             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT NASHVILLE
                                  Assigned on Briefs March 14, 2006

                      STATE OF TENNESSEE v. MICHAEL WHITE

                          Appeal from the Circuit Court for Marshall County
                              No. 16303 Franklin Lee Russell, Judge



                          No. M2005-01659-CCA-R3-CD - Filed July 13, 2006


The Defendant, Michael White, was convicted of five counts of rape and sentenced to fifty-five years
in the Department of Correction. The Defendant now appeals asserting that: (1) insufficient
evidence was presented to support his convictions; and (2) the sentence imposed was excessive and
contrary to law. We affirm the judgments of the trial court.

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

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which DAVID G. HAYES and JOHN
EVERETT WILLIAMS, JJ., joined.

Curtis H. Gann, Shelbyville, Tennessee (on appeal) and Andrew Jackson Dearing III, Shelbyville,
Tennessee (at trial) for the appellant, Michael White.

Paul G. Summers, Attorney General and Reporter; Leslie Price, Assistant Attorney General; William
Michael McCown, District Attorney General; and Weakley E. Bernard, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                                      OPINION
                                                       I. Facts

        At trial, the victim in this case, A.B.,1 testified as follows: She is the Defendant’s step-
daughter and was thirteen and subsequently fourteen years old when the incidents at issue occurred.
At the time of her testimony, she was in the ninth grade, however, her age was appropriate for the
tenth grade. A.B. testified that she was held back in kindergarten and that she has been in resource
classes since the third grade because she has difficulty with reading, writing, and spelling.




         1
          W e will refer to the Defendant’s step-daughter by her initials, “A.B.,” or as “the victim.” It is the policy of
this Court not to identify her by her name because she was a minor when these events a occurred.
        A.B. testified that, in 1999, her aunt, Diedre Potts, had a boyfriend named “Charlie” and that
Charlie had “touched” A.B. and her younger sister. A.B. stated that, although Charlie touched her,
no penetration took place. A.B. testified that, prior to the events involving the Defendant, she had
never had sex, been penetrated, or injured in her vaginal area, and while she had started menstruating
prior to the incidents with the Defendant she had never used a tampon.

        A.B. stated that the first time the Defendant touched her inappropriately was a couple of days
after A.B., her mother, and her sister had moved into the Defendant’s apartment located on Bates
Street in Marshall County, Tennessee. A.B.’s family moved in with the Defendant about one week
after A.B. first met the Defendant, and after her mother had dated the Defendant for about a week.
A.B. testified that she was asleep in the bedroom that she shared with her sister, and her mother was
asleep in the bedroom that her mother shared with the Defendant. The Defendant entered A.B.’s
room at around 1:00 or 2:00 a.m., woke A.B. up, and told A.B., “[G]et up; you can watch T.V.”
A.B. was happy to hear that she could get up because she enjoys watching television. A.B., who was
wearing a Winnie the Pooh T-shirt and panties, got up and went into the livingroom. She sat down
on the far right end of a couch that had space for three individuals, and she watched a cable
television sitcom called “Smart Guy.”

        A.B. testified that, while she watched Smart Guy, the Defendant partially closed the door to
A.B.’s bedroom and also partially closed the door to A.B.’s mother’s bedroom. A.B. stated that
between the livingroom and the bedrooms there is a hallway, and a curtain at the end of the hallway
adjoins the livingroom. A.B. testified that the Defendant tied the curtain into a knot when he entered
the livingroom. A.B. stated that the doors were left ajar and the curtain was knotted so that the
Defendant could see anyone coming from the bedrooms down the hallway.

         The Defendant sat down on the left side of the couch so that the cushion in the middle of the
couch was between A.B. and him. A.B. said that the Defendant was wearing a pair of boxer shorts,
but nothing else, and that he then moved next to A.B. and began rubbing her legs from the knees up.
While the Defendant rubbed her legs, A.B. noticed that the Defendant had long fingernails. A.B.
testified that the Defendant then pulled her panties down, taking them completely off of her left leg
and down to her ankle on her right leg. A.B. recalled that she was scared and said that she told the
Defendant to stop. She testified that she did not tell the Defendant to stop very loudly, however, she
said it loud enough for the Defendant to hear her. A.B. stated that the Defendant stuck one of his
fingers into her vagina and that it hurt. The Defendant’s finger penetrated A.B.’s vagina, and he
moved it around while it was inside of her. A.B. testified that, after the Defendant removed his
finger from her vagina, the Defendant inserted his penis “all the way” into her vagina. She stated
that she again told the Defendant to stop, but the Defendant said “no” and covered her mouth with
his hands. A.B. indicated that the Defendant did not ejaculate on this occasion.

        A.B. said that, after this incident the Defendant told her, “If you tell, nobody will believe you
and it will split the family up.” Additionally, the Defendant told A.B. to go into the bathroom and
to douche. A.B. testified that her mother had previously shown her how to use a douche but that she
had never used one before. A.B. said that, after she went into the bathroom, the Defendant followed


                                                  -2-
her and helped her with the douche. A.B. indicated that she was scared while this was happening,
and she did not tell her mother about this incident because she was scared of the Defendant.

         One week later, the Defendant approached A.B. when she was in the kitchen early in the
morning doing her chores while her mother and sister were still asleep. When the Defendant entered
the kitchen, A.B. was siting on the kitchen table wearing her Winnie the Pooh T-shirt, shorts, and
panties. The Defendant touched A.B.’s leg, and she told him that if he did not stop she would
scream. In response the Defendant put his hand over A.B.’s mouth. Although A.B. attempted to
scream, she was unable to make enough sound for her mother or sister to hear her. A.B. stated that
the Defendant used his free hand to pull down her shorts and that she attempted to keep them on with
one hand while using her other hand to hold onto the table. She said that she held onto the table so
that the Defendant could not slide her onto the floor. A.B. testified that she was unsuccessful in
keeping her shorts and panties on and that the Defendant pulled them down to her ankles. She stated
that the Defendant’s fingernails were still long and that he stuck a finger inside her vagina, causing
her pain. A.B. said that the Defendant scooted her to the edge of the table while he stood in front
of her, and then he stuck his penis all the way inside her, which hurt. A.B. testified that, prior to this
encounter, she did not know that men ejaculated, but when the Defendant removed his penis from
her vagina “white stuff” came out of his penis. Afterward, A.B. cleaned herself with toilet paper.
She stated that after each encounter with the Defendant she bled, but she was not menstruating.

