            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT NASHVILLE             FILED
                            DECEMBER 1996 SESSION
                                                            May 7, 1997

                                                        Cecil W. Crowson
                                                       Appellate Court Clerk

STATE OF TENNESSEE,                 )    NO. 01-C-01-9603-CC-00105
                                    )
      Appellee                      )    WILLIAMSON COUNTY
                                    )
V.                                  )    HON. CORNELIA A. CLARK, JUDGE
                                    )
JOHN W. GILLIAM                     )    (Unlawful Carrying or Possession of a
                                    )    Weapon and Sentencing)
      Appellant                     )
                                    )


FOR THE APPELLANT                        FOR THE APPELLEE

John H. Henderson                        John Knox Walkup
District Public Defender                 Attorney General and Reporter
P.O. Box 68                              450 James Robertson Parkway
Franklin, Tennessee 37065                Nashville, Tennessee 37243-0493

C. Diane Crosier                         Karen M. Yacuzzo
Assistant Public Defender                Assistant Attorney General
P.O. Box 68                              450 James Robertson Parkway
Franklin, Tennessee 37065                Nashville, Tennessee 37243-0493

                                         Joseph D. Baugh, Jr.
                                         District Attorney General
                                         P.O. Box 937
                                         Franklin, Tennessee 37065

                                         Mark L. Puryear
                                         Assistant District Attorney General
                                         P.O. Box 937
                                         Franklin, Tennessee 37065




OPINION FILED:______


AFFIRMED


William M. Barker, Judge
                                                  Opinion

            The Appellant, John W. Gilliam, appeals as of right his conviction and

 consecutive sentence for one count of the unlawful carrying or possession of a

 weapon. He argues that the evidence introduced at trial was insufficient to sustain his

 conviction and that the trial court erred when it ordered his sentence for that crime

 consecutive to another sentence for rape. We have reviewed the record on appeal

 and find no merit to the Appellant’s contentions and, therefore, affirm the trial court’s

 judgment.

            On August 18, 1994, T.L.C. 1 was staying at the Dickson Motel in Williamson

 County. Around 9:45 p.m., T.L.C. and a girlfriend arrived at the motel, where they

 encountered the Appellant outside T.L.C.’s room. Some conversation ensued and

 T.L.C. then went to her girlfriend’s room to visit. Approximately an hour and a half

 later T.L.C. returned to her room and went to bed.

            Around 11:45 p.m., she heard a knock on the door. She asked who was

 knocking and the Appellant identified himself and told her that he was there to meet a

 mutual friend. T.L.C. got dressed and let the Appellant into the room. In the room,

 the Appellant pulled out a gun which he held to T.L.C.’s face, raped her, and then left.

            Shortly thereafter, Louis Austin stopped by the victim’s room and found her

 sitting on the floor crying. Looking down the road, Austin saw the Appellant walking in

 the direction of Fairview. Austin and one other man followed the Appellant and

 confronted him regarding what had happened. In response, the Appellant pulled out a

 gun and held it to Austin’s face threatening him.

            Later that night police officers found the Appellant in his trailer close to Highway

 100. The police officers searched the trailer and found a small handgun hidden in the

 trash can in the bathroom. The Appellant was brought to the police station and there

 he admitted to having been in T.L.C.’s room and that he had been armed.


        1
            Although the victim of the rape was not a minor, we have nevertheless chosen to refer to her by
her in itials o nly.

                                                      2
         The Appellant was indicted for one count of aggravated rape, two counts of

aggravated assault, and one count of unlawfully carrying or possessing a weapon. On

April 12, 1995, the Appellant pled guilty to an amended charge of rape and the State

entered nolle prosequi orders regarding the aggravated assault charges. The

Appellant was sentenced to twelve years imprisonment.

         On August 24, 1995, the Appellant was tried by jury on the weapon charge. At

trial the jury was not aware of the fact that the Appellant had raped T.L.C., but it

nevertheless convicted him of the unlawful carrying or possession a weapon. The

Appellant was fined $3000.00 and the trial court sentenced him to two years

imprisonment to be served consecutive to the twelve-year sentence imposed for the

rape.

                                              I

         The Appellant first argues that the evidence introduced at trial was insufficient

to convict him of unlawfully carrying or possessing a weapon. This issue is without

merit.

         In order for the jury to convict the Appellant of unlawfully carrying or possessing

a weapon it had to find that the Appellant had violated Tennessee Code Annotated,

section 39-17-1307. This statute provides, in pertinent part: “A person commits an

offense who possesses a handgun and . . . [h]as been convicted of a felony involving

the use or attempted use of force, violence or a deadly weapon . . . .” Tenn. Code

Ann. § 39-17-1307(b)(1)(A) (1991).

         The evidence clearly showed, through testimony from the victim and Austin and

through the Appellant’s own admission, that the Appellant carried a weapon on the

night of August 18, 1994. The Appellant, however, takes issue with the evidence

regarding the second element of the offense. He claims that the circumstantial

evidence presented at trial was insufficient to prove that he had been previously




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convicted of felony involving the use or attempted use of force, violence, or a deadly

weapon.

