                                                                                      01/16/2018
         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                          Assigned on Briefs March 7, 2017

                STATE OF TENNESSEE v. JAMES EARNEST SMITH

                   Appeal from the Circuit Court for Chester County
                      No. 15-CR-12       Donald H. Allen, Judge
                       ___________________________________

                           No. W2016-01131-CCA-R3-CD
                       ___________________________________

Defendant, James Earnest Smith, was indicted for one count of rape of a child and one
count of aggravated sexual battery. After a jury trial, Defendant was convicted of two
counts of aggravated sexual battery. The trial court merged the convictions and imposed
a sentence of twelve years’ confinement. On appeal, Defendant argues that the evidence
was insufficient to support his convictions and that the sentence was excessive. After a
thorough review of the record, we affirm the judgments of the trial court.

  Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

THOMAS T. WOODALL, P.J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR., and ROBERT L. HOLLOWAY, JR., JJ., joined.

Lloyd R. Tatum, Henderson, Tennessee, for the appellant, James Earnest Smith.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; Jody Pickens, District Attorney General; and Brian Gilliam, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                      OPINION

Facts

        Trial

       In November 2014, the victim was nine years old and lived in a home on Milam
Road in Finger, Tennessee, with her mother and Defendant, her stepfather. The victim’s
mother and Defendant had married in 2011, and the victim referred to Defendant as
“dad.” Also living in the home were the victim’s two younger brothers, her older
stepbrother, and her younger half-sister (“sister”). The home was located on the county
line between Chester County and McNairy County, and the victim attended the fourth
grade in a Chester County school.

       On November 22, 2014, the victim’s stepbrother, James “Hunter” Smith, was
riding four-wheelers with his friends when he fell off and hit his head. The victim’s
mother took Hunter to the hospital in Selmer, Tennessee, around 5:30 that evening while
Defendant stayed home with the other children. The victim testified that while the other
children were in the living room watching television, Defendant called her into his
bedroom. She testified that Defendant used his hands and touched “[m]y lower area and
my up here,” indicating her chest, over her clothes. Defendant then took off the victim’s
clothes and touched her “lower area . . . [w]here my underwear is.” The victim testified
that Defendant touched both the inside and outside of her “private part” with both of his
hands. Defendant then took off his clothes and had the victim lie on her back on the bed
while he lay next to her on his side. The victim testified that Defendant “touched me in
my private areas,” both inside and outside, with “[h]is private areas” and that it hurt. The
victim stated that Defendant “touch[ed] my private parts at times and quit[] a few minutes
and then d[id] it again.” Eventually, Defendant stopped and told the victim to go to bed.
The victim testified that she felt scared that Defendant “would hurt me badly.” The
victim put her clothes back on and left the room. It was dark outside, the other children
were already asleep, and the victim was in bed before her mother and Hunter returned
from the hospital.

        On cross-examination, the victim testified that she shared a bedroom with her
sister and that her sister would occasionally follow her if she got up in the middle of the
night. However, her sister stayed in the living room watching television and did not
follow the victim into Defendant’s bedroom on the night in question. The victim
admitted that she had previously made similar accusations against her biological father.
The victim also acknowledged that she was “[k]ind of” angry at Defendant when he
punished her by telling her that she would not be receiving a sewing machine as a
Christmas present. The victim admitted that she cried but denied that she told Defendant
“I hate you.” The victim acknowledged that the incident with the sewing machine could
have been the same day as the alleged assault, but she could not remember. The victim
did not remember injuring her private parts on a bicycle but stated that she had testified
about it previously based on what her mother had told her. The victim did not remember
seeing any scars below Defendant’s bellybutton. On redirect examination, the victim
testified that she could not see very well during the assault because the light in the
bedroom was off and she was not wearing her glasses. The victim denied accusing
Defendant because she was mad about the sewing machine.

