        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT KNOXVILLE             FILED
                     FEBRUARY SESS ION, 1997        December 1, 1998

                                                Cecil Crowson, Jr.
                                                 Appellate C ourt Clerk
STATE OF TENNESSEE,        )    C.C.A. NO. 03C01-9603-CC-00104
                           )
      Appellee,            )
                           )
                           )    MCMINN COUNTY
VS.                        )
                           )    HON. R. STEVEN BEBB
RAYMOND GRAY,              )    JUDGE
                           )
      Appe llant.          )    (Direct Ap peal - Agg ravated Sexu al
                           )    Battery; Rape of a Child)




FOR THE APPELLANT:              FOR THE APPELLEE:

THOMAS E. KIMBALL               JOHN KNOX WALKUP
110 ½ Washington Avenue, N.E.   Attorney General and Reporter
Athens, TN 37303
                                ROB IN L. HA RRIS
                                Assistant Attorney General
                                450 James Robertson Parkway
                                Nashville, TN 37243

                                JERRY N. ESTES
                                District Attorney General

                                SANDRA DONAGHY
                                Assistant District Attorney
                                P. O. Box 647
                                Athens, TN 37303



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                         OPINION

        A McMinn County Criminal Court jury found Appellant Raymond Gray g uilty

of aggravated sexual battery and rape of a child. Appellant was sentenced as a

Range one standard offender to ten years for the aggravated sexua l battery

conviction and to eighteen years for the rape conviction. In this appeal, Appellant

presents the following issues:



         (1) whether the trial court erred in refusing to sever the
        two cou nts of the in dictme nt;
        (2) whether the evide nce pre sented was su fficient to
        support the verdict of the jury bey ond a re asona ble dou bt;
        (3) wheth er the tr ial cou rt erred in prohibiting the defense
        from calling witness Tommy Buckner; and
        (4) whether the sentence imposed is excessive.


        After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.



                                 I. FACTUAL BACKGROUND




        As accredited by the jury’s verdict, the proof shows that on July 24, 1993

Appellant and Imogene Stansberry sexually assaulted Ms. Stansberry’s niece,

N.B.1 , age twelve. The victim testified that she was sitting in the living room while

Appellant and Ms. Stansberry were watching “dirty movie s.” Appellant and Ms.

Stansberry forced N.B. to watch the movie with them. After the movie ended, N.B.

testified that “they just started, they just, Imogene told me to take off my clothes

and I said no, and so she took off my clothes for me, and then she just started



        1
         Pursuant to the policy of this Court, the minor victim of sexual abuse in this case will be referred
to by her initials rather than her full name.

                                                   -2-
touching me and I told her to stop and she wouldn’t.” While this was occurring,

the Appellant held N.B.’s arm to keep her from escaping. The Appellant then

began to fondle the victim. “[He] used his hands and touch ed m y brea sts an d in

between my leg, and then he used his tongu e and touch ed m y brea sts an d in

between my legs.” Ms. Stansberry held the victim down during the assault by

Appe llant. After the assault, the victim was too frightened to tell anyone what had

happened, because Ms. Stansberry and the Appellant threatened to hurt her

family if she told.



       On July 31, 19 93, Ms. S tansberry telepho ned the victim and told her to

come over or els e she w ould be in trouble. The victim went to Appellant and Ms.

Stans berry’s house becau se she was afraid Ms. Stansberry would hurt her

parents. The victim testified that while she wa s in their residence, M s. Stansberry

held her down and Appellant again licked the victim’s breasts and in between her

legs. According to the victim, during this assault, the Appellant and Ms.

Stansberry were again watching dirty movies about gay men and women.



       Ms. Stansberry testified that the victim asked her ab out se x and h ow it

feels for “a man to be up inside you.” According to Ms. Stansberry, she, the

Appe llant, and N.B. played strip poker and “Fantasy”. During the Fantasy game,

both N.B. and Ms. Stansberry had oral sex with App ellant. Ms. Stansb erry also

testified to touching N.B.’s breasts and admitted that she and Appellant told the

victim not to tell anyone and threatened that “there would be no place that she

could ev er run an d hide.”




