State v. Samuel

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs November 7, 2006

STATE OF TENNESSEE v. TONY SAMUEL

Appeal from the Circuit Court for Lauderdale County
No. 7691 Joe H. Walker, Judge

No. W2006-00090-CCA-R3-CD - Filed July 12, 2007

The defendant was indicted for one count of aggravated rape and one count of aggravated kidnapping
of his live-in girlfriend’s fourteen-year-old, mentally-challenged daughter. A jury convicted the
defendant of both indicted offenses. The trial court sentenced the defendant to thirty-five years for
the aggravated rape and eighteen years for the aggravated kidnapping to be served concurrently to
each other, but consecutively to a previous sentence. On appeal, the defendant argues: (1) that the
evidence was insufficient to sustain his convictions of aggravated rape and aggravated robbery; (2)
that the trial court erred in allowing questions to jurors in voir dire regarding mental retardation; (3)
that the trial court erred in allowing testimony regarding the victim’s I.Q. test scores and capabilities;
(4) that the trial court erred in allowing testimony by a State witness regarding statements of the
victim; (5) that the trial court erred in allowing testimony from a lay witness regarding recency and
appearance of the injury to the victim; (6) that the trial court erred in determining that the victim was
competent to testify; and (7) that the trial court erred in sentencing the defendant to an enhanced and
consecutive sentence. After a thorough review of the record, we affirm the judgments of the trial
court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed.

JERRY L. SMITH , J., delivered the opinion of the court, in which JAMES CURWOOD WITT , JR., and
ROBERT W. WEDEMEYER , JJ., joined.

Kari I. Weber, Assistant Public Defender, Somerville, Tennessee, for the appellant Tony Samuel

Paul G. Summers, Attorney General and Reporter; Brian Clay Johnson, Assistant Attorney General;
Elizabeth Rice, District Attorney General; and Tracey Brewer, Assistant District Attorney General,
for the appellee, State of Tennessee.
 OPINION

The defendant lived in a house with April Powell and her son, D.P., and daughter, C.P.1 He
had lived in the house with April Powell and her children for around eight or nine years. Both C.P.’s
room and the room shared by Ms. Powell and the defendant were on the front of the house and faced
the street. Around 7:30 a.m., on June 8, 2004, April Powell drove Linda Buck and her daughter to
summer school. D.P. was not at home because he had spent the night at a friend’s house. After Ms.
Powell left, the defendant came into C.P.’s room and pulled off C.P.’s pants. He then had vaginal
intercourse with C.P. while he was choking her. C.P. stated that the intercourse hurt. At some point
afterwards, she took a shower and wiped off with a towel. C.P. was fourteen years old at the time
of the incident.

When Ms. Powell and Ms. Buck returned to the house around 7:40 a.m., C.P. ran out with
her pants unzipped, crying and screaming that the defendant had raped her. C.P. repeated the
accusations seven or eight times. The defendant said that C.P. was lying.

Everyone went into the house, and Ms. Powell told C.P. to change her clothes. Ms. Powell
took no action regarding C.P.’s accusations. Denise Estes came to get Ms. Buck to take her for an
interview. They took C.P. with them to get her away from the house. Ms. Buck and Ms. Estes
returned C.P. to her home after Ms. Buck’s interview.. Ms. Buck called her sister, Brenda Allen,
who subsequently reported the incident to the police between 11:00 a.m. and 12:00 p.m. the same
day. Ms. Buck and Ms. Allen came back to the house later that day, and Sergeant Rita Burnett was
at the house.

When Sergeant Burnett arrived at the victim’s home, the victim was across the street playing
with another child. The victim, who knew Sergeant Burnett by name, asked the officer if she was
looking for her. C.P. started crying and told Sergeant Burnett, “[The defendant] choked me, and he
put his thing in my pie-pie, and he was hunching on me.” C.P. also told the sergeant that the
defendant came into her room while she was in bed, ripped the covers off her bed, and pulled her
clothes down. The defendant told her that C.P. should not tell anyone and that he would kill her.
C.P. also said it felt like the defendant urinated on her. Sergeant Burnett noticed that C.P. had a
bruise-like mark as if someone had dug a fingernail into C.P.’s neck. After C.P. told Sergeant
Burnett what happened, Sergeant Burnett began collecting evidence. She collected C.P.’s
underwear, a white wash towel, a towel used by the defendant, and a pair of capri pants. Sergeant
Burnett did not take the sheets on the bed because they were in the washing machine. She also did
not collect the gown that C.P. was wearing during the incident because she could not find it.
Throughout the time that Sergeant Burnett was with C.P. at her house, the sergeant did not see the
victim’s mother or the defendant. Juvenile Officer Dawn Hemby did come to the house when
Sergeant Burnett was conducting her investigation.

