          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT JACKSON

                           JANUARY 1999 SESSION
                                                             FILED
                                                               March 24, 1999

                                                             Cecil Crowson, Jr.
                                                             Appellate C ourt Clerk

STATE OF TENNESSEE,                  )
                                     ) C.C.A. No. 02C01-9806-CC-00179
      Appellee,                      )
                                     ) Carroll County
V.                                   )
                                     ) Honorable C. Creed McGinley, Judge
                                     )
JAMES ALFRED ANDERS,                 ) (Rape)
                                     )
      Appellant.                     )




FOR THE APPELLANT:                      FOR THE APPELLEE:

GUY T. WILKINSON                        JOHN KNOX WALKUP
District Public Defender                Attorney General & Reporter

BILLY R. ROE, JR.                       J. ROSS DYER
Assistant District Public Defender      Assistant Attorney General
117 North Forrest Avenue                Criminal Justice Division
Camden, TN 38320                        425 Fifth Avenue North
                                        Nashville, TN 37243

                                        ROBERT “GUS” RADFORD
                                        District Attorney General

                                        ELEANOR CAHILL
                                        Assistant District Attorney General
                                        24th Judicial District
                                        P.O. Box 686
                                        Huntingdon, TN 38344




OPINION FILED: ___________________

AFFIRMED AS MODIFIED


JOHN EVERETT WILLIAMS,
Judge
                                  O P I N IO N

       James Alfred Anders appeals as of right from a judgment of the Circuit

Court of Carroll County convicting him of rape following a jury trial. The trial

court sentenced him as a range I standard offender to ten years’ confinement,

with a release eligibility of thirty percent. The sole issue presented for our review

is whether the evidence at trial was sufficient to support the defendant’s

conviction. We AFFIRM the trial court’s judgment of conviction but MODIFY the

sentence imposed below to conform with statutory mandates.



                                  BACKGROUND

       On Friday, June 20, 1997, the defendant rented a room for the weekend

at the Shannon Lee Motel. Donald Hatcher, an acquaintance and co-worker of

the defendant, lived at the Shannon Lee. The defendant visited Hatcher in his

room several times during the next two days. Hatcher testified that the

defendant became irritated and attempted to start a fight with him during one of

these visits. On another occasion, the defendant told him that he had a knife in

his room and that he had stabbed a person. Hatcher asserted that, because of

these incidents, he was afraid of the defendant.



       On Sunday, June 22, 1997, the defendant again visited Hatcher in his

room. After the two had talked for some time, the defendant asked Hatcher if he

could see him without his clothes. Hatcher said no. The defendant asked again,

and Hatcher again declined. The defendant then offered Hatcher forty dollars,

but Hatcher still refused. At that point, Hatcher testified, the defendant jumped

up and ran to the door, locked it, and stated, “I’m going to do whatever it takes to

see you out of your clothes.”



       According to Hatcher, after the defendant locked the door, he held one

hand behind his back and told Hatcher to remove his clothes. Hatcher began to

disrobe, and the defendant pulled Hatcher’s underwear down and removed his


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shirt. At the defendant’s direction, Hatcher then removed the remainder of his

clothes and lay on the bed. The defendant got on top of Hatcher and attempted

to engage in anal sex. When he was unable to penetrate Hatcher, the defendant

got up and went to his room to retrieve some lubricant.



      When the defendant left, Hatcher locked the door and got dressed. He

testified that he intended to leave and contact the police. Before he could

escape, however, the defendant returned and knocked on his door. Hatcher

stated that he opened the door and started to leave, but the defendant would not

let him pass. According to Hatcher, the defendant physically pushed him back

inside the room. The defendant again told Hatcher to undress and to lie on the

bed. Hatcher complied, allegedly out of fear of the defendant.



      The defendant then repeated his earlier attempt to engage in anal sex.

Hatcher testified that he did not attempt to physically resist. He stated, however,

that he yelled for help and repeatedly told the defendant to stop. The defendant

did not stop. Instead, according to Hatcher, the defendant held him down with

his hands pinned under him so that he could not remove them and proceeded to

anally penetrate Hatcher with his penis. Hatcher testified that he did not

consent.



       When the defendant finished, he put some money on the table and left.

