        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                   May 7, 2013 Session

                STATE OF TENNESSEE v. JAY EARL HAYNES

                      Appeal from the Circuit Court for Dyer County
                          No. 09-CR-288 Lee Moore, Judge



                   No. W2012-01917-CCA-R3-CD - Filed July 17, 2013


Appellant, Jay Earl Haynes, was indicted by the Dyer County Grand Jury in August 2009, for
two counts of rape in connection with the anal rape of the two mentally-incapacitated
grandsons of Appellant’s live-in girlfriend. Appellant argues that the evidence was
insufficient to support his convictions because he could not have known that the victims were
mentally incapacitated and that the trial court erred in imposing consecutive sentences. After
a thorough review of the record, we conclude that there is ample evidence upon which a
reasonable trier of fact could find that Appellant knew of the victims’ mental incapacity and
that his criminal activity was so extensive as to support the imposition of consecutive
sentences. Therefore, we affirm the judgments of the trial court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Trial Court are Affirmed.

J ERRY L. S MITH, J., delivered the opinion of the court, in which N ORMA M CG EE O GLE and
A LAN E. G LENN, JJ., joined.

H. Tod Taylor, Assistant Public Defender, Dyersburg, Tennessee, for appellant, Jay Earl
Haynes.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney
General; and Phillip Bivens, District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                    Factual Background

       In June 2009, the male victims, who are twins, were nineteen years old. The victims
lived with their mother and required constant adult supervision because they had the mental
development of a child. The evening of June 26, their grandmother and her boyfriend,
Appellant, picked the victims up to spend the night. Appellant had been dating their
grandmother for about five months and living with her for about two weeks. The
grandmother and Appellant had taken the victims out dancing a few times before June 26.

       The victims’ grandmother was the supervisor of the kitchen at the Dyer County Jail.
Very early in the morning of June 27, she received a call that she needed to be at work at
4:00 a.m. She tried to call the victims’ mother but was unable to reach her. She left for work
while Appellant and the victims were sleeping.

        In the morning, Appellant asked one of the victims to come into the bedroom.
Appellant told the victim to pull his pants down. After using lotion to lubricate the victim’s
anus, he penetrated the victim and anally raped him. After Appellant was finished, he wiped
the victim with a towel. The victim said he saw blood on the towel. The victim’s brother
was not present during the rape. Appellant next raped the other victim in the living room on
the mattress on which the victims slept the night before. Appellant also raped each victim
a second time, one in the bedroom and one in the living room. Appellant told the victims not
to tell what had happened. Their grandmother came home and took them to their mother’s
house around 6:00 p.m.

       When they arrived home, their mother stated that she could tell something was wrong
because they were both withdrawn. They told her what had occurred while at their
grandmother’s house. As a result, their mother called their father and the police. The victims
were taken to the hospital for an examination where nurses examined them and found that
both victims showed signs of anal redness and slight injury to the anus.

       The victims’ father decided to confront Appellant. The victims’ father drove to his
mother’s house and sat in his car to watch the house. He saw Appellant come out of the
house to the “burn barrel” and put some trash in the barrel. Appellant “lit the barrel.”
Appellant began to bring what appeared to be sheets to the barrel as well. Before Appellant
could put the sheets in the barrel, the victims’ father ran over and knocked the barrel over to
put out the fire. The victims’ father took the sheets to the police. Appellant was
apprehended a few days later.

       On August 10, 2009, the Dyer County Grand Jury indicted Appellant for two counts
of rape. A jury trial was held January 25 and 26, 2012, and the jury convicted Appellant of
both counts. The trial court held a sentencing hearing on February 28, 2012, and imposed
a sentence of twenty years for each count to be served at 100 percent as a multiple rapist.
The trial court also ordered that the sentences be served consecutively.

       Appellant appeals both his convictions and his sentence.

                                              -2-
                                        ANALYSIS

                                Sufficiency of the Evidence

       On appeal, Appellant argues that the evidence was insufficient to support his two
convictions for rape because “[e]ven if this court concludes that a rational juror could have
found beyond a reasonable doubt the element of lack of consent via mental defect,
[Appellant] did not know nor could he have known that [the victims] were unable to consent
to sex due to that defect.” The State disagrees.

