### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs A ugus t 4, 200 9

STA TE OF TEN NES SEE v. N ATH AN IEL BA NKS

Direc t Appeal from the Cr iminal Cou rt f or Shelby Coun ty No. 03-03482 Car olyn Wad e Blackett , Judge

No. W2008-02202-C CA-R 3-CD - Filed Dece mber 8, 2009

A Shelby County jury convicted the de fendant, Nathaniel Banks, of two counts of aggra vated se xual battery. The trial court se nten ce d h i m as a R ange I I, multiple offende r, to fiftee n year s in the Tenne ssee De partment of Corr ection at one hundred pe rce nt. On appea l, he prese nts two issues for revie w: (1) whe ther the e vidence was sufficie nt to support his c onvictions; a nd (2) whe ther the tria l

c ou rt e rr e d in sen tenci ng him

a s a Ra ng e II of

fe nd e r. Fol low ing ou r r e vie w o f the pa rt ie s’ brie fs
, a ndthe app lic able la w, we a ff ir m th e jud gme nts of

the tr ia l c ou rt

. Tenn. R. App . P. 3 Appeal as of Right; Judgments of the Cr iminal Cou rt A ffirm ed

J. C. M C L IN , J., delivere d the opi nion of t he court, in which J OHN E VERET T W I L L I AMS and A LA N E. G LE NN , JJ., joined.

Robert Wilson Jones, Chief Public Def ender (at trial and on appea l), Michae l J. Johnson ( on appea l), and Tom Pera

(at tr ia l) A s s is ta n t P u b li c De fende rs, Memphis, Tenne ssee, f or the a ppellant, Natha niel Ba nk s.
Robert E. Cooper, Jr ., Attorney Ge nera l and Reporter ; Deshea Dulany Faughn, Assistant Attorney Gene ral; William L. Gibbons, District Attorney Ge nera l; and Stacey Mc Endree , Assistant District Attorney Ge nera l, for the a ppellee, State of

Tenne ssee.

OP IN ION

Bac kgr ound

The S helby C ounty Gra nd Jury i ndicted the defe ndant on two counts of a ggravated ra pe. The following evidenc e wa s prese nted at trial. T he victim testified that in Dec ember , 2002, she wa s home alone w hen the de fenda n t called and asked he r to “boost off” his car. She stated that the defe ndant had ne ver c alled her befor e that morning. As she was walking out her front door, a

man wielding a lar ge butche r knife forc ed her back inside her apartment. The victim stated that he wa s
wea ring all black, ha d a b l ac k s t o cking cap covering his face , wore latex gloves, a nd had on re d tennis shoes. She did not know who the m an was but t estified that he w as similar in size to the-2-

defe ndant. She gra

bbed the knife , and the blade broke a part fr om the handle. The man f orce d her onto the floor and pulled her coat over her head, the n tied her w rists with the cord of a VCR and her

a nk le s w ith the c or d of an ir on

. He pr oc e e de d to re mov e he r pa nts a nd un de rw e ar. She he ardhis “zippe r go down” and then [f]elt his penis go into [her] vagina.” . The victim testified that he w as inside of her

for “ five to [ten] minutes” and that it hurt her . She could not tell whether the man used a condom or

whether he ejaculated. She testified t hat he told her that “he ha d stabbed somebody a nd the police wa s [sic] looking for him[,] ” but he disguised his voice w hen he spoke

.
The victim testified that the m an l ef t h er t i ed up whe n he wa s finished. She said that “he tried it again[,] ” but she kicked him. He then punched he r in the fa ce se vera l times. S he testified that he “tried to wash [he r] up” with a towel. He also sprea d washing powder and bleac h over the

carpe t, th e n v a c u u me d th e ar e a

. Sh e s a id th a t h e th e n s ta r te d g o in g b a c k a n d f

o r th b e tw een the kitchen an d t h e b al co ny window. While he was looking out of the window, she asked him, “w as [sic] the y gone yet[ ,]” a nd he replied that they wer e not. Afte r about ten minutes, he le ft. She was able to untie her self, and the n she ca lled her mother and the police

.
The victim testified that bef ore the police arrived, the defe ndant knocked on her door. She let him into t he apar t ment, and he immediate ly picked up the VCR and iron. H e then we nt to the kitchen and w ashed his hands, telling the victim that he was “w ashing his hands for f ingerprints.” When the police ar

rived, the de fenda nt was present when she talked to them about what ha ppened. The police called an ambulance for her. She went to a hospital, where they exa mined her f ace . She then went to the R ape Crisis Center, where they t ook her pants and under wea r and swa bbed betwe en her le gs. After

her e xamination, she gave a stateme nt at the police de partment.

