# FILED November 20, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT JACKSON SEPTEMBE R SESSION, 1997 STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9610- CC-00359 ) Appellee, ) ) ) HENRY COUNTY VS. ) ) HON. JULI AN P. GUINN TERRELL DION COWANS, ) JUDGE ) Appe llant. ) (Rape of a Chil d & Aggravated ) Sexual Ba ttery)
ON APPEA L FROM THE JUDGMENT OF THE CIRCUIT COURT OF HENRY COUNTY
FOR THE APPELLANT : FOR THE APPELLEE : GUY T. WILKIN SON JOHN KNOX WALKUP Distri ct Public

Defender Attorney Generaland Reporter P.O. Box 663 117 Fo rrest Ave nue N orth EUGENE J. HONEA Camden, TN 38320 Assistant Attorney General 425 5th Avenu e North Nashvill e, TN 37243 ROBERT “GUS”RADFORD Distri ct Attorney General P.O. Box 686 Huntingdon, TN 38344
OPINION FILED ________________________ AFFIRMED DAVID H. WELLES , JUD GE1 It is a po licy of th is Co urt to r efer to ch ild sex abus e victim s by th eir initia ls only. -2- 

# OPINION

The Defendant, Terr

ell Dion Cowans, was convicted of one count of rape of a c hil d and o ne cou nt of aggravated sex ual b att ery. He was sentenced as a Range I, standard offende r to fifteen (15) years for the r ape of a chil d convicti on and eight (8)years for the aggravated sexual batt ery convi ction, t

o be served
concurren tly. The De fendant app eals his convictions , ra ising four issues: (1) That the tri al court erred by fai ling to grant theDefenda nt’s motion for a new trial based on the newly di scovered ev idence that one of the vi ctims recanted her testimony; (2) that the tria l court erred by not pe rmitting de fense co unsel to question one of the victi ms about an alleged pregnancy by another man; (3) that the trial court erre d by failing to s uppres s sta te ments made by the De fendan t; and (4) that

the eviden ce was insufficient to suppo rt a verdict of g uilt for both conviction s. W e affirm the judgm ent of the tria l court.

On June 27, 1994, A. W. and S.E. 1 , w ho we re cou sins, w ere at A .W .’s house in Pari s, Tennessee . That morn ing, t he two girls decide d to walk to A.W .’s uncle ’s house nearby to get som e mon ey for food . Befo re theyleft, either t he Defendant called A.W . or A.W . called the Defen dant on the teleph one. She had met him at Ralph’s Golf . At that time, A.W. was twel ve (12) year s old, S.E. was eleven (11) years old, and t he Defendant was eig hteen (18) years old. The Defendant told A.W
. that he wanted her to go to another gi rl’s house and knock on her door for him. A.W. did not know who the other girlwas.-3- A.W
. tookS.E. with her to Bryan Atki nson’s house because the Defendant
was going to be there to tellher where the ot her girllived. S.E. was unaware of the contentof the conver sation bet

ween A.W. and the Defendantand A .W . told her they were taking a shortcut to her un cle’ s house. A. W. a nd S.E
. went to A tkinso n’s house where the Defendant was waiti ng. A.W. pulled S. E. into t he house. They all talked togeth er in Atkinson ’s bedroo m. The D efenda nt went into the bathro om a nd told A.W . to go w ith him because he needed to tal k to her. The bathroom door wa s shut an d the light w as on. T he De fendan t t old her that he liked S.E. a nd that

he want ed to talk to S.E. The Defendant was we aring pa nts and A.W . was we aring sho rts and a shirt. S.E. thought she heard a scream while A.W. was in the bathr oom with the Defendant , but she was not sure.

