                                                                                            03/29/2018
           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT JACKSON
                            Assigned on Briefs December 5, 2017

                   STATE OF TENNESSEE v. DWIGHT GOSSETT

                     Appeal from the Criminal Court for Shelby County
                         No. 12-01774       Lee V. Coffee, Judge
                         ___________________________________

                               No. W2016-02159-CCA-R3-CD
                           ___________________________________


The Defendant, Dwight Gossett, was convicted in the Shelby County Criminal Court of
aggravated sexual battery, a Class B felony, and sentenced by the trial court to twelve
years at 100% in the Department of Correction. The sole issue he raises on appeal is
whether the evidence was sufficient to sustain his conviction. Following our review, we
affirm the judgment of the trial court.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and J. ROSS DYER, JJ., joined.

Monica A. Timmerman, Bartlett, Tennessee (on appeal); and Lauren Pasley, Memphis,
Tennessee (at trial), for the appellant, Dwight Gossett.

Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Carrie Shelton and
Bryce H. Phillips, Assistant District Attorneys General, for the appellee, State of
Tennessee.


                                             OPINION

                                               FACTS

       On September 2, 2010, eight-year-old A.R.1 and her six-year-old sister, A.C.R.,
reported to their mother that the Defendant, their stepgrandfather at the time, had touched
       1
           To protect the privacy of the minors, we identify them by their initials only.
them inappropriately during visits to their grandmother’s home. Following an
investigation, the Defendant was indicted for two counts of aggravated sexual battery,
with one count based on his behavior with A.R. and the second count based on his
behavior with A.C.R. In 2013, he was tried before a Shelby County Criminal Court jury,
convicted of both counts, and sentenced by the trial court to an effective term of twenty-
four years in the Department of Correction at 100% release eligibility. State v. Dwight
Gossett, No. W2013-01120-CCA-R3-CD, 2014 WL 6609353, at *1 (Tenn. Crim. App.
Nov. 21, 2014). On direct appeal, this court reversed the convictions and remanded for a
new trial on the basis that the trial court improperly admitted thirty-plus-year-old
evidence of the Defendant’s alleged sexual relationship with a former minor
stepdaughter, and the prosecutor engaged in improper closing argument by suggesting
that a conviction would provide justice not only for A.R. and A.C.R. but also for the
Defendant’s former stepdaughter. Id. at *9-10, *17. At the conclusion of the
Defendant’s second trial, the jury convicted him of the count involving A.C.R. and
acquitted him of the count involving A.R.

       At the February 2016 retrial, Lieutenant Carl J. Ray of the Memphis Police
Department, who was an Investigative Sergeant at the Child Advocacy Center in
September 2010, identified the Defendant’s September 16, 2010 signed waiver of rights
and written statement, which were admitted as exhibits and published to the jury.
Lieutenant Ray testified that he did not provide any specifics of the allegations during his
interview with the Defendant. The statement reflects that when Lieutenant Ray asked the
Defendant to tell him in his own words what had occurred to bring about the girls’
allegations, the Defendant replied:

              Prior to this I only heard about [A.C.R.] There was an incident
       several months ago. I can’t tell you exactly when. I was changing my shirt
       in my room and she would not leave. She started bragging about what she
       has seen on other males including full exposure of the genitals and
       touching. I said, “Mean like this,” and I touch my belt buckle with her
       hand and that was about -- I’m pretty sure I left something out[.] There was
       a shock look on her face, looking surprised that I called her on her
       bragging. From that point on, I never had a problem getting her out of my
       room.

       Elsewhere in the statement, the Defendant denied that he had pulled down his
boxer shorts and exposed himself to A.C.R. and A.R. while instructing A.R. to touch his
penis, that he kissed A.R. on the breasts, or that he inappropriately touched either child.
The Defendant explained that he could have inadvertently touched the victims’ breast
areas while picking them up because they were small children and he had large hands.

                                           -2-
      On cross-examination, Lieutenant Ray acknowledged that the Defendant
voluntarily came to the sex crimes office to be interviewed.

       The victims’ sixteen-year-old cousin, C.J., testified that on Labor Day 2010, he
and his sister were seated together with A.R. and A.C.R. at a Memphis pizza restaurant
when A.C.R. whispered to him that her grandfather had “made her touch his private
parts.” C.J. said he was shocked, so he got up and “told the parents,” who were seated at
a separate table in the restaurant. On cross-examination, C.J. testified that before A.C.R.
made the whispered revelation, she told him that she had a secret to tell him. He said she
had never before shared secrets with him and that they were not particularly close.

