           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT NASHVILLE
                    Assigned on Briefs December 15, 2004

                 STATE OF TENNESSEE v. JOSEPH VERMEAL

                  Direct Appeal from the Circuit Court for Warren County
                         No. F-8351    Larry B. Stanley, Jr., Judge



                     No. M2004-00046-CCA-R3-CD - Filed April 29, 2005


The appellant, Joseph Vermeal, was convicted by a jury in the Warren County Circuit Court of
aggravated sexual battery and was sentenced to nine years incarceration in the Tennessee Department
of Correction. On appeal, the appellant alleges that the evidence was insufficient to support his
conviction, and he contends that the trial court erred in refusing to permit his expert witness to
testify. 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 Circuit Court is Affirmed.

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JERRY L. SMITH and JOHN
EVERETT WILLIAMS, JJ., joined.

Rick L. Stacy (at trial and on appeal) and Lisa Zavogiannis (at trial), 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 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 for rape of a child. In the light
most favorable to the State, the proof adduced at trial revealed that on August 26, 2000, Pioneer
Community Baptist Church sponsored a block party in the parking lot of nearby Country Place
Apartments. The party began at 10:00 a.m. and lasted until 2:00 p.m. During the party, John
Thompson, the pastor of the church, saw the appellant on his porch at the apartment complex.
Thompson introduced himself to the appellant, and the two men spoke briefly. Thompson observed
that the appellant was drinking beer, but he did not appear intoxicated. Later, Thompson saw the
appellant standing near a dunking machine that had been set up for the party. Thompson stated that
a number of children were taking turns going into the water. Thompson saw a child enter the
appellant’s apartment and exit with towels. The appellant distributed these towels to the wet
children. Throughout the party, Thompson saw children going into and leaving the appellant’s
apartment.

        After the party ended, the victim, JP,1 and her friend, Nichole Orcutt, both of whom were
eight years old, rode their bicycles with some friends. One of the other children told Orcutt that they
could obtain ice cream at the appellant’s apartment. The children went to the appellant’s apartment
and found that the appellant was home. The children got popsicles from the appellant’s freezer, and
ate them on the appellant’s front porch. 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
Orcutt and JP went home.

        At trial, Orcutt recalled that she was in the living room while JP was jumping on the
appellant’s bed. The appellant went into the bedroom. Orcutt looked into the bedroom and saw that
the appellant “had taken some of [JP’s] clothes off and his pants and had his, um, private part to her
private part.” JP testified that the appellant knocked her onto the bed, removed her pants and
underwear, removed his own pants and underwear, and penetrated her vagina with his penis. After
the incident, the children left the appellant’s apartment.

        Charles Ikeard, who testified for the appellant, remembered going to the appellant’s
apartment after the block party. He saw that Orcutt and JP were playing on the appellant’s bed.
Ikeard told the appellant that “it didn’t look good” that the girls were in the apartment with the
appellant. Then, Ikeard told the children to go home. Ikeard also informed the children’s parents
of the girls’ location.

        Howard Orcutt, Nichole Orcutt’s father, stated that on the night of the offense he was told
that his daughter was in the appellant’s apartment. After receiving the information, Mr. Orcutt
approached the appellant, who was on his porch. Mr. Orcutt confronted the appellant, asking why
his daughter had been in the appellant’s apartment. The appellant pushed Mr. Orcutt. Then, Mr.
Orcutt “put him in the hospital,” beating the appellant so severely that an ambulance was called.

         Nichole Orcutt and JP were taken to the District Attorney General’s Office for questioning.
Initially, the children denied that anything had happened. However, almost immediately thereafter,
JP stated that the appellant abused her after plying her with liquor and threatening her with a knife.
At trial, JP explained that she manufactured these additional details due to her fear that she would
get in trouble with her mother because she was not supposed to be in the appellant’s apartment, and
she just wanted the ordeal to be over. Orcutt also explained that her previous statements may have
contained inconsistencies because she was “freaked out” by the incident and “now I can remember
everything that happened because I ain’t that scared.”



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

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        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 aggravated sexual battery. The trial court imposed
a sentence of nine years. On appeal, the appellant questions whether the evidence was sufficient to
sustain his conviction and “[w]hether the trial court committed reversible error in not admitting the
testimony of the defense’s expert witness into evidence.”

