State of Tennessee v. Roger A. Beu, Jr.

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs September 18, 2012

STATE OF TENNESSEE v. ROGER A. BEU, JR.

Direct Appeal from the Criminal Court for Roane County
No. 14095 Judge E. Eugene Eblen

No. E2012-00176-CCA-R3-CD - Filed December 20, 2012

A Roane County jury convicted the Defendant, Roger A. Beu, Jr., of sexual battery by an
authority figure. The trial court sentenced the Defendant to three years as a Range I, standard
offender, at thirty percent, to serve thirty days in jail, with the balance on probation. On
appeal, the Defendant contends: (1) the trial court erred when it denied his motion for new
trial based on the prosecutor’s improper comments to the jury during closing argument; (2)
the trial court erred when it admitted into evidence the written statement of the victim; and
(3) there is insufficient evidence to support his conviction. After a thorough review of the
record and applicable law, we affirm the judgment of the trial court.

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

R OBERT W. W EDEMEYER, J., delivered the opinion of the court, in which J OHN E VERETT
W ILLIAMS and D. K ELLY T HOMAS, J R., JJ., joined.

Michael R. Giaimo (on appeal), Cookeville, Tennessee, and James A. H. Bell and John
Barnes (at trial), Knoxville, Tennessee, for the appellant, Roger A. Beu, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; Russell Johnson, District Attorney General; Bill Reedy, Assistant District Attorney
General, for the appellee, State of Tennessee.

OPINION

I. Facts
 This case arises from the Defendant’s sexual encounter with the victim,1 who was the
Defendant’s second cousin and fifteen years old at the time of the incident. For his actions,
a Roane County grand jury indicted the Defendant for sexual battery by an authority figure.
At trial, the parties presented the following evidence: B.N.,2 the victim’s mother, testified
that she had two daughters, one, the victim, who was fifteen years old when the incident
occurred in May 2008, and the other who was fourteen. She stated that her husband worked
as a patrol officer with the “T.V.A. police.” She explained that the Defendant was her
husband’s first cousin because the Defendant’s parents are her husband’s aunt and uncle.
The Defendant, with his wife and children, moved from Colorado to Tennessee to care for
the Defendant’s elderly parents. B.N. stated that her family and the Defendant’s family
became “very close knit.” The two families “spent a lot of time” together, especially during
holidays. They also went camping and had “cook outs” together. B.N. stated that, during
the months before the incident, the Defendant lived at his elderly parents’ house during the
week and stayed at his house with his wife and children on the weekends.

B.N. testified that, in May 2008, the Defendant asked the victim to work for him, as
a “summer job,” preparing a PowerPoint presentation for his parents’ fiftieth wedding
anniversary. B.N. stated that the Defendant had asked her and her husband for permission,
stating that he would pay the victim “a little bit” to do the presentation. B.N. expected the
victim’s work on the presentation to take “a month or two because [the] anniversary was in
July.” The Defendant wanted the victim to scan photographs into the computer in order to
create a PowerPoint slide show presentation for the anniversary party. B.N. testified that she
had “no problem” leaving the victim with the Defendant because she “felt [the Defendant]
was the authority figure” and “would oversee everything that she was doing and help her.”
B.N. testified that, up until that time, the Defendant had not “done anything” to make her
“suspicious” about leaving her daughter with him.

B.N. stated that, on Tuesday, May 27, 2008, she took the victim to the Defendant’s
house at approximately 2:30 p.m. for the victim’s first day of work on the project. When they
arrived at the house, the Defendant was outside picking vegetables out of the garden, so B.N.
spoke with him outside by the garden for fifteen or twenty minutes. Then, B.N. left the
victim with the Defendant to work on the project while she went to run errands.

At approximately 5:30 p.m., B.N. returned to pick up the victim. At that time, the
Defendant informed B.N. that he “forgot the scanner,” so he and the victim did not get any

1
To protect the identity of the minor victim, she will be referred to herein solely as “the victim.”
2
Because the victim was a minor at the time of the offense, the victim’s mother and other
members of the victim’s immediate family will be referred to by their initials.

2
work done on the project that day. The Defendant, however, wanted the victim to return the
next day to work on the project. B.N. explained to the Defendant that she would be unable
to bring the victim back to his house until the afternoon of Thursday, May 29, 2008. The
Defendant agreed to the victim returning Thursday to work on the project. B.N. testified that,
after the victim and B.N. left the Defendant’s house, she and the victim had a
“mother/daughter chat.” She stated that, as a result of the talk, “[the victim] said some things
that [B.N.] was in question of.” B.N. stated that, later that evening, they “ate din[n]er and
watched T.V.” and did “[n]ormal family evening things.”

On Thursday, May 29, 2008, the Defendant called B.N. and asked her what time the
victim could come over to scan pictures for the project. B.N. told him that she would bring
the victim to the Defendant’s parent’s house around 2:30 p.m. B.N. testified that she and the
victim arrived at the house at approximately 3:30 p.m. The Defendant had told B.N. to enter
the house through the back door on the lower level of the house. The Defendant also told
B.N. that he had not been feeling good that day, so he decided to leave work early. A woman
named “Susie” had driven him to his parents house, where he was staying.

When B.N. and the victim arrived at the house, the Defendant asked B.N. to check his
blood pressure. B.N. retrieved the Defendant’s parents’ blood pressure kit from upstairs,
checked the Defendant’s blood pressure, and determined it was 180/160. B.N. testified that
she had “[f]irst aid and LPN training,” so the Defendant’s high blood pressure caused her
concern. B.N. asked the Defendant if he had taken his blood pressure medication that day,
and he responded that he had not because he left it at his house. B.N. offered to call the
Defendant’s wife, but the Defendant adamantly told B.N. not to call his wife. Despite the
Defendant’s wishes, B.N. walked outside to her car and called the Defendant’s wife, who
replied that the Defendant had not taken his blood pressure medication for six months. B.N.
then told the Defendant’s wife to call the Defendant’s doctor and request that the doctor
approve a transfer of the Defendant’s prescription to a local Rite-Aid, so B.N. could pick up
the medication and get it to the Defendant.

B.N. recounted that, while she was checking the Defendant’s blood pressure, the
victim was sitting at the bar in the kitchen eating some fast food that they had brought to the
Defendant’s house with them. B.N. said that, after she called the Defendant’s wife, it took
some time for the doctor to transfer the prescription. B.N. testified that she picked up the
medication at 7:00 p.m. and then returned to the house. When she arrived, the Defendant
was sitting in a recliner close to the door and the victim was sitting on the end of the couch
across the room. The two were both watching a soccer game on TV.

