State v. Jeffrey Edward Pitts

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED JANUARY SESSION, 1998 March 18, 1999

Cecil W. Crowson STATE OF TE NNE SSE E, ) Appellate Court Clerk C.C.A. NO. 01C01-9701-CC-00003 ) Appellee, ) ) ) WAYNE COUNTY VS. ) ) HON. JAMES L. WEATHERFORD JEFFREY EDWARD PITTS, ) JUDGE ) Appe llant. ) (Dire ct Ap pea l - Cla ss E Felo ny)

FOR THE APPELLANT: FOR THE APPELLEE:

W.C. KEATON JOHN KNOX WALKUP LAURA METC ALF Attorney General and Reporter Keaton, Turner & Spitzer P. O. Box 789 KAREN YACUZZO 102 N. Court Street Assistant Attorney Geneal Hohenwald, TN 38462 425 Fifth Avenu e North Nashville, TN 37243-0493

MIKE BOTTOMS District Attorney General

STELLA HARGROVE Assistant District Attorney Public Squ are Columbia, TN 38401

OPINION FILED ________________________ AFFIRMED IN PART; REVERSED IN PART

JERRY L. SMITH, JUDGE

OPINION

The appellant, Jeffrey Edward Pitts, was convicted by a Wayne County jury of two (2) counts of sexual battery, a Class E felony. He was sentenced as a Range I offender to consecutive terms of one (1) year incarceration for each offense. On ap peal, Ap pellant pre sents the following issues for our consideration: (1) whether there was a fatal variance between the indictment and the state’s proof at trial; (2) whether the evidence was s ufficien t to sus tain Appe llant's convictions; (3) whether the prosecution's closing argument was improper; (4) whether the trial court erred in failing to instruct the jury on the lesser included offense of assault; and (5) whether the trial c ourt pr operly sentenced Appellant. After a tho rough review o f the record before this Cou rt, we conclude that the state failed to establish venue on Count One; therefore, Appe llant’s conviction on Count One is reversed. In all other respects, the judgment of the trial court is affirmed.

FACTUAL BACKGROUND

D.Q., 1 the victim, worked at Buffalo River Services, an organization employing mentally disabled individuals.2 He was forty-three years old at the time of trial in 1996 and ha d worked for B uffalo River Services since 1973 . Part of D.Q.'s e mplo ymen t includ ed trav eling p eriodic ally to ne arby to wns w ith a supervisor in order to empty donation boxes. Appellant was such a supervisor.

1 It is the policy of this Court to not reveal the names of victims of sexual abuse.

2 Phillip Garner, Executive Director for Buffalo River Services, testified that to qualify as a client at that organization, an individual must have an IQ of sixty-nine (69) or below.

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D.Q. testified that during one of their trips, Appellant ask ed D.Q. to pe rform oral sex on Appellant, but D.Q. refused. Appellant persisted in soliciting oral sex from D.Q., and D.Q. ultim ately acqu iesced o n two differe nt occas ions. According to his testimony, D.Q. complied with Appellant’s wishes because Appellant was “the bos s” and b ecaus e D.Q. h ad bee n directed to do wh atever the boss sa id.

On the first occasion, Ap pellant and the victim drove alone to Hoh enwa ld to collect donations from the donation boxes when Appellant again asked D.Q. to perform oral sex on him. Appellant told D.Q. that the oral sex would “make [Appella nt] feel good.” Appellant also warned the victim not to tell anyone about what had o ccurre d. D.Q . could not rec all the s pecific location of the first incide nt.

D.Q. testified that the second incident occurred on the day immediately following the first in ciden t. He re called that the seco nd inc ident o ccurre d while he, Appellant, and anoth er Buffalo River S ervices client, Larry Griffin, were returning from Hohenwald after retrieving collections from the donation boxes. D.Q. testified that the second incident occurred near a cafe and a service station located in Wa ynesbo ro, Ten nesse e.

At trial, the state called Larry Griff in to testify. However, Griffin was unrespon sive to the oath, as well as to questions posed by the prosecution and defens e coun sel.

Both D.Q. and his father testified that D .Q. expe rienced seizures . D.Q. admitted that during a seizure, it was not uncommon for him to grab people or objects nearby. The victim’s father explained that it was not unusual for D.Q. to have two or three se izures pe r day.

