             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT JACKSON

                             MAY 1998 SESSION
                                                    FILED
                                                       July 8, 1998

                                                   Cecil Crowson, Jr.
                                                    Appellate C ourt Clerk
STATE OF TENNESSEE,               )
                                  )     C.C.A. NO. 02C01-9711-CR-00452
             Appellee,            )
                                  )     SHELBY COUNTY
VS.                               )
                                  )     HON. BERNIE WEINMAN,
ANDERSON D. CURRY,                )     JUDGE
                                  )
             Appellant.           )     (Rape of a child)



FOR THE APPELLANT:                      FOR THE APPELLEE:


A C WHARTON, JR.                        JOHN KNOX WALKUP
District Public Defender                Attorney General & Reporter

SHERRY BROOKS                           CLINTON J. MORGAN
Asst. Public Defender                   Counsel for the State
  -At Trial-                            425 Fifth Ave., North
                                        Cordell Hull Bldg., Second Fl.
WALKER GWINN                            Nashville, TN 37243-0493
Asst. Public Defender
201 Poplar Ave., Suite 201              JOHN W. PIEROTTI
Memphis, TN 38103                       District Attorney General
   -On Appeal-
                                        THOMAS HOOVER
                                        Asst. District Attorney General
                                        201 Poplar Ave., Suite 301
                                        Memphis, TN 38103




OPINION FILED:____________________



AFFIRMED


JOHN H. PEAY,
Judge
                                            OPINION



                 The defendant was indicted in December 1996 for rape of a child. A Shelby

County jury found him guilty and the trial court sentenced him to twenty years in the

Tennessee Department of Correction. In this appeal as of right, the defendant argues

that the evidence is insufficient to support his conviction and that the trial court erred

when it admitted into evidence a chart depicting the victim’s injuries. The defendant also

argues that his sentence is excessive. After a review of the record and applicable law,

we affirm the judgment of the court below.



                 Because the defendant has challenged the sufficiency of the evidence, a

detailed account of the facts is necessary. In September of 1996, the victim, C.R.1 was

living with her mother, her younger sister, and her mother’s boyfriend, the defendant.

C.R. testified that on Sunday, September 15, 1996, she and her sister had been at home

with the defendant while their mother was at work. She stated that she had planned to

take a bath and then go to the store with some friends. She went into the room shared

by her mother and the defendant so that she could get a towel. When she entered the

room, the defendant asked her to play a card game with him. She agreed but when she

started to leave, the defendant asked her to watch television with him and then began

tickling her.



                 C.R. testified that after the tickling, the defendant pulled her on top of him.

He then asked her, “Want to do this?” and she said “No.” She said she knew what “this”

meant because the defendant had pulled her on top of him. She testified that the

defendant had then “pulled [her] pants out of the way and stuck his penis into [her]



        1
          The policy of this Court is to withhold the identity of young children involved in sexual abuse
cases , identifying them only by their initials. See State v. Schimpf, 782 S.W.2d 186, 188 n.1 (Tenn.
Crim. App. 1989).



                                                     2
vagina.” She also stated that it had hurt when the defendant did this. However, she

testified that she had not seen the defendant’s penis nor had she seen him unzip his

pants. She testified that she was not sure the defendant had penetrated her with his

penis but that she knew something had been put inside of her and that the defendant had

done it.



              Following this incident, C.R. took a bath. She then left the house to meet

a friend. When she met her friend, C.R. told her what had happened, and she and her

friend decided to go to a nearby police station. At the station, she told officers what had

happened and she was taken to a nurse for an examination.



              On cross-examination, C.R. testified that she had first met the defendant

in June of that year. She said he had several pieces of furniture in her house but she

denied getting angry when the defendant told her he had planned to remove the furniture.

She further denied arguing with the defendant on the day of the incident about house

cleaning duties. However, she did testify that she and the defendant had argued on a

previous occasion about that topic.



              C.R. further testified that the defendant had stayed with her and her sister

on several occasions. She also stated that when she left the house after taking her bath,

she left her sister at the house. She said that the defendant had never before touched

her in an inappropriate way.



