Full Opinion (html_with_citations)

        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                  Assigned on Briefs October 21, 2014 at Knoxville

               STATE OF TENNESSEE v. KATIUS J. WILLIAMS

                    Appeal from the Circuit Court for Dyer County
                    No. 09-CR-398    Russell Lee Moore, Jr., Judge


              No. W2013-02542-CCA-R3-CD - Filed December 30, 2014


The Defendant, Katius J. Williams, was indicted on one count each of aggravated burglary,
aggravated rape, and aggravated robbery. See
Tenn. Code Ann. §§ 39-13-402
, -13-502, -14-
403. Following a jury trial, the Defendant was convicted of aggravated burglary, aggravated
rape, and the lesser-included offense of theft of property valued at $500 or less. See
Tenn. Code Ann. §§ 39-14-103
, -105. The trial court sentenced the Defendant as a Range II,
multiple offender to an effective forty-year sentence. On appeal, the Defendant contends (1)
that the evidence was insufficient to sustain his convictions; (2) that the trial court erred by
making “no findings as to why maximum sentences were appropriate”; and (3) that the total
effective sentence was excessive. Following our review, we affirm the judgments of the trial
court.

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

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which J AMES C URWOOD
W ITT, J R., and R OBERT L. H OLLOWAY, J R., JJ., joined.

James E. Lanier, District Public Defender; and Timothy Boxx, Assistant Public Defender,
for the appellant, Katius J. Williams.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Senior Counsel; and
C. Phillip Bivens, District Attorney General, for the appellee, State of Tennessee.

                                          OPINION

                                FACTUAL BACKGROUND
       The victim, A.R.,1 testified that she was a lesbian and that in July 2009, she and her
partner rented a house in Dyersburg, Tennessee. A.R. testified that her partner worked nights
and that after her partner left for work on the night of July 24, 2009, she fell asleep in their
bedroom watching a horror movie. A.R. testified that she woke up to an African-American
man “standing in front of [her] with a bandana over his face . . . and a gun in [her] face.”
The man rolled the victim onto her stomach and tied her hands behind her back. To cover
her eyes, the man “wrapped something around [her] head and tied it.” Then the man “tried
to wrap something around [her] mouth but it wouldn’t stay so he took it off and just stuck it
in [her] mouth.”

       A.R. testified that the man “started asking [her] where the money was.” A.R. told the
man that all she had was twenty-three dollars on the coffee table in the living room. The
man walked out of the bedroom, came back, and told her that he could not find the money.
A.R. testified that she then “had to tell him exactly where it was.” The man left the room and
came back a short time later. A.R. testified that when the man came back that time, he
“rolled [her] over on [her] back and started taking [her] shorts off.” The man “tried to rip
[her] panties off but he couldn’t get them to rip off so he just took them off.” A.R. testified
while the man did this, her hands were still bound and her face was still covered.

        A.R. testified that once the man removed her panties, he penetrated her vagina with
his penis. The man “turned [her] sideways across the bed and [] put a pillow over [her] head”
while he raped her. The man told her to “f--k back” and told her to “shut up” when she
started to cry. When he finished, the man “went and got a wet wash cloth, [] and washed
[her] off.” The man put her shorts back on and “then [she] heard a vacuum cleaner running.”
The man sat her “up on the edge of the bed” and told her that “if [she] could get [her] hands
loose that [she] could go.” He also told her not to tell anyone that he raped her, to “just tell
them you got robbed,” or he would “come back and kill” her.

        A.R. testified that she was able to get one of her hands free “just a minute” after the
man left. A.R. gathered her cell phone and her cigarettes and “ran to the front door.” She
found that the front door was locked. A.R. unlocked the front door and went to her
neighbor’s house “and started banging on [her] door.” A.R.’s neighbor, Laura Henson,
testified that she awoke on July 25, 2009, to A.R. “banging on [her] bedroom door” around
3:00 a.m. Ms. Henson testified that the victim had “her sleeping clothes on” and an electrical
cord “on her arms.” Ms. Henson testified that A.R. was “hysterical and upset.” According
to Ms. Henson, A.R. was crying and asking for her partner. A.R. told Ms. Henson “that her
house had been broken into and that she had been raped.”



