### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs M ay 14, 2003
STATE OF TENN ESSEE v. JOHNNY D . ROBERTS
Appeal from the Criminal Court for Davidson County No. 2001-C-1812 Cheryl Blackburn, Judge

No. M2002-02996-CCA-R3-CD - F iled July 30, 2003

The defendant, Johnny D. Roberts, was c onvicted by a Da vid son County Criminal Court jury of aggravated

rape and aggr

avated sexual battery. The trial court merged

the defendant’s convictions into one conviction for

aggravated ra

pe and sentenced him as a Range I , violent offender to tw en tyfive yea rs in the Department of Correction. The defendant appeals, claiming that (1) the evidence is insufficient to support his convictions, (2) the trial court erroneously admitted into evidence a tape recording and transcript of the victim’s 9-1-1 telephone call to the police, (3) the trial court erred by failing to declare a mistrial after the prosecutor commented on the defendant’s failure to testify , and (4) the trial

court er red by refusin g to app ly a

mitigati ng fac tor in sen

tencing him . We affirm the judgment of conviction. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

J OSEPH M. T IPTON , J., delivered the opinion of the court, in which D AVID H. W ELLES and A LAN E. G LENN , JJ., joined.

Ross E. Alderman, District Public De fender ; J effrey A. DeVasher, Assistant Public Defender (on appeal); and L aura Dy

kes, Deputy

Public Defender

(at tria l), for th e appell ant, Johnny

D. Robert s.
Paul G. Sum mers, Att

orney Genera l and Repo

rter; Eli zabeth B . Marney , Assistan t Attorne y General ; Vi c tor S. Johnson, III , District Attorney Gene ral; and Bret Thomas Gunn, Assistant District Attorney General, for the appellee, State of Te nnessee.
OPINION

This case relatesto the defe

ndant’s a ttacking the victim

in the ea rly morning hours of Jul

y 28, 2001. The victim testified that she bought a condominium on July 25 and was moving boxes into it on the night of July 27. She sai d she arrived at the condo about 10:00 p.m. and started to leave about 1:00 a.m. o n July

28. She sa

id she we nt from he

r condo in

to the adjoining garage

where her
car was parked and began to ra ise the garage door ma

nually. She said that when the bottom of the garage door was about eye le vel, she saw the defendant, whom she did not know, standing outside.-2-

She said the defendant raised the door the rest of the w ay. She said that s he asked if she could help him but that he told her to shut up. She said that she told him to leave but that he entered the garag e. She said he came toward her, pulled down her shorts, and inse rted what felt like his fingers into her vagina. She said that as she tried to get away , they fell to the floor with the defendant on top of her. She said that

she scre amed at h

imto leave

but that he

kept telling her

to shut up. Sh

e said she bit his cheek and ear, scratc hed him, a nd kicked him in the chest. She said the defendant bled on her clothes and on the garage floor. She said he then got up and ran away

. The victim testified thatshe took the defendant’s hat and necklace, w hich he had left behind, and locked them inside her condo to prevent him from getting the m back. She said that she drove to a Walgr

een’s in order to telephone the police because she did not have a telephone in her c ondo. She said that Walg

reen’s was only

about one -half mil e away and that s he calle d the polic e within five minutes of the at tack. She waited at Walgreen’s for the police, a nd officers arrived a few minutes later. The victim returned to her condo with the police of ficers, and the officers collected her clothes and took photographs of her, her cl othes, and the area. She gave a statement to a detective in the Sex Ab use Unit a nd had bur

n marks f rom the conc rete on her el bows and a

nkles, scratches on her back, a busted lip, and other b ruises. Sh

e said she was bea ten up and

felt as if something had been put into her vagina. She said she did not go to the hospital for a medical exam at that time because her attacker only used his hand and therewas no semen to obtain. She said that
on July 31, she identified the defendant a s her attacker from a photograph a rray. A few day s later, she went to Dr . Barba

ra Kent, her per sonal phy sician. Sh e said she

told Dr. K

ent that s he was worried about con

tracting an infection or a d

isease from her attacker and that she had experienc ed vaginal irritation and discharge since the attack. On c ross-examination, the victim testified that the defendant was not wearing a disg uise and did not try to cover his fa ce. She acknowledged that he
was not wearing gloves and did not have a weapon. She also said he did not hit, kick, or choke her during the attack. She acknowl edged that in an earlier statemen t, she had said the defendant pulled her shorts down and penetrated her vag ina after they

had fallen onto the garag e floor.

