# FILED
March 18, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE JANUARY SESSION, 1998

STATE OF TE NNE SSE E, ) C.C.A. NO. 01C01-9701- CC-00003 ) Appellee, ) ) ) WAYNE COUNTY VS. ) ) HON. JA MES L. WEAT HERFORD JEFFREY EDWARD PITTS, ) JUDGE ) Appe llant. ) (Dire ct Ap pea l - Cla ss E Felo ny)

FOR THE APPELLANT : FOR THE APPELLEE : W.C. KEATON JOHN KNOX WALKUP LAURA METC ALF Attorney Generaland Reporter Keaton, Turner & Spi tzer P. O. Box 789 KAREN YACUZZO 102 N. Court Street Assistant Attorney Geneal Hohenwald, TN 38462 425 Fifth Avenu e North Nashvill e, TN 37243-0493 MIKE BOTTOMS Distri ct Attorney General STELLA HARGROVE Assistant Distri ct Attorney Public Squ are Columbia, TN 38401

OPINION FILED ________________________ AFFIRMED IN PART; REVERSED I N PART JERRY L . SMI TH, J UDGE1 It is the policy of this Cour t to not reveal the names of v ictims of sexual abuse.

2 Phillip Garner, Exe

cutive 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

T he appellant , Jeffr

ey Edward Pitts, was convi cted by a Wayne County jur y of two (2) count

s of sexua l b attery, a Class E fel ony. He was sentenced as a Range I offende r to consecutive terms of one (1) year incarcerat ion for each offense. On ap peal, Ap pellant pre sents the fo llowing issues for our considerati on: (1) whether there was a fatal variance bet ween the indi ctment and the state’s

proof at t rial; (2) whether the e vid ence was s ufficien t to sus tain Appe llant's convicti ons; (3) whet her the prosecut ion's cl osing ar gumen t was improper; (4) whe ther t he trialcourt err ed in fai ling to instruct the jury

on the lesser included of

fense of assault; and (5)whethert he trial c ourt pr operly sentenced Appellant. After a tho rough review o f the record before this Cou rt, we conclude that the state fai led to establish venueon Count One; theref ore, Appe llant’s convicti on on Count One is reve rsed. In al l other r espects, t he judgment of t he trialcourt is affirmed.

FACTUA L BACKGROUND

D.Q., 1 t he victi m, worked at Buffalo River Ser vices, an organizati on employing mentally disabled i ndividuals. 2 He was forty-three year s old at t he ti me of trial in 1996 and ha d worked for B uffalo River Services since 1973 . Part of D. Q.'s e mplo ymen t includ ed trav eling p eriodic ally to ne arby to wns w it h a supervisor

in order to empty donation boxes. Appell ant was such asupervisor.-3- D.Q. testified that during one of their trips, Appellant ask ed D.Q. to pe rform oral sex on App ell ant , bu t D. Q. refused. Appel lant persi sted in soli citingoral sex from D.Q., and D.Q. ultim ately acqu iesced o n two differe nt occas ions. According to his test imony, D.Q. compli ed with Appell ant’s wi shes because Appellan t was “the bos s” and b ecaus e D.Q. h ad bee n directed to do wh atever the boss sa id. On the first occasion, Ap pellant and the victim drove alone to Hoh enwa ld to collectdonations f rom the donati on boxes when A ppel lan t ag ain aske d D.Q. to perform oralsex on him. Appel lan t t old D.Q. that the oralsex would “make [Appella nt] feel good. ” Appellant also warned t he victi m not to tel l anyone about what had o ccurre d. D.Q . could not rec all the s pecific locati on of the first incide nt. D.Q. testified that the second incide nt occurred on the day immedi atel y followi ng t he first in ciden t. He re called that the seco nd inc ident o ccurre d while he, Appellant, and anoth er Buffalo River S ervices client, Larry Griffin, were returni ng from Hohenwald after retri eving c oll ections from the donation boxes. D.Q. testified that the second incide nt occurred near a cafe and a service station located in Wa ynesbo ro, Ten nesse e. At trial , the state called Larry Griff in to testify . However, Griffin was unrespon sive to the oath , as well as to questionsposed by the pros ecution and defens e coun sel. Both D.Q. and his fathertestified that D .Q. expe rienced seizures

. D.Q.
a dmitted that duri ng a seizure, it was not uncommon for him to grab peopl e or objects nearby. The vi ctim’s father expl ained that it was n ot u nusu al for D. Q. to have two or three se izures pe r day. The s tate pre sente d doc ume ntation from B uffalo R iver Se rvices w hic h sho wed that the victim had t raveled wi th a supervi sor to assi st in p icking u p clothi ng for the donation boxes on Ju ne 22 and June 30 of 1994. The3 It was the state’s theory at trial that because Appellant w as responsible for completing the “v ehicle documentati on sheet,” he fa lsified the do cuments to co nceal his cri minal activit y.

