         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs January 26, 2005

          STATE OF TENNESSEE v. MICHAEL RICARDO MARTIN

                    Appeal from the Criminal Court for Davidson County
                            No. 2002-A-587 Steve Dozier, Judge



                     No. M2004-00455-CCA-R3-CD - Filed June 24, 2005


On March 25, 2002, the defendant, Michael Ricardo Martin, was indicted by the Davidson County
Grand Jury on two (2) counts of rape for an incident that occurred on November 27, 2001. A jury
trial was held and the defendant was convicted of one (1) count of rape and one (1) count of sexual
battery. The trial court sentenced the defendant to concurrent sentences of ten (10) years for the rape
conviction and two (2) years for the sexual battery conviction. On appeal the defendant argues that
the trial court erred by not granting his motion for judgment of acquittal, by granting the State’s
motion in limine regarding evidence concerning a prior hymenal injury sustained by the victim and
by sentencing the defendant to a ten (10) year effective sentence. We affirm the judgments of the
trial court.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court is Affirmed.

JERRY L. SMITH , J., delivered the opinion of the court, in which DAVID H. WELLES and ROBERT W.
WEDEMEYER, JJ., joined.

Michael A. Colavecchio, Nashville, Tennessee, for the appellant, Michael Ricardo Martin.

Paul G. Summers, Attorney General & Reporter; John H. Bledsoe, Assistant Attorney General;
Victor S. Johnson, District Attorney General, and Derrick Scretchen, Assistant District Attorney
General, for the appellee, State of Tennessee.
                                                        OPINION

                                                  Factual Background

        On November 27, 2001, fifteen-year-old T.T.1 came home from her job at Kroger and went
upstairs to her bedroom to sleep. Her fourteen-year-old brother, M.H., was watching television in
the living room when he heard a knock on the door. M.H. answered the door and let in Michael
Martin, the defendant. The defendant is a former boyfriend of the children’s mother. T.T.’s
seventeen-year-old (17) sister, S.H., was asleep on the couch. S.H. woke up and saw the defendant.
A short time later she woke up again and asked M.H. where the defendant was. M.H. told S.H. that
the defendant had gone upstairs to use the bathroom. S.H. went upstairs to see what was taking the
defendant so long. When she got upstairs, she turned the lights on in her room and saw the
defendant “on top of [T.T.], and his penis was in her anus.” S.H. ran downstairs and went next door
to a neighbor’s house.

        Cassandra McCottery is the family’s neighbor as well as the best friend of the mother. She
called T.T.’s mother at work and told her what had happened. T.T.’s mother, P.H. came home
immediately. The defendant was still at P.H.’s home when she arrived. He denied any wrongdoing.
P.H. took T.T. and the other children to the hospital to be examined. The defendant followed the
family in his own car. The family initially went to Vanderbilt Medical Center and were referred to
the Our Kids Center of the Nashville General Hospital.

         T.T. underwent an examination by the staff at the Our Kids Center. Lisa Dupree is on the
staff at Our Kids Center. She takes a history from the patients seen at the center. She collected
background from T.T. the night of her examination. T.T. told Ms. Dupree that “[the defendant’s]
private went inside her bottom and her private.” T.T. also told Ms. Dupree that the defendant did
not ejaculate. Julie Rosof-Williams is a nurse practitioner with Our Kids Center. She conducted the
physical examination of T.T. She found a fissure in T.T.’s vagina that was fresh and most likely
occurred within the twenty-four (24) hours immediately preceding the examination. Ms. Rosof-
Williams did not find any medical evidence that T.T. had been anally penetrated, but it is unusual
to find any injury after anal penetration. Ms. Rosof-Williams took swabs during the examination,
but these swabs did not show any signs of semen.

        The defendant was indicted on March 25, 2002 for two counts of rape. Following a jury trial
held on February 24 and 25, 2003, the defendant was convicted of one count of rape and one count
of sexual battery. The defendant was sentenced to ten (10) years at 100% for the rape involving
vaginal penetration and an additional two (2) years at 30% for sexual battery. The sentences were
to run concurrently.




