           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT JACKSON
                                     Assigned on Briefs May 6, 2003

                       STATE OF TENNESSEE v. JONATHAN DEAN

                       Direct Appeal from the Circuit Court for Obion County
                              No. 2-153   William B. Acree, Jr., Judge



                         No. W2002-02422-CCA-R3-CD - Filed June 10, 2003


In a bench trial, the Obion County trial court convicted the defendant, Jonathan Dean, of sexual
battery and sentenced him to two years in the Department of Correction. On appeal, the defendant
contends (1) the evidence was insufficient to support his conviction, and (2) his sentence is excessive.
Upon review of the record and the applicable law, we affirm the judgment of the trial court.

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

JOE G. RILEY, J., delivered the opinion of the court, in which DAVID G. HAYES and JOHN EVERETT
WILLIAMS, JJ., joined.

Clifford K. McGown, Jr., Waverly, Tennessee (on appeal); Joseph P. Atnip, District Public Defender;
and William K. Randolph, Assistant District Public Defender (at trial), for the appellant, Jonathan
Dean.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General;
Thomas A. Thomas, District Attorney General; and Kevin David McAlpin, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                                      OPINION

       The defendant’s conviction for sexual battery arose out of events which occurred on
February 18, 2002, between the defendant and the victim, R.E.,1 a thirteen-year-old female. Gloria
Easley, the victim’s mother, testified she and the defendant’s wife, Janice Dean, worked together,
and the defendant had accompanied Mrs. Dean to Ms. Easley’s residence on approximately five
previous occasions.

       Ms. Easley testified that on February 17th, she had a telephone conversation with Mrs. Dean
regarding two rooms in her residence which she wanted painted. Mrs. Dean informed her that the



       1
           It is this court’s policy to use initials rather than full names of minor victims of sexual abuse.
defendant would paint the rooms for $50.00. Ms. Easley stated the quoted price was too high and
declined the offer. She denied inviting the defendant to her residence in order to inspect the rooms.

         Ms. Easley testified that on February 18th, she remained at her home with her four children,
who did not attend school that day due to a holiday. At approximately 4:30 p.m., Ms. Easley went
to visit a friend while the children remained at the residence. When she returned approximately
thirty minutes later, R.E. was “hysterical” when she met her at the front door. R.E. told her that the
defendant sexually molested her.

        Ms. Easley stated that upon learning of the incident, she became “upset” and “highly
agitated.” She and R.E. went to Mrs. Dean’s place of employment and confronted her with the
allegations. Upon returning to the residence, Ms. Easley called the police.

        R.E. testified that five to ten minutes after Ms. Easley left the residence, the defendant
arrived with his son. The defendant’s son played with R.E.’s twin brothers (“the twins”), and R.E.’s
younger brother (“the brother”) was in his bedroom. R.E. sat on a couch in the living room, while
the defendant watched television and drank a beer. R.E. stated the defendant asked her which
channel was the “bootie-shakin” channel. He then requested she sit on an ottoman close to where
he was sitting, and R.E. complied with his request.

        R.E. testified the defendant asked her whether she had a boyfriend and whether she was “hot
and fast.” The defendant then placed his arm around R.E. and pulled her against his chest. He then
began rubbing her breasts and rested his hand “in between [her] private.” R.E. testified she was
afraid. The defendant stated, “Do you wanna touch my private? Do you wanna feel how fat it is?”
When R.E. said “No,” the defendant grabbed her hand and attempted to force her to touch him. R.E.
stated she touched his stomach instead. She then ran into her brother’s bedroom and related the
events to him.

        R.E. stated that by the time she and her brother exited his bedroom, the defendant had gone,
leaving his son at the residence. Approximately five minutes later, the defendant returned to retrieve
his son, and R.E’s brother accused him of touching R.E. in an inappropriate manner. The defendant
stated they were “trippin” and that he merely gave her a hug. The defendant told R.E. and her
brother that they would get into trouble and that no one would believe them. The defendant then
retrieved his son and left. Ms. Easley returned to the residence approximately five minutes later.

        R.E’s brother, who was eleven years old when the incident occurred, testified that on
February 18th, after Ms. Easley left to visit a friend, the defendant arrived at the residence
accompanied by his son. The defendant’s son and the twins played in his bedroom, while R.E. went
into the living room. The brother stated that a short time later, R.E. came into his bedroom and said
the defendant “touched [her] breasts and [her] private.” The brother described R.E. as “hysterical”
and stated he had to calm her. The brother stated he became angry and entered the living room;
however, the defendant had gone, leaving his son at the residence. The brother testified that when
the defendant returned a short time later, he confronted the defendant with R.E.’s allegations. The
defendant denied touching R.E., retrieved his son, and left the residence.


                                                 -2-
       Janice Dean, the defendant’s wife, testified she had known Ms. Easley for four to five years,
and they worked together. Mrs. Dean stated Ms. Easley never had anything nice to say about the
defendant. According to Mrs. Dean, on February 17th, Ms. Easley called her and inquired about the
amount of money the defendant would charge to paint two rooms. Mrs. Dean said the defendant
told Ms. Easley he charged $25.00 per room, and Ms. Easley told the defendant to only paint one
room. Mrs. Dean stated the defendant told Ms. Easley he would come to her house the next day at
approximately 3:00 p.m.

