# FILED

October 8, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE JULY 1997 SESSION

STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9609-C R-00331 ) Appellee ) McMINN CRIMINAL ) v. ) HON. MAYO L. MASHBURN, ) JUDGE JACKIE CROWE, ) ) Defendant/Appellant )

FOR THE APPELLANT FOR THE APPELLEE Gregory D. Smith Charles W. Burson One Public Square, Suite 321 Attorney General & Repor ter Clarksville, TN 37

040 Peter M. Coughlan Assistant Attorney General 450 James Robertson Parkwa y Nashville, TN 37243-0493

OPINION FILED

AFFIRMED JOHN K. BYERS SENIOR JUDGE O P I N I O N-2- The defendant was convicted by jury of two counts of rap e and two counts of incest. He was sentenc ed as a Range I, standard offender to twelve (12) ye ars for each rape conviction and to six (6) years for each incest convicti on to the custody of the Department of Correction. The trial court ordered the de fendant to serve the rape convictions consec utive to each other and conse cutive to prior unser ved sentences but concurrent w ith the incest convict ions. The trial court als o imposed fines in the amount of $25,000 f or each rape conviction and $10,000 for each incest conviction. The defendant appeals these con victions, arguing that the evidence is insufficient to sustain convi ctions of guilt beyond a r easonable doubt. We affirm the defendant’s convictions. The evidence presented by th e State at trial consisted of the testimony of Carla Scroggs, w

ho is the victim and the defendant’ s daughter, and the testimony of Mary Crowe, w

ho is the victim’s mother and the defendant’s wife. At the ti me of the trial on February 7, 1996, the victim was ni neteen (19) years old, pl acing her between the ages of sixt een (16) and seventeen (17) at the time of the alleged offenses from August 1993 to August 1994. Identifying the defendant as the per petrator, the victim tes

tified that the defendant raped her on numerous occasion s, but generally she could not remember specific dates and times because t he rapes occurred so frequent ly, at least once a week, and she blocked much of it out. However, the v

ictim was able to testi

fy about two specific instances of rape by relating them to memorable events, which were then traced to more specific dates and times. The victim testified that the fir st specific instance of rape occ urred the day her new bedroom suite was de livered to the house. The v ictim testified about the following details w

ith respect to this rape. The victim and her older s ister shared a bedroom so they purchased a new bedroom suite with money they earned from working at a local

restaurant. On the day the bedroom suite was deliv ered, the-3-

victim came home after school an d began arranging and c leaning the new furnitur e. The victim’s mother and si ster were at work , so she was alone in the house with the defendant. The defendant entered her bedroom and told her to undress, while he put on a condom. By this time in her life, the victim had become so scared of the defendant’s threats to kill or harm her if she did not comply that she took off her clothes. Then, the defendant made her lie on the bed, and he got on top of her and had vaginal intercourse with her. The victim testified that this particular rape hurt her because her vagina was unlubricated. Mary Crowe testified that her daughters received the bedroom suite sometime in August 1993. As for the second specific insta nce of rape, the victim testi fied that the defendant raped her in a utility room, a separate structure which housed the laundry machines at the back of the house. The victim testif ied about the following details with respect to this rape. The defendant told the victi m to go to the utility room to wash some clothes. While she was in the utility room, the def endant came out there already wearing a condom. The defendant unzipped his pants , made her bend over, and penetrated her v aginally. The vic

tim testified that this instanc e of rape occurred sometime after April 1994 at approximately 5:0 0 p.m. She remembered the time because it was st arting to get dark and h er younger sister was told by the defendant to take a bath and get ready for bed. At the defendant’s objection at the close of the State’s proof, the trial court required the State to elect the offenses for which it wa s seeking convicti ons. The State elected to prosecute tw o instances of rape: “the util ity room and the day the bedroom suit [sic] was delivered, when it happened in her bedroom.” The defendant’s proof at trial consis ted of the testimony of his siste r, Carol Allen, who testified that s he had a good relationship w ith the victim, her ni ece, and yet the victim nev

er confided in her over the years about being sex ually abused by the defendant. Ms. Allen further tes tified that the victim did not confide in her when she specifically asked t he victim whether the allegations against th e defendant of sexual abuse were tr

ue. The defendant did not testify at tr ial, but at the sentencing hearing he denied ever hav ing illegal sex

ual intercourse with

the victim.-4- The defendant challenges the sufficiency of the evidence to support the convictions for rape and i ncest. When the sufficiency of the evidence is challenged, the standard of review is whether, after considering the evidence in the light most favorable to the State, any r ational trier of fact could hav e found the essential elements of the crime beyond a rea sonable doubt. State v. Duncan, 698 S.W.2d 63, 67 (Tenn. 1985), cert. denied, 475 U.S. 1031 (1986). Furthermore, “a jury

verdict approved by

the trial judge accre

dits the testimony of the witnesses for the State and resolves al l conflicts in favor of the State’s theory.” State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983), cert. denied, 465 U.S. 1073 (1984); State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). On appeal, the State is entitled to the strongest legitimate view of the evidence and all reasonable inferences that may be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). A finding of guilt agains t the defendant removes the presumpti on of innocence and raises a presumpt ion of guilt on appeal. Grace, 493 S.W.2d at 476. It is the defendant who must ov ercome this presumption of guil t and carry the burden of demonstrating that the ev idence is insufficient. Williams, 657 S.W.2d at 410. In the light most favorabl e to the State, the evidence sh owed that the defendant raped the victim on tw o separate occasions, each set apart from other instances of rape by the v ictim’s unique details

and each traced to specific dates and times by either the v ictim or Mary Cr

owe. Accordingly , the jury was able to delibera te and ret urn a verdi ct of guil t beyond a reasona ble doub t on thes e two specific instances of rape. The defendant failed to present any ev idence to rebut the victi m’s testimony regarding the two specific instances of rape. Therefor e, the jury was enti

tled to believe the victim’ s testimony and reject the defendant’s defense that he did not commit the rapes. On appeal, the defendant has not overcome this pres umption of guilt and has not demonstrated t hat the evidence is insuffici ent.-5- We find that the evidence in the record is c ertainly sufficient for a rat ional trier of fact to find the essential elements of the offenses of rape and incest beyond a reasonable doubt. The judgments are affirmed.

John K. Byers, Sen ior Judge

CONCUR:

David H. Wel les, Judge

Thomas T. Woodall, Judge