State of Tennessee v. David Clilon Bates ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs July 21, 2010
STATE OF TENNESSEE v. DAVID CLILON BATES
Direct Appeal from the Circuit Court for Marshall County
No. 08-CR-121 Robert Crigler, Judge
No. M2009-01813-CCA-R3-CD - Filed December 17, 2010
A Marshall County jury convicted the Defendant, David Clilon Bates, of aggravated rape and
assault, and the trial court sentenced him to twenty-two years in the Tennessee Department
of Correction. On appeal, the Defendant contends that the evidence is insufficient to support
his conviction and that the trial court erred when it set the length of his sentence. After a
thorough review of the record and the applicable law, we affirm the trial court’s judgments.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
R OBERT W. W EDEMEYER, J., delivered the opinion of the court, in which J ERRY L. S MITH and
A LAN E. G LENN, JJ., joined.
Michael J. Collins, Shelbyville, Tennessee, for the Appellant, David Clilon Bates.
Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General;
Lacy Wilber, Assistant Attorney General; Chuck Crawford, District Attorney General;
Weakley R. Barnard, Assistant District Attorney General, for the Appellee, State of
Tennessee.
OPINION
I. Facts
This case arises from the Defendant’s rape and assault of the victim and the assault of
the victim’s son, crimes for which a Marshall County grand jury indicted the Defendant for
two counts of aggravated rape and three counts of assault. The following evidence was
presented at the Defendant’s trial: The victim testified that, at the time of these crimes, she
was a waitress and worked third shift, from 11:00 p.m. to 7:00 a.m. The victim and her ex-
husband had a child together and lived together, but the victim’s ex-husband was incarcerated
at the time of these events. The victim said she had “known of” the Defendant for
approximately two years, explaining that she had seen pictures of the Defendant and knew his
name through a mutual acquaintance, but did not personally meet him until a week to ten days
before these crimes occurred.
The victim testified that the Defendant frequently walked up and down the street in
front of her house. On the day the two met, the Defendant was walking by and stopped to
throw a football with her seven-year old son who was playing in the yard. During this
interaction with the victim’s son, the Defendant greeted the victim and they spoke briefly.
The Defendant knew the victim’s name, which she speculated he learned from people in the
neighborhood. The Defendant inquired about the victim’s husband and the victim told the
Defendant her husband was incarcerated for violating his probation sentence.1 The victim
recalled that, during the days leading to the rape and assaults, the Defendant “pop[ped] up”
uninvited at her house five or six times, entering her home on three or four occasions.
The victim testified that, a couple of days after she first spoke with the Defendant,
while she was in bed asleep after arriving home from working a night shift, she heard a knock
at the door. The victim looked out the window but did not recognize the person standing at
her door. Later that day, the Defendant returned and, by the way he was dressed, the victim
recognized him as the same person who knocked on her door earlier that morning. This time,
the victim opened the door, and the Defendant offered her a drink. The victim declined,
stating that she had to work and “didn’t have a habit of drinking during the day.” The
Defendant left, and the victim went back to bed.
The victim recalled that, at some point, the Defendant asked if he could do laundry at
her house because his sister’s hot water heater was broken. The victim agreed, and the
Defendant left and returned with his clothes. The victim was cleaning her house at the time,
and the Defendant sat on the couch while he waited for his laundry. The victim said that she
spoke with the Defendant in between cleaning tasks. When the Defendant’s clothes were
laundered, he left.
Several days later, the victim said she was having difficulty “putting up” a pool in her
yard. The Defendant was walking by, saw the victim struggling with the pool, and helped her.
After helping the victim, the Defendant remained for a few hours, throwing a football with
the victim’s son and her son’s friend. The victim said that she and the Defendant engaged in
“chit chat” that day, but she did not remember the specifics of the conversation other than that
the Defendant asked when her husband would be released from jail. The victim was not sure
1
The victim explained that, even though she and her ex-husband were divorced, she still referred to him
as her husband because they lived together.
of the exact date her husband was to be released, but indicated that her husband would be
home soon.
The victim testified that she never went anywhere with the Defendant and only saw
him at her house. The victim said that she was aware that the Defendant “liked” her but that
she never kissed the Defendant, hugged him, or held his hand. The victim recalled that, the
day before the rape in this case, the Defendant asked if she would “be with him,” and the
victim told him no. The victim said that the Defendant appeared to be “upset” and “mad” at
her response and “got very agitated and angry.” The Defendant yelled at the victim, saying
he “wasn’t dealing with this,” and left the victim’s house. These events concerned the victim,
so she spoke with her next-door neighbor, Kelly Rutledge, about the conversation, but the
victim then justified the Defendant’s anger by reasoning that he “probably got his pride hurt
a little bit.”
The victim testified that, a few days before the rape, she came home from work and
found the Defendant asleep in her bed. The victim explained that, because the locks on her
house were not very good, sliding a credit card between the door and the frame would unlock
the door. The victim recalled that, upon entering her house, she saw feet “sticking out of [her]
bed,” which alarmed her. She instructed her son to take her phone, go outside, and if he heard
her yell, to call 911. The victim proceeded into her bedroom where the Defendant was asleep
on her bed. The victim shook the Defendant’s foot and asked what he was doing in her home.
The Defendant, who appeared intoxicated, mumbled a response. The victim told the
Defendant he needed to leave immediately, and the Defendant sat up on the side of the bed.
The victim again told the Defendant to leave, further stating that, if he did not, she would call
the police. The Defendant seemed irritated that she woke him but left her house.
The victim recounted the events of the day leading up to the rape. The victim was in
the backyard with her son and his friend when the Defendant and Chris Jackson, a man whom
she had never met, approached her. The Defendant remained for a few minutes talking with
the victim before he left with Jackson. An hour or two later, the victim was sitting on the
front porch watching her son and his friend play with water guns. The Defendant and Jackson
returned and talked with the victim while she sat outside. Later that evening, Kelly Rutledge,
the victim’s next-door neighbor, invited the victim to drink beer on Rutledge’s back porch,
and the victim agreed. The victim did not recall exactly what time it was, but said that there
was “still some daylight,” when she went to Rutledge’s home. The victim testified she drank
one-and-a-half beers, and Rutledge drank two while the victim’s son was still playing in the
victim’s backyard. While sitting on the porch, one of the victim’s friends called and asked
if her son, Austin Green, could spend the night at the victim’s house, and the victim agreed.