4 Because D.Q. w

as epileptic, Appe

llant testified tha

t he never would hav

e attempted to driv

e the truck accom

panied only by D.Q. He explained tha t whenever he traveled with any client having a seizure disorder, such as ep ilepsy, he would take alo ng a third person, either anothe r staff me mber or a client w

ith no history of se

izures, to assist in restraining the indiv idual 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 i ndicted on two (2) counts of aggravated sexual batter y. However, the state subsequentl y amended the in dictment to ch arge Appellan t with two (2) counts of sexual battery. -4- documentation further show ed that Larr y Griff in was “possi bly” ri ding with the victim on June 30. The state further presented “vehicle documentation sheets” from June 22 and June 30, which showed that Appel lant was t raveli ng on those days. However, the “

vehicle doc umentation sheets” i ndicated t hat Appellant was travel ing with supported employment clients on those days. The victim was a “dayservices c lient, ” not a “suppor ted employment cl ient.” Laura Brewer, t he program director

at Buffa lo River S ervices , testified that the driver o f the veh icle was the person who co mplete d the “veh icle docu menta tion shee t.” 3 Appellant

tes tifi ed in his own behalf at trial. He stated that he worked at Buffa lo River S ervices from a pprox imate ly April 1 987 until Aug ust 199 4. Appellant

supervised both the vocati onal rehabil itati on program and s uppo rted emplo ymen t program

. Appellant

testified that beca use D.Q . was a da y services client, he was not underAppellant' s supervisi on. Appellant denied ever bei ng alone with the victim in a vehicle d uring the s ummer of 1994. He furt her testified that he wa s neve r in
a vehicle with D.Q. and L a rry Grif fin duri ng that ti me period. 4 Appellant stated thatthere were only two occasi ons where he traveled w ith “day services cli ents” during the summer of 1994, and D.Q. was not one of those clients. Add itionally, he den ied falsifying th e “vehicle d ocum entation s heets” o n any oc casion. The jury returned guilty verdi cts on two (2) counts of sexual battery. 5 The trialcourt sentenced Appellant as a Range I offender to consecutive terms of one-5-

(1) year for

each co unt. Additional ly, t he trialcourt deni ed alternat ive sentenci ng and ordered that

Appellant s erve his sen te nce in incarc eration . From his convic tions a nd se ntenc es, Ap pellan t brings this ap peal.

FATA L VARI ANCE

In his fi rst iss ue, Appellant argues that the e vidence presented at t rial differ ed from th e date s elect ed by th e state in the b ill of parti cular s to such a degree as to present

a fatal variance bet

ween the indictm ent and the proo f. He cla imsthat because t he victi m testifi ed that the of fenses occurred on consecutive days, but the state elected non-consecutive days as the dates of the of fenses, he was severely

prejudiced. Tenn. Code Ann. § 40-13-207 provides, “[t] he time at whi ch an offense was committed need not bestated in th e indictm ent. . . unless the t ime is a materi al ingredient of the offense.” Inde ed, it is only necessa ry that the evidence prove thatthe offense oc curred prior to the retu rn of the indictm ent. State v. Anderson , 748 S.W.2d 201, 203 (Tenn. Cri m. App. 1985). A variance betw een the indict ment and the proof at trial will no t be he ld fatal unl ess it i s both materi al and prejud icial. State v. Holl oman , 835 S.W.2d 42, 45 (Tenn. Crim. App . 1992). “A material varian ce will not be found wherethe allega tions a nd pro of sub stantia lly correspon d.” Id. In the present case, the i ndictment al leged that the offenses occur re d during thesumm er of 19 94. In respo nse to Appell ant’s moti on for a bil l of particulars, the statefurnished the defense wi th three pos sible dates of t he offense s: April 4, June 22, and June 30, 19 94. At th e con clusio n of the state’s proof, the prosec ution nar rowed its election to June 2 2 and J une 30 , 1994.-6- Contrary to App ellant’s assert ion, we fi nd no variance between the indict ment and the proof pre sented at trial. The in dictme nt a lleged t hat the offensesoccurred in the sum mer of 1 994, an d the state elected t he dates of t he offensesto be June 22 and June 30, 1994. The victi m testifi ed that the offenses occurred in the “summertime” because the trees were green. Fur

thermore, t he state presented documentat ion that the of fenses occurr

ed on June 22 and June 30, 1994. The only evidence prese nted by the st ate that t he offenses occurred on
consecu tive dates w as the tes timony o f the victim, a ment ally di sabled person. The fact that the victim testified to cons ecutive dates when the state reli ed upon
non-cons ecutive dates merely am ounts to a conflict in p roof for the jury to reconcil e. The majority of the state’s proof

supported the allegati on that the offens es occurred on June 22 and J une 30, 1994. There was n o var iance , mate rial or oth erwise , betwe en the indictm ent an d the s tate’s p roof at tr ial. This issu e is withou t merit.

