         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                        Assigned on Briefs February 2, 2016


              STATE OF TENNESSEE v. GEORGE COLEMAN

                 Appeal from the Criminal Court for Shelby County
                         No. 13-01966  Chris Craft, Judge




                No. W2015-00450-CCA-R3-CD - Filed May 27, 2016
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The defendant, George Coleman, was convicted of one count of aggravated sexual
battery, a Class B felony. The trial court imposed a ten-year sentence as a result of the
conviction. On appeal, the defendant argues that the evidence is insufficient to sustain
his conviction for aggravated sexual battery, that the trial court erred by allowing the
victim‟s brother to testify about why he followed the victim and the defendant to the
bathroom, and that the trial court erred in imposing a ten-year sentence. Following our
review of the record, the briefs of the parties, and the applicable law, we affirm the
judgment of the trial court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

JOHN EVERETT WILLIAMS, J., delivered the opinion of the Court, in which CAMILLE R.
MCMULLEN and TIMOTHY L. EASTER, JJ., joined.

Sean Muizers (at trial) and Michael E. Scholl (on appeal), Memphis, Tennessee, for the
appellant, George Coleman.

Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Cavett Ostner, Assistant
District Attorney General, for the appellee, State of Tennessee.


                                       OPINION
                             Facts and Procedural History

       This case arose after a Shelby County Grand Jury indicted the defendant for one
count of aggravated sexual battery. The defendant, a handyman, was sent to the home of
the victim‟s mother by her landlord in May of 2012 to remove wallpaper and paint the
bathroom. The victim, who was twelve years old at the time, lived at the home with her
mother and two siblings. After he started the work on the house, the defendant asked the
victim‟s mother if he could pay her son to help with cleanup. The victim‟s mother said
that her son was too busy. The defendant then asked if the victim could perform the
cleanup work for $50. The victim‟s mother agreed. The victim recalled that the
defendant worked on the bathroom for about two months. The defendant offered to pay
her to clean up after he finished his work. She generally waited until the defendant left
the house to clean the bathroom.

        On June 23, 2012, the defendant called the victim‟s mother to see if he could come
over to work on the house. When the defendant first came over around 8:00 a.m., the
victim‟s mother was not home. The victim was at the house with her older brother, her
younger sister, and a friend of her mother‟s. The victim let the defendant in the house,
and they worked on the bathrooms together. The victim would “knock the dust off the
walls, so that [the defendant] could smooth it down and he would be finished.” At one
point, they took a break, sat outside, and drank a Gatorade. The victim was talking on the
phone to her brother‟s friend. The friend was planning on coming over the house later on
that day. The victim testified that the defendant told her “something that made [her] very
uncomfortable.” The defendant told her:

      [H]e was going to rent the house across the street and add a garage on to it
      so that I come over there at night and he asked who was the dude that was
      in there for my brother. I told him that it was for my brother and he told me
      not to give his hugs away and he was just being weird with it, just saying,
      like, when he said don‟t give your hugs away and I was like, that is kind of
      weird, why would you say that.

Shortly thereafter, the victim‟s mother pulled up to the house. The defendant left
the house around 11:00 a.m. When he left, the victim told her brother and his
friend about the things the defendant said to her. The victim‟s brother testified
that the victim told him that the defendant made her feel uncomfortable. He
explained that he had a “vibe about him, because he was calling her Sweet Pea and
calling her just names.” She asked them to follow her into the bathroom when the
defendant returned that afternoon.


