        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT NASHVILLE            FILED
                       MARCH SESSION , 1998         April 30, 1998

                                                Cecil W. Crowson
STATE OF TENNESSEE,        )                  Appellate Court Clerk
                               C.C.A. NO. 01C01-9704-CC-00127
                           )
      Appellee,            )
                           )
                           )   ROBERTSON COU NTY
VS.                        )
                           )   HON. ROBERT W. WEDEMEYER
GARRETT RAINES,            )   JUDGE
                           )
      Appe llant.          )   (Rape of a Child)


                ON APPEAL FROM THE JUDGMENT OF THE
                CIRCUIT COURT OF ROBERTSON CO UNTY


FOR THE APPELLANT:             FOR THE APPELLEE:

MICHAEL R. JONES               JOHN KNOX WALKUP
Public Defender                Attorney General and Reporter

                               DARYL J. BRAND
                               Assistant Attorney General
                               425 5th Avenu e North
                               Nashville, TN 37243-0493

                               JOHN CARNEY
                               District Attorney General

                               DENT MORRISS
                               Assistant District Attorney General
                               500 Souty Main Street
                               Springfield, TN 37172



OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                              OPINION

         The Defen dant, Garrett Raines, appeals as of right pursuant to Rule 3 of

the Tenn essee Rules o f Appella te Proce dure. He was convicted by a Robertson

Coun ty jury of rape of a child.1 The trial court sen tenced him to sixteen years

imprisonment with the Department of Correction. In this appeal, the Defendant

argues that the trial cou rt erred in determining that the child-victim was competent

to testify and that the evidenc e was leg ally insufficien t to suppo rt the verdict. W e

affirm the ju dgme nt of the trial co urt.



         W e begin with a summary of the pertinent facts. The State offered the

testimony of three individuals a t trial: Jackie A dams , the wife of th e Defe ndant;

B.A., the victim; and Julie Rosof, an employee of the Our Kids Clinic who

examined B.A. after the commission of the offense.2 The testimony of Jackie

Adams principally concerned family background information. At the time of the

offense, the Defendant had been married to Adams for approximately two and a

half yea rs. Th e victim in this ca se, fou r-year- old B.A., was Adams’ child from a

previous relationship. Adams also had a child by the Defendant and, at the time

of the offense, was pregna nt with the Defendant’s second child. Adams’ child by

the Defendant was nearly three years old at the time of the offe nse. T he fam ily

lived at Lemley Trailer Park from January of 1995 through early March of 1995.

During January and early February, 1995, the Defendant worked various

construction-related jobs with his ste pfathe r. Jack ie Ada ms d id not w ork wh ile

         1
             Tenn. Code Ann. § 39-13-522.

         2
           It is the policy of this Court no t to refer to m inor victim s of sex ual abus e offens es by nam e.
Acc ordin gly, we will refe r to the victim in this c ase as “B .A.” o r sim ply as “ the vic tim” throu gho ut this
opinion.

                                                         -2-
the Defen dant wa s emp loyed. Du ring the latte r part of February, 1995, the

Defendant was not working. As a result, Jackie Adams began working a 7:00

a.m. to 3:00 p.m. shift at McDonald’s.



       Jack ie Adam s testified further that s he no ticed a chan ge in th e victim ’s

behavior beginning in April, 1995. She stated that the victim began exhibiting

anger and was essentially “mad at the world.” On cross-examination, Adams

identified Richard Holt as a friend of the family with whom her children had spent

the night on several occasions. Adams admitted that it was possible her children

may have seen x-rated movies on those occasions.



       B.A., five years old at the time of trial, testified that he remembered living

in a trailer with the Defendant and sharing a room with his stepbrother. B.A.

stated that on one occasion, while his mother was at work, the Defendant “stuck

his pig in my m outh.” Up on furthe r question ing, B.A . identif ied “pig” as the

Defe ndan t’s “private.” B.A. testified further that the Defendant “told me the stuff

that cam e out o f his pig was mayonnaise.” On this occasion, B.A. stated that he

was in bed with h is clothes o ff and that th e Defe ndant h ad his clo thes off as we ll.

B.A. testified that he did not tell anyone about the incident immediately afterwards

because it was a secret. Eventually he told his mother about the incident and

they moved out of the trailer.          On cross-examination, B.A. identified the

Defendant as his “ Dad dy,” sta ted tha t he love d his D addy a nd tha t he wa nted h is

Daddy to come home.



       The only other witness to testify for the State was Julie Rosof. Rosof was

an employee of the O ur Kids Clinic a nd, on April 10, 1995, conducted a physical

                                           -3-
examination of B.A. in response to a report of possible sexual abuse. Rosof

testified that B.A.’s physical evaluation was normal and that it revealed nothing

to indicate sexual abuse. Rosof stated, however, that she w ould no t expect to

find evidence of oral penetration and ejaculation once several hours had passed

from the time of the incident.



