### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on

Briefs J uly 28, 2004
STATE OF TENN ESSEE v. LARRY F. LITTON
Appeal from the Criminal Court for Sullivan County No. S44,898 R. Jerry Beck, Judge

No. E2003-00782-CCA-R3-CD - Filed October 5, 2004

The appellant, Larry

F. Litton, was indicted on ch arg es of rape in violation of Tennessee Code Annotated

section 39-13-503. A jury found the appellant guilty of the l es ser-included offense of sexual battery and r

ecommended a $3,000 fine. The appellant was sentenced

to a one-ye ar sentence
as a Range I

Standard Offender, but the trial court ordere d the appellant to serve two y ears on probationin lieu of incarceration. The trial court also imposed the $3,000 fine r ecommended by

the ju ry. After

t he denial of a motion for new trial, this appeal ensued. The a ppellant challenges: (1) the trial cou

rt’s dec ision to all ow the testim ony of Dr. Scott Levine in which he rec ounted a conversation

with the victim that occurred several weeks af ter the incident ; (2) the trial court’s instruction to the jury that a tape-recorded conversation between the victim and t he appellant was
an“alleged admission;” and (3) the sufficienc y of the evidence. For the following reasons, we af firm the decision of the trial court.
Tenn. R. App.P. 3 Appe al as of Right ; Judgme nt of the Tri al Court is Affirme d.

J ERRY L. S MITH , J., delivered the opini on of the court, in which D AVID H. W ELLES and J AMES C URWOOD W ITT , J R ., JJ., joined.
David E. Crockett and Lisa D. Rice, Elizabethton, Tenne ssee, for the appellant, La rry F . Litton.

Paul G. Summers, Attorney Gene ral & Reporter; Brent C. Cherry , Assistant Attorne y Gener al; Greeley We ll s, Di st ri ct At to rn ey G en er al ; a nd Te re sa Mu rr ay Smit h, Assistant District Attorney General, for the appellee, State of Te nnessee.-2- OPINION Factual Backgr

ound

OnMonday, Octobe

r 23, 2000 , the vict

im, Christy

Trent, w as admitte d to Bristol Regional Medical Center for a surgical proce dure. The victim was licensed as a nurse, but did not work at the time of the pr

ocedure due to var

ious phy sical ail ments. The

victim was scheduled to have a feeding tube installed

because of a

condition called “chronic aspiration.” As a result of chr onic aspiration when the vi ctim swall owed fo od, i t pass ed int o her l ungs rather than her stomach. The insertion of the feeding tube was designe d to alleviate this problem.

Onthe day

the victim

was scheduled for the procedure, the appellant, a licensed registered
nurseanesthetist, was working in the operating room a t Bristol Regiona

l Medical Center. The appellant introduced himself to the victim and explained that he would b e respon sible for both administering and monitoring her medications both prior to and dur

ing her procedu re. The victim specific ally

asked the appellant to check on her aft er the pr ocedure to make sure she was alright. The victim also complained to the appellant that her husband did not accompany

her to the hospital for the procedure.

Prior to the feeding tube procedure, the victim had undergone at least thirty-three surgeries for various phys ical ailm

ents. One of these surger ies requ ired a morphine pu

mp to be ins erted in

to her spine for pain relief from her back proble ms; the morphine pump was in place at the time of

the feeding tube procedure.

The vi ct im re ma in ed in th e h os pi ta l u nt il Oc to be r 2 7, 20 00 . S ev er al da ys later, after calling
one of her psyc

hologists and an attorney , and having a conversat ion with her h

usband, the victim called the Bristol Tennessee Police Department to report that the appellant raped her while she was a patient at Bristol Regional Medical Center.

The appella

nt contacte d Inves tigator Debbie Richmond-McCauley with the Bristol Police Department. Several

day s later, Investigator Richmond-M cCauley spoke w ith the victim. According to the victim, the appellant visited her in her hospital room on Tuesday, the da

y after her surgery, for
no apparent reason. When he left, he told he r tha t he ma y c ome b ack t

o visi t her aga in the next night. On Wednesday af

ternoon, the appellant telephoned the victim in her hospital room to tell her that he would come see her later that eve ning. At approxima

tely 2:30 a.m. on Thu rsday mor ning, the appe llant tele

phoned th e victim a

nd invited

her to meet him in

the “on c all” roo m. The victim told the appellant “no” and he informed her th at he would “run up” and see her. The a ppellant arrived at the victim’s room about fifteen minutes later.