SUFFICI ENCY OF THE EVI DENCE

In his ne xt issue , Appe llant arg ues th at the e vid e nce is insu fficient to support his con vi cti ons for sex ual batter

y. Spec if ica ll y, he c lai ms that the sta te failedto prove theeleme nts for two c ounts o f sexual ba ttery. Furthe r, he insists thatth e vict im wa s an “a ccom plice” to any se xual ac tivity, and therefo re, his testimony must

be corroborated. Finally, Appell ant asserts that thestate fai led to establ ish t hat the offe nses o ccurred in W ayne C ounty an d, thus, failed to establi sh venue by a preponder ance of the evi dence. A. Standard of Rev iew-7- This Court reviews a chal lenge to t he suffi ciency of the evidence according to cer tai n wel l- settl ed pr inc ipl es. On appea l, “the state is entitl ed to the strongest legitimate view of t he evidence a s well as all rea sonab le and leg itimate inferences

that may be drawn therefrom.” Id. (citi ng State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 19 7 8)). W here th e suffic iency o f the evid ence is contested on appea l, the relevant question for the reviewing cou rt is whether any rationaltrier

of fact could have fou nd the accused gui lty of every el ement of the offense beyond a reaso nable d oubt. Jack son v. V irginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 2 789, 61 L.Ed.2d 560 (19 79); State v. Harris , 83 9 S.W.2d 54, 75 (Tenn. 1992); Tenn. R. App. P. 13(e). In conducti ng our evaluat ion of the convicti ng evidence, this Court is precl uded from reweighing or reconsideri ng the evidence and maynot substit ute its own inferences for those dr

awn by the trier of fact. State v. Morgan , 929 S.W .2d 380 , 383 (T enn. C rim. App . 1996); State v. Matt hews , 805 S.W .2d 776, 779 (Tenn. Crim . App. 1990 ). A verdict

of guil ty by th e jury, approved by t he trialjudg e, accredi ts the testimon y of the s tate's w itness es an d reso lves all c onflicts in the te stimo ny in favor of the state. State v. Cazes , 875 S.W.2d 253, 25 9 (Ten n. 1994 ); State v. Harris , 839 S.W.2d at 75. Although an acc used is o riginal ly cloaked with a presumption of innocence , a jury verdictremoves this presumption and replaces it with one of gu ilt. State v. Tug gle , 639 S.W.2d 913, 914 (Tenn. 1982) . Hence,
on appeal, t he burden o f proof r ests wit h Appellant t o demonstrate th e insufficienc y of the con victing evide nce. Id. B. Elements o f Sexual Battery Appellant

contends that

the state failed to prove t he essentialelements of sexual batter

y be yon d a reaso nabl e dou bt. Fir stly, he c lai ms tha t there is insuffi cientevidence for the jury to find that the victim was “ mentally def ective”-8-

underTenn. Code Ann. § 39-13-501(3).He further argues that t he state failed to prove that the sexu al contact was “unlawful.” Finally , he asserts that thestate failed to pro ve two (2) in stance s of sexua l contact. 1. Sexual battery is “un lawful sexu al contac t with a victim by th e d efendant
or thedefenda nt by a v ict im”where the “defendant knows or has reason to know thatthe vict im is men tal ly defec tive, me ntally inc apac itated o r physic ally helpless .” Tenn. Co de Ann. §§ 39-13-503 (a)(2 ), 39 -13-505(a) ( 1991). Under Tenn. Code Ann. § 39-13 -501( 3) (199 1), a pe rson is “men tall y defec tive” if the person “suffers from a m ental disease o r defect which ren ders that pe rson tempo rarily or perm anently inc apable of appra ising the n ature of h is condu ct.” At trial, the vict im’s fat her testified that D.Q. was approxi mately eight (8) years ol d w hen he was institu tionalized due to a m ental disa bility. D.Q. remained in t he insti tution f or about ten ( 10) years. The victi m’s father t estifi ed that, alth ough D.Q. c an write his own na me, he has ne ver learne d how to read. Furtherm or e, the vict im’s fat her testified that D.Q. had never dated, did not discuss sex and had never “act[ed] out sexually.” Additiona lly, Phillip Garner, Executive Director of Buffal o River Servi ces, test ifiedthat to qualif y as a client

at thatorganizati on, an indi vidual must have an IQ of six ty- nin e (69 ) or

bel ow. D.Q. began workin g at Bu ffalo River Servi ces in 1973 and cont inued to do so during the trial in 199 6. App ellant

argues that because the vi ctim test ified on several occasions tha t he knew th e sexua l activity was “w rong,” an d beca use he refused to participa te in the sexual activi ty on a pri or occasion, then he was c apab le of “apprai sing the nature of his conduct .” However, knowing that such sexua l activity is “ wrong” do es not necess arily equate with being capable of ap praising the natu re of hi s6 Indeed, the trial court commented at the sentencing hearing, “I’m conv inced from the testimony, from hi s family members, from seeing the [victim] my self, seeing him testify, that he is severely mentally handicappe d . . .” -9- condu ct. D.Q., as a cl ient of Buffalo River Servi ces, had to have a n IQ of sixtynine (69) or below in orderto parti cipate i n the program. Moreover, t he jury was able to observe t he victi m during his testimony and determine his mental capacity. 6 There was suff icient evidence fr

om which a jury could fi nd that the victim was “m entally defic ient” und er the statu te. See Tenn . Code Ann. § 39-13- 501(3) (199 1). 2. Appellant

also argu es that the state failed to prove that the sexual contact
was “unlawful.”

