        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs February 14, 2012

            STATE OF TENNESSEE v. DAVID EUGENE BREEZEE

                    Appeal from the Circuit Court for Benton County
                      No. 10-CR-45     C. Creed McGinley, Judge


              No. W2011-01231-CCA-R3-CD - Filed December 28, 2012


The Defendant, David Eugene Breezee, was found guilty by a Benton County Circuit Court
jury of rape, a Class B felony, and incest, a Class C felony. See T.C.A. §§ 39-13-503(b); 39-
15-302(b). At the sentencing hearing, the incest conviction was merged with the rape
conviction, and the Defendant was sentenced to ten years’ confinement. On appeal, the
Defendant contends that the evidence is insufficient to sustain his convictions and that he
erroneously received more than the minimum sentence of eight years because the trial court
applied the multiple victims enhancement factor. We affirm the Defendant’s conviction and
sentence for rape, but we reverse the trial court’s merger of the incest conviction into the rape
conviction, reinstate the incest conviction, and remand for sentencing as to that conviction.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in
                    Part, Reversed in Part, and Case Remanded

J OSEPH M. T IPTON , P.J., delivered the opinion of the court, in which JOHN E VERETT
W ILLIAMS and C AMILLE R. M CM ULLEN, JJ., joined.

Guy T. Wilkinson, District Public Defender, for the appellant, David Eugene Breezee.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant
Attorney General; Hansel J. McCadams, District Attorney General; and James E. Williams,
III and Scott Rich, Assistant District Attorneys General, for the appellee, State of Tennessee.

                                          OPINION

                                            FACTS

       This case involves the Defendant’s stepdaughter. At the trial, Benton County
Sheriff’s Department Sergeant Ricky Pafford testified that he received a call from Cindy
Curtis with the Department of Children’s Services (DCS) about a seventeen-year-old female
who reported sexual abuse to a teacher. He said he spoke to the victim and her mother at the
DCS building. He said that he advised the victim’s mother of her rights, that she signed a
consent form, and that he told her the allegations. He said that he also spoke with the victim
but that the victim was uncomfortable with his presence. He stated that he left the room and
observed Ms. Curtis interview the victim through a two-way window and that the victim
made a written statement to Ms. Curtis.

        Sergeant Pafford testified that he interviewed the Defendant twice and that Ms. Curtis
was present for the first interview. He said that on the first day, he explained the Defendant’s
rights to him and that the Defendant signed a consent form. He said that the Defendant was
not under arrest and that the interview lasted three to four hours. He said they discussed
daily routines of the Defendant’s family, the Defendant’s work status, and his life with
teenage children. He said that he told the Defendant about the allegations and that the
Defendant was visibly upset. He said that he asked the Defendant to come back the next day
and that the Defendant agreed and returned early the next morning. He stated that Lieutenant
Bryant Allen was present at the second interview.

        Sergeant Pafford testified that the second interview was “to the point” and that the
Defendant denied the victim’s allegations. Sergeant Pafford explained that he took a
question-and-answer statement from the Defendant and that it was initialed by the Defendant.
He said the statement consisted of his questions and the Defendant’s answers word-for-word.
After the interview, the Defendant initialed each question, verifying that the statement was
accurate. At the trial, Sergeant Pafford read portions of the statement. He read question
three, “When you touched [the victim] on the twenty-fourth what was going through your
mind. That was the question. The answer [the Defendant gave] me was nothing. She just
stood there texting [her boyfriend]. And [the Defendant’s] initials are beside it.” He also
read question ten, “Did you not think when you were touching [the victim] that it would not
hurt? His reply: I don’t know what I was thinking. He did initial that.” Sergeant Pafford
said he understood this to be a confession. On cross-examination, Sergeant Pafford stated
that the first interview was not recorded because he did not have access to the recording
equipment and that the second interview was not recorded because the recording device he
used did not record. He said that the second interview was three or four hours long.

