The transcript reflects that this witness’ name is phonetically spelled. Other documents within the record 1

indicate her last name as “Tew.”

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs October 15, 2003 

STATE OF TENNESSEE v. CARLOS SALVADOR ANGEL, JR.

Direct Appeal from the Criminal Court for Davidson County

No. 2001-B-858 Cheryl Blackburn, Judge

No. M2002-02982-CCA-R3-CD - Filed February 27, 2004

The Appellant, Carlos Salvador Angel, Jr., was convicted of aggravated sexual battery by a Davidson

County jury and sentenced to ten years in the Department of Correction. On appeal, Angel argues

that: (1) the admission oftestimony by his former girlfriend, who was not the victim in this case, was

irrelevant and unduly prejudicial and (2) the ten-yearsentence imposed was excessive. After review

of the record, the judgment of conviction and sentence are affirmed. 

Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed.

DAVID G. HAYES, J., delivered the opinion of the court, in which JERRY L. SMITH, J. and THOMAS

T. WOODALL, J., joined.

Cynthia F. Burnes, Nashville, Tennessee, for the Appellant, Carlos Salvador Angel, Jr.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Thomas E.

Williams, III, Assistant Attorney General; Victor S. (Torry) Johnson III, District Attorney General;

and Brian Holmgren, Assistant District Attorney General, for the Appellee, State of Tennessee.

OPINION

Factual Background

On the evening of June 18, 2000, Christina Tu agreed to babysit her friend’s ten-year-old 1

daughter. Present at Ms. Tu’s apartment that evening was the Appellant, who was Ms. Tu’s

boyfriend, Ms. Tu’s two children, the Appellant’s two children, and the ten-year-old victim.

Eventually, everyone retired to their bedrooms, with the exception of the victim, who remained in

the living room watching television. 
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After everyone went to bed, the Appellant returned to the living room wearing only his

boxers and a shirt. After checking his computer e-mail, he laid on the couch. At this time, the

victim was lying on a second couch, still watching television. The Appellant asked the victim to sit

on his lap, and she complied. The Appellant then asked if she had ever seen a man’s “privates.”

She responded, “no.” He then asked the victim if she wanted to see a man’s “privates.” Again, she

responded, “no.” The Appellant then cupped the victim’s chin in his hand, turned her head toward

him, and asked if she wanted to kiss him. At this point, the victim turned away from the Appellant.

The Appellant proceeded to place his hand under the victim’s shirt and began rubbing her

stomach. Gradually, the Appellant moved his hand upward until he was fondling her breasts. This

behavior continued for approximately five minutes. The Appellant then removed his hand and

obtained the victim’s promise that she would not repeat what happened. The victim then returned

to the other couch. Eventually, Ms. Tu came into the living room, and she and the Appellant

returned to her bedroom. 

The next morning the victim informed her mother of the events of the prior evening. Based

upon the ensuing police investigation, the Appellant was indicted by a Davidson County grand jury

for one count of aggravated sexual battery, a class B felony. After hearing the evidence at trial, the

jury returned a verdict of guilty to the charged offense on May 21, 2002. 

On August 30, 2002, the trial court, applying only the enhancement factor for a previous

criminal history and no mitigating factors, sentenced the Appellant to ten years in the Department

of Correction. The Appellant subsequently filed a motion for new trial, which was denied on

November 1, 2002. This appeal followed. 

Analysis

1. Admission of Testimony

The Appellant challenges the trial court’s ruling permitting Ms. Tu to testify at trial regarding

the particular manner in which the Appellant sometimes kissed her, in view of the fact that the victim

testified that he had attempted to kiss her in a similar manner. During a jury out hearing, the witness

described the specific manner in which the Appellant would kiss her. In concluding that the

proffered testimony was admissible, the trial court found that kissing or the method of kissing is “not

a character trait, [but] a behavior.” Moreover, the court concluded:

 I don’t quiet honestly see any prejudice here. There’s just the fact that he had a way

of doing things. . . . [Victim] describes a certain behavior. . . . Ms. Tu describes that

in listening to what [Victim] said and found it striking, because she had witnessed or

felt the same behavior. So for that reason I’m going to allow it.

Ms. Tu’stestimony before the jury established that, when kissing her, the Appellant “would

take his hand to my face and turn it toward him.” She demonstrated before the jury how the
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Appellant would cup her chin with his fingers when turning her head. She testified that this made

her feel “uncomfortable.” She also explained that the Appellant never kissed her in this manner in

front of the victim. The Appellant asserts that Ms. Tu’s testimony “was irrelevant, and unduly

prejudicial to the [Appellant,] and should not have been admitted under Rules 401, 402, 403, and

404 of the Tennessee Rules of Evidence.”

Preliminarily, we note that “[t]he admissibility of evidence is generally within the broad

discretion of the trial court . . . [and that] absent an abuse of that discretion, the trial court's decision

will not be reversed." State v. Edison, 9 S.W.3d 75, 77 (Tenn. 1999) (citing State v. Mcleod, 937

S.W.2d 867, 871 (Tenn.1996). Admissible proof must satisfy the threshold determination of

relevancy mandated by Tennessee Rule of Evidence 401, which defines relevant evidence as that

"having any tendency to make the existence of any fact that is of consequence to the determination

of the action more probable or less probable than it would be without the evidence." Tenn. R. Evid.

