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XyXXXXXy   Ad FILEDXyX   August25,1998  CecilCrowson,Jr.XXyAppellateCourtClerk HU: ,cAZ"Arial Regular_ AQ 8 !#%C<< C Level 1Level 2Level 3Level 4Level 5R 0D O(3$ !  + B  dR 0D ($$   1  = D/ ''' dxd+ B #P PdA D3 @""""'dxd  HH  2$HH  Geneva  <Px443!#4$*$$*$ KK  Geneva  Geneva .,6 Geneva   inion Geneva  inion Geneva 4R3.5.2'3.5.2, 1996 Corel Corporation Limited,R3.5.2Created with WordPerfect 3.5.2.K[0Corel WordPerfectxHH(FG(HH(d'hSW\EPSetBPJobNStylZwp60versWDatSTR PtPtWWu (u ~V  J`$ e~+ 2  +W W W W )WǼ {W WǸ W( ZWǤ WP W WǨ VWX W` Wp 1Wt Wx! lWLj" Wnj# Wǐ% GWǔ' WǠ( Wl W Wɸ5W̼ gWt}{WP}10{WP}12{WP}11WP 6.0 caption{WP}22{WP}16{WP}01"Hl' '" t`{WP}10 <<KK ..,,..,, t`Times t`ͪHHlHЫ t` Helvetica(d( t`    t`l Helvetica(d( t`      "IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE0' '0$' '$ t`ͪҫ   t`    t`NN t`{ t`l Hh%d%'$' t`{WP}10 <<KK  t`Times t``{WP}22 t` Helvetica $Y@Y@Y@FILED$ 0$' '0F$$2' '$August 25, 199802@22' '0F@N Cecil Crowson, Jr.$N\'  '$  Appellate Court Clerk{    AT JACKSON0*' '0*8JULY 1998 SESSION8FFTTb$bp' '$STATE OF TENNESSEE,8)"NO. 02C019708CC003340  p~pp' '0)$  ~' '$$Appellee,~)"BENTON COUNTY0  ' '0)$  ' '$ t` t` t` t`VS.)"HON. JULIAN P. GUINN,0  ' '0)"JUDGE0' '0REGINALD L. EDMONDS,3)0' '0)"(Rape of a Child, AggravatedSexual t` t` t` t`$Appellant.{)"Battery, Especially Aggravated )"Sexual Exploitation) &&454B6y' '5ܪ6y  ЫFOR THE APPELLANT:0BPBB' '0$P^' '$GUY T. WILKINSON0^l^^' '0District Public Defenderlz$z' '$VICKI S. SNYDER0' '0Assistant Public Defender0' '0117 N. Forrest AvenueP.O. Box 663 Camden, TN 38320R ! !! ' 'RFOR THE APPELLEE:0!!BPBB' '0$"!P^' '$JOHN KNOX WALKUP0#!^l^^' '0Attorney General and Reporter$!lz$%!z' '$PETER M. COUGHLAN0&!' '0Assistant Attorney General'!Cordell Hull Building, 2nd Floor(!425 Fifth Avenue North)!Nashville, TN 372430493*!$+!' '$G. ROBERT RADFORD0,!' '0District Attorney General-!$.!' '$VICTORIA' 'DIBONAVENTURA$/!"' '$STEVEN L. GARRETT00!"0""' '0Asst. District Attorneys General1!0>111 Church Street2!>LP.O. Box 6863!LZHuntingdon, TN 383440686 ZZ,!Z GBB!,xxG 6y6yJ4"Z xx"" HJܿ#ܿ#$%$&' '$ t` t` t` t`OPINION FILED:  0'8' '0()*AFFIRMED + ," -"0 .0>JOE G. RILEY, />LJUDGEV0LZ L0Z H' 'V t`ͪ  Ы t` t`   t`ͬA 7XXdXXd7A  t`  Times ЭOPINION01jj' '02$The defendant, Reginald L. Edmonds, was convicted by a Benton County""jury of two (2) counts of rape of a child, one (1) count of aggravated sexualbattery and one (1) count of especially aggravated sexual exploitation of aminor. He was sentenced as a Range I offender to concurrent terms of twenty(20) years for each rape count, twelve (12) years for aggravated sexual batteryFand twelve (12) years for especially aggravated sexual exploitation. On appeal,he presents the following issues for our review:$9]' '$ t`ͪ  Ы t` t`   t`$(1) whether the evidence was sufficient to sustain the verdicts of]' 'guilt;#;]y#<y$/(2) whether the trial court erred in denying his motion to suppresshis statement given to law enforcement authorities; and#>#?$j(3) whether the trial court erred in allowing the state to introduce astatement by the victim as an excited utterance.#A#$ B' '$ t`ͪ  Ы t` t`   t`After a thorough review of the record before this Court, we find no reversibleq' 'error. Accordingly, the judgment of the trial court is affirmed. D$ E,' '$FACTS0 F,G,' '0$ GGb' '$$bvThe defendant was the father of the ten (10) year old victim, C.E. t`V{WP}11  1    t`  "Hl'  '"-- t`{WP}10  <<KK  t`Times t`u{WP}12HHlH$  1   It is the policy of this Court not to reveal the names of minor victims of sexual'  'abuse.֭, andb' '[nher thirteen (13) year old brother, T.E. Both children had been living with the6 I+ H6defendant since he separated from their mother in 1989.Jb$NAt trial, the victim testified as to four incidents of sexual abuse by the[ndefendant. As to Count One which charged rape of a child, C.E. testified thatseveral days before Christmas 1996, she was trying on some clothes. Whileshe was changing, she noticed her father watching her through a hole in theOwall. Defendant then opened the door, watched her for a few moments andthen led her into another room. The victim was wearing only her underwear. 