           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT JACKSON
                                      Assigned on Briefs May 8, 2002

                    STATE OF TENNESSEE v. MICHAEL WILLIAMS

                      Direct Appeal from the Criminal Court for Shelby County
                                No. 99-08306    J. C. McLin, Judge



                          No. W2001-01925-CCA-R3-CD - Filed June 20, 2002


The defendant, Michael Williams, was convicted of rape, a Class B felony, and sentenced to thirty
years in the Tennessee Department of Correction as a violent offender. In his appeal, he argues that
the evidence at trial was insufficient to support his conviction for rape. However, we disagree and
affirm the judgment of the trial court.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which DAVID G. HAYES and JERRY L.
SMITH, JJ., joined.

A C Wharton, Jr., Shelby County Public Defender; Tony N. Brayton, Assistant Public Defender (on
appeal); and Mary K. Kent, Assistant Public Defender (at trial), for the appellant, Michael Williams.

Paul G. Summers, Attorney General and Reporter; Braden H. Boucek, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Patience Branham, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                                        OPINION

                                                         FACTS

        The victim, L.T.,1 testified that she was 18 years old as of March 29, 1999, the day she was
raped. That evening, she played basketball at the Greenlawn Gym in Memphis until around 9:30
p.m. and then walked to her mother’s house on Georgia Street to pick up some money to buy diapers
for her one-year-old son. L.T. then left her mother’s house to walk home to her grandmother’s
apartment in the Foote Homes housing project, which was about thirty-five minutes away. She said



       1
           It is the policy of this court to identify the victims of sexual abuse by their initials only.
that she had made this walk only two times before that evening, and described what occurred as she
walked to her grandmother’s apartment:

               A I was coming from my mother’s house. I was going through the
               Cleaborn Home Development when him and another guy – they were
               behind me from the time I left out of my mother’s house to the time
               I made it there, but I didn’t pay it any attention cause it was like they
               were just walking behind me. But once I –

               Q I hate to interrupt you . . . [w]hen you said him, and you pointed
               somewhere, can you describe for the record where it was you
               pointed?

               A Him with the blue shirt on with the ink pin [sic] up to his chin.

                  MS. BRANHAM: Your Honor, for the record she has identified
               Michael Williams, the defendant.

                   THE COURT: Let the record so state.

               Q Did you know who he was?

               A No.

               Q Had you seen him before?

               A No.

               Q Did you know the other person?

               A No.

               Q Had you seen him before?

               A No.

               Q And what happened? You can go back to where they were
               walking behind you.

               A Once I got up – it’s kind of like dark by this development – and
               once I got up there by this apartment, he walked in front of me. [The
               defendant’s] friend walked behind me and put the pistol right here to
               my neck.

                                                 -2-
               Q All right. Now who put the pistol to your neck?

               A His friend.

               ....

               Q All right. And what happened then?

               A Then they took me in this abandoned house.

                               (Pause.)

               Q [L.T.], can you tell us what happened when you got in there?

               A Him and his friend raped me, man.

               Q Now, I’m sorry, but you’re going to have to go into a little bit of
               detail?

               A I had on these pants, these jogging pants like the basketball
               players wear. They come off. They snap off real easy. All you have
               to do is pull on them, and they come off. And he pulled them off.

        L.T. identified photographs of the exterior and interior of the abandoned apartment in the
Cleaborn Homes housing project where the rape occurred. She testified that the defendant and the
other man grabbed her and pulled her into the back door and then into the kitchen. The defendant
told her not to scream. The two men forced her down onto the kitchen floor. L.T. described what
happened next:

               Q Now, when they approached you there in the Cleaborn Projects,
               where they took to you [sic] to the house, what did they say to you?

               A They didn’t say much of nothing. You know, he just like grabbed
               me, like come on. He took a necklace off my neck. And then once
               we got in there, he snatched the pants off. He went first and then his
               friend gave the gun to him and he held it and his friend raped me.

               Q All right. Now, did both of them rape you?