B.N. said she informed the Defendant that she had his blood pressure medication. He
asked her how she had gotten it, and she informed him that she had called his wife. The

3
Defendant “jump[ed] up,” and said that he had told her not to call his wife. B.N. said she
informed the Defendant that she was concerned about his blood pressure, and he sat back
down. At that point, the victim, who appeared to be crying, “jumped up and went out the
door.”

B.N. testified that she gave the Defendant a pill, which he took. She told him she had
to wait thirty minutes before she could take his blood pressure again. While the two waited,
they continued watching the college women’s soccer game on TV, and the Defendant
commented on the players of the game, saying that they did not look like girls. The
Defendant stood up and went into his bedroom. When the Defendant returned, B.N. took his
blood pressure, and it had gone down to 140/90.

B.N. said that she discussed with the Defendant that they needed to retrieve his
vehicle, because he left it by the interstate when “Susie” gave him a ride home earlier that
day. She said both her daughters were with her, and she offered to take him to his car. The
Defendant said that, after they got his car, he needed to return to work because he left his
computer turned on and had some work to complete. B.N. told him that he should not do so
and that he needed to rest. The Defendant disregarded her advice.

B.N. recalled that, when they got into her car to take the Defendant to his car, the
victim was sitting behind her in the driver’s side passenger seat. She was turned toward
B.N., and she did not speak to the Defendant during the ride. B.N. said that they followed
the Defendant to his office and waited while he was inside, so they could follow him home.
When the Defendant came out of the office, he said that he would be fine and told them they
did not have to follow him home. B.N. said, at that point, she got onto the interstate and
headed toward the hospital because the victim’s boyfriend had broken his arm.

B.N. testified that, when she returned to the Defendant’s house after getting his
medication, she learned that the victim and the Defendant were again unable to work on the
project. B.N. testified that, on their way from the hospital, the victim told her something that
had happened that day that disturbed her. B.N. said that, when she arrived home, she told
her husband what the victim had told her. The victim, who was crying, also relayed to her
father the events that she said happened earlier.

B.N. said she called the Sheriff’s Department, and a male officer responded. Because
a female officer was unavailable, the officer encouraged them to take photographs of their
daughter. They did not allow her to shower. B.N. said that, on her daughter, were drawn
pictures. There were pictures of stars drawn on her hips and a picture of the shape of a
butterfly drawn on her buttocks. On her daughter’s vagina were drawn the letters “B-G-L-
S.”

4
 During cross-examination, B.N. identified photographs of the Defendant’s parents’
house and the room where he was staying. She said that she knew that the Defendant’s wife
had a new job, but she did not know that this was the reason the Defendant did not want her
to call his wife. Regarding the first day she brought the victim to the Defendant’s house,
B.N. testified that she worked until 1:00 p.m. and then she brought the victim to the
Defendant’s parents’ house. She said she picked her up around 4:00 or 5:00 p.m. She agreed
that, before these allegations, she and her husband were good friends with the Defendant, and
it was not unusual for him to come to their home or for them to talk on the phone. She
agreed that, even after the victim made these allegations, the Defendant came to their home
on several occasions, but she did not answer the door. The Defendant also called her on the
telephone, but she did not speak to him.

B.N. testified that, several days before this incident, she and her husband had
grounded the victim and restricted her use of her cell phone. Also, as part of the victim’s
punishment, they had told her that she was not allowed to go to Dollywood with her best
friend, as she had planned.

B.N. said that she first learned of the victim’s allegations from the victim’s boyfriend.
She explained that the victim went outside the Defendant’s parents’ house to call her
boyfriend after B.N. told the victim that her boyfriend had broken his arm. At that time, the
victim told her boyfriend what had happened. When B.N. saw the victim’s boyfriend at the
hospital later that evening, the victim’s boyfriend told her about the allegations. B.N.
questioned the victim on the way home from the hospital, and the victim reluctantly told her
what had happened. The victim’s boyfriend also called and informed the victim’s father
about these allegations.

The victim testified that, at the time of trial, she was eighteen years old and still living
with her mother, B.N., her father, and her younger sister. She said that, at the time, she was
a senior in high school and participated on the track, basketball, and soccer teams. She also
played soccer for a travel and an international team. The victim testified that, before this
incident, her family was very close with the Defendant’s family and that they spent most
weekends together.

The victim said that, when she was fifteen, the Defendant spoke with the victim’s
father about a summer job for the victim. The Defendant said he would pay the victim
minimum wage to scan pictures for her great aunt and uncle’s 50th wedding anniversary.
The victim said she was excited about this opportunity because, she “was 15 and about to
turn 16 and get my license and I needed gas money.” Further, she said she was familiar with
computers and felt confident she could do the task.

5
 The victim recalled that the first time that she went to the Defendant’s house to work
was Tuesday, May 27, a week before the incident involved in this case. Her mother picked
her up from basketball practice and brought her to the Defendant’s house. When they
arrived, the Defendant was in his vegetable garden. He went inside with the victim and B.N.,
and they had “casual conversation” until B.N. left about thirty minutes later.

The victim said that, after her mother left, the Defendant went into the kitchen to
prepare something to eat. He asked her if she wanted anything, and she said “no” she was
“fine.” The Defendant said “well you’re so skinny are you sure you don’t want anything to
eat?” The victim said she made a joke about how she could go days without eating, and the
Defendant continued to make comments about how she was “so skinny” and “so ripped.”
The victim said she explained that she participated in so many sports that it kept her in shape.
The Defendant said, “raise your shirt up for me.” The victim said she said “what?” and the
Defendant told her to raise her shirt up for him. The victim said she told the Defendant “no”
and he said “yeah, just a little.” The victim said she raised it up a small amount, and the
Defendant ran his finger across her stomach.

The victim testified that the Defendant asked her what kind of exercises she did to
maintain her physique. He then said he knew a “bunch of different types of crunches” that
would make her more fit. The Defendant told the victim, who was wearing sagging
basketball shorts and a T-shirt, that she looked “like a butch.” The victim said she
commented “I guess I do” because her clothing was a little big for her.

The victim said, after this conversation, the two went downstairs, and the Defendant
began telling her about workouts, and he lay down on the floor. She asked him why he was
on the floor, and he said he was going to show her some workouts. The victim said she got
on the floor with him, and she began to do the crunches he showed her. The Defendant then
put a pillow under her back and said, “[N]ow do you feel it.” The victim said that she told
him that she did, and he put his hands on her sides and said “do you feel it here?”

