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

Briefs O ctober 29, 2002
STATE OF TENNESSEE v. KENNETH RAY STEW ART
Direct Appeal from the Criminal Court for Ham ilton County No. 232733 Douglas A. Meyer, Judge

No. E2001-02117-CCA-R3-CD May 29, 2003

The Defendant, Kenneth Ray Stewart, was convicted by a Hamilton County jury

of one count of attempted sexual battery. The trial court sentenced the Defendant to eleve n months and twenty-nine days in the Hamilton County Workhouse, suspended the sentence, and ordered that the Def endant
serve the sentence on supervised probation. Conditions of probation included counseling pursua nt to a sex offend er clinic al evaluation and no contact with the victim. On appeal, the Defenda nt present s three issues for our review: (1) whether the trial court erred by

allowing testimony

by St ate witness Virgie

Redden under the excited utterance exception to the hearsay rule; (2) whether the trial court erred by allowing the State to use leading questions during direct examination of the victim; and (3 ) whether the evidence was insufficie nt as a matter of law to support the Defendant ’ s conviction for attempted

sexual battery. Finding

no reversible error, we

affirm the judgment of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

R OBERT W. W EDEMEYER , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., and J OE G. R ILEY , J., joined.

Mike A. L

ittle, Cha ttanoog a, Tenne ssee, fo

r the app ellant, K

enneth Ra

y Ste wart.
Paul G. Summers, Attorney Gene ral and Reporter; Angele

M. Grego ry , Assistan

t Attorne y General ; William H. Cox, III , District Attorney Gen e ral; and Parke Masterson, Assistant District Attorney General, for the appellee, State of Te nnessee.
OPINION

I. PRO CEDURAL

HIST ORY

Kenneth Ray Stewart wa s indicted by the Hamilton County Grand Jury for one count of rape, a Class B felony. A Ha

milton County jury

convicte d the Def

endant of the lesse r-includ ed offe nse of attempted sexual battery, a Class A misdemeanor . The Defendant was sentenced to ele ven1 Bec ause Adam O rr, Frances Orr, Sherry Orr, Terrell Orr, Melissa Orr and Leon Orr shar e the s ame last name, we will re fer to these witnesse s by their first na mes. W e intend no d isrespe ct by this usa ge, bu t do so only to a void continually utilizing their entire names.
-2- months, twenty-nine da

ys, to be ser

ved on sup ervised

probatio n. Conditi ons of the D efendant’s probation included counseling pursuant to a sex offender clinical evaluation and no contact with the victim.

On appeal, the Defendant presents three issues for our r eview: (1) w hether the trial court erred by allowing testimony by

State witness Virgie Redden under the excited utterance exception to the hearsay

rule; (2) whether the trial court erred b y a

llowing t he State to use leading questions during d irect exa mination of

the victim ; and (3) whether the evidence was insufficient as a matter of law to s upport the

Defend ant’s co nviction f or attempted sexual

battery . Finding

no rever sible error, we affi

rm the judg

ment of the

trial cou rt.

II . FACTS

The follo wing pr oof was presen ted at the De fendan t’s t rial. Adam O rr, th e teena ge nephew of the victim , Franc es Orr, t estified that at the t ime of the

offense in Dece mber, 199 9, he live d in So dd y-D ai sy, Tenness ee, on pr operty adjoining that of the

victim. He stated that he had lived there withhis parents, Sherry a nd Terrell Orr, and his sister, Melissa, all his life. Adam 1 stated that the Defendant

is also a neighbor. He stated the victim lives alone. After identifying some photographs of the front and back

porch of his aunt’s house, Adam stated that behind the window to the left of the front door is the living room, and behind the window t o t he righ t is the bed

room. He

also explained that on the back porch of the victim’s house are two doors, one to the kitchen and the other to the bat hroom.

Adam testified that on December 6, 1999, he had gone to visit his aunt at her

home around 5:30 or 6:00 in the evening. He stated he entere d t h rough the front door, but could not remember if he locked the door after entering. Adam recalled that he stay ed for about

fifteen minutes and then left through the back door. Adam stated that he could see his aunt’s house from his back y ard, but he acknowledged that it was getting late, that the sun was down, and that it was har d to see. Adam testified that the only lighting in the area comes from “the lights out of the houses.”

Adam testified that

his attention was drawn to the victim’s house when he saw that the victim ha d turned on her back porch light. He stated that he sa w her come out her back door in a nightgown, “fiddle[] with a few things” and then go into the bathroom. Adam reporte d that he also
saw the head of a person looking around the cor ner of the victim’s house. He testified that he then
saw his aunt come out of the bathroom and go back into the house throug h the kitchen door, turning out the porch light as she went inside.

