           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT JACKSON
                                  Assigned On Briefs July 9, 2013

                      STATE OF TENNESSEE v. MARCO BLANCH

                         Appeal from the Criminal Court for Shelby County
                             No. 11-03851     J. Robert Carter, Judge



                      No. W2012-01027-CCA-R3-CD - Filed October 4, 2013


In 2011, the Shelby County Grand Jury indicted Appellant, Marco Blanch, for aggravated
rape based upon bodily injury sustained by the victim. A jury convicted Appellant of the
lesser included offense of rape. Appellant was sentenced as a Range I, violent offender to an
eleven-year sentence at 100 percent. On appeal, Appellant argues that the evidence presented
by the State at trial was insufficient to support his conviction because the victim consented
to sexual activity. After a thorough review of the record, we affirm the judgment of the trial
court and conclude that the evidence was sufficient to support Appellant’s conviction.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which J OSEPH M. T IPTON, P.J., and
A LAN E. G LENN, J., joined.

Stephen Bush, Chief Public Defender and Harry E. Sayle, III, Assistant Public Defender,
Memphis, Tennessee, for the appellant, Marco Blanch.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney
General; Amy P. Weirich, District Attorney General, and Terre Fratesi, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                                  OPINION

                                            Factual Background

               On February 3, 2011, C.J.1 , the victim, was seventy-nine years old and was
living in a duplex in Memphis. After her husband’s death in 1996, the victim had lived on


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           It is the policy of this Court to refer to the victims of sexual crimes by their initials.
her own at the duplex. Her son, Sam Jones, eventually moved in with the victim because the
family noticed she had become forgetful and often wandered down the street or around the
block. Mr. Jones helped with the cooking and cleaning. The victim’s primary care doctor
since 2005, Dr. Ahsan Kathawala, testified that he first noticed a decline in the victim’s
cognitive abilities in 2006 and informed the family she was in the early stages of dementia
or Alzheimer’s, which he classified as mild. At this point in time, the victim had a score of
nineteen out of thirty on the mental state examination. He further testified that in March
2011, the victim’s cognitive abilities had significantly deteriorated, impairing her ability to
properly reason and recall information, classifying her stage of dementia or Alzheimer’s as
moderately severe. Her mental state had declined to eleven or twelve out of thirty. Dr.
Kathawala opined that the victim was not capable of giving consent to sexual activity
because she could no longer understand the consequences of her conduct. He also stated that
the victim suffered from rheumatoid arthritis, osteoporosis, and hypertension. She used a
crutch because these ailments hindered her ability to walk. Although the victim had not been
declared incompetent, her family would not allow her to drive.

        Vernecia Askew, the victim’s daughter, provided the victim with transportation, did
the victim’s laundry, and made sure the victim’s bills were paid. The victim’s grandson,
Kenneth Nash, lived on the other side of the duplex for the twenty-one years preceding the
incident and helped the victim with her medicine and cooking. Mr. Nash had, at some point,
installed a surveillance camera because things had gone missing from the victim’s side of the
duplex. The surveillance camera presented a view of the victim’s front room and front porch
but not her bedroom.

        On February 3, 2011, Appellant came to the duplex shared by the victim and Mr.
Jones to watch a basketball game and drink beer. Mr. Jones testified that Appellant had been
to the residence on two or three occasions before the day in question to watch sports. Mr.
Jones had not invited Appellant to his residence to watch sports on the day of the incident.
Upon arriving at the residence of Mr. Jones and the victim, the victim told Appellant that Mr.
Jones was not home, but Appellant could wait for Mr. Jones inside if he would give her some
of his beer. The victim retrieved a glass, and Appellant then poured her a glass of beer. The
two talked before the victim went into her bedroom. Appellant claims that the victim
initiated the incident at issue. He stated that the victim said she liked younger men and
invited him to her bedroom where she initiated sexual intercourse by rubbing his privates and
kissing him.

