          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT JACKSON

                           JANUARY 1999 SESSION             FILED
                                                               April 29, 1999

                                                            Cecil Crowson, Jr.
STATE OF TENNESSEE,                  )                     Appellate Court Clerk
                                     )
      Appellee,                      ) C.C.A. NO. 02C01-9805-CC-00151
                                     )
                                     ) Henry County
V.                                   )
                                     ) Honorable Julian P. Guinn, Judge
                                     )
DONALD RAY SMITH,                    ) (Aggravated Sexual Battery)
                                     )
      Appellant.                     )




FOR THE DEFENDANT:                      FOR THE APPELLEE:

GUY T. WILKINSON                        JOHN KNOX WALKUP
District Public Defender                Attorney General & Reporter

W. JEFFREY FAGAN                        CLINTON J. MORGAN
Assistant District Public Defender      Counsel for the State
117 North Forrest Avenue                425 Fifth Avenue North
Camden, TN 38320                        2nd Floor, Cordell Hull Building
                                        Nashville, TN 37243-0493

                                        ROBERT “GUS” RADFORD
                                        District Attorney General

                                        STEVE GARRETT
                                        Assistant District Attorney General
                                        P. O. Box 94
                                        Paris, TN 38242




OPINION FILED: ___________________


REVERSED AND DISMISSED


JOHN EVERETT WILLIAMS,
Judge
                                  OPINION

        The defendant, Donald Ray Smith, appeals as of right his conviction by a

Henry County Circuit Court jury of aggravated sexual battery, a class B felony.

The trial court sentenced the defendant to eight years in the Tennessee

Department of Corrections as a range I standard offender. The defendant

argues that the evidence at trial was insufficient as a matter of law to sustain the

conviction and that the trial court erred by denying the defendant’s motion for

judgment of acquittal. We REVERSE the trial court’s judgment and DISMISS the

case.



                                  BACKGROUND

        After establishing general background for the alleged victim, the state’s

first witness, the state’s examination began as follows:

                  Q. I want to go back, if we could, to July, 1996. I’ve told
                     these ladies and gentlemen of the jury that you say
                      your father has done some things to you that he
                      shouldn’t have. I want you to tell the ladies and
                      gentlemen of the jury what he did to you.
                  A. He didn’t do anything.
                  Q. He didn’t do anything. That is your response to this
                     question under oath here today?
                  A. Yes.
                  Q. Now, on July the 30th, 1996, did you have occasion
                     to tell your mother, Margaret Smith, that your father
                     had touched you?
                  A. Yes.
                  Q. Touched you in a bad way?
                  A. Yes.



        The alleged victim had told her mother that the defendant, the above-

mentioned father, had reached inside her garments and touched her private

parts in January 1996, when she was twelve years of age. She had further

stated that the defendant offered her candy and money for her silence. The

alleged victim also described the incident to Henry County Sheriff’s Department

Investigator Gary Vandiver and to Carolyn Jean Gore, an investigator with the

Department of Children Services.

                                         -2-
           At trial, the state proceeded from the above initial testimony through the

    details of her original accusation. The alleged victim testified that the developed

    narrative correctly reflected her original accusation, but she completely and

    unequivocally maintained that the incident did not occur.



           After her denial, the state posed several questions regarding what she

    told her mother. For example: “Now, I believe you told your mother that you

    were laying in the living room floor that particular evening. Is that correct?” The

    state started omitting the language that restricted its questions to what she told

    her mother, versus what actually happened, and the alleged victim reasserted

    her denial:

                  Q. And ultimately you told him no, stop, don’t do that?
                  A. Yes. But that didn’t happen.
                  Q. But you told your mother on July the 30th, 1996 that he
                      ran his hand underneath your shorts, underneath your
                      underwear and touched, I believe your words were, your
                     privates?
                  A. Yes.