Officer Michael Gooch of the Nashville Metropolitan Police Dep artment ( Metro Police) testifie d that he r

esponde d to a report of a woman screaming on the morning of July 28, 2001. He and another officer went to Walgree n’s and saw the victim, who was upset and had been cry ing. He went to the victim’s condominium, securedthe crime scene, and requested a K -9 unit, which started searching the area for the attacker. H e said a d etective from the Sex Abuse Unit arrived and questioned the victim . Office r Gooch w

rote the incident report in this case. On cross-examination, he said that a

ccordin g to his r

eport, officers that arrived after him were dispatched to the Walgreen’s to investigate an attempted rape.

Detective Marsha Brown of the Metr o Police testified that in July 2001, she worked in the Sex Abuse Un

it. She sai d that she

took the vi ctim’s st atement a nd told the victim

about poss ible medical treatme

nt for he r injurie s but that th

e victim declined to

go to the hospital. She sent blood collected at the scene, the victim’s clothing and fingernail scraping s, and a sample of the defendant’s blood to the Tennessee Bureau of I nvestigation Crime Laborator y. On cross -examinat

ion, she sa

id-3-

that it wa s importan

t to pe rfor m a me dica

l exa m as soon as possible after an attack and that she explained the importance of an exam to the victim.

Metro Police Of

ficer G eorge Bouton of

the I dentific ation Divi sio n testi fied that he took photographs and collected fingerp rints and a blood sa

mple from

the drive

way . On cros sexamination, he testified that he did not

find any blood in the g arage and that he listed the crime a s an attempted rape

based on the infor mation he had, although he

did not spe ak with the

victim.

Dr. Barbara Kent testified that she is a lic ensed ph

ysi cian in Te

nnessee and that t he victim is her patient. The victim came to her office on August 2, 200 1, com plain ing of v aginal disch arge and possible exposure to disease during an attack that had happene d a few day s ear lier. She examined the victim and found nothing unusual, except the victim’s complaint of discharge. She said that the insertion of a finger could have ca used the discharge but there was no r eason to treat it. On cross-examination, she testified that she was not able to determine if the vi ctim ’s dis charge was more or less than normal but that a pap smear did show vaginal irritation.

Detective Tom Jones testified that he saw the defendant after the defendant was arrested. He said the defendant had scratche s on his face and elbow and a cut on his right ea r.
Constance Howard, anexpert in se rology and DNA a

naly sis, testified that the blood on the victim’s clothing

matched th e defendant ’s DNA profile. She said the statistical probability of an unrelated, Caucasian individual having the same profile was 1 in 4.8 quadrillion. She was no t able to determine any

thing from the blood collected in the dr iveway or from th

e victim’ s finge

rnail scrapin gs. Based u

pon the ev

idence, the jury

convic ted the defendant of aggr avated rape and ag gr av at ed se xu al ba tt er y.
I. SUFFICIENCY OF THE EVIDENCE

The defendant contends that the evidence is insufficient to support his convictions. He argues that the state failed to prove the element of sexual penetration required for ag gravated rape and the element of sexual contact required for ag gravated sexual battery . The state contends that the evidence is sufficient. We agree with the state.

Our standard of review when the def endant questions the sufficiency of the evidence on appeal is “whe ther, after v iewing the evidence in the light most favorable to the prosecution, any rational trier of

fact could have f

ound the e ssential e

lements of

the crime

bey ond a rea sonable doubt.” Jackson v. V

irginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (197 9). We do not reweigh the evidenc e but pre sume that t he jury has reso lved all c onflicts in the testimony and drawn all
reasona ble inferences from the evidence in fa vor of the state. See State v. She ffield , 676 S. W .2d 542, 547 (Ten

n. 1984); Stat e v. Ca bbage , 571 S.W.2d 832, 835 (Tenn. 1978 ). Questions about witness credibility were

resolved by the

jury. See State v. Bland , 958 S.W.2d 651, 659 (Tenn. 1997).-4-

In order to prove the essential elements of aggra vated rape as alleged in the indictment, the state had to prove bey ond a reaso nable dou bt that the defenda nt unlawf ully sexually penetrated the victim and caused bodily injury

. See Tenn. Cod e Ann. § 39 -13-502( a)(2). “Sexual pe netratio n” is defined as an “intrusion, however slight, of any part of a p er so n’ s b od y . . . into the genital or anal openi ngs of the victim’s, the defendant’s, or any other person’s body .” Tenn. Code Ann. § 39-13- 501(7). “Bodily

injury” is defined as “a cut, abrasion, bruise, burn or dis figure ment; phy sical pa

in
or tempora ry illness or impairme

nt of the f unction of

a bodily member, organ, or mental faculty .” Tenn. Code Ann. § 39-11-106(a)(2).