The victim said that, shortly after this, she got up and sat on the couch. She asked the
Defendant about the work that she was supposed to do for him, and he told her that he did
not have the printer or the other items necessary for her to work. The two talked together
“normally,” and the victim asked the Defendant if he would call her mother to come and get
her. He called B.N. shortly thereafter.

The victim said she did not go to the Defendant’s house that Wednesday because her
sister had a cheerleading competition. On Thursday, the Defendant called B.N. and asked
if the victim was going to come to his house to work. The victim said that B.N. picked her
up from home, took her to Sonic to get something to eat, and then took her to the Defendant’s

6
house. When they arrived, the Defendant appeared sick.

The victim confirmed her mother’s testimony about the events that occurred shortly
after they arrived. She added that, while B.N. was taking the Defendant’s blood pressure,
the victim sat down to eat her dinner while she wrote a note to her boyfriend. The victim said
that B.N. left to go get the Defendant’s blood pressure medicine, and asked the victim to
watch the Defendant. The victim said that, ten minutes after her mother left, the Defendant
leaned up on the couch where he had been lying and asked her what she was doing. She told
him that she was eating, and the Defendant went back to sleep. The victim said, after she
finished writing her note, she put the note in her pocket, and finished eating. She then put
all her trash in a bag and walked to the back bedroom where there was a computer, intending
to play computer games.

The victim testified that she began playing solitaire on the computer. She said she did
not lean back in the computer chair because the Defendant’s shirt was hanging on the back
of the chair. After about ten minutes, the Defendant, who she thought was sleeping,
“grabbed [her] shoulder” and asked “what are you doing in here?” The victim said she was
“startled” because she did not know he was awake. She explained that she was playing
solitaire, and the Defendant said that he could have moved his shirt for her if she had asked
him. The victim said she told him the shirt was not bothering her. The Defendant removed
his shirt anyway and put it in his closet. The victim said she asked if they were going to work
on the project, and the Defendant said that they could not because he did not have the right
scanner.

The victim said that the Defendant then said to her, “I know how to make you look
like a real butch,” and the victim said, “[W]hat?” The Defendant repeated himself, and told
her to put on a pair of his khaki pants. The victim said she “play[ed] along” with the
Defendant and, after he left the room, she put on his pants. She said, as she was putting on
his pants, she thought she saw him looking through the hinges of the door at her. She said
she felt “awkward[],” but she opened the door and made a joke about the pants, which were
way too big. The Defendant “grabbed the front belt loops” of the pants and held the pants
completely opened and looked down her pants. She said he kept trying to pull the pants back,
and she finally jerked them away from him. The Defendant then went to his closet and
retrieved a white collared shirt, saying he was going to make her look like “even more of a
butch.” He told her to “lose the blue” shirt she was wearing and to put on the white shirt.
The victim said she told the Defendant no, but he mentioned she had a sports bra on and that
she should change. The victim said she waited for the Defendant to leave the room, but he
never did. The victim said she was “scared honestly because she didn’t know what to
expect.”

7
 The victim testified that she held one hand on her hip trying to hold the pants up and
trying to take off her shirt at the same time. The Defendant “grabbed [her] pants and held
them open and [she] tried to pull them back again and he held them for her.” The victim
said, finally, she just took off the shirt and put on the white shirt. As she did, the Defendant
dropped the pants, and the victim had to grab them quickly before they hit the ground.

The victim said that, as she grabbed the pants and held them, the Defendant tied up
her shirt in the front under her sports bra. He told her that now she looked like a “real
butch,” and he placed his hand on her back directing her toward the bathroom. The
Defendant then said, “[T]here’s something to make you look even more butch.” The victim
said she agreed, and she said “I guess pop my collar.” The Defendant said, “yeah, pop your
collar.” The Defendant then told the victim to go back into the bedroom. The victim said
she was standing in the room still in the Defendant’s clothes when he asked her if she wanted
a tattoo. She said, yes, when she got older, and the Defendant asked her what kind she
wanted. The victim explained that she wanted stars on her hips and something on her back.

The victim testified that the Defendant reached for a pen, made sure it worked, and
then asked her where she wanted her tattoos. She said he asked her if she wanted the stars
on her “inner hips” or her “outer hips.” The victim told the Defendant that she wanted her
real tattoos on her “inner hips” but she was not sure. The victim said the Defendant leaned
down and drew a star on her left hip and then he said “there.” The victim told the Defendant
“yeah, it’s cute.” The Defendant then told her to lay on the bed face down. He said “step on
into Roger’s Tattoo Parlor,” and the victim laid on the bed. The Defendant kept pulling the
pants farther and farther down, and he said “these things are always in the way.” He pulled
the pants down to her panty line on her back and started drawing. He then said the pants
were getting in the way, and he “jerked the pants off.” The victim said, at this point, she was
laying on the bed face down with only her panties on.

The victim said she kept feeling the pen go “lower and lower” and that the Defendant
kept lowering her panties. He made the comment that he was drawing a butterfly. The
victim said her face was in the pillow and she was “shaking and . . . starting to cry.” The
victim said she felt the Defendant’s drawing “half way down [her] backside.” The next thing
she knew, the Defendant told her that the back was done and told her to turn over. She
complied with his request, and he told her to cover her face. The victim said she was crying
and told him “no.” He again told her to cover her face, so she placed her hands over her face.
The Defendant told her that that was not good enough, and he threw his khaki pants over her
face and hands, which were still covering her face. The victim said she was “crying” and
“shaking.”

The victim testified that the Defendant told her that he was going to draw the letters

8
B-G-L-S. She asked him what it meant, and he told her it meant “Bad Girl Lesbian Slave.”
The Defendant explained that the “bad girl” was because of her past, and she told him that
her past had nothing to do with this. The Defendant then told her the “lesbian” part was
because she looked like “a butch.” The victim said she did not say anything, and the
Defendant then told her that the “slave” was because she was his “little work slave.” The
Defendant drew these letters across her lower stomach towards her private area. The victim
said she continued to cry, and the Defendant told her that it was “okay” and that he was “not
going to hurt [her].” The Defendant kept lowering her panties to draw and then he jerked
them completely off of her. The victim said that she jumped off the bed on the opposite side,
and the Defendant reached for her. He said it was “okay,” and the victim told him “no,” that
it was too weird and that she was scared.

The victim said the Defendant unlocked the door, and she grabbed her clothes, put on
her panties, and went toward the bathroom, shutting the door behind her. The Defendant
opened the door and said “it’s okay,” and then told her to sit on the counter and lean back
against the mirror. The victim told the Defendant “no,” but the Defendant kept moving
closer, so she got up on the counter. The victim said she was sitting there, and the Defendant
put his body on her knees so she could not go anywhere as she was pinned against the
bathroom wall.

