State of Tennessee v. Zachary James Pence

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLLE
Assigned on Briefs October 13, 2015

STATE OF TENNESSEE v. ZACHARY JAMES PENCE

Appeal from the Circuit Court for Anderson County
Nos. A9CR0736, B1C00646 Donald R. Elledge, Judge

No. E2015-00476-CCA-R3-CD – Filed February 22, 2016

The Defendant, Zachary James Pence, was found guilty by an Anderson County Circuit
Court jury of aggravated rape of a child, a Class A felony, aggravated child abuse, a Class A
felony, and child abuse, a Class D felony. See T.C.A. §§ 39-13-531 (2014), 39-15-402
(2010) (amended 2011, 2012), 39-15-401 (2010) (amended 2011). The trial court sentenced
the Defendant to concurrent terms of sixty years for the aggravated rape of a child
conviction, twenty-five years for the aggravated child abuse conviction, and two years for the
child abuse conviction. On appeal, the Defendant contends that (1) the evidence is
insufficient to support his convictions, (2) the trial court erroneously permitted inadmissible
hearsay evidence, (3) the trial court improperly commented on the evidence, (4) the trial
court permitted improper opinion testimony, (5) the trial court improperly instructed the jury,
(6) his sentence for the aggravated rape of a child conviction is excessive, and (7) the
cumulative effect of the errors entitle him to relief. We affirm the judgments of the trial
court.

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

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR., and TIMOTHY L. EASTER, JJ., joined.

J. Thomas Marshall, Jr. (on appeal), District Public Defender, and Leslie Hunt (at trial),
Clinton, Tennessee, for the appellant, Zachary James Pence.

Herbert H. Slatery III, Attorney General and Reporter; Ahmed A. Safeeullah, Assistant
Attorney General; David S. Clark, District Attorney General; and Victoria Elizabeth
Bannach, Assistant District Attorney General, for the appellee, State of Tennessee.
 OPINION

In this case, the Defendant was indicted for aggravated child abuse and aggravated
rape of a child of his then-girlfriend‟s three-year-old daughter, A.F., and child abuse of the
Defendant‟s then-girlfriend‟s eighteen-month-old son, B.F.1 The offenses occurred in July
2009 while the Defendant cared for the children when their mother was at work.

At the trial, the victims‟ mother testified that A.F. was born on November 6, 2005, and
that B.F. was born on May 11, 2008. The victims‟ mother stated that she and the Defendant
began a romantic relationship near the end of 2008 and that the Defendant began living with
her and the children around February 2009. The victims‟ mother said that in July 2009, she
worked at a convenience store and that she usually worked the day shift. She said the
children did not have any injuries when she put them to bed on July 18, 2009, and that
nothing unusual occurred during the night. She said that on July 19, 2009, she worked the
day shift from 7:00 a.m. to 2:00 p.m. and that the Defendant cared for the children while she
was at work because her usual babysitter was unavailable.

The victims‟ mother testified that on July 19, the children were asleep when she left
for work, that she woke the Defendant to tell him she was leaving, and that she asked the
Defendant to call her when the children woke, which was usually by 9:00 or 9:30 a.m. She
said that the Defendant had not called her by 10:00 a.m., that she called the Defendant to
check on everyone, and that the Defendant said the children were still sleeping. She said that
about thirty minutes later, the Defendant called to tell her that the children were awake. The
victims‟ mother called the Defendant during her break to talk to the children, and the
Defendant stated that he was preparing the children‟s breakfast and that A.F. was not feeling
well. The victims‟ mother spoke to A.F., who was crying and wanted her mother to come
home. The victims‟ mother said that the children were recovering from a viral infection and
that she called the Defendant‟s mother, Ruby Miller, and requested she visit the children and
administer their medications. Although the victims‟ mother did not recall the time, she
received a text message from the Defendant stating that the children were sick and that the
victims‟ mother needed to come home. She called the Defendant‟s cell phone but spoke to
Ms. Miller, who stated that A.F. looked “extremely sick” and had a puffy face and lips and
that A.F. needed to go to the hospital.

The victims‟ mother testified that she left work as soon as her manager allowed, that
she attempted to obtain additional information from the Defendant on her way home, and that
the Defendant thought A.F. might have had an allergic reaction to the medication, although
he was unsure. When the victims‟ mother arrived home, she saw that A.F.‟s face appeared to
1
It is this court‟s policy to refer to minors and victims of sexual assault by their initials.

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be “swelling from her lips out[ward].” She said that A.F. had “little purple blue dots” on her
lips and small, light-colored bruises on her cheeks and around her mouth. After examining
A.F., the victims‟ mother examined B.F., who whined when she picked him up. The victims‟
mother saw that B.F.‟s face and lips were slightly swollen. The victims‟ mother asked the
Defendant if he had administered the victims‟ medications, and the Defendant said he had
not. She called Ms. Miller, who stated that she did not administer the medications earlier
because she feared allergic reactions. The victims‟ mother said that the children received
their last doses of medication the previous night around bedtime, that she did not notice any
allergic reactions, and that at least nine or ten hours had passed since their last doses. The
victims‟ mother said that A.F. had no known allergies at the time of the incident. Ms. Miller
drove to the family home and drove the victims‟ mother and the children to the children‟s
hospital.

The victims‟ mother testified that while she waited for Ms. Miller to arrive, the
victims‟ mother dressed the children. Relative to A.F., the victims‟ mother took A.F. to use
the bathroom and heard A.F. say her “pee-pee hurt[].” The victim‟s mother thought A.F.‟s
viral infection might have developed into a kidney or urinary tract infection. The victims‟
mother said that A.F. changed from her pajamas to regular clothes but did not change her
underwear. Although A.F. acted as though she did not feel well, the victims‟ mother said
A.F. did not appear scared. Relative to B.F., the victims‟ mother changed his diaper and
noticed a “break in the skin” on the rear thigh near the buttocks. She said the mark was light
red, long, and “kind of like a loop” but not a full circle.

The victims‟ mother testified that after Ms. Miller drove her and the children to the
children‟s hospital, she noticed A.F. had a light-colored bruise on the back of her thigh.
Upon further examination, the victims‟ mother saw that the bruise “steadily climb[ed] up the
back,” reaching the “crease” of her buttocks. The victims‟ mother said the bruise was
gradually turning colors, although she did not notice the bruise before arriving at the hospital.
The victims‟ mother advised the hospital nurse that A.F. was developing additional
symptoms. After being placed inside an examination room, the victims‟ mother noticed that
the corner of A.F.‟s eye was red, almost bloodshot, and that the redness gradually increased
to one-half of the eye.

The victims‟ mother testified that the physician requested permission to speak with
A.F. alone, that the physician and A.F. left the room momentarily, and that they returned.
The physician ordered a CAT scan of A.F.‟s head relative to her eye and ordered blood tests
for each child. The nurses asked the victims‟ mother about A.F.‟s bruises, and the victims‟
mother stated that the bruises were not present when she left for work that morning or when
they left home for the hospital. The victims‟ mother also told the nurses that the Defendant
cared for the children while she was at work that day.

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 The victims‟ mother testified that the nurses requested A.F. provide a urine sample for
analysis and that the victims‟ mother took A.F. to the bathroom to obtain the sample. She
said that after A.F. pulled down her underwear, the victim‟s mother saw dried blood spots on
the area of the underwear that covered A.F.‟s private area. The victims‟ mother did not
notice blood in A.F.‟s urine sample. The victims‟ mother informed the nurses of the blood,
and a nurse examined A.F.

The victims‟ mother testified that the physician asked A.F. various questions about the
injuries and that A.F. answered the questions. The victims‟ mother later learned about A.F.‟s
statements to the physician when they spoke outside the victims‟ mother‟s presence. The
victims‟ mother said she was shocked, upset, and confused. She said that a detective entered
the examination room and requested permission to speak to A.F. alone and that the victims‟
mother consented. The detective and A.F. spoke for about twenty minutes, and they returned
to the examination room. The victims‟ mother said Sarah Powell from Child Protective
Services (CPS) also spoke to A.F. alone. After Ms. Powell and A.F. returned, the victims‟
mother and Ms. Powell spoke outside the children‟s presence. The victims‟ mother stated
that she told Ms. Powell the Defendant had been home with the children, and they discussed
the children‟s injuries and their previously contracting a viral infection. The children were
sent to live temporarily with their maternal great-grandmother.

The victims‟ mother testified that while various individuals spoke to A.F., the victims‟
mother saw red marks on B.F.‟s face, which were not visible when they left home for the
hospital, and said that the mark on B.F.‟s leg began to bruise. The victims‟ mother said that
she sent the Defendant text messages around 8:00 or 9:00 p.m. and that she suggested he
come to the hospital to talk about what occurred while she was at work. She told the
Defendant that the hospital staff thought the children had been abused. She said the
Defendant arrived at the hospital approximately one hour after the exchange of text
messages.

The victims‟ mother identified photographs taken at the children‟s hospital of A.F.‟s
and B.F.‟s injuries. The photographs showed A.F. had a “bloodshot” left eye, purple-colored
bruises around the mouth, lips, cheeks, and forehead, and scratches on and below the nose.
The victims‟ mother noted A.F.‟s face and lips were swollen. Photographs also showed
bruises and “purple and red striped marks” across A.F.‟s buttocks and upper right thigh.
Other photographs showed a red substance on the vaginal area of the underwear A.F. wore to
the hospital. Relative to B.F., photographs showed “red blotches” on the nose, cheeks,
forehead, and the area around the eyes. The victims‟ mother noted that B.F.‟s face appeared
swollen at the bottom of the nose and the cheeks. Other photographs showed red marks on
B.F.‟s upper right thigh and buttocks.

