        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs February 03, 2015

                      STATE OF TENNESSEE v. ED LOYDE

                  Appeal from the Criminal Court for Shelby County
                     No. 1200603    James C. Beasley, Jr., Judge




                  No. W2014-01055-CCA-R3-CD - Filed April 6, 2015




The defendant, Ed Loyde, was convicted of one count of rape of a child, a Class A felony,
and one count of aggravated sexual battery, a Class B felony. He received an effective
sentence of thirty-five years. On appeal, he raises the sole issue of whether the evidence was
sufficient to support his convictions. After thoroughly reviewing the record, the briefs of the
parties, and the applicable law, we affirm the judgments of the trial court.


        Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court
                                      Affirmed

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which A LAN E. G LENN
and C AMILLE R. M CM ULLEN, JJ., joined.

Stephen C. Bush, District Public Defender; and Harry E. Sayle III (on appeal) and Lawrence
R. White (at trial), Assistant District Public Defenders, for the appellant, Ed Loyde.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Teri Fratesi and Cavett
Ostner, Assistant District Attorneys General, for the appellee, State of Tennessee.



                                         OPINION
                                  FACTS AND PROCEDURAL HISTORY

        In September of 2010, the defendant had been evicted from his residence and needed
a place to stay. He was friends with the victim’s mother, and she brought the defendant’s
plight to the attention of the victim’s grandmother, G.H.1 After speaking with the defendant,
G.H. agreed to let him live in her home. At the time, the eight-year-old victim, her mother,
her stepfather, her older brother, and her younger brother were all living with G.H. G.H. and
the defendant agreed that the stay would only be for a few months, until the defendant could
“get back on [his] feet,” and that he would pay G.H. rent. G.H. had seen the defendant at
church, and he informed her that he was the musical director for two churches and an
aspiring preacher.

        G.H.’s home had five bedrooms, and the defendant slept in the living room. He paid
rent for the first three months that he lived with G.H. and her family, but he stopped paying
rent after November of 2010. G.H. allowed several months to pass before bringing up the
issue of the unpaid rent. The defendant informed her that he had not received a settlement
from the bank that he was expecting, and he told G.H. that he would pay rent once he
received his settlement. By the end of April of 2011, the defendant still had not paid G.H.
any rent money, and she evicted him from her home.

         Shortly after the defendant left G.H.’s residence, the victim told G.H. that the
defendant had abused her. G.H. immediately called the police. Officer Jamie Lambert
testified that he received a call on May 1, 2011, regarding a criminal assault at G.H.’s
address. He was the first officer to arrive at G.H.’s residence, and he spoke with G.H. and
the victim in the living room. G.H. informed him that the victim had been sexually assaulted.
When Officer Lambert spoke with the victim, she appeared “[n]ervous and hesitant to speak
with [him].” The victim told Officer Lambert that on April 9, 2011, the defendant told her
to go to her room, lie down, and remove her clothes. The defendant proceeded to fondle her
vaginal area and then penetrated her, and this episode lasted three or four minutes. After the
incident, the defendant instructed the victim not to tell anyone what happened and exited the
room. She waited until May 1st to report the incident because until that date, the defendant
still lived in G.H.’s home, and the victim was afraid of what the defendant might do to her.

       After the initial interview with Officer Lambert, G.H. took the victim to the Child
Advocacy Center (“CAC”), where a nurse administered a sexual assault exam. The victim
also participated in a forensic interview with Letitia Cole. Ms. Cole testified that the victim
made an “active disclosure,” which is a full disclosure of abuse. The victim identified the


            1
                In order to protect the privacy of the victim and her family, we will refer to family members by their
initials.

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defendant as the perpetrator, and she was able to describe the relationship between herself
and the defendant and used an age-appropriate vocabulary in referring to different body parts.
She told Ms. Cole that the incident occurred on the couch in her living room. The defendant
touched her breast and then told her to go into the living room, take her clothes off, and lie
down on the couch.

        At trial, the victim testified about the incident that occurred with the defendant. She
said that the abuse occurred in G.H.’s living room where the defendant touched her breast
and penetrated her vagina with his penis. The victim was in her home with her two brothers
and the defendant. Her grandmother was also at the home and was asleep in her room. The
defendant instructed the victim’s brothers to go outside and play, and he locked the door once
they exited the house. When the victim asked if she could go outside as well, the defendant
told her she could not. The defendant removed the cushions from the couch, placed them on
the floor, and asked the victim to help him to clean the couch. He then placed his hand under
her shirt and bra and touched her breast for “two or three minutes.” The defendant put the
victim on her stomach on the pillows, and he told her to pull down her pants. The victim
heard “a buckle of a belt” and “a zipper,” and she felt the defendant on top of her and
something “hard” between her legs. The defendant penetrated her vagina with his penis, and
his body “was going up and down.” She felt his penis inside of her vagina. The victim
estimated that the defendant was on top of her for “for fifteen to twenty minutes.”

       The defendant stopped penetrating the victim when he heard the victim’s stepfather
at the door. The defendant started “trying to sweep out the stuff on the couch,” and the
victim went to her bedroom. When she later went to the bathroom, she felt a “wetness”
between her legs that had not been there before the defendant penetrated her. She testified
that she was not bleeding after the incident.

       The victim could not recall the exact date of the incident, but she testified that it
occurred in April, several weeks before her April 21st birthday. She told her older brother
about the abuse, but she did not make a disclosure to anyone else until after the defendant
had moved out of the residence. Her brother testified that the defendant continued to live
with the family for a month after the victim revealed the abuse, but he agreed that it could
have been as long as nine weeks.

