# FILED

March 19, 1999

Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON DECEMBER 1998 SESSION

STATE OF TENNESSEE, * C.C.A. # 02C01-9712-CC- 00480 Appellee, * FAYETTE COU NTY VS. * Hon. Jon Kerry Black wood, Judge EDWARD L. DAVIS, * (Sexual ba ttery)

Appellant. *
For Appellant : For Appellee : Edward B. Johnson John Knox Walkup Attorney Attorney General and Repor ter 112 East Court Square Somerville, TN 38068 Marvin E. Clements, Jr. Assistant Attorney Gener al Criminal Justice Div

ision Cordell Hull Buildi ng, Second Floor 425 Fifth Avenue North Nashville, TN 37243-0493 Elizabeth T. Rice District Attorney General 302 Market Street Somerville, TN 38068

OPINION FILED:__________________________

AFFIRMED

GARY R. WADE, PRESIDING JUDGE1 It is the poli cy of thi s court not t o divulg e the names of minor vict ims of sexual abuse. 2 OPINION The defendant, Edward L. Davis , was convicted of sex ual battery, a class E felony. Tenn. Code Ann. § 39-13-505. The trial court imposed a Range I sentence of one year and requi red the defendant to serve eig hteen days in the county jail and the remain der of his sentence on intensiv e supervision with Corrections Management C orporation, a community based alternative. The defendant was required to per form one hundred hours of community ser vice, abide by the terms of a behavioral contract, and pay court costs.

In this appeal of right, the de fendant presents the following issues for review: (I) whether the ev idence is sufficient to support the convictio n for sexu al batte ry; (II) whether the tri al court erred by admitting prejudicial and irrelevant testimony; and (III) whether the tr ial court erred by ref using to charge the lesser offense of assault.
We affirm the judgment of the trial court.

On November 26, 1996, the defendant w as working as a subs

titute teacher in a special educati on classroom of the Fayette C ounty Schools. During the course of the day, a teaching assistant, Mary Gr

andberry, entered the clas sroom and saw the defendant standing next to LH, 1 the victim. The defendant had placed his hand under the victim's clothing. At trial , Ms. Grandberry tes tified that she had looked twice because she w as so surprised before retur ning to her classroom. A few minutes later, she informed another teache r of the defendant's conduct. Ms.3 Grandberry then confronted the defendant, who asked her to "drop i t." She replied, "You asked me to drop this. Y ou've got a daughter. Would you want it to happen to your daughter?" The defendant then ans wered, "No." Ms. Grand berry described the victim as "disturbed" after the incident.

On cross-examination, M s. Grandberry testified that special education students are taught life skills in the classroom kitchen. A cabinet and sink are directly opposite from the doorway to the class room kitchen. Ms. Grandber ry stated that she stood in the doorway as she saw the defendant touching the victim. She testified that the defendant an d victim were standing by the sink, facing one another, with the defendant's left side and the victim's right side visible to M s. Grandberry. She recalled that the defendant's r ight hand was under the v ictim's dress touching her pubic area and denied that her view was obscured by the defendant. Ms. Grandberry explaine

d that she did not intervene because "he know[s] the rul es."
The victim, seventeen y ears old at the time of the offense, testified that the defendant, who had asked her to pr epare coffee for him, slipped his hand under her dress and into her panty hose, touching her pubic ar ea.
Andrea Hamm, the victim's mother, testified that the vic tim had been enrolled in special educati on classes since kindergarten. She denied either questioning the vic

tim about the incident or rehear sing her in preparation

for trial. Ms. Hamm maintained that she had pr eferred that her daughter not tes tify and that the two only discussed the incident when the victim indicated a desire to do so. Ms. Hamm stated that the victim r eads on a second or third gr ade level, can prepare a bowl of cereal but is not permitted to cook, and is not l eft at home alone. She explained that the vic

tim could dress herself but c ould not wash her hair.4 Apparently, the vict im does perform some chores and clea ns her room with assistance. She has an IQ of 50, pl acing her in the moderate r ange of mental retardation.
Sylvia Faye Person, a te acher of speci al education, had attended high school with the defendant and taug ht school with him at Fa yette Ware High School. When she heard the allegation , she asked the defendant about the incident. His response was that he knew nothing about the claim. M s. Person then thought she had misunderstood the allegati on and returned to her classr oom. When she passed the victim in the hallw

ay, the victim, w

ho appeared to be calm, had answer ed that she was fine.
The defendant, who was forty-five years of age at the time of trial, grew up in Fayette Coun ty. In 1973, he rec eived a bachelor' s degree in sociolo gy and social work and obtai ned employment at a residential treatment center for children with emotional problems and physical di sabilities. In 1980, he joi ned the military and receiv

ed training as a medical l ab technician. After receiv ing an honorable discharge, he took a job testing water at a Maryland wastew ater treatment plant. Eventually, he returned to Fayette C ounty and for the last few years has worked as

a substitute teacher.

