# FILED

March 10, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE JANUARY 1999 SESSION

STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9803-C R-00123 ) Appellee ) CAMPBELL CO UNTY ) v. ) HON. LEE ASBURY, JUD GE ) REMA LYNN MORGAN, ) (Attempted aggravated r ape) ) Defendant/Appellant )

FOR THE APPELLANT : FOR THE APPELLEE : Martha Yoakum John Knox Walkup District Public Defender Attorney General & Repor ter Eighth Judicial District Ellen H. Pollack Charles Herman Assistant Attorney Gener al Assistant District P ublic Defender Criminal Justice Div ision P.O. Box 337 425 Fifth Avenue North Jacksboro, TN 37757 Nashville, TN 37243

OPINION FILED

AFFIRMED JOHN K. BYERS SENIOR JUDGE1 The defendant was also convi cted of aggravated kidnappi ng, but the trial

judge dismissed that conv iction because it was a part of the attempted aggrav ated rape. -2- O P I N I O N The defendant was convicted of attempted aggravated rape and s entenced to serve 25 years as a range 3 persistent offender. 1 The defendant says the evidence i s insufficient to support the conv iction and that the trial judge erred in finding him to be a persistent rather than a multiple offender. The judgment of the trial court i s affirmed. On January 17, 1997, a young woman was travel ing on I-75 with her husband. When they reached Caryvil le in Campbell County, t hey stopped at a Shoney’s r

estaurant so

the woman co uld go to the bathroom. The woman entered the women’s ba throom in the restaurant at approximately 10:00 p.m. J ust moments after this, the manager, employees, and customers heard screams coming from the bathroom. The manager and some of the employees ran to inv estigate. The almost consistent statements of thes e witnesses was that

when they entered the bathroom they saw the defendant standing over the woman. Some of the witnesses observed the defendant strike the woman and othe rs saw him push her down onto a commode when s he tried to escape. Some of the employ ees testified the man’s trousers an d underwear were dow n to his knees. Others saw the defendant buckling his belt w hen they entered. The woman testified that as she st arted to leave the stall she had used the defendant was in the stall door disrobed from the waist dow n to his knees and that he shoved her back into the s tall. She testified that the defendant s truck her several times and that she fought to escape. The attack continued until she w as rescued by two men who entered the r estaurant.-3- There was no evidence in troduced to refute the State’s ev idence. SUFFICIENCY OF THE EVIDENCE The defendant’s main argument on the matter of the sufficiency of the evidence i s that before a person can b e convicte d of an attempt t

o commit a cr

ime he must be shown to have act ed in such a way as to

show his conduct consti tuted a substantial step towards the commission of the offense as defined in Tenn. C ode Ann. § 39-12-101. He argues that under subsection (a)( 3) conduct does not constitute a substantial step unless the person’s entire course of action is corroborative of the intent to commit the crime. The evidence as set out above shows the conduct of the defendant. Furthermore, the woman rec eived cuts and bruises fro m the blows and physica l violence inflicted on her by the defendant. This constitute s a substantial step towards commission of the cr ime. The evidence to convict mus t be sufficient for a rational tri er of fact to find the defendant guilty of the offense upon whi ch a conviction is had. Jackson v. Virginia, 443 U.S. 307 (1979). In our v iew of the evidence, it is clear the defendant assaulted this woman with the c lear intent to rape her. H e was stopped by the int ervention of other people. It would, i n our opinion, require an unreasonable trier of fact to find otherwise. The evidence is sufficient to sup port the verdict. SENTENCING The sentencing range for a ran ge 3 persistent offender is 20 y ears to 30 years. The trial judg e found that the defendant’s record placed him in the persistent offender classification and that cer tain enhancing factors justi fied an elevation of the sentence from 20 years to 25 y ears. Only the class ification, not the enhancement, is at issue in this cas

e. The defendant contends he should be classi fied as a multiple offender rather than a persistent offender. He contends he has no more than four prior con victions within the class or range of the convicting offense and he is thus to be sentenced under Tenn. Code Ann. § 40-35-106 as a multiple offender.-4- The record shows the defendant had prior convictions in the state of Georgia for rape , a class B f elony; aggr avated as sault, a c lass C fel ony; and a rmed rob bery, a class B felony. The record also shows the defendant had a con viction for robbery in Kentucky, which is a class C felony. The defendant was convicted also of a class E felony o f theft in Kentuc ky. When the assistant district attorney was making argument to the court on the two Kentucky convi ctions, he spoke of a convic tion in Kentucky for second degree assault, which is a c

lass E felony in Kentucky . The State introduced the statute o f second degree assault show ing that offense to be described ess entially the same as the second degree assault statute in Tennessee, which unde r our law is a class C felony. For sentencing purposes, this is to be cons idered as a class C felony in our courts. The defendant in this case was co nvicted of a class B felony . He has prior convictions of two class B felonies and three class C felonies. He falls theref ore under Tenn. Code Ann. § 40-35-107(1) because he has five or more felonies within the definition in subsection (a)(1) of a persistent off ender and the trial judge properly sentenced him. The judgment of the trial court is affirmed. It ap pearing that the defendant is indigent, costs of the appeal ar e taxed to the State.

John K. Byers, Sen ior Judge

CONCUR:

James Curwood W itt, Jr., Judge

Norma McGee Ogle, Judge