              Sandra Anderson, a family nurse practitioner and sexual assault nurse

examiner for the city of Memphis, testified that she had examined C.R. on September 15,

1996. She performed a physical exam and took C.R.’s statement about the incident.

The examination revealed slight bleeding and a laceration in an area below the hymen.

Anderson explained that the bleeding meant that a trauma or acute injury had occurred

                                            3
within the past twenty-four hours to that area. She further testified that she was unable

to say exactly what had caused the trauma but that she could say it had been caused by

some form of penetration to that area. However, she testified that she had found no

traces of semen on C.R.



              Anderson further testified that C.R. had “notches” or “interruptions in the

integrity of the hymen” that could have been the result of penetration.             However,

Anderson stated that the notches could have been caused prior to the time of this

incident. She further explained that her examination had revealed rolled hymenal tissue

which indicates some prior trauma to the area that had scarred and healed. She said this

injury could have been caused by an acute injury and not necessarily by penetration.



              The defendant now argues that the State failed to present sufficient

evidence of sexual penetration. A defendant challenging the sufficiency of the proof has

the burden of illustrating to this Court why the evidence is insufficient to support the

verdict returned by the trier of fact in his or her case. This Court will not disturb a verdict

of guilt for lack of sufficient evidence unless the facts contained in the record and any

inferences which may be drawn from the facts are insufficient, as a matter of law, for a

rational trier of fact to find the defendant guilty beyond a reasonable doubt. State v.

Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).



              When an accused challenges the sufficiency of the convicting evidence, we

must review the evidence in the light most favorable to the prosecution in determining

whether “any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61

L.Ed.2d 560 (1979). We do not reweigh or re-evaluate the evidence and are required to

afford the State the strongest legitimate view of the proof contained in the record as well

as all reasonable and legitimate inferences which may be drawn therefrom. State v.

                                              4
Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).



              Questions concerning the credibility of witnesses, the weight and value to

be given to the evidence, as well as factual issues raised by the evidence are resolved

by the trier of fact, not this Court. Cabbage, 571 S.W.2d 832, 835. A guilty verdict

rendered by the jury and approved by the trial judge accredits the testimony of the

witnesses for the State, and a presumption of guilt replaces the presumption of

innocence. State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973).



              “Sexual penetration” is statutorily 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.” T.C.A.

§ 39-13-501(7). In this case, C.R. initially testified that the defendant had “stuck his penis

into [her] vagina.” She later stated that she was not completely sure that it had been the

defendant’s penis that had penetrated her but that she knew something had been put

inside of her. Anderson’s testimony corroborated C.R.’s testimony that she had been

penetrated. Anderson found slight bleeding and a recent tear near C.R.’s hymen. W hile

she could not identify the cause of the tear and bleeding, she said that the injury certainly

could have been caused by some form of penetration to that area.



              We find this evidence to be entirely sufficient. That C.R. could not definitely

say that she had been penetrated by the defendant’s penis is of no consequence. She

could definitely state that she had been penetrated by something and that the defendant

had caused the penetration. In addition, physical evidence showed a recent injury to

C.R.’s vaginal area. This evidence is certainly sufficient to satisfy the definition of “sexual

penetration.” The defendant does not challenge any other element of the crime. Thus,

we find no merit to his sufficiency challenge.

                                              5
              The defendant next argues that the trial court erred when it admitted into

evidence a diagram of C.R.’s genital area. The defendant argues that because the chart

also showed past injuries that may have been caused by penetration, the chart was

prejudicial and its introduction deprived him of a fair trial.



              The chart depicted the “notches” Anderson described during her testimony.

It also indicated the bleeding and the rolled hymenal tissue. While Anderson testified that

the notches and rolled hymenal tissue were caused by previous injuries, she could not

state the nature of this injury. The defendant argues that the chart left the jury with the

impression that C.R. had been penetrated before and that he had been the one to do so.

To the contrary, Anderson did not say the previous injuries were caused by penetration.

Furthermore, C.R. testified that the defendant had never before touched her in an

inappropriate manner. Thus, we find no error in admitting the chart into evidence. Also,

as pointed out above, the evidence is entirely sufficient to convict the defendant of rape

of a child. Thus, if there were an error in admitting the chart, it was certainly harmless

beyond a reasonable doubt. T.R.A.P. 36(b); Tenn. R. Crim. P. 52(a).



