        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs August 6, 2013

               STATE OF TENNESSEE v. RAYMOND DENTON

                 Appeal from the Criminal Court for Shelby County
                        No. 11-02711    Chris Craft, Judge


              No. W2012-01686-CCA-R3-CD - Filed December 10, 2013


Following a jury trial, Defendant, Raymond Denton, was convicted of aggravated rape, in
violation of Tennessee Code Annotated section 39-13-502; aggravated burglary, in violation
of Tennessee Code Annotated section 39-14-403; and physical abuse of an impaired person,
in violation of Tennessee Code Annotated section 71-6-119. The trial court sentenced
Defendant as a career offender for each conviction to sixty (60) years for aggravated rape,
fifteen (15) years for aggravated burglary, and fifteen (15) years for physical abuse of an
impaired person. The sentences were ordered to be served consecutively to each other for
an effective sentence of ninety (90) years. In this appeal, Defendant does not challenge any
of the sentences imposed, and does not challenge the convictions for aggravated burglary and
physical abuse of an impaired person. Defendant’s sole issue is a challenge to the legal
sufficiency of the evidence to support his conviction of aggravate rape, limited to the
argument that there was insufficient proof establishing the element of penetration. After a
thorough review of the record and the briefs, we affirm the judgments of the trial court.

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

T HOMAS T. W OODALL, J., delivered the opinion of the Court, in which J OHN E VERETT
W ILLIAMS and C AMILLE R. M CM ULLEN, JJ., joined.

Stephen C. Bush, District Public Defender; Harry E. Sayle, III, Assistant Public Defender;
William Yonkowski, Assistant Public Defender; and Robert Felkner, Assistant Public
Defender; Memphis, Tennessee, for the appellant, Raymond Denton.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; Amy P. Weirich, District Attorney General; Jennifer Nichols, Assistant District
Attorney General; and Eric Christiansen, Assistant District Attorney General, for the
appellee, the State of Tennessee.
                                          OPINION

         When an accused challenges the sufficiency of the convicting evidence, the appellate
court determines “whether, after reviewing 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); State v. Rogers,
188 S.W.3d 593, 616 (Tenn. 2006); see also Tenn. R. App. P. 13(e). On appeal, “the State
is entitled to the strongest legitimate view of the evidence and to all reasonable and legitimate
inferences that may be drawn therefrom.” State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000).
The trier of fact resolves all questions of witness credibility, the weight and value of the
evidence, as well as all factual issues raised by the evidence. See State v. Pappas, 754
S.W.2d 620, 623 (Tenn. Crim. App. 1987). The appellate court does not re-weigh or re-
evaluate the evidence. See State v. Evans, 108 S.W.3d 231, 236 (Tenn. 2003).

       The trial court’s approval of the jury’s verdict accredits the State’s witnesses and
resolves all conflicts in the evidence in the State’s favor. See State v. Moats, 906 S.W.2d
431, 433-4 (1995).

       “Because a verdict of guilt removes the presumption of innocence and imposes a
presumption of guilt, the burden shifts to the defendant upon conviction to show why the
evidence is insufficient to support the verdict.” State v. Thacker, 164 S.W.3d 208, 221
(Tenn. 2005). These rules apply whether the verdict is predicated upon direct evidence,
circumstantial evidence, or a combination of both. State v. Dorantes, 331 S.W.3d 370, 379
(Tenn. 2011); State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999).

      As pertinent to Defendant’s case, the elements of aggravated rape are set forth as
follows:

               39-13-502. Aggravated rape. — (a) Aggravated rape is unlawful
        sexual penetration of a victim by the defendant or the defendant by a victim
        accompanied by any of the following circumstances:

                (1) * * *
                (2) The defendant causes bodily injury to the victim.
                (3) * * *

Tenn. Code Ann. § 39-13-502(a)

       “Sexual penetration” is defined in Tenn. Code Ann. § 39-13-501(7) as,



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        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.

