FILED

April 30, 1998

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

MARCH SESSION, 1998

STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9704-CC-00127

)

Appellee, )

)

) ROBERTSON COUNTY

VS. )

) HON. ROBERT W. WEDEMEYER

GARRETT RAINES, ) JUDGE

)

Appellant. ) (Rape of a Child)

ON APPEAL FROM THE JUDGMENT OF THE

CIRCUIT COURT OF ROBERTSON COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

MICHAEL R. JONES JOHN KNOX WALKUP

Public Defender Attorney General and Reporter

DARYL J. BRAND

Assistant Attorney General

425 5th Avenue North

Nashville, TN 37243-0493

JOHN CARNEY

District Attorney General

DENT MORRISS

Assistant District Attorney General

500 Souty Main Street

Springfield, TN 37172

OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
1

 Tenn. Code Ann. § 39-13-522.

2

 It is the policy of this Court no t to refer to m inor victim s of sex ual abus e offens es by nam e. 

Acc ordin gly, we will refe r to the victim in this c ase as “B.A.” or sim ply as “the vic tim” throu ghout this

opinion.

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OPINION

The Defendant, Garrett Raines, appeals as of right pursuant to Rule 3 of

the Tennessee Rules of Appellate Procedure. He was convicted by a Robertson

County jury of rape of a child.1

 The trial court sentenced him to sixteen years

imprisonment with the Department of Correction. In this appeal, the Defendant

argues that the trial court erred in determining that the child-victim was competent

to testify and that the evidence was legally insufficient to support the verdict. W e

affirm the judgment of the trial court.

We begin with a summary of the pertinent facts. The State offered the

testimony of three individuals at trial: Jackie Adams, the wife of the Defendant;

B.A., the victim; and Julie Rosof, an employee of the Our Kids Clinic who

examined B.A. after the commission of the offense.2

 The testimony of Jackie

Adams principally concerned family background information. At the time of the

offense, the Defendant had been married to Adams for approximately two and a

half years. The victim in this case, four-year-old B.A., was Adams’ child from a

previous relationship. Adams also had a child by the Defendant and, at the time

of the offense, was pregnant with the Defendant’s second child. Adams’ child by

the Defendant was nearly three years old at the time of the offense. The family

lived at Lemley Trailer Park from January of 1995 through early March of 1995.

During January and early February, 1995, the Defendant worked various

construction-related jobs with his stepfather. Jackie Adams did not work while
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the Defendant was employed. During the latter part of February, 1995, the

Defendant was not working. As a result, Jackie Adams began working a 7:00

a.m. to 3:00 p.m. shift at McDonald’s.

Jackie Adams testified further that she noticed a change in the victim’s

behavior beginning in April, 1995. She stated that the victim began exhibiting

anger and was essentially “mad at the world.” On cross-examination, Adams

identified Richard Holt as a friend of the family with whom her children had spent

the night on several occasions. Adams admitted that it was possible her children

may have seen x-rated movies on those occasions.

B.A., five years old at the time of trial, testified that he remembered living

in a trailer with the Defendant and sharing a room with his stepbrother. B.A.

stated that on one occasion, while his mother was at work, the Defendant “stuck

his pig in my m outh.” Upon further questioning, B.A. identified “pig” as the

Defendant’s “private.” B.A. testified further that the Defendant “told me the stuff

that came out of his pig was mayonnaise.” On this occasion, B.A. stated that he

was in bed with his clothes off and that the Defendant had his clothes off as well.

B.A. testified that he did not tell anyone about the incident immediately afterwards

because it was a secret. Eventually he told his mother about the incident and

they moved out of the trailer. On cross-examination, B.A. identified the

Defendant as his “Daddy,” stated that he loved his Daddy and that he wanted his

Daddy to come home.

The only other witness to testify for the State was Julie Rosof. Rosof was

an employee of the Our Kids Clinic and, on April 10, 1995, conducted a physical
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examination of B.A. in response to a report of possible sexual abuse. Rosof

testified that B.A.’s physical evaluation was normal and that it revealed nothing

to indicate sexual abuse. Rosof stated, however, that she would not expect to

find evidence of oral penetration and ejaculation once several hours had passed

from the time of the incident.

