        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                   July 28, 2009 Session

       STATE OF TENNESSEE v. ANTHONY DEWAYNE HOOD
                   Appeal from the Criminal Court for Union County
                        No. 3182    E. Shayne Sexton, Judge


               No. E2008-02298-CCA-R3-CD - Filed September 10, 2010


The Defendant, Anthony DeWayne Hood, appeals from his conviction by a jury in the Union
County Criminal Court for sexual battery by an authority figure, a Class C felony, for which
he was sentenced as a Range I, standard offender to six years in the Department of
Correction. On appeal, the Defendant contends that: (1) the evidence is insufficient to
support his conviction, (2) the trial court denied his right to a fair trial when it responded in
the jury’s presence to the Defendant’s motion for judgment of acquittal that the burden had
been met, (3) the trial court erred in allowing the State to introduce irrelevant, unfairly
prejudicial, and improper character evidence, (4) there was prosecutorial misconduct because
the State misstated the evidence during opening statement and closing argument and
commented on the credibility of a witness, and (5) his sentence is excessive because the trial
court misapplied an enhancement factor and denied alternative sentencing. We conclude that
the trial court committed reversible error when it stated in the jury’s presence that the State’s
burden of proof had been met. We reverse the judgment of the trial court and remand the
case for a new trial.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed;
                                  Case Remanded

J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which J AMES C URWOD W ITT,
J R., and D. K ELLY T HOMAS, J R., JJ., joined.

Wesley D. Stone, Knoxville, Tennessee, for the appellant, Anthony Dewayne Hood.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant
Attorney General; William Paul Phillips, District Attorney General; and Tracy Tipton
Jenkins, Assistant District Attorney General, for the appellee, State of Tennessee.
                                          OPINION

        This appeal arises from the Defendant’s conviction for sexual battery of his adopted
daughter, B.H. Leisha Hicks testified that she met the Defendant when she was fifteen years
old and he was seventeen years old, when they lived in Jamestown, Tennessee. She said they
“fell madly in love” and got married when she turned eighteen. She said that they divorced
in 1986 but that they remained friends, even though they remarried other people. She said
that the Defendant moved to Mississippi in 2001 or 2002 after his wife went to prison and
that she communicated with him on the telephone often during this period. She said that the
Defendant lost his home in Hurricane Katrina and that he and his five children moved to
Jamestown. She said that she helped the Defendant find a house in Maynardville and that
they moved in together on October 1, 2005. She said that her friend, Margaret Helton,
moved in for about a week before the alleged offense occurred.

       Ms. Hicks testified that she observed the relationship between the Defendant and the
victim. She said B.H. was the oldest child–fifteen at the time–and was in charge of the
younger children. She said that B.H. was very possessive of her father and that at first, “it
was sort of like I was stepping in on her turf.” She said that she got along well with the four
younger children and that B.H. had done a great job with them. She said the “competition”
with B.H. lasted a few weeks and then improved. She said she noticed things about B.H.’s
relationship with the Defendant that were “strange.” She said every time the Defendant went
somewhere, B.H. went with him. She said that if B.H. was not in the vehicle when the
Defendant tried to leave the house, B.H. would “throw screaming tantrum fits.” She said
B.H. always had to be sitting next to the Defendant, almost in his lap, or sitting at his feet.
She said she thought this was odd.

        Ms. Hicks testified that on the night of November 16, 2005, she went to bed early.
She said that she awoke to use the bathroom and that when she walked out of her room, she
saw that the Defendant was not on the couch where he usually slept. She said she searched
through the house and looked out the window and saw his vehicle in the driveway. She said
that the younger children slept upstairs and that it was dark and quiet. She said the only other
place the Defendant could have been was in B.H.’s room. She said that she walked down the
hall toward B.H.’s room and that the door was slightly ajar. She said the light switch was
located on the outside of the room. She said she pushed open the door and flipped on the
light at the same time. She said that B.H. was completely nude, lying on her stomach, with
her “hind end” raised slightly, and the Defendant’s face was four or five inches from B.H.’s
genitals.

       Ms. Hicks testified she was so shocked that she walked out of the room and into the
kitchen. She said she did not remember the first few exchanges with the Defendant. She

                                              -2-
stated he grabbed her arm and said, “If you ever tell anybody, I swear to God, I’ll kill you.”
She said he was serious. She said the Defendant next said, “I will have her testify in Court
that Margaret [Helton] was fooling with her.” She said that she knew the Defendant kept a
gun in the house and that she was frightened. She said she dressed quickly and slipped out
the front door while the Defendant was talking to Margaret Helton. She said she ran to the
nearest neighbor’s house and called the police. She stated that the police responded quickly
and that she did not return to the house until a couple of weeks later to retrieve her
belongings.

       Ms. Hicks testified that the first few weeks after the incident, the Defendant
repeatedly called her mother’s house threatening to kill her. She said she obtained an order
of protection against him. She said that she had contact with the Defendant again a year
before the trial and that the Defendant threatened her.

        On cross-examination, Ms. Hicks testified that after she saw the Defendant with B.H.
in the bedroom, she put her clothes on directly over her pajamas. She denied that she and the
Defendant argued for about ten minutes. She said that “some words” were spoken but that
it lasted only a few minutes. She did not remember whether she told the neighbors that she
saw the Defendant having or performing oral sex with B.H. She said she told the neighbors
she needed help and to call 9-1-1. She said that she was at the neighbor’s house for about
two hours and that she did not remember discussing the incident with them, although she said
it was possible. She said, however, that the police questioned her at length in the neighbor’s
living room.

       Ms. Hicks testified that when she walked into B.H.’s room, the Defendant was
wearing blue shorts. She said that she and the Defendant had sex in the house “a couple of
times” and that it “was very limited.” She denied that they had sex in different rooms. She
said they had sex only in her bedroom. She said the Defendant sometimes ejaculated inside
her and sometimes he withdrew before ejaculating. She denied that the Defendant kicked
her out of the house on November 16. She said she slipped out while the Defendant was
talking to Ms. Helton and “just ran.” She agreed that she left the children at the house with
the Defendant. She acknowledged that although she saw the Defendant’s face four or five
inches from B.H.’s genitals, she did not see any sexual contact.

        Ms. Hicks testified that she lived in a recovery home in Nashville. She said that she
had received inpatient drug rehabilitation treatment and that she had not used drugs for
almost one year. She acknowledged that she had been addicted to prescription medication
when she lived with the Defendant. She said that regarding the night she found the
Defendant with B.H., she had taken a couple of hydrocodone pills earlier in the day. She said
that she had been prescribed some nerve medication at the time and that she might have taken

                                             -3-
one of those pills. She did not remember drinking alcohol that day, although she
acknowledged that she drank alcohol sometimes when she lived there. When asked if she
were taking hydrocodone in excess, she said, “At that time, not—I was totally in all my
faculties, if that’s what you’re getting at. I was not out of my gourd high on pills.” When
asked whether she was aware of accusations that she fabricated the story, she said that she
was. She said that B.H. had called her at her mother’s house one time after November 16.

