         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT KNOXVILLE          FILED
                           MAY 1998 SESSION         June 26, 1998

                                                 Cecil Crowson, Jr.
                                                  Appellate C ourt Clerk
STATE OF TENNESSEE,               )
                                  )    NO. 03C01-9710-CR-00478
      Appellee,                   )
                                  )    SCOTT COUNTY
VS.                               )
                                  )    HON. LEE ASBURY,
CHARLES DAVID BOWLING,            )    JUDGE
                                  )
      Appellant.                  )    (Rape of a Child)



FOR THE APPELLANT:                     FOR THE APPELLEE:

JOHN E. APPMAN                         JOHN KNOX WALKUP
100 Main Street N.                     Attorney General and Reporter
P.O. Box 99
Jamestown, TN 38556-0099               ELLEN H. POLLACK
                                       Assistant Attorney General
                                       Cordell Hull Building, 2nd Floor
                                       425 Fifth Avenue North
                                       Nashville, TN 37243-0493

                                       WILLIAM PAUL PHILLIPS
                                       District Attorney General

                                       JOHN W. GALLOWAY, JR.
                                       Assistant District Attorney General
                                       P.O. Box 10
                                       Huntsville, TN 37756-0010




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                           OPINION



         The defendant, Charles David Bowling, was convicted by a Scott County jury

of twelve (12) counts of rape of a child, Class A felonies. The trial court sentenced

him to concurrent terms of twenty-five (25) years for each conviction. On appeal,

defendant challenges the sufficiency of the convicting evidence. After a thorough

review of the record before this Court, we affirm the judgment of the trial court.



                                            FACTS



         In 1989, defendant began living with the victim and her mother, Debbie. The

victim, J.M.,1 was approximately twelve months old at the time. Defendant and

Debbie subsequently had a child and decided to build a home together. In the fall

of 1992, Debbie began nursing school. Soon thereafter, defendant quit his job and

began babysitting the children while Debbie attended school.

         For the next two and one-half (2 ½) years, defendant sexually penetrated

J.M. vaginally, orally or anally on numerous occasions. The victim, who was eight

(8) years old at the time of trial, testified to the various instances of rape at trial.

With reference to the particular counts of the indictment, a synopsis of the victim’s

testimony is as follows:

         Count One: The victim testified that, when she was changing clothes,
         defendant “came in and he pulled his clothes off and started putting
         his private in mine.” There was testimony from other witnesses that
         this event occurred on or about April 6, 1995.

         Count Two: The victim testified that, on the first occasion that she
         could remember, defendant followed her into her bedroom and “pulled
         down my pants and pulled down his pants and he was so quick about
         it, and I couldn’t do nothing about it ‘cause I was afraid that he would
         like hurt me and so I couldn’t do anything about it and he just put his
         private part in mine.”

         Count Three: The victim described how the defendant orally
         penetrated her, stating that defendant “made me suck on him - on his
         private.”



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             It is the policy of this Court not to reveal the names of minor victims of sexual
abuse.

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      Count Four: The victim testified that around Christmas 1992, she “got
      on the bed with [defendant] because I did love him and - well, he
      woke up and he just pulled down my pants and started doing it.”

      Count Five: The victim described how the defendant put his “private
      part” in hers while they were standing in the kitchen. “[H]e just took
      me into the kitchen and he left the lights off and I had to back up
      against the counter and he - he just pulled down my pants and started
      doing it.”

      Count Six: The victim testified that defendant put his penis in her
      “private part” while they were in the children’s playroom.

      Count Seven: The victim testified that defendant sexually penetrated
      her in the “tool shed,” stating that defendant “picked me up on [a
      stool] and pulled down my pants and I had to [scoot down] . . . and he
      - he got something to stand on so he would be tall enough to put his
      in mine.”

      Count Eight: The victim testified that defendant put his penis in her
      “private” while she was lying on the couch in the living room.

      Count Nine: The victim testified that defendant, after discovering the
      victim jumping on defendant’s bed, pulled down the victim’s pants and
      pulled down his own and put his penis in her “private part.”

      Count Ten: The victim described how defendant put his penis in her
      “private part” while they were in the bathroom.

      Count Eleven: The victim testified that defendant anally penetrated
      her while they were in his bedroom. She testified that he put his penis
      in “the back part of my private.”

      Count Twelve: The victim described how defendant penetrated her in
      defendant’s bedroom early one morning after her mother left for
      school. She testified that, after he affirmed that the victim’s younger
      sister was asleep, he “just started doing it.”

      In early April 1995, Debbie arrived home from school and found J.M. in the

bathroom. J.M. was “tearful” and complained that her “butt [hurt] real bad.” Upon

examining her daughter, Debbie “noticed that [the victim] was very swollen, she was

very red, she was almost purple she was so red, and [Debbie] also noticed what

[she] thought was a vaginal discharge.”

