          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT KNOXVILLE            FILED
                            OCTOBER SESSION, 1998         April 13, 1999

                                                        Cecil Crowson, Jr.
                                                        Appellate C ourt Clerk

STATE OF TENNESSEE,                 )   C.C.A. NO. 03C01-9804-CR-00129
                                    )
            Appellee,               )   GREENE COUNTY
                                    )
V.                                  )   HON. JAMES E. BECKNER, JUDGE
                                    )
BOBBY DALE FRANKLIN, SR.            )   (AGGRAVATED SEXUAL
                                    )   BATTERY; AGG RAVATED RAPE;
            Appe llant.             )   RAPE O F A CHILD )



FOR THE APPELLANT:                      FOR THE APPELLEE:

GREG W. EICH ELM AN                     JOHN KNOX WALKUP
District Public Defender                Attorney General & Reporter

MICHAEL A. WALCHER                      ELIZABETH B. MARNEY
Assistant Public Defender               Assistant Attorney General
1609 Co llege Park D rive               2nd Floor, Cordell Hull Building
Morristown, TN 37813                    425 Fifth Avenue North
                                        Nashville, TN 37243

                                        C. BERKELEY BELL, JR.
                                        District Attorney General

                                        ERIC D. CHRISTIANSEN
                                        Assistant District Attorney General
                                        109 South Main Street, Suite 501
                                        Greeneville, TN 37743




OPINION FILED ________________________

AFFIRMED AS MODIFIED

THOMAS T. WOODALL, JUDGE
                                   OPINION

       The Defe ndan t, Bobb y Dale Frank lin, appeals as of right his convictions for

aggravated sexual battery, aggravated rape, and rape of a child, following a jury trial

in the Criminal Court of Greene County. The convictions are as follows:


       OFFENSE                                  DATE OF            SENTENCE
                                                OFFENSE
                                                (as alle ged in
                                                presen tment)

Count O ne:     aggravated sexual battery       between March      twelve (12) years
                                                1990 and ___
                                                1992

Count T wo:     aggravate d sexual battery      ___ 1992           twelve (12) years

Count Three : aggravated rape                   summer 1992        twenty-five (25) years

Count Four:     rape o f a child                between ___        twenty-five(25) years
                                                1992 and
                                                ___ 1993

Count Five:     rape o f a child                June 3, 1995       twenty-five (25) years

Count Six:      rape of a child                 June 4, 1995       twenty-five(25) years

Count Se ven: aggravate d sexual battery        between June 5 twelve (12) years
                                                and June 9, 1995

Count Eig ht:   aggravated se xual battery      June 29, 1992      twelve (12) years


The trial court ordered his four convictions for rape to run consecutively with each

other and conc urrent to the four con victions for aggrava ted sexual battery, for an

effective sentence of 100 years. In this ap peal, D efend ant rais es the followin g six

(6) issues :




                                          -2-
               I.    Whether the trial cour t erred in adm itting
                     certain testimon y;

               II.   W hether the trial court’s verdict forms were
                           improper;

              III.   Whether Count Fo ur should be dismissed
                     (Count Five o f the presentm ent);

             IV.     W hether the trial c ourt er red in e xcluding
                     certain testimon y;

              V.     Whether the trial court erred in allowing the
                     testimony of Dr. Reardon regard ing
                     penetration; and

              VI.    Whether the trial court committed sentencing
                     errors.


After a ca reful review of the reco rd, we affirm the judgm ent of the tria l court.


                                 Sum mary o f the Fac ts


      Testimony at trial revealed that on June 9, 1995, the twelve-year-old victim,

T.S. (we will use the initials rather than the full name of the victim), insisted on going

to work with her mother. While the mother and d augh ter wer e in the car, the victim

started crying a nd sa id that D efend ant, the victim’s stepfather, had raped her. The

mother immediately notified authorities and took T.S. to the hospital emergency

room to be examined.


      Dr. Dona ld Verlin Tucker, Jr. examined T.S. at the eme rgenc y room and h is

examination revealed a history of sexual abuse consistent with that which she had

told him.   He tes tified tha t he exa mine d the vic tim five d ays afte r the pe nile

penetration had allegedly occurred. He testified that the genitalia examination was

norma l except for th e abse nce of a h ymen .




                                            -3-
      Dr. Peter Reardon, an obstetrician/gynecologist, took a medical history of the

victim on June 14, 1995, which included her statement that she had bled for two

days after penile penetration on Sunday, June 4, 1995 , and had experienced two

other vaginal penetrations, one digitally and one orally. Dr. Reardon discovered two

sma ll broken areas on the victim’s hymen when doing a pelvic examination, but

found no recent trauma to the vagina or any laceration s. Dr. Re ardon s aid that a

“recent trauma ” to the hym en take s abou t six to eight days to heal after being torn

and tha t after ten da ys it would lo ok like a he aled wo und.



      The victim testified at trial about various types of sexual abuse inflicted by

Defendant, described the circumstances surrounding each incident of abuse, and

gave approximate dates for most incidents based on where the family was living,

what car the family was driving, and birthdays of family members. The time span for

Defe ndan t’s sexual abuse oc curred over a seven-year period beginning when T.S.

was five and ending when she was 12.



      T.S. testified that her family moved to the “blockhouse” when she was about

five years old and that a barn was located on the prope rty. W hile the family live d in

the “blockho use,” De fendan t took the vic tim to the barn to feed the cats. In the barn,

Defendant placed her on stacked bales of hay, removed her panties, and fondled

her. T.S. d id not te ll her mother about this incident before June 9, 1995, although

she testified that she believed that this incident occurred in 1987.




       In 1990, when the victim had finished the second grade, th e family m oved to

a house on Snake Hollow Road. At that time, the family owned a red Thunderbird.

