                                                                                                             12/18/2019
            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT JACKSON
                             Assigned on Briefs November 5, 2019

                     STATE OF TENNESSEE v. ROBERT BEHAM

                     Appeal from the Criminal Court for Shelby County
                     No. 16-00648       Carolyn Wade Blackett, Judge
                         ___________________________________

                                No. W2018-01974-CCA-R3-CD
                            ___________________________________

A Shelby County jury convicted the Defendant, Robert Beham, as charged of rape of a
child and aggravated sexual battery, and the trial court imposed an effective sentence of
forty years at one hundred percent. On appeal, the Defendant argues (1) the trial court
erred in denying his motion for judgment of acquittal and the evidence is insufficient to
sustain his convictions, and (2) the trial court abused its discretion in applying the
enhancement factor regarding his history of criminal behavior. We affirm the judgments
of the trial court.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS, P.J., and ROBERT L. HOLLOWAY, JR., J., joined.

Rosalind E. Brown (on appeal) and Sam Perkins and James Jones (at trial), Memphis,
Tennessee, for the Defendant-Appellant, Robert Beham.

Herbert H. Slatery III, Attorney General and Reporter; Samantha L. Simpson, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Stacy McEndree and
Gavin Smith, Assistant District Attorneys General, for the Appellee, State of Tennessee.

                                                OPINION

        Trial. The proof established that G.B. was the mother of the victim, A.W.,1 and
the sister of the Defendant. At the time of the offenses against the victim, G.B. had been
dating DeAngelo Westley, who was the father of their two young boys but was not
A.W.’s father. In September 2015, G.B., Westley, and the children were living with


        1
         It is the policy of this court to identify minor victims by their initials only. We will also identify
the minor victims’ family members by their initials in order to protect the identity of these victims.
G.B.’s mother, S.B., and the Defendant in an apartment. At the time, A.W. was five
years old.

        G.B. said that when a person entered S.B.’s apartment, the dining room was on the
left, a staircase to the second floor of the unit was directly in front of the door, and the
living room was to the right. A person had to walk through the dining room to reach the
kitchen, and the kitchen also opened onto the living room. The living room had a small
couch with an ottoman, which was usually placed in front of the couch.

       The morning of September 7, 2018, G.B. awoke and realized that they had no food
for breakfast, so she and Westley left the apartment to purchase milk and cereal at a
nearby store. When they left, the three children and the Defendant were playing video
games in the living room, and S.B. was asleep in her bedroom upstairs. It took G.B. and
Westley approximately five minutes to buy food at the store and return home. They
entered the apartment and walked through the dining room to the kitchen so they could
prepare breakfast for the family but did not see the children in the living room. G.B.
called her children to eat breakfast, and the two youngest children walked into the kitchen
from the dining room, but A.W. never came to eat. G.B. began trying to find A.W. She
looked in the living room and saw the Defendant “getting up off the floor.” She noticed
that the Defendant had a surprised look on his face and that his pants were “kind of
twisted” like he had just pulled them up. Then she noticed A.W., who did not have her
pants on, getting up from the floor with a shocked look on her face “like she was in
trouble or something.” G.B. observed the Defendant hurrying to get A.W. pants on. She
also noticed that the ottoman had been moved from its normal position so that it blocked
the view into the living room from the front door.

       G.B. asked A.W. why she had not come into the kitchen to eat breakfast and asked
the Defendant why A.W.’s pants had been on the floor. The Defendant replied that A.W.
had urinated on herself and that he had helped her change her clothes. G.B. took A.W.’s
hand and saw that her daughter’s underwear was at her ankle even though her pants had
been pulled up. G.B. asked the Defendant where A.W.’s wet clothing was, and the
Defendant did not answer. G.B. later discovered that A.W.’s underwear had a “streak of
discharge” on it, but the underwear did not feel damp as if A.W. had urinated on it, and it
did not smell of urine. G.B. said there were no other signs that A.W. had urinated on
herself. She noted that A.W. was fully “potty-trained” and did not have a history of
urinary problems.

       G.B. said she fixed A.W.’s underwear and pants, put A.W. on her hip, and walked
out the front door of the apartment with her. When they got outside, G.B. asked A.W.
what happened, and A.W. got a “scared look on her face” and “put her head down”
before replying that the Defendant had “touched” her. G.B. said that after A.W. told her
                                           -2-
what happened, the Defendant, who was standing on the porch, kept yelling, “What did
she say?”

        G.B. took A.W. with her inside the apartment and told Westley that the Defendant
had touched A.W.. She noticed that the Defendant followed them back inside the
apartment, where he began “cleaning up and doing things.” G.B. went upstairs to awaken
S.B., so S.B. could ask the Defendant what he had done to A.W.. She explained to S.B.
what A.W. had said to her and informed S.B. that she was calling the police. S.B.
undressed A.W. in order to examine her, and G.B. and S.B. observed that A.W.’s genitals
were wet and that there was a discharge on A.W.’s underwear. G.B. dressed A.W.
without her underwear, which they left on the floor of S.B.’s bedroom, and S.B. went
downstairs to talk to the Defendant about what had happened while G.B. called the
police.

