FILED

November 20, 1997

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

SEPTEMBER SESSION, 1997

STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9610-CC-00359

)

Appellee, )

)

) HENRY COUNTY

VS. )

) HON. JULIAN P. GUINN

TERRELL DION COWANS, ) JUDGE

)

Appellant. ) (Rape of a Child & Aggravated

) Sexual Battery)

ON APPEAL FROM THE JUDGMENT OF THE

CIRCUIT COURT OF HENRY COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

GUY T. WILKINSON JOHN KNOX WALKUP

District Public Defender Attorney General and Reporter

P.O. Box 663

117 Forrest Avenue North EUGENE J. HONEA

Camden, TN 38320 Assistant Attorney General

425 5th Avenue North

Nashville, TN 37243

ROBERT “GUS” RADFORD

District Attorney General

P.O. Box 686

Huntingdon, TN 38344

OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
1

 It is a po licy of th is Co urt to r efer to child sex abus e victim s by their initia ls only.

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OPINION

The Defendant, Terrell Dion Cowans, was convicted of one count of rape

of a child and one count of aggravated sexual battery. He was sentenced as a

Range I, standard offender to fifteen (15) years for the rape of a child conviction

and eight (8) years for the aggravated sexual battery conviction, to be served

concurrently. The Defendant appeals his convictions, raising four issues: (1)

That the trial court erred by failing to grant the Defendant’s motion for a new trial

based on the newly discovered evidence that one of the victims recanted her

testimony; (2) that the trial court erred by not permitting defense counsel to

question one of the victims about an alleged pregnancy by another man; (3) that

the trial court erred by failing to suppress statements made by the Defendant;

and (4) that the evidence was insufficient to support a verdict of guilt for both

convictions. We affirm the judgment of the trial court.

On June 27, 1994, A.W. and S.E.1, who were cousins, were at A.W.’s

house in Paris, Tennessee. That morning, the two girls decided to walk to A.W.’s

uncle’s house nearby to get some money for food. Before they left, either the

Defendant called A.W . or A.W. called the Defendant on the telephone. She had

met him at Ralph’s Golf. At that time, A.W. was twelve (12) years old, S.E. was

eleven (11) years old, and the Defendant was eighteen (18) years old. The

Defendant told A.W. that he wanted her to go to another girl’s house and knock

on her door for him. A.W. did not know who the other girl was.
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A.W. took S.E. with her to Bryan Atkinson’s house because the Defendant

was going to be there to tell her where the other girl lived. S.E. was unaware of

the content of the conversation between A.W. and the Defendant and A.W. told

her they were taking a shortcut to her uncle’s house. A.W. and S.E. went to

Atkinson’s house where the Defendant was waiting. A.W. pulled S.E. into the

house. They all talked together in Atkinson’s bedroom. The Defendant went into

the bathroom and told A.W. to go with him because he needed to talk to her. The

bathroom door was shut and the light was on. The Defendant told her that he

liked S.E. and that he wanted to talk to S.E. The Defendant was wearing pants

and A.W. was wearing shorts and a shirt. S.E. thought she heard a scream while

A.W. was in the bathroom with the Defendant, but she was not sure.

A.W. left the bathroom and told S.E. that the Defendant wanted to talk to

her. The Defendant told S.E. to “come here” and she complied. The Defendant

pulled S.E. into the bathroom. A.W. sat in Atkinson’s bedroom. The Defendant

appeared to be wearing a pair of jogging pants and S.E. was wearing blue jean

shorts and a shirt. The Defendant pushed S.E. down on the floor. He held her

arms down above her head. The Defendant pulled her clothes off or down. S.E.

could not recall whether the Defendant’s clothes were off because the room was

dim. The Defendant fondled S.E.’s breasts over her shirt. She could not

remember whether the Defendant exposed or touched her with his penis. S.E.

told him to “let me up” and the Defendant allowed her to get up and put on her

clothes. The Defendant said something about “still friends” and S.E. walked

away. She left the bathroom and went outside on the porch. 
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A.W. then went into the bathroom to talk with the Defendant. He told her

he wanted to have sex. The door was shut. A.W . replied that she had a

boyfriend and did not want to have sex with the Defendant. The Defendant

persisted and got closer to A.W. He pushed her either against the sink or the

toilet and opened her shorts. A.W. said no but the Defendant was holding her

hands. He pulled down the shorts and they fell down farther. The Defendant

exposed his penis and then penetrated A.W.’s vagina with part of his penis. A.W .

kept saying no and the Defendant withdrew and ejaculated. The Defendant

apologized and said he “got carried away.” A.W. was crying and left the

bathroom. She left and caught up with S.E. who was already walking down the

alley behind the house.

