IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

May 7, 2013 Session

STATE OF TENNESSEE v. JAY EARL HAYNES

Appeal from the Circuit Court for Dyer County

No. 09-CR-288 Lee Moore, Judge

No. W2012-01917-CCA-R3-CD - Filed July 17, 2013

Appellant, Jay Earl Haynes, was indicted by the Dyer County Grand Jury in August 2009, for

two counts of rape in connection with the anal rape of the two mentally-incapacitated

grandsons of Appellant’s live-in girlfriend. Appellant argues that the evidence was

insufficient to support his convictions because he could not have known that the victims were

mentally incapacitated and that the trial court erred in imposing consecutive sentences. After

a thorough review of the record, we conclude that there is ample evidence upon which a

reasonable trier of fact could find that Appellant knew of the victims’ mental incapacity and

that his criminal activity was so extensive as to support the imposition of consecutive

sentences. Therefore, we affirm the judgments of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Trial Court are Affirmed.

JERRY L. SMITH, J., delivered the opinion of the court, in which NORMA MCGEE OGLE and

ALAN E. GLENN, JJ., joined.

H. Tod Taylor, Assistant Public Defender, Dyersburg, Tennessee, for appellant, Jay Earl

Haynes.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney

General; and Phillip Bivens, District Attorney General, for the appellee, State of Tennessee.

OPINION

Factual Background

In June 2009, the male victims, who are twins, were nineteen years old. The victims

lived with their mother and required constant adult supervision because they had the mental

development of a child. The evening of June 26, their grandmother and her boyfriend,
Appellant, picked the victims up to spend the night. Appellant had been dating their

grandmother for about five months and living with her for about two weeks. The

grandmother and Appellant had taken the victims out dancing a few times before June 26.

The victims’ grandmother was the supervisor of the kitchen at the Dyer County Jail.

Very early in the morning of June 27, she received a call that she needed to be at work at

4:00 a.m. She tried to call the victims’ mother but was unable to reach her. She left for work

while Appellant and the victims were sleeping.

In the morning, Appellant asked one of the victims to come into the bedroom.

Appellant told the victim to pull his pants down. After using lotion to lubricate the victim’s

anus, he penetrated the victim and anally raped him. After Appellant was finished, he wiped

the victim with a towel. The victim said he saw blood on the towel. The victim’s brother

was not present during the rape. Appellant next raped the other victim in the living room on

the mattress on which the victims slept the night before. Appellant also raped each victim

a second time, one in the bedroom and one in the living room. Appellant told the victims not

to tell what had happened. Their grandmother came home and took them to their mother’s

house around 6:00 p.m.

When they arrived home, their mother stated that she could tell something was wrong

because they were both withdrawn. They told her what had occurred while at their

grandmother’s house. As a result, their mother called their father and the police. The victims

were taken to the hospital for an examination where nurses examined them and found that

both victims showed signs of anal redness and slight injury to the anus.

The victims’ father decided to confront Appellant. The victims’ father drove to his

mother’s house and sat in his car to watch the house. He saw Appellant come out of the

house to the “burn barrel” and put some trash in the barrel. Appellant “lit the barrel.”

Appellant began to bring what appeared to be sheets to the barrel as well. Before Appellant

could put the sheets in the barrel, the victims’ father ran over and knocked the barrel over to

put out the fire. The victims’ father took the sheets to the police. Appellant was

apprehended a few days later.

On August 10, 2009, the Dyer County Grand Jury indicted Appellant for two counts

of rape. A jury trial was held January 25 and 26, 2012, and the jury convicted Appellant of

both counts. The trial court held a sentencing hearing on February 28, 2012, and imposed

a sentence of twenty years for each count to be served at 100 percent as a multiple rapist.

The trial court also ordered that the sentences be served consecutively.

Appellant appeals both his convictions and his sentence.

-2-
ANALYSIS

Sufficiency of the Evidence

On appeal, Appellant argues that the evidence was insufficient to support his two

convictions for rape because “[e]ven if this court concludes that a rational juror could have

found beyond a reasonable doubt the element of lack of consent via mental defect,

[Appellant] did not know nor could he have known that [the victims] were unable to consent

to sex due to that defect.” The State disagrees.

