        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT NASHVILLE             FILED
                        JANUARY SESSION, 1999          April 29, 1999

                                                  Cecil W. Crowson
STATE OF TENNESSEE,         )                   Appellate Court Clerk
                                 C.C.A. NO. 01C01-9801-CC-00031
                            )
      Appellee,             )
                            )
                            )    HUMPHREYS CO UNTY
VS.                         )
                            )    HON. ROBERT E. BURCH
DAVID J. FORRESTER,         )    JUDGE
                            )
      Appe llant.           )    (Direct Ap peal - Agg ravated Sexu al
                            )    Battery)




FOR THE APPELLANT:               FOR THE APPELLEE:

TERRY J. LEONARD                 JOHN KNOX WALKUP
9 North Co urt Square            Attorney General and Reporter
P. O. Box 957
Camden, TN 38320                 KIM R. HELPER
                                 Assistant Attorney General
                                 425 Fifth Avenu e North
                                 Nashville, TN 37243-0493

                                 DAN ALSOBROOKS
                                 District Attorney General

                                 GEORGE SEXTON
                                 Assistant District Attorney
                                 Room 206
                                 Wa verly, TN 37185



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                    OPINION


       In December of 1996, Appellant David J. Forrester was indicted by the

Hump hreys County Grand Jury for attempted rape of a child and for aggravated

sexual battery. On July 25, 1997, Appellant filed a motion to suppress a pretrial

statement that he gave to state investigators. The trial court denied the motion

after a hearing on August 25, 1997.              On August 28, 1997, Appellant was

convicted of aggravated sexual battery. After a sentencing hearing on December

9, 1997, the trial court sentenced Appellant to a term of ten years in the

Tennessee Department of Correction. Appellant challe nges both h is conviction

and his sentence, raising the following issues:

       1) whether the trial court erre d when it admitted his pretrial sta temen t into
       evidence;
       2) whether the evidence was sufficient to support his conviction;
       3) whether the trial court should have instructed the jury on lesser included
       offenses, including child abuse;
       4) whether the trial court’s response to a question from the jury about the
       severity of the charged offenses prejudiced Appellant; and
       5) whether the trial court imposed an excessive sentence.

After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.



                                      I. FACTS




       Sharon Stump testified that on September 14, 1996, her car tire went flat

in front of the home of Appellant and his wife, Julie Forrester. As Stump

approached the back door of Appellant’s home in order to use the telephone, she

looked through some glass patio doors and saw Appellant rubbing his penis on

the buttocks of Appe llant’s n aked four-ye ar-old daug hter. S tump subs eque ntly




                                           -2-
reported the incident to the Tennessee Department of Human Services and to

Julie Forrester.



       On November 20, 1996, Appellant voluntarily took a polygraph test that had

been arranged by his attorney. After the polygraph test had been administered,

Appellant participate d in a post-polygraph interview conducted by Agent Mike

Smith of the Tennessee Bureau of Investigation, Investigator Ted Tarpley of the

district attorney general’s office, and Norma Williams of the Tennessee

Department of Children’s Services.        During this interview, Appellant gave a

signed statement in which he admitted that after he took his daughter out of the

bathtub on September 14, 1996, she touched his penis and he had an erection.

Appellant then admitted that when his naked daughter lay down on the floor, he

took his penis out an d rubbed it on h er buttocks for ap proximately two to five

minute s in order to obtain se xual gratifica tion.



       At trial, Appellant testified that his pretrial statement was untrue and that

the only reason he gave the statement was because his interviewers told him that

if he told the m wha t they wanted to hear, he would get custody of his children

back a nd he w ould rece ive coun seling inste ad of ha ving to ap pear in co urt.



         II. ADMISSION OF APPELLANT’S PRETRIAL STATEMENT




       Appellant contends tha t the trial court erred when it admitted his pretrial

statement into eviden ce. Specifically, Appellant contends that the statement was

inadm issible because he was not prop erly Mirandized, the statement was given




                                          -3-
involuntarily, and th e state men t was o btaine d in viola tion of A ppella nt’s right to

coun sel.



                                      A. Miranda




       Appellant contends that his pretrial statement was inadmissible because

the police did not properly administer the Miranda warnings. Appellant concedes

that he was given Miranda warnings before he took the polygraph test, ho wever,

he cla ims th at the p olice sh ould have given the Miranda warnings ag ain before

he participated in the post-polygraph interview.