                                            -4-
The victim said that she and Defendant were in the red Thunderbird traveling

towards the fam ily’s prior residence, the “blockhouse,” when Defendant began

“playing with himself,” pulled to the side of the road, and stopped the car. Defendant

then walked to the passenger side of the car, removed the victim’s “b ottom c lothes,”

and started rubbing her vagin a and m asturba ting. Defendant ejaculated on T.S. and

wiped the ejaculate off with his bandana handkerchief. The victim did not tell her

mother about this incident before June 9, 1995, because she was afraid that

Defendant might hurt her by “whippin g” her. Up on obje ction by D efenda nt, the trial

court instructed the jury to disregard the victim’s statement about Defendant

“whipping” her. Defendant moved for a mistrial based on that statement, but the trial

court ove rruled it.



       T.S. testified that while she and Defendant were riding in a red Buick car he

had purchased that day, Defendant said he needed to go to his employer’s garage

to roll up the windows of his garbage truck. Other proof showed that the vehicle was

purchased on June 29, 1992. While the victim was sitting in the Buick, she locked

the car doors because she was afraid that Defendant “might try something.” After

Defendant told the victim to unlock the doors, he took her out of the car, laid her on

a pallet, removed her panties, got on top of her, and began rubbing his penis against

her. When the victim said “you promised you wouldn’t do this again ,” Defe ndan t told

her that this was the last time.



       Sometime before her bro ther’s Augu st 22n d birthd ay in an unspe cified year,

Defen dant, the victim, and her brother were taking items to the garage at the Snake

Hollow Road residence. Defendant sent the victim’s brother to feed the chickens.

When Defendant and T.S. were alone in the garage, Defendant rubbed her vagina,

                                          -5-
masturbated, ejaculated, and wiped the ejaculate off her with his bandana

handk erchief. T.S. stated that “this happened several times, abou t four or five

times.”



       On another occasion, Defendant was stan ding be side the B uick with h is pants

unzipped and his penis exposed while the victim’s mother was mowing the yard.

Defen dant forc ed T.S . to put her m outh on his penis and to pe rform fellatio .



       During the wintertime after the year 1990, Defendant used Vaseline that was

kept on the victim ’s mothe r’s dresse r to pene trate the victim digitally in the adults’

bedroo m.



       On the Saturday after school ended in 199 5, De fenda nt cam e into th e victim ’s

bedroom while victim was reading a book, pulled down her shorts and panties, and

said he was checking to see if she had “been with any boys.” Then he performed

cunnilingus on her. After telling her he was going to do what he “usually” did, he

rubbed her vagina, mas turbate d, ejac ulated , and w iped th e ejac ulate o ff with his

bandana handkerchief. Neither the victim’s mother nor brother were at home during

this inciden t.



       On June 4, 1995, again while her mother and brother were away from the

house, Defendant penetrated the victim with his penis in the victim’s bedroom.

Defendant told T.S. that he would kill her if she told anyone. The victim was crying

and bleeding from the penetration and she continued to bleed for two days.




                                           -6-
       On June 7, 1995, Defen dant, the victim, and her brother went to Kinser Park.

They had been on their way to visit the children’s mother at work, but learned that

the mother could not get off to see them. As the victim and Defendant walked

through the woods at Kinser Park looking for a place to fish, Defendant began

playing with the victim’s breasts through her clothes. T.S. said that she tried to get

away, bu t Defend ant told he r, “If you try to get a way it ma kes m e want yo u more .”



       At the co nclus ion of th e victim ’s testimony on direct examination, counsel for

Defendant objected to her statement that Defendant had sexually battered her four

or five times in the Snake Hollow garage. The basis for defense counsel’s objection

was that these were “other bad ac ts” not covered by the Bill of Particulars.

Overruling the mo tion for a m istrial, the cou rt stated that the charges could be

defined specifically enough to avoid any jury confusion.



       Same ra Zavaro , a forensic scientist with the TBI, testified that the fitted bottom

sheet from the victim’s bed teste d positive for blood and semen. She further testified

that after DNA testing on the bed sheet, Defendant could not be excluded as the

contributo r of the spe rm on th e victim’s b ed she et.



       Defendant testified and denied that he ha d mo lested or had sex with his

stepdaug hter.



       The jury found Defend ant guilty of four counts o f aggravated se xual battery

and four counts of rape of a child. As reflected in the judgment form, the trial court

changed one of the child rape convictions (Count Three) to aggravated rape

because the State w as no t able to estab lish tha t it occurred after July 1, 1992, the

                                            -7-
effective date of the “rape of a child” statute . See Tenn. Code Ann. § 39-13-522;

State v. Case, 884 S.W .2d 146, 147 (Tenn. Crim . App. 1994 ).



                   I. Admissibility and Effect of Certain Testimony



      Defendant argues in this issue that the “State was allowed, over obje ction, to

introduce irrelevant prejudicial uncharged conduct.”           Specifically, Defendant

contends that the victim was allowed to testify about an incident that was time-barred

by the statute of limitations. Defendant asserts that the count of the presentment

charging this offense had already been dismis sed. H e also conte sts the victim’s

testimony that Defendant “whipped her hard” and that he sexually assaulted her “four

or five times” in the garage at the Snake Hollow residence. Finally, he argues that

it was improper for the victim’s mother to testify that Defendant had threate ned to kill

her and to hurt the vic tim.



