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

Briefs S eptem

ber 25, 200 2
STATE OF TENNESSEE v. JAMES M. POWERS
Appeal from the Criminal Court for Campbell County No. 10354 E. Shayne Sexton, Judge

No. E2001-02363-CCA-R3-CD October 23, 2002

The De fe nd an t, Ja me s M . P ow er s, ap pe al s a s o f r ig ht fr om hi s c on vi ct io ns by a jury of four cou nts of rape of a

child, a Class A felony. Af ter a sentencing hearing, the trial c ourt imposed a sentence of twenty y ears on each of the four counts and orde red that three of

the se nt en ce s r un co ns ec ut iv el y, for an effective se

ntence o f sixty

ye ars to be

served in the TennesseeDepartment of Correction. The Defendant

argues two issues on appeal: (1) that the evidenc e pres ented at trial was insuf ficient t o support his four convictions of child rape, and (2) that the trial court e rred by imposing

consecutive sentenc es. We affirm the Defendant’s convictions. We revers e the trial court’s order that the sentences be served consecut ively and rema nd for the entry

of an order reflecting c oncurrent sentenc es. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court Affirmed in Part; Reversed in Part; Rem

anded

D AV ID H. W ELLES , J., delivered the opinion of the court, in which J OSEPH M. T IPTON and A LAN E. G LENN , JJ., joined.

Charles Herman, Assistant Public Defender, Jacksboro, Tennessee, for t he a ppellant , James M. Powers.

Paul G. Summers, Attorney Gene ral and Reporter; Thomas E. Williams, II I, Assistant Attorney Genera l; William Paul P

hillips, Dis trict Atto

rney Genera l; and Michael O. Ripley, A ssistantDistrict Attorney Gene

ral, for the appellee, State of Tennessee

. OPINION

The Defendant, James M. Powers, was convicted by a jury of four counts of rape of a child. Following a sentencing hearing, the Defendant received a sentenc e of twenty y ears as a Range I standardoffende

r for ea ch of the four cou nts. The trial court ordered that three of the se ntences be served consecutively, f

or an effective senten ce of s ixty y ears. Th e Defe ndant app eals as o f right ,1 W e will identify the minor victim in this case by his initials.

2 The Defen dant was indict ed for a fi fth count of child rape arisi ng from this conduct, but the tri al court dismiss ed this c ount u pon motio n by the De fenda nt at the clo se of the State’s p roo f.
-2- asserting that the evidence was insufficient to support his four convictions of child rape and that the trial court erred by

ordering three of the sentence s to be served consecutively

. We af firm the Defendant’s convicti ons. We re verse the trial c ourt’s de

terminat ion that t he sent ences should be served consecutively

and remand for the entry of an order consistent with this opinion.

In August o f 1999, eleven-y ear-ol d A.M. 1 , the victim in this case, resided in a small mobilehomeco mm un it y in Ca mp be ll Co un ty, Tenness ee, with h is mother, grand

mother, a unt, and brother. The Defend ant also li ved in the community

at that time , very

close to th

e home in which A.M. and his family lived. The De fendant and A.M.’s mother are fir st cousins

. A.M. ofte n play ed with his cousins, who were close to his age and who lived in the Defendant ’s mobile-home. It was not unusual for A.M. to spend time in the Defendant’s residence, play ing with his cousins and watching movies. A.M. testi fied tha t on one oc casion, h

e was in th

e Defe ndant’ s residen ce, wre stling with his cousins a

nd the Defendant . Althoug h his cousins eventually left to do other things, A.M. did not notice their de p arture, and he continued to wrestle with the Defe ndant. During the course of the wrestl in g, the Defendant touched A.M.’s penis. A.M. testified that the Defe ndant “touched me down there and then I

told him to stop and put my foot in his stomach and I pushed and he let go.” A.M. didnot t ell hi s mot her abo ut th is epi sode b ecause he tho ught h e “did somet hing wro ng” and was “scared” that he would be taken aw ay from his mother. 2

A.M. testified that “about a week later,” the Def endant touched h im ag ain. He was at the Defendant’s resid ence wi th hi s cous ins wa tchin g a movie. The cousins le

ft at some point, and

A.M.
was alone with the Defendant on the couch w atching the movie. While they were watching the movie, the Defendant

“scoote d over” f

rom the op

posite side

of the co uch. A.M. then “scooted over just a little bit mo re” away

from the Defendant. The Defenda nt again moved closer to A.M. The Defendant

then put his hands down A.M.’s pants, took out A.M.’s penis, and performed fellatio on him. A.M. testi fied tha

t, without saying any

thing, the Defendant “put his hands down my pants and pulled it out. He t

ook it out of

my p ants and t

hen he pu t his mouth on

me.” A.M . “[t]old him

t o stop,” and when A.M. “got up and left,” the Defendant stopped touching him. A.M. then went home, but he did not tell anyone about wha t had happened because he “wa s scared.”

