        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs May 10, 2016

                 STATE OF TENNESSEE v. GUY B. BERNAL

                  Appeal from the Circuit Court for Maury County
                      No. 19492    Stella L. Hargrove, Judge


                No. M2015-01489-CCA-R3-CD – September 26, 2016
                       _____________________________

A Maury County jury found the Defendant, Guy B. Bernal, guilty of rape. The trial court
sentenced the Defendant as a Range I offender to twelve years in the Tennessee
Department of Correction. On appeal, the Defendant asserts that: (1) his right against
self-incrimination was violated when the trial court did not conduct a proper Momon
hearing; (2) the convicting evidence is insufficient; and (3) his twelve-year sentence is
excessive. After a thorough review of the record and applicable law, we affirm the trial
court‟s judgment.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which NORMA
MCGEE OGLE and TIMOTHY L. EASTER, JJ., joined.

Jacob J. Hubbell, Columbia, Tennessee, for the appellant, Guy B. Bernal.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior
Counsel; Brent A. Cooper, District Attorney General; and Daniel J. Runde, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

       In February 2010, a Maury County grand jury indicted the Defendant for the rape
of his stepdaughter (“the victim”). At the trial on the charge, the parties presented the
following evidence: The victim testified that on November 28, 2009, she lived at a
residence on Kristen Street with her mother, five-year old brother, and step-father, the
Defendant. She said that she was thirteen at the time of the incident. She recalled that
she had been sick on Thanksgiving and woke up still sick the following day, Friday,
November 27, 2009. The victim “laid around” most of the day due to her illness and did
not leave her home. She said that the Defendant arrived home from his work at Cracker
Barrel at around 5:00 p.m., changed out of his work clothes, and began drinking beer.

        The victim testified that at around 8:00 p.m., she took a shower and dressed in a
bra, t-shirt, fuzzy pajama pants, and socks. She confirmed that she was not wearing
underwear. After her shower, the victim lay on the couch in the living room and watched
television. The victim said that the Defendant was seated on the couch next to her,
drinking beer. At some point, the victim‟s mother and brother went to the master
bedroom to go to sleep for the night. The victim recalled that her mother told her to sleep
in her brother‟s downstairs bedroom, so she would not have to go to her bedroom
upstairs.

       The victim testified that the pallet in the living room was for her brother. She
explained that her brother had difficulty falling asleep, and her mother had asked her to
lie down next to her brother on the pallet to try to help him fall asleep. The victim,
however, remained on the couch while her mother and brother lay on the pallet until her
mother decided to go to bed. The victim then went to her brother‟s room and was falling
asleep when the Defendant came in the room and told her that her mother wanted her to
go lie on the pallet in the living room. The Defendant then picked the victim up and
carried her to the living room. He placed her on the pallet where she watched television
until she fell asleep. The victim estimated that the Defendant retrieved her from her
brother‟s bedroom at around 11:00 p.m. and that she watched television for fifteen
minutes before falling asleep in the living room.

        The victim testified that while she was asleep in the living room, the Defendant
removed her pajama pants and performed oral sex on her. She said that she awoke during
this incident but pretended to be asleep because she was scared. Her mother walked into
the room from the master bedroom and began yelling at the Defendant. The victim said
that her mother told her to put on her pants and go into the master bedroom. The victim‟s
mother came into the master bedroom, closed the door, and called the police. The victim
recalled that the Defendant knocked on the bedroom door and said, “Don‟t make a big
deal out of it,” or something to that effect.

       The victim testified that the police arrived, and she remained in the master
bedroom. At some point she was taken to the hospital for an examination, and the police
collected the clothing she had been wearing at the time of the incident.

      C.B., the victim‟s mother, testified that she and the Defendant were married in
March 2003. Before they married, she worked at Home Depot, and the Defendant
worked as a subcontractor and installed doors and windows for Home Depot. In 2002,

                                            2
she, the Defendant, the victim, and the Defendant and C.B.‟s son moved to the residence
on Kristen Street.