The Defendant, thirty-three years old at the time of trial, testified in his own

defense. He stated that he began living with B.A. when the child was only five

months old. The Defendant denied ever having had sexual contact with the

victim. On cross-examination, he admitted that he had been convicted of larceny

from the person in Davidson County Criminal Court on July 26, 1984.

The Defendant was indicted on July 27, 1995. Included in the indictment

were four counts: two for rape of a child and two for aggravated sexual battery.

The two aggravated sexual battery counts were dismissed, with the agreement

of the State, immediately prior to trial. The Defendant was tried from February

12 to February 13, 1996. One count of rape of a child was dismissed after the

completion of the presentation of proof at trial, again with the agreement of the

State. The remaining count of the indictment charged the Defendant with rape

of a child during February, 1995. After considering the proof presented at trial,

the jury found the Defendant guilty as charged.

In his first issue on appeal, the Defendant argues that the trial court erred

in determining that B.A. was competent to testify. As we stated above, B.A. was

five years old at the time of trial. The Defendant contends that the record does

not demonstrate that B.A. understood the nature of his oath. As a result, he
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argues that the trial judge abused his discretion in finding B.A. com petent to

testify.

Rules 601 and 603 of the Tennessee Rules of Evidence provide guidance

regarding issues of competency of witnesses to testify. Rule 601 states that

“[e]very person is presumed competent to be a witness except as otherwise

provided in these rules or by statute.” Tenn. R. Evid. 601. Rule 603 provides

that “[b]efore testifying, every witness shall be required to declare that the witness

will testify truthfully by oath or affirmation, administered in a form calculated to

awaken the witness’s conscience and impress the witness’s mind with the duty

to do so.” Tenn. R. Evid. 603.

In the case sub judice, the Defendant does not suggest that a statute or

another rule of evidence alters the application of the presumption of competence

afforded B.A. by the operation of Rule 601. With regard to determinations of a

child’s competency to testify, our supreme court has stated the following:

When examining a child’s competency to testify a judge should

determine whether the child understands the nature and meaning of

an oath, has the intelligence to understand the subject matter of the

testimony, and is capable of relating the facts accurately.

State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993) (citing State v. Fears, 659

S.W.2d 370 (Tenn. Crim. App. 1983)). In addition, the question of competency

to testify is a matter entrusted to the sound discretion of the trial judge, who has

the opportunity to observe the witness firsthand, and that discretion will not be

disturbed on appeal absent abuse. State v. Caughron, 855 S.W.2d 526, 538

(Tenn. 1993), cert. denied, 510 U.S. 979, 114 S.Ct. 475, 126 L.Ed.2d 426 (1993);

State v. Howard, 926 S.W.2d 579, 584 (Tenn. Crim. App. 1996).
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In the present case, the trial court questioned B.A. during a jury-out

hearing. During this questioning, B.A. stated that he knew the difference

between telling the truth and telling a lie. To test this statement, the trial judge

asked B.A. simple questions regarding statements about a red piece of clothing.

The trial judge asked B.A. if stating the clothing was blue would be the truth or a

lie, and B.A. responded the statement would be a lie. The trial judge next asked

B.A. if stating the clothing was red would be the truth or a lie, and B.A. responded

the statement would be the truth. Upon further questioning, B.A. stated that it

was better to tell the truth than to tell a lie and that if he did not tell the truth, he

would go to jail. B.A. testified that going to jail was a bad thing and that he did

not want to go to jail. Thus, B.A. stated that he was going to tell the truth when

asked questions by the attorneys at trial. After hearing B.A.’s testimony, the trial

court found him competent to testify.