He cites Campbell v. Sundquist , 926 S.W.2d 250 (Ten n. Ap p. 1996), for the propositi on that consensual, homosexual activity is not an ill egal act. App are ntly, the a ppella nt’s arg ume nt is tha t an “un lawful” s exual a ct is synonymous with a non -conse nsual ac t; therefor e, if t he victi m consented to the sexual contac t, there is no sexual ba ttery. In State v. Jones , 889 S.W.2d 225 (Tenn. Cri m. App. 1994), the def endant raised a similar

argument with r

egard to aggravated rape. Thi s Court rej ected the argum ent, stating , “[e]ven thoug h the te rm ‘un lawful’ may generally refer to nonconsensual acts , the de fense of consent is sti ll not availabl e when the factor elevati ng the crime f rom simple rape to aggravated r ape is the age of

the victim.” Id. at 227. We find th e same reasoning app lies in this case. Because lac k of consent is not an el ement to sexual battery under this

portion of

the statu te, the consent of the vi ctim is never a defense. See Tenn. Code Ann. §§ 39-13- 503(a)( 2), 39- 13-505 (a) (1991 ). The us e of the w ord “unla wful” in the s tatute does not alter thi s.-10- 3. Appellant

further argues that the state merely proved o ne instance of sexual battery ; therefo re, one of his convictions mustbe reversed. Although the victim’s testimony

is admittedly confusi ng, he explai ned to the jury t hat he refused to partici pate in th e sexual act ivit y when h e and Appe lla nt were o n a trip to Collinwood. He then testified that the fir st time he par

ticipated in theactivity, he and Appe llant we re alo ne in the truck o n the way to Hohenwal d. The second incident occurred on t he way back from H ohenwa ld, and Larry Griffi n was present in the truck. T he victim did not descri be both inci dents in detail, but testified that both incidents lasted ap proxima tely five (5) m inutes. T he sta te prese nted sufficient evidence o f two (2) separate instances of se xual activity. This issu e is withou t merit.

C. Accompli ce Testimony Next, Appellant

contends that

the vict im was an accomplice to any sexual activity. Therefore, he contends tha t the vi cti m’s testi mony must be corroborated. Appellant

maintai ns tha t, wit hout such corr oboration, his convi ctions for sexual battery can not be sustai ned. It is wel l-estab lis hed that a convi ction may not be based solely upon the uncorroborated testi mony of an accomplice. State v. Bigbee , 885 S.W.2d 797, 803 (Tenn . 1994); State v. Ha rris , 839 S.W .2d 54, 75 (Tenn . 1992); State v. McKnight , 900 S.W.2d 36, 47 (Tenn. Cri m. App. 1994). Appel lant rel ies on State

v. Schimpf , 782 S.W.2d 186, 196 (Tenn. Cr im. App. 198 9), for t he propositi on that“a chil d, even though l egally i ncapable of con senting t o a crime, may neverthel es s be an acco mplic e, thus nece ssitatin g corro boratio n of his7 We are perplexed as to how a “v ictim” can be an “accomplice” under any circumstance. The two ter ms are mutually exclusive under Tennessee law. A “victim” is statutorily defined as “ the person alleged to have been subjected tocriminal sexual conduct.” T enn. Code Ann. § 39-13-501(8) (1991) (emphasis added). How ever, an “accomplice”is one who “knowingly, v oluntarily, and wit

h common intent unites with the principal offe

nder in the commi

ssion 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 t o an offense is whether that person could be indicted for or con victed 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). -11- testimon y.” Appe llant urg es this Court to extend this “victim-accomplice” 7 rule to this case so that we should find that the victi m, notwithstanding his i nabil ity to ap preciate the nature of his conduct, was a will ing parti cipant and, thus, an accomplice to any

sexual act ivit

y. This we decl ine to do. First, the proposi tion in Schimpfwas effect ively overturned in 1991 wit h the enactment of Tenn. Code Ann. § 40-17-121, which provides: [i]fthe alle ged vic tim of a sexu al pen etration or sexu al con tact with in the meaning of § 39-13- 501 is less t han thirteen (13) years of age, such victim shall, regardless of consent, not be consider ed to be an accomplice to such sexual penetr ation or sexual contact , and no corroborat ion of such allegedvictim's testim ony sha ll be require d to secure a convicti on if corr oboration is necessary solely be cause the alleged vi ctim consented. Second ly, an “accom plice” is one who “knowingly, voluntarily, and wi th common intent unites with th e princip al offender in the commissi on of a crime .” State v. Robinson , 971 S.W .2d 30, 42 (Tenn . Crim. A pp. 199 7). A “me nta ll y defectiv e” person under

