It is the p o licy o f t h is c o u rt to re fer to vic tim s o f sex u a l cr im e s b y the ir initials. 1 

### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE

AT KNOXVI LLE A ssi gne d on Br ie fs Ja nua ry 30, 200 8

STA TE OF TEN NES SEE v. RO BER T C AS H

Appeal f rom the Cr im inal Cou rt for Bradley County No. 05-558 Am y A. Ree dy, Jud ge

No. E2007-00720-CC A-R3- CD - F iled May 2, 2008

T h e d ef en d an t , R o b er t C as h
, ap p ea l s h i s Br ad l ey C o u n t y C ri m i n al C o urt co n v i ct i o n o f o n e c h ar ge of ag g ravated sexual battery of a person under the ag e of thirteen, a lleg ing that there w as insufficie nt evidenc e to prove intent. We find that the evidence presented at trial was sufficient and affirm the jud g me nt o f t

he tr ia l c ourt

. Tenn. R. App . P . 3; Judgme nt of th e Cr im inal Cou rt A ff irm ed

J A M ES C UR WO OD W I TT , J R ., J ., delivere d the opinion of the cour t, in which N OR MA M C G EE O G LE and D. K EL L Y T HOMAS , J R ., J J ., joined.

Se a n G . Wil liams, As sis tant D istri c t Pub lic De fe nd e r ( a t tr ia l) ; and Ric ha rd Hu g he s, Di str ic t Pu

bli c Def ender (on appe al), for

the appe llant, Robert Cash.

Rob e rt E. Coo pe r, Jr. , A tt o r

n e y G e n e r a l a n d R e po rt e r; B e nja

min A. B a ll, As sis tant A tto rn e y Ge ne ra l; and Andr ew M. F reibe rg and J ohn Wil liams, A ssistant District Attorney s Gene ral, for the appe llee, State of Tenne ssee.

OP IN ION

On Octobe r 26, 2005, the Bradley County Gra nd J ury indicted the def

endant on one ch ar ge o f aggra

vated se x ual batter

y of a pe rson under

the ag e of thirtee n, a Class B f elony

. See T.C.A. 39-13-504( a) ( 4) (2003) . A jury convicted the defe ndant of the c harg e on J uly 26, 2006, and on De cembe r 1, 2006, the trial c ourt sentenc ed the de fenda nt to serve eig ht y ear s at 100 perc ent in the Depa

rtment of Corre ction.

At the t rial, t he victim
, L .C. , testified t hat s he knew the di ffe renc e betwe en rig ht and 1 wrong , as we ll as the importance of t elling the truth in court. She stated she w as then seve n y ear s old and was six at t he ti me of the i ncident. She knew the defe ndant’s family and wa s a fr iend of the-2-

de fe nd a nt’ s da

ug hte r, L ., wh o w a s aro un d h e r a g e . Sh e te sti fi e d th a t th e of fe ns e oc c ur

re d o n A ug us t 14, 2005, when she and L . spent the nig ht at the def endant’ s home. The two g irls wer e asleep in the defe ndant’s bed, a

nd when they

went to bed the de fenda nt an d h i s wi fe we re on the couch in a differ ent room.

L .C. te sti fi e d th a t th e de fe nd a nt c a me in t he be dr oo m “ thr e e or

fo ur ” tim e s th a t ni g ht. She said, when he first enter ed the be droom, the defendant did not do or say any thing to her. The

se c on d ti me “ he a sk e d me if I wa nte d him to do it

. . . . He , he jus t ask e d me if he , if I wa nte d h im to r ub on my pr ivate a re a .” She re fu se d, bu t th e de fe nd a nt d id i t any wa y . “ He lik e ru

bb e d o n my private [with his hand] and he was kissing me with his tongue all at the same time. . . . He just said, ‘How doe s that fee l? ’ and ‘This will be our littl e secr et.’” L .C. said that the defe ndant was r ubbing

on top of the c lot he s sh e wo re to b e d, a

sh ir t and pa nti e s. Th e kis sin g wa s on he r n e c k. L .C. c ou ld not say how long the incident lasted.

