         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs January 15, 2003

         STATE OF TENNESSEE v. ROLANDO ROSAS CONTRERAS

                     Appeal from the Circuit Court for Williamson County
                          No. 1-301-69    Donald P. Harris, Judge



                   No. M2002-01053-CCA-R3-CD - Filed February 21, 2003


The Defendant, Rolando Rosas Contreras, was convicted by a jury of three counts of aggravated rape
and two counts of aggravated assault. After a sentencing hearing, the Defendant was sentenced as
a violent offender to twenty-five years for each of the three rape convictions, and he was sentenced
as a Range I standard offender to six years for each of the two convictions for aggravated assault.
The trial court ordered all sentences to be served concurrently for a total effective sentence of
twenty-five years. In this direct appeal, the Defendant argues that the evidence presented at trial is
insufficient to support his convictions and that the trial court erred by sentencing him to an effective
sentence of twenty-five years. We affirm the convictions and modify the sentence imposed by the
trial court.

   Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court Affirmed in Part;
                                         Modified

DAVID H. WELLES, J., delivered the opinion of the court, in which THOMA S T. WOODA LL and
ROBERT W. WEDEMEYER , JJ., joined.

John H. Henderson, District Public Defender and Douglas P. Nanney, Assistant Public Defender,
Franklin, Tennessee, for the appellant, Rolando Rosas Contreras.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
Ron Davis, District Attorney General; and Derek K. Smith, Assistant District Attorney General, for
the appellee, State of Tennessee.

                                              OPINION

        The Defendant was convicted by a jury of three counts of aggravated rape, each a Class A
felony, and two counts of aggravated assault, each a Class C felony. Following a sentencing hearing,
he was sentenced as a violent offender to twenty-five years for each of the aggravated rape
convictions. He was also sentenced as a Range I standard offender to six years for each of the
aggravated assault convictions. The trial court ordered the sentences to run concurrently, resulting
in an effective sentence of twenty-five years to be served in the Department of Correction. In this
appeal as of right, the Defendant argues that the evidence presented at trial is insufficient to support
his convictions and that the trial court erred by ordering him to serve an effective sentence of twenty-
five years.

         The proof offered by the State established that on February 14, 2001, at about five o’clock
in the morning, Adrianna Terrazas, a middle school student, was awakened by the sound of someone
coming through her bedroom door in her family’s apartment. The intruder told her to “go back to
sleep and to not scream.” The person was holding a knife, and he pointed it at Adrianna. Adrianna
testified that she was “scared” because she was afraid the man would “try to kill [her].” Adrianna
identified the Defendant as the man who came into her room holding the knife.

        Gloria Terrazas, the eleven year old younger sister of Adrianna, testified that she shared a
bedroom with Adrianna. On the morning of February 14, she woke up when she heard people
talking in her room. She said that a man was telling Adrianna “not to scream.” The man was
holding a knife, and Gloria thought the man was going to “hurt [them]” and “cut [them].” Both
Adrianna and Gloria testified that when the intruder left their room he went to the room of their older
sister, Maria.

        Maria Terrazas, the older sister of Adrianna and Gloria, testified that she was awakened by
the sound of a man talking to her friend, who was sleeping in Maria’s room. The man told her friend
that “he had gotten in the wrong house” and was going to leave. He told Maria’s friend to go back
to sleep. Maria’s friend attempted to use her cell phone, and the intruder said that if she did not put
the phone down, “he might do something to her baby.” Maria was able to see that the man was
holding a small knife. The man told Maria to lie down, and he was “waving the knife around in his
hand.” Maria lay on the bed, and the man lay down next to her. He instructed her to remove her
shirt and her pants. Maria testified that at first she refused, but the man got angry and told her that
if she did not comply, “he’d cut [her].” The man then told her in Spanish to get on top of him and
place his penis inside her vagina. Maria refused. At this point, the man, still holding the knife, stood
next to the bed and demanded that Maria perform oral sex on him, which Maria did for a few
seconds. The man then made her lie down on the bed, and he got on top of her. Maria testified that
he touched her cheek with his knife. He then used his knife to cut her underwear off; then he
penetrated her vagina with his penis. This lasted less than a minute. The man then got up and
knocked several items off Maria’s night stand. As Maria was putting her pants on, the man turned
on the light, and Maria saw his face for two or three seconds. Maria testified that she had seen him
before at the Hispanic grocery store that her parents owned. She identified the Defendant as the man
who came into her room on the morning of February 14, 2001.

