             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                   AT JACKSON

                                JULY 1997 SESSION
                                                       FILED
                                                       November 5, 1997

STATE OF TENNESSEE,                  )                Cecil Crowson, Jr.
                                     )                 Appellate C ourt Clerk
                    APPELLEE,        )
                                     )     No. 02-C-01-9604-CR-00121
                                     )
                                     )     Shelby County
v.                                   )
                                     )     Arthur T. Bennett, Judge
                                     )
                                     )     (Rape)
ANTONIO KENDRICK,                    )
                                     )
                   APPELLANT.        )



FOR THE APPELLANT:                         FOR THE APPELLEE:

Mark A. Mesler                             John Knox Walkup
Attorney at Law                            Attorney General & Reporter
200 Jefferson Avenue, Suite 1250           500 Charlotte Avenue
Memphis, TN 38103                          Nashville, TN 37243-0497
(Appeal Only)
                                           Ellen H. Pollack
A C Wharton, Jr.                           Assistant Attorney General
Shelby County Public Defender              450 James Robertson Parkway
201 Poplar Avenue, Suite 2-01              Nashville, TN 37243-0493
Memphis, TN 38103
(Trial Only)                               William L. Gibbons
                                           District Attorney General
Teresa Jones                               201 Poplar Avenue, Suite 3-01
Assistant Public Defender                  Memphis, TN 38103
201 Poplar Avenue, Suite 2-01
Memphis, TN 38103                          David B. Shapiro
(Trial Only)                               Assistant District Attorney General
                                           201 Poplar Avenue, Suite 3-01
                                           Memphis, TN 38103




OPINION FILED:____________________________


AFFIRMED


Joe B. Jones, Presiding Judge
                                    OPINION


       The appellant, Antonio Kendrick (defendant), was convicted of rape, a Class B

felony, by a jury of his peers. The trial court found that the defendant was a standard

offender and imposed a Range I sentence consisting of confinement for ten (10) years in

the Department of Correction. The defendant presents five issues for review. He contends

the evidence contained in the record is insufficient to support his conviction. He also

contends the trial court committed error of prejudicial dimensions by (a) denying his motion

to prevent the State of Tennessee from using a prior theft conviction to impeach him

because the state failed to file a timely notice, (b) refusing to include his special request

embodying the law of resistance in the charge given the jury, and (c) imposing an

excessive sentence. He further contends the indictment returned against him is void

because it does not allege the mens rea required to commit the offense of rape. After a

thorough review of the record, the briefs submitted by the parties, and the law governing

the issues presented for review, it is the opinion of this court that the judgment of the trial

court should be affirmed.

       Robin Shaw, the victim, and the defendant were members of the LeMoyne-Owen

College track team. The team participated in a track meet in Birmingham, Alabama, the

weekend the incident occurred. The bus transporting the team arrived on the LeMoyne-

Owen campus during the early morning hours of September 20, 1992. The bus stopped

at the women’s dormitory. The second stop was at the men’s dormitory. The defendant

exited the bus at this stop. The third and final stop was at the gymnasium. The victim, who

did not live on campus, exited at the gymnasium.

       The victim went inside the athletic office to call a relative to come get her. There

were several track team members waiting to use the telephone. The defendant entered

the office while the victim was waiting to use the telephone. The defendant told the victim

he would take her home. She accepted the offer. They then walked to the defendant’s

dormitory room so he could call a friend to obtain a vehicle to take the victim home. He

told the victim his friend agreed to let him use the friend’s motor vehicle to take her home,

and the friend would come to the dormitory in a few minutes.


                                              2
       While the victim was waiting to go home, the defendant approached the victim and

began kissing her on the neck. She pushed the defendant away and told him to quit. The

defendant persisted and the victim continually resisted the defendant’s advances. Finally,

the defendant pushed the victim and she fell on the bed. The defendant held the victim

with one hand while he removed her clothing with his other hand. He told the victim he

simply wanted to “play” with her. He rubbed her vaginal area and digitally penetrated her.

He subsequently vaginally penetrated the victim with his sexual organ.             The victim

continued to resist the defendant’s actions.

       The victim told the defendant she wanted to leave. She attempted to call her

cousin. Before the victim could say a word, the defendant took the telephone receiver from

her and placed it on the telephone. The defendant refused to allow the victim to leave the

room. He vaginally penetrated the victim a second time while she resisted the defendant’s

conduct. Eventually, the defendant opened the door and let the victim leave the dormitory.

       The defendant presented three witnesses in support of his defense. This testimony

was rebutted by the state. One defense witness, Kevin Cochran, testified a second

defense witness, Kevin Harris, was not at the dormitory as Harris testified. It is obvious the

jury did not believe the defense witnesses.



