                                                                                       05/15/2018
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT JACKSON
                          Assigned on Briefs April 3, 2018

         STATE OF TENNESSEE v. ALANDO DESHAUN BROWN

                  Appeal from the Circuit Court for Obion County
                      No. CC-16-CR-59 Jeff Parham, Judge
                     ___________________________________

                          No. W2017-01397-CCA-R3-CD
                      ___________________________________


        On April 1, 2016, the Obion County Grand Jury indicted the Defendant, Alando
Deshaun Brown, on two counts of rape. A jury convicted the Defendant of both counts at
trial. At the sentencing hearing, the trial court merged Count 2 into Count 1 and
sentenced the Defendant to eight years in the Department of Correction, with release
eligibility after service of 100% of the sentence for Count 1. The Defendant filed a
timely motion for a new trial, which the trial court denied. The Defendant filed a timely
notice of appeal, claiming insufficient evidence to support the verdict. Based on the
evidence in the record, we affirm the trial court’s judgments

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., and J. ROSS DYER, JJ., joined.

Joseph P. Atnip, District Public Defender, for the appellant, Alando Deshaun Brown.

Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant
Attorney General; Tommy A. Thomas, District Attorney General; and Jim Cannon,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                       OPINION

                          I. Factual and Procedural History

       The State charged the Defendant with rape of a physically helpless victim in
Count 1, and nonconsensual rape in Count 2. At trial, the State showed that on March 31,
2016, at approximately 5 p.m., the victim, Houston Brummeier, rode his bike to a bar in
Martin to watch a baseball game. After drinking approximately six beers, Mr.
Brummeier met the Defendant for the first time. The two men continued to drink and
discovered Mr. Brummeier’s cousin was a mutual acquaintance. The Defendant invited
Mr. Brummeier to his home that night for a casual gathering he was planning with his
friends. Because Mr. Brummeier only had a bike for transportation, the Defendant
offered to give him a ride to his house in Union City. Mr. Brummeier placed his bike in
the back seat of the Defendant’s car, and they drove to the Defendant’s home. By the
time the two men left the bar, Mr. Brummeier had imbibed approximately six beers and
at least four mixed drinks.

       Once the two men arrived at the Defendant’s home, the Defendant offered Mr.
Brummeier a 40-ounce beer. Two or three additional people arrived at the Defendant’s
home with marijuana. After smoking the marijuana, Mr. Brummeier fell ill and began
vomiting. The Defendant’s friends left, and the Defendant and Mr. Brummeier were
alone in the house. Mr. Brummeier stated that he passed out unconscious and woke up
some time later on the couch.

       Mr. Brummeier testified that when he woke up, his pants were down, and the
Defendant was performing fellatio on him. Mr. Brummeier pushed the Defendant off,
told him to stop, and stated he wanted to go home. When the Defendant got upset, Mr.
Brummeier tried to calm him down, offering to pray with him. After praying together,
the Defendant went back to his room, and Mr. Brummeier went back to sleep on the
couch.

       Mr. Brummeier explained that after the offense, he did not use his phone to call a
friend or to call 9-1-1 because he was afraid the Defendant would hear him on the phone
and kill him. However, Mr. Brummeier conceded that he probably should have stepped
outside to make a phone call for help. Mr. Brummeier also stated that he did not get his
bicycle from the Defendant’s car to leave because the car was locked. When Mr.
Brummeier awoke the next morning, April 1, 2016, he went into the Defendant’s room to
wake him and ask to go home.

       Mr. Brummeier asked the Defendant to drop him off at the Carey Counseling
Center, where they exchanged phone numbers. Mr. Brummeier told his counselor,
Natasha Edwards, about the rape. Ms. Edwards testified that Mr. Brummeier confided in
her about the rape shortly after the Defendant dropped Mr. Brummeier at the counseling
center. Mr. Brummeier’s account of the offense that he related to her was essentially the
same as his testimony. However, Mr. Brummeier testified that he sometimes had
“problems with [his] memory” in general.



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       Mr. Brummeier then reported the offense to Union City Police Department Officer
Chucky Moran on the evening of April 1. The next day, the Union City Police
Department called the Defendant and asked him to come to the police station after work.
When the Defendant arrived, he declined to make a statement before speaking with an
attorney.

       At trial, the Defendant’s account of the evening mirrored Mr. Brummeier’s in
many ways, with a few material distinctions. First, the Defendant testified that he was
unaware that Mr. Brummeier had been ill after smoking marijuana and denied knowing
that Mr. Brummeier had passed out. It was the Defendant’s testimony that he gave Mr.
Brummeier a blanket so he could sleep on the couch, went to his own room, and fell
asleep alone. He asserted that the offense never occurred and that he was asleep the
whole time. Finally, the Defendant testified that after handing Mr. Brummeier a blanket
for the couch, he didn’t see Mr. Brummeier again until the next morning when Mr.
Brummeier called his name to wake him.