       On redirect examination, Ms. Hicks testified that their families were from Jamestown
and that the Defendant had told anyone who would listen that she fabricated the story. She
said she had valid prescriptions for the medications she was taking. She confirmed that she
and the Defendant had sex only in her bedroom. She said she never saw the defendant
masturbate elsewhere in the house. When asked if she had ever had sex on the couch, she
responded, “With five kids in the house, no.”

       Ms. Hicks testified that the span of time during which she observed the Defendant
with his face next to B.H.’s naked genitals was short. She said that the Defendant was
leaning over and that when the lights came on, he immediately straightened and looked at
her. She said she turned and walked out. She confirmed that B.H. was totally nude and that
her rear end was in the air. She said B.H. was not completely on her knees.

       B.H. testified that she was seventeen at the time of the trial. She testified that the
Defendant was her father but not her biological father. She said he adopted her when she
was three years old. She said that Amy Hood was her mother and that her mother left when
she was ten. She said that she had sisters and a brother and that her father took care of them
when their mother left, both in Mississippi and in Tennessee.

       B.H. testified that on the night of November 16, she was taking Elmiron, hydroxyzine,
and pain medication. She said the medications made her sleep. She said she was not feeling
well that night and lay on the couch. She said her father woke her up between 8:30 p.m. and
9:30 p.m. and told her to take a shower, to eat, to take her medicine, and to go to bed. She
said she was asleep for a few minutes and then was awakened because she heard Ms. Hicks
and her father arguing. She said she did not think much about it because they had been
arguing all week. She said she went into the kitchen, got something to drink, returned to her
room, and turned on the television. She said she then heard yelling and Ms. Hicks’s saying
she was leaving and slamming the door. She said the next thing she remembered was that
a policeman arrived and asked her what was going on. She could not remember what was
playing on television that night. She said she had described all she remembered about that
night.




                                             -4-
       B.H. testified that she had a conversation with the Defendant following that night.
She said the Defendant told her that it was her fault, that she was going to cause him to lose
his “real” kids and go to jail, and that none of it would have happened had it not been for her.
She said she did not know what the Defendant was talking about when he said all this would
never have happened if it were not for her. She denied the Defendant had made any threats
toward her. She said the Defendant contacted her at her foster mother’s house.

       On cross-examination, B.H. testified that on the night of November 16, she was
wearing gray sweatpants and a t-shirt. She said she had not been wearing those clothes while
she had been sleeping on the couch. She said she had put the clothes on because she slept
in them every night. She agreed that she had slept in them on three or four nights without
their being washed. She acknowledged that while wearing those clothes she had gone into
Ms. Hicks’s bedroom, sat on her bed and floor, and lounged around the house. She agreed
that she remembered waking to Ms. Hicks and the Defendant’s arguing, walking to the
kitchen, getting something to drink, returning to her room, and turning on the television.

        B.H. testified that Ms. Hicks and the Defendant argued often. When asked if she
threw “screaming fits” when her father would leave the house without her, she said “it kind
of made me mad because . . . I was kind of jealous that Dad didn’t do anything with me
anymore.” She said the Defendant was focused on Ms. Hicks and he “kind of put us aside.”
She agreed she had fits. She said she was taking medication because she had interstitial
cystitis, which she explained was a chronic bladder disease which she had had for nearly two
years. She agreed that she had a procedure shortly before November 16 that caused
dampness or her bladder to leak.

       On redirect examination, B.H. testified that when she awoke on the night of
November 16, she was wet, but she assumed that it was from the treatments because it had
happened before. When asked if she had considered other possibilities for the wetness, she
said that at the time, she had not. She said she later thought there might be another
possibility. She said that for a long time, she did not think that anything had happened
between her father and her, but that by the time of the trial, she felt as if something had
occurred. She said, for example, that the telephone conversation with her father “kind of fits
in and it kind of makes sense now.”

        B.H. testified that it could not have been more than fifteen or twenty minutes from the
time she went to bed until she awoke to arguing. She could not remember exactly how long
it was before she went to bed that she took her medicine, but she thought it had been about
fifteen to twenty minutes.




                                              -5-
       On recross-examination, B.H. testified that, initially, she did not believe anything had
happened to her. She agreed that she had begun to believe that something may have
happened based upon what she had learned about her father. She acknowledged that she
formed that opinion based on what Detective Minor, the Child Protective Services officers,
and the Department of Children’s Services officers told her they thought had happened. She
denied knowledge of a criminal charge against the Defendant.

        Detective Rodney Minor testified that he responded to the call at the Defendant’s
residence because he was the sex crimes investigator for Union County. He said that he
specialized in child abuse sex crimes and that he had received special training. He testified
that he arrived at the Defendant’s residence at 11:40 p.m. and that other officers were
present. He said that B.H. was in and out of sleep and that they had to wake her. He said she
was wearing gray sweatpants and was wrapped in a blanket and lying crossways on her bed.
He said he first talked to Ms. Hicks. He said the Defendant made an oral statement, which
he transcribed, while they sat at the table waiting for the Department of Children’s Services
to arrive. The Defendant stated that if “anything” were found on B.H. or in her bedroom, he
was guilty. He said the Defendant agreed to DNA testing, and he identified the buccal swab
taken from the Defendant.

       Detective Minor testified that he and a nurse at the hospital collected the sweatpants
and sent them to the Tennessee Bureau of Investigation (TBI). He said that the nurse put the
sweatpants in the evidence bag because he did not remain in the examination room while the
victim was being tested with the rape kit but that he helped seal the bag. Detective Minor
identified the sweatpants that the victim had been wearing. He said that he and a DCS
worker talked to B.H. at the emergency room. He said that a doctor performed the sexual
assault kit and that a blood sample was taken from B.H., which he forwarded to the TBI.

        Detective Minor testified that he did not arrest the Defendant that night because he
needed to finish his investigation by speaking with the Defendant’s other children. He said
the Defendant was not arrested until a few months later when the TBI tests returned a
positive match for spermatozoa. He said the Defendant made a written statement.

      On cross-examination, Detective Minor said he chose not to arrest the Defendant until
he had received the TBI report. He said that the Defendant’s DNA was found on the
sweatpants but no where else. He said that he also sent the following items to the TBI: the
sexual assault kit, a shirt, a bra, a bedspread, and the hospital sheet on which the victim stood
while the evidence for the assault kit was collected. When asked to confirm that the DNA
being found did not prove unlawful sexual contact, Detective Minor responded that when a
victim went to bed wearing clothes and someone saw the victim with clothes off, there had



                                               -6-
to be some type of contact to get the clothes off. He said that based upon his opinion and his
experience as an investigator of sex crimes, he arrested the Defendant.

