It i s t he p o l i cy o f t his co urt t o i d en t i f

y m i no r victi m s o f

sexu al crim es o nly b y t he i r i nit i als. 1 

### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs Ma y 3, 200 5
STA TE OF TEN NES SEE v. MA ND ELL B ENT ON
Appeal f romthe Cr im inal Cou rt for Shelby Coun ty No. 02-01153 Ber nie Weinm an, Jud ge

No. W2002-02257-C CA-R 3-CD - F iled Augu st 29, 2005

The de fenda nt, Ma ndel Be nton, who was orig inally char g ed with statutory

rape , was c onvicted of attempted statutory

rape

. The trial court im posed a sentenc e of one hundred and eighty day s to be
se rv e d in the c ou nty

ja il. I n t hi s app e a l, the de fe nd a nt a sse rt s th a t th e e vid e nc e is i ns uf fi c ie nt t o support the conviction. The judgme nt is affirmed.

Tenn. R. App . P . 3; Judgme nt of th e Trial Court Affirm ed

G AR Y R. W ADE , P. J. , d e li v e r e d th e o p in io n o f th e c o u r t, in w hich D AVI D H. W EL L ES and J OHN E VE R E TT W I L L I AMS , J J ., joined.

J ames F . Schaef

fer , J r., Memphis, Tenne ssee, f or the a ppellant, Mande ll Benton.
Paul G. Summers, A ttorney Gene ral & Reporter , Renee W. Turner, Assistant Attorney Gene ral; and Michae l L eavitt, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

. OP IN ION

On J une 29, 2001, the f

ourtee n-y ear -old victim, A

. F. , wa s l iving with her mother, He len 1 F or d, in Me mph is

. S h o r t l y a f t e r h e r m o t h e r l e f tf o r w o rk i n t h e e ar l y

m o r n i n g h o u r s , t h e v i c t im telephoned a

"c hat line" and spoke w i t h t he def endant, who ide ntified himself as " Mario." The victim invit ed Mario to her re sidence and he a rrived a pproxi mately

fiftee n minutes later. While the two wer e sexually

eng ag ed, a ne ighbor , Shermida F ields, interrupted the m and orde red the defe ndant to leave. When Ms. F ields informed the vic tim's mother, He len For d, of the incide nt, t h e mot her called police , and the de fenda nt was later char g ed with statutory

rape

. At trial, the victim testified that afte r her mother, who wa s working the 3:00 a.m. to 12:00 p.m. shift, left for wor

k, she telephone d the "ch at l i n e" an d had a c onversation with a man who ide nti fi e d h ims e lf

a s " Ma ri o, " wh o c la ime d th a t he was ni ne te e n y e ars old . T he vic tim-2-

a c kn ow le dg e d th a t sh e inv ite d him to he r re sid e nc e a nd wa s we ari ng on ly a t- sh irt w he n s he me t hi m at the door. She maintained that she told the defe ndant her ag e. Ac cording to the victim, the two watche d tel evision for a

few minutes before they went into her be droom. She testified that the defe ndant aske d her to g ive him a massag e, fondle d her breast under her shirt, and, after she rolled
ov er, att emp ted to p e ne tr a te he r v a g ina wi th h is p e nis . Sh e ini tia lly sa id that th e de fe nd a nt d id penetr ate he r vag ina " for a bout three se conds" befor e she told him to "move." L ater , she explained that the def

endant did not pene trate her vagina beca use he w as in " the wrong spot." Still l ater in her testimony , she expressed unc erta inty as to whethe r the de fenda nt had pene trated he r.
Th e vic tim

re c a lle d th a t sh e he arda kn oc k at th e do or

jus t a ft e r s he tol d th e de fendan t to "move ." She stated that she he lped the def endant hide in he r closet befor e answ ering the door. She testified that her neig hbor, Shermida Fields, who was at the door, aske d the victim what was g oing on and the victim re plied, "N othing." Acc ording to the victim, Ms. Fields walked throug h the door d i re ct l y t o t h e v i ct i m 's b ed ro o mwh er e s h e s aw o n e o f t h e d ef en d an t 's s h o es l y i n g n ea r t h e v i ct i m 's be d. Ms. F ie lds op e ne d th e c los e t door , ask e d the de fe nd a nt his na me a nda g e , a ndor de re d h im t o leave . The victim rec alled that Ms. F ields took the defe ndant' s wallet, which wa s ly ing on the floor, and put it in her bra. The victim late r learned from Ms. F ields that the defe ndant was thirty y ear s old.

