IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs May 10, 2016

STATE OF TENNESSEE v. GUY B. BERNAL

Appeal from the Circuit Court for Maury County

No. 19492 Stella L. Hargrove, Judge

No. M2015-01489-CCA-R3-CD – September 26, 2016

_____________________________

A Maury County jury found the Defendant, Guy B. Bernal, guilty of rape. The trial court 

sentenced the Defendant as a Range I offender to twelve years in the Tennessee 

Department of Correction. On appeal, the Defendant asserts that: (1) his right against 

self-incrimination was violated when the trial court did not conduct a proper Momon

hearing; (2) the convicting evidence is insufficient; and (3) his twelve-year sentence is 

excessive. After a thorough review of the record and applicable law, we affirm the trial 

court‟s judgment.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which NORMA 

MCGEE OGLE and TIMOTHY L. EASTER, JJ., joined.

Jacob J. Hubbell, Columbia, Tennessee, for the appellant, Guy B. Bernal.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior 

Counsel; Brent A. Cooper, District Attorney General; and Daniel J. Runde, Assistant 

District Attorney General, for the appellee, State of Tennessee.

OPINION

In February 2010, a Maury County grand jury indicted the Defendant for the rape 

of his stepdaughter (“the victim”). At the trial on the charge, the parties presented the

following evidence: The victim testified that on November 28, 2009, she lived at a 

residence on Kristen Street with her mother, five-year old brother, and step-father, the 

Defendant. She said that she was thirteen at the time of the incident. She recalled that 

she had been sick on Thanksgiving and woke up still sick the following day, Friday, 

November 27, 2009. The victim “laid around” most of the day due to her illness and did 
2

not leave her home. She said that the Defendant arrived home from his work at Cracker 

Barrel at around 5:00 p.m., changed out of his work clothes, and began drinking beer. 

The victim testified that at around 8:00 p.m., she took a shower and dressed in a 

bra, t-shirt, fuzzy pajama pants, and socks. She confirmed that she was not wearing 

underwear. After her shower, the victim lay on the couch in the living room and watched 

television. The victim said that the Defendant was seated on the couch next to her, 

drinking beer. At some point, the victim‟s mother and brother went to the master 

bedroom to go to sleep for the night. The victim recalled that her mother told her to sleep 

in her brother‟s downstairs bedroom, so she would not have to go to her bedroom 

upstairs. 

The victim testified that the pallet in the living room was for her brother. She 

explained that her brother had difficulty falling asleep, and her mother had asked her to 

lie down next to her brother on the pallet to try to help him fall asleep. The victim, 

however, remained on the couch while her mother and brother lay on the pallet until her 

mother decided to go to bed. The victim then went to her brother‟s room and was falling 

asleep when the Defendant came in the room and told her that her mother wanted her to 

go lie on the pallet in the living room. The Defendant then picked the victim up and 

carried her to the living room. He placed her on the pallet where she watched television 

until she fell asleep. The victim estimated that the Defendant retrieved her from her 

brother‟s bedroom at around 11:00 p.m. and that she watched television for fifteen 

minutes before falling asleep in the living room. 

The victim testified that while she was asleep in the living room, the Defendant 

removed her pajama pants and performed oral sex on her. She said that she awoke during 

this incident but pretended to be asleep because she was scared. Her mother walked into 

the room from the master bedroom and began yelling at the Defendant. The victim said 

that her mother told her to put on her pants and go into the master bedroom. The victim‟s 

mother came into the master bedroom, closed the door, and called the police. The victim 

recalled that the Defendant knocked on the bedroom door and said, “Don‟t make a big 

deal out of it,” or something to that effect. 

The victim testified that the police arrived, and she remained in the master 

bedroom. At some point she was taken to the hospital for an examination, and the police 

collected the clothing she had been wearing at the time of the incident. 

C.B., the victim‟s mother, testified that she and the Defendant were married in 

March 2003. Before they married, she worked at Home Depot, and the Defendant 

worked as a subcontractor and installed doors and windows for Home Depot. In 2002, 
3

she, the Defendant, the victim, and the Defendant and C.B.‟s son moved to the residence 

on Kristen Street. 

