        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT NASHVILLE                 FILED
                       MARCH SESSION , 1997            November 12, 1997

                                                       Cecil W. Crowson
                                                      Appellate Court Clerk
STATE OF TENNESSEE,            )   C.C.A. NO. 01C01-9509-CR-00290
                               )
     Appellee,                 )
                               )   DAVIDSON COUNTY
                               )
V.                             )
                               )   HON. SETH NORMAN, JUDGE
MICHAEL LYNN WALTON,           )
                               )
     Appe llant.               )   (RAPE AND OFFICIAL MISCONDUCT)



FOR THE APPELLANT:                 FOR THE APPELLEE:

LIONEL R. BARRETT, JR.             JOHN KNOX WALKUP
Attorney at Law                    Attorney General & Reporter
Washington Square Two, Ste. 417
222 Se cond A venue N orth         MICH AEL J. F AHEY , II
Nashville, TN 37201                Assistant Attorney General
                                   2nd Floor, Cordell Hull Building
                                   425 Fifth Avenue North
                                   Nashville, TN 37243

                                   VICTO R S. JO HNS ON, III
                                   District Attorney General

                                   JOHN ZIMMERMAN
                                   Assistant District Attorney General

                                   KIMB ERLY L. HATTAW AY-HAAS
                                   Assis tant D istrict Atto rney G enera l
                                   Washington Square Two, Suite 500
                                   222 Se cond A venue N orth
                                   Nashville, TN 37201


OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                 OPINION

             The Defendant, Michael Lynn Walton, appeals as of right pursuant

to Rule 3 of the Tennessee Rules of Appellate Procedure. He was convicted of

two coun ts of offic ial misconduct in one trial and two counts of rape in another

trial. Both trials were jury trials in the Criminal Court of Davidson County. He

was sentenced to one (1) year on each of the official misconduct convictions and

eight (8) years on one rape conviction a nd nine (9) yea rs on the other ra pe

conviction. These se ntences we re ordered to run concurrently which left the

Defendant with an effective sentence of nine (9) years. The Defendant argues

three issues in this ap peal: (1) whether the evidence wa s insufficient to suppo rt

the convictions for rape; (2) whether the trial court erred in denying the

Defenda nt’s motion for an instruction as to statutory rape as a lesser included

offense; and (3) whether the trial court erred in denying probation as to the

counts of official misc onduc t. We affirm the jud gmen t of the trial cou rt.



                                          I.



             The Defe ndan t’s first issu e is whether the evidenc e was s ufficient to

support the verdict of the jury for the Defendant’s conviction for rape. When an

accused challenges the su fficienc y of the c onvictin g evide nce, th e stan dard is

whether, 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 b eyond a reason able do ubt. Jackson v. Virginia , 443 U.S. 307, 319

(1979). Questions concerning the credibility of the witnesses, the weight and



                                         -2-
value to be g iven the evidence , as we ll as all factual issues raised by the

evidence, are reso lved by the trier of fact, not th is court. State v. Pappas, 754

S.W.2d 620, 623 (Tenn. Crim. App.), perm. to appeal denied, id. (Tenn. 198 7).

Nor may this court reweigh or reevaluate the evidenc e. State v. Cabbage, 571

S.W .2d 832 , 835 (T enn. 19 78).



             A jury verdict approved by the trial judge accredits th e State ’s

witnesses and resolves a ll conflicts in fa vor of the S tate. State v. Grace, 493

S.W.2d 474, 476 (Tenn. 1973). On appeal, the State is entitled to the strongest

legitimate view of the e vidence and all infere nces the refrom. Cabbage, 571

S.W.2d at 835. Because a verdict of guilt removes the presumption of innocence

and replaces it with a presumption of guilt, the accu sed h as the burde n in this

court of illustrating why the evidence is insufficient to support the verdict returned

by the trier of fact. State v. Tug gle, 639 S.W.2d 913, 91 4 (Ten n. 1982 ); Grace,

493 S.W.2d at 476.



             In his first trial, the Defe ndant w as con victed of two counts of official

misconduct and there was a mistrial on the rape charges. At a second trial, the

Defen dant wa s convicte d of the two counts o f rape. The proof in that trial is as

follows.