                                             II. Analysis

        In his first issue, the appellant challenges the sufficiency of the evidence supporting his
conviction, specifically complaining that “[t]here was no physical, biological or medical evidence
presented that [he] committed an aggravated sexual battery.” In his second issue, the appellant
contends that “the trial court erred in overruling the [appellant’s] motion for judgment of acquittal
based upon [JP’s] testimony that she had lied under oath during her preliminary hearing testimony.”
The appellant also notes that the trial court “abused its discretion in not disregarding the testimony
of the young girls in its capacity as thirteenth juror.”

        This court has observed that once the trial court has approved the verdict as the thirteenth
juror, as it has in this case, our appellate review is then limited to determining the sufficiency of the
evidence. See State v. Burlison, 868 S.W.2d 713, 719 (Tenn. Crim. App. 1993). Moreover, “[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).

        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 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


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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). Additionally, 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. See State v. Jack Warren Emert, Jr., No. 03C01-9802-CC-00074,
1999 WL 512029, at *2 (Tenn. Crim. App. at Knoxville, July 21, 1999).

         In the instant case, the proof is uncontroverted that JP was under thirteen years of age at the
time of the offense. Both JP and Orcutt testified that the appellant removed the bottom half of his
and JP’s clothes and positioned himself on top of JP, with their genitals touching. The jury, as was
their prerogative, chose to believe JP and Orcutt. We conclude that the testimony of JP and Orcutt
is sufficient to sustain the appellant’s conviction.

         However, before we end our analysis, we will address the appellant’s challenges to the
testimony of both JP and Orcutt. First, the appellant claims that Orcutt’s “testimony should have
been declared incredible as a matter of law by the court and disregarded by the jury pursuant to the
so-called ‘physical facts rule.’” The “physical facts rule” allows testimony to be disregarded “where
the testimony of a witness is entirely irreconcilable with the physical evidence.” State v. Hornsby,
858 S.W.2d 892, 894 (Tenn. 1993). Prior to declaring testimony incredible as a matter of law, “it
must be unbelievable on its face, i.e., testimony as to facts or events that the witness physically could
not have possibly observed or events that could not have occurred under the laws of nature.” Id. Our
supreme court has cautioned that “the power to disregard oral testimony because of its inherent lack
of believability is one that should be used sparingly.” Id. at 895.

        The appellant alleges that Orcutt’s testimony should be considered incredible because “there
was overwhelming evidence that [she] did not in fact witness the alleged incident.” As proof of his
allegation, the appellant states that Orcutt testified at trial that she witnessed the incident from the
living room, contrary to her previous statement to Investigator Derwin Adcock that she witnessed
the incident from the appellant’s front porch. Additionally, the appellant notes that JP stated that
Orcutt was not in the room during the incident. Further, the appellant cites discrepancies between
the testimony of JP and Orcutt. The appellant’s complaints do not indicate that it was physically
impossible for Orcutt to have witnessed the offense. Instead, the appellant’s complaints center
around Orcutt’s believability, a question which was properly determined by the jury in this case.
This issue has no merit.

        Next, the appellant contends that JP’s testimony is subject to the rule of cancellation.
Specifically, the appellant maintains that JP “testified under oath to two very different accounts of
what allegedly occurred. . . . Here there was no reasonable explanation for [JP’s] admitted perjury.”
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). Moreover, “[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


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*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, JP apparently gave two versions of the offense prior to testifying at trial.
First, JP told an employee of the Department of Children’s Services (DCS) that nothing happened,
then quickly amended her story to allege that the appellant gave her liquor to drink and threatened
her with a knife prior to abusing her. We are unable to determine if this was a sworn statement.
Nevertheless, JP explained at trial that she initially said that the appellant threatened her and gave
her liquor “[b]ecause I didn’t really want nothing to happen to me again and I was scared.” After
her statement to the DCS worker but prior to her testimony at the instant trial, JP testified in another
proceeding.2 At that proceeding, JP testified that the appellant “hadn’t done anything” to her. At
the instant trial, JP explained that she denied the offense at the prior proceeding “[b]ecause I wanted
him to stay in jail.” Additionally, JP explained that she was embarrassed by the offense and was
frightened of the appellant. Further, JP asserted that she “told people in the past that nothing
happened just in the hopes of getting this over so [she] wouldn’t have to talk about it anymore.”
Thus, JP clearly explained her reasons for giving various versions of the offense. See State v.
Caldwell, 977 S.W.2d 110, 118 (Tenn. Crim. App. 1997). Moreover, JP’s testimony was
corroborated by Orcutt. Therefore, the rule of cancellation does not apply. Accordingly, the
testimony of Orcutt and JP were properly considered by the jury and the trial court in determining
the appellant’s guilt.

