# FILED
March 18, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE DECEMBER 1997 SESSION

STATE OF TENNESSEE, ) ) APPELLEE, )

) No. 01-C-01-9702-CR-0 0041 ) ) Putnam County v. ) ) Leon Burns, Jr. , Judge ) ) (Sexual Ba ttery) CLARENCE JACKSON, ) ) APPELLANT. )

FOR THE APPE LLANT: FOR THE APPELLEE: H. Marshall Judd John Knox Walkup Assistant Public Defender Attorney General & Repor ter 215 Reagan Street 425 Fifth Avenue, North Cookeville, TN 38501 Nashville, TN 37243-0493 OF COUNSEL: Georgia Blythe Felner Counsel for the State David N. Brady 425 Fifth Avenue, North District Public Defender Nashville, TN 37243-0493 215 Reagan Street Cookeville, TN 38501 William E. Gibson District Attorney General 145 South Jefferson Avenue Cookeville, TN 38501-3424 Lillie Ann Sells Assistant District A

ttorney General 145 South Jefferson Avenue Cookeville, TN 38501-3424

OPINION FILED:_______________________________

__ AFFIRMED AS MODIFIED Joe B. Jones, Pre siding Judge2 

## O P I N I O N

The appella nt, Cla rence J ackson ( defendant

), was convic ted of two ( 2) counts of sexual battery, a Class E f elony, by a jury of his p eers. The trial co urt, finding th e defendant to be a standard offender , im posed a Range I sentence consi sting of confinement for two

(2) years in the Depar tment of C

orrect ion in each count. The sentences were ordered to be serv ed consecutively for an effective sentence of four (4) years. The defendant presents nine issues fo r review. However, this court finds there are onlythree issues pres ented for review. The defendant contends (a) the evidence is insufficient, as a matter of law, to s upport his convictions , (b) the trial court erred by admitting into evidence his statement to a law enfo rcement officer because it contained inadmissible hearsay, and (c) the sentences imposed by the t rial court are exces sive. After
a thorough review of the record, the briefs submitted by the parties, and the law gov erning the issues presented for rev iew, it is the opini on of this court that the two convictions fo r sexual battery should be affirmed. How ever, the sentences are modified. The sentences are to be s erved con currentl y rather th an conse cutively. The defendant married the victim’ s great-au nt, Mildred C. Gentry Jackson. Mrs. Jackson was the sister of the v ictim’s grandfather, Benton Gentry. The Jacksons and the Gentrys were very close. The Jack sons, w ho lived in Dayton, Oh io, visited the Gent rys frequen tly. They always stay ed with theGentrys whe n visiting T ennesse e. The two couples took vacations together. They attended social functions, family reunions, school reunions, and parties for childhood schoolmates a nd friends together. The victim, who wa

s twenty-nine (29)

years of age, has suffered from Down’s Syndrome since she was a child. A doctor testifie d she has the mind of a child between the ages of six and eight . She has been unable to work

. The victim and her family lived next door to the victim’s g randparents, the Gentrys.The victim visited the Gentrys almost daily by walking through a yard between the residences. On May 7, 19 90, t he victim’s great-grandmother, Mrs. Max well, died in Day

ton, Ohio. A funeral serv ice was held in Dayton. Mrs. Ma xwell’s remains were returned to Tennessee for burial. On May 13,1990, the family came to the Gentrys’ residence. Those3

present gathered in the kitchen. The family members visited with each other. However, the victim went into the living room and beg an watching televi sion. She sat on a love seat which could not be seen from the kitchen. Later, the defendant w ent into the living r

oom and sat next

to the vic

tim. The victim testified the defendant placed his hand inside of her pants and rubbed the vaginal area

of her body. He then digitally penetrated her. He subsequently performed cunnilingus on her. The defendant referred to the victim’s vaginal area as her “Tootsie.” He unzipped his pants

and placed th e victim’s hand on his reproductive organ. He also forced h er to kiss him severa l times. During the c ourse of these events, he as ked th e victim, “How y

ou feel woman.” He also ask ed her if she felt “like a w oman.” The victim’s younger

brother observed a porti on of what occurred on May 13, 1990. He saw the defendant jerk the v ictim’s head between four and s ix times and force the victim to kiss him. He also saw the defendant place his hand inside the victim’s pants. In September of 1991, the Gentrys w ent t o Dayto n, Ohio, to meet the Jacksons. They then took a thirty-day va cation. The two couples subs equently returned

to Dayton, and the Gentrys drove home. In a few days, the Jacksons came to Tennessee. As usual, they stayed with the