The victim claimed that once in her ro om, the appellant crossed the room to the windows and drew the shades tighter. The victim claimed that the appe llant then

sat on her

bed and s

poke with1 Th e victim ’s husba nd at the time of the “attemp ted m urde r” later d ied. T he victim has sinc e rem arried

. -3- her briefly. Afte

r some light conversation, the victim claimed that the appellant leaned over

the rail of her bed and st arted k issi ng her o n the m outh and “s tuck h is to ngu e” in h er mouth. The victi m claimed that she pushed the appellant away , told him to stop, and told him that he should leav e. Then, according to the victim, the appellant gra bbed her right

hand and said, “Look what y ou did,” placingher hand on his erect p enis over his clothin

g. The v ictim pulle d her han

d away and ag ain told the appellant to leave. The victim stated that the appellant then walked around the bed, pulled downhis scrub pants and

exposed him self to the

victim. The appellant then allegedly “leaned over and took my head ag ain and f

orced hi s penis in my

mo uth.” The victim claimed that she bit the appellant’s penis and, as a result, he removed it from her mouth. After removing his penis from her mouth, the victim claimed that the appellant tried to get her to “masturbate him.” When she refused, the victim claimed that

the appe llant “fi

nished the

job,” eja culating quite a bit on a pillowcase that he grabbed from a bedside table. Af ter ejaculating, the victim claimed that the appellant went into the bathroom and cleaned himself up. When he emerged from the bathroom, the victim claimed that he acted as if nothing

had happ ened. The appell ant told the victim that he also worked some hours at No rt on Ho sp it al in a n ea rb y V irginia townand that she could call him there. The appellant instructed her to say

that she was his cousin when she called.

After hearing the victim’s claims, I nvestigator Richmond-McCauley instructed the vict im to place a call to the appellant at Norton Hospital. Investig ator Richmond-McCauley pr ovided the victim w ith a tape recorder to record the conve rsation and instructed the victim to try to g et the appellant to admit to the incident during the phone call. A phone call was placed to Norton Hospital and a message was left for t he appellant to return the call. Approximately two hours later, the appellant returne d the cal l and the v ictim rec orded the

convers ation. I

nvest igato r RichmondMcCauley wa s not present during the telephone conversation.

As a result

of the victim’s allegations, the Sullivan County Gr and Jury indicted

the appellant
oncharges of

rape in February

of 2001. A lengthy

trial was held in November of 2001. During the trial, the victim maintained her version of the events and stated that she did not report the incident while still a patient at the hospital because she was “just scared” a nd “just clammed up.”

At tria l, the jury learne d that the victim had a history of psy chiatric problems. The vict i m admitted that in 1991 she faked an attempted murder in order to get sy mpathy from her husba

nd. 1 During this incident, the victim shot herself and blamed it on an unidentified assailant. The victi m also admitted that she was a patient at Woodridge Psy chiatric Hospital in 1996 after she ingested 95 pills in an ap paren t suicide attempt. During this visit, the victim was diagnosed with adjustment disorder with disturbance of emotion and behavior, moderate to severe major r ecurrent depression and persona lity disorder . The vic tim

also admitted that she again attempted suicide in 1998 and was again admitted to Woodridge after ingesting 40 pills. At that time, the victim wa s diagno sed with major depression, severe and recurrent psy chosis, poly-substance de pendent, dependent borderline traits, marital discord , and social isolation. At the time of the trial, the victim was under the2 Du ring her hosp ital stay, the victim was tak ing a he avy sch edu le of narcotics f or pain. The vict im had what

was described by several me dical perso nnel as a strong intraven ous su pply o f both p hene rgan a nd d eme rol. T he victim was also given so ma, ativ an, pr evac id, a ho rmo ne, and a dru g to assist in d igestion

. -4- influence of several phy sician prescribed narcotics. On the day

of her testimony, she admitted that she had ta ken L ortab, Soma and L orazepa m. Duringher testimony, the vi ctim also admitted that as a result of the incident at Bristol Regional Memorial Hospital, she had filed a lawsuit aga inst the appellant and

the hospital for one million dollars.

At trial, there was testimony f rom numerous nurses charged with the ca re of the victim during her stay at the hos

pital. Pame la Blant

on, Susan Je ssee and

Gay la Hodge all testified that they had contact with the vi ctim both

before and

after the alleged incident. All three nur ses maintained that the victim never mentioned to an y of them that she had be en assaulted, raped, or that any thing upsetting or distressing had happened to her. In f

act, none of the nurses noted any difference in the victim’s behavior

after the alleged incident occ urred. The nurses also testified that throughout her st ay, the victim requested her pain medication be administered ear ly and that

she be give

n more pa in medication than prescribed by her doctor. 2
During the defense proof, the appe llant took the stand on his own behalf. He testified that the victim’s feeding tube procedure wa s completed without complica tion and that he was r esponsibl e for monitoring the victim after the procedure and administering additional medication to the victim during recovery

to relieve her pain. The appe llant remained with the victim in the recovery room for approximately ten minutes after the procedure was completed. On Tuesday, O ctober 24, the appellant claimed t hat he vis ited the victim

in her room after checking her chart at the nur ses station. He stated that it was normal surgical procedure to follow up with patients after their surgery . During this visit, the appellant claimed that he verified

that the victim was having no problems with recovery from anesthesia. The appellant claims that thevictim requested that the appellant assist her in her next surgery

. A ccordin g to the a ppellant , the vict

im wanted to know how she could reach him to make sure that he was in cha rge of h er a nes th esi a. In response to her que stion, the

appella nt told the v

ictim that she could call the h ospital an d ask for him
or that she could call him at the hospital in Norton, Virginia, because he wor ked at that facility as well. The appe llant told t he vic tim if she c ould

not get in touch with him to tell the person that answered the phone that

she was his cousin, and she would be more likely to speak with him rather thanleavi ng a mes sage. T he app ellan t tol d the v icti m that , accor ding t o her chart, n o additional surgery was schedule d, but that

he could c

heck he r chart at a late r time to see

if the date of the next surgery was set. The appellant claims that he left the room that afternoon w ithout incident after staying f or about five minutes.