        C.B. testified that the day after Thanksgiving 2009, she and the victim were both
sick. She said that the Defendant went to work that day, November 27, 2009, while she
and her children stayed home resting due to illness. She could not recall the specific time
that the Defendant returned home from work but said that it was dark and “maybe 7:00 or
8:00” p.m. When the Defendant arrived home, he went over to the laptop computer
located in the “alcove off the kitchen.” She said the Defendant‟s “normal habit” was to
drink two or three Fosters beers each night.

        C.B. testified that, at some point, the Defendant put blankets and pillows on the
floor to try to help their son wind down for the night. At some point that night, the victim
took a shower and then returned to the couch. C.B. said that she told the victim to sleep
in her brother‟s room because she was sick. C.B. was lying on the floor with her son, but
she could not get him to sleep because the television was too loud. She said that she took
her son into the master bedroom to get him to sleep and closed the door. C.B. recalled
that she could not sleep due to throat pain so she got up and exited the bedroom to
retrieve aspirin. She estimated that this was twenty to thirty minutes after she had taken
her son into the master bedroom. When she exited the bedroom, she saw the victim,
unclothed from the waist down, lying on her back with her legs up and the back of the
Defendant‟s head between the victim‟s legs. She said that she yelled at the Defendant,
“What are you doing anyways?” The Defendant responded saying, “Don‟t make a big
deal.”

       C.B. testified that she sent the victim to the master bedroom and that she and the
Defendant went to their son‟s room to talk. She asked the Defendant how long “this” had
been going on, and the Defendant once again responded, “Don‟t make a big deal out of
it.” C.B. told the Defendant to go outside and smoke and when he did, she went to the
master bedroom, closed the door, and called 911. C.B. asked the victim about what had
occurred, and the victim stated that she did not know, that she was asleep. C.B. told the
victim what she had seen, and the victim said that she felt sick and went to the bathroom.

       C.B. testified that the Defendant came to the bedroom door, knocked, and told her
that she did not want to make a big deal out of this “and you know what I‟m talking
about.” The police arrived shortly thereafter.

       C.B. identified a letter the Defendant sent her from jail in July 2010. She read a
portion of the letter aloud as follows:


                                             3
      This is [the Defendant‟s] concise statement of the night and the morning of
      his arrest. I worked two jobs that day and got home late. I drank several
      beers that night, as I always do. I laid down on my living room floor no
      more than 20 feet from my wife, who is a very light sleeper. My autistic
      son, [ ], was asleep on my side of the bed. I laid close to the bedroom door,
      so I could hear my alarm in the morning. I had a double shift the next day.
      I am also hard of hearing. So while I was laying [sic] on my living room
      floor, drunk and asleep, my stepdaughter, [the victim], came onto me and
      took advantage of me. A detailed statement will be given via a polygraph
      machine. The results and all of my notes will be forwarded to the ACLU of
      Tennessee in an attempt to obtain their legal assistance, per my
      correspondence, my case warrant, their agencies dependent.

       Eric Pinkerton, a Spring Hill Police Department officer, testified that in the early
morning hours of Saturday, November 28, 2009, he was dispatched to a residence located
on Kristen Street. He arrived at the residence at 1:33 a.m., and he and Officer Michael
Biggs, who arrived at the same time, knocked on the front door. After several minutes,
the Defendant opened the door. Officer Pinkerton stepped inside the residence into the
foyer area of the home and asked the Defendant about the reason for the request for the
police, and the Defendant stated he had “no clue why [they] were there.”

       Officer Pinkerton testified that, from the foyer of the residence, he observed a
“makeshift bed or pallet” on the living room floor. He recalled that Officer Biggs
interviewed the victim and the victim‟s mother, C.B., in a separate room outside the
Defendant‟s presence. While Officer Biggs interviewed the others, Officer Pinkerton
remained in the foyer speaking with the Defendant. The Defendant told Officer
Pinkerton that he had been sleeping when the victim‟s mother “came in” and
“overreacted.” Officer Pinkerton then asked the Defendant “how do you overreact to
sleeping?” To which the Defendant responded that the victim‟s mother was “crazy.”
Officer Pinkerton asked the Defendant if he could have been doing anything that could
have been misconstrued, and the Defendant did not answer. Officer Pinkerton testified
that he advised the Defendant of his Miranda rights and that the Defendant said he did
not have anything else to say.

