        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs August 12, 2015

          STATE OF TENNESSEE v. STEVEN DARRELL LITTLE

                Appeal from the Criminal Court for Davidson County
                    No. 2013-C-2565     Monte Watkins, Judge




             No. M2014-01927-CCA-R3-CD – Filed September 28, 2015


A Davidson County judge convicted the Defendant, Steven Darrell Little, of one count of
indecent exposure and sentenced him to six months of probation and ordered a $500 fine.
On appeal, the Defendant contends that the evidence is insufficient to sustain his
conviction. After review, we conclude that there is no error, and we affirm the trial
court’s judgment.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which NORMA
MCGEE OGLE and CAMILLE R. MCMULLEN, JJ. joined.

Elaine Heard, Nashville, Tennessee, for the appellant, Steven Darrell Little.

Herbert H. Slatery III, Attorney General and Reporter; Ahmed A. Safeeullah, Assistant
Attorney General; Glenn Funk, District Attorney General; and Nathan McGregor,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION
                                         I. Facts

        This case arises from interactions between the Defendant and a ten-year old girl.
With regard to his actions, a Davidson County grand jury indicted the Defendant for three
counts of indecent exposure. At a bench trial on these charges, the following evidence
was presented: Robert Eggers testified that on September 22, 2012, he was at a Michael’s
craft store located in the 100 Oaks Mall in Davidson County. He recalled that it was late
afternoon or early evening and that he was accompanied by his ten-year-old twin
daughters.
       Mr. Eggers testified that he was next to one of his daughters in an aisle inside the
store and that his other daughter was at the end of the same aisle. Mr. Eggers noticed the
Defendant, who was in an electronic wheelchair, stopped at the “end counter” facing
where his daughter was standing in the aisle. Mr. Eggers noted that the Defendant was
facing his daughter’s backside. Mr. Eggers asked his daughter to come toward him, and
the Defendant left. Mr. Eggers said that he went back to the end of the aisle, and the
Defendant returned and was again aimed right at his daughter’s backside. Mr. Eggers
instructed his other daughter to remain where she was and he went down around the aisle
and approached the Defendant from behind. He saw that the Defendant had his hand
under a blanket and down his pants and was rubbing himself while staring at Mr.
Eggers’s daughter. Mr. Eggers saw the Defendant’s penis in the Defendant’s hand.

      Mr. Eggers said he was surprised, and he asked the Defendant if he had something
“he wanted to share with [him].” The Defendant responded “no,” and Mr. Eggers told
the Defendant that he needed to “get moving.” Mr. Eggers was shortly thereafter
approached by two store employees who asked him if he had seen what the Defendant
had done.

        Mr. Eggers asked the store employees to stay with his daughters, and he followed
the Defendant around the store. He saw the Defendant following other young females.
Mr. Eggers again approached the Defendant and told him that he needed to leave the
store because Mr. Eggers had called the police. Mr. Eggers had, in fact, contacted police,
who dispatched officers from the Vanderbilt Police Department. Mr. Eggers gave the
officers a statement. Mr. Eggers saw the Defendant speaking with police as Mr. Eggers
left the store with his daughters.

       During cross-examination, Mr. Eggers explained that, when he approached the
Defendant from behind, he could clearly see the Defendant stroking his penis. While
doing this, the Defendant was staring right at Mr. Egger’s daughters who were standing
nearby.

        Linda Jennings, a Vanderbilt Police Department officer, testified that she
responded to this call. When she arrived, she saw a man in a wheelchair, with a blanket
on his lap, exiting the store. She noted that he had not made any purchases at the store.
Officer Jennings informed the Defendant of why she was at the store and asked him for
identification. The Defendant provided her with an identification card, and she asked
him to wait while she spoke with Mr. Eggers. After getting Mr. Eggers’s statement, she
asked the Defendant about the incident. The Defendant informed her that he was “just
warming his hands, that he had a circulation problem.” The Defendant explained to her

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that he was a registered sex offender and said he had been “falsely accused of
photographing an eleven year old female.”

       Officer Jennings testified that she issued the Defendant a misdemeanor citation for
public indecency. She then saw the Defendant take a pair of dark blue gloves from his
wheelchair and place them on his hands. She recalled that it was a “very warm” and
humid day in late September and that the sun was shining into the front of the store. The
call about the Defendant’s behavior came in at about 4:53 p.m. Officer Jennings
attempted to obtain a video surveillance from the Michael’s store, but the surveillance
cameras did not record the incident.

       The Defendant testified that he had been paralyzed from the chest down for thirty-
one years as a result of a motorcycle accident. He said that he had no ability to have an
erection. He had not had an erection, he said, since the accident. The Defendant said that
he frequently had urinary tract issues and had to change his catheter frequently. The
Defendant also testified that he often got cold and that he would place his hands in the
bottom of his shirt to keep his hands warm.

