         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT KNOXVILLE            FILED
                            MAY, 1998 SESSION
                                                       October 2, 1998

                                                     Cecil Crowson, Jr.
                                                      Appellate C ourt Clerk



STATE OF TENNESSEE,            )    No. 03C01-9705-CC-00191
                               )
      Appellee                 )
                               )    Sevier County
vs.                            )
                               )    Honorable Rex Henry Ogle, Judge
CECIL EUGENE McGUIRE,          )
                               )    (Aggravated Sexual Battery, Aggravated
      Appellant.               )    Criminal Trespass)



FOR THE APPELLANT:                  FOR THE APPELLEE:

DENNIS CAMPBELL                     JOHN KNOX WALKUP
Assistant Public Defender           Attorney General & Reporter
140 A Court Ave.
Sevierville, TN 37862               MICHAEL J. FAHEY
                                    Assistant Attorney General
                                    Criminal Justice Division
                                    425 Fifth Ave. North
                                    2d Floor, Cordell Hull Bldg.
                                    Nashville, TN 37243-0493

                                    ALFRED C. SCHMUTZER, JR.
                                    District Attorney General

                                    STEVEN R. HAWKINS
                                    Assistant District Attorney General
                                    125 Court Ave., Suite 301
                                    Sevierville, TN 37862



OPINION FILED: ____________________


AFFIRMED AS MODIFIED


CURWOOD WITT
JUDGE
                                      OPINION



              The Sevier County Grand Jury indicted sixteen-year old Cecil

Eugene McGuire for aggravated rape, aggravated sexual battery, and

aggravated burglary. After a trial, the jury acquitted the defendant of aggravated

rape and aggravated burglary but found him guilty of aggravated sexual battery

and aggravated criminal trespass, a lesser grade offense of aggravated burglary.

The trial court sentenced him to serve eleven years in the custody of the

Department of Correction as a Range I, standard offender for the Class B felony,

concurrently with eleven months and twenty-nine days for the Class A

misdemeanor. Pursuant to Rule 3 of the Tennessee Rules of Appellate

Procedure, the defendant presents the following issues:

              1.     Whether the indictments are fatally
                     defective and thereby deprive the trial
                     court of jurisdiction in this case.

              2.     Whether the evidence as a matter of
                     law was insufficient to support the
                     convictions.

              3.     Whether the trial court improperly
                     credited and weighed the enhancement
                     factors and imposed an excessive
                     sentence.


              After a careful review of the record and the applicable law, we find

no error warranting reversal of the defendant’s convictions. We affirm the

convictions, but for reasons explained below, we modify the felony sentence

from eleven years to ten years.



              The defendant’s convictions arose out of an incident involving the

defendant, known as “Little Gene,” his co-defendant, Randy Steckley, 1 known as

“Cash,” and Lorriane Toth,2 the victim. In May of 1995, Lorriane Toth lived in the



       1
             Steckley, who was three years older than McGuire, was indicted
separately. He pleaded guilty to rape and received a sentence of eleven years.
       2
               In the indictment, the victim’s first name is spelled “Lorriane.” At
other places in the record it is spelled “Lorraine.” We have followed the grand
jury’s spelling in this opinion.

                                          2
Ridgewood Apartments in Pigeon Forge with her two teen-age daughters. The

defendant’s grandmother and his uncle, Mickey McGuire, lived in a nearby

apartment. Mickey McGuire employed both the defendant and the co-defendant.

After work on May 17, the three went to McGuire’s apartment.3 A neighbor

named Rod joined them, and the adults purchased beer. Everyone, including

the defendant began to drink. W hen the beer was exhausted, someone would

leave to buy a new supply. Randy Steckley brought some marijuana which he,

the defendant, and others smoked.



             At some point during the evening, Rod’s wife, Lori, invited her

friend, Lorriane Toth, to come to the “social get-together.” Ms. Toth had broken

her hip two months earlier and was unable to walk without a walker or crutches.

