STATE OF TENNESSEE v. TANDY TOMLIN

04/13/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs March 18, 2020

STATE OF TENNESSEE v. TANDY TOMLIN

Appeal from the Circuit Court for Rutherford County
No. F-78021 Royce Taylor, Judge
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No. M2019-00274-CCA-R3-CD
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The Appellant, Tandy Tomlin, was convicted by a Rutherford County Circuit Court Jury
of eight counts of rape of a child, two counts of aggravated sexual battery, one count of
solicitation to commit rape of a child, and one count of solicitation to commit aggravated
sexual battery. The trial court merged two of the rape of a child convictions and sentenced
the Appellant to consecutive sentences of thirty years for each rape of a child conviction,
ten years for each aggravated sexual battery conviction, ten years for the solicitation of
rape of a child conviction, and five years for the solicitation of aggravated sexual battery
conviction, for a total effective sentence of 245 years. On appeal, the Appellant contends
that the evidence was insufficient to sustain his convictions, that the trial court erred in
sentencing, and that his right to a fair trial was violated when he was escorted into the
courtroom through a security door by a uniformed officer in view of the jury pool. Upon
review, we conclude that the State adduced insufficient evidence to sustain the Appellant’s
conviction of rape of a child in count 7 and reduce the conviction to aggravated sexual
battery with an accompanying sentence of ten years to be served consecutively to the
remaining sentences. The trial court’s judgments are affirmed in all other respects.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed in
Part; Reversed in Part; Case Remanded.

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER and D. KELLY THOMAS, JR., JJ., joined.

Michael Auffinger, Murfreesboro, Tennessee, for the Appellant, Tandy Tomlin.

Herbert H. Slatery III, Attorney General and Reporter; Robert W. Wilson, Assistant
Attorney General; Jennings H. Jones, District Attorney General; and Hugh Ammerman,
Assistant District Attorney General, for the Appellee, State of Tennessee.
 OPINION

I. Factual Background

On August 9, 2017, the Appellant was charged with nine counts of rape of a child,
one count of aggravated sexual battery, one count of solicitation of rape of a child, and one
count of solicitation of aggravated sexual battery. The victim, who was twelve years old
at the time of the offenses, was the daughter of the Appellant’s first cousin.

At trial, the victim testified that her date of birth was July 6, 2000. The victim said
that in the fall of 2012 and early 2013, she was living with her father; her father’s girlfriend,
whom the victim referred to as her “stepmother” (hereinafter “stepmother”); her two
brothers; her stepmother’s two sons (hereinafter “stepbrothers”); and the Appellant in a
three-bedroom mobile home in the area of Barfield Road and Veterans Parkway in
Murfreesboro. Initially, the victim’s parents shared the master bedroom; her brothers
shared the second bedroom; her stepbrothers shared the third bedroom, which had bunk
beds; the victim slept on the couch in the living room; and the Appellant slept on the living
room floor. Later, the stepmother went to jail, and her mother (hereinafter
“stepgrandmother”) moved into the mobile home to take care of the stepmother’s sons.
Thereafter, the victim, her stepgrandmother, and one of her stepbrothers shared the
bedroom with bunk beds. The other brothers shared the third bedroom. The victim’s father
remained in the master bedroom, and the Appellant slept in the living room.

The victim said that the household was “chaotic,” but the Appellant “was nice to
everybody.” The victim was close to her stepmother but did not get along well with her
stepgrandmother. While the Appellant lived there, he worked during the day and got home
around 4:30 or 5:00 p.m. The victim said that her father was a painter, that he owned his
own company, and that he was often gone on weekends. The Appellant was “kind of in
charge” when the victim’s father was gone, and the victim had more interaction with the
Appellant than with her stepgrandmother.

The victim said that the Appellant gave her a cell phone but later took it away from
her. The Appellant bought skates for the victim and one of her brothers. The victim’s
skates were “custom made,” but her brother’s skates were “basic.” The Appellant also
bought the victim a hoodie and some other clothes; however, other than the skates, he did
not buy gifts for her brothers. For Halloween, the Appellant bought the victim “a black
and white one piece kind of like a lingerie Halloween [cat] costume,” and he took the victim
and some friends to a haunted house. The victim did not wear the cat costume because her
stepgrandmother had found it and thrown it away.

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 The victim said that the Appellant sometimes took the cell phone away from her.
One morning, she awoke and discovered that the Appellant had ripped the hoodie and
thrown it on her bed. The Appellant told her that he had ripped the hoodie because she had
the telephone number of a boy her age.

The victim said that the Appellant had a red four-door sedan with cloth interior and
that he drove the victim to the store to get “Flaming Hot Cheetos” or sunflower seeds, to
the park, and “to dead ends” of roads. When the stepmother was living at home, she
ensured that the Appellant also took the victim’s brothers when they went somewhere in
his car. After the stepmother went to jail, the Appellant drove the victim places alone.

The victim said that normally she was not allowed to go anywhere and that she was
not allowed to have anyone visit the mobile home. After her stepmother went to jail, the
Appellant allowed her to go to different places and to have her friends visit when her father
was at work. The victim also “did stuff that [the Appellant] asked [her] to do.” If the
victim refused any of the Appellant’s requests, he threatened to tell her father that the
victim had friends come over.

The victim said that the first time the Appellant touched her inappropriately, they
were outside the mobile home, it was dark, “everybody” was playing hide and seek, and
the Appellant was “it.” The victim was hiding in a bush when the Appellant came up to
her, slipped his hand inside the waistband of her yoga pants, touched her vagina, and moved
his hand around.

The victim said that the first time the Appellant put his penis inside her vagina, they
were in the living room of the mobile home. The victim said that she and the Appellant
were home alone during the daytime and that they were sitting on the couch watching
television. The Appellant started touching her and told her, “[Y]ou will be rewarded for
this later.” The victim lay on her back on the couch, and the Appellant lay on top of her.
The victim’s shirt was on, and her pants and panties were around her ankles. The
Appellant’s shirt was on, and his pants and boxers were around his ankles. The Appellant
penetrated her vagina with his hands then penetrated her vagina with his penis. The victim
said that “[i]t hurt.” One of the victim’s brothers came home and discovered that the front
door, which led directly into the living room, was locked. Her brother knocked on the
door. The victim told the Appellant to stop, and the Appellant stopped. When the
Appellant opened the door, and her brother asked why he did not open the door earlier.
The Appellant said, “[B]ecause I was just playing around with you.”

