        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                          AT JACKSON

                     DECEMB ER SESSION, 1997               FILED
                                                      March 19, 1998
STATE OF TENNESSEE,       )    C.C.A. NO. 02C01-9610-CR-00379
                          )                          Cecil Crowson, Jr.
                                                           Appellate C ourt Clerk
      Appellee,           )
                          )
                          )    SHELBY COUNTY
VS.                       )
                          )    HON. CAROLYN WADE BLACKETT
LARRY F. MORRIS,          )    JUDGE
                          )
      Appe llant.         )    (Direct Appeal - Aggravated Sexual
                          )    Battery



FOR THE APPELLANT:             FOR THE APPELLEE:

BILL ANDERSON, JR.             JOHN KNOX WALKUP
138 N . Third S t.             Attorney General and Reporter
Memphis, TN 38103
                               KENNETH W. RUCKER
                               Assistant Attorney General
                               450 James Robertson Parkway
                               Nashville, TN 37243-4351

                               WILLIAM L. GIBBONS
                               District Attorney General

                               PAUL F. GOODMAN
                               RHEA CLIFT
                               Assistant District Attorn eys
                               201 Poplar Avenue - 3rd Floor
                               Memphis, TN 38103




OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                             OPINION

           On February 8, 1996, a Shelby County jury found Appellant, Larry F.

Morris, guilty of a ggrav ated s exual b attery. T he trial court conducted a sentencing

hearing and sentenced Appellant to eight years in the Tennessee Department of

Corrections as a standard Range I offender. Appellant appeals from the

judgmen t, raising several issues, sp ecifically:

       1) whethe r the indictm ent in the c ause w as fatally de fective so a s to
deprive the trial court of jurisdiction;
       2) whether the trial court erred in finding the victim c ompete nt to testify;
       3) wheth er the tr ial court erred in allowing the jury to hear a tape of an
interview of Appellant by the Tennessee Department of Human Services;
       4) whethe r the trial cou rt erred in re fusing to a llow the de fense to review
the en tire file of the Tennessee Department of Human Services concerning the
investigation of this case;
       5) whether the trial court erred in allow ing tes timon y conc erning the victim ’s
“fresh complaint”; and
       6) wheth er the evid ence w as sufficien t to sustain the jury’s verd ict.


           After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.



                                                 FACTS




           On Septe mbe r 29, 19 94, aro und tw o o’clo ck in the afternoon, Helen

Tram mell picked up her granddaughter, A.C., and her gra ndso n, from a Moth er’s

Day Out program which the children attended every Tuesday and Thursday. 1

A.C. wanted to go play with Jonathan Morris, Appellant’s son, instead of

accompanying her gra ndm other o n an e rrand . Ms. T ramm ell took A.C . to the

Morris apartment, and left A.C. in Appellant’s care. Appellant told Ms . Tram mell




1
    It is the policy of this Court to refer to child victims of sex abuse by initials only.

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that his wife had gone out to pay a cable bill, but would return ho me with

Jonathan in about ten minutes.



      According to A.C., while alone with Appellant, Ap pellant “put [his finger]

down here and hurt me.” A.C. testified that Appellant touched her inside her

panties with his index finger. Ms. Trammell returned from her errands, and found

Appe llant, his wife and Jonathan all at home. Normally A.C. would continue

playing with Jona than, bu t on this occasion she attached herself to her

grandm other. Ms. Trammell took A.C. to her ho use, a nd A.C .’s mother picked the

children up around six o’clock that evening.



      The next morning A.C. returned to Ms. Trammell’s house. A.C. told Ms.

Tram mell of the p ain between her legs. During that day, Ms. Trammell observed

that A.C. wa s beha ving stran gely, crying and staying very close to her

grandm other, Ms. Tra mm ell. Ms. Trammell was forced to pull the shades down

in the apartment because A.C. wa s terrified of A ppellant, whose apartment was

nearby.