       1
           It is the policy of this Court, to refer to the minor victim and her siblings by their initials.

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        The defendant filed a pro se motion for post-conviction relief on September 11, 2003, and
that motion was later amended by appointed counsel. A motion for new trial had been filed on
March 12, 2003, but the trial court had never heard the motion. The trial court allowed the defendant
to present his original motion for new trial because it had not been previously heard. Following an
evidentiary hearing on January 23, 2004, the trial court denied the defendant’s motion. The
defendant timely filed a notice of appeal.

                                              ANALYSIS

        The defendant argues three (3) issues on appeal: (1) the trial court erred in not granting the
defendant’s Motion for Judgment of Acquittal at the conclusion of the State’s proof; (2) the trial
court erred in preventing testimony as it related to the issue of an old hymenal injury; and (3) the trial
court erred in sentencing the defendant.

                                        Thirteenth Juror Rule

        The defendant argues that the trial court erred in not granting his motion for judgment of
acquittal at the conclusion of the State’s proof. However, upon reviewing the record we have
discovered that the defendant did not move for a judgment of acquittal at the conclusion of the
State’s proof. In fact, the defendant’s attorney specifically states that he is not asking for a judgment
of acquittal but instead makes a motion with regard to the specifics of the jury charge.

        Even though there was no motion for judgment of acquittal, we will nevertheless address this
issue on the merits of the trial court’s performance as thirteenth juror with regard to the motion for
new trial. Rule 33(f) of the Tennessee Rules of Criminal Procedure provides that “[t]he trial court
may grant a new trial following a verdict of guilty if it disagrees with the jury about the weight of
the evidence.” Tenn. R. Crim. P. 33(f). “This portion of the Rule is the modern equivalent to the
‘thirteenth juror rule,’ whereby the trial court must weigh the evidence and grant a new trial if the
evidence preponderates against the weight of the verdict.” State v. Blanton, 926 S.W.2d 953, 958
(Tenn. Crim. App. 1996). The Tennessee Supreme Court has held “that Rule 33(f) imposes upon a
trial court judge the mandatory duty to serve as the thirteenth juror in every criminal case.” State v.
Carter, 896 S.W.2d 119, 122 (Tenn. 1995). Moreover, the “approval by the trial judge of the jury’s
verdict as the thirteenth juror is a necessary prerequisite to the imposition of a valid judgment.” Id.
However, “Rule 33(f) does not require the trial judge to make an explicit statement on the record.”
Id. “Instead, when the trial judge simply overrules a motion for new trial, an appellate court may
presume that the trial judge has served as the thirteenth juror and approved the jury’s verdict.” Id.

        In his brief the defendant’s argument consists of a statement that “the trial court failed to
exercise it’s duty as a 13th juror and dismiss the case, based on the evidence, or lack thereof, and the
fact that the State failed to carry it’s burden to prove the Appellant guilty beyond a reasonable
doubt.” We disagree. At the hearing on the motion for new trial, the trial court summarized the
proof. The trial court specifically stated that there was sufficient evidence to support a verdict of
guilt. As stated above, when a trial judge overrules a motion for new trial that is enough to presume


                                                   -3-
that he has acted as thirteenth juror. In this case, the trial court stated on the record that he found the
proof to be sufficient. Therefore, we conclude that the trial judge acted properly as thirteenth juror.

                                           Evidentiary Issue

        Prior to trial, the State filed a motion in limine concerning a previous hymenal injury to the
victim. After the State’s offer of proof through the testimony of Ms. Rosof-Williams, the trial court
granted the State’s motion that the evidence of a previous hymenal injury was irrelevant to the case
against the defendant. The trial court made the following ruling on the record:


                All right. On the issue concerning the medical exam and the proffer we’ve
        heard from Ms. Williams, as I mentioned before our lunch break, and - - [the
        defendant’s attorney] is confirming that his purpose for asking about these old, well-
        healed hymenal injury (sic) - - how the Witness described it - - is - - his purpose for
        doing that is for impeaching the victim about making a prior inconsistent statement
        and not under Four-twelve, which I mentioned before lunch that that wouldn’t be an
        option, because he hadn’t filed a motion.