C.B. testified that the day after Thanksgiving 2009, she and the victim were both 

sick. She said that the Defendant went to work that day, November 27, 2009, while she 

and her children stayed home resting due to illness. She could not recall the specific time 

that the Defendant returned home from work but said that it was dark and “maybe 7:00 or 

8:00” p.m. When the Defendant arrived home, he went over to the laptop computer 

located in the “alcove off the kitchen.” She said the Defendant‟s “normal habit” was to 

drink two or three Fosters beers each night. 

C.B. testified that, at some point, the Defendant put blankets and pillows on the 

floor to try to help their son wind down for the night. At some point that night, the victim 

took a shower and then returned to the couch. C.B. said that she told the victim to sleep 

in her brother‟s room because she was sick. C.B. was lying on the floor with her son, but 

she could not get him to sleep because the television was too loud. She said that she took 

her son into the master bedroom to get him to sleep and closed the door. C.B. recalled 

that she could not sleep due to throat pain so she got up and exited the bedroom to 

retrieve aspirin. She estimated that this was twenty to thirty minutes after she had taken 

her son into the master bedroom. When she exited the bedroom, she saw the victim, 

unclothed from the waist down, lying on her back with her legs up and the back of the 

Defendant‟s head between the victim‟s legs. She said that she yelled at the Defendant, 

“What are you doing anyways?” The Defendant responded saying, “Don‟t make a big 

deal.” 

C.B. testified that she sent the victim to the master bedroom and that she and the 

Defendant went to their son‟s room to talk. She asked the Defendant how long “this” had 

been going on, and the Defendant once again responded, “Don‟t make a big deal out of 

it.” C.B. told the Defendant to go outside and smoke and when he did, she went to the 

master bedroom, closed the door, and called 911. C.B. asked the victim about what had 

occurred, and the victim stated that she did not know, that she was asleep. C.B. told the 

victim what she had seen, and the victim said that she felt sick and went to the bathroom. 

C.B. testified that the Defendant came to the bedroom door, knocked, and told her 

that she did not want to make a big deal out of this “and you know what I‟m talking 

about.” The police arrived shortly thereafter. 

C.B. identified a letter the Defendant sent her from jail in July 2010. She read a 

portion of the letter aloud as follows:
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This is [the Defendant‟s] concise statement of the night and the morning of 

his arrest. I worked two jobs that day and got home late. I drank several 

beers that night, as I always do. I laid down on my living room floor no 

more than 20 feet from my wife, who is a very light sleeper. My autistic 

son, [ ], was asleep on my side of the bed. I laid close to the bedroom door, 

so I could hear my alarm in the morning. I had a double shift the next day. 

I am also hard of hearing. So while I was laying [sic] on my living room 

floor, drunk and asleep, my stepdaughter, [the victim], came onto me and 

took advantage of me. A detailed statement will be given via a polygraph 

machine. The results and all of my notes will be forwarded to the ACLU of 

Tennessee in an attempt to obtain their legal assistance, per my 

correspondence, my case warrant, their agencies dependent.

Eric Pinkerton, a Spring Hill Police Department officer, testified that in the early 

morning hours of Saturday, November 28, 2009, he was dispatched to a residence located 

on Kristen Street. He arrived at the residence at 1:33 a.m., and he and Officer Michael 

Biggs, who arrived at the same time, knocked on the front door. After several minutes, 

the Defendant opened the door. Officer Pinkerton stepped inside the residence into the 

foyer area of the home and asked the Defendant about the reason for the request for the 

police, and the Defendant stated he had “no clue why [they] were there.” 

Officer Pinkerton testified that, from the foyer of the residence, he observed a 

“makeshift bed or pallet” on the living room floor. He recalled that Officer Biggs 

interviewed the victim and the victim‟s mother, C.B., in a separate room outside the 

Defendant‟s presence. While Officer Biggs interviewed the others, Officer Pinkerton 

remained in the foyer speaking with the Defendant. The Defendant told Officer 

Pinkerton that he had been sleeping when the victim‟s mother “came in” and 

“overreacted.” Officer Pinkerton then asked the Defendant “how do you overreact to 

sleeping?” To which the Defendant responded that the victim‟s mother was “crazy.” 

