        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs May 3, 2016

                STATE OF TENNESSEE v. BRIAN LEE WEBB

                  Appeal from the Circuit Court for Benton County
                     No. 15CR39     C. Creed McGinley, Judge


                No. W2015-01809-CCA-R3-CD - Filed July 27, 2016


The Defendant, Brian Lee Webb, was convicted by a Benton County jury of rape of a
child (Count 1) and aggravated sexual battery (Count 2). He was sentenced to a
concurrent term of forty years‟ confinement for the child rape conviction and twelve
years‟ confinement for the aggravated sexual battery conviction, for an effective sentence
of forty years in the Tennessee Department of Correction (TDOC). On appeal, the
Defendant argues that the evidence is insufficient to sustain his convictions and that the
trial court erred in not considering certain mitigating evidence in sentencing. Because
neither the record nor the judgment reflects service of the aggravated sexual battery
conviction at 100% as mandated by statute, we are compelled to remand Count 2 for
entry of corrected judgment. In all other respects, we affirm the judgments of the trial
court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed;
                   Remanded for Entry of Corrected Judgment

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which ALAN E. GLENN
and J. ROSS DYER, JJ., joined.

Guy T. Wilkinson, District Public Defender; Gary J. Swayne, Assistant Public Defender,
Camden, Tennessee, for the Defendant, Brian Lee Webb.

Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant
Attorney General; Matthew F. Stowe, District Attorney General; and Bruce I. Griffey,
Assistant District Attorney General, for the Appellee, State of Tennessee.

                                       OPINION

      On the morning of November 8, 2014, the Camden Police Department responded
to a 911 call placed by M.I., the victim‟s mother, regarding an incident between the
Defendant and T.I., the six-year-old victim.1 The victim accused the Defendant of
placing his penis inside her mouth and then touching her genital region. Shortly after
police responded to the victim‟s home, the Defendant was arrested and identified by
“eyewitnesses” as the offender. The Benton County Grand Jury subsequently indicted
the Defendant for rape of a child and aggravated sexual battery.

       As relevant to the issues raised by the Defendant in this appeal, the facts adduced
at the June 29, 2015 trial were as follows: The victim testified that on the morning of
November 8, 2014, the Defendant was visiting his girlfriend, a friend of the victim‟s
mother who was staying with the family. The victim was sitting on the living room
couch with her brother and the Defendant when the Defendant asked her to get him a
drink. Shortly after she returned from the kitchen with a glass of Coca Cola, the
Defendant told the victim to “put it up,” and she complied by putting the drink on a shelf.
The Defendant then asked the victim to join him on the couch, which she referred to as
“the bed.” After the victim joined the Defendant on the couch, the Defendant unzipped
his pants, pulled out his penis, and placed his penis in the victim‟s mouth. The victim
told the Defendant to stop, but he did not stop until about a minute later. The Defendant
then put his hand down the victim‟s pants and touched her “private spots.”

       Several other people were inside the house at the time. The victim‟s father and
another man named J.R. were in the dining room. The victim‟s mother, her sister, H.W.,
her sister‟s friend, K.S., and the Defendant‟s girlfriend were in a bedroom folding
clothes.2 The victim told the others what happened shortly after the Defendant stopped
touching her. A family friend told the Defendant to leave, and the victim‟s mother called
911.

       H.W.‟s thirteen-year-old friend, K.S., witnessed the victim bent over the
Defendant‟s lap with a blanket, and noticed the Defendant‟s hand inside the victim‟s
pants. K.S. said the Defendant “jumped back” when she went through the living room
area, and the victim ran. The Defendant was not wearing a shirt and his pants were
unzipped. K.S. said no one else was inside the living room besides the victim and the
Defendant.

      The victim eventually told K.S. and H.W. that the Defendant made her put his
“cup” in her mouth. When K.S. and H.W. asked what the victim meant when she said
“cup,” the victim responded by pointing to her “private area.” K.S. said when the

        1
         It is the policy of this court to protect the anonymity of victims of sex crimes by identifying
them and their relatives by their initials only.
        2
           The victim testified her brother was on the couch with the victim and Defendant watching
television, but she did not specify where her brother was located while the offenses occurred.
                                                  -2-
Defendant was confronted and told to leave, he denied the accusations and acted “like he
didn‟t do anything.”