The doctor had prescribed Tylenol with codeine for pain and Xanax for

depression. She had been drinking beer before she arrived at the party and she

continued to consume beer throughout the evening. Ms. Toth knew the

defendant from his previous visits to his grandmother’s apartment, but she did

not talk with him much during the evening. She spoke to Steckley at least once

when she told him that he had nice teeth. She also testified that Steckley came

over and grabbed her breast but that she hit him and told him to get away from

her. Shortly after midnight, Ms. Toth decided to go home to bed. Her fourteen-

year old daughter, Amber, went to her bedroom to go to bed. Ms. Toth left her

front door unlocked because Paige, her younger daughter, had gone to Lori’s

apartment for awhile. Ms. Toth had been drinking heavily and before getting into

bed she took the Xanax that her doctor had prescribed. She admitted that she

did not undress and that she passed out on top of the covers.



             At about 1:30 a.m., she awoke to find Randy Steckley on top of

her. He had penetrated her vagina and was holding her arms down. She tried




        3
             According to the defendant’s testimony, his grandmother was out of
town.

                                        3
unsuccessfully to push him off. When she told him to get off of her, he refused

and indicated that he would not leave until he ejaculated. During this time she

saw “Little Gene” standing by the other bed. Her panties were on the floor next

to him. The defendant’s pants were unzipped, and he and Steckley were

laughing and joking. After Steckley finished, he and the defendant left. She

went to check on Amber whom she found sleeping. Then she went “hollering”

down the hall to the McGuire apartment. She found Mickey McGuire sitting on

the sofa by himself. She told him in no uncertain terms what had occurred and

what she would do if she caught the two and then went back to her apartment.

Lori heard the commotion and called 911. Ms. Toth went to the hospital where

she was interviewed by a police investigative officer. She identified “Little Gene”

and “Cash” as the rapists. The detective testified that Ms. Toth smelled strongly

of alcohol, that her eyes were red, and that she was “very, very angry.” Hospital

testing indicated that her blood alcohol level was .30%.



              The defendant testified on his own behalf at trial. He admitted that

he had drunk quite a lot of beer and that he had smoked marijuana during the

evening. He said that the victim had spent a lot of time talking and flirting with

Randy Steckley. According to the defendant, the victim told him that she’d like to

go in the bedroom with Steckley. After the victim left the party, he and Steckley

went to find some more marijuana. Steckley suggested that they go to “that

woman’s place” because she had told him to come on up. He found the door

partially open but no one responded to their knocks. When Steckley went into

the apartment, the defendant followed. He knew where Amber slept, and he

went to her room. When he turned the light on, he saw that she was asleep on

the bed. After he turned the light off, he closed the door and went down the hall

to see what Steckley was doing in Ms. Toth’s bedroom. He saw the victim

asleep on the bed, and he told Steckley that they should get out of there.

Steckley ordered him to take off her panties. The defendant testified that he

obeyed because he was afraid of Steckley. Steckley, he said, “knew a lot of



                                          4
people” and had a tattoo that indicated he had killed someone. At Steckley’s

direction he spread the victim’s legs apart and touched the victim’s vagina. He

let Steckley smell his fingers. Steckley then pushed him back saying, “Get out of

my way.”



              After Steckley completed the act, he followed the defendant out of

the room. Steckley took three dollars that were lying on the kitchen counter and

another dollar or two from a purse. As they were sitting in the McGuire

apartment, they heard the victim yelling as she was coming down the hall. The

defendant ran out the front door while Steckley climbed out a back window.

They walked to a motel. Steckley slid open a bathroom window on one of the

units and the two entered. Later, after Steckley had gone to sleep, the

defendant called his parents, and his father came to pick him up. In the

afternoon, the defendant and his father met with the detective who was

investigating the case. He identified the rapist as Randy Steckley and told the

police where Steckley could be found. At first, the defendant denied that he was

present when Steckley raped the victim, but when questioned more closely, he

gave a statement that was virtually identical to his trial testimony.4



              Based on this evidence, the jury acquitted the defendant of

aggravated rape and aggravated burglary but convicted him of aggravated

sexual battery and aggravated criminal trespass.



              In his first issue, the defendant contends that, based upon State v.

Roger Dale Hill, Sr., No. 01C01-9508-CC-00267 (Tenn. Crim. App., Nashville,

June 20, 1996), the indictment is defective because it fails to allege a culpable

mental state. However, the supreme court has reversed this court’s decision in




       4
              The detective did not tape record the interview, and, when the
detective asked the defendant to make a statement in writing, the defendant’s
father, who was present throughout, declined and asked for a lawyer. At trial the
detective’s oral testimony placed the defendant’s statement before the jury.

