Opinion
No. M2004-02092-CCA-R3-CD.
January 25, 2006 Session.
Filed July 7, 2006.
Direct Appeal from the Circuit Court for Rutherford County; No. F-54333; Don Ash, Judge.
Judgment of the Circuit Court Affirmed as Modified.
Guy R. Dotson, Sr., and Guy R. Dotson, Jr., Murfreesboro, Tennessee, for the appellant, Steven Craig Fults.
Paul G. Summers, Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; William C. Whitesell, Jr., District Attorney General; and Laural Nutt, Assistant District Attorney General, for the appellee, the State of Tennessee.
Thomas T. Woodall, J., delivered the opinion of the court, in which Jerry L. Smith and Robert W. Wedemeyer, JJ., joined.
OPINION
Following a jury trial, Defendant, Steven Craig Fults, was convicted of five counts of rape, a Class B felony, twelve counts of sexual battery by an authority figure, a Class C felony, and seven counts of statutory rape, a Class E felony. At the conclusion of a sentencing hearing, the trial court sentenced Defendant to nine years for each rape conviction, three years for each sexual battery by an authority figure conviction, and one year for each statutory rape conviction. The trial court ordered Defendant to serve (1) all of his sentences for the rape convictions consecutively to each other; (2) all of his sentences for his sexual battery by an authority figure convictions consecutively to each other but concurrently to his sentences for rape; and (3) all of his sentences for his statutory rape convictions consecutively to each other, but concurrently to his sentences for rape, for an effective sentence of forty-five years. In his appeal, Defendant argues (1) that the trial court erred in allowing the State to amend the indictment prior to trial; (2) that the evidence was insufficient to support his convictions; and (3) that the trial count erred in imposing consecutive sentencing. Defendant does not challenge the length of his sentences or the trial court's application of enhancement factors. After a thorough review of the record, we conclude that the evidence is sufficient to support Defendant's convictions of rape (counts one through five) and statutory rape (counts thirty-one through thirty-seven). We further conclude, however, that Defendant's separate convictions for sexual battery by an authority figure in counts twenty-seven through twenty nine, and counts thirty-one through thirty-seven violate double jeopardy principles. We accordingly merge Defendant's convictions of sexual battery by an authority figure in counts twenty-seven through twenty-nine into his convictions of rape in counts two through four, and his convictions of statutory rape in counts eleven through seventeen into his sexual battery by an authority figure convictions in counts thirty-one through thirty-seven. We otherwise affirm the judgments of the trial court, including the imposition of consecutive sentencing. Thus, the total sentence remains at the effective sentence of forty-five years imposed by the trial court.
I. Background
The victim in this case, a minor, will be referred to by his initials. M.D. testified that he was born in 1986 and was seventeen years old at the time of the trial. He attended Barfield Elementary School in Rutherford County, where Defendant taught seventh grade social studies. M.D. said his home room was across from Defendant's classroom, and he saw Defendant every day around the school. Defendant let the students, including M.D., play with his collection of beanie babies and use the computer in his classroom.
M.D. said that he graduated from Barfield Elementary School in May 2000, and entered Riverdale High School in Rutherford County that fall. M.D. said that after he started high school, Defendant contacted him "out of the blue." Defendant asked M.D. if he wanted to work for him as an assistant for the Barfield Elementary School's soccer team, which Defendant coached, and to help Defendant in his classroom. Defendant asked M.D.'s mother, Linda Devine, if her son could work for him, and Ms. Devine agreed. M.D. began working for Defendant two or three times a week, including Saturday when the soccer games were played. Defendant often picked M.D. up at his house when M.D. was scheduled to work for Defendant at the school or at a soccer game. M.D. said Defendant paid him "a lot," sometimes as much as $50.00 to $70.00 for an afternoon of work. M.D. said that he and Defendant spent part of his working time talking about what was going on in M.D.'s life, including M.D.'s feelings about his father and his concerns about fitting into high school. These conversations took place in Defendant's classroom after school was dismissed for the day. M.D. worked for Defendant about one year during which time no inappropriate conduct occurred.
One afternoon after they had attended a soccer game during M.D.'s sophomore year in the fall of 2001, Defendant told M.D. that he needed to drop some equipment off in the classroom. M.D. carried a black bag into the school, and some items in the bag clattered when he set the bag on the floor. M.D. testified that it sounded like video tapes. Defendant asked M.D. to straighten up the classroom. While M.D.'s back was turned, Defendant put a "dirty movie" in the VCR which depicted a man and woman engaging in sexual acts. Defendant asked M.D. what he thought about the movie, and M.D. said that he "started getting really freaked out." Defendant started rubbing M.D.'s back. Defendant touched M.D.'s penis over his clothes and then unzipped his pants and performed fellatio on M.D.M.D. said that he did not do anything to stop Defendant, stating "I didn't know what to do. I just stood there because I didn't know what to think and I was scared." M.D. said that Defendant started moaning "like he really liked it and started calling me, like, going oh baby, and things like that."
M.D. testified:
[Defendant] just told me not to say anything and what it would do to me and people would think about me if they found out that I was doing these kind of things. And how they'd call me gay and [Defendant told] me all the people that he knew and would always tell me like stories about how he could get people in trouble. . . . [Defendant] took me home, I didn't talk to my mom, I went in the bathroom, and I threw up and my mom asked me what was wrong, and I just said it [was] something I ate. And I just stood in the shower because I felt dirty. Because that was the first time anything ever happened like that at all. I just stood in the shower and that was it. And I just went to bed because I just felt ashamed and embarrassed.
M.D. said that he trusted Defendant and looked up to him. Defendant told him "all the time" that he would take care of M.D. and that M.D. should look to him as his father because Defendant had never had a son.
On a second occasion in Defendant's classroom, Defendant played a video tape of two men engaging in sexual activities. M.D. turned the recorder off because it "grossed him out." Defendant told M.D., "you know, it's not gay, . . . you need it just when you need it." M.D. did not remember any sexual contact on this occasion.
M.D. said one sexual encounter occurred near Halloween. M.D. said that he was dating a girl from Riverdale High School, and he wanted to buy her a gift for her birthday on November 4, 2001. Defendant told M.D. that he could earn some money by cleaning Defendant's classroom. Defendant stopped M.D. while he was working and performed fellatio on him. Defendant again told M.D. not to tell anyone. Defendant warned M.D. that they "had already done it so who could [M.D.] tell without people thinking that [he] was gay." M.D. said that he was scared "and just whenever [Defendant] pretty much wanted to do it [M.D.] let him." M.D. testified that his reputation was very important to him.
M.D. described three separate occasions which involved Defendant performing fellatio on him in the classroom around the holidays of Valentine's Day, Easter, and Christmas; in the elementary school's locker room; and in Defendant's car in Barfield Park after M.D. got his learner's permit to drive. M.D. said Defendant began coming to his house in the morning after his mother left for work. M.D. described three separate sexual encounters which occurred in his bedroom, in the kitchen, and in the living room. M.D. said that Defendant always touched other parts of his body, such as his legs, buttocks, and chest, while he engaged in oral sex. M.D. said that Defendant performed fellatio on him over one hundred times in Defendant's classroom, and twenty-five to thirty times in M.D.'s house. M.D. said that "[i]t became so often, it was like a routine." M.D. testified that Defendant performed oral sex on him about three times a week from sometime in the fall of 2001 until sometime in early 2003.
