         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs October 18, 2000

               STATE OF TENNESSEE v. NICHOLAS WILLIAMS

                     Direct Appeal from the Circuit Court for Giles County
                        Nos. 8650, 8651, 8652   Jim T. Hamilton, Judge


                       No. M1999-00780-CCA-R3-CD - Filed July 3, 2001


In 1998, the Giles County Grand Jury indicted the Defendant for one count of statutory rape and ten
counts of sexual battery. In 1999, a Giles County jury tried the Defendant and found him guilty of
one count of statutory rape and five counts of sexual battery. Following a hearing, the trial court
sentenced the Defendant to two years incarceration for each conviction and ordered that five of the
six sentences be served consecutively, resulting in an effective sentence of ten years. The Defendant
now appeals as of right, arguing (1) that the evidence presented at trial was insufficient to support
his convictions for sexual battery; (2) that the trial court erred by consolidating all counts for trial;
and (3) that he was improperly sentenced. We conclude that the evidence is insufficient as to one
count of sexual battery and thus reverse one of the Defendant’s convictions for sexual battery. In
addition, we conclude that the trial court erred by consolidating all counts for trial, but conclude that
this error was harmless. Finally, following our reversal of the sexual battery conviction in case 8652,
count one, with a two-year sentence, and a de novo review of the remaining sentences imposed by
the trial court, we conclude that an effective sentence of eight years in the Tennessee Department of
Corrections is appropriate.

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

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which THOMAS T. WOODALL and
NORMA MCGEE OGLE , JJ., joined.

Claudia Jack, Beverly J. White and Shipp Weems, Pulaski, Tennessee, for the appellant, Nicholas
Williams.

Paul G. Summers, Attorney General and Reporter; Todd R. Kelley, Assistant Attorney General;
Elizabeth T. Ryan, Assistant Attorney General; T. Michael Bottoms, District Attorney General;
Patrick S. Butler, Assistant District Attorney General; and Richard H. Dunavant, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                              OPINION
        In July 1998, the Giles County Grand Jury indicted the Defendant, Nicholas Williams, for
one count of statutory rape and ten counts of sexual battery. In June 1999, the trial court granted the
State’s motion to consolidate all offenses for trial. Prior to trial, the State dismissed five counts of
sexual battery. In June 1999, the Defendant was tried by jury and found guilty of one count of
statutory rape and five counts of sexual battery. The trial court sentenced the Defendant as a Range
I standard offender to two years incarceration for statutory rape and to two years incarceration for
each count of sexual battery. The trial court ordered that five of the counts be served consecutively
for an effective sentence of ten years.

       The Defendant now appeals his convictions and sentence, arguing (1) that the trial court erred
by consolidating all counts for trial; (2) that the evidence was insufficient to support his convictions
for sexual battery; and (3) that he was improperly sentenced. We reverse one of the Defendant’s
convictions for sexual battery because we agree that the evidence was insufficient to support this
conviction. We also conclude that the trial court erred by consolidating all counts for trial, but find
such error harmless.

         The charges in this case stem from a series of incidents involving three friends of the
Defendant’s daughter. The friends, all victims in this trial, were M.B., G.M., and A.Y.1 At trial, the
Defendant’s daughter, Amanda Williams, testified that in 1997, she began her senior year of high
school and moved to Lynnville, Tennessee with her father, the Defendant, who was thirty-eight years
old at the time. Williams testified that she became friends with a number of girls at her high school
and asked many of her friends to visit the two-bedroom trailer where she lived with her father.
Williams maintained that her father pressured her to bring friends to their home, and she testified
that if she did not “[f]ind someone to come over,” she “would get in trouble.” Williams stated that
when she brought friends home, the Defendant provided alcohol and marijuana for them at the
trailer. She recalled that she and her friends would drink alcohol, smoke marijuana, and play cards
with the Defendant. She also testified that the Defendant sometimes took her and her friends to
Columbia for a movie or dinner, and she recalled that on these occasions, the Defendant always
“paid everyone’s way.”

        According to Williams, the first friend to visit their home was M.B., who was seventeen
years old at the time. Williams stated that she introduced M.B. to the Defendant, and they became
friends. Williams testified that the Defendant eventually told her that he and M.B. were “kind of like
dating.” According to Williams, the Defendant revealed to her that he and M.B. “had sex, but when
she told him to stop, he did. And it would have gone further, but [M.B.] didn’t want it to, and they
quit.” Williams stated that the Defendant put M.B.’s senior photograph on their living room wall
“‘[c]ause they liked each other.”

       Several months later, A.Y., a fifteen-year-old high school freshman, began to visit the
Williams’ trailer. Williams testified that she, A.Y., and the Defendant “would party and go places
together.” She stated that on weekends, they would usually “go out, but . . . sometimes [they] would


       1
           Due to the a ges of the victim s and the natu re of the crime s, we will refer to the v ictims by initial only.

