          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                      FILED
                                AT KNOXVILLE
                                                                     November 3, 1999

                             JUNE 1999 SESSION                   Cecil Crowson, Jr.
                                                                Appellate Court Clerk




STATE OF TENNESSEE,                  *   C.C.A. # 03C01-9810-CR-00365

             Appellee,               *   HAMILTON COUNTY

VS.                                  *   Honorable Stephen M. Bevil, Judge

TOMMY LEE BALDWIN,                   *   (Aggravated Sexual Battery)

             Appellant.              *



FOR THE APPELLANT:                       FOR THE APPELLEE:

ARDENA J. GARTH                          PAUL G. SUMMERS
District Public Defender                 Attorney General & Reporter

DONNA ROBINSON MILLER                    MARVIN S. BLAIR, JR.
and                                      Assistant Attorney General
MICHAEL L. ACUFF                         425 Fifth Avenue North
Assistant District Public Defender
Nashville, TN 37243                      WILLIAM H. COX III
701 Cherry Street, Suite 300             District Attorney General
Chattanooga, TN 37402
                                         CLAIRE HAYES BRANT
                                         Assistant District Attorney
                                         600 Market Street, Suite 310
                                         Chattanooga, TN 37402




OPINION FILED: _______________



AFFIRMED; REMANDED FOR CORRECTION
OF JUDGMENT


JOHN EVERETT WILLIAMS,
Judge
                                   OPINION

       The defendant, Tommy Lee Baldwin, appeals from his conviction of

aggravated sexual battery, a Class B felony. The Hamilton County Criminal

Court sentenced him to fifteen years as a Range II offender. The defendant

asserts that the trial court (1) erroneously denied jury instructions regarding

lesser included offenses of attempted aggravated sexual battery and assault and

(2) improperly applied prior out-of-state convictions to classify him as a Range II

offender. We AFFIRM the trial court’s judgment.



                                  BACKGROUND

       The victim’s mother, Diana Stephens, testified that her daughter was

eleven at the time of the offense and that the defendant was living with the

Stephens family. Stephens said that she arrived home at approximately 7:00

p.m. on October 17, 1996, and slept on the couch. She awoke, noticed the

house was quiet, and checked on her children. In her children’s room, she saw

her son in the top of the bunk bed, reading a book. Her daughter, on the lower

bunk, was on her knees and naked from the waist down. The defendant was

behind her, with his pants lowered and his private parts touching the daughter’s

private parts. Stephens ran toward the defendant and struck him. The

defendant pushed Stephens to the ground and fled the house. Stephens then

contacted the police.



       The victim testified that she was eleven on the date in question. She said

that she was in the room with her brother and the defendant. The defendant was

reading a book with her brother. The defendant told her to prop on her knees

and to remove her panties. Otherwise, the defendant stated that he would do

something to her mom. The defendant briefly left the room, then returned and



                                         -2-
continued reading with the victim’s brother. The victim testified that the

defendant lowered his pants and pressed his private parts against the rear of the

victim. She testified that she pushed back, trying to push him from her. Her

mother entered the room, and the defendant fled.



         Detective Atkinson of the Chattanooga Police Department testified that

the defendant came to the police station and, after being advised of and waiving

his rights, gave a statement.1 The defendant stated that while he was reading to

the victim’s brother he felt the victim’s hands touching his privates. He also

stated that at some point his pants were down and his private parts touched the

victim’s private parts. He stated that he was leaning over toward her and

requesting her to stop when Stephens entered the room. He then pushed

Stephens and fled. Detective Atkinson also testified that the “rape kit,”

administered to the victim in order to gather sperm and other physical evidence,

yielded no results.



         The defendant presented testimony from Delynndeao Baldwin, his

nephew. Delynndeao stated that the defendant was intoxicated when he

dropped him near the police station immediately preceding the defendant’s

statement. Detective Atkinson testified, however, that the defendant exhibited

no slurred speech, difficulty walking, odor of alcoholic beverage, or any other

indication of intoxication.