When Green arrived, he joined the victim’s son playing in the backyard. The Defendant and
Jackson appeared again and sat down on the back steps of the victim’s house. Rutledge
invited the Defendant and Jackson to come and sit on her porch, but they declined, remaining
on the victim’s back steps, smoking marijuana. At some point Rutledge’s daughter, Elizabeth,
arrived home and joined Rutledge and the victim on the porch.
At approximately 10:00 p.m. or 11:00 p.m., the victim’s son said that he was tired so
the victim took the boys into the house, and the Defendant and Jackson, without invitation,
followed the victim into her house. The victim prepared the boys for bed and, as she walked
back into the living room, she saw that the Defendant and Jackson were seated and had “some
kind of pink juice with liquor in it.” The Defendant and Jackson offered the victim some of
the “pink juice,” but she took only a sip because it “tasted really bad.” The victim went into
the kitchen to get a glass of water and, while getting ice, noticed a bottle of vodka in the
freezer. The victim said that the bottle of vodka did not belong to her and was not in the
freezer earlier that day.
At some point, someone knocked on the front door, and the Defendant said, “[C]ome
in,” and opened the front door to allow another of the Defendant’s friends, Daniel Ewing, to
come in. The victim testified that she did not know Ewing but had seen him before. A female
accompanied Ewing, but she did not enter the house, having left her red car parked on the
street.
The victim testified that Ewing entered her home and started talking with the
Defendant. The three men turned on the radio and were drinking. All three men were
smoking marijuana, and, at some point, Ewing took a Xanax. The back door of the victim’s
house remained open, and the Defendant, Jackson, and Ewing went outside a couple of times.
The men were getting “kind of loud” outside so the victim asked them to “keep it down.” The
victim recalled that she was never alone in the house with any one of the men because when
one of them went outside, all of three would go. The victim testified that she did not have
anything more to drink that night and did not take any drugs, although she had taken
prescribed pain medication earlier that day. The victim acknowledged that she had pain
medication, Lortab, in the house for pain from a recent shoulder surgery.
At one point in the evening, while the three men sat around her kitchen table, the
victim observed Ewing crush pills, and Ewing and the Defendant “snort” the crushed pills.
The victim told them, “[T]hat ain’t happening” and described the men as “really getting out
of hand.” The victim told the Defendant, Jackson, and Ewing they needed to leave and then
went back to her bathroom.
When the victim exited her bathroom she saw Ewing and Jackson in her bedroom
going through her purse. The victim testified that she was very upset and ordered the men out
of her house. When she turned around the Defendant was “right in [her] face,” and he
grabbed her and pushed her into the bedroom. The victim described the Defendant’s actions
as painful. Jackson dropped what he was holding and ran past the Defendant and the victim
out of the house. The victim did not see Jackson again. The Defendant threw the victim onto
the bed and told Ewing to put a pillow over the victim’s face, which Ewing did. The victim
recalled that she was trying to “kick and fight,” was screaming, and “real scared.” The victim
said that the Defendant was holding her stomach area while Ewing held her arms. She
recalled that someone had a knee on her chest, but she did not know whose knee it was. The
victim said she was wearing shorts and a t-shirt and that the Defendant pulled her shorts and
underwear to the side and penetrated her vagina with his penis. The victim estimated that this
occurred within a few minutes of when Ewing and the Defendant began forcibly holding her.
Because the victim was screaming loudly during this time, she did not know whether the
Defendant said anything as he raped her.
The victim testified that, at some point, the Defendant told Ewing to leave, and Ewing
did so but returned and said, “[C]ome on, let’s go.” The Defendant slammed the bedroom
door shut in response. The victim managed to kick the Defendant with her feet and free
herself. She opened the bedroom door, and her son and Green were standing outside the door
having heard “every bit” of what occurred in the bedroom. The victim instructed the boys to
“run and get help,” and she ran for the front door, but the Defendant grabbed the victim by
her hair before she could get outside of the house. The Defendant then slammed the victim’s
head against the door facing. The victim recalled that both of the boys were screaming and
crying. When the victim’s son attempted to stop the Defendant from hurting her, the
Defendant grabbed the boy by his arms, picked him up, and threw him “across the living
room.” The Defendant then resumed hitting the victim. The victim recalled telling the
Defendant, “Please, just let me go. I won’t tell anybody. I won’t say nothing, just please let
us go.”
During this interaction, the victim’s cell phone rang, and the Defendant answered it,
but the caller had already disconnected the phone call. The victim said the Defendant then
placed a call and told the person they had the wrong number.
The victim recalled that when the Defendant walked back toward the bedroom, the
victim opened the front door, “grabbed the kids,” and fled. The victim told the boys to go to
Rutledge’s house. The Defendant came out of the house and began hitting the victim again.
The victim saw Rutledge come out on her front porch and heard Rutledge talking with police
dispatch on her phone. The Defendant ran toward Rutledge, but Rutledge went into her house
and closed the door. The Defendant, once again, returned to the victim and continued hitting
her. Shortly thereafter, the victim heard sirens, and the Defendant fled. The victim testified
she was transported to the hospital by an ambulance.
The victim testified that she sustained a dislocated pelvis and fractured tailbone as a
result of this incident. She also recalled that the Defendant hit her in the face, head, and
stomach and that she sustained a cut from being hit by the Defendant. The victim made a
positive identification at the police department of the Defendant, Jackson, and Ewing. The
victim said that neither the Defendant nor Ewing asked if they could have sex with her and
that she did not consent to have sex with either man.
On cross-examination, the victim agreed that she neither divulged to police nor
testified at the preliminary hearing that the Defendant smoked marijuana on her back steps
in front of her son. The victim also agreed that she testified at the preliminary hearing that
she began drinking beer with Rutledge at 10:00 p.m. but that, at trial, she testified it was
closer to 8:00 p.m. and “getting dark.” The victim explained that she did not keep exact track
of the time that evening but maintained that, because it was “getting dark” when she joined
Rutledge on her porch, it could not have been 10:00 p.m.
The victim’s son, Andrew Watson, who was eight years old at the time of trial, testified
that, the night of these crimes, his friend Austin Green was at his house. The victim’s son
recalled that in the evening his mother was sitting on Rutledge’s porch and drinking “Bud
Light” while he and Green played in his backyard. The victim’s son got tired, so they went
into their house and went to bed. Watson testified that Green woke him up, and Watson heard
his mother screaming. Watson got out of bed and began banging on her closed bedroom door.
