            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT JACKSON
                                Assigned on Briefs August 5, 2014

                   STATE OF TENNESSEE v. RODRIQUEZ JONES

                      Appeal from the Criminal Court for Shelby County
                        No. 12-03877     J. Robert Carter, Jr., Judge


                   No. W2014-00193-CCA-R3-CD - Filed August 13, 2014


Appellant, Rodriquez Jones, was convicted of aggravated sexual battery and sentenced to ten
years in the Tennessee Department of Correction. On appeal, he argues that the evidence
was insufficient to support his conviction and that the assistant district attorney general
committed prosecutorial misconduct during closing arguments. Following our review, we
affirm the judgment of the trial court; however, we must remand this matter to the trial court
to correct the judgment form.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed;
                                  Case Remanded

R OGER A. P AGE, J., delivered the opinion of the court, in which T HOMAS T. W OODALL and
A LAN E. G LENN, JJ., joined.

Gerald S. Green, Memphis, Tennessee, for the appellant, Rodriquez Jones.

Robert E. Cooper, Jr., Attorney General and Reporter; Tracy L. Alcock, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Abby Wallace, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                                 OPINION

        This case concerns the aggravated sexual battery of D.W.,1 a child under thirteen years
old, alleged to have occurred between December 1 and December 16, 2011. A Shelby
County grand jury indicted appellant for this offense, and his case proceeded to trial in July
2013.

        1
          It is the policy of this court to refer to minor victims by their initials to protect their privacy. In
furtherance of this policy, we will also refer to the victim’s family members and other witnesses of minor
age who testified at trial similarly.
                                            I. Facts

       At trial, D.W. testified that at the time of the trial, she was twelve years old. In 2011,
she lived with her mother and six of her twelve siblings. The victim said that she had her
own room but that her younger brothers would sometimes sleep in her room. Appellant was
her mother’s “friend,” and he occasionally spent the night at their house. The victim testified
that appellant started coming into her room in early December 2011, when she was eleven
years old. She said that he touched her vagina over her clothes. The victim explained that
she slept under her covers but that appellant would move the covers to touch her. He did not
remove her clothes. She estimated that he came into her room five different times. The
victim said that she told him, “‘No,’” once but that he only stopped when her brothers entered
the room.

        The victim recalled one occasion when she and her younger brother were wrestling
with appellant in her mother’s room. She stated, “I got flipped over the bed, and he had
pulled half of his stuff out and tried to put it in my pants, but he couldn’t unbutton my pants.”
She clarified that “his stuff” meant “his private part.” The victim testified that one day,
appellant asked her, “‘[W]hy you [sic] let other boys touch you but I can’t[?]’” She said that
she replied, “‘I don’t let other boys touch me and he can’t.’” The victim said that she did not
tell her mother about what appellant was doing right away because she was afraid “he might
do something.” She changed her mind after talking about the situation with a friend, T.F.,
who encouraged her to inform someone. After she told her mother what had happened, her
siblings “jumped” appellant. Thereafter, the police arrived. She talked to the police about
what happened, and her interview was videotaped. On cross-examination, the victim agreed
that her older siblings were close in age to appellant and that they did not “particularly like”
appellant.

      The victim’s friend, T.F., testified that the victim told her what appellant had done to
her when they were discussing why they hated their mothers’ boyfriends. T.F. told her
mother what the victim said.

        The victim’s mother (“Mother”) testified that appellant was her “former friend.” She
said that appellant had lived around the corner from her with his “baby mama” but would
occasionally stay the night at her house. Mother recalled that appellant treated the victim
differently than her other children, explaining, “He would always . . . take up for [the victim]
and always bring her some drinks and stuff, candy.” Mother said that she did not know that
anything inappropriate had occurred between the victim and appellant until T.F.’s mother
called her. Mother also spoke with the victim about the situation. After the victim told
Mother’s other children what happened, some of her children fought with appellant. Mother
called the police, but appellant left her house before the police arrived.


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       On cross-examination, Mother agreed that she sold candy and drinks from her home.
She further agreed that her older children did not like that she was dating a man who was
close to them in age. She said that she did not care that appellant had been living with his
child’s mother.

