        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs December 18, 2013

         STATE OF TENNESSEE v. ANDRES ANDRES FRANCISCO

               Direct Appeal from the Criminal Court for Knox County
                         No. 98780    Bob R. McGee, Judge




                   No. E2013-00360-CCA-R3-CD - Filed June 5, 2014


A Knox County Criminal Court Jury convicted the appellant, Andres Andres Francisco, of
one count of attempted aggravated sexual battery and three counts of rape of a child.
Following his convictions, the trial court imposed a total effective sentence of fifty years in
the Tennessee Department of Correction. On appeal, the appellant contends that the
evidence was not sufficient to sustain his convictions; that the trial court erred in denying his
motions to suppress DNA evidence and his statement to police; and that the trial court erred
by imposing consecutive sentencing. Upon review, we affirm the judgments of the trial
court.

    Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court are
                                     Affirmed.

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which J OSEPH M. T IPTON,
P.J., and R OGER A. P AGE, J., joined.

Mark E. Stephens (on appeal), Jessica Greene (on appeal and at trial), and Robert Edwards
(at trial), Knoxville, Tennessee, for the appellant, Andres Andres Francisco.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Senior Counsel;
Randall E. Nichols, District Attorney General; and Charme Knight, Assistant District
Attorney General, for the appellee, the State of Tennessee.

                                          OPINION

                                   I. Factual Background
       At trial, the victim, whose birthday was May 10, 1998, testified that she had one
younger brother and two younger sisters. The appellant, her mother’s cousin, had lived with
her family for approximately four years. The victim’s mother did not want the appellant to
live with them, but the victim’s father insisted because the appellant was a relative.

       The victim said that in the fall of 2010, she was twelve years old and in the seventh
grade. Her mother worked at night, and her father did landscaping work during the day. The
appellant also did landscaping. Not long after her brother’s birthday party on September 25,
2010, the victim was in the living room doing her homework. She was wearing a tank top
because of the hot weather. The appellant came into the room, grabbed her hand, pulled her
tank top “half way” down, and tried to touch her breasts. The appellant stopped when the
victim threw a pencil at his forehead. In response to the State’s question regarding how close
the appellant’s hands were to her breast, the victim responded, “It was like right here[ 1 ] and
I [threw] that pencil at him.”

       The victim said that two or three weeks later, the appellant was at home when she and
her siblings returned from school. The victim wanted to take a shower because it was hot
outside, but her brother got into the shower first. While she waited in her room for her turn
to bathe, she took off her shirt and wrapped a towel around herself. The appellant sneaked
up behind her, removed the towel, put it over her face, and pulled her pants down. He
pushed her to the floor then penetrated her vagina with his penis.

        The victim said that on another occasion, her parents went to the store, and she and
her siblings stayed home with the appellant. While she was cleaning her mother’s bedroom,
the appellant came into the room, approached her, and grabbed her head with one hand. With
his other hand, he removed his penis from his pants and tried to make her perform oral sex
on him. She said that his penis touched her lips but did not penetrate her mouth. The victim
found a pencil and tried to stab the appellant, but she missed.

       The victim said that sometime around her sister’s birthday on November 17, 2010, her
parents were working, and she was at home with her siblings and the appellant. The victim
was in her room, wearing a long shirt and basketball shorts. The appellant came into the
room and pushed her onto the bed; she landed on her back. The appellant grabbed a blanket
and put it over her face. He pulled her shorts down, unzipped his pants, and penetrated her
vagina with his penis.

      The victim stated that the last time the appellant assaulted her, her sisters were at
home, but her father and brother were at boxing practice. The victim and one of her sisters

       1
           The record does not reflect the distance to which the victim was referring.

                                                     -2-
were in her bedroom, sitting on the bed and playing a game. Her bedroom door was closed
and locked. The appellant unlocked the door, came into the room, and told her sister to
check on the other sister. The victim started to follow as her sister left the room, but the
appellant grabbed her hand. He pushed the victim onto the bed, and she landed on her back.
The appellant took a blue blanket from the bed and put it over her face. She tried to fight
him, but he had his hands on her arms. The appellant took one hand off the victim and pulled
down his pants. He pulled the victim’s sweatpants “[h]alf the way down” and penetrated her
vagina with his penis. The victim said that it felt “weird” and that it “hurt[].” She tried to
scream for her sisters, but the blanket muffled her cries. The appellant ran to his room when
he heard the victim’s cousin come into the house five minutes later. The victim noticed that
the bed was wet. The victim thought the assault happened in December 2010, recalling that
her family had bought Christmas presents and decorations. Shortly after this incident, the
appellant moved out of the house.

        The victim said that her last menstrual cycle was in November 2010. In June 2011,
her father took her to a doctor, and they learned that the victim was pregnant. The victim told
her father that the appellant had molested her, and her father called the police.

       The victim said that she delivered a baby boy by Caesearean section on August 17,
2011. Investigator Clemons came to the hospital and took buccal swabs from the victim and
the baby.

      On cross-examination, the victim said that her home had three bedrooms. From
September to December 2010, the victim’s mother, father, and sisters shared one bedroom.
The victim shared a bedroom with her brother, and the appellant had his own bedroom.

