         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                  December 3, 2013 Session

                STATE OF TENNESSEE v. DERRICK BRAXTON

               Direct Appeal from the Criminal Court for Shelby County
                        No. 12-01839     Bobby Carter, Judge


               No. W2013-00493-CCA-R3-CD - Filed February 27, 2014


Defendant, Derrick Braxton, was convicted as charged for one count of aggravated sexual
battery and sentenced to ten years’ confinement to be served at 100 percent release eligibility.
Defendant appeals his conviction and sentence and asserts the following: 1) the trial court
erred by denying his motion for judgment of acquittal and the evidence is insufficient to
support his conviction; 2) his sentence is excessive; 3) the trial court failed to act as thirteenth
juror; and 4) the prosecutor’s comments about Defendant’s credibility during closing
argument were improper. Finding no error, we affirm the judgment of the trial court.

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

T HOMAS T. W OODALL, J., delivered the opinion of the court, in which J OHN E VERETT
W ILLIAMS, and J EFFREY S. B IVINS, JJ., joined.

Marty B. McAfee, Memphis, Tennessee, for the appellant, Derrick Braxton.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney
General; Amy P. Weirich, District Attorney General; Carrie Sheldon and Caveat Ostner,
Assistant District Attorneys General, for the appellee, State of Tennessee.

                                            OPINION

Facts

       The victim, whom we will refer to by her initials E.E., was thirteen years old at the
time of trial. The victim’s mother testified that she married Defendant on March 25, 2011.
Defendant moved into her home prior to their marriage. E.E.’s mother testified that E.E. was
diagnosed with ADHD and suffered from anxiety around the same time the criminal
incidents occurred. E.E. was taking medications. E.E.’s mother testified that she saw
Defendant in E.E.’s room one night. He was sitting on the edge of the bed singing.
Defendant told her that E.E. had asked him to come into her room because she could not
sleep. On another occasion, she saw Defendant lying behind E.E. on E.E.’s bed. She told
Defendant not to go into E.E.’s room anymore.

       In late August, 2011, E.E. told her mother that Defendant had sexually abused her.
E.E.’s mother confronted Defendant about the sexual abuse, and Defendant denied it. E.E.’s
mother testified that Defendant “just kept right on watching TV” after he denied the
allegations. E.E.’s mother acknowledged that she asked Defendant to pick up E.E. from
school on the day following E.E.’s disclosure of sexual abuse by Defendant. E.E.’s mother
reported the allegations to authorities and told Defendant to move out of their home.

        E.E. testified that when she was eleven years old, Defendant would come into her
bedroom at night and sit on the bed and watch television with her. Defendant would return
to her room “in the middle of the night” and “try to get into bed” with her. E.E. testified that
Defendant touched her breasts and vagina under her clothing. She testified that it happened
“multiple times.” E.E. testified that she and Defendant would sometimes watch television
together in the living room. On one occasion, they were watching the show “South Park.”
She testified that Defendant “would scoot close to [her]” on the couch and that he put his
hand in her underwear and touched her vagina. On cross-examination, she testified that she
woke up and Defendant “was on top of [her] like a dog pose and his underwear was down.”
She pretended to have just awoken and began stretching, and Defendant “was there like he
didn’t do anything.” She testified that Defendant “was just sitting down like nothing
happened.” She testified that was the last incident before she told her mother about the
abuse. On redirect examination, the victim testified that the incident when Defendant was
on top of her was a separate incident from the incident when he put his hand in her
underwear. She testified that Defendant did not touch her in the incident when he was on top
of her.

        E.E. testified that she liked fairies and that there was a time when she pretended that
fairies were real, but she knew that they were not real. She testified that she and her sister
sometimes went to work with Defendant and that Defendant would check on them in the
break room.

       E.E.’s nine-year-old sister testified that she got out of her bed one night to go to the
bathroom and saw Defendant lying in E.E.’s bed with his arm around her. E.E.’s sister
denied that she and her sister ever went to work with Defendant.




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        Three of Defendant’s co-workers testified that they saw Defendant bring E.E. and her
sister to work with him. They testified that the children appeared to be happy, and they saw
Defendant interact appropriately with the children.