1
    It is the policy of this court to refer to victims of rape by their initials.

                                                           -2-
       Ms. Henson testified that she told A.R. “that she needed to call 911.” A.R. called 911
from Ms. Henson’s house and stayed there until the police arrived. A.R. did not tell the 911
operator that she had been raped, but she testified that she told the first officer to arrive that
she “probably needed to go to the emergency room” because she had been raped.
Investigator Monty Essary of the Dyersburg Police Department (DPD) testified that when he
spoke to A.R. on July 25, 2009, she was “very upset,” “[e]mbarrased,” “[a]shamed,” and “not
comfortable” talking about what had happened, but A.R. did tell him that she had been raped.
Inv. Essary and A.R. did “a walk through” of her house before she was taken to the
emergency room. A.R. testified that when she walked through the house with Inv. Essary,
twenty-three dollars was missing from the living room.

        Inv. Essary testified that the back door of the house showed signs of “forced entry.”
The door frame and door “had cracks and busts in” them. A.R. testified that she and her
partner did not use the back door and had locked it and covered it with a black felt sheet.
Inv. Essary noted that the felt sheet had been nailed around the top and sides of the door, but
that it was torn “away.” In the bedroom, Inv. Essary found a wet wash cloth, a vacuum
cleaner, and “a black t-shirt with a knot tied in it,” which he believed had “been tied around”
A.R.’s face. In the dining room, Inv. Essary found a “clock radio . . . with the power cord
cut off.” Police recovered the electrical cord wrapped around A.R.’s wrists when they
arrived at Ms Henson’s house, and Inv. Essary noted that A.R. had red marks on her wrists.
A used condom and some toilet paper were found in the commode in A.R.’s bathroom. Inv.
Essary testified that no blood or usable fingerprints were found in A.R.’s house.

        Commander Billy Williams of the DPD testified that he was in charge of the DPD’s
Criminal Investigation Division and that he was also the Defendant’s uncle. Cdr. Williams
testified that he interviewed the Defendant about the offenses. Cdr. Williams told the
Defendant he was suspected of raping a white woman and told him “where that incident took
place.” The Defendant did not say anything about having a relationship or consensual sex
with A.R. during the interview. The Defendant volunteered to give a DNA sample and said
that “he knew he didn’t rape anyone.” The Defendant told Cdr. Williams that “he was
incarcerated” at the time of the offenses, but Cdr. Williams testified that “the investigation
revealed that he was not . . . incarcerated when [the] offense[s] occurred.”

       Cdr. Williams testified that the Defendant’s hand was bandaged when he interviewed
him some six weeks after the offense. Cdr. Williams further testified that the Defendant had
previously told him that a dog had bitten his hand. Subsequent forensic testing by the
Tennessee Bureau of Investigation revealed that the Defendant’s sperm was on the inside and
outside of the condom found in A.R.’s toilet. When confronted with this DNA evidence, the
Defendant told Inv. Essary that he wanted “another test run.”



                                               -3-
        The Defendant denied raping A.R. and testified that he was introduced to her by a
mutual friend, Larry Phelps, who “stayed two houses down from her.” The Defendant
claimed that A.R. “wanted to buy some pills” from him. According to the Defendant, over
time, he had developed “a physical relationship” with A.R., and they would have “casual
sex” “every now and then.” The Defendant claimed that he would meet A.R. “[e]ither early
in the day or late at night,” usually “when she wanted to buy . . . pills from [him],” in order
to avoid A.R.’s partner. The Defendant testified that he took A.R. out to lunch one time and
“to [his] sister’s house when [he] was staying with [his] sister.”