       H.W., the victim‟s twelve-year-old sister, testified consistently with K.S.‟s
testimony. Additionally, H.W. said the victim was “very scared, and she had tears in her
eyes, and she was very frightened that day like she didn‟t know what just happened, like
she didn‟t know what was going on.”

      Alex Latimer, the chief investigator for the Camden Police Department, testified
that a buccal swab was used to collect deoxyribonucleic acid (DNA) from the
Defendant.3 The Defendant‟s DNA, specifically his semen, was not detected in the
evidence collected from the victim‟s sexual assault exam. There were no allegations that
the Defendant ejaculated or left any semen as the result of his contact with the victim.

       Brandy Tharpe, the Defendant‟s sister, testified that the Defendant was in a car
crash and suffered a “massive head injury” in 2010. She explained the head injury
affected the Defendant‟s memory and made it easier for people to take advantage of him.
The trial court instructed the jury that Tharpe was “not testifying as an expert as to the
effects of any type of injury on any type of behavior.” The Defendant did not testify at
trial. Based on the above proof, the jury convicted the Defendant as charged in the
indictment.

       At the July 23, 2015 sentencing hearing, the trial court enhanced the Defendant‟s
sentenced based on his criminal history, which consisted of two felony convictions of
aggravated assault and evading arrest with risk of death or injury, one misdemeanor
conviction of contributing to the delinquency of a minor, and three misdemeanor theft
convictions. The Defendant was granted diversion in a fourth misdemeanor theft case.
The court also noted the Defendant previously violated the terms of his release into the
community. Specifically, the Defendant was serving the remainder of a four-year
sentence in a community corrections program for his aggravated assault and evading
arrest convictions, which was revoked after he violated curfew and failed to pay court
costs. The court found “nothing in the record, or the testimony at trial, that would
remotely suggest any type of mitigation.” After noting that a person convicted of child
rape is statutorily mandated to serve his or her sentence at 100% as a Range II offender,
the court sentenced the Defendant to forty years at 100% for the child rape conviction
and twelve years at 30% for the aggravated sexual battery conviction.




       3
         Deoxyribonucleic acid, or DNA, carries the unique genetic information of all known living
organisms.
                                               -3-
       The Defendant filed a motion for new trial on August 5, 2015, which the trial
court denied on August 31, 2015. The Defendant filed a timely notice of appeal to this
court on September 10, 2015.

                                            ANALYSIS

       On appeal, the Defendant raises two issues for our review: (1) whether the
evidence was sufficient to support the convictions of child rape and aggravated sexual
battery, and (2) whether the court erred in giving the Defendant the maximum sentence.4
Upon our review, we affirm the convictions. However, we are compelled to remand for
entry of a corrected judgment in Count 2.

       I. Sufficiency of the Evidence. The Defendant first argues that the evidence is
insufficient to sustain his convictions for rape of a child and aggravated sexual battery.
Specifically, he contends that because the State relied solely on the victim‟s testimony to
support the conviction of child rape and because there was no physical evidence to
support the conviction of child rape, a rational trier of fact could not find guilt beyond a
reasonable doubt. The Defendant further argues that the aggravated sexual battery
conviction is undermined by inconsistencies between the victim‟s testimony and the
testimony of K.S., the “only other witness” of the aggravated sexual battery, and by the
Defendant‟s behavior following the incidents. The State responds that the evidence is
more than sufficient to sustain the convictions. We agree with the State.

        When a defendant challenges the sufficiency of the evidence supporting a
conviction, the standard of review applied by this court is “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). Similarly, Rule 13(e) of the Tennessee Rules of
Appellate Procedure states, “Findings of guilt in criminal actions whether by the trial
court or jury shall be set aside if the evidence is insufficient to support the finding by the
trier of fact of guilt beyond a reasonable doubt.” On appeal, the State is entitled to the
strongest legitimate view of the evidence and all reasonable inferences which may be
drawn from that evidence. State v. Davis, 354 S.W.3d 718, 729 (Tenn. 2011) (citing
State v. Majors, 318 S.W.3d 850, 857 (Tenn. 2010)). Because a guilty verdict “removes
the presumption of innocence and raises a presumption of guilt, the criminal defendant
bears the burden on appeal of showing that the evidence was legally insufficient to
sustain a guilty verdict.” State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009).

