           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT JACKSON         FILED
                              JULY 1997 SESSION
                                                      July 18, 1997

STATE OF TENNESSEE,                   )   C.C.A. No.Cecil Crowson, Jr.
                                                     02C01-9608-CC-00269
                                                    Appellate C ourt Clerk
                                      )
             Appellee,                )   LAUDERDALE COUNTY
                                      )
VS.                                   )   HON. JOSEPH H. WALKER, JUDGE
                                      )
JOE L. PATRICK, SR.,                  )   (Aggravated Sexual Battery)
                                      )
             Appellant.               )



FOR THE APPELLANT:                        FOR THE APPELLEE;

THOMAS T. WOODALL(appeal only)            JOHN KNOX WALKUP
203 Murrell Street                        Attorney General and Reporter
P. O. Box 1075
Dickson, TN 37056-1075                    ELLEN H. POLLACK
                                          Assistant Attorney General
GARY ANTRICAN                             450 James Robertson Parkway
District Public Defender                  Nashville, TN 37243-0493

C. MICHAEL ROBBINS                        ELIZABETH T. RICE
(at trial and of counsel on appeal)       District Attorney General
Assistant Public Defender                 302 Market Street
118 East Market Street                    P. O. Box 302
P. O. Box 700                             Somerville, TN 38068-0302
Somerville, TN 38068-0700




OPINION FILED:


AFFIRMED


JOE G. RILEY,
JUDGE
                                     OPINION


       Defendant, Joe L. Patrick, Sr., was convicted by a jury in the Lauderdale County

Circuit Court of the offense of aggravated sexual battery and sentenced to eight (8)

years in the Department of Correction. He appeals as of right and presents the

following issues for our review:

       1. whether the evidence was sufficient to support the conviction;

       2. whether the victim was competent to testify about the alleged
          incident;

       3. whether the victim’s complaint to her mother was properly admitted; and

       4. whether the trial court properly instructed the jury on the defense of
          intoxication.

We find no error committed by the trial court; therefore, we AFFIRM the judgment.



                                        FACTS



       At the time of this incident in January 1995, the female victim was nine (9) years

of age. The defendant was her paternal grandfather. The state’s proof indicated that

on the date in question the defendant came to the residence of the victim and her

family shortly after midnight. The defendant had been drinking, and the victim’s

parents allowed the defendant to stay in the residence that evening since the

defendant had no other place to go.

       At approximately 4:00 a.m. the defendant awoke the child victim when he

touched her “privacy” and “behind.” The victim told him to stop, and the defendant told

her not to tell anyone “because I won’t do it anymore.”

       The victim was scared and went to her mother’s bedroom and knocked. When

her mother asked what was wrong, the victim replied “never mind.” The same morning

before school the victim told her mother about the sexual assault.




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       The defendant testified in his own defense.          He stated he was heavily

intoxicated that evening and had very little recollection as to his activities. He,

nevertheless, denied that he sexually assaulted the victim.



                         SUFFICIENCY OF THE EVIDENCE



       Defendant first contends the evidence is insufficient to support the conviction

for aggravated sexual battery. In Tennessee, great weight is given to the result

reached by the jury in a criminal trial. A jury verdict accredits the state's witnesses and

resolves all conflicts in favor of the state.   State v. Bigbee, 885 S.W.2d 797, 803

(Tenn. 1994); State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). On appeal, the state

is entitled to the strongest legitimate view of the evidence and all reasonable

inferences which may be drawn therefrom. Id.; State v. Cabbage, 571 S.W.2d 832,

835 (Tenn. 1978). Moreover, a guilty verdict removes the presumption of innocence

which 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

overcoming this presumption of guilt. Id.

       Where sufficiency of the evidence is challenged, the relevant question for an

appellate court is whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the

crime or crimes beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v.

Virginia, 443 U.S. 307 (1979); State v. Abrams, 935 S.W.2d 399, 401 (Tenn. 1996).

The weight and credibility of the witnesses' testimony are matters entrusted exclusively

to the jury as the triers of fact. State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984);

State v. Brewer, 932 S.W.2d 1, 19 (Tenn. Crim. App. 1996).

       Allowing the state the strongest legitimate view of the evidence and all

reasonable inferences therefrom, the jury could rationally conclude beyond a

reasonable doubt that the defendant had unlawful sexual contact with the victim who

was less than thirteen (13) years of age, and the defendant acted intentionally. See

Tenn. Code Ann. § 39-13-504(a)(4). The jury obviously accredited the testimony of



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the victim. The evidence was sufficient to support the verdict.