The state pre sente d doc ume ntation from B uffalo R iver Se rvices w hich showed that the victim had traveled with a supervisor to assist in picking up clothing for the donation boxes on June 22 and June 30 of 1994. The

-3-documentation further showed that Larry Griffin was “possibly” riding with the victim on June 30. The state further presented “vehicle documentation sheets” from June 22 and June 30, which showed that Appellant was traveling on those days. However, the “vehicle documentation sheets” indicated that Appellant was traveling with supported employment clients on those days. The victim was a “day services client,” not a “supported employment client.” Laura Brewer, the program director at Buffa lo River S ervices , testified that the driver o f the veh icle was the person who co mplete d the “veh icle docu menta tion shee t.”3

Appellant testified in his own behalf at trial. He stated that he worked at Buffa lo River S ervices from a pprox imate ly April 1 987 until Aug ust 199 4. Appellant supervised both the vocational rehabilitation program and supported emplo ymen t program .

Appellant testified that beca use D.Q . was a da y services client, he was not under Appellant's supervision. Appellant denied ever being alone with the victim in a vehicle during the summer of 1994. He further testified that he wa s neve r in a vehicle with D.Q. and Larry Griffin during that time period.4 Appellant stated that there were only two occasions where he traveled w ith “day services clients” during the summer of 1994, and D.Q. was not one of those clients. Add itionally, he den ied falsifying th e “vehicle d ocum entation s heets” o n any oc casion.

The jury returned guilty verdicts on two (2) counts of sexual battery. 5 The trial court sentenced Appellant as a Range I offender to consecutive terms of one

3 It was the state’s theory at trial that because Appellant was responsible for completing the “vehicle documentati on sheet,” he fa lsified the do cuments to co nceal his cri minal activit y.

4 Because D.Q. was epileptic, Appellant testified that he never would have attempted to drive the truck accompanied only by D.Q. He explained tha t whenever he traveled with any client having a seizure disorder, such as ep ilepsy, he would take alo ng a third person, either another staff member or a client with no history of seizures, to assist in restraining the individual in the event of a seizure until he could pull off the road. Appellant further testified that Griffin also experienced seizures.

5 Appellant was originally indicted on two (2) counts of aggravated sexual battery. However, the state subsequentl y amended the in dictment to ch arge Appellan t with two (2) counts of sexual battery.

-4-(1) year for each co unt. Additionally, the trial court denied alternative sentencing and ordered that Appellant serve his sentence in incarc eration . From his convic tions a nd se ntenc es, Ap pellan t brings this ap peal.

FATAL VARIANCE

In his first issue, Appellant argues that the evidence presented at trial differed from th e date s elect ed by th e state in the b ill of particulars to such a degree as to present a fatal variance between the indictm ent and the proo f. He claims that because the victim testified that the offenses occurred on consecutive days, but the state elected non-consecutive days as the dates of the offenses, he was severely prejudiced.

Tenn. Code Ann. § 40-13-207 provides, “[t]he time at which an offense was committed need not be stated in th e indictm ent. . . unless the time is a material ingredient of the offense.” Inde ed, it is only necessa ry that the evidence prove that the offense oc curred prior to the retu rn of the indictm ent. State v. Anderson, 748 S.W.2d 201, 203 (Tenn. Crim. App. 1985). A variance between the indictment and the proof at trial will no t be he ld fatal unless it is both material and prejud icial. State v. Holloman, 835 S.W.2d 42, 45 (Tenn. Crim. App . 1992). “A material varian ce will not be found where the allega tions a nd pro of sub stantia lly correspon d.” Id.

In the present case, the indictment alleged that the offenses occurred during the summer of 1994. In response to Appellant’s motion for a bill of particulars, the state furnished the defense with three possible dates of the offense s: April 4, June 22, and June 30, 19 94. At th e con clusio n of the state’s proof, the prosec ution nar rowed its election to June 2 2 and J une 30 , 1994.

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Contrary to App ellant’s assertion, we find no variance between the indictment and the proof pre sented at trial. The in dictme nt alleged that the offenses occurred in the sum mer of 1 994, an d the state elected the dates of the offenses to be June 22 and June 30, 1994. The victim testified that the offenses occurred in the “summertime” because the trees were green. Furthermore, the state presented documentation that the offenses occurred on June 22 and June 30, 1994.

The only evidence presented by the state that the offenses occurred on consecu tive dates w as the tes timony o f the victim, a mentally disabled person. The fact that the victim testified to cons ecutive dates when the state relied upon non-cons ecutive dates merely amounts to a conflict in p roof for the jury to reconcile. The majority of the state’s proof supported the allegation that the offenses occurred on June 22 and June 30, 1994. There was no variance, mate rial or oth erwise , betwe en the indictm ent an d the s tate’s p roof at tr ial.

This issu e is withou t merit.