The victim said that her stepmother was not in jail at the time of the first two
offenses, but she was in jail when later offenses occurred away from the mobile home. The
victim recalled that on one occasion around 6:00 or 7:00 p.m. when it was almost dark
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outside, the Appellant drove the victim to Barfield Park. He parked the car and then
reached toward the victim, who was sitting in the front passenger seat. The Appellant stuck
his hands inside her jeans and put his fingers inside her vagina. The victim said that
Barfield Park was a big park with several parking lots, a baseball field, and “stands that
[have] – tables and stuff up under them where you can have like birthday parties and stuff.”
The victim had gone to the park on other occasions, and the Appellant let her drive his car
around in circles. The Appellant did not let anyone else drive his car.

The victim recalled that Lawrence Street was located a short drive from her house.
On two separate occasions when it was dark outside, the Appellant drove the victim to the
dead end of Lawrence Street and parked the car. He asked the victim to get into the back
seat, she complied, and the Appellant then penetrated her vagina with his penis. The victim
never saw anyone else at Lawrence Street. Each time, the Appellant and the victim stayed
at Lawrence Street for thirty or thirty-five minutes.

The victim said that on multiple occasions, the Appellant took her to the dead end
of Suzanne Street. On one occasion, the Appellant “touched [her] with his fingers,” and
he penetrated her vagina with his penis. On another occasion, he penetrated her vagina
with his penis. The third time, “he touched [her] with his fingers.” He asked her to perform
oral sex on him, but she refused.

The victim said that the last time the Appellant touched her inappropriately was
approximately a week to three weeks before her stepmother was released from jail. The
Appellant tried to touch the victim again after her stepmother was released, but she told
him no. The victim said that she had told him no on other occasions, and the Appellant
“would take [her] stuff.” The victim stated that she usually got along with the Appellant
but that there was “tension” between them when she “would tell him no and he would take
[her] stuff.” The victim said that she would get angry and would hit the Appellant. The
victim explained that she hit the Appellant “[b]ecause I was tired of him touching me. And
if I wouldn’t let him touch me, then he would take my stuff. He would rip my clothes up
and break my phone. He wouldn’t let me drive and everything.”

The victim said that on one occasion, she was sending text messages to a boy from
school. The Appellant saw the text messages and told her to give him the cell phone. The
victim refused and ran out the door into the street. When the Appellant ran after her, she
threw the telephone onto the concrete, and the telephone “busted.”

The victim said that after the last time the Appellant touched her inappropriately, he
asked if she wanted him to drive her to the store to get Cheetos and sunflower seeds. The
victim said no. The Appellant responded, “[O]kay, well, I’m about to take everything back
that I got you.” The victim replied, “I don’t care. I don’t want you to touch me anymore.”
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The victim’s reply made the Appellant angry, and he said that she would regret her
decision.

The victim said that the Appellant never wore a condom. She recalled that “[h]e
would lick his hand and touch his penis” before touching her with his penis. The victim
said that she had seen semen come out of the Appellant’s penis and that sometimes it went
onto his car seats and once went onto the victim’s pajama pants. The victim said that on
one occasion when they were at the dead end of Lawrence Street, the Appellant “asked me
if I could jack him off,” meaning to touch his penis with her hands until he ejaculated. The
victim refused.

The victim remembered that on one occasion before her stepmother went to jail, the
Appellant was sitting on the couch, and the victim was “straddl[ing]” his legs and “play
wrestling” with him. Her stepmother came into the living room and made the victim go
into another room with her. She told the victim, “[I]t’s not appropriate for a young lady to
be sitting on him like that. I don’t ever want to see you sit on a man like that again.” The
victim recalled that her stepgrandmother “walked into the bedroom when [the victim and
the Appellant] were play fighting one time. And [the Appellant] had [the victim] like kind
of bend over on the bed with his hands on [her] breasts.”

The victim said that while her stepmother was in jail, her stepmother discovered that
the victim had hit the Appellant. Her stepmother called the victim and asked “what was
going on between” the victim and the Appellant. The victim, knowing her stepmother
would be coming home soon, told her stepmother they would talk when she got home. The
victim also told her stepmother that she wanted the Appellant in jail.

The victim said that after her stepmother returned home from jail, she noticed that
the victim was acting differently. Her stepmother asked the victim what she wanted to say
about the Appellant. The victim told her stepmother everything the Appellant had done.
The victim was in her parents’ bedroom when her stepmother told the victim’s father what
the Appellant had done. The victim’s father was angry and wanted to hurt the Appellant.
The stepmother prevented the victim’s father from leaving and closed the bedroom door.
The victim slept in her parents’ bedroom that night.

The victim said that the next morning, her father went into the living room, sat on
the couch beside the Appellant, and asked if the Appellant had touched the victim
inappropriately. The Appellant responded, “[N]o, she’s lying. I would never do that, Cuz.”
The victim’s father told the Appellant that the victim would not “lie about something like
that. And the details that she has told us, there is no way she knew about unless it actually
happened.” The victim’s father told the Appellant to leave, they would pack the
Appellant’s belongings and put them in his car, and he should not come around the family.
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 The victim recalled that the Appellant kept his belongings in the living room inside
three or four “little rolly, tall tote things that had drawers in them.” As the victim and her
parents packed the Appellant’s belongings, they found several things belonging to the
victim, such as her panties and “little knickknack stuff.”

The victim said that after she told her parents about the Appellant, she told her
“sister,” Vanessa.1 Vanessa’s grandmother, Elizabeth Baggett, told the victim that Vanessa
had told her about the incidents. Baggett said the victim could talk with her, but the victim
responded that she did not want to talk.

The victim said she told everyone that she did not want the police to be contacted.
However, in October 2013, approximately nine or ten months after the last offense, she
gave a statement at the Child Advocacy Center (CAC). The victim acknowledged that she
was almost eighteen years old at the time of trial and was more “sophisticated” than she
was at the time of the offenses. The victim explained that when the Appellant first put his
hand inside her pants, she “didn’t know what to think. I knew it wasn’t normal. But I
didn’t know if I should tell anybody or not.” The victim feared that if she told her father
or stepgrandmother, her father would do something and be sent to jail. At the time, her
stepmother was in jail, and the victim did not want to be without both of her parents.

