### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs J une 5, 2002

STATE OF TENN ESSEE v. JEFFERY CONNOR

Appeal from the Criminal Court for Shelby County No. 00-09169 James C. Beasley, Jr., Judge

No. W2001-02604-CCA-R3-CD - Filed January 8, 2003

A Shelby County

Criminal Court jury convicted the de fendant, Jeffery

Connor, of

aggravated ra

pe,
a Class A felony, and the tria l court sentenced

him as a Range I , violent offender to twenty -four ye ars in confine

ment. The

defenda nt appea ls, claimi ng that t

he evide nce is ins ufficie

nt to suppor

t his conviction and that the trial court impr operly enhanced his sentence. We affirm the judgment of the trial cou rt.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

J OSEPH M. T IPTON , J., delivered the opinion of the court, in which J ERRY L. S MITH and J AMES C URWOOD W ITT , J R ., JJ., joined.

AC Wharton, Jr., Distric t Public Defender; Garland Erguden, A ssistant District Public Defender; and Charles D. Wright, Assistant District Public Defender (at trial), for the a ppellant, Jeffery Connor.

Paul G. Summers, Attorney Gene ral and Reporter; Kathy D. Aslinge r, Assista nt Attorne

y General ; William L. Gib

bons, Distr

ict Attorney Gen eral; and Kevin R. Rardin and Michael S. Davis, Assistant District Attorneys Gene

ral, for the appellee, State of Tennessee

.

OPINION

This case re

lates to th e defendant and h

is two code

fendant s raping

the victim . The vic tim testified that in1999, she was living on Hay nes Street in Memphis with her four children and her boyfriend, Golden Cage. On the night of Dec ember 29 , the victim and Mr. Ca ge had an a rgumen t, and he left their home. About 2:30 a.m. on December 30, the victim decided to call Mr . Cage o n his cellular telephone and find out where he had g one. Because her home did not have a telephone, the victim needed to walk to a Mapco convenience store to use a p ay telephone. As the victim was walking on Park Street

to the stor

e, she ap proached Joseph Jones ’s house a nd saw Mr . Jones, Dur

rell Tate, and the defendant standing in Mr. Jones’s front y ard. The victim knew Mr. Jones b ecause he had dated Vanessa Stennis, t he victim’s friend, but she had never seen Mr. Tate or the defendant before. As the victim walked by the three men, the defendant approached he r and asked

if she had-2-

seen a man riding

a bicy cle down the stree t. The vic tim told him

no and turned to walk away . The defendant grabb ed the victim, threw a coat over her head, and said, “B itch, don’t you say nothing.” Mr. Tate also grabbed the victim and threate ned to kill her if she said any thing. The victim testified that the defendant and

Mr. Tate were wearing

jackets with hoods and that the hoods were pulled over their heads.

The defendant and

Mr. Tate hit the victim and pushed her into a building that was attached to the back of Mr. Jones’s house. The two men took the coat off the victim’s h

ead, an d the vict

im stood in a corner. The victim asked the defendant a nd Mr. T ate to let her go, but Mr. Tate hit the victim in the head with his fists and told her to shut up. The defendant told the victim to take off her pants, that he wanted to look at her body , and that they we re “going to have a long

night.”

The victim

took off her pants, and the defendant told her to stand in front of him and put her headbetwee

n his leg s. The vic tim, who was four feet eleven inches tall and weighed one hundred twenty-five

pounds, did as the defendant instructed. The defendant told Mr. Tate to help him lift the victim. The defendant lifted the victim’s torso and slammed her headfirst onto a table. After hitting the table, the victim holl e red, jumped up, and ran into a wall. She acknowledg ed that after the defendant dropped her, she was in pa in. The de

fendant told the victim to take off her shirt, and when she refused, the defendant wrestled with the victim and told Mr. Tate to hit her. The victim asked the men not to hit her and agreed to take off her clot hes. The defenda nt told her to be nd over a table and while the victim was bent over, the defe ndant raped the victim vaginally. Mr . Tate and Mr. Jones, who had c ome in to th e r oo m, al so ra pe d h er va gi na ll y. The victim stated that all three of the men used c ondoms and that as each man was raping her , the other two watched and laughed. She said that Mr. Tate and Mr. Jones did whatever the defendant said.