      Ms. Trammell called A.C .’s mother at work, who in turn called the Rape

Crisis Center. A.C.’s mother picked up A.C . aroun d five thirt y in the afternoon and

she, A.C., A .C.’s father and A.C.’s brother went to Chuck E. Cheese’s. After

eating, A.C.’s parents took her to LeBonheur Hospital, where they were

unsu cces sful in obtaining medical attention. On Monday, A.C. was taken to the

Childr en’s Advocacy C enter where she was examined by Dr. Judith Hersh, an

obstetrician-gynecologist with a specialty in pedia tric and adolesc ent gynecolo gy.




                                         -3-
Dr. Hersh noted a healing abrasion on A.C.’s left labia majora, which she felt had

occurred within a week to ten days of the examination.



       Durin g the course of the Department of Human Services investigation of

the possible abuse of A.C., Jean Watson, of that agency, talked with A.C., Ms.

Tram mell and Appellant. Ms. Watson taped her interview with Appellant. In the

interview, Appellent explicitly denied that A.C. had been at his house on the day

in question . Ms. W atson tes tified that she said noth ing during the interview to

indicate which day was under investigation, but that Appellant of his own acco rd

denied that A.C . had be en with him on “Th ursday.”



                       I. SUFFICIENCY OF THE EVIDENCE




       In his final allegation of error, Appellant challenges the sufficiency of the

evidence presented at trial. When an appellant challenges the sufficiency of the

evidence, this Cour t is oblige d to rev iew tha t challe nge a ccord ing to c ertain w ell-

settled principles . A verdict of guilty by the jury, approved by the trial judge,

accred its the testimony of the S tate’s witnesses and resolves all conflicts in the

testimony in favor of the State. State v. Cazes, 875 S.W.2d 253, 259 (Tenn.

1994); State v. Harris, 839 S.W.2d 54, 75 (Tenn.. 1992). Although an accused

is originally cloaked with a presumption of innoc ence , a jury ve rdict rem oves th is

presumption and replaces it with one o f guilt. State v. Tug gle, 639 S.W.2d 913,

914 (Tenn.. 198 2). Hence, on appeal, the burden of proof res ts with Ap pellant to

demo nstrate the insufficie ncy of the convicting evidenc e. Id. On appeal, “the

[S]tate is entitled to the strong est legitima te view o f the evid ence as we ll as all

reaso nable and legitim ate inferen ces that m ay be dra wn there from.” Id. (Citing

State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.. 1978)). Where the sufficiency of


                                            -4-
the eviden ce is co nteste d on a ppea l, the relevant question for the revie wing court

is whether any rational trier of fact could have found the accused guilty of every

element of the offen se beyo nd a rea sonab le doub t. Harris , 839 S.W.2d 54, 75;

Jackson v. Virgin ia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560

(1979). In conducting our evaluation of the convicting evidence, this Court is

precluded from reweigh ing or reco nsidering the evide nce. State v. Morgan, 929

S.W.2d 380, 383 (Tenn.. Crim. App. 1996); State v. Mathews, 805 S.W.2d 776,

779 (Tenn.. Crim. A pp. 1990). Moreover, this Court may not substitute its own

inferences “for those drawn by the trier of fact from circumstantial evidence.”

Mathews, 805 S.W .2d at 779 . Finally, the T ennes see Ru les of Ap pellate

Procedure, Rule 13(e) provides, “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 beyond a reasona ble doubt.” See also State v.

Mathews, 805 S.W .2d at 780 .



       In the matter sub judice, Appellant was charged with aggravated sexual

battery which is defined in pertinent part as unlaw ful sexu al con tact with a victim

by the de fenda nt whe n the vic tim is less than thirteen yea rs of age. Tenn. Code

Ann. 39-13-504(a) & 39-13-502(a)(4). “Sexual contact” includes the intentional

touching of the victim ’s intimate body pa rts, if that intentional touching can

reaso nably be construed as being for the purpose of sexual arousal or

gratification. Tenn . Code Ann. 39-13 -501( 6). A.C . testified that Ap pellan t used his

finger to touch her under her panties, and that his touch hurt her. Dr. Hersh

testified that the scratch on A.C.’s labia majora was consistent with the touch of

a huma n finger. A .C. was le ss than th irteen yea rs of age at the time of the

offense. Jurors may use their common knowledge and experience in making

reaso nable inference s from th is evidenc e. State v. Meeks, 876 S.W.2d 121, 131


                                           -5-
(Tenn. Crim. App . 1993)(citing 23A C.J.S. Criminal Law § 1380). The sexual

contact could reasonably have been construed by the jury as being for sexual

arousa l or gratification This issu e is withou t merit.




