### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE January 16, 2002 Sess

ion

STATE OF TENNESSEE v. GREGORY SCOTT PAYNE
Direct Appeal from the Criminal Court for Davidson County

No. 99-D-2838 Walter Kurtz, Judge

No. M2000-02900-CCA-R3-CD - Filed April 30, 2002

Defendant, Gregory

Scott Payne, was indicted by a DavidsonCounty Grand Jury for one count of sexual battery, one count of attempted rape, and two counts of rape. Following a trial, the jury found Defendant

guilty of one count o

f sexual battery, a Class E

felony, as a

lesser-included offense of one of the rape charges,

and not guilty of the remaining offenses. The trial court subsequently sentenced Defendant

as a standard Range I offender to two years in confinement. In this appea l, Defendant asserts that

(1) the evidence was insufficient to support his conviction, and (2) the trial court erred by denying his motion to

strike the victim’s testimony or declare a mistrial (based on the failure of the police to produce the taped recording of the victim’s statement). Defendant also contends that the trial court erre

d by imposing the maxi

mum sentence leng

th and by denying him probation or any other form of alternative sentencing. After reviewing the record, we affirm the judgment of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgmen

t of the Criminal C

ourt Affirmed.

T HOMAS T. W OODALL , J., delivered the opinion of the cour

t, in which J ERRY L. S MITH and R OBERT W. W EDEMEYER , JJ., joined.
Fannie J. Harris, Nashville, Tennessee, for the appellant, Gregory Payne.

Paul G. Summers, Attorney G eneral and Repor

ter; David H. Findley, Assistan

t Attorney Gener

al; Victor S. Johnson, III, Dis

tr ict Attorney General; and Bernard F. McEvoy, Assistant District Attorney General, for the appellee, State of Tennessee.-2- OPINION

FACTUAL BACKGROUND

The indictments in this case resulted from allegations made by A.G. (we will use the initials of the minor victim)

against her cousin’s boyfriend, the Defendant. Specifically, A.G. alleged that Defendant

raped her three times during the summer of 1999: June 19 th , on or about June 29 t h , and July 3 rd . A.G. was fourteen years old at that time.

A.G. testified at trial that she resided in Lewisburg with her mother, stepfather, and sister, Sherry, while school was in session. Duri n g the summertime, A.G. and Sherry visited different relatives, usually aunts, and stayed with them for approximately a month. In 1999, the girls spent from June 8 th to July 4 th with their twenty- one-year-old c

ousin, Mercresha

, in Nashville. Six other persons also shared the two-bedroom apartment that summer: A.G.’s aunt, Regina, who wa s als o Mercresha’s mother; Mercresha’s boyfriend, Defendant; and Cameron, Tanesha, Savon, and Tony, four other childr en who r anged in ages from approximately eight years to ten months old. The yo ungest chil d, Tony, was the only child parented by Defendant and Mercresha. Mercresha, Defendant,

and Tony slept in one bedroom. A.G., Sherry, and Aunt Regina slept in the living room. The remaining thr

ee children slep

t in the second bed

room.
A.G. testified that Mer

cresha went out o

n the weekends,

usually to clubs with her mother or her friends. Defendant had only accompanied her one time that A.G. knew of. Usually, he would stay at home with the children, and, when he did, he was the only adult present. It was on three such occasions that Defendant “had sex” with A.G.
According to A.G., the first time occurred on June 19, 1999. (She said that she recalled the date because it happened on a Saturday night, a week or two after she arrived in Nashville.) A.G. had fallen asleep on the couch. She was wearing a long T-shirt and panties, with a blanket covering her. Other children were also sleeping in the living room at the time, including Defendant’s daughter, Amanda, who was visiting for Father’s Day. A.G. awoke when Defendant began touching her chest area. A.G. told him to stop, but he did not. Instead, he “opened her legs” and pulled off her panties. Next, Defendant got on top of her. Her hands were pinned to her head by Defendant’s hands. He then “stuck

his thing in” but pulled it out after she said “stop” a few more times. A.G. claimedthat it felt as though something were “stabbing” her. When he finished, he went upstairs. Later, he returned and asked her whether she planned to tell Mercresha. A.G. replied affirmatively. Defendant

said, “If you tell, you’ll hurt the baby because you’ll break up me and Cresha.” A.G. then
a greed no t to tell anyone “this time.” She testified that she wanted to inform someone of what Defendant

had done, but did not want the baby, Tony, to grow up without a father. The prosecutor then asked whether

A.G. was alone when

this incident occurred. A.G. responded that she was alone, except for five-year

-old Tanesha, wh

o did not wake up. She claimed that all of the other children had gone upstairs (contradicting earlier testimony).-3-

A.G. testified that the second incident occurred on June 29 th or 30 th
, in the upstairs bedroom generally used by the three younger children (the “baby’s room”). She recalled the date because she had been to a concert earlier that week. A.G. was sleeping in the baby’s room, rather than the living room, on that particular evening because Sherry had requested the couch. Mercresha had

gone to
a club to pick up Regina, a nd the other childr

en had fallen asl

eep watching tel

evision downstairs

. Defendant

entered while A. G. was sleeping, w oke her up, and in

stru cted her to get onto the floor because “the bed was too lo

ud.” Next, he dire

cted her to

“open her legs.” A.G. told him to stop and pushed his hand away, but Defendant did not comply. A.G. was wearing a T- shirt and pink panti es. Defendant

removed her

panties and “stuck his penis out again.” What Defendant was doing knocked the wind out of her and hurt for a while t his time because he “moved up and down” and “stayed longer.” She explained tha t he did not move much

the first time. A.G. also testifiedthat “wet stuff”
came out of Defendant’s penis, which ended up on her panties be

cause Defendant wiped himself off withthem when he was through. After Defendant left the room, A.G. went into the bathroom and cleaned herself with a wet rag. The pinkpanties lay in the dirty clothes basket where Defendant threw them.

A.G. testified that the third incident occu rred on July 3, 1999. Mercresha had gone out earlier that evening and h

ad not returned y

et. The other chi

ldren were slee

ping downstairs.

A. G. had just taken a shower and fallen asleep in the baby’s room. She was wearing a nightgown and red panties. Defendant came into the room and woke her up. He then command ed her to take her panties off and get on the floor again. She took off her panties and sat back onto t he bed. Next , Defendant

pulled out his penis and asked h er to perform fellatio on him. When A.G. refused, Defendant

said, “Well,

play with it,” and she declined. So Defendant told her to get onto the floor and then “stuck his thing inside of [her] again.” H

e covered her m

outh to keep her qu

iet. She saw “wet stuff” come out of

his penis again. This time, he wiped himself off with a shirt which had been lying on the floor nearby. When Defendant finished, A.G. cleaned herself in the bathroom with a wet rag. A.G. testified that shenever informed anyone that the above incide

nts had occurre

d because Defendant

frightened her.