The v ictim testified that the defe ndant had be en her sister’s boyfriend for f

our yea rs and visited her sister “ every day.” She stated that she r ecogniz ed the shoe s that her attacker was we aring as being “ just li ke” he r sister’s shoe s and that the de fendant had a pa ir also.
Sergea nt John Henry W illiams, Jr. of the Memphis Poli ce D epartment testified that he wa s the first to the scene on Dec ember 19, 2002. He identifie d the def endant a s the man who a nswere d the victim’s door that day. H e said that the vic tim was sitti ng on the couch, and he asked he r if she neede d medical attention for the bruise on he r hea d. She did not speak until after his partner arrived, but she would look at t he defenda nt when Sergeant Willi ams asked her questions. He testified that he believe d s h e wo u l d s peak to his partner if he took the defe ndant outside. Whe n he took the defe ndant outside, he saw the def endant’ s vehicle an d l o o k ed ins ide of its window. Serge ant Williams testified that he saw a bloody rag in the fr ont are a of the vehi cl e and a packa ge of latex glo ve s on the ba c k fl oo rb oa rd

. He sa id he c ou ld re c og niz e blo od wh e n he sa w i t b ecaus e of h is experience on the police f orce

.
Se rg e a nt W ill ia ms r e c a lle d th a t th e de fe nd a nt wa s we ari ng da rk pa nts wh e n h e fi rs t sa w h im and “ha d a blac k stocking cap on his hea d.” He testified that he saw a cut with fr esh blood on the defe ndant’s hand that could have been cause d by a knife. He also saw blood on t he def endant’ s leg.-3-

On c ro ss- e xa min a tio n, Se rg e a nt W ill ia ms t e sti fi e d th a t he ha d li ft e d th e de fe nd a nt’ s p a nts leg up to see w here the blood on his leg origi nated. He said that he could not re call his testimony at the pre liminary hearing that the defe ndant wore black a nd red pants on Dec ember 19, 2002. He said that whethe r it was norma l for a m an t o be we aring a hat in Dec ember

depende d on the temperature, a nd he could not reme mber what the t emper ature was on De cembe r 19. He could not

rec all whether

he found a

knife at the scene , the addr ess of the sc ene, or the victim’s name.

On re direc t examination, Serge ant Williams testified t h at a p h o to g r a p ho f th ed e f e n d ant taken the day of

the incident shows the de fendant wearing “b l ack sw eats with the re d shoes and a red sport’s [sic] shirt on.”
Sergea nt Wanda

Benton of the Memphis Police Depa rtment testified that on Dec ember 19, 2002 she re sponded to a c all at 4390 An d orra Road. Whe n she ar

rived, Serge ant Williams was prese nt along with the defe ndant an d t h e v i ct im. Sergeant Benton testified that the vic tim was “re luctant to give information.” She sa id that home appliance cords were used i n the assault and that fade d spots were on the ca rpet, whic h might have bee n cause d by bleac h.