SUFFICIENCY OF THE EVIDENCE

In his ne xt issue , Appe llant arg ues th at the e vidence is insu fficient to support his convictions for sexual battery. Specifically, he claims that the sta te failed to prove the eleme nts for two c ounts o f sexual ba ttery. Furthe r, he insists that the victim wa s an “a ccom plice” to any se xual ac tivity, and therefo re, his testimony must be corroborated. Finally, Appellant asserts that the state failed to establish that the offe nses o ccurred in W ayne C ounty an d, thus, failed to establish venue by a preponderance of the evidence.

A. Standard of Review

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This Court reviews a challenge to the sufficiency of the evidence according to certain well-settled principles. On appea l, “the state is entitled to the strongest legitimate view of the evidence as well as all rea sonab le and leg itimate inferences that may be drawn therefrom.” Id. (citing State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978)). W here th e suffic iency o f the evid ence is contested on appea l, the relevant question for the reviewing cou rt is whether any rational trier of fact could have found the accused guilty of every element of the offense beyond a reaso nable d oubt. Jack son v. V irginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2 789, 61 L.Ed.2d 560 (19 79); State v. Harris , 839 S.W.2d 54, 75 (Tenn. 1992); Tenn. R. App. P. 13(e). In conducting our evaluation of the convicting evidence, this Court is precluded from reweighing or reconsidering the evidence and may not substitute its own inferences for those drawn by the trier of fact. State v. Morgan, 929 S.W .2d 380 , 383 (T enn. C rim. App . 1996); State v. Matthews, 805 S.W .2d 776, 779 (Tenn. Crim . App. 1990 ).

A verdict of guilty by the jury, approved by the trial judge, accredits the testimony of the s tate's w itness es an d reso lves all c onflicts in the te stimo ny in favor of the state. State v. Cazes, 875 S.W.2d 253, 25 9 (Ten n. 1994 ); State v. Harris , 839 S.W.2d at 75. Although an accused is originally cloaked with a presumption of innocence , a jury verdict removes this presumption and replaces it with one of gu ilt. State v. Tug gle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the burden of proof rests with Appellant to demonstrate the insufficienc y of the con victing evide nce. Id.

B. Elements o f Sexual Battery

Appellant contends that the state failed to prove the essential elements of sexual battery beyond a reasonable doubt. Firstly, he claims that there is insufficient evidence for the jury to find that the victim was “mentally defective”

-7-under Tenn. Code Ann. § 39-13-501(3). He further argues that the state failed to prove that the sexu al contact was “unlawful.” Finally, he asserts that the state failed to pro ve two (2) in stance s of sexua l contact.

1.

Sexual battery is “un lawful sexu al contac t with a victim by the defendant or the defendant by a victim” where the “defendant knows or has reason to know that the victim is mentally defec tive, me ntally inc apac itated o r physic ally helpless .” Tenn. Co de Ann. §§ 39-13-503 (a)(2), 39-13-505(a) (1991). Under Tenn. Code Ann. § 39-13 -501( 3) (199 1), a pe rson is “men tally defective” if the person “suffers from a m ental disease o r defect which ren ders that person tempo rarily or perm anently inc apable of appra ising the n ature of h is condu ct.”

At trial, the victim’s father testified that D.Q. was approximately eight (8) years old when he was institu tionalized due to a m ental disa bility. D.Q. remained in the institution for about ten (10) years. The victim’s father testified that, alth ough D.Q. c an write his own na me, he has ne ver learne d how to read. Furtherm ore, the victim’s father testified that D.Q. had never dated, did not discuss sex and had never “act[ed] out sexually.” Additiona lly, Phillip Garner, Executive Director of Buffalo River Services, testified that to qualify as a client at that organization, an individual must have an IQ of sixty-nine (69) or below. D.Q. began workin g at Bu ffalo River Services in 1973 and continued to do so during the trial in 199 6.

Appellant argues that because the victim testified on several occasions that he knew th e sexua l activity was “w rong,” an d beca use he refused to participa te in the sexual activity on a prior occasion, then he was c apab le of “appraising the nature of his conduct.” However, knowing that such sexual activity is “wrong” does not necess arily equate with being capable of ap praising the natu re of his

-8-condu ct. D.Q., as a client of Buffalo River Services, had to have a n IQ of sixty-nine (69) or below in order to participate in the program. Moreover, the jury was able to observe the victim during his testimony and determine his mental capacity. 6 There was sufficient evidence from which a jury could find that the victim was “m entally defic ient” und er the statu te. See Tenn . Code Ann. § 39-13-501(3) (199 1).