      Dr. Lisa Piercy, a board-certified child abuse pediatrician, testified that she
examined the victim on December 12, 2014. She spoke to the victim and the victim’s
mother separately to obtain a medical history before performing a physical exam. The
                                            -2-
victim reported that Defendant, her stepfather, had touched her.          When asked to
elaborate, the victim reported that Defendant

       “called me into his room, made me put on a blindfold,” and she said it was
       a blue one with white dots, “take my clothes off and then he would take his
       clothes off, make me lay on the bed, spread my legs, and he would try to
       put his private spot in mine, and it hurt. He also put his private spot in my
       butt and tried to put it in my mouth, but I kept it, my mouth closed. Stuff
       came out of his private spot that he called the juice and when it would come
       out in his hand, he would rub it on my chest and on my private.”

The victim reported that the incident occurred on November 5, prior to the exam in
December. The victim also reported that her biological father touched her when she was
three or four years old, but she could not recall any details.

       During the physical exam, Dr. Piercy noted that the victim was a healthy,
prepubescent girl. However, Dr. Piercy noted abnormalities in the victim’s hymen that
she characterized as “definitive evidence of penetrating trauma.” Dr. Piercy testified that
the abnormalities she observed would not be due to a birth defect or be sustained while
riding a horse or a bicycle. Dr. Piercy testified that these types of abnormalities are
extremely rare, even in cases of known penetration. The victim did not report a history of
accidental penetration, such as falling on a high-heeled shoe, and such an injury would
involve bleeding and be very traumatic. Dr. Piercy testified that “the story that she gave
of being vaginally penetrated was consistent with what I was seeing on examination, and
there were no other explanations given to me to explain that.” However, there was no
way to determine how old the injury was once it had healed. Dr. Piercy did not observe
any injuries to the victim’s anus but explained that such injuries were even more rare due
to the muscle structure of the area.

        Officer Jason Crouse with the Chester County Sheriff’s Department testified that
he became involved in the case on December 11, 2014, when he was contacted by
Investigator Jennifer Maxwell with the Department of Children’s Services (“DCS”).
Officer Crouse stated that a referral about the victim being involved in a sex crime had
been called in to a child abuse hotline. Investigator Maxwell had already spoken to the
victim by the time Officer Crouse became involved. Both Officer Crouse and
Investigator Maxwell observed the victim’s forensic interview on a closed circuit
television in a separate room.

       After the interview, Officer Crouse and Investigator Maxwell proceeded to the
Milam Road address. Officer Crouse encountered Defendant outside of the home and
sought consent to search for specific items mentioned by the victim during the forensic
interview, specifically a blue and white bandana. Defendant agreed to speak with Officer
                                           -3-
Crouse inside the home and gave consent to search. Officer Crouse searched Defendant’s
bedroom and walked through the rest of the house but was unable to find anything.
Officer Crouse told Defendant that he needed to come to the sheriff’s department to
answer some questions about an allegation, and Defendant stated that he understood.
Defendant was taken to the jail in a patrol car, and Officer Crouse interviewed him the
following morning.

       At the beginning of the interview, Defendant waived his Miranda rights. Officer
Crouse informed Defendant of the allegations, but Defendant did not have much of a
reaction when he was told that he was being accused of “doing something sexually
inappropriate” with the victim. According to Officer Crouse, Defendant seemed very
calm and did not get angry or upset, and his demeanor remained the same throughout the
interview. Officer Crouse characterized Defendant as not very talkative, and the
interview only lasted about thirty to forty-five minutes. Afterwards, Officer Crouse
reduced Defendant’s statement to writing with Defendant able to make corrections as the
statement was being written and read aloud. Defendant then signed the written statement,
which was entered into evidence. The statement reads as follows:

      I have been [the victim’s] step-father since she was 4 or 5 years old. From
      time to time I have the kids alone when my wife is gone. We moved to
      Milam Road when [the victim’s mother] was pregnant with [the victim’s
      half-sister]. There was a 4-wheeler wreck that my son Hunter was involved
      in a few weeks ago. I stayed home with all the kids while [the victim’s
      mother] and Hunter went to the Hospital. The kids were asleep and none of
      them came into my room. My wife had a blue bandana that has white dots
      all over it. I have neve[r] touched [the victim] in a sexual way.