                                         -3-
      Ms. Stansberry also testified to a second incident in July, during which she

the Appellant and N.B. watched a movie in which a “bunch of men and women

[were] having sex, and then it’s women having sex together.” Ms. Stansberry

testified that on that occasion she touched N.B.’s breasts and that Appellant

“more or less run his tongu e up an d down the child’s va gina.”



                                II. SEVERANCE OF OFFENSES




      Appellant argues that the trial court erred in denying his motion for a

severance of the offenses invo lved in this case. Count one of the indictment

charged Appellant with aggravated sexual battery of N.B. on July 31, 1993;

Count two charged aggravated sexual battery on July 24, 1993: and Count three

charged rape of a child, N.B., on July 31, 1993.2



      Tennessee Rules of Criminal Procedure Rules 14(b)(1) provides:

(b) Severance of offenses

                  (1) If two or more offenses have been joined or
                  consolidated for trial pursuant to Rule 8(b), the
                  defendant shall h ave a right to severance of the
                  offenses unless the offenses are part of a common
                  scheme or plan an d the evidence of one would have
                  been admissible upon the trial of the others.


      In State v. Hallock, 875 S.W.2d 285, 290 (Tenn. Crim. App. 1993) this

Court held that “common scheme or plan” under Rule 14(b)(1) can be broken into

three subcategories: 1) modis operandi or distinctive signature; 2) continuing plan

or conspiracy; or 3) same transaction or occurrence. In this case, we find

evidence of a distinctive signature. In both incidents, Appellant and Ms.

      2
          Accor ding to the S tate’s brief, the trial judge m erged c ounts tw o and thr ee of the indictm ent.

                                                      -4-
Stansberry forced N.B. to watch pornographic movies and them alternated

holding the child down and sexua lly assaulting her. After each assault, Appellant

and Ms. Stansberry repeated the same threat to N.B., threatening to harm her

family if she revealed their crime.



       As to the secon d prong of 14(b)(1 ), in this record , Appella nt chose not to

put on proof of his defense at the severance hearing . Therefore, upon

Appe llant’s not guilty plea, the State was required to prove both the identity and

the intent o f Appe llant as the pe rpetra tor. Th is burd en up on the State c learly

would make proof of either crime relevant in the State’s case-in-chief upon the

trial of the other. Therefore, the seco nd pro ng of R ule 14(b)(1) was met, and the

severance of offenses was not mandatory. There is no proof of abuse of

discretion in the trial court’s refu sal to gran t a severa nce, th erefor e this iss ue is

without m erit.



                      III. SUFFICIENCY OF THE EVIDENCE




       Appellant alleges that the State’s proof at trial was insufficient to support

the jury’s verdict. When an accused challenges the sufficiency of the convicting

evidence, this Court must review the record to determine if the proof adduced at

the trial is sufficient to support the findings by the trier of fact of guilt beyond a

reaso nable doubt. T .R.A.P . 13 (e). This C ourt doe s not rew eigh or re -evaluate

the evidenc e and w e are req uired to afford the State the strongest legitimate view

of the proo f containe d in the rec ord as w ell as all reas onable and legitim ate

inferences which m ay be dra wn there from. State v. Cabbage, 571 S.W.2d 832,

835 (Ten n. 1978).

                                            -5-
       Appellant argues that Ms. Stansberry’s evidence is tainted by her

“incredibly desperate” plea agreement. However, the weight and credibility of a

witness’ te stimon y are ma tters entrus ted exclus ively to the jury a s triers of fact.

State v. Wright, 836 S.W.2d 130, 134 (Tenn. Crim. App. 19 92); State v. She ffield,

676 S.W.2d 542, 547 (Tenn. 1984). Ms. Stansberry was throughly cross-

examined as to the nature of her plea agreement with the State. The jury was

informed as to any effect this plea agreement might have had on her testimo ny.

Any weight the jury m ay have place d upo n her te stimo ny was entirely within the

province of their role a s trier of fact.