M.D. said that he was too embarrassed to tell his mother about the encounters. He acknowledged that Defendant gave him money, clothes, and a phone card. Defendant started doing M.D.'s homework for him. M.D. saved $2,000, and Defendant found him a car to purchase.
M.D. said that he finally "forged up enough courage" and told Defendant he "didn't want to do anything" anymore, and Defendant refrained from sexual contact for four or five months. At some point, Defendant told M.D. that he wanted to marry him and take care of him. Defendant said that M.D. "wouldn't have to worry about anything." M.D. told Defendant that he "couldn't see him that way," and Defendant cried.
On cross-examination, M.D. said that he had heard rumors that Defendant was homosexual when M.D. attended Barfield Elementary School. M.D. acknowledge that he told his friend, Ash Smith, that he was homosexual, but M.D. said that he was "joking around."
Linda Devine, M.D.'s mother, testified that Defendant came to her house one day and asked Ms. Devine if M.D. could help him with the soccer team. Defendant told her that he was "a good Christian person" and taught Sunday school. Ms. Devine said she thought the arrangement was appropriate because Defendant was a teacher and a coach. Ms. Devine acknowledged that Defendant often picked M.D. up in his car, usually on Saturdays. She did not notice anything inappropriate in Defendant's behavior during the first year that M.D. worked for Defendant.
Shortly before Defendant's arrest, Ms. Devine said she overhead M.D. telling someone on the telephone that he "didn't want to go." About five minutes later, Defendant arrived at her house and asked "is our boy ready to go?" Defendant's reference to "our boy" upset Ms. Devine. M.D. came into the kitchen and told Defendant that he did not want to go and started crying. Defendant began to yell at M.D., and M.D. yelled back. Ms. Devine said she did not understand what was going on, but she told Defendant that she did not want him to see M.D. anymore. Defendant called Ms. Devine after the incident, and Ms. Devine asked Defendant if he was homosexual. Defendant avoided answering her question and simply replied, "you know me better than that."
Ms. Devine stated that M.D. had saved $2,000 toward the purchase of a car. Defendant called Ms. Devine at work and told her that he had found a 1995 Honda for that price. Ms. Devine told Defendant to take the car to a mechanic she knew. The mechanic told Ms. Devine that the car was a good purchase at that price. Ms. Devine said that she never met the seller. She made a check out in the name of "Ron Wilson" for $2,000, and gave the check to Defendant. Defendant paid the fees necessary to transfer title and register the car without Ms. Devine's knowledge, which angered Ms. Devine because she did not have enough money at the time to reimburse Defendant. Ms. Devine was looking forward to surprising M.D. with the car, but Defendant drove the car to M.D.'s high school without telling her. Ms. Devine said she was very upset over Defendant's disregard of her wishes, and never talked to him again. Defendant, however, sent her a gift basket. On the enclosed card, Defendant apologized, included some Bible verses, and thanked Ms. Devine for being "a wonderful mother to [M.D.]"
On cross-examination, Ms. Devine said it was her understanding that Defendant occasionally bought M.D. clothes in lieu of paying him cash for his work. Ms. Devine acknowledged that after Defendant told M.D. he would help him find a car, that M.D. called Defendant frequently to check on the progress of the search. She said that she gave M.D. permission to go with Defendant to a tanning bed salon.
Ms. Devine said that she got a call from one of M.D.'s teachers who told her that Defendant was calling all of M.D.'s teachers and asking about his progress in school. Ms. Devine wrote a letter to Riverdale High School instructing the teachers not to talk with Defendant about M.D. Ms. Devine said that Defendant registered the Honda in both her name and his name without her knowledge. Ms. Devine said that after she told Defendant to leave M.D. alone, her neighbors told Ms. Devine that they had seen Defendant parked in Ms. Devine's driveway at 3:30 a.m. one morning, and that they had subsequently seen Defendant driving through the neighborhood.
Sarah Hudson, one of M.D.'s teachers at Riverdale High School, testified that she received an e-mail from Defendant on March 26, 2003, identifying himself as a coach at Barfield Elementary School. Defendant wrote:
I believe [M.D.] is a student of yours if I am not mistaken. I have been acting in the absence of his father for sometime now and have been trying to help him get caught up on some of his assignments and make passing grades. Can you please let me know what his grade is as of today and if there is anything he needs to get caught up on or do? He is pretty good about calling me for help, but he has ADHD so bad that he forgets a lot of stuff and does not have much support. He is a real good boy at heart and just needs a little help. If you will please contact me here at Barfield and let me know what you can, I will appreciate it greatly. Do not mention it to [M.D.] as he embarrasses easily and I do not want that for him.
Ms. Hudson said that she did not see anything inappropriate in the request and responded to Defendant's e-mail before she received instructions from Ms. Devine not to do so.
Julie Burgess testified that she was friends with Defendant and often talked with him. Defendant spoke of M.D. to Ms. Burgess and said that he felt like a "father figure" to M.D. Ms. Burgess at first thought that Defendant was helping M.D. because he was "genuinely concerned for this child's benefit." Defendant told Ms. Burgess that he was helping M.D. with his homework and mentioned that he and M.D. traded clothes sometimes.
On one occasion, Ms. Burgess received an e-mail from Defendant in which Defendant inquired about modeling because Ms. Burgess' son sometimes modeled. Defendant wrote that M.D. and another student were interested in securing modeling jobs. Ms. Burgess said that in the e-mail Defendant wrote that M.D. would "be a better choice because he was really beefy." The e-mail triggered concern, but Ms. Burgess said that she could not believe that Defendant was doing anything inappropriate. Ms. Burgess said that she trusted Defendant with her son and the other children because he was a teacher and a coach, and exhibited a great deal of concern for his students. Accordingly, Ms. Burgess dismissed her concerns over the e-mail, believing that Defendant has simply "used the wrong wording." Ms. Burgess said that Defendant never discussed his sexual orientation, and Defendant had made references to prior girlfriends during their conversations.
Ron Wilson testified that he had placed an advertisement for the sale of his wife's 1995 Honda for $5,500 in March 2003. He received a call from Defendant who told Mr. Wilson that Defendant was helping a former student buy a car. Defendant told Mr. Wilson that he did not want the student to know that the car cost more than $2,000. Defendant brought Mr. Wilson a check in the amount of $2,000 as a down payment, and Mr. Wilson agreed to allow Defendant to pay the remaining $3,500 in monthly installments. Mr. Wilson said that he did not put Defendant's name on the title when he transferred title to Ms. Devine. Mr. Wilson also acknowledged that he did not list himself as a lien holder on the title, and he stated that he gave Defendant the title to his car because he trusted him.
