### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs O

ctober 18, 2000

STATE OF TENNESSEE v. NICHOLAS WILLIAMS

Direct Appeal from the Circuit Court for Giles County Nos. 8650, 8651, 8652 Jim T. Hamilton, Judge

No. M1999-00780-CCA-R3-CD - Filed July 3, 2001

In 1998, the Giles County Grand Jury indicted the Defendant for one count of statutory

rape and ten counts of sexual battery. In 1999, a Giles County

jury tried th

e Defendant and

found him

guilty of

one count of statutory rape and five counts of sexual battery. Following a hearing, th e trial court sentenced the Defendant

to two years incarceration for each conviction and ordered that five of the six sentences be se

rved consecutiv

ely, result ing in an effective sentence of ten years. The De fendant now appeals as of right, arguing (1) that the evidence presente d at trial was insufficient to support his convictions for sexual battery; (2) that the trial court erred by consolidating al

l counts for trial; and (3) that he was improperly sentenced. We conclude that the evidence is insufficient as to one count of sexual battery

a nd thu s reve rse on e of th e Defen dant’ s conv ictio ns for sexu al bat tery. In addition, we concludethat the trial cour t erred by c

onsolidating all c

ounts for trial,

but conclude that this error was harmless. Finally, following our reversa l of the sexual battery conviction in case 8652,
count one, with a two-year sentence, and a de novo review of the remaining sentences imposed by the trial court, we conclude that an effective sentence of eight year s in the Tennessee Department of Corrections is appropriate.

Tenn. R. App. P. 3 Appe al as of Right; Judgme

nt of the Circuit Cour

t Reversed in Pa

rt and Affirmed in Part

R OBERT W. W EDEMEYER , J., delivered the opinion of the court, in which T HOMAS T. W OODALL and N ORMA M C G EE O GLE , JJ., joined.

Claudia Jack, Beverly J. White and Shipp Weems, Pulaski, Tennessee, for the appellant, Nicholas Williams.

Paul G. Summers, Attorney General and R eporter; Todd R. Kelley

, Assistant Attorne

y General ; Elizabeth T. Ryan, Assistant At

torneyGeneral; T. Mich

ael Bottoms, Distr

ict Attorney

General; Patrick S. Butler, Assistant District Attorney General; and Richard H. Dunavant, Assistant District Attorney General, for the appellee, State of Tennesse e.

OPINION1 Due to the a ges of the victim s and the natu re of the crime s, we will refer to the v ictims by initial only.

-2- In July 1998, the Giles County Grand Juryindicted the Defendant, Nicholas Williams, for

one count of statutory rape and ten counts of sexual battery. In June 1999, the trial court granted the State’s motion to consolidate all offenses for

trial. Prior to tria

l, the State dismissed five counts of sexual battery. I

n June 1999, th

e Defendan t was tried by jury and found g uilty of one count of statutory rape and fivecounts of sexual battery. The trial court sentenced the Defendant as a Range I standard offender to two years incarcera tion for statutory rape and to two year s incarceration for eachcount of sexual battery. The trial court ordered that five of the

counts be served

consecutively for an effective sentence of ten yea rs.

The De fe ndant now appeals his convictions and sentence, arguing (1) that the trial court erred by consolidating all counts for trial; (2) that the evidence was ins

ufficient to suppo

rt his convictions forsexual bat tery; and (3) that he was improperly sentenced. We reverse one of the Defendant’s convictions for sexual battery because we agree that the evidenc e was insuf ficient to support t

his conviction. We also conclude that the trial court erred by consolidating all counts for trial, but find such error harm

less.

The charges in this case stem from a series of inci dents involving three friends of the Defendant’s daughter. The friends, all victimsin this trial, were M.B., G.M., and A.Y. 1 At trial, the Defendant’s daughter, Amanda Williams, testified that in 1 9 97, she began her senior year o f high school and moved to Lynnville, Tennessee with her father, the Defendant, who was thirty-eight y ears oldat the time. Williams testified that she became friends with a number of girls at her high school andasked many of her friends to visit the two-bedroom trailer wher e she li ved with her father. Williams maintained that her father pressured her to bring friends to their home, and she testified that if she did not “[f]ind someone to come over,” she “would get in trouble.” Williams stated that when she brought friends home, th e Defendant provided alcohol and marijuana for them at the trailer. She recalled

that she and her friends would drink alcohol, smoke marijuana, and play cards withthe Defendant. Sh

e also testified th

a t the Defendant s

ometimes took her a

nd her friends to Columbia for a movie or dinn

er, and she rec

alled that on these

occasions, the Defe nda nt a lwa ys “paid everyone’s way .”

According to Williams, the first f riend to visit their h ome was M.B., who was seventeen yearsoldat the time. Williams stated that s he introduced M.B . to the Defendan t, and they b

ecame friends. Williams testified that the Defendant eventually told her that he and M.B. were “kind of like dating.” According to

Williams, t

he Defen dant reve aled to he r that he a nd M.B. “h

ad sex, but when she told him to stop, he did. And it would have gone further, but [M.B.] didn’t want it to, and they quit.” Williams stated that the Defendant put M.B.’s senior photograph on the

ir living room wal

l “‘[c]ause they liked each other.”