       Sergeant David Sloan of the Memphis Police Department reviewed the surveillance
tape and opined that there was no visual or audio evidence of the victim initiating the
incident with Appellant. Sergeant Sloan testified that the basketball game on the television
can be seen and heard on the surveillance tape. He also stated that the victim’s physical


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disabilities that hindered her ability to walk are evident on the surveillance tape. He further
stated that the video shows the victim exiting her bedroom briefly, returning, and Appellant
entering shortly after. Sergeant Sloan also noted from his viewing of the surveillance video
that after Appellant entered the victim’s bedroom a distinct yell, like a person in pain, can
be heard coming from the victim’s bedroom.

       Mr. Nash heard the knock at the victim’s door. He went over after he heard more
talking. Mr. Nash entered and proceeded to open the victim’s bedroom door and saw
Appellant engaged in sexual intercourse with the victim. Appellant, while putting his pants
on, explained that the victim had wanted him to do it. The victim began yelling at Mr. Nash
that she could see whomever she desired. At some point during her yelling, the victim
referred to Appellant as Curtis, her deceased husband.

        Ms. Askew also testified that the victim was yelling when she arrived. Mr. Nash
prevented Appellant from leaving while Mr. Jones, Ms. Askew, the police, and others
arrived. Sergeant Sloan responded to the call and conducted interviews. Sergeant Sloan
declined to take a formal statement from the victim because, as he testified, it was apparent
she was suffering from a mental deficiency due to her nonsensical answers to his questions.
Sergeant Sloan also noted that the victim inquired about relatives who were deceased and
was expecting her deceased husband to arrive at the duplex. Officer Brandon Hudson was
also at the scene and testified as to the victim’s mental incapacities. Officer Hudson
explained that the victim had difficulty concentrating and answering his questions, stating
that she could not stay focused on the task at hand or the questions he was asking. He further
stated that the victim would “jump in and out,” referring back to childhood, working in the
field, or driving and working on tractors.

       Early in the morning of February 4, 2011, the victim was taken to the rape crisis center
by Ms. Askew and examined by Sally Discenza, a forensic nurse examiner. Upon an
examination, Nurse Discenza observed an acute or recent injury on the victim’s labia and
posterior fourchette, the area just outside the vagina. She explained that both areas were
bleeding, reflecting a recent occurrence or injury. According to Nurse Discenza, the victim’s
injuries were consistent with sexual penetration. She further testified that the victim was
unable to spread her legs to the point where Nurse Discenza could safely insert the speculum
for examination. Nurse Discenza noted that she was fearful of hurting the victim because
her legs were so stiff and immobile from extreme contractures. Nurse Discenza opined that
the victim’s injury was consistent with a forced penetration. The victim’s answers to Nurse
Discenza’s questions and some of her statements were nonsensical. The victim even told her
that no one but her husband, Curtis, enters her bedroom. Ms. Askew confirmed the victim’s
statements to Nurse Discenza regarding her late husband.



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       On June 9, 2011, an indictment was returned charging Appellant with aggravated rape
in violation of Tennessee Code Annotated section 39-13-502 for the incident occurring on
February 3, 2011. On February 9, 2012, the jury returned a verdict finding Appellant guilty
of the lesser included offense of rape pursuant to Tennessee Code Annotated section
39-13-503. The judge sentenced Appellant as a Range I, violent offender to eleven years at
100 percent. Appellant’s motion for new trial was denied. He filed a timely notice of appeal.

                                        ANALYSIS

       Appellant challenges the sufficiency of the evidence supporting his rape conviction.
Appellant argues that the victim consented to sexual intercourse and, in fact, initiated the
proceedings. The State contends that the evidence was sufficient to convict Appellant of
rape and that this Court should affirm the judgment of the trial court.