       Mrs. Dean testified that on February 18th, at approximately 6:00 p.m., Ms. Easley came to
speak to her while she was at her place of employment. Ms. Easley was crying and told Mrs. Dean
to keep the defendant away from her family. She informed Mrs. Dean that the defendant had
touched R.E. and told R.E. to touch him. Mrs. Dean told Ms. Easley to “take care of [R.E.],” and
Ms. Easley left.

        The defendant testified he had been to Ms. Easley’s residence on previous occasions with
his wife, and he knew her children. The defendant stated that on February 18th, at approximately
2:45 p.m., he went to Ms. Easley’s residence in order to paint “a couple of rooms” for her. He
maintained Ms. Easley knew he was coming to the residence due to a conversation she had with
Mrs. Dean on the previous night. When he inquired about Ms. Easley, R.E. informed him that she
was not at the residence, and as the defendant was leaving, R.E. asked him to stay and wait for her.

       The defendant testified he remained at the residence for approximately twenty minutes
drinking a beer and waiting for Ms. Easley to return. He sat in a chair in the living room, and his
son and the twins sat beside him. While the defendant gave the twins a hug and spoke to them, R.E.
sat down beside him. The defendant stated that after he finished drinking his beer, he left the
residence at approximately 3:15 p.m., while his son remained at the residence to play with the twins.
Upon leaving the residence, the defendant went to Sammy Warren’s residence where he remained
for approximately one and one-half hours.

        The defendant testified that when he returned to the residence at approximately 4:50 p.m.,
Ms. Easley had not yet arrived. Upon entering the driveway, R.E. and her brother, who were outside
playing basketball, approached his vehicle. R.E. stated she intended to tell Ms. Easley that her
brother broke his glasses. The defendant stated that after he observed that her brother’s glasses were
not broken, he informed R.E. that they would get in trouble if she told Ms. Easley, because they
were not supposed to be outside. R.E. then stated she intended to tell Ms. Easley that the defendant
touched her. The defendant testified that upon hearing this, he retrieved his son and left the
residence.

       The defendant denied touching R.E. at any time. He further denied being alone with the
victim while he was at the residence. Rather, he maintained his son and the twins were in the living
room with them.

       The trial court specifically accredited the victim’s testimony and convicted the defendant of
sexual battery. The trial court sentenced the defendant to two years incarceration as a Range I
standard offender.

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                                         I. SUFFICIENCY

        The defendant contends the evidence was insufficient to support his conviction for sexual
battery. We disagree.

A. Standard of Review

       The state is afforded the strongest legitimate view of the evidence and all reasonable
inferences that may be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). In
determining whether the evidence was sufficient, the relevant question on appeal is whether, after
viewing the evidence in the light most favorable to the state, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt. State v. Evans, 838 S.W.2d
185, 190-91 (Tenn. 1992).

        Although this was a bench trial, the findings of the trial judge carry the same weight as a jury
verdict. State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim. App. 1999). Questions concerning the
credibility of the witnesses and the weight and value to be given their testimony are matters
entrusted to the trial judge as the trier of fact. State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim.
App. 1987). Accordingly, we may neither reweigh nor reevaluate the evidence. Cabbage, 571
S.W.2d at 835.

B. Analysis

        As applicable to the case at bar, “sexual battery” is defined as “unlawful sexual contact with
a victim by the defendant or the defendant by a victim” accomplished by force or coercion. Tenn.
Code Ann. § 39-13-505(a)(1). “Sexual contact” involves

       the 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.

Id. § 39-13-501(6).

        In the case at bar, R.E. testified the defendant asked her whether she had a boyfriend and
whether she was “hot and fast.” He then placed his arm around her, pulled her up to his chest,
rubbed her breasts, and rested his hand “in between [her] private.” Both R.E.’s brother and Ms.
Easley described R.E. as “hysterical” after the incident occurred. We conclude the evidence was
sufficient to support the defendant’s conviction for sexual battery.

        In his brief, the defendant alleged various inconsistencies in the testimony of the state’s
witnesses. However, none of these alleged inconsistencies relate to the elements of the offense of
sexual battery. Rather, these questions involve the credibility of the witnesses, which is a matter
within the purview of the trial judge as the trier of fact. See Pappas, 754 S.W.2d at 623. This issue
is without merit.

                                                  -4-
                                             II. SENTENCING

        The defendant next contends that his sentence is excessive. Again, we disagree.

A. Sentencing Hearing

       During the sentencing hearing, the defendant testified he was thirty-eight years old, married,
and had three children. He gave a statement to the probation officer for the presentence report in
which he denied committing the offense, and, during the hearing, he continued to maintain his
innocence. The defendant admitted he was untruthful to the probation officer regarding where he
attended high school. During his testimony, the defendant further denied criminal wrongdoing as
to two prior drug possession convictions and a prior conviction for driving under the influence.