       After the victim had been examined by Dr. Piercy, Officer Crouse learned of the
allegation that Defendant had taken photographs of the victim on a cellphone. The
victim’s mother provided a cellphone that was submitted to the Crime Lab. However, no
inappropriate pictures of underage children were discovered on the phone.

       Defendant testified that he was 53 years old, had graduated from the eighth grade,
and had previously worked as a carpenter, welder, and maintenance technician.
Defendant received Social Security disability benefits as a result of an accident in 1997
when he fell during a hayride and was crushed under the wheels. As a result of this
injury Defendant had surgery on his ankles, stomach, and jaw. Defendant had significant
scarring on his stomach from the surgery as well as a visible scar on his groin from the
placement of a cardiac stent. Photographs of these scars were entered into evidence.
Defendant and the victim’s mother had lived together since 2009 and had been married
for four years. They had a five-year-old daughter together, and they also lived with his

                                          -4-
wife’s three children (including the victim) from her previous marriage and Defendant’s
eighteen-year-old son, Hunter.

        Defendant testified that he was shocked when he learned that he was being
accused of sexually abusing the victim. He remembered the evening of November 22,
2014, because his son’s going to the hospital was a significant event. Defendant testified
that during the day, around 2:30 or 3:00 p.m., he was watching television in his bedroom
with his wife and could see the children in the living room. He saw the victim hit her
sister on the back, so he put her in timeout. The victim then hit one of her brothers, so
Defendant told her that she would not be getting the sewing machine as her Christmas
present. The victim said that she hated him and “stomped off mad.” Defendant testified
that the sewing machine remained in the house but the victim was not allowed to use it.
Defendant did not know what happened to the sewing machine after he was arrested in
December. Defendant testified that three years previously, he was told by his wife that
the victim threatened to call DCS on her after she “popped [the victim] on the butt” for
misbehaving during a bath. Defendant testified that the victim remained mad at him for a
few days and would occasionally ask whether she would be getting the sewing machine.

       Around 5:30 or 6:00 p.m. on November 22, 2014, Hunter’s friends brought him
back to the house after he had fallen from of one of the four-wheelers. Defendant and his
wife agreed that she would take Hunter to the hospital while Defendant stayed home with
the other children. Defendant testified that he fixed himself a sandwich in the kitchen
and then ate his sandwich and watched television in his bedroom. Defendant testified
that the children were watching television in the living room until 8:00 p.m. and that they
were in bed before his wife and son returned around 8:30 p.m. The children got out of
bed to see how Hunter was doing when he returned from the hospital. Defendant testified
that nothing significant happened after that night until the investigator showed up.
Defendant cooperated with the investigator, spent the night in jail, and agreed to waive
his rights and give a statement. Defendant explained that he does not get loud or upset
when he is in shock but takes time to think things through. Defendant denied touching
the victim’s private part with his private part and denied that he would ever touch any
child in that manner.

       The State recalled the victim’s mother to testify in rebuttal. She denied that there
was any discussion about not giving the victim the sewing machine and did not recall any
of the children getting into trouble on the day she took Hunter to the hospital. She denied
that the victim ever threatened to call DCS on her. She also explained that the
accusations against the victim’s biological father were made by a friend who claimed that
he touched her daughters. The victim was interviewed by the Carl Perkins Center when
she was four years old, but she did not say anything about her father’s touching her, so
DCS did not get involved. The victim told her mother about Defendant’s touching her on
the Sunday prior to his arrest on December 11, 2014.
                                           -5-
       Sentencing Hearing

        The State entered into evidence the presentence report. Defendant’s criminal
record included three convictions for domestic assault as well as resisting arrest and
driving under the influence of an intoxicant. The victim and her mother chose not to
testify, but the presentence report contained victim impact statements from both asking
for a maximum sentence. Defendant chose not to present any proof or make a statement
of allocution.