Officer Pinkerton asked the Defendant if he could have been doing anything that could 

have been misconstrued, and the Defendant did not answer. Officer Pinkerton testified

that he advised the Defendant of his Miranda rights and that the Defendant said he did 

not have anything else to say. 

On cross-examination, Officer Pinkerton testified that the Defendant appeared to 

be awake when he answered the door and did not show any signs of intoxication. He 

recalled that the house was dimly lit, but he maintained that the Defendant appeared 

“more coherent” than someone who had been awakened by the knocking on the door. 

Officer Pinkerton estimated that he advised the Defendant of the Miranda rights 

approximately ten minutes after he entered the residence and that he was in the residence 

for approximately forty-five minutes. Officer Pinkerton testified that he then placed the 
5

Defendant in a police vehicle, where the Defendant remained for approximately thirty 

minutes before transport to the Maury County jail. 

Michael Biggs, a Spring Hill Police Department officer, testified that shortly after 

his entry into the house on Kristen Street, Corporal Kennedy arrived. Corporal Kennedy 

and Officer Biggs went to the master bedroom of the house with the victim and her 

mother. The victim‟s mother told the officers about what had occurred. Officer Biggs

said that the victim was crying and told officers that she had been asleep and did not 

know what had occurred. Officer Biggs returned to the entryway and asked the 

Defendant about what had occurred at the residence to cause the police to be summoned. 

The Defendant stated, “To save anymore further embarrassment, whatever she said I did, 

I did.” Officer Pinkerton then escorted the Defendant from the house. Officer Biggs 

remained on the scene until detectives arrived to assume the investigation. 

Geoff Betts, a Spring Hill Police Department officer, testified that he first spoke 

with the Defendant at the police department at around 2:00 a.m. on November 28, 2009. 

The Defendant declined to provide a statement and requested an attorney. Sergeant Betts 

then went to the Kristen Street residence at approximately 2:30 a.m., where he spoke with 

the crime scene technician about the evidence to be collected. He stated that, while there, 

he observed a make-shift pallet on the floor of the living room. When he left the 

residence, he contacted Detective Lovett and asked if she would assist with the interview 

of the victim and the rape kit at the hospital. Sergeant Betts then proceeded to the Maury 

County Sheriff‟s Department to swear out a warrant for the Defendant‟s arrest. Sergeant 

Betts testified that after obtaining the warrant, he went to Maury Regional Hospital where 

he spoke with the victim‟s mother, C.B. 

On cross-examination, Sergeant Betts testified that he did not consider whether the 

physical contact was initiated by the victim based upon C.B.‟s statement that she walked 

into the living room and saw the Defendant‟s “face in her daughter‟s crotch.” She told 

Sergeant Betts that the Defendant was holding the victim‟s legs up in the air. Sergeant 

Betts said that the victim was thirteen years old and the Defendant in his forties at the 

time of this incident. He said that when he attempted to speak with the Defendant about 

his “side of the story,” the Defendant declined. 

Charles Hardy, a Tennessee Bureau of Investigation (“TBI”) special agent, 

testified that he conducted testing on the sexual assault collection kit related to this case. 

Testing of the vaginal swab did not reveal the presence of semen; however, there was a 

limited amount of alpha-amylase, which indicated that saliva could be present. Agent 

Hardy explained that body fluids other than saliva contain amylase but that a positive 

screening for alpha-amylase was a “good indicator” that there was the presence of saliva. 
6

After this proof, the State rested and the Defendant recalled Sergeant Betts. 