From this record, we can only conclude that the trial judge did not abuse

his discretion in finding B.A. competent to testify. The purpose of determining

competency of a child witness to testify in sexual abuse cases “is to allow a victim

to testify if it can be determined that the child understands the necessity of telling

the truth while on the witness stand.” Ballard, 855 S.W.2d at 560. Through

questioning, the trial court determined that B.A. knew the difference between

truth and falsehood and that he intended to tell the truth during questioning by the

attorneys at trial. We believe that the trial court’s colloquy with B.A.

demonstrated that B.A. understood the necessity of telling the truth while on the

witness stand. See Ballard, 855 S.W .2d at 560; Howard, 926 S.W.2d at 584.

Accordingly, we conclude that the trial court did not err in allowing the child to

testify. The Defendant’s first issue is therefore without merit.
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In his second issue on appeal, the Defendant argues that the evidence was

legally insufficient to support the verdict. 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). 

A jury verdict approved by the trial judge accredits the State’s witnesses

and resolves all conflicts in favor of the State. State v. Grace, 493 S.W.2d 474,

476 (Tenn. 1973). On appeal, the State is entitled to the strongest legitimate

view of the evidence and all inferences therefrom. Cabbage, 571 S.W.2d at 835.

Because a verdict of guilt removes the presumption of innocence and replaces

it with a presumption of guilt, the accused has the burden in this court of

illustrating why the evidence is insufficient to support the verdict returned by the

trier of fact. State v. Tuggle, 639 S.W .2d 913, 914 (Tenn. 1982); Grace, 493

S.W.2d at 476.

Applying these principles to the case sub judice, we believe that the

evidence was legally sufficient to support the verdicts. Rape of a child is defined

as “the 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
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Ann. § 39-13-522(a). Sexual penetration is defined as “sexual intercourse,

cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of

any part of a person’s body or of any object into the genital or anal openings of

the victim’s, the defendant’s, or any other person’s body, but emission of semen

is not required.” Tenn. Code Ann. § 39-13-501(7).

At trial, B.A. related that the Defendant stuck “his pig in my mouth.” B.A.

stated that by “pig” he meant the Defendant’s “private,” demonstrating where the

“private” would be on a toy bear. B.A. testified further that the Defendant “told me

the stuff that came out of his pig was mayonnaise.” As we stated above, a

physical examination conducted on the victim more than a month after the

alleged incident revealed nothing to indicate sexual abuse. The examiner,

however, stated that she would not expect to find evidence of oral penetration or

ejaculation once several hours had passed. In his own defense, the Defendant

denied ever having had sexual contact with the victim. He also offered evidence

of an alleged recantation by the victim. In particular, the Defendant testified that

he met with Jackie Adams and B.A. after they had moved out of the trailer

following the incident. The following colloquy occurred during the Defendant’s

testimony:

Q. And at that meeting at that motel, B[.A.] told you that, indeed,

you had done those things, didn’t he?

A. He told me no and then he said yes.

Q. Okay -- well, he told you both ways, but at any rate, it was

clear to you that he was accusing you of that at that time, wasn’t it?

A. Yes, sir.

The Defendant contends that, in light of his testimony, the State’s proof was

legally insufficient to support the verdict.
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The proof in the present case posed a credibility question for the jury to

resolve. The victim related an incident of oral penetration, while the Defendant

denied sexual contact. From the verdict, it is clear the jury resolved the credibility

question against the Defendant. While the Defendant’s testimony concerning a

possible recantation by the victim was relevant, its impact on the credibility of the

victim’s testimony was a matter to be determined by the jury. Obviously the jury

found the victim’s testimony to be persuasive, even in light of the Defendant’s

testimony about a possible recantation. From this record, we cannot conclude

that the evidence was legally insufficient to support the jury’s verdict. The

Defendant’s second issue is therefore without merit.

For the reasons set forth in the discussion above, we conclude that the

Defendant’s issues on appeal lack merit. We therefore affirm the judgment of the

trial court.

____________________________________

DAVID H. WELLES, JUDGE
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CONCUR:

___________________________________

JOSEPH M. TIPTON, JUDGE

___________________________________

JOE G. RILEY, JUDGE