About two weeks before he was arrested, Defendant separately told Judy Goodwin, the principal at Barfield Elementary School, Scott Culp, the school's student resources officer, and Greg Raffo, Defendant's fellow employee, that he was seeing a nineteen-year-old student at Middle Tennessee State University whom he had helped buy a car. Defendant said that he and his friend had exchanged watches to celebrate their relationship. Defendant expressed concern about losing his friend, because his friend was having trouble adjusting to a homosexual lifestyle. Defendant told Mr. Culp that he and his friend had "made love" a couple of weeks ago, and it was the best time they had ever had. Mr. Raffo said on cross-examination that it was obvious that Defendant was in love with his friend.
Fran Bowen, the secretary for Riverdale High School, testified that Defendant left lunch for M.D. at the front office six or seven times over a two-week period sometime around the beginning of April 2003. Defendant told Ms. Bowen that he was M.D.'s father. Ms. Bowen eventually grew concerned. When asked, M.D. told Ms. Bowen that Defendant was not his father and grew visibly upset when questioned about Defendant.
Ms. Bowen called Ms. Goodwin at Barfield Elementary School and asked Ms. Goodwin if she was aware that Defendant was on the Riverdale campus bringing lunch to one of their students. Ms. Goodwin testified that she confronted Defendant about leaving the Barfield campus during the day, and Defendant acknowledged that he occasionally took lunch to M.D. at Riverdale High School. Defendant assured Ms. Goodwin that M.D. and the college student with whom he was involved were two separate people, although Defendant acknowledged to Ms. Goodwin that the watch he was wearing belonged to M.D.
On cross-examination, Ms. Goodwin described Defendant as a "model teacher." She said that she had never seen any inappropriate conduct on Defendant's part. Ms. Goodwin said, however, that she was not aware that Defendant had hired M.D. to help him with the soccer team, and she would not have approved the arrangement had she known about it.
Ms. Bowen told Teresa Garvey, the student resource officer assigned to Riverdale High School, about Defendant bringing lunch to M.D., and Officer Garvey interviewed M.D. Officer Garvey said that M.D. told her that Defendant was "creeping him out" because he kept calling M.D.'s house and bringing lunch to the high school. M.D. said Defendant's behavior was embarrassing, and he wanted Defendant to leave him alone. M.D. did not mention the sexual encounters to Officer Garvey.
Detective Randy Groce, with the Rutherford County Sheriff's Department, testified that he and Officer Culp interviewed Defendant at Barfield Elementary School on April 2, 2003, after speaking with M.D. Detective Groce read Defendant his Miranda rights, and Defendant executed a written waiver of his rights. Defendant told Detective Groce that M.D. had helped him with the Barfield soccer team. Defendant also acknowledged that he helped M.D. with his homework, and listened to M.D. when M.D. needed to talk about what was going on in his life. Defendant denied that there was any sexual contact.
During the interview, Defendant described some of his interactions with M.D., including helping M.D. find a car to buy, buying M.D. clothes and a phone card, and sometimes trading clothes with him. After listening to Defendant describe his relationship with M.D., Officer Culp told Detective Groce that there might be a problem. Detective Groce left Defendant and Officer Culp alone in the interview room for a short period so that the two men could talk. When Detective Groce returned, Officer Culp told Detective Groce about Defendant's prior conversation with him concerning Defendant's relationship with a college student, and the similarities between that relationship and Defendant's relationship with M.D. as described during the interview. Defendant assured Officer Culp and Detective Groce that the college student and M.D. were not the same person.
Officer Culp said that Defendant came to his office about an hour after the interview and assured Officer Culp again that the college student and M.D. were two separate people. Officer Culp said that Defendant called him that night around 9:30 p.m. and asked Officer Culp to pray with him. Defendant continued to insist that he had not had any sexual contact with M.D. Eventually, however, Defendant told Officer Culp that it was "all oral" and asked if that did not "make a difference." Officer Culp called Detective Groce the next morning and instructed him to interview M.D. again.
Detective Groce and Officer Garvey interviewed M.D. a second time. During this interview, M.D. was very upset and eventually told the officers about Defendant's sexual contacts with him.
Detective Groce interviewed Defendant again on April 3, 2003. Defendant acknowledged in his second statement that he had engaged in a sexual relationship with M.D for some time. Defendant said that he and M.D. fell in love, and that he initially intended to wait until M.D. was eighteen years old before engaging in sex. Defendant admitted, however, that he performed fellatio on M.D. six or eight times over the course of their relationship. Defendant insisted that he never did anything that M.D. did not want to do, and he said that he would never hurt M.D. Defendant stated that over the past couple of weeks, M.D. had started to withdraw from him. Defendant said that he was hurt by M.D.'s withdrawal, but he accepted the fact that he could not be with M.D.
Detective Groce said that Defendant executed a written consent of a search of his vehicle. Detective Groce said that M.D.'s photograph and a Riverdale High School annual was found in the car.
The State rested its case, and Defendant presented the following proof. Blake Williams testified that he did a one-year internship in Nashville for the 2002/2003 school year while he was a student at Mississippi State University. He became friends with Defendant who subsequently introduced him to M.D. around mid-December 2002. The three men had lunch and then went shopping. Defendant bought M.D. two sweaters and some cologne. Mr. Williams said that M.D. appeared comfortable around Defendant. On cross-examination, Mr. Williams said that he never asked Defendant about M.D.'s age. He said that Defendant acknowledged to him that Defendant and M.D. engaged in sexual relations. Mr. Williams knew that Defendant was worried about losing M.D. in the spring of 2003.
Ash Smith testified that he was a year ahead of M.D. in high school, and he and M.D. were on the swim team together. They became friends through this connection. Mr. Smith said that he told M.D. that he (Mr. Smith) was homosexual in December 2002. M.D. admitted to Mr. Smith that he was homosexual also and had "been with two" people. M.D. introduced Mr. Smith to Defendant at a swim meet. Mr. Smith acknowledged that M.D. did not interact with the other homosexual students at school.
On cross-examination, Mr. Smith said that M.D. told him that Defendant took care of him. Mr. Smith said that Defendant called him four or five times to talk about M.D. Mr. Smith acknowledged that he told Defendant that his relationship with M.D. was inappropriate. Mr. Smith said that M.D. did not tell anyone else that he was homosexual because M.D. was concerned about his reputation at school.
Detective Groce was recalled as a witness. He acknowledged that M.D. did not say in his recorded statement that Defendant threatened him, only that M.D. felt "pressured" into having sex.
II. Amendment to the Indictment
Defendant argues that the trial court erred when it permitted the State to amend counts twenty-six through forty-five of the indictment without his consent but before jeopardy attached. Defendant contends that the verbiage added to these counts by way of amendment impermissibly added or alleged a different offense. We observe initially that it appears from the record that a hearing on the State's motion to amend the indictment was held on October 20, 2003. Defendant has failed to include a transcript of the motion hearing in the record. It is the duty of the appealing party to prepare an adequate record for appellate review. Tenn. R. App. P. 24(b). "When a party seeks appellate review there is a duty to prepare a record which conveys a fair, accurate and complete account of what transpired with respect to the issues forming the basis of the appeal." State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993). Nonetheless, we elect to address Defendant's issue on the merits.
