### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs J uly 17, 2002
STATE OF TENN ESSEE v. RICKY E. PULLEN Direct Appeal from the Circuit Court for Rutherford County No. F-49469 James K. C layton, Jr., Judge

No. M2001-02140-CCA-R3-CD - F iled December 30, 2002

The defendant, Ricky

E. Pullen, was indic ted by a Rutherf

ord County

Grand Jury on one count of rape of a child and one count of agg rava ted sexual battery. Af ter a jury tria

l, the defendant was convictedof aggravated se xual battery and acquitted of child rape. The trial court sentenced him as a violent offender to eight y ears in the Department of Correction. Only one issue is raised on appeal: whether the evidence was sufficient to convict the defenda nt o f ag gra

vate d sexu al ba

tter y. We conclude that the evidence was sufficient a nd affirm the conviction. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
A LAN E. G LENN , J., delivered the opinion of the court, in which T HOM AS T. W OODA LL and J AMES C URWOOD W ITT , J R ., JJ., joined.
Gerald L. Melt on, Distri ct Public D efende r, and Rus sell N. Per

kins, Assis tant Distr

ict Public Defender, for the appellant, Ricky E. Pullen.
Paul G. Summers, Attorney Gene ral and Reporter; Thomas E. Williams, II I, Assistant Attorney Genera l; William C. Whitesell, Jr., District Attor ney Gene ral ; and John W. Price, III , Assistant District Attorney Gene

ral, for the appellee, State of Tennessee

.

OPINION
FACTS
On April 23, 2000, the twelve-ye ar-old victim attended a sleepove r at the a partmen t of Ruth Smith. The victi m lived in th e same Mu

rfree sboro apa

rtment co mplex and wa s friend s with Ms. Smith’s fourteen-y ear-old daughter, Myah. Other childre n in at tendance included the victim’s brother, Myah’s two brother s, and two friends named Kia and Tisha. The girls’ plan for the evening was to “watch movies and just hang out.”1 The testi mony differs as to what ti me the defendant actua lly arrived , b ut it appea rs to h ave been some ti me betw een 8 :00 a nd 1 1:00 p.m. -2- At s ome p oint that night, the defendant, twenty -nine-ye ar-old Ricky Pullen, arr ived at Smith’s apa

rtment. 1 Ms. Smith

testified that she had known the defendant for four or five months and that he was a frequent visitor at her apartment who w ould sometimes spend the night if “he was locked out or him and his girl would get into it.” On this occ asion, a w oman name d April accompanied

the defe ndant, and the two o f them pro ceeded into a bed room and closed the

door. Ms. Smith “thought that wa s a little unusual” and asked that they leave which, after a

bout thirty

minutes, they did. The defendant procured a twelve- pack of beer and a “Master Pete” videotap e before returning, by

himself, to Smith’s apartment.
The defendant entered the living room where the children were watching movies and eating popcorn and fell asleep in a chair. According to his own testimony, “I

went and got me a

beer and I came back and sat in the chair. I took a little swallow of it and fell asleep.” With the defendant in the room, the victim fell asleep under a blanket o n the living

room floo

r sometime

after mi dnight. Myah Smi th, a sleep on the couch, was the only other child in the living room, as all the other children retired to various bedrooms inside the three-bedr oom apartment.
The victim testified that, early the ne xt morning, she was awakened by the defend ant throwing popcorn in her face. The v ict im said, “I looked around and he w as looking at me. So I didn’tthink nothing of it so I just went back to sleep.” This pec uliar incident repeated itself two mo re times. After the third occurrence, the victim g ot on her knees to brush the accumulated popcorn off

of her. The victim testified that, at this time, the defendant “came behind [her] and wa s moving the popcorn for [her] .” She s aid, “He put his arms around my waist to move it out of the wa y. . . . He got back up and I laid back down and then hecame and got on top of me and I pushed him off.”The victi m testifie d that she was ly ing fac edown und

er a bla nket and t he defe ndant lai d facedown on top of he

r. About te

n minutes la

ter, th e defen dant laid on top of her again, and she pushed him

away . Approxima

tely five minut

es passe d and the d

efenda nt got on t

op of the v

ictim a third time. This time, however, he put his tongue in her ear and whispere d, “Don’t tell nobody.” She pushed him off again, and he laid down beside her

. With the defendant now facing her on the floor, the victim te stified th at he put h is hand in her under wear an d betw een her legs for “[p]roba bly half a sec ond” before she pulled it out. The defendant again put his hand in the victim’s underwear for “[h]alf a second or a sec ond.” Again, she pull ed his hand ou

t of her u nderwe ar. Altho

ugh she could not r

ecall wh ich of the two ti mes i t happened, the victim testified that the defendant digitally penetrated her and that it hurt. According to her testimony, she told him to stop but did not call out for help because she was scared.
The only other pe

rson in the ro om, Myah Smith, testified that she woke up and saw the defendant on the floor by the victim, “fe eling on her” with his hand “[d]own in her pants.” Th e defendant got up q ui ckly, looked toward he r and “grinned,” and sat bac k down in the chair.2 The testimony diff ers as to what t

ime the defendant actually d epa rted, b ut it appea rs to h ave been some ti me bet ween 6:15 and 7 :00 a .m. -3- Su bs eq ue nt ly, the defendant exited the room, told Ms. Smith he wa s leaving , and lef t the apa rtment. 2
That morning, the victim told her brother and mother about what had happened. Her mother testified that the victim looked “like she was sho cked” from the moment she returned home from Smith’s apartment. After the victim left to return home, Myah told her mother about the incident

