FILED

March 18, 1999

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

JANUARY SESSION, 1998

STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9701-CC-00003

)

Appellee, )

)

) WAYNE COUNTY

VS. )

) HON. JAMES L. WEATHERFORD

JEFFREY EDWARD PITTS, ) JUDGE

)

Appellant. ) (Direct Appeal - Class E Felony)

FOR THE APPELLANT: FOR THE APPELLEE:

W.C. KEATON JOHN KNOX WALKUP

LAURA METCALF Attorney General and Reporter

Keaton, Turner & Spitzer

P. O. Box 789 KAREN YACUZZO

102 N. Court Street Assistant Attorney Geneal

Hohenwald, TN 38462 425 Fifth Avenue North

Nashville, TN 37243-0493

MIKE BOTTOMS

District Attorney General

STELLA HARGROVE

Assistant District Attorney

Public Square

Columbia, TN 38401

OPINION FILED ________________________

AFFIRMED IN PART; REVERSED IN PART

JERRY L. SMITH, JUDGE
 

1

 It is the policy of this Court to not reveal the names of victims of sexual abuse.

 

2

 Phillip Garner, Executive Director for Buffalo River Services, testified that to qualify as a client at that

organization, an individual must have an IQ of sixty-nine (69) or below. 

-2-

OPINION

The appellant, Jeffrey Edward Pitts, was convicted by a Wayne County jury

of two (2) counts of sexual battery, a Class E felony. He was sentenced as a

Range I offender to consecutive terms of one (1) year incarceration for each

offense. On appeal, Appellant presents the following issues for our

consideration: (1) whether there was a fatal variance between the indictment and

the state’s proof at trial; (2) whether the evidence was sufficient to sustain

Appellant's convictions; (3) whether the prosecution's closing argument was

improper; (4) whether the trial court erred in failing to instruct the jury on the

lesser included offense of assault; and (5) whether the trial court properly

sentenced Appellant. After a thorough review of the record before this Court, we

conclude that the state failed to establish venue on Count One; therefore,

Appellant’s conviction on Count One is reversed. In all other respects, the

judgment of the trial court is affirmed.

FACTUAL BACKGROUND

D.Q., 1the victim, worked at Buffalo River Services, an organization

employing mentally disabled individuals.2 He was forty-three years old at the

time of trial in 1996 and had worked for Buffalo River Services since 1973. Part

of D.Q.'s employment included traveling periodically to nearby towns with a

supervisor in order to empty donation boxes. Appellant was such a supervisor.
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D.Q. testified that during one of their trips, Appellant asked D.Q. to perform

oral sex on Appellant, but D.Q. refused. Appellant persisted in soliciting oral sex

from D.Q., and D.Q. ultimately acquiesced on two different occasions. According

to his testimony, D.Q. complied with Appellant’s wishes because Appellant was

“the boss” and because D.Q. had been directed to do whatever the boss said. 

On the first occasion, Appellant and the victim drove alone to Hohenwald

to collect donations from the donation boxes when Appellant again asked D.Q.

to perform oral sex on him. Appellant told D.Q. that the oral sex would “make

[Appellant] feel good.” Appellant also warned the victim not to tell anyone about

what had occurred. D.Q. could not recall the specific location of the first incident.

D.Q. testified that the second incident occurred on the day immediately

following the first incident. He recalled that the second incident occurred while

he, Appellant, and another Buffalo River Services client, Larry Griffin, were

returning from Hohenwald after retrieving collections from the donation boxes.

D.Q. testified that the second incident occurred near a cafe and a service station

located in Waynesboro, Tennessee. 

At trial, the state called Larry Griffin to testify. However, Griffin was

unresponsive to the oath, as well as to questions posed by the prosecution and

defense counsel. 

Both D.Q. and his father testified that D.Q. experienced seizures. D.Q.

admitted that during a seizure, it was not uncommon for him to grab people or

objects nearby. The victim’s father explained that it was not unusual for D.Q. to

have two or three seizures per day. 

The state presented documentation from Buffalo River Services which

showed that the victim had traveled with a supervisor to assist in picking up

clothing for the donation boxes on June 22 and June 30 of 1994. The
 

3

 It was the state’s theory at trial that because Appellant was responsible for completing the “vehicle

documentation sheet,” he falsified the documents to conceal his criminal activity.

