         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                          Assigned on Briefs November 27, 2001

                   STATE OF TENNESSEE v. ALAN PARRIGAN

                   Direct Appeal from the Circuit Court for Wayne County
                            No. 12345    Robert L. Jones, Judge



                  No. M2001-00342-CCA-R3-CD - Filed September 27, 2002


The appellant, Alan Parrigan, was convicted of the offense of aggravated sexual battery. He received
a sentence of ten years incarceration to be served consecutively to a sentence he was serving at the
time of the commission of the instant offense. On appeal he raises three errors for our consideration.
First, the appellant maintains that the trial court erred in failing to instruct the jury on the lesser
included offenses of child abuse and neglect. Second, he alleges that the evidence is insufficient to
support the verdict. Finally, the appellant contends consecutive sentencing is unwarranted in his
case. After a thorough review of the record, we find that although the failure to instruct the jury on
the lesser-included offenses of child abuse and neglect was error, the error is harmless beyond a
reasonable doubt. In addition, we find that the evidence is sufficient to support the verdict and that
consecutive sentencing is fully supported by the record. Accordingly, the judgment of the trial court
is affirmed.

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

JERRY L. SMITH, J., delivered the opinion of the court, in which DAVID H. WELLES and NORMA
MCGEE OGLE , JJ., joined.

C. Michael Robbins, Memphis, Tennessee, on appeal and Beverly White, Assistant Public Defender,
Pulaski, Tennessee, at trial and on appeal, for appellant, Alan Parrigan.

Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney, Assistant Attorney General;
Mike Bottoms, District Attorney General; and J. Douglas Dicus, Assistant District Attorney General,
for appellee, State of Tennessee.
                                                         OPINION

         On March 2, 2000, the victim in this case, eight-year-old N.B. 1, along with his thirteen-year-
old brother and his mother traveled to the South Central Prison Facility to visit the appellant. During
the visit N.B. sat on the appellant’s lap with his mother and brother sitting opposite them at the same
table. According to N.B., the appellant unzipped the appellant’s pants, pulled out his penis and put
N.B.’s hand on the penis. Two prison personnel witnessed this incident and immediately intervened.
A third employee of the prison noticed the appellant’s unzipped pants when the appellant was
brought into a search area following the incident.

         The appellant denied any improper behavior. He maintained that the prison employees
mistook a belt buckle shaped in the image of a cobra head for the appellant’s penis. According to
the appellant, N.B. was fascinated by the belt buckle and liked to touch it. N.B.’s brother testified
that he did not notice what the appellant did. N.B.’s mother, who apparently often brought the
appellant drugs during prison visits, stated that she did not see any molestation, but admitted she was
completely “strung out” on drugs on the day of the visit. Two other inmates at the prison testified
that the appellant was wearing the cobra buckle on the day of the visit, and one of the inmates
testified that he did not notice any molestation.


                                                Lesser-Included Offenses

        The appellant contends that the trial court erred in failing to instruct the jury with respect to
the lesser-included offenses of child abuse and neglect. The trial judge did however instruct the jury
with respect to the lesser-included offense of simple assault. It is clear that child abuse and neglect
and Class B misdemeanor assault are lesser-included offenses of any sexual offense if the victim is
a child. Tenn. Code Ann. § 39-15-401(d); State v. Elkins, M2000-01680-SC-R11-CD, 2002 Tenn.
LEXIS 374, at *14-*15 (Tenn. 2002); State v. Swindle, 30 S.W.3d 289, 293 (Tenn. 2000). Therefore
the only remaining questions are whether the evidence warrants the trial judge giving an instruction
on these lesser-included offenses, and, if the answer to this question is yes, if the error is harmless
beyond a reasonable doubt.

        With regard to the first question, we must view evidence presented at trial liberally in the
light most favorable to the existence of the lesser-included offenses, without making any judgments
on the credibility of such evidence. Having done so, we conclude that an instruction on child abuse
and neglect was warranted in this case because the evidence, viewed in this light, is legally sufficient
to support a conviction of child abuse and neglect. See, Elkins, supra. It is true, as the State
suggests, that there is no proof of actual injury to N.B., nor is there any proof that N.B.’s health or
welfare was actually effected by the appellant’s actions. However, in State v. Swindle, discussed
supra, our state supreme court faced a factual scenario very similar to the case at bar. In Swindle the


        1
            It is the po licy of this Court to identify under-age victim s of sexual abuse by initials o nly.

                                                               -2-
defendant was convicted inter alia of aggravated sexual battery for placing her nine-year-old
daughter’s hand on the defendant’s boyfriend’s penis on one occasion and for placing her daughter’s
hand on the daughter’s own genitals while moving the hand up and down at another time. Swindle,
30 S.W.3d at 290. Although there was no evidence of any actual injury to the young girl’s body,
health or welfare, the supreme court found that “a jury could have found that the defendant’s conduct
amounted to child abuse or neglect.” Id. at 293 n.4. Thus, in view of Swindle, we find that a jury
could have found that the appellant’s actions amounted to child abuse and neglect and it was
therefore error to fail to give such an instruction to the jury.

