        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs September 25, 2001

            STATE OF TENNESSEE v. TERRY JEROME THOMAS

                Direct Appeal from the Criminal Court for Hamilton County
                          No. 224967    Douglas A. Meyer, Judge



                                 No. E2001-00431-CCA-R3-CD
                                       October 10, 2001

Following a trial, a Hamilton County jury convicted the defendant of rape, and the trial court
sentenced him to ten years imprisonment. In this appeal, the defendant alleges (1) the evidence was
insufficient to sustain his conviction, and (2) his sentence was excessive. After a thorough review
of the record, we affirm the judgment of the trial court.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

JOE G. RILEY, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and ALAN E.
GLENN, JJ., joined.

Larry J. Campbell, Chattanooga, Tennessee, for the appellant, Terry Jerome Thomas.

Paul G. Summers, Attorney General and Reporter; Angele M. Gregory, Assistant Attorney General;
William H. Cox, III, District Attorney General; and Dean C. Ferraro, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                            OPINION

                                             FACTS

        The state’s proof revealed the following. On September 20, 1997, the victim and her
boyfriend, Joshua Santana, went to the home of Chris Smith, an acquaintance of Santana, where the
victim met the defendant for the first time. The victim and Santana left the residence and later had
sexual intercourse in the vehicle. Thereafter, Santana used a white shirt that was in the vehicle's
backseat to wipe off his ejaculation. Subsequently, they drove to Parkway Billiards. Santana phoned
Smith and requested Smith join them, and shortly thereafter Smith entered with the defendant.
While Santana played billiards, the victim talked with the defendant.
         At approximately 12:45 a.m., the victim and Santana left Parkway Billiards in her vehicle,
following Smith and the defendant. They began arguing concerning the victim's desire to return
home, and Santana suddenly exited the vehicle. In an effort to find him, the victim returned to the
street fronting Parkway Billiards where she saw the defendant. The defendant came over to her
vehicle; she informed him of the argument; and he got in the car. Then they stood outside her car
talking and smoking. The defendant subsequently began “making advances on [her].” When she
explained she was not interested, he continued and tried to kiss her. When she requested that they
go some place “more public,” the defendant pushed up her dress and tried to force apart her knees.
At that point, another vehicle came into view; the defendant backed away; and she attempted to flee.
The victim got into her car, but she was unable to lock the doors or raise her windows before the
defendant grabbed her ignition key.

        The defendant ordered her out of her vehicle, but she refused. The defendant stated, “[i]f you
want to take this public, we’ll go public,” and he ordered her to drive. While she was driving, the
defendant grabbed the steering wheel and placed his foot on the gas peddle, essentially driving from
the passenger seat. He guided the vehicle in an alley behind an abandoned building and stopped the
vehicle. The victim attempted to jump from the car, but the defendant grabbed her neck and said,
“[d]on’t make me break your neck.” The defendant forced her dress over her head, and the victim
stated, “[i]f you’re going to do this, please just use a condom.” The defendant inquired if she had
one, and she stated “no.” The defendant responded, “[w]ell, I guess you’re just s--t out of luck.”
Then, the defendant removed the victim’s underwear, performed cunnilingus on her, vaginally raped
her, and ejaculated on her face and chest, wiping himself with the same shirt Santana had used. The
defendant stated, “I can’t believe I just raped a woman.”

       The defendant instructed her to take him to a neighborhood, which she did. Then, she
proceeded approximately one block to a gas station that she knew officers frequented. There, she
met Officer Glen Scruggs who testified the victim was hysterical, crying, and shaking. She
explained to him that she had been raped by an individual known as “T-Money.” Officer Scruggs
transported the victim to the rape crisis center.

        Detective Larry Swafford, of the major crimes division, testified the victim was “near
hysteria” when he saw her. She provided him with the defendant’s general description, street name
“T-Money,” and first name “Terry.” Swafford further stated the victim’s vehicle was processed for
evidence. Later, Swafford procured a photograph of the defendant, and the victim identified this
photograph as depicting the person who raped her.

        Mildred Jeter, a sexual assault nurse with the rape crisis center, testified she detected no
physical injury to the victim, but further explained it was common for there to be no detectable injury
to a rape victim. After conducting tests, she identified the presence of semen on the victim’s chest
but none in her vaginal area. However, she submitted swabs to the TBI for more extensive testing.

        TBI Agent Sharon Jenkins testified she received DNA samples from Santana, the victim, and
the defendant, which she tested against samples collected by Jeter and law enforcement officers. She


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detected DNA from semen belonging to the defendant and Santana on both the shirt and vaginal
swab collected from the victim.