Te nn. Code Ann. § 39-1 3-501(3) is one who “suffers from a mental disease or defect whi ch renders that person te mporarily

or perm anen tly incapable of ap praising the natu re of his conduct .” Tenn. Code Ann. § 39-13 -501(3). It would be absurd to f ind a that person who is “ incapable of appraisingthe natur e of h is condu ct” could “k nowing ly, voluntarily, an d with
common intent” p articip at e in a c rimi nal of fense with the princi pal of fender . By its very definition, a “men tally de fective” per son is inca pable o f consen ting to these sexual acts. Moreover, the evi d ence presented i n this case does not support the allegati on that the vict im was awil li ng pa rti cip antto t he sexualact ivity. D.Q.-12-

testif ied that he acqui esced only because Appel lant was hi s boss, and he ha d been directed to do wha tever the b oss told h im to do. D .Q. was not a n “accomplice”

to these acts; theref

ore, no corr

oboration was r

equired. This issu e has n o merit. D. Venue Appellant

further claims that

the statefailedto present s uffici ent proof t hat the offenses occ urred in W ayne Cou nty. The state concedesthat venue was not establi shed as to Count One of t he indict ment, butargues that suffi cient evidence was presented t hat Count Two occurred in Wayne County. We agree. Article I, § 9 of th e Te nnes see C onstit ution provides, “in allcriminal p rosecutions, the ac cuse d hath the righ t to. . . a sp eedy p ublic tria l, by a n impartialjury of the C ounty in w hich the c rime sh all have be en com mitted. .

. .” See also

Tenn. R. Crim. P. 8(a) (“Except as otherwi se provided by statute o r by these rules, of

fenses shallbe prosecuted i n t he county where t he offense was
com mitted.”). Venue is a jurisdict ional fa ct and not an el ement of the charge d offense

. State v. Bloodsaw , 746 S.W.2d 722, 723-24 (Tenn. Crim. App . 1987). The prosecuti on must satisf y its bur

den of provi ng that the offense was committed in the count y alleg ed in the indictm ent. State v. S mith , 926 S.W.2d 267, 269 (Tenn. Crim. App. 1995). In a criminal case, venuemust be proved by
a preponderance of the evidence. Tenn. Code Ann. § 3 9-11-20 1(e); State v. Marbury , 908 S. W.2d 4 05, 407 (Tenn . Crim. A pp. 199 5); State v. Davis , 872 S.W.2d 950, 952 (Tenn. Crim. A pp. 199 3). This evid ence m ay be eith er direct, circum stantial, or bo th. State v. S mith , 926 S.W.2d at 269. At tri al, D.Q. could not r ecal l th e spec ifi c locati on of the f irst in cide nt. He stated onl y that he and A ppella nt were travelin g towa rd Ho henw ald at th e tim e of the fir

st sex ua l incident. Be cause they were traveling from Wa ynesbo ro to-13-

Hoh enwa ld during the i ncident, D.Q. and A pp ellant mi ght have crosse d the county line. Thus, the prosecut ion fail ed to establ ish venue regar ding this f irst incident . Therefore, Appellant’ s convict ion as to Count One must be reversed. Howeve r, D.Q. stated t hat the second instance of sexual contact occurred while returni ng from Hohenwald. He testifi ed that they were in Waynesboro, near a service sta tion and a cafe. D.Q . also te stifi ed thatWaynesboro is in Wayne County. Only sli ght evidence i s needed to sati sfy the pr osecution' s bu rden of proving ve nue s o long as that eviden ce is unc ontradicte d. State v. Bloodsaw , 746 S.W.2d at 724. The victi m’s testi mony that the second incident occurred in Wayne Coun ty is uncon tradicted. Accordingly, the statesuffic iently establi shed venue with r

egard to Count Two.

IMPROPER ARGUMENT

Appellant ne xt contends that the sta te mad e impro per rem arks du ring its closing argument. Fir stly, Appellant complains that because Griffin wasunab le to testif y, the pr osecution i mproperly argu ed that Larr y Griff in was present in the vehicle with Appellant and the vi ctim. Secondly, he argues t hat the state compounded this err

or byimplyin g that G riffin’s testimony woul d have bolster ed D.Q.’s test imony had Griffin testified. Th e portion of

closing ar

gument complained of by Appellant r

eads as follows: If you’ re going to h ave a witness, it’s usually s omebody who is incapable of

coming forward andcorroborat ing. Too young gene rally would be the case to doc ume nt and corrob orate w hat’s going on. And i sn’t that w hat we have in this cas e? O f all the p eople that could have been vi ctimized by Jeff Pit ts and could have bee n-14- a witness to these il lici t relat ions would be Mr. Grif fin. You ’ve been able to observe that he--Well, you've ob served what you observed from him and I’ ll l eave it t here.