        Special Agent Donna Nelson, a forensic scientist in the Serology/DNA unit of the
TBI, was accepted as an expert on serology and DNA. She said that she tested a DNA
standard from the Defendant against an unknown profile from a pair of sweatpants from the
victim. She identified the sweatpants as the ones she analyzed and explained that markings
on the sweatpants were areas that tested presumptively positive for the presence of semen.
She said that she then took one cutting in order to make a slide to determine the presence of
sperm. She said that she found sperm on the sweatpants. She said she did not take cuttings
from the other sections that had tested presumptively positive for semen. Upon a question
from a juror, she testified that the area tested was the left rear of the pants. She said that the
semen matched the Defendant’s DNA but that no other DNA evidence was present on the
other exhibits that she received. The TBI report reflecting Agent Nelson’s findings was
received into evidence.

        On cross-examination, Agent Nelson testified that she did not find the Defendant’s
DNA on the victim’s vaginal swabs, the anal swabs, the breast swabs, or in the victim’s
underwear. She said she did not examine the victim’s bra or t-shirt. She could not determine
when the pants were stained with the Defendant’s semen. When asked whether it was
possible that the Defendant had sex with his ex-wife, that semen was present on the bed or
floor, and that the pants later came into contact with it, she said that it was not something to
which she could testify, but she agreed that it was possible. She said she could not tell how
the semen had been deposited onto the pants. She agreed that the DNA was found on the left
buttock of the pants.

       The Defendant testified that B.H. was still in diapers when she came to live with him.
He said that he bathed her and her sisters and changed their diapers. He said he had seen
B.H. naked “thousands” of times because she had been a baby when he married her mother.
He said that seeing B.H. naked did not excite him sexually. He said that he knew everything
about B.H.’s interstitial cystitis because he was a single parent and was responsible for taking
her to the hospital and caring for her. He said he had read books about her condition and the
best ways to help her. He agreed he was very informed about the effects and symptoms of
her condition, which he described as extreme pain and staining of her underwear. He said
that for a period of two to three weeks, the victim had undergone treatments for a bleeding
bladder wall in which medication was injected into her bladder via a catheter. He said that
as a result of the procedure, the victim bled, was in extreme pain, and experienced a
discharge. He agreed that B.H. had a treatment about three or four days before November
16. He said that in all the years he had cared for B.H., the thought of having sex with her or
with any of his children had never entered his mind.

                                               -7-
       The Defendant testified that on the night of November 16, he “put [Leisha Hicks] and
her friend out of my house.” He said he was asleep on the couch and woke to find Hicks and
her friend taking the keys to his truck and his personal belongings. He said that they were
leaving because he had given them a deadline to move out by the next morning. He said that
Hicks and he had remained friends for thirty-one years, despite their divorce. He agreed that
he and Ms. Hicks had sex in the house. He said that he believed the DNA on the sweatpants
came from B.H. having lain somewhere in the house where he had engaged in sex with Ms.
Hicks. He said that he did not ejaculate inside Ms. Hicks because he had hepatitis C and that
he would ejaculate onto the bed or onto Ms. Hicks. He said he never used a condom.

       The Defendant testified that he did not recall making a statement to Detective Minor
to the effect that if any evidence were found, he was guilty. He said the only statement he
made was that if Detective Minor thought he was having sex with his child, she should be
taken to the hospital and examined. He said that he cooperated fully because he had no
choice. He said he voluntarily gave the DNA sample and consented for B.H.’s examination.

        On cross-examination, the Defendant testified that he legally adopted B.H. when she
was eight or nine. He said that after Amy Hood left him with the children, he moved to
Indiana for about one and one-half years. He said that he then moved to Mississippi and
lived there for about four years. He said that after Hurricane Katrina, he returned to
Jamestown, Tennessee. He said Ms. Hicks was living in Knoxville at the time. He said they
moved to Union County together, and then Ms. Helton joined them. He agreed that B.H.’s
interstitial cystitis was ongoing and that she took several different medicines for it on a daily
basis. He agreed that B.H.’s testimony that he and Ms. Hicks did everything together was
true at first. He agreed he had a sexual relationship with Ms. Hicks. He agreed that on the
night of November 16, he awoke about 10:00 p.m., that Ms. Hicks was in the kitchen, and
that Ms. Helton was in the dining room. He stated that Ms. Hicks said she was leaving. He
said that the keys were hanging on the wall near where she was standing, that she was
touching them, but that she did not yet have the keys in her hand.

       The Defendant agreed that he gave a statement to Detective Minor on November 17,
2005, at 1:58 a.m. He said that he did not write the statement but that he signed it. 1 The
statement said that Ms. Hicks was leaving and that she was standing next to the keys to his
truck. He agreed that he got the keys and went back to the living room and sat on the couch.
He said that Ms. Helton and Ms. Hicks went into the bedroom and closed the door. He said
that when he entered the room, Ms. Hicks was looking for something in the closet. He
acknowledged that he grabbed a box of checks and took them back to the living room. He



       1
           The Defendant’s signed statement was not received into evidence and is not contained in the record.

                                                         -8-
agreed that the women asked for a ride and that he told them no. He said Ms. Hicks left and
Ms. Helton tried to stay, but he told her she had to leave too.

        When asked if he had a close relationship with B.H., the Defendant testified that he
had a close relationship with all his children. He agreed that he and B.H. had been close
since the children’s mother left and that he had full custody. He denied telling Detective
Minor that if the detective found anything, he had done it. He confirmed that he told
Detective Minor to have B.H. checked at the hospital if the detective suspected sexual abuse.
He said he talked to B.H. for eight or nine months after the alleged incident, while she was
in DCS custody in a foster home. When asked if he told her this was her fault, he said that
he had no idea. He said they were arguing when he went to get her on July 12. When asked
if he sent B.H. money to run away, the Defendant replied that he sent B.H. money to come
home. He said this occurred after B.H. had been in a foster home for about six months. On
redirect examination, the Defendant agreed that he had testified that he had a close
relationship with his daughter, but he said that he did not have a sexual relationship with her.
The jury convicted the Defendant of sexual battery by an authority figure.

                                               I

       The Defendant contends that the evidence is insufficient to sustain his conviction for
sexual battery by an authority figure because there was no direct evidence of contact and the
victim conceded that she formed her opinion that sexual contact occurred after speaking with
law enforcement officers and the DCS. The State contends that the evidence is sufficient for
a reasonable jury to infer sexual contact because there was proof the Defendant’s face was
inches from the victim’s naked genitals and his semen was found on her pajamas. We agree
with the State.

        Our standard of review when the sufficiency of the evidence is questioned on appeal
is “whether, after viewing the evidence in the light most favorable to the prosecution, 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, 319 (1979). This means that we may not reweigh
the evidence, but must presume that the jury has resolved all conflicts in the testimony and
drawn all reasonable inferences from the evidence in favor of the state. See State v.
Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.
1978). Any questions about the credibility of the witnesses were resolved by the jury. See
State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). A jury may use “common knowledge and
experience in making reasonable inferences from evidence.” State v. Meeks, 876 S.W.2d
121, 131 (Tenn. Crim. App. 1993).