       G.B. said that when S.B. asked the Defendant if he had touched A.W., the
Defendant replied, “Man,” and “got real[ly] sad” but never denied touching A.W. S.B.
seemed “really stunned” and “shocked” and asked the Defendant why he would do that to
his niece, and the Defendant got angry and ran up the stairs in order to attack G.B.. G.B.
picked up a remote and threw it at the Defendant, hitting him on the top of his nose,
which caused him to bleed, and Westley blocked the Defendant from coming up the stairs
for G.B.. As the Defendant continued to try to attack G.B., Westley fought him, and they
ended up breaking a window as the police arrived. Then the Defendant “picked up a 2 x
4” board, and the police told him they would shoot him if he did not drop it. The
Defendant eventually put the board down, and the police arrested him. G.B. told the
police what had happened to A.W., and the police questioned everyone in the home,
although the Defendant did not say much to the officers.

       G.B. briefly talked to the police before riding with A.W. in an ambulance to the
hospital. Then G.B. and her family took A.W. to the Rape Crisis Center, where the staff
examined A.W. and asked her questions about the incident. G.B. said she was not
present during A.W.’s examination or while the staff of the Rape Crisis Center asked
A.W. questions. A day or two later, G.B. took A.W. to the Child Advocacy Center,
where a forensic interviewer talked to A.W. about what happened. G.B. was not present
during A.W.’s forensic interview. She said that she did not talk to A.W. about the details
of what the Defendant had done to her before taking her to the Rape Crisis Center or the
Child Advocacy Center. G.B. said that following this incident, A.W. had problems
“learning and being around people,” so she had her go to therapy for a while.

      A.W., who was seven years old at the time of the Defendant’s trial, testified that
the Defendant was her uncle. A.W. stated that she had told the truth about what the
Defendant did to her in the forensic interview at the Child Advocacy Center. She also
                                          -3-
said she understood the difference between a good touch and a bad touch. A.W.
reviewed an illustration of a female figure and identified the vagina as “TT” and the
buttocks as “butt.” She also reviewed an illustration of a male figure and identified the
penis as “TT.”

       A.W. said that, during the incident, the Defendant took off her pants and
underwear. The Defendant touched her “TT” with his hand and then touched her “TT”
with his “TT” while his pants and underwear were pulled down. She said that the
Defendant’s “TT” looked hard when he touched her with it. She also stated that the
Defendant put his “TT” inside her “TT” because it hurt. A.W. said that her mother, G.B.,
came into the room while the Defendant was touching her behind the couch and that the
Defendant pulled his pants up and “lied” to G.B. about what he had been doing. She said
that after her mother came into the room, she took her outside and asked her what
happened, and A.W. told her that the Defendant “was touching on [her].” After this
incident, A.W. went to the hospital and the Rape Crisis Center. She also went to the
Child Advocacy Center two days later and told the staff there the truth about what the
Defendant had done to her. A.W. said the Defendant also touched her “butt” with his
“TT,” but she could not remember whether that incident occurred on the same day as the
other offenses.

        DeAngelo Westley testified that in September 2015, he lived in Memphis with
G.B., their two sons, A.W., S.B., and the Defendant. Westley said that on the morning of
September 7, 2015, he and G.B. left the apartment to buy food for breakfast. When they
left, the Defendant and the children were in the living room, and S.B. was asleep upstairs.
When Westley and G.B. returned to the apartment ten minutes later, they entered through
the front door, which swung into the apartment partially blocking the view to the living
room, and they walked through the dining room into the kitchen. A few minutes later,
they called their children for breakfast, and although their sons came into the kitchen,
A.W. did not. He said G.B. went to look for A.W., and then he saw G.B. take A.W. out
the front door of the apartment and walk around by the pool. At the time, the Defendant
repeatedly asked, “What did she say? What did she say?” When G.B. and A.W. returned
to the apartment, G.B. told him that the Defendant had “touched” A.W.. Westley said he
was “shocked” and helped G.B. take A.W. upstairs to talk to S.B. about what happened.
Westley said that he, G.B., and S.B. went downstairs. S.B. asked the Defendant if he had
touched A.W., and the Defendant replied, “Man, man.” He also noticed that the
Defendant began “cleaning up” and “fidgeting[,]” even though the Defendant normally
played video games. Then G.B. told the Defendant, “I know you did it because you [are]
acting weird,” and the Defendant got mad at her. Westley told G.B. to go upstairs, and
the Defendant tried to run after G.B. so he could fight her, and he and the Defendant
“start[ed] scuffling.” The Defendant left, and Westley went upstairs, and when the
Defendant returned and tried to come upstairs a few minutes later, G.B. threw a remote at
                                           -4-
the Defendant, which hit him in the nose and made him bleed. Then the Defendant got a
“2 x 4” board and acted like he was going to hit G.B. with it just as the police arrived at
the apartment. He said the police had to draw their guns before the Defendant finally put
the board down and was placed in handcuffs. Westley said that since this incident, A.W.
has acted differently, and he has tried to keep A.W. busy with activities so she wouldn’t
“have to think about” what happened.