        A.B. testified that in August of 2003, after the Defendant and A.B.’s mother had married, she
and her family moved with the Defendant into a three bedroom house on Lunn Street, which is also
in Marshall County. The Defendant and A.B.’s mother shared a bedroom, while A.B. and her sister
each had a room of their own. A.B. stated that, about one month after moving into the Lunn Street
house, A.B. was watching a cartoon called “Kim Possible” before anyone else had awakened. A.B.
was lying down on the right side of the couch, wearing a T-shirt, shorts, and panties, with her feet
on the center cushion. She testified that the Defendant entered the room, sat down on the left side
of the couch, and “yanked” her shorts and panties down to her ankles. The Defendant then inserted
a finger into A.B.’s vagina and “move[d]” it around, which caused A.B. pain. She told the
Defendant to stop, but she could not recall how he responded or if he responded at all. A.B. stated
that the Defendant penetrated her with his penis, but he did not put his penis “all the way in,” so it
did not hurt her as much as it had previously.

        Afterward, the Defendant told A.B. not to tell anyone. A.B. said that she did not tell anyone
because she was scared of the Defendant. She also stated that she did not know if her mother would
have protected her if she had told her, and when her mother ultimately found out she did not protect
her. A.B. testified that she did not see her mother for a couple of weeks after her mother was
notified of the allegations.

        A.B. testified that, in December of 2003 or January of 2004 the Defendant’s workplace was
closed for the Christmas holidays, and another incident occurred during this time period. A.B. stated
that she was asleep in her bed, wearing a T-shirt, panties, and shorts. She awoke to find the
Defendant in her bedroom rubbing her legs. He then pulled her shorts and panties down to her knees


                                                   -3-
and inserted his penis into her vagina. A.B. told the Defendant to stop, which he did, but then told
A.B. not to tell anyone.

        A.B. testified that, on Easter Sunday in 2004, she awoke before anyone else in the home, and
she attempted to change the batteries on a karaoke machine in the livingroom. She was dressed in
a T-shirt, shorts, and panties. She did not have any batteries, so she went into the bedroom that her
mother and the Defendant shared to request batteries for the karaoke machine. The Defendant gave
A.B. new batteries, and she returned to the livingroom and began singing into the machine. A.B. had
recently broken her right ankle, which was in a “boot,” and she was sitting on the arm of a love seat
while singing. After approximately five minutes, the Defendant emerged and began singing into the
karaoke machine too. Shortly thereafter, the Defendant left, and A.B. turned off the karaoke machine
and began watching televison. A.B. stated that, at this time, the Defendant reappeared and began
rubbing her legs. The Defendant then pulled A.B.’s shorts and panties off of her left leg and down
to the boot on her right ankle. A.B. testified that the Defendant stuck his finger into her vagina and
subsequently stuck his penis “all the way” in as well. She stated that when the Defendant put his
penis inside of her, it hurt her. The Defendant told her to be quiet and not to tell anybody what had
happened. A.B. also testified that, while living on Lunn Street, she had not had her period for a
couple of months, and the Defendant gave her two pregnancy tests.

        A.B. said that, she never told her mother about any of the five incidents because she was
scared that her mother would not believe her and also because she was scared that the Defendant
would hurt her. Eventually, A.B. told some of her friends at school about the abuse and then
reported the abuse to school officials. A.B. admitted that the fact that the Defendant had recently
“grounded” her was the impetus for revealing the abuse. The Defendant grounded her because he
caught a boy, S.H., sneaking out of A.B.’s window one morning. A.B. said that she and her younger
sister had let S.H. in through the window on a couple of occasions and that nothing improper had
taken place between A.B. and S.H. A.B. testified that being grounded made her angry at the
Defendant and that was why she reported the abuse.

       Initially, A.B. shared the information with Carol Jean, a detective with the Lewisburg Police
Department, and Jessica Miller from the Department of Human Services. Detective Jean and Miller
took A.B. home and then to her grandmother’s house.

        On cross-examination, A.B. admitted that in 1999 she had not hesitated to report that her
aunt’s boyfriend, Charlie, had molested her and her sister. She also acknowledged that Charlie had
not been prosecuted or arrested in connection with the alleged sexual assault. A.B. repeated that,
each time that she told the Defendant to stop, she used a normal speaking voice and did not yell or
scream. She also testified that she had argued with the Defendant about S.H. coming into the house
on previous occasions. Finally, she acknowledged that about a month after her family moved into
the Defendant’s home on Bates Street she had told her mother that all of her friends had been
molested or raped.




                                                 -4-
       On re-direct examination, A.B. maintained that her friends had in fact been molested and
raped. She also stated that she cried after each incident with the Defendant took place. A.B. said
that another reason she reported the rapes to the authorities was encouragement from a friend at
school who said that she had been raped in the past. A.B. reiterated that she never had sex with S.H.
when he was in her house.

        Wayne Wesson, a special agent with the Tennessee Bureau of Investigation (“TBI”), testified
that, on April 21, 2004, the District Attorney General’s Office requested that he assist the Lewisburg
Police Department with an investigation of the Defendant. He stated that later that day, he traveled
to Cosmolab, where A.B.’s mother, Stephanie White, worked to discuss the case with her. Miller
and Detective Jean accompanied Agent Wesson. After speaking with White, it was agreed that A.B.
would be removed from White’s custody and would be placed in her grandmother’s home for her
protection.

