# FILED
September 19, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COU RT OF CR IMINA L A PPEA LS OF TENN ESSEE

AT NA SHVILLE MA Y 1997 SESSION

) STA TE OF TENN ESSEE, ) ) C.C.A. N o. 01C01-9608-C R-00341 Appellee, ) ) David son County V. ) ) Honorab le Seth Norman, Judge ) TYRONE W. VA NLIER, SR. , ) (Rape of a Child--Two Counts) ) Appellant. )

FOR TH E APPEL LANT: FOR THE APPELLEE: Roger K. Smi th Charles W. Burson Attorney at Law Attorney General & Reporter Suite 115 104 W oodmont Boulevard Peter M. Coug hlan Nashvil le, TN 37205 Assistant Att orney Gener al 450 James Roberts on Parkway Nashvil le, TN 37243-0493 Victor S. J ohnson III Distric t Attorney General Lila Statom Assistant D istrict A

ttorney Gener

al Washington Square, Suite 50 0 222-2nd Avenue N orth Nashvil le, TN 37201-1649

OPINION FILE D: ___________________ CONVICTIONS AFFIRMED; RESENTENCING ORDERED AS TO CONSECUTI VE SENTENCE S
PAU L G. SUMM ERS, Judge

O P I N I O N-2- The appe llan t, Tyr one W . Van lier, Sr., wa s con victe d by a ju ry of t wo counts of rape of a chi ld. He was sentenced to twenty-one years for each coun t with the s entences to be ser ved consecut ively . On appeal, the appellant presents threeissues for our review : (1) w hether the ev idence was sufficient to support the jur

y ver dict of guil t beyond a re asonable doubt; ( 2) whether the trial court properl y applied Tenn. Code Ann. §§ 40-3 5-114(5), ( 6), (7), and (9) (Supp. 1993) as enhancement fact ors; and (3) whether th e trial cour t properly

imposed consecutive sentences purs uant to Tenn. Code Ann. § 40-35-115(b) (5) (1990). We af firm the appellant’ s convic tions and remand for resentencing as to the issue of consecutive sentence s.
The appellant and the victim’s mother had a long-term relationship, which included the bi rth of a son. The appel lant, who ha d lived i n the home wit h the victim intermittently for several years, was convicted of raping the victim anally and vagina lly in a single epi sode that occur red in June 1993.
First, the appellant challenges the suf ficiency of the evidence. He contends that the ev idence is in sufficient to show penetration, w hich is one of the elements of the cri me. The state arg ues that there i s ample evi dence that the appellant raped t he victi m anally and vaginal ly. The stat e maintains that the tears in the v ictim’s rectum and vag ina, as we ll as the semen found in both areas, indicate penetration.

Great wei ght is accorded jury verdicts in crimi nal trials . Jury v erdicts accredit the state’s witnesses and resolve all evidentiary conflicts in the state ’s favor. State v . Williams , 657 S.W.2d 405, 410 (Tenn. 1983); State v. Banes , 874 S.W.2d 73, 78 (Tenn. Crim. App. 1993) . On appeal, the state is enti tled to both the strongest legitimate view of the evidence and all reasona ble inferences which may be draw n therefrom. State v. Ca bbage , 571 S.W.2d 832 (Tenn. 1978).-3- Moreover , guilty

verdicts remove the presumption of innocence, enjoyed by defendants at trial , and replace i t with a p resumption of gui lt. State v. Grace , 493 S.W.2d 474 (Tenn. 1973). Appellant s, therefore, car ry the bur den of overcominga presumption of g uilt when appealing ju ry conv ictions. Id.

W hen appellants challenge the sufficiency of the evidence , this Court must determine w hether, after v iewing the evidence in a lig ht most favorabl e to the prosecution , any rati onal trier of fact could have found t he essential el ements of a crime beyon d a reasonable doubt. Jackson v. Virginia , 443 U.S. 307 (1979); Tenn. R. App. P. 13( e); State v. Du ncan , 698 S.W.2d 63 (Tenn. 1985). The weight and credibil ity of a w itness’ test imony are matt ers entrusted exclusiv ely to the jury as the trier

s of fact. State v. Sheffield , 676 S.W .2d 542 (Tenn. 198 4); Byrge v . State , 575 S.W .2d 292 (Tenn. Crim. App . 1978).
Upon listening to the testimony at trial, viewing the witness’ demeanor, and considering the witness’ testimony in light of all the fa cts in the case, the jury chose to accredit the state’s witnesses. Assessing the credib ility of witnesses is the purview

of the jury. State v. Banes , 874 S.W.2d 73, 78 (Tenn. Crim. App. 1993). Accor

dingly , after revi ewing t he evidence i n a light most favorable to the state, we conclude that the record sup ports the appellant’s convictions.
Second, the appell ant challeng es the trial court’s us e of the followi ng four enhancement factors: Tenn. Code Ann. §§ 40-3 5-114(5), ( 6), (7), and (9) (Supp. 1993). The appellan t first arg ues that Tenn. Code An n. § 40-35-114( 5) was improperly

applied to enhance his sentence. This statute st ates: “The defendant treated or all owed a v ictim to be treated with exceptional cruelty during the commission of the offense.” Th e state argues that this facto r applies because the victi m suffered tears to her vaginal and anal areas a nd suffered emotional trauma.-4- The appellant arg ues that in ord er for the enhancement factor of “exceptio nal cruelty