Gentrys. The

purpose of this visit w

as a party for several

women who knew Mrs. Gentry

and Mrs. Jackson in the formative years of their l ives. On Sunday, October 6, 1991, the v ictim, her parents, Benton Gent ry, her grand father, and the defendant, went to a football game . The victim’s brother was a member of a team playing that

day. The victim’s par

ents and Mr. Gentry sat higher in the stands than the victim, w ho sat with the students . The defendant s at next to the victim. The victim removed her j acket and draped it over the low er portion of her

body. The victim t estified the defendant placed his hand under her jacket, went inside her pants , an d touched her

vaginal area. The victim’s mother saw the victim remove her jacket and place it over the lower porti on of he r body. A Putnam County deputy sheriff inter viewed the defendant in Dayton, Ohio, on May 7, 1992. The defendant was apprised of the Miranda warnings. The d eputy sherif f had
a letter which contained the dates and events when th e de fendan t was allege d to have sexuall yabus ed the victim. He did not read the entire letter. H e simply advised the4

defendant of the allegations. The defendant f reelyadmitted having sexual contact with the victim. The cont act inclu ded digit al penet ration, k issing the victim’s br easts on two occasions, and touching the vaginal area of the victim’s body. However, the defendant told the deputy it was

the victim who initiated each sexual encounter

. The defendant’s son was present during the entire in terview.

I.

The defendant contends the evidence c onta ined in the record is insufficient, as a matter of law, to support a finding by a rational trier of fact that he was guilty

of two counts of sexual ba ttery beyond a reasonabl e doubt. He argues the doctor who examined t h e victim “found no medical evid ence of t he victim’s accusatio ns,” the victim wa s not competentto testify, and the victim during cr oss-examination accused another person, a schoolmate, of sexually abusing her. The State of Te n nessee (state) contends the evidence is clearly sufficient to support the defendant’s con victions. Unfortuna tely, this issue has been wai ved. The defendant has failed to cite an y authority to support his argument. Tenn. R. App. P. 27(a)(7); Tenn. Ct. Crim. App. 10(b). Moreover, the argumentsmade in support of this issue ar e the conclusory statements s et forth in the previous parag raph. Nevertheless, this court has read the rec ord to de termine whether the evidence supports the two convictions and whether the

victim was co mpeten t to testi fy. The record reveals defense counsel questioned the victim before she was permitted to testify , and the defendant did not interpose an objection to the competency of the victim This issue has b een waived. Tenn. R. Evid. 103(a)(1); Tenn. R. App. P. 36(a). However, the record clearlyestablishes t he v ictim was competent to testify. Furthermore, this court is of the opinion the evidence contained in the r ecord i s sufficient to support the defenda nt’s convictions. Tenn. R. App. P. 13(e); Jackson v. Virginia , 443 U.S. 307, 99S.Ct. 278, 61 L.Ed.2d 560 (1979). This issue is without merit.5 II.

The defendant contends the trial court committed er ror of prejudicial dimensi ons by permitting the entire statement he gav e to a Putnam County Deputy S heriff to be admitted into evide nce. He ar gues the s tatemen t contain s hearsay. Unfortu nately, this issue has been wai ved as well. The

defendant has failed to cite authority to support his argument. Tenn. R. App. P. 27(a)(7); Tenn. Ct. Crim. App. 10(b). Nevertheless, this court has considered t hi s issue on the merits. Gi ven the standard of
a ppellate review in suppres sion matters, the evidence contained in the record does no t preponderate against the tri al court’s findings of fact. This issue is without merit.

III.

The defendant challenges the length and the manner of servi ng the sentences imposed by the trial cour t. He argues the trial court erroneously appl ied three enhancementfactors and failed to consider two mitigating factor

s. He also argues the tr ial court erroneously ordered his sentences to be served consecutively; and the trial court also erred by refusing t o impose some form of alte rnative sentenc ing.

A.

