        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs April 13, 2010

           STATE OF TENNESSEE v. JUSTIN DEWAYNE ROGERS

               Direct Appeal from the Circuit Court for Tipton County
                      No. 6159    Joseph H. Walker, III, Judge


              No. W2009-00982-CCA-R3-CD - Filed November 19, 2010


The defendant, Justin Dewayne Rogers, was convicted of rape of a child, a Class A felony,
and sentenced to twenty-five years in the Department of Correction. On appeal, he argues
that the evidence was insufficient and that the trial court erred in admitting the victim’s
medical records in violation of his right to confrontation. After careful review, we affirm the
judgment from the trial court.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which N ORMA M CG EE
O GLE and A LAN E. G LENN, JJ., joined.

Gary F. Antrican, District Public Defender, and Lyle A. Jones, Assistant Public Defender,
for the appellant, Justin Dewayne Rogers.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; and D. Michael Dunavant, District Attorney General, for the appellee, State of
Tennessee.

                                         OPINION


        The facts underlying this case involve the defendant leading the four-year-old victim
to the woods, where he bribed him with a pocket knife and broken cigarette lighter to take
down his pants before he anally penetrated him with his penis. The victim’s mother testified
that she was the girlfriend of the defendant’s father. She said that the defendant was visiting
them on the weekend of September 5, 2008, when he took the victim outside to play. When
the victim returned he began experiencing trouble with his bowels, characterized by an
inability to control his bowel movements. The victim also complained of pain in his “booty.”
       The victim was taken to the hospital in Covington, Tennessee and later referred to the
Memphis Sexual Assault Resource Center where he was interviewed and examined. The
victim told the nurse practitioner in Memphis that he had been anally penetrated, but his
examination revealed no findings to confirm or deny the anal penetration.

       A detective with the Tipton County Sheriff’s office interviewed the defendant on
September 11, 2008. The defendant waived his rights and made a statement. He told the
detective that he took the victim to the woods, bribed him to take down his pants, and anally
penetrated the child with his penis.

      The jury returned a verdict of guilty to the charge of rape of a child. This appeal
followed.

                                          Analysis

        The defendant raises two issues on appeal. First, he contends that the evidence was
insufficient to support his conviction for rape of a child. When an accused challenges the
sufficiency of the evidence, this court must review the record to determine if the evidence
adduced during the trial was sufficient “to support the finding by the trier of fact of guilt
beyond a reasonable doubt.” Tenn. R. App. P. 13(e). This rule is applicable to findings of
guilt predicated upon direct evidence, circumstantial evidence, or a combination of direct and
circumstantial evidence. State v. Brewer, 932 S.W.2d 1, 18 (Tenn. Crim. App. 1996).

       In determining the sufficiency of the evidence, this court does not reweigh or
reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Nor may this
court substitute its inferences for those drawn by the trier of fact from circumstantial
evidence. Liakas v. State, 199 Tenn. 298, 305, 286 S.W.2d 856, 859 (1956). To the contrary,
this court is required to afford the State the strongest legitimate view of the evidence
contained in the record as well as all reasonable and legitimate inferences which may be
drawn from the evidence. State v. Elkins, 102 S.W.3d 578, 581 (Tenn. 2003).

       The trier of fact, not this court, resolves questions concerning the credibility of the
witnesses, the weight and value to be given the evidence, as well as all factual issues raised
by the evidence. Id. In State v. Grace, the Tennessee Supreme Court stated that “[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.” 493 S.W.2d 474, 476
(Tenn. 1973).

       Because a verdict of guilt removes the presumption of innocence and replaces it with

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a presumption of guilt, the accused has the burden in this court of illustrating why the
evidence is insufficient to support the verdict returned by the trier of fact. State v. Tuggle,
639 S.W.2d 913, 914 (Tenn. 1982); Grace, 493 S.W.2d at 476.

        Tennessee Code Annotated section 39-13-522(a) defines the crime of rape of a child
as “the unlawful sexual penetration of a victim by the defendant . . . 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) (2008).
The evidence presented at trial reflected that the defendant was alone with the victim
immediately before the victim began to experience trouble controlling his bowel movements
and before he suffered rectal pain. In his statement to the Tipton County Sheriff’s
Department detective, the defendant admitted that he anally penetrated the victim after
bribing him with a glass cutter, a knife, and a broken lighter. The evidence is sufficient to
support the defendant’s conviction.

        Next, the defendant argues that the statements contained in the victim’s medical
records were testimonial in nature and their admission violated his right to confront
witnesses. Decisions concerning the admissibility of evidence are generally left to the
discretion of the trial court. When the admissibility of the evidence turns on the defendant’s
right to confront witnesses, the trial court’s decision is a legal question entitled to de novo
review on appeal. State v. Lewis, 235 S.W.3d 136, 141-42 (Tenn. 2007). The confrontation
clause in the Sixth Amendment to the U.S. Constitution and its counterpart in our state
constitution provide that a defendant in a criminal prosecution be given an opportunity to
confront the witnesses against him. Lewis, 235 S.W.3d at 144; U.S. Const. amend. VI; Tenn.
Const. art. I § 9. Tennessee decisions have followed the United States Supreme Court policy
adopted in Crawford v. Washington, 541 U.S. 36, 68 (2004), which holds that the
presentation of out-of-court witness statements, which are not testimonial in nature, do not
offend the confrontation clause. State v. Cannon, 254 S.W.3d 287, 302 (Tenn. 2008).

        The defendant seeks to exclude the medical records which contain statements by the
victim’s mother and the victim, given in response to medical personnel inquiries for
diagnosis and treatment of an emergent condition in a fully toilet-trained four-year-old and
his complaints of rectal pain following his anal penetration by the defendant. The hospital
record does not contain any direct statements by the victim, but the Memphis Sexual Assault
Resource Center records do contain some statements attributed to the victim. The trial court
admitted the records over the objection of the defendant during the testimony of the
custodian of the records. The custodian was allowed to testify as to the substance of the
medical record. The defendant objected that the records were hearsay within hearsay, and
the trial court determined that the statements were made for the purpose of obtaining medical
treatment and were, therefore. a hearsay exception. The records from the Memphis Sexual
Assault Resource Center were identified by the nurse practitioner who examined and

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interviewed the victim. She testified that, following her examination, she could neither
confirm nor deny that the victim was anally penetrated. The medical records demonstrate
that the victim’s mother told the nurse practitioner that the defendant asked to take the victim
outdoors, where the defendant penetrated the victim anally. The victim said that he told the
defendant to stop, but he did not. We conclude that the statements contained in the medical
records were given for the primary purpose of medical diagnosis and treatment and were not
testimonial; therefore, they were properly admitted.

                                          Conclusion

        Based on the foregoing and the record as a whole, we affirm the judgment from the
trial court.




                                                    _________________________________
                                                    JOHN EVERETT WILLIAMS, JUDGE




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