Several months later, A.Y., a fiftee n-year- old high school freshman, began to visit the Williams’ trailer. Williams testified tha t she, A.Y., and the

Defendant “wou

ld party and go places together.” She stated that on w eekends, they

would usually

“go out, but . . . sometimes [they] would-3-

stay home, get

drunk and smoke weed” provided by the Defendant. Williams recalled that one night when A.Y. visited her home, the Defendant pressured Williams

to “get [A.Y.] to ke

ep drinking, ‘til she’dpass out.” Williams stated that she complied with her father’s reque

st, and A.Y. contin

ued to

consume alcohol. Eventua

lly, A.Y. fe

ll asleep in Williams’ bedroom. Williams testified that she slepton the couch that night because the De fendant told Williams not to enter her room until he

came out. Williams stated th

at her father e

ntered the bedro

om with A.Y., stay

ed for a few minu

tes, andthen left. The Defendant late r told Williams that “when [A.Y.] was asleep, h e tried to mess with her, and she would . . . roll over and te ll him, no, and he wou

ld quit.” Williams test

ified that sh

e spoke with A.Y. on the telephone after that night. After their conversation, in response to a question A.Y. had asked her on the phone, she asked her father “if [A.Y.] would come over again, would he promise not to bother her like last time and to have her just be a friend.”

Williams recalled that on another occasion, the Defendant transported her, her for mer boyfriend, and A.Y. to Columbia for the evening. She stated that while she and the Defendant were driving to pick up A.Y., the D efendan t told Wi lliams to stay in the front seat of the car so that he could ride in the back sea

t with A.Y . In addition, Williams testified that her father gave A.Y. a birthstone ring t

hat he had purcha

sed for her at Wal

-Mart.

On cross-examination

, Williams testified that police officers had told her that if she did not “tell [the police] everything

[she] knew,” she would be charged with contributing to the delinquency of a minor, and she stated that this frightened her. She also admit ted that her frie

nds, especially A.Y., often wanted to come to her home. In addition, she testified that she and her friends smoked marijuana and consumed alcohol at parties outside of her home. She stated that her friends sometimes had marijuana of their own, but she explained that her father always provided the alcohol andmarijuana at their home. Fina lly, Will iams testified that when she smoked marijuana, her memory sometimes b ecame foggy, but she insisted that she remembere d all of the events that she had testified about on direct examination.

M.B. testified that during her senior year of high school, she became friends with Amanda Williams, and she started occasionally spending the night at the Williams ’ trailer in Lynnville. She recalled that one Sunday after she spent the night there, she and Williams went to church. When they arrived back a

t the trailer afte

r church, Williams

decided to

visit her boyfriend and asked M. B. to stay at the trailer. After Williams left, M.B. and the Defendant sat on the couch a nd began to talk. While they talked, the Defendant put his arm ar ound M.B. M.B. recalled that “at first, [she] was willing.” She testified, You know, he kissed me and I kissed him back. And then it started going onto more stuff. And he triedto touch my br east . . . . And he un

done his pants and pulled out his penis. . . . [H]e tried to get me to touch it, . . . and I was like, no . . . . just leave me alone. M.B. testified that the Defendant then pulled back her dress, pushed aside her panties, and penetrated her vaginally with his penis. M.B. continued to p rotest, however , and the Defend

ant “finally

just stopped.” M.B. then called Williams and asked her to return home.-4-

M.B. testified that some time after this incident, she returned to the Williams’ trailer with two of her friends to pick up Amanda Williams. She statedthat the Defendant was present when they arrived, and she “told him to l eave [her] alone.” M.B. testified, “[The Defendant] started calling me and[Amanda Williams] slut, . . . and he wouldn’t let

[Amanda Williams] go o

ut with me, just ‘ca

use I wouldn’t stay there with him. . . . And he wouldn’t even l et me and Mandy

talk [n]o more, just ‘cause I wouldn’t stay there no more.”

M.B. further

testified that she gave Williams a copy of her senior photograph. She stated that the Defendant put the photograph in a picture frame on the living room wall and later placed it in

his Bible. She also recalle

d that when she vi sited the Williams’ trailer, she sometimes consumed alcohol and smoked marijuana that the Defendant provided for her and for his daughter.

G.M., who was fifteen y

ears old at the time of the crimes , testified that she was friends with Amanda Williams and A.Y. She

stated that sh

e vis ited the Williams’ trailer several times, where she drank alcohol and smokedmarijuana boug ht by the Def

endant. She reca

lled that one nigh

t while she was at the trailer, she, Williams, and A.Y. went to sleep in Williams’ bed. She stated thatwhile they slept, the Defendant entered Williams’ bedroom and “mess[ed] with” A.Y. She recalled that she and A.Y. discussed the incident the following morning.

G.M. testified that on another occasion when she visited the trailer, she play ed car ds with Amanda Williams and the Defendant while they all drank and smoke

d marijuana. Afte

rwards, G.M. went into Williams’ bedroom to sleep while Williams slept on the couch in the livi ng room. According to G.M., about fifteen to twenty minutes after she got into the bed, the Defendant entere d the bedroom. G.M., who was lying on her stomach at the time,felt him put his hands “underneath the elastic of [her

] shorts” andtry to pull them down. She testified that the Defendant’s hand was

on her buttocks. G.M. testifiedthat when this happened, she moved “to make him think [she] was waking up,” and he left the room. However, a few minutes later, he retur ned and tried ag

ain. G.M. stated that this happened about five times until she finally rolled herself up i n the blank et. G.M. testified that she

never returned

to the Williams’ trail

er after the inc

ident.