Watson recalled his mother “finally got out of the [bed]room” and crawled to the front door
to try to open it, but the Defendant punched the victim’s hand every time she reached for the
door. Watson testified that his mother was screaming and crying, so he punched the
Defendant. The Defendant then picked Watson up and threw him onto the couch. Watson
said this hurt “a little” and scared him. Watson said that the Defendant continued to hit the
victim but that he and Green were finally able to leave the house and run next door to
Rutledge’s house and ask her to call the police as his mother had instructed. Watson recalled
that, when his mother finally made it out of her house, the Defendant followed her and ran up
to Rutledge’s house, but Rutledge slammed the door shut. Watson heard the Defendant say
to his mother, “I am going to hurt you.”
Watson testified that, one day, he and his mother arrived home and found the
Defendant in his parents bed and the victim told the Defendant to leave or she would call the
police and the Defendant left.
Austin Green, Watson’s friend who was eight years old at the time of trial, testified that
he spent the night at Watson’s house and woke up to some noise. He then woke Watson up,
and they went into the living room where the Defendant and victim were fighting. Green said
that the victim was by the door trying to get out. Green recalled that he and Watson went next
door to call the police as the victim instructed but that the victim could not leave because the
Defendant kept hitting her. Green testified that he was scared.
Green testified that the Defendant removed the battery from the victim’s cell phone and
then threw the phone at the victim, saying “call the cops.” Green explained that, because the
Defendant had taken out the battery, the Defendant knew the victim could not call anyone.
On cross-examination, Green testified that Watson did not go to his mother’s room that
night. Green said that, when Green and Watson entered the living room, the Defendant told
them to go back to Watson’s room.
Kelly Rutledge, the victim’s next door neighbor, testified that she invited the victim
to sit on her porch and drink a beer around 7:00 p.m. or 8:00 p.m. in the evening. She said
they each had two Bud Lights as they sat outside and talked. Rutledge said that the Defendant
was sitting on the victim’s back steps and that Jackson later joined him. Rutledge told the
victim that the men could join them, but they declined. Rutledge said that she did not see the
Defendant and Jackson smoking marijuana but that she smelled it. At around 10:00 p.m., the
victim’s son and his friend were getting tired, so the victim took them inside her house, and
Rutledge went into her house to get ready to go to bed.
Rutledge testified that she got into bed but could hear her daughter on the porch
talking, so she sent her daughter a text message telling her to quiet down. Rutledge fell asleep
and then woke up to “a lot of noise.” Rutledge went to the back door, and her daughter was
sitting out on the porch talking with Jackson. Rutledge again asked her daughter to keep it
quiet so that she could sleep, and she returned to bed. A few minutes later, Rutledge heard
“a lot of yelling, screaming, loud talking” so she called her daughter on her cell phone and
threatened to call the police if her daughter did not tell Jackson to leave. Rutledge’s daughter
said the Defendant and “them” were “just messing around.” Rutledge told her daughter she
had no business outside with three men and instructed her to come inside, and her daughter
complied.
Later that night, the sound of a door slamming awakened Rutledge once again. She
got up and looked out the bedroom window, but, seeing nothing, she returned to bed.
Rutledge continued to hear loud noises and to look outside but saw nothing. At around 2:00
a.m., Rutledge again heard noises and, when she looked out the window, noticed the victim’s
living room light on and the Defendant standing with both of his hands on the victim’s front
door. Rutledge called the victim’s cell phone “to make sure she was okay,” but no one
answered. Rutledge had never seen the Defendant at the victim’s house that late at night and
recalled feeling “uneasy,” but she returned to her bed. Rutledge’s cell phone rang, and the
cell phone displayed the victim as the caller. Rutledge answered the phone, and a male voice
asked, “[W]ho is this?” Rutledge told him her name, and the male replied, “I have the wrong
damn number” and ended the phone call. Rutledge said the male voice on the phone sounded
like the Defendant’s voice, and he sounded “very irritated.”
A few minutes later, Rutledge heard screaming and the victim’s son’s voice. Rutledge
jumped out of bed and ran to the front door and saw the victim’s son and Green running
through the yard toward her house. The victim’s son was screaming for help, and when
Rutledge asked him what was wrong, he replied, “Mama.” Rutledge turned and saw the
victim on her hands and knees crawling in the yard. Rutledge told the boys to come into the
house, and she heard the victim say, “[C]all 911.” Rutledge dialed 911 on her cell phone and
saw the Defendant running through the yard saying, “[N]obody is calling 911, bitch, you hit
me first.” The Defendant ran toward Rutledge’s porch, and Rutledge went inside her home
and shut the door without the boys because the Defendant was in between the boys and
Rutledge. After Rutledge made contact with 911 and requested help, she heard the boys
banging at the front door, and she let them inside her house. Rutledge and her daughter went
out into the yard and helped the victim into their home. Rutledge recalled that the victim
could not walk because she was “shaking so bad.” Rutledge observed signs on the victim’s
body that the victim had been beaten. Rutledge described the victim as “in pain” and
“scared.” The victim told Rutledge what had occurred between the victim and the Defendant.
Within a few minutes, police arrived, and the victim was transported to the hospital in
an ambulance. Rutledge did not know where the Defendant was at this point, not having seen
the Defendant again after she shut her front door as he was coming toward her porch steps.
On cross-examination, Rutledge testified that, prior to that evening, she had seen the
Defendant at the victim’s house “maybe” five or six times over the previous two or three
weeks. The latest Rutledge had ever known the Defendant to be at the victim’s home
previous to that night was one time around 10:00 p.m. Rutledge testified that she had only
spoken with the Defendant a “couple” of times before this night but that she recognized his
voice on her cell phone.
Scott Braden, a Lewisburg Police Department detective, testified that he went to the
victim’s residence the morning of the incident to show the victim a photographic line-up.
Braden recalled that, when he showed the victim the photographic line-up that included a
picture of the Defendant, she immediately “started crying and became very emotional and
upset.” The victim positively identified the Defendant, Jackson, and Ewing.
Kevin Patin, a Lewisburg Police Department police officer, went to a residence where
police believed the victim’s attackers were located. Officer Patin met Detective McClain at
the residence, and, while McClain knocked on the front door, Officer Patin walked around the
house toward the back door where he saw a pit bull dog chained in the back yard, but did not
see any person. Officer Patin testified that he heard Detective McClain talking with someone
at the front door, so he returned to the front of the house. While Detective McClain was
talking with Ewing, Officer Patin heard the dog chain rattle in the backyard, so Officer Patin
walked back around the house where, this time, he saw the Defendant crouched down at the
crawl space area of the house. Officer Patin escorted the Defendant to the front of the house
and instructed him to sit down.
