         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              Assigned on Briefs March 7, 2001

                STATE OF TENNESSEE v. CHARLES ROY COLE

                  Direct Appeal from the Circuit Court for Madison County
                          No. 99-174    Roy B. Morgan, Jr., Judge



                      No. W2000-01129-CCA-R3-CD - Filed May 9, 2001


The defendant, Charles Roy Cole, was charged with aggravated assault and rape of a child. He was
acquitted on the first charge and convicted on the second. The trial court imposed a sentence of 20
years. In this appeal of right, the defendant challenges the sufficiency of the evidence and argues that
the trial court erred in its jury instructions regarding admissions against interest. The judgment is
affirmed.

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

GARY R. WADE, P.J., delivered the opinion of the court, in which DAVID H. WELLES and NORMA
MCGEE OGLE , JJ., joined.

J. Colin Morris, Jackson, Tennessee, for the appellant, Charles Roy Cole.

Paul G. Summers, Attorney General & Reporter; Laura E. McMullen, Assistant Attorney General;
and Jody Pickens, Assistant District Attorney General, for the appellee, State of Tennessee.

                                              OPINION

        The victim, who was approximately 17 years old at the time of trial, lived with her mother,
Paulette Cole, and the defendant, her stepfather. She and her mother had resided with the defendant
since she was five months old. The victim had two half-sisters, ages 14 and 15, and a half-brother,
age 12. When the victim was 15 years of age, she developed a relationship with Mike Patrick, age
26.

       Because the victim admitted to skipping school and using illegal drugs and because they
suspected that Patrick was a drug dealer, the victim's mother and stepfather ordered the victim to
terminate the relationship. Afterward, the victim became distraught and threatened suicide. On
October 6, 1998, she wrote a letter containing the following statements:
        I cry so hard. I cry when I'm alone because I love somebody and they took it away
        . . . . So I'm going to take away from them what they took from me.

       On October 26, 1998, almost three weeks after writing the letter, the victim returned home
from school and refused to eat. That night, Mr. and Mrs. Cole admitted her to the Pathways Hospital
for drug testing. While there, the victim told Jeff Gray, a crisis counselor, that the defendant had
raped her some years before.

        At trial, the victim provided the details of the incident. She testified that the defendant came
to her room on the night of November 13, 1993, her eleventh birthday. She stated that the defendant
woke her, directed her to the living room, and then told her to take off her clothes. She testified that
the defendant then forced her to have sexual intercourse and, afterwards, threatened to kill her if she
told anyone. The victim also testified that the defendant held a knife to her throat and threatened her
when he learned that she skipped school to be with another young man.

       The victim testified that she had never revealed the incident before talking to Gray. She
explained that she was afraid of how her stepfather would react. After talking with Gray, the victim
returned to her mother and stepfather. She claimed that her mother overheard the conversation
between her, her stepfather, and Gray concerning the rape.

        The victim also explained that her parents learned about her relationship with Patrick when
she "skipped school one day . . . went over to his house, and . . . didn't come back home until . . . that
next morning. . . ." She contended that she went to Pathways to have a drug screen to demonstrate
to her mother that she was not using illegal drugs anymore.

       During cross-examination, the victim was asked why she had said nothing about the incidents
until Mr. and Mrs. Cole had learned of her truancy and directed that her relationship with Patrick be
terminated. At that point, the victim answered "No, he hurted me. He had sex with me. He came
in my room. When I was five years old, he took me out of my room." There was no
contemporaneous objection. During a bench conference, however, defense counsel later inquired
whether the victim's answer had been responsive to the question and objected to the state's efforts
to examine the victim further. The trial court prohibited further reference, concluding the likely
prejudice outweighed any probative value.

        Gray testified that he met with the victim and her mother on October 26. He recalled that the
victim reported that she had been raped by her stepfather on one occasion and that he had held a
knife to her throat on another. Gray stated that he then had a conversation with the defendant in the
waiting room in the presence of the victim concerning the victim's accusation of rape. Gray testified
that he asked the defendant if it was true, to which the defendant answered, "Yes, I need some help."
Gray recalled that he denied ever holding a knife to the victim's throat. Gray then testified that he
asked the defendant about the rape on more than one occasion and that each time the defendant
answered affirmatively.



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        Officer Alan Randolph of the Jackson Police Department was dispatched to the hospital to
"basically keep an eye" on the defendant. Officer Randolph recalled that the defendant, who
appeared distraught, approached him and said, "Hello," "I'm sorry," and "I need some help." The
officer recalled that the victim's mother was nearby and was in a position to hear the conversation.
Sergeant Randall Blankenship, who was with Officer Randolph, also testified that the defendant
made the statement, "I need help."

