### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs J anuary

15, 2003
STATE OF TENNESSEE v. ROLANDO ROSAS CONT RERAS

Appeal from the Circuit Court for Williamson County No. 1-301-69 Donald P. Harris, Judge

No. M2002-01053-CCA-R3-CD - F iled February 21, 2003

The Defendant, Rolando Rosas Contreras, was convicted by a jury of three counts of aggrava ted rape and two counts of aggravated a ssault. After a sentencing hearing , the Defendant was sentenced as
a violent of

fender to twenty -five y ears fo r each o f the three rape c onviction s, and he was sentenced
as a Range I

standard offender to six ye ars fo r each of the two convicti ons for a

ggra vated as sault. The trial cou

rt order ed all se ntences to be se rved concurrently for a total effective sentence of twenty-five

years. I n this direct appeal, the Defendant arg ues that the evidence presented at trial is insufficient

to support his convictions and that the trial court erred by sentencing him to an effective sentence of twenty-five

years. We a

ffirm the convictions and modify the sentence imposed

by the trial cou rt. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court Affirmed in Part; Modified

D AV ID H. W ELLES , J., delivered the opinion of the court, in which T H OMA S T. W OODA LL and R OBER T W. W EDEMEYER , JJ., joined.

John H. Henderson , Distric t Public Defender and Douglas P. Nanney , Assistant Public Defender, Franklin, Tenne ssee, fo

r the app ellant, Ro lando Rosa s Contrer as.
Paul G. Summers, Attorney Gene ral a nd Rep orte

r; Re nee W

. Turner, Assistant Attorney Genera l; Ron Davis, District Attorney Gene ral; and Derek K. Smith, Assistant District Attorney Gene

ral, for the appellee, State of Tennessee.

OPINION

The Defend ant was c onvicted by a jury of three counts of aggr avated r ape, ea ch a ClassA fe lo ny, and two counts of aggrava ted assault, each

a Clas s C fel ony. Foll owing a sente ncing h earing, he wa s s en te nc ed as a v io le nt of fe nd er to tw en ty- fi ve ye ars f or each of the agg

ravated rape convicti ons. He was also sentenced as a Rang e I standard offe nder to six years for e ach of th e aggravated

assault convictions. The trial court ordered the sentences to run concurr ently, resulting-2-

in an effectivesentence of twenty -five y ears to b e serve d in the De partmen t of Correction. I

n this appeal as of right, theDefendant argues that the evide nce presented at trial is insufficient to support his convictions an d t ha t t he tr ia l c ou rt er re d b y or de ri ng hi m t o s er ve an ef fe ct iv e s en te nc e o f t we nt yfive y ears. The proof offered by

the State established that on February 14, 2001, at about five o’clock in the morning, Adrianna Terrazas, a middle school student, was awakened

by the sound of someone coming t hrough her bedr oom door in

her fam ily’ s apartme

nt. The int

ruder to ld her

to “go b ack to sleep and to not scream.” The person was holding a knife, a nd he poin

ted it at Adrianna. Adrianna testified that she was “scared” beca use she was afraid the man would “try to kill [her].” Adrianna identified the Defendant as the man who came into her room holding the knife.

Gloria Terrazas, the eleven y

ear old young er sister of Adrianna, testified that she shared a bedroom withAdrianna. On the mor ning of F ebruar y 14 , she woke

up when sh

e heard people ta lking in her r oom. She said that a man was telling Adrianna “not to scream.” The man was holding a knife, and Glor ia thoug ht the man

was going to “hurt [the m] ” and “cut [them].” B oth Adrianna and Glor ia testif ied that w hen the in truder le ft their r oom he we

nt to the room of their older sister, Maria.