L .C. testified that she did not know if L . was a wake when the inci d en t t o ok place

. She thought the de fenda

nt was aw ake dur ing the incident bec ause she “saw his ey es open.” She thought the de fenda

nt’s wife r emained on the couch dur ing the offe nse bec ause the bedroom door was ope n when the offe nse occurre d, and “the TV was g oing and t he kit chen light was still on.” She testified that the def

endant lef t the bed whe n his wife cal l ed h i m b ac k into the other room, but he returne d later to the be droom and “just laid there.” L .C. testified that she told her mother a bout the incident two day s later.

L .C.’ s mother, Michelle C., testified tha t her fa mily had bee n friends w ith the defe ndant’s fa

mily for “ probably

five or six y ear s.” Prior to the offe nse, the fa milies would spend tim e tog e the r “ a

bo ut e ve ry we e ke nd a t le a st. ” She sa id that Au g us t 14 , 20 05 , w a s th e la st t ime L .C.

was a t the defe ndant’s home f or a sleep over. U

p to that point, she trusted the defe ndant with her da ug hte r. Ms. C. t e sti fi e d th a t th e fo llo wi ng da y L .C. wa s quie t but n ot u nu su a lly so . Sh e sa id L .C. told her about the incident t hree day s later. A fter she discussed wha t happene d with her husband, the y de c ide d to g o to the a

uth or iti e s.

Ms. C. testified tha t she and he r husband took L .C. to Cl evela nd Communi ty

Hospital that eveningfor an examination. A police office r ca me to the hospital that eveningand made a repor t. The off

icer told them not to confront the def endant. How ever , a fe w wee ks later, Ms. C’s husband conf

ronted the de fenda

nt while their family

was visiting the home of Jennifer Gibby at Br adley Place Apa

rtments. The c onfrontation took pl ace in the parking lot of the apa rtment complex when the de fenda

nt “just arrive d” unannounced with his wife and daug hter in the c ar w ith him. S he testified that her

husband told the defe ndant to leave the premises but that the defe ndant was be ing ag g ressive a

nd “che sting up.” She said that afte r “two or three ” che st bumps, “I g uess my husband ha d e n o u g h o f i t a n d h i t h i m t w o t o t h r e e t i m e s a n d h e c r a w l e d o r g o t o n t h e g r ou nda ndthe n my husband p roce eded to kick him a f ew times.” A fter he g ot up, the defe ndant went ba ck in her husband’s fa ce a

nd-3- He wa s at t h at t i m e i n [ s i c] v ery em o t i o n al
, fr ea k i n g o u t , Is ay cr y i n g,
a nd say ing , “ Ye a h, ok a y , I

did it
, bu t it wa s an a c c ide nt. ” My hu sb a nd c on fr on te d h im a bo ut w ha t [L .C. ] ha d to ld u s and

of c ours e he tried to de ny

it and all this, and then Ig uess he broke down a fter that and said, “ Okay , okay
, I did it. Idid it but i t was an a ccide nt. . . . Ineed he lp, Ineed to just kill my self. I would be better

off. Ev e ry bo dy wo uld be be tte r o ff

wi th m e no t aro un d. I ’m

jus t g oin g to kill my self.”

Ms. C. te sti fi e d that the inc ide nt i n th e pa rk inglot la ste d a tot a l of 15 to 2 0 mi nu te s. She said that later that evening the defe ndant made a cellular telephone call to he r. She did not see the inc omi ng c a ll at th e tim e bu t late r n oti c e d s he ha d a mes sa g e

. She te sti fi e d she ha d no d ou bt i n her mind the de fenda

nt left the voi ce mail messag e. The following message was then play ed for the j u r y:
Hey , ah, y ou all ain’t g otta call the law on me. I mean, I don’t know, I ’m just telling y ou, man. I told y ou ever y thing that ha

ppened. Y ou ain’t g otta call the law on me. J ust hell, man, disown me or something, y ou ain’t g otta call the law

