                                                                                          05/04/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                          Assigned on Briefs March 28, 2018

     STATE OF TENNESSEE v. MAINOR CELIN AVILEZ CANALES

                  Appeal from the Circuit Court for Sevier County
                  No. 19414-II      Walter C Kurtz, Senior Judge
                      ___________________________________

                           No. E2017-01222-CCA-R3-CD
                       ___________________________________


The Defendant, Mainor Celin Avilez Canales, was convicted after a jury trial of
aggravated sexual battery and sentenced to serve twelve years in prison. The Defendant
appeals, contending that the jury instructions did not adequately specify the mens rea of
the offense and that the trial court improperly enhanced the sentence. After a thorough
review of the record, we affirm the judgment of the trial court.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which ROBERT L.
HOLLOWAY, JR., and J. ROSS DYER, JJ., joined.

William Lee Wheatley, Sevierville, Tennessee, for the appellant, Mainor Avilez Canales.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel;
Jimmy B. Dunn, District Attorney General; and Ronald C. Newcomb, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                        OPINION

                     FACTUAL AND PROCEDURAL HISTORY

       The Defendant was charged with aggravated rape after he was seen carrying the
semi-conscious and beaten victim across the parking lot of a bar. The victim, who was
severely intoxicated at the time she was assaulted, could not recall the particulars of the
assault. At trial, the Defendant asserted that he did not have intercourse with her and that
her injuries were the result of a fall.
       The victim and her friend, Ms. Angelica Buckner, met each other for drinks at a
bar shortly after 9:00 p.m. on January 31, 2014. The victim testified that the Defendant
and his friend approached her and Ms. Buckner at the bar. The Defendant was speaking
English, and the victim could generally understand him. She had trouble with “[v]ery
few” words that he spoke. The victim testified that the Defendant attempted to dance
with her but that she did not want to dance. Instead, the Defendant danced behind her as
she was trying to get her friend to dance in the bar area. The victim testified that the
Defendant attempted to put his hands on her bare hips under her clothing, and she
removed his hands but allowed him to dance with his hands on her hips outside her
clothing. The victim stated that she did not hug or kiss the Defendant at any time.

       The victim drank five and one-half drinks: she had two mixed drinks with Ms.
Buckner when she first arrived, drank a shot that the Defendant’s friend bought her,
drank two shots which the Defendant had bought for herself and Ms. Buckner, and drank
half of Ms. Buckner’s mixed drink. She recalled speaking with the bouncer at the bar,
who offered to remove the Defendant, and she testified that she told the bouncer that “he
wasn’t bothering us at the time.” The victim went outside to smoke a cigarette on the
front patio area of the bar, and the Defendant followed her.

       The victim testified that when she went outside to smoke, she and the Defendant
were the only two people outside, and the Defendant was touching her and “kept …
trying to get me to have sex with him.” The victim testified that she grew frustrated and
replied, “No, because you’re nothing more than a dirty f***ing Mexican.” She stated
that she assumed the Defendant would leave her alone and she turned to continue
smoking her cigarette. She next remembered “spitting out the cherry on my cigarette
because it had got knocked into my mouth partially.” The victim testified that she had
two burns on her lip, and she was “not 100% sure if he actually hit me or hit me with
something.” The victim recalled begging the Defendant to leave her alone, apologizing,
and offering to pay him for the drinks. She next remembered lying on her back with the
Defendant above her and could recall nothing further regarding the assault.

        The victim acknowledged that in all of her prior statements and in her testimony at
the preliminary hearing, she had stated that she remembered nothing between going
outside to smoke and waking up in a hospital. The victim explained that she had tried
very hard to remember the assault and had spoken with some of the witnesses from the
bar to that end. In May or June 2014, she recalled the additional snippets to which she
had testified. She still could not recall any further information. She did not inform the
prosecution or anyone else about the information she had recalled until the day before
trial because she did not think it would be useful until trial. The victim stated that she did
not unzip or unbutton her pants, did not pull up her shirt, and did not consent to have

                                            -2-
intercourse with the Defendant. She acknowledged having a boyfriend but asserted that
she was not fabricating an assault to protect that relationship.