       On cross-examination, Officer Pinkerton testified that the Defendant appeared to
be awake when he answered the door and did not show any signs of intoxication. He
recalled that the house was dimly lit, but he maintained that the Defendant appeared
“more coherent” than someone who had been awakened by the knocking on the door.
Officer Pinkerton estimated that he advised the Defendant of the Miranda rights
approximately ten minutes after he entered the residence and that he was in the residence
for approximately forty-five minutes. Officer Pinkerton testified that he then placed the
                                            4
Defendant in a police vehicle, where the Defendant remained for approximately thirty
minutes before transport to the Maury County jail.

       Michael Biggs, a Spring Hill Police Department officer, testified that shortly after
his entry into the house on Kristen Street, Corporal Kennedy arrived. Corporal Kennedy
and Officer Biggs went to the master bedroom of the house with the victim and her
mother. The victim‟s mother told the officers about what had occurred. Officer Biggs
said that the victim was crying and told officers that she had been asleep and did not
know what had occurred. Officer Biggs returned to the entryway and asked the
Defendant about what had occurred at the residence to cause the police to be summoned.
The Defendant stated, “To save anymore further embarrassment, whatever she said I did,
I did.” Officer Pinkerton then escorted the Defendant from the house. Officer Biggs
remained on the scene until detectives arrived to assume the investigation.

       Geoff Betts, a Spring Hill Police Department officer, testified that he first spoke
with the Defendant at the police department at around 2:00 a.m. on November 28, 2009.
The Defendant declined to provide a statement and requested an attorney. Sergeant Betts
then went to the Kristen Street residence at approximately 2:30 a.m., where he spoke with
the crime scene technician about the evidence to be collected. He stated that, while there,
he observed a make-shift pallet on the floor of the living room. When he left the
residence, he contacted Detective Lovett and asked if she would assist with the interview
of the victim and the rape kit at the hospital. Sergeant Betts then proceeded to the Maury
County Sheriff‟s Department to swear out a warrant for the Defendant‟s arrest. Sergeant
Betts testified that after obtaining the warrant, he went to Maury Regional Hospital where
he spoke with the victim‟s mother, C.B.

       On cross-examination, Sergeant Betts testified that he did not consider whether the
physical contact was initiated by the victim based upon C.B.‟s statement that she walked
into the living room and saw the Defendant‟s “face in her daughter‟s crotch.” She told
Sergeant Betts that the Defendant was holding the victim‟s legs up in the air. Sergeant
Betts said that the victim was thirteen years old and the Defendant in his forties at the
time of this incident. He said that when he attempted to speak with the Defendant about
his “side of the story,” the Defendant declined.


        Charles Hardy, a Tennessee Bureau of Investigation (“TBI”) special agent,
testified that he conducted testing on the sexual assault collection kit related to this case.
Testing of the vaginal swab did not reveal the presence of semen; however, there was a
limited amount of alpha-amylase, which indicated that saliva could be present. Agent
Hardy explained that body fluids other than saliva contain amylase but that a positive
screening for alpha-amylase was a “good indicator” that there was the presence of saliva.
                                              5
       After this proof, the State rested and the Defendant recalled Sergeant Betts.
Sergeant Betts testified that he met with the Defendant briefly at the Spring Hill Police
Department, and then the Defendant was transported to the Maury County Jail. The
video recording taken inside the police vehicle where the Defendant was placed after he
was removed from the residence was played. Sergeant Betts agreed that the Defendant
did not appear to be agitated or upset. According to the time stamp on the recording, an
officer got into the vehicle with the Defendant after approximately thirty-two minutes,
and Sergeant Betts estimated that the drive time to the police department was ten
minutes. The time stamp on the recording indicated that the Defendant remained in the
police vehicle for an additional twenty minutes after arriving at the police department.