To establish the offense of aggravated

sexual bat

tery as char ged in th e indictme

nt, the sta te had to prove that “there was unlawful sexual contact witha victim by the defe ndant” and that “the defendant caused b odily

injury to the vic tim .” Tenn. Code Ann. § 39-13-504(a)(2). “Sexual contact ” includes the “inte

ntional to uchi ng of the victim’s, the defendant’s, or any other person’s intimate parts, or t h e intentio nal touch ing of th e clothin g cove

ring the immediate

area of the victim ’s, the defendant’s, or any

other pe rson’s in timate parts, if that inten tional touc

hing ca n be rea sonably construedas being for the purpose of sexual arousal or g ra tification.” Tenn. Code Ann. § 39-13- 501(6). “ ‘Int

imate parts’ includes the primary genital area, groin, inner thigh, buttock or breast of a human being.” Tenn. Code Ann. § 39-13-501(2)

. Viewed in the light most favorable to the state, the evidence sho ws th at the defendant is guilty of aggravated ra

pe and aggrava

ted sexual battery. The victim’s uncontr overted testimony

is that the defendant

entere d her g arage

agains t her will a

nd penetr ated her vagina with his fingers. The victim also testi fied tha

t sh e suffere d various injuries during the crimes in question such as burn marks, scratc hes, and

a busted l

ip. She sai d th at she foug ht the defendant and that he bled on her clothes. Office

r Bouton testif ied that he saw the victim’s inj uries an d photog raphed t hem. Addit ional ly, Cons tance H oward, an ex pert i n sero logy and DNA a naly sis, testified that the blood
on the victim’s clothing matched the defe ndant’s D NA profi le and that the probability of someone elsehaving the same profile was extremely remote. Dr. Bar

bara Ke nt testified that the

victim ca me to her a few day s after the attack and complained of

vaginal discharge subseque nt to the attack. Dr. Kent also said that the insertion of fingers could have c aused the discharge. Detective Tom Jones testified that the d

efenda nt had inju

ries to his face, e

lbow, and ear. These injur

ies are consiste nt with the victim’s testimony that she bit the defendant on his cheek and ear.

In challenging the sufficien cy of the evidence for the agg ravated rape conviction, the defendant points toinconsistencies between the victim’s testimony and her statement to the police

. The victim’s testimony at trial was that the defe ndant penetrated

her vagina before they

fell to the floor, while her statement to the police was that penetration occurr ed after they

had fallen to th e floor. The defendan t clai ms that the victim alte

red her trial tes timony

because it was nea

rly impossible

for pene tration to occur w hile they strugg le d on t he floor. On cross-examination, the victim testified that her police statement on the morning of the at tack wa s slightly

incorrect beca

use of her troubled state of mind when she wrote it. We note that the jury hear d this testimony and knew the discrepancies between the victim’s statement and her testimony at trial, y

et determined that the-5-

defendant was guilty. The

weight and value to be given to the evide nce are resolved by

the trier of fact, not this court. State v. Pappas , 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). Regarding the defendant’s aggr avated sexual battery

conviction, he contends that the state didnot prove the element of sexual contact. Specifically , he claims that the evidence does not show that the contact was for the purpose of sexual arousal or gratification because the de fendant made
no sexu a l remarks to the victim and because “[there] is no evidence that the def endant fondled, massaged, rubbed, or other wise mani pulated h is hands in

a sexual ma

nner whe n he all egedly touched the victim.” However, the fact that the defendant struggled with the victim, pulled down her shor ts, and inserted his fingers into her vagina be lies the defendant’s claim. The evi d ence was sufficient for the jury to find bey

ond a reasonable doubt that the defe ndant inse

rted his f ingersinto the victim for the purpose of sexual arousal or gratifica tion.