When a defendant challenges the sufficiency of the evidence, this Court is obliged to

review that claim according to certain well-settled principles. A verdict of guilty, rendered

by a jury and “approved by the trial judge, accredits the testimony of the” State’s witnesses

and resolves all conflicts in the testimony in favor of the State. State v. Cazes, 875 S.W.2d

253, 259 (Tenn. 1994); State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). Thus, although the

accused is originally cloaked with a presumption of innocence, the jury verdict of guilty

removes this presumption “and replaces it with one of guilt.” State v. Tuggle, 639 S.W.2d

913, 914 (Tenn. 1982). Hence, on appeal, the burden of proof rests with the defendant to

demonstrate the insufficiency of the convicting evidence. Id. The relevant question the

reviewing court must answer is whether any rational trier of fact could have found the

accused guilty of every element of the offense beyond a reasonable doubt. See Tenn. R. App.

P. 13(e); Harris, 839 S.W.2d at 75. In making this decision, we are to accord the State “the

strongest legitimate view of the evidence as well as all reasonable and legitimate inferences

that may be drawn therefrom.” Tuggle, 639 S.W.2d at 914. As such, this Court is precluded

from re-weighing or reconsidering the evidence when evaluating the convicting proof. State

v. Morgan, 929 S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews, 805 S.W.2d

776, 779 (Tenn. Crim. App. 1990). Moreover, we may not substitute our own “inferences

for those drawn by the trier of fact from circumstantial evidence.” Matthews, 805 S.W.2d

at 779. Further, questions concerning the credibility of the witnesses and the weight and

value to be given to evidence, as well as all factual issues raised by such evidence, are

resolved by the trier of fact and not the appellate courts. State v. Pruett, 788 S.W.2d 559,

561 (Tenn. 1990). “The standard of review ‘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)).

Appellant was indicted under Tennessee Code Annotated section 39-13-503(a)(3).

That statute defines rape as “the unlawful sexual penetration of a victim by the defendant or

the defendant by the victim . . . [and] [t]he defendant knows or has reason to know that the

victim is mentally defective, mentally incapacitated or physically helpless . . . .” T.C.A. §

39-13-503(a)(3). “Sexual penetration” is defined as “sexual intercourse, cunnilingus, fellatio,

-3-
anal intercourse, or any other intrusion, however slight, of any part of a person’s body or of

any object into the genital or anal openings of the victim’s, the defendant’s, or any other

person’s body[.]” T.C.A. § 39-13-501(7).

In his brief, Appellant does not argue that there was no penetration. Instead, he argues

that the victims had the mental capacity to consent to sex and that Appellant could not have

known that they could not consent. There was ample testimony by Dr. Fred Steinberg, who

tested and examined the victims, that the victims were both mildly mentally retarded and had

a low IQ. They both functioned at a five-year-old level with regard to their development,

including language development, self-direction, and socialization. He stated that neither

victim understood what sexual intercourse was. They both failed what Dr. Steinberg termed

the “personal safety test,” which measured their ability to say no. Dr. Steinberg also opined

that at the time of the rapes, the victims did not have the ability to consent to sexual

intercourse.

Regardless of this testimony, the question of the consent of the victim is not a

condition of rape under Tennessee Code Annotated section 39-13-503(a)(3). To be guilty

of rape under the statute in question, the State needed to prove that there was sexual

penetration and that Appellant knew or had reasons to know that the victims were “mentally

defective, mentally incapacitated or physically helpless.” T.C.A. § 39-13-503(a)(3).

At trial, the victims’ mother testified that she told their grandmother when Appellant

was present that the victims were never to be left alone. The victims’ aunt testified that she

had been around Appellant while he was dating her mother-in-law. She testified that on one

occasion Appellant and the victims’ grandmother were taking the victimsline-dancing. Their

aunt told Appellant that the victims were mentally retarded and that they needed to keep a

close eye on the victims because they were going to be in a large crowd of people. The

victim’s grandmother also testified that she told Appellant that the victims “had the mind of

a seven-year-old [child] and they had to be with [her] all the time or their mother or their

father.” In addition, one of the nurses who examined one of the victims said that she could

tell almost immediately that the victim she was examining had a mental deficiency.