        One of the victim’s younger brothers (“Brother”) testified that he occasionally slept
in the victim’s room. He recalled seeing appellant “creeping . . . in” the victim’s room “at
night, and he pulled the cover to the side and he pulled [Brother] and [his] other little brother
off the bed, and he pulled down [the victim’s] pants.” Brother said that he was awake when
this happened but that he did not say anything. He further said that he put his hand over his
mouth to keep from saying anything because he believed that if he said something, appellant
would have become scared and would not come back. He gestured to show how appellant
touched the victim’s private part, and the assistant district attorney general described
Brother’s gesture as “a tapping motion.” Brother testified that he saw appellant touching the
victim in this manner three times and that the third time, appellant also touched the victim’s
chest. Brother said that one time occurred on December 18.2 He said that he told one of his
older brothers and his mother about what he had seen.

       On cross-examination, Brother said that the victim’s friend had been the one who told
him that something happened on December 18. Brother agreed that his mother was “the
candy lady” for the neighborhood and that people would come to their home to buy candy.
On redirect examination, Brother testified that he did not like appellant because appellant
treated the victim better than he treated him.

       Shelby County Sheriff’s Deputy Jessica Hawkins testified that on December 19, 2011,
she responded to a sexual assault call at the victim’s residence. She observed some blood
inside and outside the house and later learned that appellant had been in a fight with one of
the victim’s brothers. Because appellant had left the residence, Deputy Hawkins took
statements from the victim and Mother. She then contacted her supervisor.

        Shelby County Sheriff’s Sergeant Natalie Hillman testified that she worked in the
Special Victims Unit. She responded to the victim’s residence on December 19, 2011, and
spoke with the victim and Mother. Sergeant Hillman then scheduled forensic interviews for
the victim, Mother, and Brother. The victim’s and Brother’s interviews occurred at the Child
Advocacy Center, and Sergeant Hillman observed both interviews. Sergeant Hillman
testified that the victim indicated that the last incident with appellant happened four days




        2
           We recognize that this date is outside the scope of the indictment. It is also inconsistent with the
victim’s testimony regarding the dates that appellant touched her.

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prior to December 19. Sergeant Hillman further testified that she interviewed appellant, who
indicated that he was twenty-four years old at the time of the allegations.

       On cross-examination, Sergeant Hillman said that in his interview, appellant told her
that he had wrestled with the victim and that if he had touched her, it was accidental.

        Following the close of proof, arguments of counsel, and deliberations, the jury found
appellant guilty of aggravated sexual battery as charged. The trial court sentenced him to
serve ten years in the Tennessee Department of Correction with a release eligibility of 100%.

                                         II. Analysis

                               A. Sufficiency of the Evidence

       Appellant contends that the evidence was insufficient to support his conviction for
aggravated sexual battery. Specifically, he argues that the State’s witnesses had “reason and
motive . . . to lie” and that other persons might have committed the offense when they entered
the victim’s home to buy candy from her mother. The State responds that the evidence was
sufficient for any rational jury to find appellant guilty of aggravated sexual battery. We agree
with the State.

       The standard for appellate review of a claim challenging the sufficiency of the State’s
evidence 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
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (citing Johnson
v. Louisiana, 406 U.S. 356, 362 (1972)); see Tenn. R. App. P. 13(e); State v. Davis, 354
S.W.3d 718, 729 (Tenn. 2011). To obtain relief on a claim of insufficient evidence, appellant
must demonstrate that no reasonable trier of fact could have found the essential elements of
the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319. This standard of
review is identical whether the conviction is predicated on direct or circumstantial evidence,
or a combination of both. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011); State v.
Brown, 551 S.W.2d 329, 331 (Tenn. 1977).

       On appellate review, “‘we afford the prosecution the strongest legitimate view of the
evidence as well as all reasonable and legitimate inferences which may be drawn
therefrom.’” Davis, 354 S.W.3d at 729 (quoting State v. Majors, 318 S.W.3d 850, 857
(Tenn. 2010)); State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983); State v. Cabbage, 571
S.W.2d 832, 835 (Tenn. 1978). In a jury trial, questions involving the credibility of
witnesses and the weight and value to be given the evidence, as well as all factual disputes
raised by the evidence, are resolved by the jury as trier of fact. State v. Bland, 958 S.W.2d
651, 659 (Tenn. 1997); State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990). This court

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presumes that the jury has afforded the State all reasonable inferences from the evidence and
resolved all conflicts in the testimony in favor of the State; as such, we will not substitute our
own inferences drawn from the evidence for those drawn by the jury, nor will we re-weigh
or re-evaluate the evidence. Dorantes, 331 S.W.3d at 379; Cabbage, 571 S.W.2d at 835; see
State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984). Because a jury conviction removes
the presumption of innocence that appellant enjoyed at trial and replaces it with one of guilt
at the appellate level, the burden of proof shifts from the State to the convicted appellant,
who must demonstrate to this court that the evidence is insufficient to support the jury’s
findings. Davis, 354 S.W.3d at 729 (citing State v. Sisk, 343 S.W.3d 60, 65 (Tenn. 2011)).

