          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT JACKSON

                            JULY 1998 SESSION
                                                               FILED
                                                            August 25, 1998
STATE OF TENNESSEE,                 )    NO. 02C01-9708-CC-00334
                                    )                     Cecil Crowson, Jr.
      Appellee,                     )    BENTON COUNTY Appellate C ourt Clerk
                                    )
VS.                                 )    HON. JULIAN P. GUINN,
                                    )    JUDGE
REGINALD L. EDMONDS,                )
                                    )    (Rape of a Child, Aggravated Sexual
      Appellant.                    )    Battery, Especially Aggravated
                                    )    Sexual Exploitation)



FOR THE APPELLANT:                       FOR THE APPELLEE:

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

VICKI S. SNYDER                          PETER M. COUGHLAN
Assistant Public Defender                Assistant Attorney General
117 N. Forrest Avenue                    Cordell Hull Building, 2nd Floor
P.O. Box 663                             425 Fifth Avenue North
Camden, TN 38320                         Nashville, TN 37243-0493

                                         G. ROBERT RADFORD
                                         District Attorney General

                                         VICTORIA DIBONAVENTURA
                                         STEVEN L. GARRETT
                                         Asst. District Attorneys General
                                         111 Church Street
                                         P.O. Box 686
                                         Huntingdon, TN 38344-0686




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                           OPINION



         The defendant, Reginald L. Edmonds, was convicted by a Benton County

jury of two (2) counts of rape of a child, one (1) count of aggravated sexual battery

and one (1) count of especially aggravated sexual exploitation of a minor. He was

sentenced as a Range I offender to concurrent terms of twenty (20) years for each

rape count, twelve (12) years for aggravated sexual battery and twelve (12) years

for especially aggravated sexual exploitation. On appeal, he presents the following

issues for our review:

         (1) whether the evidence was sufficient to sustain the verdicts of guilt;

         (2) whether the trial court erred in denying his motion to suppress his
         statement given to law enforcement authorities; and

         (3) whether the trial court erred in allowing the state to introduce a
         statement by the victim as an excited utterance.

After a thorough review of the record before this Court, we find no reversible error.

Accordingly, the judgment of the trial court is affirmed.



                                            FACTS



         The defendant was the father of the ten (10) year old victim, C.E.1, and her

thirteen (13) year old brother, T.E. Both children had been living with the defendant

since he separated from their mother in 1989.

         At trial, the victim testified as to four incidents of sexual abuse by the

defendant. As to Count One which charged rape of a child, C.E. testified that

several days before Christmas 1996, she was trying on some clothes. While she

was changing, she noticed her father watching her through a hole in the wall.

Defendant then opened the door, watched her for a few moments and then led her

into another room. The victim was wearing only her underwear. Defendant then

laid down on the bed, put his penis into her mouth and made her “rub it up and



         1
             It is the policy of this Court not to reveal the names of minor victims of sexual
abuse.

                                                2
down” until he ejaculated.

       As to Count Two which charged especially aggravated sexual exploitation of

a minor, the victim testified that the defendant made a video of her while she was

living with him. The videotape was introduced at trial and depicts the nude victim

simulating masturbation.

       As to Count Three charging rape of a child, C.E. testified that before

Christmas 1996, defendant made her and her brother take their clothes off and get

into bed with him. She referred to this as the “pajama party.” She further testified

that once she was in bed with him, her father “pulled [her] panties down and he put

his dick in [her] butt.”

       As to Count Four charging rape of a child, the victim testified that when she

was eight (8) years old, defendant put his “finger up in [her] butt.” When she asked

the defendant to leave her alone, defendant took her into another room and told her

to “kiss” his penis. When she refused, defendant struck her. The defendant kept

the victim at home for the next two days because of the bruising on the side of the

victim’s face.

       Peggy Jamison, the victim’s mother, testified at trial that on Saturday,

December 21, 1996, she spoke with her daughter on the telephone. C.E. was

crying and would not tell her mother what was bothering her. The next day,

Jamison picked her children up from their father’s home. C.E. was withdrawn and

crying, then suddenly asked her mother what a “blow job” was. Upon further inquiry

by her mother, the victim stated her father had molested her.

       T.E., the victim’s brother, testified at trial concerning the “pajama party” that

occurred in the fall of 1996. He stated that his father asked him and his sister to

take most of their clothes off and get into bed with him. He could recall that at one

point his sister told his father to “stop.” He also testified that in the spring of 1994,

his father hit his sister, causing a bruise on her face.