      First, Defendant conte nds th at the vic tim was allowed to testify to an allegation

of aggravated sexual battery tha t was dism issed as being tim e-barred by the statu te

of limitations. This incident allegedly occurred in 1987 when the victim was about

five years old . The victim testified that Defendant took her to the barn to feed the

cats, and th ere he remo ved he r pantie s and fondle d her. F irst of all, Defendant has

waived this claimed error on appeal because he did not enter a contemporaneous

objection to the testimony. Tenn . R. App . P. 36(a); State v. Killebrew, 760 S.W.2d

228, 235 (T enn. C rim. App .), perm. to appeal denied (Tenn. 1988). However, even

if this issue is addresse d, it is without merit. The record does not indicate what

happened to this particular count, so we cannot say whether this count was

dismissed or severed. There should be no uncerta inty regard ing the sta tus of a

                                           -8-
count of a presentment, and it should be noted that it is the responsibility of the

appellant to pres ent an adeq uate re cord fo r review on ap peal. R egard less, th is

charge would n ot be time -barred, as Tennessee Code Annotated section 40-2-

101(d) and (e) which became effective in 1985, is a pplicable to this cha rge. See

Morgan v. State, 847 S.W .2d 538 , 540 (Tenn. Crim . App. 1992 ) (citing 1985 Acts,

ch. 478, § 21 ). This sta tute states that prosecution for a ggravated se xual battery,

among other offenses, had to commence no later than the date the child attains the

age of majority or within four (4) years after the commission of the offense,

whic hever occurs la ter. Tenn . Code Ann. § 4 0-2-101 (d). The refore, pro secution

would have had to commence in 1991 or before the victim reached the age of 18.

In the instant case, commencement of prosecution for this offense occurred in 1997

at which time the victim was only 14 or 15 years old.



       Second, Defendant has also waived any objection to the victim’s testimony

that Defendant took her to the Snake Hollow garage and sexually battered her “four

or five times” because Defe ndan t again mad e no c ontem poran eous objec tion to th is

testimony. Tenn . R. App . P. 36(a); Killebrew, 760 S.W.2d at 235. At the conclusion

of the victim’s testimon y on direct exam ination , defen se co unse l did ob ject to th is

statement and a sked for a m istrial. The court said that the charges could be defined

spec ifically enough to avoid any jury confusion.        Th e trial court did give a jury

instruction explaining the limited purpose of the evidence and explained that any

evidence that Defendant had committed a crime or crimes other than those charged

could not be considered to prove his disposition to commit the charged crimes. The

jury is deemed to have followed the court’s instruction, and we find the instruction

sufficient to c ure any p rejudice to Defen dant. See State v. Harris , 839 S.W.2d 54,

72 (Te nn. 199 2).

                                            -9-
       Next, Defenda nt did m ake a conte mpo raneo us ob jection to the vic tim’s

testimony that she was afraid of Defendant because he “whipped her hard.” In the

presence of the jury, defense counsel asked for an instruction concerning the

testimony about the whipping, an d the court instructed that “the jury should disreg ard

that and not consider it for any p urpose.” Th e jury is presum ed to have followed the

trial court’s instru ction.   Id.   Moreov er, this tes timony by the witness does not

“affirm atively appear to have affected the result of the trial on the merits.” Tenn. R.

Crim. P. 52(a). Acco rdingly , any er ror tha t occu rred as a resu lt of this vic tim’s

unsolicited statem ent was ha rmless. Te nn. R. App . P. 36(b).



       Finally, Defendant states that the victim’s mother should not have been

allowed to testify that Defendant had threatened to kill her and/or hurt the victim.

Defendant did not mak e a contem poraneous objection . See Tenn. R . App. 36(a).

In any event, we do not find this evidence to have affected the result of this tria l.

Tenn . R. Crim . P. 52(a). T his issue is without m erit.



                                      II. Verdict Forms



       In his seco nd issue , Defend ant claims that the trial court’s verdict forms

constituted improper commentary on the facts. The verdict forms submitted to the

jury specified the eight charged crimes as follows:

              [Count One] after the parties moved to Snake Hollow
              Road (after March, 1990) and before the parties
              purchased a Buick automobile (June, 1992), when the
              defendant and the victim, [ ], were in a re d Ford
              Thund erbird and were g oing to their former residence, the
              block house;



                                            -10-
              [Count Two] at the Snake Hollow Road residence in the
              summer of 1992 during daylight, in the garage;

              [Count Three] by forc ing [ ], the victim, to perfor m fella tio
              on [Defendant] at the home on Snake Hollow Road after
              June 29, 1992, the date of purchase of the Buick
              automobile and at the back of the Buick;

              [Count Four] by the digital penetration of [the victim], which
              occurred in the fall of 1993 and b efore Thanksgiving Day
              in the defendant’s bedroom;

              [Count Five] by cunnilingus on June 3, 1995 of [the victim]
              in her bedroom at the Snake Hollow Road residence;

              [Count Six] in her [the victim’s] bedroom on Sunday, June
              4, 1995;

              [Count Seven] on Wednesday, June 7, 1995 at Kinser
              Park while [Defendant] and the victim, [ ], were w alking in
              the woods;

              [Count Eight] at the Snake Hollow Road residence
              between March, 1990 and June 9, 1995 and while the
              defendant and the victim, [ ], were test-driving the Buick
              (purchased on 6-28-92) and in the garage of the
              defendan t’s employer.


       After reviewing the ve rdict forms, we find that the trial court did not offer

unneces sary comm entary on the facts a s alleged by Defe ndant. Rather, the forms

conta in enough specific information to comply with the requir emen t that the Sta te

elect the particu lar offense s for which conviction s were s ought.            See State v.

Shelton, 851 S.W.2 d 134 (T enn. 19 93); Burlison v. State, 501 S.W.2d 801 (Tenn.

1973). Since the victim did testify to m any sexu al crimes comm itted by De fendan t,

the trial cou rt ensu red un anim ity in the jury’s decisio n by be ing sp ecific in the verdict

forms. See Shelton, 851 S.W .2d at 137 . This issu e is withou t merit.


                               III. Dismissal of Count Four




                                             -11-
       In his third issue, Defendant claims that Count Four should be dismissed

because the victim’s testimony as to when the digital penetration occurred did not

specify a year. De fendan t contend s that without a specific year the jury could not

determine if the digital penetration was “an alleged aggravated rape or a child ra pe.”