A.W. left the bathroom and told S .E. that the D efenda nt wante d to talk to her. The D efe ndan t t oldS.E . t o “come here” and she compli ed. The Defendant pulled S.E. into th e bathro om. A.W
. sat in Atkinson’s bedr oom. The Defendant appeared to be wearing a pair of j ogging pants and S. E. was wearing bl ue jean shorts and a s hir

t. Th e Defe ndant

pushe d S.E. down on the f loor . He held her
armsdown above her head. The Defe ndant pull ed her clot hes off or down. S .E. could not rec all whe ther the Defe ndan t’s clothes w ere off because the room was dim. The Defendant fondl ed S.E.’s br easts over her

shirt. She could not
reme mbe r wheth er the D efend ant exp osed or touc hed h er with h is penis . S.E. told him to “ let me up” and t he Defendant all owed her to get up and put on he r clothes. The Defendant said somet hing about “stillfrien ds” a nd S.E. walked away. S he left the b athroom and we nt outside on the po rch.-4- A.W
. then we nt into the bathr oom to talk with the Defendant. He told her he wanted to have sex . The door wa s shut. A.W . repli ed that she had a boyfri end and did not want to have sex wi th the Defendant . The Defen dan t persistedand got closer to A.W. He pushed her eit her agai nst the sink or the toilet and op ened h er shorts . A.W
. said n o but the Defendant was holding her hands. He pulled dow n th e shorts and t hey felldown farther . The Defendant exposed his penis and t hen penetrated A. W.’s vagina with part of his p enis. A.W
. kept saying no an d the D efend ant with drew a nd eja cul ated. The Defendant apologize d and s aid he “got carried away. ” A.W. was crying and left t he bat hro om. She left and caught up wit h S.E. who was already walk ing down the alley behi nd the house.

A.W
. asked S. E. if somethi ng happened to her and S.E. said nothi ng had happened. Later that d ay , S.E. tol d her stepmother what the Defendant had done. Her stepmother and f athertook her

to the hospi tal emergency r oom later thatevening. A.W. also went to thehospital . Carolyn Gore of the Depart ment of Human Services’child abuse i nvestigat ion divi sion interviewe d both victim s. Dr. Debra Sue S elby con ducted pelvic exam inati ons on both victim s and ra pe kits were collected. Dr. Selby examined S.E. and found redness at the entrance of the vagina as wel l as superf icial lacerati ons at three areas as well as on the right labia m inora. Th e hymen was red but i ntact. Dr . Selby exami ned A.W. and found a discharge f rom the vagina and found that t he hymen had a small amount of tissue l ef t, wit h r agge d edg es an d a very large o penin g rathe r than a sma ll opening which is expec ted. There w as purulent disc harge at the ce rvix. Dr. Selbynoted that damage to the hymen could be due to causes other than vaginal-5-

penetrati on, such as blunt t rauma. Dr. Selby did nothave the test res ults at tria l, but recall ed t hat

thepre sence of

spe rm wa s no t detec ted in eit her

vi cti m.

Lieutenant

Eddie Snow , an inve stig at or for the P aris Police Depa rtment, was assigned to t he case. He interviewed Bryan Atkinson and t hen decided to contact the Defen dant. L ieuten ant Snow t elep honed the Defendant and requested that he come to th e police depar tment. The Defendant came and spoke with Sno w, which conversati on was init ially not recorded. Lieutenant Snow then gave the Defen dant Mirandawarnings be fore he agre ed to mak e an a udio taped statement. In that statement, t he Defendant admitted that he was at Bryan Atkins on’s house wh en the victims we re ther e. Heasked A.W . to have se x with him and she ag reed. They went into the bathroom and A.W. was posi tioned on th e toilet. He state d that A.W . pulled he r shorts do wn and he proc eeded to penetra te her vagin all y, b ut on ly p art ial ly. He stated th at he then asked A.W. how old she was and s he said she was thirteen (13). He withdrew, but denied t hat he ejaculate d.