1
As is Court policy, we will refer to the minor victim and her brother by their initials.

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 Sergeant Burnett took C.P. to the hospital. April Smith of the Tennessee Department of
Children’s Services was at the hospital when C.P. arrived. There were no parents with C.P. when
she arrived at the hospital. C.P. arrived at the hospital around 1:30 p.m., but was not seen until
around 5:00 p.m. Ms. Smith remained with the victim throughout her wait and during the
examination. She was informed the that C.P. was mentally-challenged. Sherry Fitzpatrick was the
nurse who assisted in C.P.’s examination and the assembling of the rape kit. The victim was very
anxious and frightened during the examination. The medical personnel were unable to get the victim
undressed and into a hospital gown. C.P. refused to have a pelvic exam, but internal vaginal swabs
were taken during the examination. There was no sign of external injury. C.P.’s mother had arrived
by the end of the examination.

Following the examination, Ms. Smith drew up a child protective services safety plan where
C.P. would stay with her aunt and not have any contact with the defendant. In addition, C.P.’s
contact with her mother was to be supervised by her aunt.

After the rape kit was assembled at the hospital, it was given to Sergeant Burnett. Sergeant
Burnett gave the rape kit and other bagged evidence to Officer Marilyn Johnson with the Ripley
Police Department. Officer Johnson took the evidence to the Tennessee Bureau of Investigation
(“TBI”) laboratory on June 9, 2004, which was within twenty-four hours of its collection. The bags
were all sealed when she received them and when she left them at the laboratory.

After the day in question, the defendant repeatedly called the victim’s home, where he had
resided with the victim’s mother. When D.P., the victim’s brother, answered the telephone, he told
the defendant to stop calling and hung up on the defendant. At one point, the victim’s cousin,
Cornelia Capers, was visiting Ms. Powell at her home. The phone rang repeatedly and Ms. Capers
asked Ms. Powell if she was going to answer the phone. Ms. Capers opined that it was probably the
defendant, and they could find out where he was. The phone continued to ring and Ms. Capers
answered the phone. In order to trick the defendant into returning home and turning himself into the
police, Ms. Capers told the defendant that C.P. had lied. Ms. Capers in fact believed C.P., but she
wanted the defendant to return.

On the day of the rape, Sergeant Burnett attempted to locate the defendant. She also
collected witness statements. Included in the statements were several telephone numbers from a
caller identification record from the defendant’s calls to the victim’s house. The numbers were from
an area code in Missouri, where the defendant had family. On June 10, 2004, Sergeant Burnett faxed
a warrant for the defendant to the authorities in Missouri. That same day, the defendant turned
himself in to the Ripley Police Department. He gave a statement to the police that he went into
C.P.’s room to look out of the window and that C.P. jumped up screaming that he had raped her.
The defendant also submitted voluntarily to have his blood drawn. Sergeant Burnett sent this sample
to the laboratory at the TBI.

Special Agent Kadria Debnam is a serology DNA analyst with the TBI. She received
evidence, including the rape kit and other evidence collected from the victim. On June 9, 2004

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Special Agent Debnam analyzed the evidence for a DNA match with the defendant. She was able
to find semen on the vaginal swabs included in the rape kit. However, there was not enough of a
sample to test for DNA. Special Agent Debnam also analyzed the victim’s underwear. There was
an insufficient amount of the sperm fraction to conduct DNA analysis. However, there was a
sufficient amount of the non-sperm fraction to conduct DNA analysis. Special Agent Debnam
testified that she found the defendant’s DNA in the sample she collected from the victim’s
underwear.

School psychologist Susan Conner testified at the trial. She stated that an I.Q. of 70 and
below is considered mentally retarded. Ms. Conner reviewed C.P.’s files and discovered that C.P.’s
I.Q. was 44. This score equates to an age-level of six or seven years old. Biologically, at the time
of the trial, the victim was fifteen, but intellectually she was six or seven. Ms. Conner’s experience
is that children with this range of I.Q. are generally honest. Ms. Conner had not interacted with C.P.
for about eight years and did not know C.P. or her family personally.

On October 4, 2004, the Grand Jury of Lauderdale County indicted the defendant for one
count of aggravated rape and one count of aggravated kidnapping. At the conclusion of the trial held
on September 20 and 21, 2005, a jury found the defendant guilty of both counts as charged. The trial
court held a sentencing hearing on October 5, 2005. The trial court sentenced the defendant to
eighteen years for the aggravated kidnapping and thirty-five years for the aggravated rape to be
served concurrently and at one hundred percent as a violent offender. The trial court also ordered
the defendant’s sentences to run consecutively to a sentence from a separate conviction. On
December 9, 2005, the trial court denied the defendant’s motion for new trial. The defendant filed
a timely notice of appeal.