    She explained that her older sister, who had been dating a boy of whom the

    defendant disapproved, had offered her about twenty dollars for accusing the

    defendant.1



           On cross examination, the alleged victim affirmed her retraction:

                  Q. Okay, [alleged victim], General Garrett has asked you
                     several questions. He’s gone through what you told your
                     mom back in July of ‘96, remember?
                  A. Yes.
                  Q. And you’re telling this jury here today that didn’t
                     happen?
                  A. Yes.
                  Q. Has anyone -- has your dad or has your mom or has
                     anyone else talked to you and tried to change -- and got
                      you to change your mind and tell these people that it
                     didn’t happen?
                  A. No.




1
   Direct ex amin ation reve aled that the alleged victim advised the pros ecutor s everal da ys prior to
trial that the touching did not occur and that this older sister persuaded her to accuse the
defend ant.

                                                    -3-
              Q. So you’re saying that you are telling these people the
                 truth here today when you say that this didn’t happen?
              A. Yes.
              Q. And, once again, why did you first say that it did
                 happen?
              A. Because my sister, she -- she wanted to date Bill Smith
                 and my dad wouldn’t let her. And she said she would
                 pay me money if I said that.
              ....
              Q. Now, you say now today you’re telling these twelve
                 people that your dad never has touched you in your
                 private parts?
              A. Yes.
              Q. And no one has tricked you or promised you anything or
                 threatened you or told you anything to make you change
                 your story?
              A. No.
              Q. You’re telling the jury the truth here today?
              A. Yes.
              ....
              Q. [Alleged victim], it’s very, very important because these
                  twelve people right here have a tough decision that they
                  have to make today, and a lot of that is going to rest
                 upon what you tell them -- it’s very important that you
                 tell them the truth. Do you understand that?
              A. Yes.
              Q. And what you’re telling everyone here today is the
                 statement that you gave to Ms. Gore and to Officer
                 Vandiver and what you told your mom that that was
                 made up by you and your sister?
              A. Yes.
              Q. And that it didn’t happen?
              A. Yes.
              Q. Your father has never touched you in your private area.
                  Is that what you’re telling these people today?
              A. Yes.




       The state did not redirect but called three other witnesses. The alleged

victim’s mother testified that the alleged victim told her about the touching

incident in July 1996. The mother also testified that on several subsequent

occasions the alleged victim denied that the touching had occurred. Gore

testified that the alleged victim described the incident to her, including the offered

candy and money. Gore further testified that no physical proof of molestation

was evident but that such absence is typical under these circumstances.

Investigator Vandiver testified that the alleged victim had stated that the

defendant had touched her private parts. Vandiver further testified that the

alleged victim later advised him that the incident did not occur. Vandiver



                                         -4-
produced a transcript of a recorded interview with the defendant, during which

the defendant, after waiving his right to have counsel present, admitted to his

touching the alleged victim’s private parts in January 1996. The defendant cried

during the interview and expressed regret that the touching had occurred.

Vandiver also produced a statement, signed by the defendant, in which the

defendant admitted touching the alleged victim’s genital area until she asked him

to stop in January 1996. The defendant did not testify at trial.



                            STANDARD OF REVIEW

       The defendant submits that the evidence was insufficient as a matter of

law to sustain his conviction. When an appellant challenges the sufficiency of

the evidence, this Court must determine whether, after viewing the evidence in a

light most favorable to the prosecution, any rational trier of fact could have found

the essential elements of a crime beyond a reasonable doubt. See Jackson v.

Virginia, 443 U.S. 307, 319 (1979); State v. Duncan, 698 S.W.2d 63, 67 (Tenn.

1985); Tenn. R. App. P. 13(e). This Court grants the appellee the strongest

legitimate view of the evidence and all reasonable inferences that may be drawn

therefrom. See State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).



       The credibility of witnesses, the weight of their testimony, and the

reconciliation of conflicts in the evidence are matters entrusted exclusively to the

trier of fact. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); see also

State v. Gentry, 881 S.W.2d 1, 3 (Tenn. Crim. App. 1993). A jury verdict for the

state accredits the testimony of the state’s witnesses and resolves all conflicts in

favor of the state. See State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983). A

guilty verdict also replaces the defendant’s presumption of innocence with a

presumption of guilt. See State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). A

defendant challenging the sufficiency of the evidence carries the burden of

illustrating why the evidence insufficiently supports the verdict. See State v.

