             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                               AT JACKSON
                         NOVEMBER SESSION, 1997


                                                              FILED
STATE OF TENNESSEE,    )                                 February 20, 1998
                       )          No. 02C01-9706-CC-00228
    Appellee           )                                 Cecil Crowson, Jr.
                       )          GIBSON COUNTY          Appellate C ourt Clerk
vs.                    )
                       )          Hon. Dick Jerman, Jr., Judge
EDWARD EARL HUDDLESTON,)
                       )          (Rape of a Child)
    Appellant          )



For the Appellant:                For the Appellee:

C. Michael Robbins                John Knox Walkup
3074 East Street                  Attorney General and Reporter
Memphis, TN 38128
                                  Elizabeth T. Ryan
(ON APPEAL)                       Assistant Attorney General
                                  Criminal Justice Division
                                  450 James Robertson Parkway
Tom W. Crider                     Nashville, TN 37243-0493
District Public Defender
107 South Court Square
Trenton, TN 38382                 Clayburn Peeples, Jr.
                                  District Attorney General
(AT TRIAL)                        110 South College Street
                                  Suite 200
                                  Trenton, TN 38382




OPINION FILED:

AFFIRMED



David G. Hayes
Judge
                                              OPINION



        The appellant, Edward Earl Huddleston, appeals his jury conviction for rape

of a child, a class A felony. The trial court sentenced the appellant to the

presumptive sentence of twenty years in the Tennessee Department of Correction.

On appeal, the appellant first contends that the trial court erred in finding the eight

year old victim competent to testify against him. Second, he asserts that the trial

court erred when it failed to find as a mitigating factor that the appellant neither

caused nor threatened to cause the victim serious bodily injury.



        After review, we affirm the judgment of the trial court.




                                            BACKGROUND



            At trial, the State’s evidence established that, at about nine o’clock on the

evening of August 21, 1995, the appellant went to the victim, TC’s, home and asked

her mother if she could play with his daughter. 1 The victim’s mother agreed but

asked the appellant to bring her home at a reasonable hour. According to the

victim’s testimony, the appellant then drove the victim and his daughter to a store

and bought them chips and candy. Afterwards, the appellant took the girls to his

home where they played together for a short time. TC then got in the car with the

appellant to go home. The two drove past her house and parked behind the former

home of the appellant’s mother. W hile in the car, the appellant first said, “Don’t tell

nobody.” He then pulled down the victim’s shorts and panties and inserted his finger

into her vagina. TC told the appellant that he was hurting her. Sometime thereafter,


        1
          As a m atter of po licy, this court do es not na me m inors wh o are victim s of sex ual abus e.
See State v. Schimpf, 782 S.W.2d 186, 188 n.1 (Tenn. Crim. App. 1989). The record reflects that
the victim was seven years old at the time of the instant offense.

                                                    2
the appellant stopped the digital penetration. The victim then pulled up her shorts

and panties. The appellant gave her thirty dollars and told her again not to tell

anyone about what had occurred. He then took the victim home. When she arrived

at her house around eleven that night, her mother noticed that she was walking

“gap-legged” and had money in her hand. She then examined her daughter and

found blood in her panties and on her genitalia. At first, the victim claimed that the

appellant had given her the money for being “nice” to him, but then explained that

the appellant had “messed with her.” The victim’s mother called the police.

Patrolman Ronnie Pearson of the Humboldt Police Department responded to the

call. After speaking with the victim and her mother, he sent the two of them to

Humboldt General Hospital. When TC and her mother arrived at the emergency

room of Humboldt General, the nurse on duty found a small amount of blood on the

outside of the victim’s shorts and in her panties. She also found blood on her

external genitalia and noted some redness to the area. Dr. Robert Stevenson, the

doctor on call at the emergency room that night, examined the victim. He found that

her hymen had been torn and that such a tear could occur from digital penetration of

the vagina. After sending TC and her mother to the emergency room, Patrolman

Pearson went to the appellant’s home where he found him drinking beer and

watching television. The appellant denied any wrongdoing and claimed that he’d

given the victim money to buy some new clothes. Later, when Detective Dennis

Wright questioned the appellant, the appellant denied giving any money at all to the

victim. The defense put on no proof. After a deliberation of fifteen minutes, the jury

returned a verdict of guilty for the crime of rape of a child. At the sentencing

hearing, the trial court found no mitigating or enhancing factors applicable to the

present case and sentenced the appellant to twenty years incarceration in the

Department of Correction.