A.W. asked S.E. if something happened to her and S.E. said nothing had

happened. Later that day, S.E. told her stepmother what the Defendant had

done. Her stepmother and father took her to the hospital emergency room later

that evening. A.W. also went to the hospital. Carolyn Gore of the Department of

Human Services’ child abuse investigation division interviewed both victims. Dr.

Debra Sue Selby conducted pelvic exam inations on both victims and rape kits

were collected. Dr. Selby examined S.E. and found redness at the entrance of

the vagina as well as superficial lacerations at three areas as well as on the right

labia minora. The hymen was red but intact. Dr. Selby examined A.W. and

found a discharge from the vagina and found that the hymen had a small amount

of tissue left, with ragged edges and a very large opening rather than a small

opening which is expected. There was purulent discharge at the cervix. Dr.

Selby noted that damage to the hymen could be due to causes other than vaginal
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penetration, such as blunt trauma. Dr. Selby did not have the test results at trial,

but recalled that the presence of sperm was not detected in either victim.

Lieutenant Eddie Snow, an investigator for the Paris Police Department,

was assigned to the case. He interviewed Bryan Atkinson and then decided to

contact the Defendant. Lieutenant Snow telephoned the Defendant and

requested that he come to the police department. The Defendant came and

spoke with Snow, which conversation was initially not recorded. Lieutenant Snow

then gave the Defendant Miranda warnings before he agreed to make an audio

taped statement. In that statement, the Defendant admitted that he was at Bryan

Atkinson’s house when the victims were there. He asked A.W. to have sex with

him and she agreed. They went into the bathroom and A.W. was positioned on

the toilet. He stated that A.W . pulled her shorts down and he proceeded to

penetrate her vaginally, but only partially. He stated that he then asked A.W. how

old she was and she said she was thirteen (13). He withdrew, but denied that he

ejaculated. 

The Defendant denied having any sexual contact with S.E. He stated that

he was in a back room alone with her for a brief time and he asked whether she

had a boyfriend and how old she was. He stated that S.E. said she was thirteen.

He denied touching S.E. or exposing his penis or penetrating her with his penis

or his fingers.

The Defendant was indicted on July 5, 1995, for one count of rape of a

child and one count of aggravated sexual battery. Defense counsel moved to

suppress the Defendant’s statement, which was denied by the trial court after a
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hearing on the motion held on August 15, 1995. He was tried by a Henry County

jury on November 8, 1995, and found guilty on both counts. The Defendant was

sentenced to fifteen (15) years for the rape of a child conviction and eight (8)

years for the aggravated sexual battery conviction. 

I.

In his first issue in this appeal, the Defendant argues that the trial court

erred by failing to grant a new trial based on newly discovered evidence. In his

motion for new trial the Defendant alleged that there was newly discovered

evidence in the form of A.W .’s recantation of her testimony at trial. It was

submitted as an affidavit for consideration at the hearing on the motion. The

contents of the affidavit in pertinent part is as follows:

Terrell Dion Cowans and I, [A.W.], are friends. He was talking to me

about another girl on that day. He did not rape me, he did not even

touch me. When night came the police came and got me and took me

to the hospital, I was shocked. Terrell and I did not have intercourse.

He did not rape me. Carolyn Gore told us that the test showed I had

had intercourse. I tried to tell Ms. Gore, the social worker, that it did not

happen and she would not listen. Randy Shankle heard my

conversation with Ms. Gore. We were at my house when this

conversation took place. She said it was too late, the trial is over.

. . .

I swear that I am telling the truth and I want to do the right thing. I have

told my grandmother, my uncle, and my friends that he did not do

anything to me. Mrs. Gore kept on pressuring me at the Emergency

Room. She told me what to say. I even told Mrs. Gore after the trial

that I didn’t think it was fair and she said it was too late.

. . . .

The Defendant asserts that this newly discovered evidence entitles him to

a new trial. The decision to grant or deny a new trial on the basis of newly
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discovered evidence is a matter which rests in the sound discretion of the trial

court. State v. Goswick, 656 S.W.2d 355, 358 (Tenn. 1983). To acquire a new

trial as of right based on newly discovered evidence, a defendant must

demonstrate (1) reasonable diligence in seeking the newly discovered evidence;

(2) materiality of the evidence; and (3) that the evidence will likely change the

result of the trial. State v. Nichols, 877 S.W.2d 722, 737 (Tenn. 1994); Goswick,

656 S.W.2d at 358-360. A new trial will not be granted on the basis of newly

discovered evidence when the effect is merely to impeach a witness’ testimony

at trial unless the impeaching evidence is so crucial to the defendant’s guilt or

innocence that its admission would change the outcome of the case. State v.

