1 The defe ndant ’s name i s spe ll ed as i t appe ars on th e in dictment. On some do cume nts, his n ame appears as

“Da niel” R . W illcutt. Our polic y is to use the name as it app ears o n the ind ictmen t. 

### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON Assigned on

Briefs S eptem

ber 10, 200 2
STATE OF TENN ESSEE v. DANIAL R. WILLCUTT Direct Appeal from the Circuit Court for Hardin County No. 8023 C. Creed McGinley, Judge

No. W2001-02743-CCA-R3-CD - Filed Nove mber 22, 2002

A Hardin County

jury convicte d the def endant, Danial R. Willcutt, 1 of aggravated se xual battery, a Class B felony . The defendant was sentenced as a Range I violent off

ender to twelve years in the Dep art men t o f Co rre cti on. In this appeal as of right, the defendant raises the following issues: (1) whether the evidencewas sufficient to support his conviction for aggr avated sexual battery; and ( 2) whether his maximum Range I sentence is excessive. Upon re v iew of t he record, we affirm the judgmen t of the tr ial cour t.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

D AV ID G. H AYES , J., delivered the opinion of the court, in which J OSEPH M. T IPTON , J., joined. J OE G. R ILEY , J., filed a concurring opinion.

Guy T. Wilkinson, District Pu blic Def ender; a nd Richar d Warren DeBer ry , Assistan

t District Public Defend er, for the appe llant, Da nial R. Willc

utt.
Paul G. Summers , Attorney Gene ral and Reporter; Jennifer L . Bledso e, Assista nt Attorne

y General ; G. Robert Radford, District Attorney General; and John W. Overton, Jr., Assistant District Attorney General, for the appellee, State of Te nnessee.2 It i s thi s court ’s pol icy to use in iti als r ather than t he ful l names of

minor vi ctims of sexu al abuse

. -2- OPINION
The male victim in this case is M.B., 2 who wa s ten y ears old at the time

of trial. At trial, M.B. testified to three specific instances of sexual misconduct committed by the defendant between May 1999 and October 2000. During this time period, M.B ., a f riend of the defendant’s stepson, often visited the defendant’s home. On one occasion, while in the living room, the defendant forced M.B.’s head be

tween the legs of Rebecc a Willcutt, the defe ndant’s wife. Mrs. Will cutt, a rather large woman according

to the witnesses, was sitting on the couch wearing shor ts and a t-shirt.
M.B. testifie d the def

endant f orced hi s head tow ard Mrs. Will cutt “ about right there” (indicating), and then his head went “in the middle.” M.B. said his forehead was touching her body (indicating). Even though the record reflec ts M.B. de monstr ated on several occasions where he touchedMrs. Willcu

tt, the re cord unf

ortunate ly does not re

flect the specific area or areas which M.B. identified. However, M.B. also testified his head went under her stomach. While holding M.B.’s head down, the defendant said, “L ook at that goochie.”
T he second incident also occurred in the living room. The de fendant once again forc ed M.B.’s head between

the leg s of Mrs. Willcutt, who was sit ting on the co uch wearing clot hing. M.B. testified his head touched Mrs. Willcutt in “about the same place as last time.” While holdi n g M.B.’s head, the defendant told him to “smell it.” The defendant also said, “Yo u see th at,” and referred to the area a s her “goochie.”
The final incident occurred in the defendant’s bedr oom where Mrs. Willcutt was lying on the bed. T he defe

ndant onc e aga

in attempt

ed to for ce M.B. ’s head b etween

Mrs. Willcu

tt’s leg s. However, the defendant’s hand slipped, and M.B . escaped.
Rebecca Willcutt, who had earlier pled gu ilty to the lesser charge of attempted a ggravated sexual battery , testifie d that ea ch offe nse laste d for fiv e to ten min u tes. She said she told the defendant to stop during each occur rence, but he said that he was “just play ing.”
The defenda

nt was ch arged

withone count

of aggravated se

xual battery for the time per iod betweenMay 1, 1999, and October 1, 2000. At the conclusion of the proof, the prosecution elected the second incident which occurred in the living room. The jur y found the def

endant guilty of aggravated

sexual battery. He

received the maximum sentence of twelve y ears as a Range I

violent offender. This appeal followed.
SUFFICIENCY OF THE EVIDENCE
The defendant contends the evidence is insufficie ntto support a conviction for aggravated sexual battery. We disagr ee.-3-