       When a defendant challenges the sufficiency of the evidence, this Court is obliged to
review that claim according to certain well-settled principles. A verdict of guilty, rendered
by a jury and “approved by the trial judge, accredits the testimony of the” State’s witnesses
and resolves all conflicts in the testimony in favor of the State. State v. Cazes, 875 S.W.2d
253, 259 (Tenn. 1994); State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). Thus, although the
accused is originally cloaked with a presumption of innocence, the jury verdict of guilty
removes this presumption “and replaces it with one of guilt.” State v. Tuggle, 639 S.W.2d
913, 914 (Tenn. 1982). Hence, on appeal, the burden of proof rests with the defendant to
demonstrate the insufficiency of the convicting evidence. Id. The relevant question the
reviewing court must answer is whether any rational trier of fact could have found the
accused guilty of every element of the offense beyond a reasonable doubt. See Tenn. R. App.
P. 13(e); Harris, 839 S.W.2d at 75. In making this decision, we are to accord the State “the
strongest legitimate view of the evidence as well as all reasonable and legitimate inferences
that may be drawn therefrom.” Tuggle, 639 S.W.2d at 914. As such, this Court is precluded
from re-weighing or reconsidering the evidence when evaluating the convicting proof. State
v. Morgan, 929 S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews, 805 S.W.2d
776, 779 (Tenn. Crim. App. 1990). Moreover, we may not substitute our own “inferences
for those drawn by the trier of fact from circumstantial evidence.” Matthews, 805 S.W.2d
at 779. Further, questions concerning the credibility of the witnesses and the weight and
value to be given to evidence, as well as all factual issues raised by such evidence, are
resolved by the trier of fact and not the appellate courts. State v. Pruett, 788 S.W.2d 559,
561 (Tenn. 1990). “The standard of review ‘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)).

       Appellant was indicted under Tennessee Code Annotated section 39-13-503(a)(3).
That statute defines rape as “the unlawful sexual penetration of a victim by the defendant or
the defendant by the victim . . . [and] [t]he defendant knows or has reason to know that the
victim is mentally defective, mentally incapacitated or physically helpless . . . .” T.C.A. §
39-13-503(a)(3). “Sexual penetration” is defined as “sexual intercourse, cunnilingus, fellatio,

                                              -3-
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[.]” T.C.A. § 39-13-501(7).

        In his brief, Appellant does not argue that there was no penetration. Instead, he argues
that the victims had the mental capacity to consent to sex and that Appellant could not have
known that they could not consent. There was ample testimony by Dr. Fred Steinberg, who
tested and examined the victims, that the victims were both mildly mentally retarded and had
a low IQ. They both functioned at a five-year-old level with regard to their development,
including language development, self-direction, and socialization. He stated that neither
victim understood what sexual intercourse was. They both failed what Dr. Steinberg termed
the “personal safety test,” which measured their ability to say no. Dr. Steinberg also opined
that at the time of the rapes, the victims did not have the ability to consent to sexual
intercourse.

       Regardless of this testimony, the question of the consent of the victim is not a
condition of rape under Tennessee Code Annotated section 39-13-503(a)(3). To be guilty
of rape under the statute in question, the State needed to prove that there was sexual
penetration and that Appellant knew or had reasons to know that the victims were “mentally
defective, mentally incapacitated or physically helpless.” T.C.A. § 39-13-503(a)(3).

        At trial, the victims’ mother testified that she told their grandmother when Appellant
was present that the victims were never to be left alone. The victims’ aunt testified that she
had been around Appellant while he was dating her mother-in-law. She testified that on one
occasion Appellant and the victims’ grandmother were taking the victims line-dancing. Their
aunt told Appellant that the victims were mentally retarded and that they needed to keep a
close eye on the victims because they were going to be in a large crowd of people. The
victim’s grandmother also testified that she told Appellant that the victims “had the mind of
a seven-year-old [child] and they had to be with [her] all the time or their mother or their
father.” In addition, one of the nurses who examined one of the victims said that she could
tell almost immediately that the victim she was examining had a mental deficiency.

       As stated above, it is the province of the jury to determine the credibility of the
witnesses and the weight to be given to the evidence presented at trial. Pruett, 788 S.W.2d
at 561. Three witnesses testified that they informed Appellant that the victims had a mental
deficiency and were severely developmentally delayed. We conclude that there was ample
evidence upon which a reasonable trier of fact could find that Appellant knew of the victims’
mental defect or incapacity.