The victim said:

I dreaded doing [sexual acts with the Appellant]. But a
lot of my friends that I went to school with were rich. And my
dad was poor. And I didn’t really have anything. So, having a
cell phone at that time was like a big deal in school. And going
skating, like getting your own – having your own pair of skates
was big deal.

And, basically, everything that he had bought me was a
big deal to me because I had never had it, never had a chance
to get it.

On cross-examination, the victim said that the mobile home was a “single wide.”
The victim stated that the park closed at dark and that the gate was closed. She clarified
that the Barfield Park offense occurred “about sun down.” She estimated that she and the
Appellant stayed at the park for approximately fifteen or twenty minutes. When she and

1
Because two individuals in the case have the same surname, we will refer to them by their first
name. No disrespect is meant to these individuals.
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the Appellant went to the park, he told “anyone home” that they were going to the park.
The victim said that it was not common for them “to go hang out at the park.” They went
to the park only two other times, and on those occasions, the Appellant took one of the
brothers with them.

Regarding the incidents at the dead end of Lawrence Street, the victim said that
before she and the Appellant left, the Appellant told the people who were at home that he
and the victim were going to her friend Nina’s house. The Appellant and the victim were
gone for approximately thirty minutes. On another occasion, the Appellant took the victim
to the dead end of Suzette Street after they “dropped [her] friend Nina off.” The victim
said the offenses usually happened during the week.

On redirect examination, the victim said that it was not completely dark when the
Appellant took her to Barfield Park. However, during the game of hide and seek and when
the offenses on the dead end streets occurred, it was completely dark. The victim explained
that Nina came over during the week to help the victim with her homework. The victim’s
father was at work when the Appellant took the victim to Barfield Park, Lawrence Street,
and Suzanne Street. The victim said that her father routinely worked late in the evening;
however, when he was at home and asked why the victim was leaving the house, the victim
and the Appellant said that they were taking Nina home. The victim said that after they
left Nina’s house, the Appellant usually took the victim to one of the dead end streets. The
Appellant let the victim know what he wanted “[w]hen he parked the car and said that we
were going to do something.” He promised to reward her for it later.

The stepgrandmother testified that the last week of September or the first week of
October 2012, she moved into her daughter’s mobile home to take care of the children
while her daughter was incarcerated. The stepgrandmother said that the father was the
stepmother’s “long time” boyfriend. The stepgrandmother was “kind of like grandma” to
the victim and her brothers, but the stepgrandmother did not “think they accepted” her.
She explained, “They more or less let me know that I had no responsibility towards them.
And they didn’t have to answer to me.”

The stepgrandmother said the mobile home had two bedrooms. The master
bedroom and master bathroom were on one end of the home, and the second bedroom was
on the other end. A second bathroom was “down the hallway.” The home had a kitchen
and a living room, which was used as a third bedroom. While the stepmother was in jail,
the father and his two sons slept in the master bedroom, and the victim, the
stepgrandmother, and one of the stepbrothers slept in the other bedroom. A stepbrother
and the Appellant slept on the two sofas in the living room. The stepgrandmother stated
that the Appellant was the father’s first cousin and that the Appellant was living in the

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mobile home to babysit the children when the father was not at home. The stepgrandmother
thought the Appellant paid rent to the victim’s father.

The stepgrandmother said that she was not concerned with how the Appellant, who
she thought was in his 30’s, interacted with the boys but that she was concerned with how
he interacted with the victim. She said, “I knew the relationship was not right. It was not
. . . a grown male relative towards a child, a female child. It was different.” The
stepgrandmother said that initially, she thought the relationship between the Appellant and
the victim was a “little deeper really than friends.” The Appellant and the victim chased
each other through the house with squirt bottles full of water and sometimes wrestled on
the beds.

The stepgrandmother described another incident:

[The stepgrandmother:] There was one day in particular when
I followed them into our bedroom, mine and [the victim’s]
bedroom. And I saw [the victim] -- they were standing. And
[the victim] was bent over and [the Appellant] was bent over
her back leaning into her with his hands folded across her
breasts with his hands. And she had her hands crossed over his
arms.

[The State:] And, so, where were his hands in relation to her
breasts?

[The stepgrandmother:] Cupped right over the breasts.

[The State:] And where was his -- where was his genitalia in
relation to her genitalia?

[The stepgrandmother:] Well, he was like bent over her body.
Her body was so much smaller and shorter than his. He was
just bent over like hugging her. Like he was hugging her.

[The State:] And you saw this. And what did you do?

[The stepgrandmother:] When I walked in and saw it, my first
instinct was, I told them, get your hands off of that child’s
breasts. And they both jumped up. Just stepped aside from
each other. And [the victim] said, he wasn’t touching my
breasts.
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 The stepgrandmother said that the Appellant was often alone in the car with the
victim. The stepgrandmother explained that the Appellant would ask the victim to go to
the store with him. If the stepgrandmother or the boys asked to go, the Appellant would
say that he did not have enough room in his car for any of them. The stepgrandmother
acknowledged that the Appellant’s car was small and that he had a lot of “junk” in it.
However, she thought at least two or three additional people could have fit in the car.

The stepgrandmother said that sometimes the victim’s friends came to visit on the
weekends. The Appellant would pick up the victim’s friends, and he would take the victim
with him when he took her friends home. Afterward, “it took them quite a long time to
take all of the kids home and get back.” The stepgrandmother thought the Appellant’s
behavior was suspicious.

The stepgrandmother said that the victim’s father was “never around” and that he
told her the victim was to have “no kids at the trailer.” However, the Appellant told the
stepgrandmother that the father had given him permission to allow the friends to visit.
Later, the stepgrandmother confronted the father about the situation. The father “didn’t
say yay or nay. All he said was [the Appellant] shouldn’t have told you that.”

The stepgrandmother said that she was concerned about the gifts the Appellant
bought for the victim. She noted that for “Halloween he bought her this silky, black, sexy
outfit like for a bad girl with satin hose with the garter belt and the short shorts, and the
short silky top.” The stepgrandmother “got rid” of the outfit and told the father about it.
The stepgrandmother told the Appellant that the outfit was not appropriate for the twelve-
year-old victim. The Appellant did not respond.