Jimmy Oliver, a Lewisburg Police Department detective, testified that he was present
during the Defendant’s interview. Upon initial questioning, the Defendant denied being at
the victim’s house, having sexual contact with the victim, or assaulting the victim. During
the interview, the Defendant became “upset” and “angry,” and his story changed several
times. When presented with some of the evidence from the case, the Defendant agreed he had
been at the victim’s house, but still denied any sexual contact with the victim. Detective
Oliver recalled the Defendant saying that “he had three or four women that all he would have
to do is make a phone call. He could have sex whenever he wanted it. Why would he have
to rape her or have sex with her.” The Defendant continued to deny he had assaulted the
victim saying that ”he hadn’t touched that girl” and that “[h]e didn’t hit women.” After
awhile, the Defendant acknowledged that, while he had not hit the victim, he had pushed her
out of his way, causing the victim injury. The Defendant explained to the detectives that he
did so because the victim attacked him first. Finally, the Defendant changed his story as to
his sexual contact with the victim. The Defendant told detectives that he had been “seeing”
the victim for a week or two and that they had engaged in consensual sex that night.
Santiago McClain, a Lewisburg Police Department detective, testified that he reported
to the emergency room and met with the victim. The Detective attempted to interview the
victim, but she was crying and shaking, so the Detective waited to give the victim time to
calm down before interviewing her. The victim provided the Detective with the names of the
Defendant, Jackson, and Ewing as suspects. After getting information from the victim,
Detective McClain proceeded to the victim’s house, which he found in “disarray.” The
detective photographed a cell phone and a cell phone battery that were lying on the living
room floor. The detective found another cell phone, which was “torn apart,” at the entrance
to the victim’s bedroom and a bottle of vodka in a trash can.
Detective McClain testified that, later that afternoon, he located Ewing and the
Defendant and asked them to come to the police station for interviews. At the police station,
Detective McClain, along with Detective Oliver, participated in the Defendant’s interview.
Before the detectives told the Defendant the name of the victim or where the crime occurred,
the Defendant volunteered that he had not been to the victim’s house the previous evening
or ever. The Defendant claimed he had witnesses to prove he had spent the night with his
girlfriend. As the interview progressed the Defendant’s story changed. The Defendant
admitted he was at the victim’s house the previous evening, but denied the two had any sexual
contact. Later in the interview, the Defendant admitted having consensual sex with the
victim. Detective McClain recalled that the Defendant said he and the victim had an
argument, and the victim slapped the Defendant in the face, which prompted him to hit the
victim. The Defendant told the detectives that the argument was about “some pills” taken
from the victim. The Defendant also admitted that he held the victim’s arm and threw her on
the floor during this argument. Based upon these statements Detective McClain drafted a
written statement for the Defendant. The Defendant reviewed the statement and signed it.
Larry G. Kass, an emergency room nurse supervisor, testified that he was working the
morning that the victim came to the emergency room for treatment. Kass reviewed the
medical records from the victim’s visit and agreed that the victim was unable to sign the
consent for treatment due to her “emotional state.” Kass administered the nurse assessment
of the victim, which is a combination of nurse observations and questions to the victim. Kass
read the “chief complaint” portion of the form: “Assault, sexually and physically hit in head.
Note abrasions and swelling to left upper forehead and left brow. Pain to abdomen; possibly
hit in the stomach. And vaginal pain. States positive vaginal penetration.” The assessment
indicated that the victim was currently prescribed ibuprofen and Lortab and that her medical
history consisted of right shoulder pain. Kass noted in the “emotional status” portion of the
form his observation that the victim was anxious and crying, though alert and “oriented to
time, place and person.” Kass also recalled that the victim displayed “some fear” and
embarrassment. Kass related that the victim indicated that there were two assailants, one who
held her down while the other raped her. The victim described exiting the bathroom, entering
the bedroom, and being hit in the head by her assailant. The victim further described to the
nurse that the assailant entered her vagina from the leg of her shorts without actually
removing her clothing. Kass testified that a rape kit was performed and the victim’s medical
records indicated no vaginal tears but tenderness. Kass stated that an absence of vaginal tears
is not unusual in rape cases.
Dr. Kenneth Jackson Phelps, Jr. testified as an expert witness in the field of medicine.
Dr. Phelps said that he was the victim’s primary care physician and that, due to shoulder
surgery and pain, the victim was prescribed Lortab. In late June, the victim saw Dr. Phelps
for a follow-up visit from an emergency room visit. The victim told Dr. Phelps that the
emergency room visit was because she had been raped and severely beaten. The victim
complained of pain to her tail bone and shoulder. The doctor found that the victim had some
restriction in her forearm and tenderness of her coccyx. Dr. Phelps testified that bruising to
the coccyx could be caused by being beaten, “thrown around,” or kicked. Dr. Phelps ordered
an x-ray report of the shoulder and coccyx, and the report indicated there was not a fracture
of the coccyx bone. Dr. Phelps testified that his initial read of the x-rays was that there was
a fracture to the coccyx bone, so he sent the x-rays for confirmation and it was that report
which indicated there was not a fracture. Dr. Phelps acknowledged that, based on the wording
in the victim’s records, a lay person might understand it to indicate she had a fractured coccyx.
Dr. Phelps testified that he referred the victim to a psychiatrist for panic attacks she was
experiencing after the rape. Based upon his experience, Dr. Phelps found the victim’s
demeanor consistent with that of a rape victim.
Dr. Phelps reviewed the notes of the doctor who administered the victim’s pelvic exam
and who was deceased by the time of trial. The notes indicated vaginal tenderness but no
tearing or bleeding. Dr. Phelps testified that no tears or bleeding to the vaginal wall is not
inconsistent with a person who has been raped.
On cross-examination, Dr. Phelps testified that during his twenty-five year career he
had worked with approximately ten to fifteen rape cases. Dr. Phelps agreed that, based upon
this experience, he could not say what proportion of rape victims suffer vaginal tearing.