                                              -9-
       The statute pertinent to the Defendant’s conviction provides:

              (a) Sexual battery by an authority figure is unlawful sexual
              contact with a victim by the defendant, or the defendant by a
              victim, accompanied by the fact that the victim was, at the time
              of the offense, thirteen (13) years of age or older, but less than
              eighteen (18) years of age, and either:

                     (1) The defendant was, at the time of the offense,
                     in a position of trust, or had supervisory or
                     disciplinary power over the victim by virtue of the
                     defendant’s legal, professional or occupational
                     status, and used the position of trust or power to
                     accomplish the sexual contact; or

                     (2) The defendant had, at the time of the offense,
                     parental or custodial authority over the victim and
                     used such authority to accomplish the sexual
                     contact.

T.C.A. § 39-13-527 (Supp. 2005). Sexual battery by an authority figure is a Class C felony.
Id.

       “Sexual contact” is defined in the Code as:

              [T]he intentional touching of the 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 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 . . . .

T.C.A. § 39-13-501(6) (Supp. 2005). “Intimate parts includes the primary genital area, groin,
inner thigh, buttock or breast of a human being . . . .” Id. § 39-13-501(2).

        Taken in the light most favorable to the State, the evidence showed that the victim was
fifteen years old at the time of the offense and that the Defendant was her adoptive father.
Ms. Hicks discovered the Defendant and the naked victim alone in the victim’s bedroom,
with the door closed and late at night. Ms. Hicks saw the Defendant standing at the foot of
the bed and leaning toward the victim’s naked “hind end.” The victim was on her knees and

                                             -10-
her buttocks were raised to the Defendant’s face. The Defendant’s face was only four or five
inches from the victim’s genitals. The Defendant “immediately straightened” when Ms.
Hicks entered the victim’s room and then followed Ms. Hicks from the victim’s bedroom and
threatened to kill her if she told anyone about what she had seen. For weeks following this
incident, the Defendant repeatedly called Ms. Hicks and threatened to kill her. The victim’s
genitals were wet, and although the source of the wetness was undetermined, the victim
believed that the wetness was not caused by her interstitial cystitis. The Defendant’s semen
was recovered from the left rear buttock of the sweatpants the victim had been wearing that
night. As the trier of fact, the jury resolved all conflicts in the testimony and issues of
credibility in favor of the State. The jury was permitted to use common knowledge and
experience to make the reasonable inference that the Defendant had intentionally touched the
victim’s intimate parts. We hold that the evidence is sufficient to support the Defendant’s
conviction for sexual battery by an authority figure.

                                               II

        The Defendant contends that the trial court denied his right to a fair trial by jury when
it responded in the jury’s presence to the Defendant’s motion for judgment of acquittal that
the burden of proof had been met. The State contends that the Defendant has waived this
issue because he failed to make a contemporaneous objection to the trial court’s statement
and that the trial court’s statement does not constitute plain error.

       At the close of the State’s proof, the following exchange occurred in the presence of
the jury:

              THE COURT:                    All right. The State of Tennessee
                                            has rested its case.

                                                   For the record, [defense
                                            counsel], I will note your motion
                                            filed previous to this witness’
                                            testimony. Make it for the record at
                                            the – your motion for judgment of
                                            acquittal.

              DEFENSE COUNSEL:              Yes, your Honor.

              THE COURT:                    At this particular point, I’m not
                                            ruling on it, but I’ll allow you to
                                            proceed.

                                              -11-
              DEFENSE COUNSEL:              Some argument on the – on the
                                            Rule 29 motion?

              THE COURT:                    If you wish to make it. I mean, the
                                            Court – the Court has heard – the
                                            burden has been met as far as the
                                            Court is concerned for this case to
                                            proceed forward.

              DEFENSE COUNSEL:              Okay.

              THE COURT:                    So you may –

              DEFENSE COUNSEL:              So you would deny the motion
                                            despite argument?

              THE COURT:                    Yes.

              DEFENSE COUNSEL:              Okay.

Following this exchange, defense counsel conferred with the Defendant and announced that
the Defendant intended to testify.

        The Tennessee Constitution prohibits judges from commenting on the evidence in a
trial, but judges may “state the testimony and declare the law.” Tenn. Const. art. VI, § 9. A
trial judge is obligated to “be very careful not to give the jury any impression as to his
feelings or to make any statement which might reflect upon the weight or credibility of
evidence or which might sway the jury.” State v. Suttles, 767 S.W.2d 403, 407 (Tenn. 1989).
Our supreme court has reversed a defendant’s conviction for sexual molestation as a result
of the trial court’s interviewing the ten-year-old victim, informing the jury that he had spoken
privately with the victim, who was the only witness to the alleged offense, and stating that
the victim was “truthful” and “believable.” Id. However, this court has held that other
comments touching on the evidence or a witness’s credibility do not breach an unequivocal
rule of law. See State v. Roy D. Wakefield, No. M2005-01136-CCA-R3-CD, Williamson
County (Tenn. Crim. App. June 29, 2006) (holding that an unequivocal rule of law was not
breached when the trial court stated the ten-year-old victim had “been through enough”);
State v. Robert D. Walsh, No. W1999-01473-CCA-R3-CD, Shelby County (Tenn. Crim.
App. June 4, 2001) (holding that an unequivocal rule of law was not breached by the trial
court’s comments, “See you’re a good jury. You listen to everything. Whether it’s real or
not.”).

                                              -12-
        When a judge’s improper comments do not involve a central factual question, when
irrefutable proof is offered to contradict a judge’s comments, or when curative instructions
are given, our courts have been less likely to find reversible error. See, e.g., Johnson v. Tenn.
Farmers Mut. Ins. Co., 205 S.W.3d 365 (Tenn. 2006) (judge’s improper comment, “I hold
that’s not what the [insurance] policy provides[,]” was incorrect statement of the facts, but
the insurance policy was admitted into evidence, both parties testified to the provision in
question, and judge’s comment was brief and early in the trial); Mercer v. Vanderbilt Univ.
Inc., 134 S.W. 3d 121 (Tenn. 2004) (judge’s improper comments that a witness was changing
her testimony and was hostile were directed at a small part of one witness’s testimony, jury
was charged that it was sole trier of fact, and judge offered to give a curative instruction).

       We note that the Defendant did not object to the trial court’s statement and did not
request any action, such as a mistrial, to negate any impression the trial court’s statement
might have made on the State’s case. Such failures waive consideration of this issue on
appeal. See T.R.A.P. 36(a); Kelly v. State, 477 S.W.2d 768, 770 (Tenn. Crim. App. 1972).
This court may, however, in the interest of justice, recognize plain error in the record. See
T.R.A.P. 36(b). Our supreme court has adopted five factors to consider when deciding
whether an error constitutes plain error in the absence of an objection at trial:

              (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)). In order for this court to reverse the judgment of a
trial court, the error must be “of such great magnitude that it probably changed the outcome
of the trial,” and “recognition should be limited to errors that had unfair prejudicial impact
which undermined the fundamental fairness of the trial.” Adkisson, 899 S.W.2d at 642.

        The first Smith factor is satisfied because the record establishes what occurred in the
trial court. Regarding the second factor, the question is whether the statement made in the
jury’s presence was a breach of the clear and unequivocal rule of law.