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 The victims‟ mother testified that after she left for work on July 19, only the
Defendant and Ms. Miller had contact with the children and that the Defendant did not
mention anyone else being inside their home.

The victims‟ mother testified that she left the hospital with Ms. Miller around 1:00
a.m., that Ms. Miller drove her home, and that the Defendant stayed overnight with Ms.
Miller. The victim‟s mother drove to the sheriff‟s office later that morning to speak to the
investigating detective, and the Defendant went with her. She said that her home was two
houses down the street from Ms. Miller‟s home, that she walked to Ms. Miller‟s home, that
the Defendant was lying on the sofa, and that he agreed to talk to the detective. The victims‟
mother said that before they left Ms. Miller‟s home, the Defendant told her that he spanked
A.F. with a belt and that he touched her buttocks but not “in a sexual way.” The victims‟
mother said that at the time, she only knew A.F. “had been touched” in her vaginal area, not
the details of the contact. She said the Defendant told her that he did not touch A.F. in the
manner the medical personnel and detective said A.F. had been touched. The victims‟ mother
said she was in shock and asked the Defendant why he spanked A.F., although the victims‟
mother did not recall the Defendant‟s answering the question initially. The victims‟ mother
said the Defendant denied hurting B.F. She asked the Defendant why he would hurt a baby,
and the Defendant told her that “it was like [he] blacked out.” She said that the Defendant
admitted what he did was wrong and recalled the Defendant‟s stating A.F. was “being bad
and not listening.”

The victims‟ mother testified that she, the Defendant, Ms. Miller, the Defendant‟s
sister, and the Defendant‟s niece drove to the sheriff‟s office to speak with the detective.
The victims‟ mother reported to the detective the substance of the Defendant‟s admissions
while at Ms. Miller‟s house earlier that morning. After the victims‟ mother, the Defendant,
and Ms. Miller provided their statements to the police, they left the sheriff‟s office and
returned to their respective homes.

The victims‟ mother testified that she next spoke to the Defendant two days later and
that the Defendant said that he did not know why he “did it,” that he blacked out, that he
loved the children, and that he would not hurt them. The victims‟ mother asked the
Defendant about his touching A.F., and the Defendant stated that A.F. complained of pain
when she urinated, that he examined A.F. to ensure she did not have diaper rash, and that he
placed his finger on A.F.‟s private area and opened her legs to ensure nothing was irritating
A.F. The victims‟ mother said the Defendant never stated he inserted his finger in A.F.‟s
vagina. The victims‟ mother said she spoke to the Defendant at a later date and recalled the
Defendant‟s telling her that he and Ms. Miller were the only individuals in the house with the
children while the victims‟ mother was at work. The victims‟ mother said that she initially
believed the Defendant‟s version of the events because she did not think the Defendant was

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capable of abusing a child. She said, though, that at the time, she had not seen all the
evidence or spoken to A.F. about the incident.

On cross-examination, the victims‟ mother testified that at the time of the trial, she did
not have custody of the children, that the juvenile court ordered her not to have contact with
the children, and that the no-contact order had been effective since August 20, 2009. She
agreed that at the juvenile court hearing, she testified that the Defendant was not guilty. She
agreed her initial belief that the Defendant was not capable of the allegations was one of the
reasons she had not regained custody of the children.

The victims‟ mother testified that she wrote to the Defendant after his arrest. She
agreed that she initially was concerned about a neighbor being inside her home when she was
not there. She said she learned after the Defendant‟s arrest that the neighbor possibly had a
previous child molestation conviction. She noted the neighbor had been inside in her home
and had brought A.F. gifts. The victims‟ mother recalled that about eight days before she
took the children to the hospital for the viral infection, she saw fingerprints on the outside of
her daughter‟s bedroom window and became concerned someone had entered her home
through the window.

The victims‟ mother testified that when she arrived home on the day of the incident,
she thought the victims‟ injuries were related to the viral infection. She agreed the Defendant
initiated the first telephone call to his mother on the day of the incident and expressed
concern about the victims. She agreed that although the Defendant had not cared for both
children simultaneously before the incident, the Defendant had watched one of the children
many times and that no problems arose. She agreed A.F. and the Defendant appeared to have
a good relationship. Relative to the day of the incident, the victims‟ mother agreed A.F. and
the Defendant did not act unusual and noted A.F. did not appear scared of the Defendant.
The victims‟ mother agreed that the Defendant said he had spanked A.F. with a belt, although
he did not state the number of times, because A.F. was misbehaving and not listening to the
Defendant.

On redirect examination, the victims‟ mother testified that after she read the
Defendant‟s statement to the police, she no longer believed the Defendant‟s version of
events. Relative to the fingerprints outside A.F.‟s bedroom window, she said that although
she did not know who left the fingerprints, she knew the person was an adult based on the
size of the hand. She said that the day of the incident was the first time the Defendant cared
for both children while she worked all day. She said that the previous times in which the
Defendant cared for the children were for short periods of time. The victims‟ mother noted
the children usually attended daycare and said she usually did not work on weekends.

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 The victims‟ mother testified that she did not spank her children and that the children
were disciplined with time out or the loss of television privileges. She had discussed her
method of discipline with the Defendant. She said that at the time of the incident, B.F. could
not talk, although A.F. could talk and referred to the Defendant by his name.

A.F. testified that she was six years old and that she had recently finished
kindergarten. She identified an anatomical drawing of a female and identified the buttocks as
an area for “bad touches.” She also identified the vaginal area, which she referred to as her
“private part,” as an area for bad touches. When asked if anyone had touched her in a good
or bad place, she said that she forgot. She said, though, that she did not want to talk about
bad touches because she was scared. A.F. refused to answer any further questions because
she was afraid.

Ruby Miller, the Defendant‟s mother, testified that she vaguely remembered the
Defendant‟s dating the victims‟ mother and that she did not recall taking the victims and the
victims‟ mother to the children‟s hospital on July 19, 2009. When presented with her
statement to the police, she did not recall telling the detective that the Defendant admitted he
had touched and spanked A.F. and that the Defendant said he “blacked out or something.”
Ms. Miller said that she had not spoken to the Defendant much since his arrest.

CPS Investigator for the Department of Children‟s Services (DCS) Sarah Powell
testified that after arriving at the children‟s hospital, she spoke to the treating physician and
to A.F. Ms. Powell noted A.F.‟s injuries previously identified by the victims‟ mother and
identified a photograph showing scratches and bruises on the victim‟s neck and shoulder.
Ms. Powell said the bruises looked similar to finger marks.

Ms. Powell testified that she conducted a forensic interview with A.F., that Ms.
Powell‟s questions depended upon A.F.‟s answers, and that A.F. identified the Defendant as
the person who hurt her. Ms. Powell said that the interview lasted about ten minutes and that
the victim provided clear answers. Ms. Powell spoke to the victims‟ mother and afterward,
took the children to stay with a relative pending a juvenile court hearing held three days later.

Ms. Powell testified that she examined B.F. and observed “red dots, petechial or
something” on his face and a “whelp-like shape on his side,” which she said was red, “fresh,”
and recently inflicted. She noted the mark was not in the bruising stage. After she examined
B.F., she and the Defendant discussed the day‟s events.

Ms. Powell testified that the Defendant understood she was investigating A.F.‟s facial
swelling. The Defendant said that he called the victims‟ mother and requested the victims‟
mother take A.F. to the doctor‟s office. The Defendant said that he was aware A.F. had a

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vaginal tear, although he did not know what caused it. Ms. Powell told the Defendant that he
needed to be honest and that a limited number of people could have caused the tear. She said
the Defendant responded, “[W]hat happens if I did, will I go to jail?” Ms. Powell told the
Defendant that she was not a police officer and that her job was to learn what happened and
to obtain the proper medical treatment. The Defendant told Ms. Powell, “[L]et‟s just say I
did it.” Ms. Powell asked the Defendant if he caused the injury, and the Defendant answered
in the affirmative.

Ms. Powell testified that the Defendant said he used his left pointer finger and bent it
back and forth when asked to describe what he had done. He said that while A.F. was lying
on her back, he inserted his hand in A.F.‟s pull-up diaper. Ms. Powell said that although the
Defendant did not say whether he touched or penetrated A.F.‟s vagina with his finger, the
Defendant said it lasted about “two seconds . . . before he realized it was wrong.” Ms.
Powell asked the Defendant how far he inserted his finger, and the Defendant attempted to
give a measurement on his finger indicating how far he thought his finger had entered A.F.‟s
vagina. When Ms. Powell asked the Defendant what he was thinking, he told her that he was
“just curious.”

Ms. Powell testified relative to the markings on A.F.‟s buttocks that the Defendant
initially denied spanking A.F. but later admitted he spanked A.F. with a belt and a fly swatter
because A.F. was spitting and would not return to sleep. The Defendant told Ms. Powell that
he instructed A.F. to bend over the side of the bed before spanking her. The Defendant
denied noticing any blood on his hands or the bed afterward and did not respond when Ms.
Powell asked the Defendant if he placed anything over A.F.‟s face. Ms. Powell noted that
the Defendant appeared scared and “uptight” before telling her what occurred. She said that
although the Defendant relaxed after he told her what occurred, he showed no emotion and
only showed concern about what would happen to him.