       Benton County Sheriff’s Department Lieutenant Bryant Allen testified that he assisted
Sergeant Pafford with a non-custodial interview of the Defendant. He said that he was
present at the end of the second interview and that he asked the Defendant what happened.
He said that he asked the Defendant why he touched the victim and that the Defendant said
he did not know why, dropped his head, and began to cry. Lieutenant Allen understood the
Defendant’s response to mean that the Defendant had touched the victim. He said that he
asked the Defendant to initial the statements Sergeant Pafford wrote and that he thought the
Defendant initialed the statement voluntarily and understood everything.

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        On cross-examination, Lieutenant Allen testified that he did not know why portions
of his questions were not included in the statement. He said that interviews were not always
recorded and that because this was a non-custodial interview, they did not record it. He said
that he asked most of the questions listed in the statement but that he did not see the question
asking the Defendant why he touched the victim.

       Cindy Curtis, an investigator with Benton County Child Protective Services, testified
that she received information about this case from DCS and that she contacted members of
the child protective investigative team (CPIT). She said that she and Sergeant Pafford
attempted to contact the victim at school the day after she received the report but that the
victim was not there. She said they found the victim at her home. She stated that the victim
was scared to talk to her because the victim’s mother instructed her not to talk and that she
asked the mother to bring the children to the DCS office to interview them privately.

       Ms. Curtis testified that she and Sergeant Pafford spoke with the victim at the DCS
office and that the victim told them the Defendant penetrated her digitally. She said the
victim gave a written statement. She said she corroborated the victim’s statements by
interviewing siblings, parents, and others close to the victim. Ms. Curtis stated that she was
present during the Defendant’s first interview and the last part of the second interview. She
said that while the officers were outside with the Defendant at the end of the second
interview, she heard Sergeant Pafford ask the Defendant why he did it and heard the
Defendant respond that he did not know. She said that she asked the Defendant if he was a
victim of sexual abuse as a child and that the Defendant nodded affirmatively.

       On cross-examination, Ms. Curtis testified that she followed DCS and CPIT protocol
in this case. She said she was present during the last part of the Defendant’s second
interview because the officers contacted her and told her that he confessed. She said she
erred on the side of the safety of the child when investigating child abuse cases. She said the
CPIT team, not the Defendant, decided whether a medical evaluation would harm the child
more or whether useful evidence would come from the evaluation. She said that once the
child was “of age,” digital penetration evidence would not be found in a medical evaluation.

        Shane Penn testified that he and the Defendant were jail cellmates for two to three
months. He said that the Defendant admitted touching the victim and that the Defendant told
him the victim wanted the Defendant to touch her. Mr. Penn admitted that he was charged
with assaulting the Defendant. He said that when he was released from jail, he went to see
Ms. Curtis about obtaining custody of his son and that he talked to her about the Defendant’s
statements. He stated that she sent him to see Sergeant Pafford and that he made a written
statement in Sergeant Pafford’s office. On cross-examination, Mr. Penn testified that he was
subpoenaed to testify at the trial. He said he went to DCS to obtain custody of his child, not
to tell Ms. Curtis about the Defendant’s statements. He stated that Ms. Curtis asked him

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about his new assault charges and that he explained the altercation with the Defendant.

        Sherry Hensley, a teaching assistant at the victim’s school, testified that she had
known the victim for six or seven years and that the victim was a “good kid.” She said that
she saw the victim in the hallway crying and that she took her into an empty classroom to ask
her what was wrong. She said that after the victim told her and another teacher what
happened, she stayed with the victim while the other teacher called the authorities. On cross-
examination, she said she did not remember if the victim’s sister’s boyfriend was around the
victim.