Offic er Patric ia Kay Turnmire testified that she was with the Memphis Poli ce D epartment Crime Scene U nit in Decembe r of 2002. She photogra phed the sc ene at 4390 Andorra Road. She testified that she tagge d a VCR found at the sc ene a s evidenc e, as w ell as an iron th at had blood sp a tte rs on it. She said th a t sh e re c og niz e d b loo d f ro m he r e xp e ri e nc e on thejob . O n c ro ssexamination, Of

fice r Turnmire testified that she did not perf orm the test for blood. Whe n rec alled by the state, Of

fice r Turnmire identified a photogra ph of t he victim taken at Delta Me dical Center sh ow ing the vic tim ’s a nk le s th a t sh e too k be tw e e n thi rt y a nd fo rt y- fi ve min ute s a ft e r re sp on din g to the crime scene

. She also identified a photograph of the defe ndant’s 1995 Cutlass S upreme parke d in front of the vic tim’s apartment a nd which wa s taken a s evidenc e in the ca se.
Hy un Ki m te sti fi e d th a t he wo rk e d f or theMe mph is Se xu a l A ssa ult Re sour c e Ce nte r a s a fore nsic scientist. He said that on January 9, 2003, he tra nsported a box c ontaining the victim’s rape kit , a blo odsa mpl e fr om the vic tim , a nda blo od sa mpl e fr om the de fe nd a nt t o th e TBI c ri me la b in Shelby County.

Offic er D onald Flynn of the Memphis Poli ce D epartment testified that he w as a criminal investigator for the District Attorney Ge nera l’s office in 2005. He state d that on May 20, 2005, he took a sea led bag f

rom the prope rty room at the Shelby County Criminal Jus t i ce Compl ex and transfe rre d it to the TBI Crime Lab. On cross-e xamination, he testified that he knew the evidenc e bag in the court room was the sa me as the bag he transferr ed in 2005 beca use of the ba

r code on the bag.
Sergea nt Wyley Ta ylor of the Me mphis P olice De partment testified tha t h e p re p are d an Advice of Rights document for the defendant in Dec ember
, 2002. Sergeant Taylor testified that the document showe d that the d ef en d an t agre ed to give samples of blood, hair, and sa liva. Sergeant Taylo r, Se rg e a nt T a ylo r’ s co-work e r, a ndthe de fe nd a nt e a c h s ign e d th e do c ume nt. On c ro ssexamination, S erge ant Taylor testified t hat he did not have anything to do with the investigation of the ca se.-4-

Special Age nt Donna Ne lson te stified that she is a serologist and DNAanalyst with the TBI. She stated that she a nalyze d a vagina l swab t ak en fr o m the victim and found the pr esenc e of sp e rm a toz oa . Sh e de te rm ine d that the re wa s a mix tur e of DN A m a te ri a l onthe va gin a l sw ab, wi th the victim being the major c ontributor of DN A an d t h e defenda nt being the minor contributor of DNA. Special Agent Ne lson testified that “the proba bility of that mi nor contributor be ing someone other than a

related individual, exce eds the curre nt world population.” She further testified that she found blood on the iron t ak en fr o m t h e victim’s apartment. She stated that “a partial prof

ile was obtained that matche d [the de fenda nt] at [e leven] out of [thirtee n] ar eas in the gender marke r” a nd that th e pr ob abil ity of

a ny on e else h a vin g th e sa me DN A p ro fi le d “ e xc e e ds the c ur re nt w or ld population.”

On cross-examination, S pecia l Agent Nelson said that she obt ained a partial prof ile from the ir on be c a us e the re wa s n ot e no ug h DN A pr e se nt fo r a fu ll p ro fi le fr om the be gin nin g o f the a na lys is proce ss. She testified that she used a computer progra m from the FBI to gener ate the pr obability of another person’ s DNA matc hing the profile she obtained from the evidenc e. She also testified that she is unable to tell how long spermatozoa or blood has bee n on a surf ace

.
El iz abe th Th oma s te sti fi e d that sh e wa s a Se xu a l As sault Nu rs e Ex a min e r a t th e Me mph is Sexual Assault R esourc e C enter who examined the vi ctim the s ame day of t he attack. S he said that the victim told her an unknown bla ck male had assaulted her around nine o’cloc k that morning and had for ced vaginal penetr ation. Ms. T homas testified that she took urine a nd blood samples from the victim and per formed a pel v i c ex am i n ation. She did not observe injuries to the victim’s genitalia. Ms. Thomas testified that it was c ommon for adult victims to not di splay injuries afte r a sexual a ssault. She observe d injuries to the victim’s fac e, and she testified that the photogra phs that the state pre sented fairly and acc urate ly show ed what she obse rved. Ms. Thomas f urther te stified that the victim complained of a heada che and fac ial p ai n

. She stated that she c ollected a vaginal swab fr om the victim as evidenc e. Ms. Thomas said that during the examination, the victim “was tear ful at some ti mes and very, very, quie t and tense at other times.” Ms. Thomas testified that she

a lso c oll e c te d b loo d, sa liv a , a ndha ir sa mpl e s f

rom the de fe nd a nt. On re c ro ss- e xa min a tio n, Ms. Thomas testified that s h e d i d not observe any injuries to the victim’s ankles at the time of the examination.