ANALYSIS

The defendant argues seven issues in his appeal: (1) whether the trial court erred in allowing
questions to jurors in voir dire regarding mental retardation; (2) whether the trial court erred in
allowing testimony regarding the victim’s education records; (3) whether the trial court erred in
allowing testimony by a State witness regarding statements of the victim; (4) whether the trial court
erred in finding the victim competent to testify; (5) whether the trial court erred in allowing
testimony from a lay witness regarding recency and appearance of the injury to the victim; (6)
whether the evidence is sufficient to sustain his convictions for aggravated rape and aggravated
robbery; and (7) whether the trial court improperly sentenced the defendant to an enhanced and
consecutive sentence.

Voir Dire Questions

The defendant’s first issue is that the trial court erred during voir dire of the jury when it
allowed the State to question jurors regarding their knowledge of mental retardation and at trial when
it allowed a witness to testify regarding the victim’s I.Q. and developmental level. The defendant
argues that this was improper because the State did not indict the defendant for aggravated rape

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under 39-13-502(3)(B) which requires, “The defendant is aided and abetted by one (1) or more other
persons; and . . . (B) the defendant knows or has reason to know that the victim is mentally defective,
mentally incapacitated or physically helpless.” The State argues that the questions concerning and
the proof of C.P.’s mental retardation were submitted to explain the victim’s potential child-like
behavior during her testimony.

“The ultimate goal of voir dire is to [e]nsure that jurors are competent, unbiased, and
impartial.” State v. Cazes, 875 S.W.2d 253, 262 (Tenn. 1994). The conducting of the voir dire of
prospective jurors is in the discretion of the trial court. Id. Therefore, an appeal from a trial court’s
decision cannot be overturned by this Court unless it is apparent that the trial court abused its
discretion. See State v. Mickens, 123 S.W.2d 335, 375 (Tenn. Crim. App. 2003).

The defendant objected to the State’s questioning regarding the jurors’ knowledge of mental
retardation. In response to this objection, the State replied that “the voir dire is to determine if these
jurors can be fair and impartial, and the State has a right to know if they would be against or not be
fair and impartial to a mentally retarded child that’s going to testify.” The trial court overruled the
defendant’s objection.

C.P. was going to be called as a witness. At the time of the trial, she was fourteen and had
an I.Q. of 44, which put her at the same functioning level as a six- or seven-year-old child. The State
had a definite interest in determining whether any jurors would have a bias against believing the
victim because of her mental retardation. We do not see any abuse of discretion here.

Testimony Regarding C.P.’s Mental Retardation

The defendant also argues that the trial court erred in allowing Susan Conner to testify
regarding C.P.’s test scores and mental capabilities. As we begin our analysis, we note
well-established precedent providing “that trial courts have broad discretion in determining the
admissibility of evidence, and their rulings will not be reversed absent an abuse of that discretion.”
State v. McLeod, 937 S.W.2d 867, 871 (Tenn. 1996). Moreover, the Tennessee Rules of Evidence
embody, and our courts traditionally have acknowledged, “a policy of liberality in the admission of
evidence in both civil and criminal cases.” State v. Banks, 564 S.W.2d 947, 949 (Tenn. 1978); State
v. Robinson, 930 S.W.2d 78, 84 (Tenn. Crim. App. 1995). To be admissible, evidence must satisfy
the threshold determination of relevancy mandated by Tennessee Rule of Evidence 401. See, e.g.,
Banks, 564 S.W.2d at 949. Rule 401 defines “relevant evidence” as being “evidence having any
tendency to make the existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence.” Tenn. R. Evid. 401.
However, relevant “evidence may be excluded if its probative value is substantially outweighed by
. . . the danger of unfair prejudice.” Tenn. R. Evid. 403; see also Banks, 564 S.W.2d at 951.

The defendant objected to Ms. Conner’s testimony at the time she was called to the witness
stand. The defendant’s basis for the objection was that the State charged the defendant with
aggravated rape based upon bodily injury under T.C.A. § 29-13-502(a)(2), as opposed to a

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perpetrator being aided and abetted by another and the victim is mentally defective or incapacitated,
under T.C.A. § 39-13-502(a)(3)(B). For this reason, the defendant did not believe that this
information had “any bearing on the case-in-chief.” The defendant also argued that this testimony
would be more appropriate for sentencing. The trial court overruled the defendant’s objection
stating, “I think the jury has a right to know the mental capacity for lots of reasons, including testing
the credibility of the witness.”

In State v. Caughron, 855 S.W.2d 526 (Tenn. 1993), our supreme court allowed third party
testimony regarding the State’s primary witness to a murder. In Caughron, the key witness to a
murder was a fourteen-year-old girl. The trial court allowed the girl’s mother to testify that the girl
was “having trouble in school and crying a lot.” Caughron, 855 S.W.2d at 538-39. Our supreme
court stated, “We find no error, although the relevance of this evidence is marginal. Testimony about
April’s emotional reaction to the murder tends to bolster her credibility, as does testimony about her
continued contact with the Defendant.” Id. at 539.

The situation sub judice is analogous. Ms. Conner testified about the victim’s mental
retardation and I.Q. so as to allow the jury to accurately assess C.P.’s credibility when she testified.
We agree with the trial court that this testimony was at least marginally useful in the jury’s
assessment of the victim’s credibility, and find no error in its admission.

