FILED

April 29, 1999

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

JANUARY SESSION, 1999

STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9801-CC-00031

)

Appellee, )

)

) HUMPHREYS COUNTY

VS. )

) HON. ROBERT E. BURCH

DAVID J. FORRESTER, ) JUDGE

)

Appellant. ) (Direct Appeal - Aggravated Sexual 

) Battery)

FOR THE APPELLANT: FOR THE APPELLEE:

TERRY J. LEONARD JOHN KNOX WALKUP

9 North Court Square Attorney General and Reporter

P. O. Box 957

Camden, TN 38320 KIM R. HELPER

Assistant Attorney General

425 Fifth Avenue North

Nashville, TN 37243-0493

DAN ALSOBROOKS

District Attorney General

GEORGE SEXTON

Assistant District Attorney

Room 206

Waverly, TN 37185

OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
-2-

OPINION

In December of 1996, Appellant David J. Forrester was indicted by the

Humphreys County Grand Jury for attempted rape of a child and for aggravated

sexual battery. On July 25, 1997, Appellant filed a motion to suppress a pretrial

statement that he gave to state investigators. The trial court denied the motion

after a hearing on August 25, 1997. On August 28, 1997, Appellant was

convicted of aggravated sexual battery. After a sentencing hearing on December

9, 1997, the trial court sentenced Appellant to a term of ten years in the

Tennessee Department of Correction. Appellant challenges both his conviction

and his sentence, raising the following issues:

1) whether the trial court erred when it admitted his pretrial statement into

evidence;

2) whether the evidence was sufficient to support his conviction;

3) whether the trial court should have instructed the jury on lesser included

offenses, including child abuse;

4) whether the trial court’s response to a question from the jury about the

severity of the charged offenses prejudiced Appellant; and

5) whether the trial court imposed an excessive sentence.

After a review of the record, we affirm the judgment of the trial court.

I. FACTS

Sharon Stump testified that on September 14, 1996, her car tire went flat

in front of the home of Appellant and his wife, Julie Forrester. As Stump

approached the back door of Appellant’s home in order to use the telephone, she

looked through some glass patio doors and saw Appellant rubbing his penis on

the buttocks of Appellant’s naked four-year-old daughter. Stump subsequently
-3-

reported the incident to the Tennessee Department of Human Services and to

Julie Forrester.

On November 20, 1996, Appellant voluntarily took a polygraph test that had

been arranged by his attorney. After the polygraph test had been administered,

Appellant participated in a post-polygraph interview conducted by Agent Mike

Smith of the Tennessee Bureau of Investigation, Investigator Ted Tarpley of the

district attorney general’s office, and Norma Williams of the Tennessee

Department of Children’s Services. During this interview, Appellant gave a

signed statement in which he admitted that after he took his daughter out of the

bathtub on September 14, 1996, she touched his penis and he had an erection.

Appellant then admitted that when his naked daughter lay down on the floor, he

took his penis out and rubbed it on her buttocks for approximately two to five

minutes in order to obtain sexual gratification. 

At trial, Appellant testified that his pretrial statement was untrue and that

the only reason he gave the statement was because his interviewers told him that

if he told them what they wanted to hear, he would get custody of his children

back and he would receive counseling instead of having to appear in court. 

II. ADMISSION OF APPELLANT’S PRETRIAL STATEMENT

Appellant contends that the trial court erred when it admitted his pretrial

statement into evidence. Specifically, Appellant contends that the statement was

inadmissible because he was not properly Mirandized, the statement was given
-4-

involuntarily, and the statement was obtained in violation of Appellant’s right to

counsel.

A. Miranda

Appellant contends that his pretrial statement was inadmissible because

the police did not properly administer the Miranda warnings. Appellant concedes

that he was given Miranda warnings before he took the polygraph test, however,

he claims that the police should have given the Miranda warnings again before

he participated in the post-polygraph interview.

In Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 1630, 16 L.Ed.2d

694 (1966), the United States Supreme Court ruled that the Fifth and Fourteenth

Amendments’ prohibition against compelled self-incrimination requires police

officers, before initiating questioning, to advise the putative defendant of his right

to remain silent and his right to counsel. Specifically, Miranda requires police to

inform the person being questioned that (a) he has the right to remain silent; (b)

any statement made may be used as evidence against him; (c) he has the right

to the presence of an attorney; and (d) if he can not afford an attorney, one will

be appointed for him prior to questioning, if he so desires. Id., 384 U.S. at 444,

86 S.Ct. at 1612.

However, police officers are only required to give Miranda warnings prior

to “custodial interrogation” which has been defined as a “formal arrest or restraint

on freedom of movement of the degree associated with a formal arrest.”

Stansbury v. California, 511 U.S. 318, 322–23, 114 S.Ct. 1526, 1528–29, 128
-5-

L.Ed.2d 293 (1994); State v. Bush, 942 S.W.2d 489, 499 (Tenn. 1997). The

United States Supreme Court has held that it is appropriate to apply an objective

test to determine whether a person is in custody and therefore entitled to receive

Miranda warnings. Courts must consider the totality of the circumstances of the

interrogation and inquire “how a reasonable man in the suspect’s position would

have understood his situation.” Berkem er v. McCarty, 468 U.S. 420, 422, 104

S.Ct. 3138, 3151, 82 L.Ed.2d 317 (1984); see also Stansbury, 511 U.S. at

323–24, 114 S.Ct. at 1529. In State v. Anderson, 937 S.W.2d 851, 855

(Tenn.1996), the Tennessee Supreme Court expressly adopted the objective

analysis employed by the United States Supreme Court and adopted several

nonexclusive factors to aid in the objective assessment of whether a reasonable

person would consider himself or herself deprived of freedom of movement to a

degree associated with a formal arrest. Relevant factors include (1) the time and

location of the interrogation; (2) the duration and character of the questioning;

(3) the officer’s tone of voice and general demeanor; (4) the method of

transportation to the place of questioning; (5) the number of police officers

present; (6) limitations on movement or other forms of restraint imposed during

the interrogation; (7) interactions between the officer and the person being

questioned, including the words spoken by the officer and the verbal or nonverbal

responses of the person being questioned; (8) the extent to which the person

being questioned is confronted with the officer’s suspicions of guilt or evidence

of guilt; and finally (9) the extent to which the person being questioned is aware

that he or she is free to refrain from answering questions or to end the interview

at will. Id. The determination of whether an individual is in custody is fact

specific, and the trial court should assess the applicability of the relevant factors

in making its findings. Id. The trial court’s decision will not be overturned by this
-6-

Court unless it appears there has been an abuse of the trial court’s discretion and

a violation of the appellant’s rights. State v. Smith, 868 S.W.2d 561, 570 (Tenn.

1993).

Considering the totality of the circumstances, we conclude that the trial

court did not abuse its discretion in determining that Appellant was not in custody

when he gave his signed statement. There is no real dispute in this case that

Appellant was the one who first suggested that he take a polygraph test and that

he voluntarily took the test after it was arranged by his attorney. Further, the

record indicates that it was Appellant’s parents, and not the police, who

transported Appellant to the assistant district attorney general’s office where he

took the polygraph test. Agent Smith testified at the suppression hearing that

before he administered the polygraph test, he advised Appellant of his Miranda

rights and told Appellant that he was free to leave at any time. Indeed, the record

contains two forms signed by Appellant in which he acknowledged that he had

been advised of his Miranda rights and had been advised that he was free to

leave whenever he desired. Agent Smith also testified that Appellant never

asked to leave at any time. The record also indicates that the polygraph test and

the post-polygraph interview took place from approximately 1:00 p.m. to 4:30 p.m.

and that during this time, Appellant took at least one break in which he went

outside with his parents to sm oke cigarettes. Agent Smith also testified that no

one ever threatened Appellant during the polygraph and post-polygraph interview.