        The Defendant claimed that on July 25, 2009, A.R. called him wanting him to bring
some cigarettes to her house. The Defendant testified that they had consensual sex and that
when he finished he put the used condom in a trash can in the bedroom. According to the
Defendant, A.R. was pregnant with his child at that time. The Defendant claimed that he was
trying to convince A.R. to not have an abortion and that they “ended up getting in a heated
conversation” and “got physical.” The Defendant testified that he shoved A.R. and that “she
stabbed [him] with a knife” on his left hand. The Defendant claimed that he was bleeding
from his hand and “ran out of the house.” The Defendant theorized that A.R. moved the
condom to the toilet and claimed to have been raped because she was afraid her partner
would find out about their sexual relationship.

        The Defendant testified that he did not call the police when A.R. stabbed him because
he “was on house arrest” and was not “supposed to [have] been out.” The Defendant also
testified that he lied to Cdr. Williams about being bitten by a dog to avoid “getting in trouble
because [he] really wasn’t supposed to [have] been out on that night.” The Defendant further
testified that he was afraid his probation would be revoked or that he would get a domestic
assault charge. The Defendant testified that he volunteered to give a DNA sample because
he had “nothing to hide” and knew that he “didn’t rape nobody.” The Defendant claimed that
he did not tell the police about his relationship with A.R. because it “[n]ever crossed [his]
mind” that she might have accused him of rape.

       Inv. Essary testified that he was unable to find any evidence that a man named Larry
Phelps ever lived “two houses down from” A.R. Inv. Essary further testified that he was
unable to find anyone who could confirm that the Defendant and A.R. had a relationship of
any kind. A.R. testified that she had never met the Defendant, never bought pills from him,
and never had a sexual relationship with him. A.R. denied the Defendant’s claims that they
had consensual sex on July 25, 2009, that she had a fight with the Defendant and stabbed
him, and that she moved the condom from a trash can in the bedroom to the toilet. Ms.
Henson testified that she never saw the Defendant with A.R. or at A.R.’s house.




                                              -4-
       Based upon the foregoing, the jury convicted the Defendant of aggravated burglary,
aggravated rape, and the lesser-included offense of theft of property valued at $500 or less.
The trial court subsequently held a sentencing hearing at which it was established that the
Defendant had prior felony convictions for aggravated assault, aggravated burglary,
possession of marijuana with intent to sell, and sale of .5 grams or more of cocaine. The
Defendant also had a misdemeanor conviction for attempted escape. The Defendant’s first
felony conviction occurred when he was sixteen-years-old. The Defendant was on
community corrections for his two drug convictions when he committed the offenses in this
case.

        The trial court determined that the Defendant was a Range II, multiple offender. The
trial court then determined that the following enhancement factors applied: (1) the
Defendant had a previous history of criminal convictions in addition to those necessary to
establish the appropriate range; (7) the offenses were committed to gratify the Defendant’s
desire for pleasure or excitement; (8) the Defendant had previously failed to comply with the
conditions of a sentence involving release into the community; (11) the offenses involved the
threat of death or serious bodily injury, and the Defendant had previously been convicted of
a felony that resulted in serious bodily injury; and (13) the Defendant was on community
corrections at the time of the offenses. See
Tenn. Code Ann. § 40-35-114
(1), (7), (8), (11),
(13).

        The trial court stated that it had reviewed the record and had considered “the general
principles of sentencing.” The trial court stated that the Defendant had been convicted of
“two very serious charges” and that his sentence should reflect the seriousness of the
offenses. The trial court found that confinement was necessary to protect society from the
Defendant, noting that he had “a long history of criminal conduct all [of his] young life.”
The trial court stated that confinement was necessary to avoid depreciating the seriousness
of the offense. The trial court also noted that measures less restrictive than incarceration had
recently and frequently been applied to the Defendant and had “not been successful.” The
trial court concluded that there was “no potential for rehabilitation” with the Defendant.

        The trial court sentenced the Defendant to the maximum of ten years for the
aggravated burglary conviction; the maximum of forty years, to be served at one hundred
percent, for the aggravated rape conviction; and to eleven months and twenty-nine days for
the theft conviction. The trial court ordered that the Defendant’s sentences be served
concurrently, for an effective sentence of forty years. However, the trial court ordered the
Defendant’s sentences in this case to be served consecutively to the remainder of his sentence
for his prior conviction of sale of .5 grams or more of cocaine.