Sergeant Betts testified that he met with the Defendant briefly at the Spring Hill Police 

Department, and then the Defendant was transported to the Maury County Jail. The 

video recording taken inside the police vehicle where the Defendant was placed after he 

was removed from the residence was played. Sergeant Betts agreed that the Defendant 

did not appear to be agitated or upset. According to the time stamp on the recording, an 

officer got into the vehicle with the Defendant after approximately thirty-two minutes,

and Sergeant Betts estimated that the drive time to the police department was ten

minutes. The time stamp on the recording indicated that the Defendant remained in the 

police vehicle for an additional twenty minutes after arriving at the police department. 

Sergeant Betts testified that, at the time he met with the Defendant at the police 

department, he was aware that an officer had told the Defendant his Miranda rights; 

however, he advised the Defendant again of these rights. Sergeant Betts said that when 

he advised the Defendant that he was being charged with rape, the Defendant showed no 

emotion. Based upon the video recording time stamp, the Defendant was inside the 

police department for roughly five minutes before being returned to the vehicle and 

transported to the Maury County Jail. Sergeant Betts agreed that, in total, based upon the 

video recording, it appeared that the Defendant was handcuffed in the back of the police 

car for an hour and fifteen minutes. During this time, the Defendant was either humming, 

looking around, or appeared to be asleep.

On cross-examination, Sergeant Betts stated that when he met with the Defendant 

at the police station, the Defendant did not appear to be intoxicated. He confirmed that 

the Defendant appeared to be alert and oriented when he spoke with Sergeant Betts.

The Defendant testified that several days to a week before the alleged rape 

occurred, he developed a rash due to an allergic reaction to an antibiotic. To help 

alleviate the symptoms of the allergic reaction, the Defendant took fifty milligrams of 

Benadryl which left him “loopy and cloudy in the head.” During this time, he also 

worked two jobs. One job was remodeling a residence in Spring Hill, and the other job 

was as a server at Cracker Barrel. 

The Defendant testified about the events of the day leading up to the alleged rape. 

He said that he worked out in the morning and then went to his job remodeling. He 

briefly returned home for a shower and then went to his job at Cracker Barrel for the 5:00 

p.m. shift. He stated that he was normally released from his shift between 8:30 and 9:30 

p.m. After leaving work, he said it was likely he picked up beer and a movie on the way 

home. He said his normal routine was to “wind down” at night with a beer while 

watching a movie. He estimated that he arrived home at approximately 10:00 p.m. He 
7

recalled that C.B. and their son were sick. He sat down on the couch and drank a beer 

while watching the movie. C.B. and their son were lying on a pallet on the floor. He did 

not recall how many beers he drank that night but estimated that it was likely three. 

The Defendant testified that, at some point, C.B. took their son into the master 

bedroom and returned briefly to ask the Defendant to lower the volume on the television. 

The Defendant explained that he had difficulty with his hearing, so he normally kept the 

television volume high. C.B. returned to the bedroom and closed the door to shut out the 

noise from the television. The Defendant said that he was alone in the living room and,

at some point, “would have taken [his] Benadryl.” In recalling the evening, the 

Defendant said, “I would have watched this movie. And when the movie ended, it would 

have been time for me to go to sleep.” He said that he was seated on the couch while 

watching the movie. 

The Defendant testified that “[a]t some point” the victim “was now on the living 

room floor sleeping on this pallet.” The Defendant stated that he did not remember how 

the victim got from her brother‟s bedroom to the living room pallet. He said that the 

victim always slept in her bedroom, and he did not know why she was sleeping in her 

brother‟s room. He then stated, “And how she got to the living room, the only thing I can 

think of is she asked me if she could. And was it uncommon for her to ask me to carry 

her? No.” 

The Defendant testified that when he went into the master bedroom, his son was 

asleep in the bed with his wife. He did not want to disturb his son so he set his alarm to 

wake him for work the following morning and went back to the living room. The 

Defendant said that he considered sleeping on the floor of the master bedroom at the foot 

of the bed but did not because C.B. had difficulty with her vision at night, and he was 

afraid she might step on him. The Defendant said that he left the bedroom door open so 

he could hear the alarm in the morning and lay down on the pallet next to the victim. The 

Defendant then described the events that led to his arrest as follows:

The next thing that I remember is somebody is taking my right hand, and 

again somebody - - at this point, I don‟t know who was doing this; and it is 

all happening in a foggy, dream state. Somebody is taking my right hand to 

take off their pant bottoms. So the right hand is taking it off, and their leg 

is pulled out; and then they take my hand, and the left side is taken off. . . .

