State of Tennessee v. Timothy Ware

02/08/2018
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs May 17, 2017
STATE OF TENNESSEE v. TIMOTHY WARE
Appeal from the Criminal Court for Shelby County
No. 16-00491 John Wheeler Campbell, Judge
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No. W2016-02082-CCA-R3-CD
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Defendant, Timothy Ware, was indicted by the Shelby County Grand Jury for one count
of aggravated sexual battery. Following a jury trial, Defendant was convicted as charged
and sentenced to 16 years’ confinement. On appeal, Defendant contends that the
evidence was not sufficient to sustain his conviction. Having reviewed the record and the
briefs of the parties, we affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
THOMAS T. WOODALL, P.J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and ROBERT W. WEDEMEYER, JJ., joined.
Stephen C. Bush, District Public Defender; and Tony N. Brayton, Assistant Public
Defender, Memphis, Tennessee, for the appellant, Timothy Ware.
Herbert H. Slatery III, Attorney General and Reporter; Breanne N. Hataway, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Leslie Rainey,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
Facts
We will identify the minor victim in this case by her initials, A.A. In January
2015, A.A. lived with her mother Yalonda Durrett and her grandmother in a house in
Memphis. They shared the house with their roommates, Defendant and his girlfriend,
Vicky. Ms. Durrett had known Defendant for 11 or 12 years, and Defendant had lived
with Ms. Durrett and her family for two-and-a-half years.
In January, 2015, A.A. was ten years old. She testified about an occasion when
she fell asleep on a couch in the living room while watching a movie. Defendant was the
only other person in the room with her. A.A. testified that she woke up and felt
Defendant touching her under her dress. She testified that Defendant was rubbing her
“wrong spot” with his fingers, on top of her underwear. A.A. identified the genital area,
on a female diagram, as the place Defendant touched her. When A.A. woke up,
Defendant “started playing with his phone like he didn’t do anything.” A.A. went to her
mother’s room and asked to sleep with her. She told her mother two days later what
Defendant had done.
A.A.’s mother, Ms. Durrett, testified that her daughter told her about the incident
on January 22, 2015. She testified that A.A. was crying and she appeared “[v]ery scared,
very nervous, worried.” Ms. Durrett testified that A.A. typed a message on her phone
because she did not want to say it aloud. Ms. Durrett “told [A.A.] to put on her shoes[,]
and [they] left the house immediately.” They went to her friend’s house and called the
police. The police spoke to Ms. Durrett and A.A. at Ms. Durrett’s friend’s house. Ms.
Durrett testified that A.A. did not have a medical exam following the incident. On cross-
examination, Ms. Durrett testified Defendant had been a friend of the family and that she
had never had problems with him before the incident.
Stacey Hughes, a detective in the Sex Crimes Unit of the Memphis Police
Department, testified that a medical examination was not performed on A.A. because two
days had elapsed between the incident and when it was reported. She explained that the
victim had “changed clothes and had a bath, [and] there would be no DNA to be
recovered.”
Teresa Onry, of the Memphis Child Advocacy Center, conducted a forensic
interview of the victim on February 2, 2015. A video recording of the interview was
admitted as an exhibit at trial and played for the jury. In the interview, A.A. stated that
she fell asleep on the couch, and she felt Defendant “touch her wrong spot” with his
finger. Defendant reached over from the other couch where he was sitting to touch her.
She stated that when she woke up, Defendant “acted like he wasn’t doing anything, just
playing on his phone.” A.A. went to her mother’s bedroom and asked to sleep with her,
and her mother told her to sleep in her own bed. A.A. stated that the incident happened
in January. A.A. stated that she did not know if Defendant had ever touched her
inappropriately before the incident.
Analysis
In determining the sufficiency of the evidence, the standard of review is “whether,
after viewing the evidence in the light most favorable to the prosecution, any rational trier
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of fact could have found the essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979); see State v. Vasques, 221 S.W.3d 514,
521 (Tenn. 2007). The State is “afforded the strongest legitimate view of the evidence
and all reasonable inferences” from that evidence. Vasques, 221 S.W.3d at 521. “A
crime may be established by direct evidence, circumstantial evidence, or a combination
of the two.” State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998); see also State v. Sutton,
166 S.W.3d 686, 691 (Tenn. 2005). “The standard of review ‘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.
Aggravated sexual battery is defined, in relevant part, as “unlawful sexual contact
with a victim by the defendant or the defendant by a victim . . . [when] [t]he victim is less
than thirteen (13) years of age.” T.C.A. § 39-13-504(a)(4). Sexual contact, in relevant
part, is “the intentional touching of the victim’s . . . [or] the defendant’s . . . intimate
parts, or the intentional touching of the clothing covering the immediate area of the
victim’s . . . intimate parts, if that intentional touching can be reasonably construed as
being for the purpose of sexual arousal or gratification[.]” Id. § 39-13-501(6) (2010)
(amended 2013). Intimate parts are “the primary genital area, groin, inner thigh, buttock
or breast of a human being[.]” Id. at (2).
Defendant does not challenge the proof to support any specific element of the
offense, but rather he argues that the evidence is insufficient to sustain his conviction
because the State did not provide independent evidence to corroborate the victim’s
testimony. However, the law does not require that a minor victim’s testimony be
corroborated to support a conviction. State v. Smith, 42 S.W.3d 101, 106 (Tenn. Crim.
App. 2000) (stating that a twelve-year-old victim’s testimony regarding incidents of
aggravated sexual battery need not be corroborated); see also State v. Russell Victor
McCollum, No. M2012-00941-CCA-R3-CD, 2014 WL 1102012, at *6 (Tenn. Crim. App.
Mar. 20, 2014).
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The evidence presented by the State at trial showed that A.A. was ten years old at
the time of the incident. She testified that Defendant reached under her dress and touched
her “wrong spot,” which she identified as her vagina, over her underwear. Defendant
seemingly challenges the victim’s credibility, pointing that Defendant had to reach over
an end table that was between the two couches in order to touch the victim. Defendant
also notes that the victim’s mother and grandmother were present in the house at the time
of the incident; that the family had known Defendant for several years and had never
experienced any problems with him; and that the victim did not report the incident for
two days. We reiterate that it was the jury’s prerogative, as the trier of fact, to evaluate
the credibility of the witnesses, determine the weight given to witnesses’ testimony, and
reconcile all conflicts in the evidence. See Campbell, 245 S.W.3d at 335 (citing Byrge,
575 S.W.2d at 295). The jury in this case accredited the victim’s testimony and resolved
all inconsistencies in the evidence in favor of the State. We conclude the proof was
sufficient to sustain Defendant’s conviction. Defendant is not entitled to relief.
CONCLUSION
The judgment of the trial court is affirmed.
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THOMAS T. WOODALL, PRESIDING JUDGE
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