             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT JACKSON

                              OCTOBER 1998 SESSION      FILED
                                                        December 31, 1998
                                                        Cecil Crowson, Jr.
                                                        Appellate C ourt Clerk
STATE OF TENNESSEE,                   )
                                      )   C.C.A. NO. 02C01-9801-CR-00010
             Appellee,                )
                                      )   SHELBY COUNTY
VS.                                   )
                                      )   HON. BERNIE WEINMAN,
TONY C. YOUNG,                        )   JUDGE
                                      )
             Appellant.               )   (Aggravated Rape, Aggravated
                                          Assault, Aggravated Sexual Battery,
                                          and Especially Aggravated
                                          Kidnapping)



FOR THE APPELLANT:                        FOR THE APPELLEE:


A C WHARTON                               JOHN KNOX WALKUP
District Public Defender                  Attorney General & Reporter

W. MARK WARD                              MARVIN E. CLEMENTS, JR.
Asst. District Public Defender            Asst. Attorney General
Suite 2-01, 201 Poplar Ave.               Cordell Hull Bldg., 2nd Fl.
Memphis, TN 38103                         425 Fifth Ave., North
       (On Appeal)                        Nashville, TN 37243

DONNA J. ARMSTARD                         WILLIAM L. GIBBONS
       -and-                              District Attorney General
TERESA D. JONES
Asst. District Public Defenders           PATIENCE R. BRANHAM,
201 Poplar Ave., 2nd Fl.                  ROSEMARY ANDREWS,
Memphis, TN 38103                                -and-
       (At Trial)                         P.T. HOOVER
                                          Asst. District Attorneys General
                                          201 Poplar Ave., 3rd Fl.
                                          Memphis, TN 38103


OPINION FILED:


AFFIRMED


JOHN H. PEAY,
Judge
                                           OPINION



                On February 28, 1997, the defendant was found guilty by a jury of four

counts of aggravated assault, one count of aggravated rape, one count of aggravated

sexual battery, and one count of especially aggravated kidnapping. On May 16, 1997,

the defendant was sentenced to an effective sentence of forty-three years imprisonment.1

The defendant then filed a motion for a new trial, which was overruled by the trial court.

The defendant now appeals and argues that the evidence was insufficient to support his

convictions.



                After a review of the record and the applicable law, we find no merit to the

defendant’s contentions and thus affirm the defendant’s convictions.



                The defendant’s convictions stem from his involvement in the kidnapping

and rape of two women and a subsequent assault on one of the rape victims, her mother,

and a passenger in their car. At trial, one of the victims, Tamicka Chism, testified to the

following events. On December 24, 1995, Ms. Chism went to a telephone booth outside

her apartment to make a phone call. She was accompanied by a young boy whom she

was babysitting at the time. While at the telephone booth, Ms. Chism was approached

by the defendant who held a gun to her head and forced her and the little boy into his car.

After dropping off the boy, the defendant took Ms. Chism to a house owned by his mother

and over the course of the evening continuously raped and beat her. The next morning,

the defendant gave Ms. Chism a choice as to how she would prefer to be killed: he could

either shoot her, he could slit her throat, or she could ingest rat poison. Ms. Chism chose

the rat poison. After she had ingested two handfuls of the poison, the defendant took her


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          The defendant was sentenced to concurrent terms of twenty-five years for the aggravated
rape and especially aggravated kidnapping convictions, concurrent six year terms for each of the four
aggravated assault convictions, and twelve years for the aggravated sexual battery conviction. These
several sentences were to run consecutively to each other for an effective sentence of forty-three years.

                                                    2
to the bathroom and bathed her. The defendant then partially dressed her, took her back

to her neighborhood, and let her out of the car. She managed to crawl to a neighbor’s

apartment where an ambulance was called. When she arrived at the hospital, she was

examined and found to have suffered a severe trauma to her cervix as well as many

other superficial abrasions and injuries. Ms. Chism described her attacker as a bald,

black male wearing an army outfit and driving a green Volvo with tan interior.



