         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                            Assigned on Briefs October 27, 2004

               STATE OF TENNESSEE v. PHILLIP AARON YORK

                  Direct Appeal from the Criminal Court for Cocke County
                           No. 8487    Ben W. Hooper, II, Judge



                    No. E2003-02883-CCA-R3-CD - Filed February 3, 2005


The defendant, Phillip Aaron York, was convicted of eight counts of child rape. Sentences of
twenty-five years were imposed for each conviction. Two convictions were ordered to run
consecutively, with the remaining convictions to run concurrently, for a total effective sentence of
fifty years to be served in the Department of Correction. On appeal, the defendant challenges (1) the
sufficiency of the evidence, and (2) the length of the sentence imposed by the trial court. Upon
review of the record and applicable law, we conclude that the evidence is sufficient to sustain the
convictions for rape of a child, but that pursuant to Blakely v. Washington, 542 U.S. ----, 124 S. Ct.
2531 (2004), enhancement factors (2) and (16) cannot be applied. Accordingly, we affirm the
convictions, but modify the sentence imposed from a fifty-year effective sentence to a forty-year
effective sentence.

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

J.C. MCLIN , J., delivered the opinion of the court, in which JERRY L. SMITH and ALAN E. GLENN ,
JJ., joined.

Edward C. Miller, District Public Defender, Dandridge, Tennessee, for the appellant, Phillip Aaron
York.

Paul G. Summers, Attorney General and Reporter; Jennifer Bledsoe, Assistant Attorney General;
Al Schmutzer, Jr., District Attorney General; and James B. Dunn, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

                                              FACTS

        The defendant’s convictions of child rape stem from four years of sexual intercourse with
the victim. Although the indictment charged the defendant with eighteen counts of child rape, the
trial court granted in part the defendant’s motion for judgment of acquittal, allowing the jury to
consider only the offenses alleged to have occurred on October 31, 1998, February, 22, 2001, May
21, 24, 25, 27, 29 of 2001, and June 2, 2001.

       The victim was fourteen years old at the time of trial.1 She testified that she was born on
September 7, 1989, and that the defendant was her mother’s boyfriend who lived with her and her
mother for approximately nine years. During direct examination, the prosecutor asked, “[D]id this
defendant do something to you.” The victim responded, “[Y]es, . . . [h]e raped me.” Asked if she
was raped more than once, the victim said, “[y]es.” The victim also testified that the defendant
would “sometimes” use a condom during these rapes though she could not remember when or how
many times a condom was used. In addition, the trial court asked the victim, “did [the defendant]
have sexual intercourse with you?”, and she responded “[y]es.”

        The victim testified that she was first raped by the defendant on October 31, 1998. The rape
occurred in the defendant’s camper located behind a local market place. She remembered the date
because it was Halloween and she later hurt herself falling in the shower after the rape. As to the
details of the rape, the victim stated that it occurred in the bedroom of the camper where the
defendant instructed her to lie on the bed, then took off her clothes, got on top of her, and raped her.
The victim testified that the defendant ejaculated during the rape, and told her that she would be “in
serious trouble” if she told anyone.

        The victim told the jury that she had been raped “eighteen” times. She testified that she was
raped at the trailer for the second time on February 22, 2001. When questioned how she remembered
this specific date, she responded, “[m]y mother was gone to the movies” to see “What Women
Want.” Asked if she could remember the last time she was raped, the victim answered, “June the
2nd,” of 2001. In response to the question, “[d]id the defendant put anything in your mouth?”, she
said, “[h]is penis.”

       Next, the victim was asked if she could give “[the jury] some dates and times of other
occasions when this occurred.” The victim stated that she was raped “[t]wo weeks after [her] sister’s
birthday, two Fridays after . . . [on] March 19.” When questioned “how many times did [rape] occur
in March?”, she responded, “about six.” At this time, the trial court interjected and asked, “what
year?” The victim answered, “2001.” The victim also testified that she was frightened of the
defendant. As a result, the rapes continued for four years before the victim told her mother.

        On cross-examination, the victim identified more dates when she was raped by the defendant.
She said she was raped on “5/21/01,” but could not remember where the rape occurred. She also said
she was raped at the trailer on “5/24/01" and “5/25/01." However, when asked, “[d]o you remember
what you were wearing on [either] occasion,” the victim stated that she could not remember, but did
recall that the defendant took her clothes off, and raped her in the bedroom of the trailer. When


         1
            W hile testifying, the victim gave short responses to questions, and for that reason, we have set out certain
facts in a question and response format.