After the rape s, the men

made the victim sit in

a corner while they smoked marijuana . The victim asked the men to let her go, but they refused. The victim asked the men why they had done this to her, a

nd the def endant a nd Mr. Ta te told he r that the y w ere “br

inging in the new millennium.” When the sun ca

me up, the

defenda nt told Mr. T ate and Mr. Jone s to cover the windo ws of the r

oom. The defendant also instructed Mr. Tate to stand over the victim and kill her if shelooked up. Mr. Tate said they needed to kill the victim because she knew Mr. Jones. The victim beg ged the men notto kill her

and told them that she

had child

ren at h o me. The defendant told the victim that because she had cooperated with them, she could leave the room at 6:30 a.m. However, he threatened

to kill her and her children if she told anyone a bout the rapes. As the defendant was standing in the doorway of the building, the sunlight was shining on him and the victim could see his face . Eventua

lly, all three of the men left the building, and the victim ran home. She said that she did not leave the building until about 8:00 a.m. and that she hadbeen in the building about five hours.

The victim testified that she took a shower, dressed, and went to Vanessa Stennis’s house. The victim told

Ms. Stennis that Mr. Jones and his friends had ra ped her, and the vi ctim aske d Ms. Stennis to go with her to Mr. Jones’s house. Ms. Stennis told the victim to call the police, but the-3-

victim refused and said she wanted to take car e of the situation herself. Ms. Stennis and the victim went to Mr. Jones’s house. Mr. Jones was not there, and the victim went home.

About 12:00 p.m., Mr. Cage returned home and found the victim cry ing. The victim told him that she had been beaten and raped, a nd Mr. Cage wanted her to call the police. The victim refused, and the next day, Dece

mber 31 , Mr. Cage called the police and re ported the rapes. When the police

came to the vic tim’s home , she took t hem to the

building behin d Mr. Jones’s house. At first, the police told the victim that they could not do any thing about the rapes because she had waited more than thirty

hours to r

eport the m. At some point, though, they arrested Joseph Jones , and the v ictim identified hi m a s o ne of

he r a tt ac ke rs . O n J an ua ry 31, 2000, the victim met with Sergeant M. A. Worthyand viewed

a photograph array . The victim picked out the defendant’s photograph and identified him as the man who had dropped her headfirst onto the table. She said she w as positive that the defendant was one of the men who raped her on December 30. The victim acknowledged having two prior convicti ons for theft of pr operty valued le ss than fiv e hundre d dollars

.

On cross-examination, the victim testified that she had not been drinking on the night of the rapes. She said that although she had turned away fro m the defe ndant and Mr. Tate when they grabb ed her on

Park Stre et, she c ould

tell that the defendant was the man who threw the coa t over her head. The victim acknowledged that she did not scream or strug gle when the defendant and Mr. Tate took her into the bu

ilding. Sh

e said that although it was dark in the building, lit candles were in the room. She acknowledged that she did not

go to a doctor or

get any treatme nt for he r injurie s. The victim als o acknow ledged that on Janu ary

4, 2000, sh

e gave a stateme nt to the police and that in the statement, she did not say that the de fendant talked to her on Park Street before he grabbed her. She denied telling the police that Mr. Cage did not come home until 2:00 a.m. on Dec ember 31

.

Vanessa Stennis testified that she used to date Joseph Jones and that she lived down the street from the victim. About 9:00 a.m. on December 30, 1999, Ms. Stennis was watching television when the victim ca

me to her house. Th

e victim w as cry

ing and told Ms. Stennis that

Joseph Jones and two of his friends had raped her. The victim was ang ry and upset a

nd wantedto kill the three men. Ms. Stennis got a knife and went with the victim to the victim’s house. The victim got a gun from

her home, and she and Ms. Stennis went to Mr. Jones’s house. Mr. Jones was not the re, and t he victim went home. The next da

y, t he victim a

nd Ms. Stennis returned to Mr. Jones’s house, and Mr. Jones answered the door. While Ms. Stennis was talking to Mr. Jones, the victim stabbed Mr. Jones near his mo ut h. Ms . S te nn is ac kn ow le dg ed ha vi ng pr io r c on vi ct io ns fo r t he ft of pr op er ty a nd fo rg er y. On cro ss-examinat ion, she te stified th at the vic tim was af raid to g o to the ra

pe crisiscenter . Ms. Stennis never talked to the police, and the police never questioned her about the victim’s stabbing Mr. Jones.