2.

Appellant also argu es that the state failed to prove that the sexual contact was “unlawful.” He cites Campbell v. Sundquist, 926 S.W.2d 250 (Tenn. App. 1996), for the proposition that consensual, homosexual activity is not an illegal act. Apparently, the a ppella nt’s arg ume nt is tha t an “un lawful” s exual a ct is synonymous with a non -conse nsual ac t; therefore, if the victim consented to the sexual contac t, there is no sexual ba ttery.

In State v. Jones, 889 S.W.2d 225 (Tenn. Crim. App. 1994), the defendant raised a similar argument with regard to aggravated rape. This Court rejected the argum ent, stating , “[e]ven thoug h the te rm ‘un lawful’ may generally refer to non-consensual acts, the defense of consent is still not available when the factor elevating the crime from simple rape to aggravated rape is the age of the victim.” Id. at 227. We find the same reasoning applies in this case. Because lack of consent is not an element to sexual battery under this portion of the statute, the consent of the victim is never a defense. See Tenn. Code Ann. §§ 39-13-503(a)(2), 39-13-505 (a) (1991 ). The us e of the w ord “unla wful” in the s tatute does not alter this.

6 Indeed, the trial court commented at the sentencing hearing, “I’m convinced from the testimony, from his family members, from seeing the [victim] myself, seeing him testify, that he is severely mentally handicapped . . .”

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3.

Appellant further argues that the state merely proved one instance of sexual battery ; therefo re, one of his convictions must be reversed. Although the victim’s testimony is admittedly confusing, he explained to the jury that he refused to participate in the sexual activity when he and Appe llant were o n a trip to Collinwood. He then testified that the first time he participated in the activity, he and Appe llant we re alone in the truck on the way to Hohenwald. The second incident occurred on the way back from H ohenwa ld, and Larry Griffin was present in the truck. T he victim did not describe both incidents in detail, but testified that both incidents lasted ap proxima tely five (5) m inutes. T he state presented sufficient evidence o f two (2) separate instances of se xual activity.

This issu e is withou t merit.

C. Accomplice Testimony

Next, Appellant contends that the victim was an accomplice to any sexual activity. Therefore, he contends tha t the victim’s testimony must be corroborated. Appellant maintains that, without such corroboration, his convictions for sexual battery can not be sustained.

It is well-estab lished that a conviction may not be based solely upon the uncorroborated testimony of an accomplice. State v. Bigbee, 885 S.W.2d 797, 803 (Tenn . 1994); State v. Harris, 839 S.W .2d 54, 75 (Tenn . 1992); State v. McKnight, 900 S.W.2d 36, 47 (Tenn. Crim. App. 1994). Appellant relies on State v. Schimpf, 782 S.W.2d 186, 196 (Tenn. Crim. App. 1989), for the proposition that “a child, even though legally incapable of consenting to a crime, may nevertheless be an acco mplic e, thus nece ssitatin g corro boratio n of his

-10-testimon y.” Appe llant urg es this Court to extend this “victim-accomplice”7 rule to this case so that we should find that the victim, notwithstanding his inability to appreciate the nature of his conduct, was a willing participant and, thus, an accomplice to any sexual activity. This we decline to do.

First, the proposition in Schimpf was effectively overturned in 1991 with the enactment of Tenn. Code Ann. § 40-17-121, which provides:

[i]f the alle ged vic tim of a sexu al pen etration or sexu al con tact with in the meaning of § 39-13-501 is less than thirteen (13) years of age, such victim shall, regardless of consent, not be considered to be an accomplice to such sexual penetration or sexual contact, and no corroboration of such alleged victim's testim ony sha ll be require d to secure a conviction if corroboration is necessary solely because the alleged victim consented.

Second ly, an “accom plice” is one who “knowingly, voluntarily, and with common intent unites with the principal offender in the commission of a crime .” State v. Robinson, 971 S.W .2d 30, 42 (Tenn . Crim. A pp. 199 7). A “me ntally defective” person under Tenn. Code Ann. § 39-1 3-501(3) is one who “suffers from a mental disease or defect which renders that person temporarily or perm anen tly incapable of ap praising the natu re of his conduct.” Tenn. Code Ann. § 39-13-501(3). It would be absurd to find a that person who is “incapable of appraising the natur e of his condu ct” could “k nowing ly, voluntarily, an d with common intent” p articipate in a criminal offense with the principal offender. By its very definition, a “men tally defective” per son is inca pable o f consen ting to these sexual acts.