6Defendant then laid down on the bed, put his penis into her mouth and madeher  rub it up and down until he ejaculated.R$As to Count Two which charged especially aggravated sexualv'exploitation of a minor, the victim testified that the defendant made a video ofher while she was living with him. The videotape was introduced at trial anddepicts the nude victim simulating masturbation.V $As to Count Three charging rape of a child, C.E. testified that beforeChristmas 1996, defendant made her and her brother take their clothes off and0get into bed with him. She referred to this as the  pajama party. She further$testified that once she was in bed with him, her father  pulled [her] panties downand he put his dick in [her] butt.[ $;As to Count Four charging rape of a child, the victim testified that whenshe was eight (8) years old, defendant put his  finger up in [her] butt. When sheUasked the defendant to leave her alone, defendant took her into another roomand told her to  kiss his penis. When she refused, defendant struck her. Themdefendant kept the victim at home for the next two days because of the bruising6 R`4 H6on the side of the victims face.aD$Peggy Jamison, the victims mother, testified at trial that on Saturday,ODecember 21, 1996, she spoke with her daughter on the telephone. C.E. wasncrying and would not tell her mother what was bothering her. The next day,@Jamison picked her children up from their fathers home. C.E. was withdrawnand crying, then suddenly asked her mother what a  blow job was. Uponfurther inquiry by her mother, the victim stated her father had molested her.gD$3T.E., the victims brother, testified at trial concerning the  pajama partythat occurred in the fall of 1996. He stated that his father asked him and hisiisister to take most of their clothes off and get into bed with him. He could recallthat at one point his sister told his father to  stop. He also testified that in thespring of 1994, his father hit his sister, causing a bruise on her face.l m$Benton County Sheriff Bobby Shannon also testified at trial. Uponarresting defendant in December 1996, he confiscated the videotape whichFsubsequently became the basis of the sexual exploitation charge. When heUconfronted the defendant with the tape and pointed out that the victim was%visibly distraught, the defendant responded,  if Id . . . screwed her shed had a/smile on her face. Defendant denied having sexual intercourse with hisUdaughter and told Sheriff Shannon that he was merely examining the victim forF parasites. At one point during their conversation, defendant told Shannon thathe made the tape  [t]o have a little fun. u m `$FDefendant testified on his own behalf at trial. He denied sexuallyfabusing his daughter and initially denied making the videotape, but eventually6 {Rw ` H6admitted making the tape to  examine [the victim] for like parasites. Defendantalso denied that he asked his children to take off their clothes and get into bedwith him. However, the following exchange occurred on crossexamination:$z ` ' '$ t`ͪ  Ы t` t`   t`$Q.H$nMr. Edmonds, your thirteen year old son [T.E.] Q' 'has come in here under oath and has testified that.you had him take off his clothes and get in bed andyou got in bed with your underwear #~ /# / =$A.H$Well, he had his underwear on too. I mean ifhe did if we did it, okay.# = Y# Y g$Q.H$He had his underwear on too?# g u# u $A.H$Yeah. I didnt tell him to take his clothes off3completely, if I if we ever did anything like that. Thats just not me. I dont do that kind of thing. . . # #$  ' '$ t`ͪ  Ы t` t`   t`$NThe jury found defendant guilty of rape of a child in Counts One and ' 'Four, especially aggravated sexual exploitation in Count Two and the lesseroffense of aggravated sexual battery in Count Three. Defendant now brings thisappeal as of right.  '$  ' B' '$jSUFFICIENCY OF THE EVIDENCE0  B ] B' '0  ] x$Defendant challenges the sufficiency of the convicting evidence. Specifically, he claims that the victim  could not state with any certaintynregarding dates of any of the alleged events. He also argues that the statefailed to present any medical proof which would corroborate the victimsallegations. Therefore, he asserts that the evidence was insufficient for a' 'rational trier of fact to find him guilty beyond a reasonable doubt.b x  Y Y  H' 'bрA.ÿ0 * E *' '0 t` t` t` Helvetica t` t` t` Helvetica t`$Where sufficiency of the evidence is challenged, the relevant question for@an appellate court is whether, after viewing the evidence in the light mostfavorable to the prosecution, any rational trier of fact could have found theNessential elements of the crime or crimes beyond a reasonable doubt. Tenn. R.App. P. 13(e); t` t` Helvetica t` t` t` Helvetica t` Jackson v. Virginia, 443 U.S. 307, 319,  t` t` Helvetica t` t` t` Helvetica t`99 S.Ct. 2781, 2789, 61L.Ed.2d 560 t` t` Helvetica t` t` t` Helvetica t` (1979); State v. Abrams, 935 S.W.2d 399, 401 (Tenn. 1996). t` t` Helvetica t` E $ t` t` Helvetica t`Great weight is given to the result reached by the jury in a criminal trial. A*jury verdict accredits the state's witnesses and resolves all conflicts in favor ofthe state.  t` t` Helvetica t` t` t` Helvetica t`State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994); State v. Harris,839 S.W.2d 54, 75 (Tenn. 1992).  t` t` Helvetica t` t` t` Helvetica t` On appeal, the state is entitled to the33strongest legitimate view of the evidence and all reasonable inferences whichv'may be drawn therefrom. Bigbee, 885 S.W.2d at 803; Harris, 839 S.W.2d at 75;UState v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Moreover, a guiltyLverdict removes the presumption of innocence which the appellant enjoyed atI%trial and raises a presumption of guilt on appeal. State v. Grace, 493 S.W.2dUU474, 476 (Tenn. 1973). The appellant has the burden of overcoming thispresumption of guilt. Id.$ ' '$рB.0+' '0$Defendant was convicted of rape of a child in Counts One and Four. %Rape of a child is  the unlawful sexual penetration of a victim by the defendantor the defendant by a victim, if such victim is less than thirteen (13) years ofage. Tenn. Code Ann.  3913522(a). Sexual penetration is defined as6 |R+ H6 sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other0intrusion, however slight, of any part of a person's body . . . into the genital oranal openings of the victim's . . . body. t` t` Helvetica t` t` t` Helvetica t` Tenn. Code Ann.  3913501(7).+$bvAs to Count One, the ten (10) year old victim testified that several dayswwprior to Christmas 1996, her father  t` t` Helvetica t`put his penis into her mouth. t` t` Helvetica t` As to CountFour,  t` t` Helvetica t`the victim testified that when she was eight (8) years old, defendant put his finger up in [her] butt. The evidence was sufficient to support defendantsconvictions for rape of a child in Counts One and Four. t` t` Helvetica t`$' '$ t` t` t` Helvetica t` t` t` Helvetica t` t` t` Helvetica Helvetica t`C.0' '0$In Count Two, defendant was convicted of especially aggravated sexualFexploitation of a minor. That offense is defined as knowingly promoting,femploying, using, assisting, transporting or permitting  a minor to participate in]the performance or in the production of material which includes the minorUUengaging in: (1) [s]exual activity; or (2) [s]imulated sexual activity that is patentlytoffensive.  t` t` Helvetica t` t` t` Helvetica t`Tenn. Code Ann.  39-17-1005(a). t` t` Helvetica t` t` t` Helvetica t`  Material means  [a]ny picture,drawing, photograph, motion picture film, videocassette tape or other pictorialrepresentation. Tenn. Code Ann.  39171002(2)(A).  Sexual activityincludes the act of masturbation. Tenn. Code Ann.  39171002(7)(B). t` t` Helvetica t` t` t` Helvetica t` $@The victim testified that the defendant made a videotape of her in theOspring of 1996.  