State of Tennessee v. John T. Vine, II

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
September 17, 2013 Session

STATE OF TENNESSEE V. JOHN T. VINE, II

Appeal from the Criminal Court for Davidson County
No. 2009-D-3169 Seth Norman, Judge

No. M2012-02376-CCA-R3-CD Filed November 8, 2013

John T. Vine, II (“the Defendant”) was convicted by a jury of two counts of aggravated
sexual battery and one count of solicitation to commit aggravated sexual battery. Following
a sentencing hearing, the trial court sentenced the Defendant to an effective sentence of
twenty-two years’ incarceration. On appeal, the Defendant challenges the sufficiency of the
evidence supporting his convictions. He also argues that the trial court committed plain error
in admitting as evidence the videotaped recording of the Defendant’s interview with police.
Finally, the Defendant challenges the length of his sentences and the trial court’s imposition
of partially consecutive sentences. After a thorough review of the record and the applicable
law, we affirm the judgments of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments
of the Criminal Court Affirmed

J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON, P.J.,
and A LAN E. G LENN, J., joined.

Kathleen G. Morris (on appeal) and Newton Holiday (at trial), Nashville, Tennessee, for the
appellant, John T. Vine, II.

Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney
General; Victor S. (Torry) Johnson III, District Attorney General; and Sharon Reddick,
Assistant District Attorney General, for the appellee, State of Tennessee.
 OPINION

Factual and Procedural Background

A Davidson County Grand Jury indicted the Defendant on two counts of aggravated
sexual battery and one count of solicitation of a minor. The Defendant proceeded to a jury
trial on May 21-22, 2012.

LS1 was sixteen years old at the time of trial. She testified that her mother (“Mother”)
was primarily responsible for raising her and her four older brothers. She identified the
Defendant and stated that she met him through her church. She had known him as long as
she could remember and considered him a “grandfather-type of figure.” LS continued, “He
would pick me up from school, spend time with me, take me to his house, we’d go out to eat,
like family occasions and family meetings.” The Defendant asked that LS and her brothers
call him “Granddad, grandfather.”

Around the time that LS was eleven years old, approximately 2006 to 2007, her
relationship with the Defendant began to change. On the first occasion, LS was in the
kitchen of the Defendant’s house. The Defendant asked LS for a hug, and when they
hugged, he placed his hands on her “behind.” LS was not sure “if it was something that was
supposed to be done,” so she did not tell anyone about the incident. She clarified later that
the Defendant touched her over her clothes. As LS got older, the Defendant would take
pictures of LS’s backside, which LS found unusual.

One night, LS spent the night with the Defendant at his house. She had not spent the
night with him before, but her “mom just had [her] spend the night.” LS went to sleep in the
guest bedroom. At some point, she woke up and realized that “[h]e was behind [her] – [she]
just felt him moaning, and . . . that his toes was [sic] on [hers].” She also remembered that
“his hand was around [her] waist.” LS went back to sleep, and when she woke up, she was
lying at the foot of his bed. She was confused at the time as to how she got there. The
Defendant told her that, if Mother asked, LS should say that she slept in the guest bedroom.

On another occasion, she was in the car with the Defendant, and he told her “about
sex, the penis, and sex positions, and how women can masturbate.” She continued, “He was
telling me how women have to drop down and how the guys have to move their penis in
order for it to go in.” LS remembered him telling her that it was more comfortable for
women to use lotion with their two fingers when they masturbate.

1
It is the policy of this Court not to use the names of victims of sexual crimes.

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 At some point, the Defendant told LS that she would need to let him touch her “for
all of the nice things he had done for [her] and [her] family.” Regarding one occasion, LS
recalled, “My bathing suit was too small so he said that he would buy me another one, but
in order to do that I would have to let him see me in my small bathing suit.” The Defendant
“got mad” when LS refused his request.

On another occasion, LS was alone with the Defendant in his office at church. The
Defendant told LS that she was “ashy” and that he had some lotion. LS recalled, “He just
told me to come here and he put lotion down my butt.” She continued, “He rubbed some
lotion on his hands, and then he placed his hands down my pants.” She clarified that the
Defendant put his hands down the back of her pants “[o]n the skin” while she was standing
up. In the car on the way home, the Defendant told LS “that he had a dream about [her] and
that he just hoped that God wouldn’t let him have dreams about [her] like that, about him
touching [her].” At this point, LS became concerned about the way the Defendant treated
her.

LS testified that, on one occasion, she called the Defendant to ask him to order pizza
for her. According to LS, he told her, “I will order you the pizza . . . but . . . you have to do
something for me.” She asked if it was for him to see her in her bathing suit, and he said,
“No, something else. . . . You have to let me touch you.” LS told the Defendant, “No, and
if you try then I am not going to come over to your house anymore and I am not going to be
around you.” She agreed that it was common for the Defendant to bring food to her and her
brothers.