Adam testifie d that he r

an to the house andwent around the side to the front corner by the living room. According to Adam, there was lig ht coming from the kitchen and living room-3-

windows. Adam stated that he saw the Defendant at the front door, which w as open. He recalled that the first thing he heard after he arrived

was the D efenda

nt asking the victim

if he could come in. Adam said he heard the victim say no and then, “T ell Marvin.” Next, Adam stated that he heard the Defendant tell the victim that Marvin was not home. Adam identified Marvin as a brothe r of the victim who also lived nearby . Adam testified that the victim then told the Defendant she would tell her brother, Terrell, Adam’s father , but the Defendant said that Terrell was not home either.

Adam testified that the Defendant walked off the p or ch, came toward him, and looked around the corner of thevictim’s house towards the house where Adam and his family lived. Adam repor ted that when the Defendant came toward him, he la id down. Adam stated that he then saw the Defendant

turn around and walk back onto the porch, and he heard the D efenda nt ask the victim again if he could come

in, because “it was cold.” Adam testified that the victim said “no,” but the Defendant just “kind of slipped by her. He just walked in.”

Adam testified that

after the front door closed, he jumped up o nto the por

ch and loo

ked into the living room through a hole in the blinds in the fro nt window. He state d that he s aw the victim and the Defendant sitting in the living room. Adam testified that he then ranhome, told his mother, Sherry Orr, tha t the two w ere in the living room tog ether, a

nd then im

mediatel y ran back to the victim’s front window. He testified that the only light on i n the living

room was a

lamp in the back
corner. Adam stated that he saw the victim and the Defendant sitting tog ether o n the couch w ith their backs to t

he window

and their arms aro und eac h other. Adam testif ied that he could hea r mumbling sounds, but he could not make out what was being said.

Adam testified that he saw the Defendant kiss the victim on the cheek, and the victim then walkedinto the kitchen. He repo rted tha t the Def endant w alked to

the middle of the room, and the victim returned and stood in the other corner of the living r oom. Adamstated that the Defendant set the table lam

p in the corner on the floor, making it harder for Adam to see inside. Adam testified that the victim walk ed over and turned out the lamp, leaving no lights on in the house. Adam reporte d that he c ould hear talking in the bed

room, one of

the rooms facing the front of the house. Adam then walked off theporch and went around to the back of the house. Adam stated that about five to ten minutes passed from the time he returned to the porch after telling his mother wha t he had seen until the time the light went out and the people in the house went into the bedroom.

Adam testified that while he was at the back of the hou s e, his uncle, Leon Orr, a nother brother of the vi ctim, pulled into the driveway. Ada m reported that less than five minutes passed between the time the lights went out and Leon Orr’s a

rrival. Adam stated that as Leon Orr pulled into the driveway, someone came out the back door, opened the screen door, looked out, and then closed the door. Adam stated that he then heard L eon knocking at the front door and telling th e victim to let him in, but he could not hear any r esponse. Adam testified that after L eon told the victim a few times to open the door, Le on “said he’d get the police there to knock the door in if he had to.”-4-

Adam testified that he returned

to the front porch where he saw L eon, his wife, Nancy O

rr, and Sherry Orr , the witness’ mother. Leon then went into the house, w here he and th e Defendant talked. Adam

stated that every one then left and that as they were all walking out of the house, the Defendant said to Sherry

Orr, “I hope y

ou’re satisfied for waking up the whole ne ighborhood.” Sherry Orr testified that she is the victim’s sister-in-law and that she had been living near the victim for eighteen or nineteen y ears. She stated that she had known the Defend ant for a bout twen ty ye ars. Sherry testified that altho ugh the v ictim

is self-su ffic ient, “she

just c an’t talk, can’ t spea

k[,]” and she st ated tha t the victi m had bee

n unable t o speak f or twenty -six y ears. Sherry stated that around 6:00 p.m. on the evening of the offense, she was at home, and her husband was at work. She reported that her son, Adam, came home and told her that the Defe ndant
was in the victim’s house. Sherry testified that she called Leon Orr , the victim’s brother, who lives “right over the hill.” She stated that after she called L eon, she went

to the victim’s back ya

rd and stood behind a walnut tree, but she could not see or hear any thing from there. She reported that she could see no lights on inside the house. Sherry stated that after Leon a

rrived, she approache d th e house. She testif

ied that a s the Def

endant st arted to leave, he told her that he hoped she was satisfied that she had upset three families. She testified that she then told him he had no business being ther e and that he had been told to stay away.
Harlan Leon Orr testified that in Dec ember 1999, he lived about a mile and a half from the home of his bro ther, Te

rrell Or r. He tes tified tha

t he knew the Defe ndant and that th ey had be e n “dear friends ” their

entire lives. He testified

that the victim was “mentally cha llenged” and “a very trusting soul.” He stated that the victim does not speak very well and that she says only two or three words at a time. He also testified that the victim has been like that since she was a baby.