       Therefore, this issue is without merit.

                                              -4-
                                         Sentencing

      Appellant also argues that the sentence imposed by the trial court was excessive
because the trial court ordered the sentences to be served consecutively.

       Appellate review of sentencing is for abuse of discretion. We must apply “a
presumption of reasonableness to within-range sentencing decisions that reflect a proper
application of the purposes and principles of our Sentencing Act.” State v. Bise, 380 S.W.3d
682, 707 (Tenn. 2012).

        In making its sentencing determination, the trial court, at the conclusion of the
sentencing hearing, first determines the range of sentence and then determines the specific
sentence and the appropriate combination of sentencing alternatives by considering: (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 enhancement and mitigating factors; (6) any statistical information
provided by the administrative office of the courts regarding sentences for similar offenses;
(7) any statements the defendant wishes to make in the defendant’s behalf about sentencing;
and (8) the potential for rehabilitation or treatment. T.C.A. §§ 40-35-210(a), (b), -103(5);
State v. Williams, 920 S.W.2d 247, 258 (Tenn. Crim. App. 1995).

       The trial court is still required to place on the record its reasons for imposing the
specific sentence, including the identification of the mitigating and enhancement factors
found, the specific facts supporting each enhancement factor found, and the method by which
the mitigating and enhancement factors have been evaluated and balanced in determining the
sentence. See Bise, 380 S.W.3d at 706, n.41; State v. Samuels, 44 S.W.3d 489, 492 (Tenn.
2001). Thus, under Bise, a “sentence should be upheld so long as it is within 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 710.

        Under Tennessee Code Annotated section 40-35-115(a), if a defendant is convicted
of more than one offense, the trial court shall order the sentences to run either consecutively
or concurrently. A trial court may impose consecutive sentencing upon a determination that
one or more of the criteria set forth in Tennessee Code Annotated section 40-35-115(b)
exists. This section permits the trial court to impose consecutive sentences if the court finds,
among other criteria, that, “(2) [t]he defendant is an offender whose record of criminal
activity is extensive, . . .” T.C.A. § 40-35-115(b)(2). When imposing a consecutive
sentence, a trial court should also consider general sentencing principles, which include
whether or not the length of a sentence is justly deserved in relation to the seriousness of the

                                              -5-
offense. See State v. Imfeld, 70 S.W.3d 698, 708 (Tenn. 2002). The imposition of
consecutive sentencing is in the discretion of the trial court. See State v. Adams, 973 S.W.2d
224, 230-31 (Tenn. Crim. App. 1997).

        At the conclusion of the sentencing hearing, the trial court ordered that the sentences
be served consecutively because of his extensive criminal activity based upon Tennessee
Code Annotated section 40-35-115(b)(2). At the time of the generation of the sentencing
report, Appellant was fifty years old. Appellant’s criminal history began when he was
twenty-four years old with a conviction for driving with a revoked license. He then had
multiple convictions and dispositions for driving offenses, such as reckless driving, driving
under the influence (“DUI”), and driving with a revoked license. When he was twenty-six,
he committed an offense and was subsequently convicted of rape and sentenced to twelve
years. His next offense occurred when he was thirty-four, about eight years later. He was
convicted of DUI and theft. A year later at the age of thirty-five, he committed an offense
that resulted in a conviction for aggravated sexual battery and a ten year sentence. Nine years
later at the age of forty-four, he committed theft and aggravated burglary. These charges
resulted in convictions for those two offenses as well as a conviction for felony failure to
appear. He was sentenced to three years for these offenses. Then at the age of forty-eight
he committed the offenses at hand. It appears that Appellant has either been breaking the law
or serving a sentence for breaking the law for over twenty-years from the age of twenty-four
up to the current offenses. We agree with the trial court that this constitutes extensive
criminal history and warrants the imposition of consecutive sentences. Therefore, we
conclude that there was no abuse of discretion.

       This issue is without merit.

                                      CONCLUSION

       For the foregoing reasons, we affirm the judgments of the trial court.




                                           ___________________________________
                                           JERRY L. SMITH, JUDGE




                                              -6-