                And it wouldn’t be the mechanism for introducing it anyway, since Four-
        twelve deals with prior sexual activity. The alleged victim here, [T.T.], is, according
        to the medical information, saying that there is no prior sexual activity.

                So, I agree with the State, in terms of - - and I don’t think [defendant’s
        attorney] was even arguing this or hasn’t argued - - that - - that in any way can you
        use the impeachment rules and purposes to get around Four-twelve, even though
        those issues of impeachment address potential Four-twelve areas; that is, if you - -
        if you looked at Ms. Williams’ testimony about it could be consistent with sexual
        activity, this old, healed injury; it could be consistent with accidental injury.

                So, even Ms. Williams is saying it may not be Four-twelve-related. So, that’s
        sort of off the table, the Four-twelve aspect.

                When you look at impeachment and the purposes for it, under Six-thirteen,
        that’s only for judging a witness’ credibility.

                And the Defendant’s argument is, well, she says she hadn’t been sexually
        assaulted by my argument is, based on the medical proof, hat she has been sexually
        assaulted.

               But that’s not exactly what the Witness is saying. She can’t say if it is or isn’t
        sexually-related or how that injury would’ve occurred.



                                                   -4-
              So, you know, you can’t use that line of questioning of the victim or bring it
       out through Ms. Williams, to embarrass or somehow paint T.T. as some loose
       woman, the way the old Four-twelve cases talked about, just to get it in through
       impeachment.

               So, the question is what is it impeaching; what would that statement in the
       medical report, that she has no prior sexual assaults and nobody’s done this to me
       before - - what’s it inconsistent with.

              And, from what I’ve heard thus far, it’s not inconsistent with anything. Ms.
       Williams says she can’t say if there’s past sexual penetration, that it would be
       accidental.

             So, there’s nothing proving that it is an inconsistent statement and - - and thus
       wouldn’t be impeaching anything.

                Then you can look at it in terms of just general relevancy, which is what I
       keep coming back to, and how that Rule defines relevancy - - that Rule being Four-0-
       one - - is any piece of evidence that has any tendency to prove a fact that’s material
       to the case.

              And - - and, even when you look at it under Four-0-one, it doesn’t have any
       bearing or any impact on whether [T.T.] was raped, on or about November twenty-
       seventh of ‘0-one, because the Witness says that it - - from a medical standpoint - -
       occurred at least two weeks prior to the exam.

                So, based on the issues and the evidence presented at this time, I don’t think
       it’s relevant, I don’t think it’s impeachment information of [T.T.], and it certainly
       isn’t relevant under Four-twelve.

               So, unless something changes, that would be the Court’s ruling.


       The defendant maintains that this evidence is both relevant, and in the alternative, is available
to be used to impeach the victim because she “lied about any prior injury to her hymen . . . .”
Turning first to the question of relevance, we acknowledge that evidence must be relevant and
probative to an issue at trial in order to be admissible. State v. McCary, 922 S.W.2d 511, 515 (Tenn.
1996); see also Tenn. R. Evid. 402. Evidence is relevant if it has “any tendency to make the
existence of any fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” Tenn. R. Evid. 401. However, relevant evidence
may be excluded at trial if the probative value of that evidence “is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the jury . . . .” Tenn. R. Evid. 403.
The determination of relevancy is left to the discretion of the trial court, and this Court will not


                                                  -5-
overturn a trial court’s determination in this regard in the absence of an abuse of discretion. State
v. Williamson, 919 S.W.2d 69, 78-79 (Tenn. Crim. App. 1995); State v. Forbes, 918 S.W.2d 431,
449 (Tenn. Crim. App. 1995).

        We agree with the trial court that evidence of a previous well-healed hymenal injury is not
relevant to the defendant’s trial. A previous hymenal injury does not make it more or less likely that
the defendant raped the victim on the night in question. We find that there was no abuse of
discretion by the trial court.