Finally, once the interview had been concluded, Appellant was allowed to leave

the courthouse with his parents. 
-7-

In short, we conclude that the trial court did not abuse its discretion when

it determined that Appellant was not “in custody” during the post-polygraph

interview in which he gave his signed statement. Because Appellant was not in

custody, the police were not required to readminister the Miranda warnings

before conducting the post-polygraph interview. This issue has no merit.

B. Voluntariness of Appellant’s Statement

Appellant contends that his pretrial statement was inadmissible because

it was given involuntarily. Specifically, Appellant claims that the statement was

involuntary because he was suffering from a headache and back pain, he was

threatened by the police, and he was promised that he would not go to jail if he

cooperated.

Even though a statement was not given as a result of custodial

interrogation, the statement must still be voluntary in order to be admissible. See

Arizona v. Fulminante, 499 U.S. 279, 286–88, 111 S.C t. 1246, 1252–53, 113

L.Ed.2d 302 (1991). In order to be considered voluntary, the statement must not

be extracted by “any sort of threats or violence, nor obtained by any direct or

implied promises, however slight, nor by the exertion of any improper influence.”

Bram v. United States, 168 U.S. 532, 542–43, 18 S.Ct. 183, 187, 42 L.Ed. 568

(1897); State v. Kelly, 603 S.W.2d 726, 727 (Tenn. 1980). However, “[a]

defendant’s subjective perception alone is not sufficient to justify a conclusion of

involuntariness in the constitutional sense.” State v. Smith, 933 S.W.2d 450, 455

(Tenn. 1996). Instead, “coercive police activity is a necessary predicate to finding

that a confession is not voluntary.” Id.
-8-

 Whether or not a statement was voluntarily given is determined by

examining the totality of the circumstances. Kelly, 603 S.W.2d at 728–29 (Tenn.

1980). “A trial court’s determination that a confession was given knowingly and

voluntarily is binding on the appellate courts unless the defendant can show that

the evidence preponderates against the trial court’s ruling.” State v. Keen, 926

S.W.2d 727, 741 (Tenn. 1994). In addition, the findings of fact made by the trial

court at a hearing on a motion to suppress will also be upheld unless the

evidence preponderates otherwise. State v. Odom, 928 S.W.2d 18, 23 (Tenn.

1996). Questions about witness credibility and “resolution of conflicts in the

evidence are matters entrusted to the trial judge.” Id.

First, Appellant claims that his statement was involuntary because it was

a result of threats from Smith and Tarpley. Specifically, Appellant testified at the

suppression hearing that Smith threatened that if Appellant did not confess,

Appellant would receive the maximum jail sentence. Appellant also testified that

Tarpley threatened that if Appellant did not confess, Tarpley would contact

Channel 5 News. However, Smith testified that no one had threatened Appellant

at any time. At the close of the hearing, the trial court stated that it found that

Appellant had been untruthful in his testimony and that Appellant had never been

threatened. The evidence does not preponderate against the trial court’s finding.

Second, Appellant claims that his statement was involuntary because it

was a result of police prom ises of leniency. Specifically, Appellant testified at the

suppression hearing that he was promised that if he confessed, he would receive

counseling and would not have to go to jail. However, Smith denied that

Appellant was promised counseling and testified that instead, Appellant was
-9-

advised that Smith would recommend counseling if Appellant cooperated. Sm ith

did admit that he told Appellant that if he did not cooperate, Smith would just turn

the matter over to the district attorney and it might be possible that things would

go harder on Appellant. The trial court believed Smith’s version of the facts and

found that although counseling was mentioned, it was not conditioned on

cooperation. We conclude that the evidence does not preponderate against the

trial court’s findings of fact on this issue. In addition, we conclude that Smith’s

statements about counseling and the possibility of turning the matter over to the

district attorney did not render Appellant’s statement involuntary. Indeed, the

Tennessee Supreme Court has stated that

Promises of leniency by state officers do not render subsequent

confessions involuntary per se: The Fifth Amendment does not condemn

all promise-induced adm issions and confessions; it condemns only those

which are compelled by promises of leniency. The critical question is

whether the behavior of the state’s law enforcement officials was such as

to overbear petitioner’s will to resist and bring about confessions not freely

self-determined.