      Our supreme court has held that commenting on the truthfulness or believability of
a key witness’s testimony is grounds for reversal. See Suttles, 767 S.W.2d at 406-07;
Graham v. McReynolds, 18 S.W. 272, 275 (Tenn. 1891). In Suttles, the trial judge
commented that he had interviewed the alleged victim of a sexual assault and that he thought

                                              -13-
the victim’s testimony was important for the jury to hear. 767 S.W. 2d at 406. Because the
victim was uncomfortable testifying in front of a crowd, the judge ordered the courtroom
closed. He then said that the witness was “truthful” and “believable.” Id. The supreme court
held that the judge’s comments and actions could have been interpreted by the jury as an
endorsement of the victim’s credibility, and it remanded the case for a new trial. Id. at 407.

       Similarly, in Graham, the supreme court held that a judge’s comment, “I take it that
Mrs. McReynolds is doing the best she can in the matter[,]” was reversible error because it
was a comment on the credibility of a key witness who was being impeached on cross-
examination. 18 S.W. at 275. The court stated that the judge’s comments, made during
cross-examination, “naturally imported a suggestion to the jury that the Court was of the
opinion that the witness was testifying in good faith . . . .” Id.

        In addition, this court has held that a trial court’s improper statements during the jury
charge, which possibly misled the jury regarding the State’s burden of proof, were grounds
for reversal. State v. David Michael Chubb, No. M2005-01214-CCA-R3-CD, Sumner
County (Tenn. Crim. App. Jan. 29, 2007). David Michael Chubb involved a question of
credibility between an alleged victim of sexual assault and the defendant. The trial court
instructed the jury that no corroboration of the victim’s testimony was necessary. Id., slip
op. at 20. This court held that “[t]he jury instruction effectively informed the jury that they
need look no further than the victim’s testimony to convict and thus implied that the jury
need not consider all other proof.” Id. at 21.

        When taken in context, we conclude that the trial court’s comment in this case
essentially told the jury that the State had met its burden of proving the Defendant’s guilt
beyond a reasonable doubt. The jury had been instructed at the beginning of the trial that the
State was required to put on evidence and had “the burden of proving the guilt of the
defendant beyond a reasonable doubt.” The court also instructed the jury that the State “must
have proven beyond a reasonable doubt all the elements of the crime charged . . . .” After
the State had rested, the trial judge, in open court and in front of the jury, said that the State’s
burden had been met for the trial to proceed forward. The court had just referred to the
motion for judgment of acquittal. Although the jury had already been instructed that the
court’s instructions, rulings, and remarks during the trial were not to be taken as the court’s
opinion about the facts or the Defendant’s guilt, we are mindful that “jurors are anxious to
know the mind of the Court, and follow it . . . .” McDonald v. State, 14 S.W. 487, 488
(Tenn. 1890). We conclude that the trial court’s statement could have been taken as a
comment on the State’s evidence and the credibility of the State’s witnesses. Coming at the
end of the State’s proof and following the Defendant’s motion for judgment of acquittal, the
trial court’s statement conferred credibility on the State’s proof, at least from the jury’s point
of view. We conclude that the trial court’s comment was a clear and unequivocal breach of

                                               -14-
the law prohibiting judges from commenting on the evidence. It follows that the Defendant’s
right to a fair trial was adversely affected. The record reflects that the Defendant did not
waive the error for tactical reasons and consideration of the error is necessary to do
substantial justice.

       The Due Process Clause of the Fourteenth Amendment to the United States
Constitution and article I, section 8 of the Tennessee Constitution afford every criminal
defendant the right to a fair trial. See Johnson v. State, 38 S.W.3d 52, 55 (Tenn. 2001).
Because the trial court’s statement amounted to a comment on the evidence that conferred
credibility on the State’s proof, the Defendant’s right to a fair trial was affected to his
prejudice. The Defendant has established that plain error occurred. He is entitled to a new
trial.

                                              III

        The Defendant contends that the trial court erred in allowing the State to offer into
evidence irrelevant, unfairly prejudicial, and improper character evidence demonstrating a
bizarre relationship between the Defendant and the victim. The Defendant claims that the
State introduced the evidence to establish action in conformity with a character trait and that
the State should have requested a hearing to determine the admissibility of the witness’s
testimony pursuant to Tennessee Rule of Evidence Rule 404(b). The State contends that the
Defendant has waived this issue because he did not seek a curative instruction after the trial
court sustained his objection to the witness’s testimony.

       At the trial, the State questioned Leisha Hicks about the Defendant’s relationship with
the victim:

              THE STATE:                   Okay. What about the relationship
                                           between her and the defendant?

              A:                           I started noticing things that I
                                           thought were strange.

              DEFENSE COUNSEL:             I’m gonna object as to relevancy,
                                           anything – I mean, this is about an
                                           in c id e n t t h a t o c c u rre d o n
                                           November 16th about an allegation
                                           that she saw–

              THE COURT:                   What is the relevance?

                                             -15-
THE STATE:         Your Honor, it’s circumstantial
                   evidence. There – clearly, this is a
                   case where we have eyewitness
                   testimony, but the relationship
                   between the victim and the
                   defendant is relevant to what
                   happened the night of November
                   16th.

THE COURT:         I’ll allow some of that if it – just be
                   – be advised that other acts of
                   similar type – if there is something
                   like that, . . . I will put a stop to
                   that. Okay?

THE STATE:         What did you notice about their
                   relationship?

A.                 Every time he went somewhere [the
                   victim] went with him. I mean,
                   every time. The few times that he
                   did try to leave the house and that
                   she wasn’t in the vehicle, she
                   would throw screaming tantrum
                   fits. I mean, it was – I thought that
                   was odd.

                           Also, she – you know, at
                   night when we were sitting around
                   watching TV, she always had to be
                   sitting next to him, almost in his
                   lap; sitting at his feet. I thought
                   that was odd.

DEFENSE COUNSEL:   Again, your Honor, objection.

THE COURT:         Sustain the objection.       That’s –
                   that’s clearly irrelevant.




                    -16-
       Relevant evidence is admissible unless “its probative value is substantially outweighed
by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of cumulative
evidence.” Tenn. R. Evid. 402, 403. Rule of Evidence 404 prohibits evidence of other
crimes, wrongs, or acts offered to show a character trait in order to prove that a defendant
acted in conformity with that character trait. Tenn. R. Evid. 404(b). However, evidence of
other crimes, wrongs, or acts may be admissible for other purposes. Id. The rule lists four
requirements that must be satisfied before a court determines admissibility:

              (1) The court upon request must hold a hearing outside the
              jury’s presence;

              (2) The court must determine that a material issue exists other
              than conduct conforming with a character trait and must upon
              request state on the record the material issues, the ruling, and the
              reasons for admitting the evidence;

              (3) The court must find proof of the other crime, wrong, or act
              to be clear and convincing; and

              (4) The court must exclude the evidence if its probative value is
              outweighed by the danger of unfair prejudice.