Maria Terrazas, the older sister of Adrianna and Gloria, testified that she was awakened by the sound of a man talking to her friend, who was sleeping in Maria’ s room. The man told her friend that “he had gotten in the wrong house” and was going to leave. He told Maria’s friend to go back to sleep. Maria’s friend attempted to use her cell phone, and the intruder said that if she did not put the phone down, “he might do something to her baby .” Maria was able to see that the man was holding a small knife. The mantold Maria to lie down, and he was “waving the knife around in his hand.” Maria lay on

the bed, a

nd the ma

n lay down next to her. He instructed he r to remove her shirtand her

pants. Maria testified that at first she refused, but the man got angry and told her that if she did not comply, “he’d c ut [her].” The man th

en told he r in Spanish to get on top of him and place his penis in side her

vagina . Maria r

efused. At this poin

t, the man, still holding the knife, stood next to the bed

and dema

nded that Ma r ia perform oral sex on him, which Maria did for a few seconds. The man then made her lie down on the bed, and he got on top of her. Maria testified that he touched her cheek with his knife. He then used his knife to cut her un derwear off; then he penetrated

her vagina with his peni s. This lasted less than a minute. The man then got up and knockedseveral items off Maria’s night stand. As Maria was putting her pants on, the man turned
on the ligh

t, and Mar

ia saw his face f

or two or t

hree se conds. Ma

ria testi fied tha

t she had s een him before at the Hispanic grocery

store that her

parents owned. She identified the Defendant as the man who came into her room on the morning of Febr uary 14, 2001.

Maria testifie d that af

ter the D efenda

nt left he r room, he

took her into the kitchen. He began groping her, and he bent her over the kitchen table an d tried to h ave ana l sex with her. However, he
was unsucce ssful. The

Defend ant orde

red Mar ia to get on her knees and perform oral sex on

him again, which she did. Maria tes tified th at the Defendant still had the knife while they were in the kitchen. As he was leaving the apartment, the De fendant told Maria that if she told any one what he-3-

had done, “he would kill [her] or somebody in [her] family .” When he left, Maria called the police
on her friend’s cell phone. Maria was take n to the hospital in an a mbula nce, and a rape kit was performed

on her. Then Maria went

to the police department to make a composite picture of the man who had r

aped he r. Maria also made

a photo ide

ntificat ion of the Defend ant.

D r. Cindy Woodall testified that she treated Maria Terrazas on February

14, 20 01. Sh e testifie d that Mar

ia told her that she had been sexually a ssaulted in her room earlier that m ornin g. Maria told her that there had been v aginal and oral penetration, but she was unsure whether her attacker had ejaculated. Maria told Dr. Woodall tha t during the assa ult, the intruder had held a knife agains ther cheek. Dr. Woodall testified that she found no damage to Maria’s vagina. She did locat e dried semen on the entrance to Maria’s vag ina. After Dr. Woodall performed the rape kit on Maria, she gave it to Detective Becky Johnson. Dr. Woodall stated that, although she located semen around Maria’s vagina, the Tennessee Bur eau of Investigation

laboratory r

eport stated that no semen was present

. Dr. Woodall explained that this could have occurred either because she failed to swab the semen properly

or the swab was dry

. Detective Tommy Heithcock of the Fra nklin Police Department testified that on February 14, 2001, he went to the Bramblewood Apartments to investigate the sexual assault

of Maria Terraza s. He found a microwave oven outside the bathroom window of the apa rtment, and he located footprin ts on top of it. The bathroom window was open, and he discovered similar footprints on the tile floor in th

e bathro om. From t

his evidence, Detective

Heithcock determined that the intruder had entered the apar tment through the

bathroom

window. H owever , he was u nable to find any finger prints around the window or on any of the doorknobs. The detective did gather seve ral items, including the panties that hadbeen cu t off Mar ia, bed sh eets, a b lanket, a pillowc ase, and a light bulb from a la mp in Maria ’s bedro om.
Detective Becky

