The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED
JULY 1997 SESSION
July 18, 1997
STATE OF TENNESSEE, ) C.C.A. No.Cecil Crowson, Jr.
02C01-9608-CC-00269
Appellate C ourt Clerk
)
Appellee, ) LAUDERDALE COUNTY
)
VS. ) HON. JOSEPH H. WALKER, JUDGE
)
JOE L. PATRICK, SR., ) (Aggravated Sexual Battery)
)
Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE;
THOMAS T. WOODALL(appeal only) JOHN KNOX WALKUP
203 Murrell Street Attorney General and Reporter
P. O. Box 1075
Dickson, TN 37056-1075 ELLEN H. POLLACK
Assistant Attorney General
GARY ANTRICAN 450 James Robertson Parkway
District Public Defender Nashville, TN 37243-0493
C. MICHAEL ROBBINS ELIZABETH T. RICE
(at trial and of counsel on appeal) District Attorney General
Assistant Public Defender 302 Market Street
118 East Market Street P. O. Box 302
P. O. Box 700 Somerville, TN 38068-0302
Somerville, TN 38068-0700
OPINION FILED:
AFFIRMED
JOE G. RILEY,
JUDGE
OPINION
Defendant, Joe L. Patrick, Sr., was convicted by a jury in the Lauderdale County
Circuit Court of the offense of aggravated sexual battery and sentenced to eight (8)
years in the Department of Correction. He appeals as of right and presents the
following issues for our review:
1. whether the evidence was sufficient to support the conviction;
2. whether the victim was competent to testify about the alleged
incident;
3. whether the victim’s complaint to her mother was properly admitted; and
4. whether the trial court properly instructed the jury on the defense of
intoxication.
We find no error committed by the trial court; therefore, we AFFIRM the judgment.
FACTS
At the time of this incident in January 1995, the female victim was nine (9) years
of age. The defendant was her paternal grandfather. The state’s proof indicated that
on the date in question the defendant came to the residence of the victim and her
family shortly after midnight. The defendant had been drinking, and the victim’s
parents allowed the defendant to stay in the residence that evening since the
defendant had no other place to go.
At approximately 4:00 a.m. the defendant awoke the child victim when he
touched her “privacy” and “behind.” The victim told him to stop, and the defendant told
her not to tell anyone “because I won’t do it anymore.”
The victim was scared and went to her mother’s bedroom and knocked. When
her mother asked what was wrong, the victim replied “never mind.” The same morning
before school the victim told her mother about the sexual assault.
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The defendant testified in his own defense. He stated he was heavily
intoxicated that evening and had very little recollection as to his activities. He,
nevertheless, denied that he sexually assaulted the victim.
SUFFICIENCY OF THE EVIDENCE
Defendant first contends the evidence is insufficient to support the conviction
for aggravated sexual battery. In Tennessee, great weight is given to the result
reached by the jury in a criminal trial. A jury verdict accredits the state's witnesses and
resolves all conflicts in favor of the state. State v. Bigbee, 885 S.W.2d 797, 803
(Tenn. 1994); State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). On appeal, the state
is entitled to the strongest legitimate view of the evidence and all reasonable
inferences which may be drawn therefrom. Id.; State v. Cabbage, 571 S.W.2d 832,
835 (Tenn. 1978). Moreover, a guilty verdict removes the presumption of innocence
which the appellant enjoyed at trial and raises a presumption of guilt on appeal. State
v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). The appellant has the burden of
overcoming this presumption of guilt. Id.
Where sufficiency of the evidence is challenged, the relevant question for an
appellate court 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 or crimes beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v.
Virginia, 443 U.S. 307 (1979); State v. Abrams, 935 S.W.2d 399, 401 (Tenn. 1996).
The weight and credibility of the witnesses' testimony are matters entrusted exclusively
to the jury as the triers of fact. State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984);
State v. Brewer, 932 S.W.2d 1, 19 (Tenn. Crim. App. 1996).
Allowing the state the strongest legitimate view of the evidence and all
reasonable inferences therefrom, the jury could rationally conclude beyond a
reasonable doubt that the defendant had unlawful sexual contact with the victim who
was less than thirteen (13) years of age, and the defendant acted intentionally. See
Tenn. Code Ann. § 39-13-504(a)(4). The jury obviously accredited the testimony of
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the victim. The evidence was sufficient to support the verdict.