                                               I.



       The defendant contends the evidence contained in the record will not support a

finding by a rational trier of fact that he was guilty of rape beyond a reasonable doubt.

Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560

(1979). He predicates his argument upon the credibility of the victim. He says the victim’s

testimony “was shown to be incredible by both Defense and State witnesses.” He points

to the fact the state did not introduce any physical evidence to corroborate the victim’s

testimony.

       It is a well-established rule of law that questions concerning the credibility of the

witnesses, the weight and value to be given the testimony of the witnesses, as well as all

factual conflicts in the testimony of the witnesses are resolved by the trier of fact, not this



                                               3
court. State v.Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). As the supreme court said

in State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973): “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.” In other words, this court cannot

redetermine the credibility of the witnesses.       The credibility and believability of the

witnesses were determined by the jury. The state was not required to present physical

evidence, if any existed, to corroborate the testimony of the victim.

       Moreover, the State of Tennessee was not required to present physical evidence

as a prerequisite to a conviction. The testimony of the victim, standing alone, is sufficient

to support a conviction of rape.

       This issue is without merit.



                                              II.



       The first day of trial the assistant district attorney general filed a notice the state

intended to use a prior theft conviction to impeach the defendant if he opted to testify in

support of his defense. The next day defense counsel brought the late filing of the notice

to the attention of the trial court. Defense counsel advised the court, “if Mr. Kendrick takes

the stand I am going to have an objection to the State being able to question him.” The

assistant district attorney general claimed the defendant had not been prejudiced. Defense

counsel candidly admitted she knew of the theft conviction.

       Defense counsel acknowledged she had been furnished with this conviction during

discovery.   This was at least a year prior to the commencement of the trial. This

information was contained in her file. However, defense counsel argued the technical

failure of the state to timely file the notice should nevertheless bar the state from using the

conviction to impeach the defendant. The assistant district attorney general advised the

court if defense counsel wanted a continuance, he would not oppose it. The trial court,

stating the defendant had not been prejudiced by the state’s failure to timely file the motion,

ruled the state could use the theft conviction to impeach the defendant if he testified in

support of his defense.



                                              4
       Rule 609(a)(3), Tennessee Rules of Evidence, provides the “State must give the

accused reasonable written notice of the impeaching conviction before trial.” However, a

technical violation of this rule does not equate to reversible error. State v. Barnard, 899

S.W.2d 617, 622 (Tenn. Crim. App.), per. app. denied (Tenn. 1994). In Barnard the

assistant district attorney general included in his response to the defendant’s motion for

discovery the defendant’s complete criminal record.        However, the assistant district

attorney general did not provide the defendant with written notice as mandated by Tenn.

R. Evid. 609(a)(3). Since the defendant was not prejudiced by the failure to give notice,

this court ruled the failure to provide the requisite notice constituted harmless error. Tenn.

R. App. P. 36(b); Tenn. R. Crim. P. 52(b). Similar results were reached in State v.

Catherine Susan (Suzanne) Smith and William C. Hindman, Hamilton County No. 03-C-01-

9106-CR-00174, 1991 WL 233247 (Tenn. Crim. App., Knoxville, November 13, 1991), per.

app. denied (Tenn. 1992)(notice received on date of trial held harmless error since defense

counsel had prior notice of the defendant’s prior convictions); State v. Burl Lakins,

Claiborne County No. 32 ,1991 WL 84947 (Tenn. Crim. App., Knoxville, May 24, 1991),

per. app. denied (Tenn. 1991)(notice received on eve of trial held harmless error since

defense counsel had prior notice of the defendant’s convictions).

       This issue is without merit.



                                             III.



       The defendant submitted a special request for a jury instruction which embodied the

law pertaining to the “resistance” a victim must exert to avoid being raped. The trial court

refused to include this instruction in the charge he gave to the jury. The court opined the

charge he would give was sufficient to encompass the special request. The special

request submitted by the defendant is as follows:


              The alleged victim need not have resisted to the utmost, nor is
              it required that she have reasonably feared death, or that she
              suffered physical injury. She need only make such resistance
              to the force, if any, of the defendant as seems reasonable to
              offer under the circumstances. The amount of resistance
              required by her depends upon the surrounding circumstances,
              such as the relative strength of the parties, the age and

                                              5
              condition of the female, the uselessness of resistance, and the
              degree of force, if any, manifested by the defendant.


       The trial court charged the jury on the offense of rape. In substance the court told

the jury in order to find the defendant guilty, the jury must determine (a) the defendant had

unlawfully sexually penetrated the victim; (b) the defendant accomplished the sexual

penetration by using force or coercion, and (c) the defendant committed the act

intentionally, knowingly, or recklessly. The terms “force” and “coercion” were defined in the

charge. The term “force” was defined as “compulsion by the use of physical power or

violence.” The term “coercion” was defined as the “threat of kidnapping, extortion, force

or violence to be performed immediately or in the future. . . .”

