         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              Assigned on Briefs April 8, 2008

                 STATE OF TENNESSEE v. MELVIN GOODMAN

                  Direct Appeal from the Criminal Court for Shelby County
                            No. 04-05622    Lee V. Coffee, Judge



                    No. W2007-00956-CCA-R3-CD - Filed October 8, 2008


The defendant, Melvin Goodman, was convicted by a Shelby County jury of one count of rape (Class
B felony) and sentenced to a term of twenty years in the Department of Correction. On appeal, he
raises two issues for our review: (1) whether the evidence is sufficient to support the conviction; and
(2) whether the trial court violated his Sixth Amendment rights by enhancing his sentence on the
basis of judicially determined facts other than prior convictions. Following review of the record, we
conclude that the evidence is sufficient to support the conviction. However, after plain error review,
we conclude that the trial court erred in its application of enhancing factors based upon the holding
in State v. Gomez, 239 S.W.3d 733 (Tenn. 2007) (“Gomez II”), and that it is necessary to vacate the
sentence. Accordingly, the judgment of conviction is affirmed, but the sentence is vacated and the
case is remanded to the trial court for resentencing in compliance with the dictates of Gomez II.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed in Part,
                            Reversed in Part, and Remanded

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which, NORMA MCGEE OGLE and
J.C. MCLIN , JJ., joined.

Robert W. Jones, District Public Defender; Garland Ergüden, Sanjeev Memula, and Harry Sayle,
Assistant Public Defenders, for the appellant, Melvin Goodman.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; William L. Gibbons, District Attorney General; and Carrie Shelton, Assistant District
Attorney General, for the appellee, State of Tennessee.
                                             OPINION

                                       Factual Background

       On the day of the incident, the seventeen-year-old victim, Jennifer Crisler, took her sister’s
boyfriend, Nick Johnson, to Memphis. Johnson requested that she take him to Momma B’s, a
convenience store, and, while there, he got into an altercation with a group of men in the parking lot.
Afterwards, the men left the area, and Johnson requested that the victim take him to the defendant’s
home in order for him to find out where the men who had beaten him up could be found. The victim
complied and drove to the defendant’s home. However, the defendant was not at home, and the two
then proceeded to a local liquor store at Johnson’s request. They later returned to the defendant’s
home and found that he had returned. The victim and Johnson got out of the car, and Johnson
introduced the victim to the defendant. After speaking with the defendant for a few moments,
Johnson suddenly got into the victim’s car and drove away, leaving the victim stranded at the
defendant’s home with no car, purse, or cell phone.

        According to the victim, she sat on the front porch waiting for Johnson to return. While she
remained there for several hours, the defendant was “going back and forth inside” to check on her.
At one point, the victim asked for a glass of water and entered the home with the defendant. While
she sat in the dining room looking at a magazine and drinking her water, the defendant offered her
a marijuana cigarette, which she “took two hits off of.” Afterwards, she returned outside and
continued to wait for Johnson to return. Around dark, the defendant came outside and sat with the
victim. She expressed concern about Johnson and his failure to return. The defendant replied that
he knew where the defendant might be if he had gotten into trouble with the men from Momma B’s.

        At the defendant’s suggestion, the two left his home and walked approximately two blocks
to an abandoned house. The defendant entered the house to search for Johnson, but the victim
remained outside. When she heard the defendant call her name, she took a few steps into the house,
and the defendant grabbed her and led her further into the house. The two searched the house,
including the upstairs, looking for Johnson. After determining that Johnson was not there, they again
walked down the stairs. As they returned to the first floor, the defendant stepped in front of the
victim and put his hand down her pants, inserting his finger in her vagina. The victim, rather than
physically fighting with the defendant, told him “let’s go,” acting as if she was worried about
Johnson and her car. Despite the fact that the victim said “no,” indicating a lack of consent, the
defendant pulled her into a room, even though she was “grasping the door facing with [her] right
hand.” He then removed her pants, pushed her to the ground, and inserted his penis into her vagina.
After he ejaculated, the defendant jumped off the victim and threw her pants at her. The two then
exited the home, with the defendant keeping his arm around the victim and guiding her back to his
house.

