IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs April 19, 2011

STATE OF TENNESSEE v. NICHOLAS SHAWN MARSHALL

Direct Appeal from the Circuit Court for Marshall County

No. 09-CR-82 Robert Crigler, Judge

No. M2010-01090-CCA-R3-CD - Filed August 3, 2011

The defendant, Nicholas Shawn Marshall, stands convicted of rape, a Class B felony. The

trial court sentenced him as a Range II, violent offender to fifteen years in the Tennessee

Department of Correction. On appeal, the defendant argues that the trial court erred in

admitting hearsay and that the evidence wasinsufficient to support his conviction. Following

our review, we affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

J.C. MCLIN, J., delivered the opinion of the court, in which ALAN E. GLENN, J., joined and

CAMILLE R. MCMULLEN, J., concurring in results only.

Gregory D. Smith (on appeal), Clarksville, Tennessee, and Donna Orr Hargrove, District

Public Defender, Michael Collins, William Harold, and Stephanie Barca, Assistant Public

Defenders (at trial), Shelbyville, Tennessee, for the appellant, Nicholas Shawn Marshall.

Robert E. Cooper,Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney

General; Charles Frank Crawford, Jr., District Attorney General; and Weakley E. Barnard

and Chris Collins, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

Background

A Marshall County jury returned an indictment on September 23, 2009, charging the

defendant, Nicholas Shawn Marshall, with two counts of rape, which were alternate theories

of sexual penetration without consent and sexual penetration while the victim was mentally

incapacitated or physically helpless. The court held a jury trial on February 4 and 5, 2010.
The victim testified that she was twenty-two years old at the time of the offense and

lived in Lewisburg, Tennessee. She knew the defendant through his step-brother, Daniel

Proctor. She and Daniel Proctor lived together for three and one-half years, until she ended

the relationship in March 2009. They had a three-year-old son, who lived with her. The

victim said that she first saw the defendant in May 2009, but no one introduced them and

they did not speak. She did not see him again until June 6, 2009.

The victim testified that her son’s birthday was June 5, and Daniel Proctor spent the

night of June 5 at her apartment with her and her son. She said that they did not sleep

together that night. On the morning of June 6, she, Daniel Proctor, and their son went

shopping. At approximately 1:00 p.m., they met Daniel Proctor’s father,Johnny Proctor, and

his step-brother, the defendant, at “the rock crusher,” a rock quarry lake where the public

swam and fished. Daniel Proctor introduced her to the defendant, and they had a brief

conversation. She had invited her friends Eric Wood, Denise Tosch, and Cherry Bishop to

join them at the quarry. She said that Mr. Wood and Ms. Tosch were her neighbors, and they

arrived soon after she did. Ms. Bishop and her two-year-old daughter arrived at

approximately 2:30 p.m. and stayed for a short time. She recalled that they were split into

two groups: her friends and herself in one group and the defendant, Daniel Proctor, and

Johnny Proctor in a second group. She said that she had one twelve-ounce beer while her

friends were at the quarry.

The victim testified that after her friends left, she joined the Proctors and the

defendant. She, Daniel Proctor, and the defendant went to a store in her vehicle to buy a case

of beer and returned to the quarry. The victim recalled Daniel Proctor and the defendant

conversing in the car, but she did not talk to the defendant at that time. She had a second

twelve-ounce beer after they returned from the store. Later, she and the defendant left the

quarry to get a pizza. She recalled that the defendant drove Johnny Proctor’s car, and she

went with him because no one else wanted to go. She testified that she did not “think of any

harm in going to the store with him” because he was Daniel Proctor’s brother. The victim

said that they talked about Daniel Proctor and her relationship with him during the drive.

After they returned to the quarry with the pizza, the group made plans for the evening.

Daniel Proctor asked her to take the defendant to her apartment while he went with his father

to get a change of clothes. She said that Daniel Proctor told her that he would send her a text

message when he was ready for the evening. The victim said that she, the defendant, and her

son left the quarry between 5:30 and 6:00 p.m.