       Timmy Mitchell, an officer with the Organized Crime Unit of the Memphis Police
Department, testified that on September 7, 2015, he responded to a domestic violence call
at S.B.’s apartment. When he arrived, he noticed that the front door to S.B.’s apartment
was open and that the Defendant was holding a “2 x 4” board. Another officer on the
scene told the Defendant to put the board down, so he would not have to hurt him, and
the Defendant eventually put the board down and was detained. Although the Defendant
had blood on his face, he refused to go to the hospital. Officer Mitchell entered the
apartment and saw that G.B. was “very upset” and “angry.” G.B. told Officer Mitchell
and the other officers that she had “walked in” and “[the Defendant] had [A.W.’s] legs
open and was trying to penetrate her” or “had penetrated her.” Upon hearing this, Officer
Mitchell detained everyone in the apartment. He spoke to Westley, who stated that he
had held the Defendant down until the police arrived. Officer Mitchell noted that S.B.,
the Defendant’s mother, “was more concerned about the [D]efendant than she was
[A.W.]” and was “more worried about us hurting [the Defendant].” He said no one at the
scene told him that the Defendant had confessed to touching A.W. inappropriately.

        Jason Parish, an officer with the Crime Scene Investigation Unit of the Memphis
Police Department, testified that he responded to S.B.’s apartment on September 7, 2015
to document, collect, and preserve evidence. In addition to taking numerous photographs
of the scene, Officer Parish collected a “2 x 4” board and A.W.’s underwear.

       James Byars, a Sergeant with the Child Abuse Sex Crimes Unit of the Memphis
Police Department, testified that he responded to the Rape Crisis Center, where he spoke
with G.B. and A.W. before A.W. had her forensic examination. Sergeant Byars stated
that he and Sergeant Lee spoke to A.W. outside the presence of her mother. When
Sergeant Byars asked A.W. what happened to her, A.W. replied that the Defendant “had
put his front TT in her TT and booty and it hurt.” A.W. also told him that the Defendant
had pulled her clothes down when these offenses occurred. Sergeant Byars said that he
was the first officer to talk to A.W. about what happened. He said that he was unable to
take a statement from the suspect and that he relied on the statement G.B. had given to
the Department of Children’s Services about what she observed.

      Nina Sublette, a licensed family nurse practitioner and an expert in the fields of
sexual assault nursing examination and advanced practice nursing, testified that she
                                           -5-
examined A.W. on September 7, 2015 at the Rape Crisis Center. Sublette said that
because A.W. came to the center within four hours of the offenses, she was able to collect
evidence for the rape kit during the examination. She also talked to A.W. outside the
presence of her mother. When Sublette asked about what happened, A.W. said that the
Defendant had “touched [her] TT with his TT.” She said A.W. was “cooperative” and
“quiet” when they talked. Sublette then conducted a forensic examination of A.W. and
collected buccal swabs from A.W. as well as swabs from A.W.’s vulva and anus for the
rape kit. She explained that for children who are premenstrual, she does not take a swab
from the vaginal canal because the lack of estrogen in the body can make doing so
painful. Sublette stated that A.W. was not wearing underwear when she arrived as the
center, but she collected A.W.’s leggings. Sublette observed no physical injuries to
A.W.; however, she said that “[d]epending on the type of assault and the type of object
used, you may, or may not see injury.” She added that in the “majority” of child victim
cases, there is no injury, even if penile penetration has occurred, because of how the body
naturally responds. Sublette said that based on her examination of A.W., she “could not
say whether she was penetrated, or not.” She noted that A.W. did not indicate that
anything was hurting her at the time of the examination. Sublette later collected samples
from the Defendant for the suspect kit.

       Teresa Onry, a forensic interviewer for the Child Advocacy Center, testified that
she conducted the forensic interview of A.W. on September 11, 2015. During this
interview, A.W. said she lived with her mother and grandmother and that her uncle, the
Defendant, was in jail because he was “so bad.” She said that the Defendant took her
pants and underwear off and “tried to get on [her]” and actually did get on her at her
grandmother’s home. During this interview, Onry showed A.W. illustrations of a female
and male body, and A.W. identified the vagina as “TT,” the penis as “TT”, and the
buttocks as “butt” or “booty[.]” A.W. told Onry that the Defendant’s “TT” touched the
inside of her “TT” and that it hurt. A.W. also told her that the Defendant’s “TT” touched
the inside of her “butt” and it “hurt.” She said she was lying on the red couch downstairs
in her grandmother’s apartment when the Defendant touched her. A.W. asserted that the
Defendant put his “TT” in her “TT” “a lot” and that the Defendant was the only person to
put his “TT” in her “TT.”

       Christie Smith, a Special Agent Forensic Scientist with the Tennessee Bureau of
Investigation and an expert in the fields of forensic biology and deoxyriboneculeic acid
(DNA) analysis, testified that she tested the rape kit containing the buccal, vulvar and
anal swabs from A.W., and A.W.’s pants and underwear, as well as the suspect kit
containing buccal and penile swabs from the Defendant. Special Agent Smith said that
although she did not find any semen on A.W.’s buccal swab, anal swab, or the pants,
A.W.’s vulvar swab tested positive for semen, and the pink underwear tested positive for
sperm cells. She explained that on the vulvar swab, the only DNA profile she was able to
                                           -6-
obtain was from A.W. On the underwear, the Defendant was excluded from the sperm
fraction in the DNA profile; however, the non-sperm fraction in the DNA profile was
consistent with a mixture of two people, but because of the limited DNA profile obtained,
her interpretation of this profile was inconclusive. When she conducted DNA testing on
the penile swabs, the result was a mixture of DNA from at least two people but due to the
limited profile, her interpretation of this profile was also inconclusive.