       The victim acknowledged that when she was in middle school, a teacher spoke with
the students about “good touching versus bad touching.” Nevertheless, she did not
immediately reveal that the appellant had molested her. After the victim and her father
learned that she was pregnant, they went home for a “family gathering,” and her father
confronted the appellant. When the confrontation became heated, the victim’s father called
911. During the call, he asked the victim to speak with the operator because he had trouble
communicating in English. The 911 operator asked the victim who impregnated her, but the
victim did not respond. Sometime later, during her initial conversation with Investigator
Clemons and Mr. Morisett, the victim told them that the appellant had molested her at least
six times, but she disclosed the details of only two of the incidents.

       Regarding the incident when the appellant attempted to touch her breast, the victim
asserted that he was unsuccessful because she stabbed him with a pencil.



                                              -3-
       On redirect examination, the victim said that she did not immediately reveal the abuse
because the appellant threatened to hurt her family. Additionally, following the last incident,
the appellant told her that his wife “knew witchcraft,” and he threatened to send the victim’s
photograph to his wife to “put [the victim] in witchcraft.” The victim believed the appellant
would follow through on his threats and do “something bad” to her or her family.

       On recross examination, the victim acknowledged that she did not tell Investigator
Clemons and Mr. Morisett that the appellant had threatened her with witchcraft. She
explained that she knew what “witchcraft” meant in Spanish but did not know what it meant
in English.

       Knoxville Police Investigator Shelly Clemons testified that she spoke with the victim
before she spoke with the appellant. She said that he gave “conflicting birth dates,” all of
which were “indicative of him being over 18 years of age.” During the meeting, Danielle
Weiber, with the Knoxville Police Department’s forensic unit, collected buccal swabs from
the appellant. Thereafter, Russ Whitfield, who was also with the forensic unit, collected
buccal swabs from the victim and her baby. Investigator Clemons requested that the swabs
be sent for testing to determine the baby’s paternity.

       Dwayne Winston, an employee of LabCorp in North Carolina, testified that he tested
the buccal swabs and that he could not exclude the appellant as the father of the victim’s
baby. He stated that “[t]he probability of paternity is 99.99% that [the appellant] is the
biological father opposed to a random male in the . . . Hispanic population.”

       After the State rested its case-in-chief, defense counsel moved for a judgment of
acquittal on count five, which charged the appellant with digitally penetrating the victim.
Without objection from the State, the trial court granted the motion.

       The appellant, who was the sole defense witness, testified that he was originally from
Guatemala and that his wife and four children still lived there. The appellant’s “first
language” was Acateco, “a dialect from the region of San Miguel”; Spanish was his “second
language.”2 The appellant said that when he was seven years old, he began attending school.
His family was poor, and after one year, he left school and started working. The appellant
thought he came to Florida from Guatemala in 2005, but he was not certain of the year. In
2008, he came to Knoxville to stay with the victim’s mother.

      The appellant acknowledged that he had his own room at the victim’s residence, and
he maintained that he “got along very well” with the victim’s family. The appellant worked

       2
           The appellant testified through a Spanish interpreter.

                                                      -4-
as a landscaper, occasionally working with the victim’s father. He said that on December 21,
2010, he returned to Guatemala. He came back to Tennessee in May 2011 and lived with his
brother and sister-in-law.

       The appellant said that approximately one month after he returned to Tennessee, he
was confronted by the victim’s father. The victim’s father was upset and told the appellant
to remove his belongings from the victim’s home. The appellant went to the victim’s
residence with the victim’s father. When they arrived, the victim’s mother started crying and
asked, “‘Cousin, why did you do this to me? Why did you do this to my girl?’” The
appellant replied that he had not done anything, asserting, “I’m not an animal.” The
appellant told them that he would not have returned to the United States if he had done
anything wrong. The appellant asked the victim, “‘Why didn’t you tell it right away? I
mean, why are you just starting saying those things?’” During the conversation, the victim’s
father called 911, then he handed the telephone to the victim. The appellant said that the
victim’s accusations made him feel bad because the victim was his cousin’s daughter.

       The appellant said that around 4:00 p.m., after the 911 call, the police came to the
house. They arrested him and took him to the police station. After one or two hours, he
spoke with Investigator Clemons and an interpreter. The appellant said that he was wearing
“thin clothes” and that the room they were in was “really cold.” He said that the interview
lasted a long time. The appellant denied molesting the victim. During the interview, the
appellant revealed that on one occasion in May 2010, he drank four or five beers at the
residence. Afterward, he lay down on his bed to listen to music. The victim and her sister
came into his room, asked what he was doing, and accused him of being drunk. There was
no seating in the room, so the victim sat on the bed beside the appellant’s legs. The appellant
said, “And then she started pulling my zipper down. And I asked her, ‘What are you doing
there? You’re dirty. You – you cannot do that. I’m going to tell your dad.” The appellant
said that the victim stopped and apologized.

