             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                               AT JACKSON
                                  Assigned on Briefs August 5, 2008

                          STATE OF TENNESSEE v. NANCY BLUE

                          Appeal from the Circuit Court for Haywood County
                                No. 5797    Clayburn Peeples, Judge



                         No. W2008-00187-CCA-R3-CD - Filed April 23, 2009


The defendant, Nancy Blue, appeals as of right her jury convictions for two counts of rape of a child
and two counts of incest. She received sentences of twenty-five years for each rape of a child
conviction and six years for each incest conviction.1 The rape of a child sentences were ordered to
be served consecutively and the incest convictions were ordered to be served concurrently, for a total
effective sentence of fifty years. The defendant argues that the evidence is insufficient to support
her convictions and that the trial court imposed an excessive sentence both in length and manner of
service. Following our review, we affirm the convictions but remand for the entry of modified and
corrected judgments consistent with this opinion.

  Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit are Affirmed in Part;
                          Reversed in Part; Case Remanded.

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which THOMAS T. WOODALL , and
NORMA MCGEE OGLE , JJ., joined.

Tom W. Crider, District Public Defender; and J. Diane Blount, Assistant District Public Defender,
attorneys for appellant, Nancy Blue.

Robert E. Cooper, Jr., Attorney General & Reporter; David H. Findley, Assistant Attorney General;
Garry Brown, District Attorney General; Jerald Campbell and Hal Dorsey, Assistant District
Attorneys General, attorneys for appellee, State of Tennessee.




                                                     OPINION


         1
             We note that the judgment for Count Six erroneously reflects a sentence of five years but the transcript
clearly reflects that the trial court imposed sentences of six years for each count of incest. When a discrepancy exists
between an order in the technical record and the transcript, the transcript controls. State v. Moore, 814 S.W.2d 381, 383
(Tenn. Crim. App. 1991).
        The defendant’s convictions arose from reports that she sexually abused L.R. and R.B., her
two oldest sons.2 The indictments allege a wide period of time during which the defendant
committed the rape of a child offenses – January 1, 1999 until April 4, 2005 for L.R. and January
1, 1999 until March 9, 2004 for R.B.. The State’s proof at trial consistently solely of the testimony
of the victims. The defendant presented no proof.

        L.R., fifteen years old at the time of trial, testified that his mother began “sexually raping”
him at the age of seven with the last incident occurring sometime shortly after his thirteenth birthday
on April 5, 2005, but before the end of the school year. He stated that his mother would often
perform oral sex on him and force him to perform oral sex on her. He testified that he had penile
intercourse with his mother also. He recalled that his mother also raped his older brother, R.B., but
not as often. He testified that his mother raped him two to four times each month and that he had
lost count of how many times it had occurred. L.R. initially did not realize it was wrong; once when
he told the defendant he did not want to participate, she counted to three and threatened to whip him
if he did not obey her. He stated that he often saw his mother having sex with her boyfriends and
that she had watched pornographic videos with him and his brother. He admitted that he reported
the abuse to his grandmother on December 19, 2005, after his mother threatened to whip him about
some jewelry she accused him of stealing. However, L.R. explained that he wanted to move out of
the defendant’s house because “I didn’t like her. . . . Me and my brothers made a team and we cared
for our little brother and we stayed in the house most of the time, and I just got tired of it and I didn’t
want to live with her anymore. . . . After that whipping I kn[e]w that it was going to happen over and
over again and that she was going to rape me over and over again even if – even after I said I didn’t
want to do it.” L.R. also testified that he heard the defendant admit the abuse to his grandmother and
aunt.

        R.B., sixteen years old at the time of trial, testified that he had penile intercourse with his
mother. He also stated that she performed oral sex on him and forced him to perform oral sex on
her. He recalled that the abuse began when he was nine or ten years old. He stated that they had sex
two or three times. The abuse stopped when he and his brother told their grandmother.

        Based upon this evidence, the jury found the defendant guilty of rape of a child, rape, and
incest regarding offenses committed against L.R.. The jury also found the defendant guilty of rape
of a child and incest regarding offenses committed against R.B..

                                                      ANALYSIS

                                             Sufficiency of the Evidence

        The defendant argues that the evidence is insufficient to support her convictions for rape of
a child. Specifically, she argues that “[e]xcept for their testimony, there is no evidence in the record
to establish that the defendant had incestuous relations with these two boys who both testified that
they were unhappy with their home situation and wanted to move from their mother’s home.” The


        2
            L.R. testified that his birthdate is April 5, 1992. R.B. testified that his birthdate is March 10, 1991.

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State argues that the proof establishes the defendant’s guilt for these offenses. Following our review,
we agree with the State.

