1 It is the polic y of this court to i

dentify t he victi ms of sexual abus

e by their initi

als only. 

### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON Assigned on Briefs M

ay 8, 2002 STATE OF TENNESSEE v. MICHAEL WILL IAMS Direct Appeal from the Criminal Court for Shelby County

No. 99-08306 J. C. McLin, Judge

No. W2001-01925-CCA-R3-CD - Filed June 20, 2002

The defendant, Michael Williams, was convicted of rape, a Class B fe

lony, and sentenc

ed to thirty years in the Tennessee Department of Correction as a violent offender. In his appeal, he argues that the evidence at trial was insufficient to support his conviction for rape. However, we disagree and affirm the judgment of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed A LAN E. G LENN , J., delivered the opinion of the court, in which D AVID G. H AYES and J ERRY L. S MITH , JJ., joined. A C Wharton, Jr., She

lby County Public

Defender; Tony N. Brayton, Assistant Public Defender (on appeal); and Mary K. Kent, Assistant Public De

fender (at tria

l), for the appel

lant, Michael Will

iams. Paul G. Summers, Attorney General and Reporter; Braden H. Boucek, AssistantAttorney Genera l; WilliamL. Gibbons, District Attorney General; and Patience Branham, Assistant District Attorney General, for the appellee, State of Tennessee. OPINION FACTS The victim, L.T., 1 testified that she was 18 years old as of March 29, 1999, the day she was raped. That evening, she played basketba

ll at t he Greenla

wn Gym in Memphis until around 9:30 p.m. and then walked to

her mother’s hous

e on Georgia

Street to pick up some money to buy diapers for her one-year-

old son. L.T. then le

ft her mother’s house to walk home to her grandmother’s apartment in the Foote Homes ho

using project,

which was about

thirty-five minute

s away. She said-2-

that she had made this walk only two times before that evening, and described what occurred as she walked to her gra

ndmother’s apar

tment: A I was coming from my mother’s house. I was going through the Cleaborn Home Developmen t when him

and another

guy – they were behind me from the time I left out of my mother’s house t

o the time I made it there, but I didn’t pay it a ny attention cause

it was like they were just walking behind me. But once I – Q I hate to interrupt you . . . [w]hen you said him, and you pointed somewhere, can you desc ribe for the record where it was you pointed? A Him with the blue shirt on with the ink pin [sic] up to his chin. MS. BRANHAM: Your Honor, for therecord she has identified Michael Williams,

the defendant. THE COURT: Let the record so state. Q Did you know who he w as? A No. Q Had you seen him before? A No. Q Did you know the other person? A No. Q Had you seen him before? A No. Q And what happened? You can go back to where they were walking behind you. A Once I got

up – it’s kind of like dark by this development – and once I got up there by this apartment, he walked in front of me. [The defendant’s] friendwalked behind me and put the pistol right here to my neck.-3- Q All right. Now who put the pistol to your neck? A His friend.

. . . . Q All right. And what happened then? A Then they took me in this abandoned house.

(Pause.) Q [L.T.], can you tell us what happened when you got in there? A Him and his friend raped me, man. Q Now, I’m sorry, but you’ re going to have to go into a little

bit of detail? A I had on these pants, these jog ging pants like the b asketball players wear. They come off. They snap off real easy. All you have to do is pull on them, and they come off. And he pulled them off. L.T. ide ntified photograp hs of the exterior

and interior of th

e abandoned apa

rtment in th e Cleaborn Homes housing project where the rape occurred. She testified that the defendant and the other man grabbed

her and pulled her into theback door and then into the kitchen. The defendant told her not to scream. The two men forced her down onto the kitchen floor. L.T. described what happened next:

Q Now, when they approached you there in the Cleaborn Projects, where they took to

you [sic] to the house, what did they say to you? A They didn’t say much of nothing. You know, he just

like grabbed me, like come on. He took a necklace off my neck. And then once we got in there, he snatched the pants off. He went first and then his friend gave the gun to him and he held it and his friend raped me. Q All right. Now, did both of them rape you? A Yes, ma’am. Q Now, when you say rape , tell me exactly w

hat it is they did to you?-4- A He took something he know [sic] he wasn’t supposed to take because I wasn’ t giving it to him. Q And what did he do to you? A He had sex with me.