        Agent Wesson obtained permission from Stephanie White to search the family’s home on
Lunn Street, and the agent and Detective Jean proceeded to search the property. Agent Wesson
entered the residence looking for physical evidence of the crimes or evidence of a predisposition for
pedophilia. He requested a “Woods Light” from the hospital, which is a flourescent light used to
detect latent fluids on carpeting, furniture and other objects. Agent Wesson used the Woods Light
on the loveseat and found that there had been some kind of fluid spilled on the arm and on the
cushions at some point. He also used the Woods Light on A.B.’s bed, but he did not detect any fluid
on the bed. Agent Wesson stated that, if the sheets on the bed had been washed at some point after
human fluid had been on them, the Woods Light would probably not be able to detect the spill. In
order to determine if the fluid on the love seat was human fluid, and, subsequently, to determine
what kind of human fluid, Agent Wesson had to take the stained material to the crime laboratory.
To do so, he removed the fabric from the arm of the love seat with a knife, and he also took a pillow,
a pillow cover, and two cushion covers. The TBI’s serology tests were not available until June and
did not reveal the presence of semen on any of the material tested.

         On April 22, 2004, Agent Wesson interviewed the Defendant. The Defendant stated that he
loved both of his step-daughters and was trying to make their lives better. The Defendant said that
the girls often hugged him and kissed him on the cheek when he would do something nice for them.
He also told the agent that he had never physically punished either girl, although he had used
physical punishment as a threat on many occasions. The Defendant felt that A.B. may have made
her allegations because “she had boys on her mind,” and he said that she had been sneaking boys into
the house. He also said that A.B. may have been jealous of his relationship with A.B.’s mother. The
Defendant asserted that he had never had sex with either of his step-daughters and that he did not
“look at them in a sexual way.”

       Agent Wesson said that, in order to better gather information, he used the tactic of accusing
the Defendant of committing the crime. He told the Defendant that he believed that the Defendant
had raped A.B. and that he believed A.B. was telling the truth. Agent Wesson said that he was
“taken back” by how angry the Defendant became after being accused. At this point in the


                                                 -5-
investigation, the TBI serology report had not yet come back negative, and Agent Wesson told the
Defendant that he had removed physical evidence from the Defendant’s home that he felt would
incriminate the Defendant when it came back from the crime lab. The Defendant became very
agitated with Agent Wesson, which the agent felt was due to the fact that he had not asked the
Defendant how the Defendant’s semen may have ended up on the arm and cushions of the loveseat.
Agent Wesson stated that the Defendant asserted that he had been watching an “[X]-rated movie”
and that he had masturbated and wiped the semen on the arm and cushions of the loveseat. Agent
Wesson then asked the Defendant if he was willing to consent to a DNA test. The Defendant agreed
to submit a blood sample, stating that he wanted to cooperate because he was not guilty of the
accusations.

        Agent Wesson testified that the hospital was a couple of miles away from the courthouse,
where his interview with the Defendant was conducted, and that it was a three or four minute drive.
Agent Wesson and Detective Jean intended to have the Defendant follow them to the hospital, but
they could not locate the Defendant in the courthouse parking lot. They then decided to drive to the
hospital, assuming that the Defendant would be there as he had indicated that he would. However,
the Defendant was not there, and after roughly ten minutes of waiting for the Defendant to show up,
Agent Wesson and Detective Jean left to look for him. They did not locate the Defendant at his
residence and did not see him on the freeway, so they drove back to the hospital but were still unable
to locate him.

        On the third day of the investigation, April 23, 2004, the victim was brought to Our Kids
Clinic, in Nashville, for an examination. After receiving the results of the examination, on April 27,
2004, Agent Wesson obtained an arrest warrant for the Defendant. On May 7, 2004, the arrest
warrant was served in Jackson, Tennessee.

       On cross-examination, Agent Wesson said that the Defendant’s statement at the courthouse
on April 21, 2004, indicated that, when A.B. had asked the Defendant for batteries for the karaoke
machine, the Defendant had asked White where the batteries were, which indicated that White was
awake at the time. The agent also said that Stephanie White remembered hearing A.B. singing on
the karaoke machine. Agent Wesson acknowledged that he told the Defendant that sometimes
people who commit these types of crimes need help, hoping that this would induce a confession, but
he denied ever promising the Defendant any kind of special treatment or deal in exchange for a
confession. Agent Wesson testified that the Defendant did not confess despite his statement
regarding pedophiles needing help.

         Cynthia Bivens, who works in the attendance and payroll department at Cosmolab, testified
that both the Defendant and Stephanie White left work early on April 21, which was the day that
Agent Wesson interviewed White at work. She said that they worked for four hours and fifteen
minutes of their shift. Bivens said that neither of them gave any notice that they would be away, and
neither of them ever reported back for work. She also stated that neither of them came to pick up
their last paycheck.



                                                 -6-
        On cross-examination, Bivens acknowledged that at Cosmolab employees may take advances
on vacation time and that the money that the employee owes the company for the advancement on
vacation days is taken out of future paychecks. She said that the Defendant had taken several
vacation days prior to actually accruing them. Bivens testified that the Defendant’s final paycheck
was for $97.68 and that it was not enough to cover the vacation time he owed Cosmolab. Bivens
agreed that the Defendant owed Cosmolab his entire final paycheck and some additional undisclosed
amount. She admitted that, had the Defendant come back to Cosmolab to pick up his final paycheck,
Cosmolab would not have issued the check because of the money the Defendant owed. On re-direct
examination, Bivens said that White also failed to pick up her final check, and White’s final check
was worth $156.60. On re-cross, Bivens acknowledged that White also owed Cosmolab some
money for an advancement on vacation time.

