        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                   May 21, 2013 Session

                 STATE OF TENNESSEE v. CLEVEN JOHNSON

                   Appeal from the Criminal Court for Knox County
                     No. 89645     Jon Kerry Blackwood, Judge


                No. E2012-02303-CCA-R3-CD - Filed September 4, 2013


The defendant, Cleven Johnson, appeals his Knox County Criminal Court jury conviction of
aggravated sexual battery, claiming that (1) the evidence was insufficient to support his
conviction; (2) the trial court erred by refusing to grant his motion for mistrial; (3) the trial
court erred by admitting photographs of the crime scene, and of a victim’s injuries and by
admitting evidence of the defendant’s guilty plea to accompanying offenses; and (4) the
sentence was excessive. Discerning no error, we affirm the judgment of the trial court.

            Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which J OSEPH M.
T IPTON, P.J., and C AMILLE R. M CM ULLEN, J., joined.

Leslie M. Jeffress, Knoxville, Tennessee, for the appellant, Cleven Johnson.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; Randall E. Nichols, District Attorney General; and TaKisha M. Fitzgerald, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                          OPINION

                On January 21, 2009, the defendant pleaded guilty to a multitude of felony
offenses arising out of the home invasion of Jennifer and Michael Morton. In Count 19 of
case 89645, the defendant was charged with aggravated sexual battery, but he entered a plea
of guilty to the lesser-included offense of attempted aggravated sexual battery. Five months
later, the defendant filed a petition for post-conviction relief, and the trial court granted the
defendant a new trial with respect to the aforementioned Count 19.

              The trial court conducted a jury trial in February 2012, which ended in a hung
jury, and the trial court granted a mistrial. A second jury trial was conducted in May 2012.

               At trial, S.U.1 testified that, on March 29, 2008, she was a 15-year-old high
school student who joined her cousins, K.M. and S.M., at the Mortons’ residence to babysit
their 10-year-old son, “L.M.” While at the Mortons’ home, the three girls invited their
boyfriends over to watch a movie. At the conclusion of the movie, their boyfriends left the
house, and the girls and L.M. fell asleep. Sometime later, S.U. awoke to the sound of a
“bang” as an intruder hit S.M. in the head with a handgun. The intruders forced the girls and
L.M. into a bathroom. S.U. testified that there were four intruders, although she never saw
the fourth intruder because he stayed downstairs throughout the home invasion. S.U. stated
that the defendant held them at gunpoint and took all of their cellular telephones. The
defendant and the other intruders repeatedly asked the girls to tell them where the “drugs and
money” were located.

              Eventually, the Mortons returned home, and the intruders took the couple into
the bathroom and moved the three girls into an adjacent hallway. S.U. stated that the
intruders ripped out Mr. Morton’s earrings, forced him to strip down to his boxer shorts, and
“they were going to burn him with a curling iron.” S.U. also testified that one of the
intruders “put a gun up” Mrs. Morton’s skirt, although she was unable to identify which of
the intruders was the perpetrator. S.U. testified that she could hear the intruders ransacking
the house. Sometime later, the intruders bound the girls’ hands with shoelaces and instructed
everyone to count to 100. Once they had finished counting, Mrs. Morton called 9-1-1.
Before law enforcement officers arrived, the three girls drove to the hospital so that medical
personnel could treat the wound to S.M.’s head. S.U. did not speak with any law
enforcement officers at the hospital.

               S.U. testified that, on May 23, 2008, she went to the police station to view a
photographic lineup of potential suspects. She selected the defendant’s photograph as being
one of the intruders on March 30. At trial, she again positively identified the defendant as
one of the intruders.

                On cross-examination, S.U. admitted that law enforcement officers did not
question her at the hospital on March 30, nor did she provide a description of the intruders
to officers at that time. When asked to describe the defendant’s appearance on the night of
the home invasion, S.U. stated that he was wearing Nike shoes and a black, large t-shirt or
sweatshirt. With respect to his facial hair, S.U. described the defendant as having “peach
fuzz.”



       1
           We decline to identify by name the minor victims.

                                                    -2-
             On redirect examination, S.U. affirmed that, at trial, the eyes of the defendant
were the same eyes she looked into on the night of the home invasion.

                K.M. testified that she was a 17-year-old high school student on March 29,
2008. She recalled that she was asleep on the Mortons’ sofa when she awoke “to a gun
barrel in [her] mouth” and was told that she “was going to die if [she] didn’t do what [she]
was told.” She stated that the intruders were inquiring “where the dope was.” She described
the intruders as the defendant, one man who was taller than the defendant, and one man who
was shorter than the defendant. Eventually, the intruders moved her into the bathroom and
told her to lie face down, where she remained for the rest of the home invasion. K.M.
testified that she had never seen the defendant before that night but that she had a clear view
of his face on the night of the home invasion. She described the defendant as wearing a
baseball cap. K.M. testified that the defendant was the intruder designated to keep the girls
and L.M. together and move them from room to room. K.M. stated that she was unable to
see what happened to Mrs. Morton.