                            I. SUFFICIENCY OF THE EVIDENCE

A. Standard of Review

        When an accused challenges the sufficiency of the evidence, this court must review the
record to determine if the evidence adduced during the trial was sufficient "to support the findings
by the trier of fact of guilt beyond a reasonable doubt." Tenn. R. App. P. 13(e). This rule is
applicable to findings of guilt predicated upon direct evidence, circumstantial evidence or a
combination of direct and circumstantial evidence. State v. Brewer, 932 S.W.2d 1,18 (Tenn. Crim.
App.1996).

        In determining the sufficiency of the evidence, this court does not reweigh or reevaluate the
evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.1978). Nor may this court substitute its
inferences for those drawn by the trier of fact from circumstantial evidence. Liakas v. State, 199
Tenn. 298, 305, 286 S.W.2d 856, 859 (1956). To the contrary, this court is required to afford the
state the strongest legitimate view of the evidence contained in the record as well as all reasonable
and legitimate inferences which may be drawn from the evidence. State v. Tuttle, 914 S.W.2d 926,
932 (Tenn. Crim. App.1995).

        Because a verdict of guilt removes the presumption of innocence and replaces it with a
presumption of guilt, the accused has the burden in this court of illustrating why the evidence is
insufficient to support the verdict returned by the trier of fact. State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982).

B. Analysis

       The relevant statute defines rape as:

       [u]nlawful sexual penetration of a victim by the defendant or of the defendant by a
       victim accompanied by any of the following circumstances:

               (1) Force or coercion is used to accomplish the act; [or]

               (2) The sexual penetration is accomplished without the consent of the victim
       and the defendant knows or has reason to know at the time of the penetration that the
       victim did not consent.
       ....




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Tenn. Code Ann. § 39-13-503. Furthermore, “‘[f]orce’ means compulsion by the use of physical
power or violence and shall be broadly construed. . . .” Tenn. Code Ann. § 39-11-106(a)(12).

        The victim testified that the defendant forcibly penetrated her, holding her throat and
threatening to break her neck. The testimony of the victim alone is sufficient to convict a defendant
of rape. State v. McKnight, 900 S.W.2d 36, 48 (Tenn. Crim. App. 1994) (citing Montgomery v.
State, 556 S.W.2d 559, 560 (Tenn. Crim. App. 1977)). This issue is without merit.


                                        II. SENTENCING

        The range of punishment for rape, a Class B felony, as a Range I offender is not less than
eight years nor more than twelve years. See Tenn. Code Ann. § 40-35-112(a)(2). The defendant
contends his sentence was erroneously enhanced to ten years due to the trial court’s application of
sentencing enhancement factor (7) (the offense involved a victim and was committed to gratify the
defendant's desire for pleasure or excitement). See Tenn. Code Ann. § 40-35-114(7). We
respectfully disagree.

       This court’s review of the sentence imposed by the trial court is de novo with a presumption
of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption is conditioned upon an
affirmative showing in the record that the trial judge considered the sentencing principles and all
relevant facts and circumstances. State v. Pettus, 986 S.W.2d 540, 543 (Tenn. 1999).

        The trial court applied sentencing enhancement factors (1) (a previous history of criminal
convictions or criminal behavior in addition to those necessary to establish the appropriate range),
(7) (the offense involved a victim and was committed to gratify the defendant's desire for pleasure
or excitement), and (8) (the defendant has a previous history of unwillingness to comply with the
conditions of a sentence involving release in the community). See Tenn. Code Ann. § 40-35-
114(1),(7),(8). The trial court applied mitigating factor (13) (any other factor consistent with the
purposes of this chapter), regarding the defendant’s remorse and desire to take care of his child. See
Tenn. Code Ann. § 40-35-113(13).

       The presentence report reveals the defendant had prior convictions consisting of one felony
and at least five misdemeanors. Accordingly, the trial court properly applied factor (1).
Furthermore, defendant previously violated the conditions of his community service program for
misdemeanor theft. Accordingly, the trial court properly applied factor (8). The defendant does not
challenge these enhancement factors.

       However, the defendant challenges the application of enhancement factor (7). Our supreme
court has recently stated:

       [F]actor (7) may be applied with evidence including, but not limited to, sexually
       explicit remarks and overt sexual displays made by the defendant, such as fondling


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       or kissing a victim or otherwise behaving in a sexual manner, or remarks or behavior
       demonstrating the defendant’s enjoyment of the sheer violence of the rape.

State v. Arnett, 49 S.W.3d 250, 262 (Tenn. 2001). The victim testified the defendant made
“advances” toward her prior to the rape, including attempts to kiss her. Furthermore, the victim
testified the defendant stated he enjoyed her resistence during the rape. The trial court properly
applied this enhancement factor.

       We see no reason to disturb the sentence imposed by the trial court.


                                        CONCLUSION

       Based on the above analysis, we affirm the judgment of the trial court.


                                                     ___________________________________
                                                     JOE G. RILEY, JUDGE




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