        The appellant denied having sex with the victim, attempting to touch her breasts, or
threatening her. The appellant also denied that his wife was involved in witchcraft, asserting
that they were Catholic. The appellant denied fathering the victim’s child, maintaining that
the DNA test results could be explained because they had “a common grandfather.”

        On cross-examination, the appellant said that he lived with the victim’s family for two
years, including the period between September and December 2010.

        The jury found the appellant guilty of one count of attempted aggravated sexual
battery and three counts of rape of a child. The trial court imposed a total effective sentence
of fifty years. On appeal, the appellant contends that the evidence was not sufficient to

                                              -5-
sustain his convictions; that the trial court erred in denying his motions to suppress DNA
evidence and his statement to police; and that the trial court erred in sentencing.

                                         II. Analysis

                                   A. Motions to Suppress

      The appellant contends that the trial court erred by denying his motions to suppress
the DNA test results and his statement to the police.

        In reviewing a trial court’s determinations regarding a suppression hearing,
“[q]uestions of credibility of the witnesses, the weight and value of the evidence, and
resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier of
fact.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Thus, “a trial court’s findings of fact
in a suppression hearing will be upheld unless the evidence preponderates otherwise.” Id.
Nevertheless, appellate courts will review the trial court’s application of law to the facts
purely de novo. See State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001). Furthermore, the
State, as the prevailing party, is “entitled to the strongest legitimate view of the evidence
adduced at the suppression hearing as well as all reasonable and legitimate inferences that
may be drawn from that evidence.” Odom, 928 S.W.2d at 23. Moreover, we note that “in
evaluating the correctness of a trial court’s ruling on a pretrial motion to suppress, appellate
courts may consider the proof adduced both at the suppression hearing and at trial.” State
v. Henning, 975 S.W.2d 290, 299 (Tenn. 1998).

                                      1. DNA Evidence

        The appellant contends that the trial court erred by admitting the DNA test results
establishing the paternity of the victim’s baby. The appellant maintains that although he
consented to the police’s collection of a buccal swab, the consent was not “knowingly and
intelligently” given.

        At a pretrial motion hearing, defense counsel acknowledged that before the DNA
evidence was collected, the appellant was advised of his Miranda rights, that he waived those
rights, and that he consented to the collection of a buccal swab. Defense counsel alleged,
however, that the appellant’s consent was not “knowingly and intelligently” given because
the police did not tell the appellant that the buccal swab would be used for DNA testing. The
State asserted that in order for the consent to be valid, it was not required to “go into how
DNA works.”




                                              -6-
        Both the Fourth Amendment to the United States Constitution and article I, section
7 of the Tennessee Constitution provide protection for citizens against “unreasonable
searches and seizures.” Generally, a warrantless search is considered presumptively
unreasonable, thus violative of constitutional protections. See State v. Walker, 12 S.W.3d
460, 467 (Tenn. 2000). Our supreme court has noted that, “[i]t is, of course, well settled that
one of the exceptions to the warrant requirement is a search conducted pursuant to consent.”
State v. Bartram, 925 S.W.2d 227, 230 (Tenn. 1996) (citing Schneckloth v. Bustamonte, 412
U.S. 218, 219 (1973), and State v. Jackson, 889 S.W.2d 219, 221 (Tenn. Crim. App. 1993)).
“The sufficiency of consent depends largely upon the facts and circumstances in a particular
case.” Jackson, 889 S.W.2d at 221. The prosecution bears the burden of proving that the
appellant freely and voluntarily gave consent. See State v. McMahan, 650 S.W.2d 383, 386
(Tenn. Crim. App. 1983). We further observe that “‘[t]he existence of consent and whether
it was voluntarily given are questions of fact.’” State v. Ashworth, 3 S.W.3d 25, 29 (Tenn.
Crim. App. 1999) (quoting McMahan, 650 S.W.2d at 386). Our supreme court has stated
that the following factors are to be considered in evaluating the voluntariness of consent:

              “1. Time and place of the encounter;

              2. Whether the encounter was in a public or secluded place;

              3. The number of officers present;

              4. The degree of hostility;

              5. Whether weapons were displayed;

              6. Whether consent was requested; and

              7. Whether the consenter initiated contact with the police.”

State v. Cox, 171 S.W.3d 174, 185 (Tenn. 2005) (quoting 79 C.J.S. Searches and Seizures
§ 119(b) (1995 & Supp. 2004)).

       On appeal, the appellant acknowledges that he consented to the collection of a buccal
swab. However, he contends that he was not told the swab would be used for DNA testing;
therefore, his consent was not “knowingly and intelligently” given. Regarding this claim, he
notes that he had a limited education, he was unfamiliar with English, and Spanish was his
second language. He contends that his misstatement of his age as twenty-seven or twenty-
eight when he was only twenty-three years old indicates his “complete lack of
sophistication.” The appellant also contends that the police coerced him into giving consent

                                              -7-
by keeping him “at the police station for ten and a half hours” and“yell[ing] at him, t[elling]
him that he needed to be a man, [and] needed to fess up.”