The victim testified that they went to Ms. Bishop’s house because Ms. Bishop was

going to babysit her son for the evening. The defendant went with her into Ms. Bishop’s

house, and he and Ms. Bishop had a conversation. Ms. Bishop gave the defendant her cell

phone number. After leaving her son with Ms. Bishop, she and the defendant went to a store.

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She purchased a thirty-six ounce bottle of beer, and a six-pack of beer. She testified that she

did not plan on the defendant staying at her apartment for long. The victim said that she

drank the large bottle of beer while she got ready for the evening. She said that she took a

shower and changed clothes in her bathroom, and she locked the bathroom door so that the

defendant could not come into the bathroom. The victim said that the defendant was on the

couch in her living room while she was in the bathroom. When she left the bathroom, she

was fully dressed in a black tank top and blue jeans. The victim said that Daniel Proctor had

not sent her a text message by 7:00 or 7:30 p.m. She sent him a text message to ask him

where he was and whether he was going to come and pick up the defendant, but he did not

respond.

The victim testified that she finished the large bottle of beer and got another beer from

the refrigerator. She went outside to sit on the steps because she was upset about being left

alone with the defendant. She said that she did not feel comfortable being alone with him

inside the apartment. While she was outside, she continued sending text messages to Daniel

Proctor, and she said that she knew that he had received the messages because her cell phone

indicated that he had. She began crying, and a neighbor stopped to ask her what was wrong.

She told her neighbor that she was supposed to meet Daniel Proctor, but he was not returning

her messages. She also told her neighbor that he had left his brother with her. She testified

that she did not have enough fuel in her car to drive the defendant to Shelbyville, where he

lived. The victim said that the defendant was aware that she was upset.

The victim testified that she went to Ms. Tosch and Mr. Wood’s apartment. Ms.

Tosch came outside, and the victim told her about the situation. Ms. Tosch told her that she

would come to her apartment later. The victim returned to her apartment, and the defendant

told her that Johnny and Daniel Proctor had gone to Fayetteville and would not be coming

over to her apartment. She did not know how the defendant learned that the Proctors had

gone to Fayetteville, but she said that he had been sending text messages to someone. The

victim testified that the defendant suggested that he could walk home, but she told him that

he could stay at the apartment and she would make arrangements for someone to pick her up.

She explained that she did not want to be at the apartment alone with him, so she would leave

and let him stay.

The victim said that Ms. Tosch and Mr. Wood came to the apartment for

approximately twenty minutes, and she sent a text message to a friend to ask the person to

come pick her up. She testified that she drank the six-pack of beer while waiting for her

friend. She recalled that the defendant opened the last bottle for her while she was using the

restroom. The victim said that after she finished the beer, she asked Ms. Tosch to go to a

nearby store to buy her a soda. She agreed that she had “a buzz” after she finished the beer,

but she denied that she was drunk. The victim said that she sent a text message to a friend

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approximately ten minutes after Ms. Tosch left to get the soda. She testified that she

remembered a few minutes passing after she sent the message to her friend, who did not

respond right away, and then she had no memory of what happened next. She said that her

best estimate was that her last memory was at approximately 10:30 p.m.

The victim testified that she would have remembered if someone had asked her

whether she wanted to have sex. She said that the defendant never said anything to her about

sex, nor did he “come on to [her]” or touch her in anyway. She stated that if he had asked

her to have sex or made any suggestion about having sexual relations, she “would have said

no[, and] made him start walking.”

The victim testified that her next memory after 10:30 p.m. was waking up in her bed

at 7:00 a.m. the following morning. She recalled that she had on the tank top and bra that she

had on the previous day, but her pants and underwear were off. The victim said someone

was kissing her neck when she woke up, and when she turned to see who it was, she saw the

defendant. She testified that she jumped out of bed, and the defendant told her that they had

sex. She responded that she had not consented and that she did not remember anything. The

victim recalled asking the defendant whether there was any semen in her, and “he said he

pulled out.” She testified that she had been on her menstrual cycle and had been using

tampons, but no tampon was inserted when she woke up. She agreed that someone would

have had to remove it.