       The trial court determined that Defendant was a Range I offender. The trial court
merged the two counts of aggravated sexual battery into a single conviction, finding that
“the touching of the breast area occurred pretty much simultaneously or within a
relatively short period of time at the same time that the touching of the vaginal area
occurred.” Both parties agreed that Defendant was not eligible for probation. The trial
court found that Defendant had a previous history of criminal behavior and gave that
factor “great weight for enhancement purposes.” The trial court noted that several of
Defendant’s prior criminal charges occurred within a few months of each other while he
would presumably still be on probation for the earlier charges. The trial court found that
Defendant abused a position of private trust as the victim’s stepfather and by taking
“advantage of an opportunity when the mother was gone to take the child into this
bedroom area, to sexually abuse the child as she described in court.” The trial court
noted the Defendant’s health, education, and work history and found that there was not
much indicated in the presentence report that could be considered as a mitigating factor.
The trial court imposed a sentence of twelve years to be served at 100% as a violent
offender and placed Defendant on community supervision for life.

Analysis

       Sufficiency of the Evidence

        Defendant challenges the sufficiency of the evidence supporting his conviction for
aggravated sexual battery. Specifically, Defendant contends that “[t]he record in this
case shows that the jury simply dismissed obvious untrue statement made by [the victim]
at trial that directly discredited her testimony in this case.” Additionally, Defendant
argues that “the victim in this case failed to point out to the jury what she meant by her
private parts/areas so as to prove that this included her genitalia.” The State responds that
“[t]he evidence was more than sufficient to convict Defendant,” arguing that any
inconsistencies in the victim’s testimony were assessed by the jury and that the victim’s
description of the Defendant’s touching satisfied the statutory definition of “intimate
parts.” We agree with the State.

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       When a defendant challenges the sufficiency of the evidence, this court is obliged
to review that claim according to certain well-settled principles. The relevant question is
whether any rational trier of fact could have found the accused guilty of every element of
the offense beyond a reasonable doubt. See Tenn. R. App. P. 13(e); Jackson v. Virginia,
443 U.S. 307, 319 (1979); State v. Davis, 354 S.W.3d 718, 729 (Tenn. 2011). The jury’s
verdict replaces the presumption of innocence with one of guilt; therefore on appeal, the
burden is shifted onto the defendant to show that the evidence introduced at trial was
insufficient to support such a verdict. State v. Reid, 91 S.W.3d 247, 277 (Tenn. 2002).
On appellate review, “‘we afford the prosecution the strongest legitimate view of the
evidence as well as all reasonable and legitimate inferences which may be drawn
therefrom.’” Davis, 354 S.W.3d at 729 (quoting State v. Majors, 318 S.W.3d 850, 857
(Tenn. 2010)). In a jury trial, questions involving the credibility of witnesses and the
weight and value to be given the evidence, as well as all factual disputes raised by the
evidence, are resolved by the jury as trier of fact. State v. Bland, 958 S.W.2d 651, 659
(Tenn. 1997); State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990). “A guilty verdict by
the jury, approved by the trial court, accredits the testimony of the witnesses for the State
and resolves all conflicts in favor of the prosecution’s theory.” Reid, 91 S.W.3d at 277
(quoting Bland, 958 S.W.2d at 659). It is not the role of this court to reweigh or
reevaluate the evidence, nor to substitute our own inferences for those drawn from the
evidence by the trier of fact. Id. The standard of review is the same whether the
conviction is based upon direct evidence, circumstantial evidence, or a combination of
the two. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011); State v. Hanson, 279
S.W.3d 265, 275 (Tenn. 2009).

       As applicable to this case, aggravated sexual battery is the unlawful sexual contact
with a victim by the defendant when the victim is less than thirteen years of age. T.C.A.
§ 39-13-504(a). “Sexual contact” is defined as including “the intentional touching of the
victim’s, the defendant’s, or any other person’s intimate parts, or the intentional touching
of the clothing covering the immediate area of the victim’s, the defendant’s, or any other
person’s intimate parts, if that intentional touching can be reasonably construed as being
for the purpose of sexual arousal or gratification.” T.C.A. § 39-13-501(6). “Intimate
parts” include “the primary genital area, groin, inner thigh, buttock or breast of a human
being.” T.C.A. § 39-13-501(2).