For these reasons, this issue is without merit.

Linda Buck’s Testimony

The defendant argues that the trial court erred in allowing Ms. Buck to testify that C.P. ran
to the car while screaming and crying that the defendant raped her. The defendant objected “to
anything that [C.P.] said.” The trial court overruled the defendant’s objection without comment.
The defendant argues that the trial court erred in not noting for the record which hearsay exception
applied.

While it might be helpful on appeal, this Court can find no legal requirement that a trial court
place its reasoning for overruling a hearsay objection on the record. We now turn to the question
as to whether C.P.’s statement fits into a hearsay exception. A statement is hearsay if “a statement,
other than one made by the declarant while testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted.” Tenn. R. Evid. 801(c). For a hearsay statement to be
admissible, it must fall within the hearsay exceptions provided at Rule 803 of the Tennessee Rules
of Evidence.

One of the long-recognized exceptions to the hearsay rule is the excited utterance exception
found at Rule 803(2) of the Tennessee Rules of Evidence. This exception applies to statements,
“relating to a startling event or condition made while the declarant was under the stress of excitement
caused by the event or condition.” In State v. Land, 34 S.W.3d 516, 528 (Tenn. Crim. App. 2000),
this Court stated that the “underlying theory of this exception is that circumstances may produce a

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condition of excitement which temporarily stills the capacity of reflection and produces utterances
free of conscious fabrication.” For a statement to fall within this exception, three criteria must be
met: (1) there must be a startling event or condition that causes the stress of excitement; (2) the
statement must relate to the startling event or condition; and (3) the statement must be made while
the declarant was under the stress of excitement. Id. at 528-29 (citing Neil P. Cohen, et. al.,
Tennessee Law of Evidence § 803(2).2 at 533-34 (3d ed. 1995)).

It is clear that C.P.’s statement falls within the excited utterance exception found at Rule
803(2) of the Tennessee Rules of Evidence. As for the first criteria, the defendant coming into the
victim’s room, pulling her pants down, and vaginally penetrating her would certainly be a startling
event. This is especially true when one considers the fact that C.P. is fourteen with an I.Q. of 44,
which puts her at the intellectual equivalent of a six- or seven-year-old child. As for the second
criteria, C.P.’s statement that the defendant had raped her, this unquestionably relates to the startling
event. The third criteria is also satisfied. Ms. Buck testified that C.P.’s mother could not have been
gone more than ten or fifteen minutes. The rape occurred in the short time span while C.P.’s mother
was gone. Clearly, C.P. would still have been under emotional and even physical stress from the
rape.

Because the statement in question fits within the excited utterance exception to the hearsay
rule, this issue is without merit.

Victim’s Competency to Testify

The defendant argues that the trial court erred when it determined that C.P. was competent
to testify. The defendant specifically argues that the trial court’s evaluation of C.P.’s competency
was not sufficiently thorough. The State argues that this issue is waived and, in the alternative, that
C.P. was competent to testify.

The State points out that the defendant failed to enter a contemporaneous objection to C.P.’s
testimony at trial. Typically, a defendant’s failure to make a contemporaneous objection during trial
constitutes a waiver of this issue. Tenn. R. Evid. 1023(a)(1); Tenn. R. App. P. 36(a) (stating that
“Nothing in this rule shall be construed as requiring relief be granted to a party responsible for an
error or who failed to take whatever action was reasonably available to prevent or nullify the harmful
effect of an error.”); State v. Cravens, 764 S.W.2d 754, 757 (Tenn. 1989). Nonetheless, we choose
to address this issue on the merits.

Rule 601 of the Tennessee Rules of Evidence states that every person is presumed competent
to be a witness. The Advisory Commission Comments go on to say that, “[v]irtually all witnesses
may be permitted to testify: children, mentally incompetent persons, convicted felons.” Under Rule
602, a prospective witness may testify as long as they have personal knowledge of the matter in
question and under Rule 603, the witness must swear to testify truthfully. It is in the trial court’s
discretion to determine whether the witness is competent to testify. Caughron, 85 S.W.2d at 538.
This Court cannot overturn a trial court’s decision absent an abuse of discretion. State v. Howard,

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926 S.W.2d 579, 584 (Tenn. Crim. App. 1996), overruled on other grounds, State v. Williams, 977
S.W.2d 101 (Tenn. 1998).

The trial court conducted a voir dire examination of C.P. outside the presence of the jury.
At this examination, the State asked if the victim knew the difference between a lie and telling the
truth. She replied that she did. The State then demonstrated that C.P. knew the difference between
a lie and the truth through giving an example of someone’s hair color. The trial court re-emphasized
that the victim was to tell the truth when the jury was returned to the courtroom.