              K.M. testified that she did not speak with any law enforcement officers at the
hospital. Several weeks later, K.M. saw the defendant’s photograph on television and
recognized him from the home invasion. K.M.’s mother contacted the police department and
arranged for her daughters and S.U. to view a photographic lineup. Once at the police
station, K.M. viewed the lineup separately from her sister, S.M., and S.U. K.M. stated that
she, her sister, and S.U. were not allowed to speak to one another until each girl had
completed the lineup. From the lineup, K.M. selected the photograph of the defendant and
identified him as one of the intruders. At trial, K.M. again positively identified the defendant
as one of the intruders on March 29, stating that “[i]t’s eyes and a face that you’ll never
forget.” K.M. stated that she was also able to identify the defendant based on his voice,
which she heard on the computer.

             On cross-examination, K.M. described the defendant, as she recalled his
appearance at the home invasion, as tall and slim. She stated that he was wearing tennis
shoes and a baseball cap.

               Victim Jennifer Morton testified that on March 29, she and her husband had
hired babysitters for their son, L.M., so they could go out to a club with friends. She and her
husband returned home around 3:00 a.m., and she noticed that a floodlight was on. Shortly
after entering the house, Mrs. Morton and her husband were accosted by the intruders at
gunpoint. Mrs. Morton testified that she did not look at the faces of the intruders because
they instructed her not to look at them and because she was “scared for [her] life.” The
intruders initially moved the Mortons upstairs, where the intruders demanded money. Mrs.
Morton stated that the intruders emptied her purse, taking the cash and credit cards contained

                                              -3-
therein. One of the intruders then forced Mrs. Morton to return downstairs, where he
continued to demand money and valuables. At one point, the intruder instructed her to take
off her clothes. She started to comply, but the intruder “got distracted,” and she stopped.
This intruder then brought Mrs. Morton back upstairs, forced her to lie down on top of her
husband, and tied her hands behind her back. Mrs. Morton described what happened next:

              Mrs. Morton:         And a gun – the guy put a gun up my skirt
                                   and right there, basically at my vagina and
                                   was counting down for anything that they
                                   – you know, I guess they were looking for
                                   drugs and whatever else, but . . .

                                   So they proceeded to – he stopped.
                                   Because one guy was like – he’s like – he
                                   said, dude, chill out, you know.

                                   ....

              Prosecutor:          Let me – let me back you up just real
                                   briefly, just for the elements. Whenever
                                   the guy stuck the gun up underneath your
                                   skirt –

              Mrs. Morton:         Uh-huh.

              Prosecutor:          – did the gun come into contact with your
                                   vagina?

              Mrs. Morton:         Yes. Because, I guess with – I don’t
                                   know. It was weird, I guess, the way the
                                   underwear was sitting at the time, but,
                                   yeah.

              Prosecutor:          And when the guy had the gun underneath
                                   your skirt, what was the person – what was
                                   the per – what did you hear? What were
                                   they saying?

              Mrs. Morton:         Tell me where the money is or we’re going
                                   to kill her.

                                             -4-
              Prosecutor:          And you said that you heard a countdown?

              Mrs. Morton:         Yeah. It was like, ten, nine, eight. And he
                                   got interrupted. He said, chill out, dude.
                                   There’s nothing. There’s nothing. Just –
                                   and that’s just when I heard them just
                                   taking stuff, like TVs, ripping them off the
                                   walls, computers, everything.

                                   ....

              Prosecutor:          How did it make you feel when he had the
                                   gun up underneath your skirt touching
                                   your vagina?

              Mrs. Morton:         I immediately just started praying and –
                                   please, God, you know, so . . . .

After the intruders left, Mrs. Morton contacted the police. She testified that she was unable
to identify any of the intruders.

             On cross-examination, Mrs. Morton clarified that when she was forced to lie
down on top of her husband, her husband was lying face down as well. She stated that the
bathroom light was on and that the bathroom was visible from the attached spare bedroom,
which is where she believed the girls were located.

