        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT NASHVILLE            FILED
                            MAY SESSION, 1998               June 17, 1998

                                                       Cecil W. Crowson
STATE OF TENNESSEE,               )                  Appellate Court Clerk
                                      C.C.A. NO. 01C01-9710-CC-00443
                                  )
      Appellee,                   )
                                  )
                                  )   DICKSON COUNTY
VS.                               )
                                  )   HON. ROBERT BURCH
DAVID WAYNE BATEMAN,              )   JUDGE
                                  )
      Appe llant.                 )   (Direct Appeal - Rape of a Child)




FOR THE APPELLANT:                    FOR THE APPELLEE:

CLIFFORD K. MCGOWN                    JOHN KNOX WALKUP
113 North Court Squ are               Attorney General and Reporter
Wa verly, TN 37185
                                      DEB ORA H A. T ULLIS
SHIPP R. WEEMS                        Assistant Attorney General
District Public Defender              425 Fifth Avenu e North
CAREY THOMPSON                        Nashville, TN 37243
Assistant Dist. Public Defender
P. O. Box 160                         DAN ALSOBROOKS
Charlotte, TN 37036-0160              District Attorney General

                                      ROBERT WILSON
                                      Assistant District Attorney
                                      P. O. Box 580
                                      Charlotte, TN 37036



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                                 OPINION


      A Dickson Co unty jury convicted A ppellant, David W ayne Bateman, of rape

of a child. After a sentencing hearing where the court did not find any mitigating

factors and found tw o enha ncing fac tors, the trial co urt sente nced A ppellant to

twenty-five years incarceration in the Tennessee Department of Correction to be

served at 100% pursuant to Tennessee Code Annotated § 40-35-50 1(I)(1) &(2).

In additio n, the tria l court fo und A ppellant guilty of criminal contempt for an

obscene outburst at the sentencing h earing, and se ntenced him to serve ten days

consecu tive to his other sentence.                       In this appeal Appellant maintains the

evidence of his guilt is insufficient and that his sentence is excessive.



      After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.



                                                      FACTS




      At the time of the offense, Appellant was living with his uncle, Allen Brown,

along with Mr. Br own’s fam ily. On Ma y 4, 1996 , the Brow ns aske d Appe llant to

babys it their two children, ages eight and three.1 Appellant confessed that on that

evening, he penetra ted the three year old female’s anus with his penis and

inserted his fingers into her vagina.



      On June 12, 1996, the three year old was examined by Dr. Jeff Gordon. At

trial, Dr. Gordon qualified as an exp ert and testified that he determined the ch ild’s



      1
          It is policy of this C ourt to pro tect the iden tity of the child victim s of sex ual assa ult.

                                                         -2-
hymen was intact and her vaginal area normal. He further testified that he found

deep bruising in the child’s anus which circled the rectal opening. He opined that

this bruising w as the re sult of a circular, firm object penetrating the child’s rectum.

He testified that such injury was c onsisten t with the wou nds on e would expect to

see in a child who has been sodomized.



                                    I. Sufficiency




       Appellant challenges the sufficiency of the convicting evidence. When an

appe llant challe nges the su fficienc y of the e videnc e, this C ourt is o bliged to

review that challenge a ccording to ce rtain well-settled principles. A verdict of

guilty by the jury, approved by the trial judge, a ccredits 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). Although an accused is originally cloaked with a

presumption of innocence, a jury verdict removes this presumption and replaces

it with one of guilt. State v. Tug gle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence,

on appeal, the burden of proof rests with Appellant to demonstrate the

insufficiency of the conv icting evide nce. Id. On a ppea l, “the [S ]tate is entitled to

the strong est leg itimate view of the evidence as well as all reasonable and

legitimate inference s that ma y be draw n therefro m.” Id. (citing State v. Cabbage,

571 S.W .2d 832, 835 (Tenn. 197 8)). Wh ere the sufficiency of the evidence is

contested on appea l, the relevant question for the reviewing cou rt is whether any

rational trier of fact could have found the accused guilty of every element of the

offense beyond a reasonable doub t. Harris , 839 S.W .2d 54, 75 ; Jackson v.