.
J ere my C., L .C.’s father , testified that p ri or to the incident he considere d the def e n d a n t “ mo r e li k e a

b r o th e r

. ” T h e y

s p o k e d u r in g th e ir

c o n f r o n tati o n in

th e B r a d le y

Pl a ce Apar tments parking lot, and Mr. C. told the defendant he knew why he needed to leave the sc ene. “[The def endant] denied knowing what I was talking ab o u t , an d I asked him if he ha d made a ny
se c re ts l a te ly . A nd

a t th a t po int

he kin d o f b e c a me a

lit tle up se t.” Mr . C. te st if ie d th a t a ft e r t

he ir phy sical conf

rontation, he a sked the de fenda nt if what L .C. said w as true, and he admitted it. Mr. C

. t es t i fi ed t h at t h e d ef

en d an t ’s t o n e t h en ch an ged
, h e wa s n o l o n ger aggr es s i v e, an d h e b ega n cr y i n g. The de fenda

nt said he did not want people thinking of him as a child molester.

On cr o s s -ex amination, Mr. C. stated that the def endant sa id “he wa s asleep or was sleeping and wa s drea

ming a bout his wife I

think is what he said about it.”

De te c tiv e Sha

un da Ef a w t e sti fi e d th a t sh e ha d b e e n e mpl oy e d by the B ra dle y County She ri ff ’s Of fi c e fo r 1 4 1 /2 y e a rs a nd

ha d b e e n a

de te c tiv e fo r e ig ht a nd on e -h a lf y e a rs wo rk ingc hil d sex abuse case s. She was assig ned L .C.’s case and intervie wed the defe ndant on Aug ust 29, 2006. The interview w as videotape d and ente red into evide nce. O n the video, the de fenda nt stated that L .C. had previously

stay ed over

at their house be cause her pa rents would drink at his residence , and “I told them I didn’t want her riding off with them.” He admitted he had been drinking the evening of the off ense but told Ms. Efaw there was no possibili ty he ever acc identally touched the victim as

a re sult of drinking, stating , “Na h
, n ah
, I d o n ’t get drunk. I just, I drink, Idon’t g et drunk.” The de fe nd a nt s a id t

ha t th e on ly wa

y a ny thi ng c ou ld ev e r ha ve ha

pp e ne d in vo lvi ng him

a nd the vic tim was if the touc hing oc curr ed while he was a sleep when he knew nothing about it. He sug g ested that perha ps someone else touched the victim or that the victim’s father touche d her pr eviously . L ater ,-4-

the de fe nd a nt m e nti on e d th a t th e vic timha d b e e n u ps e t w ithhim

e a rl ie r when he fo rb a de he r t o
smo ke on e of

his c ig a re tte s.
Up on fu rt he r que sti on ing , the de fe nd a nt sta te d tha t he w a s h a vin g a dr e a m a bo ut h is wife, th e n h e w o k e u

p a n d le f t th e b e d to r e tu

r n to th e c o u c h

. “ I ju s t w o k e u p , ( in a u d ible ), I was touching her down there
, I was touching her dow n there and so I g ot up and went to the c ouch.” T he defe ndant then beg an to cr y and stated:

He re , y ou g oin g to t a ke me wi th you no w? You ’v e do ne ta lke d me into say ing it. I

didn’t mean to do nothing. The y are my g irls. I treat them all like m i n e, y o u k n ow. I ’m sorry , but Itell y ou, but Idon’t think it would help I ’m thi n k i n g wi th my arm a round my wife, y ou kn ow , a nd the re jus t a in’ t no thi ng ha pp e ne d. Can I

g o ho me or

a m I g oing w ith y ou all or what? Ijust don’t want to talk about this no

m o r e , yo ug o tt h e t r

u t h
, a n d t h e r e j u s ta i n ’ tn o t h i n g

. J u s tl i k e [ t h e y] tell me that Ineed he lp – no, I don’t nee d help, y ou know.

