           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT NASHVILLE
                                  Assigned on Briefs August 18, 2010

                STATE OF TENNESSEE v. DEREK ALTON BADGER

                        Appeal from the Circuit Court for Bedford County
                              No. 16570     Robert Crigler, Judge




                     No. M2009-01295-CCA-R3-PC - Filed August 25, 2010


Following a jury trial, the Defendant, Derek Alton Badger, was convicted of one count of
aggravated sexual battery, a Class B felony. See Tenn. Code Ann. § 39-13-504(b). In this
appeal, he contends that the State presented evidence insufficient to convict him. After our
review, we affirm the judgment of the trial court.

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

D AVID H. W ELLES, J., delivered the opinion of the Court, in which N ORMA M CG EE O GLE and
R OBERT W. W EDEMEYER, JJ., joined.

Jack Dearing, Assistant Public Defender, (at trial); and Michael J. Collins, Assistant Public
Defender, Shelbyville, Tennessee, (on appeal) for the appellant, Derek Alton Badger.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant
Attorney General; Charles Crawford, District Attorney General; and Michael D. Randles,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                                      OPINION

                                   Factual Background
       During the Defendant’s trial, his sister, Cynthia Badger, testified that, in April 2008,
she and her three children lived at her mother’s house in Bedford County. Her step-father
Michael, her brother Daniel, and the Defendant also lived in the house at the time. On April
23, 2008, when Ms. Badger was giving her three-year-old daughter, C.F.,1 a bath, Ms. Badger


       1
           In order to protect the identity of minor victims of sexual abuse, it is the policy of this Court to refer to the
                                                                                                            (continued...)
began washing her daughter’s vaginal area. In response, her daughter said, “[D]on’t Mama,
it hurts.”

       Ms. Badger then asked her daughter a series of questions to determine why her vaginal
area hurt and whether anyone had touched her. She asked C.F. whether Ms. Badger’s step-
father Michael or her brother Danny touched her, but C.F. said that neither had. Ms. Badger
then asked whether the Defendant had touched C.F., and C.F. responded affirmatively. Ms.
Badger testified that C.F. told her that the Defendant touched C.F. with his finger. When she
asked her daughter where the Defendant touched her, C.F. pointed to the area between her
legs where her vagina was located.

        After hearing this, Ms. Badger called the father of her three children, Timothy
Finchum, and relayed the information to him. The next morning, April 24, 2008, he picked
up the children and took them to his parents’ house. That evening, Mr. Finchum took C.F.
to the hospital for an examination. He testified that someone from the hospital contacted the
Bedford County Sheriff’s Department and that he spoke with Detective Captain Rebecca
Hord and agreed to bring C.F. to meet with her the next morning.

         Detective Captain Hord met with C.F. on April 25, 2008, while her father waited in
another room. During the interview, Detective Captain Hord showed C.F. a diagram of a
little girl and asked C.F. what she called various body parts. Detective Captain Hord testified
that C.F. called the diagram’s vaginal area a “wee wee.”

       On April 28, 2008, Detective Captain Hord met with the Defendant. She stated that
she read the Defendant his Miranda2 rights, that he appeared to understand them, and that he
agreed to waive his rights and speak with her. During the Defendant’s initial meeting with
Detective Captain Hord, he denied the allegation that he touched C.F.’s vagina. He did,
however, provide several possible explanations for why C.F. accused him of touching her,
including accusing her father, her brother,3 and a toy dinosaur.

       On May 8, 2008, the Defendant met with Detective Captain Hord again; however, this
time she was assisted by Tennessee Bureau of Investigation Special Agent Michael Smith.
Special Agent Smith testified that he read the Defendant his Miranda rights and that the


         1
              (...continued)
victims by their initials.


          2
              See Miranda v. Arizona, 384 U.S. 436 (1966).
         3
               C.F. has only one brother; he was seven years old at the time of the trial.

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Defendant acknowledged and waived his rights. Initially, the Defendant repeated his denials
and said the allegations were false. During this interview, he speculated that C.F.’s brother
could have touched C.F. and also claimed that the Defendant’s mother once caught the young
boy with his hands down C.F.’s pants. Special Agent Smith also recalled that the Defendant
said C.F. was “articulate and has an imagination” and suggested that “she dreamed he
touched her down there.”

