          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                   AT JACKSON

                             JUNE SESSION, 1999
                                                         FILED
                                                          October 21, 1999
STATE OF TENNESSEE,                  )   C.C.A. NO. 02C01-9901-CC-00023
                                                       Cecil Crowson, Jr.
                                     )
                                                     Appellate Court Clerk
            Appellee,                )
                                     )   McNAIRY COUNTY
V.                                   )
                                     )   HON . JON K ERR Y BLA CKW OOD ,
BUFORD WILL BARRETT,                 )
                                     )
            Appe llant.              )   (RAPE OF A CHILD )



FOR THE APPELLANT:                        FOR THE APPELLEE:

GARY F . ANTRICAN                         PAUL G. SUMMERS
District Public Defender                  Attorney General & Reporter

RICKEY GRIGGS                             J. ROSS DYER
Assistant Public Defender                 Assistant Attorney General
P.O. Box 700                              2nd Floor, Cordell Hull Building
Somerville, TN 38068                      425 Fifth Avenue North
(At Trial)                                Nashville, TN 37243

C. MICHAEL ROBBINS                        ELIZABETH RICE
46 North Third Street, Suite 719          District Attorn ey Ge neral
Memphis, TN 38103
(On A ppea l)                             ED NEAL McDANIEL
                                          Assistant District Attorney General
                                          302 Market Street
                                          Somerville, TN 38068




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                    OPINION
       On October 13, 1997, the McNairy County Grand Jury indicted Appellant

Buford Barrett for rape of a child and aggravate d child abuse. After a jury trial on

June 24, 199 8, Appe llant was c onvicted of rape o f a child. After a sentencing

hearing on July 21 , 1998, the trial court senten ced Ap pellant to a term of tw enty

years in the Te nness ee De partme nt of Corre ction.          Appellan t challe nges his

conviction and his sentence, raising the following issues:

       1) whether the evidence was sufficient to support his conviction; and

       2) whether the trial court imposed an excessive sentence.

After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.



                                        I. FACTS




       Gene tt Barrett testified that in M ay of 19 97, sh e and Appe llant we re living in

a residence with their two-year-old daughter. Although Ms. Barrett and Appellant

were married at that time, they subsequently received a divorce.



       Ms. Barrett testified that on May 16, 1997, she and her daughter spent the day

at home. Sometime between 12:00 and 1:00 a.m., Appellant came home from

work. At that time, Ms. Barrett was in the bathroom and her daughter was asleep

on a bed. While Ms. Barrett was in the bathroom, she heard her daughter crying.

Ms. Barrett testified that when she came out of the bathroom, she saw that her

daughter was lying on the bed with her legs hanging over the side and she saw that

Appellant had placed his penis inside her daughter’s vagina.




                                            -2-
      Ms. Barrett testified that when she entered the be droom , Appe llant “jerk ed it

out and pulled up his pants real quick” and went into the kitchen. Appellant then

grabbed a knife and to ld Ms. B arrett th at if she ever told anyone what had happened,

he would kill he r. Ms. Ba rrett then pushe d Appellant ou t of the way and w ent to care

for her daughter. Ms. Barrett subsequently cleaned up the blood that was on her

daughter and the bed. Sh ortly therea fter, Ms. Barrett p ut some ointment on her

daughter and rocked her until she went to sleep.



      Ms. Barrett tes tified that she believed that Appellant’s threats were genuine

and she was afraid. As a result, she did not tell anyone about the incident until two

weeks later wh en she told he r sister.



      Ms. Barrett testified that some time after this incident, she and App ellant were

interviewed by an individual from the Department of Children’s Services. When the

individual asked Ms. Ba rrett wheth er her da ughter had been sexually abused,

Appellant put his foo t on top of hers. Ms. Barrett interpreted this action to be a

reminder of Appe llant’s previou s threat. M s Barrett did not tell the individual about

the incident because she was still afraid.



