# FILED April 29, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE JANUARY SESSION, 1999 STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9801- CC-00031 ) Appellee, ) ) ) HUMPHREYS CO UNTY VS. ) ) HON. ROBERT E.BURCH DAVID J. FORRES TER, ) JUDGE ) Appe llant. ) (Direct Ap peal - Agg ravated Sexu al ) Bat tery)

FOR THE APPELLANT : FOR THE APPELLEE : TERRY J. LEONARD JOHN KNOX WALKUP 9 North Co urt Square Attorney Generaland Reporter P. O. Box 957 Camden, TN 38320 KIM R. HELPER Assistant Attorney General 425 Fifth Avenu e North Nashvill e, TN 37243-0493 DAN ALSOBROOKS Distri ct Attor ney General GEORGE SEXT ON Assistant Distri ct Attor ney Room 206 Wa verly, TN 37185
OPINION FILED ________________________ AFFIRMED JERRY L . SMI TH, J UDGE-2- 

## OPINION

In December of 1996, Appell ant David J. Forrester was indicted by the Hump hreys County Grand Jury f or attempted r

ape of a child and f

or aggravated sexual battery. On July 25, 1997, Appellant fi led a motion to suppress a pretri al statementthat he gave to state investi gators. The t rial cour t denied the motion after a hearing on August 25, 199 7. On A ugust 28, 1997, Appellant was convicted of aggravated sexual battery. After a sentenci ng hearing on December 9, 1997, the trialco urt s entenced Appell ant to a term of ten years i n the Tennessee Department of Corr ection. Appellant

challe nges both h is convicti on and his sentence, raisi ng the following i ssues: 1) whetherthe tri al court erre d when it admitted his pretrial sta temen t into evidence; 2) whether t he evidence was suf ficien t to support

his convi ction; 3) whether the t rial court shoul d have instructed the j ury on lesser included offenses, includi ng child abuse; 4) whether the t rial cour t’s respo nse to a questi on from the jury about the severit y of the char

ged offenses pr

ejudiced Appel lant; and 5) whether t he trialcourt imposed an excessive sentence. After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.

I. FA CTS

Sharon Stump testif ied that o n September 14, 1996, her car ti re went fl at in front of

the home of Ap pel lan t an d hi s wi fe, Jul ie F orr est er. As St ump approached the back door of A ppel lan t’ s ho me in order to use the tel ephone, she looked through some glass patio doors a nd saw Appellant rubbing his peni s on the buttocks of

Appe llant’s n aked four-ye ar-old daug hter. S tump subs eque ntly-3-

reported the i ncid ent to theTennes see Dep art ment of Hu man Services and to Julie Forrester.

On N ovember 20, 1996, Appel lant vol untaril y took a pol ygrap h test that ha d been arranged by his att orney. After the polygraph test had been administer ed, Appellant

participate d in a p ost-polygraph interview conducted by Agent Mike Smith of the Tennessee Bureau of Invest igation, Investi gator Ted Tarpley of t he district attorney

general’s

office, and Norma Williams of the Tennessee Department of Childr en’s Servi ces. During t his int erview, Appellant gav e a signed statement i n which he admitted that after he took his daughter out of

the bathtub on September 14, 1996, s he touched his peni s and he had an erectio n. Appellant

then admitt ed that whe n his nake d daughter lay down on the fl oor, he tookhis penis out an d rubbed it on h er buttocks for ap proximately two to five minute s in order to obtain se xual gratifica tion.

At trial , Appellant

testif ied that h is pretrial statement was untrue an d that the only reason he gave the statement was because his interviewers told hi m that if he told the m wha t they wanted to hear, he woul d get custody of his chi ldren back a nd he w ould rece ive coun seling inste ad of ha ving to ap pear in co urt.

II.ADMISSI ON OF APPELLANT’SPRETRIA L STATEMENT
Appellant

conte nds tha t t he trialcourt err ed when it admit

ted his pretrial statementinto eviden ce. Specifically, Appellant contends that the state ment was inadm issible because he was not prop erly Mirandized , the statement was given-4-

involuntarily, and th e state men t was o btaine d in viola tion of A ppella nt’s right to
coun sel.

