# FILED
August 25, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON JULY 1998 SESSION

STATE OF TENN ESSEE, ) NO. 02C01-9708-CC-00334 ) Appellee, ) BENTON COUNTY ) VS. ) HON. JULIAN P. GUINN, ) JUDGE REGINALD L.

EDMONDS, ) ) (Rape of a Child, Aggravated Sex ua l Appellant. ) Battery, Especially Aggravated ) Sexual Exploitation)

FOR THE APPELLANT : GUY T. WILKINSON District Public Defender VICKI S. SNYDER Assistant Public Defender 117 N. Forrest Avenue P.O. Box 663 Camden, TN 38320 FOR THE APPEL LEE : JOHN KNOX WALKUP Attorney General and Repor ter PET ER M . CO UGH LAN Assistant Attorney Gener al Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 G. ROBERT RADFORD District Attorney General VICTORIA DIBONAVENTURA STEVEN L. GARRETT Asst. District Attor

neys General 111 Church Street P.O. Box 686 Huntingdon, TN 38344-0686

OPINION FI LED:

AFFIRMED

JOE G. RILEY, JUDGE1 It is the policy of this Court not to reveal the names of minor victims of sexual

abuse. 2 OPINION

The defendant, Reginald L. Edmonds, w as convicted by a Benton County juryof two (2) counts of rape of a ch ild, one (1) count of aggravated sexual battery and one (1) count of especially aggravated sexual

exploitation of a minor. He was sentenced as a Range I offender to concurrent terms of twenty (20) years for each rape count, twelve (12) years for aggravated sexual battery and twelve (12) years forespecially aggr

avated sexual exploi

tation. On appeal, he

presents thefollowing issues f or our revie w: (1) whether theevidence was sufficient t o sustain the verdicts of guilt; (2) whether the trial court erred in denying his motion to suppress his statement given to law

enforcement authorities; and (3) whether the trial court erred in allowin g the s tate to introduce a statement by the victim as an excited utterance. After a thorough review of the record before this Court, we find no reversible error. Accordingly, the j udgment of the trial court is affirmed.

FACTS

The defendant was the father of the ten (10) year old v ictim, C.E. 1 , and her thirteen (13) year old brother, T.E. Both children had been liv ing with the defendant since he separated from their mother in 1989. At trial , the victi m testif ied as to f our incid ents of s exual abu se by th e defendant. As to Count One which c h arged rape of a child, C.E. testified that several days before Christmas 1996, she was trying on s ome clothes. While she
was changing, she noticed her father watc hing her through a hole in the wall. Defendant then opened the door, watched her for a few moments and thenled her into another room. The victim was wear ing only her underw

ear. Defendant then laid down on th e bed, put his penis into her mouth and made her “rub it up and3

down” until he ejaculat

ed. As to Count T wo which charged especi ally aggravat ed sexual exploitation of
a minor, the victim testified that the defendant mad e a video of her while she was living with

him. The videotape was i ntroduced at trial and depict s the nude victim simulating masturbation. As to Count T h ree charging rape of a child, C.E. testified that before Christmas1996, defendant made her and he r brother take their clothes off and get into bed with hi m. She referred to this as the “pajama party.” She further testified that once she was

in bed with him, her father “pulled [her] panties dow n and he put his dick in [her] butt.” As to Count Four charging rape of a child, the victim testified that when she
was eight (8) years old, defendant put his “finger up in [her] butt.” When she asked the defendant to leave her alone, defendant took her into anothe r room and told her to “kiss” his penis. When she refused, defendant struck her. The defendant kept the victim at

home for

the next two days because of the bruising on the s ide of the victim’s face. Peggy Jamison, th e victi m’s moth er, testi fied at t rial that on Saturd ay, December