Id. 404(b)(1)-(4). We review a trial court’s ruling on evidentiary matters under Rule 404(b)
using an abuse of discretion standard, provided the trial court has substantially complied with
the procedural prerequisites of the rule. State v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997).
If the court did not substantially comply with the procedure, its decision is not entitled to
deference by the appellate court. See id. at 653.

         The Defendant did not request nor did the trial court conduct a hearing pursuant to
Rule 404(b). Ms. Hicks’s observations of the victim’s behavior were permissible pursuant
to Rule of Evidence 602. The testimony concerned the victim’s insistence on accompanying
the Defendant and her behavior when the Defendant tried to leave her at home. The
testimony also concerned the victim’s trying to be in physical proximity to the Defendant
when watching television. There was no testimony that the Defendant elicited or encouraged
these behaviors in the victim. When the Ms. Hicks testified about her belief that the behavior
was odd, defense counsel objected, and the trial court sustained the objection. The
Defendant did not request a curative instruction, and a failure to request a curative instruction
is a failure to take action to nullify or prevent harmful error. See State v. Jones, 733 S.W.2d
517, 522 (Tenn. Crim. App. 1987). An appellate court is not required to grant relief to a

                                              -17-
party who failed to take action to nullify a harmful error. See T.R.A.P. 36(a). Moreover,
when taken in context, we cannot say that the error more probably than not affected the
judgment. See T.R.A.P. 36(b). The testimony concerned the victim’s behavior and not the
Defendant’s propensity for conforming conduct, the trial court sustained the Defendant’s
objection, and the trial court disallowed further testimony concerning the witness’s
impressions of the Defendant and victim’s relationship. The Defendant is not entitled to
relief on this issue.

                                            IV

       The Defendant contends that he was denied a fair trial as a result of prosecutorial
misconduct. He asserts that the State misstated the evidence during its opening statement by
remarking that Ms. Hicks had observed an “odd” relationship between the victim and the
Defendant and that Ms. Hicks saw the Defendant “performing oral sex” on the victim. The
Defendant claims that during closing argument, the prosecutor commented on the credibility
of the only witness it offered regarding sexual contact. Finally, the Defendant argues that
the State intentionally misstated the victim’s testimony during its closing argument. The
State contends that the Defendant has waived this issue because he failed to make a
contemporaneous objection to any of the statements.

       Prosecutorial misconduct does not constitute reversible error unless the outcome was
affected to the defendant’s prejudice. State v. Bane, 57 S.W.3d 411, 425 (Tenn. 2001). In
Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976), this court set out the
following considerations for determining if the prosecutor’s conduct could have improperly
prejudiced the defendant and affected the verdict:

              1. The conduct complained of viewed in context and in light of
              the facts and circumstances of the case.

              2. The curative measures undertaken by the court and the
              prosecution.

              3. The intent of the prosecutor in making the improper
              statement.

              4. The cumulative effect of the improper conduct and any other
              errors in the record.

              5. The relative strength or weakness of the case.



                                            -18-
See State v. Buck, 670 S.W.2d 600, 609 (Tenn. 1984) (approving these factors in
determining if the misconduct resulted in reversible error).

                                   A. Opening Statement

       In its opening statement, the State’s prosecuting attorney stated that Ms. Hicks “had
noticed this odd relationship between [the victim] and the defendant the time that she had
been with them, and she thought it seemed a little weird.” The prosecutor also said, “[Ms.
Hicks] sees the defendant performing oral sex on [the victim] who is [lying] on the bed.”
The Defendant claims that the prosecutor intentionally misstated the evidence because these
statements were unsupported by admissible proof.

       The State argues and the record reflects that the Defendant did not object at the trial
to any of the prosecution’s statements of which he now complains. Failure to do so
ordinarily results in a waiver of the issue. See T R.A.P. 36(a); State v. Robinson, 146 S.W.3d
469, 511 (Tenn. 2004) (concluding that the defendant waived the issue of improper
prosecutorial comments for failing to make a contemporaneous objection). The Defendant
contends, however, that the remarks constitute plain error. See Smith, 24 S.W.3d at 282.

       Although the record establishes what occurred at the trial, we conclude that no clear
and unequivocal rule of law has been breached. Smith, 24 S.W.3d at 282 (quoting Adkisson,
899 S.W.2d at 641-42). In light of the Judge factors, we conclude that the prosecutor’s
comments did not improperly prejudice the Defendant. The prosecutor misstated the
evidence in his opening statement by remarking that Ms. Hicks observed the Defendant
performing oral sex on the victim. The proof presented at the trial, though, was that Ms.
Hicks saw the Defendant’s face mere inches from the victim’s genitals. The prosecutor took
curative measures during closing argument to clarify the evidence presented during the trial:

              The Defendant wasn’t touching [the victim] at the time. I’m not
              even going to suggest to you all that when [Ms. Hicks] saw it he
              was touching her; that’s not the case. She didn’t testify to that.
              I’m not presenting that to you. But, I’m telling you right now,
              ladies and gentlemen, that if you’re four to five inches from
              somebody’s private area and you’re jumping back when
              somebody comes in, it is as reasonable as can be that you were
              touching them at some point.

In addition, the trial court admonished the jury that opening statements and closing
arguments were not evidence. The record does not reflect that the prosecutor had any
malicious intent when he made the statement. Finally, there was no cumulative effect

                                             -19-
because the statement about the Defendant performing oral sex was not repeated, no evidence
of sexual contact was presented, and the State took steps to cure its misstatement during its
closing argument. The Defendant is not entitled to plain error relief on the issue of
prosecutorial misconduct during opening argument.

                                    B. Closing Argument

       The Defendant contends that during closing argument, the prosecutor misstated the
evidence, gave a personal opinion regarding a witness’s testimony, and made arguments
calculated to inflame the passions of the jury.

                                      1. Misstatements

       During closing argument, the State’s prosecuting attorney said:

                      Now, [the victim] has told you the pieces all fit together,
              and she said it was not what other people had told her, that the
              conversations she had with her father when he called her after
              these – these allegations came to light and after these crimes had
              been committed, he called her and told her it was all her fault –
              this sixteen (16) year old at the time – it was all her fault.

                     ...

                      And she told you – and she said this on the stand after –
              actually when the Defense attorney was questioning her – that
              she was wet, and she initially thought that that was because of
              the interstitial cystitis. And this is an uncomfortable thing to
              talk about. She says to you today, it was not the interstitial
              cystitis that made her wet down there. It was because in her
              mind something had happened.

                    Now, she was taking medicine, and you heard testimony
              from Detective Minor about the fact that she – she was groggy
              when he got there and she was awake and she was asleep, and
              she was awake and she was asleep. She couldn’t stay with them
              the whole time, she was in and out of it. She was taking quite
              a number of medicines that affected her.




                                             -20-
        The Defendant claims that the victim formed her opinion about what had happened
only after she spoke with Detective Minor and DCS and that there was no testimony
regarding the number of medicines that the victim was taking. The Defendant also argues
that the prosecutor intentionally misstated the evidence in violation of State v. Goltz and that
the misconduct was so inflammatory as to affect the outcome of the his trial. See 111 S.W.3d
1, 6 (Tenn. Crim. App. 2003).