When evidentiary suff

iciency is questioned, our sta ndard of review is, after

consider ing all the evidence in the lig ht most favorable to the state, whether any rational trier of fact could have found all the es sential e

lements of

the offe nse bey ond a rea sonable

doubt. See Jackson v. Virgini a , 443 U.S . 30 7, 3 19, 99 S . C t. 278 1, 2 789 , 61 L. Ed. 2d 560 (1979); State v. H all , 8 S.W.3d 593, 599 (Tenn. 1999); Tenn. R. App. P. 13(e). This rule applies to f indings of guilt based upon direct evidence, circumst

antial ev idence, or a comb ination of both dire ct and ci

rcumst antial ev idence. State v. L ewis , 36 S.W.3d 88, 93 (Tenn. Crim. App. 2000) (citations omitted).
In determining thesufficiency of the evidence, this court shall neither reweig h or reeval uate the evidence, State v. Matthews , 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990), nor shall this court substitute its inferences for those drawn by the trier

of fact. Stat e v. Buggs , 995 S.W.2d 102, 105 (Tenn. 1999). Questions concerning the credibility of the witnesses, t he weight and value of the evidence, and all factual issues raised by the evidence are resolved by the trier of f

act. Id . This court must afford thestate the strongest legitimate view of the evidence and all reasonable inferences drawn from

it. State v. Evans , 838 S.W.2d 185, 191 (Tenn. 1992). The defendant, once convicted, is presumed guilty a

nd bears the burden of proving the evidenc e was insufficient. Id

. Aggravated

sexual battery is “unlawful sexua l c ontact”betwee

n a defe ndant and a victim, who is less than thirteen yea rs old. Tenn. Code Ann. § 39-13-504(a)(4). “Sexual contact” is def ined as: the intentional touching of the victim’s, the defendant’ s, or any other pe rson’s intimate parts, or the intentional touching of the clothing covering the immediate area of the v ictim’s, the defendant’s, or any other person’s intimate parts, if that intentional touching can be reasonably construed as being for the purpose of sexual arousal or gratification. Tenn. Code Ann. § 39-13-501(6). The “intimate parts” include “t h e primary genital area, groin, inner thigh, buttock or breast of a human being .” Id . at (2). During the trial , the pros ecution a sked M.B . to indica te th e areas whe re he wa s force d to touch Rebecca Willcutt. Even t hough the record reflects M.B. accommodated the prosecution’s request , the record, which is the sole source for our r eview, does not reveal the speci fic a reas that M.B. indicated.
It is the duty of the defe

ndant to prepare a record whi ch con veys a fa ir, accurate, and complete account of

what transpires in the trial court, with respect to the issues which form the basis of the appeal. Tenn. R. A

pp. P. 24; Statev. Boling , 840 S.W.2d 944, 951 (Tenn. Crim. App. 1992). This principle is equally applica ble to evidence which is presented to the trial court or jury but is not made a part of the record as in the case of unrecorded testimony

. See J OHN W. S TRONG E T A L ., M C C ORMICK ON E VIDENCE § 212 (5th ed. 1999) (citi ng Tuttle v. Miami Dolphins, Ltd. , 551 So.2d 477, 483 (Fla. Dist. Ct. App. 1988) (on rehearing))(providing thorough analy sis of burden of proof on appeal with regard to demonstrative evidence ). The fact that the issue on appeal is that of a chall enge to the sufficiency of the evidence does not mean that Rule 24, Tennessee Rules Appellat e-4-