       Special Agent Smith said she was asked to do further YSTR DNA testing on the
vulvar swab that targets only male DNA. After testing the sperm fraction from the vulvar
swab, she was only able to obtain a partial DNA profile that was inconclusive for
comparison purposes, which meant that she was unable to include or exclude the
Defendant. However, when she conducted YSTR DNA testing on the non-sperm fraction
of the vulvar swab, she was able to develop a single source YSTR DNA profile that
matched the Defendant’s known DNA from his buccal swab.

       Special Agent Smith said that while she was able to detect semen on the vulvar
swab, she was unable to tell who caused that semen to be there because the only DNA
profile she was able to obtain was consistent with the profile of A.W., the victim. In
addition, she said that although the underwear contained a limited amount of sperm cells,
the Defendant was excluded from the sperm fraction and the DNA profile for the non-
sperm fraction was so limited that she was unable to conclusively identify to whom it
belonged.

        Special Agent Smith said that occasionally there is DNA in the non-sperm fraction
that is from the sperm fraction, and vice versa. She reiterated that on the non- sperm
fraction from the vulvar swabs, she was able to obtain a full YSTR DNA profile that
matched the Defendant’s profile. She acknowledged that she was unable to tell the jury
when the Defendant’s DNA was left or how it was transferred or deposited on the vulvar
sample.

       S.B., who testified for the defense, stated that the Defendant was her son, G.B.
was her daughter, and A.W. was her granddaughter. On the morning of September 7,
2015, S.B. awoke when she heard G.B. screaming that the Defendant had done
“something” to A.W. S.B. walked downstairs and asked the Defendant if he had done
“something” to A.W, and the Defendant replied, “No.” At the time, neither the
Defendant’s nor A.W.’s clothes were in disarray. Then G.B. began fighting with the
Defendant inside the apartment, and G.B. threw something at the Defendant, which
caused him to bleed. S.B. said Westley did not participate in the fight and only held G.B.
back from the Defendant. She also said that A.W.’s underwear was not on her bedroom
floor when she went downstairs to talk to the Defendant and that she first noticed the
underwear when she came back upstairs after talking to the police.
                                          -7-
       S.B. acknowledged that she never saw the offenses involved in this case because
she was in her bedroom upstairs at the time they occurred. She denied telling G.B. that
this was a family problem that should stay in the family. She also denied telling G.B. that
she should not call the police. S.B. admitted that she had a prior conviction for theft of
property.

       On rebuttal, G.B. testified that approximately one month prior to trial, S.B. told
her that she should not have called the police because the Defendant “just need[ed] help.”
G.B. said that two days after the Defendant’s arrest, S.B. made her and her family leave
her home. She said that in the last two years while this case was pending, S.B. never
asked her how A.W. was doing.

       At the conclusion of trial, the jury convicted the Defendant as charged. Following
a sentencing hearing, the trial court imposed concurrent sentences of forty years for the
rape of a child conviction and ten years for the aggravated sexual battery conviction, for
an effective sentence of forty years in confinement.

       Thereafter, the Defendant filed a timely motion for new trial, which was denied on
April 16, 2018. On October 29, 2018, the Defendant filed a motion seeking to late-file
his notice of appeal, and this court found that it was appropriate in the interest of justice
to waive the timely filing of the Defendant’s notice of appeal. The Defendant filed his
notice of appeal on December 10, 2018.

                                        ANALYSIS

       I. Sufficiency of the Evidence. The Defendant contends that the trial court erred
in denying his motion for judgment of acquittal and that the evidence is insufficient to
sustain his convictions for rape of a child and aggravated sexual battery. The State
responds that the evidence, when viewed in the light most favorable to the prosecution, is
more than sufficient for a rational juror to find the Defendant guilty as charged. After
evaluating the evidence presented at trial, we conclude that the trial court did not err in
denying the motion for judgment of acquittal and that the evidence is sufficient to support
both of the Defendant’s convictions.

       When considering a motion for judgment of acquittal, whether at the close of the
State’s proof or after the conclusion of all proof at trial, the trial court is only concerned
with the legal sufficiency of the evidence and not with the weight of the evidence. State
v. Collier, 411 S.W.3d 886, 892 (Tenn. 2013) (citing State v. Hall, 656 S.W.2d 60, 61
(Tenn. Crim. App. 1983); State v. Blanton, 926 S.W.2d 953, 957 (Tenn. Crim. App.
1996); State v. Adams, 916 S.W.2d 471, 473 (Tenn. Crim. App. 1995)). If a defendant
chooses to present proof after the trial court denies the motion for judgment of acquittal
                                            -8-
made at the close of the State’s case-in-chief, then he “waive[s] any claim of error for
failure to grant the motion for judgment of acquittal at the conclusion of the proof offered
by the State.” Id. at 893 (emphasis omitted). However, if the defendant renews his
motion for judgment of acquittal at the conclusion of all the evidence, as the Defendant
did in this case, he does not “waive his right to appeal the denial of the motion made at
the close of all of the proof or to challenge the sufficiency of the convicting evidence.”
Id. (emphasis omitted). When a motion for judgment of acquittal is made at the close of
all the proof, the trial court must favor the party opposing the motion with the strongest
legitimate view of the evidence, including all reasonable inferences from the evidence,
and cast aside any countervailing evidence. Id. (citing State v. James, 315 S.W.3d 440,
455 (Tenn. 2010)). We recognize that “[t]he standard by which the trial court determines
a motion for judgment of acquittal is, in essence, the same standard that applies on appeal
in determining the sufficiency of the evidence after a conviction[.]” Id. (citing State v.
Little, 402 S.W.3d 202, 211 (Tenn. 2013)); see State v. Thompson, 88 S.W.3d 611, 614-
15 (Tenn. Crim. App. 2000).