Leon Orr testified that on the evening of Dece mber 6, 1999, he received a call fromhis sisterin-law, Sherry Orr , around 6:00 or 6:30. He stated that she tol d him that Adam Orr had seen the Defendant

go into the victim’s house and turn off all the lights and that she was “kind of concerned.” Leon reported that he went

to the victim’s house, pulled in the driveway , and went to the door. He said that when he got there, no lights were on in the house.

Leon testified that he knocked on the door and asked the victim to open the door, but she said, “No, Leon.” He te stified that he demanded tha t she open the door, but she still refused. He stated that it

did not sound like she was in the living

room. L eon state d that the

victim nev er came to the door, and he tr

ie d to enter t he house on his own, but the door was locked. He testified that after he told the victim that he would kick the door in or call the police and have them kick the door in, the bedroom light came on, and the Defenda nt opened the door.

Leon testifie d that the

Defend ant aske d him, “Wha t’s goin g on?” He r

esponde d, “Well, that ’s kind of wh at I w anted to k now.” L eon testif ied that th

e Defe ndant told

him he wasju s t visiting the victim. Leon reported that he told the De fendant that it did not “look right” f or th e Defendant

to be in the house at

night with all the lights off and that if he wanted to visit in the future,-5-

the Defendant should come in the d a ylight or let someone know. Leon stated that he had no conversation with the victim about the Defendant’s visit that evening. L eon testified that when the police arrive d, he told t

he offic ers that i

t seemed tha t there had been a misunderstanding, and the police left. He then asked the Defendant to lea ve and to “[p]lease respect [his] wishes as a friend and not come back at that time of night.”

On cross-e

xamination, Leon

testifie d that whe

n he was a

t the victim’s house , the vict im did notappear hy sterical but that she seemed “a little shook up.” He stated, howeve r, that “sometimes [the victim] gets that way without any thing.” He also stated that because h is brother and his brother’s wife had

told him that t he vic tim o ccasio nally mo tion s to p eople and fl ags them down from the street, he had previously had conversations with the victim telling he r not to d o that or to let anyone into her house

after dark. Virgie Redden, t

he victim’ s sister, t

estified that the victim

was a nor

mal child u

ntil the age of two when sh e had an ear infection with a fever that rose to 107 degrees, resulting in par alyzed speechcells an d some mi nor brain dam age. Redden stated that the victim had been living on he r own since 1995 and that she is capable of taking car e of herself, including doing all he r own co okin g, washing and housework. Redden testified that the victim needs help only with her grocery and other shopp ing. Redden reported that the members of the family who live nea

rby che ck on the v

ictim frequently.

Redden testified that she had known the Defendant all her life a nd that the Defendant and

his wife were “ old family

friends.” However, Redden testified that sometime before Dec ember 1999, she told the Defendant “face-to-fa ce” that she did not want him to be alone with the victim. Redden confirmed that the Defendant knew about the victim’s disabilities and her c ondition.

Redden testifie d that on the night o f Dece mber 6, 19 99, she ha

d been ou t to dinner with some friends and co-w orkers. She stated that when she returned home around 9:45 or 10:00 p.m., there
was a message on her answering machine from

Sherry Orr telling her

to call assoon as she

got home and telling h

er that it was impor

tant. Redd

en state d that af

te r returning the call, she called the Defendant, but he would not talk on the phone, so she went to his house.

Redden testified that when she arrived at the Defenda nt’s home, she asked him what he had been doing at her sis ter’s house with a ll the lights out. The Defendant would only reply that he ha

d made an erro

r in judg ment. Redde n stated that she continued to ask questions, but the Defendant refused to answer, other than to say that he hadalready

talked about it with Leon and that they had workedout the misunderstanding. Redden testified that sh e called Leon, and he denied having discussed it with the Defendant. Redden testified that she did not call the victim prior to going to the Defendant’s house. Redden stated that the Defe ndant was “cocky

. . . and that he was sweating real bad.” Redden said the Defenda nt’s wife was also there during the conf rontation.

After leaving the Defendant’s house, Redden said she saw a lig ht on at the victim’s home,
so she went to check on her. Redden reported that she stepped onto the front porch and looke d in-6-

the windo w thro ugh the hole in the blinds. She testified the victim was “sitting on the love seat and she was cry

ing, gulping c

ry ing. She

couldn’t hardly get her breath.” Redden stated tha t when she knockedon the door, the victim jumped up and ran through the kitchen, y elling, “No, Kenneth! No, Kenneth!” Redden testified that when she identified herself, the victim came to the door a nd let her in, and they sat down on the love se at.
Redden testified that the victim was shaking and cry ing hard and h a d broken out in a bad sweat. Redden st

ated tha t she held the victim

and said, “[W]hateve

r happen ed here tonight, let’s tal

k about it. We’ll deal with it. We’ll go on from here.” Redden testified that the victim then told her that the Defendant came inside uninvited . Redden said the victim cried some more, but Redden testified that afte

r more a ssuranc es, the vi ctim “took [Redden’s ] hand and s he moved [Redden’s] hand over and she took [Redden’s] hand . . . and made one finger, and when she did, sh

e put it between her leg s and show ed that [the Defend ant] had gone inside o f her wit h his finger.” Redden testified that the victim had said, “up me” and was unable to say the word “inside.” Redden testified that the victim started to cry a gain, and after telling her tha t they would “de al with

it,” Redden went home.

