         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT NASHVILLE             FILED
                               MAY SESSION, 1999             July 9, 1999

                                                       Cecil W. Crowson
STATE OF TENNESSEE,              )                   Appellate Court Clerk
                                      C.C.A. NO. 01C01-9807-CR-00282
                                 )
      Appellee,                  )
                                 )
                                 )    DAVIDSON COUNTY
VS.                              )
                                 )    HON. THOMAS H. SHRIVER
ANAND FRANKLIN,                  )    JUDGE
                                 )
      Appe llant.                )    (Direct Ap peal - Agg ravated Sexu al
                                 )    Battery)




FOR THE APPELLANT:                    FOR THE APPELLEE:

TERRY J. CANADY                       MICHAEL E. MOORE
211 Printer’s Alley Building          Solicitor General
Suite 400
Nashville, TN 37201                   LUCIAN D. GEISE
                                      Assistant Attorney General
                                      425 Fifth Avenu e North
                                      Nashville, TN 37243

                                      VICTOR S. JOHNSON
                                      District Attorney General

                                      WILLIAM REED
                                      Assistant District Attorney
                                      222 2n d Aven ue, No rth
                                      Nashville, TN 37201



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                                OPINION


         The appellan t, Anand Franklin, was convicted by a D avidson Co unty jury

of one (1) coun t of aggravated s exual battery, a Clas s B felony. The trial court

sentenced him as a Range I offender to eight (8) years incarceration.1 On

appe al, the appellant claims that the evidence presented at trial was insufficient

to establish guilt beyon d a reas onable doubt. After a thorough review of the

record b efore this C ourt, we a ffirm the trial co urt’s judgm ent.



                                                          I




         In early 1990, the appellant worked for the victim’s father a s a coo k in his

restaura nt. Later that year, the appellant began babysitting M.S., 2 the victim, and

P.S., her sister. M.S. was five (5) years of age and her sister, P.S., was seven

(7) years of age. Subsequently, both girls informed their aunt that the appellant

had be en doin g “bad s tuff” to both o f them.

         At trial, P.S. te stified th at the a ppella nt bab ysat he r and h er siste r while

their mother was working during the day and night. Because their furnace was

broken, the girls had to sleep by the fireplace at night to stay warm. One night

while she was sleeping, she awoke when the appellant “stuck h is finger in [her]

peepe e.” She noticed that her underwear had been pulled down. P.S. was

twelve (12 ) years old at the time of trial.

          1
            Orig inally, th e trial c ourt o rder ed th at the appe llant s erve his eig ht (8) year s ente nce in
community corrections. The state appealed, and this Court reversed, holding that because the appellant
was conv icted of ag grav ated sex ual ba ttery un der T enn . Cod e An n. § 3 9-13 -504 , he is statu torily ine ligible
for com mun ity corrections pursua nt to Ten n. Code Ann. § 40 -36-106 (a) and (c ). See State v. Anand
Fran klin , C.C.A. No. 01C01-9603-CR-00101, 1997 Tenn. Crim. App. LEXIS 764, Davidson County (Tenn.
Crim. App. filed August 15, 1997, at Nas hville).

         2
             It is the policy of this Court not to reveal the names of minor victims of sexual abuse.

                                                        -2-
        M.S., ten (10) years of age at the time of trial, testified that, on one

occasion, the appellant placed her on his lap and “put his finger in [her] vagina.”

She further testified tha t she a woke one n ight an d felt the appe llant dig itally

penetrating her vagin a.           She recalled that “when [sh e] woke up like [her]

underwear would be -- uh -- like half down an d half up.” Both girls testified that

after the se xual assa ult, it was pain ful to urinate .

        Each child te stified th at she did no t inform her m other a bout th e ass ault

because she was frightened and believed that she was at fault for the sexual

conduct. However, in late 1 991, the girls told their a unt wha t had ha ppene d to

them. After learning abo ut the allegations from her sister, the children’s m other,

Darshan Kaur, confronted the appellant, and the appellant denied having sexual

contact with P.S. and M .S. Subseq uently, Mrs. Kau r took her children for a

medic al exam ination.