A.Y. also testified at trial. She stated that she was a freshman in high school at the time of the crimes in

this case. She recalled tha t she and Amanda Will

iams were “best f

riends” at that tim

e andthat she visited the Williams’ trailer tw o or three times a w

eek after she a

nd Williams became friends. A.Y. testified that she kept a journal in which she recorded several incidents that occurred at the Williams’ home. She stated that on March 26, 1998, she went to the trailer after school and spent the night there with the Defendant, Williams, and G.M. She recalled that during the evening, they all played cards, smoked marijuana, and drank alcoho

l. Afterwards, s

he, Williams, and G.M. fell asleep in Williams’ bed. A.Y. stated that she was awakened by the Defendan t, who wa s caressing her legs. When sh e realized what w

as happening, sh

e kicked him

and then fell

back asleep. The Defendant,

according to A. Y., left the room, b ut came back in nu

merous times to

rub her legs. Eachtime, she kicked hi

m, and eventually

, he stopped. A.Y.

stated that while

the Defendant was in the room, she trie

d to awaken Williams

and G.M. by h

itting them,butneither of them woke up. A.Y. testified that the next morning she told G.M. what had happened and then went home.-5-

On March 28, 1998, A.Y. returned to the Williams’ home. A.Y. testified that onthat night,

as they did on each

occasion she visit

ed the Williams’ home

, she, Williams,and the Defendant got “drunk and high” by drinking alcohol and smoking marijuana bought by the Defendant. At the end of the night, she an

d Williams fell aslee

p in Will iams’ bed. Again, the Defendant entered the bedroom and began caressing A.Y.’s legs, and A.Y. kicked him. A.Y. stated that when he rubbed her legs, the Defendant rubbed her legs “abo ve [her] knee[s].” Several times, the Defendant attemptedto caress A.Y.’s legs while she slept, and several times, she kicked h

im. A.Y. testified that every ti me the Def

endant believed she had fallen back asleep, he would begin to touch her. A.Y. stated that she tried “to curl up in the covers, to try to get away from him, . . . just hopi ng he wouldn’t come in there.”

A.Y. testified that another incident occurred on the night of April 3, 1998. A.Y. stated that during the evening, she

, Williams, and the De

fendant drank se

veral shots of te

q uila and smoked marijuana. The Defendant encouraged h

er to keep drinkin

g when she wante

d to stop. She recalled that after sheand Williams “passed out,” A.Y. awakened to find the Defendant’s hand inside of her shor ts underneath her panties. When she woke up, she kicked the Defendant, and the Defe ndan t apparently

left the room. On April 9, 1998, a similar incident occurred. A.Y. stated that after she, Williams, and the Defendant “‘got drunk and high” and she “passed out,” the Def endant woke her up by trying to “jerk [her shorts] off of [her].” A.Y. recalled that when this happened, the Defendant

was holding the back of her shorts while trying to pull them down. She stated that his fingers were inside of her panties and t hat the Defendant managed to pull her shorts and panties below her buttocks.

When asked why she continued to return to the Willia

ms’ home despite

these incidents, A.Y. responded

that she di d so because Amanda Wil liams “wou ld beg [her] to go over there.” Shealso testified that Williams and the Defendant “would show up at [her] softball practices,” and she left withthem because she

was afraid to

tell her mother wh

at had occurre

d at the Williams’ trailer. A.Y. recalled that on ce when the Defendant and Wil liams arrived at h

er softball prac

tice, Williams retrieved a birthstone ring from the glove compartment of their car and handed it to A.Y. A.Y. stated that she understood the ring to be a gift from the Defendant.

A.Y. said she once told Amanda Williams that she would not come over because she “didn’t want [the Defendant] touching” her. A.Y. heard William s relay this m essage to the De

fendant. Later that day, Williams, the Defendant, and Williams’ former

boyfriend d

rove to A.Y.’s hou

se to take her out that

evening. A.Y. recalled that when they arrived, Williams and her former boyfriend

were sitting in the front seat of the car, and the Defendant was sitting in the back seat. However, A.Y. told Williams that she d id not feel comfortable sitting in the back seat with the Defendant, and they changed seating positions.

A.Y. testi fied that one day at school she noticed that Amanda Williams’ ey e was injured. Although Williams claimed that a screen door had hit her, A.Y. began to suspect that the Defendant

was abusing Williams.

A.Y. therefore considered reporting the Defendant’s actions to the police.-6-

She wrote a letter to G.M. detailing what the Defendant had done to her, but before she could deliver it to G.M., A.Y.’s mother discovered the letter. A police investigation ensued.

Deputy JoeyDickey of the

Giles County Sheriff’s Department testified that he investigated the allegations ag

ainst the Defend

ant in this case. He stated that he initially interviewed G.M. and A.Y. separately

, and based on thei

r interviews,

he decided to

conduct an additional interview of M.B. Chief Investigat

or Michael Chapma

n of the Giles Count y Sheriff’s Department testified that he arranged for Amanda Williams to be interviewed by a female employ ee of the Department of Children’s Services

because he was con

cerned th at Williams

may ha ve been vi ctimize d by her fath er. He stated that after hereceived the re sults of all intervie

ws, he obtained a warrant and arrested the Defendant.

I. SUFFI CIENCY OF THE

EVIDENCE

The Defendant

contests the sufficiency of the evidence used to convict him. The jury found the Defendant guilty of one count of statutory rape against victim M.B., one count of sexual battery against victim G.M., and four counts of sexual battery against victim A.Y. The Defendant argues tha tthe evidence was insufficient to convict him of all five counts of sexual battery. With regard
to his convictions for sexual battery against victim A.Y, he argues that there was no “sexual contact,”

as defined by

our statute, with

any of the

victim’s “intimate parts.” SeeTenn. Code Ann. § 39-13- 501(2), (6). He further

contends that no evidence was presented that each alleged sexual battery was accomplished by means of force or coercion.

Whe n an accused challenges the sufficiency of the evidence, an appellate court’s standard of review is whether, afte r considering th

e evidence in the

light most

favorable to the prosecution, any rational trier of fact

could have found the es sential elements o f the crime bey

ond a reasonable doubt. Jackson v. Virgini a , 443 U.S. 307, 324 (1 979); Statev. Duncan , 698 S.W.2d 63, 67 (Tenn. 1985); Tenn. R. App. P. 13(e ). This rule applie

s to findings of g

uilt based u pon direct evidence, circumst antial evide nce, or a combination of both direct and circumstantial evidence. State v. Dykes
, 803 S.W.2d 250, 253 (Ten n. Crim. App. 1990), overruled on other grounds
, State v. Hooper, 29 S.W.3d 1 (Tenn. 2000).