         Holly Galleon, a pediatric nurse practitioner at Our Kids Clinic, testified that she examined
A.B. on the third day of the investigation, April 23, 2004. She said that A.B. reported digital and
penile penetration of her vagina. Upon examining A.B.’s genitalia, Galleon observed a tear at the
base of A.B.’s hymen, which indicated that there had been some type of penetrating injury to that
part of A.B.’s body. Galleon stated that she had examined A.B. in 1999 at Our Kids Clinic, and that,
at that time, A.B.’s hymen was fully intact.

         Detective Carol Jean, with the Lewisburg Police Department, testified that she was contacted
by a counselor at Lewisburg Middle School about A.B.’s allegations. Detective Jean then
participated in the investigation of the allegations, beginning with an interview of A.B. and further
activities consistent with the testimony of TBI agent Wesson. Detective Jean testified that after the
Defendant failed to appear at the hospital following his statement to Agent Wesson, she eventually
was able to locate the Defendant in Jackson, Tennessee, and she participated in his arrest and return
to Lewisburg.

         The Defendant testified that, at the time of trial, he was forty-three years old. He admitted
that in September of 1998 and February of 2002 he had been convicted of passing a worthless check.
The Defendant offered that his wife was a light sleeper and that he could not get out of bed without
her waking her up. He stated that A.B. and her sister were not supposed to have friends over at the
house while their mother and the Defendant were at work, however, he had caught them allowing
two boys to sneak into the house one day as the Defendant was leaving the house. He said that the
boys admitted that they had snuck into the house on numerous occasions. The Defendant testified
that he grounded the girls for allowing these boys into the house, and he said that the girls did not
like being punished. He described his relationship with A.B. and her sister as a normal relationship
like “any father with their kids.” He said he was shocked to hear A.B. testify that she was scared of
him. He said that he always spoke with and played with the girls, but when they had done something
wrong he punished them. He said he never “put a hand on them, never whipped them,” but he had
grounded them and taken their television privileges away.

        The Defendant testified that he never wavered in asserting his innocence while being
interrogated by Agent Wesson. He also said that Agent Wesson told him that the agent knew that


                                                 -7-
the Defendant had done what he was accused of and that if the Defendant confessed the Defendant
would get a “second chance.” The Defendant testified that Agent Wesson told him, “[a]ll I have to
do is . . . talk to the D.A. and tell him whatever I want to tell him; he’ll believe me.” The Defendant
stated that he told Agent Wesson that he wanted a lawyer and tried to leave but that Agent Wesson
jumped out of his chair and said “you [can] go get . . . a lawyer once you give me your blood,”
referring to a DNA sample. The Defendant said that Agent Wesson “cornered” him, as if Agent
Wesson thought the Defendant was going to try to run away. The Defendant felt that the only way
for him get out of the interrogation was to tell Agent Wesson that he would agree to a blood test, so
he did. The Defendant stated that he and White then drove to the hospital and waited there for four
or five minutes, but they left because they did not trust Agent Wesson. The Defendant testified that,
because Wesson had told the Defendant that the Defendant could not speak to an attorney until he
aive Wesson a sample of his blood, he was afraid he was being “framed.” The Defendant said that
he did not want to submit to a blood sample until he had spoken with a lawyer so that he would
know what was happening with his DNA test.

        The Defendant said that, after leaving the hospital, he and his wife went to Cosmolab to pick
up their paychecks, and everyone at Cosmolab knew about the allegations. Then they drove to
Fayetteville, Tennessee, because the Defendant knew an attorney in Fayetteville named Raymond
Fraley. The Defendant testified that he went to Fraley’s office but that Fraley was in court in
Lewisburg, so he left a message with Fraley’s secretary about the nature of his legal needs. Shortly
thereafter, Fraley contacted the Defendant and spoke with him about the case. Although Fraley said
he would take the case if the Defendant were arrested, the Defendant could not afford Fraley’s fee.


         The Defendant testified that he and his wife went to Jackson, Tennessee, to try to sell what
he could “off of” his 1992 Chevrolet Suburban to obtain money to pay attorney fees. In addition,
the Defendant’s sister lived in Jackson, and the Defendant believed that his sister might help him
financially. The Defendant testified that he and White only planned to stay in Jackson for a couple
of days, but they ended up staying and seeking work because they needed the money. Initially, they
stayed with the Defendant’s sister, then in a motel, but they decided it was more economical to rent
an efficiency apartment and stay for a couple of weeks. The Defendant testified that he and White
knew that White’s mother had custody of A.B. and her sister, so they knew she would take care of
the girls. He said he and his wife always planned on returning to Lewisburg after a couple of weeks
of work. The Defendant stated that he called numerous family members and told them where he and
White were staying. On May 7, he was arrested in the apartment they had rented in Jackson.

         The Defendant testified that, upon being brought back to Lewisburg, he submitted to a
voluntary DNA test. The Defendant said that, at the time that he gave the DNA sample, no one had
informed him that the TBI tests on the loveseat fabric had come back negative for human fluids. He
testified that nothing improper between A.B. and him ever took place.

       On cross-examination, the Defendant agreed that the TBI tests were not available until June
9, 2004, and the Defendant gave his DNA sample on May 10th or 11th, thus, the State did not yet


                                                 -8-
know whether there was human fluid on the loveseat fabric when the Defendant submitted his DNA
sample. He agreed that, in spite of the fact that Agent Wesson had not placed the Defendant under
arrest, the agent had read the Defendant his rights and had the Defendant read and sign a waiver of
rights form. The Defendant acknowledged that he understood the rights that Agent Wesson had
articulated. The Defendant testified that, although the interrogation took place in the courthouse, a
public building, Agent Wesson raised his voice when he accused the Defendant of being guilty of
the accusations leveled against him. The Defendant denied raising his voice in response to Agent
Wesson.

