           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT JACKSON
                                             March 6, 2007 Session

               STATE OF TENNESSEE v. KENNETH EARL WHITTEN

                     Direct Appeal from the Circuit Court for Hardeman County
                             No. 05-01-0144   J. Weber McCraw, Judge



                           No. W2006-01201-CCA-R3-CD - Filed May 8, 2007


The defendant, Kenneth Earl Whitten, was convicted of aggravated sexual battery, a Class B felony,
and sentenced as a violent offender to ten years in the Department of Correction. He appeals three
issues: (1) the sufficiency of the evidence; (2) whether child abuse should have been charged as a
lesser-included offense; and (3) whether the trial court erroneously applied enhancement or
mitigating factors in sentencing the defendant. Following our review, we affirm the judgment of the
trial court but modify the defendant’s sentence to eight years.

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

ALAN E. GLENN , J., delivered the opinion of the court, in which DAVID G. HAYES and JERRY L.
SMITH , JJ., joined.

Gary F. Antrican, District Public Defender; and David S. Stockton, Assistant Public Defender, for
the appellant, Kenneth Earl Whitten.

Robert E. Cooper, Jr., Attorney General and Reporter; Brian Clay Johnson, Assistant Attorney
General; D. Michael Dunavant, District Attorney General; and Joe VanDyke, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                                       OPINION

                                                         FACTS

       The defendant was indicted for allegedly having sexual contact with his six-year-old
neighbor, C.W.1




       1
           This court’s policy is to refer to minor victims of sexual abuse by their initials.
        At trial, Brandy West, the victim’s mother, testified that she had known the seventy-one-year-
old defendant for several years, that he was a friend of her father’s, and that she “trusted him with
[her] kids.” Prior to the incident, the defendant had lived with West and her children “for a while”
before moving into the trailer next door. Asked about the defendant’s drinking, West said, “He
always drank. He woke up drinking and went to sleep drinking.” On June 2, 2005, the defendant
came to West’s house and asked to take her children to his house to see his kittens. After “[a]bout
ten minutes,” West went to the defendant’s trailer to check on the children and found the door
“cracked open.” She described observing C.W. and the defendant:

       Everybody was inside. I opened the door. I didn’t knock. And when I opened the
       door I seen [sic] him having my little girl touch him. I told [C.W.] . . . to get out of
       the trailer. He jerked up his pants and I told him not to step one foot in my yard near
       me or my kids again and I was going to call the law and he was going to jail.

West said that the defendant’s blue jeans and underwear “were around his knees and he was holding
up his shirt . . . to show his private,” and C.W. “was touching his penis.” She did not see any
additional clothes that the defendant could have been changing into. West said that C.W. was six
years old at the time and that her son, who was then four years old, was also in the room.

       Prior to this event, C.W. had never mentioned “any sexual topics” to West, nor had West ever
had any problems with C.W. “sexually acting out.” However, since the incident, C.W. had “sexually
acted out at a friend’s house and at school,” and West had “to take her to counseling for it.”

        Sergeant Billy Davis of the Hardeman County Sheriff’s Department testified that on the day
after the incident, he assisted in taking the defendant’s statement. Sergeant Davis related the
substance of the defendant’s statement in a question and answer format:

              Question, “On 06/02/05 [were C.W.] and [her brother] at your residence at
       35 Gull Street?” Answer, “Yeah.” Question, “Did [C.W.] grab your penis while at
       your residence on 06/02/05?” Answer, “I wouldn’t say she grabbed it. She just
       touched it.” Question, “What were you doing when [C.W.] touched your penis?”
       Answer, “I was going to change clothes.” Question, “What [were C.W.] and [her
       brother] doing at your residence on 06/02/05?” Answer, “They came over there to
       play with the cats.” Question, “How many times did [C.W.] touch your penis?”
       Answer, “Once, just for a second.” . . .

              . . . “Were you intoxicated at the time [C.W.] touched your penis?” Answer,
       “I would say yes.” Question, “Did [C.W.’s] mother, Brandy West, walk in when
       [C.W.] was touching your penis?” Answer, “She didn’t even come in the house.”

        Investigator Mike Kennamore, also of the Hardeman County Sheriff’s Department, testified
that the defendant initially said that “nothing had happened” at his home.