                                                            -2-
stay home, get drunk and smoke weed” provided by the Defendant. Williams recalled that one night
when A.Y. visited her home, the Defendant pressured Williams to “get [A.Y.] to keep drinking, ‘til
she’d pass out.” Williams stated that she complied with her father’s request, and A.Y. continued to
consume alcohol. Eventually, A.Y. fell asleep in Williams’ bedroom. Williams testified that she
slept on the couch that night because the Defendant told Williams not to enter her room until he
came out. Williams stated that her father entered the bedroom with A.Y., stayed for a few minutes,
and then left. The Defendant later told Williams that “when [A.Y.] was asleep, he tried to mess with
her, and she would . . . roll over and tell him, no, and he would quit.” Williams testified that she
spoke with A.Y. on the telephone after that night. After their conversation, in response to a question
A.Y. had asked her on the phone, she asked her father “if [A.Y.] would come over again, would he
promise not to bother her like last time and to have her just be a friend.”

        Williams recalled that on another occasion, the Defendant transported her, her former
boyfriend, and A.Y. to Columbia for the evening. She stated that while she and the Defendant were
driving to pick up A.Y., the Defendant told Williams to stay in the front seat of the car so that he
could ride in the back seat with A.Y. In addition, Williams testified that her father gave A.Y. a
birthstone ring that he had purchased for her at Wal-Mart.

         On cross-examination, Williams testified that police officers had told her that if she did not
“tell [the police] everything [she] knew,” she would be charged with contributing to the delinquency
of a minor, and she stated that this frightened her. She also admitted that her friends, especially
A.Y., often wanted to come to her home. In addition, she testified that she and her friends smoked
marijuana and consumed alcohol at parties outside of her home. She stated that her friends
sometimes had marijuana of their own, but she explained that her father always provided the alcohol
and marijuana at their home. Finally, Williams testified that when she smoked marijuana, her
memory sometimes became foggy, but she insisted that she remembered all of the events that she
had testified about on direct examination.

        M.B. testified that during her senior year of high school, she became friends with Amanda
Williams, and she started occasionally spending the night at the Williams’ trailer in Lynnville. She
recalled that one Sunday after she spent the night there, she and Williams went to church. When
they arrived back at the trailer after church, Williams decided to visit her boyfriend and asked M.B.
to stay at the trailer. After Williams left, M.B. and the Defendant sat on the couch and began to talk.
While they talked, the Defendant put his arm around M.B. M.B. recalled that “at first, [she] was
willing.” She testified,
         You know, he kissed me and I kissed him back. And then it started going onto more
         stuff. And he tried to touch my breast . . . . And he undone his pants and pulled out
         his penis. . . . [H]e tried to get me to touch it, . . . and I was like, no . . . . just leave
         me alone.
M.B. testified that the Defendant then pulled back her dress, pushed aside her panties, and penetrated
her vaginally with his penis. M.B. continued to protest, however, and the Defendant “finally just
stopped.” M.B. then called Williams and asked her to return home.



                                                 -3-
        M.B. testified that some time after this incident, she returned to the Williams’ trailer with two
of her friends to pick up Amanda Williams. She stated that the Defendant was present when they
arrived, and she “told him to leave [her] alone.” M.B. testified, “[The Defendant] started calling me
and [Amanda Williams] slut, . . . and he wouldn’t let [Amanda Williams] go out with me, just ‘cause
I wouldn’t stay there with him. . . . And he wouldn’t even let me and Mandy talk [n]o more, just
‘cause I wouldn’t stay there no more.”

       M.B. further testified that she gave Williams a copy of her senior photograph. She stated that
the Defendant put the photograph in a picture frame on the living room wall and later placed it in his
Bible. She also recalled that when she visited the Williams’ trailer, she sometimes consumed
alcohol and smoked marijuana that the Defendant provided for her and for his daughter.

        G.M., who was fifteen years old at the time of the crimes, testified that she was friends with
Amanda Williams and A.Y. She stated that she visited the Williams’ trailer several times, where
she drank alcohol and smoked marijuana bought by the Defendant. She recalled that one night while
she was at the trailer, she, Williams, and A.Y. went to sleep in Williams’ bed. She stated that while
they slept, the Defendant entered Williams’ bedroom and “mess[ed] with” A.Y. She recalled that
she and A.Y. discussed the incident the following morning.

        G.M. testified that on another occasion when she visited the trailer, she played cards with
Amanda Williams and the Defendant while they all drank and smoked marijuana. Afterwards, G.M.
went into Williams’ bedroom to sleep while Williams slept on the couch in the living room.
According to G.M., about fifteen to twenty minutes after she got into the bed, the Defendant entered
the bedroom. G.M., who was lying on her stomach at the time, felt him put his hands “underneath
the elastic of [her] shorts” and try to pull them down. She testified that the Defendant’s hand was
on her buttocks. G.M. testified that when this happened, she moved “to make him think [she] was
waking up,” and he left the room. However, a few minutes later, he returned and tried again. G.M.
stated that this happened about five times until she finally rolled herself up in the blanket. G.M.
testified that she never returned to the Williams’ trailer after the incident.

        A.Y. also testified at trial. She stated that she was a freshman in high school at the time of
the crimes in this case. She recalled that she and Amanda Williams were “best friends” at that time
and that she visited the Williams’ trailer two or three times a week after she and Williams became
friends. A.Y. testified that she kept a journal in which she recorded several incidents that occurred
at the Williams’ home. She stated that on March 26, 1998, she went to the trailer after school and
spent the night there with the Defendant, Williams, and G.M. She recalled that during the evening,
they all played cards, smoked marijuana, and drank alcohol. Afterwards, she, Williams, and G.M.
fell asleep in Williams’ bed. A.Y. stated that she was awakened by the Defendant, who was
caressing her legs. When she realized what was happening, she kicked him and then fell back asleep.
The Defendant, according to A.Y., left the room, but came back in numerous times to rub her legs.
Each time, she kicked him, and eventually, he stopped. A.Y. stated that while the Defendant was
in the room, she tried to awaken Williams and G.M. by hitting them, but neither of them woke up.
A.Y. testified that the next morning she told G.M. what had happened and then went home.