                                         ANALYSIS

                                              -5-
                               I. Sufficiency of the Evidence

       The Defendant contends that the evidence was insufficient to sustain his convictions.
The Defendant argues that he “was never found with a weapon or any property of the victim”
and that A.R. did not “suffer any injuries consistent with the attack she described.” The
Defendant further argues that A.R.’s “uncorroborated testimony is the only evidence that the
encounter between the parties was not consensual.” The State responds that the evidence
was sufficient to sustain the Defendant’s convictions.

                                   A. Standard of Review

        An appellate court’s standard of review when the defendant questions the sufficiency
of the evidence on appeal is “whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” Jackson v. Virginia,
443 U.S. 307, 319
 (1979). This
court does not reweigh the evidence; rather, it presumes that the jury has resolved all
conflicts in the testimony and drawn all reasonable inferences from the evidence in favor of
the state. See State v. Sheffield,
676 S.W.2d 542, 547
 (Tenn. 1984); State v. Cabbage,
571 S.W.2d 832, 835
 (Tenn. 1978). Questions regarding witness credibility, conflicts in
testimony, and the weight and value to be given to evidence were resolved by the jury. See
State v. Bland,
958 S.W.2d 651, 659
 (Tenn. 1997).

       A guilty verdict “removes the presumption of innocence and replaces it with a
presumption of guilt, and [on appeal] the defendant has the burden of illustrating why the
evidence is insufficient to support the jury’s verdict.” Bland,
958 S.W.2d at 659
; State v.
Tuggle,
639 S.W.2d 913, 914
 (Tenn. 1982). A guilty verdict “may not be based solely upon
conjecture, guess, speculation, or a mere possibility.” State v. Cooper,
736 S.W.2d 125, 129
(Tenn. Crim. App. 1987). However, “[t]here is no requirement that the State’s proof be
uncontroverted or perfect.” State v. Williams,
657 S.W.2d 405, 410
 (Tenn. 1983). Put
another way, the State is not burdened with “an affirmative duty to rule out every hypothesis
except that of guilt beyond a reasonable doubt.” Jackson,
443 U.S. at 326
.

       The following standard “applies to findings of guilt based upon direct evidence,
circumstantial evidence, or a combination of [both] direct and circumstantial evidence.”
State v. Pendergrass,
13 S.W.3d 389, 392-93
 (Tenn. Crim. App. 1999). Our supreme court
has held that circumstantial evidence is as probative as direct evidence. State v. Dorantes,
331 S.W.3d 370, 379-81
 (Tenn. 2011). In doing so, the supreme court rejected the previous
standard which “required the State to prove facts and circumstances so strong and cogent as
to exclude every other reasonable hypothesis save the guilt of the defendant, and that beyond



                                             -6-
a reasonable doubt.”
Id.
 at 380 (quoting State v. Crawford,
470 S.W.2d 610, 612
 (Tenn.
1971)) (quotation marks omitted).

        Instead, “direct and circumstantial evidence should be treated the same when
weighing the sufficiency of such evidence.” Dorantes,
331 S.W.3d at 381
. The reason for
this is because with both direct and circumstantial evidence, “a jury is asked to weigh the
chances that the evidence correctly points to guilt against the possibility of inaccuracy or
ambiguous inference.”
Id.
 at 380 (quoting Holland v. United States,
348 U.S. 121, 140
(1954)). To that end, the duty of this court “on appeal of a conviction is not to contemplate
all plausible inferences in the [d]efendant’s favor, but to draw all reasonable inferences from
the evidence in favor of the State.” State v. Sisk,
343 S.W.3d 60, 67
 (Tenn. 2011).