       Maria testified that after the Defendant left her room, he took her into the kitchen. He began
groping her, and he bent her over the kitchen table and tried to have anal sex with her. However, he
was unsuccessful. The Defendant ordered Maria to get on her knees and perform oral sex on him
again, which she did. Maria testified that the Defendant still had the knife while they were in the
kitchen. As he was leaving the apartment, the Defendant told Maria that if she told anyone what he


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had done, “he would kill [her] or somebody in [her] family.” When he left, Maria called the police
on her friend’s cell phone. Maria was taken to the hospital in an ambulance, and a rape kit was
performed on her. Then Maria went to the police department to make a composite picture of the man
who had raped her. Maria also made a photo identification of the Defendant.

         Dr. Cindy Woodall testified that she treated Maria Terrazas on February 14, 2001. She
testified that Maria told her that she had been sexually assaulted in her room earlier that morning.
Maria told her that there had been vaginal and oral penetration, but she was unsure whether her
attacker had ejaculated. Maria told Dr. Woodall that during the assault, the intruder had held a knife
against her cheek. Dr. Woodall testified that she found no damage to Maria’s vagina. She did locate
dried semen on the entrance to Maria’s vagina. After Dr. Woodall performed the rape kit on Maria,
she gave it to Detective Becky Johnson. Dr. Woodall stated that, although she located semen around
Maria’s vagina, the Tennessee Bureau of Investigation laboratory report stated that no semen was
present. Dr. Woodall explained that this could have occurred either because she failed to swab the
semen properly or the swab was dry.

         Detective Tommy Heithcock of the Franklin Police Department testified that on February 14,
2001, he went to the Bramblewood Apartments to investigate the sexual assault of Maria Terrazas.
He found a microwave oven outside the bathroom window of the apartment, and he located
footprints on top of it. The bathroom window was open, and he discovered similar footprints on the
tile floor in the bathroom. From this evidence, Detective Heithcock determined that the intruder had
entered the apartment through the bathroom window. However, he was unable to find any
fingerprints around the window or on any of the doorknobs. The detective did gather several items,
including the panties that had been cut off Maria, bed sheets, a blanket, a pillowcase, and a light bulb
from a lamp in Maria’s bedroom.

         Detective Becky Johnson of the Franklin Police Department went to the emergency room on
February 14, 2001 and recovered the rape kit that had been administered to Maria Terrazas. She
testified that semen was detected on some of the evidence recovered from Maria’s bedroom, such
as the blanket and bedspread. However, the DNA matched Maria’s boyfriend. Detective Johnson
also testified that she assisted Maria in examining photographs at the police station. Maria picked
the Defendant out of the photo lineup and said, “That’s him.” When Ms. Johnson asked Maria how
certain she was on a scale of one to ten that it was the Defendant who raped her, Maria replied
“Ten.” Detective Johnson also showed a photo lineup to Adrianna Terrazas, who said that the man
in photograph number five, the Defendant, looked familiar. However, Adrianna was unable to say
for certain that the Defendant was the man who had been in her family’s apartment.

        Agent Elizabeth Reid of the Tennessee Bureau of Investigation, a forensic scientist
specializing in latent fingerprint analyzation, testified that she examined the light bulb that Detective
Heithcock had removed from the lamp in Maria Terrazas’ bedroom. She recovered a fingerprint
from the light bulb; then she compared that print with the fingerprints of the Defendant. She testified
that the print found on the light bulb matched the Defendant’s left thumb print.



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         The Defendant argues that the proof presented by the State at trial is insufficient to support
his three convictions for aggravated rape and two convictions for aggravated assault. Tennessee
Rule of Appellate Procedure 13(e) prescribes that “[f]indings of guilt in criminal actions whether by
the trial court or jury shall be set aside if the evidence is insufficient to support the findings by the
trier of fact of guilt beyond a reasonable doubt.” Evidence is sufficient if, 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. See Jackson v. Virginia, 443 U.S.
307, 319 (1979); State v. Smith, 24 S.W.3d 274, 278 (Tenn. 2000). In addition, because conviction
by a trier of fact destroys the presumption of innocence and imposes a presumption of guilt, a
convicted criminal defendant bears the burden of showing that the evidence was insufficient. See
McBee v. State, 372 S.W.2d 173, 176 (Tenn. 1963); see also State v. Buggs, 995 S.W.2d 102, 105-
06 (Tenn. 1999); State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992); State v. Tuggle, 639 S.W.2d
913, 914 (Tenn. 1982).