21, 1996, she spoke with he r daughter on the telephone. C .E. was crying and would not tell her mother w hat was bo thering h er. The n ext day, Jamison picked her

children up from their father’s home. C.E. was withdr awn and crying, then suddenly asked her mother what a “blow job” was. Upon further inquiry by her mother, the victim stated her father had molested her. T.E., the victim’s brother, testified at trial concer ning the “pajama

party” that
occurre d in the fall of 1996. He stated that his father aske d him and his sist er t o take most of their clothes off and get into bed with him. He could recall that at one point his sister told his father to “stop.” He also testified that in the spring of 1994, his father hit his sister, causing a bruise on her face. Benton County Sheriff Bobby Shannon also testified at trial. Upon ar resting defendan t in December 1996, he confiscated the videotape which subsequently became the ba si s of the sexual exploitation charge. When he confronted the4

defendant with t he ta pe and pointed out that the victim was visibly distraught, the defendant responded, “if I’d

. . . screwed her she’d had a smile on her face.” Defendant denied having sexual intercourse with his daughte r and tol d Sherif f Shannon that he was m erely ex amining the victim for “parasites.” At one point during their conversation, defendant told Shannon that he made the tape“[t]o have a little fun.” Defendant testified on his own behalf at trial. He denied sexually abusing his daughter and initially denied mak ing the videotape, but ev entually admitted making the tape to “examine [the vi ctim] for like parasites.” Defendant also denied that he asked his children to take off their clothes and get into bed w ith him. However, the following exchange

occurred on cross-ex

amination: Q. Mr. Edmonds , your thirt een ye ar ol d son [T.E.] has come in here under oath and has testified that you had him take off his clothes and get i n bed and you got in bed with your underwear --- A. Well, he had his underwear on too. I mean if he did -- if we d id it, oka y. Q. He had his underwear on to o? A. Yeah. I didn’t tell him to take his clot hes of f complet ely, if I -- if we ever d id anything like that. That’s just not me. I don’t do that ki nd of thing. . . The jury fo und defend ant gui lty of rape of a child in Counts One and Four, especially aggravated sexual exploitation i n Count Two and the lesser offense of aggravatedsexual battery in C ount Three. Defendant now brings this appeal as of right.

SUFFICIENCY OF THE EVIDENCE

De fendant challenges the suff iciency of the convic ting evide nce. Spe cificall y, he claims that thevictim “could not state with any ce rtainty regarding dates of any of the alleged events.” He also argues that the state failed to present any medical proof which would corr

oborate the victim’s al legations. Therefore, he asserts that the evidence was ins ufficient for a rational trier of fact to find him guilty bey ond a5

reasonable doubt. A. Where sufficiency of

the evidence is challen ged, the relevant question for an appellate court is whether, after viewing the ev idence in the light most fav orable to the prosecution, any ration al trier of fact could have found the es sential elements of the crime or crimes

beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson
v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Abrams , 935 S.W.2d 399, 40 1 (Tenn. 1996). Great weight is giv

en to the result reache d by the jur y i n a criminal trial. A juryverdict accredits the state's witnesses and resolv es all conflicts in favor

of the state. State v. Bigbee , 885 S.W.2d 797, 80 3 (Tenn. 1994); State v. Harris , 839 S.W.2d 54, 75 (Tenn. 1992). On appeal, the state is entitled to the stro nges t legitimateview

of the evidence and all re asonabl e infere nces which may be dra wn therefrom. Bigbee , 885 S.W.2d at 803; Harris , 839 S.W.2d at 75; State v. Cabbage , 5 71 S.W.2d 832, 835 (Tenn. 1978). Moreover, a g uilty verdict r emoves the presumption of in nocence w hich the appellant enjoyed at trial and raises a presumption of guilt on appeal. State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973). The appellant has the burden of overc oming this presumption of gui lt. Id. B. Defendant was convicted of rape of a child i n Counts One and Four. Rape of a child is “the unlawful sexual penetration of a vic tim by the defendant or the defendant by a victim, if such victim is les s than thirteen (13) year s of age.” Tenn. Code Ann. § 39-13-522(a). Sexu al penetration is defined as “s exual intercourse, cunnilingus, fellatio, anal intercourse,or any other intrusion, howev er slight, of any part of a person's body . . . int o the genital or anal openings of the victim's

