            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE
                                 Assigned on Briefs May 15, 2002

             STATE OF TENNESSEE v. FLOYD EARL RAYNER, III

                      Appeal from the Criminal Court for Davidson County
                            No. 2000-A-589    Seth Norman, Judge



                       No. M2001-00971-CCA-R3-CD - Filed June 19, 2002


The defendant, Floyd Earl Rayner, III appeals from his five convictions of rape of a child and five
convictions of aggravated sexual battery, claiming that the trial court (1) failed to fulfill its duty as
the “thirteenth juror” and (2) erred in its sentencing determinations by not applying mitigating
factors in establishing the length of his sentences and in ordering partial consecutive service of the
sentences. Because we hold that the trial court discharged its “thirteenth juror” responsibility and
that the sentencing issues have been waived, we affirm.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which JOSEPH M. TIPTON and
JOE G. RILEY, JJ., joined.

Edward S. Ryan, Nashville, Tennessee, for the Appellant, Floyd Earl Rayner, III.

Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
Victor S. Johnson, III, District Attorney General; and Bernard McEvoy and Phil Wheby, Assistant
District Attorneys General, for the Appellee, State of Tennessee.

                                                    OPINION

                 The defendant was indicted in the Davidson County Criminal Court on five counts
of rape of a child, see Tenn. Code Ann. § 39-13-522 (1997), and five counts of aggravated sexual
battery of a child less than thirteen years of age, see id. § 39-13-504(a)(4) (1997). In each count, the
victim is M.R.,1 the defendant’s daughter, who was born on June 26, 1987. Each count alleged an
offense that was committed on a date between January 1, 1996 and December 9, 1999. The jury
convicted the defendant on each count, and the trial court imposed a 21-year sentence in each of the
rape-of-a-child convictions and a nine-year sentence in each of the aggravated-sexual-battery


        1
                We dec line to id entify the m inor victim by n am e.
convictions. Two of the rape-of-a-child sentences and one aggravated-sexual-battery sentence were
imposed to run consecutively to each other, and all other sentences run concurrently, yielding an
effective sentence of 51 years.

                In the light most favorable to the state, the evidence introduced at trial showed that
the victim is the sole child of the defendant and his wife. The victim is mildly mentally retarded.
At the time the offenses commenced, the victim was in the fifth grade, and she was enrolled in
resource and life skills classes at school. Academically, she performed at a kindergarten level. She
did not know the alphabet, numbers, days of the week, or months of the year. During part of her
fifth grade year, she and her parents lived in a car. Later in that school year, they moved into a house
on Louis Street in Nashville. During the fifth grade, the victim came to school in filthy clothes and
“smelling really bad.” Her teacher testified that the victim’s body was unclean and beset with hives
or scabies sores, and her hair was infested with lice.

               By the time M.R. was in the seventh grade, she and her parents had moved to a room
at the Music City Motor Inn, an enterprise that catered to a “transient” clientele. She transferred to
a different school in Nashville. Although she improved her academic functioning to a first grade
level, she remained very limited scholastically and socially, and she continued to come to school
unclean and malodorous.

                In December 1999, the victim told a family friend that she had been sexually abused.
An investigation followed. She was initially removed from her parents’ custody because of the filthy
living conditions in the motel room; however, the present charges were eventually lodged against
the defendant. At the time of trial, the victim’s eighth-grade teacher had officially assumed the role
of foster parent of the victim.

                 The victim testified that when her family lived at the location on Louis Street, the
defendant “was touching me like over the private parts, like the chest, the front part and behind
parts.” It happened “[m]ore than one time.” She recalled that she was in the fifth grade the first
time it happened. On this occasion, she was playing with her “Barbies and . . . toys” when the
defendant came into the room and asked her to disrobe and lie on the bed. She complied, lying on
her back. She testified that he touched her chest by putting his hand on her and then “his mouth on
the middle part,” which he “squeeze[d]” with his mouth. Then, he touched her “front private part,”
opening “the middle of it and then he would like lick it.” She felt his mouth on the “inside” of her
private part. The defendant “would open the vaseline and he would take . . . four fingers and dip it
out and put it all over his private part and put his front part in my behind,” although it is unclear from
the victim’s testimony whether this sexual activity occurred as a part of or on the same day as the
“first time it happened.” The victim testified that she felt pain when the defendant anally penetrated
her and told the defendant to stop.

              Without describing a date or related event, the victim then testified that the defendant
“would take his private part and like put my hands on it and then he would like open my mouth all


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the way open and then he would put his private part inside of my mouth.” She testified that his
“private part” emitted “clear white stuff.”

