           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT JACKSON
                                  Assigned on Briefs November 7, 2006

                            STATE OF TENNESSEE v. ERIC MAXIE

                           Appeal from the Criminal Court for Shelby County
                                  No. 05-00820   Chris Craft, Judge



                        No. W2006-00604-CCA-R3-CD - Filed March 26, 2007


Indicted for rape of a child, the defendant, Eric Maxie, was convicted by a Shelby County Criminal
Court jury of aggravated sexual battery. He appeals and challenges the sufficiency of the convicting
evidence. Because the record supports the jury’s verdict, we affirm the conviction.

                  Tenn. R. App. P. 3; Judgment of the Criminal Court is Affirmed.

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which JERRY L. SMITH and
ROBERT W. WEDEMEYER , JJ., joined.

Robert Wilson Jones, District Public Defender; and Trent Hall and Tony N. Brayton, Assistant
District Public Defenders, for the Appellant, Eric Maxie.

Robert E. Cooper, Jr., Attorney General & Reporter; David H. Findley, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Vanessa King, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                                        OPINION

                 Tosca Moore testified that she allowed A.B.,1 the victim, age eight, and her mother
to live with her in her townhouse for a few weeks starting in December 20032 due to A.B’s mother’s
financial problems. She testified that because of limited space, A.B. shared a bedroom and a bed
with her daughter, age seven. One night when A.B.’s mother was out, Ms. Moore put the children
to bed. After some time, she heard the girls whispering, and she entered the bedroom, intending to
make them go to sleep. She testified that the blankets were pulled up to the girls’ necks, which was
unusual for her daughter. When she adjusted the blankets, she noticed that the girls had their



       1
           It is the policy of this court to refer to victims of sexual abuse by their initials.

       2
           She testified, “December 2004,” but all other testimony indicates December 2003.
nightgowns pulled up to their necks and were not wearing panties. She explained that her daughter
always sleeps in her panties.

                  Ms. Moore sent her daughter to her room and instructed A.B. to go to sleep. She
waited an hour before questioning her daughter. She then spoke with her sister, who also lived with
her, seeking advice on when and how to talk to A.B.’s mother. Ms. Moore decided to talk to A.B.’s
mother the next evening. She told A.B.’s mother to determine how the victim learned the behavior
because, in her experience, “children didn’t just think up those actions, that they’re usually shown
to . . . children.”

                On cross-examination, Ms. Moore explained that the girls did not share a bedroom
after the incident. She further explained that she waited until the next evening to talk to A.B.’s
mother, taking time to process the situation and making sure that she “took the proper steps and that
[she] really understood [the situation] and wasn’t blowing it out of proportion.”

               A.B.’s mother testified that after Ms. Moore reported the behavior, she questioned
A.B., and as a result of A.B.’s answers, she contacted A.B.’s father. She then took A.B. to the
Memphis Police Department East Precinct and filed a complaint against the defendant, who she had
dated from November 2001 to April 2003, when they amicably parted ways. There she was told to
take her daughter to the Memphis Sexual Assault Resource Center (MSARC) for a physical exam
and to the Child Advocacy Center to give a statement. Sometime after taking A.B. to MSARC,
A.B.’s mother confronted the defendant. A.B.’s mother further testified that over one year later, the
authorities contacted her regarding the case. She testified that at the time of trial, A.B. was
emotionally stable and a “B/C student.”

                On cross-examination, A.B.’s mother testified that she went to the police department
around the first of December approximately two or three days after her discussion with A.B. She
neither recalled with whom she spoke nor whether the interview was taped. She did not take A.B.
to MSARC and Child Advocacy Center until the middle of January because A.B.’s father, who lived
out of state, had already made arrangements for A.B. to visit him during the Christmas Holidays.
A.B.’s mother testified that approximately one year later law enforcement officers knocked on her
door looking for the defendant, and she was confused about why they were looking for him at her
new address.

                A.B. testified that she was born on January 5, 1996, and she remembered getting in
trouble the night Ms. Moore separated her from Ms. Moore’s daughter. When her mother talked to
her about this incident, A.B. told her that she learned the behavior from the defendant. She testified
that the defendant lived with her mother in Memphis at an apartment.

                 A.B. testified that one morning when her mother was at work, A.B. entered her
mother’s bedroom to watch television. She testified that the defendant was in the bedroom wearing
a t-shirt and underwear. He instructed A.B. to disrobe, and she refused. After he said that he would
do it for her, she complied, removing her “footy pajama[s].” She testified that the defendant then


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went to the bathroom, removed his underwear, and that he then “put his private in mine” while they
were lying on the bed. She testified that the defendant also touched her buttocks with his hands and
mouth, her mouth with his lips and tongue, and her vaginal area with his hands, mouth, and penis.

                A.B. stated that she refers to male genitalia as “nuts” or “private” and that she also
knows what a penis is. She described the defendant’s penis as being round, at least two and one-half
inches long, and round on the top. A.B. testified that she was referring to the defendant’s penis when
she said “his private.” She stated that her “private” was her vagina and that the defendant put his
private not on the outside of the vagina where the skin is but “inside.” A.B. testified that she asked
the defendant to stop and cried. She further explained, “It felt like somebody was just taking a knife
and stabbing me with it for no reason.” A.B. testified that she did not tell her mother because the
defendant said “that he would take a knife or a gun and kill [her and her mother].” She also testified
that this happened more than once, but she did not remember how many times.

