# FILED
November 12, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON SEPTEMBER 1998 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. No. 02C01-9711- CR-00430 Appellee, ) ) Shelby County V. ) ) Honorable James C. Beasl ey Jr., Judge ) BARTON L. HAWKINS, ) (Rape) ) Appellant. )

FOR THE APPE LLANT: FOR THE APPELLEE: A C Wharton John Knox Walkup Shelby County Public

Defender Attorney General & Repor ter Tony N. Brayton Douglas D. Himes Assistant Public Defender Assistant Attorney General 201 Poplar Avenue, Suite 201 425 Fifth Avenue North Memphis, TN 38013 Nashville, TN 37243-0493 William L. Gibbons District Attorney General Karen Cook Assistant District A

ttorney General 201 Poplar Avenue, Suite 301 Memphis, TN 38013

OPINION FILED: ___________________
AFFIRMED
PAUL G. SUMM ERS, Judge-2- O P I N I O N The appellant, Barton L. Hawkins, was convicted of rape by a jury verdict in the Shelby County C riminal Court. He w as sentenced to confinement in the Tennessee Department of Correction for eight years and one day as a Range I violent offender. He appeals as of right, challenging both the conviction and sentence. The appellant argues 1) that the evidence at tr ial was insufficient to support a rational finding o f guilt beyond a reasonable doubt and, 2) that the trial court erred in its appli cation of certain enhancement factors a nd in failing to consider alternative s

entencing. We affirm the judgment of the trial cour t.
We begin with a brief review of the evidence. The victi m testified that she was driving home w

hen an unidentified man flagged her do wn to help the appella nt, whose truck had broken do wn. The pro blem was ap parently a defective battery. After a failed attempt to jump-start the tr uck, the victim agreed to drive the appellant to h is home where he said he cou ld get another battery. The victim stated that upon rea ching the appellant’s home, the appellant tried to kiss her. She resisted and a struggle ensued, endi ng with the appellant dr agging her “kicking and scr

eaming” into his house. N eighbors of the appellant corroborated that they had he ard a woman’s screams comi ng from the appellant’s home on the night of the rape.
The victim testified that, onc e inside his home, the appellant held up a bandanna and ordered her to sit. The victim asked to use the r estroom, and the appellant permitted her but enter ed the restroom with her to watch. He then ordered her to undress and took her to another room where he vaginally rape d her. He also demanded oral sex, and the victim complied. In response to the defense’s question why she did not fight or struggle during the rape, the victim stated that she was afraid the appellant would kill her. She stated that she d id not consent.-3- Immediately after the rape, the appe llant hugged the vic tim and told her he was sorry. H e then drove the victi m, in her vehicle, to a gas station where he stopped and went inside, leaving the victim alone in the vehicle for approximately five to ten minutes. The appellant stated that he left the vehicl e running with the keys in the igniti on. There were other people a round the station and the area was well lit. The victim did not attempt to es cape or ask for help because, she said, she was afraid that the appellant would kill or hurt her. The appellant then drove the victim back

to his truck, swit

ched his battery for hers, and let her go.
After reporting the incide nt some two hours later, the victim was taken to the Memphis Sexual Assault Resource Center wher e she was examined. Margaret Aiken, the ex amining nurse, testified that she found scratches on the victim’s upper left arm an d left clavicle. She als o found genital trauma of the posterior fourchette and an abrasion or scrape of th at area. These injuries, Aiken testified, were consistent with forced penetration and are no t ordinarily associated with consensual sex. When pressed, however, Aiken could not rule out the possibility that such injuries could result from consensual sex. Aiken’s examination revealed no fur ther injuries. The vi ctim, however, testi fied that she had also sustained bruises on her leg, chest, and arms; and the state introduced photographs of these bruises tha t had been taken two days after the rape.
The appellant’s version of the facts were that although he did attempt to have sex with the victim, it was c onsensual. He explained the scratches on the victim as the result of her becoming caught in his climbing rose bush. He explained her screams as the result of his dog frig htening the victim.
The appellant first argues that the evidence at trial w as insufficient to justify a rational tri er of fact in convicting him of rape. When an appellant challenges the sufficiency of the evidence, this Court must dete rmine whether, after viewing the ev