       Ms. Buckner agreed that the Defendant and his friend approached the victim and
Ms. Buckner “periodically” at the bar. The victim was wearing jeans, a blouse, and flip-
flops. Ms. Buckner consumed one beer, one-half of a “gross” mixed drink, and one to
two shots. She testified that the Defendant was “handsy” with her and with the victim
and that Ms. Buckner repeatedly told him to leave them alone. Ms. Buckner testified that
she became frustrated and used “inappropriate language” to make the Defendant leave.
Ms. Buckner told the Defendant, “We do not f*** Mexicans.” The Defendant replied
that he was from Colombia. She acknowledged that she spoke with the bouncer at the
bar and that while she did mention that the men would not leave them alone, she did not
say she felt uncomfortable. She explained that she believed she had made it clear to the
men that they should not bother her anymore. After Ms. Buckner made her comment, the
Defendant and his friend left the women alone. The victim went outside to smoke a short
time later.

        Mr. Jesse Parker was working as a bouncer at the bar and recognized the
Defendant, who was a regular customer. Mr. Parker noticed the Defendant speaking with
the victim and Ms. Buckner, and Mr. Parker checked on the victim and Ms. Buckner
while the Defendant was gone to make sure that they were not uncomfortable with his
attention. He testified that he witnessed the victim kiss the Defendant and saw some
“pretty strong hugging” between the women and the Defendant.

       There were no witnesses to testify regarding exactly how the victim sustained her
injuries. However, numerous witnesses who were outside near a back kitchen entrance to
the bar saw the Defendant with the injured and incoherent victim shortly after 11:00 p.m.

       Mr. Raymond Stupplebeen was outside the kitchen entrance when he saw the
Defendant and victim behind the restaurant1 next door, “circling each other.” He testified
that it looked like they were dancing but that “something wasn’t right. The body
language wasn’t right.” He elaborated that part of what raised a “red flag” was that he
did not know where the victim and the Defendant had come from despite the fact that he
was smoking his second or third cigarette when he noticed them. He saw the victim fall
on her behind, and the Defendant stood over her for a minute and “went down to almost
get her,” at which point “her arms kind of went up.” He pointed out to the others that he
felt something was wrong, but no one addressed the matter until a few minutes later,
when the Defendant picked up the victim “in a bear hug position with her arms and her

        1
          Witnesses referred to the business next to the bar as either a Mexican restaurant or a Mexican
grocery store.
                                                 -3-
legs kind of dangling down,” her feet limp, and her face hidden. The victim’s pants were
pulled down slightly, exposing her lower back and upper buttocks.

       The Defendant carried the victim in one direction until he saw the people gathered
near the kitchen entrance, at which point he changed his direction toward the parking lot.
Mr. Stupplebeen approached the Defendant and circled him a few times, trying to see the
victim’s face. He felt that the Defendant’s movements were calculated to hide the
victim’s face. When the others who were outside shouted for the Defendant to let the
victim go, he dropped her to the ground “hard,” and Mr. Stupplebeen could see “road
burns or beat marks” on her face. The victim was missing a shoe. She was unable to
move and was propped against a car by bystanders. Mr. Stupplebeen did not recall the
victim reaching for him. He tried to stop the Defendant from leaving and called 911
while following the Defendant, who entered the bar. Because the music was loud in the
bar and Mr. Stupplebeen would not have been able to hear the 911 operator, he did not
follow the Defendant into the bar, although he requested others to do so.

         Mr. Dakota Johnson was employed at the bar and worked as a bar-back. He
recognized the Defendant as a prior patron of the bar and saw him at the bar on January
31, 2014. Mr. Johnson was smoking a cigarette behind the bar, and he saw the Defendant
and victim behind the air conditioning unit of the restaurant next door. Mr. Johnson
stated that “it looked like he had her pinned up against the wall, and she was kind of
trying to get away from him.” The Defendant then “picked her up over his shoulder and
started carrying her through the parking lot and up through the parking lot of the bar
where we were all standing at.” The victim appeared to be crying. When Mr. Johnson
and another man confronted the Defendant, he dropped her on the ground. The
Defendant explained the victim’s injuries by stating she had fallen, but Mr. Johnson
testified he was familiar with injuries from a fall to concrete and “that’s not what
happened.” Mr. Johnson elaborated that the victim’s “face was – it was bad. She didn’t
fall.” The Defendant recognized Mr. Johnson and said, “My friend. My friend,” with his
hands up. Mr. Johnson and others tried to ask the Defendant to stay, but he left. The
victim “was clothed,” and the Defendant was able to communicate in English with “[a]
little bit” of trouble.