A.M. te st if

ie d t ha t “ tw o o r t hr ee da ys later,” A.M. was planning to go to a fr iend’s house with
one of his relatives named Scottie. The Def endant w as going

to give t hem a rid e. However, Sco ttie ultimately

did not go along. The Defendant proc eeded to take A.M. to the friend’s house. I nstead of going directly

to the house, the

Defend ant took A .M. to a de ad-end r oad. A.M. testified that he askedthe Defe

ndant why

they were no t going

to the hous e, but he could not remember what the D efendant

said. At the dead-end, the Defendant took A.M.’s penis out of his pants and a gai n performed

oral sex on A.M. When asked if he said any thing to the Defendant, A.M. replied, “Stop.-3-

I didn’t say nothing e

lse. I didn’t think of any

thing. I couldn’t

think of anything to say

to him to get him to stop.”

A few day s later, A .M. went to the Defend ant’s re sidence

to play and watc h movies wi

th his cousins. Other

people were in the home when A.M. arrived. H owever, A.M. was left alone with the Defendant

when the others went

to bed. While they were on the couch in the living room watching
a movie, the

Defend ant aga

in pull ed A.M.’ s penis fr om his pant s and per

formed f ellatio on him. A.M. d id not tell a

nyo ne what h appene d becau se he “w as afra id [he would] get took

from [his] mother.”

The last incid

ent occu rred when A.M. a

gain went to the Defendant’s residence to pla y w ith his cousins. He and his cousins were in the residence play ing with trucks, and his cousins went outside to play . A.M. remained in t he home playing with the trucks. While they were alone, the Defendant again took A.M.’s penis from his pants and pe rformed oral sex on him. Approximat

ely a week a

fter the last occurrenc e, A.M. to ld his mothe r about w

h at the Defendant had been

doing to h

im. The two of them went for a drive, and she asked him wha t had happened with the D efenda

nt. A.M.’ s mother te stified th at she fir st b ecame conce rned about the Defendant

and her son when she

learne d that the

Defend ant was buying toba cco for her son. A .M. to ld her that

he had been doing

ya rd work f or the De fendant , and all t

he boy s in the area dippe d snuff. Some time later, the Defendant came to the mobile home whe re A.M.’ s moth er lived and askedto see her. She testified that the Defend an t told her, “I don’t like y ou callin g me a child molester.” She was sur prised because sh e had never acc

used the D efenda

nt of bein g a chil d molester. The Defendant said that A.M. had told him about his mother asking about the snuff. A.M.’s mother replied that she had just been curious about the work that A.M. had been doing. The Defendant

then said, “Well, I

ain’t no child molester.” She testified that after the Defenda nt calmed down, he t old her, “I g ot to tell you the truth, I did you know . . . me and [A.M.], we had di d something.” She asked him what they had done, a

nd testified that he responded “that he had sucked my son’s dick.” She then took A.M. for a drive and asked him about it, and he confirmed what the Defendant told her and that it had all started with the incident which occ urred while wrestling.

The Defendant argues that the evide nce is insufficient to support four convictions for

child rape. Tennessee

Rule of Appellate Procedure 13(e) prescribes that “[f]indings of guilt in criminal actions whether by

the trial court or jury sha ll be set aside if the evidence is insufficient to support the findi ngs by the trier of f act of guilt bey ond a reasonable doubt.” Evidence is sufficient if, after reviewing the evidence in the light most favo

rable to the prosecution, a

ny r ational tr ier of fa ct could have found the essential elements of thecrime beyond a re asonable doubt. See Jackson v. V irginia , 443 U.S. 307, 3 19 (1979) ; State v. Smith , 24 S.W.3d 274, 278 (Tenn. 2000). In addition, because conviction by a

tr ier of fact

destroys the pre sumption of innocence and imposes a presumption of guilt, a convicted

criminal defendant bears the burden of showing that the evidenc e was insu fficien t. See McBee v. State , 372 S.W.2d 1 73, 176 (Tenn. 1963 ); see also State v. Buggs , 995 S.W.2d 102, 105-06 (Tenn. 1 999); State v. Evans , 838 S. W.2d 185, 191 (Tenn. 1992); State v. Tu ggle , 639 S.W.2d 913, 914 (Tenn. 1982).3 Sexual pene tratio n is define d in our criminal code as “s exual i ntercour se, cu nnil ingus , fe llat io, ana l in tercour se,
or any other

int rusi on, h owever

sl igh t, of an y par t of

a pers on’s body .