The stepgrandmother recalled that at Christmas, the Appellant bought the victim a
ten-speed bicycle, but he did not buy presents for the other children. When the
stepgrandmother asked the Appellant about it, he said that he ran out of money. The
Appellant also bought the victim a pair of skates, which the stepgrandmother did not
understand because there was no place where the victim could skate unless the Appellant
took her to a skating rink.

The stepgrandmother said that one night she was alone with the Appellant, and he
was sitting “with his head hanging down[, and h]e was remorseful.” The Appellant seemed
guilty and was almost crying. He told the stepgrandmother “that he had an inappropriate
relationship with someone. And he knew it was wrong. But he couldn’t help it.” The
Appellant said that he thought about the person when he was going to sleep, when he was
waking up, and all day long at work. The Appellant denied that he was referring to the
victim and said that the victim was “dirty” and “stunk.” The stepgrandmother said that
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sometime after that conversation, the Appellant showed her a woman’s photograph on his
cell phone, and he told the stepgrandmother the woman was his girlfriend. The
stepgrandmother never saw the woman in the photograph “in real life,” and she never saw
the Appellant have regular interaction with other adults.

The stepgrandmother said that she asked the victim about her relationship with the
Appellant, but the victim denied anything inappropriate. The stepgrandmother tried to be
someone with whom the victim could “open up” but surmised that the victim “didn’t want
a relationship with me. And she would fight me.” The stepgrandmother said she got along
better with the Appellant than she did with the victim, that she “really liked” the Appellant,
and that she had no reason to lie about the Appellant.

The stepgrandmother said that she raised her concerns with the victim’s father, who
responded, “[N]ot my cuz. My cuz wouldn’t do that to me. My cuz wouldn’t do that to
my daughter.” The stepgrandmother told the school counselor of her concerns, but
Appellant and the victim denied that anything was happening.

The stepgrandmother said that the Appellant moved out of the mobile home soon
after the stepmother returned home. Later, the stepgrandmother learned that the victim had
told the stepmother what the Appellant had done to her. The stepmother informed the
father, and they made the Appellant leave. The stepgrandmother did not know the
Appellant had left until she saw that his belongings were not in the living room.

Elizabeth Baggett testified that her daughter, Lucinda, had dated the victim’s father
approximately thirty years ago and that he had fathered two of her children. At the time,
Lucinda had two other children, one of whom was Vanessa, and the children thought of
the victim’s father as a “father figure.” After the Appellant’s relationship with Lucinda
ended, the victim’s father had children of his own, including the victim. Although Vanessa
and the victim were different ages, “[t]hey were like sisters.” The victim referred to
Baggett as “Mamaw.”

Baggett said that she had never met the Appellant but that Vanessa told her about
some things that happened between the Appellant and the victim. Baggett learned from
Vanessa that the police had not been informed, and Baggett called the Department of
Children’s Services (DCS).

Kevin Smith testified that in September 2013, he was a Child Protective Services
(CPS) investigator. On September 12, 2013, Investigator Smith received a report regarding
the victim. Investigator Smith first spoke with the person who made the report, and then
he spoke with Vanessa. Later that day, Investigator Smith contacted the victim’s father,
who put Investigator Smith in touch with the victim. The victim gave Investigator Smith
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“[v]ery detailed, concerning information,” including a name and description of the
perpetrator.

Investigator Smith said that approximately one month later, the victim went to the
CAC where she was interviewed by a forensic investigator. Investigator Smith said that
the interview was conducted in a room that looked like a child’s bedroom. Inside the room
was “a closed circuit alarm clock which allows us who are sitting in another room to
observe and to also provide feedback if necessary for additional questions that we desire.”
Investigator Smith observed the victim’s interview. The information the victim gave
during the interview was consistent with the information she had given Investigator Smith.
He did not recall if the victim gave any additional details during her forensic interview.

Investigator Smith said that law enforcement became involved in the case in
September and that the last sexual contact between the Appellant and the victim was “on
or about approximately New Years.” Investigator Smith stated that a delayed disclosure
was not unusual for a victim in a sexual abuse case. However, given the delay, physical
evidence likely would have been lost, and any injuries would have been healed.

On cross-examination, Investigator Smith said that “the allegation – in layman’s
terms – it was substantiated as having occurred.” A determination was made that the victim
was no longer in danger because her parents “were protective” and were preventing any
contact between her and the Appellant.

The stepmother testified that her “significant other” was the victim’s father and that
she considered the victim to be her stepdaughter. The stepmother said that she and the
victim “g[o]t along” and that their relationship was “[v]ery strong.”

The stepmother acknowledged that she had prior convictions of attempted
aggravated burglary, conspiracy to commit aggravated robbery, sale or delivery of a
schedule III controlled substance, and misdemeanor theft. The stepmother said that she
was arrested on September 10, 2012, and was in custody on the robbery charge while most
of the instant offenses occurred. She was released on January 22, 2013.

The stepmother said that the Appellant moved into the mobile home approximately
five months before she went to jail. The mobile home had two bedrooms, and people
routinely slept in the living room. The stepmother said that everyone in the home got along
with the Appellant “for the most part.” The stepmother saw one incident between the
victim and the Appellant that concerned her. Specifically, she recalled seeing the victim
straddling the Appellant’s lap while the victim was “trying to crack the code” on the
Appellant’s cell phone. The stepmother made the victim go into the bedroom with her then
told the victim, “I don’t ever want to see you sitting on any kind of man like that ever
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again.” The victim returned to the living room, sat on the edge of the couch, and continued
to play with the Appellant’s cell phone.

The stepmother said that when she went to jail, the stepgrandmother moved into the
mobile home to help the father with the children. Approximately three or four days after
the stepmother returned home from jail, the Appellant “made a statement that he was in
love with a younger girl and she was perfect. And no one could amount to her. And she
was too young and he couldn’t ever say her name.” The stepmother asked if the victim
was the girl. The Appellant “paused and hesitated for a minute” and then he said the girl
was not the victim. However, the Appellant would not tell the stepmother a name.

The stepmother said that she never saw the Appellant have much of a social life.
She explained that he was either at home, at work, or at “the skating rink with the other
kids.” The stepmother recalled that the Appellant kept “Flaming Hot Cheetos and
sunflower seeds underneath his table” and that he “taunt[ed]” the victim with the items “to
make her want” them. The stepmother explained that a coffee table “was next to the couch
where [the Appellant] slept and where he kept his things. . . . It was a plastic tote with
three drawers in it.”