t` t` Helvetica t`The videotape was introduced at trial and depicts the victimfondling herself in various positions and masturbating. Although defendantjtestified that he was merely examining his daughter for  parasites, a viewing ofthis graphic and lewd videotape clearly reveals the preposterous nature of6 R H6.defendants claim. This sickening evidence is sufficient to support the jurysfinding of guilt of especially aggravated sexual exploitation of a minor.$Z' '$ t` t` t` Helvetica t` t` t` Helvetica t`D.0ZuZ6' '0$FAlthough defendant was indicted for rape of a child in Count Three,defendant was convicted of the lesser offense of aggravated sexual battery.]Aggravated sexual battery is defined as  unlawful sexual contact with a victimmby the defendant or the defendant by a victim where  [t]he victim is less thanthirteen (13) years of age. Tenn. Code Ann.  3913504(a)(4).  SexualI%contact  t` t` Helvetica t` t` t` Helvetica t`includes the intentional touching of the victim's . . . intimate parts, or theintentional touching of the clothing covering the immediate area of the victim's . .t. intimate parts, if that intentional touching can be reasonably construed asI%being for the purpose of sexual arousal or gratification. Tenn. Code Ann.  39  13501(6). t` t` Helvetica t` t` t` Helvetica t`  Intimate parts is defined as  the primary genital area, groin, innerthigh, buttock or breast of a human being. Tenn. Code Ann.  3913501(2).  u t` t` t` Helvetica t` t` t` Helvetica t` t` t` Helvetica Helvetica t`$] t` t` Helvetica t`Both C.E. and T.E. testified that prior to Christmas 1996, defendant made them take their clothes off and get into bed with him. The victim testified that herfather then  pulled [her] panties down and he put his dick in [her] butt. T.E.could recall that while they were in bed with their father, C.E. told him to  stop. Furthermore, defendant essentially admitted the occurrence of the  pajamaparty in his own testimony. The evidence is sufficient to support defendantsconviction for aggravated sexual battery.  t` t` Helvetica t`$[' '$ t` t` t` Helvetica t` t` t` Helvetica t` t` t` Helvetica Helvetica t`рE.0[v[7' '0$9Defendant contends that the evidence is insufficient to support his6 vR v H6convictions because the victim did not testify as to the specific dates of thebvoffenses. However, the state has no burden to prove that an offense happenedon the exact date alleged in the indictment.  The rule is that the offense must beproved to have been committed prior to the finding of the indictment . . . and,33except where a special date is essential or time is of the essence of the offense,Nthe time of the commission of the offense averred in the indictment is not[nmaterial and proof is not confined to the time charged. State v. West, 737S.W.2d 790, 792 (Tenn. Crim. App. 1987). Indeed, t` t` Helvetica t` t` t` Helvetica t`$ vy' '$ t`ͪ  Ы t` t`   t`$F[t]he time at which the offense was committed need not be statedy' '.in the indictment, but the offense may be alleged to have beenqcommitted on any day before the finding thereof, or generallyt]before the finding of the indictment, unless the time is a materialingredient in the offense.#y# t` t` t` Helvetica t` t` t` Helvetica t` t` t` Helvetica Helvetica t`$' '$O t`ͪ  Ы t` t`   t`Tenn. Code Ann.  4013207; see also State v. Byrd, 820 S.W.2d 739, 740,' 'v'(Tenn. 1991). A review of the entire record indicates that the state presentedsufficient proof that the offenses occurred  on or about the dates alleged in theindictment.9$] t` t` Helvetica t`Additionally, there does not appear to be a jury unanimity problem underIState v. Shelton, 851 S.W.2d 134 (Tenn. 1993). An election of offenses was notrequired since there was testimony about only four (4) sexual offenses and' 'each was alleged in a separate count of the indictment. See generally State v.' 'Walton, 958 S.W.2d 724, 727 (Tenn. 1997). t` t` Helvetica t`$9' '$F.0' '0$8Defendant further asserts that the evidence is insufficient because theFstate did not present any medical proof that would corroborate the victims6 U  H6Ftestimony. A nurse practitioner who examined the victim on December 23testified that her examination neither confirmed nor ruled out the allegations ofUsexual abuse. Although the medical proof was inconclusive, the jury was ableto weigh and assess the testimony of the nurse practitioner along with that of the/other witnesses.  