       The victims’ mother testified that on September 2, 2010, she was eating dinner at
the pizza restaurant with C.J.’s mother when C.J.’s mother told her that C.J. had just
looked at her and made a funny face. C.J.’s mother called C.J. over to their table to ask
what was going on and he responded that they needed to ask A.R. and A.C.R. When the
victims’ mother realized that the victims had confided to C.J. that something
inappropriate was going on, she left the restaurant and took the victims home, where they
talked. Afterwards, she called her mother, her husband, and the police. Police officers
came to her home that night to take a report and she later took the girls to the Child
Advocacy Center, where they were interviewed outside her presence.

        The victims’ mother testified that in September 2010, A.R. was eight years old and
A.C.R. was six years old. The victims had a younger sister and a brother, who was a
baby in 2010. During that summer, her husband was in Iraq, and she frequently left the
children at her mother’s home on Sunday afternoons so that she could run errands. At
that time, the Defendant was married to her mother and lived with her mother in the same
home. The victims’ mother testified that she talked to the victims about what had
happened when she took them home from the pizza restaurant on Labor Day evening, but
she did not instruct them what to say during their interviews at the Child Advocacy
Center. Prior to the September 2 revelations, she had no indication that anything was
wrong; the victims had never before complained of either the Defendant or anyone else
touching them inappropriately.

       On cross-examination, the victims’ mother testified that, after the incident, the
victims continued to do well in school and did not participate in any formal counseling.
In response to questions from the jury, she testified that the victims had a strong support
system at their church and did not feel that they needed counseling. The victims’ mother
said she had not had any problems with the Defendant before the night of the victims’
revelations. The Defendant moved out of the victims’ grandmother’s home that same
night, and the couple subsequently divorced. When asked exactly what the victims told
her on Labor Day, the victims’ mother testified that A.C. R. told her about an incident
                                           -3-
that occurred in the Defendant’s bedroom when he took her hand and stuck it down his
pants onto his genitals.

        A.R. testified that she was thirteen years old and in the eighth grade. She
identified the Defendant as her former stepgrandfather and testified that when she was
eight years old and her father was in Iraq, she and her sisters spent Sunday afternoons and
some overnights with her grandmother and the Defendant in their home. One day during
that summer, she and her sisters were playing dress-up in her grandmother’s room when
she went outside alone to see if their new “kiddie pool” was ready for use. She recalled
that she was wearing her dress-up clothes at the time, which consisted of a “little tutu”
that came down to her knees and one of her grandmother’s tank tops, which she had
pinned up with a ponytail holder. She said she asked the Defendant about the pool, and
he came over to where she was standing on the porch, answered her question, hugged her,
pulled her shirt down, kissed her twice on one breast, and asked her if she liked it. She
answered, “No,” and the Defendant said, “Don’t tell anybody.” She then ran into the
house.

       A.R. testified that she went back to her grandmother’s room and began playing
dress-up again without telling anyone what had happened. Her sisters were putting their
swimsuits on in preparation for playing in the pool, but she no longer wanted to play in
the pool and stayed inside. A.R. explained that she did not tell her grandmother what had
just happened because she was afraid she would get into trouble because she had just
“stood there” without doing anything. She eventually told her little sister, A.C.R., with
whom she was very close, but told her that they should not say anything to anyone else
because they might get in trouble.

       A.R. recounted three other episodes that occurred after the pool incident in which
the Defendant engaged in inappropriate behavior. In the first, she had bent over to pick
up a piece of paper when she was retrieving some coloring paper and markers from the
Defendant’s bedroom, where he was working on his computer, when she saw the
Defendant reaching towards her “general girl area[.]” She pulled away, and the
Defendant turned back to his computer without saying anything. In the second, she
bumped into the Defendant as she was running inside the house to get some popsicles,
and the Defendant pointed to his penis and asked if she wanted to touch it. In the third,
she and A.C.R. were together in the Defendant’s bedroom when he asked if they wanted
to see his penis and then pulled down his pants and boxers, exposing himself to them.

      A.R. testified that she told A.C.R. about the coloring paper and popsicle incidents
because she told A.C.R. everything. A.C.R. told her about her similar experiences with
the Defendant, and she and A.C.R. made a pact to tell each other everything that

                                           -4-
happened involving the Defendant. They did not, however, tell any adults because they
were still worried that they would get in trouble if they did so.