On cr oss-examination, Ms. Efaw testified that she never interviewe d the victim or examined the bedroom whe re the incident alleg edly took place. She took state ments from the witnesses of the pa

rking lot fistfight, videotape d the s tatement from the defendant, and watche d the i n t er v i ew o f t h e v i ct i m

. M s

. E fa w t es t i fi ed t h at i n h er o p i n i o n , t h e d ef en d an t ’s v o i ce m ai l m es s age was “ an admission of some sort.”

Be verly Cash, the defe ndant’s wife, testified that on the night of the incident, L .C.’s pare nts came to the Cash home and dra nk with the defe ndant.

[T] hey had bee n drinking , and my husband dra nk with them, and af

ter about 30 or 45 minutes that they had bee n there they said, “Well, we

are g oing to the l iquor store.” Well, Isaid, y ou know, “You a ll have been dr in k i n g s o l et the kids stay here and play

beca use they have been, you know, playing, just not very long.” And they

said y es.

This was ar ound 9:30 or 10:00 p.m., a nd by that time, the defe ndant had pa ssed out on the couc h. She testified that they eac h drank a couple of shots of liquor and seve ral be ers. Ar ound midnight she

re a lize d th a t L .C. ’s pa

re nts ha d n ot r e tur

ne d. “ Isti ll s a t in th e li vi ng ro om a nd Ihe a rd my lit tle daug hter c ry .” Ms. Cash said she wa s on the couc h with he r husband, and the children wer e in the bedroom so they

could watc h television and fa ll asleep.

Ms. Ca shte sti fi e d tha t she tr ie d to wa ke the de fe nd a nt s o h e c ou ld t a ke c a re of the ir

c ry ingdau ghter
, who was sh a ri ng the be d w ithL .C. She ha d to sh a ke the de fe nd a nt a nd g ra b h is ha nd to w a ke him

up , but he e ve ntu a lly stumbl e d into the be dr oo m. M s. Ca shhe a rd him stumbl e to t he ba thr oo m 15 to 2 0 mi nu te s lat e r, bu t he did no t com e ba c k. Af te r “m a y be 10 or 15 min ute s” she we nt to the bedroom, whe re she found him sl ee p i n g crossway s on the bed. She tried to wa ke-5-

him and g et him to sleep with her beca use she c ould not sleep without him, but he would not leave

a nd ke pt c a lli ng the name of

the ir da ug hte r a nd re a c hin g ou t f

or he r. Ms. Ca shthe n w e nt b a c k to the living r oom. She testified that when he finally returne d to the couch, he told her “I thought y ou
w e r e i n b e d

w i t h m e , I t h o u g h tw e w e r e g o i n g t o b e d t o g e t h e r

. ” S h e t e s t i f i e d t h a th e a p p e a r e d a n g r y.

On cr oss-examination, Ms. C ash stated that she di d not think the defe ndant was too drunk to g et up and tend to their ill daughte r.

Th e de fe nd a nt t e sti fi e d:

. . . Ifell aslee p, Iwoke up, my hand wa s where it shou l dn’t be, I jump up, I run in the living r oom. I ’m h y s t erical, I ’m embar rasse d, I ’m ashame d, and I

look at my

wi fe a nd Ig et on to her, a

nd

ever y thing se ttled down Ig uess and I we n t b ac k to bed. I woke up the next day , Iwent to work. . . .

Iwas just having drea

m. I don’t know what it wa s , I ’v e had them befor e, and I ’v e just never been in a situation before wher e I ’ve g ot kid s b e sid e me , b ut I

have be fo re a nd

Iwa s h a vin g a

dr e a m.

T h e d ef en d an td en i ed an y

i n t en tt o re ce i v e s ex u al gra t i fi ca t i o n fr o m a ch i l d

. He s t at ed t h at al t h o u gh he did not rec all saying a

ny thing to L .C. as she alleg ed in her testimony , he admitted, “I g uess it’s possible.”