In determining the sufficiency of the evidence

, this Court should not r

e-weigh or re

-evaluate the evidence. State v. Matthews , 80 5 S.W.2d 776, 779 (Tenn. Crim. App. 1990). N or may this Courtsubstitute its inferences for those drawn by the trier of fact from the evidence. Liakas v. State
, 286 S.W.2d 856, 859 (Tenn. 1956); State v. Buggs , 995 S.W.2d 102, 105 (Tenn. 1999). Questions concerning th e credibilit y of the witne

sses, the weight

and value of the e

vidence, as well

as all factual issues raised by

the evidence ar

e resolved by

the tr ier o f fact. Liakas , 286 S.W.2d at 859. This Court must afford the State of Tennessee the strongest legitimate view of the evidence containedin the record, as well as all rea sonable inferences which may be drawn from the evidenc e. State v. Evans , 838 S.W.2d 185, 191 (Tenn. 1992). Because a verdict of guilt against a

defendant

removes the presumptio

n of innocence and raises a presumption of guilt, the convicted criminal2 Although ther e are sever al means by w hich an individ ual can acc omplish sex ual battery, see id. § 39-13- 505(a)(1)-(4), the Defendant was indicted for

each count of sexual ba ttery as follows: T he Defend ant “did unlaw fully, intentionally, knowingl y or reckl

essly , and for

cibly or coercively en gage in sexual contact with” the vi ctim. Thus, the only means o f sexual battery tha t we may con sider is sexual b attery accom plished by fo rce or coe rcion.

-7- defendant bears the burden of

showing that

the evidence wa

s legally i nsufficient to sust

ain a guilty verdict. Id.

Sexual battery is

defined, in perti

nent part, as “un

lawful sexual conta

ct with a victim

by the defendant

. . . accompanied by any of the following circumstances: (1) Force or coer cion is used to accomplish the act . . . .” Tenn. Code Ann. § 39-13-505(a)(1). 2 “Sexual contact” includes the intentional touchin g of the victim’s,

the defendant’s
, or any other p

erson’s intimate p

arts, or the inten

tional touching of

th e cl othing covering the immediate area of the victim’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 p arts’ includes the primary genital area, groin, inner thigh, buttock

orb reast of a human being . . . .” Id. § 39-13-501(2). “Coercion” is defined as “the thr eat o f kidnappin g, extortion, force or violence to be performed immediately or in the future.” Id. § 39-13- 505(b). Fin all y, “‘[f]orce’ means compulsion by the use of physica l power or violence and shall be broadly construed . . . .” Id. § 39-11-106(12).

The Defendant first contends that the evidence was insufficient to sup port his convictions for sexual battery against A.Y. because no evidence wa s presented

that “unlawful sexual contact” occurred. To properly resolve this question, we must carefully conside rA.Y.’s testimony at trial: A.Y. first testified that on March 26 while she slept, she “felt someone rubbing on her legs,” and she “kicked them off.” She stated that this occurred several times. When asked how the Defendant rubbed her legs, she stated, “He would get his hands, and . . . start rubbing them up my legs. And when he would get

up to about right h

ere, I would

kick him off of me. ” There is no clarification

in the record of what A.Y. meant by “right here.” On cross-examination, defense counsel asked A.Y. if the Defendant rubbed her legs “right up to about the knee,” and A.Y. re sponded, “Yes, ma’am.”

A.Y then testified tha

t on March 28, the D

efendant aga

in rubbed her leg

s while she slept,

and she again kicked him. She stated that he touched her “[r]ight aboveher knee” and indicated to the jury where the Defendant touched her.

A.Y. next recalled tha

t on April 3, she “wo

ke up, and [th

e Def endant’s] hand was in [her] shorts, trying to get underneath [her] pants.” She stated that his han

ds were “undern

eath [her] shorts, under [her] panties” and showed the jury where the Defendant touched her. She testified that she again “kicked him off.”

Fin all y, A.Y. testified that on April 9, the Defendant “tried to jerk [her shorts] off” by grabbingthe back of her shorts and “jerk[ing]” them down. On this

occasion, the Defendant’s hands-8-

were “underneath [her] panties and [her] shorts.” Again, A.Y. indicated to the jury where the Defendant

had touch ed her. On

cross-exa minati on, A.Y. recalle

d that the Defend

ant managed to p

ull her shorts and panties down below her buttocks.

Because the definition of “intimate parts” includes the “the primary genital area
, groin, inner thigh, [and] buttock,” of a human being, id. § 39-13-501(2), weconclude that sufficient evidence

was presented from which a jury could have determined that the Def endant had “unlawful sexual contact” with A.Y. on March

28, April 3, and April 9. However, we must conclude that insufficient evidence was presented to supp ort the j ury’s verdict that the Defendant had “unlawful sexual contact” with A.Y. on March 26. A.Y. testified that on March 26, the Defendant rubbed her

legs to about the knee, and although she indicated to the jur y w here the Defen

dant touched her

, the State unfortunately

failed to cla

rify on the re cord precisely where A.Y. was t

ouched. No evide

nce is includedin the record indicating that the Defendant touched any pa rt of A.Y.’s thigh, or any of her other “intimate parts,” on March 26. Accordingly, we must rever se the Defendant’s conviction for the sexual battery of A.Y. that occurred on March 26, 1998.