       A.R. testified that when she and A.C.R. were eating with C.J. at the pizza
restaurant, A.C.R., who was sitting beside C.J., whispered something to him that caused
him to make a face. C.J.’s mother called C.J. over to ask what they were talking about,
and C.J. told her. A.R. said that she was scared because she still thought at that time that
she and A.C.R. would get into trouble. She stated that she and A.C.R. later talked to their
mother, their grandmother, and a woman at the Child Advocacy Center.

        A.R. identified the DVD of her interview at the Child Advocacy Center, which
was admitted as an exhibit and played for the jury. The account that A.R. provided in her
interview as an eight-year-old was essentially the same as her trial testimony, with the
exception that, as an eight-year-old, she said she had immediately reported the
Defendant’s behavior to her grandmother, but her grandmother did not believe her.
Elsewhere in the interview, however, she appeared to have a confused sense of time,
telling the interviewer that her grandmother and the Defendant broke up on the same
night that she told her grandmother about the abuse. She also said that when she told her
grandmother about the abuse, she said that the Defendant was “sexy.” She told the
interviewer that she did not know what that word meant.

        On cross-examination, A.R. reiterated that she did not tell her mother or
grandmother about the incidents because of her “child mindset” at that time that she
would get in trouble if she told. In response to a question from a juror, A.R. testified that
she recalled having told her grandmother that the Defendant was “sexy” when she was
attempting to tell her about the abuse. She said she used the word because she thought
that it meant something bad, but her grandmother did not understand what she was trying
to tell her.

        A.C.R., who said she was twelve years old and in the sixth grade, testified that she
had an older sister, a younger sister, and a brother, who was born in February 2010. She
recalled that when her brother was a baby and she was spending time at the home of her
grandmother and the Defendant, she was in the Defendant’s room when he stood up from
his desk chair, unbuckled his pants, and put her hand down the front of his pants so that
her palm touched his bare flesh. She said she tried to “scoot” her hand to the side and
thought that she touched his inner thigh instead of his genitals, but she was not sure. She
testified that she pulled her hand out and ran to the bathroom to wash her hands because
it was “disgusting” to think of her hand so close to his genitals. She told A.R. in the
bathroom what had happened, but she did not tell anyone else because she was afraid she
would get into trouble.

                                            -5-
        A.C.R. testified that the Defendant did not say anything to her during the incident
but told her “Shh” right before she pulled her arm out of his pants. She said she never
told the Defendant that she had seen or touched a penis before. She stated that A.R. did
not tell her of the Defendant’s having done anything to her and that she could not recall
their having talked about it further. She did recall, however, that either she or A.R. told
their cousin about it at the pizza restaurant and that her cousin had a surprised look on his
face, which caused her aunt and her mother to call him over to them.

       A.C.R. identified the DVD of her forensic interview at the Child Advocacy
Center, which was played before the jury and admitted as an exhibit at trial. In the
forensic interview, A.C.R. said that the Defendant unbuttoned his pants, took her hand
and “made [her] touch it.” She, apparently, then demonstrated on an anatomically correct
doll how the Defendant took her hand and forced her to touch what she called his “front
bottom” area inside his clothes.2 She said she touched his skin, but she denied that she
touched his actual “front bottom,” stating that she tried to “scoot” her hand over so she
did not have to touch his penis. She said she reported the incident to A.R. by telling her
that the Defendant “just made [her] touch him on his bottom.” A.C.R. told the
interviewer that nothing similar had ever happened with the Defendant.

        A.C.R. testified she was certain she touched the Defendant’s skin but did not know
if she touched his genitals. On cross-examination, she could not explain why she had not
told an adult other than to reiterate that, as a six-year-old, she thought she had done
something wrong and would get into trouble.

       Patricia Lewis, the Forensic Interview Program Manager at the Child Advocacy
Center, testified that she conducted the forensic interview of A.C.R. while a second
forensic interviewer conducted the interview of A.R. Ms. Lewis explained the interview
procedures and processes employed in forensic child interviews, including their use of
open-ended questions and anatomical dolls to help a child clarify what he or she is trying
to convey. She said their goal at the Child Advocacy Center was not to get a child to say
something had happened but instead to get the child to tell them the truth.