OnOctober

25, 2000, t

he appe llant cla

ims that he

was on tra

uma call inthe operating room of the hospital at about

7:00 p.m. After finishing with a surgery , the appellant claims that he checked3 There was te sti mony from both the appel lant

and one of t

he appell ant’ s doct ors th at t he a ppellant had long suff ered from p rostate pro blem s, includ ing pro statitis. The re was testimo ny indic ating t hat prost atitis of ten caus es secretions of prostatic fluid from the pe nis. The appel lant oft en compl aine d aboutlea kin g uri ne or pr osta ti c fluid f rom his pen is and e ven to ok m edica tion for th e con dition.
-5- the victim’s chart

to see if more surgery

was scheduled. The appellant went to the victim’s room to inform her

that there was still no surgery scheduled on her chart. The appellant maintains that the victim asked “whether his wife knew about them.” The appellant stated that he did not know what the victim was talking about. At that point, the appellant claim s that the vi ctim asked for mo re drugs like the ones used during surgery

. When the appellant refused to give the victim more medication, he claims that the victim grabbed him in the gro in and told him that she would cry ra pe unless he complied. The appellant cou ld not ex tricate his groin from her grip but eve ntually pushed the victim’s arm away . When the victim gr abbed the appella nt’s gr oin, he exc

reted some prostatic

fluid onto his scrubs. 3 He went t o the bath room, wipe d off the

fluid with

a pillowc ase he found, threw the pillowcase in the bathroom floor and immediately left the

room. The

appella nt did not r

eport this incident to any hospital

personnel and instead immediately re turned to his duties in the operating
ro om . T he ap pe ll an t h ad no fu rt he r c on ta ct wi th th e v ic ti m d ur in g h er ho sp it al st ay. The appellant also testified that he received a tele phone call from the victim while he was working in Norton, Virginia. He claims that he did not understand the majority of the things that the victim was talking about , but agreed with every thing she was say

ing because he believed she wa s psychotic. The appellant claimed that his medical background le d him to belie

ve that it was better to pacify the victim during the conversation rather than arg uing with her.

At the conclusion of the week-long trial, the jury found the appe llant not guilty of rape but guilty of the lesser-included offense of sexual battery . The trial court denied the appellant’s request for judicial d iversion , sentenc ing the a

ppellant instead to

a one-ye ar

sentence as a Range I

Standard Offender, but suspended that sentence pending the appellant’scompletion of two year s of probation. The trial court also imposed a $3,000 fine recommended by the jury.

The appellant filed a

timely motion for new trial in which he argued that: (1) the finding of guilt was totally inconsistent with the proof; (2) “ credible evidence presented by both the state and the defense . . . preponde rates against the guilt” of the appe llant; (3) the trial court erred by instructing the jury that the tape-recorded conversation between the appellant and the victim was an admission of gui lt by the a ppellant; and (4) the trial court erred in failing to g rant the appellant judicial diversion. The trial court denied the motion for new trial.

Onappeal, the appellant argues that the trial court incorr ectly cha rged the jury

regarding the tape-recorded

statemen t, incorrectly

allowed Dr. Levine, the vi ctim ’s doc tor, t o test ify regardi ng a conversation

he had wi

ththe victim several weeks after the alleg ed incident and that the evidence is insufficient to sustain the conviction for sexual battery.-6- Waiver

The appellant argues on appeal that the trial c ourt erred “in allowing the testimony of Dr. Scott Levine reg arding the victim’s recounting of the alleged assault several weeks or months after the event.” Specific ally , the appe llant arg ues that the victim di d not report the ev ent to Dr. Levine until four to eight weeks after it happene d and, therefore, the trial court erre d in instructing the jury that the state ment made

by t he victim t

o Dr. L evine wa s a prior

consiste nt stateme

nt. The State argues that the trial court

correctly instructed the jury

regar ding the statemen t made by the victim

to Dr. Levine.

Neither party has notice d that this issue was not raised in the motion f

or a new trial. Rule 3(e) of the Tennessee Rules of Appellate Procedure provides that for appe als “in all cases tried by
a jury, no issue presente d for review shall be predicated upon er ror in the admission or exclusion of evidence, jury

instructions grante d or ref used, . . . or other

ground upon which a new tr

ial is soug ht, unless the same was specifically stated in a motion for a new trial; otherwise such issues will be treated a s waived .” Tenn. R. App. P. 3( e); see also State v. Ma rtin , 940 S.W.2d 567, 56 9 (Tenn

. 1997) (holding that a defendant relinquishes the rig ht to argue on appeal any

issues thatshould have been presented in a motion for new trial).