        Rene Pullen, an investigator with Child Protective Services for over a year, also testified for
the state. Ms. Pullen, who had a bachelor's degree and some training within the department, opined
without objection that sexually abused children often do not report abuse due to fears that they will
not be believed, that they will be blamed for the event, or that they will be harmed. She stated that
skipping school, running away, and abusing drugs and alcohol "can indicate sexual abuse or any kind
of abuse . . . [with the victim] unintentionally hoping that somebody will find out what's really going
on." Ms. Pullen stated that it was her opinion that victims of sexual abuse also seek out older people
in their relationships. On cross-examination, Pullen was asked if she ever followed up on the
victim's claim that she had told her maternal grandmother about the sexual abuse. She
acknowledged that she had not because "with everything else we had, [it] wasn't a big issue at that
point."

        Tabitha Cole, the victim's sister, testified for the defense. She maintained that the victim
never informed her of any sexual misconduct on the part of the defendant. Tabitha also testified that
after the defendant was charged, the victim claimed that she did not say "all them things that was in
the paper and . . . wish[ed] she could take it back." She also stated that the victim was acting "crazy"
and "cursing my momma and my daddy a lot" on the night she was taken to the hospital.

        Paulette Cole, the victim's mother, testified that the victim had been "acting strange," "mad,"
and "ready to fight and stuff" just before she was taken to the hospital. Ms. Cole recalled that the
victim went to her room and refused to eat. When the victim continued to misbehave, Ms. Cole
decided to take her to the emergency room to have her tested for illegal drugs. She testified that a
few weeks earlier, the victim had stayed out all night with Patrick and later admitted to "drinking,
smoking, and having sex. . . ." She testified that the victim reacted angrily when told that the
relationship must be terminated.

        Ms. Cole acknowledged that during the examination at the hospital on October 26, 1998, she
overheard the allegations made by the victim against the defendant. She stated that the victim had
never complained about sexual abuse and that she did not hear noises coming from the living room
on November 13, 1993. Ms. Cole testified that just before the hospital visit, the victim began to act
strangely. She stated that she searched the victim's room for any clues to explain her behavior, but
never found any note or letter wherein the victim had accused the defendant of sexual impropriety.
Ms. Cole contended that if there had been indications of misconduct on the part of the defendant,
she would have called the police and had him arrested. She stated that she was present when
counselor Gray talked to the defendant and that he never stated "Yes, I need help," in response to any
inquiry. Ms. Cole conceded, however, that she was not present when Officer Randolph and Sergeant


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Blankenship talked with the defendant. She also acknowledged that a day or so after she had taken
the victim to the hospital, she found a diary in the victim's room. She stated there was nothing in the
diary about the defendant's sexual impropriety.

          The defendant denied that he raped and assaulted the victim. He stated that several weeks
before his arrest, he told Patrick to leave the victim alone; after that, the victim "just went berserk."
He recalled that just prior to taking her to the hospital, the victim looked "high" and was "acting like
she . . . wasn't there." He testified that he took the victim to the hospital because he suspected that
she was on drugs and later discovered that she had skipped three classes. He stated that the victim
was already "in trouble" with the school's truancy board and had missed 14 days of school that fall.
The defendant explained that he took the victim to the hospital to determine whether she was
"smoking dope" or "hooked on crack cocaine."

        While the defendant acknowledged that counselor Gray asked if he had ever engaged in sex
with the victim, he denied answering in the affirmative. He also denied having any discussions with
Officer Randolph. The defendant testified that he had never had sex with the victim and had never
threatened her with a knife. He stated that the victim often threatened suicide when she did not get
what she wanted. The defendant acknowledged that he did give the victim extra money, but only
because she was in a higher grade than the rest of his children. The defendant, a Vietnam veteran
and Sunday School teacher with no prior criminal record, explained on cross-examination that
counselor Gray informed him of the victim's statement and was asked if he understood. The
defendant contended that he answered, "Yes, I understand. . . ." The defendant also maintained that
counselor Gray had taken his words out of context or had misunderstood his statement. The
defendant admitted that he said he was sorry but denied that it was in response to the victim's rape
and assault allegations. Finally, he denied ever having said, "I need help."

        The jury returned a verdict of guilt on the charge of rape of a child. It acquitted the defendant
on the aggravated assault charge.

                                                    I

        Initially, the defendant claims that the evidence was insufficient to support a conviction for
rape of a child. He argues that the victim was motivated to lie by her own anger after he and his wife
attempted to discipline her for her misbehavior with Patrick. He also contends that he never
admitted to raping the victim and that counselor Gray misunderstood his statement. He argues that
the statement, "I need help," was not an admission of guilt and had no probative value.

        On appeal, the state is entitled to the strongest legitimate view of the evidence and all
reasonable inferences which might be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835
(Tenn. 1978). The credibility of the witnesses, the weight to be given their testimony, and the
reconciliation of conflicts in the proof are matters entrusted to the jury as the trier of fact. Byrge v.
State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978). When the sufficiency of the evidence is
challenged, the relevant question is whether, after reviewing the evidence in the light most favorable


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to the state, any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt. Tenn. R. App. P. 13(e); State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983). A
guilty verdict, approved by the trial judge, accredits the testimony of the witnesses for the state and
resolves all conflicts in the proof in favor of the state's theory. State v. Hatchett, 560 S.W.2d 627,
630 (Tenn. 1978).