Freeman, 943 S.W.2d 25, 29 (Tenn. Crim. App. 1996).


                                         -5-
                                       ANALYSIS

       The trial court convicted the defendant of aggravated sexual battery, an

“unlawful sexual contact with a victim by the defendant” accompanied by one of

four enumerated circumstances. Tenn. Code Ann. § 39-13-504(a). The Code

states the relevant circumstance: “The victim is less than thirteen (13) years of

age.” Tenn. Code Ann. § 39-13-504(a)(4). The victim testified that she was

twelve years of age when the incident occurred, and nothing in the record

challenges this statement. Therefore, the pertinent circumstance applied if a

rational trier of fact could have found that the evidence sufficiently established

that sexual contact occurred. Sexual contact “includes the intentional touching

of the victim’s . . . intimate parts, if that intentional touching can be reasonably

construed as being for the purpose of sexual arousal or gratification,” and the

term “intimate parts” specifically comprises the genital area. Tenn. Code Ann. §

39-13-501(2), (6).



       This Court must now determine if sufficient evidence supports this

conviction under the pertinent statute. At trial, the state entered both the

defendant’s signed statement and a transcript of a separate interview with the

defendant. In the transcript, the defendant waived his right to counsel and

admitted his inappropriately touching the victim in January 1996, under

circumstances corroborating the victim’s original claim. In this interview, the

defendant indicated remorse and shame for his actions. In the signed

statement, the defendant admitted touching the victim’s genital area until she

asked him to stop. Both these inculpatory statements are confessions. See

Helton v. State, 547 S.W.2d 564, 566 (Tenn. 1997) (A confession is a statement

by an accused admitting that he engaged in conduct constituting a crime. An

admission is acknowledgment by an accused of certain facts that, together with

other facts, tend to establish his guilt.).




                                              -6-
       Some evidence must establish a corpus delicti, thereby corroborating and

properly sustaining a conviction based on such inculpatory statements. See

State v. Ervin, 731 S.W.2d 70, 72 (Tenn. Crim. App. 1986). A corpus delicti

indicates that someone, not necessarily the accused, actually committed a

charged crime, and an accused need not be connected to the established crime

by any evidence other than his own confession. See Taylor v. State, 479

S.W.2d 659, 661 (Tenn. Crim. App. 1972). A rational trier of fact considering

the statements of accusation as substantive evidence in conjunction with the

defendant’s inculpatory statements could have concluded that the defendant

actually touched the alleged victim’s private parts. On this evidence, a rational

trier of fact could have further concluded that prurient interest motivated the

defendant and that the evidence satisfied beyond a reasonable doubt the

elements of the charged crime.



       Despite the inculpatory statements, the defendant proposes that several

factors preclude a finding of sufficient evidence:

          1. The investigating representative from the Department of Human
             Services presented no physical proof of an aggravated sexual
             battery.
          2. An investigating police officer testified that the victim advised him
             that the alleged touching did not occur.
          3. The victim’s mother testified that the victim retracted her accusation
             on at least two occasions and that the victim stated that she
             fabricated the incident to facilitate her older sister’s dating a boy of
             whom the defendant disapproved.
          4. The victim herself testified that the incident did not occur and
             that she had fabricated the incident on behalf of the older sister.



       Because the definition of sexual battery comprises “touching,” lack of

physical evidence of contact is not determinative. Gore testified that physical

evidence is typically absent in this type of sexual battery case. Therefore, this

factor, on its own, does not preclude a finding of evidence sufficient to sustain

the conviction.




                                         -7-
           The defendant’s remaining enumerated observations invoke this Court’s

    questioning the characterization of the testimony of the alleged victim’s prior

    statements, those statements being issued out of court and free from oath. In

    the record submitted to this Court, the testimony regarding the alleged victim’s

    prior statements of accusation could not have been substantive. Rather, this

    evidence constituted prior inconsistent statements that, absent any applicable

    hearsay exceptions, were competent only for impeaching the alleged victim’s

    retractions.2 See Tenn. R. Evid. 613; see also Tenn. R. Evid. 607 (“The

    credibility of a witness may be attacked by any party, including the party calling

    the witness.”). Prior inconsistent statements are not substantive evidence. See

    King v. State, 215 S.W.2d 813 (Tenn. 1948); Mosely v. Goodman, 195 S.W. 590

    (Tenn. 1917); Dailey v. Bateman, 937 S.W.2d 927, 930 (Tenn. Ct. App. 1996).