A. Miranda
Appellant con tends that his pretrial statement was inadmissibl e because the police did not prop erly admini ster the Miranda warnings. Appel lant concedes thathe was given Miranda warnings befor e he tookthe polygraph test, ho wever, he cla ims th at the p olice sh ould have given t he Miranda warnings ag ain before he parti cipate d in th e post-p olygraph int erview.

In Miranda v. Ar izona , 384 U.S. 436, 479, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694 (1966), th e United States S uprem e Cou rt ruled that th e Fifth and Fourtee nth Amendmen ts’ prohibiti on against compelled self-i ncrimination requir es police officers, before ini tiati ng questioni ng, to advi se the putat ive defendant of his r ight to remain silent and his right to co unsel. S pecifically, Miranda requires police to inform the person bei ng questioned t hat (a) he has t he right to re main silent ; (b) any statement made may be used as evidence against him; (c) he has the ri ght to the presence of an a ttorney ; and (d ) if he ca n not a fford an attorne y, one w ill be appointed for him prior to questioning, i f he so desires. Id. , 384 U.S. at 444, 86 S.Ct. at 1 612.

Howeve r, police officer s are only r

equired to give Miranda warnings pri or to “custodi al inter rogation” which has been defined as a “formal arrest or restr aint
on freedom of movement of the degree asso ciated with a form al arrest.” Stansbury v. Califo rnia , 511 U.S. 318, 322–23, 114 S.Ct. 1526, 1528–29, 128-5-

L.Ed.2d 293 (199 4); State v. Bush , 942 S.W.2d 489, 499 (Tenn. 19 97). The United StatesSupr

eme Cour t has h eld that it is appropriate to app ly an objective test to determinewheth er a pe rson is in custody and therefore entitled to rece ive Miranda warnings. Cour ts must consider

the total ity of

the circ umstances of the interr ogation and inquire “how a reasonable man in the su spec t’s pos ition wo uld have understood his s itua tion.” Berkem er v. McC arty , 468 U.S. 420, 422, 104 S.Ct. 3138, 3151, 82 L. Ed.2d 317 (1984) ; s ee also Stansbury , 511 U.S. at 323– 24, 114 S.Ct. at 1529. In State v. Anderson , 937 S.W.2d 851, 855 (Tenn.199 6), t he Tenn essee Su preme C ourt expressly ad opted the ob jective analys is employ ed by t he United States Su prem e Court and adopted sev eral nonexclusive factors to aid in the objective asse ssm ent of w hethe r a reas onab le person would consider himself or

herself de prived of freedom of movement to a degree associated wi th a formal a rrest. Relevant factors in clude (1) t he time and locati on of the i nterrogat ion; (2)the durati on and character of the quest ioning; (3) the officer’s tone of voice a nd genera l demean or; (4 ) t he method of transportation to the place of qu estioning; (5) the nu mber of po lice officers presen t; (6) li mitations on movement or other f orms of restr

aint imposed dur ing the interrog ation; (7 ) in terac tions bet ween the offi cer and the pers on being questioned, includi ng the words spoken by the offi cer and the verbal or nonverbal responses of the pers on bein g ques tioned; (8) th e extent to which the person being questioned i s confronted with the of ficer’ s suspicions

of guilt or evi dence of guilt; and final ly (9) the extent to which t he perso n bein g que stione d is aware thathe or she is free to refrain from answering que stions or to end the i ntervi ew at wi ll. Id. The determination of whether an indiv idual is in custody is fact specific, and th e trial co urt sho uld assess the appl icabil ity of the relevant factors in making its fi ndings. Id. The tr ial cou rt’s dec ision w ill not be overtu rned b y this-6-