       Accordingly, we must consider “whether ‘any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.’” State v. Parker,
350 S.W.3d 883, 903 (Tenn. 2011) (quoting Jackson v. Virginia, 443 U.S. 307, 319
(1979)); see Tenn. R. App. P. 13(e). The standard of review for sufficiency of the
evidence “‘is the same whether the conviction is based upon direct or circumstantial
evidence.’” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting State v.
Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). The jury as the trier of fact must evaluate
the credibility of the witnesses, determine the weight given to witnesses’ testimony, and
reconcile all conflicts in the evidence. State v. Campbell, 245 S.W.3d 331, 335 (Tenn.
2008) (citing Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978)). Moreover,
the jury determines the weight to be given to circumstantial evidence, and the inferences
to be drawn from this evidence, and the extent to which the circumstances are consistent
with guilt and inconsistent with innocence, are questions primarily for the jury. Dorantes,
331 S.W.3d at 379 (citing State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006)). When
considering the sufficiency of the evidence, this court “neither re-weighs the evidence nor
substitutes its inferences for those drawn by the jury.” State v. Wagner, 382 S.W.3d 289,
297 (Tenn. 2012) (citing State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997)). “Because a
verdict of guilt removes the presumption of innocence and raises a presumption of guilt,
the criminal defendant bears the burden on appeal of showing that the evidence was
legally insufficient to sustain a guilty verdict.” Hanson, 279 S.W.3d at 275 (citing State
v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992)).

       A. Rape of a Child. The Defendant contends that there are several reasons why
the evidence is insufficient to support his rape of a child conviction. He argues that
“[t]here was no evidence on the alleged scene that would support that a rape occurred.”
                                           -9-
He asserts that there were no witnesses who saw him assaulting A.W. and that he had his
pants on when he was first observed by G.B. He also claims that neither G.B. nor
Westley “noticed anything unusual” when they returned home from the store and that
S.B. “was upstairs and heard nothing.” Moreover, he maintains that no one mentioned
prior to trial that this incident allegedly occurred beside the couch and that no evidence
was ever collected from the couch or the area near the couch to show that he sexually
abused A.W. The Defendant maintains that there was no proof showing that A.W. was in
distress from being penetrated by a twenty-four-year-old male. He references Officer
Byars testimony that A.W. was not “crying or upset” and appeared “normal” and Nina
Sublette’s testimony that she found no injuries to A.W. and that A.W. told her there was
nothing hurting her at the time of the examination. The Defendant additionally claims
that there was no physical evidence showing that A.W. was penetrated because the
forensic examination performed by Sublette did not include collecting DNA from inside
A.W.’s vagina.

        The Defendant also contends that the first DNA tests performed by Special Agent
Smith were inconclusive and that after conducting YSTR DNA testing, Special Agent
Smith found a mixture of his DNA and another male’s DNA on the non-sperm fraction,
which could be explained by the fact that A.W. “lived in the house with two males[,]”
who all “shared household furniture and common bathrooms.” He further asserts that he
never confessed to having sexual contact with A.W., despite G.B.’s insistence that he
admitted to these allegations. The Defendant contends that neither he nor G.B., S.B., or
Westley gave a formal statement to the police regarding the allegations. The Defendant
argues that A.W.’s testimony at trial “raises grave concerns about her credibility and
ability to factually recall things.” He specifically claims that at trial, A.W. could not spell
her name, could not recall the day that the alleged incident occurred, did not know how
she got to court, and admitted that her mother told her what to say. The Defendant argues
that G.B. provided inconsistent and unreliable statements regarding the alleged incident.
In particular, he states that although Officer Mitchell testified that G.B. told him that the
Defendant had A.W.’s legs open and was trying to penetrate her, G.B.’s testified that she
never made these statements to Officer Mitchell and that she found A.W., with her
underwear down by her ankle and her pants up, behind the couch with the Defendant.

       Rape of a child, a Class A felony, is defined as “the unlawful sexual penetration of
a victim by the defendant or the defendant by a victim, if the victim is more than three (3)
years of age but less than thirteen (13) years of age.” Tenn. Code Ann. § 39-13-522(a).
Sexual penetration includes “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[.]” Id. § 39-13-501(7). At trial, for the rape of a

                                            - 10 -
child count, the State elected to proceed with the Defendant’s act of penetrating A.W.’s
vagina with his penis.