        Defendant denied having touched the victim inappropriately. He testified that E.E.
sometimes fell asleep on the couch while watching television, and he woke her by tapping
her on the shoulder and telling her to go to bed. Defendant testified that E.E. believed in
fairies and that she would sometimes “make things up.” He testified that E.E. suffered from
anxiety. Defendant testified that he went into E.E.’s bedroom to “tuck her in,” but he never
sat on the bed with her.

Analysis

Motion for Judgment of Acquittal

       In his first issue, Defendant contends that the trial court erred in denying his motion
for judgment of acquittal because the evidence was insufficient to support his conviction for
aggravated sexual battery.

       A motion for judgment of acquittal raises a question of law for the trial court’s
determination. State v. Hall, 656 S.W.2d 60, 61 (Tenn. Crim. App. 1983). When the trial
court is presented with a motion for judgment of acquittal, the only concern is the legal
sufficiency, as opposed to the weight, of the evidence. State v. Blanton, 926 S.W.2d 953,
957 (Tenn. Crim. App. 1996). Appellate courts are ill-suited to assess whether the verdict
is supported by the weight and credibility of the evidence. State v. Moats, 906 S.W.2d 431,
435 (Tenn. 1995). Thus, appellate review is limited to sufficiency of the evidence pursuant
to Rule 13(e) of the Rules of Appellate Procedure. State v. Burlison, 868 S.W.2d 713,
718-19 (Tenn. Crim. App. 1993).

        Accordingly, the standard by which the trial court determines a motion for a judgment
of acquittal is, in essence, the same standard that applies on appeal in determining the
sufficiency of the evidence after a conviction. State v. Little, 402 S.W.3d 202, 211 (Tenn.
2013). That 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, 99 S. Ct. 2781, 61 L.
Ed. 2d 560 (1979); see also Tenn. R. App. P. 13(e). In determining the sufficiency of the
evidence, this court does not reweigh or reevaluate the evidence. State v. Cabbage, 571
S.W.2d 832, 835 (Tenn. 1978). Likewise, it is not the duty of this court to revisit questions
of witness credibility on appeal, that function being within the province of the trier of fact.
State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim. App. 1999); Burlison, 868 S.W.2d at 719.

                                              -3-
Moreover, the State is entitled to the strongest legitimate view of the evidence and all
reasonable inferences which may be drawn therefrom. State v. Harris, 839 S.W.2d 54, 75
(Tenn. 1992). These rules are applicable to findings of guilt predicated upon direct evidence,
circumstantial evidence, or a combination of both direct and circumstantial evidence. State
v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).

       Rule 29 of the Tennessee Rules of Criminal Procedure provides as follows:

        Grounds for Judgment of Acquittal – On defendant’s motion or its own
        initiative, the court shall order the entry of judgment of acquittal of one or
        more offenses charged in the indictment, presentment, or information after
        the evidence on either side is closed if the evidence is insufficient to sustain
        a conviction of such offense or offenses.

Tenn. R. Crim. P. 29(b). “This rule empowers the trial judge to direct a judgment of acquittal
when the evidence is insufficient to warrant a conviction either at the time the [S]tate rests
or at the conclusion of all the evidence.” State v. James, 315 S.W.3d 440, 455 (Tenn. 2010)
(citing Overturf v. State, 571 S.W.2d 837, 839 & n. 2 (Tenn. 1978)).

       In his argument on appeal, Defendant does not contend that the State failed to prove
any of the elements of the charged offense of aggravated sexual battery. Rather, Defendant
challenges only the credibility of the victim and the victim’s mother. Defendant asserts that
there were conflicts in the testimony of E.E. and her mother, and there were inconsistencies
in E.E.’s testimony. Specifically, Defendant points to testimony by the victim’s mother that
E.E. was “a light sleeper,” but that E.E. slept through a conversation between E.E.’s mother
and Defendant when E.E.’s mother found Defendant in E.E.’s bedroom. Defendant also
points out that E.E.’s mother testified that on one occasion, she saw Defendant in E.E.’s bed
with his arm around her, but E.E. testified that Defendant did not put his arm around her.
Defendant also points to conflicts in their testimony about which way Defendant was facing
when he was lying in E.E.’s bed. Defendant also asserts that a reasonable juror could not
believe that E.E.’s mother would allow Defendant to pick up E.E. from school after learning
that he had sexually abused her.