       The Tennessee Supreme Court has recognized that “argument of counsel is a valuable
privilege that should not be unduly restricted.” Smith v. State, 527 S.W.2d 737, 739 (Tenn.
1975). Attorneys have great leeway in arguing before a jury, and the trial court’s broad
discretion in controlling their arguments will be reversed only upon an abuse of discretion.
Terry v. State, 46 S.W.3d 147, 156 (Tenn. 2001). However, closing argument must be
“temperate, must be predicated on evidence introduced during the trial of the case, and must
be pertinent to the issues being tried.” Russell v. State, 532 S.W.2d 268, 271 (Tenn. 1976).

       As the State argues, the record reflects that the Defendant did not raise a
contemporaneous objection at trial to any of the prosecution’s argument. Nor is the
Defendant entitled to plain error relief on the basis that the prosecutor’s statement was
factually inaccurate. The prosecutor’s statement that the victim had come to believe that the
vaginal wetness was not related to her interstitial cystitis was an accurate summary of the
victim’s testimony. The victim also testified that she was taking several medications and that
they made her sleepy. The prosecution did not misstate the evidence.

                                     2. Personal Opinion

       During closing argument, the prosecutor stated:

              [Y]ou know, if Leisha Hicks had made up a story – well, first of
              all, she didn’t have any motive to make up a story, but it all fell
              together. The pieces fit together here, ladies and gentlemen.
              Even – well, whatever Leisha Hicks’ bias might be able to be,
              and there doesn’t seem to be any here, all the other pieces fall
              together corroborating what she said. And this DNA evidence
              links it all together.

       The Defendant argues that a prosecutor is prohibited from expressing “his personal
belief or opinion as to the truth or falsity of any testimony.” Goltz, 111 S.W.3d at 6. We
agree with the State that the Defendant has waived this issue for failure to make a
contemporaneous objection and is limited to plain error review. See T.R.A.P. 36(a); Smith,
24 S.W.3d at 282. In conducting our plain error review, we conclude that the prosecutor’s

                                              -21-
remark that Ms. Hicks did not “seem” to have any bias could be viewed as her personal
opinion about the truth or falsity of Ms. Hicks’s testimony. See Goltz, 111 S.W.3d at 6-7
(describing statements that were held to be comments on the truth or falsity of witness
testimony). However, the ultimate issue is not whether the prosecuting attorney’s remarks
were improper, but whether the improper remarks could have affected the verdict. See
T.R.A.P. 36(b); Judge, 539 S.W.2d at 344-45. The prosecutor’s statement was an argument
that despite Ms. Hicks’s alleged bias, the State believed that the evidence was sufficient to
convict the Defendant of the offense charged. The jury had already heard evidence of Ms.
Hicks’s alleged bias and its purported basis. When taken in context, we cannot say that the
statement more probably than not prejudicially affected the outcome of the Defendant’s trial.


                               3. Inflaming the Jury’s Passions

        The Defendant also argues that the prosecutor’s statement that “[The victim] was
upset and she cried, but she told you some things that clearly she was uncomfortable talking
about, and she wasn’t excited or thrilled about talking about the – because this guy had been
the father to her since she was a little kid” and other, similar statements inflamed the passion
of the jury by “injecting the State’s impression of [victim]’s comfort in discussing these
things.” The Defendant has waived this issue for failure to raise an objection at the trial and
is limited to plain error review. See T.R.A.P. 36(a), (b); Smith, 24 S.W.3d at 282. The
prosecutor’s statements were an accurate summary of the victim’s testimony, and the
Defendant has not established plain error.

                                               V

      The Defendant contends that the trial court imposed an excessive sentence when it
misapplied three enhancement factors, refused to apply an appropriate mitigating factor, and
denied the Defendant alternatives to incarceration. The State contends that the record
supports the trial court’s application of the advisory enhancement and mitigating factors.
The State does not address sentencing alternatives.

        At the sentencing hearing, a certified copy of the Defendant’s driving history and
certified copies of nine of the Defendant’s convictions were received into evidence. The
convictions were for driving under the influence, driving on a revoked license, public
intoxication, disorderly conduct, assault, criminal trespassing, passing a worthless check, and
violation of an order of protection. The psychosexual evaluation report and the presentence
report were also received into evidence. The State presented no witnesses.




                                              -22-
       The trial court found that the defendant had a long history of criminal conduct and that
a short sentence might depreciate the seriousness of the offense. It stated that although the
Defendant was considered a favorable candidate for alternative sentencing as a matter of law,
the presumption was rebutted by the evidence contained in the psychosexual report and the
presentence report. The trial court applied the following enhancement factors as provided
in Tennessee Code Annotated section 40-35-114: (1) the Defendant had a previous history
of criminal convictions or criminal behavior above those necessary to establish the range; (4)
the victim was particularly vulnerable because of age or physical or mental disability; and
(7) the offense involved a victim and was committed to gratify the Defendant’s desire for
pleasure or excitement. The trial court stated that it based its decision on “the long history
of criminal convictions, the age of the victim, and the mindset of the defendant that . . . these
acts were committed to gratify his desire for pleasure or excitement.” The trial court found
no mitigating factors and sentenced the Defendant as a Range I, standard offender to the six
years in the Department of Correction.

        At the hearing on the Amended Motion for New Trial, the Defendant contended, the
State conceded, and the trial court agreed that enhancement factor (7) did not apply because
this factor is an essential element of the offense of sexual battery by an authority figure. See
State v. Laurent, No. M2005-00289-CCA-R3-CD, Davidson County (Tenn. Crim. App. Feb.
27, 2006). Regarding factor (4), that the victim was particularly vulnerable due to age or
mental or physical condition, the court stated that it placed greater weight on the victim’s
mental condition than on her age and found that the application of factor (4) was appropriate.
See T.C.A. § 40-35-114(4). The court found that the application of the remaining
enhancement factor, (1) a history of criminal convictions or criminal behavior in addition to
those necessary to establish the range, was appropriate. See id. § 40-35-114(1). The trial
court found that the weight of the remaining enhancement factors were of such a strong
nature that the sentence of six years’ confinement remained appropriate and that the
psychosexual evaluation and presentence report showed that the Defendant was not amenable
to rehabilitation. Finally, the court rejected as mitigation that the Defendant neither caused
nor threatened serious bodily injury. See id. § 40-35-113(1).

        Appellate review of sentencing is de novo on the record with a presumption that the
trial court’s determinations are correct. T.C.A. §§ 40-35-401(d), -402(d) (2006). As the
Sentencing Commission Comments to these sections note, the burden is now on the
appealing party to show that the sentencing is improper. This means that if the trial court
followed the statutory sentencing procedure, made findings of fact that are adequately
supported in the record, and gave due consideration and proper weight to the factors and
principles that are relevant to sentencing under the 1989 Sentencing Act, we may not disturb
the sentence even if a different result were preferred. State v. Fletcher, 805 S.W.2d 785, 789
(Tenn. Crim. App. 1991).