 

4 Because D.Q. was epileptic, Appellant testified that he never would have attempted to drive the truck accompanied only by

D.Q. He explained that whenever he traveled with any client having a seizure disorder, such as epilepsy, he would take along a

third person, either another staff member or a client with no history of seizures, to assist in restraining the individual in the event

of a seizure until he could pull off the road. Appellant further testified that Griffin also experienced seizures.

 

5

 Appellant was originally indicted on two (2) counts of aggravated sexual battery. However, the state

subsequently amended the indictment to charge Appellant with two (2) counts of sexual battery.

-4-

documentation further showed that Larry Griffin was “possibly” riding with the

victim on June 30. The state further presented “vehicle documentation sheets”

from June 22 and June 30, which showed that Appellant was traveling on those

days. However, the “vehicle documentation sheets” indicated that Appellant was

traveling with supported employment clients on those days. The victim was a

“day services client,” not a “supported employment client.” Laura Brewer, the

program director at Buffalo River Services, testified that the driver of the vehicle

was the person who completed the “vehicle documentation sheet.”3

Appellant testified in his own behalf at trial. He stated that he worked at

Buffalo River Services from approximately April 1987 until August 1994. 

Appellant supervised both the vocational rehabilitation program and supported

employment program . 

Appellant testified that because D.Q. was a day services client, he was not

under Appellant's supervision. Appellant denied ever being alone with the victim

in a vehicle during the summer of 1994. He further testified that he was never in

a vehicle with D.Q. and Larry Griffin during that time period.4 Appellant stated

that there were only two occasions where he traveled with “day services clients”

during the summer of 1994, and D.Q. was not one of those clients. Additionally,

he denied falsifying the “vehicle documentation sheets” on any occasion. 

The jury returned guilty verdicts on two (2) counts of sexual battery.5 The

trial court sentenced Appellant as a Range I offender to consecutive terms of one
-5-

(1) year for each count. Additionally, the trial court denied alternative sentencing

and ordered that Appellant serve his sentence in incarceration. From his

convictions and sentences, Appellant brings this appeal.

FATAL VARIANCE

In his first issue, Appellant argues that the evidence presented at trial

differed from the dates elected by the state in the bill of particulars to such a

degree as to present a fatal variance between the indictment and the proof. He

claims that because the victim testified that the offenses occurred on consecutive

days, but the state elected non-consecutive days as the dates of the offenses, he

was severely prejudiced.

Tenn. Code Ann. § 40-13-207 provides, “[t]he time at which an offense was

committed need not be stated in the indictment. . . unless the time is a material

ingredient of the offense.” Indeed, it is only necessary that the evidence prove

that the offense occurred prior to the return of the indictm ent. State v. Anderson,

748 S.W.2d 201, 203 (Tenn. Crim. App. 1985). A variance between the

indictment and the proof at trial will not be held fatal unless it is both material and

prejudicial. State v. Holloman, 835 S.W.2d 42, 45 (Tenn. Crim. App. 1992). “A

material variance will not be found where the allegations and proof substantially

correspond.” Id.

In the present case, the indictment alleged that the offenses occurred

during the summer of 1994. In response to Appellant’s motion for a bill of

particulars, the state furnished the defense with three possible dates of the

offenses: April 4, June 22, and June 30, 1994. At the conclusion of the state’s

proof, the prosecution narrowed its election to June 22 and June 30, 1994. 
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Contrary to Appellant’s assertion, we find no variance between the

indictment and the proof presented at trial. The indictment alleged that the

offenses occurred in the sum mer of 1994, and the state elected the dates of the

offenses to be June 22 and June 30, 1994. The victim testified that the offenses

occurred in the “summertime” because the trees were green. Furthermore, the

state presented documentation that the offenses occurred on June 22 and June

30, 1994.

The only evidence presented by the state that the offenses occurred on

consecutive dates was the testimony of the victim, a mentally disabled person.

The fact that the victim testified to consecutive dates when the state relied upon

non-consecutive dates merely amounts to a conflict in proof for the jury to

reconcile. The majority of the state’s proof supported the allegation that the

offenses occurred on June 22 and June 30, 1994. There was no variance,

material or otherwise, between the indictment and the state’s proof at trial.

This issue is without merit.