The victim testified that the Defendant shut the door, started talking, and started
moving her panties down to mid-thigh. He then began drawing with the pen, this time on her
“private area.” The victim said the Defendant had his right hand touching her vagina and his
left hand on the inside of her thigh. The victim said she was crying and shaking and asked
him to stop. He told her that, “technically” he was not her uncle but was her second cousin.
The victim said she kept crying and that all she “could do was look at the ceiling.” The
Defendant told her to put her hand on his shoulder, and then he placed her hand on his
shoulder. She said she tried to move her hand but he had his arm blocking it. The victim
said she continued crying and “begging” the Defendant to stop. The victim said she was
eventually able to pull up her underwear, and she was sitting on the counter crying. The
Defendant told her that he would “finish” when she was “not being so scared.” The
Defendant picked her up off the counter and set her down. The victim said she grabbed her
clothing again, opened the door, walked back in the bedroom, and changed into her clothes.

The victim said she sat down at the computer and began listening to music. The
Defendant asked her if everything was okay, and she said yes. The victim said the Defendant
then heard someone talking, and he said, “I think someone’s here.” The Defendant went into
the bathroom, and she heard running water. The Defendant then came back into the room,
turned off the light, and wiped her back and across her hips with a wet rag, saying he did not
want anyone to know. The Defendant told the victim that this was their “little secret,” and

9
he shut the door.

The victim said she heard the Defendant talking to another man, Steven Collins, who
was a friend of the Defendant’s family. She heard Collins ask who was in there, and the
Defendant responded that it was just his niece and that the two were doing some work. The
victim said that, shortly thereafter, the Defendant returned, turned the light on, and laid
across the bed. He asked the victim to come onto the bed so that they could talk. The victim
initially refused, but then she went and sat on the “very end corner” of the bed. The
Defendant “kept scooting closer” to her and, every time that he did, the victim scooted
further away. The Defendant then asked her again if everything was okay, and he said, “I bet
that’s not the craziest thing you’ve done all week.”

The victim testified that the Defendant then started talking about dominatrixes,
women who give men pain for their pleasure. The Defendant asked the victim if she would
be the submissive type or the aggressive type. The victim said she did not respond. The
Defendant said he thought she would be the aggressive type because she played so many
sports. The victim again did not respond. The Defendant turned the conversation toward
piercing, and he began saying how men and women pierced their private areas to give each
other more pleasure. The victim said she “just sat there.” The Defendant then asked the
victim if she and her boyfriend had engaged in sex, and the victim responded that they had
not. The Defendant asked if the two had done “oral things,” and the victim asked “like
what?” The Defendant asked if they had “fingered each other” or used their mouths on each
other. The victim responded that, no, they did not do that.

The victim testified that the Defendant told her that her boyfriend did not love her and
that her boyfriend only wanted “to - - [her].” The victim told the Defendant that her
boyfriend had nothing to do with this. The Defendant told the victim that there was no way
that her boyfriend would love her “like this,” and the victim responded that her boyfriend did
love her. The Defendant said repeatedly that, no, he did not, and that he just wanted to “- -
her.” The victim said she started to “break down and cry,” and she could not talk about it any
more.

The victim said the Defendant then told her that he was having back pain, and he
asked her to massage his back. The victim complied, and the Defendant said that if she heard
him “moan and chirp” it was because he liked it. The victim said she rubbed his back for a
short period and asked if that was good enough, and the Defendant said “oh yeah, that’s
good.” The victim stopped rubbing his back, and the Defendant said, “oh, I meant like it felt
good.” The victim said she went to sit back in the chair near the computer desk. The
Defendant, at this point, heard someone again and said, “I hope it’s not Jan [his neighbor],
she just comes in here and sits and talks the whole time.” The Defendant turned off the lights

10
and told the victim to be quiet. Jan came in to feed the dogs, and the victim said she kept
making a “coughing noise,” so someone would hear her. The Defendant repeatedly told the
victim to be quiet.

Jan left, and the Defendant turned the lights back on and left the room. The victim
said she was “still crying because everything was just so awkward and [she] was scared
because [she] didn’t know what to expect.” At some point, while she was sitting in the chair
at the desk, the Defendant asked her if she shaved her private areas, and the victim said she
did not respond. He said, “by the looks of it, it looks like you do.” He then asked her if she
shaved with an electric razor, and the victim eventually responded that she shaved with a
regular razor, she “guess[ed].” The Defendant said that it looked like a regular one because
it looked so “painful” and he offered to shave the area for her. The victim said she did not
respond.

The Defendant went to the main room and turned on the television and asked her to
check his blood pressure. The victim said she had to bend over in order to plug in the blood
pressure cuff, and, as she did, the Defendant made an “ummmmmm” noise. The victim said
she gave the Defendant an angry look, placed the cuff on his arm, pressed the button and
walked away. The Defendant then turned on the television and started talking about soccer.
He told the victim he wanted to ask her a question, and he began talking about how athletes
pose for nude calendars to make money. The Defendant then said, “I bet you would look
good in a nude calendar.” The victim said she just walked back into the other room and
asked the Defendant to call her mom.

The victim said she gathered all of her things, threw away her trash from dinner, and
sat down on the far end of the couch waiting for her mother to come. The Defendant, she
said, kept talking about the girls who were playing soccer on television, saying how they
were “so built.” The victim said that, as soon as her mother arrived, she ran outside to the
car and borrowed her sister’s cell phone to call her boyfriend. After he repeatedly asked her
what was wrong, she told him what had happened without giving him all of the details. Her
boyfriend told her that he was calling her father.

The victim said that her boyfriend called her father, told him what had happened, and
then called her and told her that she needed to also tell her mom what had happened. The
victim told her boyfriend she did not want to go back into the house where her mother was
still with the Defendant. The victim’s boyfriend informed her that he had broken his arm and
was at the hospital. The victim said she went back into the house and told B.N. that they had
to leave, asking if they could go to the hospital. B.N. agreed to take her there, and came
outside. The Defendant came with her mother and offered to go with them to the hospital.
B.N. told the Defendant she would take him to his car. The victim said that, during the ride,

11
the Defendant kept turning around and speaking to her, inquiring about her basketball
schedule. She said she handed him a copy of her schedule. The victim said she did not make
eye contact with the Defendant and instead looked out the car window.