The stepmother said that approximately five days after she came home from jail, the
victim “was acting weird.” The stepmother took the victim into the stepmother’s bathroom
and asked if the victim was having sex. The victim said that she was not having sex “at
that time.” The stepmother asked if the victim had ever had sex, and the victim responded
yes. The stepmother asked with whom, and the victim eventually revealed it was with the
Appellant. The victim then told her stepmother what the Appellant had done to her. The
stepmother found the victim’s story especially believable when “[s]he said that he licked
his hand and put it on the head of his penis.” After speaking with the victim for about
twenty minutes, the stepmother asked the father to join them in the master bedroom.

After the father came into the room, the stepmother told him what the victim had
told her about the Appellant. The father stopped listening, grabbed a baseball bat, and tried
to leave the bedroom. The stepmother prevented him from leaving, and eventually, the
father calmed down.

The stepmother said that she and the father made the victim sleep in their bedroom
that night. The Appellant stayed in the living room. The next morning, the father went
into the living room, sat beside the Appellant, and said, “[Y]ou know what you did.” The
Appellant “started crying and said I didn’t do that, cuz. I didn’t do that, cuz.” The father
told the Appellant, “[Y]our stuff will be in your car. Don’t come back to this house.”

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 The stepmother said that when she, the victim, and the victim’s brothers were
packing the Appellant’s belongings, they found the victim’s “panties, shorts, hair brushes,
and some other odd and end stuff . . . in his drawers in the plastic tote.”

The stepmother said that the police were not immediately contacted because the
victim “just wanted to get it out of her mind. She didn’t want to keep bringing it up.” The
victim was having problems in school, and she did not want to talk about what had
happened to her.

The Appellant elected not to testify or put on proof. The jury found the Appellant
guilty of rape of a child, a Class A felony, as alleged in counts one through eight; guilty of
aggravated sexual battery, a Class B felony on counts nine and ten; guilty of solicitation to
commit rape of a child, a Class C felony on count eleven; and guilty of solicitation to
commit aggravated sexual battery, a Class D felony on count twelve.

At the sentencing hearing, the trial court merged counts four and five. The trial
court sentenced the Appellant to thirty years for each rape of a child conviction, ten years
for each aggravated sexual battery conviction, ten years for the solicitation of rape of a
child conviction, and five years for the solicitation of aggravated sexual battery conviction.
The trial court ordered all of the sentences to be served consecutively for a total effective
sentence of 245 years.

On appeal, the Appellant contends that the evidence was insufficient to sustain his
convictions, that the trial court erred in sentencing, and that his right to a fair trial was
violated when the Appellant was escorted into the courtroom “in full view of the entire jury
pool th[r]ough a locked security door under escort by uniformed law enforcement.”

II. Analysis

A. Sufficiency of the Evidence

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

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

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

As charged in this case, rape of a child is the unlawful sexual penetration of a victim
by a defendant if the victim is more than three years old but less than thirteen years old.
Tenn. Code Ann. § 39-13-522(a). “‘Sexual penetration’ means sexual intercourse . . . or
any other intrusion, however slight, of any part of a person’s body or of any object into the
genital or anal openings of the victim’s . . . body, but emission of semen is not required[.]”
Tenn. Code Ann. § 39-13-501(7). Aggravated sexual battery in this case is “unlawful
sexual contact with a victim by the defendant,” and the victim is less than thirteen years
old. Tenn. Code Ann. § 39-13-504(a)(4). “Sexual contact” is defined as “the intentional
touching of the victim’s . . . intimate parts . . . if that intentional touching can be reasonably
construed as being for the purpose of sexual arousal or gratification.” Tenn. Code Ann. §
39-13-501(6). Tennessee Code Annotated section 39-12-102 provides:

(a) Whoever, by means of oral, written or electronic
communication, directly or through another, intentionally
commands, requests or hires another to commit a criminal
offense, or attempts to command, request or hire another to
commit a criminal offense, with the intent that the criminal
offense be committed, is guilty of the offense of solicitation.

(b) It is no defense that the solicitation was unsuccessful and
the offense solicited was not committed. It is no defense that
the person solicited could not be guilty of the offense solicited,
due to insanity, minority, or other lack of criminal
responsibility or incapacity. It is no defense that the person
solicited was unaware of the criminal nature of the conduct
solicited. It is no defense that the person solicited is unable to
commit the offense solicited because of the lack of capacity,
status, or characteristic needed to commit the offense solicited,

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 so long as the person soliciting or the person solicited believes
that either or both have such capacity, status, or characteristic.

On count one, rape of a child, the State elected the “digital penetration of the victim
by the [Appellant] on the couch in the living room.” On count two, rape of a child, the
State elected the “penile, genital penetration of the victim by the [Appellant] on the couch
in the living room.” Regarding those counts, the victim testified that she and the Appellant
were the only ones at home. They were sitting on the couch in the living room when the
Appellant started touching her, and he promised that she would “be rewarded for this later.”
The victim lay on her back on the couch with her shirt on and her pants and underwear
down. The Appellant lay on top of the victim with his shirt on and his pants and underwear
down. The Appellant penetrated her vagina with his hands, which was sufficient to sustain
his conviction in count one. Regarding count two, the victim testified that the Appellant
penetrated her vagina with his penis, which was sufficient to sustain his conviction of rape
of a child.

On count three, rape of a child, the State elected the “digital genital penetration of
the victim by the [Appellant] while parked at Barfield Park in the [Appellant’s] car when
it was almost dark outside.” The victim testified that on one occasion around 6:00 or 7:00
p.m. when it was almost dark outside, the Appellant drove her to Barfield Park, parked his
car, stuck his hands into the victim’s jeans, and put his fingers inside her vagina. The
victim’s testimony is sufficient to sustain the conviction in count three.

Count four charged the Appellant with rape of a child, and the State elected “the
first of just two separate incidents of penile, genital penetration of the victim by the
[Appellant] in his car parked at the dead end of Lawrence, which was the first time the
[Appellant] had ever taken the victim to park at a dead end.” Count five charged the
Appellant with rape of a child, and the State elected the “second of these two separate
incidents penile, genital penetration of the victim by the [Appellant] in his car parked at
the dead end of Lawrence.” The victim testified that on two separate occasions, the
Appellant drove her to the dead end of Lawrence Street. He parked, had the victim get into
the backseat of his car, and then he penetrated her vagina with his penis. The evidence is
sufficient to sustain the conviction in counts four and five.