                S.M. testified that she was 15 years old in March 2008. The Mortons had
contacted her to babysit their son, and S.M. agreed. She invited S.U. and K.M. to join her.
The girls arrived around 8:00 p.m. Late that night, S.U., K.M., and L.M. had fallen asleep.
S.M. heard the family dog barking, and she went to investigate. At that point, the defendant
appeared, put S.M. in a choke hold, and placed a gun to her head. He told her that he would
kill her if she did not tell him “where the dope was.” She insisted that she knew nothing and
explained that she was simply the babysitter. The defendant asked where the homeowners
were, and S.M. responded that they had gone out and would not be home until 1:00 or 2:00
a.m. The defendant dragged her upstairs and told his accomplices to wake the others. The
defendant told his accomplice, known as Blood, to take custody of S.M. Blood dragged S.
M. down a hallway and “pistol whipped” her above the eyebrow. Blood then passed S. M.
to a third man, who attempted to unbutton her pants “as though he was going to sexually
assault” her, although he did nothing else. The man pushed S.M. into the bathroom and
forced her to sit in the bathtub.

                                             -5-
               Once the Mortons returned home, the defendant and his accomplices moved
the girls and L.M. into a hallway. The intruders forced L.M. to lie on top of S.U. and asked
the boy, “[H]ave you ever had p***y before?” S.M. witnessed the defendant put a gun “up
[Mrs. Morton’s] vagina.” S.M. testified that she “was right there in front of [Mrs. Morton]
watching this the whole time – and [the defendant] said, if you do not tell me where the dope
and the money is, I will kill you.” At that point, Mrs. Morton gave the intruders money that
was located underneath a bed, and the intruders left the house, after restraining all of the
victims and instructing them to count to 100. S.M. positively identified the defendant as the
intruder who sexually assaulted Mrs. Morton, stating “you never forget those eyes.”

               Sometime later, S.M. saw a photograph of the defendant on the computer. She
informed her mother, who contacted the police, and S.M. went to the police station to
participate in a photographic lineup. From the lineup, she was able to positively identify the
defendant as the intruder who committed the sexual assault upon Mrs. Morton. S.M. also
testified that she heard the defendant’s voice on the television and that she was able to
identify the voice as belonging to the defendant.

             On cross-examination, S.M. admitted that she spoke with a police officer at the
hospital on the morning of March 30, and she described the defendant as being
approximately six feet tall and weighing about 180 pounds. She also stated that he had a
shaved head, a full beard, and a mustache. She stated that he was wearing a red jacket but
was not wearing a baseball cap.

               Janice Norman with the Knox County criminal court clerk’s office testified that
the defendant, on January 21, 2009, pleaded guilty to the following charges: aggravated
burglary of the Mortons’ residence; weapons possession; facilitation of especially aggravated
kidnapping of S.M.; facilitation of especially aggravated kidnapping of K.M.; facilitation of
especially aggravated kidnapping of Jennifer Morton; facilitation of especially aggravated
kidnapping of Michael Morton; facilitation of especially aggravated kidnapping of L. M.;
aggravated robbery of Michael Morton; aggravated assault of S.M. while in possession of
a deadly weapon; and aggravated assault of Michael Morton while in possession of a deadly
weapon.

              With this evidence, the State rested its case. Following a Momon colloquy, see
Momon v. State, 18 S.W.3d 152, 161-62 (Tenn. 1999), the defendant elected not to testify but
did choose to offer proof.

               Michael Morton testified on behalf of the defense and stated that he operated
a night club in Knoxville. On the evening of March 29, he went to work at the club. His
wife, Jennifer, joined him at the club, and they came home together at approximately 3:30

                                             -6-
a.m. on March 30. When the couple reached their front door, the intruders confronted them
at gunpoint and forced them inside. Mr. Morton stated that the intruders forced him onto his
stomach, removed his jewelry, and tied his hands behind his back. He testified that it was
too dark for him to identify any of the intruders, and he testified that he could not say
whether the defendant was one of the men inside his home that night.

               Special Agent Kimberly Bryant, a forensic scientist with the Tennessee Bureau
of Investigation, testified that she processed several items from the crime scene: a glove, a
backpack, a baseball cap, and a toboggan. She tested each of the items to determine whether
any contained the deoxyribonucleic acid (“DNA”) of the defendant. Special Agent Bryant
was able to exclude the defendant as the wearer of the toboggan, but the DNA obtained from
the other items could not, for various reasons, be linked to the defendant or anyone else.

                Ashley Thompson, the mother of one of the defendant’s children, testified that
she and the defendant were romantically involved for five years. Their son was born in
February 2008, and according to Ms. Thompson, the defendant went to Alabama prior to
March 23, 2008, and he did not return to Knoxville until mid-April. Ms. Thompson testified
that the purpose of the defendant’s trip to Alabama was to assist his sister in moving. She
stated that, if the defendant had returned to Knoxville prior to mid-April, he would have
visited their son. Ms. Thompson also testified that the defendant never wore red and that “he
wasn’t a hat person.” She estimated the defendant’s weight to be below 130.