The victim testified that they dropped the Defendant off at his car and then went to
the hospital. Her boyfriend was still outside the ER, having not yet been seen by doctors.
He asked her if she had told her mother, and she said “no” and asked him not to worry. The
victim said she waited while doctors put her boyfriend’s arm in a cast and a sling. When he
came out of the hospital, the victim was speaking to her father and uncle, and the victim’s
boyfriend took the victim’s mother aside and told her that she had to talk to the victim
because something had happened to her. The victim’s boyfriend briefly told her mother what
had happened, and the two called the victim over to talk with them. B.N. asked the victim
if her boyfriend’s story was accurate, and the victim, who was crying again, said “yes.” She
then lifted her shirt and showed her the drawings, and B.N. began crying also.

The victim said that, on the way home from the hospital, she told her mother about the
Defendant’s actions, and her mother said she must tell her father. The victim said, after she
arrived home, she did not want to speak to her father because she was upset. After some
coaxing, she told her father the whole story. Her father began crying and went to his room
and got his gun. They both encouraged him not to use his gun, and he said they had to call
the police. The victim asked if she could shower, and her father said not to until they had
spoken with police. The officer arrived, and because he was male, he asked the victim’s
parents to take photographs of the places on her body upon which the Defendant had drawn.
The victim then gave a statement to the officer. The photographs were admitted into
evidence and shown to the jury.

During cross-examination, the victim agreed that she had told her story multiple times,
including to her parents, a police officer, a DCS worker, and also to the State’s attorney, and
she agreed that she was “prepared” to give her testimony. The victim agreed that the
Defendant was of “wide girth.” The victim also agreed that the Defendant’s blood pressure
was so high when they arrived that B.N. went to get him his medicine and that it was during
the time that she was gone that these events occurred. She confirmed that she had testified
that the Defendant picked her up off the bathroom counter at one point during this encounter.

The victim agreed that the police officer investigating this case did not refer her to a
detective, take her to the hospital for photographs to be taken, or ask EMS to come and
evaluate her. The victim testified that she did not give police officers any items of her
clothing and that she did not have the pen that the Defendant used to write on her. She
agreed that the officer never asked her for her cell phone records or the cell phone records

12
of her parents, sister, or boyfriend.

The victim agreed that she had lied to her parents before. On one such occasion, she
had snuck out of the house and broken a window when she tried to re-enter the house
undetected. She called the police and lied, telling them that there had been a burglary. The
victim agreed she maintained this story until she was confronted with forensic evidence to
the contrary.

The victim agreed that the day that these events took place she had planned to go to
Dollywood with her friend from Japan before her friend returned to Japan. She denied that
her parents denied her permission to go as a punishment and said, instead, she decided to stay
and work for the Defendant because she wanted the money.

The victim agreed that, in her videotaped interview with DCS, she said that she felt
like she looked like a lesbian and “butchy” when she went to the Defendant’s house. She
also told DCS during that interview that she did not want the Defendant to wash off the
writing because she thought it would help people believe her and know that what she was
saying was not a lie.

During redirect examination, the victim explained that the sneaking out of her house
incident occurred almost two years before this incident. She said that her father was home
when she left, and the door was unlocked, but that he left and locked the door before she
returned. She accidently broke her window when she snuck back into her house. She said
that she told her mother that someone had broken into the house. A few months passed and
her “guilt got to her,” and she told her parents the truth.

Based upon this evidence, the jury convicted the Defendant of sexual battery by an
authority figure.

II. Analysis

On appeal, the Defendant contends: (1) the trial court erred when it denied his motion
for new trial based on the prosecutor’s improper comments to the jury during closing
argument; (2) the trial court erred when it admitted into evidence the written statement of the
victim; and (3) there is insufficient evidence to support his conviction.

A. Prosecutorial Misconduct

The Defendant contends that the prosecutor engaged in prosecutorial misconduct
during closing arguments. The Defendant points to six instances that he alleges are

13
misconduct. The State contends that the Defendant has waived five of the six of these
instances by failing to include them in his motion for new trial. The other comment, the State
asserts, did not amount to prosecutorial misconduct.

In his motion for new trial, the Defendant asserts that his “due process rights were
violated by improper and impermissible argument of the State that repeatedly sought to shift
the burden of proof away from the State and onto the [D]efendant.” In the memorandum
supporting the motion, the Defendant noted several, but not all, of the statements by the
prosecutor to which he now objects. As will be discussed below, the Defendant
contemporaneously objected to all but one of the arguments made by the prosecutor that he
now raises on appeal. We conclude that the Defendant sufficiently preserved for our review
the statements made by the prosecutor.

The Tennessee Supreme Court “has long recognized that closing arguments are a
valuable privilege that should not be unduly restricted.” Terry v. State, 46 S.W.3d 147, 156
(Tenn. 2001) (citing State v. Sutton, 562 S.W.2d 820, 823 (Tenn. 1978)). “Consequently,
attorneys are given greater leeway in arguing their positions before the jury, and the trial
court has significant discretion in controlling these arguments, to be reversed only upon a
showing of an abuse of that discretion.” Terry, 46 S.W.3d at 156 (citing Sutton, 562 S.W.2d
at 823); see Smith v. State, 527 S.W.2d 737, 739 (Tenn. 1975). This Court has explained that
“closing arguments must be temperate, based upon the evidence introduced at trial, relevant
to the issues being tried, and not otherwise improper under the facts or law.” See State v.
Goltz, 111 S.W.3d 1, 5 (Tenn. Crim. App. 2003) (citing Coker v. State, 911 S.W.2d 357, 368
(Tenn. Crim. App. 1995)).

In Goltz, this Court found that within the closing argument, five general areas of
prosecutorial misconduct are recognized:

1. It is unprofessional conduct for the prosecutor intentionally to misstate the
evidence or mislead the jury as to the inferences it may draw.

2. It is unprofessional conduct for the prosecutor to express his [or her]
personal belief or opinion as to the truth or falsity of any testimony or
evidence or the guilt of the defendant. See State v. Thornton, 10 S.W.3d 229,
235 (Tenn. Crim. App. 1999); Lackey v. State, 578 S.W.2d 101, 107 (Tenn.
Crim. App. 1978); T ENN. C ODE OF P ROF’L R ESPONSIBILITY DR 7-106(c)(4).

3. The prosecutor should not use arguments calculated to inflame the
passions or prejudices of the jury. See [State v.] Cauthern, 967 S.W.2d
[726,] 737 (1998); State v. Stephenson, 878 S.W.2d 530, 541 (Tenn. 1994).

14
 4. The prosecutor should refrain from argument which would divert the jury
from its duty to decide the case on the evidence, by injecting issues broader
than the guilt or innocence of the accused under the controlling law, or by
making predictions of the consequences of the jury’s verdict. See Cauthern,
967 S.W.2d at 737; State v. Keen, 926 S.W.2d 727, 736 (Tenn. 1994).