       Mr. Dylan Owens, the kitchen manager at the bar, also witnessed the Defendant
carry the victim across the parking lot. He testified that he had previously seen the victim
and the Defendant in a quiet area of the bar, that he saw the victim dancing but not
romantically or with the Defendant, and that he did not see the victim hug or kiss the
Defendant. He testified that Mr. Stupplebeen was the first to see that something was
“awry.” Mr. Owens was outside a total of thirty to forty-five minutes and heard a
“shuffling” and possible raised voices but could not clearly distinguish the sound. When
he saw the victim and the Defendant, she appeared intoxicated and could barely walk.
                                           -4-
Mr. Owens stated that it appeared that the victim was not just drunk but “like there was
something else.” He elaborated that he had seen the victim in the bar shortly before and
that because she “didn’t seem to be in the same state as she was afterwards,” he suspected
she may have been drugged. Mr. Owens said that the Defendant “more or less had her
body and was just kind[ of] dragging her,” and that the victim gave “the impression she
was maybe lifeless.” At one point, the victim fell, and the Defendant picked her back up.
The victim was missing one shoe, her pants were not fastened, and she had debris in her
hair and gravel on her arms. He observed that she appeared to be “beaten up,” and had
sustained red marks, scratches, and bruises. He stated that as the Defendant approached,
the victim “reached her arms” toward Mr. Stupplebeen. The Defendant told the people
outside the bar that he was looking for the victim’s friend or sister, and he went into the
bar. Mr. Owens acknowledged having made a previous statement that the victim and the
Defendant “looked like a couple.”

        Ms. Rebecca Kirby worked in the kitchen of the bar and got off of work at around
11:00 p.m. She went into the bar area to have a drink and observed the victim and the
Defendant dancing “kind of close” but did not see them hug or kiss. Ms. Kirby went out
to the back of the bar, and she later saw the Defendant and victim behind the restaurant
next door. She stated that they were facing each other and “looked like they were making
out.” Ms. Kirby testified that the victim fell three or four times and that she “would hold
her arms up, and he would pick her back up.” The Defendant began to carry the victim
toward the parking lot in an unusual manner. Ms. Kirby described him as holding the
victim as though he were “burping a baby,” elaborating that “[i]t wasn’t quite caveman
type, but he had her right there.” The victim was “deadweight.” Ms. Kirby stated the
Defendant was trying to hide the victim’s face, and when Mr. Stupplebeen approached,
the victim held her arms out to Mr. Stupplebeen and to Ms. Kirby “almost like a ‘help
me’ kind of thing.” The Defendant told them that “he didn’t do anything.” Ms. Kirby
observed that the victim’s face was “messed up,” her clothes were “askew,” she had no
shoes or jacket, her pants were undone and around her hips, and her shirt was unbuttoned
and “a little bit” askew. The victim asked for Ms. Buckner. Ms. Kirby estimated that
fifteen to twenty minutes elapsed between the time she went outside and the time police
were called.

      Ms. Buckner testified that when she went to look for the victim, the victim had
been found behind the bar. Her face was swollen, bruised, and cut up, and she was
missing a sandal. The victim was “conscious but not aware” and was asking for Ms.
Buckner.

       Mr. Parker was outside on the patio around the time the victim was discovered,
and he saw the Defendant come from behind the building. Mr. Parker testified that as the
Defendant passed him, “he patted me on the shoulder and winked at me. I thought it was
                                           -5-
very odd.” He turned around, and despite the fact that he could command a wide view of
his surroundings, he did not see the Defendant, concluding, “So he – he was gone pretty
fast.” At that point, he heard his name called from behind the building. The victim was
propped against a vehicle, “visibly beaten” and partially undressed. Her pants were
unbuttoned and pulled down slightly, her shirt was over her shoulder, exposing her bra,
and she was bleeding. The victim was hysterical.