       4
         We note that defense counsel first submitted his appellate brief on February 10, 2016, but the
brief was stricken from the record for being “woefully inadequate.” Defense counsel submitted an
amended brief which was received and filed on May 6, 2016, the day after the deadline given by this
court.
                                                 -4-
       Guilt may be found beyond a reasonable doubt where there is direct evidence,
circumstantial evidence, or a combination of the two. State v. Matthews, 805 S.W.2d
776, 779 (Tenn. Crim. App. 1990) (citing State v. Brown, 551 S.W.2d 329, 331 (Tenn.
1977); Farmer v. State, 343 S.W.2d 895, 897 (Tenn. 1961)). The standard of review for
sufficiency of the evidence “„is the same whether the conviction is based upon direct or
circumstantial evidence.‟” State v. Dorantes, 331 S.W.3d 370, 370 (Tenn. 2011) (quoting
Hanson, 279 S.W.3d at 275). The jury as the trier of fact must evaluate the credibility of
the witnesses, determine the weight given to witnesses‟ testimony, and reconcile all
conflicts in the evidence. State v. Campbell, 245 S.W.3d 331, 335 (Tenn. 2008) (citing
Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978)). Moreover, the jury
determines the weight to be given to circumstantial evidence and the inferences to be
drawn from this evidence, and the extent to which the circumstances are consistent with
guilt and inconsistent with innocence are questions primarily for the jury. Dorantes, 331
S.W.3d at 379 (citing State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006)). When
considering the sufficiency of the evidence, this court shall not reweigh the evidence or
substitute its inferences for those drawn by the trier of fact. Id.

       Rape of a child, a Class A felony, is defined as “the unlawful sexual penetration of
a victim by the defendant or the defendant by a victim, if the victim is more than three (3)
years of age but less than thirteen (13) years of age.” T.C.A. § 39-13-522(a). Sexual
penetration means “sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other
intrusion, however slight, of any part of a person‟s body or of any object in 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.” Id. § 39-13-501(7). Aggravated sexual battery, a Class B
felony, is defined as “unlawful sexual contact with a victim by the defendant or the
defendant by a victim . . . [where] [t]he victim is less than thirteen (13) years of age.” Id.
§ 39-13-504(a)(4). Sexual contact means “the intentional touching of the victim‟s, the
defendant‟s, or any other person‟s intimate parts, or the intentional touching of the
clothing covering the immediate area of the victim‟s, the defendant‟s, or any other
person‟s intimate parts, if that intentional touching can be reasonably construed as being
for the purpose of sexual arousal or gratification.” Id. § 39-13-501(6). Intimate parts
“includes semen, vaginal fluid, the primary genital area, groin, inner thigh, buttock or
breast of a human being.” Id. § 39-13-501(2).

       In this appeal, the Defendant does not specifically challenge the evidence
establishing the elements of rape of a child or aggravated sexual battery. Instead, he
attacks the credibility of the victim‟s testimony, noting that “there is no physical evidence
to support the conviction” and that portions of the victim‟s testimony conflict with
portions of K.S.‟s testimony in regard to what the Defendant was wearing and the
location of certain people in the victim‟s home.