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questioned “when it happened again?”, she responded, “[t]he 27th . . . and “29th . . . of May.” The
victim then admitted “[remembering] some of [the rapes] but not all of them,” and having to refer
to her notes to refresh her memory.

       Detective Robert Caldwell of the Cocke County Sheriff's Department testified that he first
became involved in the investigation when he was assigned to question the defendant on June 6,
2001. After advising the defendant of his miranda rights, Caldwell asked the defendant if he wished
to make a statement. Caldwell stated the defendant acknowledged that he understood his rights,
voluntarily signed the written Miranda waiver of rights form, and confessed to having sexual
intercourse with the victim. The confession was then transcribed by Caldwell, signed by the
defendant, and witnessed by Caldwell and Detective Bryan Murr. The confession, admitted into
evidence and read to the jury by Caldwell, states:

                        I have been living with [the victim’s mother] for about nine
               years. When [the victim’s mother] and me got together we had a little
               . . . she had a little girl, [the victim], about two years old. [The
               victim’s mother] also had a little girl, . . . , who was two months old.
               [The victim’s mother] and I now have a little girl, . . . , who’s age
               three.
                        About four years ago I started having sex with [the victim].
               I can’t remember exactly how it started but I have never made [the
               victim] do anything she did not want to do. After the first few times,
               [the victim] started liking having sex with me. Sometimes I would
               perform oral sex on [the victim], sometimes she would perform oral
               sex on me.
                        I would say that I have had sex with [the victim] hundreds of
               times over the past four years. The sex would always be at my home
               or in my storage building at [address]. I always told [the victim] not
               to tell anybody, that we would get into trouble. I did not threaten to
               hurt [the victim]. I would always have [the victim] by herself when
               I would have sex with her.
                        The last time I had sex with [the victim] was this past week.
               I think it was Saturday, June 2nd, 2001. I think before the June 2nd
               incident it was about three or four days earlier that we had sex. I did
               not intend to hurt [the victim]. I love her very much. When I had .
               . . Excuse me. When I had sex with [the victim] this past Saturday
               we were in mine and [the victim’s mother’s] bed.
                        I wish I could do this over. This would never have happened.
               I started going to church about two years ago trying to get over this
               thing with [the victim]. I got out of the church about three months
               ago. Earlier this morning I had a .38 revolver and was thinking of
               killing myself over this thing with [the victim].



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                         This is a true statement to the best of my ability and I’ve given
                this statement because I want to cooperate and help [the victim] . . .
                . Signed Phillip York and witnessed by [Robert Caldwell] and Bryan
                Murr.

 On cross-examination, Caldwell acknowledged that there existed an inconsistency in the number of
 times the defendant claimed to have had sex with the victim and the number of times the victim
 claimed the rapes occurred.

         At the close of the State’s case in-chief, the defendant moved for judgment of acquittal as to
 certain counts of the indictment. After reviewing the evidence, the trial court concluded that the
 State had proven only eight counts of child rape, and granted the defendant’s motion as to the
 remaining ten counts. The trial court instructed the jury that the State would seek conviction for only
 eight counts of the indictment. The jury found the defendant guilty on all eight counts of child rape
 (counts one, five, nine, ten, eleven, twelve, thirteen, and sixteen).

                                              ANALYSIS

                                  I. Sufficiency Of The Evidence

        The defendant first argues that the evidence was insufficient to support his eight convictions
for rape of a child. Specifically, he contends that the victim testified to only one occasion that would
constitute rape of a child; whereas, on all other occasions the victim simply testified that the
defendant “raped her.” The defendant submits that this evidence was insufficient to establish beyond
a reasonable doubt that the defendant raped the victim eight times. We respectfully disagree.

         When the sufficiency of the evidence is challenged on appeal, the standard of review is
whether, considering the evidence in favor of the State, any reasonable trier of fact could have found
all the essential elements of the crime beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson
v. Virginia, 443 U.S. 307, 319 (1979); State v. Evans, 108 S.W.3d 231, 236 (Tenn. 2003). Once a
jury finds the defendant guilty, his or her presumption of innocence is removed and replaced with a
presumption of guilt. State v. Black, 815 S.W.2d 166, 175 (Tenn. 1991). As a result, the convicted
defendant has the burden of demonstrating to this Court why the evidence will not support the jury’s
verdict. State v. Carruthers, 35 S.W.3d 516, 557–58 (Tenn. 2000); State v. Tuggle, 639 S.W.2d 913,
914 (Tenn. 1982). In contrast, the State is entitled to the strongest legitimate view of the evidence
along with all reasonable inferences which may be drawn from that evidence. Id. The jury verdict
approved by the trial judge accredits the State’s witnesses and resolves all conflicts in favor of the
State. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992); State v. Sheffield, 676 S.W.2d 542, 547
(Tenn. 1984). Questions concerning the credibility of the witnesses, conflicts in trial testimony, the
weight and value to be given the evidence, and all factual issues raised by the evidence are resolved
by the trier of fact and not this Court. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). We do not
attempt to re-weigh or re-evaluate the evidence, nor do we substitute our inferences drawn from the
circumstantial evidence for those drawn by the trier of fact. State v. Elkins, 102 S.W.3d 581, 582


