### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE September 27,

2000 Session
STATE OF TENNESSEE v. WILLIAM TERR ELL HAMPTON
Appeal from the Criminal Court for Bradley County No. M-99-241 Caroll L. Ross, Judge

No. E2000-00582-CCA-R3-CD December 8, 2000

The defendant appe

als his conviction for aggrava ted sexual battery

, contending tha

t the evidence is insufficient

to support his conviction, the trial court erred in admitting evidence of a fresh compla

int, and the trial court erred in imposing a nine-year sentence . We affirm the defendant’s conviction and sentence. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

J OSEPH M. T IPTON , J., delivered the opinion of the court, in which J ERRY L. S MITH and J AMES C URWOOD W ITT , J R ., JJ., joined.
Ashley L. Ownby

, Cleveland, Tennessee, attorney for the appellant, William Terrell Hampton.

Paul G. Summers, Attorney General and Reporter; Mark A.Fulks, Assistant Attorney General; Jerry N. Estes, District Att

orney Gene

ral; and San dra N . Do nagh y, Assistant District A ttorney Ge

neral, for the appellee, State of Tennessee.

OPINION

The defe nda nt, Wil lia m Te rrel l Ha mpt on, app eal s as of r ight his con vic tio n by a j ury for aggravated

sexual battery

, a class B felony, for which he was sentenced as a Range I offender to nine yearsin the Department

of Correction. The defendant contends that (1) the evidence is insufficient to support his conviction because the victim’s testimony is the only evidence that supports the conviction; (2) the trial court erred in admitting evidence of a fresh complaint; and (3) the trial court erred in sentencing him by applying the enhancement factor of abuse of a position of private

trust.

At trial, the victim testified that on March25, 1998, she was seven years old and was living withthe defendant and his wife who are her uncle a nd aunt. She stated

that when she go

t homefrom school, the defendant was mowing the lawn, and her aunt was still at work. She said that she roller skated fo r a few minutes and then went inside to watch television. She said that while she wa s watching television, the defendant came into the room wearing a robe and asked her to sit on his lap.-2-

She stated that she did

so briefly b

ut then la id bac k down on the floor. She testified that the defendant also got on the floor , and his robe opened, exposing his private part. She said that the defendant rubbed her stomac

h smoothly with

his hand under her

shirt, touched her private part and her chest with his hand over her clothes, and softly rubbed his index finger on her lips. The victim identified her priva te part as being in the middle of her body where her legs a nd body meet. The victim stated that the defendant then c arried her to his

bedroom, where h

e laid her on his bed. She said that at this point,

she heard the basement door close and told the defendant that she was going to tell and that the defendant said, “No, don’t.” She testified that she then l eft the house with her aunt, and while they

were in the car

, she told her aunt what had happened. She stated that she also talked with Detective Quinn sometime later.
Bradley County Sherif

f’s Department D

etective Bria

n Qu inn testified as follows: He interviewed

t he defendant on May 13, 199 8. He read the de fendant his Miranda

rights, and the defendant signed a waiver. He asked the defendant to give

his version of what happened on March 25, 1998, a nd the defen dant wrote t he followi ng:

(March25 th ) Wednesday afternoon around 2:45, I was mowing the front yard. [The victim] came home from school. She put on her roller blade skates and went up the road (Woodfrin) and started to skate down the hill. I got on to her, afraid she would fall down. I didn’t finish the yard, and had her come inside to watch TV.
My wife was to com

e home at 5 :00 p.m. to

take her t o church. We sat down around4:00 p.m. to watch Rosie. I put on my bathrobe a nd got rea dy to take a shower. When I

got out of the show

er, my wife

and [the victim] had le

ft.

Detective Quinn then asked the defendant questions about what had happened on the day in

question. The defendant admitted that he drank t hree or fo ur beers that afternoon. When asked about the incident with the victim, the defendant stated, “Something happened, but I can’t remember.” The defendant said that he was we

aring a bath

ro be and that it “could have come open.” Also, the defendant admitted that he had rubbed the victim’s legs but denied touching her anywhere else. The defendant refused to write

another state

m ent to include this additional information. However, Detective Quinn made written notes of the defendant’s answers immediately a fter the interview.