Facts

       We will summarize the evidence presented at trial which is relevant to the specific
issue raised by Defendant in this appeal. Generally, the State’s proof showed that on the
night of November 8, 2010, the 75-year-old victim was at her home watching television when
Defendant broke into her home by kicking in her back door. Defendant demanded the
victim’s money. When told by the victim that she had none, Defendant told her he wanted
to “f***” her. Defendant proceeded to sexually assault the victim for at least two hours. In
the course of this, the victim was injured and as a result required hospitalization. When the
nude Defendant fell asleep, the victim crawled out from underneath him, got to her
telephone, and called 9-1-1. When police arrived shortly thereafter, Defendant was still on
the floor asleep and was handcuffed and taken to jail. The victim was taken to a rape crisis
center and from there to a hospital.

       As to the specific element of sexual penetration, the testimony was as follows.
Memphis police officer Brandon Berry was the first officer to arrive at the scene. After the
nude Defendant, who was asleep on the floor, had been handcuffed and placed into a patrol
car, Officer Berry spoke with the victim. She appeared withdrawn, nervous, scared, frail, and
her hair was out of place. The victim told Officer Berry that Defendant, after breaking into
the house, pulled the victim from the chair in which she sat, took off her clothes and his own
clothes, and began the sexual assault on the floor. She told Officer Berry that Defendant’s
assault went on for a long period of time, and that Defendant was choking and “smothering”
her. Officer Berry testified that the victim said that Defendant tried to put his penis in her
but he “couldn’t get anywhere.”

       The victim testified that she was watching television in her home late on the night of
November 8, 2010. She heard Defendant burst in her locked back door. She did not know
Defendant. He first demanded her money. When she told him she had no money, Defendant
said he wanted the next best thing - he wanted to “f***.”

       Defendant grabbed both of the victim’s arms and threw her on the floor. He removed
her clothing, which was her pajamas, and he removed his own clothes. She testified that
Defendant began “feeling” on her privates. She specifically stated that, “after [Defendant]
pulled my clothes off and throwed me down on the floor, then he had sex with me.”



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Defendant was also choking the victim and she testified she was going “in and out” of
consciousness while defendant choked her.

        The victim testified that Defendant had a difficult time maintaining an erection and
that he would rub his penis on her legs and her private areas when he would lose an erection.
During cross-examination, the victim, 75 years old at the time of the crimes, reiterated that
Defendant was trying really hard to rape her, but he was having a difficult time maintaining
an erection. She clarified that at the point when she was at the rape crisis center, when she
told that Defendant “tried” to rape her, she was unaware that Defendant had in fact raped her.
The victim testified that she knew Defendant had raped her when she found out she “had that
stuff on [my legs].” Further, during cross-examination, Defendant’s attorney asked the
victim, “so [Defendant] couldn’t get his penis in you, could he?” The victim responded,
“Yeah, he did, he would rub me.”

        Frazel Bennett, a registered nurse and one of the victim’s granddaughters, went to the
victim’s home on the night of the crimes after being called by the victim at 3:19 a.m. on
November 9, 2010. She found the victim sitting in her chair in a large pool of blood. The
blood was from the victim’s vaginal area. She and her sister took the victim to the rape crisis
center. Ms. Bennett observed the examination performed on the victim by the nurse
practitioner at the rape crisis center. Ms. Bennett saw a laceration on the victim’s vagina
“down like an episiotomy type of laceration.”

       Sergeant Stephen Wilkerson of the Memphis Police Department interviewed the
victim on November 10, 2010. The victim told Sergeant Wilkerson that Defendant did not
penetrate her, saying Defendant “couldn’t get it in because it wouldn’t stay hard.”