5. It is unprofessional conduct for a prosecutor to intentionally refer to or
argue facts outside the record unless the facts are matters of common public
knowledge.

Goltz, 111 S.W.3d at 6 (quoting S TANDARDS R ELATING TO THE P ROSECUTION F UNCTION AND
THE D EFENSE F UNCTION §§ 5.8-5.9 Commentary (ABA Project on Standards for Criminal
Justice, Approved Draft 1971).

A criminal conviction should not be lightly overturned solely on the basis of the
prosecutor’s closing argument. State v. Banks, 271 S.W.3d 90, 130 (Tenn. 2008) (citing
United States v. Young, 470 U.S. 1, 11-13 (1985); State v. Bane, 57 S.W.3d 411, 425 (Tenn.
2001) (holding that a prosecutor’s improper closing argument does not automatically warrant
reversal)). When an appellate court determines an argument to be improper, “the established
test for determining whether there is reversible error is whether the conduct was so improper
or the argument so inflammatory that it affected the verdict to the Appellant’s detriment.”
Goltz, 111 S.W.3d at 5 (citing Harrington v. State, 385 S.W.2d 758, 759 (Tenn. 1965)). In
measuring the prejudicial impact of an improper argument, this Court should consider the
following factors: “(1) the facts and circumstances of the case; (2) any curative measures
undertaken by the court and the prosecutor; (3) the intent of the prosecution; (4) the
cumulative effect of the improper conduct and any other errors in the record; and (5) the
relative strength or weakness of the case.” Goltz, 111 S.W.3d at 5-6 (citing Judge v. State,
539 S.W.2d 340, 344 (Tenn. Crim. App. 1976)); see State v. Buck, 670 S.W.2d 600, 609
(Tenn. 1984).

1. Comments on Lack of Defense Proof

Two of the prosecutor’s comments about which the Defendant complains reference
the Defendant’s failure to offer or contest the State’s witnesses’ testimony. In the first
statement, the State said:

Neither [B.N.] or [the victim] had the slightest thought that [the Defendant]
would violate her daughter. That she was putting her daughter in harm’s way
to take her over there that fateful Tuesday and more fateful Thursday. So the

15
 furthest thing from their mind. And we have not heard anything to controvert
that.

The defense attorney objected to this comment and moved to strike it. The prosecutor
withdrew the comment. Later, the prosecutor stated, “When you – when you don’t have a
defense you got to come up with something.” The defense attorney objected, and the
prosecutor said that this was just his opinion. He said that the defense attorney had been very
resourceful, and the defense attorney reminded the trial court that he was not on trial. The
prosecutor said, “Well, how many times did you hollar at me a few minutes ago.” The
prosecutor then said, “Excuse me, I’m sorry, I take it back.”

This Court has previously held that a prosecutor’s comments during closing argument
regarding lack of defense proof and the fact that there was no evidence to contradict the
State’s case did not violate the defendants’ right to remain silent, where there was no direct
comment about the defendants’ decision not to testify or any gross improprieties. State v.
Copeland, 983 S.W.2d 703, 707 (Tenn. Crim. App. 1998). In another case, we stated, “The
fact that the proof is uncontradicted may be commented on. . . . A more direct reference to
the defendant not testifying might result in a mistrial, but in this instance that’s not
necessary.” See, e.g., State v. Livingston, 607 S.W.2d 489, 492 (Tenn. Crim. App. 1980)
(prosecutor’s comment that no proof whatsoever was presented by the defendant was not a
comment on the defendant’s failure to testify). In Copeland, we noted, however, that

Remarks which skirt the edges of impermissible comment are neither desirable
nor worth the risk of reversal of what may well be a thoroughly deserved
conviction. Caution is desirable until the constitutional boundaries of
permissible comment on the state of the evidence when the accused does not
testify are thoroughly established. In the meantime the sensible course is to
assume that jurors can see as well as hear, and do not have to be told when
evidence is uncontradicted.

Copeland, 983 S.W.3d at 707 (citing Taylor v. State, 582 S.W.2d 98, 101 (Tenn. Crim. App.
1979) (quotations omitted)).

We conclude in this case that the prosecutor’s comments did not rise to the level of
prosecutorial misconduct. Further, after making each of these two comments, the defense
attorney objected, and the prosecutor withdrew or “took back” the comment. The trial court
gave the jury a complete and proper instruction regarding its role when considering the
arguments of counsel. The trial court instructed the jury, “The statements, arguments, and
remarks of the attorneys are intended to help you in understanding the evidence and applying
the law, but they are not evidence. If any statements were made that you believe are not

16
supported by the evidence, they should be disregarded.” Juries are presumed to follow the
trial court’s instructions. State v. Young, 196 S.W.3d 85, 111 (Tenn. 2006). Under these
circumstances, there is no basis to conclude that the prosecutor’s statements rise to the level
of reversible error.

2. Comments on Defense Attorney’s Cross-Examination

The Defendant next contends that the prosecutor’s comments about the victim being
attacked by the defense attorney during cross-examination was prosecutorial misconduct.
The prosecutor commented as follows:

[y]ou are not going to find any inconsistencies that make a difference in this
case. And this was two years ago, three years ago. And she didn’t see [her
written statement] again until, in preparation for this trial, I gave her a copy in
fairness so she could see and read again what she wrote. And to do less and
to put a 15 year old girl up here and let her be attacked by [the Defendant’s
attorney] or cross examined by [the Defendant’s attorney] I would should say
–

The defense attorney objected to the term “attacked,” and the State’s attorney apologized and
said, “I took it back.”

We conclude that the prosecutor’s correction of his use of the word “attacked,” by
immediately correcting himself and stating “cross examined” cured what error, if any,
existed. Further, we again note that the jury was instructed that the arguments of counsel are
not evidence. Juries are presumed to follow the trial court’s instructions. Young, 196 S.W.3d
at 111.

3. Comment on Lawyer’s Dreams

The next statement to which the Defendant objects was the prosecutor’s statement
about the fact that law enforcement did not conduct forensic testing in this case. The
prosecutor stated:

DNA – going to the crime lab in Nashville and having the tax payers pay for
that. What issue would DNA resolve? Been a waste of tax payers money; is
that what you want us to do? Just chase defense lawyer dreams about what
should have been done?

The defense attorney objected to “defense lawyers dreams,” and the prosecutor said, “Excuse

17
me.” The trial court sustained the objection, and asked the prosecutor to rephrase the
statement.

The comment by the prosecution appears to have been a response to the argument of
defense counsel that law enforcement did not, but should have, conducted forensic testing
in this case. This argument, while perhaps inartfully made, was not improper. Further, the
Defendant has failed to demonstrate how the comment affected the jury verdict.

