        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs February 1, 2011

         STATE OF TENNESSEE v. TONY ARNESS DEGRAFFREED

               Direct Appeal from the Circuit Court for Tipton County
                        No. 6226    Joseph H. Walker, Judge


                 No. W2010-00926-CCA-R3-CD - Filed June 28, 2011


A Tipton County Circuit Court jury convicted the appellant, Tony Arness Degraffreed, of
rape of a child, a Class A felony, and the trial court sentenced him to twenty-five years in
confinement to be served at one hundred percent. On appeal, the appellant contends that (1)
the evidence is insufficient to support the conviction, (2) the trial court erred by refusing to
require the jury to determine whether his penetration of the victim was digital or penile, and
(3) the State improperly commented on the appellant’s failure to testify during it closing
argument. Based upon the record and the parties’ briefs, we affirm the judgment of the trial
court.

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

N ORMA M CG EE O GLE, J., delivered the opinion of the Court, in which J ERRY L. S MITH, and
A LAN E. G LENN, JJ., joined.

Clifford K. McGown, Jr. (on appeal), Waverly, Tennessee, and Lyle A. Jones and David S.
Stockton (at trial), Covington, Tennessee, for the appellant, Tony Arness Degraffreed.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney
General; D. Michael Dunavant, District Attorney General; and James Walter Freeland, Jr.,
and Kim Linville, Assistant District Attorneys General, for the appellee, State of Tennessee.

                                          OPINION

                                  I. Factual Background
        A.D.,1 the victim’s mother, testified that she married the appellant in 2005, when the
victim was about seven years old. She and the appellant then had two children together. The
appellant was not the victim’s biological father, but the victim called him “dad.” In
November 2008, A.D., the appellant, and the three children were living in Covington,
Tennessee, and the victim was eleven years old. About 3:00 a.m. on November 15, A.D.
went to bed. Her youngest child, T.D., was in bed with her. The appellant came into the
room, put T.D. in bed with the victim in the victim’s bedroom, and asked A.D. to have sex
with him. A.D. told him no and went back to sleep. A.D. said that about 6:00 a.m., the
victim woke her and told her, “He’s touched me again.” The victim was shaking and scared.
A.D. knew the victim was referring to the appellant, and A.D. was going to ask the appellant
about the victim’s allegations. She said that before she got a chance to ask him, he “started
telling me he didn’t do nothing, he didn’t touch her.” A.D. telephoned the police. A.D. later
spoke with Detective Pamela Ford and told her what had happened. Detective Ford also
talked with the victim. The detective took A.D. and the victim to the Memphis Sexual
Assault Resource Center (MSARC), where a nurse performed a pelvic exam on the victim.
A.D. then took her children to her father’s house and returned to her home with Detective
Ford. Detective Ford arrested the appellant. A.D. said that since the appellant’s arrest, she
had spoken with him several times. At first, the appellant told A.D. he was sorry. Later, he
told A.D. that he did not abuse the victim and that the victim was lying because she did not
like him. A.D. said that although the victim called the appellant “daddy,” the victim and the
appellant never had a close relationship.

       On cross-examination, A.D. acknowledged telling Detective Ford that the victim
claimed that the victim and the appellant were on the floor, that the appellant was on top of
the victim, and that the victim’s panties were pulled down. A.D. said that after the victim
came into A.D.’s bedroom and told her about the abuse, the victim took A.D. into the room;
showed A.D. a towel and pair of panties on the floor; and told A.D., “[H]e tried to touch me.”
A.D. said she did not question the victim at that time but later “went into the details” with
the victim. She said the victim had never accused anyone else of sexual abuse but that the
victim had accused the appellant of touching her while the family lived in Mason, Tennessee,
a couple of years before the appellant’s trial. A.D. said she did not believe the victim at that
time and did not report the victim’s allegations to the police. She said she believed the
victim’s allegations this time because “I saw the expression . . . and the scaredness on her
face.”

    Margaret McCallum testified that she was a sexual assault resource nurse at the
MSARC and interviewed A.D. and the victim on November 15. McCallum said that


       1
         In order to protect the victim’s identity, we have chosen to refer to some of the members of the
victim’s family by their initials.

