State of Tennessee v. Bradley Cox ( 2015 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
February 3, 2015 Session Heard at Memphis1
STATE OF TENNESSEE v. BRADLEY COX
Appeal from the Circuit Court for Henderson County
No. 130571 Roy B. Morgan, Judge
No. W2014-00800-CCA-R3-CD - Filed June 17, 2015
The Defendant-Appellant, Bradley Cox, was convicted by a Henderson County jury of
one count of aggravated sexual battery and two counts of rape of a child. The trial court
sentenced the Defendant to an effective sentence of 37 years‟ confinement, to be served
at 100% as a violent offender. On appeal, the Defendant argues that (1) he is entitled to a
new trial based upon the State‟s failure to timely disclose certain exculpatory evidence,
and (2) the evidence is insufficient to sustain his convictions. Upon review, we affirm
the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and ROGER A. PAGE, JJ., joined.
David W. Camp, Jackson, Tennessee, for the Defendant-Appellant, Bradley Cox.
Robert E. Cooper, Jr., Attorney General and Reporter; Tracy L. Alcock, Assistant
Attorney General; Jerry Woodall, District Attorney General; and Angela R. Scott,
Assistant District Attorney General, for the Appellee, State of Tennessee.
OPINION
On June 11, 2013, the Defendant was indicted by the Henderson County Grand
Jury for three counts of rape of a child for three incidents involving his minor
1
Oral Argument was heard in this case on February 3, 2015, at Cecil C. Humphreys School of
Law at the University of Memphis in Memphis, Tennessee, as part of the S.C.A.L.E.S. (Supreme Court
Advancing Legal Education for Students) project.
stepdaughter, J.C.2 A jury trial was held on December 18, 2013, at which the following
evidence was presented.
State’s Proof. The victim testified that she was born on April 20, 2001, and was
five years old when her adopted mother, T.C., married the Defendant in July 2006. At
the time of the incidents, the victim was living with T.C., the Defendant, and her three
siblings.
The victim testified that the first incident occurred in September or October 2008.
She recalled that it was “crisp” outside, the leaves had started changing colors, and she
had drawn a leaf at school. One afternoon after the victim arrived home from school, the
Defendant called her to his bedroom where he was lying on the bed. He asked her about
her day, hugged and kissed her, and pulled her onto the bed. The victim lay on her side
while the Defendant lay next to her. He then pulled down her pants and her panties and
touched the outside and the inside of her vagina, which she referred to as her “private
area,” with his finger. While touching her, the Defendant told her that he loved her. The
victim testified that it hurt when the Defendant touched inside and outside of her vagina
and that she kept her eyes closed during the incident. She estimated that the incident
lasted 45 minutes and recalled that after it ended, she went to the bathroom to check her
underwear because she thought she had “messed [her]self.” She did not tell anyone about
the incident at the time.
The second incident occurred in October 2009. The victim recalled that it was
after her birthday, and it was cold outside. The victim was playing on the computer at
her house after school one afternoon when the Defendant called her to his bedroom. He
was lying on the bed under the covers. He asked her about her day and hugged and
kissed her. He then pulled her onto the bed and under the covers. The victim testified
that the Defendant was “already naked,” and he pulled off her pants and her panties and
“put his penis into [her] vagina.” The Defendant kissed the victim and told her that he
loved her. The victim testified that it “just sort of felt weird and it kind of hurt” when the
Defendant put his penis in her vagina. She estimated that the incident lasted 45 minutes.
Afterwards, she went to the bathroom and discovered “clear stuff” on her underwear.
She did not tell anyone about the incident.
The third incident occurred on December 27, 2012. The victim testified that it was
a couple of days after Christmas, and her grandmother was sick. The victim recalled that
her mother, great-grandmother, brothers, and the Defendant were at home with her that
evening. Around 11 p.m., after everyone else had gone to bed, the victim was playing
2
It is the policy of this court to protect the victims of sex crimes by identifying them and their
relatives by their initials only.
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with her iPod while the Defendant sat in the loveseat in the living room watching
television. The Defendant called the victim to the loveseat to watch television with him.
While they were lying together in the loveseat, the Defendant started kissing the victim,
pulled down her pants and panties, and pulled down his pants and underwear. He put his
finger in her vagina and her buttocks, which “hurt” the victim, and then put his penis into
her vagina. The Defendant kissed the victim and told her that he loved her. After the
incident, the victim was tired so the Defendant carried her to her bed.
After the victim returned to school, she told two friends about the incidents with
the Defendant. A few months later, she disclosed the abuse to her school counselor, Mr.