Inthe case herein, theappellant failed to raise the issue rega rding Dr. L evine’s

testimony

in
a motion for

new tria l. Thus, we

can con sider the

appella nt’s arg ument only

if the state ments qualify
as plain error

under Tennessee Rule of Criminal Procedure 52(b). I n exercising our discr

etion as to wh ether plain er ror review unde

r Tenne ssee Rule

of Crimina

l Procedu re 52(b) is appropriate , th e Tennessee Supreme

Court has directed that we examine five factors, all of which must be pre sent ina case i norder for review

under Rul e 52(b) t

o be appr opriate . These f

ive factors are

as follow s: (1) the rec ord must c learly establish what occ urred in the trial court; (2) a clear and

unequivo cal rule of law must have been breached; (3) a substantial rig ht of the defe ndant must

have be en adve

rsely affected; (4) the accused did not waive the issue for tactica l reasons; and (5) c onsideration of the
error is neces sary

to do substa

ntial ju stice

. State v. Smi th , 24 S.W.3d 274, 282-83 (Tenn. 2000) (citi ng State v. Adkisson , 899 S.W.2d 626, 641 (Tenn. 1994)).

For a “substantial right” of the accused to have be en affected, theerror must have prejudiced the appellant. In other w or ds, it must ha ve affe cted the

outcome o f the tria

l court pr oceedin gs. United States v. Olano , 507 U.S. 7 25, 732-3 7 (1993) ( analy zing the s ubstantia lly s imilar Fe d. R. Crim. P. 52(b)) ; Adkisson , 899 S.W.2d at 642. This is the same type of inquiry as the harmless error analy sis under Tennessee Rule of Appellate Procedure36(b), but the appellant bears the burden of persuasion with respect to plain error claims. Olano , 507 U.S. at 732-37.

Inthe case herein, we are not persuaded that the appellant has suc cessfully ca rried his burden of persuasion in establishing a plain error claim. The appellant does not even acknowledge the fact that he failed to raise the issue in a motion for new t rial an d does not argue that the trial court’s decisionto admit the evidence and instruct the jury that it was a

prior consistent st

atement was plain
error. Additiona

lly, the only

authority the appe llant cite s for hisargument is a treatise on evidence.4 According to both the appellant and the victim, when the victi m inquired about having the appellant perform

her anesthe sia for a fu ture surg ery, the ap pellan t told her that t he best way to ensure t

hat she got i n touch wi th hi m was to call the hosp ital and le ave a messa ge that sh e was h is cous in.
-7- Further, there is

no indication that a substantial right of the appellant was adversely affected, that the appellant did notwaive the issue for tactical reasons, or that consideration of the e rror is necessary to do substantial justice. Finally, it is unclear wha t “clear and unequivocal rule of law” was broken. We cannot

conclude that the tr

ial cour t committed

plain er ror. This issue is wi

thout meri

t. Tape Recording as “Alleg ed Admission”

The appellant next contends that the trial court erred in instructing the j ury that the taped conversation

between the victim and the appellant was an ad mi ss io n a ga in st in te re st . S pe ci fi ca ll y, the appellant ar gues tha t: (1) “[d]uring this conversation, Appellant made no admission of wrongdoing

or any criminal ac

tor activity whatsoeve

r;” (2) the trial court erroneously characterized the appella

nt’s state ments and

response s during

the telep hone con versation as admis sions; and (3) the trial court’s instruction improperly influe nced the jury in their

consideration of the statemen ts and response s made dur

ing the c onversa

tion. The S tate argues that the trial court properly instructed the jury.

At trial, during the victim’s testimony, the State introduced a tape recording of a tele phone conversation

between the victim and the appellant. The tape-re cording was made by the victim afte r being instructed

by th e p ol ic e t o d o s o. Th e t el ep ho ne co nv er sa ti on , l as ti ng ap pr ox im at el y tw en tyfive minutes, was played a t least twice in its entirety during the trial, both during the testimony of the victim and the testimony of the appe llant.

At the instructiono f Investigator Richmond-Mc Cauley, a telephone call was placed to the hospital in Norton, Virginia, where the appellant was work

ing. The victim wa s initially

unable to reach the appellant but

left a message say

ing that she was his cousin and that he should return the phone call. 4 The appe llant ret urned the phone ca ll later that night

afte r Inv est igator RichmondMcCauley

left the victim’s home. The fo llowing recitation of the telephone call is from the transcript of the tape submitted to the jury. The beginning of the conversation ce ntered around the victim’s recovery

from surgery . She described to the app ellant tha

t she was “ doin

[sic] better” but that she had gotten a rash on her stomach af ter the procedure that had to be treated with medication. The appellant showed sympa thy for the victim

and from his commen

ts appea red to be interest ed in the victim’s recovery

and progress. The victim then inquired about the appellant’s work

schedule and found out that he staye d in a hotel while working at the Norton hospital.