                                                  -4-
(Tenn. 2003); State v. Reid, 91 S.W.3d 247, 277 (Tenn. 2002); State v. Bland, 958 S.W.2d 651, 659
(Tenn. 1997).

        Rape of a child is defined as "the unlawful sexual penetration of a victim by the defendant or
the defendant by a victim, if such victim is less than thirteen (13) years of age." Tenn. Code Ann. §
39-13-522(a) (2003). Sexual penetration is defined as "sexual intercourse, cunnilingus, fellatio, anal
intercourse, or any other intrusion, however slight, of any part of a person's body or of any object into
the genital or anal openings of the victim's, the defendant's, or any other person's body, but emission
of semen is not required." Tenn. Code Ann. § 39-13-501(7). Therefore, the State was required to
prove beyond a reasonable doubt that the victim was less than thirteen years of age and that the
defendant intentionally, knowingly, or recklessly engaged in sexual penetration of the victim on the
eight occasions set out in the indictment.

        Viewing the evidence in the light most favorable to the State, the evidence is sufficient to
establish beyond a reasonable doubt that the defendant sexually penetrated the victim on eight
occasions. The victim was fourteen years old at the time of trial, and by its verdict, the jury obviously
found that her use of the word “rape” encompassed the statutory definition of child rape. Likewise,
the victim’s testimony regarding the defendant’s actions is consistent with the statutory definition of
child rape as “sexual penetration.” During her testimony, the victim stated that the defendant put his
penis in her mouth. The victim also responded affirmatively when asked by the trial judge if the
defendant had “sexual intercourse” with her.

        Additionally, the evidence is sufficient to establish beyond a reasonable doubt that the victim
was raped eight times as a child over a three year period. The victim testified that she was born in
1989 and was first raped on October 31, 1998. She remembered the date because it was Halloween
and she had hurt herself in the shower sometime after the rape. She stated that the second rape
occurred on February 22, 2001, while her mother was out watching a movie. She then told the jury
that she was raped on May 21, 24, 25, 27, and 29 of 2001. The victim testified that the last rape
occurred on June 2, 2001. Thus, each date the victim testified to corresponded with a date set out in
the indictment. We also note that the defendant’s written confession stated that he had sex with the
victim “hundreds of times over the past four years.” Moreover, his statements relating to oral sex
with the victim, the locations where the sex occurred, and the last time the defendant had sex with
the victim further corroborated the victim’s testimony regarding the rapes. The jury heard the
victim’s testimony and the defendant’s admissions and found the defendant guilty of all eight counts.
Therefore, we conclude that a rational jury could have found beyond a reasonable doubt that the
defendant committed the eight counts of child rape on the dates set out in the indictment, and the
issue is without merit.

                                            II. Sentencing

        The defendant also argues that his sentences are excessive because, in his view, the trial court
improperly applied enhancement factor (2) under Tenn. Code Ann. § 40-35-114(2), and failed to
properly consider mitigating factor (1) under Tenn. Code Ann. § 40-35-113(1). Although the


                                                  -5-
defendant did not challenge the trial court’s application of enhancement factor (16) concerning the
abuse of a position of private trust, we address the issue in light of Blakely v. Washington.

        At the sentencing hearing, the trial court enhanced the defendant’s sentence after applying
enhancement factors (2), that the defendant had “a previous history of criminal convictions or
criminal behavior in addition to those necessary to establish the appropriate range,” and (16), that the
defendant abused a position of private trust. Tenn. Code Ann. §§ 40-35-114(2) & (16). The trial
court gave considerable weight to both enhancement factors. As to the application of enhancement
factor (2), the trial court relied on the defendant’s written confession read into the record by Detective
Caldwell. Specifically, the defendant’s statement that he had “sex with [the victim] hundreds of times
over the past four years.” As to the application of enhancement factor (16), the trial court found that
the defendant lived with the victim and her family for nine years, and stood as a “father figure” in the
home. Therefore, the defendant abused this position of private trust when committing the rapes. As
to the application of mitigating factors, the trial court found mitigating factor (8), that the defendant
suffered from a mental condition that significantly reduced his culpability for the offense, carried
“very little to no weight,” and found no other applicable mitigating factors. See Tenn. Code Ann. §
40-35-113. The trial court ordered counts five, nine, ten, eleven, twelve, thirteen, and sixteen to run
concurrent with each other, but consecutive to count one, for a total effective sentence of fifty years
to be served in the Department of Correction.