        Sergeant Betts testified that, at the time he met with the Defendant at the police
department, he was aware that an officer had told the Defendant his Miranda rights;
however, he advised the Defendant again of these rights. Sergeant Betts said that when
he advised the Defendant that he was being charged with rape, the Defendant showed no
emotion. Based upon the video recording time stamp, the Defendant was inside the
police department for roughly five minutes before being returned to the vehicle and
transported to the Maury County Jail. Sergeant Betts agreed that, in total, based upon the
video recording, it appeared that the Defendant was handcuffed in the back of the police
car for an hour and fifteen minutes. During this time, the Defendant was either humming,
looking around, or appeared to be asleep.

       On cross-examination, Sergeant Betts stated that when he met with the Defendant
at the police station, the Defendant did not appear to be intoxicated. He confirmed that
the Defendant appeared to be alert and oriented when he spoke with Sergeant Betts.

       The Defendant testified that several days to a week before the alleged rape
occurred, he developed a rash due to an allergic reaction to an antibiotic. To help
alleviate the symptoms of the allergic reaction, the Defendant took fifty milligrams of
Benadryl which left him “loopy and cloudy in the head.” During this time, he also
worked two jobs. One job was remodeling a residence in Spring Hill, and the other job
was as a server at Cracker Barrel.

       The Defendant testified about the events of the day leading up to the alleged rape.
He said that he worked out in the morning and then went to his job remodeling. He
briefly returned home for a shower and then went to his job at Cracker Barrel for the 5:00
p.m. shift. He stated that he was normally released from his shift between 8:30 and 9:30
p.m. After leaving work, he said it was likely he picked up beer and a movie on the way
home. He said his normal routine was to “wind down” at night with a beer while
watching a movie. He estimated that he arrived home at approximately 10:00 p.m. He
                                            6
recalled that C.B. and their son were sick. He sat down on the couch and drank a beer
while watching the movie. C.B. and their son were lying on a pallet on the floor. He did
not recall how many beers he drank that night but estimated that it was likely three.

        The Defendant testified that, at some point, C.B. took their son into the master
bedroom and returned briefly to ask the Defendant to lower the volume on the television.
The Defendant explained that he had difficulty with his hearing, so he normally kept the
television volume high. C.B. returned to the bedroom and closed the door to shut out the
noise from the television. The Defendant said that he was alone in the living room and,
at some point, “would have taken [his] Benadryl.” In recalling the evening, the
Defendant said, “I would have watched this movie. And when the movie ended, it would
have been time for me to go to sleep.” He said that he was seated on the couch while
watching the movie.

       The Defendant testified that “[a]t some point” the victim “was now on the living
room floor sleeping on this pallet.” The Defendant stated that he did not remember how
the victim got from her brother‟s bedroom to the living room pallet. He said that the
victim always slept in her bedroom, and he did not know why she was sleeping in her
brother‟s room. He then stated, “And how she got to the living room, the only thing I can
think of is she asked me if she could. And was it uncommon for her to ask me to carry
her? No.”

       The Defendant testified that when he went into the master bedroom, his son was
asleep in the bed with his wife. He did not want to disturb his son so he set his alarm to
wake him for work the following morning and went back to the living room. The
Defendant said that he considered sleeping on the floor of the master bedroom at the foot
of the bed but did not because C.B. had difficulty with her vision at night, and he was
afraid she might step on him. The Defendant said that he left the bedroom door open so
he could hear the alarm in the morning and lay down on the pallet next to the victim. The
Defendant then described the events that led to his arrest as follows:

      The next thing that I remember is somebody is taking my right hand, and
      again somebody - - at this point, I don‟t know who was doing this; and it is
      all happening in a foggy, dream state. Somebody is taking my right hand to
      take off their pant bottoms. So the right hand is taking it off, and their leg
      is pulled out; and then they take my hand, and the left side is taken off. . . .

             ....