The victim expla

ined that sh e “just wanted to talk” to the appellant because she had not talked to him “since . . you know y oucome [sic] u

p to the room the other night.” She told him that she “thought . . . [he] would come up the next morning or day to say, . . . goodbye

or call . . . [her].” The victim talked to the appellant about the fact that she had asked him to do the

anesthe sia

for her next surgery . The victim then changed the subject, say ing “I just don’t [want] y

ou [to] think that I-8-

just let any man to . . . uh y

ou know, come into the room, or . . . . Well, I’m not easy .” The appellant responded

that he di d not “thin

k that at a ll” and that “the thought’s never entered my mind.” Then, the following exchange took place: [Victim]: Well uh, us, I wanted to make that very sure . . . [Appellant]: Yeah. [Victim]: . . . because I don’t do this with people, I ’m not, I’m not that way

. . . [Appellan t]: I know y

ou’re not. [Vict im]: . . . and I was very

uncomfortable, y

ou know, when you

put your penis in my mouth and uh . . . [Appellant]: Yeah. [Victim]: . . . and, you know, startled. [Appellant]: Yeah. [Vict im]: And, cause. . . I didn’t know, I didn’t wanna lead y ou or [sic] on or think, make you to believe

that I’m that ty

pe person. [Appellant]: Well I don’t think that . . . [Victim]: I hope you don’ t, cause . . . [Appellan t]: No honey

I don ’t think tha

t.

. . . . [Vict im]: Well, I app rec iat e you sayi ng t hat bec aus e I, I mea n it’s, it’ s bothere d me

. . . . Later on in the conversa

tion, the following exchange occurred: [Victim]: So . . . do you know. . . [Appellant]: Yeah. [Victim]: And . . [sic] the, you know, well you know wha t went on . . [sic] [Appellant]: Oh yeah. [Victim]: I

don’t hav e to repe at it. [Appellant]: Yeah, yeah. [Victim]: And uh, but uh, I didn’t [want] you to think that I’ m an easy pe rson . . . . [Appellant]: No, no, no . . . . [Victim]: . . . . that I just don’t let . . . [Appellan t]: I don’t think that at all. [Vict im]: Um, I’m not that ty

pe person that would just see a person . . uh, b ut yo u know, I saw y

ou were so nice to me . . . [Appellant]: Well you’re such a sweethea rt yourself. [Vict im]: Well, you, I

mean, in, downstairs you started of f and, I mean y

ouwere so nice, kind, and . . . .

That exchang e was fo llowed by a discuss ion betwe en the victim and the a ppellant regarding the appellant’s curren t work sched ule, i nclud ing whe n he wo uld b e back i n Bris tol, worki ng at th e hospital where the victim had her procedure, and whether the appellant would still b e availa

ble to-9-

perform the victim ’s anest

hesia for her upcoming

surger y. T he appe llant fre quently

called the victim “honey” and/or “sweetheart” throughout the c onversation.

Several times duri

ng the c onversa

tion, the victim told the appell ant that she did notwant him to think that she was “ easy .” At one point, the victim commented that she did not want the appellant to think that she “just let anybody that . . . [she’s] known for 3 or 4 day s uh, just come in and start kissing . . . ” to which the appellant merely responded, “Yeah.” The victim also commentedthat “since my husband and I

have been married, that’s the first thing . . . this is the first thing, incident that’s come aro und” and that she f

elt like “ the rip slu

t of the world.” The

appella nt mainly responded with “yeahs” and “nos” to the comments of the victim.

The victim talked briefly about the f act that her

husband was out of town at a conference at the time of the

phone ca ll and told the appe llant, “[P]lease, please, whatever y ou do, uh, you know, what hap pened . . . .” To which the appellant replied, “Yeah, I know, I mum’s the word.” The conversation

then changed pace and

the victim

and the appellant again talked about the appe llant’s work schedule for the upcoming week an d how t he vic tim w ould go about g etting in touch with

him.

Two times d

uring the conve

rsation, the victim

brough t up a pillowcase: [Vict im]: A nd I d idn’t uh, I didn’t know what to do uh, with, y ou know, the pill owcase so I just put i t in a l aundr y bag. [Appellant]: OK. [Victim]: With the linen, was that . . . [Appellant]: Yeah. [Vict im]:

. . . cause I, y

ou know, where y

ou pitched it under

the sink I didn’t know

. . . . [Appellant]: Yeah. [Vict im]: I sai d well may

be I ought to get that up cause that doesn’t look lik

e a towe l, and they mig

ht be a little suspicious on that.

. . . . [Vict im]: And, and l ike I

say , yo u know, whenever

at the en d, when y ou did the thing on the pillowcase . . . [Appellant]: Yeah, yeah. [Vic tim] : . . . and to ok it in th e bath room a nd I got ri d of ev erything. [Appellant]: Well good. [Victim]: I didn’t . . . I think the tech would have sa id why is she washing

with a ba. . . , with a pillowcase . . . . [Appellant]: Oh no, no, no. [Victim]: . . . . and pulling [sic] it under the sink. Finally, as the c onversation was coming to a close, the following e xchange occurred:-10-

