          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT JACKSON

                          DECEMBER 1999 SESSION
                                                           FILED
                                                           March 6, 2000

                                                     Cecil Crowson, Jr.
STATE OF TENNESSEE,              *                  Appellate Court Clerk
                                       No. W1999-00009-CCA-R3-CD

             Appellee,           *     HAYWOOD COUNTY

VS.                              *     Honorable Bobby H. Capers, Judge
WILLIAM PADILLA,                 *     (Rape of a Child)

             Appellant.          *




FOR THE APPELLANT:                     FOR THE APPELLEE:
MARK JOHNSON                           PAUL G. SUMMERS
124 East Court Square                  Attorney General & Reporter
Trenton, TN 38302
                                       CLINTON J. MORGAN
                                       Counsel for the State
                                       425 Fifth Avenue North
                                       Nashville, TN 37243

                                       CLAYBURN L. PEEPLES
                                       District Attorney General
                                       109 East First Street
                                       Trenton, TN 38382




OPINION FILED: _______________


      AFFIRMED

JOHN EVERETT WILLIAMS,
Judge
                                     OPINION


                               INTRODUCTION


      The defendant, William Padilla, appeals from his Haywood County jury
conviction of one count of rape of a child. The defendant received 25 years, the
maximum sentence for a Range I standard offender. He appeals this conviction

and sentence, arguing that:

      (1) The evidence was insufficient to support the jury’s verdict; and
      (2) the sentence was excessive.

After careful review, we AFFIRM the judgment and sentence from the trial court.


                                         FACTS


      We set forth many of the relevant facts later in our analysis and, therefore,

provide only an outline here. On February 24, 1997, the defendant, a friend of the

victim’s family, stopped by their family business, the Bait Shop in Brownsville,
Tennessee. He volunteered to pick up a new heater for the shop and asked if their

four year-old daughter could go with him. This request was not unusual, as the

victim had accompanied the defendant on three or four previous trips.


      The defendant and the victim left in the defendant’s truck. Rather than

getting a heater, however, the defendant took the victim to a house located on

Poplar Corner Road in Brownsville. There, he sexually assaulted the victim. He

stole a heater from the residence and arrived at the Bait Shop with the victim
approximately one and one-half hours after their departure. At the shop, the victim

made comments suggestive of sexual abuse, but the aunt did not comprehend their

meaning.


      The next morning, the victim reported the sexual assault to her aunt who

contacted the police and filed a report. The defendant was arrested on a warrant
and later charged.



      At trial, the jury heard the testimony of, among others, the victim, the aunt,

an investigator, and various medical personnel. The defendant did not testify. The
jury convicted the defendant of one count of rape of a child.



      The trial court then held a sentencing hearing, where the trial judge
sentenced the defendant to 25 years, the maximum sentence. From this conviction

and sentencing the defendant now appeals.


                                        -2-
                                         ANALYSIS


                                Sufficiency of the Evidence


         The defendant first argues that the evidence was insufficient to support the

jury’s verdict.    Specifically, he argues that the evidence adduced at trial is

insufficient to prove “sexual penetration” within the meaning of Tennessee Code
Annotated § 39-13-501(7).



         When an accused challenges the sufficiency of the evidence, this Court must
review the record to determine if the evidence adduced during the trial was sufficient

“to support the findings by the trier of fact of guilt beyond a reasonable doubt.” See

Tenn. R. App. P. 13(e). This rule is applicable to findings of guilt predicated upon
direct evidence, circumstantial evidence, or a combination of direct and

circumstantial evidence. See State v. Brewer, 932 S.W.2d 1, 19 (Tenn. Crim. App.

1996).



         In determining the sufficiency of the evidence, this Court neither reweighs or

reevaluates the evidence. See State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.

1978). Nor may this Court substitute its inferences for those drawn by the trier of

fact from circumstantial evidence. See Liakas v. State, 286 S.W.2d 856, 859 (Tenn.
1956). To the contrary, this Court affords the state the strongest legitimate view of

the evidence contained in the record, as well as all reasonable and legitimate

inferences which may be drawn from the evidence. See State v. Tuttle, 914 S.W.2d

926, 932 (Tenn. Crim. App. 1995).



         Questions concerning the credibility of the witnesses, the weight and value
to be given the evidence, and all factual issues raised by the evidence are resolved

by the trier of fact, not this Court. Id. In State v. Grace, 493 S.W.2d 474, 476

(Tenn. 1973), the Tennessee Supreme Court stated, “A guilty verdict by the jury,

approved by the trial judge, accredits the testimony of the witnesses for the State
and resolves all conflicts in favor of the theory of the State.”



         Because a verdict of guilty removes the presumption of innocence and

replaces it with a presumption of guilt, the accused has the burden of illustrating to

                                          -3-
this Court why the evidence is insufficient to support the verdict returned by the trier

of fact. See State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982); Grace, 493

S.W.2d at 476.



