     IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                          AT NASHVILLE               FILED
                         MAY 1997 SESSION
                                                    September 19, 1997

                                                    Cecil W. Crowson
                                                   Appellate Court Clerk
                              )
STATE OF TENNESSEE,           )
                              ) C.C.A. No. 01C01-9608-CR-00341
     Appellee,                )
                              ) Davidson County
V.                            )
                              ) Honorable Seth Norman, Judge
                              )
TYRONE W. VANLIER, SR.,       ) (Rape of a Child--Two Counts)
                              )
     Appellant.               )




FOR THE APPELLANT:               FOR THE APPELLEE:

Roger K. Smith                   Charles W. Burson
Attorney at Law                  Attorney General & Reporter
Suite 115
104 Woodmont Boulevard           Peter M. Coughlan
Nashville, TN 37205              Assistant Attorney General
                                 450 James Robertson Parkway
                                 Nashville, TN 37243-0493

                                 Victor S. Johnson III
                                 District Attorney General

                                 Lila Statom
                                 Assistant District Attorney General
                                 Washington Square, Suite 500
                                 222-2nd Avenue North
                                 Nashville, TN 37201-1649




OPINION FILED: ___________________


CONVICTIONS AFFIRMED;
RESENTENCING ORDERED AS TO
CONSECUTIVE SENTENCES


PAUL G. SUMMERS,
Judge




                             OPINION
       The appellant, Tyrone W. Vanlier, Sr., was convicted by a jury of two

counts of rape of a child. He was sentenced to twenty-one years for each count

with the sentences to be served consecutively. On appeal, the appellant

presents three issues for our review: (1) whether the evidence was sufficient to

support the jury verdict of guilt beyond a reasonable doubt; (2) whether the trial

court properly applied Tenn. Code Ann. §§ 40-35-114(5), (6), (7), and (9) (Supp.

1993) as enhancement factors; and (3) whether the trial court properly imposed

consecutive sentences pursuant to Tenn. Code Ann. § 40-35-115(b)(5) (1990).

We affirm the appellant’s convictions and remand for resentencing as to the

issue of consecutive sentences.



       The appellant and the victim’s mother had a long-term relationship, which

included the birth of a son. The appellant, who had lived in the home with the

victim intermittently for several years, was convicted of raping the victim anally

and vaginally in a single episode that occurred in June 1993.



       First, the appellant challenges the sufficiency of the evidence. He

contends that the evidence is insufficient to show penetration, which is one of the

elements of the crime. The state argues that there is ample evidence that the

appellant raped the victim anally and vaginally. The state maintains that the

tears in the victim’s rectum and vagina, as well as the semen found in both

areas, indicate penetration.



       Great weight is accorded jury verdicts in criminal trials. Jury verdicts

accredit the state’s witnesses and resolve all evidentiary conflicts in the state’s

favor. State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983); State v. Banes, 874

S.W.2d 73, 78 (Tenn. Crim. App. 1993). 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).



                                         -2-
Moreover, guilty verdicts remove the presumption of innocence, enjoyed by

defendants at trial, and replace it with a presumption of 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.



       When appellants challenge 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).



       Upon listening to the testimony at trial, viewing the witness’ demeanor,

and considering the witness’ testimony in light of all the facts in the case, the jury

chose to accredit the state’s witnesses. Assessing the credibility of witnesses is

the purview of the jury. State v. Banes, 874 S.W.2d 73, 78 (Tenn. Crim. App.

1993). Accordingly, after reviewing the evidence in a light most favorable to the

state, we conclude that the record supports the appellant’s convictions.



       Second, the appellant challenges the trial court’s use of the following four

enhancement factors: Tenn. Code Ann. §§ 40-35-114(5), (6), (7), and (9) (Supp.

1993). The appellant first argues that Tenn. Code Ann. § 40-35-114(5) was

improperly applied to enhance his sentence. This statute states: “The defendant

treated or allowed a victim to be treated with exceptional cruelty during the

commission of the offense.” The state argues that this factor applies because

the victim suffered tears to her vaginal and anal areas and suffered emotional

trauma.