        When a defendant challenges the sufficiency of evidence, the relevant question is
whether any trier of fact could have found the accused guilty of every element of the offense
beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307,
318-19 (1979); State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). In making this decision this
Court is to afford the State “the strongest legitimate view of the evidence as well as all
reasonable and legitimate interests that may be drawn therefrom.” State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982). A guilty verdict that has been rendered by a jury and
“approved by the trial judge, accredits the testimony of the” State’s witnesses and resolves
all conflict in favor of the State. State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994); Harris,
839 S.W.2d 54, 75 (Tenn. 1992). The guilt of a defendant may be predicated upon direct
evidence, circumstantial evidence, or a combination of the previous two. See State v.
Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999). Although the accused is
originally cloaked by a presumption of innocence, a guilty jury verdict removes this
presumption and replaces it with a presumption of guilt, thus, placing the burden of proof
with the defendant to show insufficiency of the evidence on appeal. Tuggle, 639 S.W.2d at
914. As such, questions concerning the weight and value to be given to evidence, as well as
all factual issues raised by the evidence, are resolved by the trier of fact; this Court is
precluded from re-weighing the evidence when evaluating the convicting proof, nor may we
substitute our own inferences for those formed by the trier of fact from circumstantial
evidence. State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990); State v. Morgan, 929 S.W.2d
380, 383 (Tenn. Crim. App. 1996); State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.
App. 1990).

        “The standard of review is the same whether the conviction is based upon direct or
circumstantial evidence.” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting
State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). Here, Appellant was convicted of rape,


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as a lesser included offense of aggravated rape. When a defendant is convicted of a lesser
included offense, the defendant may challenge the sufficiency of the evidence even if the
proof is not sufficient to support the primary offense. State v. Parker, 350 S.W.3d 883, 909
(Tenn. 2001). When convicted of the lesser included offense, the proof must be sufficient
to support each and every element of the conviction offense to sustain a conviction. Id. “If
every element is not supported by sufficient proof, the defendant is entitled to a reversal of
the conviction.” Id.

       Relevant to this appeal, rape is defined as the following:


       [U]nlawful 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 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 penetration is accomplished by fraud.


T.C.A. § 39-13-503(a).

        Appellant contends that the victim consented to sexual intercourse and, in fact,
initiated the sexual activity through her actions and statements. Appellant argues that the
testimonies of Mr. Nash and Ms. Askew, as well as the surveillance video support the
conclusion that the victim was aware of her actions. Appellant contends that the video
showing the victim inviting him inside, asking for and receiving some of his beer
demonstrates her ability to consent. Further, Appellant argues that the victim’s yelling at Mr.
Nash and Ms. Askew about their interruption of the incident demonstrates that she had both
consented to and sought sexual activity.

       In viewing the evidence most favorably for the State, it is reasonable that a jury could
conclude that Appellant had reason to know the victim was suffering from a state of
dementia or mental defectiveness that rendered her incapable of giving consent. The victim’s
stage of dementia or Alzheimer’s was so severe that others noticed she was mentally


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defective. Despite the victim’s statements to Mr. Nash and Ms. Askew and the surveillance
video, Appellant’s allegation that the victim consented is negated by the State’s proof. Dr.
Kathawala testified as to the declining mental capacities of the victim. He stated that she no
longer had the ability to properly reason or to recall information. Most importantly, Dr.
Kathawala testified that the victim was no longer able to give consent. Additionally,
Sergeant Sloan, Officer Hudson, and Nurse DiScenza immediately noticed the victim’s
defective mental state and inability to properly reason or give consent during their
interactions with the victim. Given the obvious nature of the victim’s deteriorated mental
capacity, it is reasonable for a jury to conclude that Appellant had reason to know that she
was unable to give consent. The task of weighing the evidence at trial belongs to the jury.
In this case, the jury chose to accredit the State’s witnesses. There was ample evidence for
a rational jury to conclude beyond a reasonable doubt that Appellant sexually penetrated the
victim when he knew or had reason to know that she suffered from a mental defect rendering
her unable to consent. Appellant is not entitled to relief.

                                      CONCLUSION

       Based on the foregoing reasons and authority, the judgment of the trial court is
affirmed.




                                           ___________________________________
                                           JERRY L. SMITH, JUDGE




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