Counts twenty-six through forty-five of the indictment filed on July 9, 2003, charged that Defendant,
did unlawfully and knowingly have sexual contact with [M.D.], at a time when the said victim was thirteen (13) years of age or older but less than eighteen (18) years of age and the defendant had, at the time of the offense, supervisory or disciplinary power over the victim by virtue of defendant's legal, professional or occupational status and used such power to accomplish the sexual contact, on a separate occasion than in [the other counts] in violation of T.C.A. 39-13-527.
Tennessee Code Annotated section 39-13-527 provides as follows:
(a) Sexual battery by an authority figure is unlawful sexual contact with a victim by the defendant or the defendant by a victim accompanied by the following circumstances:
(1) The victim was, at the time of the offense, thirteen (13) years of age or older but less than eighteen (18) years of age; and either
(A) The defendant had, at the time of the offense, supervisory or disciplinary power over the victim by virtue of the defendant's legal, professional or occupational status and used such power to accomplish the sexual contact; or
(B) The defendant had, at the time of the offenses, parental or custodial authority over the victim and used such authority to accomplish the sexual contact.
Defendant filed a motion for a bill of particulars requesting, among other factors, "the precise manner in which the professional or occupational status was used to accomplish the sexual contact" with respect to the charged offense of sexual battery by an authority figure. In its bill of particulars, the State alleged that Defendant held a position of authority because he hired the victim to assist him with the soccer team and perform other tasks, that he held himself out as a father figure, and that he used his position as "a teacher, custodian, employer, and father figure" to accomplish the unlawful acts.
The State then filed a motion to amend counts twenty-six through forty-five of the indictment to include the verbiage from subpart (1)(B) of Tennessee Code Annotated section 39-13-527(a), that is, Defendant had exercised parental or custodial authority over the victim by virtue of holding himself out as a father figure, as an alternative means of establishing Defendant's position as an authority figure. The State argued that the language was inadvertently omitted, and that Defendant had adequate notice that the State intended to proceed under both theories as reflected in its bill of particulars. According to its order, the trial court found that Defendant had sufficient notice that the State intended to proceed under both subpart (A) and subpart (B) of Tennessee Code Annotated section 39-13-527(a)(1), and granted the State's motion to amend the indictment.
An accused is constitutionally guaranteed the right to be informed of the nature and cause of the accusation. U.S. Const. amend. 6, 14; Tenn. Const. art. I, 9; see Wyatt v. State, 24 S.W.3d 319, 324 (Tenn. 2000). Our courts have interpreted this constitutional mandate to require an indictment to "1) provide notice to the accused of the offense charged; 2) provide the court with an adequate ground upon which a proper judgment may be entered; and 3) provide the defendant with protection against double jeopardy." Wyatt, 24 S.W.3d at 324 (citations omitted). Our Supreme Court has concluded that "indictments which achieve the overriding purpose of notice to the accused will be considered sufficient to satisfy both constitutional and statutory requirements." State v. Hammonds, 30 S.W.3d 294, 300 (Tenn. 2000). Thus, an indictment's specific reference to a statute may be sufficient to provide the accused with notice of the charged offense. State v. Sledge, 15 S.W.3d 93, 95 (Tenn. 2000).
Rule 7(b) of the Tennessee Rules of Criminal Procedure provides that an indictment may be amended before jeopardy attaches without the defendant's consent "[i]f no additional or different offense is thereby charged and no substantial rights of the defendant are thereby prejudiced." An indictment need not allege the specific theory or means by which the State intends to prove each element of the offense in order to sufficiently provide the accused with notice of the charged offense. See Hammonds, 30 S.W.3d at 302 (holding that an indictment for aggravated assault was sufficient because it alleged the appropriate mens rea, the assault and the use of a weapon, even though the indictment failed to indicate whether the State intended to prove the underlying assault was committed by bodily injury, reasonable fear of imminent bodily injury, or offensive physical conduct); State v. Burkley, 804 S.W.2d 458, 460 (Tenn.Crim.App. 1990) (holding that an amendment to an indictment for first degree burglary prior to the attachment of jeopardy specifying the felony the defendant intended to commit once inside the residence did not charge an addition or different offense); State v. Evangeline Combs and Joseph D. Combs, Nos. E2000-02801-CCA-R3-CD, E2000-02800-CCA-R3-CD, 2002 WL 31118329, *41 (Tenn.Crim. App, at Knoxville, Sept. 25, 2002), perm. to appeal denied (Tenn. Jan. 27, 2003) (holding that an amendment to an indictment for especially aggravated kidnapping prior to the attachment of jeopardy which deleted the language "to terrorize the victim," "had no substantive effect on the charge" when the indictment alleged "serious bodily injury," an element of both the former and current statute).
In order to support a charge of sexual battery by an authority figure, the State may prove the defendant's status as an authority figure under one of two statutory theories. See T.C.A. 39-13-527(a)(1)(A) and (B). Defendant argues that the State, by including the language of subpart (1)(A) in the indictment while not referring to subpart (1)(B), served notice as to only one specific theory, and an amendment to the indictment which expanded the State's theory to include subpart (1)(B) impermissibly broadened the scope of the indictment.
As to each count, Defendant was charged with committing one offense of sexual battery by an authority figure in violation of Tennessee Code Annotated section 39-13-527 before the amendment, and with only one offense of sexual battery by an authority figure after the amendment. The amendment, therefore, did not charge an additional or different offense. Moreover, Defendant requested and received a bill of particulars setting forth the factors upon which the State was relying to establish Defendant's position as an authority figure to the victim before the State moved to amend these counts of the indictment. These factors included both theories encompassed within section 39-13-527. Therefore, Defendant was not surprised or prejudiced by the amendment to the indictment, which was consistent with the State's bill of particulars. Accordingly, no substantial rights of Defendant were prejudiced.
III. Sufficiency of the Evidence
At the end of the State's case in chief, the State elected to submit to the jury twelve discrete incidents of unlawful sexual contact by Defendant. In support of the charges of rape in counts one through five of the indictment, and the corresponding charges of sexual battery by an authority figure in counts twenty-six through thirty, the State elected the following incidents: (1) for counts one and twenty-six, the incident in Defendant's classroom when Defendant showed M.D. the videotape of heterosexual sexual activities; (2) for counts two and twenty-seven, the incident in Defendant's classroom around Halloween; (3) for counts three and twenty-eight, the incident in Defendant's classroom around Christmas; (4) for counts four and twenty-nine, the incident in Defendant's classroom around Valentine's Day; and (5) for counts five and thirty, the incident in the locker room of the elementary school.
In support of the charges of statutory rape in counts eleven through seventeen, and the charges of sexual battery by an authority figure in counts thirty-one through thirty-seven of the indictment, the State elected the following incidents: (1) for counts eleven and thirty-one, an incident at Easter in Defendant's classroom; (2) for counts twelve and thirty-two, the incident in Defendant's car at Barfield Park; (3) for counts thirteen and thirty-three, the incident in M.D.'s house when the victim was getting out of the shower; (4) for counts fourteen and thirty-four, the incident in M.D.'s kitchen; (5) for counts fifteen and thirty-five, the incident in M.D.'s living room; (6) for counts sixteen and thirty-six, the incident in M.D.'s bedroom; and (7) for counts seventeen and thirty-seven, the incident occurring when Defendant brought the Honda to M.D.'s house after he had the vehicle fixed.