. . . . Q Did he enter your body in any way? A Yes. Q And how did he do tha t? A Like a person having sex, but he was kind of like

forceful with it. Q Was this the private parts of his body? A With his penis. Q And what part of your body did he have sex with[?] A My vagina. Q Your vagina. Did he – was there an ejaculation? A Yes. Q Now, what happened then? A Okay

. After

his friend went into the living room area on the picture where I showed y

ou all, he was like – like he turned his back. When he got through, he was fixing ready [sic] to get up, I pushed him up off of me, and I ran out the door by these two dudes that was sitting up under

the tree. And they was askin g me what’s wrong w

ith me because

I was putting my

pants back on, but I

wouldn’t tell them. So they walked me to my grandmother’s ho

use because

they knew my uncles. They gr

ew up with my uncles

. Once I got to my grandmother’s house, I did n’t tell my gr an dmother

what happened; I didn’t tell them what happened. I-5- call eda teacher of mine, who I talk to all the time. I told her wha t happened, and she told me to give the phone to my grandmother. L.T. said she called her t e acher, Gloria Taylor, and told her what had happened. She then gave the phone to her grandmother who called the police. That evening, she was questioned by the police about the rape and showed them the apartment where it had occurred. She then went to the Memphis Sexual Assault Resource Center (“MSARC”). About

a week after the rape, she identified a photograph of th

e defendant whil

e at police headq

uarters: Q And what happened when you came downtown t o look at th e mug book? A I was lik

e – just like I was looking through it. And then I ha d saw [sic] hispicture at first, but I didn’ t stop by because I wanted to be sure that that was

him. So I went on through it, but then I turned t he boo k back over and I went back through it again, and I seen the picture aga in. And I told the lady that w as there that tha

t was him. And she had me sign my initials by the picture. L.T. testified that she did not voluntarily go with the two men she encountered on March 29, 1999, andshe was scared because she thought they would kill her after they raped her. She kept “telling them to stop, but they wouldn’t stop.” During cross-examination of L.T., defense counse l read aloud the st

atement L.T. gave

to a detective about a week after the rape:

Q “ [T]ell

me in your own words what happened to you when y o u were walking on th

e east side of 591 S aint Paul? ANSWER: I had just come from my – over from my mother’s house, andI was headed to my grandmother[’s] house. These two guys had got behind me, one stepped in front of me and the other one, he grabbed me from behind and carried to [sic] the empty ap artme nt where I was walking at. And once we got inside, both did what they didto me. The one with

the gun pulled me in the house. The other guy came in the house and closed the door. And when the y got inside, the light-skinned male [the defendant], he pulled my pants

off andpenetrated my vagina with his penis. And after he g ot up, the other male gave the gun to thelight-skinned male, the dark-skinned one raped me. And then afte

r the second one f

inished, I pushed h

im up and ran out the door where two guys were standing outside. And they asked me what had happened, and I told them that the two dudes-6- w ere a fter me. And they walked me home. I didn’t tell them what just happened to me.” Defense counsel then asked L.T. why she had failed to mention in

her statement that one of the men hadstolen her necklace and why she had testified that the defendant was the second man to rape her butsaid in her statement to the police that the defendant was the first man to r ape her. L.T. responded

that she felt the necklace was not important and claimed that she told the detective taking her statement that the defendant was the second man to rape her. She said she did not read the statement before she initialed it. Also, during cross-examination, L.T. said that she was not physically injured from the rape, that she did n ot kno w the defendant or the defendant’s family, and that she had never called the defendant’s mother. She denied that she agreed to have sex with the defendant for seven dollars. Gloria Taylor testified t

hat she was a special projec ts coordinator wit

h the Memphis City Schools, and knew L. T. from when she participated in a GED program in 1998. Taylor said L.T. calledher at about 11:00 p.m. on March 29, 1999, and said that she had been raped. L.T. said that she did not want