The victim said that she dressed and went outside because she was upset. She went

upstairs and knocked on Ms. Tosch’s door, but no one answered. As she was coming

downstairs, she saw Johnny Proctor walking up to her. The victim said that she was crying,

and Johnny Proctor asked what was wrong. She told him that the defendant had sex with her

without her consent and that she did not remember anything. He responded, “Well,

sometimes guys do that when they are drunk.” The victim said that she had to go back into

her apartment to get her purse and keys so that she could pick up her son, and the defendant

was sitting in the living room. She testified that he told her, “I’m sorry.”

The victim testified that she left and drove to Ms. Bishop’s house to pick up her son.

She said thatJohnny Proctor and the defendant followed her to Ms. Bishop’s house in Johnny

Proctor’s vehicle. When she arrived at Ms. Bishop’s house, Ms. Bishop invited Johnny

Proctor and the defendant to come inside. The victim asked Ms. Bishop to step outside with

her, and she told Ms. Bishop what happened. Ms. Bishop asked Johnny Proctor and the

defendant to leave her house. As he was leaving, the defendant said, “I’m sorry; that is not

me.” Johnny Proctor told her that Daniel Proctor was at a residence in Fayetteville,

Tennessee. The victim said that she wanted to see Daniel Proctor because Ms. Bishop had

related to her a conversation that Ms. Bishop had with the defendant.

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The victim testified that she and Ms. Bishop went to Fayetteville. Daniel Proctor was

not at the residence, so she called the Fayetteville Police Department and told them what

happened in Lewisburg. They advised her to go to Lewisburg to file a report, which she did.

She testified that she arrived at the Lewisburg Police Department at approximately 11:00

a.m. on June 7, 2009. She identified the defendant in a photo lineup at the Lewisburg Police

Department that day. She also went to a hospital, where the staff drew her blood and

collected a rape kit. The victim testified that she did not have any physical injuries.

Cherry Bishop testified that she was a friend of the victim. She met the victim at the

rock quarry on June 6, 2009, after the victim invited her. She did not stay long. Ms. Bishop

testified that later that evening, the victim and the defendant came to her house, and the

victim asked her to watch her son that night. She agreed to watch the victim’s son, and she

had a conversation with the defendant. She could not recall whether she gave him her phone

number or whether the victim had, but she received a text message from him that night. They

sent text messages back and forth, and the defendant asked whether he could see her the next

day. The defendant also told her that the victim did not want him at the victim’s apartment.

She received the last text message from him that night between 9:00 and 10:00 p.m.

Ms. Bishop testified that the defendant sent her a text message the following morning

to ask if he could come to her house, and she responded that he could. She said that the

victim and the defendant came to her house at the same time, and Johnny Proctor came in

five minutes later. Ms. Bishop said that she had assumed that the victim and the defendant

had taken the same vehicle over to her house because they arrived at the same time. Ms.

Bishop testified that the victim pulled her outside and talked to her. After their conversation,

Ms. Bishop talked to the defendant, and “[h]e said that he was messed up, and she was

messed up, and he thought that it was consensual . . . .” Over the defendant’s objection to

hearsay, Ms. Bishop testified that the defendant said that “Daniel told him that if he was to

get [the victim] drunk, he could do something with her. But he also said that was not his

intentions.” He also told her that Daniel Proctor told him to go home with the victim.

Denise Tosch testified that in June 2009, she and her boyfriend, Eric Wood, lived in

the apartment above the victim. She knew both the victim and Daniel Proctor. Ms. Tosch

testified that on June 6, 2009, the victim invited her and Mr. Wood to go to the rock quarry.

She said that they arrived at the rock quarry at 1:00 p.m. and stayed until 2:30 p.m. She spent

almost the entire time with the victim. Ms. Tosch recalled that the victim “maybe had a

couple of beers.” Ms. Tosch testified that after she and Mr. Wood left the rock quarry, they

went to his son’s baseball game and returned home in the early evening. She remembered

that it was still daylight when they arrived at home. Ms. Tosch said that she and Mr. Wood

visited the victim in the victim’s apartment. She stated that it was daylight at the time, and

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the defendant was also at the victim’s apartment. She said that the first time she had seen the

defendant was at the rock quarry that day. Ms. Tosch remembered that the victim was sitting

on her couch, wearing long pants, and the defendant was in a recliner. She agreed that

“everything seem[ed] all right at that time.” Ms. Tosch and Mr. Wood returned to their

apartment, and Mr. Wood took a nap. Ms. Tosch said that she went back to the victim’s

apartment some time after dark for five to ten minutes. She testified that the victim “wasn’t

drunk” at that time, and she agreed that the victim had “all of her faculties about her.” Ms.