Warren. When she arrived home from school that day, she observed a black vehicle in
her driveway and a woman waiting to speak to her. The victim testified that she “knew
who it was” because Mr. Warren informed her that he was “going to call people” and she
“already knew all about Child Services[.]” The victim told the woman what happened
with the Defendant. Thereafter, the Defendant called the victim and asked whether
anyone had visited the house. The victim responded, “Yes, the Child Services lady.”
The Defendant asked the victim what she told Child Services, and she responded, “I told
[Child Services] that . . . [y]ou had touched me inappropriately.” The Defendant told the
victim that she “had to lie” and she “couldn‟t tell that, and it was going to ruin the family
and that [she] just couldn‟t tell anybody.” The victim responded, “I‟m sorry, I can‟t tell a
lie. You‟ve raised me not to. I can‟t.” The Defendant continued to call the victim
approximately 15 times from the time she arrived home from school until her aunt arrived
at the house, repeatedly asking her why she told Child Services about the incidents and
urging her to lie. He told the victim to tell Child Services that she had “misunderstood”
and that he accidently touched her private area while they were wrestling. When she
responded that she was not going to lie, he said, “Please [J.C.], you have to. Please.”
The victim did not see or speak to the Defendant again until trial.
Subsequently, the victim participated in a forensic interview and received
counseling at the Carl Perkins Center for Child Abuse Prevention. She identified the
Defendant in court and stated that she was “certain” he was the person that touched her.
On cross-examination, the victim agreed that during the last six or eight months of her
parents‟ marriage, T.C. and the Defendant fought a lot, which made her angry. She
acknowledged that she told her grandmother that if her parents separated, she wanted to
live with the Defendant. She explained that T.C. was “so unbearable” and the two “never
really got along[.]” She stated that she was not afraid of the Defendant, and she “thought
[she] could handle it.” She agreed that she did not tell anyone about the abuse for nearly
four years, explaining, “[I]t just never came up in a conversation.”
Investigator David Dowdy with the Henderson County Sheriff‟s Office
investigated the victim‟s case. After watching the victim‟s forensic interview,
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Investigator Dowdy set up an interview with the Defendant. When the Defendant
voluntarily came to the Sheriff‟s Office a few days later for the interview, his initial
statement to Investigator Dowdy was “something to [the] effect” of “[I am] in trouble.”
Investigator Dowdy read the Defendant his Miranda rights and informed him of the
allegations against him. The Defendant signed a form acknowledging and waiving his
rights and agreed to talk with Investigator Dowdy about the allegations. Investigator
Dowdy recalled that the Defendant was nervous and upset and that he cried periodically
throughout the interview. He initially denied the allegations and claimed that the victim
may have been lying due to her parents‟ marital problems. He later told Investigator
Dowdy that the victim is “a truthful girl” and “she doesn‟t tell lies,” and he stated that he
was proud of her for telling the truth. The Defendant admitted to Investigator Dowdy
that he occasionally took Ambien and recalled waking up with his hands down the
victim‟s pants, touching her inappropriately and kissing her. Although he could not
remember specifics, the Defendant said that it happened several different times, including
December 27, 2012. When Investigator Dowdy asked the Defendant whether he
penetrated the victim‟s vagina with his penis, he stated that he did not remember doing
that.
After the Defendant‟s admission, Investigator Dowdy left the interview room to
allow the Defendant to write out a statement. The statement, which was introduced into
evidence and read to the jury, described the incidents with the victim as follows:
After taking my Ambien[,] I would sometimes lie down on the
loveseat or couch. Sometimes [the victim] would watch TV with me. I
remember waking up on a couple different occasions and I was kissing her
on the face and rubbing her inappropriately on her panties. After waking
up I sent her to bed, as well as I did.
When Investigator Dowdy informed the Defendant that the victim would be given a
medical examination, the Defendant said the medical findings would come back to him
and stated that he would kill himself if the examination showed that she was pregnant.
At that point, Investigator Dowdy advised the Defendant that he was under arrest.