Court unless it appears there has been an abuse of the trial court’s discr etion and
a violation of the appellan t’s rights. State v. S mith , 868 S.W.2d 561, 570 (Tenn. 1993).
Considering the total ity of the circ umstances, we concl ude that the trial court did not ab use its discreti on in determi ning that Appellant was not in cust

ody when he gave his si gned statement. There is no realdispute i n this case t hat Appellant

was the one who first suggested that

he take a polygraph test and that he voluntarily took the test after it was a rranged by his atto r ney. Furt her, the record indicates that i t was Appellant’s parents , and not the poli ce, who transported Appellant to the assistant

distri ct attorney general’ s office where he tookthe polygr

aph test. Agent Smith testif ied at thesuppression hear ing that before he adm inistered th e polygra ph test, he advised Appellant of his Miranda rights and told App ellant that h e was fre e to leave at any time. Ind eed, the record containstwo forms si gned by Appellant in which he acknowl edged that he had been advised of his Miranda rights and had been advise d that he was fre e to leave whenever he d e sired. Agent Smith also t estifi ed that Appell ant never asked to leave at

any time. The r

ecord also i ndicates t hat the polygraph test and the post-po lygraph in te rview took plac e fr om ap proxi mate ly

1:0 0 p. m. t o 4: 30 p. m. and that duri ng this t ime, Appellant took at l east one break i n which he went outside with his pa rents to sm oke ciga rettes. Ag ent Sm ith also test ified that no
one ever thr eatened Appellant during the p olygrap h and post-poly graph interv iew
. Finally, once the inter viewhad been concluded , Appellant was allowed to leave the cou rthouse with his pa rents.-7- In short, we co nclude that the tri al court did not abuse its discret ion when it determined that Appellant wa s not “in custody” duri ng the post-polygraph interv iew in which he gave his signed statement. Because Appellant was not in custody, the poli ce were not requi red to readmini ster the M iran da warnings before c onduc ting the po st-polygra ph interview . This issu e has n o merit.

B. Voluntar iness of A ppellant ’s Statement
Appellant con tends that his pretrial statement was inadmissibl e because it was gi ven invol untaril y. Specif icall y, Appell ant clai ms that the statement was involuntary because he was sufferi ng from a headache and back pai n, he was threatened by

the poli ce, and he was promised that he would not goto jai l if h e cooperated.

Even though a statement was not given a s a resu lt of c ustodial interr ogation, the statementmust still be voluntary in order to b e adm issible. See Arizona v. Fulmin ante , 499 U.S . 279, 286 –88, 111 S.C t. 1246, 1252–53, 113 L.Ed.2d 302 (19 91). In order to be considered voluntary , the statement must not be extracted by “any sor t of threats or viol enc e, nor obtai ned by any dir ect or implied promises, however slight, nor by the exertion o f any imp roper influe nce.” Bram v. UnitedStates , 16 8 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. 19 80). However, “[a] defen dant’s subjective percep tion alone is not sufficien t to justify a conclusion of involuntari ness in the constitutional sen se.” State v. S mith , 933 S.W.2d 450, 455 (Tenn. 1996). Instead, “c oercive p olice activity is a n ecessa ry predica te to findi ng that a confess ion is not voluntary.” Id.-8- Wh ether or n ot a state me nt was voluntarily given is determined by examining the totality of the circu mstan ces. Kelly , 603 S.W.2d at 728–29 (Tenn. 1980). “A tri al court’ s determinati on that a confession was given k nowin gly and volunta rily is bindi ng on the ap pellate courts unl ess the defendant can show that the evidence preponderates agai nst the trial court’s ruling.” State v. Keen , 926 S.W.2d 727, 741 (Tenn. 1994). In additio n, the fi ndings of fact made by the t rial court at a hearingon a motion to suppr e ss will also be upheld unl ess the evidence prepon d erates o therwise
. State v. Odom , 928 S.W.2d 18, 23 (Tenn. 1996). Questions about wi tness credi bilit y and “resol ution of conflic ts in t h e evidence are matters entrus ted to the trial judge.” Id.
First, Appellant

claim s that h is state men t was in volunta ry beca use it was a result of

threats from Smith and Tarpl ey. Specif icall y, Appell ant testi fied at t he suppression hearin g that S mit h thre atened that if Appell ant did not confess, Appellant