W e note that the count Defendant is contesting is Count Five in the presentment and

Coun t Four on the verdict fo rm and judgm ent.



       Defendant fails to cite any authority to s upport his argum ent, an d there fore this

issue should b e waived . See Tenn . R. App . P. 27(a)(7 ); State v. Dickerson, 885

S.W.2d 90, 93 (T enn. C rim. App .), perm. to appeal denied (Tenn. 199 3). However,

even if this iss ue is add ressed , it is without m erit.



       The count in the presentment Defendant contests alleges the following:

              [Defen dant], between ___, 1992, and ___, 1993,
              unlaw fully committed the offense of rape of a child by
              know ingly engaging in unlawful sexual penetration of
              [victim], a child less that thirteen years of age, by sticking
              his finger in side h er vag ina; a c lass A felony in violation of
              T.C.A. 39-13-522, and against the peace and dignity of the
              State of Tennessee.
       Prior to July 1, 1992, the unlawful sexual penetration of a victim less than

thirteen (13) years of age wa s design ated as aggrava ted rape . Tenn. C ode An n. §

39-13-502 (a)(4)(1991). That po rtion of the a ggravate d rape s tatute referring to

victims under thirteen (13 ) years of age was th en “mo ved to § 3 9-13-52 2.”

Sentencing Commission Comments, Tenn. Code Ann. § 39-13 -502. In fairn ess to

Defen dant, panels of this Court have indicated that it was codified “as a separate,

new crime” at Tenn. Code Ann. § 39-13-522. See State v. Banes, 874 S.W.2d 73,

78, n.4 (Te nn. Crim . App. 19 93), perm . to app eal denied (Tenn. 1994). How ever,

the elements of aggravated rape of a child less than 13 years of age ar e identica l to


                                             -12-
the elements of rape of a child. The classification of the offense as an A felony

remained the sam e. See Tenn. Code Ann. §§ 39-13-502(b) and -522(b). The only

significant difference is that each sentence for convictions of an offense occurring

on or after July 1, 1992, must b e served undim inished b y senten cing cred its. See

Tenn. Code A nn. § 39-13-5 23. The un diminished s entencing p rovision of rape of

a child requires a showing that the penetration occurred on or after July 1, 1992,

before one can be convicted of the offense designated as rap e of a child. If there

is insufficient proof that the offense occurred on or after Ju ly 1, 199 2, one could only

be convicted of agg ravated rape. T his situation is akin to one where a sentence for

a spec ified crim e incre ases after a c ertain d ate. U nder s uch c ircums tances, a

person must be sentenced within the parameters of the sentence existing at the time

of the offense, not the tim e of sentencing.



         At trial, the victim’s testimony did not specify when the offense occurred.

Testimony in regards to this count was as follows:

             State:        I’ve asked the co urt officer to pass to you
                           Exhib it #16. Would you look at that, please?
                           Do you recogn ize that?

             Victim:       Yes.

             State:        Wh ere was that jar of Va seline ke pt?

             Victim:       On my m other’s dresse r.

             ...

             State:        Did you ever have occasion to be in
                           [Defendant’s] bedroom?

             Victim:       Yes.

             State:        Did you ever have occasion to . . . . excuse
                           me, let me ask the question this way. On an
                           occa sion th at you w ere in h is bedro om d id it
                           involve Exhibit #16, that jar of Vaseline?

                                           -13-
              Victim:       Yes.

              State:        Do you remember when that occurred?

              Victim:       I know it was in the w inter.

              State:        Do you know whether or not it was before or
                            after Thank sgiving Day?

              Victim:       I believe it was before.

              State:        Do you know what year it was?

              Victim:       I cann ot reca ll.

              State:        W a s it there at the Snake Hollow Road
                            residence?

              Victim:       Yes.

              State:        [D]o you remember whether it was before or
                            after the purchase of the Buick?

              Victim:       I don’t re call.

              State:        W ould you tell the ladies and gentlemen of
                            the jury what happened on the occasion
                            involving the jar of Vaseline?

              Victim:       It was in his bedroom and my mother’s room
                            and [Defendant] had took [sic] the jar of
                            Vaseline and pu t it on his finger and pulled
                            my pants down and he stuck his finger in my
                            vagina and I to ld him that it hurt me. He
                            pulled his finger back out and told me to get
                            up.

              State:        Did you tell your mo ther abo ut that?

              Victim:       No, I did n ot.


       The foregoing testimony demonstrates that the State did not establish the

exact date that th is particular in cident oc curred. The only tim e fram e the vic tim could

testify to was tha t it occurred after they m oved to the Snake Hollow residence which

was earlier established as being sometime in the year 1990. The count in the

presentment dealing with the digital rape states that Defendant stuck his finger

                                               -14-
inside the victim’s vagina “between ___, 1992, and ___, 1993.”                  The Bill of

Particulars states that the single inc ident of digital penetration occurred be fore

Thanksgiving Day of 1993. However, contrary to the State’s argument, this is not

enough to satisfy the State’s burden of proving that the incide nt occ urred after Ju ly

1, 1992, in o rder to establish rape o f a child. These d ocume nts were not admitted

into evidence and it was the State’s burden to clea rly establish through evidence at

trial when the alleged incident occurred.



       Howeve r, to dismiss this count altogether would be an extreme misplacement

of form over substance. The act of “unlawful sexual penetration of a victim ” who “ is

less than thirteen (13) yea rs of age,” did not ce ase being a crime at midnight on

June 30, 199 2; it merely ceased being codified at Tenn. Code Ann. § 39-13-502.