The victim testified that on the foll owing day , Ms. Fields reported the incident t o her mother and her mother ca lled the police. She r eca ll ed that she we nt to the Sex ual Assault Center f or an examination. The victim re iterate d that the defe ndant was awa re that she was only

fourtee n y ear s old.
During cross-e x amination, the victim conce ded that s h e k n ew that the " chat line" she had
c a lle d w a s f

or a du lts on ly . Sh e a dmi tte d th a t she inv ite d the de fe nd a nt t o h e r r e sid e nc e a ndwi lli ng ly le t hi m in sid e . Sh e a c kn ow le dg e d th a t th e de fe nd a nt d id n ot p e ne tr a te he r vagin a wi th his pe nis

. The victim conc eded that she had invited other boy s to he r house while her mother was at work and that she had be en involved with other se x ual partners. She also a cknowl ed ged t h at s he wa s diag nosed with a sexually transmitted disease during her ex amination at the Sexual Assault Center
a nda dmi tte d th a t sh e didno t c on tr a c t th e dis e a se fr om the de fe nd a nt.

Shermida F ields testified that Ms. Ford had asked her to ke ep an ey e on the victim while she
was at work. She re called that on the morning of t h e o ff en s e, she was che cking in on her own children w hen she hear d voices c oming f rom the victim' s bedroom, which w as on the other side of the wall. Ac cording to Ms. Fields, she put her ear to the wall and whe n she hea rd a ma n' s voice she walked to the vic tim's re sidence and knocked on the door. Ms. F ields stated that the victim did not
a ns we r the do or

imm e diate ly

a ndwh e n she fi na lly c a me to the do or , she wa s dre sse d in only a t- sh irt. She testified that she e ntere d the residence, saw a man' s shoe ly ing on the floor nea r the victim' s bed, and discove red the defe ndant hiding in the vic tim's closet. Ms. F ields testifi ed t h at t he def endant claimed that his name was "Mike" and that he w as ninetee n y ear s old. She stated that she picke d up the de fe nd a nt' s w a lle t a ndpu t it ins ide he r s hirt.-3-

Ms. F ie lds e xpla ine d th a t sh e didnot c a ll thepo lic e imm e diate ly be c a us e sh e fe lt that it would be more appropriate to a llow the victim's mother to " handle" the situation. She said that she
wa s un able to t e le ph on e the vic tim ' s mo the r at w or k b e c a us e the vic tim

" a ll o f a su dd e n g ot amne sia and . . . didn' t know the number." Ms. Fields testified that she i n fo rm ed M s

. For d of the incide nt when she returne d home later that day and the victim' s mother ca lled the police. She rec alled that when the police arrived, she g ave a statement and turne d over t h e d ef endant' s wallet. She later trave led with the victim and her mother to the Sexual Assault Center. During cross-examination, Ms. Field' s acknow ledg ed that she ha d discovere d the victim with a boy in her room on one other
occa sion.

Helen F ord testified that she left for wor k at 2:40 a.m. on the day

of the off ense a nd that the victim was in bed at that time. She stated that whe n her shift e nded at n o o n , she telephone d the victim and went to a mall bef ore r eturning to her re sidence that afternoon. She re called that the victim was ac ting " a little differ ent" and that, shortly there afte r, Ms. F ields arrived and informed he r of what had happe ned ea rlier that morning . Acc ording to Ms. Ford , s h e became ang ry , told the victim that she could no long er live w ith her, and c alled the police to come and ta ke the victim. She stated that when t h e p olice ar rived a nd learned what had happe ned, they direc ted her

to take the victim to the Sex ual Assault Center. Ms. F ord ac knowledg ed that the victim admitted having had
se x withoth e r b oy s. Nina Sublette, a nur se pra ctitioner fr om the Memphis Sex ual Assault C enter , testified that she per formed an examination of the victim. Acc ording to Ms. Sublette, the victim had suffe red no ph y sic a l in

jurie s a nd bo re no ph y sic a l ma nif e statio ns of a se xua l a ssa

ult . Sh e state d th a t th e vic tim tested positive for a

sexuallytransmitted disease but that she did not contrac t the disease f rom her
e nc ou nte r w ith the de fe nd a nt.

