State v. Tyrone W. Vanlier, Sr. v. State ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
MAY 1997 SESSION
September 19, 1997
Cecil W. Crowson
Appellate Court Clerk
)
STATE OF TENNESSEE, )
) C.C.A. No. 01C01-9608-CR-00341
Appellee, )
) Davidson County
V. )
) Honorable Seth Norman, Judge
)
TYRONE W. VANLIER, SR., ) (Rape of a Child--Two Counts)
)
Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
Roger K. Smith Charles W. Burson
Attorney at Law Attorney General & Reporter
Suite 115
104 Woodmont Boulevard Peter M. Coughlan
Nashville, TN 37205 Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
Victor S. Johnson III
District Attorney General
Lila Statom
Assistant District Attorney General
Washington Square, Suite 500
222-2nd Avenue North
Nashville, TN 37201-1649
OPINION FILED: ___________________
CONVICTIONS AFFIRMED;
RESENTENCING ORDERED AS TO
CONSECUTIVE SENTENCES
PAUL G. SUMMERS,
Judge
OPINION
The appellant, Tyrone W. Vanlier, Sr., was convicted by a jury of two
counts of rape of a child. He was sentenced to twenty-one years for each count
with the sentences to be served consecutively. On appeal, the appellant
presents three issues for our review: (1) whether the evidence was sufficient to
support the jury verdict of guilt beyond a reasonable doubt; (2) whether the trial
court properly applied Tenn. Code Ann. §§ 40-35-114(5), (6), (7), and (9) (Supp.
1993) as enhancement factors; and (3) whether the trial court properly imposed
consecutive sentences pursuant to Tenn. Code Ann. § 40-35-115(b)(5) (1990).
We affirm the appellant’s convictions and remand for resentencing as to the
issue of consecutive sentences.
The appellant and the victim’s mother had a long-term relationship, which
included the birth of a son. The appellant, who had lived in the home with the
victim intermittently for several years, was convicted of raping the victim anally
and vaginally in a single episode that occurred in June 1993.
First, the appellant challenges the sufficiency of the evidence. He
contends that the evidence is insufficient to show penetration, which is one of the
elements of the crime. The state argues that there is ample evidence that the
appellant raped the victim anally and vaginally. The state maintains that the
tears in the victim’s rectum and vagina, as well as the semen found in both
areas, indicate penetration.
Great weight is accorded jury verdicts in criminal trials. Jury verdicts
accredit the state’s witnesses and resolve all evidentiary conflicts in the state’s
favor. State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983); State v. Banes, 874
S.W.2d 73, 78 (Tenn. Crim. App. 1993). On appeal, the state is entitled to both
the strongest legitimate view of the evidence and all reasonable inferences which
may be drawn therefrom. State v. Cabbage, 571 S.W.2d 832 (Tenn. 1978).
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Moreover, guilty verdicts remove the presumption of innocence, enjoyed by
defendants at trial, and replace it with a presumption of guilt. State v. Grace,
493 S.W.2d 474 (Tenn. 1973). Appellants, therefore, carry the burden of
overcoming a presumption of guilt when appealing jury convictions. Id.
When appellants challenge the sufficiency of the evidence, this Court
must determine whether, after viewing the evidence in a light most favorable to
the prosecution, any rational trier of fact could have found the essential elements
of a crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979);
Tenn. R. App. P. 13(e); State v. Duncan, 698 S.W.2d 63 (Tenn. 1985). The
weight and credibility of a witness’ testimony are matters entrusted exclusively to
the jury as the triers of fact. State v. Sheffield, 676 S.W.2d 542 (Tenn. 1984);
Byrge v. State, 575 S.W.2d 292 (Tenn. Crim. App. 1978).
Upon listening to the testimony at trial, viewing the witness’ demeanor,
and considering the witness’ testimony in light of all the facts in the case, the jury
chose to accredit the state’s witnesses. Assessing the credibility of witnesses is
the purview of the jury. State v. Banes, 874 S.W.2d 73, 78 (Tenn. Crim. App.
1993). Accordingly, after reviewing the evidence in a light most favorable to the
state, we conclude that the record supports the appellant’s convictions.
Second, the appellant challenges the trial court’s use of the following four
enhancement factors: Tenn. Code Ann. §§ 40-35-114(5), (6), (7), and (9) (Supp.