Singleton, 853 S.W .2d 490, 496 (Tenn. 1993); State v. Rogers, 703 S.W.2d 166,

169 (Tenn. Crim. App. 1985).

At the hearing on the motion for a new trial, no oral testimony was

presented, and the trial court resolved the issue based upon the affidavit. 

Therefore, the rule vesting controlling discretion in the trial judge does not govern

on appeal, and whether the requirements have been fulfilled becomes a question

of law. Goswick, 656 S.W .2d at 359; State v. Holt, 801 S.W.2d 518, 521 (Tenn.

Crim. App. 1990). In refusing to grant a new trial, the trial judge stated on the

record that:

[Y]ou’ve got the obvious problem that arises from time to time of the socalled recanting victim. And it was a subject that could have easily been

explored had it been done at the time of trial. As a matter of fact, the

law says that it should have been done at that time. And having once

taken the sworn testimony that law is very loathe to now take

somebody’s recantation by swearing that they swore to a lie, particularly

when it could have been taken care of appropriately as is required by

law at the time of the trial.
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We agree that the Defendant had an opportunity at trial to cross-examine

the victim to determine the veracity of her testimony. Even if we were to assume

that the Defendant could not have obtained the new information with reasonable

diligence, we do not believe a new trial was warranted. Obviously, the

accusations made by the victim were highly material to the case. Yet, no

recantation of the victim’s testimony can alter the fact that the Defendant himself

admitted to penetrating the victim. Circumstantial evidence obtained from the

medical examination also corroborated the allegation that a penetration occurred.

Finally, all of the persons present when the act occurred testified or made

statements that the Defendant and A.W. were in the bathroom together.

Therefore, we do not believe that evidence that the victim recanted would likely

change the result of the trial. This issue is without merit.

II.

As his second issue, the Defendant argues that the trial court erred by not

permitting defense counsel to question the victim, A.W., about her alleged

pregnancy by another man. The record reflects that defense counsel raised the

issue after the close of the proof. Defense counsel informed the trial judge that

Bryan Atkinson told her that A.W. was pregnant. Bryan Atkinson testified in a

jury-out hearing that “I might have heard some talk at school” approximately “two

or three months ago.” The offense in question occurred on June 27, 1994, and

the trial was conducted on November 8, 1995. The trial court concluded that the

information was merely a rumor as the witness admitted. He found that the

evidence did not comport with the requirements of Rule 412 of the Tennessee
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Rules of Evidence. Finally, the trial judge stated that the allegation was irrelevant

and immaterial to the prosecution being conducted.

The Defendant argues that under Rule 412 of the Tennessee Rules of

Evidence, he should have been allowed to question the victim at trial regarding

specific instances of conduct under an exception for newly discovered evidence.

Tenn. R. Evid. 412(d)(1)(I). The State counters that Rule 412 does not apply to

the offense of rape of a child. The language of Rule 412 states that it applies

when “a person is accused of an offense under T.C.A. §§ 39-13-502 [aggravated

rape], 39-13-503 [rape], 39-13-504 [aggravated sexual battery], 39-13-505

[sexual battery], 39-13-507 [spousal sexual offenses], or the attem pt to commit

any such offense.” Tenn. R. Evid 412. Rape of a child, Tennessee Code

Annotated section 39-13-522, is not one of the offenses enumerated. See also

State v. Jason Adam Brinkley, Jr., A.K.A. “Bubba”, C.C.A. No. 01C01-9307-CC00231, Sumner County (Tenn. Crim. App., Nashville, July 14, 1995)(Rule 412

held inapplicable to statutory rape). However, we find that there is a distinction

between Brinkley and the case at bar.

We first note that the offense of rape of a child was enacted by the General

Assembly in 1992 and codified as Tennessee Code Annotated section 39-13-

522. See Tenn. Pub. Acts 1992, ch. 878 § 1. Prior to that, the offense now

embodied in section 39-13-522 was contained within the offense of aggravated

rape before it was recodified. See Tenn. Code Ann. § 39-13-502(a)(4) (Supp.