        In its review of the evidence, an appellate court must afford the State “the strongest legitimate
view of the evidence as well as all reasonable and legitimate inferences that may be drawn
therefrom.” Tuggle, 639 S.W.2d at 914; see also Smith, 24 S.W.3d at 279. The court may not “re-
weigh or re-evaluate the evidence” in the record below. Evans, 838 S.W.2d at 191; see also Buggs,
995 S.W.2d at 105. Likewise, should the reviewing court find particular conflicts in the trial
testimony, the court must resolve them in favor of the jury verdict or trial court judgment. See
Tuggle, 639 S.W.2d at 914. All questions involving the credibility of witnesses, the weight and
value to be given the evidence, and all factual issues are resolved by the trier of fact, not the appellate
courts. See State v. Morris, 24 S.W.3d 788, 795 (Tenn. 2000); State v. Pappas, 754 S.W.2d 620,
623 (Tenn. Crim. App. 1987).

        “Aggravated rape is unlawful sexual penetration of a victim by the defendant . . .
accompanied by any of the following circumstances: (1) Force or coercion is used to accomplish
the act and the defendant is armed with a weapon . . . .” Tenn. Code Ann. § 39-13-502(a)(1).
“‘Sexual penetration’ means sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other
intrusion, however slight, of any part of a person’s body . . . 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). Tennessee Code Annotated section 39-13-101(a)(2) states that a person
commits assault who “[i]ntentionally or knowingly causes another to reasonably fear imminent
bodily injury.” An aggravated assault is an assault in which a deadly weapon is used or displayed.
See Tenn. Code Ann. § 39-13-102(a)(1)(B).

        In this case, the evidence is sufficient to support the Defendant’s three convictions for
aggravated rape. Maria Terrazas testified that the Defendant told her to lie on her bed as he was
“waving the knife around in his hand.” When she did, he instructed her to remove her shirt and her
pants. She stated that when she hesitated, he became angry and threatened to cut her with the knife.
The Defendant removed his penis from his pants, told Maria to get on top of him and “put it inside
[her vagina].” Maria refused, and the Defendant then stood next to the bed and demanded that Maria
perform oral sex on him, which she did for about five seconds. The Defendant then had Maria lie


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back down on the bed, and he got on top of her. He touched the side of her face with the knife; then
he used the knife to cut off her underwear. At this point, the Defendant had vaginal intercourse with
Maria for about one minute. The Defendant got up and took Maria into the kitchen. There he began
groping her and unsuccessfully attempted to engage in anal intercourse with her. Then the Defendant
ordered her to perform oral sex on him again, which she did. Maria testified that the Defendant was
wielding the knife the entire time. The Defendant’s fingerprint was found inside the home where
the attack occurred. Based on this evidence, a rational jury could have found beyond a reasonable
doubt that the Defendant did commit three separate unlawful sexual penetrations of Maria Terrazas
by force while using a weapon.

        Likewise, the evidence is sufficient to support the Defendant’s two convictions for
aggravated assault. Both Adrianna Terrazas and Gloria Terrazas testified that the Defendant entered
their room armed with a knife. Both girls testified that the Defendant instructed them to not scream.
Both girls testified that they were afraid. Adrianna stated that she feared that the Defendant would
“try to kill [her],” and Gloria testified that she was afraid that the Defendant would “cut [them].”
Based upon this evidence, a rational jury could have found beyond a reasonable doubt that the
Defendant did cause both the girls to reasonably fear imminent bodily injury while he was displaying
a deadly weapon. Accordingly, this issue is without merit.

        The Defendant also argues that the trial court erred by ordering him to serve an effective
sentence of twenty-five years. When an accused challenges the length, range, or manner of service
of a sentence, this Court has a duty to conduct a de novo review of the sentence with a presumption
that the determinations made by the trial court are correct. See Tenn. Code Ann. § 40-35-401(d).
This presumption is “conditioned upon the affirmative showing in the record that the trial court
considered the sentencing principles and all relevant facts and circumstances.” State v. Ashby, 823
S.W.2d 166, 169 (Tenn. 1991).

         When conducting a de novo review of a sentence, this Court must consider: (a) the evidence,
if any, received at the trial and sentencing hearing; (b) the presentence report; (c) the principles of
sentencing and arguments as to sentencing alternatives; (d) the nature and characteristics of the
criminal conduct involved; (e) any statutory mitigating or enhancement factors; (f) any statement
made by the defendant regarding sentencing; and (g) the potential or lack of potential for
rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102, -103, -210; State v. Brewer, 875
S.W.2d 298, 302 (Tenn. Crim. App. 1993); State v. Thomas, 755 S.W.2d 838, 844 (Tenn. Crim.
App. 1988).