Golden Cage te stified th at in Dec emb er1999, he and the victim lived together on Hay nes Street. On the nigh t of the crimes, he and the victim had a disagree ment, and he left their home. When he re

turned home

about 10:0 0 a.m . the

next day, the victim was cr

ying and hysterica

l. The victim told Mr. Cage that she had been beaten a nd that Joseph Jones and his friends had raped her. The victim was hurt, and Mr. Cage noticed that she had larg e knots on her h ead. Mr. Cage asked-4-

the victim to call the police, bu t she refused because the men had thre atened to kill her and her children. Mr. Cage said that he called the police on December 30 and that the polic e came t

o their home twice, once to interview the victim and once to take her to the cri me scene . On cros sexamination, Mr. Cage testified that he had no knowledge of the victim having a g un or searching for the thre e men. He

said that after he argued with the victim on the nig ht of the rapes, he was gone from thei r house f or hours, not day s.
Officer Donald Crowe of the Memphis Police Depar tment testified that

he was dispatched to the victim ’s home a

bout 6:00 a .m. on December 31, 1999. When he arrive d, the vic tim told him that she had been raped the day before. Officer Crowe g athered information from th e victim and took her to the crime scene, which was about one and one-half blocks from the victim’s home. The victim led Officer Crowe to a rear she d that was atta ched to the house . Ins ide, he f

ound bee r bottles, potato chip bag s, and ab out fifty used con doms. The victi m told Officer Crowe and his partner that

one of her attackers lived in the home. The officers knocked on the front door, but no one answered. On cross-examination, Officer Crowe testified that he did not take any picture s of the crime scene

or gather any

evidence. The defendant prese nted no proof, an d t he ju ry f ound him guilty of aggravated ra

pe.

I. SUFFICIENCY OF THE EVIDENCE

The defendant claims that the evidence is insufficient to support his conviction. He claim s that no physical proof linked him to the cr ime and t hat the only evi dence against him was the victim’s testimony. The state contends that the e vidence is sufficient. We agree with the state.

Our st andard of review when the defe ndant questions the sufficiency of the evidence o n appeal is “whether, after view ing the evide nce in the light most favorable to the prosecution, any rational trier of

fact could have f

ound the e ssential e

lements of

the crime

bey ond a rea sonable doubt.” Jackson v. Virg inia , 443 U.S. 307, 319, 9 9 S. Ct. 2781, 2789, 61 L . Ed. 2 d 560 ( 1979) . We do not re weigh the evidence but presume that the jury has resolve d all conflicts in the testimony and drawn all reas onable in

ferenc es from th

e eviden ce in favor of the state. See State v. She ffield , 676 S.W.2d 542, 547 ( Tenn. 198 4); Stat e v. Ca bbage , 571 S.W.2d 832, 835 (Tenn. 1978). Questions about witness credibility were

resolved by

the jury. See State v. Bland
, 958 S.W.2d 651, 659 (Tenn. 1997). Moreover, a defendant may be convicted

upon the uncorrob orated t estimony of one witness. See Letner v. Stat

e , 512 S.W.2d 643, 649 (Tenn. Crim. App. 1974); s ee also Shelley v. State , 95 Tenn. 15 2, 155-56, 31 S.W. 492, 493 (1895) (noting that a victim of incest by force is not an accompl ice and t hat a con viction ma

y r est upon su ch victim’ s uncorr oborate d testimony

); State v. McKnight
, 900 S.W.2d 36, 48 (Tenn. Crim. App. 1994) (holding that a “defendant can be convicted of simple rape based solely upon testimony of the victim”).

As charged in the indictment, agg ravated rape occurs when a defendant, while being aide d and abetted by a

t least one other person, unlawfully sexually penetrates the victim and use s force to accompl ish the act. Tenn. Code Ann. § 39-13-502(a)(3)(A). Viewed in the light most fav orable t o the state, the

victim’s te stimony

sufficie ntly sustains the defendant’s conviction for that offense. The-5-

victim testified that

the defendant grabbed her and that h e and M r. Tat e push ed her i nto a b uild ing. Inside, the defenda

nt and Mr. Tate re

peatedl y hit the victim, and the defendant made her take off he r clothes. After the defendant dropped the victim headfir st onto the table, he ordered her to bend over, and he pe netrate d her vag

ina with hi s penis. Th

e victim testifie d that Mr. Tate and Mr. Jones a

lso raped her. Eve ntually , the code

fendant s left the

building and the vi ctim

was able to escape. Vanessa Stennis and Golden Cage testified that they saw the victim cr

yin g and th at the vic tim

told them Mr. Jones and his friends had raped her. The victim stated that her attackers used condoms, and Officer Crowe testified that he saw used condoms in the building where thevictim said the rapes occurred. The weight and value to be given to the evide nce are resolve d by the tri er of fa ct, not thiscourt. Statev. Pappas , 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). We conclude that a rational jury could have found bey ond a

reasona ble doubt t

hat the de fendant , with the h

elp of his codefe

ndants, forcefully raped the victim. The evidence is sufficient to support his conviction.