                              COMPETENCY TO TESTIFY



       Defendant contends the trial court erred in denying his pre-trial motion to

dismiss the indictment based upon the victim’s incompetency to testify about the

alleged assault. More specifically, the defendant contends that the victim’s testimony

at the first trial, which concluded with a deadlocked jury, reveals that the victim did not

have sufficient personal knowledge to testify about the alleged assault. See Tenn. R.

Evid. 602. Defendant alleges that the victim’s testimony at the first trial indicated her

uncertainty as to whether or not this was a dream.

       Firstly, we note that the proper method of attacking lack of personal knowledge

as set forth in Tenn. R. Evid. 602 is not pursuant to a pre-trial motion to dismiss the

indictment. The indictment is not faulty.

       Secondly, our review of the victim’s testimony at the first trial and the instant trial

does not indicate a lack of personal knowledge under Tenn. R. Evid. 602. As noted

by the trial judge in overruling the motion to dismiss, it was primarily a question for the

jury as to whether the offense occurred or whether the victim dreamed the event. At

the instant trial the victim insisted the event occurred and was not a dream. This issue

is without merit.

                               HEARSAY STATEMENTS



       During the direct examination of the child victim, the prosecutor asked her if she

told anybody about this incident the next day after it occurred. The victim testified that

she told her mother. The victim did not testify as to what, in fact, she did tell her

mother. The state also elicited from the victim’s mother during her direct examination

that the child reported the incident to her the morning after its occurrence. Again, there

was no testimony as to the details of the complaint. The trial court instructed the jury

that this testimony was to be considered only for corroborative purposes relating to the

credibility of the victim. Defendant contends the testimony of the victim and her mother



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consisted of inadmissible hearsay pursuant to State v. Livingston, 907 S.W.2d 392

(Tenn. 1995).

       The Tennessee Supreme Court abolished the fresh complaint doctrine as it

applies to child victims. See State v. Livingston, 907 S.W.2d at 392. Similarly to adult

victims, the fresh complaint doctrine had been used to admit statements made by child

victims after sexual abuse as confirmation of their credibility. See State v. Brown, 871

S.W.2d 492, 493 (Tenn. Crim. App. 1993). Since juries would not likely make the

same presumptions which justify the retention of “fresh complaint” with adult victims,

the Court abolished the fresh complaint doctrine entirely and held it did not apply to

cases involving child victims of abuse --- sexual or non-sexual. Livingston, 907 S.W.2d

at 399. Nevertheless, the Court noted that evidence in the nature of fresh complaint

may be admissible as (1) substantive evidence if it satisfies some hearsay exception,

and (2) corroborative evidence if it satisfies the prior consistent statement rule. Id. at

395.

       Livingston concerned the admissibility of testimony of a third party who testified

as to the victim’s statements. In the case sub judice the defendant first attacks the

testimony of the victim herself to the effect that she reported the incident. Firstly, we

note that it is questionable whether this testimony was hearsay since it was not

introduced to prove the truth of the matter asserted. See Tenn. R. Evid. 801(c).

       Even if it was hearsay, however, its admission was clearly harmless. During the

cross-examination of the victim by defense counsel, it was implied that the victim

fabricated this allegation since it was only a dream. Although a prior consistent

statement is not admissible on direct examination absent an impeaching attack on that

testimony, see State v. Meeks, 867 S.W.2d 361, 374 (Tenn. Crim. App. 1993), the

testimony clearly would have been admissible on re-direct examination as a prior

consistent statement. If the testimony was hearsay and erroneously admitted on direct

examination, it was harmless beyond a reasonable doubt.

       The testimony of the victim’s mother is definitely controlled by Livingston. As

noted, however, the child victim’s testimony had been subjected to an allegation of

fabrication before the mother testified. Her testimony was properly admitted for



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corroborative purposes as a prior consistent statement, and the trial judge so

instructed the jury. State v. Livingston, 907 S.W.2d at 395. This issue is without merit.



                      JURY INSTRUCTION ON INTOXICATION



       Defendant finally contends the trial court erred in refusing his written request for

a jury instruction relating to intoxication. We disagree.

       The special request submitted by defense counsel came from T.P.I. - Crim.

40.02 (4th ed. 1995). However, defense counsel omitted various portions of the

pattern charge. The trial court gave this pattern charge which included certain

language omitted by defense counsel. The jury charge as given by the trial judge was

correct in all respects. This issue is without merit.



       The judgment of the trial court is AFFIRMED.




                                                   JOE G. RILEY, JUDGE



CONCUR:


JOE B. JONES, PRESIDING JUDGE




DAVID H. WELLES, JUDGE




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