This court identifies minor sexual abuse victims by their initials. 1

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs October 25, 2005

STATE OF TENNESSEE v. JOSEPH VERMEAL

Direct Appeal from the Circuit Court for Warren County

No. F-8405 Larry B. Stanley, Jr., Judge

No. M2005-00568-CCA-R3-CD - Filed December 28, 2005

The appellant, Joseph Vermeal, was convicted by a jury in the Warren County Circuit Court of

attempted aggravated sexual battery and was sentenced to four years incarceration in the Tennessee

Department of Correction. On appeal, the appellant complains that the evidence is insufficient to

support his conviction, the trial court erred in refusing to permit his expert witness to testify, and the

trial court erred in imposing consecutive sentencing. Upon our review of the record and the parties’

briefs, we affirm the judgment of the trial court. 

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed.

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which DAVID G. HAYES and JOHN

EVERETT WILLIAMS, JJ., joined.

Phillip T. Clemons, McMinnville, Tennessee, for the appellant, Joseph Vermeal.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General;

Dale Potter, District Attorney General; and Thomas J. Miner, Assistant District Attorney General,

for the appellee, State of Tennessee.

OPINION

I. Factual Background

The appellant was indicted by the Warren County Grand Jury on one count of aggravated

sexual battery. In the light most favorable to the State, the proof adduced at trial revealed that on

August 26, 2000, Pioneer Baptist Church sponsored a block party in the parking lot of the nearby

Country Place Apartments. After the party ended, the victim, N.O., who was seven years old, rode 1

her bicycle with several friends. The victim was dressed in blue jeans and a Tweety Bird shirt. One

of the other children told the victim that they could obtain ice cream at the appellant’s apartment.
J.P. was also a victim of sexual abuse by the appellant. See State v. Joseph Vermeal, No.

2

M2004-00046-CCA-R3-CD, 2005 WL 1000237, at *1 (Tenn. Crim. App. at Nashville, Apr. 29, 2005).

2

The children went to the appellant’s apartment and found that the appellant was at home, sitting on

the porch. After receiving the appellant’s permission, the children went inside and got popsicles

from the appellant’s freezer. At the appellant’s request, the children ate their popsicles on the

appellant’s front porch instead of inside his apartment. Afterward, the children went inside the

appellant’s apartment to watch television and jump on the appellant’s waterbed. 

Soon, all of the children except the victim and J.P., another female child, went home. The 2

victim remained in the appellant’s living room for thirty minutes to an hour, watching cartoons on

cable television, while J.P. went in the appellant’s bedroom to jump on the bed. The appellant joined

J.P. in the bedroom. Some time after the appellant went into the bedroom, the victim was standing

by the front door looking outside when she felt someone touch her right buttock. During her

testimony at trial, the victim demonstrated how she was touched. The victim believed that J.P. had

touched her, but when she turned around she saw the appellant. The appellant slid his hand

underneath her shirt and touched her breasts. She explained that when he touched her, “he . . .

pressed down.” The appellant removed his hand, got a beer from the kitchen, and returned to the

bedroom. 

The victim was afraid that she would get into trouble for being in the appellant’s apartment

and for letting him touch her. She remained in the apartment for a few minutes then went outside.

She rode her bike for ten minutes before being stopped by “Uncle E.J.,” Elvis Joseph Kersey.

Kersey told the victim that one of his friends had seen her in the appellant’s apartment. The victim

did not tell Kersey what the appellant had done because she was embarrassed and did not want to

discuss the incident. Kersey and the victim went to find the victim’s dad, Howard Orcutt. Both

Kersey and Orcutt lived in Country Place Apartments.

When the victim and Kersey found Orcutt at his apartment, Kersey told Orcutt that the victim

had been in the appellant’s apartment. Orcutt left, going immediately to the appellant’s apartment.

He found the appellant sitting on the porch of his apartment. Orcutt stepped on the appellant’s porch

and asked the appellant why his daughter had been in the appellant’s apartment. The appellant

grabbed Orcutt’s neck and pushed him. A scuffle ensued with Orcutt emerging as the victor. 

Upon his return to his apartment, Orcutt found the victim sitting on the porch with her

grandmother, Barbara Bevilagua. The victim was crying. Bevilagua asked the victim if the appellant

had touched her. Initially, the victim stated that he had not; however, shortly thereafter she

acknowledged that the appellant had touched her. When asked where the appellant touched her, the

victim, who was sitting down, gestured below her waist. Orcutt went back to the appellant’s

apartment, intending to kill him. However, police had been called as a result of the previous

struggle. The appellant was taken from the scene in an ambulance. 