        The Defendant reiterated that he told Agent Wesson that he wanted an attorney and said that
Detective Jean and Miller were present in the room when he made his request. The Defendant also
acknowledged that neither he nor White actually worked while they were in Jackson, and the
Suburban did not have any for sale sign on it when the Defendant was arrested. The Defendant
stated that there was no for sale sign on the Suburban because he took the sign off of the car at night.
The Defendant denied telling Agent Wesson that he had watched pornographic movies, masturbated,
and wiped his semen on the loveseat. The Defendant said that he was “shocked” to hear Agent
Wesson’s testimony regarding this occurrence.

        Agent Wesson was recalled and stated that the Defendant had never requested an attorney
and that the Defendant had never indicated that he wished to stop speaking with Agent Wesson. The
agent repeated that he never raised his voice with the Defendant but that the Defendant raised his
voice with Agent Wesson. The agent said that he was startled by how aggressive the Defendant
became and that he felt that the Defendant might become physically aggressive. Agent Wesson also
repeated that the Defendant had told him specifically that the Defendant had watched an “[X]-rated”
movie on the loveseat, masturbated, and wiped his semen on the armrest.

         Jessica Miller, who is employed with the Department of Children’s Services, testified that
she never heard Agent Wesson raise his voice. She stated that she was in the interrogation room for
the first ten minutes of the interrogation, and she spent the remainder of the interrogation roughly
two feet from the room with a frosted-glass door between her and the interrogation room. She said
the Defendant was not screaming but that he was “hollering . . . . very, very loud[ly].”

                                             II. Analysis

       On appeal, the Defendant asserts that: (1) insufficient evidence was presented to support his
convictions; and (2) the sentence imposed was excessive and contrary to law.

                                  A. Sufficiency of the Evidence

         The Defendant alleges that there is insufficient evidence in the record to support his rape
convictions, stating that the only proof presented in this case was the testimony of the victim, A.B.
The State counters that the evidence presented regarding each count was sufficient for a rational trier
of fact to find the essential elements of rape beyond a reasonable doubt.


                                                  -9-
        When an accused challenges the sufficiency of the evidence, this Court’s standard of review
is whether, after considering “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); see also Tenn. R. App. P. 13(e); State v. Goodwin,
143 S.W.3d 771, 775 (Tenn. 2004). This rule applies to findings of guilt based upon direct evidence,
circumstantial evidence, or a combination of both direct and circumstantial evidence. State v.
Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999).

        In determining the sufficiency of the evidence, this Court should not re-weigh or re-evaluate
the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Nor may this
Court substitute its inferences for those drawn by the trier of fact from the evidence. State v. Buggs,
995 S.W.2d 102, 105 (Tenn. 1999); Liakas v. State, 286 S.W.2d 856, 859 (Tenn. 1956). Questions
concerning the credibility of the witnesses, the weight and value of the evidence, and all factual
issues raised by the evidence are resolved by the trier of fact. State v. Bland, 958 S.W.2d 651, 659
(Tenn. 1997). This Court must afford the State of Tennessee the strongest legitimate view of the
evidence contained in the record, as well as all reasonable inferences which may be drawn from the
evidence. Goodwin, 143 S.W.3d at 775. Because a verdict of guilt against a defendant removes the
presumption of innocence and raises a presumption of guilt, the convicted criminal defendant bears
the burden of showing that the evidence was legally insufficient to sustain a guilty verdict. See State
v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000).

        Tennessee Code Annotated section 39-13-503(a) (2003), in pertinent part, defines rape as:

        unlawful sexual 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 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 . . . .

Sexual penetration is defined as “sexual intercourse, cunnilingus, fellatio, anal intercourse, or any
other 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.” Tenn. Code Ann. § 39-13-501(7) (2003).

        We begin our analysis by noting that it is well-settled law in Tennessee that “the testimony
of a victim, by itself, is sufficient to support a conviction.” State v. Strickland, 885 S.W.2d 85, 87
(Tenn. Crim. App. 1993); State v. Williams, 623 S.W.2d 118, 120 (Tenn. Crim. App. 1981). In the
case at issue, the evidence of rape consisted almost entirely of testimony by the victim, A.B. She
described five separate incidents of sexual penetration that took place with the Defendant in
sufficient detail, and, when looked at in the light most favorable to the prosecution, her testimony
establishes the essential elements of the crime beyond a reasonable doubt. Specifically, A.B.’s
testimony alleged that she suffered forcible digital and penile penetration by the Defendant during
five separate encounters, all of which caused her great pain and distress. She stated that the


                                                  -10-
Defendant covered her mouth to keep her from yelling, told her that no one would believe her if she
came forward about the rapes, and told her that doing so would break apart her family. Additionally,
A.B. stated that she was forced to douche after the first incident, that she bled as a result of being
raped, and that the Defendant ejaculated during at least one of the encounters. It should be observed
that violent opposition to an unlawful sexual advance is not necessary to establish rape, thus,
although the Defendant maintains that the victim should have said “no” louder, the relative intensity
of the victim’s protest is immaterial. See Tenn. Code Ann. § 39-13-503(a). The testimony of A.B.
was arguably corroborated in part by the testimony of Ms. Galleon of Our Kids Clinic, who opined
that A.B.’s hymen was intact in 1999 and had been torn by a penetrating injury upon being examined
on April 23, 2004.

        During the sentencing hearing, the trial court noted that A.B. “was a very persuasive witness.
She was telling us the truth during [the] trial. I have absolutely no doubt about it.” As stated above,
questions of witness credibility and weight and value of evidence are to be determined by the trier
of fact, and in this case A.B.’s testimony, as highlighted by the trial court, was credible. The
Defendant is not entitled to relief on this issue.

                                            B. Sentencing

         The Defendant next asserts that his sentence is excessive and contrary to law. He specifically
contends that the trial court erred when it imposed a sentence of eleven years on each count of rape
and then ordered that the sentences run consecutively. The State maintains that the Defendant’s
fifty-five year sentence was proper.

