IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs May 19, 2020

STATE OF TENNESSEE v. DONALD GARDNER

Appeal from the Circuit Court for Cocke County

No. 7653 James L. Gass, Judge

No. E2019-01283-CCA-R3-CD

The defendant, Donald Gardner, appeals his Cocke County Circuit Court jury conviction 

of aggravated sexual battery, arguing that the evidence adduced at trial was insufficient to 

support his conviction. Discerning no error, we affirm.

Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which CAMILLE R.

MCMULLEN, and J. ROSS DYER, JJ., joined.

Keith E. Haas, Assistant District Public Defender, for the appellant, Donald Gardner.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Assistant 

Attorney General; James B. Dunn, District Attorney General; and Tonya D. Thornton, 

Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

The Cocke County Grand Jury charged the defendant by presentment with 

one count of aggravated sexual battery arising from an incident involving a seven-year-old 

child.

At the February 2019 trial, R.C.,1the victim testified that she was born on 

August 28, 2008. Although the victim “mostly” lived with her aunt Amanda Belton at that 

time, she spent weekends at her mother, T.C.’s, house. When the victim was in second 

grade, the defendant lived with T.C. who was “helping him.” The victim stated that on one 

occasion at T.C’s house, she was taking a bath while T.C. was at the store, and the 

defendant came into the bathroom uninvited. The victim’s godmother, Judy Davis, was in 

 

1 To protect the identity of the minor victim, we will refer to her and her mother by their initials.

09/25/2020
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the kitchen at the time. The victim said that she screamed when the defendant came into 

the bathroom, but because Ms. Davis was wearing headphones, she did not hear the victim 

scream. The victim stated that on that occasion, as was her ordinary practice, she ran her 

own bath water and bathed herself. While the victim was still in the tub, the defendant

touched her with his finger “in the wrong spot,” which the victim explained was her front 

“private area.” The victim stated that it hurt when the defendant touched her.

The victim got out of the bathtub and “ran to get my clothes in my room.” 

When T.C. came home, the victim “ran to my mom and I told her about what happened.” 

Ms. Belton was present as well. The victim stated that she told T.C. about the defendant’s 

behavior because her mother “wants to know whenever something bad happens to me” and 

because “it’s wrong” for an adult to touch her private parts. The victim said that T.C. and 

Ms. Belton started crying when she told them what the defendant had done. The victim 

then left with Ms. Belton to return to Ms. Belton’s house “[u]ntil my mom got [the 

defendant] out.” The victim stated that, prior to this incident, the defendant had never come 

into the bathroom with her, and she did not ask for his help in taking a bath.

During cross-examination, the victim stated that she saw Ms. Davis wearing 

headphones in the kitchen before she took a bath. She acknowledged that the bathroom 

door had a lock but that she “forgot to lock it.” The victim recalled telling the forensic 

interviewer that it would have been permissible for Ms. Davis to enter the bathroom while 

she was bathing because she was her godmother. The victim stated that the defendant did 

not remove his clothing while he was in the bathroom with her.

The victim said that she had talked to numerous people about the defendant’s 

touching her, including her guidance counselor, her nanny, Ms. Belton, the prosecutor, and 

some relatives. She denied that she had changed her story. She stated that when the 

defendant entered the bathroom, she “screamed as loud as I can.” She acknowledged that 

she did not tell the forensic interviewer that she had screamed or that Ms. Davis was 

wearing headphones, explaining that she forgot to tell the interviewer about it. She also 

acknowledged that in the forensic interview, she said that she had locked the bathroom 

door. The victim stated that Ms. Davis had previously been in the bathroom with her while 

she was taking a bath. She acknowledged that she told the forensic interviewer two 

different things about the position of her legs while she was in the bathtub and that one of 

those statements was not truthful.

Judy Davis, the victim’s godmother and T.C.’s cousin, testified that in April 

2016, she lived with T.C., and the defendant also lived with them sometime that month. 