                                             -5-
       As previously noted, the jury determines the credibility of witnesses and the
weight afforded to the evidence, and we will not reweigh or reevaluate the evidence.
Further, “a jury‟s verdict will not be overturned unless there are inaccuracies or
inconsistencies that „are so improbable or unsatisfactory as to create a reasonable doubt
of the [defendant‟s] guilt.‟” State v. Elkins, 102 S.W.3d 578, 582-83 (Tenn. 2003)
(quoting State v. Radley, 29 S.W.3d 532, 537 (Tenn. Crim. App. 1999)). Moreover, the
testimony of a child victim, alone, is sufficient to uphold a conviction for child rape. Id.;
see also State v. Blunkall, No. M2014-00084-CCA-R3-CD, 2015 WL 500751, at *10
(Tenn. Crim. App. Feb. 5, 2015) (holding that a minor victim‟s testimony was sufficient
despite lack of corroborating evidence, including the defendant‟s semen). Here, the
minor inconsistencies between the victim‟s testimony and K.S.‟s testimony do not create
reasonable doubt. By its verdict, the jury resolved any inconsistencies in the State‟s
favor. Significantly, the trial court noted during sentencing that despite her young age,
the victim was “probably as good a child witness as [he‟s] ever seen. She was able to
give testimony with candor. She was very sound in giving her testimony, probably much
more than [he] would have expected from a six year old, and she was particularly
persuasive, not only to the jury, but to the Court as well.” Viewed in the light most
favorable to the State, we conclude that a rational jury could have found the Defendant
guilty of rape of a child and aggravated sexual battery beyond a reasonable doubt. The
Defendant is not entitled to relief on this issue.

        II. Length of Sentence. The Defendant claims that the trial court erred by
imposing the maximum sentence while not recognizing any factors for mitigation. He
relies on the testimony from his sister noting that he suffered a massive head injury in a
2010 car crash. The Defendant argues that “simply based on lay observation of a close
relative (i.e., sister) . . . there is some suffering of a mental condition that tends to perhaps
reduce culpability. Maybe enough to come off the maximum sentence.” The State
argues the trial court properly sentenced the Defendant and that the Defendant failed to
provide evidence supporting the application of any mitigating factors.

       We review the length and manner of service of a sentence imposed by the trial
court under an abuse of discretion standard with a presumption of reasonableness. State
v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). The misapplication of enhancement or
mitigating factors does not invalidate the imposed sentence “unless the trial court wholly
departed from the 1989 Act, as amended in 2005.” Id. at 706. “So long as there are other
reasons consistent with the purposes and principles of sentencing, as provided by statute,
a sentence imposed by the trial court within the appropriate range should be upheld.” Id.
Therefore, this court reviews a trial court‟s sentencing determinations under “an abuse of
discretion standard of review, granting a presumption of reasonableness to within-range
sentencing decisions that reflect a proper application of the purposes and principles of our

                                               -6-
Sentencing Act.” Id. at 707. The defendant has the burden of showing the impropriety of
the sentence on appeal. T.C.A. § 40-35-401(d), Sentencing Comm‟n Cmts.

      Pursuant to the 2005 amendments to the Sentencing Act, a trial court must
consider the following when determining a defendant‟s specific sentence:

       (1) The evidence, if any, received at the trial and the sentencing hearing; (2)
       The presentence report; (3) The principles of sentencing and arguments as
       to sentencing alternatives; (4) The nature and characteristics of the criminal
       conduct involved; (5) Evidence and information offered by the parties on
       the mitigating and enhancement factors set out in §§ 40-35-113 and 40-35-
       114; (6) Any statistical information provided by the administrative office of
       the courts as to sentencing practices for similar offenses in Tennessee; and
       (7) Any statement the defendant wishes to make in the defendant‟s own
       behalf about sentencing.

T.C.A. § 40-35-210(b)(1)-(7) (2010). In determining the proper sentence, the trial court
must consider the defendant‟s potential for rehabilitation or treatment. Id. §§ 40-35-102,
-103 (2010). In addition, the court must impose a sentence “no greater than that deserved
for the offense committed” and “the least severe measure necessary to achieve the
purposes for which the sentence is imposed.” Id. § 40-35-103(2), (4).

        Rape of a child is a Class A felony, T.C.A. § 39-13-522(b)(1), which carries with
it an automatic minimum Range II sentence between twenty-five to forty years. Id. § 39-
13-522(2)(A). A sentence imposed for a child rape conviction must be served at 100%.
See T.C.A. § 40-35-501(i)(1), (2)(I), (3) (2015). Aggravated sexual battery is a Class B
felony. T.C.A. § 39-13-504(a)(4). A sentence imposed for an aggravated sexual battery
conviction must be served at 100%. See T.C.A. § 40-35-501(i)(1), (2)(H), (3) (2015).
Finally, after being convicted of offenses such as rape of a child and aggravated sexual
battery, a defendant must be placed on the sexual offender registry and subjected to
community supervision for life. See T.C.A. §§ 39-13-524, 40-39-201.

