# FILED
March 24, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON JANUA RY 1999 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. No. 02C01-9806- CC-00179 Appellee, ) ) Carroll County V. ) ) Honorable C. Creed M cGinley, Judge ) JAMES A LFRED ANDE RS, ) (Rape) ) Appellant. )

FOR THE APPE LLANT: FOR THE APPELLEE: GUY T. WILKINSON JOHN KNOX WALKUP District Public Defender Attorney General & Reporter BILLY R. ROE, JR. J. ROSS DYER Assistant District P ublic Defender Assistant Attorney General 117 North Forrest Avenu e Criminal Justice Div ision Camden, TN 38320 425 Fifth Avenue North Nashville, TN 37243 ROBERT “GUS” RADFORD District Attorney General ELEANOR CAHILL Assistant District A

ttorney General 24th Judicial District P.O. Box 686 Huntingdon, TN 38344

OPINION FILED: ___________________ AFFIRMED A

S MODIFIED
JOHN EVERETT WILLIA MS, Judge-2- O P I N I O N James Alfred Anders appeals as of right from a judgme nt of the Circuit Court of Carroll County convicting him of rape foll owing a jury tr ial. The trial court sentenced him as a rang e I standard offender to ten years’ confinement, with a release elig ibility of thirty percent. The sole issue pres ented for our review is whether the evidence at trial was sufficient to support the defenda nt’s conviction. We AFFIRM the trial court’s judgment of convi ction but MODIFY the sentence imposed below to confor m with statutory mandates

.

BACKGROUND On Friday, June 20, 1997, th e defendant rented a room for the weekend at the Shannon Lee Motel. Donald H atcher, an acquaintance and co- worker of the defendant, lived at the Shannon Lee . The defendant visited Hatcher in his room several times duri ng the next two day s. Hatcher testified that the defendant became irritated and attempted to start a fight with hi m during one of these visits. On another occasion, the defendant told him that he had a knife in his room and that he had stabbed a per son. Hatcher asserted that, because of these incidents, he was afr aid of the defendant.
On Sunday, June 22, 1997, the defenda nt again visited Hatcher in his room. After the two had talked for some time, the defendant asked Hatcher if he could see him without his clothes. Hatcher said no. The defendant asked again, and Hatcher again declined. The defendant then offered Hatcher forty dollars, but Hatcher still refused. At that point, Hatcher testi fied, the defendant jumped up and ran to the door, locked it, and stated, “I’m going to do whatever it tak

es to see you out of your clothes.”
According to Hatcher, a fter the defendant locked the door, he hel d one hand behind his back and told Hat cher to remove his clot hes. Hatcher began to disrobe, and the defendant pulled Hatche r’s underwear down and removed his-3- shirt. At the defendant’s direction, Hatcher then removed the remainder of his clothes and lay on the bed. The defendant got on top of Hatcher and attempted to engage in anal sex. When he was unable to penetrate Hatcher, the defendant got up and went to his r oom to retrieve some lubri cant.

When the defe ndant left, Hatcher locked the door and got dressed. He testified that he intended to leave and contact th e police. Before he could escape, however, the defendant returned and knocked on his door . Hatcher stated that he opened the door and star ted to leave, but the defendant w ould not let him pass. According to Hatcher, the defendant physically pushed him back inside the room. The defendant again tol d Hatcher to undress and to l ie on the bed. Hatcher complied, alle gedly out of fear of the defendant.
The defendant then repeated his earlier attempt to engage in anal sex

. Hatcher testified that he did not attempt to ph ysically resist. He stated, however, that he yelled for help and re peatedly told the defendant to stop. The defendant did not stop. Instead, accordi ng to Hatcher, the defendant held hi m down with his hands pinned under him so that he could not remove them and proc eeded to anally penetrate Hatcher with his penis. Hat

cher testified that he did not consent.
When the defendant finished, he put some money on the table and le ft. Hatcher showered, got dressed, and went to his sister’s home. He and his sister then went to

the police a nd reported t hat the defendan t had raped hi m.
The defendant’s trial testimony materially diffe red from Hatcher’s only in that he denied any sugges tion of force or coercion and denie d that Hatcher had told him to stop. Rather, he as serted that the act was c onsensual and suggested that Hatcher’ s allegations were the result of his desire to j ustify the incident after his becoming as hamed of having sex wi th another man.-4- ANAL YSIS When an appellant cha llenges the sufficiency of the evidence, this Court must determine whether, after v iewing the evidenc

