            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT NASHVILLE            FILED
                         DECEMBER 1998 SESSION
                                                       February 24, 1999

                                                      Cecil W. Crowson
                                                     Appellate Court Clerk
STATE OF TENNESSEE,                )
                                   )   C.C.A. NO. 01C01-9709-CR-00401
            Appellee,              )
                                   )    DAVIDSON COUNTY
VS.                                )
                                   )    HON. CHERYL BLACKBURN,
ROSS C. AUSTIN,                    )    JUDGE
                                   )
            Appellant.             )    (Sexual Battery)



FOR THE APPELLANT:                     FOR THE APPELLEE:


LIONEL R. BARRETT, JR.                 JOHN KNOX WALKUP
Washington Square Two, Suite 418       Attorney General & Reporter
222 Second Ave., North
Nashville, TN 37201                    DARYL J. BRAND
                                       Asst. Attorney General
                                       Cordell Hull Bldg., 2nd Fl.
                                       425 Fifth Ave., North
                                       Nashville, TN 37243-0493

                                       VICTOR S. JOHNSON, III
                                       District Attorney General

                                       SHARON BROX
                                       Asst. District Attorney General
                                       Washington Square, Suite 500
                                       222 Second Ave., North
                                       Nashville, TN 37201-1649




OPINION FILED:



AFFIRMED


JOHN H. PEAY,
Judge
                                     OPINION



             On February 24, 1997, the defendant was found guilty by a jury of sexual

battery. The defendant was subsequently sentenced as a Range II multiple offender to

four years to be served in the Tennessee Department of Correction. The defendant’s

motion for a new trial was denied by the trial court. The defendant now appeals and

contends that the evidence was insufficient to support his conviction and that his

sentence is excessive. After a review of the record and the applicable law, we affirm the

judgment of the court below.



             The defendant was convicted of sexual battery based on his involvement

with a sixteen-year-old employee. The defendant owned and operated a barber shop.

On or about June 3, 1995, the defendant, while passing out flyers, approached the victim

and offered her a job. The victim accepted the offer and on Monday, June 5, went to the

defendant’s barber shop to begin her new job. According to the victim, upon arrival she

noticed slow music playing in the background. The defendant then showed the victim his

computer and the handwritten pages to be typed. As the defendant was deciphering his

handwriting for the victim, he began to rub her leg. The victim told the defendant she

would work for him, but she did not want him to touch her. At this point, someone

knocked on the door and, after talking to the person for a moment, the defendant shut

and locked the door. The defendant then walked back to the victim and began to touch

her breasts. The victim jumped up, told the defendant she was leaving, unlocked the

door, and ran home. The victim notified the police and they set up a recorded phone call

to the defendant. During the course of the phone call, the victim asked the defendant

why he had touched her breasts. The defendant answered, “[C]ause they look good to

me baby.”



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               The defendant contends that the evidence was insufficient to support a

conviction for sexual battery. The defendant argues that there was not enough evidence

to prove the elements of force or coercion beyond a reasonable doubt.



               A defendant challenging the sufficiency of the proof has the burden of

illustrating to this Court why the evidence is insufficient to support the verdict returned by

the trier of fact in his or her case. This Court will not disturb a verdict of guilt for lack of

sufficient evidence unless the facts contained in the record and any inferences which

may be drawn from the facts are insufficient, as a matter of law, for a rational trier of fact

to find the defendant guilty beyond a reasonable doubt. State v. Tuggle, 639 S.W.2d

913, 914 (Tenn. 1982).



               When an accused challenges the sufficiency of the convicting evidence, we

must review the evidence in the light most favorable to the prosecution in determining

whether “any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). We do not

reweigh or re-evaluate the evidence and are required to afford the State the strongest

legitimate view of the proof contained in the record as well as all reasonable and

legitimate inferences which may be drawn therefrom. State v. Cabbage, 571 S.W.2d

832, 835 (Tenn. 1978).



