             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                               AT JACKSON
                                      Assigned on Briefs May 8, 2002

                   STATE OF TENNESSEE v. ERNEST LEE LITTLES

                        Direct Appeal from the Circuit Court for Obion County
                               No. 0-207   William B. Acree, Jr., Judge



                           No. W2001-01706-CCA-R3-CD - Filed June 25, 2002


An Obion County Circuit Court jury convicted the defendant, Ernest Lee Littles, of rape of a child,
a Class A felony. The trial court sentenced him as a child rapist to twenty years in the Tennessee
Department of Correction, with 100% of the sentence to be served. In his appeal as of right, the
defendant claims only that there was insufficient evidence to support his conviction. We affirm the
judgment of the trial court but remand for entry of a corrected judgment.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed and
                        Remanded for Entry of Corrected Judgment

ALAN E. GLENN, J., delivered the opinion of the court, in which DAVID G. HAYES and JERRY L.
SMITH, JJ., joined.

Clifford K. McGown, Jr., Waverly, Tennessee (on appeal); Joseph P. Atnip, District Public
Defender, Dresden, Tennessee (of counsel on appeal); and Charles Perry Roney, Union City,
Tennessee (at trial), for the appellant, Ernest Lee Littles.

Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney
General; Thomas A. Thomas, District Attorney General; and James T. Cannon, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                                        OPINION

       In June of 2000, the defendant was indicted for the August 1994 rape of his eleven-year-old
daughter, J.L.1 Following a jury trial on November 27, 2000, he was convicted of rape of a child.
On February 15, 2001, the defendant filed a Motion for Judgment of Acquittal, or in the Alternative,


         1
           It is the policy of this court to refer to min or victims of sexu al abuse by initials only. Although the victim was
married at the time of the trial and, thus, had changed her last name, we will refer to her by the initials which she had
at the time o f the incide nt.
a Motion for a New Trial, which was denied by the trial court after a hearing. He then filed a timely
notice of appeal, questioning the sufficiency of the evidence.

                                               FACTS

       The victim, J.L., testified that, as of the time of the trial, she was 17 years old and had been
married for almost ten months. She acknowledged the defendant is her father. The victim stated that
she was 11 years old in August of 1994 when the rape occurred. At the time of the incident, she
attended Black Oak Elementary School and lived with her older brother, her younger sister, and her
mother and father in Hornbeak, Tennessee.

        J.L. said she became ill at school sometime in August 1994, and her father came and picked
her up. When they arrived home, the house was empty because her brother and sister were at school
and her mother was at work. J.L. said she changed into a T-shirt and shorts, put a videotape in the
VCR, and sat down on the couch. J.L. then testified as to what occurred as she and her father were
alone in the house:

               Q. Did you lay down [on the couch] at any point?

               A. Yes, sir.

               Q. Did you ever go to sleep?

               A. No, sir.

               Q. What did you do?

               A. I pretended to be asleep.

               Q. Now, why would you pretend to be asleep?

               A. Because my father was touching me.

               Q. This was after you laid down?

               A. Yes, sir. He had come in from outside, and I was watching the
                  movie, and he started touching me, and I pretended to be asleep.

               Q. What did you think that that would do if you pretended like you
                  were asleep?

               A. That he’d either stop, or he’d get finished and just leave me
                  alone.

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       The State then asked J.L. several questions concerning the extent of the defendant’s conduct
during the incident:

               Q. Where was [the defendant] touching you?

               A. My whole body. My vagina, my breasts.

               Q. Now, was this on top of your clothes, underneath your clothes,
                  or both?

               A. Both.

               Q. Okay. What was the next thing that he did?

               A. He penetrated my vagina with his finger.

               Q. Now, you had shorts on?

               A. Yes, sir.

               Q. How did he do this?

               A. He moved ‘em to the side.

               Q. You’re talking about the pants leg, or the tops, or what?

               A. The crotch part, he moved sideways.

               Q. Did he do anything else?

               A. Yes, sir.

               Q. What else did he do?

               A. He performed oral sex on me.

               Q. What do you mean by that, [J.L.]?

               A. He was kissing and messing with my vagina with his mouth.

               Q. During this entire period, did you remain pretending to be
                  asleep?

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               A. Yes, sir.