idence in a light most fav orable to the prosecution, any-4- rational trier of fact could ha ve found the essential elements of a c rime beyond a reasonable doubt. 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 that may be draw n 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, guilty

verdicts remove the presumption of innocence enjoyed b y defendants at trial and replace i t with a presumption of gui lt. See State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973). Thus, an appellant chall enging 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 appellant has not carried thi s burden. The appellant is conv icted under Tennessee Code Annotated § 39-13- 503, which provides that rape is the “unlawfu l sexual pe netratio n of a vict im by the d efenda nt or of t he defe ndant by a victim accompanied by an y of the following cir

cumstances . . . [f]orce or coer cion is used to accomplish the act.” The appellant argues that there was no reliable physical evidence presented at trial, only the testimony of the victim. Even if this were entirely accurate, the victim’s testimony, if believed by the jury, was clearly sufficient to convict the appel lant of the charged offense.-5- The victim identified the appell ant and unambiguously testified that he forcibly and without he r consent sexually penetrated her. While the appellant attacks the credibility

of the victim’s testimony , credibility is a matter for the finder of fact, and we will not v isit that issue here. The j ury was competent to cr edit the victim’s testimony

and discredit that of the appell ant. This issue is wi thout merit.
The appellant next argues th at his sentence is exces sive and that the trial court erred in not consider ing him for alternative

sentencing. The appellant w as sentenced to confinement for eight y ears and one day at 100% as a R ange I violent offender. Rape is a cl ass B felony, carryi ng a Range I sentence of eig ht to twelve years

. See Tenn. Code Ann. §§ 39-13-503, 40-35- 112. The presumptive sentence for a cl ass B felony is the minimum sent ence in the range, absent enhancement or mitigating factors. See Tenn. Code Ann. § 40-35- 210(c).
Pursuant to the provisi ons of the Sentencing Reform Act of 1989, the trial court found applicable the follow ing four enhancement factors, herei n referred to by their statutory numerical designation:

(1) The defendant has a previous histor y of crimi nal convictions

or criminal behavior in addition to those necessary to establish the appropriate range; (7) The offense involved a victim and was committed to gratify the defendant’s desi re for pleasure or excitement; (15) The defendant abused a pos ition of public or pr ivate trust, or used a special skill in a manner th a t significantly facilitated the commission or the fulfillment of the offense; (16) The crime was

committed und er circums ta nces under which the potential for

bodily injury to

a victim was gr

eat. Tenn. Code Ann. § 40-35-114(1), ( 7), (15), (16). The court found two mitigating factors: (1) The defendant’s criminal conduct neit her caused nor threa tened se rious bod ily injury; (11) The defendant, although g u ilty of the crime, committed the offense under such unusual circumstances that it is unlikely

that a sustained intent to violate the law moti

vated the criminal conduct.-6- Tenn. Code Ann. § 40-35-113(1), ( 11). In accordance with these findings, the court enhanced the appellant’s s entence from eight years to eight years and one day.
Based on his prior conv iction for petty larceny , the appellant concedes the applicability of enhancement factor (1)–that the appellant has a previous history of criminal convictions

in addition to those necessar y to establish the appropr iate range. See Tenn. Code Ann. § 40-35-114(1). He challenges, howev er, the trial court’s application of enhancement factors (7), (15), and (16) and further argues that an additional mitigati ng factor–that the appellant ex hibited remorse by apologizing to the v

ictim immediately after the r ape–should have applied. For the reasons stated below, w e believe that the trial

court misapplied enhancement factor (15) as well as

both mitigating factors. Upon weighing the r emaining factors, however, we believe that some enhancement of the app ellant’s sentence is proper.

