            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE
                                 Assigned on Briefs October 25, 2005

                   STATE OF TENNESSEE v. JOSEPH VERMEAL
                      Direct Appeal from the Circuit Court for Warren County
                              No. F-8405 Larry B. Stanley, Jr., Judge



                      No. M2005-00568-CCA-R3-CD - Filed December 28, 2005


The appellant, Joseph Vermeal, was convicted by a jury in the Warren County Circuit Court of
attempted aggravated sexual battery and was sentenced to four years incarceration in the Tennessee
Department of Correction. On appeal, the appellant complains that the evidence is insufficient to
support his conviction, the trial court erred in refusing to permit his expert witness to testify, and the
trial court erred in imposing consecutive sentencing. Upon our review of the record and the parties’
briefs, we affirm the judgment of the trial court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which DAVID G. HAYES and JOHN
EVERETT WILLIAMS, JJ., joined.

Phillip T. Clemons, McMinnville, Tennessee, for the appellant, Joseph Vermeal.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General;
Dale Potter, District Attorney General; and Thomas J. Miner, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                                      OPINION

                                             I. Factual Background

        The appellant was indicted by the Warren County Grand Jury on one count of aggravated
sexual battery. In the light most favorable to the State, the proof adduced at trial revealed that on
August 26, 2000, Pioneer Baptist Church sponsored a block party in the parking lot of the nearby
Country Place Apartments. After the party ended, the victim, N.O.,1 who was seven years old, rode
her bicycle with several friends. The victim was dressed in blue jeans and a Tweety Bird shirt. One
of the other children told the victim that they could obtain ice cream at the appellant’s apartment.

        1
            This court identifies minor sexual abuse victims by their initials.
The children went to the appellant’s apartment and found that the appellant was at home, sitting on
the porch. After receiving the appellant’s permission, the children went inside and got popsicles
from the appellant’s freezer. At the appellant’s request, the children ate their popsicles on the
appellant’s front porch instead of inside his apartment. Afterward, the children went inside the
appellant’s apartment to watch television and jump on the appellant’s waterbed.

         Soon, all of the children except the victim and J.P., another female child, went home.2 The
victim remained in the appellant’s living room for thirty minutes to an hour, watching cartoons on
cable television, while J.P. went in the appellant’s bedroom to jump on the bed. The appellant joined
J.P. in the bedroom. Some time after the appellant went into the bedroom, the victim was standing
by the front door looking outside when she felt someone touch her right buttock. During her
testimony at trial, the victim demonstrated how she was touched. The victim believed that J.P. had
touched her, but when she turned around she saw the appellant. The appellant slid his hand
underneath her shirt and touched her breasts. She explained that when he touched her, “he . . .
pressed down.” The appellant removed his hand, got a beer from the kitchen, and returned to the
bedroom.

        The victim was afraid that she would get into trouble for being in the appellant’s apartment
and for letting him touch her. She remained in the apartment for a few minutes then went outside.
She rode her bike for ten minutes before being stopped by “Uncle E.J.,” Elvis Joseph Kersey.
Kersey told the victim that one of his friends had seen her in the appellant’s apartment. The victim
did not tell Kersey what the appellant had done because she was embarrassed and did not want to
discuss the incident. Kersey and the victim went to find the victim’s dad, Howard Orcutt. Both
Kersey and Orcutt lived in Country Place Apartments.

       When the victim and Kersey found Orcutt at his apartment, Kersey told Orcutt that the victim
had been in the appellant’s apartment. Orcutt left, going immediately to the appellant’s apartment.
He found the appellant sitting on the porch of his apartment. Orcutt stepped on the appellant’s porch
and asked the appellant why his daughter had been in the appellant’s apartment. The appellant
grabbed Orcutt’s neck and pushed him. A scuffle ensued with Orcutt emerging as the victor.