       In Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 1630, 16 L.Ed.2d

694 (1966), th e United States S uprem e Cou rt ruled that th e Fifth and Fourtee nth

Amendmen ts’ prohibition against compelled self-incrimination requires police

officers, before initiating questioning, to advise the putative defendant of his right

to remain silent and his right to co unsel. S pecifically, Miranda requires police to

inform the person being questioned that (a) he has the right to re main silent; (b)

any statement made may be used as evidence against him; (c) he has the right

to the presence of an a ttorney ; and (d ) if he ca n not a fford an attorne y, one w ill

be appointed for him prior to questioning, if he so desires. Id., 384 U.S. at 444,

86 S.Ct. at 1612.



       Howeve r, police officers are only required to give Miranda warnings prior

to “custodial interrogation” which has been defined as a “formal arrest or restraint

on freedom of movement of the degree associated with a form al arrest.”

Stansbury v. Califo rnia, 511 U.S. 318, 322–23, 114 S.Ct. 1526, 1528–29, 128

                                           -4-
L.Ed.2d 293 (1994); State v. Bush, 942 S.W.2d 489, 499 (Tenn. 1997). The

United States Supreme Cour t has h eld that it is appropriate to app ly an objective

test to determine wheth er a pe rson is in custody and therefore entitled to rece ive

Miranda warnings. Courts must consider the totality of the circumstances of the

interrogation and inquire “how a reasonable man in the su spec t’s pos ition wo uld

have understood his situation.” Berkem er v. McC arty, 468 U.S. 420, 422, 104

S.Ct. 3138, 3151, 82 L.Ed.2d 317 (1984); see also Stansbury , 511 U.S. at

323–24, 114 S.Ct. at 1529.          In State v. Anderson, 937 S.W.2d 851, 855

(Tenn.1996), the Tenn essee Su preme C ourt expressly ad opted the ob jective

analys is employed by the United States Supreme Court and adopted several

nonexclusive factors to aid in the objective asse ssm ent of w hethe r a reas onab le

person would consider himself or herself deprived of freedom of movement to a

degree associated with a formal a rrest. Relevant factors include (1) the time and

location of the interrogation; (2) the duration and character of the questioning;

(3) the officer’s tone of voice a nd genera l demean or;             (4) the method of

transportation to the place of qu estioning; (5) the nu mber of po lice officers

presen t; (6) limitations on movement or other forms of restraint imposed during

the interrog ation; (7 ) interactions between the officer and the person being

questioned, including the words spoken by the officer and the verbal or nonverbal

responses of the pers on bein g ques tioned; (8) th e extent to which the person

being questioned is confronted with the officer’s suspicions of guilt or evidence

of guilt; and finally (9) the extent to which the perso n bein g que stione d is aware

that he or she is free to refrain from answering questions or to end the interview

at will. Id. The determination of whether an individual is in custody is fact

specific, and th e trial co urt sho uld assess the applicability of the relevant factors

in making its findings. Id. The tr ial cou rt’s dec ision w ill not be overtu rned b y this

                                            -5-
Court unless it appears there has been an abuse of the trial court’s discretion and

a violation of the appellan t’s rights. State v. S mith, 868 S.W.2d 561, 570 (Tenn.

1993).



         Considering the totality of the circumstances, we conclude that the trial

court did not ab use its discretion in determining that Appellant was not in custody

when he gave his signed statement. There is no real dispute in this case that

Appellant was the one who first suggested that he take a polygraph test and that

he voluntarily took the test after it was a rranged by his attorney. Further, the

record indicates that it was Appellant’s parents, and not the police, who

transported Appellant to the assistant district attorney general’s office where he

took the polygraph test. Agent Smith testified at the suppression hearing that

before he adm inistered th e polygra ph test, he advised Appellant of his Miranda

rights and told App ellant that h e was fre e to leave at any time. Ind eed, the record

contains two forms signed by Appellant in which he acknowledged that he had

been advised of his Miranda rights and had been advise d that he was free to

leave whenever he desired. Agent Smith also testified that Appellant never

asked to leave at any time. The record also indicates that the polygraph test and

the post-po lygraph in terview took place from approximately 1:00 p.m. to 4:30 p.m.

and that during this time, Appellant took at least one break in which he went

outside with his pa rents to sm oke ciga rettes. Ag ent Sm ith also testified that no

one ever threatened Appellant during the polygraph and post-polygraph interview.