         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 of correctness is conditioned
upon the affirmative showing in the record that the trial court considered the sentencing guidelines
and all relevant facts and circumstances. State v. Pettus, 986 S.W.2d 540, 543-44 (Tenn. 1999); State
v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If the trial court fails to consider the statutory
sentencing guidelines, there is no presumption of correctness and review is de novo. State v. Poole,
945 S.W.2d 93, 96 (Tenn. 1997). The appealing party has the burden of showing that the sentence
is improper. Tenn. Code Ann. § 40-35-401(d) (Sentencing Commission Comments).

        In order to conduct a proper de novo review of the sentence, this Court must consider (a) any
evidence received at the trial and/or sentencing hearing; (b) the presentence report; (c) the principles
of sentencing; (d) the arguments of counsel relative to sentencing alternatives; (e) the nature and
characteristics of the offense; (f) any mitigating or enhancement factors; (g) any statements made by
the defendant in his or her own behalf; and (h) the defendant’s potential or lack of potential for
rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-103, -210; State v. Taylor, 63 S.W.3d 400,
411 (Tenn. Crim. App. 2001).

        Before this Court reviews the defendant’s sentence, we must first address the impact of
Blakely v. Washington on Tennessee’s sentencing enhancement provisions. The United States
Supreme Court’s recent opinion in Blakely holds that a trial court cannot enhance a sentence beyond
the statutory maximum based on factors other than those found by the jury or admitted by the
defendant. In Blakely, the Supreme Court, applying the rule in Apprendi v. New Jersey, 530 U.S.
466, 490 (2000), struck down a provision of the Washington sentencing guidelines that permitted a


                                                   -6-
trial judge to impose an "exceptional sentence" upon the finding of certain statutorily enumerated
enhancement factors. The Supreme Court reversed and remanded the case, holding that the sentence
violated the defendant’s Sixth Amendment right to a jury trial because the facts supporting the
defendant’s “exceptional sentence” were neither admitted by him nor found by a jury. Blakely, 124
S. Ct. at 2537.

        Our sentencing scheme under the 1989 Act is similar to Washington’s Sentencing Act,
prescribing particular ranges of punishment depending upon the class of felony and the defendant’s
sentencing range. According to our sentencing scheme, “[r]ape of a child is a Class A felony.” Tenn.
Code Ann. § 39-13-522(b). Because the defendant was a Range I offender, he was subject to a
potential sentence of fifteen to twenty-five years for each of his convictions. Id. § 40-35-112(a)(1).
Pursuant to Tennessee Code Annotated section 40-35-210(c), “[t]he presumptive sentence for a Class
A felony shall be the midpoint of the range if there are no enhancement or mitigating factors.”
Procedurally, the trial court starts at the midpoint of the sentencing range, increasing the sentence
within the range as appropriate based upon the existence of enhancement factors, and then, reducing
the sentence within the range as appropriate based upon the existence of mitigating factors. Id. §
40-35-210(d)-(e). Blakely impacts the validity of the enhancement portion of our statutory sentencing
scheme by specifying that the prescribed statutory maximum equates to the presumptive sentence, not
the maximum sentence in the range. See Blakely, 124 S. Ct. at 2537. Consequently, a trial court
cannot enhance a sentence beyond the presumptive sentence based on factors other than those found
by the jury or admitted by the defendant.

       In this case, the trial court’s application of enhancement factor (2) was based on the
defendant’s written confession of past criminal behavior introduced at trial, but not on any prior
criminal convictions. Although the Blakely decision does not impede the imposition of a greater
sentence based upon evidence of prior convictions, it does preclude a sentencing enhancement based
upon past criminal behavior unless the facts essential to the punishment were either admitted by the
defendant or found by a jury beyond a reasonable doubt. See Blakely, 124 S. Ct. at 2536-37.
Therefore, the fundamental question we must consider is whether an incriminating statement
extrapolated from the defendant's written confession qualifies as an admission by the defendant under
Blakely.