       We also agree with the trial court regarding the admissibility of the evidence for the purposes
of impeachment. When the Our Kids Center staff asked the victim if she had been raped before or
engaged in sexual intercourse she said no. The nurse practitioner who examined T.T. and found the
previous injury testified that the injury could have occurred from an accidental injury as well as
sexual contact. The evidence is too ambiguous to show that the victim lied, as the defendant
contends. Therefore, we agree with the trial court that this information is not proper for
impeachment under Rule 613 of the Tennessee Rules of Evidence.

       This issue is without merit.

                                            Sentencing

        The defendant’s final argument is that the trial court failed to apply enough weight to
mitigating factors found at Tennessee Code Annotated section 40-25-113. He contends that if the
trial court had applied any weight to the factors then the trial court should have sentenced the
defendant to an eight (8) year sentence so that the defendant would have been eligible for probation.

        “When reviewing sentencing issues . . . , the appellate court shall conduct a de novo review
on the record of such issues. Such review shall be conducted with a presumption that the
determinations made by the court from which the appeal is taken are correct.” Tenn. Code Ann. §
40-35-401(d). “However, the presumption of correctness which accompanies the trial court’s action
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). In conducting our review, we must consider the defendant’s potential for
rehabilitation, the trial and sentencing hearing evidence, the pre-sentence report, the sentencing
principles, sentencing alternative arguments, the nature and character of the offense, the enhancing
and mitigating factors, and the defendant’s statements. Tenn. Code Ann. §§ 40-35-103(5), -210(b);
Ashby, 823 S.W.2d at 169. We are to also recognize that the defendant bears “the burden of
demonstrating that the sentence is improper.” Ashby, 823 S.W.2d at 169.

        In balancing these concerns, a trial court should start at the presumptive sentence, enhance
the sentence within the range for existing enhancement factors, and then reduce the sentence within
the range for existing mitigating factors. Tenn. Code Ann. § 40-35-210(e). No particular weight
for each factor is prescribed by the statute. See State v. Santiago, 914 S.W.2d 116, 125 (Tenn. Crim.


                                                 -6-
App. 1995). The weight given to each factor is left to the discretion of the trial court as long as it
comports with the sentencing principles and purposes of our code and as long as its findings are
supported by the record. Id.2

        The trial court sentenced the defendant to ten (10) years at 100% for his rape conviction and
two (2) years for his sexual battery conviction. These sentences were to be served concurrently. The
trial court made the following ruling at the conclusion of the sentencing hearing:


                  In terms of enhancing factors, I do think there are some that are present, those
         being - - and the initial one, I’m placing minimal weight on, because that being the
         previous history of criminal convictions, and in addition criminal behavior, i.e., the
         prior drug usage; but that - - the reason I’m saying I’m placing minimal weight on
         that is that occurred a number of years ago.

                 The other one that I think though is present is that the Defendant abused a
         position of private trust in this particular case, in that he wouldn’t’ve been in the
         house and wouldn’t’ve been roaming through the house, but for his relationship with
         the parties there, including these children and the victim in this particular case.

                 So, I don’t think the event that the Jury’s found occurred would’ve occurred,
         would’ve been able to be accomplished, but for his position that he had with this
         particular family, including the victim.

                 So, that enhancement factor is present; and the Court places more weight on
         that than the other one.

                  In terms of the mitigating factors, I don’t think the first one that was argued,
         about causing or threatened serious bodily injury, is present because of - - there’s not
         a serious bodily injury, so there’s - - it’s not caused; but I don’t think, where you
         appear in someone’s bedroom while the victim was asleep, and there was minimal
         attempts - - I mean, she wasn’t able to get him off of her, according to her testimony -
         - but I don’t think that, when you appear under those circumstances and the minimal