       The Defendant elected not to testify and rested his case without presenting any
proof. Following deliberations, the jury acquitted him of the aggravated sexual battery of
A.R. but convicted him of the aggravated sexual battery of A.C.R., for which the trial


       2
            The DVD itself, although admitted as an exhibit, was retained by the Criminal Court of
Shelby County unless requested by this court. We find it unnecessary to review the actual DVD
for the purposes of this appeal, as the interview was transcribed by the court reporter as part of
the trial transcript in the case.
                                              -6-
court subsequently sentenced him as Range I offender to twelve years at 100% in the
Department of Correction. This appeal followed.

                                        ANALYSIS

       On appeal, the Defendant contends that the only evidence in support of his
conviction was the testimony of A.C.R., which was “inherently unreliable” “[d]ue to the
significant amount of time that had passed between the alleged incident and the trial.”
The State notes that credibility determinations are within the province of the jury and
argues that the evidence was sufficient to sustain the Defendant’s conviction. We agree
with the State.

       When the sufficiency of the conviction evidence is challenged on appeal, the
relevant question of the reviewing 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 beyond a reasonable doubt.” Jackson v. Virginia, 443
U.S. 307, 319 (1979); see also Tenn. R. App. P. 13(e) (“Findings of guilt in criminal
actions whether by the trial court or jury shall be set aside if the evidence is insufficient
to support the findings by the trier of fact of guilt beyond a reasonable doubt.”); State v.
Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992); State v. Anderson, 835 S.W.2d 600, 604
(Tenn. Crim. App. 1992). Questions involving the credibility of witnesses, the weight
and value to be given the evidence, and all factual issues are resolved by the trier of fact.
See State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987).

       “A guilty verdict by the jury, approved by the trial judge, accredits the testimony
of the witnesses for the State and resolves all conflicts in favor of the theory of the State.”
State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Our supreme court stated the
rationale for this rule:

       This well-settled rule rests on a sound foundation. The trial judge and the
       jury see the witnesses face to face, hear their testimony and observe their
       demeanor on the stand. Thus the trial judge and jury are the primary
       instrumentality of justice to determine the weight and credibility to be
       given to the testimony of witnesses. In the trial forum alone is there human
       atmosphere and the totality of the evidence cannot be reproduced with a
       written record in this Court.

Bolin v. State, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 370 S.W.2d 523
(1963)).



                                             -7-
        “A jury conviction removes the presumption of innocence with which a defendant
is initially cloaked and replaces it with one of guilt, so that on appeal a convicted
defendant has the burden of demonstrating that the evidence is insufficient.” State v.
Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

        Aggravated sexual battery “is unlawful sexual contact with a victim by the
defendant or the defendant by a victim” when “[t]he victim is less than thirteen (13) years
of age.” Tenn. Code Ann. § 39-13-504(a)(4) (2014). “Sexual contact” is defined as
including “the intentional touching of the victim’s, the defendant’s, or any other person’s
intimate parts, or the intentional touching of the clothing covering the immediate area of
the victim’s, the defendant’s, or any other person’s intimate parts, if that intentional
touching can be reasonably construed as being for the purpose of sexual arousal or
gratification.” Id. § 39-13-501(6). “‘Intimate parts’ includes the primary genital area,
groin, inner thigh, buttock or breast of a human being.” Id. § 39-13-501(2).

       A.C.R. testified at trial that when she was approximately six years old and alone
with the Defendant in his room, he stood up from his desk chair, unbuckled his pants,
took her hand, and shoved her arm down the front of his pants inside his clothing so that
her hand touched his bare skin on what she thought was his inner thigh but could have
been his penis. She further testified that she was so disgusted by the thought of her hand
being so close to his genitals that she immediately ran to the bathroom to wash her hands.

        A.C.R.’s trial testimony was corroborated by the DVD of her forensic interview at
the Child Advocacy Center, made close in time to when the incident transpired. It was
also corroborated by her mother’s testimony that A.C.R. told her on Labor Day 2010
about the incident in the Defendant’s room in which the Defendant forced A.C.R.’s hand
inside his pants and onto his genitals. Furthermore, the Defendant’s own statement to
police, although he tried to put a different spin on the circumstances, provided at least a
partial corroboration of A.C.R.’s account of the incident. In sum, there was more than
sufficient evidence from which a rational jury could have found the Defendant guilty of
the aggravated sexual battery of A.C.R. beyond a reasonable doubt. Accordingly, we
affirm the Defendant’s conviction.

                                    CONCLUSION

        Based on the foregoing authorities and reasoning, we affirm the judgment of the
trial court.

                                          ______________________________________
                                          ALAN E. GLENN, JUDGE

                                           -8-