On count six, rape of a child, the State elected the “penile, genital penetration of the
victim by the [Appellant] in his car parked at the dead end of Suzanne.” On count seven,
rape of a child, the State elected the “digital genital penetration of the victim by the
[Appellant] in his car parked at the dead end of Suzanne, which occurred during the same
occasion as penile, genital penetration described above in Count 6.” Count eight charged
the Appellant with rape of a child, and the State elected “an occasion separate from that
described in Counts 6 and 7 above wherein penile, genital was the only form of penetration
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of the victim by the [Appellant] in his car parked at the dead end of Suzanne.” The victim
testified that the Appellant drove her to the dead end of Suzanne Street. On one occasion
on Suzanne Street, the Appellant “touched [her] with his fingers,” and he penetrated her
vagina with his penis. On another occasion, he penetrated her vagina with his penis. The
third time, “he touched [her] with his fingers.” He asked her to perform oral sex on him,
but she refused. The victim testified that offenses on Lawrence Street and Suzanne Street
occurred after she and the Appellant had taken the victim’s friends home. The
stepgrandmother’s testimony confirmed that on the occasions when the Appellant and the
victim drove the victim’s friends home, they were gone for a long time. The evidence is
sufficient to sustain the convictions in counts six and eight. However, as to count 7, the
victim testified that “he touched me with his fingers.” She made no allegations of
penetration. Accordingly, we must reverse his conviction of rape of a child in count 7.
Regardless, we note that while the State was questioning the victim about the Appellant’s
inappropriate touching, the victim said that the Appellant “touched me with his fingers.”
The victim also immediately said that the Appellant also penetrated her with his penis,
inferring that the area the Appellant touched was her genital area. Accordingly, we
conclude that the proof was sufficient to establish that the Appellant committed the lesser-
included offense of aggravated sexual battery. See State v. Itzol-Deleon, 537 S.W.3d 434,
452 (Tenn. 2017).

On count nine, the Appellant was charged with aggravated sexual battery, and the
State elected the “[Appellant’s] grabbing the victim’s breasts with his hands while standing
behind her in the bedroom in the victim’s home as witnessed by [the stepgrandmother].”
The victim testified that on one occasion, her stepgrandmother walked into the bedroom
when the victim and the Appellant “were play fighting one time. And he had me like kind
of bent over on the bed with his hands on my breasts.” The stepgrandmother’s testimony
confirmed that she had seen the Appellant standing behind the victim with his hands on her
breasts. The evidence is sufficient to sustain the conviction in count nine.

On count ten, aggravated sexual battery, the State elected the “[Appellant’s]
touching the victim’s genitalia with his hand during the nighttime game of hide and seek
played outside of the victim’s home.” The victim testified that on one occasion when her
family was outside their residence playing hide and seek in the dark, the Appellant came
up to her, slipped his hand inside the waistband of her yoga pants, and touched her vagina.
The evidence is sufficient to sustain the conviction in count ten.

On count eleven, solicitation of rape of a child, the State elected the “[Appellant’s]
asking the victim to put her mouth on his penis while parked at the dead end of Suzanne.”
The Appellant also asked the victim to perform oral sex on him while they were parked at
the dead end of Suzanne Street, but she refused. The evidence is sufficient to sustain the
conviction in count eleven.
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 On count twelve, solicitation of aggravated sexual battery, the State elected the
“[Appellant’s] asking the victim to touch his penis with her hand while parked at the dead
end of Suzanne.” The victim said that on one occasion when they were at the dead end of
Lawrence Street, the Appellant “asked me if I could jack him off.” The victim refused.
We note that although the State elected that the offense occurred on Suzanne Street, the
victim testified that the offense occurred on Lawrence Street. Our supreme court has
explained:

The election doctrine refers to the prosecutor’s duty in a case
where evidence of multiple separate incidents is introduced to
elect for each count charged the specific incident on which the
jury should deliberate to determine the defendant’s guilt. . . .
The election requirement augment[s] the general unanimity
instruction and serves to ensure that the jury understands its
obligation to agree unanimously that the defendant committed
the same criminal act before it may convict the defendant of a
criminal offense.

State v. Qualls, 482 S.W.3d 1, 9-10 (Tenn. 2016) (citations and internal quotation marks
omitted). In the instant case, the location of the offense was not necessary for the jury to
render a unanimous verdict given that the victim testified about only one incident when the
Appellant requested she touch his penis to make him ejaculate. See State v. Bruce Turner,
No. W2010-02513-CCA-R3-CD, 2012 WL 12303681, at *13 (Tenn. Crim. App. at
Jackson, May 25, 2012). We conclude that the proof was sufficient to sustain the proof in
count 12.

On appeal, the Appellant contends that although the victim described the household
as “chaotic,” no family members ever saw any abuse or questioned the frequent
“departure[s] and arrival[s]” of the Appellant and the victim. The Appellant further notes
that the victim said Barfield Park closed at dark; however, she testified that an offense
occurred in the park while it was dark. The Appellant also contends that if the victim’s
personal items were inside his clear plastic storage bins, someone in the house should have
seen the items prior to his leaving the residence. The record largely belies the Appellant’s
contentions. We note that the victim explained that although the park closed at dark, it was
“near dark” when the Appellant took her to the park. She said that the park had not closed,
and the Appellant had time to commit the offense. Moreover, the stepgrandmother
witnessed some of the behavior between the Appellant and the victim in the home and was
disturbed that the Appellant would not allow her or the victim’s brothers to accompany
him and the victim to the store. Moreover, regarding the storage bins, the victim testified
that the items were so small that they could have been easily overlooked or hidden among
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the Appellant’s other belongings. The Appellant’s complaints essentially challenge the
credibility of the witnesses. Determining the credibility of witnesses is within the purview
of the jury. See State v. Millsaps, 30 S.W.3d 364, 368 (Tenn. Crim. App. 2000) (stating
that “the weight and credibility of the witnesses’ testimony are matters entrusted
exclusively to the jury as the trier[ ] of fact”). Our courts have repeatedly held that the
testimony of a rape victim is sufficient standing alone to sustain a conviction. See State v.
Elkins, 102 S.W.3d 578, 582-83 (Tenn. 2003); State v. Wyrick, 62 S.W.3d 751, 767 (Tenn.
Crim. App. 2001). In the instant case, the jury clearly resolved the issue of credibility in
the State’s favor. We may not now reconsider the jury’s credibility assessment. See State
v. Carruthers, 35 S.W.3d 516, 558 (Tenn. 2000). The proof presented at trial amply
supports the Appellant’s convictions.