[Vict im]: Well, uh, ta

lk, yeah I ’ll talk to

you Monday, but uh, bu

t still, you know, you know, when. . . I still

feel a li ttle unco mfortabl e you know, w hen y ou know, y

ou put, you know. . . [Appellan t]: What? [Victim]: . . . . in my mouth and I . . . . [Appellant]: Yeah. [Victim]: . . I, y

ouknow, makes you un. . . y ou know, I didn’t know y a, I didn’t. . . [Appellan t]: I know that. [Victim]: . . . . and then, so . . . . [Appellan t]: I don’t want y

ou to worr

y a bout that. [Victim]: Well, that’s why I, y ou know, when I did that and, [Appellant]: Well I thought . . . [Victim]: I said stop you know I , I didn’t, I ’d never been put in that position. [A pp el la nt ]: Ye ah , I’ m s or ry. [Victim]: You

know, y our penis

. [Appellant]: I know. [Victim]: But uh, so I’m not embarrassing y a I hope. [Appellant]: No. [Victim]: But I just wanted to clar . . . . [A pp el la nt ]: I ju st do n’ t, I ju st do n’ t w an t yo u t o w or ry. [Vict im]: OK, well I apprec iate that and . . . but I just wanted to let y ou know tha t I’m uh , I d on ’t do th is ev er y da y. No objections wer

e made to the introduction of the tape-recorded conversation. When the appella nt took the

stand to te stify , he explai ned the c onversa

tion with th e victim a s follows:

Ihad ascertained by

what happened in the room that I was dealingwith someone that had some ser ious psy cholog ical pro

blems an d espe ciall y when she s tarte d saying, “Does your

wife know about us?” And I - - - - she started talking pretty bizarre a

nd I’ve been in the medic al field like over forty ( 40) year s total and Ijust remembered whatI wa s taught in school that someone’s - - - and - and I ’m not trying to b e facetious or anythi ng. I just remember what I was trained. If someone

starts talking erratic or - or saying

- - - you know, like ha llucinating or - or fantasizing or somet hing, you don’t intimidate them. You don’t make them mad. You don’t make themhostile. Y ou - y

ou just try to pacify

them and get - - - - basically I just wanted to get her off the phone.

The appellant further explained that he thought t he victim was talking

about g rabbing his groi nafter he refused to give her more medica tion when she talked about being “easy ” and that he did not know what to think when she started talking about his penis.

Onappeal, the appellant “contends that his response s do not ris e to the le vel of a s tatement , as intended under the definition of the Tennessee Rules of Evidence nor und er the de finit ion of5 We note tha t in order to be cons idered an admi ssi on agains t in teres t under t he Helton

standard, the st atement must only co ntain an “acknowledgment by the accused of certain f acts which t end together with other facts, to establish his gui lt .” 547 S. W.2d at 567. Th ere is no requ ireme nt, such a s there is for the “st ateme nt a gain st int eres t” e xcept ion to the hearsay rule, that the s tate ment must

be agains t th e declaran t’s pecu niary or pro prie ty interest o r must ten d to subje ct the d eclara nt to civil o r crimin al liability at the tim e the state men t is mad e. See Tenn. R. Evid. 804(b )(3).
-11- assertion adopted by

the court in State v. Land [34 S.W.3d 516 (Tenn. Crim. App. 2000)]” and that the trial court’s

decision to charg e the jur

y on admission a

gainst i nterest i mproper ly influenced the jury’s verdict.

In Helton v. State , 547 S.W.2d 564 (Tenn.1977), the Tennessee Supreme Court set forth a definition for admissions against interest. The Supreme Court stated:

The di st in ct io n b et we en an ad mi ss io n a nd a c on fe ss io n i s b lu rr ed . G en er al ly, however, “a ‘confession’ is a s tatement by the ac cused that he engage d in conduct whichconstitutes a crime. . . . An admission is an acknowledgment by the accused of certain facts which

tend together with other facts, to establish his guilt; while a confession

is an ack nowledg ment of g uilt itself . An admis sion, then , is something less than a

confession

and, unlik

e a conf ession, . . . an admis sion is not su fficien t in itself to support a conviction.

Id. at 567 (quot ing 3 Wharton’s Criminal Evidenc e (13 ed. Torcia 1 973), §§ 6 62 and 663 ); see also State v. Kyg er , 787 S.W.2d 13, 23 n.2 (Tenn. Crim. App. 1989). While the statements made by the appellant during the telephone conversation here in are certainly not a confession, the statements can be construed as an admission against interes t. 5 See gener ally Stat e v. An toni o George White , No. 775, 1987 WL 25166, at *1 (Tenn. Crim. App. at Knoxville, Dec. 1, 1987) (stating that defendant’s statement denying involvement in the crime but admitting being at the crime scene w ith another perpetrator

was an admission under Helton ). During the conversation herein, the appellant admitted that he was in the victim’s room and responded p ositively to questions, which, when considere d along with the victim’s version of the events, tend to establish the appellant’s g uilt.

Becau se we have determined that the appellant’sstatement can be construed as an admission against interest, we must determine if the trial court prope rly char ged the jury . Defendants have a “constitutional right to a correct and complete cha rge of the law.” State v. Teel , 793 S.W.2d 236, 2 49 (Tenn. 1990). Accordingly , trial courts have the duty to give “a complete charg e of the la w applica ble t o the fact s of the case.” State v. Davenpor t, 973 S.W.2d 283, 287 (Tenn. Crim. App. 1998) (citi ng State v. Harbison , 704 S.W.2d 314, 319 (Tenn. 1986)). There is no requirement that
a trial court

be limited to using pattern jury instructions. State v. We st , 844 S.W.2d 144, 151 (Tenn. 1992). When reviewing challenged jury instructions, we must look at “the charge as a whole in determiningwhether prejudicial error hasbeen committed.” In re Estate of Elam , 738 S.W.2d 169, 174 (Ten n. 1987); see also State v. Phipps , 883 S.W.2d 138, 142 (Tenn. Crim. App. 1994).