to tell her grandmother or the police what had happened. Taylor said that although L.T. typically p rese nted herself as a “hard girl” who could always take care of herself, she “ knew something was wrong [when she got the phone ca ll] becau se [L.T.’s] hardness wasn’t there anymore.” Taylor encouraged L.T. to tell her grandmother what had happened

but did not, herself, informL.T.’s grandmother bec ause she felt it wa

s “[L.T.’s] plac

e to tell her grandmother.” Taylor stated that L.T. said the n

ext day that she ha

d, in fact, told

both her grandmother

and the police about the incident. Officer Jimmy L. Daniels of the Memphis Police Department Sexual Crimes Child A

buse Unit testified that he showed L.T. some mug books and took her statement. Daniels said that L.T. identified the defendant in one of the photographs and printed and signed her name and

wrote the date and time on the back of the chosen photograph. Patricia Speck, the coordinator of nursing services at the MSARC, testifie d as an expert in forensic nursing. She said that Nancy L. Miles, a nurse clinician who was out of the country at the time of the trial, had examined L.T. on the night of the ra

pe. According to

the information listed on L.T.’s s exual a ssault kit, Miles collected the following evidence: a dry blood standard, vaginal slides, pubic hair combings, two vulvar swabs, four vaginal swabs, an

d two saliva standa

rd swabs. Spec k said that L.T.’s vaginal slide indicated the presence of nonmotile sperm and that the repo r t showedthat L.T. had no trauma in the genital area. However , Speck explai ned that if L.T. had previously

given birth

to a child, she “wo

uld expect . . . les s trauma

because the tissue’s already been stretched.” Margaret Aiken, a forensi c nurse and sexua l assault nurse ex

aminer with the MSA

RC, id entifi edthe defendant as the suspect from whom she took a blood sample, putting it into the suspect’s kit which she labeled and sealed.-7-

HyumKim, a forensic scien tist wit h the Memphis Police Department, testified that he collected evidence, consi

s ting of th e suspect’s kit and the victim’s kit and underwear, from MSARC’s secured facility and forwarded it to the Tennessee Bureau of Investigation (“T BI ”) laboratory for D

NA analysis. Donna Nelson, a special agent/forensic scientist with the TBI, testifying as an expert in the field of serology, said that DNA testing revealed tha t the sperm found on L.T.’s vaginal swab belonged to the defendant. Following this testimony, the State rested its case in chief. The defense’s first witness was Mary Williams, the defendant’s mother, who said that she talkedto L.T. on the telephone approximately two months after the defendant was arrested. Williams said that L.T. iden tified herself

as the woman her son had raped and promised to drop the charges in exchange for money. L.T. told her that two me n had raped her,

but she was only abl

e to i dentify the defendant “because [he] was right in her face.” On cross-e xamination, Wi lliam s admitted that she had neve r met L.T. before

and did not recognize the voice on the phone as L.T.’ s. The defendant

then testified, admitting that he had severalprior convictions for robbery and burglary and had just finished serving his sentence on March 2 9, 1999 , the day that L.T. said he raped her. He testified that h

e arrived home f

rom prison at appr

oximately 9:30 p.m. that evening and askedhis mother for money to buy some “snacks.” She gave him seven or eight dollars, andhe left herhouse at ab out 10:00 p.m. to walk to a nearby Mapco store. En route, he saw two w ome n walking down Vance Street. Thinking they were prostitutes, he approached L.T. and asked if she was “w orking ” that night. He told L.T. that he could pay her only seven or eight dollars, and she eventually

agreed to this price. He said that L.T. initially said they could go to a “little apartment,” butbecause it was locked, the y went beh ind Vance School in stead. The defe

ndant described

his state of mind at the time he approached L.T.:

So in my mind, I ain’t fixing to give thi s girl no money. That’s al l, you know what I’m saying. Y’all can tell them I rub it in. I’m just being straightforward. I wasn’t fixing to give her no money. My thing – I was – I’m fixing

to deceive her a

nd manipulate her

. I’m just going to have sex with her. The defendant testified that he and L.T. struggled over the money during and after the encounter, and he ultimately took

the money from her shoe. Four months later, when he was arrested, he told the police, “I ain’t never been norapist. . . . I’ve been a robber . . . I burglarized . . . The issue is I didn’t rape.” The defendant theorized that L.T. accused him of rape out of revenge: “People kill for – just for revenge. I grew up in the hood, so I know. . . . [S]he just went to the extent about revenge. I didn’thave no – no remorse about ta king seven dollars

from her. So now she

going tothe – to the extreme.”-8-

The defendant also said that he voluntarily submitted to the DNA test,

and that although he and L.T. had sex, he did not rape her:

I’m just saying – I’mjus t saying – say [sic]ain’t never give me no DNA test or nothing. They asked did I volunteer – I volunteered for what I told you for what I did. I was honest about what I did. I hadsex with this girl. I never did rapeor forceor take nothing from her. I never did. Rape is by force. Iknow what rape is. Imanipulated the girl out of something. Making he

r think that I was go

ing to give her some money when I did give her the money, you kno w what I’m saying. I took the money back. As soon as she put it in her shoe, I took the money and told the girl to get up out of my face, you know what I’m saying. That’s what I did. The defendant said he had never met L.T. before March 29, 1999, andthat he never saw her again after that day. He test ified that he wrote L.T. from prison, apologizing for taking the seven dollars from her and offering for his mother to pay her. ANALYSIS As his sole issue on app

eal, the defend

ant argues that t

he ev idence presented at trial was ins ufficient

to support his convic

tion for rape. He

says that his convic

tion was base

d only on th e uncorroborated

testimony of L.T., which was unrelia ble and contradictory: L.T.’s testimony that her teacher, Gloria Taylor, told her grandmother about the incident conflicted with Taylor’s testimony that she had never spoken to L.T.’s grandmother about the incident; L.T. testified that the defendant was the second manto rape her while her written statement to the police stated that the defendant was the first of the two men to rape her; L.T. claimed that the living room window of the abandoned apartment where the rape occurred was not boarded up, but photographs show that the window was covered by a board; and L.T. stated tha t she was raped by

two men in

the apartment, yet, the vaginal swab contained DNA material belonging only to the defendant and L.T., rebutting her claim that a secondman also raped her. Additionally, he argues that L.T. suffered no physical injuries and that there was no evidence in the vacant apartment to substantiate her claim that the defendant

had been there or that a crime had been committed there. Where sufficiency of t

he convicting evid

ence is challeng

ed, th e re levant question of the reviewing court is “whether, after viewing the evidence in t he light most favorable to the prosecution, any rational trier of fact could have

found the essentia

l elements

of the crime

beyond a reasonable doubt.” Jackson v. Virgini a , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979); se e a lso State v. Pike , 978 S.W.2d 904, 914 (Tenn. 1998); Tenn. R. App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or jury shall be set aside if the evidence is insufficient to s upport the findings

by th e trier of fact of

guilt beyond a rea

sonable-9-

doubt.”). All questions involvi ng the credibility

of witnesses, the w

eight and value to

be given the evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas , 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). Jury v e rdicts in criminal cases are given considerable weight by the reviewing court. A guilty verdict

that is approved by

the trial judge ac

credits the testimo

ny of the State’s w

itnesses and resolves all conflicts in favor of the theory of the State. State v. Bigbee , 885 S.W.2d 797, 803 (Tenn. 1994). Our supreme court stated the rationale for this rule:

This well-settledrule rests on a sound foundation. The trialjudge andthe jury see the witnesses face to face, hear the ir testimony and observe their demeanor on thestand. Thus the trial judge and jury are the primary instrumentality of justice to determine the weight and credibility

to be given to the testimony of wi tnesses. I n the trial forum alone is there human a tmosphe re and the totality of the evidence canno

t be reproduced

with a written rec

ord in this Court. Bolinv. State , 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State , 370 S.W.2d 523, 527 (Tenn

. 196 3)). A guilty verdict removes the defendant’s initial presumption of innocence and replaces it with a presumption of guilt, so that on appeal, a convicted defendant

has the burden of demonstrating that the evidence is ins u fficient. See State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973). Tennessee Code Annotated section 39-13-503(a) defines rape as the following:

R ape is unlawful sexua

l penetration of a

victim by the defe

ndant o r of the defendant by a victim accompanied by any of the following circumstances: (1) Force or coerc

ion is used to accom

plish the act; (2) The sexual penetration is accomplished without the consent of the victim and the d

efendant knows o

r has reason to know at the time of the pe netrati on that the victim did not consent; (3) The defendant knows or has reason to know that the victim is mentally

defective, mentally incapacitated or physically helpless; or (4) The sexual penetration is accomplished by fraud.-10-

Tenn. Code Ann. § 39-13-503(a) (1997). The defendant was indicted u nder Tenne ssee Code Annotated section 39-13-503(a)(1). Taken in the light most fa vorable t o the State, the proof showed that the defendant and an unidentified man forced L.T. into an abandoned apartment and raped her. As soon as L.T. arrived home, she called her teacher and told her what had happened. L.T. also notified the police that night, showedthem the apartment were the rape occurred, and went to the MSARC, where evidence was collected for scientific analysis. At trial, L.T. identified the defendant as one of the men who raped her. Gloria Taylor, L.T.’s teacher, testified that she could tell that something bad hadhappened to L.T. when she called h

er on the evening

of March 29, 1999,

because L.T.’s

attitude had compl

etely changed. Patric

ia Speck of the MSAR

C testified that L.T. was examined on March 29, 1999, and that nonmotile sperm wa

s collected from h

er for further analysis. Officer Jimmy Daniels of the Memphis Police Department tes tified that L.T. gave him a written statement and identified the defendant from the mug books. Margaret Aiken testified that s he took a blood sample from the defendant with his consent. Donna Nelson, a TBI forensic scientist, performed DNA testing on the vaginal swabs from L.T. a nd the blood sample f

rom the defendan

t, which showed that the defendant was the contributor of the sperm. The defendant argues on ap pe al that, as a matter of law, this court should “discredit” the testimony of L.T. because it “was unreliable and contradicted other proof introduced by the State,” citing examples to support this contention. However, provi ding detai ls from the testimony of various witnesses to prove the alleged unreliability of the victim’s testimony demonstrates tha t all of these seeming contradictions were put before the jur y and available f

or its considerati

on in assessing the credibility of the witnesses. The

defense fully ventilated th

e alleged contra

dictions in the victim’s version of the fa cts. However, th

e jury resolved th

eseconflicts agains

t the defendant, as was t heir right. State v. Howard , 926 S.W.2d 579, 585 (Tenn. Crim. App. 1 996) (“[D]efe nse counsel was permitted to develop the inconsistencies in the victim’s testimony and cha llenge he r credibility

[and] [t]he jur

y’s decision to ac

credit the victim’ s te stimony w as within their prerogative.”). This court explained, in Statev. Radley , 29 S.W.3d 532 (Tenn. Crim. App. 1999), the showing which must be made as to the testimony of a witness before the verdict of a jury may be altered: The credible testimony of one identification wit ness is sufficient to support a conviction if the witness viewed the accused under such circumstances as would permit a positive identification to be made. See State v. Strickland , 885 S.W.2d 85 , 87-8 8 (Tenn. Crim. App. 1993). Inconsistency, inaccuracy and omissions in the description of a defendant by a witness who is otherwise able to positively identify the defendant are questions for the jury to consider in determining the weight to be given the testimony. See generally State v. Matthews , 805 S.W. 2d 776, 779 (Tenn. Crim. App. 1990). Further, although inconsistencies or inaccuracies may make the witness a less cre dible witness, the jury’s verdict will not be disturbed unless the-11- inaccuracies or inconsistencie s are so improbabl

e or unsatisfactory as to create a reasonable doubt of the appellant’s guilt. Id. at 537. Here, the victim positively id entified the defendant as one of the men who had raped her. The several seeming contradictions in the Stat e’s proof are insufficient to create doubt as to the defendant’s guilt of the offen se. Accordingly,

we respectfully

disa gree that th

e evidence was not sufficient to support the verdict of the jury. CONCLUSION Base d upon the foregoin

g authorities and r

easoning, we aff

irm the judgment of t

he trial court.

___________________________________ ALAN E. GLENN, JUDGE