After this conversation, LS decided that she needed to tell someone about these
incidents. She first told a friend her age, and then she decided to tell Mother. LS’s friend
had told LS that a “grandfather” was not supposed to treat her like the Defendant had treated
her. LS worried about telling Mother because of everything that the Defendant did to help
her family and was afraid that all of it might end. According to LS, when she told Mother,
“[Mother] was hurt, she was shocked, she was surprised, she was just confused about
everything.” LS believed that Mother reported these incidents to the police that day. LS
eventually spoke with Detective Maria Sexton regarding these incidents.

On cross-examination, LS stated that, around the time that she slept over at the
Defendant’s house, she routinely slept with Mother at her home. She did not recall being
scared of the dark or being in the guestroom by herself when she spent the night with the
Defendant. She recalled that, when she found the Defendant in the guest bed with her, she
was under the covers, and he was not. According to LS, the Defendant was moaning, and
she did not believe that the sound could have been the Defendant’s snoring.

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 LS confirmed that, when the Defendant bought her a new bathing suit, he did not
watch her try it on. She stated that, when he rubbed her “butt” in his office at church, he used
both hands. When the Defendant offered to buy LS pizza if she let him touch her, she
believed that the Defendant meant “touching” in a sexual way.

LS identified a document she compiled of these instances with the Defendant, and she
acknowledged that the incident regarding the Defendant’s hugging her in his kitchen was not
on the list. Other people were in the house on that occasion, but those people did not see the
incident. LS agreed that, when all of these events occurred, she was going through puberty.
She confirmed that she had questions about this stage of life and felt comfortable talking
about it with the Defendant.

Mother testified that LS was the youngest of her five children. Mother met the
Defendant at church in 1998. At that time, the Defendant was an associate minister at the
church, and part of his responsibilities was working with children. Mother continued,

[The Defendant] sort of like adopted us as his family, and he would help us
with things, like financially. He would help the children in school, like be an
advocate you could say. Anything that they were dealing with he would help
out, anything concerning school, buying clothes, or help us with food.

Mother confirmed that the Defendant helped pay some of her bills on occasion. At
first, her children called the Defendant “Uncle Vine,” and at some point they began calling
him “grandaddy.” The Defendant took Mother and her children to Chicago to meet his
blood-related family. She stated, “I was really thankful that [the Defendant] took such a deep
concern of [her children] because I never had no [sic] one to reach out to my children like
that before.”

At some point, the Defendant left the church Mother attended and began working at
a different church, but his relationship with her family did not change. Later on, one Sunday
morning, LS told Mother that “[the Defendant] had touched [LS], went in her pants with
some lotion – rubbed her body down with some lotion in her pants and was taking pictures
of her.” Mother told a friend and her pastor at church, and then she confronted the
Defendant. Mother testified regarding this conversation,

He dropped down his head and he said, I’m so sorry. He said, I am a fool, and
God forgives fools. He said, I did that. I said, Why? . . . He said, I get lonely
sometimes. He said, I know that was wrong and I’m so sorry, I hope that y’all
can forgive me one day.

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 As she left his house, he told her, “Call me if you need any money.” Sometime after
this conversation, she reported the situation to the police. Mother and LS spoke separately
with the detective regarding these incidents. Mother agreed to call the Defendant while the
detective listened and recorded the conversation. She had not had any communication with
the Defendant since this phone call.

On cross-examination, Mother acknowledged that the Defendant had told her about
his discussions with LS regarding puberty and that LS felt more comfortable speaking about
these matters with the Defendant instead of her. The Defendant suggested to Mother that she
should give LS birth control at eleven years old, and Mother discarded his suggestion.

Pastor Bruce Maxwell testified that he had been the pastor at Lake Providence
Missionary Baptist Church for thirty-six years. He estimated that the church had
approximately 5,800 members. He became acquainted with Mother and her family when
they started attending that church approximately ten to twelve years prior to trial. The
Defendant became involved in the church approximately twenty years prior to trial, when the
Defendant became an associate minister. Part of the Defendant’s involvement was working
with children and youth. Pastor Maxwell explained that the church had a policy that, “[i]n
order that there not be any type of situation that arises as to where there is indiscretion where
there is a child’s word against an adult, there should always be other adults who are present
at that time within that ministry.” He confirmed that he had had individual conversations
with the Defendant regarding “appropriate interactions with young people within the
church.” Pastor Maxwell was aware that, when the Defendant left the church, the Defendant
maintained a relationship with Mother and her family. Pastor Maxwell, however, was not
aware of the extent of that relationship.

