      IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT NASHVILLE               FILED
                     DECEMBER 1997 SESSION
                                                      January 27, 1998

                                                     Cecil W. Crowson
                                                    Appellate Court Clerk

STATE OF TENNESSEE,            )
                               ) C.C.A. No. 01C01-9611-CC-00479
      Appellee,                )
                               ) Williamson County
V.                             )
                               ) Honorable Donald P. Harris, Judge
                               )
ALTON WALLER,                  ) (Rape of a Child)
                               )
      Appellant.               )




FOR THE APPELLANT:                FOR THE APPELLEE:

John H. Henderson                 John Knox Walkup
District Public Defender          Attorney General & Reporter
407 C Main Street
P.O. Box 68                       Janis L. Turner
Franklin, TN 37065-0068           Counsel for the State
                                  Criminal Justice Division
                                  450 James Robertson Parkway
                                  Nashville, TN 37243-0493

                                  Joseph D. Baugh
                                  District Attorney General

                                  Jeff P. Burks
                                  Assistant District Attorney General
                                  P.O. Box 937
                                  Franklin, TN 37065-0937




OPINION FILED: ___________________


AFFIRMED


PAUL G. SUMMERS,
Judge
                                   OPINION


       A Williamson County jury found the appellant, Alton Waller, guilty of the

rape of a child. On appeal, the appellant contends that the evidence of the

culpable mental state for the offense is insufficient to support the jury’s verdict.

After reviewing the evidence, we affirm the jury’s verdict.



       The victim testified that on June 12, 1995, she and some friends went to

Kelly Cunningham’s residence to watch a video. The appellant, who was twenty-

one years old and a friend of one of the victim’s friends, was among those

present. During the evening, various people left the living room where the video

was playing. Eventually the victim and the appellant were left alone on the

couch. The victim testified that she and the appellant went to one of the

bedrooms and had sexual intercourse. In a statement given to the police, the

appellant admitted that he had sexual intercourse with the victim. At the time of

the offense, the victim was twelve years old.



       On appeal, the appellant argues that the evidence of the culpable mental

state required for the offense is insufficient to support the jury’s verdict. When

an appellant challenges the sufficiency of the evidence, this Court must

determine whether, after viewing the evidence in a light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of

a crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979);

Tenn. R. App. P. 13(e); State v. Duncan, 698 S.W.2d 63 (Tenn. 1985). The

weight and credibility of a witness’ testimony are matters entrusted exclusively to

the jury as the triers of fact. State v. Sheffield, 676 S.W.2d 542 (Tenn. 1984);

Byrge v. State, 575 S.W.2d 292 (Tenn. Crim. App. 1978).         On appeal, the state

is entitled to both the strongest legitimate view of the evidence and all

reasonable inferences which may be drawn therefrom. State v. Cabbage, 571

S.W.2d 832 (Tenn. 1978). Moreover, guilty verdicts remove the presumption of

innocence, enjoyed by defendants at trial, and replace it with a presumption of

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guilt. State v. Grace, 493 S.W.2d 474 (Tenn. 1973). Appellants, therefore, carry

the burden of overcoming a presumption of guilt when appealing jury

convictions. Id.



       Pursuant to Tennessee Code Annotated § 39-13-522 (Supp. 1994), child

rape is defined as the unlawful sexual penetration of a victim by the defendant or

the defendant by the victim and the victim is less than thirteen (13) years of age.

The definition does not set forth the culpable mental state. The culpable mental

state of an offense is sufficiently established by either intent, knowledge or

recklessness if the definition of the offense does not plainly dispense with the

mental element. Tenn. Code Ann. § 39-11-301(c) (1991). Therefore, the

requisite mental state for the offense of rape of a child may be established by

evidence of intent, knowledge, or recklessness.



       ‘Knowing’ refers to a person who acts knowingly with respect to the
       conduct or to circumstances surrounding the conduct when the
       person is aware of the nature of the conduct or that the
       circumstances exist. A person acts knowingly with respect to a
       result of the person’s conduct when the person is aware that the
       conduct is reasonably certain to cause the result.

Tenn. Code Ann. § 39-11-106(20) (1991).



       ‘Reckless’ refers to a person who acts recklessly with respect to
       circumstances surrounding the conduct or the result of the conduct
       when the person is aware of but consciously disregards a
       substantial and unjustifiable risk that the circumstances exist or the
       result will occur. The risk must be of such a nature and degree that
       its disregard constitutes a gross deviation from the standard of care
       that an ordinary person would exercise under all the circumstances
       as viewed from the accused person’s standpoint.

Tenn. Code Ann. § 39-11-106(31) (1991).

       The state contends that the evidence of recklessness, if not knowledge, is

sufficient to support the jury’s verdict. We agree. Detective Ricky Hagan

testified that the appellant said that one of the victim’s friends had told the

appellant that the victim wanted the appellant to be her first. The appellant said

that he told the victim’s friend that he could not do it because the victim was too



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young. Detective Hagan testified that the appellant made these statements

during an interview but admitted that he, the detective, did not make these

statements part of the written statement signed by the appellant. The appellant

did not testify at trial.



        The appellant contends that the evidence establishes that Detective

Hagan was unaware that the appellant’s I.Q. was in the retarded range and that

the appellant had several other mental, emotional, or psychological problems.

An expert called by the defense testified about the appellant’s problems. The

jury has the duty of evaluating the weight of evidence and the credibility of

witnesses. Detective Hagan’s testimony that the appellant said that the victim

was too young is sufficient evidence of the culpable mental state required for

rape of a child to support the jury’s verdict.




                                                 __________________________
                                                 PAUL G. SUMMERS, Judge


CONCUR:




______________________________
JOSEPH B. JONES, Presiding Judge



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______________________________
WILLIAM M. BARKER, Judge




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