        The victim’s sister testified that the victim was in the victim’s bedroom talking to her
boyfriend on the phone when their stepfather entered the bedroom and close the door. She
said that after the door had been closed for approximately fifteen minutes, she opened the
door and saw the Defendant with his hand down the front of the victim’s pants. She said that
his left arm was on the wall above the victim’s head pressing against the wall preventing the
victim from moving and that his right arm was down the front of the victim’s pants. She
stated that the victim was texting the victim’s boyfriend. She said that she “got a very good
look” and that her boyfriend also saw the incident. She said that when the Defendant made
eye contact with her, he walked out of the room and washed his hands in the kitchen.

       On cross-examination, the victim’s sister testified that she had dated her boyfriend for
about four years at the time of the allegations and that he dated her sister before her. She said
the Defendant did not like that her boyfriend stayed overnight frequently. She said that at
the time of the incident, the Defendant found a place to rent and that they were moving. She
said that she, her boyfriend, and the victim went to the girls’ bedroom, closed the door, and
talked about what she saw and that when they left the bedroom, the Defendant took the
victim to his bedroom.

        The victim’s sister’s boyfriend testified that he and the victim’s sister were sitting in
the living room and saw the Defendant walk into the victim’s bedroom and closed the door.
He said that about fifteen minutes later, the victim’s sister opened the bedroom door and that
he could see into the victim’s bedroom. He said he saw the Defendant pinning the victim to
the wall with his hand down her pants. He said the Defendant walked out, went into the
kitchen, and washed his hands. He said that the victim came into the kitchen and that the
Defendant pulled her into his bedroom. He said they were in the Defendant’s bedroom for
about ten minutes before the two walked out together. He said that he and the victim’s sister
spoke to the victim to confirm what they saw and decided to tell someone at school the next
day.

      On cross-examination, the boyfriend testified that the victim and her sister told him
the Defendant did not like his spending the night at their house regularly. He said that he

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dated the sisters at the same time and that they knew he was dating both of them. He said
that he and the victim fought a lot and that they pushed each other and “stuff like that.” He
said that the Defendant never said anything to him about staying overnight and that he did
not know the Defendant planned to move the family. He said that he and the victim’s sister
told his friend at school what happened and that his friend told the principal. He said that at
the time of the trial, the victim’s sister had moved and that they were no longer dating.

        The victim testified that the Defendant was her stepfather and that on February 24,
2010, she was in her bedroom crying and texting her boyfriend because she learned the
family was moving. She said that the Defendant came into her bedroom, pinned her against
the wall, and put his hand down her pants and that he “play[ed]” with her vagina, “sticking
his fingers inside [her].” She said that when her sister entered the bedroom, he immediately
stopped, went to the kitchen, and washed his hands. She said that she spoke with her sister
and her sister’s boyfriend immediately after the incident and that they decided to tell the
victim’s mother what happened. She said that she went to the kitchen after they talked, that
the Defendant took her cell phone, and that she followed him into his bedroom to get her
phone. She stated that he asked if he could perform oral sex on her but that she told him no.
He grabbed her, but she took her phone and left the bedroom.

       The victim testified that her sister and her sister’s boyfriend decided to tell someone
at school and that she agreed. She said that they told the principal and that she met with Ms.
Hensley. She stated that she remembered meeting with the Department of Human Services
and giving a statement but that she did not remember what she said. She said her sister’s
boyfriend was not her boyfriend at the time but had been previously. She said her sister’s
boyfriend hit her during and after their relationship until her current boyfriend persuaded him
to stop.

        On cross-examination, the victim testified that she did not remember if her neighbor,
Patrick Horn, was at the house on the day of the incident. She said she knew of and
approved of her sister’s boyfriend’s dating her and her sister at the same time. She said that
he lied to her during their relationship about whether his relationship with the victim’s sister
was ongoing and that she hit him. She said they had a violent relationship. She thought her
sister told her sister’s boyfriend that they were moving. She stated that her sister and her
sister’s boyfriend told another student and the principal what happened but that she did not
know they were going to tell the principal. She said she told Ms. Hensley what happened
after her sister and her sister’s boyfriend told the principal. She said that she was texting her
boyfriend with both hands while the incident occurred and that she was telling her boyfriend
that she wanted it to stop. She said she did not scream because she did not want the
Defendant to hit her.