Pastor Maxwell stated that, in the summer of 2008, Mother called him in tears and told
him what had happened to LS. Most of the conversation took place over the phone, and then
they spoke in person at church regarding the incidents. He encouraged Mother to contact the
police. Shortly after his conversation with Mother, the Defendant came to his office. Pastor
Maxwell testified,

[The Defendant] faked a cry to try to squeeze out a tear and I asked him, What
have you done, and why did you do it? He was sitting there, and he was
shaking his head. I asked him specifically, What he had done and he told me
at that time that he had gotten carried away. He had started to put lotion on the
child’s back, and he did tell me he tried to get into her panties to get to her
privates.

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 The Defendant told Pastor Maxwell that he was seeking counseling. On cross-
examination, Pastor Maxwell stated that Mother had told him that the incident with the lotion
occurred at the Defendant’s home. He confirmed that he had had numerous disagreements
with the Defendant.

Detective Maria Sexton testified that, in 2008, she was working in the sex crimes
division of the Metropolitan Nashville Police Department (“MNPD”). Once assigned to the
present case, she decided to speak with LS directly, based on LS’s age and the fact that LS
“seemed very articulate.” Detective Sexton did not believe that LS had any trouble
understanding her questions. Although she acknowledged that children sometimes “err on
the side of exaggeration,” she stated that LS “seemed like she was very careful with the
truth.”

Detective Sexton stated that in most investigations they can expect physical evidence
to be available for seventy-two hours following an alleged incident. She would not expect
to obtain any physical evidence of an incident in which an individual allegedly “fondled [a
child’s] buttocks.” Accordingly, in the present case, Detective Sexton believed that the best
way to corroborate LS’s allegations was to have a “controlled phone call” in which Mother
initiated a recorded telephone conversation with the Defendant. She identified at trial the
recording of this conversation, which occurred on June 5, 2008, and it was played for the
jury. In that call, the Defendant said to Mother, “I told the pastor that . . . I was inappropriate
with a girl who loved me as a grandfather.”

Detective Sexton denied finding any motive for LS or Mother to falsely accuse the
Defendant of these actions. She stated, “I mean, actually by coming forward with this they
jeopardized their support, not only the emotional support but the financial support they had
been receiving from him.” In her investigation, she learned that the Defendant once had been
a teacher at Hermitage Hall, which is a residential treatment facility for juvenile male sexual
offenders.

Detective Sexton called the Defendant at some point later and asked him to come to
the police station to tell “his side of the story.” He acquiesced and drove himself to and from
the station for the interview. In this discussion, the Defendant was not as “forthcoming”
about his actions in these situations as he had been with Mother. The State played the
videotaped recording of this interview in court.

On cross-examination, Detective Sexton stated that the Defendant was free to leave
the interview at any point and that he was not in custody. She also acknowledged that the
handwritten list by LS of the incidents with the Defendant did not include the incident in the
kitchen. On redirect examination, however, Detective Sexton stated that LS told her that the

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incident in the kitchen was the first incident with the Defendant that LS could remember.
LS told Detective Sexton that LS and the Defendant were in the kitchen while Mother was
in the living room and that the Defendant “asked [LS] for a hug and he touched her butt after
the hug.” Upon further cross-examination, Detective Sexton identified a police report from
the original patrol officer in the case and noted that the report did not include an allegation
regarding the incident in the kitchen. She noted, however, that patrol officers, in situations
like this one, are not supposed to ask the children for details regarding these allegations.

At the conclusion of the State’s proof, the defense moved for a judgment of acquittal,
which the trial court denied. The Defendant chose not to testify and presented no proof.
Following deliberations, the jury found the Defendant guilty of two counts of aggravated
sexual battery and one count of solicitation of a minor.

At the sentencing hearing, the presentence report was admitted as an exhibit without
objection, and it is included in the record before us. TS2 testified that, in September 1998,
she was twelve years old. The Defendant assisted her family because they had financial
hardship and her mother recently had passed away. TS recalled the first time that she went
to the Defendant’s home as follows:

It was me, and my brother, and my auntie and we went to [the Defendant’s]
house and he was taking photographs of us. He left my brother and auntie
downstairs watching TV, and he took me upstairs to his bedroom and was
taking pictures of me on his bed in his bedroom, and he had me suck his thang
[sic], and then he laid me on my back and had sex with me.

TS clarified that the Defendant’s “thang” was his penis. She experienced this
behavior from the Defendant on more than one occasion. The Defendant had told her not to
tell anyone, so she did not say anything about these incidents until the charges arose in the
present case.

Pastor Bruce Maxwell testified regarding his past conflicts with the Defendant as
follows:

The prior incident that happened with [the Defendant] was the fact that
there was another family in our church and – what took place was he had
become close to that family also, and the allegation of events that the child
brought against him was the fact that he had propositioned her for oral sex as

2
TS is an individual unrelated to this case who also alleged sexual misconduct by the Defendant.

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 well as he had began [sic] to feel upon her inappropriately for an older man to
do so.

With that situation at that time the church did not understand, or neither
did I, what the ramifications were as far as the law is concerned. We thought
that we had handled that situation appropriately in putting him out of the pulpit
along with asking him to leave the church.