Moreover, the evidence presented in this case does not support the allegation that the victim was a willing participant to the sexual activity. D.Q.

7 We are perplexed as to how a “victim” can be an “accomplice” under any circumstance. The two terms are mutually exclusive under Tennessee law. A “victim” is statutorily defined as “the person alleged to have been subjected to criminal sexual conduct.” Tenn. Code Ann. § 39-13-501(8) (1991) (emphasis added). However, an “accomplice”is one who “knowingly, voluntarily, and with common intent unites with the principal offender in the commission of a crime.” State v. Green, 915 S.W.2d 827, 831 (Tenn. Crim. App. 1995) (emphasis added). Furthermore, the “test” to determine if a person is an accomplice to an offense is whether that person could be indicted for or convicted of that offense. State v. Green, 915 S.W.2d at 831; State v. Lawson, 794 S.W.2d 363, 369 (Tenn. Crim. App. 1990).

-11-testified that he acquiesced only because Appellant was his boss, and he had been directed to do wha tever the b oss told h im to do. D .Q. was not an “accomplice” to these acts; therefore, no corroboration was required.

This issu e has n o merit.

D. Venue

Appellant further claims that the state failed to present sufficient proof that the offenses occ urred in W ayne Cou nty. The state concedes that venue was not established as to Count One of the indictment, but argues that sufficient evidence was presented that Count Two occurred in Wayne County. We agree.

Article I, § 9 of th e Te nnes see C onstitution provides, “in all criminal prosecutions, the ac cuse d hath the righ t to. . . a sp eedy p ublic tria l, by an impartial jury of the C ounty in w hich the c rime sh all have be en com mitted. . . .” See also Tenn. R. Crim. P. 8(a) (“Except as otherwise provided by statute or by these rules, offenses shall be prosecuted in the county where the offense was committed.”). Venue is a jurisdictional fact and not an element of the charged offense . State v. Bloodsaw, 746 S.W.2d 722, 723-24 (Tenn. Crim. App . 1987). The prosecution must satisfy its burden of proving that the offense was committed in the county alleged in the indictm ent. State v. S mith, 926 S.W.2d 267, 269 (Tenn. Crim. App. 1995). In a criminal case, venue must be proved by a preponderance of the evidence. Tenn. Code Ann. § 3 9-11-20 1(e); State v. Marbury, 908 S.W.2d 405, 407 (Tenn . Crim. A pp. 199 5); State v. Davis , 872 S.W.2d 950, 952 (Tenn. Crim. A pp. 199 3). This evid ence m ay be eith er direct, circum stantial, or bo th. State v. S mith, 926 S.W.2d at 269.

At trial, D.Q. could not recall the specific location of the first incident. He stated only that he and A ppella nt were travelin g towa rd Ho henw ald at th e time of the first sexual incident. Be cause they were traveling from Wa ynesbo ro to

-12-Hoh enwa ld during the incident, D.Q. and Appellant might have crossed the county line. Thus, the prosecution failed to establish venue regarding this first incident. Therefore, Appellant’s conviction as to Count One must be reversed.

Howeve r, D.Q. stated that the second instance of sexual contact occurred while returning from Hohenwald. He testified that they were in Waynesboro, near a service sta tion and a cafe. D.Q . also testified that Waynesboro is in Wayne County. Only slight evidence is needed to satisfy the prosecution's burden of proving venue so long as that eviden ce is unc ontradicte d. State v. Bloodsaw, 746 S.W.2d at 724. The victim’s testimony that the second incident occurred in Wayne Coun ty is uncon tradicted. Accordingly, the state sufficiently established venue with regard to Count Two.

IMPROPER ARGUMENT

Appellant ne xt contends that the sta te mad e impro per rem arks du ring its closing argument. Firstly, Appellant complains that because Griffin was unab le to testify, the prosecution improperly argued that Larry Griffin was present in the vehicle with Appellant and the victim. Secondly, he argues that the state compounded this error by implyin g that G riffin’s testimony would have bolstered D.Q.’s testimony had Griffin testified.

The portion of closing argument complained of by Appellant reads as follows:

If you’re going to have a witness, it’s usually somebody who is incapable of coming forward and corroborating. Too young gene rally would be the case to doc ume nt and corrob orate w hat’s going on.

And isn’t that w hat we have in this cas e? O f all the p eople that could have been victimized by Jeff Pitts and could have been

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a witness to these illicit relations would be Mr. Griffin. You’ve been able to observe that he--Well, you've observed what you observed from him and I’ll leave it there.