         The trial court found that the appellant understood his rights and that he knowingly
and voluntarily waived his rights. We agree with the trial court. The transcript of the
appellant’s interview reflects that although the appellant said he was twenty-seven or twenty-
eight years old, he also said that he did not “really know” his correct age. The transcript
further reflects that shortly after the appellant was advised of his Miranda rights, he
consented to the collection of the buccal swab. Further, at the suppression hearing, Officer
Ferro, who acted as the Spanish interpreter for the interview, testified that he advised the
appellant of his Miranda rights, that the appellant appeared to understand his rights, and that
the appellant waived his rights. The appellant did not testify at the suppression hearing, and,
at trial, he did not claim he did not understand that he was giving his consent to DNA testing.
To the contrary, he testified that he told the police, “‘I didn’t do it.’ And then I said, ‘I – I
want to have a test done.’ Because I asked for that test because I knew that I didn’t do it.”
We conclude that the evidence does not preponderate against the trial court’s ruling that the
appellant voluntarily consented to the collection of a buccal swab for the purpose of DNA
testing.

                                    2. Statement to Police

       The appellant contends that the trial court erred by finding that his statement to police
was admissible. Specifically, he contends that he did not knowingly and voluntarily waive
his Miranda rights. Additionally, the appellant contends that the admission of his statement,
which revealed that he had “sexual contact with the alleged victim outside the indictment
date,” violated Tennessee Rule of Evidence 404(b).

       At the hearing on the motion, defense counsel stated that the appellant was taken from
the victim’s home at 5:00 p.m., that he was transported to the police station, that the
interrogation began at 10:00 p.m., and that the questioning lasted about four hours. Defense
counsel said, “I believe they asked for DNA around minute 25, so he’d already been at the
police station for just shy of five and a half hours of that time.” Defense counsel further
contended that the appellant had a limited education and that the officers questioned him in
Spanish, which was his second language. Defense counsel contended that the appellant
“barely reads and writes Spanish if at all.”

       Knoxville Police Officer Nicholas Ferro testified that he had worked as a Spanish
translator for the police department approximately 200 times. In the instant case, Investigator
Clemons requested that Officer Ferro translate during her questioning of the appellant.
Officer Ferro read the appellant an advice of rights form, which apprised him of his Miranda

                                               -8-
rights. Officer Ferro said that the appellant had no questions, did not seem confused, and
waived his rights. The appellant placed his initials on the form after each provision was read
to him. Specifically, two of the provisions asked whether the appellant understood his rights
and whether the appellant wanted to make a statement. Following those provisions, the
appellant wrote “sí,” the Spanish word for “yes.” Additionally, the appellant signed and
dated the advice of rights form. The appellant did not ask for an attorney or request that the
questioning cease.

        On cross-examination, Officer Ferro said that when he asked the appellant his age, the
appellant responded that he was twenty-seven or twenty-eight years old and that he was born
in 1983. When Officer Ferro asked whether the appellant understood why he was at the
police station, the appellant replied that he did not. The appellant told Officer Ferro that his
sister’s name was Magdalena, but he could not spell her name. The appellant told Officer
Ferro that he could not write in Spanish and therefore was unable to write his statement.

       At the request of defense counsel, the trial court agreed to read the transcript of the
interview prior to ruling on the issue.

        The parties stipulated that the appellant denied the allegations of sexual abuse for
approximately four hours; however, near the end of the interview, he acknowledged that he
had a sexual encounter with the victim in May 2010. The State conceded that the indictment
did not allege that any abuse occurred in May 2010. Nevertheless, the State argued that the
act occurred between September and December 2010, the time frame alleged in the
indictment, and that the appellant was confused about the month in which the act occurred.
Defense counsel responded that the State’s argument was “absurd,” contending that the
appellant was not confused about the month and that he clearly knew the time frame to which
he was referring. The court said, “At this point I’m certainly inclined to allow his admissions
– his admission that he had sexual contact or sexual activity with the victim. Unless [defense
counsel] win[s] on the Miranda issue.”

      Defense counsel continued to argue, maintaining that pursuant to State v. Rickman,
876 S.W.2d 824 (Tenn. 1994), the trial court was obligated to exclude the portion of the
statement admitting sexual contact with the victim in May 2010. The State asserted:

                     My victim says everything happened in the fall. [The
              appellant] says it happened in May. Our argument is they’re
              talking about the same sexual encounter. But we’re talking
              about a man – if we want to go with what they’ve argued earlier,
              who doesn’t even know how old he is. He doesn’t know how
              many years he’s been on this earth, so I would argue that if

                                              -9-
              they’re arguing he doesn’t even – he’s not smart enough to
              know how many years he’s been on the earth, he’s clearly
              confused between May and November.

        The trial court stated that initially it had believed the appellant was referring to an
incident that occurred within the time frame of the indictment. However, after discerning
that the appellant “did not acknowledge . . . sexual activity within the timeframe [sic] of the
indictment,” the court held that the appellant’s acknowledgment of a sexual act was
admissible but that the date should be excluded.