t` t` Helvetica t` t` t` Helvetica t`The weight and credibility of the witnesses' testimony arematters entrusted exclusively to the jury as the triers of fact. State v. Brewer,$932 S.W.2d 1, 19 (Tenn. Crim. App. 1996). Further, there is no requirement that.the victims testimony be corroborated by medical testimony. The fact thatOmedical testimony could not confirm nor rule out sexual abuse is a matter ofweight for the jury. State v. Howard, 617 S.W.2d 656, 658 (Tenn Crim. App.1981).$ J' '$G.0JeJ)' '0$The evidence is sufficient to support each of the defendants convictions. This issue is without merit.e$' '$MOTION TO SUPPRESS0' '0$Defendant further alleges that the trial court erred in denying his motionEto suppress his statements to law enforcement authorities.  t` t` Helvetica t`He claims thatLSheriff Shannon questioned him in violation of his constitutional rights becauseUShannon did not obtain a signed waiver of defendants Miranda rights prior to]questioning him. He further complains that Shannon did not record thedefendants statement, nor did he inquire whether defendant was intoxicated6 sR  H6*during the interview. He, therefore, asserts that he did not knowingly and*voluntarily waive his rights prior to giving a statement to authorities, and thestatement should have been suppressed at trial.$ ' '$рA.0 Q' '0$.Sheriff Shannon testified at the motion to suppress that on December 24,1996, he, along with other law enforcement officers, went to defendants home*to serve an arrest warrant on defendant in connection with the present offenses. FDefendant invited them inside, and Sheriff Shannon advised him of his MirandaFrights. Shannon told defendant that they were looking for some videotapes,and defendant told him to  get a warrant. $UUShannon arrested defendant and took him to the Benton County Jail. As]Shannon was attempting to procure a search warrant, he and defendant begandiscussing the present charges. Shannon testified that although defendant;never formally waived his right to an attorney, he never asked for an attorney. NHe stated that he read the defendant his Miranda rights twice prior to defendantv'giving a statement. He further testified that defendant did not appear to beunder the influence of any intoxicant.i$@The state also introduced defendants testimony from the preliminaryhearing where he acknowledged that he was informed of his right to an attorneyand his right to remain silent.i$.The trial court overruled the motion to suppress, finding that  the record[was] abundantly clear that defendant waived his constitutional rights prior to' 'speaking with Sheriff Shannon.b" R R"  H' 'bрB.ÿ0#6' '0 t` t` t` Helvetica t` t` t` Helvetica t`$When an accused moves to suppress his statement given to a lawmenforcement officer, the findings of fact made by the trial court at the hearing onUthe motion are binding upon this Court unless the evidence contained in therecord preponderates against these findings.  t` t` Helvetica t`State v. Smith, 933 S.W.2d 450,'b455 (Tenn. 1996) t` t` Helvetica t`; State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996); State v.nStephenson, 878 S.W.2d 530, 544 (Tenn. 1994). The trial court, as the trier offact, is able to assess the credibility of the witnesses, determine the weight and' 'Uvalue to be afforded the evidence and resolve any conflicts in the evidence. ' 'pSee State v. Odom, 928 S.W.2d at 23. However, this Court is not bound by the' '@trial courts conclusions of law. The defendant has the burden of establishingthat the evidence contained in the record preponderates against the findings offact made by the trial court. Braziel v. State, 529 S.W.2d 501, 506 (Tenn. Crim.App. 1975).$ 06' '$C.01z' '0$. t` t` Helvetica t`In Miranda v. Arizona, the United States Supreme Court held that theprosecution cannot admit a statement by the defendant stemming from custodial interrogation unless it demonstrates the use of proceduralffsafeguards effective to secure the privilege against selfincrimination. 