Smith, 933 S.W.2d at 455–56 (citations and internal quotations omitted). In fact,

the supreme court found that statements to the defendant that he might not be

prosecuted if he told the truth and that he definitely would be prosecuted if he

refused to admit guilt were not enough to render the defendant’s confession

involuntary because the promises were equivocal and further, “[a]dvice to an

individual concerning the consequences of a refusal to cooperate is not

objectionable.” Id. at 456. Similarly, we conclude that Smith’s statements that

there was a possibility that Appellant could receive counseling and that the matter

would be turned over to the district attorney if Appellant did not cooperate were

not “so coercive as to overbear [Appellant’s] will.” See id. 
-10-

Third, Appellant claims that his statement was involuntary because he was

suffering from stress and from a severe headache and back pain that was caused

by Tarpley’s instruction that Appellant was not to take any medication before the

polygraph test. Although Tarpley admitted that he advised Appellant not to take

any medication, there is no evidence that Tarpley did so in order to make

Appellant more susceptible to police coercion. In any case, we conclude that

while Appellant’s physical and mental condition was certainly relevant to the

determination of whether his statement was given voluntarily, the totality of the

circumstances indicates that the statement was voluntary. Most importantly, it

is undisputed that Appellant was advised of his Miranda rights before the

polygraph test began and Appellant signed a form in which he acknowledged that

he had been given these rights and that he was voluntarily waiving his rights. In

addition, Appellant also signed a form in which he acknowledged that he had

been advised that he was free to leave whenever he desired. Further, Appellant

was allowed to roam about at will and talk to his parents during the break

between the polygraph test and the post-polygraph interview. Under the totality

of the circumstances, we conclude that the evidence does not preponderate

against the trial court’s finding that Appellant’s statement was given voluntarily.

This issue has no merit.

C. Right to Counsel

Appellant contends that his pretrial statement was inadmissible because

it was obtained in violation of his right to counsel.
1Appellan t’s argum ent imp lies that the State surre ptitiously cond ucted the polygraph test and p ostpolygraph interview without notifying Appellant’s counsel. However, as previously noted, the record

indicates that Appellant’s attorney helped make the arrangements for the polygraph test. Further, the trial

court specifically found that Appellant’s attorney knew when the polygraph test would take place and

simply chose not to attend. We note that Appellant’s counsel at the time he submitted to the polygraph test

is not the same attorney who represented Appellant in the trial and appeal of this case.

-11-

Initially, Appellant claims that his Sixth Amendment right to counsel was

violated because his attorney was not present when he was questioned by the

state investigators. The law is clear that the Sixth Amendment right to counsel

attaches to all critical stages of a prosecution and that “once adversary

proceedings have commenced against an individual, he has a right to legal

representation when the government interrogates him.” Brewer v. Williams, 430

U.S. 387, 401, 97 S.Ct. 1232, 1240, 51 L.Ed.2d 424 (1977). In Tennessee,

“[j]udicial proceedings are considered initiated, and thus Sixth Am endment rights

attach, at the time an arrest warrant issues, a preliminary hearing is held (if no

arrest warrant is issued), or an indictment or presentment is returned.” State v.

Jackson, 889 S.W.2d 219, 222 (Tenn. Crim. App. 1993). In this case, there is no

indication in the record that any of these events had occurred before the

polygraph test and post-polygraph interview on November 20, 1996. Because

no judicial proceedings had been initiated against Appellant in this case at the

time he gave his statement, his Sixth Amendment right to counsel had not

attached and thus, was not violated. See id.1

Appellant also claims that his Fifth Amendment right to counsel under

Miranda was violated because the State investigators continued to question him

after he had invoked his right to counsel. Specifically, Appellant testified at the

suppression hearing that he asked for his attorney as soon as the post-polygraph

test began. However, Tarpley testified that Appellant never asked for an attorney

until after he had already given the statement. Further, Williams also testified
2Although it is not clear, Appellant apparently contends that his right to counsel was also violated

because while he was participating in the post-polygraph interview, both of his parents questioned Tarpley

about whether their son needed an attorney. However, it is clear that Appellant’s parents could not invoke

the right to co unsel on behalf of their twenty-n ine-year-o ld son. See Terry v. Lefevre, 862 F.2d 409, 412

(2d Cir. 1988) (holding that a mother could not invoke he r twenty-seven-year-old son’s right to counsel).