. . . .

So then this person moves from where they are on the side. They 

move themselves to my side above my head. At this point, they reach 
8

down with their left and, and they take my hand, and place it on the back of 

their leg. That would be the thigh area. So that hand is placed on the thigh 

area. Again, I‟m not doing anything. I‟m just - - they took my hand and 

placed it on the thigh. . . . 

. . . .

. . . It was like a dream, but like I was a spectator watching my body being 

manipulated. . . .

. . . .

. . . And this person then reached up and took my head, and lowered my 

head down and onto them. . . . At no time did I know or was aware that this 

was really, really taking place, or who was - - or who was doing this. . . . 

. . . .

. . . None of this was voluntary. None of them was of my own volition. 

Then they shook my head; and when they shook my head, I started to lift 

the hair that was on my mouth. And then it wasn‟t even but a few moments 

after that, that my ex-wife is standing over me and [the victim], and saying 

- - screaming, which I understand - - screaming, “What are you doing to 

[the victim]?” And like a surge of electricity went through my body, and I 

jumped to my feet.

The Defendant testified that C.B. told him to go outside to smoke, and so he did. 

When he returned, he spoke with C.B. He said that he told her “not to make a big deal 

out of this” because he was beginning to realize that “what took place was [the victim],” 

and he thought C.B. was going to embarrass the victim. C.B. then told the Defendant to 

go smoke another cigarette, and he again complied. When he returned, he lay down on 

the pallet and fell asleep to be later awoken by the police knocking on the front door. 

The Defendant testified that he was “out of it” when speaking with the police 

officers, so he asked for an attorney. He stated that he “knew that it was [the victim] who 

had done what had taken place thus far” but was unable to explain to the police what 

“was going on” because he “wasn‟t at that very moment able to grasp what was going 

on.” He described C.B. as “barking down in [his] face,” so he told police, “Whatever she 

said was going on, was going on.” He reiterated that he was “incoherent” from the 

alcohol and medication. He vaguely remembered some of the events of the rest of the 

evening, but he remembered with clarity waking the next morning in a jail cell. He stated 
9

that he had “no idea that [his] stepdaughter was not going to tell what really happened” 

and was focused on notifying his employer that he would be “running late.” 

The Defendant testified that, on the night of November 29, 2009, “[e]very bit of” 

the sexual contact that occurred between him and the victim, the victim initiated. The 

Defendant stated that he was not “okay” with what had occurred and would have stopped 

it if he was “able to stop” it. The Defendant speculated that the victim may have been 

acting out due to marital conflict between him and C.B. over financial issues. 

On cross-examination, the Defendant agreed that C.B. did correctly “see what she 

saw” when she exited the bedroom. He agreed that his mouth was on the victim‟s 

vaginal area but clarified that it was the victim who placed his face there. The Defendant 

maintained that it was the victim who “sexually assaulted” him. The Defendant agreed 

that one of the scenarios he believed would explain the victim‟s conduct was that she 

“sexually attack[ed] . . . [him] to keep [him] from leaving the home.” The Defendant said 

that he could not remember all of the events of the night because of his altered state. He, 

however, recalled with clarity that he did not tell the victim that her mother was 

“confused” and wanted the victim to go back into the living room. He stated that the 

victim asked his permission to return to the living room as she had done “many, many, 

many other times before.” He confirmed that he was “real sure” about how the victim 

returned to the living room. 

On redirect examination, the Defendant clarified that his mouth was not on the 

victim‟s vagina but only “on hair.” 

The State re-called the victim, and she testified that she did not remove her pajama 

bottoms or use the Defendant‟s hands to do so. She denied manipulating the Defendant‟s 

hand and mouth. She confirmed that she felt the Defendant‟s mouth on her vagina. 