       On cross-examination, the victim testified that she did not tell police officers that the
defendant touched her vagina with his hand or that the incident took place on her bedroom
floor and lasted for three or four minutes. She recalled telling Ms. Cole that the incident
occurred on the couch instead of on the floor. She remembered telling police officers and
the forensic interviewer that the defendant told her to take off all of her clothes, and she
agreed that she testified at trial that the defendant told her only to pull her pants down and

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that she did not take off all of her clothes.

        Dr. Karen Lakin testified as an expert in pediatrics and child sexual assault. She
testified that a sexual assault exam was performed on the victim. During the examination,
the victim stated that the defendant “raped [her].” She said that the defendant “stuck his
lower part in [her] private part” and touched her breast. Dr. Lakin testified that there were
no abnormalities or evidence of injuries were found during the examination. She testified
that in “ninety-five to ninety-eight percent” of pediatric sexual assault cases, there were no
physical findings of assault. She explained that there were not often physical findings
because children often did not disclose the assault immediately after it occurred. Dr. Lakin
stated that an increased passage of time between the assault and the examination made it less
likely that the examination would produce physical findings consistent with sexual assault.
She testified that in cases where the examination occurred more than seventy-two hours after
the assault, there was not an attempt to collect DNA evidence because the procedure would
be ineffective. She also testified that the vaginal area was able to heal very quickly, meaning
that there would be no evidence of an assault if the area were examined several weeks after
the assault.

       The jury found the defendant guilty as charged in both counts. The trial court imposed
an effective sentence of thirty-five years. The trial court denied the defendant’s motion for
new trial, and he timely filed a notice of appeal. We now proceed to consider his claims.


                                         ANALYSIS

                                I. Sufficiency of the Evidence

       The defendant argues that the evidence is insufficient to sustain his conviction.
Specifically, he contends that because there was no forensic evidence of the rape and the
victim’s account of the incident was “sketchy,” his convictions must be reversed.

         When a defendant challenges the sufficiency of the evidence, the relevant question
for this court is “whether, after viewing the evidence in the light most favorable to the State,
any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). On appeal, “‘the State
is entitled to the strongest legitimate view of the evidence and to all reasonable and legitimate
inferences that may be drawn therefrom.’” State v. Elkins, 102 S.W.3d 578, 581 (Tenn.
2003) (quoting State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). Therefore, this court will
not re-weigh or reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn.
Crim. App. 1990). Instead, it is the trier of fact, not this court, who resolves any questions

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concerning “the credibility of witnesses, the weight and value to be given the evidence, as
well as all factual issues raised by the evidence.” State v. Bland, 958 S.W.2d 651, 659 (Tenn.
1997). A guilty verdict removes the presumption of innocence and replaces it with a
presumption of guilt. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). The burden is then
shifted to the defendant on appeal to demonstrate why the evidence is insufficient to support
the conviction. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). This court applies the
same standard of review regardless of whether the conviction was predicated on direct or
circumstantial evidence. State v. Dorantes, 331 S.W.3d 370, 381 (Tenn. 2011).

        Aggravated sexual battery is defined as “the unlawful sexual contact with a victim by
the defendant or the defendant by the victim” when the victim is less than thirteen years of
age. T.C.A. § 39-13-504(a)(4) (2010). “Sexual contact” includes the intentional touching
of the victim’s intimate parts for the purpose of sexual arousal or gratification. T.C.A. § 39-
13-501(6). “Intimate parts” includes the breast of the victim. T.C.A. § 39-13-501(2). Rape
of a child is defined as “the unlawful sexual penetration of a victim by the defendant or the
defendant by the victim, if the victim is more than three (3) years of age but less than thirteen
(13) years of age.” T.C.A. § 39-13-522(a). “Sexual penetration” includes sexual intercourse,
cunnilingus, fellatio, or anal intercourse. T.C.A. § 39-13-501(7).

        The fact that there was no forensic evidence of the sexual assault does not entitle the
defendant to relief. First, forensic evidence is not required to establish proof of rape or
sexual battery, as evidence may be sufficient to sustain a conviction for rape of a child or
aggravated sexual battery when the only evidence is the testimony of the victim. See State
v. Collier, 411 S.W.3d 886, 891-92 (Tenn. 2013); State v. Smith, 42 S.W.3d 101, 106 (Tenn.
Crim. App. 2000). Second, Dr. Lakin testified that the vast majority of pediatric sexual
assault cases did not yield forensic evidence because the disclosure often occurred well after
the assault. Here, the record reflects that several weeks passed between the assault and the
victim’s disclosure, and Dr. Lakin testified that this length of time would have rendered a
rape kit ineffective.

         In claiming that the victim’s account of the abuse was “sketchy,” the defendant
essentially asks this court to reevaluate the victim’s credibility, which we will not do on
appeal. As the final arbiter of credibility, the jury chose to resolve the discrepancies between
the victim’s pretrial statements to police and the forensic interviewer and her testimony at
trial in favor of the State. Viewed in the light most favorable to the State, the evidence shows
that the defendant was alone with the victim in the living room of G.H.’s residence. The
defendant reached his hand underneath the victim’s shirt and bra, placing it on her breast.
He then placed her on the ground on couch cushions, instructed her to pull her pants down,
and penetrated her. The victim testified that she felt the defendant on top of her and felt his
penis inside of her vagina. She testified that when she later went to the bathroom, she felt

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a “wetness” between her legs that was not there before the defendant penetrated her, and she
testified that it was not blood. We conclude that the evidence is sufficient to sustain the
defendant’s convictions for aggravated sexual battery and rape of a child. The defendant is
not entitled to any relief.

                                     CONCLUSION

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




                                                  _________________________________
                                                 JOHN EVERETT WILLIAMS, JUDGE




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