         Judy Pinson, a nurser practitioner employed at the Memphis rape crisis center for
twenty-five years, testified that she performed an examination of the victim, who arrived at
the rape crisis center on November 9, 2010, at 7:30 a.m. Ms. Pinson was permitted to testify
at trial as an expert witness as a forensic nurse practitioner with a specialty in the field of
sexual assault examinations. The victim told Ms. Pinson in general terms what had happened
during the assault, including stating that Defendant had, in Ms. Pinson’s words, “attempted
vaginal penetration.” This was written in Ms. Pinson’s report. Ms. Pinson was unable to use
a speculum to look inside the victim’s vagina due to an attempt to do so was too painful for
the victim. The standard report form did not have a place for the nurse practitioner to place
any expert medical related opinion.

         During Ms. Pinson’s examination of the external area of the victim’s private areas,
she saw a superficial laceration of the labia majora. Also, Ms. Pinson observed a laceration
at least two inches long beginning at the posterior fourchette which extended into the perineal

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area, which she testified was the area between the vagina and the anus. Ms. Pinson noted
that the victim was bleeding from this laceration. The significance of Ms. Pinson’s
observations concerning the two-inch laceration is shown in this excerpt from her direct
examination by the State:

        Q.    Okay. This injury that you described, not the superficial injury to - -
              but the laceration between her vagina or the fourchette, up into the
              perineum, do you have an opinion based on your education,
              thousands of exams that you’ve done, as to whether or how that
              injury was received, what mechanism?

        A.    There was penetration of her vagina. We many times don’t see
              injuries in rapes or sexual assaults. It’s fairly common not to see
              injury. And there aren’t very many things that we can say for sure
              come from a penetrating injury but this is one of them. Injuries to
              the posterior fourchette don’t come from anything else except
              something going into the vagina.

        Q.    Does the fact that Miss Gray gave you a history of attempt
              penetration, did that in any way change your opinion about what had
              happened and what you saw and your conclusions?

        A.    No. Because I don’t have - - I have no knowledge of what
              somebody - - of what somebody’s definition of penetration is. I
              don’t know if - - I don’t know what Mrs. Gray thinks penetration is.
              I don’t know if - -

        Q.    What do you call penetration, because you called this a penetrating,
              something penetrated the vagina?

        A.    Something had to have gone into the vagina to make that kind of
              injury. There’s no other way to get an injury like that.

        Q.    And because you were not able to look inside her, do you have any
              opinion at all about how far the something had to go inside of her to
              cause the tear that was several inches?

        A.    It only has to go in far enough to cause the injury and because that
              area which is the posterior fourchette is the first place that a penis
              would enter or anything would enter that went - - to go inside of her,

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                that’s why we say that that’s - - that’s the only way that you - - that’s
                the only time we see that kind of injury. It’s the first - - the first
                plane of entry to the vagina.

       Defendant did not testify or offer any other proof.

Analysis

        Any intrusion into the vagina, “however slight” is sufficient to meet the statutory
definition of sexual penetration, an essential element of aggravated rape. The victim made
some statements that Defendant attempted to rape her, and a jury could infer from that
statement that no sexual penetration occurred. On the other hand, the victim testified that she
initially believed Defendant had not raped her when she was at the rape crisis center, but she
clarified that she later learned that he did, in fact, rape her. The victim testified that she was
“choked” and “smothered” by Defendant during the sexual assault which she said lasted
about two hours. She testified that she passed “in and out” of consciousness. She was
bleeding from a laceration in her vaginal area. An expert witness conclusively stated that in
her opinion the laceration had to have been caused by penetration of the vagina.

        All of these facts were presented to the jury. Taken in the light most favorable to the
State, there is sufficient evidence of unlawful sexual penetration to sustain Defendant’s
conviction for aggravated rape. As noted above, the jury’s verdict of guilt resolves all
conflicts in the evidence in the State’s favor. Moats, 906 S.W.2d at 433-34. The jury was
entitled to accredit some of the testimony of any witness but discredit other testimony from
the same witness. Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978).

        Defendant is not entitled to relief in this appeal. Accordingly, the judgments of the
trial court are affirmed.


                                                     _________________________________
                                                     THOMAS T. WOODALL, JUDGE




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