She further state

d that she did not w

an t to have sex with Defendant or consent to same.

On July 4 th , A.G. and her sister returned to

Lewisburg to attend a cookout held by one of her aunts. The en tire family was invited , and Mercresha

drove everyone

but Tony to the festi

vities. A.G. learned that

her thirteen-year-old cousin, Megan (Mercresha’s sister), had told Defendant she “loved” him

in a telephone conversation earlier that day. A.G. warned Megan that she should be careful about what she says to Defendant. A.G. told Megan that her warning was based on “experiences

” she has had with him

. A.G. testi fied that Megan must have informed her mother, Regina, of their convers

ation, because Re

gina came to her later and asked what happened. A.G. told her only that Defenda

nt had to uched her. When they arrived at A.G.’s home sometime after midnight, A.G. told her mother the “whole story.” Her mother then reported the incide nts to the Nashville police.

A.G. further

testified that the next day, July 5, 1999, she and her mother returned to Nashville for a medical ex

amination at Gene

ral Hospital. A.G. had not showered since the third incident on-4-

July 3, 1999. Later, A.G. assisted her mother with the laundry chores. While they were separating the dirty laundry she had brought back from Nashville, A.G. discovered the pink and red panties she had worn during the second and third incident with Defendant. Her mother bagged them and later gave them to the police. A.G. identified the two pairs of panties p

resented to her a

t trial as the same panties worn duri

ng the incidents an

d subsequently turn

ed over to the auth

orities.
During cross-examinat

ion, A.G. testifie

d that sh e and her

sister had searched Mercresha’s apartment to collect their dirty clothing prior to departing Nashville and theydiscovered their clothes in numerous places.

The laundry they b

rought home was not

se parated in a ny way, but mixed together in a big plastic bag. Whenquestioned about her warning to Megan, A.G. testified that she cautionedher because she was afraid Defendant “might try something on her.” A.G. also reiterated that she kept quie t about Defendant’s conduct to keep the family together. A.G. grew up without
a father and did not want Tony to have the same experience. A.G. stated that it had occurred to her that a person who did things similar to whatDefendant did to her could conceivably go to jail; she had learned this from television and the movies. However, she did not believe that it

would actually happen to Defendant, until a man named Detective Mann told her so at the hospital. Instead, she had assumed that Defendan t would receive a warning of some so

rt and that he and M

ercresha would p robabl y break up. A.G. de nied that she was a

ngry with Defend

ant, prior to the th

ree incidents where he raped her.

A.G. testified that she recalled talking to De tecti ve Mann while at the hospital on July 5, 1999. Her mother and stepfather were also pre sent. She told Detective Mann that she had been rap ed by Defendant and gave him the dates of the incidents, but she did not furnish hi m with an y details. On the Friday following her return home, A.G. gave a statement to Detective Carter in the kitchen of her home. She recalled that he took notes and that a tape recorder was running the entire time they spoke. When s

he was finished wi

th her statement,

Detective Carter played the complete statement back to her and asked her questions about various things she said. He did not explain why he had replayed the tape and did not state that he had concer ns to her about anything she said. Rather, he pointed out

which parts were “important,” asking her whether she was certain it happened that way. He informed

her that the tape would be used in court. According to A.G., he did notrerecord any parts of her statement. If something was unclear, he made a notation on paper. Detective Carter took with him the two pairs of

panties that she a

nd her mother had

discovered in

the laundry.
During redirect examination, the prosecutor asked A.G. whether her testimony in court that day differed in any respect wi th the stateme nt she gave Detective Carter in July 1999. A.G. answered, “No, not really.” On recross-exa

mination, Defend

ant’s counsel que

stioned A.G. as to what she meant by “not really.” She responded “I told him the same story I told y ou all. It’s the same.” Defendant’s counsel then asked her, “Could you have told him something different?” A.G. replied, “No. That’s what happened, the same thing I told you all.”

In June 1999, Detective Ron Car ter worked in

the investigative division of Youth Services for the Metro Police De

partment in

Nashville. This division investigates allegations concerning the physical and sexual abuse of children, and he was the investig ator in A.G.’s ca se. Acting in this-5-

capacity, Detective Carter first spoke with Ms. Hayes, A.G.’s mother, over the telephone. Ms. Hayes informedhim that she possessed the two pairs of panties worn by A.G. during the se xual assault. He instructed Ms. Hay

es to place them in

to a paper bag unt

il he had anopportunity to retr ieve them. After collecting the panties, he delivered them to theTennessee Bureau of Investigation’s crime lab to be analyzed for presence of spermatozoa. At a later point in the investigation, Detective Carter also delivered to the crime lab a rape kit and samples of Defendant’s blood.
During cross-examination, Detective Carter admitted that he interviewed A.G. and that he tape recorded

the interview session. However, he was uncertain of the tape’s location at that time. The police were looking for it. Detective Carter also conceded that numerous other witnesses had been interviewed in co

nnection with this c

aseand those intervie

ws were also

tape recorded, but none of those tapes were missing.

Suzanne Ross, a pediatric nurs e pract itioner, testified that she worked at the “Our Kids Center” (“Center”) located at 1900 Hayes Street in Nashville. The Center’s function is to conduct medical evaluations of children when allegations of sexual abuse ar

e involved. Ms. Ross

examined A.G. on July 5, 1999 in the emergency room of Gene ral Hospital in Nashville. She testified that child victims of sexual abuse are typically seen at the hospital, rather than the Center, wh en th e allegedsexual abuse had occurred within 7 2 hours. This is because forensic evidence may be collected and prophylact ic treatment for pregnancy and/or sexually transmitted diseases might be required, all of which cannot be done at the Center. In A.G.’ s case, Ms. Ross examined the genital
area and collected a “rape kit.” Collecting a rape kit requires that theexaminer swab the internal and external areas of A.G.’s vagina with a Q-tip. The evidence is then analyzed by the TBI

at a later date to determine whethe

r semen and sperm

or disease were

present, although the success rate for finding sperm typically plummets after eight to twenty-four hours has passed.

Ms. Ross testified that the visual examination of A.G.’s genital area revealed two abraded areas, which could also be described as “irritations of the skin.” (The examination was normal in all other respects.) One abrasionwas located at the junction of the labia and minora; the other was near the posterior

fourchette. Anatomically, these structures are classified as “external genitalia.” A.G.’s hymen was intact, yet penile penetration does not necessarily tear the hymen. When asked whether penile penetration could have occurred in her case, Ms. Ross responded that “it could have.” However, other things could also have caused the abrasions. The abrasions were classified as “nonspecific,” which means that they could have resulted from intense scratching of t he area, soap residues, or perfume, rather than a penetrating injury. The findings in this case were more consistent with“vulva contact, ” as opposed to “true vaginal penetration,” but this “does not mean that vaginal penetration did not occur. ” She testi fied that A.G. did n ot complain that she

had previously experienced a

ny itching or discom

fort.
During cross-examination, Ms. Ross testifiedthat the examination of A.G.’s vagina revealed
no tears, redness, bruising, or any other evidence of internal penetrating injury. She also testified that, in fact, vaginal p

enetration can o

ccur without any p

hysi cal s igns. According to Ms. Ross, normal exams are more common than those which reveal a significant amount of tearing and-6-

bruising, and, even after forcible rape, no signs of physical injury may be present. A.G.

reported to Ms. Ross that she had been raped three times and gave specific da

tes of the inciden

ts. She also said that she “felt something wet entering into her.”
Upon redirect examination, Ms. Ross testified that her findings w ere not inconsiste

nt with A.G.’s account of what hap pened b etween her and Defendant, namely, full penile penetration on three different occa

sions. During rec

ross-examination

, Ms. Ross also testif

ied that n one of

the physical findings were indicative of penetration trauma.