       When the two arrived at the defendant’s home, the victim asked the defendant to use his
telephone. When he entered the home to retrieve the telephone, the victim ran to a local business.
Once there, she called her boss and asked him to come and pick her up. The defendant arrived at


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the business a short while later and motioned through the window for the victim to come outside.
When the victim refused, the defendant came inside. He was told to leave by the store clerk, and he
did so.

        The victim’s boss, who had been at the home of the victim’s mother when the victim called,
came to Memphis to get the victim. The victim’s mother also drove to Memphis in a separate car.
When they arrived, the victim got into the car with her boss and a friend and told them what had
occurred. Her mother stated that the victim “looked totally like a nervous wreck.” After the victim
told her what had occurred, she immediately called 9-1-1. The victim was later taken to the rape
crisis center and examined. The examination revealed scratches on the victim’s right arm and the
presence of sperm in the vaginal area. DNA testing revealed that the sperm matched the defendant’s
DNA profile.

         The defendant was indicted by a Shelby County grand jury for one count of rape. Following
a jury trial, the defendant was found guilty as charged. At a subsequent sentencing hearing, the trial
court sentenced the defendant to a term of twenty years as a Range II offender. After the trial court
denied his motion for new trial, the defendant filed the instant timely appeal.

                                               Analysis

        On appeal, the defendant raises two issues for review. First, he contends that the evidence
is insufficient to support the conviction. Second, he asserts that the trial court violated his Sixth
Amendment rights by enhancing his sentence based upon the finding of judicially determined facts
other than prior convictions.

I. Sufficiency of the Evidence

         In considering this issue, we apply the rule that where the sufficiency of the evidence is
challenged, the relevant question for the reviewing court is “whether, after viewing the evidence in
the light most favorable to the [State], 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, 2789 (1979); see also Tenn. R. App. P. 13(e). The scope of our examination of the
evidence is not equivalent to that of the jury’s. In a challenge to the sufficiency of the evidence, this
court does not retry the defendant. We emphasize that our examination in a sufficiency review is
not to revisit inconsistent, contradicting, implausible, or noncredible proof, as these issues are
resolved solely by the jury. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Rather, we look
to the record to determine whether there was substantive probative evidence to support the verdict.
The second inquiry, the question of legal sufficiency, then follows: whether the record contains
evidence from which the jury could have found the essential elements of the crime beyond a
reasonable doubt. Every reasonable hypothesis of innocence need not be dispelled; it is only
necessary that there exists proof which supports the elements of the crime. The State is entitled to
the strongest legitimate view of the evidence and all reasonable inferences which may be drawn
therefrom. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). All questions involving the credibility


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of witnesses, the weight and value to be given to the evidence, and all factual issues are resolved by
the trier of fact. State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). This court will
not reweigh or reevaluate the evidence presented. Cabbage, 571 S.W.2d at 835.

       “A guilty verdict by the jury, approved by the trial judge, accredits the testimony of the
witnesses for the State and resolves all conflicts in favor of the theory of the State.” State v. Grace,
493 S.W.2d 474, 476 (Tenn. 1973). A jury conviction removes the presumption of innocence with
which a defendant is initially cloaked and replaces it with one of guilt so that, on appeal, a convicted
defendant has the burden of demonstrating that the evidence is insufficient. State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982). These rules are applicable to findings of guilt predicated upon direct
evidence, circumstantial evidence, or a combination of both. State v. Matthews, 805 S.W.2d 776,
779 (Tenn. Crim. App. 1990).

        As relevant here, rape is the “unlawful sexual penetration of a victim by the defendant or of
the defendant by a victim accompanied by . . . the following circumstance[]”:

       (2) The sexual penetration is accomplished 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[.]