        We note that on the day of trial, the State provided appellant a redacted statement in
compliance with the trial court’s ruling at the suppression hearing. However, the State did
not introduce the appellant’s statement at trial, and the contents of the statement were not
mentioned by the State in its case-in-chief. At the motion for new trial hearing, the State
explained that it chose not to use the statement because of the uncertainty regarding the date
of the incident. Instead, the appellant testified about the statement during his direct
examination, alleging that the encounter he acknowledged occurred in May. According to
the appellant, the victim tried to pull his zipper down and he stopped her. Thus, the appellant
asserted that the victim, not the appellant, initiated the acts in question and that he was
completely innocent of all wrongdoing.

        The appellant contends that the trial court should have followed the dictates of Rule
404(b) and Rickman and suppressed the statement. He further contends that because the trial
court did not suppress the statement, he was forced to make a tactical decision to introduce
the statement first.

              Tennessee Rule of Evidence 404 provides:

              (b) Other Crimes, Wrongs, or Acts. - Evidence of other crimes,
              wrongs, or acts is not admissible to prove the character of a
              person in order to show action in conformity with the character
              trait. It may, however, be admissible for other purposes. The
              conditions which must be satisfied before allowing such
              evidence are:

              (1) The court upon request must hold a hearing outside the
              jury’s presence;

              (2) The court must determine that a material issue exists other
              than conduct conforming with a character trait and must upon

                                             -10-
              request state on the record the material issue, the ruling, and the
              reasons for admitting the evidence;

              (3) The court must find proof of the other crime, wrong, or act
              to be clear and convincing; and

              (4) The court must exclude the evidence if its probative value is
              outweighed by the danger of unfair prejudice.

See also State v. Thacker, 164 S.W.3d 208, 240 (Tenn. 2005), State v. Parton, 694 S.W.2d
299, 302 (Tenn. 1985). A trial court’s decision regarding the admission of Rule 404(b)
evidence will be reviewed under an abuse of discretion standard; however, “the decision of
the trial court should be afforded no deference unless there has been substantial compliance
with the procedural requirements of the Rule.” State v. DuBose, 953 S.W.2d 649, 652 (Tenn.
1997).

       Generally, Rule 404(b) is a rule of exclusion. State v. Jones, 15 S.W.3d 880, 894
(Tenn. Crim. App. 1999). However, certain exceptions exist, such as when the other crime,
wrong, or act “is relevant to an issue other than the accused’s character such as identity,
motive, common scheme or plan, intent, or absence of mistake.” State v. McCary, 119
S.W.3d 226, 243 (Tenn. Crim. App. 2003).

       In State v. Rickman, 876 S.W.2d 824, 829 (Tenn. 1994), our supreme court carved
out a special exception, which allowed the admission of “evidence of other sex crimes
[between a defendant and his victim] when an indictment is not time specific and when the
evidence relates to sex crimes that allegedly occurred during the time as charged in the
indictment.” However, the Rickman court “expressly declined to establish a ‘sex crimes
exception’ to the general rule that evidence of uncharged crimes is inadmissible [and instead]
upheld the general rule, excluding evidence of other crimes or bad acts as irrelevant and
prejudicial.” McCary, 119 S.W.3d at 243-44.

       In the instant case, the trial court ultimately decided that the appellant’s statement
regarding prior contact with the victim did not fall within the time frame of the indictment;
accordingly, the conduct was not admissible under the Rickman exception. The record
reveals that the trial court failed to properly perform the Rule 404(b) analysis regarding the
prior conduct. Nevertheless, the State did not introduce proof of the conduct during its case-
in-chief. Instead, the appellant made a tactical decision to introduce proof of the conduct.
Accordingly, we conclude that he is not entitled to relief on this issue. See Tenn. R. App.
P. 36(a) (providing that “[n]othing in this rule shall be construed as requiring relief be



                                             -11-
granted to a party responsible for an error or who failed to take whatever action was
reasonably available to prevent or nullify the harmful effect of an error”).

                               B. Sufficiency of the Evidence

        The appellant complains that the evidence was insufficient to sustain his convictions
of attempted aggravated sexual battery and three counts of rape of a child. On appeal, a jury
conviction removes the presumption of the appellant’s innocence and replaces it with one of
guilt, so that the appellant carries the burden of demonstrating to this court why the evidence
will not support the jury’s findings. See State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).
The appellant must establish that no reasonable trier of fact could have found the essential
elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307,
319 (1979); Tenn. R. App. P. 13(e).

       Accordingly, on appeal, the State is entitled to the strongest legitimate view of the
evidence and all reasonable inferences which may be drawn therefrom. See State v.
Williams, 657 S.W.2d 405, 410 (Tenn. 1983). In other words, questions concerning the
credibility of witnesses and the weight and value to be given the evidence, as well as all
factual issues raised by the evidence, are resolved by the trier of fact, and not the appellate
courts. See State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990).

       The guilt of a defendant, including any fact required to be proven, may be predicated
upon direct evidence, circumstantial evidence, or a combination of both direct and
circumstantial evidence. See State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App.
1999). Even though convictions may be established by different forms of evidence, the
standard of review for the sufficiency of that evidence is the same whether the conviction is
based upon direct or circumstantial evidence. See State v. Dorantes, 331 S.W.3d 370, 379
(Tenn. 2011).