              On January 4, 1996, less than two weeks after the rape of Ms. Chism,

another victim, Joyce Edwards, showed up at the house of Greta Eason. Ms. Edwards

had no clothes on, a large piece of glass protruding from her stomach, a cut in her foot

so deep it exposed the bone, blood and foam coming from her mouth, two black eyes,

and welts all over her back. According to Ms. Eason and her sister, Ms. Edwards told

them she had been kidnapped and raped and beaten by two men, a black man and a

white man. She pointed in the direction of the house owned by the defendant’s mother

and said that was where the rape occurred. Ms. Edwards also told them there was a

truck in the yard of the house. She said she had been beaten with a hose and forced to

eat rat poison and drink rubbing alcohol. She also said that the black man had told her

he was going to kill her and went to a back room to get a gun. At that point, the white man

told her she was on her own and she jumped out of a window to escape.



              At about the same time that Ms. Edwards arrived at Ms. Eason’s house, Ms.

Chism was riding in a car with her mother and her mother’s friend. As they were driving

down the street, Ms. Chism began to recognize the neighborhood. Ms. Chism then

realized that this was the neighborhood where she had been raped. She saw the house

in which she was raped and, as the defendant walked out of the house in an army outfit,

recognized the defendant as her attacker. Although there was conflicting testimony as

to what exactly happened next, some sort of chase ensued. This chase ended when the

cars collided and the defendant retrieved a sledgehammer from the trunk of his green

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Volvo and smashed all of the windows out of Ms. Chism’s mother’s car. The police were

called and the defendant was subsequently found in a nearby house.



             It appears that as the police responded to the incident occurring between

the defendant and Ms. Chism, the police were also responding to a call regarding the

rape of Ms. Edwards. Ms. Edwards told the police that she was raped in a neighboring

house with a red truck in the front yard. She also told them she had jumped out of the

window to escape. The police, relying on the information obtained from Ms. Edwards,

ended up at the house belonging to the defendant’s mother located on Edsel Street.

There was a red truck in the front yard of the house and a broken window with blood

dripping from it on the west side of the house. The police that had responded to the call

involving Ms. Chism then took her to the house on Edsel belonging to the defendant’s

mother, and she identified it as the same house in which she had been raped.



             The police went inside the house to look for any other possible victims.

Inside, the police found a length of garden hose and an empty box of rat poison in the

garbage can outside. The police also apprehended a white male who had been walking

on the street in front of the house and who stated that he had been in the house at the

time of the rape.



             By this time, Ms. Edwards had been transported to the hospital where blood

was found in both her anal and vaginal areas. Medical records indicated that she had

intoxication secondary to being forced to consume rat poison and rubbing alcohol. In

addition, Ms. Edwards was shown a photo line-up in which she identified the defendant

as her attacker.



              The defendant contends that the evidence was insufficient to justify a

rational jury finding him guilty of the charges beyond a reasonable doubt. A defendant

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challenging the sufficiency of the proof has the burden of illustrating to this Court why the

evidence is insufficient to support the verdict returned by the trier of fact in his or her

case. This Court will not disturb a verdict of guilt for lack of sufficient evidence unless the

facts contained in the record and any inferences which may be drawn from the facts are

insufficient, as a matter of law, for a rational trier of fact to find the defendant guilty

beyond a reasonable doubt. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).



              When an accused challenges the sufficiency of the convicting evidence, we

must review the evidence in the light most favorable to the prosecution in determining

whether “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). We do not

reweigh or re-evaluate the evidence and are required to afford the State the strongest

legitimate view of the proof contained in the record as well as all reasonable and

legitimate inferences which may be drawn therefrom. State v. Cabbage, 571 S.W.2d

832, 835 (Tenn. 1978).