        Mr. Bradley Holt, a paramedic, arrived to find the victim unresponsive, with a
“pumpknot” on the right side of her face, other abrasions and lacerations on her face, a
bruised torso, the onset of bruising in her upper extremities, and blood coming from both
nostrils. The victim’s shirt was rolled up, her pants were unbuttoned and unzipped but
around her waist, and she was not wearing shoes. The victim did not respond to speech,
touch, or painful stimulation. She remained unresponsive as she was transported in
“emergency status,” but toward the end of the trip she was able to mouth her name and
curl into a fetal position in response to a question asking if she were in pain. Mr. Holt
testified that he would have intubated her but was unable to do so because he did not
have the appropriate paralytic medication. He opined that her injuries were inconsistent
with a ground-level fall. Ms. Cecilia Miller, who was also a paramedic and was driving
the ambulance, agreed that the right side of the victim’s face was swollen, scraped, and
bloody. The victim was sobbing and could not speak. Ms. Miller confirmed that the
victim’s shirt was up and that her pants were unbuttoned and unzipped but not pulled
down. She would have recommended the use of a helicopter to transport the victim if
one had been flying that night. She confirmed that the injuries were inconsistent with a
fall. Officer Dan Wilder escorted the victim and the ambulance to the hospital “under
emergency traffic,” with his sirens and lights on. Officer Terry Bryant located the
victim’s shoe behind the restaurant.

        Ms. Misty Stamm, a sexual assault nurse examiner, identified a diagram she made
of the victim’s injuries. The victim had multiple abrasions on her face, swelling,
redness, injuries on her right knee, left foot, left shoulder, leg, left elbow, coccyx, and left
forearm. Ms. Stamm also found two tears on the victim’s labia minora with a small
amount of active bleeding. She testified that she had “only seen that sort of injury
consistent with a sexual assault,” “[l]ikely penetration,” but she acknowledged that the
tears “[p]ossibly” could have resulted from a consensual sexual act. She also stated that
although the victim had a catheter, she had never seen a catheter cause labial tears. She
testified that the motive behind rape is often control and domination. The victim told Ms.
Stamm that she went to a bar, that a man bought her a shot, that she did not leave the
drink alone, and that going outside to smoke was the last thing she recalled.

      The victim testified that when she woke up in the hospital, she was in a neck brace
and her whole body hurt. She testified in particular that she felt interior and exterior
                                             -6-
vaginal pain and that she had trouble urinating for two to three days due to the pain. She
did not have any pain or injuries prior to the night of January 31, 2014. She also testified
that she had previously had a catheter during the birth of her child and that she had
suffered no side effects or burning during urination from the catheter.

       Detective Kevin Bush testified that the emergency call came in at 11:36 p.m. and
he went to the hospital to collect evidence. The victim had a blood alcohol level of .21 at
2:04 a.m. He was unable to speak with the victim, who was intubated, but spoke with her
the following day. He agreed that the victim had stated that she did not recall anything
after going outside to smoke. Detective Bush also agreed that intoxication can affect
coordination and that there was some snow on the ground on the night of the assault,
making walking treacherous.

        The Defendant was not apprehended on the night of the assault, but Officer Wilder
left a request for the bar employees to contact him if they saw the Defendant again. On
February 20, 2014, Mr. Parker recognized the Defendant at the bar. Mr. Parker stated
that the Defendant appeared to be “looking at me trying to see if I recognized him, so I
acted like I didn’t.” He contacted Officer Wilder, who took the Defendant into custody.
Officer Wilder testified that the Defendant told him that he had taken the victim to the
restaurant in order to have sexual intercourse and that she fell on the way back.