Johnson of th

e Fran klin Police Department

went to the emergency

room on February 14, 20 01 a nd recovered the rape kit that had bee n administered to Maria Terrazas. She testifie d that seme

n was det ected on some of the ev

idence r ecover ed from M aria’s b edroom, such
as the blanket and

bedspread. However, the DNA matched Maria’s boyf riend. Detective Johnson also testified that she assisted Maria in examining photographs at the police station. Maria picked the Defendant out of the photo lineup and said, “That’s him.” When Ms. Johnson asked Maria how certain she was on a scale of one to ten that it was the Defendant who raped her, Mar ia replied “Ten.” Detecti ve Johnson a lso showed a photo lineup to Adrianna Terrazas, who said that the man in photograph number five, the Defendant, looked familiar. However, Adr ianna was unable to say for certain that the Defendant was the ma n who had been in her family ’s apartment.
Agent Elizabeth Re id of the T ennesse e Bure au of I nvestig ation, a f

orensic scientist specializing in latent fingerprint analy zation, testified that she examined the light bulb that Detective Heithcoc k had removed from the lamp in Maria Terrazas’ bedr oom. She recovered a finger print from the ligh t bulb; then

she compa

red that print with the fingerprints of the

Defendant. She testified that the print found on the light bulb matched the Defendant’s left thumb print.-4-

The Defendant argues that the proof presented by

the State at trial is insufficient to support his three convictions for aggr avated rape and two convictions for ag gravat ed assault. Tennessee Rule of Appellate Procedure 13(e) prescribes that “[f]indings of guilt in criminal actions whether by the trial court or

jury shall be s et aside

if the evidence i s insuffic ient to support the findings by the tr ierof fact of guilt beyond a reasonable doubt.” Evidence is sufficient if, afte r reviewing the evidence in the light most favorable to the prosecution, any rational trier of

fact could have found the esse ntial ele ments of the crime bey ond a reasonable doubt. See Jackson v. V irginia , 443 U.S. 307, 319 (1979 ); State v. Smith , 24 S.W.3d 274, 278 (Tenn. 2000). In addition, beca use conviction by a trier o f fact d

estroy s the pre sumption of innocenc e and impo ses a pre su mption of g uilt, a convicted criminal defendant bears the burden of showing that the evidence was insufficient. See McBeev. State , 372 S.W.2d 173, 1 76 (Tenn . 1963); see also Stat e v. Buggs , 995 S.W.2d 102, 105- 06 (Tenn . 1999); State v. Evans , 838 S.W.2d 185, 191 (Tenn. 1992); State v. Tu ggle , 639 S.W.2d 913, 914 (Tenn. 1982).

In its review of the e

vidence , an appe

llate cou rt must af ford the State “the strong est leg itimate view of the e vidence as well as all reasonable and leg itimate inferences that may be drawn therefrom.” Tuggl e , 639 S.W.2d at 914; see also Smith , 24 S.W.3d at 279. The court may not “re

weigh or re-e

valuate the evidence” in therecord below. Evans , 838 S.W.2d a t 191; see also Buggs , 99 5 S.W.2d at 105. Likewise, should the reviewing court find particular conflicts in the tri a l te st im on y, the court must resolve them in fa vor of the jury verdic t or trial court judgment. See Tuggl e , 639 S.W.2d a t 914. All questions involving the credibility of witnesses, the we ight and value to be given the evidence, and all factual issues are resolve d by the trier of fact , not the a

ppellate courts. See State v. Mo

rris , 24 S.W.3d 788, 795 (Ten n. 2000); State v. Pappas , 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987).
“Aggravated

rape is unlawful sexual penetration of a victim by the defend ant . . . accompanied by

any of the f

ollowing circumstances: (1) Force or coerci on is used t

o accomp lish the act and the defenda

nt is armed with a weapon . . . .” Tenn. Code Ann. § 39-13-502(a )(1). “‘Sexual penetration’ means sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person’s body

. . . into the genital or

anal openings of the victim’s, the defe

ndant’s, or any other

person’s body, but

emission of semen is not required.” Tenn. Code Ann. § 39-13-501(7). Tennessee Code Annotated section 39-13-101(a)(2) states that a person commits assault who “[i]ntentionally or knowingly causes another to reasonably fear imminent bodily injury.” An

aggr avated a ssault is a

n assault in which a deadly

weapon is used or display ed. See Tenn. Code Ann. § 39-13-102(a)(1)(B)