        Sue Ross , a ped iatric nurse p ractitioner w ith Our Kids Center, conducted

a med ical exa mina tion of M .S. in conne ction with the allegations of sexual abuse.

She testified that sh e obs erved that the child’s h ymen was “s carred ” at the s ix

o’clock position. Although she acknowledged that this scarring was not

nece ssarily caused by penetration, she stated that her physical examination

findings were c onsis tent with digital penetration. In addition, she testified that

pain du ring urinatio n could b e cons istent with d igital pene tration.

        Ross also testified with regard to the medical examination of P.S.3 There

was evidence of “scarring” around the six o’clock position of the hymen.

Howeve r, Ross testified that the exam was “non-specific” in that it was not

“indicative of some sort of penetrating injury.”


        3
          Ross did not perform the medical examination on P.S. However, Julie Rosof, the nurse
practitioner who examined P.S. was ill during the time of trial. Therefore, the parties agreed to allow Ms.
Ross to testify regar ding Ro sof’s findin gs.

                                                  -3-
         The appellant testified on his own behalf at trial. He was a resident of

India and came to the United States in connection with his work as a missionary

for the Seventh Day Adventist Church. He developed problems with his eyesight

and eventually moved to Nashville so that he could receive an op eration on his

eye.     In Feb ruary 1 990, h e beg an wo rking a t India P alace, a res tauran t in

Nashville. He developed a friendship with the proprietors of the restaurant, as

well as with the ir two childre n.                  He often took care of the children at the

restaura nt and a t their hom e.

         The second w eek of Janu ary 1991, the ap pellan t disco ntinue d his

employment at India Palace. He ma intained contac t with the family, howeve r,

because he was owed approximately $5,000 in unpaid salary, and Mrs. Kaur had

borrowed over $2,000 from him. Whenever he requested the money from Mrs.

Kaur, she became angry and threatened to deport him to India.4 The last time

the appellant could recall requesting the money was in November 1991. One

month later, Mrs. Kaur’s children telephoned the appellant and asked him to visit

them at their hom e. W hen h e arrive d, Mrs . Kaur accu sed h im of s exually abusing

                   5
her childre n.

         The appellan t testified that h e was n ever alon e with P.S. and M.S., and a

family member was always present while he watched the children. Esse ntially,

the appellant testified that M rs. Kaur, in order to e scape her $7,0 00 deb t,

manufactured the allegations and “coached” her daughters into accusing the

appellan t of sexua l miscon duct.



         4
           Initially, the appellant’s stay in the United States was limited to approximately four (4) to six (6)
mo nths . Afte r he d evelo ped eyesig ht pro blem s wh ich re quire d sur gery, th e app ellant chos e to re ma in in
this coun try illegally.

         5
           The appellant testified that Mrs. Kaur and her sister then slapped him and sexually assaulted
him with a beer bottle. The appellant admitted that he did not inform law enforcement authorities about
this assa ult. He state d that he w as afraid that he wo uld be de ported if he reported the inciden t.

                                                        -4-
         John Appling, a ped iatrician, also testified for the defens e at trial. Dr.

Appling stated that, upon reviewing the medical histories and photographs taken

of M.S. and P.S. during their medical examinations, he found no evidence of

penetration in either child.                      Furthermore, he testified that the medical

examinations were completely inconsistent with the children’s versions of the

sexual co ntact.

         In rebuttal, the state called Suzanne Starling, also a ped iatrician, to testify.

Dr. Starling stated that her review of the histories and photographs revealed

“non-specific” findings. However, she further testified that each girl’s hym en did

not app ear norm al.