The victim, Frances Orr, testified that she was “three-one” y ears old. In one- to three-w ord
answer s, the victim testified that she lived in “Daisy,”that she does not know how long shehas lived there, but that she had never lived any where else. The vi ctim wa s shown photographs which she identified as “[h]ouse, my house[,] . . . [m]y door[,] . . . [m]y bed” a nd “Ken house.” She named
some of her f

amily . The vic tim

said “night” when asked if she remembe red the night

the Defendant
came to her house when she was alone. She testified that she to ld him “no”when he a sked to co me inside, but she did

not reme mber wha t he said. The victim testified that she was wearing a “g own” and that when the Defendant came in, the lights inside the house were “off.” When asked how they were turned off, she said “Kenne th.” She testified that she did not want the Defend ant to come in the house.

When asked if the Defendant made her go to any other rooms in the house, she stated “bedroom.” She testif

ied that sh

e did not r

emember him kissi ng her in the bedroom or any time. When asked if he removed any of her clothes, she said, “[p]ants off.” She did not remember say ing anything to the D efendant.

The victim testified that when she and the Defendant we re in the bed room, the Defendant touched her with his “hand” and indicated where. When aske d if the Defendant didsomething

with his finger, the victim said, “[u]p me.” She was asked to stand a

nd demonst

rate, a nd when a sked if she meant “down where your underwear goes,” the victim said, “[y]eah.” She repo rted tha t it did nothurt. The victim testified that she said, “No, Kenneth .” The vi ctim state d that “L eon” ca me to the door, but she did not open it. When asked why, she sa id, “Kenneth.” She testified that the police came, and she confirmed that shewas upset. She also said she remembered telling Virg ie Redden what had happened.-7-

On cross-e

xamination, the victim

testifie d that prio

r to the incid

ent with th

e Defe ndant, she
was on the front porch when the Defendant wa lked down the road. She reported that he was standing at the end of her driveway , that he turned around, and that he cam e back into her house. She testifie d that the

y sa t in the livi ng room, but she was not trying to talk to him. She remembered the Defendant asking her what she was trying

to say. Mary Catherine Spada testified that she is a nurse practitioner whoperforms examinations when assaults are alleged of women and c hildren eighteen y

ears of age and

under. She testified that she had a professional visit with the victim. She stated that she took a history from the victim and examined her. She testified that she was unable to perform a speculum exam, but did not “push for”
one because there was no history of penile penetration. Spada stated that her findings were normal and were not inconsistent with digital penetration. Spada testified that with digital cases, she would notexpect any damag e at all. On cross-examination, Spada acknowledged that she could not make a conclusion from the inspection.

Alice Brown testified she is a detective with the Soddy Daisy Police Depa

rtment with twen

ty ye ars’ experience. She testified that in December 1999, she took statements from family membe rs in this case and also talked to the Defendant. She testified that after the Def endant was advised of his rights, she interviewed him regarding the offense. Brown stated that she wrote a report of what was said immediately af

ter the interview. She testified that the Defendant also provided a written statement.

Brown stated that the Defendant told her that he had been walking in the area of the victim’s house on the night in question because he had some stomach problems, and the victim wa ved for h im to come into the house. The Defendant testified that by the time he re ached the door, the victim had closed it. He reported that he went around to the back of the house and then went to the front again, by which time the victim had opene d the door. According to the Defendant, the victim let him in. Brown noted tha

t all of thi s informa

tion was a lso in the D efenda

nt’s writt en state ment. She testified that the Defendant also told her in the interview that it had been several months since he had been to the victim’s home because he really did not have a reason to be there.

Brown testified that

she informed the Defendant of the alleg ations. She also testified that she told the Defendant that there was a witness to the offe nse, andshe stated that he responded that he d id not know how m

uch someo ne could s ee peep ing thro ugh a window blind

with no lig

hts on in the house. She stated that she told the Defendant that rape had bee n alleged, and she described what constituted rape. Brown testified that the Defenda nt “said he was not going to admit to a rape. He didnot d eny anything. He ju st stated t hat he wa s not goin g to admit to a rap e.” On crossexaminatio n, Brow n was unsu re wheth er she ha d asked th

e Defe ndant if h e had ev er had se

x with the victim. After reviewing her not es , Brown testified that her notes indicated that the Defe ndant had denied any

prior sexual encounter with the victim.