On cross-examination, Ms. Powell testified that the victims‟ mother was not permitted
to have any contact with the victims because she failed to protect them. Ms. Powell noted
that the victims‟ mother did not believe the Defendant caused the injuries and that returning
the children to the family home would not have ensured their safety. Ms. Powell denied
threatening the Defendant with jail if he refused to talk to her. She said the Defendant did
not tell her to “put down whatever [she] wanted and he would just go along with it.” Ms.
Powell said that she and Detective Danielle Alexander observed A.F.‟s forensic interview.
On redirect examination, Ms. Powell testified that although A.F. provided additional
information during the forensic interview, A.F. did not provide inconsistent information.

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 Clinton Police Detective Danielle Alexander testified that she responded to the
children‟s hospital on July 19, 2009, that she took photographs of the victims‟ injuries, and
that she assisted the physician during his examinations of the victims. She identified the
photographs she took of A.F.‟s injuries, noting bruises and welts on the lower thigh, red
marks on the chest, a scratch on the upper thigh near the hip area, and red marks near the
vagina. After the medical examination, Detective Alexander submitted the sexual assault kit
to the Tennessee Bureau of Investigation (TBI) laboratory for analysis.

Detective Alexander testified that she interviewed the Defendant the following day at
the police station and that the interview was audio recorded. The recording was played for
the jury. In the recording, the Defendant stated that he entered the victims‟ room around
11:00 a.m. because he heard B.F. crying, although A.F. was still asleep. The Defendant said
he placed a pacifier in B.F.‟s mouth and laid B.F. down in the crib. The Defendant said he
noticed A.F. was not wearing a pull-up diaper and was naked, woke A.F., and told A.F. to
put on her pull-up diaper. The Defendant said he left the room and went to sleep. The
Defendant said that the victims‟ mother called around 11:30 a.m., that he told her the
victims‟ were still sleeping, and that after the telephone conversation ended, he entered the
victims‟ room. He said “it went bad.” The Defendant said A.F. was awake, behaving rowdy,
and would not listen when he asked A.F. to lie down and to watch a movie. The Defendant
said that as a result, he “whooped” A.F. with a belt and fly swatter and laid her on her bed.
Relative to A.F.‟s vaginal injuries, the Defendant told the detective that after he whooped
A.F. and laid her on her bed, he inserted his index finger in A.F.‟s vagina and described
moving his finger. Detective Alexander testified that the Defendant moved his finger as
though he were motioning for someone to move forward. In the recording, the Defendant
stated that he did not know why he “did it” but said that it lasted for two seconds before he
realized it was improper and left the room. The Defendant said A.F. did not say anything
during the incident. When questioned about when A.F. said her “pee-pee” hurt, the
Defendant said A.F. mentioned hurting after the victims‟ mother arrived home from work.
He noted A.F. was scratching her vaginal area just before telling the victims‟ mother that
A.F. was hurting. The Defendant also noted that his mother came to the home before the
victims‟ mother arrived and asked if he was okay. He said it was after his mother arrived that
he noticed A.F.‟s face began to swell. The Defendant denied striking B.F. The Defendant
inquired what would happen to him and said his biggest fear was going to jail.

Detective Alexander testified that after the interview, she drove to the victims‟
mother‟s home to take photographs and to collect A.F.‟s bedding. Detective Alexander said
that the bedding had been washed and was still wet inside the washing machine.

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 On cross-examination, Detective Alexander testified that the audio recording device
was not activated before she and the Defendant entered the room and that she began
recording after the Defendant agreed to speak with her. She did not recall the Defendant‟s
saying initially that he did not want to speak to the police. She said that someone other than
the Defendant told her that the Defendant inserted his finger in A.F.‟s vagina because he was
looking for a rash but that the Defendant never said anything about a rash.

Detective Alexander testified that she and the Defendant never discussed the marks on
A.F.‟s face and chest. She agreed that the marks on A.F.‟s buttocks were consistent with
being struck with a belt and fly swatter. She agreed her investigation showed A.F. and B.F.
had received medical treatment at the emergency room related to a rash on A.F.‟s face and
B.F.‟s chest.

Upon examination by the trial court, Detective Alexander testified that she considered
the Defendant‟s “whooping” synonymous with spanking.

Dr. Dante Pappano, a pediatric emergency medicine and child abuse expert, testified
that he treated the children at the children‟s hospital emergency room on July 19, 2009. He
said that B.F. presented with multiple bruises on his “right flank,” right buttock, hands, and
face. Dr. Pappano noted that the bruise on B.F.‟s buttock was loop-shaped and said that the
bruise was consistent with non-accidental trauma. B.F. was also diagnosed with two ear
infections and bronchiolitis. Dr. Pappano described the bruises as petechial, which were little
purple spots appearing as tiny bruises.

Dr. Pappano testified relative to A.F. that she had bruises on her face, forehead,
cheeks, lips, right inner thigh, and “dozens of red linear bruises over a global blue or purple
bruise” and that she had a small scleral hemorrhage, which was an area of blood on the white
of her eye. He said that the genital-urinary examination showed two small punctate
hemorrhages, or petechia, and two one-millimeter tears along the posterior portion of the
hymen. He said the tears were visible to the naked eye and magnification was not required.
Although no active bleeding was noted during the examination, dried blood was noted on
A.F.‟s underwear.

Dr. Pappano testified that A.F. disclosed the Defendant “hit” her and that she shook
her head affirmatively when asked if the Defendant hurt her “pee-pee.” Dr. Pappano said
that the victims‟ mother was inside the examination room when he initially questioned A.F.
about her injuries, that the victims‟ mother attempted to lead A.F., and that Dr. Pappano
twice asked the victims‟ mother to stop leading A.F. Dr. Pappano took A.F. to obtain a
popsicle, and A.F. discussed the “physical abuse.”

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 Dr. Pappano testified that he concluded the red linear bruises on A.F.‟s buttocks were
the result of non-accidental trauma. He said that the remaining bruises, when considered
individually, were not indicative of abuse but were suggestive of non-accidental trauma when
considered together. He also concluded that the vaginal tears were the result of non-
accidental trauma. Relative to the punctate bruising, or petechia, he said that three tests were
conducted to determine if A.F.‟s platelet levels caused the tiny petechia. Two of the three
tests were normal. Dr. Pappano said that although one test showed abnormal results,
spontaneous bruising would not occur. He noted, though, that less force was necessary to
cause the linear bruising.

On cross-examination, Dr. Pappano testified that the victims‟ mother reported that the
redness in A.F.‟s eye occurred four days previously. He agreed A.F. had older, yellow
bruises on her back and said those bruises were probably consistent with accidental trauma
that occurred twenty-four hours before he treated A.F. Dr. Pappano noted that dating bruises
was not an exact science and depended upon many factors. Relative to the abnormal results
from the blood test, Dr. Pappanno said that a normal result was between twenty-six and
thirty-five and that A.F.‟s result was forty-two, which created an increased risk for bruising
and excessive bleeding as a result of severe trauma. On redirect examination, Dr. Pappano
stated that he did not diagnose A.F. with a viral infection.

The victims‟ father testified that the children lived with their mother on the day of the
incident and that within a year of the incident, the children began living with him. He said
that after the children began living with him, A.F. was emotionally upset frequently and told
him “things” that occurred while she lived with her mother. The victims‟ father decided to
seek counseling for A.F., who saw a counselor for one and one-half years. He said that
although A.F. was doing well at the time of the trial, it took time for her to forget. He said
initially A.F. did not sleep well and had nightmares. Relative to B.F., the victims‟ father said
B.F. was too young to remember anything that occurred on the day of the incident.

The victims‟ father testified that he took the children to Johns Hopkins for an
evaluation relative to Dr. Pappano‟s concern that A.F. might have a blood disorder. The
victims‟ father said that the results showed no disorder.

On cross-examination, the victims‟ father testified that DCS contacted him on July 20,
2009, regarding the juvenile court hearing. Although the victims‟ father could have taken
custody of the children on the day of the hearing, he said he needed time to find suitable
housing and insurance for the children. He said that he was single at the time and living at a
hotel with a former co-worker, that the children‟s great-grandparents lived close, and that the
great-grandparents agreed to care for the children until he could find a place to live.

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 On redirect examination, the victims‟ father testified that although he did not see the
children often when they lived with their mother, he spoke to A.F. nightly on the telephone
and that A.F. cried during many of their conversations. He noted A.F.‟s crying after the
children began living with him “was a scared cry.”

The parties stipulated that the serology analysis of A.F.‟s underwear and the vaginal
swabs obtained during the physical examination failed to reveal the presence of semen.

Upon this evidence, the Defendant was convicted of aggravated rape of a child against
A.F., aggravated child abuse against A.F., and child abuse against B.F. This appeal
followed.

I

Sufficiency of the Evidence

The Defendant contends that the evidence is insufficient to support his aggravated
rape of a child and aggravated child abuse convictions. The Defendant does not challenge his
child abuse conviction. Relative to the aggravated rape of a child conviction, the Defendant
argues that the State failed to prove beyond a reasonable doubt that he engaged in unlawful
sexual penetration because no evidence established his conduct was based upon a sexual
motivation. Relative to the aggravated child abuse conviction, he argues that the State failed
to prove beyond a reasonable doubt that A.F. suffered serious bodily injury by causing severe
bruising. The State responds that the evidence is sufficient. We agree with the State.