The Defen dant de nied ha ving any s exual co ntact with S .E. He stated that he was in a bac k ro om al one w it h her for a br ief ti me and he asked whether she had a boyfri end and how old she was. He stated that S. E. said she was t hirteen. He denied touching S.E. or ex posing his penis or pene trating her w ith his pe nis or his fingers.

The Defendant was indict ed on July 5, 1995 , for one co unt of rap e of a child and on e coun t of aggravated sex ual b att ery. De fense coun sel mo ved to suppress the Defenda nt’s statemen t, which was de nied by the trial court after a-6-

hearing on the mo tion held o n Augu st 15, 199 5. He wa s tried by a H enry Co unty jury on November 8, 1995, and found guil ty on both count s. The Defendantwas sentenced to fif

teen (15) years for t he rape of a chi ld c onvict ion and eight (8) years for th e aggra vated se xual batte ry conviction
.

I.

In his first issue in this appea l, the Defenda nt argues that the trial court erred by fail ing to grant a new trialbased on newly di scovered evi dence. In his motion for new trial the D efend ant alle ged th at there was n ewly dis cove red evidence in the form of A.W .’s recantation of her tes timony a t tria l. It was submitted as an aff idavit for consi deration at

the hearing on the motion. The contents of the aff idavit i n pertinent part i s as follows:

Terre ll Dion Cowans and I, [ A.W.], are friends. He wa s ta lki ng to me about anothe r girl on that d ay. He did not r ap e me, he did not even touch me. When ni ght camethe pol icecameand got me an d to ok me to the hospital , I was shocked. Terrell and I did not have inter

course. He did no t rape m e. Carolyn Gore told us t hat the test showed I had had intercour

se. I t ried to tell Ms. Gore, the socialworker, t hat it di d not h appen and she w ould not listen. Ran dy Shank le heard m y conversati on with Ms. Gore. We were at my house when t h is conversation to ok place. Sh e said it was too late, the trial is over.

. . . I swear that I am telli ng the trut h and I want to do the right thing. I have told my grand mother, m y uncle, and m y fri ends thathe did not do anything to me. Mrs. Gore k ept on pressuri ng me at th e Emergency Room. She told me wh at t o say. I even told Mrs. Gore after t he trial that I di dn’t thi nk it was fair and she sai d it was too late.

. . . .
The Defen dant as serts that this newly d iscove red ev idenc e entitle s him to a new trial . The decisi on to grant or deny a ne w trial on the ba sis of ne wly-7-

discovered evidence i s a matter whi ch res ts in the so und discret ion of thetrial court. State v. Goswick , 656 S.W.2d 355, 358 (Tenn. 1983). To acquire a new trialas of right based on newly di sc ove red evidence, a defendant must demo nstrate (1) rea sona ble diligen ce in seeking the newly discover ed evidence; (2) materia lity of the evide nce; a nd (3) that the evidence wil l li kely change t he result of the trial. State v. Nich ols , 877 S.W.2d 722, 737 (Tenn . 1994); Goswick , 6 56 S.W.2d at 358-360. A new trial willnot be granted on the basis o f newl y discovered eviden ce wh en the effect is merely to impeach a witness’ testimony at trial unle ss the impe achin g evide nce is s o cruc ial to the defendant’ s guilt or innocence that its admiss ion would chang e the ou tcome of the cas e. State v. Singleton , 853 S.W .2d 490 , 496 (T enn. 19 93); State v. Roge rs , 703 S.W.2d 166, 169 (Ten n. Crim. App . 1985).