II. AD MISS IBIL ITY O F THE 9 -1-1 T APE

The defendant contends that the trial court erred in a dmitting into evidence a

tape recording and transcr

ipt of the v

ictim’s te lephone c all to th e po lice. The state contends that the trial court properly a

dmitted the evidence. We agree with the state.

At trial, the prosecutor sought to introduce into evidence a tape recording of the victim’s 9-1- 1 call in which the victim told the police that a man had just attacked and “fing ered” her. The prosecutor

argued that the tape was an excited utterance and, therefore, a dmissible as an exception to the hear say

rule. The

defenda nt object ed, conte nding tha t the ta pe was bein g offe

red to corrobo rate th e v ic ti m’ s t es ti mo ny, which had not been attacked; that the prosecutor did not lay the proper foundation; and that the excited utterance exception to th e h ea rs ay r ul e d id no t a pp ly. The tr i al court allowed the prosecutor to recall the victim in order to lay the proper foundation for the introduction of the tape and then admitted the tape and its written transcript into evidence

. Three re quiremen ts must be met for a hearsay statement to be admissible as an excited utterance: (1) there must be a startling event or condition; (2) the s tate ment must relate to the startling event or condition; and (3) the statement must be made while the declar ant is un der the stress or excitem

ent from t

he even t or condition. Tenn . R. Evid . 803(2); State v. Gordon , 952 S.W.2d 817, 820 (Tenn. 1997). The “ultimate test” for determining the admissibility of an excited utte rance is “sp ontaneity and logical relation to the main event and where an act or declaration sprin gs out of the transaction while the parties are still laboring under the excitement and strain of the circumstances and at

a time so near it as to preclude the idea of deliberation and f abrication.” State v. Smith , 857 S.W.2d 1 , 9 (Tenn . 1993). O ther relevant c onsidera tions inclu de: (1) th

e time interval between the startling event and the s tatement; (2) the nature and seriousness of the condition; (3) the appearance, behavior, outlook, and the c ircumstances of the declarant, including characteristics such as age, phy sical condition, and mental condition; and (4) the contents of the statemen t, which may indicate

the presenceor absence of stress. Gordon , 952 S.W.2d at 820. The rationa le behind the excited utterance exception is that the

hearsa y st atement i s reliabl e becau se it is made when time for reflection and possible fabrication are lacking and memory of the ev ent is still-6-

fresh in the declarant’s mind. Id. at 819-20 (citing Neil P. Cohen et al., Tennessee Law of Evidence , §803(2).1, at 532 (3d ed. 1995)).

The defenda

nt does not

contest th

e first tw o requir

ements, but does contend t hat the vi ctim was no longer under stress or excitement when making the statement. I n support of his ar gument, the defenda

nt points to t

he fact that afte r the cr imes in que stion, the

victim unlocked her door, placed the defendant’s hat

and necklace inside

her condo, locked the door again, a nd drove to a Walgreen’s to call the police. However, the victim testified that she telephoned the police within five minutes of being attacked. Moreover, we have listened to the 9-1-1 tape a nd, although the victim sounded calm at first, she began cry

ing during the call. We note that the fac t that a

measure of calm returns to the declarant does not prevent the application of Tenn. R. Evid. 803(2). See, e.g. , State v. Smith , 868 S.W.2d

561, 5 74 (T enn. 1993) . Weconclude that it wa s reason able for the trial court to h old that the victim was operating under stress or excitement at the time of the 9-1-1 call and that

the trial court properly

admitted the tape and transcript into evidence.

III. CLOSING ARGUMENT

The defendant contends that the prosecutor improperly commented on the defendant’s decision not to testify and that the trial court should have sua sponte granted a mistrial. The state contends that because the defendant did not request a mistrial, the issue is waived and that, in any event, th e trial court’s curative instruction was sufficient to safeg uard the defendant from the comment’s prejudicial effect, if any . We agree with the state.