        Regarding count one, the appellant was convicted of attempted aggravated sexual
battery based upon his attempt to touch the victim’s breasts. Aggravated sexual battery as
it applies to this case is defined as “unlawful sexual contact with a victim by the defendant
or the defendant by a victim [and] . . . [t]he victim is less than thirteen (13) years of age.”
Tenn. Code Ann. § 39-13-504(a)(4). “‘Sexual contact’ includes the intentional touching of
the victim’s [or] the defendant’s . . . intimate parts, . . . if that intentional touching can be
reasonably construed as being for the purpose of sexual arousal or gratification.” Tenn. Code
Ann. § 39-13-501(6). A criminal attempt occurs when a person acting with the kind of
culpability otherwise required for the offense:




                                              -12-
              (1) Intentionally engages in action or causes a result that would
              constitute an offense if the circumstances surrounding the
              conduct were as the person believes them to be;

              (2) Acts with intent to cause a result that is an element of the
              offense, and believes the conduct will cause the result without
              further conduct on the person’s part; or

              (3) Acts with intent to complete a course of action or cause a
              result that would constitute the offense, under the circumstances
              surrounding the conduct as the person believes them to be, and
              the conduct constitutes a substantial step toward the commission
              of the offense.

Tenn. Code Ann. § 39-12-101(a)(1)-(3).

       The appellant complains that the victim’s “testimony only set forth a very vague,
general, non-specific description of the alleged act.” We disagree. The victim, who was
twelve years old at the time of the offense, testified that the appellant pulled her tank top
down “half way” and tried to remove the top completely. The appellant attempted to grab
her breast and was thwarted only when the victim “stabbed” him with a pencil. This
testimony is sufficient to sustain the appellant’s conviction for attempted aggravated sexual
battery.

        Rape of a child is the “unlawful sexual penetration of a victim by the defendant . . .
if the victim is more than three (3) years of age but less than thirteen (13) years of age.”
Tenn. Code Ann. § 39-13-522(a). “‘Sexual penetration’ means sexual intercourse,
cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of
a person’s body or of any object into the genital or anal openings of the victim’s, the
defendant’s, or any other person’s body, but emission of semen is not required.” Tenn. Code
Ann. § 39-13-501(7). Our supreme court has defined fellatio as “a sex act accomplished with
the male sex organ and the mouth of another[, however,] intrusion into the victim’s mouth
is not required.” State v. Marcum, 109 S.W.3d 300, 304 (Tenn. 2003) (citing Tenn. Pattern
Jury Inst.-Crim 10.06); see also State v. Daniel Pottebaum, No. M2007-02108-CCA-R3-CD,
2008 WL 5397848, at *15 (Tenn. Crim. App. at Nashville, Dec. 30, 2008).

        At trial, the victim testified that on one occasion between September and December
2010, the appellant grabbed her head, pulled it toward his penis, then touched and rubbed her
lips with his penis. These actions were the basis for the appellant’s conviction on count two.
On another occasion, around October 2010, the victim was preparing to take a shower, and

                                             -13-
she had a towel wrapped around her. The appellant came into the room, pulled the towel
away, shoved the victim backward onto the bed, placed the towel over her head, removed her
pants, and penetrated her vagina with his penis. These actions were the basis for the
appellant’s conviction in count three. Regarding count four, the victim testified that in
December 2010, the victim was in her mother’s bedroom when the appellant walked in,
pulled her to the bed, put a blanket over her head, held her hands down, pulled her pants
down, and penetrated her vagina with his penis. The victim said that her last menstrual
period was in November 2010. In August 2011, the victim had a baby, and DNA testing
revealed that the appellant was the child’s father.

        The appellant complains that “but for” the evidence that was admitted pursuant to the
trial court’s erroneous rulings on his motions to suppress, “it would have been the [victim’s]
word versus the [a]ppellant’s word.” In other words, the appellant contends that without the
DNA evidence and his statement to police, the jury would have determined that his testimony
was more credible than the victim’s testimony. As we concluded previously, the trial court
did not err in admitting the challenged evidence. We conclude that the evidence was
sufficient to sustain the appellant’s convictions for rape of a child.

                                       C. Sentencing

       Finally, the appellant complains that the trial court erred by imposing consecutive
sentencing, resulting in a total effective sentence of fifty years.

        At the sentencing hearing, the State introduced the appellant’s presentence report. The
report reflected that the appellant was convicted of driving under the influence (DUI) on
December 22, 2011, and that he received probation. Thereafter, his probation was revoked
on October 13, 2011. The appellant was then deported, but he later returned to the United
States illegally. The State also introduced the appellant’s psychosexual evaluation, which
reflected that the appellant “took no responsibility for his behavior,” that the appellant’s
“level of dangerousness cannot really be predicted from the information gathered in this
assessment,” and that the testers did “not believe[] that [the appellant] was honest in his
account of the offense.” The evaluation further reflected that despite the paternity test
revealing that he was the father of the victim’s child, he nevertheless “denied any sexual
activity with the victim.”