.
In this case, the eviden c e is sufficient to support the Defendant’s three convictions for aggravated

rape. Maria Terrazas testified that the Def endant told her to lie on her bed as he was “waving the knife around in his hand.” When she did, he instructed her to remove her shirt and her pants. She stated that when she hesitated, he became angr y and threatened to cut her with the knife. The Defend ant remo ved his pe nis from hi s pants, to ld Maria t o get ontop of him and “put it inside [her vagina].” Maria refused, and the D efendant then stood next to the bed and demanded that Mari a perfor m oral sex on

him, which she did for

about fiv e second s. The Defendant then had M aria lie-5-

back down on the bed, and he got on top of her. He touched the side of her face with the knife; then he used the knife to cut off her underwear

. At this point, the Defend ant had va ginal in tercour se with Maria for about one minute. The Defendant got up a nd took Maria into the kitchen. There he bega n groping her and unsuc cessfu lly attem pted t o enga g e in anal intercourse with her. Then the Def endant ordered her to perform oral sex on him again, which she did. Maria testified that the Defendant was wielding the knife the entire time. The Defendant’s fing erprint was found inside the home where the attack occurred. Based on this evidence, a rational jury could have found

bey ond a rea sonable doubtthat the Defendant did commit three separate unlawf ul sexual penetrations of

Maria Terrazas by force while using a weapon.
Likewise, the evidence is sufficient to support the Defendant’s two conv ictions for aggravated

assault. Both Adrianna Terrazas and Gloria Terrazas testified that the Defendant entered their room armed with a kn

ife. Bo th girls testified that the Defendant instructe d them to no t screa m. Both girls testified that they

were afraid. Adrianna stated that she feared that the Defend ant would “try to kill [her],” and Gloria testified that she was afraid that the Defendant would “cut [them].” Based up on this evidence, a rational jury could have found bey ond a reasonable doubt tha t th e Defendant

didcause both the girls to reasonably fear imminent bodily injury while he was displaying a deadly weapon. Accord

ingly , this issue

is without me

rit.

The Defend ant also a

rgues that the tr

ia l court erred by

ordering him to serve an effective sentence of twenty-five

years. When a

n accused challenges the

length, range, or manner of ser vice of a sentence, this Court h as a duty to conduc t a de novo review of the sentence with a presumption that the d etermi nations made by the trial c ourt are correct. See Tenn. Code Ann. § 40-35-401(d). This presumption is “conditioned upon the affirmative showing in the rec ord that t he trial court considered

the sentencing principles and all relevant facts and circumstance s.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991).

When conducting a de novo review of a sentence, this Court must consider: (a) the evidence, if any, received at the trial and sente ncing h earing; (b) the presentence report; (c) the principles of sentencing and arguments as to sentencing a lternatives; (d) the n ature and characteristics of the criminal conduct involved; ( e) any statutory mitigati ng or e

nhance ment fac tors; ( f) any

sta tement
ma de by the

defendant regarding

sentencing; and (g) the potential or la ck of potential for rehabilitation or treatment. See Tenn. Cod

e Ann. §§ 4 0-35-102 , -103, -2 10; St ate v. B rewer , 875 S.W.2d 298, 302 ( Tenn. Cri m. App. 199 3); State v. Thomas , 755 S.W.2d 838, 844 ( Tenn. Cri m. App. 1988).

If our review reflects that the trial court followed the statutory sentencing

procedure, that the court imposed a lawful sentence after having given due consideration and proper weight to the factors and principles set out under the sentencing law, and tha t the trial court’s findings of fact are adequa tely supported by the record, then we m ay not modify the sentence even if we would have preferred a diffe rent re sult. See State v. Pike , 978 S.W.2d 9 04, 926-2 7 (Tenn. 1998); State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).1 We note th at t he pre sent ence r eport

was n ot i nclu ded in the appel lat e recor d.
-6- At the sente ncing hearing

in his case, the trial court heard testimony from Steven Adams, a former cell mate of the De fendant in the county jail. Mr. Adamstestifie d that whil e they were in j ail together, he and the Defendant had eng aged in a conversation about the components of a successful criminal prosecu

tion. Mr. A dams testi fied tha t th e Defe ndant t old him that he had ra

ped Mari a Terraza s. The Defendant told Mr. Adams how he used a kn ife while raping Maria. M r. Adams stated that the D efenda