               Q. Did he stop on his own?

               A. Yes, sir.

        J.L. conceded that she gave her father a poem the preceding Christmas that described her love
for him. This poem was entered into evidence as an exhibit. She also said that she saw her father
and some other relatives at Wal-Mart a few weeks before trial. Her father approached her in the
store and asked her to give him a hug, which she did. She testified that she told her father that she
wished all of this was over. At trial, she said that what had happened was “very tragic” and that she
would always love her father.

         J.L. denied ever accusing another adult of molesting her. She acknowledged that there was
an incident at her grandmother’s house where she suddenly woke up and her grandmother’s
boyfriend was right in front of her, and it scared her. She said his presence made her feel
uncomfortable and that her grandmother had not been in the room when the incident happened. J.L.
said that everything she had testified to concerning her father’s actions was true. However, she said
she still loved her father “because every child loves their father no matter what they do.”

         Lola Mae Goodman testified that she is J.L.’s mother and had been previously married to the
defendant for seventeen years before they divorced in March of 1999. Goodman testified that she,
the defendant, their two daughters, and their son were living in Hornbeak in August of 1994. At that
time, she was employed at Superior Fireplace, and the defendant recently had been laid off from his
job and was about to begin working at Superior Fireplace. In August of 1994, Goodman noticed that
J.L. had started sleeping in sweat pants, despite the heat and the time of the year, and said that J.L.
had been sleeping in sweat pants ever since that time. Prior to August of 1994, J.L. had slept in a
gown. Goodman also noticed that J.L. became very concerned about her younger sister, N.L. In
fact, J.L. would not let N.L. go anywhere alone, even after J.L. got married. Goodman described
J.L.’s behavior toward N.L. as “[v]ery possessive . . . [p]ast protective.”

        Goodman testified that the defendant tried to stop paying child support for J.L. when J.L. got
married. Since Goodman could not afford to hire an attorney to take J.L. off child support, the
defendant continued to pay child support for J.L., as well as the other children. Goodman said she
regularly cashed the child support checks and gave half of the money back to the defendant. She
said that the court had instructed the defendant that he would have to pay child support for J.L. as
long as she was still in school.

       Lieutenant Rick Kelly of the Union City Police Department testified that he first became
involved in this case on May 23, 2000, when he questioned the defendant about J.L.’s allegations
of sexual abuse. Lieutenant Kelly and Officers Jackson and Whaley questioned the defendant at the
police department. The defendant was advised of his Miranda rights and signed a waiver of his


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rights before questioning began. Kelly said the defendant was not arrested at the time of questioning
and was told that he could leave at any time. Kelly testified regarding the defendant’s statement:

               Q. Tell us what [the defendant] told you.

               A. First, he denied any contact with [J.L.] in an inappropriate way,
                  and then he admitted to touching her breasts. He denied any
                  other contact. He then admitted that he touched her breasts and
                  fondled her with his fingers in her vagina area. Again denied
                  any other contact. He finally admitted that, yes, he did it, he
                  fondled her breasts, fondled her vagina with his fingers, and
                  performed oral sex on her.

After the defendant made this statement, Kelly and the other officers placed the defendant under
arrest.

        At the conclusion of the State’s proof, the State elected to rely upon the act of cunnilingus
for the charge of rape of a child.