         The appellant was ch arged w ith aggravated rape of M.S. in Count One of

the indictment, aggravated rape of P.S. in Count Two of the indictment and

aggravated rape of M.S. in Coun t Four of th e indictm ent. 6 The state dismissed

Count Three of the indictment, which charged aggravated sexual battery. The

jury acquitted the appellant on Co unts O ne and Two. However, the jury found the

appellant guilty of the les ser offen se of agg ravated s exual ba ttery of M.S. in

Count Four of the indictment. From his conviction for agg ravated sexua l battery,

the ap pellan t now b rings th is app eal.



                                                            II




         In his sole issue o n app eal, the appe llant co ntend s that th e evide nce is

insufficient to establish his guilt beyond a reasonable doubt. He argues that


         6
           At the conclusion of the state’s case-in-chief, the state made an election of offenses. Count One
refe rred to the insta nce whe re M .S. tes tified th at sh e wa s digit ally pen etrat ed w hile sit ting in the a ppe llant’s
lap. C oun t Two refe rred to the insta nce whe re P.S . testif ied th at sh e aw oke whe n the appe llant d igitally
penetrated her. Count Four referred to the instance where M.S. testified that she awoke when the
appellant digitally penetrated her.

                                                           -5-
M.S.’s testimony is inconsistent and contradictory, and there is no affirmative

medical proof establishing that the child was sexua lly assaulted. Therefore, he

claims that no rational trier of fact could have found him guilty beyond a

reason able do ubt.

                                           A.

       When an accused challenges the su fficiency of the evidence , this Court

must review the record to determine if the evidence adduced during the trial was

sufficient “to support the findings by the trier of fact o f guilt beyon d a rea sona ble

doubt.”   Tenn. R. App. P. 13(e).       This rule is applicable to finding s of gu ilt

predicated upon d irect eviden ce, circumstantial evidence or a combination of

direct and circu mstan tial evidenc e. State v. Brewer, 932 S.W .2d 1, 19 (Tenn.

Crim. App . 1996).

       In determining the sufficiency of the evidence, this C ourt does not reweigh

or reevalua te the evide nce. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.

1978). Nor may this Court substitute its inferences for those drawn by the trier

of fact from circums tantial evide nce. Liakas v. S tate, 199 Tenn. 298, 305, 286

S.W.2d 856, 859 (19 56). To the c ontrary, this C ourt is requ ired to afford the s tate

the strongest legitimate view of the evidence contained in the record as well as

all reasonable and legitimate inferences which may be drawn from the evidence.

State v. Tuttle , 914 S.W.2d 926, 932 (T enn. C rim. App . 1995). “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 S tate.” State

v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973).               Questions concerning the

credibility of the witnesses, the weight and value to be given the evidence as we ll

as all factual issues raised by the evidence are resolved by the jury as the trier

of fact. State v. Tuttle , 914 S.W.2d at 932.

                                           -6-
      Because a verdict of guilt removes the presumption of innocence and

replaces it with a presumption of guilt, the accused has th e burd en in th is Court

of illustrating why the evidence is insufficient to support the verdict returned by

the trier of fact. State v. Tug gle, 639 S.W .2d 913 , 914 (T enn. 19 82); State v.

Grace, 493 S.W.2d at 476.

                                          B.

      Aggravated sexual battery is defined as “unlawful sexual contact with a

victim by the defendant or the defendant by a victim” where “[t]he victim is less

than thirteen (13) years o f age.” Tenn . Code Ann. §§ 39-13-502(a)(4), 39-13-

504(a) (Supp . 1990). Sexual contact is defined as “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 o ther pe rson’s intima te parts , if that intentional touching can

be reasonably construed as being for the purpose of sexua l arousal or

gratification.” Tenn. C ode Ann . § 39-13-501 (6) (Supp. 19 90).

                                          C.

      With regard to Count Four, the victim testified that she was sleeping by the

fireplace in her home when she awoke because the appellant digitally penetrated

her. She testified that her underwear had b een p artially pu lled do wn, an d she felt

the appellant’s finge r touch her.