See Tenn. Code Ann. § 39-13-522(a). Again, the elements of aggravated rape and

rape of a child are the same and the State did prove beyond a reasonable doubt

Defe ndan t’s guilt of the unlawful sexual pene tration o f a child less than thirteen yea rs

of age.   However, since the State did not clearly establish when the incident

occurred, we hold that Defenda nt is guilty of ag gravated rape inste ad of rap e of a

child in Coun t Four (C ount Five of the pres entme nt).         The judgment must be

modified acc ordingly.



                                IV. Excluded Testimony



       In this issue, Defendant contends that he was prevented from presenting a

defense when the trial court excluded testimony that the victim had contact with “sex

toys,” that she a ppeare d to eng age in se xual con duct with h er brothe r, that her




                                            -15-
brother had raped a cousin, and that she had knowledge of the male anatomy and

physiology.



       Evidence of a victim ’s sexual behavior other than the sexual act or acts at

issue is governe d by Te nness ee Ru le of Evide nce 41 2. Rule 4 12 doe s apply to

cases involving the rape of a child. See State v. Terrell Dion Cowans, C.C.A. No.

02C01-9610-CC-00359, Henry County (Tenn. Crim. App., Jackson, Nov. 20, 1997),

perm. to appeal denied (Tenn. 1998). The rule limits the admis sibility of evidence

of specific ac ts of sexual conduct of th e victim , as we ll as evid ence of the vic tim’s

sexual reputation.



       At issue is the provision which may permit the admission of sexual behavior

of the victim with pers ons other than Defendant “to prove or explain the source of

semen, injury, disea se, or knowledge of sexual matters.”                Tenn. R. Evid.

412(c)(4)(ii). “Knowledge of sexual matters” is often soug ht to be introdu ced in child

sexual abuse cases.       Where the State’s proof suggests that the child victim’s

knowledge of sexual ma tters resulted solely from the incident with the defendant, the

defendant is permitted to show that the victim acquired the familiarity from sexual

activity with third persons. Advisory Commission Comments, Tenn. R. Evid. 412.



       Howeve r, before evidence regarding a victim’s “knowledge of sexual matters”

is admissible, the trial court must first determine that the probative value of the

evidence outweig hs its unfa ir prejudice to the victim . Tenn. R . Evid. 412 (d)(4). In

holding that the evidence was inadmissible, the court stated the following:

              None of that is admissible except . . . I guess mayb e
              unless I should have said, specific instances of con duct.
              So what you have to first have is a spec ific instance of a

                                           -16-
            victim’s sexual beha vior, is it ad miss ible unless submitted
            in accordance with such and such?

            Consent is not an iss ue. If it were someone other than the
            accused it can on ly be used to rebut or explain scientific or
            medical evidenc e which is not the ca se. To prove or
            explain the source of semen, injury, disease or knowledge
            of sexual matters, which is not the case. Or to prove
            consent, which is not an issue.

             ...

             Somebody playing with . . . I don’t think playing with a
             vibrator would ever be admissible, that I can conceive.
             Seeing someone attempting to have sex would not be
             admissible.

             The only evidence that I ha ve eve r seen that co uld come
             in and I think if you read a ll of 412 it’s clear, is . . . have
             you read the definition of sexual behavior? It means
             sexual activity of the alleged victim other than the sexual
             act that’s th e issue in the case. Sexual activity is defined,
             isn’t it? Let’s loo k at it.

             The definition of sexual behavior is sexual activity of
             som eone other th an the defen dant, a nd to b e adm issible
             it has to be a specific instance of a victim of sexual
             behavior for the purpose of proving consent which is not
             an issue, medical evidence which is not an issue, behavior
             of the acc used w hich is no t an issue . . . .

             The only thing I’ve seen a court let in are where one said,
             ‘Yes, I had consensu al sex with her,’ and the n you’ve got
             to reme mber it sa ys . . . for knowledge of sexual, the fact
             that someone may have attempted to have sex with the
             victim or the victim may have played with a so-called,
             quote, sex toy, does not impute knowledge of copulation.
             I don’t believe any co urt would stretch it that far.

             ...

             I just don’t believe under any stretch of the imagination
             that any cou rt would e ver allow tho se sub mission s to
             come in under Rule 412.


      By com men ts the tria l court m ade in holdin g the e videnc e inad miss ible, it is

apparent that the court below found the incide nts had no probative value. We agree

with the trial court’s conclusion.      A decision regarding Rule 412 will not be

                                          -17-
overturned absent a showing that the determ ination was a n abu se of th e trial co urt’s

discretion. See State v. Sheline, 955 S.W .2d 42, 46 (Tenn . 1997). Defendant has

failed to show how denying the evidence was an abuse of the trial court’s discretion.

This issu e is withou t merit.




                      V. Admissibility of Dr. Reardon’s Testimony



       In this issu e, De fenda nt argu es tha t the trial court erred in allowing D r.

Reardon to testify as to his impression concerning penetration and in allowing the

introduction of Exhibit 30 which was Dr. Reardon’s complete examination of the

victim.



       Defendant fails to cite any au thority in supp ort of this issue a nd it sh ould

therefore be treate d as wa ived. Ten n. R. Ap p. P. 27(a )(7); Dickerson, 885 S.W.2d

at 92-93; see also Killebrew, 760 S.W.2d at 231-32. In add ition, the record revea ls

that Defenda nt did not ma ke a contem poraneous objec tion to the testimon y of Dr.

Reardon or any objection to the admission of Exhibit 30 and this issue should be

waived fo r these re asons as well. Te nn. R. A pp. P. 36 (a).



       Defendant’s motion in limine reque sted, in pertinent part, that the trial court

redact “[a]ny o ral state men t mad e by the child in this cas e to ph ysician s that is [sic]




                                            -18-
not for purposes of diagnosis and trea tment.” It should be noted that the rec ord

contains no Ord er dispos ing of this m otion.