Lauralee Staples, a forensic scientist with the Tennessee Bureau of Investigation,
testified as an expert witness in the field of serology and DNA testing. Staples testified that
the victim’s bra, shorts, t-shirt, underwear, vaginal swab, blood sample, and hair sample were
submitted for testing. Staples found semen on the crotch area of the victim’s underwear but
no sperm. Staples also received samples of blood from the Defendant and Ewing. Based
upon these blood samples, Staples excluded Ewing as a contributor of the semen but could
not exclude the Defendant as a contributor. Staples testified that she did not have a full
profile on the samples and the information she had was consistent with the Defendant.
Because she only had a partial profile from the semen sample, she could not definitively
“match” the semen from the victim’s underwear to the Defendant.
Thomas Hardin testified that, at the time of these incidents, he had known the
Defendant “a couple of months” and that he did not know the victim until the Defendant
began living with her in March or June. Hardin said that the victim and Defendant came to
where he was living, the same month “this stuff went down,” and the two acted like a couple.
Hardin said that he did not see the two together any other time but did see the Defendant
exiting the victim’s house “a number of times.”
On cross-examination, Hardin testified that he learned of this case when his stepson,
Daniel Ewing, became involved. Hardin acknowledged that he would be testifying at Ewing’s
trial, which was to commence a few weeks after the Defendant’s trial. Hardin agreed that,
when Detective McClain attempted to interview him, he told the detective, “whatever
[Hardin’s wife] says is what it is.” Hardin explained that he said that because he and his wife
were both present for the event the detective was asking about.
Loran Franks testified that, at the time of trial, she was the Defendant’s girlfriend.
Franks said that, the previous summer, the Defendant and victim lived together. Franks said
she was at the victim’s house one time while the Defendant lived with the victim and that,
while she was there, the Defendant and victim “acted like they were a happy couple.” Franks
said, other than the Defendant’s phone, she did not see any of the Defendant’s belongings at
the victim’s house.
Gesica Brown testified that she was friends with the Defendant and Ewing. Brown met
the Defendant through her friend Keona Roseman, with whom the Defendant lived for about
a month during the same summer as the criminal incidents in this case occurred. Brown said
that she met the victim when the Defendant took Brown to the victim’s house. Brown
recalled that, for about two weeks, she went to the victim’s house daily, and the victim and
the Defendant interacted with one another like a couple.
Keona Roseman, Ewing’s cousin, testified that she met the Defendant while he was
living in a Halfway House almost two years earlier. Roseman described her relationship with
the Defendant as “friends” and acknowledged that he lived with her for a period of time.
Roseman recalled seeing the Defendant and victim together at Roseman’s cousin’s house.
Roseman had never met the victim before and asked the victim about her relationship with the
Defendant. The victim denied a romantic relationship with the Defendant, but Roseman
testified that the two acted “love-y dove-y.” Roseman said that, on a later date, she saw the
Defendant and the victim standing on the victim’s front porch as she was walking to her
cousin’s house.
Racine Tiers testified that she dated Daniel Ewing “off and on” for seven years and that
Ewing and the Defendant were “something like best friends.” Tiers recalled that
approximately two months before this criminal incident, Tiers saw the Defendant and victim
together at Ewing’s cousin’s house. Tiers said that, when asked, the victim denied a
relationship with the Defendant saying, “[W]e’re just friends.”
On the night of this criminal incident, Tiers went with Ewing to the victim’s house.
When she arrived at around “[two] something” in the morning, the Defendant and the victim
were in the front yard arguing. The Defendant asked Tiers to “take him away” and, as he was
getting in the car, the victim pushed the Defendant and “said something to him.” The
Defendant got into Tiers’s car, and Tiers drove down the street to meet Ewing. The victim
remained in the yard yelling but then went inside the house with Ewing and the Defendant
following her into the house. When Tiers saw police arrive, she assumed a neighbor had
called police during the Defendant and victim’s argument in the front yard. Tiers went into
the victim’s house and told everyone to “calm it down” because the police had arrived.
Tiers recalled that, after she entered the victim’s house, they all “just sat and talked.”
Ewing and Jackson went into the kitchen, although Tiers could not see what they were doing,
while the Defendant and victim continued to argue. Tiers said that the Defendant began
looking for a hat and went “in the back” to search for it. Several minutes later, the victim and
the Defendant returned, and the victim sat down in the living room while the Defendant went
into the kitchen to talk with Ewing and Jackson. The victim told the Defendant and Jackson
they could not spend the night because she did not want her son to “wake up to another man
in her bed,” and the Defendant became upset and prepared to leave. As he was leaving the
victim said “something else to him,” and he came back in the house. Ewing stopped the
Defendant and pushed him out of the house telling the Defendant, “it wasn’t right.” Tiers
testified that she and Jackson then carried Ewing, who was intoxicated, out of the house, and
the Defendant went into the house. Tiers, Jackson, and Ewing went to Ewing’s grandmother’s
house for the rest of the night.
On cross-examination, Tiers testified that the Defendant told her that he hit the victim.
The Defendant testified that he met the victim several months before this incident
through a friend who knew the victim’s husband. Approximately a month after he met the
victim, the Defendant was walking through the victim’s neighborhood, and the victim stopped
the Defendant and began talking with him. The following month, the Defendant again saw
the victim as he was walking through the victim’s neighborhood. The victim was mowing her
lawn, and the Defendant stopped and talked with the victim. It was during this conversation
that the Defendant inquired as to where the victim’s husband was. The victim told the
Defendant that her husband was incarcerated.
The Defendant recalled that, the following day, he and Ewing were walking to the
Dollar General Market to meet Ewing’s girlfriend when the victim offered to give the two
men a ride. She drove them to Dollar General Market and Ewing got out of the truck to meet
his girlfriend, while the Defendant remained in the truck and talked with the victim. During
this conversation, the victim asked the Defendant if the Defendant would come to her house
that afternoon and help set up a swimming pool in her backyard. The Defendant agreed, and
the victim gave him her cell phone number before he exited her truck. After Ewing and the
Defendant finished at the Dollar General Market, they walked back through the victim’s
neighborhood where the victim was out in her yard, and the Defendant spoke with the victim
again.
Later that afternoon, the Defendant returned to the victim’s house and “hung out a little
while.” The Defendant said the victim fixed dinner for him, they watched television, and they
“just talked.” He described their relationship at this point as “a friendship thing.” The
Defendant said that, after about two or three weeks of “hanging out,” the Defendant and
victim engaged in a sexual relationship. The Defendant estimated this was approximately a
month before the criminal charge in this case. The Defendant said that, after that first sexual
encounter, he stayed over at the victim’s house for two weeks straight, and the victim “got a
full-time babysitter” for her son. The Defendant explained that the victim’s son was around
some of the time but that the victim did not want her son to see her touching another man
while the victim’s father was in jail.