401. Rule 403 adds that relevant "evidence may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by

considerations of undue delay, waste of time, or needless presentation of cumulative evidence."

Tenn. R. Evid. 403. Finally, Rule 404 deals with "character evidence." Subsection (b) of this rule

provides that "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character

of a person in order to show action in conformity with the character trait." 

Generally, evidence of conduct by a defendant involving a person other than the victim is

inadmissible as being irrelevant. This general rule, however, is not without exception. One such

exception involves habit and routine practice evidence. Rule 406, Tennessee Rules of Evidence,

provides in relevant part:

Evidence of the habit of a person . . . whether corroborated or not and regardless of

the presence of eye-witnesses is relevant to prove that the conduct of the person . .

. on a particular occasion was in conformity with the habit or routine practice.

Tenn. R. Evid. 406(a). Habit evidence is defined under the Rule as “a regular response to a repeated

specific situation.” Tenn. R. Evid. 406(b).

The Appellant argues that the witness’ testimony constituted character evidence and, thus,

violated Rule 404, Tennessee Rules of Evidence. While the distinction between character and habit

evidence is often blurred, we agree with the trial court that the evidence presented was not character

evidence but was habit evidence.

Character is a generalized description of one’s disposition, or of one’s disposition in

respect to a general trait, such as honesty, temperance, or peacefulness. ‘Habit’ . . .

is more specific. . . . A habit . . . is the person’s regular practice of meeting a

particular kind of situation with a specific type of conduct. . . . 

Fed. R. Evid. 406, History; Ancillary Laws and Directives.
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Nonetheless, habit evidence must still be relevant. We conclude that the witness’ testimony

regarding the Appellant’s method of kissing was relevant to show that the Appellant attempted to

kiss the victim on this occasion, which was an issue in dispute. At trial, the Appellant denied ever

attempting to kiss the victim or having any type of sexual contact with her. Accordingly, we find

this issue without merit.

2. Sentencing 

As his second issue, the Appellant asserts that the trial court imposed an excessive sentence

based upon the application of only one enhancement factor. When there is a challenge to the length,

range, or manner of service of a sentence, it is the duty of this court to conduct a de novo review with

a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-

401(d) (2003). The burden is on the Appellant to show the impropriety of the sentence. Tenn. Code

Ann. § 40-35-401, Sentencing Commission Comments. 

The Appellant was convicted of aggravated sexual battery, a class B felony, for which the

appropriate sentence range is eight to twelve years. Tenn. Code Ann. § 40-35-112(a)(2) (2003). The

presumptive sentence to be imposed by the trial court for a class B felony is the minimum sentence

within the applicable range unless there are enhancement or mitigating factors present. Tenn. Code

Ann. § 40-35-210(c) (2003). The weight given to each factor is left to the discretion of the trial

judge. State v. Shelton, 854 S.W.2d 116,123 (Tenn. Crim. App. 1992). 

In sentencing the Appellant, the sole enhancement factor found by the trial court was that the

Appellant had a previous history of criminal convictions or criminal behavior. See Tenn. Code Ann.

§ 40-35-114(2) (2003). Application of this factor was based upon the Appellant’s one prior

conviction for misdemeanor child abuse. The record established that the Appellant was indicted for

felony child abuse, but he entered into a negotiated plea agreement, and was convicted of

misdemeanor child abuse on May 22, 2000. The trial court noted that the instant offense was

committed only twenty-seven days after pleading guilty to child abuse and this charge occurred while

the Appellant was on probation. Moreover, based upon the proof presented at the sentencing

hearing, regarding the Appellant’s child abuse conviction, the trial court found the physical injuries

inflicted by the Appellant upon his minor son were extensive and characterized the conduct of the

Appellant as egregious. Accordingly, the trial court afforded this enhancement factor substantial

weight and sentenced the Appellant to ten years in the Department of Correction. The Appellant

does not dispute that application of this factor was proper. Rather, he alleges that the trial court

improperly weighed the factor in enhancing the sentence by two years. 

The Appellant’s argument is misplaced. There is certainly no prohibition against using a

prior misdemeanor conviction to enhance a sentence, and the trial court may exercise a certain

amount of discretion in setting an appropriate sentence. When the court follows the sentencing

procedures, its determination is clothed in a presumption of correctness. Our review of the record

in this case reveals that the trial court has complied with the Sentencing Act and that its findings are

adequately supported by the record. Given the nature and circumstances of the Appellant’s prior
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misdemeanor conviction, we conclude, upon de novo review, that a sentence of ten years is justified

in this case. This issue is without merit. 

CONCLUSION

After review, we find that the trial court did not err in admitting the complained of

testimonial evidence or in sentencing the Appellant. Accordingly, we affirm the conviction and

subsequent sentencing decision. 

___________________________________ 

DAVID G. HAYES, JUDGE