At the con

clusion of the trial , the tria

l court instructed

the jury as follow s:-12-

Alleged statement against interest. Evidence of an all e ged admission has been introduced

in this cas e. An adm

ission is an

acknowl e dgment b y th e defendant of certain facts wh ich ten-which ten

d, together with

other fa cts, to establish

his guilt. It must be corroborated by other independent evidence to warrant a nd support a conviction.

The Court has permitted the - the alleged admission as evidence, but it remains y our duty to decide if, in fac t, such statement

was ever made and if such alleg ed statement
was an a dm is si on. If

you do not believe it was ever made, y

ou should not consider it. If y ou decide the state ment was made, y

ou must the

n judge the truth o f the fa

cts stated and if the al leged s tatement was an admission. In determining whether the statement is true and an admission, you should c onsider the circumstances under whichi t was made. You should also consider whether any of the other - other evidence before

you tends to c ontradict the state ment in whole or in part. You should notarbit rari ly disreg ard any pa

rt of the statement, but should consider all of the statement you believe to be true and if it is an adm

ission - an

d if it is an admission.

If you find the statement is true a nd an - and - if y

ou find the statement is true and [an] admission, you

are the sole judg es of the

weight that - th at shoul d be giv en it. You should con sider it a

long with all the other evidence in the case in determining the defendant’s guilt or innocence.

The trial court

also informed the jury tha t it was the ju ry’ s p ro vi nc e t o d et er mi ne wh at we ig ht , i f a ny, the st at em en ts pr ov en in th e c as e s ho ul d c ar ry. The court additionally infor med the jury that it might take an y s tatement in co nsideration with all the other facts and circumstances prove n in the case. Elsewhere in the instructions, the trial court instructed the jury as to cre dibility of the wit

nesses, stating in pertine

nt part:

You are the exclusive judges of the credibility of the witnesses and the weight to be given to their testimony. If there ar e confli cts in

the testimony

of diffe rent witnesses, you must reconcile the

m, if you can, without hastily or rationally conc luding that any witnesshas swor

n false ly for th e la w pr esu mes th at a ll wit nes ses are tru th ful . In forming your opinion as to the cre dibility of a witness, you

may look to the

proof, if
an y, of his general

charac ter, the evidenc e, if any

, of the witness’ r

eputation for tru

th and veracity, the

intelligence and respectability of the witness, his interest or lack of inte rest in the outcome o f the tria l, his fee lings, hi s appare

nt fairne ss or bias es, his
means of knowledge, the reasonablene ss of his statements, his appe aranc e and demeanor while testifying, his contra dictory statements as to the mate rial matters, if any are shown, and all of the evidence in the case tending to corroborate or t o contradict him.

After reviewing both the tape-recor ded conversation and the c orresponding jury charge, we conclude that the trial court properly

gave the instruction on admission. Further, the trial court’s instruction-13-

clearly stated that it was the jury ’s responsibility to determine whether the appellant had made any admission and

if he had, to determine whether the statements were entitled to any weig

ht. The jurors
were additionally instructed that they were the sole judges of the facts and of the law as it applied to the facts in the case. W e conclu de that th e trial c ourt’s instructions containe d an ade quate statement of the l aw. Althoug h the pattern jury instructions do not contemplate an “alleged” admission against interest, the instruction provided is otherwise virtually identica l to the instruction
onadmission a

gainst i nterest c ontained

inthe Tennessee Pattern Jury Instructions. See T.P.I .– Crim. § 42.11(a) (4th ed.1995). The trial court in the case he rein merely

changed the la nguage in th e charge from“ admission” to “alleged admission.” This dilution of the jury charge by

addition of the modifier “alleg ed” cou

ld only have inur

ed to the a

ppellant ’s benef

it.

It was the r espons ibility of the jury to determine whether these statements were made , whether they were tr uthful, a nd what we ight the

statemen ts should have been given in determining guilt or innocence. In our

view, the instruc tion was prop er. It allowed the jury to consider the surroundingcircumstances and de te rmine, in proper context, if the defendant was acknowledg ing
cu lp ab il it y. That was the co rr ec t p ro ce du re . In su mm ar y, it is our view that the trial court provided essentially corr

ect and adequate instructions to the jury . This issue is without merit.