       This court has consistently held that the trial court and jury are in the best position to
determine credibility. “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). Our supreme court stated the
rationale for this rule:




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        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, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State,
212 Tenn. 464, 370 S.W.2d 523 (Tenn. 1963)). Accordingly, this court cannot revisit the
jury’s credibility findings. As this court has previously observed, “although inconsistencies
or inaccuracies may make the witness a less credible witness, the jury’s verdict will not be
disturbed unless the inaccuracies or inconsistencies are so improbable or unsatisfactory as
to create a reasonable doubt of the appellant’s guilt. State v. Radley, 29 S.W.3d 532, 537
(Tenn. Crim. App. 1999).

        Regarding the incident that the State elected as the offense in this case, Defendant
asserts that the victim equivocated and her testimony was not credible. The State asserts that
Defendant’s argument conflates two separate incidents. The State elected as the offense the
incident that occurred “when the [victim] was sitting on the sofa with the defendant in there
watching South Park when he placed his fingers on her . . . vagina.” At the time of the
election, defense counsel agreed that the “South Park” incident was a distinct incident
separate from the others about which the victim testified. The State argues that the victim
unequivocally testified that Defendant touched her vagina while they were sitting on the
couch together watching the television show “South Park.” We agree with the State. Viewed
in the light most favorable to the State, the evidence establishes that Defendant touched the
victim while watching television on the couch. The parties acknowledged at trial that the
incident about which the victim testified when Defendant was on top of her with his
underwear down was a separate incident. While the transcript shows that the victim testified
that Defendant did not touch her during that incident, she testified that Defendant did touch
her during the incident the State elected as the offense. The jury accredited the victim’s
testimony. Defendant is not entitled to relief on this issue.

Sentencing

       Defendant next contends that the trial court erred in sentencing him. Defendant
challenges the trial court’s application of enhancement factor (14), that Defendant abused a
position of trust, and Defendant argues that his sentence should have been mitigated by his
lack of prior criminal history. The State argues that the trial court properly sentenced
Defendant.

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        In State v. Bise, the Tennessee Supreme Court reviewed changes in sentencing law
and the impact on appellate review of sentencing decisions. The Tennessee Supreme Court
announced that “sentences imposed by the trial court within the appropriate statutory range
are to be reviewed under an abuse of discretion standard with a ‘presumption of
reasonableness.’” State v. Bise, 380 S.W.3d 682, 709 (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. at 554-55; State v. Grear, 568
S.W.2d 285, 286 (Tenn. 1978); State v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980).
The reviewing court should uphold the sentence “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. So long as the trial court
imposes a sentence within the appropriate range and properly applies the purposes and
principles of the Sentencing Act, its decision will be granted a presumption of
reasonableness. Id. at 707.

         We note that even a trial court’s misapplication of an enhancing or mitigating factor
in passing sentence will not remove the presumption of reasonableness from its sentencing
determination. Bise, 380 S.W.3d at 709. Here, Defendant does not dispute that he abused
a position of trust, but rather he asserts that the trial court afforded undue weight to that
enhancement factor and did not afford proper weight to Defendant’s lack of prior criminal
history and positive work history. The trial court found that Defendant abused a position of
trust, finding “in this instance where the perpetrator of the acts was in the home acting as a
father figure, living there and was entrusted with the care of [the children].” The trial court
further stated, “[o]nce he put himself in that position where they were reliant upon him, then
to commit a crime of this magnitude against a child does, in fact, violate that and that
differentiates it from other acts of this sort.” The trial court declined to apply as a mitigating
factor that Defendant had no prior criminal history, finding “that alone is not mitigation. It
has to be more to it than that.” The court acknowledged that Defendant had an “absolute
right” to deny the allegations, but noted that “he certainly can’t get credit for me being
favorably impressed towards his rehabilitation or admission of the responsibility and
acceptance of that.” The court noted that the applicable range of punishment was eight to
twelve years and imposed a sentence of ten years.

       We conclude that the sentencing decision was “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 709-10. Defendant is not entitled to relief.



                                               -6-
Thirteenth juror

        Defendant contends that the trial court failed to fulfill its duty as the thirteenth juror
when it approved the jury’s conviction of aggravated sexual battery. The State contends that
the trial court properly acted as thirteenth juror.

