# FILED
February 24, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE DECEMBER 1998 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. NO. 01C 01-9709-CR-00401 Appellee, ) ) DAVIDSON COUNTY VS. ) ) HON. CHERYL BLACKBURN, ROSS C. AUSTI N, ) JUDGE ) Appellant. ) (Sexual Ba ttery)

FOR THE APPE LLANT: FOR THE APPELLEE: LIONEL R. BARRETT, JR. JOHN KNOX WALKUP Washington Square Two, Suite 418 Attorney General & Repor ter 222 Second Ave., North Nashville, TN 37201 DARYL J. BRAND Asst. Attorney General Cordell Hull Bldg., 2nd Fl. 425 Fifth Ave., North Nashville, TN 37243-0493 VICTOR S. JOHNSON, III District Attorney General SHARON BROX Asst. District Attor

ney General Washington Square, Suite 500 222 Second Ave., North Nashville, TN 37201-1649

OPINION FILED:

AFFIRMED JOHN H. PEAY, Judge2 O P I N I O N
On February24, 1997, the defendant was found guilty by a jur

y of sexual battery. The defendant was subsequently sentenced as a Range II multiple offender to fo ur years to be served i n the Tennessee Department of Correction. The defendant ’ s motion for a new trialwas denied by the trial cour t. The defendant now appeals and cont ends that the evidence was insufficient to support his conviction and that his sentence is excessive. After a review of the record and the applicable law, we affirm the judgmen t of the c ourt belo w.

The defendant was convicted of sex ual battery based on his i nvolvement with a sixteen-year-old employee. The defendant owned and operat ed a barber shop. On or about June 3, 1995, the defendan t, while passing out flyers, approached the victim and offered her

a job. The victim accepted the offer and on Monday, June 5, went to the defendant’s barber shop to begin her new job. According to the vi ctim, upon arrival she noticed slow music playi ng in thebackground. The defendant then show ed the victim his computer

and the handwritten pages to be typed. As the defendant was deciphering his handwritingfor the victim, he began to rub her le g. The victim to ld the defendant she would work for him, but she did not want him to touch her. At this point, someone knocked on the door and, after talking to the person for a mome nt, the defendant shut and locked the door. The defendant then w alked back tothe victim and began to touch her br easts. The victim jumped up, told th e defendant she was leaving , unlocked the door, and ran home. Thevictim notified the polic e and they set up a recorded p hone call to the defen dant. Du ring th e course of the phone call, the victim aske d the defendant why he had touched her breasts. The defendant answered, “[C]ause they look good to me baby.”3 The defendant contends that the evidence was insuff ic ien t to support a conviction for sexua l battery. The defendant argues that there was not enough evidence to prove the elements of force or coercion beyond a reasonabl e doubt.

A defendant challenging the suffici ency of the proof has the bu rden of illustratingto this Court why the evidence is insufficient to support the verdict returned by the trier of fact in his or her case. This Court will not disturb a verdict of guilt for lack of sufficie nt evid ence unless the facts contained in the record and an y inferences which maybe drawn from the facts are insufficient, as a matter of law, for a rational trier of fact to find t he de fendant guilty beyond a r easonable doubt. State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982).

When an accused challenges the sufficiency of the convic ting evidence , we must review the evi dence in the light most favor able to th e prosecution in determining whether “any rational trier

of fact could have found the essential elements o f the crime beyond a reasonable doubt.” Jackson v. Virginia , 443 U.S. 307, 319 (1979). We do not reweigh or re-evaluate the ev idence and are required to afford the State the strongest legitimateview of the proof contained in the record as well as a ll re asonable and legitimateinferences which may be drawn therefrom. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978).

The defendant

contend s that th ere was no evid ence of force or coercion and, as this is an essential element of sexual battery, his convi ction should be set aside and the cause remanded back to the trial court for the entry of an order of guilt as to the lesser i n cluded offense of simple assault. See T.C.A. §39-13-505(a) (1991) ; §39-13- 503(a)(1) (1991). However, there is evidence indicating that the defendant continued to4

touch the vic tim afte r she asked him to stop. He s ubsequently locked the doo r of the barber shop, walk e d up behind the victim, and s queezed her breasts “r eal hard.” The defendant was also much larger and taller t han the vi ctim. In light of the foregoi ng, a rational trier of fact could have found the ele ments of force or coercion beyond a reasonable doubt. As such, thi s contention is without merit.