When an accused challenges the length and manner of servingsentences, it is the duty of this court to conduct a de novo review on the recor d with a presumption that “ the determinationsmade by the court from which the appeal is taken are corr ect.” Tenn. Code Ann. § 40-35-401(d). This presumption is “conditioned upon the affirmative showing in the record that the trial court cons idered th e sentencing principles and all relevant facts and
c ircumstances .” State v. Ashby , 823 S.W.2d 166, 16 9 (Tenn. 1991). Furthermore, this presumption does not apply to th e lega l conclusions reached by the trial court in sentencing the accu sed or to t he determinations made by the trial court which are6

predicated upon uncontrovertedfacts. State v. Smith , 891 S.W.2d 922, 929 ( Tenn. Crim. App.), per . app . denied , (Tenn. 1994). However, this court is required to give great w

eight to the trial court’s deter mination of controverted facts as the trial court’s deter

mination is based upon the witnesses’ demeanor and appearance when testifyi ng. State v. Jernigan , 929 S.W.2d 391, 395 (Tenn. Crim. App.), per . app . denied (Tenn. 1996). In conducting a de novo review of a sentence, th is court must consider ( a) any evidence received at the trial and/or sentencing hearing , (b) the presentence report, (c) the principles

of sentencing, (d) the arg uments of counsel relative t o sentencing alternatives, (e) the nature and characteristics of the offense, ( f) any mitigating

or enhancing fa ctors, (g) any statements made by

the accu sed in hi s own be half, and (h) the accused’s potenti al or lackof potential for rehabilitatio n or treatment. Tenn. Code Ann. §§ 40-35-103 and -210; State v. Scott , 735 S.W.2d 825, 829 (Tenn. Crim. App.), per . app . denied (Tenn. 1987). When the accused is the appellant, the accused has the burden of establi shing that the sentences imposed by the tr ial court are erroneous. Se ntencing Commission Comments to Tenn. Code Ann. § 49-35-401; Ashby , 823 S.W.2d 169; State v. Butler , 900 S.W.2d 305, 311 (T enn. Crim. App. 1994).

B.

The trial court found the evidence supports four enhancement factors. The factors incl uded (a) the defendant has a history of criminal behavior and convictions f or th e commission of criminal offenses, Tenn. Code Ann. § 40-35-114(1); (b) the v ictim was particularlyvulnerable due to a mental defic iency, Tenn. C ode Ann. § 40-35-114(4); (c) the defendant committed these offenses to gratify his desire for sexual p leasure, Tenn. Code Ann. § 40-35-114(7); and (d) the defendantabused a private trust, Tenn. Code Ann. § 40-35-114(15). The defendant contends thetrial court erred by using enhancement factors (4) , (7) and (15) to enhance his sentence within the appropriate r ange.7 (1)

The defendant argues enhancement factor (4) , the victim was particularly vulnerable, should not have been used to enhance his sentence. He argues the evidence does not support this factor. In this case, the victim was twenty-nine years of age. She had suffered from Down’s Syndrome since she was a child. A doctor testifie d the victim had a mentalage of six to eightyears. Thevictim’s stepfather testified the victim’s mental age was betweenfive and six years. The victim’ s brother saw the defendant moles t the victim on one occasi on. He stated the victim looked “scared.” The victim alluded to the defendant’s “very, very strong” hands. The trial court found the vi ctim “was not able to r espond in th e same manner or way that maybe someone else might who did not have this mental condition.” This factor relates to the physical and mental phy sical limitations of the

victim rather than mere age. State v. Adams , 864 S.W.2d 31, 34-35 (Tenn. 1993). A victim is said to be “particularly vulnerable” when the victim is “incapable of resisting, summoning help, or testifying against the perpetrator.” Id . at 35. The State of Tennessee has the burden of proving the victim’s physical or mental limitations rendered him or her particularly vulnerable. Id .; see State v. Poole , 945 S.W.2d 93, 98 (Tenn. 1997); State v. Kissinger , 922 S.W.2d 4 82, 487 (T enn. 1996). The question of whether a victim is particularly vulnerable entails a factual issue which the trial court must decide on a case-by-case basis. Poole , 945 S.W.2d at 97; State v. Boggs , 932 S.W.2d 467, 475 (Tenn. Crim.App.), per . app . denied (Tenn. 1996). This court is of the opinion the trial court properly used this enhancement factor to increase the defendant’s sentence withi n the appropriate range. See State v. Clabo , 905 S.W.2d 197, 206 (Tenn. Crim. App.), per . app . denied , (Tenn. 1 995); State v. Robert Beachboard , Sevier County No. 03-C-01-9302-CR-00041, 1993 WL 350169 (Tenn. Cri m. App., Knoxville, September 15, 1993). While the victim attempted to re sist, she was neither mentally or physic

ally capable of resisti ng the defendant. She refer red to the defendant’s strong hands. Although there were severalpeople in another room, she did
n ot summon assistance. On one occasi on, it was the victim’s young brother w ho8

summoned assistance. The defenda nt, apparently knowing the brother would seek assistance , ceased mole sting the v

ictim. This issue is without merit.
(2)