The defendant testified as follows: The victim and her mother lived with him andhis wife
on different occa

sions for about fou

r years be

cause the victim ’s parents w ere having marital problems. A lthough the victim ’s mother would move out periodically

, the victim stay

ed at their house the majority of

the time. On March 25, 1998, he was mowingthe front ya rd when the victim
came home from school. He gave her permission to skate but thought that she would stay

in the area
near the carport. When he saw the victim skating in the street, he harshly told her to take the roller blades off and go inside, which she did. As he continued to mow the yard, he noticed one of the victim’s notebooks on a hedge below her bedroom window. He went inside and reprimanded

the victim, who was in the den watching television, for throwing her notebook out the window. Then, he went to his bedr oom, took off his clothes, put on a robe, and returned to the den to watch-3-

television. After a few minutes, the victim sat on the arm of the chair in which he was sitting. He patted the victim’s leg, a

ttem pting to reassure her. About twenty minutes later, he went to take a shower, and when he got out, the victim had left with his wife.

The defendant testified that he talke d to Detective Quinn about this incident and said, “ If something happened, I

don’t recall it.”

He said that he was not intoxicated that afternoon and that he did not touch the vic

tim an ywhere other than her leg. He admitted that his robe could ha ve opened but denied ever taking the victim into his bedroom.

I. SUFFICIENCY OF THE EVIDENCE

The defendant argues that the evidence supporting his conviction is insufficient because the victim’s t estimony was the only evidence of a crime presented by the state and no evidence corroborated

her testimony. The defendant asserts that more evidenc e than just

the victim’s testimonyshould be require d to safeguard de

fendants from being convicted based upon children’s lies. The state argues that the evidence is sufficient to support the defendant’s conviction. We agree with the state.

Our standard of revi

ew when the suff

iciency of

the evidence is q

uestioned on appeal 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 beyond a reasonable doubt.” Jackson
v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). This means that we do not reweigh the evidence but presume that the j ury has res olved all conflic

ts in the testimony

and drawn all reasonable

inferences from the evidence in favor of the state. See State v. Sheffield , 6 76 S.W.2d 542, 547 (Tenn. 198

4); State v. Ca bbage , 571 S.W.2d 832, 835 (Tenn. 1978).

In the present case, the defendant was convicted of aggravated

sexual battery

against a victim less than thirteen y

ears old. To esta

blish this offense,

the state was req

uired to prove that

“there was unlawful sexual contact with the victim by the defendant” and that the victim was less than thirteen yearsold. Tenn. Code Ann . § 39-13-504(a) (1). “Sexual conta ct” is “the intentional touching of the victim’s

. . . intimate parts, or the intentional touching of the clothing covering the immediate area of the victim’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).

The victim’s testimony, when viewed in the light most favorable to the state, reveals that the defend ant took off his clothes, put on a robe, and went to watch television with the vict im. Th e defendant’s r obe opened, exposing his private part. The defendant then intentionally touched the victim’s lips, stomach, chest, legs, an d area between

the legs. The vic

tim was seven y

ears old when this occurred. From this evidence a rational jury could have found the elements of aggravated sexual battery beyond a rea

sonable doubt.

The defendant arg

ues that we should r

equir e some ev idence other than the child victim’s testimonyto support his conviction for aggravated sexual battery. The defendant asse

rts that this is-4-

especially necessary

because the child victim’s reliability was questionable, noting that the victim had a motive for lying because he reprimanded her for skating in the street and for throwing her notebook out the window. The defendant supports his argument with cases holding that a conviction may not be based solely upon the uncorroborated testimony of an accomplice. See , e.g. , Henley v. State , 489 S.W.2d 53, 55-56 (Tenn. Crim. App. 1972). Ho wev er, we note that the legislature has provided that when a sex abuse victim is less than thirteen years old, “such victim shall, regardless of consent, not

be considered to

be an accomplice

to such sexual pene

tration or sexual co

nduct, and
no corroboration of such alleg ed vic tim’s testimony shall be require

d to secure a con

viction if corroborationis necessary solely beca use the alleged victim consented.” Tenn. Code Ann.§ 40-17- 121. This statute is controlling. The evidence is sufficient to convict the defendant.