Defendant argues (1) that the evidence was insufficient to support his rape convictions because there was no evidence that Defendant used force to accomplish the offense; (2) that the proof presented at trial was insufficient to establish that he occupied a position of an authority figure in relation to the victim; and (3) that the State failed to provide any evidence supporting Defendant's convictions arising out of incidents described as taking place on Christmas and Easter.
In reviewing Defendant's challenge to the sufficiency of the convicting evidence, we must review the evidence in a light most favorable to the prosecution in determining whether a rational trier of fact could have found all the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979). Once a jury finds a defendant guilty, his or her presumption of innocence is removed and replaced with a presumption of guilt. State v. Black, 815 S.W.2d 166, 175 (Tenn. 1991). The defendant has the burden of overcoming this presumption, and the State is entitled to the strongest legitimate view of the evidence along with all reasonable inferences which may be drawn from that evidence. Id.; State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). The jury is presumed to have resolved all conflicts and drawn any reasonable inferences in favor of the State. State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984). Questions concerning the credibility of witnesses, the weight and value to be given the evidence, and all factual issues raised by the evidence are resolved by the trier of fact and not this court. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). These rules are applicable to findings of guilt predicated upon direct evidence, circumstantial evidence, or a combination of both direct and circumstantial evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn.Crim.App. 1990).
A. Rape Convictions
Defendant was convicted of five counts of rape which is defined, as relevant here, as the unlawful sexual penetration of the defendant by a victim, and force or coercion is used to accomplish the act. T.C.A. 39-13-503(A)(1). "Sexual penetration" includes fellatio. Id. 39-13-501(7). "Coercion" means "threat of kidnapping, extortion, force or violence to be performed immediately or in the future, or the use of parental, custodial, or official authority over a child less than fifteen (15) years of age." Id. 39-13-501(1).
M.D. testified that Defendant's sexual conduct began in the fall of his sophomore year in high school when he was fifteen years old. In connection with count one, M.D. testified that Defendant played a video tape depicting heterosexual sexual activity and began to rub M.D.'s back. Defendant then placed his hand on top of M.D.'s private parts over his clothes, and started rubbing M.D.'s penis. Defendant unzipped M.D.'s pants and performed oral sex on M.D.
In support of count two, M.D. said that his girlfriend's birthday was November 4, 2001. Some time shortly before Halloween, October 21, 2002, Defendant hired M.D. to clean his classroom, during which time Defendant performed oral sex on him.
In support of count three, the State elected an incident that occurred around Christmas. M.D. stated that "something happened almost every month." M.D. testified that one of the offenses occurred around Christmas "[s]ame as it always was. [Defendant would] just do what he wanted to with me, and I just stood there and let him. It became so often it was like a routine." M.D. said this incident occurred before Defendant started coming to his house before school.
In support of count four, M.D. testified that Defendant performed oral sex on him around Valentine's Day in Defendant's classroom. M.D. said that Defendant asked M.D. to hang little red hearts on his classroom door.
In support of count five, M.D. described an incident which occurred in the locker room of the Barfield Elementary School. The school janitors were cleaning Defendant's classroom when Defendant and M.D. returned from a soccer game. Defendant told M.D. to put the soccer equipment in the classroom and then accompany him to the showers. Defendant told M.D. to undress and stand under the shower. Defendant performed anilingus first, and then fellatio.
Defendant does not dispute that he performed oral sex on M.D. during the five incidents elected by the State to support his convictions. Defendant contends, however, that no force or coercion was involved, and that he is guilty at most of statutory rape for the offenses in counts one through five of the indictment. The State argues that Defendant's ongoing threats to expose his sexual contact with M.D. to M.D.'s friends and family supports a finding that Defendant used coercion in committing the offenses.
M.D. testified that before Defendant committed fellatio on M.D. the first time in Defendant's classroom, Defendant warned M.D. not to say anything or he would tell all of M.D.'s friends that M.D. was homosexual. M.D. said that Defendant mentioned two of M.D.'s friends by names. M.D. had previously confided to Defendant that his reputation among his fellow students at high school was very important to him. M.D. acknowledged that he felt threatened by Defendant's statements because he was afraid that "people would find out and it would ruin my reputation and [he] couldn't have the life that [he] wanted to have."
M.D. testified that after Defendant verbally threatened him with exposure "two or three" times, he "got the hint." M.D. said that after this time, Defendant stopped threatening him and just started expecting sex. The implicit threat of exposure, however, remained. M.D. said, "so, I never just asked because I knew he would say the same thing. So I just let him do it."
Based on the facts presented in this case, we conclude that Defendant used coercion to engage in the unlawful sexual penetration of the victim. Defendant cultivated the victim's trust and confidence for approximately one year before initiating sexual contact, and used the victim's confidences which were disclosed during this relationship to support his continued threat of exposure of the unlawful sexual contacts should the victim resist his advances. See State v. McKnight, 900 S.W.2d 36, 50 (Tenn.Crim.App. 1994) (holding that a defendant's threats to impugn a victim's reputation by telling others that the victim engaged in homosexual activities is sufficient to support a finding of coercion). Based on the foregoing, we conclude that the evidence is sufficient for a rational trier of fact to find beyond a reasonable doubt that Defendant committed the offense of rape based on the incidents presented in counts one through five of the indictment.
B. Statutory Rape
The offense of statutory rape is the sexual penetration of a victim by the defendant, or the defendant by a victim, when the victim is between the ages of thirteen and eighteen, and the defendant is at least four years older than the victim. See T.C.A. 39-13-506(a). "Sexual penetration" includes the act of fellatio. See id. 39-13-501(7). The use of force or coercion is not an element of the offense of statutory rape. Compare T.C.A. 39-13-503 with T.C.A. 39-13-506.
Defendant was born on February 17, 1965, and M.D. was born on June 28, 1986. The State elected to submit the following seven discrete incidents to the jury in support of the statutory rape charges in counts eleven through seventeen, and the sexual battery by an authority figure charges in counts thirty-one through thirty-seven.
In support of count eleven, M.D. testified that Defendant performed oral sex on him in Defendant's classroom around Easter.
In support of count twelve, M.D. testified that Defendant picked him up one afternoon after school after M.D. had received his driver learner's permit. Defendant let M.D. drive his car and directed him to drive to Barfield Park. Defendant told M.D. to park in an isolated spot, and Defendant performed fellatio on M.D.
In support of count thirteen, M.D. testified that when he was a junior in high school, Defendant started coming to his home after his mother left for work at 5:30 a.m. and before M.D. left for school. M.D. said he always left the front door open when his mother was not at home because he was scared of the dark. One morning, Defendant was in M.D.'s house unannounced when M.D. stepped out of the shower, and Defendant performed oral sex on M.D.
In support of count fourteen, M.D. said that Defendant performed oral sex on him one day in his kitchen before Defendant attended a teacher's meeting at Blackman High School. M.D. said that Defendant made him close the blinds so the neighbors would not see them.
In support of count fifteen, M.D. said that another incident occurred in his bedroom while M.D. was getting dressed. Defendant made M.D. lie down on the bed and performed oral sex on him.