         When a defendant challenges the length and manner of service of a sentence, it is the duty
of this court to conduct a de novo review on the record with a presumption that “the determinations
made by the court from which the appeal is taken are correct.” Tenn. Code Ann. § 40-35-401(d)
(2003). This presumption is “‘conditioned upon the affirmative showing in the record that the trial
court considered the sentencing principles and all relevant facts and circumstances.’” State v. Ross,
49 S.W.3d 833, 847 (Tenn. 2001) (quoting State v. Pettus, 986 S.W.2d 540, 543 (Tenn. 1999)); see
also State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The presumption does not apply to the legal
conclusions reached by the trial court in sentencing a defendant or to the determinations made by the
trial court that are predicated upon uncontroverted facts. State v. Dean, 76 S.W.3d 352, 377 (Tenn.
Crim. App. 2001); State v. Butler, 900 S.W.2d 305, 311 (Tenn. Crim. App. 1994); State v. Smith,
891 S.W.2d 922, 929 (Tenn. Crim. App. 1994). Because our review of the record in this case reveals
that the trial court considered the sentencing principles and all relevant facts and circumstances, the
aforementioned “presumption of correctness” is applicable.

         In conducting a de novo review of a sentence, we must consider: (a) any evidence received
at the trial and/or sentencing hearing; (b) the pre-sentence report; © the principles of sentencing; (d)
the arguments of counsel relative to sentencing alternatives; (e) the nature and characteristics of the
offense; (f) any mitigating or enhancement factors; (g) any statements made by the defendant on his
or her own behalf; and (h) the defendant’s potential or lack of potential for rehabilitation or


                                                 -11-
treatment. Tenn. Code Ann. § 40-35-210 (2003); State v. Taylor, 63 S.W.3d 400, 411 (Tenn. Crim.
App. 2001). The party challenging a sentence imposed by the trial court has the burden of
establishing that the sentence is erroneous. Tenn. Code Ann. § 40-35-401 (2003), Sentencing
Comm’n Cmts. So long as the sentencing court followed the appropriate statutory procedure and
imposed a lawful sentence after giving due consideration and proper weight to the factors and
principles under law, and so long as the sentencing court’s findings of facts are adequately supported
by the record, then this Court may not modify the sentence, even if actually preferring a different
result. Goodwin, 143 S.W.3d at 783 (citing State v. Pike, 978 S.W.2d 904, 926-27 (Tenn. 1998)).

       Tennessee Code Annotated section 40-35-103(1) (2003) states that:

       Sentences involving confinement should be based on the following considerations:
       (A) Confinement is necessary to protect society by restraining a defendant who has
       a long history of criminal conduct;
       (B) Confinement is necessary to avoid depreciating the seriousness of the offense or
       confinement is particularly suited to provide an effective deterrence to others likely
       to commit similar offenses; or
       (C) Measures less restrictive than confinement have frequently or recently been
       applied unsuccessfully to the defendant . . . .

Additionally, “The potential or lack of potential for the rehabilitation or treatment of the defendant
should be considered in determining the sentence alternative or length of a term to be imposed.”
Tenn. Code Ann. § 40-35-103(5). The trial court may consider enhancement and mitigating factors
when determining a defendant’s sentence. See Tenn. Code Ann. §§ 40-35-113, -114 (2003).

                                     1. Enhancement Factors

        The Defendant contends that the trial court erred in applying and weighing the enhancement
factors used to arrive at a sentence of eleven years for each conviction. The first factor applied by
the trial court was enhancement factor number two, which allows the trial court to adjust a
defendant’s sentence if, “The defendant has a previous history of criminal convictions or criminal
behavior in addition to those necessary to establish the appropriate range . . . .” Tenn. Code Ann.
§ 40-35-114(2). The trial court stated:

       We do have factor number 2 which is the previous history of criminal convictions.
       These are not[,] to say the least[,] the most serious convictions but there are some
       present. There are in 2001, 2000, and 1998 [a] total of six PWC convictions[,] and
       in 2000 we have an assault and then there was no driver[’s] license in ‘95. I don’t
       give the no driver[’s] license any weight.




                                                -12-
The trial court made an affirmative showing in the record that it considered the sentencing principles
and appropriate facts and circumstances. We conclude that the trial court properly applied Tennessee
Code Annotated section 40-35-114(2) when it enhanced the Defendant’s sentence.

        The Defendant also challenges the trial court’s use of enhancement factor number five, which
allows for a greater sentence if the “victim of the offense was particularly vulnerable because of age
or physical or mental disability.” Tenn. Code Ann. § 40-35-114(5). The Defendant asserts that the
victim was not particularly vulnerable, while the State maintains that the victim’s need for resource
classes qualifies her as especially vulnerable.

        A victim’s youth does not necessarily equate with vulnerability. State v. Poole, 945 S.W.2d
93, 96 (Tenn. 1997); State v. Adams, 864 S.W.2d 31, 35 (Tenn. 1993) superseded, in part, by statute
1995 Tenn. Pub. Acts Ch. 302 (S.B. 1758), as recognized in State v. Jackson, 60 S.W.3d 738, 741-
42 (Tenn. 2001). The State is required to proffer evidence in addition to the victim’s age to establish
particular vulnerability; however, that evidence “need not be extensive.” Poole 945 S.W.2d at 97.
Also, a court may consider the natural vulnerabilities attendant to the extreme ends of the aging
spectrum by giving “additional weight . . . to the age of the victim in those cases where a victim is
extremely young or old.” Id.;see State v. Lewis, 44 S.W.3d 501, 505 (Tenn. 2001). The Legislature
has determined that a sentence may be enhanced if “a victim of the offense was particularly
vulnerable because of age or physical or mental disability . . . .” Tenn. Code Ann. § 40-35-114(5).
In Adams, the Tennessee Supreme Court provided a framework for application of this factor:

       [T]he vulnerability enhancement relates more to the natural physical and mental
       limitations of the victim than merely to the victim’s age. . . . The factor can be used
       . . . if the circumstances show that the victim, because of his age or physical or
       mental condition was in fact “particularly vulnerable,” i.e., incapable of resisting,
       summoning help, or testifying against the perpetrator.