             On cross-examination, Ms. Thompson acknowledged that she received a letter
from the defendant in June 2008 while he was incarcerated. The letter referenced Brandy
Gibby, the mother of one of the defendant’s other children. The defendant wrote, in pertinent
part:

              what night is Brandy talking about tell her to be exact on what
              date I need it to be accurate on March 30 - 08 she picked me up
              from our house and dropped me off back off at the house.

Ms. Thompson also acknowledged that another letter, this one written to Ms. Gibby, was
authored by the defendant and stated:

              But right now I need a friend thank u 4 being that I do want you
              back. I was with you on March the 30 all night . . . tell me that
              I was with you.

             Latashia Johnson, the defendant’s sister, testified that sometime after March
8, 2008, the defendant came to Huntsville, Alabama to assist her in moving to a new

                                             -7-
residence. Although she could not say with any certainty that the defendant was in Alabama
with her on March 30, she stated that “he was in Huntsville in March when I moved and it
was towards the end, but I don’t know [the] exact date.” She also could not say when he
returned to Tennessee. Ms. Thompson stated that the defendant has “always been skinny”
and that she did not believe he weighed 180 pounds during March 2008. She also testified
that she could not recall “ever seeing [the defendant] in red, period.”

             Based on this evidence, the jury convicted the defendant as charged of
aggravated sexual battery. Following a sentencing hearing, the trial court imposed an 11-year
sentence and ordered that it be served consecutively to the defendant’s other convictions in
case 89645.

                Following the denial of his timely but unsuccessful motion for new trial, the
defendant filed a timely notice of appeal. In this appeal, the defendant contends that the
evidence adduced at trial was insufficient to support his conviction, that the trial court erred
by denying his motion for mistrial, and that the trial court erred by admitting certain evidence
at trial. In addition, the defendant challenges both the length and alignment of his sentence.
We consider each claim in turn.

                                        I. Sufficiency

               The defendant levels two attacks on the sufficiency of the convicting evidence,
claiming first that the trial court erred by denying his motions for judgment of acquittal and
second that the totality of the evidence adduced at trial did not support his conviction of
aggravated sexual battery.

               The defendant claims that the trial court erred by denying his motion for
judgment of acquittal at the close of the State’s proof because the State’s witnesses failed to
properly identify him as one of the perpetrators, because he had an alibi, and because the
State failed to prove that the sexual contact was for the purpose of sexual gratification. The
defendant contends that he made two motions for judgment of acquittal, one at the close of
the State’s proof and another at the close of all proof. The record, however, does not reflect
that the defendant, at any point during the trial, moved for a judgment of acquittal.
Accordingly, we will address this claim no further and will now review the sufficiency of the
convicting evidence.

              We review the defendant’s claim of insufficient evidence mindful that our
standard of review is whether, after considering the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 324

                                              -8-
(1979); State v. Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003). This standard
applies to findings of guilt based upon direct evidence, circumstantial evidence, or a
combination of direct and circumstantial evidence. State v. Dorantes, 331 S.W.3d 370, 379
(Tenn. 2011).

                When examining the sufficiency of the evidence, this court should neither re-
weigh the evidence nor substitute its inferences for those drawn by the trier of fact. Id.
Questions concerning the credibility of the witnesses, the weight and value of the evidence,
as well as all factual issues raised by the evidence are resolved by the trier of fact. State v.
Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Significantly, this court must afford the State
the strongest legitimate view of the evidence contained in the record as well as all reasonable
and legitimate inferences which may be drawn from the evidence. Id.

                 As charged in this case, aggravated sexual battery is “unlawful sexual contact
with a victim by the defendant or the defendant by a victim accompanied by . . . [f]orce or
coercion . . . to accomplish the act and the defendant is armed with a weapon or any article
used or fashioned in a manner to lead the victim reasonably to believe it to be a weapon.”
T.C.A. § 39-13-504(a)(1) (2006). “Sexual contact” is “the intentional touching of the
victim’s . . . intimate parts, or the intentional touching of the clothing covering the immediate
area of the victim’s . . . intimate parts, if that intentional touching can be reasonably
construed as being for the purpose of sexual arousal or gratification.” Id. § 39-13-501(6).
Additionally, “intimate parts” are defined as “the primary genital area, groin, inner thigh,
buttock or breast of a human being.” Id. § 39-13-501(2).

               Here, the proof adduced at trial established that the defendant forced Mrs.
Morton to lie down, and he placed a firearm between her legs. Mrs. Morton testified that the
firearm came in contact with her vagina, and S.M. testified that she witnessed the defendant
commit this reprehensible act. The defendant argues that the firearm’s contact with Mrs.
Morton’s vagina cannot “be reasonably construed as being for the purpose of sexual arousal
or gratification.” We disagree.

