             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT KNOXVILLE
                                  Assigned on Briefs August 26, 2009

   STATE OF TENNESSEE v. THOMAS CHRISTOPHER HAYES, ALIAS
                    CHRISTOPHER HAYES

                      Appeal from the Criminal Court for Hamilton County
                               No. 257903 Don W. Poole, Judge




                      No. E2009-00218-CCA-R3-CD - Filed March 15, 2010


The Defendant, Thomas Christopher Hayes, appeals as of right his Hamilton County
Criminal Court jury conviction for sexual battery, a Class E felony. The trial court sentenced
the Defendant to four years as a Range II, multiple offender to be served in the Department
of Correction. His sole issue on appeal is whether the evidence is sufficient to support his
conviction. Following our review, we affirm the judgment of the trial court.

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

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which J OSEPH M. T IPTON,
P.J., and C AMILLE R. M CM ULLEN, J., joined.

Benjamin L. McGowan (on appeal), Chattanooga, Tennessee; Ardena Garth, District Public
Defender; and Lorrie Miller, Assistant Public Defender (at trial), attorneys for appellant,
Thomas Christopher Hayes.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney
General; William B. Cox, III, District Attorney General; and Rachel Winfrey, Assistant
District Attorney General, attorneys for appellee, State of Tennessee.

                                                      OPINION

       The victim, C.S.,1 testified that she was fourteen years old at the time of the incident.
She stated that the Defendant was her mother’s ex-boyfriend and the father of her youngest


         1
             It is this court’s policy to refer to victims of sexual abuse by their initials. The victim testified that her
birthdate is October 30, 1991.
sister. The victim testified that the Defendant arrived at the home she shared with her
mother, older sister, and three younger sisters sometime in the early morning hours of
December 27, 2005. The victim recalled that the Defendant was wearing jogging pants that
made noise when he walked so she could hear him walking through her room to get to the
kitchen. Regarding the incident, she testified that

              I could hear his pants. So it woke me up, but I still laid there. So I
       woke and that’s when I could hear him walking back and forth. I thought he
       was gone, but he wasn’t, he was still in the room. So that’s when he got down
       on his knees . . . and I could feel his hands moving up my leg, up my shorts
       and up my underwear to where his finger was touching my vagina and he was
       rubbing me . . . . at first, I wasn’t going to do anything, because I was scared.
       So then that’s when I jumped and I reached for his hand and that’s when he
       grabbed my face and told me to shhh.

The victim stated that the incident lasted “maybe about a minute.” She said after she grabbed
his hand the Defendant asked her for the blanket off one of the beds and “got up and went
in the living room.”

        After the Defendant left the room, she began to cry. The victim recalled that she
never fell back asleep and remembered hearing her mother’s alarm clock go off. She
testified that the Defendant was asleep on the couch when her mother left for work and that
she did not talk to him at all that morning. The victim told her older sister about the incident
who encouraged her to tell their mother when she got home from work later that evening.
The victim denied ever telling anyone that the Defendant touched her breasts. She testified
that she consistently told her sister, her mother, and the investigators that the Defendant
touched, but did not penetrate, her vagina. She also testified that she had no motive to lie
about the incident.

        The victim’s mother, Lashondria M. Taylor, testified that C.S. was fourteen years old
at the time of the incident involving the Defendant. She stated that the Defendant is the
father of the youngest of her five daughters whose ages ranged from four to fifteen when the
offense occurred. She testified that the Defendant would just “pop up” occasionally to see
his daughter when “he didn’t have a place to stay or he was hungry or something like that.”
On December 27, 2005, the Defendant made such a late-night appearance. Ms. Taylor told
him that he could sleep in the recliner in her bedroom. When she awoke to get ready for
work at 6:00 the next morning, she found the Defendant asleep on the living room couch.

       Ms. Taylor testified that when she got home from work at about 8:00 that evening, her
oldest daughter told her that she needed to talk to the victim. Ms. Taylor recalled that C.S.

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“was very uncomfortable and scared” when she told her what had happened. Ms. Taylor
immediately telephoned the police who took the victim’s statement. She testified that the
victim did not seek medical treatment or undergo an examination because she was hesitant
to talk to anyone outside the family or their church about the incident. Ms. Taylor stated that
the victim seems to be “okay” since the offense and that their relationship “had gotten
closer.” She stated that she had not seen the Defendant since the day of the offense.

        Sergeant Rebecca Shelton of the Chattanooga Police Department testified that she
interviewed the victim a few days after the report of the incident. She recalled that the
investigators initially had some difficulty locating the Defendant but that he was eventually
apprehended through the fugitive division of the police department. Sergeant Shelton stated
that the Defendant offered no statement regarding the incident. She also testified that the
mother’s initial report to the police indicated that the Defendant had touched the victim’s
breasts. However, when she interviewed the victim, she consistently reported that he had
touched her vagina.

       Based on this evidence, the jury convicted the Defendant of sexual battery. On
appeal, the Defendant argues that the victim made inconsistent allegations regarding where
she was touched and that this inconsistency renders the evidence insufficient. The State
argues that the jury resolved any issues of credibility by their verdict and that the proof is
sufficient to support the conviction. Following our review, we agree with the State and
affirm the judgment of the trial court.

                                         ANALYSIS

        An appellate court’s standard of review when the defendant questions the sufficiency
of the evidence on appeal is “whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis
in original). The appellate court does not reweigh the evidence; rather, it presumes that the
jury has resolved all conflicts in the testimony and drawn all reasonable inferences from the
evidence in favor of the state. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984);
State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions regarding witness
credibility, conflicts in testimony, and the weight and value to be given to evidence were
resolved by the jury. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). A guilty verdict
removes the presumption of innocence and replaces it with a presumption of guilt, and on
appeal the defendant has the burden of illustrating why the evidence is insufficient to support
the jury’s verdict. Id.; State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). This standard
applies to findings of guilt based upon direct evidence, circumstantial evidence, or a



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combination of both direct and circumstantial evidence. State v. Pendergrass, 13 S.W.3d
389, 392-93 (Tenn. Crim. App. 1999).

       Sexual battery is defined, in relevant part, as “unlawful sexual contact with a victim
by the defendant or the defendant by the victim [and] [t]he sexual contact is accomplished
without the consent of the victim and the defendant knows or has reason to know at the time
of the contact that the victim did not consent.” Tenn. Code Ann. § 39-13-505(a)(2). The
proof in this case established that the Defendant touched the victim’s vagina while he thought
she was asleep. The victim grabbed his hand to stop him and he told her to be quiet. The
victim testified that she consistently reported that the Defendant touched her vagina. The
only contrary evidence was that the victim’s mother reported initially that the Defendant had
touched the victim’s breasts. Any inconsistencies in the evidence presented at trial or issues
regarding credibility of the witnesses were resolved by the jury as was within their province.
Therefore, we conclude that the evidence is sufficient to support the conviction for sexual
battery.

                                      CONCLUSION

       Based upon the foregoing, the judgment of the trial court is affirmed.


                                                   ___________________________________
                                                   D. KELLY THOMAS, JR., JUDGE




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