The Defendant’s wife, Sharon Fay Stewart, testified that she had been married to the Defendant

for thirty-three y

ears and that they

lived close to the victim’s home in Soddy-Daisy . She-8-

stated that she had known and been friends with the victim for “a g ood thirty y ears.” She also stated that she had known

Virgie Redden the same le

ngth of time. Ste

wart sta ted that d uring Re dden’s vi sit to their home on December 6, 1999, Redden indicate d th at she had talked to the victim and had askedher some questions before arriving at the Stewart house. Stewart also stated that she and the Defendant

encountered Redden sometime before Dec ember 6, 1999 at a restaurant, and during that meeti ng, Redden had invi ted them to visit the victim “anytime” to see some re modeling she had done.

The Defendant

testified tha t he had known the victim all of her life and that he had been friends with her and her family for a long time. He stated that at around 6:15 p.m. on December 6, 1999, he h ad gone

for a wa lk becau se his stomach was hurting. The Defendant recalled that as he approached

the victim’s house, he saw her on the front porch and Ada m Orr leaving from the back porch. He testified that he “threw up his hand” to wave at Adam. H e testifi ed that the victim motioned for him to come to her, but he walked farther down the r oad before turn ing back and approaching the victim’s door. Later, on cross-examination, the Defendant clarified that after the victim called to him, but

before he retur ned to her house, the victim closed her door. The Defenda nt stated that when he knocked on the victim’s doo r, there was no an swer. Kn owing th at the vic tim likes to sit on the back steps, the Defendant stated he walked ar o und to the side of

the house and calledher name . He te stified that the victim did not answer, so he walked back to the road. He stated t hat as he reached the road, the victim again opened the front door a nd called to him. The Defendant reported that the victim held the door for him as they walked into the house.

The Defendant testified

that they sat on differ

ent couches in the living room and talked. He stated that the victim “was trying to tell [him] something that night, and [he] never could figure out what she w as trying

to say.” He e

xplained, “She’s a little hard to follow sometimes . . . .” The Defendant

testified t hat after the victim made three attempts to tell him something, she got up, walkedto him, sat d

own besid

e him, and put her head

against his shoulder. The Defendant repor ted that th e vi cti m “r eac hed up a nd k is sed [h im ] o n t he l ip s.” He s tat ed, “It was just a little, fr iendly kiss on the lips.”

The Defendant testified

that after the victim kissed him, she got up and went to the kitchen. When she came back, the Defendant stated that he was preparing to leave because heneeded to go home and get ready

for work. According to the Defe ndant, the victim “c ame to [him], t ook [his] hand.” The Defendant then testified, “There’s an over head lig ht. [The victim] reached up, pulled the light swit ch, wal ked into her bedroom and sat down on her bed, on the cot. I sat down first.” The Defendant stated that the victim kept try ing to tell him something and kept pointing toward the road. The Defendant testified that he heard a noise out back and went to look. He stated that he saw something moving on the back porch, so he opened the door and saw two shadows down at the front of the stairs. He stated that at that time, Leon O rr arrived.

The Defendant testified that when L eon Orr knocked

and told the victim to open the door, she said “no Leon.” The

Defendant stated that he told the victim to open the door for her brother, butshe refused, so he opened the door. The Defendant reported

that Leon asked what wa s happening-9-

and he explained tha t he was ju st t here talking with the victim. The Defendant testified that the police arrive d and took

names, addresses, and phone numbers. He reca lled that the officer asked for
some lights to b e turned

on beca use ther e were no lightson in the house except one in the bed room. According to the Defendant, after the police left, the D efendant and Le on talked for a minute. He stated that Leon then talked to the victim and warne d her about “flagging down” people. After the Defendant

engaged in a short exchang e of words with Sherry Orr a n d another such exchange of words wit h Adam Or

r, ever yone left.

Fi na ll y, the Defendant testified regar ding Virgie Redden’s visit to his house. He stated that Redden ha d called him to talk, but he invited her to come to his house to talk in person. The Defendant

reported that he, Redden, and his wife had a “nice

conversation” about what happened. He also reported that Redden told him that she had talked to the victim before arriving at his house. The Defendant stated that Redden left at approximately 10:00 p.m. Finally, the De fendant denied digitall y penetrating the victim’s vagina. He ma intaine d that he was not sexually attracte d to the victim.

III. AN ALYS IS

A. Admissibility of Evidence: Excited Utterance

The Defendant contends in t his appealthat the trial court erroneously allowed Virgie Redden,
over the objection of defense counsel, to testify about the account of the offense that the victim had given to her on the evening of the offense. Specifically, the De fendant argues that

such evidence was inadmissib le he ar sa y. G en er al ly, the admissibility of evidence is entrusted to the sound discre tion of the trial cour t, and a trial court’s ruling with rega rd to the admissibility of evidence will not be reversed on appeal absent an

abuse of discretion. State v. James , 81 S.W.3d 751, 760 (Tenn. 2002); Statev. Carro ll , 36 S.W.3d 854, 867 (Tenn. Crim. App. 1999). “An abuse of discretion exists when the reviewing court is firmly convinced that the lower court has made a mista ke in that

it affirmatively a

ppears that the lower court’s decision has no basis in law or in fact and is therefore arbitrary , illogical, or unconscionable.” State v. Brown & Williamson Tobacco Corp. , 18 S.W.3d 186, 191 (Tenn. 2000).