       Detective Bush interviewed the Defendant on February 20, 2014, after the
Defendant was advised of his rights in English and Spanish. Detective Bush asked the
Defendant if he had been to the bar before, and the Defendant said, “Oh, it’s about this
girl.” The Defendant acknowledged buying the victim a drink and denied putting
anything into it. He admitted that he followed her onto the patio, where she intended to
smoke. He acknowledged crossing to the restaurant with her and unzipping her pants, but
he denied having intercourse with her.

       The Defendant gave a DNA sample, and Detective Bush had the sample compared
with the physical evidence he had collected from the hospital, including a sexual assault
kit and the victim’s clothing. No semen was recovered from the evidence. Detective
Bush testified that perspiration, urination, washing, and use of a condom can affect the
probability of recovering DNA evidence. The victim was able to identify the Defendant
from a photographic lineup.

        The Defendant presented the testimony of Ms. Tracy Sisto, a licensed registered
nurse, to provide an alternate explanation for some of the victim’s injuries. Ms. Sisto,
who did not testify as an expert and had not practiced nursing since 2001, testified that
catheterization can have adverse effects including bladder puncture and irritation.
Irritation would cause burning and pain.
                                           -7-
       The Defendant, testifying through an interpreter, stated that he bought the victim a
drink at the bar and that she danced with him, hugged him, and kissed him. The victim
went outside to smoke, and he also went outside. The Defendant testified that the victim
asked him to have sex three times. They went outside with the intention of having sex.
The victim jumped over the three-foot high railing surrounding the patio area, and the
two went looking for her car. The Defendant testified that because the victim was
confused about the location of her car, they ended up at the restaurant. He left the victim
by some crates for a few minutes while he walked a few feet away to look at his
telephone.

        According to the Defendant, the victim walked toward him, tripped, and fell onto
the concrete, hitting her face. He asked if she could walk and she said yes, but when he
let her go, she fell on her behind multiple times. She raised her arms, and he picked her
up and put her on his shoulder. The Defendant stated he walked toward the group behind
the bar to see if they could take her to the hospital and find her friend. Because they
appeared angry, he fled. He testified that he was afraid to remain because he was an
undocumented immigrant. The Defendant denied hitting or pushing the victim or having
intercourse with her. He elaborated that they had intended to have intercourse but that
those intentions were derailed when she fell. The Defendant likewise denied unzipping
her pants and speculated that her pants were lowered when he carried her. The Defendant
stated that accepting a drink “could be” consent to sexual intercourse.

        The jury convicted the Defendant of the lesser included offense of aggravated
sexual battery. At sentencing, the State argued for the application of numerous
enhancement factors and asked for the maximum twelve-year sentence in the range based
on the brutality of the attack. The defense noted that the Defendant’s prior criminal
record consisted only of minor offenses and argued that many of the enhancement factors
were elements of the crime. The trial court found that the proof at trial would have been
sufficient to uphold a conviction on the charged offense of aggravated rape, noting that
the victim’s internal injuries showed penetration. The trial court further noted that the
attack was brutal, that the victim was barely conscious, and that medical personnel felt
her injuries might be life-threatening. The trial court found that the victim was struck,
was rendered nearly unconscious, and was dumped on the ground and left. Accordingly,
the trial court applied as enhancement that the Defendant had no hesitation about
committing a crime in which the risk to human life was high. See T.C.A. § 40-35-
114(10). The trial court further found that although the Defendant had no prior felonies,
he had committed numerous other offenses and had not been a “good citizen” during his
tenure in this country. The trial court found that the victim’s ability to resist was
impaired due to alcohol usage, but the court did not enhance the sentence based on
particular vulnerability due to age or physical or mental disability. See T.C.A. § 40-35-
                                           -8-
114(4); State v. Buckmeier, 902 S.W.2d 418, 423-24 (Tenn. Crim. App. 1995)
(concluding that enhancement factor (4) was properly applied when the victim was
sexually assaulted while intoxicated). It further found that the other three factors argued
by the State, that the victim was treated with cruelty, that she suffered particularly great
personal injury, and that the crime was committed to gratify the Defendant’s desire for
pleasure or excitement, were elements of the offense. See T.C.A. § 40-35-114(5), (6),
(7). The trial court, describing the offense as “egregious,” sentenced the Defendant to the
maximum within the range of twelve years in prison.