           So then this person moves from where they are on the side. They
      move themselves to my side above my head. At this point, they reach
                                             7
      down with their left and, and they take my hand, and place it on the back of
      their leg. That would be the thigh area. So that hand is placed on the thigh
      area. Again, I‟m not doing anything. I‟m just - - they took my hand and
      placed it on the thigh. . . .

             ....

      . . . It was like a dream, but like I was a spectator watching my body being
      manipulated. . . .

             ....

      . . . And this person then reached up and took my head, and lowered my
      head down and onto them. . . . At no time did I know or was aware that this
      was really, really taking place, or who was - - or who was doing this. . . .

             ....

      . . . None of this was voluntary. None of them was of my own volition.
      Then they shook my head; and when they shook my head, I started to lift
      the hair that was on my mouth. And then it wasn‟t even but a few moments
      after that, that my ex-wife is standing over me and [the victim], and saying
      - - screaming, which I understand - - screaming, “What are you doing to
      [the victim]?” And like a surge of electricity went through my body, and I
      jumped to my feet.

       The Defendant testified that C.B. told him to go outside to smoke, and so he did.
When he returned, he spoke with C.B. He said that he told her “not to make a big deal
out of this” because he was beginning to realize that “what took place was [the victim],”
and he thought C.B. was going to embarrass the victim. C.B. then told the Defendant to
go smoke another cigarette, and he again complied. When he returned, he lay down on
the pallet and fell asleep to be later awoken by the police knocking on the front door.

       The Defendant testified that he was “out of it” when speaking with the police
officers, so he asked for an attorney. He stated that he “knew that it was [the victim] who
had done what had taken place thus far” but was unable to explain to the police what
“was going on” because he “wasn‟t at that very moment able to grasp what was going
on.” He described C.B. as “barking down in [his] face,” so he told police, “Whatever she
said was going on, was going on.” He reiterated that he was “incoherent” from the
alcohol and medication. He vaguely remembered some of the events of the rest of the
evening, but he remembered with clarity waking the next morning in a jail cell. He stated
                                            8
that he had “no idea that [his] stepdaughter was not going to tell what really happened”
and was focused on notifying his employer that he would be “running late.”

        The Defendant testified that, on the night of November 29, 2009, “[e]very bit of”
the sexual contact that occurred between him and the victim, the victim initiated. The
Defendant stated that he was not “okay” with what had occurred and would have stopped
it if he was “able to stop” it. The Defendant speculated that the victim may have been
acting out due to marital conflict between him and C.B. over financial issues.

       On cross-examination, the Defendant agreed that C.B. did correctly “see what she
saw” when she exited the bedroom. He agreed that his mouth was on the victim‟s
vaginal area but clarified that it was the victim who placed his face there. The Defendant
maintained that it was the victim who “sexually assaulted” him. The Defendant agreed
that one of the scenarios he believed would explain the victim‟s conduct was that she
“sexually attack[ed] . . . [him] to keep [him] from leaving the home.” The Defendant said
that he could not remember all of the events of the night because of his altered state. He,
however, recalled with clarity that he did not tell the victim that her mother was
“confused” and wanted the victim to go back into the living room. He stated that the
victim asked his permission to return to the living room as she had done “many, many,
many other times before.” He confirmed that he was “real sure” about how the victim
returned to the living room.

       On redirect examination, the Defendant clarified that his mouth was not on the
victim‟s vagina but only “on hair.”

      The State re-called the victim, and she testified that she did not remove her pajama
bottoms or use the Defendant‟s hands to do so. She denied manipulating the Defendant‟s
hand and mouth. She confirmed that she felt the Defendant‟s mouth on her vagina.

       Based upon this evidence, the jury convicted the Defendant of rape. The trial
court sentenced the Defendant as a Range I offender to twelve years in the Tennessee
Department of Correction. It is from this judgment that the Defendant appeals.

                                       II. Analysis

       On appeal, the Defendant asserts that: (1) his right against self-incrimination was
violated when the trial court did not conduct a proper Momon hearing; (2) the convicting
evidence is insufficient; and (3) his twelve year sentence is excessive.