When an accus

ed chall enges t he length or man ner of se rvice of a sentence, it is the duty o f this Court to conduct a de novo review on the record “with a presumption that the determinations made by the c ourt from which the appeal is taken are correct.” Tenn. Code Ann. § 40-35-401(d). Th is presumption “is conditioned upon the affirmative showing in the record that the trial court considered the sentencing principl es and all relevant facts a nd circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991).
In conducting a de novo review of a sentence, th is Court must consider 1) the evidence, if any, rec eived at the trial and the sentencing hearing; 2) the presentence report; 3) the pr inciples of sentencing and ar guments as to sentencing alternatives; 4) the nature and characteristics of the criminal cond uct involved; 5) any statutory mitigating or enhancement factors; 6) any statement made by the accused in his ow n behalf; and 7) the potential or l ack or potential-7- for rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102, -103, - 210; State v. Smith , 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987). The appell ant carries the burden of showi ng that his sentence is i mproper. See Tenn. Code Ann. § 40-35-401(d) Sentencing Comm’n Cmts; State v. Jernigan , 929 S.W.2d 391, 395 (Tenn. Crim. App. 1996).
The appellant argues that the st ate has failed to prove the appl icability of enhancement factor (7)–that the offense inv olved a victim and w

as committed for pleasure or excitement. See Tenn. Code Ann. § 40-35-114(7). It is well established that facts constituting an essential eleme nt of the offense for which the defendant is convicted cannot be used to enhance the defendant’s sentence. See State v. Kissinger , 922 S.W .2d 482, 489-9 0 (Tenn. 1996 ). Although “[p]leasure or excit

ement is not an essential element of the offense of rape and, therefore may be considered as an appropriate enhancement, . . . the State has the burden of proving that the rape was sexually motivated.” State v. Ada ms , 864 S.W.2d 31, 35 (Tenn. 1993)(citations omitted). The appellant argues that the state has not carried thi s burden and that the facts do not suppor t application of this factor in the present case

.
A trial court is req uired to include in the rec ord the factual bases for its application of enhancement or mitig ating factors. See Tenn. Code Ann. § 40-35- 210(f). In the present case, the court based its finding that the appellant committed the rape for pleasure or sexual gratification on the appellant’s desire to watch while the victim used the restroo m and while she un dressed. Altho ugh these facts are not overw helming, they do reasonabl y support the conclusion that the appellant acted out of desir e for pleasure or excitement . We, therefore, find no error in the impositi on of this enhancement.
The trial judge also found appli cable enhancement factor (16)–that the crime was committed under circumstances involving great potential for bodily-8- injury to a victi m. See Tenn. Code Ann. § 40-35-114(16). “Bodily injury” is defined as including “a cut, abrasion, bruise, burn or disfigurement ; physical pain or temporary illness

or impairment of the function of a bodily member, organ, or mental faculty.” Tenn. Code Ann. § 39-11-106(2). Great po tential for bodily injury is not an essential element of the offense of rape. See Tenn. Code Ann. § 39-13-503. Cf. State v. Smith , 891 S.W.2d 922, 930 (Tenn. Crim. App. 1994) (noting that the enhancement for potent ial bodily injury should not apply absent extraordinary circumstances in sentencing for aggravated rape , as that offense already reflects statutor y enhancement). The record r eflects that the appellant struggled with the victim in her car, knocked her glasses off, and physically dragged her from her vehicle to his house. These facts manif est force exceeding that necessar y to commit the crime of rape as statutorily defined. While this force may or may not have threatened great bodily injury, it clearly presented great potential for bodily injury. We therefore find no error in the application of this enhancement factor.
Finally, the trial

court applied enhancement factor ( 15)–that the appellant abused a position of public or pr ivate trust. See Tenn. Code Ann. § 40-35- 114(15). The application of this factor requires a finding , first, that the appellant occupied a position of trust v is-a-vis the vi ctim and, second, that the appellant abused that position in a manner t hat significantly facil itated the commission of the offense. See State v. Kissinger , 922 S.W.2d 482, 48 8 (Tenn. 1996). Thus, we must first examine w hether the appellant formally or informally stood in a relationship to the vic

tim that promoted confidence, reli ability, or faith. See id. The trial court found such a relationship, reasoning that the victim put herself in the position to render aid bas ed upon a reliance or trust evoked by the appellant’s ap pearance of need. W hile we might like to p rotect and enco urage the acts of good Samaritans, w e think this application i s broader than the drafter of the statute intended.1 The trial court acknowledge d that applicat ion of this factor seems inconsistent with i ts earlier finding that the sentence should be enhanced b ased on a great potent ial for bodily injury and, therefore, accor ded little weight to either fac tor. We do not agree that the two are necessarily inconsistent, as o ne could logically create a great pote ntial for lesser degrees of bodily i njury without threatening serious bodily injury. -9- Without so holding, we might agr ee that a good Samaritan evok es the trust and confidence of one he or she under takes to aid, as the aided pers on would typically