                                                  -4-
        On March 28, 1998, A.Y. returned to the Williams’ home. A.Y. testified that on that night,
as they did on each occasion she visited the Williams’ home, she, Williams, and the Defendant got
“drunk and high” by drinking alcohol and smoking marijuana bought by the Defendant. At the end
of the night, she and Williams fell asleep in Williams’ bed. Again, the Defendant entered the
bedroom and began caressing A.Y.’s legs, and A.Y. kicked him. A.Y. stated that when he rubbed
her legs, the Defendant rubbed her legs “above [her] knee[s].” Several times, the Defendant
attempted to caress A.Y.’s legs while she slept, and several times, she kicked him. A.Y. testified that
every time the Defendant believed she had fallen back asleep, he would begin to touch her. A.Y.
stated that she tried “to curl up in the covers, to try to get away from him, . . . just hoping he
wouldn’t come in there.”

         A.Y. testified that another incident occurred on the night of April 3, 1998. A.Y. stated that
during the evening, she, Williams, and the Defendant drank several shots of tequila and smoked
marijuana. The Defendant encouraged her to keep drinking when she wanted to stop. She recalled
that after she and Williams “passed out,” A.Y. awakened to find the Defendant’s hand inside of her
shorts underneath her panties. When she woke up, she kicked the Defendant, and the Defendant
apparently left the room. On April 9, 1998, a similar incident occurred. A.Y. stated that after she,
Williams, and the Defendant “‘got drunk and high” and she “passed out,” the Defendant woke her
up by trying to “jerk [her shorts] off of [her].” A.Y. recalled that when this happened, the Defendant
was holding the back of her shorts while trying to pull them down. She stated that his fingers were
inside of her panties and that the Defendant managed to pull her shorts and panties below her
buttocks.

         When asked why she continued to return to the Williams’ home despite these incidents, A.Y.
responded that she did so because Amanda Williams “would beg [her] to go over there.” She also
testified that Williams and the Defendant “would show up at [her] softball practices,” and she left
with them because she was afraid to tell her mother what had occurred at the Williams’ trailer. A.Y.
recalled that once when the Defendant and Williams arrived at her softball practice, Williams
retrieved a birthstone ring from the glove compartment of their car and handed it to A.Y. A.Y. stated
that she understood the ring to be a gift from the Defendant.

        A.Y. said she once told Amanda Williams that she would not come over because she “didn’t
want [the Defendant] touching” her. A.Y. heard Williams relay this message to the Defendant.
Later that day, Williams, the Defendant, and Williams’ former boyfriend drove to A.Y.’s house to
take her out that evening. A.Y. recalled that when they arrived, Williams and her former boyfriend
were sitting in the front seat of the car, and the Defendant was sitting in the back seat. However,
A.Y. told Williams that she did not feel comfortable sitting in the back seat with the Defendant, and
they changed seating positions.

       A.Y. testified that one day at school she noticed that Amanda Williams’ eye was injured.
Although Williams claimed that a screen door had hit her, A.Y. began to suspect that the Defendant
was abusing Williams. A.Y. therefore considered reporting the Defendant’s actions to the police.



                                                 -5-
She wrote a letter to G.M. detailing what the Defendant had done to her, but before she could deliver
it to G.M., A.Y.’s mother discovered the letter. A police investigation ensued.

        Deputy Joey Dickey of the Giles County Sheriff’s Department testified that he investigated
the allegations against the Defendant in this case. He stated that he initially interviewed G.M. and
A.Y. separately, and based on their interviews, he decided to conduct an additional interview of M.B.
Chief Investigator Michael Chapman of the Giles County Sheriff’s Department testified that he
arranged for Amanda Williams to be interviewed by a female employee of the Department of
Children’s Services because he was concerned that Williams may have been victimized by her father.
He stated that after he received the results of all interviews, he obtained a warrant and arrested the
Defendant.

                              I. SUFFICIENCY OF THE EVIDENCE

         The Defendant contests the sufficiency of the evidence used to convict him. The jury found
the Defendant guilty of one count of statutory rape against victim M.B., one count of sexual battery
against victim G.M., and four counts of sexual battery against victim A.Y. The Defendant argues
that the evidence was insufficient to convict him of all five counts of sexual battery. With regard
to his convictions for sexual battery against victim A.Y, he argues that there was no “sexual contact,”
as defined by our statute, with any of the victim’s “intimate parts.” See Tenn. Code Ann. § 39-13-
501(2), (6). He further contends that no evidence was presented that each alleged sexual battery was
accomplished by means of force or coercion.

        When an accused challenges the sufficiency of the evidence, an appellate court’s standard
of review is whether, after considering 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, 324 (1979); State v. Duncan, 698 S.W.2d 63, 67 (Tenn.
1985); Tenn. R. App. P. 13(e). This rule applies to findings of guilt based upon direct evidence,
circumstantial evidence, or a combination of both direct and circumstantial evidence. State v. Dykes,
803 S.W.2d 250, 253 (Tenn. Crim. App. 1990), overruled on other grounds, State v. Hooper, 29
S.W.3d 1 (Tenn. 2000).