         Howeve r, even addressed on the merits, Defendant’s argument must fail. On

direct examin ation, Dr. R eardon testified that he took a medical history from the

victim, that the history w as im portan t for pur pose s of dia gnos is and treatment, and

that the victim had told him of three specific incidents of penetration. Dr. Reardon

said that his physical examination led him to conclude that partial penetration by a

male penis of th e victim was possible and was consistent with the history that the

victim gav e him. T his issue is without m erit.



                                    VI. Sentencing



         In this issue, Defendant argues that the court erred in finding three

enhancement factors, finding no mitigating factors, and in ordering the sentences on

the four rape co nvictions to be serve d consecu tively.



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

a senten ce, this cou rt has a du ty to condu ct a de novo review of th e sente nce with

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

Code Ann. § 40-3 5-401(d). Th is presump tion is "conditioned up on the affirmative

showing in the record that the trial court considered the sentencing principles and

all relevant fac ts and circ umsta nces." State v. Ashby, 823 S.W.2d 166, 169 (Tenn.

1991).




                                           -19-
      In conducting a de novo review of a sentence, this Court must consider the

evidence adduced at trial and the sentencing hearing, the presentence report, the

principles of sentencing, the arguments of counsel relative to sentencing

alternatives, the natur e of the offe nse, an d the de fendan t’s potential for

rehabilitation. Tenn . Code Ann. § 4 0-35-21 0; State v. Parker, 932 S.W.2d 945, 955-

56 (Tenn . Crim App . 1996).



      If our review reflects that the trial court followed the statutory sentencing

procedure, imposed a lawful sentence after having given due consideration and

proper weight to the factors and principals set out under the sentencing law, and that

the trial court's findings of fact are adequately supported by the record, then we may

not modify th e sente nce eve n if we wo uld have preferred a different re sult. State v.

Fletcher, 805 S.W .2d 785 , 789 (T enn. C rim. App . 1991). Upon review of the record,

we find that the trial court considered the proper senten cing princ iples and stated its

reasons and findings on the record. Therefore, review by this court is de novo with

a presumption of correctness. However, even though trial court considered the

proper sentencing principles, we hold, as specified below, that the court e rrone ously

applied two en hancem ent factors and failed to consider on e mitigating factor.



A. Length of Sentences

      The trial court found that three enhancem ent fac tors we re app licable to all

offenses for which Defendant had been convicted:

             (a) The personal injuries inflicted upon the victim were
             particularly g reat;

             (b) The offense involved a victim and was comm itted to
             gratify the defen dant’s de sire for plea sure or e xcitement;
             and



                                          -20-
              (c) The defend ant abu sed a p osition of p rivate trust.


See Tenn. C ode Ann . § 40-35-114 (6), (7) and (15).



       In applying enhancement factor (6), the trial court stated the following:

              Now, we’ve had no evidence in the case from
              psycho logists or psychiatrists about the consequences of
              the defendant’s criminal acts upon her, although she was
              very young, and the evidence was that the defendant’s
              abuse of her sexually began at age five. But I did observe
              her demeanor while she was testifying and she was very
              distraught throughou t her testimony, sh e cried and sobbed
              almost throughou t her testimony.             C ertainly the
              observation this Court would make, in looking at her as
              compared with other victims of similar age who h ave
              testified in this court in other cases over a period of time,
              is that she obviously suffers greatly from the things that
              have been d one to h er and I thin k that #6 is , in fact, an
              enhancement factor in the case.


       The term “personal injury” as used in enhancement factor (6) is broad enough

to embrace the emotional injuries and psychological scarrin g sus tained by the v ictim

of a sexua l offense. See e.g., State v. Melvin , 913 S.W.2d 195, 203 (Tenn. Crim.

App.), perm. to appeal denied (Tenn. 1995); State v. Smith, 891 S.W.2d 922, 930

(Tenn. Crim. A pp.), perm. to appeal denied (Ten n. 199 4). Ho weve r, befor e this

factor may be used to enhan ce a sen tence w ithin the ap propriate range, th e State

must establish that the emo tional in juries a nd ps ycholo gical sc arring are “pa rticularly

great.” Tenn . Code Ann. § 4 0-35-11 4(6); see State v. Lorenzo Puente Salazar,

C.C.A. No. 02-C-0 1-9105-CR-00098, Shelby County (Tenn. Crim. App., Jackson,

Jan. 15, 1992). In Salazar, this Court held the following:

              Clearly, rape is injurious per se to the body and mind of
              the victim. In this regard, the legislature has seen fit to
              enhance the offe nse to aggra vated rape if a child is
              involved. In consideration of this auto matic en hance ment,
              it is questionable that a trial court is entitled to rely so lely
              upon the ag e of the victim a s a ba sis to find that the

                                             -21-
              mental traum a is ‘particularly gr eat.’ Furthe r, the re cord is
              totally devoid o f any evidence from which the trial court
              could determine that the mental disturbance shown in the
              record was greater than, less than, or equivalent to that
              which is o rdinarily involve d with this se rious offen se.


Id. at 7-8.



       The Tennessee Supreme Court in State v. Kissinger, 922 S.W.2d 482, 487-88

(Tenn. 1996), loo ked for m edical or p sycholo gical proo f to determine if the victim ’s

injuries were “ particu larly great.” Finding none, the court determined that application

of enhancement factor (6) was inappropriate.



       In the instant case, the State did not prese nt any e videnc e as to the ch ild’s

psychological injuries. No psychiatr ists or psychologists testified as to any emotional

scarring the victim h ad su ffered, and n o evide nce w as pre sente d that th e victim

required couns eling for he r emotio nal injuries. But see contra, State v. John Claude

Wells, III, C.C.A. No. 0 1-C-01-95 05-CR-00146 , Davidso n Cou nty (Ten n. Crim. A pp.,

Nashville, June 6 , 1997), perm. to appeal denied (Tenn. 1998 ); State v. Robert J.