“Trial courts have s ubsta ntial discretionary authority in determining the propriety of final argu ment. A lthough couns el is gene rally given w ide latitude, courts must restrict any im proper com mentary.” Coke r v. State, 911 S.W.2d 357, 368 (Tenn. Crim. App. 1995) (citing Sparks v. State, 563 S.W.2d 564 (Tenn. Crim. App. 1978 )). The broad discretion accorded to trial courts in controlling the argument of cou nsel “w ill not be reviewed absent abuse of that discretion.” Smith v. State, 527 S.W .2d 737 , 739 (T enn. 19 75); see also State v. Payton, 782 S.W.2d 490, 496 (Tenn. Crim. App. 1989). The bounds of proper closing argument are de lineate d by the facts in evidenc e. State v. Pulliam, 950 S.W.2d 360, 368 (Ten n. Crim . App. 1 996). C onver sely, fac ts not in evidence may not be the subject of comment by counsel during closing arg umen t. State v. Mackey, 638 S.W .2d 830, 836 (Tenn. Crim . App. 1982 ).

Appellant has wa ived his righ t to raise th is issue on ap peal d ue to h is failure to contemporaneously object to the prosecution’s allegedly improper remarks at trial. State v. Green, 947 S.W.2d 186, 188 (Tenn. Crim. App. 1997 ); State v. Seay, 945 S.W.2d 755, 762 (T enn. C rim. App . 1996); State v. Little, 854 S.W.2d 643, 651 (T enn. Crim. A pp. 1992); T enn. R. Ap p. P. 36(a). More over, Appellant did not mak e proper citations to th e record to suc h erroneous argum ent. “Issues w hich are n ot supp orted by a rgume nt, citation to authorities, or appropriate references to the record will be treated as waived in this court.” Tenne ssee Co urt of Criminal Ap peals Rule 1 0(b).

In any event, we do not view the prosecution’s argu ment a s errone ous. The victim te stified th at Larr y Griffin was present during the second instance of

-14-sexual abuse. Furthermore, the state presented documentation that Griffin was poss ibly travelin g with the victim on June 30, the date of the second sexual assau lt. Although Griffin was not able to testify, the jury observed the trial court and counsel attempting to administer the oath. The state’s argument was based upon evidence that had been presented to the jury. Furthermore, Appellant has not established how th e alleged improp er argum ent affecte d the jury’s ve rdict. See State v. Pulliam, 950 S.W .2d 360, 367 (Tenn. Crim . App. 1996 ).

This issu e is withou t merit.

LESSER INCLUDED OFFENSE OF ASSAULT

Appellant next complains that he was denied his constitutional right to trial by jury as a result of the trial court's failure to instruct the jury on assault as a lesser included offense of sexu al battery. 8 We disagree.

Initially, we must note that Appellant failed to include this issue in h is motion for new trial. Therefore, the issue is waived. Tenn . R. App . P. 3(e); State v. Maddox, 957 S.W .2d 547 , 553 (T enn. C rim. App . 1997); State v. Spadafina, 952 S.W .2d 444, 451 (Tenn. Crim . App. 1996 ).

Neverth eless, we will address the merits of this argument briefly. The accused in a criminal prosecution has a right to a correct and complete charge of the law ap plicable to the case . State v. Phipps, 883 S.W.2d 138, 142 (Tenn. Crim. App. 19 94); State v. Wright, 618 S.W.2d 310, 315 (Tenn. Crim . App. 1981 ). The trial cou rt’s failure to instruct the jury on any lesser included offenses raised by the evidence denies a defendant his constitutional right to trial by jury. State

8 The parties do not dispute that assault is a lesser included offense of sexual battery. See State v. Howard, 926 S.W.2d 579, 586 (Tenn. Crim. App. 1996).

-15-v. Wright, 618 S.W.2d at 315 (citing State v. Staggs, 554 S.W.2d 620, 626 (Tenn. 1977)).

Tenn . Code Ann. § 4 0-18-11 0 provide s in part:

(a) It is the d uty of all ju dges charg ing jurie s in cases of criminal prosecutions for any felony wherein two (2) or more grades or classes of offen se m ay be in clude d in the indictm ent, to charge the jury as to all of the law of each offense included in the indictm ent, without any request on the part of the defendant to do so.

Tenn . Code Ann. § 4 0-18-11 0(a); see also State v. Jones, 889 S.W.2d at 230.

Tennessee case law is clear that a defendant is entitled to a jury instruction “on all lesser included offenses where ‘any facts. . . are susceptible of inferring guilt of any lesser include d offense.’” State v. Trusty, 919 S.W.2d 305, 310 (Tenn. 1996) (quoting State v. Wright, 618 S.W .2d at 315.).