                                                ANALYSIS

                                            Jury Instructions




         1
            At a pre-trial s uppres sion hea ring the de fendan t attemp ted to sup press th is statem ent.
The defendant argued that he had smoked crack cocaine, marijuana, and ingested a large
amount of liquor and other alcohol-containing beverages. Therefore, he argued, he did not
knowingly and intelligently waive his rights. He stated that he went to the police department
bec aus e “po lice w ere a t his h ous e,” an d he t hou ght th e rea son for th eir pre sen ce inv olved his
striking S tephen s. The tria l court den ied the m otion to su ppress .

                                                     -3-
         The defendant asserts that the trial court erroneously denied his request

for jury instructions on the lesser included offenses of attempted aggravated

sexual battery and assault. The defendant omitted this issue from his motion for

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

Walker, 910 S.W.2d 381, 386 (Tenn. 1995); State v. Keel, 882 S.W.2d 410, 416

(Tenn. Crim. App. 1994); State v. Jones, 733 S.W.2d 517, 524 (Tenn. Crim. App.

1987).



         Nevertheless, the trial court did not err in this matter, because the

evidence is consistent with a finding of aggravated sexual battery. Aggravated

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

defendant by the victim accompanied by any of the following circumstances: . . .

(4) The victim is less than thirteen (13) years of age.” Tenn. Code Ann. § 39-13-

504(a)(4). This offense is a Class B felony. See Tenn. Code Ann. § 39-13-

504(b). Attempt to commit aggravated sexual battery is a Class C felony. See

Tenn. Code Ann. § 39-12-107(a). Assault may be achieved by “[i]ntentionally or

knowingly caus[ing] physical contact with another and a reasonable person

would regard the contact as extremely offensive or provocative.” Tenn. Code

Ann. § 39-13-101(a)(3). This offense is a Class A misdemeanor. See Tenn.

Code Ann. § 39-13-101(b).



         Generally, “[i]t is the duty of all judges charging juries in cases of criminal

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

may be included in the indictment, to charge the jury as to all of the law of each

offense included in the indictment, without any request on the part of the

defendant to do so.” Tenn. Code Ann. § 40-18-110(a). However, “[e]rror can not

be predicated on a trial court’s failure to charge a lesser included offense when

the evidence clearly demonstrates that the defendant is guilty of a greater




                                            -4-
offense.” State v. Blanton, 926 S.W.2d 953, 960 (Tenn. Crim. App. 1996); see

also State v. Stephenson, 878 S.W.2d 530, 550 (Tenn. 1994).



       In the case of this defendant’s conviction for aggravated sexual battery,

the state must show that (1) the victim is under thirteen years of age, therefore

satisfying the statutory aggravation request, and (2) the defendant had unlawful

sexual contact with the victim. See Tenn. Code Ann. § 39-13-504. “Sexual

contact” is the intentional touching of the victim’s “intimate parts,” which

specifically include the “primary genital area, groin, inner thigh, buttock or breast

of the human being,” if the intentional touching may be reasonably construed as

for the purpose of sexual arousal or gratification. See Tenn. Code Ann. § 39-13-

501(b)(2).



       In the instant case, the record clearly establishes aggravation, because

the victim was less than thirteen years of age at the time of the contact. Further,

the testimony of the victim and Stephens supports a conclusion by a reasonable

trier of fact that the defendant touched the victim’s intimate area with his private

parts under circumstances indicating sexual gratification. We note that the

statement given by the defendant, in which he denied culpable behavior,

nevertheless established that contact between his and the victim’s intimate parts

occurred. Ample and sufficient evidence existed for the jury’s finding the

defendant guilty as charged, beyond a reasonable doubt. Therefore, we find that

the trial court did not err by failing to instruct the jury on the lesser included

offenses. See Blanton, 926 S.W.2d at 960.