In determining the sufficiency of the evidence, the standard of review is “whether,
after viewing 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.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979); see State v. Vasques, 221 S.W.3d 514, 521
(Tenn. 2007). The State is “afforded the strongest legitimate view of the evidence and all
reasonable inferences” from that evidence. Vasques, 221 S.W.3d at 521. The appellate
courts do not “reweigh or reevaluate the evidence,” and questions regarding “the credibility
of witnesses [and] the weight and value to be given the evidence . . . are resolved by the trier
of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); see State v. Sheffield, 676
S.W.2d 542, 547 (Tenn. 1984).

“A crime may be established by direct evidence, circumstantial evidence, or a
combination of the two.” State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998); see also State v.
Sutton, 166 S.W.3d 686, 691 (Tenn. 2005). “In the absence of direct evidence, a criminal
offense may be established exclusively by circumstantial evidence.” State v. Dorantes, 331

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S.W.3d 370, 379 (Tenn. 2011). “The standard of review „is the same whether the conviction
is based upon direct or circumstantial evidence.‟” Id. (quoting State v. Hanson, 279 S.W.3d
265, 275 (Tenn. 2009)).

A. Aggravated Rape of a Child

Aggravated rape of a child is defined as “the unlawful sexual penetration of a victim
by the defendant or the defendant by a victim, if the victim is three (3) years of age or less.”
T.C.A. § 39-13-531(a). Sexual penetration is defined as “sexual intercourse, cunnilingus,
fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person‟s
body . . . into the genital or anal openings of the victim‟s, the defendant‟s, or any other
person‟s body, but emission of semen is not required[.]” Id. § 39-13-501(7) (2010) (amended
2013).

The Defendant does not dispute that he penetrated A.F.‟s vagina with his finger or that
the victim was three years old. Rather, he argues that the State failed to prove that his
conduct was based upon a sexual motivation. However, our supreme court has stated that
“rape of child can be proven solely by evidence of sexual penetration, regardless of the
motivation for the act.” State v. Barney, 986 S.W.2d 545, 550 (Tenn. 1999). The record
reflects that the Defendant admitted to Ms. Powell and to Detective Alexander that he
penetrated A.F.‟s vagina with his finger. The Defendant also demonstrated for Detective
Alexander that he moved his finger as though he were motioning for someone to move
forward. The expert medical testimony reflects that the hymen was torn twice from the
Defendant‟s conduct. The State was not required to show that the Defendant had a sexual
motivation for his conduct. The evidence is sufficient, and the Defendant is not entitled to
relief on this basis.

B. Aggravated Child Abuse

In relevant part, “[a] person commits the offense of aggravated child abuse . . . who
commits the offense of child abuse, as defined in § 39-15-401(a) . . . and . . . [t]he act of
abuse . . . results in serious bodily injury to the child.” T.C.A. § 39-15-402(a)(1). Generally,
the offense is a Class B felony, but the offense is a Class A felony if the abused child is eight
years of age or less. Id. § 39-15-402(b). A person commits a form of child abuse “who
knowingly, other than by accidental means, treats a child under eighteen (18) years of age in
such a manner as to inflict injury.” Id. § 39-15-401(a). A person acts “knowingly”

with respect to the conduct or to circumstances surrounding the conduct when
the person is aware of the nature of the conduct or that the circumstances exist.

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 A person acts knowingly with respect to a result of the person‟s conduct when
the person is aware that the conduct is reasonably certain to cause the result.

Id. § 39-11-106(a)(20) (2010) (amended 2011, 2014); see id. § 39-11-302(b) (2014).
“„Serious bodily injury to the child‟ includes, but is not limited to, second- or third-degree
burns, a fracture of any bone, a concussion, subdural or subarachnoid bleeding, retinal
hemorrhage, cerebral edema, brain contusion, injuries to the skin that involve severe bruising
or the likelihood of permanent or protracted disfigurement, including those sustained by
whipping children with objects.” Id. § 39-15-402(d).

The Defendant‟s sole argument is that A.F.‟s bruises did not constitute serious bodily
injury. See T.C.A. § 39-15-402(d) (defining serious bodily injury to a child, in relevant part,
as severe bruising). In the light most favorable to the State, the record reflects that although
A.F. had older bruising on her back, A.F. had no injuries the night before the incident or the
following morning when the victims‟ mother left for work. After the victims‟ mother
returned home early from work at the Defendant‟s and Ms. Miller‟s requests, the victims‟
mother saw that A.F.‟s face and lips were swollen, that she had little purple dots on her lips,
and that she had bruises on her cheeks and mouth. After taking A.F. to the hospital, the
victims‟ mother saw a light-colored bruise on the back of A.F.‟s thigh, which extended to
A.F.‟s buttocks. The bruises gradually changed colors while at the hospital, and the victims‟
mother saw A.F.‟s eye become bloodshot and red marks develop on A.F.‟s face.
Photographs taken at the hospital reflect that A.F. had purple-colored bruises around her
mouth, lips, cheeks, forehead, buttocks, and thigh. The expert medical testimony reflects that
A.F. had “dozens of red linear bruises over a global blue or purple bruise” on her buttocks,
which were the result of non-accidental trauma. The photographs of A.F.‟s buttocks are
consistent with the expert medical testimony, and nothing in the record is inconsistent with
the Defendant‟s admission to Ms. Powell and Detective Alexander that he spanked A.F. with
a belt and fly swatter.

The determination of whether the Defendant‟s conduct inflicted serious bodily injury
by causing severe bruising was a question of fact for the jury to determine. The evidence
reflects that the injuries were inflicted after the victims‟ mother left for work but before A.F.
arrived at the children‟s hospital. We have reviewed the photographs of A.F.‟s bruises and
conclude that the jury could have found beyond a reasonable doubt that A.F. suffered severe
bruising resulting in serious bodily injury. The evidence is sufficient, and the Defendant is
not entitled to relief on this basis.

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 II

Inadmissible Hearsay

The Defendant contends that the victims‟ mother‟s testimony relative to Ms. Miller‟s
telling the victims‟ mother about the children‟s conditions in a telephone conversation was
inadmissible hearsay. The Defendant also argues that the victims‟ mother‟s testimony
relative to a hospital nurse‟s questioning A.F was inadmissible hearsay, which the trial court
improperly admitted. The State responds that the evidence was not hearsay because it was
not offered to prove the truth of the matter asserted. We agree with the State.

Hearsay “is a statement, other than one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the matter asserted.” Tenn. R. Evid.
801(c). Hearsay is inadmissible unless it qualifies as an exception. Id. at 802. However,
testimony not offered for the truth of the matter asserted but offered for the effect on the
listener is not subject to exclusion based on inadmissible hearsay. State v. Venable, 606
S.W.2d 298, 301 (Tenn. Crim. App. 1980); see State v. Carlos Jones, No. W2008-02584-
CCA-R3-CD, 2010 WL 3823028, at *14-15 (Tenn. Crim. App. Sept. 30, 2010), perm. app.
denied (Tenn. Mar. 9, 2011).

A. Testimony Relative to Ms. Miller

The record reflects that the prosecutor questioned the victims‟ mother relative to the
telephone conversations she had with the Defendant while she was at work. The victims‟
mother testified that she spoke to the Defendant, who said A.F. was not feeling well.
Concerned that a previous viral infection was lingering, the victims‟ mother called Ms.
Miller, the Defendant‟s mother, and requested Ms. Miller administer the victims‟
medications. The victims‟ mother received a subsequent text message from the Defendant
requesting she come home, and she called the Defendant to find out what was happening.
The victims‟ mother testified that she spoke to Ms. Miller during the call. Ms. Miller
reported that A.F. had puffy lips and face, that A.F. looked sick, and that the victims‟ mother
should return home and take the victims to the hospital. The victims‟ mother left work to
take the children to the hospital.

The Defendant objected on the ground of hearsay to the testimony relative to Ms.
Miller‟s statements to the victims‟ mother regarding A.F.‟s appearance and the request to
return home and take the children to the hospital. The prosecutor responded that the
testimony was offered for the effect on the listener and explained why the victims‟ mother
left work and returned home. The trial court overruled the objection. We conclude that the

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trial court did not err by admitting the evidence because it was not offered for the truth of the
matter asserted and was not hearsay. The Defendant is not entitled to relief on this basis.

We note that the Defendant argues that the trial court should have provided a limiting
instruction as to the proper use of the testimony. He concedes he did not request a limiting
instruction but argues that plain error relief requires a reversal of his convictions. See
T.R.A.P. 36. We disagree. The relevant testimony focused upon the reasons that the
victims‟ mother returned home from work and sought medical treatment for the victims. We
cannot conclude that the Defendant was prejudiced by the absence of a limiting instruction.
The record reflects that the Defendant admitted to multiple individuals to striking A.F. with a
belt and a fly swatter and to penetrating A.F.‟s vagina with his finger. Likewise, sufficient
evidence was presented relative to A.F.‟s and B.F.‟s injures. He is not entitled to relief on
this basis.

B. Testimony Relative to Children’s Hospital Nurse

The record reflects that during the victims‟ mother‟s testimony regarding the events at
the children‟s hospital, she stated that a nurse asked how A.F. sustained the bruises. The
victims‟ mother testified that the bruises were not visible when the victims‟ mother left for
work that morning and that the victims‟ mother did not notice the bruises when they left
home to drive to the hospital. The victims‟ mother also told the nurse that she had been at
work and that the Defendant had cared for the victims. The Defendant argued the nurse‟s
question and the victims‟ mother‟s response were inadmissible hearsay. The prosecutor
responded that the testimony was not offered for the truth of the matter asserted but was
offered to show the victims‟ mother‟s response to the nurse‟s question. The trial court ruled
that the victims‟ mother could respond to the questions asked of her and that the testimony
was not for the truth of the matter asserted.