                                          5
Roger Dale Hill. See State v. Hill, 954 S.W.2d 725 (Tenn. 1997).5 Our

resolution of this issue is guided by the supreme court’s pronouncement in Hill.



              The Sentencing Reform Act of 1989 requires a culpable mental

state in order to establish an offense unless the statutory definition of the crime

“plainly dispenses with a mental element.” Tenn. Code Ann. § 39-11-301(b)

(1997). Hill holds that a charging instrument which charges a crime that by its

statutory terms does not expressly require or plainly dispense with a culpable

mental state may be sufficient without explicitly alleging a culpable mens rea.

Hill, 954 S.W.2d at 726. The supreme court said that such a charging

instrument is sufficient to support prosecution if

              (1)   the language of the indictment is sufficient to
              meet the constitutional requirements of notice to the
              accused of the charge against which the accused
              must defend, adequate basis for entry of a proper
              judgment and protection from double jeopardy;

              (2)    the form of the indictment meets the
              requirements of Tennessee Code Annotated section
              40-13-202; and

              (3)    if the mental state can be logically inferred
              from the conduct alleged.

Hill, 954 S.W.2d at 726-727.



              In this case, the indictment alleging aggravated sexual battery

closely follows the statutory language. Tennessee Code Annotated section 40-

13-504, in pertinent part, describes aggravated sexual battery as

              unlawful sexual contact with a victim by the defendant
              . . . [and] [t]he defendant is aided and abetted by one
              (1) or more other persons; and [t]he defendant has
              reason to know that the victim is mentally defective,
              mentally incapacitated or physically helpless.

Tenn. Code Ann. § 39-13-504(a)(3)(B) (1997).

              The indictment alleges that the defendant

              did unlawfully and feloniously have sexual contact


       5
            We note that the defendant’s brief in this case was filed three
months before the supreme court filed its decision in Hill.

                                          6
               with another person, to-wit: Lorriane Toth, and the
               said defendant was aided or abetted by one (1) other
               person and the defendant knew or had reason to
               believe that said victim was physically helpless.
               Tenn. Code Ann. § 39-13-504.


This language complies with the statutory form by stating the “facts constituting

the offense in ordinary and concise language, without prolixity or repetition, in

such a manner as to enable a person of common understanding to know what is

intended, and with that degree of certainty which will enable the court, on

conviction, to pronounce the proper judgment. . . .” Hill, 954 S.W.2d at 728;

Tenn. Code Ann. § 40-13-202 (1997). Furthermore, it is adequate to protect the

defendant from double jeopardy.



               Whether the requisite mental state may be inferred from the

charging language requires more analysis. The crime of aggravated sexual

battery of a physically helpless person has three elements (1) intentional sexual

contact, (2) the existence of at least one aider and abettor, and (3) knowledge

that the victim is physically helpless. Tenn. Code Ann. § 39-13-504(a)(3)(B)

(1997). This court has previously observed that the mens rea for sexual contact

is intentional. See e.g., State v. Howard, 926 S.W.2d 579, 584 (Tenn. Crim.

App. 1996); Roger Lee Kimmel v. State, No. 02C01-9701-CR-00006, slip op. at 7

(Tenn. Crim. App., Jackson, Jan. 12, 1998) (Wade, J., concurring), pet, for perm.

app. filed (Tenn., Feb. 24, 1998). As defined in the Criminal Code “sexual

contact” is ““the intentional touching of the victim’s . . . intimate parts . . . if that

intentional touching can be reasonably construed as being for the purpose of

sexual arousal or gratification.” Tenn. Code Ann. § 39-13-501(6) (1997). This

court has not previously considered the mens rea of the requirement that “the

defendant is aided and abetted by one (1) or more other persons.” Tenn. Code

Ann. § 39-13-504(a)(3)(B) (1997). However, since the language of the statute

requires only that an aider and abettor exist, we find that the legislature has

clearly dispensed with any mens rea for this particular element. As to the third

element, the statute itself provides that the accused must have “reason to know”


                                             7
of the victim’s physically helpless state. Tenn. Code Ann. § 39-13-504(a)(3)(B)

(1997). Accordingly, the indictment in this instance must notify the defendant

that he intentionally had sexual contact with a victim that he knew or had reason

to know was physically helpless and that he was aided and abetted by at least

one other person.