“‘ He ar sa y’ is a statement, other than one made by the declarant while testify ing at the trial
or hearin g, offered in evidence to prove the truth of the matter asserted.” Tenn. R. Evid. 801(c) . As
a general rule, hearsa

y is not admissible at trial except as provided by the rules or otherwise by

law. Tenn. R. Evid. 802 . “The de terminat ion of whe

ther a statement is hears ay and whet

her it is admissible

through an except ion to the hearsay

ruleis left to the sound discretion of the trial court.” Statev. Stout , 46 S.W.3d 689, 697 (Tenn. 2001). As such, an appella te court will not re

verse a trial court’s ruling regarding the admission or exclusion of hearsay e vidence absent

a clear showing that it abused its discretion. Id.

The trial court admitted the statement in this case under the excited utt

erance exception

to the h earsay

rule. Te nnessee Rule of Evidence 8 03(2) pr ovides tha

t an other

wise inad mi ssibl e-10-

hearsay statement is admissible if it “relat[es] to a startling event or condition

[and is] made whil e the declarant was under the stress of excitement cause d by the even t or condition.” I

n order f or this exception to apply, three r equirements must be met: (1) there mu st be a startling event or condition; (2) the statement must “relate to” the startling event or condition; and (3) the declarant must have made the statement

while under the stress or excitement of the event or condition. Stout , 46 S.W.3d at 699-70 0; State v. Gordon , 952 S.W.2d 817, 820 (Tenn. 1997).

The rationa

le for a dmitting s uch state

ments, known as “excited utterances,” is twofold: “First, since this exception applies to statements where it is likely there
was a lack of reflection--and potential fabric ation--by a decla rant who spontane ously exclaims a stateme

nt in resp onse to an

exciting event, there is little lik

elihood, in theory at least, of insincerity. . . . Second, ordinarily the state ment is made while the memory of the event is still fresh in the declarant’s mind. This means that the out-ofcourt st atement about an event may be more accurate than a much late r in-court description of it.” Gordon , 952 S.W.2d at 819-20 (quoting Neil P. Cohen, et al., Tennessee L aw of Evidence § 803(2).1, at 532 (3d ed. 1995)).

The Defendant relies on our supreme court’s lang uage in State v. Smith , 857 S.W.2d 1 (Tenn. 1993), to contend that the circumstances of t his case do not justify the admission of the hea rsay evidence under this exception. See id. at 9. Smithholds that “[t]he ultimate test is spontaneity and logical relation to the main event and where an act or de claration springs out of the transac tion while the pa rties are still laboring under the excitement and strain of the circ umstances and at

a time s o near it as to preclude the idea of deliberation and fabr ication.” Id. First, the Defendant argue s that the State fa

iled to pinp oint the “ startling event.” He asse

rts that the victim could have been startled either when her brother, L

eon Orr, knocked on her door approximately five to ten minutes after the De fendant

arrived, or when her sister, Virg ie Redden, knocked on her door later, after 11:00 p .m
. The Defend ant asse

rts that bec ause the

victim cou

ld have been startl ed by

an even t other tha

n his encounte r with her, the State failed to satisfy the first prong of the test for admissibility , without which the entire e xception f

ails.

We respectfully disa

gree. “Although the ‘star tling event’ is usually the a c t or tran saction upon which the leg al contr oversy is based, such as an assault or accident, the exception is not limited to statements arising directly from such events; rather, a subsequent startling e vent or con di tion which is relatedto the prior event can produce an excited utterance.” Gordon , 952 S.W.2d at 820. “‘[A]nyevent deemed startling is sufficient.’” Id. (quoting Neil P. Cohen, et al., Tennessee Law of Evidence § 80 3(2).2, at 53 (3d ed. 1995)). Similarly, the second requirement, that the statement “relate to” the startling event or

condition, can be satisfied in many ways. “‘[C]onsiderable leeway is available,’ because the statement ‘may describe all or part of the event or condition, or deal with the effect or impact of that event or condition.’” Id. (quoting Neil P. Cohen, et al., Tennessee Law of Evidence , § 803(2).2, at 53 (3d ed. 1995)). Consequently , even if the victim was upset by either her brother ’s or her

sister’s arriva

l, stateme nts made b y th

e victim a s a reaction to that stress can-11-

qualify as exci ted utterances, if it triggere d a revival of the excitement or stress concerning and “relating to” th

e main tra umatic ev ent. Second, the Defendant challenges the State’s assertion, based ontestimony by the victim’s sister, Virgie

Redden, that the victim was hyster ical, could not breathe, and was cry ing just before the victim made her excited statement. The Defendant challeng es this assertion as a “stretch of the evidence.” The State

points out that when Redden arrived at the victim’s house, she could see that the victim was “on the couch, cry ing and shaking.” Redden testified that she looked throug h a window and saw the victim cry ing before she knocked on the door. It is reasonable to conclude that the victim wa s react

ing emot ionally to her encounter with the Defendant, which fur ther supports the State’s argument that the trial court correctly determined that the victim’s statement to Redden was an “excited utterance.”