The Defendant recalled that as his relationship with the victim grew they began doing
things together in public as a couple such as shopping at Wal-Mart and the grocery store. On
one occasion, the Defendant took the victim to a friend’s house. The Defendant said that he
often took Ewing and Derrick Smith over to the victim’s house. The first of June, the
Defendant began moving his belongings into the victim’s home. By June 19, the Defendant
had removed his belongings from the victim’s house because the victim’s husband was going
to be coming home. The Defendant said that the victim asked the Defendant to take his
belongings out of her house out of respect for her husband but that she was going to “have a
talk with [her husband].”
On the day of the criminal incident, the Defendant recalled that the victim contacted
him to ask that he come over that evening because her husband was not going to be released
from jail. The Defendant agreed and arrived at the victim’s house between 5:00 p.m. and 6:00
p.m. Initially, only the Defendant, the victim, her son, and Green were at the victim’s home,
but Jackson joined them after dark. The Defendant recalled that he talked with Jackson in the
backyard while the victim sat on Rutledge’s back deck drinking beer. The Defendant said he
was invited to join Rutledge and the victim, but he declined, remaining in the victim’s
backyard. Around 9:00 p.m., Ewing arrived at the victim’s house, and the Defendant and
Ewing began “play fighting.” Because both Ewing and the Defendant had been drinking, the
“play fighting” turned more serious and “got a little out of hand,” but the two men soon
calmed down.
At around 10:00 p.m. Ewing left to meet his girlfriend, and the victim took her son and
Green inside her house to put them to bed. After putting the boys to bed, the victim came
back outside and talked with the Defendant and Jackson. The Defendant recalled that Jackson
went next door to talk with Elizabeth and, about thirty minutes later, Ewing returned with
Tiers.
The Defendant testified that, after Ewing returned, he wanted to “go do something,”
but the victim wanted the Defendant to stay with her, so they began to argue in the front yard.
The Defendant described the argument as getting “pretty heated” and said the victim pushed
him. The Defendant said that he almost pushed her back but that he stopped himself and
turned away. Ultimately, the two were able to resolve their disagreement, but the Defendant
believed someone called the police due to this argument in the front yard. The Defendant,
Ewing, and the victim went in the victim’s house, and Tiers soon came inside and told the
men police were outside. The Defendant said that he did not actually see police officers but
that Tiers told the Defendant the police had been called.
After Tiers joined them, the Defendant turned on music, and Ewing, Tiers, Jackson,
the Defendant, and victim sat around talking. Ewing and Jackson went to the kitchen to get
more vodka while the Defendant and the victim were “making out.” The Defendant recalled
that the victim told the Defendant to come with her and led him to the back part of the house.
The victim reached for the bedroom door but it was locked, so she took the Defendant into
the bathroom. The Defendant said that the two began engaging in sexual intercourse with the
Defendant seated on the toilet. The toilet began to rock so they moved to the bedroom. The
Defendant tried to open the bedroom door but it was locked so he hit the door and said, “Hey,
man.” The Defendant heard the door unlock and when he opened the door, he saw Jackson
and Ewing in the bedroom. Jackson and Ewing left the bedroom, and the Defendant and
victim continued having sex. After a few minutes, the Defendant started feeling sick so he
left the bedroom and went into the kitchen where Jackson and Ewing were crushing pills on
the table. The Defendant asked Ewing not to crush up the pills on the victim’s table and
Ewing complied.
The Defendant estimated that it was 2:00 a.m. when Ewing, Jackson, and Tiers
prepared to leave. The victim said that she did not want anyone staying in the house that night
and the Defendant asked the victim if he could stay and she said no. The Defendant went to
get something out of the dryer, and the victim met him there and told him that he could stay
the night but that he needed to leave before her son and Green woke up, and the Defendant
agreed. The Defendant said that he then went into the living room to say good-bye to Jackson,
Ewing, and Tiers, but they were already leaving. About five minutes after they left, the victim
came out of the bedroom “hollering,” “He stole my pills!” The Defendant told the victim to
“chill out” and tried to make a phone call to Ewing, but either the Defendant’s or Ewing’s cell
phone lost power. The Defendant continued to try to calm the victim, but she insisted that the
Defendant was involved in the theft of her medication. The Defendant said that the argument
became “heated” and that the victim slapped him after he called her the “‘B’ word.” The
Defendant walked away, but the victim came after him and pushed him. When she did this,
the Defendant pushed her back and the victim hit the Defendant again. The Defendant
testified that it was at this point in the argument that “[he] assaulted the lady.”
The Defendant testified that he hit the victim “no more than five times” in the face with
his fist. After hitting her, the Defendant bent down to help the victim get up, but she pushed
him away. The Defendant said that he tried to apologize, but the victim still refused his help.
The Defendant then realized that the victim’s son and Green were standing behind the
Defendant and had witnessed the Defendant hitting the victim. The Defendant told the two
boys to go back to the bedroom. The Defendant said that the victim’s son was crying. The
Defendant bent down to pick the victim’s son up, and the victim’s son pushed the Defendant,
so the Defendant set him back down on the floor. The victim’s son ran to the victim.
The Defendant testified that he began looking for his hat, the victim opened the front
door, and the two boys ran outside. The Defendant exited the house through the back door
and walked a short distance when he decided to return to make sure the victim was okay. The
Defendant said that he was angry at himself “because [he] was wrong” for hitting the victim.
The Defendant walked to the front of the house where he saw the victim in the yard and the
two boys knocking on Rutledge’s front door. The Defendant went up to Rutledge’s door
about the time she opened it, and, when she saw the Defendant, she closed the door.
The Defendant told the victim he had returned to check on her, and she told him to “get
away” from her. The two began cursing at one another, and the Defendant tossed the victim’s
house key, which she had previously given to him, at her, and the key hit the victim above her
eye. The Defendant acknowledged that he “tossed” the house key “pretty hard” but explained
that he “wasn’t aware of [his] strength” and was “real intoxicated” at the time. The Defendant
left the victim’s house and walked to Ewing’s grandmother’s house where the Defendant and
Ewing “almost got in a fight.” The Defendant than stated that, “everything died down” and
that he went into the house and went to sleep.