SUFFICIENCY OF THE EVIDENCE

In his next issue, Appellant argues that the evidence is insufficient to

support his convictions for sexual battery. Specifically, he claims that the state

failed to prove the elements for two counts of sexual battery. Further, he insists

that the victim was an “accomplice” to any sexual activity, and therefore, his

testimony must be corroborated. Finally, Appellant asserts that the state failed

to establish that the offenses occurred in Wayne County and, thus, failed to

establish venue by a preponderance of the evidence.

A. Standard of Review
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This Court reviews a challenge to the sufficiency of the evidence according

to certain well-settled principles. On appeal, “the state is entitled to the strongest

legitimate view of the evidence as well as all reasonable and legitimate

inferences that may be drawn therefrom.” Id. (citing State v. Cabbage, 571

S.W.2d 832, 835 (Tenn. 1978)). Where the sufficiency of the evidence is

contested on appeal, the relevant question for the reviewing court is whether any

rational trier of fact could have found the accused guilty of every element of the

offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99

S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Harris, 839 S.W.2d 54, 75

(Tenn. 1992); Tenn. R. App. P. 13(e). In conducting our evaluation of the

convicting evidence, this Court is precluded from reweighing or reconsidering the

evidence and may not substitute its own inferences for those drawn by the trier

of fact. State v. Morgan, 929 S.W .2d 380, 383 (Tenn. Crim. App. 1996); State

v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).

A verdict of guilty by the jury, approved by the trial judge, accredits the

testimony of the state's witnesses and resolves all conflicts in the testimony in

favor of the state. State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994); State v.

Harris, 839 S.W.2d at 75. Although an accused is originally cloaked with a

presumption of innocence, a jury verdict removes this presumption and replaces

it with one of guilt. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence,

on appeal, the burden of proof rests with Appellant to demonstrate the

insufficiency of the convicting evidence. Id.

B. Elements of Sexual Battery

Appellant contends that the state failed to prove the essential elements of

sexual battery beyond a reasonable doubt. Firstly, he claims that there is

insufficient evidence for the jury to find that the victim was “mentally defective”
-8-

under Tenn. Code Ann. § 39-13-501(3). He further argues that the state failed

to prove that the sexual contact was “unlawful.” Finally, he asserts that the state

failed to prove two (2) instances of sexual contact.

1.

Sexual battery is “unlawful sexual contact with a victim by the defendant

or the defendant by a victim” where the “defendant knows or has reason to know

that the victim is mentally defective, mentally incapacitated or physically

helpless.” Tenn. Code Ann. §§ 39-13-503(a)(2), 39-13-505(a) (1991). Under

Tenn. Code Ann. § 39-13-501(3) (1991), a person is “mentally defective” if the

person “suffers from a mental disease or defect which renders that person

temporarily or permanently incapable of appraising the nature of his conduct.”

At trial, the victim’s father testified that D.Q. was approximately eight (8)

years old when he was institutionalized due to a m ental disability. D.Q.

remained in the institution for about ten (10) years. The victim’s father testified

that, although D.Q. can write his own name, he has never learned how to read.

Furthermore, the victim’s father testified that D.Q. had never dated, did not

discuss sex and had never “act[ed] out sexually.” Additionally, Phillip Garner,

Executive Director of Buffalo River Services, testified that to qualify as a client at

that organization, an individual must have an IQ of sixty-nine (69) or below. D.Q.

began working at Buffalo River Services in 1973 and continued to do so during

the trial in 1996. 

Appellant argues that because the victim testified on several occasions that

he knew the sexual activity was “wrong,” and because he refused to participate

in the sexual activity on a prior occasion, then he was capable of “appraising the

nature of his conduct.” However, knowing that such sexual activity is “wrong”

does not necessarily equate with being capable of appraising the nature of his
 

6

 Indeed, the trial court commented at the sentencing hearing, “I’m convinced from the testimony, from his family

members, from seeing the [victim] myself, seeing him testify, that he is severely mentally handicapped . . .”

-9-

conduct. D.Q., as a client of Buffalo River Services, had to have an IQ of sixtynine (69) or below in order to participate in the program. Moreover, the jury was

able to observe the victim during his testimony and determine his mental

capacity.6 There was sufficient evidence from which a jury could find that the

victim was “mentally deficient” under the statute. See Tenn. Code Ann. § 39-13-

501(3) (1991).

2.