” to apply , something ex tra, over and above the i njuries suf fer ed as a resu lt of the a ttac k, mu st be pres ent. The a ppe llan t cite s two cases in suppor

t of his argument : State v. Ho lland , 860 S. W.2d 53 (Tenn. Crim

. App. 1993) and State v. Davis , 825 S.W.2d 109 (Tenn. Crim. App. 199 1). In Holland , the victim was “beaten and bruised all over her body.” Holland , 860 S.W.2d at 61, n.18. Also, in Davis , the rape v ictim was forced to disr

obe and to be bound; and the defendant ur inated in the v ictim’s mouth. Davis , 825 S.W.2d at 113. The appellant contends that suc h cruelty was not present in this case, and therefore, this

enhancement factor shou ld not have be en applied.
We agree with the appell ant that his sen tence should not h ave been enhanced based upon Tenn. C ode Ann. § 40-35-11 4(5). We do not question the injuries suffered by the victim. However, such injuries are consistent with those flowing fro m the crime its elf. Legally , they do not warrant enhancing the appellant’s sentence un der Tenn. Code Ann. § 40-35-114(5).
Next, the ap pellant chall enges the tri al court’s use of Tenn. Code Ann. § 40-35-114(6) : “The personal injuries i nflicted upon . . . the vict im [were] particular ly great.” The stateargues that the damage to the v ictim’s mental health makes this enha ncement facto r applicable. The appellan t, however, contends that any

damage to the v ictim’s mental health does not r ise to the lev el of a “pa rticularl y great” injur y, citing State v. Jone s , 883 S.W.2d 597 (Tenn. 1994).

In Jones , our

Supreme C ourt

stated t hat t he fol low ing cond iti ons “sati sfy the definition of a ‘p articularl y great ’ injury :” “substant ial risk of death,” “prot racted unconsciousness ,” “extr eme physical pain,” “pr otracted or obv ious dis figu reme nt,”

and “ prot rac

ted l oss or s ubst anti al i mpai rmen t of a func tion of a bodily member, organ, or mental f aculty.” Jones , 883 S.W.2d at 602.-5- The evidence i ndicated that the victim at tended severa l therapy sessions befo re stopp ing them approxim ately eleve n mont hs aft er the of fense . Althou gh there was some testimony about future repercussions to t he victi m, there was no evidence that

her injuri es arose to the criteria as defined by our Supreme Court. Therefore, we ag ree with the appellant that Tenn. Code Ann. § 40- 35-114(6) was improp erly appl ied to enhance his sentence.
Next, the ap pellant chall enges the tri al court’s use of Tenn. Code Ann. § 40-35-114(7) : “The offense invol ved a vi ctim and was committed to gr

atify the defendant’s desire for pleasure or excitement.”

The state maintai ns that the appellant acted t o gratify his desirefor sexual p leasure.
The appellant arg ues that “the state did not prov e or argue t he defendant ’s motive concerning this enhancemen t factor” and that “the trial court did not find that a mot ive for the defendant in committingthe offenses was t o gratify the defendant ’s desire for pleasure or excitement.” In suppo rt of his argument, the appellan t in his brief cites State v. Ki ssinger , 922 S.W.2d 482 (Tenn. 1996) and State v. Harris , 866 S.W .2d 583 (Tenn. Crim. App . 1992).

In Kissinger , our Supreme Co urt considered the issue of w hether an orgas m was s uff icien t pro of t hat a n of fen se was comm itte d to s atis fy a defendant’s desire for pleasure or excitement. The court observ ed:
The essence of factor ( 7) is the l egislati ve determinat ion that thos e who a re mo tivat ed to comm it a cr ime t o grat ify their ow n desire for pl easure or excitement should b e punished more sev

erely than those who are not. The focus is the offender’s mot ive, not theeventual result. . . . That orgasm did or did not occur is simply one factor a court may consider in determining whether the of fender committed the of fense to gratify the off ender’s desire for pleasure or excitement. That an offender experi enced org asm d oes n ot i n and of it sel f prove t he ex ist enceof the factor. Likewise, that orgasm did not occur does not necessa rily negate the fin ding.-6- Kissinger , 922 S.W.2d at 490-91. In Harris , this Cour t observed that “the sentencing court must scrutinize this enhance ment factor very closely before applying it in cases

of rape. Common sensewould dic tate that an enhancement factor which is normally present in a certain type of crime shou ld not carry much weight in and of itself.” Harris , 866 S.W.2d at 588.
The appellant’s ow n testimony r egarding the victi m and how he thoug ht that something might occur the night of the rape support thestate’s arg ument that the appellant