               A Yes, ma’am.

               Q Now, when you say rape, tell me exactly what it is they did to
               you?

                                                -3-
A He took something he know [sic] he wasn’t supposed to take
because I wasn’t giving it to him.

Q And what did he do to you?

A He had sex with me.

....

Q Did he enter your body in any way?

A Yes.

Q And how did he do that?

A Like a person having sex, but he was kind of like forceful with it.

Q Was this the private parts of his body?

A With his penis.

Q And what part of your body did he have sex with[?]

A My vagina.

Q Your vagina. Did he – was there an ejaculation?

A Yes.

Q Now, what happened then?

A Okay. After his friend went into the living room area on the
picture where I showed you all, he was like – like he turned his back.
When he got through, he was fixing ready [sic] to get up, I pushed
him up off of me, and I ran out the door by these two dudes that was
sitting up under the tree. And they was asking me what’s wrong with
me because I was putting my pants back on, but I wouldn’t tell them.
So they walked me to my grandmother’s house because they knew
my uncles. They grew up with my uncles.

   Once I got to my grandmother’s house, I didn’t tell my
grandmother what happened; I didn’t tell them what happened. I


                                 -4-
              called a teacher of mine, who I talk to all the time. I told her what
              happened, and she told me to give the phone to my grandmother.

        L.T. said she called her teacher, Gloria Taylor, and told her what had happened. She then
gave the phone to her grandmother who called the police. That evening, she was questioned by the
police about the rape and showed them the apartment where it had occurred. She then went to the
Memphis Sexual Assault Resource Center (“MSARC”). About a week after the rape, she identified
a photograph of the defendant while at police headquarters:

               Q And what happened when you came downtown to look at the
               mug book?

               A I was like – just like I was looking through it. And then I had
               saw [sic] his picture at first, but I didn’t stop by because I wanted to
               be sure that that was him. So I went on through it, but then I turned
               the book back over and I went back through it again, and I seen the
               picture again. And I told the lady that was there that that was him.
               And she had me sign my initials by the picture.

L.T. testified that she did not voluntarily go with the two men she encountered on March 29, 1999,
and she was scared because she thought they would kill her after they raped her. She kept “telling
them to stop, but they wouldn’t stop.”

        During cross-examination of L.T., defense counsel read aloud the statement L.T. gave to a
detective about a week after the rape:

               Q “[T]ell me in your own words what happened to you when you
               were walking on the east side of 591 Saint Paul?

               ANSWER: I had just come from my – over from my mother’s house,
               and I was headed to my grandmother[’s] house. These two guys had
               got behind me, one stepped in front of me and the other one, he
               grabbed me from behind and carried to [sic] the empty apartment
               where I was walking at. And once we got inside, both did what they
               did to me. The one with the gun pulled me in the house. The other
               guy came in the house and closed the door. And when they got
               inside, the light-skinned male [the defendant], he pulled my pants off
               and penetrated my vagina with his penis. And after he got up, the
               other male gave the gun to the light-skinned male, the dark-skinned
               one raped me. And then after the second one finished, I pushed him
               up and ran out the door where two guys were standing outside. And
               they asked me what had happened, and I told them that the two dudes


                                                 -5-
               were after me. And they walked me home. I didn’t tell them what
               just happened to me.”

Defense counsel then asked L.T. why she had failed to mention in her statement that one of the men
had stolen her necklace and why she had testified that the defendant was the second man to rape her
but said in her statement to the police that the defendant was the first man to rape her. L.T.
responded that she felt the necklace was not important and claimed that she told the detective taking
her statement that the defendant was the second man to rape her. She said she did not read the
statement before she initialed it.

        Also, during cross-examination, L.T. said that she was not physically injured from the rape,
that she did not know the defendant or the defendant’s family, and that she had never called the
defendant’s mother. She denied that she agreed to have sex with the defendant for seven dollars.

