         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs February 14, 2006

           STATE OF TENNESSEE v. WILLIAM THOMAS BRANCH

                 Direct Appeal from the Criminal Court for Davidson County
                         No. 2003-D-3001 Mark J. Fishburn, Judge



                      No. M2005-01125-CCA-R3-CD - Filed July 10, 2006


Following a jury trial, Defendant, William Thomas Branch, was found guilty of the offense of rape
of a child, a Class A felony. The trial court sentenced Defendant as a Range I, standard offender,
to fifteen years. In his appeal, Defendant argues that the evidence is insufficient to support his
conviction, and that the trial court erred in its instructions to the jury. After a thorough review of the
record, we affirm the judgment of the trial court.

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

THOMAS T. WOODALL, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS,
J., joined; DAVID H. WELLES, J., concurred in results only.

Ross E. Alderman, District Public Defender; Emma Rae Tennent, Assistant Public Defender; Clark
B. Thornton, Assistant Public Defender; and Katie Weiss, Assistant Public Defender, Nashville,
Tennessee, for the appellant, William Thomas Branch.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
Victor S. (Torry) Johnson III, District Attorney General; and Jeffrey Devasher, Assistant District
Attorney General, for the appellee, the State of Tennessee.

                                               OPINION

I. Background

        The minor victim will be referred to by his initials, C.G. Taronda Garrett, the victim’s
mother, testified that C.G. is an only child, and Ms. Garrett often arranged time for C.G. to visit
family members so that he could play with other children. Ms. Garrett said that her Uncle Carl and
Defendant, her uncle’s long-term partner, lived next door to her grandmother. On the day of the
offense, Ms. Garrett and C.G. spent the day with Ms. Garrett’s grandmother, and C.G. played with
Defendant’s grandsons, Devonta and Roderrick Branch. Ms. Garrett said she had plans to attend a
party that night, and C.G. asked her if he could spend the night at his great-uncle’s house so that he
could continue playing with Defendant’s grandsons. Ms. Garrett said she agreed, although she
thought at the time that her uncle was going to be home that night.

        Ms. Garrett said that she arrived at her grandmother’s house the next morning before 11:00
a.m., and C.G. was playing outside. Ms. Garrett, C.G., and Ms. Garrett’s grandmother attended
church services, and then Ms. Garrett and C.G. returned to their home. Ms. Garrett said that she did
not notice anything wrong with her son. That afternoon, Ms. Garrett received a telephone call from
Devonta’s and Roderrick’s mother, Yolanda Branch, who told Ms. Garrett that her son, Devonta, had
described an incident involving Defendant and C.G. which had occurred the night before. Ms.
Garrett asked C.G. to tell her what happened. After her conversation with C.G., Ms. Garrett called
C.G.’s father and other family members to ask their advice about how to handle the situation. On
Monday, Ms. Garrett reported the incident to the police.

         C.G., who was nine years old at the time of trial, testified that he was seven years old and in
the first grade when the offense occurred. C.G. said that Defendant lived with C.G.’s great-uncle,
and C.G. spent the night at his great-uncle’s house on the day of the offense so that he could play
with Defendant’s grandsons. The children watched cartoons on the television set in the living room
of Defendant’s house. C.G. said that Defendant put a movie into the VCR about “two boys kissing
and stuff.” C.G. told Defendant, “that’s nasty,” because he did not like the movie. Defendant sat
on the couch and watched the movie.

        C.G., Devonta, and Roderrick went into Defendant’s bedroom and found some condoms.
C.G. said that he did not know what condoms were at the time. He and his friends filled some of
the condoms up with water, turning them into water balloons. C.G. said that at some point that
afternoon or evening, Defendant laid down on his bed, pulled his pants down, and put a condom on
his “private part.” C.G. said that Defendant moved his hand up and down on his “private part” while
C.G. watched. C.G. said that he did not know what Defendant was doing.

         Later, C.G., Devonta, Roderrick, and Defendant were in the living room. Defendant was
sitting on the couch. C.G. said that he stood in front of Defendant and pulled his pants down. C.G.
said that he wanted to see what “it” felt like because he had seen “it” on the movie. C.G. said that
Defendant “sucked [his] private part” for a second, and then C.G. backed away from Defendant
because it felt “nasty.” C.G. said that he “didn’t like it.” C.G. said that Defendant did not touch with
his hands either himself or C.G. during the incident. C.G. then clarified that Defendant masturbated
in his bedroom after the incident of fellatio.

        Defendant told C.G. the next morning not to tell his mother what happened. C.G. said that
he did not talk to his mother about the incident until after Ms. Branch telephoned.