                     II. SUFFICIENCY OF THE INDICTMENT




       Appellant raises an issue of the sufficie ncy of the indictme nt, alleging that

under this Court’s decision in State v . Hill, 1996 WL 3469 41, the indictm ent in

this case fails because it did no t allege a men s rea for the crime . However, since

the filing of the briefs in this matter, the Supreme Court settled this issue in State

v. Hill, 01-S-01-9701-CC-000 05, W ayne Cou nty, (Tenn., No vember 3 , 1997),

holding that the required mental state “may be inferred from the nature of the

criminal cond uct alleged.” Id. at 9. This is sue is with out me rit.



                   III. COMPETENCY OF VICTIM TO TESTIFY




       Appellant next alleges that the trial cou rt erred in finding A.C. competent

to testify. Appe llant conte nds tha t becau se A.C . stated during the competency

hearing that she had never told an untruth that she does not understand the

difference between truth and lying. The Tennessee Rules of Evidence Rule 601

clearly states that every person is presumed to be a competent witnesses unless

falling into one of the listed ca tegorie s. This rules m eans that no perso n sha ll be

autom atically barred from testifying simply because of age or mental status. “The

purpose of determining the competency of the witness in child sexual abuse

cases is to allow a victim to testify if it c an be determ ined th at the c hild

understands the necessity of telling the truth while on the witness stand .” State

                                           -6-
v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993). The question of competency is a

matter for the trial cou rt's discretion . State v. Caughron, 855 S.W.2d 526, 538

(Tenn. 1993) (citing Arterbu rn v. State , 391 S.W.2d at 657; State v. Braggs, 604

S.W.2d 883, 88 6 (Ten n.Crim .App.19 80); State v. Nelson, 603 S.W.2d 158, 168

(Tenn.C rim.App.19 80)). The record shows that the witness demonstrated that

she knew th e differenc e betwe en the tru th and a lie, identifying examples of each.

She further testified that she realized that it was very important for her to tell the

truth. The court did n ot abus e its discretio n here. T his issue is without m erit.



                                IV. TAPED INTERVIEW




       Appellant also argues that the trial court erred in permitting the playing for

the jury of a taped interview of Appellant conducted by Jean Watson, an

investigator for the department of Human Services. In this interview, Ms. Watson

told Appella nt that he w as und er investiga tion for havin g mole sted A.C , but did

not tell Appellant when the molestation allegedly occurred. Appellant admitted

that A.C. had visited his ho me, b ut spe cifically d enied that A.C . had b een in his

care the previous Thursday, the day on which A.C. claimed that the event took

place. Appellant claims that the statement is hearsay in that it does not reach the

level of an admission of a party opponent and further contends that the statement

is irrelevant to the issue s at trial.




       Tenn. R. Evid. 801(c) defines “hearsay” as:




                                          -7-
              . . . a statem ent, other than one made by the declarant
              while testifying at the tria l or hea ring, offe red in
              evidence to prove the truth of the matter asserted.


       Here the State offered the tape as proof of Appellant’s guilty knowledge,

rather than the truth of the matter asserted, and therefore claims that the tape

was not hearsay eviden ce. Cle arly the State was no t attemp ting to prove the truth

of the statement, which is exculpatory in substance.         The statement is not

hearsay, but was admitted to show the Appellant’s guilt through his having

volunteered the date of the alleged offense without ever having been told of the

date. Th is issue is w ithout me rit.