At trial, the defendant acknowledged that on the date of the incid ent with the victim, he had been asked to teach Mr. Givan's class, a group of severely emotionally disturbed children. The defendant explained that he had taken his class to watch a movie wi

th Ms. Bohannan's class. H e testified that he had asked the victim, who was a student in Ms. Bohannan's class, to make some coffee. He explained that he stood facing the victim near the sin k, supervising her actions, and5 that his left side was cl osest to the door of the main class room. He claimed that when Ms. Grandberry

looked from the doorway, h e was holding the cup i n his right hand in front of the victim, who was holding the coffeepot. He recalled that Ms. Grandberry said nothing and left. The defendan t denied ever touching the victim's clothing or her pubic ar ea.
Odis Cox, a school te acher who h ad known t he defe ndant f or thirtyfive years, testified tha

t the defendant was a "regular citizen, upright, Christian, a young man, and treated ever ybody fair, and honest to ev erybody ...." Cox , who was aware of the defendant's 1994 convi ction for DUI, maintained that that incident had not changed his opinion of the defendant.

Dr. Michael Guinle, a licensed clinical psy chologist, testified that he had extensive exper

ience in determining psy chological profiles. H e explained that a psychological prof ile is a "descripti on of a person 's mental state and any patholo gy or mental illness" he or s he might have. Dr. Gui nle, who had review ed a psychological repor

t on the victim, stated that in his opinion, someone in the moderately retarded range is "able to be steered or coached or coerced ...." He testified that one who is moder ately retarded is "v

ery impaired," in recal ling events and could have a "confabulated [memory ], which just means [her recollections] can be contaminated by other things," such as dreams or they may be influenced by other people. Dr. Guinle subjected the defendan t to the Minnesota Multiphasic Personality Inventor

y (MMPI), a test us

ed nationwide to identify typical sex offenders. While asserting that the MMPI i s ninety percent accurat e in identifying sex offenders, Dr. Guinle st ated that, in his opinion, "[the defendant] is functioning within the average range in terms of intelligence; that he is completely normal on all tests; and that he was truthful and honest and f orthcoming, and provided a valid6 protocol and he does not fit any known pattern for child abusers, an d that it is very unlikely that he is [one

]."

I Initially, the defendant chal lenges the sufficiency of the co nvicting evidence. He argues that the trial court erre d by denying his moti on for judgment of acquittal and that the state fai led to prove an element of the offense. On appeal, of course, the state is entitled to the strongest legitimate view of the evidence and all reasonable inferences whic h might be drawn therefrom. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). The credibility of the witnesses, the w eight to be given their testimony, and the reconciliation of conflicts in the proof are matters entrusted to the jury as trier of fact. Byrge v. State , 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978). When the sufficiency of the ev idence is challenged, the relevant question is whether, after reviewing th e evidence in the light most favorable to the state, any rational tr

ier of fact cou ld have found the essenti al elements o f the crime beyond a reasonable doubt. State v. Willia ms , 657 S.W.2d 405, 41 0 (Tenn. 1983); Tenn. R. App. P. 13(e).

The defendant was convicted of sex ual battery, defined as the "unlawful sexual contact with a victim by the defendant or the defenda nt by a victim [where t]he defendant knows or has reason to know that the victim is mentally defective, mentally incap acitated or physicall

y helpless ...." Tenn. Code Ann. § 39-13-505(a)(3) (Supp. 1996). "Mentally defective" means that th e person suffers from "a mental disease or defect whi ch renders that person temporar ily or permanently incapable of apprai sing the nature of such person's conduct." Tenn. Code Ann. § 39-13-501(3). "Sex ual contact" is defined as follow s: [T]he intentional touching of the victim's ... intimate parts, or the intentional touching of the clothing over the7 immediate area of the victim's ... intimate parts, if that intentional touching can be reasonably construed as being for the purpose of sexual arousal or gratificati on. Tenn. Code Ann. § 39-13-501(6).

The defendant argues that the state f ailed to prove that the contact was for the purpose of sexual arousal or gratificati on, as required by Tenn. C ode Ann. § 39-13-501(6). Evi dence of intent, sexual arousal or gratification can be proven circumstantiall

y. See State v. Hayes , 899 S.W.2d 175, 180 (Tenn. Crim. App. 1995) (citi ng Hall v. State , 490 S.W.2d 495, 496 (Tenn. 1973)). Here, the victim testified that the defendant placed his hand under her dres s and into her pantyhose, touching her pubic area. The area and nature of the touch are circumstances from which the jury could conclude that the contact was intended and for the purpose of sexual arousal or gratification. Becaus e this court may not substitute its own infere nces for those logically drawn by the jury, there was sufficient proof of sexual contact betw een the defendant and the victim. Pr oof that the victim, who w

as affected with moderate mental ret ardation, having an IQ of 50, qualified as "mentally defective" as defined by statute. T hus, the evidence is sufficient to support a convic tion for sexual battery . The trial court did not er r by denying the defendant's motion for judgment o f acquittal.

