# State v. David Bateman > Court of Criminal Appeals of Tennessee · June 17, 1998 URL: https://www.frixlaw.com/law-library/cases/1082639 ## Case - **Court:** Court of Criminal Appeals of Tennessee - **Decided:** June 17, 1998 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/1082639 ## Opinion text 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 1 It is policy of this C ourt to pro tect the iden tity of the child victim s of sex ual assa ult. -2- 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 -3- 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). -4- 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. -5- 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 -6- --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1082639. Public record. Not legal advice.