Sufficiency of

the Evidence

When a defendant challenges the suf ficiency of

the evidence, this Court

is obliged to review that claim according to certain wel l-settle d principles. A verdict of guilty , rendered by a jury and “approved

by t he trial j udge, a

ccredi ts the test

im ony of the” State’s w itnesses a nd resolv es all conflic ts inthe testimony in favor of the State. State v. Cazes , 875 S.W.2d 253, 259 (Tenn. 1994); State v. Harris , 839 S.W.2d 5 4, 75 (Te nn. 1992) . Thus, al

though the accus ed is originally c loaked with a presumption

of innoce nce, the jury verdict of guilt y r emoves th

is presumption “and replaces it with one of guilt.” State v. Tu ggle , 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, th e burden of proof rests with the defendant to demonstrate the insufficiency of the convicting evidence. Id. The rele

vant question the re

viewing court mus t answer

is whethe r any rationa l trier of fact co uld have found the

accuse d guilty

of every element of the offense bey

ond a reasonable doubt. See Tenn. R. App. P. 13( e); Harris , 839 S .W.2d at 75. In making this decision, we are to a ccord the State “the stronge st legitimate view

of the evidence as well as all reasonable a nd legitimate inferences that may be drawn therefrom.” See Tuggl e , 6 39 S. W.2d at 914. As such, this Court is precluded from reweighing or reconsidering the evidence when evaluating the convicting proof. State v. Morgan , 929 S.W.2d 380, 383 ( Tenn. Cri m. App. 199 6); State v. Matthews , 805 S.W.2d 776, 779 (Tenn. Cr im. App. 1990). Moreover, we may not substitute our own “infere nces for those drawn by

the trier of fact from circumstantial evidence.” Matthews , 805 S.W.2d at 779.

Inthe case here in, the appellant was charged with rape , a violation of Tennessee Code Annotated

section39-13-503. After hearing all the evide nce at trial, the jury convicte d the appellant of the lesser-included offense of sexual battery , a violationof Tennessee Code Annotated section 39- 13-505. Se

xual batter

y is defined as:-14-

[U]nlawful sexual contact with a victim by the defe ndant or t he defe ndant by a victim accompanied

by any of the following circumstances: (1) For ce or coerci on is used t

o accompl ish

the act; (2) The sexual contact is accomplished without the consent of the victim and the de fendant

knows or has reas on to know a t the time of the contact

that the victim did not consent; (3) The defendant knows or has reason to know that the victim is mentally defective, mentally incapac itated or phy sically

helpless; or (4) The sexual contact is accomplished by f raud.

Sexual cont

act inclu des: [T]he intentional touching of the victim’s, the defendant’s, or any other person’s intimate parts , or th e inte ntio nal to uchin g of the clothing covering the immediate area of the victim’s, the defendant’s, or any other persons intimate parts, if that intentional touching can be reasonably construed

as being for thepurpose of sexual arousal or gratification Tenn. Code Ann. § 39-13-501.

Inthe case herein, the State’s proof consisted primarily of the testimony of the victim. The victim’s story, recounte d in detail above, included allegations that the appe llant came to her hospital
roomin the middle of the ni ght, k issed her against her will, forced

her to tou

ch his er ect peni s, exposedhis genitalia to her, and forced his pen is into her

mo uth. Further, she testified that he masturbated

to ejacu lation in he

r prese nce. The re was no testimony

to corro borate t he vic tim’ s versionof the events. The defense proof consisted primar ily of the testimony

of the appellant. The appellant admitted that

he visited the victim’s hospital room, but he denied that he had any

type of sexual contact with her . Instead, he testified that the victim demande d medication and, when he refused to provide that medication, grabbed him in the groin and threate ned to “c ry rape” i f he did notcomply. Accor

ding to the appellant, the victim’s grasp on his g roin cau sed him to se crete prostatic fluid that he cleaned off with a pillowcase that

he found in the bathroom. The appellant claimed he then f led the r oom. The a

ppellant also testi fied th at he agreed with all the

statemen ts made by the

victim during the telephone conversation to “pacify ” her because he thought she wa s crazy.

It is not the duty

of this Court to assess the credibility of witnesses on appe al, that function is the duty of the trier

of fact. See gener

ally , State v. Adkins , 786 S.W.2d 642, 646 (Tenn. 1990); State v. Burlison , 868 S.W.2d 713, 718-19 (Tenn. Crim. App. 1993). Considering the testimony of the victim, along with the tape-recorded telephone conversation, as we l l as the testimony of the appe llant, ther e was suf

ficient e vidence to support

the jury ’s verdi ct of sexua l battery . The ca se herein truly present s the classic “he said/she said” scenario. Becau se of the nature o f the alle gations , witnesscredibi lity

no doubt pla

ye d a cruc ial role a

t trial. As noted, the determination of the weight and the cre dibility

of the te stimony

of witnes ses and r

econcil iation of c onflicts i nthat testimony

are matters entrusted exclusively to the trier of fa ct , i n t hi s c as e t he ju ry. State v. She ffield , 676 S.W.2d 542, 547 (Ten

n. 1984). The jury

herein resolved the question of witness credibility upon re ndering-15-

a verdict of guilt for the lesser-included off ense of s exual batte

ry . Impl icit in the

jury ’s verdi ct is determination

that the victim was a credible witness. We conclude that the evidence presented a t trial was sufficient for a rational trier of fa ct to find the essential elements of sexual battery beyond a reasonable doubt. This issue is without merit.

Conclusion For the foregoing r

easons, the judgment of the trial court is affirmed.

___________________________________ JERRY L. SMITH, JUDGE