Appellant also argues that the state failed to prove that the sexual contact

was “unlawful.” He cites Campbell v. Sundquist, 926 S.W.2d 250 (Tenn. App.

1996), for the proposition that consensual, homosexual activity is not an illegal

act. Apparently, the appellant’s argument is that an “unlawful” sexual act is

synonymous with a non-consensual act; therefore, if the victim consented to the

sexual contact, there is no sexual battery.

In State v. Jones, 889 S.W.2d 225 (Tenn. Crim. App. 1994), the defendant

raised a similar argument with regard to aggravated rape. This Court rejected the

argument, stating, “[e]ven though the term ‘unlawful’ may generally refer to nonconsensual acts, the defense of consent is still not available when the factor

elevating the crime from simple rape to aggravated rape is the age of the victim.”

Id. at 227. We find the same reasoning applies in this case. Because lack of

consent is not an element to sexual battery under this portion of the statute, the

consent of the victim is never a defense. See Tenn. Code Ann. §§ 39-13-

503(a)(2), 39-13-505(a) (1991). The use of the word “unlawful” in the statute

does not alter this.
-10-

3.

Appellant further argues that the state merely proved one instance of

sexual battery; therefore, one of his convictions must be reversed. Although the

victim’s testimony is admittedly confusing, he explained to the jury that he refused

to participate in the sexual activity when he and Appellant were on a trip to

Collinwood. He then testified that the first time he participated in the activity, he

and Appellant were alone in the truck on the way to Hohenwald. The second

incident occurred on the way back from Hohenwald, and Larry Griffin was present

in the truck. The victim did not describe both incidents in detail, but testified that

both incidents lasted approximately five (5) minutes. The state presented

sufficient evidence of two (2) separate instances of sexual activity.

This issue is without merit.

C. Accomplice Testimony

Next, Appellant contends that the victim was an accomplice to any sexual

activity. Therefore, he contends that the victim’s testimony must be corroborated.

Appellant maintains that, without such corroboration, his convictions for sexual

battery can not be sustained.

It is well-established that a conviction may not be based solely upon the

uncorroborated testimony of an accomplice. State v. Bigbee, 885 S.W.2d 797,

803 (Tenn. 1994); State v. Harris, 839 S.W .2d 54, 75 (Tenn. 1992); State v.

McKnight, 900 S.W.2d 36, 47 (Tenn. Crim. App. 1994). Appellant relies on State

v. Schimpf, 782 S.W.2d 186, 196 (Tenn. Crim. App. 1989), for the proposition

that “a child, even though legally incapable of consenting to a crime, may

nevertheless be an accomplice, thus necessitating corroboration of his
 

7

 We are perplexed as to how a “victim” can be an “accomplice” under any circumstance. The two terms are

mutually exclusive under Tennessee law. A “victim” is statutorily defined as “the person alleged to have been

subjected to criminal sexual conduct.” Tenn. Code Ann. § 39-13-501(8) (1991) (emphasis added). However, an

“accomplice”is one who “knowingly, voluntarily, and with common intent unites with the principal offender in the commission

of a crime.” State v. Green, 915 S.W.2d 827, 831 (Tenn. Crim. App. 1995) (emphasis added). Furthermore, the “test” to

determine if a person is an accomplice to an offense is whether that person could be indicted for or convicted of that

offense. State v. Green, 915 S.W.2d at 831; State v. Lawson, 794 S.W.2d 363, 369 (Tenn. Crim. App. 1990).

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testimony.” Appellant urges this Court to extend this “victim-accomplice”7 rule to

this case so that we should find that the victim, notwithstanding his inability to

appreciate the nature of his conduct, was a willing participant and, thus, an

accomplice to any sexual activity. This we decline to do.

First, the proposition in Schimpf was effectively overturned in 1991 with the

enactment of Tenn. Code Ann. § 40-17-121, which provides:

[i]f the alleged victim of a sexual penetration or sexual contact within

the meaning of § 39-13-501 is less than thirteen (13) years of age,

such victim shall, regardless of consent, not be considered to be an

accomplice to such sexual penetration or sexual contact, and no

corroboration of such alleged victim's testimony shall be required to

secure a conviction if corroboration is necessary solely because the

alleged victim consented.

Secondly, an “accomplice” is one who “knowingly, voluntarily, and with

common intent unites with the principal offender in the commission of a crime.”