Adams, 864 S.W.2d at 35. Although it is not difficult to imagine cases in which the victim’s age,
whether very young or very old, may seem to equate with vulnerability, the Adams Court chose not
to presume such a conclusion in any case. Id. Moreover, because Tennessee Code Annotated
section 40-35-114(5) does not speak to specific ages, but rather to vulnerability, our Supreme Court
could not create a bright-line rule. Thus, the Court concluded that, “The State bears the burden of
proving the victim’s limitations rendering him or her particularly vulnerable.” Adams, 864 S.W.2d
at 35; see also State v. Hayes, 899 S.W.2d 175, 185 (Tenn. Crim. App. 1995).

        Whether a victim is “particularly vulnerable” for purposes of Tennessee Code Annotated
section 40-35-114(5) is “a factual issue to be resolved by the trier of fact on a case by case basis.”
Poole, 945 S.W.2d at 96; Adams, 864 S.W.2d at 35.

       In the case at issue, the trial court applied this factor stating:




                                                  -13-
        The factor . . . to which I give the greatest weight . . . is factor number 5. This was
        a vulnerable victim not only by reason of her age but also by reason of her intellectual
        limitations. She was in resource. You could tell from her testimony that she was
        perhaps not the sharpest knife in the drawer. But she certainly was a very persuasive
        witness. She was telling us the truth during that trial. I have absolutely no doubt
        about it. She was a vulnerable victim and he took advantage of her. That is not
        necessary to be the only offense, therefore I am giving it considerable weight.

A victim’s age or physical condition might make the victim “vulnerable” in a general sense. That
particular vulnerability, however, may play no part in the crime. A vulnerability that is wholly
irrelevant to the crime is not “appropriate for the offense” as required by Tennessee Code Annotated
section 40-35-114. See, e.g., Butler, 900 S.W.2d 305, 313 (Tenn. Crim. App. 1994) (holding
advanced age of victim irrelevant when “weight lifter, football player, or any other person, male or
female, who possessed adequate strength to resist a crime against the person” would have been killed
by a defendant’s reflex gunshot from a distance); State v. Seals, 735 S.W.2d 849, 853-54 (Tenn.
Crim. App. 1987) (holding advanced age of victims irrelevant when crime was theft from victims’s
mailboxes and criminals had no contact with victims themselves; crime would have been no different
had victims been “robust athletes”).

        In the present case, we apply an analogous line of reasoning in determining whether the
victim’s intelligence or learning disabilities played a role in facilitating the crime. In State v. Clabo
905 S.W.2d 197, 206 (Tenn. Crim. App. 1995), this Court held that the fact that the victim suffered
from a learning disability would allow the trial court to apply Tennessee Code Annotated section 40-
35-114(5) to enhance the defendant’s sentence. However, in our view, the mere fact that a youth
suffers from a learning disability or is enrolled in resource classes does not make the victim
especially vulnerable per se without a sufficient articulation in the record of the facts which support
a finding that such a “vulnerability” is relevant to the crime. A learning disability or moderately
below average level of cognitive reasoning does not necessarily fetter a child in the way the
Tennessee Supreme Court described in Poole. Poole, 945 S.W.2d at 96. Again, in order to apply
Tennessee Code Annotated section 40-35-114(5), the victim must be incapable of resisting,
summoning help, or testifying against the perpetrator because of the victim’s age or physical or
mental condition. Adams, 864 S.W.2d at 35.

         In the case at hand, the trial court stated that the victim was in resource classes and “was
perhaps not the sharpest knife in the drawer” but went on to state that “she certainly was a very
persuasive witness.” A.B. was thirteen years old when the first two incidents took place and was
fourteen years old when the final three incidents took place. As such, her age alone cannot be used
to justify an enhanced sentence under Tennessee Code Annotated section 40-35-114(5). There is
nothing in the record to indicate that the victim was in resource classes due to a physical disability
that would keep her from resisting, summoning help, or testifying. Likewise there is nothing in the
record to indicate that she was in resource classes due to an extremely low level of intelligence which
could make it difficult for her to resist, summon help, or testify in court. To the contrary, A.B. was
thoughtful and articulate with her responses, considering the traumatic nature of the incidents she


                                                  -14-
was being asked to recall. To find that she was particularly vulnerable due to her age and below
average level of intelligence without finding facts in the record to support the assertion contravenes
the legislature’s intent as articulated in Adams. Therefore, in our view, the trial court erred in
applying Tennessee Code Annotated section 40-35-114(5) as an enhancement factor in this case.

        The Defendant also contends that the court erred when it applied enhancement factor number
nine, that “[t]he defendant has a previous history of unwillingness to comply with the conditions of
a sentence involving release in the community.” Tenn. Code Ann. § 40-35-114(9). The Defendant
says that this factor was improperly applied because the offenses he was on probation for were
minor. The trial court articulated its reasons for applying factor number nine, stating:

               Factor number 9 I do find to be present and that is unwillingness to cooperate
       with the terms of release into the public. I direct your attention to the two probation
       violations that are at the bottom of [p]age 18 that have been discussed by Ms. Ladner.
       One is violation of probation on which he was placed by the Maury County General
       Sessions [C]ourt. The second is 2002 and 2001 he was placed on - - he violates the
       terms of his probation and which he had been placed by the Lawrence County
       General Sessions [C]ourt. There is a previous history of unwillingness to cooperate
       with terms of release into the public.

        The Defendant contends that the trial court placed too much weight on this factor because
the offenses for which he was on probation were minor offenses. However, our reading of
Tennessee Code Annotated section 40-35-114(9) does not reveal any accounting for the nature of
the offense behind a probation violation. The fact that probation may have been prescribed for less
serious offenses is not at issue. The matter at hand is the Defendant’s previous unwillingness to
comply with the terms of a trial court’s sentence. Accordingly, we find that the Defendant has not
met his burden of proof in establishing that the trial court improperly applied this factor, and the
Defendant is not entitled to relief on this issue.