                                                B. Expert Witness

        As his final issue, the appellant argues that the “trial court committed reversible error in not
admitting a qualified expert’s testimony concerning professionally acceptable interviewing
techniques 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).

        Prior to trial, the State filed a motion in limine to exclude the testimony of Dr. William
Bernet, a prospective expert witness for the defense. The State contended that the appellant had
indicated his intention “to call Dr. Bernet to give testimony regarding the proper method for
interviewing children and investigating allegations of child maltreatment, the various explanations
for false allegations by children, and the factors that are consistent with true and false allegations by
children.” The State argued that such testimony did not meet the test set forth in McDaniel v. CSX
Transportation, Inc., 955 S.W.2d 257 (Tenn. 1997), nor did it satisfy the requirements of Tennessee
Rule of Evidence 702.

        2
            The record does not reflect the nature of the prior proceeding.

                                                          -5-
        The trial court entered an order, granting the State’s motion in limine. In its order, the trial
court found that Dr. Bernet’s proposed testimony did not meet the standards of reliability announced
in McDaniel and would not substantially assist the trier of fact to understand the evidence or
determine a fact in issue as required by Rule 702. Additionally, the court relied upon State v. Coley,
32 S.W.3d 831 (Tenn. 2000), which case provided for the exclusion of expert testimony generalizing
the unreliability of eyewitness testimony.

         Immediately prior to trial, the appellant called Dr. Bernet to the stand to make an offer of
proof regarding his proposed testimony. 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.”

        At the conclusion of the offer of proof, the trial court reiterated its grant of the State’s motion
in limine. The court observed that Dr. Bernet was “eminently qualified in the areas which he stated,”
but he did not give jurors “enough credit about knowing . . . a lot of these things were common
sense.” Specifically, the court stated that “everyone can understand a leading question leads to an
answer whether it was true or not.” The trial court noted that the doctor’s testimony would not
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 suggested the following criteria a court may consider in determining the reliability


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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.

955 S.W.2d at 265.

        In Coley, 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.

        Recently, in State v. Howard Walter Thomas, No. E2003-02090-CCA-R3-CD, 2005 WL
735040, (Tenn. Crim. App. at Knoxville, Mar. 30, 2005), this court addressed a similar issue. In
Thomas, the defendant argued that the victim’s identification was plagued with problems, such as
a time gap between the crimes and her identification of the defendant as the perpetrator, the use of
hypnosis, and the victim’s exposure to news about the case and a photograph of the defendant prior
to her identification. Id. at *21. Based upon these alleged problems with the victim’s testimony,
Thomas sought to introduce an expert witness who would “testify about the ‘workings of human
memory,’ the effects of factors such as suggestions on memory, and the creation and characteristics
of false memory.” Id. On appeal, the appellant challenged the trial court’s refusal to admit the
testimony of the expert witness. This court noted:

               In Coley, our supreme court relied upon [State v. Ballard, 855 S.W.2d
               557, 562 (Tenn. 1993)], which explained that “expert testimony
               describing the behavior of an allegedly sexually abused child is not
               reliable enough to ‘substantially assist’ a jury in an inquiry of whether
               the crime of child sexual abuse has taken place,” and State v.


                                                 -7-
               Schimpf, 782 S.W.2d 186, 193-94 (Tenn. Crim. App. 1989), which
               explained that expert testimony, concerning child sexual abuse
               syndrome, that a child had been sexually abused “invaded the jury’s
               province by offering testimony which ultimately went to credibility.”

Id. at *24. This court found that the testimony of Thomas’ proposed expert likewise would “invad[e]
the province of the jury in assessing the credibility of the eyewitness identifications.” Id. Thus, this
court upheld the trial court’s refusal to admit the expert testimony. Id.

        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 and in Thomas. 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, like in Coley and in Thomas, the trial court in the instant case properly excluded
the testimony of the appellant’s prospective expert witness, which testimony would have invaded
the province of the jury.

                                           III. Conclusion

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


                                                        ___________________________________
                                                        NORMA McGEE OGLE, JUDGE




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