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

                  STATE OF TENNESSEE v. JAMES MOORE

                 Appeal from the Criminal Court for Shelby County
                  No. 1400576        James C. Beasley, Jr., Judge
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               No. W2015-01483-CCA-R3-CD - Filed August 23, 2016
                     ___________________________________


The defendant, James Moore, was convicted of one count of rape of a child, a Class A
felony, and one count of aggravated sexual battery, a Class B felony, and sentenced in
each case, as a Range II offender, to forty years confinement. The court merged the Class
B aggravated sexual battery conviction into the Class A rape of a child conviction. On
appeal, the defendant argues, as to each conviction, that the evidence was insufficient to
sustain the conviction and the sentence was excessive. Following our review, we
conclude that the arguments are without merit as to the conviction for rape of a child and
affirm the judgment for that conviction. As for the conviction for aggravated sexual
battery, we conclude that the evidence is sufficient to sustain the conviction but remand
for an amended judgment because the sentence imposed for that offense exceeds the
range available for a Range II offender.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed in
    part, Reversed in part, and Remanded for entry of an amended judgment.

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

Stephen Bush, District Public Defender; Harry E. Sayle III (on appeal) and Timothy J.
Albers (at trial), Assistant Public Defenders, for the appellant, James Moore.

Herbert H. Slatery III, Attorney General and Reporter; James E. Gaylord, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Katie Ratton,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                       OPINION
                            Facts and Procedural Background

       The victim testified that she was eight years old at the time of trial and that the
defendant was her uncle. When she was six years old, the defendant lived with the victim
and her family. According to the victim, the defendant did not have a room and would
sleep on the couch. It was during this time that the defendant sexual abused the victim on
several occasions.

       The victim testified that the defendant would wake her up in the middle of the
night and force her to perform fellatio on him. According to the victim, the defendant
would ejaculate in her mouth and then make her spit it out in the toilet and flush it. Then,
the defendant would give her candy.

        The victim recalled a specific incident that occurred on Halloween night.
According to the victim, her parents had a Halloween party at their house that evening for
the kids. As the party ended, all the children were watching a movie in the living room
and the victim ended up falling asleep on the couch. At some point during the night, the
defendant woke the victim and made her perform fellatio on him. As this was occurring,
the victim‟s mother, S.G.1 entered the room. When she did, the defendant told the victim
not to say anything to her mother.

       S.G. testified that the defendant, his girlfriend, and his girlfriend‟s children lived
with her family from June – November 2012. According to S.G., their home only had
three bedrooms so the girls had a room, the boys had a room, she and her husband had a
room, and they made the computer room, which was off the living room, a bedroom for
the defendant and his girlfriend.

       On Halloween night, S.G. and her husband had a party for the kids at their house
because they did not want the children to go trick-o-treating. When S.G. went to bed that
evening, the children were in the den watching a movie. Around 3:00 a.m., S.G. woke up
because her husband was sick, and she went to the living room to sleep on the couch. As
S.G. entered the living room, the “defendant‟s head popped up” from the couch and
shortly after that the “victim‟s head popped up” as well. S.G. then noticed the victim
wipe her mouth with the back of her hand.

       Fearing the worst, S.G. picked the victim up and immediately took her to her
room. Once there, S.G. asked the victim what happened in the living room. In response,
the victim told her mother that she did not want to talk about his and to go ask the
defendant if she wanted to know. After hearing this response, S.G. immediately left 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.
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house with the victim and drove her to Lebonhuer Children‟s Hospital. On the drive,
S.G. also called the police.

       When S.G. and the victim arrived at the hospital, the police were waiting on them.
After the officer spoke privately with S.G., he instructed her to speak with the victim
again and see if she would open up. S.G. testified that it was during this second
conversation that the victim admitted to her that the defendant would “stick his pee-pee in
my mouth.” After informing the police of the victim‟s statement, S.G. took the victim to
the Memphis Sexual Assault Resource Center (“MSARC”).

      Sally Discenza, an expert in the field of forensic pediatric nursing, testified that
she was called to MSARC in the early morning hours of November 1, 2012, to interview
and conduct a physical examine of the victim. Ms. Discenza testified that she took DNA
swabs from the victim‟s mouth and vaginal area.

       While the victim was being examined at MSARC, the defendant, who had been
detained by the police, was examined by Kristine Gable, a certified sexual assault nurse
examiner. Ms. Gable testified that she took DNA swabs from the defendant‟s cheek,
penis, scrotum, and pubis.