Finally, once the interview had been concluded , Appellant was allowed to leave

the cou rthouse with his pa rents.




                                          -6-
       In short, we conclude that the trial court did not abuse its discretion when

it determined that Appellant wa s not “in custody” during the post-polygraph

interview in which he gave his signed statement. Because Appellant was not in

custody, the police were not required to readminister the Miranda warnings

before c onduc ting the po st-polygra ph interview . This issu e has n o merit.



                  B. Voluntariness of Appellant’s Statement




       Appellant contends that his pretrial statement was inadmissible because

it was given involuntarily. Specifically, Appellant claims that the statement was

involuntary because he was suffering from a headache and back pain, he was

threatened by the police, and he was promised that he would not go to jail if he

cooperated.



       Even though a statement was not given as a result of custodial

interrogation, the statement must still be voluntary in order to b e adm issible. See

Arizona v. Fulmin ante, 499 U.S . 279, 286 –88, 111 S.C t. 1246, 1252–53, 113

L.Ed.2d 302 (19 91). In order to be considered voluntary, the statement must not

be extracted by “any sort of threats or violence, nor obtained by any direct or

implied promises, however slight, nor by the exertion o f any imp roper influe nce.”

Bram v. United States, 168 U.S . 532, 542–43, 18 S.Ct. 183, 187, 42 L.Ed. 568

(1897); State v. Kelly, 603 S.W.2d 726, 727 (Tenn. 1980).                However, “[a]

defen dant’s subjective percep tion alone is not sufficien t to justify a conclusion of

involuntariness in the constitutional sen se.” State v. S mith, 933 S.W.2d 450, 455

(Tenn. 1996). Instead, “c oercive p olice activity is a n ecessa ry predica te to finding

that a confess ion is not voluntary.” Id.

                                            -7-
        Wh ether or n ot a state ment was voluntarily given is determined by

examining the totality of the circu mstan ces. Kelly, 603 S.W.2d at 728–29 (Tenn.

1980). “A trial court’s determination that a confession was given k nowin gly and

volunta rily is binding on the ap pellate courts unless the defendant can show that

the evidence preponderates against the trial court’s ruling.” State v. Keen, 926

S.W.2d 727, 741 (Tenn. 1994). In addition, the findings of fact made by the trial

court at a hearing on a motion to suppress will also be upheld unless the

evidence preponderates o therwise . State v. Odom, 928 S.W.2d 18, 23 (Tenn.

1996). Questions about witness credibility and “resolution of conflicts in the

evidence are matters entrus ted to the trial judge.” Id.



      First, Appellant claim s that h is state men t was in volunta ry beca use it was

a result of threats from Smith and Tarpley. Specifically, Appellant testified at the

suppression hearin g that S mith threatened that if Appellant did not confess,

Appellant would receive the maximum jail sentence. Appellant also testified that

Tarpley threatened that if Appellant did not confess, Tarpley would contact

Channel 5 News. Ho wever, Smith testified that no one had threatened Appellant

at any time. At the close of the hearing , the trial court stated that it found that

Appellant had b een u ntruthf ul in his testimony and that Appellant had never been

threatened. The evidence does not preponderate against the trial court’s finding.



      Second, Appe llant cla ims th at his st atem ent wa s involu ntary b ecau se it

was a result of police prom ises of leniency. Specifically, Appellant testified at the

suppression hearing that he was promised that if he confessed, he would rec eive

counseling and would not have to go to jail.          However, Smith denied that

Appellant was promised counseling and testified that instead, Appellant was

                                         -8-
advised that Smith would recommend counseling if Appellan t coope rated. Sm ith

did adm it that he told Appellant that if he did n ot cooperate , Smith wou ld just turn

the matter over to the district attorney and it might be po ssible that thin gs wo uld

go harder on Appellant. The trial court believed Smith’s version of the facts and

found that although counseling was mentioned, it was not conditioned on

cooperation. We conclud e that the e vidence does n ot prepo nderate against the

trial court’s findin gs of fact o n this issue . In addition, w e conc lude that Smith’s

statem ents about couns eling and the poss ibility of turning th e matte r over to the

district attorney did not render Appellant’s statement involuntary. Indeed, the

Tennessee Supreme Court has stated that

       Promises of leniency by state officers do not render subsequent
       confessions involuntary per se: The Fifth Amendment does not condemn
       all promis e-induc ed adm issions a nd con fessions ; it condemns only those
       which are compelled by promises of leniency. The critical q uestio n is
       whether the behavior of the state’s law enforcement officials was such as
       to overbear petition er’s will to res ist and bring a bout c onfes sions not free ly
       self-determined.