                                      Sentencing

       The defendant next argues that the trial court erroneously applied out-of-

state felony offenses to sentence him as a Range II offender. Range II

classification requires at least two, but not more than four, prior felony


                                           -5-
convictions that are either within the same conviction class, a higher felony class,

or the next two lower felony classes as the instant offense. See Tenn. Code

Ann. § 40-35-106(a)(1). The trial court may consider prior felony convictions,

including out of state convictions and convictions before November 1, 1989. See

Tenn. Code Ann. § 40-35-106(b)(2). The applicable statute qualifies use of out-

of-state convictions:

       Prior convictions include convictions under the laws of any other
       state, government, or country, which, if committed in this state,
       would have constituted an offense cognizable by the laws of this
       state. In the event that a felony from a jurisdiction other than
       Tennessee is not a named felony in this state, the elements of the
       offense shall be used by the Tennessee court to determine what
       classification the offense is given.

Tenn. Code Ann. § 40-35-106(b)(5). The elements of the out-of-state

convictions, as set forth in the governing jurisdiction’s statute, determine the

classification for the prior felony offense, see State v. Duffel, 631 S.W.2d 445

(Tenn. Crim. App. 1981), appealed after remand, 665 S.W.2d 402 (1983), and

the law at the time of the offense controls this determination, see State v.

Brooks, 968 S.W.2d 312, 313 (Tenn. Crim. App. 1997).



       The defendant has three Alabama convictions for burglary in the third

degree from 1980 and 1984. He also has one Alabama conviction for assault in

the second degree, a felony, in 1983. The defendant asserts that these

convictions equate to no higher than Class E felonies under Tenn. Code Ann. §

40-35-119: “[A]ny prior felony offense committed between July 1, 1982 and

November 1, 1989, which has not been classified pursuant to § 40-35-118 or

otherwise, is a Class E felony.” This Code section, however, refers to a prior

Code § 40-35-118, addressing Tennessee convictions.



       To properly classify these out-of-state convictions, we compare the

applicable Alabama statutes defining the offenses with corresponding

Tennessee statutes. We find the state’s analysis persuasive. Regarding the


                                         -6-
defendant’s Alabama burglary convictions, the particular Alabama statute2

states:

          A person commits the crime of burglary in the third degree if he
          knowingly enters or remains unlawfully in a building with the intent
          to commit a crime therein.

Ala. § 13A-7-7 (1977). “Building” refers to a non-dwelling building. Id., historical

notes. Tennessee’s comparable statute for the particular time periods read:

          Burglary in the third degree is the breaking and entering into a
          business house, outhouse, or any other house of another, other
          than a dwelling house, with the intent to commit a felony.

Tenn. Code Ann. §§ 39-904 (1955); 39-3-404 (1982).



          We note that these two statutes articulate the same elements: (1) Breach

or entry; (2) of a non-dwelling house; (3) with the intent to commit a crime. Thus,

we conclude that the Alabama offenses are analogous with those defined by

Tennessee Code Annotated § 40-35-118. Therefore, the defendant’s

convictions under this Alabama statute qualify as Class D felonies. Further, as a

Class D felony is within two classes of the instant offense, these convictions are

sufficient basis for Range II offender classification.



          As for defendant’s assault conviction, we first examine the pertinent

component of the Alabama statute:

          (a) A person commits the crime of assault in the second degree if
              the person does any of the following:
              (1) with intent to cause serious physical injury to another
                  person, he or she causes serious physical injury to any
                  person.
              (2) with intent to cause physical injury to another person, he or
                  she causes injury to any person by means of a deadly
                  weapon or a dangerous instrument.
              (3) he or she recklessly causes serious physical injury to
                  another person by means of a deadly weapon or a
                  dangerous instrument . . . .

Ala. Code § 13A-6-21 (1977). The corresponding statute in Tennessee in 1983

read:


          2
              This statute is apparently still the pertinent state law.

                                                      -7-
       (b) Any person who:
           (1) attempts to cause or causes serious bodily injury to another
               willfully, knowing, or recklessly under circumstances
               manifesting extreme indifference to the value of human life;
               or
           (2) attempts to cause willfully or knowingly causes bodily
               injury to another with a deadly weapon; or
           (3) assaults another while displaying a deadly weapon or while
               the victim knows such person has a deadly weapon in his
               possession . . . .