              The defendant contends that Ms. Chism had “suspect credibility” and

therefore his convictions for especially aggravated kidnapping and aggravated rape,

based solely on her testimony, are not supported by enough evidence to justify a finding

of guilt beyond a reasonable doubt. However, questions concerning the credibility of

witnesses, the weight and value to be given to the evidence, as well as factual issues

raised by the evidence are resolved by the trier of fact, not this Court. Cabbage, 571

S.W.2d 832, 835. A guilty verdict rendered by the jury and approved by the trial judge

accredits the testimony of the witnesses for the State, and a presumption of guilt replaces

the presumption of innocence. State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). As

it was within the province of the jury to decide whether Ms. Chism’s testimony was

credible, this contention is without merit.




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              The defendant further contends that the evidence was insufficient to

support his convictions for aggravated sexual battery and aggravated assault with regard

to Ms. Edwards. The defendant bases this argument on the grounds that because Ms.

Edwards did not testify at trial as to the identity of her attacker or the circumstances of

the offenses committed against her, the evidence was entirely circumstantial and based

on hearsay and therefore insufficient to justify a finding of guilt beyond a reasonable

doubt. However, it is a well established principle of law in this state that circumstantial

evidence alone may be sufficient to support a conviction. State v. Buttrey, 756 S.W.2d

718, 721 (Tenn. Crim. App. 1988). In order for this to occur, the circumstantial evidence

“must be not only consistent with the guilt of the accused but it must also be inconsistent

with his [or her] innocence and must exclude every other reasonable theory or hypothesis

except that of guilt.” State v. Tharpe, 726 S.W.2d 896, 900 (Tenn. 1987). In addition,

“it must establish such a certainty of guilt of the accused as to convince the mind beyond

a reasonable doubt that [the defendant] is the one who committed the crime.” Tharpe,

726 S.W.2d at 896. Moral certainty as to each element of the offense is required, but

absolute certainty is not. Tharpe, 726 S.W.2d at 896.



              While following the above guidelines, this Court must remember that the

jury decides the weight to be given to circumstantial evidence and that “[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.”

Marable v. State, 313 S.W.2d 451, 457 (Tenn. 1958); State v. Coury, 697 S.W.2d 373,

377 (Tenn. Crim. App. 1985); Pruitt v. State, 460 S.W.2d 385, 391 (Tenn. Crim. App.

1970). As such, it was within the province of the jury to decide how much weight should

be given to the testimony of Ms. Eason and her sister with regard to Ms. Edward’s excited

utterances and the extent to which those excited utterances and other circumstances

linking the defendant to the crime were consistent with the defendant’s guilt. Therefore,

this contention is also without merit.

                                             6
              The defendant’s final contention is that the evidence is insufficient to

support a finding that he committed aggravated assault upon Ms. Chism during the car

chase and subsequent attack that occurred on January 4, 1996. The defendant argues

that because Ms. Chism testified she got out of the car before it was struck by the

defendant’s automobile and there was no other testimony directly contradicting these

statements, the record does not support a finding of guilt beyond a reasonable doubt.

However, Ms. Chism’s mother did testify that her daughter was in the backseat when the

defendant jumped out of his car right after the collision. It is apparent the jury accredited

this testimony over Ms. Chism’s and the defendant’s version of events, as is their

prerogative. Cabbage, 571 S.W.2d at 835. As such, this contention is also without merit.



              In sum, the defendant has failed to illustrate to this Court why the evidence

is insufficient to support the jury’s verdict. The facts contained in the record and

inferences which may be drawn therefrom are more than sufficient to justify the jury’s

finding of guilt beyond a reasonable doubt. As such, the defendant’s convictions are

affirmed.



                                                  ______________________________
                                                  JOHN H. PEAY, Judge



CONCUR:



______________________________
DAVID G. HAYES, Judge



______________________________
L. T. LAFFERTY, Senior Judge




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