We conclude that the trial court did not err by admitting the testimony. The victim‟s
mother‟s testimony regarding her answers to the nurse‟s question was not offered for the
truth of the matter asserted and was not inadmissible hearsay. However, the victims‟
mother‟s statement that she told the nurse that she was at work when the incident occurred
and that the Defendant cared for the children was offered for the truth of the matter asserted.
In any event, the victims‟ mother testified previously that the Defendant was home alone with
the children while she was at work earlier that day, and we note that the victims‟ mother was
subject to cross-examination. Any error in this regard was harmless, and we note the
overwhelming evidence of the Defendant‟s guilt.

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 The Defendant again argues that the trial court should have provided a limiting
instruction as to the proper use of the testimony. He concedes he did not request a limiting
instruction but argues plain error relief requires a reversal of his convictions. See T.R.A.P.
36. We disagree and conclude that the Defendant was not prejudiced by the absence of a
limiting instruction. The record reflects that the Defendant admitted to multiple individuals
he struck A.F. with a belt and a fly swatter and that he penetrated A.F.‟s vagina with his
finger. He is not entitled to relief on this basis.

III

Improper Comment on the Evidence

The Defendant contends that the trial court improperly commented on the evidence by
describing three photographs received as exhibits. He argues that the court‟s description of
the photographs expressed validation of the photographs. The State responds that the
Defendant failed to object to the trial court‟s statements when the photographs were received
as exhibits and alternatively, argues that the Defendant is not entitled to plain error relief.

The first relevant photograph was admitted during the victims‟ mother‟s testimony
and depicts a dried red substance on the vaginal area of A.F.‟s underwear. The victims‟
mother testified that the photograph depicted A.F.‟s panties and that she saw blood on the
panties. The Defendant objected to the witness‟s characterization that the red substance was
blood, and the court sustained the objection. The victims‟ mother testified that she believed
the red substance was blood because it was the same color as blood and went “directly
through her panties” and “soaked through.” The victims‟ mother said the substance could not
have been mistaken for feces from a bowel movement. The Defendant did not object to the
admission of the photograph, and the trial court noted the lack of objection and said the
exhibit was “panties showing what appears to be blood.” The Defendant did not object to the
court‟s statement.

The second photograph was admitted during Detective Alexander‟s testimony and
depicts red marks on A.F.‟s thigh. During Detective Alexander‟s testimony, she stated that
the marks were welts in the shape of a line. The Defendant did not object to the admission of
the photograph, and the trial court noted the lack of objection and said the exhibit was a
photograph of the “thigh of [A.F.] showing welts.” The Defendant did not object to the
court‟s statement.

The third photograph was admitted during Detective Alexander‟s testimony and
depicts red marks on A.F.‟s thigh near her hip and vagina. During her testimony, Detective
Alexander stated that the marks appeared to be scratches. The Defendant objected to the

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detective‟s characterization of “red marks beside the vagina.” At a bench conference, the
trial court stated that the detective testified that “they appeared to be scratches” and overruled
the objection. The Defendant did not object to the admission of the photograph, and the trial
court noted the lack of objection and said the exhibit was a photograph of “the right thigh
with that appears to be scratches.” The Defendant did not object to the court‟s statement.

Because the Defendant did not object to the trial court‟s statements identifying each
photograph, consideration of the merits of the issue is waived. See T.R.A.P. 36(a). Our
review is limited to consideration of whether plain error exists. See T.R.A.P. 36(b).

Five factors are relevant

when deciding whether an error constitutes “plain error” in the absence of an
objection at trial: “(a) the record must clearly establish what occurred in the
trial court; (b) a clear and unequivocal rule of law must have been breached;
(c) a substantial right of the accused must have been adversely affected; (d) the
accused did not waive the issue for tactical reasons; and (e) consideration of
the error is „necessary to do substantial justice.‟”

State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d 626,
641-42 (Tenn. Crim. App. 1994)). All five factors must exist in order for plain error to be
recognized. Id. at 283. “[C]omplete consideration of all the factors is not necessary when it
is clear from the record that at least one of the factors cannot be established.” Id. In order for
this court to reverse the judgment of a trial court, the error must be “of such a great
magnitude that it probably changed the outcome of the trial.” Id.; Adkisson, 899 S.W.2d at
642.

“In all cases the trial judge must be very careful not to give the jury any impression as
to his feelings or to make any statement which might reflect upon the weight or credibility of
evidence or which might sway the jury.” State v. Suttles, 767 S.W.2d 403, 406-07 (Tenn.
1989). A judge “should always be extremely careful not to express or intimate any opinion
on any fact to be passed upon by the jury.” Graham v. McReynolds, 18 S.W. 272, 275 (Tenn.
1891). The record reflects, though, that the trial court made no improper statements
regarding the exhibits. The court‟s statements, rather, were based upon the respective
witnesses‟ testimony in order to identify the exhibits for the record. We likewise note the
overwhelming evidence of the Defendant‟s guilt. The Defendant is not entitled to relief on
this basis.

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 IV

Improper Opinion Testimony

The Defendant contends that the trial court admitted improper opinion testimony by
allowing Ms. Powell to testify about the ages of the victims‟ bruises. He argues that Ms.
Powell was not qualified to render an opinion because she was not a medical expert. The
State responds that the trial court did not abuse its discretion because Ms. Powell‟s
statements were based upon common knowledge and were not conclusory.

Tennessee Rule of Evidence 701 states, “If a witness is not testifying as an expert, the
witness‟s testimony in the form of opinions or inferences is limited to those opinions or
inferences which are rationally based on the perception of the witness and helpful to a clear
understanding of the witness‟s testimony or the determination of a fact in issue.” Tenn. R.
Evid. 701 (a)(1)-(2). Our supreme court has noted that “[i]n situations where a [lay] witness
„cannot readily and with equal accuracy and adequacy‟ testify without an opinion, the witness
may state opinions requiring no expertise,” including whether a person was intoxicated or
whether a car was travelling fast. State v. Sparks, 891 S.W.2d 607, 614 (Tenn. 1995)
(quoting Tenn. R. Evid. 701, Advisory Comm‟n Cmt.).

In contrast, Tennessee Rule of Evidence 702, regarding expert opinion testimony,
states, “If scientific, technical, or other specialized knowledge will substantially assist the
trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as
an expert by knowledge, skill, experience, training, or education may testify in the form of an
opinion or otherwise.” Lay opinion testimony, however, is “limited to those observations of
a lay witness that are not based on scientific, technical, or other specialized knowledge which
would qualify the witness as an expert under Rule 702.” State v. Timothy Murrell, No.
W2001-02279-CCA-R3-CD, 2003 WL 21644591, at *6 (Tenn. Crim. App. July 2, 2003)
(citing United States v. Conn, 297 F.3d 548, 553 (7th Cir. 2002). Opinion testimony
otherwise admissible is not objectionable on the basis that the opinion embraces an ultimate
issue to be decided by the tier of fact. Tenn. R. Evid. 704.

The Defendant argues in his brief that Ms. Powell was permitted to provide improper
opinion testimony relative to both victims‟ injuries, but he has cited only to one page of the
trial transcript that addresses B.F.‟s bruises. Our review is limited to those statements.

Ms. Powell testified relative to B.F.‟s injuries that she observed “red dots, petechia or
something all over his face” and “a [red] whelp-like shape on his side,” which was “a perfect
outline of something.” She said the whelp was not “in the stage of bruising,” was “very
fresh,” and was red. The Defendant objected on the ground that Ms. Powell had provided an

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improper opinion relative to the age of the bruise. The trial court overruled the objection and
stated the witness could provide her opinion of what she observed and thought. The court
noted that Ms. Powell‟s work focused on child physical and sexual abuse and that she said
the injury appeared to be fresh. The court said that “[w]e all have injuries we can all tell
what a bruise [is] . . . whether it looks new or fresh.”

Our supreme court has stated that lay opinion testimony is admissible when “„facts
[are] perceived by [the] senses . . . , and it is difficult to describe them adequately to the jury,
and the conclusion or inference to be drawn from such facts is simple and within the range of
common experience[.]‟” Blackburn v. Murphy, 737 S.W.2d 529, 532 (Tenn. 1987) (quoting
Reed v. Allen, 522 S.W.2d 339, 343 (Tenn. App. 1974)). In State v. Samuel, 243 S.W.3d
592, 603 (Tenn. Crim. App. 2007), this court concluded that a female police officer‟s
testimony that a mark on the victim‟s neck appeared recent was proper lay opinion testimony
because it was “within the common knowledge of the general public, especially a mother.”
The court noted that the factual foundation to support the officer‟s opinion included the
officer‟s being a mother and having seen several injuries on her own children. Id. The court
determined that the opinion was based on the witness‟s personal observations, required no
expertise, and was within the range of common experience and that the officer‟s testimony
was “important to establishing” whether the victim suffered serious bodily injury during the
alleged rape. Id.