       The Defendant contends that the evidence is insufficient to sustain his convictions
because there was no proof at the scene to show that a rape occurred, because none of the
adults at the scene gave a formal statement to police, and because he never confessed to
sexually abusing A.W. The evidence presented at trial showed that when G.B. realized
that A.W., who was five years old, had not come into the kitchen to eat breakfast, she
walked into the living room to look for her and saw the Defendant, whose pants were
“twisted,” get up from the floor with a surprised look on his face. G.B. also saw A.W.,
who did not have her pants on and who looked shocked “like she was in trouble or
something,” get up from the floor. She then observed the Defendant hurrying to get
A.W.’s pants on. As G.B. assisted A.W. in pulling up her pants, she saw that A.W.’s
underwear was at her ankle. Although the Defendant claimed that he was helping change
A.W.’s clothes because she had urinated on herself, he could not explain where her wet
clothes were, and there were no other signs that A.W. had urinated on herself.

        G.B. said she later discovered that A.W.’s underwear had “a streak of discharge”
on it, but the underwear did not feel damp like A.W. had urinated on it, and it did not
smell like urine. When G.B. asked A.W. what happened, A.W. immediately disclosed
that the Defendant had touched her. During this time, the Defendant repeatedly asked
what A.W. was telling G.B.[256]. When G.B. and A.W. went back inside the home, G.B.
told Westley and S.B. that the Defendant had touched A.W., and when S.B. asked the
Defendant if he had done this, the Defendant replied, “Man[,] and “got real[ly] sad” but
never denied touching A.W. When S.B. asked the Defendant why he would do this to his
niece, the Defendant became angry and tried to attack G.B..

        A.W., who referred to the body parts of vagina and penis as “TT,” testified that the
Defendant took off her pants and underwear, touched her “TT” with his hand, and
touched her “TT” with his “TT” while his pants and underwear were pulled down. She
said the Defendant’s “TT” looked hard when he touched her with it and that the
Defendant put his “TT” inside of her “TT” because it hurt. A.W. also said that the
Defendant touched her “butt” with his “TT.” Sergeant Byars testified that A.W. told him
that the Defendant “put his front TT in her TT and booty and it hurt.” Nina Sublette
testified that during the forensic examination at the Rape Crisis Center, A.W. said that the
Defendant had “touched [her] TT with his TT.” Teresa Onry testified that A.W. told her
that the Defendant’s “TT” touched the inside of her “TT” and that it hurt and that the
Defendant’s “TT” touched the inside of her “butt[,]” which also hurt.” Special Agent
Smith testified that when she conducted YSTR DNA testing on the non-sperm fraction of
the vulvar swab, she was able to develop a single source YSTR DNA profile that
matched the Defendant’s known DNA profile from his buccal swab.
                                           - 11 -
       While the Defendant asserts that there was no physical evidence showing
penetration because the forensic examination did not collect DNA from the inside of
A.W.’s vagina, Nina Sublette explained that she never obtains a swab from the vaginal
canal of children because it can be painful. As to this issue, we note that the State did
present physical evidence supporting the rape of a child charge—namely the single
source YSTR DNA profile from the non-sperm fraction found on the vulvar swab, which
matched the Defendant’s known DNA profile. Accordingly, this DNA evidence, when
combined with the other proof presented at trial, was sufficient for a rational jury to
conclude that the Defendant vaginally raped A.W.

       The Defendant also challenges the credibility G.B’s and A.W.’s testimony. G.B.’s
testimony included innumerable details about what she observed when she first
encountered the Defendant with A.W. on September 7, 2015. In addition, A.W. provided
detailed testimony that the Defendant put his “TT” inside her “TT” and that the
Defendant touched her “butt” with his “TT.” She provided consistent statements
regarding this abuse to G.B., Sergeant Byars, Nina Sublette at the Rape Crisis Center, and
Teresa Onry at the Child Advocacy Center. We cannot overemphasize that it is the jury’s
prerogative to evaluate the credibility of all witnesses, including the victim. See
Campbell, 245 S.W.3d at 335. The jury, by its verdict, accredited the testimony provided
by G.B. and A.W., and we will not disturb the jury’s determination regarding the
credibility of witnesses and the weight given to this evidence.

        Lastly, the Defendant asserts that the evidence is insufficient to sustain his rape of
a child conviction because there was no proof showing that A.W., who was five years old
at the time of these offenses, was in distress from being penetrated. Nina Sublette
testified that although she observed no physical injuries to A.W., she said that
“[d]epending on the type of assault and the type of object used, you may, or may not see
injury.” Sublette also stated that in the “majority” of child victim cases, there will be no
injury, even if penile penetration has occurred, because of how the body natural responds.
In light of the overwhelming evidence of his guilt, the Defendant has failed to show that
the evidence is insufficient to sustain his conviction on this basis. Because a rational jury
could have found the Defendant guilty of rape of a child beyond a reasonable doubt based
on the evidence presented at trial, the Defendant is not entitled to relief on this issue.

       B. Aggravated Sexual Battery. The Defendant also contends that the evidence
is insufficient to sustain his conviction for aggravated sexual battery. However, instead
of providing specific argument as to why the evidence is insufficient as to this conviction,
the Defendant merely asserts that “the facts argued for the conviction of rape of a child
also apply to the conviction for aggravated sexual battery.” In response, the State asserts
that the Defendant has waived this issue for failing to support it with argument. See
Tenn. Ct. Crim. App. R. 10(b) (“Issues which are not supported by argument, citation to
                                            - 12 -
authorities, or appropriate references to the record will be treated as waived in this
court.”). While we agree that the Defendant risked waiving this issue by failing to clearly
support it with argument, we will nevertheless address this issue on its merits.

