Assigned on Briefs May 17, 2017
from the Criminal Court for Shelby County No. 16-00491 John
Wheeler Campbell, Judge
Timothy Ware, was indicted by the Shelby County Grand Jury
for one count of aggravated sexual battery. Following a jury
trial, Defendant was convicted as charged and sentenced to 16
years' confinement. On appeal, Defendant contends that
the evidence was not sufficient to sustain his conviction.
Having reviewed the record and the briefs of the parties, we
affirm the judgment of the trial court.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Stephen C. Bush, District Public Defender; and Tony N.
Brayton, Assistant Public Defender, Memphis, Tennessee, for
the appellant, Timothy Ware.
Herbert H. Slatery III, Attorney General and Reporter;
Breanne N. Hataway, Assistant Attorney General; Amy P.
Weirich, District Attorney General; and Leslie Rainey,
Assistant District Attorney General, for the appellee, State
T. Woodall, P.J., delivered the opinion of the court, in
which John Everett Williams and Robert W. Wedemeyer, JJ.,
T. WOODALL, PRESIDING JUDGE
identify the minor victim in this case by her initials, A.A.
In January 2015, A.A. lived with her mother Yalonda Durrett
and her grandmother in a house in Memphis. They shared the
house with their roommates, Defendant and his girlfriend,
Vicky. Ms. Durrett had known Defendant for 11 or 12 years,
and Defendant had lived with Ms. Durrett and her family for
January, 2015, A.A. was ten years old. She testified about an
occasion when she fell asleep on a couch in the living room
while watching a movie. Defendant was the only other person
in the room with her. A.A. testified that she woke up and
felt Defendant touching her under her dress. She testified
that Defendant was rubbing her "wrong spot" with
his fingers, on top of her underwear. A.A. identified the
genital area, on a female diagram, as the place Defendant
touched her. When A.A. woke up, Defendant "started
playing with his phone like he didn't do anything."
A.A. went to her mother's room and asked to sleep with
her. She told her mother two days later what Defendant had
mother, Ms. Durrett, testified that her daughter told her
about the incident on January 22, 2015. She testified that
A.A. was crying and she appeared "[v]ery scared, very
nervous, worried." Ms. Durrett testified that A.A. typed
a message on her phone because she did not want to say it
aloud. Ms. Durrett "told [A.A.] to put on her shoes[, ]
and [they] left the house immediately." They went to her
friend's house and called the police. The police spoke to
Ms. Durrett and A.A. at Ms. Durrett's friend's house.
Ms. Durrett testified that A.A. did not have a medical exam
following the incident. On cross-examination, Ms. Durrett
testified Defendant had been a friend of the family and that
she had never had problems with him before the incident.
Hughes, a detective in the Sex Crimes Unit of the Memphis
Police Department, testified that a medical examination was
not performed on A.A. because two days had elapsed between
the incident and when it was reported. She explained that the
victim had "changed clothes and had a bath, [and] there
would be no DNA to be recovered."
Onry, of the Memphis Child Advocacy Center, conducted a
forensic interview of the victim on February 2, 2015. A video
recording of the interview was admitted as an exhibit at
trial and played for the jury. In the interview, A.A. stated
that she fell asleep on the couch, and she felt Defendant
"touch her wrong spot" with his finger. Defendant
reached over from the other couch where he was sitting to
touch her. She stated that when she woke up, Defendant
"acted like he wasn't doing anything, just playing
on his phone." A.A. went to her mother's bedroom and
asked to sleep with her, and her mother told her to sleep in
her own ...