In the present case, Ms. Powell testified that she had investigated allegations of child
physical and sexual abuse for approximately five years. She observed B.F.‟s whelp marks,
which were red-colored. The photograph evidence supports Ms. Powell‟s testimony and do
not reflect a blue or purple color. We conclude that the freshness of the whelp was within the
common knowledge of the general public, was based on Ms. Powell‟s personal observations,
required no expertise, and was within the range of common experience. We, likewise,
conclude that the testimony was probative of when the injuries were inflicted. See Tenn. R.
Evid. 701. We note that although the Defendant argues that Ms. Powell‟s testifying that the
whelps appeared fresh contradicted Dr. Pappano‟s expert testimony on cross-examination
that dating bruises was not an exact science when questioned about A.F.‟s bruises, Dr.
Pappano was not questioned about the age of B.F.‟s injuries. Nothing in the record reflects
that Dr. Pappano documented the color of B.F.‟s injuries. Therefore, we conclude that the
trial court did not abuse its discretion by permitting Ms. Powell to testify about the freshness
of B.F.‟s whelp marks. The Defendant is not entitled to relief on this issue.

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 V

Jury Instructions

The Defendant contends that the trial court erred relative to the aggravated rape of a
child conviction by failing to instruct the jury on the difference between lawful and unlawful
genital penetration. In a related issue, the Defendant also contends relative to the aggravated
child abuse conviction that the trial court erred by refusing to answer a jury question during
its deliberations regarding the definition of severe bruising when the final jury instructions
did not include a definition. He claims the court should have provided the jury with an
additional definition. The State responds that the Defendant has waived these issues because
he failed to request special jury instructions and alternatively, argues that the trial court
properly instructed the jury and allowed the jury to determine whether the evidence satisfied
the ordinary definition of severe bruising.

A criminal defendant has “a right to a correct and complete charge of the law.”
Hanson, 279 S.W.3d at 280 (citing State v. Garrison, 40 S.W.3d 426, 432 (Tenn. 2000)). As
a result, a trial court has a duty “to give proper jury instructions as to the law governing the
issues raised by the nature of the proceeding and the evidence introduced at trial.” State v.
Hawkins, 406 S.W.3d 121, 129 (Tenn. 2013) (citing Dorantes, 331 S.W.3d at 390); see State
v. Thompson, 519 S.W.2d 789, 792 (Tenn. 1975). An erroneous jury instruction, though,
may deprive the defendant of the constitutional right to a jury trial. See Garrison, 40 S.W.3d
at 433-34.

Tennessee Rule of Criminal Procedure 30(b) states that after a trial court instructs the
jury, “the parties shall be given an opportunity to object . . . to the content of an instruction
that was given or the failure to give a requested instruction.” Although the failure to object
does not does not prevent a party from assigning error relative to instructional error in a
motion for new trial, our supreme court has stated that “alleged omissions in the jury charge
must be called to the trial judge‟s attention or be regarded as waived.” State v. Robinson, 146
S.W.3d 469, 509 (Tenn. 2004); see State v. Haynes, 720 S.W.2d 76, 84-85 (Tenn. Crim. App.
1986); see also Tenn. R. Crim. P. 30(b). As a result, “[i]n contrast to an erroneous
instruction or the failure to give a requested instruction, defense counsel cannot sit on an
objection to an omitted charge and allege it as a ground in the motion for a new trial.”
Robinson, 146 S.W.3d at 509.

A. Aggravated Rape of Child

The record reflects that the trial court took a recess after the presentation of the proof.
When court reconvened, the trial judge noted that the jury instructions were prepared during

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the break and that the instructions were a “combined effort” of the parties. The judge noted
that the final corrections were made fifteen minutes before court reconvened. The judge
asked the parties if they had any other additions, changes, or corrections to the jury
instructions or to the verdict forms. Trial counsel replied, “No, Your Honor.” When the
judge asked if counsel was satisfied with the instructions and wanted the judge to provide the
jury with the instructions, counsel said, “Yes, Your Honor.” No objections were made, and
closing arguments were made before the court provided the jury with the final instructions.

Relative to the aggravated rape of a child charge, the trial court instructed the jury
regarding the elements of the offense, including sexual penetration. The court instructed the
jury that sexual penetration “means any other intrusion, however slight, of any part of a
person‟s body or any object in the genital or anal openings of the alleged victim[‟]s, the
defendant[‟]s or any other person‟s body[, but] emission of semen is not required.” The
court, likewise, instructed the jury on lesser included offenses. After reading the instructions
in its entirety to the jury, the court asked the prosecutor and trial counsel if they had “any
other additions, corrections or alterations to the jury instructions.” Counsel replied, “No,
Your Honor.” The prosecutor noted three typographical errors, which were corrected by the
court. Counsel made no objections or special requests.

We conclude that the Defendant has waived consideration of the issue by failing to
argue in the trial court that an additional instruction was warranted regarding unlawful sexual
penetration. See Robinson, 146 S.W.3d at 509; Haynes, 720 S.W.2d at 84-85; see also
T.R.A.P. 36(a). Furthermore, we conclude plain error does not exist. See Smith, 24 S.W.3d
at 282; Adkisson, 899 S.W.2d at 641-42. The record reflects that the court provided the
proper instructions. See T.P.I.—Crim. 10.12 (18th ed. 2014). The Defendant has not
established a violation of a clear and unequivocal rule of law or that a substantial right was
adversely affected. The Defendant is not entitled to relief upon this basis.

B. Aggravated Child Abuse

The record reflects that during jury deliberations, a question was submitted to the trial
court. The court stated that the jury wanted the court to “clarify the definition of the term
severe bruising required for the charge of aggravated child abuse.” The prosecutor asked,
“Severe bodily injury, is that what they are saying?” Trial counsel showed the court
Tennessee Code Annotated section 39-15-402(d), defining serious bodily injury to the child,
in relevant part, as “injuries to the skin that involve severe bruising or the likelihood of
permanent or protracted disfigurement, including those sustained by whipping children with
objects.” The record reflects that the definition of serious bodily injury was reviewed by the
court and the parties. The court stated, “Counsel, it appears that they are going to have to
make their own determination as to what they believe severe bruising is. It says what it says.

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Let‟s bring them in.” Trial counsel did not object to the court‟s determination and did not
offer any suggestions about how to clarify the matter for the jury. After the jury returned to
the courtroom, the court instructed the jury as follows:

[S]evere bruising . . . the only definitions that we have and that I‟m able
to give you is what is in here. Whether or not you determine what . . . severe is
what you observe as to whether or not you think it‟s severe. It‟s a matter of
what each person determines is the best that I can tell you on that. I don‟t have
a definition, that I‟m aware of, that I can give . . . to you so it‟s a matter of
finding of facts, whether or not you think it‟s severe bruising. I know that
doesn‟t go into great clarification for you and apologize for that but I don‟t
have anything further available to me that would show in this instant what you
determine as a finding of fact what severe bruising is. . . . That‟s a finding of
fact you are going to have to make based upon the definition that they have
here. And you have got to determine what you believe severe bruising is based
upon the proof that‟s been submitted to you.

The jury resumed its deliberations, and no additional questions were submitted.

We conclude that the Defendant has waived consideration of the issue by failing to
object to the trial court‟s deciding to allow the jurors to determine whether A.F.‟s injuries
constituted serious bodily injury by severe bruising. See T.R.A.P. 36(a). We, likewise,
conclude that no plain error exists. See Smith, 24 S.W.3d at 282; Adkisson, 899 S.W.2d at
641-42. This court has stated that “where words and terms are in common use and are such
as can be understood by persons of ordinary intelligence, it is not necessary, in the absence of
anything in the charge to obscure their meaning, for the court to define or explain them.”
State v. Summers, 692 S.W.2d 439. 445 (Tenn. Crim. App. 1985). The words severe and
bruising are terms in common use and are understood by persons of ordinary intelligence.
The determination of whether A.F.‟s injuries resulted in severe bruising was a question of
fact for the jury. The court gave a proper instruction, and the Defendant has not shown the
court‟s lack of further clarification violated a clear and unequivocal rule of law or that a
substantial right was adversely affected. See T.P.I.—Crim. 21.01(c) (18th ed. 2014). The
Defendant is not entitled to relief on this basis.

VI

Excessive Sentence

The Defendant contends that his sentence for the aggravated rape conviction is
excessive. He does not challenge his aggravated child abuse and child abuse sentences. He

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argues that the trial court improperly applied enhancement factor (4), relative to a victim‟s
particular vulnerability, erred by finding that the Defendant was a poor candidate for
rehabilitation, and improperly relied upon depreciating the seriousness of the offense and
deterrence. The State responds that the trial court did not abuse its discretion because the
Defendant received a within-range sentence supported by the record. We agree with the
State.

This court reviews challenges to the length and manner of service of a sentence within
the appropriate sentence range “under an abuse of discretion standard with a „presumption of
reasonableness.‟” State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). A trial court must
consider any evidence received at the trial and sentencing hearing, the presentence report, the
principles of sentencing, counsel‟s arguments as to sentencing alternatives, the nature and
characteristics of the criminal conduct, any mitigating or statutory enhancement factors,
statistical information provided by the Administrative Office of the Courts as to sentencing
practices for similar offenses in Tennessee, any statement that the defendant made on his own
behalf, and the potential for rehabilitation or treatment. State v. Ashby, 823 S.W.2d 166, 168
(Tenn. 1991) (citing T.C.A. §§ 40-35-103 (2014), -210 (2014); State v. Moss, 727 S.W.2d
229, 236 (Tenn. 1986); State v. Taylor, 744 S.W.2d 919 (Tenn. Crim. App. 1987)); see
T.C.A. § 40-35-102 (2014).