Dr. Lisa Piercey, Vice President of West Tennessee Healthcare and medical
director of the Madison County Child Advocacy Center, testified as an expert in child
abuse. She evaluated the victim in this case and conducted a physical examination on
January 7, 2013. Dr. Piercey testified that the victim had a “normal physical examination
except for her genitals.” The victim had an absence of the posterior rim of hymen tissue,
which Dr. Piercey opined indicated penetration. She explained that this injury was a
“pretty significant finding” and “pretty abnormal” because it occurs in less than fifteen
percent of all sex abuse cases. Based on her findings, Dr. Piercey opined that the victim
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suffered sexual abuse with “definitive evidence of blunt force penetrating trauma”
consistent with the victim‟s disclosure of abuse. Dr. Piercey acknowledged that the
victim did not show any symptoms of a sexually transmitted disease although the
Defendant is a carrier of genital herpes and genital warts. She explained, however, that it
is unlikely that a sexually transmitted disease spreads every time a person with the
disease has sex. She further noted that genital warts is a lifelong disease and that a carrier
may not show symptoms for 20 to 30 years.
On cross-examination, Dr. Piercey reiterated that “hymenal injury is actually
extraordinarily rare outside of penetrating trauma” and stated that when there is an
“interruption of that lower edge of the hymenal rim, it‟s pretty much always indicative of
penetrating trauma.” Dr. Piercey agreed that she did not collect any DNA evidence from
the victim but explained that the incidents occurred well beyond the 72-hour time frame
in which DNA evidence may have been available.
Defense’s Proof. The Defendant testified that at the time of the alleged incidents,
he was married to T.C., the victim‟s adoptive mother. In the last few years of the
marriage, their relationship had become “pretty rocky,” and the two divorced in the
summer of 2013. The Defendant testified about T.C.‟s prescription drug use and recalled
that it would “get almost to the point where [T.C.] couldn‟t even speak.” He
acknowledged that the couple occasionally argued in front of the children and that the
children asked whether the Defendant and T.C. were going to get a divorce. The
Defendant testified that when he met with Investigator Dowdy, his “whole intention was
just to keep [the victim] out of trouble and stuff.” He adamantly denied ever having sex
with the victim “in any way.” When asked why he admitted to Investigator Dowdy that
he inappropriately touched the victim, the Defendant stated, “[Y]ou would do just about
anything to protect [your children],” and explained that he was trying to “take the heat”
off of the victim.
On cross-examination, the Defendant agreed that he signed a waiver of his
Miranda rights before talking with Investigator Dowdy and that he wrote out a statement
admitting to inappropriately touching the victim. He claimed, however, that the
statement was not true and that he lied to Investigator Dowdy to “protect [his] daughter.”
The Defendant testified that T.C. sent him text messages over the weekend before he met
with Investigator Dowdy “coach[ing]” him and telling him, “This is what‟s happening,
this is what you need to do. You need to say something to keep [the victim] out of
trouble.” The State asked whether the Defendant remembered a certain text message sent
to his old phone number. The Defendant recalled the text, but he did not recall his
response to this text message. The prosecutor read the Defendant‟s reply, “You are a
wonderful person and none of this is your fault,” and the Defendant agreed that he
“probably said that.” When asked whether this text message was his idea of T.C.
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coaching him, the Defendant responded, “[I]t seem[s] like you picked and chose what
you want[ed] to show me. . . . That can‟t be the only thing I replied to her.” When asked
what messages the State was “supposedly picking and choosing,” the Defendant
responded, “I can‟t remember back twelve months ago. . . . I don‟t have that [phone]
number anymore.”
The Defendant‟s mother and victim‟s grandmother, testified that she spent a lot of
time with the victim. During the Thanksgiving holiday in 2012, the victim and her
siblings spent four days and nights with her. She testified that the victim never told her
about any incidents of mistreatment or abuse by the Defendant and stated, “[The victim]
loved her dad.” She testified that the victim told her that T.C. and the Defendant were
fighting a lot and that if they separated, the victim wanted to live with the Defendant.
Four character witnesses, Rebecca Rose, Amy Howard, Jerry Maynard Franks,
and Jeremy Simpson, each testified that he or she had known the Defendant for his entire
life and that he was entitled to be believed under oath.
Following deliberation, the jury convicted the Defendant of one count of
aggravated sexual battery as a lesser-included offense of rape of a child and two counts of
rape of a child. The trial court sentenced the Defendant to 10 years‟ confinement for the
aggravated sexual battery conviction in count one and 27 years‟ confinement for each
rape of a child conviction in counts two and three, with all sentences to be served at
100% as a violent offender. The court ordered the Defendant to serve counts two and
three concurrently with each other but consecutively to count one, for an effective
sentence of 37 years‟ confinement.
On March 12, 2014, the Defendant timely filed a motion for judgment of acquittal
or new trial. A hearing was held on March 25, 2014, after which the trial court denied
the motion. The court entered an order setting out the same on April 28, 2014. The
Defendant filed a timely notice of appeal to this court on April 21, 2014.