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according to A.D., the victim woke A.D. and told A.D., “He did it again. He touched me.”
McCallum said the victim also told A.D., “He came in while I was sleeping, and he was on
top of me. . . . My panties was on the floor in the bedroom, on the floor with the towel.”
McCallum said she interviewed the victim. The victim told McCallum that the appellant was
on top of the victim and touched her private part with his private part. McCallum said the
victim also told her, “He did it before when my mom used to go to work at night. Then he
would touch his private part with my private part. Sometimes some white liquidy stuff would
come out of his private part.” McCallum examined the victim and found redness around the
victim’s hymen, which she described as a recent injury, and a tear at the top of the victim’s
hymenal tissue, which she described as a chronic injury. McCallum swabbed just inside the
victim’s vagina and prepared vaginal slides. While looking at the slides under a microscope,
McCallum saw what appeared to be one non-mobile sperm. She said she questioned what
she was seeing and called in another nurse to look at the slide. The second nurse verified the
presence of a sperm. McCallum tested the victim for sexually transmitted diseases, and the
test results were negative. On cross-examination, McCallum testified that the victim did not
say anything about the appellant’s touching or penetrating her with his fingers.

       Detective Pamela Ford with the City of Covington Police Department testified that
about 6:30 a.m. on November 15, she learned about an alleged child rape. She met with A.D.
and the victim at the police department and transported them to the MSARC. After the
victim’s examination, A.D. dropped off her children at a relative’s home. Then Detective
Ford and A.D. went to A.D.’s home, where Detective Ford arrested the appellant. The
appellant waived his rights at the police department and gave the following statement:

                      It was around three o’clock or 3:30 a.m. when I got
              home. I sat up for a while and talked to my wife. I put my other
              two kids in the bed, [K.D.] and [T.D.], to bed. This was around
              5:30 or six o’clock a.m.
                      I put [T.D.] in the bed with [the victim]. [T.D.] asked me
              to lay down with her for a while. I started playing with myself.
              I was high off of weed. I began touching [the victim]. I was
              just rubbing on her private part. When I was rubbing her, my
              fingers went into her. It was the third finger from my thumb, my
              middle finger.
                      [The victim] woke up. I got up and smoked a cigarette,
              and I heard [the victim] telling her mother that I had touched
              her. I told my wife I was sorry, that I didn’t mean to hurt her or
              touch her. I got a problem. I feel like I need help.

Detective Ford said she delivered the victim’s rape kit from the MSARC to the Tennessee

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Bureau of Investigation.

       On cross-examination, Detective Ford testified that the appellant was asleep when she
and A.D. returned from the MSARC. An audio recorder was at the police department during
the appellant’s interview, but Detective Ford did not use it because it was locked in another
office. The appellant never told Detective Ford that he did not abuse the victim. Detective
Ford denied threatening or coercing the appellant.

        Owen Hull, a correctional officer at the Tipton County Jail, testified that in the latter
part of October 2009, the appellant was an inmate at the jail and asked Officer Hull about the
definition of rape. Officer Hull got a dictionary, wrote down the definition, and gave it to
the appellant. He said the appellant looked at the definition and asked, “It isn’t rape, is it,
if I only stuck my finger in her?” On cross-examination, Officer Hull said that he did not
make a written report of the incident until more than one month later on November 30, 2009.

        The then twelve-year-old victim testified that she was born on August 22, 1997. On
the night in question, the victim was in bed with her little sister. The appellant came into the
victim’s bedroom and started pulling the victim’s underwear off while the victim pretended
to be asleep. She said, “He put his private up against mine and he was rubbing it.” She said
his private was hard and did not go inside her private but just rubbed against her. After he
left the room, the victim went into the bathroom and her mother’s bedroom. She woke her
mother and told her mother what had happened. The victim acknowledged that she talked
with Detective Ford, someone at the Carl Perkins Center, and a nurse at the MSARC. The
victim maintained at trial that the appellant’s private did not go inside her private, and the
trial court allowed the State to lead the victim over the appellant’s objection. The State asked
her, “Do you recall telling those people at the Carl Perkins Center that his private kind of
went inside you?” The victim answered, “Yes, I guess.” The victim said she did not lie to
anyone at the Carl Perkins Center.

       On cross-examination, the defense asked the victim, “Did he go inside you?” The
victim answered, “No, sir.”

       Detective Sherri Wassal of the Tipton County Sheriff’s Department testified that on
November 26, 2008, she spoke with the appellant in the Tipton County Jail about a request
he had made for medical treatment. During their conversation, the appellant began talking
about this case. Detective Wassal informed the appellant about his rights, and the appellant
signed a waiver of rights form. The State played a video recording of the appellant’s
statements to Detective Wassal. During the recording, the appellant said that “I want to get
some help for what I done” and that his fingers might have gone inside the victim but that
he did not remember. He asked Detective Wassal if he could live with his wife when he was

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released since “this happened in our home.” The appellant denied sexually abusing the
victim in Mason.