              We find that the language of the indictment adequately supplies the

mens rea in this instance. This court has previously found that the words “sexual

contact” implies that the defendant intentionally touched the victim. State v.

Milton S. Jones, Jr., No. 02C01-9503-CR-00061, slip op. at 5 (Tenn. Crim. App.

Jackson, Mar. 7, 1997), pet. for perm. app. filed (Tenn., May 6, 1997); see also

State v. John James, No. 01C01-9601-CR-00016, slip op. at 19-20 (Tenn. Crim.

App., Nashville, Mar. 27, 1997). Inclusion of the words “sexual contact” in the

indictment necessarily implies an intentional mens rea for this element of the

crime. Milton S. Jones, Jr., slip op. at 5; John James, slip op. at 19. But see

Roger Lee Kimmel, slip op. at 4 (The phrase “sexual contact” imports no mental

state.).



              As to the defendant’s knowledge of the victim’s helplessness, the

defendant concedes that the indictment alleges that the defendant had “reason

to know” that the victim was physically helpless. Accordingly, we find that the

indictment satisfies the three Hill requirements to support prosecution for the

offense of aggravated sexual battery.6 The indictment in the instant case is

sufficient to support the prosecution of the defendant for that offense.



              The defendant next contends that the evidence in the record is

insufficient as a matter of law to support his conviction for aggravated sexual

battery. He argues that the state failed to prove that any one aided or abetted


       6
            The defendant does not contend that the indictment failed to allege
a culpable mental state for the offense of aggravated burglary or criminal
trespass.

                                         8
him in the commission of the crime. The state contends that under Tennessee

law an aider and abettor is one who advises, counsels, procures or encourages

another to commit a crime, see State v. Rodriguez, 752 S.W.2d 108, 111 (Tenn.

Crim. App. 1988), and that Randy Steckley’s actions, as proven at trial, satisfy

this definition. We agree.



              When there is challenge to the verdict based upon the sufficiency

of the evidence, this court must review the evidence in the light most favorable to

the prosecution and determine whether “any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.” Jackson

v. Virginia, 443 U.S. 307, 317, 99 S. Ct. 2781, 2789; State v. Cazes, 875 S.W.2d

253, 259 (Tenn. 1994); Tenn. R. App. P. 13(e). A guilty verdict accredits the

testimony of the witnesses for the state, and on appeal, the state is entitled to

the strongest legitimate view of the evidence and all reasonable or legitimate

inferences which may be drawn therefrom. State v. Harris, 839 S.W.2d 54, 75

(Tenn. 1992). In determining that sufficiency, this court does not reweigh or

reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

Since a jury conviction removes the presumption of innocence with which a

defendant is initially cloaked and replaces it with one of guilt, a convicted

defendant has the burden of demonstrating on appeal that the evidence is

insufficient. State v, Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).



              In order to convict the defendant of aggravated sexual battery as

defined by Tennessee Code Annotated section 39-13-504(a)(3)(B), the state had

to prove beyond a reasonable doubt that the defendant had intentional sexual

contact with a victim whom he had reason to know was physically helpless. In

addition, the state was required to prove that he was aided and abetted in this

act by at least one other person. The defendant concedes that the evidence is

sufficient to show that he intentionally removed the victim’s undergarment and

touched her genitals at a time when he knew she was disabled due to a physical



                                          9
injury and had passed out after drinking excessively. He does contend, however,

that no evidence exists to show that the co-defendant was an aider or abettor.



               The resolution of the issue is determined by the legal definition of

“aider and abettor.”7 This court considered a similar issue in State v. Woody J.

Dozier, No. 02C01-9610-CC-00357 (Tenn. Crim. App., Jackson, Nov. 4, 1997),

pet. perm. app. filed Jan. 29, 1998. Dozier was charged with rape, and the

state sought to enhance the offense to aggravated rape through proof that he

was aided or abetted by a co-defendant. Id., slip op. at 21. The proof at trial

demonstrated that Turner, the co-defendant, was present and in a position to aid

and assist his co-defendant at all times during the commission of the offense.