              Our state Supreme Court has addressed the admissibility of such

    evidence in a comparable case. In King, 215 S.W.2d at 814, a trial court

    convicted a defendant of incest with his daughter, based on his confession and

    on a statement from that daughter. The daughter, technically an accomplice

    under the law at that time, repudiated her statement while on the stand at trial,

    and the trial court “carefully limited the purpose for which [her] pretrial confession

    was admissible.” Id. at 814-15. The King defendant’s confession was

    independently insufficient for conviction. The daughter’s out-of-court statement,

    recanted on the stand, constituted the only possible corroborative evidence, and

    the trial court’s instruction properly precluded that application of the statement.

    See id. at 814, 815.



           The issue of “fresh complaint” did not arise at trial in the instant case, but

    our state’s Supreme Court has addressed issues paralleling our present inquiry



2
   Counsel generally establish a proper foundation for impeachment by a prior inconsistent
statement by eliciting from witnesses either denial or lack of recollection of prior out-of-court
statem ents. See Puckett v. Laster, 405 S.W .2d 35, 39 (Tenn . Ct. App. 1 965). Ho wever, a party
surp rised by tes timo ny m ay ask a witn ess abou t a prio r con tradic tory sta tem ent a nd th us ex plain
the con tradiction. See Rhea v. State , 347 S.W .2d 486, 488 (Tenn. 1961 ).

                                                      -8-
in the context of that particular doctrine, and those decisions preclude certain

characterizations of the prior statements. The “fresh complaint” doctrine allows a

prosecutor to enter the fact of a complaint of a sexual offense reported some

time after the actual offense. See State v. Kendricks, 891 S.W.2d 597, 602-03

(Tenn. 1994). Such evidence may be “admissible as substantive evidence if it

satisfies some hearsay exception and as corroborative evidence if it satisfies the

prior consistent statement rule.” State v. Livingston, 907 S.W.2d 392, 395

(Tenn. 1995) (emphasis added). Therefore, “fresh complaint” evidence does not

avoid the general requirements for qualifying as substantive evidence.



       Livingston and the subsequent line of cases establish additional

propositions relevant to the instant case. First, counsel offering “fresh complaint”

testimony as prior consistent statements must establish a foundation. “When the

credibility of a witness is impeached with the suggestion that the testimony is

fabrication or based on faulty recollection, prior inconsistent statements may be

introduced for the sole purpose of corroborating the testimony of the witness.”

State v., Robinson, 971 S.W.2d 30, 43 (Tenn. Crim. App. 1997) (emphasis

added). In the instant case, the state did not accuse its witness, the alleged

victim, of lying or of possessing a faulty memory. The state was not

rehabilitating the witness after an attack on her credibility, and the evidence does

not qualify as prior consistent statements. Even if the statements constituted

prior consistent statements, then, absent a hearsay exception, that testimony

would still not be substantive.



       Further, the third party testimony does not qualify as fresh complaint

evidence. Generally, a party can not prove prior inconsistent statements by

testimony from other parties. See Rhea v. State, 347 S.W.2d 486, 488 (Tenn.

1961). In Livingston, a six year old victim advised her school guidance counsel

that she had engaged in fellatio with her father, but that counselor’s testimony at

trial “did not qualify as fresh-complaint evidence.” Livingston, 907 S.W.2d at 395.



                                        -9-
Gore’s and Vandiver’s testimony, relating the alleged victim’s statements to them

regarding the accusation and accompanying details, may prove neither the event

in question nor prove the alleged victim was being truthful when she originally

accused the defendant.



       Finally, the “fresh complaint” doctrine does not apply if an alleged

victim/witness was under thirteen years of age at the time of the alleged offense.

