a Class A

felony at the midp oint of the range. T enn. Cod e Ann. § 40 -35-210(c)(19 97 Repl.).

At the time of Defendant’s offense and sentencing, the presumptive sentence was

the minim um with in the rang e if there we re no m itigating or en hance ment factors.

Tenn. Code Ann. § 40-35-210(c)(1990 Repl)(repealed 19 95).                  If there are

enhancement and mitigating factors, then the court must start at the minimum

sentence, enhance the sentence as appropriate for the enhancement factors, and

then reduce the sentence within the range as appropriate for the mitigating factors.

Id. at (e).



       Defendant argues that his se ntence of twenty (20) years for each offens e is

exces sive. W hile the trial court stated that it would set forth written findings of fact

as to the applicable enhancement factors, these findings were not established within

the record as required under Tennessee Code Annotated section 40-35-2 10(f).

Under our de novo review, we find the followin g factors a pplicable . First, the victim

of the offenses was particularly vulnerable because of age. Tenn. Code Ann. § 40-

35-114(4). Even though age was an essential element of the crimes for which

Defendant was c onvicte d, the vic tim was particularly vulnerable because of her

extrem ely young a ge of four (4) yea rs and her vuln erability due to her rela tionsh ip

with her step father. See State v. McK night, 900 S.W.2d 36, 54 (Tenn. Crim. App.

1994).    Also, the offen ses involve d a victim a nd were comm itted to gratify th e

Defe ndan t’s desire for pleasu re or exciteme nt. Tenn. Co de Ann. § 4 0-35-114(7).

Testimony was given describing Defendant’s ejaculation during these episodes of

abuse and that Defendant was evaluated and determined to have sexual arousal

and pleasure from consensual sexual ac tivities with young fema le children. Pleasu re

                                           -10-
or excitement is not an essential element of the offense of rape and, therefore, may

be considered as an ap propriate enhan ceme nt factor. State v. Adams, 864 S.W.2d

31, 35 (Te nn. 199 3) (citations omitted) . Finally, the Defendant abused a position of

private trust when committing these offense s. Tenn. C ode Ann . § 40-35-114 (15).

The victim testified that the Defendant told her this was “our secret” and that she

considere d him her dad, so she “had better listen.” The Defendant’s status as

stepfather while living with the victim’s mother is a sufficient basis for sentence

enhan ceme nt unde r factor (15 ). Adams, 864 S.W.2d at 34.



      The only applicable mitigating factor, one which the trial c ourt did mention at

the conclusion of the hearing, is the Defendant’s remorse for his actions. Tenn.

Code Ann. § 40-35-113(13). As the trial court correctly stated, this mitigating factor

shou ld not be given much weight as Defendant would still probably be committing

these offens es if the victim had n ot told of the abuse. Furthermore, the Defendant

insisted at the sentencing hearing that the victim initiated thes e sexua l offenses . It

is evident that Defendant has not yet taken the responsibility for his heinous actions.



      Under our de novo review, the sentence of twenty (20) years is approp riate

given the application of three (3) enha ncem ent fac tors. T he evid ence of Def enda nt’s

repeated course of sexual abuse of the victim over a five (5) year period and the

resulting emotiona l injuries fully support this senten ce. Defend ant urges this co urt

to consider his potential for rehabilitation, but the evaluation of Defendant proved

that he mig ht com mit sexu al offense s at a later date. Defendant’s continued blame

of the victim for the occurrence of these sexual episodes is evidence of his lack of

respon sibility for his actions, and this directly bears upon his potential for

rehabilitation. Defendant argues that the trial court considered uncharged sexual

                                           -11-
acts when sentencing the Defendant. We can find no evidence of this in the record.

The Defendant’s sentence of twenty (20) years for each sentence was appropriate,

and the se issue s have n o merit.



      Defendant also contests the conse cutive natu re of these senten ces. Four (4)

of the eleven (11) sentences were ordered to be served consecutively, with the

remaining seven (7) to be served concurrently with each other and the other

sentences. If a defendant is convicted of more than one (1) criminal offense, the trial

court may order his sentences to run consecutively when the offenses involve sexual

abuse of a mino r with consideration to the aggravating circumstances arising from

the relation ship between the defendant and the victim, the time span of defen dant’s

undetected sexual activity, the nature and scope of the sexual acts and the extent

of the residual, physical and mental damage to the victim or victims. Tenn. Code

Ann. § 40-35 -115(b)( 5). In the case sub judice, the D efend ant se xually a buse d his

stepdaughter from the time she was four (4) years of age until she was nine (9). The

abuse only ceased at that time because S.E. told her best friend of these offenses.

The Defendant employed coercive tactics to keep the victim silent for a period of five

(5) years, and during that time committed every type of rape imaginable, including

oral, vaginal an d anal. S.E. testified that she had to receive counseling, and her

counselor suggested that she would continue to need counseling. While S.E. was

not currently undergoing therapy, there was sufficient evidence o f the victim’s anger,

shame and embarrassment regarding the abuse to constitute her emotional and

mental damage as a result of the Defendant’s repeated abuse. In addition, an

extended sentence is necessary for the Defendant to protect the public against

further criminal conduct and the sentences reasonably relate to the severity of the




                                          -12-
offenses Defendant comm itted. State v. Wilkerson, 905 S.W.2d 933 (Tenn. 1995).

This issu e is withou t merit.



       In his final issue, Defendant argues that the indictme nts are inva lid as th ey fail

to charge the Defendant with the requisite mens rea element of “intentionally,

know ingly or recklessly” raping the victim in violation of Tennessee Code Annotated

section 39-13-502. The substance of each count of the indictment which charges

aggravated rape is as follows:

       That Michael Douglas Hughes on a day in 1990 or 1991, in Davidson
       County, Ten ness ee an d befo re the fin ding o f this ind ictme nt, did
       engage in unlawfu l sexual pe netration of [S.H.], a child less than
       thirteen (13) years of age, in violation of Tennessee Code Annotated §
       39-13-502, and against the peace and dignity of the State of
       Tennessee.

       Defendant relies upon a decision of this court in State v. Roge r Dale Hill, No.

01C01-9508-CC-00267, Wa yne C ounty (Ten n. Crim . App., Nashville, June 20,

1996). The Ten ness ee Su prem e Cou rt recen tly revers ed this court’s decisio n in

State v. Hill, 954 S.W.2d 725 (Tenn.1997). The indictment in Hill charged the

defendant in all counts with the following:

       [The defend ant] did unlawfully sexually penetrate [the victim], a person
       less than thirteen (13) years of age, in violation of Tennessee Code
       Annotated § 39-13-5 02, all of wh ich is aga inst the pe ace an d dignity of
       the State of Tennessee.

The supre me c ourt in Hill held that the required mental state may be inferred from

the nature of the c rimina l cond uct alle ged in the indictment under review in that case.

As the statuto ry elem ents o f the offe nses are ide ntical to that in th e indic tmen t in Hill,

our supreme court’s decision is controlling.                The required mental state of

intentionally, knowingly or reck lessly may be infe rred from the n ature of the criminal

condu ct alleged in this indictm ent. Id. at 729. T his issue is without m erit.




                                              -13-
    We affirm the ju dgme nt of the trial co urt.



                                ____________________________________
                                THOMAS T. W OODALL, Judge



CONCUR:



___________________________________
GARY R. WA DE, Presiding Judge


___________________________________
L. T. LAFFERTY, Special Judge




                                        -14-