               First, the defendant contends that the prosecutor did not attempt to prove sexual
gratification because she stated, in her opening statement, that the State was “not advancing
towards you that [the intruders’] purpose that night was to enter the house to sexually assault
somebody,” but that instead “the whole purpose of that crime that night was to get the money
and the weed.” It is well-settled that opening statements are not evidence. See State v. Van
Tran, 864 S.W.2d 465, 475 (Tenn. 1993). Furthermore, the proof at trial sufficiently
demonstrated that the sexual contact perpetrated by the defendant could be “reasonably
construed as being for the purpose of sexual arousal or gratification.” T.C.A. § 39-13-
501(6). Mrs. Morton testified that one of the intruders walked her downstairs at gunpoint

                                               -9-
and ordered her to disrobe, although he became distracted and failed to enforce this order.
Mrs. Morton stated that this was the same intruder who forced the firearm under her skirt,
causing it to come in contact with her vagina a short time later, and Ms. Maples identified
the perpetrator as the defendant. The fact that he had previously ordered Mrs. Morton to
undress is indicative of his sexual interest.

               Moreover, State v. Meeks, 876 S.W.2d 121 (Tenn. Crim. App. 1993), is
instructive on this issue. In Meeks, the defendant, who was holding the victim at gunpoint,
grabbed the victim’s breast and threatened to “do stuff” to her if the victim’s husband failed
to cooperate. Id. at 130. The defendant also told the victim that he planned to “have a little
fun with [her]” and, while forcing the victim down a hallway, he stated, “okay, pretty thing,
you’re going with me.” Id. at 130-31. On appeal, the defendant argued that his conduct was
intended to force the victim’s husband to cooperate and that it was not for the purpose of
sexual gratification. Id. at 131. This court disagreed, holding that the evidence was
sufficient to support the conviction of aggravated sexual battery:

              We recognize that jurors may use their common knowledge and
              experience in making reasonable inferences from evidence. . . .
              Since the defendant already had [the victim] at gunpoint, it was
              unnecessary for him to grab her breast in order to elicit [her
              husband’s] cooperation. This is particularly true in light of the
              fact that [the husband] was face down on the floor at the time of
              the grabbing and could not have seen the incident. Since the
              offensive contact was not “essentially incidental” to the robbery,
              the jury could have drawn on common knowledge to reasonably
              infer that the defendant had grabbed [the victim’s] breast for the
              alternate purpose of sexual gratification.

Id.

               The facts of the instant case are strikingly similar. The sexual contact occurred
when the defendant already had Mrs. Morton at gunpoint, and Mr. Morton was face down
at the time of the assault and was unable to see what was transpiring. The defendant could
have placed the gun to Mrs. Morton’s head just as easily, but instead, he chose to force it
between her legs, coming in contact with her vagina. As in Meeks, the jury could have used
their common knowledge and experience to make the reasonable inference that the
defendant’s conduct was intended for the purpose of sexual gratification.

               The defendant also argues that the State failed to prove his identity as one of
the intruders and that he provided an alibi for the night of the crime. We disagree with both

                                              -10-
of these contentions. S.U., K.M., and S.M. all positively identified the defendant, in separate
photographic lineups, as one of the intruders, and, most significantly, S.M. positively
identified the defendant as the perpetrator of the aggravated sexual battery on Mrs. Morton.
S.U. identified the defendant based on his eyes. K.M. testified that, with respect to the
defendant, “it’s eyes and a face that you’ll never forget.” S.M. testified that “you never
forget those eyes.” Both K.M. and S.M. also testified that they recognized the defendant’s
voice when they heard it on the computer and on television. Although each girl’s physical
description of the defendant varied slightly, all three were confident in their recognition of
the defendant’s eyes. Regarding the defendant’s alibi that he was in Alabama at the time the
home invasion occurred, the jury heard the testimony of Ms. Thompson and Ms. Johnson and
clearly rejected it, as was their prerogative.

               Affording the State the strongest legitimate view of the evidence and deferring
to the credibility determinations made by the jury, we conclude that the evidence supports
the defendant’s conviction of aggravated sexual battery.

                                    II. Denial of Mistrial

             The defendant contends that the trial court erred by denying his motion for a
mistrial. We disagree.

              During the defendant’s cross examination of S.U., the following exchange
occurred:

              Defense Counsel:      Now, you say that you had never seen [the
                                    defendant] here before, except at the
                                    house. Have you not seen him – not seen
                                    anything of him in two months – or almost
                                    two months; is that right?

              S.U.:                 Before or after the robbery?

              Defense Counsel:      After the robbery.

              S.U.:                 On TV.

              Defense Counsel:      You had seen him on TV? I thought you
                                    testified you had not. Which is it, ma’am?