        In this case, the crux of the defendant’s sufficiency claim relates to the

proof of “penetration” offered by the state. That is, the defendant claims that

the proof at trial relating to penetration was insufficient for the jury to conclude

that penetration actually occurred. Accordingly, he argues that the proof at

best    establishes sexual abuse or aggravated sexual assault.1                             Having

reviewed the transcript as well as the defendant’s arguments, we disagree.

W hile the evidence at trial establishing penetration was not overwhelming, the

following re levant pro of sufficiently s upporte d the verd ict.



        The victim testified that the defend ant took h er back to a house w here

he “licked her coo tie” and stu ck his “we enie in he r.”2 She said it felt hard and

that it went in about half of an inch. At the time, she said she was lying down

on the couch. She then saw “pee” coming out of his “weenie.”3



        Brownsville Police Department Officer Blackburn testified that he took the
victim to the police department on the morning of February 25 and notified Child

Services. The child’s clothes, blanket, a sheet, and blood taken from the defendant

were analyzed. The blanket and the sheet came from the house at 3635 Poplar
Corner. A forensic scientist testified that she found semen on the victim’s panties

and the sheet. DNA tests later confirmed that the semen profiles matched the

defendant.



        Mary Burns, the owner of the residence at 3635 Poplar Corner, testified that

her son had given the defendant keys to the house. Further, she explained that on



        1
           Having reviewed the entire record, this Court agrees with the defendant’s apparent
concession that sufficient evidence existed to support a finding of sexual assault or aggravated
sexual assault. The child’s testimony, along with very convincing physical and medical evidence,
establish ed a se xual ass ault or agg ravated sexua l assault.
         2
           The vic tim refe rs to her va gina as “c ootie” and the defe ndant’s p enis as “w eenie.”
         3
           Testimony and physical evidence established that this reference describes the
defendant’s ejaculation.

                                                 -4-
February 28 she noticed that the couch was disheveled, food was missing, 4 and the
heater was missing.



         Finally, the state offered testimony of Susan Hamm, the Direct Supervisor at

Child Services, and Cathy Cobb, a counselor at Pathways. Both testified that the

victim had described the sexual acts to them and identified the defendant as the
perpetrator.



         Upon this testimony, the jury returned a verdict of guilty. However, the
defendant contends that certain evidence he introduced preponderates against this

finding. 5     Specifically, the defendant makes much of Dr. Durham’s testimony; 6 in

relevant part:
         STATE: Assuming that [the victim] testified that in her estimation she
           was penetrated a half an inch by – by the defendant, in your
           opinion would that indicate that his penis had made contact with
           her hymen?
         DR. DURHAM: It may have.
         STATE: Would that be about – in your opinion, would that be
           consistent with pushing against the hymen?
         DR. DURHAM: Yes.
         STATE: And would that be consistent with the length or the distance
           you would have to go to get through the labia and into the vaginal
           opening?
         DR. DURHAM: Yes.
         STATE: Now as I understand, you are not purporting to offer this jury
           an opinion as to whether the child was or was not sexually
           molested in someway.
         DR. DURHAM: Correct.
         STATE: You’re just saying that her hymen was intact?
         DR. DURHAM: Correct.
         STATE: And there still could have been a half inch of penetration as
           the child described?
         DR. DURHAM: Correct.
         STATE: And left her hymen intact?
         DR. DURHAM: I, just would say I didn’t see any evidence – physical
           evidence.


         While this testimony does not bolster the victim’s report of penetration, the

testimony is not inconsistent with the victim’s testimony. Instead, the testimony

supports a reasonable inference that penetration occurred but the hymen was not
torn. Such penetration still satisfies the statutory requirement:



         4
            Testimony established that the victim had eaten certain foods while at the Poplar Corner
residence, notably, the exact foods described by Burns.
         5
            In fac t, the d efen dan t also ques tions the vic tim’s cred ibility. Th e m atter of cre dibility is
ess entia lly for th e jury. T he trie r of fa ct wa s in th e bes t pos ition to obse rve th is victim ’s tes timo ny,
man nerism s, and c redibility.
         6 Dr. D urha m w as th e exa min ing do ctor o n Ch ild Se rvice s’ ref erra l.

                                                         -5-
       “Sexual penetration” means sexual intercourse, cunnilingus, fellatio,
       anal intercourse, or any other intrusion, however slight, of any part of
       a person’s body or of any object into the genital or anal openings of
       the victim’s, the defendant’s, or any other person’s body, but emission
       of semen is not required.
Tenn. Code Ann. § 39-13-501(7). This inference is supported by the victim’s

testimony, was adopted by the jury, and now must be affirmed. The defendant has

simply not carried his burden on this issue.


                                    Sentencing


       The defendant next challenges the length of his sentence. He argues that

the trial court failed to properly consider enhancement factors and erred in imposing
the maximum sentence within the range.