At the hearing on the motion for a new trial, no oral testimo ny w a s presented, and the tri al court r esolved the i ssue b ased u pon the affidavit. Therefore, the rule v

esting cont rolli ng discreti on in the trial judge does n ot govern on appeal, and whet her the requi rements have been fulfill ed becomes a question of law. Goswick , 656 S.W .2d at 359 ; State v. Holt , 801 S.W.2d 518, 521 (Tenn. Cri m. App. 1990). I n r efusing t o gr ant a new tri al, the t rial j udge stated on t he record th at:
[Y]ou’ve got the obvio us prob lem tha t arises from time to time of t he socalled recanting vict im. And it was a subject that co uld ha ve eas ily been explored had it bee n done at the ti me of tri al. As a matter of fact , the law says that it should have been done at that ti me. And having once taken the sworn testimony that l aw is very loathe to now take som ebod y’s recantati on by swearing t hat they swore to a lie, p articula rly when it coul d have been taken car e of appropri ately as i s required by law at th e time of the tria l.-8- We agree th at the De fendan t had an opportu nity at tri al to cros s-examine the victim to de termine the verac ity of her testim ony. Eve n if we we re to as sume thatthe Defend ant could not h ave obtained t he new inform ation w ith reas onab le dilige nce, we do not be li eve a new trialwas warranted. Obviously , the accusation s made by the vict im were highl y materialto the case. Yet, no recantati on of the vi ctim’s testimony can alter t he fact th at the De fenda nt him self admitted to pene trating the vic tim. Circum stantialevidence obta ined from the medical examination al so corroborated the all egation t hat a penetrati on oc curred. Finally, all of the persons pres ent when the act occurred testifi ed or made statem ents that the Defendant and A.W. were in t he bathroo m toge th er. Therefore, we do not be lieve tha t eviden ce tha t the victim recanted would likely chang e the res ult of the trial. Th is issue is w ithout me rit.

II.

As his second is sue, the Defendant argues that

the tri al court erred by not permitti ng defens e counse l toquest ion t he vi cti m, A. W., ab out her all eged pregnancy by another man. Therecord ref lects t hat defense counselraised the issue after

the close of

the proof. Defense counsel i nformed the trialjudge that Bryan Atkinson told her that A.W. was pregnant. Bryan Atkinson testifi ed in a jury-out hearing that “I migh t have heard some talk at school” approxi mately “

two or three mon ths ago.” The offense in q uestion occur red on June 27, 1994, and the trial was co nducte d on N ovem ber 8, 19 95. The trialcourt concl uded that the informati on w as m erely a rumor as the wi tness admitted. He found that the
e v idence did not comport with the r

equirements of

Rule 412 of the Tennesse e-9-

Rules of Evidence. Finally, the tri al judge stated that t he allegat ion was irr elevant and immaterial to the prose cution bei ng conducted.

The Defendant argues t hat under Rule 412 of the Tennessee Rules of Evidence, heshould have been allowed to question t he victi m at trialregarding spec ific instancesof conduct under an exception for newly discovered evidence. Tenn. R. Evid. 412(d)(1)(I). Th e State coun ters that Rule 412 do es not ap ply to the offense of ra pe of a child. The language of Rule 412 states t hat it app lies when “a person is

accused of an off

ense under T.C.A. §§ 39- 13-502 [aggravated rape], 39-13-503 [r

ape], 39-13- 504 [aggravated sexual ba ttery] , 39-13-505 [sexual ba ttery], 39-13-507 [spous al sexual offens es], or th e attem pt to co mm it any such offense. ” Tenn. R. Evi d 412. Rape of a chi ld, Tennessee Code Annotated section 39- 13-522, is not one of the offen ses en umera ted. See also State v. Jason Adam Brinkley, Jr., A.K.A. “Bubba” , C.C. A. No. 01C01- 9307- CC00231, Sum ner C ounty (Ten n. Crim . App., Nash ville , July 14, 1995)(Rul e 412 held inapp licable to statutory rape). Ho wever, we find that there i s a disti nction between Brinkley

and the cas e at bar.