      The Defendant, thirty-three years old at the time of trial, testified in his own

defense. He stated tha t he began living with B.A. when th e child was on ly five

months old. The Defendant denied ever having had sexual contact with the

victim. On cross-examination, he admitted that he had been convicted of larceny

from the person in Davidson County Criminal Court on July 26, 1984.



      The Defendant was indicted on July 27, 1995. Included in the indictment

were four cou nts: two for rape of a c hild and two for ag gravated sexu al battery.

The two aggravated sexual battery counts were dismissed, with the agreement

of the State, immed iately prior to trial. The Defen dant was tried from February

12 to February 13, 1996. One count of rape of a child was dismissed after the

completion of the presentation of proof at trial, again with the agreement of the

State. The remaining count of the indictm ent cha rged the Defen dant with rape

of a child during Fe bruary, 1995. After considering the proof prese nted a t trial,

the jury found the Defendant guilty as charged.



      In his first issue on appeal, the Defendant argues that the trial court erred

in determining that B.A. was competent to testify. As we stated above, B.A. was

five years o ld at the tim e of trial. The Defendant contends that the record does

not demonstrate that B.A. understood the nature of his oath. As a result, he

                                         -4-
argues that the trial judge a bused his discre tion in finding B.A. com petent to

testify.



       Rules 601 and 603 of the Tennessee Rules of Evidence provide guidance

regarding issues of competency of witnesses to testify. Rule 601 states that

“[e]very person is presumed competent to be a witness except as otherwise

provided in these rules or by statute.” Tenn. R. Evid. 601. Rule 603 provides

that “[b]efore testifying, eve ry witness shall be re quired to declare that the witness

will testify truthfully by oath or affirmation, administered in a form calculated to

awaken the witness’s conscie nce an d impre ss the witn ess’s m ind with the duty

to do so.” Tenn. R. Evid. 603.



       In the case sub judice, the Defe ndant d oes no t sugge st that a sta tute or

another rule of evidence alters the application of the presumption of competence

afforded B.A. by the operatio n of Rule 601. W ith regard to determinations o f a

child’s competency to testify, our supreme court has stated the following:

       W h en examining a child’s c omp etenc y to testify a judg e sho uld
       determine whether the child understands the nature and meaning of
       an oath, has the intelligence to understand the subject matter of the
       testimony, and is capable of relating th e facts accura tely.

State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993) (citing State v. Fears , 659

S.W.2d 370 (Tenn. Crim. App . 1983)). In addition, the question of competency

to testify is a matter entrusted to the sound discretion of the trial judge, who has

the opportunity to observe the witness firsthand, and that discretion will not be

disturbed on app eal abse nt abus e. State v. Caughron, 855 S.W.2d 526, 538

(Tenn. 1993), cert. denied, 510 U.S. 979, 11 4 S.Ct. 475, 126 L.E d.2d 426 (19 93);

State v. Howa rd, 926 S.W .2d 579, 584 (Tenn. Crim . App. 1996 ).


                                          -5-
       In the pre sent c ase, th e trial court questioned B.A. during a jury-out

hearing.    During this questioning, B.A. stated that he knew the difference

between telling the truth and telling a lie. To tes t this statemen t, the trial judge

asked B.A. simple questions regarding statements about a red piece of clothing.

The trial judge asked B.A. if stating the clothing was blue would be the truth or a

lie, and B.A. respo nded the sta teme nt wou ld be a lie. The trial judge next asked

B.A. if stating the clothing was red would be the truth or a lie, and B.A. responded

the statement would be the truth. U pon fu rther q uestio ning, B .A. state d that it

was be tter to tell the truth than to tell a lie and that if he did not tell the truth, he

would go to jail. B.A . testified that g oing to jail wa s a bad thing and that he did

not want to go to jail. Thus, B.A. stated that he was going to tell the truth when

asked questions by the attorneys at trial. After hearing B.A.’s testimony, the trial

court found him compe tent to testify.



       From this rec ord, we can o nly conclude that the trial judge did not abuse

his discretion in finding B.A. competent to testify. The purpose of determining

competency of a child witness to testify in sexua l abus e cas es “is to allow a victim

to testify if it can be determined that the child understands the necessity of telling

the truth while on the witne ss stand.” Ballard, 855 S.W.2d at 560. Through

questioning, the trial court determined that B.A. knew the difference between

truth and falsehood and that he intend ed to tell the truth during questioning by the

attorneys at trial.     We believe that the trial court’s colloquy with B.A.

demonstrated that B.A. understood the necessity of telling the truth while on the

witness stand. See Ballard, 855 S.W .2d at 560 ; Howard , 926 S.W.2 d at 584.