On one occasion, T.C. went to the grocery store, and Ms. Davis, the victim, and the 

defendant remained at the house. Ms. Davis was in the kitchen listening to music with 

headphones while the victim took a bath. The victim got in and out of the bath herself and 
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did not ask for help bathing. When T.C. returned home, the victim was upset and crying 

and went out to the car to see T.C. When Ms. Davis went outside, T.C. was angry with the 

defendant, and Ms. Davis said she had never before seen T.C. that angry.

During cross-examination, Ms. Davis stated that she had seen the victim in 

the bathtub that day when she went into the bathroom, but she knocked before entering. 

She acknowledged that the door was unlocked. She then went back to the kitchen to listen 

to music. She did not know where in the house the defendant was at that point.

T.C., the victim’s mother, testified that she had lived at 639 Myers Circle in 

Newport in Cocke County for the past six years. In April 2016, Ms. Davis lived with her,

and the victim lived there part time. The victim primarily lived with T.C.’s sister, Ms. 

Belton, who took the victim to school and helped T.C. “a lot” because T.C. did not have a 

vehicle. T.C. stated that she met the defendant on an online dating platform. The defendant 

was homeless at the time and asked T.C. if he could stay with her for a period, and she 

agreed. She estimated that she had known the defendant for a couple of months before he 

came to stay with her. The defendant stayed with her for approximately one week in April 

2016.

During that period, Ms. Belton had trouble with the water at her house, and 

the victim had to bathe at T.C.’s house. T.C. stated that the victim had bathed herself since 

she was five years old, running her own water and drying off herself. On the day of the 

incident at issue in this case, T.C. and Ms. Belton went to the store while the victim was in 

the bath. When they arrived back at the house, the victim “ran to the car” and told her that 

the defendant had “touched her” “[i]n her private area” while she was in the tub. The 

victim “was hysterical and -- and crying and she was just tore up.” T.C. stated that she 

“snapped” and punched the defendant and told him to leave. Ms. Belton took the victim 

with her and the left the house. T.C. stated that she never asked the defendant to help give 

the victim a bath.

T.C. stated that she did not immediately contact the police or the Department 

of Children’s Services (“DCS”) because she “didn’t know what to do” and “was still 

shocked that it happened.” DCS, however, came to her house one or two days later because 

the defendant reported T.C. to DCS, which he had said that he would do when T.C. kicked 

him out. The DCS agents told T.C. that they were there because of an allegation that she 

was smoking marijuana in the house. T.C. acknowledged that she did smoke marijuana at 

the time but stated that she did not smoke or drink in front of the victim. During her 

interview with the DCS agent, she told him about the defendant’s abusing the victim 

because she “just felt like . . . somebody needed to know.” She denied that she made the 

story up as revenge for the defendant’s reporting her to DCS.
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T.C. acknowledged that the victim had lied to her in the past, stating that she 

could tell when the victim was lying because “she looks funny when she lies. She gives 

you a weird, like, sneaky look when she lies.” She reiterated that the victim “was crying 

and in tears” when she reported the defendant’s conduct and that she had “never seen her 

like that.”

During cross-examination, T.C. stated that when she told the defendant to 

leave her house, he told her that he was going to report her to DCS for smoking marijuana 

and drinking in front of the victim, but T.C. maintained that she had not done so. The 

victim’s usual schedule was to live with Ms. Belton from Sunday evening through the week 

days and with T.C. from Friday evening through the weekends. T.C. acknowledged that 

she tested positive for the use of marijuana in the drug test administered by the DCS agent 

and that the agent found a bong in her house. She also acknowledged that her older 

daughter had once been removed from her care by DCS when that daughter was six years 

old. She stated that she had a working telephone at her house and that she knew how to 

contact the police.

DCS agent Rodney Freeman testified that on April 12, 2016, he was referred 

to T.C.’s home for an allegation of “environmental neglect and drug exposed child.” The 

next day, he interviewed the victim at her school for approximately 20 minutes; the victim 

had no “knowledge of drug use in the home” and did not report any sexual abuse. He then 

interviewed T.C., Ms. Davis, and Ms. Belton. While at T.C.’s house, he found “what 

appeared to be a bong in the closet” during a search of the house. T.C. admitted to him 

that she smoked marijuana, but she denied that she did so in front of the victim. T.C. then 

told him that only a few days prior, the defendant had inappropriately touched the victim. 

