### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs N ove m be r 15, 200 5

STA TE OF TEN NES SEE v. CL AR ENC E BU NTO N

Direc t Appeal from the Cr im inal Cou rt for Shelby Coun ty No. 01-13603 John P. C olton, Jr., Judge

No. W2004-02866-C CA-R 3-CD - F iled Dece m ber 15, 2005

A Sh e lby Cou nty Cr imi na l Cou rt jury c on vic te d the a pp e lla nt, Cla

re nc e B un ton , o f atte mpt e d c hil d

ra pe , a ndthe tr ia l c ou rt

se nte nc e d h im a s a

Ra ng e I I , mu lti ple of

fe nd e r t o tw e lve y ear s in confinement. The appe llant appea ls, claiming tha t the evidenc e is insufficient to support the conviction. Upon re view of the rec ord and the p ar t i es ’ b ri efs, we aff irm the judg ment of the trial

c ou rt

.
Te nn. R . A pp. P . 3 App e al a s o f Rig ht ; J udgm e nt of t he Cr im ina l C our t i s A ffirm e d.

N OR MA M C G EE O G LE , J ., delivere d the opinion of the court, in which J A M ES C UR WO OD W I TT , J R

. AND J.C. M C L IN , J J ., joined.

Ga rl a ndEr g ud e n ( on app e a l) a ndB arry Ku hn (at tria l) , M e mph is, Te nn e sse e , f or the a pp e lla nt, Clarenc e B unton.

Pa ul G

. S u m m e r s , At torne y Ge ne ra l a ndRe po rt e r; El iza be th B . M arn e y , A ssi sta nt A tto rn e y Ge ne ra l; Wil liam L . Gibbons, District Attorney Gene ral; and K evin Rar d i n an d S cot B ear up, Assistant District Attorney s Gene ral, for the appe llee, State of Te nnessee

.

OP IN ION

I. F ac tu al B ac kgr ound

Be ssie Mae Fletche r t estified that the vi ctim was her daughter and was born on September 28, 1988. I n April 2001, Fle tcher lived at 3231 Given Stree t with her two sons, her g randdaug hter, and the then twe lve-y ear -old victim

. An o t h er daug hter, April, lived in a small house behind her ho me . O n A pr il 1 , 2 00 1, Flet che r a ndhe r o lde st d a ug hte r, B e tty Mo te n, we re pr e pa

ri ng to g o to Hanc ock F abric s. As they wer e g etting r eady

to leave , Fletc her saw t he appellant, who was Moten’ s boy friend , s t an d i n g on Fletc her’ s front porc h. Fletc her did not like the a ppellant and told Moten,

“ [H]e ’s g ot t o g o. ” Th e app ell a nt s tart e d w a lki ng do wn the str e e t, a ndF le tc he r a ndMo te n le ft

. Fletc her le ft her c hildren and g randdaug hter in April’s c are

.-2-

Fletc her a nd Moten wer e g one for about forty

minut es

. W h en t h ey

returne d home, the appellant wa s coming out of Fletc her’ s house. The victim wa s behind the appellant and told Fletche r that the appe llant had had sex with her. Fletc her followed the a ppellant outside and be g an hitting him, a nd the appellant g ot into someone’s car and lef t. Fletche r telephone d the police, who a rrived and took Fle tcher

and her family to the Memphis Sexual Assault Resource Center. The victim was examined at the ce nter a nd left her jeans a n d p an t i es t here . Fletc her state d that the victim was “slow” a nd took special c lasses at school. On c ros s -ex amination, Fletc her te stified that the appellant’ s nickname w as “Coochie ” and tha t the victim knew the appe llant by his nickname. She stated that she did not like Moten’s re lationship with t he appe llant because “[h]e didn’t do nothing but jump on her all the time.” S h e s t at ed t hat when she and Moten re turned home f rom Hanc ock Fa brics, the victim was dr essed.
The victim, who wa s fi ft ee n y ear s old at the time of trial, testified that she lived w ith her mother, two brother s, and a nie ce. A smaller house was located be hind their house, and the victim’s older sister, April, lived in that home. On April 1, 2001, the victim’s mother and B etty Moten went to H a nc oc k F abr ic s, le a vin g the vic tim , h e r b ro the rs , a ndhe r n ie c e a t ho me wi th A pr il. Th e vic tim was outside riding her bike , and the a ppellant t old her to c ome into the main house. The vic tim went ins i d e, an d t h e ap pellant told her to lock the ba ck door. H e then told the victim to go into the bathroom, and he pulled down her pants. The appellant laid the vi ctim on the bed in her be droom and told her tha t he was g oing to put his penis in her vag ina. He then stated, “Wait for a minute, I g ot to do something.” The appellant lef t the room and locke d the f ro n t d o or. He returne d to the be dr oo m a ndpu t his pe nis in the vic tim ’s va g ina