The victim also testified that she overheard the two discussing her fate. Id., slip

op. at 22. In concluding that the evidence was legally sufficient to support the

jury’s verdict, this court held:

                      More than mere presence at the crime scene
               and an acquaintanceship with the perpetrator is
               necessary to support a finding that a person is an
               aider and abettor. Essary v. State, 210 Tenn. 220,
               357 S.W.2d 342 (Tenn. 1962); see also People v.
               Rockwell, 188 Mich. App. 405, 470 N.W.2d 673
               (Mich. App. 1991); State v. Brumley, 1996 Ohio App.,
               LEXIS 1390, No. 89-P-2092 (Ohio App. 11 dist. Mar.
               29, 1996). Moreover, mere knowledge that a crime is
               being committed and the failure to prevent it does not
               amount to aiding and abetting. But presence alone is
               enough if presence is intended to assist the
               perpetrator in the commission of the offense. See 1
               F. Wharton, Criminal Law § 114 at 60 (1978).

                     For Turner to aid or abet the appellant, it was
               unnecessary that he share the criminal intent of the
               perpetrator to commit the rape. However, he must
               have knowingly intended to assist, encourage, or


       7
               We recognize that in 1989, the legislature passed Tennessee Code
Annotated section 39-11-401 which defines the criminal responsibility of one
party for the acts of another. The Sentencing Commission comments to this
section explain that the statute is a restatement of the principles of Tennessee
common law concerning the liability of principals, accessories before the fact,
and aiders and abettors. In State v. Carson, 950 S.W.2d 951 (Tenn. 1997), our
supreme court held that the legislature intended to embrace the common law
principles governing aiders and abettors in the new statute. 950 S.W.2d at 955-
956. Therefore, we rely upon the common law definition of aiding and abetting
as developed in Tennessee case law prior to the 1989 revision of the criminal
code.

                                         10
               facilitate the design of the criminal actor. Thus, there
               must be some evidence tending to show that the
               alleged aider and abettor, by word or deed, gave
               active encouragement to the perpetrator of the rape
               or, by his conduct, made it known to such perpetrator
               that he was standing by to lend assistance when and
               if it should become necessary. See Flippen v. State,
               211 Tenn. 507, 365 S.W.2d 895 (Tenn. 1993); see
               also State v. Penland, 343 N.C. 634, 472 S.E.2d 734,
               743 (N.C. 1996), cert. denied __ U.S. __, 136 L.Ed.
               2d 725, 117 S.Ct. 781 (1997). The aider must,
               therefore, in some way “associate himself with the
               venture, participate in it as in something that he
               wishes to bring about, and seek by his actions to
               make it succeed.” United States v. Peoni, 100 F.2d
               401, 402 (2d Cir. 1938), quoted with approval in Nye
               & Nissen v. United States, 336 U.S. 613, 619, 69
               S.Ct. 766, 770, 93 L.Ed. 919 (1949). Thus, although
               his intent to assist the perpetrator may be proven by
               circumstantial evidence and need not be
               demonstrated by express actions, the evidence must
               support the conclusion that the aider’s presence lent
               support and encouragement to his companion(s).

Dozier, slip op. at 23-24.8


               Whether or not a person present at the scene of a crime aided or

abetted the perpetrator is a question of fact to be determined by the jury.

Ultimately, the answer depends upon the circumstances surrounding the

person’s presence and his actions before, during and after the commission of the

offense. Id., slip op. at 24. In this case, Randy Steckley was present throughout

the commission of the sexual battery. Moreover, the evidence is more than

sufficient to show that Steckley shared defendant’s intent to commit the offense

and that he lent active support and encouragement. See Dozier, concurring

opinion by Tipton, J. at 1 (aider and abettor must act with an awareness of the

principal’s intent).   In fact, the defendant testified that Steckley ordered him to

remove the victim’s undergarments and that he touched the victim’s genitalia so

that Steckley could smell his hand. The evidence in the record demonstrates

beyond a reasonable doubt that the co-defendant advised, counseled, and even

urged the defendant to commit sexual battery and that his presence lent


       8
               But see Dozier, concurring opinion by Tipton, J. at 1 (historically
three requirements for aiding and abetting in Tennessee are (1) presence, (2)
intent that the crime be committed, (3) participation, procurement, assistance,
promotion of the offense).