       Benton County Sheriff Bobby Shannon also testified at trial. Upon arresting

defendant in December 1996, he confiscated the videotape which subsequently

became the basis of the sexual exploitation charge. When he confronted the



                                           3
defendant with the tape and pointed out that the victim was visibly distraught, the

defendant responded, “if I’d . . . screwed her she’d had a smile on her face.”

Defendant denied having sexual intercourse with his daughter and told Sheriff

Shannon that he was merely examining the victim for “parasites.” At one point

during their conversation, defendant told Shannon that he made the tape “[t]o have

a little fun.”

         Defendant testified on his own behalf at trial. He denied sexually abusing his

daughter and initially denied making the videotape, but eventually admitted making

the tape to “examine [the victim] for like parasites.” Defendant also denied that he

asked his children to take off their clothes and get into bed with him. However, the

following exchange occurred on cross-examination:

         Q.             Mr. Edmonds, your thirteen year old son [T.E.]
                 has come in here under oath and has testified that you
                 had him take off his clothes and get in bed and you got
                 in bed with your underwear ---

         A.               Well, he had his underwear on too. I mean if he
                 did -- if we did it, okay.

         Q.             He had his underwear on too?

         A.             Yeah. I didn’t tell him to take his clothes off
                 completely, if I -- if we ever did anything like that. That’s
                 just not me. I don’t do that kind of thing. . .

         The jury found defendant guilty of rape of a child in Counts One and Four,

especially aggravated sexual exploitation in Count Two and the lesser offense of

aggravated sexual battery in Count Three. Defendant now brings this appeal as of

right.



                           SUFFICIENCY OF THE EVIDENCE



         Defendant challenges the sufficiency of the convicting evidence. Specifically,

he claims that the victim “could not state with any certainty regarding dates of any

of the alleged events.” He also argues that the state failed to present any medical

proof which would corroborate the victim’s allegations. Therefore, he asserts that

the evidence was insufficient for a rational trier of fact to find him guilty beyond a



                                              4
reasonable doubt.

                                          A.

       Where sufficiency of the evidence is challenged, the relevant question for an

appellate 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 or crimes beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson

v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State

v. Abrams, 935 S.W.2d 399, 401 (Tenn. 1996).

       Great weight is given to the result reached by the jury in a criminal trial. A

jury verdict accredits the state's witnesses and resolves all conflicts in favor of the

state. State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994); State v. Harris, 839

S.W.2d 54, 75 (Tenn. 1992). On appeal, the state is entitled to the strongest

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

therefrom. Bigbee, 885 S.W.2d at 803; Harris, 839 S.W.2d at 75; State v. Cabbage,

571 S.W.2d 832, 835 (Tenn. 1978).          Moreover, a guilty verdict removes the

presumption of innocence which the appellant enjoyed at trial and raises a

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

The appellant has the burden of overcoming this presumption of guilt. Id.

                                          B.

       Defendant was convicted of rape of a child in Counts One and Four. Rape

of a child is “the unlawful sexual penetration of a victim by the defendant or the

defendant by a victim, if such victim is less than thirteen (13) years of age.” Tenn.

Code Ann. § 39-13-522(a). Sexual penetration is defined as “sexual intercourse,

cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any

part of a person's body . . . into the genital or anal openings of the victim's . . .

body.” Tenn. Code Ann. § 39-13-501(7).

       As to Count One, the ten (10) year old victim testified that several days prior

to Christmas 1996, her father put his penis into her mouth. As to Count Four, the

victim testified that when she was eight (8) years old, defendant put his “finger up

in [her] butt.” The evidence was sufficient to support defendant’s convictions for



                                          5
rape of a child in Counts One and Four.

                                           C.

       In Count Two, defendant was convicted of especially aggravated sexual

exploitation of a minor. That offense is defined as knowingly promoting, employing,

using, assisting, transporting or permitting “a minor to participate in the performance

or in the production of material which includes the minor engaging in: (1) [s]exual

activity; or (2) [s]imulated sexual activity that is patently offensive.” Tenn. Code

Ann. § 39-17-1005(a). “Material” means “[a]ny picture, drawing, photograph, motion

picture film, videocassette tape or other pictorial representation.” Tenn. Code Ann.

§ 39-17-1002(2)(A). “Sexual activity” includes the act of masturbation. Tenn. Code

Ann. § 39-17-1002(7)(B).

