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11/30/89 STATE TENNESSEE v. NOLA MAE CARMLEY AND

November 30, 1989

STATE OF TENNESSEE, APPELLEE,
v.
NOLA MAE CARMLEY AND HUGH RONALD CARMLEY, APPELLANT



From MONROE COUNTY, Honorable R. Steven Bebb, Judge. Aggravated Rape

Appeal Denied March 5, 1990 and

Lyle Reid, Judge, Jerry Scott, Judge, Joe B. Jones, Judge, Concur

The opinion of the court was delivered by: Reid

LYLE REID, JUDGE

This case presents appeals as of right by the appellants, Nola Mae Carmley and Hugh Ronald Carmley, from convictions of aggravated rape.

The appellant Nola Mae Carmley assigns for review the sufficiency of the evidence, and both appellants assign for review the admission of evidence, jury instructions, the refusal to grant new trials on the basis of newly discovered evidence and the sentences.

The record does not show reversible error.

SUFFICIENCY OF THE EVIDENCE

The 12 year old victim testified that several times each week over a period of several years her father committed acts which she described in detail and which constitute "sexual penetration" as provided in T.C.A. § 39-2-602(11). She testified that about twice each week her mother committed acts which she described in detail and which constitute "sexual contact," as provided in T.C.A. § 39-2-602(10). She further testified that the acts sometimes were committed by the appellants in the presence of each other and sometimes separately. The State introduced several books which graphically depict sexual acts between adults and children. The victim testified that the material, the joint property of the appellants, was shown or read to her prior to or during times when the sexual acts were committed. The appellants removed their and the victim's clothing when the acts were committed. A pediatrician described the condition of the victim's vagina and stated that his finding was consistent with frequent and recent penetration.

Defense witnesses testified that the acts described by the victim did not occur, that there was no physical contact between the victim and the appellants which could be deemed sexual and that the victim's testimony was completely fabricated.

There is evidence that the victim was less than 13 years of age, there was sexual penetration of the victim by the father while the mother was present, aiding and abetting.

On appeal a guilty verdict approved by the trial Judge accredits the testimony of the witnesses for the State; the State is entitled to the strongest legitimate view of the evidence and all reasonable inferences therefrom; the verdict removes the presumption of innocence and raises a presumption of guilt; and the appellants have the burden of showing that the evidence preponderates against the verdict. State v. Cabbage, 571 S.W.2d 832 (Tenn. 1978); State v. Hatchett, 560 S.W.2d 627 (Tenn. 1978); State v. Townsend, 525 S.W.2d 842 (Tenn. 1975); State v. Grace, 493 S.W.2d 474 (Tenn. 1973); and Anglin v. State, 553 S.W.2d 616 (Tenn. Crim. App. 1977).

For purposes of appellate review, the evidence is sufficient to support the jury's findings of guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979); State v. Williams, ...


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