On cross-examination, Pastor Maxwell acknowledged that he did not contact police
when he learned about this first allegation involving the Defendant. He stated, however, that
when Mother approached him about the incidents with LS and the Defendant, he urged
Mother to contact police.

Pastor Maxwell stated that, because of the Defendant’s behavior, his church has
changed their policy in that the people who work with youth must undergo a background
check. He stated,

I loved [the Defendant] dearly and I still – I hold no animosity towards [the
Defendant], I want this court to know that. I still love him, but what I don’t
like and what I cannot stand is what he did to a child. I have lost sleep over
knowing he was allowed in our congregation to do what he did to children.

Mother read a statement she prepared for the sentencing hearing which stated:

My family and I looked up to [the Defendant] as a man of God. To me, that
is a big title. We trusted him with our all and to go through such lengths to
retrain that trust I think is very cruel.

He shattered my children’s faith. They don’t trust people in the church,
so they don’t go any longer. He misrepresented God to the fullest. We loved
him so much but not more than God. I am here standing up for God, so I ask
Your Honor to allow [the Defendant] the maximum time he can receive for the
betrayal of myself, my daughter, as well as my family. Thank you.

Tracie Ann Vine-Walker, the Defendant’s daughter, testified,

What we have heard today is not the father I know. He has raised me to be
honorable, upstanding, and loving. . . . He has always been committed to the
community that he has lived in by teaching us to do volunteer work and try to
make our communities better.

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 He has done things like teaching men 56 years old that never knew how
to write their name how to read and write. He has given back to the
community for health issues, teaching people about HIV, and helping people
who had been on drugs that their families had turned away from them. He is
an honorabl[y] discharged Vietnam Veteran, and I just – I don’t condone
anything, but I just wanted people to know that the father I know is not what
you are hearing today.

She stated that the Defendant “has had a heart attack, he’s diabetic, and he suffers from Post-
Traumatic Stress Disorder.”

The Defendant testified,

I – there’s no excuse for my inappropriate behavior so I – I offer no excuse.
I do offer to [LS’s] family the sincere apology for the anguish and the pain that
I have caused them. I know that they have suffered, particularly the mother
and daughter, greatly, and I’m so very very sorry for that. I am also sorry for
my family and all that they are going through with the shame that I brought
onto them. I apologize to anyone that has been impacted by the inappropriate
actions that I undertook.

I have tried to give back to my community. I have served on the Foster
Care Review Board of Davidson County, and was a court appointed special
advocate for Judge Green for a short period of time, but none of that erases the
inappropriateness of what I have done. I can only pray that, Your Honor, you
would find it in your heart to show mercy on me as God has shown mercy on
you.

I’m 68 years old and I hope that I don’t die in prison, but if that is
where the Lord takes me from then that is where I will go. What I do realize,
beyond a shadow of a doubt, is that since I have been incarcerated for these
last couple of months I have taught G.E.D. preparation for many of the men
that are in there. We’ve had Bible study for – good or bad, I’m still a minister.

I know God has used all types of people with checkered backgrounds
to serve him, so I am still serving the Lord there. Wherever I go, whether it is
outside of the institution or inside, I plan to continue to teach and prepare
people to get their G.E.D. and improve their lives.

....

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 So I – I hope and I pray that my sentences would be concurrent and that
I would be given an opportunity to serve those sentences and to get out. I’m
prepared for whatever programs are available to me and I shall certainly, with
a whole heart, participate in them.

On cross-examination, the Defendant acknowledged that the Department of Children’s
Services investigated similar allegations against the Defendant to those in this case made by
a male child from Hermitage Hall.

At the conclusion of the sentencing hearing, the State asked the trial court to consider
the first statutory enhancement factor – that the Defendant had a previous history of criminal
convictions or behavior. The State also asked that the trial court consider the fourteenth
statutory enhancement factor – that the Defendant abused a position of private trust.
Additionally, the State requested consecutive sentencing in light of the Defendant’s two
convictions involving sexual abuse of a minor and given the Defendant’s relationship with
LS and abuse over a period of time. The defense asked that the trial court consider
mitigating factors such as the Defendant’s age and health.

The trial court initially stated, “There is no question in my mind that [the Defendant]
is a child predator and has been for a number of years, and it is The Court’s duty to sentence
him.” It applied both the first and fourteenth statutory enhancement factors and found that
no mitigating factors applied. Accordingly, the trial court sentenced the Defendant as a
Range I offender to eleven years for each of his aggravated sexual battery convictions and
five years for his solicitation of a minor conviction.

With respect to consecutive sentencing, the trial court stated, “That gets me back to
[Tennessee Code Annotated section] 40-35-115, multiple offenses. I think the General is
right on when the General cites Factor No. 5. It is the judgment of The Court that Counts 1
and 2 will run consecutive, one with the other, and Count 3 will run concurrent.”
Accordingly, the trial court sentenced the Defendant to an effective sentence of twenty-two
years’ incarceration.