would recei ve the maximum jailsentence. Appellant also test ified t hat Ta rpley threatened t hat if Appel lant didnot confess, Tarpley would con tac t Channel 5 News. Ho wever, Smith testi fied that no one had threat ened Appellant at any time. At

the close of

the hearing , the tr ial court stated th at it f

ound that Appellant

had b een u ntruthf ul in his testimony and that Appell ant had never been threatened. The evidence does not preponderate agai nst the trial court’s fi nding.
Second, Appe llant cla ims th at his st atem ent wa s involu ntary b ecau se it
was a result of police prom ises of leniency. Specifically, Appellant testifi ed at the suppression hearing that he was promised that if he confessed, he would rec eive counseling and wo uld n ot have to go t o jail . However, Smit h denied that A pp ellant

was promised counsel ing and test ified t hat inst ead, Appellant was-9-

advised thatSmith would recommend counsel ing if Appellan t coope rated. Sm ith did adm it that he told Appellant that if he did n ot cooperate , Smith wou ld just turn the matter over

to the di strict

attorney

and it might

be po ssible that thin gs wo uld go harder on Appellant. The trialcourt beli eved Smith’s version of t he facts and found t hat although counseling was ment ioned, i t was not condi tioned o n cooperation. We conclud e that the e vidence does n ot prepo nderate against the trialcourt’s findin gs of fact o n this issue . In addition, w e conc lude that Smi th’s statem ents about couns eling and the poss ibility of turning th e matte r over to the district attorney

did not render Appell ant’s statement invol untary. Indeed, the Tennessee Supreme Court has stated that Promises of leni enc y by state off icers do not render subsequent confessionsinvoluntary per se: The Fif

th A mendm ent

does not con demn all promis e-induc ed adm issions a nd con fessions ; it condemns only those which are compelled by promises o f lenien c y. The critical q uestio n is whetherthe behavior

of the state’s l aw enforcement off icial s was such as to overbear

petition er’s will to res ist and bring a bout c onfes sions not free ly self-determined. Smith , 933 S.W.2d at 455–56 (citations and internal quotations o mitted). In fact, the supreme court found that statements to t he defendant t hat he migh t not be prosec ute d if he told the trut h and that he def initely would be prosec uted if he refused to admit gui lt were not enough to render the defendant’ s confession involuntary because the promises were equivocaland f urther, “[a]dv ice to an indivi dual concerning t he conse quences of a ref usal to cooper ate is not objection able.” Id. at 456 . Sim ilarly, we conclude that Smith’s statements that there was a possibil ity t hat Appellant could recei ve counseli ng and that t he matter would be turn ed ove r to the d istrict atto rney if Appellant did no t cooperate w ere not “so coercive a s to overbear [A ppellant’s] will.” See id.-10- Third, Appellant

claims that

his statement was involuntary because he was sufferi ng from stress and from a severe headache and back p ain that was caused by Tarpley’s

instruct ion that Appel lant was not to take any

medication before the polygraph test. Although Tarpley admitted that he advi sed Appellant not to take any medication, there is no evidence th at Tarpley di d so in order to make Appellant

more susceptibl e to poli ce coercion. In an y case, we conclude that
w hile Appellant’ s physical and mental condit ion was certainly r elevant to th e determinati on of whether hi s statement was gi ven volunta rily , the totality of the circumst ances indicates that the sta temen t was volu ntary. Mo st impor tantly, i t is undisputed that Appellant was advi sed of his Miran da rights before the polygraph test began and Appellant signed a for m in which he acknowledged that he had be en given these righ ts and tha t he was voluntarily wa iving his rights . In ad dition, Appellant al so signed a form in which he acknowl edged that he had been advised that

he was free to leave whe never he de sired. Further, Appellant
was allowe d to roa m ab out at w ill and ta lk to his parent s during th e break between the polygraph test and the post- polygraph interview. U nder the totality of the circ umstances, we concl ude tha t th e eviden ce doe s not pre ponde rate against t he trialcourt’s finding that Appell ant’s statement was given voluntarily. This issu e has n o merit.
C. Right to Counsel
Appellant con tends that his pretrial statement was inadmissibl e because it was o btaine d in viola tion of h is right to coun sel.1 Appellan t’s argum ent imp lies that the S tate surre ptitiously cond ucted the polygraph test and p ostpolygraph interview without notifying Appellant’s counsel. However, as previously noted, the record indicat es that Appel lant’ s attorney helped make the arrangements for the poly