             The Defendant was a police officer with the Metro politan Nash ville

Davidson Coun ty Police D epartm ent. W e will refer to the m inor victim in this

case by his initials, J.C., rather than by his full name. In July of 1992, thirteen-

year-o ld J.C. ran away from his home in Kentucky and came to Nashville. He

made his way to Riverfront Park in the downtown area of Nashville. The first

                                          -3-
evening J.C. was at Riverfron t Park the Defendant approached him.               The

Defendant was dressed in his police uniform even though he was off-duty. He

led J.C. to his personal car and drove him to his home in the Bellevue area. On

the way to Bellevue, the Defe ndan t stopp ed at M cDon ald’s a nd go t the victim

something to eat. When they arrived at the Defendant’s home they ordered

pizza.   J.C. took a shower and was given clothes by the Defendant.              The

Defendant then took a show er and w as dres sed in on ly a towel. He to ld the

victim he co uld sle ep in the m aster b edroo m, an d the D efend ant wo uld sleep on

the couch downs tairs. The victim wen t to sleep and awoke to the Defendant

rubbing the victim’s penis. The Defe ndan t then p hysica lly held J .C. do wn wh ile

he proceeded to eng age in fellatio and then anal intercourse. The boy struggled,

but was unab le to get away from the Defendant. The Defendant then went

downstairs, and J.C. went to sleep. Early the next morning the telephone rang,

and J.C. answered the phone. He then hand ed it to the D efenda nt. Alberta

Harris testified that she called the Defendant’s house sometime after 6:30 a .m.,

but before 12:30 p.m., July 27, 1992. She stated that a youn g ma le answered

the phone. She asked to speak with the Defendant, and the Defendant then

came to the phone. The Defendant dropped the victim off at Riverfront Park later

that morning and told him he would be back after he got off his shift at 11:00 p.m.




             J.C. was still in the Riverfront Park area wh en the D efenda nt’s shift

was over. The Defendant told J.C. that he was going to take him to J uvenile

Detention, however, the Defendant ag ain drove the victim to his house. The

Defendant again held J.C. down and proceeded to engage in fellatio and anal

intercourse. J.C. then went to sle ep. At so me po int during the ev ening, Je ff

                                         -4-
Wh ite came to visit the Defendant. The Defendant told J.C. to hide in the closet.

He heard the Defendant and the other man discuss swapping police radios and

an upcom ing party. The male visitor testified at trial that he and the Defendant

did indeed discuss a police radio and getting together that weekend. The ne xt

morning, the Defe ndant d ropped J.C. off at Vand erbilt U niversity . The v ictim

spent most of the day there and then walked to Riverfront Park.



             That evening the victim c ame in to contac t with two men from

Murfreesbo ro who were downtown to enjoy the nightlife. The victim told them

several stories as to why he was in that area at that time of night. He persuaded

the two men to drive h im out to Bellevue to find the Defendant’s apartment and

they ultima tely becam e frustrated with the boy. T he me n decide d to take h im to

the police in downtown Nashville. The first officer they encountered at the station

yelled at J.C. when he said that he was n ot a run away , told the men to leave him

in Riverfront Park, and said that if he was a runaway the officer would pick him

up later. H owev er, the tw o me n did n ot wan t to leave J.C. alo ne in R iverfront

Park. The m en the n des cribed bad th ings th at cou ld happen to a ch ild left on his

own in the world. J.C. began to cry and agreed to be taken to the police station.




             The men took J.C. to the Criminal Justice Building. There they

received help from Officer Nicolas Marino who, at the time of the incide nt, worked

in the Warrants Division. J.C. was brought into the building, and he was crying.

The officer attempted to find out whether J.C. was a runaw ay. Officer Marino

gave J.C. something to eat and drink. He asked J.C. what his name was and

J.C. gave him a false name. While J.C. told Officer Marino a false story, another

                                          -5-
officer, Officer Wa ggone r, called Ke ntucky a nd disco vered J.C . was a runaway,

was thirteen years old, and had stolen a car. They confronted J.C. with th is

information and then took him over to the Juven ile facilities . At this point J .C. told

the officers that he had been staying with a p olicem an wh ile he h ad be en in

Nash ville. One of the o fficers s tated th at he d id not th ink an officer w ould take

him to his house a s the departm ent policy was to tak e runaways to the J uvenile

facility. J.C. told them that the man with whom he had been staying had a badge,

uniforms in his closet, a p olice radio , and a pa tch that rea d David son Co unty

Metro Police . The v ictim told the officers that the policeman he had stayed with

for a couple of nights was named Mike, but that he could not remember his last

name. Officer Waggoner asked the victim if the policeman did anything to him,

and J .C. ind icated that the officer h ad en gage d in fella tio with him. J.C. gave a

physical description of “Mike” to Officer W aggone r.