       The victim’s father testified that the appellant

              has destroyed the whole life of my daughter. He destroyed her
              complete life. She is my firstborn daughter. I trusted him. He’s
              a member of my family. He is my wife’s cousin.

                                             -14-
                      I – I – I am totally destroyed. I’m constantly thinking day
              and night of my daughter. I want him to have a lifelong
              sentence. I don’t want him to be released here. If – if – if he
              gets released here in the United States, he will come back to the
              United States. In my – I don’t want to see him ever again in my
              life. That’s all I wanted to say. That’s it.

       Thereafter, the appellant made the following allocution:

              I just want to say I didn’t do it. And she is my cousin’s
              daughter, and I don’t know why she’s naming me. And I know
              that I didn’t do any harm on her, and that’s why I came to this
              country. Because – because if I would have done it, I wouldn’t
              have come back to this country. I know I would have gone to
              jail.

                     Why did I come to this country?

                      Because I have children. I have four children. I have
              family and I have four children. And I had three children, and
              my wife, she – when I came here she was pregnant, and that’s
              the whole little child that I have. And – and that’s why I have
              to go back to my country. That’s why my wife sen[t] the judge
              a letter because my children are suffering and I have to be with
              them.

                     And – and I don’t know what’s going to happen to me,
              but I want my children to have studies because my father was
              poor and I couldn’t have any studies.

       Defense counsel argued that the appellant was a young man, that he had a good work
history, and that he was responsible for supporting his children.

        The trial court sentenced the appellant to twenty-five years for each rape of a child
conviction. See Tenn. Code Ann. § 39-13-522(b)(2)(A). Additionally, the court sentenced
the appellant as a standard, Range I offender to three years for the attempted aggravated
sexual battery conviction, the minimum sentence for that offense. See Tenn. Code Ann. §§
39-13-504(a)(4); 39-12-107(a); 40-35-112(a)(3). The court ordered that the sentence for rape
of a child on count three be served consecutively to the sentence for rape of a child on count



                                             -15-
two with the remaining sentences to be served concurrently, for a total effective sentence of
fifty years. See Tenn. Code Ann. § 40-35-115(b)(5).

        Previously, appellate review of the length, range, or manner of service of a sentence
was de novo with a presumption of correctness. See Tenn. Code Ann. § 40-35-401(d).
However, our supreme court recently announced that “sentences imposed by the trial court
within the appropriate statutory range are to be reviewed under an abuse of discretion
standard with a ‘presumption of reasonableness.’” State v. Bise, 380 S.W.3d 682, 708 (Tenn.
2012). Our supreme court has further stated that “the abuse of discretion standard,
accompanied by a presumption of reasonableness, applies to within-range sentences that
reflect a decision based upon the purposes and principles of sentencing, including the
questions related to probation or any other alternative sentence.” State v. Caudle, 388
S.W.3d 273, 278-79 (Tenn. 2012). Additionally, our supreme court has held “that the
appropriate standard of appellate review for consecutive sentencing is abuse of discretion
accompanied by a presumption of reasonableness.” State v. James Allen Pollard, __ S.W.3d
__, No. M2011-00332-SC-R11-CD, 2013 WL 6732667, at *7 (Tenn. at Nashville, Dec. 20,
2013). In conducting its review, this court considers the following factors: (1) the evidence,
if any, received at the trial and the sentencing hearing; (2) the presentence report; (3) the
principles of sentencing and arguments as to sentencing alternatives; (4) the nature and
characteristics of the criminal conduct involved; (5) evidence and information offered by the
parties on enhancement and mitigating factors; (6) any statistical information provided by the
administrative office of the courts as to sentencing practices for similar offenses in
Tennessee; (7) any statement by the appellant in his own behalf; and (8) the potential for
rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102, -103, -210; see also Bise,
380 S.W.3d at 697-98. The burden is on the appellant to demonstrate the impropriety of his
sentence. See Tenn. Code Ann. § 40-35-401, Sentencing Comm’n Cmts.

      In determining a specific sentence within a range of punishment, the trial court should
consider, but is not bound by, the following advisory guidelines:

                     (1) The minimum sentence within the range of
              punishment is the sentence that should be imposed, because the
              general assembly set the minimum length of sentence for each
              felony class to reflect the relative seriousness of each criminal
              offense in the felony classifications; and

                     (2) The sentence length within the range should be
              adjusted, as appropriate, by the presence or absence of
              mitigating and enhancement factors set out in §§ 40-35-113 and
              40-35-114.

                                             -16-
Tenn. Code Ann. § 40-35-210(c).

        Although the trial court should consider enhancement and mitigating factors, the
statutory enhancement factors are advisory only. See Tenn. Code Ann. § 40-35-114; see also
Bise, 380 S.W.3d at 701; State v. Carter, 254 S.W.3d 335, 343 (Tenn. 2008). Our supreme
court has stated that “a trial court’s weighing of various mitigating and enhancement factors
[is] left to the trial court’s sound discretion.” Carter, 254 S.W.3d at 345. In other words,
“the trial court is free to select any sentence within the applicable range so long as the length
of the sentence is ‘consistent with the purposes and principles of [the Sentencing Act].’” Id.
at 343. “[A]ppellate courts are therefore left with a narrower set of circumstances in which
they might find that a trial court has abused its discretion in setting the length of a
defendant’s sentence.” Id. at 345-46. “[They are] bound by a trial court’s decision as to the
length of the sentence imposed so long as it is imposed in a manner consistent with the
purposes and principles set out in sections -102 and -103 of the Sentencing Act.” Id. at 346.