T.C.A. § 39-13-503(a)(2) (2003).

        The defendant, though conceding that there is some evidence to support his conviction in
light of the testimony of the victim, argues that the proof is not sufficient when properly viewed
against the high standard enunciated in Jackson v. Virginia and Tennessee Rule of Appellate
Procedure 13(e). Essentially, the defendant’s argument is based upon a challenge to the victim’s
credibility. According to the defendant, the victim’s credibility is impaired because she admitted
smoking marijuana with the victim; her “signals” to the defendant were unclear as to her intentions;
she resisted only “by yammering away about Johnson and her automobile”; and the rape examination
revealed no internal injuries, no bruises, and only three superficial scratches on the victim’s arm.

         As previously noted, the scope of our examination of the evidence is not equivalent to that
of the jury’s. Again, in a challenge to the sufficiency of the evidence, this court does not retry the
defendant. The purpose of our examination in a sufficiency review is not to revisit inconsistent,
contradicting, implausible, or noncredible proof, as these issues are “entrusted exclusively to the jury
as the triers of fact.” State v. Oody, 823 S.W.2d 554, 558 (Tenn. Crim. App. 1991). The facts relied
upon by the defendant to support his argument were placed before the jury. It is the jury’s function
to weigh the credibility of witnesses. As evidenced by its finding of guilt, the jury obviously rejected
the defendant’s testimony at trial that the sex was consensual and accredited the testimony of the
State’s witnesses.

        In the light most favorable to the State, the proof at trial overwhelmingly supports the jury’s
verdict. There is no dispute that sexual penetration occurred in this case. The victim specifically


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testified that the defendant, after leading her through the abandoned house, grabbed her, stuck his
hand in her pants, and penetrated her vagina with his finger. She further testified that he pulled her
into a room, removed her pants, pushed her onto the floor, and penetrated her vagina with his penis.
Moreover, the defendant himself admitted the penetration and defended it only upon the ground that
the sex was consensual. However, the victim specifically testified at trial that she said “no” and told
the defendant that she wanted to leave. She testified that she did not consent to the penetration and
that she so informed the defendant. The conflicting testimony was placed before the jury, whose
function it is to evaluate the credibility of witnesses. Based upon the proof presented, we conclude
that the evidence was more than sufficient to support the verdict.

II. Enhancement of Sentence

        Next, the defendant raises, for the first time on appeal, the issue of whether the trial court
erred in its application of various enhancement factors in imposing the maximum sentence,
contending that the enhancement violated his Sixth Amendment rights based upon the holding in
Blakely v. Washington. Initially, we note that the crime for which the defendant was convicted
occurred on April 15, 2004, but he was not sentenced until March 8, 2007. Despite the fact that the
defendant was sentenced after the effective date of the 2005 amendments to our sentencing act, the
amendments are not applicable in this case because the defendant’s crime was committed prior to
the effective date and no waiver of his ex post facto protections is contained in the record. See 2005
Tenn. Pub. Act ch.353 § 18; T.C.A. § 40-35-210 (2006), Compiler’s Notes.

        When an accused challenges the length, range, or the manner of service of a sentence, this
court has a duty to conduct a de novo review of the sentence with a presumption that the
determinations made by the trial court are correct. T.C.A. § 40-35-401(d) (2003); State v. Ashby,
823 S.W.2d 166, 169 (Tenn. 1991). This presumption is “conditioned upon the affirmative showing
in the record that the trial court considered the sentencing principles and all relevant facts and
circumstances.” Ashby, 823 S.W.2d at 169.