        Upon his return to his apartment, Orcutt found the victim sitting on the porch with her
grandmother, Barbara Bevilagua. The victim was crying. Bevilagua asked the victim if the appellant
had touched her. Initially, the victim stated that he had not; however, shortly thereafter she
acknowledged that the appellant had touched her. When asked where the appellant touched her, the
victim, who was sitting down, gestured below her waist. Orcutt went back to the appellant’s
apartment, intending to kill him. However, police had been called as a result of the previous
struggle. The appellant was taken from the scene in an ambulance.

        The victim was taken to the Department of Children’s Services (DCS) where she was


        2
        J.P. was also a victim of sexual abuse by the appellant. See State v. Joseph Vermeal, No.
M2004-00046-CCA-R3-CD, 2005 W L 1000237, at *1 (Tenn. Crim. App. at Nashville, Apr. 29, 2005).

                                                      2
interviewed by a case worker, Melba Mooneyham. The victim initially told Mooneyham that
nothing happened at the appellant’s apartment. At trial, the victim explained that at the time of the
first statement, she had not wanted to discuss the incident because she was embarrassed, frightened,
and believed she would get in trouble for being in a stranger’s apartment. At a second interview with
Mooneyham on October 10, the victim told Mooneyham about the details of the molestation.
Mooneyham believed that the victim was more comfortable with her and forthright during the second
interview.

        At the conclusion of the proof, the jury acquitted the appellant of the charged offense but
found him guilty of the lesser-included offense of attempted aggravated sexual battery. The trial
court imposed a sentence of four years. The court ordered that the sentence for the instant offense
be served consecutively to the nine-year sentence he had previously received for the aggravated
sexual battery of J.P. On appeal, the appellant challenges the sufficiency of the evidence, the trial
court’s evidentiary ruling, and the imposition of consecutive sentencing.

                                            II. Analysis

                                  A. Sufficiency of the Evidence

        In his first issue, the appellant challenges the sufficiency of the evidence supporting his
conviction, specifically complaining that there was no evidence from which a jury could infer that
the touching was for the purpose of sexual arousal or gratification. In his second issue, the appellant
contends that the trial court erred in overruling his motion for judgment of acquittal because the
victim’s testimony contained too many inconsistencies to be believed. As these issues are closely
related, we will address them together.

         Initially, we note that the record reflects that the appellant made a motion for a judgment of
acquittal at the end of the State’s proof. It is well-established that a motion for a judgment of
acquittal made at the conclusion of the State’s proof is waived by an appellant when he chooses to
present evidence on his behalf. State v. Thomas, 158 S.W.3d 361, 387 (Tenn. 2005) (quoting State
v. Ball, 973 S.W.2d 288, 292 (Tenn. Crim. App. 1998)) (appendix). Regardless, “[t]he standard by
which the trial court determines a motion for judgment of acquittal at the end of all the proof is, in
essence, the same standard which applies on appeal in determining the sufficiency of the evidence
after a conviction.” State v. Thompson, 88 S.W.3d 611, 614-15 (Tenn. Crim. App. 2000).
Therefore, we will address the appellant’s complaints as a challenge to the sufficiency of the
evidence.

        On appeal, a jury conviction removes the presumption of the appellant’s innocence and
replaces it with one of guilt, so that the appellant carries the burden of demonstrating to this court
why the evidence will not support the jury’s findings. See State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982). The appellant must establish that no reasonable trier of fact could have found the
essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307,
319, 99 S. Ct. 2781, 2789 (1979); Tenn. R. App. P. 13(e).


                                                  3
        Accordingly, on appeal, the State is entitled to the strongest legitimate view of the evidence
and all reasonable inferences which may be drawn therefrom. See State v. Williams, 657 S.W.2d
405, 410 (Tenn. 1983). In other words, questions concerning the credibility of witnesses and the
weight and value to be given the evidence, as well as all factual issues raised by the evidence, are
resolved by the trier of fact, and not the appellate courts. See State v. Pruett, 788 S.W.2d 559, 561
(Tenn. 1990).

