                                                                                           07/02/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                            Assigned on Brief May 30, 2019

            STATE OF TENNESSEE v. COY JEWEL MAYBERRY

                   Appeal from the Circuit Court for Cocke County
                       No. 7732       Carter S. Moore, Judge



                             No. E2018-01597-CCA-R3-CD



A Cocke County jury found the Defendant, Coy Jewel Mayberry, guilty of rape of a child,
and the trial court sentenced the Defendant to forty years of incarceration. The Defendant
contends that the evidence is insufficient to sustain his conviction and that the trial court
erred when it imposed the maximum allowable sentence. After a thorough review of the
record and applicable law, we affirm the trial court’s judgment.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which JOHN EVERETT
WILLIAMS, P.J., and ROBERT L. HOLLOWAY, JR., J., joined.

Keith E. Haas, Newport, Tennessee, for the Appellant, Coy Jewel Mayberry.

Herbert H. Slattery III, Attorney General and Reporter; Courtney N. Orr, Assistant
Attorney General; Jimmy B. Dunn, District Attorney General; and Tonya K. Thornton,
Assistant District Attorney General for the Appellee, State of Tennessee.

                                        OPINION
                                         I. Facts

         A Cocke County grand jury indicted the Defendant for rape of a child and
aggravated sexual battery. The State dismissed the aggravated sexual battery charge prior
to trial and proceeded on the rape of a child charge.

                                          A. Trial

       At the Defendant’s trial, the State presented the following evidence:
        The victim testified that she was thirteen years old at the time of trial. The victim
stated that she lived with her grandparents along with her two sisters. Her mother, the
Defendant’s wife, lived together with one of the victim’s other sisters. The victim had
lived with her grandparents for most of her life but visited with her mother. When the
victim’s school was not in session, she spent the day at the Boys and Girls Club, which was
located close to her mother’s home. The victim’s grandparents would leave her at her
mother’s home until the club opened for the day. She would return to her mother’s home
in the afternoon to wait for her grandparents to pick her up. The Defendant was usually at
the victim’s mother’s home during these times.

       Testifying about 2016, the victim stated that she knew what sex was at the time.
She had learned about sex in school but had never had intercourse. The victim sometimes
spent the night at her mother’s house, and, on those nights, the victim and her sister slept in
bed with their mother, and the Defendant slept on the couch.

       One night in 2016, the victim left the Boys and Girls Club and went to her mother’s
house; she asked to spend the night, and her grandparents and mother agreed. She
watched a movie with her mother and the Defendant in the living room of her mother’s
home. The victim and her mother watched the movie while seated on the living room
couch and the Defendant was seated in a chair. At some point during the movie, the
victim’s mother got scared and left the room. The Defendant then sat on the couch with
the victim; he smelled of alcohol. The Defendant moved closer to the victim, getting in
her “bubble” or personal space. His shoulders and legs were touching the victim’s, and
she asked him to move away from her. The Defendant put a pillow over the victim’s face
and pulled down her shorts to her knees. The Defendant also pulled down his shorts and
got on top of the victim, putting his penis in her vagina. The Defendant was moving while
his penis was inside the victim’s vagina in a “back and forth rotation.” At some point the
victim’s mother coughed in the other room, and the Defendant got up from the couch and
went outside. The victim locked herself in the bathroom and used the toilet; she found
blood on the toilet paper she used. She then went to her mother’s room and lay down in
her mother’s bed. She did not tell her mother what had happened.

       The next day, the victim returned to her grandparents’ house. She did not tell them
what had happened right away but did so a short period of time later in December of 2016.
The victim’s grandmother contacted law enforcement. The victim later participated in a
forensic interview. The victim testified that the Defendant told her if she told anyone he
would rape her again.

       On cross-examination, the victim testified that she had lived with her grandparents
since she was two years old. The victim stated that her grandparents served as the parental

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authority in her life and that her mother was more like a sister. The victim agreed that she
had a boyfriend in 2016.

         The victim testified that she was interviewed by a woman named Jenny in 2017 at
“Safe Harbor.” The victim agreed that some of what she had testified to in court had not
been mentioned in her interview with Jenny. A video recording of the interview was
played for the jury.1 The victim agreed that she did not scream for her mother while the
Defendant raped her. The victim said she did not tell anyone about the rape immediately
after it occurred because she felt no one cared.

        The victim’s grandmother testified that in December of 2016, the victim told her
that something had happened between the victim and the Defendant. The victim told her
grandmother “details” about what had happened, and the victim’s grandfather contacted
law enforcement. The victim’s grandmother realized that the victim had been losing
weight and become more reserved prior to her disclosure. The victim’s grandfather
testified that he immediately contacted the authorities when he learned of the Defendant’s
actions.

       C.J. Ball testified that he worked at the sheriff’s office in 2016 and that the victim’s
grandfather contacted him about the victim’s allegations against the Defendant. The
victim’s grandmother eventually called Detective Ball and relayed the details of the
victim’s allegations which he forwarded to the Department of Children’s Services on
December 28, 2017.