According ly, we conclude that the trial court did not err in a llowing the child to

testify. The Defen dant’s first issu e is therefo re withou t merit.

                                           -6-
      In his second issue on ap peal, the Defendant argues that the evidence was

legally insufficient to support the verdict. When an accused challenges the

sufficiency of the convicting evidence, the standard is whether, after reviewing the

evidence in the light most favorable to the prosecution, any rational trier of fact

could have found the essen tial eleme nts of the crim e beyon d a reas onable doubt.

Jackson v. Virgin ia, 443 U.S. 307, 319 (1979).          Questions concerning the

credibility of the witnesses, the weight and value to be g iven the eviden ce, as well

as all factual issues raised by the evidence, are resolved by the trier of fact, not

this court. State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). Nor

may this court re weigh o r reevalua te the evide nce.      State v. Cabbage, 571

S.W .2d 832 , 835 (T enn. 19 78).



      A jury verdict approved by the trial judge accredits the State’s witnesses

and resolves all conflicts in fa vor of the S tate. State v. Grace, 493 S.W.2d 474,

476 (Tenn. 1973). On appeal, the State is entitled to the strongest legitimate

view of the evidence and all inferences therefrom . Cabbage, 571 S.W.2d at 835.

Because a verdict of guilt removes the presumption of innocence and replaces

it with a presumption of guilt, the accused has the burden in this court of

illustrating why the evidence is insufficient to support the verdict returned by the

trier of fact. State v. Tug gle, 639 S.W .2d 913 , 914 (T enn. 1982); Grace, 493

S.W.2d at 476.



      Applying these principles to the case sub judice, we believe that the

evidence was legally sufficient to support the verdicts. Rape of a child is defined

as “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.” Tenn. Code

                                         -7-
Ann. § 39-13-52 2(a). Sexual penetration is defined as “sexual intercourse,

cunnilingus, fellatio, anal inte rcourse , or any oth er intrusion, however slight, of

any part of a person’s body or of any object into the genital or anal openings of

the victim’s, the defendant’s, or any other person’s body, but emission of semen

is not required.” Te nn. Code Ann. § 39-1 3-501(7).



       At trial, B.A. related that the Defendant stuck “his pig in m y mouth .” B.A.

stated that by “pig” he mea nt the Defend ant’s “private,” demo nstrating where the

“private” would be on a toy bear. B.A. testified further that the Defendant “told me

the stuff that came out of his pig was mayonnaise.” As we stated above, a

physic al examination conducted on the victim more than a month after the

alleged incident re vealed n othing to in dicate sexual abuse.         The examiner,

however, stated that she would not expect to find evidence of oral penetration or

ejaculation once several hours had passed. In his own defense, the Defendant

denied ever having had sexual contact with the victim. He also offered evidence

of an alleged recantation by the victim. In particular, the Defendant testified that

he met with Jackie A dams and B.A . after they had moved out of the trailer

following the incident. Th e follow ing co lloquy o ccurre d durin g the D efend ant’s

testimony:

       Q.     And at that me eting at tha t motel, B [.A.] told you that, indeed,
       you had done those things, didn’t he?
       A.     He told me no and then he said yes.
       Q.     Okay -- well, he told you both ways, but at any rate, it was
       clear to you that he was accusing you of that at that time , wasn’t it?
       A.     Yes, sir.

The Defendant contends that, in light of his testimony, the State’s proof was

legally insu fficient to sup port the ve rdict.




                                            -8-
       The proof in the present case posed a credibility question for the jury to

resolve. The victim related an incident of oral penetration, while the Defendant

denied sexual contact. From the verdict, it is clear the jury resolve d the cre dibility

question again st the D efend ant. W hile the De fenda nt’s testimony concerning a

poss ible recantation by the victim was relevant, its impact on the credibility of the

victim’s testimony was a matter to be determined by the jury. Obviously the jury

found the victim’s testimony to be persuasive, even in light of the D efend ant’s

testimony about a possible recantation. From this record, we cannot conclude

that the evidence was legally insufficient to support the jury’s verdict. The

Defen dant’s se cond iss ue is there fore witho ut merit.



       For the reasons set forth in the discussion above, we conclude that the

Defe ndan t’s issues on appeal lack merit. We therefore affirm the judgment of the

trial court.




                                   ____________________________________
                                   DAVID H. WELLES, JUDGE




                                          -9-
CONCUR:



___________________________________
JOSEPH M. TIPTON, JUDGE



___________________________________
JOE G. RILEY, JUDGE




                             -10-