Procedure, is suspended and that the record need not convey a complete account of

what transpired at the trial level with regard to lega l sufficiency.
The dilemma confronting us in this case is whether a rational trier of fact could have

found proof of the essential element

of sexual contact beyond a reasonable doubt. We are unable to make this determination because the record fa ils to convey a " fair, accura te and complete account of what transpire[d] in the trial court" with respect to this issue. Tenn. R. App. P. 24. The err or claime d must be shown in the rec ord and, because the rec ord is inc omplete with regar d to the alleged error, a reviewing court may

not presume that error occurred. I nde ed, our law is to the opposite. In the absenceof an adequate record on appeal, the appellate court must presume that the trial court's ruling [in this case the jury's ve

rdict] was supported by sufficient evidence. State v. Oody , 823 S.W.2d 554, 559 (Tenn. Cr

im. App. 1991). We find Judge Riley' s suggested procedure for the memorialization of unrecorded testimony

as set forth in h is concurring opinion helpful. Thus, in this case, had the victim in fact

"indicated" or pointed to an area other than that defined as a n "intimate part," it was incumbent

on the def

endant if he wishe d to prese

rve that issue on a

ppeal to t ake ava ilable action to nullify the affect of the misidentification. See Tenn. R. App. P. 36(b).
A verdict against the Defendant re moves the presumption of i nnocen ce and r aises a presumption of guilt on appeal, which the Defendant has the burden of overcoming. State v. Evans , 838 S.W.2d 185, 191 (Tenn. 1992) (citations omitted). We conclude the defendant has not met this burden. Accord

ingly , the evid

ence is s ufficie

nt to suppor

t the ver dict.

SENTENCING
Fi na ll y, the defendant contends the maximum twelve-ye ar Range I

sentence imposed by

the trial court is excessive. The defendant argues the trial court improperly c onsidered the enhancement factor that the defendant was a leader in the commission of a crime. See Tenn. Code Ann. § 40-35- 114(2). The defendant also argues that the tr ial court improperly we

ighed this enhancement factor andthe mitigating factor that there was no threat of serious bodily injury in imposing the maximum sentence. See Tenn. Code Ann. § 40-35-113(1). We disagree.
A defendant who challenges his or her sentence has the burden of proving the sentence i mpose d by the trial court is improper. Tenn. Code Ann. § 40-35-401, Sentencing Commission Comments; State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). It is this court’s duty to conduct a de novo review of the record with a presumption the trial cour t’s determinations are corr ectwhen a defendant appeals the length, range, or manner of service of his or her se ntence. Tenn. Code Ann. § 40-35-401(d). The presumption of correctness is conditioned upon the affirmative showing in the record that the tr

ial cour t conside red the s e ntenc ing principles and all relevant facts and circumstances. State v. Pettus , 986 S.W.2d 540, 543-44 (Tenn. 1999).
The weight given to each enha ncemen t or mitig ating factor is in the discretion of the trial court, assuming the trial court has complied with the purposes and principles of the se ntencing act-5-

andits findings are supported by the record. Stat e v. Zon ge , 973 S.W.2d 250, 259 (Tenn. Crim. App. 1997). The statutes prescribe no particular weight f or an enhancement

or mitigating factor. State v. Gosnell , 62 S.W.3d 740, 750 (Tenn. Crim. App. 2001).
The trial cou

rt found a s an enha

ncement factor that the d

efenda nt was a leader in the commission of a crime in volving t w o or more criminal actors. Tenn. Code Ann. § 40-35-114(2). In this case, the commission of the crime involved two criminal actors, the defendant a nd his wife. The statute does not require that the defendant be "the leader" in the commission of the offense, merely a leader. State v. Robinson , 971 S.W.2d 30, 47 (Tenn. Crim. App. 1997). We conclude the facts reveal the defendant was not only a leader, but was the leader in the commission of this offense. This issue

lacks me rit. During the sentencing hearing, the tria l court properl y determ ined t he defe ndant was a R ange I offender and was subject to a sentencing range of eight to twelve years. See Tenn. Code Ann. § 40-35-112(a)(2). Apply

ing the e nhance ment and m

itigating fact

ors, the trial court sentenced the defendant to twelve

ye ars. Th e trial c ourt ga ve gre at weig

ht to the e

nhance ment factor and lit

tle weight to the mitigating factor. The trial court properly considered the sentencing principles, and its findings are adequately supported by

the record. We will not disturb the sentence set by the trial court.
Accord

ingly , we aff

irm the jud

gment of the trial court.

___________________________________ DAVID G. HAYES, JUDGE