       Patrick Horn testified for the defense that he was at the Defendant’s home the evening

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of the incident and that the victim was “crying and carrying on.” He said her “fits became
ruckus enough that [the Defendant] needed to go handle it and he did.” He said that the
Defendant went into the bedroom with the victim and spoke too quietly for him to hear what
was said. He said the Defendant was in the bedroom with the victim for only a few minutes.

      Johnny Sterling, an inmate who was in jail with the Defendant, testified for the
defense that he never heard the Defendant admit doing anything to the victim. He stated that
Mr. Penn was not truthful in his testimony regarding the Defendant and that the Defendant
would not have talked about his case because a charge like that could “[g]et you killed” in
jail.

        Upon this evidence, the jury found the Defendant guilty of rape and incest, and the
trial court merged the two convictions and sentenced him to ten years’ confinement. This
appeal followed.

                                             I

       The Defendant contends that the evidence is insufficient to support his convictions.
He argues that his stepdaughters fabricated the allegations because they “were upset and did
not like it because they were moving away from their boyfriends” and that his confession
was not credible because without a recording, there was “no way to accurately know the
context of the questions and answers.” The State counters that the evidence is sufficient to
support both convictions. We agree with the State.

       Our standard of review when the sufficiency of the evidence is questioned on appeal
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 (1979). We do not reweigh the
evidence but presume that the trier of fact has resolved all conflicts in the testimony and
drawn all reasonable inferences from the evidence in favor of the State. See State v.
Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.
1978). Questions about witness credibility are resolved by the jury. See State v. Bland, 958
S .W.2d 651, 659 (Tenn. 1997).

       “A crime may be established by direct evidence, circumstantial evidence, or a
combination of the two.” State v. Sutton, 166 S.W.3d 686, 691 (Tenn. 2005) (quoting State
v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998)). Circumstantial evidence alone may be
sufficient to support a conviction. State v. Richmond, 7 S.W.3d 90, 91 (Tenn. Crim. App.
1999); State v. Buttrey, 756 S.W.2d 718, 721 (Tenn. Crim. App. 1988). The standard of
proof is the same, whether the evidence is direct or circumstantial. State v. Dorantes, 331
S.W.3d 370, 379 (Tenn. 2011). Likewise, appellate review of the convicting evidence “‘is

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the same whether the conviction is based upon direct or circumstantial evidence.’” Id.
(quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).

        Relevant to this appeal, rape is the “unlawful sexual penetration of a victim by the
defendant . . . accompanied by . . . [f]orce or coercion . . . [or] 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.” T.C.A. § 39-13-503(a)(1), (2) (2010). A person commits incest if
he “engages in sexual penetration . . . with a person, knowing the person to be . . . [his]
stepchild.” T.C.A. § 39-15-302(a)(1) (2010). Sexual penetration is “any . . . intrusion,
however slight, of any part of a person’s body or of any object into the genital or anal
openings of the victim’s, the defendant’s, or any other person’s body, but emission of semen
is not required[.]” T.C.A. § 39-13-501(7) (2010).

        In the light most favorable to the State, the evidence shows that the Defendant entered
the victim’s bedroom, pinned her against the wall, and put his fingers inside her vagina. The
victim stated that she could not get away from him and that she told him to stop. She also
identified the Defendant as her stepfather. The jury rejected the Defendant’s claim that his
statement was suspect because it was not recorded. The jury’s guilty verdict, approved by
the trial court, credits the testimony of the victim and other State witnesses and accepts the
Defendant’s admissions. We conclude that a rational jury could have found beyond a
reasonable doubt that the Defendant raped the victim and that the evidence is sufficient to
sustain his convictions. The Defendant is not entitled to relief.