Smith, 933 S.W.2d at 455–56 (citations and internal quotations o mitted). In fact,

the supreme court found that statements to the defendant that he might not be

prosec uted if he told the truth and that he definitely would be prosecuted if he

refused to admit guilt were not enough to render the defendant’s confession

involuntary because the promises were equivocal and further, “[a]dvice to an

individual concerning the consequences of a refusal to cooperate is not

objection able.” Id. at 456 . Similarly, we conclude that Smith’s statements that

there was a possibility that Appellant could receive counseling and that the matter

would be turn ed ove r to the d istrict atto rney if Appellant did no t cooperate w ere

not “so coercive a s to overbear [A ppellant’s] will.” See id.




                                           -9-
       Third, Appellant claims that his statement was involuntary because he was

suffering from stress and from a severe headache and back pain that was caused

by Tarpley’s instruction that Appellant was not to take any medication before the

polygraph test. Although Tarpley admitted that he advised Appellant not to take

any medication, there is no evidence that Tarpley did so in order to make

Appellant more susceptible to police coercion. In any case, we conclude that

while Appellant’s physical and mental condition was certainly relevant to the

determination of whether his statement was given volunta rily, the totality of the

circumstances indicates that the sta temen t was volu ntary. Mo st impor tantly, it

is undisputed that Appellant was advised of his Miranda rights before the

polygraph test began and Appellant signed a form in which he acknowledged that

he had be en given these righ ts and tha t he was voluntarily wa iving his rights . In

addition, Appellant also signed a form in which he acknowledged that he had

been advised that he was free to leave whe never he de sired. Further, Appellant

was allowe d to roa m ab out at w ill and ta lk to his parents during the break

between the polygraph test and the post-polygraph interview. U nder the totality

of the circumstances, we conclude that the eviden ce doe s not pre ponde rate

against the trial court’s finding that Appellant’s statement was given voluntarily.

This issu e has n o merit.



                                 C. Right to Counsel




       Appellant contends that his pretrial statement was inadmissible because

it was o btaine d in viola tion of h is right to coun sel.




                                            -10-
        Initially, Appellant claims that his Sixth Amendment right to counsel was

violated because his attorney was not present when he was questioned by the

state investigators. The law is clear that the Sixth Amendment right to counsel

attaches to all critica l stages of a prosecu tion and that “onc e adversary

proceedings have commenced against an individual, he has a right to legal

representation when the governm ent interrogates h im.” Brewer v. Williams, 430

U.S. 387, 401, 97 S.Ct. 1232, 1240, 51 L.Ed.2d 424 (1977). In Tennessee,

“[j]udicial proceedings are considered initiated, and thu s Sixth Am endm ent rights

attach, at the time an arrest warrant issues, a preliminary hearing is held (if no

arrest warrant is issued ), or an indictme nt or presentm ent is returned.” State v.

Jackson, 889 S.W .2d 219, 222 (Tenn. Crim . App. 1993 ). In this case, there is no

indication in the reco rd that an y of these events had occurred before the

polygraph test and post-polygraph interview on November 20, 1996. Because

no judicial proceedings had been initiated against Appellant in this case at the

time he gave his statement, his Sixth Amendment right to counsel had not

attache d and th us, was not violated . See id.1



        Appellant also claims that his Fifth Amendment right to counsel under

Miranda was violated be cause the State investig ators c ontinu ed to q uestio n him

after he had invoked his right to counsel. Specifically, Appellant testified at the

suppression hearing that he asked for his attorney as soon as the post-polygraph

test began. However, Tarpley testified that Appellant never asked for an attorney

until after he had already given the statement. Furth er, Williams also testified

        1
          Appellan t’s argum ent imp lies that the S tate surre ptitiously cond ucted the polygraph test and p ost-
polygraph interview without notifying Appellant’s counsel. However, as previously noted, the record
indicates that Appellant’s attorney helped make the arrangements for the polygraph test. Further, the trial
court specifically found that Appellant’s attorney knew when the polygraph test would take place and
simply chose not to attend. We note that Appellant’s counsel at the time he submitted to the polygraph test
is not the same attorney who represented Appellant in the trial and appeal of this case.