In his closing

argume nt, the prosecu

tor state d, “Now, let’s tal

k about wh at [the vic tim] did
sa y, because she’s the

only one that gave a version of what happened. She’s the person who told you what happened.” The defendant objecte d, arguing that the pro secutor h ad commented on the defendant’s right not to testify, and the tr ial court responded with the following curative instruction:

All right. Ladies and ge

ntlemen, you are to disre gard the last remarks of counsel. Again, counsel’s statements are not ev id ence and are intended just to assi st y ou. The de fendant is not r equired to testify and y ou can ma

ke no infe rence f rom that f act.
Under the Fifth Amendment, argument reg ard ing the defe ndant’s f ailure to testify is improper. Griffin v. Califo rn ia , 380 U.S. 609, 615, 85 S. Ct. 1229, 1233 (1965). However, prosecutorial misconduct does not constitute

revers ible err

or unless the outco me was affected to the defendant’s prejudice. State v. Bane , 57 S. W. 3d 411, 425 (Tenn. 2001). In Judge v. St ate , 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976), this co u rt set out the following considerations for determining whether the state’s conduct or ar gument coul d have prejudiced the defendant and affec ted the ve

rdict:

1. The con duct complained of viewed in context and in light of the facts and circumstances of the case

.-7- 2. The curative measures undertaken by the court and the

prosecution.

3. The inte

nt of the p

rosecut or in making the imp

roper st atement.
4. The cumulative effect of the improper conduct and any other e

rrors in the record. 5. The relative strength or weakne ss of the case.

See also State v. Buck , 670 S.W.2d 600, 609 (Tenn. 1984) (approving these factors in determining if the misconduct resulted in reversible error).

Alth ough we acknowledge the rea sonableness of the inference that the defe ndant draws from the prosecutor’ s com ment, we hesitate to say that the prosecutor intended that inference. I n any event, the trial court’s curative instruction was sufficient to correct any possi ble prejudice that resulted from the s tatement . The jury ’s complia nce with the instructi on by

the trial court is presumed. Statev. Vanzant , 659 S.W.2d 8 16 (Tenn . Crim. App . 1983); Frazier v. State , 566 S.W.2d 545 (Ten n. Cri m. App . 1977 ). We

conclude that

the comment did not affect the verdict and does not require reversal.

The defendant also claims that the prosecutor’s statement shifted the burde n of proof to the defense. We di sa gr ee . D ur in g i ts in st ru ct io n t o t he ju ry, the trial court stated that the “state has the burden of proving the guil t of the de fendant bey ond a rea sonable d

oubt, and this burden never shi fts butremains on the state throughout the trial of the case.” In light of this instruction, the prosecutor’s comment did not shift the burden of proof in this case. The defendant is not entitled to relief.
IV. SENTENCING

Fi na ll y, the defe

ndant con tends tha t his twenty-five- year se

ntence is excessive because the trial court failed to consider an applicable mitigating factor regardi ng h is conduct not causing or threatening se ri ou s b od il y in ju ry. The st ate claims that the trial court properly sentenced the defendant. We conclude that the defendant’s twe nty-five-y ear sentence is proper. Appellat e review of senten cing is de novo on the record with a presumption that the trial court’s determinations are correct. Tenn. Code Ann. §§ 40-35 -401(d) and -402(d). As the Sentencing Commission Comments to these sections note, the burden isnow on the appealing par

ty to show that the sentence is improper. This means that if the trial court followed the statutory sentencing procedure, made finding s of fac t that are adequately supported in the record, and gave due consideration and proper weight to the factors and prin ciples that are relevant to sentencing under the 1989 Sentencing Act, we may not disturb the sentence even if a different result were preferred. State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).-8-

Howe ver, “the presumpt ion of cor

rectne ss which a

ccompan ies the tr ial cour t’s actio n is conditioned upon the affirmative showing in the record that the tria l court considered

the sentencing principles and all relevant facts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). In this respect, for the pur pose of meaningful appellate review , the trial court must place on the record its reasons for ar riving at the final sentencing decision, i dentif y the mitigating

and enhancement factors found, sta

te the specific fa

cts s upporting each enhancement factor found, and articulate how the mitigation and enhance ment fac tors have be en evalu ated and balance d in deter

mining the sentence

. State v. Jones , 883 S.W.2d 597, 599 (Tenn. 1994).
Also, in con ducti ng a de novo review, we must consider (1) the evidence , if any, received at the tr ial an d sentencing hearing, (2) the presentence report, (3) the princ iples of sentencing and argume nts as to sent

encing alterna tives, (4) the nature and characte ristics of the cr

iminal conduct, (5) any mitig ating or statutory enhancement factors, (6) any statement that the defendant made on his own behalf, and (7) the potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -21 0; see Ashby , 823 S.W.2d a t 168; State v. Mo ss , 727 S.W.2d 229 (Tenn. 1986).