Burton, Sr., C.C.A. No. 02C01-9507-CC-00193, Weakley County (Tenn. Crim. A pp.,

Jackson, June 1 0, 1996 ), perm. to appeal denied (Tenn. 1996). The evidence of

physical injury to the victim in this case was a partial tear to her hymen and her

testimony that she bled for two days follow ing pen etration. But see contra, State v.

James Lloyd Julian, II, C.C.A. No. 03C01-9511-CV-00371, Loudon County (Tenn.

Crim. App., K noxville , July 24, 199 7), perm. to appeal denied (Tenn . 1998); State v.

Roy L. Sherrod, C.C.A. No. 02-C-01-9510-CR-00331, Shelby County (Tenn. Crim.

App., Jackson, July 26, 19 96), perm. to appeal denied (Tenn. 199 7). Accordingly,

we find tha t althou gh the victim certain ly suffered injuries, those injuries were not


                                            -22-
“particu larly great” as contemplated by the statute for enhancement purposes.

Therefore, enhancement factor (6) should not have been applied to any of the

convictions.



       Relative to enhancement factor (7), De fenda nt argu es tha t there is nothin g in

the record to show that he com mitted the offens es to gratify his desire for plea sure

or excitem ent. See Tenn. Code Ann. § 40-35-114(7). In applying this factor to the

convictions, the trial court stated the following:

               The character of rape has many faces. It can be one of
               oppression, of male dominance, of punishment, or it can
               be for plea sure a nd exc iteme nt. I think the evid ence in
               this case clearly sho w that it was to gratify th e defe ndan t’s
               desire for plea sure o r excitement, and I think that
               distinguishes this case in an enhancement way, and so I
               believe that is a valid enhancement consideration.


       Initially, we note that a necessary element of aggravated sexual battery as

charged is sexual contact which is defined as the intentional touching of an intima te

part or the clothing over such intimate part "for the purpose o f sexual arousal or

gratification." Tenn. C ode Ann . § 39-13-501(6); see Kissinger, 922 S.W.2d at

489-90 (Ten n. 199 6). Be caus e a fac tor can not be applie d if it is also an essential

element of the o ffense as cha rged in the ind ictme nt, enh ance men t factor (7 ) is

inapplica ble to the fo ur aggra vated se xual batte ry conviction s.


       Howeve r, factor (7) is not an essential element of aggravated rape or rape of

a child and m ay be co nsidere d as an approp riate enh ancem ent factor. See State

v. Adams, 864 S.W.2d 31, 34-35 (Tenn. 1993). In Kissinger, our suprem e court

recogn ized the d ifficulties in esta blishing fac tor (7):

               Enhancement factor (7), un like mos t of the other
               sentencing factors, calls into que stion a defen dant's
               reasons for comm itting a crime. Hum an motivation is a

                                             -23-
              tangled web, always complex a nd multifaceted . To prove
              defen dant's motive s will always be a difficult task. But the
              legislature, in its wisdom, has placed that obligation on the
              state wh en the sta te seeks an enh anced senten ce.

922 S.W .2d at 491 .


       W e are of the opinio n that the S tate me t its burden of proof in this case that

the rape wa s sexua lly motivated to gratify De fendan t’s desire for pleasure or

excitem ent. There were several instances of sexual conduct by Defendant with the

victim occurring on different occasions. Defendant penetrated the victim by inserting

his penis in the victim's vagina, the victim performed fellatio on Defendant, and

Defendant performed cunnilingus on the victim. The victim testified as follows about

one incid ent:

              [Defen dant] pulled down my shorts and panties and he
              told me tha t he had to check and se e if I had been with
              any boys . Then h e stuck h is tongue in my vag ina.

              ...

              [A]fter he got done he told me, he said, ‘N o, you h aven’t
              been with any boys,’ and then he said, ‘[victim ], I’m going
              to do wha t I usually do ,’ and th en he started rubbing my
              vagina and masturbating and then he ejaculated on me
              and the n he wip ed it off with a h andke rchief.

In regards to the incident of penile penetration, the victim testified that she asked the

victim to stop and he asked her, “Do you want me to hurry up and get done,” and she

told him th at she did .



       Although orgasm is insufficient, in and of itself, to establish that Defendant

committed rape to gratify his desire for p leasu re or ex citem ent, wh en tha t fact is

viewed along with other circumstances in the case, we find this factor to be

appropriate. See Kissinger, 922 S.W .2d at 490 -91. De spite Defendant's denial that

he committed the offenses, the evidence supports the application of factor (7) by a

                                           -24-
preponderance of the evidenc e. See State v. Carter, 908 S.W.2d 410, 413 (Tenn.

Crim. App.), perm. to appeal denied (Tenn. 1995) (preponderance of the evidence

standard applies to factual de terminations n ecessary for en hancem ent factor).

Furthermore, the jury con cluded beyond a reaso nable d oubt that the defend ant's

intentional touching was for the purpose of sexual arousal or gratification to convict

the defendant of four counts of aggravated sexual battery. Under these

circum stances, we hold that the record supp orts the applic ation o f factor (7 ) in

senten cing De fendan t for the agg ravated ra pe and rape of a child con victions.



       The court a lso found as an enhancement factor the Defendant abused a

position of private trust. Tenn. Code Ann. § 40-35-114(15). We note that Defendant

does not specifically contest the applic ation o f this fac tor on a ppea l. We believe this

enhancement factor c learly ap plies, a nd ob viously the trial court ga ve it great w eight.

Defendant’s status as stepfather while living with the victim’s mother is a sufficient

basis for senten ce enh ancem ent und er factor (1 5). Adams, 864 S.W.2d at 34. A

more serious violation of private trust is hard to imagine. Accordingly, we find that

this enhancement factor appropriate for all convictions.