      After continued questioning, estimated by Detective Captain Hord as lasting less than
an hour, Special Agent Smith told the Defendant that he did not believe his answers were
truthful. The Defendant subsequently confessed to touching the outside of C.F.’s vagina,
under her clothing, for approximately three to five seconds while they were horse playing and
wrestling. He also told them that C.F.’s brother had left the room and that the Defendant and
C.F. were alone when he touched her. He never claimed that touching C.F. was an accident.
After his confession, the Defendant wrote the following statement:

       On the day of 08 April 12 or the 5 I was watching the kids after school in the
       evening. [C.F.] was watching TV and me, [C.F.’s brother] and [C.F] was
       horseplaying and I touch her on the outside of her vagina for 3 to 5 sec (on the
       inside of her panties) and then I realized what I was doing and stop and ran out
       side a smoke me a cigarette and started crying and told myself it will never
       ever happen again and will corroperate and go to counciling. And I also
       thought suicide.

(emphasis in original).

        Discussing the circumstances surrounding the Defendant’s confession, Detective
Captain Hord stated that she and Special Agent Smith were pleasant toward the Defendant
and that the Defendant was pleasant toward them. She also testified that the Defendant’s
statement was freely given and not forced by either herself or Special Agent Smith. Special
Agent Smith testified that the Defendant had a “very good rapport” with them and that
neither he nor Detective Captain Hord yelled or raised their voice when they interviewed the
Defendant on May 8, 2008. Both Special Agent Smith and Detective Captain Hord stated
that they did not make any promises to the Defendant in exchange for his confession. After
the Defendant confessed, he said that he felt relieved, and Special Agent Smith testified that
the Defendant “relaxed tremendously” after giving his confession.

       C.F., four years old at the Defendant’s trial, testified that she understood the
difference between the truth and a lie and explained, “If you lie you get in trouble.” C.F. and
the Assistant District Attorney then had the following exchange:



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       [Assistant District Attorney]: All right. Now, let me ask you, do you have a part of
       your body that’s called a wee wee?
       [C.F.]: Uncle Derek touched it with his finger.
       [Assistant District Attorney]: Uncle Derek touched your wee wee with his finger?
       [C.F.]: Yes.

The Assistant District Attorney then asked C.F. to point to the part of her body that she
referred to as her “wee wee,” and she pointed between her legs. On cross-examination, she
explained that when the Defendant touched her, she was on the floor in the living room
watching TV. She recalled that, at the time, no one else was in the living room with her
besides the Defendant. She stated that her grandmother was in her bedroom watching a
movie and that her Uncle Danny was in his room playing a game.

         The Defendant’s mother, Barbara Thornberry, testified as a defense witness. She
stated that she was the children’s primary babysitter and that she never saw the Defendant
touch C.F. inappropriately. She asserted that her granddaughter’s allegations were
impossible because she was always around and would have known about it if the Defendant
had touched C.F. Ms. Thornberry claimed that the only time she left her house in the entire
month of April 2008 was on April 28th, the day her son was first questioned by the police.
She did admit, however, that she would sometimes watch TV in her bedroom, but said that
from her bedroom she had a partial view of the living room and could keep an eye on the
children. Ms. Thornberry also testified that she believed C.F. would have told her if she was
hurt and that C.F. never said anything to her about the Defendant touching her
inappropriately.

        On cross-examination, Ms. Thornberry said she had never seen the Defendant wrestle
with the children, but she said it was possible that she missed it and “might have been doing
laundry or in the kitchen.” However, she still maintained that she would have known if the
Defendant stuck his finger inside her granddaughter’s panties. Ms. Thornberry also
acknowledged that she has been charged with coercing a witness and was presently accused
of trying to get Ms. Badger to lie about where she and her children lived in April 2008.

       The Defendant also testified during his trial. He stated that he had never been alone
with C.K. and denied the allegations that he touched her inappropriately. Regarding his
interview with Detective Captain Hord on April 28, 2008, the Defendant stated that she was
pleasant with him and treated him with respect. He also stated that he did not feel stressed
out during the initial interview. He acknowledged speculating that C.F. injured herself
playing with a toy and that C.F.’s brother might have touched her. He claimed that his step-
father once caught C.F.’s brother with his hand down the front of C.F.’s pants.