Based on the e vidence prese nted, the jury found the defe ndant guilty of two coun t s of the lesser inc luded offe nse of aggra vated sexual battery. The trial court merge d the two convictions and sentenc ed the de fenda nt as a Range II, multiple offe nder. The defe ndant re ceived a sente nce of fiftee n year s in the Tenne ssee De partment of Corr ection at 100 pe rce nt and community supervision for life following sentence expiration, pursuant to Tennesse e Code Annotated sec tion 39-13-524.

Ana lys is I. Sufficie ncy of the Evidence
On appe al, the def

endant f irst challenge s the sufficie ncy of t h e co nvicting evidence

. Specifica lly, the defe ndant submits that the state did not prove that the def endant was the person who

c omm itt e d th e of

fe ns e be yo nda

re a so na ble do ub t.-5-

Our re view begins wit h t h e we ll-established rule that once a jury finds a de fendant guilty, his or he r p re su mpt ion of

inn oc e nc e is r e mov e d a ndre pla c e d w ith a pr e su mpt ion of

gu ilt

. State v. Evans , 838 S.W.2d 185, 191 (Tenn. 1992) . There fore , on appea l, the convicted de fendant has the bu rd e n of de mon str a tin g to this co urt why the e vid e nc e wi ll n ot s up po rt the jury’ s v e rd ic t. State v. Car ru the rs , 3 5 S. W .3 d 5 16, 557- 58 (T e nn . 2 00 0) ; Sta te v . Tu gg le , 639 S.W.2d 913, 914 (Tenn. 1982). To mee t this burden, the def endant must establish that no “rational trier of fac t” could have found the e ssential elements of the crime be yond a re asonable doubt. J ac k so n v . V irg ini a , 4 43 U. S. 30 7, 31 9 ( 19 79 ); State v. Ev ans , 1 08 S.W.3d 231, 236 (Tenn. 2003) ; Tenn. R. App. P. 13(e). I n contra st, the jury’s verdic t a pproved by the trial judge acc redits the state’s witnesses and resolves

a ll c o n f li c ts in f a v o r o f th e state. St ate v . H ar ris , 8 39 S.W .2 d 5 4, 75 (T e nn . 1 99 2) . T he state is entitled to the s trongest l egitimate vi ew of the evidence and all rea sonable inferenc es which may be draw n from that evide nce. Car ru the rs , 35 S. W .3 d at 55 8; Tug gle
, 639 S.W.2d at 914. Questions

conce rning the cr edibility of the wit nesses, conflicts in trial testimony, the weight and va lue to be given the evide nce, and all fac tual issues raised by the evidenc e are resolved by the t rier of fac t and not this court. State v. Bland
, 958 S.W.2d 651, 659 (Tenn. 1997). We do not attempt to re-we igh

or re -eva luate the e vidence

. Sta te v . R e id , 91 S.W .3 d 2 47 , 2 77 (T e nn . 2 00 2) ; Bland , 958 S.W.2d at 65 9. Li ke wi se , w e do no t r e pla c e the jury’ s inf e re nc e s dra wn fr om the c ir c ums ta nti a l e vid e nc e wi th our own infe renc es. See State v . Elkins , 102 S.W.3d 581, 582 (Tenn. 2003)

.
Re le va nt t o th is c a se , a gg ra vate d s e xu a l batte ry is

un la wf ul s e xu a l c on ta c t w ith a

vic tim by the de fe nd a nt or

the de fe nd a nt b y a

vic tim

a c c omp a nie d b y a ny of

the fo llo wi ng c ir c ums ta nc e s:
(1 ) F or c e or

c oe rc ion is u se d to a c c omp lis h the a c t, andthe de fe nd a nt i s a rm e d w ith

a we apo n o r any art ic le us e d or fa sh ion e d ina ma nn e r t o le a d th e vic tim re a so na bly to believe it to be a w eapon;
(2) The defe ndant causes bodily injury to the victim[.]