         The final factor that the Defendant asserts was improperly applied is that, “The defendant
abused a position of public or private trust . . . .” Tenn. Code Ann. § 40-35-114(16). The Defendant
asserts that because he was not the victim’s father, the court improperly applied this factor. The trial
court stated that:

               I find also that factor number 16 in the statute is present. He did abuse a
       private trust. He was the step-parent of this victim. Almost from the day he moved
       in, according to the evidence we heard at trial, he began to abuse that position. There
       were times when he was the only adult with the child. There were times when the
       mother was in the house and was asleep or was otherwise preoccupied. But certainly
       he was the adult responsible for the child at [the] time and he abused that private trust
       repeatedly.




                                                 -15-
         On appeal, the Defendant argues that he was not the Defendant’s father and that the victim’s
mother was responsible for her, thus, factor number sixteen does not apply. We disagree. Although
it is true that the Defendant was not the victim’s father, he was the victim’s stepfather, and he was
responsible for her care. As the trial court noted, the Defendant was often home alone with A.B.,
and at other points he was responsible for A.B.’s care when A.B.’s mother was unavailable. The
Tennessee Supreme Court held that a defendant’s status as “live-in boyfriend” was sufficient to find
an abuse of private trust and thus the application of Tennessee Code Annotated section 40-35-
114(16). Adams, 864 S.W.2d at 34. The Defendant does not cite to any contrary authority and is
not entitled to relief on this issue.

        Although the record does not provide a sufficient factual basis for applying enhancement
factor number five, we agree with the trial court’s imposition of an enhanced sentence based upon
the other three factors applied and the finding by the trial court that no mitigating factors are
applicable. Accordingly, we conclude that there were ample grounds for the court to enhance the
Defendant’s sentence, and we affirm the Defendant’s sentence of eleven years on each count of rape.

                                    2. Consecutive Sentencing

         The Defendant asserts that the trial court erred when it ordered the Defendant’s sentences to
run consecutively. The State maintains that the trial court adequately articulated the facts that
supported consecutive sentencing and that ordering the sentences to run consecutively was within
the trial court’s discretion. We agree with the State.

       Consecutive sentencing is governed by Tennessee Code Annotated section 40-35-115 (2003),
which states in pertinent part:

       The court may order sentences to run consecutively if the court finds by a
       preponderance of the evidence that: . . . . The defendant is convicted of two (2) or
       more statutory offenses involving sexual abuse of a minor with consideration of the
       aggravating circumstances arising from the relationship between the defendant and
       victim or victims, the time span of defendant’s undetected sexual activity, the nature
       and scope of the sexual acts and the extent of the residual, physical and mental
       damage to the victim or victims . . . .

The trial court has discretion to order consecutive sentencing if it finds that one or more of the
required statutory criteria exist. State v. Black, 924 S.W.2d 912, 917 (Tenn. Crim. App. 1995).
However, in State v. Taylor, 739 S.W.2d 227, 230 (Tenn. 1987), the Tennessee Supreme Court set
out factors to be considered prior to imposition of a consecutive sentence and warned against
imposing consecutive sentences where the length of the sentence was not related to the severity of
the offense:

               Trial courts should weigh the aggravating circumstances arising from the
       relationship between defendant and the victim or victims, the age of the victim or


                                                -16-
       victims, the time span of defendant’s undetected sexual activity, the nature and scope
       of the sexual acts and the extent of the residual physical and mental damage to the
       victim or victims and determine the appropriate use of consecutive sentencing
       accordingly, bearing in mind the general objectives set forth in Gray. Obviously, no
       rigid formula for application to such cases would be appropriate, but we caution that
       consecutive sentences should not routinely be imposed in sexual abuse cases, or in
       other cases, and that the aggregate maximum of consecutive terms must be
       reasonably related to the severity of the offenses involved. See ABA Standards for
       Criminal Justice, Second Edition § 18-4.5.

        In the case at issue, the trial court noted that Tennessee Code Annotated section 40-35-115(d)
creates a presumption in favor of concurrent sentencing, but stated that this presumption can be
overcome saying:

       Factor numbers which would create exceptions to that presumption or would
       overcome that presumption I find certainly that factor 5 is present. There were more
       than two sexual abuses to this child that occurred. They happened over an extended
       period of time. This is not a situation in which all of these occurred on one day or
       a weekend[,] but rather this poor child endured this for a period of months. I do find
       that the presumption is overcome to this extent.

       We agree with the trial court’s finding that Tennessee Code Annotated section 40-35-
115(b)(5) applies to the case under submission, and we note that upon imposing consecutive
sentences, the trial court made the following finding:

               Let me discuss a couple of reasons I don’t think we have really talked much
       about the psycho-sexual evaluation but I do note that Dr. Lancaster found him to be
       a moderate to high risk for sexual recidivism. He found moderate psychopathy, if I
       am saying that correctly. The reason that I believe that he would continue to do this,
       and there is no potential for rehabilitation, he would re-offend if released into the
       public, is the fact he did this to this girl over an extended period of time. Not just one
       occasion. He didn’t just get drunk on one occasion and do this to her. He did it in
       a very calculated way over a period of months. I am completely convinced that
       whatever day, if and when he gets out of the penitentiary, he will set about to do this
       again. I think he is a very strong risk to repeat.

        In our view, the trial court found, based upon the foregoing, that the aggregate maximum of
consecutive terms in this case was reasonably related to the severity of the offenses involved. We
will not disturb that finding.




                                                 -17-
                                         III. Conclusion

        In accordance with the foregoing reasoning and authorities, the judgments of the trial court
are affirmed.

                                                       _____________________________________
                                                       ROBERT W. WEDEMEYER, JUDGE




                                               -18-