       The Defendant moved for a new trial, arguing that the trial court erred in limiting
cross-examination, that there was no evidence of sexual contact, and that the sentence
was improper. The trial judge was unable to preside, and a successor judge, finding that
he was competent to sit as thirteenth juror under State v. Ellis, 453 S.W.3d 889, 907-08
(Tenn. 2015), denied the motion. The Defendant appeals, arguing that the jury
instructions incorrectly stated the mens rea for the crime and that the trial court erred in
enhancing the Defendant’s sentence.

                                             ANALYSIS

                                        I. Jury Instructions

       The Defendant argues that the jury instructions did not clarify that the jury had to
find that the Defendant’s touching was intentional.2 The State responds that the issue is
waived for failure to raise it in the motion for a new trial.

       Under Tennessee Rule of Criminal Procedure 30(b), a party’s failure to object to a
jury instruction “does not prejudice the right of a party to assign the basis of the objection
as error in a motion for a new trial.” However, we agree that the Defendant waived this
issue by failing to raise the issue in the motion for a new trial. See Tenn. R. App. P. 3(e)
(“Provided, however, that in all cases tried by a jury, no issue presented for review shall
be predicated upon error in the admission or exclusion of evidence, jury instructions
granted or refused, misconduct of jurors, parties or counsel, or other action committed or
occurring during the trial of the case, or other ground upon which a new trial is sought,


        2
           The Defendant highlights the prosecutor’s closing argument that the attack was in response to
the victim’s racist remarks and was for the purpose of control and domination rather than sexual
gratification, based on Ms. Stamm’s testimony. We do not interpret these two sentences in the brief as a
challenge to the sufficiency of the evidence, and we note that other evidence, including the Defendant’s
statements to police and interactions with the victim in the bar, could have supported the jury’s
conclusion that the Defendant had sexual contact with the victim and that the contact was for the purpose
of sexual arousal or gratification.
                                                  -9-
unless the same was specifically stated in a motion for a new trial; otherwise such issues
will be treated as waived.”).

        The State further contends that the Defendant is not entitled to plain error relief.
For an error to constitute plain error sufficient to merit relief, the following factors must
be present: (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. Bishop, 431 S.W.3d 22, 44 (Tenn. 2014) (citing State v. Adkisson, 899 S.W.2d
626, 641-42 (Tenn. Crim. App. 1994)). Additionally, “‘the plain error must be of such a
great magnitude that it probably changed the outcome’” of the proceeding. Id. at 44
(quoting Adkisson, 899 S.W.2d at 642). This court need not consider all the factors if it is
clear that the defendant will fail to establish at least one. State v. Jordan, 325 S.W.3d 1,
58 (Tenn. 2010). We conclude that the Defendant has not shown that his substantial
rights were adversely affected.

       A defendant has a right to a correct and complete jury charge. State v. Garrison,
40 S.W.3d 426, 432 (Tenn. 2000). This right is constitutional in nature. State v. Phipps,
883 S.W.2d 138, 142 (Tenn. Crim. App. 1994). The trial court must present the
propositions of law governing the case plainly to the jury, so that the jury is able to
comprehend the principles involved. State v. Williamson, 919 S.W.2d 69, 80 (Tenn.
Crim. App. 1995). A jury charge should contain no statement which is inaccurate,
inapplicable, or which might tend to confuse the jury. State v. Hatcher, 310 S.W.3d 788,
812 (Tenn. 2010). “Whether jury instructions are sufficient is a question of law appellate
courts review de novo with no presumption of correctness.” State v. Clark, 452 S.W.3d
268, 295 (Tenn. 2014). Jury instructions must be reviewed in their entirety, and no
phrase is examined in isolation. State v. Rimmer, 250 S.W.3d 12, 31 (Tenn. 2008). A
jury instruction which misstates an element of an offense so as to lessen the State’s
burden of proof amounts to constitutional error. State v. Page, 81 S.W.3d 781, 789
(Tenn. Crim. App. 2002). The failure to properly instruct on the mens rea required for an
offense is a nonstructural constitutional error which merits reversal unless the State
demonstrates the error was harmless beyond a reasonable doubt. Clark, 452 S.W.3d at
295.