       On cross-examination, C.G. said that he did not remember talking to a counselor about the
incident, or telling the counselor that Devonta or Roderrick, instead of Defendant, put the movie into
the VCR . He also did not remember telling the counselor that Defendant had put his mouth on
Devonta’s and Roderrick’s private parts as well as C.G.’s. C.G. denied at trial that Defendant had


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inappropriately touched anyone else the night of the offense, but he said that the other two boys were
in the living room when the incident occurred.

         Brett Gipson, a detective with the Metro Nashville Police Department, testified that he was
assigned to investigate the incident. Detective Gipson interviewed Devonta and Roderrick Branch
at their respective schools, but he did not interview C.G. Detective Gipson said that the Department
of Children’s services routinely interviewed victims as young as C.G. During a search of
Defendant’s home, police officers discovered two movies depicting homosexual activity, and both
used and packaged condoms, but no physical evidence such as semen. Detective Gipson interviewed
Defendant in his unmarked patrol car while other officers searched his house. Detective Gipson said
that he read Defendant his Miranda rights, and Defendant executed a written waiver of those rights.
Defendant’s tape recorded statement was played to the jury.

        In his statement, Defendant initially denied that he had inappropriately touched C.G.
Defendant said that he had drunk “quite a bit,” “up into a half-gallon” of Canadian Mist liquor, that
night and did not remember anything that happened. Defendant did not remember putting a movie
into the VCR or masturbating in front of C.G. Defendant, however, acknowledged that his
grandsons and C.G. played with water-filled condoms that night. Ultimately, Defendant said, “This
is the first time anything like that happened to me,” and “it’s not going to happen anymore.”
Defendant acknowledged that the incident “was a spur-of-the-moment thing.” He stated that he
knew the incident happened, but he could not remember the details.

       Detective Gipson said that C.G. did not undergo a physical examination because the offense
was reported more than thirty-six hours after it occurred, and C.G. did not display any signs of
physical injury.

         Carlin Giles, a counselor with the Nashville Child Advocacy Center at the time of the
offense, was called as a defense witness. Ms. Giles testified that she interviewed C.G. about a week
after the offense. Ms. Giles said that she avoided the use of leading questions during a minor
victim’s forensic interview, and she encouraged the child to describe what happened in his or her
own words. Ms. Giles said that C.G. initially portrayed himself as a witness to the event rather than
a participant, but he eventually disclosed that Defendant had “sucked” his private part. Ms. Giles
said that she was surprised the seven-year-old victim used the word “sucked,” but in other respects,
C.G. did not display a significant understanding about what had happened to him. Ms. Giles
acknowledged that C.G. told her that Defendant had performed oral sex on Devonta, and that
Roderrick put the movie into the VCR. Ms. Giles acknowledged that her interview summary did not
reflect that C.G. had disclosed to her that Defendant masturbated in front of him.

II. Sufficiency of the Evidence

       Defendant’s challenge to the sufficiency of the convicting evidence essentially questions
C.G.’s credibility as a witness based on the inconsistencies between his testimony at trial and his
responses during Ms. Giles’ interview. When a defendant challenges the sufficiency of the


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convicting evidence, we must review the evidence in a light most favorable to the prosecution in
determining whether a rational trier of fact could have found all the essential elements of the crime
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed.
2d 560 (1979). Once a jury finds a defendant guilty, his or her presumption of innocence is removed
and replaced with a presumption of guilt. State v. Black, 815 S.W.2d 166, 175 (Tenn. 1991). The
defendant has the burden of overcoming this presumption, and the State is entitled to the strongest
legitimate view of the evidence along with all reasonable inferences which may be drawn from that
evidence. Id.; State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). The jury is presumed to have
resolved all conflicts and drawn any reasonable inferences in favor of the State. State v. Sheffield,
676 S.W.2d 542, 547 (Tenn. 1984). Questions concerning the credibility of witnesses, the weight
and value to be given the evidence, and all factual issues raised by the evidence are resolved by the
trier of fact and not this court. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). These rules are
applicable to findings of guilt predicated upon direct evidence, circumstantial evidence, or a
combination of both direct and circumstantial evidence. State v. Matthews, 805 S.W.2d 776, 779
(Tenn. Crim. App. 1990).

        Defendant was convicted of the offense of rape of a child which is defined as “the unlawful
sexual penetration of a victim by the defendant, or the defendant by the victim, if such victim is less
that thirteen (13) years of age.” T.C.A. § 39-13-522(a). “Sexual penetration” includes fellatio,
“however slight.” Id. § 39-13-501(7).