        The final witness to testify at trial was Special Agent Samantha Spencer. Agent
Spencer, an expert in DNA testing, testified that she examined and tested the DNA swabs
taken from the victim and the defendant. Agent Spencer‟s testing of the swabs taken
from the victim did not produce the presence of semen. However, her testing of the
swabs from the defendant‟s penis revealed a mixture of the DNA of two individuals.
According to Agent Spencer, the defendant was the major contributor to the mixed
profile and the victim was the minor contributor to the profile. Because of the small
amount of DNA present, Agent Spencer was only able to match four of the sixteen loci
when she compared the mixture to the victim‟s DNA standard. According to Agent
Spencer, “the probability of randomly selecting an unrelated individual who would be
included as a contributor to this DNA mixture profile is approximately one in nineteen
for the African American population.” Agent Spencer concluded her testimony stating
that, in her expert opinion, the victim‟s “DNA was, in fact, on the defendant‟s penile
swab.”

       At the conclusion of Agent Spencer‟s testimony, the State rested. The defendant
rested without presenting proof. The jury subsequently found the defendant guilty of
rape of a child and aggravated sexual battery.

       At a subsequent sentencing hearing, the presentence report and certified copies of
the defendant‟s six prior felony convictions were entered into evidence. The parties did
not present any additional proof. Based upon the information contained in the
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defendant‟s pre-sentence report, the evidence introduced establishing the defendant‟s
prior record, and the arguments of the parties, the trial court determined that the
defendant should be classified as a Range II offender.2 The court then determined that
the appropriate sentence for each conviction was a term of forty years. The trial court
also concluded that the defendant‟s conviction for “aggravated sexual battery is an
alternative theory for the same offense, therefore, the Court will merge Count 2
[aggravated sexual battery] into Count 1 [rape of a child] for the purposes of sentencing.”

       This appeal followed. On appeal, the defendant argues the evidence was
insufficient to justify a rational trier of fact from finding him guilty of either offense
beyond a reasonable doubt. The defendant further argues the trial court imposed an
excessive sentence. The State argues the evidence was sufficient to sustain the
defendant‟s conviction for rape of a child, and the trial court properly sentenced the
defendant. We agree with the State and affirm the judgment of the trial court.

                                           Analysis

       I.     Sufficiency of the Evidence

       The defendant argues that the evidence is insufficient to sustain his conviction. He
contends that the victim‟s trial testimony conflicts with her actions immediately after the
rape and that the forensic evidence is insufficient. The State responds that the evidence is
sufficient.

       When an accused challenges the sufficiency of the evidence, this Court‟s standard
of review is whether, after considering 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 (1979); see Tenn. R.
App. P. 13(e); State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid,
91 S.W.3d 247, 276 (Tenn. 2002)). This standard applies to findings of guilt based upon
direct evidence, circumstantial evidence, or a combination of both direct and
circumstantial evidence. State v. Pendergrass, 13 S.W.3d 389, 392–93 (Tenn. Crim.
App. 1999) (citing State v. Dykes, 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990)). In the
absence of direct evidence, a criminal offense may be established exclusively by
circumstantial evidence. Duchac v. State, 505 S.W.2d 237, 241 (Tenn. 1973). “The jury
decides the weight to be given to circumstantial evidence, and „[t]he inferences to be
drawn from such evidence, and the extent to which the circumstances are consistent with

       2
          While the trial court correctly found the defendant to be a Range II offender based on
his prior record, we would also note that, pursuant to Tenn. Code Ann. § 39-13-522, a person
convicted of rape of a child “shall be punished as a Range II offender.” Tenn. Code Ann. § 39-
13-522(b)(2)(A).
                                             -4-
guilt and inconsistent with innocence, are questions primarily for the jury.‟” State v.
Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (quoting Marable v. State, 313 S.W.2d 451, 457
(Tenn. 1958)). “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, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265,
275 (Tenn. 2009)).

       In determining the sufficiency of the evidence, this Court should not re-weigh or
reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App.
1990). Nor may this Court substitute its inferences for those drawn by the trier of fact
from the evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999) (citing Liakas v.
State, 286 S.W.2d 856, 859 (Tenn. 1956)). “Questions concerning the credibility of
witnesses, the weight and value to be given the evidence, as well as all factual issues
raised by the evidence are resolved by the trier of fact.” State v. Bland, 958 S.W.2d 651,
659 (Tenn. 1997). “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. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978), superseded by statute
on other grounds as stated in State v. Barone, 852 S.W.2d 216, 218 (Tenn. 1993))
(quotations omitted). The Tennessee Supreme Court stated the rationale for this rule:

       This well-settled rule rests on a sound foundation. The trial judge and the
       jury see the witnesses face to face, hear their testimony and observe their
       demeanor on the stand. Thus the trial judge and jury are the primary
       instrumentality of justice to determine the weight and credibility to be
       given to the testimony of witnesses. In the trial forum alone is there human
       atmosphere and the totality of the evidence cannot be reproduced with a
       written record in this Court.