       To convict the Defendant of aggravated sexual battery as charged, the State had to
demonstrate that the Defendant had unlawful sexual contact with the victim and caused
the victim bodily injury. T.C.A. § 39-13-504(a)(2). Sexual contact “includes 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

                                           - 10 -
touching can be reasonably construed as being for the purpose of sexual arousal or
gratification.” T.C.A. § 39-13-501(6).

       The jury instruction on aggravated sexual battery in this case consisted of the
following:

              For you to find the defendant guilty of this offense, the state must
       have proven beyond a reasonable doubt the existence of the following
       essential elements:

              (1) That the Defendant had intentional unlawful sexual contact with
                  the alleged victim in which the Defendant intentionally touched
                  the alleged victim’s intimate parts or the clothing covering the
                  immediate area of the alleged victim’s intimate parts; that the
                  alleged victim had -- or that the alleged victim had intentional
                  unlawful sexual contact with the Defendant in which the victim
                  intentionally touched the Defendant’s or any other person’s
                  intimate parts or the clothing covering the immediate area of the
                  Defendant’s or any other person’s intimate parts; and

              (2) That the Defendant caused bodily injury to the alleged victim;
                  and

              (3) That the Defendant acted intentionally, knowingly or recklessly.

              “Sexual contact” means the intentional touching of the alleged
                 victim’s, the defendant’s, or any other person’s intimate parts, or
                 the intentional touching of the clothing covering the immediate
                 area of the alleged victim’s, the defendant’s, or any other
                 person’s intimate parts, if that intentional touching can be
                 reasonably construed as being for the purpose of sexual arousal
                 or gratification.

        The Defendant relies on State v. Clark for the proposition that these instructions
merit reversal. 452 S.W.3d at 298. In Clark, the jury was instructed that it must find
unlawful sexual contact in which the defendant “intentionally touched” the victim, but, as
in this case, was also instructed that it must find the defendant “acted either intentionally,
knowingly or recklessly.” Id. The Court observed that the act of touching required a
finding of an intentional mens rea, while the remaining elements could be satisfied with
the lesser mens rea of knowledge or recklessness. Id. The Tennessee Supreme Court
characterized the accuracy of this instruction, which is similar to the instruction in the
                                            - 11 -
case at bar, as a “close call” and “encourage[d] future courts” to clarify that recklessness
would not be sufficient for the mens rea element regarding the act of touching. Id. at
298-99. The Court elaborated that the instructions contained an ambiguity because the
jury could apply the mens rea of “intentional” to the touching element, or it could
conclude that a mens rea of “recklessness” would suffice. Id. at 298. The Court noted
that the jury “would likely” apply the mens rea of “intentionally” to the element of
touching because of the proximity of the two terms. Id. However, the Court refused to
determine if the instructions were in error because it found any error would be harmless
beyond a reasonable doubt. Id. at 299. The Supreme Court again pretermitted the issue
of whether a similar instruction was in error in State v. Frausto, instead ordering that “the
jury instructions at the new trial shall conform to this Court’s decision in Clark.” State v.
Frausto, 463 S.W.3d 469, 487 (Tenn. 2015).3

        In State v. Troy Love, this court determined that it must address whether a similar
jury instruction was erroneous. No. E2015-02297-CCA-R3-CD, 2017 WL 1077062, at
*22 (Tenn. Crim. App. Mar. 21, 2017), perm. app. denied (Tenn. July 20, 2017). This
court concluded that based on evidence that the defendant had claimed that he “didn’t
mean to do it,” the instruction would not have been harmless beyond a reasonable doubt.
Id. at *21. Accordingly, this court addressed the accuracy of the instruction, concluded
the instruction was erroneous, and reversed the conviction. Id. at *22. This case was
decided approximately one year after the Defendant’s trial.