       Appellant further argues that he cannot be convic ted on the ba sis of N .B.’s

testimony, alleging that she was an accomplice and that a conviction cannot

stand on the basis of uncorrobo rated accom plice testimony. Appellant is correct

in his conte ntion that a child who is incapable of consent can still be an

accomplice. See Henley v. State, 489 S.W.2d 53 (Tenn. Crim. App. 1972);

Boulton v. State, 214 Tenn. 94, 377 S.W.2d 936 (Tenn. 1964). However, the

testimony accre dited b y the jury in this tria l is that th is victim did n ot participa te

volunta rily in the crime, therefore she could not have been an accomplice.

Further, an accomplice is “ a person who knowingly, voluntarily and with common

intent with the principle offender unites with him in the commission of the crim e.”

W harton ’s Criminal Evidence (12th Ed.) § 448 at pg.229 The test of whether

someone is an ac com plice is whether that person could be indicted for the same

offense as the princip le. Th e prec eden t cited in Appe llant’s b rief all involved

crimes for whic h the vic tim co uld be found guilty if the victim performed the acts

volunta rily - ie. incest, fellatio. Here, the victim could not be found guilty of raping




                                            -6-
herse lf even if the jury had found that she participated voluntarily, therefore she

could not be an ac com plice in this crime. Accordingly, this issue is without m erit.



                     IV. DISALLOWANCE OF A WITNESS




      Appellant argues that the trial court erred in granting the State’s motion to

disallow the testimony of defense witness T.B. Appellant claimed that T.B., the

father of the victim, would have testified that he had caught N.B. in lies. However,

Appellant failed to make a proffer of testimony regarding N.B.’s alleged lies.

Therefore, this issue ca nnot be reviewed . See State v. Hutchinson, 898 S.W.2d

161, 172 (T enn. 1994 ).



                      V. PROPRIETY OF THE SENTENCE




      Appellant contends that the trial court improperly imposed a sentence of

eighteen years for the rape of a ch ild and ten years for a ggravated se xual battery.

When a defe ndan t com plains of his or her sentence, we must conduct a de novo

review with a presumption of correctness. T.C.A. §40-35-401(d). The burden of

showing that the sentence is improper is upon the appea ling party. T .C.A. § 40-

35-401(d) Senten cing Co mm ission C omm ents. This pre sum ption, h owev er, is

conditioned upon an affirmative showing in the record that the trial court

considered the sentencing principles and all relevant facts and circumstances.

State v. Ashby, 823 S.W .2d 166,169 (Tenn. 199 1).



      The trial court found Appellant’s lack of a prior record to be a mitigating

factor, and found several enhancing factors. The court found that 1) this crime

                                         -7-
was com mitted in such a way th at the p otentia l for bod ily injury to the victim was

great; 2) the defendant abused a position of trust; and 3) this crime involved

exceptional cruelty. Because the trial cour t failed to set out which enhancement

factor applied to which crime, we review Appellant’s sentence de novo. State v.

Ashby, 823 S.W .2d 166 (Te nn. 1991).



                                   A. LENGTH OF SENTENCE

                                          1) Rap e of a C hild




        Appellant challenges the trial court’s finding that this crime was committed

in a manner in which the potential for bodily injury was great. Appellant argues

that this finding was not supported by the evidence and that the trial court found

this factor based upon other crime s unrelate d to any a cts of the d efenda nt. 3

Howeve r, the record supports the finding of this fa ctor. A ccord ing to th e victim ’s

testimony as accredited by the jury, while the Appella nt perform ed the se xual acts

upon the victim she wa s held down by Ms. Stans berry. The situation involved two

adults holdin g dow n and enga ging in sexua l acts with a strugg ling child, a

situation inhere ntly rife with the d anger o f injury. In fact, Ms. Stansberry testified

that at one point A ppellant hurt N.B . while performing a sexual act on her.