              S.U.:                 How ever long after it was that he shot that

                                             -11-
                                      cop or – this was –

               Trial Court:           Take the jury out just a second.

Once the jury had left the courtroom, defense counsel moved for a mistrial. After hearing
brief argument from both sides, the trial court thoroughly questioned the defendant to ensure
he understood that if a mistrial was granted, the case would merely be retried. The defendant
confirmed his understanding. The trial court then denied the defendant’s motion and brought
the jury back into the courtroom, where the trial court instructed the jury as follows:

                      I mentioned to you early this morning that you take a
               Constitutional oath to judge this case solely and alone on the law
               and the evidence. All of you agreed that you would – you would
               follow that rule.

                       Sometimes during the course of a trial, the Court has to
               tell you to disregard statements that are made by witnesses or by
               counsel or by – disregard various evidence. And you are
               instructed you must do so.

                       And I am going to tell you that the last answer that this
               witness gave was unresponsive to the question that was asked.
               It was unresponsive to the question that was asked. Had nothing
               to do with the question that [defense counsel] asked. You are to
               disregard her answer, disregard her answer, it has no place, no
               place in this trial. Can all of you follow that instruction?

Defense counsel then continued his cross examination of S.U.

                The decision to grant or deny a mistrial is entrusted to the sound discretion of
the trial court, and this court will disturb the trial court’s ruling in this regard only when there
has been an abuse of the trial court’s discretion. See State v. Nash, 294 S.W.3d 541, 546
(Tenn. 2009). “Normally, a mistrial should be declared only if there is a manifest necessity
for such action.” State v. Saylor, 117 S.W.3d 239, 250 (Tenn. 2003) (citing State v.
Millbrooks, 819 S.W.2d 441, 443 (Tenn. Crim. App. 1991)). “In other words, a mistrial is
an appropriate remedy when a trial cannot continue, or a miscarriage of justice would result
if it did.” Saylor, 117 S.W.3d at 250 (quoting State v. Land, 34 S.W.3d 516, 527 (Tenn.
Crim. App. 2000)). “The purpose for declaring a mistrial is to correct damage done to the
judicial process when some event has occurred which precludes an impartial verdict.” State
v. Williams, 929 S.W.2d 385, 388 (Tenn. Crim. App. 1996). The burden of establishing the

                                               -12-
necessity for mistrial lies with the party seeking it. Id.

              Although Tennessee courts do not apply any exacting standard for determining
when a mistrial is necessary after a witness has injected improper testimony, we have often
considered (1) whether the improper testimony resulted from questioning by the State, rather
than having been a gratuitous declaration, (2) the relative strength or weakness of the State’s
proof, and (3) whether the trial court promptly gave a curative instruction. See State v.
William Dotson, No. 03C01-9803-CC-00105, slip op. at 9 (Tenn. Crim. App., Knoxville,
June 4, 1999).

                The defendant has failed to establish that the trial court abused its discretion
by refusing to grant a mistrial. S.U. did not make her improper statement during direct
examination by the State. Rather, the statement was made in response to questioning by
defense counsel. As soon as the statement was made, the trial court excused the jury,
apparently anticipating the defendant’s objection. After denying the defendant’s motion for
a mistrial, the trial court issued a thorough curative instruction to the jury. The case against
the defendant was strong, as previously discussed in our sufficiency analysis. Accordingly,
the trial court’s decision to deny the motion for a mistrial did not result in a miscarriage of
justice. See Saylor, 117 S.W.3d at 250.

                                 III. Admission of Evidence

              The defendant next contends that the trial court erred by admitting photographs
of the crime scene and of S.M.’s head injury, asserting that the photographs were irrelevant
to the charged offense and were unfairly prejudicial. The defendant also argues that the trial
court erred by allowing the State to introduce evidence of the defendant’s guilty pleas to the
other charged offenses in case 89645.

                With respect to the photographs, the State attempted to admit numerous
photographs depicting the damage to the Mortons’ home due to the home invasion, as well
as a single photograph of S.M. taken at the hospital depicting the head wound she sustained
when one of the intruders struck her with a handgun. The defense objected, arguing that the
photographs were irrelevant and unfairly prejudicial. In overruling the defendant’s objection,
the trial court stated as follows:

              The photographs don’t show the location of the house, they
              show – that corroborates certain things that [S.M.] has said,
              plus, what other witnesses have said regarding (inaudible) and
              the injuries that she received. And although, they may not be
              pertinent to the (inaudible) sexual assault, but they do go to the

                                              -13-
               credibility of these witnesses, so I’m going to allow.