        In this appeal, the Defendant does not claim that the trial court misapplied any
enhancement factors before sentencing him to the maximum effective sentence or any
other aspect of his sentence. Instead, the Defendant challenges the trial court‟s refusal to
consider the Defendant‟s mental condition under Tennessee Code Annotated section 40-
35-113(8). In support of his argument, the Defendant relies upon the trial testimony of
his sister, Brandy Tharpe. At trial, Tharpe testified her brother suffered a massive head
injury as the result of a car crash in 2010, which caused memory loss and made him
“easier to take advantage of than before the head injury.” The Defendant relies
exclusively on Tharpe‟s testimony to suggest he may have a mental condition that
                                             -7-
reduces his culpability, qualifying him for mitigating factor (8). In order for a
defendant‟s mental condition to be considered under section 40-35-113(8), he must
“sufficiently establish not only the presence of the defect, but also a causal link between
his ailment and the offense charged.” State v. Fentress, No. M2011-01505-CCA-R3-CD,
2012 WL 5439027, at *3 (Tenn. Crim. App. Nov. 7, 2002) (citing State v. Robert James
Yoreck, III, No. M2004-01289-CCA-R3-CD, 2003 WL 23613823, at *4 (Tenn. Crim.
App. June 29, 2004)). Here, the Defendant acknowledges Tharpe “is not a medical
expert by any stretch of the imagination.” On its own, Tharpe‟s testimony is insufficient
to establish that the Defendant does in fact suffer from a mental disorder, or that the
alleged mental disorder diminished his culpability when he unzipped his pants, inserted
his penis into the victim‟s mouth, and then touched her genital region. We therefore
conclude that the trial court did not abuse its discretion by not acknowledging Tharpe‟s
testimony as grounds for mitigation.

        The record shows that the trial court expressly articulated its reasoning in support
of imposing the maximum sentences for both offenses, which were within the applied
sentencing ranges, and considered the principles and purposes of the sentencing act. The
trial court found “a host of enhancing factors,” specifically referring to the Defendant‟s
history of criminal convictions and the fact that the Defendant had violated the terms of
his release into the community in the past. For those reasons, and because the trial court
was statutorily mandated to sentence the Defendant as a Range II offender for the child
rape conviction at 100%, we discern no abuse of discretion and affirm the effective
sentence of forty years‟ confinement at 100% by the trial court. However, we are
compelled to remand for entry of corrected judgment in Count 2. As correctly pointed
out in the Defendant‟s brief, the trial court sentenced the Defendant as a Range I offender
for the aggravated sexual battery conviction in Count 2, to be served at 30%. The
judgment in Count 2 also reflects that the twelve-year sentence to be served at 30%.
Aggravated sexual battery is statutorily mandated to be served at 100%. See T.C.A. §
40-35-501(i)(1), (2)(H), (3) (2015); see also Barry C. Melton v. Arvil Chapman, Warden,
No. M2012-00322-CCA-R3-PC, 2013 WL 139561, at *5 (Tenn. Crim. App. Jan. 11,
2013), perm. app. denied (Tenn. May 7, 2013); Roger Brent Banks v. Cherry Lindamood,
Warden, No. W2013-00458-CCA-R3-HC, 2014 WL 217662, at *2 (Tenn. Crim. App.
Jan. 17, 2014) (noting that the 100% release eligibility requirement for the petitioner‟s
aggravated sexual battery offenses should have been noted on the judgment form by a
check of the “Violent 100%” offender box). Accordingly, we remand for entry of
corrected judgment for Count 2. In all other respects, the judgments of the trial court are
affirmed.




                                            -8-
                                       CONCLUSION

       Based on the above authority and analysis, we affirm the convictions and effective
sentence of the trial court, but remand for entry of a corrected judgment in Count 2.



                                                 _________________________________
                                                 CAMILLE R. McMULLEN, JUDGE




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