On cr oss-examination, the de fenda nt sta ted, “I believe it’s a case of being an ac cident be c a us e I ’v e dr a nk

fo r, I ’v e pr ob a

bl y dr a nk sin c e Iwa s 1 8 a

nd Ia in’ t ne ve r h a d n oth inglik e thi s happen.” He stated that he repea tedly denied the incident t o people because it was “inhumane ” and shameful, a

nd he wa s scar ed to lose hi s family over an acc ident. He testified that his wife wa s five fee t, fo u r o r f

iv e in c h e s ta ll
, w e ig h e d 1 2 5 p o u n d s , a n d d e f in it e ly h a d a f

r a me th a t c o u ld not be mistaken for a

child. He r epeatedly

denied kissing L .C. on the neck.
The jury found the de fenda

nt guilty , and he f

iled a timely appea l. He cla ims that there was insuffic ient evidenc e to support the finding that his conduct wa s intentional. Specifically , he alleg es that his conduct wa s the result of intoxi cation and mistake of fa ct.

When an ac cused c halleng es the suff iciency of the ev i dence , an appe llate cour t’s standard of

revie w is whether , afte r consider ing the evidenc e in the lig h t m o s t favor able to the prosec ution, any rational trier of fa ct could have found the e ssential elements of the crime be y ond

a re a so na ble do ub t. Te nn . R. Ap p. P. 1 3( e ); J ac k so n v . V irg ini a , 443 U.S. 307, 324, 99 S. Ct . 2781, 27 91 -9 2 ( 19 79 ); State v. Dunc an , 698 S.W .2d 63, 67 (Tenn. 1985) . This rule applies to finding s of g uilt based upon direc t evidence , circ umstantia l ev i d en ce, or a c ombination of direct a nd circ umstantial evidence

. Sta te v . W int e rs , 137 S.W .3d 641, 654 (Tenn. Crim. App. 2003)

.-6- Moreove r, a c riminal offe nse may be esta blishe d exclusively

by circ umstantial evidenc e, Du c ha c v . S

tat e , 5 05 S .W .2 d 23 7 (T e nn . 1 97 3) ; W int e rs , 137 S.W .3d at 654; howeve r, befor e an acc used m ay be convicted of a criminal offense based upon c ircumstantial evidenc e alone
, the fa c ts a

nd c ir c ums tanc e s “ mus t be so str on g a nd c og e nt a s to e xclu de e ve ry oth e r r e a so na

ble hy pothesis save the guilt of the defe ndant.” Sta te v . Crawf or d , 225 Tenn. 478, 482, 470 S.W.2d 610, 612 (1971). “I n other words, ‘[a] web of g uilt mus t be woven a round the de fenda

nt from which he

c a nn ot e sc a

pe a nd fr om w hic h f

a c ts a nd c ir c ums tanc e s th e jur

y c ou ld draw no ot he r r e a so na ble infere nce sa

ve the g uilt of the defendant bey ond a reasonable doubt.’” State v. Mc Afee , 737 S.W .2d 3 0 4 , 3 0 6 (T en n

. C ri m

. Ap p

. 1 9 8 7 ) ( qu o t i n g Cra wfo rd , 470 S.W .2d at 613).

Of c ritical importance in the prese nt case , this court, in determining the suffic iency of t he evidence, should not rew eig h or reevaluate t he evide nce, Sta te v . M att he ws , 805 S.W .2d 776, 779 (Tenn. Crim. App. 1990) , and questions conce rning the credibility of t he witnesses, the weig ht and value of the e vidence , as we ll as all fac tual issues raised by the evidence are resolved by the trier of fa ct, not the appe llate cour t, S ta tev. Cabbage
, 57 1 S.W.2 d 8 32 , 8 35 (T e nn . 1 97 8) . A lso , th is court may not substitute its infe renc es for those draw n by

the trier of

fac t from the evide nce. Liakas

v . S tat e , 1 99 Te nn . 2 98 , 3 05 , 2 86 S.W. 2d 85 6, 85 9 ( 1956 ); Fa rm e r v . S tat e , 574 S.W .2d 49, 51 (Te n n