The Defendant filed a motion for new trial,3 which the trial court subsequently denied.
The Defendant timely appealed. On appeal, the Defendant argues that the trial court
committed plain error in admitting as evidence a videotape of the Defendant’s interview with

3
In his motion for new trial, the Defendant did not argue that the trial court erred in admitting his
videotaped interview with police. Thus, on appeal, he asserts that we should review this issue as a matter
of plain error.

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police; challenges the sufficiency of the evidence supporting his convictions; and asserts that
the trial court erred in sentencing the Defendant.

Analysis

The Defendant’s Interview

The Defendant first argues that the trial court erred in admitting as evidence the
Defendant’s videotaped interview with police. The Defendant, however, failed to object to
the admission of the videotape at trial or address it in his motion for new trial. Therefore,
this issue is waived. See State v. Gilley, 297 S.W.3d 739, 762 (Tenn. Crim. App. 2008)
(“The failure to make a contemporaneous objection constitutes waiver of the issue on
appeal.”); Tenn. R. App. P. 3(e), 36(a). When an issue is waived on appeal, however, this
Court nevertheless may grant relief on a determination that plain error was committed. See
Tenn. R. App. P. 36(b); State v. Adkisson, 899 S.W.2d 626, 636-38 (Tenn. Crim. App.
1994). We will grant relief for plain error only when five prerequisites are satisfied:

(1) the record clearly establishes what occurred in the trial court, (2) a clear
and unequivocal rule of law was breached, (3) a substantial right of the
accused was adversely affected, (4) the accused did not waive the issue for
tactical reasons, and (5) consideration of the error is necessary to do substantial
justice.

State v. Banks, 271 S.W.3d 90, 119-20 (Tenn. 2008); see also Adkisson, 899 S.W.2d at 641-
42. The Defendant bears the burden of demonstrating plain error, and this Court need not
consider all five factors “when it is clear from the record that at least one of them cannot be
satisfied.” State v. Bledsoe, 226 S.W.3d 349, 355 (Tenn. 2007).

The Defendant first argues that this evidence should have been excluded under
Tennessee Rule of Evidence 403 based on its prejudice to the Defendant.4 The Defendant
also argues that the admission of the video violated the Confrontation Clause because it
contained the substance of testimonial statements by the victim. Finally, the Defendant
asserts that LS’s statements as posed by the officers in the videotaped interview were
inadmissible prior consistent statements.

Here, we need not determine whether the trial court erred in admitting the videotaped
interview on any of these grounds because we conclude that substantial justice does not

4
Tennessee Rule of Evidence 403 provides that relevant evidence may be excluded “if its probative
value is substantially outweighed by the danger of unfair prejudice.”

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require relief. See State v. Hatcher, 310 S.W.3d 788, 808 (Tenn. 2010). Specifically, the
Defendant has failed to establish that “the error was so significant that it ‘probably changed
the outcome of the trial.’” See id. (quoting State v. Smith, 24 S.W.3d 274, 282-83 (Tenn.
2000)). The jury had before it the testimony of LS regarding these specific encounters with
the Defendant. Moreover, Mother and Pastor Maxwell testified that the Defendant, when
confronted with these allegations, apologized for his actions. Therefore, this issue does not
rise to the level of plain error, and the Defendant is entitled to no relief.

Sufficiency of the Evidence

The Defendant next contends that the evidence was not sufficient to support his
convictions. Our standard of review regarding sufficiency of the evidence 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 (1979); see also Tenn. R. App. P. 13(e). After a jury finds a
defendant guilty, the presumption of innocence is removed and replaced with a presumption
of guilt. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). Consequently, the defendant
has the burden on appeal of demonstrating why the evidence was insufficient to support the
jury’s verdict. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

The appellate court does not weigh the evidence anew. Rather, “a jury verdict,
approved by the trial judge, accredits the testimony of the witnesses for the State and resolves
all conflicts” in the testimony and all reasonably drawn inferences in favor of the State. State
v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). Thus, “the State is entitled to the strongest
legitimate view of the evidence and all reasonable or legitimate inferences which may be
drawn therefrom.” Id. (citation omitted). This standard of review applies to guilty verdicts
based upon direct or circumstantial evidence. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn.
2011) (citing State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). In Dorantes, our supreme
court adopted the United States Supreme Court standard that “direct and circumstantial
evidence should be treated the same when weighing the sufficiency of such evidence.” Id.
at 381. Accordingly, the evidence need not exclude every other reasonable hypothesis except
that of the defendant’s guilt, provided the defendant’s guilt is established beyond a
reasonable doubt. Id.