Michael Alexander Turbeville, an analyst wor ki ng in the serology DNA unit of the TBI’s crime lab, testified that he was asked to examine the evidence in A.G.’s case. In add i tion to a vaginal swab and microscope slide, the sexual assault kit received by the crime lab contained a pair of pink panties and blood sample from the victim. Subsequent testing revealed no evidence of sperm
on either the swab or the microscope slide. By contrast, the pink panties yielded positive results for
semen following a presumptive test. The crime lab then acquired a sample of Defendant’s blood. The presence of semen and sperm were confirmed, and the DNA in the sperm were an “exact match” to that of Defendant. Other material collec ted fr om the panties, referred to as a “non-sperm fraction,” matched the victim’s. This indicated that the panties belong

ed to or had been worn by her. In addition, D NA fr om a third person was also discovered, but it was a minute amount and Turbeville was unable to determine whether it was male or female.
Patsy Hayes, A.G.’s mother, testified that she first learned of her daughter’s expe

riences with Defendant

from her sister, R

egina, at approx

imately midnight on July 4, 1999. Regina told her onl y that Defendant had been fooling around with A.G. and that she did not know how far it had gone. Consequently, Ms. Hayes questioned her daughter in an effort to discover whether

what Regina had told her was true. They talked for a couple of

hours. A.G. told her that Defendant made her have sexual relations with him and that she tried to refuse him. She also claimed that Defend ant “threatened” her. Specifically, Defendant warned A.G. that if she told anyone, he would stop seeing Ton y and come to Lewisburg looking for her. Ms. Hayes testified that, initially, A.G. appeare d frightened, embarrassed, and humiliated and she did not want to talk at all.

After talking with

A.G., the first thin

g Ms. Hayes did was

alert the Rape Cr

isis Center, which instructed her to take A.G. to General Hospital. She did this the next day, July 5, 1999, and then she calledthe police. The following day, July 6, 1999, Ms. Hayes discovered A.G.’s pink and red panties while doing laundry. They were in a bag with all of the other clothing that A.G. and Sherry had brought back from Nashville. After A.G. informed her that “them were the panties she had on when [Defendant] wiped hisself [sic] off,” she bagged them to give to the pol ice. She even tually turned them over to Officer Carter.

Perrione Wigfall testified that Defendant was the father of her daughter, Amanda, and that Amanda did not visit Defendant on Father’s Day in June 1999. Ms. Wig fall testified tha

t, in fact, Amanda did not visit her father on any holidays.-7-

Gregory Scott Payne, the De fendant, test

ified tha t A.G. was the cousin of his girlfriend, Mercresha

Greer, but they had stopped see ing each ot her. Defendant admitted that he stayed overnight at Mercresha’s apartment, usually Monday, Tuesday and Wednesday, during the summer of 1999. He said that s

ometimes he would vi

sit on Saturday also , but on these occa sions he would return home that night to prepare for chur ch on Sunday. Defendant admitted having a sexual relationship

withMercresha, but d

enied that he inte

ntionally touched A.G.’s breasts or “bottom” or that he had sexual intercourse with her.
During cross-examination, Defendant testified that he was currently thirty years old and that Mercresha’s age was twenty-one. Defendant had a son named Tony, who would be two years old in August 2000, and a daughter named Amanda, who would be eleven years old in September 2000. He claimed that Aman

da’s mother was tw

enty-four year

s old at that time. Defendant further testified that he had lived with his mother for his entirelife. He spent the night at Mercresha’s apartment on t he weekends, as well as on Monday, Tuesday, and Wednesday. Defendant admitted that wh e n Mercresha

went out on th e weekends in the summer of 1999, he would be left at home and alone withthe six children. At night, A.G. and her sister, Sherry, slept

on the couch together. Defendant slept upstairs with Mercresha and Tony.

ANALYSIS
I. Sufficiency of the Evidence

Defendant

contends that the evidence is insufficient to supp ort his conviction because the victim did not testify that he committed any sexual offense on June 25, 1999, the d

ate specified in the indic tment. The State acknowledges that a variance exists between the date of the offen se a s allegedin the indictment and th e proof of the cr iminal act presen

ted at trial. Howe

ver, the State argues that this variance

is not fatal, as long

as the date all

ege d for the commission

of the offense preceded the date of the f

indi ng of the indictment. Further, unless “time is of the essence” in the offense, the State contends that the indictment need not even state the date of the offense.

Count three of Def

endant’s indictme

nt alleged, in rel

evant part, the f

ollowing:

GREGORY SCOTT PAYNE

on the 25 th day of June, 1999, in Davidson County, Tennessee and before the finding of this indictment, did intentionally, knowingly, or recklessly engage in unlawful sexual penetration of [A.G.] (D.O.B. 7/26/84), and force or coerci on was u sed to accomplish

the act, in violation of Tennessee Code Annotated § 39-13-503, and against the peace and dignity of the State of Tennessee.
The victim, A.G., testified that the second incident of sexual misconduct occurred on June 29 th or 30 t h . This was the sole proof of the date of the offense as alleged in count three. T h e indictment was filed on December 2, 1999.-8-

Under the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 9 of the Tennessee Constitution, an accused is entitled to noticeof the nature and cause of the accusation. State v. Hill , 954 S.W.2d 725, 727 (Tenn. 1997). An i

ndictment mu st pr ovide
a defendant with notice of the offense charged, provide the court with an adequate ground upon which a proper

judgment may be entered, and provide the defendant wi

th protection aga

inst double jeopardy. State v. Lemacks , 996 S.W.2d 166, 172 (Tenn. 1999); Hill , 954 S.W.2d at 727; Statev. Byrd , 820 S.W.2d 739, 740- 741 (Tenn. 1991); see also Tenn. Code Ann. § 40