. Cr im

. A p p

. 1 9 7 8 )

. O n th e c o n tr a r y , th is c o u r

t mu s t a f f o r d th e St a te o f

Tenne ssee the

s t ro n ges t l egitimate view of the evidenc e conta ined in the re cord a s well as all re asonable and leg itimate infere nces w hich may be dra wn from the e vidence

. Cabbage , 571 S.W .2d at 835.
As it pertains to the pre sent ca se, ag g ravated sexual battery is “unlawful se x ual

c on ta c t w itha

vic timby

the de fe nd a nt o r t

he de fe nd a nt b y

a vic tim

. . . . [wh e n th e ] vic timis l e ss than thirteen ( 13) y ear s of ag e.” T .C.A. § 39-13-504(a )(4) (2003).

“Sexual c ontact” includes the intentional touching of the victim’s . . . intimate parts, or the intentional tou ch i n g of the c lothing cove ring the immediate ar ea of

the victim’s . . . intimate parts, if t hat intentional touching c an be r easonab l y co n strued as be ing f or the purpose of

sexual arousal or g ratification.

Id. at 39-13-501( 6). I ntimate parts include, “the primary g enital area, gr oin, inner thi g h, buttock or brea st of a human be ing.” Id . at § 39-13-501( 2).

The de fenda

nt al l eges tha t any

touching of the victim was not “intentional” but ins te a d w a s th e re su lt o f a mis ta ke of fact in lig ht o f h is i nto xicatio n. Take n in the lig ht m os t fa vo ra ble to the Sta te , the e vid e nc e re a so na bly su pp or ts a c on c lus ion that the de fe nd a nt i nte nti on a lly touched the clothing cover ing the immediate ar ea of the victim’s g enitalia. The offe nse occ urre d as part of multi ple vi sits to the bedroom by the def endant. The defe ndant’s wife testified that he kne w what he was doing when he left the c ouch to g o into the bedroom. At times, the def endant blame d al co h o l
, b u ti n h i s v i d eo s t at em en t , h e de n i ed get t i n g dru n k

. T h e d ef en d an t ’s v o i ce m ai l m es s age to the victim’s pare nts, as well as his statements made in th e p ar k i n g l o t confrontation, could be interpre ted as a dmissions of g uilt. I n addition to this evidenc e, the victim’s te s t i m o n y t h at the-7-

defe ndant aske d her if she wanted him to touch her, that he kis sed her neck, and that he a sked her to keep it a se cre t all sugg est i n t en t i o n al conduct. We find that a jury could re asonably

conclude from the e vidence that the def endant intent i o n al ly

touched the vic tim’s clothing cove ring the immediate ar ea of

the victim’s g enital ar ea f or the purp o s e o f s ex u al arousal or g ratification. See State v. Hay es , 899 S.W .2d 175, 180 (Tenn. Crim. App. 1995) (noting that intent in sex ual batter y
case s is often proved by

circ umstantial evidence , including c onditions under which the touching

oc c ur re d) ; se e als o State v. Me eks
, 8 7 6 S. W. 2 d 1 2 1 , 1 3 1 ( T e n n

. Cr im

. A p p

. 1 9 9 3 ) ( “ We r e c o g n iz e that jurors may

use their c ommon knowledg e and e x perie nce in making rea sonable infe renc es fr om evidenc e.”). Finally , we note that the statute only require s an intentional touching that can be

“ reasonably construed as being for the pur pose of se x ual ar ousal or gratification.” T.C.A. § 39-13- 50 1( 6) (e mph a sis a dd e d) ; se e al s o S tat e v . R oy Chi se nh all , No. M2003-00956-CCA-R3-CD, slip op. at 3 (Te nn. Crim. App., Nashville, J une 3, 2004).

The judg ment of the trial c ourt is, theref ore, a ffirme d.

___________________________________ J AMES CURW OOD WI TT, J R., J UDGE