COMPETENCY TO TESTIFY
Defendant contends the trial court erred in denying his pre-trial motion to
dismiss the indictment based upon the victim’s incompetency to testify about the
alleged assault. More specifically, the defendant contends that the victim’s testimony
at the first trial, which concluded with a deadlocked jury, reveals that the victim did not
have sufficient personal knowledge to testify about the alleged assault. See Tenn. R.
Evid. 602. Defendant alleges that the victim’s testimony at the first trial indicated her
uncertainty as to whether or not this was a dream.
Firstly, we note that the proper method of attacking lack of personal knowledge
as set forth in Tenn. R. Evid. 602 is not pursuant to a pre-trial motion to dismiss the
indictment. The indictment is not faulty.
Secondly, our review of the victim’s testimony at the first trial and the instant trial
does not indicate a lack of personal knowledge under Tenn. R. Evid. 602. As noted
by the trial judge in overruling the motion to dismiss, it was primarily a question for the
jury as to whether the offense occurred or whether the victim dreamed the event. At
the instant trial the victim insisted the event occurred and was not a dream. This issue
is without merit.
HEARSAY STATEMENTS
During the direct examination of the child victim, the prosecutor asked her if she
told anybody about this incident the next day after it occurred. The victim testified that
she told her mother. The victim did not testify as to what, in fact, she did tell her
mother. The state also elicited from the victim’s mother during her direct examination
that the child reported the incident to her the morning after its occurrence. Again, there
was no testimony as to the details of the complaint. The trial court instructed the jury
that this testimony was to be considered only for corroborative purposes relating to the
credibility of the victim. Defendant contends the testimony of the victim and her mother
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consisted of inadmissible hearsay pursuant to State v. Livingston, 907 S.W.2d 392
(Tenn. 1995).
The Tennessee Supreme Court abolished the fresh complaint doctrine as it
applies to child victims. See State v. Livingston, 907 S.W.2d at 392. Similarly to adult
victims, the fresh complaint doctrine had been used to admit statements made by child
victims after sexual abuse as confirmation of their credibility. See State v. Brown, 871
S.W.2d 492, 493 (Tenn. Crim. App. 1993). Since juries would not likely make the
same presumptions which justify the retention of “fresh complaint” with adult victims,
the Court abolished the fresh complaint doctrine entirely and held it did not apply to
cases involving child victims of abuse --- sexual or non-sexual. Livingston, 907 S.W.2d
at 399. Nevertheless, the Court noted that evidence in the nature of fresh complaint
may be admissible as (1) substantive evidence if it satisfies some hearsay exception,
and (2) corroborative evidence if it satisfies the prior consistent statement rule. Id. at
395.
Livingston concerned the admissibility of testimony of a third party who testified
as to the victim’s statements. In the case sub judice the defendant first attacks the
testimony of the victim herself to the effect that she reported the incident. Firstly, we
note that it is questionable whether this testimony was hearsay since it was not
introduced to prove the truth of the matter asserted. See Tenn. R. Evid. 801(c).
Even if it was hearsay, however, its admission was clearly harmless. During the
cross-examination of the victim by defense counsel, it was implied that the victim
fabricated this allegation since it was only a dream. Although a prior consistent
statement is not admissible on direct examination absent an impeaching attack on that
testimony, see State v. Meeks, 867 S.W.2d 361, 374 (Tenn. Crim. App. 1993), the
testimony clearly would have been admissible on re-direct examination as a prior
consistent statement. If the testimony was hearsay and erroneously admitted on direct
examination, it was harmless beyond a reasonable doubt.
The testimony of the victim’s mother is definitely controlled by Livingston. As
noted, however, the child victim’s testimony had been subjected to an allegation of
fabrication before the mother testified. Her testimony was properly admitted for
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corroborative purposes as a prior consistent statement, and the trial judge so
instructed the jury. State v. Livingston, 907 S.W.2d at 395. This issue is without merit.
JURY INSTRUCTION ON INTOXICATION
Defendant finally contends the trial court erred in refusing his written request for
a jury instruction relating to intoxication. We disagree.
The special request submitted by defense counsel came from T.P.I. - Crim.
40.02 (4th ed. 1995). However, defense counsel omitted various portions of the
pattern charge. The trial court gave this pattern charge which included certain
language omitted by defense counsel. The jury charge as given by the trial judge was
correct in all respects. This issue is without merit.
The judgment of the trial court is AFFIRMED.
JOE G. RILEY, JUDGE
CONCUR:
JOE B. JONES, PRESIDING JUDGE
DAVID H. WELLES, JUDGE
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