                                  B. Aggravated Burglary

        Aggravated burglary is the entry of a habitation “without the effective consent of the
property owner” with the intent “to commit a felony, theft or assault.”
Tenn. Code Ann. § 39-14-402
, -403. Here, A.R. testified that she did not know the Defendant and was asleep
when he entered her home. Inv. Essary testified that the back door of A.R.’s house showed
signs of “forced entry” in that there were “cracks and busts in” the door and door frame and
the black felt sheet hung over the door was torn “away.” Inv. Essary also found a “clock
radio . . . with the power cord cut off” in A.R.’s dining room. A.R. testified that she awoke
to the Defendant’s pointing a gun at her face, that he bound her, and that he demanded
money. When the police arrived, A.R. had an electrical cord dangling from her wrist, and
there were red marks on her wrists. Accordingly, we conclude that the evidence was
sufficient for the jury to conclude that the Defendant entered A.R.’s house without her
effective consent and with the intent to commit a felony, theft, or assault.

                                    C. Aggravated Rape

       As relevant here, aggravated rape is defined as the “unlawful sexual penetration of a
victim by the defendant . . . accompanied by” the use of force or coercion “to accomplish the
act and the defendant is armed with a weapon . . . .”
Tenn. Code Ann. § 39-13-502
(a)(1).
Sexual penetration “means sexual intercourse, cunnilingus, fellatio, 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, but
emission of semen is not required.”
Tenn. Code Ann. § 39-13-501
(7).

       A.R. testified that the Defendant, armed with a gun, bound, blindfolded, and attempted
to gag her. The Defendant removed her pants and underwear and penetrated her vagina with
his penis. When she cried, the Defendant told A.R. to “shut up” and demanded that she “f--k

                                              -7-
back.” When he finished, the Defendant wiped A.R. with a wet wash cloth and ran the
vacuum cleaner in the bedroom. Once freed, A.R. went to Ms. Henson’s house with the
electrical cord still wrapped around her wrists and red marks on her wrists. Inv. Essary found
a vacuum cleaner, a wet wash cloth, and “a black t-shirt with a knot tied in it” in A.R.’s
bedroom. A used condom was found in the toilet of A.R.’s bathroom. Subsequent forensic
testing revealed the Defendant’s semen on the inside and outside of the condom. A.R. denied
knowing the Defendant or having any sort of relationship with him.

       Essentially, the Defendant’s argument is that the jury should have believed his
testimony over the “uncorroborated testimony” of A.R. However, determinations regarding
the credibility of witnesses are the province of the jury and not this court. Here, the jury
chose to accredit A.R.’s testimony over the Defendant’s, and we cannot revisit that decision
on appeal. Furthermore, “Tennessee courts have long held that both minor and adult victims
of forcible or coercive sex offenses, such as simple rape, do not qualify as accomplices and
are not subject to any corroboration requirement.” State v. Collier,
411 S.W.3d 886
, 896 n.8
(Tenn. 2013). Accordingly, we conclude that the evidence was sufficient to sustain the
Defendant’s conviction for aggravated rape.

                                           D. Theft

       Theft occurs when a “person knowingly obtains or exercises control over [another’s]
property without the owner’s effective consent” and “with intent to deprive the owner of
[the] property.”
Tenn. Code Ann. § 39-14-103
(a). Here, A.R. testified that the Defendant
pointed a gun at her face and demanded money. A.R. told the Defendant that she had twenty-
three dollars on the coffee table in her living room. When the Defendant was unable to find
the money, he came back to A.R.’s bedroom, and she “had to tell him exactly where it was.”
A.R. testified that when she came back to her house with Inv. Essary, the twenty-three dollars
was gone. As such, we conclude that the evidence was sufficient to sustain the Defendant’s
conviction for theft of property valued at $500 or less.

                                        II. Sentencing

       The Defendant contends that the trial court erred in sentencing him. The Defendant
argues that the trial court failed to make “findings as to why maximum sentences were
appropriate.” The Defendant also argues that his total effective sentence was excessive. The
State responds that the Defendant has not overcome the presumption of reasonableness
granted to the trial court’s within-range sentencing decisions and has not shown that the trial
court abused its discretion.