               The defendant contends that there was no evidence of force or coercion

and, as this is an essential element of sexual battery, his conviction should be set aside

and the cause remanded back to the trial court for the entry of an order of guilt as to the

lesser included offense of simple assault. See T.C.A. §39-13-505(a) (1991); §39-13-

503(a)(1) (1991). However, there is evidence indicating that the defendant continued to



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touch the victim after she asked him to stop. He subsequently locked the door of the

barber shop, walked up behind the victim, and squeezed her breasts “real hard.” The

defendant was also much larger and taller than the victim. In light of the foregoing, a

rational trier of fact could have found the elements of force or coercion beyond a

reasonable doubt. As such, this contention is without merit.



              The defendant next contends that the trial court erroneously applied

enhancement factor fifteen and that, due to this error, his sentence should be reduced

from four to three years. When a defendant complains of his or her sentence, we must

conduct a de novo review with a presumption of correctness. T.C.A. §40-35-401(d). The

burden of showing that the sentence is improper is upon the appealing party. T.C.A. §40-

35-401(d) Sentencing Commission Comments.             This presumption, however, “is

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

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

S.W.2d 166, 169 (Tenn. 1991).



              The Sentencing Reform Act of 1989 established a number of procedures

to be followed in sentencing.   This section mandates the court’s consideration of the

following:

              (1) The evidence, if any, received at the trial and the sentencing
              hearing; (2) [t]he presentence report; (3) [t]he principles of sent-
              encing and arguments as to sentencing alternatives; (4) [t]he
              nature and characteristics of the criminal conduct involved; (5)
              [e]vidence and information offered by the parties on the enhance-
              ment and mitigating factors in §§ 40-35-113 and 40-35-114; and
              (6) [a]ny statement the defendant wishes to make in his own be-
              half about sentencing.

T.C.A. § 40-35-210.



              In addition, this section provides that the minimum sentence within the


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range is the presumptive sentence. If there are enhancing and mitigating factors, the

court must start at the minimum sentence in the range and enhance the sentence as

appropriate for the enhancement factors and then reduce the sentence within the range

as appropriate for the mitigating factors. If there are no mitigating factors, the court may

set the sentence above the minimum in that range but still within the range. The weight

to be given each factor is left to the discretion of the trial judge. State v. Shelton, 854

S.W.2d 116, 123 (Tenn. Crim. App. 1992).



              In the case at bar, the defendant was convicted of a Class E felony as a

Range II offender, which carries a sentencing range of two to four years. T.C.A. §40-35-

112(b)(5). In determining the defendant’s sentence, the trial court found four applicable

enhancement factors. The court found that the defendant had a previous history of

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

appropriate range. T.C.A. § 40-35-114(1). The court also found that the offense involved

a victim and was committed to gratify the defendant’s desire for pleasure or excitement.

T.C.A. § 40-35-114(7). The court found that the felony was committed while the

defendant was on parole for a prior felony conviction. T.C.A. § 40-35-114(13). The court

further found that the defendant abused a position of private trust. T.C.A. § 40-35-

114(15). The defendant only challenges the trial court’s application of the last factor.



              The defendant contends that someone in the position of an employer for

a short period of time is not in a position of private trust. This issue is waived as the

defendant has failed to cite any authority to support his argument. Rules of the Court of

Criminal Appeals of Tennessee 10(b); State v. Killebrew, 760 S.W.2d 228, 231 (Tenn.

Crim. App. 1988).




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              In the absence of waiver, the defendant’s argument still fails. This Court

has held that a position of private trust is violated when a defendant uses his or her

supervisory position to facilitate the commission of the offense. State v. Harris, 866

S.W.2d 583, 588 (Tenn. Crim. App. 1992). The defendant in the case at issue used his

position as the victim’s employer to lure her into the barber shop, lock the door, and get

close enough to her to commit sexual battery. Therefore, the violation of a private trust

is an applicable enhancement factor in this case and the defendant’s contention is

without merit.



              Accordingly, we affirm the defendant’s conviction and sentence.




                                                 ______________________________
                                                 JOHN H. PEAY, Judge



CONCUR:



______________________________
JOSEPH M. TIPTON, Judge



______________________________
NORMA McGEE OGLE, Judge




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