       Aggravated sexual battery, a Class B felony, is defined as “unlawful sexual
contact with a victim by the defendant or the defendant by a victim [where] . . . [t]he
victim is less than thirteen (13) years of age.” Tenn. Code Ann. § 39-13-504(a)(4).
Sexual contact includes “the intentional touching 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 “semen, vaginal fluid, the primary genital area, groin, inner thigh,
buttock or breast of a human being.” Id. § 39-13-501(2). At trial, for the aggravated
sexual battery count, the State elected to proceed with the Defendant’s act of putting his
penis in or on A.W.’s butt or anus.

      A.W. testified that the Defendant touched her “butt” with his “TT.” Sergeant
Byars testified that A.W. told him that the Defendant “put his front TT in her TT and
booty and it hurt.” In addition, Teresa Onry testified that A.W. said the Defendant’s TT
touched the inside of her “butt” and it “hurt.” The evidence presented at trial showed that
the Defendant removed his and A.W.’s clothes behind the couch. Upon being
discovered, the Defendant repeatedly asked what A.W. had told G.B. about what had
happened and later tried to attack G.B. after she disclosed what A.W. had told her about
the Defendant’s abuse.

        Given this evidence, a rational jury could have found that the Defendant
intentionally touched A.W.’s buttock, an intimate part, with his penis and that this
touching was for the purpose of the Defendant’s sexual arousal or gratification. We
reiterate that all questions regarding a victim’s credibility and the weight to be given to
this testimony are determined by the jury, not this court. Here, the jury clearly accredited
the testimony of A.W. and the rest of the State’s witnesses. Accordingly, we conclude
that the evidence is sufficient to sustain the Defendant’s conviction for aggravated sexual
battery.

       II. Sentence. The Defendant also argues that the trial court erred in applying
enhancement factor (1), that he had a previous history of criminal behavior, to both of his
convictions based on G.B.’s testimony at the sentencing hearing that he anally raped her
when she was a child. See id. § 40-35-114(1). The Defendant claims that the trial court
should not have applied this enhancement factor because he had “no convictions” to
substantiate G.B.’s allegation, because there were “no official documents” verifying
G.B.’s allegations that he raped her, and because the affidavit of complaint referenced by
the State contained no determination that he committed the alleged acts. The Defendant
                                           - 13 -
insists his “history supported no more than a 25[-]year sentence for rape of a child.” The
State responds that the trial court did not err in applying this enhancement factor, but that
even if it did, the Defendant’s sentences should be affirmed because the application of
enhancement factors is merely advisory. We conclude that the trial court did not abuse
its discretion in applying this enhancement factor or in sentencing the Defendant to an
effective forty-year sentence.

       At the Defendant’s sentencing hearing, the State entered the presentence report
and A.W.’s and G.B.’s victim impact statements as exhibits. G.B. also read her victim
impact statement into the record. She stated that following these offenses, A.W. was
shyer than she had been before and often told strangers that the Defendant had raped her
as a way for her to process what happened. A.W. had also fallen behind in school,
although her teachers and counselors had been helping her. G.B. revealed that when she
was five years old, the Defendant had done “the same thing to [her,]” but “there was
never any justice[.]” She said she hoped that A.W. would get the justice that she needed
and deserved. G.B. also said that the Defendant had “ruin[ed] her life” and had “tried to
ruin [her] baby’s life[,]” but had not “succeed[ed].”

       The presentence report in this case notes that the Defendant admitted “he was
brought into the Department of Children Services (DCS) at the age of 12 because his
biological sister [G.B.] (age 9) accused him of rape.” The report states that the officer
writing the report then contacted the Franklin County Juvenile Court and learned that the
court’s records contained an affidavit of complaint, wherein S.B. “disclosed that her
daughter, [G.B.] (age 9) had been sodomized by [the Defendant].” The record also states
that G.B. had a forensic examination at the Franklin County Child Advocacy Center,
where an employee “discovered that victim [G.B.’s] rectum muscle was nearly non-
operational[,] indicating repeated anal penetration on several occasions,” and that there
was blood in her rectum. Thereafter, the Defendant was charged with thirteen counts of
rape of a child based on the offenses he had committed against G.B. The report adds that
on November 18, 2003, the Franklin County Juvenile Court determined that the
Defendant “was not psychologically competent to stand trial” and that “placement/release
would endanger his victim.” The juvenile court later found that the Defendant was
“dependent and neglected” and ordered the Defendant to remain in the custody of the
Tennessee Department of Children’s Services. Finally, the officer writing the
presentence report assessed the Defendant and concluded that the Defendant’s “overall
risk” was “high violent.”

       At the conclusion of the sentencing hearing, the trial court applied enhancement
factor (1), that the Defendant had a previous history of criminal behavior. See id. § 40-
35-114(1). The court stated that it was appropriate to apply factor (1) to both convictions
because the Defendant’s sexual abuse of G.B. had been “documented” and had been
                                           - 14 -
testified to by G.B. The court also applied enhancement factor (7), that the offense
involved a victim and was committed to gratify the defendant’s desire for pleasure or
excitement, to the rape of a child conviction. See id. § 40-35-114(7). It found that there
were no mitigating factors that applied in this case. Before imposing the sentence in this
case, the court then made the following statement:

               [T]his is one of the most horrific acts and events that I’ve seen in
      terms of a child. I’m taking into consideration the victim impact statement.
      . . . I will note that [the victim is] present in the courtroom. I will note that
      I do remember her testimony. I do also take note of the mother, the victim
      impact statement [from her].