II. SENTENCING

The defendant contends that his sentence is excessive because the trial court

improperly g ave great weight to enhanc ement fa

ctor (2) , that he w as a lea

der in the commission of

the offense. See Tenn. Code Ann. § 40-35-114(2). In addition, he conte nds that the trial court erroneously applied enhancement

factor (5), tha t he allow ed the victim

to be tr ea te d w it h e xc ep ti on al cr ue lt y, and factor ( 7), that he committed the offense to gratify his desire for pleasure or excitement, to his sentence. See Tenn. Code Ann. § 40-35-114(5), (7). The state contendsthat the tr

ial cour t proper ly sentenced the defendant. We agree with the state.

At the sentencing hearing, the state and the defendant relied on the defendant’s presentence report. Accord

ing to the

report, the then t

wenty -one-y

ear-ol d defend ant was m arried wi th no children. The report shows he did not graduate fr om high school and did

not obtain a GED. The defendant stated that he was in excellent physica l and mental health

and that he did not use alcohol

or illegal drugs. Although the defe ndant claimed to have worked some, the report reflects that the defendant had been unemploy ed since 1996. It al so show s that he has a prior conviction for misdemeanor assault and has a juvenile history of difficulties with the law.

In sentencing thedefendant, the trial court noted that as a Range I offender, the

defendant’s presumptive sentence for his conviction was twenty years, the

midpoint in the range for a Class A fe lo ny. See

Tenn. Code Ann. § 40-35-112(a)(1). The trial court found the following enhancement factors applicable pursuant to Tenn. Code Ann. § 40-35-114: (1) the defe ndant has a previous history of criminal convictions or behavior beyond that necessary

to establish his range; (2) the defendant

was a leader in the commission o f th e offense and the offense involved two (2) or more criminal actors; (5) the defendant allowed the victim to be treated w ith exception al cruelty; (7) the o ffense involved a victim, and the defendant committed it in order to gratify his desire for pleasure or excitement; and (8) the defendant has a previous history of unwillingness to comply with the conditions of a

sentence involving his release into the community . The trial court did not find any applica ble mitigating factors and gave great weight to enhance

ment factors (2), (5), and (7). The trial court gave no weight to factor (8) and sentenced the defendant to twenty -four ye ars.-6-

Appellat e review o f sentencing is de novo on the reco rd with a presumption that the trial court’s determin atio ns are cor rect. Tenn. Code Ann. § 40-35-401(d). As the Sentencing Commission Comments to this section note, the burden is now on the defendant to show that the sentence is imprope

r. This means that if the trial court followed the statutory sentencing procedure, made findings of fac t tha t are adequately supported in the record, and gave due consideration and proper weight to the factors and principles that are relevant

to sentencing under the 1989 Sentencing Act, we may not disturb

the sentence even if a different r esult were preferred. State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

However, “the presumption of corre ctness wh ich acc ompaniesthe trial court’s action is conditioned upon the affirmative showing in the record that the trial court considered the sentencing principles and all relevant facts and circumstanc es.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). In this respect, for the pur pose of meaningful appellate review
,
the trial court must place on the record its reasons for ar riving at the final sentenc ing dec ision, ide ntif y the mitigating and enhancement factors found, state the speci f ic facts supporting each enhanc ement factor found, and articulate how the mitigating and e nhan c ement factors have bee n evaluated an d balanced in determining the sentence. T.C.A. § 40-35-210(f) (1990).

State v. Jones , 883 S.W.2d 597, 599 (Tenn. 1994).

Also, in conducting a de novo review, we must consider (1) the evidence, if any , received at the trial and se ntencing hearing, (2) the pr esentence report, (3) the principles of se ntencing and argume nts as to sentencing alternatives, (4) the nature a nd chara cteristi cs of the

criminal conduct, (5) any mitigating

or statutory

enhancement factors, (6) any statement that the defendant made on his own behalf, and (7) the potential for rehabilitation or trea tment. Tenn. Code Ann. §§ 40-35-102, -103, -21 0; see Ashby , 823 S.W.2d at 168; State v. Moss , 727 S.W.2d 229, 236-37 (Tenn. 1986).