We find no abuse of discretion by the trial court. As stated above, all witnesses are presumed
to be competent. The State and the trial court questioned C.P. outside the presence of the jury during
which time the victim demonstrated that she knew the difference between a lie and the truth. The
trial court determined that the victim was competent to testify. This Court finds ample support for
the trial court’s decision, and finds no error here.

Officer’s Testimony Regarding Bruise on Victim’s Neck

The defendant argues that the trial court erred in allowing Sergeant Burnett to testify
regarding the bruise on C.P.’s neck. Sergeant Burnett testified concerning the injury on the victim’s
neck at two separate points in her direct examination. The first occasion, the State asked if she had
seen any injury on C.P. Sergeant Burnett replied, “She had a mark. It wasn’t like a – it was kind of
like a bruise but like, you know, how you dig your nail in.” The defendant did not object to this
testimony. On the second occasion, the following exchange occurred:

Q. When you assisted the victim in this case, is there any doubt in your mind that
you saw the visible signs of injury to her neck?

A. There’s no doubt.

Q. Could you tell if that injury had been made recently or it was an old mark
from days gone by?

A. It was a recent –
[The defendant’s attorney]: Your Honor, I’d object. I don’t believe that
Sergeant Burnett is a medical professional and would be able to make that
assessment.

The Court: If you will restate your question, please.

Q. Sergeant Burnett, are you a mother?

A. Yes, I am.

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 Q. And during your experience of having children, have you been able to see
when they’ve had recent injuries about their persons?

A. Yes, ma’am.

Q. And as an individual that has seen this type of thing before, could you
recognize whether this was a recent injury or an old injury about her neck?

A. Yes, I could.

Q. And what was that?

A. Recent.

Q. No further questions.

[The Court]: The Court will allow that question and answer.

[The State]: Pass the witness.

The defendant specifically argues on appeal that this testimony by Sergeant Burnett was
improper medical proof of “bodily injury” offered through a lay witness. The State argues that the
defendant did not object to the witness’s testimony following the State’s laying of the foundation,
and, therefore, this issue is waived. In the alternative, the State argues that Sergeant Burnett’s
testimony was proper as opinion testimony under Rule 701 of the Tennessee Rules of Evidence.

This Court concludes that the defendant’s ultimate objection to Sergeant Burnett’s testimony
is sufficient to reserve this issue for review. We now turn to the issue at hand. “It is well-settled that
the propriety, scope, manner and control of the examination of witnesses is a matter within the
discretion of the trial judge, subject to review for abuse of discretion.” Caughron, 855 S.W.2d at
540. Rule 701 of the Tennessee Rules of Evidence states:

(a) Generally. – If a witness is not testifying as an expert, the witness’s testimony in
the form of opinions or inferences is limited to those opinions or inferences which
are
(1) rationally based on the perception of the witness and
(2) helpful to a clear understanding of the witness’s testimony or the determination
of a fact in issue.

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 In State v. Boggs, 932 S.W.2d 467 (Tenn. Crim. App. 1996), this Court allowed a vehicular
homicide victim’s daughter to testify about her mother’s physical disabilities in the defendant’s
sentencing hearing. 932 S.W.2d at 473-74. Boggs analyzed the version of Rule 701 that was in
effect prior to the 1996 amendment of the rule. Id. at 474; see e.g. Tenn. R. Evid. 701(a). This prior
version of Rule 701(a) was more restrictive than the current Rule 701(a), which mirrors Federal Rule
of Evidence 701. Neil P. Cohen, Sarah Y. Sheppeard & Donald F. Paine, Tennessee Law of
Evidence § 7.01[3] (Matthew Bender & Co. 2005); See also Fed. R. Evid. 701. In Boggs, this Court
stated, “[T]he admissibility of a lay witness’ testimony rests on whether the facts in issue are within
the range of knowledge or understanding of ordinary laymen. Likewise, expert testimony is only
necessary when the average person would not be knowledgeable on the subject matter at issue.”
(citations omitted) (citing J. Houston Gordon, The Admissibility of Lay and Expert Opinions, 57
Tenn. L. Rev. 103 (1989)). This Court’s statement leads to the conclusion that a lay witness may
testify to matters that are in the common experience of most individuals.

There is also a line of cases in Tennessee common law that hold:

The rule in this State is that a lay witness may testify to his own physical condition
or that of another person provided that the witness first states the detailed facts and
then gives his opinion or conclusion. Norton v. Moore, 40 Tenn. 480; Stephens v.
Clayton, 22 Tenn. App. 449, 124 S.W.2d 33; Hamlin & Allman Iron Works v. Jones,
200 Tenn. 242, 292 S.W.2d 27.

Simpson v. Satterfield, 564 S.W.2d 953, 955-56 (Tenn. 1978) (quoting McKenzie v. Campbell and
Dann Manufacturing Co., 209 Tenn. 475, 354 S.W.2d 440 (1962)). This line of cases supports the
current prevalent procedure of requiring witnesses to lay a factual foundation before testifying
concerning their opinion.