                                                    -11-
that Appellant did not ask for an attorney until after he had already given the

statem ent.      The trial court believed the State’s witnesses and found that

Appellant did no t reque st an a ttorney until after he had given his statement and

that as soon as Appellant did ask for an attorney, the interview was concluded.

The evidence does n ot prepo nderate against th is finding.                          T herefore , we

conclude that Appellant’s Fifth A mendm ent right to couns el under Miranda was

not violated.2 This issu e has n o merit.



                         III. SUFFICIENCY OF THE EVIDENCE




        Appe llant conten ds that the evidenc e was ins ufficient to su pport his

conviction. When an appellant challenges the sufficien cy of the eviden ce, this

Court is obliged to review that challenge according to certain well-settled

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

testimony of the State ’s witne sses and re solves all conf licts in the testim ony in

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

an accused is originally cloaked with a presumption of innocence, a jury verdict

removes this presu mption and rep laces it with o ne of gu ilt. State v. Tug gle, 639

S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the burden of proof re sts with

Appellant to dem onstrate the insufficie ncy of the convicting eviden ce. Id. On

appe al, “the [S]tate is entitled to the strongest legitimate view of the evidence as

well as all reason able an d legitima te inferenc es that m ay be dra wn there from.”

Id. Where the sufficiency of the evidence is contested on appeal, the relevant


        2
          Although it is not clear, Appellant apparently contends that his right to counsel was also violated
because while he was participating in the post-polygraph interview, both of his parents questioned Tarpley
about whether their son needed an attorney. However, it is clear that Appellant’s parents could not invoke
the right to co unsel on behalf of their twenty-n ine-year-o ld son. See Terry v. Lefevre, 862 F.2d 409, 412
(2d Cir. 1988) (holding that a mother could not invoke he r twenty-seven-year-old son’s right to counsel).

                                                  -12-
question for the reviewing cou rt is whether any ration al trier of fact could have

found the accused guilty of eve ry elem ent of th e offen se be yond a reaso nable

doubt. Jackson v. Virg inia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed.

2d 560 (1979). In cond ucting our e valuatio n of the convic ting evid ence , this

Court is precluded from reweighing or reconsidering the evidenc e. State v.

Morgan, 929 S.W.2d 380, 383 (Tenn. Crim. App. 1996). Mo reover, this Court

may not substitute its own inferences “for those drawn by the trier of fact from

circumstantial evidence.” State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.

App. 1990). Finally, Rule 13(e) of the Tennessee Rules of Appellate Pro cedure

provides, “findings of guilt in criminal actions whether b y the trial court or jury

shall be set aside if the evidence is insufficient to support the findings by the trier

of fact beyo nd a rea sonab le doub t.”



       In this case, Appella nt was co nvicted of a ggravate d sexua l battery. Under

Tennessee law, a person commits aggravated sexual battery when the person

has unlawful sexual contact with a victim who is less that thirteen years old.

Tenn. Code Ann. § 39-13-504(a)(4) (1997).            “Sexual contact” includes the

intentional touching of the victim ’s butto cks if the touch ing ca n be re ason ably

construed as being for the purpose of sexual arousal or gratification. Tenn. Code

Ann. § 39-13-501(2), (6) (1997). When viewed in the light most favorable to the

State, the evide nce in this c ase wa s clearly su fficient for a ratio nal jury to

conclude that Appellant had committed this offense. Stump testified that she saw

Appellant rub his pe nis on the bu ttocks of the n aked four-ye ar-old fema le victim.

In addition, the State introduced Appellant’s signed statement in which he

admitted that he had rubbed his penis on the buttocks of the naked victim in order

to obtain s exual gra tification.

                                          -13-
         Appellant essentially argues that Stump’s testimony should be disregarded

because she had a motive to lie and because her testimony contained

statem ents that were either contradicted by other parts of her testimony or by the

testimony of Appellant and other w itnesses. Furthe r, Appellant esse ntially argues

that his signed statement should be disregarded because he testified at trial that

the statement was given under stress and he only made the sta teme nt in order

to obtain custody of his children. However, “[t]he credibility of the witnesses, the

weight to be given their testim ony, and the reconciliation of conflicts in the

evidence are matters e ntrusted exclusively to the jury as the triers of fact.” State

v. Cribbs, 967 S.W.2d 773, 793 (Tenn. 1998). It is obvious that the jury chose

to believe Stump ’s testimo ny and c hose to reject Ap pellant’s tes timony. In short,

it is clear that when the evidence is viewed in the light most favorable to the

State, a rational jury could find beyond a reasonable doubt that Appellant had

comm itted the offense of ag gravated sexu al battery. 3 This issu e has n o merit.