Tosch stated that the victim wanted a soda, and she told the victim she would get her a soda

from the vending machine at a nearby grocery store. Ms. Tosch drove to the store, got the

soda, and returned to the victim’s apartment within five minutes. When she returned, she

walked into the victim’s apartment and observed that the victim “was passed out on the

couch, and [the defendant] was sitting next to her.” She said that the victim was not able to

communicate with her, and the defendant did not say anything to her, either. She gave the

soda to the defendant and left. Ms. Tosch testified that she “just thought . . . [the victim] was

tired, more tired than I thought.” She further testified, “I honestly didn’t think anything of

it. I assumed that she had known him.” Ms. Tosch said that when Mr. Wood awoke from

his nap approximately one hour later, she told him about going to get the victim a soda and

how the victim did not wake up when she came back with the soda. She said that Mr. Wood

suggested that they go downstairs to check on the victim. Ms. Tosch testified that they went

downstairs and “peeked in [the victim’s] window.” She said it was dark inside, and she did

not see anyone. They tried to open the door, but it was locked. She testified that she did not

have any reason to believe that the defendant was still at the victim’s apartment at that time,

and she recalled that the victim had been trying to find someone to pick up the defendant.

On June 7, 2009, the victim told her what had happened, and the police were at the victim’s

apartment.

Eric Wood testified that he knew the victim because his girlfriend, Denise Tosch,

lived in an apartment above her. He said that on June 6, 2009, the victim invited him and

Ms. Tosch to go to the rock quarry. They arrived at approximately 1:00 p.m. and stayed until

approximately 3:00 p.m., when he and Ms. Tosch left to go to his son’s baseball game. Mr.

Wood recalled speaking with Daniel Proctor while at the rock quarry, but he did not recall

speaking with the defendant. After the baseball game, they returned home, and he took a

nap. Mr. Wood said that when he awoke, Ms. Tosch told him that the defendant was with

the victim in the victim’s apartment. Ms. Tosch related to him that the victim was

uncomfortable with the defendant’s being there. He went downstairs “to see what was going

on.” Mr. Wood said that the victim was standing outside of her apartment trying to contact

someone to pick her up. The defendant was inside the victim’s apartment sitting on the

couch. Mr. Wood said that he was concerned about the situation and that the victim was not

intoxicated at the time. He stayed downstairs for ten to fifteen minutes and returned to Ms.

Tosch’s apartment. Mr. Wood testified that at 11:00 p.m. or 12:00 a.m., he went back to the

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victim’s apartment to check on her. He knocked on the door and tried to turn the doorknob.

Mr. Wood said that the door was locked, so he went to the front of the apartment to try to

look through the window. He did not see anyone inside of the apartment. Mr. Wood said

that the window was open, and he yelled inside to see if anyone was there. He testified that

Ms. Tosch was either with him when he was checking on the victim or she came down with

him to try for a second time. Mr. Wood testified that on June 7, he went outside of his

apartment because he saw police vehicles. The victim told him what happened. A police

officer showed him a photo lineup, from which he identified the defendant as the person he

had seen inside the victim’s apartment.

The parties stipulated that Dr. Dennis McCracken and Nurse Norma Collins collected

a rape kit from the victim on June 7, 2009, which Detective James Johnson submitted to the

Tennessee Bureau of Investigation (“TBI”). The parties further stipulated that Detective

Johnson collected buccal swabs from the defendant, which he sent to the TBI.

TBI Special Agent John W. Harrison testified that he was a forensic toxicologist. He

performed a basic drug screen on the victim’s blood, and he concluded that the victim’s

blood was negative for any basic drug. Agent Harrison testified that common date rape drugs

leave the body within one to two hours of ingestion. He said that if a person has had alcohol

prior to ingesting a date rape drug, the drug “can have a more profound effect.” He testified

that a drug screen might not have detected date rape drugs in the victim’s system due to the

period of time that elapsed before the victim’s blood was drawn at 2:00 p.m. on June 7.