We first note that

the offense of rape of a child was enacted by the General A ssem bly in 1992 and codified as Tennessee Code Annotated section 39- 13- 522. See Tenn. Pub. Acts 1992, ch. 878 § 1. Prior to t hat, the of fense now embodied in section 39-13-522 was contained wit hin the offense of aggravated rape before it wa s recod ified. See Tenn. Code Ann. § 39- 13-502 (a)(4) ( Supp. 1991). Rule 412 of the Tennessee Rules of Evidence was established i n 1991 to replace th e rape shield statute contained Tennessee Code Annotated section 40-17-119. See Tenn. R. Evid. 412, Advisory Commiss ion C omment. The-10-

comment contains no refere nce to rape of a chil d. Alt hough we cannot determi ne why rape of a chi ld ha s been om itted, we believe that R ule 412 sho uld govern evidentiary rulings for the of fense, rat her than the gene ral applic ation o f Rule 404(a)(2). This interpretat ion avoids the il logical resul t that would otherwi se occurin t his case. Her e, th e evi dence regardi ng S.E. , the vic tim of the aggravated sexual battery would be governed by Rule 412 because that offense is one of the enumerated of fenses under the rul e. However, ev idence regardi ng A.W ., the vict im of the rapeof a chi ld, would be adm itted on ly by wa y of Ru le 404(a)(2).
Therefore, we shall consi der the Defendant’s argument that the evi dence shou ld have b een a dmitte d und er Ru le 412 . The D efend ant arg ues th at Ru le 412 sets out t he procedure for questioni ng a victi m about specifi c instances of condu ct. See Tenn. R. Evid 412(c)(4)(I) . The Defendant contends that evidence of the victi m’s pregnancy would rebut medical evidence int roduce d at tri al. He explainsthat his failur e to fil e a motion ten days before thetrialcan be explai ned because the evidence was newly discovered and could not have been obtained through the exerc ise of due diligence
. See Tenn. R . Evid. 412(d)(1)(I).

We cannot agr ee. The D efend ant did not m ake th e mo tion in a timely
manne r. The Defendant argues t hat tri al counsel hear d this i nformation t he day before trial and could not conduct an i nvestigat ion. However, we see no reason why the Defendant was pr evented fr

om intervi ewing the State’s witnesses prior to trialto obtain a ddit ional informati on about the victi m. There are valid policy
reasons for the rule, especially i n this kind of case
. See State v. Gus sie W illis Vann , C.C.A. No. 03C01- 9408- CR-0 0279, B radley C ounty (T enn. C rim. App .,-11-

Knoxvill e, Sept. 18 , 1995); State v. Stephen Ray Stamps , C. C.A. No. 02C 01-9301-CC-00002, Henry County (Tenn. Crim. App., J ackson, March 2 , 1994), p erm. to appeal denied , (Tenn . 1994). A s the Sta te points o ut, th e proffered testimony of Brya n Atkinson di d not necessari ly indi cate that the pregnancy was due to sexualactivi ty pri or to this o ffense . Ther e is no indicat ion it would rebut the medi cal test imony. It is clear that if the vict im was pregnantat the time of trial, i t could not be considered as evidence of t he victi m’s sexual activity prior to the offense . The tri al was conducted more t han fifteen months after the offens e. Final ly, t he trialcourt made a fi nding that the informati on was an unsubstanti ated rumor and was irr elevant to the case beingtried. It is settled thatthe admissibi lity

of evidence and the scop e of cro ss-exa mina tion res ts within the sound discret ion of thetrialcourt whic h will be reversed only for an abuseof such discretion
. State v. Banks , 564 S.W.2d 947, 949 (Tenn. 19 78) . W e cannot conclude that the trial judg e abu sed h is discre tion, the refore , this issu e is without m erit.