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        The victim testified that, the defendant returned to the house around 1:00 or
2:00 p.m. that afternoon. She was in her bedroom with her brother and his friend.
The victim let the defendant in the house. He said, “come on Sweet Pea” and
walked toward the back of the house to the bathroom. The victim‟s mother, who
was lying on the couch in the den, was not visible to the defendant. The victim
“put her hand behind her back to signal [her] brother to come with [her].” Her
brother followed her to the back bathroom near her mother‟s bedroom. All three
of them were standing outside the bathroom when the defendant told the victim
she left dust in the window of the bathroom. The victim walked in to the
bathroom, and the defendant “closed the door in [her] brother‟s face.” At that
point, the defendant “squeezed” the victim‟s breasts with both hands and “made a
grunting sound.” The victim opened the door, and the defendant “grabbed” her
hand. He placed money in her hand and hugged her and squeezed her breast. The
defendant also “started to squeeze” the victim‟s “butt with both of his hands” and
was making “grunting” noises. The victim went into the room with her brother
and his friend and told them what happened. They walked with her through the
house, and the victim told her mother when she thought the defendant was gone.
The victim‟s mother called the police. A few days later, the victim was taken to
the Children‟s Advocacy Center.

       At trial, the defendant testified that he remodeled houses for a living and was sent
to the victim‟s house by the landlord to work on the hall bathroom and the master
bathroom. He explained that, when he was stripping the wallpaper in the bathroom, he
was often interrupted by the “little baby” and puppy that lived at the house. The
defendant offered to pay one of the other children to help clean up the mess.

       The last day he was at the house working, the defendant had to touch up a few
places on the wall in the back bathroom. He was at the house for a short period of time
before he went outside to wash his tools. At this time, the victim‟s mother drove up to
the house. The victim was outside talking to the defendant. He gave the victim a
Gatorade. The defendant asked the mother who got the payment for the cleaning of the
bathrooms. The defendant stated that he gave the victim the money at that point and left.
He testified that he did not return to the house. Additionally, the defendant claimed that
the victim never actually helped him in the bathroom while he was working. The
defendant also denied touching, fondling, or putting his hands on the victim.

       The jury found the defendant guilty of aggravated sexual battery as stated in the
indictment. After a sentencing hearing, the trial court sentenced the defendant to ten
years in incarceration. The defendant filed a motion for new trial, which the trial court
denied. He filed a timely notice of appeal, and we will now consider his claims.

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                                          Analysis
                               I. Sufficiency of the Evidence

       The defendant argues that the evidence was insufficient to support the conviction
for aggravated sexual battery. He insists that there are serious “credibility concerns” with
the victim‟s testimony at trial because her testimony was inconsistent. Additionally, he
argues that there is no evidence to support the victim‟s “story.”

        When the sufficiency of the evidence is challenged, the relevant question is
whether, after reviewing the evidence in the light most favorable to the State, any rational
trier of fact could have found the essential elements of the crime beyond a reasonable
doubt. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011); see also Jackson v.
Virginia, 443 U.S. 307, 319 (1979). “[O]n appeal, the State must be afforded the
strongest legitimate view of the evidence and all reasonable inferences that may be drawn
therefrom.” Dorantes, 331 S.W.3d at 379 (internal quotation omitted). It is the trier of
fact who resolves all questions of witness credibility, the weight and value of the
evidence, as well as all factual issues raised by the evidence. State v. Pappas, 754
S.W.2d 620, 623 (Tenn. Crim. App. 1987). Reviewing courts should neither re-weigh the
evidence nor substitute their own inferences for those drawn by the jury. State v. Evans,
108 S.W.3d 231, 236 (Tenn. 2003).

       The trial court‟s approval of the jury‟s verdict accredits the State‟s witnesses and
resolves all conflicts in the evidence in the State‟s favor. State v. Moats, 906 S.W.2d
431, 433-34 (Tenn. 1995). “Because a guilty verdict removes the presumption of
innocence and replaces it with a presumption of guilt, on appeal a defendant bears the
burden of showing why the evidence is insufficient to support the conviction.” State v.
Thacker, 164 S.W.3d 208, 221 (Tenn. 2005). These rules apply whether the verdict is
predicated upon direct evidence, circumstantial evidence, or a combination of both.
Dorantes, 331 S.W.3d at 379. In weighing the sufficiency of the evidence, circumstantial
and direct evidence are treated the same, and the State is not required to exclude every
reasonable hypothesis other than that of guilt. Id. at 381.