                                                 -2-
       The defendant testified that he invited C.W. and her brother to his home that night but did
not know they were still there when he began changing clothes:

       [The children] wanted to come over and look at the kitty cats but I thought they had
       gone home when I started to change clothes. I thought they went home. The door
       was wide open and I proceeded – that’s the reason I had my pants pulled, to change
       clothes. And I can’t add to that or take from it.

        The defendant acknowledged that he had consumed “a few beers” that night. Asked if he had
encouraged C.W. to touch his penis, he said, “No, sir, I sure didn’t.” As to whether he had any
intention of having sexual contact with her, the defendant said, “Lord have mercy, no. Never.”
Asked why he did not pull up his pants when he saw C.W., the defendant said, “I just turned around
like that right there and she was right there touching it. Now, that’s the way it was. Yes, sir, that’s
the way it was.”

                                            ANALYSIS

                                  I. Sufficiency of the Evidence

       On appeal, the defendant argues that his conviction was not supported by sufficient evidence.

        In consideration of this issue, we apply the rule that where sufficiency of the convicting
evidence is challenged, the relevant question of the reviewing court 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, 99 S. Ct. 2781, 2789 (1979); see also Tenn. R. App. P. 13(e); State v. Evans, 838 S.W.2d 185,
190–92 (Tenn. 1992). This rule applies when the determination of guilt is based upon direct
evidence, circumstantial evidence, or a combination of both direct and circumstantial evidence.
State v. Pendergrass, 13 S.W.3d 389, 392–93 (Tenn. Crim. App. 1999) (citing State v. Dykes, 803
S.W.2d 250, 253 (Tenn. Crim. App. 1990)).

       All questions involving the credibility of witnesses, the weight and value to be given the
evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas, 754 S.W.2d
620, 623 (Tenn. Crim. App. 1987). Our supreme court stated the rationale for this rule:

               This well-settled rule rests on a sound foundation. The trial judge and the
       jury see the witnesses face to face, hear their testimony and observe their demeanor
       on the stand. Thus the trial judge and jury are the primary instrumentality of justice
       to determine the weight and credibility to be given to the testimony of witnesses. In
       the trial forum alone is there human atmosphere and the totality of the evidence
       cannot be reproduced with a written record in this Court.




                                                 -3-
Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d 523 (Tenn.
1963)). Additionally, a jury conviction removes the presumption of innocence with which a
defendant is initially cloaked and replaces it with one of guilt, so that on appeal, a convicted
defendant has the burden of demonstrating that the evidence is insufficient. See State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982).

        To argue the insufficiency of the evidence in the present case, the defendant asserts that the
proof in this case is circumstantial and there was “no direct evidence that [he] induced, coerced,
persuaded or even anticipated being inappropriately touched by the [victim].” Further, he contends
that “[o]nly by sheer speculation and conjecture, could any reasonable juror determine whether or
not the [defendant] had somehow persuaded the alleged victim to touch his penis.” We will review
this argument.

       Aggravated sexual battery is defined as:

       [U]nlawful sexual contact with a victim by the defendant or the defendant by a victim
       accompanied by any of the following circumstances:

              (1) Force or coercion is used to accomplish the act and the defendant is armed
       with a weapon or any article used or fashioned in a manner to lead the victim
       reasonably to believe it to be a weapon;

               (2) The defendant causes bodily injury to the victim;

               (3) The defendant is aided or abetted by one (1) or more other persons; and

                       (A) Force or coercion is used to accomplish the act; or

                       (B) The defendant knows or has reason to know that the victim is
                       mentally defective, mentally incapacitated or physically helpless; or

               (4) The victim is less than thirteen (13) years of age.

Tenn. Code Ann. § 39-13-504(a) (2006) (emphasis added).

       As used in the foregoing statute, “sexual contact” includes the intentional touching of the
defendant’s intimate parts, if that intentional touching can be reasonably construed as being for the
purpose of sexual arousal or gratification. Tenn. Code Ann. § 39-13-501(6) (2006) (emphasis
added); see also Tenn. Code Ann. § 39-13-501(2) (2006) ( including “the primary genital area . . .
of a human being” within the statutory definition of “intimate parts”).