II. FRESH COMPLAINT

The def endant argues that the

trial court erre

d in admitting evid

ence of a fresh

complaint. The two statements about which the defendant complains are (1 ) the victim’s state ment that she told her aunt what happened and

(2) Detective Quinn’s statement that the defendant came into the office relative to acomplaint that he had received. The state argu es that the two stat

ements were not f

resh complaint.

The fresh c omplaint doctrine t raditionally

“allowed a victim’s out-of-court statements regarding a sexual offense to be introduced at trial to corroborate the victim’s in-court testimony.” Statev. Speck , 944 S.W.2d 5 98, 601 (Tenn . 1997) (cit ing Phillips v. State , 28 Tenn. 246, 250-51 (1848)). “Under Phillips , the fact of the v ictim’s complaint,

as well as the deta

ils, was admissible during the prosecution’s case in chief.” Speck , 944 S.W.2d at 601. The Tennessee Supreme Court modified this doctrine in State v. Kendricks , holding that the fact of an adult victim’s complaint is admissible

during the prosecution’s case-in-chief, but the details of the incident ar

e not admissible unless and until the victim’s credibility is attacked. 891 S.W.2d 597, 603 (Tenn. 1994) . One year later in State v. Livingston , the supreme cou rt held that “in ca

ses where the vic

tim is a child, neither the fact of the complaint nor the details of the complaint to a third party is admissible.” 907 S.W.2d 392, 395 (Tenn. 1995). The co urt noted, however, that such evidence may be admissible under a hearsay exception or the prior consistent statement rule. Id.

In the present case, the defendant argues that the two statements were improperly admitted
as f resh c omplaint. The defendant argues that the victim’s statement that she told her aunt what happened and that Detectiv

e Quinn’s stateme

nt that the defend

ant came into

the office relative to a complaint that he had received

were improperly admitted. The first statement is the child victim’s testimonythat she made a complaint to a third party . We agree with t he defendant tha

t this is a fresh complaint and should have been excluded under Li vi ngston . The second statement is Detective Quinn’s testimony that a complaint was received. The statement, however, does not identify

who made the complaint. To the extent that it can be inferred that the child victim made th

e complaint, this statement is

a fresh complaint and should have been excluded under Livingston . Without this inference, the statement that a complaint was received i s irrelev ant and, thus, inadmissible. See Tenn. R. Evid. 401, 402. The statement expla

in ing the reason why Detective Quinn was-5-

interviewing the defendant – without the inference that the child victim made the complaint – does not“have any tendency to make the e xistence of any fact that is of consequence to the determination of the action more pr

obable or less probable than it would be without the evidence.” Tenn. R. Evid. 401. Having concluded that the trial court improp erly allowe

d into evidence the

two statements,
we must determine whether the admission of the statements was reversible error. First, the victim’s statement was brief and contained no details. The statement did not recount her testimony, and the victim’s aunt did not testify about what the victim told her. Second, the detective’s statement was brief and did not provide any details of the complaint. Indeed, the statement did not even identify who made the complain

t. In fact, the jury cou

ld have inferred that the victim made the complaint from the fact that the d

efendant was on t

rial. In contr

ast to the two state

ments, the victim testified in detail about the defendant touching her. The jury obviously accredited he r testimony over that of the defendant’s. We cannot conclude that the admission of

the fact that the victim made a complaint to a third party more probably than not aff ected the outcome of the trial. T.R.A.P. 36(b).

III. SENTENCING The defendant contends that the trial court imposed an excessive sentence. He argues that the cou rt i mpr ope rly sentenced hi m by applying the enhance ment factor of abuse of a position of private trust. See

Tenn. Code Ann. § 40-35-114(15). The state argues that the enhancement factor was properly applied.