-13-202 (1997). T

hese constitutional and statutory directives do not expressly require that the time of the commission of the offense be stated in the indictment. In fact, “[t]he rule of law is well-established in Tennessee that the exact date, or even the year, of an offense need not be stated in an indictment . . . unless the date or time is ‘a material ingredient in the offense.’” Byrd , 820 S.W.2d at 740; see also Tenn. Code Ann. § 40-13-207 (1997) (the offense may be alleged to have been committed on any day before the finding of the indictment, or generally before such time, unless th

e time is a materia

l ingredient in the offense). When the indictment and proof substantially cor respond, the v ariance is not to be regarded as material. Berger v. United States , 295 U.S. 78, 82-84, 55 S.Ct. 629, 631, 79 L.Ed. 1314 (1935). Thus, a variance between the time of the commission of the offense alleged in the indictment and the t ime es tablished by the proof at trial is rarely fatal. State v. Ealey , 959 S.W.2d 605, 608 (Tenn. Crim. App. 1997) (“ [T]he State is not r equired to strictly show that the offenses occurred on or during the dates alleged in t he [indictment] un

less the dates ar

e essential to pro

ving the offense
or imposing a defense.”); State v. West , 737 S.W.2d 790, 792-793 (Ten n. Crim. App. 1987) (

unless the time of the commission of the offense is an essential element of the offense or time will bar the commencement

of the prosecution, “the time of thecommission of the offense averred in the indictmentis not material and proof is not confined to th

e time charged”

); State v. Fears , 659 S.W.2d 370, 374 (Tenn. Crim. App. 1983). The United States Supreme Court has held that reversible error exists only when the variance between the ind ic tment and the proof

is such that it affe

cts a defendant’s substantial rights. See Berger , 295 U.S. at 79-82, 55 S.Ct. at 629-630 (a variance is not fatal if (1) the defendant is sufficiently informed of the charges against him so that he can adequately preparefor trial and, (2

) the defendant i

s protected agai

nst a subsequent p

ro secution for the s

ame offense based on double jeopardy grounds).

In State v. Moss , 662 S.W.2d 590 (Tenn. 1984), our supreme court announced the following similarstandard for evaluating variances between an indictment and the evidence presented at trial:
Unless substantial rights of the defendant are affected by a variance, he has suffered
no harm, and a variance does not prejudice the defendant’s substantial rights (1) if the indictment sufficiently informs the defendant of the charges against him so that he may prepare his defense and not be misled or surprised at trial, and (2) if the varianceis not such that it will present a danger that the defendant may be prosecuted
a second time for th

e same offense;

all other varian

ces must be considered to be harmless error.
Id. at 592; see also State v. Bush , 942 S.W.2d 489, 519-20 (Tenn. 1997).-9-

Applying the above principles to the instant case, we find that the date of the offense was not
a material i ngredient. See Byrd , 820 S.W.2d at 740. The proof at trial showed that Defen dan t committed the offense at issueon June 29 th or 30 th ; the date allege d in the indictment only differed by four or five days. Thus, the indictment and proof substantially correspond. Berger , 295 U.S. at 82-84, 55 S.Ct. at 631. Moreover, the date was not an essential element of the offense, was not necessary to imposing a defense, and did notact as a time bar to prosecution. Because the date was clearly nota material i

ngredient, the offense may be alleged to have been committed on any day before the finding of the indictment, which was filed on December 2, 1999. Tenn . Cod e Ann. § 40-13-207 (1997).

We also conclude that Defendant was sufficiently informed of the charges against him so that he could adequately prepare for trial. Moreover, the variance did not leave him unprotected a

gainst
a subsequent prosecution for the same offense. See Berger , 295 U.S. at 79-82, 55 S.Ct. at 629-630; Moss , 662 S.W.2d at 592. Thus, Defendant’s substantial rights were not affected and revers ibl e error did not occur.

We now turn to the issue whether the evid

ence was su

ff icient to support Defendant’s conviction for sexual battery.

When evidentiary sufficiency is questioned on appeal, the standard of review is whether, afte r considering all the evidence in the light most favorable to the State, any rational trier of fact could have f ound all the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia , 443 U.S. 3 07, 318-319, 9 9 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Hall , 8 S.W .3d 593, 599 (Tenn. 1999); Tenn. R. App. P. 13(e). In determining the sufficiency of t h e evidence, we will not reweigh the evidence or substitute our ow

n inferences fo

r those drawn by the trier of fa ct. See State v. Sheffield , 676 S.W.2d 542, 547

(Tenn. 1984); State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 197 8). Instead, on a ppeal the State is en titled to the stronge st legitimate view of the evidence and to all reasonable and legitimate inferences that may be drawn ther

efrom. Hall , 8 S.W.3d at 599. A guilty verdict by a jury, approved by the trial court, accredits the testimony of the witnesses fo r the State and resolves all conflicts in favor of the prosecution’s theory, effectively

removing the presumption of innocence and replacing it with a presumption of guilt. See Statev. Bland , 958 S.W.2d 651, 659 (Tenn. 1997). Que

st ions concerning the credibility of witnesses, the weight and val u e o f evidence, and factual issues raised by the evidence are matters to be resolved by the trier of fact, not this Court. Id. The defendant bears the burden of demonstrating that the evidence is insufficient to support his or her conviction. State v. Pike , 978 S.W.2d 904, 914 (Te

nn. 1998); State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982).

“Sexual battery” is unlawful sexual contact with a victim by the defendant or the defendant by a victim accompanied by one of four enumerated circumstances. See Tenn. Code Ann. § 39-13- 505 (1997). In this case, the jury was instructed that the evidence must show that Defendant used force or coercion to ac complish th

e ac t, see id. § 39-13-505(1), and that Defendant acted intentionally, knowingly, or recklessly. See id. § 39-11-301(c). “Sexual contact

” is defined as-10-

the in tentional touching of the victim’s, the defendant’s, or any other person’s intimate parts, or the intentional touching of the cl o thing covering the immediate area of the vi ct im’s, the defendant’s, or any other person’s intimate parts, if that intentional touching can be reasonably construed as being for the purpose of sexual arousal or gratification.

Id. § 39-13-501(6). “Intimate parts includes the primary genital area, groin,inner thigh, buttock or breast of a human being.” Id. § 39-13-501(1).
The evidence against Defendant consisted primarily of the victim’s tes timony and the presenceof Defendant’s DNA on the crotch of the victim’s panties. Specifically, the victim testified that Defendant came into the room she was sleeping in, removed her panties, spread her legs, and engaged in sexual intercourse with her. He then used the vi ctim’s panties to wi

pe up his ejaculate and p laced them into the laundry hamper. The DNA recovered from the pink panties exact l y matchedthat of Defendant. After considering this evidence in the light most favorable to the State,
we conclude that it was sufficient so that anyrational trier of fact could have found that Defendant had unlawful sexual c

ontact with the vic

tim, that he used force to accomplish the unlawful act, and that the elements wereproved beyond a r easonable doubt.

Defendant contends that his conviction
was ba se d primarily on the victim’s testimony and that her testimony was not credible. Determinations concerning credibility are matters entrusted solely to the jury, however, and the jury in this case apparently resolved any conflicts in favor of the victim. This Court will not reweigh the evidence or substitute our own inferences for those drawn by the trier of fact. Defendant is not entitled to relief on this issue.