         When conducting a de novo review of a sentence, this court must consider: (a) the evidence,
if any, received at the trial and sentencing hearings; (b) the presentence report; (c) the principles of
sentencing and arguments as to sentencing alternatives; (d) the nature and characteristics of the
criminal conduct involved; (e) any statutory mitigating or enhancement factors; (f) any statements
made by the defendant regarding sentencing; and (g) the potential or lack of potential for
rehabilitation or treatment. T.C.A. §§ 40-35-102, -103, -210 (2003); State v. Brewer, 875 S.W.2d
298, 302 (Tenn. Crim. App. 1993). Furthermore, we emphasize that facts relevant to sentencing
must be established by a preponderance of the evidence and not beyond a reasonable doubt. State
v. Winfield, 23 S.W.3d 279, 283 (Tenn. 2000)(citing State v. Poole, 945 S.W.2d 93, 96 (Tenn.
1997)). If our review reflects that the trial court followed the statutory sentencing procedure,
imposed a lawful sentence after having given due consideration and proper weight to the factors and
principles set out under the sentencing law, and made findings of fact that are adequately supported
by the record, then we may not modify the sentence even if we would have preferred a different
result. State v. Pike, 978 S.W.2d 904, 926-27 (Tenn. 1998); State v. Fletcher, 805 S.W.2d 785, 789


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(Tenn. Crim. App. 1991). The appealing party bears the burden of showing that the sentence is
improper. T.C.A. § 40-35-401, Sentencing Comm’n Cmts; see also State v. Arnett, 49 S.W.3d 250,
257 (Tenn. 2001).

        The appropriate sentencing range for a defendant convicted of rape and sentenced as a Range
II offender is twelve to twenty years. T.C.A. § 40-35-112(b)(2) (2003). The presumptive sentence
is the minimum within the range, but the court may adjust the sentence based upon the existence of
applicable enhancement or mitigating factors. T.C.A. 40-35-310(c),(d),(e). In imposing the
maximum sentence in this case, the trial court found the presence of five enhancement factors: (1)
a previous history of convictions or criminal behavior in addition to those necessary to establish the
appropriate range; (2) the offense was committed to gratify the defendant’s desire for pleasure or
excitement; (3) the defendant abused a position of private trust; (4) the circumstances created great
potential for bodily injury; and (5) the defendant was adjudicated to have committed a delinquent
act that would have been a felony if committed as an adult. See T.C.A. § 40-35-114 (2), (8), (16),
(17), (21) (2003). The court also gave “some weight,” pursuant to the “catchall mitigator,” to the
psychological trauma suffered by the defendant based upon his having witnessed his mother’s
suicide when he was a child. See T.C.A. § 40-35-113(13) (2003).

         Initially, the State asserts that the defendant has waived review of his claim based upon his
failure to object to the sentence on Sixth Amendment grounds at the time he was sentenced. At the
time of sentencing in this case, the Tennessee Supreme Court had held that, despite Blakely v.
Washington, 542 U.S. 296, 124 S. Ct. 2531, the Tennessee Criminal Sentencing Reform Act of 1989
did not run afoul of the Sixth Amendment right to jury trial as interpreted in Blakely. State v.
Gomez, 163 S.W.3d 632, 654-61 (Tenn. 2005) (“Gomez I”), vacated and remanded, Gomez v.
Tennessee, ___ U.S. ___, 127 S. Ct. 1209 (2007). On January 22, 2007, the United States Supreme
Court released its decision in Cunningham v. California, 549 U.S. 270, 127 S. Ct. 856 (2007),
holding that California’s sentencing scheme, which had numerous similarities to Tennessee’s
sentencing scheme, did not survive Sixth Amendment scrutiny under Blakely. The Court also
vacated Gomez I and remanded the case for reconsideration in light of Cunningham. On remand,
the Tennessee Supreme Court concluded that a trial court’s enhancement of a defendant’s sentence
on the basis of judicially determined facts other than a defendant’s prior convictions violated a
defendant’s constitutional rights under the Sixth Amendment to the United States Constitution.
Gomez II, 239 S.W.3d at 740. However, the court reaffirmed the holding from Gomez I that a
defendant who failed to challenge this issue prior to appeal waived plenary appellate review of the
sentencing claims. Thus, if the issue is raised for the first time on appeal, as it is in the instant case,
an appellate court’s review is limited to whether the trial court committed plain error in sentencing
the defendant. Id. at 737.