         In the instant case, the appellant was convicted of attempted aggravated sexual battery.
“Aggravated sexual battery is unlawful sexual contact with a victim by the defendant or the
defendant by a victim” when the “victim is less than thirteen (13) years of age.” Tenn. Code Ann.
§ 39-13-504(a)(4) (2003). “‘Sexual contact’ includes the intentional touching of the victim’s [or]
the defendant’s . . . intimate parts, . . . if that intentional touching can be reasonably construed as
being for the purpose of sexual arousal or gratification.” Tenn. Code Ann. § 39-13-501(6) (2003).
It is permissible for a jury to “use their common knowledge and experience in making reasonable
inferences from evidence.” State v. Meeks, 876 S.W.2d 121, 131 (Tenn. Crim. App. 1993).
Specifically, a jury may draw upon their common knowledge to infer that an accused forced intimate
contact for the purpose of sexual arousal or gratification. Id. Additionally, criminal attempt occurs
when a person acting with the kind of culpability otherwise required for the offense:

                (1) Intentionally engages in action or causes a result that would
                constitute an offense if the circumstances surrounding the conduct
                were as the person believes them to be;

                (2) Acts with intent to cause a result that is an element of the offense,
                and believes the conduct will cause the result without further conduct
                on the person’s part; or

                (3) Acts with intent to complete a course of action or cause a result
                that would constitute the offense, under the circumstances
                surrounding the conduct as the person believes them to be, and the
                conduct constitutes a substantial step toward the commission of the
                offense.

Tenn. Code Ann. § 39-12-101(a)(1)-(3) (2003).

         In the instant case, the proof is uncontroverted that the victim was under thirteen years of age
at the time of the offense. Moreover, the victim testified that the appellant touched her breasts and
her buttocks, and she demonstrated at trial how the touching occurred. The victim explained that
when he touched her breast, he “pressed down.” We conclude that the jury, drawing upon its
common knowledge, could have inferred that the appellant committed the touching of the victim’s
breasts and buttocks for the purpose of sexual arousal or gratification. See State v. Alton Darnell
Young, No. M1999-01166-CCA-R3-CD, 2000 WL 380103, at *2 (Tenn. Crim. App. at Nashville,


                                                   4
Apr. 14, 2000). A rational jury could have determined that the appellant performed a substantial step
towards the commission of aggravated sexual battery. Thus, there was sufficient evidence to support
the appellant’s conviction for attempted aggravated sexual battery.

         As his second issue, the appellant contends that the trial court erred in overruling his motion
for a judgment of acquittal “based upon [the victim’s] inconsistent statements thereby cancelling out
her testimony.” Specifically, the appellant maintains that the victim’s version of events at trial was
so inconsistent with the version of events she related to Mooneyham, the proof should be subject to
cancellation. In Tennessee, “contradictory statements by a witness in connection with the same fact
cancel each other.” State v. Matthews, 888 S.W.2d 446, 449 (Tenn. Crim. App. 1993). However,
“[t]he rule of cancellation is typically limited to circumstances in which the witness has sworn to
each statement.” State v. Cayle Wayne Harris, No. M2000-02143-CCA-R3-CD, 2001 WL 1218582,
at *2 (Tenn. Crim. App. at Nashville, Oct. 12, 2001). Nevertheless, “[t]his rule of cancellation
applies only when inconsistency in a witness’ testimony is unexplained and when neither version of
[her] testimony is corroborated by other evidence.” Matthews, 888 S.W.2d at 449 (citing Taylor v.
Nashville Banner Pub. Co., 573 S.W.2d 476, 483 (Tenn. App. 1978)).