The defendant next contends that the trial court erroneou sly applie d enhancementfactor fifteen and that, due to th is error, his sentence should be reduced from four to three years. When a defendant complains of his or her sentenc e, we must conduct a de novo review with a presumption of correctness. T.C.A. §40-35-401(d). The burden of showing that the sentence is improper is upon the appealing party. T.C.A. §40- 35-401(d ) S entencing Commission Comments. This presumption , however, “is conditioned upon the affirmative showing in the record that the trial court considered the sentencing principles and al l relevant facts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991).

The Sentencing Reform Act of 1989 established a number of procedur es to be followed in sentencin g. Th is section mandates the court’s consideration of the following: (1) The evidence, if any, received at the trial and the sentencing

hearing; (2) [t]he pres

entence report; (3) [t]he principles of sentencing and arguments as to s entencing alternatives ; (4) [t]he nature and characteristic s of the criminal conduct inv olved; (5) [e]vidence and information offered bythe parties on the enhancement and mitigating factors i n §§ 40-35-113 and 40-35-114; and (6) [a]ny statement the defendant w ishes to make in his own behalf about se ntencing. T.C.A. § 40-35-210.

I n addition, this section pr ovides that the minimum sentence with in th e5

range is the presumptive sentenc e. If there are enhancing and mitigating fact ors, the court must start at the

minimum se ntence in the range and enhance the sentence as appropriatefor the enhancement factors and the n reduce the sentence with in the range
as appropriate for the

mitigating factors. If the re are no mitigating fact ors, the court may set the sentence above the minimum in thatrange but still w ithin the range. The wei ght to be given each factor is left to the discretion of the tria l judge. State v. Shelton , 854 S.W.2d 116, 123 (T enn. Crim. App. 1992).

In the case at bar, the defenda nt was convic ted of a Class E felony as a Range II offender, which carries a sentencing range of tw o to four years. T.C.A. §40- 35- 112(b)(5). In determining the defendant’s sentence, the trial c ourt found four

applicable enhance ment factors. The court found that the def endant had a previous history o f criminal convictions

or criminal behavior

in addition to those necessar y to establish the appropriaterange. T.C.A. § 40-35-114(1). The court also found that the offense invol ved
a victim and was commit ted to gratify the defendant’s desire for pleasure or excitement. T.C.A. § 40-35-114(

7). The cour

t found that the

felony was

comm itted while the defendant was on parole for a prior felony conviction. T.C.A. § 40-35-114(13). The court further found that the def endant abused a position of priv ate trust. T.C.A. § 40-35- 114(15). The defendant only challenges the trial court’s applicatio n of the last factor.

The defendant contends that someo ne in th e position of an employer for
a short period of time is not i n a position of private tr ust. This issue is w

aived as the defendant has failed to cite any author ity to support his arg ument. Rules of the Court of Criminal Appeals of Tennessee 10(b); State v. Kil lebrew , 760 S.W.2d 228, 231 (Tenn. Crim. App. 1988).6 In the absence o

f waiver,the defendant’ s argume nt still fails. This Court has held that a position of private trust is vi olated when a defendant uses his or her supervisory

position to facilitate the co mmission of the offense. State v. Harris , 8 66 S.W.2d 583, 588 (Tenn. Crim. App. 1992). The defendant in the case at issue used his position as the victim’s employ er to lure her

into the barber shop, lock the door, and get close enough to her to commit sex ual battery. Therefore, the vio lation o f a private trust is an applicable enhancement factor in this case and the defendant’s contenti on i s without merit.
Accordingly, w e affirm the defendant’s conviction an d sentence.

______________________________ JOHN H. PEAY, Judge

CONCUR:

______________________________ JOSEPH M. TIPT ON, Judge

______________________________ NORMA McGEE OGLE, Judge