ANALYSIS
On appeal, the Defendant raises two issues for our review: (1) whether he is
entitled to a new trial based upon the State‟s failure to timely disclose certain exculpatory
evidence, and (2) whether the evidence is sufficient to sustain his convictions. Upon our
review, we affirm the judgments of the trial court.
I. Late Disclosure of Evidence. The Defendant first argues that he is entitled to a
new trial based upon the State‟s failure to timely disclose text messages exchanged
between the Defendant and T.C. He asserts that this evidence was potentially
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exculpatory as some of the messages could have supported his position that T.C. coached
him into falsely admitting his guilt and that the State‟s failure to timely disclose these
messages prevented him from effectively using them at trial. The Defendant further
argues that the State‟s failure to timely disclose the text messages violated Rule 16 of the
Tennessee Rules of Criminal Procedure. The State responds that the Defendant failed to
show a violation of Brady v. Maryland, 373 U.S. 83 (1963) or Tennessee Rule of
Criminal Procedure 16, and thus, he is not entitled to relief. We agree with the State.
In regard to the late disclosure issue, during cross-examination of the Defendant,
the Defendant testified that his wife, T.C., coached him through text messages into
falsely admitting his guilt to protect the victim. In response to this testimony, the State
confirmed that the Defendant had participated in text messages with his wife the weekend
before he was investigated. The State then asked whether the Defendant recalled the
following text message from his wife:
Was I that bad of a wife that you did this? [The victim] has been scarred
for life. There were things – you were her father. She looked up to you.
Do you realize what you have done to our family? . . . There is no way [the
victim] made these up.
Defense counsel then objected on the grounds that the text message was not
included in the discovery materials. The State responded that the text message had been
added to its discovery file at least a week before trial and under its open file policy,
defense counsel could have obtained copies at any time. The State also offered to
provide copies to defense counsel at that time. After a brief bench conference, the trial
court allowed the State to continue questioning the Defendant about the text message.
The Defendant did not recall his response to this text message and was unable to
articulate the substance of any other text messages to support his theory that T.C. coached
him.
To resolve this issue, our review of the record reveals only one text message,
outlined above, which was read by the prosecution and agreed to by the Defendant during
cross-examination. To the extent that the Defendant argues that the State violated Brady
in failing to timely disclose this text, we disagree. As an initial matter, we fail to see how
the above text is exculpatory. It does not aid the Defendant‟s case, challenge the
credibility of a key witness, or call into question a key element of the prosecution‟s case.
See Johnson v. State, 38 S.W.3d 52, 55-56 (Tenn. 2001). Even if considered exculpatory,
the Defendant agreed to participating in the text exchanges with his wife on his phone the
weekend before the investigation. Clearly, the Defendant was aware of the information
contained in the text before trial because (1) he discussed it at length during trial; and (2)
it was transmitted to his phone. The State has no duty to disclose “information that the
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accused already possesses or is able to obtain, or information which is not possessed by
or under the control of the prosecution . . .” State v. Colvett, No. M2013-02488-CCA-
R3-CD, 2014 WL 7223775, at *22 (citing State v. Marshall, 845 S.W.2d 228, 233 (Tenn.
Crim. App. 1992)); Berry v. State, 366 S.W.3d 160, 179-80 (Tenn. Crim. App. 2011)
(“There is no Brady violation where a defendant knew or should have known the
essential facts permitting him to take advantage of any exculpatory information, or where
the evidence is available . . . from another source, because in such cases there is really
nothing for the government to disclose.” (quoting Owens v. Guida, 549 F.3d 399, 415)
(6th Cir. 2008)). Moreover, “when exculpatory evidence is equally available to the
prosecution and the accused, the accused „must bear the responsibility of [his] failure to
seek its discovery.‟” Marshall, 845 S.W.2d at 233 (citing and quoting United States v.
McKenzie, 768 F.2d 602, 608 (5th Cir. 1985), cert. denied 474 U.S. 1086 (1986)).
Because the Defendant failed to do so in this case, he is not entitled to relief.