               The admissibility of photographs is governed by Tennessee Rules of Evidence
401 and 403. See State v. Banks, 564 S.W.2d 947, 951 (Tenn. 1978). Under these rules, the
trial court must determine, first, whether the photograph is relevant. Tenn. R. Evid. 401;
Banks, 564 S.W.2d at 949. Next, the trial court must determine whether the probative value
of the photograph is substantially outweighed by the danger of unfair prejudice. Tenn. R.
Evid. 403; Banks, 564 S.W.2d at 950-51. The term “unfair prejudice” has been defined as
“[a]n undue tendency to suggest decision on an improper basis, commonly, though not
necessarily, an emotional one.” Banks, 564 S.W.2d at 951. Photographs offered by the State
must be relevant to prove some part of its case and must not be admitted solely to inflame the
jury and prejudice it against the defendant. Id. Whether to admit the photographs rests
within the sound discretion of the trial court and will not be reversed absent a clear showing
of an abuse of that discretion. Banks, 564 S.W.2d at 949; see also State v. Dickerson, 885
S.W.2d 90, 92 (Tenn. Crim. App. 1993); State v. Allen, 692 S.W.2d 651, 654 (Tenn. Crim.
App. 1985).

              The trial court determined that the photographs were relevant to corroborate
the testimony of the witnesses. The photographs were not gruesome or inflammatory, and
their probative value to corroborate witness testimony is not outweighed by the danger of
unfair prejudice. Accordingly, we conclude that the trial court did not abuse its discretion
by admitting the photographs.

               Regarding the admission of the defendant’s guilty pleas, the defendant has
waived this issue by, first, failing to support his argument with citation to relevant authorities.
See Tenn. R. Ct. Crim. App. 10(b) (“Issues which are not supported by argument, citation to
authorities, or appropriate references to the record will be treated as waived in this court.”).
Second, the defendant has waived consideration of this issue because, although he did lodge
a contemporaneous objection at trial, he failed to state any grounds for his objection. We
gather that his objection referred to the motion in limine filed before trial, and although the
record indicates that the motion in limine was denied, no transcript of the hearing on the
motion was included in the record. The appellant bears the burden of preparing an adequate
record on appeal, see State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993), which includes
the duty to “have prepared a transcript of such part of the evidence or proceedings as is
necessary to convey a fair, accurate and complete account of what transpired with respect to
those issues that are the bases of appeal.” Tenn. R. App. P. 24(b). If the appellant fails to
file an adequate record, this court must presume the trial court’s ruling was correct. See State
v. Richardson, 875 S.W.2d 671, 674 (Tenn. Crim. App. 1993). In the absence of the motion
in limine hearing transcript, we are without the facts upon which the trial court relied to make
its ruling. Given this deficiency in the record, review of the trial court’s decision to admit

                                               -14-
the defendant’s guilty pleas is impossible, and we must presume the trial court’s ruling was
correct.

                                         IV. Sentencing

              Finally, the defendant challenges the sentence imposed by the trial court,
arguing that the trial court’s application of an enhancement factor resulted in an excessive
sentence and that the trial court should not have ordered consecutive service of the sentence.
The State argues that the record supports the sentencing decision in this case.

                                     A. Length of Sentence

              The trial court imposed a sentence of 11 years, finding that the defendant “has
a previous history of criminal convictions and criminal behavior in addition to those
necessary to establish appropriate range.” See T.C.A. § 40-35-114(1). The court found no
mitigating factors and relied on the single enhancement factor of prior criminal history in
sentencing the defendant. On appeal, the defendant argues that the trial court’s consideration
of this enhancement factor was error because the criminal history relied upon by the trial
court included only the crimes to which the defendant pleaded guilty in case 89645 and, as
such, those convictions could not be considered as “previous history.”

               “[A]lthough the statutory language continues to describe appellate review as
de novo with a presumption of correctness,” the 2005 revisions to the Sentencing Act
“effectively abrogated the de novo standard of appellate review.” State v. Bise, 380 S.W.3d
682, 707 (Tenn. 2012). Observing that a change in our standard of review was necessary to
comport with the holdings of the United States Supreme Court, our supreme court “adopt[ed]
an abuse of discretion standard of review, granting a presumption of reasonableness to
within-range sentencing decisions that reflect a proper application of the purposes and
principles of our Sentencing Act.” Id.

               Despite the new standard of review, trial courts must still consider the
principles of sentencing enumerated in Code section 40-35-210(b), see Bise, 380 S.W.3d at
698 n.33 (citing T.C.A. § 40-35-210(b)), 706 n.41, and must, as required by statute, consider
“[t]he potential or lack of potential for the rehabilitation or treatment of the defendant . . . in
determining the sentence alternative or length of a term to be imposed.” Id. § 40-35-103(5).
The court cautioned that, despite the wide discretion afforded the trial court under the revised
Sentencing Act, trial courts are “still required under the 2005 amendments to ‘place on the
record, either orally or in writing, what enhancement or mitigating factors were considered,
if any, as well as the reasons for the sentence, in order to ensure fair and consistent
sentencing.’” Bise at 706 n.41 (citing T.C.A. § 40-35-210(e)).