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       The Defendant testified that during the interview on May 8, 2008, Special Agent
Smith and Detective Captain Hord treated him respectfully and did not raise their voices at
him. However, when asked why he confessed to something he did not do, he explained in
part, “Well, I have been under a lot of stress ever since, you know, I was hurt, I was being
accused of this. I have been under a lot of stress and I don’t do well under pressure. I am
most likely to be somebody who follows somebody.” On cross-examination, the Defendant
blamed stress, anxiety, bipolar disorder, adult ADD, and asthma for his confession.

        When asked what made him so stressed out that he confessed to a crime he did not
commit, he said, “The stress came from when I kept telling them I didn’t do it. They kept
telling me I was lying.” He elaborated:

       I figured I would get help. The way I look at it is this. Okay. This is what I
       wanted. If I have done something so bad, that is what I told them, if you have
       done something so bad and you have no acknowledge [sic] of doing it, then
       that means there is something wrong in your head. Get help. Get me this help
       I need.

The Defendant said, “They convinced me that I did it,” when asked why he needed help if
he did not do anything wrong. Regarding the other details in his written statement and
confession, such as the wrestling and horseplay, smoking a cigarette, and crying, the
Defendant said he made them up: “I had to lie, because I can’t sit there and tell a story that
didn’t happen.”

      On January 29, 2009, a Bedford County jury convicted the Defendant of one count of
aggravated sexual battery. He now appeals.

                                              Analysis
        The only issue that the Defendant asserts on appeal is that the State presented
evidence insufficient to convict him of aggravated sexual battery. Tennessee Rule of
Appellate Procedure 13(e) prescribes that “[f]indings 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.” A convicted criminal defendant who
challenges the sufficiency of the evidence on appeal bears the burden of demonstrating why
the evidence is insufficient to support the verdict, because a verdict of guilt destroys the
presumption of innocence and imposes a presumption of guilt. See State v. Evans, 108
S.W.3d 231, 237 (Tenn. 2003); State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000);
State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). This Court must reject a convicted
criminal defendant’s challenge to the sufficiency of the evidence if, after considering the
evidence in a light most favorable to the prosecution, we determine that any rational trier of

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fact could have found the essential elements of the crime beyond a reasonable doubt. See
Jackson v. Virginia, 443 U.S. 307, 319 (1979); State v. Hall, 8 S.W.3d 593, 599 (Tenn.
1999).

        On appeal, the State is entitled to the strongest legitimate view of the evidence and all
reasonable and legitimate inferences which may be drawn therefrom. See Carruthers, 35
S.W.3d at 558; Hall, 8 S.W.3d at 599. A guilty verdict by the trier of fact accredits the
testimony of the State’s witnesses and resolves all conflicts in the evidence in favor of the
prosecution’s theory. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). Questions
about the credibility of 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, and this Court will not re-weigh
or re-evaluate the evidence. See Evans, 108 S.W.3d at 236; Bland, 958 S.W.2d at 659. Nor
will this Court substitute its own inferences drawn from circumstantial evidence for those
drawn by the trier of fact. See Evans, 108 S.W.3d at 236-37; Carruthers, 35 S.W.3d at 557.

        “Aggravated sexual battery is unlawful sexual contact with a victim by the defendant
or the defendant by a victim accompanied by any of the following circumstances . . . (4) The
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 genital area. Tenn. Code Ann. §
39-13-501(2), (6).

        The State presented testimony from Ms. Badger that C.F., three years old in April
2008, stated that the Defendant touched her vaginal area with his finger. Furthermore, C.F.
testified, even without being prompted by a leading question, that the Defendant touched her
“wee wee” with his finger. Detective Captain Hord testified that, when she showed C.F. a
diagram of a young girl, C.F. called the vaginal area a “wee wee.” C.F. gave detailed
testimony regarding where she was, and also where other members of the household were,
at the time the Defendant touched her inappropriately. During his second interview with
police, and after waiving his Miranda rights, the Defendant gave both an oral confession and
a written statement admitting that he touched the outside of C.F.’s vagina underneath her
panties. Special Agent Smith and Detective Captain Hord both testified that, during the
interview that led up to the Defendant’s confession, they were respectful, did not raise their
voice at him, coerce his confession, or make any promises in exchange for his confession.


                                       Conclusion
       We conclude that the State presented sufficient evidence for a rational trier of fact to
find the essential elements of aggravated sexual battery beyond a reasonable doubt. This
issue has no merit. The judgment of the trial court is affirmed.



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      _________________________________
      DAVID H. WELLES, JUDGE




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