       Viewing the evidence in a light most favorable to the State, the proof showed that
on the evening of November 22, 2014, the victim’s mother took the victim’s stepbrother
to the hospital after a four-wheeler accident, leaving Defendant alone with the victim and
the other children. Defendant called the victim into his bedroom, where he proceeded to
touch the victim with his hands over her clothes. The victim testified that Defendant
touched her “lower area,” which she explained is “[w]here [her] underwear is,” and her
“up here,” indicating her chest. Defendant then removed the victim’s clothing and again
touched her “lower area,” using his hands to touch the inside and the outside of her
                                            -7-
“private parts.” Defendant then removed his own clothing and had the victim lie on the
bed, where he proceeded to touch her “private areas” with his “private areas.” The victim
testified that it hurt. It was undisputed that the victim was nine years old at the time.

       Defendant points out inconsistencies between the victim’s trial testimony and her
statement to Dr. Piercy made just weeks after the incident, particularly the absence of any
inappropriate photographs on Defendant’s phone or any testimony by the victim
regarding anal penetration, the use of a blindfold, or Defendant’s ejaculation. However,
the jury as the trier of fact was in the best position to assess the credibility of the
witnesses and resolve any factual disputes. In fact, by its verdict, the jury determined that
there was not sufficient evidence to find the Defendant guilty beyond a reasonable doubt
of rape of a child, which requires sexual penetration, despite the medical exam revealing
“definitive evidence of penetrating trauma.” See T.C.A. § 39-13-522(a). We will not
second-guess the jury’s credibility determinations.

        As to Defendant’s argument that the victim did not specify that Defendant touched
her genitalia, such is not required under the statutory definition of “intimate parts.” See
T.C.A. § 39-13-501(2). Even if the victim’s description of Defendant’s touching of her
“up here” was not specific enough to indicate that he touched her breast, her description
of her “lower area,” “[w]here [her] underwear is,” and her “private parts” can reasonably
be construed as including her primary genital area, groin, inner thigh, or buttock.
Resolving all factual disputes in favor of the State, as we must on appeal, the evidence is
sufficient to establish that Defendant touched the victim’s intimate parts, or at least the
clothing covering her intimate parts, for the purpose of sexual arousal or gratification.
Defendant is not entitled to relief.

       Sentencing

        Defendant argues that his twelve-year sentence in this case was excessive and that
the trial court made “clearly erroneous assessments of the evidence” necessitating a
remand for resentencing. Specifically, Defendant notes that his criminal record as
reflected in the presentence report did not contain any felony convictions and the most
recent misdemeanor conviction was in 2003, eleven years prior to the offense in this case.
Additionally, Defendant argues that “the record fails to support the trial court’s finding
that [Defendant] was in a position of trust with respect to the victim.” The State responds
that the trial court did not abuse its discretion in imposing the maximum sentence within
the range. We agree with the State.

       Appellate review of sentencing is under the abuse of discretion standard with a
presumption of reasonableness. State v. Bise, 380 S.W.3d 682, 708 (2012); see also State
v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012). A finding of an abuse of discretion
“‘reflects that the trial court’s logic and reasoning was improper when viewed in light of
                                            -8-
the factual circumstances and relevant legal principles involved in a particular case.’”
State v. Shaffer, 45 S.W.3d 553, 555 (Tenn. 2001) (quoting State v. Moore, 6 S.W.3d
235, 242 (Tenn. 1999)). To find an abuse of discretion, the record must be void of any
substantial evidence that would support the trial court’s decision. Id.; State v. Grear, 568
S.W.2d 285, 286 (Tenn. 1978); State v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App.
1980). In the context of sentencing, as long as the trial court places the sentence within
the appropriate range and properly applies the purposes and principles of the Sentencing
Act, this court must presume the sentence to be reasonable. Bise, 380 S.W.3d at 704-07.
As the Bise court stated, “[a] sentence should be upheld so long as it is within the
appropriate range and the record demonstrates that the sentence is otherwise in
compliance with the purposes and principles listed by statute.” Id. at 708. The defendant
bears “the burden of showing that the sentence is improper.” State v. Ashby, 823 S.W.2d
166, 169 (Tenn. 1991).

