The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
MAY SESSION, 1998 June 17, 1998
Cecil W. Crowson
STATE OF TENNESSEE, ) Appellate Court Clerk
C.C.A. NO. 01C01-9710-CC-00443
)
Appellee, )
)
) DICKSON COUNTY
VS. )
) HON. ROBERT BURCH
DAVID WAYNE BATEMAN, ) JUDGE
)
Appe llant. ) (Direct Appeal - Rape of a Child)
FOR THE APPELLANT: FOR THE APPELLEE:
CLIFFORD K. MCGOWN JOHN KNOX WALKUP
113 North Court Squ are Attorney General and Reporter
Wa verly, TN 37185
DEB ORA H A. T ULLIS
SHIPP R. WEEMS Assistant Attorney General
District Public Defender 425 Fifth Avenu e North
CAREY THOMPSON Nashville, TN 37243
Assistant Dist. Public Defender
P. O. Box 160 DAN ALSOBROOKS
Charlotte, TN 37036-0160 District Attorney General
ROBERT WILSON
Assistant District Attorney
P. O. Box 580
Charlotte, TN 37036
OPINION FILED ________________________
AFFIRMED
JERRY L. SMITH, JUDGE
OPINION
A Dickson Co unty jury convicted A ppellant, David W ayne Bateman, of rape
of a child. After a sentencing hearing where the court did not find any mitigating
factors and found tw o enha ncing fac tors, the trial co urt sente nced A ppellant to
twenty-five years incarceration in the Tennessee Department of Correction to be
served at 100% pursuant to Tennessee Code Annotated § 40-35-50 1(I)(1) &(2).
In additio n, the tria l court fo und A ppellant guilty of criminal contempt for an
obscene outburst at the sentencing h earing, and se ntenced him to serve ten days
consecu tive to his other sentence. In this appeal Appellant maintains the
evidence of his guilt is insufficient and that his sentence is excessive.
After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.
FACTS
At the time of the offense, Appellant was living with his uncle, Allen Brown,
along with Mr. Br own’s fam ily. On Ma y 4, 1996 , the Brow ns aske d Appe llant to
babys it their two children, ages eight and three.1 Appellant confessed that on that
evening, he penetra ted the three year old female’s anus with his penis and
inserted his fingers into her vagina.
On June 12, 1996, the three year old was examined by Dr. Jeff Gordon. At
trial, Dr. Gordon qualified as an exp ert and testified that he determined the ch ild’s
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It is policy of this C ourt to pro tect the iden tity of the child victim s of sex ual assa ult.
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hymen was intact and her vaginal area normal. He further testified that he found
deep bruising in the child’s anus which circled the rectal opening. He opined that
this bruising w as the re sult of a circular, firm object penetrating the child’s rectum.
He testified that such injury was c onsisten t with the wou nds on e would expect to
see in a child who has been sodomized.
I. Sufficiency
Appellant challenges the sufficiency of the convicting evidence. When an
appe llant challe nges the su fficienc y of the e videnc e, this C ourt is o bliged to
review that challenge a ccording to ce rtain well-settled principles. A verdict of
guilty by the jury, approved by the trial judge, a ccredits 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). Although an accused is originally cloaked with a
presumption of innocence, a jury verdict removes this presumption and replaces
it with one of guilt. State v. Tug gle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence,
on appeal, the burden of proof rests with Appellant to demonstrate the
insufficiency of the conv icting evide nce. Id. On a ppea l, “the [S ]tate is entitled to
the strong est leg itimate view of the evidence as well as all reasonable and
legitimate inference s that ma y be draw n therefro m.” Id. (citing State v. Cabbage,
571 S.W .2d 832, 835 (Tenn. 197 8)). Wh ere the sufficiency of the evidence is
contested on appea l, the relevant question for the reviewing cou rt is whether any
rational trier of fact could have found the accused guilty of every element of the
offense beyond a reasonable doub t. Harris , 839 S.W .2d 54, 75 ; Jackson v.
Virgin ia, 443 U .S. 307, 3 19, 99 S .Ct. 2781 , 2789, 61 L.Ed.2d 560 (19 79). In
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conducting our evalua tion of th e con victing e videnc e, this C ourt is precluded from
reweighing or recon sidering th e eviden ce. State v. Morgan, 929 S.W.2d 380, 383
(Tenn . Crim. A pp. 199 6); State v. Mathews, 805 S.W.2d 776, 779 (Tenn. Crim.