       The victim testified that the defendant made a videotape of her in the spring

of 1996. The videotape was introduced at trial and depicts the victim fondling

herself in various positions and masturbating. Although defendant testified that he

was merely examining his daughter for “parasites,” a viewing of this graphic and

lewd videotape clearly reveals the preposterous nature of defendant’s claim. This

sickening evidence is sufficient to support the jury’s finding of guilt of especially

aggravated sexual exploitation of a minor.

                                           D.

       Although defendant was indicted for rape of a child in Count Three,

defendant was convicted of the lesser offense of aggravated sexual battery.

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 of age.” Tenn. Code Ann. § 39-13-504(a)(4). “‘Sexual contact’ includes the

intentional touching of the victim's . . . intimate parts, or the intentional touching of

the clothing covering the immediate area of the victim'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). “Intimate parts” is

defined as “the primary genital area, groin, inner thigh, buttock or breast of a human

being.” Tenn. Code Ann. § 39-13-501(2).



                                           6
       Both C.E. and T.E. testified that prior to Christmas 1996, defendant made

them take their clothes off and get into bed with him. The victim testified that her

father then “pulled [her] panties down and he put his dick in [her] butt.” T.E. could

recall that while they were in bed with their father, C.E. told him to “stop.”

Furthermore, defendant essentially admitted the occurrence of the “pajama party”

in his own testimony. The evidence is sufficient to support defendant’s conviction

for aggravated sexual battery.

                                         E.

       Defendant contends that the evidence is insufficient to support his

convictions because the victim did not testify as to the specific dates of the

offenses. However, the state has no burden to prove that an offense happened on

the exact date alleged in the indictment. “The rule is that the offense must be

proved to have been committed prior to the finding of the indictment . . . and, except

where a special date is essential or time is of the essence of the offense, the time

of the commission of the offense averred in the indictment is not material and proof

is not confined to the time charged.” State v. West, 737 S.W.2d 790, 792 (Tenn.

Crim. App. 1987). Indeed,

       [t]he time at which the offense was committed need not be stated in
       the indictment, but the offense may be alleged to have been
       committed on any day before the finding thereof, or generally before
       the finding of the indictment, unless the time is a material ingredient
       in the offense.

Tenn. Code Ann. § 40-13-207; see also State v. Byrd, 820 S.W.2d 739, 740 (Tenn.

1991). A review of the entire record indicates that the state presented sufficient

proof that the offenses occurred “on or about” the dates alleged in the indictment.

       Additionally, there does not appear to be a jury unanimity problem under

State v. Shelton, 851 S.W.2d 134 (Tenn. 1993). An election of offenses was not

required since there was testimony about only four (4) sexual offenses and each

was alleged in a separate count of the indictment. See generally State v. Walton,

958 S.W.2d 724, 727 (Tenn. 1997).

                                         F.

       Defendant further asserts that the evidence is insufficient because the state


                                          7
did not present any medical proof that would corroborate the victim’s testimony. A

nurse practitioner who examined the victim on December 23 testified that her

examination neither confirmed nor ruled out the allegations of sexual abuse.

Although the medical proof was inconclusive, the jury was able to weigh and assess

the testimony of the nurse practitioner along with that of the other witnesses. The

weight and credibility of the witnesses' testimony are matters entrusted exclusively

to the jury as the triers of fact. State v. Brewer, 932 S.W.2d 1, 19 (Tenn. Crim. App.

1996). Further, there is no requirement that the victim’s testimony be corroborated

by medical testimony. The fact that medical testimony could not confirm nor rule

out sexual abuse is a matter of weight for the jury. State v. Howard, 617 S.W.2d

656, 658 (Tenn Crim. App. 1981).

                                         G.

        The evidence is sufficient to support each of the defendant’s convictions.

This issue is without merit.



                               MOTION TO SUPPRESS



        Defendant further alleges that the trial court erred in denying his motion to

suppress his statements to law enforcement authorities. He claims that Sheriff

Shannon questioned him in violation of his constitutional rights because Shannon

did not obtain a signed waiver of defendant’s Miranda rights prior to questioning

him. He further complains that Shannon did not record the defendant’s statement,

nor did he inquire whether defendant was intoxicated during the interview. He,

therefore, asserts that he did not knowingly and voluntarily waive his rights prior to

giving a statement to authorities, and the statement should have been suppressed

at trial.

                                         A.

        Sheriff Shannon testified at the motion to suppress that on December 24,

1996, he, along with other law enforcement officers, went to defendant’s home to

serve an arrest warrant on defendant in connection with the present offenses.


                                          8
Defendant invited them inside, and Sheriff Shannon advised him of his Miranda

rights. Shannon told defendant that they were looking for some videotapes, and

defendant told him to “get a warrant.”