384 U.S.436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966).67$/A valid waiver of an accuseds Miranda rights is not presumed  simplyfrom the silence of the accused after warnings are given or simply from the factthat a confession was in fact eventually obtained. 384 U.S. at 475, 86 S.Ct. at6 mR9 7 H6*1628. However, an express written or oral waiver of a defendants Mirandaÿ[nrights is not necessary to establish a valid waiver. North Carolina v. Butler, 441IU.S. 369, 373, 99 S.Ct. 1755, 1757, 60 L.Ed.2d 286 (1979); State v. Elrod, 721S.W.2d 820, 823 (Tenn. Crim. App. 1986). Although mere silence is not enoughLto establish waiver, silence  coupled with a[ defendants] understanding of hisjrights and a course of conduct indicating waiver may support a conclusion that' 'a defendant waived his rights. Butler, 441 U.S. at 373, 99 S.Ct. 1757; see also:' '*State v. Elrod, 721 S.W.2d at 823. Determination of whether a defendantLeffectively waived his Miranda rights depends upon the totality of the circumstances, including  the background, experience, and conduct of the'baccused. Butler, 441 U.S. at 37475, 99 S.Ct. at 1758 (quoting Johnson v.*Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938)). Considering the totality of the circumstances, there must be an indication thatUU(1) defendants choice to waive his rights was not coerced, and (2) defendant؞was able to comprehend the rights he was waiving. State v. Stephenson, 878S.W.2d at 545.$I7 H' '$D.0J H c H' '0$'bAt the time of his arrest, defendant was thirtyseven (37) years of age andhad no prior criminal record. Sheriff Shannon testified that he read defendantFhis Miranda rights twice prior to defendant giving a statement. AlthoughUUdefendant never formally waived his right to remain silent and his right tocounsel in writing, defendant never requested an attorney.O c $3The trial court found that the record was  abundantly clear that6 RP H66defendant voluntarily waived his right to counsel and to remain silent. In light ofthe totality of the circumstances, we see no reason to disturb this ruling.R !K$This issue is without merit.S!K!f$T!f!' '$EXCITED UTTERANCE0U!!!l' '0V!!$Defendant further argues that the trial court erred in allowing Jamison,I%the victims mother, to testify as to statements made by the victim. He allegesLthat the statements were inadmissible under the fresh complaint doctrine for'bchild victims pursuant to State v. Livingston, 907 S.W.2d 392 (Tenn. 1995). Thet]state counters with the argument that the statements were not admitted under/the fresh complaint doctrine, but under the excited utterance exception to the' 'hearsay rule. See Tenn. R. Evid. 803(2). Although victims statements are no"YD' 'Llonger admissible under the fresh complaint doctrine, they may be admissible'bas an excited utterance. State v. Gordon, 952 S.W.2d 817, 819 (Tenn. 1997);State v. Livingston, 907 S.W.2d at 395.$ `!"' '$рA.0a"""' '0$jJamison testified that on the night of December 21, she spoke with her[ndaughter on the telephone, and C.E. was crying. C.E. would not tell her motherOwhat was troubling her. When Jamison picked her children up from theirUUfathers home the next day, she noticed that C.E. was crying and  withdrawn. C.E. asked her mother what a  blow job was. The victim then told her mother""that  her father had molested her. He had touched her, he had done things with6 #gRg# H6her.$h"#' '$рB.0i###' '0$Tenn. R. Evid. 803(2) excepts from the hearsay rule any statement relating to a startling event or condition made while the declarant was under$the stress of excitement caused by the event or condition. In order for astatement to be admissible under the excited utterance exception to the hearsayUrule, the proponent of the statement must establish: (1) the occurrence of aUstartling event or condition; (2) the statement related to that startling event orcondition; and (3) the declarant was under the stress of excitement when the' 'statement was made. See N. Cohen, D. Paine & Sheppeard, Tennessee Law$' 'of Evidence  803(2).2 (3d ed. 1995).