“Trial courts have s ubsta ntia l discreti onary author ity i n determining the p ropriety of final argu ment. A lthough couns el is gene rally given w ide latitu de , courts must restrict any im proper com mentary.” Coke r v. State , 911 S.W.2d 357, 368 (Tenn. Crim. App. 1995) (cit ing Sparks v. State , 563 S.W.2d 564 ( Tenn. Cri m. App. 1978 )). The broad discret ion accorded to trialcourts i n controll ing the argument of cou nsel “w ill not be reviewed absent abuse of that discretion.” Smith

v. State , 527 S.W .2d 737 , 739 (T enn. 19 75); see also Stat e v. Payton , 782 S.W.2d 490, 496 (Tenn. Crim. App. 1989). The bounds of proper cl o sing argument are de lineate d by the facts in evidenc e. State v. Pull iam , 950 S.W.2d 360, 368 (Ten n. Crim . App. 1 996). C onver sely, fac ts not in evidence may not b e the subject of

comment by counsel during cl osing arg umen t. State v. Mackey , 638 S.W .2d 830, 836 (Tenn. Crim . App. 1982 ). Appellant

has wa ived his righ t t o raise th is issue on ap peal d ue to h is failure to contemporane ou sly objec t to the pr

osecution’ s allegedl y improper remarks at trial. State v. Green , 947 S.W.2d 186, 188 (Ten n. C ri m. App. 1997 ); State v. Seay , 945 S.W.2d 755, 762 (T enn. C rim. App . 1996); State v. Little , 854 S.W.2d 643, 651 (T enn. Crim. A pp. 1992); T enn. R. Ap p. P. 36(a). More over, Appellant

did not mak e proper citations to th e record to suc h err on eous argum ent. “Issues w hich are n ot supp orted by a rgume nt, citation to authorities,
or appropriate references t o the record wi ll betreated as waived in this court.” Tenne ssee Co urt of Criminal Ap peals Rule 1 0(b). In any event, we do not view t he pros ecuti on’s argu ment a s errone ous. The victim te stified th at Larr y Griffin was presentduring the s econd instance of8 The parties do not dispute t hat 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 documentat ion that Gr iffi n was poss ibly travelin g w ith the victim on June 30, the date of the second sexual
assau lt. Although Gri ffin was n ot able to testif y, thejury obser

ved the trial court and counsel attempting to admini ster the oat h. The state’ s argument was based upon evidence that had been presented to the j ury. Furt hermore, Appell ant has not estab lishe d how th e alleged improp er argum ent affecte d the jury’s ve rdict. See State v. Pulliam , 950 S.W .2d 360, 367 (Tenn. Crim . App. 1996 ). This issu e is withou t merit.

LESSER INCLUDED OFFENSE OF ASSAULT

Appellant

next complai ns that he was deni ed his constitutionalright to tri al by jury as a result of the t rial court' s failure to instruct the j ury on assault as a lesser included offense of sexu al battery. 8 We disagree. Initially, we must note that Appellant f

ailed to include this iss ue in h is motion for new trial. Therefore, t he issue is waived. Tenn . R. App . P. 3(e); State

v. Maddox , 957 S.W .2d 547 , 553 (T enn. C rim. App . 1997); State v. Spadafina , 952 S.W .2d 444, 451 (Tenn. Crim . App. 1996 ). Neverth eless, we wi ll address t he merits of thi s arg ument b riefly . Th e accused in a cri minal prosecut ion has a right to a correct andcomplete charge of the law ap plicable to the case

. State v. Phipps , 883 S.W.2d 138, 142 (Tenn. Cri m. App. 19 94); State v. Wright , 618 S.W.2d 310, 315 (Tenn. Crim . App. 1981 ). The trial cou rt’s failur

e to inst ruct the j ury on any lesser i ncluded offenses raised by the evidence denies a defendant hi s constit utional right to trial by jury. State-16-

v. Wright , 618 S.W.2d at 315 (ci ting State v. Staggs , 554 S.W.2d 620, 626 (Tenn. 1977)). Tenn . Code Ann. § 4 0-18-11 0 provide s in part: (a) It is the d uty of all ju dges charg ing jurie s in cases of cri minal prosecution s f or any f elony wherei n two (2) or more grades or classes of offen se m ay be in clude d in the indictm ent, to charge th e jury as to all of the law of each offense included in the indictm ent, without any