In support of count sixteen, M.D. said that Defendant performed oral sex on him in the middle of his living room on another occasion.
In support of count seventeen, the State relied on Defendant's statement to the police in which he described a sexual encounter that occurred when he brought the Honda to M.D. after Defendant had the vehicle fixed. Defendant said that he and M.D. "made love" that morning at M.D.'s house. Defendant identified this incident as occurring in October 2002, but the transfer of title submitted as an exhibit at trial states that the 1995 Honda was sold to "Linda Devine or Craig Fults" on March 20, 2003.
As to this last count, we observe that a conviction may not be based solely upon a defendant's confession. State v. Smith, 24 S.W.3d 274, 281 (Tenn. 2000) (citing Ashby v. State, 139 S.W. 872, 875 (Tenn. 1911)). The confession, however, may be considered in connection with other evidence, both direct and circumstantial, which, independently of the confession, tends to establish the corpus delicti of the offense charged. Id. The corroborating evidence is sufficient to sustain a conviction if "it tends to connect the defendant with the commission of the offense, although the evidence is slight, and entitled, when standing by itself to but little consideration." Ricketts v. State, 241 S.W.2d 604, 606 (Tenn. 1951); See also Smith, 24 S.W.3d at 281. M.D. testified that Defendant performed fellatio on him between twenty-five and thirty times in M.D.'s house. M.D. stated that it was the "same thing [fellatio], every time." Based on our review of the record, we find sufficient evidence corroborating Defendant's description of an unlawful sexual act occurring at M.D.'s house after Defendant had bought the Honda for M.D.
Based upon the foregoing and our review of the record, we find the evidence sufficient to support Defendant's convictions beyond a reasonable doubt for statutory rape in counts eleven through seventeen. Defendant is not entitled to relief on this issue.
C. Sexual Battery by an Authority Figure
For each rape conviction in counts one through five, and for each statutory rape conviction in counts eleven through seventeen, Defendant was convicted of the offense of sexual battery by an authority figure in counts twenty-six through thirty-seven of the indictment.
As noted above, this offense is defined as follows:
(a) Sexual battery by an authority figure is unlawful sexual contact with a victim by the defendant, or the defendant by a victim, accompanied by the following circumstances:
(1) the victim was, at the time of the offense, thirteen (13) years of age or older, but less than eighteen (18) years of age, and either:
(A) The defendant had, at the time of the offense, supervisory or disciplinary power over the victim by virtue of the defendant's legal, professional or occupational status and used such power to accomplish the sexual contact; or
(B) The defendant had, at the time of the offense, parental or custodial authority over the victim and used such authority to accomplish the sexual contact.
T.C.A. 39-13-528(a) (2003). "`Sexual contact' includes the intentional touching of the victim's, the defendant's, or any other person's intimate parts, or the intentional touching of the clothing covering the immediate area of the victim's, the defendant's, or any other person'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). "Intimate parts" includes the primary genital area, groin, inner thigh, buttock or breast of a human being. Id. 39-13-501(2).
Defendant argues that the evidence is insufficient to support a finding that he served as an authority figure to the victim. Before addressing this challenge, however, based on our review of the record, there is an issue as to whether Defendant's dual convictions for rape or statutory rape and sexual battery by an authority figure for each incident violate principles of double jeopardy. Because this issue was not raised on appeal, we cannot address it unless we first find plain error.
An error which has affected the substantial rights of a defendant may be noticed at any time in the discretion of the appellate court where necessary to do substantial justice. Tenn. R. Crim. P. 52(b); State v. Taylor, 992 S.W.2d 941, 944 (Tenn. 1999). Dual convictions resulting in a violation of a defendant's protection against double jeopardy constitute "plain error." See State v. Epps, 989 S.W.2d 742, 745 (Tenn.Crim.App. 1998) (applying plain error doctrine to review whether the defendant's dual convictions violated double jeopardy principles).
The double jeopardy clause of the United States Constitution provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. amend. V. Similarly, under our Tennessee Constitution, "no person shall, for the same offense, be twice put in jeopardy of life or limb." Tenn. Const. art. 1, 10. "[W]hether two offenses are the `same' for double jeopardy purposes depends upon a `close and careful analysis of the offenses involved, the statutory definitions of the crimes, the legislative intent and the particular facts and circumstances.'" State v. Denton, 938 S.W.2d 373, 378 (Tenn. 1996) (quoting State v. Black, 524 S.W.2d 913, 919 (Tenn. 1975)).
"Multiplicity concerns the division of conduct into discrete offenses, creating several offenses out of a single offense." State v. Phillips, 924 S.W.2d 662, 665 (Tenn. 1996).
In determining whether two or more unlawful sexual acts may be the subject of separate convictions, our Supreme Court has suggested consideration of the following factors:
1. temporal proximity — the greater the interval between the acts, the more likely the acts are separate;
2. spatial proximity — movement or repositioning tends to suggest separate acts;
3. occurrence of an intervening event — an interruption tends to suggest separate acts;
4. sequence of the acts — serial penetration of different orifices as distinguished from repeated penetrations of the same orifice tends to suggest separate offenses; and
5. the defendant's intent as evidence by conduct and statements.
State v. Barney, 986 S.W.2d 545, 548-49 (Tenn. 1999).
In State v. Taylor, 63 S.W.3d 400 (Tenn.Crim.App. 2001), the Court explained that if the multiple acts consist of an unlawful touching and fellatio,
[t]he cardinal question [is] `whether [the defendant's] touch of [the victim's] penis was to commit a separate base criminal act or to facilitate the oral copulations . . . that shortly followed.' (citation omitted.) If the act in question directly facilitated or was merely `incidental' to the accompanying sexual conduct (e.g. applying lubricant to the area of intended copulation), convictions for both acts would be barred. (citation omitted). On the other hand, if the act in issue was `preparatory' in the sense that the goal was sexual arousal of either victim or defendant, then separate convictions would not be improper.
Taylor, 63 S.W.3d at 406 (quoting People v. Madera, 231 Cal. App. 3d 845, 282 Cal. Rptr. 674, 679-80 (1991)).
With these principles in mind, M.D. testified that during the first instance of rape reflected in count one and the corresponding sexual abuse by an authority figure charge in count twenty-six, Defendant rubbed his penis, and then unzipped his pants before he performed fellatio on M.D. This touching was "preparatory" to the oral copulation that followed and would allow a separate conviction of sexual battery by an authority figure. See Taylor, 63 S.W.3d at 407. Likewise, the incident reflected in counts five and thirty which occurred in the Barfield Elementary School locker room involved both anilingus and fellatio. These offenses involved different orifices requiring re-positioning of the victim, and the act of anilingus was not "merely incidental" to the act of fellatio, but was a separate and discrete offense committed against the victim. Id. at 406. Accordingly, the unlawful touching of M.D.'s buttocks on this occasion would allow a separate conviction of sexual battery by an authority figure.