                                           11
encouragement and support. See State v. Rodriguez, 752 S.W.2d 108, 111

(Tenn. Crim. App. 1988); Dozier, slip op. at 23-24. The evidence in the record is

more than sufficient to sustain the defendant’s conviction for aggravated sexual

battery as defined in Section 39-13-504(a)(3)(B).



                     Also, although the defendant has not challenged the

sufficiency of the evidence to convict him of aggravated criminal trespass, we

find that the record overwhelmingly supports the jury’s conclusion that the

defendant was guilty of committing this offense. See Tenn. Code Ann. § 39-14-

406 (1997).



              In his final issues, defendant challenges his sentences. The trial

judge found him to be a Range I offender and ordered him to serve concurrent

sentences of eleven years for aggravated sexual battery and eleven months and

twenty-nine days for aggravated criminal trespass. The defendant argues that

the trial court improperly credited and weighed the enhancement factors, ignored

the mitigating circumstances, and imposed excessive sentences. We disagree.



              When an accused challenges the length, range, or manner of

service of a sentence, we must conduct a de novo review with a presumption

that the determinations made by the trial court are correct. Tenn. Code Ann. §

40-35-401(d) (1997). The burden of showing that the sentence is improper is

upon the appealing party. Tenn. Code Ann. § 40-35-401(d), Sentencing

Comm’n Comments (1997) . This presumption, however, “is conditioned upon

the affirmative showing in the record that the trial court considered the

sentencing principles and all relevant facts and circumstances.” State v. Ashby,

823 S.W.2d 166, 169 (Tenn. 1991). In making its sentencing determination, the

trial court, at the conclusion of the sentencing hearing, determines the

sentencing range, the specific sentence, and the propriety of imposing a

sentence involving an alternative to total confinement. The trial court must



                                         12
consider (1) any evidence presented at trial and the sentencing hearing, (2) the

presentence report, (3) the sentencing principles. (4) the arguments of counsel,

(5) any statements the defendant has made to the court, (6) the nature and

characteristics of the offense, (7) any mitigating and enhancement factors, and

(8) the defendant’s amenability to rehabilitation. Tenn. Code Ann. §§ 40-35-

103(5), and 40-35-210(a), (b) (1997); State v. Holland, 860 S.W.2d 53, 60

(Tenn. Crim. App. 1993). The trial court must begin with a presumptive

minimum sentence. Tenn. Code Ann. § 40-35-210(c). The sentence may then

be increased by any applicable enhancement factors and reduced in the light of

any applicable mitigating factors. Tenn. Code Ann. § 40-35-210(d),(e).



              The Act further provides that “[w]henever the court imposes a

sentence, it shall place on the record, either orally or in writing, what

enhancement or mitigating factors it found, if any, as well as findings of facts as

required by § 40-35-209.” Tenn. Code Ann. § 40-35-210(f) (1997) (emphasis

added). Even the absence of the enhancing and mitigating factors must be

recorded. Tenn. Code Ann. § 40-35-210, Sentencing Comm’n Comments.

(1997). In the event the record fails to demonstrate the appropriate

consideration by the trial court, appellate review of the sentence is purely de

novo. Ashby, 823 S.W.2d at 169. 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. State v. Ashby, 823 S.W.2d at 169; Tenn. Code Ann. §§ 40-

35-103(5), -210(b) (1997). If our review reflects that the trial court properly

considered all relevant factors and the record adequately supports its findings of

fact, this court must affirm the sentence even if we would have preferred a

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



              In this instance, the trial court gave due consideration to the



                                          13
applicable sentencing principles and factors and placed his findings on the

record. We therefore review defendant’s sentences with the presumption that

the trial court’s findings are correct.



                 The trial judge relied upon two enhancement factors in his

sentencing determination: (1) the defendant has a previous history of criminal

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

appropriate range, and (16) the crime was committed under circumstances under

which the potential for bodily injury to a victim was great. Tenn. Code Ann. § 40-

35-114 (1), (16) (1997).



                 Apparently, the parties suffered from some confusion as to which

enhancement and mitigating factors the trial judge actually applied. The

prosecution urged the trial court to find that the defendant was a leader in the

commission of an offense involving two or more criminal actors, Tenn. Code

Ann. § 40-35-114(2), and that the felony was committed while the defendant was

on a type of release into the community. Tenn. Code Ann. § 40-35-114(13)(E).