. . but e miss ion of semen is not required.” Tenn. Code A nn. § 39-13-501(7).
-4- In its review of the e

vidence , an appe

llate cou rt must af ford the State “the strong est leg itimate view of the evidence as well as all reasonable and legitimate inference s that may be dra wn therefrom.” Tuggl e , 639 S.W.2d at 914; see also Smith , 24 S.W.3d at 279. The court may not “re

weigh or re-evaluate the

evidence” in the record below. Evans , 838 S.W.2d a t 191; see also Buggs , 995 S.W.2d at 105. Likewise, should the reviewing court fi nd particular conflicts in the trial te st im on y, the cour

t must reso lve them in

favor of the jury ver

dict or trial court judgment. See T uggle , 639 S.W.2d at 914. All questions involving the credibility of witnesses, the weight an d value to be given the evidence, and all factual issues are resolved by t he trier of fact , not the a

ppellate courts. See State v. Mo

rris , 24 S.W.3d 788, 7 95 (Tenn . 2000); State v. Pappas , 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987).
“Rape of a child is the unlawful sexual penetration of a victim by the defe

ndant or the defendant by a victim, if such victim is less than thirteen (13) years of age.” Tenn. Code Ann. § 39- 13-522(a). 3 The Defendant arguesthat the evidence is insufficient to prove that he had any sexual contact with the victim. We disagree. A.M. testified to each of the four incidents which gave rise to the Defe

ndant’s c onviction s. A.M. te stified th at each time, the D efenda

nt took A.M .’s penisfrom his pants and performed fellatio on him. A.M.’s mother testified that the Defendant came to her home and admitted to her that he had performed oral se x on her eleven-ye ar-old son.

The Defendant urges us to find the testimony of A.M. and his mother not credible. He states in his brief

that “it seems irrational and incredible that [the victim] would continually go to the trailer after the abuse initially startedin August of 1999.” The Defendant furthe r states in his brief, “Even
more incredible was [A.M .’ s mother’s] testimony concerning appellant’s alleged statement to her that he had su cked [A.M .’s] penis. The appellant adamantly deniedthe accusations, and it does not stand to reason that after confronting [her] about the alleg ations, he would then tell the child’s own mother that he had committed such an act.”

The crux of Defe ndant ’s chal lenge to the sufficiency of the evidence is that the testimony of the State’s w itnesses w as not cr edible a nd therefore ca

nnot supp ort the convictions. Such an argument must fail. We r

eiterat e that all questionsinvolving

the cre dibility

of witnesses are to be resolvedby the trier of f

act, not the appellate courts. See Statev. Morris , 24 S.W.3d 788, 795 (Tenn. 2000). Furthermore , evid ence is sufficient if, in the light most favorable to the prosec ution, any rational trier of fact could have found the essential ele ments of the crime bey ond a reasona ble doubt. See Jackson v. V

irginia , 443 U.S. 307, 319 (1979 ); State v. Smith , 24 S.W.3d 274, 278 (Tenn. 2000). Based on the testimony of A.M. and his mother, a r ational juror clearly

could have found bey ond a
reasona ble doubt thatthe Defendant committed, on four separate and distinct occasions, an unlawful-5-

sexual penetration of the victim, A.M., when A.M. was less than thirteen yea rs old. Theref

ore, this issue is without meri

t.

The Defend ant’s se cond issue on appea l is whether the trial court erred by ordering

three of the sentences for child r ape to be served consecutively . When an accused challenges the le ngth, range, or manner of service of a sentenc e, this Court has a duty to conduct a de novo review of the sentence witha presumption that the determinations made by the trial court are correct. See Tenn. Code Ann. § 40- 35-401(d ). This presumption is “conditioned upon the affirmative showing in the record that the trial court considered the sentenci ng p rinciples and all relevant facts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991).

When conducting a de novo review of a sentence, this Court must consider: (a) the evidence, if any , recei ved at the

trial and sentenc ing hea

ring; ( b) the pr esentence repo

rt; (c) the principles of sentencing and arguments as to sentencing a lternatives; (d) the nature and character istic s of the criminal conduct i nvolved; (e) any statutory mitigating

or enhancement factors; (f) any statement made by the defe

ndant regarding sentenc ing; and (g) the potential or lack of pot ential fo r rehabilitation or treatment. See Tenn. Cod e Ann. §§ 4 0-35-102 , -103, -2 10; State v. Brewer , 875 S.W.2d 298, 302 ( Tenn. Crim. App. 199 3); Statev. Thomas , 755 S.W.2d 8 38, 844 (Tenn. Crim. App. 1988).