-12-

that Appellant did not ask for an attorney until after he had already given the

statement. The trial court believed the State’s witnesses and found that

Appellant did not request an attorney until after he had given his statement and

that as soon as Appellant did ask for an attorney, the interview was concluded.

The evidence does not preponderate against this finding. Therefore, we

conclude that Appellant’s Fifth Amendm ent right to counsel under Miranda was

not violated.2

 This issue has no merit.

III. SUFFICIENCY OF THE EVIDENCE

Appellant contends that the evidence was insufficient to support his

conviction. When an appellant challenges the sufficiency of the evidence, this

Court is obliged to review that challenge according to certain well-settled

principles. A verdict of guilty by the jury, approved by the trial judge, accredits the

testimony of the State’s witnesses and resolves all conflicts in the testimony in

favor of the State. State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994). Although

an accused is originally cloaked with a presumption of innocence, a jury verdict

removes this presumption and replaces it with one of guilt. State v. Tuggle, 639

S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the burden of proof rests with

Appellant to demonstrate the insufficiency of the convicting evidence. Id. On

appeal, “the [S]tate is entitled to the strongest legitimate view of the evidence as

well as all reasonable and legitimate inferences that may be drawn therefrom.”

Id. Where the sufficiency of the evidence is contested on appeal, the relevant
-13-

question for the reviewing court is whether any rational trier of fact could have

found the accused guilty of every element of the offense beyond a reasonable

doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed.

2d 560 (1979). In conducting our evaluation of the convicting evidence, this

Court is precluded from reweighing or reconsidering the evidence. State v.

Morgan, 929 S.W.2d 380, 383 (Tenn. Crim. App. 1996). Moreover, this Court

may not substitute its own inferences “for those drawn by the trier of fact from

circumstantial evidence.” State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.

App. 1990). Finally, Rule 13(e) of the Tennessee Rules of Appellate Procedure

provides, “findings of guilt in criminal actions whether by the trial court or jury

shall be set aside if the evidence is insufficient to support the findings by the trier

of fact beyond a reasonable doubt.”

In this case, Appellant was convicted of aggravated sexual battery. Under

Tennessee law, a person commits aggravated sexual battery when the person

has unlawful sexual contact with a victim who is less that thirteen years old.

Tenn. Code Ann. § 39-13-504(a)(4) (1997). “Sexual contact” includes the

intentional touching of the victim ’s buttocks if the touching can be reasonably

construed as being for the purpose of sexual arousal or gratification. Tenn. Code

Ann. § 39-13-501(2), (6) (1997). When viewed in the light most favorable to the

State, the evidence in this case was clearly sufficient for a rational jury to

conclude that Appellant had committed this offense. Stump testified that she saw

Appellant rub his penis on the buttocks of the naked four-year-old female victim.

In addition, the State introduced Appellant’s signed statement in which he

admitted that he had rubbed his penis on the buttocks of the naked victim in order

to obtain sexual gratification. 
3As part of his sufficiency of the evidence argument, Appellant alleges that the jury ignored the

evide nce and b ased its ve rdict o n pas sion and p rejud ice. H owe ver, Appellant has fa iled to supp ort this

conclusory statement with citation to anything in the record. In fact, Appellant has failed to identify any

reason in his brief for why the jury would have been prejudiced against him. During the hearing on

Appellant’s Motion for a New Trial, the trial court stated that there was no evidence that passion or

prejudice had played any part in the jury’s verdict. There is absolutely nothing in the record that

preponderates against the trial court’s finding.