The victim was taken to the Department of Children’s Services (DCS) where she was
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interviewed by a case worker, Melba Mooneyham. The victim initially told Mooneyham that

nothing happened at the appellant’s apartment. At trial, the victim explained that at the time of the

first statement, she had not wanted to discuss the incident because she was embarrassed, frightened,

and believed she would get in trouble for being in a stranger’s apartment. At a second interview with

Mooneyham on October 10, the victim told Mooneyham about the details of the molestation.

Mooneyham believed that the victim was more comfortable with her and forthright during the second

interview.

At the conclusion of the proof, the jury acquitted the appellant of the charged offense but

found him guilty of the lesser-included offense of attempted aggravated sexual battery. The trial

court imposed a sentence of four years. The court ordered that the sentence for the instant offense

be served consecutively to the nine-year sentence he had previously received for the aggravated

sexual battery of J.P. On appeal, the appellant challenges the sufficiency of the evidence, the trial

court’s evidentiary ruling, and the imposition of consecutive sentencing. 

II. Analysis

A. Sufficiency of the Evidence

In his first issue, the appellant challenges the sufficiency of the evidence supporting his

conviction, specifically complaining that there was no evidence from which a jury could infer that

the touching was for the purpose of sexual arousal or gratification. In his second issue, the appellant

contends that the trial court erred in overruling his motion for judgment of acquittal because the

victim’s testimony contained too many inconsistencies to be believed. As these issues are closely

related, we will address them together.

Initially, we note that the record reflects that the appellant made a motion for a judgment of

acquittal at the end of the State’s proof. It is well-established that a motion for a judgment of

acquittal made at the conclusion of the State’s proof is waived by an appellant when he chooses to

present evidence on his behalf. State v. Thomas, 158 S.W.3d 361, 387 (Tenn. 2005) (quoting State

v. Ball, 973 S.W.2d 288, 292 (Tenn. Crim. App. 1998)) (appendix). Regardless, “[t]he standard by

which the trial court determines a motion for judgment of acquittal at the end of all the proof is, in

essence, the same standard which applies on appeal in determining the sufficiency of the evidence

after a conviction.” State v. Thompson, 88 S.W.3d 611, 614-15 (Tenn. Crim. App. 2000).

Therefore, we will address the appellant’s complaints as a challenge to the sufficiency of the

evidence.

On appeal, a jury conviction removes the presumption of the appellant’s innocence and

replaces it with one of guilt, so that the appellant carries the burden of demonstrating to this court

why the evidence will not support the jury’s findings. See State v. Tuggle, 639 S.W.2d 913, 914

(Tenn. 1982). The appellant must establish that no reasonable trier of fact could have found the

essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307,

319, 99 S. Ct. 2781, 2789 (1979); Tenn. R. App. P. 13(e).
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Accordingly, on appeal, the State is entitled to the strongest legitimate view of the evidence

and all reasonable inferences which may be drawn therefrom. See State v. Williams, 657 S.W.2d

405, 410 (Tenn. 1983). In other words, questions concerning the credibility of witnesses and 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, and not the appellate courts. See State v. Pruett, 788 S.W.2d 559, 561

(Tenn. 1990).

In the instant case, the appellant was convicted of attempted aggravated sexual battery.

“Aggravated sexual battery is unlawful sexual contact with a victim by the defendant or the

defendant by a victim” when the “victim is less than thirteen (13) years of age.” Tenn. Code Ann.

§ 39-13-504(a)(4) (2003). “‘Sexual contact’ includes the intentional touching of the victim’s [or]

the defendant’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) (2003).

It is permissible for a jury to “use their common knowledge and experience in making reasonable

inferences from evidence.” State v. Meeks, 876 S.W.2d 121, 131 (Tenn. Crim. App. 1993).

Specifically, a jurymay draw upon their common knowledge to infer that an accused forced intimate

contact for the purpose of sexual arousal or gratification. Id. Additionally, criminal attempt occurs

when a person acting with the kind of culpability otherwise required for the offense:

(1) Intentionally engages in action or causes a result that would

constitute an offense if the circumstances surrounding the conduct

were as the person believes them to be;

(2) Acts with intent to cause a result that is an element of the offense,

and believes the conduct will cause the result without further conduct

on the person’s part; or

(3) Acts with intent to complete a course of action or cause a result

that would constitute the offense, under the circumstances

surrounding the conduct as the person believes them to be, and the

conduct constitutes a substantial step toward the commission of the

offense.