. Af te r the inc ide nt, he tol d th e vic tim no t to te ll he r m oth e r a ndg a ve the victim a do lla r. Whe n th e vic tim ’s mothe r r e turne d h ome , th e vic tim immediately told her mother about t he rape. The victim’s mother c alled the police , and the police took the vi ctim to the M emphis Sex ual Assault Resource Center. The victim g ave the police the one dollar bill that the appellant ha d g iven her

.
On cr oss-examination, the victim t estified that her brothers were outside during the ra pe and that April and he r boy friend w ere in the smaller house. She stated that af ter the a ppellant told her to pu ll do wn he r pants , sh e we nt to Ap ri l’ s ho us e a nd tol d Ap ri l that the app e lla nt w a nte d th e vic tim to p ull do wn he r p a nts . A pr il t oldthe vic tim to te ll the ir mothe r wh e n th e ir mothe r r e turne d h ome and did not help the victim. The victim a cknowledg ed telling Reed Br anch that t h e a p p el l ant digitally penetr ated he r. Howe ver, she said that the appellant did not put his finge rs in her va g ina and that she did not know why she lied to Br anch. She sta ted that the appe llant pulled her pa nts and panties down to her

fee t but did not take them off. She stated that she did not know what ejaculation and seme n wer e but that no fluid ca me out of the a ppellant’s penis.

Anita B oykins, a sexual assault nurse examiner for the M emphis Sex ual Assault R esourc e Center, testified that she examined the victim on April 1, 2001. She collecte d a vag inal swab a nd a vag inal slide from the victim and collected the victim’s underwea r. The vic tim tol d Boy

kins that the app e lla nt c a me int o the vic tim ’s be dr oo m and pu sh e d he r ont o the be d. Ac c or din g to the vic tim , the appe llant told the victim t o hold her leg s up, and “we st arte d doing it.” A fterw ard, the appellant told the victim to go into the bathroom, and he left. On cross-e x amination, Boy kins testified that the-3-

vic tim tol d B oy kin s that sh e c ou ld no t re me mbe r the app e lla nt’ s na me a nd that sh e didno t kn ow if the appe llant ejaculated. B oykins state d that the victim’s hymen was not normal but that she found no redne ss, bruising, or bleeding to the victim’s ge nitalia . She stated that the victim was cooper ative, quiet, and c ontrolled and that ba sed upon her examination of the victim, she conclude d that the victim’s vag ina had be en pene trated.
Marg are t A iken testified that she was a sexual a ssault nur se examiner at the Memphis Sexual As sault Re so ur c e Ce nte r. She c oll e c te d a sa liv a sp e c ime n f

ro m th e app e lla nt.
Hyun Kim of the Memphis Police Depa rtment testified that he wa s the manag er of evidenc e
a t th e M e mp h is Se xu a l A s s a u lt Re s o u r c e Ce n te r a n d s e n t th e ap p e ll a n t’ s s a li v a s a mp le and the victim’s rape kit to the Tennessee Bur eau of I nvestig ation (TB I ). The vic tim’s pa nties were included in the rape kit.
Special Age nt Chad J ohnson of the TB I ’s fore nsic servic es division testified that he conducte d DNA a naly sis on the vic tim’s r ape kit a nd the appellant’ s saliva sample. J ohnson found

no sp e rm or se me n o n th e vic tim ’s va g ina l sw abs bu t f ou ndsp e rm

a ndse me n o n h e r p a nti e s. J ohnson compar ed the DNA profile from the panties to the DNA pr ofile for the appe llant’s saliva sample and concluded that the profiles matched. He stated that the probabilit y of someone ha ving the s ame DN A p ro fi le a s th e app e lla nt w ou ld e xce e d th e c ur re nt w or ld’ s p op ulatio n. On c ro ssexamination, J ohnson testified that he did not know how long the appe llant’s semen ha d been p rese nt on the victim’s underw ear . Although the appellant ha d been c harg ed with child ra pe, the jury

c o n v i c t e d h i mo f

a t t e m p t e d c h i l d r ap e , a

C l a s s B f e l o n y.