        Gloria Taylor testified that she was a special projects coordinator with the Memphis City
Schools, and knew L.T. from when she participated in a GED program in 1998. Taylor said L.T.
called her at about 11:00 p.m. on March 29, 1999, and said that she had been raped. L.T. said that
she did not want to tell her grandmother or the police what had happened. Taylor said that although
L.T. typically presented herself as a “hard girl” who could always take care of herself, she “knew
something was wrong [when she got the phone call] because [L.T.’s] hardness wasn’t there
anymore.” Taylor encouraged L.T. to tell her grandmother what had happened but did not, herself,
inform L.T.’s grandmother because she felt it was “[L.T.’s] place to tell her grandmother.” Taylor
stated that L.T. said the next day that she had, in fact, told both her grandmother and the police about
the incident.

        Officer Jimmy L. Daniels of the Memphis Police Department Sexual Crimes Child Abuse
Unit testified that he showed L.T. some mug books and took her statement. Daniels said that L.T.
identified the defendant in one of the photographs and printed and signed her name and wrote the
date and time on the back of the chosen photograph.

        Patricia Speck, the coordinator of nursing services at the MSARC, testified as an expert in
forensic nursing. She said that Nancy L. Miles, a nurse clinician who was out of the country at the
time of the trial, had examined L.T. on the night of the rape. According to the information listed on
L.T.’s sexual assault kit, Miles collected the following evidence: a dry blood standard, vaginal
slides, pubic hair combings, two vulvar swabs, four vaginal swabs, and two saliva standard swabs.
Speck said that L.T.’s vaginal slide indicated the presence of nonmotile sperm and that the report
showed that L.T. had no trauma in the genital area. However, Speck explained that if L.T. had
previously given birth to a child, she “would expect . . . less trauma because the tissue’s already been
stretched.”

        Margaret Aiken, a forensic nurse and sexual assault nurse examiner with the MSARC,
identified the defendant as the suspect from whom she took a blood sample, putting it into the
suspect’s kit which she labeled and sealed.

                                                  -6-
        Hyum Kim, a forensic scientist with the Memphis Police Department, testified that he
collected evidence, consisting of the suspect’s kit and the victim’s kit and underwear, from
MSARC’s secured facility and forwarded it to the Tennessee Bureau of Investigation (“TBI”)
laboratory for DNA analysis.

        Donna Nelson, a special agent/forensic scientist with the TBI, testifying as an expert in the
field of serology, said that DNA testing revealed that the sperm found on L.T.’s vaginal swab
belonged to the defendant. Following this testimony, the State rested its case in chief.

        The defense’s first witness was Mary Williams, the defendant’s mother, who said that she
talked to L.T. on the telephone approximately two months after the defendant was arrested.
Williams said that L.T. identified herself as the woman her son had raped and promised to drop the
charges in exchange for money. L.T. told her that two men had raped her, but she was only able to
identify the defendant “because [he] was right in her face.” On cross-examination, Williams
admitted that she had never met L.T. before and did not recognize the voice on the phone as L.T.’s.

        The defendant then testified, admitting that he had several prior convictions for robbery and
burglary and had just finished serving his sentence on March 29, 1999, the day that L.T. said he
raped her. He testified that he arrived home from prison at approximately 9:30 p.m. that evening and
asked his mother for money to buy some “snacks.” She gave him seven or eight dollars, and he left
her house at about 10:00 p.m. to walk to a nearby Mapco store. En route, he saw two women
walking down Vance Street. Thinking they were prostitutes, he approached L.T. and asked if she
was “working” that night. He told L.T. that he could pay her only seven or eight dollars, and she
eventually agreed to this price. He said that L.T. initially said they could go to a “little apartment,”
but because it was locked, they went behind Vance School instead. The defendant described his
state of mind at the time he approached L.T.:

                      So in my mind, I ain’t fixing to give this girl no money. That’s
                 all, you know what I’m saying. Y’all can tell them I rub it in. I’m
                 just being straightforward. I wasn’t fixing to give her no money. My
                 thing – I was – I’m fixing to deceive her and manipulate her. I’m just
                 going to have sex with her.