        If our review reflects that the trial court followed the statutory sentencing procedure, that the
court imposed a lawful sentence after having given due consideration and proper weight to the
factors and principles set out under the sentencing law, and that the trial court’s findings of fact are
adequately supported by the record, then we may not modify the sentence even if we would have
preferred a different result. See State v. Pike, 978 S.W.2d 904, 926-27 (Tenn. 1998); State v.
Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).



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        At the sentencing hearing in his case, the trial court heard testimony from Steven Adams, a
former cell mate of the Defendant in the county jail. Mr. Adams testified that while they were in jail
together, he and the Defendant had engaged in a conversation about the components of a successful
criminal prosecution. Mr. Adams testified that the Defendant told him that he had raped Maria
Terrazas. The Defendant told Mr. Adams how he used a knife while raping Maria. Mr. Adams
stated that the Defendant described where the Terrazas family lived and where Maria Terrazas
worked. The Defendant explained to Mr. Adams that the police had been unable to find any semen,
DNA evidence, or fingerprints at the crime scene. Ultimately, the Defendant asked Mr. Adams
whether he would be willing to hurt someone for money. The Defendant added that his family in
Mexico had approximately twenty thousand dollars. This caused Mr. Adams to be concerned about
the safety of Maria Terrazas. Sometime later at a church service, Mr. Adams approached the
Defendant and asked how things were going. The Defendant responded by asking Mr. Adams if he
had ever heard of MS Thirteen, which Mr. Adams recognized as the name of a Mexican gang. Then
the Defendant winked at Mr. Adams and said, “I’ve got the problem taken care of.” As a result of
these conversations with the Defendant, Mr. Adams wrote a letter to the district attorney general’s
office describing the things the Defendant was saying.

       David Pratt, an officer with the Board of Probation and Parole, also testified at the sentencing
hearing. He stated that he prepared a presentence report in the Defendant’s case.1 He testified that
the Defendant admitted to being in the United States illegally in violation of 8 U.S.C. § 1325.
Furthermore, the Defendant admitted while on the stand at the sentencing hearing that he used
marijuana once while he was still residing in Mexico. However, the Defendant denied asking Steven
Adams to harm Maria Terrazas.

        At the conclusion of the sentencing hearing, the trial court ordered the Defendant to serve
an effective sentence of twenty-five years in the Department of Correction. The trial judge found
as an enhancing factor that the Defendant had a history of criminal behavior in addition to that
necessary to establish the appropriate range. See Tenn. Code Ann. § 40-35-114(2) (Supp. 2002).
In finding this enhancement factor, the court placed great weight on the testimony of Steven Adams,
and it placed little weight on the Defendant’s illegal residency in the United States and his smoking
marijuana while in Mexico.

        After thoroughly reviewing the testimony of Mr. Adams, we cannot conclude that his
testimony was sufficient to establish that the Defendant had a history of criminal behavior. Although
Mr. Adams testified that the Defendant asked him whether he would hurt someone in exchange for
money, the asking of this question does not constitute a crime. Likewise, the mentioning of twenty
thousand dollars in Mexico or of a gang does not constitute evidence of criminal behavior. Finally,
the Defendant saying that the problem is “taken care of,” while perhaps a cause for concern,
especially when coupled with statements regarding hurting people, money, and gangs, does not rise
to the level of criminal conduct. Therefore, it was error for the court to apply enhancement factor
(2) based on the testimony of Steven Adams. However, irrespective of the misapplication of


       1
           We note that the presentence report was not included in the appellate record.

                                                          -6-
enhancement factor (2) regarding the testimony of Mr. Adams, there was evidence presented at the
sentencing hearing that the Defendant was in the United States illegally and that he had used
marijuana in the past. These facts do properly establish enhancement factor (2). However, the trial
court gave these facts little weight, and these circumstances do not justify the trial court’s
enhancement of five years over the presumptive sentence, which, for a Range I offender convicted
of a class A felony, is the midpoint of the range, or twenty years. See Tenn. Code Ann. §§ 40-35-
112(a)(1), 210(c). Based on our review of the record and the sentencing hearing, we have
determined that an enhancement of two years on each count of aggravated rape is appropriate.

        The Defendant’s convictions are affirmed. We modify the sentence imposed by the trial
court from twenty-five years on each count of aggravated rape to twenty-two years on each count.
The sentence imposed for each of the Defendant’s convictions for aggravated assault shall remain
at six years, and all of the sentences shall run concurrently, for an effective sentence of twenty-two
years.




                                                       ___________________________________
                                                       DAVID H. WELLES, JUDGE




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