Tenn. Code Ann. § 39-12-101(a)(1)-(3) (2003).

In the instant case, the proof is uncontroverted that the victim was under thirteen years of age

at the time of the offense. Moreover, the victim testified that the appellant touched her breasts and

her buttocks, and she demonstrated at trial how the touching occurred. The victim explained that

when he touched her breast, he “pressed down.” We conclude that the jury, drawing upon its

common knowledge, could have inferred that the appellant committed the touching of the victim’s

breasts and buttocks for the purpose of sexual arousal or gratification. See State v. Alton Darnell

Young, No. M1999-01166-CCA-R3-CD, 2000 WL 380103, at *2 (Tenn. Crim. App. at Nashville,
5

Apr. 14, 2000). A rational jury could have determined that the appellant performed a substantial step

towards the commission of aggravated sexual battery. Thus, there was sufficient evidence to support

the appellant’s conviction for attempted aggravated sexual battery. 

As his second issue, the appellant contends that the trial court erred in overruling his motion

for a judgment of acquittal “based upon [the victim’s] inconsistent statements thereby cancelling out

her testimony.” Specifically, the appellant maintains that the victim’s version of events at trial was

so inconsistent with the version of events she related to Mooneyham, the proof should be subject to

cancellation. In Tennessee, “contradictory statements by a witness in connection with the same fact

cancel each other.” State v. Matthews, 888 S.W.2d 446, 449 (Tenn. Crim. App. 1993). However,

“[t]he rule of cancellation is typically limited to circumstances in which the witness has sworn to

each statement.” State v. Cayle Wayne Harris, No. M2000-02143-CCA-R3-CD, 2001 WL 1218582,

at *2 (Tenn. Crim. App. at Nashville, Oct. 12, 2001). Nevertheless, “[t]his rule of cancellation

applies only when inconsistency in a witness’ testimony is unexplained and when neither version of

[her] testimony is corroborated by other evidence.” Matthews, 888 S.W.2d at 449 (citing Taylor v.

Nashville Banner Pub. Co., 573 S.W.2d 476, 483 (Tenn. App. 1978)). 

In the instant case, the appellant complains that the version of events which the victim told

Mooneyham differs from the version of events the victim related at trial. As there is no indication

that the statementsto Mooneyham were sworn, the victim’stestimony is thus not subject to the rule

of cancellation. Regardless, the victim clearly explained any discrepancies in her testimony at trial.

 See State v. Caldwell, 977 S.W.2d 110, 118 (Tenn. Crim. App. 1997). Accordingly, the victim’s

testimony was properly considered by the jury and the trial court in determining the appellant’s guilt.

B. Expert Witness

As his next issue, the appellant argues that the “trial court erred in not allowing appellant’s

expert to testify at this trial as to the questioning of children.” Generally, the trial court has broad

discretion in determining the qualifications, admissibility, relevancy, and competency of expert

testimony. See State v. Stevens, 78 S.W.3d 817, 832 (Tenn. 2002). As such, this court will not

overturn the trial court’s ruling on the admissibility of expert testimony absent an abuse of that

discretion. See State v. Ballard, 855 S.W.2d 557, 562 (Tenn. 1993).

The factual basis for the appellant’s claim was best recited by the trial court in its order

granting the State’s motion to prohibit Dr. William Bernet, a prospective expert witness for the

defense, from testifying at trial. The trial court related that the State filed a request for discovery

under Tennessee Rule of Criminal Procedure 16(b) on June 18, 2002, and a motion to compel the

appellant to respond to the discovery request on August 15, 2002. On October 1, 2002, the appellant

responded that he did not intend to call an expert to testify at trial. On November 25, 2002, the

appellant filed a “second response,” setting forth his intention to call Dr. William Bernet as an

expert. The trial court found that the notice did not allow the State “a proper opportunity to prepare
 The trial was set to begin on December 3, 2002. 3

 The proffer was originally made in the appellant’s previous trial relating to the aggravated sexual battery

4

of J.P.

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for the witness’s testimony and the witness’s testimony must therefore be excluded.” The court also 3

found that the proposed testimony did not meet the requirements of Tennessee Rules of Evidence

702 “in that it will not substantially assist the trier of fact to determine a fact in issue, but instead

addresses an issue of witness credibility which is an issue to be determined by the jury.” 

