# FILED
June 17, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE MAY SESSION, 1998 STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9710-CC-00443 ) Appellee, ) ) ) DICKSON COUNTY VS. ) ) HON. ROBERT BURCH DAVID WAYNE BATE MAN, ) JUDGE ) Appe llant. ) (Direct Appeal -

Rape of a Chil d)

FOR THE APPELLANT : FOR THE APPELLEE : CLIF FORD K. MCGOWN JOHN KNOX WALKUP 113 North Court Squ are Attorney Generaland Reporter Wa verly, TN 37185 DEB ORA H A. T ULLIS SHIPP R. WEEMS Assistant Attorney General Distri ct Public

Defender 425 Fifth Avenu e North CAREY THOM PSON Nashvill e, TN 37243 Assistant Dist. Publ ic Defender P. O. Box 160 DAN ALSOBROOKS Charlotte, TN 37036-0160 Distri ct Attorney General ROBERT WILS ON Assistant Distri ct Attorney P. O. Box 580 Charlotte, TN 37036
OPINION FILED ________________________ AFFIRMED JERRY L . SMI TH, J UDGE1 It is policy of this C ourt to pro tect the iden tity of the child victim s of sex ual assa ult. -2- 

## OPINION

A D ickson Co unty jury convicted A ppellant, David W ayn e Bateman, of rap e of a child. After a sentencing heari ng where the court did not f ind any miti gating factors and found tw o enha ncing fac tors, the trial co urt sente nced A ppellant to twenty-five years incar ceration i n the Tennessee Department of Corr ection to be served at 100% pursuantto Tennessee Code Annotated § 40-35-50 1(I)(1) &(2). In additio n, the tria l court fo und A ppell a nt guilt y of cri minal contempt f or an obscene outburstat the sentencing h earing, and se ntenced him to serve ten days
consecu tive to his ot her sentence. In thi s app e al Appellant maintains t he evidence of hi s guilt

is insuf ficien t and that h is sentence i s excessive.

After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.

FACTS

At the time of

the offense, Appellant was l iving wi th his uncl e, Allen Brown, along with Mr. Br own’s fam ily. On Ma y 4, 1996 , the Brow ns aske d Appe llant to babys it their t

wo children, ages eight and three. 1 Appellant confessed that on that evening, he penetra ted the three year old femal e’s anus wit h his penis and inserted hi s fingers

into her v

agina.

On June 12, 1996, the thr ee year old was examin ed by Dr . Jef

f Gordo n. At trial, Dr. Gordon qualified as an exp ert and testi fied that he determined the ch ild’s-3-

hymen was intact

and hervaginal ar

ea normal. He fur

thertestified that h e found deep bruisingin the chi ld’s anuswhich cir cled the re ctal openi ng. He opined that this bruising w as the re sult of a ci rcu lar , f ir m obj ect penetrati ng t he c hil d’s rec tum. He testified that such injury was c onsisten t with the wou nds on e would expect to see in a chil d who has been sodomized.

I. Suffi ciency
Appellant

challenges t he suffi ciency of the convicti ng evidence. When an appe ll ant challe nges the su fficienc y of the e videnc e, this C ourt is o blig ed t o review that challenge a ccording to ce rtain well-s et tled pri nciples. A verdict of guilty by the jury, approved by the tri al judge, a ccredits the testi mony of the State ’s witnesses and r esolves al l confl icts i n the test imony in favor of the State. State v. Cazes , 875 S.W.2d 253, 259 (Tenn. 1994); State v. Harris, 839 S.W.2d 54, 75 (Tenn . 1992) . Al though an accused is or iginal ly cloaked with a presumption of innocence, a jury verdict r emoves this pres umption and replaces it wit h one of guilt. State v. Tug gle , 639 S.W.2d 913, 914 (Tenn. 19 82). Hence,
on appeal, t he burden of proof rests with Appellant t o de monstrate the insuffi ciency of

the conv icting evide nce. Id. On a ppea l, “the [S ]tate is entitled to the strong est leg itim ate vi ew o f the evi dence as well as all reaso nable and legitimate inference s that ma y be draw n therefro m.” Id . ( citing State v. Cabbage , 571 S.W .2d 832, 835 (Tenn. 197 8)). Wh ere the sufficiency of the evi d ence is contested on appea l, the relevant question for the reviewing cou rt is whether any rationaltrier

of fact could have fou nd the accused gui lty of every el ement of the offense beyond a reasonab le doub t. Harris , 839 S.W .2d 54, 75 ; Jackson v. Virgin ia , 443 U .S. 307, 3 19, 99 S .Ct. 2781 , 2789, 61 L.Ed.2d 560 (19 79). In-4-