When a defendant

appealsthe length, range, or manner of service of a sentence imposed by the trial court, this court

conducts a de novo review of the re cord with a presumption that the trial court’s determinations are correct. Tenn. Code Ann. § 40-35-401(d). The presumption of correctness

is “conditioned upon the affirmative showing in the record that the trial court considered the sentencing principles and all relevant facts and circumstances.” Statev. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). The burden of showing that

the sen ten ce i s im pro per i s up on t he ap peal ing p art y. Tenn. Code Ann. § 40-35- 401(d), Sentenci

ng Commissio

n C omments. However, if the record shows that the trial cour

t faile d to consider the sentencing principles and all relevant facts and cir cum sta nces , th en re vie w of the sen ten ce i s pu rel y de novo

. Ashby , 823 S.W.2d at 169.

The defendant was sentenced as a Range I of fender, for whi

ch the applicable

range for a c

lass B felony is eight to twelve years. Tenn. Code Ann. § 40-35-112(a)(2). The presumptive sentence for a class B felony is the

minimum in the range when there are no enhancement or mitigating fa ctors present. Tenn. Code Ann. § 40-35-210(c). Procedurally , the trial court is

to increase

the sentence within the range based upon the existence of enhancement factors and then reduce the sentence as appropriate

for any mitigating factors. Tenn. Code Ann. § 40-35-210(d), ( e). The weight to be afforded an existing facto

r is left to the tria

l court’ s discreti on so long as it complies with the purposes and principles of the 1989 Sentencing Act and its findings are adequately supported by

the record. Tenn. Code Ann. § 40-35-210, Sentencing CommissionComments; Ashby , 823 S.W.2d at 169.-6-

In the present case, the presumption of correctness ap

plies because the

record revea

ls that the trial court considered

all the relevant facts and circumstancesas well as sentencing principles. The trial court reviewed the pre-sentence repo rt, hea rd the defendant’s testimony, and considered arguments

of counsel. The trial court started at the minimum sentence of eight years but incre ased the sentence to nine years after findi ng that on e enhancement factor applied, that the defendant abuseda position of private trust. Tenn. Code Ann. § 40-35-114(15). The defendant conte sts this finding, arguing that

there was no evidence to support the finding of this enhancement factor. We disagree. A position of privat e trusts exists when the defendant “formally or informally stood in a relationship

to the vic tim that promoted confidence, reliability, or faith.” State v. Kissinger , 922 S.W.2d 482, 448 (Tenn. 1996). Moreover, “[w]here the ad ult perpetrat or and minor victim are members of the same househ old, the adult occu

pies a position of ‘presumpti ve private trust’ with respect to the minor.” State v. Gutierrez , 5 S.W.3d 641, 645 (Te nn. 1999); see also State v. Carico , 968 S.W. 2d 280 , 286 ( Tenn. 1998) . In the present case , the victim, the de

fendant’s niece

, lived with the defendant and his wife off and on for the majority of the four yea rs before thecommission of the offense. The defendant acknowledges this fact but argues that he

was not in a paren

tal relationship withthe victim because he did not discipline or supervise the victim. The defendant stated that he left those responsibilities for his wife. How ever, the reco rd reveals that on the day the battery occurred, when the seven-year-old victim returned from school, the def e ndant was the only

adult present at his house. Upon the victim’s request, the defendant gave her permission to skate. When the defendant saw the victim skating in the road, he told her to stop skating and go inside the house. The defendant also reprimanded the victim for throwing her notebook outof a window. Moreover, at the sentencing hearing, the defendant testified that

I would just like to say that [the vict im]’s my nieceand my wife’s niece. We’ve raisedher since

she was a c

hild. We lov e her very much and I would never do anything to harm her. . . . She wa s under our care at the time becau

se her parents were unable to take care of her, and we were just providing a home f or her.

These facts and circumstances as well as the defendant’s statement reflect that the de fendan t, contrary to his assertion, was in a family supervisory relationship with the victim. Certainly , we cannot say that the defendant

has overcome

his presumptive position of private trust. The defendant has not met his burden of showing that the trial court improperly found that he occupied a position of private trust, whi

ch was abused whe

n he committed the p

resent offense

. Accordingl y, we conclude that the trial court properly applied this enhancement factor in imposing a nine-y ear sentence.

IV. CONCLUSION Based upon the foregoing and the record as a whole, we affirm the defendant’s conviction and sentence.

___________________________________ JOSEPH M. TIPTON, JUDGE