The defendant

challe nges th e use of en hancement factor (7), th e commis

sion of a crimefor the gratification, pleas ure or excitement of the defendant. Tenn. Code Ann. § 40- 35-114(7). He argu es t he record does not support thi s factor; and the trial court did not make an adequate fin ding of fact to support the use of this factor. Thi s court is of the opinion the record supports this factor, and, thus, the trial c ourt properly used this

factor to enhance the defendant’s sentence within the appropriate rang e. The victim testified the defendant as ked her “[t]ell me how y ou feel, woman” and do you “[f]eel like a woman” while he was in the act of sexual ly abusing the vi ctim. The defendant called the victim’s vaginal area her “Toots ie” an d tol d her to show him her “Tootsie.”He admitted kissi ng t he victim’s breasts on two occasions and kissing her on the lips several times. On one occasion the defendant unzipped his pants and placed the victim’s hand on his reproductive organ. The defendant fu rther admit te d he digitally penetrated th e victim. This issue is without merit.
(3)
Finally, the defendantchallenges the use of enhancement fact or (15), he violated
a priv ate trust. Tenn. Code Ann. § 40-35-114(15). The d efendant argues the trial co ur t did not make specific findings of fact to jus tify the use

of this enhanc

eme nt facto r. This court is of the opinion t he record supports the use of this factor. Thus, the trial court properly used this factor to enhance the defendant’s sentence. The defen dant wa

s marri ed to the

victi m’s gre

at-aunt . The defe ndant and th e great-aunt

visited the victim’s grandparents, the Gentrys, who lived next door to the victim9

and her family. When the Jacksons visited Tennessee, they stayed with the Gentrys. The victim visit ed her gran dparent s almost d aily. The sexual abuse occurred in the liv ing room of theGentrys’ home, a place which
was a safe haven for the victim. The defendant knew thevictim was suffering from Down’s Sy ndrom e. He saw her frequently. The victim’s family and the Gentrys trusted the defendant while he was in the presence of the victim. The defendant violat ed this private trust. C.

The defendant contends t he t rial court should have applied two mitigating factors when determining the length of his sentence s. He argue s the tria l court sho uld have applied mitigatingfactor (3), there were substantial grounds w

hich tended to either excuse
or justify his conduct ev

en though these grounds failed to establish a defense. Tenn. Code Ann. § 40-35-113(3), and factor (8), he suffered f rom a mental condition which significantly reduced his culpability, Tenn. Code Ann. § 40-35-113(8), w hen determining the length o f his sentences. The defendant states in hi s brief the same facts support the use of b oth factors. The facts submitted by the defendant are c ontained in a single sentence: “Clearly all the medical evidence from Drs. Knoll and Kumar was that the defendant suffered from [ a] bipolar disorder and paranoid perso na lity traits.” H e argues the trial cour t “made no findings regarding defendant ’s medical condition as it relates to mitigation. ” Dr. Herman C. Knoll, an internal medicine practitioner, had known and treated the defendant for twenty years. He also treated Mrs. Jackson. In December of 1991, Dr. Knoll
saw the defendant at the request of Mrs. Jackson. Although Dr. Knoll w as not trained or educated in the fie ld of psyc hiatry, he opined the defendant had a bipolar disorder or manic depression. He further opined the defendant was criminall y insane in December of 1991. Dr. Arvind Kumar, a ps ychiatrist certified

by the State of Tennessee in the field of forensic psychiatry, ex

amined the defendant on July 19, 1993 pur suant to an order ofthe trial court. Dr. Kumar found the defendant w as fit to stand trial; he w as not suffering from
a mental disease; and he knew right f rom wrong at the time he committed the offense s.10