II. Ana lys is

The a ppellant ar g ues t hat t he evidence is insufficient to support the c onviction, claiming tha t the vic tim ’s “ ve rs ion of

e ve nts wa s c on fl ic tin g a ndof te n impr ob able .” I n s up po rt of his arg ume nt, he notes that the vic tim tol d Anita Boykins that she could not re member the name of the man who rape d her despite the fac t tha t the victim kne w the appe llant as “Coochie.” He a lso contends that the victim’s “leaving both the bedroom a nd house in mid-assault t o g o out to tell two adults t hat a man was insi de the house and wanted her to pull her pants down” is “biz arr e.” T he State ar g ues that the evidenc e is more than suf ficient to support a c onviction for child ra pe and, the re fo re , t h at the eviden ce i s sufficie nt to support the conviction for attempted child rape . We conclude that the evidenc e is sufficie nt.
When an appe llant challenges the sufficie ncy of the c onvicting e vidence , the standar d for revie w is “whe ther, a fter vie wing the evidenc e in the lig ht most favorable t o the prosec ution, any

ratio na l tr ie r o f f

a c t c ou ld h a ve fo un d th e e sse nti a l e le me nts of the c ri me be y on d a

re a so na ble do ub t.” Jac ks on v. Vi rg ini a , 4 43 U. S. 30 7, 31 9, 99 S. Ct. 27 81 , 27 89 (1 97 9) ; se e Te nn . R. Ap p. P. 13(e ). On app e a l, the Sta te is e nti tle d to the str on g e st l e g iti ma te vie w o f the e vid e nc e a nda ll

rea sonable or leg itimate inf ere nces which may be draw n there from. State v. Cabbag e, 571 S.W.2d 832, 835 (Tenn. 1978) . Questions conce rning the credibility of wit nesses a nd the weig ht and value-4-

to be af forde d the evidence, as well as all fac tual issues raised by the evidence, are resolved by the j u ryas t ri ero f f

ac t

. S t at e v

. Bl an d , 9 5 8 S

. W

. 2 d 6 5 1 , 6 5 9 (T en n

. 1 9 9 7 ). T h i s co u rt wi l l n o tre we i gh

or re e v a lu a te th e e v id e n c e

. I d

. B e c a u s e a ju r y c o n v ic ti o n r e mo v e s th e p r e s u mp ti o n o f in n ocenc e with which a de fenda nt is ini tially cloake d at trial and r eplac es i t on appea l with one of g uilt, a

c on vic te d d e fe nd a nt h a s the bu rd e n of de mon str a tin g to this c ou rt that th e e vid e nc e is i ns uf fi c ie nt. State v. Tug g le, 639 S.W.2d 913, 914 (Tenn. 1982).
“Rape of a c hild is t he unlawf ul s ex u al p en et ra tion of a victim by the def endant or the defe ndant by

a victim, if such victim is less than thirteen (13) y ear s of age .” Tenn. Code Ann. § 39- 13 -5 22 (a ). A p e rs on c omm its c ri min a l a tte mpt wh e n, a c tin g wi th the kin d o f c ulp abil ity oth e rw ise require d for the of

fense , the per son
(1) Intentionally

eng ag es in ac tion or cause s a re sult that would constitute an off

ense if the cir cumstance s surrounding the conduct we re a s the person be lieves them to be;
(2) Ac ts with int ent to cause a re sult that is an e lement of the offe nse, and believes the conduct will cause the result without further conduct on the pe rson' s part; or
(3) Ac ts with int ent to complete a course of action or cause a result that would c o n s t i tute the offe nse, under the circ umstances surrounding the conduc t as the per son believes them to be, a nd the conduct c onstitut es a substantial step towa rd the c om mission of the offe nse.
Tenn. Code Ann. § 39- 12-101(a ).

I n th e in s ta n t c a s e , th e v ic ti m te s ti f ie d th a t th e ap p e ll a n t to ld h e r to c o me in to th e house, pulled down he r p an t s , l ai d h er on the bed, and told her that he wa s g oing to put his penis in her

va g ina . T he vic tim

a lso state d th a t th e app e lla nt l e ft the ro om, re turne d, a ndra pe d h e r. F or e ns ic te sti ng of the vic tim ’s un de rw e ar r e ve a le d th a t th e app ell ant ’s sperm w a s o n th e vic tim ’s pa nti e s, d i r e c te v i d e n c e t h a tt h e ap p e l l a n th a d s e x u a l c o n t a c tw i t h t h e v i c t i m a n d c o rr o b o r a t i n g h e r

t e s t i m o n y. We note that the victim’s mother testified that t h e v i ct i m was “ slow” and took spec ial classes at school

. Whil e the victim stated that she w ent to her sister’ s house at some point during her

e nc ou nte r w ith the app e lla nt a nd tol d he r sis te r that the app e lla nt w a nte d h e r t o p ull do wn he r p a nts , the jury he ardthe vic tim ’s a c c ou nt an d c ho se to c on vic t th e app e lla nt o f the le sse r i nc lud e d o ff e ns e of attempted c hild rape, de monstrating to us that the jury car efully considere d the victim’s testimony and the DNA evidenc e. Take n in the light most fa vorable to the State, we conclude that the evidenc e is sufficient to support the convic tion.-5- III. Conclusi on Up on re vie w o f the re c or d a ndthe pa rt ie s’ br ie fs , we a ff

ir m th e jud g me nt o f the tr ia l c ou rt

.

___________________________________ NORMA McGEEOGLE, J UDGE