The Defendant next ar

gues that the ev

idence was insu fficient to show that each count of sexual battery was accomplished by means of coercion or force. As previously stated, “coercion” is defined as “ the threat o f kidnappi ng, extortion, force or violence to be performed immediately or in the future,” id. § 39-13-505(b), and “‘[ f]orc e’ means compulsion by the use of physical powe r or violence and shall be broadly construed . . . .” Id. § 39-11-106(12).

Having reviewed the

record, we conclude that sufficient evidence was presented that force

was used to accomplish all remaining counts of sexual battery as to A.Y. and the c ount of sexual battery as to G.M. A.Y. testified that on each occasion that the D efendant tried t o touch her, she kicked him. She re

called that eac

h timeshe kicked him,

he left the room, but soon returned to try
to touch her again. In addition, she testified that on one occasion, the Defendant tried to “jerk” her shorts off of her. In light of the foregoing, a rational trier of

fact could

reasonably have found that the Defendant used force to commit each count of sexual battery ag ainst A.Y.

Likewise, G.M. testified that she was lying on her stomach in bed when the Defendant entered the room several times and tried repeatedly to pull her panties down . Th e Defendant persistedin this behavior until G.M. eventually rolled herself into a blanket. Although G.M. made

an effort to protec

t herself by wrapping

herself in the blanket, she

testified, “I

didn’t know if I

should saya nything or not, because I didn’t know what he would do.” We conclude that a broa d construction of “force” could allow the jury to rationally conclude that the element of “force” was proven beyond a reasona ble doubt with regard to the Defendant’s conduct toward G.M. We thus

reverse one convicti

on forsexual battery

on the basis of insuf

ficient evidenc

e and affirm all remaining convictions.-9- II. CONSOLI

DATION

The Defendant argues that the trial court erred by consolidating the offenses in this case for trial. Rule 14 of the Tennessee Rules of Criminal Procedure provides as follows: “If two or more offenses have been j oined or consolidated for trial . . . , the defendant shall have a right to a

severance of the offenses unless the offenses are part of a common scheme or plan and the evidenc e of one would

be admissible upon the trial of the others.” Tenn. R. Crim. P. 14(b)(1). A trial court’s denial of a motion for severance under this rule will be reversed only whe n there has been an abuse of discretion. State v. Shirl ey , 6 S.W.3d 2 43, 247 (Tenn. 1999). In Tennessee, there are three categories of co mmon sche me or plan evidence: (1) evidence showing a distinctive design or signaturecrime; (2) evidence demonstrating a larg er, contin uing plan or conspiracy; and (3) evidence that is part of the same

tr an saction. State v. Moore , 6 S.W.3d 235, 240 (Tenn. 1999). “Before multiple offenses may

be said to reveal

a distinctive desig

n, . . . the ‘modus ope

randi employ

ed must be so unique and distinctive as to be like a signature.’” Id. (citing State v. Carter , 714 S.W.2d 241, 245 (Tenn.1986)).

However, the Te

nnessee Supreme

Court has noted tha

t the mere existence of a common scheme or plan is not a proper justif ication for adm itting evidence of other crimes. Rather, admission of evidence of othe r crime s which tends to show a comm on scheme or plan

is proper to show id

entity, gui

lty knowledge, intent, motive, to rebut a defense of mistake or accident, or t

o establish

someother relevant issue. Unless expressly tied to a relevant issue, evidence of a

common scheme or plan can only serve to encourage the jury to conclude that since the defendant committed the other crime, he also committed the crime charged. Id. at 239 n.5. The court has also stated that “a common scheme or plan for severance

purposes is the same as a common scheme or plan for evidentiary purposes.” Id. at 240 n.7. Thus, Tennessee Rule of Evidence 404(b) is also relevant to our analysis of this issue. See State v. McCary
, 9 22 S.W.2d 511, 513-14 (Tenn. 1996).

The crimes in this

case can be construed as being part of a common scheme or plan in that the evidence shows a distinctive design. The Def endant committed a

ll of the offenses against friends of his daughter

who were visiting the Defendant’s home. The Defendant provided each victim with alcohol and marijuana. Furthermore , i n each instance except that involving M.B., the Defendant touchedthe victim or

tried to remove her shorts while she was “passed out” on his daughter’s bed.

Howeve r, we canno t conclude that evidence of each of the crimes in this case “would be admissible

upon the trial of the others,” Tenn. R. Crim. P. 14(b)(1), to establish some other relevant issue. Although offens

es that are part

of a common scheme

or plan are ty

pically off

ered to establish the identity

of the perpetrator, Moore , 6 S.W.3d at 239; McCary , 922 S.W.2d at 514, ide ntity is not

a material issue in this case. Nor do we find that the evidence is admissible to establish some other relevant issue. We therefore conclude that the trial court erred by consolidating the cases for trial.-10-

Nevertheless,

we conclude that this error was harmless. Rule 52(a) of the Tennessee Rules of Criminal Procedure provides that “[n]o judgment of conviction shall be reversed on

appeal except for errors which affirmatively appear to have af fected the result

of the tri al on the me

rits.” We
cannot conclude that co

nsolidation of all c

harges in this ca

se affirmativel

y affected the r

esult of the trial. With the exception of evidence presented concerning one count of sexual battery against A.Y. which we have reversed on the basis of insufficient evidence, the State present ed amp le, strong evidence to suppo

rt each separa

te conviction in this case. Not only did each of the victims in this

case testify unequivocally that the Defendant committed the crimes of which he was convicted, but the Defendant’s daughter verified much of the girls’ testimony

. In addition, G.M. verified A.Y.’s testimonyas to at least one count of sexual battery . We b elieve that if this evidence had been pres e nted at separate trials, the trials would have yielded the same convictions. We therefore conclude that the trial court’s error in consolidating the separate counts for trial was harmless.