        An appellate court’s standard of review when the defendant questions the sufficiency of the
evidence on appeal 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, 99 S. Ct. 2781, 2789 (1979) (emphasis
in original). The appellate court does not reweigh the evidence; rather, it presumes that the jury has
resolved all conflicts in the testimony and drawn all reasonable inferences from the evidence in favor
of the state. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571
S.W.2d 832, 835 (Tenn. 1978). Questions regarding witness credibility, conflicts in testimony, and
the weight and value to be given to evidence were resolved by the jury. See State v. Bland, 958
S.W.2d 651, 659 (Tenn. 1997). A guilty verdict removes the presumption of innocence and replaces
it with a presumption of guilt, and on appeal the defendant has the burden of illustrating why the
evidence is insufficient to support the jury’s verdict. Id.; State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982). This standard 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).

        Initially we note that the judgments reflect that the trial court merged the rape conviction into
the incest conviction with respect to the offenses committed against L.R.. However, because these
offenses are legally and factually distinct, we conclude that the trial court erroneously merged the
rape conviction into the incest conviction. State v. Brittman, 639 S.W.2d 652, 654 (Tenn. 1982);
William Hackworth v. State, M2003-02148-CCA-R3-PC, 2004WL1686610, at *3 (Tenn. Crim.
App. July 28, 2004) (incest is not a lesser included offense of rape; both convictions are
appropriate). Accordingly, upon remand the trial court shall enter a judgment reflecting the jury’s
verdict in Count Two convicting the defendant of rape, a Class B felony.

         A conviction for rape of a child requires proof beyond a reasonable doubt that (1) the
defendant unlawfully sexually penetrated the victim, (2) who was less than thirteen years old, and
that (3) the defendant acted intentionally, knowingly, or recklessly. Tenn. Code Ann. § 39-13-522
(2003). Sexual penetration is defined, in relevant part, as an “sexual intercourse, cunnilingus, [or]
fellatio.” Tenn. Code Ann. § 39-13-501(7). Essentially, the defendant’s argument on appeal asks
this court to assess the credibility of the victims’ testimony and conclude that the offenses did not
occur. As stated previously, this is something we are precluded from doing. The jury chose to
accredit the victims’ testimony. The requisite elements of rape of a child are established by the
victims’ testimony. Likewise, the requisite elements of rape are established by L.R.’s testimony that
the last time that the defendant forced him to have sex was shortly after his thirteenth birthday before
the end of the school year. Additionally, since the defendant has not contested that she is the
biological mother of the victims, the requisite elements of incest are also established. Therefore, we
conclude that the evidence is sufficient to support the convictions.

                                              Sentencing



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        The trial court increased the defendant’s sentences for rape of a child to the maximum
twenty-five years based upon its application of enhancement factors involving the victims’
particular vulnerability due to age and that the crime was committed to gratify the defendant’s desire
for pleasure or excitement. Tenn. Code Ann. § 40-35-114(4) and (7). The defendant argues that the
trial court erroneously applied these factors because they were not supported by the evidence. The
State asserts that the trial court appropriately applied the enhancement factors and that the maximum
sentence was warranted.

        An appellate court’s review of sentencing is de novo on the record with a presumption that
the trial court’s determinations are correct. Tenn. Code Ann. § 40-35-401(d) (2006). As the
Sentencing Commission Comments to this section note, on appeal the burden is on the defendant
to show that the sentence is improper. This means that if the trial court followed the statutory
sentencing procedure, made findings of fact that are adequately supported in the record, and gave
due consideration and proper weight to the factors and principles that are relevant to sentencing
under the 1989 Sentencing Act, the court may not disturb the sentence even if a different result were
preferred. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

        However, “the presumption of correctness which accompanies the trial court’s action is
conditioned upon the affirmative showing in the record that the trial court considered the sentencing
principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn.
1991). In this respect, for the purpose of meaningful appellate review,

               [T]he trial court must place on the record its reasons for arriving at the final
               sentencing decision, identify the mitigating and enhancement factors found,
               state the specific facts supporting each enhancement factor found, and
               articulate how the mitigating and enhancement factors have been evaluated
               and balanced in determining the sentence.

State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1994) (citation omitted); see Tenn. Code Ann. § 40-35-
210(e) (2006).

         In conducting its de novo review, the appellate court must consider (1) the evidence, if any,
received at the trial and 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, (5) any mitigating or statutory enhancement factors, (6) any statement that the
defendant made on his own behalf, (7) the potential for rehabilitation or treatment, and (8) any
statistical data provided by the Administrative Office of the Courts regarding sentencing for similar
offenses in Tennessee. Tenn. Code Ann. §§ 40-35-102, -103, -210 (2006); see also Ashby, 823
S.W.2d at 168; Moss, 727 S.W.2d at 236-37.