      In determining a specific sentence within a range of punishment, the trial court
should consider, but is not bound by, the following advisory guidelines:

       (1) The minimum sentence within the range of punishment is the sentence
       that should be imposed, because the general assembly set the minimum
       length of sentence for each felony class to reflect the relative seriousness of
       each criminal offense in the felony classifications; and

       (2) The sentence length within the range should be adjusted, as appropriate,
       by the presence or absence of mitigating and enhancement factors set out in
       §§ 40-35-113 and 40-35-114.

T.C.A. § 40-35-210(c). Although the trial court should consider enhancement and
mitigating factors, the statutory enhancement and mitigating factors are advisory only.
See T.C.A. § 40-35-113, -114; see also Bise, 380 S.W.3d at 699 n.33, 704; State v.
Carter, 254 S.W.3d 335, 343 (Tenn. 2008). “[A] trial court’s weighing of various
mitigating and enhancement factors [is] left to the trial court’s sound discretion.” Carter,
254 S.W.3d at 345. This court will uphold the trial court’s sentencing decision “so long
as it is within the appropriate range and the record demonstrates that the sentence is
otherwise in compliance with the purposes and principles listed by statute.” Bise, 380
S.W.3d at 709-10.

       In this case, the trial court correctly found that because Defendant did not have
any prior felony convictions, he was classified as a Range I offender. See T.C.A. 40-35-
105. For the Class B felony conviction of aggravated sexual battery, Defendant was
subject to a sentencing range of eight to twelve years. See T.C.A. § 40-35-112(a)(2).
The trial court found as an enhancement factor that Defendant had a history of criminal
convictions in addition to those necessary to establish his range. See T.C.A. § 40-35-
                                            -9-
114(1). This court has often upheld sentences that were enhanced under this factor when
the only prior convictions on a defendant’s record were misdemeanors. See, e.g., State v.
Demarcus Lashawn Blackman, No. M2016-01098-CCA-R3-CD, 2017 WL 3084852, at
*5-6 (Tenn. Crim. App. July 20, 2017) (finding trial court correctly applied enhancement
factor (1) based upon the defendant’s prior record of misdemeanor convictions and
upholding maximum Range I sentence), no perm. app. filed; State v. Thomas Antonio
Ricketts, No. M2016-00816-CCA-R3-CD, 2017 WL 1830102, at *5 (Tenn. Crim. App.
May 5, 2017) (finding no abuse of discretion when trial court enhanced the defendant’s
Range I sentence based on numerous prior misdemeanor convictions), no perm. app.
filed. The record adequately supports the trial court’s finding of a history of criminal
convictions in addition to those necessary to establish Defendant’s range.

        As to Defendant’s argument that the record does not support the trial court’s
finding that Defendant occupied a position of private trust with respect to the victim, see
T.C.A. § 40-35-114(14), we disagree. Testimony at trial from the victim, her mother, her
stepbrother, and Defendant himself established that Defendant was the victim’s stepfather
and that he lived with the victim and her family for several years prior to this incident.
Moreover, the victim and her siblings were left in Defendant’s sole care while her mother
and stepbrother went to the hospital on November 22, 2014, and it was during this time
that he molested the victim. The Tennessee Supreme Court has held that an adult
perpetrator “occupies a position of ‘presumptive private trust’ with respect to” a minor
victim if “the adult perpetrator and minor victim are members of the same household.”
State v. Blackstock, 19 S.W.3d 200, 212 (Tenn. 2000); see also State v. Carico, 968
S.W.2d 280, 286 (Tenn. 1998) (“There can be no question that the rape of a child residing
in the family is an abuse of private trust.”). The record more than adequately supports the
trial court’s application of this enhancement factor. The trial court did not abuse its
discretion in sentencing Defendant to the maximum sentence within his range.
Defendant is not entitled to relief.

                                     CONCLUSION

      Based on the foregoing, we affirm the judgments of the trial court.


                                  ____________________________________________
                                  THOMAS T. WOODALL, PRESIDING JUDGE




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