             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT JACKSON

                            APRIL 1997 SESSION
                                                    FILED
                                                    November 13, 1997

                                                    Cecil Crowson, Jr.
STATE OF TENNESSEE,            )                    Appellate C ourt Clerk
                               )
             Appellee,         )    No. 02C01-9606-CR-00187
                               )
                               )    Shelby County
v.                             )
                               )    Honorable Bernie Weinman, Judge
                               )
NASSEL BROWN,                  )    (Rape of a Child)
                               )
             Appellant.        )


For the Appellant:                  For the Appellee:

A. C. Wharton, Jr.                  Charles W. Burson
District Public Defender            Attorney General of Tennessee
                                           and
Diane Thackery                      Georgia Blythe Felner
Assistant Public Defender           Assistant Attorney General of Tennessee
201 Poplar Avenue                   450 James Robertson Parkway
Memphis, TN 38103                   Nashville, TN 37243-0493
  (AT TRIAL)
                                    John W. Pierotti, Jr.
Walker Gwinn                        District Attorney General
Assistant Public Defender                   and
201 Poplar Avenue                   Patience R. Branham
Memphis, TN 38103                   Assistant District Attorney General
  (ON APPEAL)                       201 Poplar Avenue
                                    Memphis, TN 38103




OPINION FILED:____________________


AFFIRMED PURSUANT TO RULE 20

Joseph M. Tipton
Judge
                                      OPINION



              The defendant, Nassel Brown, appeals as of right from his conviction for

rape of a child, a Class A felony, in the Shelby County Criminal Court. As a Range I,

standard offender, the defendant received a sentence of fifteen years in the

Department of Correction. In this appeal as of right, he contends that the evidence is

insufficient to support his conviction because the state failed to prove that he

penetrated the victim. We affirm the judgment of the trial court.



              Our standard of review when the sufficiency of the evidence is questioned

on appeal is "whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.

2781, 2789 (1979). This means that we may not reweigh the evidence, but must

presume that the jury has resolved all conflicts in the testimony and drawn all

reasonable inferences from the evidence in favor of the state. See State v. Sheffield,

676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.

1978).



               Rape of a child is the reckless, knowing, or intentional, unlawful sexual

penetration of a victim by the defendant or the defendant by a victim, if such victim is

less than thirteen (13) years of age. See T.C.A. §§ 39-11-302(c) and 39-13-522(a);

“Sexual penetration” includes “any intrusion, however slight, of any part of a person’s

body into the [victim’s] genital or anal openings.” T.C.A. § 39-13-501(7).



              When viewed in the light most favorable to the state, see Cabbage, 571

S.W.2d at 835, the proof at trial established that the defendant entered the room where

the ten-year-old victim was asleep on the couch, removed her panties, and caused the


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victim pain by touching his penis to her vagina. Although the victim’s hymenal tissue

was not torn as a result of the touching, the victim was missing part of her hymenal

tissue. The victim also had fibrous bands on her labia minora and a dark red area on

the left side of her vagina. Expert testimony reflected that these findings are consistent

with something, such as a finger or the head of a penis, having been inserted and

rubbed against the victim over a period of time. A test performed on swabs from the

victim’s vaginal opening revealed the presence of a small number of sperm cells.



             After full consideration of the record, the briefs, and the law governing the

issue presented, we are of the opinion that the evidence is sufficient to support the

defendant’s conviction for rape of a child and that no precedential value would be

derived from the rendering of a full opinion. Therefore we conclude that the judgment

of the trial court should be affirmed pursuant to Rule 20, Tenn Ct. Crim. App. R.




                                                       Joseph M. Tipton, Judge


CONCUR:



David G. Hayes, Judge




William M. Barker, Judge




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