Agent Harrison testified that TBI Agent Dawn Swiney analyzed the victim’s blood for ethyl

alcohol and found no alcohol present. Agent Harrison explained that the body eliminates

approximately one serving of alcohol each hour and stated that it was “not unreasonable that

a person would have alcohol [thirteen] hours before and find none [thirteen] hours later in

the bloodstream.”

Laura Lee Staples testified that she was a former special agent forensic scientist with

the TBI. She tested the victim’s vaginal swabs, taken as part of the rape kit, and found the

presence of semen and sperm. She testified that the DNA in the sperm matched the

defendant’s DNA.

Lewisburg Police Detective James Johnson testified that he talked with the victim at

the police department on June 7, 2009. He went to her apartment to take photographs and

took the victim to the hospital for the rape kit. Detective Johnson prepared a photo lineup

that he showed to the victim, Ms. Bishop, and Mr. Wood, each of whom identified the

defendant. He spoke with the defendant on June 9, 2009, at the police department. He

advised the defendant of his Miranda rights, and the defendant waived his rights and agreed

to talk to the detective. The defendant gave him a statement, which he reduced to writing.

Detective Johnson read the defendant’s statement as follows:

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On Saturday, [June 6, 2009], at around 4:00 p.m., we, Johnny Proctor

and myself, met my brother, Daniel Proctor, [the victim], and their son . . . , at

the rock quarry. We were hanging out, fishing and swimming. We were

sitting around drinking. While I was there, I drank about a 12-pack of Bud

Light. [The victim] was drinking a 40-ounce Bud Light.

When we got finished swimming, we decided to go out for the night.

We had planned for all of us to meet at [the victim]’s house and leave from

there. [The victim] and I left together and went to [Ms. Bishop]’s house to

drop off [the victim’s son]. We left [Ms. Bishop]’s house and went to [the

victim]’s house. [The victim] drove to her house.

When we got there, I went inside and sat on the couch. [The victim]

handed me a beer out of the refrigerator. [The victim] was walking around,

trying to get a hold of Daniel and Johnny. While we were waiting on Daniel

and Johnny, I drank two beers, and [the victim] drank three.

While we were there, a friend of [the victim]’s came to the apartment

to see [the victim]. [The victim] got mad because she couldn’t get in touch

with Johnny or Daniel. When her friend left, [the victim] came over and sat

down on the couch next to me. When she sat [down] on the couch, [the

victim] was extremely intoxicated. She was talking to me, but her speech was

slurred and she was hard to understand. She leaned her head over on to my

shoulder, and I started kissing her.

[The victim] got up off of the couch, and I grabbed her around the waist

with one hand and had her hand with the other hand and helped her to the

bedroom. When we got into the bedroom, she laid down on her back. [The

victim] couldn’t talk back when I asked her questions. [The victim]

unbuttoned her pants, and I got on top of her and pulled her pants off. I pulled

her panties off one leg. I got on top of her, in between her legs, and started

having sex with her. At this time, she was so messed up, she couldn’t talk or

respond. When I ejaculated on the sheets, I rolled over, put my underwear

back on, and went to sleep.

The next morning, I woke up when I felt her move. She rolled over and

asked, did we do anything last night.

I said yes.

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She asked if I used a condom, and I said no, but I pulled out.

[The victim] got up and left the room, and I put my shoes on to leave.

She came back in and asked, where are you going? We laid back down

and went back to sleep.

When we woke up again, I told her I was sorry for what I had done.

She asked if I pulled out, and I said yes; why, did you have any condoms[?]

She said she did.

I got up and Johnny came to pick me up. [The victim] went outside and

talked to Johnny. When she came back in, I left.

During the time we were drinking together, the more I drank, the more

desirable [the victim] became towards me. [The victim] was incapable of

making any decisions about us having sex at the time we did, because of being

intoxicated. I am very sorry about what happened, and if I could, I would have

never done this to [the victim]. I was also intoxicated, too.

On cross-examination, Detective Johnson testified that he found no physical evidence

that indicated the use of a date rape drug.