        In determining the sufficiency of the evidence, this Court should not re-weigh or re-evaluate
the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Nor may this
Court substitute its inferences for those drawn by the trier of fact from the evidence. Liakas v. State,
286 S.W.2d 856, 859 (Tenn. 1956); State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999). Questions
concerning the credibility of the witnesses, the weight and value of the evidence, as well as all
factual issues raised by the evidence are resolved by the trier of fact. Liakas, 286 S.W.2d at 859.
This Court must afford the State of Tennessee the strongest legitimate view of the evidence
contained in the record, as well as all reasonable inferences which may be drawn from the evidence.
State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). Because a verdict of guilt against a defendant
removes the presumption of innocence and raises a presumption of guilt, the convicted criminal



                                                  -6-
defendant bears the burden of showing that the evidence was legally insufficient to sustain a guilty
verdict. Id.

        Sexual battery is defined, in pertinent part, as “unlawful sexual contact with a victim by the
defendant . . . accompanied by any of the following circumstances: (1) Force or coercion is used to
accomplish the act . . . .” Tenn. Code Ann. § 39-13-505(a)(1).2
        “Sexual contact” includes 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). “‘Intimate parts’ includes the primary genital area, groin, inner thigh, buttock
or breast of a human being . . . .” Id. § 39-13-501(2). “Coercion” is defined as “the threat of
kidnapping, extortion, force or violence to be performed immediately or in the future.” Id. § 39-13-
505(b). Finally, “‘[f]orce’ means compulsion by the use of physical power or violence and shall be
broadly construed . . . .” Id. § 39-11-106(12).

        The Defendant first contends that the evidence was insufficient to support his convictions
for sexual battery against A.Y. because no evidence was presented that “unlawful sexual contact”
occurred. To properly resolve this question, we must carefully consider A.Y.’s testimony at trial:
A.Y. first testified that on March 26 while she slept, she “felt someone rubbing on her legs,” and she
“kicked them off.” She stated that this occurred several times. When asked how the Defendant
rubbed her legs, she stated, “He would get his hands, and . . . start rubbing them up my legs. And
when he would get up to about right here, I would kick him off of me.” There is no clarification in
the record of what A.Y. meant by “right here.” On cross-examination, defense counsel asked A.Y.
if the Defendant rubbed her legs “right up to about the knee,” and A.Y. responded, “Yes, ma’am.”

       A.Y then testified that on March 28, the Defendant again rubbed her legs while she slept, and
she again kicked him. She stated that he touched her “[r]ight above her knee” and indicated to the
jury where the Defendant touched her.

         A.Y. next recalled that on April 3, she “woke up, and [the Defendant’s] hand was in [her]
shorts, trying to get underneath [her] pants.” She stated that his hands were “underneath [her] shorts,
under [her] panties” and showed the jury where the Defendant touched her. She testified that she
again “kicked him off.”

       Finally, A.Y. testified that on April 9, the Defendant “tried to jerk [her shorts] off” by
grabbing the back of her shorts and “jerk[ing]” them down. On this occasion, the Defendant’s hands


         2
            Although there are several means by w hich an individ ual can acc omplish sex ual battery, see id. § 39-13-
505(a)(1)-(4), the Defendant was indicted for each count of sexual ba ttery as follows: T he Defend ant “did unlaw fully,
intentionally, knowingly or recklessly, and forcibly or coercively en gage in sexual contact with” the victim. Thus, the
only means o f sexual battery tha t we may con sider is sexual b attery accom plished by fo rce or coe rcion.

                                                          -7-
were “underneath [her] panties and [her] shorts.” Again, A.Y. indicated to the jury where the
Defendant had touched her. On cross-examination, A.Y. recalled that the Defendant managed to pull
her shorts and panties down below her buttocks.

        Because the definition of “intimate parts” includes the “the primary genital area, groin, inner
thigh, [and] buttock,” of a human being, id. § 39-13-501(2), we conclude that sufficient evidence
was presented from which a jury could have determined that the Defendant had “unlawful sexual
contact” with A.Y. on March 28, April 3, and April 9. However, we must conclude that insufficient
evidence was presented to support the jury’s verdict that the Defendant had “unlawful sexual
contact” with A.Y. on March 26. A.Y. testified that on March 26, the Defendant rubbed her legs to
about the knee, and although she indicated to the jury where the Defendant touched her, the State
unfortunately failed to clarify on the record precisely where A.Y. was touched. No evidence is
included in the record indicating that the Defendant touched any part of A.Y.’s thigh, or any of her
other “intimate parts,” on March 26. Accordingly, we must reverse the Defendant’s conviction for
the sexual battery of A.Y. that occurred on March 26, 1998.

        The Defendant next argues that the evidence was insufficient to show that each count of
sexual battery was accomplished by means of coercion or force. As previously stated, “coercion”
is defined as “the threat of kidnapping, extortion, force or violence to be performed immediately or
in the future,” id. § 39-13-505(b), and “‘[f]orce’ means compulsion by the use of physical power
or violence and shall be broadly construed . . . .” Id. § 39-11-106(12).