       He said that he was at Michael’s on the day in question purchasing Christmas
cards for a friend. He said that he was getting envelopes and that he needed a price on a
“Paint-By-Number[]” item. The Defendant explained that his friend’s birthday was in
December and that, as her gift, he handmade Christmas cards for her to give to her
friends and family. The Defendant said that the temperature that day was in the eighties
but that the store was “ice cold.” He said that he was in the same aisle as Mr. Eggers and
his two daughters “[p]atiently waiting” for them to get out of the way so that he could
find the price for the item that he wanted to purchase.

       The Defendant said that Mr. Eggers was “ignoring” his daughters and using his
cell phone. He said that, while he was waiting for the Eggers to move, three female
employees, each of whom was wearing a jacket, went by and asked him if he needed
help. He told them, “no” but inquired as to why it was so cold in the store. The
employees told him that their thermostat was controlled by a computer at “corporate,” so
they could not change the temperature. The Defendant said that his conversation with the
employees seemingly got Mr. Eggers’s attention. He looked toward the Defendant, who
looked back judgmentally based upon Mr. Eggers ignoring his daughters. The Defendant
said Mr. Eggers “threw his hands up on his hips” and looked at him indignantly like what
he was doing was none of the Defendant’s business. He then said to his daughters “Let’s
go, girls.” The daughters protested, but he insisted that they leave. The Defendant said
that Mr. Eggers never walked up behind him.


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       During cross-examination, the Defendant testified that, after he got the price of the
items he needed, he went outside to warm up a little before making a purchase. He
maintained that he never followed Mr. Eggers’s daughters or any other girls. The
Defendant denied that he had a blanket with him that day, saying that it was eighty
degrees outside. The Defendant said that he had forgotten that he had a pair of gloves
with him, but, after speaking with the officer, he recalled the gloves were in his
backpack. He took them out and put them on after speaking with her. The Defendant
restated that he did not have any sexual desire and did not get erections. He then agreed
that he had been convicted, since being paralyzed, of aggravated sexual exploitation of a
minor. The Defendant opined that the only reason that Mr. Eggers came forward against
him was not because he saw the Defendant’s penis, from which he would have seen a
catheter protruding, but because the Defendant looked at him judgmentally.

      Based upon this evidence, the trial court found the Defendant guilty of indecent
exposure, a Class B misdemeanor, and sentenced him to six months of probation and
imposed a $500 fine.

                                       II. Analysis

       On appeal, the Defendant contends that the evidence is insufficient to sustain his
conviction because the State did not prove the necessary elements of indecent exposure.
Specifically, he contends that the State did not prove that the touching could be
reasonably construed as being for the purpose of sexual arousal or gratification or that the
Defendant reasonably expected the alleged act or acts to be viewed by another.
Therefore, he asserts, his conviction cannot stand. The State counters that the
Defendant’s contention is meritless based upon the testimony of the witnesses at trial.

       When an accused challenges the sufficiency of the evidence, this Court’s standard
of review is whether, after considering 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); see Tenn. R.
App. P. 13(e), State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid,
91 S.W.3d 247, 276 (Tenn. 2002)). This rule applies to findings of guilt based upon
direct evidence, circumstantial evidence, or a combination of both direct and
circumstantial evidence. State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App.
1999). In the absence of direct evidence, a criminal offense may be established
exclusively by circumstantial evidence. Duchac v. State, 505 S.W.2d 237, 241 (Tenn.
1973). The jury decides the weight to be given to circumstantial evidence, and “[t]he
inferences to be drawn from such evidence, and the extent to which the circumstances are
consistent with guilt and inconsistent with innocence, are questions primarily for the
jury.” State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (citations omitted). “The
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standard of review [for sufficiency of the evidence] is the same whether the conviction is
based upon direct or circumstantial evidence.” State v. Dorantes, 331 S.W.3d 370, 379
(Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).

        In determining the sufficiency of the evidence, this Court should not re-weigh or
reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App.
1990). Nor may this Court substitute its inferences for those drawn by the trier of fact
from the evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999); Liakas v. State,
286 S.W.2d 856, 859 (Tenn. 1956). “Questions concerning the credibility of the
witnesses, the weight and value of the evidence, as well as all factual issues raised by the
evidence are resolved by the trier of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn.
1997); Liakas, 286 S.W.2d at 859. “A guilty verdict by the jury, approved by the trial
judge, accredits the testimony of the witnesses for the State and resolves all conflicts in
favor of the theory of the State.” State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978);
State v. Grace, 493 S.W.2d 474, 479 (Tenn. 1973). The Tennessee Supreme Court stated
the rationale for this rule:

              This well-settled rule rests on a sound foundation. The trial judge
       and the jury see the witnesses face to face, hear their testimony and observe
       their demeanor on the stand. Thus the trial judge and jury are the primary
       instrumentality of justice to determine the weight and credibility to be
       given to the testimony of witnesses. In the trial forum alone is there human
       atmosphere and the totality of the evidence cannot be reproduced with a
       written record in this Court.