On re-direct examination, Detective Johnson testified that he did not go through the

victim’s trash can or “pull the traps off” of the sink and commode.

Following the close of proof and deliberations, the jury found the defendant guilty on

both counts of rape, which the trial court merged into one Class B felony conviction. The

trial court sentenced the defendant as a Range II, violent offender to fifteen years in the

Tennessee Department of Correction. The trial court denied the defendant’s motion for new

trial, and the defendant filed a timely notice of appeal.

Analysis

I. Hearsay

For his first issue, the defendant argues that the trial court erred by admitting a thirdparty hearsay statement into evidence. Specifically, the defendant contends that the

testimony from Cherry Bishop that related a statement from the defendant regarding

something Daniel Proctor had told him could not be used to prove the defendant’s intent

because the state of mind hearsay exception only applies to the state of mind of the declarant,

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the declarant being Daniel Proctor. The state responds that the testimony was not hearsay

because it was not offered to prove the truth of the matter asserted.

Generally, decisions regarding the admission of evidence are left to the sound

discretion of the trial court. State v. Saylor, 117 S.W.3d 239, 247 (Tenn. 2003). “[T]rial

courts are generally accorded a wide degree of latitude and will only be overturned on appeal

where there is a showing of abuse of discretion.” Id. However, “[w]hether the admission

of hearsay statements violated a defendant’s confrontation rights is . . . a pure question of

law.” State v. Franklin, 308 S.W.3d 799, 809 (Tenn. 2010).

In Crawford v. Washington, 541 U.S. 36 (2004), the United States Supreme Court

held that testimonial hearsay statements violate a defendant’s rights under the federal

constitution’s Confrontation Clause and are only admissible when (1) the declarant is

unavailable and (2) the defendant has had a prior opportunity to cross-examine the declarant.

541 U.S. at 68-69; see also State v. Maclin, 183 S.W.3d 335, 345 (Tenn. 2006), abrogated

by State v. Cannon, 254 S.W.3d 287 (Tenn. 2008). When hearsay is non-testimonial, the

Tennessee Rules of Evidence govern its admissibility. Franklin, 308 S.W.3d at 810. Nonhearsay statements - i.e. statements not admitted for the truth of the matter asserted - do not

violate the Confrontation Clause, whether or not the statements are testimonial. Id.

Tennessee Rule of Evidence 801(c) defines hearsay as “a statement, other than one

made by the declarant while testifying at the trial or hearing, offered in evidence to prove the

truth of the matter asserted.” Rule 802 provides that hearsay is not admissible except as

allowed by the rules of evidence or other applicable law. Two exceptions to the hearsay rule

that are relevant in this case are the party-opponent admission exception and the state-ofmind exception. Tenn. R. Evid. 803((1.2),(3)). When a statement involves hearsay within

hearsay, the separate parts of the statement must each conform with a hearsay exception.

Tenn. R. Evid. 805.

In this case, the state elicited testimony from Cherry Bishop that the defendant told

her that “Daniel told him that if he was to get [the victim] drunk, he could do something with

her.” The defendant also told Ms. Bishop, according to her testimony, that Daniel Proctor

told him to go home with the victim and that it “was not his intentions” to go through with

Daniel Proctor’s suggestion. The trial court ruled that Daniel Proctor’s statement was not

hearsay because the state was not offering it for the truth of the matter asserted but to show

the defendant’s mens rea.

Initially, we note that the defendant’s statements to Cherry Bishop, other than his

statement of what Daniel Proctor said, were admissible as party-opponent admissions, and

the defendant did not challenge their admissibility at trial. Tenn. R. Evid. 803(1.2). The

statement at issue is what Daniel Proctor said to the defendant, as related by the defendant

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to Ms. Bishop. We agree with the trial court that the statement was not hearsay because the

state was not offering the statement for the truth of the matter asserted. The matter asserted

was that the victim was sexually available when intoxicated. The state did not offer the

statement to prove that the victim was in fact sexually available when intoxicated but rather

to prove that the defendant believed the statement to be true and acted accordingly. See State

v. Venable, 606 S.W.2d 298, 301 (Tenn. Crim. App. 1980) (concluding that the victim’s

statement regarding his sobriety was not probative for the truth of the matter asserted but was

admissible to provide evidence of the defendant’s motive for committing the offense).