. . . body.” Tenn. Code Ann. § 39-13-501(7). As to Count One, the ten (10) year old victim testified that several days pri or to Christmas 1996, her father put his penis into her mouth. As to Count Four, the victim testified that w

hen she was eight (8)

years old, defendant put his “finger up in [her] butt.” The evidence w as sufficient to support de fenda nt’s convictions for6

rape of a child in Counts One and Four. C. In Count Two, defendant was conv icted of especially agg ravated sexual exploitation of a minor. That offense is defined as knowingly promoting, employing, using, assisting, transporting or permitting “ a minor to participate in the performance
or in the product ion of material which includes the minor engaging in: (1) [s]exual acti vity; or (2) [s]imulated sex ual activity that i s patently offensive.” Tenn. C ode Ann. § 39-17-1005(a). “Mater ial” means “[a]ny picture, drawi ng, photograph, motion picture film, videocassette tape or other pictorial repres

entation.” Tenn. Code Ann. § 39-17-1002(2)(A). “Sex ual activity” i ncludes the act of masturbation. Tenn. Code Ann. § 39-17-1002(7)(B). The victim testified that the defendant made a videotape of her in the spring of 1996. The videotape was introduced at tria l and depicts the victi m fondling herself in variouspositions and masturbating.Although defendant testified that he
was merely examinin g hi s daughter for “parasites, ” a viewing of thi s graphic and lewd videotape clearly reveals the preposterous nature of defendant’s claim. This sickening evidence is sufficient to support the jury’s finding of guilt of especially aggravated sexual exploitation of a minor. D. Although def en dant was indicted for rape o f a child in Count Three, defendant was convicted of the le sser offense of aggrav ated sexu al batte ry. Aggravatedsexual battery is defined as “unlawful sexual contact with a victim by the defendant or

the defendant by a victim” where “[t]he victi m is less than thirteen (13 ) years of age.” Tenn. CodeAnn. § 39-13-504(a)(4). “‘ Sexual contact’ includes the intentional touching of the victim's . . . intimate parts, or the intentional touching of the clothi ng cov

ering the immedi ate area of t he victim's . . . intimate parts, if that intentional touching can be reasonably constr ued as being for the purpose of sex ual arousal or gratification.” Tenn. Code Ann. § 39-13-501 (6). “Intimate parts” is defined as “the primary genital area, groin, inner thigh, buttock or breast of a human being.” Tenn. Code Ann. § 39-13- 501(2).7 Both C.E. and T.E. testified that pri or to Christmas 1996, d e fendant made them take their clothes off and get in to bed with him. The victim testified that her father then “pul led [her] panties d own and he put his dick in [her] butt.” T.E. could recall that while they w ere in bed with their father, C.E. told him to “stop.” Furthermore, defendant essentially admitted the occurrence of the “paja ma party” in his own testimony. The evidence is sufficient to sup port defendant’s conviction for aggravated sexua l battery. E. Defendant contends tha t the evidence is insufficient to support his
con victionsbecause the victim did not testify as to the specific dates of the offenses. However, the state has no burden to prove that an offense happened on the exact date alleged in the indictment. “The r ule is that the offense must be proved to have been committed prior to the finding of the indictment . . . and,except where a special date is essenti al or time is of the essence of the offense, the time of the commission of

the offense averred in the indictment is not material and proof is not co nfine d to the time charged.” State v. West , 737 S.W.2d 790, 792 (Tenn. Crim. App. 1987). Indeed, [t]he time