                IV. FAILURE TO INSTRUCT ON LESSER OFFENSES




         Appellant conten ds that the trial court erred when it failed to instruct the

jury on the lesser included offenses, particularly the offense of child abuse.



         Tennessee Code Annotated section 40-18-110(a) provides that a trial

judge must charge the jury with all lesser grades or classes of an offense



        3
          As part of his sufficiency of the evidence argument, Appellant alleges that the jury ignored the
evide nce and b ase d its ve rdict o n pas sion and p rejud ice. H owe ver, A ppe llant h as fa iled to supp ort this
conclusory statement with citation to anything in the record. In fact, Appellant has failed to identify any
reason in his brief for why the jury would have been prejudiced against him. During the hearing on
Appellant’s Motion for a New Trial, the trial court stated that there was no evidence that passion or
prejudice had played any part in the jury’s verdict. There is absolutely nothing in the record that
preponderates against the trial court’s finding.

                                                       -14-
supported by the evidence , without an y reques t on the pa rt of the defe ndant to

do so. Ten n. Cod e Ann. § 40-18-1 10(a) (19 97). See also State v. Trusty, 919

S.W .2d 305, 311 (Tenn. 1996). However, the Tennessee Supreme Court has

held that error cannot be predicated on a trial court’s failure to charge a lesser

included offense when the evidence clearly demonstrates that the defen dant is

guilty of a grea ter offense . State v. Stephenson, 878 S.W.2d 530, 550 (Tenn.

1994).     Furthe r, this C ourt ha s spe cifically held that a trial cour t’s failure to

instruct the jury on the lesser included offense of child abuse was not error when

the evidence clearly showed that the defendant had committed aggravated

sexual battery. State v. Blanton, 926 S.W .2d 953, 960 (Tenn. Crim . App. 1996 ).

In order to prove that Appellant had committed aggravated sexual battery, the

State had to establish that Appellant in tentionally touched the buttocks of the

four-ye ar-old victim for the purpose of sexual arousal or gratification. Tenn. Code

Ann. §§ 39-13-501(2), (6), -504(a)(4) (1997). The evidence in this case, including

Appe llant’s own s tatem ent, cle arly esta blishe d that A ppella nt com mitted this

offense and nothin g less. Thus , the trial c ourt did not err w hen it failed to instruct

the jury on any lesse r included offenses . This issu e has n o merit.



 V. THE TRIAL COURT’S RESPONSE TO A QUESTION FROM THE JURY




         Appellant contends tha t the trial court’s response to a question from the

jury resulted in undue prejudice. The record indicates that during deliberations,

the jury returned with a question about whether attempted rape of a child was a

more serious offense than aggravated sexual battery. In response , the trial court

stated:




                                           -15-
       Don ’t concern yourselves with which case is the more severe. Do not
       concern yourselves with that. Concern yourselves with which of the
       charges fit the facts and then let the chips fall where they may. Is that
       sufficient explanation?


       Appellant cites Veal v. Sta te, 196 Tenn. 443, 268 S.W.2d 345 (1954), for

the propos ition that the tria l judge sh ould no t, through action or word, indicate any

conclusion as to the guilt or innocence of the accused. However, Appellant has

failed to explain how this co mme nt from the trial court could be construed as a

comment on the strength o f the State’s evidence. Indeed, it is evident that the

trial court was no t comm enting on the e vidence. Rath er, the trial court mere ly

encouraged the jury to consider the facts and apply the facts to each of the

charges to see whether the proof established guilt for either charge, regardless

of which c harge w as the m ore serio us. This issue ha s no m erit.



                           VI. LENGTH OF SENTENCE




       Appellant contends that the trial court erroneously imposed a longer

sentence than he deserves.