               Officer Miller was called to meet the other officers and J.C. at the

Juven ile facility. O fficer M iller was to con tinue th e inves tigation into the victim’s

assertions. At the time of the incident, Officer Miller worked in the Personal

Crimes Homicide Division. He received informati on from J.C. concerning the

perpetrator being a Me tro police officer, a general de scription of the area w here

he was taken and a physical description of the officer. He was also told that the

officer’s name was M ike, bu t that the victim did not know the officer’s last name.

J.C. also gave O fficer Miller a desc ription o f the offic er’s ca r. Office r Miller d id not

recognize the offic er as d escrib ed by J .C.. At th is time, the victim also described

what ha d happ ened to him wh ile he was with Mike .




                                              -6-
              Officer Miller the n had the victim take h im to th e office r’s

condominium. They also called uniformed officers who were working in the area,

and they were able to loc ate the condominium. The victim gave Miller a detailed

description of the re siden ce. W hen th ey arrive d at the cond omin ium, th e vehic le

that the victim had describe d was p arked in fro nt of the bu ilding. Serg eant Sm ith

stayed in the car with the victim, while Officer Miller and one of the uniformed

officers, Officer Chestnut, went to the front door. Another uniformed officer went

to the back door. The Defendant came to the front door, and Officer Chestnut

recognized him as a Metro Police Officer. The officers identified themselves and

told the Defendant about the allegation. The Sergeant and the victim had a clear

view of the De fendan t’s door an d the Se rgeant w aved to O fficer Miller to ind icate

that the victim had re cogn ized th e Def enda nt as th e office r who h ad tak en him

home. The Defendant gave the officers consent to search the residence. Officer

Miller asked if there had been any thefts or break-ins at the residence, and the

Defendant indicated that there had not. The Defendant and Officer Miller then

walked through the house. Officer Miller told the Defendant that he wanted to

make sure nothing had been damaged, but the real reason was that Officer Miller

was attempting to verify the victim’s desc ription o f the res idenc e. The victim’s

descriptio n was a ccurate .



              J.C. was the n broug ht to confront the Defendant. When he was

brought to the Defendant, Defendant turned pale and started shaking. J.C. was

wearing the De fenda nt’s clothes at the time. The Defendant denied that he knew

the victim, but did acknowledge that J.C. was wearing his clothes. However, the

Defendant stated that he did not know how the victim got his clothes. J.C. then

made an identifica tion of the Defendant. The Defendant told the victim that he

                                          -7-
was crazy. The officers then called the Sexual Abuse Division and evidence was

gathered at the Defendant’s residence.



              The victim’s fingerprints were found inside the Defendan t’s residence

on a bottle of co logne and in side th e Def enda nt’s veh icle on the pa ssen ger’s

side. A pair of ex ercise sh orts and a t-shirt which were fo und in the De fenda nt’s

hamper were se nt to be tes ted for bo dy fluids. Th e lab wa s unab le to test the t-

shirt. Many stains were on the shorts. The victim and the Defend ant would ha ve

had distinguishable semen, but not distinguishable saliva. A semen stain that

could have been from the victim was found on the shorts. There was also a

saliva stain, which could have be en from either the vic tim or the D efenda nt. A

golf shirt and a pair of jeans that the victim was wearing when taken to the

Defe ndan t’s residence by the other officers were also sent to the lab. A trace

amount of semen stain was found on the golf shirt. There was no testimony

regardin g the origin of this stain.



              The Defendant testified at trial. His version of the facts is as follows.

He denied that he raped the victim. When Alberta Harris called, Defendant

claimed his friend, Darryl Witkowski, answered the phone. Mr. Witkowski was in

his early twenties at the time of the incident. He was staying at the De fenda nt’s

residence because he was working on his car at the Defendant’s house. The

Defendant was not aw are that his shorts were in the hamper, but knew that they

were his shorts. The Defendant had just moved in his condominium and his

parents and Mr. W itkows ki also h ad ac cess to his re siden ce. Mr . W itkows ki did

not have a key, but the fron t door kn ob cou ld be turne d in such a way as to get

in the house. Mr. W itkowski knew h ow to get in the res idence in this m anner.

                                          -8-
Mr. Witkowski would also use the Defe ndan t’s car w hen h e had the De fenda nt’s

permission to do so. The Defendant stated that Witko wski look ed like him . He

was the same height and size and also had a receding hairline.



              The Defendant acknowledged that the victim had on his clothes

when he was confronted by the other officers. The Defendant denied that he

took the victim to his condominium or that the victim was ever in the condominium

at the same time he was there. The Defendant had no answers as to how the

victim could describe his condominium, how the semen stains were on his shorts,

or how the victim knew of the conversation between the Defendant and Jeff

White.