The Defendant recalled that, the next morning, Jada Hurt, one of the Defendant’s
friends, woke him up between 9:30 a.m. and 10:30 a.m. The Defendant dressed and then went
outside to play with a pit bull that was kept in the backyard when he saw police officers
standing in the front yard. The Defendant testified that he “had an idea” why the police
officers were at the house but said he waited in the back yard to be asked to come to the front
yard and questioned. The Defendant explained that, when the officer approached him in the
back yard, he was kneeling down trying to untangle the dog’s chain from some brush and
stumps in the back yard.
The Defendant testified that he did not rape the victim explaining, “I’m not trying to
sound boastful or nothing, but I didn’t have to. I mean, I had lady friends I could go see.”
On cross-examination the Defendant testified that he answered the victim’s phone the
night of this criminal incident. He explained that both he and the victim had the same phone
so he accidentally answered her phone thinking it was his phone but then realized he had the
wrong phone so told the caller “wrong number” and hung up the phone. The Defendant
denied ever going toward Rutledge’s house, saying that he “had no reason to go” to
Rutledge’s front porch. The Defendant acknowledged that Jada Hurt woke him up to tell him
police were at the front door talking with Ewing, so he got up, dressed, and went out the back
door.
Based upon this evidence, the jury convicted the Defendant of two counts of
aggravated rape and three counts of assault. The trial court merged the two counts of
aggravated rape and merged two of the three assault convictions. The trial court applied
several enhancement factors to the Defendant’s sentence and sentenced him to twenty-two
years for the aggravated rape conviction, a Class A felony, and to eleven months and twenty-
nine days for the assault convictions, Class A misdemeanors. The trial court ordered all
sentences to run concurrently for an effective sentence of twenty-two years in the Tennessee
Department of Correction.
II. Analysis
The Defendant asserts that the evidence is insufficient to sustain his convictions and
that the trial court erred when it set the length of his sentence.
A. Sufficiency of the Evidence
The Defendent asserts the evidence is insufficient to sustain his aggravated rape
conviction based upon the Defendant’s testimony that he engaged in consensual sex with the
victim. As to the Defendant’s assault conviction concerning the victim, he contends that,
because he acted in self-defense, the evidence was insufficient to support an assault
conviction. As to his assault conviction concerning the victim’s son, he argues that his act of
picking the boy up did not amount to an assault. The State counters that sufficient evidence
was presented from which a reasonable juror could conclude that the Defendant committed
aggravated rape and assault.
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 State, “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 Tenn. R. App. P. 13(e), State v.
Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid, 91 S.W.3d 247, 276 (Tenn.
2002)). 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). A conviction may be based entirely on
circumstantial evidence where the facts are “so clearly interwoven and connected that the
finger of guilt is pointed unerringly at the Defendant and the Defendant alone.” State v.
Smith, 868 S.W.2d 561, 569 (Tenn. 1993). The jury decides the weight to be given to
circumstantial evidence, and “[t]he inferences to be drawn from such evidence, and the extent
to which the circumstances are consistent with guilt and inconsistent with innocence, are
questions primarily for the jury.” State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (citations
omitted). 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, as well as 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); Liakas, 286 S.W.2d at 859.
“A guilty verdict by the jury, approved by the trial judge, accredits the testimony of the
witnesses for the State and resolves all conflicts in favor of the theory of the State.” State v.
Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978); State v. Grace, 493 S.W.2d 474, 479 (Tenn.
1973). The Tennessee Supreme Court stated the rationale for this rule:
This well-settled rule rests on a sound foundation. The trial judge and the jury
see the witnesses face to face, hear their testimony and observe their demeanor
on the stand. Thus the trial judge and jury are the primary instrumentality of
justice to determine the weight and credibility to be given to the testimony of
witnesses. In the trial forum alone is there human atmosphere and the totality
of the evidence cannot be reproduced with a written record in this Court.
Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1996) (citing Carroll v. State, 370 S.W.2d 523(Tenn. 1963)). 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 (citing State v. Smith, 24 S.W.3d 274,
279 (Tenn. 2000)). 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. State
v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000).
In this case, the Defendant was convicted of aggravated rape and assault. A conviction
for aggravated rape requires proof beyond a reasonable doubt that the Defendant unlawfully
sexually penetrated the victim and either did so through force and coercion, caused bodily
injury, or was aided or abetted by another person and used force or coercion. See T.C.A. §
39-13-502 (2009). A conviction for assault requires the State to show that the Defendant
“intentionally, knowingly or recklessly” caused bodily injury to the victim or “intentionally,
knowingly” caused the victim “to reasonably fear imminent bodily injury.” T.C.A. § 39-13-
101(a) (2006).
The evidence, considered in the light most favorable to the State, proves that, the night
of the rape, the Defendant was at the victim’s house and was drinking and smoking marijuana
with two of his friends, Ewing and Jackson. The Defendant engaged in “play fighting” with
Ewing which quickly escalated due to their intoxication. The Defendant, Jackson, and Ewing
went into the victim’s house and continued drinking and using drugs. Ewing and Jackson
went into the victim’s bedroom, and, when the victim discovered them and told them to leave,
the Defendant pushed the victim into the room and onto the bed. The Defendant then ordered
Ewing to place a pillow over the victim’s head, and while the two men forcibly held the
victim down, the Defendant sexually penetrated the victim with his penis. Semen was
recovered from the crotch of the victim’s panties and DNA analysis did not exclude the
Defendant as a contributor of the semen. The victim ultimately freed herself and attempted
to flee the house, but the Defendant repeatedly blocked the victim’s exit through the front
door, and he admitted he repeatedly hit the victim with his fist. When the victim’s son
attempted to intervene to protect his mother, the Defendant picked him up and threw him onto
the couch and continued hitting the victim. The victim’s son was scared, and both of the boys
were screaming and crying. The victim finally was able to exit the house, and, unable to stand
due to the assault, she crawled through the front yard. The victim’s neighbors called 911 and
carried the victim into their home until police arrived. The victim was taken by ambulance
to the emergency room and treated for injuries sustained from the rape and assault.
The jury heard the Defendant testify that he engaged in consensual sex with the victim,
however, they also heard the victim describe the course of events that evening as well as the
injuries she was treated for after the incident. As we earlier stated, all questions of credibility
raised are determined by the jury, which is the “primary instrumentality of justice” in matters
of credibility of witness testimony. Bolin, 405 S.W.2d at 771; see also, Bland, 958 S.W.2d
at 659; Liakas, 286 S.W.2d at 859.