The defendant testified that he and L.T. struggled over the money during and after the encounter, and
he ultimately took the money from her shoe. Four months later, when he was arrested, he told the
police, “I ain’t never been no rapist. . . . I’ve been a robber . . . I burglarized . . . The issue is I didn’t
rape.”

        The defendant theorized that L.T. accused him of rape out of revenge: “People kill for – just
for revenge. I grew up in the hood, so I know. . . . [S]he just went to the extent about revenge. I
didn’t have no – no remorse about taking seven dollars from her. So now she going to the – to the
extreme.”


                                                     -7-
       The defendant also said that he voluntarily submitted to the DNA test, and that although he
and L.T. had sex, he did not rape her:

                   I’m just saying – I’m just saying – say [sic] ain’t never give me
               no DNA test or nothing. They asked did I volunteer – I volunteered
               for what I told you for what I did. I was honest about what I did. I
               had sex with this girl. I never did rape or force or take nothing from
               her. I never did.

                   Rape is by force. I know what rape is. I manipulated the girl out
               of something. Making her think that I was going to give her some
               money when I did give her the money, you know what I’m saying.
               I took the money back. As soon as she put it in her shoe, I took the
               money and told the girl to get up out of my face, you know what I’m
               saying. That’s what I did.

        The defendant said he had never met L.T. before March 29, 1999, and that he never saw her
again after that day. He testified that he wrote L.T. from prison, apologizing for taking the seven
dollars from her and offering for his mother to pay her.

                                           ANALYSIS

        As his sole issue on appeal, the defendant argues that the evidence presented at trial was
insufficient to support his conviction for rape. He says that his conviction was based only on the
uncorroborated testimony of L.T., which was unreliable and contradictory: L.T.’s testimony that her
teacher, Gloria Taylor, told her grandmother about the incident conflicted with Taylor’s testimony
that she had never spoken to L.T.’s grandmother about the incident; L.T. testified that the defendant
was the second man to rape her while her written statement to the police stated that the defendant
was the first of the two men to rape her; L.T. claimed that the living room window of the abandoned
apartment where the rape occurred was not boarded up, but photographs show that the window was
covered by a board; and L.T. stated that she was raped by two men in the apartment, yet, the vaginal
swab contained DNA material belonging only to the defendant and L.T., rebutting her claim that a
second man also raped her. Additionally, he argues that L.T. suffered no physical injuries and that
there was no evidence in the vacant apartment to substantiate her claim that the defendant had been
there or that a crime had been committed there.

        Where sufficiency of the convicting evidence is challenged, the relevant question of the
reviewing court 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, 2789, 61 L. Ed. 2d 560,
573 (1979); see also State v. Pike, 978 S.W.2d 904, 914 (Tenn. 1998); Tenn. R. App. P. 13(e)
(“Findings 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

                                                -8-
doubt.”). 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. See State v. Pappas, 754 S.W.2d
620, 623 (Tenn. Crim. App. 1987).

        Jury verdicts in criminal cases are given considerable weight by the reviewing court. A
guilty verdict that is approved by the trial judge accredits the testimony of the State’s witnesses and
resolves all conflicts in favor of the theory of the State. State v. Bigbee, 885 S.W.2d 797, 803 (Tenn.
1994). Our supreme court stated the rationale for this rule:

                   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, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d 523, 527
(Tenn. 1963)). A guilty verdict removes the defendant’s initial presumption of innocence and
replaces it with a presumption of guilt, so that on appeal, a convicted defendant has the burden of
demonstrating that the evidence is insufficient. See State v. Grace, 493 S.W.2d 474, 476 (Tenn.
1973).