III.
Next, the Defend ant contend s that the tri al co urt erred b y failing to suppress his statement as viol ating hi s Fifth Amendment ri gh ts because it was not freely

and voluntarily given. The Fift h Amendment to the Constit ution as applied to the States thr ough the Fourteenth Amendment ins ures that t he accused may not be compelled to be a witness againsthimself. The Tennessee Constitut ion also prov ides that a defendant cannot be compelled to give evidence against hi mself. Tenn. Const . art. I, § 9. The accused may waive these rights, b ut the w aiver must be made “v oluntari ly, knowi ngly, and i ntelli gently” and “the-12-

accused mus t be adequately a nd effectively appri sed of his rights and t he exercise of those rig hts mu st b e fully hon ored.” Miranda v. Arizona , 384 U. S. 436, 44 4, 467, 86 S.Ct. 16 02, 161 2, 1624 , 16 L.Ed .2d 694 ,706, 71 9 (1966 ).

The volunta riness test under the Tennessee Con stitution is more prote ctive of indivi dual right

s than the tes t under th e Fifth Am endm ent. State v. Stephenson , 878 S.W.2d 530, 544 (Tenn . 1994); see State v . Cr ump , 834 S.W.2d 265, 268 (Tenn. 199 2); State v. S mith , 834 S.W .2d 915 (Te nn. 1992). A waiver is valid if the suspec t is aware of the nature of t he right bei ng abandoned and the consequ ences of the dec ision to ab andon the right. Id. at 547. In assessing whether a waiver of

the right

was voluntar

y, we must look

at the totality of

the ci rcums tances surroun ding the re linquishm ent of the rig ht. State v. Benton , 759 S.W .2d 427 , 431-32 (Tenn . Crim. A pp. 198 8).
A hearing on themotion to suppr ess was held on August 15, 1995. The Defendant testified that he wasasked to co me to t he pol ice d epart ment. He was placed in a sm all i ntervi ew r oom. Lieute nant Snow and anoth er officer were presen t. Snow was we aring a u niform a nd his se rvice revolve r. He testif ied that the officers told him it wo uld be ea sier if he talke d with them. He stated t hat he
was nervous. He al so testi fied that he was not informed tha t he could have a lawyer but that he u nderstood h e could rem ain silent and leave freely.

On cross-examination, t he Defendant was p resented with the waiver of rights form bear ing h is s ignature. Headmitted t hat he read the form, understood thatit waived his righ t to an a ttorney and to rema in silent, and signed it . The interv iew was audio taped, includi ng Lieu t enant Snow informing the Defendant-13-

about his ri ghts. The Defendant test ified t hat he could not r emember his waivi ng his rights, but did acknowl edge the followin g portio n of the statem ents re ad to h im by the assistant district attorney : “‘An d you signed the waiver. And then I asked you after r

eading the statement that you understood y

our rights, were you willi ng to talk to me , and you said that yo u were. And si nce then we’ve h ad a
conve rsation ?’ And you sa id, ‘Yes , sir.’”

Lieutenant

Snow testified that h e r ead the waiver of right s form to the Defendant before he in tervi ewed him. He testified that he explained the form and the Defendant signed it. He deni ed that he forced or coerce d or promised leniency to obtain the Defen dant’s sta temen t.

The tri al co urt

over rul ed th e Defe ndant ’s mot ion to supp ress . Th e trial judge assumed that the Defendant had been seized , yet st ill determined that the Mirandarequire men ts had been met. In this appeal, t he State questi ons whether Miranda warning s were re quired if the Defen dant offer ed to com e to th e p olice departmentto be intervie wed. See St ate v. Anderson , 937 S.W.2d 851, 853 (Tenn. 1996). Nevert heless, t he offic ers proceed ed as if the interview we re custodialand rea d and e xplained to the De fendant his constit utional rights as required by Miranda
. The Defendant argues t hat his young age of eighte en and othercircumstances s houl d be weighed against the appearance t hat he volunta rily gave the statem ent. Howeve r, we cannot co nclude that the re cord support s a findin g that the Defendant was coerced or promised anythi ng that
w oul d rende r his sta teme nts invo luntary . Furthe rmor e, the D efend ant him self admitted that he understood that he was relinq uishing h is right to rem ain silent.-14-