           Based on this evidence, the jury convicted the Defendant of rape of a child.

                                                B. Sentencing

        At the Defendant’s sentencing hearing, the following evidence was presented: The
victim’s grandmother testified that the victim was thirteen years old at the time of
sentencing and lived with her grandmother. She testified about the impact of the
Defendant’s crimes on the victim, including that the victim became withdrawn after the
rape, as well as had a poor appetite and no desire to socialize. The victim was irritable and
lost approximately thirty pounds. Since the Defendant’s trial, the victim continued to be
withdrawn and private, and she continued to go to counseling. The victim’s grandmother
stated that the Defendant had been married to the victim’s mother at a certain point. The
victim’s grandmother stated that her family had helped the Defendant financially and given
him a place to live in the past.


1
    The video was not entered into the record as an exhibit and is not included in the record on appeal.

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        The trial court stated that the Defendant would be sentenced as a Range II offender
based on his felony conviction for rape of a child. T.C.A. § 39-13-522(b)(2)(A). The
trial court found that none of the potential mitigating factors applied in this case. The trial
court gave “some” weight to enhancement factor (1), that the Defendant had a previous
history of criminal convictions. T.C.A. § 40-35-114(1). The trial court applied
enhancement factor (14), that the Defendant was in a position of trust when he abused the
victim, who was also his wife’s daughter, while she was in his care in a step-parent role.
T.C.A. § 40-35-114(14). The trial court sentenced the Defendant to forty years in the
Tennessee Department of Correction. It is from this judgment that the Defendant now
appeals.

                                         II. Analysis

       The Defendant asserts that the evidence is insufficient to sustain his conviction and
that the trial court erred when it imposed the maximum allowable sentence. The State
responds that the evidence is sufficient to sustain the Defendant’s conviction for rape of a
child and that the trial court sentenced him properly.

                              A. Sufficiency of the Evidence

       The Defendant argues that the evidence is insufficient to sustain his conviction for
rape of a child because the victim’s testimony was inconsistent with her forensic interview,
as was the victim’s behavior after the rape with her behavior at trial. The State responds
that the evidence presented established the statutory elements for the offense beyond a
reasonable doubt, and that any inconsistencies in the victim’s testimony were resolved by
the jury’s verdict. We agree with the State.

       When a defendant challenges the sufficiency of the evidence, this court’s standard
of review is whether, after considering the evidence in the light most favorable to the State,
“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) (emphasis in original);
see Tenn. R. App. P. 13(e); State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing
State v. Reid, 91 S.W.3d 247, 276 (Tenn. 2002)). This rule applies to findings of guilt
based upon direct evidence, circumstantial evidence, or a combination of both direct and
circumstantial evidence. State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App.
1999) (citing State v. Dykes, 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990)). In the
absence of direct evidence, a criminal offense may be established exclusively by
circumstantial evidence. Duchac v. State, 505 S.W.2d 237, 241 (Tenn. 1973). “The jury
decides the weight to be given to circumstantial evidence, and ‘[t]he inferences to be drawn
from such evidence, and the extent to which the circumstances are consistent with guilt and
inconsistent with innocence, are questions primarily for the jury.’” State v. Rice, 184

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S.W.3d 646, 662 (Tenn. 2006) (quoting Marable v. State, 313 S.W.2d 451, 457 (Tenn.
1958)). “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)).

        In determining the sufficiency of the evidence, this Court should not re-weigh or
reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App.
1990). Nor may this Court substitute its inferences for those drawn by the trier of fact
from the evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999) (citing Liakas v.
State, 286 S.W.2d 856, 859 (Tenn. 1956)). “Questions concerning the credibility of
witnesses, the weight and value to be given the evidence, as well as all factual issues raised
by the evidence are resolved by the trier of fact.” State v. Bland, 958 S.W.2d 651, 659
(Tenn. 1997). “‘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.’” State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978) (quoting State v. Grace,
493 S.W.2d 474, 476 (Tenn. 1973)). The Tennessee Supreme Court stated the rationale
for this rule:

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

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d 523,
527 (Tenn. 1963)). This court must afford the State the “‘strongest legitimate view of the
evidence’” contained in the record, as well as “‘all reasonable and legitimate inferences’”
that may be drawn from the evidence. Goodwin, 143 S.W.3d at 775 (quoting State v.
Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). Because a verdict of guilt against a defendant
removes the presumption of innocence and raises a presumption of guilt, the convicted
criminal defendant bears the burden of showing that the evidence was legally insufficient
to sustain a guilty verdict. State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000).