1993). The appellant first argues that Tenn. Code Ann. § 40-35-114(5) was
improperly applied to enhance his sentence. This statute states: “The defendant
treated or allowed a victim to be treated with exceptional cruelty during the
commission of the offense.” The state argues that this factor applies because
the victim suffered tears to her vaginal and anal areas and suffered emotional
trauma.
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The appellant argues that in order for the enhancement factor of
“exceptional cruelty” to apply, something extra, over and above the injuries
suffered as a result of the attack, must be present. The appellant cites two
cases in support of his argument: State v. Holland, 860 S.W.2d 53 (Tenn. Crim.
App. 1993) and State v. Davis, 825 S.W.2d 109 (Tenn. Crim. App. 1991). In
Holland, the victim was “beaten and bruised all over her body.” Holland, 860
S.W.2d at 61, n.18. Also, in Davis, the rape victim was forced to disrobe and to
be bound; and the defendant urinated in the victim’s mouth. Davis, 825 S.W.2d
at 113. The appellant contends that such cruelty was not present in this case,
and therefore, this enhancement factor should not have been applied.
We agree with the appellant that his sentence should not have been
enhanced based upon Tenn. Code Ann. § 40-35-114(5). We do not question the
injuries suffered by the victim. However, such injuries are consistent with those
flowing from the crime itself. Legally, they do not warrant enhancing the
appellant’s sentence under Tenn. Code Ann. § 40-35-114(5).
Next, the appellant challenges the trial court’s use of Tenn. Code Ann.
§ 40-35-114(6): “The personal injuries inflicted upon . . . the victim [were]
particularly great.” The state argues that the damage to the victim’s mental
health makes this enhancement factor applicable. The appellant, however,
contends that any damage to the victim’s mental health does not rise to the level
of a “particularly great” injury, citing State v. Jones, 883 S.W.2d 597 (Tenn.
1994).
In Jones, our Supreme Court stated that the following conditions “satisfy
the definition of a ‘particularly great’ injury:” “substantial risk of death,” “protracted
unconsciousness,” “extreme physical pain,” “protracted or obvious
disfigurement,” and “protracted loss or substantial impairment of a function of a
bodily member, organ, or mental faculty.” Jones, 883 S.W.2d at 602.
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The evidence indicated that the victim attended several therapy sessions
before stopping them approximately eleven months after the offense. Although
there was some testimony about future repercussions to the victim, there was no
evidence that her injuries arose to the criteria as defined by our Supreme Court.
Therefore, we agree with the appellant that Tenn. Code Ann. § 40-35-114(6)
was improperly applied to enhance his sentence.
Next, the appellant challenges the trial court’s use of Tenn. Code Ann.
§ 40-35-114(7): “The offense involved a victim and was committed to gratify the
defendant’s desire for pleasure or excitement.” The state maintains that the
appellant acted to gratify his desire for sexual pleasure.
The appellant argues that “the state did not prove or argue the
defendant’s motive concerning this enhancement factor” and that “the trial court
did not find that a motive for the defendant in committing the offenses was to
gratify the defendant’s desire for pleasure or excitement.” In support of his
argument, the appellant in his brief cites State v. Kissinger, 922 S.W.2d 482(Tenn. 1996) and State v. Harris, 866 S.W.2d 583 (Tenn. Crim. App. 1992).
In Kissinger, our Supreme Court considered the issue of whether an
orgasm was sufficient proof that an offense was committed to satisfy a
defendant’s desire for pleasure or excitement. The court observed:
The essence of factor (7) is the legislative determination
that those who are motivated to commit a crime to gratify
their own desire for pleasure or excitement should be
punished more severely than those who are not. The focus
is the offender’s motive, not the eventual result.
. . . That orgasm did or did not occur is simply one factor
a court may consider in determining whether the offender
committed the offense to gratify the offender’s desire for
pleasure or excitement. That an offender experienced
orgasm does not in and of itself prove the existence of
the factor. Likewise, that orgasm did not occur does not
necessarily negate the finding.
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Kissinger, 922 S.W.2d at 490-91. In Harris, this Court observed that “the
sentencing court must scrutinize this enhancement factor very closely before
applying it in cases of rape. Common sense would dictate that an enhancement
factor which is normally present in a certain type of crime should not carry much
weight in and of itself.” Harris, 866 S.W.2d at 588.