When consideri ng the total ity of the circumstances, we can only concl ude thatthe trial court

did not err in denyi ng the Defendant’s motion to suppress. IV.
Finally, the Defend ant conten ds that the evidenc e was ins ufficient to support a verdict of gui lt. When an accuse d c hallenges t he suffi ciency of the convicti ng evidence, t he standard i s whether, af ter revi ewing the evi dence in the light most favora ble to th e pros ecutio n, any r ationa l trier of fac t could have found the essentialelements of t he crime beyon d a reaso nable d oubt. Jackson v. Virgin ia , 443 U.S. 307, 319 ( 1979 ) . Questions concerning thecredibil ity of the witnesses, the weight and value to be given the evidence, as well as al l factua l issues raised by the evide nce, are resolved by the trier of fa ct, not this co urt. State v. Pappas , 754 S .W .2d 62 0, 623 (Ten n. Crim . App. 1 987). N or ma y this court reweigh or r

eevaluate t h e eviden ce. State v. Cabbage , 571 S.W.2d 832, 835 (T enn. 19 78).

In orderto suppo rt a convictio n for rape of a child, the State was r equired to prove tha t there wa s an “un lawful sexu al pene trati on of a victi m by the defendantor the defend a nt by a vi ctim, i f such vic tim is l ess than thi rteen (13) years of age.” Tenn. Code Ann. § 39-13-522(a) . The testi mony at tri al showed thatthe victim, A.W., was t welve years old at t he time of t he offense. She testif ied that the Defend ant penet rated her vagina with his penis. The Defe ndan t’s statemen t corroborated h er testimony. The Defendant argues that A.W .’ s sta tements prior to and afte r the trial were i nconsistent with her t rial testimony. Howe ver, the assessment of c redibil ity of witnesses l ies with in the-15-

province of the ju ry. App arently , the jury resolve d this co nflict in favor of th e State.

The Defendant also challenges the convict ion fo r aggravatedsexual battery
. The S tate is requ ired to prov e the elem ents of the crime tha t t here i s “unlawfulsexual contact with a victi m by the defenda nt or the d efendant by a vi cti m” and tha t “[t]he victim is les s than thirte en (13) ye ars of ag e.” Tenn. Code Ann. § 39-13-504(a) (4). " ’Sexual contact’ i ncludes the i ntentionaltouching of the victi m's, the defendant's, or any other perso n's intimateparts, or the inten tional touching of the cl othing covering the i mmediate area of the victi m's, the defendant's, or any other person's intimate parts, if that intenti onal touchi ng can be reasonably con strued as bei ng for t he purpose of sex ual arousal or gratification.” Tenn . Cod e Ann . § 39-1 3-501 (6). "’Intim ate parts ’ incl udes the primary genital are a, groin, inn er thigh, b uttock or breas t of a hum an bein g.” Tenn. C ode Ann . § 39-13-501 (2).

The testimony at

trialrevealed t hat S.E. waseleven yea rs o ld at t he t ime the offense occur red. She test ified t hat the Defendantforced her ont o the floo r of the bathroom and fondled h er breas ts on to p of he r clothe s. This is clear ly suffic ientproofto establish the elem ents of ag gravated sexual ba ttery. Again, the Defendant challenges details of the tri al testi mony , sugges ting that there were incon sis tenciesregarding whet her S.E. screamed while she was i n the bathroom
. He also points to S.E,’ s frequent answers of “I don’t know” to questi ons about the details of the incident, thus making h er testimony suspect. Again, we must conclude that judg ments regarding c redibil ity of witnesse s are to be made by the jury. We will not disturb these co nclusion s on ap peal. Th is issue is w ithout me rit.-16- Accord ingly, we affirm the judgm ent of the tria l court.

____________________________________ DAVID H. WELLES , JUD GE

CONCUR:

___________________________________ JOE B. JONES, PRESI DING J UDGE

___________________________________ JOE G. RILE Y, J UDGE