       A conviction for rape of a child requires “the unlawful sexual penetration of a victim
by the defendant or the defendant by a victim, if the victim is more than (3) years of age but
less than thirteen (13) years of age.” T.C.A. § 39-13-522(a) (2014). Tennessee Code
Annotated section 39-13-501(6) and (7) defines sexual penetration as “sexual intercourse,
cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of

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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 . . . .” and sexual contact as “the intentional
touching of the victim’s, the defendant’s, or any other person’s intimate parts. . . .” There
is sexual penetration, in a legal sense, if there is the “slightest penetration” of a female’s
sexual organ. State v. Bowles, 52 S.W.3d 69, 74 (Tenn. 2001). This includes the “outer
folds” of the vagina. Id.

       In the present case, the evidence presented at trial, viewed in the light most
favorable to the State, was that the victim, younger than thirteen years old at the time, spent
her afternoon or evenings at her mother’s house during the summer. The Defendant also
resided there. The victim sometimes spent the night and, on a particular night that the
victim stayed over, the Defendant covered her head with a pillow and penetrated her vagina
with his penis. This is sufficient evidence from which a jury could conclude beyond a
reasonable doubt that the Defendant was guilty of rape of a child. Additionally, the
recorded forensic interview is not included in the record, providing us with no evidence of
the alleged inconsistencies. However, as we have stated, any inconsistencies in the
victim’s testimony with her prior statements or interviews were resolved by the jury’s
verdict, and we will not insert a credibility judgment at the appellate level. See Bland, 958
S.W.2d at 659; Cabbage, 571 S.W.2d at 835. The Defendant is not entitled to relief.

                                       B. Sentencing

       The Defendant also contends that the trial court erred when it sentenced him to the
maximum allowable sentence within the range given that, without the requirement of
Tennessee Coda Annotated section 39-13-522(2)(a) that he be sentenced as a Range II
offender, his prior criminal history would have put him as a Range I offender. This fact,
he argues, should have led the trial court to depart from the maximum sentence. The State
responds that the trial court properly exercised its discretion when it ordered the Defendant
to serve the maximum sentence within the statutorily required sentencing range. We
agree with the State.

       “Sentences imposed by the trial court within the appropriate statutory range are to
be reviewed under an abuse of discretion standard with a ‘presumption of
reasonableness.’” State v. Bise, 380 S.W.3d 682 (Tenn. 2012). A finding of abuse of
discretion “‘reflects that the trial court’s logic and reasoning was improper when viewed in
light of the factual circumstances and relevant legal principles involved in a particular
case.’” State v. Shaffer, 45 S.W.3d 553, 555 (Tenn. 2001) (quoting State v. Moore, 6
S.W.3d 235, 242 (Tenn. 1999)). To find an abuse of discretion, the record must be void of
any substantial evidence that would support the trial court’s decision. Id. at 554-55; State
v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978); State v. Delp, 614 S.W.2d 395, 398 (Tenn.
Crim. App. 1980). The reviewing court should uphold the sentence “so long as it is within

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the appropriate range and the record demonstrates that the sentence is otherwise in
compliance with the purposes and principles listed by statute.” Bise, 380 S.W.3d at
709-10. So long as the trial court sentences within the appropriate range and properly
applies the purposes and principles of the Sentencing Act, its decision will be granted a
presumption of reasonableness. Id. at 707.

       In determining the proper sentence, the trial court must consider: (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 -114; (6) any statistical information provided by the administrative
office of the courts as to sentencing practices for similar offenses in Tennessee; and (7) any
statement the defendant made in the defendant’s own behalf about sentencing. See T.C.A.
§ 40-35-210 (2014); State v. Taylor, 63 S.W.3d 400, 411 (Tenn. Crim. App. 2001). The
trial court must also consider the potential or lack of potential for rehabilitation or
treatment of the defendant in determining the sentence alternative or length of a term to be
imposed. T.C.A. § 40-35-103 (2014).

        We conclude that the trial court properly sentenced the Defendant. The Defendant
was statutorily mandated to be sentenced as a Range II offender. See T.C.A. §
39-13-522(b)(2)(A). The trial court considered the relevant principles and sentenced the
Defendant to a within range sentence. Relevant to enhancement factor (14), the evidence
presented at sentencing was that the Defendant was in a relationship with the victim’s
mother and living in her home when he raped the victim. The victim was in the
Defendant’s and her mother’s care at the time of the rape. This is sufficient evidence to
support the application of this enhancement factor, that the Defendant was in a position of
trust at the time of the crime. We note that “the application of a single enhancement factor
is sufficient to justify the imposition of the maximum sentence in the range.” State v.
James Moore, No. W2015-01483-CCA-R3-CD, 2016 WL 7654955, at *5 (Tenn. Crim.
App., at Jackson, Aug. 23, 2016), no Tenn. R. App. P. 11 filed. The Defendant is not
entitled to relief on this issue.

                                      III. Conclusion

       In accordance with the aforementioned reasoning and authorities, we affirm the trial
court’s judgment.

                                                  _________________________________
                                                  ROBERT W. WEDEMEYER, JUDGE


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