        Having reviewed the record, we conclude that sufficient evidence was presented that force
was used to accomplish all remaining counts of sexual battery as to A.Y. and the count of sexual
battery as to G.M. A.Y. testified that on each occasion that the Defendant tried to touch her, she
kicked him. She recalled that each time she kicked him, he left the room, but soon returned to try
to touch her again. In addition, she testified that on one occasion, the Defendant tried to “jerk” her
shorts off of her. In light of the foregoing, a rational trier of fact could reasonably have found that
the Defendant used force to commit each count of sexual battery against A.Y.

        Likewise, G.M. testified that she was lying on her stomach in bed when the Defendant
entered the room several times and tried repeatedly to pull her panties down. The Defendant
persisted in this behavior until G.M. eventually rolled herself into a blanket. Although G.M. made
an effort to protect herself by wrapping herself in the blanket, she testified, “I didn’t know if I should
say anything or not, because I didn’t know what he would do.” We conclude that a broad
construction of “force” could allow the jury to rationally conclude that the element of “force” was
proven beyond a reasonable doubt with regard to the Defendant’s conduct toward G.M. We thus
reverse one conviction for sexual battery on the basis of insufficient evidence and affirm all
remaining convictions.




                                                   -8-
                                      II. CONSOLIDATION

        The Defendant argues that the trial court erred by consolidating the offenses in this case for
trial. Rule 14 of the Tennessee Rules of Criminal Procedure provides as follows: “If two or more
offenses have been joined or consolidated for trial . . . , the defendant shall have a right to a
severance of the offenses unless the offenses are part of a common scheme or plan and the evidence
of one would be admissible upon the trial of the others.” Tenn. R. Crim. P. 14(b)(1). A trial court’s
denial of a motion for severance under this rule will be reversed only when there has been an abuse
of discretion. State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999). In Tennessee, there are three
categories of common scheme or plan evidence: (1) evidence showing a distinctive design or
signature crime; (2) evidence demonstrating a larger, continuing plan or conspiracy; and (3) evidence
that is part of the same transaction. State v. Moore, 6 S.W.3d 235, 240 (Tenn. 1999). “Before
multiple offenses may be said to reveal a distinctive design, . . . the ‘modus operandi employed must
be so unique and distinctive as to be like a signature.’” Id. (citing State v. Carter, 714 S.W.2d 241,
245 (Tenn.1986)).

        However, the Tennessee Supreme Court has noted that
        the mere existence of a common scheme or plan is not a proper justification for
        admitting evidence of other crimes. Rather, admission of evidence of other crimes
        which tends to show a common scheme or plan is proper to show identity, guilty
        knowledge, intent, motive, to rebut a defense of mistake or accident, or to establish
        some other relevant issue. Unless expressly tied to a relevant issue, evidence of a
        common scheme or plan can only serve to encourage the jury to conclude that since
        the defendant committed the other crime, he also committed the crime charged.
Id. at 239 n.5. The court has also stated that “a common scheme or plan for severance purposes is
the same as a common scheme or plan for evidentiary purposes.” Id. at 240 n.7. Thus, Tennessee
Rule of Evidence 404(b) is also relevant to our analysis of this issue. See State v. McCary, 922
S.W.2d 511, 513-14 (Tenn. 1996).

        The crimes in this case can be construed as being part of a common scheme or plan in that
the evidence shows a distinctive design. The Defendant committed all of the offenses against friends
of his daughter who were visiting the Defendant’s home. The Defendant provided each victim with
alcohol and marijuana. Furthermore, in each instance except that involving M.B., the Defendant
touched the victim or tried to remove her shorts while she was “passed out” on his daughter’s bed.

        However, we cannot conclude that evidence of each of the crimes in this case “would be
admissible upon the trial of the others,” Tenn. R. Crim. P. 14(b)(1), to establish some other relevant
issue. Although offenses that are part of a common scheme or plan are typically offered to establish
the identity of the perpetrator, Moore, 6 S.W.3d at 239; McCary, 922 S.W.2d at 514, identity is not
a material issue in this case. Nor do we find that the evidence is admissible to establish some other
relevant issue. We therefore conclude that the trial court erred by consolidating the cases for trial.




                                                 -9-
        Nevertheless, we conclude that this error was harmless. Rule 52(a) of the Tennessee Rules
of Criminal Procedure provides that “[n]o judgment of conviction shall be reversed on appeal except
for errors which affirmatively appear to have affected the result of the trial on the merits.” We
cannot conclude that consolidation of all charges in this case affirmatively affected the result of the
trial. With the exception of evidence presented concerning one count of sexual battery against A.Y.
which we have reversed on the basis of insufficient evidence, the State presented ample, strong
evidence to support each separate conviction in this case. Not only did each of the victims in this
case testify unequivocally that the Defendant committed the crimes of which he was convicted, but
the Defendant’s daughter verified much of the girls’ testimony. In addition, G.M. verified A.Y.’s
testimony as to at least one count of sexual battery. We believe that if this evidence had been
presented at separate trials, the trials would have yielded the same convictions. We therefore
conclude that the trial court’s error in consolidating the separate counts for trial was harmless.