       Shannon arrested defendant and took him to the Benton County Jail. As

Shannon was attempting to procure a search warrant, he and defendant began

discussing the present charges. Shannon testified that although defendant never

formally waived his right to an attorney, he never asked for an attorney. He stated

that he read the defendant his Miranda rights twice prior to defendant giving a

statement. He further testified that defendant did not appear to be under the

influence of any intoxicant.

       The state also introduced defendant’s testimony from the preliminary hearing

where he acknowledged that he was informed of his right to an attorney and his

right to remain silent.

       The trial court overruled the motion to suppress, finding that “the record [was]

abundantly clear” that defendant waived his constitutional rights prior to speaking

with Sheriff Shannon.

                                          B.

       When an accused moves to suppress his statement given to a law

enforcement officer, the findings of fact made by the trial court at the hearing on the

motion are binding upon this Court unless the evidence contained in the record

preponderates against these findings. State v. Smith, 933 S.W.2d 450, 455 (Tenn.

1996); State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996); State v. Stephenson, 878

S.W.2d 530, 544 (Tenn. 1994). The trial court, as the trier of fact, is able to assess

the credibility of the witnesses, determine the weight and value to be afforded the

evidence and resolve any conflicts in the evidence. See State v. Odom, 928

S.W.2d at 23. However, this Court is not bound by the trial court’s conclusions of

law. The defendant has the burden of establishing that the evidence contained in

the record preponderates against the findings of fact made by the trial court. Braziel

v. State, 529 S.W.2d 501, 506 (Tenn. Crim. App. 1975).

                                          C.



                                          9
       In Miranda v. Arizona, the United States Supreme Court held that the

prosecution cannot admit a statement by the defendant stemming from “custodial

interrogation” unless it demonstrates the use of procedural safeguards effective to

secure the privilege against self-incrimination. 384 U.S. 436, 444, 86 S.Ct. 1602,

1612, 16 L.Ed.2d 694 (1966).

       A valid waiver of an accused’s Miranda rights is not presumed “simply from

the silence of the accused after warnings are given or simply from the fact that a

confession was in fact eventually obtained.” 384 U.S. at 475, 86 S.Ct. at 1628.

However, an express written or oral waiver of a defendant’s Miranda rights is not

necessary to establish a valid waiver. North Carolina v. Butler, 441 U.S. 369, 373,

99 S.Ct. 1755, 1757, 60 L.Ed.2d 286 (1979); State v. Elrod, 721 S.W.2d 820, 823

(Tenn. Crim. App. 1986). Although mere silence is not enough to establish waiver,

silence “coupled with a[ defendant’s] understanding of his rights and a course of

conduct indicating waiver” may support a conclusion that a defendant waived his

rights. Butler, 441 U.S. at 373, 99 S.Ct. 1757; see also State v. Elrod, 721 S.W.2d

at 823. Determination of whether a defendant effectively waived his Miranda rights

depends upon the totality of the circumstances, including “the background,

experience, and conduct of the accused.” Butler, 441 U.S. at 374-75, 99 S.Ct. at

1758 (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed.

1461 (1938)). Considering the totality of the circumstances, there must be an

indication that (1) defendant’s choice to waive his rights was not coerced, and (2)

defendant was able to comprehend the rights he was waiving. State v. Stephenson,

878 S.W.2d at 545.

                                         D.

       At the time of his arrest, defendant was thirty-seven (37) years of age and

had no prior criminal record. Sheriff Shannon testified that he read defendant his

Miranda rights twice prior to defendant giving a statement. Although defendant

never formally waived his right to remain silent and his right to counsel in writing,

defendant never requested an attorney.

       The trial court found that the record was “abundantly clear” that defendant



                                         10
voluntarily waived his right to counsel and to remain silent. In light of the totality of

the circumstances, we see no reason to disturb this ruling.

       This issue is without merit.



                               EXCITED UTTERANCE



       Defendant further argues that the trial court erred in allowing Jamison, the

victim’s mother, to testify as to statements made by the victim. He alleges that the

statements were inadmissible under the fresh complaint doctrine for child victims

pursuant to State v. Livingston, 907 S.W.2d 392 (Tenn. 1995). The state counters

with the argument that the statements were not admitted under the fresh complaint

doctrine, but under the excited utterance exception to the hearsay rule. See Tenn.

R. Evid. 803(2). Although victims’ statements are no longer admissible under the

fresh complaint doctrine, they may be admissible as an excited utterance. State v.