request on t he part of t he defendant to do so. Tenn . Code Ann. § 4 0-18-11 0(a); see also State v. Jones , 889 S.W.2d at 230. Tennessee case law is c lear that a defendant i s entitl ed to a jury i nstructi on “on all l esser i ncluded of fenses wh e re ‘any facts. . . are suscept ible of inferring guilt of any lesser include d offense.’” Sta te v . Trusty , 919 S.W.2d 305, 310 (Tenn. 1996) (quot ing State v. Wright , 618 S.W .2d at 315.). At trial, Appellant den ied being alon e in the truck with D .Q. on the days in question. Appellant

completely denied having any physi cal contactwhatsoever with thevi cti m. The extent of the touchi ng was not an iss ue at trial. “Whe n there is no evide nce to support a l esser incl uded offense so t hat the accused can be guilty only of the g reater offe nse or n o offense at all, it is not error to refuse to instruct the lesser

included offens es.” State v. Barker , 642 S.W.2d 735, 738 (Tenn. Crim. A pp. 198 2); s ee also State v. Larry Fiel ds , C.C.A. No. 11 ( Tenn. Cri m. App. fil ed March 20, 1991, a t Jackso n), perm. to app. denied (Ten n. July 1, 1991); State v. David H. Owen , C.C.A. No. 1209 (Tenn. Crim. App. filed May 26, 1989, a t Knoxville), perm.to app. deni ed (Tenn. O ctober 2, 1989 ). Because the evidence suppor

ted either

a findi ng thatAppellant wa s guilty of sexual battery
or nothing at

all, an instruc

tion on assault was not warr anted under the f

acts of this case. This issu e has n o merit.-17- SENTENCING

In his fi nal issue, Appellant complains that his sentence i s excessive. Specifically, he alleges t hat the trial court misapplied cer

tain enha ncement factors. Additionally, he argu es that he wa s erroneou sly denied alternative sentencing. Finall y, he claims that the trial court erred in imp osing cons ecutive sentences. A. Standard of Rev iew When an appellant challenges t he length, range, or manner of servi ce of
a sentence, t his Court conduct s a de novo rev iew with a p resumption that the determinati on of the trial court was corre ct. Tenn. Co de Ann. § 4 0-35-401(d ). Howeve r, this presum ption of correctne ss is “conditioned upon the affirm ative showing that thetrialcourt in the record cons idered thesentencing principl es and all relevant facts and circumstanc es.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). In t he event that the record fails to demonstrate such considerati on, revi ew of the sentenc e is purely de novo

. Id. If appel late rev iew reflects that the t rial court p roper ly considered al l relev ant factor

s and its f indings of fact are adeq uately s uppo rted by the rec ord, this Cour t mus t affir m the senten ce. State v. Fletcher , 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ). In conducting a review, this Cou rt must c onsider the evidence, t he presentence report, the sente ncing prin ciples, the a rgume nts of co unsel, t he nature and character

of the offen se, mitiga ting and e nhanc emen t f actors, an y statem ents made by the defen dant, and the potential fo r rehabilitation or treatm ent. State v. Holland , 860 S.W.2d 53, 60 (Tenn. Crim. App. 1993). The defendant bears the burden of s howing the impr opriety of the senten ce imp osed. State v. Grego ry , 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. Howev er, this Court finds that he w ould 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 -18- B. Length and Manner of Sentence Appellant

challenges t he trialcourt’s finding of enhancement factor s and further challenges t he court’s decision to deny alternative sentencing.

1. Appellant

was convicted of sexu al battery, a Class E felony . Tenn. Code Ann. § 39-13-505(b) (1991). A s a Ran ge I stand ard offen der con victed of a Class E felony, App ellant’ s statutory sentenci ng range was one to t wo years. Tenn. Code Ann. § 40-35-112( a)(5). The trialcourt found that the f ollowing enhancement factors shou ld app ly: (1) the victim of the off ense was “particu larly vul ne rable becau se of age or physica l or men tal disability,” Te nn. Co de Ann . § 40-35-114 (4); and (2) the “offense i nvolved a victim and was co mm itted to gratify the d efe ndant's desi re for pl easure or excitement,” Tenn. Code Ann. § 40-35- 114(7). In mitigation, the trial court applie d Te nn. C ode A nn. § 4 0-35- 113(1 3) in light of Appellant’s r

egular employment, meeting his father' s health care needs, and making current child support payments. The trial court i mposed a sentence of one (1) year , the mini mum within therange, fo r each co nviction. The trial court further denied alternative sentencing i n an effort to avoid depr

eciati ng the seriousness of

the offens e. 2. Appellant

claims that

the tri al court erred in appl ying Tenn. Code Ann. §40- 35-114(4) and (7) as bothenhancement factors a re elements of the offens e of sexual battery . The state concedes that these factors were misapp lied, and we agree. Howe ver, beca use the tr ial cou rt sentenced Appellant to the minimum sentence wit hin the range, he is not ent itled t o a reducti on in his sentence. 9by 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 illega l marijuana use in the pre-sentence r eport. 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. T enn. Code Ann. § 40-35-114(15)

.