        We initially note that in Blakely, the Supreme Court did not elaborate on what constitutes an
admission by the defendant. Whether an admission in this context refers to a stipulation by the
defendant in relation to a formal judicial proceeding such as a guilty plea hearing or plea colloquy,
or whether such admission simply equates to an admission by the defendant during his testimony at
the sentencing hearing is subject to debate. See, e.g., State v. Chester Wayne Walters, No.
M2003-03019-CCA-R3-CD, 2004 WL 2726034 (Tenn. Crim. App., at Nashville, Nov. 30, 2004).
Nonetheless, as Blakely explains, the Sixth Amendment vests in the jury the right to make all the
factual determinations legally essential to the punishment imposed. Blakely, 124 S. Ct. at 2543.
“When a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found
all the facts which the law makes essential to punishment, and the judge exceeds his proper


                                                 -7-
authority.” Id. at 2537. Moreover, when discussing a defendant’s admissions, the Supreme Court
placed them within the context of a guilty plea hearing where the defendant voluntarily waived his
right to a jury trial and entered a guilty plea. The Supreme Court stated, “nothing prevents a
defendant from waiving his Apprendi rights. When a defendant pleads guilty, the State is free to seek
judicial sentence enhancements so long as the defendant either stipulates to the relevant facts or
consents to judicial fact finding.” Id. at 2541; see also Apprendi, 530 U.S. at 488. In this case, the
evidence considered by the trial court when applying enhancement factor (2) was the defendant’s
written confession entered into evidence as a party opponent admission. At trial, the jury considered
this admission only for the purpose of rendering a guilty verdict on eight counts of child rape. The
jury did not make a determination of all the facts essential to a finding of past criminal behavior.
Moreover, the jury had no opportunity to make a finding of past criminal behavior because the jury
was instructed by the trial court to consider the evidence only for the purpose of determining the
defendant’s guilt as to the eight counts of child rape, nothing more. Absent the additional finding,
the guilty verdict authorized no more than the presumptive sentence for the convictions. Therefore,
the defendant’s written confession presented by the State at trial does not constitute an admission by
the defendant for the purposes of Blakely because the admission was not the product of the
defendant’s testimony at trial or at the sentencing hearing. To hold otherwise would circumvent Due
Process and Sixth Amendment guarantees as interpreted in Blakely. In addition, Blakely precludes
the trial court’s application of enhancement factor (16) because the factor was not reflected in the
jury’s verdict, nor admitted by the defendant. As a result, we conclude that the trial court’s
application of factors (2) and (16) to enhance the defendant’s sentence was improper under Blakely.


        The defendant argues that the trial court erred by declining to apply mitigating factor (1), that
his conduct neither caused nor threatened serious bodily injury. Tenn. Code Ann. § 40-35-113(1).
Specifically, the defendant argues that “serious bodily injury” as defined by statute includes injury
that involves “extreme physical pain.” Id. § 39-11-106(a)(34). He argues that because no proof was
presented to support a finding of “extreme physical pain,” this mitigating factor was applicable.


          Although the definition of “serious bodily injury” includes “extreme physical pain,” it also
encompasses substantial mental impairment. Id. § 39-11-106(a)(34). This Court has held that it “is
difficult to conceive of any factual situation where the rape of a child would not threaten serious
bodily injury.” State v. Edward Earl Huddleston, No. 02C01-9706-CC-00228, 1998 WL 67684, at
*3 (Tenn. Crim. App., at Jackson, Feb. 20, 1998), perm. app. denied (Tenn. Oct. 19, 1998). “Every
rape . . . is physically and mentally injurious to the victim.” State v. Kissinger, 922 S.W.2d 482, 487
(Tenn. 1996). “Oral and vaginal penetration of a child victim presents a danger of both physical and
psychological injury.” State v. Steven M. Stinson, No. E2003-01720-CCA-R3-CD, 2004 WL
1698203 at *7 (Tenn. Crim. App., at Knoxville, July 29, 2004); see also State v. Arnett, 49 S.W.3d
250, 260 (Tenn. 2001) (recognizing that victims of rape must surely experience mental trauma).
Therefore, we conclude that the trial court did not abuse its discretion in declining to apply mitigating
factor (1).




                                                  -8-
        In summary, we conclude that the evidence is sufficient to sustain the child rape convictions,
but that under Blakely, the trial court erred in applying enhancement factors (2) and (16) to the
defendant’s sentences. Therefore, we reduce each of the defendant’s eight child rape sentences from
twenty-five to twenty years which results in a total effective sentence of forty years at 100%.
Otherwise, we affirm the judgments of the trial court.




                                                       ___________________________________
                                                       J. C. McLIN, JUDGE




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