nt descr ibed whe re th e Ter

raza s family lived and wher e Maria Terrazas worked. The Def

endant e xplained to

Mr. Adamsthat the p olice ha d been un able

to find any semen, DNA evidence, or

finger prints at t he crime scene. U

ltimately , the Def

endant a sked Mr. Adams whether he would be willing to hurt someone for money . The Defendant added t hat his fa mily in Mexico had approximately twenty thousand dollars. This caused Mr. Adams to be concerned a bout the safety of Ma

r ia Terrazas . Sometime later at a church service, Mr. Adams appr oached the Defendant

and as ked ho w thi ngs were going. The De fendant responded by

asking Mr. Adams if he had ever heard of MS Thirteen, which Mr. Adams recognized as the name of a Mexican gang . Then the Defendant winked at Mr. Adams and said, “I ’ve got the problem taken care of.” As a result of these convers ations wit

h the Def endant, M

r. Adams wrote a

letter to the district attorney g eneral’s offic e descr ibin g the th ings t he Defe ndant was sa ying.

David Pratt, an officer with the Board of Probation and Parole , also testified at the sentencing hearin g. He stated that he prepared a pre sentence report in the Defendant’s case. 1 He testified that the Defend ant admitt

e d to be ing in the United States illegally in violation of 8 U.S.C. § 1325. Furthermore, the Defendant admitted while on the stand at the sentencing hearing that he used marijuana once whi le he wa s still resi ding in Mexico. However, the Defendant denied asking Steven Adams to ha

rm Maria Terraza s.

At the conclusion of the senten cing heari ng, the trial court ordered the Def endant to serve
an effective sentence of twent y- five yea rs in the Department of Correction. The trial judge f ound
as an enha

ncing f actor th at the Defendant had a history of criminal beha vior in addition to that necessary to es tab lish the appropriate range. See Tenn. Code Ann. § 40-35-114(2) (Supp. 2002). In finding this enha ncement factor , the cour

t placed great weight on the tes timony

of Steven Adams, and it placed little weight on the Defendant’s illega l residency in the U

nited States and his smoking marijuana while in Mexico.

After thoroughly r

eviewing the testimony

of Mr. Adams, we cannot con clud e that his testimonywas sufficient to establish that the Defendant had a history of c

riminal behavior. Alth ough Mr. Adams testified that the Defendant asked him whether he w ould hurtsomeo ne in e xcha nge for
mo ne y, the asking of this question does not constitute a crime. L ikewise, the mentio ning of t wenty thousand dollars in Mexico or of a gang does not c onstitute

ev id en ce of

cr im in al be ha vi or . F in al ly, the Defendant say

ing that the problem is “taken care of,” while perhaps a cause for c oncern, especia lly when coupled

with statements regarding hurting people, m

oney , and ga

ngs, doe s not rise to the level of crimin al conduct. Therefore, it w as erro r for the court to apply enhanc ement factor (2) base d on the testimony of Steven Adams. Howe ver, irrespective of the misapplication of-7-

enhancement

factor (2) regar

ding the testimony of

Mr. Adams, there was evidence prese nted at the sentencing hearin g that the Def endant was in the United States illegally and that he had used marijuana in the past. These facts do properly establish enhancement

factor (2). However, the trial court gave these facts little weight, and the se ci rcumstan ces do not justify the trial court’ s enhancement

of five years ove

r the presumptive sentence, which, for a Range I

offender convicted of a c la ss A fel on y, is the midpoint of the range, or twenty years. See Tenn. Code Ann. §§ 40-35- 112(a)(1), 210(c). Based on our review of t he record and the sentencing hearing, we have determined that an enhancement of two y ears on each count of agg ravated rape is appropriate.

The Defendant’s convictions are af firmed. We modify the sentence imposed by the trial court from twenty-f

ive years on e ach count of aggra vated rape to twenty -two year s on eachcount. The sentence imposed for each of the Defendant’s convicti ons for a ggra vated as sault sha

ll remain at six years, and all of the

sentences shall run concurrently , for an effective sentence of twe nty-two ye ars.

___________________________________ DAVID H. WEL

LES, JUDGE