                                              II

        The Defendant contends that the trial court erred in sentencing him to ten years’
confinement, two years above the statutory minimum, because the court erroneously applied
an enhancement factor based on his offense involving more than one victim. See T.C.A. §
40-35-114(3) (2010). He states that the four-count indictment was severed into two cases,
one for the offenses against the victim in this appeal and one for the offenses against the
victim’s sister. He notes that at the time of the sentencing hearing, he had not been convicted
of the charges related to the victim’s sister. He argues that he should have received an eight-
year sentence because the trial court misapplied the only enhancement factor it found at the
sentencing hearing and because he had no prior criminal record. Although the State agrees
the court erred in applying the multiple victim enhancement factor, it argues that the ten-year
sentence is still a “legal sentence within the range of punishment.”

      Previously, this court’s review of the length of a sentence was de novo with a
presumption of correctness. T.C.A. §§ 40-35-401(d), -402(d) (2010). Recently, though, the
Tennessee Supreme Court adopted a new standard of review for sentencing in State v. Susan
Renee Bise, — S.W.3d —, —, No. E2011-00005-SC-R11-CD, slip op. at 29 (Tenn. Sept. 26,

                                              -7-
2012). Currently, length of sentence “within the appropriate statutory range [is] to be
reviewed under an abuse of discretion standard with a ‘presumption of reasonableness.’” Id.
at slip op. 30.

       In determining the proper sentence, the trial court must consider: (1) any evidence
received at the trial and sentencing hearing, (2) the presentence report, (3) the principles of
sentencing and arguments as to sentencing alternatives, (4) the nature and characteristics of
the criminal conduct, (5) any mitigating or statutory enhancement factors, (6) statistical
information provided by the administrative office of the courts as to sentencing practices for
similar offenses in Tennessee, (7) any statement that the defendant made on his own behalf,
and (8) the potential for rehabilitation or treatment. T.C.A. §§ 40-35-102, -103, -210; see
State v. Ashby, 823 S.W.2d 166, 168; State v. Moss, 727 S.W.2d 229, 236 (Tenn. 1986).

       Challenges to a trial court’s application of enhancement and mitigating factors are
reviewed under an abuse of discretion standard. State v. Susan Renee Bise, — S.W.3d —,
—, No. E2011-00005-SC-R11-CD, slip op. at 29 (Tenn. Sept. 26, 2012). We must apply “a
presumption of reasonableness to within-range sentencing decisions that reflect a proper
application of the purposes and principles of our Sentencing Act.” Id. “A trial court’s
misapplication of an enhancement or mitigating factor does not invalidate the sentence
imposed unless the trial court wholly departed from the 1989 Act, as amended in 2005.” Id.
at 28. “So long as there are other reasons consistent with the purposes and principles of
sentencing, as provided by statute, a sentence imposed by the trial court within the
appropriate range should be upheld.” Id.

       The presentence report shows that the Defendant had not been convicted of counts one
and two of the indictment at the time of the sentencing hearing in this case. Both parties
agree that the trial court should not have applied the multiple victim enhancement factor. We
conclude the enhancement factor was erroneously applied.

       We note, though, the ten-year sentence was within the statutory range for rape. At the
sentencing hearing, the trial court reviewed the presentence report and permitted the State
to read a letter written by the victim. The court found that the Defendant had no prior
criminal convictions, making him a Range I, standard offender, subject to a range of eight
to twelve years for the rape conviction. The court reviewed and found inapplicable
enhancement factors based on the Defendant’s prior criminal convictions, his leadership in
the commission of the offense, the offense involving a particularly vulnerable victim, and
exceptional cruelty to the victim. The court only applied the enhancement factor based on
the offense having more than one victim, which we have determined to be inapplicable. The
court found the minimum and maximum sentences were not appropriate and sentenced the
Defendant to ten years’ confinement.