III. SENTENCI

NG

Fin all y, the Defendant contends that he was improperly sentenced. The trial court sentenced the Defendant to two years incar cerati on for each count of sexual battery and to two y ears incarceration

for statutory rape. The trial court or dered that the De

fendant’s sente

nce for two count

s of sexual battery be served concurrently , but consecutive to allother sentences. The court ordered that all other sentences be served consecutively. The Def endant contests the length of his sentences. He also argues that the trial court erred by ordering consecutive sentences and by deny ing alternative sentencing.

When a criminal defendant challengesthe length, range, or manner of service of a sentence, the reviewing cour

t must conduct a de novo review of the sentence with a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40 -35-401(d). This presumption, however, “is conditioned upon the affirma

tive 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). In the e ven t that the record fails to show such consideration, the review of t he s ent ence is p urel y de novo

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

In making its senten cing determination, the trial court, at the conclusion of the sentencing hearing, determines the range of sentence and then determines the specific sen tence and the pr

opriety of sentencing alternatives by considering (1) the e vidence, if any, received at the trial and the sentencing hearing, (2) the presentence report, (3) the principles of

sentencing and

arguments as to sentencing al ternatives, (4) the nature and characteristics of the criminal conduct involved, (5) evidence and information offered by the parties on the enhancement and mitigating factors, (6) any
statements

the defendant wishes to make in the defendant's behalf about senten cing, and (7) the potential for rehabilitation or treatment. Tenn. Code Ann. § § 40-35-210(a), (b), -103(5); State v. Williams , 920 S.W.2d 247, 258 (Tenn. Crim. App. 1995).-11-

Sexual battery and statutory rape are both Class E felonies. Tenn. Code Ann. § 39-13-505(c), -506(c). The presumptive sentence to be imposed by the trial court for a Class B, C, D or E felony is the minim um within the applic able range unless the re are enhancement or mitigating factors present. Tenn. Code Ann. § 40 -35-210(c). I

f there are enh

ancement or mitig

ating factors,

the court must start at the presumptive sentence, enhance the sent ence as appropriate for the enhancement factors, and then reduce the sentence in the range as appropriate for the mitigating factors. Id. § 40- 35-210(e). The weight to be given each factor is left to the discretion of the trial judge. Shelton , 854 S.W.2d at123. However, the sentence must be adequately supported by the re cordand comply w

ith the purposes and principles of the 1989 Sentencing Reform Act. State v. Mos s , 7 27 S.W.2d 229, 237 (Tenn. 1986).

When imposing a senten

ce, the trial cou

rt must make specif

ic findings of fact

on the record supporting th e sente nce. Tenn. Code Ann. § 40-35-209(c). The record should also include any enhancement

or mitigating factors applied by the trial court. Id. § 40-35-210(f). Thus, if the trial court wishes to enhance a sentence, the court must state its reasons on the record. The purpose of recording the court’s reasoning is to guarantee the preparation of a proper r ecord for a

ppell ate review. State v. Ervin , 939 S.W.2d 581, 584 (Tenn. Crim. App. 1996).

If our review reflects that the trial court followed the statutory sentencing proce dure, that the

co urt imp osed a lawful sentence after having given due consideration and prope r weight to the factors and principles set out under the sentencing law, and that the trial court’s findings of fact are adequately supported by the re cord, then we may not modify the sentenc e "even if we would have preferred a different result." State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). The defendant bears the burden of showing the impropriety of the sentence imposed. Ashby , 823 S.W.2d at 169.

I n th is case, the trial court failed to ma

ke an affirmativ

e showing on the r

ecord that it considered

all relevant fac

ts, circumstances, and sentencing principles in sentencing the Defendant. Our review of the

Defendant’s se

ntence is thus de novo without a presumpti on of correctne

ss.

A. LENGTH OF SENTENCES

The Defendant first contests the length of his senten ces. The sen tencing range for a Range I standard offender convicted of a Class E felony is between one and two years. Tenn. Code Ann. § 40-35-112(a)(5). In sentencing the Defendant, the tria l court applied enhancement factor (4), that “[a] victim of the offe

nse was particula

rly vulnerable because of age,” and enhancement

factor (15), that “[t]he defendant

abused a position of public or private trust . . . .” Id. § 40-35-114(4), (15). The trial judge explained,

“[T]hese children

came home to someo

ne’s home

where . . . one of the

parents is there, and . . . we all know what type of trust children should, at least, put in a parent.” In addition, the trial court stated, [The Defen dant] was not charged or convicted of what I guess would have been contributing to the delinquency of a minor, in that the proof showed he provided alcohol and/or marijuana

to these youn

g girls at his home. And I think the Court will-12-

have to consider that a

s an enhancing f

actor, even thou

gh he wasn’t co

nvic ted or charged with those offenses . . . .

The trial court should

not have consider

ed “proof . . . [tha

t the Defendant] provided alcohol and/or marijuana to

[the victims] at his home.” As the trial court pointed out, the Defendant was not charged or convicted of any

crime based on these allegations, and we note that there is no catch-all provision for enhancement factors in our statute. See Tenn. Code Ann. § 40-35-114.

The trial court, however, correctly applied enhanceme n t factor (4) in sentencing the Defendant

for each remaining count of sexual battery. Tennessee Code Annotated § 40-35-114(4) provides for enhancement of a defendant’s sentence when the victim of the offense is

“particularly vulnerable

because of age or physical or mental disability . . .