-14-

Appellant essentially argues that Stump’s testimony should be disregarded

because she had a motive to lie and because her testimony contained

statements that were either contradicted by other parts of her testimony or by the

testimony of Appellant and other witnesses. Further, Appellant essentially argues

that his signed statement should be disregarded because he testified at trial that

the statement was given under stress and he only made the statement in order

to obtain custody of his children. However, “[t]he credibility of the witnesses, the

weight to be given their testimony, and the reconciliation of conflicts in the

evidence are matters entrusted exclusively to the jury as the triers of fact.” State

v. Cribbs, 967 S.W.2d 773, 793 (Tenn. 1998). It is obvious that the jury chose

to believe Stump’s testimony and chose to reject Appellant’s testimony. In short,

it is clear that when the evidence is viewed in the light most favorable to the

State, a rational jury could find beyond a reasonable doubt that Appellant had

committed the offense of aggravated sexual battery.3

 This issue has no merit.

IV. FAILURE TO INSTRUCT ON LESSER OFFENSES

Appellant contends that the trial court erred when it failed to instruct the

jury on the lesser included offenses, particularly the offense of child abuse.

Tennessee Code Annotated section 40-18-110(a) provides that a trial

judge must charge the jury with all lesser grades or classes of an offense
-15-

supported by the evidence, without any request on the part of the defendant to

do so. Tenn. Code Ann. § 40-18-110(a) (1997). See also State v. Trusty, 919

S.W.2d 305, 311 (Tenn. 1996). However, the Tennessee Supreme Court has

held that error cannot be predicated on a trial court’s failure to charge a lesser

included offense when the evidence clearly demonstrates that the defendant is

guilty of a greater offense. State v. Stephenson, 878 S.W.2d 530, 550 (Tenn.

1994). Further, this Court has specifically held that a trial court’s failure to

instruct the jury on the lesser included offense of child abuse was not error when

the evidence clearly showed that the defendant had committed aggravated

sexual battery. State v. Blanton, 926 S.W.2d 953, 960 (Tenn. Crim. App. 1996).

In order to prove that Appellant had committed aggravated sexual battery, the

State had to establish that Appellant intentionally touched the buttocks of the

four-year-old victim for the purpose of sexual arousal or gratification. Tenn. Code

Ann. §§ 39-13-501(2), (6), -504(a)(4) (1997). The evidence in this case, including

Appellant’s own statement, clearly established that Appellant committed this

offense and nothing less. Thus, the trial court did not err when it failed to instruct

the jury on any lesser included offenses. This issue has no merit.

V. THE TRIAL COURT’S RESPONSE TO A QUESTION FROM THE JURY

Appellant contends that the trial court’s response to a question from the

jury resulted in undue prejudice. The record indicates that during deliberations,

the jury returned with a question about whether attempted rape of a child was a

more serious offense than aggravated sexual battery. In response, the trial court

stated:
-16-

Don’t concern yourselves with which case is the more severe. Do not

concern yourselves with that. Concern yourselves with which of the

charges fit the facts and then let the chips fall where they may. Is that

sufficient explanation? 

Appellant cites Veal v. State, 196 Tenn. 443, 268 S.W.2d 345 (1954), for

the proposition that the trial judge should not, through action or word, indicate any

conclusion as to the guilt or innocence of the accused. However, Appellant has

failed to explain how this comment from the trial court could be construed as a

comment on the strength of the State’s evidence. Indeed, it is evident that the

trial court was not commenting on the evidence. Rather, the trial court merely

encouraged the jury to consider the facts and apply the facts to each of the

charges to see whether the proof established guilt for either charge, regardless

of which charge was the more serious. This issue has no merit.

VI. LENGTH OF SENTENCE

Appellant contends that the trial court erroneously imposed a longer

sentence than he deserves.