At trial, Appellant den ied being alon e in the truck with D .Q. on the days in question. Appellant completely denied having any physical contact whatsoever with the victim. The extent of the touching was not an iss ue at trial. “Whe n there is no evide nce to support a lesser included offense so that the accused can be guilty only of the g reater offe nse or n o offense at all, it is not error to refuse to instruct the lesser included offens es.” State v. Barker, 642 S.W.2d 735, 738 (Tenn. Crim. A pp. 198 2); see also State v. Larry Fields, C.C.A. No. 11 (Tenn. Crim. App. filed March 20, 1991, a t Jackso n), perm. to app. denied (Ten n. July 1, 1991); State v. David H. Owen, C.C.A. No. 1209 (Tenn. Crim. App. filed May 26, 1989, a t Knoxville), perm. to app. denied (Tenn. O ctober 2, 1989 ). Because the evidence supported either a finding that Appellant wa s guilty of sexual battery or nothing at all, an instruction on assault was not warranted under the facts of this case.

This issu e has n o merit.

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SENTENCING

In his final issue, Appellant complains that his sentence is excessive. Specifically, he alleges that the trial court misapplied certain enhancement factors. Additionally, he argu es that he wa s erroneou sly denied alternative sentencing. Finally, he claims that the trial court erred in imp osing cons ecutive sentences.

A. Standard of Review

When an appellant challenges the length, range, or manner of service of a sentence, this Court conducts a de novo review with a presumption that the determination of the trial court was corre ct. Tenn. Co de Ann. § 4 0-35-401(d ). Howeve r, this presum ption of correctne ss is “conditioned upon the affirm ative showing that the trial court in the record considered the sentencing principles and all relevant facts and circumstanc es.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In the event that the record fails to demonstrate such consideration, review of the sentenc e is purely de novo. Id. If appellate review reflects that the trial court p roper ly considered all relevant factors and its findings of fact are adeq uately s uppo rted by the rec ord, this Cour t mus t affirm the senten ce. State v. Fletcher, 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ). In conducting a review, this Court must c onsider the evidence, the presentence report, the sente ncing prin ciples, the a rgume nts of counsel, the nature and character of the offen se, mitiga ting and e nhanc emen t factors, an y statem ents made by the defen dant, and the potential fo r rehabilitation or treatm ent. State v. Holland, 860 S.W.2d 53, 60 (Tenn. Crim. App. 1993). The defendant bears the burden of showing the impr opriety of the senten ce imp osed. State v. Grego ry, 862 S.W .2d 574, 578 (Tenn. Crim . App. 1993 ).

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B. Length and Manner of Sentence

Appellant challenges the trial court’s finding of enhancement factors and further challenges the court’s decision to deny alternative sentencing.

1.

Appellant was convicted of sexu al battery, a Class E felony. Tenn. Code Ann. § 39-13-505(b) (1991). A s a Ran ge I stand ard offen der con victed of a Class E felony, Appellant’s statutory sentencing range was one to two years. Tenn. Code Ann. § 40-35-112(a)(5). The trial court found that the following enhancement factors shou ld app ly: (1) the victim of the offense was “particu larly vulnerable becau se of age or physica l or men tal disability,” Te nn. Co de Ann . § 40-35-114 (4); and (2) the “offense involved a victim and was co mm itted to gratify the defendant's desire for pleasure or excitement,” Tenn. Code Ann. § 40-35-114(7). In mitigation, the trial court applie d Tenn. C ode A nn. § 4 0-35- 113(1 3) in light of Appellant’s regular employment, meeting his father's health care needs, and making current child support payments. The trial court imposed a sentence of one (1) year, the minimum within the range, fo r each co nviction. The trial court further denied alternative sentencing in an effort to avoid depreciating the seriousness of the offense.

2.

Appellant claims that the trial court erred in applying Tenn. Code Ann. §40-35-114(4) and (7) as both enhancement factors are elements of the offense of sexual battery. The state concedes that these factors were misapplied, and we agree. Howe ver, beca use the trial court sentenced Appellant to the minimum sentence within the range, he is not entitled to a reduction in his sentence.9

9 Appellant does not argue that he should be sentenced as an Especially Mitigated Offender under Tenn. Code Ann. § 40-35-109. However, this Court finds that he would not be entitled to sentencing as an Especially Mitigated Offender. We are authorized, under our power of de novo review, to consider any enhancement factors supported

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3.

