# FILED April 30, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE MARCH SESSION , 1998 STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9704- CC-00127 ) Appellee, ) ) ) ROBERTSON COU NTY VS. ) ) HON. ROBERT W. WEDEMEYER GARRETT RAI NES, ) JUDGE ) Appe llant. ) (Rape of a Chil d)

ON APPEA L FROM THE JUDGMENT OF THE CIRCUIT COURT OF ROBERTSON CO UNTY
FOR THE APPELLANT : FOR THE APPELLEE : MICHAEL R. J ONES JOHN KNOX WALKUP Public Defender Attorney Generaland Reporter DARYL J. BRAND Assistant Attorney General 425 5th Avenu e North Nashvill e, TN 37243-0493 JOHN CARNEY Distri ct Attor ney General DENT MORRISS Assistant Distri ct Attor ney General 500 Souty Main Str

eet Springfi eld, TN 37172
OPINION FILED ________________________ AFFIRMED DAVID H. WELLES , JUD GE1 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.” o r sim ply as “ the vic tim” throu gho ut this opinion. -2-



# OPINION

The Defen dant, Garrett Rai nes, appeals as of right pur

suant to Rule 3 of the Tenn essee Rules o f Appella te Proce dure. He was convicted by a Robertson Coun ty jury of

rape of a chi ld. 1 The trial court sen tenced him to sixteen years imprisonmentwith the Depar tment of Correc

tion. I n this appeal , the Defendant argues that the trial cou rt erred in determining thatthe chil d-vict im was competent to testif y and that theevidenc e was leg ally insufficien t to suppo rt the verdict. W e affirm the ju dgme nt of the trial co urt.

We begin wit h a summary of the p ert inent fac ts. The State offered t he testimony

of threein dividuals a t trial: Jackie A dams , the wife of th e Defe ndant; B.A., the victi m; and Julie Roso f, an employee of the Our Kids Clini c who examined B.A. afte r the commission of the offens e. 2 The test imo ny of J ackie Adamsprincipa lly concerned fami ly bac kground inf

ormati on. At t he t ime of the offense, the Defendant had been married to Adams for approximatel y two and a half yea rs. Th e victim in this ca se, fou r-year- old B.A., was Adams’ chi ld f rom a previousrel ati onsh ip. Adams als o hada ch il d by

theDef enda nt a nd, at t he t ime of the offens e, was pregna nt with the Defendant’ s second chil d. Adams’ chil d by the Defendant was nearl y three years old at the time of

the offe nse. T he fam ily lived at Lemley Trai ler Park f rom January of 1995 through early March of 1995. Duri ng January and early February, 1995, the Defendant worked vari ou s constructi on-related jobs with his ste pfathe r. Jack ie Ada ms d id not w ork wh ile-3-

the Defen dant wa s emp loyed. Du ring the latte r part of February, 1995, the Defenda nt wa s not worki ng. As a resul t, Jacki e Adams began working a 7:00 a.m. to 3:00 p.m. shift at McDonald’s.

Jack ie Adam s testified fu rth er that s he no ticed a chan ge in th e victim ’s behavior

beginning i n April, 1995. She stated that the v ictim began ex hibiti ng anger and was essential ly “mad at t he world.” On cross-examination, Adam s identif ied Richard Holt as a friend of

the famil y with whom her chi ldren had spent the nighton several occasions. Adams admit ted that it was possibl e herchildren may have seen x-rated movies on those occasions.
B.A., five years old atthe time of trial , testified that

he remembered livi ng in a trail er with t he Defenda nt and sharing a r oom wit h his stepbr

other . B.A. stated that on one occasion, while his mother was at work, t he Defendant “stuck his pig in my m outh.” Up on furthe r question ing, B.A . identif ied “pig” as the Defe ndan t’s “privat

e.” B.A. testifi ed further that t he De fen dant

“t old me the stuff thatcam e out o f his pig was mayonnaise. ” On this occas ion, B.A. stated th at he
was in bed with h is clothes o ff and that th e Defe ndant h ad his clo thes off as we ll. B.A. testif ied that

he did nottell anyone about the i ncident i mmediately afterwards because it was a secret. Event ually he told hi s m other about t he incident and theymo ved ou t of the t railer . On cross-examination, B.A. ident ified t he Defendant as his “ Dad dy,” sta ted tha t he love d his D addy a nd tha t he wa nted h is Daddy to come home.

The only other

witness to testif

y for t he State was Jul ie Rosof. Rosof was an employee of the O ur Kids Clinic a nd, on April 10, 1995, conducted a physical-4-

exa mination of B. A. i n res ponseto a r eport of po ssib le sexual abuse . Ro so f testif ied that B. A.’s physi cal evaluat ion was normal and that it revealed not hing to indicate sexu al abuse. Rosof stated, howe ver , that she w ould no t expect to find evidence of oral penetrati on and ejaculat ion once severa l hours had passed from the time of the incident.