        In the instant case, the appellant complains that the version of events which the victim told
Mooneyham differs from the version of events the victim related at trial. As there is no indication
that the statements to Mooneyham were sworn, the victim’s testimony is thus not subject to the rule
of cancellation. Regardless, the victim clearly explained any discrepancies in her testimony at trial.
 See State v. Caldwell, 977 S.W.2d 110, 118 (Tenn. Crim. App. 1997). Accordingly, the victim’s
testimony was properly considered by the jury and the trial court in determining the appellant’s guilt.

                                         B. Expert Witness

        As his next issue, the appellant argues that the “trial court erred in not allowing appellant’s
expert to testify at this trial as to the questioning of children.” Generally, the trial court has broad
discretion in determining the qualifications, admissibility, relevancy, and competency of expert
testimony. See State v. Stevens, 78 S.W.3d 817, 832 (Tenn. 2002). As such, this court will not
overturn the trial court’s ruling on the admissibility of expert testimony absent an abuse of that
discretion. See State v. Ballard, 855 S.W.2d 557, 562 (Tenn. 1993).

        The factual basis for the appellant’s claim was best recited by the trial court in its order
granting the State’s motion to prohibit Dr. William Bernet, a prospective expert witness for the
defense, from testifying at trial. The trial court related that the State filed a request for discovery
under Tennessee Rule of Criminal Procedure 16(b) on June 18, 2002, and a motion to compel the
appellant to respond to the discovery request on August 15, 2002. On October 1, 2002, the appellant
responded that he did not intend to call an expert to testify at trial. On November 25, 2002, the
appellant filed a “second response,” setting forth his intention to call Dr. William Bernet as an
expert. The trial court found that the notice did not allow the State “a proper opportunity to prepare




                                                   5
for the witness’s testimony and the witness’s testimony must therefore be excluded.”3 The court also
found that the proposed testimony did not meet the requirements of Tennessee Rules of Evidence
702 “in that it will not substantially assist the trier of fact to determine a fact in issue, but instead
addresses an issue of witness credibility which is an issue to be determined by the jury.”

       The appellant included in the record for our review an offer of proof of the proposed
testimony of Dr. Bernet.4 During the offer of proof,

                    Dr. Bernet testified that he was a graduate of Harvard Medical School
                    and was board certified “in general psychiatry and in child and
                    adolescent psychiatry and in forensic psychiatry.” Dr. Bernet asserted
                    that his testimony would relate to three issues. First, he would
                    explain to the jury “the proper methods for interviewing children in
                    investigating allegations of maltreatment.” Second, he would discuss
                    “the various mechanisms, psychological mechanisms, by which false
                    statements are made by children.” Finally, he would testify regarding
                    “what has been studied in research with children in these situations
                    and to be able to explain or to list different factors that are consistent
                    with true allegations and different factors that are consistent with
                    false allegations of abuse.”

                            As an example, Dr. Bernet explained that he would inform the
                    jury that asking a potential child sexual abuse victim suggestive,
                    leading, or repetitive questions was ill-advised. Dr. Bernet, had
                    “reviewed the interview” of the DCS worker and JP and concluded
                    that JP had been asked questions which influenced the answers she
                    gave. Dr. Bernet also noted that there were indications in JP’s
                    previous statements which suggested that the allegations were true,
                    and there were other indications which would suggest the allegations
                    were false. Dr. Bernet stated that his testimony would serve to aid the
                    jury in determining the credibility of the statements of the child
                    witnesses and “help them be aware of issues they need to be aware
                    of.”

State v. Joseph Vermeal, No. M2004-00046-CCA-R3-CD, 2005 WL 1000237, at *5 (Tenn. Crim.
App. at Nashville, Apr. 29, 2005).

          On appeal, the appellant challenges the trial court’s exclusion of Dr. Bernet’s testimony,


          3
              The trial was set to begin on December 3, 2002.

          4
              The proffer was originally made in the appellant’s previous trial relating to the aggravated sexual battery
of J.P.

