# FILED
September 23, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF CRIMIN AL APPEALS OF TENN ESSEE AT JACKSON JULY 1997 SESS ION
STATE OF TENNESSEE, ) ) APPELLEE, )

) No. 02-C-01- 9608-CC-00288 ) ) Benton County v. ) ) Julian P . Guinn, Judge ) ) (Aggra vated Sexua l Bat tery) W ILLIAM LYNDELL TODD, ) ) APPELLA NT. )

FOR TH E APPEL LANT: FOR THE APPELLEE: Guy T. Wilkinson John Knox Walkup Distric t Public Defender Attorney Gen eral & Repor ter P.O. Box 663 500 Charlotte A venue Camden, TN 38320 Nashvil le, TN 37243-0497 (App eal O nly) Sarah M. Branch Larry G. Bryant Assistant Att orney Gener al Assistant Publ ic Defender 450 James Roberts on Parkway P.O. Box 663 Nashvil le, TN 37243-0493 Camden, TN 38320 (Tria l Only) G. Robert Radford Distric t Attorney General P.O. Box 686 Huntingdon, TN 38344-0686 Todd A. Rose Assistant D istrict A

ttorney Gener

al P.O. Box 94 Paris, TN 38242- 0094

OPINION FILE D:________________________________ AFFIRMED Joe B. Jones, Pr

esiding Ju dge2 

## O P I N I O N

The appellant, William Lyndel l Todd (defendant), was convic ted o f aggrav

ated sexual battery, a

Class B felony , by

a jury of hi s peers. The tr ial court found t he defendant was a standard offender and imposed a Rang e I sentence cons isting of confinement for eight(8) years in the Department of Correction. In th is Court the defendant contends ( a) the evidence i s insufficient to support a findingby a rati onal trier of fact that he was

guilty of aggrava ted s exua l bat tery and (b) the trial cour t committed err

or of prejudici al dimensionsby failingto instruct the jury on the lesser inc luded offense of assault. A ftera thorough rev iew of

the record, t he briefs submitted by the parti es, and the law governi ng the issues pres ented for review , it is the opinion of this C ourt thatthe judgment of the trial court should beaffirmed. On occa sion the d efe nda nt ke pt th e chi ldre n of Jay an d Sus an Gr inel l wh ile Mrs

. Grinell went shoppi ng. Mr. Grinell w orked out of tow n and wasonly home on weekends. One of t he ch ildre n, SE G, was a six-ye ar-o ld girl . The othe r chil d was a n inf ant b oy. SEG was the v ictim in thi s case. On October 25, 19 94, the defendant kept the two chi ldren whi le Mrs. Gr inell went shoppi ng. The v icti m and her br other took a nap in their parents’ be d. W hen the victim awoke, she went into the living room where the defendant was watching television. W hile she wa s sitt ing on a sofa, thedefendant grabbed her , sat on the other sofa, and began rubbing her

breasts and v

aginal area

through her

clothing. The victi m asked the defendant to stop. He re fused. The victim then slapped the def endant in his face several times. He still refused to stop touch ing her. She then placed her fo ot in the defendant’s face, pr ied herself loose, retreated to her parents’ bedroom, an d locked the door. On this same date the def end ant t old t he vic tim t o lay o n the floo r so he coul d give her a “backrub”

because “she s aid her back hu rt.” The defendant first rubbed the victim’s back. He then turned her over. He began r ubbing the chest, legs, and genital area of the victim ’s bo dy. The defendant gave t hree statements to theBenton County Sheriff’s Depart ment. In the first stat ement the defendant indicated he may have touched the victim, but the3

touching was acci dental. In the s econd statementthe defendant stated “ I don’t remember
r ubbing her on her pr ivate parts for any re ason.” In the t hird statement t he defen dan t admitt ed rubbin g the vi ctim’s geni tal areas w hile she was sitting on his lap and while he
was givi ng her a “mas sage.” H e also stated “ [i]f [SEG] say s I rubbed her vag inal area I did because she has no reas on to lie on me.” During the trial, t he defendant testified any improper touching of the victim was unintentional. He did not reject or r efute the third statement he gave to the sheriff’s department.

I.

The defendant contends the ev idence is in sufficient, as a matter of law, tosupport
a find ing by a ration al t rie r of fa ct he wa s guilty of aggravated sexual battery bey ond a reasonable dou bt. T he defendant argues t hat the state failed to prove bey ond a reasonable doubt that any touching of the victim by the defen dant was for the purpose of sexual ar

ousal or gr

atification. A.