       Aggravated sexual battery is unlawful sexual contact with a victim by the
defendant where the victim is less than thirteen years of age. T.C.A. § 39-13-504(a)(4).
“Sexual contact” is defined as including “the intentional touching of the victim‟s . . .
intimate parts, or the intentional touching of the clothing covering the immediate area of
the victim‟s . . . intimate parts, if that intentional touching can be reasonably construed as
being for the purpose of sexual arousal or gratification.” Id. § 39-13-501(6). “„Intimate
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parts‟ includes the primary genital area, groin, inner thigh, buttock or breast of a human
being.” Id. § 39-13-501(2).

       Viewing the evidence in a light most favorable to the State, the victim‟s testimony
established that the defendant was alone with the twelve-year-old victim in the bathroom
where he used both hands to squeeze her breasts, hugged her, grabbed her buttocks, and
made a “grunting sound.” The defendant denied the accusations and, on appeal,
challenges the credibility of the victim and her brother. However, the credibility of the
witnesses was a question for the jury. There was sufficient evidence from which a trier
of fact could find that the defendant had unlawful sexual contact with the victim where
the victim was less than thirteen years of age. No corroboration of the victim‟s testimony
is required. State v. Collier, 411 S.W.3d 886, 889-90 (Tenn. 2013). We conclude that
the defendant is not entitled to any relief.

                           II. Testimony of the Victim’s Brother

       The defendant next argues that the trial court committed plain error by allowing
the victim‟s brother to testify that he followed the victim and the defendant to the
bathroom because the victim told him that the defendant made her uncomfortable.
Specifically, the defendant insists that the testimony was both irrelevant and prejudicial.

        As the State correctly points out, the defendant did not make any
contemporaneous objections during the testimony, and he did not raise this issue in his
motion for new trial. Normally, the failure to lodge a contemporaneous objection at trial
results in a waiver on appeal of the issue of improper testimony. See Tenn. R. App. P.
36(a). However, an error which has affected a substantial right of a defendant may be
noticed at any time in the discretion of the appellate court where necessary to do justice.
State v. Taylor, 992 S.W.2d 941, 944 (Tenn. 1999). “Plain error,” or “fundamental
error,” is recognized under Tennessee Rule of Appellate Procedure 36(b). In order to
determine whether an error rose to the level of “plain error,” this court must consider five
factors: “„(a) the record must clearly establish what occurred in the trial court; (b) a clear
and unequivocal rule of law must have been breached; (c) a substantial right of the
accused must have been adversely affected; (d) the accused did not waive the issue for
tactical reasons; and (e) consideration of the error is „necessary to do substantial justice.‟”
State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d
626, 641-42 (Tenn. Crim. App. 1994)). Complete consideration of all five factors is
unnecessary if at least one is absent. Id. at 283. Furthermore, the plain error must be
such that it probably changed the outcome of the trial. Adkisson, 899 S.W.2d at 642.

        In this case, the defendant has failed to show that he did not waive the issue for
tactical reasons. Moreover, the defendant has failed to establish that any clear and
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unequivocal rule of law was broken. He argues that it was error for the victim‟s brother
to testify that he followed the defendant and the victim toward the bathroom after the
victim told him that the defendant gave her a strange “vibe” because the testimony was
not relevant. We disagree. Although potentially prejudicial, the testimony was clearly
relevant to explain the circumstances surrounding the offense. It was offered to show
that the defendant and the victim were alone together in the bathroom and that the
victim‟s brother followed them to the bathroom before the defendant shut the door.
Because he has failed to show all five factors necessary for plain error review, the
defendant is not entitled to relief.