             V. DEPARTMENT OF HUMAN SERVICES CASE FILE




       Appellant also contends that the trial court erred in refusing to grant

defense counsel access to the entirety of the Department of Human Services

case file regarding this case. Because Appe llant objected to the jury reading a

transcript of the interview between Ms. Watson and Appellant, the keeper of the

Department of Human Services’ records, a Ms. Smiley, was called to testify that

she maintained the DHS records during the course of her employment and that

the DHS file contained the interview tape. Ms. Smiley had no prior knowledge of

this case, and merely testified as to the location of the tape in the DHS archives.

Appellant argues that under the Tennessee Rules of Evidence Rule 612, he was

entitled to re view the D HS file.




Tenn. R. Evid. 612 provides:


                                         -8-
              If a witness uses a writing while testifying to refresh
              mem ory for the pur pose o f testifying, an a dverse p arty
              is entitled to ins pect it, to cross-examine the witness
              thereon, and to introduce in evidence those portions
              which relate to th e testim ony of th e witne ss. If it is
              claimed that the writing contains matters not related to
              the subje ct matte r of the te stimo ny, the c ourt sh all
              examine the writing in camera, excise any portions not
              so related, a nd order delivery of the remainder to the
              party entitled thereto. Any portion withheld over
              objections shall be pres erved an d mad e available to
              the appellate court in the event of appeal. If a writing
              is not produce d or delivered pursuant to order under
              this rule, the court shall make any order justice
              requires; in criminal cases when th e prose cution ele cts
              not to comply, the order shall be one striking the
              testimony or, if the court in its discretion determines
              that the interests of justice so requir e, declaring a
              mistria l.


The record demonstrates that Ms. Smiley did not use the records to refresh her

mem ory; she merely testified that the interview tape was contained in the DHS

records . Thus, R ule 612 does n ot apply h ere. Th is issue is w ithout me rit.




                              VI. FRESH COMPLAINT




       Appellant argue s that th e trial court erred in allowing into evidence

testimony which should have been excluded as “fresh complaint”. In State v.

Livingston, the Supreme Court held that “in cases where the victim is a child,

neither the fact of the complaint nor the details of the complaint to a third party

is admiss ible unde r the fresh c ompla int doctrine .” State v. Livingston, 907 S.W.2d

392 (Tenn. 199 5). Appe llant’s allega tion is th at with O fficer W illiam K ohl, A.C .’s

mother and Ms . Tram mell, the S tate brou ght into evid ence th e fact of A.C .’s

complaint against Appellant. The record, however, do es not supp ort Appe llant’s

position. The doctrine of fresh complaint was develo ped in order to adm it


                                           -9-
evidence which otherwise would be exc luded un der the h earsay ru les. In

Livingston the Su prem e Cou rt, while e xpres sing d isplea sure w ith both the ru le

and the underlying societal reason for the rule, explained that it viewed the

doctrine as still necessary in adu lt sexual assault cases because of the societal

view that an ad ult who is a ssaulted will report the crime. Id. at 394. “Fresh

comp laint” is esse ntially a h earsa y exce ption w hich a pplies only to sexua l assau lt

cases involving adults. Fresh complaint is not im plicate d unle ss the testim ony is

hearsay testim ony.



        The State questioned Officer Kohl solely about whether he took a

complaint from the victim’s fam ily. This testimony is not hearsay testimony, and

therefore need not be subjected to “fresh complaint” analysis.               Further, the

testimony of A.C .’s mother related only to what she did on the days following the

crime: she reported that the day after the crime, she called the Rape crisis Center

and later took her daughter to the hospital, hoping to see a doctor. She also

testified that she took A.C. to the Children’s Advocacy Center where A.C. was

seen by a doctor. Her testimony presented no hearsay evidence; it merely related

her action s. Finally the testimon y of Ms. T ramm ell to which Appellant objected

was mere ly her observation that A.C. “was real red”, an observation made by the

witness. T his is not “fres h com plaint” evide nce. Th is issue is w ithout me rit.




       For the aforementioned reasons, the judgment of the trial court is affirmed.




                                           -10-
                         ____________________________________
                         JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
JOE B. JONES, PRESIDING JUDGE


___________________________________
J. CURWOOD WITT, JR., JUDGE




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