       Resistance is not an element of the offense. All that is required is either force or

coercion.   In this case, the defendant attempted to overcome this requirement by

establishing the sexual penetration was consensual. However, the defendant did not

present any direct evidence to refute this requirement. The evidence presented was at

best circumstantial. Of course, the victim testified the defendant did use force to sexually

penetrate her.

       The failure to include this special request in the charge given to the jury was

harmless error. Tenn. R. App. P. 36(b). The language contained in the special request is

more favorable to the state than the defendant. It tends to relax or reduce the nature and

extent of the resistance the victim would have to exercise to prevent the defendant from

raping her. Moreover, the defendant has not cited a case in his brief which requires the

trial court to give the instruction on its own motion or at the request of a party to the

prosecution. This court also notes the state has also failed to cite a case which addresses

the necessity of including an instruction in the charge which embraces the language

contained in the special request.

       This issue is without merit.

                                             IV.



       The defendant contends the trial court committed error of prejudicial dimensions by

failing to impose the presumptive minimum sentence for rape. In the alternative, the



                                             6
defendant seeks a new sentencing hearing because the trial court failed to consider the

relevant data mandated by the Tennessee Sentencing Reform Act of 1989.

       The statement of the trial court was extremely brief. The court said: “All right. The

Court has considered this matter and the enhancement recommendations. The Court will

set the punishment at 10 years as charged for rape. You may prepare the judgment

sheets.”

       When the defendant challenges the length of the sentence imposed by the trial

court, it is the duty of this court to conduct a de novo review on the record with a

presumption that the “determinations made by the court from which the appeal is taken are

correct.” Tenn. Code Ann. § 40-35-401(d). This presumption 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). If the record does not establish the trial court considered “the sentencing principles

and all relevant facts and circumstances,” the appellate court reviews the sentencing

issues de novo without a presumption that the determinations made by the trial court are

correct. Id. Since the record is silent in this case, this court will review this issue de novo

without a presumption of correctness.

       There are two enhancement factors supported by the record. First, the record

establishes the defendant has prior convictions for theft and patronizing prostitution. Tenn.

Code Ann. § 40-35-114(1). Second, this offense was committed to gratify the defendant’s

pleasure or excitement. Tenn. Code Ann. § 40-35-114(7). The defendant began by

kissing the victim on the neck. He then pushed her onto the bed and removed her clothing.

He told her he wanted to “play” with her. He caressed the vaginal area of her body and

digitally penetrated her. He then penetrated her vagina with his sexual organ until he

reached a climax. Later, he sexually penetrated the victim’s vagina with his sexual organ

a second time. He continued to penetrate her until he reached a climax. The defendant

then went to sleep after he satisfied himself.

       There are no mitigating factors supported by the record. In fact, the defendant

showed his arrogance and lack of remorse by blowing a kiss to the victim in the courtroom.

       The trial court did not abuse its discretion by imposing a sentence of ten years.



                                              7
Given the two enhancement factors, the sentence imposed is fair and fits the offense

committed by the defendant.

       This issue is without merit.



                                             V.



       The defendant contends the indictment returned against him is void because it does

not allege the mens rea necessary to commit the crime of rape. He predicates his

argument on this court’s decision in State v. Roger Dale Hill Sr., Wayne County No. 01-C-

01-9508-CC-00267, 1996 WL 346941 (Tenn. Crim. App., Nashville, June 20, 1996), per.

app. granted (January 6, 1997). The issue raised in Hill was argued before the Tennessee

Supreme Court during the month of April. However, no opinion has been forthcoming.

       The indictment in this case alleges in part that the defendant “on September 20,

1992, in Shelby County, Tennessee, and before the finding of this indictment, did

unlawfully and coercively, sexually penetrate Robin Shaw, in violation of T.C.A. 39-13-503,

against the peace and dignity of the State of Tennessee.”        The indictment tracks the

language of the statute proscribing the offense of rape. Tennessee Code Annotated § 39-

13-503(a) states in part: “Rape is the unlawful sexual penetration of a victim by the

defendant or the defendant by a victim accompanied by any of the following

circumstances: (1) Force or coercion is used to accomplish the act. . . .” The term

“coercion” as used in the statute is defined as a “threat of kidnapping, extortion, force or

violence to be performed immediately or in the future. . . .” Tenn. Code Ann. § 39-13-

501(1). The dictionary definition of the term “coerce” is “to restrain or dominate by force,”

“to compel to an act or choice,” and “to enforce or bring about by force or threat.”