II. Denial of Defe ndant’s Motion

Defendant contends that the trial cou rt erred b y denying his motion to strike the victim’s testimony or, in the alternative, declare a mistrial. Defendant’s motion was based on the fact that the p olice were una

ble to locate the tape recording of their interview with the victim when Defendant’s counsel requeste d it for purposes of

impeaching the vic

tim’s t estimon y at trial. Defend ant

argues that the failure of the police to produce this evidence violated Rule 26.2 o f Tennessee’s Rules of Criminal Procedure and rendered his trial fun damen tally unfair. Defendant asserts that the appropri

ate remedy in his c

ase was to strike t

he victim’s testimo

n y or declare a mistrial, and the trial court erred by refusing to do either. We disagree.
According to the record, this spec ific issue was initially presented to the trial court during
a jury-out recess on the first day of trial. The State had just concluded its direct examination of the victim. Defendant then moved to strikethe victim’s testimony based on a “ Jencks violation” by the State. Defendant

had just learned t

hat the tape of the

victim’s prior stat

ement to the police could not be located and asserted that a proper cross-examination of the victim would be impossible without the ability to impeach her testimony.-11-

In response, the prosecutor acknowledged that the report prepared by the investigator of the case, Detective Ron Carter, contained the senten ce: “[A.G.] s aid she was assaulted on three dates (see taped interview).” The prosecutor claimed that the Youth Services Division informed his office that all of the tapes had been sent and that Detective Carter was uncertain whether a tape of th e victim’s statement evenexisted. Accord ing to the prosecut

or, everything “

memorialized in

writing” concerning the victim’s statement had been given to Defendant.

The court questioned the victim at this point, and she confirmed that her statement had been tape recorded. The t

rial court concl

uded that Defend

ant was entitled to

a jury-out hear ing to determine what had happened to the tape but, until that happened, the co

urt intended to

go forward withDefendant’s cross-examination of the victim. (Detective Carter was not available to testify at that time.) The trial court denied Defendant’s request that he be allowed to postpo ne the crossexamination of the victim until after the court had a chance to rule on this issue.
At the conclusion of the victim’s testimony, the trial court conducted a jury-out hearing to discover what circ umstances led to the disappearance of the tape. During the hearing, Detective Carter acknow ledged that he wa s assigned to A.G.’ s case and that he interviewed her

during his investigation. He recalled recording A.G.’s statement on tape, but he was uncertain whether he took notes. Carter claimed that he was unaware the

tape was missing until that day and he was unaware of the tape’s then-present whereabouts, but he could testify as to his standard procedur es fo r handling similar evidence. To this en d, Car ter explained that, after concluding the taping of a witness’ statement, he would give the tape to his secretary or leave it on her desk. She would then record or log the tape into evidence and place it into a locked facility. Regarding the tape in issue, Carter did not recall whe

ther he gave it to t

h e secretary personally or left it on her desk. He was certain that it was named and labeled with the complaint number, however, because healways did that. Carter testified

that tape rec ordings normally sta y in storage unless

someone requests

them, at which point a copy is made. With regard to the tape of A.G.’s statement, the record does not show that the tape was ever log ge d in. Carter testified that he asked the person responsible for keeping themto searchfor the tape. Thedistrict attorney had also requested a search. The records reflected that no one had requested the tape, so its disappearance was thus far a mystery. Carter testified that the tape may have been misfiled, as happened one time in 1999. The police department was looking into that possibility.

The prosecutor aske

d Carter if he recalled whether the victim, A.G., had recanted at any point during her statement . Carter replie d, “To the best of my knowledge, no, sir, she did not.” Carter recalled that they discussed her allegations against Defendant and that her account was consistent withthe other information he had received. Carter denied that he concealed or destroyed the tape.

At the conclusion of the hearing, Defendant renewed his motion to strike the victim’s testimony from the record. The trial court denied the motion.-12-

Defendant

contends that the St

ate’s fail ure to produce the tape of the victim’s statement violated Rule 26.2 of Tennessee’s Rules of Criminal Procedure. Rule 26 .2(a) prov ides the following:

After a witness other than the defendant has testified on direct examination, the trial court, on motion of a party who did not call the witness, shall order the attorney for the state or th

e defendan t and the defenda nt's attorney, as t

he case may be, t

o produce, forthe examination and use of the moving party, any statement of the witne ss that is in their possession and that relates to the subject matter concer nin g which the witness has testified.

Section (e) of

the same rule con

cerns sanctions f

or failure to

produce the witness’ statement requested pursu

ant to part (a):

If the other party e

lects not to comply w

ith an order to del

i ver a sta tement to the moving party, the court shall order that the testimony of the witness bestricken from the record and that the trial proce ed, or, if it is the attor ney for the state

who elects not to comply, shall declare a mistrial if required by the interest of justice.

Tenn. R. Crim. P. 26.2(e). The language of subsection (e) provides sanctions when the other party elects not to comply with an order to deliver a state

ment to the moving party. We do not believe that the State “elected” not to comply here. According to the testimony of Detective Carter, the tape was most likely misplaced. There is no proof that it was intentionally misplaced. We also do not believe that a mistrial was warranted. Instead, our a nalysis of t his issue is guided by the decision of our supreme court in State v. Ferguson , 2 S.W.3d 912 (Tenn. 1999).

The question presented

to the supreme court in State v. Ferguson was: What consequences should flow from

the State’s loss or destruction of evidence alleged to have been exculpatory. Id. at 915. Significantly, Ferguson also conce rned evidence, the true nature of which (exculpatory, inculpatory, or neutral) could never be determined. Our supreme court beg an by rejecting an analysisbased primarily on proof of theState’s bad faith, used by the United States Supreme Court in Arizona v. Youngblood , 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988), and embraced by many other states. Ferguson , 2 S.W.3d 916. Rather, the court was per suaded that due pr

ocess claims arising out of lost or destroyed evidence must be evaluated by balancing various factors, similar

to the analysis adopted b

y the Delaware S

upreme Court in Hammond v. State , 569 A.2d 81, 87 (De l. 1989). Id. at 916-17 (after having determined that the state had breached a duty to preserv e evidence, the Delaware Supreme Court focused on three factors: (1) the degree of negligence or

bad faith involved; (2) the i

m po rtance of the missing evidence, considering the probative value and reliability of secondary or substitute evidence that remains available; and (3) the sufficiency of the other evidence used a

t trial to sustain the

conviction). Our

supreme court deemed the preservation of a defendant’s fundamental right to a fair trial of paramount importance and adopted for Tennessee a balancing approach similar to the one set forth in Hammond

. Id. at 917.-13-

Und er Ferguson , when the loss or destruction of evidence occurs, the first step i s t o determine whether the State had a duty to preserve the evidenc e in qu estion. Observing that the boundaries of

such a duty may be difficult to define, the Ferguson court quoted from California v. Trombetta , 467 U.S. 479, 488-89, 104 S.Ct. 2528, 2533-34, 81 L.Ed .2 d 413 (1984), in which the United States Supreme Court held:

Whatever duty the Constitution imposes o n the States to pres

erve evidence

, that duty must be limited to eviden

ce that might be ex

pected to play a si

gnificant r

ol e in the suspect’s defense. To mee t this standard of constitutional materiality, evidence must bothpossess an exculpatory value that wa s apparent before the evidence was destroyed, and be of such a natu re that the defe

ndant would be una

ble to obtain comparable evid

ence by other re

asonably availab

le means.