The appellant included in the record for our review an offer of proof of the proposed

testimony of Dr. Bernet. During the offer of proof, 4

Dr. Bernet testified that he was a graduate of Harvard Medical School

and was board certified “in general psychiatry and in child and

adolescent psychiatry and in forensic psychiatry.” Dr. Bernet asserted

that his testimony would relate to three issues. First, he would

explain to the jury “the proper methods for interviewing children in

investigating allegations ofmaltreatment.” Second, he would discuss

“the various mechanisms, psychological mechanisms, by which false

statements are made by children.” Finally, he would testify regarding

“what has been studied in research with children in these situations

and to be able to explain or to list different factors that are consistent

with true allegations and different factors that are consistent with

false allegations of abuse.” 

As an example, Dr. Bernet explained that he would inform the

jury that asking a potential child sexual abuse victim suggestive,

leading, or repetitive questions was ill-advised. Dr. Bernet, had

“reviewed the interview” of the DCS worker and JP and concluded

that JP had been asked questions which influenced the answers she

gave. Dr. Bernet also noted that there were indications in JP’s

previous statements which suggested that the allegations were true,

and there were other indications which would suggest the allegations

were false. Dr. Bernet stated that his testimony would serve to aid the

jury in determining the credibility of the statements of the child

witnesses and “help them be aware of issues they need to be aware

of.” 

State v. Joseph Vermeal, No. M2004-00046-CCA-R3-CD, 2005 WL 1000237, at *5 (Tenn. Crim.

App. at Nashville, Apr. 29, 2005). 

On appeal, the appellant challenges the trial court’s exclusion of Dr. Bernet’s testimony,
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arguing that the testimony was reliable and would substantially assist the trier of fact. Tennessee

Rule of Evidence 702 provides:

If scientific, technical, or other specialized knowledge will

substantially assist the trier of fact to understand the evidence or to

determine a fact in issue, a witness qualified as an expert by

knowledge, skill, experience, training, or education may testify in the

form of an opinion or otherwise.

Further, McDaniel v. CSX Transportation, Inc., 955 S.W.2d 257, 265 (Tenn. 1997), suggests the

following criteria a court may consider in determining the reliability of proposed expert testimony:

(1) whether scientific evidence has been tested and the methodology

with which it has been tested; (2) whether the evidence has been

subjected to peer review or publication; (3) whether a potential rate

of error is known; (4) whether . . . the evidence is generally accepted

in the scientific community; and (5) whether the expert’s research in

the field has been conducted independent of litigation.

In State v. Coley, 32 S.W.3d 831 (Tenn. 2000), our supreme court examined the strictures

of Rule 702 and McDaniel in determining the admissibility of expert testimony concerning the

reliability of eyewitness testimony. The court noted that the testimony proposed in Coley was “of

a general nature designed to affect the juror’s decision on the credibility of witnesses.” Coley, 32

S.W.3d at 835. The court emphasized that “the assessment of witness credibility and the role of factfinder is always left to the jury, regardless of the issue present in the case.” Id. Finally, the court

found that 

expert testimony concerning eyewitness identification simply offers

generalities and is not specific to the witness whose testimony is in

question. Moreover, we are of the opinion that the subject of the

reliability of eyewitness identification is within the common

understanding of reasonable persons. 

Id. at 837. Thus, the court concluded that the trial court had properly excluded Coley’s expert

witness. Id. at 838. 

Our review of the record in the instant case convinces us that the testimony of Dr. Bernet

regarding the interviewing techniques of alleged child sexual abuse victims is akin to that proposed

in Coley. Dr. Bernet’s testimony was geared toward assessing the credibility of the child witnesses.

The assessment of witness credibility rests in the province of the jury. Therefore, we conclude that

the trial court in the instant case properly excluded the testimony of the appellant’s prospective

expert witness.
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C. Sentencing

As his final issue, the appellant argues that the trial court erred in ordering the appellant to

serve his instant sentence consecutively to the nine-year sentence for his previous aggravated sexual

battery conviction. The petitioner contends that the two sentences should have run concurrently. 

Appellate review of the length, range or manner of service of a sentence is de novo.

See Tenn. Code Ann. § 40-35-401(d) (2003). In conducting its de novo review, this court considers

the following factors: (1) the evidence, if any, received at the trial and the sentencing hearing; (2)

the presentence report; (3) the principles ofsentencing and arguments as to sentencing alternatives;

(4) the nature and characteristics of the criminal conduct involved; (5) evidence and information

offered by the parties on enhancement and mitigating factors; (6) any statement by the appellant in

his own behalf; and (7) the potential for rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-

102, -103, -210 (2003); see also State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991). The burden is

on the appellant to demonstrate the impropriety of his sentence(s). See Tenn. Code Ann. § 40-35-

401, Sentencing Commission Comments. Moreover, if the record reveals that the trial court

adequately considered sentencing principles and all relevant facts and circumstances, this court will

accord the trial court’s determinations a presumption of correctness. Id. at (d); Ashby, 823 S.W.2d

at 169.