at which the offense was committed need not be sta ted in the indictment, but the off ense may be alleged to hav e been committed on any day before the finding thereof, or generally before the finding of the indictment, unles s the time is a material in gredient in the offense. Tenn. Code Ann. § 40-13-207; see also State v. Byrd , 820 S.W.2d 739, 740 (Tenn. 1991). A review of the entire record in dicat es that the state presented sufficient proof that the offenses occurred “on or about” the dates alleged in the indictment. Addition ally, there does not appear to be a jur y un ani mity problem under State v. Shelton , 851 S.W.2d 134 (Tenn. 1993). An election of offenses was not requ ired since there was testimony about only four (4) sexual offenses and each
was alleged in a separate count of the indictment. See generally State v. Walton , 958 S.W.2d 724, 72 7 (Tenn. 1997). F. Defendant further asserts that the evidence is insufficient because the state8

did not present any medical proof that would corrobor ate the vic tim’s tes timony. A
nurse pr actitioner who exami ned the victim on December 23 testified that he r e xaminat ion neither confirmed nor ruled out the allegations of sexual abuse. Although the medical proof was inconclusive, the jury was able to weigh and assess the testimony of the nurse practi tioner along with

that of the other

witnesses. The weight and credibility of

the witnesses' testimony are matters entrusted exclusively to the jury as

the triers of fact. State v. Brewer , 932 S.W.2d 1, 19 (Tenn. Crim. App. 1996). Further, there is no requirement that the v ictim’s testimony be

corroborated bymedical testimony. The fact that medical testimon y could not confirm nor rule out sexual abuse i s a matte r of w eight for the jury. State v. Howard , 617 S.W.2d 656, 658 (Tenn Crim. App. 1981). G. The evidence is suffi cient to s upport e ach of th e defen dant’s co nvi ctions

. This issue is without merit.

MOTION TO SUPPRESS

Defendant further alleges that the tr ial court e rred in den ying his motion to suppress his statements to law enforc ement authorities. He claims that She riff Shannon questioned him in violation of his constitutional rig hts because Shannon did not obtain a signed waiver of defendant’s Mir anda right s prior to questioning him. He further

complains that Shannon did not rec ord the defendant’s statement,
nor did he inquire whether de fendant w as intoxicated during the interview. H e, therefore, asserts that

he did notknowingly and v oluntarily waiv

e his rights prior to giving a statement to authorities, and the statemen t should have been suppressed at trial. A. Sheriff Shannon testified at the motion to su ppress that on December 24, 1996, he, along with other l aw enforcement officers, w

ent to defendant

’s hometo
serve an arrest warrant on defendant in co nnecti on with the present offenses.9

Defendant invited them inside, and Sh eriff Shannon ad vi sed him of his Miranda rights

. Shan non told defendant that they wer e looking for some videotape s, and defendant told him to “get a w arrant.” Shannon arrested defendant and took him to the Bento n County Jail. As Sha nnon was attempting to procu re a search warrant, he and defendant be ga n discussing the present charges. Shannon testified that although defendant never formally waived his rig ht to an attorney, he never asked for an attorney. He stated that he read the defendant his Miranda righ t s twice prior to def endant giving a
s tatement
. He further testified that defendant di d not appear to be under the influence of any intoxicant. The state also in trod uced defendant’s testimony from the pr eliminary hearing where he acknowledged that he w as informed of his right to an at tor ney and his right to remain silent. The trial court overr

uled the motion to suppress, finding that “the record [was] abundantly clear” that

defendant waived his constitutional rights prior to speaking with Sheriff Shannon. B. When an accused moves to suppress his statement given

to a law enforcement officer, the findings of fact made by the trial court at thehearing on the motion are binding upon this Court unless the evidence contained in the record preponderatesagainst these findings. State v. Smith , 933 S.W.2d 450, 455 (Tenn. 1996); State v. Odom , 928 S.W.2d 18, 23 (Tenn. 1996); State v. Stephenson , 878 S.W.2d 530, 544 (Tenn. 1994). The trial c ourt, as the trier of