If our review reflects that the trial court followed the statutory sente ncing procedure, that the court imposed a lawful senten ce after having given due consideration and proper weig ht to the factors and principles set out under the sentencing law, and tha t the trial court’s findings of fact are adequa tely supported by the record, then we may not modify the sentence even if we would have prefe rred a diffe rent result. See State v. Pike , 978 S.W.2d 9 04, 926-2 7 (Tenn. 1998); State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

At the sentencing hearing, the tria l court imposed consecutive sentences pursuant to the follo wing: Th e c ou rt ma y or de r s en te nc es to ru n c on se cu ti ve ly i f t he co ur t f in ds by a prepond erance of the evidence t

hat:

. . . The defendant is convicted of two (2) or more statutory offenses involving sexual abuse of a minor with consideration of the agg ravating circumstances arising from the rela tionship between the defendant and vi ct im or vi ct im s, th e t im e s pa n o f d ef en da nt ’s un de te ct ed se xu al ac ti vi ty, the natur e and sco pe of the sexual ac ts and the

extent of th

e residu al, physical and mental da

mage to the victim or victims.4 We do not imply that al l of the aggravat ing circu mstances lis ted at Tenness ee Code Annotated section 40- 35- 115(b)(5) must be present to support the imposition of consecuti ve sentencing.
-6- Tenn. Code Ann. § 40-35-115(b)(5). I n ordering three of the Defe ndant’s four sentences to run co ns ec ut iv el y, the tr ial j udge co nsid ered th e ment al dam age inflicted upon A.M. b y the Defe ndant. A.M.’s mother testified that A.M.’s grades have suffe red as a result of the rapes. She describ ed A.M.
as “depres sed and afraid.” A.M. sees a thera pist once a week and takes Paxil for his depression

. Furthermore, his mother

testifie d that A.M. still has ba d dream s and “ throw s up.” The tr ial j udge stated, “It’s very

clear to me that t

his child is in for a long, long period of rehabilitation beca use of [the Defendant’s] acts.” The trial court also considered the relationship between the Defendant and the victim whe

n deciding to orde

r consec utive sen tences. The cour

t chara cterized the rela tionship
as “neighborly ,” but we note that the Defendant is actually A.M.’s first cousin, once removed. The trial court gave consideration

to “the way tha

t the defendant carried out these particular crimes, by endearing himself to the family and holding himself out to be close to the [victim] and to the family.” The court then ordered

that three of

th e D ef en da nt ’s fo ur tw en ty- yea r s en te nc es ru n c on se cu ti ve ly.

Ob vi ou sl y, our law recognizes that rape of a c hild is a most serious offense. Our legislature has classified rape of a child as a Class A felony. S eeTenn. Cod e Ann. § 39 -13-522(

b). A chi ld rapi s tmust serve the entire sentence — one hundred pe rcent — undiminished by any sentence reduction credits. See Tenn. Code Ann. § 39-13-523(b). Even though the conduct of the Defendant
was reprehensible, and while not discounting the seriousness of crimes of this nature, we be lieve the circumstances in this case militate against the application of Tennessee Code Annota ted section 40- 35-115(b)(5). There was no significant time span of undetected sexual activity and the nature of the criminal condu ct was no t aggr avated b ey ond what i s inhere nt in sex crimes commit ted aga inst children. 4 We note tha

t this Court h as held th at conse cutive se nte ncing w as unsu pported by the evidence where th

e illeg al sexual c onduct oc curred over a tw o-month

period and the defendant was the victim’s father. See State v. Hayes , 899 S.W.2d 175, 187 (Tenn. Crim. App. 1995).

We have not disregarded the trauma suf fered by A.M ., but given all the circumstances pr esentedin this case, concurrent sentences of twenty years f or the child rape convict ions ar e appropr iatein relati on to the se

verity of the of fenses a nd are th e least severe measure s necess ary

to deter the defendant’s fu tu re cr im in al co nd uc t, to pr ot ec t s oc ie ty, and to det er other s who are

similarly situated and may be likely to commit similar offenses. See Tenn. Code Ann. §§ 40-35-102 and 103.
Therefore, we modify the sente nces to reflect that they

be served concurrently , and remand to th e tr ial cou rt f or e nt ry of an o rde r co nsi st ent wit h t hi s op in io n. In all other respects, the judgment is affirmed.

___________________________________ DAVID H. WEL

LES, JUDGE