Likewise, a trial court‟s application of enhancement and mitigating factors is reviewed
for an abuse of discretion with “a presumption of reasonableness to within-range sentencing
decisions that reflect a proper application of the purposes and principles of our Sentencing
Act.” Bise, 380 S.W.3d at 706-07. “[A] trial court‟s misapplication of an enhancement or
mitigating factor does not invalidate the sentence imposed unless the trial court wholly
departed from the 1989 Act, as amended in 2005.” Id. at 706. “So long as there are other
reasons consistent with the purposes and principles of sentencing, as provided by statute, a
sentence imposed . . . within the appropriate range” will be upheld on appeal. Id.

At the sentencing hearing, the presentence report was received as an exhibit. The
report reflects that the Defendant had no previous criminal convictions. However, at the time
of the presentence investigation, an outstanding warrant existed for the Defendant‟s arrest
from Boone County, Kentucky. The report states that the Defendant was charged with
receiving stolen property valued at less than $10,000, that the offense occurred while the
Defendant was released on bond for the present offenses, and that the Defendant failed to
appear in the Boone County court.

The presentence report reflects that the Defendant completed vocational certification
programs while attending high school and received a special education diploma. Anderson
County School System records indicated that the Defendant was “in the borderline range of

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intellectual ability” on January 29, 2002. Although the Defendant was found competent to
stand trial, he reported that his disability was related to comprehension and that he had
difficulty understanding people when they used unfamiliar words, spoke fast, or spoke loud.
The Defendant reported that he did not understand Ms. Powell and was confused and that
“they were yelling at me.”

The Defendant reported depression, which began at the time of his arrest in the
present case. He stated that he previously attempted suicide by hanging when he was age
fourteen but that his sister found him. He admitted he had contemplated suicide since his
incarceration. The Defendant reported that he was estranged from his father and said he
harbored feelings of rejection, loss, grief, and being unwanted and unimportant. The
Defendant reported a fair relationship with his mother and recalled spending time in his
bedroom to escape arguments with his stepfather. The Defendant reported a good
relationship with his paternal grandfather and stepgrandmother and said if he were separated
from his grandfather and stepgrandmother, he intended to commit suicide.

The psychosexual evaluation report reflects that although the Defendant admitted
during his police interview to striking A.F. with a belt and a fly swatter and penetrating her
vagina with his finger, he denied any wrongful conduct during the psychosexual evaluation.
The evaluator found that the Defendant had no remorse for his conduct and that the
Defendant communicated in an evasive manner during the evaluation. Although the
evaluator was unable to determine whether the Defendant was a “true pedophile” or an
opportunist, the evaluator concluded that the Defendant needed the most restrictive
supervision to prevent recidivism.

The Defendant provided a statement during the presentence investigation in which he
denied any wrongdoing and said his admission to the police was “invalid because he did not
understand the legal process” and because his statements were “twisted” and “turned on
him.” The Defendant denied hurting the children and knowing the extent of their injuries
until he spoke to the victims‟ mother at the hospital. He said that Ms. Powell yelled at him
and forced him to say he hurt the children. The Defendant said he told Ms. Powell
“something so she would stop yelling.” He said that the victims‟ mother was dating other
men, that he thought one of the men might have been responsible for the victims‟ injuries,
and that the victims‟ mother was lying to protect the man responsible. The Defendant also
thought the victims‟ mother might have been responsible for the victims‟ injuries. He
recalled the victims‟ mother leaving the children alone in the bathtub and leaving the children
home alone on previous occasions.

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 The victims‟ father provided a victim impact statement. In the statement, he said that
B.F. was too young to recall the events but that A.F. remembered the abuse. The victims‟
father said A.F. was scared to be alone, had nightmares, and developed a fear of hospitals,
physicians, and men. He said that two weeks after the children came to live with him in
Maryland, A.F. still had bruises on her back. He said that although A.F. was no longer
bleeding, she complained about pain in her vaginal area. The victims‟ father said that B.F.‟s
bruises had mostly healed. The victims‟ father said the children did not appear to have any
lasting physical conditions. He noted, though, that A.F. underwent counseling for more than
one year and was doing well at the time of the sentencing hearing. The victims‟ father
requested the maximum sentence.

Probation and Parole Officer Lynnia Pinkham prepared the Defendant‟s presentence
report and provided testimony consistent with the report. She said that the Defendant
discussed his admissions to Ms. Powell and Detective Alexander, that the Defendant said he
felt threatened and compelled to “make those statements,” that he did not understand the
accusations, and that he signed “things” without knowing what he was doing. Ms. Pinkham
said that the psychosexual evaluator concluded that although the Defendant had difficulty
with reading comprehension, he understood the questions asked of him. She said that the
Defendant did not appear confused when she interviewed him. She said that he answered her
questions, asked questions, and understood her responses to his questions.

On cross-examination, Ms. Pinkham testified that the Defendant was cooperative
with her investigation. She said the Defendant stated he loved the children, although he did
not feel comfortable caring for them alone. She agreed the Defendant believed the victims‟
mother “trapped” him into caring for the children on the day of the incident. Ms. Pinkham
agreed the Defendant‟s mother did not provide Ms. Pinkham with a statement. Ms. Pinkham
agreed the psychosexual evaluator could not determine whether the Defendant was an
opportunist or a pedophile because of the Defendant‟s evasiveness and deception during the
evaluation.

The Defendant testified that he was innocent and did not hurt the victims. He said that
he saw the children two or three times per day for more than one year and that he had a good
relationship with them. He said he treated the children as though they were his children. He
said that he was nineteen and had recently graduated from high school when he and the
victims‟ mother began a romantic relationship and that the victims‟ mother asked him to care
for the children multiple times when she needed childcare. He said he was uncomfortable
caring for the children alone because he did not have children and had no parenting skills.

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 The Defendant testified that he moved to Kentucky to live with his grandfather when
his relationship with the victims‟ mother ended, that he received a request to return to
Tennessee to retake a “Gateway” test at his high school, that school officials said he failed
the test, and that he returned to retake the test. He said that the day before the incident, the
victim‟s mother called him requesting he come to her home. He said that the victims‟ mother
wanted to reconcile, that he went to the home, and that the victims‟ mother asked him to care
for the children the next day while she worked. He said that he told the victims‟ mother that
he would not watch the children, that he fell asleep, and that when he awoke, the victims‟
mother had gone to work. He said the children were still asleep.

The Defendant acknowledged that the trial court denied his motion to suppress the
statement he provided to Detective Alexander and said that he gave a statement because he
was scared and did not know what was happening. He said, though, he was cooperative and
truthful during his interview. Relative to the psychosexual evaluation, he said he was truthful
and answered all the questions during the evaluation.

The Defendant testified that he was “disheartened” by what the victims experienced
and said he understood the victims‟ father‟s feelings about what the children suffered. The
Defendant, though, maintained his innocence and said he rejected a plea offer for a shorter
sentence because he was innocent.

On cross-examination, the Defendant testified that he had the opportunity to tell the
trial judge at the suppression hearing that his police statement was coerced and that he did
not understand what was happening. He agreed nobody told him what to tell Detective
Alexander. Relative to his demonstrating during his police interview how he penetrated
A.F.‟s vagina with his finger, he asserted his right against self-incrimination when asked if
anyone told him how to demonstrate his conduct.

The Defendant testified that he moved to Kentucky in May 2009 and that he did not
see the victims again until the incident. He said that he had lived with the victims and their
mother before he graduated from high school and moved to Kentucky after graduation. He
agreed this portion of the timeline was not included in his written or audio recorded
statements. The Defendant did not recall telling the presentence investigator that he met
Detective Alexander at the hospital but said he first met the detective at the police station.
He did not recall the detective‟s reviewing the waiver of rights form with him.

Alicia Pence, the Defendant‟s older sister, testified that before she graduated from
high school in 2004, she and the Defendant lived together with their remaining siblings. She
said that she and the Defendant were close and that she was a mother figure to the Defendant.
She said that the Defendant occasionally babysat their younger sister and that she never

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observed anything inappropriate. She said that the Defendant had a learning disability, took
special education classes in high school, and needed repetitive explanations for simple tasks.

Chelsea Miller, the Defendant‟s younger sister, testified that before the Defendant was
incarcerated, he lived with her, their mother, and Ms. Miller‟s father. Ms. Miller said the
Defendant was her best friend, and they had a good relationship. She said that the Defendant
had babysat and had been around young children frequently and that she had never seen the
Defendant behave inappropriately with anyone.

Tammy Moore testified that she had known the Defendant since he was age seven and
that the Defendant had been a student on the school bus she drove. She said the Defendant
rode her school bus in middle and high schools. She recalled that the Defendant was one of
the best students on her bus and that he assisted her periodically. She said that the Defendant
never caused disruptions and that the Defendant always helped prevent problems between
students. She said the students on her bus ranged from kindergarteners to high school
seniors. She said the Defendant interacted with all the students on the bus and was a role
model for some students. She said that she never saw the Defendant behave inappropriately
with another student and that she would have disciplined the Defendant had she seen
inappropriate conduct.

Patricia Gifford, the Defendant‟s aunt, testified that she lived next door to the
Defendant‟s mother‟s home and that her children grew up with the Defendant and his
siblings. She said the Defendant was an obedient, cooperative, polite, and helpful child. She
never saw the Defendant act inappropriately with anyone. On cross-examination, Ms.
Gifford testified that although she knew the Defendant had difficulty in school, she was
unaware of the Defendant‟s depression.

Sharon Vanhuss testified that the Defendant and her son had been good friends for
five or six years, that they were neighbors, and that they had attended the same schools. She
said the Defendant visited her home multiple times per week. She noted that her younger
daughter was in the home when the Defendant visited. She said that she never had concerns
about the Defendant‟s being around her daughter and never saw anything inappropriate. She
believed the Defendant was innocent.