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1996) (citing Carroll v. State, 370 S.W.2d
523 (Tenn. 1963)). This Court must afford the State of Tennessee the strongest
legitimate view of the evidence contained in the record, as well as all reasonable
inferences which may be drawn from the evidence. Goodwin, 143 S .W.3d at 775 (citing
State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). Because a verdict of guilt against a
defendant removes the presumption of innocence and raises a presumption of guilt, the
convicted criminal defendant bears the burden of showing that the evidence was legally
insufficient to sustain a guilty verdict. State v. Carruthers, 35 S.W.3d 516, 557-58
(Tenn. 2000).

      In this case, the Defendant was convicted of indecent exposure. According to
Tennessee Code Annotated section 39-13-511 (2014):

       (a)(1) A person commits the offense of indecent exposure who:


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       (A) In a public place, as defined in § 39-11-106, or on the private premises
       of another, or so near thereto as to be seen from the private premises:

              (i) Intentionally:

              (a) Exposes the person’s genitals or buttocks to another; or

              (b) Engages in sexual contact or sexual penetration as defined in §
              39-13-501; and

              (ii) Reasonably expects that the acts will be viewed by another and
              the acts:

              (a) Will offend an ordinary viewer; or

              (b) Are for the purpose of sexual arousal and gratification of the
              defendant;

       The evidence, viewed in the light most favorable to the State, proved that Mr.
Eggers saw the Defendant, seated in a wheelchair, in the aisle of a Michael’s store with
his hands in his lap under a blanket while looking at Mr. Eggers’s daughter’s buttocks.
Mr. Eggers went around the aisle to approach the Defendant from behind his wheelchair.
When he did so, he saw the Defendant, who was seated in front of him in the wheelchair,
rubbing his penis with his hand while looking at Mr. Eggers’s daughter. Mr. Eggers told
the Defendant to move along, and then, after securing the supervision of his daughters
with Michael’s employees, Mr. Eggers followed the Defendant. He saw the Defendant
following several other young females in the store while rubbing his penis under the
blanket. After being informed that the authorities had been called, the Defendant left the
store without purchasing anything. Officer Jennings said that she saw the Defendant with
a blanket on his lap, and when she inquired about the incident, the Defendant told her that
he had poor circulation and was cold, so he put his hands in his lap where it was warm.
The Defendant denied the ability to get or maintain an erection, and he said he did not
have a blanket with him on that warm day in September.

        The Defendant specifically contends that the State provided no proof that his
actions constituted “sexual contact” in that they were for the purpose of his sexual arousal
or gratification. “Sexual contact” is defined as the:

       Intentional touching of . . . the defendant’s . . . intimate parts, or the
       intentional touching of the clothing covering the immediate area of . . . the

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      defendant’s . . . intimate parts, if that intentional touching can be reasonably
      construed as being for the purpose of sexual arousal or gratification.

T.C.A. § 39-13-501 (2014). The Defendant calls into question whether Mr. Eggers
actually saw the Defendant’s penis at all, and he further maintains that he is physically
incapable of having an erection. The trial court clearly credited Mr. Eggers’s account of
the events. The Defendant’s ability to have an erection is not an element of the offense.
The trier of fact can draw on common knowledge and experience to determine that a man
fondling his own penis while staring at a young girl’s buttocks was doing so for sexual
arousal or gratification. See e.g., State v. Jack Warren Emert, Jr., No. 03C01-9802-CC-
00074, 1999 WL 512029, at *2 (Tenn. Crim. App., Knoxville, Jul. 21, 1999) (citing State
v. Meeks, 876 S.W.2d 121, 131 (Tenn. Crim. App. 1993) (determining that a jury can
draw on common knowledge and experience to ascertain if the defendant touched the
victim for sexual arousal or gratification)), no Tenn. R. App. P. 11 application filed.

        The Defendant next asserts that the prosecution failed to meet its burden of proof
that the Defendant “reasonably expected the alleged act or acts to be viewed by another.”
We cannot agree. A man, rubbing his penis in a public store while at least three people,
two of whom are minor girls, are within close proximity can reasonably expect that his
act will be viewed by another. This argument is without merit.

      We conclude that the trial court did not err when it found that the State had proven
each of the elements of indecent exposure. The evidence is sufficient to sustain the
Defendant’s conviction, and he is not entitled to relief on this issue.

                                     III. Conclusion

        In accordance with the aforementioned reasoning and authorities, we affirm the
trial court’s judgment.

                                                 _________________________________
                                                 ROBERT W. WEDEMEYER, JUDGE




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