        Rule 33(d) of the Tennessee Rules of Criminal Procedure provides that a “trial court
may grant a new trial following a verdict of guilty if it disagrees with the jury about the
weight of the evidence.” This rule “is the modern equivalent to the ‘thirteenth juror rule,’
whereby the trial court must weigh the evidence and grant a new trial if the evidence
preponderates against the weight of the verdict.” State v. Blanton, 926 S.W.2d 953, 958
(Tenn. Crim. App. 1996). The rule “imposes upon [the trial court] the mandatory duty to
serve as the thirteenth juror in every criminal case, and that approval by the trial [court] of
the jury’s verdict as the thirteenth juror is a necessary prerequisite to imposition of a valid
judgment.” State v. Carter, 896 S.W.2d 119, 122 (Tenn. 1995). The rule does not require
a specific statement on the record indicating the trial court’s approval of the verdict, and in
the absence of a specific statement, the trial court’s order denying a motion for new trial
constitutes an approval of the jury’s verdict. Id. However, “when a trial court chooses to
comment on the record about its thirteenth juror determination, the ruling should be clear and
unequivocal.” State v. Moats, 906 S.W.2d 431, 434 (Tenn. 1995). “A new trial will be
required after appeal, only when the record contains statements indicating that the trial court
failed to act as the thirteenth juror or misconstrued its authority under that rule.” Id.

        We note that in his motion for new trial, Defendant asserted that the trial court’s ruling
as thirteenth juror was error because the verdict was against the weight of the evidence in the
record. Defendant made the same credibility assertions that he makes in his first issue on
appeal regarding the sufficiency of the evidence. However, in his brief, Defendant asserts
that the trial court absolved itself of its duty to act as thirteenth juror, arguing that the trial
court’s “comments show disagreement or dissatisfaction with the verdict or attempt to
resolve the trial court of its responsibility as the thirteenth juror.” It is well-settled that an
appellant cannot change theories from the trial court to the appellate court. See State v.
Dooley, 29 S.W.3d 542, 549 (Tenn. Crim. App. 2000). Ordinarily, this constitutes waiver
of the issue.

        Nevertheless, we disagree with Defendant that the trial court’s comments show
disagreement or dissatisfaction with the jury’s verdict. The trial transcript shows that after
the jury’s verdict was read aloud, the trial court specifically accepted and approved the jury’s
verdict as follows: “[Defendant], a jury of your peers having found you guilty of aggravated
sexual battery, as 13th juror, I accept the verdict of the jury and I likewise find you guilty of
aggravated sexual battery.”

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      At the conclusion of the State’s proof, the trial court overruled defense counsel’s
motion for judgment of acquittal, stating as follows:

        [T]he standard that I’ve got to view your motion is in the light most
        favorable to the nonmoving party. And I’m going to find that if the [jury]
        were to accredit the testimony of [the victim’s mother], they could find that
        [Defendant] was guilty. So I’ll let this be a jury question. And
        understanding you’ve got proof to go yet anyway.

       Finally, in denying Defendant’s motion for new trial, the trial court further stated:

        The motion [for new trial] lists a number of paragraphs, but they basically
        fall into two areas and the first is sufficiency of the evidence, and I’ve ruled
        on that. If the jury accredited the testimony of the victim in this case, which
        they apparently did, then that would be sufficient to convict. So, the
        sufficiency of the evidence was resolved by – by the jury when they
        accredited the testimony of the trial.

    The trial court’s written order states, “the Motion for New Trial is hereby
OVERRULED, and the Court adopts the verdict of the Jury in the above cause.”

       The trial court fulfilled its duty as the thirteenth juror in this case, and Defendant is
not entitled to relief on this issue.

Closing argument

       Finally, Defendant contends that the prosecutor engaged in prosecutorial misconduct
during her closing argument. Specifically, Defendant asserts that the following portion of
the State’s closing argument was improper:

        You heard from her, you heard from [Defendant] who said yes, I was either
        in her room with her or downstairs alone. So he has corroborated her
        testimony to the extent that she came in [and] said he was alone with me
        and doing these things. And that, ladies and gentlemen, is what you need
        to support what [the victim] has said here. Even [Defendant] says she has
        no reason to come in and make this up.

