         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                          Assigned on Briefs September 10, 2002

               STATE OF TENNESSEE v. DANIAL R. WILLCUTT

                   Direct Appeal from the Circuit Court for Hardin County
                           No. 8023    C. Creed McGinley, Judge



                  No. W2001-02743-CCA-R3-CD - Filed November 22, 2002



JOE G. RILEY, J., concurring.

         I write separately to express my concern over the continuing problem we see in appellate
records where the record fails to explain witness demonstrations. Nevertheless, I find the evidence
in this case sufficient to support the verdict regardless of this shortcoming. Thus, I do not reach the
issue of which party has the burden of proof with regard to witness demonstrations.

        This court has reached conflicting conclusions as to which party bears the burden of ensuring
that witness demonstrations are adequately explained in the record. Compare State v. Nicholas
Williams, No. M1999-00780-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 491, at *21 (Tenn. Crim.
App. July 3, 2001, at Nashville), perm. to app. denied (Tenn. Dec. 12, 2001) (placing burden on
state), with State v. Daniel Thomason, No. M2000-01164-CCA-R3-CD, 2001 Tenn. Crim. App.
LEXIS 917, at **12-13 (Tenn. Crim. App. July 11, 2001, at Nashville), 2001 Tenn. Crim. App.
LEXIS 819 (Tenn. Crim. App. Oct. 15, 2001, at Nashville) (order denying petition to rehear),
corrected 2001 Tenn. Crim. App. LEXIS 993 (Tenn. Crim. App. Nov. 27, 2001, at Nashville)
(citations omitted), perm. to app. denied “Not for Citation” (Tenn. Apr. 1, 2002) (placing burden
on defendant). Since Thomason was designated “Not for Citation” by our supreme court in its denial
of permission to appeal, I cite it for the sole purpose of noting a split of authority. See Tenn. Sup.
Ct. R. 4(F)(2).

        Regardless of who has the burden of clarifying witness demonstrations, it is routinely done,
in most records we review, by the examining counsel. It is simple enough for examining counsel
to state, "Let the record show that the witness . . . ." Should there be any disagreement as to the
accuracy of the statement, the trial court can resolve the disagreement on the record. In the absence
of such a statement by either counsel, the trial court should sua sponte clarify the demonstration for
the record. This court has no method of evaluating a demonstration in the absence of such a
statement on the record. In short, there is no reason for this recurring problem, especially where the
demonstration is crucial to the case. The most elementary principles of the examination of witnesses
in a criminal case require such attention in order to properly preserve the record.
        However, in this case, I believe the evidence is sufficient to support the conviction regardless
of who has the burden of ensuring an adequate record for witness demonstrations. We view the
evidence in a light most favorable to the state. During the second event in the living room, which
was the event elected by the state, the defendant forced M.B.’s head between Mrs. Willcutt’s legs
telling the victim to “Smell it” and asked the victim to look at Mrs. Willcutt’s “goochie.” The
defendant pushed M.B.'s head under Mrs. Willcutt’s rather large stomach, and his forehead touched
her. According to Mrs. Willcutt, the defendant held M.B.’s head down for several minutes. A jury
could reasonably find the defendant forced M.B. to touch the clothing covering “the immediate area”
of Mrs. Willcutt’s intimate parts. See Tenn. Code Ann. § 39-13-501(2), (6). In addition, a jury could
reasonably construe the defendant’s actions as “being for the purpose of sexual arousal or
gratification.” Id. at (6). This evidence, in my view, is sufficient to support the conviction for
aggravated sexual battery.



                                                               ______________________________
                                                             JOE G. RILEY, JUDGE