       It is undisputed both that the victim in this case was six years old at the time of the incident
and that she touched the defendant’s penis. Thus, the relevant inquiry is whether the evidence


                                                 -4-
sufficiently supports the jury’s finding that the touching could be reasonably construed as being for
the purpose of sexual arousal or gratification.

        Saying that she saw the defendant “having [the victim] touch him,” West contradicted the
defendant’s assertion that the touching spontaneously occurred while he was changing clothes. By
its verdict, the jury accredited West’s testimony, and the record supports this determination.
Moreover, viewed in the light most favorable to the prosecution, the circumstances of the touching,
including the fact that the defendant was alone with the children and was “holding up his shirt” while
C.W. touched his penis, coupled with West’s reactions to what she saw, support a reasonable
inference that the defendant wanted C.W. to touch his penis and that the touching was for the
purpose of sexual arousal or gratification. See State v. Hayes, 899 S.W.2d 175, 180 (Tenn. Crim.
App. 1995) (concluding that the circumstances under which the defendant rubbed the victim’s breast,
including the way he kissed her, “the timing of the events when the mother was not present, the
location of the events, the state of dress of the defendant and the victim, and how the physical contact
occurred,” were “sufficient for a rational trier of fact to find beyond a reasonable doubt that the
touching was intentional and for the purpose of sexual arousal or gratification”). This issue is
without merit.

                    II. Whether the Trial Court Erred by Not Instructing
                     the Jury on Lesser-Included Offense of Child Abuse

        The defendant also argues that the trial court erred by refusing to instruct the jury on the
lesser-included offense of child abuse pursuant to Tennessee Code Annotated section 39-15-401(e).
However, as the State contends, the defendant has waived appellate review of this issue by failing
to request in writing that child abuse be charged as a lesser-included offense. Tenn. Code Ann. §
40-18-110(b)-(c) (2006); State v. Page, 184 S.W.3d 223, 229 (Tenn. 2006). Tennessee Code
Annotated section 40-18-110 (c) states that a defendant cannot present the failure to instruct the jury
on a lesser-included offense as a ground for relief on appeal unless the instruction was requested in
writing at trial:

               Notwithstanding any other provision of law to the contrary, when the
       defendant fails to request the instruction of a lesser included offense as required by
       this section, the lesser included offense instruction is waived. Absent a written
       request, the failure of a trial judge to instruct the jury on any lesser included offense
       may not be presented as a ground for relief either in a motion for a new trial or on
       appeal.

Tenn. Code Ann. § 40-18-110(c) (2006). However, our supreme court has determined that when a
defendant fails to comply with Tennessee Code Annotated section 40-18-110, an appellate court still
can review, under the plain error doctrine, the omission of instruction on lesser-included offenses.
Page, 184 S.W.3d at 226.




                                                  -5-
        For this court to find plain error, each of the following five factors must be established: (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, 282–83 (Tenn. 2000)
(adopting the five-factor test first articulated by this court in State v. Adkisson, 899 S.W.2d 626,
641–42 (Tenn. Crim. App. 1994)).

        In some cases, child abuse may be a lesser-included offense of aggravated sexual battery if
the evidence supports the charge. Tenn. Code Ann. § 39-15-401(e) (2006); see also State v. Elkins,
83 S.W.3d 706, 710–12 (Tenn. 2002). We will determine whether the proof in this matter would
have supported such a charge.

       Child abuse is defined as follows:

                (a) Any person who knowingly, other than by accidental means, treats a child
       under eighteen (18) years of age in such a manner as to inflict injury commits a Class
       A misdemeanor; provided, however, that, if the abused child is six (6) years of age
       or less, the penalty is a Class D felony.

                (b) Any person who knowingly abuses or neglects a child under eighteen (18)
       years of age, so as to adversely affect the child's health and welfare, commits a Class
       A misdemeanor; provided, that, if the abused or neglected child is six (6) years of age
       or less, the penalty is a Class E felony.

Tenn. Code Ann. § 39-15-401(a)-(b) (2006).