Webster’s Ninth New Collegiate Dictionary (1984).

       The Tennessee Constitution requires an indictment or presentment to state “the

nature and cause of the accusation.” Tenn. Const. Art. I, § 9. The statutes of this

jurisdiction also govern the allegations which must be contained in an indictment. The

applicable statute, Tenn. Code Ann. § 40-13-202, states:


              The indictment must state the facts constituting the offense in

                                             8
              ordinary and concise language, without prolixity or repetition,
              in such a manner as to enable a person of common
              understanding to know what is intended, and with that degree
              of certainty which will enable the court, on conviction, to
              pronounce the proper judgment; and in no case are such
              words as “force and arms” or “contrary to the form of the
              statute” necessary.


The supreme court has said the constitution and statute require an indictment or

presentment to “contain a complete description of such facts and circumstances as will

constitute the crime.” Tipton v. State, 160 Tenn. 664, 670, 28 S.W.2d 635, 636 (1930)

(citations omitted).

       While the description of the offense contained in an indictment or presentment

“must be sufficient in distinctness, certainty and precision to enable the accused to know

what offense he is charged with and to understand the special nature of the charge he is

called upon to answer,” Church v. State, 206 Tenn. 336, 358, 333 S.W.2d 799, 809

(1960), it is not necessary to “amplify and encumber the charge by circumstantial detail

and minute description.” Jordan v. State, 156 Tenn. 509, 514, 3 S.W.2d 159, 160 (1928)

(citations omitted). As a general rule, it is sufficient to state the offense charged in the

words of the statute, State v. Overton, 193 Tenn. 171, 174, 245 S.W.2d 188, 189 (1951);

Stanfield v. State, 181 Tenn. 428, 432, 181 S.W.2d 617, 618 (1944); Jordan, 156 Tenn.

at 514, 3 S.W.2d at 160; State v. Tate, 912 S.W.2d 785, 789 (Tenn. Crim. App. 1995), or

words which are the equivalent to the words contained in the statute. Coke v. State, 208

Tenn. 248, 250-51, 345 S.W.2d 673, 674 (1961); Starks v. State, 66 Tenn. 64, 66 (1872).

See Tate, 912 S.W.2d at 789.

       A court must consider several factors when determining the sufficiency of an

indictment or presentment. As this court said in State v. Tate:


              [The court] must consider whether (a) the charging instrument
              contains the elements of the offense which is intended to be
              charged; (b) the charging instrument sufficiently apprises the
              accused of the offense he is called upon to defend; (c) the
              trial court knows to what offense it must apply the judgment;
              and (d) the accused knows with accuracy to what extent he
              may plead a former acquittal or conviction in a subsequent
              prosecution for the same offense.


912 S.W.2d at 789.



                                             9
       The Tennessee Criminal Sentencing Reform Act of 1989 does not require that an

indictment allege the mens rea or culpable mental state. See Tenn. Code Ann. §§ 39-11-

301 and -302. However, the State of Tennessee is required to prove the requisite

culpable mental state contained in the applicable statutes beyond a reasonable doubt.

Consequently, the failure to allege a culpable mental state or mens rea does not invalidate

an indictment which is otherwise valid.

       In this case, the allegations contained in the indictment track the language of the

applicable statute. Based on the decisions interpreting Article I, § 9 of the Tennessee

Constitution and Tenn. Code Ann. § 40-13-202, the allegations contained in the indictment

are sufficient and meet the criteria set forth in Tate.

       The indictment contains the elements of the offense of rape. The indictment

sufficiently apprises the defendant of the offense he was required to defend. The trial

court clearly knew the precise offense to apply the judgment to the verdict of the jury. If

indicted for a similar offense in the future, the defendant knows the precise extent he may

plead a former conviction.

       If an allegation of the culpable mental state was required, the use of the word

“coercively” is sufficient to establish the defendant’s conduct was knowing or intentional.

As previously stated, the statute defines the word “coerce” as a “threat of kidnapping,

extortion, force or violence to be performed immediately or in the future. . . .” Tenn. Code

Ann. § 39-13-501(1). The dictionary definition of “coerce” is “to restrain or dominate by

force,” “to compel to an act or choice,” and “to enforce or bring about by force or threat.”

Webster’s Ninth New Collegiate Dictionary (1984). Such conduct cannot be committed

unless it is intentional or knowing.

       This issue is without merit.




                                           _______________________________________
                                               JOE B. JONES, PRESIDING JUDGE




                                             10
CONCUR:



___________________________________
     DAVID H. WELLES, JUDGE



___________________________________
       JOE G. RILEY, JUDGE




                                 11