When an accused chal lengesthe sufficiency of th e convicting evidence, this Court must review the record to determine if the evidenc e adduced at tri al is sufficient "to support the finding by

the trier of fact of guilt beyond a reasonable doubt ." Tenn. R. App. P. 13(e). This rule is appl icable to findin g s of gui lt based upon dir ect evidenc e, circumstant ial evidence, or a combinati on of direct and ci rcumstantial evidence. State v. D ykes , 803 S.W.2d 250, 253 (Tenn. Crim. App.), per . app . denied (Tenn. 1990). In determining the sufficiency of the convicti ng evidence, this Cour t does not reweigh or reeval uate the evide nce. Stat e v. Mat thews , 805 S.W.2d 776, 77 9 (Tenn. Crim

. App.), per . app . denied (Tenn. 1990). Nor may this Court substituteits inferences for those drawn by the trier of fact f rom circumst antial evi dence. Liakas v. State , 199 Tenn. 298, 305, 286 S.W.2d 856, 859, cert
. denied , 352 U.S. 845, 77 S.Ct. 39, 1 L.Ed.2d 49 (1956). To the contrary, this Court is required to afford the St ate of Tenne ssee the strongest legitimateview

of the evidence cont a ined in the record as wel l as all reasonable and4

legitimateinferences w hich may be draw n from t he evidence. State v. Ca bbage , 571 S.W .2d 832, 835 (Tenn . 1978). Questionsconcerning the cre dibilit y of the wi tnesses, the weight and value to be given the evidenc e, as well as all factual i ssues raise d by the evidence ar e resolve d by the trier of fact, not this C ourt. Cabbage , 571 S.W.2d at 835. In State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973), ou r Supreme Cour t said: "A guilty

verdict by the jur

y, approved by the trial judg e, accredits the testimony

of the witnes ses for the State and resolv es all conflicts in fav

or of the theory

of the State." Since a verdictof guilt remov es the presumpti on of innocence and replaces it w ith
a presumption of guilt, the accu sed, as the appella nt, has the burden in th is Court of illustrat ing why t he evidence i s insufficient to support the verdicts re turned by thetrier of fact. State v. Tuggle , 639 S.W .2d 913, 914 (Tenn . 1982). This Court will not dist urb a verdict of guilt due to

the sufficiency

of the evidence unless the facts containe d in th e record are insufficient, as a matter of law , for a rational trier of fact to find that the ac cused is guilt y beyond a

reasonable doubt. Tuggle , 639 S.W.2d at 914.

B. The offense of aggravated sexual battery is defined by statute as “un lawful sex ual contact with a v ictim by the defendant” when “the victim is less than thirteen ( 13) years of age.” Tenn. C ode Ann. § 39-13-504(a) . Thus, before the defendant could be convi cted of aggrav

ated sexual batt ery, the state was required to pr ove beyond a reasonable doubt (a) the defendantintentionall y or know ingly had unlawful sexual co ntact wit h SEG; and (b) SEG was l ess than thir teen (13) years of age at th e time. The victim t estified that on o r about October 25, 1994, whi le babysit ting, the defendant sat her

on his lap and rubbed her breasts and vag ina. She testified that “I told him to stop and then I hit him four or five ti mes and he woul dn’t stop.”The victi m stated she then “got

out of his lap and got in my room and I locked my mommy’s door.” In a signed stat ement given to the police on June 13, 1995, the defendant refuted two earlier statements denyi ng the charges against him. He admitted rubbing the victim’s vaginal area throug h her clothes for a few seconds w hile she was sit ting on his

lap. The5

defendant also admitted that during the sam e time period he touched the victim’s chest and vagina throug h h er clothes for a few seconds while giving her a “massage.” In his statementthe defendant state d, “[i]f [SEG] says I rubbed her vaginal area I did because she has no reason to lie on me.” The defendant testified he di d touch the vi ctim’s chest and genitals , but indicated the touching was accide ntal. Ho wever , the defendant did not r eject his Ju ne 13, 1995 statement to the pol ice. There is sufficient evidence to s upport a finding by a rati onal trier of fact that the defendant wasguilty

of aggravated sexual battery bey ond a reasonable do ubt. Tenn. R. App. 13(e). This issue is

without mer it.

II.