Virgin ia, 443 U .S. 307, 3 19, 99 S .Ct. 2781 , 2789, 61 L.Ed.2d 560 (19 79). In

                                           -3-
conducting our evalua tion of th e con victing e videnc e, this C ourt is precluded from

reweighing or recon sidering th e eviden ce. State v. Morgan, 929 S.W.2d 380, 383

(Tenn . Crim. A pp. 199 6); State v. Mathews, 805 S.W.2d 776, 779 (Tenn. Crim.

App. 1990). Moreover, this Court may not subs titute its own inferences “for those

drawn by the trier of fact from circum stantial evidence.” Id. at 779 . Finally , the

Tennessee Rules of Appellate Procedure, Rule 13(e) provides, “finding s of gu ilt

in criminal actions whether by the trial court or jury shall be set aside if the

evidence is insufficient to suppo rt the find ings by the trier of fact beyond a

reasonab le doubt.” See also State v. Mathews, 805 S.W.2d at 780.



       Upon this record, we find ample evidence for the jury to have found

Appe llant guilty of the crime a s charg ed. Th is issue ha s no m erit.



                                   II. Sentencing




       Appellant also challenges the length of the sentence imposed by the trial

court. When a defendant complains of his or her s entenc e, we m ust cond uct a

de novo review with a presumption of correctness. Tenn. Code Ann. § 40-35-

401(d). The burden of showing that the sentence is improper is upon the

appealing party. Tenn. Code Ann. § 40-35-401(d) Sentencing Commission

Comments. This pre sump tion, howe ver, is cond itioned up on an a ffirmative

showing in the record that the trial court considered the sentencing principles and

all the releva nt facts an d circum stance s. State v. Ashby, 823 S.W.2d 166, 169

(Tenn. 19 91).




                                          -4-
      The Sentencing Reform Act of 1989 established specific procedures which

must be followed in sentencing. These procedures, codified at Tenn. Code Ann.

§ 40-35-210, mandated the court’s consideration of the following:

      (1) The evidence, if any, received at the trial and the
      sentencing hearing; (2) [t]he presentence report; (3) [t]he
      principles of senten cing and argum ents as to sentencing
      alternatives; (4) [t]he nature and characteristics of the
      criminal conduct involved ; (5) [e]vidence and information
      offered by the parties on the enhancement and mitigating
      factors in §§ 40-35-113 and 40-35-114; and (6) [a]ny
      statement the de fenda nt wish es to m ake in his own b ehalf
      about sentencing.


Tenn. Code Ann. § 40-35-210.



      The Sentencing Reform Act also provides that the mid-range sentence

within the range is the presumptive sentence for this offense. The court must

begin w ith the mid-range sentence and enha nce th at sen tence to app ropria tely

reflect any statutory enhancement factors that the court finds to be present. After

enhancing the sentence, the court must reduce the sentence appropriate to the

weight of any m itigating facto rs that the c ourt finds. T he weig ht to be given each

factor is left to the discretion of the trial judge. State v. Shelton, 854 S.W.2d 116,

123 (Ten n. Crim. App . 1992).



      The Sentencing Reform Act also provides that the trial court shall place on

the record eithe r orally o r in writing what e nhan cem ent or m itigating factors it

found, if any. These finding s are crucial for review o f the trial court’s decision

upon appe al.




                                          -5-
       In the matter sub judice, Appellant contends that the trial court erred in not

considering the mitigating factor of Appellant’s youth in determining his sentence,

and in considering the two enhancement factors of particular vulnerability of the

victim due to age , and o f Appe llant’s abuse of a private position of trust. We do

not agree. Nothing in the rec ord dem onstra tes tha t Appe llant’s yo uth ca used him

to be unaware of the potentially devastating consequences of his actions.

Further, it is apparent that the child’s te nder ag e served to mak e her p articula rly

vulner able to this typ e of offe nse in that sh e cou ld not re sist Ap pellan t, nor co uld

she easily articulate what had oc curred to her. See , State v. Poo le, 945 S.W.2d

93, 96 (Te nn. 199 7). Furthe r, from the testimon y presen ted at trial, and from

Appellant’s own statement, it is obvious that Appellant abused the position of

trust placed in him as a member of the victim’s household in order to accomplish

this crime . This issu e is withou t merit.



       Accordingly, the judgment of the trial court is affirmed.



                                     ____________________________________
                                     JERRY L. SMITH, JUDGE


CONCUR:



___________________________________
GARY R. WADE, PRESIDING JUDGE


___________________________________
DAVID G. HAYES, JUDGE




                                              -6-