        We acknowledge that Ms. Giles’ testimony highlighted certain inconsistencies between
C.G.’s description of the events leading up to the offense during his interview and the description
presented at trial. However, all questions involving the credibility of the witness, and the resolution
of any conflicts, are left to the trier of fact. State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App.
1987). The jury is in a position to view a witness, hear his or her testimony, and observe the
witness’s demeanor on the stand. By its verdict, the jury obviously accredited the victim’s
testimony. Despite certain inconsistencies in C.G.’s description of the events that night, the victim
clearly testified that Defendant performed oral sex on him in the Defendant’s living room, and that
he was seven years old at the time of the offense. C.G.’s testimony at trial, together with
Defendant’s statement to the police, provide more than sufficient evidence to sustain the conviction.

        Based on our review of the record, we conclude that a rational trier of fact could conclude
beyond a reasonable doubt that Defendant is guilty of the offense of rape of a child. Defendant is
not entitled to relief on this issue.

III. Jury Instructions

        Defendant argues that the trial court’s instructions to the jury failed to clearly define the mens
rea requirement for the sexual penetration element of the offense of rape of a child. Defendant
contends that by including the mental state of recklessness in its charge, the instructions served to
lessen the State’s burden of proof because the element of sexual penetration requires either an
intentional or a knowing mens rea. The State argues that Defendant has waived this issue by not


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objecting to the trial court’s jury instructions, and by failing to raise the issue of improper jury
instructions in his motion for new trial. Regardless of whether or not Defendant waived this issue,
we find no error in the trial court’s instructions to the jury in the case sub judice.

       In criminal cases, a defendant has a right to a correct and complete charge of the law. State
v. Garrison, 40 S.W.3d 426, 432 (Tenn. 2000). The material elements of the charged offense should
be described and defined in connection with that offense. State v. Ducker, 27 S.W.3d 889, 899
(Tenn. 2000); State v. Craven, 764 S.W.2d 754, 756 (Tenn. 1989). The failure to do so deprives the
defendant of the constitutional right to a jury trial and subjects the erroneous jury instruction to
harmless error analysis. Garrison, 40 S.W.3d at 433-34. A jury instruction, however, must be
reviewed in its entirety and read as a whole rather than in isolation. State v. Leach, 148 S.W.3d 42,
58 (Tenn. 2004). “An instruction should be considered prejudicially erroneous only if the jury
charge, when read as a whole, fails to fairly submit the legal issues or misleads the jury as to the
applicable law.” State v. Faulkner, 154 S.W.3d 48, 58 (Tenn. 2005) (citing State v. Vann, 976
S.W.2d 93, 101 (Tenn. 1998)).

       The trial court in the case sub judice instructed the jury as follows:

       Count one, rape of a child; any person who commits the offense of rape of a child is
       guilty of a crime. For you to find the defendant guilty of this offense, the State must
       have proven beyond a reasonable doubt the existence of the following essential
       elements: one, that the defendant had unlawful sexual penetration of [C.G.] or [C.G.]
       had unlawful sexual penetration of the defendant; and two, that [C.G.] was less than
       thirteen years of age; and three, that the defendant acted either intentionally,
       knowingly or recklessly.

       The trial court then defined the culpable mental states of intentional, knowingly and
recklessly as follows:

       Intentionally, as used in the offense of rape of a child, means that the defendant acts
       with a conscious objective or desire to engage in sexual conduct with [C.G.] and that
       the defendant’s acts [sic] was a conscious objective or desire that a penetration result
       from the sexual contact – conduct with [C.G.].

       Knowingly, as used in the offense of rape of a child, means that the defendant was
       aware that he was engaging in sexual conduct with [C.G.], that he is aware his
       conduct is reasonably certain to result in the penetration of [C.G.], or the penetration
       of him by [C.G.], and that [C.G.] was less than thirteen years of age.

       Recklessly, as used in the offense of rape of a child, means that the defendant acts
       recklessly when he is aware of, but consciously disregards a substantial and
       unjustifiable risk that [C.G.] is less than thirteen years of age, and that penetration
       will occur as a result of the sexual conduct.


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         Relying primarily on State v. Weltha Womack, No. E2003-02332-CCA-R3-CD, 2005 WL
17428 (Tenn. Crim. App., at Knoxville, Jan. 4, 2005), no perm. to appeal filed, Defendant argues
that the trial court’s instructions erroneously failed to distinguish between the separate mental states
required for the element of sexual penetration and the element of the victim’s age. In Weltha
Womack, the trial court included the mental state of recklessness within its instructions to the jury
on the offense of aggravated rape. Because aggravated rape is a nature of the conduct offense
requiring proof that the defendant acted either intentionally or knowingly, the Womack court
concluded that the inclusion of recklessness in the definition of applicable mental states lessened
the State’s burden of proof as to the element of sexual penetration. Under the facts presented in that
case, the Womack court concluded that the instruction error was not harmless beyond a reasonable
doubt and reversed the defendant’s conviction.