.” A victim is partic

ularly vulne

rable if, due to her physica

l or m ental limitations, she is incapable of resisting, summoning help, or testifying against the perpetrator. State v. Adams , 864 S.W.2d 31, 35 (Te nn. 1993); State v. Clayton EugeneTurner , No. 03C01-9805-CR-000176, 1999 WL 817690, at *18 (Tenn. Crim. App. 1999). Furthermore, a victim’s physical or mental limitation may be temporary or self-induced. Clayton Eugene Turner , 1999 WL 817690, at *18. The State must prove that a victim’s limitations render her particularly vulnerable, and this is a factual issue to be determined by the trier of fact on a

caseby-case basis. State v. Gray , 960 S.W.2d 598, 611 (Tenn. Crim. App. 1997).

The Defendant committ

ed three of the remaining counts of sexual battery aga inst victim A.Y. while she was asleep and intoxicated. He committed one count of sexual battery ag

ainst G.M. while she was intoxicated. We c onclude that the sl

eepin g, intoxicate

d minor victims in this case were particularly

vulnerable to the Defendant’s attack. See id. ; Clayton Eugene Turner , 1999 WL 817690, at *18. The record thus justifies application of enhancement factor (4) as to all remaining counts of sexual battery.

We note that enhancement factor (4) does not apply with reg ard to the statutory rape of M.B., who was neither intoxicated nor asleep at the time of t he offense. However, we conclude that enhancement

factor (15) wa

s appropriately

applied with

regard to the statutory

rape of M.B., a

s well

as with regard to all remaining counts of sexual battery. See State v. Jernigan , 929 S.W.2d 391, 397 (T enn. Crim. App. 1996); State v. Hayes , 899 S.W.2d 175, 187 (Tenn. Crim. App. 1995). The Defendant

was entrusted wit

h the care of the

vic tims whil e they visited his home and on other occasions. He befriended the victims by buying them

gifts, treating them to dinner and movies, and engaging in other activitie

s with them. After g

aining their tru

st and friendship, he used his influence to get them into an in

toxicated state

so that he could sexual

ly abuse the

m. We therefore a

gree with the trial court that the Defendant abused a position of private trust when committing these c rimes.

With regard to miti

gating facto

rs, the trial cour

t made the followin

g findings: Mitigating factors in this case, certainly the proof is plain, and the pre sen tence report is plain, that [the Defendant] completed a high schooleducation. He evidently has an excellent employment record with the company he’s employed

with. He also-13-

has an exemplary military record. He has no prior criminal record, to speak of, other than I believe one convict ion of reckl ess drivin g. . . . I note over here

in this presentence repo rt, tha t in

. . . Hou sto n Co unt y .

. . al though the case was never prosecuted, he was charged w ith . . . [a]ttempted spousal rape.

. . . Another charge, here, that he brought up to the probation officer that he was charged

with contributing to the delinquency of a minor in December of 1995. I don’t know any

thing about that. B

ut here again,

that obviously

involved a minor child in some respe

ct.

In our de novo review of the re cord in this

case, we find

that mitigating factors were present in this case: The Defendant does have an exc ell ent wor k hi sto ry. In addition, we note that he has only one prior conviction for reckless dri ving in 1996. See Tenn. Code Ann. § 40-35-113(13). However, we give the mitig ating factors l

ittle weight and c

onclude that the mi

tigati ng factor s are outweighed

by the enhancement fa

cto r in this case. We therefore conclude that the trial court properly se

ntenced the Def

endant to two y

ears on each co

unt.

B. CONSECUTIVE SENTENCES

The Defe ndant next contests the imposit ion of consecutive

sentences. With re

gard to consecutive sentencing, the trial court stated,

The State has also requested co nsecutive senten

cing and [h]as file

d some factors for the Court to consider. And of course, the Court has to consider the facts of this case. I’v e al read y mentioned the fact that he did provide whiskey and marijuana to

these children a

nd then attempted t

o . . . fondle

them or undress them while they slept in his daughter’s bedroom.

It is within the sound discret ion of t he trial court whether or not an offender should be sentenced consecutively or

concurrently. State v. James , 688 S.W.2d 463, 465 (Tenn. Crim. App. 1984). A court may order multiple sentences to run consecutive

ly if it finds by a preponderance of the evidence that

(1) [t]he defendant is a

professional cr

iminal who has k

nowi ngly devoted such defendant’s life to criminal acts as a major source of livelihood; (2) [ t]he def

endant is an offe

nder whose reco

rd of criminal ac

tivity is extensive; (3) [t]he defendant is a dangerous mentally abnormal person so declared by

a competent psy

chiatrist who conc

ludes as a result o

f an investigati

on prio r t o sentencing that the defendant’s criminal conduct has been characterized by a pattern of repetitive or c

ompulsive behavior

with heedless indif

ference to con

sequences; (4) [t]he defendant

is a dangerous offender whose behavior indicates little or

no regard for human life, and no hesitation about committing a crime in which th e risk to human life is high;-14- (5) [t]he defendant is convicted o f two (2) or more statutory offenses involvin g sexual abuse of a minor with consideration of the aggravating circumstances arisi ng from the relationship between the defendant and victim or victims, the time span of

the defendant’s undetected sexual activity; the nature and scope of the sexual acts and the extent of the residual, physical and mental damage to the victim or vict

ims; (6) [t]he defendant is sentenced for an offense committed while on probation;

or (7) [t]he defenda

nt is sentenced fo

r criminal contem

pt. Tenn. Code Ann. § 40-35-115(b)(1)-(7).