Mr. Freeman explained that when he interviewed the victim at school, he asked her 

“questions about domestic violence and discipline and whether or not anybody ha[d] ever 

touched” her because it was his practice to “always do a minimum fact-finding” interview 

“[r]egardless of what the allegations are.” When Mr. Freeman asked her about sexual 

abuse, the victim “shrugged her shoulders and said nobody had ever touched her private 

parts.” After learning of the allegation of sexual abuse from T.C., Mr. Freeman scheduled

a forensic interview for the victim. During the forensic interview, which Mr. Freeman 

viewed by a live camera feed, the victim told the interviewer that the defendant had touched 

her.

During cross-examination, Mr. Freeman explained that he did not tell the 

victim what allegations had been made against T.C., but he asked her questions such as 

whether she had seen her mother “or anybody at their home snorting anything into their 

nose or give themselves shots or smoke something that smells funny.” He reiterated that 

the victim denied having been touched inappropriately when he interviewed at her school.

He stated that T.C.’s drug screen revealed the presence of marijuana and benzodiazepines 
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in her system. He interviewed Ms. Belton at her home, and he did not find anything 

concerning there. He acknowledged that DCS had previously been involved with T.C. 

regarding her older daughter.

After a Momon colloquy, the defendant elected not to testify.

Being recalled by the defendant, T.C. denied telling Mr. Freeman that the 

victim had reported that the defendant washed her in the bathtub.

On this evidence, the jury found the defendant guilty as charged. After a 

sentencing hearing, the trial court imposed a sentence of 12 years’ incarceration. 

Following a timely but unsuccessful motion for a new trial, the defendant filed a timely 

notice of appeal. In this appeal, the defendant argues that the evidence at trial is 

insufficient to support his conviction.

Sufficiency of the Evidence

The defendant contends that the State failed to present sufficient evidence to 

establish that he knowingly and intentionally made sexual contact with the victim or that 

any contact was for the purpose of sexual arousal or gratification. The State asserts that 

the evidence is sufficient.

Sufficient evidence exists to support a conviction if, after considering the 

evidence—both direct and circumstantial—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. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319 (1979); 

State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011). This court will neither re-weigh the 

evidence nor substitute its inferences for those drawn by the trier of fact. Dorantes, 331 

S.W.3d at 379. The verdict of the jury resolves any questions concerning the credibility of 

the witnesses, the weight and value of the evidence, and the factual issues raised by the 

evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Significantly, this court 

must afford the State the strongest legitimate view of the evidence contained in the record 

as well as all reasonable and legitimate inferences which may be drawn from the evidence. 

Id.

Our Code defines aggravated sexual battery, as relevant to this case, as 

follows: “Aggravated sexual battery is unlawful sexual contact with a victim by the 

defendant or the defendant by a victim . . . [and t]he victim is less than thirteen (13) years 

of age.” T.C.A. § 39-13-504(a)(4). “‘Sexual contact’ includes the intentional touching 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). 

“‘Intimate parts’ includes . . . the primary genital area, groin, inner thigh, buttock or breast 
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of a human being . . . .” Id. § 39-13-501(2).

Here, the evidence taken in the light most favorable to the State established 

that when the victim was seven years old, the defendant entered the bathroom while the 

victim was taking a bath and touched her genital area. The defendant did so while the 

victim’s mother was out of the house and while her godmother was listening to music in 

the kitchen and unable to hear activity in the bathroom. Under these circumstances, a 

rational jury could have found that the defendant intentionally touched the victim’s vaginal 

area and could reasonably construe the touching as being for the purpose of sexual arousal 

or gratification.

Accordingly, the judgment of the trial court is affirmed.

_________________________________ 

JAMES CURWOOD WITT, JR., JUDGE