      The appellant claims that M.S.’s testimony was inconsistent and

contradictory and, therefore, should not be conside red to support his conviction.

Specifically, he po ints to in stanc es wh ere the victim told her mother and Sue

Ross that the appellant d id not sexually assa ult her. In support of his argum ent,

the appellant cites Taylor v. Nashville Banner Publishing Co., 573 S.W.2d 476,

482 (Tenn . Ct. App. 1978), which reiterated the well-settled law that contradictory

                                          -7-
statem ents by a witn ess in conne ction with the same fact have the result of

“canceling out” ea ch oth er.     Th e rule o f canc ellation applies only when the

inconsistency is unexplained and when neither version of her testimony is

corroborated by other e vidence . Id. at 483; State v. Cald well, 977 S.W.2d 110,

118 (Tenn . Crim. App. 1997); State v. Matthews, 888 S.W.2d 446, 450 (Tenn.

Crim. App . 1993).

       Howeve r, this Court has recently held that the rule regarding inconsistent

statem ents only apply when in thos e insta nces where the witn ess’ sworn

statem ents are contrad ictory. State v. Roge r Dale B ennett, C.C.A. No. 01C01-

9607-CC-00319, 1998 Tenn. Crim. App. LE XIS 13 28 at *5, L awrenc e Cou nty

(Tenn. Crim. App. filed December 31, 1998, at Nashville). The Court observed,

       Tennessee law has traditionally permitted a witness’s prior
       inconsistent statement to be used to impeach the witness. Neil P.
       Cohen, et al., Tennessee Law of Evidence, § 613.1 at 312 (2nd ed.
       1992). The evidence is not substantive evidence but is ad miss ible
       only on the issue o f the witn ess’s c redibility. Id. In this case, the
       defense used [the witness’] prior statements to discredit her trial
       testimony. A prior inconsistent statement, by definition, will always
       contradict trial testimony but it does not rende r that testimony a
       nullity. A witness’s prior inconsistent statements raise questions of
       credibility. The jury determines the credibility of the witnesses and
       assesses the weigh t of their testimon y. State v. Cabbage, 571
       S.W .2d 832, 835 (T enn. 1978 ). In this instance, the jury chose to
       accept [the witness’] explanation for the discrepancies and
       accredited her trial testimony. The rule concerning a witness’s
       contradictory statements does not apply in this case.

Id. at *5.

       W e find this reaso ning to be eq ually pe rsuas ive in this case. The appellant

refers to prior statements by the victim that she was not sexually assaulted by the

appellan t. However, these statem ents a re uns worn s tatem ents w hich w ould

norm ally be excluded as hearsay.             The appellant presented these prior

statem ents at trial to discre dit the com plaining w itness. The victim, merely ten

(10) years of age at the tim e of trial, e xplaine d that s he initia lly denied the sexual

                                            -8-
assau lts because she was frightened and believed that she was at fault. After

considering all of the evidence prese nted a t trial, the ju ry accr edited the victim ’s

trial testim ony, an d this Court is not free to re evalua te the w itness ’ credib ility in

this regard . The witn ess’ state ments did not “ca ncel eac h other o ut.”

       The victim testified that the appellant digitally penetrated her while she was

sleeping, and she discovered that her underwear had been pulled down. The

jury could have rationally found that the state proved the essential elements of

the offense of ag gravated sexu al battery.

       This issu e is withou t merit.



                                            III




       The evidence is sufficient for a rational trier of fact to find the appellant

guilty of aggravated sexual battery beyond a reasonab le doubt. Acco rdingly, the

judgment of the trial court is affirmed.




                                    ____________________________________
                                    JERRY L. SMITH, JUDGE




                                            -9-
CONCUR:



___________________________________
DAVID G. HAYES, JUDGE


___________________________________
NORMA MCGEE OGLE, JUDGE




                             -10-