acted to gr

atify his des ire for pleasur e or exci tement. Therefore, we ag ree with the state that Tenn. C ode Ann. § 40-35- 114(7) was properly applied to enhance the appellant’ s sentence.
Finally , the appellant c hallenges th e trial cour t’s use of Tenn. Code Ann. § 40- 35-1 14(9 ): “T he de fen dan t pos sess ed or emp loyed a fir earm , expl osive device or

other deadly

weapon duri ng the commiss ion of the offense.” Dur ing the appellant’s

testimony, he denied using a knife; but the v ictim testi fied that the appellant used a k nife during thecommission of the c rime.
Upon listening to the testimony at trial, viewing the witness’ demeanor, and considering the witness’ testimony in light of all the fa cts in the case, the jury chose to believe the victim. W e, therefore, conclud e that the trial court properly applied Tenn. Code A nn. § 40-35-114( 9) to enhance the a ppellant’s s entence.

Thu s, af ter co nsid erin g the r ange of p unis hme nt of fif teen to twe nty-f ive years for each offe nse, we conclude that the enha ncement facto rs applied in this case warrant the trial court’s assessment of twenty-one years.

Thir d, th e app ella nt ch alle nges the t rial c ourt ’s imp osit ion o f co nsec utive sentences. He argues that his aggregate maximum sente nce is not reasonably related to the severity of the off enses. The state ma intains that the appellan t’s-7- sentence is reasonably related to the severity of the offenses and that consecutive sentencing is warranted to protect the pu blic.
When an ap pell ant c hall eng es t he l eng th, r ang e, or mann er o f ser

vi ce of a sentence, this Court conducts a de novo review

with a pr

esumption that the determinations madeby the tri al court arecorrect. Tenn. Code Ann. § 40- 35- 401 (d) (1 990 ). Howe ver, t his p resu mpt ion is cond itio ned on an aff irma tive indication i n the record t hat the trial court consi dered the sentenci ng princi ples and all relev

ant facts and circumstances. State v. Ash by , 823 S.W.2d 166, 169 (Tenn. 1991).
The appellant rece ived consec utive senten ces pursuant to Tenn. Code Ann. § 40-35-115( b)(5) (1990) which pr ovides that the court may order consecutive sentencing if the app ellant “is convicted of two (2) or more statutory offenses involv ing sex ual abuse of a minor with cons ideration of the ag gravati ng circumstances

arising from the relatio nship betwee n the defendant and the victim . . ..” The state argues that because the v ictim in thi s case was raped vaginal ly and anall y in a si ngle episode, which thestate argues is two offenses, consecutive sentencing under Tenn. Code Ann. § 40-35-115(b) (5) is warranted. Also, the state argues under State v. Wilkerson , 905 S.W .2d 933 (Tenn. 199 5), that the appellant ’s aggregate sentence i s reasonably related to the severity

of the crimes i nvolved.

Under Tenn. Code An n. § 40-35-115( b)(5), cons ecutive se ntencing is not mandatory. As the appellant noted in his br ief, this statut e codifies the decisions i n two Tennessee Supreme Court cases: State v. Tay lor , 739 S.W.2d 227 (Tenn. 1987) and Gray v . State , 538 S.W .2d 391 (Tenn. 197 6). The court in Taylor held “that consecutive sentences sho uld not routinely be imposed in
sexu al abus e cases

. . . a nd that

the ag greg ate max imum of consecu tiveterms must be reasonably related to the severity of the offenses involved.” Taylor ,-8- 739 S.W.2d at 230. The appellant also n otes that in Taylor the trial court sentenced the defendant i n that case to twenty-four years out of a possi ble forty years on each count, to be served consecutively, and the ap pellant in that case was elig ible for parol e after serv ice of thirty percent of his s entence. The appellant in this case received a sentence of twenty-one years out of a possible twenty-five year

s for each offense and was ordered to s erve his sentences consecutively. This

appellant is not eligib le for parole because Tenn. Code Ann. § 39-13-523 (Sup p. 1993) req uires him to s erve the enti re sentence impos ed by the court.

When the trial court sentences a defendant, the judg e must place on the record findings of fa ct that support the decision as to punishment. This procedure appli es to enhancing and mitigati ng factors as well as to concurrent or consecutive sentences for mult iple offenses. Tenn. Cod e Ann. § 40-35-210(f). The court shall place on the reco rd why consecutive sentences are imposed in light of the foreg oing cases and statutes. We respectfully submit that as t o the issue of concurrent or consecu tive sentencing, the trial court did not record such findings. This

Court cannot p roperly review this issue with the r

ecord before us. Therefore, we must

remand for resenten cing as to the consecutive sentencing issue.

We af firm the appellant’ s convic tions. As to consecutive or concurrent sentences, we remand for resente ncing w ith appropri ate findings of fact.-9- ______________________________ PAUL G. S UMMERS, Ju dge
CONCUR:

______________________________ DAVID G. HA YES, Judge

______________________________ JERRY L. SMI TH, Jud ge