We must acknowledge that the Defendant‟s case theory was that the victim‟s
mother “coached” him into admitting his guilt, presumably via text message. In his brief
to this court and during oral argument, the Defendant alluded to other text messages in
the State‟s possession that were potentially exculpatory. He argued that the single text
message listed above “undermine[d his] defense that [he] was lying to protect his
daughter and that the wife had coached him on doing this.” He further claimed that
because he no longer had the cell phone that was used to transmit the texts and could not
remember all the text communications, the State possessed information which “may have
been of assistance” to his defense. It is indeed possible that more text messages were in
the State‟s possession.3 However, review of this issue is impossible because the
Defendant did not include the text messages in the record on appeal. Without the text
messages or a meaningful proffer, we are unable to determine the content of the text
messages or whether they were favorable and material to the Defendant. Accordingly,
the Defendant is not entitled to relief.
The Defendant also argues that notwithstanding any Brady violation, the State
violated Tennessee Rule of Criminal Procedure 16(c) by failing to notify him of the
addition of the text messages to its discovery file. Subsection (c) of Rule 16 imposes a
continuing duty upon the State to “promptly disclose” the existence of additional
evidence or material discovered before or during trial if, “(1) the evidence is subject to
discovery or inspection under this rule, and (2) the other party previously requested, or
the court ordered, its production.”
3
After reading the text message from the Defendant‟s wife into evidence, the State asked the
Defendant whether that was his “idea of her coaching” him? The Defendant asked, “Are those the only
ones,” to which the State responded, “Oh, there‟s a lot more.” In addition, after the bench conference
concerning the text message, the State offered to provide defense counsel with copies of the text
messages. It is unclear from the record whether the State did so.
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Here, the Defendant has simply failed to establish that the State‟s failure to notify
him of the text messages was so prejudicial that exclusion of the evidence was the only
appropriate remedy. The State offered to provide copies of the text messages to defense
counsel prior to continuing its cross-examination of the Defendant, and defense counsel
failed to request a continuance to allow the Defendant to review the undisclosed
evidence. A continuance would likely have been an appropriate remedy had it been
requested, and by failing to seek a continuance, the Defendant risked waiver. See Tenn
R. App. P. 36(a) (“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.”). Exclusion of evidence,
although necessary in some cases, is a “drastic remedy and should not be implemented
unless there is no other reasonable alternative.” State v. Gann, 251 S.W.3d 446, 457
(Tenn. Crim. App. 2007) (quoting State v. Smith, 926 S.W.2d 267, 270 (Tenn. Crim.
App. 1995)). Further, as noted by the trial court, the Defendant was certainly aware of
the existence of the text messages as he testified that T.C. coached him through text
messages into admitting his guilt. Although he claims that he was “unduly prejudice[ed]”
by the State‟s use of the messages, he has failed to establish what he would have done
differently had the messages, otherwise admissible, been disclosed prior to trial. Rule
16(d) provides that a trial court may fashion an appropriate remedy as it “deems just
under the circumstances.” Tenn. R. Crim. P. 16(d)(2). In this case, we are unable to
conclude that the trial court abused its discretion by denying the defendant‟s request that
the questioning concerning the text messages be excluded.
II. Sufficiency of the Evidence. The Defendant next argues that the evidence is
insufficient to sustain his convictions for aggravated sexual battery and rape of a child.
The State responds that based upon the evidence presented, a rational juror could find the
Defendant guilty beyond a reasonable doubt on all three counts. We agree with the State.
When considering the sufficiency of the evidence on appeal, the State is entitled to
the strongest legitimate view of the evidence and all reasonable inferences which may be
drawn from that evidence. State v. Davis, 354 S.W.3d 718, 729 (Tenn. 2011) (citing
State v. Majors, 318 S.W.3d 850, 857 (Tenn. 2010)). When a defendant challenges the
sufficiency of the evidence, the standard of review applied by this court is “whether, after
reviewing 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). Similarly, Rule 13(e) of the Tennessee
Rules of Appellate Procedure states, “Findings of guilt in criminal actions whether by the
trial court or jury shall be set aside if the evidence is insufficient to support the finding by
the trier of fact of guilt beyond a reasonable doubt.” “Because a verdict of guilt removes
the presumption of innocence and raises a presumption of guilt, the criminal defendant
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bears the burden on appeal of showing that the evidence was legally insufficient to
sustain a guilty verdict.” State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009).
Guilt may be found beyond a reasonable doubt where there is direct evidence,
circumstantial evidence, or a combination of the two. State v. Matthews, 805 S.W.2d
776, 779 (Tenn. Crim. App. 1990) (citing State v. Brown, 551 S.W.2d 329, 331 (Tenn.