       “When reviewing sentencing issues . . . including the granting or denial of

probation and the length of sentence, the appellate co urt shall conduc t a de novo

review on the record of such issues. Such review shall be conducted with a

presumption that the determinations made by the court from which the appeal is

taken are correct.” Ten n. Code A nn. § 40-35-401(d ) (1997). “However, the

presumption of correctness which accompanies the trial court’s action is

conditioned upon th e affirma tive show ing in the re cord tha t the trial court

considered the sentencing principles and a ll relevant fac ts and circ umsta nces.”

                                          -16-
State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In conducting our review, we

must consider all the evidence, the presentence report, the sentencing principles,

the enhancing and mitigating factors, arguments of counsel, the appellant’s

statements, the nature and character of the offense, and the appellant’s potential

for rehabilitation. Tenn. Code Ann. §§ 40-35-103(5), -210(b) (1997 & Supp.

1998); Ashby, 823 S.W.2d at 169.                 “The defendant has the burden of

demonstrating that the sentence is improper.” Id. Beca use th e reco rd in this

case indicates that the trial court properly considered the sentencing principles

and all releva nt facts and c ircum stanc es, ou r review is de novo with a

presumption of correctness.



       In this case, Appellant was convicted of aggravated sexual battery, a Class

B felony. See Tenn. Code Ann. § 39-13-504(b) (1997). The sentence for a

Range I offender convicted of a Class B felony is between eight and twelve years.

Tenn. Code A nn. § 40-35-1 12(a)(2) (1997).           When both enhancement and

mitigating factors are applicable to a sentence, the cour t is directed to begin w ith

the minimum sentence, enhance the sentence within the range as appropriate for

the enhancement factors, and then reduce the sentence within the range as

appropriate for the mitigating factors. Tenn. Code Ann. § 40-35-210(e) (1997).



       In sentencing Appellant to a term of ten years, the trial court found that

enhancement factor (1) applied because Appellant had a history of criminal

convictions or criminal behavior in addition to those necessary to establish the

approp riate sentencing range. See Tenn. Code Ann. § 40-35-114(1) (1997). The

trial court con cluded that this facto r was en titled to little weigh t. The trial court

also found that enhancement factor (15) applied because Appellant had abused

                                          -17-
a position of private trust in a way that significantly facilitated the commission of

the offense.    See Tenn. C ode Ann . § 40-35-114 (15) (1997). T he trial court

concluded that this factor was entitled to significant weight. The trial court then

considered several mitigating factors proposed by Appellant, but found that the

only mitigating factor that applied was that Appellant had some mental problems.

See Tenn. Code Ann. § 40-35-113(13) (1997). The trial court c onclu ded th at this

mitigating factor wa s entitled to little w eight.



       Appellant does n ot challen ge the trial co urt’s application of the two

enhancement factors, an d we co nclude that they w ere corre ctly applied . Indeed,

the record indicates that enhancement factor (1) applied because Appellant has

previous convictions for marijuana possession and for driving under the influence

of an intoxicant.     We also conclude that enhancement factor (15) applied

because as the victim’s father charged with her care and control, Appellant

abused his position of private trust in a man ner tha t significa ntly facilita ted his

commission of the offens e. See State v. Hayes, 899 S.W.2d 175, 187 (Tenn.

Crim. App. 1995). Appellant doe s not contend that the trial court should h ave

applied any additional mitigating factors, and we conclude that no additional

mitigating factors applied in this case.



       Essentially, Appellant’s sole argument in regard to his sentence is that the

trial court failed to give adequate weight to the mitigating factor as balanced

against the enh ancem ent factors.          Not only is this conclusory allegation

completely insuffic ient to s atisfy A ppella nt’s bu rden o f dem onstra ting tha t his

sentence is improper, it is well-established that the weight to be given to each

enhancement and mitigating factor is left to the trial court’s discretion so long as

                                           -18-
it complies with the purposes and principles of the 1989 Senten cing Ac t and its

findings are ade quately su pported by the rec ord. State v. Zonge, 973 S.W.2d

250, 259 (T enn. C rim. App . 1997); State v. Baxter, 938 S.W.2d 697, 705 (Tenn.

Crim. App. 19 96); Hayes, 899 S.W.2d at 185. Therefore, we conclude that a ten

year sen tence is e ntirely appr opriate in th is case. T his issue has no merit.



      Accordingly, the judgment of the trial court is AFFIRMED.



                                  ____________________________________
                                  JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
DAVID H. WELLES, JUDGE


___________________________________
THOMAS T. WOODALL, JUDGE




                                         -19-