. The Murfreesboro Police Department was contacted that morning, and thedef endant was arrested shortly

thereafter.
ANALYSIS

I. Standard of Review
In considering this issue, we apply the familiar rule that where sufficiency of the convicting evidence is challenged, the relevant question of the reviewing court is “whether, a fter 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 bey ond a reasonable doubt.” Jackson v. V irginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 , 61 L. Ed. 2d 560, 573 (1979 ); see also State v. Evans , 838 S.W.2d 185, 190-92 (Tenn. 1 992); Statev. Anderson , 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992) ; Tenn. R. A pp. P. 13(e) (“Fi ndings of guilt in criminal actions whether by the trial court or jury

shall be set aside if the evidence is insufficient to support the f indings by the trier of fact of guilt bey ond a reasona ble doubt.”) . All quest

ions involving the c

redibilit y of witnesses, the weight and value to be given the evidence, and all factual issues are resolved by

the trier of fact. See State v. Pappas , 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987) . “A guilty ve rdict by the

jury, approve d by

the trial judge, accre dits the testimony of the witnesses for the State and reso lves all c onflicts in favor of the theory of the State.” State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973) . Our supreme co urt stated the rationale for this rule:
This well- s ettled rule rests on a sound foundation. The trial

judge and the ju

ry see the witnesses f

ace toface, hear their testimony and observe

their de me anoron the stand. Thus the trial judge and jury are the primary

instrumentality of justice to determine the we ight and credibi lity

to be given to the testimony of witnesses. I n the trial forum alone is there human atmosphere and the totality of the evidenc e canno t be repr

oduced w ith a writt

en reco rd in this Court.
Bolin v. State , 219 T enn. 4 , 11, 4 05 S. W.2d 768, 7 71 (19 66) (ci ting Carroll v . State , 212 Tenn. 464, 370 S.W.2d 523 (1963)). A jury conviction remov es th e presumption of innocence with which a defendant is initi al ly cloaked a

nd replaces it with one of guilt, so that on appeal, a convicte d defendant has the burden of demonstrating that the evidence is insufficient. See State v. Tu ggle , 639-4-

S.W.2d 913, 914 ( Tenn. 198 2). When th e credi b il it y of the wit

nesses w as resolved by

the jury in favor of the State , the appe

llate cou rt “may not reco nsider the jury ’s cred ibility assessments.” State v. Carruthers , 35 S.W.3d 516, 558 (Tenn. 2000), cert. denied , 533 U.S. 953, 121 S. Ct. 2600, 150 L. Ed. 2d 757 (2001). II. Sufficiency of the Evidence The defendant argues that the e vidence adduced at trial was insufficient as a matter of law to convict him of aggravated se xual battery as defined in Te nnessee Code Annot ated s ection 39-13-504(a)(4). The defendant specifically a

rgues that the State did not prove that the victim was unde r the age of thirteen and that impeachme nt of the State’s witnesses made their t estimon y incredible. Aggr avated s exual batte

ry is define d, in pert

inent par t, as follo ws: (a) Aggravated sexual battery is unlawful sexual contact with a vic tim by the defendant or thedefendant by a victim accompanied by any of the following cir

cumstanc es: (4) The victim is less than thirteen (13) y ears of age.
Te nn. Cod e Ann. § 39-13-504(a)(4). By definition, "sexual contact" includes the intentional touching of the victim's, the d efenda nt's, or any other person's intimate parts, or the intentional touching of the clothing covering the immediate ar ea of the victim's, the defendant's, or any other perso n's int imat e parts, if that intentional touching can be reasona bly construed as be

ing for the purpose of sexual arousal or gratification. SeeTenn. Code Ann § 39-13-501 (6) . "I ntimate pa

rts" is defined to include the primary g enital area, groin, inner thigh, buttock, or breast of another. See Tenn. Code Ann. § 39-13-501(2).
The defendant’s argument that the State did not prove that the victim was under the age of thirteen is without merit. The incident occurred on April 23, 2000, four mont hs befor e the vic tim turned thirteen. Under oath, the victim testified that she was born on August 25, 1987, and that she was twel ve y ears old

at the time

of the incident in question. Every pe rson is presumed competent to be a witne ss except a s otherwi se provided in the Tennessee Rules of Evidence or by

statute. See Tenn. R. Evid. 601. To testify to a matter, a witness must have pe rsonal knowledge of that matter. See Tenn. R. Evid. 602. Here, there is no legal reason why