graph test.Further, the tri al court specifically found th at Appell ant’s at torney knew when the polygr aph test woul d take place and simply chose not

to atte nd. We note that Appellant’s counsel at the t ime he submitted to the polygr aph test is not t he same attorney who r epresented Appel lant i n the tri al and appealof this case.

-11- Initially, App ellant c laims that his Sixt h Amendment right to counsel was violated because his att orney was not pr

esent when he was questi oned by the state investigator

s. The law is cl ear that the Si xth Amendment right to counsel attaches to all critica l stages of a prosecu tion and that “onc e adversary proceedings have commenced against an i ndividual , he h as a r ight to l egal representat ion when the governm ent interrogates h im.” Bre wer v. Will iams , 430 U.S. 387, 401, 97 S.Ct . 1232, 1240, 51 L.Ed. 2d 424 (1977). I n Tennessee, “[j] udicial proceedings ar e considered initi ated, and thu s Sixth Am endm ent rights att ach, at the ti me an arrest warr ant issues, a prelimi nary heari ng is held ( if no arrest warrant is issued ), or an indictme nt or presentm ent is returned.” State v. Jackson , 889 S.W .2d 219, 222 (Tenn. Crim . App. 1993 ). In thi s case, ther e is no indicat ion in the reco rd that an y of t he se events had occur red before t he polygra ph test and post-polygr aph interview on November 20, 1996. Beca us e no judici al proceedi ngs had been init iated agai nst Appellant in t his ca se at the ti me he gave his statement, his Sixth Amendment ri ght to co unsel had not attache d and th us, was not violated
. See id. 1
Appellan t also clai ms that his Fi fth Amendment right to counsel under Miranda was violated be cause the State investig ators c ontinu ed to q uestio n him after he had i nvoked his ri ght to counsel . Specifi cally, Appellant testif ied atthe suppression hearing that he asked for hi s attorney as soon as the post- polygraph test began. However, Tarpley test ified that Appell ant never asked for an attorney until after he had a lready gi ven the statem ent. Furth er, Willi ams also testi fied2 Although it is not clear, Appel lant appar ently contends that

his ri ght to counsel

was also vi olated because while he

was partici pating i n the post-pol ygraph i ntervi ew, both of his parents questioned Tarpley about whethe r the ir so n neededan att orney . However, it is clear that Appel lant’s par

ents co uld no

t in voke 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- thatAppellant di d not ask for an attorney

until after he had al read y g iven the statem ent. The trial court beli eved the State’s wi tnesses and found t hat Appellant

did no t reque st an a ttorney until after he had given his statement and that as soon as Appel lant didask for an attorney , the interview was concluded. The e vidence does n ot prepo nderate against th is finding. T herefore , w e conclude that Appellant’s Fifth A mendm ent right to couns el under Mirandawas not viol ated. 2 This issu e has n o merit.

III . SUFFI CIENCY OF T HE EVIDENCE
Appe ll ant conten ds that the evidenc e was ins ufficient to su pport hi s convicti on. When an appellant chall eng es the s ufficien cy of the eviden ce, this Court is o bliged to revi ew that chal lenge accordi ng to certai n well-set tled principles. A verdictof guil ty by th e jury, approved by t he trialjudge, accr edits th e testimony

o f th e State ’s witne sses and re solves all conf licts in the testim ony in favor of the State. State v. Cazes , 875 S.W.2d 253, 259 (Tenn. 19 94). Alt hough
an accused is ori ginall y cloaked wi th a presumpti on of innocence, a jury verdict
removes this presu mption and rep laces it with o ne of gu ilt. State v. Tug gle , 639 S.W.2d 913, 914 (Tenn. 1982) . Hence, on appeal , the burden of proof re sts with Appellant