Tenn. Code Ann. § 39- 13-504(a) (2 0 0 6 ). “S exual c ontact” is “ the intentional touching of the victim’s, the defe ndant’s, or a ny other pe rson’s intimate parts, . . . if that intentional touching can be re ason ab l y construed a s being for the purpose of sexual a rousal or gr atification.” Id. § 39-13- 501(6). Additionally, “‘ [i]ntimate par ts ’ in c lu d e s th ep rim a

ry genital a

rea , groin, inner thigh, buttock or bre ast of a huma n being.” Id. at (2).

In this case , we c onclude th at the evide nce is suff icient to support the def endant’ s convictions. Take n in the light mos t favora ble to the state, the e vidence establishes that an a ssailant

me t the vic tim

a t th e do or

to h e r a pa rt me nt w ith a

larg e kn if

e , f or c e d h e r b a c k in to the apa rt me nt, and tied her

up with electrical cor ds. The assailant remove d her pants and forc ed his penis into her vagina. He punched the victim repeatedly in the fac e. The victim was not able t o i d entify the defe ndant as he r assa ilant. Howeve r, she testified t hat her assailant and the defe ndant wer e of the same size and we re w eari n g the same type of clothing, but her a ssailant cover ed his fac e with a stocking cap a nd disguised his voice. Spermatozoa found in the victim’s va gina and blood locate d

on a n iro n both c on ta ine d the de fe nd a nt’ s DNA , an d the pr ob abil ity that any on e e lse ha d th e sa me-6-

DNA profile exceede d the world’s population. Acc ordingly, based on the e vidence prese nted, we conclude that the jury could find the de fendant guilty of aggravated sexua l battery.

II. Se nt e nc ing

Th e de fe nd a nt c on te nd s th a t th e tr ia l c ou rt e rr e d in se nte nc ing him a s a Ra ng e II , mu lti ple offe nder, be cause the state did not pr operly notify the defe ndant that the state w ould seek e nhance d punishment. Specifically, the de fendant submit s that the notic e wa s n o t t imely and was de ficient be c a us e it d id n ot l ist

a ll o f the de fe nd a nt’ s c on vic tio ns

.
An a pp e llate c ourt ’s re vie w o f a c ha lle ng e d s e nte nc e is de novo on the re cord w ith a presumption that the trial cour t’s deter minations are c orre ct. Tenn. Code Ann. § 40-35-401( d). The SentencingCommi ssion Com ments to this s ection of t h e st atute indicate the def endant be ars the burden of establishing that the sentenc e is improper. Tenn. Code Ann. § 40-35-401( d), Sentenc ing Comm’n Com ments. When the trial court f ollows the statutory

sentenc ing pr ocedur e and g ives due consideration and proper

weig ht to the fac tors and princ iples releva nt to sentenc ing, this cour t may not disturb the sentence

. State v. Fletc her , 805 S.W .2d 785, 789 (Tenn. Crim. App. 1991)

. Upon re view, we note that Tenne ssee Code A nnotated sec tion 40-35-202(a ) p rovides that “[i] f the district attorne y g ener al believe s that a d ef en d ant s hould be sentenc ed as a multipl e, persistent or c are er of

fende r, the district attorne y g ener al shall file a statement there of with the court and def ense c ounsel not less than ten (10) day s befor e trial.” Se e als o T e n n

. R

. C r i m

. P

. 1 2

. 3

. If

no tic e is f ile d la te or is fil e d ti me ly

but is otherwise defec tive, the def endant must show pre

judice b e f o r e th e n o ti c e w il l b e r e n d e r e d in e f f ective. See Sta te v . Ca rte r, 121 S.W .3d 579, 585 (Tenn. 2 0 0 3 ) ( ci t i n g State v. Stephe nson, 75 2 S. W.2 d 8 0, 81 (T e nn .1 98 8) ); State v. De bro, 787 S.W .2d 932, 933-34 (Te nn. Crim. App. 1989). The pur poses of the notice require ment are satisfied whe n the defe ndant is not mi s l ed or sur prised by the state’s de cision to seek enha nced se ntencing