Once the proof demonstrates the existence of a duty and the state’s failure in that regard, the court must make a decision regarding the consequences of the breach. Specifically, the court should examine (1) the degree of negligence involved; (2) the significance of the missing evidence, taken in light of the probative value and re l iability of secondary or substitute evidence that remains available; and (3) the suffi cienc y of the other evidence used at trial to support the conviction. Ferguson , 2 S.W.3d 917. If, after considering the above factors, the trial court concludes that a trial withoutthe missing evidence wou ld not be fundamentally fair, the trial court may dismiss the charges or craft appropriate instructions for the jury. Id. (The court did not state that these options should be considered the sole remedies or be exclusive of any other.)
Turning to the case before this Court, we find that the State had a duty

to preserve the tape recording of Detective Carter’s interview with the victim. Although the exculpatory nature of the evidence has con siderable significance in an evaluation of the State’s duty, see id. , and the exculpatory nature is, in

this case, questionable, it nevertheless could be considered material to the preparation of Defendant’s defense, at the very least. In other words, it may have had some value in impeaching the c

redibility of the vi

ctim.
Accordingly, we must now determine what consequences should flow from the breach. The first factor considers the

degree of negligence involved. We first note that the proof fails to i

ndicate any bad faith on the pa

rt of the State . The only question then is what degree of negligence was involved in the loss of

the tape. Weconclude the proof supports a finding of simple negligence, as compared to gross negligence. Detective Carter testified that he did what he has always done, and the record does not indicate that th e police departm

ent’s evidence s

torage facility

has had any other problemswith missing or lost evidence in the past, with the exception of one misfiled tape in 1999. Therefore, we find that the conduct of law enforcement in this matter constituted simple negligence.

The second factor addresses the significance of the missing evidence, in light of the probative value and reliability

of secondary or substitute evidence that remains available. Defendant contends that the tape record

ing was critically

important and nec

essary to im

peach the victim’s credibility. This contention is unsupported by any evidence in the record, however. When the prosecutor asked-14-

Detective Carter whether the victim, A.G., recanted during her statem ent, Carter repl ied, “To the best of my knowledge, no, sir, she did not.” Carter also stated that her account was consistent with the other information he had received. A. G. recalled that Detective Carter took notes during her interview an d that a tape recorder was running the entire time they spoke. Detective Carter t he n playedthe complete statement back to her and asked her que

stions about variou

s things she said

and whether she was certain

it happened that way. According to A.G., he did not re-record any parts of her statement and, if something was unclear, he made a notation on paper. Detective Carter’s notes
were later given to Defendant. W hen A.G. was asked whether her testimony in court that day differed in any respect with the statement she gave Detective Carter, she answered, “No, not really.” Defendant’s counsel then questioned A.G. as to what she meant by “not really,” and she affirmed that her story had not changed. Based on this proof, we are unpersuaded that the tape had significant probative value, i.e., that it would have beenof considerable assistance in discrediting the victim’s account of the events. Mor

eover, it appears that some secondary evidence was available. The State claimedthat Defendant was given the notes taken by Det

ective Mann when

A.G. spoke with

him at the hospital on July 5, the notes taken by Detective Carter during his interview on July 15th, and the information collected during an interview conducted at the Our Kids Center (date not specified).

The third factor, suf

ficiency of the o

ther evidence u

sed at trial, als

o fails to support Defendant’s argu ment on th is issue. Even if the victim’s credibility was attacked by inconsistent prior statements, there was evidence of Defendant’s sperm and DNA on the victim’s panties, despite the fact that Defendant denied having any sexual relations with the victim.

As a remedy in this situation, the trial court chose to give the jury the following instruction concerning the missing tape: “I f you find that the St ate has lost the tap

e recorder who

se contents might or might not have be en h elpful to the defe nse, they you may c

onsider this lost tap

e in assessing the strength

of the State’s proof.” Although there is a more detailed instruction set forth in Ferguson , see id. at 917 n.11, the instruction given in this case was sufficient in that it told the jury to consider

that the State

misplaced the tape and that it may have been helpful to Defendant’s case. In his brief, Defendant asserts that the instruction was inadequate for failing to apprise the jury of the tape’s contents, i.e., that the tape contained the victim’s interview with the police. We disagree. The jury was made awa

re of the tape’s

content during the

testim onies of both the victim and Detective Carter.

In sum, we believe that Defendant’s defense was not hindered to

any significant degree by the missing tape. W

e further concl

ude that he rece

ived a fundamenta

lly fair trial and

that the trial court’s decision to give an inst ruction to the jury on this matter, in lieu of granting a mistrial or striking the victim’s testimony, was not reversib le error. Defend

ant is not entitled to

relief on this issue.
III. Sentencing

D efendant

c ontends that the tr

ial court erred

by imposing the maximu m sentence length allowedfor his conviction and by denying Defendant full probation or any other form of alternative-15-

sentencing. With regard t o the term of his sentence, Defendant argues that (1) one of the enhancement

factors applied by the trial court was not proven by a preponderance of the evidence,
as required

by State v. Winfield

, 23 S.W.3d 279 (Tenn. 1998), (2) a second enhancement factor was applied in error, and (3) the trial court failed to give appropriate weight to the mitigating factors applicable

in his case. Regarding the manner of service of his sentence, Defendant asserts that (1) the trial court faile

d to properly addr

ess his potential fo

r rehabilitation o

r tr eatment in the community, and (2) the trial court failed to make the findings of fact which are necessary, as a matter of law, prior to ordering a sentence of confinement. We disagree.

At Defendant’s se

ntencing h earing on August 31, 2000, Defendant testified that he never touchedthe victim, A.G., and, therefore, he was unable to accept the verdict in this case. Defendant claimedto be a “hard-working man” who wanted to care for his family and, especially, his mother. Defendant’s moth

er was ill and una

ble to properly care f

or herself alone. At that time, Defendant lived with his mother and statedthat, if granted probation, he would continue to do so. He was also employed and gave the majority of his spendable income

to his mother and his

child, Amanda, in the form of child support. Defendant stated that his criminal history included only a misdemeanor conviction for gambling and a charge of trespassing.
During cross-examination, Defendant testified that his daughter, Amanda, was eleven years oldand that the mother of his child, Perrione Wigfall, was approximately twe nty-three years old. When questioned further, Defendant claimed that Ms. Wigfall was close to his own age, thirty-one. The St at e pointed out that, m athematically, th

ere is a differe

nce of eight yea

rs in their ages. Defendant conceded this, but claimed that Ms. Wigfall was not twelve years old when they dated.
Mary Payne, Defendant’s mother, testified that Defendant lived with her and that

he assisted her financially. She stated that she was sixty-seven y

ears old and she n

eeded Defenda

nt to live with her because she was ill. Ms. Payne further testified that if Defendant was granted probation, s he would take full re

sponsibility for him.