                                               -15-
               In the instant case, although the trial court did not recite verbatim the principles
of sentencing, the record as a whole reflects that the trial court considered all relevant
sentencing principles, including the evidence presented at both trial and the sentencing
hearing, the presentence report, the nature of the criminal conduct, and evidence of
enhancement factors. As a Class B felony, the aggravated sexual battery conviction is
sanctioned by a sentencing range of a minimum of eight years and a maximum of 12 years.
See T.C.A. § 40-35-112(a)(2). The trial court stated that no mitigating factors were
applicable and relied on the single enhancement factor of previous criminal history in
sentencing the defendant to 11 years. The defendant’s claim that the trial court only relied
on the convictions arising from case 89645 in finding evidence of a previous criminal history
is inaccurate. In addition to providing the trial court with certified copies of the defendant’s
prior felony convictions in case 89645, the State also provided certified copies of more than
one dozen other convictions, including several felonies, arising out of multiple cases.
Without question, this evidence constituted previous criminal history for the purpose of
enhancing the defendant’s sentence. As such, we conclude that the record supports the
length of sentence imposed in this case.

                                  B. Consecutive Sentencing

               In ordering consecutive sentencing, the trial court made the following findings:

               The Court also finds that based upon the Presentence Report in
               this case, that the defendant’s history – criminal history is
               extensive. The Court has been convinced after hearing two or
               three hearings in this case, plus the proof in this case, that this
               defendant is a dangerous offender, who incarceration is
               necessary to protect the public interest and whose conduct
               serves little regard for public safety and health and risk of life –
               and for the safety of others. So these sentences will be run
               consecutive to the other counts in this Indictment.

              When a defendant is convicted of multiple crimes, the trial court may order the
sentence to be served consecutively if it finds by a preponderance of the evidence that a
defendant falls into one of seven categories listed in Tennessee Code Annotated section 40-
35-115. They are:

               (1) The defendant is a professional criminal who has knowingly
               devoted the defendant’s life to criminal acts as major source of
               livelihood;

                                               -16-
              (2) The defendant is an offender whose record of criminal
              activity is extensive;

              (3) The defendant is a dangerous mentally abnormal person so
              declared by a competent psychiatrist who concludes as a result
              of an investigation prior to sentencing that the defendant’s
              criminal conduct has been characterized by a pattern of
              repetitive or compulsive behavior with heedless indifference to
              consequences;

              (4) The defendant is a dangerous offender whose behavior
              indicates little or no regard for human life, and no hesitation
              about committing a crime in which the risk to human life is
              high;

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

              (6) The defendant is sentenced for an offense committed while
              on probation; or

              (7) The defendant is sentenced for criminal contempt.

T.C.A. § 40-35-115(b). The existence of a single category is sufficient to warrant the
imposition of consecutive sentences. See State v. Adams, 973 S.W.2d 224, 231 (Tenn. Crim.
App. 1997). In State v. Wilkerson, 905 S.W.2d 933 (Tenn. 1995), the supreme court imposed
two additional requirements for consecutive sentencing when the “dangerous offender”
category is used: the court must find that consecutive sentences are reasonably related to the
severity of the offenses committed and are necessary to protect the public from further
criminal conduct. Id. at 937-39; see State v. Imfeld, 70 S.W.3d 698,707-08 (Tenn. 2002).

               In the instant case, the trial court based its decision to order consecutive
sentencing on findings that the defendant had an extensive history of criminal activity and
that the defendant was a dangerous offender. See T.C.A. § 40-35-115(b)(2), (4). Although
the trial court failed to make the requisite Wilkerson findings in relying on the dangerous

                                             -17-
offender category, the trial court’s additional finding of an extensive criminal history, which,
as previously discussed, is amply supported by the record, is “sufficient to warrant the
imposition of consecutive sentences.” Adams, 973 S.W.2d at 231. Accordingly, we find no
error in the trial court’s decision to impose consecutive sentencing.

                                        V. Conclusion

                The evidence is sufficient to support the defendant’s conviction. The trial court
did not err by denying the defendant’s motion for mistrial or by admitting photographs of the
crime scene and the injury to S.M. Based on the record provided to us, we find no error in
the trial court’s decision to admit into evidence the defendant’s prior guilty pleas. The trial
court did not err in sentencing the defendant. Accordingly, we affirm the judgment of the
trial court.


                                                     _________________________________
                                                     JAMES CURWOOD WITT, JR., JUDGE




                                              -18-