$ r#$' '$ t`ͪ  Ы t` t`   t`$LThe ultimate test is spontaneity and logical relation to the main$)' 'fevent and where an act or declaration springs out of thertransaction while the parties are still laboring under the excitement؞and strain of the circumstances and at a time so near it as topreclude the idea of deliberation and fabrication.#w$%#$x%%' '$I t`ͪ  Ы t` t`   t`State v. Smith, 857 S.W.2d 1, 9 (Tenn. 1993). Furthermore, the fact that a%}' 'statement is in response to a question does not necessarily exclude it from theexcited utterance exception. Id.${%%`' '$C.0|%`%{%`' '0$We conclude that the trial court did not err in admitting the victims' 'statements to her mother as an excited utterance under Tenn. R. Evid. 803(2). t`V{WP}11  2   ' t`  "Hl'  '"ff t`{WP}10  <<KK  t`Times t`u{WP}12HHlH$  2   We note that the victims question,  what is a blow job? is nonhearsay, as it'  'was not offered to prove the truth of the matter asserted. See Tenn. R. Evid. 801.$ $'֭ %' 'IThe victim was raped by her father. Rape is considered a startling event or6 %#+%{ H6'bcondition. State v. Rucker, 847 S.W.2d 512, 517 (Tenn. Crim. App. 1992); Statev. Person, 781 S.W.2d 868, 872 (Tenn. Crim. App. 1989). There is no disputethat the statement related to the startling event or condition.%{&1$LFurthermore, the victim was obviously under the stress of the event. Although the victim made the statement at least one day after the startling event,;the time interval  is material only as a circumstance bearing on the issue of' 'Lcontinuing stress. Cohen, Paine & Sheppeard, Tennessee Law of Evidence,&' 'supra at 534. Other factors to consider are the  nature and seriousness of the&' 'events, and the appearance, behavior, outlook and circumstances of thedeclarant. State v. Smith, 868 S.W.2d 561, 574 (Tenn. 1993). The ten (10)year old victim had been raped by her father the previous day. Jamison testifiedthat the victim was crying and  withdrawn at the time she made her statement. fThe circumstances surrounding the victims statement establish that it  was notNmade as the result of a conscious fabrication or reflection but was prompted bythe distressed and crying victim seeing and talking to her mother. State v.Person, 781 S.W.2d at 872. &1'$In State v. Gordon, a three (3) year old victim was sexually assaulted byIher uncle. Later during the same day, the victim was attempting to urinate when؞she experienced pain. 952 S.W.2d at 821. Upon her mothers examination ofthe child and finding dried blood in the childs vagina, she asked her daughter,I [w]ho made you hurt like that? Id. The victim then implicated the defendant. Id.'(2$The Tennessee Supreme Court held that the victims statement6 (2R(2 H6implicating the defendant was admissible as an excited utterance. Id. TheUUCourt determined that the childs attempting to urinate was a startling event and@related to the sexual abuse. Id. Furthermore, the Court concluded that [a]lthough the victims parents offered reassurance and asked what hadhappened, the stress of the event had not diminished and the time was short. Id. We find the present facts to be analogous to those in Gordon.(2($IRegardless, if there was error, it was harmless at best. Tenn. R. Crim. P.52(a). The evidence presented against the defendant was overwhelming,33considering the victims detailed testimony describing the specific acts of sexual[nabuse. In light of this evidence, Jamisons testimony that the victim told her thather father  molested her,  touched her, and  had done things with her did notoverly prejudice the defendant.()))$))' '$CONCLUSION0)))z' '0)* $For the foregoing reasons, we affirm the judgment of the trial court.* *(*(*C$ *C*^' '$ t`ͪ  Ы t` t`   t`$$$$$$$ *^' ' *^*z$$$$$$$JOE G. RILEY, JUDGE *z* **CONCUR: ****J** *U* HJܿ**$**' '$ t` t` t` t`0***' '0 t` t` t` t` $*+' '$ t` t` t` t`CURWOOD WITT, JUDGE0+++8' '0++$+$+2+2+@ +@+N +N+\ t` t` t` t` $ +\+j' '$ROBERT W. WEDEMEYER, SPECIAL JUDGE