        Second Appellant challenges the trial court’s finding that “the use of

multip le actors to acc omp lish the crime of rape of a ch ild is allowing th e victim to

be    treated       with     exceptional        cruelty      during      the    commission           of   the


        3
          The trial court stated: “ I see this case in that the crime was committed under circumstances
under which the potential for bodily injury to a victim was great. I cannot imagine a situation in which two
people are involved with the rape of a child in which the potential for bodily injury is not great. I mean I
keep thinking o f mur dered c hildren an d dead children w ho can not testify aga inst their abu sers, an d so to
me th is is an enh ancing o r aggrav ating facto r.”

                                                     -8-
offense.”Appellant contends that this finding is tantamount to finding that the

youth of the victim and the presence of a co-defendant aggravated the crime of

rape of a child. The enhancement factor of “exceptional cruelty” requires a finding

of cruelty over and a bove that inherently attendant to the crim e. State v. Emb ry,

915 S.W.2d 451 (Tenn. Crim . App. 1 995). In this crime, the victim was subjected

to the cru elty of ha ving un wante d sex a cts pe rform ed up on he r while another

adult watched, she was threatened into watching pornographic movies, and she

and her family threatened if she reported the crime; certainly none of these

undo ubted ly cruel acts upon the victim are intrinsic to the crime of rape of a child.



       Further, though the trial cou rt did not so find, enha nceme nt factor (7),

dealing with the comm ission of the c rime fo r pleas ure or g ratificatio n clea rly

applies to the child rape conviction. Though this enhancement factor cannot

apply to sexual battery, since it is intrinsic to that crime, this factor do es app ly to

rape. State v. Adams, 864 S.W.2d 31 (Tenn. 1993); State v. Hoyt, 928 S.W.2d

935 (Tenn. Crim. App. 1995). Here, the evidence showed that Appellant and h is

girlfriend watched pornographic movies and then fondled and raped N.B. for their

sexual pleasure.



                          2) Aggravated Sexu al Battery




       For the reasons stated above in the disc ussion of enh ancem ent factors for

the rape of a child conviction, enhancement factors involving the potential for

bodily injury, abus e of a pos ition of trust, an d excep tional c ruelty all app ly to

Appellant’s aggravated battery conviction.




                                           -9-
                         B. CONSECUTIVE SENTENCING




         Appellant also challeng es the trial cou rt’s ma ndate that he serve h is

sentences consecutively. The trial judge found that con secutive senten ces were

proper under Tennessee Code Annotated § 40-35-115 (b)(5) on the basis that

defendant was convicted of aggravated sexual battery and rape of a child. The

trial court b ased the im positio n of consec utive se ntenc es up on the Appe llant’s

relationsh ip with the victim a nd the nature and s cope of the s exual a ctivity

involved. Wh ile perh aps th e relatio nship betwe en Ap pellan t and th is victim was

not the close familial relatio nship fou nd in othe r cases w here this fa ctor has

applied, Appellant was a close friend of the victim’s fathe r and wa s marrie d to the

victim’s aunt. There was a familial relationship between Appellant and the victim.

Further, the trial c ourt’s impos ition of consecutive sentences based upon the

nature of Appella nt’s acts was entirely appropriate considering the potential for

injury to which Appellant subjected N.B. and the pain she experienced during the

commission of his crime.



         Howeve r, a finding that T.C.A.§ 40-35-115(b)(5) applies to Appe llant’s case

does not end the inq uiry into the validity of consecu tive senten cing. State v.

Woodcock , 922 S.W .2d 904 (Te nn. Crim. Ap p. 1995). W e further find that

consecu tive sentences are necess ary to protect the public from the defen dant’s

poss ible future crim inal cond uct and that the ag gregate sentence is reas onab ly

related to the seve rity of the des picable o ffenses in volved in th e instant case.

T.C.A. § 40-35-115 Senten cing Co mm ission C omm ents; State v. Wilkerson, 905

S.W.2d 933 (Tenn. 1995); State v. Jernigan, 929 S.W.2d 391(Tenn. Crim. App.

1996).

                                          -10-
    Accordingly, the judgment of the trial court is affirmed.



                              ____________________________________
                              JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
JOSEPH M. TIPTON, JUDGE


___________________________________
THOMAS T. WOODALL, JUDGE




                                     -11-