       Rape of a child is defined as follows:

               (a) Rape of a child is the unlawful sexual penetration of a victim by the
       defendant or the defendant by a victim, if such victim is less than thirteen (13) years
       of age.

               (b) Rape of a child is a Class A felony.

               (c) When imposing sentence under the provisions of title 40, chapter 35, for
       a conviction under this section, the court shall consider as an enhancement factor that
       the defendant caused the victim to be mentally incapacitated or physically helpless
       by use of a controlled substance.

Tenn. Code Ann. § 39-13-522 (1997).

        The victim testified that she was raped by the defendant on her eleventh birthday. The
defendant contested the claim, contending that the victim, who waited five years to allege any
impropriety, had been motivated to lie by anger over the disciplinary measures imposed upon her.
Counselor Gray testified that the defendant answered in the affirmative when asked whether he had
had sexual contact with the victim. Gray also testified that the defendant said, "I need some help,"
when confronted by the allegations of impropriety. Two officers corroborated that the defendant had
made such a statement. The testimony offered by the state and that presented by the defense offered
a classic jury question.

        A jury verdict of guilt, of course, accredits the witnesses for the state and resolves, for
appellate purposes, any conflicts in the evidence. In determining the sufficiency of the proof to
convict, this court may neither reweigh nor reevaluate the testimony. In this instance, there was
proof to support each element of the offense. While recognizing that there was evidence favorable
to the defense theory, it is our view that the jury acted within its prerogative in determining that the
defendant was guilty. This court may not second guess that conclusion.

                                                   II

       The defendant did not object when counselor Gray, Officer Randolph, and Sergeant
Blankenship testified that he said, "I need help." While he did not present the issue in his motion
for new trial, the defendant now argues that the trial court erred when it instructed the jury as to an
admission against interest. See Tenn. R. Evid. 803. The instruction was as follows:


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              Evidence has been introduced in this trial of a statement or statements made
       by the defendant outside of trial. Such statements must be corroborated by other
       independent evidence to warrant and support a conviction.

               The court has permitted admission of this evidence, but it remains your duty
       to decide if, in fact, such statement or statements were ever made. If you do not
       believe it was ever made, you should not consider it. If you decide any such
       statement was made, you must then judge the truth of the facts stated. In determining
       whether the statement is true, you should consider the circumstances under which it
       was made. You should also consider whether any of the evidence before you tends
       to contradict the statement in whole or in part. You should not arbitrarily disregard
       any part of the statement but should consider all of the statement you believe is true.

                If you find the statement is true, you are the sole judge of the weight that
        should be given it. You should consider it along with all of the other evidence in the
        case in determining the defendant's guilt or innocence.

         An admission against interest has been defined as "a statement by the defendant which
acknowledges the existence or truth of some fact necessary to be proven to establish the guilt of the
defendant or which tends to show the guilt of the defendant or is evidence of some material fact, but
not amounting to a confession." State v. Roger Morris Gardner, No. 03C01-9712-CR-00524 (Tenn.
Crim. App., at Knoxville, July 13, 1999). The instruction provided is virtually identical to the
instruction on admission against interest contained in the Tennessee Pattern Jury Instructions. See
T.P.I. - Crim. § 42.11(a) (4th ed. 1995). In Helton v. State, our supreme court defined an admission
against interest as "an acknowledgment by the accused of certain facts which tend together with other
facts, to establish his guilt; while a confession is an acknowledgment of guilt itself. An admission,
then, is something less than a confession and, unlike a confession, . . . an admission is not sufficient
in itself to support a conviction." 547 S.W.2d 564, 567; see also State v. Kyger, 787 S.W.2d 13, 23
n.2 (Tenn. Crim. App. 1989).

        Gray testified that he asked the defendant whether he "did this" and in response, the
defendant either said, "Yes," or nodded in the affirmative and then said, "I need some help." Officer
Randolph testified that the defendant, on more than one occasion, said, "I'm sorry," and, "I need
some help." Sergeant Blankenship testified that he overheard the defendant, just before he was taken
into custody, say, "I need help." It was the responsibility of the jury to determine whether these
statements were made, whether they were truthful, and what weight the statements should have been
given in determining guilt or innocence. In our view, the instruction was proper. It allowed the jury
to consider the surrounding circumstances and determine, in proper context, if the defendant was
acknowledging culpability. That was the correct procedure.

       In summary, it is our view that the evidence was properly admitted and that the trial court
provided appropriate instructions to the jury. Moreover, the defendant's failure to make a
contemporaneous objection to the testimony was a waiver on the issue of admissibility and his


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failure to challenge the instructions in his motion for new trial would ordinarily result in a waiver
of the issue on appeal. See Tenn. R. App. P. 36(a).

       Accordingly, the judgment is affirmed.



                                                      ___________________________________
                                                      GARY R. WADE, PRESIDING JUDGE




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