        Next we must address the question of whether the error in failing to instruct the jury on the
lesser-included offenses of child abuse and neglect requires a reversal of this case or whether the
error was harmless beyond a reasonable doubt. State v. Allen, 69 S.W.3d 181, 189 (Tenn. 2002);
State v. Ely, 48 S.W.3d 710, 727 (Tenn. 2001). “In making this determination a reviewing court
should conduct a thorough examination of the record, including the evidence presented at trial, the
defendant’s theory of defense, and the verdict returned by the jury.” Allen, 69 S.W.3d at 191.

        In the instant case the appellant completely denied any improper conduct, claiming rather that
the entire incident was a mistake. Although the appellant denied any wrongdoing, the victim
recounted his molestation and two prison employees testified that they witnessed the appellant
molest N.B. A third prison employee saw that the appellant’s pants were unzipped immediately
following the incident. The defense witnesses could at most testify only that they had noticed
nothing improper, but each conceded that the appellant could have committed the acts alleged
against him without drawing the witness’ attention. The jurors convicted the appellant of aggravated
sexual battery and rejected the lesser offense of simple assault upon which they were instructed.
Because of the defense theory and the strength of the State’s case, we find that the failure to instruct
the jury on the lesser-included offenses of child abuse and neglect was harmless beyond a reasonable
doubt. Therefore, this issue affords the appellant no basis for relief.


                                     Sufficiency of the Evidence

        The appellant next argues that the evidence is insufficient to support the verdict of aggravated
sexual battery. He alleges that there is no proof that placing N.B.’s hand on his penis was for the
purpose of sexual arousal or gratification, as required by Tennessee Code Annotated section 39-13-
501(6).

       In reviewing claims that the evidence is insufficient to support the verdict, an appellate court
must keep in mind certain well-established principles. A jury verdict accredits the State’s witnesses
and resolves all conflicts in favor of the State. State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983).
On appeal the State is given “the strongest legitimate view of the evidence” and all reasonable
inferences flowing therefrom. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). A guilty verdict
removes the presumption of innocence and replaces it with a presumption of guilt on appeal. State



                                                  -3-
v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). An appellant has the burden of overcoming this
presumption.

        Although there is testimony in the record from the appellant and his wife that holding N.B.
on the appellant’s lap was done to disguise a drug transfer to the appellant from N.B’s mother, there
is also proof from the victim and two other eyewitnesses that the appellant moved N.B.’s hand in
such a manner as to manipulate or fondle his penis. Similar behavior has been held sufficient to
establish that the touching was for the purpose of sexual arousal or gratification. See, e.g., Swindle,
30 S.W.3d at 293. We find that there is sufficient evidence for a jury to conclude that the appellant’s
actions were done for the purpose of sexual arousal or gratification. This issue is without merit.


                                       Consecutive Sentencing

         Finally, the appellant maintains that the trial court failed to make any findings on the record
that would justify running the ten year sentence in the instant case consecutively to the sentence that
the appellant was serving at the time of the commission of the instant offense. It is true, as the State
concedes, that the trial court failed to make any findings as to any criteria listed in Tennessee Code
Annotated section 40-35-115 for the imposition of consecutive sentences. Nevertheless, the proof
before this Court is clear that the appellant has a record of criminal activity that is extensive and
justifies the imposition of consecutive sentencing pursuant to Tennessee Code Annotated section 40-
35-115(b)(2).
         The presentence report in the record reflects that the appellant has several drug-related
convictions spanning an eleven year period from 1987 to 1998. He admitted to having his wife
deliver drugs to him while he was incarcerated. He was serving a sentence for a felony drug offense
when the instant offense was committed. Finally, he was convicted in 1999 for possession of a
weapon by a convicted felon. The propriety of consecutive sentences is apparent in the record of this
case. This issue is without merit.

                                             Conclusion

       In light of the foregoing, the judgment of the trial court is affirmed.




                                                        ___________________________________
                                                        JERRY L. SMITH, JUDGE




                                                  -4-