       The jury convicted the appellant of rape of a child, a Class A felony. After a
sentencing hearing, the trial court sentenced him to twenty-five years in confinement to be
served at one hundred percent.

                                         II. Analysis

                               A. Sufficiency of the Evidence

      The appellant contends that the evidence is insufficient to support the conviction
because the State failed to obtain DNA evidence from the sperm found inside the victim and
because the victim testified that the appellant did not penetrate her. The State argues that the
evidence is sufficient. We agree with the State.

        When an appellant challenges the sufficiency of the convicting evidence, the standard
for review by an appellate court is “whether, after viewing 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); see
also Tenn. R. App. P. 13(e). The State is entitled to the strongest legitimate view of the
evidence and all reasonable or legitimate inferences which may be drawn therefrom. See
State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions concerning the credibility
of witnesses and the weight and value to be afforded the evidence, as well as all factual
issues raised by the evidence, are resolved by the trier of fact. See State v. Bland, 958
S.W.2d 651, 659 (Tenn. 1997). This court will not reweigh or reevaluate the evidence, nor
will this court substitute its inferences drawn from the circumstantial evidence for those
inferences drawn by the jury. See id. Because a jury conviction removes the presumption
of innocence with which a defendant is initially cloaked at trial and replaces it on appeal with
one of guilt, a convicted defendant has the burden of demonstrating to this court that the
evidence is insufficient. See State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

        Rape of a child is 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.” Tenn. Code Ann. § 39-13-522(a). “Sexual penetration” is defined as
“sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however
slight, of any part of a person’s body or of any object into the genital or anal openings of the
victim’s, the defendant’s, or any other person’s body, but emission of semen is not required.”
Tenn. Code Ann. § 39-13-501(7). The indictment in this case alleged that the appellant
committed child rape by knowingly penetrating the victim.

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       Taken in the light most favorable to the State, the evidence shows that in the early
morning hours of November 15, 2008, the appellant went into the victim’s bedroom, pulled
down her panties, and got on top of her. The appellant then penetrated the victim’s vagina.
The appellant told Detective Ford and indicated to Officer Hull that he penetrated the
victim’s vagina with his fingers. Although the victim testified that the appellant did not
penetrate her, she acknowledged on direct examination that she told someone at the Carl
Perkins Center that the appellant’s penis “kind of went inside” her vagina. The jury, not this
court, was in the best position to judge the credibility of the witnesses and to decide whether
the appellant penetrated the victim. The evidence is sufficient to support the conviction.

                                   B. Election of Offenses

        Next, the appellant contends that the trial court erred by failing to require the jury to
determine whether his penetration of the victim was digital or penile. The State argues that
the trial court properly determined that an election of offenses was not required in this case.
We agree with the State.

        After the close of proof, defense counsel argued that the State was required to elect
whether the appellant penetrated the victim with his fingers or his penis. The trial court
disagreed, stating, “I believe the rape of a child includes penetration by the defendant of the
victim’s, in this case the State alleges, genital opening by any part of the defendant’s body.”
The defense argued that in order have a unanimous verdict, the trial court should instruct the
jury to agree on how the penetration occurred. The trial court refused.

       Our supreme court has repeatedly held that, if the prosecution offers proof of multiple
offenses in support of a single charged offense, it must elect the facts upon which it is relying
to establish the charged offense. State v. Johnson, 53 S.W.3d 628, 630 (Tenn. 2001); State
v. Kendrick, 38 S.W.3d 566, 568 (Tenn. 2001); State v. Brown, 992 S.W.2d 389, 391 (Tenn.
1999). Requiring an election “safeguards the defendant’s state constitutional right to a
unanimous jury verdict by ensuring that jurors deliberate and render a verdict based on the
same evidence.” Johnson, 53 S.W.3d at 631 (citing Brown, 992 S.W.2d at 391).