                                         -3-
         The appellant argues that in order for the enhancement factor of

“exceptional cruelty” to apply, something extra, over and above the injuries

suffered as a result of the attack, must be present. The appellant cites two

cases in support of his argument: State v. Holland, 860 S.W.2d 53 (Tenn. Crim.

App. 1993) and State v. Davis, 825 S.W.2d 109 (Tenn. Crim. App. 1991). In

Holland, the victim was “beaten and bruised all over her body.” Holland, 860

S.W.2d at 61, n.18. Also, in Davis, the rape victim was forced to disrobe and to

be bound; and the defendant urinated in the victim’s mouth. Davis, 825 S.W.2d

at 113. The appellant contends that such cruelty was not present in this case,

and therefore, this enhancement factor should not have been applied.



         We agree with the appellant that his sentence should not have been

enhanced based upon Tenn. Code Ann. § 40-35-114(5). We do not question the

injuries suffered by the victim. However, such injuries are consistent with those

flowing from the crime itself. Legally, they do not warrant enhancing the

appellant’s sentence under Tenn. Code Ann. § 40-35-114(5).



         Next, the appellant challenges the trial court’s use of Tenn. Code Ann.

§ 40-35-114(6): “The personal injuries inflicted upon . . . the victim [were]

particularly great.”   The state argues that the damage to the victim’s mental

health makes this enhancement factor applicable. The appellant, however,

contends that any damage to the victim’s mental health does not rise to the level

of a “particularly great” injury, citing State v. Jones, 883 S.W.2d 597 (Tenn.

1994).



         In Jones, our Supreme Court stated that the following conditions “satisfy

the definition of a ‘particularly great’ injury:” “substantial risk of death,” “protracted

unconsciousness,” “extreme physical pain,” “protracted or obvious

disfigurement,” and “protracted loss or substantial impairment of a function of a

bodily member, organ, or mental faculty.” Jones, 883 S.W.2d at 602.



                                           -4-
       The evidence indicated that the victim attended several therapy sessions

before stopping them approximately eleven months after the offense. Although

there was some testimony about future repercussions to the victim, there was no

evidence that her injuries arose to the criteria as defined by our Supreme Court.

Therefore, we agree with the appellant that Tenn. Code Ann. § 40-35-114(6)

was improperly applied to enhance his sentence.



       Next, the appellant challenges the trial court’s use of Tenn. Code Ann.

§ 40-35-114(7): “The offense involved a victim and was committed to gratify the

defendant’s desire for pleasure or excitement.” The state maintains that the

appellant acted to gratify his desire for sexual pleasure.



       The appellant argues that “the state did not prove or argue the

defendant’s motive concerning this enhancement factor” and that “the trial court

did not find that a motive for the defendant in committing the offenses was to

gratify the defendant’s desire for pleasure or excitement.” In support of his

argument, the appellant in his brief cites State v. Kissinger, 922 S.W.2d 482

(Tenn. 1996) and State v. Harris, 866 S.W.2d 583 (Tenn. Crim. App. 1992).



       In Kissinger, our Supreme Court considered the issue of whether an

orgasm was sufficient proof that an offense was committed to satisfy a

defendant’s desire for pleasure or excitement. The court observed:



       The essence of factor (7) is the legislative determination
       that those who are motivated to commit a crime to gratify
       their own desire for pleasure or excitement should be
       punished more severely than those who are not. The focus
       is the offender’s motive, not the eventual result.

          . . . That orgasm did or did not occur is simply one factor
       a court may consider in determining whether the offender
       committed the offense to gratify the offender’s desire for
       pleasure or excitement. That an offender experienced
       orgasm does not in and of itself prove the existence of
       the factor. Likewise, that orgasm did not occur does not
       necessarily negate the finding.



                                         -5-
Kissinger, 922 S.W.2d at 490-91. In Harris, this Court observed that “the

sentencing court must scrutinize this enhancement factor very closely before

applying it in cases of rape. Common sense would dictate that an enhancement

factor which is normally present in a certain type of crime should not carry much

weight in and of itself.” Harris, 866 S.W.2d at 588.



       The appellant’s own testimony regarding the victim and how he thought

that something might occur the night of the rape support the state’s argument

that the appellant acted to gratify his desire for pleasure or excitement.