       Tennessee Code Annotated section 39-13-503(a) defines rape as the following:

               Rape is unlawful sexual penetration of a victim by the defendant or
               of the defendant by a victim accompanied by any of the following
               circumstances:

                    (1) Force or coercion is used to accomplish the act;

                    (2) The sexual penetration is accomplished without the consent
                        of the victim and the defendant knows or has reason to
                        know at the time of the penetration that the victim did not
                        consent;

                    (3) The defendant knows or has reason to know that the victim
                        is mentally defective, mentally incapacitated or physically
                        helpless; or

                    (4) The sexual penetration is accomplished by fraud.



                                                 -9-
Tenn. Code Ann. § 39-13-503(a) (1997). The defendant was indicted under Tennessee Code
Annotated section 39-13-503(a)(1).

        Taken in the light most favorable to the State, the proof showed that the defendant and an
unidentified man forced L.T. into an abandoned apartment and raped her. As soon as L.T. arrived
home, she called her teacher and told her what had happened. L.T. also notified the police that night,
showed them the apartment were the rape occurred, and went to the MSARC, where evidence was
collected for scientific analysis. At trial, L.T. identified the defendant as one of the men who raped
her. Gloria Taylor, L.T.’s teacher, testified that she could tell that something bad had happened to
L.T. when she called her on the evening of March 29, 1999, because L.T.’s attitude had completely
changed. Patricia Speck of the MSARC testified that L.T. was examined on March 29, 1999, and
that nonmotile sperm was collected from her for further analysis. Officer Jimmy Daniels of the
Memphis Police Department testified that L.T. gave him a written statement and identified the
defendant from the mug books. Margaret Aiken testified that she took a blood sample from the
defendant with his consent. Donna Nelson, a TBI forensic scientist, performed DNA testing on the
vaginal swabs from L.T. and the blood sample from the defendant, which showed that the defendant
was the contributor of the sperm.

        The defendant argues on appeal that, as a matter of law, this court should “discredit” the
testimony of L.T. because it “was unreliable and contradicted other proof introduced by the State,”
citing examples to support this contention. However, providing details from the testimony of
various witnesses to prove the alleged unreliability of the victim’s testimony demonstrates that all
of these seeming contradictions were put before the jury and available for its consideration in
assessing the credibility of the witnesses. The defense fully ventilated the alleged contradictions in
the victim’s version of the facts. However, the jury resolved these conflicts against the defendant,
as was their right. State v. Howard, 926 S.W.2d 579, 585 (Tenn. Crim. App. 1996) (“[D]efense
counsel was permitted to develop the inconsistencies in the victim’s testimony and challenge her
credibility [and] [t]he jury’s decision to accredit the victim’s testimony was within their
prerogative.”). This court explained, in State v. Radley, 29 S.W.3d 532 (Tenn. Crim. App. 1999),
the showing which must be made as to the testimony of a witness before the verdict of a jury may
be altered:

                    The credible testimony of one identification witness is sufficient
               to support a conviction if the witness viewed the accused under such
               circumstances as would permit a positive identification to be made.
               See State v. Strickland, 885 S.W.2d 85, 87-88 (Tenn. Crim. App.
               1993). Inconsistency, inaccuracy and omissions in the description of
               a defendant by a witness who is otherwise able to positively identify
               the defendant are questions for the jury to consider in determining the
               weight to be given the testimony. See generally State v. Matthews,
               805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Further, although
               inconsistencies or inaccuracies may make the witness a less credible
               witness, the jury’s verdict will not be disturbed unless the

                                                -10-
               inaccuracies or inconsistencies are so improbable or unsatisfactory as
               to create a reasonable doubt of the appellant’s guilt.

Id. at 537.

        Here, the victim positively identified the defendant as one of the men who had raped her.
The several seeming contradictions in the State’s proof are insufficient to create doubt as to the
defendant’s guilt of the offense. Accordingly, we respectfully disagree that the evidence was not
sufficient to support the verdict of the jury.

                                          CONCLUSION

        Based upon the foregoing authorities and reasoning, we affirm the judgment of the trial court.



                                                       ___________________________________
                                                       ALAN E. GLENN, JUDGE




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