conducting ourevalua tion of th e con victing e videnc e, this C ourt is precluded f rom reweighing or recon sidering th e eviden ce. State v. Morgan , 929 S.W.2d 380, 383 (Tenn . Crim. A pp. 199 6); State v . Mathews , 805 S.W.2d 776, 779 (Tenn. Cri m. App. 1990). Moreover , this Court may not subs titute its own inferences “f or those d rawn by the trier of fact from circum stantial evidence.” Id. at 779 . Finally , th e Tennessee Rules of Appellate Procedure, Rule 13(e) pr ovides, “finding s of gu ilt in criminalactions whet her by the t rial cour t or jur y shall beset aside if the evidence is insufficient to suppo rt t he find in gs by the trier of f act beyond a reasonab le doubt.” See also State v . Mathews , 805 S.W.2d at 780.
Up on this record, we fi nd ample evidence for the jur y to h ave foun d Appe llant guilty of the crime a s charg ed. Th is issue ha s no m erit.

II. Sentencing
Appellant

also chall enges the lengt h of the sentence imposed by the t rial court. When a defendant com plains of his or her s entenc e, we m ust cond uct a denovoreview wi th a presumpti on of correct ness. Tenn. Code An n. § 40-35- 401(d). The burden of showing that the sentence is improper is upon the appealing party. Tenn . Code Ann. § 40-35-401( d) Sentencing Commissi on Comme nts. This pre sump tion, howe ver, is cond itioned up on an a ffirmati v e showing in the record t hat the trial court consi dered the sente ncing pri nciples and all the releva nt facts an d circum stance s. State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 19 91).-5- The Sentencing Reform Act of 1989 established specifi c procedures which must be foll owed in sentenci ng. These procedures, codifi ed at Tenn. Code Ann. § 40-35-210, mandated the court’ s considerat ion of thefollowi ng: (1 ) The evidence, i f any, r eceived at t he trialand the sentencing hearing; (2) [t]he pr esentence report ; (3) [ t]he principl es of senten cing and argum ents as to sentencing alternatives; (4) [t]he na ture and characteri stics of the criminal conduct involved ; (5) [e]vi den ce and information offered by the parti es on the enhancementand mitigat ing factors in §§ 40-35-113 and 40-35-114 ; and (6) [a] ny statementthe de fenda nt wish es to m ake in his own b ehalf about sentenci ng. Tenn. Code Ann. § 40-35-210.

The Sentencing Reform Act also provi des that t he mi d-range sentence within the range is

the presumpti ve sentence fo r this offense. The court must begin w ith the mid-range s entence and enha nce th at sen tence to app ropria tely reflect any statutory enhancementfactors that the court finds to be pr esent. After enhancing the sentence, the court must reduce the sentence appropriate to the weightof any m itigating facto rs that the c ourt finds. T he weig ht to be given each factor is lef t to the di scretion of the trial judge. State v. Shelton , 854 S.W.2d 116, 123 (Ten n. Crim. App . 1992).

The Sentencing Reform Act also provi des that t he trialcourt shal l place on the r eco rd eithe r orally o r in writing what e nhan cem ent or m itigating factors it found, if any. These finding s are crucial for review o f the trial court ’s deci sion upon appe al.-6- In the matter su b judice, Appellant contends that the tri al court erred in not consideri ng the miti gating fac tor of Appel lant’s

youth in determining his sentence, and in considering the two enhancement factor s of parti cular vul nerability of t he victim due to age , and o f Appe llant’s abuse of a pri vate posit ion of trust. We do not agree. Nothing in the rec ord dem onstra tes tha t Appe llant’s yo uth ca used him to be unaw are o f the potential ly devastati ng consequences of his actions. Further, it is

apparent that

the child’s te nder ag e served to mak e her p articula rly vulner able to this typ e of offe nse in that sh e cou ld not re sist Ap pellan t, nor co uld she easily ar

ticulate whathad oc curred to her. See , State v. Poo le , 945 S.W.2d 93, 96 (Te nn. 199 7). Furthe r, from the testimon y presen ted at tr ial, and from A ppel lant’s own statement, it is obvious that

Appellant abus ed the posit ion of trustplaced in him as a member of the victim’s household i n order to accomplish this crime . This issu e is withou t merit.
Accordingly , the judg ment of the t rial cour t is af firmed.

____________________________________ JERRY L . SMI TH, J UDGE
CONCUR:

___________________________________ GARY R. WADE, PRESI DING J UDGE

___________________________________ DAVID G. HAY ES, J UDGE