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d
523, 527 (Tenn. 1963)). This Court must afford the State of Tennessee the “„strongest
legitimate view of the evidence‟” contained in the record, as well as “„all reasonable and
legitimate inferences‟” that may be drawn from the evidence. Goodwin, 143 S.W.3d at
775 (quoting State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). Because a verdict of
guilt against a defendant removes the presumption of innocence and raises a presumption
of guilt, the convicted criminal defendant bears the burden of showing that the evidence
was legally insufficient to sustain a guilty verdict. State v. Carruthers, 35 S.W.3d 516,
557–58 (Tenn. 2000) (citations omitted).

       Tennessee Code Annotated defines the crime of rape of a child as “the unlawful
sexual penetration of a victim by the defendant . . . if such victim is less than thirteen (13)
years of age.” Tenn. Code Ann. § 39–13–522(a) (2014). “Sexual penetration” is defined
as “sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion,
                                           -5-
however slight, of any part of a person‟s body . . . into the genital or anal openings of the
victim‟s . . . body, but emission of semen is not required.” Tenn. Code Ann. § 39–13–
501(7) (2014).

       The evidence, considered in the light most favorable to the State, showed that the
defendant moved in with the victim and her family in June 2012. According to the
victim, the defendant, on more than one occasion, would come into her room and force
her to perform fellatio on him to the point that he would ejaculate. The victim recalled
one specific incident that occurred Halloween night. According to the victim, she fell
asleep on the couch that evening. As in the past, the defendant woke her in the middle of
the night and forced her to perform fellatio on him. However, this time, the victim‟s
mother entered the room. According to the S.G., the “defendant‟s head popped up” from
the couch when she entered followed shortly by the victim‟s. She also noticed the victim
wipe her mouth with her hand when the victim came up from the couch. While she did
not initially confide in her mother, the victim eventually told S.G. that the defendant
“would stick his pee-pee in her mouth.” Finally, DNA testing found the presence of the
victim‟s DNA on the defendant‟s penis. This evidence is sufficient to show that the
defendant unlawfully penetrated the then six-year old victim when he forced her to
perform fellatio on him.

       Concerning the defendant‟s claim that the victim‟s testimony was inconsistent
with the fact that she refused to initially implicate the defendant and his claim that the
forensic evidence was weak, such are questions of weight to be assigned evidence and
credibility determinations are soundly within the purview of the trier of fact and not this
Court. By finding the defendant guilty of rape of a child, it is clear that jury resolved any
inconsistency in the victim‟s testimony in favor of the State and found the forensic
evidence sufficient to corroborate the victim‟s testimony. Again, it is not for this Court
to second-guess the credibility and factual determinations made by the trier of fact. Thus,
the defendant is not entitled to relief on this claim.3

       II.    Sentencing

       The defendant argues that the sentence imposed was excessive. While he does not
take issue with the manner in which the trial court reached its sentencing determination,
the defendant contends that a forty-year sentence for a thirty-seven year old man
“amounts to a life sentence for him” and, therefore, exceeds the limit for the presumption
of reasonableness. The State responds that the defendant‟s sentence is presumptively
reasonable because it is within the range and is supported by the purposes and principles


       3
          Applying the same reasoning, we conclude that the evidence is sufficient, as well, to
sustain the defendant‟s conviction for aggravated sexual battery.
                                             -6-
of the sentencing guidelines. After reviewing the record before this Court, we agree with
the State.

        When an accused challenges the length, manner, or range of a sentence, this Court
will review the trial court‟s decision under an abuse of discretion standard with a
presumption of reasonableness. State v. Pollard, 432 S.W.3d 851, 860 (Tenn. 2013);
State v. Bise, 380 S.W.3d 682, 706 (Tenn. 2012). This Court will uphold the trial court‟s
sentencing decision “so long as it is within the appropriate range and the record
demonstrates that the sentence is otherwise in compliance with the purposes and
principles listed by statute.” Bise, 380 S.W.3d at 709–10. Moreover, under those
circumstances, we may not disturb the sentence even if we had preferred a different
result. See State v. Carter, 254 S.W.3d 335, 346 (Tenn. 2008). The party appealing the
sentence has the burden of demonstrating its impropriety. Tenn. Code Ann. § 40–35–
401, Sent‟g Comm‟n Cmts.; see also State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