      On April 10, approximately one week later, J.M. informed Debbie that the

defendant had been sexually abusing her. J.M. was subsequently examined by a

nurse practitioner and a gynecologist.        Both examinations revealed findings

consistent with vaginal penetration.

      When the police attempted to arrest defendant, they found him in his

bedroom with a gun. He had taken an overdose of aspirin and Antivert and



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informed the police that he “wasn’t going to allow [them] to arrest him, he was going

to die.” Eventually, the police were able to subdue the defendant and take him to

a hospital.

       Defendant testified on his own behalf at trial. He denied having a sexual

relationship with J.M. and suggested that most of the state’s witnesses “lied about

everything.” He stated that he attempted suicide because Debbie ended their

relationship. He claimed that J.M. witnessed Debbie and him having sexual

relations, thus giving J.M. the knowledge to testify as to the specifics of the alleged

sexual misconduct.

       Defendant was charged with twenty (20) counts of rape of a child. Counts

Two through Twenty were identical and alleged that the defendant “on or about

Aug.-Sept. 1992 to April 5, 1995 . . . did unlawfully, feloniously, intentionally,

knowingly, and recklessly sexually penetrate [the victim], who was then less than

13 years of age.” Count One also alleged the same facts but specified the date of

April 6, 1995.   At the conclusion of the state’s proof at trial, the state made an

election of twelve (12) offenses and dismissed eight (8) counts. The state’s election

was written and specifically described twelve (12) separate incidences of sexual

penetration.

       The jury returned guilty verdicts on all twelve (12) counts of rape of a child.

The trial court sentenced defendant to concurrent terms of twenty-five (25) years for

each conviction. Defendant now brings this appeal as of right.



                        SUFFICIENCY OF THE EVIDENCE



       Defendant’s sole issue on appeal is whether the evidence is sufficient to

sustain the jury’s findings of guilt. In making this argument, defendant points to

specific portions of the victim’s testimony detailing the instances of sexual abuse.

He contends that some of the acts described by the victim are “physically

impossible.” He further suggests the victim’s possible motives for fabricating her

testimony. Therefore, he argues that this Court, in determining the sufficiency of the



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evidence, should disregard the victim’s testimony.

                                         A.

       When an appellant challenges the sufficiency of the evidence, the standard

of review is whether, after viewing 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, 318, 99 S.Ct. 2781,

2789, 61 L.Ed.2d 560 (1979); State v. Evans, 838 S.W.2d 185, 190-91 (Tenn.

1992); Tenn. R. App. P. 13(e). On appeal, the state is entitled to the strongest

legitimate view of the evidence and all reasonable or legitimate inferences which

may be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

This Court will not reweigh the evidence, reevaluate the evidence, or substitute its

evidentiary inferences for those reached by the jury. State v. Carey, 914 S.W.2d

93, 95 (Tenn. Crim. App. 1995). Furthermore, in a criminal trial, great weight is

given to the result reached by the jury. State v. Johnson, 910 S.W.2d 897, 899

(Tenn. Crim. App. 1995).

       Once approved by the trial court, a jury verdict accredits the witnesses

presented by the state and resolves all conflicts in favor of the state. State v.

Williams, 657 S.W.2d 405, 410 (Tenn. 1983). A jury's guilty verdict removes the

presumption of innocence enjoyed by the defendant at trial and raises a

presumption of guilt. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). The

defendant then bears the burden of overcoming this presumption of guilt on appeal.

State v. Black, 815 S.W.2d 166, 175 (Tenn. 1991).

                                         B.

       The defendant contends that the victim’s testimony was unbelievable. It is

well-established that the credibility of witnesses, the weight to be given their

testimony, and the reconciliation of conflicts in the proof are matters entrusted

exclusively to the jury as trier of fact. State v. Brewer, 932 S.W.2d 1, 19 (Tenn.

Crim. App. 1996). Furthermore, a full review of the victim’s testimony reveals that

she related intimate knowledge of each offense of which defendant was convicted.

       Moreover, the physical evidence corroborated the victim’s testimony. A



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gynecologist and nurse practitioner both testified that their physical examinations

indicated that the victim’s hymen was not intact. Therefore, both concluded that the

victim’s vagina had been penetrated.

       It was for the jury to determine whether the victim was truthful. The jury’s

verdict reflects that it found the victim to have been truthful. We are not at liberty

to conclude otherwise.

       We find that there is sufficient evidence from which a rational trier of fact

could find defendant guilty of each count of rape of a child beyond a reasonable

doubt. Accordingly, the judgment of the trial court is affirmed.




                                                  JOE G. RILEY, JUDGE



CONCUR:




JOSEPH M. TIPTON, JUDGE




CURWOOD WITT, JUDGE




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