He based his opinion u pon his exa m ination of the defendant and a review of the defendant’s medical records from hi s December, 1991 hospitaliz ation. Dr. Kumar’s examination revealed th e existence of a bipolar disorder which was in
re mission, paranoid personality tr aits, and a multitude of physic al problems. He s

tate d
some people with a bipolar di sorder are very s uccessful in life. He was of the opinion the defendant was not paranoid and had had no breaks with reali

ty. Nor was

the defendant suffering from a psychosis. The defendant was taking 300 milligrams of Lithium Car bonate three times a day for his depr ession. The victim’s mother testi fied at the sentencing hearing . She related her observations concerning the defendant’s mental condition. She stated:
He [the defendan t ] was always s mart enough to do what he done with us in the house or on the porch o r right under our noses. I don’t think his men tal ability should hav e any reflection o n this. H e’s always been fine to us. We knew he was manic depressive, but I d on’t see how that has anythi ng to do with what he’s done to [my daughter].
T he victim’s stepfather testified during the sentencing hearing regarding

the defendant’s mental condition. He s tated: Well, we’d [the witness and the defendant] sit and talk. He’d talkabout things he’d do ne in the past. Just, you know, like you would go visit

your father

or someone like that. I enjoyed talking to him. He was just, you know, he’d cut up withyou, cut up with the kids. * * * * I see nothin g wr ong with him mentally. I mean his memory was better than mine. * * * * And he could recollect these things and tell m e. He [knew] names of people. Why, I couldn’t even remember them like he could. So, mentally, he w as as sound as he could be.
There was evidence establi shing the defendant did most of the dri ving locally, on trips

to Tennessee, and on vacation. Hi s wife rarely drov e a motor vehicle. Contraryto the defendant’s contention, the trial court made findings regarding the mental condition of the defendant. The court s aid:11 I find it hard to understand and inconceivable why a greatuncle of a chil d who has Down’s sy ndrome would under any s tate, me ntal condition that he might have been in short of insanity take advantage of the child in the manner in which he did. I guess . . . I’ve sor

t of indicated, I don’t see much justification forany of Mr. Jackson’s c onduct. I don’t think ther e ’s any justification based upon the doctors’ testimony. The doctor testified at trial. I heard that tes timony

. He did testify as to problems

and mood swings, but the condu ct testified toby the victim as to the incidences that happene d certainly do not indicate any lack of understanding or an inability

to understand what he was doing or

form the requisite mental sta te . . . . * * * * I don’t think that there are any signif ic ant mitigating factors. His health condition and mental condition I suppose are in the record, part of the record, but I don ’t believe that it in any way significantlyreduced his culpability of the offense. I t hink h e knew what he was doing and took pleasure in what he w as doing. And I don’t think the proof th at w as presented would justify any lessening of the culpability because of his men tal condition.
The tri al court predicated its ruling upon the testimony of Dr. Knol l, Dr. Kumar, and the victim’s parents. The evidence concerning the defendant’s mental capacity conflicts. The trial court,
as the trier of fact, saw the w itnesses and observed thei r demeanor. The court opted to accredit the testimony

of Dr. Kumar and thevictim’s parents. I n summary, the defendant has failed to overcome the presumpti on of correctness afforded the trial court’s factual findings. Tenn. Code Ann. § 40-35-401(d). This issue is without merit.

D.

Th e trial cou rt ordere d the def endant t o serve the two senten ces conse cutively. This ruling of the court was based upon the provisions contained in Tenn. Code Ann. § 40- 35-115( b)(5).This st

atute pr ovides that con secutiv

e senten cing ma

y be req uired if: (5) The defendant is c onvict ed of two (2) or more statutory offenses involving sexual abuse of aminor with consideration of the aggravating circumstances arising from the relationship12 between the defendant and the victim or victi ms, the time span of defendant’s undetected se xual activity, the natur e and scope of the se xual actsand the extent of the residual, physical and mental damage to the victim or victims.
The defendant contends the trial court erred in ordering consecutive se nt encing pursuantto this code section. He argues the victi m was not a minor. It is his theory the term “minor” relates to the ac tual age of the victim --

under the age of eighteen ye ars. The state contends the statute applies in this case. The s tate argues the term “minor ” includes
an adult who is mentally equivalent

to a person under the age of eighteen years. Thus, this court must determine whether th e word “mino r” as used in Tenn. Code Ann. § 40-35- 115(b)(5) refers to the

chronolog ical age an d/or the menta l age of the v ictim. In 1989 the Tenne ssee Ge neral Assembly revi sed the penal code. The revis ion included a section which contains the definitions of terms used in the penal code. Tenn. Code Ann. § 39-11-106. This code section defines “minor” as “any person under eighteen (18) years of age .” Tenn. C ode Ann. § 39-11-106(a)(23)( emphasis added). In other words, this definition encompasses the c hronological age of a person. It does not encompass an adult who has the mental capacity of a chil d under eighteen years of age. Dictionaries

define the word “minor” in terms of chronological age. Webster’s Ninth Collegiate

Dictionary defines the term “minor” as “[a] person who has not attained majority. ” Webster’s Ninth New Collegi ate Dictionary 757 (1984 ). Black’s Law Dicti onary defines the term “minor” as “[a ]n infant or pe rson who is under th e age of legal competence .