State v. Robinson, 971 S.W .2d 30, 42 (Tenn. Crim. App. 1997). A “mentally

defective” person under Tenn. Code Ann. § 39-13-501(3) is one who “suffers

from a mental disease or defect which renders that person temporarily or

permanently incapable of appraising the nature of his conduct.” Tenn. Code Ann.

§ 39-13-501(3). It would be absurd to find a that person who is “incapable of

appraising the nature of his conduct” could “knowingly, voluntarily, and with

common intent” participate in a criminal offense with the principal offender. By

its very definition, a “mentally defective” person is incapable of consenting to

these sexual acts.

Moreover, the evidence presented in this case does not support the

allegation that the victim was a willing participant to the sexual activity. D.Q.
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testified that he acquiesced only because Appellant was his boss, and he had

been directed to do whatever the boss told him to do. D.Q. was not an

“accomplice” to these acts; therefore, no corroboration was required.

This issue has no merit.

D. Venue

Appellant further claims that the state failed to present sufficient proof that

the offenses occurred in Wayne County. The state concedes that venue was not

established as to Count One of the indictment, but argues that sufficient evidence

was presented that Count Two occurred in Wayne County. We agree.

Article I, § 9 of the Tennessee Constitution provides, “in all criminal

prosecutions, the accused hath the right to. . . a speedy public trial, by an

impartial jury of the County in which the crime shall have been committed. . . .”

See also Tenn. R. Crim. P. 8(a) (“Except as otherwise provided by statute or by

these rules, offenses shall be prosecuted in the county where the offense was

committed.”). Venue is a jurisdictional fact and not an element of the charged

offense. State v. Bloodsaw, 746 S.W.2d 722, 723-24 (Tenn. Crim. App. 1987).

The prosecution must satisfy its burden of proving that the offense was

committed in the county alleged in the indictm ent. State v. Smith, 926 S.W.2d

267, 269 (Tenn. Crim. App. 1995). In a criminal case, venue must be proved by

a preponderance of the evidence. Tenn. Code Ann. § 39-11-201(e); State v.

Marbury, 908 S.W.2d 405, 407 (Tenn. Crim. App. 1995); State v. Davis, 872

S.W.2d 950, 952 (Tenn. Crim. App. 1993). This evidence may be either direct,

circumstantial, or both. State v. Smith, 926 S.W.2d at 269.

At trial, D.Q. could not recall the specific location of the first incident. He

stated only that he and Appellant were traveling toward Hohenwald at the time

of the first sexual incident. Because they were traveling from Waynesboro to
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Hohenwald during the incident, D.Q. and Appellant might have crossed the

county line. Thus, the prosecution failed to establish venue regarding this first

incident. Therefore, Appellant’s conviction as to Count One must be reversed.

However, D.Q. stated that the second instance of sexual contact occurred

while returning from Hohenwald. He testified that they were in Waynesboro, near

a service station and a cafe. D.Q. also testified that Waynesboro is in Wayne

County. Only slight evidence is needed to satisfy the prosecution's burden of

proving venue so long as that evidence is uncontradicted. State v. Bloodsaw,

746 S.W.2d at 724. The victim’s testimony that the second incident occurred in

Wayne County is uncontradicted. Accordingly, the state sufficiently established

venue with regard to Count Two.

IMPROPER ARGUMENT

Appellant next contends that the state made improper remarks during its

closing argument. Firstly, Appellant complains that because Griffin was unable

to testify, the prosecution improperly argued that Larry Griffin was present in the

vehicle with Appellant and the victim. Secondly, he argues that the state

compounded this error by implying that Griffin’s testimony would have bolstered

D.Q.’s testimony had Griffin testified.

The portion of closing argument complained of by Appellant reads as

follows:

If you’re going to have a witness, it’s usually somebody who

is incapable of coming forward and corroborating. Too young

generally would be the case to document and corroborate what’s

going on.

And isn’t that what we have in this case? Of all the people

that could have been victimized by Jeff Pitts and could have been
-14-

a witness to these illicit relations would be Mr. Griffin. You’ve been

able to observe that he--Well, you've observed what you observed

from him and I’ll leave it there.