to dem onstrate the insufficie ncy of th e convict ing eviden ce. Id. On appe al, “the [S] tate is entitl ed to the strongest legiti mate view of t he evidence as well as all reason able an d legitima te inferenc es that m ay be dra wn there from.” Id
. Where the suffici ency of the ev idence is contested on appeal, the relev ant-13-

question for t h e reviewing cou rt is whether any ration al trier of fact could have found the accused gui lty of eve ry elem ent of th e offen se be yond a reaso nable doubt. Jac kso n v. Virg inia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). I n cond uctin g our e valuatio n of the convic ting evid ence , this Court is precl uded from reweighi ng or recon s idering the evidenc e. State v. Morgan , 929 S. W.2d 380, 383 ( Tenn. Cr im. A pp. 1996). Mo reover, this Court may not s ubstitute its own i nferences “f or those drawn by

the tri er of fact

from circumstant ial evidence.” State v. Matthews , 805 S.W.2d 776, 779 (Tenn. Cri m. App. 1990). Finally, Rule 13(e) of the Tennessee Rules of Appellate Pro cedure provides, “findings of gui lt in cr iminal actions whether b y the trial court or jury shall be set aside i f the evi dence is insuf ficien t to support

the findi ngs by the trier of fact beyo nd a rea sonab le doub t.”

In this case, Appella nt was co nvicted of a ggravate d sexua l battery. Under Tennessee law, a perso n commits aggravat ed sexual ba ttery when the person has unlawful sexual conta ct with a victi m who is less that thir teen yea rs old
. Tenn. Code Ann. § 39-13-504(a) (4) (1997). “Sexual contact” incl udes the intenti onal touchi ng o f the victim ’s butto cks if the touch ing ca n be re ason ably construed as being for the purpose of sexual a rousal or gratif icatio n. Tenn. Code Ann. § 39-13-501(2) , (6) (1997). When viewed in the light mostfavorabl e to the State, the evide nce in this c ase wa s clearly su fficient for a ratio nal jury to conclude that Appell ant had committed this offense. Stump testif ied that s he saw Appellant

rub his pe nis on the bu ttocks of the n aked four-ye ar-old fema le vi cti m. In additio n, the State introduced Appellant’ s signed statemen t in wh ich he admitted thathe had rubbed his peni s on the buttocks of the naked vi ctim in or der to obtain s exual gra tification.3 As part of hi s suffici ency of the evidence argument, Appellant alleges that the j ury ig nored the evide nce and b ase d its ve rdict o n pas sion and p rejud ice. H owe ver, A ppe llant h as fa iled to supp ort this conclusory

statement with citat ion to any thing i n the record. In fact,Appellant has fail ed to identify any reason in hi s brief f

or why the j ury wouldhave been prejudi ced against hi m. During the hearing on Appellant’s Motion f

or a New Trial,the tri al court st ated that

there was no evi dence that passi on or prejudice had played any part in the jury

’s verdi ct. There i s absolutely nothi ng in the r ecord that preponderates agai nst the t rial co urt’s f inding. -14- Appellant

e ssen tially argues that Stump’s testimony sho uld be disr egarded because she had a motive to lie and b eca use her test imony contain ed statem ents that were ei ther contr adicted by ot her parts of her testi mony or by the testimony of Appel lant and other w itnesses. Furthe r, Appellant esse ntially argue s thathis signed st

atement should be di sregarded because he testifi ed at tri al that the statement

was given under stress and he onl y made the sta teme nt in order to obtain custody of his c hildren. However, “[ t]he credi bilit

y of the witnes ses, the weightto be given their testim ony, a nd the re concili ation of conflic ts in t he evidence are matters e ntrusted exclusively to the jury as the triers of fact.” State
v. Cribbs , 967 S.W.2d 7 73, 793 (Tenn. 1998). It i s obvious that the j ury chose to believe Stump ’s testimo ny and c hose to reject Ap pellant’s tes timony. In short, it is clear

that when the evide nce i s viewed in the ligh t most favor able to th e State, a rationaljury coul d fi nd beyond a reasonabl e doubt that Appellant had
comm itted the offense of ag gravated sexu al battery. 3 This issu e has n o merit.