The Defendant also contends that the evidence was insufficient as to his assault
convictions because he hit the victim only after she first attacked him and, therefore, he acted
in self-defense. Further, the Defendant contends that he merely picked up the victim’s son
and set him back down when the child made it clear he did not want the Defendant to hold
him, which he contends was insufficient evidence to support an assault conviction. Again,
the jury heard the Defendant’s testimony and clearly did not credit it. It is not within this
Court’s discretion to re-weigh and determine the credibility of witnesses. See Matthews, 805
S.W.2d at 779.
Accordingly, we conclude that the evidence is sufficient to support the convictions
beyond a reasonable doubt. As such, the Defendant is not entitled to relief on this issue.
B. Sentencing
The trial court sentenced the Defendant for aggravated rape as a Range I, Standard
offender, which allows for a sentence range of fifteen to twenty-five years. The trial court
then considered enhancement factors, finding that four applied, and adjusted the Defendant’s
sentence upward to twenty-two years. The Defendant appeals this decision, arguing that the
trial court’s sentence was excessive. The State responds that the trial court properly
considered enhancement factors in determining the Defendant’s sentence
When a defendant challenges the length, range or manner of service of a sentence, this
Court must 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.” T.C.A. § 40-
35-401(d) (2006). As the Sentencing Commission Comments to this section note, the burden
is now on the appealing party to show that the sentencing is improper. T.C.A. § 40-35-401,
Sentencing Comm’n Cmts (2006). This means that if the trial court followed the statutory
sentencing procedure, made findings of facts which are adequately supported in the record,
and gave due consideration to the factors and principles relevant to sentencing under the
Sentencing Act, Tennessee Code Annotated section 40-35-103 (2006), the appellate court may
not disturb the sentence even if a different result was preferred. State v. Ross, 49 S.W.3d 833,
847 (Tenn. 2001). 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 which 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).
In conducting a de novo review of a sentence, we must consider: (1) the evidence, if
any, received at the trial and the sentencing hearing; (2) the presentence report; (3) the
principles of sentencing and arguments as to sentencing alternatives; (4) the nature and
characteristics of the criminal conduct involved; (5) evidence and information offered by the
parties on the mitigating and enhancement factors set out in Tennessee Code Annotated
sections 4-35-113 and -114; (6) any statistical information provided by the administrative
office of the courts as to sentencing practices for similar offenses in Tennessee; and (7) any
statement the defendant made in the defendant’s own behalf about sentencing. See T.C.A. §
40-35-210 (2006); State v. Taylor, 63 S.W.3d 400, 411 (Tenn. Crim. App. 2001). We must
also consider the potential or lack of potential for rehabilitation or treatment of the defendant
in determining the sentence alternative or length of a term to be imposed. T.C.A. § 40-35-103
(2006).
Specific to the review of the trial court’s finding enhancement and mitigating factors,
“the 2005 amendments deleted as grounds for appeal a claim that the trial court did not weigh
properly the enhancement and mitigating factors.” State v. Carter, 254 S.W.3d 335, 344
(Tenn. 2008). The Tennessee Supreme Court continued, “An appellate court is therefore
bound by a trial court’s decision as to the length of the sentence imposed so long as it is
imposed in a manner consistent with the purposes and principles set out in sections -102 and
-103 of the Sentencing Act.” Id. at 346.
The trial court found that there were no applicable mitigating factors, but it found that
the following enhancement factors applied:
(1) The defendant has a previous history of criminal convictions or criminal
behavior, in addition to those necessary to establish the appropriate range;
(8) The defendant, before trial or sentencing, failed to comply with the
conditions of a sentence involving release into the community;
(13) At the time the felony was committed, one (1) of the following
classifications was applicable to the defendant:
....
(C) Released on probation;
T.C.A. § 40-35-114(1), (8), and (13)(C) (2009).
The Defendant does not claim these enhancement factors are not applicable to him, but
claims that “it would have been more appropriate for the Court to enhance only a little past
the fifteen year mark.” In making this argument, the Defendant states that the sentence is
excessive given the relationship between the victim and the Defendant. He also argues that
“insufficient prison facilities to accommodate all persons” justifies a lesser sentence.
The trial court stated that, in making this sentencing decision, it relied upon and
considered: trial and sentencing hearing evidence, the presentence report, the principles of
sentencing, the nature and characteristics of the criminal conduct, and evidence presented as
to enhancement and mitigating factors. The trial court made the following findings as to the
applicable enhancement factors:
I find the defendant has a history both of criminal convictions and
criminal conduct. . . . [T]he defendant has a total of seven prior misdemeanor
convictions. He has no prior felony convictions, as the defense argues. That
is duly noted as well. But he does have misdemeanor convictions, which is a
criminal record. As the State argues . . . the [D]efendant admits drug use.
That is also criminal conduct.
I believe Mr. Grimes testified there were six probation violations of the
[D]efendant’s record. And the Court finds that what appears in the
Presentence Report on Pages 17 and 18, the Court finds those as facts as to the
number of prior probation violations he had and places great weight on that.
And, also, 13C that the [D]efendant was on probation in two different
cases [at the time of these charges].
Based upon these findings as to enhancement factors, the trial court ordered the Defendant
to serve a twenty-two year sentence.
As we earlier noted, this Court cannot review the weight placed on enhancement
factors. Rather, our review is limited to whether the enhancement factors are supported by
the record and appropriately applied. The Defendant is responsible for showing that the trial
court improperly sentenced him, and we conclude that he did not meet this burden. His
assertion that prison resources are limited is accurate, however, it does not satisfy his burden
of showing an improper sentence. Further, the Defendant’s bare assertion that a sentence “a
little past the fifteen year mark” would have been more appropriate does not satisfy his burden
of showing that the trial court’s sentence was improper. Our review of the record reveals that
the trial court appropriately followed sentencing guidelines. The trial court noted the
Defendant’s history of criminal convictions and conduct involving illegal drug use. The
Defendant failed multiple times at previous conditions of a probated sentence and was on
probation in two cases when he committed the crimes at issue.
Based upon the foregoing, we conclude that the trial court appropriately followed
sentencing guidelines, made findings of fact adequately supported by the record, and gave due
consideration to Sentencing Act principles and factors. We, therefore, affirm the judgments
of the trial court.
III. Conclusion
In accordance with the aforementioned reasoning and authorities, we affirm the
judgments of the trial court.
_________________________________
ROBERT W. WEDEMEYER, JUDGE