       This Court’s review of the sentence imposed by the trial court is de novo with
a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption

is conditioned upon an affirmative showing in the record that the trial judge

considered the sentencing principles and all relevant facts and circumstances. See

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If the trial court fails to comply

with the statutory directives, no presumption of correctness exists, and our review
is de novo. See State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997).



       The burden is upon the appealing party to show that the sentence is
improper. Tenn. Code Ann. § 40-35-401(d) sentencing comm’n. comments. In

conducting our review, we are required, pursuant to Tennessee Code Annotated §

40-35-210, to consider the following factors in sentencing:
       (1) [t]he evidence, if any, received at the trial and the sentencing
           hearing;
       (2) [t]he presentence report;
       (3) [t]he principles of sentencing and arguments as to sentencing
           alternatives;
       (4) [t]he nature and characteristics of the criminal conduct involved;
       (5) [e]vidence and information offered by the parties on the
           enhancement and mitigating factors in §§ 40-35-113 and 40-35-
           114; and
       (6) [a]ny statement the defendant wishes to make in the defendant’s
           own behalf about sentencing.


       If no mitigating or enhancement factors for sentencing are present,

Tennessee Code Annotated § 40-35-210(c) provides that the presumptive sentence

shall be the minimum sentence within the applicable range. See State v. Lavender,

                                         -6-
967 S.W.2d 803, 806 (Tenn. 1998); State v. Fletcher, 805 S.W.2d 785, 788 (Tenn.

Crim. App. 1991). However, if such factors do exist, a trial court should start at the

minimum sentence, enhance the minimum sentence within the range for
enhancement factors, and then reduce the sentence within the range for the

mitigating factors. Tenn. Code Ann. § 40-35-210(e). No particular weight for each

factor is prescribed by the statute, as the weight given to each factor is left to the
discretion of the trial court if that court complies with the purposes and principles of

the sentencing act and if its findings are supported by the record. See State v.

Moss, 727 S.W.2d 229, 238 (Tenn. 1986); State v. Leggs, 955 S.W.2d 845, 848
(Tenn. Crim. App. 1997); State v. Santiago, 914 S.W.2d 116, 125 (Tenn. Crim. App.

1995); see Tenn. Code Ann. § 40-35-210 sentencing comm’n. comments.

Nevertheless, should only enhancement factors be present, a trial court may set the
sentence above the minimum within the range. See Tenn. Code Ann. § 40-35-

210(d); see Lavender, 967 S.W.2d at 806; Manning v. State, 883 S.W.2d 635, 638

(Tenn. Crim. App. 1994).



       If our review reflects that the trial court followed the statutory sentencing

procedure, imposed a lawful sentence after giving due consideration and proper

weight to the factors and principles set out under sentencing law, and if 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. See

Fletcher, 805 S.W.2d at 789.



       In this case, we find that the trial court’s sentence is not entitled to the

presumption of correctness; the trial court erred because “particular vulnerability,”

regarding the victim, was an element of the offense. Nothing indicated that any
particular vulnerability became relevant in the commission of the offense. See State

v. Adams, 864 S.W.2d 31, 35 (Tenn. 1993). Our review is therefore de novo.



       We begin with 20 years, the midpoint within the applicable range. See Tenn.
Code Ann. §40-35-112, -210(c). Regarding enhancing factors, we find that the

record supports the application of factor (1): criminal history beyond that necessary

to establish the range. To support application of this factor, a defendant’s criminal

history need not be extensive; accordingly, this defendant’s prior convictions for a

                                          -7-
Class D felony and a Class E felony are sufficient. See Tenn. Code Ann. § 40-35-

114(1).



       Next, we find that the record supports the application of factor (15): abuse

of trust. In this case, the defendant, a family friend, used this friendship to obtain

permission to take the victim with him. By virtue of his pre-existing relationship with
the family and familiarity to the victim, he was so trusted.7 Accordingly, we find that
the defendant abused his position of private trust in commission of this offense.

See State v. McKnight, 900 S.W.2d 36, 55 (Tenn. Crim. App. 1994).



       As for mitigating factors, the trial court found none. Having reviewed the

record, we agree. Weighing the enhancement factors in accordance with the
appropriate sentencing principles, we accord some weight to factor (1) and great

weight to factor (15). Accordingly, and after reviewing similar cases and their

sentences, we affirm the sentence of 25 years.


                                          CONCLUSION


        Accordingly, we AFFIRM the judgment and sentence from the trial court.




                                               ________________________________
                                               JOHN EVERETT W ILLIAMS, Judge

CONCUR:




______________________________
GARY R. WADE, Presiding Judge




          7 We note also that the victim even had a nickname for Padilla: “Boody Boy.” He had
been trusted with her care before on similar errands and apparently had established some degree
of frie nds hip an d aff ectio n with the vic tim in addit ion to trust w ith the fam ily.

                                              -8-
______________________________
NORMA McGEE OGLE, Judge




                                 -9-