      On cross-examination, Ms. Barrett testified that when she entered the

bedroom, Appellant had his back toward her. Ms. Barrett then clarified her earlier

testimony by stating that she had not actually seen Appellant’s penis in her

daug hter’s vagina, but she assumed that Appellant had placed his penis in her

daughter’s vagina b ased o n the wa y that App ellant was standing . Ms. Barre tt

admitted that she had been charged with sexually abusing her daughter, but she

denied that sh e ever sexua lly penetrated her d aughter.

                                           -3-
       Dr. Mohamed Bakeer testified that he examined the victim on July 19, 1997.

Dr. Bakee r testified that a t the time o f the exam ination, M s. Barrett reported that the

victim had been abused tw o or three m onths earlier. During the examination , Dr.

Bakeer determined that the victim had a urinary tract infection.



       Dr. Lisa Lon g testified tha t she exa mined the victim o n July 24, 1 997. D r.

Long noted that the victim h ad red ness in the g enital a rea an d that th e victim ’s

genital area was very tende r. Dr, Long also noted that the victim had a vagina that

was large for her age and Dr. Long opined that this was caused by repeated

insertion of an object into the vagina.        Dr. Long also testified that during the

examination, Ms. Barrett reported that the most recent episode of sexual abuse

occurred when Appellant place d his p enis in the victim ’s vagina on the F riday before

July 24, 1997.



       Dr. Paul Gray testified that he ex amine d the victim on July 25 , 1997. Dr. Gray

noted that the victim ’s genital are a appe ared to be abnorm al for a child of that age

and he noted that the hymenal ring was absent and there were lesions on the sk in

around the vagin a. Dr. Gray also testified that Ms. Barrett reported that she had

seen Appellant having intercourse with the victim one week prior to July 25, 1997.



       Dr. Barbara Hostetler testified that she examined the victim on July 29, 1997.

Dr. Hostetler noted that the victim had a severe healed injury to the genital area and

that the hymenal tissue was completely missing. Dr. Hostetler also noted that the

area between the vagina and rectum was very thin, which indicated that the area had

been injured and healed. Dr. Hostetler testified that she could not determine when

the injuries had o ccurre d, but s he op ined that the injuries were caused by

                                            -4-
penetration. Dr. Ho stetler a lso tes tified tha t the inju ries we re not c onsis tent wit h

penetration by a finger.



       Officer Frank LeVasseur of the McNairy County Sheriff’s Department testified

that on De cem ber 12 , 1997 , Ms. B arrett g ave a s tatem ent to p olice in w hich she

admitted to digitally penetrating the victim over a period of time.



                        II. SUFFICIENCY OF THE EVIDENCE




       Appellant contends that the evidence was insufficient to sup port his conviction

for rape of a child. We disagree.



       When an appellant ch alleng es the sufficie ncy of th e evide nce, th is Cou rt is

obliged to review that challenge according to certain well-settled principles. A verdict

of guilty by the jury, appro ved by the trial ju dge, a ccred its the te stimo ny of the State’s

witnesses and res olves all co nflicts in the tes timony in favor of the State. State v.

Cazes, 875 S.W.2d 253, 259 (Tenn. 19 94). A lthoug h an a ccus ed is o riginally

cloaked with a p resum ption of innocence, a jury verdict removes this presumption

and replaces it with one o f guilt. State v. Tu ggle, 639 S.W.2d 913, 914 (Tenn.

1982). Hence, on appeal, the burden of proof re sts with Ap pellant to d emon strate

the insufficiency of the convicting evidence. Id. On appeal, “the [S]tate is entitled

to the stronge st legitimate view of the evidence as well as all reasonable and

legitimate inferences that may be drawn therefrom.” Id. Where the sufficiency of the

evidence is contested on appeal, the relevant question for the rev iewing court is

whether any rational trier of fact could h ave found the accused g uilty of every

element of the offen se beyo nd a rea sonab le doub t. Jack son v. V irginia, 443 U.S.

                                              -5-
307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). In conducting our evaluation

of the convicting evide nce, this Cou rt is precluded from reweighing or reconsidering

the evidenc e. State v. Morgan, 929 S.W .2d 380, 383 (Tenn. Crim . App. 1996 ).