IV. FA ILURE TO INSTRUCT ON LESSE R OFFENSES
Appellant

conten ds that the trial court e r red when it f ailed to instruct the jury on t he lesser i ncluded offenses, parti cularly the offens e of chil d abuse.

Te nnessee Code Annotated secti on 40-18-110(a) provides t hat a tri al judge must charge the ju ry wi th all lesser grades or classes of an offense-15-

supported by the evi dence , without an y reques t on the pa rt of the defe ndant to do so. Ten n. Cod e Ann. § 40-18-1 10(a) (19 97). See also State v. Trusty , 919 S.W .2 d 305, 311 (Tenn. 1996) . However, t he Tennessee Supreme Court ha s he ld that err

or cannot be predi cated on a tr ial court’s fai lure to cha rge a lesse r included of

fense when the evidence cl early demonstr ates that the defen dant is guilty of a grea ter offense

. State v. Stephenson , 878 S.W.2d 530, 550 (Tenn. 1994). Furthe r, this C ourt ha s spe cifically held th at a trial cour t’s failure to instruct the jury on the lesser

included offense of

child abuse was not error when the evidence cl early showed t hat the defend ant had committed aggr av a ted sexual battery. State v. Blanton , 926 S.W .2d 953, 960 (Tenn. Crim . App. 1996 ). In order to pr

ove that Appel lant had committed aggravated sex ual batt ery, th e State had to establ ish that App ellant in tentional ly touched t he buttocks of the four-ye ar-old victi m for the purpose ofsexual arousalor grati ficati on. Tenn. Code Ann. §§ 39-13-501(2) , (6), -504(a)(4)(1997). The evi dence in thi s case, incl uding Appe llant’s own s tatem ent, cle arly esta blishe d that A ppella nt com mitted this offense and nothin g less. Thus , the trial c ourt did not err w hen it failed to i nstruct the jury on any lesse r included offenses . This issu e has n o merit.

V. THE T RIAL COURT’S RESP ONSE TO A QUEST ION FROM THE JURY
Appellant

conte nds tha t the tri al court’ s response to a quest ion from the jury resulted i n undue prejudice. The record indi cates that during deli berations, the jury returned wit h 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 s evere. Do not concern your sel ves with t hat. Concern yourselves wi th which of the charges fit the facts a nd then let the chips fall where t hey may. Is t hat suffic ient expl anation? Appellant

cites Veal v. Sta te , 196 Tenn. 443, 268 S.W.2d 345 (1954), for the propos ition that the tria l judge sh ould no t, through action or word, indi cate any conclusion as to the gui lt or i nnocence of the acc used. However, Appell ant has failed to explain how this co mme nt from the trial court could be co nstrued as a comment on the st rength o f th e State’s ev idence. I ndeed, it is evident that the trial court was no t comm enting on the e vidence. Rath er, the trial court mere l y encouraged the jury

to consider

the facts

and apply the facts to each of the charges to see whether the proof establ ished guilt for either charge, r egardless of which c harge w as the m ore serio us. This issue ha s no m erit.

VI. LENGTH OF SENTEN CE
Appellant

con t ends that t he trialcourt err oneously imposed a l onger sentence than he deserves.

“When reviewi ng sentencing i ssues . . . includi ng the granting or denial of probation and the lengt h of sentence, the appellate co urt shall conduc t a de novo review on the record of such issues . Such r evi ew shall be conduc ted with a presumption thatthe determinat ions made by the cour t from which t he appeal is taken are correct.” Ten n. Code A nn. § 40-3 5-401(d ) (1997). “However, t he presumption of correct ness which accompanies t he trialcourt’s ac tion is conditi oned upon th e affirma tive show ing in the re cord tha t t he tr ial court considered the sentenci ng princi ples and a ll relevant fac ts and circ umsta nces.”-17-