Based upon this evidence, the jury convicted the Defendant of rape. The trial 

court sentenced the Defendant as a Range I offender to twelve years in the Tennessee 

Department of Correction. It is from this judgment that the Defendant appeals.

II. Analysis

On appeal, the Defendant asserts that: (1) his right against self-incrimination was 

violated when the trial court did not conduct a proper Momon hearing; (2) the convicting 

evidence is insufficient; and (3) his twelve year sentence is excessive. 

A. Momon Hearing
10

The Defendant asserts that his Fifth Amendment right against self-incrimination 

was violated because the trial court failed to properly advise him, pursuant to Momon v. 

State, 18 S.W. 3d 152 (Tenn. 1999),that the jury could not draw any inferences from a 

decision not to testify. The State responds that a Momon colloquy is not required when a 

Defendant elects to testify, and the record reflects that the Defendant‟s decision to testify 

was knowing and voluntary. 

Whether the Defendant‟s constitutional rights were violated is a question of law, 

and, as such, we review it de novo. See State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001).

Tennessee recognizes that defendants have a right to speak on their own behalf at trial. 

Momon at 161. Moreover, only a defendant may waive the right to testify and such a 

waiver may not be inferred or presumed, but instead it must be openly explored. Id. at 

161-62. To prove that a defendant‟s right to testify is not violated, the defense counsel 

should request a hearing outside the presence of the jury to demonstrate the defendant‟s 

waiver of the right to testify has been “knowing[ly], voluntari[ly], and intelligent[ly]” 

made. Id. at 162. No “particular litany” need be used; however, defense counsel must at 

a minimum show:

the defendant knows and understands that:

(1) the defendant has the right not to testify, and if the defendant does not 

testify, then the jury (or court) may not draw any inferences from the 

defendant‟s failure to testify;

(2) the defendant has the right to testify and that if the defendant wishes to 

exercise that right, no one can prevent the defendant from testifying;

(3) the defendant has consulted with his or her counsel in making the 

decision whether or not to testify; that the defendant has been advised of 

the advantages and disadvantages of testifying; and that the defendant has 

voluntarily and personally waived the right to testify.

Id. These procedures are “prophylactic measures which are not themselves 

constitutionally required.” Id. at 163. Therefore, failure to follow the guidelines will not 

be enough to show that a defendant was deprived of the constitutional right to testify “if 

there is evidence in the record to establish that the right was otherwise personally waived 

by the defendant.” Id.

On appeal, the Defendant contends that the procedural guidelines enumerated in 

Momon were not followed. As the State correctly notes, however, the Defendant did not 

waive his right to testify. Our Supreme Court has declined to extend the requirement of a 

Momon hearing in cases where a defendant elects to testify as is the case herein. Mobley 
11

v. State, 397 S.W.3d 70, 91 (Tenn. 2013). The trial court, although not required, 

conducted a Momon hearing and advised the Defendant that he did not have to testify. 

The Defendant confirmed that he had discussed the decision whether to testify or not with 

his attorney. The trial court then made the specific finding that the Defendant had made 

the decision to testify “free and voluntary, with no coercion, force or duress.” The 

transcript supports this conclusion. The Defendant is not entitled to relief as to this issue.

B. Sufficiency of the Evidence

When an accused challenges the sufficiency of the evidence, this Court‟s standard 

of review is whether, after considering the evidence in the light most favorable to the 

State, “any rational trier of fact could have found the essential elements of the crime 

beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see Tenn. R. 

App. P. 13(e); State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid, 

91 S.W.3d 247, 276 (Tenn. 2002)). This standard applies to findings of guilt based upon 

direct evidence, circumstantial evidence, or a combination of both direct and 

circumstantial evidence. State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 

1999) (citing State v. Dykes, 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990)). In the 

absence of direct evidence, a criminal offense may be established exclusively by 

circumstantial evidence. Duchac v. State, 505 S.W.2d 237, 241 (Tenn. 1973). “The jury 

decides the weight to be given to circumstantial evidence, and „[t]he inferences to be 

drawn from such evidence, and the extent to which the circumstances are consistent with 

guilt and inconsistent with innocence, are questions primarily for the jury.‟” State v. 

Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (quoting Marable v. State, 313 S.W.2d 451, 457 

(Tenn. 1958)). “The standard of review [for sufficiency of the evidence] „is the same 

whether the conviction is based upon direct or circumstantial evidence.‟” State v. 

Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 

275 (Tenn. 2009)). 

In determining the sufficiency of the evidence, this Court should not re-weigh or 

reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 

1990). Nor may this Court substitute its inferences for those drawn by the trier of fact 

from the evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999) (citing Liakas v. 

State, 286 S.W.2d 856, 859 (Tenn. 1956)). “Questions concerning the credibility of 

witnesses, the weight and value to be given the evidence, as well as all factual issues 

raised by the evidence are resolved by the trier of fact.” State v. Bland, 958 S.W.2d 651, 

659 (Tenn. 1997). “A guilty verdict by the jury, approved by the trial judge, accredits the 

testimony of the witnesses for the State and resolves all conflicts in favor of the theory of 

the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn.1973). The Tennessee Supreme 

Court stated the rationale for this rule:
12

This well-settled rule rests on a sound foundation. The trial judge and the 

jury see the witnesses face to face, hear their testimony and observe their 

demeanor on the stand. Thus the trial judge and jury are the primary 

instrumentality of justice to determine the weight and credibility to be 

given to the testimony of witnesses. In the trial forum alone is there human 

atmosphere and the totality of the evidence cannot be reproduced with a 

written record in this Court.

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d 

523, 527 (Tenn. 1963)). This Court must afford the State of Tennessee the “„strongest 

legitimate view of the evidence‟” contained in the record, as well as “„all reasonable and 

legitimate inferences‟” that may be drawn from the evidence. Goodwin, 143 S.W.3d at 

775 (quoting State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). Because a verdict of 

guilt against a defendant removes the presumption of innocence and raises a presumption 

of guilt, the convicted criminal defendant bears the burden of showing that the evidence 

was legally insufficient to sustain a guilty verdict. State v. Carruthers, 35 S.W.3d 516, 

557-58 (Tenn. 2000) (citations omitted).

Rape is the unlawful sexual penetration of a victim by the defendant by force or 

coercion. T.C.A. § 39-13-503(a)(1) (2014). Coercion includes “the use of parental, 

custodial or official authority over a child less than fifteen (15) years of age.” T.C.A. § 

39-13-501(1) (2014). The statutory definition of “sexual penetration” includes 

cunnilingus as relevant to this case. Id. at 39-13-501(7). 

The evidence, viewed in the light most favorable to the State, showed that the 

Defendant, the victim‟s stepfather, retrieved the sleeping victim from her brother‟s 

bedroom after the other members of the family had gone to bed and were behind a closed 

door. He laid the victim on a pallet on the living room floor, removed her pants and 

performed oral sex on the thirteen-year-old victim. C.B., the victim‟s mother, exited the 

master bedroom to get aspirin and observed the victim, with her pants off, lying on her 

back with her legs up. She saw the back of the Defendant‟s head between the victim‟s 

legs with his mouth on the victim‟s vagina. The Defendant does not contest these facts, 

rather, he asserts that he was forced by the victim to commit this act which the victim 

denied. The jury heard the Defendant‟s version of the events when he testified at trial as 

well as the victim‟s account. As stated above, questions concerning the credibility of the 

witnesses are resolved by the trier of fact. Bland, 958 S.W.2d at 659. The jury by its 

verdict accredited the testimony of the victim. This Court does not second-guess the 

weight, value, or credibility afforded to the evidence by the jury. Therefore, we conclude 

that the State presented sufficient evidence to support the Defendant‟s conviction for 

rape.
13

C. Sentencing

As his final issue on appeal, the Defendant asserts that his sentence is excessive. 