Moreover, this Court may not substitute its own inferences “for those drawn by the

trier of fact from circum stantial evidence.” State v. Matthews, 805 S.W.2d 776, 779

(Tenn. Crim. App. 1990). Finally, Rule 13(e) of the Tenn essee Rules o f Appella te

Procedu re provides, “findings of guilt in criminal actions whether by the trial court or

jury shall be set aside if the evidence is insufficient to support the findings by the trier

of fact beyo nd a rea sonab le doub t.”



       Under Tennessee law, “[r]ape o f a child is the unlawful sexual penetration of

a victim by the defendant . . . if such victim is less than thirteen (13) years old.”

Tenn. C ode Ann . § 39-13-522 (a) (1997).



       Appellant argues that the evidence was insufficient because the only direct

evidence that he sexually penetrated the victim came from the testimony of Ms.

Barrett and Ms. B arrett’s testimony contained inconsistencies that canceled each

other out. The genera l rule in Tenne ssee is that "contra dictory stateme nts by a

witness in connection with the same fact canc el each o ther." State v. Matthews, 888

S.W.2d 446, 449 (T enn. Crim. A pp. 1993). H owever, "[t]his rule of cancellation

applies only whe n incons istency in a witness' te stimony is unexplained and when

neither ve rsion of his testimon y is corrobo rated by o ther evide nce." Id. at 450.



       Appellant argue s that M s. Barr ett’s tes timon y that the offens e in this case was

committed on May 16, 1997, was canceled out by her statements to various medical

personnel that the offense occurred som etime in July o f 1997 . How ever, a s this

                                            -6-
Court has recently stated, the rule of cancellation only ap plies when a w itness’ sworn

statem ents are con tradictory. State v. Roge r Dale B ennett, No. 01C01-9607-CC-

00139, 1998 WL 909487, at *5–6 (Tenn. Crim. App., Na shville, Dec. 31, 199 8),

perm. to appeal denied, (Tenn . 1999). B ecaus e Ms. B arrett’s statements to the

medical personnel were not sworn statements, the rule of cancellation does not

apply.



         Appellant also argu es that M s. Barrett’s te stimon y that she saw Ap pellant with

his penis inside the victim ’s vagina was canceled out by her subsequent testimony

that she did not actually see any penetration. However, Ms. Barrett explained that

although she did not actually see any penetration, she could tell that Appellant was

penetrating the victim based on the way that he was standing.                   Thus, any

inconsistency in Ms. B arrett’s testimony was subsequently explained and the rule of

cance llation doe s not app ly. See Matthews, 888 S.W.2d at 450.



         W e conc lude th at whe n the e videnc e is viewed in the light mos t favorable to

the State, as it mu st be, th e evide nce w as su fficient for a rational jury to conclude

beyond a reasonable doubt that Appella nt had co mm itted the offe nse of ra pe of a

child. Ms. Bar rett testified that when she le ft the ba throom , she h eard th e victim

crying. Ms. Barrett also testified that when she entered the bedroom, she saw the

victim lying on the bed with her legs hanging off the side and she saw Appellant

standing in front of the victim with his pants down. Ms. Barrett testified that when

she entered the bedroom, Appellant “jerked it out and pulled up his pants real quick”

and he then retrieved a knife and threatened to kill Ms. Barrett if she reported the

incident.     Although Ms. Barrett admitted that she could not actually see the

penetration, she testified that she knew what Appellant was doing by the way that

                                             -7-
he was standing. In addition, Ms. Barrett testified that there was a lot of blood on the

bed and th at the vic tim wa s “wet a nd tore .”     Dr. Lo ng tes tified that when she

examined the victim, the victim had a vagina that was large for her age and Dr. Long

opined that this was caused by repeate d insertion of an obje ct into the vagina. Dr.

Gray testified that when he examined the victim, he noted that the hymenal ring was

absent and th at there were lesions on the skin around the vagina. Dr. Hostetler

testified that when she examined the victim, she discovered tha t the victim had

sustained injuries to her genital area that had been caused by forceful penetration

by some thing larger than a finger.