                                      III. Sentencing

       Lastly, the defendant challenges his sentence. Specifically, he argues that the trial
court erred by failing to sentence him to the minimum in the range for the conviction and
enhancing his sentence for previous criminal convictions and violating a position of trust.
Additionally, he complains that the trial court failed to mitigate his sentence because his
conduct neither caused nor threatened serious bodily injury.

       This court reviews challenges to the length of a sentence under an abuse of
discretion standard, “granting a presumption of reasonableness to within-range
sentencing decisions that reflect a proper application of the purposes and principles of our
Sentencing Act.” State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). The court will
uphold the sentence “so long as it is within the appropriate range and the record
demonstrates that the sentence is otherwise in compliance with the purposes and
principles listed by statute.” Id. at 709-10. The weighing of various enhancement and
mitigating factors is within the sound discretion of the trial court. State v. Carter, 254
S.W.3d 335, 345 (Tenn. 2008). The misapplication of an enhancement or mitigating
factor by the trial court “does not invalidate the sentence imposed unless the trial court
wholly departed from the 1989 Act, as amended in 2005.” Bise, 380 S.W.3d at 706. A
sentence imposed by the trial court that is within the appropriate range should be upheld
“[s]o long as there are other reasons consistent with the purposes and principles of
sentencing, as provided by statute.” Id.

       After the trial court establishes the appropriate range of the sentence, the court
must consider the following factors to determine the specific length of the sentence: (1)
the evidence, if any, received at trial and at the sentencing hearing; (2) the presentence
report; (3) the principles of sentencing and arguments as to sentencing alternatives; (4)
the nature and characteristics of the criminal conduct involved; (5) evidence and
information offered by the parties on the applicable enhancement and mitigating factors;
(6) any statistical information provided by the administrative office of the courts as to
sentencing practices for similar offenses in Tennessee; and (7) any statement the
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defendant wishes to make in his own behalf about sentencing. T.C.A. § 40-35-210(a),
(b)(1)-(7).

        The defendant was sentenced as a Range I, standard offender to a sentence of ten
years. Aggravated sexual battery is a class B felony. T.C.A. § 39-13-504(b). As a
Range I offender, the sentencing range for a class B felony is eight to twelve years.
T.C.A. § 40-35-112(a)(2). The defendant contends that the trial court incorrectly applied
enhancement factor one , “[t]he defendant has a previous history of criminal convictions
or criminal behavior, in addition to those necessary to establish the appropriate range,”
because there was no proof that he had any prior felonies. T.C.A. 40-35-115(1). The
presentence report indicates that the defendant had at least seven prior misdemeanors,
including multiple convictions for driving on a suspended, cancelled, or revoked license.
There is no requirement in the statute that the previous criminal convictions must be
felonies. Defendant also argues that enhancement factor fourteen, “[t]he defendant
abused a position of public or private trust, or used a professional license in a manner that
significantly facilitated the commission or the fulfillment of the offense,” was improperly
applied because he was not in a position of private trust. T.C.A. § 40-35-115(14). We
acknowledge that relationships of private trust can exist between employer and employee,
see State v. Grissom, 956 S.W.2d 514, 518 (Tenn. Crim. App. 1997), and the defendant in
this case was employed by the landlord to perform maintenance work on the house that
the victim‟s mother rented. Additionally, the defendant was paying the victim to help
clean up while he worked. However, even if the trial court misapplied this enhancement
factor, or failed to consider a mitigating factor, it does not invalidate the defendant‟s
within-range sentence. See Bise, 380 S.W.3d at 706; Carter, 254 S.W.3d at 345. The
trial court properly considered at least one other enhancement factor, and the record
supports the findings of the trial court. We conclude that the trial court did not abuse its
discretion in imposing a sentence in the middle of the range for his conviction.

                                        Conclusion

       Based on the foregoing, the judgment of the trial court is affirmed.



                                                  _________________________________
                                                  JOHN EVERETT WILLIAMS, JUDGE




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