The remaining rape and statutory rape convictions, however, cannot support separate convictions for sexual battery by an authority figure. In support of the charges of sexual battery by an authority figure in counts twenty-seven through thirty-seven, M.D. testified that Defendant always touched his legs, buttocks, and back while he performed fellatio. The testimony indicates that the touching occurred simultaneously with the act of fellatio which supported the corresponding rape or statutory rape conviction, without any intervening event, and without significant movement or repositioning of the victim. Based on the factors outlined in Barney, we are compelled to conclude that the dual convictions as to these counts violated double jeopardy principles. Accordingly, Defendant's conviction of sexual battery by an authority figure in counts twenty-seven through twenty-nine are merged into his convictions for rape in counts two through four, respectively. Defendant's convictions for statutory rape in counts eleven through seventeen are merged into his convictions of sexual battery by an authority figure in counts thirty-one through thirty-seven, respectively. See State v. Banes, 874 S.W.2d 73, 81 (Tenn.Crim.App. 1993) (Under the merger concept, the lesser conviction merges with the greater offense resulting in one judgment of conviction).
As to sufficiency of the evidence for the remaining convictions of sexual battery by an authority figure, the testimony established that the offenses began in the fall of M.D.'s sophomore year in high school in 2001, and extended until the spring of his junior year in high school in 2003. M.D. thus was between thirteen and eighteen years old when the offenses occurred. The touching supporting Defendant's convictions in counts twenty-six and thirty of the indictment involved Defendant touching M.D.'s penis and buttocks respectively, both of which are statutorily "intimate parts." M.D. further testified that Defendant "just got something out of it like it felt good to him," supporting a finding that the unlawful touching was for the purpose of Defendant's sexual arousal or gratification.
Defendant's issue on direct appeal, however, challenges his status as an authority figure. In support of the charges of sexual battery by an authority figure based on the incidents which occurred in Defendant's classroom, M.D. testified that Defendant hired him to perform various chores in his classroom and to assist him at soccer games. In support of the charge of sexual battery by an authority figure in count twenty-six, M.D. said that while he was employed in his duties, Defendant began touching M.D.'s penis over his clothes. Similarly, in support of the sexual battery by an authority figure in count thirty, M.D. testified that he was hired to help Defendant return the soccer equipment to the elementary school after a game. Defendant directed M.D. to put the equipment in the classroom and then followed him to the showers where Defendant performed anilingus on M.D. Under the facts presented in this case, we conclude that the evidence is sufficient to establish that on both occasions, Defendant had supervisory power over M.D. by virtue of his status as M.D.'s employer, and that he used such power to accomplish the sexual contacts.
Based on our review of the record, we conclude that a rational trier of fact could conclude beyond a reasonable doubt that Defendant is guilty of the offense of sexual battery by an authority figure in counts twenty-six and thirty. Defendant is not entitled to relief on this issue.
IV. Sentencing Issues
Defendant does not challenge the length of his sentences but argues that the trial court erred in ordering his sentences to be served consecutively. When a defendant challenges the length or the manner of service of his or her sentence, this Court must conduct a de novo review with a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d); State v. Imfeld, 70 S.W.3d 698, 704 (Tenn. 2002). This presumption, however, is contingent upon an affirmative showing in the record that the trial court considered the sentencing principles and all relevant facts and circumstances. State v. Pettus, 986 S.W.2d 540, 543-44 (Tenn. 1999). If the record fails to show such consideration, the review of the sentence is purely de novo. State v. Shelton, 854 S.W.2d 116, 123 (Tenn.Crim.App. 1992).
In making its sentencing determinations the trial court must consider: (1) the evidence presented at the sentencing hearing; (2) the pre-sentence report; (3) the principles of sentencing and arguments as to sentencing alternatives; (4) the nature and characteristics of the criminal conduct; (5) any appropriate enhancement and mitigating factors; (6) the defendant's potential or lack of potential for rehabilitation or treatment; and (7) any statements made by Defendant in his own behalf. Tenn. Code Ann. §§ 40-35-103 and -210; State v. Williams, 920 S.W.2d 247, 258 (Tenn.Crim.App. 1995). If the trial court has imposed a lawful sentence by following the statutory sentencing procedure, given due consideration and proper weight to the factors and sentencing principles, and made findings of fact adequately supported by the record, this Court may not modify the sentence even if it would have preferred a different result. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn.Crim.App. 1991). The defendant bears the burden of showing that his sentence is improper. Tenn. Code Ann. § 40-35-401(d) Sentencing Commission Comments; State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).
When a Defendant is convicted of multiple crimes, the trial court, in its discretion, may order the sentences to run consecutively if it finds by a preponderance of the evidence that a defendant falls into one of seven categories. Tenn. Code Ann. § 40-35-115. The imposition of consecutive sentences is also guided by the general sentencing principles that the length of a sentence be `justly deserved in relation to the seriousness of the offense' and `no greater than that deserved for the offense committed.'" Imfeld, 70 S.W.3d at 708 (quoting Tenn. Code Ann. §§ 40-35-102(1) and -103(2)); State v. Lane, 3 S.W.3d 456, 461 (Tenn. 1999).
At the sentencing hearing, Donna Moore, the coordinator of sex offender services for Centerstone Mental Health Center, testified that she performed a psychosexual evaluation of Defendant which included a clinical interview and the administration of a series of psychological tests including the Minnesota Multiphasic Personality Inventory (MMPI-2); the Multiphasic Sex Inventory (MSI); the State Trait Anger Inventory Test-2 (STAXI-2); and the STATIC-99.
Dr. Moore said that Defendant's MMPI-2 test results were inconclusive because the validity scales were highly elevated. In other words, Defendant's responses to certain questions indicated that Defendant was not honest in his approach to taking the test. Dr. Moore said that the MSI examines the level of the participant's sexual functioning, including both deviant and normal behavior. Defendant's responses suggested an asexual profile, denying not only an interest in deviant sexual behavior but also normal sexual behavior. The STAXI-2 attempts to measure a participant's amenability to out-patient treatment and examines such factors as anger and denial. The test reflected that Defendant tended to monitor the outward expression of anger. The final test, STATIC-99, a risk assessment tool, measured Defendant's risk for recidivism as low moderate. The factors in the test are unchanging, and include the participant's age, number of prior convictions, the nature of the offense, and the victim's characteristics.
Based on the clinical interviews, Dr. Moore said that Defendant expressed "a lot of empathy for his situation, but less so for the victim." Defendant acknowledged that a sexual relationship with a minor was illegal, but Dr. Moore observed that there was a disconnect between recognizing the illegality of the situation and recognizing that it was wrong or harmful. Dr. Moore described Defendant's relationship with M.D. as consistent with the "grooming" type of relationship she had seen in other sex offenders. Typically, this situation begins with "a plutonic or helping relationship" and progresses to a sexual relationship. On cross-examination, Dr. Moore elaborated that "grooming is a process of eliciting compliance over a period of time," often through gifts, such as clothes and money. The gifts are usually "enticing to the adolescent victim," basically "a hook," but present a confusing situation to the victim who usually wants the gifts, but not the consequence of accepting the gifts.
Dr. Moore described Defendant clinically as a paraphilia hebephiliac. Paraphilia is sexual disorder based on the person's sexual interests. Hebephilia denotes a person interested in adolescent victims. Dr. Moore said that Defendant's lack of understanding or recognition of the wrongfulness of his relationship with the victim indicated a lack of amenability to rehabilitation at the present time.