“When reviewing sentencing issues . . . including the granting or denial of

probation and the length of sentence, the appellate court shall conduct a de novo

review on the record of such issues. Such review shall be conducted with a

presumption that the determinations made by the court from which the appeal is

taken are correct.” Tenn. Code Ann. § 40-35-401(d) (1997). “However, the

presumption of correctness which accompanies the trial court’s action is

conditioned upon the affirmative showing in the record that the trial court

considered the sentencing principles and all relevant facts and circumstances.”
-17-

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In conducting our review, we

must consider all the evidence, the presentence report, the sentencing principles,

the enhancing and mitigating factors, arguments of counsel, the appellant’s

statements, the nature and character of the offense, and the appellant’s potential

for rehabilitation. Tenn. Code Ann. §§ 40-35-103(5), -210(b) (1997 & Supp.

1998); Ashby, 823 S.W.2d at 169. “The defendant has the burden of

demonstrating that the sentence is improper.” Id. Because the record in this

case indicates that the trial court properly considered the sentencing principles

and all relevant facts and circumstances, our review is de novo with a

presumption of correctness.

In this case, Appellant was convicted of aggravated sexual battery, a Class

B felony. See Tenn. Code Ann. § 39-13-504(b) (1997). The sentence for a

Range I offender convicted of a Class B felony is between eight and twelve years.

Tenn. Code Ann. § 40-35-112(a)(2) (1997). When both enhancement and

mitigating factors are applicable to a sentence, the court is directed to begin with

the minimum sentence, enhance the sentence within the range as appropriate for

the enhancement factors, and then reduce the sentence within the range as

appropriate for the mitigating factors. Tenn. Code Ann. § 40-35-210(e) (1997).

In sentencing Appellant to a term of ten years, the trial court found that

enhancement factor (1) applied because Appellant had a history of criminal

convictions or criminal behavior in addition to those necessary to establish the

appropriate sentencing range. See Tenn. Code Ann. § 40-35-114(1) (1997). The

trial court concluded that this factor was entitled to little weight. The trial court

also found that enhancement factor (15) applied because Appellant had abused
-18-

a position of private trust in a way that significantly facilitated the commission of

the offense. See Tenn. Code Ann. § 40-35-114(15) (1997). The trial court

concluded that this factor was entitled to significant weight. The trial court then

considered several mitigating factors proposed by Appellant, but found that the

only mitigating factor that applied was that Appellant had some mental problems.

See Tenn. Code Ann. § 40-35-113(13) (1997). The trial court concluded that this

mitigating factor was entitled to little weight. 

Appellant does not challenge the trial court’s application of the two

enhancement factors, and we conclude that they were correctly applied. Indeed,

the record indicates that enhancement factor (1) applied because Appellant has

previous convictions for marijuana possession and for driving under the influence

of an intoxicant. We also conclude that enhancement factor (15) applied

because as the victim’s father charged with her care and control, Appellant

abused his position of private trust in a manner that significantly facilitated his

commission of the offense. See State v. Hayes, 899 S.W.2d 175, 187 (Tenn.

Crim. App. 1995). Appellant does not contend that the trial court should have

applied any additional mitigating factors, and we conclude that no additional

mitigating factors applied in this case.

Essentially, Appellant’s sole argument in regard to his sentence is that the

trial court failed to give adequate weight to the mitigating factor as balanced

against the enhancem ent factors. Not only is this conclusory allegation

completely insufficient to satisfy Appellant’s burden of demonstrating that his

sentence is improper, it is well-established that the weight to be given to each

enhancement and mitigating factor is left to the trial court’s discretion so long as
-19-

it complies with the purposes and principles of the 1989 Sentencing Act and its

findings are adequately supported by the record. State v. Zonge, 973 S.W.2d

250, 259 (Tenn. Crim. App. 1997); State v. Baxter, 938 S.W.2d 697, 705 (Tenn.

Crim. App. 1996); Hayes, 899 S.W.2d at 185. Therefore, we conclude that a ten

year sentence is entirely appropriate in this case. This issue has no merit.

Accordingly, the judgment of the trial court is AFFIRMED.

____________________________________

JERRY L. SMITH, JUDGE

CONCUR:

___________________________________

DAVID H. WELLES, JUDGE

___________________________________

THOMAS T. WOODALL, JUDGE