4. Comments Outside Scope of Trial

The Defendant next contends that the prosecutor committed prosecutorial misconduct
when he made comments that were outside the scope of the guilt or innocence of the
Defendant. The prosecutor stated:

This is – this is probably going to sound kind of cold to some of you. And it
may be even offensive to a couple of you or more. But having been in the
trenches for a few years, quite frankly folks, I would rather try a cold blooded
murder case than – any day, than one of these. And the reason why these cases
are so hard to convict is that all of the costs are in the hand of offender, the sex
offender. And most often these are intelligent people with problems. They got
to plan where it happens –

The defense attorney objected saying, “[T]hey ain’t on trial, [the Defendant] is [on] trial.”
The prosecutor then stated:

Well, if you believe [the Defendant] was the sex offender in this case, he got
to plan where it happened, where it happened and to whom it happened. He
chose a victim that was vulnerable, he thought nobody would believe and he
did it at a time that he would not be interrupted, in a place when he would not
be interrupted. It was all very carefully executed. And just kind of blew up.

The other – the other advantage that the perpetrator has in a case like this
is that they’re faceless. There is no profile for sex offenders. That’s why I
objected - remember to what [the defense attorney] said in voir dire, he said to
you folks; . . . look like a pervert. Object. And the reason I objected is there
are no profiles for perverts. Lord have mercy folks, we all out there in the
public domain, at least reading about the public domain in different
jurisdictions and [the] kind of people that commit these crimes. Some of them
wear the collars of the priesthood, church robes, business suits, drive expensive
cars, could be the guy next door. Our office just got a case –

18
The defense attorney objected saying that this was getting “away from [the Defendant’s] case”
and was not relevant. The trial court sustained the objection.

The comments to which the Defendant objects were objected to during the closing
arguments. The trial court sustained the Defendant’s objection, and the jury never heard
further about the case the prosecutor’s office had just received. We conclude that no improper
argument was presented to the jury.

5. Comment on Victim’s Statement

The final statement objected to by the Defendant was:

[i]nstead of talking about the proof, instead of talking about the evidence, you
know, example: well this thing, this 10 page statement is just riddled with
inconsistency. He didn’t point any of them out to you. Try it yourself, read it
again, I challenge you, read it, it speaks for itself much better than I can, much
better than he can. It will be there for you if you want to. I’m not going to
waste any more time on it.

I’m sick to death [of]. . . hearing about these inconsistencies that don’t
exist. This girl’s rock solid in terms of her memory of what happened to her.
She was victimized. She continued, and her mother as well, to be victimized
on the stand yesterday. What do you think these people get out of this. This
happened three years ago. They’ve been living with this prospect of coming to
trial for that period of time and I have to apologize for that. Unfortunately
that’s the system that we have to work with.

Oh yes, [defense attorney], I wish we had a perfect world here in Roane
County, Tennessee, where the government just threw all kinds of money at the
Roane County Sheriff’s Department. And we could just take every dream you
had about law enforcement and follow it up.

So when you don’t want to talk about the proof, you don’t want to talk
about what’s really in there, you don’t want to talk about – come on folks, these
things don’t lie. They do not lie.

The Defendant did not object to this statement. By failing to object to this statement at trial,
the Defendant has risked waiving the issue on appeal. Banks, 271 S.W.3d at 132.

Further, if not waived, we conclude that the Defendant is not entitled to any relief

19
based upon these comments by the prosecutor. The prosecutor was responding directly to the
defense attorney’s statement in closing argument that the victim’s statement was inconsistent.
We conclude that the prosecutor’s statements fall within the realm of permissible argument.

B. Victim’s Written Statement

The Defendant next contends that the trial court erred when it admitted into evidence
the victim’s written statement. The Defendant contends that the statement, which is ten pages
long and signed by the victim’s father, was not used to impeach her to a great extent. The
State counters that the Defendant waived this issue by failing to object at trial to the admission
of the statement as a prior consistent statement. Further, the State asserts that any error is
harmless.

The State is correct that this Court has stated that a trial court “cannot be put in error
on grounds raised for the first time on appeal when the objection at trial was based on another
ground which was declared insufficient.” State v. Brock, 678 S.W.2d 486, 490 (Tenn. Crim.
App. 1984); see also Tenn. R. App. P. 36(a) (“Nothing in this rule shall be construed as
requiring relief be granted to a party responsible for an error or who failed to take whatever
action was reasonably available to prevent or nullify the harmful effect of an error.”).
Because, however, the Defendant argued in his motion for new trial that the trial court erred
in allowing the victim’s prior consistent statement, and failing to offer a limiting instruction,
we will address this issue on its merits.

At trial, the Defendant’s attorney impeached the victim using her statement and another
statement she gave to DCS, playing portions of the videotaped interview for the jury. The
Defendant’s attorney implied that the victim had made up this story because she was mad at
her parents for not allowing her to go to Dollywood. Further, the Defendant’s attorney said
that she knew people would not believe her because she had lied in the past. The State then
sought to introduce the victim’s written statement and the entire DCS interview to rehabilitate
her. The Defendant’s attorney objected, saying that he had not “open[ed] the door” to the
admission of the victim’s written statement and the entire videotaped interview. The trial
court ruled that the videotaped interview was not admissible but that the State could introduce
the written statement.

Generally, prior consistent statements are not admissible to bolster a witness’s
credibility. State v. Hodge, 989 S.W.2d 717, 725 (Tenn. Crim. App. 1998) (citing State v.
Braggs, 604 S.W.2d 883, 885 (Tenn. Crim. App. 1980)). However, three exceptions to this
general rule exist. First, a “prior consistent statement may be admissible . . . to rehabilitate
a witness when insinuations of recent fabrication have been made or when deliberate
falsehood has been implied.” State v. Benton, 759 S.W.2d 427, 433 (Tenn. Crim. App. 1988).

20
In such a situation, a prior consistent statement is allowed to show that the trial testimony is
consistent with what the witness said when no influence or motive to lie existed. State v.
Sutton, 155 Tenn. 200, 204, 291 S.W. 1069, 1070 (1927). Second, a prior consistent
statement may be admissible when a witness is impeached through the introduction of a prior
inconsistent statement that suggests that the witness’s testimony was either fabricated or based
upon faulty recollection. State v. Meeks, 867 S.W.2d 361, 374 (Tenn. Crim. App. 1993).
Moreover, “the impeaching attack which allows for corroboration may occur during
cross-examination of the witness . . . . Under such circumstances, the [witness’s] statement
made before the inconsistent statement but which was consistent with his trial testimony” is
admissible to rehabilitate the witness. Id. (citations omitted). Third, a prior consistent
statement may be admissible when a witness’s prior statement is used out of context to
cross-examine the witness. State v. Boyd, 797 S.W.2d 589, 593-94 (Tenn. 1990).