Because the state did not offer the statement as substantive evidence, the statement was not

hearsay and did not violate the defendant’s right to confrontation. Therefore, he is without

relief as to this issue.

II. Sufficiency of the Evidence

The defendant argues that the evidence was insufficient to support his conviction.

Specifically, he contends that the state did not prove that the defendant intended to rape the

victim.

It is well established that once a jury finds a defendant guilty, his or her presumption

of innocence is removed and replaced with a presumption of guilt. State v. Evans, 838

S.W.2d 185, 191 (Tenn. 1992). Therefore, on appeal, the convicted defendant has the burden

of demonstrating to this court why the evidence will not support the jury’s verdict. State v.

Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000); State v. Tuggle, 639 S.W.2d 913, 914

(Tenn. 1982). To meet this burden, the defendant must establish that no “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); State v. Evans, 108 S.W.3d 231, 236 (Tenn.

2003); see also Tenn. R. App. P. 13(e). In contrast, the jury’s verdict approved by the trial

judge accredits the state’s witnesses and resolves all conflicts in favor of the state. State v.

Harris, 839 S.W.2d 54, 75 (Tenn. 1992). The state is entitled to the strongest legitimate view

of the evidence and all reasonable inferences that may be drawn from that evidence.

Carruthers, 35 S.W.3d at 558. Questions concerning the credibility of the witnesses,

conflicts in trial testimony, the weight and value to be given to the evidence, and all factual

issues raised by the evidence are resolved by the trier of fact and not this court. State v.

Bland, 958 S.W.2d 651, 659 (Tenn. 1997). We do not attempt to re-weigh or re-evaluate the

evidence. State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006). Likewise, we do not replace the

jury’s inferences drawn from the circumstantial evidence with our own inferences. State v.

Reid, 91 S.W.3d 247, 277 (Tenn. 2002). These rules are applicable to findings of guilt

predicated 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).

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The Tennessee Code Annotated defines rape as the “unlawful sexual penetration of

a victim by the defendant or of the defendant by a victim accompanied by” one of the

enumerated circumstances. Tenn. Code Ann. § 39-15-503(a). The state alleged two alternate

theories of the offense in this case. The first theory was that the unlawful sexual penetration

“[was] accomplished without the consent of the victim and the defendant [knew] or [had]

reason to know at the time of the penetration that the victim did not consent.” Id. at § 39-15-

503(a)(2). The second theory was that “[t]he defendant [knew] or [had] reason to know that

the victim [was] mentally defective, mentally incapacitated or physically helpless.” Id. at

§ 39-15-503(a)(3).

Viewed in the light most favorable to the state, the evidence presented at trial showed

that the victim, who had been drinking beer throughout the afternoon, passed out on her

couch on June 6, 2009. Denise Tosch testified that she visited the victim’s apartment and

observed the victim sitting on her couch and the defendant sitting in a recliner. She left the

victim’s apartment to get a soda for the victim and returned five minutes later. When she

returned, the victim was passed out on the couch with the defendant sitting next to her. The

victim did not have any memory of anything that occurred between approximately 10:30

p.m. and 7:00 a.m. the following morning. When she awoke, she realized that her pants and

underwear had been removed, as well as the tampon she had been wearing the night before.

The defendant was lying next to her in the bed, and he admitted that he had sex with her.

The victim testified that she never consented. Forensic examination revealed the presence

of the defendant’s sperm in her vagina. In the defendant’s statement to the police, he

admitted to having had sex with the victim when she “was incapable of making any decisions

about . . . having sex.” His statement reveals that he sexually penetrated the victim (1)

knowing that she had not consented because, according to him, she could not make such a

decision and (2) when she was “mentally defective, mentally incapacitated or physically

helpless” because of her intoxication. Tenn. Code Ann. § 39-15-503(a)(3). Therefore, we

conclude that the evidence was sufficient for the jury to find the defendant guilty of rape.

Conclusion

Based on the foregoing reasons, we affirm the judgment of the trial court.

___________________________________

J.C. McLIN, JUDGE

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