The defendant contends the tr ial court committed error of prejudicial dimensions by failing to instruct

the jur y on t he lesser included off ense of assault, a Class A misdemeanor. Tenn. Code Ann. § 39- 13-101. However, the defendant candidly states in his brief that “ [t]rial cou nsel did not req uest a lesser included offense and in fact, agreed that there wer

e [no lesser included offenses]. Nor was the issueraised in hi s Motion for New Trial.” I n short, the defendant h as raised this issue for the first time in this Court. He arguesthe failure to give such an instr uction consti tuted plain err or, and this Court should consider thi s issue notw ithstanding his waiv er of the issue. When the parties ha d rested their respective cases, the tr ial court made the following statement for the record:

Let the record reflec

t that at the recess just had for both lunch and prior to these arguments that the instructions that were give n -- or will be giv en to this jury were given to counsel. There were no s pecial req uests to charg e nor were there any objectionsto the instr uctions in the form in which they wi ll be given to the panel. Additionally , this morning, before voir dire was complet e, the possibil ity of a lesser i ncluded charg e was discussed with coun sel and both couns el for the State and for the defen dant agreed that the re were not properly and includable lesser included of fenses in this case

. . . .6

(Emphasis added). The tri al court asked c ounsel for the stat e and counsel for t he defendant if this was an accurate st atement of what tr anspired. Both lawyers advis ed the court this w

as a correct

statement of what had occurred. After the tri al court made the statement for the record, defense counsel stated:
Your Honor, just for the record, I agreed with that becau se it’s alleged that the c hild -- the aggrava ted sexual battery is alleged because the chi ld is under t hirtee n. And, obvio usly, the proof was that

the child was six at

the time. And so either it w ould be a finding of guilt as t o the charge or not gui lty. I t couldn’t be lesser i ncluded . They couldn’ t possibly find according to the facts that the c hild was not under the ag e of thirteen. (Emphasis added). Given these circumstances, the trial court did not charge a lesser inc luded offense. The charge was lim ited to t he off ense all eged in th e indict ment, i.e., aggr ava ted sexual batt ery. A.

This issue has been waived

. Wh en the trial court broached the subj ect of instruct ing the jury on a lesser included off ense during v oir dire ex

amination, defense couns el agreed there should be no instruction on a l esser incl uded o ffense incl uded in the charg e given to the jury. Whe n the tria l cou rt made the aforemention ed statement for the record, defense counsel rei terated the defendant was either gui lty of agg ravated sex ual battery or he should be acq uitted. It appears part of def ense counsel’s t rial strategy was to limit the j ury’s c hoice to the offense charged in the indictment or an acquittal. Obvio usly, trial counsel thought he could establish the touching of thechild was accidental -- that it was not s exually

motivated as required by Tenn. Code Ann. § 39-13-504(a)

. Given these circ umstances, the fail ure of the trial court to inst ruct on the les ser included offense of assault did not constitute“plain error” within the meaning of Rule 52(b), Tenn. R. Crim. P. Nor do thes e circumstances meet the criter ia for consider ing plain error set forth in State v. Adkis son , 899 S.W.2d 626 (Tenn. Crim. App. 199 4). Further more, this Court is unw illing to consider t his issue pur suant to Rule 13 (b), Tenn. R. A pp. P.7 B.

The defendant failed to bri ng the omissi on of an instructi on on assault from t he charge to the attention of the trial court. This resulted in the waiver of this iss ue. Stat e v. Haynes , 720 S.W.2d 76, 85 (Tenn. Crim. App.) , per . app . denied (Tenn. 1986); Stat e v. Blackwood , 713 S.W.2d 677, 681 (Tenn. Crim. App.) , per . app . denied (Tenn. 1986). Al so, a party is not entitled to relief w hen the party fails to take t he appropriate a ction to prevent or nullify the harmful ef fect of an error. Ten n. R. App. P. 36(a).

C.

The failure to include this issue in his motion for new trial constituted a waiver of this issue. Tenn. R. App. P. 3(e). See State v. Caldwell , 671 S.W.2d 459, 465 (Tenn.), cert. denie d , 469 U.S. 873, 105 S.Ct. 231, 83 L.Ed .2d 160 (1984); State v. Keel , 882 S.W.2d 410, 417-18 (Tenn. Crim. App.) , per . app . denied (Tenn. 1994); State v. M cPherson , 882 S.W.2d 365, 375 (Tenn. Cri m. App.), per . app . denied (Tenn. 1994); State v. Ca rter , 687 S.W.2d 292, 293 (Tenn. Cr im. App, 1984), per . app . deni ed (Tenn. 1985). Rule 3(e) providesthat

any ground ass ert ed for

the g rant ing of anew

trial must be “specifical ly stated in a motion for a new

trial; ot herwise such issues will b e treated as waived.” This issue is

without mer it.

________________________________ ____________

_ JOE B. JONES, PRESIDING JUDGE CONCUR:

______________________________________ DAVID H. WELLES, JUDGE

______________________________________ JOE G. R ILEY, JUD GE