The weight and credibility given to the testimony of witnesses, and the reconciliation
of conflicts in that testimony, are questions of fact. State v. Bland, 958 S.W.2d 651, 659
(Tenn. 1997). Furthermore, it is not the role of this Court to reevaluate the evidence or
substitute its own inferences for those drawn by the jury. State v. Winters, 137 S.W.3d 641,
655 (Tenn. Crim. App. 2003) (citations omitted).

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 Aggravated Sexual Battery

Aggravated sexual battery is defined as “unlawful sexual contact with a victim by the
defendant or the defendant by a victim” where the victim is less than thirteen years old.
Tenn. Code Ann. § 39-13-504(a)(4) (2006). “Sexual contact” is defined as including “the
intentional touching of the victim’s . . . intimate parts, or the intentional touching of the
clothing covering the immediate area of the victim’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) (2006). “Intimate parts includes the primary genital area,
groin, inner thigh, buttock or breast of a human being.” Id. § 39-13-501(2).

In this case, the State elected two specific instances of unlawful sexual contact
between the victim and the Defendant: the Defendant’s touching of LS’s buttocks in the
Defendant’s kitchen, and the Defendant’s touching of LS’s buttocks in the Defendant’s
office at church. In support of these alleged criminal acts, LS testified that, in the first
instance, she was in the kitchen of the Defendant’s house. The Defendant asked LS for a
hug, and when they hugged, he placed his hands on her “behind.” She clarified later that the
Defendant touched her over her clothes. As to the second instance, LS testified regarding
a time that she was alone with the Defendant in his office at church. The Defendant told LS
that she was “ashy” and that he had some lotion. LS recalled, “He just told me to come here
and he put lotion down my butt.” She continued, “He rubbed some lotion on his hands, and
then he placed his hands down my pants.” She clarified that the Defendant put his hands
down the back of her pants “[o]n the skin” while she was standing up.

Additionally, Mother testified that she eventually confronted the Defendant regarding
this behavior. She stated,

He dropped down his head and he said, I’m so sorry. He said, I am a fool, and
God forgives fools. He said, I did that. I said, Why? . . . He said, I get lonely
sometimes. He said, I know that was wrong and I’m so sorry, I hope that y’all
can forgive me one day.

Moreover, Pastor Maxwell testified regarding his conversation with the Defendant as
follows:

[The Defendant] faked a cry to try to squeeze out a tear and I asked him, What
have you done, and why did you do it? He was sitting there, and he was
shaking his head. I asked him specifically, What he had done and he told me
at that time that he had gotten carried away. He had started to put lotion on the

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 child’s back, and he did tell me he tried to get into her panties to get to her
privates.

The Defendant contends that the State failed to establish that the Defendant’s touching
could “be reasonably construed as being for the purpose of sexual arousal or gratification.”
Tenn. Code Ann. § 39-13-501(6). We disagree. LS testified that, on several occasions, the
Defendant took pictures of her backside. One night, LS spent the night with the Defendant
at his house. At some point, she woke up and realized that “[h]e was behind [her] – [she] just
felt him moaning, and . . . that his toes was [sic] on [hers].” She also remembered that “his
hand was around [her] waist.” LS went back to sleep, and when she woke up, she was lying
at the foot of his bed. She was confused at the time as to how she got there. The Defendant
told her that, if her mother (“Mother”) asked, LS should say that she slept in the guest
bedroom.

After the incident in the Defendant’s office, he told LS “that he had a dream about
[her] and that he just hoped God wouldn’t let him have dreams about [her] like that, about
him touching [her].” Moreover, the Defendant apologized to Pastor Maxwell for getting
“carried away” and told Mother, “I’m so sorry. . . . I am a fool, and God forgives fools. . . .
I did that. . . . I get lonely sometimes.”

Therefore, viewing the evidence with the strongest legitimate view in favor of the
State, see Harris, 839 S.W.2d at 75, we conclude that the State introduced sufficient evidence
for a jury to convict the Defendant of both counts of aggravated sexual battery. Accordingly,
the Defendant is entitled to no relief on this issue.

Solicitation of a Minor to Commit Aggravated Sexual Battery

Solicitation of a minor to commit aggravated sexual battery is committed when

a person eighteen (18) years of age or older, by means of oral, written or
electronic communication, electronic mail or Internet services, directly or
through another, to intentionally command, request, hire, persuade, invite or
attempt to induce a person whom the person making the solicitation knows, or
should know, is less than eighteen (18) years of age, . . . engage[s] in conduct
that, if completed, would constitute a violation by the soliciting adult of . . . (4)
[a]ggravated sexual battery, pursuant to §39-13-504.

Tenn. Code Ann. § 39-13-528(a) (2006).