The appellant’s own testimony regarding the victim and how he thought
that something might occur the night of the rape support the state’s argument
that the appellant acted to gratify his desire for pleasure or excitement.
Therefore, we agree with the state that Tenn. Code Ann. § 40-35-114(7) was
properly applied to enhance the appellant’s sentence.
Finally, the appellant challenges the trial court’s use of Tenn. Code Ann.
§ 40-35-114(9): “The defendant possessed or employed a firearm, explosive
device or other deadly weapon during the commission of the offense.” During
the appellant’s testimony, he denied using a knife; but the victim testified that the
appellant used a knife during the commission of the crime.
Upon listening to the testimony at trial, viewing the witness’ demeanor,
and considering the witness’ testimony in light of all the facts in the case, the jury
chose to believe the victim. We, therefore, conclude that the trial court properly
applied Tenn. Code Ann. § 40-35-114(9) to enhance the appellant’s sentence.
Thus, after considering the range of punishment of fifteen to twenty-five
years for each offense, we conclude that the enhancement factors applied in this
case warrant the trial court’s assessment of twenty-one years.
Third, the appellant challenges the trial court’s imposition of consecutive
sentences. He argues that his aggregate maximum sentence is not reasonably
related to the severity of the offenses. The state maintains that the appellant’s
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sentence is reasonably related to the severity of the offenses and that
consecutive sentencing is warranted to protect the public.
When an appellant challenges the length, range, or manner of service of a
sentence, this Court conducts a de novo review with a presumption that the
determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-
401(d) (1990). However, this presumption is conditioned on an affirmative
indication 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).
The appellant received consecutive sentences pursuant to Tenn. Code
Ann. § 40-35-115(b)(5) (1990) which provides that the court may order
consecutive sentencing if the appellant “is convicted of two (2) or more statutory
offenses involving sexual abuse of a minor with consideration of the aggravating
circumstances arising from the relationship between the defendant and the
victim . . ..” The state argues that because the victim in this case was raped
vaginally and anally in a single episode, which the state argues is two offenses,
consecutive sentencing under Tenn. Code Ann. § 40-35-115(b)(5) is warranted.
Also, the state argues under State v. Wilkerson, 905 S.W.2d 933 (Tenn. 1995),
that the appellant’s aggregate sentence is reasonably related to the severity of
the crimes involved.
Under Tenn. Code Ann. § 40-35-115(b)(5), consecutive sentencing is not
mandatory. As the appellant noted in his brief, this statute codifies the
decisions in two Tennessee Supreme Court cases: State v. Taylor, 739 S.W.2d
227 (Tenn. 1987) and Gray v. State, 538 S.W.2d 391 (Tenn. 1976). The court
in Taylor held “that consecutive sentences should not routinely be imposed in
sexual abuse cases . . . and that the aggregate maximum of consecutive terms
must be reasonably related to the severity of the offenses involved.” Taylor,
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739 S.W.2d at 230. The appellant also notes that in Taylor the trial court
sentenced the defendant in that case to twenty-four years out of a possible forty
years on each count, to be served consecutively, and the appellant in that case
was eligible for parole after service of thirty percent of his sentence. The
appellant in this case received a sentence of twenty-one years out of a possible
twenty-five years for each offense and was ordered to serve his sentences
consecutively. This appellant is not eligible for parole because Tenn. Code Ann.
§ 39-13-523 (Supp. 1993) requires him to serve the entire sentence imposed by
the court.
When the trial court sentences a defendant, the judge must place on the
record findings of fact that support the decision as to punishment. This
procedure applies to enhancing and mitigating factors as well as to concurrent or
consecutive sentences for multiple offenses. Tenn. Code Ann. § 40-35-210(f).
The court shall place on the record why consecutive sentences are imposed in
light of the foregoing cases and statutes. We respectfully submit that as to the
issue of concurrent or consecutive sentencing, the trial court did not record such
findings. This Court cannot properly review this issue with the record before us.
Therefore, we must remand for resentencing as to the consecutive sentencing
issue.
We affirm the appellant’s convictions. As to consecutive or concurrent
sentences, we remand for resentencing with appropriate findings of fact.
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______________________________
PAUL G. SUMMERS, Judge
CONCUR:
______________________________
DAVID G. HAYES, Judge
______________________________
JERRY L. SMITH, Judge
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