         2
          W e note that the Tennessee Supreme Court has determined that despite the ability of trial judges to set
sentences above the presumptive sentence based on the finding of enhancement factors neither found by a jury nor
admitted by a defendant, Tennessee’s sentencing structure does not violate the Sixth Amendment and does not conflict
with the holdings of Blakely v. W ashington,___ U.S. ___ , 124 S. Ct. 2531 (2004), United States v. Booker, ___ U.S.
___, 125 S. Ct. 738 (2005), or United States v. FanFan, the case consolidated with Booker, because “the Reform Act
[of Tennessee] authorizes a discretionary, non-mandatory sentencing procedure and requires trial judges to consider the
principles of sentencing and to engage in a qualitative analysis of enhancement and mitigating factors . . . all of which
serve to guide trial judges in exercising their discretion to select an appropriate sentence within the range set by the
Legislature.” State v. Gomez,___ S.W .3d ___, No. M2002-01209-SC-R11-CD, 2005 W L 856848, at *27 (Tenn. Apr.
15, 2005).



                                                          -7-
       struggle there was, because of the positioning, him on top of her, that that means that
       there was not the potential threat of something worse happening than did.

               In terms of the unusual circumstances and whether or not he had the intent to
       violate the law, I would agree that there are unusual circumstances.

                And, you know, there was mention in testimony about smelling alcohol and -
       - but there wasn’t much more proof than that, in terms of whether that’s what brought
       this conduct about or not.

               But I don’t think that rises to the level of preventing Mr. Martin - - which the
       Jury’s here and found that he committed this particular events (sic) - - that that shows
       that he - - was unlikely that he sustained intent to violate the law.

               I mean, if your - - go up the stairs, seek out this child there in the bedroom,
       and get up on top of her with her pants down, then that (sic) pretty good indication
       that there was some intent to do something that was against the law.

               In terms of the catch-all, I’ve already weighed in his minimal record. And
       everyone’s supposed to not violate the law. I understand his family support and that
       he’s providing - - has in the past provided child support.

               And, if that falls under the catch-all, I think that would be given minimal
       weight, as well, because, again, that’s something that should be done. And, maybe,
       it’s due some minimal weight; and I’ll factor that in, as well.

               Based on those factors, the Court is going to impose, as to Count One, a ten-
       year sentence; as to Count Two, a two-year sentence; to run concurrent. There’s no
       basis for these to be run any other way.

               That would prevent his eligibility for probation, which I’m - - wouldn’t be
       inclined to grant anyway, because of the serious nature of this offense, i.e., a
       personal, violent assault, anal intercourse, and a battery - - sexual battery on top of
       that.


       It is clear that the trial court followed the sentencing procedure set out in the sentencing
guidelines. Therefore, there is a presumption of correctness for the sentence imposed by the trial
court. The defendant was convicted of rape under Tennessee Code Annotated section 39-13-503.
Rape is a Class B felony. The sentencing range is eight (8) to twelve (12) years. Sexual battery is
found at Tennessee Code Annotated section 39-13-505. It is a Class E felony that has a sentencing
range one (1) years to two (2) years for a Range I Standard Offender.



                                                 -8-
        The trial court applied two (2) enhancement factors. Tennessee Code Annotated section 40-
35-114(2), the defendant has a previous history of criminal convictions, and Tennessee Code
Annotated section 40-35-114(16), the defendant abused a position of private trust. The trial court
specifically stated that it placed more weight on enhancement factor (16) to enhance the sentence.
The trial court then stated that it was a mitigating factor that the crime occurred under unusual
circumstances and “whether or not [the defendant] had the intent to violate the law,” which would
fall under Tennessee Code Annotated section 40-35-113(3). The trial court also applied the “catch-
all” mitigating factor found at Tennessee Code Annotated section 40-35-113(13) for the defendant’s
support of his family and children. However, the trial court stated that these mitigating factors would
be given minimal weight in sentencing.

         As stated above, the weight given to each factor is left to the discretion of the trial court as
long as it comports with the sentencing principles and purposes of our code and as long as its
findings are supported by the record. Santiago, 914 S.W.2d at 125. We have reviewed the record
in this case and find that the record supports the trial court’s determination as to the weight to be
afforded the mitigating factors. For this reason, this issue is without merit.

                                           CONCLUSION

        For the foregoing reasons, we affirm the judgments of the trial court.


                                                        ___________________________________
                                                        JERRY L. SMITH, JUDGE




                                                  -9-
