            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                     AT KNOXVILLE          FILED
                             JANUARY 1999 SESSION
                                                             March 10, 1999

                                                           Cecil Crowson, Jr.
                                                           Appellate C ourt Clerk

STATE OF TENNESSEE,                      )    C.C.A. NO. 03C01-9803-CR-00123
                                         )
      Appellee                           )    CAMPBELL COUNTY
                                         )
v.                                       )    HON. LEE ASBURY, JUDGE
                                         )
REMA LYNN MORGAN,                        )    (Attempted aggravated rape)
                                         )
      Defendant/Appellant                )




FOR THE APPELLANT:                            FOR THE APPELLEE:

Martha Yoakum                                 John Knox Walkup
District Public Defender                      Attorney General & Reporter
Eighth Judicial District
                                              Ellen H. Pollack
Charles Herman                                Assistant Attorney General
Assistant District Public Defender            Criminal Justice Division
P.O. Box 337                                  425 Fifth Avenue North
Jacksboro, TN 37757                           Nashville, TN 37243




OPINION FILED


AFFIRMED
JOHN K. BYERS
SENIOR JUDGE
                                      OPINION

       The defendant was convicted of attempted aggravated rape and sentenced

to serve 25 years as a range 3 persistent offender. 1

       The defendant says the evidence is insufficient to support the conviction and

that the trial judge erred in finding him to be a persistent rather than a multiple

offender.

       The judgment of the trial court is affirmed.

       On January 17, 1997, a young woman was traveling on I-75 with her

husband. When they reached Caryville in Campbell County, they stopped at a

Shoney’s restaurant so the woman could go to the bathroom.

       The woman entered the women’s bathroom in the restaurant at

approximately 10:00 p.m. Just moments after this, the manager, employees, and

customers heard screams coming from the bathroom. The manager and some of

the employees ran to investigate.

       The almost consistent statements of these witnesses was that when they

entered the bathroom they saw the defendant standing over the woman. Some of

the witnesses observed the defendant strike the woman and others saw him push

her down onto a commode when she tried to escape. Some of the employees

testified the man’s trousers and underwear were down to his knees. Others saw the

defendant buckling his belt when they entered.

       The woman testified that as she started to leave the stall she had used the

defendant was in the stall door disrobed from the waist down to his knees and that

he shoved her back into the stall. She testified that the defendant struck her several

times and that she fought to escape. The attack continued until she was rescued by

two men who entered the restaurant.



       1
         The defendant was also convicted of aggravated kidnapping, but the trial
judge dismissed that conviction because it was a part of the attempted aggravated
rape.

                                           -2-
       There was no evidence introduced to refute the State’s evidence.

                            SUFFICIENCY OF THE EVIDENCE

       The defendant’s main argument on the matter of the sufficiency of the

evidence is that before a person can be convicted of an attempt to commit a crime

he must be shown to have acted in such a way as to show his conduct constituted a

substantial step towards the commission of the offense as defined in Tenn. Code

Ann. § 39-12-101. He argues that under subsection (a)(3) conduct does not

constitute a substantial step unless the person’s entire course of action is

corroborative of the intent to commit the crime.

       The evidence as set out above shows the conduct of the defendant.

Furthermore, the woman received cuts and bruises from the blows and physical

violence inflicted on her by the defendant. This constitutes a substantial step

towards commission of the crime.

       The evidence to convict must be sufficient for a rational trier of fact to find the

defendant guilty of the offense upon which a conviction is had. Jackson v. Virginia,

443 U.S. 307 (1979). In our view of the evidence, it is clear the defendant assaulted

this woman with the clear intent to rape her. He was stopped by the intervention of

other people. It would, in our opinion, require an unreasonable trier of fact to find

otherwise.

       The evidence is sufficient to support the verdict.

                                     SENTENCING

       The sentencing range for a range 3 persistent offender is 20 years to 30

years. The trial judge found that the defendant’s record placed him in the persistent

offender classification and that certain enhancing factors justified an elevation of the

sentence from 20 years to 25 years. Only the classification, not the enhancement,

is at issue in this case.

       The defendant contends he should be classified as a multiple offender rather

than a persistent offender. He contends he has no more than four prior convictions

within the class or range of the convicting offense and he is thus to be sentenced

under Tenn. Code Ann. § 40-35-106 as a multiple offender.



                                           -3-
       The record shows the defendant had prior convictions in the state of Georgia

for rape, a class B felony; aggravated assault, a class C felony; and armed robbery,

a class B felony. The record also shows the defendant had a conviction for robbery

in Kentucky, which is a class C felony. The defendant was convicted also of a class

E felony of theft in Kentucky.

       When the assistant district attorney was making argument to the court on the

two Kentucky convictions, he spoke of a conviction in Kentucky for second degree

assault, which is a class E felony in Kentucky. The State introduced the statute of

second degree assault showing that offense to be described essentially the same as

the second degree assault statute in Tennessee, which under our law is a class C

felony. For sentencing purposes, this is to be considered as a class C felony in our

courts.

       The defendant in this case was convicted of a class B felony. He has prior

convictions of two class B felonies and three class C felonies. He falls therefore

under Tenn. Code Ann. § 40-35-107(1) because he has five or more felonies within

the definition in subsection (a)(1) of a persistent offender and the trial judge properly

sentenced him.

          The judgment of the trial court is affirmed. It appearing that the defendant is

indigent, costs of the appeal are taxed to the State.




                                             John K. Byers, Senior Judge


CONCUR:




James Curwood W itt, Jr., Judge




Norma McGee Ogle, Judge




                                             -4-