Erin Stephens, with the Tennessee Board of Probation and Parole, prepared Defendant's presentence report. According to the report, Defendant graduated from Middle Tennessee State University in 1986 with a Bachelor of Science degree in secondary education. Defendant taught in the public school system for approximately ten years. Defendant has no prior criminal record. Defendant stated in the report that "M.D." was "involved with [Defendant] on his own accord, and used [Defendant] to gain what he wanted, namely help with a car." Defendant denied that he was guilty of "rape by coercion or force" or sexual battery and considered himself a "victim of a scam by a teenage hustler."
In his victim's statement, M.D. said that as a result of the offenses, he has lost his friends and had to change high schools, and he suffered a loss of self-esteem and pride, as well as the life he once knew. Ms. Devine stated that M.D. did not have "a male influence in his life" until he met Defendant, and she initially thought her son's relationship with Defendant was a positive "good thing" because Defendant was a teacher and a coach. Ms. Devine said that since Defendant's arrest, her son has been ridiculed and suffers from low self-esteem as a result of the offenses. Ms. Devine said that both she and M.D. were in counseling.
Judy Goodwin, the principal at Barfield Elementary School, testified for the defense. She stated that Defendant was a good teacher and was very creative with the students. Defendant participated in several extra-curricular activities and was well-liked by his peers. On cross-examination, Ms. Goodwin said that she had no reason to suspect that Defendant posed a danger to children, but she acknowledged that she was unaware of any of Defendant's interrelationships with children other than those arising in the scope of Defendant's duties as a teacher. Ms. Goodwin acknowledged that Defendant related to students better than his peers. Ms. Goodwin said that Defendant was suspended from teaching as soon as she was made aware of the charges.
Betty Fults, Defendant's mother, testified that she and her husband adopted Defendant when he was two or three days old. Ms. Fults said that Defendant had always lived at home. She said that the victim used to call her home six or eight times a day, demanding money, clothes, and a car. On one occasion, M.D. threatened to kill Ms. Fults if she did not fire the private investigator whom the Fults had hired to investigate M.D. Ms. Fults said that she was not aware, and did not really believe, that Defendant was homosexual.
Defendant testified on his own behalf. Initially, we observe that a portion of the transcript of Defendant's direct examination and all of his cross-examination is missing from the record. The appellant has the burden of providing a record that conveys a fair, accurate and complete account of what transpired at the trial court with respect to the issues raised on appeal. State v. Oody, 823 S.W.2d 554, 559 (Tenn.Crim.App. 1991). In the absence of a full and adequate record, we must ordinarily presume that the trial court's ruling was correct. However, there are sufficient facts and circumstances in the record even without the presumption, to conclude that the trial court's order of consecutive sentencing was appropriate.
In the portion of his direct examination which is included in the record, Defendant said that he had been certified as a teacher since 1986. He taught in several school systems before coming to Barfield Elementary School in 1999 where he taught seventh grade social studies. Defendant said he was the advisor for the student counsel and started the school's soccer program. Defendant said he was active in church, and most recently was the piano player and choir director for his church. Defendant said that he assisted his elderly parents with chores and transportation.
Defendant said there were no funds available for the soccer program. During the initial 1999 season, he hired a former student to help coach the soccer team and paid him from his own funds. Later, Defendant hired former students periodically to help out at games and at the concession stand, and paid them twenty to twenty-five dollars per game. M.D. called him during the 2000-2001 school year, and asked Defendant if he could become an "assistant." Defendant said that he did not hire M.D., however, until the spring of 2002.
Defendant said M.D. often confided in him while he worked. Defendant said he was uncomfortable talking about some of M.D.'s issues, and Defendant referred M.D. to Coach Raffo. Eventually, Defendant and M.D. began spending more time together. The remaining portions of Defendant's direct and cross examination is not included in the record.
The trial court sentenced Defendant to nine years for each of his rape convictions, three years for each of his sexual battery by an authority figure convictions, and one year for each of his statutory rape convictions. The trial court found that the imposition of consecutive sentencing was appropriate under the criteria set forth in Tennessee Code Annotated section 40-35-115(5). In considering the nature of the relationship at issue, the trial court found that Defendant used his position as a teacher, coach, and "possibly mentor" to take advantage of the victim, and that the time span of the undetected sexual activity, regardless of some inconsistencies in the testimony, was significant. The trial court specifically found that Defendant was "grooming this young man by using pornographic material, performing oral sex on him at a number of places, various locations, buying him clothes, buying him cars, introducing him to the homosexual lifestyle or trying to expand his introduction to the homosexual lifestyle." The trial court also considered the extent of the residual physical and mental damage to the victim as reflected in the victim's statement contained in the presentence report.
The trial court ordered Defendant's sentences for his rape convictions to be served consecutively. The trial court ordered Defendant's sentences for his sexual battery by an authority figure convictions to be served consecutively to each other but concurrently with his sentences for the rape convictions. The trial court ordered Defendant's sentences for his statutory rape convictions to be served consecutively to each other but concurrently with his sentences for the rape convictions. Defendant's effective sentence is thus forty-five years.
If a defendant is convicted of two or more statutory offenses involving the sexual abuse of a minor, the trial court may impose consecutive sentencing upon "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." T.C.A. 40-35-115(5).
Defendant argues that there was neither a significant time span during which the sexual activity went undetected nor was there any evidence of residual damage to the victim. Defendant submits that the sexual acts were non-violent and "did not require any participation by" M.D.
Based on our review of the record, we conclude that the evidence does not preponderate against the trial court's finding that the criteria in Tennessee Code Annotated section 40-35-115(15) warranted the imposition of consecutive sentences. Defendant used his position as a teacher and a coach to gain M.D.' trust and confidence. For approximately a year before he escalated the relationship to a sexual level, Defendant ingrained himself into M.D.'s life by inviting the young man's confidences, providing advice, and giving M.D. the opportunity to earn money. After he introduced sex into the relationship, Defendant's attentions increased to encompass buying M.D. clothes, a phone card, and helping him buy a car. Defendant was aware of M.D.'s sensitivity to his reputation, a not uncommon concern among adolescents, and used M.D.'s fear of public disclosure to cement the sexual relationship. M.D. testified that the sexual contacts began in the beginning of his sophomore year in high school in 2001 and continued until late winter or early spring 2003, a significant amount of time. There is sufficient evidence in the record to document the residual damage to M.D. as a result of Defendant's offenses.
Accordingly, we conclude that the evidence does not preponderate against the trial court's finding that consecutive sentencing was warranted pursuant to Tennessee Code Annotated section 40-35-115(5).
CONCLUSION
After a thorough review of the record, we affirm the judgments of the trial court as to counts one through five, counts eleven through seventeen, count twenty-six, and count thirty, and affirm the trial court's imposition of consecutive sentencing. We merge Defendant's convictions of sexual battery by an authority figure in counts twenty-seven through twenty-nine into his rape convictions in counts two through four, and his convictions of statutory rape in counts eleven through seventeen into his convictions of sexual battery by an authority figure in counts thirty-one through thirty-seven.