         Rule 52(b) of the Tennessee Rules of Criminal Procedure provides that “[w]hen necessary
to do substantial justice, an appellate court may consider an error that has affected the substantial
rights of an accused at any time, even though the error was not raised in the motion for new trial or
assigned as error on appeal.” In order to constitute “plain error,” the error must satisfy the following
factors:


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       (a)therecordmustcleayestablishwhatocc dinthetrialcourt;(b)acleara unequivocalruleoflawmusthavebeenbrea (c)asubstantialrightofthe
                           rl               urre                        nd                                   ched;
accused must have been adversely affected; (d) the accused did not waive the issue for tactical
reasons; and (e) consideration of the error is ‘necessary to do substantial justice.’

State v. Smith, 24 S.W.3d 274, 282 (quoting State v. Adkisson, 899 S.W.2d 626, 639 (Tenn. Crim.
App. 1994)). “[A]ll five factors must be established by the record before [a reviewing court] will
recognize the existence of plain error, and complete consideration of all the factors is not necessary
when it is clear from the record that at least one of the factors cannot be established.” Id. at 283.
It is the defendant who bears the burden of persuasion to demonstrate plain error. Gomez II, 239
S.W.3d at 737.

         In this case, review of the record clearly establishes the existence of four of the required
factors in this case, as the record establishes what occurred at the sentencing hearing; a clear and
unequivocal rule of law was breached with the application of enhancement factors other than prior
criminal history; a substantial right of the defendant was affected because he was denied his Sixth
Amendment right to a jury trial; and the record fails to reflect waiver for tactical reasons. See id. at
740-42. However, on appeal, the State, while conceding that the court erroneously applied the
enhancement factor with regard to the position of private trust because the record fails to establish
that the relationship between the defendant and the victim “promoted confidence, reliability, or
faith[,]” see State v. Gutierrez, 5 S.W.3d 641, 645 (Tenn. 1999), contends that plain error review is
not necessary to do substantial justice.

         In Gomez II, our supreme court concluded that plain error review of a Blakely infraction was
necessary to do substantial justice in that case. Id. at 742. To make a determination if substantial
justice in this case requires plain error review, we must look at what sentence we might impose on
the basis of the defendant’s prior criminal record. In short, we look at the relative impact on
sentence enhancement for prior criminal history versus the other inappropriately applied
enhancement factors. The defendant concedes that the court properly applied the enhancement factor
for prior criminal history. As noted by the trial court, the defendant has prior convictions of “two
traffic offenses . . . [,] one other conviction for possession of marijuana[,] . . . two convictions for
driving while license revoked, cancelled, suspended[,] . . . [and] some other traffic offenses Class
C misdemeanor offenses[.]” Moreover, the defendant testified at trial that he had been using and
selling marijuana for a long period of time. However, the trial court, in setting the sentence,
specifically stated on the record that he gave “great weight” in his determination of the sentence to
four of the five factors found to apply. Additionally, the trial court found some evidence of
mitigation. Based upon these statements, it is apparent that the erroneously applied factors also had
an impact on the court’s decision to impose the maximum sentence. Additionally, we cannot
conclude that the sentence is supported based upon the record before us. As such, the record
establishes that the defendant was deprived of substantial justice and is, thus, entitled to relief.
Accordingly, the sentence is vacated, and the case is remanded to the trial court for resentencing in
compliance with the dictates of Gomez II.

                                                       CONCLUSION


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        Based upon the foregoing, the judgment of conviction is affirmed. However, the sentence
is vacated and the case remanded for resentencing in compliance with this opinion.




                                                    ___________________________________
                                                    JOHN EVERETT WILLIAMS, JUDGE




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