Hatcher showered, got dressed, and went to his sister’s home. He and his sister

then went to the police and reported that the defendant had raped him.



       The defendant’s trial testimony materially differed from Hatcher’s only in

that he denied any suggestion of force or coercion and denied that Hatcher had

told him to stop. Rather, he asserted that the act was consensual and

suggested that Hatcher’s allegations were the result of his desire to justify the

incident after his becoming ashamed of having sex with another man.



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                                    ANALYSIS

       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. See Jackson v. Virginia, 443 U.S. 307,

319 (1979); State v. Duncan, 698 S.W.2d 63, 67 (Tenn. 1985); Tenn. R. App. P.

13(e). The appellee is entitled to the strongest legitimate view of the evidence

and all reasonable inferences that may be drawn therefrom. See State v.

Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).



       The credibility of witnesses, the weight of their testimony, and the

reconciliation of conflicts in the evidence are matters entrusted exclusively to the

trier of fact. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v.

Gentry, 881 S.W.2d 1, 3 (Tenn. Crim. App. 1993). A jury verdict for the state

accredits the testimony of the state’s witnesses and resolves all conflicts in favor

of the state. See State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983).

Moreover, a guilty verdict removes the presumption of innocence enjoyed by

defendants at trial and replaces it with a presumption of guilt. See State v.

Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Thus, an appellant challenging the

sufficiency of the evidence carries the burden of illustrating to this Court why the

evidence is insufficient to support the verdict. See State v. Freeman, 943

S.W.2d 25, 29 (Tenn. Crim. App. 1996).



       The defendant has not carried this burden. Rape is defined, in pertinent

part, as the “unlawful sexual penetration of a victim by the defendant or of the

defendant by a victim accompanied by any of the following circumstances . . .

[f]orce or coercion is used to accomplish the act . . . [or] [t]he sexual penetration

is accomplished without the consent of the victim and the defendant knows or




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has reason to know at the time of the penetration that the victim did not consent.”

Tenn. Code Ann. § 39-13-503(a)(1)-(2).



       Thus, to sustain the defendant’s conviction, there must be proof of both

(1) sexual penetration and (2) either coercion or lack of consent. The defendant

concedes sexual penetration, but he denies that the act was nonconsensual or

coerced. He argues that Hatcher’s testimony to the contrary is illogical and

uncreditworthy and that the totality of the evidence preponderates in his favor.

In essence, he asks this Court to reweigh the evidence. This we cannot do.



       Hatcher testified at trial that he repeatedly told the defendant to stop. This

testimony, if believed by the jury, was clearly sufficient to establish Hatcher’s lack

of consent and that the defendant had reason to know that Hatcher did not

consent. The credibility of witnesses is a question for the trier of fact; the jury

was competent to credit Hatcher’s testimony and discredit that of the defendant.

This issue is without merit.



                               RELEASE ELIGIBILITY

       Finally, although not raised by the parties, we observe that the sentence

imposed below indicates an incorrect release eligibility. During the defendant’s

sentencing hearing, the trial judge twice noted that the defendant would be

required to serve his entire sentence. Nevertheless, the judgment sheet

indicates a release eligibility of thirty percent. An offender who commits rape on

or after July 1, 1995, “shall serve one hundred percent (100%) of the sentence

imposed by the court less sentence credits earned and retained.” Tenn. Code

Ann. § 40-35-501(I)(1), (2)(G). Because the trial judge was aware of the correct

release eligibility, we need not remand for resentencing. Cf. State v. Delbert Lee

Harris, No. 01C01-9705-CC-00177 (Tenn. Crim. App. filed Sept. 30, 1998, at

Nashville) (concluding that remand for resentencing was appropriate when trial

court erred as to release eligibility because trial court’s imposition of sentence



                                          -5-
was uninformed). We modify the sentence below to comport with the above

cited statute.



                                  CONCLUSION

       The trial court’s judgment of conviction is affirmed. The sentence

imposed below is modified in that the defendant shall have no release eligibility,

and this cause is remanded to the trial court for entry of a judgment consistent

with this opinion.




                                        -6-
                                      ____________________________

                                      JOHN EVERETT W ILLIAMS, Judge




CONCUR:




_____________________________

DAVID G. HAYES, Judge




_____________________________

JOE G. RILEY, Judge




                                -7-