1991). Rule 412 of the Tennessee Rules of Evidence was established in 1991

to replace the rape shield statute contained Tennessee Code Annotated section

40-17-119. See Tenn. R. Evid. 412, Advisory Commission Comment. The
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comment contains no reference to rape of a child. Although we cannot determine

why rape of a child has been om itted, we believe that Rule 412 should govern

evidentiary rulings for the offense, rather than the general application of Rule

404(a)(2). This interpretation avoids the illogical result that would otherwise

occur in this case. Here, the evidence regarding S.E., the victim of the

aggravated sexual battery would be governed by Rule 412 because that offense

is one of the enumerated offenses under the rule. However, evidence regarding

A.W., the victim of the rape of a child, would be admitted only by way of Rule

404(a)(2).

Therefore, we shall consider the Defendant’s argument that the evidence

should have been admitted under Rule 412. The Defendant argues that Rule

412 sets out the procedure for questioning a victim about specific instances of

conduct. See Tenn. R. Evid 412(c)(4)(I). The Defendant contends that evidence

of the victim’s pregnancy would rebut medical evidence introduced at trial. He

explains that his failure to file a motion ten days before the trial can be explained

because the evidence was newly discovered and could not have been obtained

through the exercise of due diligence. See Tenn. R. Evid. 412(d)(1)(I).

We cannot agree. The Defendant did not make the motion in a timely

manner. The Defendant argues that trial counsel heard this information the day

before trial and could not conduct an investigation. However, we see no reason

why the Defendant was prevented from interviewing the State’s witnesses prior

to trial to obtain additional information about the victim. There are valid policy

reasons for the rule, especially in this kind of case. See State v. Gussie Willis

Vann, C.C.A. No. 03C01-9408-CR-00279, Bradley County (Tenn. Crim. App.,
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Knoxville, Sept. 18, 1995); State v. Stephen Ray Stamps, C.C.A. No.

02C01-9301-CC-00002, Henry County (Tenn. Crim. App., Jackson, March 2,

1994), perm. to appeal denied, (Tenn. 1994). As the State points out, the

proffered testimony of Bryan Atkinson did not necessarily indicate that the

pregnancy was due to sexual activity prior to this offense. There is no indication

it would rebut the medical testimony. It is clear that if the victim was pregnant at

the time of trial, it could not be considered as evidence of the victim’s sexual

activity prior to the offense. The trial was conducted more than fifteen months

after the offense. Finally, the trial court made a finding that the information was

an unsubstantiated rumor and was irrelevant to the case being tried. It is settled

that the admissibility of evidence and the scope of cross-examination rests within

the sound discretion of the trial court which will be reversed only for an abuse of

such discretion. State v. Banks, 564 S.W.2d 947, 949 (Tenn. 1978). We

cannot conclude that the trial judge abused his discretion, therefore, this issue is

without merit.

III.

Next, the Defendant contends that the trial court erred by failing to

suppress his statement as violating his Fifth Amendment rights because it was

not freely and voluntarily given. The Fifth Amendment to the Constitution as

applied to the States through the Fourteenth Amendment insures that the

accused may not be compelled to be a witness against himself. The Tennessee

Constitution also provides that a defendant cannot be compelled to give evidence

against himself. Tenn. Const. art. I, § 9. The accused may waive these rights,

but the waiver must be made “voluntarily, knowingly, and intelligently” and “the
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accused must be adequately and effectively apprised of his rights and the

exercise of those rights must be fully honored.” Miranda v. Arizona, 384 U.S.

436, 444, 467, 86 S.Ct. 1602, 1612, 1624, 16 L.Ed.2d 694,706, 719 (1966). 

The voluntariness test under the Tennessee Constitution is more protective

of individual rights than the test under the Fifth Amendment. State v.

Stephenson, 878 S.W.2d 530, 544 (Tenn. 1994); see State v. Crump, 834

S.W.2d 265, 268 (Tenn. 1992); State v. Smith, 834 S.W.2d 915 (Tenn. 1992).

A waiver is valid if the suspect is aware of the nature of the right being

abandoned and the consequences of the decision to abandon the right. Id. at

547. In assessing whether a waiver of the right was voluntary, we must look at

the totality of the circumstances surrounding the relinquishment of the right.

State v. Benton, 759 S.W .2d 427, 431-32 (Tenn. Crim. App. 1988). 

A hearing on the motion to suppress was held on August 15, 1995. The

Defendant testified that he was asked to come to the police department. He was

placed in a small interview room. Lieutenant Snow and another officer were

present. Snow was wearing a uniform and his service revolver. He testified that

the officers told him it would be easier if he talked with them. He stated that he

was nervous. He also testified that he was not informed that he could have a

lawyer but that he understood he could remain silent and leave freely.