The Defendant, t hirty-three year s old at t he time of t rial, testif ied in his own defense. He stated tha t he began living with B.A. when th e child was on ly five months old. The Defenda nt denied ever hav ing had sexual contact wi th the vi cti m. On cross-examinat ion, he admit ted that he had been convicted of larce ny from the person i n Davidson County Cri minal Court on July 26, 1984.

The Defendant was indi cted on July 27, 1995. I ncluded in t he indict ment were four cou nts: two for rape of a c hild and two for ag gravated sexu al battery. The two aggravated s exual battery counts were di smissed, wit h the agreement
o f the S tate, immed iately prior to trial. The Defen dant was tried from February 12 to F ebruary 13 , 1996. One count of rape of a chi ld was dismiss ed after t he completion of the prese ntation of proof at t rial, again wit h the agreement of the State. The remai ning count of the indictm ent cha rged the Defen dant with rape of a child during Fe bruary, 1995. After consideri ng the proof prese nted a t trial, the jury found the Defendant guilty as charged.

In his fi rst iss ue on appeal, t he Defendant argues t hat the trial court erred in deter minin g that

B.A. was compet ent to test ify . As we stated above, B.A. was five years o ld at the tim e of trial. The Defendant contends t hat the record does not demo nstrat e that B.A. understood thenature of hi s oath. As a result, h e-5-

argues that the t rial j udge a bused his discre tion in finding B.A. com petent to testify.

Rules 601 and 603 of the Tennessee Rul es of Evidence provide guidance regarding issues of competenc y of wi tne sses to test ify. Rule 601 state s that “[e]very p erson is presumed competent to be a witness except as otherwise provided in these r ules or by st atute.” Tenn. R. Evid. 60 1. Rule 603 prov ides that“[b]efore testifying, eve ry witness shall be re quired to declare that the wit ness will testif

y truth fully

by oath or af

firmati on, administered in a form calculat ed to awaken the witness’s conscie nce an d impre ss the witn ess’s m ind with the duty to do so.” Tenn. R. Evid. 603.

In t he case sub judice , the Defe ndant d oes no t sugge st that a sta tute o r another rule of evidence alters the appli cation of the presumption of competence afforded B.A. by the operatio n of Rule 601. W ith regard to dete rm inations o f a child’ s competency to testify , our supreme court has stated t he following: Whe n exam ining a child’s c omp etenc y to testify a judg e sho uld determine whether the chi ld understand s the nature and meaning of an oath, hasthe intel ligence to understand th e subject matter of the testimony, and is capable of relating th e facts accura tely. Sta te v. Ba llard , 855 S.W.2d 557, 560 (Tenn. 19 93) (cit ing State v. Fears , 659 S.W.2d 370 (Tenn. Crim. App . 1983)). In addition, the question of competency to testif y is a matter

entrusted to the sound di scretion of the tri al judge, who has the opportunit

y to observe the witnes s first hand, and that discreti on will not be disturbed on app eal abse nt abus e. State v. Cau ghron , 855 S.W.2d 526, 538 (Tenn. 1993), cert. deni ed , 510 U. S. 979, 11 4 S.Ct. 475, 126 L.E d.2d 426 (19 93); State v. Howa rd , 926 S.W .2d 579, 584 (Tenn. Crim . App. 1996 ).-6- In the pre sent c ase, th e trial court questioned B.A. during a j ury-out hearing
. During this questioni ng, B.A. stated that he knew the difference between telling the truth and telling a lie. To tes t this sta temen t, t he trialjudge asked B.A. simple questions regar ding statements about a red pi ece of clot hing. The tri al j udge asked B.A. if stating the clothi ng was blue would be the truth or a lie, and B.A. respo nded the sta teme nt wou ld be a lie. The trialjudge next as ked B.A. if stating the clothi ng was red would be t he truth or a lie, and B.A. responded the statement wou ld be the truth. U pon fu rther q uestio ning, B .A. state d that it was be tter to tell the truth than to tella lie and t hat if he did not te ll the truth, he would go to jail. B.A . testified that g oing to jail wa s a bad th ing and that he did not wantto go to jail. Thus, B.A. stated that he was going to tell the truth when asked questions by

the attorneys at trial. After heari ng B.A.’s testimony, t he trial court found him compe tent to testify.