Appellate review of sentences is under the abuse of discretion standard with a 

presumption of reasonableness. State v. Bise, 380 S.W.3d 682, 708 (2012); see also State 

v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012). A finding of abuse of discretion 

“„reflects that the trial court‟s logic and reasoning was improper when viewed in light of 

the factual circumstances and relevant legal principles involved in a particular case.‟” 

State v. Shaffer, 45 S.W.3d 553, 555 (Tenn. 2001) (quoting State v. Moore, 6 S.W.3d 

235, 242 (Tenn. 1999)). 

To find an abuse of discretion, the record must be void of any substantial evidence 

that would support the trial court‟s decision. Id.; State v. Grear, 568 S.W.2d 285, 286 

(Tenn. 1978); State v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980). In the 

context of sentencing, as long as the trial court places the sentence within the appropriate 

range and properly applies the purposes and principles of the Sentencing Act, this Court 

must presume the sentence to be reasonable. Bise, at 704-07. As the Bise Court stated, 

“[a] sentence should be upheld so long as it is within the appropriate range and the record 

demonstrates that the sentence is otherwise in compliance with the purposes and 

principles listed by statute.” Id. at 708. We are also to recognize that the defendant bears 

“the burden of showing that the sentence is improper.” State v. Ashby, 823 S.W.2d 166, 

169 (Tenn. 1991).

In determining the proper sentence, the trial court must consider: (1) the evidence, 

if any, received at the trial and the sentencing hearing; (2) the presentence report; (3) the 

principles of sentencing and arguments as to sentencing alternatives; (4) the nature and 

characteristics of the criminal conduct involved; (5) evidence and information offered by 

the parties on the mitigating and enhancement factors set out in Tennessee Code 

Annotated sections 40-35-113 and -114; (6) any statistical information provided by the 

administrative office of the courts as to sentencing practices for similar offenses in 

Tennessee; and (7) any statement the defendant made in the defendant‟s own behalf 

about sentencing. See T.C.A. § 40-35-210 (2014); State v. Taylor, 63 S.W.3d 400, 411 

(Tenn. Crim. App. 2001).

The Defendant was convicted of rape, a Class B felony. The trial court sentenced 

the Defendant as a Range I, standard offender. The sentencing range for a Class B felony 

for a standard offender is eight to twelve years. At the sentencing hearing, the trial court 

considered the purposes and principles of sentencing in determining a sentence of twelve 

years. Notably, the trial court found enhancement factor (14), that the Defendant had 

“abused a position of private trust,” and enhancement factor (7), that the offense was 

committed to gratify the defendant‟s desire for pleasure or excitement. T.C.A. § 40-35-
14

114(7), (14) (2014). The trial court also relied on the Defendant‟s lack of remorse and 

his insistence that the victim was the perpetrator of the offense in ordering a twelve-year 

sentence. 

The Defendant specifically challenges the trial court‟s application of enhancement 

factor (7), that he committed the offense to gratify his desire for pleasure or excitement. 

He contends that the State failed to “provide additional objective evidence of the 

defendant‟s motivation to seek pleasure or excitement through sexual assault,” as 

required by State v. Arnett, 49 S.W.3d 250, 252 (Tenn. 1993). In determining the 

sentence, the trial court noted the circumstances surrounding the assault, the manner of 

the penetration, the location of the sexual act, and the timing. The Defendant waited until 

the other family members had gone to bed before carrying the victim to the living room,

mere feet from the master bedroom door where his son and his wife were asleep, to 

perform oral sex on his thirteen-year-old step-daughter. The trial court properly 

considered these circumstances in evaluating the Defendant‟s motive for committing the 

offense. 

The trial court considered the relevant principles and sentenced the Defendant to a 

within-range sentence. Based on the evidence at trial, the sentence imposed on the 

Defendant was not excessive, and the trial court did not abuse its discretion. 

Accordingly, we conclude that the Defendant is not entitled to relief.

III. Conclusion

In accordance with the aforementioned reasoning and authorities, we affirm the 

judgment of the trial court.

_________________________________

ROBERT W. WEDEMEYER, JUDGE