        The appellant does not challenge the length of the individual sentences imposed by
the trial court. Instead, he challenges the imposition of consecutive sentencing. Generally,
“[w]hether sentences are to be served concurrently or consecutively is a matter addressed to
the sound discretion of the trial court.” State v. Adams, 973 S.W.2d 224, 230-31 (Tenn.
Crim. App. 1997). Tennessee Code Annotated section 40-35-115(b) contains the
discretionary criteria for imposing consecutive sentencing. See also State v. Wilkerson, 905
S.W.2d 933, 936 (Tenn. 1995). Because the criteria for determining consecutive sentencing
“are stated in the alternative[,] . . . only one [criterion] need exist to support the
appropriateness of consecutive sentencing.” State v. Mickens, 123 S.W.3d 355, 394 (Tenn.
Crim. App. 2003).

       In the instant case, the trial court imposed consecutive sentencing upon finding that
the appellant was

              convicted of two (2) or more statutory offenses involving sexual
              abuse of a minor with consideration of the aggravating
              circumstances arising from the relationship between the
              [appellant] and victim or victims, the time span of [appellant’s]
              undetected sexual activity, the nature and scope of the sexual
              acts and the extent of the residual, physical and mental damage
              to the victim or victims.

Tenn. Code Ann. § 40-35-115(b)(5).




                                              -17-
       The appellant contends that he was not one of the victim’s caregivers; therefore, he
did not have a close relationship to exploit in order to molest the victim. Further, he asserts
that “this particular case is not as grievous as instances where children are abused for a
period of years or even a period of a year.” Additionally, the appellant contends that the acts
for which he was convicted were “not as grievous as those committed against smaller
children. Nor are they particularly deviant sex acts, as they do not consist of fetishistic or
unusual sexual behavior.” The appellant also states that there was no proof of any “residual,
physical and mental damage to the victim.” The appellant contends, therefore, that the trial
court erred by imposing consecutive sentencing.

        The proof at trial and at the sentencing hearing revealed that the victim’s family
allowed the appellant to live with them because he and the victim’s mother were cousins. The
victim’s father stated that he had trusted the appellant because he was family. Testimony
revealed that the victim and her siblings were left in the appellant’s care while her parents
were shopping or working. The molestation took place in the victim’s home when her
parents were not there. Accordingly, the familial relationship gave the appellant access to
the victim. The trial court found that “there’s no question that this was a familial
relationship, one involving trust. And the fact that they were family and had – had close –
close interactions with each other highlights the importance of the trust that should have been
safely taken with regard to the [appellant].” The court noted that the victim’s family
accepted the appellant into their home and that he violated their trust. Additionally, the court
recalled that the appellant gave a statement to the police about “how horrified he [was] every
time . . . the suggestion was made that he had sex with his own relative. He himself
expressed the notion of how morally repugnant that is repeatedly and – and used that – that
indignation as . . . a way to defend himself against the accusation.”

        The court further noted that the sexual activity took place repeatedly over a span of
three or four months. The court said, “This is not a crime of impulse, of a momentary loss
of control. This was a course of conduct entered into gradually and pursued and repeated for
months.” The court also observed that “there were several different sexual acts. They were
in some cases at least moderately violent where he just literally pushed her down, put
something over her face, and got on top of her and – and raped her.” The court further noted
that the appellant threatened to harm the victim and her family if she revealed that he had
molested her. In her victim impact statement, the victim said that she was frightened by the
threats and that she was embarrassed by the violation. The court found that the appellant
“robbed [the victim] of her childhood.” The court observed that the victim’s pregnancy
imposed upon her “[m]ore responsibility than a child her age should ever be require[d] to
shoulder . . . and this is going to be a permanent characteristic of her life.” The court also
was bothered by the evaluation team’s opinion that the appellant did not accept responsibility
for his actions. After considering the foregoing, the trial court ordered that two of the

                                              -18-
twenty-five-year sentences be served consecutively for a total effective sentence of fifty
years. See State v. Marcos Enrique Collazo, Sr., No. M2009-02319-CCA-R3-CD, 2011 WL
4529643, at *20 (Tenn. Crim. App. at Nashville, Sept. 29, 2011). We conclude that the trial
court did not err by imposing consecutive sentencing.

                                       III. Conclusion

       In sum, we conclude that the trial court did not err in the admission of evidence; that
the evidence was sufficient to sustain the appellant’s convictions, and that the trial court did
not err in sentencing the appellant. Accordingly, the judgments of the trial court are
affirmed.


                                                     ___________________________________
                                                     NORMA McGEE OGLE, JUDGE




                                              -19-