       Initially, we note that the appellant has failed to make any argument, cite to any
authority, or cite to the record in support of his contention. We recognize that the “[f]ailure
of the State to elect offenses when the proof requires an election is considered an error of
constitutional magnitude and will result in reversal of the conviction, absent the error being
harmless beyond a reasonable doubt.”               State v.    Ronnell Jason Leberry, No.
M2003-01228-CCA-R3-CD, 2005 Tenn. Crim. App. LEXIS 295, at *39 (Nashville, Mar. 28,
2005) (citing State v. Adams, 24 S.W.3d 289, 294 (Tenn. 2000)). Nevertheless, because the
appellant’s brief is inadequate regarding this issue, he is only entitled to relief if the error

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rises to the level of plain error. See Tenn. R. App. P. 27(a)(7); Tenn. Ct. Crim. App. R.
10(b).

       Tennessee Rule of Appellate Procedure 36(b) provides that “[w]hen necessary to do
substantial justice, [this] court may consider an error that has affected the substantial rights
of a party at any time, even though the error was not raised in the motion for a new trial or
assigned as error on appeal.” We may consider an issue to be plain error when all five of the
following factors are met:

              (a) the record must clearly establish what occurred in the trial
              court; (b) a clear and unequivocal rule of law must have been
              breached; (c) a substantial right of the 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. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994) (footnotes omitted); see
also State v. Smith, 24 S.W.3d 274, 283 (Tenn. 2000) (adopting the Adkisson test for
determining plain error). Furthermore, the “‘“plain error” must be of such a great magnitude
that it probably changed the outcome of the trial.’” Adkisson, 899 S.W.2d at 642 (quoting
United States v. Kerley, 838 F.2d 932, 937 (7th Cir. 1988)).

       The appellant is not entitled to plain error relief because no rule of law was breached.
The indictment alleged only one offense, and the State offered proof of only one offense.
That offense was the appellant’s one-time penetration of the victim’s vagina on November
15, 2008. The testimony differed as to whether that penetration was digital or penile.
However, all twelve jurors obviously concluded that the appellant penetrated the victim’s
vagina. The object used to penetrate the victim’s vagina, whether it be the appellant’s finger
or penis, was irrelevant. Given that the State did not offer proof of multiple offenses in
support of the single charged offense, an election of offenses was not required.

                             C. Reference to Failure to Testify

        The appellant contends that the prosecutor improperly commented on his failure to
testify during the prosecutor’s closing argument. The State contends that the prosecutor’s
comment was made in response to the appellant’s inappropriate outburst and, in any event,
was a correct statement of the law. We conclude that the appellant is not entitled to relief.

       During the State’s closing argument, the prosecutor said that the appellant admitted
to police officers that he might have penetrated the victim. The appellant interrupted the

                                              -7-
prosecutor’s argument, saying, “That statement is a lie, sir.” The prosecutor then stated,

              You will be the judge of the facts, and you’re not to listen to
              unsworn testimony or outbursts from somebody. You are to
              listen to what you hear from people that are willing to take an
              oath and tell you what happened under oath.

Defense counsel objected, arguing that the prosecutor was commenting on the appellant’s
failure to testify. The trial court instructed the jury as follows:

              Okay. Ladies and gentlemen, you are to ignore any outbursts
              made. You have to make your decision based upon the sworn
              testimony of the witnesses, the exhibits, and the charge that I
              will give you at the conclusion of closing statements.

Defense counsel then requested a curative instruction, and the trial court stated, “I’ll give it
in the charge.”

       It is constitutionally impermissible for a prosecutor to comment upon the accused’s
silence during the course of trial. State v. Transou, 928 S.W.2d 949, 960 (Tenn. Crim. App.
1996). The prosecutor’s first statement, that the jury could not listen to unsworn testimony
or outbursts, was proper. The prosecutor’s second statement, that the jury was to “listen to
what you hear from people that are willing to take an oath and tell you what happened under
oath,” could be construed as an indirect reference to the appellant’s failure to testify. In any
event, the trial court instructed the jury during the charge,

                      The defendant has not taken the stand to testify as a
              witness, but you shall place no significance on that. The
              defendant is presumed innocent, and the burden is on the State
              to prove his guilt beyond a reasonable doubt. He is not required
              to take the stand in his own behalf, and his election not to do so
              cannot be considered for any purpose against him, nor can any
              inference be drawn from such fact.

We generally presume that a jury has followed the trial court’s instructions. See State v.
Butler, 880 S.W.2d 395, 399 (Tenn. Crim. App. 1994). Moreover, given the proof against
the appellant, we conclude that any error was harmless. See Tenn. R. App. P. 36(a).




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                                      III. Conclusion

         Based upon the record and the parties’ briefs, we affirm the judgment of the trial
court.

                                                   _________________________________
                                                   NORMA McGEE OGLE, JUDGE




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