become, to some degree, relia nt upon the good Samaritan. But, it is difficult to see how

the reverse is true. That is, even if a good Samari tan creates a position of trust w hen he or she assumes the welfare of another, we do not see how the aided person promotes a like reliance. W hether one occupies a position of trust is ultimat ely a fact-specific inq uiry. We simply find no facts supporting the conclusion that the appellant occupied suc h a position as to the victim. We therefore find that the trial c ourt erred in imposing this enhancement.
As to mitigating factors, the trial court first found that the app ellant’s criminal conduct neither c aused no r threate ned serio us bodily i njury. 1 SeeTenn. Code Ann. § 40-35-113(1). The onl y basis offered by the tri al court for the application of this factor was that the victim did not in fact sustain seriou s bodily harm. Because this finding i gnores the threat of such harm, we find it insufficient for application of the statutory factor.
“Serious bodily inj ury” is defined to incl ude substantial mental impairment. See Tenn. Code Ann. § 39-11-106(34). This Court has recogniz

ed that the psychological inj uries suffered by rape vi ctims may rise to the l evel necessary to enhance a sentence for particular ly great personal i njury. See Williams , 920 S.W.2d at 259; Tenn. Code Ann. § 40-35-114(6). It foll ows that, whether actualized or not, the thr eat of serious bodily harm i s inherent in the offense of rape. Therefore, we find that the appellant’s con duct did threaten serious bodily harm; and the trial court erred in its application of this mitigating factor.-10- The trial court also found that the appellant committed his offense under such unusual circumstances that it is unlikely that a sustained intent to vi olate the law motivated the cr iminal conduct. See Tenn. Code Ann. § 40-35-113(11). The trial court noted that the appe llant has committed no other subs tantial criminal violations

within the last fifteen or mor e years, he has no histor y of sexual misconduct, and ther e is nothing in the recor d to suggest a propensity to commit similar offenses in the future. Although these findings may be somewhat salutary, they do not s peak to whether the appellant had a sustained intent to violate the law or to any unusual circumstanc e of his crime. Whether the appellant intended from the outset to r ape the victim we cannot know. We do know that he attacked the v ictim in her vehicle ; dragged her into his house; escorted her to the restroom and stayed to watch; made her disrobe; and vaginally and ora lly raped her. We know that this sequence of events took at least thirty minutes, du ring which he had sev eral opportunities to pause an d reflect on what he was do ing. And, we know that there were no unusual circumstances that might explain, if not excuse, his conduct. Given these facts, we cannot agree that the appe llant lacked a sustained i ntent to violate the law

.
The appellant argues that the trial court erred in not mitigating his sentence based on his apology to the victim immediately following the rape. This, he argues, demonstrated hi s remorse before detection by the authorities. That he said he was “sorry” is not a consideration for which this Court is prepared to mitigate the appel lant’s sentence.
Finally, the appellant argues that the trial co urt erred in failing to consider alternative sentencing . The appellant is not elig ible for alternative sent encing. See Tenn. Code Ann. §§ 40-35-303; 40-36- 106. This issue is without merit.
In sum, we find that the trial court properly enhanced the appellant’s sentence on the basis of factors (1) , (7) and (16). We find that enhancement-11- factor (15) and both of the mitigat ing factors were appli ed in error. We note that the trial court judge gave little weig ht to any of the factors we now find inapplicable. While the remaining factor s warrant some enhancement of the appellant’s sentence, we a gree with the trial

judge that they do not mandate a significant upward departure. The trial court enhanced the appe llant’s sentence by one day, and we thi nk that is an appropriate sent ence.
The judgment below is affirmed.

__________________________ PAUL G. SUMMERS, Ju dge
CONCUR:

_____________________________ DAVID H. W ELLES, Judge

_____________________________ JOE G. RILEY, Judge