                 Describing another occasion without relating it to a specific event or date, she
testified that the defendant “would like put his hands on my chest and put his mouth on it and . . .
he would . . . open [my private part] and put his tongue on [it] and then he would put his private part
in my behind.” She testified that this happened more than one time but denied that he ever tried to
insert his penis into her vagina. She testified that these events occurred at the Louis Street address
when her mother was at work.

                The victim then discussed events that occurred when she was in the seventh grade and
her family was living at the Music City Motor Inn. She testified that the defendant gave her “bad
touch[es]” more than one time. She related that the first time he touched her chest with his hand and
mouth and “would like open my private parts, and then he would put his tongue on it.” Again, she
felt the defendant’s mouth “on the inside” of her private part. Then, he “would just put his private
part inside my behind.” Finally, the victim testified that he would put his private part into her
mouth and “like go up and down.”2

                A medical examination of the victim revealed no anomalies in her anal area, but the
medical expert opined that the muscular tissue surrounding the anus does not typically show signs
of penetration trauma. The vaginal examination was inconclusive as to penetrative activity but
revealed that the victim was afflicted with trichomonas, a sexually transmitted disease.

                   Once, the victim was sexually fondled at school by a male student.

               The defendant testified that he worked many long hours at minimum wages to support
his family and blamed his wife for not assuring the cleanliness of their home and the good hygiene
of the victim. He denied that he ever engaged in any sexual activity with the victim.

                                                        I

                In his first appellate issue, the defendant claims that the trial court erred in not
rejecting the jury’s verdict as contrary to the weight of the evidence. The defendant asserts in his
brief that “there is no direct evidence that [he] did anything to his daughter.” Instead, he claims that
he was “convicted by the jury simply because he was poor and his daughter lived in filth.”

               Pursuant to Tennessee Rule of Criminal Procedure 33(f), the “trial court may grant
a new trial following a verdict of guilty if it disagrees with the jury about the weight of the
evidence.” The adoption of Rule 33(f) essentially reinstated in Tennessee the “thirteenth juror rule.”


         2
                  W e are not given to kno w fro m th e existin g record how the variou s allegations o f sexu al assau lts
correspond to the charges and /or conv ictions.

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See State v. Nail, 963 S.W.2d 761, 765 (Tenn. Crim. App. 1997). “Under the thirteenth juror rule,
the trial judge has a duty to act as the thirteenth juror to insure that a jury verdict is based upon
satisfactory evidence, including that it be presented through sufficiently credible witnesses.” Id.
“The trial judge must be personally satisfied with the verdict.” State v. Dankworth, 919 S.W.2d 52,
56 (Tenn. Crim. App. 1995). The purpose of the rule is to safeguard against a jury’s miscarriage of
justice. State v. Moats, 906 S.W.2d 431, 434-35 (Tenn. 1995); State v. Price, 46 S.W.3d 785, 823
(Tenn. Crim. App. 2000), perm. app. denied (Tenn. 2001). “Immediately after the trial, the trial
court judge is in the same position as the jury to evaluate the credibility of witnesses and assess the
weight of the evidence, based upon the live trial proceedings.” State v. Brown, 53 S.W.3d 264, 274
(Tenn. Crim. App. 2000) (quoting Moats, 906 S.W.2d at 434-35), perm. app. denied (Tenn. 2001).

              The trial court’s thirteenth-jury duty is mandatory, State v. Carter, 896 S.W.2d 119,
122 (Tenn. 1995), and the court’s approval of the jury verdict is a “prerequisite to the entry of a valid
judgment,” Nail, 963 S.W.2d at 765.

               That said, the thirteenth-juror rule “does not require an explicit statement on the
record that the trial court performed its duty.” Brown, 53 S.W.3d at 274. When a trial judge
overrules a motion for new trial and says nothing to express dissatisfaction with the verdict, we
“assume that the judge has exercised the mandatory thirteenth juror function and is satisfied with the
jury verdict.” Dankworth, 919 S.W.2d at 57.

                The appellate court has “no independent authority to act as a thirteenth juror.” State
v. Burlison, 868 S.W.2d 713, 719 (Tenn. Crim. App. 1993). We are “effectively precluded from
reevaluating or reweighing the evidence” and are “practically foreclose[d from assessing] the
evidentiary basis for a trial court’s thirteenth juror ruling.” Id. Accordingly, when the trial court
makes its thirteenth-juror determination, we do not review it. Dankworth, 919 S.W.2d at1 59. “[T]he
appellate court’s duty is limited to a review of whether the [thirteenth juror] obligation was
discharged.” Id.

                In the present case, the trial judge not only overruled the motion for new trial, he said,
“I’m satisfied with the jury’s verdict in this matter. I will respectfully overrule [the] motion.” Thus,
based upon these statements, the trial court discharged its duties pursuant to Rule 33(f). The
defendant is entitled to no relief.