B. Sentencing

On appeal, the Appellant challenges the length of the sentences imposed by the trial
court. This court reviews the length, range, and manner of service of a sentence imposed
by the trial court under an abuse of discretion standard with a presumption of
reasonableness. State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012); see also State v. Pollard,
432 S.W.3d 851, 859 (Tenn. 2013) (applying the standard to consecutive sentencing); State
v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012) (applying the standard to alternative
sentencing). In conducting its review, the trial court considers the following factors: (1)
the evidence, if any, received at the trial and the sentencing hearing; (2) the presentence
report; (3) the principles of sentencing and arguments as to sentencing alternatives; (4) the
nature and characteristics of the criminal conduct involved; (5) evidence and information
offered by the parties on enhancement and mitigating factors; (6) any statistical information
provided by the administrative office of the courts as to sentencing practices for similar
offenses in Tennessee; (7) any statement by the Appellant in his own behalf; and (8) the
result of the validated risk and needs assessment conducted by the department and
contained in the presentence report. See Tenn. Code Ann. §§ 40-35-102, -103, -210; see
also Bise, 380 S.W.3d at 697-98. The burden is on the Appellant to demonstrate the
impropriety of his sentences. See Tenn. Code Ann. § 40-35-401, Sent’g Comm’n Cmts.2

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

(1) The minimum sentence within the range of
punishment is the sentence that should be imposed, because the
general assembly set the minimum length of sentence for each

2
We note that the appellate record contains the judgments of conviction for only counts one through
eight.
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 felony class to reflect the relative seriousness of each criminal
offense in the felony classifications; and

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

Tenn. Code Ann. § 40-35-210(c).

Although the trial court should consider enhancement and mitigating factors, the
statutory enhancement factors are advisory only. See Tenn. Code Ann. § 40-35-114; see
also Bise, 380 S.W.3d at 701; State v. Carter, 254 S.W.3d 335, 343 (Tenn. 2008). Our
supreme court has stated that “a trial court’s weighing of various mitigating and
enhancement factors [is] left to the trial court’s sound discretion.” Carter, 254 S.W.3d at
345. In other words, “the trial court is free to select any sentence within the applicable
range so long as the length of the sentence is ‘consistent with the purposes and principles
of [the Sentencing Act].’” Id. at 343 (quoting Tenn. Code Ann. § 40-35-210(d)). Appellate
courts are “bound by a trial court’s decision as to the length of the sentence imposed so
long as it is imposed in a manner consistent with the purposes and principles set out in
sections -102 and -103 of the Sentencing Act.” Id. at 346.

At the sentencing hearing, the trial court, at the request of the State, merged counts
four and five. The State argued that enhancement factor (1), namely that the Appellant had
a previous history of criminal convictions or criminal behavior in addition to those
necessary to establish the appropriate range, applied to all of the Appellant’s convictions.
Tenn. Code Ann. § 40-35-114(1). The trial court agreed, noting that the Appellant had a
prior conviction of attempted aggravated sexual battery. The State also argued that
enhancement factor (7), namely that the offense involved a victim and was committed to
gratify the defendant’s desire for pleasure or excitement, should be applied to the
convictions of rape of a child, solicitation of rape of a child, and solicitation of aggravated
sexual battery but noted that it could not be applied to the convictions of aggravated sexual
battery because it was an element of the offense. Tenn. Code Ann. § 40-35-114(7). The
trial court agreed and sentenced the Appellant to thirty years for each rape of a child
conviction, ten years for each aggravated sexual battery conviction, ten years for the
solicitation of rape of a child conviction, and five years for the solicitation of aggravated
sexual battery conviction. The trial court found that consecutive sentencing was
appropriate because the Appellant was convicted of two or more offenses involving the
sexual abuse of a minor, that the Appellant abused a position of trust in committing the
offenses, and that the offenses “went on for sometime until the [step]mother was released

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from jail.” The trial court ordered all of the sentences to be served consecutively for a total
effective sentence of 245 years.

On appeal, the Appellant contends that the trial court improperly applied
enhancement factor (7) to the convictions of aggravated sexual battery because it was an
element of the offense. Tenn. Code Ann. § 40-35-114(7). The Appellant further contends
that the trial court failed to state why enhancement factor (7) applied to the rape of a child
convictions.

The record reflects that the trial court agreed with the State that enhancement factor
(7) could not be applied to the convictions of aggravated sexual battery because it was an
element of the offenses. Our supreme court has held that sexual battery necessarily
includes the intent to gratify a desire for pleasure or excitement. See State v. Kissinger,
922 S.W.2d 482, 489 (Tenn. 1996).

We agree with the Appellant that the trial court did not explain its reasoning for
applying enhancement factor (7) to the Appellant’s convictions of rape of a child,
solicitation of rape of child by asking for oral sex, and solicitation of aggravated sexual
battery by asking the victim to touch his penis. Nevertheless, the record reflects that after
moving into the mobile home to help care for the victim and the other children, the
Appellant promised the victim rewards and bought things for her when she complied with
his sexual requests. The Appellant arranged to have time alone with the victim. On one
occasion when they were interrupted by the victim’s brother, the Appellant “kept trying to
go” until the victim made him stop. The Appellant also bought the Appellant a provocative
Halloween costume that was inappropriate for her age and spoke to the stepgrandmother
and stepmother about a girl with whom he was in love and stated that he thought about her
frequently. The stepgrandmother and the stepmother thought the Appellant was referring
to the victim. Accordingly, the record supports the application of enhancement factor (7)
to these convictions.