       In conclusion, we find that enhancement factor (6) is ina pplicable to all eight

convictions, enha ncem ent fac tor (7) is o nly applicable to the four rape convictions,

and enhancement factor (15) is applicable to all eight convictions.



       With respect to mitigation, Defendant merely mentions that a few mitigating

factors shou ld have been applie d whic h inclu de no prior crim inal rec ord, his

employment record , his limited education , and his financial ass istance to his fam ily.

The pre-sentence report reveals that a search was conducted for prior criminal

                                            -25-
offenses in Greene C ounty and n one were found. We find the absence of a criminal

record to be applicable in mitigation, although little weight should be afforded it. This

Court has also held that where Defendant was convicted of sex offenses involving

minors, favorable consideration based upon his family c ontribu tions a nd wo rk ethic

was not approp riate. See State v. McKnight, 900 S.W.2d 36 (Tenn. Crim. App.

1994), perm. to appeal denied (Tenn. 1995). Further, we find no evidence in the

record as to how his limited education affected his actions against his stepdaughter

in this case , so this facto r will not be a pplied.



       In summary, we believe one mitigating factor, Defendant's lack of a prior

criminal record, should be considered relative to the length of the sentences

imposed. See Tenn. Code Ann. § 40-35-113(13). However, although this factor

shou ld be considered, we do not believe it is entitled to significant weight in the

context o f this case.



       Even though the trial court inappropriately applied one enhancement factor as

to the aggravated sexual battery convictions and one enhancement factor as to a ll

convictions and failed to app ly one mitigating facto r, we find that the proof su pports

a twelve (12 ) year sen tence for each aggravated sexual battery conviction and a

twenty-five (25) year se ntenc e for ea ch ag grava ted rap e and rape o f a child

conviction. Defen dant is not en titled to a reduc tion in s enten ce m erely because we

conclude on appeal that the trial court incorrectly applied sentencing and mitigating

factors. State v. Hayes, 899 S.W.2d 175 S.W.2d 175, 186-87 (Tenn. Crim . App.),

perm. to appeal denied (Tenn . 1995).




                                             -26-
      In Hayes, a pane l of this Cou rt stated the following:

             [E]ven if we determine that fewer factors should apply than
             used by the tr ial cou rt, this does n ot mea n that the le ngth
             of the sente nce is au tomatica lly reduced . That is, if the
             same degree of culpability and negative circumstances
             relate to the remaining applicable factors, the original
             enhan ceme nt may s till be appro priate.


Id. Such is the case here. The defendant was charged with the care and control of

the victim, yet he abuse d that pos ition of trust. W e find the length of the sentences

imposed by the trial court to be appropriate.



B. Consecutive Sentences

      Next, the defendant contends that the trial court erroneously imposed

consecu tive sentences. In imposing consecutive sentences to the aggravated rape

and rape of a child convictions, the court stated the following:

             The defendant qualifies for consecutive sentencing under
             Tennessee Code Anno tated [s ection ] 40-35 -115 w hich
             was in effect when all of these offenses are charged, and
             it says this, that the defend ant can be sen tenced to
             consecu tive sentences for convic tions if th e defe ndan t is
             convicted of two or more , and here it’s eight statuto ry
             offenses involving se xual abu se of a m inor, with
             consideration of the aggravating circumstances arising
             from the relation ship b etwee n the d efend ant an d victim or
             victims since she was five, time span of defe ndan t’s
             undetected sexual activity, the nature and scope of the
             sexual acts pervasive and extent of residu al, physical and
             mental damage to the victim which seems significant. In
             addition to that the child rape statue now would bolster
             that.

             ...

             The right thing for the right reasons seems to me to be
             this, that this de fendan t, for the thing s that he’s done to
             this child over a long period of time, should not be in a
             position to be re lease d from custo dy. Th at’s ha rsh, tha t’s
             hard for m e, but I think it’s th e truth . . . .




                                          -27-
      In this cas e, De fenda nt was convic ted of a total of e ight offe nses involving

sexual abuse of his stepdaughter. Defendant's conduct occurred over a long period

of time and the nature and scope of the defendant's sexual acts were extensive.

Although we did not find there to be “pa rticularly great” injury to th e victim, we

certain ly believe that there was enough physical and emotional damage to justify the

application of Tenn. Code Ann. § 40-35-115(b)(5). However, a finding of Tenn.

Code Ann. § 40-35-115(5) does not end our inquiry into the validity of consecutive

sentencing. Instead, T enn. C ode An n. § 40-3 5-115 re quires fu rther review of

whether consecutive sentences are necessary to protect the public from the

defendant’s possible future criminal conduct and whether the aggregate sentence

is reaso nably related to the severity of the defendant’s present offenses. Sentencing

Commission Comments, Tenn. Code Ann. § 40-3 5-115; Te nn. R. Crim . P. 32(c)(1);

see also State v. Wilkerson, 905 S.W .2d 933 (Te nn. 1995). Fro m our de novo

review of the record, we conclude that the trial court did not err in imposing

consecu tive sentences . The trial court found that the confineme nt was nece ssary

to protect the public and the victim from future criminal conduct of Defendant.

Furthermore, because the progressive egregious nature of Defendant’s eight

convictions occu rred ov er a sig nifican t span of time with his own stepd aughter, the

consecu tive senten ces are reason ably related to the seve rity of the crimes.

Defendant has failed to carry his burden to show that the trial court’s sentence was

improp er. This iss ue is witho ut merit.




                                      Conclusion




                                            -28-
      The judgm ent of C ount F our is modified to reflect a conviction of aggravated

rape rather than rape of a child. In all other aspects, the judgments are affirmed.




                                ____________________________________
                                THOMAS T. W OODALL, Judge



CONCUR:



___________________________________
GARY R. WA DE, Presiding Judge


___________________________________
DAVID H. WELLES , Judge




                                        -29-