                                                II

                The defendant’s second and third issues are complaints about the trial court’s
sentencing. First, the defendant claims the trial court erred in rejecting his claims for sentence
mitigation. Prior to sentencing, the defendant proposed in writing that the court mitigate the
sentences based upon the claim that his conduct neither caused nor threatened serious bodily injury
and his lack of significant prior criminal history. See Tenn. Code Ann. § 40-35-113(1), (13) (1997).
The trial court declined to apply either factor. Second, he complains that the trial court erred in
ordering consecutive service of some of his sentences. The trial court imposed consecutive

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sentences based upon the defendant being convicted of offenses involving sexual abuse of a minor
and his commission of the present offenses while he was on probation. See id. § 40-35-115(a)(5),
(6) (1997).

               The sentencing law mandates that this court review sentencing determinations de
novo with the presumption that the lower court’s determinations are correct. Tenn. Code Ann. § 40-
35-401(d) (1997); see State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991) (presumption of correctness
conditioned upon “affirmative showing in the record that the trial court considered the sentencing
principles and all relevant facts and circumstances”). On appeal, the appellant bears the burden of
showing that the sentence is improper. Ashby, 823 S.W.2d at 169.

                 In noncapital felony sentencing when the sentence is not arranged by agreement, the
trial court “shall . . . direct the presentence service officer to make a presentence investigation and
report. . . .” Tenn. Code Ann. § 40-35-205(a) (Supp. 2001). “The presentence report shall be filed
with the clerk of the court . . . .” Id. § 40-35-208 (1997). To determine the appropriate sentence, the
trial court is required to consider several sources of information, including the presentence report.
Id. § 40-35-210(b)(2) (Supp. 2001). “A sentence must be based on evidence in the record of the trial,
the sentencing hearing, the presentence report, and[] the record of prior felony convictions filed by
the district attorney general with the court . . . .” Id. § 40-35-210(g) (emphasis added).

                At this juncture, we must conclude that the defendant has waived our review of his
sentencing claims. Despite the mandate of our sentencing law that a presentence report be filed with
and considered by the court and that this court review sentencing determinations de novo upon the
record that should include the presentence report, the record before us contains no such report. The
record reflects that a report was prepared and submitted to the trial court, but the defendant, as the
appellant, has failed to include this important component of the sentencing record in the record on
appeal. In this situation, we cannot discharge our function of de novo review of the trial court’s
sentencing determinations. See State v. Richard Douglas Lowery, No. 03C01-9604-CC-00146, slip
op. at 8 (Tenn. Crim. App., Knoxville, May 19, 1997).

                The appellant bears the burden of not only showing on appeal that the sentence is
improper, Ashby, 823 S.W.2d at 169, but also he is burdened with the responsibility of assuring that
the appellate record contains “a full, accurate and complete account of what transpired with respect
to those issues that are the bases of appeal,” see Tenn. R. App. P. 24(a), (b). In the absence of such
a record, we must presume that “the trial court’s rulings were supported by sufficient evidence.” Id.
State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991).

                This presumption is especially apt in a case such as the one before us. In the
sentencing hearing, the state relied primarily upon the presentence report that had been prepared and
submitted to the trial court. It called no live witnesses to testify. Yet, the defendant, as the appellant,
has failed to assure the inclusion of this report in the appellate record, despite that he raises issues
which a presentence report typically addresses. He complains that the trial court should have
mitigated his sentence because he did not cause or threaten serious bodily injury, which includes the

                                                   -5-
“substantial impairment of . . . a mental faculty” of the victim. See Tenn. Code Ann. § 39-11-
106(a)(34) (1997); see also id. § 40-35-207(a)(8) (1997) (presentence report shall include “[a]ny
statement relating to sentencing submitted by the victim of the offense or the investigative agency”);
id. § 40-38-205 (1997) (presentence report shall include “victim impact statement” as submitted by
the victim or the victim’s representative to reflect “the financial, emotional, and physical effects of
the crime on the victim”). In a similar vein, he complains that the trial court erred in imposing
consecutive sentences pursuant to Code section 40-35-115(b)(5), a rubric for authorizing consecutive
sentences in cases of “sexual abuse of a minor” in which the court is required to consider, inter alia,
“the extent of the residual, physical and mental damage to the victim.” Id. § 40-35-115(b)(5) (1997).
Again, the presentence report typically addresses such issues, and a victim impact statement would
have been particularly instructive in making the section -115(b)(5) determinations.

               In conclusion, we find no reversible error and affirm the trial court’s judgments.



                                               ___________________________________
                                               JAMES CURWOOD WITT, JR., JUDGE




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