             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                               AT JACKSON
                                     Assigned on Briefs June 3, 2003

                  STATE OF TENNESSEE v. FELIX BARTOLO JOSE

                             Appeal from the Circuit Court for Henry County
                                  No. 13306    Julian P. Guinn, Judge



                           No. W2002-02532-CCA-R3-CD - Filed July 9, 2003


The Appellant, Felix Bartolo Jose, was convicted of one count of aggravated sexual battery, a class
B felony, following a jury trial. The trial court sentenced Jose to an eight-year sentence in the
Department of Correction. On appeal, Jose raises the single issue of whether the evidence was
sufficient to support the verdict. After review of the record, we affirm the conviction.

                    Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed.

DAVID G. HAYES, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and JAMES
CURWOOD WITT, JR., JJ., joined.

Guy T. Wilkinson, District Public Defender; W. Jeffery Fagan, Assistant District Public Defender,
Camden, Tennessee, for the Appellant, Felix Bartolo Jose.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Kathy D.
Aslinger, Assistant Attorney General; G. Robert Radford, District Attorney General; and Steven L.
Garrett, Assistant District Attorney General, for the Appellee, State of Tennessee.


                                                       OPINION

                                                Factual Background

       On August 10, 2001, S.H.,1 then seven years old, rode the bus to the Appellant’s home after
school. The Appellant’s wife had agreed to babysit the victim until she was picked up by her
mother. On the third day of this arrangement, the victim was left alone with the Appellant and two
other small children, while the Appellant’s wife went to the bank. The victim testified that she had
been watching television and asked the Appellant if she could play a Nintendo game. According to


         1
           In order to protect the identity of minor victims of sexual abuse, it is the policy of this court to refer to the
victims b y their initials. State v. Schimpf, 782 S.W .2d 1 86, 1 88 n.1 (T enn. C rim. App. 1 989 ).
the victim, the Appellant then asked her if she could keep a secret. Upon an affirmative response
from the victim, the Appellant had her lean against the couch, pulled down her clothing, and began
“rubbing his privates against” her “bottom.” The victim stated that the Appellant again made her
promise to keep the secret. When the Appellant’s wife returned home, the victim did not inform her
of the sexual assault. During the drive home with her mother, the child related the events; however,
at trial, the victim did not recall exactly what she had told her mother. Based upon the victim’s
allegations, her mother informed the police, and an investigation was begun.

       Deputy Vandiver of the Henry County Sheriff’s Department, along with two other officers,
went to the Appellant’s home and requested that he accompany them to the police department for
questioning. The Appellant willingly agreed. Upon arrival, Vandiver asked the Appellant a series
of questions designed to determine if the Appellant, a Hispanic, was able to understand and speak
English. From the responses given by the Appellant, the officers determined that the Appellant was
capable of communicating in English. The Appellant was advised of his rights, and Vandiver had
the Appellant read the rights back to him to ensure that he understood them. At this point, the
Appellant provided the officers with a statement, which contained numerous admissions. The oral
statement was reduced to writing by Deputy Vandiver; however, the Appellant did not sign the
statement, claiming he could not read Vandiver’s handwriting. Nonetheless, the Appellant did
verbally agree that the facts contained in the statement were correct.

        The Appellant was subsequently indicted on March 4, 2002, for one count of aggravated
sexual battery. On July 24, 2002, he was convicted after a trial by jury. The trial court later
sentenced the Appellant to an eight-year sentence in the Department of Correction.2 The Appellant
filed a motion for new trial, which was denied, and this timely appeal followed.

                                                          Analysis

         The Appellant contends that the evidence presented was insufficient to convict him of
aggravated sexual battery. When evidentiary sufficiency is challenged, our standard of review is,
after considering all the evidence in the light most favorable to the state, whether any rational trier
of fact could have found all the essential elements of the offense beyond a reasonable doubt. Tenn.
R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); State v. Hall,
8 S.W.3d 593, 599 (Tenn. 1999). This rule applies to findings of guilt based upon direct evidence,
circumstantial evidence, or a combination of both. State v. Lewis, 36 S.W.3d 88, 93 (Tenn. Crim.
App. 2000) (citations omitted).

        In determining the sufficiency of the evidence, this court shall neither reweigh or reevaluate
the evidence, State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990), nor shall this court
substitute its inferences for those drawn by the trier of fact. State v. Buggs, 995 S.W.2d 102, 105
(Tenn. 1999). Questions concerning the credibility of the witnesses, the weight and value of the


         2
           Due to the A ppe llant’s illegal immigration status, an ord er was also entered for his transfer to INS custody after
service of this sentence.

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evidence, and all factual issues raised by the evidence are resolved by the trier of fact. Id. This court
must afford the State the strongest legitimate view of the evidence and all reasonable inferences
drawn from it. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). The defendant, once convicted,
is presumed guilty and bears the burden of proving that the evidence was insufficient. Id.

       As charged in the instant indictment, aggravated sexual battery is defined as “unlawful sexual
contact” between a defendant and a victim, who is less than thirteen years of age. Tenn. Code Ann.
§ 39-13-504(a)(4). “Sexual contact” is defined as:

        [T]he 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.

Tenn. Code Ann. § 39-13-501(6). The “intimate parts” include “the primary genital area, groin,
inner thigh, buttock or breast of a human being.” Tenn. Code Ann. § 39-13-501(2).

       The Appellant argues that the evidence is insufficient due to various inconsistencies in the
victim’s testimony at trial and that the victim was “mistaken about what happened.” Specifically,
he contends that the evidence is insufficient because: (1) the victim testified that these events
happened in October as opposed to the actual date in August; (2) the victim testified she did not see
the Appellant pull his pants down or back up; (3) the victim was unsure what the Appellant touched
her with; (4) the victim failed to tell the Appellant’s wife of the events and was unable to recall
exactly what she had told her mother; and (5) the statement was not written or signed by the
Appellant.

        This argument is clearly misplaced. At trial, the victim testified that, after the Appellant
instructed her to lean against the couch, “he pulled my shorts or pants down, and then pulled my
panties down and started rubbing his private against mine.” The victim then testified that she felt
something touching her “bottom.” The Appellant, in his statement to the police, admitted that
“[w]hile looking at her, I got a hard-on. I pulled my shorts down. I then started rubbing my penis
on her butt. I did this until I come. I come on my hand.” The jury obviously accredited the
testimony of the victim that the Appellant had sexual contact with her intimate parts and the
testimony of Deputy Vandiver that the Appellant understood his rights and his statement was freely
and knowingly provided. We will not revisit questions of witness credibility or reweigh the
evidence produced at trial. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). The proof
presented at trial was more than sufficient for a reasonable jury to have found the essential elements
for the offense of aggravated sexual battery beyond a reasonable doubt. Tenn. R. App. P. 13(e).
This issue is without merit.




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                                        CONCLUSION

       Based upon the foregoing, we conclude that the evidence is legally sufficient to support the
Appellant’s conviction for aggravated sexual battery. Accordingly, the judgment of the Henry
County Circuit Court is affirmed.




                                                     ___________________________________
                                                     DAVID G. HAYES, JUDGE




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