        We begin by noting that the offense of rape of a child does not specify a mental state in its
statutory definition. See T.C.A. § 39-13-522. Where a statutory definition “does not plainly
dispense with a mental element, intent, knowledge or recklessness suffices to establish the culpable
mental state.” T.C.A. § 39-11-301(c). See, e.g. State v. Barney, 986 S.W.2d 545, 550 (Tenn. 1999)
(“Rape of a child requires sexual penetration of the victim, and the mental state required may range
from intentional to knowing or reckless.”); State v. Hill, 954 S.W.2d 725, 729 (Tenn. 1997)
(“Obviously, the act for which the defendant is indicted, ‘unlawfully sexual[ly] penetrat[ing]’ a
person under the age of thirteen, is committable only if the principal actor’s mens rea is intentional,
knowing or reckless”).

        In Tennessee, the culpable mental states are defined in relation to three possible conduct
elements of an offense, which may be found singly or in combination with one another within an
offense’s statutory definition. See T.C.A. § 39-11-302. These “conduct elements” include the nature
of the conduct, the circumstances surrounding the conduct, and the result of the conduct. See T.C.A.
§ 39-11-201(a)(1). The first element, nature of the conduct, involves the proscribed act or the
manner in which the defendant acts; the second element, circumstances of the offense, refers to a
situation which relates to the defendant’s culpability; and the third element, result of the conduct,
requires that the defendant’s conduct must at least be a physical cause of the harmful result. Weltha
Womack, 2005 WL 17428, at *8.

        Based upon the statutory definition of culpable mental states, “intentional” refers to the
nature of the conduct or to a result of the conduct; “knowing” refers to the nature of the conduct, the
circumstances surrounding the conduct, or the result of the conduct; and “reckless” refers to the
result of the conduct or to the circumstances surrounding the conduct, but not to the nature of the
conduct. See T.C.A. § 39-11-302(a), (b), and (c).

       In State v. Chester Wayne Walters, No. M2003-03019-CCA-R3-CD, 2004 WL 2726034, at
*13 (Tenn. Crim. App., at Nashville, No. 30, 2004), perm. to app. denied (Tenn. Mar. 21, 2005) a
panel of this Court concluded that the offense of rape of a child contains all three conduct elements.
See also State v. Leon Tucker, No. M2005-00839-CCA-R3-CD, 2006 WL 547991, at *12 (Tenn.
Crim. App., at Nashville, Mar. 7, 2006), no perm. to appeal filed. The element of unlawful sexual


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penetration contains two conduct elements: nature of the conduct and result of the conduct. Chester
Wayne Walters, 2004 WL 2726034, at *13. A victim’s age is a circumstance surrounding the
conduct. Id. (citing State v. Deji A. Ogundiya, No. M2002-03099-CCA-R3-CD, 2004 WL 315138,
at 6 (Tenn. Crim. App., at Nashville, Feb. 19, 2004), no perm. to appeal filed). Applying the
foregoing to the case sub judice, the requisite culpable mental states for unlawful sexual penetration,
both a nature-of-conduct and result-of-conduct offense, is either intentional or knowing; the requisite
culpable mental states pertaining to the of victim’s age, a circumstance of the offense, are knowing
or reckless.

        Based on the foregoing, we find no error in the trial court’s instructions to the jury on the
offense of rape of a child. The initial charge to the jury setting forth the material elements of the
offense of rape of a child did not assign a specific mental state to the elements. The trial court
separately defined the mental states of intentionally, knowingly, and recklessly and correctly
identified the material element to which the individual mental state related. The instruction
specifically limited the reckless mens rea to the circumstances of the offense. In the case sub judice,
the entire charge to the jury on the offense of rape of a child fairly defined the issues of law and did
not mislead the jury. See Frederick Leon Tucker, 2006 WL 547991, at *13 (finding no error in trial
court’s instructions to the jury on the offense of rape of a child when no specific mental state was
assigned to the definition of rape of child, and the trial court separately defined the mental states of
intentionally, knowingly, and recklessly). Defendant is not entitled to relief on this issue.

                                          CONCLUSION

       After a thorough review, we affirm the judgment of the trial court.


                                                        ___________________________________
                                                        THOMAS T. WOODALL, JUDGE




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