      In short, we conclude that when the evidence is viewed in the light most

favorable to the State, the evidence was sufficient for a rational jury to find beyond

a reasonable doubt that Appellant had committed the offense of rape of a child.

Appellant is not entitled to relief on this issue.



                            III. LENGTH OF SENTENCE




      Appellant contends tha t the trial court errone ously imposed a longer sentence

than he deserves. We disagree.



      “When reviewing sentencing issues . . . including the granting or denial of

probation and the length of sentence, the appellate court shall conduc t a de novo

review on the record of such issues.         Such review shall be conducted with a

presumption that the determinations made by the co urt from which the ap peal is

taken are correct.”     Tenn. Code Ann. § 40-35-401(d) (1997).           “However, the

presumption of correctness which acco mpa nies th e trial co urt’s ac tion is conditioned

                                           -8-
upon the affirmative showing in the record that the trial court considered the

sentencing principles and all relevant facts an d circumstan ces.” State v. Ashby, 823

S.W.2d 166, 169 (Tenn. 1991). In conducting our review, we must consider all the

evidence, the presentence report, the sentencing principles, the enhancing and

mitigating factors, arguments of counsel, the defendant’s statements, the nature and

character of the offense, and the defendant’s potential for rehabilitation. Tenn. Code

Ann. §§ 40-35-103(5), -210(b) (1997 & Supp. 1998 ); Ashby, 823 S.W.2d at 169.

“The defendant has the burden of demo nstrating th at the sen tence is im proper.” Id.



      In this case, A ppellant w as con victed of rap e of a child , a Class A felony. See

Tenn. Code A nn. § 39-13-5 22(b) (1997). The sentence for a Range I offender

convicted of a Class A felony is between fifteen and twenty-five years. Tenn. Code

Ann. § 40-35-112(a)(1) (1997). The presumptive sentence for a Class A felon y is

the midpoint of the ra nge if there are no enhancement or mitigating factors. Tenn.

Code Ann. § 4 0-35-21 0(c) (199 7). If the court finds that enhancement and mitigating

factors are applicable, the court must begin with the midpoint and enhance th e

sentence to appropriately reflect the w eight of any statutory en hancem ent factors

and then the court must reduce the sentence to appropriately reflect the weight of

any mitigating factors. See State v. Chance, 952 S.W.2d 848, 850–51 (Tenn. Crim.

App. 1997 ).



      The record indicates that in determining to impose a sentence of twenty years,

the trial court found that no enhancement or mitigating factors were applicable.

Appellant argue s that th e trial court should have applied two statutory mitigating

factors to reduce his sentence: (11) he committed the offense under circumstances

which demo nstrate that he does not have a sustained intent to violate the law, and

                                           -9-
(13) he has no prior crim inal record . See Tenn. Code Ann. § 40-35-113(11), (13)

(1997).



       W e note that Appellant has failed to support his conclusory statement that the

trial court erred when it failed to apply mitigating factors (11) and (13) with any

explanation as to why these factors were applicab le. However, assuming arguendo

that these factors were applicable, we conclude in our de novo review that these

factors would be en titled to little , if any, we ight under the facts of this case.

Moreover, we conclud e in our de no vo review that the trial court sho uld have applied

enhancement factor (15) because, as the father of the victim charge d with her care

and control, Appe llant ab used a pos ition of p rivate tru st in a w ay that s ignifica ntly

facilitated the com mission of the offense. See Tenn. Code Ann. § 40-35-114(15)

(1997); State v. Hayes, 899 S.W .2d 175, 187 (Tenn. Crim . App. 1995 ). Under these

circumstances, we conclude that a sen tence o f twenty yea rs is entirely ap propriate

in this case. Appellant is not entitled to relief on this issue.



       Accordingly, the judgment of the trial court is AFFIRMED.


                                   ____________________________________
                                   THOMAS T. W OODALL, Judge




CONCUR:



___________________________________
DAVID H. WELLES , Judge


___________________________________
NORMA McG EE OGLE, Judge

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