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 The State elected as its specific instance of alleged solicitation the time in which the
Defendant told LS that he would buy her a pizza if she would let him touch her. At trial,
LS testified that, on one occasion, she called the Defendant to ask him to order pizza for
her. According to LS, he told her, “I will order you the pizza . . . but . . . you have to do
something for me.” She asked if it was for him to see her in her bathing suit, and he said,
“No, something else. . . . You have to let me touch you.” LS believed that the Defendant
meant “touching” in a sexual way. In this regard, LS testified, “I already knew that it was
a sexual contact because it is different between touching and somebody just with your hands
just somewhere that is not on your private parts, but for him to make that clear statement
‘touching’ that means it’s in a different way.”

Viewing the evidence with the strongest legitimate view in favor of the State, see
Harris, 839 S.W.2d at 75, we conclude that the State introduced sufficient evidence for a jury
to find that the Defendant, through oral communication, requested that LS allow him to
commit aggravated sexual battery by “touching” her. Accordingly, the Defendant is entitled
to no relief on this issue.

Sentencing

The Defendant also challenges the length of his sentence and the trial court’s ordering
of partially consecutive sentences.

Prior to imposing a sentence, a trial court is required to consider the following:

(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 mitigating and
enhancement factors set out in [Tennessee Code Annotated sections ] 40-35-
113 and 40-35-114;

(6) Any statistical information provided by the administrative office of the
courts as to sentencing practices for similar offenses in Tennessee; and

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 (7) Any statement the defendant wishes to make in the defendant’s own behalf
about sentencing.

Tenn. Code Ann. § 40-35-210(b) (2006).

The referenced “principles of sentencing” include the following: “the imposition of
a sentence justly deserved in relation to the seriousness of the offense” and “[e]ncouraging
effective rehabilitation of those defendants, where reasonably feasible, by promoting the use
of alternative sentencing and correctional programs.” Tenn. Code Ann. § 40-35-102(1),
(3)(C) (2006). Moreover, “[t]he sentence imposed should be the least severe measure
necessary to achieve the purposes for which the sentence is imposed,” and “[t]he potential
or lack of potential for the rehabilitation or treatment of the defendant should be considered
in determining the sentence alternative or length of a term to be imposed.” Id. § 40-35-
103(4), (5) (2006).

Our Sentencing Act also mandates as follows:

In imposing a specific sentence within the range of punishment, the court shall
consider, but is not bound by, the following advisory sentencing guidelines:

(1) The minimum sentence within the range of punishment is the
sentence that should be imposed, because the general assembly set the
minimum length of sentence for each felony class to reflect the relative
seriousness of each criminal offense in the felony classifications; and

(2) The sentence length within the range should be adjusted, as
appropriate, by the presence or absence of mitigating and enhancement factors
set out in [Tennessee Code Annotated sections] 40-35-113 and 40-35-114.

Tenn. Code Ann. § 40-35-210(c).

Additionally, a sentence including confinement should be based on the following
considerations:

(A) Confinement is necessary to protect society by restraining a
defendant who has a long history of criminal conduct;

(B) Confinement 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

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 (C) Measures less restrictive than confinement have frequently or
recently been applied unsuccessfully to the defendant.

Tenn. Code Ann. § 40-35-103(1).

When the record establishes that the trial court imposed a sentence within the
appropriate range that reflects a “proper application of the purposes and principles of our
Sentencing Act,” this Court reviews the trial court’s sentencing decision under an abuse of
discretion standard with a presumption of reasonableness. State v. Bise, 380 S.W.3d 682,
707 (Tenn. 2012). “[A] trial court’s misapplication of an enhancement or mitigating factor
does not remove the presumption of reasonableness from its sentencing decision.” Id. at 709.
This Court will uphold the trial court’s sentencing decision “so long as it is within the
appropriate range and the record demonstrates that the sentence is otherwise in compliance
with the purposes and principles listed by statute.” Id. at 709-10. Moreover, under those
circumstances, we may not disturb the sentence even if we had preferred a different result.
See State v. Carter, 254 S.W.3d 335, 346 (Tenn. 2008). The party appealing the sentence has
the burden of demonstrating its impropriety. Tenn. Code Ann. § 40-35-401 (2006), Sent’g
Comm’n Cmts.; see also State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

The sentencing range for aggravated sexual battery, a Class B felony, see Tenn. Code
Ann. § 39-13-504, for a Range I offender is between eight and twelve years, see id. § 40-35-
112(a)(2) (2006). The sentencing range for solicitation of a minor to commit aggravated
sexual battery, a Class C felony, see id. § 39-13-528, for a Range I offender is between three
and six years, see id. § 40-35-112(a)(3). After determining that the Defendant was a Range
I offender, see Tenn. Code Ann. § 40-35-105 (2006), the trial court applied as enhancement
factors the Defendant’s past criminal behavior and the Defendant’s abuse of a position of
private trust. See id. § 40-35-114(1), (14) (2006). The trial court found that no mitigating
factors applied.