“Trial courts have substantial discretionary authority in determining the

propriety of final argument. Although counsel is generally given wide latitude,

courts must restrict any improper commentary.” Coker v. State, 911 S.W.2d 357,

368 (Tenn. Crim. App. 1995) (citing Sparks v. State, 563 S.W.2d 564 (Tenn.

Crim. App. 1978)). The broad discretion accorded to trial courts in controlling the

argument of counsel “will not be reviewed absent abuse of that discretion.” Smith

v. State, 527 S.W .2d 737, 739 (Tenn. 1975); see also State v. Payton, 782

S.W.2d 490, 496 (Tenn. Crim. App. 1989). The bounds of proper closing

argument are delineated by the facts in evidence. State v. Pulliam, 950 S.W.2d

360, 368 (Tenn. Crim. App. 1996). Conversely, facts not in evidence may not be

the subject of comment by counsel during closing argument. State v. Mackey,

638 S.W .2d 830, 836 (Tenn. Crim. App. 1982).

Appellant has waived his right to raise this issue on appeal due to his

failure to contemporaneously object to the prosecution’s allegedly improper

remarks at trial. State v. Green, 947 S.W.2d 186, 188 (Tenn. Crim. App. 1997);

State v. Seay, 945 S.W.2d 755, 762 (Tenn. Crim. App. 1996); State v. Little, 854

S.W.2d 643, 651 (Tenn. Crim. App. 1992); Tenn. R. App. P. 36(a). Moreover,

Appellant did not make proper citations to the record to such erroneous

argument. “Issues which are not supported by argument, citation to authorities,

or appropriate references to the record will be treated as waived in this court.”

Tennessee Court of Criminal Appeals Rule 10(b).

In any event, we do not view the prosecution’s argument as erroneous. 

The victim testified that Larry Griffin was present during the second instance of
 

8

 The parties do not dispute that assault is a lesser included offense of sexual battery. See State v. Howard, 926

S.W.2d 579, 586 (Tenn. Crim. App. 1996).

-15-

sexual abuse. Furthermore, the state presented documentation that Griffin was

possibly traveling with the victim on June 30, the date of the second sexual

assault. Although Griffin was not able to testify, the jury observed the trial court

and counsel attempting to administer the oath. The state’s argument was based

upon evidence that had been presented to the jury. Furthermore, Appellant has

not established how the alleged improper argum ent affected the jury’s verdict.

See State v. Pulliam, 950 S.W.2d 360, 367 (Tenn. Crim. App. 1996).

This issue is without merit.

LESSER INCLUDED OFFENSE OF ASSAULT

Appellant next complains that he was denied his constitutional right to trial

by jury as a result of the trial court's failure to instruct the jury on assault as a

lesser included offense of sexual battery.8

 We disagree.

Initially, we must note that Appellant failed to include this issue in his

motion for new trial. Therefore, the issue is waived. Tenn. R. App. P. 3(e); State

v. Maddox, 957 S.W .2d 547, 553 (Tenn. Crim. App. 1997); State v. Spadafina,

952 S.W .2d 444, 451 (Tenn. Crim. App. 1996).

Nevertheless, we will address the merits of this argument briefly. The

accused in a criminal prosecution has a right to a correct and complete charge

of the law applicable to the case. State v. Phipps, 883 S.W.2d 138, 142 (Tenn.

Crim. App. 1994); State v. Wright, 618 S.W.2d 310, 315 (Tenn. Crim. App. 1981).

The trial court’s failure to instruct the jury on any lesser included offenses raised

by the evidence denies a defendant his constitutional right to trial by jury. State
-16-

v. Wright, 618 S.W.2d at 315 (citing State v. Staggs, 554 S.W.2d 620, 626 (Tenn.

1977)).

Tenn. Code Ann. § 40-18-110 provides in part:

(a) It is the duty of all judges charging juries in cases of criminal

prosecutions for any felony wherein two (2) or more grades or

classes of offense may be included in the indictment, to charge the

jury as to all of the law of each offense included in the indictm ent,

without any request on the part of the defendant to do so.

Tenn. Code Ann. § 40-18-110(a); see also State v. Jones, 889 S.W.2d at 230.

Tennessee case law is clear that a defendant is entitled to a jury instruction

“on all lesser included offenses where ‘any facts. . . are susceptible of inferring

guilt of any lesser included offense.’” State v. Trusty, 919 S.W.2d 305, 310

(Tenn. 1996) (quoting State v. Wright, 618 S.W.2d at 315.).