fact, is able to assess the credibility of the w

itnesses, determine the we ight and value to be afforded the evidence and resolve any confli cts in the evidence. See State v. Odo m , 92 8 S.W.2d at 23. However, this C ourt is not bound by the tr ial court’s conclusio ns of law. The defendant has the burden of establishing that the evidence contained in the record preponderates agai nst the findings of fact made by the trial court. Braziel v. State , 529 S.W.2d 501, 50 6 (Tenn. Crim. App. 1975). C.10 In Miranda v. Arizo na , the Un ited States Supreme Court held that th e prosecution cannot admit a statement by the defendant stemming from “custodial interrogation”

unless it demonstrates the use of procedu ral safe guards ef fective to secure the privilege against self-incrimination. 384 U .S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). A valid waiver

of an accused’s Miranda rightsis not presumed “simply from the silence of the ac cused af ter wa rnings are given or simply from the fact that a confession was in fact eventually obtained.” 384 U.S. at 475, 86 S. Ct. at 1628. However, an express written or oral waive r of a defendant’s Miranda rights is not necessary to establish a valid w aiver. North Caro lina v. Butler , 441 U.S. 369, 373, 99 S.Ct. 1755, 1757, 60 L.Ed.2d 286 (1979); State v. Elrod , 721 S.W.2d 820, 823 (Tenn. Crim. App. 1986). Although mere silence is not enough to establish waiver, silence “coupled with a[ defendant’s] understanding of his r ights and a course of
c onduct ind icating waiver” may support a conclusion that a defendant waived his rights. Butler , 441 U.S. at 373, 99 S.Ct. 1757; see also State v. Elrod , 721 S.W.2d at 823. Determination of whether a defendant effectively waived his Miranda rights depends upon the tota lity ofthe circumstances, includ ing “the background, experience, and conduct of the accused.” Butler , 441 U.S. at 374-75, 99 S.Ct. at 1758 (quoting Johnson v. Zerbst , 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938)). Considering the totali ty of the circumstances, there must be an indication that (1) defendant’s choice to waive his rights was not coer ced, and (2) defendant was able to

comprehend the rights he was w aiving. State v. Stephenson , 878 S.W.2d at 545. D. A t the time of his arrest, defen dant was thirty-seven (37) years of age an d had no pr

ior cri minal r

ecord. Sheriff

Shannon testified that he read defendant his Mirand a rights twice pr ior to defendant giving a statement. Although defend an t
n ever formally waived his right to remain silent and his right to counsel in writing , defend ant never requeste d an atto rney. The trial court found that the record was “abundantly clear” that defendant11

voluntarilywaived his rig ht to counsel and to remain silent. In light of the totality of the circumstan ces, we see no reaso n to disturb this ruling. This issue is without merit.

EXCITED UTTERANCE

Defendant furth erargues that the trial c ourt erred in allowi ng Jamison, the victim’s mother, to testi fy as to statements made by the v ictim. He alleges that

the statements were inadmissible under th e f resh complai nt doctrine for child v

ictims pursuantto State v. Livingst on , 907 S.W.2d 392 (Te nn. 1995). The state counters with the argument that the statements w ere not admitted under

the fresh complaint doctrine, but under the excited utter ance exception to the hearsay rule. See Tenn. R. Evid. 803(2). Although victims’ statements are no longer admissible under the fresh complaint doctrine, they may be admissible as an excited utterance. State v. Gordon , 952 S.W.2d 817, 819 (Tenn . 1997); St ate v. Livingston , 907 S.W.2d at 395. A. Jamison testified that on the night of Dec ember 21, she s poke with her daughter on the telephone, and C.E. was crying. C.E. would not tell her mother whatwas troubling

her. When Jamison picked her children up from their father’s home the next day, she noticed that C.E. was cry ing and “withdraw

n.” C.E. asked her mother what a “blow job” was. The victi m then told her mother that “her father had molested her. He had touched her, he had done things with her.” B. Tenn. R. Evid. 803(2) excepts fromthe hearsay rule any statement “relating to a startling event or

condition made while the dec larant was un der the st ress of excitement

caused by the event or condition.” In order for a statement to be admissible under the excited utterance exception to the hearsay rule, the proponent of the statement must establish: (1) the occurrence of a startling event or condition; (2) the statement related to that star tli ng event or condition; and (3) the declarant2 We note that the victim’s question, “what is a blow job?” is non-hearsay, asit was

not offered to prove the truth of the matter asserted. See Tenn. R. Evid. 801. 12 was under the stress of excit ement when the statement was made