              As his final issue, the defendant argues that his sentence is excessive. The

trial court sentenced him as a Range I standard offender to twenty years imprisonment,

the presumptive sentence in that range. When a defendant complains of his or her

sentence, we must conduct a de novo review with a presumption of correctness. T.C.A.

§ 40-35-401(d). The burden of showing that the sentence is improper is upon the

appealing party. T.C.A. § 40-35-401(d) Sentencing Commission Comments. This

presumption, however, “is conditioned upon the affirmative showing 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).



              A portion of the Sentencing Reform Act of 1989, codified at T.C.A.

                                              6
§ 40-35-210, established a number of specific procedures to be followed in sentencing.

This section mandates 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 sentencing and arguments 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
               defendant wishes to make in his own behalf about sentencing.


T.C.A. § 40-35-210.



              In addition, this section provides that the midpoint of the appropriate range

is the presumptive sentence for Class A felonies. If there are enhancing and mitigating

factors, the court must start at the presumptive sentence and enhance the sentence as

appropriate for the enhancement factors and then reduce the sentence within the range

as appropriate for the mitigating factors. If there are no mitigating factors, the court may

set the sentence above the presumptive in that range but still within the range. The

weight to be given each factor is left to the discretion of the trial judge. State v. Shelton,

854 S.W.2d 116, 123 (Tenn. Crim. App. 1992).



              The Act further provides that “[w]henever the court imposes a sentence, it

shall place on the record either orally or in writing, what enhancement or mitigating factors

it found, if any, as well as findings of fact as required by § 40-35-209.” T.C.A.

§ 40-35-210(f) (emphasis added). Because of the importance of enhancing and mitigating

factors under the sentencing guidelines, even the absence of these factors must be

recorded if none are found. T.C.A. § 40-35-210 comment. These findings by the trial

judge must be recorded in order to allow an adequate review on appeal.



              The defendant specifically argues that the trial court erred when it failed to


                                              7
consider two mitigating factors, that he had been gainfully employed as a security guard

and that he had never before been convicted of a felony. He also argues that the trial

court erroneously applied several enhancement factors.



              The defendant was the only person to testify at the sentencing hearing. He

testified that he had been employed as a security patrol for CDA Security for the two and

a half years prior to his arrest. He also stated that he had served in the Army for three

years and had received an honorable discharge. His prior record included two DUI

convictions and at least two other driving offenses. However, the record revealed no prior

felonies. The defendant explained that he was on probation for DUI at the time of his

arrest in this case. His arrest resulted in a violation of that probation. The defendant

further testified that he was sorry about what had happened to C.R. However, he

continued to deny having raped her.



              Following the hearing, the trial judge announced that he found no mitigating

factors but that he did find five enhancement factors. The defendant now argues that the

trial court should have considered his work history and his lack of felony convictions as

mitigating factors. As this Court has noted before, “Every citizen in this state is expected

to have a stable work history if the economy permits the citizen to work, the citizen is not

disabled, or the citizen is not independently wealthy.” State v. Keel, 882 S.W.2d 410, 423

(Tenn. Crim. App. 1994). Thus, we see no reason why the trial court should have

considered the defendant’s two and one-half years of employment as a mitigating factor.

Likewise, we can find no justification for mitigating his sentence based on his lack of

felony convictions. Not only is every citizen expected to have a stable work history, but

also is expected to refrain from committing any type of crime. We can find no merit to the

defendant’s argument.



              The trial court found the following enhancement factors from T.C.A.

                                             8
§ 40-35-114: that the defendant has a previous history of criminal convictions or criminal

behavior (1); that the offense involved a victim and was committed to gratify the

defendant’s desire for pleasure and excitement (7); that the defendant has a previous

history of unwillingness to comply with the conditions of a sentence involving release in

the community (8); that the felony was committed while the defendant was on probation

(13); and that the crime was committed under circumstances under which the potential for

bodily injury to a victim was great (16). The defendant challenges the application of all the

above with the exception of factor one. This factor clearly applies as the defendant has

been convicted of DUI twice and has at least two other driving related convictions.