We conclude that the victim’s statement is admissible under either of the first two
exceptions. First, the Defendant’s attorney clearly implied that the victim had deliberately lied
about the Defendant’s interaction with her. Second, he argued that her recollection was
faulty, noting that her statement differed from her trial testimony about whether the Defendant
drove her home or her mother picked her up after the first time she was at the Defendant’s
house to work. Under these exceptions, the victim’s statement was properly admissible to
rehabilitate her.

To the extent that the Defendant argues that the trial court erred by failing to issue a
limiting instruction on a prior consistent statement, he has waived that issue by not requesting
the instruction at trial. See State v. Joseph Shaw, Jr., No. W2009-02326-CCA-R3-CD, 2010
WL 3384988, at *7 (Tenn. Crim. App., at Jackson, Aug. 27, 2010), perm. app. denied (Tenn.
Jan. 13, 2011). The Defendant is not entitled to relief on this issue.

C. Sufficiency of the Evidence

The Defendant challenges the sufficiency of the evidence to sustain his conviction.
Specifically, the Defendant asserts that sexual impropriety crimes in Tennessee should require
physical corroboration. The Defendant acknowledges that Tennessee has no such
requirement, but he states his desire that we change the current state of the law. The State
counters, first, that no physical corroboration is required by law. Further, it contends that it
proved beyond a reasonable doubt that the Defendant committed sexual battery by an
authority figure by drawing on the victim’s body on or near her vagina and on her buttocks.

When an accused challenges the sufficiency of the evidence, this Court’s standard of
review is whether, after considering the evidence in the light most favorable to the State, “any
rational trier of fact could have found the essential elements of the crime beyond a reasonable

21
doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see Tenn. R. App. P. 13(e), State v.
Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid, 91 S.W.3d 247, 276 (Tenn.
2002)). This rule applies to findings of guilt based upon direct evidence, circumstantial
evidence, or a combination of both direct and circumstantial evidence. State v. Pendergrass,
13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999). In the absence of direct evidence, a
criminal offense may be established exclusively by circumstantial evidence. Duchac v. State,
505 S.W.2d 237, 241 (Tenn. 1973). The jury decides the weight to be given to circumstantial
evidence, and “[t]he inferences to be drawn from such evidence, and the extent to which the
circumstances are consistent with guilt and inconsistent with innocence, are questions
primarily for the jury.” State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (citations omitted).
“The standard of review [for sufficiency of the evidence] is the same whether the conviction
is based upon direct or circumstantial evidence.” State v. Dorantes, 331 S.W.3d 370, 379
(Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).

In determining the sufficiency of the evidence, this Court should not re-weigh or
reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).
Nor may this Court substitute its inferences for those drawn by the trier of fact from the
evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999); Liakas v. State, 286 S.W.2d
856, 859 (Tenn. 1956). “Questions concerning the credibility of the witnesses, the weight and
value of the evidence, as well as all factual issues raised by the evidence are resolved by the
trier of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); Liakas, 286 S.W.2d at 859.
“A guilty verdict by the jury, approved by the trial judge, accredits the testimony of the
witnesses for the State and resolves all conflicts in favor of the theory of the State.” State v.
Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978); State v. Grace, 493 S.W.2d 474, 479 (Tenn.
1973). The Tennessee Supreme Court stated the rationale for this rule:

This well-settled rule rests on a sound foundation. The trial judge and
the jury see the witnesses face to face, hear their testimony and observe their
demeanor on the stand. Thus the trial judge and jury are the primary
instrumentality of justice to determine the weight and credibility to be given to
the testimony of witnesses. In the trial forum alone is there human atmosphere
and the totality of the evidence cannot be reproduced with a written record in
this Court.

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1996) (citing Carroll v. State, 370 S.W.2d 523
(Tenn. 1963)). This Court must afford the State of Tennessee the strongest legitimate view
of the evidence contained in the record, as well as all reasonable inferences which may be
drawn from the evidence. Goodwin, 143 S .W.3d at 775 (citing State v. Smith, 24 S.W.3d
274, 279 (Tenn. 2000)). Because a verdict of guilt against a defendant removes the
presumption of innocence and raises a presumption of guilt, the convicted criminal defendant

22
bears the burden of showing that the evidence was legally insufficient to sustain a guilty
verdict. State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000).

Tennessee Code Annotated section 39-13-527 provides:

Sexual battery by an authority figure is unlawful sexual contact with a victim
by the defendant or the defendant by a victim accompanied by the following
circumstances:

(1) The victim was, at the time of the alleged offense, thirteen (13) years of age
or older but less than eighteen (18) years of age; [and] . . .

(3)(A) The defendant was at the time of the offense in a position of trust, or had
supervisory or disciplinary power over the victim by virtue of the defendant’s
legal, professional or occupational status and used the position of trust or power
to accomplish the sexual contact; . . . .

T.C.A. § 39-13-527 (2010). “Sexual contact” includes the intentional touching of the victim’s
intimate parts, if that intentional touching can be reasonably construed as being for the
purpose of sexual arousal or gratification. T.C.A. § 39-13-501(6) (2010). “Intimate parts”
includes the primary genital area, groin, inner thigh, buttock or breast of a human being.
T.C.A. § 39-13-501(2) (2010).

Based on the victim’s testimony, together with all of the evidence presented at trial,
we conclude that the Defendant’s conduct meets the elements of the crime for which he was
convicted. This Court has found that “the law does not require that the State corroborate the
victim’s testimony with medical proof that the offense was committed. . . . Moreover because
the definition of sexual battery embodies ‘touching,’ physical evidence of contact is not a
practical requirement.” State v. James Cleveland Breer, No. W2001-00390-CCA-R3-CD,
2002 WL 1482796, at *6 (Tenn. Crim. App., at Jackson, Feb. 7, 2002), perm. app. denied
(Tenn. July 8, 2002). Further, while physical corroboration is not a necessary element to this
offense, we note that there was physical corroboration of the victim’s testimony. The State
offered photographs of the drawings that the victim said the Defendant made on her buttocks
and the area near her vagina. These photographs confirm that there were, in fact, drawings
in the areas testified to by the victim. The Defendant is not entitled to relief on this issue.

III. Conclusion

In accordance with the aforementioned reasoning and authorities, we affirm the
judgment of the trial court.

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 ________________________________
ROBERT W. WEDEMEYER, JUDGE

24