The trial court imposed an effective sixty-year sentence. Relative to the aggravated
rape of a child conviction, the court sentenced the Defendant as a Range III offender
pursuant to statute and imposed a sixty-year sentence. See T.C.A. § 39-13-531(b). The court
sentenced the Defendant as Range I offender to twenty-five years for aggravated child abuse
and to two years for child abuse. In determining the sentences, the court noted its
consideration of the principles and purposes of sentencing, the presentence report, the

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evidence presented at the suppression hearing, the trial, and the sentencing hearing, and the
statistical information relative to the offenses.

The trial court noted its previous findings from the suppression hearing that the
Defendant spoke to the police voluntarily and was not forced or coerced to provide a
statement. The court discredited the Defendant‟s sentencing hearing testimony in its entirety
and noted the Defendant‟s invoking his Fifth Amendment right against self-incrimination
when questioned about his penetrating A.F.‟s vagina. The court noted that the Defendant‟s
denying any wrongdoing during his sentencing testimony and the presentence investigation
was inconsistent with his police statement in which he admitted to striking A.F. with a belt
and a fly swatter and to inserting his finger in A.F.‟s vagina. The court also noted the
Defendant‟s blaming the victims‟ injuries on others during the presentence investigation and
found that the Defendant took no responsibility for his conduct and had no remorse.

The trial court stated it was concerned about the psychosexual evaluator‟s conclusion
that the Defendant “communicated in an evasive manner” and “took great pains to be
deceptive and unclear about himself as a psychosexual person.” The court noted that the
Defendant‟s psychiatric symptomology denoted some paranoia but found that his intelligence
was intact, although possibly slightly below average. The court credited the evaluator‟s
conclusions and found that the Defendant needed the most restrictive supervision possible to
prevent future similar criminal conduct.

Relative to the victims, the trial court found that B.F. did not recall the incident but
that A.F. remembered the abuse, was scared to go anywhere after the father obtained custody,
had nightmares and woke up screaming, and was scared of men, physicians, and hospitals.
The court found that A.F. had eight black and blue welts on the side of her body when she
went to live with her father. The court found that the injury to the vagina caused the
bleeding.

Relative to mitigating factors, the trial court found that none applied. The court
refused to apply factor (6) because the Defendant‟s age “had nothing to do with it.” See id. §
40-35-113(6) (“The defendant, because of youth . . . , lacked substantial judgment in
committing the offense[.]”). The court noted that although the defense witnesses were
credible, sexual offenses were not usually committed in public or in the presence of other
people well known to a defendant. The court found that the witnesses could not help the
Defendant simply because they never saw the Defendant behave inappropriately.

Relative to enhancement factors, the court found that factor (4) applied to each
conviction because the victims were ages one and three. The court noted B.F. was not old
enough to talk and that both victims were still wearing diapers. See T.C.A. § 40-35-114(4)

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(“A victim of the offense was particularly vulnerable because of age[.]”). The court found
that factor (5) applied to the aggravated rape of a child and aggravated child abuse
convictions and noted its previous discussion about A.F.‟s injuries. See id. § 40-35-114(5)
(“The defendant treated . . . a victim . . . with exceptional cruelty during the commission of
the offense[.]”). Although the court initially applied factor (6) to the aggravated rape of a
child and aggravated child abuse convictions because of the injuries sustained, the prosecutor
reminded the court that factor (6) could not apply to the aggravated child abuse conviction
because of the elements of the offense. The court agreed and applied factor (6) only to the
aggravated rape of a child conviction based on A.F.‟s injuries. See id. § 40-35-114(6) (“The
personal injuries inflicted upon . . . the victim was particularly great.”). The court found that
factor (14) applied to each conviction because the Defendant‟s position of trust as a
babysitter significantly facilitated the commission of the offenses. See id. § 40-35-114(14)
(“The defendant abused a position of . . . private trust . . . in a manner that significantly
facilitated the commission or the fulfillment of the offense.”). The court noted that the
Defendant, if he were to be believed, considered the victims as his own children. The court
found that although “reason and common sense” show that the Defendant committed the
aggravated rape of a child for sexual gratification, no proof was presented. See id. § 40-35-
114(7) (“The offense involved a victim and was committed to gratify the defendant‟s desire
for pleasure or excitement[.]”).

The trial court found that confinement was necessary to avoid depreciating the
seriousness of the offenses and to serve as a deterrent to others likely to commit similar
offenses. The court found that the Defendant could not be rehabilitated. The court noted that
the Defendant denied any wrongdoing, had lied, and was deceptive during the psychosexual
evaluation. The court found that the Defendant refused to take responsibility for his conduct.
Although the court found that the Defendant did not have a previous criminal history, it also
found that the lack of previous criminal conduct did not “help him much.”

The Defendant argues that the trial court erred by applying enhancement factor (4)
regarding the vulnerability of the age of the victim. The Defendant argues the victim‟s age
was an element of the aggravated rape of a child conviction and that application of factor (4)
was improper. Our supreme court has concluded that “although age is an element of . . .
aggravated rape involving a child . . . , factor (4) may be used „if circumstances show that the
victim, because of [the victim‟s] age or physical or mental condition, was in fact, particularly
vulnerable.‟” State v. Kissinger, 922 S.W.2d 482, 487 (Tenn. 1996) (quoting State v. Adams,
864 S.W.2d 31, 35 (Tenn. 1993)). The court explained that factor (4) may be used to
enhance a sentence “when a victim‟s natural physical and mental limitations renders the
victim particularly vulnerable for his or her age because of an inability to resist, a difficulty
in calling for help, or a difficulty in testifying against the perpetrator.” Kissinger, 922
S.W.2d at 487.

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 The record reflects that A.F. was age three at the time of the offenses. At the trial,
A.F. identified her buttocks and vaginal area on an anatomical drawing and said the areas
were for bad touches. She did not want to discuss bad touches because she was scared and
refused to answer any further questions. As a result, she had difficulty in testifying against
the Defendant. Although the Defendant does not challenge his child abuse sentence, we note
B.F. was unable to testify because he was unable to communicate what occurred during the
offenses as a result of his age. B.F. was approximately eighteen months old and confined to
a crib at the time of the incident. A.F. and B.F. were the only individuals present when the
Defendant committed the offenses, which created an inability to resist the Defendant. A.F.
was also physically limited in resisting the Defendant, calling for help, and ending the abuse
because of her size. The victims were small children and any attempts to resist an adult male
were futile. We conclude that the trial court did not err by applying enhancement factor (4).

The Defendant also argues no evidence supports the trial court‟s finding that he could
not be rehabilitated. We disagree. The record reflects that the Defendant admitted to Ms.
Powell and Detective Alexander that he struck A.F. with a fly swatter and a belt and that he
penetrated her vagina with his finger. However, the Defendant denied any wrongdoing at the
time of the sentencing hearing. After having heard the proof at the trial, the trial court
discredited the Defendant‟s sentencing hearing testimony and noted that the Defendant
asserted his Fifth Amendment right against self-incrimination when questioned about his
penetrating A.F.‟s vagina. The psychosexual evaluation reflects that the Defendant
“communicated in an evasive manner” and “took great pains to be deceptive and unclear
about himself as a psychosexual person.” The evaluator concluded that the Defendant had no
remorse for his conduct. Although the evaluator was unable to determine if the Defendant
was a “true pedophile,” the evaluator concluded that the Defendant needed the most
restrictive supervision to prevent recidivism. Furthermore, after the trial, the Defendant
blamed the victims‟ mother and an unknown man for the victims‟ injuries. The record
supports the trial court‟s finding that the Defendant took no responsibility for his actions and
that he had no remorse for his conduct. The court‟s finding that the Defendant could not be
rehabilitated was based on the Defendant‟s failure to take responsibility for his conduct, his
deceit during the psychosexual evaluation, and his lack of candor during his sentencing
hearing testimony. The court did not err by finding that the Defendant was incapable of
rehabilitation.

Finally, the Defendant argues that the trial court erred by relying on depreciating the
seriousness of the offense and deterrence in imposing the maximum sentence for the
aggravated rape of a child conviction. The record reflects that the court considered statistical
information available for the offenses. The court relied heavily in its sentencing
determinations on the nature of the offenses, the Defendant‟s breach of private trust, the
Defendant‟s lack of candor during the presentence investigation and at the sentencing

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hearing, and the psychosexual evaluator‟s conclusions and recommendations. The Defendant
received a within-range sentence for a Class A felony, and the record reflects that the trial
court complied with the purposes and principles of sentencing. The court properly applied
four enhancement factors to the aggravated rape of a child conviction. We note that A.F.
suffered two hemorrhages and two tears along the posterior portion of the hymen, which
were visible to the naked eye. The trial court did not abuse its discretion by imposing a sixty-
year sentence. The Defendant is not entitled to relief on this basis.

VII

Cumulative Error

The Defendant contends that the errors raised in this appeal create cumulative error
that entitles him to a new trial. However, the evidence is sufficient to support the
Defendant‟s conviction, and the trial court did not err during the trial or the sentencing
hearing. Without multiple errors, no cumulative error claim is possible. The Defendant is
not entitled to relief on this basis.

In consideration of the foregoing and the record as a whole, we affirm the judgments
of the trial court.

_____________________________________
ROBERT H. MONTGOMERY, JR., JUDGE

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