As stated above, it is the province of the jury to determine the credibility of the

witnesses and the weight to be given to the evidence presented at trial. Pruett, 788 S.W.2d

at 561. Three witnesses testified that they informed Appellant that the victims had a mental

deficiency and were severely developmentally delayed. We conclude that there was ample

evidence upon which a reasonable trier of fact could find that Appellant knew of the victims’

mental defect or incapacity.

Therefore, this issue is without merit.

-4-
Sentencing

Appellant also argues that the sentence imposed by the trial court was excessive

because the trial court ordered the sentences to be served consecutively.

Appellate review of sentencing is for abuse of discretion. We must apply “a

presumption of reasonableness to within-range sentencing decisions that reflect a proper

application of the purposes and principles of our Sentencing Act.” State v. Bise, 380 S.W.3d

682, 707 (Tenn. 2012).

In making its sentencing determination, the trial court, at the conclusion of the

sentencing hearing, first determines the range of sentence and then determines the specific

sentence and the appropriate combination of sentencing alternatives by considering: (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 enhancement and mitigating factors; (6) any statistical information

provided by the administrative office of the courts regarding sentences for similar offenses;

(7) any statements the defendant wishes to make in the defendant’s behalf about sentencing;

and (8) the potential for rehabilitation or treatment. T.C.A. §§ 40-35-210(a), (b), -103(5);

State v. Williams, 920 S.W.2d 247, 258 (Tenn. Crim. App. 1995).

The trial court is still required to place on the record its reasons for imposing the

specific sentence, including the identification of the mitigating and enhancement factors

found, the specific factssupporting each enhancement factor found, and the method by which

the mitigating and enhancement factors have been evaluated and balanced in determining the

sentence. See Bise, 380 S.W.3d at 706, n.41; State v. Samuels, 44 S.W.3d 489, 492 (Tenn.

2001). Thus, under Bise, 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.” Bise, 380 S.W.3d at 710.

Under Tennessee Code Annotated section 40-35-115(a), if a defendant is convicted

of more than one offense, the trial court shall order the sentences to run either consecutively

or concurrently. A trial court may impose consecutive sentencing upon a determination that

one or more of the criteria set forth in Tennessee Code Annotated section 40-35-115(b)

exists. This section permits the trial court to impose consecutive sentences if the court finds,

among other criteria, that, “(2) [t]he defendant is an offender whose record of criminal

activity is extensive, . . .” T.C.A. § 40-35-115(b)(2). When imposing a consecutive

sentence, a trial court should also consider general sentencing principles, which include

whether or not the length of a sentence is justly deserved in relation to the seriousness of the

-5-
offense. See State v. Imfeld, 70 S.W.3d 698, 708 (Tenn. 2002). The imposition of

consecutive sentencing is in the discretion of the trial court. See State v. Adams, 973 S.W.2d

224, 230-31 (Tenn. Crim. App. 1997).

At the conclusion of the sentencing hearing, the trial court ordered that the sentences

be served consecutively because of his extensive criminal activity based upon Tennessee

Code Annotated section 40-35-115(b)(2). At the time of the generation of the sentencing

report, Appellant was fifty years old. Appellant’s criminal history began when he was

twenty-four years old with a conviction for driving with a revoked license. He then had

multiple convictions and dispositions for driving offenses, such as reckless driving, driving

under the influence (“DUI”), and driving with a revoked license. When he was twenty-six,

he committed an offense and was subsequently convicted of rape and sentenced to twelve

years. His next offense occurred when he was thirty-four, about eight years later. He was

convicted of DUI and theft. A year later at the age of thirty-five, he committed an offense

that resulted in a conviction for aggravated sexual battery and a ten year sentence. Nine years

later at the age of forty-four, he committed theft and aggravated burglary. These charges

resulted in convictions for those two offenses as well as a conviction for felony failure to

appear. He was sentenced to three years for these offenses. Then at the age of forty-eight

he committed the offenses at hand. It appears that Appellant has either been breaking the law

or serving a sentence for breaking the law for over twenty-years from the age of twenty-four

up to the current offenses. We agree with the trial court that this constitutes extensive

criminal history and warrants the imposition of consecutive sentences. Therefore, we

conclude that there was no abuse of discretion.

This issue is without merit.

CONCLUSION

For the foregoing reasons, we affirm the judgments of the trial court.

___________________________________

JERRY L. SMITH, JUDGE

-6-