         The defendant argues that an instruction for child abuse was warranted because “there was
proof in this cause of further injury and no proof that the [defendant] made the [victim] do anything,”
this argument dependent upon West’s testimony that the victim had “sexually act[ed] out” and
received counseling. In the defendant’s view, this evidence equates to “adversely affect[ing] the
child’s health and welfare,” although he cites no legal authorities for this claim. We disagree. The
evidence regarding the victim’s emotional injury was not sufficient for a reasonable juror to conclude
that the defendant committed child abuse under Tennessee Code Annotated section 39-15-401(a)-(b).
See State v. Matthew Kirk McWhorter, No. M2003-01132-CCA-R3-CD, 2004 WL 1936389 at *38-
39 (Tenn. Crim. App. Aug. 30, 2004) (holding that the evidence in that case, which included the
child victim’s testimony that the defendant performed fellatio on him and vice versa, was not
sufficient to support an instruction on child abuse).

              III. Whether the Trial Court Erroneously Applied Enhancement
                     or Mitigating Factors in Sentencing the Defendant




                                                 -6-
        Lastly, the defendant argues that the trial court erred by misapplication of enhancement
factors and failing to apply various mitigating factors.

        When an accused challenges the length and manner of service of a sentence, it is the duty of
this court to conduct a de novo review on the record “with a presumption that the determinations
made by the court from which the appeal is taken are correct.” Tenn. Code Ann. § 40-35-401(d)
(2006). This presumption 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 presumption does not apply to the legal conclusions
reached by the trial court in sentencing the accused or to the determinations made by the trial court
which are predicated upon uncontroverted facts. State v. Butler, 900 S.W.2d 305, 311 (Tenn. Crim.
App. 1994); State v. Smith, 891 S.W.2d 922, 929 (Tenn. Crim. App. 1994); State v. Bonestel, 871
S.W.2d 163, 166 (Tenn. Crim. App. 1993), overruled on other grounds by State v. Hooper, 29
S.W.3d 1, 9 (Tenn. 2000).

        In this matter, the record does not affirmatively show that the trial court considered all
relevant facts and circumstances. Accordingly, we conclude that the presumption of correctness is
not afforded the determinations of the trial court. Therefore, our review is simply de novo. See State
v. Pierce, 138 S.W.3d 820, 826-27 (Tenn. 2004) (citing State v. Poole, 945 S.W.2d 93, 93 (Tenn.
1997)).

        In conducting a de novo review of a sentence, this court must consider (a) any evidence
received at the trial and/or sentencing hearing, (b) the presentence report, (c) the principles of
sentencing, (d) the arguments of counsel relative to sentencing alternatives, (e) the nature and
characteristics of the offense, (f) any mitigating or enhancement factors, (g) any statements made by
the accused in his own behalf, and (h) the accused's potential or lack of potential for rehabilitation
or treatment. Tenn. Code Ann. §§ 40-35-103, -210 (2006); State v. Taylor, 63 S.W.3d 400, 411
(Tenn. Crim. App. 2001) (citing Ashby, 823 S.W.2d at 168; State v. Moss, 727 S.W.2d 229 (Tenn.
1986)). The party challenging the sentence imposed by the trial court has the burden of establishing
that the sentence is erroneous. Tenn. Code Ann. § 40-35-401 (2006), Sentencing Commission
Cmts.; Ashby, 823 S.W.2d at 169.

        At the sentencing hearing, the trial court applied enhancement factor (4), that “the victim of
the offense was particularly vulnerable because of her age.” See Tenn. Code Ann. § 40-35-114(4)
(2006). The defendant argues that the trial court should not have applied this factor because the
relevant statutory elements of aggravated sexual battery require that the victim be under the age of
thirteen. Our supreme court has stated that application of this factor is not precluded even though
an essential element of the offense is that the victim be a certain age. See, e.g., State v. Walton, 958
S.W.2d 724, 729 (Tenn. 1997) (citing State v. Adams, 864 S.W.2d 31, 35 (Tenn. 1993)). However,
the State must put on some proof of particular vulnerability in addition to the victim’s age. Poole,
945 S.W.2d at 96-97; see also State v. Otis Miller, III, No. M2004-00707-CCA-R3-CD, 2005 WL
1220236, at *4 (Tenn. Crim. App. May 20, 2005), perm. to appeal denied (Tenn. Dec. 5, 2005)
(holding that the defendant’s sentence for aggravated sexual battery against his five-year-old


                                                  -7-
daughter was improperly enhanced by the vulnerability factor because it was applied based “solely
on the victim’s age,” and there was no evidence of “particular vulnerability”). The State concedes
that no additional proof was put forth showing that the victim was particularly vulnerable because
of her young age and that the trial court’s application of this factor was therefore erroneous. We
agree and conclude that this factor was not applicable.