The sentenc e to be imposed by the trial court is pre sumptively the midpoint in the range f or
a Class A fe lo ny u nless there are enhancement fa ctors present. Tenn. Code Ann. § 40-35-210(c). Pr oc ed ur al ly, the trial court is to increase the sentence within the range based upon the existence of enhancement

factor s and, the

n, reduc e the sen

tence a s appropr

iatefor any mitig ating factors. Tenn. Code Ann. § 40-35-210(d)-(e). The weig ht to be afforded an existing factor is left to the trial court’s discretion so long as it complies with the purposes and principles of the 1989 Sentencing Act and its findings are adequately supported by the record. T en n. Code Ann. § 40-35-210, Sentencing Commission Co mments; Moss , 727 S.W.2d a t 237; see Ashby , 823 S.W.2d at 169.

Alth ough the defendant does not contest the trial court’s application of enhancement factor (2) regar din g his being a lea

der, he c laims that

the trial court er red in g iving it g

reat we ight. However, as stated above, as long as the trial court followed the sentencing purposesand princ iples, the weight

to be afforded an existing factor is left to the trial cour t’s discretion. In this case, the-7-

defendant approached the victim and threw a coat ove r her h ead. After he and Mr. Tate took the victim into the building, the defendant ordered the vi ctim to tak e off her clothes. The evidence shows that the d

efenda nt was the

first man to rape the victim and that after the rapes, he told Mr. Tate to stand over the victim and hit her if she looked up. The victim testified that the defendant gaveorders to Mr. Tate and Mr. Jones and that the two men did whatever the defenda nt said. We hold that the trial court’s findings with respect to facto r (2) ar e adequ ately

supported by the record.

Next, the defendant claims that the evidence fails to support the trial court’s application of enhancement factor (5), that he treated the victim with exceptional cruelty during the commission of the offense . The app lication o f facto r (5) re quires “ exception al cruelty, ” which isusually found in cases of abuse or torture. See Statev. Williams , 920 S.W.2d 247, 250 (Tenn. Crim. App. 1995). Our supreme court has held that th e facts must support a finding of “‘exceptional cruelty ’ that ‘demonst rates a culpability d

istinct fr om and app

reciab ly greater than that

incident to’” the crime. Statev. Poole
, 945 S .W.2 d 93, 9 8 (Ten n. 199 7) (qu otin g Jones , 88 3 S .W .2d at 6 01) . In other wo rds, proper application of

this factor requires a finding of crue lty “over and

above” that required for the offense itself. State v. A

rnett , 49 S.W.3d 250, 258 (Tenn. 2001).

The trial court held that

the defe ndant’s f orcing the victim

to place her hea d betwee n his legs and then using a “wrestling move” to drop her headfirst onto a table w arranted a pplication of enhancement

factor (5). W e agree. A ltho ugh the defe ndant cla ims that the

trial cou rt imprope

rly applied enhancement factor (5) bec ause the state presented no evidence that the vic tim suffered any serious or permanent injury as a result of his dropping the victim, the evidence shows that after the defendant dropped the victim, the vi ctim hollered, jumped up, and ran into a wall . The vic tim acknowledged

that she was in pain after the defendant dropped her, a nd Golden Cage testified that he saw large knots on the victim’s head. We conclude that the defendant’s lifting the

victim upside down and drop

ping he r headf irst onto a table goes over and above wha t was required for

aggravated rape as charged in the indictment and supp o rts the trial court’s application of this enhancement factor.

Fi na ll y, the defendant claims that thetrial court improperly a pplied enhancement factor (7), that the defendant raped the

victim to gratify his desire for pleasure or excitement. In this case , the trial court ruled that factor (7) applied because the defendant stated af ter the crimes that he raped the victim in order to bring in the new millennium.

Ini ti al ly, we note that factor (7) is not an essential element of a ggravated rape

and may be considered

as an appropriate e nhancem ent factor. State v. A dams , 864 S.W.2d 31, 34-35 (Tenn. 1993). That said, we agree with the trial cour t that the defendant’s statement about bringing in the

new millennium supports the trial court’s applying this enhancement factor. In addition, we believe the defenda

nt’s state ment to the

victim tha

t he wanted to look at her body also ser ves as additional evidence that he raped the victim to gratify his desire for pleasure or excitement. We conclude that the evidence does not preponderate ag ainst the trial court’s applying e nhancement factor (7), and we hold that the defendant has failed to demonstrate that his sentence is excessive.-8-

Based on the foregoingand the r ecord a s a whole , we aff

irm the jud

gment of the trial court.

___________________________________ JOSEPH M. TIPTON, JUDGE