FILED

June 17, 1998

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

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 BATEMAN, ) JUDGE

)

Appellant. ) (Direct Appeal - Rape of a Child)

FOR THE APPELLANT: FOR THE APPELLEE:

CLIFFORD K. MCGOWN JOHN KNOX WALKUP

113 North Court Square Attorney General and Reporter

Waverly, TN 37185

DEBORAH A. TULLIS

SHIPP R. WEEMS Assistant Attorney General

District Public Defender 425 Fifth Avenue North

CAREY THOMPSON Nashville, TN 37243

Assistant Dist. Public Defender

P. O. Box 160 DAN ALSOBROOKS

Charlotte, TN 37036-0160 District Attorney General

ROBERT WILSON

Assistant District Attorney

P. O. Box 580

Charlotte, TN 37036

OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
1

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 Dickson County jury convicted Appellant, David W ayne Bateman, of rape

of a child. After a sentencing hearing where the court did not find any mitigating

factors and found two enhancing factors, the trial court sentenced Appellant to

twenty-five years incarceration in the Tennessee Department of Correction to be

served at 100% pursuant to Tennessee Code Annotated § 40-35-501(I)(1) &(2).

In addition, the trial court found Appellant guilty of criminal contempt for an

obscene outburst at the sentencing hearing, and sentenced him to serve ten days

consecutive to his other sentence. In this appeal Appellant maintains the

evidence of his guilt is insufficient and that his sentence is excessive.

After a review of the record, we affirm the judgment of the trial court.

FACTS

At the time of the offense, Appellant was living with his uncle, Allen Brown,

along with Mr. Brown’s fam ily. On May 4, 1996, the Browns asked Appellant to

babysit their two children, ages eight and three.1 Appellant confessed that on that

evening, he penetrated the three year old female’s anus with his penis and

inserted his fingers into her vagina.

On June 12, 1996, the three year old was examined by Dr. Jeff Gordon. At

trial, Dr. Gordon qualified as an expert and testified that he determined the child’s
-3-

hymen was intact and her vaginal area normal. He further testified that he found

deep bruising in the child’s anus which circled the rectal opening. He opined that

this bruising was the result of a circular, firm object penetrating the child’s rectum.

He testified that such injury was consistent with the wounds one would expect to

see in a child who has been sodomized.

I. Sufficiency

Appellant challenges the sufficiency of the convicting evidence. When an

appellant challenges the sufficiency of the evidence, this Court is obliged to

review that challenge according to certain well-settled principles. A verdict of

guilty by the jury, approved by the trial judge, accredits the testimony of the

State’s witnesses and resolves all conflicts in the testimony 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). Although an accused is originally cloaked with a

presumption of innocence, a jury verdict removes this presumption and replaces

it with one of guilt. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence,

on appeal, the burden of proof rests with Appellant to demonstrate the

insufficiency of the convicting evidence. Id. On appeal, “the [S]tate is entitled to

the strongest legitimate view of the evidence as well as all reasonable and

legitimate inferences that may be drawn therefrom.” Id. (citing State v. Cabbage,

571 S.W.2d 832, 835 (Tenn. 1978)). Where the sufficiency of the evidence is

contested on appeal, the relevant question for the reviewing court is whether any

rational trier of fact could have found the accused guilty of every element of the

offense beyond a reasonable doubt. Harris, 839 S.W .2d 54, 75; Jackson v.

Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). In
-4-

conducting our evaluation of the convicting evidence, this Court is precluded from

reweighing or reconsidering the evidence. State v. Morgan, 929 S.W.2d 380, 383

(Tenn. Crim. App. 1996); State v. Mathews, 805 S.W.2d 776, 779 (Tenn. Crim.

App. 1990). Moreover, this Court may not substitute its own inferences “for those

drawn by the trier of fact from circum stantial evidence.” Id. at 779. Finally, the

Tennessee Rules of Appellate Procedure, Rule 13(e) provides, “findings of guilt

in criminal actions whether by the trial court or jury shall be set aside if the

evidence is insufficient to support the findings by the trier of fact beyond a

reasonable doubt.” See also State v. Mathews, 805 S.W.2d at 780.

Upon this record, we find ample evidence for the jury to have found

Appellant guilty of the crime as charged. This issue has no merit.

II. Sentencing

Appellant also challenges the length of the sentence imposed by the trial

court. When a defendant complains of his or her sentence, we must conduct a

de novo review with a presumption of correctness. Tenn. Code Ann. § 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 Commission

Comments. This presumption, however, is conditioned upon an affirmative

showing in the record that the trial court considered the sentencing principles and

all the relevant facts and circumstances. State v. Ashby, 823 S.W.2d 166, 169

(Tenn. 1991).
-5-

The Sentencing Reform Act of 1989 established specific procedures which

must be followed in sentencing. These procedures, codified at Tenn. Code Ann.

§ 40-35-210, mandated the court’s consideration of the following:

(1) The evidence, if any, received at the trial and the

sentencing hearing; (2) [t]he presentence report; (3) [t]he

principles of sentencing and arguments as to sentencing

alternatives; (4) [t]he nature and characteristics of the

criminal conduct involved; (5) [e]vidence and information

offered by the parties on the enhancement and mitigating

factors in §§ 40-35-113 and 40-35-114; and (6) [a]ny

statement the defendant wishes to make in his own behalf

about sentencing.

Tenn. Code Ann. § 40-35-210.

The Sentencing Reform Act also provides that the mid-range sentence

within the range is the presumptive sentence for this offense. The court must

begin with the mid-range sentence and enhance that sentence to appropriately

reflect any statutory enhancement factors that the court finds to be present. After

enhancing the sentence, the court must reduce the sentence appropriate to the

weight of any mitigating factors that the court finds. The weight to be given each

factor is left to the discretion of the trial judge. State v. Shelton, 854 S.W.2d 116,

123 (Tenn. Crim. App. 1992).

The Sentencing Reform Act also provides that the trial court shall place on

the record either orally or in writing what enhancement or m itigating factors it

found, if any. These findings are crucial for review of the trial court’s decision

upon appeal.
-6-

In the matter sub judice, Appellant contends that the trial court erred in not

considering the mitigating factor of Appellant’s youth in determining his sentence,

and in considering the two enhancement factors of particular vulnerability of the

victim due to age, and of Appellant’s abuse of a private position of trust. We do

not agree. Nothing in the record demonstrates that Appellant’s youth caused him

to be unaware of the potentially devastating consequences of his actions.

Further, it is apparent that the child’s tender age served to make her particularly

vulnerable to this type of offense in that she could not resist Appellant, nor could

she easily articulate what had occurred to her. See, State v. Poole, 945 S.W.2d

93, 96 (Tenn. 1997). Further, from the testimony presented at trial, and from

Appellant’s own statement, it is obvious that Appellant abused the position of

trust placed in him as a member of the victim’s household in order to accomplish

this crime. This issue is without merit.

Accordingly, the judgment of the trial court is affirmed.

____________________________________

JERRY L. SMITH, JUDGE

CONCUR:

___________________________________

GARY R. WADE, PRESIDING JUDGE

___________________________________

DAVID G. HAYES, JUDGE