                                        III. SENTENCING

         Finally, the Defendant contends that he was improperly sentenced. The trial court sentenced
the Defendant to two years incarceration for each count of sexual battery and to two years
incarceration for statutory rape. The trial court ordered that the Defendant’s sentence for two counts
of sexual battery be served concurrently, but consecutive to all other sentences. The court ordered
that all other sentences be served consecutively. The Defendant contests the length of his sentences.
He also argues that the trial court erred by ordering consecutive sentences and by denying alternative
sentencing.

        When a criminal defendant challenges the length, range, or manner of service of a sentence,
the reviewing court must conduct a de novo review of the sentence with a presumption that the
determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). 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). In the event that the record fails to show such consideration, the
review of the sentence is purely de novo. State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App.
1992).

       In making its sentencing determination, the trial court, at the conclusion of the sentencing
hearing, determines the range of sentence and then determines the specific sentence and the propriety
of sentencing alternatives by considering (1) the evidence, if any, received at the trial and the
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 involved, (5)
evidence and information offered by the parties on the enhancement and mitigating factors, (6) any
statements the defendant wishes to make in the defendant's behalf about sentencing, and (7) the
potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-210(a), (b), -103(5); State v.
Williams, 920 S.W.2d 247, 258 (Tenn. Crim. App. 1995).




                                                 -10-
        Sexual battery and statutory rape are both Class E felonies. Tenn. Code Ann. § 39-13-505(c),
-506(c). The presumptive sentence to be imposed by the trial court for a Class B, C, D or E felony
is the minimum within the applicable range unless there are enhancement or mitigating factors
present. Tenn. Code Ann. § 40-35-210(c). If there are enhancement or mitigating factors, the court
must start at the presumptive sentence, enhance the sentence as appropriate for the enhancement
factors, and then reduce the sentence in the range as appropriate for the mitigating factors. Id. § 40-
35-210(e). The weight to be given each factor is left to the discretion of the trial judge. Shelton, 854
S.W.2d at123. However, the sentence must be adequately supported by the record and comply with
the purposes and principles of the 1989 Sentencing Reform Act. State v. Moss, 727 S.W.2d 229,
237 (Tenn. 1986).

       When imposing a sentence, the trial court must make specific findings of fact on the record
supporting the sentence. Tenn. Code Ann. § 40-35-209(c). The record should also include any
enhancement or mitigating factors applied by the trial court. Id. § 40-35-210(f). Thus, if the trial
court wishes to enhance a sentence, the court must state its reasons on the record. The purpose of
recording the court’s reasoning is to guarantee the preparation of a proper record for appellate
review. State v. Ervin, 939 S.W.2d 581, 584 (Tenn. Crim. App. 1996).

        If our review reflects that the trial court followed the statutory sentencing procedure, that the
court imposed a lawful sentence after having given due consideration and proper weight to the
factors and principles set out under the sentencing law, and that the trial court’s findings of fact are
adequately supported by the record, then we may not modify the sentence "even if we would have
preferred a different result." State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). The
defendant bears the burden of showing the impropriety of the sentence imposed. Ashby, 823 S.W.2d
at 169.

       In this case, the trial court failed to make an affirmative showing on the record that it
considered all relevant facts, circumstances, and sentencing principles in sentencing the Defendant.
Our review of the Defendant’s sentence is thus de novo without a presumption of correctness.

                                    A. LENGTH OF SENTENCES

         The Defendant first contests the length of his sentences. The sentencing range for a Range
I standard offender convicted of a Class E felony is between one and two years. Tenn. Code Ann.
§ 40-35-112(a)(5). In sentencing the Defendant, the trial court applied enhancement factor (4), that
“[a] victim of the offense was particularly vulnerable because of age,” and enhancement factor (15),
that “[t]he defendant abused a position of public or private trust . . . .” Id. § 40-35-114(4), (15). The
trial judge explained, “[T]hese children came home to someone’s home where . . . one of the parents
is there, and . . . we all know what type of trust children should, at least, put in a parent.” In addition,
the trial court stated,
         [The Defendant] was not charged or convicted of what I guess would have been
         contributing to the delinquency of a minor, in that the proof showed he provided
         alcohol and/or marijuana to these young girls at his home. And I think the Court will


                                                   -11-
        have to consider that as an enhancing factor, even though he wasn’t convicted or
        charged with those offenses . . . .

       The trial court should not have considered “proof . . . [that the Defendant] provided alcohol
and/or marijuana to [the victims] at his home.” As the trial court pointed out, the Defendant was not
charged or convicted of any crime based on these allegations, and we note that there is no catch-all
provision for enhancement factors in our statute. See Tenn. Code Ann. § 40-35-114.

        The trial court, however, correctly applied enhancement factor (4) in sentencing the
Defendant for each remaining count of sexual battery. Tennessee Code Annotated § 40-35-114(4)
provides for enhancement of a defendant’s sentence when the victim of the offense is “particularly
vulnerable because of age or physical or mental disability . . . .” A victim is particularly vulnerable
if, due to her physical or mental limitations, she is incapable of resisting, summoning help, or
testifying against the perpetrator. State v. Adams, 864 S.W.2d 31, 35 (Tenn. 1993); State v. Clayton
Eugene Turner, No. 03C01-9805-CR-000176, 1999 WL 817690, at *18 (Tenn. Crim. App. 1999).
Furthermore, a victim’s physical or mental limitation may be temporary or self-induced. Clayton
Eugene Turner, 1999 WL 817690, at *18. The State must prove that a victim’s limitations render
her particularly vulnerable, and this is a factual issue to be determined by the trier of fact on a case-
by-case basis. State v. Gray, 960 S.W.2d 598, 611 (Tenn. Crim. App. 1997).