App. 1990). Moreover, this Court may not subs titute its own inferences “for those
drawn by the trier of fact from circum stantial evidence.” Id. at 779 . Finally , the
Tennessee Rules of Appellate Procedure, Rule 13(e) provides, “finding s of gu ilt
in criminal actions whether by the trial court or jury shall be set aside if the
evidence is insufficient to suppo rt the find ings by the trier of fact beyond a
reasonab le doubt.” See also State v. Mathews, 805 S.W.2d at 780.
Upon this record, we find ample evidence for the jury to have found
Appe llant guilty of the crime a s charg ed. Th is issue ha s no m erit.
II. Sentencing
Appellant also challenges the length of the sentence imposed by the trial
court. When a defendant complains of his or her s entenc e, we m ust cond uct a
de novo review with a presumption of correctness. Tenn. Code Ann. § 40-35-
401(d). The burden of showing that the sentence is improper is upon the
appealing party. Tenn. Code Ann. § 40-35-401(d) Sentencing Commission
Comments. This pre sump tion, howe ver, is cond itioned up on an a ffirmative
showing in the record that the trial court considered the sentencing principles and
all the releva nt facts an d circum stance s. State v. Ashby, 823 S.W.2d 166, 169
(Tenn. 19 91).
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The Sentencing Reform Act of 1989 established specific procedures which
must be followed in sentencing. These procedures, codified at Tenn. Code Ann.
§ 40-35-210, mandated the court’s consideration of the following:
(1) The evidence, if any, received at the trial and the
sentencing hearing; (2) [t]he presentence report; (3) [t]he
principles of senten cing and argum ents as to sentencing
alternatives; (4) [t]he nature and characteristics of the
criminal conduct involved ; (5) [e]vidence and information
offered by the parties on the enhancement and mitigating
factors in §§ 40-35-113 and 40-35-114; and (6) [a]ny
statement the de fenda nt wish es to m ake in his own b ehalf
about sentencing.
Tenn. Code Ann. § 40-35-210.
The Sentencing Reform Act also provides that the mid-range sentence
within the range is the presumptive sentence for this offense. The court must
begin w ith the mid-range sentence and enha nce th at sen tence to app ropria tely
reflect any statutory enhancement factors that the court finds to be present. After
enhancing the sentence, the court must reduce the sentence appropriate to the
weight of any m itigating facto rs that the c ourt finds. T he weig ht to be given each
factor is left to the discretion of the trial judge. State v. Shelton, 854 S.W.2d 116,
123 (Ten n. Crim. App . 1992).
The Sentencing Reform Act also provides that the trial court shall place on
the record eithe r orally o r in writing what e nhan cem ent or m itigating factors it
found, if any. These finding s are crucial for review o f the trial court’s decision
upon appe al.
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In the matter sub judice, Appellant contends that the trial court erred in not
considering the mitigating factor of Appellant’s youth in determining his sentence,
and in considering the two enhancement factors of particular vulnerability of the
victim due to age , and o f Appe llant’s abuse of a private position of trust. We do
not agree. Nothing in the rec ord dem onstra tes tha t Appe llant’s yo uth ca used him
to be unaware of the potentially devastating consequences of his actions.
Further, it is apparent that the child’s te nder ag e served to mak e her p articula rly
vulner able to this typ e of offe nse in that sh e cou ld not re sist Ap pellan t, nor co uld
she easily articulate what had oc curred to her. See , State v. Poo le, 945 S.W.2d
93, 96 (Te nn. 199 7). Furthe r, from the testimon y presen ted at trial, and from
Appellant’s own statement, it is obvious that Appellant abused the position of
trust placed in him as a member of the victim’s household in order to accomplish
this crime . This issu e is withou t merit.
Accordingly, the judgment of the trial court is affirmed.
____________________________________
JERRY L. SMITH, JUDGE
CONCUR:
___________________________________
GARY R. WADE, PRESIDING JUDGE
___________________________________
DAVID G. HAYES, JUDGE
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