In the case at hand, Sergeant Burnett initially testified that she saw a mark on the victim’s
neck that looked like someone had dug his fingernail into the victim’s skin. The defendant objected
to the second instance when Sergeant Burnett stated that the mark looked like it was a recent mark.
The State then laid the factual foundation to support Sergeant Burnett’s testimony by establishing
that she was a mother and had seen several injuries on her own children and was able to discern if
they were recent or not.

We conclude that the age of a mark where a fingernail has dug in an individual’s skin is
within the common knowledge of the general public, especially a mother. If an opinion is based
upon a lay witness’s own observations, his or her conclusions require no expertise and are within the
range of common experience, the opinion is admissible. State v. Wingard, 891 S.W.2d 628, 636
(Tenn. Crim. App. 1994) overruled on other grounds by State v. James, 81 S.W.3d 75 (Tenn. 2002).
We also find that this testimony was both “rationally based on the perception of the witness “and
helpful to a clear understanding of . . . the determination of a fact in issue.” See Tenn. R. Evid.

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701(a). Sergeant Burnett’s testimony was important to establishing whether the victim suffered
bodily injury during the rape.

For these reasons, we conclude that the trial court did not abuse its discretion in allowing
Sergeant Burnett’s testimony into evidence.

Sufficiency of the Evidence

The defendant also argues that the evidence is insufficient to support his convictions for
aggravated rape and aggravated kidnapping.2 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.” See 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).

Aggravated Rape

Aggravated rape, under the defendant’s indictment, is defined as, “unlawful sexual
penetration of a victim by the defendant or the defendant by a victim accompanied by the following
circumstances: . . . (2) The defendant caused bodily injury.” T.C.A. § 39-13-502(a)(2). Sexual
penetration is defined as, “sexual intercourse, . . . or any other intrusion, however slight, of any part

2
Neither party raises the issue as to whether the defendant’s convictions for both aggravated rape and aggravated
kidnapping violate his due process rights as set out in State v. Anthony, 817 S.W .2d 299 (Tenn. 1991). In this particular
case, the defendant’s sentence for aggravated rape is longer than his sentence for aggravated kidnapping, and the
sentences were ordered to be served concurrently. Even if there is an Anthony issue, setting aside the aggravated
kidnapping conviction would not change the defendant’s sentence. Therefore, we find no substantial right of the
defendant so effected as to warrant plain error review. See, State v. Smith, 24 S.W .3d 274, 283 (Tenn. 2000).

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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, but emission of semen is not required . . . .” T.C.A. § 39-13-501(7).
Bodily injury “includes a cut, abrasion, bruise, burn or disfigurement, and physical pain or temporary
illness . . . .” T.C.A. § 39-11-106(a)(2) (emphasis added).

The defendant argues that the evidence is insufficient because the victim’s testimony
regarding the rape was “too vague” to prove penetration. The defendant also points to the lack of
medical and forensic evidence of the rape. The defendant further argues that bodily injury was not
proven through the testimony of the medical personnel, and Sergeant Burnett’s testimony of a bruise
was not sufficient to prove injury.

The victim testified that the defendant came into her room and pulled off her pants. At trial,
the State brought out that the victim called a penis “a thing” and a vagina “a hole.” She testified that
the defendant touched her on her body and the defendant stuck his thing in the hole, in reference to
herself. Nurse Fitzpatrick testified that the victim was very frightened at the hospital and would not
allow a pelvic exam, but did allow medical personnel to take vaginal swabs. The rape kit with the
vaginal swabs and other evidence, including the victim’s underwear, were sent to Special Agent
Debnam. Special Agent Debnam determined that the vaginal swabs did contain semen, however,
there was not enough to test. She was, however, able to match the defendant’s DNA with semen
sample taken from the victim’s underwear. Sergeant Burnett’s testimony established that C.P.
suffered a bruise during the rape. Moreover, C.P. testified that the intercourse caused her pain and
that the defendant choked her during the rape.

The evidence is sufficient to support the aggravated rape conviction.

Aggravated Kidnapping

Aggravated kidnapping is defined as, “false imprisonment, as defined in § 39-13-302,
committed: (1) To facilitate the commission of any felony or flight thereafter . . . .” T.C.A. § 39-13-
304(a)(1). False imprisonment occurs when an individual, “knowingly removes or confines another
unlawfully so as to interfere substantially with the other’s liberty.” T.C.A. § 39-13-302(a).

The victim testified that the defendant entered her bedroom and had intercourse with her.
She stated that while he was in her bedroom he choked her. Certainly a fair inference is that C.P.
was not free to leave her room at this time. The victim’s testimony also supports the conclusion that
the defendant was confining the victim as required by T.C.A. § 39-13-302(a) to commit aggravated
rape. As we stated above, 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.

Because we find that a rational trier of fact could find the defendant guilty of every element
of aggravated rape and aggravated kidnapping, we conclude that the evidence is sufficient to support
the defendant’s convictions for both crimes. Therefore, this issue is without merit.