        The Defendant committed three of the remaining counts of sexual battery against victim A.Y.
while she was asleep and intoxicated. He committed one count of sexual battery against G.M. while
she was intoxicated. We conclude that the sleeping, intoxicated minor victims in this case were
particularly vulnerable to the Defendant’s attack. See id.; Clayton Eugene Turner, 1999 WL 817690,
at *18. The record thus justifies application of enhancement factor (4) as to all remaining counts of
sexual battery.

         We note that enhancement factor (4) does not apply with regard to the statutory rape of M.B.,
who was neither intoxicated nor asleep at the time of the offense. However, we conclude that
enhancement factor (15) was appropriately applied with regard to the statutory rape of M.B., as well
as with regard to all remaining counts of sexual battery. See State v. Jernigan, 929 S.W.2d 391, 397
(Tenn. Crim. App. 1996); State v. Hayes, 899 S.W.2d 175, 187 (Tenn. Crim. App. 1995). The
Defendant was entrusted with the care of the victims while they visited his home and on other
occasions. He befriended the victims by buying them gifts, treating them to dinner and movies, and
engaging in other activities with them. After gaining their trust and friendship, he used his influence
to get them into an intoxicated state so that he could sexually abuse them. We therefore agree with
the trial court that the Defendant abused a position of private trust when committing these crimes.

        With regard to mitigating factors, the trial court made the following findings:
                Mitigating factors in this case, certainly the proof is plain, and the presentence
        report is plain, that [the Defendant] completed a high school education. He evidently
        has an excellent employment record with the company he’s employed with. He also



                                                  -12-
       has an exemplary military record. He has no prior criminal record, to speak of, other
       than I believe one conviction of reckless driving.
                 . . . I note over here in this presentence report, that in . . . Houston County .
       . . although the case was never prosecuted, he was charged with . . . [a]ttempted
       spousal rape.
                . . . Another charge, here, that he brought up to the probation officer that he
       was charged with contributing to the delinquency of a minor in December of 1995.
       I don’t know anything about that. But here again, that obviously involved a minor
       child in some respect.

         In our de novo review of the record in this case, we find that mitigating factors were present
in this case: The Defendant does have an excellent work history. In addition, we note that he has
only one prior conviction for reckless driving in 1996. See Tenn. Code Ann. § 40-35-113(13).
However, we give the mitigating factors little weight and conclude that the mitigating factors are
outweighed by the enhancement factor in this case. We therefore conclude that the trial court
properly sentenced the Defendant to two years on each count.

                                B. CONSECUTIVE SENTENCES

       The Defendant next contests the imposition of consecutive sentences. With regard to
consecutive sentencing, the trial court stated,
               The State has also requested consecutive sentencing and [h]as filed some
       factors for the Court to consider. And of course, the Court has to consider the facts
       of this case. I’ve already mentioned the fact that he did provide whiskey and
       marijuana to these children and then attempted to . . . fondle them or undress them
       while they slept in his daughter’s bedroom.

        It is within the sound discretion of the trial court whether or not an offender should be
sentenced consecutively or concurrently. State v. James, 688 S.W.2d 463, 465 (Tenn. Crim. App.
1984). A court may order multiple sentences to run consecutively if it finds by a preponderance of
the evidence that
                (1) [t]he defendant is a professional criminal who has knowingly devoted
        such defendant’s life to criminal acts as a major source of livelihood;
                (2) [t]he defendant is an offender whose record of criminal activity is
        extensive;
                (3) [t]he defendant is a dangerous mentally abnormal person so declared by
        a competent psychiatrist who concludes as a result of an investigation prior to
        sentencing that the defendant’s criminal conduct has been characterized by a pattern
        of repetitive or compulsive behavior with heedless indifference to consequences;
                (4) [t]he defendant is a dangerous offender whose behavior indicates little or
        no regard for human life, and no hesitation about committing a crime in which the
        risk to human life is high;



                                                  -13-
              (5) [t]he defendant is convicted of two (2) or more statutory offenses
      involving sexual abuse of a minor with consideration of the aggravating
      circumstances arising from the relationship between the defendant and victim or
      victims, the time span of the defendant’s undetected sexual activity; the nature and
      scope of the sexual acts and the extent of the residual, physical and mental damage
      to the victim or victims;
              (6) [t]he defendant is sentenced for an offense committed while on probation;
      or
              (7) [t]he defendant is sentenced for criminal contempt.
Tenn. Code Ann. § 40-35-115(b)(1)-(7).

        In this case, factor (5) is applicable and supports imposition of consecutive sentences. See
State v. Lane, 3 S.W.3d 456, 459-60 (Tenn. 1999). The Defendant was entrusted with the care of
the minor victims when they visited his home and used his influence as the parent of their friend to
gain access to the girls. He exploited his relationship with the victims by smoking marijuana and
drinking alcohol with the girls, often encouraging them to drink as much as possible apparently so
that they would be less likely to protest his subsequent actions. The Defendant then sexually abused
the girls, often while they slept and often despite their protests. The Defendant persisted in this
reprehensible conduct for a number of months, stopping only at the time of his arrest. In addition,
we note that two of the victims submitted victim impact statements describing the emotional damage
they suffered as a result of the Defendant’s abuse. We therefore conclude that the trial court’s
imposition of consecutive sentences is amply supported by the record.