                                   A. Momon Hearing

                                            9
       The Defendant asserts that his Fifth Amendment right against self-incrimination
was violated because the trial court failed to properly advise him, pursuant to Momon v.
State, 18 S.W. 3d 152 (Tenn. 1999),that the jury could not draw any inferences from a
decision not to testify. The State responds that a Momon colloquy is not required when a
Defendant elects to testify, and the record reflects that the Defendant‟s decision to testify
was knowing and voluntary.

       Whether the Defendant‟s constitutional rights were violated is a question of law,
and, as such, we review it de novo. See State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001).
Tennessee recognizes that defendants have a right to speak on their own behalf at trial.
Momon at 161. Moreover, only a defendant may waive the right to testify and such a
waiver may not be inferred or presumed, but instead it must be openly explored. Id. at
161-62. To prove that a defendant‟s right to testify is not violated, the defense counsel
should request a hearing outside the presence of the jury to demonstrate the defendant‟s
waiver of the right to testify has been “knowing[ly], voluntari[ly], and intelligent[ly]”
made. Id. at 162. No “particular litany” need be used; however, defense counsel must at
a minimum show:
       the defendant knows and understands that:

       (1) the defendant has the right not to testify, and if the defendant does not
       testify, then the jury (or court) may not draw any inferences from the
       defendant‟s failure to testify;

       (2) the defendant has the right to testify and that if the defendant wishes to
       exercise that right, no one can prevent the defendant from testifying;

       (3) the defendant has consulted with his or her counsel in making the
       decision whether or not to testify; that the defendant has been advised of
       the advantages and disadvantages of testifying; and that the defendant has
       voluntarily and personally waived the right to testify.

Id.     These procedures are “prophylactic measures which are not themselves
constitutionally required.” Id. at 163. Therefore, failure to follow the guidelines will not
be enough to show that a defendant was deprived of the constitutional right to testify “if
there is evidence in the record to establish that the right was otherwise personally waived
by the defendant.” Id.

      On appeal, the Defendant contends that the procedural guidelines enumerated in
Momon were not followed. As the State correctly notes, however, the Defendant did not
waive his right to testify. Our Supreme Court has declined to extend the requirement of a
Momon hearing in cases where a defendant elects to testify as is the case herein. Mobley
                                             10
v. State, 397 S.W.3d 70, 91 (Tenn. 2013). The trial court, although not required,
conducted a Momon hearing and advised the Defendant that he did not have to testify.
The Defendant confirmed that he had discussed the decision whether to testify or not with
his attorney. The trial court then made the specific finding that the Defendant had made
the decision to testify “free and voluntary, with no coercion, force or duress.” The
transcript supports this conclusion. The Defendant is not entitled to relief as to this issue.

                              B. Sufficiency of the Evidence

       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
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. Grace, 493 S.W.2d 474, 476 (Tenn.1973). The Tennessee Supreme
Court stated the rationale for this rule:

                                             11
       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).

       Rape is the unlawful sexual penetration of a victim by the defendant by force or
coercion. T.C.A. § 39-13-503(a)(1) (2014). Coercion includes “the use of parental,
custodial or official authority over a child less than fifteen (15) years of age.” T.C.A. §
39-13-501(1) (2014).       The statutory definition of “sexual penetration” includes
cunnilingus as relevant to this case. Id. at 39-13-501(7).

        The evidence, viewed in the light most favorable to the State, showed that the
Defendant, the victim‟s stepfather, retrieved the sleeping victim from her brother‟s
bedroom after the other members of the family had gone to bed and were behind a closed
door. He laid the victim on a pallet on the living room floor, removed her pants and
performed oral sex on the thirteen-year-old victim. C.B., the victim‟s mother, exited the
master bedroom to get aspirin and observed the victim, with her pants off, lying on her
back with her legs up. She saw the back of the Defendant‟s head between the victim‟s
legs with his mouth on the victim‟s vagina. The Defendant does not contest these facts,
rather, he asserts that he was forced by the victim to commit this act which the victim
denied. The jury heard the Defendant‟s version of the events when he testified at trial as
well as the victim‟s account. As stated above, questions concerning the credibility of the
witnesses are resolved by the trier of fact. Bland, 958 S.W.2d at 659. The jury by its
verdict accredited the testimony of the victim. This Court does not second-guess the
weight, value, or credibility afforded to the evidence by the jury. Therefore, we conclude
that the State presented sufficient evidence to support the Defendant‟s conviction for
rape.