                On cross-examination, A.B. testified that the abuse occurred during the time period
when the defendant lived with her mother. She testified that, during this time period, she visited her
father out of state, attended school, and went to church. A.B. did not tell anyone of the abuse until
Ms. Moore caught her and her friend in bed. A.B. testified that she went to the police and to the
doctor after she told her mother.

                 Memphis Police Department Sergeant Bridgett White, a member of the sex crimes
and child abuse unit, testified that she was assigned to the defendant’s case in December 2003, along
with the Department of Children’s Services (DCS). She testified that DCS obtains the victim’s
statement, and she is responsible for obtaining the defendant’s statement if possible. Sergeant White
testified that the DCS investigator scheduled A.B.’s forensic interview. After the interview, the
results were relayed to her, and she attempted to contact the defendant via two different certified
letters. Once the letters were returned to her with no reply, Sergeant White contacted the Attorney
General’s office, seeking an indictment.

                 Rochelle Copeland, a forensic nurse practitioner and coordinator of MSARC, testified
that A.B. was physically examined at MSARC by Anita Boykins, another forensic nurse practitioner,
who no longer worked at MSARC. She testified that standard procedure requires a report on each
patient, and Ms. Boykins prepared such a report for A.B. Ms. Copeland explained that the results
of the physical exam showed a chronic injury to A.B.’s hymen. She explained that “[c]hronic means
an injury that [has] healed. It [is not] an injury [that occurred] over and over.” She further testified
that this injury was classified as a “2-B,” meaning a nonspecific injury. Ms. Copeland explained that
an injury is classified as “nonspecific” either because of the injury’s location or some other medical
condition, such as infection.

                On cross-examination, Ms. Copeland testified that at the time of the exam, A.B. was
eight years old. She explained that a classification of “3-A” or “3-B” would indicate actual
penetration of the vaginal vault, not necessarily the labia or the hymenal area. She testified that no
follow-up treatment was recommended.


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                 On redirect examination, she testified that when classifying an injury, penetration is
considered penetration of the vaginal vault. A.B.’s classification of “2-B” does not necessarily mean
that it is inconsistent with penetration of the labia.

                 After Ms. Copeland’s testimony, the State rested its case, and the defendant presented
no proof. The State elected to prove the indicted offense of rape of a child by actual penetration by
the defendant of A.B.’s vagina. See T.C.A. § 39-13-503(a) (2006) (establishing penetration as an
element of rape); see also id. § 39-13-522 (increasing felony classification of rape offense when the
victim is less than 13 years of age). Although the jury acquitted him of rape of a child, the defendant
is vexed that the jury accredited the victim’s testimony to the extent that it found an assault equating
to aggravated sexual battery. Thus, on appeal, he challenges the sufficiency of the convicting
evidence.

                When an accused challenges the sufficiency of the evidence, an appellate court’s
standard of review is whether, after considering 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. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 324, 99 S. Ct. 2781,
2791-92 (1979); State v. Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003). The rule applies
to findings of guilt based upon direct evidence, circumstantial evidence, or a combination of direct
and circumstantial evidence. Winters, 137 S.W.3d at 654.

                In determining the sufficiency of the evidence, this court should neither re-weigh the
evidence nor substitute its inferences for those drawn by the trier of fact. Winters, 137 S.W.3d at
655. 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. Cabbage,
571 S.W.2d 832, 835 (Tenn. 1978). Significantly, this court must afford the State of Tennessee 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. Id. at 835.

                “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: . . . The victim is
less than thirteen (13) years of age.” T.C.A. § 39-13-504(a)(4) (2006). Aggravated sexual battery
is a Class B felony. Id. § 39-13-504(b).

               “Sexual contact” includes the intentional touching of the victim’s, the
               defendant’s, or any other person’s intimate parts, or the intentional
               touching of the clothing covering the immediate area of the victim’s,
               the defendant’s, or any other person’s intimate parts, if that
               intentional touching can be reasonably construed as being for the
               purpose of sexual arousal or gratification.

Id. § 39-13-501(6).



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                On appeal, the defendant in essence complains that the evidence is insufficient
because the State offered no physical proof of assault other than A.B.’s testimony, which the
defendant claims was discredited by Ms. Copeland’s testimony. A.B.’s testimony, if believed, was
direct evidence of assault corroborated by the physical examination’s finding. In reviewing the
sufficiency of the convicting evidence, we neither resolve credibility issues, make inferences, nor
usurp the jury’s factual determinations. Our role is to determine whether the evidence, in the light
most favorable to the State, factually establishes the elements of the conviction offense. The
evidence showed that A.B. was less than 13 years of age at the time of the assault and that the
defendant touched A.B.’s vagina with his penis for sexual arousal or gratification. Therefore, the
jury could have found the essential elements of aggravated sexual battery beyond a reasonable doubt.
See Tenn. R. App. P. 13(e); Jackson, 443 U.S. at 324, 99 S. Ct. at 2791-92; Winters, 137 S.W.3d at
654; see also State v. Charles Brandon Hanner, No. M2005-01944-CCA-R3-CD, slip op. at 4 (Tenn.
Crim. App., Nashville, June 8, 2006) (holding the evidence sufficient to prove aggravated sexual
battery when jury rejected victim’s testimony of penetration but accredited testimony of sexual
contact).

                For the foregoing reasons, we find the evidence sufficient and affirm the judgment
of the trial court.


                                                      ___________________________________
                                                      JAMES CURWOOD WITT, JR., JUDGE




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