State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991 ). I n conducti ng our rev iew, we must consider al l the evi dence, the pres entence report , the sent encing princ iples, the enhancing and miti gating fac tors, ar guments of counsel, the appell an t’ s statements, the nature and character of the offens e, and the appell ant’s pot ential forrehabili tation. Tenn. Code Ann. §§ 40-35-103(5), -210( b) (1997 & Supp. 1998); As hby , 823 S.W.2d at 169. “The defendant has the burden of demonstrating that the sentence is improper.” Id. Beca use th e reco rd in this
case indicates that th e trialcourt properly consi dered the sentenci ng princi ples and all releva nt facts and c ircum stanc es, ou r review is de novo wi th 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 i s between eight and twelve years. Tenn. Code A nn. § 40-35-1 12(a )(2) ( 1997). When both enhancement and mitigati ng factors ar

e applicabl e to a sentence, the cour t is directed to begin w ith the minimum sentence, enhance the sentence within t he range as appropriate for t he enhancement factor s, and then reduce the sentence wi thin the r ange a s appropriate for the mit igating factors. Tenn. Code Ann. § 40-35-210( e) (1997).

In sentencing Appel lant to a term of ten years, the t rial court found that enha ncem e nt factor

(1) appli ed because Appellant had a histor

y of cri minal convicti ons or criminalbehavior i n additi on to those necess ary to establish t he approp riate sentencing r ang e. See Tenn. Code Ann. § 40-35-114( 1) (1997). The trialcourt con cluded that this facto r was en titled to little weigh t. The trial court also found that enhancement factor (15) applied because Appel lant had abused-18-

a position of private trust in a way that

signif icantl y facil itated the commission of the off ense. S ee Tenn. C ode Ann . § 40-35-114 (15) (1997). T he trial court concluded that thi s factor was entitled to signif icant wei ght. The tr ial court then considered several miti gating fac tors proposed by

Appellant, but found t hat the only mitigati ng factor t hat applied was that Appellant had some mental problems. See Tenn. Code Ann. § 40-35-113( 13) (1997). The trialcourt c onclu ded th at this mitigating factor wa s entitled to little w eight.
Appellant

does n ot challen ge the trial co urt’ s applica tion of the two enhancement factors, an d we co nclude that they w ere corre ctly applied
. Indeed, the record indicates that enhancement f actor (1) applied because Appel lanthas previousconvicti ons for marij uana possession and for drivi ng under the influence of an intoxi cant. We also conclude that enhancement factor (15) applied because as the victi m’s f a ther charged wi th her care and control, Appellant abused his posit ion of privat e trust in a man ner tha t significa ntly facilita ted his
c ommission of the offens e. See State v. Hayes , 899 S.W.2d 175, 187 (Tenn. Cri m. A pp. 1995) . Appellant doe s not contend that the trial court should h ave applied any additi onal miti gating fac tors, and we conclude that no additi onal mitigati ng factors applied i n this case.
Essentially, Appellant’ s sole argument i n regard to hi s sentence is that the trialcourt fai led to gi ve adequate weight to the mit igating f ac tor as bala nced against the enh ancem ent f actors . Not only is thi s conclusory

allegat ion compl etely insuffic ient to s atisfy A ppella nt’s bu rden o f dem onstra ting tha t his sentence is improper, it is well-established t hat the weight to be given to ea ch enhancement and mitigat ing factor is left to the trial court’s discr etion so l ong as-19-

it compli es with th e purposes and princi ples of t he 1989 Senten cing Ac t and its findings are ade quately su pported by the rec ord. State v. Zonge , 973 S.W.2d 250, 259 (T enn. C rim. App . 1997); State v. Baxter , 938 S.W.2d 697, 705 (Tenn. Cri m. App. 19 96); Hayes , 899 S.W.2d at 185. Therefore, we conclude that a ten year sen tence is e ntirely appr opriate in th is case. T his issue has no merit.

According ly, the j udgment of t he tr ial cour

t is AFFIRMED
.

____________________________________ JERRY L . SMI TH, J UDGE

CONCUR:

___________________________________ DAVID H. WELLES , JUD GE

___________________________________ THOMAS T. WOODALL, J UDGE