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 Sentencing

The defendant’s final issue is that the trial court erred in sentencing him to thirty-five years
at 100% for aggravated rape and eighteen years at 100% for aggravated kidnapping, to be served
concurrently to each other and consecutively to a previous sentence of seven years at thirty-five
percent.3 “When reviewing sentencing issues . . . , the appellate court shall conduct a de novo review
on the record of such issues. Such review shall be conducted with a presumption that the
determinations made by the court from which the appeal is taken are correct.” T.C.A. §
40-35-401(d). “However, the presumption of correctness which accompanies the trial court’s action
is conditioned upon the affirmative showing in the record that the trial court considered the
sentencing principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169
(Tenn. 1991). In conducting our review, we must consider the defendant’s potential for
rehabilitation, the trial and sentencing hearing evidence, the pre-sentence report, the sentencing
principles, sentencing alternative arguments, the nature and character of the offense, the enhancing
and mitigating factors, and the defendant’s statements. T.C.A. §§ 40-35-103(5), -210(b); Ashby, 823
S.W.2d at 169. We are to also recognize that the defendant bears “the burden of demonstrating that
the sentence is improper.” Ashby, 823 S.W.2d at 169.

The trial court made the following findings at the sentencing hearing:

I’ve reviewed the presentence report and find that the defendant should be
sentenced as a multiple offender, having a minimum of two prior felony convictions
within the next two lower felony classes.

I’ve considered the principles of sentencing, the nature and characteristics of
the criminal conduct involved.

I find, under T.C.A. 40-31-114, that enhancing factor number one applies;
that is, the defendant has a previous history of criminal convictions or criminal
behavior in addition to what was necessary to establish the appropriate range. The
victim in this matter had a slight mental disability. I give that little weight, but not
much weight. And that the defendant was on bond or bail at the time of the
commission of this offense.

The Court finds, under T.C.A. 40-35-113, that the defendant did not cause
serious bodily injury by his actions.

3
The Appellant does not raise the issue of the application of enhancing factors under the United States Supreme
Court’s decisions in Blakely v. Washington, 542 U.S. 296 (2004) and in Cunningham v. California, 549 U.S. __, 127
S.Ct. 856 (2007) with regard to the trial court’s application of the enhancement factors. Therefore, this issue is waived.
Because the defendant has not put forth an argument relying on the factors warranting plain error review, we decline to
address this issue.

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 The Court finds enhancing factors greatly outweigh the mitigating factors,
and sentences the defendant in Count 1 to 35 years as a multiple offender, to serve,
under T.C.A. § 40-35-501, a hundred percent of the sentence; and in Count 2
sentences the defendant as a multiple offender to 18 years, to serve a hundred percent
under T.C.A. 40-35-501.

The defendant is on community supervision for life under T.C.A. 39-13-524.
He is subject to the STSO Act under T.C.A. 39-13-701, and the SORM Act under
T.C.A. 40-39-101.

The Court finds that the defendant was released on bond in Docket Number
7690, where he was charged with a felony offense with an offense date of May 27,
2004. These acts were committed June 8, 2004, and that under Rule 32 the defendant
is required to be sentenced to consecutive sentencing, and under T.C.A. 40-20-111
it requires consecutive mandatory sentencing. The Count 1 and Count 2 will be run
concurrently but consecutive to Docket Number 7690.

Is there anything else we need to address?

[Defendant’s counsel]: Your Honor, I was unaware of anything in the record that Mr.
Samuel was on bond. . . .

[The Court]: All right. I’ll ask the clerk to get Docket Number 7690 to make a
determination, so I can make a determination.

In addition to which, in case that’s correct, the Court finds that the defendant
is a professional criminal who has devoted a good portion of his life to criminal acts;
that he has a record of criminal activity that’s extensive, having been convicted of
multiple offenses including delivery of cocaine, theft, aggravated burglary, forgery,
burglary, and other convictions; that he’s a dangerous offender whose behavior in
Docket Number 7690 indicates little or no regard for life and has no hesitation about
committing a crime; and that the Court believes that consecutive sentencing is the
appropriate sentence in this matter, and runs the sentence in 7690 consecutive to the
other – I’m sorry – 7691 consecutive to 7690, whether he was on bond at the time or
not.

The Court finds that – the Court specifically finds that the sentence to run
consecutive is congruent with the principles of sentencing and necessary for the
protection of society; that the defendant has been tried before on various forms of
release status without success, and that he has a long history of criminal convictions
and criminal behavior; that consecutive sentencing between 7690 and 7691 is
reasonably related to the severity of the offenses committed, that it serves to protect
the public or society from further criminal acts from this defendant who has resorted

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 to aggravated criminal conduct, and it’s congruent with the general principles of
sentencing.

