05/04/2018 IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs March 28, 2018 STATE OF TENNESSEE v. MAINOR CELIN AVILEZ CANALES Appeal from the Circuit Court for Sevier County No. 19414-II Walter C Kurtz, Senior Judge ___________________________________ No. E2017-01222-CCA-R3-CD ___________________________________ The Defendant, Mainor Celin Avilez Canales, was convicted after a jury trial of aggravated sexual battery and sentenced to serve twelve years in prison. The Defendant appeals, contending that the jury instructions did not adequately specify the mens rea of the offense and that the trial court improperly enhanced the sentence. After a thorough review of the record, we affirm the judgment of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which ROBERT L. HOLLOWAY, JR., and J. ROSS DYER, JJ., joined. William Lee Wheatley, Sevierville, Tennessee, for the appellant, Mainor Avilez Canales. Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel; Jimmy B. Dunn, District Attorney General; and Ronald C. Newcomb, Assistant District Attorney General, for the appellee, State of Tennessee. OPINION FACTUAL AND PROCEDURAL HISTORY The Defendant was charged with aggravated rape after he was seen carrying the semi-conscious and beaten victim across the parking lot of a bar. The victim, who was severely intoxicated at the time she was assaulted, could not recall the particulars of the assault. At trial, the Defendant asserted that he did not have intercourse with her and that her injuries were the result of a fall. The victim and her friend, Ms. Angelica Buckner, met each other for drinks at a bar shortly after 9:00 p.m. on January 31, 2014. The victim testified that the Defendant and his friend approached her and Ms. Buckner at the bar. The Defendant was speaking English, and the victim could generally understand him. She had trouble with “[v]ery few” words that he spoke. The victim testified that the Defendant attempted to dance with her but that she did not want to dance. Instead, the Defendant danced behind her as she was trying to get her friend to dance in the bar area. The victim testified that the Defendant attempted to put his hands on her bare hips under her clothing, and she removed his hands but allowed him to dance with his hands on her hips outside her clothing. The victim stated that she did not hug or kiss the Defendant at any time. The victim drank five and one-half drinks: she had two mixed drinks with Ms. Buckner when she first arrived, drank a shot that the Defendant’s friend bought her, drank two shots which the Defendant had bought for herself and Ms. Buckner, and drank half of Ms. Buckner’s mixed drink. She recalled speaking with the bouncer at the bar, who offered to remove the Defendant, and she testified that she told the bouncer that “he wasn’t bothering us at the time.” The victim went ...
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