       The defense called only one witness, Linda Crain, the defendant’s mother. Crain stated that
she was aware of the charge against her son, and identified the victim, J.L., as her granddaughter.
She said that J.L. had made allegations of sexual abuse against Crain’s ex-boyfriend:

               Q. Would you please tell the Court what happened?

               A. [J.L] was at my house one day, and my ex-boyfriend –

               Q. What was his name?

               A. Jerry Wayne Dilly.

               Q. Okay.

               A. And he come out of my bathroom, and she was laying on the
                  couch flat of her belly, and he come in – he was coming from the
                  bathroom, and the way my kitchen is, you come from the
                  bathroom into the kitchen, and I was standing there cooking
                  breakfast. Well, she didn’t say nothing until 9 o’clock that night,
                  after they left from my house, and she told her daddy at 9
                  o’clock that he had touched her, and which I was there and
                  didn’t nothing go on. I seen the man when he come out of the
                  bathroom into the kitchen.


                                                -5-
The State objected to Crain’s statements as hearsay, and the trial court sustained the objection. The
court instructed the jury, “You shall disregard the answer – or you should disregard the testimony
of Ms. Crain as to what her son told her [about J.L.’s accusation of sexual abuse against Crain’s ex-
boyfriend].” Thus, the only defense proof was testimony which the jury was instructed to disregard.

                                             ANALYSIS

                                    Sufficiency of the Evidence

       The only issue on appeal is the defendant’s claim that the evidence at trial was insufficient
to convict him of rape of a child. He argues that “the evidence fails to establish [his] guilt beyond
a reasonable doubt.” However, we respectfully disagree.

        Where sufficiency of the convicting evidence is challenged, the relevant question of the
reviewing 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 beyond
a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560,
573 (1979). See also State v. Pike, 978 S.W.2d 904, 914 (Tenn. 1998); Tenn. R. App. P. 13(e)
(“Findings of guilt in criminal actions whether by the trial court or jury shall be set aside if the
evidence is insufficient to support the findings by the trier of fact of guilt beyond a reasonable
doubt.”). This standard applies to convictions that are the result of direct evidence, circumstantial
evidence, or both. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).

        Jury verdicts in criminal cases are given considerable weight by the reviewing court. A
guilty verdict that is approved by the trial judge accredits the testimony of the State’s witnesses and
resolves all conflicts in favor of the theory of the State. State v. Bigbee, 885 S.W.2d 797, 803 (Tenn.
1994). Upon review, “the State is entitled to the strongest legitimate view of the evidence and all
reasonable inferences which might be drawn therefrom.” Id. (citing State v. Cabbage, 571 S.W.2d
832, 835 (Tenn. 1978)). All questions involving the credibility of witnesses, the weight and value
to be given the evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas,
754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). A guilty verdict removes the defendant’s initial
presumption of innocence and replaces it with a presumption of guilt, so that on appeal, a convicted
defendant has the burden of demonstrating that the evidence is insufficient. See State v. Grace, 493
S.W.2d 474, 476 (Tenn. 1973).

        The defendant was convicted of rape of a child, which 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) (1997). “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 or of any object into the genital or anal openings of the victim’s, the defendant’s,
or any other person’s body, but emission of semen is not required.” Tenn. Code Ann. § 39-13-
501(7) (1997).


                                                  -6-
        The victim, J.L., testified that the defendant touched her breasts, penetrated her vagina with
his finger, and performed oral sex on her. Lieutenant Kelly testified that the defendant admitted that
he had “fondled [the victim’s] vagina with his fingers, and performed oral sex on her.” The
defendant’s only witness was his mother whose testimony the jury was instructed to disregard.

       Considering the evidence in a light most favorable to the State, we conclude that a rational
jury could have easily found evidence of all the elements of rape of a child beyond a reasonable
doubt. Therefore, we conclude that the evidence against the defendant was sufficient to support his
conviction. However, we remand for entry of a corrected judgment because the conviction offense
was omitted from the judgment.

                                          CONCLUSION

         We conclude there was sufficient evidence to support the defendant’s conviction of rape of
a child. We affirm the judgment of the trial court but remand for entry of a corrected judgment to
reflect the defendant’s conviction offense.


                                                       ___________________________________
                                                       ALAN E. GLENN, JUDGE




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