        Defendant acknowledges that he did not object to the prosecutor’s statements.
Typically, when a prosecutor’s statement is not the subject of a contemporaneous objection,
the issue is waived. See Tenn. R. App. P. 36(a); see also State v. Little, 854 S.W.2d 643, 651

                                              -8-
(Tenn. Crim. App. 1992) (stating that the failure to object to the prosecutor’s alleged
misconduct during closing argument waived later complaint). Defendant also failed to
include this issue in his motion for a new trial. See Tenn. R. App. P. 36(a). Defendant
asserts that plain error review is appropriate. The State contends that Defendant has not
established that plain error review is appropriate. We agree with the State.

       Our supreme court has adopted the following factors developed by this court to be
considered when deciding whether an error constitutes “plain error” in the absence of an
objection at trial:

        (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. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d 626,
641-42 (Tenn. Crim. App. 1994)). The record must establish all five factors before plain
error will be recognized, and “complete consideration of all the factors is not necessary when
it is clear from the record that at least one of the factors cannot be established.” Smith, 24
S.W.3d at 283. In order for this court to reverse the judgment of a trial court, the error must
be “of such a great magnitude that it probably changed the outcome of the trial,” and
“recognition should be limited to errors that had an unfair prejudicial impact which
undermined the fundamental fairness of the trial.” Adkisson, 899 S.W.2d at 642.

       Initially, we note that the closing arguments are transcribed and included in the
appellate record; therefore, the first plain error factor is met. Next, we observe that trial
courts have substantial discretionary authority in determining the propriety of final argument,
and although counsel is generally given wide latitude, trial judges must restrict any improper
commentary. See Coker v. State, 911 S.W.2d 357, 368 (Tenn. Crim. App. 1995). Closing
arguments must be temperate, must be based upon evidence introduced during trial, and must
be relevant to the issues at trial. See State v. Sutton, 562 S.W.2d 820, 823 (Tenn. 1978). The
State should refrain from argument designed to inflame or incite the emotions of the jury.
See Coker, 911 S.W.2d at 368.

       When a statement made during a closing argument is improper, “the test for
determining if reversal is required is whether the impropriety ‘affected the verdict to the
prejudice of the defendant.’” State v. Cribbs, 967 S.W.2d 773, 783 (Tenn. 1998) (quoting
Harrington v. State, 385 S.W.2d 758, 759 (Tenn. 1965)). The factors to consider include the
conduct at issue viewed in light of the facts and circumstances of the case, any curative

                                              -9-
actions by the trial court, the intent of the prosecutor’s improper statement, the cumulative
error of the improper statement and any additional errors in the record, and the strength or
weakness of the case. Id.

       Defendant asserts that the above statement by the prosecutor intentionally misstated
the evidence and misled the jury as to the inferences it could draw. See State v. Goltz, 111
S.W.3d 1, 6 (Tenn. Crim. App. 2003). He argues that the prosecutor improperly posited that
Defendant admitted to instances when he was alone with the victim, and that Defendant’s
“corroboration” of the victim’s testimony was sufficient to convict Defendant. The State
asserts that the prosecutor’s argument relied upon facts in evidence because Defendant
admitted that he went into the victim’s bedroom at night to turn on her television; that he
sometimes let the victim watch television with him in the living room; and that the victim
would sometimes fall asleep in the living room, and he would tap her shoulder to wake her
and send her to bed. The State further asserts that even if the prosecutor’s comments were
improper, they were not so “exceptionally flagrant” as to constitute plain error. We agree.

       In his testimony at trial, Defendant admitted to instances of being alone with the
victim. The State’s closing argument was premised on Defendant’s testimony and was a
comment intended to suggest that at least that part of the victim’s testimony was credible.
Under these circumstances, Defendant has failed to establish that prosecutorial misconduct
occurred. No clear and unequivocal rule of law was breached. Therefore, plain error relief
is not warranted, and we need not proceed with an examination of the remaining Adkisson
factors. See Smith, 24 S.W.3d at 283.

                                     CONCLUSION

       Upon careful review of the record, we affirm the judgment of the trial court.




                                                   _________________________________
                                                   THOMAS T. WOODALL, JUDGE




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