-19- 3. Appellant

furth er a rgues that the trial cou rt erred in denying a lternative sentencing. An especiall y mitigated orstandard off ender convicted of a Class C, D or E felony i s presumed to be a favorabl e candidate for alternative sentencing in the absence of evidence to the cont rary. Tenn. Code Ann. § 4 0-35-10 2(6). A trialcourt m ust presu me tha t a defend ant sen tenced to eight (8)years or l ess and who is not an offe nder for w hom in carcera tion is a priority is s ubject to alternative sentencing. State v. Byrd , 861 S.W.2d 377, 379-380 (Tenn. Crim. App . 1993). It is further

presu med that a s enten ce oth er than incarc eration would result in successful rehabilitation unless rebutted by sufficient evidence in the record. Id. at 380. However , althou gh a d efend ant m ay be p resum ed to b e a favo rable candid ate for alt ernative sentencing, the d efendant has t he burden of establishi ng suitability for total prob ation. State v. Boggs , 932 S.W.2d 467, 477 (Ten n. C ri m. App. 1996); see Tenn. Code Ann. § 40-35-303(b) . Even though probation must be automat ica ll y co nsi dered, “t he defen dant isnot automa tical ly entitled to probation as a m atter of law.” Tenn. Code Ann. § 40-35-303( b) Sentencing Commission Com ments ; State v. Hartley , 81 8 S. W.2d 3 70, 373 (Ten n. C ri m. App. 1991 ). In determining whether to gr ant or deny pr

obation, a trialcourt shoul d consider

the circ umstances of the of fense, the d ef endant’s cr iminal record, the defen dant’s social history and present condi tion, t he need for deterrence, and the best interest of th e defen dant an d the pu blic. State v. Grear , 568 S. W.2d 285 , 286 (Tenn . 1978); State v. Boyd , 925 S.W.2d 237, 244 (Ten n. Crim. App . 1995); State v. Black , 924 S.W.2d 912, 917 (Tenn. Cr im. App. 1995). The d efend ant’s-20-

lackof cred ibility is also an ap propr iate co nside ratio n and reflec ts on a d efend ant’s potential fo r rehabilitation

. State v. Zeolia , 928 S.W.2d 457, 463 (Tenn. C rim. App. 199 6). As Ap pel lant was conv icted of a Class E felony , he is ent itled t o the presumption in favor

of alternative sentenc ing. Tenn. C ode Ann . § 40-35-102 (6). Howeve r, Appellant i s not eli gible fo r community corr ections becau se he wa s convictedof com mitting se xual batte ry, a crime against the person. Tenn. Code Ann. § 40-3 6-106(a)(2). At the t ime of

sent enci ng, Ap pell ant h ad no p rio r cr imin al record. He testif ied at his sentencing hearing t hat if the court place d h im on probati on, he would be will ing to comp ly wit h the terms of his probat ion, inc luding at tending counseling. This Court has previously held that the fact that the convicted crime i s a cri me of violence can be a factor which would weigh a gainst pro bation. State v. Gennoe , 851 S.W .2d 833 , 837 (T enn. C rim. App .), perm. to app.denied (Tenn. 1992). Furthermore, a breach of trust can also be a basi s for denyi ng probation. Id. This Court concludes that the t rial cour t did not err in deny ing probati on. The c ir cum stanc es of th e offen se we re suc h that A ppella nt, as th e victim ’s supervisor, pursued the vi ctim for s exual rel ations

. The victi m had been instructed to obey his sup ervisors and ultim ately acqu iesced in the sexu al activity
as a resu lt. The proof d emo nstrate d that th e victim was s evere ly men tally handicapped, as noted by the trial co urt in sente ncing. Notw ithstandi ng the presumption in favor of al ternative sentenci ng, the circumstances of the off ense along with the p atent b reach of trust support the tri al court’ s conclusion that probation was n ot warranted in thi s case.-21- This issu e is withou t merit.

C. Consecuti ve Sentenci ng Finall y, Appe llant co ntend s that th e trial co urt erre d in im posin g consecu tive sentences for his convict ions. However, because we must reverse Appe llant’s conviction for sexua l battery in Count O ne due to the state’s failure to establish venue, th is issue is m oot.

CONCLUSI ON

We find t hat the evidence i s insuff icient to establ ish that

the offens e of sexual battery in C ount O ne occ urred in W ayne C ounty; the refo r e, App ellant’s convicti on in Count One is r eversed. However , because we con clude that no otherreversi ble error

exists i n the record, we affirm the trialcourt’s judgment with respect to Count Two.

____________________________________ JERRY L . SMI TH, J UDGE

CONCUR:

___________________________________ DAVID H. WELLES , JUD GE

___________________________________ THOMAS T. WOODALL, J UDGE