       The defendant requested the trial court grant him probation or some form of alternative
sentencing. He maintained he was not a threat or danger to society and expressed his desire to
support his family. Janice Dean, the defendant’s wife, also requested the trial court consider his
family’s needs in imposing a sentence.

B. Trial Court’s Findings

        The trial court sentenced the defendant to two years incarceration as a Range I standard
offender. The trial court applied enhancement factor (1), “[t]he defendant has a previous history of
criminal convictions or criminal behavior in addition to those necessary to establish the appropriate
range,” and enhancement factor (4), “[a] victim of the offense was particularly vulnerable because
of age or physical or mental disability.” See Tenn. Code Ann. § 40-35-114(1), (4) (1997).2 The trial
court found no mitigating factors applied. It then properly recognized the offense of sexual battery
to be a Class E felony with a presumptive sentence of one year. See Tenn. Code Ann. § 39-13-
505(c). However, after applying the two enhancement factors, the trial court imposed a two-year
sentence.

         The trial court found that although the defendant was presumed to be a favorable candidate
for alternative sentencing, the state produced sufficient evidence to rebut this presumption. The trial
court found confinement was necessary to protect society from the defendant, who had a long
history of criminal conduct; confinement was necessary to avoid depreciating the seriousness of the
offense; and less restrictive measures have been unsuccessfully applied to the defendant. The trial
court noted the defendant expressed no remorse and was incapable of rehabilitation. It then ordered
the defendant’s sentence be served in incarceration.




        2
          The 20 02 amend ment added present (1), “[t]he offense was an act of terrorism,” and renumbered former (1)
through (22) as p resent (2) thro ugh (2 3), resp ectively.

                                                        -5-
C. Standard of Review

         When a defendant challenges the length, range, or manner of service of a sentence, this court
conducts a de novo review of the record with a presumption that the determinations made by the
sentencing court are correct. Tenn. Code Ann. § 40-35-401(d) (1997). If our review reflects that
the trial court followed the statutory sentencing procedure, imposed a lawful sentence after duly
considering and weighing the factors and principles set out under the sentencing law, and its findings
are adequately supported by the record, then we may not disturb the sentence even if we would have
preferred a different result. State v. Hooper, 29 S.W.3d 1, 5 (Tenn. 2000). However, if the trial
court failed to comply with the statutory guidelines, we must review the sentence de novo without
a presumption of correctness. State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997).

D. Analysis

        In his brief, the defendant contends the trial court erred in imposing the maximum sentence
of two years. However, the only arguments the defendant makes in support of his contentions are
that “Mr. Dean had a good marriage” and “His children need him.” Because the defendant has
failed to include sufficient argument in his brief regarding the basis upon which the trial court
allegedly erred, this issue is waived. See Tenn. Ct. Crim. App. R. 10(b).

        However, upon reviewing the record, we conclude the trial court erred in applying
enhancement factor (4), the offense involved a victim who was “particularly vulnerable because of
age or physical or mental disability.” Tenn. Code Ann. § 40-35-114(4) (1997); see State v. Lewis,
44 S.W.3d 501, 505 (Tenn. 2001) (noting that the application of enhancement factor (4) is
appropriate provided the vulnerabilities of the victim relate to “an inability to resist the crime,
summon help, or testify at a later date”); State v. Adams, 864 S.W.2d 31, 35 (Tenn. 1993) (holding
that this enhancement factor “relates more to the natural physical and mental limitations of the
victim than merely to the victim’s age”). In applying this enhancement factor, the trial court stated
the defendant was a friend of the victim’s family, and the victim was “quite young.” We conclude
the victim’s age, under the facts and circumstances of this case, did not justify application of this
enhancement factor.

        We conclude the trial court properly applied enhancement factor (1) due to the defendant’s
prior history of criminal convictions. See Tenn. Code Ann. § 40-35-114(1) (1997). The defendant’s
presentence report reveals the defendant has a prior misdemeanor drug conviction, a prior felony
drug conviction, a disorderly conduct conviction, a DUI conviction, two convictions for driving
without a license, nineteen speeding violations, and seven seat belt violations. The defendant’s
extensive history of criminal conduct warrants the strong application of this enhancement factor.

        The wrongful application of one or more enhancement factors by the trial court does not
necessarily lead to a reduction in the length of the sentence. State v. Winfield, 23 S.W.3d 279, 284
(Tenn. 2000). This determination requires that we review the evidence supporting any remaining
enhancement factors, as well as the evidence supporting any mitigating factors. State v. Imfeld, 70
S.W.3d 698, 707 (Tenn. 2002). In reviewing the record de novo, we place great weight on enhancement
factor (1) and decline to disturb the two-year sentence.

                                                 -6-
                                     III. CONCLUSION

        We conclude the evidence was sufficient to support the defendant’s conviction for sexual
battery. Furthermore, the defendant’s two-year sentence is not excessive. Accordingly, we affirm
the judgment of the trial court.



                                                    ___________________________________
                                                    JOE G. RILEY, JUDGE




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