Tenn. Code Ann. § 39-2-101 (1982). W e conclude that the statutes are

congruent and, for the purposes of this comparison, share functionally equivalent

mens rea requirements. For culpability, the relevant sections of the Tennessee

statute require mental states of “willfully,” “knowingly,” or “recklessly.” In

comparison, the Alabama statute requires “intent.” Generally, Alabama’s

definition of “culpable” states stem from the Model Penal Code, Ala. Cod § 13-

A-2-2, historical notes, and Alabama law interprets “intent” as requiring a more

culpable mental state than “reckless.” Given that the Model Penal Code lists

only “purposefully” and “knowingly” as higher culpable mental states than

“reckless,” we may reasonably infer that “intent,” at a minimum, contemplates

“knowingly.” Therefore, we conclude that the offenses are comparable for

sentencing purposes. Therefore, the trial court did not err in considering this

offense, equivalent to a Class C felony in Tennessee at the time in question, for

enhancing the defendant’s range.



                                    Enhancement

       Next, the defendant argues that the trial court erred in enhancing his

sentence beyond the presumptive minimum. W hen a defendant challenges a

sentencing issue, our duty is to conduct a de novo review of the sentence with a

presumption that the determinations made by the trial court are correct. See

Tenn. Code Ann. 40-35-401(d). This presumption is “conditioned upon the

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

principles and all the relevant facts and circumstances.” State v. Ashby, 823


                                          -8-
S.W.2d 166, 169 (Tenn. 1991). Where the record indicates that the trial court

gave due consideration and proper weight to the factors and principles set under

the sentencing law, this court may not modify the sentence even if we would

have preferred a different result. See State v. Fletcher, 805 S.W.2d 785, 789

(Tenn. Crim. App. 1991).



       The trial court balanced enhancement factors involving the defendant’s

previous criminal history of felonious import of stolen goods into Tennessee and

a Tennessee shoplifting violation, see Tenn. Code Ann. § 40-35-114(1), and the

defendant’s use of his position of trust of the victim’s family, see Tenn. Code

Ann. § 40-35-114(15), against mitigating factors: The defendant’s criminal

conduct neither “caused nor threatened serious bodily injury,” Tenn. Code Ann.

§40-35-113(1), and the defendant cooperated to some degree by giving a

statement to the investigators, see Tenn. Code Ann. § 40-35-113(13). The trial

court determined that the enhancement factors outweighed the mitigating factors

and enhanced the sentence within the assigned range beyond the twelve-year

presumptive minimum, for a sentence of fifteen years. See Tenn. Code Ann. §

40-35-111(b)(2), -112(b)(2). We conclude that there was no error in this

enhancement.



                                 Release Eligibility

       We observe that the sentence imposed below indicates an incorrect

release eligibility. During the defendant’s sentencing hearing, the trial judge

twice noted that the defendant would be required to serve at least eighty-five

percent of his sentence. Nevertheless, the judgment sheet indicates a release

eligibility of thirty-five percent. An offender who commits aggravated sexual

battery on or after July 1, 1995, “shall serve one hundred percent (100%) of the

sentence imposed by the court less sentence credits earned and retained,”

Tenn. Code Ann. § 40-35-501(I)(1), (2)(H), and sentence reduction credits may


                                        -9-
not reduce the incarceration term by more than fifteen percent, see Tenn. Code

Ann. § 40-35-501(I)(1). Because the trial judge was aware of the correct release

eligibility, we need not remand for resentencing. Cf. State v. Delbert Lee Harris,

No. 01C01-9705-CC-00177 (Tenn. Crim. App. filed Sept. 30, 1998, at Nashville)

(concluding that remand for resentencing was appropriate when trial court erred

as to release eligibility because trial court’s imposition of sentence was

uninformed). We modify the sentence below to comport with the above cited

statute.



                                  CONCLUSION

       The trial court’s judgment of conviction is AFFIRMED. This cause is

remanded to the trial court for entry of a judgment consistent with this opinion.




                                     _____________________________
                                      JOHN EVERETT W ILLIAMS, Judge


CONCUR:




______________________________
JOHN H. PEAY, Judge




______________________________
DAVID G. HAYES, Judge




                                        -10-