At the conclusion of p

roof at the sente

ncing hearing, th

e tria l court found that two enhancement

factors applied in Defendant’s case: “[t]he defendant has a previous history of criminal convictions or

criminal behavior in addition to those necessary to establish the appropriate range,” Tenn. Code Ann. § 40-35- 114(1), and “[a ] victim of the off

ense was partic

ularly vulnerabl

e because of age or physical or mental disability . . . .” Tenn. Code Ann. § 40-35-114(4) (1997). With regard to the fir s t enhancement fa ctor, the trial co

urt stated that it a

ccredited the te

stimony of the victim

, A.G., “in all respects.” Accordingly, it found by a preponderance of the evidence that

Defendant had raped her. Concerni n g the second enhancement factor, the trial court noted only that the victim’s age at the time of the crime (fourteen) made this factor applicable. The trial court also stated that it gave the greatest weight to the enhancement factor involving Defendant’s prior criminal behavior.

The trial court observed that Defe n dant submitted numerous mitigating factors; a total of fifteen according to the p resentence re

port. However, t

he record reve

als that the trial c

ourt only commentedon the mitigating fa ctor applicable when the defendant’s conduct “neither caused nor-16-

threatened

serious bodily injury.” Tenn. Code Ann. § 40-35-113(1) (1997). Specifically, the trial court refused to mitigate Defendant’s sentence based on a lack of physical injury to the victim but stated that, even if this factor did a pply, the small cons

ideration it

deserved would b

e substantially outweighed by the e

nhancement fac

tors.
Next, the trial court acknowledged tha t Defendant was presumed to be a candidate for alternative sentencing, but foun d that th e proof of Defendant’s criminal behavior overcame the presumption. Accordingly, the trial court sentenced Defendant as a standard Range I offender to

two years in confine

ment. Appellate review of sente

ncing is de novo on the record with a presumption that thetri al court’s determinations are correct. Tenn. Code Ann. §§ 40

- 35-401(d), 402(d) (1997). If the trial court followed the statutory sentencing procedure, made findings of f act that are ade

quately supported in the record, an d gave due conside

ration and prope

r weight to

the factors and principles relevant to sentencin

g under the 1989 Sentencing Act, we may not disturb the sentence even if a different result were preferred. State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).
However, “the presumption of correctness which accompanies the tria l 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.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). Therefore, meaningful appellate review requires that the trial cour t place on the rec

ord its
reasons for arriving at the final sentencing decision, identify the mitigating and enhancement factors found, stat e the specific facts supporting each enhancement factor applied, and articulate how the mitigating and enhancement factors were evalua te d and balanced in determining the sentence. State
v. Poole , 945 S.W.2d 93, 96 (Tenn. 1997); see Tenn. Code Ann. § 40-35-210(f) (1997). The burden is on the appealing party to show that the sentencing is improper. Tenn. Code Ann. § 40-35-401 (1997), Sentencing Commission Comments.

In conducting a de novo review, wemust consider (1) the evidence, if any, received at the trial and sentencing hearing, (2) the presentence report, (3) the pr inciples of sentencing and arguments

as to sentencing a

lternatives,

(4) the nature and characteristics of the criminal conduct

, (5) any mitigating or statutory enhancement factors, (6) any statement

that the defendant made on his own behalf, and (7) the potential for rehabilitation or

treatment. Id. §§

40-35-102, 103, 21 0; see Ashby , 823 S.W.2d at 168; State v. Moss , 727 S.W.2d 229 (Tenn. 1986).

The s enten ce to be imposed by the trial court for a Class E felony is presumptively the minimum sentence in the range when no enhancement or mitigating factors are present. See Tenn. Code Ann. § 40-35-210(c) (1997). Procedurally, the trial court is to increase the sentence within the range based upon the existence of enhancement factors and

then reduce the

sentence as app

ropriate for any mitigating factors. Id. § 40-35-210(d), (e). The weight to be af forded an existin

g factor is left to the trial court’s discretion so long as it compl ies with the purposes and principles of the Sentencing Act, and its findings are adequately supported by the record. Id. § 40-35-210, Sentencing Commission Comments; Moss , 727 S.W.2d at 237; see Ashby , 823 S.W.2d at 169.-17-

A. Sentence Length

Defendant

argues that his se

ntence is excessive because (1) the enhancement factor based on his criminal b ehavi or was not proven by a preponderance of the evidence, as required by State v. Winfield , 23 S.W.3d 279 (Tenn. 1998), (2) the enhancement factor based on the victim’s age was applied in error, and (3)

the trial court fa

iled to give approp

riate weight to the fifteen mitigating factors submitted in his case.
First, we observe that Defendant’s reliance on Winfield to refute the trial court’s application of the first enhancement factor is misplaced. In Winfield , our su preme cou rt stated that “a sentencing court may apply an enhancement factor based on facts underlying an offense for which the defendant has been acquitted so long as the facts are established in the record by a preponde rance of t he evidence.” Id. at 281; see also State v. Carico , 968 S.W.2d 280, 288 (Tenn. 1998) (the admission of evidence of sexual acts–other than the acts for which thedefendant was convicted– at the sentencing hear

ing did not violate th

e appellants

rightto due process). Here, the trial court stated that it accredited the testimony of the victim. The trial court then used this proof to find by a preponderance

of the evidence

that Defendant h

ad raped her. Th

e victim ’s testimony constitutes adequate support for the trial court’s finding. Thus, we find no error in the court’s applica tion o f enhancement

factor (1). Furt

her, since we fi

nd that the trial co

urt generally co

mplie d with th e purposes and principles of the Sentencing Act and its findings regarding this factor are ade

quately supported by the record, the great weight attributed to this factor is within the trial court’s discretion, and we find no abuse.