                              C. ALTERNATIVE SENTENCING

        Finally, the Defendant argues that he should have been granted some form of alternative
sentencing. Although the trial court obviously denied alternative sentencing in this case, the court
failed to state on the record its reasons for doing so. The court also failed to make an affirmative
showing on the record that it considered sentencing principles regarding alternative sentencing. As
previously stated, we therefore will proceed to review this issue de novo.

       Tennessee Code Annotated § 40-35-102(5) provides as follows:
       In recognition that state prison capacities and the funds to build and maintain them
       are limited, convicted felons committing the most severe offenses, possessing
       criminal histories evincing a clear disregard for the laws and morals of society, and
       evincing failure of past efforts at rehabilitation shall be given first priority regarding
       sentencing involving incarceration . . . .
A defendant who does not fall within this class of offenders “and who is an especially mitigated
offender or standard offender convicted of a Class C, D, or E felony is presumed to be a favorable
candidate for alternative sentencing in the absence of evidence to the contrary.” Tenn. Code Ann.
§ 40-35-102(6). Furthermore, unless sufficient evidence rebuts the presumption, “[t]he trial court
must presume that a defendant sentenced to eight years or less and not an offender for whom
incarceration is a priority is subject to alternative sentencing and that a sentence other than


                                               -14-
incarceration would result in successful rehabilitation . . . .” State v. Byrd, 861 S.W.2d 377, 379-80
(Tenn. Crim. App. 1993); see also Tenn. Code Ann. § 40-35-303(a). The Defendant, as a standard
offender convicted of Class E felonies, is presumed to be a favorable candidate for alternative
sentencing.

         However, all offenders who meet the criteria are not entitled to relief; instead, sentencing
issues must be determined by the facts and circumstances of each case. See State v. Taylor, 744
S.W.2d 919, 922 (Tenn. Crim. App. 1987) (citing State v. Moss, 727 S.W.2d 229, 235 (Tenn.
1986)). Even if a defendant is presumed to be a favorable candidate for alternative sentencing under
Tennessee Code Annotated § 40-35-102(6), the statutory presumption of an alternative sentence may
be overcome if
                 (A) [c]onfinement is necessary to protect society by restraining a defendant
         who has a long history of criminal conduct;
                 (B) [c]onfinement is necessary to avoid depreciating the seriousness of the
         offense or confinement is particularly suited to provide an effective deterrence to
         others likely to commit similar offenses; or
                 (C) [m]easures less restrictive than confinement have frequently or recently
         been applied unsuccessfully to the defendant . . . .
Tenn. Code Ann. § 40-35-103(1)(A)-(C). In choosing among possible sentencing alternatives, the
trial court should also consider Tennessee Code Annotated § 40-35-103(5), which states, in pertinent
part, “The potential or lack of potential for the rehabilitation or treatment of a defendant should be
considered in determining the sentence alternative or length of a term to be imposed.” Id. § 40-35-
103(5); State v. Dowdy, 894 S.W.2d 301, 305 (Tenn. Crim. App. 1994).

        The Defendant in this case does not have a long history of criminal conduct. Nor have
measures less restrictive than confinement been frequently or recently applied unsuccessfully to the
Defendant. Furthermore, no evidence was offered that confinement would provide deterrence to
others likely to commit similar offenses. See State v. Hooper, 29 S.W.3d 1,6 (Tenn. 2000) (stating
that the record must contain some proof of the need for deterrence before a defendant who is
presumed eligible for alternative sentencing may be incarcerated). The remaining question, then,
is whether confinement is necessary in this case to avoid depreciating the seriousness of the offense.
To deny an alternative sentence solely based upon the nature of the offense, the circumstances of the
offense must be “‘especially violent, horrifying, shocking, reprehensible, offensive, or otherwise of
an excessive or exaggerated degree,’ and the nature of the offense must outweigh all factors favoring
probation.” State v. Hartley, 818 S.W.2d 370, 374-75 (Tenn. Crim. App. 1991) (citing State v.
Cleavor, 691 S.W.2d 541, 543 (Tenn. 1985)).

        We conclude that in this case, confinement is necessary “to avoid depreciating the
seriousness of the offense.” Tenn. Code Ann. § 40-35-103(1)(B). We must again emphasize the
seriousness of the crimes in this case. The Defendant brought minor friends of his young daughter
to his home and provided alcohol and marijuana to the girls to gain their trust and friendship and to
gain access to the girls. According to the Defendant’s daughter, the Defendant asked her to ensure
that young girls often visited their home, and on at least one occasion, he also asked his daughter to


                                                -15-
ensure that one of her friends became inebriated while visiting them. He then sexually abused the
girls while they slept. We conclude that this evidence supports the trial court’s denial of alternative
sentencing.

       Accordingly, we REVERSE the Defendant’s conviction for sexual battery in case number
8652, count one and dismiss that charge. We AFFIRM the convictions and sentences for the
remaining counts, resulting in an effective sentence of eight years.




                                               ______________________________
                                               ROBERT W. WEDEMEYER, JUDGE




                                                 -16-