Therefore, we agree with the state that Tenn. Code Ann. § 40-35-114(7) was

properly applied to enhance the appellant’s sentence.



       Finally, the appellant challenges the trial court’s use of Tenn. Code Ann.

§ 40-35-114(9): “The defendant possessed or employed a firearm, explosive

device or other deadly weapon during the commission of the offense.” During

the appellant’s testimony, he denied using a knife; but the victim testified that the

appellant used a knife during the commission of the crime.



       Upon listening to the testimony at trial, viewing the witness’ demeanor,

and considering the witness’ testimony in light of all the facts in the case, the jury

chose to believe the victim. We, therefore, conclude that the trial court properly

applied Tenn. Code Ann. § 40-35-114(9) to enhance the appellant’s sentence.



       Thus, after considering the range of punishment of fifteen to twenty-five

years for each offense, we conclude that the enhancement factors applied in this

case warrant the trial court’s assessment of twenty-one years.



       Third, the appellant challenges the trial court’s imposition of consecutive

sentences. He argues that his aggregate maximum sentence is not reasonably

related to the severity of the offenses. The state maintains that the appellant’s



                                         -6-
sentence is reasonably related to the severity of the offenses and that

consecutive sentencing is warranted to protect the public.



        When an appellant challenges the length, range, or manner of service of a

sentence, this Court conducts a de novo review with a presumption that the

determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-

401(d) (1990). However, this presumption is conditioned on an affirmative

indication 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).



        The appellant received consecutive sentences pursuant to Tenn. Code

Ann. § 40-35-115(b)(5) (1990) which provides that the court may order

consecutive sentencing if the appellant “is convicted of two (2) or more statutory

offenses involving sexual abuse of a minor with consideration of the aggravating

circumstances arising from the relationship between the defendant and the

victim . . ..”   The state argues that because the victim in this case was raped

vaginally and anally in a single episode, which the state argues is two offenses,

consecutive sentencing under Tenn. Code Ann. § 40-35-115(b)(5) is warranted.

Also, the state argues under State v. Wilkerson, 905 S.W.2d 933 (Tenn. 1995),

that the appellant’s aggregate sentence is reasonably related to the severity of

the crimes involved.



        Under Tenn. Code Ann. § 40-35-115(b)(5), consecutive sentencing is not

mandatory.       As the appellant noted in his brief, this statute codifies the

decisions in two Tennessee Supreme Court cases: State v. Taylor, 739 S.W.2d

227 (Tenn. 1987) and Gray v. State, 538 S.W.2d 391 (Tenn. 1976). The court

in Taylor held “that consecutive sentences should not routinely be imposed in

sexual abuse cases . . . and that the aggregate maximum of consecutive terms

must be reasonably related to the severity of the offenses involved.”        Taylor,



                                            -7-
739 S.W.2d at 230. The appellant also notes that in Taylor the trial court

sentenced the defendant in that case to twenty-four years out of a possible forty

years on each count, to be served consecutively, and the appellant in that case

was eligible for parole after service of thirty percent of his sentence. The

appellant in this case received a sentence of twenty-one years out of a possible

twenty-five years for each offense and was ordered to serve his sentences

consecutively. This appellant is not eligible for parole because Tenn. Code Ann.

§ 39-13-523 (Supp. 1993) requires him to serve the entire sentence imposed by

the court.



         When the trial court sentences a defendant, the judge must place on the

record findings of fact that support the decision as to punishment. This

procedure applies to enhancing and mitigating factors as well as to concurrent or

consecutive sentences for multiple offenses. Tenn. Code Ann. § 40-35-210(f).

The court shall place on the record why consecutive sentences are imposed in

light of the foregoing cases and statutes. We respectfully submit that as to the

issue of concurrent or consecutive sentencing, the trial court did not record such

findings. This Court cannot properly review this issue with the record before us.

Therefore, we must remand for resentencing as to the consecutive sentencing

issue.



         We affirm the appellant’s convictions. As to consecutive or concurrent

sentences, we remand for resentencing with appropriate findings of fact.




                                         -8-
                                       ______________________________
                                       PAUL G. SUMMERS, Judge


CONCUR:




______________________________
DAVID G. HAYES, Judge




______________________________
JERRY L. SMITH, Judge




                                 -9-