Fi na ll y, the Defe

ndant cha llenge s the spont

aneity of the victim’s statements and asserts that the victim could not have been “still laboring under the excitement caused by the event or condition” because of the amount of

time that passed between the Defendant’s visit and the victim’s statement to her sister. However, [t]he time interval is but one consideration in determining whether a stateme nt was made under str

ess or exc itement: “ Other re levant c ircumsta

nces inc lude th e n ature and seriousness of the

event or cond ition; the appearance, behavior, outlook, and circumstances of the declaran t, including suchcharacteristics as age a nd physical or mental condition ; and the c ontents of the state ment it self, which may indicate the presence or absence of stre ss.” Id. “[T]he ‘event must

be sufficiently star

tling to suspend the normal, reflective thought processes of the declarant.’” Id. (quoting McCormick on Evidence , § 297, at 854 (3d ed. 1984)). In this case , we f ind the trial court well within the bounds of its discretion to find that the victim was laboring under the strain and exciteme

nt cause d by

the main st

artling event. T his issue iswithout me

rit.

B. Lea ding Dir ect Examin ation of th

e Victim The Defendant next argues that the trial cour t erred in allowing the prosecution to lead the victim during d irect exa mination. T

he State d

oes not dis pute th at the pr osecutor used leading questions to elicit testimony from the victim, but it contends that this manner of examination was appropr iatein this case. “[T]he propriety, scope , manner and control of the examination of witnesses is a matter

within the discretion of the trial court.” State v. Caughron , 855 S.W.2d 526, 540 (Tenn. 1993). Tennessee Rule of Evidence 611(c) provides that “[l]eadingquestions should not be used on the direct e

xamination o f a witne ss except a s may be nece ssary

to develo p testimony .” “I

t is within the discretion of the trial court whether to allow the use of leading questions on direct examination, and its decision in this regard will not be reversed absent an abuse of discretion.” Kong C. Bounnam
v. State , No. W2001-02603-CCA-R3-PC, 2002 Tenn. Crim. App. LEXI S 1097, at * 26 (Tenn . Crim. App., Jack son, J uly 9, 20 02) (ci ting Mothersh ed v. State , 578 S.W.2d 96 , 99 (Tenn. Crim. App. 1978)).-12-

The State suggests that the well-settled rule recognizing a trial c ourt’s dis cretion to permit leading questions of

child sex offense victims, see Swaffor d v. State , 529 S.W.2d 748, 749 (Tenn. Crim. App. 1975), should apply to this case. The ment al capacity of the victim in this case is not well established. When asked about the victim’s condition, the victim’s sister-in-law, Sherry Orr, testified, “She does everything for herself.” When asked about the victim’s disabilities, she stated, “She just can’t talk, can’t speak.” The victim’s brother, L eon Orr, testified, “I c an’t say that she’s
me ntally retarded but she is mentally challeng ed . . . . She doesn’t talk very well.” The victim’s sister, Virgie Redden, testified that when the victim was two y ears old, she had an ear infection and
a fever that rose to 107 degrees, resulting in par alyzed speech c ells and some minor brain damage. Redden also stated that the victim “live[s] on her own” and is capable of taking care of herself except for doing her own shopping. While the record does indicate that the victim in this case is impaired in some way, no expert testimony was presented to define her disabilities.

Neverth eless, the tender age of a victim is not the only basis on whi ch a trial court may permit leading a witness on direct exa mination. At the bench conference on the Def endant’s objection to leading questions, the prosecutor argued that the necessity for

the leading questions was basednot only on

mental condition, but also on the victim’s severe speech impediment. Our Court has previous ly

held that a trial court did not abuse its discretion in allowing only leading questions when “[t]he record

clearly demonstr ate[d] that eliciting testimony

from [the] victim

was par ticularl y difficul t, perhaps due to age and perha ps due to physical impairment,” when “[ m]ost answ ers comprised only one to two words,” and when “[t]he most critical questions often had to be repeated,” Statev. Craig A

llen L ewis , No. 01C01-9307-CC-00232, 1995 Tenn. Crim. App. LEXI S 33, at ** 18-19 (Tenn. Crim. App., N ashville, Jan. 12, 1995). In another case , State v. Caughron , the Tennessee Supreme Court upheld the leading direct examinationof a witness who was “y oung and highly emotional.” 855 S.W.2d at 538. I n supporting its decision, the Court mentioned that “in . .