       As relative to appellant’s convictions in this case, “[a]ggravated sexual battery is
unlawful sexual contact with a victim by the defendant . . . [where] [t]he victim is less than
thirteen (13) years of age.” Tenn. Code Ann. § 39-13-504(a)(4). Tennessee Code Annotated
section 39-13-501(6) further defines “sexual contact” as “the intentional touching of the
victim’s . . . intimate parts, or the intentional touching of the clothing covering the 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 gratification.” “‘Intimate parts’
include[] the primary genital area, groin, inner thigh, buttock or breast of a human being.”
Tenn. Code Ann. § 39-13-501(2).

        Viewed in the light most favorable to the State, the evidence at trial showed that
appellant entered the victim’s room on multiple occasions and touched her genital area
through her clothing. The victim testified about appellant’s conduct, and the victim’s
younger brother also testified that he had seen appellant touching the victim in this manner.3
The victim told police that the last time appellant touched her was approximately December
15, 2011, four days prior to when she revealed appellant’s conduct to her mother and the
police. The victim was eleven years old at the time of appellant’s conduct. Appellant’s
argument essentially attacks the credibility of the witnesses in identifying appellant as the
perpetrator. However, the credibility of witnesses is a matter for the trier of fact, not this
court. Bland, 958 S.W.2d at 659. We conclude that the evidence was sufficient for a rational
jury to find beyond a reasonable doubt that appellant committed the offense of aggravated
sexual battery.

                                       B. Closing Arguments

      Appellant argues that the assistant district attorney general committed prosecutorial
misconduct during closing arguments. However, appellant did not object at any point during


        3
          The victim also testified about another occasion when appellant tried to unbutton her pants, but
this conduct does not appear to be the basis for the indictment.

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the closing arguments. Generally, failure to object results in waiver of the issue unless the
statements made are so flagrant that they amount to plain error. State v. Banks, 271 S.W.3d
90, 132 (Tenn. 2008). In this case, appellant has failed to establish the need for plain error
review and has failed to cite any legal authority regarding this issue in his appellate brief. See
Tenn. R. App. P. 36(b); Tenn. R. Crim. App. 10(b). Therefore, appellant has waived this
issue for failure to object contemporaneously and for preparing an inadequate brief. Tenn.
R. Crim. App. 10(b); Banks, 271 S.W.3d at 132.

                                         C. Sentencing

        As a matter of plain error, we have observed that the judgment form in this case
indicates appellant’s release eligibility as “Child Rapist 100%” when it should indicate his
release eligibility as “Violent 100%.” See Roger Brent Banks v. Cherry Lindamood, Warden,
No. W2013-00458-CCA-R3-HC, 2014 WL 217662, at *2 (Tenn. Crim. App. Jan. 17, 2014)
(holding that a petitioner’s judgment forms for aggravated sexual battery must be corrected
to indicate release eligibility of “Violent 100%” when petitioner did not meet child predator
prerequisites). Tennessee Code Annotated section 39-13-523(a)(2) limits the child rapist
category to persons convicted of rape of a child as defined in section 39-13-522. Instead,
appellant was convicted of aggravated sexual battery, with no prior convictions for predatory
offenses as listed in section 39-13-523(a)(5). His release eligibility is governed by section
40-35-501(i), which provides that for the enumerated offenses, including aggravated sexual
battery, a defendant must serve 100% of his or her sentence, less sentence credits earned or
retained, not to exceed 15% of the sentence. In contrast, a child rapist’s sentence cannot be
reduced by sentence credits. Tenn. Code Ann. § 39-13-523(b). Therefore, we remand this
matter to the trial court for correction of the judgment form to indicate appellant’s release
eligibility as “Violent 100%.” See Roger Brent Banks, 2014 WL 217662, at *2. All other
aspects of the judgment form shall remain the same.

                                       CONCLUSION

       Based on the record, the briefs of the parties, and the applicable legal authority, we
affirm the judgment of the trial court. However, we must remand this case to the trial court
for correction of the judgment form pursuant to this opinion.




                                                     _________________________________
                                                     ROGER A. PAGE, JUDGE




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