1977); Farmer v. State, 343 S.W.2d 895, 897 (Tenn. 1961)). The standard of review for
sufficiency of the evidence “„is the same whether the conviction is based upon direct or
circumstantial evidence.‟” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting
State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). The jury as the trier of fact must
evaluate the credibility of the witnesses, determine the weight given to witnesses‟
testimony, and reconcile all conflicts in the evidence. State v. Campbell, 245 S.W.3d
331, 335 (Tenn. 2008) (citing Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App.
1978)). Moreover, the jury determines the weight to be given to circumstantial evidence
and the inferences to be drawn from this evidence, and the extent to which the
circumstances are consistent with guilt and inconsistent with innocence are questions
primarily for the jury. Dorantes, 331 S.W.3d at 379 (citing State v. Rice, 184 S.W.3d
646, 662 (Tenn. 2006)). When considering the sufficiency of the evidence, this court
shall not reweigh the evidence or substitute its inferences for those drawn by the trier of
fact. Id.
As relevant to this case, Tennessee Code Annotated section 39-13-504(a)(4)
defines aggravated sexual battery, a Class B felony, as “unlawful sexual contact with a
victim by the defendant or the defendant by a victim . . . [where] [t]he victim is less than
thirteen (13) years of age.” Sexual contact means “the intentional touching of the
victim‟s, the defendant‟s, or any other person‟s intimate parts, or the intentional touching
of the clothing covering the immediate area of the victim‟s, the defendant‟s, or any other
person‟s intimate parts, if that intentional touching can be reasonably construed as being
for the purpose of sexual arousal or gratification.” T.C.A. § 39-13-501(6). Intimate parts
“includes semen, vaginal fluid, the primary genital area, groin, inner thigh, buttock or
breast of a human being.” Id. § 39-13-501(2). Tennessee Code Annotated section 39-13-
522(a) defines rape of a child, a Class A felony, as “the unlawful sexual penetration of
the victim by the defendant or the defendant by a victim, if the victim is more than three
(3) years of age but less than thirteen (13) years of age.” 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 in 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.” Id. § 39-13-501(7).
Viewed in the light most favorable to the State, the evidence in the case sub judice
established that on three separate occasions, the Defendant sexually abused the victim.
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At the time of all of the offenses, the victim was less than thirteen years of age. In the
first instance, the Defendant called the victim to his bedroom and, after hugging and
kissing her, pulled her onto the bed beside him. As the two lay side-to-side, the
Defendant removed the victim‟s pants and panties and touched the outside and inside of
her vagina with his finger. In the second incident, the Defendant again called the victim
to his bedroom and pulled her onto the bed where he was lying naked under the covers.
He removed the victim‟s pants and panties and put his penis into her vagina. In the third
incident, the Defendant called the victim to the loveseat in the living room where he was
watching television after the other family members had gone to bed. While sitting
together in the loveseat, the Defendant removed the victim‟s pants and panties and his
own pants and underwear. He placed his finger inside the victim‟s vagina and buttocks
and then put his penis into her vagina.
In challenging the sufficiency of the evidence, the Defendant does not contest the
evidence establishing the elements of any particular conviction. Instead, he attacks the
credibility of the victim‟s testimony, noting that she did not reveal the abuse to her
mother or any other adult for four years after the first incident and that there was no
evidence that she contracted a sexually transmitted disease although he is a carrier of
genital warts and genital herpes. This argument is without merit. As previously noted,
credibility determinations and weight afforded to the evidence are matters reserved for
the jury. This Court, on appeal, will not reweigh or reevaluate the evidence. Moreover,
the testimony of a child victim, alone, is sufficient to uphold a conviction for child rape.
State v. Elkins, 102 S.W.3d 578, 582-83 (Tenn. 2003). Here, the victim testified in
specific detail about each incident of abuse. Although not necessary to uphold a
conviction, this testimony was corroborated by the physical evidence in the case. Dr.
Piercey testified that the victim‟s injuries to her hymen were “definitive evidence of blunt
force penetrating trauma” consistent with the victim‟s disclosure of abuse. She also
explained that it is possible that the victim did not contract genital warts or genital herpes
from her sexual encounters with the Defendant as the disease is not spread every time a
carrier has sex. Additionally, the Defendant‟s statement to police, in which he admits to
kissing the victim and touching her on her panties after taking Ambien, further
corroborates the victim‟s account of the incidents. Viewed in the light most favorable to
the State, we conclude that a rational juror could find the Defendant guilty on all three
counts beyond a reasonable doubt.
CONCLUSION
Based on the foregoing authority and analysis, we affirm the judgments of the trial
court.
_________________________________
CAMILLE R. MCMULLEN, JUDGE
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