the victim’s testimony was insufficient to prove her

age or that the State was required, a s the defendant suggests, to offer “offici a l documentation” of age. See State v. Banes , 874 S. W.2d 73, 78 (Te nn. Crim. App. 1993) (in an aggravated

rape case, victim’s testimony that she was eleven years old at the time of intercourse was sufficient proof that t he vic tim w as und er the a ge of th irtee n). Al thou gh it is the Sta te’s bur den to prove every e

lement of a crime, the proof of the victim’s age was neve r challenged by

the defendant at trial. On appeal, the defendant offers no a uthority, nor are w e aware of any, that

the testimony of a victim is insufficient to establish the victim’s age. Furthermore, the investig ating po lice off

icers,3 Bec ause the recor d forappel lat e rev iew doe s not cont ain a tr ansc ript

of the State’ s cross-examinati on of the defen dan t, we are unab le to determine w hether the State imp eached the defenda nt about his own conflicting statements.

4 Child rape, as define d in Ten nessee Code Annota ted sect ion 39-13-522(a) , requi res unl awful sexual penet ratio n of t he v ict im by th e def

enda nt or t

he de fe ndan t by th e vi cti m.

-5- Tommy Massey and Davi d Harris on, testif ied withou

t objectio n that she

was twel ve at t

h e time. Ac co rd in gl y, we conc lude that the testim

ony at trial w as sufficient to prove be yond a reas onable doubtthat the victim was under the age of thirteen whe n the aggravated se

xual battery

occurred.
The defenda

nt next arg

ues that the impeachment of the State’s witnesses that took place during cross-examination rendered their testimony incredible. Specifically , he asserts that four inconsistencies seriously undermine the c redibility of the State’s witnesses. The fact tha t t he witnesses were impeached do es not n ecessarily make the evidence insufficient to convict the defendant of aggr

avated sexual battery

. First, on direct examinati on, Myah Smith, who was in the room with the victim and the defenda nt, testified that the defendant “was feeling on her” with his hand “down in her pants.” On cross-examination, she testified that, during a pretrial interview, she never

mentioned “any kind of touch ing” and that the first time she said she had witnessed the defendant touching the victim was on direct e

xamination. Second, o n both direct and cross examinations, the victim testifiedthat she was “not sure” whether

the defendant “placed his finger inside of [her] the first time or the second time” he put his hand in her pants. Third, the victim testified that she told her brotherabout the incident as they wer

e walking home from the Smith residence. Her br other testified, however, that the victim told

him about it

before they left the a partmen t. Fourth , after

the third t

ime the defendant laid on top of the her, the victim testified that she thought he

had left the room w

hile My ah Smith testified that he sat down in a chair.
In making t

his argument, the defendant fails to acknowledge the inc onsistencies of his own statemen ts. He first told Officer Massey that he was not at the Smith r esidence on t he nigh t in question. When Officer Massey suggested to him that he

could prove that

he was there tha

t night, the defendant later recanted t his s tory and claimed to hav e been th ere unti l 4:00 a.m. Ruth Smith testified that

he was there unti l 7:00 a.m. During his direct examination, the defendant testified that he left at 6: 15 a.m. and that he did not recall what he told the police when he was que stioned about his whereabouts on the night in question. 3
Ad di ti on al ly, the defendant asserts that, because he w as acquitted of the charge of child rape, the jurors did

not believe the victim’s testimony on the issue of pene tration. 4 He reasons that if the jury chose not to accredit the victim’s testimony on that issue, it necessarily f ollows thatthey

should nothave believed her testimony concerning any

sexual contact

that may have ta

ken place between her and the defendant. Ho wev er, we respectfully disagree. The credibility of the witnesses was resolvedby the jury

in favor of t

h e State, and the appellate court “may not reconsider the jury ’s credibi lity

assessments.” Carruthers , 35 S.W.3d at 558. The recon ciliation of confl icts in testimony is a matter

entruste d exclusive

ly to the jury as the trier s of fact. By rge v. State , 575 S.W.2d 292, 295-6-

(Tenn. Crim. App. 1978). In Tennessee, g reat weight is given to the result rea ched by the jury in a criminal trial. State v. Matthews , 888 S.W.2d 446, 449 (Tenn. Crim. App. 1993). The jury’s ve rdict demonstrates that they believed the testimony of the State’s witnesses and discredited the testimony of the defe ndant. Con sidering

the testim

ony in the lig ht most f avor able to the State, the evidence sh ows that the d

efenda nt twice put his hand s in the pa nts and fo ndled the

genita l area o f a victim under the age of thirte en. Acc ordingl

y, w e conclu de that the evide nce was sufficient to allow a rationa l jury to have f ound the e ssential e

lements of

the crime proven b ey ond a rea sonable d oubt.
CONCLUSION
Based on the for

egoing authoriti es and re asoning , we aff irm the tr ial c ourt’s ju dgment of conviction.

___________________________________ ALAN E. GL

ENN, JUDGE