. . . A term derived f rom th e civil law, which described a person under a certain age as less than so many years.” Black’s Law Dictionary 689 (6th ed.)(emphasis added). This court is of the opinion the term “minor,” as used in Tenn. Code Ann. § 40-35- 115(b)(5) , means a person under the chronolo gical age of eighteen y ears of age a s defined by the statute. The statute does not apply when the v

ictim is over the ag e of eighteen years even though the victim’s mental capacity is impaired and the victim has the mental capacity equiv

alent to a small child. The sentence s in this case must be modified to show the sentences are to be served concurrently

rather than consecutivel y as the trial court ordered.13 E.

The defendant vigorously a rgues the trial court abused its discreti on byfailing to impose some form of alternative sent encing. He argues the trial court did not consi der probation or any other form of alternati ve sentencing notwi

thstanding the fact he was presumed to be a favorable candidat e for such a sentence. The statute addressing the purposes of sentencing encomp ass es a provision regardingalternative sent encing. Tenn. Code Ann. § 40-35-102(6). Subsection (6) states:

A defendant who does not fall within the parameter s o f subdivision (5) and is an especiall y mit igated or standard offenderconvicted of a Class C,D, or E felony is pres umed to be a favorable candidate for alternative sentencing options in the abse nce of evi dence to the cont rary. Thus, the trial court’s determination of the sentence to be imp osed must necessarily
commence with the defend ant ’s entitlement to the presumption. As the Supreme Court said: “If [the] determination is favorable to the defendant, the trial court must presume that he is subject to alternative sentencing. If the court is presented with ev idence sufficient

to
overcome

the presumption, then it may sent ence the defendant to confinement according to the statutory provision[s].” Ashby , 823 S.W.2d at 169 (em phasis added). The presumption may be rebutted by the state. As this court s aid in Jernigan :
The pr esu mption can be successfully r ebutted by facts contained in the p resentence report, eviden ce presented by the state, the testimony of the accused or a defense witness, or any othe r source provided it is admissible evidence and made a part of the record.
929 S.W.2d at 395-96. In this case, the defendant was entitled to the presumption that he was a favorable candidate for alternative sentencin g. He was convicted o f a Class E felony and was sentenced as a standard offender. The length of the sentence was two years. Therefore, the question presented is w hether the state successfully rebutted the presumption. The defendant has a history of prior conv ictions and criminalbehavior. He has been convicted of a weapons offense, assault, endanger ment, committing criminal damage and14

menacing. While the impact statement submitted by the victim ’s mothe r contain s hearsay, she relates that the defendant had sex ually abusedan adopted daughter, an 86-year-old relative, and others from hi s neighborhood. The criminal conduct of the defendant has had adevastating effect upon the victim and her family. The victi m’s parents testified at the sent encing hearing. They detailed how the family members had been affected, especially the v ictim. Besides the defendant’s pr ior criminal convictions and b ehavior, there were three additional enhancement factors supported by the record. The record does not support any mitigating circumstances. This court fi n ds the state successfully rebutted the presumption in favor of alternat ive sentencing. Therefore, the trial c ourt prop erly require d the def endant t o serve the two sentences in confinement. In this case, confinem ent is necessary to av oid depreciating the ser iousness of the se offenses as well as to deter others from committing the sam e or similar offenses. Tenn. Code Ann. § 40-35-103(1)(B). Sexual offenses are serious when, as here, the defendant takes advantage of a victim who is mentally retarded due to Down’s Syndrome. Furthermore, the dockets of this court and the decisio ns of the appellatecourts are replete with sex-related offenses, partic ularly sexual

battery. I n additio n, measu res less re strictive than confinement have been applied to the defendant unsuccessfully i n the past. Tenn. Code Ann. § 40-35-103(1)(C). This issue is without merit.

_______ ________________

________________

_ JOE B. JONES, PRESID ING JUDGE CONCUR:

___________________________________ PAUL G. SUMMERS, JUD GE

___________________________________ WILLIAM M. BARKER, JUDGE