              W e conclude that there is sufficient evidence for a rational trier of

fact to find the D efenda nt guilty of rap e.      The Defendant argues that the

conviction cannot be supported based on the element of force or coercion

because the victim returned to the Defendant’s home a second night. The

evidence set ou t at trial sh ows th at the D efend ant ph ysically h eld the victim down

both nights wh ile perpetra ting sexua l acts on h im. There is sufficient evidence

to convict th e Defe ndant o f rape.


              This issu e is withou t merit.



                                           II.



              The Defendant’s second issue is that the trial court erred in not

instructing the jury o n statu tory rap e as a lesser included offense of rape. The

offense of rape, of w hich the D efenda nt was co nvicted, is the “unlawful sexual

                                           -9-
penetration of a victim b y the defe ndant or of the defend ant by a victim

accompanied by any of the following circumstances: (1) Force or coercion is used

to accomplish the act. . . .” Tenn. Code Ann. § 39-13-503. Statuto ry rape is

defined as “sexual penetration of a victim by the defendant or of the defendant

by the victim when the victim is at least thirteen (13) but less than eighteen (18)

years of age and th e defe ndan t is at least four (4) years o lder than the victim.”

Tenn. C ode Ann . § 39-13-506 (a).



                This court held in State v. Woodcock , 922 S.W.2d 904 (Tenn. Crim.

App. 1995), that statuto ry rape is not a le sser in clude d offen se of ra pe. Th is

court stated:


      “[A]n offens e is ne cess arily inclu ded in anoth er if the elements of the
      greater offense, as those elements are set forth in the indictme nt,
      include, but are not congru ent with, all the eleme nts of the le sser.”
      Howard v. State, 578 S.W .2d 83, 85 (Tenn . 1979). It is clear that
      the offense of statutory rape includes an age element whereas the
      offense of rape does not, and the offense of rape includes the
      element of force whereas th e offense of statutory ra pe doe s not.
      Thus , statutory rap e is not a les ser includ ed offen se of rap e . . . .


Woodcock , 922 S.W.2d at 913.



                W e agree with this analysis. Statutory rape is not a lesser included

offense of rape. Neither is statutory rape a “lesse r grade ” offens e of rap e. This

court recen tly obse rved in State v. Michael Lynn Ealey, C.C.A. No. 03C01-9609-

CR-00333, Greene County (Tenn. Crim. App., Knoxville, June 17, 1997) (no R ule

11 application filed), that statutory rape is not a lesser grade offense of the

offense of rape o f a child. Our court stated tha t even th ough statuto ry rape is

included in the same Part of Tennessee Code Annota ted as sexua l assau lt


                                          -10-
crimes, which inc ludes rap e, this doe s not ipso facto make statutory rape a lesser

grade or offense of a sexual assault crime. Specifically, our court stated:


      Moreover, the very nature of the statutory rape o ffense is
      funda men tally different from the sexual assault crimes. For
      instance, the sexual assault crimes all require some form of
      “unlaw ful” contact betwe en the accu sed and the victim; statutory
      rape does not. The age of the defendant is irrelevant with respect
      to all of the sexual assault crimes; it is a crucial element of sta tutory
      rape. All of the sexual assault crimes contemplate the lack of
      effective consent by the victim; statutory rape contemplates
      circumstances in whic h the s exual r elation s are a dmittedly
      cons ensu al. In short, neither [State v. T rusty, 919 S.W.2d 305
      (Tenn. 1996)] nor the statutory scheme nor a consideration of the
      nature of statutory rape convinces us that it is a lesser grade or
      class of the rape of a child offense charged in this case.


Ealey, slip op. at 9.



             W e agre e with th e ana lysis in Ealey and hold that sta tutory rape is

not a less er grade or class o f the offens e of rape charge d in this cas e.



             There fore, this issu e is withou t merit.




                                          III.



             The Defenda nt’s third issue is that the trial court erred in denying

probation as to the counts of official misconduct.         A defendant who “is an

espe cially mitigated or standard offender convicted of a Class C, D, or E felony

is presumed to be a favorable candidate for alternative sentencing options in the

absence of evidence to the contrary.” Tenn. Code Ann. § 40-35-1 02(6). Our

sentencing law also provides that “convicted felons committing the most se vere

                                         -11-
offenses, possessing criminal histories evincing a clear disregard for the laws and

mora ls of society, a nd evinc ing failure o f past efforts at rehab ilitation sh all be

given first priority regarding sentences involving incarceration.” Tenn. Code Ann.