We have come to an in

apposit e conclusi on concerning the second enhancement factor, however, which is applicable when “a victim of the offense was par

ticularly vulnerable because of age or physical or

mental disabili

ty. . . .” Tenn. Code Ann. § 40-35-114(4) (1997). In State v. Adams , 864 S.W.2d 31 (Tenn. 1993), our supreme court provided a framework for appl ic ation of this factor, stating that enhancement of a sentence based on vulnerability “relatesmore to the natural physical and mental limitations of the victim than merely to the victim’s age. . . .” Id. at 35. The factor can be used when “the circumstances show that the victim, because of his age or physical or mental condition was in fact ‘particularly vulnerable,’ i.e., incapable of resisting, summoning help,
or testifying against the perpetrator.” Id. In a subsequent opinion, the supreme court further stated that “[a]lthough it is no

t difficult to imagin

e cases in which t

he victim’s a

ge, whet her very young
or very old, may seem to equate with vulnerability, we chos e in Adams not to presume such a conclusion in any case.” State v. Poole , 945 S.W.2d 93, 96 (Tenn . 1997). T he emphasis is on vulnerability, and the “State bears the burden of proving the victim’s limitations render[ed] him or her particularly vulnerable.” Id. (quoting Adams , 864 S.W.2d at 35).

In determining wheth

er the State has me

t its burden, the trial court should consider “whether evidence in the record with regard to the victim’s age or physical and mental attributes demonstrated
an inability to resist the crime, summon help, or testify at a later date.” Id. (citations omitted). Although the evidence need not be extensive, and additional weight may be given this factor in cases where a victim is extremely young or old, the State is required to prove the factor is applicable and-18-

“there must be evidence in the record in addition to the victim’s age .” Id. at 97 (emphasis added). The court must consider all of the facts and circumstances of the offense in determining whether the particular vulnerability factor is appropriate. Id.
Here, the trial court made no findings of fact beyond its mere recitation that “enhancement facto r number four is present in this case, the age of the victim.” Moreover, the State offered no proof of vulnerability due to age, and this was not a case where the victim was extremely young or extremely old, which might req

uire exceptiona

l consideration. I

n sum, this factor

does not apply in this case.

With regard to the fifteen mitigating factors submitted by Defendant , we find n one applicable under the circumstances presented here. Regarding the f irst factor, alleging that Defendant’s conduct neither caused nor threatened serious bodily injury, we cannot conclude that the trial court erred by refusing to mitigate Defendant’s sentence on this basis. If the testimony of the victim

is credible,
as the trial court expressly found, we are simply unpersuaded that the threat of serious bodily injury did not exist.

The remaining fourteen mitigating factors, all submitted under “[a]ny other factor consistent withthe purposes of this chapter,” Tenn. Code Ann. § 40-35- 113(13), are al so inapplicable. A

small number of the factors concern characteristics of Defendant’s life, e.g., that he is employed, a father, and has friends,

et cetera. We c

onsider this type of

societal behavio

r to be standard, a

nd more or less expected of the average

citi zen. As such, it does not warrant mitigation under the circumstances presented here. See State v. Keel , 882 S.W.2d 410, 423 (Tenn. Crim. App. 1994) (the fact that the defendant had a fairly

stable employment history and was a lifelong resident of his community did notentitle him to a reduction in his sentence). A significant number of the remaining mitigating factors are merely

the antithesis of our statutory enhancement factors and sentencing considerations, e.g., no weapons were

used, exceptional cruelty not found, the risk to human life was not high, the offense was not committed wh

ile defendant

was on some form of release status, et cetera. As such,
we find that the trial court did not err in not applying them. They also do not present circumstances proper for mitigation here.

In s um , we find that the length of Defendant’s sentence was proper based solely on enhancement fa

ctor (1), which w

e previously agre

ed was deserving

of great weight.

Defendant is not entitled to relief on this issue.

B. Alternative Se

ntencing

Defendant

also contends that the trial court erred by denying him probation or any other form of alternative sentencing. We disagree.

A defendant is presumed to be a favorable candidate for alternative sentencing if, under Tennessee Code Annotated se ction 40-35-102(

6) (1997), the de

fendant is an espe

cially miti ga ted
or standard offend

er of a Class C,

D, or E felony a nd does not meet the criteria of section-19-

40-35-102(5). This presumption of alternative sentencing may be rebutted by “ evidence to the contrary,” and guidance as to what constitut es such evidence may be found in Tennessee Code Annotatedsection 40-35-1 03. Unde r this section, a c ourt may consider

whether confine

ment is necessary to protect society by restraining a defendant who ha

s a long history of c

riminal conduct; whether it is necessary to

avoid depreciating the seriousness of the offense or provide an effective deterrence

to others likely to c

ommit similar offen

ses; and whether

measures less re

stric tive t han confinement

have frequently

or recently

been applied unsu

ccessfully to the defendant. Tenn. Code Ann. § 40-35-103(1) (A)-(C) (1997).

Prior to imposing a s entence of confinement, the trial court acknowledged that Defendant
was eligible for alternative sentencing. The tr ial court’s finding was correct. Defendant was convictedof a Class E felony and did not meet the criteria of section 40-35-102(5). The trial court then found that the presumpti on in favor of alternative sentencing was overcome by evidence of Defendant’s “criminal behavior as to this victim . . . .” The trial court did not make any further findings, and did not utilize th e sentencing con

siderations se

t forth in Tennessee Code Annotated section 40-35-103. The trial court’s findings, howeve r brief, are nevertheless adequate under the circumstances in this case.

As previously noted, the trial court found that Defendant had a history of criminal behavior,
even though it did not r esult in a conviction, and that it was proved by a preponderance of the evidence. We haveconcluded that thi s finding was suppor

ted by the record

and applicable la

w. This prior criminal behavior is also an appropri ate co nsideration in det ermining a defen

dant’s specific sentence and the appropri

atecombination of sentencing alternatives. See Tenn. Code Ann. § 40-35- 210(b)(5) (1997); Statev. Ring , 56 S.W.3d 577, 582-83 (Tenn. Crim. App. 2001) (the trial court’s failure to consider enhancing and mit igating factors in fashioning the appropriate combination of sentencing alternatives is

“misplaced”). We further note that Defendant’s denial of any wrongdoing during the sen tencing hearing demonstrated a disturbing failure to take responsibility for his criminal conduct. Lack of candor and credibility are indications of a defendant’s low potent ial for rehabilitation, State v. Nunley , 22 S.W.3d 282, 289 (Tenn. Crim. App. 1999), which is also a factor to be considered in

determining whether alternative sentencing is appropriate. Tenn. Code Ann. § 40-35-103(5) (1 997); State v. Zeolia , 928 S.W.2d 457, 461 (Tenn. Crim. App. 1996).

In summation, we do notdeny that there a re some factors

which weigh in

Defendant’s favor for alternative sentencing. However, after considering the circumstances of the offense, including the poor potential for rehabilitationexhibited by Defe ndant’s repeate

d denialsof any wrongdoing and his history of criminal behavior, we conclude that there is sufficient “evidence to the contrary” in the record to rebut Defendant ’s presump tion of entitlement to an alternative sentence. Consequently, we find the trial court did not err in de nying alternative sentencing in this case. Defendant is not entitled to relief on this issue.
CONCLUSION For the foregoing

reasons, we AFFIR

M the judgment of the

trial court.

____________________________________ THOMAS T. WOODALL, JUDGE