                                                             6
arguing that the testimony was reliable and would substantially assist the trier of fact. Tennessee
Rule of Evidence 702 provides:

               If scientific, technical, or other specialized knowledge will
               substantially assist the trier of fact to understand the evidence or to
               determine a fact in issue, a witness qualified as an expert by
               knowledge, skill, experience, training, or education may testify in the
               form of an opinion or otherwise.

Further, McDaniel v. CSX Transportation, Inc., 955 S.W.2d 257, 265 (Tenn. 1997), suggests the
following criteria a court may consider in determining the reliability of proposed expert testimony:

               (1) whether scientific evidence has been tested and the methodology
               with which it has been tested; (2) whether the evidence has been
               subjected to peer review or publication; (3) whether a potential rate
               of error is known; (4) whether . . . the evidence is generally accepted
               in the scientific community; and (5) whether the expert’s research in
               the field has been conducted independent of litigation.

         In State v. Coley, 32 S.W.3d 831 (Tenn. 2000), our supreme court examined the strictures
of Rule 702 and McDaniel in determining the admissibility of expert testimony concerning the
reliability of eyewitness testimony. The court noted that the testimony proposed in Coley was “of
a general nature designed to affect the juror’s decision on the credibility of witnesses.” Coley, 32
S.W.3d at 835. The court emphasized that “the assessment of witness credibility and the role of fact-
finder is always left to the jury, regardless of the issue present in the case.” Id. Finally, the court
found that

               expert testimony concerning eyewitness identification simply offers
               generalities and is not specific to the witness whose testimony is in
               question. Moreover, we are of the opinion that the subject of the
               reliability of eyewitness identification is within the common
               understanding of reasonable persons.

Id. at 837. Thus, the court concluded that the trial court had properly excluded Coley’s expert
witness. Id. at 838.

        Our review of the record in the instant case convinces us that the testimony of Dr. Bernet
regarding the interviewing techniques of alleged child sexual abuse victims is akin to that proposed
in Coley. Dr. Bernet’s testimony was geared toward assessing the credibility of the child witnesses.
The assessment of witness credibility rests in the province of the jury. Therefore, we conclude that
the trial court in the instant case properly excluded the testimony of the appellant’s prospective
expert witness.



                                                  7
                                            C. Sentencing

        As his final issue, the appellant argues that the trial court erred in ordering the appellant to
serve his instant sentence consecutively to the nine-year sentence for his previous aggravated sexual
battery conviction. The petitioner contends that the two sentences should have run concurrently.

        Appellate review of the length, range or manner of service of a sentence is de novo.
See Tenn. Code Ann. § 40-35-401(d) (2003). In conducting its de novo review, this court considers
the following factors: (1) the evidence, if any, received at the trial and the sentencing hearing; (2)
the presentence report; (3) the principles of sentencing and arguments as to sentencing alternatives;
(4) the nature and characteristics of the criminal conduct involved; (5) evidence and information
offered by the parties on enhancement and mitigating factors; (6) any statement by the appellant in
his own behalf; and (7) the potential for rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-
102, -103, -210 (2003); see also State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991). The burden is
on the appellant to demonstrate the impropriety of his sentence(s). See Tenn. Code Ann. § 40-35-
401, Sentencing Commission Comments. Moreover, if the record reveals that the trial court
adequately considered sentencing principles and all relevant facts and circumstances, this court will
accord the trial court’s determinations a presumption of correctness. Id. at (d); Ashby, 823 S.W.2d
at 169.

        We note that “[w]hether sentences are to be served concurrently or consecutively is a matter
addressed to the sound discretion of the trial court.” State v. Adams, 973 S.W.2d 224, 230-31 (Tenn.
Crim. App. 1997). Tennessee Rule of Criminal Procedure 32(c)(2) provides that consecutive
sentencing may be ordered when a defendant is convicted of an offense and “has additional sentences
not yet fully served” if the defendant meets the criteria for mandatory or discretionary consecutive
sentencing. In the instant case, there is no allegation that the appellant meets the criteria for
mandatory consecutive sentencing. Therefore, we must consider whether the appellant qualifies for
discretionary consecutive sentencing.