II Next, the defendant argues that the trial court erred b

y admitting irrelevant and inadmissible testimony. The state maintains that be cause defense counsel has failed to include citations to the record and fail ed to make a contemporaneous objection to the tes timony at trial, the is

sue has been waived.
Generally, a ground has been waived when the defendant fails to8 lodge an objection or fails to raise an issue on motion for new trial. Tenn. R. App. P

. 3(e), 36(a); State v. Baker , 785 S.W.2d 132, 135 (Tenn. Crim. App. 1989); State v. Killebrew , 760 S.W.2d 228, 235 (Tenn. Crim. App. 1988). A failur e to refer to the record may also result

in waiver. Rul e 10, R. Ct. Crim. App. While we ag ree that technically the issue is waived, we nonetheless conclude that the ev idence was properly admitted.

Initially, the defendant argues that the testimony of Ms. Grandb erry was impeached and that the v ictim was coached as to h er testimony. The credibi lity of witnesses, howeve r, is a question for the tr ier of fact. See Cabbage , 571 S.W.2d at 835. Defense counsel extensi vely cross-ex

amined Ms. Grandberry and submitted expert proof that the victim was susceptible to coaching. The jury weighed and considered this evidence and, by its verdict, the jury accredited the testimony of the victim and Ms. Grandberry and re jected that of the defendant. In consequence, the jury r esolved all conflicts i n favor of the State's theory. Williams , 657 S.W.2d at 410. See State v. Ho yt , 928 S.W.2d 935, 942 (Tenn. Crim. App. 1995).

The defendant also contends that the trial court improperly per

mitted Ms. Hamm to testify that the victim had experienced "bad dreams." Def ense counsel asked Ms. Hamm, "Hav e you talked with [the

victim] about this inc

iden[t] on a number of occasions or how many occasions?" Ms. Hamm answ ered, "Right after it happened, she talked about it freq uently and she would tel l me she had bad dreams ...." The defendant claims tha t this testimony is non-responsive, prejudicial, and lacking in any pr

obative value. We disagree. Rel evant evidence means evidence having a tend ency to make the existenc e of any fact that is of consequence to the determination of the action more probable or le ss probable than9 it would be without the evidence. State v. Banks , 564 S.W.2d 947, 949 (Tenn. 1978). If evidence is rel evant to some matter actually in issue in the case on tr ial and its probative val ue is not outweighed by its prejudicial effect upon the defendant, then such evidence may be properly admitted. Bunch v. State , 605 S.W.2d 227, 229 (Tenn. 1980). In our view, the testimony of Ms. Hamm w as generally responsive to defense counsel's question. That Ms. Hamm vaguely described the content of these conv ersations was beyond the scope of the question. That the victim had experienced bad dreams after the incide nt was, however, probative of the effect of the inciden t upon the victim. We do not view the reference to "bad dreams" to have been unduly prejudicial, particul arly when view ed in light of the damaging testimony of both the victim and Ms. Gran dberry.

III The defendant maintains that the trial j udge erred by refusing to instruct the jury as

to the lesser offense of assault. Tenn. C ode Ann. § 39-13-101. The state's position is that there was no proof of the lesser offense and, thus, the trial court did not err

by refusing to charg e misdemeanor assault.
The trial judge has a duty to give a complete char ge of the law applicable to the facts of the case. State v. Harbison , 704 S.W.2d 314, 319 (Tenn. 1986). There is an obligation "to charge the jury as to all of the law of each off ense included in the indictment, w ithout any request on the part of the defendant to do so." Tenn. Code Ann. § 40-18-110(a) . "Pursuant to our statute, r ule, and case law interpretations, defendants are entitled to jury instructions on all [lesser offenses], if the evidence would suppor t a conviction for the offense." State v. Trusty , 919 S.W.2d 305, 311 (T enn. 1996). Such a charge "allows the jury to consider all relevant offenses in determining the appropriate offense, if any, for c onviction" and10 "more evenly balances the rights of the defendant and the prosec ution and serves the interests of justice." Id. It is only when th e record is devoid of ev idence to support an inference of guilt of the l esser offense that the trial cour t is relieved of the responsibility to c

harge the lesser crime. State v. Stephenson , 878 S.W.2d 530, 549-50 (Tenn. 1994); State v. B oyd , 797 S.W.2d 589, 593 (Tenn. 1990).

Our supreme court has previously determined that assault is neither a lesser grade offense nor a less er included offense of sexual batter y. State v. Cleveland , 959 S.W.2d 548, 554 n.5 (Tenn. 1997). In consequence, it was not error for the trial court to refuse t o instruct the jury on

that offense.
Accordingly, the j udgment is of the trial court is affirmed.

________________________________ Gary R. Wade, Presiding Judge CONCUR:

______________________________ Thomas T. W oodall, Judge

______________________________ John Everett Williams, Judge