At trial, Appellant denied being alone in the truck with D.Q. on the days in

question. Appellant completely denied having any physical contact whatsoever

with the victim. The extent of the touching was not an issue at trial. “When there

is no evidence to support a lesser included offense so that the accused can be

guilty only of the greater offense or no offense at all, it is not error to refuse to

instruct the lesser included offenses.” State v. Barker, 642 S.W.2d 735, 738

(Tenn. Crim. App. 1982); see also State v. Larry Fields, C.C.A. No. 11 (Tenn.

Crim. App. filed March 20, 1991, at Jackson), perm. to app. denied (Tenn. July

1, 1991); State v. David H. Owen, C.C.A. No. 1209 (Tenn. Crim. App. filed May

26, 1989, at Knoxville), perm. to app. denied (Tenn. October 2, 1989). Because

the evidence supported either a finding that Appellant was guilty of sexual battery

or nothing at all, an instruction on assault was not warranted under the facts of

this case.

This issue has no merit.
-17-

SENTENCING

In his final issue, Appellant complains that his sentence is excessive.

Specifically, he alleges that the trial court misapplied certain enhancement

factors. Additionally, he argues that he was erroneously denied alternative

sentencing. Finally, he claims that the trial court erred in imposing consecutive

sentences.

A. Standard of Review

When an appellant challenges the length, range, or manner of service of

a sentence, this Court conducts a de novo review with a presumption that the

determination of the trial court was correct. Tenn. Code Ann. § 40-35-401(d).

However, this presumption of correctness is “conditioned upon the affirmative

showing that the trial court in the record considered the sentencing principles and

all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169

(Tenn. 1991). In the event that the record fails to demonstrate such

consideration, review of the sentence is purely de novo. Id. If appellate review

reflects that the trial court properly considered all relevant factors and its findings

of fact are adequately supported by the record, this Court must affirm the

sentence. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). In

conducting a review, this Court must consider the evidence, the presentence

report, the sentencing principles, the arguments of counsel, the nature and

character of the offense, mitigating and enhancement factors, any statements

made by the defendant, and the potential for rehabilitation or treatment. State v.

Holland, 860 S.W.2d 53, 60 (Tenn. Crim. App. 1993). The defendant bears the

burden of showing the impropriety of the sentence imposed. State v. Gregory,

862 S.W .2d 574, 578 (Tenn. Crim. App. 1993).
 

9

 Appellant does not argue that he should be sentenced as an Especially Mitigated Offender under Tenn. Code

Ann. § 40-35-109. However, this Court finds that he would not be entitled to sentencing as an Especially Mitigated

Offender. We are authorized, under our power of de novo review, to consider any enhancement factors supported

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B. Length and Manner of Sentence

Appellant challenges the trial court’s finding of enhancement factors and

further challenges the court’s decision to deny alternative sentencing.

1.

Appellant was convicted of sexual battery, a Class E felony. Tenn. Code

Ann. § 39-13-505(b) (1991). As a Range I standard offender convicted of a Class

E felony, Appellant’s statutory sentencing range was one to two years. Tenn.

Code Ann. § 40-35-112(a)(5). The trial court found that the following

enhancement factors should apply: (1) the victim of the offense was “particularly

vulnerable because of age or physical or mental disability,” Tenn. Code Ann. §

40-35-114(4); and (2) the “offense involved a victim and was committed to gratify

the defendant's desire for pleasure or excitement,” Tenn. Code Ann. § 40-35-

114(7). In mitigation, the trial court applied Tenn. Code Ann. § 40-35-113(13) in

light of Appellant’s regular employment, meeting his father's health care needs,

and making current child support payments. The trial court imposed a sentence

of one (1) year, the minimum within the range, for each conviction. The trial court

further denied alternative sentencing in an effort to avoid depreciating the

seriousness of the offense.

2.

Appellant claims that the trial court erred in applying Tenn. Code Ann. §40-

35-114(4) and (7) as both enhancement factors are elements of the offense of

sexual battery. The state concedes that these factors were misapplied, and we

agree. However, because the trial court sentenced Appellant to the minimum

sentence within the range, he is not entitled to a reduction in his sentence.9
by the record. State v. Claybrooks, 910 S.W.2d 868, 873 (Tenn. Crim. App. 1994). Appellant has a history of prior

criminal conduct as he admitted to illegal marijuana use in the pre-sentence report. Tenn. Code Ann. § 40-35-

114(1). Furthermore, although rejected by the trial court as an enhancement factor, we find that Appellant abused a

position of private trust. Tenn. Code Ann. § 40-35-114(15).