. See N. Cohen, D. Paine & Sheppeard, Tennessee Law of Evidence § 803(2).2 (3d ed. 1995). The ultimate test is spontaneity and log ical relation to the main event and where an act or de claration springs out of the transaction while the parties are still la boring u nder the excitement and strain of the circumstances

and at a time so near it as to preclude the idea of deliberation and fabrication. State v. Smith , 857 S.W.2d 1, 9 (Ten n. 1993). Furt hermore, the fact that a statement is in response to a ques tion does not necessarily exclude it from the excited utterance exc

eption. Id. C. We conclude that the trial cour t did n ot err in admitting the victim’s
s tate ments to her mother as an excited utterance under Tenn. R. Evid. 803(2). 2 The victim was raped by her father. Rape is consider ed a startling event or condition. State v. Rucker , 847 S.W.2d 512, 517 (Tenn. Crim. App. 1992); State
v. Person , 781 S.W.2d 868, 872 (Tenn. Crim. App. 1989). There is no dispute that the statement related to the star tling event or condition. Furthermore, the victim was obv iously under the stres s of the event. Although the victim made the stat ement at least one day after the startling event, the time interval “is material only as a cir cumstanc e bearing on the issue of continuing stress.” Cohen, Paine & Sheppeard, Tennessee Law of Evidence , supra at 534. Other

factors to consider

are the “nature and serious ness of the events, and the appearance, behavior, outlook and circu msta nces of the declarant.” State v. Smith , 868 S.W.2d 561, 574 (Tenn. 1993). The ten (10) year old victim had been raped by her father the previ ous day. Jamison testified that the victim was

crying and “withdrawn” at the time she m ade her st atement. The circumstances surrounding the victim’s statement es tablish that

it “was not made as the result of
a conscious fabrication or r eflection” but was prompted by the distressed and crying victim seeing and tal king to her mother. State v. Person , 781 S.W.2d at 872. In State v. Gordon , a three (3) year old victim was sex ually assaulted by her13

uncle

. Later during the same day , the victim was att empting to urinate when sh e experienced pain. 952 S.W.2d at 821. Upon her mother’s examination of the child and finding dried blood in the child’s vagina, she asked her daughter, “[w]homade you hurt like that?” Id. The victim then implicate d the defendant. Id. The Tennessee SupremeCourt held that the vic tim’s statement implicating the defendant was admissible as an excited utterance. Id. The Court determined that the child’s attempting to urinate was a startling ev ent and related to the sexual abuse. Id. Furthermore, the Court concluded that “[a]lthough the victim’s parents offered reassurance and asked what had happened, the stress of the event had not diminished and the time was short.” Id. We find the present facts to be analogous to those in Gordon

. Regardl ess, if there was error, i t was harmless at best. Tenn. R. Crim. P

. 52(a). The e vidence presented again st the defen dant was overwhelmin g, considering the victim’s detailed testimony describing the specific acts o f sexual abuse. In light of this evi dence, Jamison’s testimony that the victim told her that her father “molested her,” “touched her,” and “had done things with her” did notoverly prejudice the defendant.

CONCLUSION
For the foregoing reasons , we affirm the judgment of the tri al court.

JOE G. RILEY, JUDGE CONCUR:

CURWOOD WITT, JUDGE14

ROBERT W. WEDEMEYER, SPECIAL JUDGE