Regardless, we note that the trial court’s imposition of the maximum sentences is
justified by the application of enhancement factor (1) alone. See Bise, 380 S.W.3d at 706
(“So long as there are other reasons consistent with the purposes and principles of
sentencing, as provided by statute, a sentence imposed by the trial court within the
appropriate range should be upheld.”). The presentence report reflects that in 2014, the
Appellant pled guilty to the aggravated sexual battery of his ex-girlfriend’s nine-year-old
daughter. The Appellant also had prior convictions of “unlaw[ful] drug paraphernalia uses
& activities.”

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 We note that we have reduced the Appellant’s conviction in count seven to
aggravated sexual battery. We note that the trial court imposed a sentence of ten years for
the Appellant’s other convictions of aggravated sexual battery, which we likewise deem
appropriate for the conviction in count seven. Further, we will not disturb the trial court’s
imposition of consecutive sentencing.

C. Right to Fair Trial

Finally, the Appellant contends that his right to a fair trial was violated when he was
escorted into the courtroom through a security door by a uniformed officer in view of the
jury pool. At the motion for new trial hearing, the Appellant testified that he wore “street
clothes” for trial. The Appellant testified that on the morning of trial, he was brought into
the full courtroom at 9:00 a.m. The Appellant said that he was wearing street clothes and
that he was escorted into the courtroom through the secure side door by a uniformed deputy
sheriff who had his hand on the Appellant’s shoulder. The Appellant’s complaint seemed
to be the location of the door.

Defense counsel argued that “we may have inadvertently lifted the vale [sic] of
innocence right at the start of the trial” by revealing that the Appellant was in custody and
“potential[ly] . . . poison[ed] the mind of the jury.” The State said that it did not recall the
event and that the Appellant must not have lodged a contemporaneous objection.3 The
State said:

I believe the proof that has come forth at this particular
hearing is that he walked through a – we call it a secure door.
But, you know, it’s not like – for the record, it’s just a white,
metal door. It looks like a metal door. It looks like a regular
door. It’s painted white like the rest of the room. And it’s not
like gray iron with little bar slats on anything.

He came in through that door with the sheriff’s deputy’s
hand on his shoulder. Unshackled, wearing normal clothes.
He was not in an inmate’s jumpsuit. And like it’s not, I would
say such a spectacle might humanize the [Appellant] for the
jury with a member of law enforcement putting his hand on his
shoulder.

3
The record does not reflect any contemporaneous objection to the way the Appellant was brought
into the courtroom.
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 The trial court stated that the Appellant’s trial may have been the first one held in
the new building. The trial court noted:

The elevators bringing someone up from the holding cells in
the basement are inside the secure door that is referenced. But
there’s nothing on the door or in the courtroom that would
indicate that there are cells in there. That there [is] any reason
that he would be in custody as a reason that he would be
brought through that door.

Accordingly, the trial court found that the jurors had no reason to know that the Appellant
was coming from a holding area. The trial court further stated that “we had deputies all
over the courtroom and all over the hallways and in the entrance with regard to security of
the building. And that’s not unusual to have a deputy for security.” Therefore, the trial
court found no prejudice.

This court addressed a similar issue in State v. Marlon D. Beauregard, No. W1999-
01496-CCA-R3-CD, 2000 WL 705978 (Tenn. Crim. App. at Jackson, May 26, 2000). In
Beauregard, the defendant contended “that he was not permitted to use the door available
to the general public, but instead was forced to enter the courtroom from a holding cell
adjacent to the courtroom and was escorted to the defense table by two sheriff’s deputies.”
Id. at *8. The defendant argued that he was thereby deprived of a fair trial because the
jurors knew he was incarcerated and the jurors would have speculated on what crime he
previously committed. Id. This court acknowledged that “‘a defendant should not be
required to wear prison clothing or be in handcuffs during trial in a courtroom, except
insofar as the trial court, in its sound discretion may find it necessary to prevent escapes,
violence or misconduct which would impede the trial.’” Id. (quoting State v. Baker, 751
S.W.2d 154, 164 (Tenn. Crim. App. 1987)). This court concluded, however, that although
the defendant was escorted into the courtroom by two guards, the defendant was not
restrained in any way. Id. This court explained that

[w]hile shackling and prison clothes are unmistakable
indications of the need to separate a defendant from the
community at large, the presence of guards at a defendant’s
trial need not be interpreted as a sign that he is particularly
dangerous or culpable. . . . Indeed, it is entirely possible that
jurors will not infer anything at all from the presence of the
guards.

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Id. at *8-9 (quoting Holbrook v. Flynn, 475 U.S. 560, 569 (1986)). Further, this court
stated that the record was not clear whether the defendant’s entrance into the courtroom
had any effect on the jury. Id. at *9.

As in Beauregard, the Appellant, who was in “street clothes” and was not in
shackles, was escorted into the courtroom by a uniformed deputy sheriff. Although the
Appellant claimed the side door through which he was escorted was a “secured door,” the
trial court found that the door was “a plain white, metal door” which bore no markings
“that would indicate to the jurors that it leads to an inmate holding area.” The trial court
found that the Appellant suffered no prejudice. See Beauregard, No. W1999-01496-CCA-
R3-CD, 2000 WL 705978, at *8-9; see also State v. Charles Wade McGaha, No. E2006-
01984-CCA-R3-CD, 2008 WL 148943, at *9 (Tenn. Crim. App. at Knoxville, Jan. 16,
2008); State v. Carlos Demetrius Harris, No. E2000-00718-CCA-R3-CD, 2001 WL 9927,
at *3-4 (Tenn. Crim. App. at Knoxville, Jan. 4, 2001).

“Generally, the trial court, which has presided over the
proceedings, is in the best position to make determinations
regarding how to achieve [the] primary purpose [of ensuring a
fair trial], and absent some abuse of the trial court’s discretion
in marshalling the trial, an appellate court should not
redetermine in retrospect and on a cold record how the case
should have been better tried.”

Beauregard, No. W1999-01496-CCA-R3-CD, 2000 WL 705978, at *9 (quoting State v.
Franklin, 714 S.W.2d 252, 258 (Tenn. 1986)). We conclude that the trial court did not err.

III. Conclusion

In sum, we conclude that the State adduced insufficient evidence to sustain the
Appellant’s conviction of rape of a child in count 7; however, the evidence is sufficient to
sustain a conviction of the lesser-included offense of aggravated sexual battery with an
accompanying sentence of ten years. The trial court’s judgments are affirmed in all other
respects.

_________________________________
NORMA MCGEE OGLE, JUDGE

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