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                                      C. Sentencing

       As his final issue on appeal, the Defendant asserts that his sentence is excessive.
Appellate review of sentences is under the abuse of discretion standard with a
presumption of reasonableness. State v. Bise, 380 S.W.3d 682, 708 (2012); see also State
v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012). A finding of abuse of discretion
“„reflects that the trial court‟s logic and reasoning was improper when viewed in light of
the factual circumstances and relevant legal principles involved in a particular case.‟”
State v. Shaffer, 45 S.W.3d 553, 555 (Tenn. 2001) (quoting State v. Moore, 6 S.W.3d
235, 242 (Tenn. 1999)).

       To find an abuse of discretion, the record must be void of any substantial evidence
that would support the trial court‟s decision. Id.; State v. Grear, 568 S.W.2d 285, 286
(Tenn. 1978); State v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980). In the
context of sentencing, as long as the trial court places the sentence within the appropriate
range and properly applies the purposes and principles of the Sentencing Act, this Court
must presume the sentence to be reasonable. Bise, at 704-07. As the Bise Court stated,
“[a] sentence should be upheld 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.” Id. at 708. We are also to recognize that the defendant bears
“the burden of showing that the sentence is improper.” State v. Ashby, 823 S.W.2d 166,
169 (Tenn. 1991).

        In determining the proper sentence, the trial court must consider: (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 Tennessee Code
Annotated sections 40-35-113 and -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 made in the defendant‟s own behalf
about sentencing. See T.C.A. § 40-35-210 (2014); State v. Taylor, 63 S.W.3d 400, 411
(Tenn. Crim. App. 2001).

        The Defendant was convicted of rape, a Class B felony. The trial court sentenced
the Defendant as a Range I, standard offender. The sentencing range for a Class B felony
for a standard offender is eight to twelve years. At the sentencing hearing, the trial court
considered the purposes and principles of sentencing in determining a sentence of twelve
years. Notably, the trial court found enhancement factor (14), that the Defendant had
“abused a position of private trust,” and enhancement factor (7), that the offense was
committed to gratify the defendant‟s desire for pleasure or excitement. T.C.A. § 40-35-
                                             13
114(7), (14) (2014). The trial court also relied on the Defendant‟s lack of remorse and
his insistence that the victim was the perpetrator of the offense in ordering a twelve-year
sentence.

       The Defendant specifically challenges the trial court‟s application of enhancement
factor (7), that he committed the offense to gratify his desire for pleasure or excitement.
He contends that the State failed to “provide additional objective evidence of the
defendant‟s motivation to seek pleasure or excitement through sexual assault,” as
required by State v. Arnett, 49 S.W.3d 250, 252 (Tenn. 1993). In determining the
sentence, the trial court noted the circumstances surrounding the assault, the manner of
the penetration, the location of the sexual act, and the timing. The Defendant waited until
the other family members had gone to bed before carrying the victim to the living room,
mere feet from the master bedroom door where his son and his wife were asleep, to
perform oral sex on his thirteen-year-old step-daughter. The trial court properly
considered these circumstances in evaluating the Defendant‟s motive for committing the
offense.

       The trial court considered the relevant principles and sentenced the Defendant to a
within-range sentence. Based on the evidence at trial, the sentence imposed on the
Defendant was not excessive, and the trial court did not abuse its discretion.
Accordingly, we conclude that the Defendant is not entitled to relief.

                                     III. Conclusion

      In accordance with the aforementioned reasoning and authorities, we affirm the
judgment of the trial court.


                                                 _________________________________
                                                 ROBERT W. WEDEMEYER, JUDGE




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