. State v. Chase, 873 S.W .2d 7, 9 (Tenn. Crim. App. 1993)

.
Th e tr ia l c ou rt fo un d th a t th e de fe nd a nt s ho uldbe se nte nc e d a s a Ra ng e II of

fe nd e r b e c aus e he h ad “a m inimum of two but not more than f our prior f

elony convictions within the conviction class. . . .” The trial court based its finding on the def endant’ s prese ntence report. The trial court further found t hat t he state’ s notice that it intended to seek e nhance d punishment was “timely and appropriate. . . .” T he state f iled the original notice to se ek enhanc ed punishment in April 2005. The notice stated that “the def endant may be sentenc ed as a Multip l e Of

fe n der . . . a s applicable ” and listed one Class E felony. In 2007, the state gave the def endant notice that he could be sentenc ed

a s a Ra ng e II , mu lti ple of

fe nd e r, bu t th e no tic e didno t li st any c on vic tio ns

. First, the defenda nt argue s that the notice wa s not timely. He points to the fact that a cler k stamped the original notice as filed on the day of the sente ncing hea ring, August 8, 2008. Howeve r, the notice is ac companied by a certificate of service dated April 27, 2007 and signed by the state ’s repr esentative. The trial court found that the notice was timely and a ppropriate . Furthermore , the tr i al co u rt d etermined that the state c ould amend the notice prior to the sente ncing hea ring. The defe ndant incorr ectly states that trial counsel said he did not rec eive the amende d notice until the day-7-

of the sente ncing hea ri n g . The tra nscript re veals that trial c ounsel stated he did not re ceive an
am e nd e d o rd e r from the tria l court until the day of the se ntencing hea ring. Also, the amende d notice from the state is acc ompanied by a certificate of service dated Septembe r 13, 2007. Nothing in the

rec ord pre ponderates aga inst the trial court’s de termin at i o n s. Additionally, the defendant has not shown that he was prejudice d by the timing of the state ’s notice. See State v. Carter , 121 S.W .3d 5 7 9 , 5 8 5 (T en n

. 2 0 0 3 ) ( ci t i n g State v. Stephe nson, 752 S.W .2d 80, 81 (Tenn.1988) ). Acc ordingly, the def endant is not entitled to relief on this iss ue.
Secondly, the def

endant submits that the notice wa s deficie nt because the original no t i ce listed one Class E felony, and the amende d notice did not include any c onvictions. The defe ndant argue s that the original notice unambiguously notified the defe ndant that he was a Range I, sta ndard offe nder. The state is require d to “set forth the nature of the prior felony c onvictions, the dates of the convictions and the identity of the courts of the convictions.” Te nn. Code Ann. § 40-35- 202(a)

. W he n th e state ha s “ su bs ta nti a lly c omp lie d” wi th the no tic e re qu ir e me nt, it is the de fe nd a nt’ s “ du ty to inquire about an a mbiguous or incomplete notice.” State v. Adams
, 788 S.W.2d 557, 559 (Tenn. 1990). Additionally, the defe ndant must show that the defic ient notice pre judiced him. Id. Inthi s matter, the original notice stated that the def endant c ould be sentenc ed as a Range II offe nder, a nd the a me nd e d n oti c e ma de it c le ar that th e state so ug ht e nh a nc e d p un ish me nt o f the de fe nd ant a s a Rang e II o ff

en der. The trial court f

ound that the notice wa s sufficient, a nd the def endant ha s not shown that he wa s prejudice d by the def icient notice. As such, the de fendant is not entit led to relief on this iss ue.

Conclusion

Ba se d o n th e fo re go ing re a so ns , w e a ff ir m th e jud gme nts of

the tr ia l c ou rt

.

___________________________________ J.C. McLIN, JUDG E