                                              -8-
        In considering alternative sentencing, the court noted that “the victim’s letter speaks
volumes about someone basically in a position of trust. That might be an enhancing factor,
but I think it was a part of the elements of the offense.” See T.C.A. § 40-35-114(14) (2010).
The court did not analyze this enhancement factor on the record before announcing the ten-
year sentence and erred in finding that the Defendant’s being in a position of trust was an
element of the offense. The sentence at issue is for the rape conviction, and the elements of
rape do not include such a relationship. See T.C.A. §§ 39-13-503(a), 40-35-114(14) (2010).
The court found that the victim’s letter established that the Defendant was “someone
basically in a position of trust.” Our supreme court held that the “position of parent, step-
parent, babysitter, teacher, coach are but a few obvious examples” of someone in a position
of trust. State v. Gutierrez, 5 S.W.3d 641, 645 (Tenn. 1999) (quoting State v. Kissinger, 922
S.W.2d 482, 488 (Tenn. 1996)). The Defendant was the victim’s stepfather, and they lived
in the same house. The Defendant had been the victim’s stepfather for ten years. She
referred to herself as the Defendant’s daughter in her letter to the court and described the
emotional issues the offense caused her. Because the record establishes that the Defendant
was in a position of trust at the time of the offense, we conclude that the ten-year sentence
is consistent with the purposes and principles of sentencing and that the sentence is within
range and supported by the record. The Defendant is not entitled to relief on this issue.

                                              III

        Although not raised as a separate issue, the State contends that the case should be
remanded for the reinstatement of and sentencing for the incest conviction. The State argues
that the trial court erroneously merged the incest and rape convictions and that the case
should be remanded to reinstate the incest conviction and for resentencing on that conviction.
We note that the proper way for an appellee to request relief on appeal is to present an issue
for relief. T.R.A.P. 27(b); see, e.g., State v. Hayes, 894 S.W.2d 298, 300-01 (Tenn. Crim.
App. 1994). Such was not done in this case. In any event, we view the merger to be plain
error. At the sentencing hearing, the trial court found that although incest was not a lesser-
included offense, the incest conviction should merge into the rape conviction because both
convictions stemmed from a single act. Both the rape and incest charges required penetration
for the jury to convict, and, because the victim’s testimony only included a description of one
act of sexual penetration, the court determined that both convictions concerned a single act.

        Although both incest and rape require penetration, rape requires the element of force,
coercion, or sexual penetration that is accomplished without the consent of the victim, which
is not required for incest, and incest requires the element of familial relationship, which is
not required for rape. The two offenses are not the same for double jeopardy principles
because each “requires proof of an element that the other does not.” State v. Samuel L.
Giddens, Jr., No. M2005-00691-CCA-R3-CD, slip op. at 14 (Tenn. Crim. App. Mar. 13,
2006) (citing State v. Jason D. Pillow, No. M2002-01864-CCA-R3-CD, slip op. at 14 (Tenn.

                                              -9-
Crim. App. Aug. 13, 2003)); see State v. Watkins, 362 S.W.3d 532 (Tenn. 2012) (holding
that the same elements test in Blockburger v. United States, 284 U.S. 299, 304 (1932), is the
applicable test in Tennessee for determining whether multiple convictions under different
statutes constitute the same offense for double jeopardy principles). The trial court should
not have merged the incest conviction into the rape conviction because each is legally
distinct. State v. Brittman, 639 S.W.2d 652, 654 (Tenn. 1982); William Hackworth v. State,
No. M2003-02148-CCA-R3-PC, slip op. 3 (Tenn. Crim. App. July 28, 2004) (holding that
incest is not a lesser included offense of rape and both convictions are appropriate). Upon
remand, the conviction for incest shall be reinstated, and the trial court shall determine the
appropriate sentence.

        In consideration of the foregoing and the record as a whole, we affirm the Defendant’s
conviction and sentence for rape, but we reverse the trial court’s merger of the incest
conviction into the rape conviction, reinstate the incest conviction, and remand for sentencing
as to that conviction.

                                           ______________________________________
                                           JOSEPH M. TIPTON, PRESIDING JUDGE




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