       Based on this evidence, the jury convicted the Defendant on both counts of rape,
which the trial court merged into one count at sentencing. The trial court sentenced the
Defendant to eight years in the Department of Correction, with release eligibility after
service of 100% of the sentence. The Defendant now timely appeals the trial court’s
judgments.

                                        II. Analysis

       In this appeal, the Defendant contends that the evidence presented at trial was
insufficient to sustain his convictions for rape. The State argues that the jury as the finder
of fact determined the credibility of Mr. Brummeier’s testimony, and therefore there is
sufficient evidence to sustain the convictions.


        Our standard of review for a sufficiency of the evidence challenge is “whether,
after viewing the evidence in the light most favorable to the prosecution, 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 (1979) (emphasis in original); see also Tenn. R.
App. P. 13(e). Questions of fact, the credibility of witnesses, and weight of the evidence
are resolved by the fact finder. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). This
court will not reweigh the evidence. Id. Our standard of review “is the same whether the
conviction is based upon direct or circumstantial evidence.” State v. Dorantes, 331
S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.
2009)) (internal quotation marks omitted).

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       A guilty verdict removes the presumption of innocence, replacing it with a
presumption of guilt. Bland, 958 S.W.2d at 659; State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982). The defendant bears the burden of proving why the evidence was
insufficient to support the conviction. Bland, 958 S.W.2d at 659; Tuggle, 639 S.W.2d at
914. On appeal, the “State must be afforded the strongest legitimate view of the evidence
and all reasonable inferences that may be drawn therefrom.” State v. Vasques, 221
S.W.3d 514, 521 (Tenn. 2007). “A jury verdict approved by the trial judge accredits the
testimony of the witnesses for the State and resolves all conflicts in favor of the State’s
theory.” State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983).

       At the time of the offense, rape was defined as the “unlawful sexual penetration …
of the defendant by a victim” which occurs “without the consent of the victim and the
defendant knows or has reason to know at the time of the penetration that the victim did
not consent[,]” or where the Defendant “knows or has reason to know that the victim is
… physically helpless[.]” Tenn. Code Ann. § 39-13-503(a)(2)-(3) (2016). “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) (2016).
“Physically helpless” is defined as “a person [who] is unconscious, asleep or for any
other reason physically or verbally unable to communicate unwillingness to do an act[.]”
Tenn. Code Ann. § 39-13-501(5) (2016).

       In challenging the sufficiency of the evidence, the Defendant points to facts which
he alleges undermine Mr. Brummeier’s credibility. First, the Defendant argues that Mr.
Brummeier could have used his phone to call a friend or 9-1-1 for help if he had been
raped. The Defendant also contends that Mr. Brummeier could have “walk[ed] away” if
he had been raped, even though his bicycle was locked in the Defendant’s car. Further,
the Defendant states that if Mr. Brummeier had actually been raped, he would not have
chosen to wake his rapist and ask for a ride, nor would he have given his phone number
to his rapist. Finally, the Defendant takes issue with Mr. Brummeier’s delay of a few
hours before reporting the offense to police.

       Considering the record in the light most favorable to the State, we conclude that
the evidence is sufficient to establish both that the Defendant was sexually penetrated by
Mr. Brummeier without his consent, and that the Defendant knew or had reason to know
that Mr. Brummeier did not consent. We also conclude that the evidence is sufficient to
establish that the Defendant knew or had reason to know that Mr. Brummeier was
physically helpless at the time of penetration. “The credibility of the witnesses, the
weight to be given their testimony, and the reconciliation of conflicts in the evidence are
matters entrusted exclusively to the jury as the triers of fact.” State v. Cribbs, 967
                                           -4-
S.W.2d 773, 793 (Tenn. 1998). Because this is a case of incompatible accounts, the jury
had to make a credibility assessment between the Defendant and Mr. Brummeier. The
jury determined that Mr. Brummeier was a more credible witness than the Defendant, and
this court will not reweigh that determination. Because Mr. Brummeier was unconscious
at the time the Defendant commenced fellatio, he was physically helpless by definition,
and he could not have consented. Therefore, the evidence established the elements of the
crime and supports the jury’s verdict.

        The trial court “correctly reflected the merged convictions on two separate
uniform judgment documents” and by doing so “maintain[ed] the integrity of each of the
jury’s dual verdicts and accurately reflect[ed] the merger for purposes of appellate review
and collateral challenges to the conviction.” State v. Berry, 503 S.W.3d 360, 365 (Tenn.
2015). However, the “best practice is for the trial court to impose a sentence on each
count and reflect the sentence on the respective uniform judgment document.” Id. After
imposing the sentence, the trial court should note in the “Special Conditions” box of the
uniform judgment document of the count being merged, just as the trial court did in this
case, that the count is merged with another count. Id.

                                     III. Conclusion

      Based on the foregoing analysis, we affirm the judgments of the trial court.


                                             ____________________________________
                                             ROBERT L. HOLLOWAY, JUDGE




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