                                              -23-
        However, the presumption of correctness which accompanies the trial court’s action
“‘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. Carter, 254 S.W.3d
335, 344-45 (Tenn. 2008) (quoting State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991)). In
this respect, for the purpose of meaningful appellate review,

              the trial court must place on the record its reasons for arriving at
              the final sentencing decision, identify the mitigating and
              enhancement factors found, state the specific facts supporting
              each enhancement factor found, and articulate how the
              mitigating and enhancement factors have been evaluated and
              balanced in determining the sentence.

State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1994); see T.C.A. § 40-35-210(e) (2006).

       Also, in conducting a de novo review, we must consider (1) the evidence, if any,
received at the trial and 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, (5) any mitigating or statutory enhancement factors, (6) statistical
information provided by the administrative office of the courts as to sentencing practices for
similar offenses in Tennessee, (7) any statement that the defendant made on his own behalf,
and (8) the potential for rehabilitation or treatment. T.C.A. §§ 40-35-102, -103, -210 (2006);
see Ashby, 823 S.W.2d at 168; State v. Moss, 727 S.W.2d 229, 236 (Tenn. 1986).

      In imposing a specific sentence within the appropriate range of punishment for the
defendant:

              [T]he court shall consider, but is not bound by, the following
              advisory sentencing guidelines:

                     (1) The minimum sentence within the range of
              punishment is the sentence that should be imposed, because the
              general assembly set the minimum length of sentence for each
              felony class to reflect the relative seriousness of each criminal
              offense in the felony classifications; and

                     (2) The sentence length within the range should be
              adjusted, as appropriate, by the presence or absence of
              mitigating and enhancement factors set out in §§ 40-35-113 and
              40-35-114.

                                             -24-
T.C.A. § 40-35-210. The 2005 Amendments to the Sentencing Act “increase the amount of
discretion a trial court exercises when imposing a sentencing term.” Carter, 254 S.W.3d at
344. The trial court was required to consider, but was not bound by, the statutory
enhancement and mitigating factors. See T.C.A. § 40-35-210(c)(2); Carter, 254 S.W.3d at
344. An appellate court “is bound by the trial court’s decision as to the length of the sentence
imposed so long as it is imposed in a manner consistent with the purposes and principles set
out in sections -102 and -103 of the Sentencing Act.” Carter, 254 S.W.3d at 346.

       We note that the trial court properly applied enhancement factor (1), that the
Defendant had a previous history of criminal convictions or criminal behavior in addition to
those necessary to establish the appropriate range. See T.C.A. § 40-35-114(1) (Supp. 2009).
Certified copies of nine of the Defendant’s convictions were received into evidence at the
sentencing hearing. The convictions were for driving under the influence, driving on a
revoked license, public intoxication, disorderly conduct, assault and battery, assault, criminal
trespassing, passing a worthless check, and violation of an order of protection.

        We conclude, however, that the trial court misapplied enhancement factor (4). See
id. § 40-35-114(4) (Supp. 2009). Our supreme court has stated that with regard to factor (4),
“the vulnerability enhancement relates more to the natural physical and mental limitations
of the victim than merely to the victim’s age. ” State v. Adams, 864 S.W.2d 31, 35 (Tenn.
1993). A victim may be particularly vulnerable if he or she is “incapable of resisting,
summoning help, or testifying against the perpetrator.” Id. The State bears the burden of
proving the victim’s vulnerability, but the evidence need not be extensive. Id.; State v. Poole,
945 S.W.2d 93, 97 (Tenn. 1997). The application of factor (4) is appropriate if the facts of
the case show that the victim’s vulnerability had some connection to or some influence on
the victim’s inability to resist, to summon help, or to testify against the defendant. State v.
Lewis, 44 S.W.3d 501, 505 (Tenn. 2001) (citing Poole, 945 S.W.2d at 96). A court may also
give additional weight to the age of the victim when the victim is very young or very old.
Id.; Poole, 945 S.W.2d at 97. However, a court may not base the application of factor (4)
solely on a victim’s age. Poole, 945 S.W.2d at 98. In State v. Michael Anthony Maddox,
this court stated that a trial court may apply factor (4) as an enhancement to a conviction for
sexual battery, in which age is an element, if the record demonstrates that the victim was
unable to resist, to summon help, or to testify against the perpetrator.                    No.
M2000-00193-CCA-R3-CD, Marshall County, slip op. at 3 (Tenn. Crim. App. Sept. 22,
2000) (citing State v. Walton, 958 S.W.2d 724, 729 (Tenn. 1997)).

       The trial court erred when it applied factor (4) because it made no factual findings that
the victim was particularly vulnerable, other than to state that it based the enhancement on
“the mental condition of the victim.” The State argued at the trial that the victim’s
medication rendered her particularly vulnerable because it caused her to sleep. However,

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the victim testified at the trial that she was awakened by the Defendant and Ms. Hicks’s
argument, that she went into the kitchen, and that she returned to her room and turned on the
television. Nothing in the record supports the conclusion that the victim’s medication made
her incapable of resisting, of summoning help, or of testifying against the Defendant. We
conclude that the record does not support the application of factor (4).

                                 3. Alternative Sentencing

       When determining if confinement is appropriate, a trial court should consider whether
(1) confinement is necessary to protect society by restraining a defendant who has a long
history of criminal conduct, (2) confinement is necessary to avoid depreciating the
seriousness of the offense or confinement is particularly suited to provide an effective
deterrence to people likely to commit similar offenses, or (3) measures less restrictive than
confinement have frequently or recently been applied unsuccessfully to the defendant.
T.C.A. § 40-35-103(1)(A)-(C). The trial court may also consider a defendant’s potential or
lack of potential for rehabilitation and the mitigating and enhancement factors set forth in
Tennessee Code Annotated sections 40-35-113 and -114. T.C.A. §§ 40-35-103(5),
-210(b)(5); State v. Boston, 938 S.W.2d 435, 438 (Tenn. Crim. App. 1996). “The sentence
imposed should be the least severe measure necessary to achieve the purposes for which the
sentence is imposed.” T.C.A. § 40-35-103(4). If a defendant is an especially mitigated or
standard offender convicted of a Class C, D, or E felony, he or she should be considered a
favorable candidate for alternative sentencing in the absence of evidence to the contrary.
T.C.A. § 40-35-102(6).

       In the present case, the Defendant was considered to be a favorable candidate for
alternative sentencing for the attempted sexual battery by an authority figure conviction, a
Class D felony. However, the trial court found that the Defendant was not amenable to
rehabilitation. According to the psychosexual evaluation, the Defendant required maximum
supervision and was considered at maximum risk for violence and for re-offending if
released into the community. Based upon this proof, the trial court did not err in finding that
the Defendant should serve his sentence in the Department of Correction.

       In consideration of the foregoing and the record as a whole, we reverse the
Defendant’s conviction for sexual battery by an authority figure, and we remand the case for
a new trial.

                                                    ___________________________________
                                                    JOSEPH M. TIPTON, PRESIDING JUDGE




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