        The defendant stands convicted of offenses that all occurred before the 2005 revision to the
Criminal Sentencing Reform Act. At the onset, we note that both parties failed to recognize that the
trial court’s increase of the defendant’s sentences beyond the presumptive minimum violated our


                                                 -4-
supreme court’s holding in State v. Gomez, 239 S.W.3d 733 (Tenn. 2007) wherein the court held
that:

        the [1989 Criminal Sentencing] Reform Act failed to satisfy the Sixth Amendment
        insofar as it allowed a presumptive sentence to be enhanced based on judicially
        determined facts. That is, to the extent the Reform Act permitted enhancement based
        on judicially determined facts other than the fact of a prior conviction, it violated the
        Sixth Amendment as interpreted by the Supreme Court in Apprendi [v. New Jersey,
        530 U.S. 466, 120 S. Ct. 2348 (2000)], Blakely [v. Washington, 542 U.S. 296, 125
        S. Ct. 2531 (2004)] and Cunningham [v. California, 549 U.S. 270, 127 S. Ct. 856 (2007)].

Gomez, 239 S.W.3d at 740. Having concluded that the enhancement of the defendant’s sentences
beyond the presumptive minimum based upon judicially determined facts violated the defendant’s
Sixth Amendment rights, we need not address the propriety of the trial court’s application of
enhancement factors. Therefore, the defendant’s sentences for each count of rape of a child should
be modified to the presumptive minimum sentence of twenty years. We also note that the defendant
makes no argument regarding the application of enhancement factors to the defendant’s sentences
for incest. However, based upon our conclusion that the rape of a child sentences violated Gomez,
we similarly conclude that the sentences for each count of incest should be modified to the
presumptive minimum sentence of three years. Likewise, we instruct the trial court to be mindful
of Gomez in its determination of an appropriate sentence for the rape case, Count Two, that this
court has directed to be reinstated upon remand.

                                       Consecutive Sentencing

        The trial court ordered the defendant’s twenty-five year sentences for rape of a child to be
served consecutively to one another with the sentences for incest to be served concurrently to the
rape of a child sentences, resulting in an effective sentence of fifty years. The defendant argues that
the imposition of consecutive sentences was improper. We disagree.

         Consecutive sentencing is guided by Tennessee Code Annotated section 40-35-115(b), which
states, in pertinent part, that the trial court may order sentences to run consecutively if it finds by a
preponderance of the evidence that “[t]he defendant is convicted of two or more statutory offenses
involving sexual abuse of a minor with consideration of the aggravating circumstances arising from
the relationship between the defendant and victim or victims, the time span of 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) (2006).
The trial court is required to “specifically recite the reasons” behind imposition of a consecutive
sentence. See Tenn. R. Crim. P. 32(c)(1); see, e.g., State v. Palmer, 10 S.W.3d 638, 647-48 (Tenn.
Crim. App. 1999) (noting the requirements of Rule 32(c)(1) for purposes of consecutive sentencing).
In imposing the consecutive sentences, the trial court stated that “it is the public’s desire through the
Legislature that in cases like this the sentences run consecutively and so I decree that they should do
that.” We conclude that, although the defendant was convicted of two offenses involving the sexual
abuse of minors, the trial court’s findings were insufficient regarding its consideration of the

                                                  -5-
circumstances listed in Tennessee Code Annotated section 40-35-115(b). However, the record in
this case reveals that the two victims, ages seven and nine when these offenses began, were raped
repeatedly by their mother for a period of over five years. The victim impact statements reflect that
the victims suffered significant mental stress due to the abuse, affecting their school work and
behavior. The scope of the sexual activity involving the defendant’s younger son, L.R., was
particularly extensive and prolific. Thus, the trial court’s imposition of consecutive sentences in this
case was proper.

        However, our review of the record reveals that the judgments do not correctly reflect the trial
court’s imposition of consecutive sentences. When a discrepancy exists between an order in the
technical record and the transcript, the transcript controls. State v. Moore, 814 S.W.2d 381, 383
(Tenn. Crim. App. 1991). Upon remand, the judgments shall be corrected as follows:


       Count One       Rape of a Child         20 years        concurrent with Count Three
                                                               consecutive to Counts Four and Six

       Count Three Incest                      3 years         concurrent with Count One
                                                               consecutive to Counts Four and Six

       Count Four      Rape of a Child         20 years        concurrent with Count Six
                                                               consecutive to Counts One and Three

       Count Six       Incest                  3 years         concurrent with Count Four
                                                               consecutive to Counts One and Three


                                          CONCLUSION


        In consideration of the record and arguments of counsel, the judgment of the trial court is
affirmed in part and reversed in part. We remand the case for the correction of judgments to reflect
sentences of twenty years for each rape of a child conviction (Counts One and Four) and three years
for each incest conviction (Counts Three and Six); we affirm the trial court’s imposition of
consecutive sentences but order correction of the judgments to reflect properly the sentences
imposed by the trial court as explained above; we reverse the trial court’s merger of the rape
conviction into the incest conviction and order that a judgment of conviction be entered reflecting
the jury’s verdict in Count Two for rape, a Class B felony; relative to the rape conviction in Count
Two, the case is remanded for the trial court to determine the appropriate sentence with consideration
of Blakely and Gomez and appropriate manner of service.


                                                         ___________________________________
                                                         D. KELLY THOMAS, JR., JUDGE


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