               As for factors eight and thirteen, the State concedes that these factors are

not applicable. The defendant’s previous convictions were for misdemeanors only, and

factor thirteen requires a defendant to have been on release status from a prior felony

conviction. Similarly, there was no evidence that the defendant did not comply with the

conditions of his probation. His final appointment with his probation officer was missed

because he was incarcerated. We agree with the defendant and the State that these two

factors were erroneously applied.



               We also find that the trial court erroneously applied factor seven, that the

offense involved a victim and was committed to gratify the defendant’s desire for pleasure

or excitement. While this factor may be applied in rape cases, the State has “the burden

of demonstrating that the rape was sexually motivated (done to gratify the Defendant's

desire for pleasure or excitement),” which the State did not do in this case. State v.

Adams, 864 S.W.2d 31, 35 (Tenn. 1993).2 Thus, this factor cannot apply.




        2
         The State’s brief argues that this factor should be applied because “[t]here is no other apparent
reason for [the defendant’s] actions.” To the contrary, there could be an infinite number of other reasons
and we remind the State that if the State wishes to rely on this or any other factor, the State must offer
evidenc e, not con clusory sta teme nts, in sup port of its arg ume nt.

                                                   9
              As to factor sixteen, that the offense was committed under circumstances

under which the potential for bodily injury to the victim was great, we find that this factor

was also erroneously applied. While the nurse practitioner did testify that C.R. had some

evidence of an injury, the penetration by the defendant did not pose great potential for

bodily injury nor were the injuries suffered by C.R. particularly great. See State v. Carico,

__ S.W.2d __ (Tenn. 1997); State v. Kissinger, 922 S.W.2d 482, 488 (Tenn.

1996)(rejecting this factor where a young boy had been orally and anally penetrated).



              The State suggests that enhancement factor four, that the victim was

particularly vulnerable, and factor fifteen, that the defendant abused a position of private

trust should have been applied. While the better practice is for the trial court to carefully

consider all relevant and possible sentencing factors, this Court is authorized to consider

any enhancement (or mitigating) factors supported by the record. Adams, 864 S.W.2d

at 34. As to factor four, the Supreme Court has stated that “vulnerability enhancement

relates more to the natural physical and mental limitations of the victim than merely to the

victim's age.” Adams, 864 S.W.2d at 35. In order for this factor to be applied, the State

must offer some proof as to how this victim was particularly vulnerable. Because the

State failed to do so, its suggestion that this factor be applied is misplaced.



              We do, however, agree with the State that the trial court should have applied

factor fifteen, that the defendant abused a position of private trust. C.R. testified that her

mother had left her and her sister in the defendant’s care and that the defendant had

stayed alone with the two girls on previous occasions. The Supreme Court has explained

that in applying this factor, a court must determine “whether the offender formally or

informally stood in a relationship to the victim that promoted confidence, reliability, or

faith.” Kissinger, 922 S.W.2d at 488. C.R.’s mother had entrusted the defendant with the

care of her two daughters, and the defendant had served in this role prior to this incident.

Thus, it is clear that the defendant abused his position of private trust. Enhancement

                                             1 0
factor fifteen should have been applied.



              In summary, we find that the applicable enhancement factors are factor one,

that the defendant has a previous history of criminal convictions or behavior, and factor

fifteen, that the defendant abused a position of public trust. T.C.A. § 40-35-114. We

further find that no mitigating factors are applicable. T.C.A. § 40-35-113. The trial court

had sentenced the defendant to twenty years, the presumptive sentence for a Class A

felony, despite the court’s application of four enhancement factors. While the application

of three of the factors was erroneous, we cannot find that sentencing the defendant to the

presumptive sentence was an abuse of discretion. Thus, we affirm the defendant’s

sentence of twenty years in the Tennessee Department of Correction.



              For the foregoing reasons, the judgment of the court below is affirmed.




                                                  _______________________________
                                                  JOHN H. PEAY, Judge



CONCUR:



_______________________________
PAUL G. SUMMERS, Judge



_______________________________
THOMAS T. W OODALL, Judge




                                            1 1