        Tennessee Code Annotated section 40-35-115(b) (2003) contains the discretionary criteria
for imposing consecutive sentencing. See also State v. Wilkerson, 905 S.W.2d 933, 936 (Tenn.
1995). The trial court may impose consecutive sentencing upon finding the existence of any one of
the following criteria:

                (1) The defendant is a professional criminal who has knowingly
                devoted such defendant’s life to criminal acts as a major source of
                livelihood;

                (2) The defendant is an offender whose record of criminal activity is
                extensive;

                (3) The defendant is a dangerous mentally abnormal person so
                declared by a competent psychiatrist who concludes as a result of an


                                                   8
               investigation prior to sentencing that the defendant’s criminal conduct
               has been characterized by a pattern of repetitive or compulsive
               behavior with heedless indifference to consequences;

               (4) The defendant is a dangerous offender whose behavior indicates
               little or no regard for human life, and no hesitation about committing
               a crime in which the risk to human life is high;

               (5) The defendant is convicted of two (2) or more statutory offenses
               involving sexual abuse of a minor with consideration of the
               aggravating circumstances arising from the relationship between the
               defendant and victim or victims, the time span of defendant’s
               undetected sexual activity, the nature and scope of the sexual acts and
               the extent of the residual, physical and mental damage to the victim
               or victims;

               (6) The defendant is sentenced for an offense committed while on
               probation; or

               (7) The defendant is sentenced for criminal contempt.

Tenn. Code Ann. § 40-35-115(b)(1)-(7) (2003).

        In the instant case, the trial court found that consecutive sentencing was proper because the
appellant had been convicted of two or more statutory offenses involving sexual abuse of a minor
with consideration of the aggravating circumstances arising from the relationship between the
appellant and victim or victims, the time span of appellant’s undetected sexual activity, the nature
and scope of the sexual acts and the extent of the residual, physical and mental damage to the victim
or victims. The appellant’s previous aggravated sexual battery conviction stemmed from the sexual
abuse of J.P. in his apartment on the night of the instant offense. The appellant penetrated J.P. with
his penis while the victim in the instant case watched cartoons in the living room. During the same
evening, the appellant fondled the buttocks and breasts of the instant victim, resulting in a conviction
for attempted aggravated sexual battery. Thus, the appellant was clearly guilty of two offenses
involving the sexual abuse of a minor.

        The sexual abuse of minors, alone, is insufficient to sustain the imposition of consecutive
sentencing. We must also look at “the aggravating circumstances arising from the relationship
between the appellant and victim or victims, the time span of [the appellant’s] undetected sexual
activity, the nature and scope of the sexual acts and the extent of the residual, physical and mental
damage to the victim or victims.” Tenn. Code Ann. § 40-35-115(b)(5). The time span of the
appellant’s undetected sexual activity is relatively short. Moreover, there was no particular
relationship between the appellant and the victims. However, the scope of the sexual acts and the
extent of the residual mental damage to the victims was great. At the time of the offenses, the


                                                   9
appellant was a single, white, fifty-one-year-old male. The victims, who were seven and eight years
old, came into his apartment, lured by ice cream. He allowed the children to watch cable cartoons
and jump on his bed. In the midst of this activity, the appellant sexually accosted two minor victims.
In the instant case, Orcutt, N.O.’s father, testified at the sentencing hearing that the victim still
suffers from her ordeal, noting that her grades had dropped and had not improved by the time of the
sentencing hearing. He also testified that the victim suffered from depression and nightmares, and
she feared that the appellant would jump out from behind things and kill her. After considering the
foregoing, we conclude that the trial court did not abuse its discretion in imposing consecutive
sentencing.

                                          III. Conclusion

       Finding no error, we affirm the judgment of the trial court.


                                                      ___________________________________
                                                      NORMA McGEE OGLE, JUDGE




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