        The Defendant urges us to rely on Troy Love to find that the instruction was
erroneous and that the error was not harmless beyond a reasonable doubt. However, the
evidence in this case, like the evidence in Clark, established that the Defendant’s act of
touching the victim’s intimate parts was intentional. At trial, the Defendant denied any
sort of sexual contact with the victim. In his interview with Detective Bush, on the other
hand, he acknowledged that he had intentionally unzipped her pants. Thus, there was no
evidence from which the jury could have concluded that he had knowingly or recklessly
touched the victim. As in Clark, any error in instruction would have been harmless
beyond a reasonable doubt, and we accordingly conclude that no substantial right of the
Defendant was adversely affected. See Bishop, 431 S.W.3d at 44.

                                            II. Sentencing

      The Defendant next argues that the trial court erred in enhancing his sentence. He
argues that his prior criminal history was “limited” and that the trial court incorrectly

        3
           The pattern jury instructions have since been amended to incorporate the mens rea into each
element of the offense. See 7 Tenn. Prac. Pattern Jury Instr. T.P.I.-Crim. 10.03(b) (listing as an element
“that the defendant intentionally, knowingly, or recklessly caused bodily injury to the alleged victim”).
                                                 - 12 -
found that the crime involved a high risk to human life. The State concedes that the trial
court erroneously relied on the fact that the offense involved a high risk to human life as
enhancement. However, the State argues that the sentence is entitled to a presumption of
correctness and there was no abuse of discretion.

        This court reviews challenges to the length of a sentence under an abuse of
discretion standard, “granting a presumption of reasonableness to within-range sentences
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 trial court’s weighing of enhancement and mitigating factors is discretionary.
State v. Carter, 254 S.W.3d 335, 345 (Tenn. 2008). The trial court is “to be guided by —
but not bound by — any applicable enhancement or mitigating factors when adjusting the
length of a sentence.” Bise, 380 S.W.3d at 706. Further, “a trial court’s misapplication
of an enhancement or mitigating factor does not invalidate the sentence imposed unless
the trial court wholly departed from the 1989 Act, as amended in 2005.” Id. 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. The appealing party bears the burden of proving that the
sentence was improper. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

       In determining “the specific sentence and the appropriate combination of
sentencing alternatives,” the trial court must consider: (1) the evidence at the trial and 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
mitigating and enhancement 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 defendant wishes to make in the defendant’s own
behalf about sentencing. T.C.A. § 40-35-210(b).

       The trial court found that the Defendant’s sentence should be enhanced based on
the fact that he “had no hesitation about committing a crime when the risk to human life
was high.” T.C.A. § 40-35-114(10). As the State notes, enhancement factor (10),
requiring a finding that the defendant had no hesitation about committing an offense
involving a high risk to human life, “is applicable only when there is proof that the
defendant’s conduct in committing the offense created a high risk to the life of someone
other than the victim.” State v. Trent, 533 S.W.3d 282, 294 (Tenn. 2017). Accordingly,
as the State concedes, the trial court misapplied this factor. However, the misapplication
of enhancement or mitigating factors is no longer a basis for reversal of a trial court’s
                                            - 13 -
sentencing decision. Bise, 380 S.W.3d at 706. In Bise, the trial court misapplied the
single enhancement factor supporting the sentence. Bise, 380 S.W.3d at 708. The
sentence was nevertheless upheld because the trial court had based the decision on its
determination of the need for deterrence and the defendant’s potential for rehabilitation.
Id. at 709.

        In this case, the trial court noted at sentencing that the evidence was sufficient to
support the charged crime of aggravated rape. The court found that the circumstances of
the crime of which the Defendant was convicted were “egregious” in that the victim was
struck and then sexually assaulted while she was in a semi-conscious state. The trial
court also noted that the Defendant had other criminal behavior and that the victim’s
ability to resist was impaired by alcohol. The court imposed a within-range sentence
after considering the purposes and principles of sentencing. Accordingly, we conclude
the trial court did not abuse its discretion, and we affirm the sentence.

                                     CONCLUSION

       Based on the foregoing analysis, we affirm the judgment of the trial court.




                                                    _________________________________
                                                     JOHN EVERETT WILLIAMS, JUDGE




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