The record supports the trial court’s application of both enhancement factors.
Initially, we look at the first enhancement factor: that “[t]he defendant has a previous history
of criminal convictions or criminal behavior, in addition to those necessary to establish the
appropriate range.” See id. § 40-35-114(1). At the sentencing hearing, TS, an individual
unrelated to the present case, testified that, when she was approximately twelve years old,

It was me, and my brother, and my auntie and we went to [the Defendant’s]
house and he was taking photographs of us. He left my brother and auntie
downstairs watching TV, and he took me upstairs to his bedroom and was
taking pictures of me on his bed in his bedroom, and he had me suck his thang
[sic], and then he laid me on my back and had sex with me.

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 TS clarified that the Defendant’s “thang” was his penis. She experienced this
behavior from the Defendant on more than one occasion. Additionally, Pastor Maxwell
testified that the reason that the Defendant was asked to leave his church was because “he
had propositioned [a child] for oral sex as well as he had began [sic] to feel upon her
inappropriately.” Thus, given the testimony of other criminal behavior, the trial court’s
application of this factor was proper. See id.

Next, we look at the other factor applied by the trial court: that “[t]he defendant
abused a position of public or private trust.” See id. § 40-35-114(14). At the sentencing
hearing, Mother read the following statement:

My family and I looked up to [the Defendant] as a man of God. To me, that
is a big title. We trusted him with our all and to go through such lengths to
retrain that trust I think is very cruel.

He shattered my children’s faith. They don’t trust people in the church,
so they don’t go any longer. He misrepresented God to the fullest. We loved
him so much but not more than God. I am here standing up for God, so I ask
Your Honor to allow [the Defendant] the maximum time he can receive for the
betrayal of myself, my daughter, as well as my family. Thank you.

Additionally, LS testified about her relationship with the Defendant. She testified about his
position with the church and about the Defendant’s requesting that she call him “Granddad”
or “Grandfather.” Therefore, based upon this evidence, we hold that the trial court’s
application of this factor was proper. See id. Accordingly, the trial court did not abuse its
discretion in sentencing the Defendant to eleven years for each of his two aggravated sexual
battery convictions and five years for his solicitation of a minor conviction.5

Finally, the Defendant challenges the partial consecutive service of his sentences. The
Criminal Sentencing Reform Act of 1989 provides that a trial court may order consecutive
sentences on any one or more of several statutory bases. See Tenn. Code Ann. § 40-35-
115(b) (2006). One of those bases is that a preponderance of the evidence establishes that

[t]he defendant is convicted of two (2) or more statutory offenses involving
sexual abuse of a minor with consideration of the aggravating circumstances

5
We note that the trial court did not state on the record at the sentencing hearing that it considered
“[a]ny statistical information provided by the administrative office of the courts as to sentencing practices
for similar offenses in Tennessee.” See Tenn. Code Ann. § 40-35-210(b)(6). The sentencing statute requires
consideration of this information.

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 arising from the relationship between the defendant and victim or victims, the
time span of 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.

Tenn. Code Ann. § 40-35-115(b)(5). In addition to this criterion, “consecutive sentencing
is guided by the general sentencing principles providing that the length of a sentence be
‘justly deserved in relation to the seriousness of the offense’ and ‘no greater than that
deserved for the offense committed,’” although specific factual findings are not necessary.
State v. Imfeld, 70 S.W.3d 698, 708 (Tenn. 2002); see also Tenn. Code Ann. §§ 40-35-
102(1), -103(2); In re Sneed, 302 S.W.3d 825, 828-29 (Tenn. 2010).

With respect to consecutive sentencing, the trial court stated, “That gets me back to
40-35-115, multiple offenses. I think the General is right on when the General cites Factor
No. 5. It is the judgment of The Court that Counts 1 and 2 will run consecutive, one with the
other, and Count 3 will run concurrent.”

A review of the record in this case leads us to conclude that the evidence supports the
trial court’s imposition of partially consecutive sentences under Tennessee Code Annotated
section 40-35-115(b)(2). The Defendant was convicted of multiple offenses involving the
sexual abuse of a minor. LS testified regarding her encounters with the Defendant which
spanned a period of approximately one to two years. Additionally, the Defendant had
fostered a close-knit relationship with LS’s family over the course of several years in which
the family relied on him for financial and other support. Moreover, Mother, in her statement
at the sentencing hearing, told the trial court that, as a result of the Defendant’s behavior, the
Defendant “shattered [her] children’s faith. They don’t trust people in the church, so they
don’t go any longer.” Finally, TS testified about the Defendant’s prior undetected sexual
activity, and Pastor Maxwell testified to yet additional improper sexual behavior with another
minor by the Defendant. Therefore, we hold that the trial court imposed these sentences in
a manner consistent with the purposes, principles, and goals of the Sentencing Act. Thus,
the trial court did not err in imposing partially consecutive sentences. Accordingly, the
Defendant is entitled to no relief on this issue.

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 CONCLUSION

For the reasons set forth above, we affirm the judgments of the trial court.

_________________________________
JEFFREY S. BIVINS, JUDGE

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