        In imposing a sentence, the trial court must also consider the following factors: (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 enhancement and mitigating factors; (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 by the defendant in his
own behalf. Tenn. Code Ann. § 40–35–210(b). In addition, the principles of sentencing
provide that the sentence should be no greater that that deserved for the offense
committed and should be the least severe measure necessary to achieve the purposes for
which the sentence is imposed. See Tenn. Code Ann. § 40–35–103(2), (4). To provide
meaningful appellate review, the trial court must state on the record its reasons for the
sentence chosen. Tenn. Code Ann. § 40-35-210(e).

         “[A] trial court is free to select any sentence within the applicable range so long as
the length of the sentence is „consistent with the purposes and principles of [the
Sentencing Act.‟” Carter, 254 S.W.3d at 343 (quoting Tenn. Code Ann. § 40–35–
210(d)). The trial court shall consider, but is not bound by, the provision that “[t]he
minimum sentence within the range of punishment is the sentence that should be imposed
. . . [and] should be adjusted, as appropriate by the presence or absence of mitigating and
enhancement factors.” Tenn. Code Ann. § 40–35–210(c); Carter, 254 S.W.3d at 346. A
non-exclusive list of mitigating and enhancement factors are provided in Tennessee Code
Annotated sections 40–35–113 and –114. The weighing of both mitigating and
enhancement factors is left to the trial court‟s sound discretion, but a trial court‟s
misapplication of a mitigating or enhancement factor will not remove the presumption of
reasonableness from its sentencing determination. Bise, 380 S.W.3d at 709.

                                             -7-
       In this case, the trial court conducted a lengthy analysis of the relevant sentencing
considerations and the applicable mitigating and enhancement factors. The defendant
does not challenge the trial court‟s application of six enhancement factors: that the
defendant has a previous history of criminal convictions or criminal behavior in addition
to those necessary to establish the appropriate range, Tenn. Code Ann. § 40–35–114(5);
that the victim of the offense was particularly vulnerable because of age or physical or
mental disability, id. at –114(4); that the offense was committed to gratify the defendant‟s
desire for pleasure or excitement, id. at –114(7); that the defendant before trial failed to
comply with conditions of a sentence involving release in the community, id. at –114(8);
that the defendant was on parole at the time the offense was committed, id. at –114(13);
and that Defendant abused a position of public or private trust, id. at –114(14). The trial
court also considered, as mitigation proof, “the defendant‟s prior upbringing and the
impact that that may have or have had on his decisions in life.” While the trial court gave
varying weights to each enhancement factor, the application of a single enhancement
factor is sufficient to justify the imposition of the maximum sentence in the range, even
when mitigating factors are also applied. See, e.g., State v. James Taylor, Jr., No.
W2006–02085–CCA–R3–CD, 2007 WL 3391433, at *6 (Tenn. Crim. App. Nov. 14,
2007), no perm. app. filed. In addition to the enhancement and mitigating factors
discussed above, the trial court also noted:

       Again, this Court is going to put by far the greatest emphasis on the fact
       that Mr. Moore has an extensive history of criminal convictions and
       behavior. And what‟s more frightening and more concerning to the Court
       is that that history is all sex offenses and a large majority of it appears to be
       with children.

       Mr. Moore may not legally qualify as a sexual predator but in this Court‟s
       opinion he is a sexual predator and that he is a danger to children in this
       community and other communities. He is a danger to women but more
       particularly female children.

       The defendant‟s sentence for rape of a child is within the appropriate range and the
record reflects that the trial court adequately considered the purposes and principles of
sentencing. See Bise, 380 S.W.3d at 709–10. Thus, the defendant is not entitled to relief
from that sentence. However, because aggravated sexual battery, as charged in Count II,
is a Class B felony and the appropriate sentencing range is twelve to twenty-five years,
that conviction is remanded for entry of an amended judgment reflecting a sentence
within that range.




                                             -8-
                                       Conclusion

              Based on the foregoing authorities and reasoning, we affirm the defendant‟s
convictions for rape of a child and for aggravated sexual battery as well as his forty year
sentence for rape of a child. However, because aggravated sexual battery, as charged in
Count II, is a Class B felony and the appropriate sentencing range is twelve to twenty-
five years, that conviction is remanded for entry of an amended judgment reflecting a
sentence within that range.


                                             ____________________________________
                                            J. ROSS DYER, JUDGE




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