On cross-examination, the Defendant was presented with the waiver of

rights form bearing his signature. He admitted that he read the form, understood

that it waived his right to an attorney and to remain silent, and signed it. The

interview was audio taped, including Lieutenant Snow informing the Defendant
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about his rights. The Defendant testified that he could not remember his waiving

his rights, but did acknowledge the following portion of the statements read to him

by the assistant district attorney : “‘And you signed the waiver. And then I asked

you after reading the statement that you understood your rights, were you willing

to talk to me, and you said that you were. And since then we’ve had a

conversation?’ And you said, ‘Yes, sir.’”

Lieutenant Snow testified that he read the waiver of rights form to the

Defendant before he interviewed him. He testified that he explained the form and

the Defendant signed it. He denied that he forced or coerced or promised

leniency to obtain the Defendant’s statement.

The trial court overruled the Defendant’s motion to suppress. The trial

judge assumed that the Defendant had been seized, yet still determined that the

Miranda requirements had been met. In this appeal, the State questions whether

Miranda warnings were required if the Defendant offered to com e to the police

department to be interviewed. See State v. Anderson, 937 S.W.2d 851, 853

(Tenn. 1996). Nevertheless, the officers proceeded as if the interview were

custodial and read and explained to the Defendant his constitutional rights as

required by Miranda. The Defendant argues that his young age of eighteen and

other circumstances should be weighed against the appearance that he

voluntarily gave the statem ent. However, we cannot conclude that the record

supports a finding that the Defendant was coerced or promised anything that

would render his statements involuntary. Furthermore, the Defendant himself

admitted that he understood that he was relinquishing his right to remain silent.
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When considering the totality of the circumstances, we can only conclude that the

trial court did not err in denying the Defendant’s motion to suppress.

IV.

Finally, the Defendant contends that the evidence was insufficient to

support a verdict of guilt. When an accused challenges the sufficiency of the

convicting evidence, the standard is whether, after reviewing the evidence 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. Jackson v.

Virginia, 443 U.S. 307, 319 (1979). Questions concerning the credibility of the

witnesses, the weight and value to be given the evidence, as well as all factual

issues raised by the evidence, are resolved by the trier of fact, not this court.

State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). Nor may this

court reweigh or reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832,

835 (Tenn. 1978). 

In order to support a conviction for rape of a child, the State was required

to prove that there was an “unlawful sexual penetration of a victim by the

defendant or the defendant by a victim, if such victim is less than thirteen (13)

years of age.” Tenn. Code Ann. § 39-13-522(a). The testimony at trial showed

that the victim, A.W., was twelve years old at the time of the offense. She

testified that the Defendant penetrated her vagina with his penis. The

Defendant’s statement corroborated her testimony. The Defendant argues that

A.W.’s statements prior to and after the trial were inconsistent with her trial

testimony. However, the assessment of credibility of witnesses lies within the
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province of the jury. Apparently, the jury resolved this conflict in favor of the

State.

The Defendant also challenges the conviction for aggravated sexual

battery. The State is required to prove the elem ents of the crime that there is

“unlawful sexual contact with a victim by the defendant or the defendant by a

victim” and that “[t]he victim is less than thirteen (13) years of age.” Tenn. Code

Ann. § 39-13-504(a)(4). "’Sexual contact’ includes the intentional touching of the

victim's, the defendant's, or any other person's intimate parts, or the intentional

touching of the clothing covering the immediate area of the victim's, the

defendant's, or any other person's intimate parts, if that intentional touching can

be reasonably construed as being for the purpose of sexual arousal or

gratification.” Tenn. Code Ann. § 39-13-501(6). "’Intimate parts’ includes the

primary genital area, groin, inner thigh, buttock or breast of a human being.”

Tenn. Code Ann. § 39-13-501(2).

The testimony at trial revealed that S.E. was eleven years old at the time

the offense occurred. She testified that the Defendant forced her onto the floor

of the bathroom and fondled her breasts on top of her clothes. This is clearly

sufficient proof to establish the elements of aggravated sexual battery. Again, the

Defendant challenges details of the trial testimony, suggesting that there were

inconsistencies regarding whether S.E. screamed while she was in the bathroom.

He also points to S.E,’s frequent answers of “I don’t know” to questions about the

details of the incident, thus making her testimony suspect. Again, we must

conclude that judgments regarding credibility of witnesses are to be made by the

jury. We will not disturb these conclusions on appeal. This issue is without merit.
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Accordingly, we affirm the judgm ent of the trial court.

____________________________________

DAVID H. WELLES, JUDGE

CONCUR:

___________________________________

JOE B. JONES, PRESIDING JUDGE

___________________________________

JOE G. RILEY, JUDGE