§ 40-35-1 02(5). Thus, a defendant sentenced to eight years or less who is not

an offender for whom incarceration is a priority is presume d eligible for alternative

sentencing unless sufficient evid ence re buts the presumption. However, the act

does not provide that all offenders who meet the crite ria are entitled to such re lief;

rather, it requires that sentencing issues be determined by the facts and

circumstances presen ted in eac h case . See State v. Taylor, 744 S.W.2d 919,

922 (T enn. C rim. App . 1987).



              Additionally, the princip les of sentencing reflect that the sentence

shou ld be no greater than that deserved for the offense committed and should be

the least severe measure necessary to achieve the purposes for which the

senten ce is imp osed. Tenn . Code Ann. § 4 0-35-10 3(2) - (4). The court s hould

also consider the potential for rehabilitation or treatment of the defendant in

determ ining the s entenc e alterna tive. Tenn . Code Ann. § 4 0-35-10 3(5).



              When impo sing a sente nce o f total co nfinem ent, ou r Crim inal

Sentencing Reform Act mandates the trial court to base its decision on the

considerations set forth in Tennessee Code Annotated section 40-35-103. These

considerations which m ilitate against a lternative se ntencing include: th e need to

protect society by restraining a defendant having a long history of criminal

condu ct, whether confinement is particularly appropriate to effectively deter

others likely to commit a similar offense, the need to avoid depreciating the

seriousness of the offense, and the need to order confinement in cases in which

                                          -12-
less restrictive measu res have often or re cently bee n unsu ccessfu lly applied to

the defe ndant. T enn. C ode An n. § 40-35-1 03(1) (A ) - (C).



              In determining whether to grant probation, the judge must consider

the nature and circumstances of the offense, the defendant’s criminal record, his

background and social history, his present condition, including his physical and

mental condition, the deterrent effect on other criminal activity, and the likelihood

that probation is in the best interests of both the p ublic and the defen dant. Stiller

v. State, 516 S.W.2d 617, 620 (Tenn. 1974). The burden is on the D efenda nt to

show that the se ntence he rece ived is imp roper an d that he is entitled to

probatio n. State v. Ashby, 823 S.W .2d 166 , 169 (T enn. 19 91).



              The Defendant’s total sentence for his combined convictions is nine

(9) years. How ever, th e Def enda nt’s co nviction s for offic ial misc ondu ct ma y still

be considered for probation.        If a Defendant’s multiple conviction sentence

structure exceeds eight years, the individual convictions can still be considered

for probation if they fall within the probation eligibility criteria. Tenn. Code Ann.

§ 40-35-303(a), Sentencing Commission Comments; State v. Langston, 708

S.W .2d 830, 832 -33 (Tenn . 1986).



              The Defe ndan t’s con victions for officia l misconduct are Class E

felonies. He was sentenced to one year for each count as a Range I Standard

Offender. There is a presumption that the Defendant is eligible for probation as

to his official miscondu ct convictions. How ever, the trial court denied his request

for proba tion on the se cou nts.




                                           -13-
              W e agree w ith the trial cou rt that the Defendant should not be

granted proba tion for h is official misconduct convictions. The Defendant does

have an excellent work history and social history. He has never been convicted

of another crime. However, we must emphasize the seriousness of this crime.

The Defe ndan t, a polic e office r, while in uniform , picked up a youn g ma le

runaway and took him back to his house and raped him. A police officer is an

official who people should be able to turn to without hesitation or fear for their

personal safety in times of trouble. The circumstances of an offense may be an

approp riate factor for the denial of p robation . State v. Wiseman, 643 S.W.2d 354

(Tenn. Crim. A pp. 198 2). W e conclude that the circumstances of this offense

suppo rt the den ial of proba tion.



              W e also note that the Defendant’s conviction for rape where he was

sentenced to eight yea rs would be eligible fo r probatio n. However, the Defendant

does not appeal on these grounds. We conclude that even if he had appealed

on this issue he would be unsuccessful for the reasons stated above, and

because a breach of trust may be the basis for the den ial of proba tion. Woodson

v. State, 608 S.W .2d 591 (Te nn. Crim. Ap p. 1980).



              There fore, this issu e is withou t merit.



              We affirm the ju dgme nt of the trial co urt.




                                      ____________________________________
                                      THOMAS T. W OODALL, Judge



                                          -14-
CONCUR:



___________________________________
JOSEPH M. TIPTON, Judge


___________________________________
 JOE G. RILEY, Judge




                             -15-