We note that “[w]hether sentences are to be served concurrently or consecutively is a matter

addressed to the sound discretion of the trial court.” State v. Adams, 973 S.W.2d 224, 230-31 (Tenn.

Crim. App. 1997). Tennessee Rule of Criminal Procedure 32(c)(2) provides that consecutive

sentencing may be ordered when a defendant is convicted of an offense and “has additional sentences

not yet fully served” if the defendant meets the criteria for mandatory or discretionary consecutive

sentencing. In the instant case, there is no allegation that the appellant meets the criteria for

mandatory consecutive sentencing. Therefore, we must consider whether the appellant qualifies for

discretionary consecutive sentencing. 

Tennessee Code Annotated section 40-35-115(b) (2003) contains the discretionary criteria

for imposing consecutive sentencing. See also State v. Wilkerson, 905 S.W.2d 933, 936 (Tenn.

1995). The trial court may impose consecutive sentencing upon finding the existence of any one of

the following criteria:

(1) The defendant is a professional criminal who has knowingly

devoted such defendant’s life to criminal acts as a major source of

livelihood;

(2) The defendant is an offender whose record of criminal activity is

extensive;

(3) The defendant is a dangerous mentally abnormal person so

declared by a competent psychiatrist who concludes as a result of an
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investigation prior to sentencing that the defendant’s criminal conduct

has been characterized by a pattern of repetitive or compulsive

behavior with heedless indifference to consequences;

(4) The defendant is a dangerous offender whose behavior indicates

little or no regard for human life, and no hesitation about committing

a crime in which the risk to human life is high;

(5) The defendant is convicted of two (2) or more statutory offenses

involving sexual abuse of a minor with consideration of the

aggravating circumstances arising from the relationship between the

defendant and victim or victims, the time span of defendant’s

undetected sexual activity, the nature and scope of the sexual acts and

the extent of the residual, physical and mental damage to the victim

or victims;

(6) The defendant is sentenced for an offense committed while on

probation; or

(7) The defendant is sentenced for criminal contempt.

Tenn. Code Ann. § 40-35-115(b)(1)-(7) (2003).

In the instant case, the trial court found that consecutive sentencing was proper because the

appellant had been convicted of two or more statutory offenses involving sexual abuse of a minor

with consideration of the aggravating circumstances arising from the relationship between the

appellant and victim or victims, the time span of appellant’s undetected sexual activity, the nature

and scope of the sexual acts and the extent of the residual, physical and mental damage to the victim

or victims. The appellant’s previous aggravated sexual battery conviction stemmed from the sexual

abuse ofJ.P. in his apartment on the night of the instant offense. The appellant penetrated J.P. with

his penis while the victim in the instant case watched cartoons in the living room. During the same

evening, the appellant fondled the buttocks and breasts of the instant victim, resulting in a conviction

for attempted aggravated sexual battery. Thus, the appellant was clearly guilty of two offenses

involving the sexual abuse of a minor.

The sexual abuse of minors, alone, is insufficient to sustain the imposition of consecutive

sentencing. We must also look at “the aggravating circumstances arising from the relationship

between the appellant and victim or victims, the time span of [the appellant’s] undetected sexual

activity, the nature and scope of the sexual acts and the extent of the residual, physical and mental

damage to the victim or victims.” Tenn. Code Ann. § 40-35-115(b)(5). The time span of the

appellant’s undetected sexual activity is relatively short. Moreover, there was no particular

relationship between the appellant and the victims. However, the scope of the sexual acts and the

extent of the residual mental damage to the victims was great. At the time of the offenses, the
10

appellant was a single, white, fifty-one-year-old male. The victims, who were seven and eight years

old, came into his apartment, lured by ice cream. He allowed the children to watch cable cartoons

and jump on his bed. In the midst of this activity, the appellant sexually accosted two minor victims.

In the instant case, Orcutt, N.O.’s father, testified at the sentencing hearing that the victim still

suffers from her ordeal, noting that her grades had dropped and had not improved by the time of the

sentencing hearing. He also testified that the victim suffered from depression and nightmares, and

she feared that the appellant would jump out from behind things and kill her. After considering the

foregoing, we conclude that the trial court did not abuse its discretion in imposing consecutive

sentencing. 

III. Conclusion

Finding no error, we affirm the judgment of the trial court. 

___________________________________ 

NORMA McGEE OGLE, JUDGE