Prior to hearing the testimony, the trial court made some tentative comments

indicating that he might look favorably on the state’s argument for factor (2).

However, at the close of the hearing, the trial judge did not conclude that the

defendant was a leader in the offense. The trial court also declined to use factor

(13) to enhance the sentence for aggravated sexual battery because the proof

did not clearly establish that the defendant was under some type of supervision

from the juvenile court.     In mitigation, the trial court found that the defendant

had rendered some assistance to the authorities in identifying and apprehending

his co-defendant. He also gave some consideration to the defendant’s youth

although he did not find that the defendant lacked substantial judgment. The

trial court also noted that the defendant demonstrated a sustained intent to

violate the law and that the defendant is the kind of dangerous person that

society fears.



                                           14
              In this appeal, the defendant contends that the defendant’s record

of criminal behavior is minimal, that nothing in the record indicates that he was a

leader, and that his troubled childhood and dysfunctional home life are

substantial factors in support of mitigation.



              The record supports the claim that the defendant has had a difficult

life. His parents are both alcoholics and, for various reasons, were unable to

provide him and his brother with much stability or supervision. The defendant’s

juvenile record begins at age thirteen and includes vandalism of a teacher’s car,

truancy, underage consumption of alcohol, and inhaling paint. He was placed at

Haslam Center in Knoxville in September 1993 and then at Cooper House in

Chattanooga in June 1994. He returned home on April 7, 1995, just five weeks

before he committed the present offenses. At the sentencing hearing, the

defendant admitted that he used alcohol and inhaled paint even after his arrest

in May, 1995.9 He stated, however, that he had been “clean” for the past

eighteen months. The defendant, who was then eighteen years old, had married

and was the father of a three-month old daughter. He dropped out of school in

the tenth grade, and he and the co-defendant were working for the defendant’s

uncle.



              As a juvenile, the defendant accumulated a record that includes

serious drug and alcohol abuse and impulsive, destructive behavior. During his

three-year placement in highly structured programs, he did well, but when he

returned home, he immediately resorted to his earlier behavior patterns of

drinking, inhaling paint, and using marijuana. The trial court did not err by

placing substantial weight on the defendant’s record of prior criminal behavior.



              There is an insufficient basis in the record, however, to justify the




         9
              The defendant was the only witness who testified at the sentencing
hearing.

                                         15
use of factor (16). The defendant’s acts caused the victim no physical injury,

and the potential for serious bodily injury to either the victim or the victim’s

daughters is not demonstrated in the record.



              Contrary to the defendant’s argument, the trial judge did not ignore

the mitigating factors. He acknowledged that the defendant had assisted the

authorities, that the defendant’s youth was entitled to some weight, and that his

home environment had been much less than satisfactory. See Tenn. Code Ann.

§ 40-35-113(6),(9),(13) (1997). However, the trial court found that the two

enhancement factors substantially outweighed the mitigators.



              For a Range I offender, the appropriate sentencing range is not

less than eight nor more than twelve years for aggravated sexual battery. Tenn.

Code Ann. § 40-35-112(2) (1997). For aggravated criminal trespass of a

habitation, a Class A misdemeanor, the maximum sentence is eleven months

and twenty-nine days. This defendant, although youthful, has demonstrated that

some restraint is necessary to protect society from his criminal behavior.

Measures less restrictive than confinement have not proven effective, and we

question the defendant’s ability to rehabilitate himself while he is under the

influence of those whose actions contributed to his downfall. A lengthy

confinement is also necessary to avoid depreciating the seriousness of the

offenses. However, the sentence in this case should be reduced to reflect the

removal of enhancement factor (16). The sentence for aggravated sexual

battery is modified to ten years. This sentence shall run concurrently with the

eleven-month and twenty-nine day misdemeanor sentence.



              Accordingly, we affirm the judgment of the trial court but modify the

felony sentence.


                                                   __________________________
                                                   CURWOOD W ITT, Judge



                                          16
CONCUR:




_____________________________
JOSEPH M. TIPTON, Judge


_____________________________
JOE G. RILEY, Judge




                                17