The sentence to be imposed by the trial court for a Class A felony is presumptively the midpoint in the range when there ar e no enhancement or mitigating fa ctors present. Tenn. Code Ann. § 40-35-210(c). Procedurally, the trial court is to increase the sentence within the rang e based upon the existence of enhancement factors and then re duce the sentence as appropriate f or any mit igating factor s. Tenn. Co de Ann. § 4 0-35-210 (d), (e ). The we ight to be afford ed an exist

i n g factor is left to the trial court’s discretion so long as it complies with thepurposes andprinciples of the 1989 Sentencing Act and its findings are ade quately supported by

the record. Tenn. Code Ann. § 40-35-210, Sentenci ng Commission Co mments; Moss , 727 S.W.2d a t 237; see Ashby , 823 S.W.2d at 169.

No witnesse s testifie d at the se ntencing hearing , but a

presentence report was admitted i nto evidence. According to the report, the defe ndant has prior convictions for attempted rape, indecent exposure, assault, burglary , and many other of fe nses. The report reflects that the defendant committed some of these offenses while he was on probationand that his probation has been revoked three times. The trial court found enhancement factor (1), that the defendant has a previous history of criminal convicti ons or cr

iminal beh avior in a

ddition to those nece ssary to establi sh th e appropr iaterange , and factor (8), that the d efenda nt has a pr

evious h ist ory of unwilli ngness to comply with the co nd itions of a sentenc e involvin g rele ase in the community , applied

to his1 The legislature’ s 2002 am endment to Tenn. Code Ann. §40-35- 114 added as the new en hance ment factor (1)

that t he “offense was an ac t of terro rism” b ut chan ged the existing enhan cem ent facto rs only in inc reasing their designating number

by one . Thus , f

ormer e nhanc ement

fac tor ( 1) is now enh ancemen t f actor (2) a nd fa ctor

(8) i s now factor (9).
-9- sentence. See Tenn. Code Ann. § 40-35-114(1), (8) (Supp. 2001) (amended 2002). 1 The trial court stated tha t factor (1) was e ntitled to g

reat we ight.

The defendant argued that the trial cour t should apply mitigating f actor (1), that his conduct neither ca us ed no r t hr ea te ne d s er io us bo di ly i nj ur y. See Tenn. Code Ann. § 40-35-113(1). The trial court determined that a

lthough t he defe ndant did not cause serious bodily injury , the threat of serious bodily injury existed be cause th

e victim ha

d resiste d the atta

ck. Thus, the trial court held that no mitigati ng fa ctors applied and sentenced the defenda nt to twenty-five y

ears, the maximum punishment in the range.

On appeal, the defendant does not challenge the applicability of the enhancement factors but claims that mitigating factor (1) applies to his sentence. We disagree. Tenn. Code Ann. § 39-11- 106(34) states that serious bodily injury involves (A) A sub stantial r

isk of dea th; (B) Pro tracted

unconsc iousness; (C) Extrem

e phy sical pa

in; (D) Protracted or obvious disfigurement; or (E) Protracted loss or

substantial impairment of a functi on of a bo dily member, organ or mental faculty

. Psychologica

l pr ob le ms ca n c on st it ut e s er io us bo di ly i nj ur y. State v. Smith , 910 S.W.2d 457, 461 (Tenn. Crim. App. 1995).

The defendant

notes that the victim’s injuries were not serious and that the record does not indicate that he, by wordsor actions, ever threatened serious bodily injury. However , the defendant penetrated

the victim by use of forc e and ph ysical violence. T he victim’s resistance could have resulted in more serious injuries, but the defendant bears the

brunt of the threat of such injuries by his use of violence. We acknowledge that the de fendant ended the attack, but we do not believe that the evidence preponderates against the trial cour t’s findings regarding this fa ctor. In any

event, we believe the presence of the two enhancement

factors and the significant weig ht they deserve

justify the imposition of the twenty-five-y ear sentence. Based on the foregoing

and the record as a whole, we af firm the judgment of conviction.

___________________________________ JOSEPH M. TIPTON, JUDGE