        The trial court also enhanced the defendant’s sentence because the offense “involved a victim
and it was committed to gratify the defendant’s desire for pleasure or excitement.” See Tenn. Code
Ann. § 40-35-114(7) (2006). As the State points out on appeal, our supreme court has held that this
factor cannot be applied to enhance a sentence for aggravated sexual battery because:

       sexual battery requires that the touching be for the purpose of sexual arousal or
       gratification. Thus, the offense necessarily includes the intent to gratify a desire for
       pleasure or excitement. State v. Hayes, 899 S.W.2d 175, 185 (Tenn. Crim. App.),
       perm. to appeal denied, (Tenn. 1995). Since the factor is an essential element of the
       offense, it cannot be used to enhance the sentences of sexual battery and aggravated
       sexual battery. Tenn. Code Ann. § 40-35-114 (1995 Supp.).

State v. Kissinger, 922 S.W.2d 482, 489–90 (Tenn. 1996) (footnote omitted). As such, the trial
court’s application of this factor was also erroneous. Thus, there were no enhancement factors
applicable to the defendant.

        At the sentencing hearing, the trial court concluded, without comment, that “[t]here were no
findings of mitigating circumstances.” The defendant argues that the trial court erred by failing to
recognize as mitigating factors that he: (1) had no prior criminal history; (2) was seventy-one years
old; (3) had an I.Q. of seventy; and (4) “[h]ad been, pursuant to law, evaluated post trial by experts
and found to have a low risk of re-offending.” We conclude that the trial court could have
considered the elements listed by the defendant as potential mitigating factors. See Tenn. Code Ann.
§ 40-35-210(b)(5) (2006) (stating that a trial court shall consider before determining a defendant’s
specific sentence, “[e]vidence and information offered by the parties on the mitigating and
enhancement factors set out in §§ 40-35-113 and 40-35-114”); see also Tenn. Code Ann. § 40-35-
113(6) (2006) (listing as a potential mitigating factor that “[t]he defendant, because of youth or old
age, lacked substantial judgment in committing the offense”) (emphasis added); Tenn. Code Ann.
§ 40-35-113(8) (2006) (listing as a potential mitigating factor that “[t]he defendant was suffering
from a mental or physical condition that significantly reduced the defendant’s culpability for the
offense”); Tenn. Code Ann. § 40-35-113(13) (2006) (providing that “[a]ny other factor consistent
with” the sentencing statutes may be considered as potentially mitigating a defendant’s sentence).

        The defendant was sentenced as a violent offender for a Class B felony and could have
received “not less than eight (8) nor more than twelve (12) years.” Tenn. Code Ann. § 40-35-
112(a)(2) (2006). The advisory sentencing guidelines suggest that in the absence of enhancement
factors, “[t]he minimum sentence within the range of punishment is the sentence that should be
imposed.” Tenn. Code Ann. § 40-35-210(c) (2006). In light of the trial court’s misapplication of


                                                 -8-
two enhancement factors, leaving no applicable enhancement factors, the defendant should have
been sentenced to eight years, the minimum for the offense.2

                                                  CONCLUSION

      Based on the foregoing authorities and reasoning, we affirm the judgment of the trial court
but modify the defendant’s sentence from ten years to eight years.


                                                                 ___________________________________
                                                                 ALAN E. GLENN, JUDGE




         2
           Effective June 7, 2005, Tennessee Code Annotated sections 40-35-114 and 40-35-210 were rewritten in their
entirety. W hile this defendant could have elected to be sentenced pursuant to these new provisions, the record on appeal
does not contain a waiver showing that he did so. Thus, the revised statutes are not applicable. See Tenn. Code Ann.
§§ 40-35-114, -210, Compiler’s Notes. In view of the fact that we are reducing the defendant’s sentence to the minimum,
it is unnecessary to utilize the analysis set out in State v. Gomez, 163 S.W .3d 632 (Tenn. 2005), vacated by Gomez v.
Tennessee, __ U.S. __, 127 S. Ct. 1209 (2007).



                                                          -9-