From this rec ord, we can o nly conclude that the tri al judge did not abuse his discreti on in fi nding B.A. competent to testify. The purpos e of determini ng competency of a child wit ness to testify in sexua l abus e cas es “is to allow a victim to testif y if i t can be determined that the chil d understands t he necessity of tell ing the truth while on the witne ss stand.” Ballard , 855 S.W.2d at 560. Through questioni ng, the tri al court determined that B.A. knew the d ifferenc e between truth and falsehood and t hat he intend ed to tell the trut h during quest ioning by t he attorneys at tri al. We believe t hat the tr ial court ’s col loquy with B.A. demonstrated thatB.A. understood the necessit y of tel ling thetruth whi le on the witness stand. See Ballard , 855 S.W .2d at 560 ; Howard , 926 S .W.2 d at 584. According ly, we conclude that the t rial cour

t di d not err in a llowing the child to testify. The Defen dant’s first issu e is therefo re withou t merit.-7- In his second is sue on ap peal, the Defendant ar gues that t he evidence was legally insuffici ent to su pport the verdict. When an accused challenges the suffic ien cy of the convi cting evi dence, the standard is wheth er, after reviewing the evidence in the l ight most favorable to th e prosecution, any rati onal trier of fact could have found the essen tial eleme nts of the crim e beyon d a reas onable doubt. Jackson v. Virgin ia , 443 U.S. 307, 319 (1979). Quest ions concerning t he credibility of the wit nesses, theweight and val ue to be g iven the eviden ce, as well
as all factual i ssues raised by the evidence, are resolved by the trierof fact, not this court. State v. Pappas , 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). Nor may this court re weigh o r reevalua te the evide nce. S tate v. Cabbage , 571 S.W .2d 832 , 835 (T enn. 19 78).

A jury ver

dict approv

ed by the trial j udge accredits the State’ s witnes s es and resolves all conflicts in fa vor of the S tate. State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973). On appeal, the State is ent itled t o the stron gest legiti mate viewof the evi dence and all i nferences therefrom

. Cabbage , 571 S.W.2d at 835. Because a verdict

of guil t removes thepresumption of innocence and replaces it with a presumption of guil t, the accuse d has the b urden in thi s court of illustrati ng why the evi dence is insuf ficien t to support the verdict returned by

the trier of fact. State v. Tug gle , 639 S.W .2d 913 , 914 (T enn. 1982); Grace , 493 S.W.2d at 476.
Appl ying these prin ciples to the case sub judice , we believe that t h e evidence was legall y suffi cient to support the verdicts. Rape of a child i s defined
as “the unlawf ul sexual penetr ation of a vict im by the defenda nt or the def endant by a victi m, if such v ictim i s less than t hirteen ( 13) yea rs ofage.” Tenn. Code-8-

Ann. § 39-13-52 2(a). Sexu al penet ration i s defined as “sexual intercourse, cunnilingus, fellatio, anal inte rcourse , o r any oth er intr usion, however slight , of any part of a person’s body or of any object into the genital or anal openi ngs of the victi m’s, the defendant’s , or any other person’ s body, but emi ssion of semen is not required.” Te nn. Code Ann. § 39-1 3-501(7).
At trial, B.A. related that the Defendant stuck“his pig in m y mouth .” B.A. stated that by “ pig” he mea nt the Defend ant’s “private,” demo nstrating where the “private” would be on a toy bear. B.A . t est if ied fur the r t hat theDef enda nt “

tol d me t he stuff t hat came out of hi s pig was mayonnaise. ” As we stated a bove, a p hysic al examination conducted on the v ictim more t han a month after the alleged incident re vealed n othing to in dicate sexua l abuse. The examiner, however, stated th at she would not expec t to fi nd evidence of

oral penetrati on or ejaculat ion once several hour s had passed. In his own defense, the Defendant denied ever having had sexual contact wi th the victi m. He also offered evidence of an alleged r

ecantation by the vi cti m. In parti cular, t he Defendant test ified t hat he met with Jackie A dams and B.A . aft er theyhad moved out of t he trail er followi ng the inci de nt. Th e follow ing co lloquy o ccurre d durin g the D efend ant’s testimony: Q. And at that me eting at tha t motel, B [.A.] told you that, indeed, you had done those t hings, di dn’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 Defenda nt contends t hat, in l ight of hi s testi mony, the State’s proof was legally insu fficient to sup port the ve rdict.-9- The proof in the present case posed a credi bility quest ion for the jury to resolve. The victi m related an incident of oral penetrati on, while the Defendant denied sexual contact. From the v erdict, it is

clear the jury resolve d the cre dibility question again st the D efend ant. W hile the De fenda nt’s testimony concerning a poss ible recantati on by the victi m was relevant, its i mpact on the credi bilit y of the victim’s testimony was a matter to be d etermined by the jury. Obviously the jury found the vict im’s test imony to be persuasive, even in ligh t of the D efend ant’s testimony about a p ossible r ecantation . From this record, we cannot conclude thatthe evidence was legall y insuff icient to suppo rt the j ur y’s ver dict. The Defen dant’s se cond iss ue is there fore witho ut merit.

For the reasons set

forth i n t he discussion above, we concl ude that the Defe ndan t’s issues on appeal lack merit . We therefore af firm the j udgment of the trial court.

____________________________________ DAVID H. WELLES , JUD GE-10-

CONCUR:

___________________________________ JOSEPH M. TIPTON, JUDGE

___________________________________ JOE G. RILE Y, J UDGE