In this case, factor (5) is applicable and supports imposition of consecutive sentences. See State v. Lane , 3 S.W.3d 456, 459-60 (Tenn. 1999). The Defendant was entrusted with the care of the minor victims

when they visited his home and used his influence as the parent of their friend to gain access to the girls. He exploited his relationship with the victims by smoking marijuana and drinking alcohol with the g irls, often encouraging

them to drink as muc

h as possible appa

rently so that they would be less likely to protest his subsequent actions. The Defendant then sexually abused the girls, o ften while they slept and often de

spite their protes

ts. The Defenda

nt persisted in this reprehensible

conduct for a number of months, stopping only at the time of his arrest. I n addition,

we note that two of the

victims submitted vic

tim impact statements describing the emotio nal damage they suffered as a result of the Defendant’s abuse. We therefore conclude that the tr ial court’s imposition of consecutive sentences is amply supported by the re cord.

C. ALTERNATIVE SENTENCING

Fin all y, the Defendant argues that he should have been granted some fo rm of alternative sentencing. Although the trial court obviously denied alternative sentencing in thi

s case, the court failedto state on the record its re asons for do ing so. The court also failed to make an affirmative showing on the record that it considered sentencing principles regarding alternative sentencing. As previously stated, we therefore will proceed to review this issue de novo

.
Tennessee Code A

nnotated § 40-35- 102(5) provides a s follows: In recognition that

state prison capacities and the funds to build and maintain them

are limited, convicte

d felons committing the most severe offenses, possessing criminal histories evincing a clear disregard for the laws and morals of society, and evincing failure of past efforts at rehabilitation shall be given first priority regarding sentencing involving incarceration . . . . A de fendant who does

not fall within this c

lass of offender

s “and who is an esp

ecially mitig

ate d offender or standard offender convicted of a Class C, D, or E felony is presumed to be a

favorable candidate for

alternative sen

tencing in the absence of eviden ce to the contrary.” Tenn. Code Ann. § 40-35-102(6). Furthermore, u nless sufficient evidence rebuts the presumption, “[t]he trial court
must presume that a de

fendant sente

nced to e ight years or less and not an offender for whom incarceration

is a priority

is subject to alter

native sentencin

g and that a

sentence other than-15-

incarceration

would result

in successful rehabilitation . . . .” State v. Byrd , 861 S.W.2d 377, 379-80 (Tenn. Crim. App. 1993); see also Tenn. Code Ann. § 40-35-303(a). T he Defendant, as a standard offender c onv icted of Class E felonies, is presumed to be a favorable candidate for alternative sentencing.

However, all offenders wh o meet the criter

ia are not entitled to relief; instead, sentencing issues must be determined by the facts and circumstances of each c ase. See State v. Taylor , 74 4 S.W.2d 919, 922 (T enn. Crim. App. 1987) (citing State v. Moss , 727 S.W.2d 229, 235 (Tenn. 1986)). Even if a defendant is presumed to be a favorable candidate for alternative sentencing under Tennessee Code Annotated § 4 0-35-102 (6), the statutory presumption of an alternative sentence may be overcome if

(A) [c]onfinement i

s necessary

to protect society by restraining a defendant who has a long his

tory of cri minal conduct; (B) [c]onfin ement is ne cessary to avoi d depreciat ing the se riousness of the offense o r co nfinement is parti

cularly sui

ted to provide an e

ffective deter

rence to others likely to commit similar offenses; or (C) [m]easures less restrictive than confinement have frequently

or recently been applied unsuccessfully to the defendant . . . . Tenn. Code Ann. § 40-35-103(1)(A)-(C). In choosing among possible sentencing alternatives, the trial court should also consider Tennessee Code Annotated § 40-35-103(5), which states, in pertinent part, “The potential or lack of potentialfor the rehabilitation or treatment of a defendant should be considered

in determining th

e sentence alte

rnative or leng

th of a term to

be imposed.” Id. § 40-35- 103(5); State v. Dowdy , 894 S.W.2d 301, 305 (Tenn. Crim. App. 1994).

The Defendan t in this case does not have a long history of criminal conduct. Nor ha v e
measures less restrictive than confinement been frequently

or recently

applied unsuccessfully to the D efendant. Furthermore, n o evidence was o

ffered that con

finement would pro

vide dete rrence t o others likely to commit similar offenses. See State v. Hooper , 29 S.W.3d 1,6 (Tenn. 2000) (stating that the rec ord must contain some proof of the need for deterrence before a defenda nt who i s presumedeligible for alternative sentencing may be inca rcer ated). The remaining question, then, is whether confinement is necessary in this case to avoid depreciating the seriousness of the offense. To deny an alte

rnative sentenc

e solely based upon the nature of the offense, the circumstances of the offense must be “‘especi

ally violent,

horrifying

, shocking, repr

ehensible, offe

nsive, or otherwi

se of

an excessive or

exaggerated

degree,’ and

the nature of the

offense must outwe

igh all factors favoring probation.” State v. Hartley , 818 S.W.2d 370, 374-75 (Ten n. Crim. Ap p. 1991) (ci ting State v. Cleavor , 691 S.W.2d 541, 543 (Tenn. 1985)).

We conclude that in this case, confinement is necessary “to avoid deprec iating the seriousness of the offense.” Tenn. Code Ann. § 40-35-103(1)(B). We must again emphasize the seriousness

of the crimes in this case. TheDefendant brought minor friends of his young daughter to his home

and provided alcohol and marijuana to the girls to gain the

ir trust and frien

dship and to gain access to the g

irls. According to the

Defendant’s daughter, the Defendant asked her to ensure that young girls often visited

their home, and on at least one occasion, he also asked his daughter to-16-

ensure that one of her friends became inebriated while visiting the

m. He then sexually

abused the girls while

they slept. We conclude that this evidence supports the trial court’s denial of alternative sentencing.

Ac co rdi ngly, we REVERSE the Defendant’s conviction for sexual battery in case number 8652, count one and dismiss that charge. We AFFIRM the convictions and sentences for the remaining counts, resulting in an effective sentence of eight y ears.



### ______________________________ ROBERT W. WEDEMEYER, JUDGE