Appellant further argues that the trial cou rt erred in denying a lternative sentencing. An especially mitigated or standard offender convicted of a Class C, D or E felony is presumed to be a favorable candidate for alternative sentencing in the absence of evidence to the contrary. Tenn. Code Ann. § 4 0-35-10 2(6). A trial court m ust presu me tha t a defend ant sen tenced to eight (8) years or less and who is not an offe nder for w hom in carcera tion is a priority is s ubject to alternative sentencing. State v. Byrd, 861 S.W.2d 377, 379-380 (Tenn. Crim. App . 1993). It is further presu med that a s enten ce oth er than incarc eration would result in successful rehabilitation unless rebutted by sufficient evidence in the record. Id. at 380. However, although a d efend ant m ay be p resum ed to b e a favo rable candid ate for alternative sentencing, the defendant has the burden of establishing suitability for total prob ation. State v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim. App. 1996); see Tenn. Code Ann. § 40-35-303(b). Even though probation must be automatically considered, “the defendant is not automatically entitled to probation as a m atter of law.” Tenn. Code Ann. § 40-35-303(b) Sentencing Commission Com ments ; State v. Hartley, 818 S.W.2d 370, 373 (Tenn. Crim. App. 1991 ).

In determining whether to grant or deny probation, a trial court should consider the circumstances of the offense, the defendant’s criminal record, the defen dant’s social history and present condition, the need for deterrence, and the best interest of th e defen dant an d the pu blic. State v. Grear, 568 S.W.2d 285, 286 (Tenn . 1978); State v. Boyd , 925 S.W.2d 237, 244 (Ten n. Crim. App . 1995); State v. Black, 924 S.W.2d 912, 917 (Tenn. Crim. App. 1995). The d efend ant’s

by the record. State v. Claybrooks, 910 S.W.2d 868, 873 (Tenn. Crim. App. 1994). Appellant has a history of prior criminal conduct as he admitted to illegal marijuana use in the pre-sentence report. Tenn. Code Ann. § 40-35- 114(1). Furthermore, although rejected by the trial court as an enhancement factor, we find that Appellant abused a position of private trust. Tenn. Code Ann. § 40-35-114(15).

-19-lack of cred ibility is also an ap propr iate co nside ration and reflects on a defend ant’s potential fo r rehabilitation . State v. Zeolia , 928 S.W.2d 457, 463 (Tenn. C rim. App. 199 6).

As Appellant was convicted of a Class E felony, he is entitled to the presumption in favor of alternative sentenc ing. Tenn. C ode Ann . § 40-35-102 (6). Howeve r, Appellant is not eligible for community corrections because he was convicted of com mitting se xual batte ry, a crime against the person. Tenn. Code Ann. § 40-3 6-106(a)(2).

At the time of sentencing, Appellant had no prior criminal record. He testified at his sentencing hearing that if the court placed him on probation, he would be willing to comply with the terms of his probation, including attending counseling.

This Court has previously held that the fact that the convicted crime is a crime of violence can be a factor which would weigh a gainst pro bation. State v. Gennoe, 851 S.W .2d 833 , 837 (T enn. C rim. App .), perm. to app. denied (Tenn. 1992). Furthermore, a breach of trust can also be a basis for denying probation. Id.

This Court concludes that the trial court did not err in denying probation. The circum stanc es of th e offen se we re suc h that A ppella nt, as th e victim ’s supervisor, pursued the victim for sexual relations. The victim had been instructed to obey his sup ervisors and ultim ately acqu iesced in the sexu al activity as a result. The proof d emo nstrate d that th e victim was s evere ly men tally handicapped, as noted by the trial co urt in sente ncing. Notw ithstanding the presumption in favor of alternative sentencing, the circumstances of the offense along with the patent b reach of trust support the trial court’s conclusion that probation was not warranted in this case.

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This issu e is withou t merit.

C. Consecutive Sentencing

Finall y, Appe llant co ntend s that th e trial co urt erre d in im posin g consecu tive sentences for his convictions. However, because we must reverse Appe llant’s conviction for sexua l battery in Count O ne due to the state’s failure to establish venue, th is issue is m oot.

CONCLUSION

W e find that the evidence is insufficient to establish that the offense of sexual battery in C ount O ne occ urred in W ayne C ounty; the refore, App ellant’s conviction in Count One is reversed. However, because we conclude that no other reversible error exists in the record, we affirm the trial court’s judgment with respect to Count Two.

____________________________________ JERRY L. SMITH, JUDGE

CONCUR:

___________________________________ DAVID H. WELLES, JUDGE

___________________________________ THOMAS T. WOODALL, JUDGE

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