Gordon, 952 S.W.2d 817, 819 (Tenn. 1997); State v. Livingston, 907 S.W.2d at

395.

                                           A.

       Jamison testified that on the night of December 21, she spoke with her

daughter on the telephone, and C.E. was crying. C.E. would not tell her mother

what was troubling her. When Jamison picked her children up from their father’s

home the next day, she noticed that C.E. was crying and “withdrawn.” C.E. asked

her mother what a “blow job” was. The victim then told her mother that “her father

had molested her. He had touched her, he had done things with her.”

                                           B.

       Tenn. R. Evid. 803(2) excepts from the hearsay rule any statement “relating

to a startling event or condition made while the declarant was under the stress of

excitement caused by the event or condition.” In order for a statement to be

admissible under the excited utterance exception to the hearsay rule, the proponent

of the statement must establish: (1) the occurrence of a startling event or condition;

(2) the statement related to that startling event or condition; and (3) the declarant


                                           11
was under the stress of excitement when the statement was made. See N. Cohen,

D. Paine & Sheppeard, Tennessee Law of Evidence § 803(2).2 (3d ed. 1995).

       The ultimate test is spontaneity and logical relation to the main event
       and where an act or declaration springs out of the transaction while
       the parties are still laboring under the excitement and strain of the
       circumstances and at a time so near it as to preclude the idea of
       deliberation and fabrication.

State v. Smith, 857 S.W.2d 1, 9 (Tenn. 1993).             Furthermore, the fact that a

statement is in response to a question does not necessarily exclude it from the

excited utterance exception. Id.

                                            C.

       We conclude that the trial court did not err in admitting the victim’s

statements to her mother as an excited utterance under Tenn. R. Evid. 803(2). 2

The victim was raped by her father. Rape is considered a startling event or

condition. State v. Rucker, 847 S.W.2d 512, 517 (Tenn. Crim. App. 1992); State

v. Person, 781 S.W.2d 868, 872 (Tenn. Crim. App. 1989). There is no dispute that

the statement related to the startling event or condition.

       Furthermore, the victim was obviously under the stress of the event.

Although the victim made the statement at least one day after the startling event,

the time interval “is material only as a circumstance bearing on the issue of

continuing stress.” Cohen, Paine & Sheppeard, Tennessee Law of Evidence, supra

at 534. Other factors to consider are the “nature and seriousness of the events, and

the appearance, behavior, outlook and circumstances of the declarant.” State v.

Smith, 868 S.W.2d 561, 574 (Tenn. 1993). The ten (10) year old victim had been

raped by her father the previous day. Jamison testified that the victim was crying

and “withdrawn” at the time she made her statement.                  The circumstances

surrounding the victim’s statement establish that it “was not made as the result of

a conscious fabrication or reflection” but was prompted by the distressed and crying

victim seeing and talking to her mother. State v. Person, 781 S.W.2d at 872.

       In State v. Gordon, a three (3) year old victim was sexually assaulted by her



       2
         We note that the victim’s question, “what is a blow job?” is non-hearsay, as it was
not offered to prove the truth of the matter asserted. See Tenn. R. Evid. 801.

                                            12
uncle. Later during the same day, the victim was attempting to urinate when she

experienced pain. 952 S.W.2d at 821. Upon her mother’s examination of the child

and finding dried blood in the child’s vagina, she asked her daughter, “[w]ho made

you hurt like that?” Id. The victim then implicated the defendant. Id.

         The Tennessee Supreme Court held that the victim’s statement implicating

the defendant was admissible as an excited utterance. Id. The Court determined

that the child’s attempting to urinate was a startling event and related to the sexual

abuse. Id. Furthermore, the Court concluded that “[a]lthough the victim’s parents

offered reassurance and asked what had happened, the stress of the event had not

diminished and the time was short.” Id. We find the present facts to be analogous

to those in Gordon.

         Regardless, if there was error, it was harmless at best. Tenn. R. Crim. P.

52(a).     The evidence presented against the defendant was overwhelming,

considering the victim’s detailed testimony describing the specific acts of sexual

abuse. In light of this evidence, Jamison’s testimony that the victim told her that her

father “molested her,” “touched her,” and “had done things with her” did not overly

prejudice the defendant.




                                    CONCLUSION



         For the foregoing reasons, we affirm the judgment of the trial court.




                                                  JOE G. RILEY, JUDGE

CONCUR:




CURWOOD WITT, JUDGE


                                          13
ROBERT W. WEDEMEYER, SPECIAL JUDGE




                           14