. [§ 611 .6 of

] Tennessee Law

of Evidence , the writers suggest that leading questions may be used to shorten the time needed for a witness to testify or to facilitate the dire ct examination of a young
or otherwise impaired

witness.” Id. (em pha si s ad ded ). In this case, it is undisputed that the victim could not express herself as other witnesses can. We agree with the State that the trial court acted within its discretion in allowing the State to lead the victim during her testimony

. C. Sufficiency of

the Evidence

The Defendant argues that insufficie ntevidenc e was pr

esented to convic t him

of attempted sexual battery. When an a ccused challenges the sufficie ncy of the e

vidence, an appellate court’s standardof review is whether, after consider ing the evi dence in the light most favorable to the prosecution, any r

ational trier of fact could have found the essential elements of the crime bey ond
a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. V irginia , 443 U.S. 3 07, 324 (1 979); State
v. Duncan , 698 S.W.2d 63, 67 (Tenn. 1985). This rule applies to findings of guilt based upon direct eviden ce, circu mstantial evidence, or a combination of both direct and circumstantial evide nce. State v. Pe

nderg rass , 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999).-13-

In determin

ing the s ufficie

ncy of the ev idence, this Court should not re-w eigh or re-eva luate the evidence. State v. Matthews , 805 S.W.2d 77 6, 779 (Te nn. Crim. A

pp. 1990) . Nor may

this Courtsubstitute its inferences for those drawn by the trier of fact from the evidence. State v. Buggs , 995 S.W.2d 102, 1 05 (Tenn . 1999); Liak as v. State , 286 S.W.2d 856, 859 (Tenn. 1956). Questions concerning the credi bility of th e witness es, the w eight a nd value o f the evi dence, as well a s all factual issues raised by the e vidence are resolved by

the trier of fact. Liakas , 28 6 S.W .2d at 859. This Court must afford the State of Tennessee the stronge st legitimate view of the evidence containedin the record, as well a s all rea sonable inferences which may

be drawn from the evidence. Statev. Evans , 838 S.W.2d 185, 191 (Tenn. 1992). Because a verdict of guilt against a Defe ndant
remove s the presumption of innocence and raises a presumption of g uilt, the convicted criminal Defendant

bears the burden of showing that the evidenc e was legally insufficient to sustain a

guilty verdict. Id.

“Sexual batt ery

is th e unlawful sexual contact with a victim by a defendant accomplished without the consent of the victim and the defendant knows or has rea son to know the victim did not consent; [or when] . . . [t]he defe ndant kno ws or has reason t o know tha

t the victim is menta lly defective, mentally incapac itated or physically helpless . . . .” Tenn. Code Ann. § 39-13-505(a)(2)- (3). Sexual contact includes the intentional touching of the victim’s intimate parts or the clothing covering those

part s, if it can

be re ason ably

cons true d as b eing

for t he pu rpos e of s exu a l gratification. Id. § 39-13-501(6). Attempt of a crime requires that the def endant take a

substantial step toward the actual commission of the underly ing crime with intent to complete it. See id. § 39- 12-101(a)(3).

In this case, the victim’s testimony indicated that the Defendant attempted to, or actually did, intentiona

lly touch the victim ’s intimate parts for the purpose of sexual arousal or gra tification. At trial, the victim

testifie d that the

Defend ant turne d off the lights in h

er house and made

her go into the bedroom with him. She also testified that the Defendant took off her underwear and touched he r withhis hand. While pointing to the area between her leg s, the victim testified that the Defendant’s finger was “up” her. The victim testified that she told the Defendant

“no.” Adam Orr testified that he saw the Defendant

inside the

victim’s h ouse and

witnesse d the Def

endant ki ss the victim on the cheek. He furth

er testif ied that he witness ed the De fendant turn off the ligh t in side the victim’s house. Virgie

Redden testified that the victim told her that the Defendant put his finger on or inside her va ginal a rea. Redden testified that the victim pointed to the area betwee n her legs and stated, “Up me.” The Defendant admitted at trial that he went into the victim’s bedroom at night while the lights were off

in the house and sat down on her bed. However, he asserted tha t the victim was the
one who kissed him and led him into her bedroom, and he de

nied any sexual con

tact with the victim

. Considering the evidence in the light most favorable to the prosecution, we f ind that the proof presented in this case demonstrated a sufficient basis from whic h the jury could re asonably have determinedthat the D efenda nt took a su

bstantial step towa rd actua l unlawful sexual co ntact wit h the victim, wit

h intent to c omplete

the crime, when he knew or had reason to know the victim did not-14-

consent. We therefore conclude that sufficien t evidenc e supports the Defendant’s conviction for at te mp te d s ex ua l b at te ry.
CONCLUSION

For the foregoing reasons, we find no error and therefore AFFIRM the judg ment of the trial court.

___________________________________ ROBERT W. WEDEMEYER, JUDGE