                                         3
                                        ANALYSIS



       In the appellant’s first issue, he contends that the trial court incorrectly found

the victim competent to testify at trial. Rule 601 of the Tennessee Rules of

Evidence provides that “[e]very person is presumed competent to be a witness”

unless a rule or statute provides otherwise. The question of whether a child victim is

competent to testify rests within the sound discretion of the trial court. Such a

finding will not be overturned absent evidence in the record of abuse of that

discretion. See State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993); State v.

Caughron, 855 S.W.2d 526, 538 (Tenn.), cert. denied, 510 U.S. 979, 114 S.Ct. 475

(1993); State v. Howard, 926 S.W.2d 579 (Tenn. Crim. App. 1996).



       The purpose of determining competency of the witness in child sexual abuse

cases is to allow a victim to testify if it can be determined that the child understands

the necessity of telling the truth while on the witness stand. Ballard, 855 S.W.2d at

560. Prior to trial, the appellant filed a Motion in Limine requesting the court to

determine whether the eight-year-old victim, TC, was competent to testify. The

assistant district attorney, defense counsel, and the trial court asked TC questions

concerning the difference between the truth and a lie and the consequences of

telling a lie. TC stated that it was right to tell the truth, wrong to lie, and if she lied

she would be sent to her room. At the conclusion of the motion hearing, the trial

court specifically found the victim competent to testify. The record supports this

finding. This issue is without merit.



       The appellant also contends that the trial court imposed an excessive

sentence for his conviction. Review, by this court, of the length, range, or manner of

service of a sentence is de novo with a presumption that the determination made by

the trial court is correct. Tenn. Code Ann. § 40-35-401(d) (1990). This presumption

only applies, however, if the record demonstrates that the trial court properly


                                            4
considered relevant sentencing principles. State v. Ashby, 823 S.W.2d 166, 169

(Tenn. 1991). In making our review, this court must consider the evidence heard at

trial and at sentencing, the presentence report, the arguments of counsel, the nature

and characteristics of the offense, any mitigating and enhancement factors, the

appellant’s statements, and the appellant’s potential for rehabilitation. Tenn. Code

Ann. §§ 40-35-102 (1995 Supp.); 40-35-103(5) (1990); 40-35-210(b) (1995 Supp.);

see also State v. Byrd, 861 S.W.2d 377, 379 (Tenn. Crim. App. 1993) (citing Ashby,

923 S.W.2d at 168). The burden is on the appellant to show that the sentence

imposed was improper. Sentencing Commission Comments, Tenn. Code Ann. §

40-35-401(d).



       At the sentencing hearing, the trial court rejected application of mitigating

factor (1), the defendant’s criminal conduct neither caused nor threatened serious

bodily injury. Tenn. Code Ann. § 40-35-113(1) (1990). Accordingly, the appellant

contends that, because of the erroneous rejection of this mitigating factor, his

sentence should be reduced from the presumptive sentence of twenty years

incarceration.



       We are compelled to note that every rape is physically and mentally injurious

to the victim. See State v. Kissinger, 922 S.W.2d 482, 487 (Tenn. 1996). It is

difficult to conceive of any factual situation where the rape of a child would not

threaten serious bodily injury. Notwithstanding this fact, serious bodily injury as

defined by the statute includes an injury that involves “extreme physical pain.”

Tenn. Code Ann. § 39-11-106 (33)(C) (1995 Supp.). The young victim testified that

the appellant hurt her. The doctor at the emergency room testified that her hymen

was torn and observed blood on her external genitalia. We have held that injuries

similar to the victim’s in this case constitute serious bodily injury for the purposes of

the statute. See State v. Dison, No. 03C01-9602-CC-00051(Tenn. Crim. App. at

Knoxville, Mar. 14, 1997), perm. to appeal denied, (Tenn. 1997). Moreover, we


                                          5
have held that serious bodily injury also includes a mental element. Id. Clearly, the

fact that the victim was raped at age seven necessarily includes mental anguish and

suffering. The record supports the trial court’s decision that the mitigating factor is

inapplicable in this case. This issue is without merit.



       In view of our determination that mitigating factor (1) is inapplicable, we find

no error in the trial court’s imposition of the presumptive sentence of twenty years.



       For the foregoing reasons, the judgment of the trial court is affirmed.




                                   ____________________________________
                                   DAVID G. HAYES, Judge



CONCUR:




________________________________
GARY R. WADE, Judge



________________________________
JOE G. RILEY, Judge




                                          6