             It seems that this is one of those cases that, somehow or another,
      prior behavior of the same nature has kind of slipped through the cracks.
      And there is no other conviction [for this criminal behavior], but that I can’t
      concern myself with. There’s enough evidence in this case. The jury came
      back with a unanimous verdict that he was guilty of rape of a child and
      aggravated sexual battery.

The trial court then sentenced the Defendant as a Range I, standard offender to
concurrent, within-range sentences of forty years at one hundred percent for the rape of a
child conviction and ten years at one hundred percent for the aggravated sexual battery
conviction. See Tenn. Code Ann. §§ 39-13-504(b), -522(b)(1), (b)(2)(A), 40-35-
112(a)(1), (2), -501(i).

       We note that the 2005 amendments to the sentencing act “served to increase the
discretionary authority of trial courts in sentencing.” State v. Bise, 380 S.W.3d 682, 708
(Tenn. 2012). In light of this broader discretion, “sentences should be upheld so long as
the statutory purposes and principles, along with any applicable enhancement and
mitigating factors, have been properly addressed.” Id. at 706. The amendments to the
sentencing act also “rendered advisory the manner in which the trial court selects a
sentence within the appropriate range, allowing the trial court to be guided by—but not
bound by—any applicable enhancement or mitigating factors when adjusting the length
of a sentence.” Id. This court reviews a trial court’s sentencing determinations under “an
abuse of discretion standard of review, granting a presumption of reasonableness to
within-range sentencing decisions that reflect a proper application of the purposes and
principles of our Sentencing Act.” Id. at 707.

        Pursuant to the 2005 amendments to the sentencing act, a trial court must consider
the following when determining a defendant’s specific sentence:

                                           - 15 -
      (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 §§ 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;
      (7)    Any statement the defendant wishes to make on the defendant’s own
             behalf about sentencing; and
      (8)    The result of the validated risk and needs assessment conducted by
             the department and contained in the presentence report.

Tenn. Code Ann. § 40-35-210(b). The defendant has the burden of showing the
impropriety of the sentence on appeal. Id. § 40-35-401, Sentencing Comm’n Cmts. The
trial court shall impose “a sentence justly deserved in relation to the seriousness of the
offense[.]” Id. § 40-35-102(1). The court must consider the defendant’s potential for
rehabilitation or treatment. Id. §§ 40-35-102, -103. In addition, the court must impose a
sentence “no greater than that deserved for the offense committed” and “the least severe
measure necessary to achieve the purposes for which the sentence is imposed.” Id. §§
40-35-103(2), (4).

        The Defendant argues that the trial court erred in applying enhancement factor (1)
based on G.B.’s testimony that the Defendant raped her when she was a child. Initially,
we note that facts relevant to sentencing must be proven only by a preponderance of the
evidence. State v. Winfield, 23 S.W.3d 279, 283 (Tenn. 2000). This court has held that a
trial court may find evidence of criminal behavior “regardless of whether it resulted in
arrest, indictment, or conviction[.]” State v. Massey, 757 S.W.2d 350, 352 (Tenn. Crim.
App. 1988). Moreover, “enhancement is permissible when the episodes of criminal
behavior are established by the testimony of witnesses.” State v. Anthony Joel Allen, Jr.,
No. 01C01-9612-CC-00514, 1998 WL 235963, at *4 (Tenn. Crim. App. May 7, 1998);
see State v. Hunter, 926 S.W.2d 744, 749 (Tenn. Crim. App. 1995) (concluding that a
victim’s testimony concerning unindicted acts of sexual misconduct was sufficient to
support application of the enhancement factor regarding the defendant’s criminal
behavior). Accordingly, we conclude that G.B.’s testimony at the sentencing hearing
provided sufficient evidence to support the application of this enhancement factor.

      We also note that the presentence investigation report provided further evidence
supporting the application of enhancement factor (1). The report shows that the
                                          - 16 -
Defendant admitted that G.B. had accused him of raping her when she was nine years
old. The report relied on records from the Franklin County Juvenile Court, which
provided information regarding the investigation into G.B.’s allegations and gave an
explanation for why criminal charges in this case were never brought against the
Defendant. We conclude that based upon G.B.’s testimony at the sentencing hearing and
the contents of the presentence investigation report, the trial court properly applied
enhancement factor (1) to both of the Defendant’s convictions.

       After reviewing the record, we additionally conclude that the trial court did not
abuse its discretion in sentencing the Defendant to an effective forty-year sentence. The
evidence presented, the nature of the criminal conduct involved, and the trial court’s
application of enhancement factors provide a sufficient basis for the trial court’s
imposition of concurrent, within-range sentences of forty years for the rape of a child
conviction and ten years for the aggravated sexual battery conviction. Because the record
establishes that the trial court properly considered the purposes and principles of
sentencing as well as the applicable enhancement and mitigating factors, we uphold the
Defendant’s effective forty-year sentence.

                                    CONCLUSION

       Based on the aforementioned authorities and reasoning, the judgments of the trial
court are affirmed.




                                            ____________________________________
                                            CAMILLE R. MCMULLEN, JUDGE




                                         - 17 -