                                              -8-
       Appellate courts are to review “sentences imposed by the trial court within the
appropriate statutory range . . . under an abuse of discretion standard with a presumption of
reasonableness.” State v. Bise,
380 S.W.3d 682, 709
 (Tenn. 2012) (internal quotation marks
omitted). A sentence will be upheld “so long as the statutory purposes and principles [of the
Sentencing Reform Act] . . . have been properly addressed.”
Id. at 706
. If this is true, this
court may not disturb the sentence even if a different result were preferred. State v. Carter,
254 S.W.3d 335
 (Tenn. 2008). Even if the trial court has misapplied an enhancement or
mitigating factor, the sentence will be upheld if “there are other reasons consistent with the
purposes and principles of sentencing, as provided by statute . . . .” Bise,
380 S.W.3d at 706
.
On appeal, the burden is on the defendant to show that the sentence is improper.
Tenn. Code Ann. § 40-35-401
(d), Sentencing Comm’n Cmts.

        The Sentencing Reform Act was enacted in order “to promote justice” by ensuring
that every defendant “be punished by the imposition of a sentence justly deserved in relation
to the seriousness of the offense.”
Tenn. Code Ann. § 40-35-102
. In order to implement the
purposes of the Sentencing Reform Act, trial courts must consider several sentencing
principles. The sentence imposed for an offense “should be no greater than that deserved for
the offense committed” and “should be the least severe measure necessary to achieve the
purposes for which the sentence is imposed.”
Tenn. Code Ann. § 40-35-103
(2), (4).
Sentences involving incarceration “should be based on the following considerations”:

       (A) Confinement is necessary to protect society by restraining a defendant who
       has a long history of criminal conduct;

       (B) Confinement is necessary to avoid depreciating the seriousness of the
       offense or confinement is particularly suited to provide an effective deterrence
       to others likely to commit similar offenses; or

       (C) Measures less restrictive than confinement have frequently or recently
       been applied unsuccessfully to the defendant.
Tenn. Code Ann. §40-35-103
(2). Trial courts should consider the “potential or lack of
potential for the rehabilitation or treatment of the defendant” when “determining the sentence
alternative or length of a term to be imposed.”
Tenn. Code Ann. §40-35-103
(5).

        The Defendant does not allege that the trial court misapplied any of the enhancement
factors. Instead, the Defendant alleges that the trial court failed to make “findings as to why
maximum sentences were appropriate.” However, the recorded belies this assertion. The
trial court found that five enhancement factors applied to the Defendant’s sentences. The
trial court then addressed all of the factors listed in Tennessee Code Annotated section 40-35-

                                              -9-
103(2), noting that the Defendant had a long history of criminal conduct, that confinement
was necessary to avoid depreciating the seriousness of the offense, and that measures less
restrictive than confinement had been frequently and recently applied unsuccessfully to the
Defendant. The trial court also stated that it believed the Defendant had “no potential for
rehabilitation.” Only after reviewing the enhancement factors and the purposes and
principles of sentencing did the trial court impose the maximum sentence for each
conviction. As such, we conclude that this issue is devoid of merit.

        With regard to whether the Defendant’s effective forty-year sentence was excessive
in light of the offenses he committed, we note that the Defendant broke into A.R.’s home at
night while she was alone and asleep. He pointed a gun in her face, bound her, blindfolded
her, and attempted to gag her. He then demanded money and, after taking what little money
she had, raped her. The Defendant became incensed when A.R. began to cry and refused to
“f--k back.” After raping her, the Defendant attempted to conceal his crime by wiping A.R.
with a wet wash cloth, running the vacuum cleaner, and throwing the used condom in the
toilet. The Defendant then told A.R. that if she told anyone he had raped her he would come
back and kill her and left her on the bed, still bound and blindfolded. As such, the
Defendant’s argument that his effective forty-year sentence is excessive and disproportional
to the offenses he committed holds no weight in this court. Accordingly, we affirm the
sentencing decision of the trial court.

                                     CONCLUSION

        Upon consideration of the foregoing and the record as a whole, the judgments of the
trial court are affirmed.




                                                   _________________________________
                                                   D. KELLY THOMAS, JR., JUDGE




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