       An appellant challenging the sufficiency of the proof has the burden of

illustrating to this Court why the evidence is insufficient to support the verdict returned

by the trier of fact in his or her case. This Court will not disturb a verdict of guilt for

lack of sufficient evidence unless the facts contained in the record and any inferences

which may be drawn from the facts are insufficient, as a matter of law, for a rational

trier of fact to find the defendant guilty beyond a reasonable doubt. State v. Tuggle,

639 S.W.2d 913, 914 (Tenn. 1982).

       Although the evidence of the appellant’s prior conviction is circumstantial in

nature, it is a well-established principle of law in this state that circumstantial evidence

alone may be sufficient to support a conviction. State v. Buttrey, 756 S.W.2d 718, 721

(Tenn. Crim. App. 1988). However, in order for this to occur, the circumstantial

evidence “must be not only consistent with the guilt of the accused but it must also be

inconsistent with his [or her] innocence and must exclude every other reasonable

theory or hypothesis except that of guilt.” State v. Tharpe, 726 S.W.2d 896, 900

(Tenn. 1987). In addition, “it must establish such a certainty of guilt of the accused as

to convince the mind beyond a reasonable doubt that [the appellant] is the one who

committed the crime.” Tharpe, 726 S.W.2d at 896. Moral certainty as to each

element of the offense is required, but absolute certainty is not. Id.

       When reviewing the convicting evidence, this Court must remember that the

jury decides the weight to be given to circumstantial evidence and that “[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.” Marable v. State, 313 S.W.2d 451, 457 (Tenn. 1958); Pruitt v. State, 460

S.W.2d 385, 391 (Tenn. Crim. App. 1970).




                                               4
       In order to satisfy the second element of the crime, the State introduced

evidence that the Appellant had been convicted of assault with intent to commit rape

in Oklahoma in 1991. The State, however, did not offer into evidence a copy of the

Oklahoma statute providing the elements of that crime. Because the elements of

Oklahoma’s assault with intent to commit rape crime were never established, the

Appellant now argues that the jury could not have found that he had been convicted of

a felony that involved the use or attempted use of force, violence, or a deadly weapon.

       Although the State did not introduce any direct evidence regarding the second

element of felony possession of a weapon, we find that the only reasonable

hypothesis that can be formed as a result of the definition of the Oklahoma crime of

assault with intent to commit rape is that that crime must have involved the attempted

use or use of force, violence, or a deadly weapon. The Appellant’s argument that a

rational jury could not have found that a crime such as assault with intent to commit

rape does not have an element of use or attempted use of force, violence, or a deadly

weapon goes beyond the stretch of this Court’s imagination. Accordingly, we find that

a rational jury, circumstantially, could have found that the Appellant’s Oklahoma felony

conviction involved the use or attempted use of force, violence, or a deadly weapon.

The Appellant has failed to carry his burden to prove otherwise and his claim that the

convicting evidence was insufficient is without merit.

                                              II

       The Appellant also contends that the trial court erred when it ordered that he

serve his sentence for the weapon conviction consecutive to his twelve-year sentence

for rape. This issue is also without merit.

       When an appellant complains of his or her sentence, we must conduct a de

novo review with a presumption of correctness. Tenn. Code Ann. § 40-35-401(d)

(1990). The burden of showing that the sentence is improper is upon the appealing

party. Id. Sentencing Commission Comments. This presumption, however, is



                                              5
conditioned on an 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).

       “If a defendant is convicted of more than one (1) criminal offense . . . the court

may order [the] sentences to run consecutively if [it] finds by the a preponderance that

. . . [t]he defendant is a dangerous offender whose behavior indicates little or no

regard for human life, and no hesitation about committing a crime in which the risk to

human life is high.” Tenn. Code Ann. § 40-35-115 (a), (b)(4) (1990). Before the trial

court can justify consecutive sentencing pursuant to this provision it must find that the

evidence shows that the defendant’s behavior indicated little or no regard for human

life and no hesitation about committing a crime in which the risk to human life was

high. Id. The trial court must also find that “[t]he proof . . . establishes that the terms

imposed are reasonably related to the severity of the offenses committed and are

necessary . . . to protect the public from further criminal acts by the offender.” State v.

Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995). The sentence must also comply with

the Sentencing Act’s general principles. Id.

       At the sentencing hearing, the trial court, considering the principles of the

Sentencing Act, ordered the Appellant’s sentence consecutive to the rape sentence

finding that he was a dangerous offender. We agree with the trial court’s findings.

       The Appellant, by the use of deceit, entered the victim’s room and raped her at

gunpoint. The Appellant also has a significant prior criminal history. The Appellant,

who was only twenty-two years old when the offense occurred, was found guilty of

aggravated rape in 1986 and the following year he escaped from his incarceration for

that offense. In 1991 he pled nolo contendre for assault with intent to commit rape

and served three years for that offense. Less than one year after his release he raped

the victim in this case under aggravated circumstances. The Appellant’s criminal past

makes it clear to us that confinement for an extended period of time is necessary to



                                             6
protect society from the Appellant and that the length of the sentences reasonably

relates to the offenses for which the defendant stands convicted. We also agree with

the trial court’s findings that the length of the sentence is necessary to provide

deterrence against similar crimes and to avoid depreciating the seriousness of that

offense.

       For the reasons contained herein, we affirm the Appellants convictions and

sentences.



                                                 __________________________
                                                 WILLIAM M. BARKER, JUDGE


CONCUR:


__________________________
PAUL G. SUMMERS, JUDGE


__________________________
JOE G. RILEY, JUDGE




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