e in a light most favorabl e to the prosecution, any rati onal trier of fact could have found the essential elements of a crime beyond a reasonable doub t. See Jackson v. Virginia , 443 U.S. 307, 319 (1979); State v. Duncan , 698 S.W.2d 63, 67 (Tenn. 1985); Tenn. R. App. P. 13(e). The appellee is entitled to the strongest legitimate view of the evidence and all reasonable inferences th at may be drawn therefrom. See State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978).
The credibility of wi

tnesses, the weight of thei r testimony, and the reconciliation of conflicts in the evidence are matters entrusted exclusiv

ely to the trier of fact. See State v. Sheffield , 676 S.W.2d 542, 547 (Tenn. 1984); State v. Gentry , 881 S.W.2d 1, 3 (Tenn. Crim. App. 1993). A jur y verdict for the stat

e accredits the testimony of the state’s witnesses and resolves all conflic

ts in favor of the state. See State v. Willia ms , 657 S.W.2d 405, 410 (Tenn. 1983). Moreover, a guilty

verdict removes the presumption of innocence enjoyed b y defendants at trial and replaces it with a presumption of g uilt. See State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973). Thus, an appellant chal lenging the sufficiency of the evidence car ries the burden of illustra ting to this Court w

hy the evidence is insufficient to support the verdict. See State v. Freeman , 943 S.W.2d 25, 29 (Ten n. Crim. App. 1996).

The defendant has not carried this bur den. Rape is defined, in pertine nt part, as the “unlawful sex ual penetration of a victim by the defendant or of the defendant by a victim accompani ed by any of the following circumstances . . . [f]orce or coercion is used to accomplish the act . . . [ or] [t]he sexual penetrati on is accomplished without the consent of the victim and th e defendant knows or-5- has reason to know at the time of the penetration that the victim did not consent.” Tenn. Code Ann. § 39-13-503(a)(1)-(2).

Thus, to sustain the defendant’s conv iction, there must be proof of both (1) sexual penetration and (2) either coercion or lack of consent. The defendant concedes sexual penetration , but he denies that the act w as nonconsensual or coerced. He argues that H atcher’s testimony to the contrary is illog ical and uncreditworthy and t hat the totality of the evi dence preponderates in his fav or. In essence, he asks this Cou rt to reweigh the ev idence. This we cannot do.
Hatcher testified at trial that he repeatedly told the defe ndant to stop. This testimony, if believed by the jury, was clearly sufficient to establish Hatcher’s lack of consent and that the defendant had reason to k now that Hatcher did not consent. The credibility of witnesses is a question for the trier of fact; the jury was competent to credit H atcher’s testimony and di scredit that of the defendant. This issue is without merit.

RELEASE ELIGIBILITY Finally, although not raised by the parties, we observe that the sentence imposed below indicates an incorrect release eligibility. During the defendant’s sentencing hearing, the t rial judge twice noted that the defendant would be required to serve hi s entire sentence. Never theless, the judgment sheet indicates a release elig ibility of thirty percent. An offender who commits r ape on or after July 1, 1995, “shall serve one hundred percent (100%) of the sent ence imposed by the court less sentence credits earned and r etained.” Tenn. Code Ann. § 40-35-501(I)(1), (2)(G). Because the trial judge was aware of the correct release eligibilit

y, we need not remand for re sentencing. Cf. State v. Delbert Lee Harris , No. 01C01-9705-CC-00177 ( Tenn. Crim. App. filed Sept. 30, 1998, at Nashville) (concl uding that remand for resentenci ng was appropriate w hen trial court erred as to release eligibility because trial court’s imposition of sentence-6- was uninf ormed). We mo dify the s entence below to co mport with the above cited statute.

CONCLUSION The trial court’s judgment of conviction is affirmed. The sentence imposed below is mo dified i n that th e defen dant sha ll have no r elease e ligibility, and this cause is remanded to the trial court for entry of a judgment consistent with this opinion.-7- ____________________________ JOHN EVERETT W ILLIAMS, Judge

CONCUR:

_____________________________ DAVID G. HAYES, Jud ge

_____________________________ JOE G. RILEY, Judge