See Livingston, S.W.2d at 395 and State v. Schaller, 975 S.W.2d 313, 320-21

(Tenn. Crim. App. 1997). Therefore, the ‘fresh complaint” doctrine is

inapplicable in the instant case.



       Because the statements of accusation are not substantive evidence, the

defendant’s inculpatory statements are the only substantive evidence in the

record before this Court. However, the defendant neither objected to the offered

prior inconsistent statement evidence nor requested a contemporaneous limiting

instruction. Even absent a special request, such omission may constitute

reversible error. See State v. Reece, 637 S.W.2d 858, 861 (Tenn. 1982). The

Reece opinion states that a trial court’s omitting a limiting instruction as regards

impeachment testimony may constitute reversible error, even absent a special

request or objection. The Reece opinion further cites the King opinion as an

example of a trial court’s properly limiting such evidence. However, in Reece

the defendant raised the issue of the omission on appeal. Although the

defendant in the instant case alleges that the evidence at trial did not support a

conviction, he does not specifically invoke the evidentiary status of the prior

inconsistent statements as an issue.



       This Court generally reviews only issues presented. See Tenn. R. App. P.

13(b). However, under limited circumstances this Court may consider an issue

not formally presented. See id.; see also Tenn. R. Crim. P. 52(b). Under the

applicable standard, the error must constitute “plain error,” affecting a



                                        -10-
“substantial right” of the accused. State v. Adkisson, 899 S.W.2d 626, 639

(Tenn. Crim. App. 1994). The determinative factors as regards “plain error” are:



       (a) the record must clearly establish what occurred in the trial court;
       (b) a clear and unequivocal rule of law must have been breached;
       (c) a substantial right of the accused must have been affected;
       (d) the accused did not waive the issue for tactical reasons; and
       (e) consideration of the error is “necessary to do substantial
            justice.”


Id. at 641-42.



       The transcript clearly indicates that the state examined the alleged victim

in great detail regarding her original accusation. The state continued its detailed

presentation of the original accusation via testimony of investigators from both

the Sheriff’s Department and the Department of Human Services. The trial court

did not contemporaneously limit application of this evidence. Impeachment

evidence considered as substantive evidence, absent any other bases of

admissibility, clearly breaches established law. Nothing in the record indicates a

waiver of either a pertinent objection or a request for jury instructions for tactical

reasons. The jury could not properly consider the hearsay prior inconsistent

statements as substantive evidence and thereby corroborate the defendant’s

inculpatory statements. Therefore, if the trial court did not limit application of the

evidence in the jury instructions, that omission severely prejudiced the

defendant’s right to a fair trial. The conviction can not stand without any

corroborating evidence, and an error sufficiently egregious to probably change

the outcome of a trial constitutes plain error. See id. at 642.



       Therefore, if the trial court omitted a limiting instruction to the jury, this

omission constituted “plain error.” We must determine if such error would be

harmless. We consider error “in context of the entire record of the trial

proceedings” and note that, as a matter of law, the conviction can not stand

without some degree of corroboration for the inculpatory statements. The prior



                                          -11-
    statements were the only other evidence in the record and were the only source

    of corroboration. If the trial court did not issue the appropriate limiting

    instruction, then that error was not harmless beyond a reasonable doubt. Id. at

    642-43.



                                         CONCLUSION

           A conviction based only on inculpatory statements with no independent

    evidence of a corpus delicti is invalid. Even if the trial court properly limited

    application of the statements, a verdict against the defendant would therefore

    still fail as a matter of law. 3 The cited precedent and the Tennessee Rules of

    Evidence compel our reversing this conviction and dismissing the case.



           Based on the foregoing, the judgment of the trial court is REVERSED and

    the case is DISMISSED.




                                                     _____________________________
                                                     JOHN EVERETT W ILLIAMS, Judge



    CONCUR:




    _____________________________
    DAVID G. HAYES, Judge




    _____________________________
    JOE G. RILEY, Judge




3
  The submitted record does not comprise the jury instructions, but the transcript states that the
defendant did not make a special request for instructions.

                                                -12-
-13-