I n th is a pp e al, the d e fe nd a nt a sse rt s th a t th e e vid e nc e wa s in su ff ic ie nt t o s up po rt

his
c on vic tio n. On app e a l, the state is e nti tle d to the str on g e st le g iti ma te vie w of the e vid e nc e a nda ll
rea sonable i n f

e r e n c e s w h ic h mi g h t b e d r a w n th e r e f r o m. St a te v

. Ca

b b a g e , 5 7 1 S. W. 2 d 8 3 2 , 8 35 (Tenn. 1978)

. T h e cre dibilit y of the witnesse s, the weig ht to be g iven their testimony , and the
rec onciliation of conflicts in the proof are matters entr

usted to the jury as the trier of fac t. By rg e v. Sta te , 5 75 S.W. 2d

29 2, 29 5 ( Te nn . Crim. Ap p. 19 78 ). Whe n th e su ff ic ie nc y of th e evi den c e is
c ha lle ng e d, the re le va nt q ue sti on is w he the r, a ft e r r e vie wi ng the e vid e nc e in the lig ht m os t f a vo ra ble to the state, any rational trier of fa ct could have found the e ssential elements of the crime be y ond a
rea sonable doubt. Tenn. R. App. P. 13(e ); State v. Wil liams, 657 S.W .2d 405, 410 (Tenn. 1983). B e c a us e a ve rd ic t of

g uil t a g a ins t a

de fe nd a nt r emo ves th e pr e su mpt ion of inn oc e nc e a ndraise s a presumption of g uilt, the convicted criminal defe ndant bears t he burden of showing t hat the evide nce was leg ally

insufficient to sustain a gu i l t y verdic t. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992).

The de fenda nt was convic ted of attempte d statutory rape . "Statutory

rape is sex ual pe ne tr a tio n o f a

vic tim by the de fe nd a nt o r o f the de fe nd a nt by the vic tim wh e n th e vic tim is at le a st-4-

thirteen (13) but le ss tha n eig hteen (18) y ear s of ag e and the defe ndant is at least four (4) y ear s older than th e vic tim ." At te mpt , a s a pp lic able in this c a se , is de fi ne d a s f oll ow s: (a) A per son commits criminal attempt who, acting with the kind of culpability

otherwise r equire d for the of fense : *** (3 ) A c ts w ith int e nt t o c omp le te a c ou rs e of a c tio n or c a us e a re su lt that w ou ld constitute the offe nse, under the circ umstances surr ounding the conduct a s the person beli ev es them to be, and the c onduct constitutes a substantial step towar d the commission of the offe nse. (b) Conduct doe s not constitute a s u b s tantial step under subdivision (a) (3) unless the per son' s entire course of ac tion is corroborative of the intent to commit the offe nse. Tenn. Code Ann. § 39- 12-101(a )(3) , (b).
The proof adduce d at trial established that the victim spoke with t h e d ef en d ant on a "chat lin e " a ndinv ite d h im t o he r re sid e nc e , wh e re the y ha d a se xua l e nc ou nte r. Ac c or din g to the vic tim , the def endant attempted to pe netrate her vag ina with his penis. Whil e the victim g ave inc onsistent statements w i t h re gar d to whether the def endant wa s succe ssful in his efforts, her unqualified testimonywas that he had attempted pe netration. Although she initially spoke with the def

endant on a " chat line" that was for adults only , the victim testified that she told the defe ndant that she wa s on ly fo urte e n y e ars old

. Othe r pr oo f es ta bli sh e d tha t the de fe nd a nt wa s thirty y e ars old a t the tim e of the off en s e. T he jury

acc redited the testimonyof the victim. That wa s their pre rog ative. See Sta te v. Sum me ra ll, 92 6 S. W.2 d 2 72 , 275 (T e nn . Crim. Ap p. 19 95 ). I n o ur vie w, the e vid e nc e is sufficie nt to support the conviction for attempted statutory rape

.

___________________________________ GARY R. WADE, PRES I DING JUDGE