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3.

Appellant further argues that the trial court erred in denying alternative

sentencing. An especially mitigated or standard offender convicted of a Class C,

D or E felony is presumed to be a favorable candidate for alternative sentencing

in the absence of evidence to the contrary. Tenn. Code Ann. § 40-35-102(6). A

trial court must presume that a defendant sentenced to eight (8) years or less and

who is not an offender for whom incarceration is a priority is subject to alternative

sentencing. State v. Byrd, 861 S.W.2d 377, 379-380 (Tenn. Crim. App. 1993).

It is further presumed that a sentence other than incarceration would result in

successful rehabilitation unless rebutted by sufficient evidence in the record. Id.

at 380. However, although a defendant may be presum ed to be a favorable

candidate for alternative sentencing,the defendant has the burden of establishing

suitability for total probation. State v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim.

App. 1996); see Tenn. Code Ann. § 40-35-303(b). Even though probation must

be automatically considered, “the defendant is not automatically entitled to

probation as a matter of law.” Tenn. Code Ann. § 40-35-303(b) Sentencing

Commission Comments; State v. Hartley, 818 S.W.2d 370, 373 (Tenn. Crim.

App. 1991).

In determining whether to grant or deny probation, a trial court should

consider the circumstances of the offense, the defendant’s criminal record, the

defendant’s social history and present condition, the need for deterrence, and the

best interest of the defendant and the public. State v. Grear, 568 S.W.2d 285,

286 (Tenn. 1978); State v. Boyd, 925 S.W.2d 237, 244 (Tenn. Crim. App. 1995);

State v. Black, 924 S.W.2d 912, 917 (Tenn. Crim. App. 1995). The defendant’s
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lack of credibility is also an appropriate consideration and reflects on a

defendant’s potential for rehabilitation. State v. Zeolia, 928 S.W.2d 457, 463

(Tenn. Crim. App. 1996).

As Appellant was convicted of a Class E felony, he is entitled to the

presumption in favor of alternative sentencing. Tenn. Code Ann. § 40-35-102(6).

However, Appellant is not eligible for community corrections because he was

convicted of committing sexual battery, a crime against the person. Tenn. Code

Ann. § 40-36-106(a)(2).

At the time of sentencing, Appellant had no prior criminal record. He

testified at his sentencing hearing that if the court placed him on probation, he

would be willing to comply with the terms of his probation, including attending

counseling.

This Court has previously held that the fact that the convicted crime is a

crime of violence can be a factor which would weigh against probation. State v.

Gennoe, 851 S.W .2d 833, 837 (Tenn. Crim. App.), perm. to app. denied (Tenn.

1992). Furthermore, a breach of trust can also be a basis for denying probation.

Id.

This Court concludes that the trial court did not err in denying probation.

The circumstances of the offense were such that Appellant, as the victim’s

supervisor, pursued the victim for sexual relations. The victim had been

instructed to obey his supervisors and ultimately acquiesced in the sexual activity

as a result. The proof demonstrated that the victim was severely mentally

handicapped, as noted by the trial court in sentencing. Notwithstanding the

presumption in favor of alternative sentencing, the circumstances of the offense

along with the patent breach of trust support the trial court’s conclusion that

probation was not warranted in this case.
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This issue is without merit.

C. Consecutive Sentencing

Finally, Appellant contends that the trial court erred in imposing

consecutive sentences for his convictions. However, because we must reverse

Appellant’s conviction for sexual battery in Count One due to the state’s failure

to establish venue, this issue is moot.

CONCLUSION

We find that the evidence is insufficient to establish that the offense of

sexual battery in Count One occurred in W ayne County; therefore, Appellant’s

conviction in Count One is reversed. However, because we conclude that no

other reversible error exists in the record, we affirm the trial court’s judgment with

respect to Count Two.

____________________________________

JERRY L. SMITH, JUDGE

CONCUR:

___________________________________

DAVID H. WELLES, JUDGE

___________________________________

THOMAS T. WOODALL, JUDGE