And to correct my initial statement on the record, I believe, reviewing the file
which I now have in front of me in 7690, that counsel was probably correct, or is
correct, that the criminal offense occurring on May 27, 2004, I do not see a bond in
the file indicating that the defendant was on release status at the time of the
commission of the acts in 7691, and I’ll correct that on the judgment form also by the
deletion of that language on the judgment form.

But even if not mandatory consecutive, the Court feels consecutive sentencing
is appropriate in this case. Okay.

(Emphasis added).

The trial court sentenced the defendant as a Range II Multiple Offender. To qualify as a
Range II, Multiple Offender, a defendant must have received “[a] minimum of two (2) but not more
than four (4) prior felony convictions within the conviction class, a higher class, or within the next
two (2) lower felony classes . . . .” Aggravated rape is a Class A felony. T.C.A. § 39-13-502(b).
Aggravated kidnapping is a Class B felony. T.C.A. § 39-13-304(b)(1). The defendant’s presentence
report contains two Class C felonies and two Class D felonies, which would qualify him as a Range
II Multiple Offender. In 1991, the defendant was convicted for aggravated burglary, a Class C
felony. T.C.A. § 39-14-403(b). In 1993, the defendant was convicted of delivery of a schedule II
drug less than .5 grams, also a Class C felony. T.C.A. § 39-17-417(b)(1). In 1998, the defendant
was convicted for burglary-other than habitation, which is a Class D felony. In May of 2004, before
the current offense occurred, the defendant committed both burglary-other than a habitation, a Class
D felony, and theft of property $500-$1000, a Class E felony.

The defendant argues that the trial court erred in not specifically stating the convictions that
it was relying upon to sentence the defendant as a Range II Multiple Offender. However, the
defendant stipulated to the presentence report and, therefore, is bound by its contents. Because the
presentence report supports the decision of the trial court with regard to his sentencing range, we find
no error in the trial court’s failure to set out the specific convictions in the record.

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 Consecutive Sentence

The defendant also argues that the trial court erred in ordering the defendant to serve his
current sentences consecutively to a sentence from a previous conviction.4 The trial court originally
ordered consecutive sentences because of the mistaken belief that the defendant was on bond at the
time he committed the current offense. However, after realizing the mistake, the trial court set out
additional reasons to support consecutive sentencing. A trial court may impose consecutive
sentencing upon a determination that one or more of the criteria set forth in T.C.A. § 40-35-115(b)
exists. This section permits the trial court to impose consecutive sentences if the court finds, among
other criteria, that “[t]he defendant is a professional criminal who has knowingly devoted the
defendant’s life to criminal acts as a major source of livelihood; (2) [t]he defendant is an offender
whose record of criminal activity is extensive.” T.C.A. § 40-35-115(b)(1), (2).

The defendant’s presentence report begins with a conviction for aggravated burglary when
the defendant was twenty-three years old. From that time forward, he was convicted for theft eight
times, delivery of a schedule II drug once, forgery three times, burglary other than a habitation twice
and other various traffic violations. On the date of the final offenses included in the report, the
defendant was thirty-six years old. The few gaps in time between offenses roughly correlate with
the defendant’s incarceration for those convictions. In addition, the majority of the crimes listed
above all deal with the defendant obtaining money. The presentence report includes a listing of
various construction jobs, as well as temporary positions, which were of short duration and from
which he resigned. These convictions support the trial court’s findings that the defendant is a
professional criminal and used these criminal acts as a major source of his livelihood, as well as the
fact that the defendant has an extensive criminal record. We conclude that the defendant’s record
meets the criteria for consecutive sentencing set out in T.C.A. § 40-35-115(b)(1) and (2).

We find that the sentence imposed by the trial court is supported by the record. Therefore,
this issue is without merit.

4
W e note that the United States Supreme Court’s decisions in Blakely v. Washington, 542 U.S. 296 (2004), and
Cunningham v. California, 549 U.S. __, 127 S.Ct. 856 (2007), which has called into question our supreme court’s
decision in State v. Gomez, 163 S.W.3d 632 (Tenn. 2005), do not affect our review of consecutive sentencing issues.
Before our supreme court’s decision in Gomez, it had specifically noted that Blakely did not impact our consecutive
sentencing scheme. State v. Robinson, 146 S.W .3d 469, 499 n. 14 (Tenn. 2004). In addition, this Court has consistently
found that Blakely does not affect consecutive sentencing determinations. See State v. Rose Marie Hernandez, No.
M2003-01756-CCA-R3-CD, 2004 W L 2984844, at *4 (Tenn.Crim.App., Nashville, Dec. 16, 2004); State v. Earice
Roberts, No. W 2003-02668-CCA-R3-CD, 2004 W L 2715316, at *15 (Tenn. Crim. App., Jackson, Nov. 23, 2004); State
v. Lawrence Warren Pierce, No. M2003-01924-CCA-R3-CD, 2004 WL 2533794, at *16 (Tenn. Crim. App., Nashville,
Nov. 9, 2004).

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 CONCLUSION

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

___________________________________
JERRY L. SMITH, JUDGE

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